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Vi Medrx, LLC v. Hurley Consulting Associates

January 3, 2012

VI MEDRX, LLC, PLAINTIFF,
v.
HURLEY CONSULTING ASSOCIATES, LTD., DEFENDANT.



ORDER

This case is before the Court on the following:

1) Defendant's Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, Improper Venue and Motion to Compel Arbitration and Stay Litigation (Doc. No. 4), filed on October 27, 2011; and

2) Plaintiff VIMedRx, LLC's ("Plaintiff's") Response in Opposition to Defendant's Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, Improper Venue and Motion to Compel Arbitration and Stay Litigation (Doc. No. 8), filed on November 14, 2011.

BACKGROUND

This dispute arises from a contract for professional services. (Doc. No. 2, ¶¶ 6-17.) Plaintiff is a Florida based company that was formed to design, develop and commercialize sterile talc. (Id. at ¶ 6.) Plaintiff considered retaining Hurley Consulting Associates, Ltd. ("Defendant"), a consulting company that serves the health sciences industry, to assist it with a "New Drug Application" ("NDA"). (Id. at ¶¶ 7-8.) The parties entered into negotiations, in which they set forth the prospective scope of services, project description, payment terms, and other terms and conditions of their proposed relationship under a Consulting Agreement and Amendment to the Consulting Agreement (collectively, the "Proposed Agreement"). (Id. at ¶ 8; id. at pp. 6-29.) The Proposed Agreement required Plaintiff to pay Defendant a retainer in the amount of $150,000 upon execution. (Id.)

On September 7, 2011, a representative of Plaintiff e-mailed a copy of the executed Proposed Agreement to Defendant. (Id. at ¶¶ 10, 11.)On September 8, 2011, Gary Willetts, Vice President of Plaintiff, contacted Dr. Margaret E. Hurley, President and Chief Executive Office of Defendant, and advised her that Defendant should not perform any work or serves contemplated under the Proposed Agreement or related to the NDA. (Id. at ¶ 12.) Soon thereafter, Defendant delivered a status report and invoice in the amount of $23,831.50 to Plaintiff for work it allegedly performed under the Proposed Agreement. (Id. at ¶¶ 15-16.) Defendant also demanded that Plaintiff pay the $150,000 retainer. (Id. at ¶ 17.)

Plaintiff thereafter initiated this lawsuit in the Circuit Court of the Fourth Judicial Circuit in and for St. Johns County, Florida, for a declaration of the parties' duties and obligations under the Proposed Agreement. (Doc. No. 1.) Defendant removed the action to this Court on October 20, 2011. (See id.) Plaintiff moved to remand the action to state court, (Doc. No. 9), which this Court denied on December 12, 2011. (Doc. No. 15.) Defendant filed its Motion to Dismiss on October 27, 2011. (Doc. No. 4.)

PARTIES' ARGUMENTS

In its Motion to Dismiss (Doc. No. 4) Defendant moves this Court to dismiss the Complaint (Doc. No. 2) for lack of personal jurisdiction, or in the alternative, improper venue. First, Defendant contends that Plaintiff's claims must be dismissed because Defendant lacks the required contacts with Florida for this Court to properly exercise personal jurisdiction over it. (Doc. No. 4, p. 4.) Alternatively, it argues that the Court should dismiss this action pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(3) for improper venue due to a valid arbitration clause, which designates New York, New York as the appropriate forum for "all claims or controversies" that arise from the parties' commercial contract.

Plaintiff filed its Response in Opposition to Defendant's Motion to Dismiss ("Response") (Doc. No. 8) on November 14, 2011. First, Plaintiff maintains that Defendant "consented to this Court's jurisdiction and venue when it sought affirmative relief and moved the Court to compel arbitration of this dispute in New York." (Doc. No. 8, p. 4.) Next, it asserts that this Court does not have subject matter jurisdiction over this dispute.*fn1

(Id. at pp. 4-6.) Plaintiff submits, however, that if this Court determined it has subject matter jurisdiction over the dispute, it should adhere to Section Four of the Federal Arbitration Act ("FAA"), which would require the arbitration to take place in the Middle District of Florida. (Id. at p. 9 (citing Section 4 of the FAA).)*fn2

DISCUSSION

Arbitration provisions are "a species" of forum selection clauses. Stolt-Nielsen S.A., et al. v. AnimalFeeds Intel Corp., 130 S.Ct. 1758, 1783 (2010); See Maxwell v. N.l. (Bahamas), Ltd. No. 11-12257, 2011 WL 4928737, at *1 n.1 (11th Cir. Oct. 18, 2011) ("[A]rbitration agreements are a type of forum selection clause . . . ."); Cunningham v. Fleetwood Homes of Ga., 253 F.3d 611, 617 (11th Cir. 2001) ("Agreements to arbitrate are essentially forum-selection clauses . . . ."). Accordingly, in the Eleventh Circuit, a motion pursuant to Rule 12(b)(3) is the proper vehicle to request dismissal of a complaint on the basis of a forum selection clause. Slater v. Energy Servs. Group Intel, Inc., 634 F.3d 1326, 1333 (11th Cir. 2011)("[W]e conclude that 28 U.S.C. § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum selection-clause, while Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on a forum selection clause.")*fn3

Two clauses in the Proposed Agreement are relevant to this Court's analysis under Rule 12(b)(3).*fn4 First, the ...


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