United States District Court, E.D. Missouri, Eastern Division
KENDAN ELLIOTT, individually, and as next friend of S. J. E., a minor, Plaintiff,
MANHATTAN CRYOBANK, INC., LIFEPRINT GROUP, INC., CN GENETIC PARTNERS LLC, and CCB-MCB, LLC, Defendants.
MEMORANDUM & ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' collective
motion to transfer venue pursuant to 28 U.S.C. §
1404(a). (Doc. No. 19). Plaintiff opposes the motion. (Doc.
No. 23). Defendants filed a reply (Doc. No. 24), and
Plaintiff filed a sur-reply (Doc. No. 34). For the reasons
set forth below, the motion will be granted.
lawsuit arises out of a transaction in which Plaintiff and
his domestic partner entered into an Agreement for Purchase
of Donor Sperm (“the Agreement”) with Defendant
Manhattan Cryobank, Inc. Among other provisions, the
Agreement includes an acknowledgement that Manhattan Cryobank
had performed a complete and thorough screening of its sperm
donors for inheritable birth defects and diseases. The
Agreement also contains the following paragraph, which the
parties agree acts as a forum selection clause:
26. Arbitration: All claims and disputes
between or among the parties relating in any way to this
agreement or its negotiable performance, interpretation,
validity or breach, or to any other rights, duties whether or
not arising under this agreement, shall be settled by final
and binding arbitration in accordance with the then current
Commercial Arbitration Rules of JAMS. Demand for arbitration
shall be made within six (6) months after the dispute in
question has arisen or be forever barred. The arbitration
shall take place in New York, NY, before a single neutral
arbitrator from the JAMS panel. Judgment on the award
rendered by the arbitrator may be entered in any court in the
City and County of New York. This Agreement shall be
interpreted in accordance with New York law, excluding
conflict of law principles.
Doc. No. 19-1 at ¶ 26.
Plaintiff's partner was inseminated with sperm from
“Donor 184” that was purchased from Manhattan
Cryobank. On November 27, 2015, Plaintiff's partner gave
birth to S. J. E., who was diagnosed with alpha thalassemia,
a rare blood disorder. Plaintiff alleges in the amended
complaint that Manhattan Cryobank had represented to
Plaintiff that it had screened its sperm donors for genetic
defects, including alpha thalassemia, and that Donor 184 did
not carry the trait. Plaintiff claims the representation was
false, since S. J. E. was born with alpha thalassemia, a
genetic trait that is only passed along to the child if both
the mother and father possess the trait.
February 7, 2019, Plaintiff filed this lawsuit against
Defendants, and his amended complaint asserts the following
claims individually and as next friend of S. J. E.: (1)
products liability; (2) fraudulent inducement; (3) violation
of the Missouri Merchandising Practices Act; (4) negligent
misrepresentation; (5) fraud; and (6) successor liability.
Plaintiff seeks compensatory damages totaling $3, 635, 554
for the future medical care costs required to treat S. J.
E.'s disease, as well as punitive damages and
attorney's fees. Doc. No. 11.
February 13, 2019, Defendants filed a motion to transfer
venue pursuant to the Agreement's forum selection clause.
Plaintiff opposes the motion, arguing that he was
fraudulently induced into the Agreement, that the Agreement
was not the fruit of an arm's length negotiation, and
that enforcement of the Agreement would be unreasonable and
unjust. He further argues that S. J. E. was not a party to
the Agreement, and thus cannot be bound by the
Agreement's forum selection clause. Lastly, Plaintiff
maintains that public interest factors weigh against
Validity of the Forum Selection Clause
federal law,  “[f]orum selection clauses are prima
facie valid and are enforced unless they are unjust or
unreasonable or invalid for reasons such as fraud or
overreaching.” M.B. Rests., Inc. v. CKE Rests.,
Inc., 183 F.3d 750, 752 (8th Cir. 1999) (citing M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
Plaintiff argues that the forum selection clause in the
Agreement is invalid because he entered into the Agreement as
a result of fraudulent misrepresentations, and enforcement of
the clause would be unreasonable and unjust.
“forum-selection clause in a contract is not
enforceable if the inclusion of that clause in the contract
was the product of fraud or coercion.” Scherk v.
Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974).
However, general allegations of fraud in the inducement are
insufficient to raise an issue that the forum-selection
clause may be unenforceable because of fraud. Marano
Enters. of Kansas v. Z-Teca Rests., L.P., 254 F.3d 753,
757 (8th Cir. 2001). In Marano Enterprises, the
plaintiff made allegations in its complaint that it was
induced by fraud to enter into contracts containing forum
selection clauses. Id. Finding that there was no
suggestion in the complaint or briefs that the forum
selection clauses “were inserted into the agreements as
a result of fraud, ” the Eighth Circuit flatly rejected
the plaintiff's argument that it could avoid the forum
selection clause because it asserted there was fraudulent
Plaintiff does not allege in his amended complaint that the
forum selection clause in the Agreement was obtained through
fraud. Instead, he alleges that he entered into the Agreement
based on Manhattan Cryobank's false representations
regarding its performance of a complete and thorough
screening for inheritable birth defects in the semen of its
donors. Plaintiff makes detailed allegations about what the
alleged misrepresentations were, but there are no allegations
in the amended complaint concerning a forum selection clause.
In other words, there is nothing to indicate that the
inclusion of the forum selection clause was the product of