AFC Franchising, LLC v. Danilo Purugganan ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13849
____________________
AFC FRANCHISING, LLC,
Plaintiff-Appellant,
versus
DANILO PURUGGANAN,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cv-00456-JHE
____________________
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2 Opinion of the Court 20-13849
Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
NEWSOM, Circuit Judge, delivered the opinion of the Court.
TJOFLAT, Circuit Judge, filed a concurring opinion.
NEWSOM, Circuit Judge:
In this case, we must decide whether Danilo Purugganan
consented to personal jurisdiction and venue in the Northern Dis-
trict of Alabama by agreeing to a “floating” forum-selection clause.
We hold that, in the circumstances presented, the clause is applica-
ble and enforceable. Accordingly, we reverse the district court’s
contrary decision and remand for further proceedings.
I
AFC Franchising is an Alabama LLC with its principal place
of business in Shelby County, Alabama. Purugganan is a resident
of New York. In 2009, Purugganan signed a “Master Developer
Agreement” with another company, Doctors Express Franchising,
to develop urgent-care centers in New York and Connecticut. Doc-
tors Express was an LLC with its principal place of business in Mar-
yland, and the parties agreed that the contract would be governed
by Maryland law.
After a series of acquisitions, AFC was assigned Doctors Ex-
press’s end of the bargain in 2013, and Purugganan was notified of
the assignment. It is undisputed that this assignment was permis-
sible. Indeed, the Master Developer Agreement expressly author-
ized Doctors Express to “change [its] ownership or form and/or
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20-13849 Opinion of the Court 3
assign th[e] Agreement and any other agreement to a third party
without restriction.” Doc. 1-2 at 17.
As particularly relevant here, the Master Developer Agree-
ment—which Doctors Express drafted—contains the following fo-
rum-selection provision:
You and your owners agree that all actions arising un-
der this Agreement or otherwise as a result of the re-
lationship between you and us must be commenced
in a state or federal court of competent jurisdiction
within such state or judicial district in which we have
our principal place of business at the time the action
is commenced, and you (and each owner) irrevocably
submit to the jurisdiction of those courts and waive
any objection you (or the owner) might have to either
the jurisdiction of or venue in those courts.
Id. at 26 (emphasis added). This is known as a “floating” forum-
selection clause because it ties the chosen forum to a mutable
fact—here, the franchisor’s principal place of business. See Dale
Joseph Gilsinger, Enforceability of Floating Forum Selection
Clauses, 39 A.L.R.6th 629 § 2 (2008) (“A ‘floating’ forum selection
clause is defined as a clause which, rather than designating a forum
by immutable geographical place name, designates the exclusive
forum for all litigation regarding the agreement . . . by reference to
mutable facts . . . .”).
When the parties’ relationship soured, Purugganan threat-
ened to sue AFC in either Connecticut or New York. AFC believed
that the floating forum-selection clause required Purugganan to
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4 Opinion of the Court 20-13849
sue in Alabama, where AFC had its principal place of business. It
thus sought a declaratory judgment in Alabama state court (1) that
the parties had to litigate their dispute in Alabama and (2) that AFC
hadn’t breached the Master Developer Agreement.
Purugganan removed the action to the United States District
Court for the Northern District of Alabama, and the parties agreed
to have the case decided by a magistrate judge. See 28 U.S.C.
§ 636(c). Purugganan then moved to dismiss for lack of personal
jurisdiction and improper venue. In the alternative, Purugganan
asked the magistrate judge—who, given the parties’ consent, acted
on behalf of the district court—to transfer this case to Connecticut,
where he has since sued AFC.
The district court sided with Purugganan on the personal-
jurisdiction issue. First, it concluded that Purugganan lacked “min-
imum contacts” with Alabama. Second, and more importantly for
present purposes, the court held that Purugganan hadn’t contrac-
tually waived his personal-jurisdiction defense by agreeing to the
forum-selection provision. Even though AFC took over as Doctors
Express’s assignee and had its principal place of business in Ala-
bama, the court reasoned, there was “no reference to assignees in
the Master Develop[er] Agreement’s forum selection clause.”
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20-13849 Opinion of the Court 5
Accordingly, the district court granted Purugganan’s motion to dis-
miss. AFC timely appealed. 1
II
We begin our analysis from a place of relative agreement
between the parties—what law to apply. We then turn to the mer-
its of the personal-jurisdiction dispute.
A
It is well settled that state law governs issues of contract in-
terpretation that arise in a diversity action. See, e.g., Fernandez v.
Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). Here,
the Master Developer Agreement provides that the contract and all
claims arising from it are “governed by the laws of the State of Mar-
yland.” Doc. 1-2 at 26. Neither party disputes the applicability of
that choice-of-law clause. So we will apply Maryland law in our
interpretation of the agreement.
The next question is whether state or federal law governs
the enforceability of the forum-selection clause. See Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 71 (1938). “When deciding to apply fed-
eral or state law to a forum selection clause, the context in which
the clause is asserted can be determinative.” Preferred Cap., Inc. v.
1 We review the dismissal of an action for lack of personal jurisdiction de novo.
See Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292 (11th Cir.
2021). The same goes for questions related to the interpretation and enforce-
ability of a forum-selection clause. See Rucker v. Oasis Legal Fin., L.L.C., 632
F.3d 1231, 1235 (11th Cir. 2011).
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6 Opinion of the Court 20-13849
Sarasota Kennel Club, Inc., 489 F.3d 303, 306 (6th Cir. 2007). For
instance, in a diversity action involving a transfer motion, “[c]on-
sideration of whether to enforce a forum selection clause . . . is
governed by federal law, under 28 U.S.C. § 1404(a).” P & S Bus.
Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003)
(per curiam). But at least in some cases in which a defendant moves
to dismiss for lack of personal jurisdiction, this Court has held that
“we must apply state law.” Alexander Proudfoot Co. World Head-
quarters L.P. v. Thayer, 877 F.2d 912, 918–19 (11th Cir. 1989).
We needn’t wade into these Erie waters today, as the parties
agree that Maryland law should apply, and Maryland has
“adopt[ed] the federal standard for analyzing the enforceability of
forum-selection clauses.” Peterson v. Evapco, Inc., 188 A.3d 210,
228 (Md. Ct. Spec. App. 2018) (citing Gilman v. Wheat, First Sec.,
Inc., 692 A.2d 454, 462–63 (Md. 1997)). 2 Thus, we “can apply state
and federal law harmoniously” to the enforceability issue at hand.
Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir.
2002).
B
That brings us to the heart of the parties’ dispute—whether
the exercise of personal jurisdiction over Purugganan would
2 Though we accept the parties’ agreement that we must apply Maryland
law—and its incorporation of the federal standard—we note that there is sim-
ilarly “no conflict between Alabama and federal law regarding the validity of
forum selection clauses.” Rucker, 632 F.3d at 1236.
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violate due process. 3 “Normally,” the Due Process Clause requires
us to “consider whether the defendant purposefully established
‘minimum contacts’ with the forum state.” Alexander Proudfoot,
877 F.2d at 921 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)). But “because the personal jurisdiction requirement is
a waivable right,” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 n.14 (1985), the normal “due process analysis is unnecessary
where a nonresident defendant has consented to suit in a forum,”
Alexander Proudfoot, 877 F.2d at 921. In that case, so long as a
forum-selection clause is applicable and “not ‘unreasonable and un-
just,’ [its] enforcement does not offend due process.” Burger King,
471 U.S. at 472 n.14 (citation omitted) (quoting The Bremen v. Za-
pata Off-Shore Co., 407 U.S. 1, 15 (1972)); see also Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991).
3 In most cases, we use a two-step approach to analyze personal-jurisdiction
issues. “First, we determine whether the exercise of jurisdiction is appropriate
under the forum state’s long-arm statute.” Mut. Serv. Ins. Co. v. Frit Indus.,
Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). “Second, we examine whether the
exercise of personal jurisdiction over the defendant would violate the Due
Process Clause.” Id. In this case, “the two inquiries merge, because Alabama’s
long-arm statute permits the exercise of personal jurisdiction to the fullest ex-
tent constitutionally permissible.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922,
925 (11th Cir. 2007).
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8 Opinion of the Court 20-13849
1
We start, then, by analyzing whether the floating forum-se-
lection clause applies to this dispute. Again, that provision provides
as follows:
You and your owners agree that all actions arising un-
der this Agreement or otherwise as a result of the re-
lationship between you and us must be commenced
in a state or federal court of competent jurisdiction
within such state or judicial district in which we have
our principal place of business at the time the action
is commenced, and you (and each owner) irrevocably
submit to the jurisdiction of those courts and waive
any objection you (or the owner) might have to either
the jurisdiction of or venue in those courts.
Doc. 1-2 at 26 (emphases added). Clearly, Purugganan waived ob-
jections to personal jurisdiction in the “state or judicial district,” to
use the contract’s language, “in which we have our principal place
of business at the time the action is commenced.” Who, though,
is the “we” and “our” in that phrase? That is the pivotal question.
Purugganan says that phrase refers to the principal place of
business of Doctors Express—and only Doctors Express—as the
original party to the Master Developer Agreement. AFC contends,
by contrast, that the phrase now refers to its principal place of busi-
ness because—as a valid assignee—it succeeded to all of Doctors
Express’s rights and obligations under the contract.
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We agree with AFC. The Master Developer Agreement ex-
plicitly authorizes Doctors Express to “assign th[e] Agreement . . .
to a third party without restriction.” Id. at 17. And under Maryland
law, when a contract “is transferred by assignment, the assignee
steps into the [assignor]’s shoes and acquires all the [assignor]’s
rights” under the contract. Italian Fisherman, Inc. v. Middlemas,
545 A.2d 1, 4 (Md. 1988) (emphasis added). That is, the “rights of
an assignee are concomitant to those of an assignor”—“no more,
no less.” Nationstar Mortg. LLC v. Kemp, 258 A.3d 296, 301 (Md.
2021) (quoting Univ. Sys. of Md. v. Mooney, 966 A.2d 418, 430 (Md.
2009)). Applying this principle, it seems to us that AFC (the as-
signee) holds the same right as Doctors Express (the assignor) to
litigate in the state or judicial district containing its principal place
of business—especially given that the Master Developer Agree-
ment contemplates an unrestricted right of assignment.
True, the contract indicates at the outset that it would use
the terms “we,” “us,” and “our” to refer to Doctors Express. See
Doc. 1-2 at 1 (“DOCTORS EXPRESS FRANCHISING, LLC, a Mar-
yland limited liability company, located at 8600 LaSalle Road, Suite
326, Towson, Maryland 21286 (‘we,’ ‘us,’ or ‘our’)”). But applying
a dose of common sense, we don’t think that parenthetical notation
was meant—and shouldn’t be understood—to limit the contractual
rights of Doctors Express’s assignees. See Credible Behav. Health,
Inc. v. Johnson, 220 A.3d 303, 313 (Md. 2019) (“As a bedrock prin-
ciple of contract interpretation, Maryland courts consistently strive
to interpret contracts in accordance with common sense.”
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10 Opinion of the Court 20-13849
(quotation marks omitted)). It was instead meant to clarify that the
shorthand uses of “we” and “our” refer to the franchisor generally,
as distinct from the terms “you” and “your,” which refer to the
master developer.
Basic interpretive principles confirm this common-sense
reading. Consider, first, the whole-text canon. “As with the inter-
pretation of a statute,” Maryland courts (and thus we) don’t con-
strue contractual “language in isolation, but consider[] that lan-
guage in relation to the entire contract.” Impac Mortg. Holdings,
Inc. v. Timm, 255 A.3d 89, 96 (Md. 2021); see also Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 167 (2012) (“The text must be construed as a whole.”). Here,
the Master Developer Agreement repeatedly uses the terms “we”
and “our” to define the rights and obligations of the franchisor. 4
4 See, e.g., Doc. 1-2 at 2 (“We will have the sole right to approve Prospects
. . . .”); id. (providing that, if the developer breaches the Master Developer
Schedule, “we have the right to terminate this Agreement” via written notice);
id. at 3 (“Provided that you are in compliance with the terms of this Agree-
ment, we will not grant another master developer the right to solicit Pro-
spects . . . in the Territory.”); id. at 7 (“For any Prospect that you refer to us
and with whom we sign a Franchise Agreement . . . we will pay to you fifty
percent (50%) of the Initial Franchise Fee . . . paid to us by that Prospect.”); id.
at 8 (“For each Franchisee . . . that you perform Service Responsibilities and
Monitoring Responsibilities for in the Territory, we will pay to you an amount
equal to two and one-half percent (2.5%) of such Franchisee’s Gross Sales
. . . .”); id. at 10 (“We will provide you a franchise marketing strategy . . . .”);
id. at 11 (“We will provide you with a description of how to perform the Ser-
vicing Responsibilities and Monitoring Responsibilities . . . .”); id. at 14 (“We
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And yet the parties knew—and all still agree—that the franchisor
could assign the agreement “without restriction.” So, if the parties
meant to ascribe some rights and obligations to Doctors Express
specifically and others to Doctors Express and its assignees more
generally, one would expect them to have used varying language
to that effect throughout the agreement—or, at the very least, to
have carved out certain rights explicitly. The Master Developer
Agreement did neither.
That brings us to another interpretive canon: Words “used
by the parties in one sense will be given the same meaning through-
out the contract in the absence of countervailing reasons.” 11 Wil-
liston on Contracts § 32:6 (4th ed., May 2022 Update); see also
Leadroot v. Leadroot, 810 A.2d 526, 532 (Md. Ct. Spec. App. 2002);
Scalia & Garner, supra, at 170 (“A word or phrase is presumed to
bear the same meaning throughout a text . . . .”). Neither Purug-
ganan nor the district court offers any good reason why the terms
“we” and “our” would mean something different in the forum-se-
lection clause than in other parts of the Master Developer Agree-
ment. And once we attribute identical meaning to those words
throughout the contract, Purugganan’s position proves too much.
He insists that “we” and “our” “can be interpreted only as referring
agree to reimburse you for all damages and expenses that you incur in any
trademark infringement proceeding . . . .”); id. at 17 (“We may change our
ownership or form and/or assign this Agreement . . . to a third party without
restriction.”); id. at 25 (“Before you and we may bring an action in court
against the other, you and we must first meet to mediate the dispute . . . .”).
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12 Opinion of the Court 20-13849
to Doctors Express.” Br. of Appellee at 15. But as just explained,
the Master Developer Agreement employs those shorthand terms
to delineate the parties’ ongoing rights and obligations. Accord-
ingly, Purugganan’s proposed interpretation would deprive the as-
signment—which again, the contract explicitly authorized—of
meaningful effect. That can’t be what the parties intended. Rather,
by accepting assignment of the Master Developer Agreement, AFC
“step[ped] into the shoes of its assignor” and became the “we” and
“our” referenced throughout the contract. Nationstar, 258 A.3d at
309; see also, e.g., Midland Funding, LLC v. Briesmeister, 640
S.W.3d 672, 682–85 (Ark. Ct. App. 2022) (concluding that “we,”
“us,” and “our” included assignees for purposes of an arbitration
clause even though the contract used those terms to reference the
assignor).
Purugganan raises three counterarguments—none of which
persuades us. First, he invokes language from one of our cases stat-
ing that a forum-selection clause “is viewed as a separate contract.”
Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1238 (11th Cir.
2011). To the extent that Purugganan reads this language as con-
straining us from looking to other provisions of the Master Devel-
oper Agreement for assistance in discerning the meaning of “we”
and “our” in the forum-selection clause, he is incorrect. The sev-
erability of a forum-selection clause doesn’t alter the basic rule of
construction that “[a] writing is interpreted as a whole, and all writ-
ings that are part of the same transaction are interpreted together.”
Restatement (Second) of Contracts § 202(2) (Am. Law. Inst. 1981);
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see also Rocks v. Brosius, 217 A.2d 531, 545 (Md. 1966) (similar).
Nothing in our decision in Rucker suggests otherwise. Rucker
stands for the more modest proposition that a forum-selection
clause isn’t automatically rendered unenforceable if one of the par-
ties claims that the contract of which it is part is void or voidable
due to fraud, illegality, etc. See 632 F.3d at 1238. In that circum-
stance, the parties must litigate the voidness issue in the forum they
have chosen to resolve their disputes—that is, unless the forum-
selection clause is itself unenforceable. See id.To the extent that Purugganan instead means, by his citation
to Rucker, to argue that the forum-selection clause is a separate
agreement that can’t be assigned along with the main contract, we
disagree. It is part of the assignable Master Developer Agreement,
even if the provision could be “sever[ed]” upon an allegation that
the contract is void. Id. Further, we note that even if we were to
read Rucker as broadly as Purugganan appears to, it wouldn’t nec-
essarily help him; the Master Developer Agreement, after all, pro-
vides that Doctors Express could “assign th[e] Agreement and any
other agreement to a third party without restriction.” Doc. 1-2 at
17 (emphasis added).
Second, Purugganan relies on a provision in the Master De-
veloper Agreement stating that “nothing in th[e] Agreement is in-
tended or deemed to confer any rights upon any person or legal
entity not a party to th[e] Agreement.” Id. at 27. From that, he
argues that only Doctors Express has the right to enforce the fo-
rum-selection clause. This argument is likewise unavailing. To be
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14 Opinion of the Court 20-13849
sure, the quoted provision helped to clarify that there were no in-
tended third-party beneficiaries when the agreement was executed.
But recall that the contract also expressly contemplated assignment
by Doctors Express, and thus that its assignees could obtain rights
in the future. Simply put, then, the specific provision authorizing
the transfer of rights by assignment trumps the general no-third-
party-beneficiaries clause. See Fed. Ins. Co. v. Allstate Ins. Co., 341
A.2d 399, 407 (Md. 1975) (“Where two clauses or parts of a written
agreement are apparently in conflict, and one is general in charac-
ter and the other is specific, the specific stipulation will take prece-
dence over the general, and control it.”).
Finally, Purugganan asserts that the contract should be con-
strued against AFC as the assignee of the drafter. But the rule of
contra proferentum “applies ‘only as a last resort’ when the mean-
ing of a provision remains ambiguous after exhausting the ordinary
methods of interpretation.” Lamps Plus, Inc. v. Varela, 139 S. Ct.
1407, 1417 (2019) (quoting 3 Corbin on Contracts § 559 (1960)). For
the reasons already explained, we don’t think that the floating fo-
rum-selection clause here is ambiguous once it is understood in its
proper context. See, e.g., Credible Behav. Health, 220 A.3d at 314.
We therefore conclude that the forum-selection clause is ap-
plicable to this suit in the Northern District of Alabama, where AFC
has its principal place of business.
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2
Having determined that this suit falls within the scope of the
forum-selection clause, the question then becomes whether the
clause is enforceable. We hold that it is.
Where a forum-selection clause would otherwise apply, the
party resisting it has the burden of demonstrating—by “a strong
showing”—that enforcement would be “unfair or unreasonable
under the circumstances.” Don’t Look Media, LLC v. Fly Victor
Ltd., 999 F.3d 1284, 1297 (11th Cir. 2021) (quotation omitted). That
is no easy task. To satisfy his burden, the party resisting enforce-
ment must show that (1) the clause “was induced by fraud or over-
reaching; (2) [he] would be deprived of [his] day in court because
of inconvenience or unfairness; (3) the chosen law would deprive
[him] of a remedy; or (4) enforcement of the clause would contra-
vene public policy.” Id. (quotation omitted); accord Gilman, 692
A.2d at 463. Absent one of those circumstances, a court should en-
force the forum-selection clause according to its terms. “Freedom
of contract requires no less.” IFC Credit Corp. v. Aliano Bros. Gen.
Contractors, Inc., 437 F.3d 606, 610 (7th Cir. 2006).
Purugganan hasn’t met his burden of showing that enforc-
ing the floating forum-selection clause here would be unreasonable
or unjust. To start, we see no fraud or overreaching. In making
this determination, “we look to whether the [forum-selection]
clause was reasonably communicated.” Krenkel v. Kerzner Int’l
Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (per curiam). This
Court’s “two-part test of ‘reasonable communicativeness’ takes
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16 Opinion of the Court 20-13849
into account the clause’s physical characteristics and whether the
[resisting party] had the ability to become meaningfully informed
of the clause and to reject its terms.” Id. Purugganan doesn’t com-
plain about the clause’s physical characteristics. And as already ex-
plained, when read in context, the clause unambiguously extends
to assignees. Thus, we believe that the contract’s express reference
to the franchisor’s broad right of assignment gave Purugganan—a
businessman who acknowledged that he had “read th[e] agree-
ment” and was “afforded an opportunity” both to “ask any ques-
tions” and to have the agreement “reviewed by an attorney,” Doc.
1-2 at 34–35—the ability to meaningfully inform himself about the
forum-selection clause’s scope. So even if we construe Purug-
ganan’s arguments to suggest fraud or overreaching, they don’t
render the clause unenforceable.
There is also no indication that Alabama is so unfair or in-
convenient a forum as to effectively deprive Purugganan, a New
York resident, of a remedy or his day in court. See Shute, 499 U.S.
at 594–95 (enforcing forum-selection clause in an adhesion contract
that required cruise-ship passengers from Washington State to liti-
gate their dispute in Florida). 5
5 To be clear, we don’t hold that a floating forum-selection clause could never
be unreasonable or unenforceable. This might be a different case if the agree-
ment required Purugganan to litigate his “essentially local disputes in a remote
alien forum.” The Bremen, 407 U.S. at 17. But we’re talking about Alabama,
not Albania. And Purugganan appears to be a relatively sophisticated
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20-13849 Opinion of the Court 17
Nor has Purugganan identified any public policy that would
be frustrated by enforcement. In fact, enforcing this forum-selec-
tion clause furthers a fundamental policy of contract law—that par-
ties are generally free to structure their affairs through legally bind-
ing promises. See, e.g., 15 Corbin on Contracts § 79.4 (2022); The
Bremen, 407 U.S. at 11. And even beyond respecting the parties’
rights to structure their affairs, there are good reasons to enforce
an assignable, floating forum-selection clause. Most notably, “pub-
lic policy supports the enforcement of the forum selection clause
to allow for the marketability” of the commercial agreement. Lib-
erty Bank, F.S.B. v. Best Litho, Inc., 737 N.W.2d 312, 317 (Iowa Ct.
App. 2007). If courts refuse to enforce such provisions, “assignors
[will] have to compensate their assignees for having to litigate in an
inconvenient forum.” IFC Credit Corp., 437 F.3d at 613. In turn,
“they will have to charge a higher price to their customers” and
contractual partners. Id.; see also Shute, 499 U.S. at 594.
Purugganan counters that “Alabama was not contemplated
as a possible forum for this dispute because Doctors Express was
not located there.”6 Br. of Appellee at 15. We have no reason to
businessman, investing $189,000 to become the master developer for his terri-
tory. Those considerations further weigh against us holding that enforcement
would be unreasonable in these circumstances.
6At oral argument, Purugganan retreated somewhat from this position, ad-
mitting that Doctors Express could have moved to another state—like Ala-
bama—and enforced the forum-selection clause there. See Oral Arg. at 18:13–
19:06. Even so, he maintained that Doctors Express’s successors or assigns
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18 Opinion of the Court 20-13849
doubt that Purugganan didn’t specifically imagine litigating in Ala-
bama when he signed the Master Developer Agreement. But that
frames the issue too narrowly. After all, Purugganan knew that the
litigation forum could change over the 15-year life of this contract.
He likewise knew that the bargained-for forum would depend on
the location of the franchisor’s principal place of business “at the
time the action is commenced.” And he knew that the franchisor
could assign its rights and obligations under the agreement “to a
third party without restriction.” These provisions provide “ample
notice that the agreement[] could be assigned” and that Purug-
ganan might have to litigate in a different forum—including, po-
tentially, Alabama. Liberty Bank, 737 N.W.2d at 316. While he
“may be dissatisfied with the litigation forum, it is not our task to
save [him] from the consequences of an agreement [he] freely en-
tered into.” Preferred Cap., Inc. v. Assocs. in Urology, 453 F.3d
718, 724 (6th Cir. 2006).
* * *
In sum, the district court erred in dismissing for lack of per-
sonal jurisdiction. By voluntarily agreeing to an applicable and en-
forceable floating forum-selection clause, Purugganan waived his
right to contest personal jurisdiction in this dispute.
couldn’t do the same. As explained in text, we disagree with the distinction
that Purugganan seeks to draw.
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20-13849 Opinion of the Court 19
III
It follows from what we have said that Purugganan also
waived any objections to venue. 7 For the reasons already ex-
plained, Purugganan agreed to litigate in the “state or judicial dis-
trict in which we”—which we have held includes AFC—“ha[d]
our”—which we have held includes AFC’s—“principal place of
business at the time th[is] action [was] commenced.” So too, he
agreed to “waive any objection” to “venue” in those courts. At the
time of filing, AFC had its principal place of business in Shelby
County, which is in the Northern District of Alabama. See 28
U.S.C. § 81(a)(3). And that settles the venue issue. Because the
forum-selection clause is both applicable and enforceable here,
Purugganan can’t raise his venue objection now. See Peterson v.
BMI Refractories, 124 F.3d 1386, 1391 (11th Cir. 1997) (“As with
other procedural defects, parties can waive venue requirements.”).
In response, Purugganan offers no reason why he might
have consented to personal jurisdiction but not venue. Instead, he
submits that AFC “[forfeited] its venue argument, which does not
appear in its opening brief.” Br. of Appellee at 30. That is incor-
rect—AFC’s brief “specifically and clearly identified” the venue is-
sue. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004). AFC framed the issue statement in its brief as “whether
7The district court didn’t address venue, so normally we wouldn’t either.
That said, because the venue issue rises or falls, as a matter of law, with the
personal-jurisdiction issue, we see no reason to delay its resolution.
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 20 of 36
20 Opinion of the Court 20-13849
consent to personal jurisdiction and venue” was established by the
forum-selection clause. Br. of Appellant at 1 (emphasis added). It
then devoted three of the argument’s nine pages to venue, under a
subject heading that specifically referenced the topic. See id. at 14–
16. Finally, AFC closed its brief by asking us to hold that Purug-
ganan “has consented to venue in Alabama,” in addition to “re-
vers[ing] the district court’s judgment of dismissal” for lack of per-
sonal jurisdiction. Id. at 17. Taken together, that was more than
enough to preserve the venue issue.
* * *
We REVERSE and REMAND for further proceedings con-
sistent with this opinion.
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 21 of 36
20-13849 TJOFLAT, J., Concurring 1
TJOFLAT, Circuit Judge, Concurring:
I concur because I agree the forum selection clause provides
the Northern District of Alabama with personal jurisdiction over
Purugganan. I write separately to demonstrate the futility and in-
efficiency of seeking a declaration on the meaning of a forum selec-
tion clause when, as here, a parallel proceeding in another court is
either imminent or ongoing. To make this demonstration, I first
lay out the relevant facts and decisions from the ongoing parallel
proceedings in the United States District Court for the District of
Connecticut. With that in mind, I then explain why our decision
today will have no impact on the Connecticut District Court’s de-
cision-making. Finally, I close with a discussion on the foolishness
of this sort of anticipatory litigation.
I.
As the Majority opinion recounts, Doctors Express Franchis-
ing and Danilo Purugganan entered into a Master Developer
Agreement (“MDA”) in 2009 that contained a floating forum selec-
tion clause. Maj. Op. at 2–3. Four years later, Doctors Express as-
signed its rights under the MDA to AFC Franchising and notified
Purugganan of this assignment. Id. at 2. Eventually, AFC and
Purugganan’s relationship “soured” and Purugganan notified AFC
of his intent to sue in either Connecticut or New York. Id. at 3. In
response, AFC filed this declaratory judgment action in the Circuit
Court of Shelby County, Alabama, on March 6, 2020, seeking a dec-
laration that “the forum selection clause requires that any litigation
be conducted in Alabama.” Purugganan then removed the suit to
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 22 of 36
2 TJOFLAT J., Concurring 20-13849
the Northern District of Alabama on April 2, 2020, 1 and there asked
the District Court to either dismiss the case for lack of personal ju-
risdiction and improper venue or to transfer the case to the District
of Connecticut. Id. at 4. The Northern District of Alabama granted
the motion to dismiss the case for lack of personal jurisdiction and
AFC appealed, resulting in our decision above. Id. at 4–5.
But while this suit was ongoing, the parties have litigated
this exact same issue three different times in the District of Con-
necticut. 2 On March 17, 2020, eleven days after AFC filed this suit
in Shelby County, Purugganan filed suit against AFC in the District
of Connecticut, just as he told AFC he would. In his complaint,
1 AFC also sought a declaration that the limited exclusivity clause of the MDA
allows AFC “to develop company-owned franchises in the territory embraced
by the Master Development Agreement.” This second claim is what enabled
Purugganan to meet 28 U.S.C. § 1332(a)’s $75,000 amount in controversy re-
quirement for diversity jurisdiction. See Federated Mut. Ins. Co. v. McKinnon
Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (explaining that plaintiffs seek-
ing declaratory relief under diversity jurisdiction must claim that the amount
in controversy exceeds $75,000). Likewise, this second claim also forms the
basis of AFC’s standing, as we must decide whether the Northern District of
Alabama has personal jurisdiction over Purugganan before AFC can pursue its
second claim against him.
2 As neither party put into evidence their filings in the District of Connecticut,
I take judicial notice of that Court’s docket. See Rothenberg v. Sec. Mgmt.
Co., Inc., 667 F.2d 958, 961 n.8 (11th Cir. 1982) (“Normally, an appellate court
will not consider facts that were not presented to the district court. We are,
however, free to take judicial notice of subsequent developments in cases that
are a matter of public record and are relevant to the appeal.” (citations omit-
ted)).
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 23 of 36
20-13849 TJOFLAT, J., Concurring 3
Purugganan sought (among other claims) a declaration that the
MDA does not permit suit in Alabama and/or that the MDA’s float-
ing forum selection clause is unenforceable. Predictably, AFC re-
sponded on April 9, 2020, by moving to dismiss the case for im-
proper venue based on the forum selection clause under Fed. R.
Civ. P. 12(b)(3). 3
The Connecticut District Court analyzed AFC’s motion to
dismiss under the Second Circuit’s four step test for determining
whether a forum selection clause is valid and enforceable. Purug-
ganan v. AFC Franchising, LLC (“Purugganan I”), No. 3:20-CV-
00360(KAD), 2020 WL 2494718, at *2 (D. Conn. May 13, 2020) (cit-
ing Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019)). Under this
test,
a district court must consider three factors in deter-
mining whether the presumption of enforceability
applies to a forum selection clause: whether (1) the
clause was reasonably communicated to the party re-
sisting its enforcement; (2) the clause is mandatory or
permissive; and (3) the claims and parties to the dis-
pute are subject to the clause.
3As the Connecticut District Court correctly noted, Fed. R. Civ. P. 12(b)(3)
was the incorrect vehicle for enforcing the forum selection clause as venue
was proper in Connecticut. AFC Franchising, LLC (“Purugganan I”), No.
3:20-CV-00360(KAD), 2020 WL 2494718, at *1 (D. Conn. May 13, 2020) (citing
Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Instead, the
Court construed AFC’s Rule 12(b)(3) motion as a motion to dismiss under the
doctrine of forum non conveniens. Id.USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 24 of 36
4 TJOFLAT J., Concurring 20-13849
Id. (quoting Fasano, 921 F.3d at 335). “Satisfaction of these factors
creates a presumption of enforceability, which can be overcome at
step four by ‘a sufficiently strong showing that enforcement would
be unreasonable or unjust, or that the clause was invalid for such
reasons as fraud or overreaching.’” Id. (quoting Martinez v.
Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Steps one and
four of this test concern the enforceability of the forum selection
clause and is governed by federal law, while steps two and three
concern the interpretation of the clause and is governed by state
contract law. See Martinez, 740 F.3d at 217–18.
Applying this test, the Connecticut District Court “an-
swer[ed] the inquiry at both steps one and three in the negative and
therefore [held that] the clause does not enjoy the presumption of
enforceability.” Purugganan I, 2020 WL 2494718, at *3. To start
with, the Connecticut Court interpreted the forum selection clause
as only applying to Doctors Express and not its assignees using es-
sentially the same reasoning that Purugganan put forth here. Com-
pare id. and Maj. Op. at 8–14. Consequently, the Court held that
“interpreting the MDA’s forum selection clause as providing ade-
quate notice to the Plaintiff that he might have to litigate in the
forum of the principal place of business of some future, unknown
assignee of Doctors Express is simply a bridge too far . . . .” Purug-
ganan I, 2020 WL 2494718, at *4. Similarly, the Court found that
“AFC’s enforcement of the forum selection clause was not, in any
way, foreseeable to Purugganan” and thus AFC was not “closely
related” enough to Purugganan to enforce the forum selection
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 25 of 36
20-13849 TJOFLAT, J., Concurring 5
clause against Purugganan under step three. Id. (citing Magi XXI,
Inc. v. Stato della Citta del Vaticano, 714 F.3d 722–23 (2d Cir.
2013)). Finally, the Court concluded that it would “decline to en-
force the forum selection clause at step four of the analysis” even if
the forum selection clause was entitled to a presumption of en-
forceability under Second Circuit precedent. Id.After the Connecticut District Court denied AFC’s motion
to dismiss, AFC moved for reconsideration. Purugganan v. AFC
Franchising, LLC (“Purugganan II”), No. 3:20-cv-00360 (KAD),
2020 WL 3000761, at *1 (D. Conn. June 4, 2020). In deciding that
motion, the Connecticut District Court made its views on the fo-
rum selection clause even plainer:
[E]ven considering these arguments anew, the Court
remains unpersuaded that the MDA’s forum selection
clause requires that this suit be litigated in Alabama.
Indeed, perhaps the only analytical point that the
Court might clarify from its prior memorandum of
decision is that, in the Court’s view, this is not a close
call. What AFC asks this Court to do—apply a float-
ing forum selection clause to a future, unknown and
unidentified assignee of a contracting party absent ex-
press language extending the forum selection provi-
sion to that party’s assignee or successor-in-interest—
reaches so far beyond the available case law uphold-
ing floating forum selection clauses that even if the
cases AFC cites were binding on the Court (which
they are not), the Court would still find them
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 26 of 36
6 TJOFLAT J., Concurring 20-13849
distinguishable for the very reasons articulated in its
previous memorandum of decision.
Id. at *2. Notably, the Court also stated that
[E]ven if the Court were to stretch so far as to find the
forum selection clause reasonably communicated to
Purugganan and reasonably foreseeable with respect
to its enforcement by AFC, federal common law per-
mits the Court to decline to enforce a forum selection
clause when to do so would create an injustice and
contravene the policies otherwise favoring enforce-
ment . . . . In short, to enforce the forum selection
clause in these circumstances would be to promote
the epitome of uncertainty—blindsiding the Plaintiff
with an obligation to litigate in Alabama—a forum
completely inscrutable from the text of the con-
tract. Cf. Jig Third Corp. v. Puritan Marine Ins. Un-
derwriters Corp., 519 F.2d 171, 179 (5th Cir.
1975) (“One can buy a pig in a poke, but only if the
parties fashion their contract and compound their
words with the pig’s possible infirmities in mind.”).
Id. at *3.
On top of its motion to dismiss and the subsequent motion
for reconsideration, AFC also counterclaimed in its answer for a
declaration that the proper venue under the forum selection clause
is Alabama. Purugganan v. AFC Franchising, LLC (“Purugganan
III”), No. 3:20-CV-00360 (KAD), 2021 WL 5301522, at *2 (D. Conn.
Nov. 15, 2021). In response, Purugganan moved for a judgment on
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 27 of 36
20-13849 TJOFLAT, J., Concurring 7
the pleadings dismissing this counterclaim based on the Connecti-
cut District Court’s prior decisions, leading to the parties litigating
the forum selection clause for the third time in the District of Con-
necticut. Id. at *1. Unsurprisingly, the Connecticut District Court
granted Purugganan’s motion for judgment on the pleadings in rel-
evant part. Id. at *2–3.
As a result of these decisions, the parties have now been liti-
gating their claims in the District of Connecticut for almost two
and a half years. In that time, the parties have engaged in extensive
motion practice, including motions for temporary restraining or-
ders and preliminary injunctions, as well as several court-ordered
settlement negotiations. As of this writing, the Connecticut Dis-
trict Court is considering a partial motion for summary judgment
argued last April. In short, both the parties and the Connecticut
District Court have already invested a great deal of time and effort
into litigating in Connecticut.
II.
Our decision today will return this case to the Northern Dis-
trict of Alabama. On remand, the District Court will require
Purugganan to answer AFC’s complaint, and the parties will then
proceed to litigate the case. Should that Court see fit to enter a
declaratory judgment about the validity of the forum selection
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 28 of 36
8 TJOFLAT J., Concurring 20-13849
clause, 4 then and only then may AFC argue in the District of Con-
necticut that the forum selection clause issue is precluded by the
Northern District of Alabama’s decision. 5
4 The Supreme Court has made “clear that district courts possess discretion in
determining whether and when to entertain an action under the Declaratory
Judgment Act, even when the suit otherwise satisfies subject matter jurisdic-
tional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct.
2137, 2140 (1995). This may well be a case where the “district court, in the
sound exercise of its judgment, determines after a complaint is filed that a de-
claratory judgment will serve no useful purpose.” Id. at 288, 115 S. Ct. at 2143.
After all, “declaratory judgment actions are equitable in nature.” Manuel v.
Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). So, the District Court
would consider all relevant equitable factors, including whether AFC already
has an adequate remedy at law in the District of Connecticut and whether it
is proper for a district court in Alabama to decide an issue before the District
of Connecticut.
Another consideration would be the first-filed rule. Typically, the first-
filed rule would favor having the Northern District of Alabama decide this de-
claratory judgment action absent compelling circumstances. Id. However,
“[i]n determining whether compelling circumstances exist, we have recog-
nized that for declaratory judgment actions ‘one equitable consideration . . . is
whether the . . . action was filed in apparent anticipation of the other pending
proceeding.’” Id. (quoting Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.3d
1194, 1195 (11th Cir. 1982)). And we have explicitly held that district courts
do not abuse their discretion when “dismiss[ing] a declaratory judgment ac-
tion . . . filed in apparent anticipation of another proceeding.” Id. at 1137.
5 Of course, AFC may run to the District of Connecticut as soon as this opinion
is published and erroneously argue that we have decided the forum selection
clause issue for the Connecticut District Court with this opinion. See Purug-
ganan III, 2021 WL 5301522, at *2 n.3 (“As the court has previously indicated,
if the Eleventh Circuit Court of Appeals determines that the forum selection
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 29 of 36
20-13849 TJOFLAT, J., Concurring 9
So, unfortunately for AFC, our decision today will have no
binding effect on the Connecticut District Court. All we decide is
that the Northern District of Alabama has personal jurisdiction
over Purugganan in this declaratory judgment action. What’s
more, AFC’s self-inflicted legal woes will continue even if the
Northern District of Alabama does grant AFC the declaratory relief
it seeks. Should the Northern District of Alabama grant declara-
tory relief and declare the forum selection clause valid, the Con-
necticut District Court will then have to independently determine
(after AFC amends it answer to plead issue preclusion) whether (1)
to give that decision preclusive effect under the Second Circuit’s
issue preclusion test, (2) if so, whether the forum selection clause
is enforceable under Second Circuit precedent, not Eleventh Cir-
cuit precedent, under the circumstances presented in Connecticut,
and (3) if so, whether the Connecticut District Court should exer-
cise its discretion (considering the time already invested in Con-
necticut) to transfer the case under 28 U.S.C. § 1404(a) or dismiss
under the doctrine of forums non conveniens. Then, any decision
the Connecticut District Court makes will be reviewed by the
clause is enforceable by AFC against Purugganan, then this Court will likely
honor that determination, regardless the Court's own differing opinion.”).
However, all we decide today is whether the Northern District of Alabama
has personal jurisdiction over Purugganan, i.e., that Purugganan is present in
Alabama. The Northern District of Alabama, not the Eleventh Circuit, must
decide whether to issue a declaratory judgment that AFC could then use
against Purugganan in the District of Connecticut. Then, the Connecticut Dis-
trict Court would have to perform the full analysis that I outline here.
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 30 of 36
10 TJOFLAT J., Concurring 20-13849
Second Circuit, either through an appeal from final judgment or an
interlocutory appeal.
Let’s take this analysis step-by-step. To start with, issue pre-
clusion “operate[s] across a two-lawsuit continuum.” Graham v.
R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1214 (11th Cir. 2017) (en
banc) (Tjoflat, J., dissenting). As I have previously explained,
First, parties litigate a dispute to a final judgment on
the merits. Second, in a later, separate suit between
the parties, one party brings to court evidence of an
earlier judgment and contends that issue . . . preclu-
sion should apply to prevent her opponent from liti-
gating a previously decided issue . . . . In this two-
lawsuit scheme, the first court is the “rendering”
court and the second is the “recognizing” court.
Id. at 1214–15 (Tjoflat, J., dissenting). If the Northern District of
Alabama grants declaratory relief, then it would be the rendering
court and the Connecticut District Court would be the recognizing
court. So, before giving the declaratory judgment preclusive effect,
the Connecticut District Court would have a duty to review the
record created in the Northern District of Alabama and then to an-
alyze the judgment under the Second Circuit’s issue preclusion
test, including whether the issue before the District of Connecticut
was actually litigated 6 in the Northern District of Alabama. See
6Iemphasize the “actually litigated” part of the issue preclusion test because I
doubt the parties will actually litigate in the Northern District of Alabama the
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 31 of 36
20-13849 TJOFLAT, J., Concurring 11
CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 77
(2d Cir. 2017) (“Issue Preclusion is permissible as to a given is-
sue if: (1) the identical issue was raised in a previous proceeding; (2)
the issue was actually litigated and decided in the previous pro-
ceeding [by the rendering court]; (3) the party had a full and fair
opportunity to litigate the issue; (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits; and
(5) application of the doctrine is fair.” (alterations omitted)). Fur-
ther, the Northern District of Alabama (and this Court) cannot de-
cide what preclusive effect, if any, a declaratory judgment would
have in the District of Connecticut. Graham, 857 F.3d at 1192
(Tjoflat, J., dissenting) (“Courts tasked with determining whether
to enforce a rendering court’s judgment make those determina-
tions themselves.”).
Should the Connecticut District Court find that the North-
ern District of Alabama’s declaratory judgment ought to be given
some preclusive effect, it would still need to independently
identical issue that the District of Connecticut will have to consider. To “ac-
tually litigate” the Connecticut District Court’s issue, the Northern District of
Alabama would need the whole ball of wax from the Connecticut case. At the
least, this would include all the relevant evidence from the District of Con-
necticut and consideration of the circumstances presented in Connecticut at
the time of the Northern District of Alabama’s judgment. The District (or in
this case, Magistrate) Judge for the Northern District of Alabama would essen-
tially have to pretend he was designated to sit in the District of Connecticut to
hear this case. Considering the advanced stage of the Connecticut litigation,
the Northern District of Alabama may well be better off simply refusing to
grant declaratory judgment.
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 32 of 36
12 TJOFLAT J., Concurring 20-13849
determine whether to enforce the forum selection clause in the cir-
cumstances before it under Second Circuit precedent, not Eleventh
Circuit precedent. Indeed, the Second Circuit’s test appears to be
materially different from this Court’s test. Our Court simply de-
cides whether the forum selection clause applies as a matter of con-
tract interpretation and then whether “enforcement would be ‘un-
fair or unreasonable under the circumstances.’” Maj. Op. at 15
(quoting Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284,
1297 (11th Cir. 2021)). By contrast, the Second Circuit has a three-
step test for determining whether a forum selection clause is “pre-
sumptively enforceable,” and then an additional step where courts
decide whether the presumption can be overcome by “making a
sufficiently strong showing that enforcement would be unreasona-
ble or unjust, or that the clause was invalid for such reasons as fraud
or overreaching.” Martinez, 740 F.3d at 217 (quoting Phillips v.
Audio Active Ltd., 494 F.3d 378, 383–84 (2d Cir. 2007)). In Purug-
ganan I and II, the Connecticut District Court declined to enforce
the forum selection clause under steps one, three, and four of the
Second Circuit test as it has been interpreted by Second Circuit
caselaw, and there is nothing stopping the Connecticut District
Court from doing so again even if it accepts the Northern District
of Alabama’s potential future declaratory judgment as preclusive.
Further, even if the Connecticut District Court decides the
forum selection clause is enforceable under Second Circuit prece-
dent, it would still have to independently decide whether to trans-
fer or dismiss the case under the public interest factors. As the
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 33 of 36
20-13849 TJOFLAT, J., Concurring 13
Supreme Court explained in Atlantic Marine, the effect of a valid
and enforceable forum selection clause is that all the private factors
under § 1404(a) and the doctrine of forum non conveniens “weigh
in favor of the transfer” or dismissal. Atl. Marine Const. Co. v. U.S.
Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 67, 134 S. Ct. 568, 584
(2013). Thus, Purugganan would have to show that the “public-
interest factors overwhelmingly disfavor a transfer” to defeat a §
1404(a) motion. Id. But Purugganan could, theoretically, make
such a showing, and doing so would also allow the Connecticut
District Court to refuse to enforce the forum selection clause.
Finally, whatever decision the Connecticut District Court
makes will inevitably be reviewed by the Second Circuit. Should
the Connecticut District Court refuse to enforce the forum selec-
tion clause (for whatever reason), the case will proceed in Connect-
icut as normal and its decision will be reviewable on appeal from
final judgment. Should the Connecticut District Court dismiss the
case under the doctrine of forums non conveniens, then its decision
will also be immediately reviewable by the Second Circuit. Even
if the Connecticut District Court decides to transfer the case to an
Alabama district court under § 1404(a), Purugganan could still seek
review in the Second Circuit by petitioning for a writ of manda-
mus. Golconda Min. Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir.
1966) (“A petition for mandamus rather than a request for leave to
appeal under 28 U.S.C. § 1292(b) is the proper procedure to seek
review of a trial court’s disposition of a § 1404(a) motion, chal-
lenged for abuse of discretion.”). Either way, the Second Circuit
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 34 of 36
14 TJOFLAT J., Concurring 20-13849
will ultimately have the final say on whether to enforce the forum
selection clause, not this Circuit.7
III.
The MDA’s forum selection clause has now been litigated
five times: three times in the District of Connecticut, once in the
Northern District of Alabama, and once in the Eleventh Circuit.
Before this litigation is over, this issue could easily be litigated four
times more: (1) in the Northern District of Alabama on remand
from this appeal, (2) again in the Eleventh Circuit once the North-
ern District of Alabama makes its decision, (3) again in the District
of Connecticut following the Northern District of Alabama’s deci-
sion, and (4) finally, in the Second Circuit. Obviously, this is not
how the American legal system is supposed to work. In the typical
case, important issues are litigated twice, not nine times. AFC’s
atypical litigation strategy has thus cost itself, Purugganan, and the
federal judicial system a great deal of time and money for little to
no benefit.
Imagine if AFC had conducted this litigation in a sensible
manner. Once Purugganan informed AFC of his intention to sue
in Connecticut or New York, a wise lawyer would have realized
that AFC must litigate the forum selection clause in whatever court
Purugganan filed in regardless of any declaratory judgment action
AFC might file in Alabama. So, instead of filing this suit in
7 Unless, of course, the Supreme Court decides to grant certiorari.
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 35 of 36
20-13849 TJOFLAT, J., Concurring 15
Alabama, the wise lawyer would have simply prepared his argu-
ments under the forum selection clause and allowed Purugganan
to file suit wherever he wished, as is his right as the real plaintiff in
this litigation. Then, once Purugganan filed his suit in the District
of Connecticut, AFC could have moved for transfer or dismissal
based on the forum selection clause and petitioned for a writ of
mandamus from the Second Circuit had the Connecticut District
Court still denied AFC’s motion. This course of action would have
resolved the forum selection clause issue in a timely and efficient
manner.
More importantly, AFC’s litigation strategy has detrimental
impacts on the federal judicial system beyond mere inefficiency. It
is not the job of the Northern District of Alabama or the Eleventh
Circuit to decide whether the District of Connecticut should apply
the MDA’s forum selection clause and transfer Purugganan’s ac-
tion to Alabama. That responsibility lies solely with the District of
Connecticut and the Second Circuit. Attempting to use a declara-
tory judgment action to have a district or circuit court “grade the
papers” of a district court outside its circuit undermines respect for
the federal judiciary and pushes the boundaries of federal court ju-
risdiction. Indeed, our opinion today is about as close as a federal
court can get to issuing an advisory opinion without technically vi-
olating Article III of the U.S. Constitution.
I do not know how this litigation will ultimately be resolved.
Certainly, our decision today does little for the parties, the North-
ern District of Alabama, the Connecticut District Court, and the
USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 36 of 36
16 TJOFLAT J., Concurring 20-13849
Second Circuit. Hope, however, springs eternal, and perhaps fu-
ture litigants will be able to avoid the perils that AFC has inflicted
upon itself.