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Robson v. Duckpond Ltd.

United States District Court, E.D. Missouri, Eastern Division

October 21, 2019

MICHAEL T. ROBSON, as Trustee of THE MICHAEL T. ROBSON REVOCABLE TRUST, Plaintiff,
v.
DUCKPOND LTD., et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants Duckpond Ltd., Tharros Emporium Ltd., and ICC Global Investments Ltd.'s motion to dismiss for improper venue pursuant to the doctrine of forum non conveniens. Plaintiff Michael T. Robson as Trustee of the Michael T. Robson Revocable Trust (“plaintiff”) opposes the motion. For the following reasons, the Court will deny the motion.

         I. Background

         Plaintiff is a citizen of the City of St. Louis, State of Missouri. Defendants Duckpond Ltd. (“Duckpond”) and Tharros Emporium Ltd. (“Tharros”) are corporations organized in the Republic of Cyprus (“Cyprus”). Defendant ICC Global Investments Ltd. is a corporation organized in Anguilla.

         Plaintiff alleges the parties to this action executed a Promissory Note (the “Note”), in which the terms “required [Duckpond] to pay to the order of the Robson Trust the principal sum of Three Million One Hundred Seventy Thousand U.S. Dollars and Zero Cents ($3, 170, 000.00), and to pay interest thereon from June 8, 2017, to maturity[.]" Compl. 12. This amount was to be satisfied by Duckpond by making monthly payments beginning on June 12, 2017 and ending on May 12, 2022. Id. Plaintiff alleges Duckpond failed to make payments on April 12, 2019, May 12, 2019, and June 12, 2019, causing the Robson Trust to exercise its option under the Note to declare all unpaid principal and accrued interest due immediately. Id ¶¶ 13-19. Plaintiff claims Duckpond is in default and breach of the Note due to its failure to submit payment in full to the Robson Trust. Id. 20.

         A copy of the Note is attached to plaintiffs complaint. The Note contains a forum selection clause, which provides in relevant part:

This Note will be governed by and construed pursuant to the laws of the State of Missouri, United States of America . . . . Each of the parties hereto irrevocably submits to the exclusive jurisdiction of (a) the Circuit Court of St. Louis County, Missouri, USA and (b) the United States District Court for the Eastern District of Missouri, Eastern Division, for the purposes of any suit, action or other proceeding related hereto exclusively in the United States District Court for the Eastern District of Missouri, Eastern Division, or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Circuit Court of St. Louis County, Missouri, USA. Each of the parties waives any objection to jurisdiction or the laying of venue of any action, suit or proceeding arising out of this Note in (i) the Circuit Court of St. Louis County, Missouri, USA or (ii) the United States District Court for the Eastern District of Missouri, Eastern Division, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum[.]

Doc. 1-1 at 2.

         Despite this language in the Note, defendants seek to have this case dismissed so it may be litigated in the Republic of Cyprus. Defendants state the Note was entered into as a result of a Purchase Agreement, in which defendants ICC Global and Tharros agreed to purchase all the shares plaintiff owns in Duckpond, and which contains a forum selection clause. The forum selection clause in the Purchase Agreement provides in relevant part:

This Agreement is governed by and shall be construed in accordance with Cyprus law and the competent courts of Cyprus shall have exclusive jurisdiction to hear and determine all claims, disputes and questions between/among the parties hereto as well as any suit, action or proceeding arising from or in connection with this Agreement and each party to this Agreement irrevocably submits to the jurisdiction of such courts.

Doc. 12-2 at 8. Defendants argue the Note merely memorializes the amount of the payment obligation required by the Purchase Agreement and despite the competing forum selection clauses, the forum selected in the Purchase Agreement should apply.

         Defendants further argue that even though plaintiff did not reference the Purchase Agreement in his complaint, this lawsuit arises from the Purchase Agreement because it is “really a dispute about whether the payment obligation called for by the Purchase Agreement, and expressed only incidentally in the Note, was ever even owed.” Doc. 12 at 11. Defendants contend this is not a narrow dispute concerning payments under the Note because defendants intend to bring a counterclaim alleging that the entire transaction was fraudulently induced by plaintiff. Specifically, defendants argue “the dispute over the Note is also about [p]laintiff's unlawful conduct in connection with his unilateral determination of the ‘Purchase Price' for his sale of shares, on which ICC Global and Tharros relied (mistakenly) in agreeing to pay $3.1 million for the share purchase.” Doc. 12. Thus, defendants argue that the Purchase Agreement is integral to defendants' anticipated defenses and counterclaims and to the merits of plaintiff's claims in the complaint, requiring the forum selection clause of the Purchase Agreement to trump the forum selection clause of the Note.

         Plaintiff opposes defendants' effort to enforce the forum selection clause in the Purchase Agreement, arguing that he has pleaded nothing in his complaint to bring the Purchase Agreement into this lawsuit, that this is a simple breach of promissory note case, and defendants' allegations regarding fraudulent inducement are beyond the scope of the pleadings and should not be considered in the Court's venue analysis.

         II. ...


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