United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
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.
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
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,
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.
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
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.
Enforceability of Forum Selection Clause
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.”
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).
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.
Ambiguity of the ...