Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge
CASE TITLE DOCKET ENTRY TEXT
Defendant Festo Corporation's motion to dismiss or transfer [12-1] is denied. Festo shall file its responsive pleading no later than October 27, 2011. The parties shall prepare a joint proposed scheduling order setting forth proposed deadlines for discovery and dispositive motions, and deliver a copy to chambers no later than November 3, 2011. The parties shall report for a status hearing on November 8, 2011, at 11:00 a.m.
O [ For further details see text below.] Docketing to mail notices.
Plaintiff American Plastics Technologies, Inc. sued defendant Festo Corporation for breach of contract in state court. Festo first removed the case from state court to this court, and now seeks to either have it dismissed or transferred to New York, its principal place of business. For the reasons that follow, Festo Corporation's motion is denied.
The parties agree that on October 2, 2008, Festo provided American Plastics with a quotation for parts and services it needed to operate eight plastic molding machines it had purchased. In addition to describing the parts and services American Plastics sought along with their price, the quotation stated that "Festo's Terms and Conditions of Sales shall apply. To review our Terms and Conditions, please go to www.festo.com/us/terms."
October 2008 Quotation (attached as Exhibit A to Motion to Dismiss [12-1]) at 2. Festo's Terms and Conditions at the time (which the court will refer to as the 2008 Terms and Conditions) included the following provision:
All aspects of this Agreement and its performance shall be governed by the law of New York. Each party hereby consents to jurisdiction of and venue in the federal and state courts for the Eastern District of New York.
2008 Terms and Conditions (attached as Exhibit B to Motion to Dismiss [12-1]) at 1. In an undated Purchase Order, American Plastics accepted Festo's quotation. Purchase Order (attached as Exhibit C to Motion to Dismiss [12-1]) at 1. On October 30, 2008, Festo provided American Plastics with an Order Confirmation for items totaling $79,999.84. Order Confirmation (attached as Exhibit D to Motion to Dismiss [12-1]) at 1.
According to Festo, "[o]ver the next few months, the parties continued to add to the contract by various quotations, purchase orders, and order confirmations-both verbal and written." Motion to Dismiss [12-1] at 3. But of all these alleged subsequent purchases, the parties have identified only one. Specifically, on January 15, 2009, Festo sent a quotation to American Plastics for an item described as "Umbilical," at a cost of $2,080.59. This quotation also advised American Plastics that "Festo Terms and Conditions apply." Quotation dated January 15, 2009 (attached as Exhibit E to Motion to Dismiss [12-1]) at 2. But rather than referring American Plastics to its website for the terms and conditions, the quotation states that a "copy is available upon request." According to Festo, in the months since American Plastics' ...