United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge.
a breach-of-contract suit between two waste-management
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.
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).
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).
two weeks later, the parties executed the Service Agreement.
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,
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
is Browning-Ferris's motion to transfer venue. (Doc. 4).
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
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.
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
responds that the forum-selection clause is inapplicable.
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 ...