The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge
Atofina Chemicals Inc. ("Atofina") filed a breach of contract action
against defendant Sierra Chemical Company ("Sierra") for failing to pay
for goods delivered. Plaintiff subsequently filed an amended complaint,
alleging that by breaching its contract with Atofina (Count I) and by
refusing to make payment for goods received (Count II), defendant was
unjustly enriched (Count III).
Currently pending before the court is defendant's motion to 1) dismiss
the amended complaint pursuant to Federal Rule Civil Procedure 12(b)(2)
for lack of personal jurisdiction. In the event that this court finds
that personal jurisdiction is proper, defendant moves to 2) dismiss the
action pursuant to Federal Rule Civil Procedure 12(b)(3) for improper
venue; or alternatively, 3) transfer the case to the District of Nevada
pursuant to § 1404(a); or 4) dismiss part of the action pursuant to
Federal Rule Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted.*fn1 The motion will be denied.
Atofina, also known as Elf Atochem North America Inc., and Sierra
entered into a distributorship agreement on March 27, 1996. Def.'s Orig.
Mot. at 3 n. 2;*fn2 Amend. Compl. ¶ 4, Exhibit A. The agreement was
effective as of January 1, 1996. Def.'s Orig. Mot. v. 15; Distributorship
Agreement, see Amend. Compl., Exhibit A. Under the terms of the
distributorship agreement, Sierra acted as distributor for plaintiff's
products in Nevada, California, Utah, and Idaho. Distributorship
Agreement ¶ 3. The parties' relationship lasted until 2001; however,
the parties dispute whether the contract was still in effect beyond 1996.
Under paragraph 14 of the distributorship agreement, the agreement was to
"continue in effect for a period of one year." Def.'s Orig. Mot. at 3 n.
1, 9. Defendant argues that based on this language the contract
terminated December 31, 1996. Def.'s Orig. Mot. ¶ 17. Plaintiff
contends that the parties continued to operate in the same fashion under
the contract until the end of June 2001. Pl.'s Reply at 2; Pl.'s Memo. at
The distributorship agreement provided for jurisdiction in Pennsylvania
for disputes arising under the agreement: "[a]ny litigation arising
hereunder or related to the relationship created herein shall be instituted by DISTRIBUTOR in the appropriate
federal or state court located in Philadelphia County, Philadelphia. In
the event [plaintiff] elects to institute any action in said courts,
DISTRIBUTOR expressly consents to jurisdiction in said courts." Def.'s
Orig. Memo. at 8 n. 3; Pl's Memo. at 1-2;*fn3 Distributorship Agreement
Sometime subsequent to the execution of the 1996 distributorship
agreement, defendant allegedly sent plaintiff purchase orders containing
a choice of law provision that stated that "[t]he Buyer and Seller agree
that this Purchase Order is made and executed in the State of Nevada and
shall be governed by the laws of the State of Nevada." Def's Memo. ¶
11; Purchase Order ¶ 9, Def.'s Exhibit C.
Throughout their relationship, plaintiff also allegedly sent defendant
a series of invoices. Def.'s Orig. Memo. at 9; Pl's Memo. at 2. Each
invoice provided that "[t]his contract shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania. Any
lawsuit brought by Buyer [Sierra] arising out of the transactions covered
hereunder shall be instituted in the appropriate state or federal court
located in Philadelphia County, Pennsylvania, and Buyer [Sierra] further
submits itself to the jurisdiction of said courts in the event Seller
[Atofina] elects to institute any action in said courts."*fn4 Def.'s
Memo. ¶ 5; Pl's Memo. at 2; Invoice Terms & Conditions ¶ 14,
see Amend. Compl., Exhibit C.
Plaintiff brought this suit in the Eastern District of Pennsylvania
pursuant to the forum selection clauses included in the distributorship agreement and the
invoices. Amend. Compl. ¶¶ 5, 9.
I. Motion to Dismiss Pursuant to 12(b)(2) for Lack of Personal
Defendant contends that this court lacks personal jurisdiction and
moves to dismiss the complaint pursuant to 12(b)(2). Def.'s Mot. ¶¶
6-8. Once a defendant raises a jurisdictional defense, the burden shifts
to the plaintiff to demonstrate that the relevant jurisdictional
requirements are met. Mellon Bank (East) PSFS v. Farino,
960 F.2d 1217, 1223 (3d Cir. 1992). Plaintiff must support this burden
through "sworn affidavits or other competent evidence." North Penn
Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d ...