forum selection clause in the final agreement was clearly visible
to its signers, being the longest of three provisions on the last
page of the agreement, above where the parties signed. See The
Bremen, 407 U.S. at 13 n. 14, 92 S.Ct. at 1914 n. 14 ("The forum
clause could hardly be ignored.") Given these facts, KETS'
arguments that it did not negotiate or discuss the forum
selection clause and that it was not explained to Ann Karlberg do
not "rise to the level of fraud, overreaching, or
unconscionability." Richardson Greenshields Securities v. Metz,
566 F. Supp. 131, 133 (S.D.N.Y. 1983).
The cases KETS cites as support for its "contract of adhesion"
theory involved significantly different facts. They all involved
form contracts with the forum selection clause buried in
boilerplate language in fine print. Colonial Leasing Co. of New
England v. Pugh Bros. Garage, 735 F.2d 380 (9th Cir. 1984);
Couch v. First Guaranty Limited, 578 F. Supp. 331 (N.D.Tex.
1984); G.H. Miller & Co. v. Hanes, 566 F. Supp. 305 (N.D.Ill.
1983); Cutter v. Scott & Fetzer Co., 510 F. Supp. 905 (E.D.Wisc.
1981). These cases recognize a qualitative difference between
form contracts and freely negotiated contracts specifically
tailored by the parties to address their concerns. See e.g.,
Couch, supra, at 333 ("justice requires that a distinction be
drawn between freely negotiated contracts and standard form
contracts"); see also Calamari & Perillo, Law of Contracts,
sec. 9-44 (1977), ("There has been a tendency . . . to treat
contracts of adhesion or standard form contracts differently from
other contracts. This is particularly true with respect to the
duty to read.").
KETS also argues that, even if the forum selection clause is
valid, its enforcement would be so unreasonable as to deprive it
of its "day in court." The Bremen, 407 U.S. at 18, 92 S.Ct. at
1917. First, it should be noted that this language in The
Bremen cannot be interpreted to mean that the party opposing the
forum selection clause has a right to the same judicial process
in the imposed forum that it would have in its chosen forum. This
interpretation would make a mockery of the policy behind
enforcing these clauses. Thus, the court should only ensure that
the opposing party will be treated fairly and have an adequate
chance of presenting his case. See Hoes of America, Inc. v.
Hoes, 493 F. Supp. at 1209.
KETS argues that litigating in West Germany is unreasonable
because most of its witnesses are here, the defective tanning
equipment is here, many documents are in English, and discovery
is much more limited under the West German court system than it
is here. The court finds that none of these factors rise to the
level of unreasonableness that would deprive KETS of its day in
court. While KETS' witnesses are here, the $20,000,000 damages
KETS seeks surely justifies the expense of traveling to West
Germany. See Zima Corp. v. M.V. Roman Pazinski, 493 F. Supp. 268
(S.D.N.Y. 1980); Central Contracting Co. v. Maryland Casualty
Co., 367 F.2d 341 (3d Cir. 1966); Gaskin v. Stumm Handel GmbH,
390 F. Supp. at 369. Much of the evidence seems to be in the form
of franchisees' complaints regarding the quality of the
equipment. These complaints were recorded by KETS' office
personnel, so live witnesses will not be essential. Further,
most of the communication between KETS and JK was done through
Telex, again producing documents that can be introduced into
evidence. These documents, although in English, are easily
translated into German.
Discovery, especially the taking of depositions, is much more
limited in West Germany than in the States. See Shemanski,
Obtaining Evidence in the Federal Republic of Germany: The
Impact of the Hague Evidence Convention on German-American
Judicial Cooperation, 17 Int'l Lawyer 465 (1981). This may make
gathering evidence on JK's manufacturing process and safety
precautions difficult. However, this evidence goes more to KETS
tort claims of breach of implied warranty of merchantability and
breach of implied warranty of fitness for a particular purpose,
and are not central to the dispute.
How these tort claims will fare under German law is unclear,*fn3
but it is not this court's role to guarantee KETS the same
probability of success on all its claims. More importantly, KETS,
by signing the contract, agreed to trial in Germany under German
law, and The Bremen makes clear that the court must enforce
such agreements. See Hoes of America, Inc. v. Hoes, 493 F. Supp.
at 1209; Central Contracting Co. v. Maryland Casualty Co., 367
F.2d at 344 (it may be assumed that the plaintiff received
consideration for the inconvenience of litigating in a foreign
KETS relies heavily on the reasoning in Copperweld Steel Co.
v. Demag-Mannesmann-Bohler, 578 F.2d 953 (3d Cir. 1978), but the
court finds the case nondispositive. In that case, the German
designer maintained its own offices in the United States, and the
equipment in dispute was made and operated in this country.*fn4
The court was faced with a dispute that was overwhelmingly
domestic in nature. The situation before this court has a much
stronger international flavor. Litigating international disputes
is always going to be inconvenient for one (or both) of the
parties, and we find that the parties allocated this burden in a
contract that the court is in no position now to modify.
KETS makes one final argument in an attempt to avoid the
forum selection clause, namely that its enforcement would
contravene Illinois' strong public policy of regulating
franchisor/franchisee relationships. See Ill.Rev.Stat. ch. 121
1/2, § 701 et seq. (1984); ECC Computer Centers of Illinois,
Inc. v. Entre Computer Centers, Inc., 597 F. Supp. 1182 (N.D.Ill.
1984). Even if Illinois law has, for that narrow purpose, a role
in the relationship between the parties, there is a problem with
this argument: the current dispute is not between franchisor and
franchisee, but rather between a distributor and its supplier.
The fact that this dispute affects the relationship between KETS
and its franchisees is not enough to vitiate the strong policy in
favor of forum selection clauses in freely negotiated
One last issue raised by KETS needs to be addressed. KETS
argues that it should be allowed to continue discovery because
we have exercised in personam jurisdiction over JK, citing
Greco v. Kremlin, Inc., 101 F.R.D. 503 (N.D.Ill. 1984) and In
Re Anschuetz & Co., GmbH, 754 F.2d 602 (5th Cir. 1985). The
court implicitly recognized KETS' right to discovery while it
decided JK's motion to dismiss by allowing KETS to serve JK with
interrogatories. However, in the cases cited by KETS the American
court retained jurisdiction and the issue was whether American or
foreign discovery rules should apply when one of the litigants is
from a country which is a party to the Hague Convention. This
issue is not present here, as the court, in dismissing KETS'
action, is giving up all jurisdiction in the case. See Gaskin,
390 F. Supp. at 370; Sanko Steamship Co., Ltd. v. Newfoundland
Refining Co., Limited, 411 F. Supp. 285, 286 (S.D.N.Y.), cert.
denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 136 (1976); cf.
Wright & Cooper, Federal Practice
and Procedure: Jurisdiction, sec. 3846 (1976) (a court loses all
jurisdiction when it transfers a case under 28 U.S.C.A. §
1404(a)). Consequently, the court is now powerless to order
discovery in the case, and KETS will have to bring its requests
to a West German tribunal if it pursues this action in court.
Because we find that the parties entered into a valid contract
whose forum selection clause covers the present dispute, we
dismiss for improper venue.