United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
Netstandard, Inc. brought this action for breach of contract
and various torts against defendant Citrix Systems, Inc.,
claiming that software that plaintiff purchased from
defendant did not perform as advertised, causing damages
exceeding $4 million. Defendant filed Defendant Citrix
Systems, Inc.'s Motion to Transfer Venue Pursuant to 28
U.S.C. § 1404(a) (Doc. 30). The parties agreed to
conduct discovery relevant to the motion before completing
briefing. The motion is now ripe, and defendant has also
filed a related motion-Citrix Systems, Inc.'s Motion to
Strike Declaration of Walt Lane (Doc. 76). For the following
reasons, the court denies both motions.
wants this case heard in the Southern District of Florida.
Defendant bases its transfer request on a forum selection
clause contained in two End User License Agreements
(“EULAs”). Defendant argues alternatively that
(1) plaintiff's contract was subject to defendant's
EULAs or (2) plaintiff had notice that the software was
subject to the EULAs.
federal statute governing transfer of venue provides:
“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought.” 28 U.S.C. § 1404(a). The intent of
§ 1404(a) is to “place discretion in the district
court to adjudicate motions for transfer according to an
individualized, case- by-case consideration of convenience
and fairness.” Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991)
(citations omitted). “The party moving to transfer a
case pursuant to § 1404(a) bears the burden of
establishing that the existing forum is inconvenient.”
Id. at 1515 (citation omitted).
analysis, however, changes when a forum selection clause is
involved. A forum selection clause will be enforced, absent a
strong showing that transfer would be “unreasonable and
unjust, or that the clause was invalid for such reasons as
fraud or overreaching.” M/S Bremen v. Zapata
OffShore Co., 407 U.S. 1, 10, 15, (1972) (citation
omitted); Atl. Marine Const. Co. v. U.S. Dist. Court for
W. Dist. of Tex., 134 S.Ct. 568, 581 (2013) (“When
the parties have agreed to a valid forum-selection clause, a
district court should ordinarily transfer the case to the
forum specified in that clause.”). In fact, the Supreme
Court has gone so far as to state, “Only under
extraordinary circumstances unrelated to the convenience of
the parties should a § 1404(a) motion be denied.”
Id. Of course, this presupposes that the parties in
fact agreed to provisions including a forum selection
clause-something that plaintiff denies here. Plaintiff claims
that the EULAs were not part of the contract to purchase
software; instead, they were a request to amend the contract,
which plaintiff never accepted. And plaintiff further claims
that it had no notice that the EULAs would apply to this
contract. The court addresses each of these arguments below.
was the contract formed?
first question concerns when the contract was formed. The
Uniform Commercial Code (“UCC”) applies to the
sale of the software. See Wachter Mgmt. Co. v. Dexter
& Chaney, Inc., 144 P.3d 747, 750 (Kan. 2006)
(“Computer software is considered to be goods subject
to the UCC even though incidental services are provided along
with the sale of the software.”). Under Kan. Stat. Ann.
§ 84-2-204, a contract for the sale of goods is formed
“in any manner sufficient to show agreement, including
conduct by both parties which recognizes the existence of
such a contract.” Wachter, 144 P.3d at 751.
there are several key events evidencing when plaintiff
entered into the contract to purchase software through Redapt
(who was defendant's authorized reseller).
• June 25, 2013: Quote from Redapt to Leo Hart
(plaintiff s employee) for $101, 155.
• June 28, 2013: Mr. Hart told defendant and
Redapt that plaintiff needed a 35% discount on the software
if they were going to complete the purchase.
• June 28, 2013: Second quote from Redapt to
Mr. Hart for $93, 325. The quote included an itemized list of
software, including the quantity, time period for execution,
and cost for incidental maintenance. Although this quote was
dated June 28, plaintiff did not receive it that day.
• June 28, 2013: Christopher Austin, an
employee of defendant, emailed Mark Herron (Redapt's V.P.
for Technology Solutions) and Mr. Hart (with plaintiff) to
state that he did get the 35% discount that plaintiff
requested on the products, but said that defendant would not
discount maintenance beyond 25%. Mr. Austin encouraged Mr.
Hart to “work out the numbers with Mark [Herron
(Redapt)] and get the [purchase order] over to Redapt as soon
• June 28 or 29, 2013: Mr. Herron received
notification by e-mail and a phone call that plaintiff had
agreed to purchase the software.
• June 29, 2013: Defendant claims that Ingram
(the distributor) registered plaintiff for the purchase of
the software in defendant's system under the Enterprise
License Program. Defendant claims that this would have
automatically generated a Registration Notice to Mr. Hart,
which notified him that placing a purchase order with Redapt
constituted an acceptance of the EULAs, with a direct
hyperlink to the EULAs.
• June 29, 2013: Defendant sent Mr. Hart the
Citrix License Access Code Delivery email, which contained
the License Access Code that allowed plaintiff to download
the software. The email says, “Dear Citrix Customer,
Thank you for your recent purchase.” Testifying in a
deposition about this email, Steward Byrne (defendant's
corporate counsel for all commercial transactions in the
Americas) stated that “the purchase had already
occurred.” Although there is no evidence showing the
date that plaintiff ...