06/24/2008 11 RESPONSE to re 5 , 10 , 9 Sur-Response in Opposition to Motion For Change of Venue filed by Burr & Forman, LLP. (Nesmith, Kip) (Entered: 06/24/2008)
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Doc 11
Extract
PLAINTIFF'S SUR-RESPONSE IN OPPOSITION TO MOTION FOR CHANGE OF VENUE
Plaintiff, Burr & Forman LLP ("Burr & Forman" or "Plaintiff"), hereby submits this sur-response in opposition to the motion of defendants Perihelion Global, Inc. ("Perihelion") and John Beebe (collectively, "Defendants") to transfer this action to the United States District Court for the Northern District of Florida.
In further support of its opposition to Defendants' motion to transfer, Plaintiff states as follows:
1. Defendants' Response to Plaintiff's Opposition to Motion for Change of Venue (hereinafter, "Defendants' Response") argues that venue is improper in this Court because "[t]he Defendants have no physical connection whatsoever with the Northern District of Alabama." Defendants' Response, p. 3. However, the Agreement to Pay Amounts Due as Invoiced "Agreement", attached to Plaintiff's Opposition to Motion for Change of Venue as Ex. 2), which was executed by Defendants and subsequently breached by them and which gives rise to Count II of the Complaint, contains a forum selection clause which clearly and unambiguously states:
FORUM. [Defendants] agree that the exclusive forum for any litigation stemming from this Agreement shall be the state and federal courts in Jefferson County, Alabama. [Defendants] irrevocably submit themselves to the jurisdiction of these courts, and expressly waive any objections whatsoever to venue in these courts. Agreement, ¶ 6.
2. Forum selection clauses in contracts are enforceable in federal courts.
P&S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003). Defendants' agreement to waive any objections to venue in this Court provides yet another basis to deny their motion for change of venue.
3. Burr & Forman hereby adopts and incorporates all of the previous arguments set forth in its Opposition to Motion for Change of Venue.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Burr & Forman LLP respectfully requests that this Court deny Defendants' Motion for Change of Venue.
Dated this 24th day of June, 2008.
Respectfully submitted,
/s/ Kip A. Nesmith ______
Victor L. Hayslip, Esq. (HAY019)
Kip A. Nesmith, Esq. (NES007)
Attorneys for Burr & Forman, LLP
OF COUNSEL:
BURR & FORMAN LLP
3400 Wachovia Tower
420 North Twentieth Street
Birmingham, Alabama 35203
Telephone: (205) 251-3000
Facsimile: (205) 458-5100
vhayslip@burr.com
knesmith@burr.com |
