The opinion of the court was delivered by: ALESIA
Before the court is defendant GUK-Falzmaschinen Griesser & Kunzmann GmbH & Co. KG's ("G&K"), motion to dismiss plaintiff Vijuk Equipment, Inc.'s ("Vijuk"), second amended complaint pursuant to FED. R. Civ. P. 12(b)(3). As set forth fully below, the court grants G&K's motion to dismiss.
Plaintiff Vijuk, an Illinois corporation with its principal place of business in Elmhurst, Illinois, manufactures and distributes equipment and spare parts, such as "folding machines," used in the paper industry. Defendant GUK-Falzmaschinen Griesser & Kunzmann GmbH & Co. KG ("G&K") is a German corporation that manufactures pharmaceutical and miniature folding machines and their spare parts and sells its products to distributors, such as Vijuk, throughout the world. Former defendant National Label,
a Delaware corporation with its principal place of business in Lafayette Hill, Pennsylvania, manufactures labels and instructional paper inserts and is a large customer for folding machines.
In 1967, Michael Vijuk founded Michael Vijuk Bindery Consulting Limited ("Vijuk Bindery") in Windsor, Ontario, Canada, and in 1974 moved the company to Toronto, Ontario, Canada. (Aff. of Michael Vijuk P 3; Aff. of Joseph M. Vijuk P 3.) In 1977, Vijuk Bindery and G&K entered into a contract pursuant to which Vijuk Bindery became the exclusive distributor of G&K equipment and spare parts for "all of Canada and all of the United States" (the "territory"). The contract provided that G&K would permit "no sales, promotions, or distributions of its products in the territory" except through Vijuk Bindery. The contract also contained a forum selection clause, which provided that the contract "shall be governed and interpreted in accordance with the laws of Canada and any proceedings hereunder conducted in the courts of the Province of Ontario."
In 1982, Vijuk became successor-in-interest to Vijuk Bindery and moved its offices from Canada to Elmhurst, Illinois. (Aff. of Michael Vijuk P 4; Aff. Joseph M. Vijuk P 4.) In February 1995, G&K sold two folding machines to National Label, without using Vijuk as distributor in the transaction. Vijuk sued G&K in this court for breach of contract and National Label for tortious interference with contract,
based on G&K's alleged violation of the October 1977 distribution agreement.
G&K has moved to dismiss Vijuk's complaint on the ground that Vijuk brought its cause of action in an improper forum. For the following reasons, the court grants G&K's motion and dismisses Vijuk's complaint against G&K.
The court will apply federal law in determining whether to enforce the 1977 agreement's forum selection clause. See Frediani & Delgreco, S.P.A. v. Gina Imports, Ltd., 870 F. Supp. 217, 219 (N.D. Ill. 1994) (stating that even though the Seventh Circuit has not reached the issue, a majority of federal courts apply federal law in determining the enforceability of forum selection clauses). See also Northwestern Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990) (in dictum, stating that the parties' agreement that federal law applied to the enforceability of forum selection clause was probably correct): Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (holding that federal law applies to the consideration of a forum selection clause in the case of a 28 U.S.C. § 1404(a) transfer).
B. Enforceability of the forum selection clause
G&K argues that the 1977 agreement's forum selection clause is valid and enforceable, and that it requires Vijuk to bring its cause of action against G&K in Ontario, Canada. Therefore, according to G&K, the action before this court must be dismissed because it has been brought in an improper forum.
Vijuk counters, first, that certain oral and written modifications to the 1977 agreement between it and G&K supersede the forum selection clause. Vijuk contends that when it moved to Illinois, the parties orally agreed that Illinois would be the forum for and Illinois law would govern all disputes. (Aff. of Joseph M. Vijuk P 6; Aff. of Michael Vijuk P 4.) Then, to memorialize this agreement, Vijuk added an Illinois choice of law provision to all purchase order contracts it used with G&K. (Aff. of Joseph M. Vijuk P 7; Aff. of Michael Vijuk P 6.) This provision states: "This order and agreement of sale resulting from its acceptance shall be governed by and construed according to the laws of the State of Illinois." (Resp. to Mot. to Dismiss, Ex. A. P 7.)
G&K's president, Anton Kunzmann, denies that he agreed to modify the contract to make Illinois the parties' forum of choice. (Mot. to Dismiss, Ex. A PP 2-6.) Furthermore, the Illinois choice of law provision on the purchase order contract by its very terms relates only to the particular transaction represented by the purchase order contract. The transaction at issue in the present case was between G&K and National Label, neither of which would have used a Vijuk purchase order contract for the transaction. Consequently, any choice of law provision on Vijuk's purchase order contracts, even if it was valid, cannot apply to the transaction on which Vijuk's ...