IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

OR-CAL, INC., an Oregon 

corporation, 

Plaintiff, 

v. 

TESSENDERLO KERLEY, INC., 

a Delaware corporation, 

Defendant. 

Timothy B. McCormack 

McCormack Intellectual Property Law 

617 Lee Street 

Seattle, Washington 98109 

Attorney for plaintiff 

Jenna Leigh Mooney 

Davis Wright Tremaine, LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201 

Kevin M. Green 

Whitney Sedwick Meister 

Fennemore Craig, PC 

2394 E. Camelback Road, Suite 600 

Phoenix, Arizona 85016 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01074-AA 

OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 1 of 7
AIKEN, Chief Judge: 

Defendant Tessenderlo Kerley, Inc. moves to transfer venue 

pursuant to 28 U.S.C. § 1404(a). Defendant's motion is granted. 

BACKGROUND 

Plaintiff Or-Cal, Inc. is an Oregon corporation with its 

principal place of business in Oregon. Defendant is a Delaware 

corporations with its principal place of business in Arizona. On 

January 29, 2004, plaintiff and defendant entered into a written 

agreement ("Contract") pertaining to the manufacturing, 

formulating, packaging, and labeling of 28% Calcium Polysulfide 

solution, an agricultural pesticide. Defendant drafted the 

Contract. In June 2014, defendant notified plaintiff that it did 

not intend to honor the Contract's non-compete provision after 

December 31, 2014, the date the Contract is slated to lapse. 

On July 3, 2014, plaintiff filed a complaint in this Court 

alleging a claim for declaratory judgement regarding the respective 

rights and duties of the parties in relation to the Contract's noncompete provision for the upcoming 2015 growing season. On July 22, 

2014, defendant filed the present motion to transfer venue to the 

United States District Court for the District of Arizona ("District 

of Arizona"), premised on the Contract's forum selection clause. 

STANDARD 

The court ordinarily considers the following non-exclusive 

factors in determining whether to transfer venue pursuant to 28 

U.S.C. § 1404(a): 

( 1) the location where the relevant agreements were 

negotiated and executed, ( 2) the state that is most 

familiar with the governing law, ( 3) the plaintiff's 

choice of forum, ( 4) the respective parties' contacts 

with the forum, (5) the contacts relating to the 

Page 2 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 2 of 7
plaintiff's cause of action in the chosen forum, (6) the 

differences in the costs of litigation in the two forums, 

( 7) the availability of compulsory process to compel 

attendance of unwilling non-party witnesses, and (8) the 

ease of access to sources of proof. 

Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.), 

cert. denied, 531 U.S. 928 (2000). 

A valid and mandatory contractual forum selection clause, 

however, alters the court's 28 U.S.C. § 1404(a) analysis. Atlantic 

Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 

134 S.Ct. 568, 579-81 (2013). In such cases, the plaintiff bears 

the burden of establishing that transfer is unwarranted, and the 

plaintiff's choice of forum and the parties' private interests 

merit no weight, effectively limiting the court's consideration to 

any arguments concerning public-interest factors. Id. at 581-82; 

see also Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1140 (9th 

Cir. 2004) (non-permissive forum selection clauses are 

"presumptively valid" and "should be honored absent some compelling 

and countervailing reason," such that "[t]he party challenging the 

clause bears a heavy burden of proof and must clearly show that 

enforcement would be unreasonable and unjust, or that the clause 

was invalid for such reasons as fraud or over-reaching") (citation 

and internal quotations omitted). 

DISCUSSION 

Plaintiff opposes defendant's motion because the Contract's 

forum selection clause "is permissive due to its notable lack of 

exclusive command words, instead utilizing the permissive word 

'may.'" Pl.'s Resp. to Mot. Transfer 5. According to plaintiff, 

Atlantic is inapplicable and, under the balancing factors 

articulated in Jones, venue is proper in this District. Conversely, 

Page 3 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 3 of 7
defendant asserts that Atlantic governs, regardless of whether the 

forum selection clause is permissive or mandatory, 1 such that this 

case should be transferred to the District of Arizona consistent 

with the Contract's express terms. The resolution of defendant's 

motion therefore hinges on whether the Contract's forum selection 

clause is mandatory or permissive. 

"The question whether the forum selection clause is mandatory 

or permissive is a matter of contract interpretation." N. Cal. 

Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 

F.3d 1034, 1036 (9th Cir. 1995). When interpreting a contract, "the 

common or normal meaning of language will be given to the words" 

and ambiguous language should be construed "against the drafter." 

Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77-78 (9th 

Cir. 1987). Accordingly, "[t]o be mandatory, a clause must contain 

language that clearly designates a forum as the exclusive one." !L_ 

Cal. Dist. Council, 69 F.3d at 1037. 

1 Defendant argues, for the first time in its reply brief, 

that Atlantic applies to any valid forum selection clause. In 

other words, "[a]pplication of Atlantic Marine does not turn on 

whether a clause is deemed mandatory or permissive." Def.'s Reply 

to Mot. Transfer 4 (citing United Am. Healthcare Corp. v. Backs, 

2014 WL 555194, *7-9 (E.D.Mich. Feb. 12, 2014)). The Court need 

not reach this issue because, as discussed herein, the Contract's 

forum selection clause is non-permissive and it is undisputed 

that Atlantic governs in these circumstances. The Court 

nonetheless notes that, while not dispositive, the case cited by 

defendant does not directly support its argument. See Backs, 2014 

WL 555194 at *8 (stating only that "[d]efendants have cited no 

authority showing that [the mandatory/permissive] distinction is 

even relevant in this jurisdiction, nor any authority showing 

that such a distinction would change this Court's analysis of a 

section 1404 issue"). Further, contrary to defendant's assertion, 

"[i]f the forum-selection clause is permissive, the courts have 

consistently declined to apply Atlantic Marine." Fin. Cas. & 

Sur., Inc. v. Parker, 2014 WL 2515136, *3 (S.D.Tex. June 4, 2014) 

(collecting cases). 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 4 of 7
part: 

The Contract's forum selection clause states, in relevant 

[t]his Agreement shall be deemed to have been executed in 

the State of Arizona, U.S.A., and shall be governed by 

the laws of Arizona. Each party herein irrevocably waives 

any objection it may have to the jurisdiction, 

convenience of the forum, and agrees to submit to the 

jurisdiction and final decision of the courts, State and 

Federal, of the State of Arizona, for any action arising 

under this Agreement . . . Each Party further consents to 

the enforcement of any judgment or order of said courts 

in any jurisdiction where it has assets or may be found. 

Compl. Ex. 1, at 11. Initially, it is undisputed that this lawsuit 

qualifies as "any action arising under" the Contract. As plaintiff 

correctly notes, the Contract language at issue here "fails to use 

either the word 'only,' 'must,' 'sole,' 'exclusive,' or 'shall."' 

Pl.'s Resp. to Mot. Transfer 8. 

Nonetheless, the Court finds that although it is not drafted 

as precisely as it could be, the Contract's forum selection clause 

unambiguously designates Arizona as the exclusive forum. Notably, 

pursuant to the express language of this provision, plaintiff 

"irrevocably waive[d] any objection" to both "the jurisdiction" and 

the "convenience of the forum" of Arizona. Compl. Ex. 1, at 11. 

Additionally, plaintiff "agree[d] to submit to the jurisdiction and 

final decision" of Arizona's state and federal courts. Id. In other 

words, plaintiff unconditionally submitted to the jurisdiction and 

venue of Arizona. As such, contrary to plaintiff's assertion, the 

Contract's forum selection clause does not merely represent nonexclusive consent to Arizona's jurisdiction over this action. 

Indeed, adopting plaintiff's interpretation would render words and 

phrases within this provision meaningless. 

Thus, when imbued with its plain meaning, the Contract's forum 

Page 5 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 5 of 7
selection clause can only be reasonably read as mandatory. As a 

result, the heightened standard outlined in Atlantic applies. 

Plaintiff's choice of forum and the parties' private interests are 

immaterial; instead, this Court "may consider arguments about 

public-interest factors only [although] those factors will rarely 

defeat a transfer motion." Atlantic, 134 S.Ct. at 582. 

Here, plaintiff's brief is silent concerning any public 

interest factors. This is likely because, as defendant observes, 

this dispute "concerns the business agreements of two private 

companies," such that no public-interest considerations are 

implicated. Def. 's Mem. in Supp. of Mot. Transfer 6. Moreover, 

plaintiff does not argue that the Contract's forum selection clause 

resulted from fraud, undue influence, or overwhelming bargaining 

power. See Murphy, 362 F.3d at 1141. While plaintiff denotes the 

disparity between the parties' relative financial abilities, as 

well as the "significant expense and hardship" it would suffer if 

forced to litigate elsewhere, plaintiff does not contend that it 

will be deprived of its day in court if this case is transferred to 

the District of Arizona. Horn Decl. ~~ 31-32. Therefore, the Court 

finds that no compelling reasons or other exceptional circumstances 

exist in the case at bar which would counsel against enforcement of 

the Contract's valid and mandatory forum selection clause. 

Defendant's motion is granted. 

Page 6 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 6 of 7
CONCLUSION 

Defendant's motion to transfer venue (doc. 6) is GRANTED. This 

case shall be transferred to the District of Arizona. 

IT IS SO ORDERED 

Dated this of September 2014. 

Ann Aiken 

United States District Judge 

Page 7 - OPINION AND ORDER 

Case 6:14-cv-01074-AA Document 20 Filed 09/01/14 Page 7 of 7