United States District Court, E.D. California
HELLENIC PETROLEUM LLC, a Florida limited liability company, Plaintiff,
ELBOW RIVER MARKETING LTD., a Corporation of the Province of Alberta, Canada, and DOES 1 through 20, Defendants.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS. (ECF NO. 7)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
case concerns claims brought by Hellenic Petroleum LLC
(“Hellenic”) against Elbow River Marketing LTD
(“Elbow River”) and Does 1 through 20. This case
was filed on April 12, 2019. ECF No. 1. Defendant Elbow River
filed a Motion to Dismiss on May 9, 2019. ECF No. 7.
Plaintiff filed its Opposition on May 30, 2019, followed by a
reply from Defendants on June 6, 2019. ECF Nos. 8, 10. The
motion was taken under submission on the papers pursuant to
Local Rule 230(g). ECF No. 12.
is a company organized under the laws of Florida and with its
principle place of business in that state. ECF No. 1 ¶
1. Elbow River is a corporation of the province of Alberta,
Canada, with its principle place of business in that
province. ECF No. 1 ¶ 2. The parties contracted for
Hellenic to purchase propane from Elbow River for delivery by
rail to Modesto, California. ECF No. 7 at 3. Plaintiff brings
several causes of action arising from this contract.
moves to dismiss on the ground that a forum selection clause
was incorporated by reference into a contract between the
parties, which provided for the “exclusive jurisdiction
of the courts of the Province of Alberta” over any
disputes arising out of the contract. See, e.g., ECF
No. 7-5 at 2. Plaintiff opposes dismissal on numerous
grounds, including arguing that this provision was never
incorporated by reference. The Court finds neither party has
briefed the motion to dismissal according to the correct
principles of law. Therefore, Defendant's motion will be
DENIED without prejudice. In any subsequent
motion to dismiss, should one be filed and opposed, both
parties shall address the following issues in addition to
whatever other briefing is legal, reasonable, and necessary:
(1) Both parties cite and apply California contract law
throughout their briefs. However, here, the contract was for
a sale of goods between an American company and a Canadian
company. “Such international sales contracts are
ordinarily governed by a multilateral treaty, the United
Nations Convention on Contracts for the International Sale of
Goods (‘C.I.S.G.'), which applies to contracts of
sale of goods between parties whose places of business are in
different States . . . when the States are Contracting
States.” See Chateau des Charmes Wines Ltd. v.
Sabate USA Inc., 328 F.3d 528, 530 (9th Cir. 2003)
(quoting C.I.S.G., art. 1(1)(a), 15 U.S.C.App., 52 Fed.Reg.
6262 (March 2, 1987)) (internal quotation marks omitted).
Both the United States and Canada are “contracting
states” to the C.I.S.G. Id.; see also
United Nations Commission on International Trade Law
(“UNCITRAL”) C.I.S.G. status page,
(last visited July 9, 2019). Neither party addresses the
applicability of the C.I.S.G. to the present dispute. In any
renewed briefing on a motion to dismiss on the basis of the
forum selection clause, both parties shall address whether
the C.I.S.G. governs the contractual issues present, and, if
so, present their analyses accordingly. See Golden Valley
Grape Juice and Wine, LLC v. Centrisys Corp., 2009 WL
4828743, No. CV F 09-1424-LJO-GSA, at *10-11 (E.D. Cal. Dec.
9, 2009) (ordering supplemental briefing on applicability of
the C.I.S.G. to dispute over incorporation of forum selection
clause into international contract for the sale of goods).
The Court is not deciding at this time that the C.I.S.G.
governs this dispute, and if a party contends choice-of-law
or other analysis dictates a different controlling law other
than the C.I.S.G., the party shall apply that law in any
(2) Assuming without deciding that the forum selection clause
is enforceable in this case, the Defendants seek to enforce
that clause via a 12(b)(3) motion. The Supreme Court held in
Atlantic Marine Constr. Co. v. United States Dist. Court
for W. Dist. of Tex. that “the appropriate way to
enforce a forum-selection clause pointing to a state or
foreign forum is through the doctrine of forum non
conveniens.” 571 U.S. 49, 55 (2013); see also
Yei Sun v. Advanced China Healthcare, Inc., 901 F.3d
1081, 1087-88 (9th Cir. 2018) (applying Atlantic
Marine). Both parties appear to rely upon and apply
pre-Atlantic Marine law only. Neither party
addresses nor applies the doctrine of forum non
conveniens, and the Court cannot issue any order
regarding the forum selection clause on the basis of the
briefing before it. Both parties are ordered in any renewed
motion to dismiss briefing to present their analyses
according to the forum non conveniens framework
described in Atlantic Marine and its progeny.
Defendant's motion is DENIED ...