United States District Court, N.D. Ohio, Eastern Division
EDWARD T. BOWER, et al., Plaintiffs,
ZOUNDS HEARING FRANCHISING, LLC, et al., Defendants.
OPINION AND ORDER
CHRISTOPHER A. BOYKO United States District Judge.
matter comes before the Court upon the Motion (ECF DKT #16)
of Defendants, Zounds Hearing Franchising, LLC and Zounds
Hearing, Inc. (“Zounds”), to Deny Joinder of
Non-Diverse Defendant and Dismiss Plaintiffs' Amended
Complaint, or, in the alternative, to Sever Plaintiffs,
Dismiss Count I of the Amended Complaint and Transfer Case to
Arizona. For the following reasons, the Court transfers the
above-captioned case to the United States District Court for
the District of Arizona for further adjudication of all
their First Amended Complaint (ECF DKT #14), Plaintiffs
allege that they entered into Franchise Agreements in 2013
with Zounds to operate hearing centers in the state of Ohio.
They paid up to $40, 000 each for their franchises.
Plaintiffs claim that Zounds violated the disclosure and
other requirements of the Ohio Business Opportunity
Purchasers Protection Act (“OBOPPA”), R.C. §
1334.01, et seq. They also claim that Zounds failed
to provide any Plaintiff with the required five-day right to
cancel. Plaintiffs seek an Order confirming their right to
rescind the Franchise Agreements and further seek to recover
statutory damages, treble damages and attorney fees.
Franchise Agreement contains a forum selection clause, which
applies to claims other than for injunctive relief and which
provides as follows:
[T]he parties agree any actions arising out of or related to
this Agreement must be initiated and litigated in
the state court of general jurisdiction closest to Phoenix,
Arizona or, if appropriate, the United States District Court
for the District of Arizona. Franchisee acknowledges that
this Agreement has been entered into in the State of Arizona,
and that Franchisee is to receive valuable and continuing
services emanating from Franchisor's headquarters in
Arizona, including but not limited to training, assistance,
support and the development of the System. In recognition of
such services and their origin, Franchisee hereby irrevocably
consents to the personal jurisdiction of the state and
federal courts of Arizona as set forth in this Section.
(Emphasis added.) (§ 22E, ECF DKT #13.)
Franchise Agreements also provide for the governing law:
This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona, without
reference to Arizona's conflict of laws principles.
(§ 22A, ECF DKT #13)
do not allege, nor argue, that the forum selection clause is
invalid or unenforceable or that the clause was obtained by
fraud, duress or other unconscionable means.
LAW AND ANALYSIS
28 U.S.C. § 1404(a), “[f]or the convenience of
parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought.” The court
is typically required to consider the private interests of
the parties, their convenience and the convenience of
potential witnesses, as well as public-interest concerns,
such as systemic integrity and fairness. Then, the court must
decide whether, on balance, a transfer would promote the
interests of justice. Stewart Organization, Inc.
v. Ricoh Corp., 487 U.S. 22, 29-30 (1988).
when a valid and enforceable forum selection clause evidences
the parties' intent to bring an action in a particular
federal district, the forum selection clause must be given
“controlling weight in all but the most exceptional
circumstances.” Atlantic Marine
Construction Co. Inc. v. United States District Court for
the Western District of Texas, et al., 134 S.Ct. 568,
581 (2013). In addition,
when parties agree to a forum selection clause, they waive
the right to challenge the preselected forum as inconvenient
or less convenient for themselves or their witnesses, or for
their pursuit of the litigation. A court accordingly must
deem the private-interest factors to weigh entirely in favor
of the preselected forum ... As a consequence, a district
court may consider arguments about public-interest factors
only. Atlantic Marine, 134 S.Ct. at 568.
Supreme Court focused on valid and enforceable forum
selection clauses that protect the parties'
“settled expectations” whether mandatory
or permissive. Id. at 583. “[T]he
interest of ...