The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 28, 30, 31, 32, 33, 34, 35, 36, 42, 43, 44 were read on this motion to DISMISS. DECISION ORDER ON MOTION In this action, plaintiff Serface Care, Inc. d/b/a Myro (Myro) alleges that defendant Berry Good Labs, LLC d/b/a Texas Beauty Labs a/k/a The Goodkind Co. (TBL), failed to make conforming, usable deodorant product for Myro under a manufacturing agreement between the parties (the Manufacturing Agreement), was unable to provide sufficient manufacturing capacity in breach of the Manufacturing Agreement, anticipatorily repudiated the Manufacturing Agreement, and failed to give Myro the benefit of a credit agreed to in Amendment No. 1 to the Manufacturing Agreement (the Amendment) and a settlement agreement attached to the Amendment (the Settlement Agreement). TBL now moves for an order dismissing the complaint: (1) pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction; (2) pursuant to CPLR 3211 (a) (7) and/or CPLR 327 in light of the forum selection clauses in the parties’ contracts; (3) pursuant to CPLR 327 on the ground of forum non conveniens; and (4) in the alternative only, pursuant to CPLR 3211 (a) (1) and/or (a) (7) on the merits. For the reasons set forth below, TBL’s motion to is granted on the grounds of lack of personal jurisdiction. FACTUAL BACKGROUND The Manufacturing Agreement TBL is a Texas limited liability company, with its principal place of business in Round Rock, Texas (complaint, 4 [NYSCEF Doc No. 2]). TBL is a specialty manufacturer of beauty products, including deodorant (id., 11). TBL’s sole member is Phlur, Inc., a Delaware corporation, with its principal place of business in Texas (id., 5). Myro is a Delaware corporation, with its principal place of business in Connecticut (id., 3). Myro is a vendor and retailer of deodorant (id., 10). On May 3, 2019, Myro and TBL entered into the Manufacturing Agreement (NYSCEF Doc No. 3), pursuant to which TBL would manufacture deodorant for Myro in Texas, under Texas law, with disputes to be resolved in Texas Federal court. The Manufacturing Agreement provided as follows: TBL is defined as “BERRY GOOD LABS LLC (d/b/a Texas Beauty Labs), a Texas limited liability company with a manufacturing facility located at 100 Michael Angelo Way, Suite 900, Austin, TX 78728-1257″; “Manufacturer shall manufacture the Products solely at Manufacturer’s plant, currently located at 100 Michael Angelo Way, Suite 900, Austin, TX 78728-1257 (the ‘Plant’)”; “All shipments will be Ex Works the Plant”; The Agreement “shall be governed and construed in accordance with the internal laws (expressly excluding conflicts of law provisions) of the State of Texas”; “Any conflict or controversy arising out of or in connection with [the Manufacturing] Agreement or any breach thereof shall be adjudicated in the Federal courts of the United States of America located in Austin, Texas, and competent courts of appeals therefrom”; and “[i]f any part of this Agreement shall be found to be illegal, invalid or unenforceable, Agreement shall be given such meaning as would make this Agreement legal, valid and enforceable in order to give effect to the intent of the parties” (see Agreement, Preamble, §§2.5, 5.5, 18, 19). The Dispute In a nutshell, Myro alleges that TBL failed to perform its obligations under the Manufacturing Agreement, the Amendment, and the Settlement Agreement (id., 29). According to Myro, TBL breached its obligations by supplying unstable, unmerchantable and unusable deodorant that was not fit for its intended purpose (id., 30). Myro alleges that the deodorant manufactured by TBL became unacceptably soft and unusable over a relatively short period of time, often leaking out of its container, and did not meet required shelf-life minimum standards (id.). Myro alleges that it had to recall the product manufactured by TBL, leading to direct and indirect damages, reputational harm, and lost profits (id., 33). TBL denies Myro’s assertions. 1. The Disputed Order In August 2019, Myro ordered 500,000 units of deodorant to be manufactured by TBL in Texas pursuant to Purchase Order #3191 (the Disputed Order) (see Confidential Settlement Agreement and Release (the Settlement Agreement), 2d “Whereas” clause) (NYSCEF Doc No. 9). Following manufacture and delivery in Texas of the products under the Disputed Order, Myro “asserted that the Products subject to the Disputed Order were defective, and alleged certain claims against [TBL] arising out of the manufacture of such Products (including without limitation, claims that such Product formula was unstable and/or that such Products did not meet required shelf life minimum standards (collectively, such claims relating to Products manufactured with this formula only, the ‘Claims’)” (see id., 3d “Whereas” clause). 2. The Settlement Agreement On August 8, 2019, TBL and Myro entered into the Settlement Agreement to settle and resolve all claims between them with respect to the Disputed Order. In that agreement, each party expressly agreed to release “forever any right to seek further monetary or other relief” from the other party (Settlement Agreement, §3). TBL also agreed to extend a credit of $1,028,577.13 to be applied against future orders (id., §1), The Settlement Agreement and the concurrent Amendment (NYSCEF Doc No. 4) also provided that Myro assumed all risk relating to newly manufactured product to avoid further disputes (see Amendment, §2 [a]). Pursuant to the Amendment, Myro would place certain “Committed Special Orders” with TBL, which Myro acknowledged shall be delivered on an “‘as-is, where-is’ and ‘with all faults’ basis, all warranties…expressly disclaimed” (id.). The Amendment further provided that, if a “Passing Third Party Stability Test” was not received by December 31, 2019, Section 2 of the Amendment “shall automatically be void and of no further effect” (see id., §2 [c]). The parties did not receive a Passing Third Party Stability Test by December 31, 2019 (see complaint, 27, fn. 1). 3. Post-Settlement Dispute Myro alleges that TBL continued to manufacture unusable deodorant after the parties entered into the Settlement Agreement and had to again recall the defective deodorant (complaint,
30, 33). Myro contends that this was a breach of the Settlement Agreement because “TBL is unable to provide the benefit of the $1,028,577.13 credit for which Myro bargained” (id., 44). The Texas Federal and State Lawsuits On September 15, 2020, Myro filed suit against TBL in the United States District Court for the Western District of Texas (the Federal action) (see Federal complaint [NYSCEF Doc No. 10]). In the Federal complaint, Myro alleged that “a substantial part of the events or omissions giving rise to the claims occurred in this District [i.e., Texas]. Specifically, TBL sold and manufactured and contracted to sell and manufacture the deodorant at issue in this lawsuit in this District [i.e., Texas]” (id., 6). Myro asserted various claims-all pursuant to Texas law. Other than alleging its former principal place of business being in New York (which is now in Connecticut), Myro makes no mention of New York in the Federal action (see id., 1) On November 20, 2020, TBL answered the Federal action. However, given that there was not complete diversity of citizenship among the parties and no federal question was alleged, on January 4, 2021, the parties stipulated to dismiss the Federal action without prejudice (see Federal stipulation [NYSCEF Doc No. 11]; Federal order [NYSCEF Doc No. 12]). On December 14, 2020, TBL filed an Original Petition in the District Court for Travis County, Texas (the Texas action), seeking declaratory relief against Myro (see Texas complaint [NYSCEF Doc No. 13]). In the Texas action, TBL seeks a declaration, among other things, that the parties’ Amendment and Settlement Agreement bar any claims by Myro (see id.). Myro was served with the Texas Original Petition on December 18, 2020 (see NYSCEF Doc No. 13). This Litigation On December 10, 2020, prior to the filing of the Texas action, Myro initiated this suit. Myro asserts causes of action for breach of contract for breach of the Manufacturing Agreement, Amendment and Settlement Agreement (first cause of action); breach of express warranties (second cause of action); breach of implied warranties of merchantability (third cause of action); breach of implied warranties of fitness for a particular purpose (fourth cause of action); breach of the implied duty of good faith and fair dealing (fifth cause of action); negligence (sixth cause of action; unjust enrichment (seventh cause of action); promissory estoppel (eighth cause of action); and attorney’s fees under section 38.001 of the Texas Civil Practices and Remedies Code (ninth cause of action). DISCUSSION TBL seeks to dismiss this case on numerous grounds, principally that the parties’ agreements require that this case be litigated in Texas and that, in any event, TBL is not subject to personal jurisdiction in this case. The Court will address those arguments in turn. A. The Forum Selection Clause The forum selection clauses contained in both the Manufacturing Agreement and the Settlement Agreement state that: “Any conflict or controversy arising out of or in connection with this Agreement or any breach thereof shall be adjudicated in the Federal courts of the United States of America located in Austin Texas, and competent courts of appeals therefrom.” (Manufacturing Agreement, §19; Settlement Agreement, §10) [emphasis added]. New York courts routinely enforce such provisions (e.g., Boss v. Am. Express Fin. Advisors, Inc., 6 NY3d 242, 247 [2006], which “are not to be set aside unless a party demonstrates that the enforcement of such ‘would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court’” (Sterling Nat. Bank as Assignee of NorVergence, Inc. v. E. Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006] [citation omitted]). As noted above, Plaintiff initially sought to litigate this dispute in Texas federal court consistent with the terms of the forum selection provisions. However, the case was dismissed by stipulation, without prejudice, because the federal court did not have subject matter jurisdiction. As this Court noted in a similar case in which the parties could not litigate a contract dispute in their chosen forum (federal court) due to lack of subject matter jurisdiction, “[t]he forum selection clause, as drafted, simply cannot be applied under these circumstances. And because it cannot be applied, ‘the forum selection clause is properly viewed as non-mandatory and alternative fora can be considered’” (PBF I Holdings Ltd. v. Valero (Peru) Holdings Ltd., 2021 N.Y. Slip Op. 30289[U], 6 [N.Y. Sup Ct, New York County 2021] [quoting Hovensa, L.L.C. v. Technip Italy S.P.A., 08CIV.1221(NRB), 2009 WL 690993, at *5 [SD NY Mar. 16, 2009]). TBL’s reliance on Matter of Rosewood Private Investments, Inc. (2018 WL 4403749 [Tex App 2018]) for the proposition that the forum selection provision in this case should be deemed — really, re-written — to mandate that disputes be resolved in Texas state court is misplaced. First, the enforcement of the forum selection clause in this case is governed by New York law, not Texas law (Amazing Home Care Services, LLC v. Applied Underwriters Captive Risk Assur. Co. Inc., 191 AD3d 516 [1st Dept 2021] ["[w]e apply New York law in determining whether to enforce a forum selection clause”]). Second, the facts in Rosewood are distinguishable. In that case, it was unclear whether the federal court — to which the forum selection provision pointed — had jurisdiction over the dispute, and thus the parties were required to comply with the provision by permitting the federal court to make that determination. Here, by contrast, the lack of federal jurisdiction is undisputed, and thus referring the parties to federal court is not an option (PBF I Holdings, 2021 WL 291201 at *3). The Rosewood court’s alternative suggestion that “even if’ the federal court determined it did not have jurisdiction the “severability” provision in the contract could be employed to “strike the word ‘federal’” from the forum selection clause (2018 WL 4403749 at *5) is dicta, and the Court chooses not to follow it here. Myro and TBL limited the forum selection provision to the federal courts of Texas, and the Court sees no reason to override that choice. In sum, the forum selection provisions in the parties’ agreements do not preclude litigating this action in this Court, though they do reflect the fact that the locus of the parties’ commercial arrangement was in Texas. As discussed below, the complaint must be dismissed on the independent ground that the Court lacks personal jurisdiction over the Defendant. B. Personal Jurisdiction Upon a defendant’s motion to dismiss for lack of personal jurisdiction, “the plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction” (Coast to Coast Energy, Inc. v. Gasarch, 149 AD3d 485, 486 [1st Dept 2017]). To sustain that burden, the plaintiff must show not only that the defendant is within the reach of New York’s long-arm statute, but also that exercising jurisdiction “comport[s] with federal constitutional due process requirements” (Rushaid v. Pictet & Cie, 28 NY3d 316, 330 [2016]). Where a plaintiff cannot make a prima facie showing that a defendant is subject to personal jurisdiction, a motion to dismiss for lack of personal jurisdiction should be granted (see Iavarone v. Northpark Partners, LP, 89 AD3d 902, 903 [2d Dept 2011]). Here, Myro is unable to make such a showing, and thus the complaint must be dismissed. The parties agree that the relevant long-arm provision is CPLR 302 (a) (1). Pursuant to that provision, “a court may exercise personal jurisdiction over any non-domiciliary…who in person or through an agent: transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302 [a] [1]). CPLR 302 (a) (1) is a “single act statute,” which means that “‘proof of one transaction in New York is sufficient to invoke jurisdiction’” (Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 NY3d 65, 71 [2006] [citation omitted], cert denied 549 US 1095 [2006]). But “our precedents establish that it is the quality of the defendants’ New York contacts that is the primary consideration” (Fischbarg v. Doucet, 9 NY3d 375, 380 [2007] [emphasis added]). Accordingly, CPLR 302 (a) (1) supports exercising personal jurisdiction over a nondomiciliary “if the nondomiciliary conducts ‘purposeful activities’ within the state and the claim against the nondomiciliary involves a transaction bearing a ‘substantial relationship’ to those activities” (Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 21 AD3d 90, 93 [1st Dept 2005], affd 7 NY3d 65 [2006], cert denied 549 US 1095 [2006]; accord SPCA of Upstate N.Y., Inc. v. American Working Collie Assn., 18 NY3d 400, 404 [2012] ["Transact(ing) business within the meaning of CPLR 301 (a) (1)" must consist of "purposeful activities within the state that would justify bringing the nondomiciliary defendant before the New York Courts"] [citation and internal quotation marks omitted]). Insignificant or unrelated contacts with the forum state are not enough to confer specific jurisdiction under CPLR 302 (a) (1), unless the defendant purposely “avails itself of the privilege of conducting activities within the forum State” (see e.g. Paterno v. Laser Spine Inst., 24 NY3d 370, 376 [2014] [citation and internal quotation marks omitted]). Due process considerations also hold that “[t]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for jurisdiction over him” (Walden v. Fiore, 571 US 277, 285 [2014]). Accordingly, “[i]n order for a state court to exercise specific jurisdiction, “the suit must arise out of or relate to defendant’s contacts with the forum” (Bristol-Meyers Squibb Co. v. Superior Court of California, San Francisco County, 137 S Ct 1773, 1780 [2017] [emphasis added] [citation and internal quotation marks omitted]). Myro makes the following jurisdictional allegations in the complaint: “This Court has personal jurisdiction over TBL because it does business in New York. Due to TBL’s extensive business activities in New York, the Court’s exercise of personal jurisdiction over TBL does not offend traditional notions of fair play and substantial justice.” “Venue is properly based in this Court under N.Y. C.P.L.R. §503 (a) because a substantial part of the events or omissions giving rise to Myro’s claims occurred in New York County. Specifically, Myro negotiated the contracts described herein with TBL from its office at the time in New York County at 132 Mulberry St., Ste. 503, New York, NY 10013; Myro executed the contracts in New York County; Myro performed its obligations under the contracts by making payments to TBL from its bank-Chase Bank-located in New York County; TBL accepted performance of its obligations under the contracts by delivering defective deodorant in New York County; and TBL breached the contracts by failing to deliver conforming deodorant to Myro in New York County” (complaint,
