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MANUFACTURING & MKTG. CONCEPTS v. SOUTHERN CALIFOR

March 28, 1996

MANUFACTURING & MARKETING CONCEPTS, INC., Plaintiff,
v.
SOUTHERN CALIFORNIA CARBIDE and HARJEET SINGH, Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court are plaintiff Manufacturing & Marketing Concepts, Inc.'s ("MMCI") motion to remand this case to state court and defendants Southern California Carbide's ("Carbide") and Harjeet Singh's ("Singh") (collectively, "defendants") motion for change of venue. For the reasons that follow, the court grants MMCI's motion to remand and denies defendants' motion for change of venue.

 I. BACKGROUND

 MMCI, an Illinois corporation with its principal place of business in Hoffman Estates, Illinois, manufactures custom machinery. Carbide, a California corporation with its principal place of business in San Diego, California, supplies component parts of the type that MMCI uses in its machines. Singh, a California resident, is the president of Carbide.

 In May 1995, MMCI placed two purchase orders ("Purchase Orders 507 and 508") with Carbide, specifying that Carbide was to deliver the items purchased by July 1995. Both purchase orders included terms and conditions, which provided for such things as damages for breach of the purchase orders and choice of forum for resolution of any disputes arising out of the purchase orders.

 On August 31, 1995, unaware of Carbide's lawsuit, MMCI filed a lawsuit against Carbide and Singh in the Circuit Court of Cook County based on Carbide's breach of Purchase Orders 507 and 508. On October 5, 1995, defendants removed MMCI's case to this court. On October 11, 1995, MMCI filed its motion to remand the case to the circuit court. Two days later, defendants filed their motion to transfer, which was styled as a motion for a change of venue, seeking to have this case transferred to the district court in the Southern District of California.

 II. DISCUSSION

 A. Motion to Remand to State Court

 MMCI moves to remand its cause of action to the Circuit Court of Cook County on the ground that the terms and conditions accompanying Purchase Orders 507 and 508 provide that lawsuits arising out of the purchase orders are to be brought in an Illinois court. Though MMCI does not specify, the court assumes that MMCI's motion is pursuant to 28 U.S.C. § 1447(c).

 Defendants contend that they never saw the terms and conditions that supposedly accompanied the purchase orders, and never agreed to such terms and conditions. Defendants also contend that the forum selection clause designates only a geographic location, and does not preclude defendants from removing this action to federal court. The court finds both arguments without merit, and finds the forum selection clause valid and enforceable.

 1. Defendants' lack of knowledge of the forum selection provision

 Defendants apparently seek to create a question of fact regarding the validity of the forum selection clause by asserting that they never saw the forum selection clause and never agreed to it. Defendants contend that they received Purchase Orders 507 and 508 by fax, that each fax transmission had only one page, and that the purchase orders made no reference to terms and conditions. Defendants argue that throughout the entire relationship between the parties, MMCI had never appended a separate page for terms and conditions on its purchase orders. Singh filed an affidavit to this effect. (See Def.'s Mem. in Resp. to Pl.'s Mot. to Remand at 2-3; id. Aff. of Harjeet Singh.)

 However, MMCI's president, Roger C. Shekhar, counters Singh's affidavit with his own, explaining the relationship between Carbide and MMCI. (See Pl.'s Reply Mem. in Supp. of its Mot. to Remand Ex. A.) According to Shekhar, in May 1995, MMCI began to require Carbide to comply with new terms and conditions because Carbide continually breached the delivery terms of past purchase orders. (Id. Ex. A PP 6-7.) On May 23, 1995, Shekhar sent a cover letter, Purchase Order 507, and the new terms and conditions by fax and by United States mail to Singh. (Id. Ex. ...


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