for trial that the opposing party would be deprived of his or her day in court” and
whether or not “both parties freely entered into the agreement contemplating such
inconvenience should there be a dispute.” Jd.

In the instant case, Plaintiffs are Illinois residents and FAC is located in North
Carolina. A portion of the contract was performed in Illinois, North Carolina, and
Russia. Potential witnesses are located in Illinois, North Carolina, and Russia.
Plaintiffs have not shown that they will be particularly inconvenienced to the extent
that they will be deprived of their day in court. Although Plaintiffs reside in Illinois,
nothing prevents them from securing local counsel in North Carolina and pursuing
this action. If Plaintiffs cannot afford an attorney then they may apply to the North
Carolina court for an appointment of counsel. Also, Plaintiffs may be able to secure
counsel on a contingency fee basis. Plaintiffs are currently represented by counsel in
the action before us. There is also no indication that the clause was not equally
bargained for. Plaintiffs claim that when they signed the Agreement they were
“unsophisticated individuals who lacked the ability to understand and bargain for
this unreasonable forum selection clause in the agreement.” (Ans. Mot. 10).
However, Plaintiffs admit that they had a day to read the Agreement before signing
it. There is nothing unclear about the clause. The following is included in the
Agreement:

12. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of North Carolina, without
regard to any conflicts of law provisions. The Adoptive Parents and Frank
hereby consent to jurisdiction of the state and federal courts of the State of

4



CONCLUSION
Based upon the foregoing analysis, we grant FAC’s motion to dismiss and we
grant FFCAI’s motion to dismiss.
sal pu. ZA

Samuel Der-Yeghiayda J '
United States District Court Judge

Dated: May 27, 2004


proper venue is that the plaintiff will be time-barred from filing a new claim in the

other venue).

DISCUSSION
FAC argues that this case should be dismissed because in the “Foreign Child

Placing Services Agreement” (“Agreement”) Plaintiffs agreed to the jurisdiction of
North Carolina courts. Ifa forum selection clause is included in an agreement the
clause is considered to be “prima facie valid and should be enforced unless the
opposing party shows that enforcement would be unreasonable under the
circumstances.” Calanca v. D & S Mfg. Co, 510 N.E.2d 21, 23 (Ill. App. Ct. 1987).
In determining whether a forum selection clause is unreasonable a court should
consider: "(1) which law governs the formation and construction of the contract; (2)
the residency of the parties involved; (3) the place of execution and/or performance;
(4) the location of the parties and witnesses participating in the litigation; (5) the
inconvenience of the parties of any particular location; and (6) whether the clause
was equally bargained for." /d. The court should also consider whether the
opposing party has shown “that enforcement would contravene the strong public
policy of the state in which the case is brought.” Yamada Corp. v. Yasuda Fire and
Marine Ins. Co., Lid., 712 N.E.2d 926,930-34 (Ill. App. Ct. 1999), In considering the
potential inconvenience to the parties caused by the forum selection clause the court

should inquire as to whether “the chosen forum would be so seriously inconvenient

3


North Carolina over any disputes arising from, or in connection with, this
Agreement.

The paragraph is isolated near the top of the page and there is a blank line before and
after the paragraph. The paragraph is straightforward and does not contain legal
language that would confuse an average layperson. In addition Paragraph 9 of the
Agreement states as follows:

9. Opportunity to Consult Counsel The Adoptive Parents acknowledge
and agree that they have had adequate opportunity to consult with
independent counsel of their choosing with respect to the terms of this
Agreement and that they have made their own decision, without any influence
by Frank, or any of its agents with respect to such consultation.

This paragraph is also straightforward and self-explanatory. Thus, Plaintiffs read
paragraphs 9 and 12 and chose to sign the Agreement the following day. Plaintiffs
have not offered any explanation that would indicate that they were unfairly forced
into the Agreement. In fact, in their own answer brief, Plaintiffs argue that they
“could not have anticipated being the subject of a lawsuit for wrongful adoption. . .
.”” (Ans. Mot. 10). While that may be true, and Plaintiffs may not have anticipated
litigation, the fact remains that they agreed to the provisions of Paragraphs 9 and 12
and that the provisions were part of the bargained for exchange that formed the terms
of the contract. We have also considered the public policy arguments made by
Plaintiffs and we find that Illinois public policy does not demand that this action be

brought in [linois. Therefore, we find that North Carolina is the proper venue for


~

—

/

Minute Seder Founs (0897)

[7

United States District Court, Northern District of Illinois

N: f Assigned Jud; _ i Sitti i
erg Magistrate Juage | __ Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 03 C 5737 DATE 5/27/2004
CASE Derrick vs. Frank Foundation
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

(1) o Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

3) Oo Answer brief to motion due__. Reply to answer brief due__

(4) oO Ruling/Hearing on___ set for at

(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oO Pretrial conference{held/continued to] [set for/re-set for] on set for at.

(0) Oo Trial[set for/re-set for]on ss at_

(8) go [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

(10) WH (Otherdocketentry] Plaintiff's motion to reconsider the order for dismissal for want of prosecution

and reinstate the case is granted. Case reinstated. For the reasons stated on the attached memorandum
opinion, the Court hereby grants both defendants’ motions to dismiss [8-1], [10-1]. All pending dates and

motions are hereby stricken as moot. Terminating case. Enter Memorandum Opinion.

ay

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
q number of notices

Notices mailed by judge’s staff. MAY 28 2004

Notified counsel by telephone. ate dockeled,

Docketing to mail notices. Memorandum
Opinion distributed in open Court.

Mail AO 450 form.

Copy to judge/magistrate judge

date mailed notice

n

courtroom:
deputy's
initials

MW6

Date/time received in

central Clerk’s Office mailing deputy initials



this dispute and we grant FAC’s motion to dismiss. Plaintiffs have not advanced any
arguments or evidence that they will be time-barred from filing a new suit in North
Carolina. If Plaintiffs believe that they will be time-barred from filing a new suit in
North Carolina, Plaintiffs should file a motion for reconsideration within ten
business days of this ruling.

In regards to FFCAI, since we have determined that North Carolina is the
proper forum for the dispute between Plaintiffs and FAC, we also deem it the proper
forum for the dispute between Plaintiffs and FFCAI. Although FFCAI was not party
to the Agreement which contains the forum selection clause, weighing the
convenience of the parties and witnesses, and the public interest, and considering the
fact that a North Carolina suit would be a more comprehensive suit we dismiss the
claims against FFCAI based upon the doctrine offorum non conveniens. See In re
Ford Motor Co., Bridgestone/Firestone North American Tire, LLG 344 F.3d 648,
652 (7 Cir. 2003)(stating that “[iJn determining whether to dismiss, courts [should]
consider whether an adequate alternative forum is available to hear the case, and
whether various private and public interest factors clearly indicate that the suggested

alternative forum is superior.”).



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Steven Derrick and Michelle
Derrick, individually, and as Parents
and Next Friends of Kaleena Derrick,
a minor

Plaintiff,

v. No. 03 C 5737
Frank Foundation Child Assistance
International, Inc. a foreign corporation,
and Frank Adoption Center, A North
Carolina Corporation

Defendants.

wee SSS SS Oe eS

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant Frank Adoption Center’s
(“FAC”) motion to dismiss and on Defendant Frank Foundation Child Assistance
International, Inc.’s (“FFCAI”) motion to dismiss. For the reasons stated below we

grant both motions to dismiss.


BACKGROUND

Plaintiffs Stephen Derrick and Michelle Derrick adopted Kaleena
Derrick (“Kaleena”) from Russia. FAC acted as the adoption agency for Plaintiffs.
FFCAI provided FAC with information regarding Kaleena during the adoption
process. Approximately seven months after Kaleena was adopted, she was
diagnosed with cerebral palsy. Plaintiffs have brought suit against FAC alleging that
FAC concealed and/or inaccurately related the medical information for Kaleena.
Plaintffs have brought claims against Defendants for fraud, negligent
misrepresentation, breach of contract, breach of Illinois Consumer Fraud Act, and

adoption agency malpractice. Both Defendants have filed motions to dismiss.

LEGAL STANDARD
Federal Rule of Procedure 12(b)(3) motion to dismiss is the proper manner to
challenge venue based upon a forum selection clause, Continental Ins. Co. v. M/V
ORSULA, 354 F.3d 603, 606-07 (7" Cir. 2003). Ifa court determines that it is not
the proper venue for the action the court is required to dismiss the action or “if it be
in there interests of justice, transfer such case to any district or division in which it
could have been brought.” 28 U.S.C. § 1406(a). See also Phillips v. Seiter, 173

F.3d 609, 610 (7 Cir. 1999)(stating that a sufficient reason to transfer a case to the