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Fultz & Son, Inc. v. Browning-Ferris Industries of Ohio, Inc.

United States District Court, N.D. Ohio, Western Division

June 1, 2017

Fultz & Son, Inc., Plaintiff
v.
Browning-Ferris Industries of Ohio, Inc., Defendant

          ORDER

          James G. Carr Sr. U.S. District Judge.

         This is a breach-of-contract suit between two waste-management companies.

         In late 2014, the defendant, Browning-Ferris Industries of Ohio, Inc., approached the plaintiff, Fultz & Son, Inc., about purchasing all of Fultz's business assets. Discussions between the parties ultimately produced two agreements: the Asset Purchase Agreement and the Supply Agreement.

         The Asset Purchase Agreement, which the parties executed on January 28, 2015, specified that Browning-Ferris would purchase Fultz's equipment, accounts receivable, and list of customers. (Doc. 5-1 at 2). The contract contains a forum-selection clause providing that “any disputes arising out of or related in any way to this Agreement . . . shall be brought exclusively in the state or federal courts located in Cuyahoga County, Ohio.” (Doc. 5-1 at 3).

         Finally, the Asset Purchase Agreement stated that “[a]ll Exhibits and Schedules attached hereto or delivered in connection herewith are by this reference incorporated herein and made a part hereof for all purposes as if fully set forth herein.” (Doc. 9-1 at 30).

         About two weeks later, the parties executed the Service Agreement.

         This contract obligated Browning-Ferris deliver to certain types of waste and recyclable materials to Fultz's materials recovery plant in Clyde, Ohio. (Doc. 1-1 at 1). The parties attached the Service Agreement as “Exhibit C” to the Asset Purchase Agreement. (Doc. 5 at 1; Doc. 9-1 at 33, 43-53).

         The parties' relationship soured almost immediately after they executed the Service Agreement. The dispute, which concerns whether Browning-Ferris fulfilled its obligations under the Service Agreement to deliver waste and recyclable materials to the Clyde plant, precipitated the filing of Fultz's complaint for breach of contract and fraud.[1]

         Pending is Browning-Ferris's motion to transfer venue. (Doc. 4).

         Browning-Ferris argues that, given the Asset Purchase Agreement's forum-selection clause, the only proper venue for this dispute is a state or federal court located in Cuyahoga County.

         The company acknowledges that Fultz's claims concern the terms of the Supply Agreement, which lacks a forum-selection clause. But it contends that the Asset Purchase Agreement incorporates the Supply Agreement by reference, and thus that any dispute arising under the Supply Agreement arises, in effect, under the Asset Purchase Agreement and is subject to its forum-selection clause.

         Browning-Ferris therefore asks me to exercise my authority under 28 U.S.C. § 1404(a) to transfer this case to the Eastern Division of the United States District Court for the Northern District of Ohio.

         Fultz responds that the forum-selection clause is inapplicable. (Doc. 6).

         According to Fultz, the Supply Agreement is a fully integrated agreement that neither contains its own forum-selection clause nor incorporates the terms of the Asset Purchase Agreement by reference. For those reasons, Fultz maintains that this suit ...


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