AMERICORP FINANCIAL LLC V OATTS DRUG COMPANYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
AMERICORP FINANCIAL, L.L.C., d/b/a
August 31, 2010
Oakland Circuit Court
LC No. 2008-090635-CZ
OATTS DRUG COMPANY and MARK C.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
In this breach of contract action, plaintiff Americorp Financial, L.L.C. (Americorp)
appeals as of right a circuit court order dismissing the case based on forum non conveniens. We
reverse and remand for further proceedings, and decide this appeal without oral argument
pursuant to MCR 7.214(E).
In July 2007, plaintiff and defendant Oatts Drug Company (Oatts) entered into an
equipment lease agreement concerning a pharmaceutical dispensing system. Defendant Mark C.
Cooper, who owns Oatts, personally guaranteed the lease payments. Americorp is a Michigan
corporation, while defendants are located in Georgia. The “Law” paragraph of the lease reads as
THIS AGREEMENT SHALL BE CONSTRUED, GOVERNED,
INTERPRETED, AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF MICHIGAN . . . AND SHALL BE DEEMED TO BE
FULLY AND SOLELY EXECUTED, PERFORMED, AND/OR OBSERVED IN
THE STATE OF MICHIGAN . . . . THE PARTIES HERETO EXPRESSLY
CONSENT TO PERSONAL JURISDICTION OF THE STATE OF MICHIGAN
OR IF THIS AGREEMENT IS ASSIGNED, WHERE THE ASSIGNEES
CORPORATE HEADQUARTERS IS LOCATED AND LESSEE HEREBY
CONSENTS TO PERSONAL JURISDICTION AND VENUE IN THAT
COURT AND WAIVES ANY RIGHT TO TRANSFER VENUE IN ANY
ACTION OR PROCEEDING BROUGHT IN ANY COURT THEREIN, STATE
OR FEDERAL, ARISING FROM OR ALLEGING FACTS ARISING FROM
THE TRANSACTIONS CONTEMPLATED HEREIN, AND LESSEE AND
ANY GUARANTOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING
The parties agree that this paragraph constitutes a forum selection clause governed by MCL
In April 2008, Americorp sued defendants in the Oakland Circuit Court, alleging breach
of contract and seeking recovery under the Cooper’s personal guaranty. Defendants moved for
summary disposition pursuant to MCR 2.116(C)(7), or, “in the alternative,” sought dismissal
“under the doctrine of forum non-conveniens.” Defendants averred that MCL 440.1105 of
Michigan’s Uniform Commercial Code precluded Michigan jurisdiction of the controversy, and
that under MCL 600.745(2)(b) Michigan did not qualify as “a reasonably convenient place for
the trial of the action.”
In a bench opinion, the circuit court denied defendants’ motion for summary disposition
under MCR 2.116(C)(7) on the ground that “the parties consented to personal jurisdiction in
Michigan.” However, the circuit court found dismissal of the case appropriate “based on forum
non conveniens” grounds; the court reasoned as follows:
. . . [T]he connection between the dispute and the state of Michigan is
insufficient. While the witness may be located in Michigan, there’s not a matter
of public interest that weighs in favor of the Court retaining it.
Further, should plaintiff be successful and obtain a judgment, the
collection efforts would be all undertaken in Georgia. So it’s granted.
The circuit court subsequently denied Americorp’s motion for reconsideration.
This Court reviews for an abuse of discretion a circuit court’s decision whether Michigan
is a “reasonably convenient” place for trial under MCL 600.745(2)(b). Lease Acceptance Corp v
Adams, 272 Mich App 209, 223; 724 NW2d 724 (2006). An abuse of discretion occurs when a
circuit court chooses a result that falls outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). If a circuit court’s
decision regarding MCL 600.745(2)(b) falls within the principled range of outcomes, we must
affirm the ruling. Lease Acceptance Corp, 272 Mich App at 223.
Our Legislature set forth in MCL 600.745(2) the following:
If the parties agreed in writing that an action on a controversy may be
brought in this state and the agreement provides the only basis for the exercise of
jurisdiction, a court of this state shall entertain the action if all the following
The court has power under the law of this state to entertain the
This state is a reasonably convenient place for the trial of the
The agreement as to the place of the action is not obtained by
misrepresentation, duress, the abuse of economic power, or other unconscionable
The defendant is served with process as provided by court rules.
In Turcheck v Amerifund Financial, Inc, 272 Mich App 341, 345; 725 NW2d 684 (2006), this
Court emphasized that public policy in this state “favors the enforcement of contractual forumselection clauses and choice-of-law provisions.” Consequently, “[a] party seeking to avoid a
contractual forum-selection clause bears a heavy burden of showing that the clause should not be
enforced,” on the basis of a ground contained in MCL 600.746. Id. at 348.
With respect to MCL 600.745 governing forum selection clauses, defendants in their
motion to dismiss contested the propriety of Michigan jurisdiction only on the basis that
Michigan was not “a reasonably convenient place for the trial of the action.” MCL
The basic principle of forum non conveniens is that a court may resist
impositions of its jurisdiction even if that jurisdiction is properly invoked. . . .
After a party moves for dismissal on the basis of forum non conveniens, the court
must consider two things: (1) whether the forum is inconvenient and (2) whether
a more appropriate forum exists. If no more appropriate forum exists, the court
cannot resist jurisdiction. [Lease Acceptance Corp, 272 Mich App at 226.]
In Lease Acceptance Corp, id. at 226-228, this Court explained that the factors delineated in
Cray v Gen Motors Corp, 389 Mich 382, 396; 207 NW2d 393 (1973), supply a useful framework
“for evaluating whether Michigan is a reasonably convenient place for a trial in each particular
case, for the convenience of the parties is the underlying goal of both the statute and the
common-law doctrine.” The Cray factors incorporate the following considerations:
The private interest of the litigant.
Availability of compulsory process for attendance of unwilling and
the cost of obtaining attendance of willing witnesses;
Ease of access to sources of proof;
Distance from the situs of the accident or incident which gave rise
to the litigation;
Enforcibility (sic) of any judgment obtained;
Possible harassment of either party;
Other practical problems which contribute to the ease, expense and
expedition of the trial;
Possibility of viewing the premises.
Matters of public interest.
Administrative difficulties which may arise in an area which may
not be present in the area of origin;
Consideration of the state law which must govern the case;
People who are concerned by the proceeding.
Reasonable promptness in raising the plea of forum non
conveniens. [Radeljak v DaimlerChrysler Corp, 475 Mich 598, 605-606; 719
NW2d 40 (2006), quoting Cray, 389 Mich at 396.]
Defendants’ brief in support of dismissal based on forum non conveniens asserted, “The
equipment is located in Georgia and the Defendants are both from the state of Georgia. The only
reason the case was filed in Michigan is because the Agreement stated that any action should be
filed in the home state of the interest holder of the equipment.” In the circuit court’s bench
ruling, it made no specific mention of MCL 600.745 or the Cray factors. Rather, the court
reasoned that (1) an insufficient connection existed between Michigan and the parties’ dispute,
(2) the public interest did not weigh in favor of jurisdiction in Michigan, and (3) any future
collection efforts would occur in Georgia. However, the forum-selection clause in the lease
agreement unambiguously established a connection between Michigan and the parties’
subsequent contractual dispute. Similarly, “Michigan’s public policy favors the enforcement of
contractual forum-selection clauses and choice-of-law provisions.” Turchek, 272 Mich App at
345. And despite that future collection efforts would take place in Georgia, defendants put
forward no facts reasonably tending to show any possible inconvenience associated with
execution of the judgment in their home state.
. . . [I]nconvenience, insofar as it is within the contemplation of the parties
at the time of contracting, should not render a forum-selection clause
unenforceable. Where the inconvenience of litigating in another forum is
apparent at the time of contracting, that inconvenience is part of the bargain
negotiated by the parties. Allowing a party who is disadvantaged by a contractual
choice of forum to escape the unfavorable forum-selection provision on the basis
of concerns that were within the parties’ original contemplations would unduly
interfere with the parties’ freedom to contract and should generally be avoided.
[Turchek, 272 Mich App at 350.]
In summary, because defendants have not sustained their burden of demonstrating any
inconvenience attendant to having Michigan as the forum state for the parties’ dispute, the circuit
court erroneously dismissed this case. We conclude that the circuit court abused its discretion by
resting its ruling on irrelevant jurisdictional considerations.
Reversed and remanded for further proceedings consistent with this opinion. We do not
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher