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Kebb Management, Inc. v. Home Depot U.S.A., Inc.

United States District Court, D. Massachusetts

November 17, 2014

KEBB MANAGEMENT, INC., Plaintiff,
v.
HOME DEPOT U.S.A., INC., Defendant

For Kebb Management, Inc., Plaintiff: Michael B. Feinman, LEAD ATTORNEY, Feinman Law Office, Andover, MA; Stephen P. Shannon, LEAD ATTORNEY, Law Office of Michael B. Feinman, North Andover, MA.

For Home Depot U.S.A., Inc., Defendant: Edward F. Vena, The Law Office of Edward F. Vena, Boston, MA.

Page 284

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge.

This case arises out of a dispute over payment for repair work allegedly performed by plaintiff Kebb Management, Inc. (" Kebb" or " plaintiff" ) at a Watertown, Massachusetts retail store owned and operated by defendant Home Depot U.S.A., Inc. (" Home Depot" or " defendant" ). Kebb contends that Home Depot approved a work order to repair the concrete floors in its store but that it has subsequently refused to pay Kebb for the work performed.

Pending before the Court is Home Depot's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, to transfer venue to the United States District Court for the Northern District of

Page 285

Georgia pursuant to 28 U.S.C. § 1404(a). For the reasons that follow, the motion will be allowed and the case will be transferred.

I. Factual Background and Procedural History

Kebb is a Massachusetts corporation with its principal place of business in Methuen, Massachusetts. Home Depot is organized and incorporated under the laws of Delaware with its principal place of business in Atlanta, Georgia. Home Depot owns and operates home improvement retail stores throughout the United States, including in Massachusetts.

In May, 2010, the parties executed a Master Service Agreement (" MSA" ) for plaintiff to perform maintenance and repair on defendant's retail stores. Under the MSA contract, defendant would issue specific work orders to plaintiff, which would then perform the required work and receive payment for its services from defendant. Each work order was governed by the MSA. From the signing of the MSA through May, 2013, the parties' contractual arrangement proceeded without issue. Home Depot issued work orders, Kebb performed the requested work and sent invoices to Home Depot, which remitted payment to Kebb.

In June, 2013, plaintiff alleges that it provided a requested estimate for repair work on the concrete flooring at defendant's store located in Watertown, Massachusetts. Plaintiff estimated the cost of the project at $110,500. In an email to plaintiff, defendant's duly authorized representative instructed plaintiff to " [u]pload the quote to [this specified work order number] and I will approve." Plaintiff asserts it then uploaded the quote and commenced and completed the repair work by October, 2013. Thereafter, plaintiff sent defendant an invoice which defendant refused to pay. Defendant maintains that the work order at issue was never approved and therefore plaintiff performed unauthorized work for which it is not entitled to payment.

The MSA contains two relevant provisions relating to forum-selection and venue for disputes between the parties. First, MSA Article 17.0 establishes the governing law and the appropriate forum by stating that

[t]his agreement will be governed by and construed in accordance with the laws of ... Georgia without regard to its conflict of laws rules. The parties agree that the courts in ... Georgia shall have exclusive jurisdiction over any disputes under or relating to this agreement.

Second, MSA Article 18.0 governs dispute resolution and specifies mandatory venue options for subsequent litigation as follows:

[e]xcept [for] injunctive or other equitable relief, [the parties] agree that as a condition precedent to the institution of any action regarding disputes arising under or in connection with this agreement, such disputes shall first be submitted to mediation before a professional mediator selected by the parties. Such mediation shall be conducted at a mutually agreed time and place.... If mediation is unsuccessful, the parties shall submit disputes to either the United States District Court for the Northern District of Georgia, Atlanta Division, or the Superior Court of Cobb County, Georgia.

Kebb demanded payment for its work and contends that it requested to engage in mediation with Home Depot but that defendant has refused to agree to a location for mediation. As such, Kebb initiated the instant suit. Kebb filed its complaint in the ...


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