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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EZLINKS GOLF, INC., )

Plaintiff, ) Case No. 12-cv-3630

)

v. ) Judge Sharon Johnson Coleman

)

GOLFNOW, LLC f/k/a GOLFNOW, INC. and )

MICHAEL J. BROWN, )

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Defendants GolfNow, LLC (“GolfNow”) and Michael J. Brown (“Brown”) move to dismiss 

plaintiff EZLinks Golf, Inc.’s (“EZLinks”) complaint for improper venue pursuant to Fed. R. Civ. 

P. 12(b)(3). For the following reasons, the defendants’ motion is granted.

Background

EZLinks is a Delaware corporation with its headquarters in Chicago, Illinois. GolfNow is 

an Arizona company with its headquarters in Orlando, Florida. Brown is a resident of Elmhurst, 

Illinois and a former employee of EZLinks. Both EZLinks and GolfNow are engaged in the 

business of providing online tee time reservations and course selection bookings. 

In 2009 EZLinks and GolfNow entered into a Software Interface Agreement (the 

“Agreement”) whereby EZLinks allowed GolfNow limited access to its electronic tee sheet 

software so that GolfNow could search and make tee time reservations on approved golf courses. 

The Agreement required the parties to work together to configure an electronic interface in order to 

meet GolfNow’s tee time business while preserving EZLinks’ interests in protecting its ownership 

and distribution of its software. In particular, the Agreement expressly provided that GolfNow 

would not use EZLinks’ software or the interface for any unauthorized purposes and that GolfNow 

would not modify, produce a source listing, recompile, disassemble or otherwise reverse engineer 
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EZLinks’ software or the interface. Additionally, GolfNow was prohibited from providing access 

to EZLinks’ software to any third party or copying the software except as reasonably necessary for 

backup or archival purposes. The Agreement contained an arbitration clause providing for 

arbitration in Orlando, Florida of “any dispute or difference of any kind” which may “arise out of or 

relate to” the Agreement. The Agreement also contained a choice of law provision providing that 

the Agreement “shall be governed by Florida law.” 

On May 11, 2012, EZLink filed a complaint alleging that GolfNow and Brown illegally 

accessed proprietary information regarding EZLinks’ software in violation of the Computer Fraud 

and Abuse Act, 18 USC § 1030, et seq., and the Illinois Trade Secrets Act, 765 ILCS 1065/1, et seq. 

EZLinks also alleges state law claims of conversion, trespass, commercial disparagement, and 

conspiracy. GolfNow initially moved to compel arbitration and to dismiss EZLinks complaint or, in 

the alternative, to stay the case pending arbitration of EZLinks claims. However, where an 

arbitration agreement contains a forum selection clause, only a district court in that forum can issue 

an order compelling arbitration. Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 808 (7th 

Cir. Ill. 2011). Accordingly, this Court denied GolfNow’s motion without prejudice noting that 

GolfNow could file a motion to dismiss for improper venue or, alternatively, bring an action under 

Section 4 of the Federal Arbitration Act (“FAA”) in a district court in Florida having the authority 

to compel arbitration in that state, while requesting that this Court stay its proceedings. Presently 

before the Court is GolfNow’s motion to dismiss EZLinks complaint for improper venue pursuant 

to Fed. R. Civ. P. 12(b)(3). For the following reasons, GolfNow’s motion to dismiss is granted.

Legal Standard

Rule 12(b)(3) allows a party to move for dismissal of an action when it is not filed in the 

proper venue. Fed. R. Civ. P. 12(b)(3). The plaintiff bears the burden of establishing that venue is 

proper. Int’l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981). 
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When ruling upon a Rule 12(b)(3) motion, the Court takes all the allegations in the complaint as 

true, unless contradicted by an affidavit. Nagel v. ADM Investor Servs., Inc., 995 F. Supp. 837, 843 

(N.D. Ill. 1998). The Court also resolves all factual disputes and draws all reasonable inferences in 

the plaintiff’s favor. Nagel, 995 F. Supp. at 843. When venue is improper, the Court “shall dismiss 

[the case], or if it be in the interest of justice, transfer such case to any district or division in which it 

could have been brought.” 28 U.S.C. § 1406(a)

Discussion

After parties have signed an arbitration agreement, a court may only properly decide 

threshold questions of substantive arbitrability including: “(1) whether the parties are bound by a 

given arbitration agreement; and (2) whether an arbitration clause in a binding contract applies to a 

particular type of controversy.” Marzano v. Proficio Mortg. Ventures, LLC, No. 12 C 7696, 2013 

U.S. Dist. LEXIS 60108, at *10-13 (N.D. Ill. Apr. 25, 2013). The FAA requires that any doubts 

concerning the scope of arbitrable issues be resolved in favor of arbitration. Kiefer Specialty 

Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909 (7th Cir. 1999). Therefore, a court “may not deny 

a party’s request to arbitrate an issue unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Kiefer 

Specialty Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909 (7th Cir. 1999) (internal citations 

omitted). Where “the parties have adopted a broad arbitration clause, a court will compel 

arbitration unless there is forceful evidence that the parties intended to exclude their grievance from 

arbitration.” Ferenc v. Brenner, No. 12 C 2071, 2013 U.S. Dist. LEXIS 23890, at *9 (N.D. Ill. Feb. 

21, 2013). 

In this case, the arbitration provision specifically provides that: “other than actions for 

specific performance or other equitable relief, if any dispute or difference of any kind (a ‘Dispute’) 

shall arise out of or related to this Agreement, the Parties shall attempt to settle such Dispute by 
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mutual discussions, such Dispute shall be settled by binding arbitration conducted in Orlando, 

Florida, in accordance with the rules then in effect of the American Arbitration Association.” 

EZLinks does not contest the validity of the arbitration provision, but instead disputes whether the 

claims in this case fall within the scope of the arbitration provision.

GolfNow argues that EZLinks’ claims are subject to arbitration because they “arise out of or 

relate to” the parties’ Agreement. EZLinks argues that dismissal is improper because it never 

intended to subject its present claims to arbitration. To determine whether a contract’s arbitration 

clause applies to a given dispute, federal courts apply state-law principles of contract formation. 

Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 662 (7th Cir. 2002). However, once it is clear 

that the parties have a contract that provides for arbitration of some issues between them, any doubt 

concerning the scope of the arbitration clause is resolved in favor of arbitration as a matter of 

federal law. Gore v. Alltel Communs., LLC, 666 F.3d 1027, 1032 (7th Cir. 2012).

In this case, the parties do not dispute the existence of a valid Agreement and arbitration 

clause. Furthermore, although EZLinks argues that it never intended for its claims to be subject to 

arbitration, under Florida law (which governs the parties’ Agreement), the intent of the parties to a

contract is manifested in the plain language of the arbitration provision and contract itself. Jackson 

v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013). Contrary to EZLinks’ contention that 

its claims have no connection to the Agreement, the plain language of the parties’ contract provides 

for the arbitration of all disputes that arise out of or relate to the Agreement. Obligations created by 

the parties’ unique contractual relationship in the Agreement is precisely what is at issue in 

EZLinks’ complaint. In order to determine whether GolfNow illegally accessed EZLinks’ software, 

a court must refer to and interpret the scope of GolfNow’s permissible access as provided by the 

specific terms of the Agreement. Because it is clear that the parties have a valid contract that 

provides for the arbitration of at least some issues between them, the disputed scope of the 
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arbitration clause is resolved in favor of arbitration. See id. Accordingly, Counts I-VI are all 

dismissed for improper venue.

The parties also dispute whether Brown, a non-signatory to the parties’ Agreement, can be 

bound by the arbitration clause. GolfNow argues that Brown can properly be required to arbitrate 

because EZLinks claims against Brown are grounded in or intertwined with the arbitrable claims 

EZLinks asserts against GolfNow. EZLinks asserts that its claims against Brown are independent 

of its contract with GolfNow.

The mere fact that a party is not a signatory to an agreement does not defeat the right to 

compel arbitration. Field Sys. Machining, Inc. v. Vestas-American Wind Tech., Inc., No. 13-cv-301, 

2013 U.S. Dist. LEXIS 66427, at *10 (N.D. Ill. May 9, 2013). An agreement containing an 

arbitration clause may cover non-signatories under common-law contract and agency principles. 

When a signatory raises allegations of substantially interdependent and concerted misconduct by 

both the non-signatory and one or more of the signatories to the contract, estoppel may apply. Id. 

Despite EZLinks’ arguments to the contrary, EZLinks does in fact allege interdependent or 

concerted misconduct by Brown and GolfNow. EZLinks alleges that Brown, a former EZLinks 

employee, acted together with GolfNow to illegally access its proprietary software. This Court 

finds EZLinks claims against Brown substantially interdependent with its claims against GolfNow 

such that arbitration against Brown is appropriate. Accordingly, all claims against Brown are 

properly dismissed.

Conclusion

For the foregoing reasons, GolfNow’s motion to dismiss for improper venue is granted. 

IT IS SO ORDERED.

August 7, 2013

____________________________

Sharon Johnson Coleman

United States District Judge