Italian Forum Selection Clause Contained In Order Confirmation Form Upheld

In Allied Dynamics Corp. v. Kennametal, Inc., 12-CV-5904 (JFB)(AKT) (E.D.N.Y. Aug. 5, 2014), Judge Joseph F. Bianco granted defendants’ motion to dismiss plaintiff’s claims for breach of contract and tort based on improper venue. Plaintiff, a New York manufacturer of turbine parts, had ordered blade parts from defendant, an Italian company, for gas turbine assembly. Plaintiff alleged that defendant had failed to provide goods of the quality and quantity promised.
When plaintiff filed suit in New York, defendants asserted that the parties had chosen Milan, Italy, as the exclusive forum for disputes. This forced the court to determine, first, which documents constituted the parties’ agreement, and, second, whether that agreement included the forum selection clause. The court resolved these questions by applying the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). After an evidentiary hearing, the court held that plaintiff’s initial purchase orders constituted offers but defendants’ order confirmations—which included the forum selection clause in dispute, among other general terms and conditions—constituted rejections and counteroffers that plaintiff was deemed to have accepted under the CISG when it failed to object within fifteen days of receipt of each confirmation.
But that did not end the inquiry. Even valid forum selection clauses can be overcome if the partyresisting enforcement can show that enforcement would be “unreasonable or unjust, or that the clause is invalid for reasons such as fraud or overreaching.” Slip op. 15 (internal quotation and citation omitted). The court found no evidence of fraud or overreaching and concluded that the Italian forum would not deprive plaintiff of a remedy. As a result, Judge Bianco dismissed the case in favor of the Italian courts.

Pro Se Plaintiff Should Have Been Allowed To Amend Complaint

On August 19, 2014, the Second Circuit issued a decision in Garay v. Novartis Pharmaceuticals Corp., 13-3762-CV, reversing a denial by the EDNY of leave to amend a complaint that had been dismissed on the pleadings.

In Garay, the EDNY dismissed with prejudice a pro se plaintiff’s age discrimination and retaliation claims. The Second Circuit affirmed the dismissal, but reversed the EDNY’s refusal to allow the plaintiff to file an amended complaint, explaining:

While the District Court’s ruling was otherwise sound, it erred in denying [the plaintiff] leave to amend her complaint on futility grounds. As a general rule, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that she has a valid claim. We have thus held that a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated. An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).

(Internal quotations and citations omitted). After reviewing the plaintiff’s opposition to the defendant’s motion for judgment on the pleadings, the Second Circuit concluded that she should have been allowed to file an amended complaint because such an amendment might not have been futile in light of her allegations regarding retaliation.