United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE
Roberts Irrigation Company, Inc. (“Roberts”) has
sued defendants Hortau Corp. and Hortau, Inc. (collectively,
“Hortau”) under theories of unjust enrichment and
breach of contract for damages arising from Hortau’s
alleged breach of a distribution agreement. Citing to an
arbitration clause in a distribution agreement between
Roberts and Hortau Inc., Hortau has moved under Fed.R.Civ.P.
12(b)(3) to dismiss or stay this action and to compel Roberts
to arbitrate pursuant to the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 1, and the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, 9
U.S.C. § 201 et seq. See Dkt. 13. In the
alternative, Hortau moves to dismiss this case for lack of
personal jurisdiction or under the doctrine of forum non
conveniens. Because I find that Hortau has failed to
show that the parties had a written arbitration agreement
that applies to the instant dispute, and that there is no
merit to its jurisdiction and inconvenient forum arguments,
the court is denying the motion in both parts.
preliminary matter requires court action: Roberts seeks
permission to file a sur-reply with respect to Hortau’s
contention that the arbitration clause survived expiration of
the parties’ 2008 Distribution Agreement, which Roberts
says was raised for the first time in Hortau’s reply
brief. Dkt. 19. Hortau objects, asserting that the argument
on which Roberts seeks to be heard was raised in
Hortau’s opening brief. Dkt. 20. Hortau is correct, but
only to a point. Hortau raised the argument briefly in its
opening brief, dkt. 14, at 9, but did not develop it in any
depth until its reply brief. It is only fair to allow Roberts
to respond to the more well-developed argument. Accordingly,
I am granting Roberts’s motion and will consider its
deciding a motion to dismiss, the court accepts all well-pled
factual allegations in the complaint as true, Adams v.
City of Indianapolis, 742 F.3d 720, 728 (7th
Cir. 2014), and views them in the light most favorable to
plaintiff as the non-movant, Santiago v. Walls, 599
F.3d 749, 756 (7th Cir. 2010).
Roberts Irrigation Company is a Wisconsin corporation with
its principal place of business in Plover, Wisconsin. Roberts
is engaged in the business of contracting, installing and
selling agricultural irrigation products.
Hortau, Inc. is a Canadian corporation with its principal
place of business in Lévis, Quebec. Defendant Hortau
Corp. is a Delaware Corporation with its principal place of
business in California. Hortau, Inc. and Hortau Corp. are in
the business of providing goods and services for use in the
agriculture industry. Hortau Corp. is an authorized agent of
Hortau, Inc. in its dealings with Roberts.
and Hortau, Inc. entered into a “Distribution
Agreement” on or about February 15, 2008. Amended
Complaint, dkt. 10, exh. A. The Agreement contains an
arbitration provision, § 20, which states:
Any dispute which arises in the course of or following the
performance of the present contract will be definitively
settled under the auspices of the Canadian Commercial
Arbitration Center, by means of arbitration and to the
exclusion of courts of law, in accordance with its General
Commercial Arbitration Rules in force at the time this
contract is signed and to which the parties declare they have
parties further agreed that the agreement would be
“construed and interpreted according to the laws of the
province of Quebec, Canada, and the laws of Canada applicable
therein.” § 17.
12.A of the Agreement is a termination provision which
The term of this Agreement shall begin and end as of the
dates indicated in Attachment “A.” Annual renewal
will be granted from year to year only through a new copy of
Attachment “A” duly executed by both Parties
prior to the date of termination.
“A” identified Roberts’ territory, minimum
inventory level and annual sales target and listed the
products and corresponding discount being offered by Hortau.
It also provided that, “[i]n reference with section 12
(Effective date and termination), this Agreement shall begin
on February 15th 2008 and shall terminate on April
30th 2009.” Section 15.B provides that
“[n]o change of any terms and conditions herein will be
valid unless in writing signed by an authorized
representative of each party.” The Distribution
Agreement expired by its terms on April 30, 2009, when the
parties failed to renew it. Am. Comp., ¶¶10-11.
However, the parties continued to do business with each
other. Under the terms of this “implied”
distributorship agreement, the parties agreed that: (1)
Roberts would continue to maintain a minimum inventory of the
products; (2) Roberts would makes sales of the products
within the same territory, (3) Roberts would market and
promote Hortau products within the same territory; (4)
Roberts would service the products within the same territory;
(5) Roberts would retain the exclusive right to sell Hortau
products in the same territory; and (6) Hortau would provide
products, payment, marketing materials and other related
support to Roberts. In addition, the parties agreed that
Hortau would pay Roberts 40% for its service of
alleges that Hortau has breached this implied distributorship
agreement by failing to pay service commissions or repurchase
inventory. In addition, it asserts that Hortau has been
unjustly enriched by performance under the agreement.
Id. at ¶¶ 25-40.
filed its complaint on November 30, 2015, in the Circuit
Court for Portage County, Wisconsin, naming only Hortau Corp.
as a defendant. On January 12, 2016, Hortau Corp. removed the
matter to this court, but objected to the court’s
personal jurisdiction on the ground of improper service. With
Hortau Corp.’s agreement, on March 14, 2016 Roberts
filed an amended complaint in which it added Hortau, Inc. as
a defendant. The Hortau defendants now move to dismiss ...