FILED
NOT FOR PUBLICATION MAR 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEADCO PETROLEUM, FKA New West No. 13-15146
Petroleum, a California corporation,
D.C. No. 2:12-cv-01446-MCE-
Plaintiff - Appellant, JFM
v.
MEMORANDUM*
TRAFIGURA AG, a Connecticut
corporation; TRAFIGURA BEHEER
B.V., a Netherlands corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Submitted March 12, 2015**
San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
Deadco Petroleum appeals from the district court’s judgment dismissing its
action for improper venue. The district court concluded that all of Deadco’s claims
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
were subject to a forum selection clause, which was located in the parties’ Product
Service Agreement (PSA), and which designated New York state courts as the
exclusive forum for litigation. We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291. Sportswear, Inc. v. Vuarnet Int’l, B.V., 114 F.3d 848, 850 (9th Cir.
1997). We typically review the district court’s decision to enforce a forum
selection clause for abuse of discretion. Kukje Hwajae Ins. Co. v. M/V Hyundai
Liberty, 408 F.3d 1250, 1254 (9th Cir. 2005). Also, “because enforcement of a
forum [selection] clause necessarily entails interpretation of the clause before it can
be enforced,” we review the district court’s interpretation of the forum selection
clause de novo. See Manetti-Farrow, Inc. v. Gucci Am. Inc., 858 F.2d 509, 513
(9th Cir. 1988). We affirm.
Deadco’s central argument on appeal is that the PSA’s forum selection
clause is inapplicable because Deadco’s claims are not rooted in the PSA, but
rather in an alleged “overarching partnership” agreement of which the PSA was
only a part. However, Deadco failed to provide evidence supporting the existence
of its alleged partnership. See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324
(9th Cir. 1996) (“Absent some evidence submitted by the party opposing
enforcement of the clause . . . the provision should be [upheld]” (emphasis in
original), quoting Pelleport Investors, Inc. v. Budco Quality Theaters, Inc., 741
2
F.2d 273, 280 (9th Cir. 1984). See also Spradlin v. Lear Siegler Mgmt. Servs. Co.,
926 F.2d 865, 868-69 (9th Cir. 1991) (affirming a district court’s dismissal, based
on a forum selection clause, because the appellant “relied in the district court [and]
on appeal . . . on broad and conclusory allegations of fraud without offering any
specific factual allegations or evidentiary support”).
Additionally, in considering a motion to dismiss, courts are “not required to
accept as true conclusory allegations which are contradicted by documents referred
to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th
Cir. 1998). Here, not only was there a lack of evidence supporting an alleged
partnership, but the PSA itself explicitly disavows a partnership relationship
between the parties.
Even if a partnership agreement did exist, it would not allow Deadco to
circumvent the PSA’s forum selection clause because all of Deadco’s claims
“cannot be adjudicated without analyzing whether the parties were in compliance
with the [PSA].” Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th
Cir. 1988). Indeed, each of Deadco’s claims seeks to enforce rights that either
appear in the PSA, or at least relate to the contractual relationship it describes. The
basic source of any duty owed by Trafigura to Deadco—whether originating in tort
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or in contract—derives ultimately from the contractual relationship described in the
PSA.
Moreover, even if it were true that the relevant contractual terms were in
both the PSA and a partnership agreement, their presence in the PSA is dispositive.
A party cannot enumerate rights in two contracts, and then avoid the second
contract’s valid forum selection clause by telling the court it wishes to enforce its
rights under the first, which advantageously happens not to contain a forum
selection clause. Consequently, the district court did not abuse its discretion in
enforcing the forum selection clause as to all claims and dismissing the action for
improper venue.
Next, the district court did not abuse its discretion in refusing to hold an
evidentiary hearing on the existence of the alleged partnership. See Murphy v.
Schneider Nat’l, Inc., 362 F.3d 1133, 1139 (9th Cir. 2003). First, because Deadco
failed to ask for an evidentiary hearing or to offer any evidence supporting the
existence of the alleged partnership, there was no genuine factual dispute to resolve
through an evidentiary hearing. Second, as stated above, even if Deadco could
show that a separate partnership agreement predated and coexisted with the PSA,
all causes of action still would be fairly encompassed within the PSA’s forum
selection clause.
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Finally, the district court also acted within its discretion in dismissing the
action without leave to amend. A district court does not abuse its discretion in
denying leave to amend where the amendment would be futile. Reddy v. Litton
Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Here, it would have been futile to
permit Deadco to amend its claims “to set forth additional facts regarding the
overarching partnership between [the parties].” As stated above, even if the
“overarching partnership” existed and contained the same terms as the PSA, this
fact would not allow Deadco to circumvent the fully integrated PSA, which
contained the same relevant terms and the dispositive forum selection clause.
AFFIRMED.
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