United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON THIRD-PARTY DEFENDANT'S MOTION TO DISMISS
LEONARD T. STRAND, District Judge.
This case is before me on a motion (Doc. No. 45) by third-party defendant Antil S.p.A. (Antil) to dismiss on grounds of forum non conveniens. Defendants and third-party plaintiffs Braketown USA, Inc., d/b/a Mac-Tech (Braketown), and Ermak USA, Inc. (Ermak), have filed a resistance (Doc. No. 48) and Antil has filed a reply (Doc. No. 49). Plaintiff JTV Manufacturing, Inc. (JTV), has not taken a position on the motion. No party has requested oral argument and I find that oral argument is not necessary. See N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.
II. PROCEDURAL HISTORY
On November 27, 2013, JTV filed a petition (Doc. No. 4) in the Iowa District Court for O'Brien County naming Braketown and Ermak as defendants. On January 13, 2014, Ermak filed a notice (Doc. No. 1) of removal to this court on the basis of diversity jurisdiction. Braketown consented to the removal. Doc. No. 1-2. JTV filed an amended complaint (Doc. No. 14) on February 10, 2014.
JTV alleges that it is an Iowa corporation with its principal place of business in Sutherland, O'Brien County, Iowa. Doc. No. 14 at ¶ 1. It contends that Braketown and Ermak are Illinois corporations, with Braketown being headquartered in Wisconsin and Ermak being headquartered in Illinois. Id. at ¶¶ 2-3. JTV alleges that Braketown does business in Iowa as a sales agent for Ermak and that it has solicited business from JTV in O'Brien County, Iowa, since 1999. Id. at ¶ 4.
JTV's claims against Braketown and Ermak arise from JTV's purchase of a fiber laser cutting machine (the Machine) which consisted of both (a) an Ermaksan Laser Cutter (the Cutter) and (b) an automated load and unload system (the Load System) manufactured by Antil. JTV alleges that it entered into a contract to purchase the Machine from Braketown and Ermak in July 2011 and that the Machine was installed at JTV's facility in Sutherland, Iowa, on or about March 1, 2012. Id. at ¶¶ 8-12. According to JTV, the Machine has never operated properly, despite repeated repair efforts by Ermak employees. Id. at ¶ 16. JTV asserts claims against Braketown and Ermak for breach of contract, breach of express warranty, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose. Id. at pp. 4-7.
Braketown and Ermak have filed answers (Doc. Nos. 26, 27) in which they deny liability to JTV and raise various defenses. On October 7, 2014, Braketown and Ermak filed a third-party complaint (Doc. No. 28) against Antil. They allege that Antil is a limited liability company organized under the laws of Italy that manufactures robotics and automation equipment. Doc. No. 28 at ¶ 4. They further allege that Ermak entered into a contract with Antil under which Antil agreed to supply the Load System that Ermak would then sell to JTV as part of the Machine. Id. at ¶¶ 17, 23. Braketown and Ermak contend that the Load System, as supplied by Antil, is the faulty component that has prevented the Machine from operating properly at JTV's facility. Id. at ¶¶ 19-21. Braketown and Ermak assert claims against Antil for breach of contract, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose. Id. at pp. 4-7. They seek entry of judgment against Antil "in contribution for all sums that will be assessed against Third Party Plaintiffs, in favor of the Plaintiff, JTV Manufacturing, Inc., if any, in such amount that would be commensurate with the degree of misconduct attributable to the Third Party Defendant, Antil S.p.A., in causing the aforementioned Plaintiff's damages, and any such other and further relief as this Court determines appropriate and just." Id. at pp. 6-7.
All parties, including Antil, have consented to trial, disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. Nos. 30, 41. As such, this case has been referred to me by the Honorable Donald E. O'Brien, Senior United States District Judge. Id. On February 2, 2015, Antil filed a motion (Doc. No. 34) to dismiss the third-party complaint for lack of personal jurisdiction. I denied that motion by order (Doc. No. 44) filed April 8, 2015. I found that Antil had specifically directed activities toward Iowa such that the exercise of personal jurisdiction over it would not be inconsistent with principles of due process or fundamental fairness. Doc. No. 44 at 12. To the extent Antil relied on a forum-selection clause that allegedly became part of its agreement with Ermak, I concluded that the clause did not impact the personal jurisdiction analysis but could be relevant if Antil moved to dismiss on grounds of forum non conveniens. Id. at 17-18. Antil then filed its present motion.
III. RELEVANT FACTS
Antil is an Italian company that has nearly 50 employees, all of whom live and work in or near Milan, Italy. As is the situation in this case, Antil typically sells its products and services to machine constructors, who then sell the end products to their own customers. Antil's sales market is divided into two regions Italy and the rest of the world. It does approximately half of its business in Italy with most of the rest of its business occurring in other European countries.
Ermak is the United States sales representative of Ermaksan, a manufacturing company based in Turkey. One of Ermaksan's products is the Cutter that was sold to JTV as part of the Machine. Antil developed a business relationship with Ermaksan and, prior to 2011, made proposals to supply its equipment to Ermaksan for projects in Europe. Antil became aware of Ermak because of Antil's relationship with Ermaksan.
In 2011, Ermak asked Antil to provide a quotation for a Load System that Ermak would then combine with an Ermaksan Cutter and sell to JTV. Antil submitted its offer to Ermak via email on June 30, 2011. The first page of the offer includes the following statement: "Attachment: General Sales Conditions." Doc. No. 45-3 at 12 [emphasis in original]. The General Sales Conditions (GSC) include a section entitled "Jurisdiction" which states that Italian law applies and that the "exclusive jurisdiction for all possible disputes arising on this contract is that of Milan." Id. at 7. Ermak then issued a written purchase order to Antil on August 8, 2011. Antil provided a confirmation of the order in September 2011.
The Load System was shipped from Antil's facility in Milan in February 2012. Antil employees then traveled to JTV's Iowa facility in March 2012 to install the Load System and provide training. Antil later sent employees back ...