The opinion of the court was delivered by: Mills, District Judge.
In this breach of contract case, Defendant moves to dismiss for lack of
personal jurisdiction and improper venue.
But the forum selection clause in the contract provides for suit where
the "plaintiff" is "located."
Because the Plaintiff in this case has its corporate offices in the
Central District of Illinois and is thus "located" here, the motion must
This cause comes before the Court on several motions: UNECO'S motion to
dismiss, UNECO's motion for leave to file a reply to the response to the
motion to dismiss, and Hanson's motion for leave to file a sur-reply,
contained in Hanson's Objections to UNECO's motion for leave to file
Hanson Engineers ("Hanson") is a corporation that provides engineering
services. On December 4, 1997, Hanson entered into a contract with UNECO
which called for Hanson to provide design and engineering services for
the development or construction by UNECO of a power plant in Kogalym,
Russia. While the substantive provisions of the contract are not
important for purposes of this motion, the contract contained a forum
selection clause that provided "[i]f the parties cannot agree upon an
amicable settlement, then all disputes and differences are to be
submitted to the United States District Court of that District, where
plaintiff is located." The contract also contained a choice of law
provison that stipulated that Utah's law would govern the contract.
Hanson has instituted this suit against UNECO alleging that Hanson
performed the work that was called for in the contract but that UNECO
failed to pay for a portion of the work. Hanson also alleges that UNECO
made changes in the plans and specifications as the work progressed and
that Hanson should be paid the value of those additional services
rendered by Hanson.
UNECO filed a motion to dismiss pursuant to Rules 12(b)(2) and 12
(b)(3) of the Federal Rules of Civil Procedure. UNECO argues that it has
not established sufficient contacts with Illinois to confer personal
jurisdiction over UNECO. Also, UNECO contends that the forum selection
clause, properly interpreted, allows suit in only two places — Utah
or New Jersey. This argument is based on the fact that the forum
selection clause, set out above, provides that suit may be brought where
plaintiff is "located" and the contract lists only two addresses of the
parties — Utah address for UNECO and a New Jersey address for
Hanson. UNECO, in other words, argues that the term "located" means the
addresses that are mentioned in the contract. Hanson argues that the term
"located" should be interpreted more broadly to include at least the
place where Hanson is headquartered and has a substantial business
presence. Thus, on Hanson's reading, but not on UNECO's, Hanson is located
in Illinois where it has its corporate offices.
Local Rule 7.1(B)(1) provides that "[n]o reply to a response is
permitted, unless the response is to a motion for summary judgment."
Though this rule does not preclude a party from seeking leave to file a
reply, leave should not be so freely granted that it would render the
general prohibition of replies ineffective. In addition, many times
parties will request, as UNECO does here, leave to file a sur-reply. The
Court will not condone these attempts by the parties in this case to have
the last word.
In addition, UNECO's suggestion that the submission of extrinsic
documents converts this motion into a motion for summary judgment is not
correct. Rule 12(b) of the Federal Rules of Civil Procedure provides
that Rule 12(b)(6) motions may be converted into motions for summary
judgment under Rule 56 if "matters outside the pleadings are presented to
[the Court]." There is no comparable provision for converting motions
pursuant to Rule 12(b)(2) or 12(b)(3) into motions for summary
judgment. See Weidner Communications, Inc. v. H.R.H. Prince Bandar Al
Faisal 859 F.2d 1302, 1306 (7th Cir. 1988). Thus, the Court declines the
invitation to ...