Preview
(FILED: NASSAU COUNTY CLERK 08717/2015 12:41 PM INDEX NO. 604244/2015
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/17/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
PARTNERS IN SAFETY INC.,
Plaintiff, : Index No.: 604244/2015
-against- :
CARDWORKS ACQUIRING LLC and
MERRICK BANK CORPORATION,
Defendants.
MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
SATTERLEE STEPHENS BURKE & BURKE LLP
230 PARK AVENUE
New York, NEw York 10169
PHONE: (212) 818-9200
FAX: (212) 818-9606
ATTORNEYS FOR DEFENDANTS
CARDWORKS ACQUIRING LLC AND
MERRICK BANK CORPORATION
2274810_4TABLE OF CONTENTS
Page(s)
PRELIMINARY STATEMENT .........ccccccescssssssesssessesesceseecsesssssesseesassnessesseestasssesseesecsacecenseaneesees 1
BACKGROUND .......sscscsesceecseesseesstessesssecsseesnesssesseesscesseesscesessucssneseeesassnesoessaessisesnssseesseesneseecsaneteete 2
The Merchant Application and Merchant Agreement .0..........0.ccessesssesscesseesseeseeeeatssnessnesseee 2
Plaintiff's Complaint... cccsseseetccsssssesessssecseenesesssssenssuesessesnsaessessesssenessesessesseeseeneenens 4
ARGUMENT ou... estes eecsecsscsseesssessessresseesseonneencenessesssessuesatsssessusssesseesesssssssuesnessesssnssesssaneseeeaness 5
PLAINTIFF’S COMPLAINT MUST BE DISMISSED FOR INCORRECT VENUE. ..........0:00++ 5
CONCLUSION. ......sccsccssesssesssessneessessuessensssecssssusesusessessssssssescssesssessnecsecsnsessesssssnessneensseassenstensesneesaesd 6
2274810_4TABLE OF AUTHORITIES
Page(s)
Cases
Adler v. 20/20 Cos.,
82 A.D.3d 918, 919 N.Y.S.2d 39 (2d Dep't 2011) ...sssecssessssecssssssessssersneenssnessnvecssueessnecnnseesee 5
Boss v. American Express Fin. Advisors, Inc.,
6 N.Y.3d 242, 844 N.E.2d 1142, 811 N.Y.S.2d 620 (2006).......ccssescsesseesnescnseesteeatenneeeanenseennens 5
Coombs v. Juice Works Development Inc.,
81 P.3d 769, 486 Utah Adv. Rep 52 (Court of Appeals 2003) .....ssescssecsssecnnecsnnessssesssnesrenee 5,6
Freeford Ltd. v. Pendleton,
53 A.D.3d 32, 857 N.Y.S.2d 62 (1st Dep’t 2008) .......secssesseessesseecsssseassenseneereneesnenneeesnenseesaessee 4
Lowenbraun v. McKeon,
98 A.D.3d 655, 950 N.Y.S.2d 381 (2d Dep’t 2012)..
Montoya v. Cousins Chanos Casino, LLC,
34 Misc. 1211(A), 943 N.Y.S.2d 793, 2012 WL 118475 (Sup. Ct., N.Y. Co.,
Jan. 12, 2012)..
National Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley,
257 A.D.2d 228, 690 N.Y.S.2d 57 (Ist Dep’t 1999) ...esssesssssccsessnecssnsessesssessessrorssesnsnsessseessneea 6
Prows v. Pinpoint Retail Systems, Inc.,
868 P.2d 809 (Supreme Court of Utah 1993) .
Other Authorities
CPLR § 321 1(a)(1) cscsssesssesssessessssssssseneessssseceneccnscsnesssessneesieensesrecnrsrasssessucssscenscsaecsnsesncesseenecnnennsnes 1,5
ii
2274810_4Defendants CardWorks Acquiring LLC (“CardWorks”) and Merrick Bank Corporation
(“Merrick”) (collectively, “Defendants”), through their attorneys, Satterlee Stephens Burke &
Burke LLP, respectfully submit the following memorandum of law in support of Defendants’
motion, pursuant to CPLR § 3211(a)(1), for an Order: (i) dismissing the Complaint of Plaintiff
Partners In Safety Inc. (“Plaintiff” or “Partners in Safety”) in its entirety as a result of having
been brought in an incorrect venue; (ii) awarding Defendants recovery of their costs associated
with this action, including but not limited to reasonable attorneys’ fees; and (iii) awarding
Defendants such further relief as the Court deems just and proper.
PRELIMINARY STATEMENT
This action arises out of Plaintiff's allegation that it was improperly charged
approximately $25,000 in service fees by Defendants in violation of the parties’ written
agreement."
The contractual obligations allegedly breached are set forth in two (2) written agreements
entered into by the parties: (i) the Merchant Application; and (ii) the Merchant Agreement.
When it executed the Merchant Application, Plaintiff expressly acknowledged that it had
received, read, understood and agreed to be bound by the terms of the Merchant Agreement, the
terms of which are expressly incorporated into the Merchant Application.
The Merchant Agreement provides that all disputes between the parties arising out of the
agreement are subject to the exclusive jurisdiction of the State and Federal courts of Salt Lake
County, Utah. Despite the clear, unambiguous and mandatory forum selection clause contained
within the Merchant Agreement, which Plaintiff agreed to be bound by, Plaintiff has wrongfully
1 Plaintiff's Complaint also asserts negligence and conversion claims. As discussed below, these
claims, like the contract claim, must be dismissed pursuant to the forum selection clause in the subject agreement.
1
22748104commenced this action in the Supreme Court of the State of New York. Plaintiff's Complaint
must be dismissed.”
BACKGROUND
Defendants respectfully refer the Court to the accompanying Affidavit of Russell
Berman, sworn to August 13, 2015, with exhibits annexed thereto (the “Berman Aff.”), and the
accompanying Affidavit of Michael H. Gibson, sworn to August 14, 2015, with exhibits annexed
thereto (the “Gibson Aff.").
The Merchant Application and Merchant Agreement
Defendant CardWorks is an independent sales organization (“ISO”) in the consumer
credit industry. As such, it has entered a contractual relationship with Defendant Merrick (a
member of the Visa, MasterCard and Discover transaction card associations) pursuant to which
CardWorks, among other things, solicits merchants (such as Plaintiff Partners in Safety) for the
provision of Merrick’s credit and debit card settlement services which permit the merchant to
accept Visa, MasterCard and Discover transaction cards as a means of payment for goods and
services. Upon the successful solicitation of a merchant, a three party agreement among
Merrick, CardWorks and the merchant is executed, which agreement sets forth the rights and
obligations of the parties. On or about June 12, 2013, the parties to this lawsuit executed such an
agreement (the “Merchant Application”). Berman Aff. at 2 and Ex. A annexed thereto.
Among the “Important Responsibilities” of the merchant (Plaintiff in this case) identified
on the Merchant Application is, “Reviewing and understanding the Merchant Agreement.” Jd. at
4/3 and Ex. A annexed there to at p.1. The Merchant Application also provides in pertinent part:
2 The Merchant Agreement also includes damages limitations which cap Defendants’ liability.
While not addressed in this motion to dismiss for incorrect venue, the liability cap defense, as well as all other
defenses, are expressly reserved by the Defendants.
2274810_4MERCHANT APPLICATION AND AGREEMENT
ACCEPTANCE:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR
OPENING A NEW ACCOUNT
By executing this Merchant Application on behalf of the merchant
described above (“Merchant”), the undersigned individual(s)
represent(s), warrant(s), and acknowledge that:
eK
(vii) the undersigned has received, read, understood, the Merchant
Agreement, which is incorporated herein by reference thereto, and
agrees on behalf of the merchant to be bound by the terms of such
Merchant Agreement.
Id. at 74 and Ex. A annexed there to at p.3 (emphasis added).
At the time Plaintiff received the Merchant Application, it also received the Merchant
Agreement, which is expressly referenced and incorporated by the terms of the Merchant
Application, and which Plaintiff acknowledged receiving, reading and understanding by
executing the Merchant Application. /d. at ¢ 5 and Ex. B annexed thereto. The process by which
a merchant, such as Plaintiff, enters into an agreement with CardWorks and Merrick Bank entails
the simultaneous delivery to each merchant with which Merrick and CardWorks are willing to do
business of both the Merchant Application and the Merchant Agreement. As noted, the two
documents reference each other and the Merchant Agreement is incorporated by the express
terms of the Merchant Application. Moreover, a copy of the Merchant Agreement is available
on CardWorks’ website. The Defendants are aware of no communication from Plaintiff stating
that it had not received the Merchant Agreement that it acknowledged receiving when it executed
the Merchant Application. /d. at § 5.
The Merchant Agreement makes several references to the Merchant Application. For
example, the Merchant Agreement provides that Partners In Safety “represents and covenants
2274810_4that (a) all information contained in the Merchant Application” is complete and accurate. Id. at §
6 and Ex. B annexed thereto at § 2.18 (emphasis added). The Merchant Agreement also provides
in pertinent part:
Choice of Law: Jurisdiction. Utah law (without regard to its choice of law
provisions) governs this Agreement. Any claim or cause of action arising out
of this Agreement against Bank must be initiated and maintained exclusively in
the state or federal courts located in Salt Lake County, Utah and [Partners In Safety]
waives any claim that such forum is an inconvenient forum.
Id, at 7 and Ex. B annexed thereto at § 5.14 (emphasis added). 3
Plaintiff's Complaint
Plaintiff commenced this action on or about June 30, 2015, alleging inter alia that the
Defendants breached their contractual obligations to Plaintiff under the parties’ written
agreement by providing services with respect to allegedly fraudulent credit card and debit card
transactions which resulted in approximately $25,000 in service fees (provided for in the
Merchant Agreement) being charged to the Plaintiff. Complaint, Ex. A to Gibson Aff. at 9.
While Defendants deny any liability to Plaintiff on the merits, this motion is addressed
solely to dismissing the complaint because Plaintiff has commenced the action in the wrong
forum. Despite the clear and unambiguous terms of the forum selection clause, which requires
that all disputes between the parties arising out of the agreement be litigated in the Federal or
State courts of Salt Lake County, Utah, Plaintiff has wrongfully commenced this action in the
Supreme Court of the State of New York.*
3 By its terms, the Merchant Agreement defines “Bank” as to include not only Merrick Bank, but
also its ISO, CardWorks. /d. at p. 1.
4 Because the negligence and conversion claims are based on the same facts as is the breach of contract
claim, they also are claims “arising out of” the agreement and are governed by the forum selection clause. See
Montoya v. Cousins Chanos Casino, LLC, 34 Misc. 1211(A), 943 N.Y.S.2d 793, 2012 WL 118475 (Sup. Ct., N.Y.
Co., Jan. 12, 2012) (“Because of the strong public policy favoring enforcement of forum selection clauses, courts
have construed these clauses broadly to encompass tort claims brought in relation to the contract and/or which arise
out of the business relationship. See also Freeford Ltd. v. Pendleton, 53 A.D.3d 32, 857 N.Y.S.2d 62 (1* Dep’t
2008).
2274810_4ARGUMENT
PLAINTIFF’S COMPLAINT MUST BE DISMISSED FOR INCORRECT VENUE
The New York Court of Appeals has held that forum selection clauses, such as the clause
contained within the Merchant Agreement, “[A]re enforced because they provide certainty and
predictability in the resolution of disputes.” See Boss v. American Express Fin. Advisors, Inc., 6
N.Y.3d 242, 247, 844 N.E.2d 1142, 1144, 811 N.Y.S.2d 620, 622 (2006), quoting Brooke Group
v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 640 N.Y.S.2d 479, 663 N.E.2d 635 (1996). Forum
selection clauses, such as the one contained in the Merchant Agreement, are also presumed
enforceable under the law of the State of Utah, which governs the Merchant Agreement. See
Coombs v. Juice Works Development Inc., 81 P.3d 769, 774, 486 Utah Adv. Rep 52 (Court of
Appeals 2003); Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Supreme Court of Utah
1993).
“A forum selection clause may, under certain circumstances, constitute documentary
evidence sufficient to provide a proper basis for dismissal of a complaint pursuant to CPLR
3211(a)(1), such as where the forum selection clause provides that any dispute arising under the
relevant agreement must be litigated in the courts of a state other than New York...” See
Lowenbraun v. McKeon, 98 A.D.3d 655, 950 N.Y.S.2d 381, 382 (2d Dep’t 2012) citing Boss v.
American Express Fin. Advisors, Inc., 6 N.Y.3d 242 (2006), Adier v. 20/20 Cos., 82 A.D.3d 918,
920, 919 N.Y.S.2d 39 (2d Dep’t 2011).
In Lowenbraun v. McKeon, the Second Department reversed the trial court’s dismissal of
plaintiffs complaint filed in Nassau County based on a forum selection clause, but only because
the subject clause in fact permitted actions to be filed in the State of New York, but only in
Queens County. As such, the Second Department held that, “Since the forum selection clause
2274810_4did not divest the Supreme Court of jurisdiction over the action...the Supreme Court should have
transferred venue from Nassau to Queens County.”
By contrast, the forum selection clause contained within the Merchant Agreement does
divest the Supreme Court of the State of New York of jurisdiction over this dispute, because it
unequivocally mandates exclusive jurisdiction in the federal and state courts in Salt Lake County,
Utah.
Moreover, where, as here, there is an express waiver of the claim that the selected forum
is inconvenient, such defense is unavailing. “[W]here a party to a contract has agreed in advance
of litigation to submit to the jurisdiction of a court, she is later precluded from attacking that
court’s jurisdiction on grounds of forum non conveniens.” National Union Fire Ins. Co. of
Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 232, 690 N.Y.S.2d 57, 60 (1 Dep’t 1999); citing
Arthur Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618 (1 Dep’t 1976). See also
Coombs v. Juice Works Development Inc. 81 P.3d 769, 486 Utah Adv. Rep 52 (Court of
Appeals 2003)
CONCLUSION
For the above reasons, it is respectfully submitted that Defendants’ motion to dismiss
should be granted in its entirety.
Dated: August 14, 2015
SATTERLEE STEPHENS BURKE
& BURKE LLP 2
- ey . 7
By: Daniel G. Gurfein
Michael H. Gibson
Attorneys for Defendants
230 Park Avenue, Suite 1130
New York, New York 10169
(212) 818-9200
2274810_4
Preview
(FILED: NASSAU COUNTY CLERK 08717/2015 12:41 PM INDEX NO. 604244/2015 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PARTNERS IN SAFETY INC., Plaintiff, : Index No.: 604244/2015 -against- : CARDWORKS ACQUIRING LLC and MERRICK BANK CORPORATION, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SATTERLEE STEPHENS BURKE & BURKE LLP 230 PARK AVENUE New York, NEw York 10169 PHONE: (212) 818-9200 FAX: (212) 818-9606 ATTORNEYS FOR DEFENDANTS CARDWORKS ACQUIRING LLC AND MERRICK BANK CORPORATION 2274810_4TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT .........ccccccescssssssesssessesesceseecsesssssesseesassnessesseestasssesseesecsacecenseaneesees 1 BACKGROUND .......sscscsesceecseesseesstessesssecsseesnesssesseesscesseesscesessucssneseeesassnesoessaessisesnssseesseesneseecsaneteete 2 The Merchant Application and Merchant Agreement .0..........0.ccessesssesscesseesseeseeeeatssnessnesseee 2 Plaintiff's Complaint... cccsseseetccsssssesessssecseenesesssssenssuesessesnsaessessesssenessesessesseeseeneenens 4 ARGUMENT ou... estes eecsecsscsseesssessessresseesseonneencenessesssessuesatsssessusssesseesesssssssuesnessesssnssesssaneseeeaness 5 PLAINTIFF’S COMPLAINT MUST BE DISMISSED FOR INCORRECT VENUE. ..........0:00++ 5 CONCLUSION. ......sccsccssesssesssessneessessuessensssecssssusesusessessssssssescssesssessnecsecsnsessesssssnessneensseassenstensesneesaesd 6 2274810_4TABLE OF AUTHORITIES Page(s) Cases Adler v. 20/20 Cos., 82 A.D.3d 918, 919 N.Y.S.2d 39 (2d Dep't 2011) ...sssecssessssecssssssessssersneenssnessnvecssueessnecnnseesee 5 Boss v. American Express Fin. Advisors, Inc., 6 N.Y.3d 242, 844 N.E.2d 1142, 811 N.Y.S.2d 620 (2006).......ccssescsesseesnescnseesteeatenneeeanenseennens 5 Coombs v. Juice Works Development Inc., 81 P.3d 769, 486 Utah Adv. Rep 52 (Court of Appeals 2003) .....ssescssecsssecnnecsnnessssesssnesrenee 5,6 Freeford Ltd. v. Pendleton, 53 A.D.3d 32, 857 N.Y.S.2d 62 (1st Dep’t 2008) .......secssesseessesseecsssseassenseneereneesnenneeesnenseesaessee 4 Lowenbraun v. McKeon, 98 A.D.3d 655, 950 N.Y.S.2d 381 (2d Dep’t 2012).. Montoya v. Cousins Chanos Casino, LLC, 34 Misc. 1211(A), 943 N.Y.S.2d 793, 2012 WL 118475 (Sup. Ct., N.Y. Co., Jan. 12, 2012).. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 690 N.Y.S.2d 57 (Ist Dep’t 1999) ...esssesssssccsessnecssnsessesssessessrorssesnsnsessseessneea 6 Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Supreme Court of Utah 1993) . Other Authorities CPLR § 321 1(a)(1) cscsssesssesssessessssssssseneessssseceneccnscsnesssessneesieensesrecnrsrasssessucssscenscsaecsnsesncesseenecnnennsnes 1,5 ii 2274810_4Defendants CardWorks Acquiring LLC (“CardWorks”) and Merrick Bank Corporation (“Merrick”) (collectively, “Defendants”), through their attorneys, Satterlee Stephens Burke & Burke LLP, respectfully submit the following memorandum of law in support of Defendants’ motion, pursuant to CPLR § 3211(a)(1), for an Order: (i) dismissing the Complaint of Plaintiff Partners In Safety Inc. (“Plaintiff” or “Partners in Safety”) in its entirety as a result of having been brought in an incorrect venue; (ii) awarding Defendants recovery of their costs associated with this action, including but not limited to reasonable attorneys’ fees; and (iii) awarding Defendants such further relief as the Court deems just and proper. PRELIMINARY STATEMENT This action arises out of Plaintiff's allegation that it was improperly charged approximately $25,000 in service fees by Defendants in violation of the parties’ written agreement." The contractual obligations allegedly breached are set forth in two (2) written agreements entered into by the parties: (i) the Merchant Application; and (ii) the Merchant Agreement. When it executed the Merchant Application, Plaintiff expressly acknowledged that it had received, read, understood and agreed to be bound by the terms of the Merchant Agreement, the terms of which are expressly incorporated into the Merchant Application. The Merchant Agreement provides that all disputes between the parties arising out of the agreement are subject to the exclusive jurisdiction of the State and Federal courts of Salt Lake County, Utah. Despite the clear, unambiguous and mandatory forum selection clause contained within the Merchant Agreement, which Plaintiff agreed to be bound by, Plaintiff has wrongfully 1 Plaintiff's Complaint also asserts negligence and conversion claims. As discussed below, these claims, like the contract claim, must be dismissed pursuant to the forum selection clause in the subject agreement. 1 22748104commenced this action in the Supreme Court of the State of New York. Plaintiff's Complaint must be dismissed.” BACKGROUND Defendants respectfully refer the Court to the accompanying Affidavit of Russell Berman, sworn to August 13, 2015, with exhibits annexed thereto (the “Berman Aff.”), and the accompanying Affidavit of Michael H. Gibson, sworn to August 14, 2015, with exhibits annexed thereto (the “Gibson Aff."). The Merchant Application and Merchant Agreement Defendant CardWorks is an independent sales organization (“ISO”) in the consumer credit industry. As such, it has entered a contractual relationship with Defendant Merrick (a member of the Visa, MasterCard and Discover transaction card associations) pursuant to which CardWorks, among other things, solicits merchants (such as Plaintiff Partners in Safety) for the provision of Merrick’s credit and debit card settlement services which permit the merchant to accept Visa, MasterCard and Discover transaction cards as a means of payment for goods and services. Upon the successful solicitation of a merchant, a three party agreement among Merrick, CardWorks and the merchant is executed, which agreement sets forth the rights and obligations of the parties. On or about June 12, 2013, the parties to this lawsuit executed such an agreement (the “Merchant Application”). Berman Aff. at 2 and Ex. A annexed thereto. Among the “Important Responsibilities” of the merchant (Plaintiff in this case) identified on the Merchant Application is, “Reviewing and understanding the Merchant Agreement.” Jd. at 4/3 and Ex. A annexed there to at p.1. The Merchant Application also provides in pertinent part: 2 The Merchant Agreement also includes damages limitations which cap Defendants’ liability. While not addressed in this motion to dismiss for incorrect venue, the liability cap defense, as well as all other defenses, are expressly reserved by the Defendants. 2274810_4MERCHANT APPLICATION AND AGREEMENT ACCEPTANCE: IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT By executing this Merchant Application on behalf of the merchant described above (“Merchant”), the undersigned individual(s) represent(s), warrant(s), and acknowledge that: eK (vii) the undersigned has received, read, understood, the Merchant Agreement, which is incorporated herein by reference thereto, and agrees on behalf of the merchant to be bound by the terms of such Merchant Agreement. Id. at 74 and Ex. A annexed there to at p.3 (emphasis added). At the time Plaintiff received the Merchant Application, it also received the Merchant Agreement, which is expressly referenced and incorporated by the terms of the Merchant Application, and which Plaintiff acknowledged receiving, reading and understanding by executing the Merchant Application. /d. at ¢ 5 and Ex. B annexed thereto. The process by which a merchant, such as Plaintiff, enters into an agreement with CardWorks and Merrick Bank entails the simultaneous delivery to each merchant with which Merrick and CardWorks are willing to do business of both the Merchant Application and the Merchant Agreement. As noted, the two documents reference each other and the Merchant Agreement is incorporated by the express terms of the Merchant Application. Moreover, a copy of the Merchant Agreement is available on CardWorks’ website. The Defendants are aware of no communication from Plaintiff stating that it had not received the Merchant Agreement that it acknowledged receiving when it executed the Merchant Application. /d. at § 5. The Merchant Agreement makes several references to the Merchant Application. For example, the Merchant Agreement provides that Partners In Safety “represents and covenants 2274810_4that (a) all information contained in the Merchant Application” is complete and accurate. Id. at § 6 and Ex. B annexed thereto at § 2.18 (emphasis added). The Merchant Agreement also provides in pertinent part: Choice of Law: Jurisdiction. Utah law (without regard to its choice of law provisions) governs this Agreement. Any claim or cause of action arising out of this Agreement against Bank must be initiated and maintained exclusively in the state or federal courts located in Salt Lake County, Utah and [Partners In Safety] waives any claim that such forum is an inconvenient forum. Id, at 7 and Ex. B annexed thereto at § 5.14 (emphasis added). 3 Plaintiff's Complaint Plaintiff commenced this action on or about June 30, 2015, alleging inter alia that the Defendants breached their contractual obligations to Plaintiff under the parties’ written agreement by providing services with respect to allegedly fraudulent credit card and debit card transactions which resulted in approximately $25,000 in service fees (provided for in the Merchant Agreement) being charged to the Plaintiff. Complaint, Ex. A to Gibson Aff. at 9. While Defendants deny any liability to Plaintiff on the merits, this motion is addressed solely to dismissing the complaint because Plaintiff has commenced the action in the wrong forum. Despite the clear and unambiguous terms of the forum selection clause, which requires that all disputes between the parties arising out of the agreement be litigated in the Federal or State courts of Salt Lake County, Utah, Plaintiff has wrongfully commenced this action in the Supreme Court of the State of New York.* 3 By its terms, the Merchant Agreement defines “Bank” as to include not only Merrick Bank, but also its ISO, CardWorks. /d. at p. 1. 4 Because the negligence and conversion claims are based on the same facts as is the breach of contract claim, they also are claims “arising out of” the agreement and are governed by the forum selection clause. See Montoya v. Cousins Chanos Casino, LLC, 34 Misc. 1211(A), 943 N.Y.S.2d 793, 2012 WL 118475 (Sup. Ct., N.Y. Co., Jan. 12, 2012) (“Because of the strong public policy favoring enforcement of forum selection clauses, courts have construed these clauses broadly to encompass tort claims brought in relation to the contract and/or which arise out of the business relationship. See also Freeford Ltd. v. Pendleton, 53 A.D.3d 32, 857 N.Y.S.2d 62 (1* Dep’t 2008). 2274810_4ARGUMENT PLAINTIFF’S COMPLAINT MUST BE DISMISSED FOR INCORRECT VENUE The New York Court of Appeals has held that forum selection clauses, such as the clause contained within the Merchant Agreement, “[A]re enforced because they provide certainty and predictability in the resolution of disputes.” See Boss v. American Express Fin. Advisors, Inc., 6 N.Y.3d 242, 247, 844 N.E.2d 1142, 1144, 811 N.Y.S.2d 620, 622 (2006), quoting Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 640 N.Y.S.2d 479, 663 N.E.2d 635 (1996). Forum selection clauses, such as the one contained in the Merchant Agreement, are also presumed enforceable under the law of the State of Utah, which governs the Merchant Agreement. See Coombs v. Juice Works Development Inc., 81 P.3d 769, 774, 486 Utah Adv. Rep 52 (Court of Appeals 2003); Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Supreme Court of Utah 1993). “A forum selection clause may, under certain circumstances, constitute documentary evidence sufficient to provide a proper basis for dismissal of a complaint pursuant to CPLR 3211(a)(1), such as where the forum selection clause provides that any dispute arising under the relevant agreement must be litigated in the courts of a state other than New York...” See Lowenbraun v. McKeon, 98 A.D.3d 655, 950 N.Y.S.2d 381, 382 (2d Dep’t 2012) citing Boss v. American Express Fin. Advisors, Inc., 6 N.Y.3d 242 (2006), Adier v. 20/20 Cos., 82 A.D.3d 918, 920, 919 N.Y.S.2d 39 (2d Dep’t 2011). In Lowenbraun v. McKeon, the Second Department reversed the trial court’s dismissal of plaintiffs complaint filed in Nassau County based on a forum selection clause, but only because the subject clause in fact permitted actions to be filed in the State of New York, but only in Queens County. As such, the Second Department held that, “Since the forum selection clause 2274810_4did not divest the Supreme Court of jurisdiction over the action...the Supreme Court should have transferred venue from Nassau to Queens County.” By contrast, the forum selection clause contained within the Merchant Agreement does divest the Supreme Court of the State of New York of jurisdiction over this dispute, because it unequivocally mandates exclusive jurisdiction in the federal and state courts in Salt Lake County, Utah. Moreover, where, as here, there is an express waiver of the claim that the selected forum is inconvenient, such defense is unavailing. “[W]here a party to a contract has agreed in advance of litigation to submit to the jurisdiction of a court, she is later precluded from attacking that court’s jurisdiction on grounds of forum non conveniens.” National Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 232, 690 N.Y.S.2d 57, 60 (1 Dep’t 1999); citing Arthur Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618 (1 Dep’t 1976). See also Coombs v. Juice Works Development Inc. 81 P.3d 769, 486 Utah Adv. Rep 52 (Court of Appeals 2003) CONCLUSION For the above reasons, it is respectfully submitted that Defendants’ motion to dismiss should be granted in its entirety. Dated: August 14, 2015 SATTERLEE STEPHENS BURKE & BURKE LLP 2 - ey . 7 By: Daniel G. Gurfein Michael H. Gibson Attorneys for Defendants 230 Park Avenue, Suite 1130 New York, New York 10169 (212) 818-9200 2274810_4