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FOWLER HIRTZEL MCNULTY & ATTORNEYS FOR DEFENDANT,
SPAULDING, LLP THE TJX COMPANIES, INC. (Incorrectly
BY: MATTHEW D. VODZAK, ESQUIRE Identified as “TJX COMPANIES, INC.
I.D. #:309713 T/A T.J. MAXX AND MARSHALLS, T.J.
E-MAIL: MVODZAK@FHMSLAW.COM MAX OF PA, INC. T/A T.J. MAXX, AND
THREE LOGAN SQUARE MARMAXX OPERATING CORP”)
1717 ARCH STREET, SUITE 1310
PHILADELPHIA, PA 19103
215 789 4848
VITAMIN ENERGY, INC. IN THE COURT OF COMMON PLEAS
DELAWARE COUNTY
Plaintiff, CIVIL ACTION - LAW
v.
TJX COMPANIES, INC. t/a T.J. MAXX and NO. CV-2021-010135
MARSHALLS; T.J. MAX OF PA, INC. t/a T.J.
MAXX; and MARMAXX OPERATING CORP
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF
DEFENDANT THE TJX COMPANIES, INC. (Incorrectly Identified as “TJX
COMPANIES, INC. T/A T.J. MAXX AND MARSHALLS, T.J. MAX OF PA, INC. T/A
T.J. MAXX, AND MARMAXX OPERATING CORP”)
I. MATTER BEFORE THE COURT
Defendant, The TJX Companies, Inc. (incorrectly identified as “TJX Companies, Inc. t/a
T.J. Maxx and Marshalls, T.J. Max of PA, Inc. t/a T.J. Maxx, and Marmaxx Operating Corp.,” and
hereafter “TJX”), seeks to dismiss Plaintiff, Vitamin Energy, Inc.’s, Complaint, because the
agreements between the parties requires this case to be brought in the courts of Massachusetts.
II. QUESTIONS PRESENTED
1. Should the Court dismiss Vitamin Energy’s Complaint, because its breach-of-
contract claim is subject to a forum selection clause for Massachusetts?
Suggested Answer: Yes.
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III. STATEMENT OF FACTS
This matter is a claim for breach of contract by Vitamin Energy against TJX. See Exhibit
“A” (Vitamin Energy’s Complaint.) Upon information and belief, Vitamin Energy is a Delaware
corporation with a place of business in Glen Mills, Pennsylvania, that sells energy shots, drinks
contained in 5 mL bottles that are designed to provide consumers with energy and vitamins. TJX,
a Delaware corporation with its principal place of business in Framingham, Massachusetts, is the
leading off-price apparel and home fashions retailer in the U.S. and worldwide.
Vitamin Energy sued TJX for allegedly failing to pay for goods that it purchased from
Vitamin Energy. TJX denies Vitamin Energy’s allegations. The Terms and Conditions for the
purchase orders—the contracts between TJX and Vitamin Energy—have a choice-of-law and
forum-selection provision in favor of Massachusetts. A copy of the Purchase Order Terms and
Conditions, which were part of Exhibit “A” and “B” to Plaintiff’s Complaint, are Exhibit “B”.
The provision states:
17. This Order, and any claim arising under, based upon, or relating to this
Order or the transaction contemplated by this Order, shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts, but without giving effect to any choice or conflict of law provision
or rule that would cause application of the law of any other jurisdiction. Any action
by Seller for breach of this Order must be commenced, and Buyer must be served
with process in any such action, within a year of the date of breach. All suits or
proceedings by Seller against Buyer and its affiliates shall be brought or maintained
only in courts of proper jurisdiction located in the Commonwealth of
Massachusetts. Seller submits to the jurisdiction of the Massachusetts courts, and
as well to the jurisdiction of any other court in which a third-party claim may be
brought against Buyer, for purposes of any suit or proceeding by Buyer or any of
its affiliates or any agent of Buyer or any of its affiliates based upon or arising out
of or relating to this Order or the Goods, and Seller agrees that it will not seek a
transfer or jurisdictional dismissal of any such suit or proceeding brought in any
such court. . . .
Ex. B., at 6.
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Vitamin Energy freely entered into the Purchase Orders with TJX—a Massachusetts-based
company. The Purchase Orders were for interstate shipment and distribution of Vitamin Energy’s
goods. A copy of the Routing and Distribution Instructions are attached as Exhibit “C”. Some
goods in the Purchase Orders had an ultimate destination of Massachusetts. This action arises
under, is based on, or relates to the Purchase Orders between Vitamin Energy and TJX. By entering
into the Purchase Orders, Vitamin Energy consented to jurisdiction in Massachusetts. By entering
into the Purchase Orders, Vitamin Energy agreed to file any suit arising out of the Purchase Orders
only in Massachusetts courts. By filing this action, Vitamin Energy violated the forum selection
clause, and the Court should dismiss this case. Vitamin Energy must file any lawsuit in the courts
of Massachusetts.
IV. LEGAL ARGUMENT
The Court should dismiss Vitamin Energy’s Complaint. It must file its claims against TJX
in Massachusetts.
A defendant may file preliminary objections if the complaint fails to state a claim for which
relief may be granted. See Pa.R.Civ.P. 1028(a)(4). Failure to state a claim for which relief may be
granted is a non-waivable defense. Pa.R.Civ.P. 1032(a). In considering preliminary objection in
the nature of a demurrer, the court considers as true all well-pleaded facts in the complaint and all
reasonably derivative inferences. Morgan Trailer Mfg. Co. v. Hydraroll, Ltd., 759 A.2d 926, 929
(Pa. Super. 2000).
A. Massachusetts law treats a request to enforce a forum selection clause as a motion
to dismiss for failure to state a claim.
The Agreement chooses Massachusetts law, and Pennsylvania courts generally give effect
to contractual choice-of-law provisions. Synthes USA Sales, LLC v. Harrison, 83 A.3d 232 (Pa.
{W1363973.1} 3
Super. 2013). A conflict-of-laws analysis is unnecessary since the parties chose Massachusetts
law. See id.; Restatement (Second) of Conflict of Laws §187(1).
Massachusetts law treats a motion to enforce a forum-selection clause as a motion to
dismiss for failure to state a claim—not a challenge to venue. Casavant v. Norwegian Cruise Line,
Ltd., 829 N.E.2d 1171, 1176 (Mass. 2005). Such a motion “is, in legal effect, a motion to dismiss
for failure to state a claim assertable within the State of filing based on contractual limitations
allegedly agreed to by the parties” Id. The Massachusetts standard tracks federal and Pennsylvania
practice. Id.; Morgan Trailer Mfg., 759 A.2d at 929 (addressing appeal from order sustaining
preliminary objections in the nature of a demurrer based on a forum selection clause in favor of
England).
B. The parties’ agreement requires Vitamin Energy to file any suit in Massachusetts.
Massachusetts courts will enforce a forum selection clause “so long as it fair and reasonable
to do so.” Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 740 N.E.2d 195, 201 (Mass.
2000); Jacobson v. Mailboxes, Etc. USA, 646 N.E.2d 741, 744 (Mass. 1995). “The opponent of a
forum selection clause bears the ‘substantial burden’ of showing that enforcement of a forum
selection clause would be unfair and unreasonable.” Taylor v. E. Connection Operating, Inc., 988
N.E.2d 408, 410 (Mass. 2013) (quotation omitted).
For instance, in Melia v. Zenhire, Inc., 967 N.E.2d 580 (Mass. 2012), the plaintiff entered
into an executive employment contract with the defendant. A forum selection clause required that
all disputes arising out of the contract be litigated in Erie County, New York. The Supreme Judicial
Court held that the forum clause was enforceable, because the plaintiff’s employment-related
Massachusetts-law claims could be litigated in the chosen forum using Massachusetts law. Id. at
584.
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The Purchase Orders are freely negotiated commercial contracts because they are between
two businesses for the sale of goods. Massachusetts courts will enforce forum selection clauses
even when one of the parties is not a business. See Melia, supra.
Vitamin Energy does not allege that TJX obtained the forum selection clause in the
Purchase Orders through fraud, duress, abuse of economic power, or other unconscionable means,
because it could not so allege. Enforcement of the forum selection clause in the Purchase Orders
would be fair and reasonable.
Vitamin Energy entered into contracts with a Massachusetts business. Vitamin Energy
entered into contracts to ship goods in interstate commerce—including into Massachusetts. Having
agreed to file any lawsuits in Massachusetts, Vitamin Energy cannot renege on its agreement. TJX
requests that the Court enforce the forum selection clauses in the agreements between TJX and
Vitamin Energy.
V. RELIEF REQUESTED
The Court sustain TJX’s Preliminary Objections and dismiss Vitamin Energy’s Complaint.
FOWLER HIRTZEL MCNULTY &
SPAULDING, LLP
By:
DATED: February 15, 2022 Matthew D. Vodzak, Esquire
Attorney for Defendant, The TJX
Companies, Inc..
{W1363973.1} 5
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FOWLER HIRTZEL MCNULTY & ATTORNEYS FOR DEFENDANT, SPAULDING, LLP THE TJX COMPANIES, INC. (Incorrectly BY: MATTHEW D. VODZAK, ESQUIRE Identified as “TJX COMPANIES, INC. I.D. #:309713 T/A T.J. MAXX AND MARSHALLS, T.J. E-MAIL: MVODZAK@FHMSLAW.COM MAX OF PA, INC. T/A T.J. MAXX, AND THREE LOGAN SQUARE MARMAXX OPERATING CORP”) 1717 ARCH STREET, SUITE 1310 PHILADELPHIA, PA 19103 215 789 4848 VITAMIN ENERGY, INC. IN THE COURT OF COMMON PLEAS DELAWARE COUNTY Plaintiff, CIVIL ACTION - LAW v. TJX COMPANIES, INC. t/a T.J. MAXX and NO. CV-2021-010135 MARSHALLS; T.J. MAX OF PA, INC. t/a T.J. MAXX; and MARMAXX OPERATING CORP Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF DEFENDANT THE TJX COMPANIES, INC. (Incorrectly Identified as “TJX COMPANIES, INC. T/A T.J. MAXX AND MARSHALLS, T.J. MAX OF PA, INC. T/A T.J. MAXX, AND MARMAXX OPERATING CORP”) I. MATTER BEFORE THE COURT Defendant, The TJX Companies, Inc. (incorrectly identified as “TJX Companies, Inc. t/a T.J. Maxx and Marshalls, T.J. Max of PA, Inc. t/a T.J. Maxx, and Marmaxx Operating Corp.,” and hereafter “TJX”), seeks to dismiss Plaintiff, Vitamin Energy, Inc.’s, Complaint, because the agreements between the parties requires this case to be brought in the courts of Massachusetts. II. QUESTIONS PRESENTED 1. Should the Court dismiss Vitamin Energy’s Complaint, because its breach-of- contract claim is subject to a forum selection clause for Massachusetts? Suggested Answer: Yes. {W1363973.1} 1 III. STATEMENT OF FACTS This matter is a claim for breach of contract by Vitamin Energy against TJX. See Exhibit “A” (Vitamin Energy’s Complaint.) Upon information and belief, Vitamin Energy is a Delaware corporation with a place of business in Glen Mills, Pennsylvania, that sells energy shots, drinks contained in 5 mL bottles that are designed to provide consumers with energy and vitamins. TJX, a Delaware corporation with its principal place of business in Framingham, Massachusetts, is the leading off-price apparel and home fashions retailer in the U.S. and worldwide. Vitamin Energy sued TJX for allegedly failing to pay for goods that it purchased from Vitamin Energy. TJX denies Vitamin Energy’s allegations. The Terms and Conditions for the purchase orders—the contracts between TJX and Vitamin Energy—have a choice-of-law and forum-selection provision in favor of Massachusetts. A copy of the Purchase Order Terms and Conditions, which were part of Exhibit “A” and “B” to Plaintiff’s Complaint, are Exhibit “B”. The provision states: 17. This Order, and any claim arising under, based upon, or relating to this Order or the transaction contemplated by this Order, shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, but without giving effect to any choice or conflict of law provision or rule that would cause application of the law of any other jurisdiction. Any action by Seller for breach of this Order must be commenced, and Buyer must be served with process in any such action, within a year of the date of breach. All suits or proceedings by Seller against Buyer and its affiliates shall be brought or maintained only in courts of proper jurisdiction located in the Commonwealth of Massachusetts. Seller submits to the jurisdiction of the Massachusetts courts, and as well to the jurisdiction of any other court in which a third-party claim may be brought against Buyer, for purposes of any suit or proceeding by Buyer or any of its affiliates or any agent of Buyer or any of its affiliates based upon or arising out of or relating to this Order or the Goods, and Seller agrees that it will not seek a transfer or jurisdictional dismissal of any such suit or proceeding brought in any such court. . . . Ex. B., at 6. {W1363973.1} 2 Vitamin Energy freely entered into the Purchase Orders with TJX—a Massachusetts-based company. The Purchase Orders were for interstate shipment and distribution of Vitamin Energy’s goods. A copy of the Routing and Distribution Instructions are attached as Exhibit “C”. Some goods in the Purchase Orders had an ultimate destination of Massachusetts. This action arises under, is based on, or relates to the Purchase Orders between Vitamin Energy and TJX. By entering into the Purchase Orders, Vitamin Energy consented to jurisdiction in Massachusetts. By entering into the Purchase Orders, Vitamin Energy agreed to file any suit arising out of the Purchase Orders only in Massachusetts courts. By filing this action, Vitamin Energy violated the forum selection clause, and the Court should dismiss this case. Vitamin Energy must file any lawsuit in the courts of Massachusetts. IV. LEGAL ARGUMENT The Court should dismiss Vitamin Energy’s Complaint. It must file its claims against TJX in Massachusetts. A defendant may file preliminary objections if the complaint fails to state a claim for which relief may be granted. See Pa.R.Civ.P. 1028(a)(4). Failure to state a claim for which relief may be granted is a non-waivable defense. Pa.R.Civ.P. 1032(a). In considering preliminary objection in the nature of a demurrer, the court considers as true all well-pleaded facts in the complaint and all reasonably derivative inferences. Morgan Trailer Mfg. Co. v. Hydraroll, Ltd., 759 A.2d 926, 929 (Pa. Super. 2000). A. Massachusetts law treats a request to enforce a forum selection clause as a motion to dismiss for failure to state a claim. The Agreement chooses Massachusetts law, and Pennsylvania courts generally give effect to contractual choice-of-law provisions. Synthes USA Sales, LLC v. Harrison, 83 A.3d 232 (Pa. {W1363973.1} 3 Super. 2013). A conflict-of-laws analysis is unnecessary since the parties chose Massachusetts law. See id.; Restatement (Second) of Conflict of Laws §187(1). Massachusetts law treats a motion to enforce a forum-selection clause as a motion to dismiss for failure to state a claim—not a challenge to venue. Casavant v. Norwegian Cruise Line, Ltd., 829 N.E.2d 1171, 1176 (Mass. 2005). Such a motion “is, in legal effect, a motion to dismiss for failure to state a claim assertable within the State of filing based on contractual limitations allegedly agreed to by the parties” Id. The Massachusetts standard tracks federal and Pennsylvania practice. Id.; Morgan Trailer Mfg., 759 A.2d at 929 (addressing appeal from order sustaining preliminary objections in the nature of a demurrer based on a forum selection clause in favor of England). B. The parties’ agreement requires Vitamin Energy to file any suit in Massachusetts. Massachusetts courts will enforce a forum selection clause “so long as it fair and reasonable to do so.” Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 740 N.E.2d 195, 201 (Mass. 2000); Jacobson v. Mailboxes, Etc. USA, 646 N.E.2d 741, 744 (Mass. 1995). “The opponent of a forum selection clause bears the ‘substantial burden’ of showing that enforcement of a forum selection clause would be unfair and unreasonable.” Taylor v. E. Connection Operating, Inc., 988 N.E.2d 408, 410 (Mass. 2013) (quotation omitted). For instance, in Melia v. Zenhire, Inc., 967 N.E.2d 580 (Mass. 2012), the plaintiff entered into an executive employment contract with the defendant. A forum selection clause required that all disputes arising out of the contract be litigated in Erie County, New York. The Supreme Judicial Court held that the forum clause was enforceable, because the plaintiff’s employment-related Massachusetts-law claims could be litigated in the chosen forum using Massachusetts law. Id. at 584. {W1363973.1} 4 The Purchase Orders are freely negotiated commercial contracts because they are between two businesses for the sale of goods. Massachusetts courts will enforce forum selection clauses even when one of the parties is not a business. See Melia, supra. Vitamin Energy does not allege that TJX obtained the forum selection clause in the Purchase Orders through fraud, duress, abuse of economic power, or other unconscionable means, because it could not so allege. Enforcement of the forum selection clause in the Purchase Orders would be fair and reasonable. Vitamin Energy entered into contracts with a Massachusetts business. Vitamin Energy entered into contracts to ship goods in interstate commerce—including into Massachusetts. Having agreed to file any lawsuits in Massachusetts, Vitamin Energy cannot renege on its agreement. TJX requests that the Court enforce the forum selection clauses in the agreements between TJX and Vitamin Energy. V. RELIEF REQUESTED The Court sustain TJX’s Preliminary Objections and dismiss Vitamin Energy’s Complaint. FOWLER HIRTZEL MCNULTY & SPAULDING, LLP By: DATED: February 15, 2022 Matthew D. Vodzak, Esquire Attorney for Defendant, The TJX Companies, Inc.. {W1363973.1} 5