David A. Anderson, Esq. Nicholas F. Casolaro, Esq. Scott H. Harris, Esq. Michele E. Kenney, Esq.
Landya McCafferty United States Magistrate Judge
In an action that has been removed from the New Hampshire Superior Court, Summa Humma Enterprises, LLC (“MB Tractor”), a dealer in various kinds of equipment, has sued snowplow manufacturer Fisher Engineering (“Fisher”) for ending the business relationship under which MB Tractor purchased snowplows and other equipment from Fisher for resale. Specifically, MB Tractor petitions for a declaratory judgment that reinstates the agreement under which it purchased equipment from Fisher (Count I), and it also asserts claims for damages under three New Hampshire statutes (Counts II, III, and IV). Before the court is Fisher’s motion to dismiss, based upon a forum-selection clause in one of the two documents that memorialize its agreement with MB Tractor. MB Tractor objects. For the reasons that follow, Fisher’s motion to dismiss is granted.
The Legal Standard
In this circuit, “a motion to dismiss based on a forum selection clause [is treated] as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6).” Rivera v. Centro Médico de Turabo,
Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing Silva v. Encyclopedia
Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir. 2001)). Accordingly, this court “must ‘accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff’s favor.’”
Rivera, 575 F.3d at 15 (quoting LaChapelle v. Berkshire Life Ins. Co.,
142 F.3d 507, 508 (1st Cir. 1998)). In addition, “[u]nder Rule 12(b)(6), the . . . court may properly consider . . . facts and documents that are part of or incorporated into the complaint.”
Rivera, 575 F.3d at 15 (quoting Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)).
For just under four years, MB Tractor purchased snowplows and other equipment from Fisher for resale. The business relationship between MB Tractor and Fisher was governed by two documents. The first, captioned “Purchase & Security Agreement for Snowplow Units, Accessories and Equipment, ” is referred to in this order as the “P&S Agreement.” The second, captioned “Fisher Engineering Terms of Sale, ” is referred to as the “Terms of Sale.” Because both documents were incorporated into MB Tractor’s petition in the superior court, this court may properly consider them when ruling on Fisher’s motion to dismiss. See
Rivera, 575 F.3d at 15.
The P&S Agreement includes the following relevant provisions:
1. PURCHASE: The undersigned (“Buyer”) desires to purchase, from time to time, products manufactured by Fisher Engineering (“Fisher”) including snowplows and snowplow accessories, attachments, replacement parts, and such other products as may be desired by Buyer.
Fisher shall sell the products to Buyer and Buyer shall purchase the products from Fisher in accordance with the terms and conditions set forth herein. Unless otherwise expressly agreed in writing by Fisher, all purchases of products from Fisher by Buyer shall be according to the terms and provisions of this Agreement and Fisher’s Distributor Sales Policy and Terms and Conditions (as may be in effect from time to time) (the “Business Terms and Conditions.” . . . In the event of any inconsistency between the terms and conditions set forth in this Agreement and the Business Terms and Conditions, the provisions of this Agreement shall control.
14. GOVERNING LAW/FORUM: All of the aspects of this transaction shall be governed by the laws of the State of Maine. This Agreement shall be considered to have been executed in the State of Maine. Buyer consents to personal jurisdiction in the State of Maine, and voluntarily submits to the jurisdiction of the courts of Maine in any action or proceeding relating to or in connection with this Agreement.
15. ENTIRE AGREEMENT: This Agreement and the Business Terms and Conditions set forth the terms of the entire contract of sale and purchase of the products described herein.
Notice of Removal, Ex. A (doc. no. 1-1), at 13, 17-18.
The Terms of Sale, in turn, include the following relevant provisions:
You may resell and distribute those Products authorized by us from time to time, and we reserve the right to discontinue, withdraw or limit the sale of any and all Products, and to change the design and specifications of the products.
Although Fisher Engineering uses care in selecting its authorized outlets, you agree that your approval as an authorized outlet in no way constitutes the grant of a franchise or other exclusive or special right to purchase or sell Fisher Engineering’s Products. There is no franchise fee or other charge to you, other than the costs of goods sold to you. We reserve the right to sell to others and to decline to sell to you for any reason or no reason, in our sole discretion, at any time.
Unless you have executed a written agreement with Fisher Engineering accepting terms and conditions other than those set forth in these Terms and Conditions of Sale, in which case such agreement shall supersede these Terms and Conditions of Sale, these Terms and Conditions of Sale constitute the entire agreement between you and Fisher Engineering with respect to the subject matter hereof, superseding all prior written and oral agreements, understandings and undertakings. . . . You hereby irrevocably consent and submit to the exclusive jurisdiction of the state and federal courts located in the State of Maine for the resolution of any dispute concerning any Products or these Terms and Conditions of Sale. Nothing herein shall be deemed to create a relationship other than at will which may be terminated by us or you upon the giving of notice to the other.
Notice of Removal, Ex. A (doc. no. 1-1), at 21-23.
Neither the P&S Agreement nor the Terms of Sale bears a date, and the copy of the P&S Agreement attached to MB Tractor’s petition is only partially executed. Even so, there is no dispute over the authenticity of those two documents, and the parties appear to agree that both were in effect at all times relevant to this matter.
In the fall of 2011, MB Tractor began promoting and selling, in addition to Fisher products, a line of snowplows and snowplow equipment manufactured by BOSS, one of Fisher’s competitors. On May 10, 2012, Fisher notified MB Tractor, by letter, of its intention to terminate its relationship with MB Tractor, effective September 10, 2012. “According to the letter, Fisher’s primary reason for termination was its belief that MB Tractor was not fully committed to the promotion and sale of Fisher Products.” Notice of Removal, Ex. A, Super. Ct. Pet. (doc. no. 1-1), at 5. “Fisher’s termination letter also cited MB Tractor’s allegedly unfavorable approach to conducting business with Fisher as a reason for terminating the Agreement.” Id. at 6. This action followed.
In Count I, MB Tractor asserts that it “is entitled to a declaration pursuant to RSA 491:22 adjudicating and decreeing its rights under the [P&S] Agreement, and declaring that the [P&S] Agreement should be reinstated and enforceable between the parties.” Notice of Removal, Ex. A, Super. Ct. Pet. (doc. no. 1-1), at 7. MB Tractor also seeks relief for alleged violations of New Hampshire’s: (1) Equipment Dealership Act, N.H. Rev. Stat. Ann. (“RSA”) ch. ...