United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1548
___________
Servewell Plumbing, LLC, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Federal Insurance Company, *
*
Defendant - Appellee. *
___________
Submitted: October 13, 2005
Filed: March 2, 2006
___________
Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Servewell Plumbing, LLC appeals the dismissal of its claim against Federal
Insurance Company as surety on a labor and material payment bond issued to Summit
Contractors, Inc. The district court1 dismissed the claim for improper venue based on
a forum selection clause in the contract between Summit and Servewell, which
required any claim against Summit or Federal, as Summit's bonding company, to be
brought in Duval County, Florida. On appeal, Servewell argues that the dimissal of
1
The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
its claim was error because the forum selection clause was unenforceable. For the
foregoing reasons, we affirm.
This case arises out of a contract dispute between the plaintiff Servewell, a
Tennessee corporation, and Summit, a Florida corporation, relating to the construction
of an apartment complex in Pulaski County, Arkansas. In January 2002, Summit, the
general contractor on the project, entered into a subcontract with Servewell, for
Servewell to perform plumbing work at the apartment complex. Servewell alleges
that during the course of construction Summit breached its agreement and as result it
owed $123,342.37 for labor and materials Servewell had furnished for the project.
The subcontract between Servewell and Summit contained a forum selection clause,
which provided that the exclusive venue and jurisdiction for any claim against Summit
or its bonding company would be in Duval County, Florida.2 Notwithstanding this
provision, in February 2003, Servewell filed suit against Summit and the owner of the
2
The forum-selection clause in the subcontract between Servewell and Summit
provides as follows:
ARTICLE 23: CHOICE OF LAW AND VENUE
This Subcontract shall be construed in accordance with the Laws of the
State of Florida. [Servewell] expressly agrees to be subject to personal
jurisdiction in the State of Florida and further waives any right to venue
in any action brought under this Subcontract Agreement or against any
bond posted by [Summit]. [Servewell] acknowledges that [Summit's]
bonding company is an intended third-party beneficiary of this
jurisdiction and venue provision. [Summit] has the sole option to select
venue in Duval County, Florida, or the site of this project, for any action
it brings under the Subcontract Agreement. In any action brought
against [Summit] or its bonding company under this Subcontract
Agreement, jurisdiction and venue shall be in Duval County, Florida,
unless and until [Summit] stipulates to jurisdiction and venue at the site
of the project.
Jt. App. 38.
2
project in Pulaski County Circuit Court, Arkansas. In December 2003, the Arkansas
circuit court dismissed Servewell's claim against Summit for improper venue, relying
on the forum selection clause in the contract between Summit and Servewell.
Servewell appealed the dismissal, which the Arkansas Supreme Court later affirmed.
Servewell Plumbing, LLC v. Summit Contractors, Inc., No. 04-1306, --- S.W.3d ---,
2005 WL1406336 (Ark. June 16, 2005).
On July 27, 2004, while its appeal was still pending, Servewell filed a second
action in Pulaski County, this time naming Federal as the sole defendant. Acting as
Summit's surety on the project, Federal had issued a labor and material payment bond
in the amount of $5,847,000. Servewell's action sought a monetary judgment against
Federal as surety on Summit's bond for the $123,342.37 Summit allegedly owed to
Servewell. Although like the subcontract, the bond document contained a forum
selection clause, this forum selection clause provided for venue and jurisdiction in the
county where the project was located, i.e., Pulaski County, Arkansas.3 However, on
June 16, 2003, during the course of the Pulaski County litigation between Servewell
and Summit, Federal and Summit agreed for valuable consideration to waive the
3
The forum-selection clause in the payment bond between Federal and Summit
provides:
3. No suit or action shall be commenced hereunder by any claimant:
...
c) Other than in a state court of competent jurisdiction in and for the
county or other political subdivision of the state in which the Project, or
any part thereof, is situated, or in the United States District Court for the
district in which the Project, or any part thereof, is situated, and not
elsewhere.
Jt. App. 28-29.
3
venue and jurisdictional requirement of the bond to the extent necessary to permit
Summit to enforce the forum selection clause in its subcontract with Servewell.4
After removing the matter to the United States District Court for the Eastern
District of Arkansas, Federal moved to dismiss for improper venue, relying on the
forum selection clause in the subcontract between Servewell and Summit. The district
court granted Federal's motion, rejecting Servewell's arguments that the forum
selection clause in the subcontract was unenforceable. In doing so, the court reasoned
that the clause was fair and reasonable since "Servewell freely entered into a contract
4
The document, entitled Partial Waiver, states in relevant part:
Summit Contractors, Inc. ("Summit"), as Principal, and Federal
Insurance Company, as surety, are parties to a certain Labor and Material
Payment bond . . . Under paragraph 3(c) of the Bond, the parties agreed
that no suit or action shall be commenced by any claimant other than in
a state court of competent jurisdiction in and for the county or other
political subdivision of the state in which the Project, or any part thereof,
is situated, or in the United States District Court for the district in which
the Project, or any part thereof, is situated, and not elsewhere.
Servewell Plumbing, LLC ("Servewell") was a subcontractor to
Summit on the Project though Servewell's contract was terminated prior
to completion of the Project. Summit is presently a defendant in an
action brought by Servewell pending in the Circuit Court of Pulaski
County, Arkansas . . .. However, under the terms of their subcontractor
agreement, Summit and Servewell agreed that venue and jurisdiction for
any claim brought against Summit or against the Bond would be in
Duval County, Florida. For good and valuable consideration, Summit
and Federal Insurance Company hereby agree to waive the venue and
jurisdictional requirements of paragraph 3(c) of the Bond to the extent
necessary to allow Summit to enforce the venue and jurisdictional
requirement of the subcontract between Summit and Servewell.
Jt. App. 48.
4
with Summit providing that any dispute would be litigated in Duval County, Florida,
despite the fact that the Project was in Arkansas. Servewell, thus, could anticipate
having to litigate in Florida." Following the district court's dismissal of its claim
without prejudice, Servewell filed a timely notice of appeal.
The parties do not dispute the meaning, scope, or applicability of the forum
selection clause in the subcontract, all of which would be questions of contract
interpretation that we would review de novo. See e.g., Rainforest Café, Inc. v.
EklecCo, LLC, 340 F.3d 544, 546 (8th Cir. 2003); Dunne v. Libbra, 330 F.3d 1062,
1063 (8th Cir. 2003). Instead, the parties' disagreement centers on whether the district
court should have enforced the agreed-to clause, a decision we review for an abuse of
discretion. See, e.g., Marano Enter. of Kan. v. Z-Teca Restaurants, L.P., 254 F.3d
753, 757 (8th Cir. 2001); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d
750, 753 (8th Cir. 1999); see also Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688,
691-92 (8th Cir. 1997) (applying de novo standard to district court's construction of
forum selection clause, but recognizing abuse of discretion standard for question of
whether to enforce the clause).
Initially we must address the question of whether to apply state or federal law
in determining the enforceability of the clause. Because "the enforceability of a forum
selection clause concerns both the substantive law of contracts and the procedural law
of venue," Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69
(8th Cir. 1986), there is some disagreement among the circuits over whether state or
federal law applies, see M.B. Restaurants, 183 F.3d at 752 n.4 (collecting cases), and
we have yet to adopt a definitive position on the issue. Id.; Rainforest Café, 340 F.3d
at 546.5 Nor must we do so here, since both Arkansas and Florida follow the federal
5
In Sun World Lines, 801 F.2d at 1069, we held that the question of the
enforceability of a forum selection clause is procedural for Erie purposes and applied
federal law. Shortly thereafter, in Farmland Indus., Inc. v. Frazier-Parrott
Commodities Inc., 806 F.2d 848, 852 (8th Cir. 1986), abrogated on other grounds,
5
standard announced by the Supreme Court in M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972), see, e.g., Nelms v. Morgan Portable Bldg. Corp., 808 S.W.2d 314,
316-17 (Ark. 1991); Manrique v. Fabbri, 493 So.2d 437, 440 (Fla. 1986), and neither
party argues that the application of one or another body of law would materially affect
the outcome. See M.B. Restaurants, 183 F.3d at 752 (avoiding Erie question and
applying federal law to determine enforceability of forum selection clause where
parties did not argue federal and state standards differed). Thus, for purposes of this
appeal, we apply the standard announced in Bremen and adopted by the highest courts
of Florida and Arkansas, while considering state substantive law when called for
under that standard. See Farmland Indus., 806 F.2d at 852.
Under Bremen, "[f]orum selection clauses are prima facie valid and are
enforced unless they are unjust or unreasonable or invalid." M.B. Restaurants, 183
F.3d at 752 (citing Bremen, 407 U.S. at 15); Nelms, 808 S.W.2d at 316-17; Manrique,
493 So.2d at 440. Where, as here, the forum selection clause is the fruit of an arm's-
length negotiation, the party challenging the clause bears an especially "heavy burden
of proof" to avoid its bargain. Bremen, 407 U.S. at 17. Only "some compelling and
countervailing reason" will excuse enforcement of a bargained-for forum selection
clause. Id. at 12; accord Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94
(1991).
Servewell does not suggest that the forum selection clause in the subcontract
was the product of fraud or overreaching; instead, it focuses on the supposed
unreasonableness and injustice of requiring it to litigate its claim against Federal in
Florida. Servewell first argues that the forum selection clause is unreasonable and
unjust because Servewell lacks "minimum contacts" with Florida, and therefore
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989), a different panel of this court
considered Missouri public policy in determining enforceability, but ultimately
reserved the "difficult question" of "[w]hether a contractual forum-selection clause is
substantive or procedural."
6
Florida lacks personal jurisdiction over it. This argument is wholly without merit. "In
judging minimum contacts" the focus is "on 'the relationship among the defendant, the
forum, and the litigation,'" Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775
(1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)) (emphasis added).
Servewell, the party objecting to Florida's exercise of personal jurisdiction, is the
plaintiff in this case, not the defendant. The Supreme Court does not require a
plaintiff, like Servewell, to have minimum contacts with the forum State before
permitting that State to assert personal jurisdiction over a nonresident defendant and
has "upheld the assertion of jurisdiction where such contacts were entirely lacking."
Id. at 779. Because Servewell's contacts with Florida do not dictate whether Florida
may exercise personal jurisdiction over Federal, Servewell's personal jurisdiction
argument cannot render the agreed-to forum selection clause unenforceable.
Next, Servewell argues that the forum selection clause is unreasonable and
unjust because litigation in Florida would be inconvenient. Following Bremen, we
have held that mere "inconvenience to a party is an insufficient basis to defeat an
otherwise enforceable forum selection clause." M.B. Restaurants, 183 F.3d at 753.6
Instead, a party seeking to avoid his promise must demonstrate that proceeding in "the
contractual forum will be so gravely difficult and inconvenient that he will for all
practical purposes be deprived of his day in court." Dominium Austin Partners., LLC
v. Emerson, 248 F.3d 720, 727 (8th Cir. 2001) (quoting Bremen, 407 U.S. at 18). The
"great expense" Servewell claims it will incur if forced to secure witnesses located in
Arkansas for litigation in Florida, falls well short of depriving it of its day in court.
Compare McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 345-46
(8th Cir. 1985) (holding chaotic post-revolutionary conditions in Iran, including its
ongoing war with Iraq, excused enforcement of clause requiring litigation there) with
6
Indeed, Bremen explicitly rejected mere inconvenience as a reason for
avoiding enforcement of a bargained-for forum selection clause, reasoning that the
parties contemplated such inconvenience when they entered into their agreement. 407
U.S. at 17-18.
7
M.B. Restaurants, 183 F.3d at 753 (enforcing forum selection clause requiring
litigation in Utah over plaintiff's objection that he could not afford to litigate there);
Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303-04 (5th Cir. 1998) (enforcing
Peruvian forum selection clause against financially destitute family of deceased
security guard); Sun World Lines, 801 F.2d at 1068 (reasoning that the "alternative
of using depositions of key witnesses provides adequate opportunity for [plaintiffs]
to have their fair day in court" in enforcing forum selection clause requiring Missouri
company to litigate in Germany). Thus, there is no basis for concluding that any
inconvenience to Servewell would make it unfair, unjust, or unreasonable to hold it
to its bargain.
Finally, Servewell argues that the forum selection clause is unreasonable and
unjust because it is contrary to Arkansas public policy. Under Bremen, a forum
selection clause may be set aside if "enforcement would contravene a strong public
policy of the forum in which suit is brought, whether declared by statute or by judicial
decision." Id. at 15. Servewell points to two areas of Arkansas law that it contends
embody the state's "strong public policies." We address each argument in turn.
First, Servewell argues that the forum selection clause is contrary to Arkansas
law requiring that an in rem action to enforce a materialmen's lien be brought in the
county where the construction project is located. In support of this argument,
Servewell quotes extensively from a recent case of the Arkansas Supreme Court
invalidating a forum selection clause that purported to fix venue outside of Arkansas
for a subcontractor's in rem action foreclosing on its materialmen's lien. RMP Rentals
v. Metroplex, Inc., 146 S.W.3d 861, 866 (Ark. 2004). Metroplex concluded that the
Arkansas materialmen's lien statute embodied the public policy that "[o]nly an
Arkansas court has subject matter jurisdiction to enforce the liens and to order
foreclosure on real property located within [Arkansas'] borders." 146 S.W.3d at 864.
Relying on Bremen, the court held that this public policy was strong enough to trump
an otherwise enforceable forum selection clause. Id. at 866. Servewell's reliance on
8
Metroplex is misplaced. Unlike the subcontractor's in rem action at issue in
Metroplex, Servewell does not seek to foreclose on a real property lien. Instead,
Servewell's action seeks an in personam judgment against Federal as surety for
amounts owed by Summit. Thus, any public policy, strong or otherwise, applicable
to an in rem action like that at issue in Metroplex is inapplicable to Servewell's in
personam action against Federal.
Servewell's second public policy argument centers on the provision of the
Arkansas Insurance Code mandating that an action under an insurance policy "shall
be brought in . . . the county in which the loss occurred." Ark. Code Ann. § 23-79-
204(a)(1). Even if, as Servewell contends, the mandatory language of this provision
demonstrates that it embodies a "strong public policy" of the State of Arkansas, the
provision does not apply to Servewell's claim against Federal. Rather, Ark. Code
Ann. § 16-60-115, which specifically addresses proper venue for an action against a
surety on a contractor's payment or performance bond, trumps the general venue
provision of the Arkansas Insurance Code fixing venue for any action against any type
of insurer. See, e.g., Bd. of Trustees for City of Little Rock Police Dep't. Pension and
Relief Fund v. Stodola, 942 S.W.2d 255, 258 (Ark. 1997) (applying rule of statutory
construction that the specific controls over the general).7
7
Because we conclude that the general venue provision is inapplicable to
Servewell's claim, we express no opinion as to whether it or any other provision of the
Arkansas Insurance Code could qualify as a "strong public policy" under Bremen.
See, e.g., Interamerican Trade Corp. v. Companhia Fabricadora De Pecas, 973 F.2d
487, 490 (6th Cir. 1992) (enforcing forum selection clause notwithstanding Ohio
policy of protecting local businesses from victimization by nonresident businesses for
failure to pay commissions); Lien Ho Hsing Steel Enter. Co. v. Weihtag, 738 F.2d
1455, 1460 (9th Cir. 1984) (holding that "statute defining the limits of Hawaiian
courts' jurisdiction does not, in itself, express a 'strong policy' that insurance cases
must be tried locally despite a clause in the insurance contract to the contrary").
9
Unlike the mandatory language of the Arkansas Insurance Code's venue statute,
the specific venue statute applicable to Servewell's action against Federal is
permissive. Compare Ark. Code Ann. § 16-60-115 ("may be brought") with Ark.
Code Ann. § 23-79-204(a)(1) ("shall be brought"). We are unconvinced that such a
permissive venue statute constitutes the kind of "strong public policy" sufficient to
invalidate a forum selection clause under Bremen, since the primary purpose of a
forum selection clause is to opt out of the default venue set by such statutes.
Moreover, invalidating a forum selection clause because it conflicts with a statutory
venue provision ignores the strong countervailing public policy in favor of holding
parties to their agreements, which a court in similar circumstances has described as
the "dominant policy in contract cases . . . the better to promote commerce." Omron
Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 603 (7th Cir. 1994) (enforcing
forum selection clause over plaintiff's objection that the clause offended strong public
policy of federal securities laws); cf. Modern Computer Sys., Inc. v. Modern Banking
Sys., Inc., 871 F.2d 734, 740 (8th Cir. 1989) (en banc) (holding that Minnesota policy
in favor of enforcing parties' agreements outweighed Minnesota policy of offering
franchisees remedies greater than those available at common law) superseded in
statute as stated in Commercial Prop. Inv., Inc. v. Quality Inns Int'l, 938 F.2d 870,
874 (8th Cir. 1991). Because Servewell's reliance on Arkansas public policy fails to
overcome the strong presumption of enforceability that attaches to an agreed-to forum
selection clause, we decline its invitation to excuse it from its bargain.
The judgment of the district court is affirmed.8
______________________________
8
Although Federal asks us to modify the dismissal from one without prejudice
to one with prejudice, it cites no authority in support of its request. We therefore will
not indulge its request.
10