United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Pinkus sued Sirius XM Radio, Inc. (“SiriusXM”),
alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. Doc. 1. SiriusXM
answered and brought third-party indemnification claims
against several companies that made telemarketing calls for
it. Doc. 11. One of the third-party defendants, DialAmerica
Marketing, Inc., has moved to dismiss the third-party claims
against it on jurisdictional grounds and, in the alternative,
for forum non conveniens. Doc. 59. The motion is
DialAmerica has moved to dismiss on jurisdictional grounds
and for forum non conveniens rather than on the
merits, the relevant background includes not only the
third-party complaint, but also the evidentiary materials
submitted by both sides. Because no party has requested an
evidentiary hearing, the court must accept SiriusXM's
undisputed factual averments and must resolve all genuine
factual disputes in its favor. See uBID, Inc. v. GoDaddy
Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010);
Purdue Research Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773, 783 (7th Cir. 2003); Diamond Mortg. Corp.
of Ill. v. Sugar, 913 F.2d 1233, 1245 (7th Cir. 1990);
Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir.
November 2016, Pinkus brought this suit against SiriusXM,
alleging that it violated the TCPA-in particular, 47 U.S.C.
§ 227(b)(1)(A)(iii)-when it attempted to solicit him by
calling his cell phone using an automated telephone dialing
system (“ATDS”) and prerecorded messages. Doc. 1
at ¶¶ 10, 19. As permitted by Federal Rule of Civil
Procedure 14(a)(1), SiriusXM filed a third-party complaint
against six vendors with whom it had contracted to make sales
calls. Doc. 11.
here, SiriusXM alleges that DialAmerica breached its
contractual duties to SiriusXM by failing to “indemnify
and hold SiriusXM harmless” against Pinkus's
claims. Doc. 11 at ¶ 105. SiriusXM's Master Services
Agreement (“MSA”) with DialAmerica required
DialAmerica to “comply with all applicable Federal,
state and local laws and regulations in connection with the
performance of its obligations under this Agreement.”
Id. at ¶ 30. The MSA's indemnification
clause required DialAmerica to:
indemnify, defend and hold SiriusXM harmless from and against
all claims, suits, actions, damages, settlements,
liabilities, losses, expenses and costs arising out of, in
connection with or based upon … any breach of this
Agreement, including breach of any obligation, duty,
representation or warranty made herein, or … the
willful misconduct or negligence of DialAmerica.
Id. at ¶ 37 (brackets omitted). The MSA's
choice of law and forum selection clause stated: “This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its
choice of law rules. Each Party hereby submits to the
exclusive jurisdiction of courts located in the State of New
York.” Doc. 60-1 at ¶ 13.3.
argues that the MSA's forum selection clause, which
identifies New York as the exclusive forum for disputes
arising under the MSA, mandates dismissal of SiriusXM's
third-party claims against it on forum non
conveniens grounds. Doc. 60 at 11-15. DialAmerica also
contends that SiriusXM's third-party claims are unripe
and, alternatively, that the court should relinquish
jurisdiction over them under 28 U.S.C. § 1367(c).
Id. at 15-21. Although questions of subject matter
jurisdiction generally must be resolved prior to other
issues, the Supreme Court has carved a narrow exception,
holding that “a federal court has leeway to choose
among threshold grounds for denying audience to a case on the
merits.” Sinochem Int'l Co. v. Malaysia
Int'l Shipping Corp., 549 U.S. 422, 431 (2007)
(internal quotation marks omitted). Among those threshold
grounds is forum non conveniens. See id. at
431-32; In re LimitNone, LLC, 551 F.3d 572, 576 (7th
Cir. 2008). The court exercises its discretion to begin with
forum non conveniens.
valid forum selection clause governs a dispute, it should be
“given controlling weight in all but the most
exceptional cases, ” and “the party defying the
forum-selection clause … bears the burden of
establishing that [dismissal] is unwarranted.” Atl.
Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of
Tex., 134 S.Ct. 568, 581 (2013) (first brackets in
original, second brackets added). SiriusXM does not dispute
that the MSA's forum selection clause is valid as a
general matter, nor does it dispute that if it had sued
DialAmerica as a first-party plaintiff, the clause would
govern. SiriusXM argues instead that because Pinkus, not it,
chose this forum, Rule 14(a)-which permits a defendant to
file a complaint as a third-party plaintiff against a non-
party, which then becomes a third-party defendant-overrides
the forum selection clause and permits its third-party claims
against DialAmerica to proceed in this District as part of
this case. Doc. 76 at 10-17.
support, SiriusXM cites cases for the proposition that
third-party defendants generally have no right to object to
venue. Doc. 76 at 10-13. Those cases are inapposite;
DialAmerica does not assert that venue is improper under 28
U.S.C. § 1391, but rather that it and SiriusXM have
specifically agreed to a different forum for MSA-related
disputes between them. Doc. 78 at 9. So the court must decide
whether DialAmerica may invoke the MSA's forum selection
clause where, as here, SiriusXM did not choose this forum but
instead was brought here by Pinkus.
urging the court to answer that question in the negative,
SiriusXM relies primarily on American Licorice Co. v.
Total Sweeteners, Inc., 2014 WL 892409 (N.D. Cal. Mar.
4, 2014), which held that “Rule 14 overrides venue
considerations.” Id. at *6. In so holding,
American Licorice acknowledged that “[t]he
parties d[id] not cite, nor could the Court find, legal
authority that decides the priority between a forum selection
clause and a Rule 14 impleader claim.” Ibid.
Absent such authority, the court reasoned that the policy of
judicial efficiency underlying Rule 14(a) would be undermined
if a forum selection clause could override it. Ibid.
cites several decisions that reach the opposite result and
enforce forum selection clauses invoked by third-party
defendants against third-party plaintiffs. See,
e.g., Global Quality Foods, Inc. v. Van Hoekelen
Greenhouses, Inc., 2016 WL 4259126, *5 (N.D. Cal. Aug.
12, 2016) (expressly rejecting American Licorice);
Robrizine v Big Lots Stores, Inc., 2016 WL 3459733
(N.D. Ill. June 24, 2016). The court agrees with those
decisions. Although judicial efficiency is important, the
Supreme Court has instructed that forum selection clauses
should be enforced “in all but the most exceptional
cases.” Atl. Marine Const. Co., 134 S.Ct. at
581. And because “[c]onsiderations of judicial economy
alone do not permit [courts] to ignore a presumptively valid
forum selection clause, ” Global Quality Foods,
Inc. 2016 WL 4259126 at *5 (internal quotation marks