OPINION AND ORDER
BMR & Assоciates, LLP, and BMR Ad-visors (collectively, “BMR” or “Plaintiffs”), initiated this action against SFW Capital Partners, LLC (“SFW” or “Defendant”) for various breach of contract and other related claims based on SFWs alleged non-payment for work undertaken by BMR relating to a potential investment by SFW in a group of Indian companies. Before the Court is Defendant’s motion to dismiss the First Amended Complaint. For the reasons that follow, Defendant’s motion is GRANTED, with conditions.
I. BACKGROUND
The following facts are taken from Plaintiffs First Amended Complaint except where noted and are accepted as true for the purposes of this motion.
Plaintiffs BMR & Associates, LLP, and BMR Advisors are professional services firms based in India. BMR offers services to facilitate strategic investments, with a
From August 2012 to February 2013, SFW engaged BMR in connection with a potential investment (“the Transaction”) in a group of companies (“the Target”). (Id. ¶ 3.) The Target was a leading provider of analytiсs services headquartered in India with a complex structure — a multinational enterprise with four entities in its corporate structure, two delivery centers in India, and sales offices in the United States, the United Kingdom, Asia, and the Middle East. To facilitate SFW’s investment in the Target, a proposal was made to restructure the Target. BMR was engaged to facilitate such a transaction. (Id. ¶¶ 3-9.) Throughout the engagement, BMR provided advice and assistance in identifying and analyzing structure options for implementing the Transaction, discussed these options with other Indian and U.S. advisors engaged by SFW and the Target, undertook a due diligence review of the Target’s operations, provided valuation inputs, reviewed transaction documents, and provided project management and implementation support. The negotiations between SFW and the Target ultimately fell apart and the deal was not consummated. (Id. ¶ 14.)
In total, BMR alleges that Plaintiffs provided SFW with over 1,800 hours and $400,000 worth of services, all rendered either pursuant to a written contract or at the direction of SFW. (Id. ¶ 2.) To date, SFW has not paid BMR for this work. The work that BMR conducted for SFW appears to fall into three different categories, which are described here in furthér detail.
a. Initial Review Work and the Email Agreement
In early August 2012, SFW requested that BMR review various structure options for the Transaction that had been prepared by Ernst & Young at thе behest of SFW and the Target (the “Initial Review Work”). The Initial Review Work’s scope is set out in an August 3, 2012 email from Vishal Agarwal of BMR to Paresh Vaish of SFW (the “Email Agreement”). The Email Agreement contemplated a 7-10 day engagement at an initial rate of $150 per hour, with total estimated fees falling between $6,000 and $7,500. (FAC ¶ 52.) Payment of fees was not contingent upon success of the Transaction. (Id. ¶ 53.) On August 4, 2012, SFW agreed to the Email Agreement’s terms. (Id. ¶ 57.)
b. Due Diligence Work and the August 30 Agreement
SFW also engaged BMR to perform a “financial and tax due diligence” of the Target’s financial statements (the “Due Diligence Work”). (FAC ¶ 83.) The scope of work, timeline, fees, and other details for the Due Diligence Work are set out in a letter from Sanjay Mehta of BMR to Paresh Vaish' of SFW dated August 30, 2012 and emailed to SFW on August 81, 2012 (the “August 30 Agreement”); SFW accepted the terms of the contract on August 31, 2014. (Id. at ¶¶ 84-86.) Nothing in the August 30 Agreement suggests that payment of fees would be contingent upon the Transaction’s successful consummation.
The August 30 Agreement also contained a document labeled Appendix B, which sets out BMR’s “Standard Terms of
c. Tax Structuring and Deal Implementation Work
BMR performed a third body of work related to tax restructuring advising and deal implementation support. Throughout the time that it was engaged in this body of work, BMR was involved in telephone discussions and email exchanges with the Target’s personal and other advisors on the Transaction. Plaintiffs also provided SFW with regular update calls, including near daily update calls at the height of negotiations between SFW and the Target. (FAC ¶¶ 70, 72.) In addition, BMR undertook a review of the “workings associated with computing the value of the Target under a business transfer agreement.” (Id. ¶¶ 77-78.)
BMR asserts that this third body of work was not done pursuant to a contract, but that is disputed by SFW and this dispute is relevant to the analysis of whether the forum selection clause contained in Appendix B of the August 30 Agreement applies to the claims regarding payment for this body of work.
d. Procedural History
BMR filed the instant action against SFW on February 10, 2014, and filed an amended complaint on June 16, 2014. (See ECF Nos. 1, 17.) Plaintiffs allege ten causes of action in their First Amended Complaint: breach of contract, account stated, quantum meruit, and unjust enrichment claims as to the due diligence contract and related work; an account stated claim as to the initial review, tax structuring and deal implementation work; quantum meruit and unjust enrichment claims as to the initial review, tax structuring, deal implemеntation and limited review work; a breach of contract claim as to the initial review work; and two fraudulent inducement claims as to the due diligence and other work conducted by Plaintiffs on behalf of SFW. SFW moved to dismiss the First Amended Complaint on August 19. (See ECF No. 21.)
II. FORUM SELECTION CLAUSE
Defendants first move for dismissal of this action based on a forum selection clause contained within the August 30 Agreement.
a. Legal Standard
In determining whether an action should be dismissed based on a forum selection clause, the Court employs a four-part analysis, asking: “(1) whether the clause was reasonably communicated to the party resisting enforcement; (2) whether the clause is mandatory or permissive ... and (3) whether the claims and parties involved in the suit are subject to the forum selection clause.” Martinez v. Bloomberg LP,
The “burden [is] on the.plaintiff, who brought suit in a forum other than the one designated by the forum selection clause, to make a strong showing in order to overcome the presumption of enforceability.” New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG,
In evaluating a motion tо dismiss based on a forum selection clause, the district court typically relies on the pleadings and affidavits submitted by the parties. See Martinez,
b. Analysis
The August 30 Agreement consists of an Engagement Letter describing the services to be performed and engagement fees, a document labeled Appendix A providing detailed information regarding the due diligence procedures to be performed, and a document labeled Appendix B containing SFW’s “Standard Terms of Business.” (See Rakower Deck Ex. 2; Yaish Decl. Ex. C.) Section 15 of the Standard Terms of Business, under the heading of “Governing Law and Jurisdiction,” contains a choice of law provision and a forum selection clause. It provides: “These terms оf business shall be governed by and construed in accordance with the laws of India and any dispute arising out of this engagement or these terms shall be subject to the exclusive jurisdiction of the Indian courts.” (Rakower Deck Ex. 2 at 13; Vaish Deck Ex. C at 13.)
BMR argues that this forum selection clause only applies to claims related to the Due Diligence Work and that, regardless, enforcement of the forum selection clause would be unreasonable, even as it relates to the Due Diligence Work. SFW, on the other hand, avers that the forum selection clause, based on the plain language of the contract, applies to all of BMR’s claims. Analyzing each prong of the test enumerated by the Supreme Court in M/S Bremen, it is clear that the forum selection clause applies to all of Plaintiffs’ claims related to not just the Due Diligence Work, but also the Tax Structuring and Deal Implementation Work; it is also clear that the forum selection clause requires that BMR’s claims be litigated in India.
First, there can be no question that the forum selection clause was “reasonably communicated to the party resisting enforcement” because the Plaintiffs, the parties resisting enforcement, actually drafted the Agreement and included the forum selection clause. The forum selection clause was also included in a document designated as BMR’s “Standard Terms of Business.” There can be no doubts as to whether Plaintiffs knew about the clause’s existence.
Third, the forum selection clause applies to all parties involved in this action and applies to, at least, the claims related to the Due Diligence Work and the Tax Structuring and Deal Implementation Work.
The claims related to the Due Diligence Work are clearly subject to the forum selection clause. Count I is a straightforward claim for the breach of the very contract that contains the forum selection clause. Counts II, III, and IV, while equitable causes of action, are still based upon the contract, and “where the relationship between the parties is contractual, the pleading of alternative, non-contractual theories of liability should not prevent enforcement of such a bаrgain [as to the appropriate forum].” Cfirstclass Corp. v. Silverjet PLC,
Plaintiffs’ claims covering the Tax Structuring and Deal Implementation Work, all of which occurrеd after the August 30 Agreement was in place, are also covered by the forum selection clause. Counts V, VI, and VII of the First Amended Complaint cover this set of work. The plain language contained in Appendix B, the “Standard Terms of Business,” makes clear the clause’s applicability. Appendix B begins by stating: “The following terms of business apply to engagements accepted by BMR Advisors (“BMR”). All work carried out is subject to these terms except to the extent that changes are expressly agreed in writing.” (Rakower Deck Ex. 2 at 8; Vaish Deck Ex. C at 8 (emphasis added).) The clause mandating that disputes be litigated in India is contained within Section 15, “Governing Law and Jurisdiction,” of the Appendix. Another provision of Appendix B also indicates, based on a reading of its plаin language, that the terms of Appendix B applied to more than just the Due Diligence Work: “Such terms [set forth in Appendix B] shall also continue to apply after any termination of the Engagement Letter and during any dispute between the parties.”
Additionally, Plaintiffs cannot get around the forum selection clause by alleging fraudulent inducement, as in Counts IX and X. “Fraud in the inducement of the Agreement, as distinct from fraud in the inducement of the forum selection clause specifically, is insufficient to defeat the forum selection clause.” J.B. Harris, Inc. v. Razei Bar Industries, Ltd.,
As to the question of whether all of the parties in this litigation are subject to the forum selection clause, it is clear that BMR Advisors and BMR & Associates are both subject to the clause’s effect, as is SFW. BMR Advisors and SFW are bound by their direct agreemeht to the contract. BMR & Associates is also bound to the forum selection clause, even if, as BMR argues, the relationship with SFW were somehow non-contractual. A non-party can be bound to a forum selection clause when the party is “closely related to the dispute such that it becomes foreseeable that it will be bound.” Hugel v. Corp. of Lloyd’s,
The burden now shifts to the Plaintiffs, as the resisting parties, to “make a strong showing in order to overcome the presumption of enforceability.” New Moon Shipping,
Thus, the breach of contract, account stated, quantum meruit, unjust enrichment, and fraudulent inducement claims related to the Due Diligence Work and the Tax Structuring and Deal Implementation Work must be dismissed because the forum selection clause in the August 30 Agreement mandates that these claims be brought in the courts of India, not the United States. Plaintiffs have not made a sufficient showing that enforcement of the forum selection clause would be unreasonable or unjust, particularly in light of the fact that they themselves are responsible for the forum selection clause’s existence in the first place.
This Court does not reach the issue of whether the forum selection clause would apply to the Initial Review Work conducted pursuant to the Email Agreement, which was completed before the parties agreed to the terms of the August 30 Agreement. Regardless of whether the clause would apply, Plaintiffs cannot maintain their claims as they relate to only the Initial Review Work in this Court because the disputed amount owed for the Initial Review Work appears from the First Amended Complaint to fall somewhere below $10,000. This is not a sufficient amount-in-controversy to maintain diversity jurisdiction. See 28 U.S.C. § 1332. Thus, because Plaintiffs’ claims related to the Due Diligence Work and the Tax Structuring and Deal Implementation Work are dismissed, the Plaintiffs’ claim related to the Initial Review Work must also be dismissed.
III. FORUM NON CONVENIENS
Defendants also move to dismiss all claims based on the doctrine of forum
a. Legal Standard
“The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert,
b. Analysis
The Court looks at each prong of the forum non conveniens test in turn to determine which forum would ultimately be the most convenient for litigation of this matter.
1. Deference to Plaintiff’s Choice of Forum
“Generally, there is a strong presumption in favor of a plaintiff s choice of forum.” In re Alcon Shareholder Litig.,
The Second Circuit has instructed that the amount of deference to be given to a plaintiffs choice of forum should be evaluated on a sliding scale. “[T]he greater the plaintiffs or the lawsuit’s bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States,” the more deference should bе afforded to the plaintiffs choice. Iragorri v. United Technologies Corp.,
This is not to say that BMR’s choice to bring suit in this District should be accorded no deference at all. There is no smoking gun here that would show that BMR was clearly attempting to forum shop. But BMR’s choice of this forum receives a lesser amount of deference be
Additionally, the fact that Plaintiffs chose to bring this action in Defendant’s home forum does not weigh in Plaintiffs’ favor either or serve as a good proxy for convenience. Rather, such a choice suggests that the reasons for choosing to bring suit in this venue may have been something other than true convenience. In any case, the choice to bring suit in Defendant’s home forum does not alone entitle Plaintiffs to heightened deference:
Bearing in mind that litigants rarely are concerned with promoting their adversary’s convenience at their own expense, a plaintiffs choice of the defendant’s home forum over other fora where defendant is amenable to suit and to which the plaintiff and the circumstances of the case are much more closely connected suggests the possibility that plaintiffs choice was made for reasons of ■trial strategy. Accordingly, a plaintiffs choice to initiate suit in the defendant’s home forum — as opposed to any other where the defendant is also amenable to suit — only merits heightened deference to the extent that the plaintiff and the case possess bona fide connections to, and convenience factors favor, that forum.
Pollux Holding Ltd. v. Chase Manhattan Bank,
2. Alternative Forum
The doctrine of forum non conveniens “presupposes at least two forums in which the defendant is amenable to process.” Gulf Oil,
Neither side has presented mоre than anecdotal evidence and citations to other cases for the issue of whether India would be an inadequate forum. The parties do not contest, however, that the courts in India “permit[ ] litigation of the subject matter of the dispute.” See In re Arbitration,
Because an alternative forum is inadequate only in those “rare circumstances when the remedy offered by the other forum is clearly unsatisfactory,” Murray,
This Court’s conclusion is further supported by the fact that Plaintiffs themselves chose India as the mandatory and exclusive forum for disputes arising out of the August 30 Agreement, by inserting a forum selection clause into the contract that they themselves drafted. Any perceived backlog in the Indian courts did not crop up unexpectedly in the less than three years between when BMR drafted the agreement and today so as to have been unfоreseeable at the time BMR chose India’s courts as an adequate forum for disputes arising out of its contractual relationship with SFW.
3. Public and Private Interest Factors
Step three of the forum non conveniens analysis requires the Court to balance the public and private interest factors “to determine whether the convenience of the parties and the ends of justice would best be served by dismissing the action.” Murray,
the relative access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Iragorri,
the administrative difficulties flowing from court congestion; the local interest in having controversies decided at home; the interest in having the trial in a forum that is familiar with the law governing the action; the avoidance of unnecessary problems in conflict of laws or in the application of forum law; and the*142 unfairness of burdening citizens in an unrelated forum with jury duty.
Murray,
In considering the private interest factors, the court necessarily engages in “a comparison between the hardships defendant would suffer through the retention of jurisdiction and the hardships the plaintiff would suffer as the result of dismissal.” Iragorri,
The public interest factors,' those “factors pertaining to the burden imposed on this forum by retention of these disputes,” Doe v. Hyland Therapeutics Div.,
In taking a broad look at all of the private and public interests to be balanced in a forum non conveniens analysis, the majority of the factors weigh heavily in favor of litigation in India. Thus, the Court declines to exercise jurisdiction to hear Plaintiffs’ claims regarding the work BMR conducted for SFW.
4. Conditions of Dismissal
Because the forum non conveniens analysis presupposes that the defendant would be amenable to litigation in the alternative forum, courts have often placed conditions on the dismissal of a case on such grounds. See, e.g., Blanco v. Banco Indus. de Venezuela, S.A.,
The instant action is dismissed on the following conditions: (1) that Defendant consents to the jurisdiction of the appropriate Indian courts; (2) that Defendant agrees to waive any statute of limitations defense that has arisen since the' commencement of this action in the Southern District of New York; and (3) that the Indian courts are willing to hear the case.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion is granted and this case is dismissed. Dismissal is conditioned on: (1) Defendant’s consent to the jurisdiction of the appropriate Indian courts; (2) Defendant’s agreement to waive any statute of limitations defense that has arisen since the commencement of the action in this District; and (3) the willingness of the appropriate Indian courts to hear the case. Defendant must notify Plaintiffs and this Court in writing within fifteen days of the date of this Order if it objects to these conditions. Plaintiffs will be permitted to reinstate their suit if Defendant objects or if these conditions are not otherwise met. The Clerk of the Court is respectfully directed to terminate the motion at Docket No. 21, and to terminate this case.
SO ORDERED.
Notes
. Plaintiffs later withdrew this concession, however, and chose to move forward with the claims related to the Due Diligence Work. (See Transcript of May 30, 2014 Pre-Motion Conference, at 4-5.)
. Unless changes were made in writing.
. The report submitted by Plaintiff also concerns itself mostly with the Indian Supreme Court, not the courts where Plaintiffs’ claims would first be filed. Plaintiffs have not provided the Court with reason to believe that the particular court(s) where their claims would be brought are somehow more or less adequate than this Court’s determination about the Indian courts generally.