Barannikov v. ITG Communications, LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DANIL BARANNIKOV,
Plaintiff,
- against -
ITG COMMUNICATIONS, LLC,
Defendant.
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MEMORANDUM DECISION
AND ORDER
25-cv-6707 (BMC)
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COGAN, District Judge.
Plaintiff Danil Barannikov, as assignee of Domestic Supply, Inc., brings the instant action
against defendant ITG Communications, LLC to recover for breach of contract and other claims
arising out of Domestic Supply’s subcontractor agreement with defendant. ITG moves to
dismiss plaintiff’s complaint and to stay discovery based on a forum-selection clause in its
subcontractor agreement with Domestic Supply, which states:
Venue and Jurisdiction. In the event any dispute arises out of the terms of this
Agreement…or any dispute arises out of or relates to the relationship between
Company and Contractor…Jurisdiction for resolution of any said disputes shall be
solely in the Courts of Tennessee having competent jurisdiction, with venue
located in the Court of Common Pleas for Sumner County.
The problem is that although there are, unsurprisingly, state courts in Sumner County, there is no
“Court of Common Pleas,” neither at the time the parties entered into the subcontract nor now.1
The court within Sumner County to resolve monetary disputes like this one appears to be the
Circuit Court for Sumner County. See Tenn. Code Ann. § 16-10-01. In other words, the clause
1 There apparently was a “Court of Commons Please & Quarter Sessions” in Tennessee prior to 1808 that heard
“minor” matters. See “Courts Where Tennessee Cases Were Tried,” Tennessee Secretary Of State,
https://sos.tn.gov/tsla/guides/courts-where-tennessee-court-cases-were-tried (last visited 2/2/26). Who knows what
defendant’s lawyer was thinking when this clause was included in the contract.
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should have said “Circuit Court for Sumner County” instead “Court of Common Pleas for
Sumner County.”
Defendant points to the framework to determine the enforceability for a forum-selection
clause in Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007), and its progeny. First, a
court is to consider whether (1) the clause was reasonably communicated to the resisting party;
(2) the clause is mandatory or permissive; and (3) the claims and parties fall within the scope of
the clause. Id. at 383. If so, the clause is presumptively enforceable, and the burden shifts to the
party opposing dismissal to show that enforcement would be unreasonable or unjust. Id. at 383-
84. Plaintiff acknowledges this framework as a general matter, and does not assert
unreasonableness or injustice, but asserts that the Phillips framework does not apply when the
forum-selection clause specifies a non-existent court.2
Defendant urges the Court to construe the clause consistent with the parties’ intent. It
characterizes the reference to “the Court of Common Pleas for Sumner County” as mere
“drafting imprecision,” maintaining that the forum-selection clause “plainly reflects the parties’
intent to litigate any dispute in Sumner County, Tennessee,” where state courts do exist. In
defendant’s view, “[t]he fact that the clause references a ‘Court of Common Pleas’ does not
introduce ambiguity where the parties’ geographic and jurisdictional intent is otherwise
unmistakable.” Plaintiff, in opposition, argues that it would be improper for the Court to enforce
the clause “based on a generalized assertion of ‘intent’ to litigate in Sumner County.” In
plaintiff’s view, enforcing the forum-selection clause “would require adoption of an imaginary
forum or judicial substitution of terms.”
2 Plaintiff asserted that enforcement of the clause would be unreasonable and unjust in its complaint but has
abandoned that argument in opposing defendant’s motion.
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Both parties miss the issue. This clause serves two clearly delineated purposes. First and
foremost, it provides that plaintiff, regardless of whether Domestic Supply has contact with
Tennessee outside its contractual relationship with defendant, has consented to exclusive,
mandatory jurisdiction in the state courts of Tennessee. That is, no court, wherever located and
whether federal or state, can hear this case except for a state court in Tennessee. There is
nothing ambiguous about that provision. If that was all the clause said – i.e., jurisdiction “shall
be solely in the Courts of Tennessee having competent jurisdiction” – there could be no issue:
the Phillips framework would apply, and plaintiff would have to sue in Tennessee.
That does not change simply because the clause also addresses the separate issue of
venue. On that non-jurisdictional issue, there is an ambiguity because of the misnaming of the
court. But the venue within Tennessee is not an issue that this Court has to decide. Should
plaintiff recommence this action in Tennessee, the Tennessee court, applying Tennessee law,
will determine whether the venue-selection clause is adequate to vest jurisdiction in the
appropriate court within Sumner County, or whether the action should be venued pursuant to the
general venue provisions of the Tennessee Civil Code. See Tenn. Code § 20-4-101.3
3 The Second Circuit apparently has not considered a “divisible” forum-selection clause like the one presented – that
is, one which provides separately for jurisdiction and venue. However, Yakin v. Tyler Hill Corp., 566 F.3d 72 (2d
Cir. 2009), provides some implicit support for this Court’s approach. In Yakin, the Second Circuit considered a
forum-selection clause which provided for venue in Nassau County, New York but did not provide for jurisdiction
(i.e., federal or state). The Second Circuit recognized that a forum-selection clause “may bind parties to either a
specific jurisdiction or, as here, a specific venue,” and found that the clause at issue which “merely contain[ed]
obligatory venue language ... convey[ed] nothing about the parties’ intent as to jurisdiction.” Id. at 76. The Second
Circuit thus affirmed remand of the action to the Nassau County State Supreme Court since there was no federal
court in Nassau County. Id. at 76-77. In so doing, the Second Circuit effectively enforced the part of the forum-
selection clause which was textually clear while refusing to extend or infer the rest.
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Defendant’s motion to dismiss is therefore granted, and its motion to stay discovery is
denied as moot.
SO ORDERED.
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U.S.D.J.
Dated: Brooklyn, New York
February 2, 2026
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