Plaintiffs Posh Pooch Inc. and G Style Couture, Inc. brought this lawsuit against Defendant Nieri Argenti s.a.s., alleging conversion, misrepresentations, delays in delivery of goods, and failure to deliver goods, and seeking replevin of Plaintiffs' intellectual property and other property and damages. Defendant moved to dismiss the Complaint based on lack of personal jurisdiction and seeking enforcement of a forum selection clause on Defendant's invoices. For the reasons that follow, I deny Defendant's motion to dismiss in its entirety.

Plaintiffs Posh Pooch Inc., which designs couture pet carriers and accessories, and G Style Couture, Inc., which designs couture ladies' handbags and accessories, are both New York [*2]corporations located in New York. Ms. Giancci Genau is the president of both companies. Defendant Nieri Argenti s.a.s. is an Italian corporation located in Florence, Italy. Plaintiffs engaged Defendant to manufacture various fine leather and related goods. Plaintiff picked up some of the goods in Italy, but at least seven shipments were sent to Plaintiffs in New York. At the bottom of twelve invoice forms sent to Plaintiffs appears a seven-line paragraph written in tiny type in Italian, under the heading: "CONDIZIONI GENERALI DI VENDITA." The last sentence of this paragraph reads: "Per controversie ê competente il Foro di Firenze." Translated into English, this sentence reads: "The courts of Florence have jurisdiction over disputes." Other than this paragraph, most of the invoice is either written in English or translated into English. The parties do not dispute that Defendant can communicate in English, and that Ms. Genau, Plaintiffs' principal, does not speak or understand Italian.

There is no evidence that the parties otherwise discussed the forum for resolution of disputes. At oral argument, the parties seemed to presume the existence of a contract between them for the sale of goods, but apparently they did not sign any written purchase contract. The parties did enter into two written Confidentiality and Non-Disclosure Agreements in 2003 with respect to Plaintiffs' proprietary information. Both were written in English, and both provided that New York law and international law would govern the construction of those agreements.

In this motion to dismiss the complaint, Defendant contends first that it does not have minimum contacts with New York, such that personal jurisdiction over it would exist under CPLR § 302(a)(1). Second, Defendant contends that I should dismiss this action based on the forum selection clause contained on the invoices sent by Defendant to Plaintiffs.

Defendant also has not "present[ed] a compelling case" that this Court's jurisdiction violates due process by showing "that the presence of some other considerations would render jurisdiction unreasonable." LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 217-18, 735 N.E.2d 883, 888, 713 N.Y.S.2d 304, 309 (NY 2000) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). Although Defendant's witnesses and documents are in Italy, most of Plaintiffs' witnesses and documents are in New York. The two Confidentiality and Non-Disclosure Agreements provide that New York law and international law govern disputes under those agreements. Therefore, New York has an interest in providing a convenient forum for Plaintiffs, which are New York residents, and which may be entitled to relief under New York law. Consequently, this Court may properly exercise personal jurisdiction over Defendant under CPLR § 302(a)(1).

[*3]

Defendant also contends that I should dismiss this action based on the forum selection clause written in Italian in tiny type at the bottom of several invoices sent to Plaintiffs. I do not need to reach the question of whether a forum selection clause written in Italian is enforceable against a plaintiff that does not read or understand Italian, because I find that the forum selection clause is unenforceable under § 2-207(2)(b) of the New York Uniform Commercial Code Law, which governs disputes arising out of a contract for the sale of goods between merchants.

Section § 2-207(2)(b) provides that additional terms to a contract for the sale of goods "are to be construed as proposals for addition to the contract" and do not become part of the contract between merchants if they "materially alter it," unless both parties explicitly agree to the alteration. Marlene Indus. Corp. v. Carnac Textiles, Inc., 45 NY2d 327, 333, 380 N.E.2d 239, 242, 408 N.Y.S.2d 410, 413 (NY 1978).

In Marlene Industries, the New York Court of Appeals refused to enforce an arbitration provision contained in an "acknowledgment of order" form sent by a seller to a buyer. This form, which instructed the buyer to "sign and return one copy," had not been signed and returned. It had been sent to the buyer in response to a purchase order form sent by the buyer to the seller, which also was unsigned, did not contain an arbitration clause, and provided that its terms could not be "superceded by [a]n unsigned contract notwithstanding retention." Both parties agreed that they had entered into a (presumably oral) contract for the sale of goods, but they disagreed as to whether their agreement included a provision for the arbitration of disputes arising from the contract.

The Court held that the arbitration clause contained in the seller's form: (1) was a proposed additional term to the parties' contract, which was a contract between merchants, (2) had materially altered the contract, and (3) was therefore unenforceable under § 2-207(2)(b), unless both parties "explicitly agree[d] to it." Id. at 333. Moreover, Marlene Industries noted that § 2-207(2)(b) was intended to include at least two distinct situations: "one in which the parties have reached a prior oral contract and any writings serve only as confirmation of that contract; and one in which the prior dealings of the parties did not comprise actual formation of a contract, and the writings themselves serve as offer and acceptance." Id. at 333 n.2. The instant case falls within the purview of § 2-207(2)(b), because the parties presume the existence of a contract for the sale of goods, although they have not explained when or how or precisely on what terms it arose.

Following this reasoning, the forum selection clause in Defendant's invoices is unenforceable. A forum selection clause is indisputably a material term of a contract for the sale of goods between merchants. See Hugo Boss Fashions, Inc. v. Sam's European Tailoring, Inc., 293 AD2d 296, 297, 742 N.Y.S.2d 1 (1st Dept. 2002) (forum selection clause in seller's confirmatory invoices materially altered parties' oral contract for sale of goods, where parties had not agreed upon the forum for the resolution of disputes at the time the contract was made); Pacamor Bearings, Inc. v. Molon Motors & Coil, Inc., 102 AD2d 355, 477 N.Y.S.2d 856 (3d Dept. 1984) (buyer was not bound by forum selection clause in sales order sent by seller to confirm terms of sale in response to purchase order from buyer, where forum selection clause materially altered parties' agreement and was not consented to by defendant); General Instrument Corp. v. Tie Mfg., Inc., 517 F. Supp. 1231, 1233-34 (S.D.NY 1981) (buyer was not bound by [*4]forum selection clause in written acknowledgment form sent by seller, where there was "no evidence that the forum for resolution of disputes was discussed at the time the contract was made," applying New York law).

While Defendant points out that Plaintiffs never disputed the terms and conditions written on the invoices, Marlene Industries holds that a buyer must explicitly agree to them. Here there is no allegation or evidence that Plaintiffs signed and returned any of the invoices to indicate their assent to the forum selection clause or in any other way explicitly agreed to it. Consequently, under NY U.C.C. Law § 2-207(2)(b) and Marlene Industries, the forum selection clause did not become part of the contract between the parties.^[FN1] Therefore the issue of whether a forum selection clause in a fully executed contract is prima facie valid, see M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972), does not even arise.

This case is also distinguishable from the decisions cited by Defendant, in which courts enforced a material alteration in a contract for the sale of goods, after the buyer had explicitly expressed agreement with it. See, e.g., Ernest J. Michel & Co., Inc. v. Anabasis Trade, Inc., 50 NY2d 951, 409 N.E.2d 933, 431 N.Y.S.2d 459 (NY 1980) (enforcing arbitration clause contained in a confirmation of order form sent by the seller, where the form was signed by the buyer "with admitted knowledge that an arbitration clause was contained therein"); ISPO, Inc. v. Clark-Schwebel Fiber Glass Corp., 140 AD2d 195, 197, 528 N.Y.S.2d 48, 50 (1st Dept. 1988) (enforcing arbitration clause contained in sales confirmation forms sent by the seller in response to its purchase orders, relying on fact that buyer had seven times explicitly expressed agreement with the terms by signing and returning the form).

Although there was no "battle of the forms" in this case, as there was in Marlene Industries and ISPO, the holdings in those decisions depended less on whether both parties had sent forms than on whether the buyer had explicitly expressed agreement with the additional, material term proposed by the seller in its sales confirmation form or invoice.^[FN2]

Consequently, the forum selection clause in the invoices is unenforceable under § 2-207(2)(b).^[FN3] [*5]

For the foregoing reasons, it is hereby:

ORDERED that Defendant's motion to dismiss is denied in its entirety.

Dated: February 23, 2006

ENTER:

_________________________

J.S.C.