United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are Defendant Totran Transportation
Services, Inc.'s ("Totran") Motion to Dismiss
(Doc. 8) pursuant to Federal Rule of Civil Procedure 12(b)(2)
and Memorandum in Support (Doc. 9), BNSF Logistics, LLC's
("BNSF") Response in Opposition (Doc. 24), and
Totran's Reply (Doc. 30). For the reasons set forth
below, the Motion is DENIED.
BNSF is a limited liability company organized in Delaware and
maintains an office in Springdale, Arkansas. Defendant
Totran, a heavy-haul specialized motor carrier, is a Texas
corporation headquartered in Conroe, Texas. On May 12, 2009,
BNSF and Totran entered into a Broker/Carrier Agreement
("2009 Agreement") (Doc. 24-1) that stated that
BNSF, as broker, was authorized by its customers to negotiate
and arrange for the transportation of customer shipments in
interstate commerce, and that Totran, as carrier, agreed to
transport these shipments. Paragraph 8 of the Agreement
contained a forum-selection and choice-of-law clause that
read: "Arkansas law, venue and jurisdiction shall
apply." Id. at 2.
appears that over the next nine years, the parties continued
their broker/carrier relationship without major incident.
Then, on June 29, 2018, they entered into a Scope of Work
Agreement ("SOW") (Doc. 24-2) in which Totran
agreed to transport wind turbine equipment from Wellington,
Kansas, to sites in and around Tampa, Kansas. In exchange,
BNSF agreed to pay Totran for its transportation services.
The first paragraph of the SOW specifically referenced the
parties' 2009 Agreement and clarified that the terms and
conditions of the SOW would only prevail over those in the
Agreement if there were an "inconsistency or conflict
between such documents." Id. at 1. Otherwise,
the terms of the Agreement would apply.
to the Amended Complaint (Doc. 4), from approximately June
2018 to November 2018, Totran transported turbine equipment
pursuant to the SOW. But shortly after that, a dispute arose
between the parties regarding the amount Totran believed it
was owed under the SOW. The Complaint alleges that in
February of 2019, Totran filed a notice of intent to file a
mechanic's lien in state court in Kansas. Totran then
served the notice on BNSF's customer, who was the lessee
of the property that was subject to the lien. When BNSF found
out what Totran had done, it asked Totran to withdraw the
lien, and Totran refused. This lawsuit-in which BNSF asserts
claims against Totran for breach of contract,
defamation/slander, and tortious interference- resulted.
motion to dismiss now before the Court asserts that the
forum-selection clause in the parties' 2009 Agreement is
insufficient, in and of itself, to establish personal
jurisdiction over Totran, and that BNSF must also establish
Totran's minimum contacts with the forum. In the
alternative, Totran argues that the forum-selection clause in
the Agreement-if sufficient to confer personal
jurisdiction-is merely permissive in nature, rather than
exclusive, and that Arkansas is not the only place where suit
may be brought. In response, BNSF points out that Totran
consented to personal jurisdiction in Arkansas when Totran
agreed to the forum-selection clause in the 2009 Agreement.
Below, the Court will consider the parties' arguments.
allege personal jurisdiction, a 'plaintiff must state
sufficient facts in the complaint to support a reasonable
inference that the defendant can be subjected to jurisdiction
within the state.'" Wells Dairy, Inc. v. Food
Movers Int'l, 607 F.3d 515, 518 (8th Cir. 2010)
(quoting Dever v. Hentzen Coatings, Inc., 380 F.3d
1070, 1072 (8th Cir. 2004)) (alteration omitted). "[I]n
considering a motion to dismiss, the district court may
sometimes consider materials outside the pleadings, such as
materials that are necessarily embraced by the pleadings and
exhibits attached to the complaint." Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 698 n.4 (8th Cir. 2003).
The Court "must view the evidence in the light most
favorable to the plaintiff and resolve all factual conflicts
in the plaintiffs favor." Digi-Tel Holdings, Inc. v.
Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir.
Arkansas long-arm statute authorizes the exercise of personal
jurisdiction to the maximum extent permitted by the Due
Process Clause of the Fourteenth Amendment. Ark. Code Ann.
§ 16-4-101(B); see also Epps v. Stewart Info. Serv.
Corp., 327 F.3d 642, 647 (8th Cir. 2003). "An
individual who subjects himself to the personal jurisdiction
of a court by express agreement shall be bound by that
contract, if the agreement can be determined to be fair and
reasonable." Servewell Plumbing, LLC v. Summit
Contrs., Inc., 362 Ark. 598, 606 (2005). "Forum
selection clauses are prima facie valid and are enforced
unless they are unjust or unreasonable or invalid for reasons
such as fraud or overreaching. They are enforceable unless
they would actually deprive the opposing party of his fair
day in court." MB. Rests., Inc. v. CKE Rests.,
Inc., 183 F.3d 750, 752 (8th Cir. 1999) (internal
Personal Jurisdiction over Totran
a citizen of Texas, believes the Court cannot exert personal
jurisdiction over it because the company lacks minimum
contacts with Arkansas. Totran concedes, however, that it
entered into an Agreement in 2009 with BNSF, a company that
maintains an office in Springdale, Arkansas, and that it
maintained a contractual relationship with BNSF, governed by
the terms of that 2009 Agreement, for the next approximately
previously explained, Arkansas' long-arm statute allows
the exercise of personal jurisdiction over a nonresident
defendant, provided that such exercise does not offend the
Due Process clause of the Fourteenth Amendment of the United
States Constitution. Ark. Code Ann. § 16-4-101(B). The
Eighth Circuit has clearly held that "[d]ue process is
satisfied when a defendant consents to personal jurisdiction
by entering into a contract that contains a valid forum
selection clause." Dominium Austin Partners, LLC. v.
Emerson,248 F.3d 720, 726 (8th Cir. 2001). Further, the
Supreme Court of the United States has ruled that
"[w]here such forum-selection provisions have been
obtained through 'freely negotiated' agreements and
are not 'unreasonable and unjust,' their enforcement
does not offend due process." See Burger King Corp.
v. Rudzewicz,471 U.S. 462, 473 n.14, (1985). Thus, ...