United States District Court, E.D. Wisconsin
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
case involves a dispute between manufacturer Hydratight, Inc.
(“Hydratight” or “defendant”) and one
of its sales representatives, Power Product Sales and
Service, Inc. (“Power Products” or
before the Court is the motion of Hydratight to transfer the
action to the United States District Court for the Eastern
District of Wisconsin pursuant to 28 U.S.C. § 1404(a)
(Docket Entry No. 11).
a Delaware corporation with its principal place of business
in Deer Park, Texas, manufactures industrial tools used in
several industries such as the maritime, nuclear power, oil
and gas, power generation, pulp and paper and refinery
industries. Hydratight is a wholly owned subsidiary of
Actuant Corporation which is headquartered in Wisconsin.
Power Products is a Massachusetts corporation with its
principal place of business in Walpole, Massachusetts.
1995, Power Products has been a sales representative of
Hydratight in the New England states and the Maritime
Provinces of Canada (collectively, “the
Territory”). In June, 2008, Power Products and
Hydratight entered into a Sales Representative Agreement
(“the Agreement”) under which Power Products is
responsible for “solicit[ing] and promot[ing] the sale
of” certain Hydratight products within the Territory.
In consideration, Hydratight pays Power Products commissions.
22 of the Agreement constitutes the following forum selection
The federal and state courts situated in Wisconsin shall
determine any claims, disputes, actions or suits which may
arise under or with respect to this Agreement or the purchase
and sale of Products, and each party hereby voluntarily
submits to the personal jurisdiction of such courts for such
Products filed a complaint against Hydratight in
Massachusetts Superior Court in June, 2019. Plaintiff avers
that defendant has “engaged in a surreptitious
campaign” to push Power Products out of the Territory
by moving to a direct sales model in some parts of the
Territory and dealing with a competitor in other parts. Power
Products further alleges that Hydratight terminated a line of
credit previously extended which “effectively
prohibit[ed] Power Product[s] from engaging in any sales
activity on Hydratight's behalf.” Hydratight
removed the action to this Court in July, 2019.
specifically asserts six counts: breach of contract (Count
I); breach of the implied covenant of good faith and fair
dealing (Count II); unjust enrichment (Count III); tortious
interference with contractual relations (Count IV); unfair
and deceptive practices in violation Mass. Gen. Laws c. 93A,
§ 11 (Count V); and failure to pay commissions in
violation of the Massachusetts Sales Representative Act,
Mass. Gen. Laws c. 104, § 9 (Count VI).
Motion to Transfer
appropriate procedure to enforce a forum selection clause in
a contract is to file a motion to transfer under 28 U.S.C.
§ 1404(a). Atl. Marine Constr. Co. v. U.S. Dist.
Court for W. Dist. of Tex., 571 U.S. 49, 58-59 (2013).
Under § 1404(a), a district court may transfer a civil
action to any other district where it might have been brought
“[f]or the convenience of parties and witnesses, in the
interest of justice.” 28 U.S.C. § 1404(a).
Atlantic Marine Construction Co., the United States Supreme
Court held that when a defendant files a motion to transfer
pursuant to a forum selection clause ...