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Worley v. Celebrate Children International, Inc.

United States District Court, E.D. Missouri, Southeastern Division

November 16, 2016




         This matter is before the Court on the defendants' motion to dismiss, or, transfer (#3). The matter has been fully briefed and is ripe for disposition. For the following reasons, the Court will enforce the forum selection clause within the contract and grant the defendants' motion to dismiss.

         I. Factual Background

         Plaintiffs filed a petition in Circuit Court in Cape Girardeau County, Missouri, against defendants alleging breach of contract and twelve various torts stemming from several failed adoption attempts. Plaintiffs are citizens of Missouri and defendants Celebrate Children International, Inc. (“CCI”) adoption agency and its executive director, Susan Hedberg, are citizens of Florida. Plaintiffs allege they entered into a valid, binding contract with CCI in an attempt to adopt a child or children from the Democratic Republic of the Congo (“DRC”).

         The 23-page contract, initialed on each page by each plaintiff and Dated: five different pages by each plaintiff, contains a choice-of-law clause and a forum selection clause. The paragraph in question, which is highlighted in large type, states:

This Agreement shall be interpreted under the laws of the State of Florida. Any dispute resolution or other legal proceedings pertaining to this Agreement shall be resolved [in] Seminole County, State of Florida.

         Despite the provision, plaintiffs filed their petition in state court in Cape Girardeau County, Missouri. Plaintiffs bring 13 counts, including breach of contract, several torts grounded in negligence, breach of fiduciary duty, misrepresentation, fraud, and unlawful merchandising practices under § 407.020 RSMo (#10). Defendants properly removed the action to this Court under 28 U.S.C. § 1441(a) invoking this Court's diversity jurisdiction. Defendants then filed their motion to dismiss or, in the alternative, motion to transfer (#3).

         II. Discussion

         Defendants seek dismissal or transfer of this case in light of plaintiffs' contractual Agreement to resolve legal disputes “pertaining to this Agreement” in Florida. Both parties cite only Missouri law throughout the briefing. However, the “Eighth Circuit has indicated its general agreement with the proposition that in a diversity case federal law controls whether a forum selection clause applies.” Nicolais v. Balchem Corporation, No. 4:14-CV-1936 CAS, 2015 WL 6436747, at *2 (E.D. Mo. Oct. 22, 2015) (citing Rainforest Café, Inc. v. EklecCo, L.L.C., 340 F.3d 544, 546 (8th Cir. 2003)). Although this proposition has not been definitively held and thus appears to be an open question, “where the application of state law or federal law would not affect the outcome, a federal court may apply the federal standard as first articulated in M/S Bremen v. Zapata Off Shore Co., 407 U.S. 1 (1972).” Joda L.L.C. v. Kitov Resources Ltd., No. 4:09-CV-1897 SNLJ, 2010 WL 2555792, at *1 (E.D. Mo. June 23, 2010). That is the case here. In fact, Missouri has adopted the federal standard articulated in M/S Bremen in analyzing the enforceability of forum selection clauses. Accordingly, this Court will examine the issue under federal law. Id; see also Servewell Plumbing L.L.C. v. Federal Ins. Co., 439 F.3d 786, 789 (8th Cir. 2006); Nicolais, 2015 WL 6436747 at *2.

         1. Enforceability of Forum Selection Clause

         The M/S Bremen standard is that “forum selection clauses are prima facie valid and enforced unless they are unjust or unreasonable or invalid for reasons such as fraud or overreaching.” M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 (8th Cir. 1999) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). Forum selection clauses are enforceable “unless they would actually deprive the opposing party of his fair day in court.” Id. (internal citations omitted). Further, determining a defendant's motion to transfer, the Court should not “consider arguments about the parties' private interests” and should “deem the private-interest factors to weigh entirely in favor of the preselected forum.” Id.

         The preselected forum within a valid forum selection clause represents the parties' agreement as to the most proper and convenient forum, and enforcement of the clause protects the parties' expectations at the time of contracting. Atlantic Marine Const. Co. Inc. v. U.S. District Court for Western Dist. of Texas, 134 S.Ct. 568, 581 (2013) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988). In the Atlantic Marine case, the Supreme Court also explained that analysis of the enforcement of forum selection clauses pointing to state or foreign forums requires consideration of factors under the doctrine of forum non conveniens. Id. at 580 (“the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens”); see also Freedom Smokeless, Inc. v. Rapid Dev. Services, Inc., No. 4:15-CV-00771 AGF, 2015 WL 5735201 at *5 (E.D. Mo. Sep. 29, 2015).

         Here, the forum selection clause “points” to a Florida state court in Seminole County. Under the M/S Bremen and Atlantic Marine standards, the Court first must determine whether the forum selection clause at issue is enforceable, valid, unambiguous, and mandatory in its terms. Id; see Kanza Const., Inc. v. Kansas City Southern Ry. Co., 13 F.Supp.3d 985, 989 (W.D. Mo. 2014). Then, the Court must consider the public policy of the forum state when determining the enforceability of a forum selection clause. Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968 (8th Cir. 2012) (internal citations omitted). However, “[b]ecause [public policy] factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases.” Atlantic Marine Const. Co. Inc. 134 S.Ct. at 582.

         2. Ambiguity of the ...

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