The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS Doc. No. 11
Plaintiff Centaur Corporation ("Centaur") filed this diversity action against Defendant ON Semiconductor Components Industries, LLC ("ON Semiconductor") alleging (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) quantum meruit, (4) unjust enrichment, (5) accounting, and (6) violation of Arizona Statute Title 44, Chapter 11, Article 15, 44-1798.02. (Doc. No. 1). ON Semiconductor moves to dismiss the complaint on grounds that (1) Centaur has failed to comply with the dispute resolution procedure agreed to in the parties' contract, and (2) for improper venue due to a forum selection clause. (Doc. No. 11). The court finds this matter appropriate for decision without oral argument. See CivLR 7.1(d)(1). For the following reasons, the court hereby GRANTS Defendant's motion to dismiss.
In January 2008, Centaur entered into a sales representative agreement with ON Semiconductor to be the exclusive sales representative for a territory including much of the southwestern United States. (Doc. No. 10, Second Amended Complaint, hereinafter "SAC," ¶ 6). ON Semiconductor terminated the sales representative agreement effective January 31, 2009. (SAC ¶ 8).
The sales representative agreement required ON Semiconductor to pay any unpaid commissions to Centaur upon termination. (SAC ¶ 9). In March 2009, ON Semiconductor paid $111,992.28 to Centaur in outstanding commissions. In April 2009, ON Semiconductor paid an additional $2,839.45 in commissions. (SAC ¶ 14). Nonetheless, Centaur sought further information, particularly ON Semiconductor's sales data, to verify whether the paid commissions were accurate. (SAC ¶ 11). ON Semiconductor's alleged refusal to provide that information precipitated the current dispute.
The sales representative agreement binding the parties provides the following dispute resolution procedure: 9.20 Alternate Dispute Resolution: Except for claims or controversies involving intellectual property, which are exempt from this paragraph, ON Semiconductor and Representative will attempt to settle any claim or controversy arising out of the Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation.
9.20.1 Resolution Through Mediation: If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be chosen by ON Semiconductor and Representative within forty-five (45) days after written notice by either ON Semiconductor or Representative demanding mediation. Neither ON Semiconductor nor Representative may unreasonably withhold consent to the selection of a mediator, and ON Semiconductor and Representative will share the costs of the mediation equally. By mutual agreement, however, ON Semiconductor and Representative may postpone mediation until ON Semiconductor and Representative have completed some specified but limited discovery about the dispute. ON Semiconductor and Representative may also agree to replace mediation with some other form of alternative dispute resolution (ADR), such as neutral fact-finding or a minitrial.
9.20.2 Unsuccessful Resolution: Any dispute which ON Semiconductor and Representative cannot resolve through negotiation, mediation or other form of ADR within six (6) months of the date of the initial demand for it by either ON Semiconductor or Representative may then be submitted to the courts within Arizona for resolution. The use of any ADR procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. Nothing in this section will prevent either ON Semiconductor or Representative from resorting to judicial proceedings if (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful or (b) interim relief from a court is necessary to prevent serious and irreparable injury to a party or to others.
On August 5, 2009, an attorney for Centaur sent a letter to ON Semiconductor stating, In accordance with Section 9.20.1 of the Sales Representative Agreement, Centaur is willing to submit this dispute over unpaid commissions to a mutually acceptable mediator. Please provide us with the names of three mediators that are acceptable to you for resolution of this dispute within fifteen days of receipt of this letter. (Doc. No. 11, Ex. 3 at 26). Nonetheless, no mediation took place, and Centaur filed its complaint in this case on September 18, 2009. (See Doc. No. 1).
A motion to dismiss based on a forum selection clause is treated as a motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Argueta v. Banco Mexican, S.A., 87 F.3d 320, 324 (9th Cir. 1996). Federal law governs the validity of a forum selection clause. Id. (citing Manett-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir. 1988)).
The court treats the motion to dismiss for failure to mediate as a motion to dismiss for failure to state upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In testing the complaint's legal adequacy, the court may consider material properly submitted as part of the complaint, including exhibits attached thereto, or material subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Furthermore, under the "incorporation by reference" doctrine, the court may consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically ...