Buc-ee's, Ltd. v. Bucks, Inc.
Buc-ee's, Ltd. v. Bucks, Inc.
Opinion of the Court
ORDER
Pending before the Court is Defendants Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson’s Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6), and, in the Alternative, Motion to Transfer Venue 'Pursuant to 28 U.S.C. § 1404(a) (Document No. 22). Having considered the motion, submissions, and applicable law, the Court determines the motion should be granted in part and denied in part.
I. BACKGROUND
This is a trademark infringement case. Plaintiff Buc-ee’s, LTD. (“Buc-ee’s”) owns and operates thirty-two convenience stores throughout Texas. Buc-ee’s owns the registered “BUC-EE’S” trademark. Defendant Bucks, Inc. (“Buck’s”) also owns and operates .convenience stores. Buck’s owns the registered “BUCKY’S” trademark. Defendant BSD Bright Site Development (“BSD”) allegedly works with Buck’s to find property for Buck’s to commercially develop.
A. The 2008 Nebraska Litigation
On January 4, 2006, Buck’s filed an application to register the BUCKY’S mark with the United States Patent and Trademark Office (the “USPTO”). On April 3, 2006, Buc-ee’s filed an application to register the BUC-EE’S mark with the USPTO. On September 15, 2006, the USPTO. suspended the BUC-EE’S application pending the final disposition of the previously filed BUCKY’S application. As a result, on June 13, 2007, Buc-ee’s filed a notice of opposition against the BUCKY’S application with the Trademark Trial and Appeal Board. In response to Buc-ee’s"notice of opposition, on December 2, 2008, Buck’s filed a complaint against Buc-ee’s in the United States District Court for the District of Nebraska for unfair competition, violations of the Nebraska Uniform Deceptive Trade Practices Act, and declaratory relief (the “Nebraska Lawsuit”),' On September 16, 2009, Buck’s and Buc-ee’s entered into a co-existence agreement (the “Agreement”), settling the Nebraska Lawsuit. Subsequently, Buc-ee’s obtained registration of the BUC-EE’s mark and Buck’s of the BUCKY’S mark. The Agreement not only resolved the Nebraska Lawsuit, but also “memorializ[ed] [each par
B. The Current Litigation
Buc-ee’s now alleges the Defendants are collectively purchasing property, seeking zoning approvals, appearing before zoning commissions, and obtaining licenses from the Texas Alcoholic Beverage Commission all in an effort to operate convenience stores and gas stations in Texas using the BUCKY’S mark. Based on these allegations, on March 14, 2017, Buc-ee’s filed a complaint in this Court against the Defendants under Texas law and the federal Lanhanv Act for trademark infringement, trademark dilution, unfair competition, false designation, and unjust enrichment; On May 5, 2017, Buck’s, BSD, and Richardson (collectively, the “Bucks Defendants”) moved to dismiss Buc-ee’s lawsuit pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively, to transfer the case to the District of Nebraska pursuant to 28 U.S.C. § 1404.
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure mxv
Federal Rule of Civil Procedure 12(b)(1) requires that a court dismiss a claim if the court does not have subject matter jurisdiction over the dispute. Fed. R. Crv. P. 12(b)(1). A motion for lack of subject matter jurisdiction under Rule 12(b)(1) must be considered before any motion on the merits because subject matter jurisdiction is required to determine the validity of any claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (6th Cir. 1994). “Lack of subject matter jurisdiction .may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Id. Unlike a court considering a Rule 12(b)(6) or Rule 56 motion, district courts have a “unique power ... to make factual findings which are decisive of [subject matter] jurisdiction” when considering a motion under Rule 12(b)(1) that raises questions of fact relevant to subject matter jurisdiction. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981).
B. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ ... it demands more than ... ‘labels and conclusions.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “ ‘[A] formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F,3d 191, 205 (5th Cir. 2007)
III. LAW & ANALYSIS
The Bucks Defendants move to (1) dismiss Buc-ee’s case pursuant to Rule 12(b)(1); (2) transfer Buc-ee’s case pursuant to 28 U.S.C. § 1404(a); or (3) dismiss Buc-ee’s case as to BSD and Richardson pursuant to Rule 12(b)(6). The Court addresses each contention in turn.
A. .The Bucks Defendants’ 12(b)(1) Mo- • tion to Dismiss
1. BSD and Richardson
The Agreement contains a covenant not to sue (the “Covenant”) that the Bucks Defendants contend moots Buc-ee’s claims. As a' threshold issue, the parties do not dispute that BSD and Richardson were not signatories to the Agreement.
2. Buck’s
The parties agree Buck’s -and Buc-ee’s were signatories to and bound by the Agreement. The Court therefore addresses whether the Covenant moots Buc-ee’s claims against. Buck’s. Under the Covenant, Buc-ee’s and Buck’s each agree not to file a lawsuit against the. other based on each party’s use of their respective marks if such use otherwise complies with the Agreement’s terms. Buck’s contends its alleged use of the BUCKY’S mark complies. with the Agreement. Thus, Buck’s contends the Covenant contractually restrains Bu.c-ee’s from filing a lawsuit based on such use, rendering Buc-ee’s current lawsuit moot. Buc-ee’s contends the applicability of the Covenant is a merits issue rather than one of jurisdiction and should not be decided on a 12(b)(1) motion to dismiss.
“Article III of the United States Constitution grants the Judicial Branch authority to adjudicate Cases and Controversies.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). Absent a case or controversy, a federal court does not have subject matter jurisdiction over a case. Id. “A case be: comes moot — and therefore no longer a Case or Controversy for purposes of Article III — when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Id. The Fifth Circuit has recognized that an
In arguing otherwise, Buck’s contends that, -under Already, LLC v. Nike, Inc., trademark infringement claims are moot where a valid covenant not to sue exists. In Already, a trademark infringement defendant brought .a declaratory judgment counterclaim, seeking a declaration that the trademark underlying, the plaintiff’s lawsuit was invalid. Already, 568 U.S. at 88-90, 133 S.Ct. 721. After, the defendant filed its counterclaim, the plaintiff nonsuited the infringement claim and issued a covenant not to sue. Id. at 88-89, 133 S.Ct. 721. The Court applied the voluntary cessation''doctrine,
The voluntary cessation doctrine does not apply here because Buck’s does not assert a- claim against Buc-ee’s. - There is therefore no relevant act that Buc-ee’s can voluntarily cease. Rather, Buck’s relies on the Agreement’s covenant not to sue as a defense to Buc-ee’s claims (the only claims in this case). Thus, 'even if Buc-ee’s current lawsuit violates the ' Covenant — an issue the Court does not address — the case is not moot. The Covenant merely provides a potential' defense to Buc-ee’s claims. There is still an actual controversy between'Buc-ee’s and Buck’s: whether or not Buck’s may be held liable for its alleged use of the BUCKY’S mark. Accordingly, the Bucks Defendants’' Rule 12(b)(1) motion to dismiss is denied as to’ Buc-ee’s claims against Buck’s.
B. The Bucks Defendants’ Section ilp0k(a) Motion to Transfer
Having,found .that the Agreement does not moot' this: case, the Court turns to whether Buc-ee’s lawsuit against the Bucks Defendants should be transferred to another court. Buck’s moves to transfer Buc-ee’s claims against-it- to the United States District Court for the District of Nebraska, pursuant to a forum-selection clause .in the Agreement
1. Transfer of Buc-ee’s Claims Against Buck’s Pursuant to the Forum-Selection Clause
Buck’s contends the Agreement contains a forum-selection clause, requiring the transfer of Buc-ee’s claims against it to the District of Nebraska. When evaluating a motion to transfer venue pursuant to a forum-selection clause, the Court must first determine whether a contractually valid forum-selection clause exists. See Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., — U.S. -, 134 S.Ct. 568, 581 n.5, 187 L.Ed.2d 487 (2013); see also Stinger v. Chase Bank, USA, NA, 265 Fed.Appx. 224, 226-27 (5th Cir. 2008) (per curiam). Second, if such a clause exists, the Court must determine whether the present case falls within the scope of the forum-selection clause. See Atl. Marine Constr. Co., 134 S.Ct. at 581 n.5; Stinger, 265 Fed.Appx. at 226-27.
The parties do not dispute the first inquiry: Buck’s and Buc-ee’s were both signatories to the Agreement, which contains a contractually valid forum-seleetion clause. Buc-ee’s, however, disputes the second inquiry, contending Buc-ee’s lawsuit against Buck’s does not fall within the scope of the forum-selection clause. The language of a forum-selection clause determines its scope. Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 Fed.Appx. 612, 616 (5th Cir. 2007) (per curiam). Forum-selection clauses that apply to all disputes that “relate to” or “are connected with” the contract are construed broadly, while clauses that apply to disputes “arising out of’ or over “the implementation and interpretation of’ the contract are construed narrowly. Blueskygreenland Envtl. Sols., LLC v. Rentar Envtl. Sols., Inc., No. 4:11-cv-01745, 2011 WL 6372842, at *4 (S.D. Tex. Dec. 20, 2011) (Ellison, J.). A forum-selection clause’s scope is not limited to “claims for breach of the contract that contains it.” MaxEn Capital, LLC v. Sutherland, No. H-08-3590, 2009 WL 936895, at *6 (S.D. Tex. Apr. 3, 2009) (Rosenthal, J.). Rather, the extent to which a forum-selection clause encompasses a claim “depends principally on how broadly the clauses are worded.” Id.
The Agreement’s forum-selection clause states, in pertinent part, “[Buck’s and Buc-ee’s] ... agree that ... any action brought by Buc-ee’s under this Agreement, shall be adjudicated in the state and federal courts in Douglas County, Nebraska.”
The phrase “brought ... under this Agreement” is akin to the wording of narrower forum-selection clauses, such as
All of Buc-ee’s causes of action against Buck’s are grounded in the allegation that “[Buck’s] recently has begun using the term ‘Bucky’s’ in connection with convenience stores and gas stations in Texas and this District.”
2. Transfer of Buc-ee’s Claims Against BSD and Richardson based on Convenience
Having found that a contractually valid forum-selection clause applies to Buc-ee’s claims against Buck’s
Under 28 U.S.C. § 1404(a); a court may transfer any civil action “[flor the convenience of the parties and witnesses, in the interest of justice ... to any other district where' it may have been, brought.” 28 U.S.C. § 1404(a). In determining. whether to transfer, the court must first determine “if the judicial district sought by the movant is one in which the case could have originally been brought.” Lincoln Imps., Ltd., Inc., v. Santa’s Best Craft, Ltd., No. H-07-2803, 2008 WL 1781020, at *1 (S.D. Tex. Apr. 16, 2008) (Miller, J.). This requires a showing that the transferee court (the United States District Court for the District of Nebraska) is a proper venue. Id.' If the court determines the transferee district is one in which the case could have originally been brought, “the court must determine by balancing certain public and private factors whether the convenience of the parties and witnesses, and the interest of justice require that the case be tried elsewhere.” Id. A party moving to transfer bears the burden of demonstrating to the Court that a transfer is warranted. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). With regards to the first step of the convenience transfer inquiry, the Bucks Defendants contend the District of Nebraska is.a proper venue.
First, venue is proper in “a judicial district in which .any defendant resides, if all defendants are residents of the State in which the district is located.’^ 28 U.S.C, § 1391(b)(1). A defendant business entity “shall be deemed to reside .,, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” Id. § 1391(c), A natural person “shall be deemed to reside in the judicial district in which that person is domiciled. Id. There is no evidence that BSD is subject to the District of Nebraska's personal jurisdiction with respect to Buc-ee’s case. In this regard, BSD and Richardson offer only the conclusory statement that BSD “has substantial contacts with Nebraska.”
Second, venue is also proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ....” Id. § 1391(b)(2), In addressing trademark venue under section 1391(b)(2), courts consider several factors, including whether the allegedly infringing activity took place in the district, “whether confusion to consumers is likely to occur in the district, whether sales'occur there, and whether the defendant actively targeted the district for advertising or other sales-related purposes.” Francesca’s Collections, Inc. v. Medina, No. H-11-307, 2011 WL 3925062, at *1 (S.D. Tex, Sept. 7, 2011) (Werlein, J.) (quoting 14D Charles Alan Wright et al„ Federal Practice and Procedure: Jurisdiction § 3806,1 at 216 (3d ed. 2007) (internal quotations omitted). Neither BSD nor' Richardson offers evidence that any of the allegedly infringing activity giving.rise to Buc-ee’s case occurred in the District of Nebraska. Rather, the allegations are that the Defendants sought to infringe on Buc-ee’s mark in the Southern District of Texas, that such allegedly infringing activity Would cause confusion to consumers in the Southern District of Texas, that any sales by the defendants’ allegedly infringing businesses would occur in the Southern District of Texas, and that the Southern District of Texas was specifically targeted for such purposes. Section 1391(b)(2) is therefore inapplicable. ‘
Lastly, “if there is no district in which an action may otherwise be brought as provided by [section 1391], any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action” is a proper venue. 28 U.S.C. § 1391(b)(3). However, it is undisputed that the Southern District of Texas is a proper venue as to BSD and Richardson because a substantial part of the events giving rise to Buc-ee’s claims against BSD and Richardson took part here. Section 1391(b)(3) is therefore inapplicable.
The Court .thus finds that BSD and Richardson have, failed to carry their burden of establishing this case could have otherwise been brought in the District of Nebraska. Accordingly, BSD and. Richardson’s motion to transfer for convenience is denied.
The Court has found that a contractually valid forum-selection clause applies to Buc-ee’s claims against Buck’s but not to Buc-ee’s claims against BSD and Richardson because those parties were not signatories to the Agreement. The Court has also found that the transfer of Buc-ee’s claims against BSD and Richardson is not otherwise appropriate because venue would not be proper as to BSD and Richardson in the District of Nebraska. Therefore, the Court must now address whether Buc-ee’s claims against Buck’s should be severed and transferred to the District of Nebraska, leaving Buc-ee’s claims against the remaining defendants pending in the Southern District of Texas.
When a forum-selection clause is not applicable to all parties in a lawsuit, a court may be required to sever those parties, and claims within the purview of the forum-selection clause “while the claims against the remaining defendants], for whom transfer would not be proper, are retained in the original court.” In re Rolls Royce Corp, 775 F.3d 671, 679 (5th Cir. 2014) “For cases where all parties signed a forum-selection contract, the analysis is easy: except in a truly exceptional case, the contract controls.” Id. When there are parties to the lawsuit that are not subject to the forum-selection clause, however, “[t]he analysis becomes more difficult.” Royal Smit Transformers BV v. HC BEA-LUNA M/V, No. 16-14647, 2017 WL 819243, at *3 (E.D. La. Mar. 2, 2017) (Affrick, J.). In such situations, a court has “essentially three options: (1) transfer the entire case; (2) sever and transfer only the parties bound by the forum-selection clause; and (3) maintain the entire lawsuit in this district notwithstanding the forum-selection clause.” Id. (citing Rolls Royce, 775 F.3d at 679).
The first option — to transfer the entire case to the District of Nebraska — is not available in this case because, as discussed swpra, Part III.B.2, venue in the District of Nebraska is not proper as to BSD and Richardson.
i. The Private Factors of the Parties
First, as signatories to the Agreement, the private interest factors of Buc-ee’s and Buck’s weigh in favor of severance and transfer as a matter of law. See Royal Smit, 2017 WL 819243, at *4. Regarding the second consideration, the Rolls Royce framework is generally applied to cases in which the non-signatories to a forum-selection clause oppose transfer,
Overall, although BSD, Richardson, and Tildón have connections with Texas, they have not provided evidence indicating that their private interests weigh in favor of maintaining Buc-ee’s entire lawsuit in this district. At this point in the analysis, therefore, the Court finds the first two Rolls Royce considerations weigh in favor of severing Buc-ee’s claims against Buck’s and transferring only them to the District of Nebraska. This gives Buc-ee’s and Buck’s the benefit of their bargain while also respecting Buc-ee’s choice of venue as to those defendants that had not previously entered into a forum-selection agreement with Buc-ee’s.
ii. Judicial Economy Considerations
Having found the first two considerations weigh in favor of severance and transfer, the Court proceeds to the final step. “[T]he Court can avoid severance and transfer ... when the preliminary considerations outlined above ‘are outweighed by the judicial economy considerations of having all claims determined in a single lawsuit.’ ” Id. (quoting Rolls Royce, 775 F.3d at 681). While the court’s interest in having all claims determined in a single lawsuit plays a “cardinal role” in the severance-and-transfer analysis, it is not the only relevant factor. Id. Other important'
The' Court initially notes that Buc-ee’s allegations are made collectively against all of the defendants. At this stage of the litigation, Buc-ee’s does not delineate what facts support which claims against each defendant. However, the failure of Buc-ee’s to plead specifically does not render the claims against each defendant so inextricably. intertwined as to make it unusually difficult for a court to evaluate the merits of the allegations against any-single defendant. See Ha Thi Le, 2017 WL 2915488, at* 1, *7.
Buc-ee’s otherwise makes three arguments-in regards to the application of the public interest factors to this case that would justify retaining the claims against Buck’s in the Southern District of Texas. First, Buc-ee’s .contends “the time to trial for trademark cases in [the Southern District of- Texas] is much faster than Nebraska .,, .”
C. The -Bucks Defendants’ Rule 12(b)(6) Motion to Dismiss ■
Because Buc-ee’s claims against BSD, Richardson, and Tildón will remain in this Court, the Bucks Defendants’ remaining contentions must be addressed. The Bucks Defendants seek dismissal of Buc-ee’s claims against BSD and Richardson under Rule 12(b)(6), contending Buc-ee’s fails to state a claim against those defendants. Federal Rule of Civil Procedure 8 requires a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed, R. Civ. P. 8(a)(2). The Court has reviewed
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendants Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson’s Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6), and, in the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (Document _No. 22) is GRANTED IN PART and DENIED IN PART, as follows:
• The, Bucks Defendants’ motion to dismiss pursuant-to Rule 12(b)(1) is DENIED.
• The Bucks Defendants’ motion to ; transfer.venue is GRANTED as to Buc-ee’s claims against Buck’s. All of Buc-ee’s claims against Buck’s are hereby SEVERED and TRANSFERRED to the United States District Court for the District of Nebraska, Omaha Division. ■ ;
• ( The Bucks Defendants’, motion to .transfer venue is DENIED as to Buc-ee’s claims against BSD and Richardson.
• The Bucks Defendants’ motion to ■ dismiss pursuant to Rule 12(b)(6) is DENIED WITHOUT PREJUDICE. The Court further ORDERS that Buc-ee’s shall file an amended complaint within twenty-one days from the date of this Order that is responsive to the issues raised by the Bucks Defendants’ Rule 12(b)(6) motion to dismiss and is compliant with Rule 8. Failure to file an amended complaint within twenty-one days will result in the dismissal of Buc-ee’s case against BSD and Richardson without further notice.
. The record is silent as to the employment or contractual relationship between Buck’s and BSD.
. Buc-ee’s Opposition to Defendants’ BSD Bright Site Development LLC, Buck’s, Inc., and Nathan Richardson’s Motions to Dismiss and Alternative Motion to Transfer Venue, Document No. 30, Exhibit 15 at 2 (Co-Existence and Settlement Agreement) [hereinafter Agreement ].
. Reply Brief in Support of Defendant Bucks, Inc„ BSD Bright Site Development LLC, and Nathan Richardson’s Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6) and in the Alternative Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), Document No. 34 at 11 (“[BSD] and [Richardson] were not signatories to the .,. Agreement.").
, " Buc-ee’s also disputes .the applicability of the Covenant to the pending lawsuit. However, in light of the Court's holding, the Court need not address the applicability of the Covenant.
. In certain instances, a defendant’s voluntary cessation of challenged conduct will moot a case. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 324-25 (5th Cir. 2009).
. Like their Rule 12(b)(1) motion, the Bucks Defendants' motion to transfer pursuant to the Agreement’s forum-selection clause is brought by Bucks, BSD, and Richardson, collectively. But as discussed, supra, Part III.’A.l, the parties do not dispute that only Bucks and Buc-ee's were signatories to the Agreement. The parties also do not dispute that Buc-ee's was not a signatory to, or otherwise bound by, any other agreement with BSD -or .Richardson. The Court therefore finds neither BSD nor Richardson may rely on the Agreement's forum-selection clause as a ground for transferring Buc-ee’s lawsuit against them and denies BSD and Richardson’s motion to transfer to the. extent it relies on the Agreement's forum-selection clause. See MaxEn Capital, LLC v. Sutherland, No. H-08-3590, 2009 WL 936895, at *4 (S.D. Tex, Apr. 3 2009) (Rosenthal, J.). The Court considers the Agreement’s forum-selection clause only as it pertains to Buc-ee’s claims against Buck’s.
.Defendant Tildón does not join in the Bucks Defendants’ motion to transfer and expressly opposes transfer.- Joint Discovety/Case Man
. Agreement, supra note 2, at 5 (emphasis added).
. Complaint, Document No. 1 at 5.
. Defendants Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson’s Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6), and, in the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), Document No. 22 at 5.
. Buc-ee’s Opposition to Defendants’ BSD Bright Site Development LLC, Buck’s, Inc., and Nathan Richardson’s Motions to Dismiss and Alternative Motion to Transfer Venue, Document No. 30 at 6-10.
. The paragraph containing the forum-selection clause reads in full:
This Agreement is made and entered into without either party entering the state of the other and shall in all respects be construed, interpreted, enforced, and governed under the Federal laws of trademarks and the common law of the United States of America, excluding its choice of law ■ rules.... The parties also agree that ... any action brought by Buc-ee’s under this Agreement shall be adjudicated in the state and federal courts located in Douglas County, Nebraska.
Agreement, supra note 3, at S. Buc-ee’s also contends the first sentence of this paragraph places a condition on the enforcement of the forum-selection clause contained in the second sentence. In other words, Buc-ee’s contends the forum-selection clause is conditioned on Buck's not entering Texas and Buc-ee’s not entering Nebraska. However there is no conditional language, such as "if”, "provided that”, "on the condition that”, linking the two sentences; nor does the plain language of the paragraph otherwise support Buc-ee’s asserted interpretation in any way.
. Supra Part III.B.l at 10-11.
. Supra Part III.B. at 9 n.7.
, In support of their motion to transfer venue for convenience, BSD and Richardson also consent to the jurisdiction of the District of Nebraska. Reply Brief in Support of Defendant Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson's Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6) and in the Alternative Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), Document No. 34 at 14, The Court declines to consider BSD and Richardson’s consent and waiver in the Court’s determination of whether this lawsuit could have originally been brought in the District of Nebraska. See Hoffman v. Blaski, 363 U.S. 335, 355, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960) (“[I]t is immaterial [to the transfer analysis] that the defendant subsequently (makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum).”).
. Defendants Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson’s Motion to Dismiss Pursuant to Rules 12(b)( 1), 12(b)(6), and, in. the Alternative, Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), Document Np. 22, Exhibit 2 at 3-4 (Declaration of Steven J. Buchanan) [hereinafter Buchanan Declaration ].
. Buc-ee’s Opposition to Defendants' BSD Bright Site Development LLC, Buck's, Inc., and Nathan Richardson's Motions to Dismiss and Alternative Motion to Transfer Venue, Document No. 30, Exhibit 8 at 7.
. In addition to establishing that venue is proper in the District of Nebraska, BSD and Richardson must also show that the District of Nebraska would have had personal jurisdiction over them. As discussed above, BSD and Richardson have failed to make this showing as to BSD. Nor have BSD and Richardson established that the District of Nebraska would have had personal jurisdiction over Richardson.1 The only allegations in this regard are that (1) Richardson is an employee of Buck’s and the sole member of BSD; and (2) “Richardson travels to Omaha on roughly a monthly basis to update Buck's on BSD’s business activities.” Buchanan Declaration, supra note- 16, - at 3-4. These allegations are insufficient- to establish the- State of Nebraska’s'specific-or general jurisdiction over Richardson. First, personal jurisdiction over an
. Nor has there been a showing that venue in the District of Nebraska is proper as to Defendant Tildón.
. In applying the Rolls Royce framework, the private factors a court should consider include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Volkswagen, 545 F.3d at 315.
. See Royal Smit, 2017 WL 819243, at *1-3; Ha Thi Le v. Lease Finance Group, LLC, No. 16-14867, 2017 WL 2915488, at *1-3, *7 (E.D. La. May 8, 2017) (Affick, J.); Hyundai Merchant Marine Co. v. Conglobal Industries, LLC, No. 3:15-CV-3576-G, 2016 WL 1613949, at *2, *4-5 (N.D. Tex. Apr. 21, 2016) (Fish, J.).
. Reply Brief in Support of Defendant Bucks, Inc., BSD Bright Site Development LLC, and Nathan Richardson's Motion to Dismiss Pursuant to Rules 12(b)(1), 12(b)(6) and in the Alternative Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), Document No. 34 at 14.
. Joint Discovery ¡Case Management Plan Under Rule 26(f) Federal Rules of Civil Procedure, Document No. 24 at 5.
. Buc-ee’s Opposition to Defendants’ BSD Bright Site Development LLC, Buck’s, Inc., and Nathan Richardson's Motions to Dismiss and Alternative Motion to Transfer Venue, Document No. 30 at 14 n.3.
, Buc-ee’s Opposition to Defendants' BSD Bright Site Development LLC, Buck’s, Inc., and Nathan Richardson's Motions to Dismiss and Alternative Motion to Transfer Venue, Document No. 30 at 1 4.
, Buc-ee’s also alleges that many third-party witnesses are in Texas. However, in light of the contractually valid forum-selection clause, the Court declines to consider the private interests of Buc-ee’s in litigating the suit in Texas. Atl. Marine Const. Co., 134 S.Ct. at 582.
. As the Court has ordered Buc-ee’s claims against Buck’s to be severed and transferred, the amended complaint filed-with this Court shall not reassert any claim against Buck’s.
Reference
- Full Case Name
- BUC-EE'S, LTD. v. BUCKS, INC. BSD Bright Site Development, LLC Nathan Richardson and Tildon Sun Development, LLC
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