United States District Court, D. North Dakota
ORDER GRANTING DEFENDANTS' MOTION TO
L. Hovland, Chief Judge United States District Court
the Court are two motions to dismiss. North Country
Marketing, Inc. (“North Country”) brought suit
against Mandako Agri Marketing (2010) Ltd. in North Dakota
state court in September of 2017. See Docket No.
1-3. Mandako Agri Marketing (2010) Ltd. removed the case to
this Court on October 6, 2017, and filed a motion to dismiss
on October 12, 2017. See Docket Nos. 1 and 4. North
Country filed an amended complaint on October 27, 2017, which
added Mandako International, Inc. as a defendant.
See Docket No. 7. Both Defendants (together
“Mandako”) filed a renewed motion to dismiss on
November 22, 2017. See Docket No. 22. North Country
filed a response on December 6, 2017. See Docket No.
29. Mandako filed a reply on December 20, 2017. See
Docket No. 32. For the reasons set forth below, the Court
grants Mandako's renewed motion to dismiss.
background is based on the allegations in North Country's
amended complaint, which the Court takes as true for purposes
of deciding this motion to dismiss. See Knapp v.
Hanson, 183 F.3d 786, 788 (8th Cir. 1999). North Country
is a North Dakota corporation with its principal place of
business in West Fargo, North Dakota. See Docket No.
7, p. 1. Mandako Agri Marketing (2010) Ltd. and Mandako
International, Inc. are corporations organized under the laws
of Manitoba, Canada, with their principal place of business
in Plum Coulee, Manitoba, Canada. Id.
manufactures and sells agricultural equipment, including land
rollers and vertical tillers. See Docket No. 7-1.
Mandako sells its products in the United States through a
dealership network spanning a number of states. See
Docket No. 7, p. 2. North Country began marketing Mandako
products in the United States in 2004. Id. In
exchange for its marketing services, the parties orally
agreed North Country would receive a 9% commission on its
sales of Mandako products. See Docket No. 7, p. 3.
The parties also agreed North Country would be Mandako's
exclusive sales representative for land rollers in the United
States and the exclusive sales representative for all other
Mandako products in the states of North Dakota, South Dakota,
Minnesota, Iowa, Nebraska, and Montana. Id. Along
with its sales and marketing activities, North Country also
stored and sold replacement parts for Mandako products.
See Docket No. 5. North Country received a 9%
commission on non-warranty Mandako parts sales. Id.
To accommodate storing the parts, North Country increased the
size of its headquarters. Id.
parties entered into a written Sales Representative's
Agreement (the “2004 Agreement”) on July 8, 2004.
See Docket No. 7, p. 6. The 2004 Agreement mirrored
the terms of the prior oral agreement. North Country would be
the exclusive land roller sales representative in the United
States and the exclusive dealer for other Mandako products in
the states of North Dakota, South Dakota, Minnesota, Iowa,
Nebraska, and Montana. Id. At the time of the 2004
Agreement, North Country was Mandako's only sales
representative in the United States. Id. Mandako
encouraged North Country to expand its sales territories into
other states, and Mandako did so “at great expense in
time, labor and money.” Id. Due to this
effort, North Country began “borrowing heavily to cover
expenses.” See Docket No. 7, p. 7.
of 2014, the parties signed a new sales agreement. This began
what North Country describes as “a pattern of
threatening termination of Sales Representative Agreements
with North Country and forcing North Country to enter into
new agreements with reduced territories.” See
Docket No. 7, p. 10. The parties signed subsequent sales
agreements in 2015 and 2016. See Docket No. 7, pp.
9-10. The 2016 Sales Representative's Agreement
(“2016 Agreement”) limited North Country's
exclusive representation to the states of North Dakota, South
Dakota, Minnesota, Iowa, and Wisconsin. See Docket
No. 24-1, p. 3. It also contained the following forum and
choice of law provision:
This Agreement shall be governed by and shall be construed in
accordance with the laws of Manitoba. Proper legal venue for
all matters related to this Agreements is agreed as the
closest to Winnipeg, Manitoba.
See Docket No. 24-1, p. 6. It also contained the
following integration provision:
This Agreement constitutes the entire agreement between the
parties pertaining to its subject matter and it supersedes
all prior contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification,
or amendment of this Agreement shall be binding unless
executed in writing by all parties.
September of 2017, North Country brought suit against Mandako
Agri Marketing (2010) Ltd. in North Dakota state court.
See Docket No. 1-3. The complaint contained a
panoply of claims, including wrongful termination of various
agreements, breach of various contracts, unjust enrichment,
and wrongful interference with business. See Docket
No. 10, pp. 9-21. In an attempt to follow North Dakota's
service of process laws, North Country filed the state action
summons and complaint with the North Dakota Secretary of
State. See Docket No. 1-4. On September 15, 2017,
the Secretary of State sent the summons and complaint, along
with an Admission of Service, via registered mail, to Mandako
Agri Marketing (2010) Ltd. See Docket No. 6-1.
removed the state lawsuit to this Court on October 6, 2017.
See Docket No. 1. On the same date, Mandako filed
suit in Winnipeg, Manitoba, Canada. See Docket No.
5-1. Mandako's Canadian action brought claims for, among
others, breach of contract, return of equipment, and
misappropriation of funds. See Docket No. 5-1, p. 5.
On October 12, 2010, Mandako filed a motion to dismiss the
present case arguing service of process was insufficient and,
under the choice of forum provision contained in the 2016
Agreement, the proper forum is in Winnipeg, Canada.
See Docket Nos. 4 and 5. On October 27, 2017, North
Country amended its complaint. See Docket No. 7. The
amended complaint alleges an oral North Dakota forum
selection agreement exists between the parties pursuant to a
joint venture. See Docket No. 7, p. 22. It also
added Mandako International, Inc. as a party. See
Docket No. 7, p. 1. The amended complaint and a summons were
personally served on a Mandako purchasing manager in
Manitoba, Canada on November 22, 2017. See Docket
Nos. 34 and 35. On the same date, Mandako renewed its motion
to dismiss alleging the same deficiencies asserted in its
initial motion. See Docket Nos. 22 and 23.