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SEECOMM NETWORK SERVICES CORP. v. COLT TELECOMMUNICATIONS

United States District Court, N.D. California


September 3, 2004.

SEECOMM NETWORK SERVICES CORPORATION, a Delaware Corporation, Plaintiff,
v.
COLT TELECOMMUNICATIONS, an unlimited English corporation; COLT TELECOM GROUP Plc, an unlimited English corporation; and DOES 1-100, Inclusive, Defendants.

The opinion of the court was delivered by: MARIA-ELENA JAMES, Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO FED. R. CIV. P. 12(b)(3).
ORDER FOR CLERK OF COURT TO CLOSE FILE.
I. INTRODUCTION
Before the Court are Defendants' COLT Telecommunications' ("COLT") and COLT Telecom Group Plc's ("COLT Telecom") (collectively, "Defendants")*fn1 Motion to Dismiss for Improper Venue and Motion to Dismiss for Failure to State Facts Upon Which Relief Can be Granted, filed April 8, 2004. After careful consideration of the parties' papers, relevant statutory and case law authority, and Good Cause appearing, the Court hereby GRANTS Defendants' Motion for Improper Venue, pursuant to Federal Rule of Civil Procedure 12(b)(3). II. BACKGROUND

A. Factual Background

  COLT Telecom is the parent of Defendant COLT. COLT is a company that provides telecommunications network services for call origination and termination. After protracted negotiations, SeeComm Network Services ("Plaintiff") and COLT signed the European Master Services Agreement (hereinafter "EMSA"), a one-year contract, on May 21, 2002. The EMSA has a Forum Selection Clause at Section 30, which states:

This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England always provided that COLT and/or its Affiliates may commence proceedings in any jurisdiction in which Customer and/or its Affiliate is incorporated, domiciled or resident.
  On or about August 16, 2002, after services under the EMSA had commenced, COLT notified Plaintiff that it wished to revise the payment schedule to remedy a typographical error in setting prices for calls to and from France. The EMSA listed a rate of ? 0.0214. COLT claims that the rate should have read ? 0.214. Plaintiff asserts that phone rates needed to remain unchanged for the one year term of the EMSA, because Plaintiff negotiated contracts with their customers based on EMSA pricing. As a result of Plaintiff's refusal to revise the price for calls made to and from France, COLT terminated all services under the EMSA on August 21, 2002.

  Plaintiff previously sued COLT for specific performance of the EMSA and damages in England Plaintiff lost its application for a preliminary injunction ordering COLT to perform under the EMSA. Simultaneously, COLT counter-claimed for the value of services it had rendered under the EMSA. Plaintiff was ordered to pay COLT's costs associated with the preliminary injunction application and to post security of costs for the future litigation. Plaintiff failed to pay those costs, essentially abandoning its claims, thus Plaintiff's case was dismissed. Unsuccessful in England, Plaintiff filed a complaint in Superior Court of California, for the County of Marin for damages stemming from breach of contract, fraud, and interference with prospective business advantage. Defendants subsequently filed the current motion. B. Procedural Background

  On January 27, 2004, Plaintiff filed a Complaint in Superior Court of the State of California in and for the County of Marin.

  On April 1, 2004, Defendants filed a Notice of Removal, pursuant to 28 U.S.C. § 1441(b), in the United States District Court for the Northern District of California.

  On April 8, 2004, Defendants filed Motions to Dismiss for Improper Venue and for Failure to State Facts Upon Which Relief Can be Granted (hereinafter "the Motion"), as well as a Memorandum of Points and Authorities, the Declaration of Richard Stewart Norman, the Declaration of Dov. M. Grunschlag, and a Rule 44.1 Notice (notice to court of foreign law applicable) in support thereof.

  On April 29, 2004, Plaintiff filed an Opposition to the Motion, as well as a Memorandum of Points and Authorities and the Declaration of Martin Foster in support thereof.

  On May 6, 2004, Defendants filed a Reply in Support of the Motion, as well as the Supplemental Declaration of Dov. M. Grunschlag in support thereof.

  On July 1, 2004, the Court held a hearing on the matter. After the hearing, the Court issued an Order for Further Briefing addressing how much Plaintiff was required to post in security to proceed with its claim in the English Court, and whether this financial inconvenience was foreseeable at the time the contract was entered.

  On July 7, 2004, Defendants filed Further Briefing with the Court.

  On July 8, 2004, Plaintiff filed Further Briefing with the Court.

  III. DISCUSSION

  Defendants argue in the Motion that Plaintiff filed its complaint in an improper venue. According to Defendants, the Forum-Selection Clause in the EMSA requires Plaintiff to file lawsuits against COLT in England

  Plaintiff claims that venue is proper in the Northern District of California because the Forum-Selection Clause is invalid for several reasons. First, Plaintiff argues that COLT committed a unilateral mistake, so the entire EMSA, including the Forum Selection Clause, is invalid. Second, Plaintiff argues that COLT fraudulently-induced Plaintiff into the contract, making Plaintiff rely on COLT's promised price levels, invalidating the EMSA and the Forum-Selection Clause. Next, Plaintiff argues that it could not afford to have its day in court in England, and therefore has the right to bring its claim in this Court.

  For these reasons, Plaintiff argues that the Forum-Selection Clause is invalid and this court is the proper venue for the case.

  A. Legal Standard

  Federal Rule of Civil Procedure 12(b)(3)

  Federal Rule of Civil Procedure 12(b)(3) provides that if a party brings an action in the wrong court, a defendant can move to dismiss for improper venue. Fed.R. Civ. P. 12(b)(3). "Where the proper venue is located in a foreign country, federal courts lack authority to transfer the action and therefore must dismiss it for improper venue." Chateau Des Charmes Wines Ltd. v. Sabate USA, Inc., 2002 U.S. Dist. LEXIS 4406,*3 (N.D. Cal. 2002) (reversed on other grounds) (citing Allen v. Lloyd's of London, 94 F.3d 923, 932 (4th Cir. 1996)).

  Parties may, by contract, designate a forum in which any litigation arising under the contract will take place. Litigation commenced elsewhere may be subject to dismissal for improper venue. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). Most forum-selection clauses enjoy strong presumptions of validity, Spradlin v. Lear Siegler Management. Services Co., 926 F.2d 865, 868 (9th Cir. 1991), and enforceability, Murphy v. Schneider National, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004). A number of courts, including the Ninth Circuit, hold that a forum-selection clause is grounds for a rule 12(b)(3) motion to dismiss for "improper venue." See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996); Albany Ins. Co. v. Almacanadora Somex, S.A., 5 F.3d 907, 909, fn.3 (5th Cir. 1993).

  "The enforceability of a forum-selection clause in international agreements is controlled by the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1(1972)." Argueta, 87 F.3d at 324-25. In Bremen, the Supreme Court held that "[forum-selection] clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." 407 U.S. at 10. A forum selection-clause is unreasonable if: (1) its incorporation into the contract was the result of "fraud, undue influence, or overweening bargaining power," Argueta, 87 F.3d at 325 (citing Bremen 407 U.S. at 12-13); (2) "enforcement would contravene a strong public policy of the forum in which suit is brought," Id. at 325 (citing Bremen, 407 U.S. at 15); or (3) the selected forum is "so gravely difficult and inconvenient" that the complaining party will "for all practical purposes be deprived of his day in court." Id. at 325 (citing Bremen, 407 U.S. at 18).

  The cost of litigation or the fact that a foreign forum poses inconvenience does not prevent enforcement of a forum-selection clause. Fireman's Fund Insurance Company v. M.V. DSR Atlantic, 131 F.3d. 1336, 1339 (9th Cir. 1997). Where inconvenience of the forum was foreseeable at the time of contracting, then "the party seeking to escape his contract" must show "that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Bremen, 407 U.S. at 18. Fireman's Fund refers to this required showing as a "heavy burden of proof." Id. at 1338.

  When a motion to enforce a forum-selection clause is made pursuant to Fed.R. Civ. P. 12(b)(3), the pleadings need not be accepted as true, and the court may consider facts outside of the pleadings. Murphy, 362 F.3d at 1137 (citing Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir. 1998) and Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996)).

  Murphy sets a new standard for evaluating a 12(b)(3) motion to dismiss pursuant to a forum-selection clause. If there are contested facts bearing on the enforceability of the forum-selection clause, with respect to the non-moving party's "meaningful day in court," the court is obligated to draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the nonmoving party. Id. at 1138. If the facts asserted by the non-moving party are sufficient to preclude enforcement of a forum-selection clause, the non-moving party survives a 12(b)(3) motion. Alternatively, if material facts are in dispute, the court may hold the motion in abeyance until a pre-trial evidentiary hearing resolves disputed facts. Id. at 1139. B. Legal Analysis

  1. Whether the Forum-Selection Clause is Presumptively Valid and Enforceable

  Defendants assert that a forum-selection clause is prima facie valid and enforceable. Defendants also argue that litigants wishing to challenge a forum-selection clause in the context of a motion to dismiss for improper venue face a "heavy burden of proof." Defendants argue that the Forum-Selection Clause in the EMSA is clear, and that "Plaintiff has never disputed the validity of the clause and its English counsel admitted in open court that the proper forum was England" (Defs' Mot. Dismiss Mem. Supp. at 6:8-9).

  Further, Defendants assert that Plaintiff confuses the merits of the case with the issue currently before the court: venue. Defendants contend that venue is determined on the basis of the action Plaintiff chooses to bring, not the defense. Defendants argue that defenses, including unilateral mistake, must be raised in the proper forum. The proper forum, Defendants assert, is England Defendants claim that the unilateral mistake defense "does not prevent the Forum-Selection Clause from taking effect." (Defs.' Reply at 2:11-12).

  Finally, Defendants contend that Plaintiff's `fraudulent inducement in entering the contract' argument "has no bearing on the enforceability of the contract's Forum-Selection Clause . . . even where a plaintiff seeks to disavow the contract containing a forum-selection clause . . . the clause will be given effect." (Id. at 2:18-19). Defendants argue that "[i]f the validity of the Forum-Selection Clause depended on whether the contract as a whole was valid, the Court would have to determine the merits of the dispute before deciding whether to enforce the clause, putting the cart before the horse." (Id. at 2:19-22).

  Plaintiff argues that Defendant COLT's unilateral mistake with respect to pricing of calls made to and from France invalidates the contract as a whole. Plaintiff also argues that "Defendants fraudulently-induced [Plaintiff] into entering the agreement . . . using a barrage of misrepresentations and flat out lies," and that this alleged fraud is grounds for invalidating the EMSA and the Forum-Selection Clause. (Pl.'s Opp'n Mem. at 7:13-14). Essentially, Plaintiff contends that because the contract as a whole is invalid, the Forum-Selection Clause is also invalid and unenforceable.

  The Court agrees with Defendants. Parties may, by contract, designate a forum in which litigation arising under the contract will take place. Spradlin, 926 F.2d at 868. However, before assessing the merits of the case, the Court must first determine whether venue is proper. To hold that the Forum-Selection Clause is invalid because the contract as a whole is invalid — as a result of a unilateral mistake or because of fraudulent inducement in entering the contract — requires the Court to assess the merits of the case. Using Plaintiff's analysis is clearly backwards. The question before the Court is the validity of the Forum-Selection Clause, not the validity of the contract as a whole. Because forum-selection clauses are prima facie valid, the Court concludes that the Forum Selection Clause at issue here is valid. See Bremen, 407 U.S. at 10.

  While the Court holds that the Forum-Selection Clause at issue here is presumptively valid, it may nonetheless be unenforceable if the Clause is shown to be unreasonable under the circumstances. Thus, the Court's analysis now turns to the enforceability of the Forum-Selection Clause.

  A valid forum-selection clause is "unreasonable," and thus unenforceable, if: 1) its incorporation into the contract was the result of "fraud, undue influence, or overweening bargaining power"; 2) "enforcement would contravene a strong public policy of the forum in which the suit is brought;" or 3) the selected forum is so "gravely difficult and inconvenient" that the complaining party will "for all practical purposes be deprived of his day in court." Argueta, 87 F.3d at 325 (citing Bremen). Each of these possible exceptions to enforceability of the Forum Selection Clause will be addressed below.

  2. Whether the Forum-Selection Clause is Unenforceable Because it is "Unreasonable" Under the Circumstances

  a. Whether the Forum-Selection Clause was Incorporated Into the Contract by Fraud, Undue Influence, or Overweening Bargaining Power

  Defendants argue that the Forum-Selection Clause is not unreasonable because it was not inserted into the EMSA as a result of fraud, undue influence, or overweening bargaining power. Defendants argue that Plaintiff "knew that it was contracting with an English company . . . and the Agreement, entitled European Master Services Agreement, had as its purpose the provision of telecommunication services in Europe." (Defs.' Mem. at 7:6-8). Defendants note that the Forum-Selection Clause "is not in small, fine print; rather, it is the same font and size as all other text and even appears on the signature page of the Agreement." (Id. at 7:9-10).

  Defendants claim that Plaintiff "is a company that does business in Europe and elsewhere," (Id. at 7:12-13), "with offices in New York, Los Angeles, and Manila . . . Its self-portrait as `weak' is belied by the facts." (Defs.' Reply at 5:6-7). Defendants point out that Plaintiff negotiated the EMSA over months and voluntarily signed it. Defendants state that far from being a weaker, easily-influenced party, Plaintiff "was in control of the negotiations, forcing COLT to repeatedly come back with more information or data." (Id. at 5:2-3). Defendants argue that "[t]here is simply no evidence that COLT had any greater bargaining power — much less "overweening" power — than did [P]laintiff." (Id. at 4:21-22).

  Further, Defendants argue that the Forum-Selection Clause is drafted in Plaintiff's favor. Defendants assert that the fact that the EMSA "permit[s] [P]laintiff to be sued in its home courts imposes no detriment to it. It merely ensures that the clause would not be interpreted so as to require [P]laintiff to be sued in England only. This, if anything, benefits [P]laintiff," and is "not evidence of overreaching, fraud, or any other impropriety." (Id. at 4:13-16).

  Plaintiff argues that the Forum-Selection Clause should not be enforced because the EMSA, and by extension, the Forum-Selection Clause, was the result of fraud, undue influence and overweening power. Plaintiff supports its contention of overweening power by stating that the Forum-Selection Clause favors the Defendants, in that Defendants may sue in "England, New Jersey, U.S.A. or California, U.S.A. . . . [Plaintiff]'s only option would be to bring suit in England" (Pl.'s Opp'n Mem. at 8:15-16). Therefore, Plaintiff asserts, the Forum-Selection Clause represents "an attempt by a large and powerful multinational company to exert its power over a small company with limited resources." (Id. at 8:9-10).

  Plaintiff argues that the Forum-Selection Clause is invalid under the Bremen fraud rule because Plaintiff was fraudulently-induced into signing the EMSA as a whole. Plaintiff supports its argument by referring to Defendants' "voluminous list of misrepresentations and lies" in getting Plaintiff to sign the EMSA. (Id. at 8:23-24). Plaintiff contends that its back and forth contract negotiations with Defendant COLT, which Plaintiff characterizes as COLT's "pattern of activities . . . leading up to execution of the EMSA," were "patently fraudulent." (Id. at 8:21-22).

  A valid forum selection clause may nonetheless be unenforceable "if its incorporation into the contract was the result of fraud, undue influence, or overweening bargaining power." Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996) (citing Bremen, 407 U.S. at 12-13)). Here, Plaintiff made no arguments, and produced no evidence, to support a finding that the Forum-Selection Clause was incorporated into the EMSA as a result of fraud. Plaintiff's arguments regarding fraudulent-enticement as to the signing of the EMSA have no place in the enforceability analysis for a forum-selection clause under Bremen. Plaintiff's assertion that back and forth negotiations are proof of fraud is a similar misapplication of the Bremen exception. Plaintiff's arguments go to the validity of the contract as a whole, the merits of the case, rather than the incorporation of the Clause into the EMSA as discussed in Bremen.

  Further, the Court finds that the Forum-Selection Clause does not favor Defendants, as Plaintiff contends. The Clause states:

This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England always provided that COLT and/or its Affiliates may commence proceedings in any jurisdiction in which Customer and/or its Affiliate is incorporated, domiciled or resident.
Thus, Plaintiff may be sued in any location where Plaintiff is domiciled, incorporated, resides, or in England — all forums which are convenient for Plaintiff, since Plaintiff is already be in those locations.

  Because the facts undermine Plaintiff's arguments that Defendants used undue influence and overweening bargaining power in inserting the Forum-Selection Clause into the EMSA, the Court finds that the Forum-Selection Clause is enforceable under the first Bremen exception to enforceability.

  b. Whether the Forum-Selection Clause Contravenes Public Policy

  Defendants argue that the Forum-Selection Clause is not unreasonable because enforcement of a forum-selection clause represents public policy. Defendants assert that its agreement with Plaintiff limiting litigation to England should not be disturbed by U.S. courts.

  Plaintiff argues that the Forum-Selection Clause should not be enforced under the Bremen public policy exception, because it is against public policy to deny weak parties their day in court. Plaintiff argues that public policy should especially allow Plaintiff its day in court because COLT, "a large corporate [giant]," engaged in a "defined pattern of fraud." (Pl.'s Opp'n Mem. at 9:26).

  Where enforcement of a forum-selection clause would contravene a strong public policy of the forum, enforcement is unreasonable. Bremen, 407 US at 15. In the Ninth Circuit, a forum-selection clause is grounds for a Fed.R. Civ. P. 12(b)(3) motion to dismiss for improper venue. Argueta, 87 F.3d at 324. Thus, there is strong public policy in favor of enforcing forum selection clauses in this forum. See generally Argueta, 87 F.3d at 325 (citing Bremen 407 U.S. at 15).

  As detailed above, Plaintiff failed to allege, or set forth facts, showing that the Forum-Selection Clause was incorporated into the EMSA by overweening bargaining power. Thus, the Court gives no credence to Plaintiff's argument that it is weak. Whether Plaintiff will be denied its day in court if the Forum-Selection Clause is enforced is addressed below.

  c. Whether the Forum-Selection Clause Essentially Deprives Plaintiff of a Meaningful Day in Court

  Defendants argue that England is not a "gravely difficult and inconvenient" forum that "for all practical purposes" deprives Plaintiff of its day in court. This is because, Defendants contend, Plaintiff "already had its day in court when it sought — and lost — a preliminary injunction in the English court." (Defs.' Mem. at 7:17-18). Defendants contend that Plaintiff alleged, without evidence, that it was required to post an over one million dollar bond to pursue its case in England Rather, Defendants argue that the English Court awarded COLT 35,000 British pounds for its costs in defending against Plaintiff's application for a preliminary injunction, and then ordered Plaintiff to post a security for COLT's costs for defending against Plaintiff's claims. Plaintiff failed to comply with the English Court's orders in either respect. Finally, Defendants contend, when the English Justice "gave [P]lainitiff permission to apply to vary or discharge" the security of costs order, Plaintiff "failed to appear at the hearing." (Defs.' Further Briefing at 3: ¶¶ 3-4). Basically, Defendants assert, Plaintiff "simply chose not to continue its action in England" (Defs.' Mem. at 7:18-19).

  Defendants also assert that the English legal requirements of posting pre-judgment bonds is similar to U.S. legal practice of requiring security for attorney fees, and that Plaintiff should have known the consequences of agreeing to litigate in England Defendants argue that the English law "of costs and security of costs has been in place for a very long time." (Defs.' Further Briefing at 1: ¶¶ 2-3).

  Plaintiff asserts that it was denied its day in court under the Bremen standard. Plaintiff argues that it could not afford to pay a required bond to continue its case. Initially arguing that it was required to post over $1,000,000 in the English court, Plaintiff in further briefing writes "[w]hile the exact amount cannot be ascertained from the English proceedings, [Plaintiff], at the very least would have had to pay . . . $300,968 . . . to proceed with its claim." (Pl.'s Further Briefing at 1: ¶ 2). Thereafter, Plaintiff asserts that, "[t]ragically, without the resources necessary to continue the proceedings, [Plaintiff] was forced to abandon its claims in that court." (Pl.'s Opp'n Mem. at 9:17-18).

  Plaintiff asserts that a security bond costing at least $300,000 was unforeseeable, and worked to prevent "smaller businesses" from "seeking redress for wrongs." (Pl.'s Further Briefing at 2: ¶ 4). Plaintiff argues that, had it "known that it would, in effect, have to pay a $300,000 filing fee to sue COLT, it never would have signed the contract in the first place." (Id).

  Plaintiff argues that it has provided compelling evidence of its inability to post the required security bond, and that COLT's actions precipitated Plaintiff's financial collapse. Plaintiff argues that it could only have pursued its claim in the English court had it been successful in its preliminary injunction application. For these reasons, Plaintiff argues that it was forced to abandon its claims and did not have its day in court.

  Before determining whether Plaintiff had its day in court, the Court must address whether the financial requirements of litigation in England were foreseeable at the time the EMSA was signed. In other words, the Court must determine whether the award of attorney's fees and the requirement to post security were foreseeable to Plaintiff. Where financial inconvenience of the required forum was foreseeable at the time of contracting, "the party seeking to escape his contract" must show "that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." Bremen, 407 U.S. at 18.

  Plaintiff is a multinational company with offices in the Philippines, England, New York, and Los Angeles. The Court finds it implausible that a multinational company doing business in England would not foresee, or know of, the financial inconveniences of litigating there. Additionally, Plaintiff made no claim and offered no proof that the financial requirements of the English courts are new since the parties entered into the EMSA. For this reason, Plaintiff's claim that the attorneys' fees and security costs required by the English courts were unforeseeable is unpersuasive. Where the cost of litigation in a foreign forum is foreseeable, such cost does not prevent enforcement of a forum selection clause. See Bremen, 407 U.S. at 18, and Fireman's Fund Insurance Company v. M.V. DSR Atlantic, 131 F.3d. 1336, 1339 (9th Cir. 1997).

  Because the Court finds the costs of litigating in England were foreseeable, Plaintiff bears the "heavy burden of proof" of showing that the Forum-Selection Clause is unenforceable because it is "unreasonable." Fireman's Fund, 131 F.3d at 1338. Plaintiff's heavy burden may be met if it proves that allowing enforcement of the Forum-Selection Clause will deny it of a meaningful day in court. Argueta, 87 F.3d at 325. Thus, the Court now turns its analysis to whether Plaintiff was denied a meaningful day in court.

  The 9th Circuit held that a plaintiff was denied his meaningful day in court because he was financially incapable of even traveling to the forum required by the forum-selection clause in his employment contract. Murphy v. Schneider, 362 F.3d 1133. The present case is distinguishable from Murphy because Plaintiff filed suit in an English court against COLT, as required by the Forum-Selection Clause, and made a request for a preliminary injunction requiring Defendant COLT to perform under the EMSA. Plaintiff lost its application for a preliminary injunction and was ordered by the English Court to pay Defendant COLT's costs in defending against the application.

  After denying its application, the English court stated that it believed Plaintiff's claim would lose. For this reason, in order to continue its claim, Plaintiff was required to post costs to cover Defendant COLT's possible costs in future litigation.

  When Plaintiff was offered an opportunity to appear in the English court to vary or discharge the costs mandated by the court, Plaintiff failed to appear at the hearing. Nor did Plaintiff pay the costs mandated by the English Court, thus, Plaintiff abandoned its case. Thereafter, the English Court entered a judgment in favor of Defendant COLT and dismissed Plaintiff's case.

  Even taking Plaintiff's allegations regarding the required security of costs as true, the Court cannot conclude that Plaintiff was denied its day in court. Assuming Plaintiff was financially unable to pay the required costs and security, Plaintiff's failure to appear at the hearing in England to vary or discharge the costs was an abandonment of its case. Such abandonment cannot be interpreted as the denial of a meaningful day in court. Therefore, the Court finds that Plaintiff was not denied a meaningful day in court in England, and the Forum-Selection Clause is therefore not "unreasonable" under the circumstances. IV. CONCLUSION

  The Court finds that the Forum-Selection Clause is valid and that none of the Bremen exceptions to enforceability apply. Therefore, the Forum-Selection Clause is enforceable, making venue improper in the Northern District of California. For these reasons, Defendants' Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3) is hereby GRANTED.

  As such, the Court declines to address Defendants' Motion for Failure to State Facts Upon Which Relief Can be Granted.

  The Clerk of the Court is hereby ORDERED to close the file.

  IT IS SO ORDERED.


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