CALLAWAY BLUE BOTTLING LLC v. BUSSE SJI LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CALLAWAY BLUE BOTTLING, LLC,
Plaintiff,
vs.
BUSSE/SJI, LLC,
Defendant.
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CASE NO. 4:25-cv-177 (CDL)
O R D E R
Callaway Blue Bottling, LLC filed this action in state court
asserting 	breach 	of 	contract 	and 	tort 	claims 	against 	Busse/SJI,
LLC. 	Busse 	removed 	the 	action 	to 	this 	Court 	but 	contests 	venue
based upon a forum selection clause to which it claims the parties
agreed. 	It has accordingly filed a motion to dismiss under Federal
Rule 	of 	Civil 	Procedure 	12(b)(3) 	for 	improper 	venue 	or,
alternatively, 	to 	transfer 	venue 	to 	the 	United 	States 	District
Court for the Western District of Wisconsin pursuant to 28 U.S.C.
§ 	1404(a). 	Because 	a 	genuine 	factual 	dispute 	exists 	regarding
whether the parties agreed to the forum selection clause, Busse’s
motion (ECF No. 25) is denied.
FACTUAL BACKGROUND
Callaway 	Blue, 	a 	Georgia 	corporation, 	manufactures 	and
distributes bottled natural spring water at its bottling plant in
Hamilton, Georgia. 	Am. Compl. ¶ 1, ECF No. 15. 	Busse, a Wisconsin
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corporation, manufactures and installs assembly line equipment for
large 	volume 	beverage 	manufacturers. 	Id. 	¶ 	3. 	Callaway 	Blue
contacted 	Busse 	to 	inquire 	about 	purchasing 	assembly 	line
equipment for use in its Hamilton plant. 	Id. ¶ 8.
After several weeks of discussion, Busse produced a document
addressed to Callaway Blue titled “Proposed Solution.” 	Id. ¶ 15;
Am. 	Compl. 	Ex. 	A, 	Proposed 	Solution, 	ECF 	No. 	15-1 	at 	2.1 	The
proposal 	is 	dated 	October 	11, 	2023, 	and 	specifies 	that 	it 	is
“Proposal 	#44888BBS-05.” 	Proposed 	Solution, 	ECF 	No. 	15-1 	at 	2.
The proposal, which states that it “constitute[s] the complete and
entire proposal pertaining to the subject matter hereof,” provides
descriptions of the equipment that Busse proposed to meet Callaway
Blue’s bottling plant needs and represents that the equipment can
move 	bottles 	along 	an 	assembly 	line 	at 	a 	rate 	of 	600 	bottles 	per
minute. 	Id., 	ECF 	No. 	15-1 	at 	5, 	8. 	The 	document 	also 	includes
the 	quantity 	and 	price 	of 	the 	equipment, 	a 	proposed 	payment
schedule, shipping terms, and an equipment warranty. 	Id., ECF No.
15-1 at 4-5, 21, 22.
Regarding 	the 	equipment, 	the 	proposal 	states 	that 	Busse
“reserves 	the 	right 	to 	re-review 	any 	[of 	Buyer’s] 	specifications
upon 	receipt 	of 	order 	commitment 	to 	ensure 	all 	pricing 	and
specifications are followed prior to order entry and acceptance.”
1 “A copy of a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.” Fed. R. Civ. P. 10(c).
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Id., ECF No. 15-1 at 6. 	The proposal also requests that a “customer
. 	. 	. 	present” 	its 	own 	“Terms 	and 	Conditions 	in 	advance 	of 	[its]
Purchase 	Order” 	and 	advises 	that 	Busse’s 	“[a]cceptance 	of 	[an]
order is subject to review based on [Seller]’s ‘Standard Supplier
Terms and Conditions.’” 	Id., ECF No. 15-1 at 4, 22.
The Appendix of Busse’s proposal also provides the following
regarding Busse’s terms and conditions:
THIS 	PROPOSAL 	AND 	ANY 	SALE 	BASED 	ON 	THIS 	QUOTATION 	ARE
SUBJECT EXCLUSIVELY TO BUSSE/SJI LLC’S (SELLER) STANDARD
TERMS 	AND 	CONDITIONS 	OF 	SALE 	AVAILABLE 	ON 	SELLER’S
WEBSITE 	AT 	https://www.automation-solutions.com/terms-
conditions/ 	(THE 	“TERMS 	AND 	CONDITIONS 	OF 	SALE 	WEB
PAGE”). . . . SELLER REJECTS TERMS AND CONDITIONS IN AN
ORDER, 	RELEASE 	UNDER 	AN 	ORDER, 	OR 	OTHER 	FORM 	OR
COMMUNICATION FROM CUSTOMER[] OR CUSTOMER’S CLIENTS THAT
ARE 	ADDITIONAL 	TO 	OR 	DIFFERENT 	FROM 	SELLER’S 	TERMS 	AND
CONDITIONS OF SALE.
Id., ECF No. 15-1 at 22. 	The terms and conditions found on Busse’s
web page included the following provisions:
♦ 	2. 	Acceptance: 	Seller’s 	proposal 	or 	quotation 	(the
“proposal”) 	and 	any 	purchase 	order 	issued 	by 	Buyer 	and
accepted by Seller are limited to these terms and conditions,
which 	are 	incorporated 	into 	the 	proposal, 	and 	excludes 	any
different 	or 	additional 	terms 	and 	conditions 	supplied 	by
Buyer, unless agreed to in writing by Seller. 	If, for Buyer’s
convenience, Buyer’s regular purchase order forms are used in
connection 	with 	the 	proposal 	or 	in 	ordering 	equipment 	or
services 	covered 	by 	the 	proposal, 	Seller’s 	acceptance 	is
expressly conditioned upon Buyer’s assent to these terms and
conditions 	. 	. 	. 	. 	[A]ny 	purchase 	order 	accepted 	by 	Seller
[is] incorporated into the proposal.
♦ 	28. 	Governing 	Law; 	Jurisdiction. 	All 	matters 	arising 	out 	of
or relating to these terms and conditions are governed by and
construed 	in 	accordance 	with 	the 	internal 	laws 	of 	the 	State
of 	Wisconsin 	. 	. 	. 	. 	Any 	legal 	suit, 	action 	or 	proceeding
arising out of or relating to the proposal shall be instituted
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in the state or federal courts located in Wisconsin and each
party irrevocably submits to the jurisdiction of such courts
in any such suit, action or proceeding.
Pearson Decl. Ex. A, Terms and Conditions ¶¶ 2, 28, ECF No. 25-1.2
The proposal contains no signature lines, and Callaway Blue never
signed that document.
Several days after receiving the Proposed Solution, Callaway
Blue 	submitted 	a 	purchase 	order 	to 	Busse 	on 	Callaway 	Blue
letterhead. 	The 	purchase 	order 	lists 	the 	equipment 	that 	Busse
described in its proposal, including a bulk palletizer and infeed
equipment, 	and 	states 	Callaway 	Blue’s 	desire 	to 	purchase 	that
equipment for a price of $1,280,630.00, a total which aligns with
the prices reflected in the proposal. 	Am. Compl. Ex. B., Purchase
Order, ECF No. 15-2 at 2. 	The purchase order also states that it
is 	“[b]ased 	on 	Busse/SJI 	LLC 	. 	. 	. 	Proposal 	#44888BS-05 	Dated
October 	11, 	2023[,]” 	and 	includes 	a 	payment 	schedule 	almost
identical 	to 	that 	in 	the 	proposal. 	Id. 	The 	purchase 	order
contains no other terms.
On 	December 	1, 	2023, 	Busse 	sent 	a 	follow-up 	letter 	which
requested Callaway Blue’s approval of certain items related to the
equipment 	referenced 	in 	the 	purchase 	order. 	Am. 	Compl. 	Ex. 	C,
2 	“[T]he 	Court 	may 	consider 	materials 	outside 	the 	pleadings 	without
converting 	a 	Rule 	12(b)(3) 	motion 	to 	dismiss 	to 	a 	motion 	for 	summary
judgment.” 	Liles v. Ginn-La W. End, Ltd., 631 F.3d 1242, 1244 n.5 (11th
Cir. 2011).
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Customer 	Approval 	Letter 	1, 	ECF 	No. 	15-3. 	That 	letter 	states 	as
follows:
In order for us to proceed with your project, Busse/SJI
requires 	your 	review 	and 	approval 	of 	the 	following
items: layout drawing, product data, and equipment paint
color 	requirements. 	Please 	indicate 	approval 	of 	these
items 	by 	placing 	your 	initials 	in 	the 	blanks 	provided
below 	and 	return 	no 	later 	than 	December 	8, 	2023.
Purchase 	orders 	accepted 	by 	Busse/SJI 	may 	not 	be
cancelled or modified by Buyer without the prior written
consent 	of 	Busse/SJI. 	In 	the 	event 	Busse/SJI 	has
accepted 	Customer’s 	purchase 	order, 	Customer 	may 	not
change 	its 	purchase 	order 	unless 	Busse/SJI 	accepts 	in
writing 	any 	change(s) 	requested 	by 	Customer 	(whereby
Busse/SJI 	reserves 	the 	right 	to 	revise 	the 	price 	and
delivery schedule).
Id. 	The 	letter 	recites 	the 	payment 	schedule 	contained 	in 	the
purchase 	order 	and 	includes 	billing, 	shipping, 	and 	installation
information, equipment specifications, and an equipment warranty.
Id. 	at 	1-7. 	The 	last 	page 	of 	the 	letter 	states 	that 	“BUSSE/SJI
(“SELLER”) 	HEREBY 	ACCEPTS 	BUYER’S[] 	PURCHASE 	ORDER[] 	SUBJECT
EXCLUSIVELY 	TO 	SELLER’S 	TERMS 	AND 	CONDITIONS” 	and 	provides 	a
signature 	line 	for 	a 	Callaway 	Blue 	representative 	to 	affirm 	that
they 	“reviewed 	and 	approve 	the 	Terms 	and 	Conditions.” 	Id. 	at 	8.
Callaway Blue never signed the letter. 	Am. Compl. ¶ 19.
Busse proceeded with the equipment delivery and installation
at the Hamilton plant in late 2024. 	Id. ¶¶ 19-20. 	Once installed,
the 	equipment 	was 	“riddled 	with 	production 	flaws” 	and 	could 	not
move 	Callaway 	Blue’s 	bottles 	along 	the 	assembly 	line 	at 	the
promised rate of 600 bottles per minute. 	Id. ¶ 20. 	Callaway Blue
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eventually removed the equipment from its production line and sent
written notice to Busse of its intention to rescind the equipment
contract. 	Am. Compl. Ex. D, Rescission Letter (May 8, 2025), ECF
No. 15-4 at 2-5.
MOTION TO DISMISS STANDARD
In evaluating a motion to dismiss under Federal Rule of Civil
Procedure 	12(b)(3), 	“[t]he 	facts 	as 	alleged 	in 	the 	complaint 	are
taken 	as 	true, 	to 	the 	extent 	they 	are 	uncontroverted 	by 	[the]
defendant[’s] 	affidavits.” 	Delong 	Equip. 	Co. 	v. 	Wash. 	Mills
Abrasive 	Co., 	840 	F.2d 	843, 	845 	(11th 	Cir. 	1988). 	“[W]hen 	there
is 	a 	battle 	of 	affidavits 	placing 	different 	constructions 	on 	the
facts, the court is inclined to give greater weight, in the context
of 	a 	motion 	to 	dismiss, 	to 	the 	plaintiff’s 	version, 	particularly
when the jurisdictional questions are apparently intertwined with
the merits of the case.” Id.
DISCUSSION
Callaway Blue alleges that Busse knowingly mispresented that
its 	palletizer 	could 	operate 	at 	a 	600 	bottle 	per 	minute 	rate 	and
brings claims against Busse for fraud in the inducement, breach of
contract, 	and 	breach 	of 	state 	law 	warranties.3 	Pointing 	to 	the
forum selection clause incorporated by reference into the Proposed
3 Callaway Blue additionally seeks attorney fees under O.C.G.A. § 13-6-
11 and punitive damages.
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Solution, 	Busse 	argues 	that 	this 	action 	should 	be 	dismissed 	or
transferred to a federal court in Wisconsin.
As an initial matter, the Court cannot dismiss this action as
Busse 	requests 	in 	its 	Rule 	12(b)(3) 	motion, 	because 	that 	Rule
allows dismissal “only when venue is ‘wrong’ or ‘improper’” under
the federal venue laws. 	Atl. Marine Const. Co. v. U.S. Dist. Ct.
for 	W. 	Dist. 	of 	Tex., 	571 	U.S. 	49, 	55 	(2013). 	Venue 	is 	proper
here because “a substantial part of the events or omissions giving
rise 	to” 	Callaway 	Blue’s 	claims 	occurred 	in 	Harris 	County, 	which
is 	in 	the 	Middle 	District 	of 	Georgia. 	28 	U.S.C. 	§ 	1391(b); 	Atl.
Marine, 	571 	U.S. 	at 	56 	(“Whether 	the 	parties 	entered 	into 	a
contract 	containing 	a 	forum-selection 	clause 	has 	no 	bearing 	on
whether a case falls into one of the categories of cases listed in
[28 U.S.C.] § 1391(b).”). 	Accordingly, Busse’s motion to dismiss
is denied.
The 	fact 	that 	venue 	is 	proper 	under 	the 	venue 	statute,
however, does not prohibit the parties from contractually agreeing
to 	another 	venue. 	The 	proper 	mechanism 	for 	effectuating 	the
parties contractual intent is to transfer the action to the agreed
upon 	venue. 	Specifically, 	a 	forum 	selection 	clause 	“may 	be
enforced through a motion to transfer under [28 U.S.C.] § 1404(a).”
Atl. 	Marine, 	571 	U.S. 	at 	59. 	That 	provision 	authorizes 	district
courts 	to 	“transfer 	any 	civil 	action 	to 	any 	other 	district 	or
division 	where 	it 	might 	have 	been 	brought 	or 	to 	any 	district 	or
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division 	to 	which 	all 	parties 	have 	consented.” 	28 	U.S.C. 	§
1404(a). 	“When the parties have agreed to a valid forum-selection
clause, 	a 	district 	court 	should 	ordinarily 	transfer 	the 	case 	to
the 	forum 	specified 	in 	that 	clause” 	except 	under 	“extraordinary
circumstances unrelated to the convenience of the parties.” 	Atl.
Marine, 571 U.S. at 62.
It 	is 	undisputed 	that 	Callaway 	Blue 	never 	signed 	a 	written
contract 	that 	included 	a 	forum 	selection 	clause. 	Busse 	argues
that by incorporating by reference the forum selection clause from
its website into its Proposed Solution, the forum selection clause
became part of its “offer” which Callaway Blue “accepted” when it
placed 	its 	purchase 	order 	for 	the 	equipment. 	Callaway 	Blue
disputes 	that 	Busse’s 	Proposed 	Solution 	plus 	Callaway 	Blue’s
purchase 	order 	constitutes 	the 	parties’ 	contract. 	It 	maintains
that 	its 	purchase 	order, 	which 	makes 	no 	mention 	of 	the 	forum
selection 	clause, 	was 	not 	acceptance 	of 	Busse’s 	offer, 	but 	was
actually the offer and that Busse’s delivery of the equipment was
the acceptance. 	Thus, a dispute exists as to the issue of contract
formation.
Contract 	formation 	should 	not 	be 	confused 	with 	contract
interpretation, which is typically done by the Court by looking at
the 	plain 	meaning 	of 	the 	contractual 	language 	and, 	when 	that
language 	is 	ambiguous, 	relying 	upon 	accepted 	canons 	of 	contract
construction 	to 	ascertain 	the 	meaning 	of 	particular 	words 	or
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phrases. 	Contract 	formation 	involves 	a 	more 	foundational 	issue:
what 	documents 	and 	actions 	constitute 	the 	actual 	contract, 	i.e.,
what is the offer and the acceptance? 	For the parties to be bound,
there 	must 	be 	mutual 	assent, 	which 	can 	only 	occur 	when 	one 	party
accepts another party’s offer. 	“In determining whether there was
a 	mutual 	assent,” 	Georgia 	law 	instructs 	courts 	to 	“apply 	an
objective theory of intent whereby one party’s intention is deemed
to 	be 	that 	meaning 	a 	reasonable 	man 	in 	the 	position 	of 	the 	other
contracting 	party 	would 	ascribe 	to 	the 	first 	party's
manifestations 	of 	assent, 	or 	that 	meaning 	which 	the 	other
contracting 	party 	knew 	the 	first 	party 	ascribed 	to 	his
manifestations 	of 	assent.” 	Thornton 	v. 	Uber 	Techs., 	Inc., 	858
S.E.2d 255, 258 (Ga. Ct. App. 2021).4 	Sometimes this determination
requires 	an 	examination 	of 	extrinsic 	evidence. 	“Where 	such
extrinsic evidence exists and is disputed, the question of whether
a party has assented to the contract is generally a matter for the
jury.” 	Id.
Busse’s argument that its proposal constitutes the offer has
some 	support 	in 	the 	record. 	First, 	the 	proposal 	was 	addressed
only 	to 	Callaway 	Blue. 	See 	Sterling 	BV, 	Inc. 	v. 	Cadillac 	Prods.
4 Callaway Blue alleges that the acts giving rise to the contract occurred
in Georgia. 	That state applies the rule of “lex loci contractus,” under
which “the validity . . . of a contract [is] governed by the substantive
law of the state where the contract was made.” 	Fed. Ins. Co. v. Nat’l
Distrib. Co., Inc., 417 S.E.2d 671, 673 (Ga. Ct. App. 1992). 	Therefore,
the Court applies Georgia law to the contract formation issue.
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Packaging 	Co., 	No. 	23-13195, 	2025 	WL 	2206106, 	at 	*3 	(11th 	Cir.
Aug. 	4, 	2025) 	(“[T]he 	fewer 	people 	to 	whom 	a 	price 	quote 	is
addressed, 	the 	more 	likely 	it 	is 	to 	be 	an 	offer.”).5 	Also, 	the
proposal 	came 	in 	response 	to 	Callaway 	Blue’s 	inquiry 	regarding
Busse’s 	equipment. 	And, 	the 	proposal 	contained 	enough 	terms 	to
function 	as 	an 	offer, 	including 	a 	detailed 	description 	of 	the
goods, 	prices, 	a 	payment 	schedule, 	and 	the 	parties’
responsibilities. 	See 	1 	Williston 	on 	Contracts 	§ 	4:10 	(4th 	ed.)
(“[W]here 	a 	price 	quotation 	in 	a 	letter 	contains 	detailed 	terms,
it 	may 	well 	be 	deemed 	an 	offer 	in 	light 	of 	the 	specificity 	and
completeness 	of 	the 	commercial 	terms 	in 	the 	letter.”) 	(footnote
omitted).
Other 	facts 	in 	the 	record, 	however, 	support 	Callaway 	Blue’s
position that Busse did not regard the receipt of Callaway Blue’s
purchase 	order 	to 	be 	acceptance 	of 	a 	binding 	offer. 	See
Restatement (Second) of Contracts § 26 (1981) (“A manifestation of
willingness to enter into a bargain is not an offer if the person
to whom it is addressed knows or has reason to know that the person
making it does not intend to conclude a bargain until he has made
a 	further 	manifestation 	of 	assent.”). 	For 	example, 	Busse’s
proposal stated that Busse “reserve[d] the right” to review any of
5 The Court interchangeably refers to Busse’s Proposed Solution as both
a “proposal” and a “price quote,” given that the document specifies the
cost 	of 	the 	goods 	at 	issue 	and 	refers 	to 	itself 	as 	a 	“quotation.”
Proposed Solution, ECF No. 15-1 at 22.
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Callaway 	Blue’s 	specifications 	regarding 	the 	equipment 	“prior 	to
order entry and acceptance” and further advised that its acceptance
of Callaway Blue’s purchase order was “subject to review” based on
the Seller’s terms and conditions. 	Proposed Solution, ECF No. 15-
1 	at 	6, 	22; 	see 	Architectural 	Metal 	Sys., 	Inc. 	v. 	Consol. 	Sys.,
Inc., 	58 	F.3d 	1227, 	1230 	(7th 	Cir. 	1995) 	(“A 	person 	can 	prevent
his 	[price 	quote] 	from 	being 	treated 	as 	an 	offer 	by 	suitable
language conditioning the formation of a contract on some further
step 	. 	. 	. 	such 	as 	approval 	by 	corporate 	headquarters.”).
Pertinently, 	the 	proposal 	also 	requested 	that 	a 	buyer 	submit 	its
own 	terms 	and 	conditions 	“in 	advance 	of 	[its] 	Purchase 	Order,”
Proposed Solution, ECF No. 15-1 at 4, which suggests that further
negotiation 	as 	to 	those 	terms 	would 	persist 	even 	after 	the
submission of Callaway Blue’s purchase order. 	Indeed, Busse’s own
Customer Approval Letter contained more conditional language (“In
the event Busse/SJI has accepted Customer’s purchase order . . .”)
and 	expressly 	declared 	that 	“BUSSE/SJI 	LLC 	(“SELLER”) 	HEREBY
ACCEPTS 	BUYER’S[] 	PURCHASE 	ORDER[],” 	Customer 	Approval 	Letter 	1,
8, thereby indicating that Busse itself did not intend to be bound
until it accepted Callaway Blue’s offer to purchase its equipment.
Because the limited record before the Court reveals a genuine
factual 	dispute 	about 	whether 	the 	parties 	agreed 	to 	the 	forum
selection clause, this Court cannot decide that issue as a matter
of law. 	It must be resolved by the factfinder, which under Georgia
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law and the Federal Rules of Civil Procedure, contemplates a jury.6
See Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex.,
571 	U.S. 	49, 	62 	(2013) 	(instructing 	district 	courts 	to 	transfer
cases pursuant to forum selection clauses only “[w]hen the parties
have agreed to a valid forum-selection clause.”); Thornton v. Uber
Techs., 	Inc., 	858 	S.E.2d 	255, 	258 	(Ga. 	Ct. 	App. 	2021) 	(Where
“extrinsic evidence exists and is disputed, the question of whether
a party has assented to the contract is generally a matter for the
jury.”); 	Fed. 	R. 	Civ. 	P. 	56(a) 	(Judgment 	as 	a 	matter 	of 	law
appropriate 	only 	where 	“there 	is 	no 	genuine 	dispute 	as 	to 	any
material 	fact”).7 	Accordingly, 	Busse’s 	motion 	to 	transfer 	venue
is denied.8
CONCLUSION
For 	the 	foregoing 	reasons, 	Defendant’s 	motion 	to 	dismiss 	or
transfer (ECF No. 25) is denied. 	The discovery stay (ECF No. 27)
is lifted, and the parties shall file a joint proposed scheduling
order 	within 	21 	days 	after 	the 	entry 	of 	today’s 	Order 	consistent
with the requirements of the Court’s previously issued Rules 16/26
6 In light of this ruling, the Court finds it unnecessary to decide at
this time whether the forum selection clause is unenforceable based upon
fraud in the inducement.
7 The parties have pointed to no binding precedent that would authorize
a judge, instead of a jury, to resolve genuine fact disputes regarding
contract formation such as those presented here.
8 Busse does not argue that this action should be transferred to Wisconsin
because it is a more convenient forum.
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Order (ECF No. 6). 	Busse’s motion for a hearing on its motion to
dismiss/transfer (ECF No. 32) is terminated as moot.
IT IS SO ORDERED, this 16th day of January, 2026.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
Case 4:25-cv-00177-CDL Document 34 Filed 01/16/26 Page 13 of 13