The opinion of the court was delivered by: Chief Judge Curtis L. Collier
The matter before the Court arises from the sale of an aircraft, which plaintiff Hasler Aviation L.L.C. ("Plaintiff") alleges was defective, notwithstanding representations to the contrary made by the various defendants (Doc. No. 15). This Court has jurisdiction because the amount in controversy exceeds $75,000 and the parties are diverse. 28 U.S.C. § 1332(a).
Aircenter, Inc. ("Aircenter") and Gary Gadberry ("Gadberry" and collectively, "Defendants") filed a motion to dismiss with supporting memorandum (Doc. Nos. 7 & 8) on October 10, 2006.*fn1 Defendants argue a forum selection clause in the Purchase Order between Plaintiff and Aircenter mandates any litigation be brought in Marion County, Tennessee. Since there is no federal court in Marion County, the action must be filed in state court (Doc. No. 7, p. 1). Therefore, Defendants argue this action must be dismissed for improper venue. In an untimely response, Plaintiff notes, of all the defendants, only Aircenter is a party to this agreement (Doc. No. 19, p. 3). Plaintiff contends its dispute with Aircenter is broader than the agreement and includes tort claims incidental to the agreement (id.). Thus, venue would be proper in this Court.
For the reasons set forth below, the motion to dismiss (Doc. No. 7) is GRANTED.
Plaintiff is a Missouri limited liability company. Aircenter is incorporated in Tennessee, and Gadberry is Aircenter's president (Doc. No. 15, ¶¶ 1, 3). In April 2004, Plaintiff purchased a 1962 Aero Commander Model 500A (the "aircraft") from Aircenter. The net purchase price of $237,240 included upgrades quoted by Aircenter, with work performed by Gann Aviation, Inc. ("Gann") (id. ¶¶ 12-15, 18-20, 27, 31). Aircenter guaranteed the aircraft would be newly inspected and comply with all applicable Federal Aviation Administration ("FAA") Airworthiness Directives. This work was performed by Arnold Blankenship ("Blankenship") (id. ¶ 21). Aircenter prepared an Aircraft Purchase Order (the "Purchase Order"), which was executed by Gadberry as Aircenter's President and by J. Hasler as Plaintiff's Operating Manager (Doc. Nos. 8-2 & 15-5, p. 1).*fn2
After accepting delivery of the aircraft in December 2004, Plaintiff noticed multiple defects in the aircraft; in fact, according to Plaintiff's mechanic, the aircraft was not airworthy (id. ¶¶ 29-31). Gadberry admitted to some of these defects (Doc. Nos. 15-6 & 15-7). In the Amended Complaint, Plaintiff lists a large number of defects and non-conformities (Doc. No. 15, ¶¶ 30, 37- 47). However, as a result of these defects, Plaintiff suffered neither personal injury nor property damage -- Plaintiff's injury is that Plaintiff now owns an expensive aircraft which is unsafe to fly (id. ¶¶ 47-48).
Plaintiff sued Aircenter and Gadberry for breach of contract and breach of express warranty (Counts One and Two); Aircenter for breach of implied warranty (Count Three); Aircenter, Gadberry and Blankenship for fraud and negligent misrepresentation (Count 4); Aircenter for violations of the Tennessee Consumer Protection Act ("TCPA"), Tenn. Code Ann. §§ 47-18-101 et seq. (Count Five); and Gann, Blankenship, and Twin Commander Aircraft LLC for negligence and negligence per se (Count 6). Plaintiff also demands punitive damages from all defendants (Count 7). Plaintiff seeks money damages and/or rescission of the Purchase Order (id. at 15).
Both parties submitted the Purchase Order as an exhibit (Doc. Nos. 8-2 & 15-5); neither party submitted the reverse side, which apparently contains the forum selection clause at issue. However, the parties admit the clause reads as follows:
12. Laws of the State of Tennessee shall govern this contract and transaction, and the parties further agree that venue for any matter relating to this contract shall be in Marion County, Tennessee. (Doc. No. 7, p. 1; Doc. No. 19, p. 3).
Defendants move under Fed. R. Civ. P. 12(b)(3), arguing that the forum selection clause is valid and enforceable and requires dismissal of the complaint against them for improper venue (Doc. No. 8, p. 1). Defendants cite Marion County, Tennessee, as the contractually proper venue for all claims related to the aircraft's sale (id. at 5), including tort claims (id.).*fn3 In further support of their position, Defendants cite Navickas v, Aircenter, Inc., Case No. 1:02-CV-363, 2003 WL 21212747 (Apr. 10, 2003) (memorandum); 2003 WL 21920947 (May 23, 2003) (judgment order), in which this Court, per Judge Edgar, enforced ...