CSMI, LLC v. Intelagard, Inc.

2025 DNH 069

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

CSMI, LLC

v. Case No. 24-cv-235-SM-TSM Opinion No. 2025 DNH 069 Intelagard, Inc.

O R D E R

Defendant Intelagard, Inc. moves to dismiss the complaint

filed against it by CSMI, LLC for improper venue under Federal

Rule of Civil Procedure 12(b)(3), based on a forum selection

clause in the “Teaming Agreement” between the parties. CSMI

opposes the motion, arguing that the cited forum selection

clause does not apply to the claims in this case. For the

reasons that follow, Intelagard’s motion to dismiss is denied.

Despite moving to dismiss for improper venue, in the

“Overview” section of its memorandum, Intelagard makes

statements that appear to be aimed at personal jurisdiction.

Intelagard, however, did not cite Federal Rule of Civil

Procedure 12(b)(2), develop a defense of lack of personal

jurisdiction, cite pertinent authority, or even mention personal

jurisdiction in the body of the memorandum in support of the

motion to dismiss. 1 Intelagard also appears to conflate personal

1 Despite Intelagard’s minimal reference to personal jurisdiction, CSMI addressed the issue in depth and demonstrated that Intelagard’s contacts with CSMI in New Hampshire for jurisdiction and subject matter jurisdiction, which are entirely

separate issues. Given the lack of a developed and coherent

argument challenging personal jurisdiction, that defense is

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.”); Flanders v. Mass Resistance, No. 1:12-CV-

00262-JAW, 2013 WL 2237848, at *10 (D. Me. May 21, 2013)

(holding that defense of personal jurisdiction was waived where

defendants suggested they lacked minimum contacts with the forum

but failed to provide any developed argument).

Standard of Review

Venue is reviewed under different standards, depending on

the circumstances of the case. When a valid forum selection

clause requires a federal forum, the court determines venue

under 28 U.S.C. § 1404(a). Atlantic Marine Constr. Co. v. U.S.

District Court for the W. District of Tex., 571 U.S. 49, 60

(2013). On the other hand, if “a forum-selection clause is

alleged to require reference to a state or foreign forum, the

appropriate way for a federal court to enforce it is through a

motion to dismiss for forum non conveniens.” Rivera v. Kress

purposes of their contractual relationship support specific personal jurisdiction. Doc. no. 40, at 21-26.

2 Stores of Puerto Rico, Inc., 30 F.4th 98, 101–02 (1st Cir.

2022); Garcia v. 21st Century Techs. Grp., LLC, --- F. Supp. 3d

---, No. 24-CV-11106-DLC, 2025 WL 1030167, at *1 (D. Mass. Apr.

7, 2025). Intelagard contends that the forum selection clause

here requires that the case be brought in “Boulder County, in

the State of Colorado,” which apparently refers to a Colorado

state court. 2 Courts in the First Circuit address a forum

selection clause, requiring a state court forum, under the

standard used for Federal Rule of Civil Procedure 12(b)(6).

Amyndas Pharms., S.A. v. Zealand Pharma A/S, 48 F.4th 18, 30

(1st Cir. 2022); Claudio-De León v. Sistema Universitario Ana G.

Mendez, 775 F.3d 41, 46 (1st Cir. 2014).

For purposes of a motion to dismiss under Rule 12(b)(6),

the court takes “as true all well-pleaded facts alleged in the

proposed amended complaint, drawing all reasonable inferences in

the pleader’s favor.” Amyndas Pharms. 48 F.4th at 24. In

addition, the court “may consider not only the complaint but

also any documents annexed to it (the authenticity of which are

unchallenged) and other such documents that are sufficiently

referenced and/or relied upon in the complaint.” Rivera, 30

2 The cited forum selection clause also provides that the parties “consent and agree to personal jurisdiction and venue of any state or federal court of competent jurisdiction in the State of Colorado.” Doc. no. 39-2, at 8-9. Intelagard does not rely on that part of the forum selection clause, however.

3 F.4th at 102. Both parties submitted extrinsic documents,

without objection, which the court considers because their

authenticity is not disputed. See Garcia-Gesualdo v. Honeywell

Aerospace of P.R., Inc., 135 F.4th 10, 13 (1st Cir. 2025).

Background

As alleged in the amended complaint, CSMI and Intelagard

provide certain services to the military, along with other

customers. “CSMI provides management solutions and regional

capability in support of the defense and security of critical

infrastructure and provides direct support to the U.S. military

across operational environments globally.” Doc. no. 36, ¶ 6.

More specifically, “CSMI provides program management, technical

services and integrated logistics support for command, control,

communications, computers, cyber, intelligence surveillance and

reconnaissance, antiterrorism force protection, asset

protection, and related technologies.” Id. “Intelagard

manufactures chemical and biological agent decontamination

systems, [and] Intelagard’s systems are used by first

responders, fire fighters, and military personnel.” Id., ¶ 8.

In 2016, the United States Army was part of a government

project “to provide the nation and U.S. military forces safe,

effective, and innovative medical solutions to counter Chemical

Biological Radiological and Nuclear threats.” Id., ¶ 9. The

4 Army contracted with Advanced Technology International (“ATI”)

for that project. Id. Intelagard knew of the project, expected

to receive a solicitation “for acquisition and fielding of

decontamination systems,” and intended to submit a proposal in

response. Doc. no. 39-2, at 1. Intelagard, entered a “Teaming

Agreement” with CSMI, dated October 17, 2017, to respond to the

expected solicitation for a project proposal. Id.

The Teaming Agreement provided that Intelagard was

“undertaking, on its own behalf and at its own cost, bid and

proposal efforts to obtain a prime contract as the result of the

Solicitation.” Id. Similarly, CSMI was “undertaking, on its

own behalf, and at its own cost, bid and proposal efforts to

obtain a subcontract under any awarded prime contract.” Id.

For purposes of the Teaming Agreement, “neither Party is selling

supplies or services to the other in exchange for payment.” Id.

Intelagard bore the ultimate responsibility “for the

content, preparation and submission of the Proposal to the

Customer as well as team composition.” Id., at 2. CSMI was

expected to assist Intelagard in preparing the proposal. Id.

The Teaming Agreement also provided specific responsibilities

for CSMI, which included furnishing “all properly coordinated

proposal materials, information and data pertinent to the work

assigned to it.” Id. In the event Intelagard was awarded a

prime contract, the Teaming Agreement required the parties to

5 “undertake reasonable efforts to enter into a subcontract for

that portion of the work assigned to [CSMI].” Id., at 4. That

work would be done “at a price and other terms and conditions to

be mutually agreed upon between the Parties.” Id.

Under its terms, the Teaming Agreement remained in effect

until the first of fifteen possible events occurred, which

included the award of a prime contract to Intelagard and

execution of a subcontract between the parties. Id. at 6.

Certain provisions of the Teaming Agreement were to survive its

termination, including a forum selection clause. The forum

selection clause provides:

Any dispute, claim, action or suit arising out of or relating to this Agreement may only be brought exclusively in a court of competent jurisdiction in Boulder County, in the State of Colorado; and the Parties hereby consent and agree to personal jurisdiction and venue of any state or federal court or [sic] competent jurisdiction in the State of Colorado with respect to any such dispute, claim, action or suit and waive any defense or objection to the exercise of personal jurisdiction and/or venue of such court.

Doc. no. 39-2, at 8-9.

As the parties anticipated, ATI contracted with Intelagard

“to design, manufacture, and evaluate chemical decontamination

systems to potentially replace ageing legacy systems.” Doc. no.

36, ¶ 10. Intelagard then issued two Statements of Work, along

with Purchase Orders, to CSMI to subcontract “installation and

integration efforts and a portion of the test support to SCMI”

6 on the ATI contract. Doc. no. 41, at 19 & 27. CSMI agreed “to

provide field service representative support for Intelagard’s

systems in the U.S. and South Korea. CSMI’s services included

testing and evaluation support and system integration at

Intelagard’s facility in Colorado and at the U.S. Army’s Dugway

Proving Ground in Utah.” Id., ¶ 11; see also Purchase

Order/Statement of Work, doc. no. 41, at 19 & 27.

CSMI provided the agreed services between August of 2018

and September of 2021 under Intelagard’s Statements of Work and

Purchase Orders. Id., ¶¶ 12-13. CSMI sent Intelagard invoices

in August and September of 2021 for the services performed under

the purchase orders. Intelagard’s chief financial officer

emailed Randall Kaminsky, one of the two owner/members of CSMI,

at the end of September 2021, and promised payment when ATI paid

Intelagard.

Intelagard, however, did not make any payment on the amount

due, despite communications that Intelagard was completely

satisfied with the work and acknowledged the amount owed. When

years passed without payment, CSMI brought suit against

Intelagard, alleging claims for breach of contract, breach of

the covenant of good faith and fair dealing, unjust enrichment

or quantum meruit, and violation of New Hampshire’s Consumer

Protection Act, RSA 358-A:2.

7 Discussion

Intelagard moves to dismiss the claims, arguing that the

forum selection clause in the Teaming Agreement requires the

claims be brought in Colorado. CSMI objects, arguing that the

forum selection clause does not apply because the Teaming

Agreement and the agreement under the Statements of Work and

Purchase Orders are separate agreements and none of CSMI’s

claims arise out of or relate to the Teaming Agreement. The

court agrees that the forum selection clause does not apply to

CSMI’s claims in this case.

“Where, as here, a federal court is asked to enforce a

forum-selection clause, federal common law supplies the rules of

decision.” Amyndas Pharms., 48 F.4th at 30–31. “Under federal

common law, a contract must be read in accordance with its

express terms and the plain meaning thereof,” giving the terms

“their ordinary meaning unless the parties mutually intended and

agreed to an alternative meaning.” Id. (internal quotation

marks omitted). “Even so, an inquiring court must avoid tunnel

vision: instead of focusing myopically on individual words, it

must consider contractual provisions within the context of the

contract as a whole.” Id.

8 A. Teaming Agreement

Intelagard contends that the parties never entered a

subcontract, as was anticipated in the Teaming Agreement, and,

for that reason, the Teaming Agreement remained the only

contract between them. In making that argument, however,

Intelagard ignores the Statements of Work and Purchase Orders

for CSMI’s work on the ATI contract. See, e.g., SmartSky

Networks, LLC v. DAG Wireless, LTD., 93 F.4th 175, 178 (4th Cir.

2024) (noting that the parties’ business relationship “was

governed by several agreements in the form of statements of

work, purchase orders and a Teaming Agreement”); Aleron Gr., LLC

v. Ferguson, 2023 WL 4850166, at *2-*3 (E.D. Va. July 28, 2023)

(reciting facts demonstrating the interplay between a Teaming

Agreement and a subsequent statement of work contract).

As provided above, the Teaming Agreement covered the

relationship between Intelagard and CSMI for purposes of

developing a proposal to submit to ATI for the Army project.

The Teaming Agreement expressly did not cover selling supplies

or services or paying for supplies and services and did not

provide terms for CSMI’s work if and when ATI awarded Intelagard

the contract for the Army project. The Agreement stated that if

Intelagard were awarded the ATI contract, the parties would then

agree to a subcontract, which would provide the terms and

conditions for CSMI’s work. The Teaming Agreement terminated

9 when Intelagard was awarded the ATI contract and Intelagard and

CSMI agreed to terms for CSMI to provide services in support of

that contract in the form of the Statements of Work and Purchase

Orders.

Intelagard makes no argument and cites no authority to show

that the Statements of Work and Purchase Orders are not valid

agreements. Further, for purposes of the current motion to

dismiss, there is no dispute that CSMI satisfactorily performed

all of the work as agreed under the Statements of Work and

Purchase Orders. Intelagard also fails to explain how the terms

of CSMI’s work on the ATI contract were part of the Teaming

Agreement, particularly in light of the Agreement’s express

provisions to the contrary. 3 For these reasons, the court

construes the Statements of Work and the Purchase Orders to be

the subcontract between Intelagard and CSMI that was anticipated

3 Intelagard states that CSMI’s “tasks” that are billed in the unpaid invoices “easily fit the listed activities in Exhibit A [to the Teaming Agreement.]” Doc. no. 39-1, at 4. Exhibit A, however, provided the anticipated scope of work for CSMI under the “Program,” if Intelagard were awarded the contract with ATI. While Exhibit A provides a proposed scope of work that might be incorporated into an anticipated future subcontract, it is not an agreement to provide services with stated terms. Instead, Exhibit A states: “[B]oth parties understand and agree that this Scope of Work is only an overview of possible activities to be performed under any resulting subcontract and that the scope of activities actually performed will be dependent on the Program contract as awarded.” Doc. no. 49-1, at 11 (emphasis added). Therefore, Exhibit A does not provide contract terms for the work done by CSMI as a subcontractor for the ATI contract.

10 in the Teaming Agreement. As a result, the Teaming Agreement

terminated on July 30, 2018. 4

B. Forum Selection Clause

Intelagard argues, nevertheless, that the forum selection

clause applies to CSMI’s claims because the forum selection

clause survived the termination of the agreement. See Doc. no.

39-2, at 6. By its terms, however, the forum selection clause

applies only to a “dispute, claim, action or suit arising out of

or relating to” the Teaming Agreement. As stated previously,

the Teaming Agreement provided the terms for Intelagard and CSMI

to work together toward the common goal of Intelagard being

awarded a contract by ATI to work on the Army project. The

parties’ teaming went as planned, without disputes, claims,

actions, or suits, and ATI awarded Intelagard the contract for

the Army project. CSMI and Intelagard entered their subsequent

subcontract under the Statements of Work and the Purchase

Orders, which caused the Teaming Agreement to terminate.

Intelagard argues, nevertheless, that CSMI’s claims arise

from or are related to the Teaming Agreement because the parties

would not have proceeded to their later relationship, in which

4 As CSMI points out, the Teaming Agreement also provided that it would terminate one year from its effective date, on October 17, 2018.

11 CSMI performed services for Intelagard, if they had not first

entered the Teaming Agreement. A forum selection clause

requirement that the claim arise from or relate to the agreement

is limited to the rights or duties provided under that

agreement. Berrey v. Evolve Cellular, Inc., 2023 WL 11199739,

at *6 (D. Mass. Oct. 31, 2023); Doe v. Seacamp Ass’n, Inc., 276

F. Supp. 2d 222, 228 (D. Mass. 2003). CSMI seeks the amounts

owed by Intelagard under the Statements of Work and Purchase

Orders, as billed in the invoices. As such, CSMI’s claims arise

from and relate to those agreements and do not arise from or

relate to the Teaming Agreement. As a result, the forum

selection clause does not apply.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (doc. no. 39) is denied.

SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

June 2, 2025

cc: Counsel of Record