JACKSON TUBE SERVICE INC v. GUELPH MANUFACTURING GROUP (2025)

ORDER: (1) DENYING DEFENDANT'S MOTION TO DISMISS FOR FORUM NON CONVENIENS; AND (2) REFERRING THIS CASE TO MAGISTRATE JUDGE PETER B. SILVAIN, JR. FOR ONE OR MORE MEDIATION STATUS CONFERENCES

The parties in this case enjoyed mutually lucrative business dealings until unexpected circumstances beyond their control ended their alliance. See Doc. No. 3 at PageID 19-23. This allegedly left Plaintiff Jackson Tube Service, Inc. (“Jackson Tube”) holding more than $1,000,000 worth of obsolescent steel without reimbursement from Defendant Guelph Manufacturing Group (“GMG”). See id. Jackson Tube, an Ohio corporation with its principal place of business in Piqua, Ohio, brings this case asserting two claims—breach of contract and promissory estoppel—against GMG, a Canadian corporation with its principal place of business in Guelph, Ontario. Id. at PageID 18-23. Jackson Tube seeks to recover over $1,000,000 in damages. Id. at 23.

The case is before the Court upon GMG's motion to dismiss for forum non conveniens pursuant to 28 U.S.C. § 1404(a) (Doc. No. 22), Jackson Tube's memorandum in opposition (Doc. No. 34), and GMG's reply (Doc. No. 35).¹ For the reasons that follow, the Court denies the motion.

I.

A. Plaintiff's Complaint

Jackson Tube is a manufacturer of tubular steel products. Doc. No. 3 at PageID 18. Its customers include, among others, GMG. GMG's primary business includes fabricating steel tubing to supply products to United States automotive companies. Id.

In 2018, GMG began discussing with Jackson Tube its need to obtain specialty steel for incorporation into certain automotive seats. Id. at PageID 19. “After months of discussion, the parties consummated an arrangement, commencing in September of 2019, where by Jackson [Tube] would provide tubular steel needed by [GMG] in order to commence its production for its automotive customers.” Id. The result: a “specialty steel agreement” that the parties apparently executed on September 14, 2019.² Doc. No. 3-1 at PageID 24. This form document, under Jackson Tube's heading, confirms that GMG selected Jackson Tube as its “tubular supplier,” and sets forth, in part, the amount (45,000 pounds) of a specific “Grade Material” at a specific cost (“$62.92 CWT”) due in late November. Id.

It appears that for the first year or so GMG ordered tubular steel products and Jackson Tube fulfilled GMG's orders. See Doc. No. 3 at PagID 19, ¶s 10-11. However, once the COVID-19 pandemic began, steel production in the United States fell, and Jackson Tube needed to look overseas to obtain enough steel to fulfill GMG's orders. Id. at ¶ 12. According to Jackson Tube, “At all pertinent times, [GMG] was apprised of this situation, and authorized the ordering of overseas steel.” Id. at ¶ 13.

In December 2020, GMG “updated its forecast for production and warned Jackson [Tube] that there would be issues with the start of production if there was any slippage in the delivery of steel. Additionally ․, [GMG] was constantly advising Jackson [Tube] of the potential penalties and costs that could be assess against Jackson for failing to meet [GMG's] projected timeline and tonnage demands.” Id. at PageID 20, ¶15.

In early January 2021, as the COVID-19 virus continued to spread, Jackson Tube advised GMG that steel mills were not accepting new orders and “deliveries [of steel] were being extended out. Jackson [Tube] suggested that in order to meet [GMG's] demands, orders be placed out for six [6] months.” Id. GMG “agreed to Jackson [Tube's] deviation request for similar grade steel to support its steel supply, and directed they proceed with the ordering.”³ Id. A few days later, Jackson Tube informed GMG “that 420,000 pounds of additional steel had been placed for June delivery.” Id. On February 18, 2021, GMG advised Jackson Tube “that its forecast was for 4,000 pieces each week, through the second half of 2021.” Id. Jacson Tube alleges, “Jackson [Tube] did as [GMG] instructed by placing overseas orders in order to ensure the availability of the material required by [GMG].” Id. at ¶ 21. During early 2021, GMG ordered from Jackson Tube over 2,000,000 pounds of steel. Id. at PageID 21, ¶ 24.

However, in or around April 2021, GMG's need for steel began to decrease and, consequently, GMG changed its forecast demand and notified Jackson Tube. See id. at ¶s 26-27. In response, Jackson Tube “cancelled all cancelable orders that it could, including all materials that were due for delivery in November of 2021.” Id. at ¶ 27. Despite these cancellations, or attempts to cancel, Jackson Tube's steel suppliers required it to accept deliveries of steel pursuant to “prior orders placed by August 15, 2021.” Id. at ¶ 28. This led to Jackson Tube's present problem: It has on-hand more than 411,000 pounds of steel it “purchased and acquired based on [GMG's] specific projections and targets.” Id. at ¶ 29. According to Jackson Tube, this amounts to more than $1,000,000 of inventory ordered for GMG with GMG's approval, but GMG has “refused to reimburse Jackson Tube for the cost of the product purchased pursuant to its demands.” Id. at ¶s 30-31.

B. The Forum Selection Clause

GMG explains that to obtain tubular steel products from Jackson Tube, it would issue purchase orders. Doc. No. 22 at PageID 363 (citing Doc. 21-1 (Patterson Dep.) at PageID 182 (50:18-19)). The purchase orders GMG relies on note they are “Subject to [GMG] Terms & Conditions of Sales” (hereafter, “Terms & Conditions”). See, e.g., Doc. No. 22-4 at PageID 1009. GMG apparently submitted its Terms & Conditions to Jackson Tube together with its purchase orders.⁴ See Doc. No. 22-5 at PageID 1020, ¶1. Crucially for present purposes, the final (25th) paragraph of the Terms & Conditions contains the following provision:

CHOICE OF LAW AND JURISDICTION: The Buyer and Seller agree that the courts of Ontario, Canada shall have jurisdiction for all purposed [sic]. The International Sale of Goods Act shall not apply.

Id. at PageID 1022, ¶25 (emphasis in original).

GMG's purchase orders also note, “Subject to [GMG] Supplier Expectations Manual.” See, e.g., Doc. No. 22-4 at PageID 1009. This Manual does not contain forum-selection language, but it does note, “Orders are subject to ․” GMG's Terms & Conditions, including (in GMG's view) its “Choice of Law and Jurisdiction” provision. Doc. No. 22-6 at PageID 1040.

II.

A. The Parties’ Contentions

GMG contends that this case should be dismissed based on forum non conveniens because its purchase orders and its supplier expectation manual contain a mandatory, valid, and enforceable forum selection provision applicable to the claims at issue in this case. Doc. No. 22 at PageID 367-69.

Jackson Tube argues, in part, that the forum selection clause is not binding on it because it materially alters the terms of the parties’ original contract and did not become part of their contract. Doc. No. 24 at PageID 992-93. Jackson Tube also maintains that GMG's reliance on its purchase orders and Terms & Conditions is misplaced because GMG's purchase orders sought specific fabricated parts from Jackson Tube, not the raw, unfabricated steel Jackson Tube acquired on GMG's behalf. Id. This, to Jackson Tube, means GMG cannot rely on its purchase orders and Terms & Conditions to avoid Jackson Tube's promissory estoppel claim. Id. at PageID 993-94.

B. Applicable Law: Forum Non Conveniens

Pursuant to 28 U.S.C. § 1404, “[f]or 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 or to any district or division to which all parties have consented.” “This provision is ‘a mechanism for enforcement of forum-selection clauses that point to a particular federal district.’ ” Boling v. Prospect Funding Holdings, LLC, 771 Fed. App'x 562, 567 (6th Cir. 2019) (quoting Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 571 U.S. 49, 59 (2013)). If, as in the present case, “a forum-selection clause indicates that a matter should be heard by a state or foreign court, then forum non conveniens is the appropriate method of enforcement.” Id. (citing Atlantic Marine, 571 U.S. at 60-61).

“A forum selection clause should be upheld absent a strong showing that it should be set aside.” Wong v. PartyGaming Ltd., 589 F.3d 821, 828 (6th Cir. 2009) (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)); see VCST International B.V. v. BorgWarner Noblesville, LLC, 142 F.4th 393, 403 (6th Cir. 2025) (“Courts must generally give controlling weight to a valid forum-selection clause under the forum non conveniens doctrine.” (citing Atlantic Marine, 571 U.S. at 62-63)).

“ ‘A typical forum-non-conveniens analysis has three components: (1) the court determines the degree of deference owed the plaintiff's forum choice, and then asks if the defendant has met its burden of (2) showing an adequate alternative forum, and (3) showing that the plaintiff's chosen forum is unnecessarily burdensome based on a balancing of public-interest and private-interest factors. Lakeside Surfaces, Inc. v. Cambria Company, LLC, 16 F.4th 209, 214-15 (6th Cir. 2021) (citation modified; footnote omitted) (quoting Boling, 771 Fed. App'x at 568).

“The ‘calculus changes,’ however, when there is a valid and enforceable forum-selection clause.” Id. at 215 (quoting Atlantic Marine, 571 U.S. at 63; citing Boling, 771 Fed. App'x at 568 (“In Atlantic Marine, the Supreme Court concluded that an enforceable forum-selection clause alters this analysis ․”)). “In such cases, the plaintiff's choice of forum merits no weight and courts consider arguments only under the public-interest factors, treating the private-interest factors as weighing entirely in favor of the preselected forum.” Id. (citation modified) (quoting Atlantic Marine, 571 U.S. at 63-64). “The onus falls on the plaintiff to show that the public-interest factors defeat dismissal, and they rarely will.” Id. (citing Atlantic Marine, 571 U.S. at 64).

Before balancing the forum non-conveniens factors, “a court must first ․ determine whether a forum-selection clause is applicable to the claims at issue, mandatory, valid, and enforceable.” Id. (citing Azima v. RAK Inv. Auth., 926 F.3d 870, 874-76 (D.C. Cir. 2019) (noting that the preliminary question is whether a forum-selection clause is “applicable, mandatory, valid, and enforceable,” after which the court then “weigh[s] ․ the public- and private-interest [forum-non-conveniens] factors”)). “An answer of ‘yes’ to all those questions means Atlantic Marine’s modified forum-non-conveniens analysis applies and the plaintiff bears the burden of showing that the public factors weigh heavily against dismissal; an answer of ‘no’ to any of them means the traditional forum-non-conveniens analysis applies instead.” Id. at 216.

C. Analysis

GMG contends that the forum selection provision in its purchase orders and Terms & Conditions is mandatory, rather than permissive, “as evidenced by its use of the term ‘shall.’ ” Doc. No. 22 at PageID 368. GMG emphasizes, “ ‘According to the Sixth Circuit, words like ‘shall’ and ‘exclusive’ indicate a mandatory, rather than permissive, forum-selection clause.’ ” Id. (quoting Advanced Critical Devices, Inc. v. Boston Sci. Corp., No. 1:21-CV-02227, 2022 WL 1266117, at *5 (N.D. Ohio April 4, 2022) (discussing General Elec. Co. v. G. Siempelkamp GmbH & Co., 29 F.3d 1095, 1099 (6th Cir. 1994))).

“A forum selection clause is mandatory if it clearly indicates that jurisdiction is proper only in the selected forum.” Advanced Critical Devices, 2022 WL 1266117, at *4. “The language of the forum-selection clause determines its scope, and ‘mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.’ ” Id. (citation modified). In contrast, “ ‘a permissive forum selection clause merely authorizes jurisdiction in the specified forum, but does not require that forum to be the exclusive venue for litigation.’ ” Id. (quoting Braman v. Quizno's Franchise Co., LLC, No. 5:07CV2001, 2008 WL 611607, at *6 (N.D. Ohio, Feb. 20, 2008)).

In the present case, as previously noted, GMG's forum selection provision states:

CHOICE OF LAW AND JURISDICTION: The Buyer and Seller agree that the courts of Ontario, Canada shall have jurisdiction for all purpose[s].

Supra, § II(B) (emphasis in original).

Contrary to GMG's contentions, its forum-selection language authorizes jurisdiction in the courts in Ontario, Canada without requiring those courts to be the exclusive venue for the parties’ disputes. Although the provision contains the mandatory “shall,” it is connected to “jurisdiction” without another term or other language indicating only the courts of Ontario have jurisdiction over the parties’ disputes. Further, when “shall have jurisdiction” is read together with its following phrase—“for all other purposes”—the language speaks broadly about the type of disputes that may be brought in the Ontario courts without hinting at exclusivity of venue. For these reasons, the forum selection language in the Terms & Conditions is therefore permissive, not mandatory. See Advanced Critical Devices, 2022 WL 1266117, at *4 (“a permissive forum selection clause merely authorizes jurisdiction in the specified forum, but does not require that forum to be the exclusive venue for litigation”); cf. First Solar, LLC v. Rohwedder, Inc., No. 3:04 CV 7518, 2004 WL 2810105, at **2-3 (N.D. Ohio Dec. 8, 2004) (finding the following forum-selection language to be permissive due to lack of exclusivity: “Rohwedder and First Solar consent to jurisdiction and venue of any state court situated in Hennepin County, Minesota or federal court situated in the District of Minnesota as a forum for resolution of disputes by and between Rohwedder and First Solar”).

GMG's reliance on the Sixth Circuit's reasoning in Siempelkamp, 29 F.3d at 1099 (Doc. No. 22 at PageID 368) is misplaced. In Siempelkamp, the Sixth Circuit found the following forum selection clause to be mandatory: “Place of jurisdiction for all disputes arising in connection with the contract shall be at the principal place of business of the supplier.” 29 F.3d at 1099. The Sixth Circuit explained:

“Because the clause states that ‘all’ disputes ‘shall’ be at Siempelkamp's [a German manufacturer's] principal place of business, it selects German court jurisdiction exclusively and is mandatory. See The Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 2, 15 (1972) (holding that forum selection clause stating that “any” dispute arising from a contract “must” be brought before a London court is binding on the parties, unless the clause is shown to be unreasonable or unjust). The clause is clear and should be enforced according to its terms.

Id. In contrast, GMG's forum-selection language does not contain the phrase “shall be at ․,” or otherwise indicate that “all disputes shall be at” (or “in”) the courts of Ontario. This is a critical distinction because the “all disputes” and “shall be at” phrases in Siempelkamp provided the forum selection clause with its exclusivity and mandate. See id. Similar exclusivity phrases or terms—for example, “all the parties’ disputes” shall be in the courts of Ontario; or “only” or “solely” the courts of Ontario have jurisdiction for all purposes; or the Ontario courts have “exclusive” jurisdiction for all purposes—is missing from GMG's forum selection provision.

GMG also argues that Ricketts v. hybris AG, No. 1:15 CV 277, 2015 WL 13679481 (N.D. Ohio June 19, 2015) is instructive because “[i]n Ricketts, the relevant provision established that jurisdiction ‘shall be Zug, Switzerland.’ ” Doc. No. 22 at PageID 368 (quoting Ricketts, 2015 WL 13679481, at *1). GMG, however, overlooks that the full forum-selection sentence at issue in Ricketts pinpoints the “sole” location of jurisdiction, stating, “Sole Place of jurisdiction shall be Zug, Switzerland.” 2015 WL 13679481, at *1. In this way, unlike GMG's forum selection provision, the language at issue in Ricketts was mandatory, not permissive, “because it identifie[d] the ‘sole place of jurisdiction’ as Zug, Switzerland.” Id. at *3.

D. Conclusion

GMG's forum selection provision is permissive, not mandatory, and consequently, the traditional forum-non-conveniens analysis applies. See Lakeside Surfaces, 16 F.3d at 216. The parties have yet to present the Court with their analysis of the traditional forum-non-conveniens analysis discussed above, supra, § II(B). See Doc. Nos. 22, 34, 35. Consequently, it would be premature to dismiss this case under the doctrine of forum non conveniens.

III.

Rule 16.3(a)(1) of the Southern District of Ohio Civil Rules provides, “Upon request by any party or in its discretion and at such times during the progress of the case as appear appropriate, the Court may assign any civil case that is not exempted hereunder for one or more mediation conferences.”⁵

The instant case has progressed to the point where referral for a mediation conference is appropriate because it may assist the parties in reaching a just, speedy, and less expensive resolution of their dispute, cf. Fed. R. Civ. P. 1, especially when compared to litigating the case through the summary-judgment stage followed by trial, if warranted, and appeal, if pursued. Consequently, pursuant to 28 U.S.C. § 636(c) and S.D. Ohio Civ. R. 16.3(a)(1), this case is hereby REFERRED to Magistrate Judge Peter B. Silvain for one or more mediation conferences. The Court ORDERS the parties to participate in good faith in the mediation conference(s).

The date for the mediation conference(s) shall be arranged directly with Judge Silvain.

IV.

For all the foregoing reasons, GMG's motion to dismiss for forum non conveniens is DENIED WITHOUT PREJUDICE, and this case is REFERRED to Judge Silvain for mediation.

IT IS SO ORDERED.

FOOTNOTES

1.   GMG properly and timely removed this case from state court based on this Court's diversity jurisdiction under 28 U.S.C. § 1332. Doc. No. 1 at PageID 1-2. The Court's sua sponte review of Jackson Tube's complaint (Doc. No. 1), reveals that the requirements of diversity jurisdiction are satisfied at this stage of the litigation. See Doc. No. 3 at PageID 18, 23; see also 28 U.S.C. § 1332(a); Olwin Metal Fabrication, LLC v. MultiCam, Inc., 631 F.Supp.3d 485, 487 (S.D. Ohio 2022) (The Court has “an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010))).

2.   This date appears in difficult-to-read handwriting on this single-page document. See Doc. No. 3-1 at PageID 24.

3.   This “deviation request” concerned the “grade of steel” Jackson Tube needed to send to GMG. Doc. No. 20 at PageID 20. The complaint suggests, but is not clear, about whether this deviation request was part of Jackson Tube's request for GMG to place steel orders with Jackson Tube six months out. See id.

4.   This is suggested in the Terms & Conditions’ reference to purchase orders: “This purchase order constitutes an offer to buy goods or services according to the description and other terms set forth on its face and reverse side” (emphasis added).

5.   A case is exempt from a mediation conference when it is exempt from the initial disclosure requirements of Fed. R. Civ. P. 26(a)(1)(B). See S.D. Ohio Civ. R. 16.3(b). The instant case is not exempt from Rule 26(a)(1)(B)’s initial disclosure requirements and, as a result, it is not exempt from participating in the mediation conference(s) required by this Order. See id.

Michael J. Newman, United States District Judge