## Facts

- Ultraflex Systems of Florida, Inc. (Ultraflex) supplied materials used in digital printing, and Veritev Operating Company (Veritev) distributed those materials.
- The companies did regular business together for about 10 years, exchanging routine commercial documents such as purchase orders, sales order confirmations, and invoices.
- Veritev typically initiated transactions by sending electronic purchase orders that incorporated Veritev’s “Terms and Conditions of Purchase,” including Delaware governing-law and venue provisions.
- Ultraflex responded to Veritev’s purchase orders with sales confirmations that incorporated Ultraflex’s “Terms and Conditions of Sale,” including New Jersey governing-law and venue provisions.
- A dispute arose after Veritev sent several purchase orders, Ultraflex sent sales confirmations and delivered goods, and Veritev allegedly failed to pay certain invoices.
- Ultraflex filed a diversity breach-of-contract action in the United States District Court for the District of New Jersey, relying on its New Jersey forum language.
- Veritev asserted counterclaims tied to an allegedly defective order and an asserted failure to refund.
- Veritev moved to transfer the case to the District of Delaware under 28 U.S.C. § 1404(a) or, alternatively, to dismiss on forum non conveniens grounds, relying on Veritev’s Delaware forum-selection language contained in its purchase-order terms.
- The motion required the court to assess, in light of the parties’ exchanged forms and course of dealing, whether Veritev’s Delaware venue provision controlled and whether transfer or dismissal was warranted.

## Issues

1. In a merchant “battle of the forms,” did Veritev show that its purchase-order terms—especially its Delaware forum-selection provision—became part of the parties’ agreement governing this dispute?
2. If no enforceable Delaware forum-selection clause was established, did the ordinary § 1404(a) convenience and justice factors make the District of Delaware a clearly more appropriate forum than the District of New Jersey?
3. Was dismissal under forum non conveniens appropriate where the proposed alternative forum was another federal district court and the record did not show New Jersey was seriously inconvenient?

## Decision

- The court denied Veritev’s motion to transfer the action to the District of Delaware under 28 U.S.C. § 1404(a).
- The court denied Veritev’s alternative request to dismiss on forum non conveniens grounds.
- The court determined that Veritev had not carried its burden to justify transfer or dismissal based on its asserted Delaware venue provision and the overall record.

## Legal Principles

- When merchants exchange purchase orders and confirmations with conflicting boilerplate, U.C.C. § 2-207 guides whether additional or different terms become part of the contract; boilerplate provisions that materially change the deal (such as forum-selection and choice-of-law clauses) generally are not treated as automatically accepted without clear agreement.
- A party seeking transfer under 28 U.S.C. § 1404(a) bears the burden to show the transferee forum is clearly more convenient and that transfer serves the interests of justice.
- A valid, enforceable forum-selection clause can change the § 1404(a) analysis, but the party invoking such a clause must first show the clause is part of the parties’ agreement and applies to the dispute.
- In assessing § 1404(a) without a controlling forum-selection clause, courts weigh private factors (including the plaintiff’s forum choice, convenience of parties and witnesses, access to proof, and where events occurred) and public factors (including local interests and court administration).
- Forum non conveniens dismissal is generally disfavored when the alternative forum is another domestic federal court and transfer is available; dismissal requires a strong showing that the chosen forum is so inconvenient that keeping the case would be unjust.

## Conclusion

The District of New Jersey treated the parties’ exchanged purchase orders and sales confirmations as a classic battle-of-the-forms dispute and concluded that Veritev had not shown an enforceable Delaware forum-selection term that dictated transfer. Applying the ordinary § 1404(a) analysis, the court found New Jersey was a reasonable forum given the parties’ business connections and the record on convenience, and it therefore denied both transfer to Delaware and dismissal for forum non conveniens.


Ultraflex Systems of Florida v. Veritev Operating Co., 2019 WL 7207483 (2019)