Edward Venard v. Jackson Hole Paragliding, LLC, a Wyoming LLC, Tom Bartlett, Scott Harris, Matt Combs, Jon Hunt, Andrew Frye, and Jeff Coulter

IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 8

OCTOBER TERM, A.D. 2012

January 17, 2013

EDWARD VENARD,

Appellant
(Plaintiff),

v.
S-11-0232
JACKSON HOLE PARAGLIDING, LLC, a
Wyoming LLC, TOM BARTLETT, SCOTT
HARRIS, MATT COMBS, JON HUNT,
ANDREW FRYE, and JEFF COULTER,

Appellees
(Defendants).

Appeal from the District Court of Teton County
The Honorable Timothy C. Day, Judge

Representing Appellant:

P. Richard Meyer and Robert N. Williams, Meyer & Williams, Attorneys at Law,
P.C., Jackson, Wyoming. Argument by Mr. Meyer.

Representing Appellees:

Cameron S. Walker, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming;
Timothy E. Herr, Herr & Zapala, LLP, San Jose, California; and David G. Lewis,
Jackson, Wyoming. Argument by Mr. Walker.
Before KITE, C.J., and GOLDEN,* HILL, VOIGT, and BURKE, JJ.

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a dissenting opinion.

*Justice Golden retired effective September 30, 2012.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Appellant, Edward Venard, filed suit against Appellees in Wyoming district court
to recover damages for personal injuries sustained during a paragliding lesson. Appellees
filed a motion to dismiss seeking to enforce a forum selection clause contained in a
“Release, Waiver and Assumption of Risk Agreement” that Mr. Venard had signed as a
condition of his membership with the United States Hang Gliding and Paragliding
Association (USHPA). Several of the Appellees had signed similar agreements with
USHPA, but none of the Appellees was a party to the agreement between Mr. Venard and
USHPA. Based upon the forum selection clause, Appellees contended that California
was the appropriate forum for litigation of the dispute. The district court agreed and
granted the motion to dismiss. Mr. Venard challenges that decision in this appeal. We
reverse.

ISSUE

[¶2] Did the district court abuse its discretion by granting Appellees’ Motion to
Dismiss based on a forum selection clause in the Release, Waiver and Assumption of
Risk Agreement signed by Mr. Venard?

FACTS

[¶3] In August of 2008, Mr. Venard attended a paragliding training clinic at the
Palisades Reservoir near Alpine, Wyoming, offered by Appellee, Jackson Hole
Paragliding, LLC (JHP). During the clinic, Mr. Venard was towed in the air by a cable
attached to a boat. He was thirty-five feet in the air when the operation failed and he fell
to the ground, suffering severe injuries. The individual Appellees were involved in the
training session as employees, owners, or agents of JHP.

[¶4] At the time of the incident, Mr. Venard was a member of USHPA.1 He had joined
USHPA in July, 2008. In addition to joining USHPA, Mr. Venard also sought a Flight
Proficiency Rating to assess his skill level. As a condition of obtaining both membership
in USHPA and a Flight Proficiency Rating, USHPA requires that applicants sign a
“Release, Waiver and Assumption of Risk Agreement.” The agreement between
Mr. Venard and USHPA provides, in relevant part, as follows:

1
Initially formed as the United States Hang Gliding Association (USHGA), the organization later
changed its name to the United States Hang Gliding and Paragliding Association (USHPA).

1
 In consideration of the benefits to be derived from
membership in the USHGA, Ed Venard (Pilot) and the parent
or legal guardian of Pilot if Pilot is a minor, for themselves,
their personal representatives, heirs, executors, next of kin,
spouses, minor children and assigns, do agree as follows:

A. DEFINITIONS . . .

3. “RELEASED PARTIES” means the following,
including their owners, officers, directors, agents,
spouses, employees, officials (elected or otherwise),
members, independent contractors, sub-contractors,
lessors and lessees:

a) The United States Hang Gliding
Association, a California Non-profit
Corporation (USHGA);

...

f) All persons involved, in any manner, in
the sports of hang gliding and/or paragliding at
the site(s) where Pilot PARTICIPATES IN
THE SPORT. “All persons involved” includes,
but is not limited to, spectators, hang glider
and/or paraglider pilots, powered ultralight
pilots, assistants, drivers, instructors, observers,
and owners of hang gliding and/or paragliding
equipment; . . .

B. I FOREVER RELEASE AND DISCHARGE the
RELEASED PARTIES from any and all liabilities, claims,
demands, or causes of action that I may hereafter have for
SPORTS INJURIES, however caused, even if caused by the
negligence (whether active or passive) of any of the
RELEASED PARTIES, to the fullest extent allowed by law.

C. I WILL NOT SUE OR MAKE A CLAIM against any
of the RELEASED PARTIES for loss or damage on account
of SPORTS INJURIES. . . .

D. I AGREE THAT this AGREEMENT shall be governed
by and construed in accordance with the laws of the State of

2
 California. All disputes and matters whatsoever arising
under, in connection with or incident to this Agreement shall
be litigated, if at all, in and before a Court located in the State
of California, U.S.A. to the exclusion of the Courts of any
other State or Country.

(Emphasis in original.)

[¶5] Mr. Venard filed suit against Appellees in Wyoming district court on August 4,
2010. In his complaint, he alleged that the incident occurred “on Palisades Reservoir
located partially in Wyoming and partially in Idaho,”2 that JHP was a Wyoming limited
liability company, and that all other defendants were residents of Wyoming. Appellees
answered the complaint, generally denying Mr. Venard’s allegations. 3 Appellees
subsequently filed a motion to dismiss based on the forum selection clause contained in
the agreement between Mr. Venard and USHPA. They claimed they were third-party
beneficiaries of the agreement and that California was the proper forum for resolution of
the dispute. In support of their motion, Appellees also provided affidavits to Mr. Venard
consenting to the jurisdiction of California courts to resolve the litigation.4 After a
hearing, the district court granted the motion to dismiss, finding that the agreement
between Mr. Venard and USHPA was enforceable, and that it required Mr. Venard to file
suit against Appellees in California. The effect of the forum selection clause contained in
that agreement is the subject of this appeal.

STANDARD OF REVIEW

[¶6] A court may, in its discretion, decline jurisdiction “in recognition of the parties’
free and voluntary choice of a different forum.” Durdahl v. Nat’l Safety Assocs., Inc.,
988 P.2d 525, 528 (Wyo. 1999). Such a decision will be reviewed for an abuse of
discretion. Id. A court has abused its discretion when it reasonably could not have
concluded as it did. Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 149, 226 P.3d 889, 935
(Wyo. 2010).

2
In the Order Granting Defendants’ Motion to Dismiss, the district court determined that the accident
occurred “on the beach of the Palisades Reservoir in Idaho near the Wyoming border.”
3
Appellees Bartlett and Frye denied that they were Wyoming residents.
4
The affidavits are not in the record on appeal. Mr. Venard contends that the consents were given after
expiration of the California statute of limitations. We need not determine whether those allegations are
accurate or whether the California statute of limitations applies in this case in order to resolve the issue
that has been presented.

3
 DISCUSSION

[¶7] We begin our discussion by noting that, absent the forum selection clause, there
does not appear to be any question that the Wyoming district court had subject matter
jurisdiction and personal jurisdiction over all of the parties. Additionally, absent the
forum selection clause, it also appears that Wyoming is the most convenient forum for
resolution of the dispute. Mr. Venard asserts that he is a resident of Wyoming and
received paragliding instruction leading up to the events in question in Wyoming.
Appellee, JHP, is a Wyoming limited liability company and most of the individual
Appellees reside in Wyoming. The majority of the potential witnesses appear to be
located in Wyoming.

[¶8] In contrast, there is no evidence to suggest that any of the parties to the litigation
had any significant contacts with California. The incident did not occur in California,
and none of the parties to the litigation are residents of California. The owners of JHP
conceded that JHP has no significant contacts with the state of California. JHP is not a
member of USHPA. In addition, there is no indication that any of the potential witnesses
reside in California.

[¶9] There is, however, a forum selection clause at issue in this case and the question
presented is whether it may be enforced against Mr. Venard by Appellees. Historically,
forum selection clauses were disfavored by American courts as contrary to public policy
for precluding jurisdiction in a court of rightful authority. M/S Bremen v. Zapata Off-
Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). The United States
Supreme Court, motivated by an expansion of international commerce, abandoned that
rationale and eventually accepted the validity of forum selection clauses where “[t]he
choice of that forum was made in an arm’s-length negotiation by experienced and
sophisticated businessmen . . . .” Id. at 12, 92 S.Ct. at 1914. “The elimination of all such
uncertainties by agreeing in advance on a forum acceptable to both parties is an
indispensable element in international trade, commerce, and contracting.” Id. at 13-14,
92 S.Ct. at 1915.

[¶10] Later, the United States Supreme Court expanded its approval of forum selection
clauses to some contracts not negotiated at arm’s-length. The Court decided that a forum
selection clause contained in a non-negotiated, preprinted passage contract for a cruise
liner was valid for a number of reasons:

First, a cruise line has a special interest in limiting the fora in
which it potentially could be subject to suit. . . . Additionally,
a clause establishing ex ante the forum for dispute resolution
has the salutary effect of dispelling any confusion about
where suits arising from the contract must be brought and
defended, sparing litigants the time and expense of pretrial

4
 motions to determine the correct forum and conserving
judicial resources that otherwise would be devoted to
deciding those motions.

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 1527, 113
L.Ed.2d 622 (1991). The Court went on to scrutinize the clause for fundamental fairness,
stating that the clause was not intended to discourage passengers from pursuing
legitimate claims for two reasons--the cruise line’s principal place of business was in
Florida, and Florida was a main port for the cruise line. Id. at 595, 111 S.Ct. at 1528.

[¶11] We joined the majority of jurisdictions in recognizing the enforceability of forum
selection clauses with our decision in Durdahl, 988 P.2d 525. In Durdahl, the forum
selection clause at issue was contained in an “Independent Dealer/Distributor
Application” executed by the Durdahls and National Safety Associates, Inc. (NSA). Id.
at 527. The forum selection clause stated, in relevant part, that “the parties hereto agree
that any and all claims involving this agreement shall be brought solely in the courts of
Shelby County[,] Tennessee.” Id. We provided insight to the chosen forum by noting
that “NSA is located in Memphis, Shelby County, Tennessee.” Id. Following a
contractual dispute, the Durdahls filed suit against NSA in Wyoming district court,
asserting causes of action based on breach of contract, promissory estoppel, and
fraudulent misrepresentation. Id. We framed the issue presented as “whether Wyoming
should exercise its discretion to decline jurisdiction over the matter by giving effect to the
parties’ intent as expressed in their contract.” Id. at 528.

[¶12] Ultimately, we held in Durdahl that “forum selection clauses are prima facie valid
and will be enforced absent a demonstration by the party opposing enforcement that the
clause is unreasonable or based upon fraud or unequal bargaining positions.” Id. After
finding that the Durdahls had “failed to satisfy their heavy burden of proof as the party
opposing enforcement of a forum selection clause,” we held that “the district court’s
decision to decline to exercise jurisdiction in this matter and to enforce the forum
selection clause did not constitute an abuse of discretion.” Id. at 530. We noted that our
decision was grounded in the “freedom of contract” and furthered the goal of “enhancing
contractual predictability.” We observed that: “[t]he rationale behind the modern
approach to enforcing forum selection clauses is that it serves the salutary purpose of
enhancing contractual predictability,” and “comports with traditional concepts of freedom
of contract and recognizes the present nationwide and worldwide scope of business
relations which generate multi-jurisdictional litigation.” Id. at 527-28 (internal quotation
marks and citation omitted). The applicability of our holding in Durdahl to the facts of
this case is at the heart of this dispute.

[¶13] In Durdahl, as in M/S Bremen and Carnival Cruise Lines, the parties to the
litigation were the same as the parties to the contract. All parties had agreed to the forum
selection clause. All had consented in advance of the litigation to personal jurisdiction in

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the forum state. The factual situation presented in this case, however, is fundamentally
different from that presented in Durdahl. In the present case, the contract containing the
forum selection clause was between Mr. Venard and USHPA. USHPA is not a party in
this litigation. Because they were not parties to the contract, none of the Appellees had
consented in advance to personal jurisdiction in the courts of California for resolution of
this dispute.

[¶14] Although Appellees were not parties to the contract between Mr. Venard and
USHPA, they contend they are released parties under Mr. Venard’s agreement with
USHPA and are entitled to enforce the forum selection clause as third-party beneficiaries
of the agreement. Further, Appellees assert that, because they are members of USHPA
and executed similar agreements with USHPA, they have consented to jurisdiction in
California. Appellees also point out that they expressly consented to jurisdiction in
California after Mr. Venard filed suit in Wyoming. They contend that because their
consent to jurisdiction in California establishes personal jurisdiction there, the forum
selection clause should be enforced against Mr. Venard. We do not agree.

[¶15] The district court properly recognized that enforceability of the forum selection
clause depended upon whether the defendants were bound by the clause. The district
court framed the issue as follows:

10. It should be noted that the Court is not concerned with
any agreements any Defendants have signed with USHGA.
The issue before the Court is the ramifications of Plaintiff’s
agreement with USHGA. It is uncontested that all of the
Defendants are third party beneficiaries of Plaintiff’s Release
Agreement. The question is whether Defendants are
bound by Plaintiff’s forum selection clause as third party
beneficiaries.

(Emphasis added.) Ultimately, the district court concluded that Appellees were bound by
the forum selection clause. According to the district court:

11. In a California case decided by the Ninth Circuit Court
of Appeals, a defendant5, who was a third party beneficiary to
a contract with a forum selection clause, argued that
enforcement of the clause, which required his appearance in

5
In the case cited by the district court, the third-party beneficiary to the contract sued as plaintiff. The
district court was apparently under the mistaken impression that the third-party beneficiary, TAAG, was
the defendant in that case.

6
 Switzerland, was unreasonable because he had not signed the
contract. Taag Linhas Aereas de Angola v. Transamerica
Airlines, Inc., 915 F.2d 1351 (9th Cir. 1990). See, Eric H. Lu
v. Dryclean-U.S.A. of California, 11 Cal. App. 4th 1490, 1494
(Cal. App. 1 Dist., 1992). The Ninth Circuit enforced the
forum selection clause against the third party beneficiary,
stating that “it is well-settled contract law that the scope of a
third-party beneficiary’s rights is defined by the contract.
The Third Circuit has held that a forum selection clause can
restrict a third-party beneficiary to the designated forum. We
also so hold.”

12. This Court agrees. The relevant contract in this case is
the Release Agreement Plaintiff signed with USHGA. In that
contract, Plaintiff agreed not to sue for injuries suffered while
paragliding and, if he did sue, the complaint would be
brought in California. All Defendants are third party
beneficiaries of the contract, and they are bound by the
forum selection clause unless the contract is found to be
u n r e a s o n a b l e a c c o r d i n g t o t h e Durdahl factors.
Defendants’ own contracts with USHGA, or lack thereof, are
irrelevant.

(Emphasis added.) Consistent with the district court’s determination, Appellees contend
that, although they are not parties to the agreement between Mr. Venard and USHPA,
they are entitled to enforce the forum selection clause contained in the agreement because
they are third-party beneficiaries of that agreement. Appellees’ reliance on their status as
third-party beneficiaries to enforce the forum selection clause is misplaced.

[¶16] Neither the district court, nor Appellees, have cited to any precedent that is
factually similar to the case at hand. The two cases relied upon by the district court are
illustrative. When placed in proper context, neither supports the conclusion that
Appellees were bound by the forum selection clause.

[¶17] In TAAG, 915 F.2d 1351, plaintiff (the national airline of Angola) filed suit in
California seeking to recover commissions due under an air transport agreement. TAAG
was not a party to the contract but was the successor in interest to a third-party
beneficiary named in the agreement. The contract contained a forum selection provision
identifying Switzerland as the sole forum for disputes arising from the contract. The
California court granted the defense motion to dismiss. Id. at 1353. The result is not
surprising. The litigation involved enforcement of the contract containing the forum
selection clause. The plaintiff, TAAG, was closely related to the third-party beneficiary
because it was the corporate successor to the third-party beneficiary. There was no

7
question that the third-party beneficiary had knowledge of the contract. It was named in
the contract and had received commissions under the contract. It was foreseeable to the
third-party beneficiary that the forum selection clause would have applied in any action
to enforce the contract.

[¶18] The present case is more akin to the situation presented in Gootnick v. Lighter,
2005 U.S. Dist. LEXIS 30291, *23 (N.D. Cal. Nov. 15, 2005) where the district court
found that the decision in TAAG was inapplicable. The court distinguished TAAG,
stating:

The promissory note is a single document signed only by
defendant Lighter, in his individual capacity, and it makes no
reference to the corporate defendants. Plaintiffs have not
sought to enforce and collect upon the promissory note, either
from Lighter or the corporate defendants, distinguishing this
case from TAAG Linhas Aereas v. Transamerica Airlines,
Inc., 915 F.2d 1351 (9th Cir. [1990]). The venue selection
provision of the promissory note does not apply to these
defendants or the claims now being brought against them.

The corporate defendants’ motion to dismiss or transfer venue
pursuant to the forum selection clause contained in the
October 8, 2004 Promissory Note is DENIED.

[¶19] In Lu, 11 Cal. App. 4th 1490, the second case relied upon by the district court,
plaintiff franchisees entered into an agreement with defendant franchisers and the parent
company for a license to operate one of its franchise outlets. The agreement contained a
forum selection clause providing that if a dispute arose as a result of the agreement it
would be litigated in Dade County, Florida, where the parent company maintained its
principal place of business. Subsequently, plaintiffs filed an action in California seeking
rescission and damages alleging that defendants misrepresented the advantages of
operating a franchise. Defendants then filed a motion to dismiss based on the forum
selection clause.

[¶20] The plaintiffs claimed, in part, that the forum selection clause should not be
enforced “because two of the defendants, Dryclean Franchise and Dryclean U.S.A., did
not sign the Agreement containing the clause.” Id., 11 Cal. App. 4th at 1493-94. The
appellate court rejected the argument explaining:

Here, the alleged conduct of Dryclean Franchise and
Dryclean U.S.A. is closely related to the contractual
relationship. They are alleged to have participated in the
fraudulent representations which induced plaintiffs to enter

8
 into the Agreement. Indeed, plaintiffs go so far as to allege
Dryclean Franchise and Dryclean U.S.A. are the “alter ego”
of Dryclean California, which did sign the Agreement
containing the forum selection clause. Under these
circumstances, the fact that Dryclean Franchise and Dryclean
U.S.A. did not sign the Agreement does not render the forum
selection clause unenforceable. (See TAAG Linhas Aereas de
Angola v. Transamerica (9th Cir. 1990) 915 F.2d 1351,
1354; Manetti-Farrow, Inc. v. Gucci America, Inc., supra,
8 5 8 F . 2 d a t p . 5 1 4 , f n . 5 ; Coastal Steel v. Tilghman
Wheelabrator Ltd. (3d Cir. 1983) 709 F.2d 190, 203.) To
hold otherwise would be to permit a plaintiff to sidestep a
valid forum selection clause simply by naming a closely
related party who did not sign the clause as a defendant.

Id., 11 Cal. App. 4th at 1494. Again, the result is not surprising. The action initiated by
plaintiffs was one clearly arising from the contract. Plaintiffs had agreed to the forum
selection clause and the non-party defendants were closely related to one of the parties to
the agreement.

[¶21] In forum selection cases involving non-parties to the agreement containing the
forum selection clause, many courts have addressed the issue by evaluating the
relationship of the non-signatory to the contracting party and determining whether it is
foreseeable to the non-signatory that it will be bound. For example, in Medtronic, Inc. v.
Endologix, Inc., 530 F. Supp. 2d 1054, 1057 (D. Minn. 2008), the court held that “when
deciding whether the [closely-related-party] doctrine applies, a court must answer only
the following question: should the third party reasonably foresee being bound by the
forum-selection clause because of its relationships to the cause of action and the
signatory to the forum-selection clause?” (citing Marano Enters. v. Z-Teca Rests., L.P.,
254 F.3d 753, 757 (8th Cir. 2001)); see also Cooper v. Meridian Yachts, Ltd., 575 F.3d
1151, 1170 (11th Cir. 2009) (“[I]n order to bind a non-party to a forum selection clause,
the party must be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it
will be bound.”); Holland Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th
Cir. 2007); Lipcon v. Underwriters at Lloyd’s, 148 F.3d 1285, 1299 (11th Cir. 1998).
Non-signatories to an agreement containing a forum selection clause that have been
found to be “closely related” to the contracting party have included parent corporations
to the contracting party, Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509,
510-11 (9th Cir. 1988); spousal guarantors of the contracting party, Lipcon, 148 F.3d
at 1299; directors of the contracting party, Marano Enters., L.P., 254 F.3d at 757;
corporations controlled by the contracting party, Hugel v. Corporation of Lloyd’s,
999 F.2d 206, 210 (7th Cir. 1993); agents of the contracting party, Bonny v. Society of
Lloyd’s, 3 F.3d 156, 162 (7th Cir. 1993); successor corporations to the contracting
party, Aguas Lenders Recovery Group LLC v. Suez, S.A., 585 F.3d 696, 701 (2d Cir.

9
2009); and corporations affiliated with the contracting party, Holland Am. Line, 485
F.3d at 456; Lu, 11 Cal. App. 4th at 1494; but see Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d
1287, 1297 (3d Cir. 1996) (finding that affiliated corporations could not invoke a forum
selection clause because “there is no more reason to disregard the corporate structure
with respect to such claims as there would be to disregard it with respect to other legal
matters”).

[¶22] In addressing the issue of whether non-signatories should be bound by a forum
selection clause, the Seventh Circuit has found that the terms “closely related” and
“foreseeability” may be better understood with reference to the principle of mutuality:

[C]ourts in this country (the significance of this qualification
will become clear shortly) enforce forum selection clauses in
favor of nonparties “closely related” to a signatory. Hugel v.
Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993);
Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509,
514 n.5 (9th Cir. 1988). That is not an illuminating phrase;
nor is recasting it as an issue of “foreseeability” much of a
help. But these vague formulas can be given meaning by
reference to the principle of mutuality. Rejected in recent
times in areas of the law ranging from contract to
collateral estoppel, the principle of mutuality retains
undeniable appeal in regard to the scope of forum
selection clauses. This case shows why. Suppose the
plaintiffs wanted to sue Refco in Germany. Since the basis of
their claim is that Refco totally controlled the promoters and
trustees who are the nominal signatories of the investment
contracts, the plaintiffs could argue as a justification for
enforcing the forum selection clause in the investment
contracts that the clause binds Refco as the secret principal of
the signatories. See Hodes v. S.N.C. Achille Lauro, 858 F.2d
905, 912 (3d Cir. 1988); General Electric Co. v. Siempelkamp
GmbH & Co., 809 F. Supp. 1306, 1310 (S.D. Ohio 1993),
aff’d, 29 F.3d 1095 (6th Cir. 1994); cf. Certain Interested
Underwriters at Lloyd’s v. Layne, 26 F.3d 39, 43 (6th Cir.
1994); Kirno Hill Corp. v. Holt, 618 F.2d 982, 985 (2d Cir.
1980) (per curiam); Restatement (Second) of Agency § 186
(1958). If so, mutuality requires that Refco be allowed to
invoke the clause. Otherwise the plaintiffs would have a
choice of venues but Refco would not, and there is no
reason for such an asymmetry of procedural choices. All
Refco is doing in invoking the forum selection clause to
which it is not a party is accepting one of the premises of the

10
 plaintiff’s suit-that the promoters and trustees are indeed
simply cat’s p a w s o f R e f c o-and pointing out that the
implication is that the investment contracts, including the
forum selection clause, are really between the plaintiffs and
Refco.

Frietsch v. Refco, Inc., 56 F.3d 825, 827-28 (7th Cir. Ill. 1995) (emphasis added). This
discussion in Frietsch was succinctly capsulized in Buffet Crampon S.A.S. v. Schreiber &
Keilwerth, 2009 U.S. Dist. LEXIS 101391, *28 (N.D. Ind. Nov. 2, 2009), as follows:
“Pursuant to the principle of mutuality, a non-signatory may invoke a forum-selection
clause to the extent the clause could be invoked against it.”

[¶23] Importantly, Durdahl is not inconsistent with the principles noted above. Our
decision in Durdahl, and the precedent upon which we relied, was premised upon the
freedom to contract. Nuhome Invs., LLC v. Weller, 2003 WY 171, ¶ 10, 81 P.3d 940, 945
(Wyo. 2003). Where the parties to a contract agree to a forum selection provision, both
have notice of that provision and it can be enforced by, or against, either party to the
contract. We enforced the forum selection clause in Durdahl because both parties in the
litigation had contractually agreed to litigate any dispute arising from that contract in a
specific forum. Both parties were bound by the forum selection provision. It was
foreseeable to both parties that the dispute would be litigated in the contractually
designated forum. Enforcement of the provision furthered the goal of predictability
identified in Durdahl.

[¶24] In contrast, the forum selection clause at issue in this case is contained in an
agreement between Mr. Venard and USHPA. If Mr. Venard had brought suit to enforce
the contract against USHPA, the forum selection clause may well be valid and
enforceable under the principles articulated in Durdahl. By entering into a contract
containing a forum selection clause identifying California as the forum for litigation of
disputes arising from the contract, the parties to the contract consented to personal
jurisdiction in the California courts. Enforcement of the forum selection clause in that
situation would give effect to the intentions of the parties as expressed in the contract and
would further the recognized goals of efficiency and predictability.

[¶25] In the present case, however, Mr. Venard did not bring suit to enforce that
contract. Indeed, none of the Appellees were parties to that contract. In light of these
facts, we cannot conclude that Appellees were bound by the forum selection clause
contained in the agreement between Mr. Venard and USHPA.

[¶26] Finally, Appellees contend that the district court correctly determined that
California could assert jurisdiction over the parties in this matter based on Appellees’
similar agreements with USHPA and because Appellees expressly consented to
jurisdiction in California after suit was filed. Mr. Venard, however, contends that

11
Appellees “could have readily and successfully raised a jurisdictional defense to defeat
plaintiff’s claims had [Appellees] been sued [in California]. Now, secure in [their] hope
that the statute of limitations has run, the Appellees have consented to the California
Court’s jurisdiction and, predictably, made a motion to dismiss Appellant’s claims in the
case filed by Appellant in California on that basis.” Mr. Venard asserts that
“enforcement of the clause will likely result in Plaintiff being denied his day in court
altogether.”

[¶27] While we agree with Mr. Venard that it is questionable whether personal
jurisdiction could be established in California based solely on Appellees’ separate
agreements with USHPA, we need not consider the issue. Whether California could
assert jurisdiction over these parties is beside the point. The issue presented, as
paraphrased from Durdahl, 988 P.2d at 528, and adapted to this case, is whether both
parties consented in advance to jurisdiction in a selected forum, such that we should give
effect to the parties’ intent. Neither Appellees’ agreements with USHPA, nor their
belated consent to jurisdiction in California establish prior consent by Appellees to
personal jurisdiction of the California courts to resolve the issues raised in this litigation.
Without that prior consent, the justification for enforcement of a forum selection clause
expressed in M/S Bremen, Carnival Cruise Lines, and Durdahl is absent.

[¶28] In sum, the forum selection clause contained in the agreement between
Mr. Venard and USHPA is not enforceable as between the parties to the present
litigation. Appellees were not parties to that contract and did not consent in advance to
the jurisdiction of the California courts. Accordingly, we conclude that the district court
abused its discretion in dismissing the complaint. We reverse and remand for further
proceedings consistent with this opinion.

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VOIGT, J., dissenting.

[¶29] I respectfully dissent. The majority finds that the district court abused its
discretion in dismissing this suit based upon a forum selection clause contained in an
agreement between the appellant and USHPA, and similar agreements signed by several
of the appellees. By concluding that the district court abused its discretion, the majority
has concluded that the district court could not have reasonably concluded as it did. I
disagree. The party arguing that a court reached an unreasonable conclusion bears a
heavy burden of proof. Durdahl v. Nat’l Safety Assocs., Inc., 988 P.2d 525, 528 (Wyo.
1999).

[¶30] The United States Supreme Court has recognized the validity of forum selection
clauses. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522,
1527, 113 L.Ed.2d. 622 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92
S.Ct. 1907, 1913 (1972). Wyoming follows the modern approach to forum selection
clauses, which is to find such clauses prima facie valid, “unless the opposing party
demonstrates that enforcement would be unreasonable under the circumstances of the
case or that it was the result of fraud or unequal bargaining power.” Durdahl, 988 P.2d at
527.

[¶31] The record contains numerous facts from which the district court could have found
reason to give effect to the forum selection clause: USHPA, a first-party member of the
agreements containing the forum selection clauses (and releases of liability), is a
California non-profit corporation; about 28% of USHPA’s membership is from
California; the accident occurred in Idaho, not in Wyoming; some of the defendants were
not Wyoming residents; and the appellant has traveled to California since the accident.
Further, “a clause establishing ex ante the forum for dispute resolution has the salutary
effect of dispelling any confusion about where suits arising from the contract must be
brought and defended . . . .” Carnival Cruise Lines, 499 U.S. at 593-94, 111 S.Ct. at
1527. “The recognized rationale of enforcing forum selection clauses is that it enhances
contractual predictability and comports with traditional concepts of freedom of contract”
Nuhome Invs., LLC v. Weller, 2003 WY 171, ¶ 10, 81 P. 3d 940, 945 (Wyo. 2003). What
the majority has done in this opinion is to render the USHPA agreements and releases
ineffective, at least for the 72% of USHPA members who do not reside in California,
including several of these appellees.6 The district court is also left with the difficult
prospect of conducting the proceedings under California law, inasmuch as the majority
opinion does not go so far as to invalidate the choice of law provision selecting the laws

6
The majority opinion states that the appellees’ agreements with USHPA (in which they selected
California as the forum state for litigating all disputes under the agreements) does not give the courts of
California personal jurisdiction over them. There is no authority cited for that proposition.

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of the State of California. The first question under California law should be the effect of
the appellant promising in the agreement not to sue the people he is suing.

[¶32] I would affirm.

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