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Sensify (US) Inc. v. Intelligent Telematics North America, Inc.

United States District Court, S.D. Florida

April 28, 2017

SENSIFY (US) INC., a Connecticut corporation, Plaintiff,
v.
INTELLIGENT TELEMATICS NORTH AMERICA, INC., a Delaware corporation, Defendant.

          ORDER ON AMENDED MOTION TO DISMISS

          MARCIA G. COOKE, United States District Judge

         This is a trade-secret misappropriation action involving a written agreement between Defendant Intelligent Telematics North America, Inc. (“ITNA”), its parent company, and its sister company on one side, and Plaintiff Sensify (US) Inc.'s (“Sensify”) parent company on the other side (together, the “Signatories”). I have jurisdiction under 28 U.S.C. § 1332.

         Pending is ITNA's Amended Motion to Dismiss (ECF No. 11). I have reviewed the Motion, the parties' supporting and opposing briefs, the record, and the relevant legal authorities. For the reasons that follow, I grant the Motion.

         BACKGROUND

         On February 22, 2016, the Signatories entered into an Intelligent Telematics Reseller Agreement (“Agreement”). (ECF No. 11-1). The Agreement contains two provisions pertinent to ITNA's Motion. First, Section 10.g, the “Choice of Law and Forum” clause, provides:

This Agreement will be governed by and construed under the laws of England and Wales, without reference to conflict of laws principles. The parties each consent to exclusive jurisdiction and venue in the [United Kingdom] with respect to any dispute arising out of or relating to this Agreement. The Parties waive all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

(ECF No. 11-1 ¶ 10.g) (emphasis added). Second, Section 10.h, the “Survivability” clause, provides, “Sections 1, 4.g, 5, 6, 7, 8 and 9 will survive the expiration or termination of this Agreement.” (Id. ¶ 10.h).

         On September 3, 2016, ITNA terminated the Agreement. (ECF No. 14-1 ¶ 5 & Ex. A). Roughly three weeks later, Sensify filed its Complaint in the United States District Court for the Southern District of Florida. (ECF No. 1). In it, Sensify alleges that “[o]n February 22, 2016, in furtherance of their business dealings, Sensify was required to disclose to ITNA a list of proprietary and protected Sensify customers and accounts.” (Id. ¶ 15). Although the Sensify does not specifically mention the Agreement, it asserts that “disclosure of the customer identities at issue was covered by strict confidentiality provisions.” (Id. at 16). Sensify claims that ITNA breached those confidentiality provisions by “intentionally, willfully, and improperly us[ing] Sensify's confidential trade secret information to procure . . . business for ITNA, ” thus violating Florida's Uniform Trade Secrets Act, Fla. Stat. ch. 688 (“FUTSA”). (Id. ¶ 20).

         DISCUSSION

         ITNA argues, inter alia, I should dismiss Sensify's Complaint because the Agreement's forum-selection clause requires the parties to resolve disputes such as this one in the United Kingdom, as was their intent when they negotiated the contract. See Liverpool and London S.S. Prot. And Indem. Ass'n v. Islas Galapagos Turismo Y Vapores, C.A., 1997 WL 900841, at *1 (S.D. Fla. 1997) (“The scope and enforcement of a forum selection clause is a matter of contract interpretation and the intent of the parties should govern the extent to which the non-selected court may exercise its jurisdiction.”). Sensify counters that: (1) enforcement of the forum-selection clause would violate public policy; (2) the forum-selection clause did not survive ITNA's termination of the Agreement; and (3) even if the clause did survive, it does not apply to Sensify's FUTSA claim.

         First, mandatory forum-selection clauses, such as the one at issue here, are “presumptively valid and enforceable” absent a “strong showing that enforcement would be unfair or unreasonable under the circumstances.” Krenkel v. Kerzner Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (internal quotation marks and citation omitted). That said, “[a] forum-selection clause will be invalidated when, ” inter alia, “enforcement of the clause would contravene public policy.” Id. Sensify argues enforcement of the clause in this case would undermine Florida's interest “in proscribing acceptable conduct relative to trade secrets for companies that avail themselves of the privilege of conducting business within this State.” (ECF No. 27 at 3). I am not convinced that the clause is so “obnoxious” to Florida public policy that I should not enforce it. Cf. Holderness v. Hamilton Fire Ins. Co. of New York, 54 F.Supp. 145, 147 (S.D. Fla. 1944) (courts need not enforce “a contract right [that is] is obnoxious to the public policy of a state”). As discussed further below, courts routinely apply forum-selection clauses to tort actions under circumstances similar to those present here.[1]

         With respect to Sensify's second argument, courts consistently have rejected the notion that termination of an agreement necessarily extinguishes its forum-selection clause. See TriState HVAC Equipment, LLP v. Big Belly Solar, Inc., 752 F.Supp.2d 517, 535 (E.D. Pa. 2010); Versar, Inc. v. Ball, 2001 WL 818354, at *2 (E.D. Pa. 2001); Texas Source Group, Inc. v. CCH, Inc., 967 F.Supp. 234, 238 (S.D. Tex. 1997); Allied Sound, Inc. v. Dukane Corp., 934 F.Supp. 272, 275 (M.D. Tenn. 1996); Young Women's Christian Ass'n of the U.S. v. HMC Entm't, Inc., 1992 WL 279361, at *4 (S.D.N.Y. 1992); Advent Elecs., Inc. v. Samsung Semiconductor, Inc., 709 F.Supp. 843, 846 (N.D. Ill. 1989); see also 13 Corbin on Contracts § 67.2, at 12 (rev. ed. 2003) (“Although termination and cancellation of an agreement extinguish future obligations of both parties to the agreement, neither termination nor cancellation affect those terms that relate to the settlement of disputes or choice of law or forum selection clauses.”). “Unless otherwise expressed, a choice of forum clause does not expire upon termination of the contract from which it derives. . . . [T]o read the contract so as to disregard the forum-selection clause for actions brought following termination would be to distort its usual, common sense meaning and applicability.” Versar, 2001 WL 818354, at *2 (emphasis added).

         Here, there is nothing in the Agreement that expressly neuters the forum-selection clause upon termination. Sensify contends, however, that because the Agreement contains a paragraph expressly providing for the survival of certain enumerated provisions after termination, the exclusion of the forum-selection clause from that “survival” clause implies that the forum-selection clause did not survive the Agreement's termination. See, e.g., Exprezit Convenience Stores, LLC v. Transaction Tracking Techs., 2005 WL 2704891 (N.D. Fla. 2005) (contract may indicate by implication that termination should result in invalidation of forum-selection clause). To be sure, the forum-selection clause is not among the provisions set out in the Agreement's “survival” clause. But courts repeatedly have upheld the applicability of forum-selection clauses even where the contract expressly provides for the survival of certain enumerated provisions but not the forum-selection clause.[2] See TriState, 752 F.Supp.2d at 535; Versar, 2001 WL 818354, at *2; Texas Source Group, 967 F.Supp. at 238; Allied Sound, 934 F.Supp. at 275; Advent, 709 F.Supp. at 846.

         In particular, I am persuaded by the court's analysis in TriState as to why the forum-selection clause in that ...


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