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HANSON ENGINEERS INC. v. UNECO

September 7, 1999

HANSON ENGINEERS INC., PLAINTIFF,
v.
UNECO, INC., DEFENDANT.



The opinion of the court was delivered by: Mills, District Judge.

OPINION

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 be denied.

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 reply.

I. BACKGROUND

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.

II. ANALYSIS

A. Replies Ad Infinitum

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 ...


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