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Motion to Dismiss Pursuant to CPLR 3211 (a)(1) [Documentary Evidence] Should Not Have Been Granted—Plaintiff Rebutted the Presumption of Validity of the Forum Selection Clause of the Relevant Contract

The Second Department determined Supreme Court should not have granted defendants’ motion to dismiss based upon the forum selection clause in the relevant contract.  Plaintiff rebutted the presumption of the validity of the clause:

A party seeking dismissal of a complaint under CPLR 3211(a)(1) must submit documentary evidence that ” conclusively establishes a defense to the asserted claims as a matter of law'” … . A contract provision may constitute documentary evidence under CPLR 3211(a)(1) …, and a forum selection clause contained in a contract may provide a proper basis for dismissal of a complaint under CPLR 3211(a)(1) … . A forum selection clause is “prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court” … . Accordingly, a forum selection clause will be given effect in the absence of a ” strong showing'” that it should be set aside … .

Here, the plaintiff has made the requisite strong showing that the forum selection clause in the nondisclosure agreement was “unreasonable.” Specifically, the plaintiff has contended, without contradiction, that neither the parties nor the agreement has any connection to the State of Delaware: none of the parties is located in Delaware, the nondisclosure agreement was not executed in Delaware, and performance of the agreement was not to take place in Delaware … . Accordingly, the prima facie enforceability and validity of the forum selection clause has been rebutted and, therefore, that clause does not “conclusively establish[ ] a defense to the asserted claims as a matter of law”… . US Mdse Inc v L & R Distribs Inc, 2014 NY Slip Op 07495, 2nd Dept 11-5-14

 

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