## Facts

- Ridgelawn Cemetery Association (Ridgelawn) ordered a large granite monument (about 54,000 pounds) from Granite Resources Corporation (GRC).
- After Ridgelawn placed the order (Aug. 27, 2010), GRC faxed Ridgelawn an order acknowledgment and also sent an invoice.
- GRC claimed that “terms and conditions” printed on the backs of those documents included a forum-selection clause requiring any dispute to be brought only in Wisconsin state courts.
- The fronts of the order acknowledgment and invoice did not mention any back-page terms or direct Ridgelawn to review additional terms.
- Ridgelawn admitted receiving the faxed order acknowledgment and the invoice, but alleged that neither contained any back-page terms and that it did not receive any copy of the documents with a forum-selection clause during contracting and performance.
- GRC delivered the monument in April 2011, and Ridgelawn paid in full.
- After installation, Ridgelawn alleged that the monument developed numerous cracks roughly three years later. GRC inspected and described the cracking as natural fissures and refused to replace the monument.
- Ridgelawn later alleged it first saw GRC’s written “terms and conditions” (including the forum clause) on December 16, 2015, when GRC provided a copy to Ridgelawn’s counsel.
- Ridgelawn filed a diversity action in the Northern District of Indiana asserting breach of contract and related claims, including fraud.
- GRC moved to dismiss or transfer based on the forum-selection clause and, alternatively, moved to dismiss the fraud claim under Federal Rule of Civil Procedure 9(b).

## Issues

1. Whether the action should be dismissed or transferred because a forum-selection clause allegedly printed on the backs of GRC’s forms required litigation exclusively in Wisconsin state court.
2. Whether Ridgelawn’s fraud allegations were pleaded with sufficient particularity to satisfy Rule 9(b).

## Decision

- The court denied GRC’s motion to dismiss or transfer based on the alleged forum-selection clause, finding GRC had not shown (at the pleadings stage) that the clause became part of the parties’ contract.
- The court denied GRC’s motion to dismiss the fraud claim, holding that the complaint alleged fraud with enough detail to meet Rule 9(b).

## Legal Principles

- A forum-selection clause is enforceable only if it is a term of the parties’ agreement; the party seeking enforcement bears the burden to show the clause was part of the contract.
- In a sale-of-goods dispute framed as a “battle of the forms” under U.C.C. § 2-207, additional terms in a confirmatory writing do not become contract terms if they materially change the bargain (such as by imposing a litigation forum that would cause surprise or hardship absent clear assent).
- Where the face of a form does not call attention to additional terms on the reverse side, and the receiving party plausibly alleges it never received the reverse-side terms, the court may decline to enforce the alleged term on a motion to dismiss or transfer because contract formation and assent are fact-bound.
- Rule 9(b) requires a fraud claim to plead the who, what, when, and how of the alleged misrepresentation and resulting reliance; transaction-specific allegations can be sufficient at the pleading stage even if disputed.

## Conclusion

The Northern District of Indiana refused to dismiss or transfer the case to Wisconsin because GRC did not establish that the alleged back-page forum-selection clause was part of the contract under the parties’ exchange of forms, and the court also allowed Ridgelawn’s fraud claim to proceed because it was pleaded with adequate Rule 9(b) specificity.


Ridgelawn Cemetery Association v. Granite Resources Corp., 2017 WL 3783401 (2017)