United States District Court, D. Idaho
TOBART H. SCHINDELBECK, Plaintiff,
JOHN W. BRUMBAUGH, Defendant.
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge.
pending before the Court is Defendant's Motion to Dismiss
(Dkt. 5). The parties have filed responsive briefing and the
motion is now ripe for the Court's consideration.
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 motion shall be decided on the record
before this Court without oral argument.
explained more full below, the Court grants the Motion in
part and denies it in part. The Court strikes the punitive
damages claim and directs Plaintiff to file an amended
complaint consistent with this decision.
October 10, 2017, Plaintiff, Tobart H. Schindelbeck, filed a
Complaint against Defendant, John W. Brumbaugh, in federal
district court. (Dkt. 1). Plaintiff alleges that he is a
citizen of Idaho and Defendant is a citizen of either
Washington or California. (Dkt. 1, ¶¶ 10-11.)
Plaintiff further alleges that Defendant retained him
pursuant to a Consulting Agreement in an effort to open
national-brand supplements retail store in Spokane,
Washington. (Dkt. 1, ¶¶ 2, 17.) Plaintiff's
claims against Defendant include: (1) breach of contract; (2)
fraud; (3) defamation; and (4) conversion. (Dkt. 1.)
Plaintiff seeks injunctive and equitable relief; (2)
compensatory damages; and (3) punitive damages.
parties do not dispute that Plaintiff's contract and tort
claims arise from or otherwise relate to the parties'
Consulting Agreement, which contains a choice-of-law and
forum-selection clause. “Governing Law. This AGREEMENT
shall be governed by and construed in accordance with the
laws of Idaho and each of the parties hereto agree[s]
irrevocably to conform to the jurisdiction of the Idaho
Courts.” (Dkt. 1-1.)
November 28, 2017, Defendant filed a Motion to Dismiss
Plaintiff's Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(2), and 12(b)(3) and Idaho Code
Section 6-1604(2). (Dkt. 5.) Defendant seeks to dismiss the
Complaint based on the forum-selection clause in the
parties' Contract and also because it includes a
premature request for punitive damages. (Dkt. 5-1.)
preliminary matter, a motion to dismiss under Rule 12(b)(3)
is the proper means for enforcing a contractual forum
selection clause. Argueta v. Banco Mexicano,
F.A., 87 F.3d 320, 324 (9th Cir. 1996). Unlike a
motion to dismiss for failure to state a viable claim under
Rule 12(b)(6), on a motion for improper venue under Rule
12(b)(3), the Court may consider supplemental written
materials and consider facts outside the pleadings to resolve
the motion. Id.; Murphy v. Scheider Nat'l,
Inc., 362 F.3d 1133, 1137 (9th Cir. 2004)). If the Court
determines that venue is improper, it may dismiss the case,
or, if the interests of justice so require, the Court may
transfer the case to any district in which it properly could
have been brought. 28 U.S.C. § 1406(a); Dist. No. 1,
Pac. Coast Dist., M.E.B.A. v. Alaska, 682 F.2d 797, 799
(9th Cir. 1982).
Venue is Appropriate in the Idaho Federal District
parties dispute whether the choice of venue provision in the
Consulting Agreement requires the case be filed in Idaho
state court. The provision states that “each of the
parties hereto agree[s] irrevocably to conform to the
jurisdiction of the Idaho Courts.” (Dkt. 1-1.) The
issue is whether “Idaho Courts” refers only to
the state courts in Idaho or if it includes both the federal
and state courts in Idaho.
primary aim in interpretation of all contracts is to
ascertain the mutual intent of the parties at the time the
contract was made.” Opportunity, L.L.C. v.
Osserwarde, 136 Idaho 602, 607, 38 P.3d 1258, 1263
(2002). “In determining the intent of the parties, the
Court must view the contract as a whole.” Bakker v.
Thunder Spring-Wareham, LLC, 141 Idaho 185, 190, 108
P.3d 332, 337 (2004).
the contract is unambiguous, the intent of the parties can be
ascertained from the language of the agreement.
Opportunity, L.L.C., 136 Idaho at 607, 38 P.3d at
1263. (“If possible, the intent of the parties should
be ascertained from the language of the agreement as the best
indication of their intent.”) A contract is ambiguous
if the intent of the parties cannot be ascertained from the
language of the agreement and “intent becomes a
question of fact to be determined in light of extrinsic
evidence.” Id. “Whether a contract is