Fritsch, Christopher et al v. Forest River, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHRISTOPHER FRITSCH, and
LAURA FRITSCH,
Plaintiffs, OPINION AND ORDER
v.
25-cv-737-wmc
FOREST RIVER, INC.,
Defendant.
Plaintiffs Christopher and Laura Fritsch claim that defendant Forest River, Inc.,
violated the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301, when it failed
to repair defects to plaintiffs’ recreational vehicle under the terms of its express warranty.
(Pl.’s Compl. (dkt. #1) ¶¶ 8-17.) Defendant moves to transfer this case to the Northern
District of Indiana in keeping with a forum selection clause contained in the express
warranty. (Dkt. # 17, at 1.) Because the forum selection clause was a valid term of the
warranty that plaintiffs agreed to and rely upon, the court will grant defendant’s motion
to transfer.
BACKGROUND
In 2022, plaintiffs purchased an RV from an authorized Forest River dealership in
Pepin County, Wisconsin. (Pl.’s Compl. (dkt. # 1) ¶ 8.) Plaintiffs contend that they met
with employees from the dealership at the time of the sale, who provided them with loan
documents and a purchase contract. (Dkt. # 12-2, ¶ 1.) After signing the purchase contract,
dealership employees gave them a Customer Delivery and Warranty Registration Form
(the “Form”), which was the only document provided to them regarding Forest River’s
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warranty. (Fritsch Decl. (dkt. # 26) ¶¶ 9-10). Right above the signature line, that form
states:
I have had the opportunity to review the FOREST RIVER, INC.
Limited warranty during the purchase of this unit and I understand
that this product is designed to be used for recreational camping and
travel. I have been given the opportunity to make notations in the
space provided above, have observed or received satisfactory
explanation to all questions regarding items listed during the delivery
process.
(Dkt. # 26-1, at 1.)
Plaintiffs represent that they signed the form without reviewing the text of the
warranty itself and were given a copy of it (“the Form”). (Fritsch Decl. (dkt. # 26) ¶ 10.)
The seller later added its own signature and some additional markings to the Form, then
retained that copy. (Dkt. # 18-2, at 1.) This single form was the only information provided
to plaintiffs regarding the warranty. (Fritsch Decl. (dkt. # 26) ¶ 10.) Nevertheless, this is
the warranty that plaintiffs seek to enforce under the MMWA. (Pl.’s Compl. (dkt. #1)
¶ 17.)
The entire warranty is five pages long, with its additional terms listed in the same
font size. (Dkt. # 18-1, at 1-5.) There is a forum selection clause on the fifth page under a
heading labeled “Legal Remedies,” which states:
Exclusive jurisdiction for deciding legal disputes relating to this
limited warranty, an alleged breach of warranty, breach of implied
warranties, or representations of any kind must be filed in the courts
within the state of Indiana.
Id. at 5. This clause is in the same font size as the other terms and is bolded. Id.
OPINION
Based on the forum selection clause, defendant moved to transfer this case to the
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Northern District of Indiana under 18 U.S.C. § 1404(a). Plaintiffs argue that transfer is
improper because the forum selection clause itself is invalid. The court addresses the
governing legal standards for this issue below before turning to the parties’ arguments.
I. Legal Standards
A. Transfer of Venue under 28 U.S.C. § 1404(a)
Under 28 U.S.C. § 1404(a), for the convenience of the parties and witnesses, a
district court may transfer any civil action to any other district or division where it might
have been brought. Barrington Group, Ltd. v. Genesys Software Systems, Inc., 239 F. Supp. 2d
870, 872-73 (E.D. Wis., 2003). A district court considering whether to grant a § 1404(a)
motion to transfer must weigh both the convenience to the parties and various public
interest factors, including the relative congestion of the court calendar for the proposed
transferee court and the local interest in deciding local controversies at home. Atl. Marine
Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 62 (2013).
However, when a party moves to transfer under § 1404(a) to enforce a valid forum
selection clause, the forum selection clause should be given controlling weight in “all but
the most exceptional cases.” Id. at 63. More specifically, the presence of a valid forum
selection clause requires district courts to modify the typical § 1404(a) analysis in three
ways. Id. First, the consideration of the plaintiff’s choice of forum merits no weight, as the
plaintiff contracted to bring suit only in the specified forum. Id. Instead, in defying the
forum-selection clause, plaintiff bears the burden of showing why the court should not
transfer the case to the forum originally agreed upon by the parties. Id. at 64. Second, the
court should not consider the private interests of the parties, as whatever inconvenience
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they may have to suffer would have been foreseeable at the time of contracting; as a result,
the court may only consider public-interest arguments in deciding the transfer motion. Id.
Third, when a party bound by a forum-selection clause opts to file suit in a different forum,
a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules,
which may be a factor in the public interest analysis. Id. In sum, absent a showing by
plaintiffs that there is a good reason not to enforce the forum selection and a strong public
interest basis for their choice of forum, the court should grant the motion to transfer.
B. The Magnuson-Moss Warranty Act
Of course, those changes to the § 1404(a) analysis are predicated on the existence
of a valid forum selection clause. In this case, the forum selection clause at issue is
incorporated as a term of the limited warranty. Further, the MMWA (“the Act”) allows
consumers to sue for damages resulting from the failure of a supplier, warrantor, or service
contractor to comply with any obligation under the warranty or the Act. Voelker v. Porsche
Cars N. Am., Inc., 353 F.3d 516, 525 (7th Cir. 2003) (quoting 15 U.S.C. § 2310(d)(1)).
At least in part, the purpose of the Act is to “improve the adequacy of information
available to consumers” by requiring warrantors to “fully and conspicuously disclose in
simple and readily understood language the terms of and conditions of such warranties.”
15 U.S.C. § 2302(a). To achieve this purpose, § 2303(b) provides that the terms of a
limited warranty are to be made available to consumers before the sale of a product.
In addition, the Federal Trade Commission is responsible for promulgating rules for
how sellers and warrantors must make such warranty terms available to a consumer before
sale. 15 U.S.C. § 2302(b)(1). These rules recognize many ways a warrantor may satisfy
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the pre-sale availability requirement. For example, a warrantor may make the terms of the
limited warranty available on its website, provide the seller with a copy of the written
warranty with every warranted consumer product, or provide a sign, notice, or other
attachment that discloses the text of the warranty. 16 C.F.R. § 702.3(b).
C. Forum Selection Clauses
Finally, where a warranty agreement contains a forum selection clause, the clause is
presumed to be valid and should be enforced unless the opposing party “could clearly show
that enforcement would be unreasonable and unjust, or that the clause was invalid for such
reasons as fraud or overreaching.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15
(1972). The Seventh Circuit has articulated three sets of circumstances that “will render a
forum selection clause ‘unreasonable’:
(1) If their incorporation into the contract was the result of fraud,
undue influence or overweening bargaining power;
(2) if the selected forum is so ‘gravely difficult and inconvenient that
[the complaining party] will for all practical purposes be deprived
of its day in court’; or
(3) if enforcement of the clauses would contravene a strong public
policy of the forum in which the suit is brought, [as] declared by
statute or judicial decision.
Jackson v. Payday Fin., LLC, 764 F.3d 765, 776 (7th Cir. 2014) (quoting M/S Bremen, 407
U.S. at 18).
Regardless, federal law governs the validity of forum selection clauses in disputes
arising under § 1404(a), and the court must make an independent judgment as to whether
to enforce the clause. IFC Credit Corp. v. Aliano Bros. General Contractors, Inc., 437 F.3d
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606, 608 (7th Cir. 2006). At the same time, in making this independent judgment, the
court must consider the underlying state policy regarding forum selection clauses, as this
bears on whether transferring the case would be in the interest of justice. Wins Equip., LLC
v. Rayco Mfg., Inc., 668 F. Supp. 2d 1148, 1153 (W.D. Wis. 2009).
II. Analysis
Given the presumption that transfer to the specified venue is proper when there is
a valid forum selection clause, the heart of the analysis in this case turns on the validity of
that clause. To this end, plaintiffs argue that the court should deny defendant’s motion to
transfer because: (1) defendant materially and fraudulently modified the terms of the
Warranty Registration Form, rendering it non-binding; (2) the forum selection clause was
not part of the bargain struck for the purchase of the RV because the seller never made the
text of the warranty available to plaintiffs before the purchase as required by the MMWA;
and (3) the characteristics of the Form and the circumstances surrounding its signing
render it unconscionable and unenforceable under Wisconsin law. Plaintiffs also argue
that absent a valid forum selection clause, plaintiffs’ choice of venue should be honored
under the typical § 1404(a) analysis. The court considers each of these arguments in turn.
A. The Form was not materially altered such that it rendered the terms of the
warranty unenforceable.
As a threshold matter, plaintiffs argue that the version of the Form provided to this
court by defendant is not the copy signed by plaintiffs, and that this voids any provisions
binding plaintiffs to the terms and conditions of the warranty. Plaintiffs rely on Article 3
of the Wisconsin Uniform Commercial Code in making this argument. Wis. Stat.
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§ 403.407. However, Article 3 applies only to negotiable instruments as defined in Wis.
Stat. § 403.104, such as checks, promissory notes, drafts, and certificates of deposit. Wis.
Stat. § 403.102. A limited warranty provided with the sale of a good, such as the RV in
this case, is governed by Article 2 of the UCC. Wis. Stat. § 402.102. Article 2 does not
contain any analogous provision regarding alteration, but does have a provision describing
the legal effect of additional terms that materially alter the original bargain. Wis. Stat.
§ 402.207. Here, plaintiffs do not argue that seller materially altered the original forum
selection clause or other terms of the warranty, but rather added markings and the seller’s
signature to the Form. Since those markings and signature are not terms, § 402.207 does
not apply.
Even if § 402.207 applied to the Form, the alterations made by defendant do not
render the terms of the warranty unenforceable because none are material. Specifically,
the alterations include the addition of the date and the seller’s signature under the
plaintiffs’ signatures. (Dkt. #26-1 and Dkt. #18-2.) There is also some handwritten
numerical data relating to the propane system, and hand-drawn lines indicating that the
RV was inspected in various ways. (Dkt. # 18-2.) Though these differences altered the
version of the Form in plaintiffs’ possession, which includes no handwritten marks aside
from plaintiffs’ signatures, the alterations are plainly immaterial. See U.C.C. § 2-207 (Am.
Law Inst. & Unif. Law Comm’n 1977), cmt. 4 (defining terms that “materially alter” the
contract as those that result in surprise or hardship to the other party).
In particular, the alterations do not modify the forum selection clause, nor do they
modify any obligation of defendant included in the terms of the limited warranty.
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Therefore, the Form, in which plaintiffs acknowledged that they read the warranty, is valid,
and the seller’s alterations to the Form do not automatically render the terms of the
warranty unenforceable under either Wis. Stat. §§ 403.407 or 402.207.
B. The forum selection clause is a binding term of the warranty.
Given that the Warranty Registration Form is valid, the next consideration is
whether the forum selection clause is a binding term of the warranty. In particular,
plaintiffs contend that defendant’s failure to provide them with the text of the warranty
upon the sale of the RV in compliance with 15 U.S.C. § 2302 and 16 CFR § 702.3, means
that the terms were not “reasonably communicated” and cannot bind them. However,
plaintiffs cite no authority for the proposition that failure to comply with these
requirements automatically renders the terms of a warranty unenforceable, nor could the
court find any such authority. Moreover, defendant did not fail to provide plaintiffs with
the text of the warranty before the sale, but rather the dealership that sold the RV failed
to do so. Under 16 CFR § 702.3(b)(1)(i), a warrantor, such as defendant, is required to
provide sellers, like the dealership, with warranty materials necessary for such sellers to
comply with their disclosure requirements under § 702.3(a). There is no allegation here
that defendant ever failed to provide the dealership with such materials, and no evidence
in the record suggesting such a failure.
In its reply brief, defendant also urges this court to follow Kraft v. Staten Island Boats,
Inc., 715 F.Supp. 2d 464 (S.D.N.Y. 2010), and find that because there is no evidence that
defendant failed to follow its pre-sale warranty disclosure requirements under the MMWA,
that the warranty terms are enforceable. Id. at 478. Though this is the only case defendant
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cites, other courts have followed the reasoning in Kraft to distinguish between the duties
of warrantors and sellers under the MMWA, and similarly have held that a manufacturer’s
warranty is not rendered unconscionable under the MMWA due to a seller’s violations.
E.g., Hoopes v. Gulf Stream Coach, Inc., No. 10-cv-365, 2014 WL 4829623, at *8-9 (N.D.
Ind. Sep. 29, 2014).1
On the other hand, plaintiffs argue that it is immaterial whether it was the warrantor
or the seller who failed to comply with the MMWA because parties cannot consent to
undisclosed warranty terms, and the lack of disclosure voids the terms. In particular,
plaintiffs rely on DeMidio v. REV Rec. Gr., Inc., No. 17-cv-326, 2018 WL 1744958, at *3
(N.D. Ind. April 10, 2018), and Sgouros v. TransUnion Corp., 817 F.3d 1029, 1036 (7th
Cir. 2016). In DeMidio, the court held that an arbitration clause included in a limited
warranty was unenforceable against the plaintiffs absent evidence that the plaintiffs
actually agreed to that term, aside from having reviewed the text of the warranty. 2018
WL 1744958 at *4. However, the key factual distinction between DeMidio and the present
case is that unlike in DeMidio, plaintiffs signed the Warranty Registration Form,
affirmatively acknowledged that they had the opportunity to review the Forest River
limited warranty, and desired to register it for their newly purchased RV. So, too, the key
factual distinction between this case and Sgouros is the presence of the signed Form. In
Sgouros, the Seventh Circuit found no indication that a plaintiff-consumer agreed to a credit
1 Curiously, defendant did not cite Hoopes in its reply brief despite its applicability to this case.
However, defendant is clearly familiar with that case given that several paragraphs of its reply brief
bear an uncanny resemblance to the language in Hoopes. (Dkt. # 27, at 5-6.) To avoid sanctions,
the court strongly recommends that when defendant’s counsel borrows several sentences verbatim
from another opinion, counsel quote and cite that opinion.
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score purchase site’s terms and conditions when the consumer clicked a button on the
website to use the online service. 817 F.3d at 1036. Crucial to the Seventh Circuit’s
analysis was the fact that the user was never warned that by merely using the site, he was
bound by any terms and conditions. Id.
Here, however, plaintiffs explicitly signed a form acknowledging that they read the
warranty and desired to register the warranty for their RV. In fact, the presence of the
signed acknowledgment was key to the analysis in Kraft, as well as in Mengers v. Gulf Stream
Coach, Inc., 136 F.Supp. 3d 1006, 1008 (N.D., Ind. 2015). In Mengers, the plaintiff sought
to sue an RV company under the terms of its “Coverage Booklet.” Id. at 1006. Ms.
Mengers sought to void an arbitration clause contained within the coverage booklet on the
grounds that she was never actually given the text of the coverage booklet upon the sale of
the RV, but was merely provided with a “Service Agreement Declaration Page.” Id. at 1008.
In upholding the arbitration clause, the court focused on two key points: (1) Ms. Mengers
had signed an agreement affirming that she had read the service agreement and agreed to
be bound by its terms, and (2) Ms. Mengers was suing under the very service agreement
that contained the arbitration clause she sought to invalidate. Id. at 10; see also Hilman v.
Thor Industries, Inc., No. 21-cv-239, 2022 WL 683650, at *8 (N.D. Ind. Mar. 8, 2022)
(distinguishing the plaintiff in that case from the plaintiff in Mengers, as Ms. Mengers could
not take advantage of the good parts of a contract she made while distancing herself from
the bad). Like Ms. Mengers, plaintiffs have also signed an agreement affirming that they
read the warranty and are seeking recovery under the very warranty whose venue terms
they now wish to invalidate.
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Plaintiffs argue that use and reliance on the warranty does not constitute assent to
unknown terms. However, it is not only use of and reliance on the warranty by itself that
creates assent to the warranty’s terms, but also plaintiffs’ outward manifestation of that
assent through their signatures on the Form. Domer v. Menard, 684 F.Supp. 3d 871, 878
(W.D. Wis. 2023) (finding that when a consumer has reasonable notice that additional
terms exist and follows through with a purchase, that consumer manifests their assent to
the additional terms).
Defendant is also correct that there is no evidence of its failure to satisfy any
obligations as a warrantor under the MMWA. However, this does not end the analysis, as
plaintiffs still cannot consent to undisclosed warranty terms. To that end, Mengers is
persuasive. Like Ms. Mengers, plaintiffs affirmatively acknowledged that they read the
text of the warranty. Even if this was untrue, plaintiffs were on notice that additional
contractual terms existed, and they should have asked to review them before affirming that
they did so. Moreover, plaintiffs cannot now disavow a conspicuous term of the warranty,
while seeking to recover under other provisions of the very same warranty. As the court in
Mengers explained, a party who has accepted a benefit under a contract cannot have it both
ways by attempting to avoid its burdens. Mengers, 136 F.Supp.3d at 1010; Hughes Masonry
Co. v. Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 839 (7th Cir. 1981). Here,
plaintiffs are attempting to do just that.
Finally, plaintiffs attempt to distinguish their case from cases like Mengers by arguing
the Form affirms only that plaintiffs have read the warranty, not necessarily any of the
warranty’s terms. This is a distinction without a difference. First, the affirmation that
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plaintiffs signed adequately encompasses the warranty in its entirety. Second, plaintiffs were
at minimum on notice that they were signing an additional warranty contract, yet chose
not to read it. Just as they now nevertheless seek to enforce the warranty in their MMWA
claim, they must abide by all of its terms, including the forum selection clause.
C. The forum selection clause is not unconscionable under Wisconsin law.
Of course, even if they did consent to the warranty’s terms, plaintiffs also argue the
Warranty Form constitutes an unconscionable adhesion agreement that the court should
strike down as unenforceable. First, plaintiffs offer no support for their claim that the
Form is an adhesion agreement. All plaintiffs contend is that a salesperson provided them
with the Form after they signed the purchase contract for the RV, and that they signed the
Form, indicating that they had the opportunity to review the limited warranty to be
registered by the Form. While there is no dispute that plaintiffs knew that they had not
read the warranty, yet signed the Form anyway, there is also no evidence that plaintiffs
would have been unable to negotiate any of the terms of the Form or the warranty’s terms
if they had asked to review them.
Nevertheless, plaintiff argues that the Form is somehow unconscionable, which
requires their showing of a “certain quantum” of both substantive and procedural
unconscionability. Leasefirst v. Hartford Rexall Drugs, Inc. 168 Wis. 83, 89, 483 N.W.2d
585. (Ct. App. 1992). Substantive unconscionability refers to the terms of the contract
itself and whether they are commercially reasonable, while procedural unconscionability
refers to the factors bearing on the meeting of the minds of the contracting parties. Id. at
90.
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Regarding substantive unconscionability, plaintiffs argue that the Form and
incorporated forum selection clause in the warranty are not commercially reasonable
because Wisconsin courts have struck down forum selection clauses that confer venue in
other states where there is no basis for jurisdiction other than the clause itself. First Fed.
Fin. Serv. v. Derrington’s Chevron, Inc., 230 Wis. 2d 553, 562, 602 N.W.2d 144 (Ct. App.
1999). However, plaintiffs conveniently ignore that there is a clear basis for jurisdiction
here: defendant is headquartered and maintains its principal place of business in Indiana
and it is commercially reasonable for a company to select its headquarters’ state as the
forum of choice. Pietroske, Inc. v. Globalcom, Inc., 2004 WI App 142, ¶ 7, 275 Wis. 2d 444,
685 N.W.2d 884. Moreover, the RV was manufactured and assembled in Indiana and
manufactured its RVs there, providing a further basis for jurisdiction in Indiana. Therefore,
the forum selection clause is commercially reasonable.
Plaintiff also cites Leasefirst and First Federal to argue that litigating in Indiana is
substantively unconscionable. However, the clause in Leasefirst would have allowed the
drafting party to choose to litigate in any forum where they had ever done business, 168
Wis. 2d at 90, and the clause in First Federal compelled litigation in Wisconsin while the
buyer and seller were both located in California, 230 Wis. 2d at 562. Thus, this case is
again easily distinguishable from those cases, where defendant is headquartered in Indiana,
while plaintiffs reside in Minnesota. In short, requiring litigation in Indiana is not
commercially unreasonable, nor is the difference in convenience to plaintiffs so grave as to
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render it commercially unreasonable.2 Therefore, the clause is not substantively
unconscionable.
Admittedly, the question of procedural unconscionability is a closer call. Factors
the court must weigh to determine procedural unconscionability include the contracting
parties’ age, intelligence, business acumen and experience, relative bargaining power, who
drafted the contract, whether the terms were explained to the weaker party, and whether
alterations in the printed terms were possible. Disc. Fabric House v. Wis. Tel. Co., 117 Wis.
2d 587, 602, 345 N.W.2d 417 (1984). Here, defendant is a corporation, while plaintiffs
are individual consumers. Defendant also drafted the contract unilaterally and never
explained the forum selection clause to plaintiffs. Against these facts, however, is plaintiffs’
acknowledgement that they read the warranty. If they had, they would have reviewed a
five-page document describing the warranty’s terms conspicuously and in plain language.
(Dkt. # 18-1, at 1-5.) In particular, the forum selection clause itself is located under a
heading that reads “Legal Remedies” and is in the same font size as the rest of the
warranty’s text, stating plainly and unambiguously that exclusive jurisdiction for warranty
claims lies with the courts within the state of Indiana. Id. at 5. Thus, plaintiffs were given
sufficient notice, whether they chose to read it or not, of the contractual terms comprising
2 Plaintiffs would travel approximately 200 miles from their home in Rochester, Minnesota to
litigate in the Western District of Wisconsin. The court acknowledges that nearly doubling
plaintiffs’ commute for litigation to proceed in defendant’s proposed venue may be burdensome.
However, Wisconsin courts have upheld as commercially reasonable forum selection clauses
resulting in similar increases to a plaintiff’s commute to the courthouse when the proposed,
alternate venue is the defendant’s headquarters. E.g., Pietroske, 2004 WI App 142, ¶ 7 (upholding
a forum selection clause transferring venue from Manitowoc County, WI to Cook County, IL as
commercially reasonable when defendant was headquartered there).
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the warranty. Again, in seeking to enforce those terms, there is nothing procedurally
unconscionable about requiring plaintiffs to take the good with the bad.
D. Transfer is appropriate under § 1404(a).
Because defendant moves to transfer this case under a valid forum selection clause,
only extraordinary circumstances unrelated to the convenience of the parties would justify
denial of defendant’s § 1404(a) motion to transfer, Atl. Marine Constr. Co., Inc., 571 U.S.
at 62, and plaintiffs have offered no evidence regarding this transfer offending the public
interest. Plaintiffs having failed to meet their burden of showing why the court should not
transfer this case to the Northern District of Indiana under the applicable forum selection
clause, defendant’s motion under § 1404(a) will be granted.
ORDER
IT IS ORDERED that:
1) Defendant’s motion to transfer (Dkt. #16) is GRANTED.
2) The clerk of court shall transfer this case to the Northern District of Indiana.
Entered this 12th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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