United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Nut & Candy sued TDG Brands in the Circuit Court of Cook
County, Illinois, alleging breach of contract. Doc. 2-1. TDG
removed the case to this court, invoking diversity
jurisdiction. Doc. 2. TDG now moves under 28 U.S.C. §
1404(a) to transfer the case to the District of Arizona. Doc.
6. The motion is denied.
February to July 2016, TDG sent various purchase orders to
Superior, which in turn shipped the requested products to
TDG. Doc. 2-1 at ¶¶ 8-36. Superior alleges that TDG
did not pay for the shipments and now owes $166, 788.88.
Id. at ¶¶ 11, 15, 20, 25, 29, 33, 37,
Master Brokerage Agreement between TDG and Superior has this
choice of law, forum selection, and personal jurisdiction
This Agreement shall be governed by and construed under the
laws of the State of Arizona and the United States as applied
to agreements among Arizona residents entered into and to be
performed entirely within Arizona. Unless waived by
MANUFACTURE in writing for the particular instance (which
MANUFACTURE may do at its option), its sole jurisdiction and
venue for actions related to the subject matter hereof shall
be the Superior Court of the State of Arizona for Maricopa
County or the United States District Court for the District
of Arizona. Both parties consent to the jurisdiction of such
courts and agree that process may be served in the manner
provided herein for giving notices or otherwise as allowed by
Doc. 2-4 at ¶ 13(d). The contract identifies Superior as
“MANUFACTURE.” Id. at 1.
contends that the forum selection clause is valid and
enforceable, and therefore that it mandates transfer of this
suit to the District of Arizona. See Atl. Marine Const.
Co. v. U.S. Dist. Ct. for W. Dist. Of Tex., 134 S.Ct.
568, 575 (2013) (holding that forum selection clauses are
enforceable under § 1404(a)). Superior agrees that the
clause is valid and enforceable, but argues that it gives
Superior the option of commencing suit in a different forum.
is correct. The forum selection clause provides that lawsuits
relating to the contract shall be resolved in Arizona,
except if Superior chooses not to litigate there.
That is exactly what happened here. Superior filed this suit
in Illinois state court on October 7, 2016. For good and
probably unnecessary measure, on November 17, 2016-the day
after TDG removed this suit to federal court and the day
before it moved to transfer-Superior sent a letter to TDG
formally announcing its intent to waive the clause's
requirement that litigation proceed in Arizona. Doc. 10-1.
The clause, by its terms, allowed Superior to do just that.
opposing this outcome, TDG argues that the clause's
language is “undecipherable.” Doc. 10 at 2. That
is wrong. The clause is easy enough to understand: it is a
forum selection provision that allows Superior to waive the
next argues that the clause gives it the “right”
to litigate in Arizona and does not allow Superior to waive
that right. Id. at 2-3. The contract does no such
thing. It simply states that litigation shall take place in
Arizona, and creates an exception if Superior commences suit
elsewhere. That is the opposite of giving TDG an unfettered
right to require that any litigation proceed in Arizona.
contends that the clause, if read in this manner, would
render the contract illusory for lack of mutuality and thus
unenforceable. Id. at 3. That also is wrong. True,
where a contract places obligations only on one party, it is
illusory and unenforceable. See Shattuck v.
Precision-Toyota, Inc., 566 P.2d 1332, 1334 (Ariz. 1977)
(“Parties are, within reason, free to contract as they
please, and to make bargains which place one party at a
disadvantage; but a contract must have mutuality of
obligation, and an agreement which permits one party to
withdraw at his pleasure is void.”). But this contract
does not lack mutuality; rather, it sets forth various
promises by each party to the other, the core of which is
Superior's agreement to ship products to TDG in exchange
these mutual promises, the one-sided forum selection clause
does not render the entire contract illusory. As the Supreme
Court of Arizona has explained: “The benefits or
liabilities of the parties need not be equal … . Where
there are mutual promises between the parties, it is not
necessary to render a particular promise by one party binding
that there be a special promise on the part of the other
party directed to that particular obligation.”
Taylor v. Kingman Feldspar Co., 18 P.2d 649, 651
(Ariz. 1933). Thus, the fact that the forum selection clause
allows Superior to choose a non-Arizona forum does not mean
that it is not bound by the contract; rather, it means only
that one particular provision of the contract is one-sided,
which Arizona law permits.
next argues that even if Superior could lawfully waive the
designated Arizona forum, it did not effect a proper written
waiver given that “[i]t is obvious and axiomatic
… that the filing of a Complaint in the wrong forum
does not constitute a ‘written waiver' of the forum
selection clause.” Doc. 10 at 3. TDG cites no authority
to support this proposition. The contract does not require
Superior to follow any specific procedure for effecting a
written waiver of an Arizona forum. ...