United States District Court, D. Minnesota
A. Dillon, Gray Plant Mooty, counsel for plaintiff MoneyGram
Payment Systems, Inc.
Albright, David E. Albright & Associates, counsel for
defendants Bullfrog Corner Express, LLC, Nayyer Mahmood, and
Katherine Menendez, United States Magistrate Judge
Bullfrog Corner Express, Nayyer Mahmood, and Yasmin Mahmood
(collectively “Bullfrog”) have filed a Motion to
Dismiss for Improper Venue. For the following reasons,
Bullfrog's Motion is DENIED.
MoneyGram Payment Systems, Inc. (“MoneyGram”) and
the individual defendant Bullfrog entered into an agreement
in 2013, in which MoneyGram authorized Bullfrog to sell its
money transfer and money order services. (Compl., ECF No. 1
¶ 6.) Under the agreement, Bullfrog was required to
maintain funds obtained through the sale of MoneyGram's
services in a separate trust fund, and remit the funds to
MoneyGram on a daily basis. (Id. ¶¶ 7, 9.)
Mr. and Mrs. Mahmood each personally guaranteed
Bullfrog's performance under the agreement. (Id.
¶ 12.) MoneyGram now alleges breach of contract and
related claims against all the Bullfrog defendants.
(Id. ¶¶ 22-34.)
filed a substantially similar action against Bullfrog in the
Circuit Court of Tennessee in 2015. (See Complaint,
Moneygram Payment Sys. v. Nayyer Mahmood,
CT-002562-15 (Tenn. Cir. Ct., June 17, 2015) (the
“Tennessee Action”).) In the Tennessee Action,
Bullfrog moved to dismiss the complaint for improper venue
and failure to include an indispensable party. (Aff. of Brian
A. Dillon, ECF No. 21, Ex. A, March 21, 2018.) Bullfrog's
sole legal argument for dismissal was that
Venue is provided for in the contract between MoneyGram and
Bullfrog, and the addendum to the contract whereby Nayyer
Mahmood and Yasmin Mahmood guarantee Bullfrog's action,
all specifically limit all actions by both parties to the
State of Minnesota.
(Ex. B to Dillon Aff. ¶ 2; see also Id. ¶
10 (“In light of the above no action can be taken
against Bullfrog save in the jurisdiction and courts of the
state of Minnesota as stated above.”).) While
Bullfrog's Motion was pending, MoneyGram served initial
discovery requests, and when Bullfrog did not respond, a
Motion to Compel, followed by a Motion for Default Judgment.
(Tennessee Action, Dkt. No. 17, Dec. 7, 2015; id.,
Dkt. No. 19, Dec. 31, 2015.) Before the pending cross-motions
to dismiss and for default were decided, however, MoneyGram
voluntarily dismissed the Tennessee action. (Id.,
Dkt. No. 35, Jan. 28, 2016.)
filed the current action in December, 2017. (Compl., ECF No.
1.) Bullfrog has filed a Motion to Dismiss for Improper
Venue, arguing that because MoneyGram originally filed in
Tennessee, it has waived its right to invoke the forum
selection clause in order to bring the action in Minnesota.
Bullfrog now argues that Tennessee, where Mr. and Mrs.
Mahmood reside, or Mississippi, where the individual
defendant Bullfrog did business, would be the appropriate
forum for the current action. However, Bullfrog does not
request transfer of the action back to Tennessee or to
Mississippi. Instead, they maintain that dismissal is
appropriate under 28 U.S.C. § 1406(a).
reasons, Bullfrog's motion must be denied. First,
Bullfrog is estopped from now opposing venue in Minnesota,
since that was precisely the forum they demanded of the court
in Tennessee. Second, under the circumstances of this case,
their waiver argument is unavailing.
is a “broad equitable doctrine, the application of
which is subject to the discretion of the court, and which
must turn on the specific facts of each case.” In
re Sunde, 149 B.R. 552, 557 (Bankr. D. Minn. 1992);
see also Scott County v. Advance Rumley Thresher
Co., 288 F. 739, 750 (8th Cir. 1923) (“The
doctrine of estoppel is one of fundamental justice….
[C]ourts have gone a long way in applying it to prevent
manifest injustice and wrong.”) It is “intended
to prevent a party from taking unconscionable advantage of
his own wrong by asserting his strict legal rights.”
Nelson v. Commissioner of Revenue, 822 N.W.2d 654,
660 (Minn. 2012) (quotation omitted). “In its essence,
equitable estoppel prevents a party from ‘having it
both ways.' If a party has knowingly and intentionally