United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
The Red Barn Shop, LLC brought this action in the Brown
County District Court against defendant Plainfield Renewable
Energy, LLC for breach of contract and quantum meruit.
Defendant removed the action to federal court based on
diversity of citizenship, and subsequently filed Defendant
PRE Renewable Energy, LLC's Motion to Dismiss, or
Alternatively, to Transfer Venue (Doc. 5). Defendant claims
that this court lacks personal jurisdiction and is an
improper venue to bring this claim. According to defendant,
nearly all of the relevant actions for this case occurred in
Connecticut-not Kansas. Moreover, defendant claims, the
parties contracted to resolve all disputes arising out of the
contract in Connecticut. For the reasons explained below, the
court grants defendant's motion to transfer.
case arises from an alleged breach of contract regarding a
project to construct, fabricate, and install high rolling
windscreen doors, fixed windscreen enclosures, as well as
other climate and dust control improvements at
defendant's power plant in Plainfield, Connecticut.
According to defendant, this power plant “provides
renewable energy throughout New England” and the
project “was intended to bring the Power Plant into
compliance with Connecticut energy and environmental rules
and regulations.” (Doc. 5, at 2.) The agreement was
entered and performed in 2018. After the project was
completed, plaintiff issued a final invoice for labor and
materials provided under the agreement, but defendant has not
paid $410, 354.84 on the final invoice for plaintiff's
work under the agreement.
the court's jurisdiction is contested, the plaintiff has
the burden of proving jurisdiction exists.” Wenz v.
Memory Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995)
(citations omitted). “Where . . . there has been no
evidentiary hearing, and the motion to dismiss for lack of
jurisdiction is decided on the basis of affidavits and other
written material, the plaintiff need only make a prima facie
showing that jurisdiction exists.” Id.
a forum-selection clause is involved here, the rules are
slightly different: (1) “[T]he plaintiff's choice
of forum merits no weight” and “the plaintiff
bears the burden of establishing that transfer to the forum
for which the parties bargained is unwarranted”; and
(2) The parties' private interests are irrelevant.
Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist.
of Tex., 571 U.S. 49, 63-4 (2013).
Terms of the Forum Selection Clause
argues the agreement between the parties contains a forum
selection clause that requires this claim be brought in
Connecticut. Forum selection clauses are presumptively valid.
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10
(1972); Bowen Eng'g, Corp. v. Pac. Indem. Co.,
83 F.Supp.3d 1185, 1191 (D. Kan. Jan. 6, 2015). Supreme Court
precedent requires a “strong showing” that a
forum selection clause should be set aside. See M/S
Bremen, 407 U.S. at 15 (“Thus, in the light of
present-day commercial realities and expanding international
trade we conclude that the forum clause should control absent
a strong showing that it should be set aside.”);
see also Herr Indus., Inc. v. CTI Sys., SA, 112
F.Supp.3d 1174, 1178 (D. Kan. 2015) (“The Supreme Court
has made clear that a court should respect and enforce a
valid forum selection clause agreed by contracting
parties.”). Forum selection clauses are “prima
facie valid and should be enforced unless enforcement is
shown by the resisting party to be unreasonable under the
circumstances.” Milk “N” More, Inc. v.
Beavert, 963 F.2d 1342, 1346 (10th Cir. 1992).
selection clauses may be labeled as permissive or
mandatory. See K & V Sci. Co., v. Bayerische Motoren
Werke Aktiengesellschaft (“BMW”), 314 F.3d
494, 498 (10th Cir. 2002) (citing Excell, Inc. v.
Sterling Boiler & Mech., Inc., 106 F.3d 318, 320
(10th Cir. 1997)). The language of the provision determines
whether the clause is permissive or mandatory. See
Id. (“Mandatory forum selection clauses contain
clear language showing that jurisdiction is appropriate only
in the designated forum.”). Where venue is specified
with mandatory or obligatory language, the clause will be
enforced. Id. at 499. Language creating a mandatory
forum selection clause must be exclusive, such as
“only, ” “sole, ” or
“exclusive.” See Kirk v. NCI Leasing,
No. 6:05-cv-01199-MLB-DWB, 2005 WL 3115859 (D. Kan. Nov. 21,
2005); Knight Oil Tools, Inc. v. Unit Petroleum Co.,
No. CIV 05-0669 JB/ACT, 2005 WL 2313715 (D. N.M. Aug. 31,
2005) (finding multiple cases where use of the word
“shall” was not itself sufficient to deem the
clause mandatory); K&V Sci. Co., 314 F.3d at
forum selection provision in the agreement between plaintiff
and defendant states:
GOVERNING LAW, JURISDICTION AND BUYER'S RIGHTS: Seller
and Buyer agree that this Purchase Order is made and executed
in the state where the work is performed and
shall be interpreted under the laws
of that state. Buyer and Seller hereby submit to
the jurisdiction of the courts of such
waiving the jurisdiction of any other
court. The prevailing Party in any claim before
the court shall be entitled to have the costs of the court
and attorney fees paid by the other Party.
(Doc. 6-1, at 108 (emphasis added).) The jurisdictional
language is exclusive, referring only to one state. The
provision includes an express waiver of all other
jurisdictions except the state these parties consented to. It
prohibits litigation in jurisdictions other than that
specified by the parties-a significant indication that this
provision is mandatory. See K&V Sc. Co., 314
F.3d at 498 (“In contrast, permissive forum selection
clauses authorize jurisdiction in a designated forum, but do
not prohibit litigation elsewhere.”). The language of
the express waiver establishes that jurisdiction is
appropriate only in the designated forum. Because the forum
selection provision is mandatory, ...