United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Kamtel, Inc. is suing defendant Bore Tech Construction, LLC
for breach of contract and tortious interference with
existing and prospective contracts relating to a subcontract
under which Bore Tech agreed to provide construction services
to Kamtel on several of its projects. Kamtel is relying on
diversity of citizenship, 28 U.S.C. § 1332 as a basis
for subject matter jurisdiction, and a forum selection clause
in the parties' agreement as a basis for personal
jurisdiction. Dkt. #1.
months before Kamtel filed this case, Bore Tech filed its own
breach of contract action in a state court in Texas. After
filing both an answer in the Texas action and its complaint
in this court, Kamtel sought to enforce the forum selection
clause by asking the state court to transfer its case to this
court, or in the alternative, dismiss the Texas lawsuit. The
state court denied both motions.
the court are Bore Tech's motions to dismiss this case
under Fed.R.Civ.P. 12(b)(1)-(3) and (6) for improper venue,
lack of personal and subject matter jurisdiction and failure
to state a claim upon which relief can be granted on the
ground that the forum selection clause is invalid and the
parties' dispute is being litigated in state court. Dkt.
##11-13. Alternatively, Bore Tech asks the court to
“abate” or stay this case pending the outcome of
the Texas case, dkt. #11, or transfer the case to the United
States District Court for the Southern District of Texas
pursuant to 28 U.S.C. § 1404 or § 1406(a). Dkt.
reasons stated below, I conclude that Bore Tech has failed to
show that dismissal is warranted under any subsection of
Fed.R.Civ.P. 12(b). However, in light of the ongoing
litigation in Texas involving the same contract, Kamtel's
delay in asserting the forum selection clause in that case
and general concerns with judicial administration, I will
grant Bore Tech's motion to stay proceedings in this case
pending a final judgment in the Texas lawsuit. Because I am
granting a stay, it is unnecessary to consider Bore
Tech's motion to transfer this case to the Southern
District of Texas, which it made only in the alternative to
its request for a stay.
following facts are drawn from Kamtel's complaint and the
parties' subcontract. I also refer to the parties'
filings in the Texas case and the order entered by the state
Kamtel, Inc. is a Wisconsin corporation with its principal
place of business in Wisconsin Rapids, Wisconsin. It is a
general contractor for telecommunications providers and its
services include the placement and repair of buried and
aerial cables across the Unites States. Defendant Bore Tech
Construction, LLC is a Texas limited liability company that
provides general construction contracting services. Bore Tech
has its principal place of business in Houston, Texas, and
only one member, Stacia George, a citizen of Texas.
approximately thirty years, Kamtel has contracted with
AT&T Inc. and its predecessors and affiliates to perform
outside plant engineering, construction management, right of
way acquisition and cable splicing, installation, and repair
throughout the United States. Dkt. #1 at ¶ 7. In early
2014, Bore Tech approached Kamtel and proposed that Kamtel
hire Bore Tech as its subcontractor on jobs for AT&T.
Id. at ¶ 9. On June 14, 2014, Kamtel and Bore
Tech entered into a written agreement under which Bore Tech
would serve as a subcontractor on Kamtel's AT&T
projects, supplying labor, equipment and materials for cable
placement. Id. at ¶ 11; dkt. #15, exh. #6. The
agreement contained a Wisconsin choice of law provision and a
forum selection clause, which provides that any lawsuit
arising from the parties' contractual relationship would
be litigated exclusively in the State of Wisconsin. Dkt. #15,
exh. #6 at ¶ 20.
in the fall of 2015, Kamtel became dissatisfied with Bore
Tech's performance. The parties failed to repair their
relationship, and Kamtel terminated the subcontract in March
2016. Dkt. #1 at ¶¶ 15-30. This action led to a
small cascade of court filings.
16, 2016, Bore Tech filed suit in the state district court
for Harris County, Texas, alleging claims of breach of
contract, unjust enrichment and quantum merit against Kamtel.
Dkt. #15, exh. #1. AT&T filed an interpleader claim and
deposited funds in the state court's registry. Dkt. #18,
exh. #1. See also Heggy v. American Trading Employee
Retirement Account Plan, 123 S.W.3d 770, 775 (Tex. App.
2003) (“A party faced with competing claims obtains a
discharge of liability to the competing claimants by
interpleading the funds.”). In addition, two other
companies intervened in the lawsuit to collect funds owed to
them by either Kamtel or Bore Tech, depending on who was
found liable for the invoices under the parties'
agreement. Dkt. #18, exh. ##2-3. Kamtel filed an answer and
general denial on July 1, 2016, but it did not assert any
counterclaims or mention the forum selection clause in its
pleading. Dkt. #15, exh. #2.
September 16, 2016, Kamtel filed its lawsuit in this court,
alleging claims against Bore Tech for breach of contract and
tortious interference with existing and prospective
contracts. Dkt. #1. Three days later, Kamtel filed a motion
in the Texas state court to transfer Bore Tech's case to
Wisconsin based on the forum selection clause in the
parties' agreement or, in the alternative, dismiss the
case. The Texas court denied Kamtel's motion as
“not meritorious” in a one-sentence order. Dkt.
#15, exh. #5. At a hearing on the motion, the state court
explained that there was no authority for a district court in
Texas to transfer a case to a federal district court in
Wisconsin. Hrg. Tr. (Oct. 21, 2016), dkt. #18, exh. #4 at p.
6. The state court also made the following finding:
I understand you have [a] forum selection clause. I don't
think it is unreasonable to litigate this case in Texas in
this court because it would be unreasonable to require [the
intervening] parties to be dismissed and have to file
Id. at p. 17.
MOTION TO DISMISS
Tech has moved to dismiss this case for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1), lack of
personal jurisdiction under Rule 12(b)(2), improper venue
under Rule 12(b)(3) and failure to state a claim under Rule
12(b)(6). Because Bore Tech mentions 12(b)(6) only in a
footnote, dkt. #15 at 2 n. 1, and fails to advance any
argument about why Kamtel's complaint fails to state a
claim upon which relief may be granted, it has waived the
argument. Wehrs v. Wells, 688 F.3d 886, 891 n. 2
(7th Cir. 2012) (undeveloped and unsupported arguments are
considered waived); Puffer v. Allstate Insurance
Co., 675 F.3d 709, 718 (7th Cir. 2012) (undeveloped
arguments and arguments unsupported by pertinent authority
are waived). Bore Tech makes a similarly conclusory statement
that this case should be dismissed for lack of subject matter
jurisdiction, but does not challenge Kamtel's assertion
of subject matter jurisdiction on the basis of diversity of
citizenship under 28 U.S.C. § 1332, and no defect is
apparent. § 1332 (“[D]istrict courts shall have
original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75, 000 . . . and
is between . . . citizens of different States.”);