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Contract – Forum-Selection Clause – France – French Assignor – Unfair Trade Practices – Statute of Limitations – Aggravating Factors

Contract – Forum-Selection Clause – France – French Assignor – Unfair Trade Practices – Statute of Limitations – Aggravating Factors

Ada Liss Group Ltd. v. Sara Lee Corp. (Lawyers Weekly No. 10-03-1134, 16 pp.) (Wallace W. Dixon, USMJ) M.D.N.C.

Holding: Defendant bases its breach-of-contract counterclaim on a contract plaintiff entered into with Playtex France. The Playtex France contract includes a forum-selection clause naming the Tribunal de Commerce de Paris as the exclusive forum for litigating disputes under the contract.

Defendant, assignee of Playtex France, contends that judicial economy would be promoted by resolving the Playtex France contract dispute in the same forum as the partiesí other disputes. Defendantís argument is insufficient to rebut the presumption of the validity of the forum selection clause.

Plaintiffís motion to dismiss defendantís breach of contract and unfair trade practices counterclaims should be granted.

As to defendantsí contention that their breach of the Playtex France contract counterclaim and the claims arising under the partiesí 2004 distributorship agreement and 2004 settlement agreement are similar claims with overlapping issues of fact and law, plaintiff has persuasively argued that these claims in fact do not directly overlap.

In any event, the fact that there may be some overlapping evidence between the issues litigated under the 2004 distributorship agreement and the 2004 settlement agreement and the issues litigated under the Playtex France contract does not require the court to disregard the forum selection clause.

Part of defendantsí unfair-trade-practices counterclaim arose in November 2003, yet defendants did not file their counterclaim until May 2010, outside the four-year statute of limitations. Defendants contend that their counterclaim is a compulsory counterclaim for which the limitations period was tolled upon the filing of plaintiffís complaint on Feb. 15, 2006.

Defendants rely on In re Gardner, 20 N.C. App. 610, 202 S.E.2d 318 (1974). However, Gardner was issued before the adoption of the N.C. Rules of Civil Procedure, the plain language of which does not support allowing counterclaims to relate back to the filing of the complaint. Moreover, Pharmaresearch Corp. v. Mash. 163 N.C. App. 419, 594 S.E.2d 148 (2004), held that compulsory counterclaims do not relate back to the date the complaint was filed.

To the extent that defendantsí counterclaim is based on the alleged falsification of invoices in 2003, the counterclaim is time-barred.

The remainder of defendantsí unfair-trade-practices counterclaim is based on nothing more than an alleged willful and deliberate breach of contract. Defendants have not alleged sufficient aggravating factors to state an unfair trade practices claim.

Plaintiffís motion to dismiss two of defendantsí counterclaims should be granted.


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