United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. Lodge, United States District Judge.
before the Court are Syngenta Seed, LLC's Motion to
Transfer Pursuant to 28 U.S.C. § 1404(a) (“Motion
to Transfer”) (Dkt. 6); Plaintiff's Motion to
Strike Declaration of Mark Smith in Support of Defendant
Syngenta Seeds, LLC's Motion to Transfer Pursuant to 28
U.S.C. §1404(a) (“Motion to Strike Smith
Declaration”) (Dkt. 10); and Plaintiff's Motion to
Strike Declaration of Jose “Joe” Bengochea in
Support of Defendant Syngenta Seeds, LLC's Motion to
Transfer Pursuant to 28 U.S.C. § 1404(a) (“Motion
to Strike Bengochea Declaration”) (Dkt. 14). These
motions are now ripe for decision. Having fully reviewed the
record herein, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and
because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the motions shall be decided on the record before the Court
without oral argument.
AND PROCEDURAL BACKGROUND
10, 2017, Plaintiff Vincent Farms, Inc. (“Vincent
Farms”) initiated these proceedings by filing a lawsuit
against Defendant Sygenta Seeds, LLC (“Sygenta”)
in the Fifth Judicial District of Idaho, Twin Falls County.
(Dkt. 1-1, Ex. 1, Complaint.) Syngenta then filed a timely
Notice of Removal to this Court pursuant to 28 U.S.C.
§§ 1332, 1441, and 1446. (Dkt. 1.)
Vincent Farms is an Idaho corporation with its principal
place of business in Idaho. (Dkt. 1-1.) Vincent Farms is
engaged in farming operations in Twin Falls County, Idaho.
Defendant Syngenta is a Delaware Limited Liability Company
registered to do business in Idaho with its principal place
of business in Minnesota.
Farms raised Sugar Hart seed peas for Syngenta during the
2016 crop year pursuant to a valid and existing contract
between the parties (“Contract”). The Contract
required that the Sugar Hart snap peas raised by Vincent
Farms satisfy a germination percentage requirement of 85%.
Farms alleges that it complied with the terms of the Contract
by raising the seed peas and delivering them to Syngenta with
a germination percentage rate of 87%. Nevertheless, Syngenta
rejected the delivery on the basis that the seed peas did not
satisfy the 85% germination requirement.
Farms claims that Syngenta breached the Contract by refusing
to accept and pay for the Sugar Hart snap peas. Vincent Farms
further claims that Syngenta was negligent in its performance
of its duty to prepare the Sugar Hart seed peas for testing.
Vincent Farms seeks $283, 006.08 in economic damages plus
prejudgment interest and attorneys fees.
August 30, 2017, Syngenta filed its Motion to Transfer
premised on a forum selection clause it contends is contained
in the Contract. (Dkt. 6.) In support of the Motion, Syngenta
proffered the Declaration from Mark Smith, Syngenta's
litigation counsel. (Dkt. 6-1). Attached to the Declaration
are two documents that Mr. Smith attests to represent the
parties' written Contract: (1) a “Production
Services Agreement” dated March 1, 2016 and (2) a
“Schedule of Supplemental Terms and Conditions for Peas
and Green Bean Seed Production” dated March 15, 2016
(“Schedule of Supplemental Terms.”) (Dkt. 6-2.)
September 20, 2017 Vincent Farms filed its responsive brief
in opposition to the Motion to Transfer (Dkt. 11), the
Declaration of John C. Peterson (Dkt. 11-1), and a Motion to
Strike (Dkt. 10). Vincent Farms argues that Syngenta's
Motion to Transfer should be denied because it is based on
the existence of a forum selection clause that is contained
in a document that Syngenta has not proven to be part of the
Contract. (Dkt. 11). Further, Vincent Farms' counsel,
John C. Peterson attests that, before filing this lawsuit,
his own personal knowledge as to what constituted the
parties' Contract was limited to the Schedule of
Supplemental Terms (Dkt. 11-1, ¶ 4.) According to Mr.
Peterson, it was only after he filed the lawsuit that he
learned of the existence of the Production Services
Agreement. (Dkt. 11-1, ¶¶5-6.)
basis for the Motion to Strike Smith Declaration, Vincent
Farms argues that the documents attached to that declaration
are hearsay and defense counsel, Mark Smith, lacks personal
knowledge to authenticate them properly. (Dkt. 11). In reply,
Syngenta proffers the Declaration of Jose “Joe”
Bengochea. (Dkt. 12- 2). Mr. Bengochea attests that he was a
field representative for Syngenta at the time the Contract
was executed and has personal knowledge of the written
documents that constitute the parties' agreement. (Dkt.
12-2, ¶1-2). Mr. Bengochea further attests that he
witnessed Mr. Roger Vincent sign both the Production Services
Agreement and the Schedule of Supplemental Terms. (Dkt. 12-2,
addition, Syngenta requested that the Court take Judicial
Notice of Vincent Farms's 2016 Annual Report filed with
the Idaho Secretary of State. (Dkt. 12-3.) In that annual
Report, Mr. Vincent is identified as the President and
Registered Agent for Vincent Farms. (Dkt. 12-3.)
Farms filed a Motion to Strike Bengochea Declaration solely
on the basis that the Bengochea Declaration is untimely.
(Dkt. 14). Vincent Farms argues that the Declaration should
have been filed and served at the same time as the motion.
has set forth the declarations of Mr. Smith and Mr. Bengochea
in an effort to create a record regarding the existence of
two written agreements that constitute the parties'
Contract. Vincent Farms seeks to strike these declarations
but also offers an affidavit from counsel with the same two
documents attached thereto. For the reasons set forth below,
the Court denies both motions to strike.
Motion to Strike Smith Declaration is Denied.
Farms argues that the Smith Declaration should be stricken
because the documents attached are hearsay and also that
counsel lacked personal knowledge to authenticate the
documents. In response, Syngenta both argued that the Motion
to Strike is improper and provided a second declaration from
one of its employees who witnessed Mr. Vincent sign the
documents in question.
contracts do not constitute hearsay. “Hearsay” is
“a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Fed.R.Civ.P.
801(c). “[O]ut of court statements that are offered as
evidence of legally operative verbal conduct are not hearsay.
They are considered ‘verbal acts.'”
United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.
2004) (citing Stuart v. UNUM Life Ins. Co. of
America, 217 F.3d 1145, 1154 (9th Cir. 2000) (insurance
policy); United States v. Arteaga, 117 F.3d 388,
395-98 (9th Cir. 1997) (money wire transfer forms)). Because
a contract is “a legally operative document that
defines the rights and liabilities of the parties in this
case, ” it is excluded from the definition of hearsay.
See Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d at
1154 (citing United States v. Bellucci, 995 F.2d
157, 161 (9th Cir.1993); United States v. Rubier,
651 F.2d 628, 630 (9th Cir. 1981)).
Vincent Farms suggests that Mr. Smith cannot authenticate the
documents attached to the declaration because he lacks
personal knowledge regarding the creation and execution of
the agreements. In response, Syngenta offered the declaration
of Mr. Bengochea who does have personal knowledge of the
documents. In addition, Vincent Farms' counsel submitted
the same ...