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Ingenieria Alimentaria del Matatipac, S.A. de C.V. v. Garden Products

May 31, 2007

INGENIERIA ALIMENTARIA DEL MATATIPAC, S.A. DE C.V., PLAINTIFF,
v.
GARDEN PRODUCTS, INC., A CALIFORNIA CORPORATION, AND DOES 1 TO 10, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE OCEAN

Pending before the Court is Defendant Ocean Garden Products, Inc.'s motion to dismiss for improper venue. (Doc. # 5).

PROCEDURAL BACKGROUND

On October 30, 2006, Plaintiff Ingenieria Alimentaria del Matatipac, S.A. de C.V. filed the Complaint in this matter, and asserted state law claims for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) open book account, (4) account stated, (5) statutory unfair competition, (6) intentional misrepresentation, (7) negligent misrepresentation, (8) interference with existing contractual relation, and (9) intentional interference with prospective economic advantage against Defendant Ocean Garden Products, Inc. (Doc. # 1). On November 21, 2006, the parties filed a joint motion to extend the time for Defendant to answer, (Doc. # 3), and on November 28, 2006, the Court granted the joint motion. (Doc. # 4). On December 22, 2006, Defendant moved to dismiss the Complaint for improper venue pursuant to FED. R. CIV. P. 12(b)(3). (Doc. # 5).

FACTS

Plaintiff Ingenieria Alimentaria del Matatipac, S.A. de C.V. is a Mexican corporation formed under the laws of and domiciled in Tepic, Nayarit, Mexico. Declaration of David R. Clark, Ex. A at 4. Plaintiff operates an aquicultural farm in San Blas, Mexico where Plaintiff breeds shrimp. Clark Decl., Ex. A. at 4-5. Defendant Ocean Garden Products, Inc. is an American corporation formed under the laws of the State of California. Declaration of Frank J. Barrancotto, ¶ 2. Defendant "purchases shrimp from many Mexican shrimp producers for resale in the United States and other countries." Barrancotto Decl., ¶ 2.

On approximately March 31, 2004, and July 13, 2005, Plaintiff and Defendant entered into agreements (the 2004 Agreement & the 2005 Agreement) which created relationships between the parties for the 2004/2005 and 2005/2006 shrimp seasons. Barrancotto Decl., ¶¶ 3-4. Pursuant to both the 2004 and 2005 Agreements, Plaintiff agreed to sell approximately 1,000,000 pounds of shrimp to Defendant, and Defendant agreed to buy approximately 1,000,000 pounds of shrimp from Plaintiff. Clark. Decl., Exs. A, B. The 2004 Agreement included a forum selection clause, which provided:

SIXTEENTH. Applicable Legislation and Jurisdiction. For all matters concerning the construction and performance of this agreement, the parties expressly submit to the Laws of Mexico and the Jurisdiction of the Federal Courts of Mexico, waiving the protection of any other domicile, whether present or future, to which they might be entitled pursuant to Mexican or United States law.

Clark Decl., Ex. A at 11. The 2005 Agreement included a forum selection clause, which provided:

TWENTY SECOND. Applicable Law and Jurisdiction. For all the effects and purposes of interpreting and complying with this contract, the parties shall abide by the Laws that correspond to this matter in the United Mexican States or in the United States of America at the discretion of the company and to the jurisdiction of the Tribunals of MAZATLAN, SINALOA, waiving the jurisdiction of any other present or future domicile that could correspond to them according to the these Laws.

Clark Decl., Ex. B at 32. Defendant presented both the 2004 and 2005 Agreements to Plaintiff on a "take it or leave it basis," and Plaintiff did not have an opportunity to negotiate the terms of either Agreement. Declaration of Marco Valdes, ¶¶ 3-4.

Defendant refused to receive all the shrimp it contracted to receive under the 2004 and 2005 Agreements. Valdes Decl., ¶ 5. Defendant also refused to pay for some of the shrimp it received pursuant to the 2004 and 2005 Agreements. Valdes Decl., ¶ 5. Defendant contends that the shrimp it rejected did meet contractual quality standards. Arturo Carlos Declaration, ¶ 4. Plaintiff contends that "[a]ll of the shrimp harvested and procured for [Defendant] pursuant to the Contracts was of excellent quality." Valdes Decl., ¶ 9.

STANDARD OF REVIEW

A motion to dismiss premised on the enforcement of a contractual forum selection clause is properly brought as a motion to dismiss for improper ...


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