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I. Background1

A. Factual Background 

This case arises out of 10 franchise agreements entered into between the parties, as well 

as alleged representations made by the parties before and during the performance of the 

agreements. 

Bent is a resident of New York State. Compl. ¶ 2; Zounds Br. 1. Zounds Hearing is an 

Arizona limited liability company, with a principal place of business in Arizona, which grants 

franchises for the right to own and operate a retail hearing aid business. Compl. ¶ 3; Zounds Br. 

2. Zounds Inc. is a Delaware corporation, with a principal place of business in Arizona, which 

offers and sells hearing aid devices to franchisees, and is the parent and sole member of Zounds 

Hearing. Compl. ¶ 4; Zounds Br. 2. Thomasson is a resident of Arizona, the Business 

Development Advisor and sole manager of Zounds Hearing, and the founder and CEO of Zounds 

Inc. Compl. ¶ 5; Zounds Br. 3. FranChoice is a Minnesota corporation, with a principal place of 

business in Minnesota, which provides franchise consulting services for prospective franchisees. 

Compl. ¶ 6. 

 

1

 In deciding a motion to transfer venue, the Court may consider factual submissions, including 

declarations, by defendants, who have the burden of justifying a change of venue. See, e.g.,

Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), abrogated on other 

grounds by Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990); Mastercard Int’l, Inc. v. 

Lexcel Sols., Inc., No. 03 Civ. 7157 (WHP), 2004 WL 1368299, at *6 (S.D.N.Y. June 16, 2004) 

(relying on defendant’s declarations in granting motion to transfer). Accordingly, in deciding 

this motion, the Court considers Bent’s complaint, Dkt. 25, Ex. 1 (“Compl.”), as well as Zounds’ 

briefs in support of the motion to transfer, Dkt. 22 (“Zounds Br.”); Dkt. 30 (“Zounds Reply 

Br.”), and the attached exhibits, including one entire Franchise Agreement, Dkt. 22, Exs. 2, 3 

(“FA”), the signature pages of the nine remaining Franchise Agreements, FA, Ex. A, the 

Franchise Agreement Addendum, Dkt. 22, Ex. 4 (“Addendum”), and the affidavits of Samuel L. 

Thomasson, Dkt. 22, Ex. 6 (“Thomasson Aff.”), Dean Essa, Dkt. 22, Ex. 5 (“Essa Aff.”), and 

William R. Graefe, Dkt. 31, Ex. 1 (“Graefe Aff.”). 

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In summer 2013, Bent contacted FranChoice regarding his interest in purchasing a 

franchise. Compl. ¶ 11. On FranChoice’s recommendation, Bent contacted Thomasson to learn 

about the Zounds franchise, and attended a discovery day at Zounds’ headquarters in Arizona. 

Compl. ¶¶ 11–13, 17–18; Zounds Br. 3. 

On or about September 13, 2013, Bent, on behalf of his company, B2 Hearing, executed 

franchise agreements (the “FAs”) to buy 10 Zounds franchises for a total of $240,000. Compl. ¶ 

20; Zounds Br. 4; Essa Aff. ¶ 11; FA; FA, Ex. A. Bent signed a form of guaranty attached to 

each of the FAs (the “Guaranties”), in which he agreed to personally guarantee, as well as be 

personally bound by, each of B2 Hearing’s obligations under the FAs. Zounds Br. 4; FA, Ex. B, 

Art. I. Finally, Bent signed, in his personal capacity, an Addendum to the FAs, which designated 

Bent as “Franchisee” under the FAs, and contained other modifications to the FAs based on the 

parties’ negotiations. Zounds Br. 3–4; Essa Aff. ¶¶ 9–12. 

Each of the FAs contains the following forum-selection clause: 

Except for [certain claims initiated by Zounds], the parties agree that any actions 

arising out of or related to this Agreement must be initiated and litigated in the 

state court of general jurisdiction closest to Phoenix, Arizona or, if appropriate, 

the United States District Court for the District of Arizona. Franchisee 

acknowledges that this Agreement has been entered into in the State of Arizona, 

and that Franchisee is to receive valuable and continuing services emanating from 

Franchisor’s headquarters in Arizona . . . . In recognition of such services and 

their origins, Franchisee hereby irrevocably consents to the personal jurisdiction 

of the state and federal courts of Arizona as set forth in this Section. 

FA ¶ 22(E). Each of the Guaranties contains the following forum-selection clause: 

With respect to any proceeding not subject to mediation, the parties agree that any 

action at law or in equity instituted against either party to this Agreement must be 

commenced and litigated to conclusion (unless settled) only in any court of 

competent jurisdiction located closest to Phoenix, Arizona or, if appropriate, the 

United States District Court for the District of Arizona. The undersigned hereby 

irrevocably consents to the jurisdiction of these courts. 

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FA, Ex. B, Art. IV, § 5. The Addendum includes the following integration clause, which 

incorporates the forum-selection clause contained in the FAs: 

The Franchise Agreements and this Addendum constitute the entire, full, and 

complete agreement between the parties concerning the franchise and supersedes 

any and all prior agreements. In the event of a conflict between the terms of the 

Franchise Agreements and this Addendum, the terms of this Addendum shall 

control. Except as amended by this Addendum, all the other terms and conditions 

of each Franchise Agreement are hereby ratified and confirmed, including the 

provisions related to governing law, venue and dispute resolution that will also 

apply to this addendum. 

Addendum ¶ 17. 

 Pursuant to the Addendum, Bent wired Zounds an upfront payment of $240,000. Compl. 

¶ 22; Essa Aff. ¶ 11. However, Bent alleges, Zounds later failed to carry out its obligations 

under the FAs or to fulfill the promises made by Thomasson and other Zounds representatives in 

connection therewith. Compl. ¶¶ 23–29. In 2014, Bent requested that Thomasson return Bent’s 

$240,000 advance payment until Zounds fulfilled its initial obligations and Bent’s franchises 

were open for business—a reimbursement which, Bent claims, was required by the New York 

Attorney General’s mandate prescribing deferral of initial franchise fees. Id. ¶ 30. When 

Thomasson refused, Bent opened an independent hearing aid center in one of the franchise 

territories. Id. ¶ 31; Zounds Br. 8. 

After Zounds declined to subject Bent’s claims to mediation, see Compl. ¶ 30; Essa Aff. 

¶ 3, Bent brought this lawsuit. Bent alleges that defendants made fraudulent and/or negligent 

misrepresentations about the Zounds franchise system, which induced Bent to purchase the 10 

Zounds franchises, and that Zounds failed to perform its obligations under the FAs. Compl. ¶¶ 

33–58. 

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B. Procedural History 

On July 28, 2015, Bent filed a complaint in New York State Supreme Court, alleging 

violations of N.Y. Gen. Bus. Law §§ 687 and 691, and fraudulent inducement, fraudulent and/or 

negligent misrepresentation, and breach of contract. See Dkt. 1. On August 19, 2015, Zounds 

filed a notice of removal pursuant to 28 U.S.C. § 1446. Id.

2

 On September 24, 2015, 

FranChoice filed a motion to dismiss the complaint. Dkt. 16. On October 1, 2015, Zounds filed 

both a motion to transfer and a motion to dismiss the complaint, Dkt. 21, and a memorandum of 

law in support, Dkt. 22. 

On October 6, 2015, the Court notified the parties that it would resolve the motion to 

transfer before considering, if necessary, the motions to dismiss, and directed Bent to file an 

opposition only as to that motion. Dkt. 24. On October 16, 2015, Bent filed a memorandum of 

law in opposition to the motion to transfer, Dkt. 26 (“Bent Br.”), as well as a declaration of 

Bent’s counsel, Dkt. 25. On October 29, 2015, Zounds filed their reply. Zounds Reply Br. 

II. Legal Standards Governing Transfer Under 28 U.S.C. § 1404(a) 

Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the 

interest of justice, a district court may transfer any civil action to any other district or division 

where it might have been brought . . . or to which all parties have consented.” 

In general, § 1404(a) gives district courts wide latitude to decide whether to transfer 

venue. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. 

v. Ricoh Corp., 487 U.S. 22, 29 (1988)); Guardian Life Ins. Co. of Am. v. Hernandez, No. 11 

Civ. 2114 (SAS), 2011 WL 3678134, at *2 (S.D.N.Y. Aug. 22, 2011). In deciding a motion to 

transfer, a court should first inquire “whether the action could have been brought in the 

 

2

 On August 27, 2015, FranChoice consented to the removal. Dkt. 13. 

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transferee district and, if yes, whether transfer would be an appropriate exercise of the Court’s 

discretion.” Robertson v. Cartinhour, No. 10 Civ. 8442 (LTS), 2011 WL 5175597, at *3 

(S.D.N.Y. Oct. 28, 2011). 

Assessing whether transfer is a valid exercise of discretion ordinarily requires the court to 

balance various factors, including: 

(1) the convenience of witnesses; (2) the convenience of the parties; (3) the 

location of relevant documents and the relative ease of access to sources of proof; 

(4) the locus of operative facts; (5) the availability of process to compel the 

attendance of unwilling witnesses; (6) the relative means of the parties; (7) the 

forum’s familiarity with the governing law; (8) the weight accorded the plaintiff’s 

choice of forum; and (9) trial efficiency and the interests of justice, based on the 

totality of the circumstances. 

Robertson, 2011 WL 5175597, at *4; see also Kreinberg v. Dow Chem. Co., 496 F. Supp. 2d 

329, 330 (S.D.N.Y. 2007); Reliance Ins. Co. v. Six Star, Inc., 155 F. Supp. 2d 49, 56–57 

(S.D.N.Y. 2001). 

“The calculus changes, however, when the parties’ contract contains a valid forumselection clause, which ‘represents the parties’ agreement as to the most proper forum.’” Atl. 

Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 581 (2013) (quoting 

Stewart, 487 U.S. at 31). “When the parties have agreed to a valid forum-selection clause, a 

district court should ordinarily transfer the case to the forum specified in that clause.” Id. “[A]s 

the party defying the forum-selection clause, the plaintiff bears the burden of establishing that 

the transfer to the forum for which the parties bargained is unwarranted.” Id. Because the 

plaintiff is deemed to have exercised its venue choice at the time of contracting, the court is to 

accord the plaintiff’s present choice of forum no weight, and “must eschew consideration of 

private interests in favor of public interest factors only.” In re Residential Capital, LLC, 527 

B.R. 865, 873 (S.D.N.Y. 2014) (citing Atl. Marine, 134 S. Ct. at 581–83); see also In re Refco 

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Inc., Secs. Litig., No. 08 Civ. 3086 (JSR), 2009 WL 5548666, at *5 (S.D.N.Y. Nov. 16, 2009) 

(“Both the Supreme Court and the Second Circuit have recognized that forum-selection clauses 

have economic value and should be enforced in accordance with the expectations of the 

parties.”) (collecting cases). “Only under extraordinary circumstances unrelated to the 

convenience of the parties should a § 1404(a) motion be denied.” Atl. Marine, 134 S. Ct. at 581. 

III. Discussion 

In support of its motion for transfer to the District of Arizona, Zounds argues that the 

parties are bound by what it claims is the enforceable and mandatory forum-selection clause in 

each of the 10 FAs, as incorporated in the Addendum, and the Guaranties. 

When assessing a motion to transfer on the basis of an alleged forum-selection clause, 

“the Court must consider, first, whether the forum-selection clause is valid and, second, whether 

public interest factors nevertheless counsel against its enforcement.” Midamines SPRL Ltd. v. 

KBC Bank NV, No. 12 Civ. 8089 (RJS), 2014 WL 1116875, at *3 (S.D.N.Y. March 18, 2014). 

The Court addresses these issues in turn. 

A. The Forum-Selection Clause Contained Within the Franchise Agreements Is 

Valid and Enforceable in the Present Action 

The enforceability of a forum-selection clause is determined by federal law. Martinez v. 

Bloomberg LP, 740 F.3d 211, 224 (2d Cir. 2014). A forum-selection clause is “presumptively 

enforceable” if the moving party can demonstrate that: (1) the clause was reasonably 

communicated to the party challenging enforcement; (2) the clause is mandatory, rather than 

permissive, in nature; and (3) the clause encompasses the plaintiff’s claims. Phillips v. Audio 

Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007). If these conditions are satisfied, the clause must 

be enforced unless the party opposing transfer makes a “sufficiently strong showing that 

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enforcement would be unreasonable or unjust, or that the clause was invalid.” Martinez, 740 

F.3d at 21 (quoting M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)). 

1. The Forum-Selection Clause in the Franchise Agreements, as 

Incorporated in the Addendum, Was Reasonably Communicated to 

Bent 

In this Circuit, courts assume that a forum-selection clause stated in clear and 

unambiguous language was reasonably communicated to the plaintiff. See Effron v. Sun Line 

Cruises, Inc., 67 F.3d 7, 9 (2d Cir. 1995) (collecting cases). Here, Zounds argues that the forumselection clause contained in the 10 FAs was reasonably communicated to Bent because: (1) 

Zounds provided Bent with the FAs, each containing the forum-selection clause, at least 14 days 

before their execution; (2) Bent engaged counsel to review the FAs and to assist Bent in 

negotiating the terms of the FAs with Zounds—an effort that resulted in the Addendum, which 

modifies various provisions of the FAs, although not the forum-selection clause; and (3) the 

wording of the clause is unambiguous. Zounds Br. 10–11; Essa Aff. ¶¶ 8–12. 

Bent does not dispute that the forum-selection clause in the FAs unambiguously requires 

litigation in Arizona, or that he had a substantial opportunity to review the agreements in their 

entirety. In light of the clause’s clear text and the evidence of arm’s-length negotiations between 

the parties, each assisted by counsel, the Court finds that the forum-selection clause was 

reasonably communicated to Bent. 

2. The Forum-Selection Clause is Mandatory3

 

“A forum selection clause is viewed as mandatory when it confers exclusive jurisdiction 

on the designated forum or incorporates obligatory venue language.” Phillips, 494 F.3d at 386. 

 

3

 In general, where a contract contains both a choice of law clause and a forum-selection clause, 

a federal court interpreting the forum-selection clause is to apply the body of law specified in the 

contract. Martinez, 740 F.3d at 220. However, as the Second Circuit held in Martinez, where 

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Bent does not dispute that the forum-selection clause contained in the FAs is couched in 

obligatory language. Indeed, it would be difficult to do so, as the clause unequivocally provides 

that any covered actions “must be initiated and litigated” in Arizona. FA ¶ 22(E). The Court 

thus has no trouble concluding that the clause is mandatory, rather than permissive. See Phillips, 

494 F.3d at 383 (in determining whether a forum-selection clause is mandatory, court must 

decide “whether the parties are required to bring any dispute to the designated forum or simply 

permitted to do so” (emphasis in original)). 

3. The Forum-Selection Clause Binds the Parties and Encompasses 

Bent’s Claims 

The third prerequisite for presumptive enforceability is that “the claims and parties 

involved in the suit are subject to the forum-selection clause.” Phillips, 494 F.3d at 383. Bent 

argues that neither he nor his claims are subject to the forum-selection clause at issue here. The 

Court holds otherwise. 

Bent first argues that, because he did not sign the FAs in his personal capacity, he is not 

bound by the forum-selection clause in them. Bent Br. 7. This argument is unpersuasive. It is 

true that Bent executed each FA on behalf of his company, B2 Hearing, as “Franchisee,” rather 

than on his own behalf. See Zounds Reply Br. 1; Zounds Br. 4; FA at 47; FA, Ex. A. But, as 

Bent concedes, he signed the Addendum in his individual capacity. See Bent Br. 3, 8; 

 

the parties do not “urge[] the application of any specific element of the contractually chosen 

body of law to govern the interpretation of the forum-selection clause,” it is appropriate for the 

court “not to ‘rely on any distinctive features of [the selected law] and [instead to] apply general 

contract law principles and federal precedent to discern the meaning and scope of the forum 

clause.’” Id. at 223 (quoting Phillips, 494 F.3d at 386). Here, the FAs provide that Arizona law 

will govern the agreements. FA ¶ 22(A). Nevertheless, the parties each cite precedents from 

disparate federal courts, presumably based on the conclusion that the decisive legal principles do 

not vary across courts. 

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Addendum at 4. Moreover, the Addendum, which expressly supersedes the FAs, see Addendum 

¶ 17 (“In the event of a conflict between the terms of the Franchise Agreements and this 

Addendum, the terms of this Addendum shall control.”), designates “Bruce Bent II, Individually” 

as the franchisee, id.; see also Graefe Aff. ¶ 2 (Zounds’ counsel noting that Bent and Bent’s 

counsel specifically requested that Bent be designated as “Franchisee” in the Addendum). 

The Addendum’s integration clause alone would likely render Bent, as franchisee, subject 

to the FAs, and thereby bound by the forum-selection clause. But it is unnecessary to resolve 

that point, because the Addendum also specifically incorporates by reference the forum-selection 

clause in the FAs. Provision 17 expressly “ratifies” and “confirms” all terms and conditions of 

the FAs not modified by the Addendum, “including the provisions relating to governing law, 

venue and dispute resolution that will also apply to this Addendum.” Addendum ¶ 17. Bent is 

thereby clearly bound by the forum-selection clause as to all actions arising out of and relating to 

both the FAs and the Addendum. See Angeles v. Norwegian Cruise Lines, Inc., No. 01 Civ. 9441 

(RCC), 2002 WL 1997898, at *4 (S.D.N.Y. Aug. 29, 2002) (“Because Plaintiff’s Contract 

incorporates by reference [a separate contract containing a forum-selection clause], the forumselection clause is a term of the Contract.”); New Gold Equities Crop. v. Capital Growth Real 

Estate, Inc., No. 89 Civ. 5472 (LBS), 1990 WL 1272, at *2 (S.D.N.Y. Jan. 2, 1990) (rejecting 

argument that forum-selection clause in one contract cannot be incorporated by reference into 

another contract). 

Bent separately argues that the clause does not bind him as to his claims against Zounds 

Inc. and Thomasson, neither of which executed the FAs or the Addendum. (Zounds Hearing, in 

contrast, is a signatory to the FAs and the Addendum.) Nevertheless, these two defendants, too, 

are bound by the forum-selection clause contained therein. “[T]he fact a party is a non-signatory 

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to an agreement is insufficient, standing alone, to preclude enforcement of a forum-selection 

clause.” Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 701 (2d Cir. 2009). That is 

because “[a] literal approach to interpreting forum selection clauses—an approach that always 

ignored affiliates of the signatories—could . . . undermine the contribution that such clauses have 

been praised for making to certainty in commercial transactions.” Magi XXI, Inc. v. Stato della 

Citta del Vaticano, 714 F.3d 714, 722 (2d Cir. 2013) (quoting Adams v. Raintree Vacation Exch., 

LLC, 702 F.3d 436, 441 (7th Cir. 2012)) (internal quotation marks omitted). Accordingly, the 

Second Circuit has held that “a non-signatory to a contract containing a forum selection clause 

may enforce the forum selection clause against a signatory when the non-signatory is ‘closely 

related’ to another signatory,” such that “the non-signatory’s enforcement of the forum selection 

clause is ‘foreseeable.’” Id. at 723. Non-signatories are deemed “closely related” to signatories 

where their “interests are ‘completely derivative’ of and ‘directly related to, if not predicated 

upon’ the signatory party’s interests or conduct.” KTV Media Int’l, Inc. v. Galaxy Grp., LA LLC, 

812 F. Supp. 2d 377, 386 (S.D.N.Y. 2011) (collecting cases). 

The “closely related” standard is met here. Zounds Inc. is the parent and sole member of 

Zounds Hearing. Compl. ¶ 4; Zounds Br. 2. And Thomasson is the Business Development 

Advisor and sole manager of Zounds Hearing, and founder and CEO of Zounds Inc. Compl. ¶ 5; 

Zounds Br. 3. Further, Bent’s claims against the three defendants are “nearly identical,” and 

arise out of a common transaction involving all three defendants. See Novak v. Tucows, Inc., No. 

06 Civ. 1909 (JFB), 2007 WL 922306, at *13 (E.D.N.Y. Mar. 26, 2007), aff’d, 330 F. App’x 204 

(2d Cir. 2009) (non-signatory was bound by forum-selection clause where claims against it were 

“nearly identical” to those against signatory defendant, and all claims arose out of the same 

transaction involving both defendants). Notably, in the complaint, Bent does not distinguish 

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between the actions of Zounds Hearing and Zounds Inc., referring to the two defendants 

collectively as “Zounds.” See Compl. ¶¶ 4, 19, 23, 28–29. Bent also claims that the three 

defendants acted in concert to defraud Bent for Zounds’ benefit. See id. ¶ 36; Weingard v. 

Telepathy, Inc., No. 05 Civ. 2024 (MBM), 2005 WL 2990645, at *6 (S.D.N.Y. Nov. 7, 2005) 

(“closely related” test was satisfied where plaintiff alleged that defendants acted in concert, sued 

defendants together in all but one claim, and all claims arose out of defendants’ relationships 

with one another). As for Thomasson, each of Bent’s claims against him—constituting three of 

Bent’s four total claims—is brought against Thomasson in his corporate, rather than personal, 

capacity. See Compl. ¶¶ 33–58; Recurrent Capital Bridge Fund I, LLC v. ISR Sys. & Sensors 

Corp., 875 F. Supp. 2d 297, 311 (S.D.N.Y. 2012) (corporate officer was bound by forumselection clause in corporation’s contract, where he participated in, and stood to benefit from, the 

underlying transaction); Thibodeau v. Pinnacle FX Invs., No. 08 Civ. 1662 (JFB), 2008 WL 

4849957, at *5 n.4 (E.D.N.Y. Nov. 6, 2008) (foreseeable to plaintiff that forum-selection clause 

would apply to any lawsuit against principals of the signatory corporation in connection with 

their work at the corporation). It was thus fully foreseeable to Bent that Zounds Inc. and 

Thomasson might seek to enforce the forum-selection clause in an action such as this.

Bent next argues that, even if all parties are bound by the forum-selection clause, the 

present action is outside the scope of the clause because Bent’s principal claims “arise under” 

New York Business Law, rather than the FAs. Bent Br. 9. That argument fails, because the 

forum-selection clause in the FAs expressly encompasses “any actions arising out of or related 

to this Agreement [or the Addendum],” except certain specified actions initiated by Zounds. FA 

¶¶ 22(D), (E); Addendum ¶ 17 (emphasis added). 

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That provision encompasses the claims here. “The Second Circuit has endorsed an 

expansive reading of the scope of forum-selection clauses, in keeping with the policy favoring 

their use.” Bluefire Wireless, Inc. v. Cloud9 Mobile Commc’ns, Ltd., No. 09 Civ. 7268 (HB), 

2009 WL 4907060, at *3 (S.D.N.Y. Dec. 21, 2009) (citing Roby v. Corp. of Lloyd’s, 996 F.2d 

1353, 1361 (2d Cir. 1993)). Such clauses have been construed broadly to encompass actions 

other than for breach of contract, as well as actions by non-signatories. See Roby, 996 F.3d at 

1361 (holding that forum-selection clause encompassing claims “relating to” and “in connection 

with” plaintiffs’ contracts covered their securities and RICO claims against non-signatories); 

Bense v. Interstate Battery Sys. of Am., Inc., 683 F.2d 718, 720 (2d Cir. 1982) (holding that 

antitrust claim “undoubtedly ar[ose] . . . from the agreement,” where the gist of plaintiff’s claim 

was that defendant wrongfully terminated the agreement). Moreover, courts in this District have 

consistently enforced forum-selection clauses similar to that here to transfer non-contractual 

claims in disputes relating to franchise agreements. See Luv2bfit, Inc. v. Curves Int’l, Inc., No. 

06 Civ. 15415 (CSH), 2008 WL 4443961, at *7 (S.D.N.Y. Sept. 29, 2008) (transferring 

franchisees’ claims of misrepresentation and violation of the NYFSA); G&R Moojestic Treats, 

Inc. v. Maggiemoo’s Int’l, LLC, No. 03 Civ. 10027 (RWS), 2004 WL 1110423, at *5 (S.D.N.Y. 

May 19, 2004) (transferring RICO, Sherman Act, Clayton Act, Robinson-Patman Act, and fraud 

claims based on forum-selection clause in franchise agreement). 

Here, the language of the forum-selection clause readily covers all of Bent’s claims—

each of which clearly relates to the FAs and Addendum. All four of Bent’s claims implicate the 

business relationship between Bent and Zounds under the FAs, not to mention Bent’s rights and 

Zounds’ obligations under the agreements. See Mortgage Resolution Servicing, LLC v. 

JPMorgan Chase Bank, N.A., No. 15 Civ. 0293 (LTS) (JCF), 2015 WL 6516787, at *3 

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(S.D.N.Y. Oct. 28, 2015) (plaintiff’s claims for conversion, tortious interference, fraudulent 

inducement, negligent misrepresentation and slander of title all “ar[o]se from the business 

relationship created by the [underlying contract],” and thus came under the forum-selection 

clause); Young Women’s Christian Ass’n of U.S., Nat. Bd. v. HMC Entm’t, Inc., 91 Civ. 7943 

(KMW), 1992 WL 279361, at *4 (S.D.N.Y. Sept. 25, 1992) (unfair competition and trademark 

infringement claims were within scope of forum-selection clause because resolution of the 

claims would “require consideration of the contract and of the parties’ respective rights pursuant 

to the contract”). Therefore, Zounds has satisfied all three requirements set forth by the Second 

Circuit in Phillips, 494 F.3d at 383, and the forum-selection clause is presumptively 

enforceable.4

4. Bent Has Not Rebutted the Presumption of Enforceability 

Once a forum-selection clause has been shown presumptively enforceable, a party 

seeking to invalidate that clause must “make a sufficiently strong showing that enforcement 

would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or 

overreaching.” Martinez, 740 F.3d at 217 (quoting Phillips, 494 F.3d at 383–84). 

Bent makes no such showing here. He does not argue, for instance, that the law to be 

applied in the District Court for Arizona is fundamentally unfair, or that trial there would be “so 

difficult and inconvenient that [Bent] effectively [would] be deprived of his day in court.” 

Phillips, 494 F.3d at 392. The inconvenience that traveling to Arizona might entail is not 

sufficient. See, e.g., Carnival Cruise, 499 U.S. 585, 594–95 (1991) (enforcing forum-selection 

 

4

 Because Bent and the three moving defendants are bound by the mandatory forum-selection 

clause in the FAs, as incorporated in the Addendum, the Court has no occasion to address 

whether the parties are also bound by the forum-selection clause in the Guaranties. 

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clause requiring Washington State residents to pursue their action in Florida); Effron, 67 F.3d at 

10 (“[A] forum is not necessarily inconvenient because of its distance from pertinent parties or 

places if it is readily accessible in a few hours of air travel.” (internal quotation marks and 

citation omitted)). 

Nor does Bent argue that the forum-selection clause is the product of fraud or 

overreaching. On the contrary, Bent, a self-described “successful businessman,” see Compl. ¶ 

10, was assisted by counsel in reviewing and negotiating the FAs and the Addendum. Zounds 

Br. 3; Essa Aff. ¶¶ 8–12. And allegations that a contract as a whole is tainted by fraudulent 

inducement are not enough to invalidate a forum-selection clause “where, as here, the plaintiff 

has not alleged fraudulent inducement with respect to the forum-selection clause itself.” Brodsky 

v. Match.com LLC, No. 09 Civ. 5328 (NRB), 2009 WL 3490277, at *3 (S.D.N.Y. Oct. 28, 2009) 

(citing Scherk v. Alberto–Culver Co., 417 U.S. 506, 519 n.14 (1974); Person v. Google, 456 F. 

Supp. 2d 488, 494 (S.D.N.Y. 2006); Mercury West A.G., Inc. v. R.J. Reynolds Tobacco Co., No. 

03 Civ. 5262 (JFK), 2004 WL 421793, at *4 (S.D.N.Y. Mar. 5, 2004)). Bent has, therefore, 

failed to make the “strong showing” of exceptional circumstances necessary to rebut the 

presumption of enforceability. 

B. Public Interest Considerations Do Not Outweigh the Enforceability of the 

Forum-Selection Clause 

Once the Court finds a forum-selection clause valid, presumptively enforceable, and not 

unreasonable or unjust, “the only remaining inquiry is whether there are public interest 

considerations . . . that weigh against its enforcement.” Midamines SPRL Ltd., 2014 WL 

1116875, at *3 (citing Atl. Marine, 134 S. Ct. at 581–82 & n.6). Such considerations are not 

present here. 

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Bent argues that New York’s interest in enforcing its laws—specifically, the NYFSA and 

the New York Attorney General’s ban of advance payments of franchise fees—outweighs 

application of the forum-selection clause here. However, as courts in this Circuit have 

repeatedly held, this interest is insufficient to overcome the presumptive enforceability of a 

forum-selection clause. 

As a threshold matter, New York—like the Second Circuit Court of Appeals—has a 

“strong public policy of enforcing forum-selection clauses so that parties are able to rely on the 

terms of the contracts they make.” Brodsky, 2009 WL 3490277, at *3 (citing Micro Balanced 

Prods. Corp. v. Hlavin Indus. Ltd., 667 N.Y.S.2d 1 (1st Dep’t 1997)) (emphasis in original); 

Roby, 996 F.2d at 1361. Courts in this Circuit have consistently held that New York’s interest in 

protecting its franchisees does not trump its policy of enforcing forum-selection clauses. See 

Luv2BFit, 2008 WL 4443961, at *3; Hellex Car Rental Sys. Inc. v. Dollar Sys., No. 04 Civ. 

5580, 2005 WL 3021963, at *5 (E.D.N.Y. Nov. 9, 2005) (“[T]here is no support for the 

argument that New York franchise law precludes New York franchisees from agreeing to litigate 

disputes in other fora.”). 

Luv2BFit is particularly on point. In that case, franchisees of Curves International, Inc. 

(“Curves”) brought claims against Curves for fraud and misrepresentation, including claims 

arising under the NYFSA. Luv2BFit, 2008 WL 4443961, at *2. Like Bent, the Curves 

franchisees sought to avoid enforcement of the forum-selection clause, which prescribed 

litigation in a Texas forum, by citing New York’s policy interest in enforcing the NYFSA. Id. 

The court rejected that bid, concluding, after a thorough analysis of the history and purpose of 

the NYFSA, that enforcing a valid forum-selection clause “does not violate New York’s public 

policy to protect its citizens from being fraudulently induced into franchise agreements.” Id. at 

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*3. Here, too, the Court rejects Bent’s claim that New York public policy precludes enforcement 

of the forum-selection clause. 

The Court, therefore, holds that the forum-selection clause contained in the FAs is 

enforceable. 

CONCLUSION 

For the foregoing reasons, the Court holds that the forum-selection clause in the 

Franchise Agreements is valid and enforceable. The Court thus grants Zounds’ motion to 

transfer all claims against Zounds Hearing, Zounds Inc., and Thomasson to the District of 

Arizona. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 21. 

The Court is, however, mindful that there is a fourth defendant in this case, FranChoice, 

which is separate from the three defendants who have successfully pursued transfer of the claims 

against them. The interests of judicial efficiency would clearly be served were Bent’s claims 

against FranChoice also transferred from this District to the District of Arizona, as otherwise 

Bent’s claims arising out of the same controversy would proceed in two separate fora. 

The Court accordingly directs all parties to meet and confer within one week of this 

decision, to determine whether all parties consent to the transfer of Bent’s claims against 

FrancChoice to the District of Arizona. If there is not complete consent, all parties are directed 

to submit, within two weeks of this Order, briefs of up to 10 pages, setting out their views on the 

transfer of such claims, and addressing whether, in light of the transfer of the claims against the 

other defendants to the District of Arizona, Bent’s claims against FranChoice should be 

transferred there as well. The Court directs the parties to take account of the factors governing 

discretionary transfers, see, e.g., Robertson, 2011 WL 5175597, at *3, and the factors considered 

on motions to sever, see Deajess Med. Imaging, P.C. ex rel. Barry v. Geico Gen. Ins. Co., No. 03 

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