Diversity Suit but forum selection clause in contract

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jdubb990
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Diversity Suit but forum selection clause in contract

Postby jdubb990 » Thu Nov 25, 2010 9:25 pm

Civil Procedure practice exam, one question is pertaining to a diversity action filed in federal court in Texas. However, the contract for services between the plaintiff and defendant stated that "disputes arising under or as a result of this agreement will be litigated in Alabama." Defendant is in Alabama.

I remember briefly going over forum selection clauses, but can't seem to find anything in my outline. Help would be appreciated.

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Royal
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Re: Diversity Suit but forum selection clause in contract

Postby Royal » Thu Nov 25, 2010 9:43 pm

My Civ Pro outline is not finished yet, so I may not be right, but I'll take a crack at it!

Forum selection clauses are generally enforced as long as they're reasonable. See Carnival Cruise Lines v. Shute. Since Defendant is located in Alabama, and that's the forced forum in the clause, it's probably reasonable.

I'm not sure, however, what the defendant's next step would be. Rule 12(b)(2) motion, maybe?

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jdubb990
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Re: Diversity Suit but forum selection clause in contract

Postby jdubb990 » Thu Nov 25, 2010 9:47 pm

AHA! I remember the Carnival case, in fact I think there may have been two cruise ship cases. They use the forum selection clause because of efficiency because there is the possibility of so many different suits from different patrons of different states. I wonder what that practice (of enforcing forum selection clauses) is grounded in though? (28 USC____, FRCP___?, or common law?)

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Postby APimpNamedSlickback » Thu Nov 25, 2010 10:02 pm

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Last edited by APimpNamedSlickback on Sun Dec 30, 2012 11:07 pm, edited 1 time in total.

BerkTownBoaltie
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Re: Diversity Suit but forum selection clause in contract

Postby BerkTownBoaltie » Fri Nov 26, 2010 5:23 am

...

nyknicks
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Re: Diversity Suit but forum selection clause in contract

Postby nyknicks » Fri Nov 26, 2010 2:59 pm

Royal wrote:My Civ Pro outline is not finished yet, so I may not be right, but I'll take a crack at it!

Forum selection clauses are generally enforced as long as they're reasonable. See Carnival Cruise Lines v. Shute. Since Defendant is located in Alabama, and that's the forced forum in the clause, it's probably reasonable.

I'm not sure, however, what the defendant's next step would be. Rule 12(b)(2) motion, maybe?


Wondering this also, I'm thinking 12(B)(2) and 12(B)(3) motions?
Last edited by nyknicks on Fri Nov 26, 2010 3:22 pm, edited 1 time in total.

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vanwinkle
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Re: Diversity Suit but forum selection clause in contract

Postby vanwinkle » Fri Nov 26, 2010 3:08 pm

betasteve wrote:
jdubb990 wrote:AHA! I remember the Carnival case, in fact I think there may have been two cruise ship cases. They use the forum selection clause because of efficiency because there is the possibility of so many different suits from different patrons of different states. I wonder what that practice (of enforcing forum selection clauses) is grounded in though? (28 USC____, FRCP___?, or common law?)

common Ks law - freedom of contract principle.

This. As long as it's reasonable and doesn't violate anything else, common law says they can stipulate to nearly anything. You can stipulate to venue. However, because other posters said you can stipulate to "venue and jurisdiction", I want to note the important difference between personal jurisdiction and subject-matter jurisdiction.

You can stipulate to personal jurisdiction (the power of the court to haul you in before it) because you're agreeing by contract to appear before that state's courts. You can also waive personal jurisdiction by appearing in that state's court without claiming lack of personal jurisdiction at the first opportunity. There are plenty of ways to get around personal jurisdiction. However, you absolutely cannot waive or stipulate to subject-matter jurisdiction (whether courts have the authority to hear the case at all). If you stipulate that your diversity claim for less than $75,000 can be heard in federal court, it doesn't matter, the court still lacks the authority to hear it.

dakatz
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Re: Diversity Suit but forum selection clause in contract

Postby dakatz » Fri Nov 26, 2010 3:13 pm

Was going to point out the Carnival Cruise Line case, but I see someone already did. Also check out Bremen v. Zapata Off-Shore Company, where Supreme Court made it clear that the forum selection clause should be upheld, as long as it wasn't unreasonable or unjust.

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Re: Diversity Suit but forum selection clause in contract

Postby dakatz » Fri Nov 26, 2010 3:17 pm

betasteve wrote:
vanwinkle wrote:
betasteve wrote:
jdubb990 wrote:AHA! I remember the Carnival case, in fact I think there may have been two cruise ship cases. They use the forum selection clause because of efficiency because there is the possibility of so many different suits from different patrons of different states. I wonder what that practice (of enforcing forum selection clauses) is grounded in though? (28 USC____, FRCP___?, or common law?)

common Ks law - freedom of contract principle.

This. As long as it's reasonable and doesn't violate anything else, common law says they can stipulate to nearly anything. You can stipulate to venue. However, because other posters said you can stipulate to "venue and jurisdiction", I want to note the important difference between personal jurisdiction and subject-matter jurisdiction.

You can stipulate to personal jurisdiction (the power of the court to haul you in before it) because you're agreeing by contract to appear before that state's courts. You can also waive personal jurisdiction by appearing in that state's court without claiming lack of personal jurisdiction at the first opportunity. There are plenty of ways to get around personal jurisdiction. However, you absolutely cannot waive or stipulate to subject-matter jurisdiction (whether courts have the authority to hear the case at all). If you stipulate that your diversity claim for less than $75,000 can be heard in federal court, it doesn't matter, the court still lacks the authority to hear it.

yeah - good point addressing pjx v. subject matter. It all boils down to the court's power. Of course a party can waive a court's "inability" to have pjx (power) over a person because pjx is, at least in part, a personal right. However, subject matter is the immutable power and limitation of the court on the issues before it - it is not directly for the protection of, or subject to the preferences of, the individual. This part is also why personal jurisdiction can be waived and not be an issue later in a trial, but a successful challenge to subject matter jx can absolutely kill a proceeding no matter what stage it is in, and a court can even do it sua sponte.


Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

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vanwinkle
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Re: Diversity Suit but forum selection clause in contract

Postby vanwinkle » Fri Nov 26, 2010 3:18 pm

dakatz wrote:Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

I want to hear this now. Do you remember the case name?

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let/them/eat/cake
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Re: Diversity Suit but forum selection clause in contract

Postby let/them/eat/cake » Fri Nov 26, 2010 3:35 pm

vanwinkle wrote:
dakatz wrote:Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

I want to hear this now. Do you remember the case name?


it might very well be this:

--LinkRemoved--

there's an audio of the opinion. and reading it, it definitely sounds like a dressing down...

EDIT: having read it, it this isn't the opinion to which the poster above was referring, I'd sure like to know what it was. These lawyers must have wanted to crawl under a rock and die.

The Kim Jong illest
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Re: Diversity Suit but forum selection clause in contract

Postby The Kim Jong illest » Fri Nov 26, 2010 4:07 pm

Further note on forum selection clauses: there are basically states that totally ignore them and states that respect them completely. There are courts that will act as if forum selection clauses are not there.

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vanwinkle
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Re: Diversity Suit but forum selection clause in contract

Postby vanwinkle » Fri Nov 26, 2010 4:24 pm

The Kim Jong illest wrote:Further note on forum selection clauses: there are basically states that totally ignore them and states that respect them completely. There are courts that will act as if forum selection clauses are not there.

This may be true for a state court applying state law that these shouldn't be followed, but if you're taking an exam on federal civil procedure, 99.9% of the time it's going to involve a hypo in federal courts. All you have to do there is note that the federal court should consider the contract a consent to personal jurisdiction, and just assume that to be true for the rest of your answer. Unless you spent a lot of time in class talking about why a court might ignore such a stipulation, this isn't something you'd need to worry about on exam day.

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Re: Diversity Suit but forum selection clause in contract

Postby vamedic03 » Fri Nov 26, 2010 5:11 pm

betasteve wrote:
The Kim Jong illest wrote:Further note on forum selection clauses: there are basically states that totally ignore them and states that respect them completely. There are courts that will act as if forum selection clauses are not there.

Um, where? Given the supreme court precedent that they are binding unless unreasonable, I am having difficulty believing this.


Betasteve, you need to take a class on Choice of Law before you make these sorts of blanket statements. Assuming that you're talking about a state claim being heard by a federal court under diversity jurisdiction, it's a matter of state law whether any given portion of a contract is enforceable. This includes forum selection clauses and choice of law clauses. How each state handles a given clause is going to depend on their own contract law, as well as what choice of law system they ascribe to.

Now, as far as for a Civ Pro exam the above doesn't matter. For the sake of Civ Pro, follow Carnival. But, just keep your mind open to topics you'll learn about later in school.

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Re: Diversity Suit but forum selection clause in contract

Postby smittytron3k » Fri Nov 26, 2010 5:23 pm

vanwinkle wrote:
dakatz wrote:Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

I want to hear this now. Do you remember the case name?


belleville catering co. v. champaign market place l.l.c., 350 F.3d 691

dakatz you dont happen to be one of the million section 1 people on TLS do you?

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Re: Diversity Suit but forum selection clause in contract

Postby dakatz » Fri Nov 26, 2010 6:22 pm

smittytron3k wrote:
vanwinkle wrote:
dakatz wrote:Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

I want to hear this now. Do you remember the case name?


belleville catering co. v. champaign market place l.l.c., 350 F.3d 691

dakatz you dont happen to be one of the million section 1 people on TLS do you?


Nope, no Section 1. As for the case, glad someone found the name. Its not a case my class actually read. We just listened to the tape while learning about SM jurisdiction and making the point that a case can be dismissed for lack of SM juris. at any time. The two things I learned from listening to it are 1.) Judge Easterbook is not someone I wanna screw up in front of, and 2.) Make damn sure to file your paperwork correctly before getting the case started!

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Re: Diversity Suit but forum selection clause in contract

Postby APimpNamedSlickback » Fri Nov 26, 2010 7:40 pm

x
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D. H2Oman
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Re: Diversity Suit but forum selection clause in contract

Postby D. H2Oman » Fri Nov 26, 2010 7:48 pm

APimpNamedSlickback wrote:law school is an intellectually unworthy endeavor. this thread has 21 posts about a rule that basically boils down to "if a, then b."

1l is only hard because of how much is on the line. but hey, this shit is easy.



+1 these fools be making clowns of themselves.

ToTransferOrNot
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Re: Diversity Suit but forum selection clause in contract

Postby ToTransferOrNot » Fri Nov 26, 2010 7:50 pm

dakatz wrote:
smittytron3k wrote:
vanwinkle wrote:
dakatz wrote:Lol we listened to an audio recording of Judge Easterbook pointing out the lack of proper subject matter jurisdiction like 2 years into a lawsuit. He then verbally undresses every single lawyer present. Listening to them shake in their boots from this terribly imposing man was one of the highlights of our semester.

I want to hear this now. Do you remember the case name?


belleville catering co. v. champaign market place l.l.c., 350 F.3d 691

dakatz you dont happen to be one of the million section 1 people on TLS do you?


Nope, no Section 1. As for the case, glad someone found the name. Its not a case my class actually read. We just listened to the tape while learning about SM jurisdiction and making the point that a case can be dismissed for lack of SM juris. at any time. The two things I learned from listening to it are 1.) Judge Easterbook is not someone I wanna screw up in front of, and 2.) Make damn sure to file your paperwork correctly before getting the case started!



Probably the most important lesson anyone can take out of law school.

12262010
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Re: Diversity Suit but forum selection clause in contract

Postby 12262010 » Fri Nov 26, 2010 8:04 pm

APimpNamedSlickback wrote:law school is an intellectually unworthy endeavor. this thread has 21 posts about a rule that basically boils down to "if a, then b."

1l is only hard because of how much is on the line. but hey, this shit is easy.


HAAHAHAHAHAAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAAAAAAAAAAAAAAAA HAAHAHAHAHAAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAAAAAAA

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Re: Diversity Suit but forum selection clause in contract

Postby APimpNamedSlickback » Sat Nov 27, 2010 3:41 am

x
Last edited by APimpNamedSlickback on Wed Dec 22, 2010 12:14 pm, edited 1 time in total.

12262010
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Re: Diversity Suit but forum selection clause in contract

Postby 12262010 » Sat Nov 27, 2010 3:43 am

APimpNamedSlickback wrote:the pressure's on, but guess who ain't gonna crack/ ha ha. pardon me, i had to laugh at that.

bet i'll pwn both of your 1l first semesters, my stiffer competition notwithstanding.

god, i've clearly gone delirious from contracts outlining. good night.


unless you're first in your class, good luck pwning steve. you delusional fuck.

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mths
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Re: Diversity Suit but forum selection clause in contract

Postby mths » Sat Nov 27, 2010 4:58 am

booyakasha wrote:
APimpNamedSlickback wrote:the pressure's on, but guess who ain't gonna crack/ ha ha. pardon me, i had to laugh at that.

bet i'll pwn both of your 1l first semesters, my stiffer competition notwithstanding.

god, i've clearly gone delirious from contracts outlining. good night.


unless you're first in your class, good luck pwning steve. you delusional fuck.

:lol: :lol: :lol: :lol:

sometimes, you make me happy

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ResolutePear
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Re: Diversity Suit but forum selection clause in contract

Postby ResolutePear » Sat Nov 27, 2010 12:51 pm

booyakasha wrote:
APimpNamedSlickback wrote:law school is an intellectually unworthy endeavor. this thread has 21 posts about a rule that basically boils down to "if a, then b."

1l is only hard because of how much is on the line. but hey, this shit is easy.


HAAHAHAHAHAAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAAAAAAAAAAAAAAAA HAAHAHAHAHAAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAAAAAAA

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existenz
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Re: Diversity Suit but forum selection clause in contract

Postby existenz » Sat Nov 27, 2010 2:27 pm

APimpNamedSlickback wrote:law school is an intellectually unworthy endeavor. this thread has 21 posts about a rule that basically boils down to "if a, then b."

1l is only hard because of how much is on the line. but hey, this shit is easy.

APimpNamedSlickback wrote:the pressure's on, but guess who ain't gonna crack/ ha ha. pardon me, i had to laugh at that.

bet i'll pwn both of your 1l first semesters, my stiffer competition notwithstanding.

Ah Slick, so predictable. From a week ago:

THE GRADE GAME

It was the first few weeks of January, and fall grades had yet to arrive. The denizens of USS Bitter Pessimism were staring to sound like 0Ls waiting for their LSAT scores.

"Oh god I'll kill myself if I got a C," Renton wrote. "That first question kicked my ass."

"Expecting the worst," IAFG wrote. "Well at least bf is jobsecure."

APNS played the part of annoying douchebag. "I was honestly expecting the exams to be difficult, or at least moderately challenging. Let me put it this way: if those exams were a bitch, I put that bitch in the hospital."

Joan was resentful but resigned. "My period started the night before exams. TransferNOTsecure :lol: "

Desert Fox looked on the bright side. "Well at least I spelled my name right. I think."

"Sooo nervous," Jackie wrote. "Oh god I can't believe I'm asking internet people for sympathy."

BriaTharen promised herself a drinking binge if she was above a 3.5 GPA. About ten guys offered to pick up the tab if that happened. Holly asked if she could get the same deal, but no one was wealthy enough to risk a Golightly bar tab. Beta and Booya told everyone to calm down, that law school isn't that hard, but in reality they were hoping to lord it over anyone who was sub-median. "They will no longer call me Beta," BetaSteve wrote to Booya in a private message. "I will henceforth be Alpha to those losers."

When the grades arrived, panic ensued.

"Fuuuuuuuuuuuck," wrote LtK.

"Hmm, maybe I should pursue that writing career," wrote Existenz.

"Can I haz my paralegal job back? :lol: " Holly wrote.

"Well, someone had to set the bottom edge of the curve, fuck you very much," Boo Jersey Shore wrote.

APNS suddenly went silent and defriended everyone on FB....




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