## Facts

- DTE Energy Technologies, Inc. (DTE) was a Michigan corporation that negotiated to sell electric generator systems for use in a construction project at Hoag Memorial Hospital Presbyterian (Hoag) in California.
- Hoag’s general contractor instructed DTE to negotiate the sale through a project subcontractor rather than directly with Hoag.
- Briggs Electric, Inc. (Briggs), a California corporation, won the subcontract and became responsible for procuring the generator systems.
- On October 21, 2003, Briggs sent DTE a purchase order requesting generator systems; Briggs treated the purchase order as its offer.
- On November 10, 2003, DTE forwarded Briggs an email that DTE’s president had previously sent to Hoag, indicating DTE’s intent to accept the offer reflected in Briggs’s purchase order.
- On December 4, 2003, DTE sent Briggs an order acknowledgment. Attached were DTE’s standard terms, including a forum-selection clause requiring disputes to be resolved under Michigan law in a Michigan court.
- The forum-selection clause was not included in Briggs’s purchase order, and Briggs maintained it did not agree to that clause.
- After the parties’ dispute developed, DTE sued Briggs in Michigan for breach of contract seeking payment for generator systems (about $880,000).
- Briggs pursued dispute resolution in California, including a demand for mediation and an action in California seeking a declaration of the parties’ rights and obligations.

## Issues

1. Under U.C.C. § 2-207, was the parties’ contract formed by Briggs’s purchase order and DTE’s November 10 acceptance/conduct, or by DTE’s December 4 order acknowledgment containing standard terms?
2. If the contract was formed before DTE sent its standard terms, did DTE’s forum-selection clause become part of the contract as an additional term, or was it excluded because it materially altered the agreement absent Briggs’s express assent?
3. If the forum-selection clause was not part of the contract, could a Michigan court exercise personal jurisdiction over Briggs based on the remaining contacts?

## Decision

- The court treated Briggs’s October 21 purchase order as the offer and concluded DTE accepted it before sending the December 4 order acknowledgment.
- The court characterized DTE’s December 4 acknowledgment and standard terms as a later written confirmation that proposed additional terms, including the forum-selection clause.
- The court held the forum-selection clause did not become part of the contract because it materially altered the agreement and Briggs did not expressly agree to it.
- Without an enforceable Michigan forum-selection clause, the court concluded Briggs’s Michigan-related contacts tied to the transaction were insufficient to support personal jurisdiction.
- The court dismissed DTE’s Michigan action.

## Legal Principles

- Under U.C.C. § 2-207, a contract for the sale of goods may be formed by an offer and acceptance (including acceptance shown through communications or performance) even when later documents contain extra boilerplate terms.
- When merchants exchange forms, a later writing that confirms an already-formed deal generally operates as a confirmation; new boilerplate provisions are treated as “additional terms” analyzed under U.C.C. § 2-207(2).
- An additional term that would cause surprise or impose meaningful hardship—such as a clause shifting dispute resolution to a distant forum—may be a material alteration and does not become part of the contract without express agreement.
- A forum-selection clause that is not part of the parties’ contract cannot be used to supply consent to jurisdiction or to establish a contractual basis for litigating in the chosen forum.
- Personal jurisdiction requires sufficient forum-directed conduct by the defendant; a single out-of-state purchase transaction and related communications may be inadequate without more substantial ties.

## Conclusion

The court concluded that the parties formed a contract based on Briggs’s purchase order and DTE’s earlier acceptance, making DTE’s later order acknowledgment a confirmation that added proposed terms. Because the Michigan forum-selection clause materially changed the bargain and lacked Briggs’s express agreement, it was not part of the contract; absent that clause, Briggs did not have enough Michigan contacts for personal jurisdiction, so the Michigan action was dismissed.


DTE Energy Technologies, Inc. v. Briggs Electric, Inc., 2007 WL 674321 (2007)