United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Cheryl R. Zwart United States Magistrate Judge
This matter is before the court on Defendant Barksdale, Inc.’s motion to transfer venue from this court to the United States District Court for the Central District of California or, alternatively, the Southern District of New York. (Filing No. 15). For the reasons set forth below, the motion will be denied.
Plaintiff’s complaint alleges six claims for relief, including a breach of contract action against Defendant Barksdale Company, Inc. (“Barksdale”). (Filing No. 1). Plaintiff Reinke Manufacturing Company, Inc. (“Reinke”) is a Nebraska corporation with its principal place of business in Deshler, Nebraska. Barksdale is a corporation with its primary place of business in Los Angeles, California. Barksdale manufactures control switches used in industrial applications. These switches are sold by Barksdale to authorized suppliers, including Gexpro, who then sells them to a buyer.
In February of 2011, Daniel Bilka, a Gexpro employee and sales representative for Reinke, sent an email to a sales manager at Barksdale requesting information regarding Barksdale’s returns, credits, and warranty policies. Barksdale responded and attached a copy of Barksdale’s General Sales Policy (the “Policy”). The Policy discusses Barksdale’s returns and credits, but it does not discuss warranties. Instead, at the bottom of the Policy it states: “In addition to [the Policy], all orders are subject to the Standard Conditions of Sale.” (Filing No. 19-1 at CM/ECF p. 9). The Standard Conditions of Sale (“Barksdale Conditions”) include Barksdale’s warranty policy and a forum-selection clause which states, “[a]ny disputes arising between the parties as to any aspect of this transaction shall be filed in a court of competent jurisdiction in Los Angeles, California and shall be governed by California law (except that any conflict of laws provision therein shall not be applicable).” (Filing No. 19-1 at CM/ECF p. 11). A copy of the Barksdale Conditions was not attached in the email response.
From February 18, 2011 to October 18, 2012, Gexpro placed orders for switches to Barksdale. When making purchases, Gexpro utilized purchase orders which incorporated Gexpro’s Terms & Conditions of Purchase (“Purchase Terms”). Gexpro’s Purchase Terms include a merger clause which provides:
This document contains the complete and exclusive statement of terms of the agreement between [Gexpro] and [Barksdale]. . . . If [Barksdale] accepts this Purchase Order (“Order”) or provides any items listed in the Order, [Barksdale] is deemed to have agreed to these conditions. Any additional or different terms will not be part of the Order unless acknowledged in writing and signed by an authorized representative of [Gexpro].
(Filing No. 28-2 at CM/ECF p. 4). The Purchase Terms also contained a clause regarding warranties, stating:
Seller warrants that the products are new and covered by the manufacturer’s warranty, which will be extended to [Gexpro] and/or the Buyer’s customer. Seller also warrants that the products and services sold will be free from defects in material, workmanship, and title and will conform to the requirements of this Order for a period of at least twelve (12) months from the date of shipment . . . .
(Filing No. 28-2 at CM/ECF p. 4). The Purchase Terms did not contain a forum selection clause. Barksdale claims Gexpro did not include its Purchase Terms in “many” of its orders including Gexpro’s initial orders placed with Barksdale.
Barksdale acknowledged each of Gexpros’s orders by fax or email with an order acknowledgment form attached. Barksdale’s order acknowledgment form stated orders were subject to the Barksdale Conditions. (Filing No. 19-1 ¶ 11 at CM/ECF p. 3).
Barksdale shipped the ordered switches to Gexpro in Nebraska. After receiving the switches, Gexpro sold them to Reinke. In its sale documents to Reinke, Gexpro included its Seller’s Terms and Conditions of Sale (“Seller Terms”). Among the Seller Terms was an assignment to Reinke of all warranties and remedies provided to Gexpro by Barksdale. Gexpro did not provide independent product warranties to Reinke.
Reinke incorporated the Barksdale switches into Reinke’s irrigation systems. Reinke then sold the systems to dealers worldwide. Approximately 5, 831 systems with Barksdale switches were installed in the United States, and 514 were installed outside of the United States.
On September 24, 2012, Barksdale sent to Gexpro and Gexpro forwarded to Reinke an “Interim Corrective Action Report, ” stating Barksdale was investigating the switches because of cracks along the rim of a plastic knob on the switches. In December of 2012, Barksdale issued an Important Product Notification, warning that the cracks in the switches could expose the operator to full line voltage and electrical shock, possibly resulting in serious injury or death. Barksdale required the users to return any defective controls. Barksdale representative Jeremy Smith travelled to Reinke’s ...