BVCIBC Funding, LLC v. La Jolla Texaco

13 Mass. L. Rptr. 730
CourtMassachusetts Superior Court
DecidedSeptember 26, 2001
DocketNo. 20011584C
StatusPublished

This text of 13 Mass. L. Rptr. 730 (BVCIBC Funding, LLC v. La Jolla Texaco) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BVCIBC Funding, LLC v. La Jolla Texaco, 13 Mass. L. Rptr. 730 (Mass. Ct. App. 2001).

Opinion

Lauriat, J.

BVCIBC Funding, LLC (“BVCIBC”) has brought this action against the defendants for breach [731]*731of an equipment lease and an unconditional guaranty made part of the lease agreement. BVCIBC has also sought injunctive relief requiring the defendants to return the leased equipment. This matter is before the court on the motion of one defendant, Ramin R. Hatem (“Hatem"), to dismiss the action against him pursuant to Mass.R.Civ.R 12(b)(2) for lack of personal jurisdiction. Hatem asserts that BVCIBC has not sustained its burden of proving personal jurisdiction over him, that the guaranty’s forum selection cause designating a Massachusetts forum was unreasonable as applied to him, and that the Massachusetts longarm statute does not provide a basis for asserting personal jurisdiction over him. Alternatively, Hatem seeks dismissal based on the doctrine of forum non conveniens. BVCIBC does not contest that the Massachusetts longarm statute is inapplicable in these circumstances, and bases its claims for jurisdiction solely on the forum selection clause. For the following reasons, Hatem’s motion to dismiss is denied.

BACKGROUND

Hatem was associated with the defendant, Wind and Sea Auto Center (“WAS”) as a general partner from March 1997 to February 1999. In his Memorandum in Support of Motion to Dismiss and accompanying affidavit, Hatem contends that he and co-defendant Masoud Mofidi (“Masoud”) were partners in WAS. Masoud conducted the company’s day to day operations while Hatem reviewed the company’s books, records, and operations. On or about March 21, 1998, WAS executed an equipment lease with BankVest Capital Corp. (“BankVest”). BankVest later sold its rights under the lease to BVCIBC. The lease contained a section labeled “Unconditional Guaranty” which included the following provision:

(c) that this Guaranty shall be governed by the laws of the Commonwealth of Massachusetts and each Guarantor consents to the jurisdiction of any court located in the Commonwealth.

The guaranty contained signatures purporting to be those of Manoucheher Mofidi, Masoud’s brother, and Hatem. Hatem denies that he signed the lease, and alleges that the signature above his name on the guaranty is not his.

I.

A motion to dismiss under Mass.R.Civ.R 12(b)(2) places the burden on the plaintiff “to prove facts upon which personal jurisdiction is to be determined.” Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978). Hatem insists that this burden required BVCIBC to submit evidence, by way of affidavit or otherwise, in response to his motion to dismiss and the accompanying affidavit contending that Hatem did not sign the lease.

The court concludes that in the present circumstances, BVCIBC need not submit further evidence. A court may receive and consider affidavits to resolve jurisdictional questions, but there is significant “procedural leeway.” Kleinerman v. Morse, 26 Mass.App.Ct. 819, 821 n.4(1989). AMass.R.Civ.P. 12(b)(2) motion may also be decided on the basis of uncontroverted facts set forth in the parties’ written materials, information developed at evidentiary hearings, or on the complaint. Id. A supporting affidavit may be necessary when the complaint alone does not provide sufficient facts to support jurisdiction. Harvard University v. Pretsch, 1996 Mass.App.Dec. 100, 101. However, under the facts as alleged in BVCIBC’s complaint, coupled with a copy of the lease agreement as an attached exhibit, BVCIBC has met its burden in response to a motion to dismiss under MassR.Civ.P. 12(b)(2).

The court confronts a stark factual dispute as to the validity of Hatem’s signature. To that dispute, the court must apply the familiar Rule 12 standard that the motion must be denied if there is any set of facts under which the plaintiff can prevail. Since a forum selection clause can provide an independent basis for personal jurisdiction, the plaintiffs factual allegations are sufficient to confer jurisdiction if the forum selection clause at issue is valid. Graphics Leasing Corp. v. The Y Weekly, 1991 Mass.App.Dec. 110, 114 n.7.

II.

The United States Supreme Court has held that forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1971). The Court in Bremen imposed a heavy burden of proof upon the resisting party to show that enforcement was clearly unreasonable because of fraud, undue influence, overweening bargaining power, or such serious inconvenience that the defendant was effectively deprived of his day in court. Id. at 12-19. Massachusetts law has followed the modern trend in upholding forum selection clauses that are reasonable and fair. Jacobsen v. Mailboxes, Etc. U.S.A., Inc., 419 Mass. 572, 575 (1995).

Massachusetts appellate courts have not addressed standards for determining a fair and reasonable forum selection clause. However, the Superior Court in Lectric’s Inc. v. Power Controls Inc., Civil No. 94-2564 (Mass.Super. 1995) (Cratsley, J.) (3 Mass. L. Rptr. 507), and in Renaissance Worldwide Strategy, Inc. v. Bridge Strategy Group, LLC., Civil No. 99-1150 (Mass.Super. 2000) (McEvoy, J.) (11 Mass. L. Rptr. 679), has adopted a six-factor test to make such a determination. The six factors are “1.) which state law governs the contract; 2.) the residence of the parties and the witnesses; 3.) the place of execution and/or performance of the contract; 4.) public policy; 5.) availability of remedies in the selected forum; and 6.) inconvenience and injustice.” Lectric Inc., supra, citing Carefree Vacations, Inc. v. Brunner, 615 F.Sup. 211, 214 (W.D.Tenn. 1985).

Applying these factors to this case, the forum selection clause expressly states that Massachusetts law will govern disputes. Other than the plaintiff, all par[732]*732ties and likely witnesses are California residents. Plaintiff concedes that execution and performance of the lease occurred in California. This court assumes, for the purposes of this motion, that California and Massachusetts offer comparable remedies.

Public policy considerations encapsulate three of the Bremen concerns: fraud, undue influence and overweening bargaining power. Renaissance Worldwide, supra. Hatem does not contend that BVCIBC attempted to defraud him or unduly influenced him to sign the guaranty. Rather, Hatem argues that the selection of the Massachusetts forum resulted from BVCIBC’s overweening bargaining power. Hatem cites the use of a non-negotiable standard form lease and guaranty containing boilerplate language to designate a specific forum as evidence of this point. However, in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), the Supreme Court found that a boilerplate forum selection clause printed on the back of a cruise ticket was sufficient to force a Washington state couple to litigate their claims in a Florida forum. The Carnival Cruise Court based its decision on a countervailing public policy interest in encouraging certainty in contractual transactions.

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Related

The Bremen v. Zapata Off-Shore Co.
407 U.S. 1 (Supreme Court, 1972)
Carnival Cruise Lines, Inc. v. Shute
499 U.S. 585 (Supreme Court, 1991)
W.R. Grace & Co. v. Hartford Accident & Indemnity Co.
555 N.E.2d 214 (Massachusetts Supreme Judicial Court, 1990)
Droukas v. Divers Training Academy, Inc.
376 N.E.2d 548 (Massachusetts Supreme Judicial Court, 1978)
Kleinerman v. Morse
533 N.E.2d 221 (Massachusetts Appeals Court, 1989)
Jacobson v. Mailboxes Etc. U.S.A., Inc.
419 Mass. 572 (Massachusetts Supreme Judicial Court, 1995)
Lectric's & Inc. v. Power Controls, Inc.
3 Mass. L. Rptr. 507 (Massachusetts Superior Court, 1995)

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Bluebook (online)
13 Mass. L. Rptr. 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bvcibc-funding-llc-v-la-jolla-texaco-masssuperct-2001.