United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT
the court is defendant Brion Energy Corporation's Motion
to Dismiss the Amended Complaint [Doc. No. 19]. For the
reasons set forth below, the motion is granted.
dispute arises from a Purchase Order Agreement between Brion
and plaintiff Kelvion, Inc., executed August 22,
2012.[1" name="FN1" id=
"FN1">1] Per the Agreement, Kelvion was obligated
to ship Glycol Heat Exchangers to Brion in Alberta, Canada.
To that end, Kelvion provided Brion with an estimate for
freight shipment expenses. Final freight expenses exceeded
Kelvion's estimate by $671, 324.39, which Kelvion
attributes, in part, to “frost laws”-seasonal
restrictions on weight limits and speeds on roadways subject
to thaw weakening. Brion refuses to pay the additional cost.
result, Kelvion filed suit in Oklahoma state court on May 17,
2017, alleging claims for breach of contract, quantum meruit,
and unjust enrichment. The case was removed to this court on
June 21, 2017. A week later, Brion moved to dismiss, in part,
on the basis of a forum selection clause in the Agreement.
Kelvion mooted that motion on July 19, 2017, by filing an
Amended Complaint. The Amended Complaint omits any claim for
breach of contract, but retains the quantum meruit and unjust
enrichment claims. On August 1, 2017, Brion again moved to
dismiss on the basis of the forum selection clause, which
provides: “This Purchase Order shall be governed by and
construed in accordance with the laws of the Province of
Alberta and the Parties agree to accept and submit to the
exclusive jurisdiction of the courts of the Province of
Alberta.” [Article 20.1, Doc. No. 19-1, p. 35].
selection “clauses are prima facie valid and
should be enforced.” Milk ‘N' More, Inc.
v. Beavert, 2d 1342');">963 F.2d 1342, 1346 (10th Cir. 1992);
accord Sun Specialized Heavy Haul, LLC v. Ace Heavy Haul,
LLC, No. 16-CV-491-GKF-PJC, 2016 WL 4942333, at *1 (N.D.
Okla. Sept. 13, 2016). And they “generally come in two
varieties-mandatory or permissive.” See Sun
Specialized, 2016 WL 4942333. Mandatory clauses contain
“clear language showing that jurisdiction is
appropriate only in the designated forum.” Excell,
Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318');">106 F.3d 318,
321 (10th Cir. 1997) (quotation marks and citation omitted).
Permissive clauses merely “authorize jurisdiction in a
designated forum, but do not prohibit litigation
elsewhere.” Id. (quotation marks and citation
omitted). The court enforces a mandatory forum selection
clause unless it is “invalid” or enforcement
would be “unreasonable and unjust” under the
circumstances.” XETA Techs., Inc. v. Exec. Hosp.,
Inc., No. 08-CV-197-GKF-PJC, 2008 WL 5070726, at *1
(N.D. Okla. Nov. 21, 2008).
appropriate way to enforce a forum-selection clause pointing
to a . . . foreign forum is through the doctrine of forum
non conveniens.” Atl. Marine Constr. Co. v.
Dist. Court for the W. Dist. of Tex., 134 S.Ct. 568');">134 S.Ct. 568, 580
(2013). That analysis entails a “balancing of interests
standard.” Id. “Relevant factors
ordinarily include: the plaintiff's choice of forum; cost
and convenience to the parties and witnesses; and public
administration considerations.” Sun
Specialized, 2016 WL 4942333, at *1 (citing Atl.
Marine, 134 S.Ct. at 581, n.6).
valid forum selection clause, however, changes the
calculus.” Id. at *2 (citing Atl.
Marine, 134 S.Ct. at 581). First, “the
plaintiff's choice of venue merits no weight.”
Atl. Marine, 134 S.Ct. at 581. “[B]y
contract[ing] to bring suit in a specified forum-presumably
in exchange for other binding promises by the defendant-the
plaintiff has effectively exercised its ‘venue
privilege' before a dispute arises.” Id.
Second, arguments about the parties' private
interests are irrelevant. “Where parties agree to a
forum-selection clause, they waive the right to challenge the
preselected forum as inconvenient.” Id. The
court “accordingly must deem the
private-interest factors to . . . favor the preselected
forum, ” id. (emphasis added); the court
“may consider arguments about public-interest factors
only, ” id.
“carries a heavy burden” in opposing enforcement
of the Purchase Order Agreement's forum selection clause.
Riley v. Kingsley Underwriting Agencies, Ltd., 969
F.2d 953, 957 (10th Cir. 1992). Kelvion attempts to sidestep
that burden by arguing the clause does not apply to its
quantum meruit or unjust enrichment claims. [Doc. No. 24, pp.
8-9]. The court is unpersuaded. As a general matter,
“the doctrine of quantum meruit . . . applies in the
absence of an express contract”-that is to say, a
claimant may only recover in quantum meruit where relief
“involves obligations outside the scope of [an] express
contract.” See BB&B Const., Inc. v. Hogan,
17 F. App'x 850, 851 (10th Cir. 2001); see also
Hillyer v. Pan Am. Petroleum Corp., 2d 613');">348 F.2d 613, 623
(10th Cir. 1965); Feldman v. MCZ Dev. Corp., Case
No. 12-cv-431-GKF-TLW, 2013 WL 12131596, at *5 (N.D. Okla.
Feb. 4, 2013). So too for unjust enrichment. See Horton
v. Bank of Am., N.A., 189 F.Supp.3d 1286');">189 F.Supp.3d 1286, 1289 (N.D.
Okla. 2016). “[U]njust enrichment is generally
unavailable where the plaintiff has an adequate remedy at
law.” Id. (citing Harvell v. Goodyear Tire
& Rubber Co., 164 P.3d 1028');">164 P.3d 1028, 1035 (Okla. 2006). That
includes circumstances where “‘an enforceable
express contract regulates the relations of the parties with
respect to the disputed issue.'” Id.
(quoting Member Servs. Life Ins. Co. v. Am. Nat'l
Bank & Trust Co. of Sapulpa, 130 F.3d 950');">130 F.3d 950, 957 (10th
to adjudicate this lawsuit, the court “will likely have
to enforce or interpret the [Purchase Order Agreement]
because a valid, express contract between the parties may bar
recovery based upon quantum meruit or unjust
enrichment.” All. Commc'ns Co-op., Inc. v.
Glob. Crossing Telecommc'ns, Inc., No. 06-3023-KES,
2007 WL 1964271, at *9 (D.S.D. July 2, 2007); see also
Cedars-Sinai Med. Ctr. v. Glob. Excel Mgmt., Inc., No.
09-3627 PSG AJWX, 2010 WL 5572079, at *6 (C.D. Cal. Mar. 19,
2010). And there is little doubt that-at a
minimum-Kelvion's claims are factually related to the
parties' Purchase Order Agreement. See [Doc. No.
15, pp. 1-3, ¶¶ 3-5, 7-17, 20-24]; In re
ImagePoint, Inc., No. CIV.A. 3:12-410, 2013 WL 2457900,
at *3 (E.D. Tenn. June 6, 2013); BMR & Assocs., LLP
v. SFW Capital Partners, LLC, 2 F.Supp.3d 128');">92 F.Supp.3d 128, 138
(S.D.N.Y. 2015); Riddle v. Geckobyte.com, Inc., No.
2:16-CV-613 DBH, 2017 WL 758485, at *1 (D. Me. Feb. 27,
2017). To be sure, Brion does not believe the Purchase Order
Agreement supports recovery of the freight costs at issue in
this case. [Doc. No. 24, pp. 8-9]. But that only proves that
the court would have to construe the Agreement and determine
whether its existence and potential application would bar
recovery in this case. For these reasons, the court joins
other jurisdictions which have repeatedly “found that
an agreement's forum[ ] selection clause applies to a
claim for quantum meruit [ ]or unjust enrichment.”
NC Contracting, Inc. v. Munlake Contractors, Inc.,
No. 5:11-CV-766-FL, 2012 WL 5303295, at *6 (E.D. N.C. Oct.
25, 2012) (collecting cases).
generally, Kelvion contends it is improper for the court to
consider the Purchase Order Agreement at the motion to
dismiss stage because it is not central to Kelvion's
claims. [Doc. No. 24, pp. 10-12]. The court disagrees. Where
a “document is referred to in the complaint and is
central to plaintiff's claim, the defendant may submit an
indisputably authentic copy to the court to be considered on
a motion to dismiss.” Dean Witter Reynolds, Inc. v.
Howsam, 261 F.3d 956');">261 F.3d 956, 961 (10th Cir. 2001) (quotation
marks omitted). The Amended Complaint impliedly references
the Purchase Order Agreement; indeed, that transaction put
into motion the transport for which Kelvion seeks additional
payment. [Doc. No. 15, pp. 2-3, ¶¶ 7- 12]. And
whatever Kelvion may think, the existence of an express
agreement may well bar its ability to recover in this case.
See supra, at 3-4.
forum selection clauses are to be enforced as a matter of
public policy, that . . . policy requires that they not be
defeated by artful pleading of claims.” See Coastal
Steel Corp. v. Tighman Wheelabrator Ltd., 2d 190');">709 F.2d 190,
203 (3d Cir. 1983), overruled on other grounds by Wall
Street Aubrey Gold, LLC v. Aubrey, 189 F. App'x 92
(3d Cir. 2006); accord Cedars-Sinai, 2010 WL
5572079, at *6. That is especially important where
“claims grow out of the contractual relationship, or if
‘the gist' of those claims is a breach of that