Koresko

MEMORANDUM AND ORDER RE: DEFENDANT’S MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO FED. R. CIV. P. 12(b)(3) AND 28 U.S.C. § 1406 (a)

I. INTRODUCTION

Before the Court is Defendant RealNet-works, Inc.’s (“Defendant” or “RealNet-works”) motion to dismiss for improper venue, based on a forum selection clause contained in its contract with plaintiff, pursuant to Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1406 (a). See Doc. 21, Defendant’s Motion to Dismiss Plaintiffs First Amended Complaint (“Defendant’s Motion to Dismiss”), filed May 30, 2003. Defendant argues that the forum selection clause in the contract controls venue. See Doc. 22, Defendant’s Memorandum of Points and Authorities in Support of Motion to Dismiss (“Defendant’s P & As in Support of Motion to Dismiss”), filed May 30, 2002. Plaintiff John Koresko (“Plaintiff’ or “Ko-resko”) moved to remand the case to Kern County Superior Court for lack of diversity jurisdiction. See Doc. 16, filed May 14, 2003. Plaintiff argues the proper venue is Kern County Superior Court the site of the original suit that was removed pursuant to 28 U.S.C. § 1441 . See id,

II. BACKGROUND

On August 17, 2001, Plaintiff entered into a contract with…