Kasper Global Collection & Brokers, Inc. v. Global Cabinets & Furniture Manufacturers Inc. (952 F. Supp. 2d 542, 2013)

United States District Court for the Southern District of New York 2013-07-01

Citations

Full opinion text

MEMORANDUM AND ORDER

DEBRA FREEMAN, United States Magistrate Judge.

In this contract case, which is before this Court on consent pursuant to 28 U.S.C. § 636(c), plaintiff Kasper Global Collection & Brokers, Inc. (“Plaintiff’) has moved for summary judgment on its claims of breach of contract, account stated, and goods sold and received, or, in the alternative, partial summary judgment on certain of those claims. (Dkt. 48.) Defendants Global Cabinets & Furniture Manufacturers Inc. (“Global”), Denton Stone-works Inc. (“Denton”), Boguslaw Kaczor (“Kaczor”), Artur Bobko (“Bobko”), Atlas Kitchens Inc. (“Atlas Kitchens”), and Affordable Kitchens by Atlas (“Affordable Kitchens”) (collectively, “Defendants”) have cross-moved for dismissal of the entire Complaint or, in the alternative, dismissal of all claims against certain defendants or summary judgment in favor of all Defendants. (Dkt. 55.)

In' support of their cross-motion, Defendants argue, inter alia, that the Court must dismiss Plaintiffs Complaint in its entirety because all of Plaintiffs claims are subject to an enforceable forum-selection clause, which requires the parties to litigate this case, if at all, in a Polish court, under Polish law. {See Defendants’ Memorandum in Support of Cross-Motion to Dismiss or for Summary Judgment and in Opposition to Plaintiffs Motion for Summary Judgment, dated Sept. 21, 2012 (“Def. Mem.”) (Dkt. 57), at 1.)

For the reasons that follow, the Court agrees that the forum-selection clause to which Defendants refer is enforceable, but, on the record presented, finds that it may be enforced only as to Plaintiffs claims against Global and Kaczor, and as to Plaintiffs claims against Bobko based on any Global transactions. The Court therefore grants Defendants’ cross-motion (Dkt. 55) for summary judgment in part, and dismisses all of Plaintiffs claims against Global and Kaczor, as well as any of Plaintiffs claims against Bobko that are based on the Global transactions. Defendant’s cross-motion is otherwise denied.

As to Plaintiffs motion for summary judgment (or partial summary judgment) on claims asserted against the remaining defendants — Affordable Kitchens, Atlas Kitchens, Denton, and Bobko (based on the conduct of Affordable Kitchens and Atlas Kitchens) — the Court concludes that Plaintiff has not demonstrated the absence of material issues of fact. Accordingly, that motion (Dkt. 48) is denied, as is Plaintiffs motion to dismiss Bobko’s counterclaim.

BACKGROUND

A. Factual Background

1. Atlas Meble’s Business Arrangements With Affordable Kitchens and Atlas Kitchens

Atlas Meble is a Polish corporation that manufactures custom-made furniture in Poland, with its chief product consisting of custom kitchens (ie., suites of kitchen cabinets, counters, and the like). (PI. 56.1 Stmt. ¶ 1.) The company does not sell to individual consumers; rather, it partners with autonomous retailers in given markets to sell its furniture in those markets. {IdA 20.)

■ In 2005, Atlas Meble began doing business with defendant Affordable Kitchens, a limited liability company that, at that time, operated a retail store in New Jersey. (Defendants’ Statement of Material Facts Pursuant to Local Rule 56.1, dated Sept. 21, 2012 (“Def. 56.1 Stmt.”) (Dkt. 61), ¶¶ 7, 9.) Defendant Bobko and his partner, Jacek Malkanski, were the sole principals of Affordable Kitchens. (Declaration of W. Scott Krol, Esq., dated Aug. 31, 2011 (“Krol Dec!.”) (Dkt. 50), Ex. B (Transcript of deposition of Artur Bobko, conducted Nov. 23, 2011), at 16:10-13,17:14-16).

In 2007, Bobko dissolved the New-Jersey-based Affordable Kitchens and — -purportedly at the request of the then-president of Atlas Meble, Tadeusz Nowicki (“Nowicki”) — created a New York business in its stead (Atlas Kitchens), which opened a store in Yonkers, New York. {See Def. 56.1 Stmt. ¶ 17; Krol Deck, Ex. B, at 6:7-8, 8:15-17, 16:6-22, 17:3-10; Affidavit of Artur Bobko, sworn to Feb. 10, 2012 (“Bobko Aff.”) (Dkt. 59), ¶ 6.) The parties dispute whether, prior to its dissolution, Affordable Kitchens fully paid for its orders from Atlas Meble. According to Bobko, at the time when it was agreed that Affordable Kitchens should cease doing business, Affordable Kitchens paid all outstanding obligations to Plaintiff by wire transfer. (Bobko Aff. ¶ 6; Def. 56.1 Stmt. ¶ 16.) Plaintiff, however, has submitted numerous invoices and shipping records {see generally Krol Deck, Ex. G (Invoices and Shipping Records)), and asserts, based on those records, that Affordable Kitchens still owes a balance of $29,526.74 for purchases made in 2006. {See PI. 56.1 Stmt. ¶ 23.) Neither party submits documentary evidence of payments made by Affordable Kitchens.

As for the new Atlas Kitchens business, Bobko contends that it was not only created. at the specific request of Atlas .Meble, which wanted a presence closer to New York City (Def. 56.1 Stmt. ¶ 17; Bobko Aff. ¶ 6), but that it was formed based on Atlas Meble’s express agreement to provide the new store with a showroom, samples, catalogs, training, and employees in order to conduct its business in New York (Def. 56.1 Stmt. ¶ 28; see also Bobko Aff. ¶ 8). According to Bobko, while this was not memorialized in a written contract, he had a “verbal agreement” with Nowicki to this effect. (Krol Deck, Ex. B, at 9:24-10:2.) Defendants assert that, in reliance on this agreement, Bobko expended sums in excess of $100,000 to establish Atlas Kitchens, but, other than providing some showroom material (Def. 56.1 Stmt. ¶ 28) and catalogs (Bobko Aff. ¶ 8), Plaintiff failed to assist Atlas Kitchens in any way in the establishment and operation of its business (Def. 56.1 Stmt. ¶ 28).

Plaintiff, meanwhile, claims that Atlas Kitchen owes it payment on furniture orders. (PI. 56.1 Stmt. ¶ 24.) It is undisputed that Atlas Kitchens received furniture from Atlas Meble {id. ¶ 29) and sold some of Atlas Meble’s furniture to retail customers (Krol Deck, Ex. B, at 44:7-10). It is also undisputed that Bobko still has some kitchen furniture in his possession (PI. 56.1 Stmt. ¶ 34), although Bobko testified that this furniture was display furniture that Atlas Meble provided as part of its alleged agreement to do so (Krol Deck, Ex. B, at 13:7-14:7). Plaintiff concedes that Atlas Kitchens paid some of its invoices, but contends that Atlas Kitchens still owes a balance of $23,634.76 for purchases of furniture from Atlas Meble. {See PI. 56.1 Stmt. ¶ 24.)

While Bobko acknowledges that Atlas Kitchens did not make payment on all of the invoices it received (Krol Deck, Ex. B, at 44:7-15, 45:6-14), Defendants allege that there were ongoing disputes with regard to invoices that Plaintiff presented to Atlas Kitchens, that Atlas Kitchens repeatedly notified Plaintiff of the discrepancies and errors in such statements, that Plaintiff authorized credits for untimely orders, and that Atlas Kitchens made all payments reasonably due (Def. 56.1 Stmt. ¶ 21; Bobko Aff. ¶¶ 9 — 11). Bobko also contends that orders were shipped by Atlas Meble on an extremely delayed basis, that customers of Atlas Kitchens could not wait six months for cabinets, that orders were cancelled, and that business was lost. (Bobko Aff. ¶ 11.) Bobko also states that, because of the delayed orders, he had to lend Atlas Kitchens money to pay customers who could not finish construction work on their kitchens. (Id. ¶ 9.) In connection with their payment dispute, Plaintiff submits invoices and shipping records for furniture that it claims to have sent to Atlas Kitchens. (Krol Deck, Ex. G.) Defendants, on the other hand, submit email correspondence between Atlas Kitchens and Atlas Meble regarding delayed shipments and nonconforming products. (See generally Def. Mem., Ex. A-l (Translated email correspondence) (Dkt. 62).) Bobko asserts that credits for some of these orders were agreed upon by Nowicki, on behalf of Atlas Meble, and Bobko, on behalf of Atlas Kitchens. (Bobko Aff. ¶ 11.) Bobko also asserts that there was an express agreement that a set-off was to be made for any balance owed by Atlas Kitchens for amounts that Bobko expended in establishing Atlas Kitchens. (Id.)

According to Bobko, Atlas Kitchens went out of business after only a few months of operation because of Atlas Meble’s untimely and inadequate shipments and because of the failure of Atlas Meble, in general, to “perform its part in connection with the operation of such business.” (Id. ¶¶ 8, 10; see also Krol Deck, Ex. B, at 9:6-7 (noting that Atlas Kitchens went out of business in 2008).) Bobko states that, after Atlas Kitchens went out of business, he received an invoice and immediately informed Nowicki and Tomasz Glodz (“Glodz”), an Atlas Meble sales representative, that the invoice was totally incorrect, because it related to orders that were either delivered with nonconforming goods or that were delivered months late and could not be used by the customers who placed the orders. (Bobko Aff. ¶ 10.) Bobko also notes that Nowicki lost his job soon after Atlas Kitchens went out of business, and (although this is not entirely clear), Bobko seems to suggest that, after that point, he started receiving additional invoices in connection with shipments that were either defective or delivered far beyond the promised delivery dates, and that Atlas Kitchens should not have been obligated to pay such invoices. (See id. ¶ 11.)

2. Atlas Meble’s Venture Agreement with Global

In 2006 — prior to the dissolution of Affordable Kitchens and creation of Atlas Kitchens — Bobko and Kaczor, along with two other individuals not named as defendants in this case, Janusz Matusiewicz (“Matusiewicz”) and Gabriele Capacchione (“Capacchione”), flew to Poland to pursue another business venture with Atlas Meble. (PI. 56.1 Stmt. ¶ 12; Def. 56.1 Stmt. ¶ 15.) ■ On October 30, 2006, defendant Global — a New York corporation formed by these individuals — and Atlas Meble entered into an agreement (“Venture Agreement” or “Agreement”), wherein they agreed that,' upon Global’s purchase orders, Atlas Meble would supply furniture to Global, and Global would then sell, market and install that furniture in the United States. (See PI. 56.1 Stmt. ¶¶ 11, 5; Krol Deck, Ex. A (Plaintiffs’ translated Venture Agreement, dated Oct. 30, 2006), at PL000348.) The Agreement was drafted by Atlas Meble (Def. 56.1 Stmt. ¶ 15) and was signed on its behalf by Tadeusz Nowicki, the company’s President, and Hubert Nowicki, its Vice President. (Id.; Krol Deck, Ex. A, at PL000348.) On Global’s behalf, the Agreement was signed by Bobko, Kaczor, Matusiewicz, and Cappachione. (Krol Deck, Ex. A, at PL000348; Bobko Aff. ¶ 3; Kaczor Aff. ¶ 3.) Plaintiff, though, contends that these four individuals signed the Venture Agreement not only as Global’s corporate representatives, but also in their individual capacities (PI. 56.1 Stmt. ¶ 12), which Bobko and Kaczor dispute (Bobko Aff. ¶ 3; Kaczor Aff. ¶ 3).

The Venture Agreement, which was written entirely in Polish, itself states that it is an agreement by and between

ATLAS MEBLE KUCHENNE, limited liability partnership 64-300 Nowy Tomysl, Ul. Polwiekskiej 31, NIP PL7881872702 registered in regional court in Poznan, XXI Business Devision [sic] of National Court Registry under number KRS 0000222709 in the name of which appears the prepartynt [sic] of the board Tadeusz Nowicki, hereafter called Seller and GLOBAL KABINETS & FURNITURE MANUFACTURERS INC. in the name of whom appear Janusz Matusiewicz, Boguslaw Kaczor, Ar¡tur Bobko and Gabriele Capacchione,

■ hearafter [sic] Purchaser.

(Krol Deck, Ex. A, at PL000348.)

Pursuant to the terms of the Venture Agreement, Global and Atlas Meble agreed to “enter into sales agreements” for furniture orders (“Order Contracts” or “Orders”), which would be effective on “the date of the confirmation by the purchaser of the offer made by the Seller in accordance to paragraph 6.2 below.” (Krol Deck, Ex. A, at PL000348, § 1.3.) Sections 5 and 6 of the Venture Agreement describe the process for submitting these Orders, including the terms that an Order would be required to contain, such as an order number; a specification of the products ordered, along with the quantity; a graphic rendering of the goods, drawings of the work and other elements .necessary to begin production of the order; and the place of delivery for the order. (Id. at PL000350, §§ 5-6.) The Venture Agreement also provides that Orders would be sent “by facsimile or electronic mail in accordance with the process used by the seller” (id. § 5.1), and paragraph 6.2 provides that offers would be accepted by the purchaser by the same means (id. § 6.2). In addition, the Venture Agreement states that “any language of the sales agreement not [enumerated in the offer of the seller and the confirmation of the purchaser” would be “filled in accordance with this agreement.” ■ (Id. at PL000348, § 1.3)

Within a section entitled “Final Provisions,” the Venture Agreement contains both a choice-of-law clause and a forum-selection clause. Plaintiffs translations of the relevant clauses read as follows:

§ 16 ... (1) As to the choice of law with respect to the fulfillment of these obligations the parties agree to [P]olish law.

§ 17 ... (3) All disputes arising out of this agreement, the sides agree to be decided in a court competent to the seat of the seller.

(Id. at PL000353-54). As noted above (see n. 8, supra), Defendants’ translations of the relevant clauses are somewhat different, and read as follows:

§ 16 ... (1) • The parties agree that compliance with obligations between the parties hereunder shall be assessed in accordance with the law of Poland.

§ 17 ... (3) The Parties agree to submit for settlement any disputes arising from this agreement to the court with jurisdiction over seller’s registered office.

(Def. Mem., Ex. B (Defendants’ translation of Venture Agreement, dated Oct. 30, 2006), at PL000052-53.) In their affidavits, Bobko and Kaczor both assert that litigation in Poland was a term upon which Atlas Meble had insisted throughout the parties’ negotiations. (Bobko Aff. ¶ 3; Kaczor Aff. ¶ 3.)

After the Venture Agreement was signed, Global placed an Order with Atlas Meble for 520 sets of storage beds, headboards, and desk systems, for a project entitled “Steva.” (Def. Mem., Ex. A (corporate records and email correspondence), at DF00006-7, 9-10; Kaczor Aff. ¶7.) Aside from the Steva project, Global placed at least one more Order for furniture. (Krol Decl., Ex. C (Transcript of deposition of Boguslaw Kaczor, conducted Nov. 23, 2011), at 18:5-12.) Defendants contend that the materials delivered to Global by Atlas Meble were sometimes delivered more than six months late and, when finally delivered, did not conform with the specifications provided and required extensive alteration in order to be usable. (Def. 56.1 Stmt. ¶ 19.) Defendants also contend that, as a result, Global suffered significant losses (id.), that a substantial dispute existed between Atlas Meble and Global regarding the value of the goods sold and delivered, and that Global repeatedly informed Plaintiff in writing and by telephone of this situation (id. ¶ 25). Defendants assert that Atlas Meble, through Nowicki, agreed to revise the price of the products due to defects and the extreme delay in providing the products to Global. (Id. ¶ 19; see also Def. Mem., Ex. A, at DF000048, DF0000014.)

While Global made some payments for these orders, Plaintiff claims that Global owes it a balance of $260,192.59. (PI. 56.1 Stmt. ¶ 15.) Defendants acknowledge that Global has not made full payment to Plaintiff (Kaczor Aff. ¶ 9), but argue that ongoing disputes exist with regard to invoices presented by Plaintiff to Global. (Def. 56.1 Stmt. ¶ 21.) Global contends that it reasonably notified Plaintiff of the discrepancies and errors in such statements and made all payments reasonably due thereunder. (Id.) Plaintiff states that it attempted to collect on outstanding invoices prior to 2008 (PI. 56.1 Stmt. ¶ 35), but that Global was dissolved on June 2, 2009 (Def. Mem., Ex. A, at DF000004).

3. Atlas Meble’s Business Dealings With Denton

In late 2007, defendant Denton, a New York corporation (PI. 56.1 Stmt. ¶ 6), placed an order with Atlas Meble for kitchen furniture (Kaczor Aff. ¶ 5). Kaczor is the founder, sole shareholder, and president of Denton. (PI. 56.1 Stmt. ¶ 7; Krol Decl., Ex. C, at 5:10-6:4.) Plaintiff does not provide a contract, but attaches a shipping record and invoice, dated November 30, 2007 and addressed to Denton, for the amount of $33,525.58. (Krol Decl.-, Ex. G.) Plaintiff asserts that, while Denton paid for some of this purchase, it owes a balance of $23,525.58. (PI. 56.1 Stmt. ¶ 26.)

Defendants contend that Denton paid all invoices duly submitted to it by Plaintiff for furniture ordered and delivered. (Def. 56.1 Stmt. ¶ 16.) According to Kaczor, Denton placed only a single order with Atlas Meble and paid Atlas Meble $41,028.00 for that order, which was actually an overpayment. (Kaczor Aff. ¶ 5.) Defendants submit Denton’s bank records showing three wire transfers in 2007 to Plaintiff, along with a fax cover-sheet for one of the transfers. (Def. Mem., Exs. CD.) Plaintiff concedes that $41,028.00 was transferred from Denton’s bank account (see PI. Mem., at 19), but contends that a portion of these funds were applied to Global’s account instead (id.). In this regard, Glodz testified that sometimes Defendants would wire money from one defendant’s bank account to Atlas Meble, but would ask that Atlas Meble apply that money to another defendant’s balance. (See Krol Decl., Ex. E (Transcript of continued deposition of Tomasz Glodz, conducted Nov. 23, 2011), at 122:16-23.) Kaczor states that, if this happened, it was without Denton’s authorization and in violation of Denton’s explicit instructions. (Kaczor Aff. ¶ 6.)

B. Procedural History

Plaintiff commenced this action on July 28, 2010, alleging claims against all Defendants for account stated, breach of contract, goods sold and delivered, sale of goods breached by buyer, and unjust enrichment, and seeking relief in the sum of $386,034.01 with interest and penalties. (See generally Complaint, dated July 27, 2010 (“Compl.”) (Dkt. 1).) Plaintiff generally alleges that Atlas Meble shipped orders of furniture to Defendants and that Defendants accepted the furniture, but refused to pay for mdny of the shipments. Denton and Kaczor answered the Complaint on September 26, 2010, and pleaded cross-claims against the other defendants (Dkt. 6); Bobko and Atlas Kitchens answered the Complaint on October 15, 2010, pleading both cross-claims against the other defendants and a counterclaim against Plaintiff (Dkt. 7); Global answered the Complaint on November 2, 2010 (Dkt. 10); and Affordable Kitchens answered the Complaint on November 5, 2010 (Dkt. 12).

Plaintiff filed a motion for summary judgment or partial summary judgment on January 6, 2012 (Dkt. 30), and Defendants cross-moved to dismiss or, alternatively, for summary judgment on February 16, 2012 (Dkt. 38). Plaintiff filed a reply on its motion and an opposition to the cross-motion on March 15, 2012 (Dkt. 44), and Defendants filed a reply on their cross-motion on March 30, 2012 (Dkt. 46). On its motion, Plaintiff argued that, based on the record, including the Venture Agreement, Plaintiff was entitled to recover from Defendants for their failure to pay for goods delivered. (See generally Dkt. 34.) On their cross-motion, Defendants argued that Plaintiffs entire Complaint should be dismissed because all of the claims were purportedly subject to an enforceable forum-selection clause in the Venture Agreement, or, in the alternative, that claims against select defendants should be dismissed. (Dkt. 39.) The translations of the Venture Agreement that the parties submitted, however, were uncertified. (See Dkt. 35, 46.) The Court denied both the motion and cross-motion, without prejudice to renew “upon the submission of certified translations of all documents on which any moving party seeks to rely,” including the Venture Agreement. (Dkt. 47.)

On August 31, 2012, Plaintiff filed a renewed motion seeking summary judgment or partial summary judgment on all of its claims, as well as dismissal of Bobko’s counterclaim. (Dkt. 48.) Plaintiff argues that, under Rule 56 of the Federal Rules of Civil Procedure, it is entitled to summary judgment on its claims for account stated, breach of contract, and goods sold and delivered because there are no issues of material fact with respect to these claims. (See generally PI. Mem., at 5-12.) Plaintiff also seeks an order holding Bobko and Kaczor individually hable for the acts of corporate entities claimed by Plaintiff to be their alter-egos. (Id. at 12-19.) Finally, Plaintiff argues that Bobko’s counterclaim should be dismissed for failure to state a claim. (Id. at 19-20.) Along with its other exhibits, Plaintiff submits a certified translation of the Venture Agreement, which, except for the certification, is in all material respects identical to the translations that both Plaintiff and Defendants had submitted with their first motions for summary judgment. (Dkt. 50.) Plaintiffs translation is certified as true and correct by Plaintiffs counsel, who is a native Polish speaker and who has also received extensive education in the United States. (See Krol Decl. ¶ 2.)

On September 21, 2012, Defendants filed a renewed cross-motion to dismiss or for summary judgment, together with an opposition to Plaintiffs summary judgment motion. (Dkt. 55.) In their cross-motion, Defendants seek the dismissal of Plaintiffs claims pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, on the ground that the forum-selection clause in the Venture Agreement mandates that all of Plaintiffs claims be brought in a Polish court. (Def. Mem., at 7-12.) Defendants also move to dismiss any claims brought by Plaintiff against Bobko and Kaczor in their individual capacities (id. at 12-13), and argue that Plaintiffs claims against Denton and Affordable Kitchens should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim (id. at 13-16). In the alternative, Defendants seek summary judgment dismissing all of these claims. (Id. at 19.) In opposition to Plaintiffs motion for summary judgment on its claims against Global and Atlas Kitchens, Defendants also argue that, in any event, issues of material fact preclude judgment in Plaintiffs favor. (Def. Mem., at 2-7.) In support of their arguments, Defendants submit certified translations of several documents (Dkts. 57, 62), including a new certified translation of the Venture Agreement, which differs from the uncertified translation both parties had previously submitted. Defendants’ certified translation was prepared by a translator at LanguageTran, a third-party translation service. (Dkt. 57.) Along with its renewed cross-motion, Defendants also re-filed the reply — now titled a “Response” — that they had filed on their initial cross-motion. (Dkt. 60.)

Plaintiff did not file an opposition to Defendants’ renewed cross-motion, nor did Plaintiff file a reply on its renewed motion for summary judgment. The Court recognizes, however, that, except for providing certified translations of the Venture Agreement and certain other documents, the parties’ motions are essentially-identical to their original motions, and that, under the circumstances, Plaintiff may not have understood that it. needed to re-file all of its initially-submitted opposition and reply papers. For these reasons, and in the interest of fairness, the Court will consider any responsive arguments that Plaintiff originally raised. (See Dkt. 44.)

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Rule 56

Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment may be granted when the parties’ sworn submissions show that “there is no genuine issue as' to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128-29 (2d Cir.1996). The moving party bears the burden of showing that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Accordingly, the Court must “view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper.” Holt, 95 F.3d at 129.

Nonetheless, the “non-moving party may not rely on conclusory allegations or unsubstantiated speculation,” Robinson v. Allstate Ins. Co., 508 Fed.Appx. 7, 9 (2d Cir.2013) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998)), but, rather, “must present ‘significant probative evidence tending to support the complaint.’ ” Smith v. Menifee, 00 Civ. 2521(DC), 2002 WL 461514, at *3 (S.D.N.Y. Mar. 26, 2002) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “If the evidence [favoring the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

In sum, the Court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir.1967); accord Flaherty v. Lang, 199 F.3d 607, 615 (2d Cir.1999). Where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.

B. Local Rule 56.1

Under this Court’s local rules, a party moving for summary judgment under Rule 56 is required to submit “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). “The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001). Local Rule 56.1, however, “does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law.” Id. Thus, the Court may not rely solely on the statement of undisputed facts contained in the moving party’s Rule 56.1 Statement; it also must be satisfied that the moving party’s assertions are supported by the record. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Holtz, 258 F.3d at 74; Zerafa v. Montefiore Hosp. Hous. Co., 403 F.Supp.2d 320, 329 n. 12 (S.D.N.Y.2005). Summary judgment may only be granted where the Court is satisfied that the undisputed facts, as supported by the record, “show that the [movant] is entitled to a judgment as a matter of law.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (quoting Fed.R.Civ.P. 56(c)).

II. DEFENDANTS’ MOTION TO ENFORCE THE FORUM-SELECTION CLAUSE

As a threshold matter, Defendants seek dismissal of Plaintiffs claims on the grounds that they are subject to a mandatory forum-selection clause in the Venture Agreement, which requires that all disputes be litigated in Poland. Plaintiff argues that the forum-selection clause is not enforceable under the standards set out by the Second Circuit, and that Defendants waived their right to invoke the forum-selection clause by failing to raise it in their first responsive pleading.

For the reasons that follow, the Court finds that (a) all of Plaintiffs claims against Global and Kaczor, as well as Plaintiffs claims against Bobko based on the Global transactions, are subject to an enforceable forum-selection clause mandating that the parties litigate their disputes in Poland, and (b) that Global, Kaczor, and Bobko did not waive their right to invoke this forum-selection clause. The Court concludes, however, that there is no evidence that Plaintiffs claims against Affordable Kitchens, Atlas Kitchens, Denton, or Plaintiffs remaining claims against Bobko (based on the conduct of Affordable Kitchens and Atlas Kitchens), are governed by the Venture Agreement; thus, these claims are not subject to the forum-selection clause.

A. The Enforceability of Forum-Selection Clauses

The Second Circuit has set forth a four-part test for analyzing motions to dismiss a complaint based on a forum-selection clause.

The first inquiry is whether the clause was reasonably communicated to the party resisting enforcement. The second step requires us to classify the clause as mandatory or permissive, i.e., to decide whether the parties are required to bring any dispute to the designated forum or simply permitted to do so. Part three asks whether the claims and parties involved in the suit are subject to the forum selection clause.

If the forum clause was communicated to the resisting party, has mandatory force and covers the claims and parties involved in the dispute, it is presumptively enforceable. The fourth, and final, step is to ascertain whether the resisting party has rebutted the presumption of enforceability by making a sufficiently strong showing that “enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.”

Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir.2007) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)) (emphases in original) (citations omitted).

1. Whether the Clause Was Reasonably Communicated

Plaintiff does not contest that the first prong of the Phillips test is satisfied here. While Plaintiff argues that the clause could not have been reasonably communicated to some of the non-signatory defendants, Plaintiff confuses the test. The question is whether the clause was “reasonably communicated to the party resisting enforcement ” of the clause, id. at 383 (emphasis added), which is Plaintiff, not any of the Defendants. As nominee for Atlas Meble, Plaintiff seeks to enforce the terms of the Venture Agreement and therefore cannot, and does not, argue that it was unaware of the clause’s existence.

2. Whether the Clause Is Mandatory

The second question is whether the clause is mandatory or permissive. Although the parties disagree on the proper translation of the forum-selection clause, Defendants argue that, even under Plaintiffs translation, the language of the clause is mandatory. That translation states that “[a]ll disputes arising out of this agreement, the sides agree to be decided in a court competent to the seat of the seller.” (Krol Deck, Ex. A, at PL000354.) Defendants contend that the translation “designates the courts of Poland — the seat of the seller [ (Plaintiff) ], a Polish company — as the only appropriate forum for the resolution of any disputes arising out of this Agreement.” (Def. Mem., at 7-8.) Conversely, Plaintiff argues that “the more correct interpretation [of the forum-selection clause] would give the seller [ (Plaintiff) ] the power to choose the court” (Reply Memorandum of Law in Response to Defendants’ Cross Motion to Dismiss and for- Summary Judgment, dated Mar. 15, 2012 (“PL Reply”) (Dkt. 44), at 9), and that Plaintiff has acted in accordance with this interpretation, by choosing to litigate in this jurisdiction (id.). The Court finds that the clause is mandatory and that it requires the parties to the Venture Agreement to litigate in Poland.

Forum-selection clauses can take one of two forms: either the clause is permissive, i.e., the contracting parties intended “to agree on a potential situs for suit so as to guarantee that at least one forum will be available to hear their disputes,” or, alternatively, the clause is mandatory, i.e., the contracting parties intended “to agree in advance on a forum where any and all of their disputes must be brought to eliminate the surprise of having to litigate in a hostile forum.” Phillips, 494 F.3d at 386 (emphasis in original). “Mandatory forum selection clauses ... require that disputes must be brought in the designated forum, to the exclusion of all other fora where jurisdiction may also lie.” Global Seafood Inc. v. Bantry Bay Mussels Ltd., 659 F.3d 221, 225 (2d Cir.2011) (citing Phillips, 494 F.3d at 386) (emphasis in original). By contrast, “a permissive forum-selection clause ‘only confers jurisdiction in the designated forum, but does not deny plaintiff his choice of forum, if jurisdiction there is otherwise appropriate.’ ” Id. (quoting Phillips, 494 F.3d at 386); see also John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs. Inc., 22 F.3d 51, 53 (2d Cir.1994) (“‘[Wjhen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties’ intent to make jurisdiction exclusive.’ ” (quoting Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989))).

“In determining whether a forum-selection clause is mandatory, the initial focus is on the language of the contract.” Global Seafood, 659 F.3d at 225 (quotation marks and citation omitted). Thus, “[a] forum selection clause is considered mandatory where: (1) ‘it confers exclusive jurisdiction on the designated forum’ or (2) ‘incorporates obligatory venue language.’ ” Id. (quoting Phillips, 494 F.3d at 386).

Boutari and Global Seafood, cited above, offer examples of cases where the requisite mandatory language was missing in the forum-selection clauses at issue. In Boutari, the court held that a forum-selection clause stating that “[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts” was permissive, because it did not contain a “clear indication” that it was granting exclusive jurisdiction to the Greek courts. 22 F.3d at 52-53. Likewise, in Global Seafood, the court held that the phrase “is governed by Irish Law and the Irish Courts” was permissive, as the court could not find that “the term ‘govern’ — standing alone — impart[ed] a clear and unambiguous intent by the parties to confer exclusive jurisdiction on Irish Courts or to select Ireland as the obligatory venue.” 659 F.3d at 226. The court noted that “governed” was not “accompanied by a phrase analogous to ‘are to be brought,’ i.e., specific language that actively channels the suit to a particular court, which would indicate an intent to make the Irish courts the only courts that can govern disputes.” Id. (emphasis in original).

By contrast, where the clause at issue does specify an obligatory venue — one where the dispute is to be decided — it is mandatory. For example, in Phillips, also cited above, the court held that a clause instructing that “any legal proceedings that may arise out of [the agreement] are to be brought in England” was mandatory, because the phrase “ ‘are to be brought’ establishes England as an obligatory venue.” 494 F.3d at 386-87. Likewise, the court extended this ruling to a clause that said “any disputes arising under this Bill of Lading to be decided in London,” finding that the phrase “to be decided” made the clause mandatory. Macsteel Int’l USA Corp. v. M/V Larch Arrow, her engines, boiler, etc., 354 Fed.Appx. 537, 540 (2d Cir.2009) (emphasis in original); see also Central Nat’l-Gottesman, Inc. v. M.V., 204 F.Supp.2d 675, 678 (S.D.N.Y.2002) (same) (collecting cases). As the court in Central NationaV-Gottesman explained, “rather than simply stating that the court in London shall have jurisdiction over all disputes, [the clause] actually makes explicit that such disputes are to be resolved in that forum and nowhere else.” 204 F.Supp.2d at 678.

Like the clauses in Phillips, Mac-steel, and Central National-Gottesman, the forum-selection clause here provides that “[a]ll disputes arising out of this agreement, the sides agree to be decided in a court competent to the seat of the seller.” (Krol Deck, Ex. A, at PL000354 (emphasis added).) “The ‘to be’ language makes the forum selection clause mandatory.” Macsteel, 354 Fed.Appx. at 540. Unlike the clauses in Boutari and Global Seafood, the forum-selection clause here does not simply confer jurisdiction on a court, but rather contains that additional language — the phrase “to be decided”— “mak[ing] explicit that ... disputes are to be resolved in [the forum indicated] and nowhere else.” Central Nat'l-Gottesman, 204 F.Supp.2d at 678.

Of course, the forum-selection clause in the Venture Agreement is slightly different than the clauses at issue in the cases cited above because the clause does not specify a particular court or jurisdiction by name. Yet, despite the differing interpretations offered by the parties, the Court finds that the phrase “court competent to the seat of the seller” is referring to Polish courts and does not, as Plaintiff suggests, mean that Plaintiff can choose the forum.

First, the plain language of the clause supports Defendants’ interpretation of the clause as requiring litigation in a Polish court. The relevant dictionary definitions of “competent” are “[t]he capacity of an official body to do something” such as “the court’s competence to enter a valid judgment,”- Blacks Law Dictionary 322 (9th ed.2009), or “legally fit or qualified,” Webster’s II New Riverside University Dictionary 290 (1994); see also Blacks Law Dictionary, at 322 (referring the term “Competent Court” to one of the definitions of “Jurisdiction,” specifically “a court’s power to decide a case or issue a decree”). The relevant definition of “seat” is “[t]he center of some activity” such as “the seat of government.” Id. at 1470. Read together, a “court competent to the seat of the seller” is plainly not giving the seller the power to choose the court outright, but rather specifying that lawsuits must be brought in a court with jurisdiction over the “center” of the seller’s activity, ie. its headquarters or principal place of business. Here, the undisputed facts show that the seller, Atlas Meble, is a Polish limited liability company (PI. 56.1 Stmt. ¶ 3) that has its “registered office” in Poland (Def. 56.1 Stmt. ¶ 2). The language of the forum-selection clause thus appears to direct disputes to a court with jurisdiction over Atlas Meble’s headquarters in Poland.

Second, even assuming the clause is ambiguous, the Court arrives at the same result. It is undisputed that the Venture Agreement was drafted (in Poland) by Atlas Meble (id. ¶ 15), and thus any ambiguity should be construed against Plaintiff. See Goldberg & Connolly v. New York Community Bancorp, Inc., 565 F.3d 66, 73 (2d Cir.2009). Moreover, both Bobko and Kaczor have submitted sworn affidavits stating that litigation in Poland was a term on which Atlas Meble insisted throughout the parties’ negotiations of the Venture Agreement (Bobko Aff. ¶ 3; Kaczor Aff. ¶ 3), and Plaintiff has offered nothing to refute this extrinsic evidence of the contracting parties’ intent. Thus, on the record presented, there is no genuine issue of material fact as to how the forum-selection clause should be interpreted. See Prof'l Offshore Opportunity Fund, Ltd. v. Huifeng Bio-Pharmaceutical Technology, Inc., No. 11 Civ. 4321(LAK), 2011 WL 5598213, at *2 (S.D.N.Y. Nov. 15, 2011) (holding that where “ ‘the extrinsic evidence creates no genuine issue of material fact and permits interpretation of the agreement as a matter of law,’ summary judgment is appropriate.” (quoting Faulkner v. Nat’l Geog. Soc’y, 452 F.Supp.2d 369, 375-76 (S.D.N.Y.2006))).

Accordingly, the Court concludes that both the plain meaning of the forum-selection clause and all of the evidence in the record support the conclusion that the phrase “competent to the seat of the seller” means the court with jurisdiction over Atlas Meble’s headquarters or principal place of business, which is in Poland.

3. Whether the Parties and Claims Are Subject to the Forum-Selection Clause

Having decided that the forum-selection clause is mandatory, the next step for the Court is to determine whether the parties and claims in this ease are subject to that mandatory forum-selection clause. Although citing no case law or further elaborating on its objection, Plaintiff argues that the clause is unenforceable, because three of the Defendants are not parties to the Venture Agreement, and “several causes of action ... fall outside the scope of that particular venture agreement.” (PI. Reply, at 9.)

a. Parties

“[T]he fact a party is a non-signatory to an agreement is insufficient, standing alone, to preclude enforcement of a forum selection clause.” Aguas Lenders Recovery Group v. Suez, S.A., 585 F.3d 696, 701 (2d Cir.2009) (citing cases). Courts have held that forum-selection clauses can be enforced against non-signatories who are “closely related” to a signatory, “such that ‘enforcement of the forum selection clause is foreseeable by virtue of the relationship between the signatory and the party sought to be bound.’ ” KTV Media Intern., Inc. v. Galaxy Group, LA LLC, 812 F.Supp.2d 377, 386 (S.D.N.Y. 2011) (quoting MGM Studios Inc. v. Canal + Distrib. S.A.S., No. 07 Civ. 2918(DAB), 2010 WL 537583, at *5 (S.D.N.Y. Feb. 9, 2010)). Whether a party is closely related to a signatory is a fact-specific inquiry, but “it is well established that a range of transaction participants, parties and non-parties, should benefit from and be subject to forum selection clauses.” Id. (quoting Atlasjet Uluslararasi Havacilik A.S. v. EADS Aeroframe Servs., LLC, No. 07 Civ. 212(RJS), 2009 WL 436420, at *4 (S.D.N.Y. Feb. 17,2009)) (collecting cases); see also, e.g., LaRoss Partners, LLC v. Contact 911 Inc., 874 F.Supp.2d 147, 161 (E.D.N.Y.2012) (holding non-signatory to be closely related to signatory, where evidence showed that the two companies were intimately connected); Weingrad v. Telepathy, Inc., No. 05 Civ. 2024(MBM), 2005 WL 2990645, at *6 (S.D.N.Y. Nov. 7, 2005) (holding that defendants were closely related where plaintiff alleged that they acted in concert, and plaintiffs claims were substantially identical with respect to each defendant and arose out of the defendants’ relationships with one another).

While this issue mainly arises where the party resisting enforcement of the forum-selection clause is a non-signatory, courts have allowed “closely related” non-signatories to invoke forum-selection clauses as well. See Thibodeau v. Pinnacle FX Investments, No. 08-CV-1662 (JFB)(ARL), 2008 WL 4849957, at *5 n. 4 (E.D.N.Y. Nov. 6, 2008) (“[T]he Court concludes, as a matter of law, that the clause can be invoked in this case by the signatory ... as well as [non-signatory defendants].... [B]eeause [the non-signatory defendants] are alleged to be principals [of the signatory corporation] and are being sued in connection with their activities at [the signatory], it was foreseeable to plaintiff that the forum selection clause would be applicable to any lawsuit against these closely-related individuals in connection with their work at [the signatory].”)

Here, the party resisting enforcement of the forum-selection clause — Plaintiff, as nominee for Atlas Meble — does not, nor could it, contest that it is subject to the forum-selection clause, notwithstanding the fact that it is not a signatory to the Venture Agreement. See Diesel Props S.r.L. v. Greystone Bus. Credit II LLC, No. 07 Civ. 9580(HB), 2008 WL 4833001, at *12 (S.D.N.Y. Nov. 5, 2008) (“Under New York law, an assignee cannot sue to enforce its rights under the contract without also assuming the other terms of the contract, including a forum selection clause.” (quoting GMAC Comm. Credit, LLC v. Dillard Dep’t Stores, Inc., 198 F.R.D. 402, 407 (S.D.N.Y.2001))). Instead, Plaintiff objects to the invocation of the forum-selection clause by the non-signatory defendants.

According to Plaintiff, there were three non-parties to the Venture Agreement (Affordable Kitchens, Atlas Kitchens, and Denton) leaving Global, Bobko, and Kaczor as the alleged signatories. (PL Reply, at 9.) Bobko and Kaczor actually dispute that they signed the Agreement in their individual capacities, contending they signed only on behalf of Global, and the language of the Venture Agreement itself appears to support this. (See Krol Deck, Ex. A, at PL000348 (Agreement stating that Bobko and Kaczor appeared “in the name of’ Global).) The Court, however, need not resolve this issue, as, regardless of whether Bobko and Kaczor are treated as signatories or non-signatories to the Venture Agreement, they are undoubtedly “closely related” to Global. They were two of the four shareholders of Global, and, at a minimum, they did sign the Venture Agreement on Global’s behalf. The record also indicates that they were Global’s chief communicators with Atlas Meble with respect to the two Orders that Global placed. (See Def. Mem., Exs. A, A-L) Under these circumstances, it was certainly foreseeable that Bobko and Kaczor would seek to invoke the forum-selection clause as to any claims asserted against them by Plaintiff, arising out of their involvement with Global, and they are entitled to do so. See, e.g., Firefly Equities, LLC v. Ultimate Combustion Co., 736 F.Supp.2d 797, 799-800 (S.D.NV.2010) (finding corporate president who signed contract on behalf of company “closely related” to company) (collecting cases).

As for non-signatories Affordable Kitchens, Atlas Kitchens, and Denton, while it is likely that these entities are also “closely related” to Global, this is ultimately irrelevant because, for the reasons discussed in the next section, below, Plaintiffs claims against these companies (as well as Plaintiffs claims against Bobko, relating to his involvement with Affordable Kitchens and Atlas Kitchens) cannot be found to arise under the Venture Agreement in the first place. As these claims do not arise under the Agreement, they are not subject to the forum-selection clause contained in the Agreement.

b. Claims

The next issue is whether, or to what extent, Plaintiffs claims in this action are subject to the forum-selection clause. The clause itself states that it applies to “[a]ll disputes arising out of this agreement,” ie., the Venture Agreement. (Krol Decl., Ex. A, at PL000354.)

“The scope of [a] forum selection clause is a contractual question that requires the courts to construe the clause and, where ambiguous, to consider the intent of the parties.” New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 33 (2d Cir.1997). A court thus must “examine the substance of [the] claims, shorn of their labels” and compare how they relate to the language of the given forum-selection clause. Phillips, 494 F.3d at 388.

In Phillips, the Court of Appeals addressed a similar forum-selection clause to the one at issue here and narrowly construed the term “arising out of’ as meaning “to originate from a specified source.” Id. at 390 (citing Webster’s Third New International Dictionary 117 (1981)). The court held that “arising out of’ did not mean “encompassing all claims that have some possible relationship with the contract, including claims that may only ‘relate to,’ ‘be associated with,’ or ‘arise in connection with’ the contract.” Id. Applying its construction of the parties’ contract language to the underlying facts in Phillips, the Court of Appeals held that the plaintiffs federal copyright claims did not originate from their recording contract because the plaintiff, the party resisting enforcement of the forum-selection clause, did “not rely on the recording contract to establish his ownership of the relevant copyrights, but on his authorship of the work.” Id. at 390-91.

Here, as discussed below, and unlike the claims in Phillips, all of Plaintiffs claims against Global and Kaczor, and some of its claims against Bobko, arise out of the Venture Agreement. Plaintiffs claims against Affordable Kitchens, Atlas Kitchens, Den-ton, and Bobko (as the alter ego of Affordable Kitchens and Atlas Kitchens), however, do not arise out of the Agreement.

i. Claims Against Global, Kaczor, and Bobko (Based on the Global Transactions)

Plaintiff alleges that Global breached the Venture Agreement and Order Contracts by failing to make payment “as required by” those agreements. (Compl. ¶¶ 36-40.) Plaintiff also seeks to pierce the corporate veil and hold Kaczor and Bobko liable for Global’s conduct, or to hold Kaczor and Bobko personally liable for the transactions executed under the Venture Agreement. (See PI. Mem., at 15-16; PI. 56.1 Stmt. ¶¶ 12, 13, 28.) Any claims based on a breach of the Venture Agreement are plainly subject to the forum-selection clause, including Plaintiffs claims for breach of contract against Global, Kaczor, and Bobko (based on Global’s orders). As in Phillips, the “contract claim for money owed and due falls squarely under the forum-selection clause: the contract establishes [Plaintiffs] right to receive, and [Defendants’] duty to pay” for goods received and “sets forth the relevant conditions.” 494 F.3d at 387.

Plaintiffs other claims against Global, Kaezor, and Bobko (based on Global’s orders) — for goods sold and delivered, unjust enrichment, and account stated — also arise out of the Venture Agreement, as they are based on alleged rights and duties stemming from the Agreement. In its claim for goods sold and delivered, Plaintiff alleges that Atlas Meble delivered the goods to Global “in accordance with” the Order Contracts (made under the Venture Agreement), and that Atlas Meble did not receive payments due from these sales, as required by the Uniform Commercial Code (“UCC”). • (Compl. ¶¶ 41-47.) In its claim for unjust enrichment, Plaintiff explicitly asserts that Defendants “failed to pay the amount due on the delivered goods pursuant to each Order Contract” and that Defendants have been unjustly enriched by keeping the received goods without payment. (Id. ¶¶ 49, 53.) In its claim for account stated, Plaintiff alleges that Atlas Meble produced, sold and delivered furniture to Global, that Global refused payment, and that the parties had an agreement that Global would pay. (Id. ¶¶ 30-34.) Resolution of each of these claims requires an analysis of Atlas Meble’s rights and duties under the Venture Agreement (and, by extension, the Order Contracts), which govern all sales and delivery of furniture from Atlas Meble to Global; therefore each claim must be said to arise out of the Venture Agreement. See Cfirstclass Corp. v. Silverjet PLC, 560 F.Supp.2d 324, 330 (S.D.N.Y.2008) (applying forum-selection clause to all of plaintiffs claims where claims were “expressly premised on assertions regarding [plaintiffs] rights ... pursuant to two agreements ... and resolution of these claims [would] thus necessarily require analysis of the parties’ rights and duties under the agreements”).

ii. Claims against Affordable Kitchens, Atlas Kitchens, Denton, and Bobko (as Alter Ego of Affordable Kitchens and Atlas Kitchens )

Whether the claims against Affordable Kitchens, Atlas Kitchens, Denton, and Bobko (based on his involvement with Affordable Kitchens and Atlas Kitchens), are subject to the forum-selection clause is a different question. Defendants argue that “[a]ll of the Plaintiffs claims in the instant action sound in contract and are based on rights and duties originating from the underlying Venture Agreement,” without providing a factual or legal theory for how the terms of the Venture Agreement apply to these non-signatory defendants. (Def. Mem., at 11.) Plaintiff does not contend that there is any explicit written agreement between Atlas Meble, on the one hand, and Affordable Kitchens, Atlas Kitchens, or Denton, on the other, but rather asserts that the “existence of a contractual relationship can be imputed to the fact that Atlas Meble shipped and ordered furniture to the[se] [defendants.” (PL Mem., at 11.) Plaintiff argues that Bobko is the alter ego for Atlas Kitchens and Affordable Kitchens and is therefore liable for any balances owed by these entities.

Plaintiffs contract claims against Affordable Kitchens, Atlas Kitchens, and Denton do not arise out of the Venture Agreement. The plain language of the Venture Agreement states that it is between Global and Atlas Meble, the Agreement only purports to govern claims between these two entities; and Plaintiff has not pointed to any evidence that other entities were subject to the Agreement’s terms. For the same reasons, any non-contract claims that Plaintiff is asserting against Affordable Kitchens, Atlas Kitchens, and Denton must be based on duties or obligations existing separate and apart from the Venture Agreement.

Given that the forum-selection clause only covers disputes arising out of the Venture Agreement, Plaintiffs claims against Affordable Kitchens, Atlas Kitchens, Denton, and Bobko (as the alter ego of Affordable Kitchens and Atlas Kitchens), are not subject to the forum-selection clause.

4. Whether Enforcement of the Forum-Selection Clause Is Unreasonable

Where, as here, the first three prongs of the Phillips test are satisfied (at least with respect to certain defendants and claims), the forum-selection clause is accorded a presumption of enforceability against Plaintiff. Dismissal of the claims that are subject to the clause is appropriate unless Plaintiff “makes a prima facie showing that the clause should be set aside.” Phillips, 494 F.3d at 392 (citing M/S Bremen, 407 U.S. at 15, 92 S.Ct. 1907; New Moon Shipping, 121 F.3d at 29). The forum-selection clause should not be set aside, unless “(1) its incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forum state; or (4) trial in the selected forum will be so difficult and inconvenient that the plaintiff effectively will be deprived of his day in court.” Id.

Plaintiff has failed to make a showing sufficient to justify setting aside the clause in this case. Plaintiffs sole argument in this regard is that it would be unjust to enforce the forum-selection clause because it would be “impossible for the Polish courts to establish personal jurisdiction over any of the Defendants in Poland.” (PL Reply, at 9.) Yet, the potential unavailability of certain claims, or even the entire action, in the selected forum is insufficient to make the forum-selection clause unreasonable or unjust. See BNY AIS Nominees Ltd. v. Quan, 609 F.Supp.2d 269, 278 (D.Conn.2009) (holding that the potential unavailability of certain legal theories in selected forum was insufficient to render forum-selection clause unreasonable or unjust); see also New Moon Shipping, 121 F.3d at 32-33 (expressing concerns with considering statute of limitations, when determining reasonableness of forum selection).'

Moreover, Plaintiff has not provided any evidence in support of its contention that Polish courts would lack personal jurisdiction over any of the Defendants, let alone Global, Kaezor, or Bobko — the only defendants capable of enforcing the clause. “Unsubstantiated speculation that no remedy is available in the designated forum .... is wholly inadequate to meet the heavy burden [Plaintiff] bear[s] to show unreasonableness.” New Moon Shipping, 121 F.3d at 33. Accordingly, the Court finds that the forum-selection clause is enforceable.

B. Whether Global, Kaezor, or Bobko Waived Enforcement of the Forum-Selection Clause

Plaintiff also objects to enforcement of the forum-selection clause by Global, Kaezor, and Bobko, on the ground that they waived any right to invoke the forumseléction clause “by failing to object as to venue” and “not pleading it as an affirmative defense.” (PI. Reply, at 8.)

There is, however, “a ‘strong public policy’ in favor of enforcing forum selection clauses, and as such, waiver of a forum selection clause ‘should not be found lightly.’ ” Wachovia Bank Nat'l Ass’n v. EnCap Golf Holdings, LLC, 690 F.Supp.2d 311, 327 (S.D.N.Y.2010) (citations omitted); cf. Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985) (“Waiver [of the right to arbitrate] is not to be lightly inferred.”); Scherk v. Alberto-Culver Co., 417 U.S. . 506, 517, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (“A forum selection clause is ‘an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction.’ ” (quoting M/S Bremen, 407 U.S. at 13-14, 92 S.Ct. 1907)). Moreover, although, as Plaintiff would urge, courts have often viewed forum-selection clauses as merely raising a “venue” issue, and have thus strictly applied the waiver rule that would be applicable to a venue defense — i.e., that reliance on the clause is waived if not raised in a first responsive pleading or Rule 12(b)(3) motion made in lieu of answering, see, e.g., BAX Global, Inc. v. Ocean World Lines, Inc., No. 07 Civ. 10457(NRB), 2009 WL 3001816, at n. 7 & *4 (S.D.N.Y. Sept. 18, 2009) — other courts have viewed the issue under broader waiver principles, see, e.g., In re Rationis Enterprises, Inc. of Panama, No. 97 Civ. 9052(RO), 1999 WL 6364 (S.D.N.Y. Jan. 7, 1999), or have employed contract principles in their analyses, see, e.g., Am. Int'l Group Eur. S.A. (Italy) v. Franco Vago Int’l, Inc., 756 F.Supp.2d 369, 380 (S.D.N.Y.2010); see also Ferraro Foods, Inc. v. M/V Izzet Incekara, No. 01 Civ. 2682(RWS), 2001 WL 940562, at *3 (S.D.N.Y. Aug. 20, 2001) (analyzing motion to enforce forum-selection clause under both a venue and contract theory). On the facts presented here, and in light of the strong public policy against finding waiver of forum-selection clauses, this Court finds that Plaintiffs narrow waiver argument is unpersuasive.

As a preliminary matter, the Court notes that there is no specific Federal Rule of Civil Procedure designed to request dismissal of a suit based upon a valid forum-selection clause. See Trade-Comet, com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir.2011) (“[N]either the Supreme Court, nor this Court, has ‘specifically designated a single clause of Rule 12(b)’ — or an alternative vehicle — ‘as the proper procedural mechanism to request dismissal of a suit based upon a valid forum selection clause.’ ” (quoting Asoma Corp. v. SK Shipping Co., Ltd., 467 F.3d 817, 822 (2d Cir.2006))). As a result, there is no clear consensus among courts as to the proper procedural mechanism for moving for dismissal of an action based on a forum-selection clause, and the Second Circuit has “affirmed judgments that enforced forum selection clauses by dismissing cases for lack of subject matter jurisdiction under Rule 12(b)(1), for improper venue under Rule 12(b)(3), and for failure to state a claim under Rule 12(b)(6).” Id. (internal citations omitted); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 588-89, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (enforcing a forum-selection clause through a motion for summary judgment); Rogen v. Memry Corp., 886 F.Supp. 393, 396-97 (S.D.N.Y.1995) (same).

Perhaps in light of this confusion, some courts have simply reasoned that “ ‘a forum selection clause will be deemed waived if the party invoking it has taken actions inconsistent with it, or delayed its enforcement, and other parties wou