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Frazetta v. Books

April 6, 2009

FRANK FRAZETTA PLAINTIFF
v.
UNDERWOOD BOOKS, TIM UNDERWOOD DEFENDANTS



The opinion of the court was delivered by: (judge Vanaskie)

MEMORANDUM

The present action stems from a series of publication agreements entered into between Plaintiff, Frank Frazetta, and Defendants Underwood Books, Underwood Books, Inc., and Tim Underwood. Each of the publication agreements contained a clause, entitled "Applicable Laws and Modification," which provided that the agreements shall be interpreted under the laws of the state of California and that the Plaintiff "shall submit to the jurisdiction of the courts of the State of California with regard to any claim, action or proceeding with respect to this Publishing Agreement." (Dkt. Entries 11-2, at ¶ 17; 11-3, at ¶ 15; 11-4, at ¶15.)*fn1 Defendants moved for dismissal of this action based, inter alia, on the assertion that this clause is a forum selection clause that mandates that Frazetta bring any action concerning the publishing agreements in a California court. For the reasons that follow, Defendants' Motion to Dismiss will be granted.*fn2

I. Background

Plaintiff is a Pennsylvania citizen residing in Monroe County. (Dkt. Entry 11, at ¶ 2.) Underwood Books is a sole proprietorship with its headquarters in California. (Id. at ¶ 4.) Tim Underwood, a citizen of California, is the sole proprietor of Underwood Books (Id. at ¶ 6), and Underwood Books is the successor in interest to Underwood Books, Inc. (Id. at ¶ 5.) Underwood Books, Inc., was a California corporation with its principal place of business in California. (Id. at ¶ 3.)

Plaintiff, a well-known artist, and Underwood Books, Inc., ("Underwood") entered into three agreements which granted Underwood a license to reproduce certain artistic images created by Plaintiff (collectively "the Agreements"). (Id. at ¶¶ 11-13.) All negotiations surrounding the Agreements were undertaken by Plaintiff's wife, Ellie Frazetta, on his behalf and with his consent and permission. (Id. at ¶ 2.) Plaintiff executed the Agreements in Pennsylvania and Defendants shipped, sold, and delivered the books to residents of Pennsylvania, both directly and through distributors. (Id. at ¶¶ 14, 18.)

Each of the Agreements contained similar language regarding the terms of the Agreement, including the royalty schedule and payments to be made to Plaintiff. (Dkt. Entries 11-2; 11-3; 11-4.) The Agreements each contain identical provisions, entitled "Applicable Law and Modification" that state:

This Agreement shall be interpreted according to the laws and statutes of the state of California and of the United States of America. . . . The Artist shall submit to the jurisdiction of the courts of the State of California with regard to any claim, action or proceeding with respect to this Publishing Agreement. (Dkt. Entries 11-2, at ¶ 17; 11-3, at ¶ 15; 11-4, at ¶15.)

Pursuant to the Agreements, the Defendants had the responsibility of providing Plaintiff with semi-annual statements and royalty payments. (Dkt. Entry 11, at ¶ 20.) Plaintiff asserts that Defendants failed to provide him with the. (Id. at ¶ 21.) In addition to these breaches of contract, Plaintiff alleges that Defendants have failed to pay required advances and royalties; Defendants failed to fulfill their duty to sell the books at prices other than at deep discount; Defendants failed to disclose the custom and practice of selling books at deep discount; Defendants intentionally made promises that they did not intend to fulfill; and Defendants improperly exploited Plaintiff's name and fame. (Id. at ¶ 92.)

On June 5, 2008, Plaintiff filed an amended complaint asserting ten claims for relief including, inter alia claims for breach of contract. (Dkt. Entry 11.) Defendants filed the current Motion to Dismiss on June 20, 2008. (Dkt. Entry 13.) The motion has been briefed, and oral argument heard on September 2, 2008. (Dkt. Entries 14, 19, 22.) The matter is ripe for disposition.

II. Discussion

Defendants assert that the "Applicable Laws and Modification" clause is a mandatory forum selection clause which requires that all claims related to the Agreements be brought and tried in California. Plaintiff counters that the Middle District of Pennsylvania is an appropriate forum for this litigation because the quoted clause concerns jurisdiction, not venue. Plaintiff argues alternatively that, in the event the clause is regarded as a forum selection provision, choice of forum is permissive, as opposed to mandatory. (Dkt. Entry 19, at 3.) The parties agree that interpretation of this clause is governed by federal law.*fn3 (Dkt. Entry 28, at 4:1-4, Oral Argument).

A. Forum Selection Clauses

While a plaintiff's choice of forum is ordinarily given deference by the courts, deference is improper if "the plaintiff has already freely contractually chosen an appropriate venue." Jumara v. State Farm Ins. Co., 55 F.3d 873, 880 (3d Cir. 1995). A forum selection clause is "'a manifestation of the parties preferences as to a convenient forum.' Any 'deference to the filing forum would only encourage parties to violate their contractual obligations.'" Cadapult Graphic Syss. v. Tektronix, Inc., 98 F. Supp. 2d 560, 567-68 (D.N.J. 2000) (quoting Jumara, 55 F.3d at 880; In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989)).

Plaintiff alleges that venue is proper in this Court under 28 U.S.C. § 1391(a)(2) because "a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated" in this district and the clauses in the Agreements are not forum selection clauses. (Dkt. Entry 11, at ¶ 10.) Although venue may lie in this case, the pertinent ...


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