Fornaro v. RMC/Resource Management Co. , 201 F. App'x 783 ( 2006 )


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  •                  Not For Publication in West's Federal Reporter
    Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
    United States Court of Appeals
    For the First Circuit
    No. 04-2622
    REX FORNARO,
    Plaintiff, Appellant,
    v.
    RMC/RESOURCE MANAGEMENT COMPANY,
    Defendant, Appellee.
    ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    DISTRICT OF NEW HAMPSHIRE
    [Hon. Paul J. Barbadoro, U.S. District Judge]
    Before
    Selya, Lynch, and Howard, Circuit Judges.
    Rex Fornaro, on brief pro se.
    Eugene Sullivan, III, on brief                for   defendant,   appellee.
    October 6, 2006
    Per Curiam.     Rex Fornaro has appealed a district court
    judgment dismissing his complaint on the basis of a forum selection
    clause in a contract (hereinafter, the "Purchase Agreement").          "We
    review a district court's dismissal based on a forum-selection
    clause de novo."    Silva v. Encyclopedia Britannica, Inc., 
    239 F.3d 385
    , 387 (1st Cir. 2001).      Upon de novo review, we conclude that
    the motion to dismiss was properly granted and we affirm.1
    The forum selection clause stated, in relevant part:
    Both   parties   agree    that   New
    Hampshire law should, does, and will
    control the interpretation of this
    contract. The jurisdiction of any
    lawsuits related to or arising out
    of this contract will be in the
    courts of Carroll County, New
    Hampshire.
    On appeal, Fornaro argues that the district court mistakenly
    construed this forum selection clause as providing for exclusive
    jurisdiction in the state courts located in Carroll County, New
    Hampshire.   However, unlike the example described in Stafford
    Tech., Inc. v. Camcar Div. of Textron, Inc., 
    784 A.2d 1198
    , 1200-01
    (N.H. 2001), on which Fornaro relies, the clause at issue in the
    Purchase Agreement was not a simple permissive grant of authority
    to the courts of Carroll County.       Rather, the clause provided both
    jurisdictional     authority   and   venue.    It   stated   that   "[t]he
    1
    Our resolution of this appeal does not require us to resolve
    the request of Benjamin C. Riggs, Jr. that a sole proprietorship be
    substituted as the appellee.
    -2-
    jurisdiction of any lawsuits related to or arising out of this
    contract will be in the courts of Carroll County, New Hampshire."
    (Emphasis added).
    In   contrast    to  jurisdictional
    authority,    forum  selection   is
    necessarily exclusive.    In other
    words, when parties agree that they
    "will submit" their dispute to a
    specified forum, they do so to the
    exclusion of all other forums.
    Summit Packaging Sys. Inc. v. Kenyon & Kenyon, 
    273 F.3d 9
    , 13 (1st
    Cir. 2001).   (This statement was made in a diversity case arising
    out of New Hampshire, reviewing an arbitration clause that required
    the parties to choose one of the named fora.)
    Fornaro raises an additional argument.        He argues that
    the clause's reference to "courts" in the plural encompasses the
    federal district court of New Hampshire because, says Fornaro, that
    court "clearly has jurisdiction over matters in Carroll County, New
    Hampshire."   This is, at best, a strained way to describe the
    federal court and one that we do not accept as a reasonable
    interpretation.     It is far more likely that the parties intended
    the phrase "courts of Carroll County, New Hampshire" to mean the
    courts that trace their origin to the state, i.e., the Carroll
    County, New Hampshire state courts, of which there are the Carroll
    County Superior Court and two District Courts (Northern Carroll
    County District Court and Southern Carroll County District Court).
    See LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d
    -3-
    4,    7       (1st    Cir.   1984)   (opining    that   the    phrase    "courts    of
    Massachusetts" was more likely to have been intended by the parties
    to mean the courts that trace their origin to the state, i.e., the
    Massachusetts state courts, rather than a reference to all the
    courts physically within the state).
    Finally, Fornaro rests on this court's own statement.
    "We emphasize, however, that even a mandatory forum-selection
    clause does not in fact divest a court of jurisdiction that it
    otherwise retains."            Silva, 
    239 F.3d at
    388 n.6.          But, the cases
    cited in the remainder of footnote 6 in Silva actually reinforce
    the result in the instant case.                   The district court was not
    divested of its subject matter jurisdiction (based on diversity) as
    a    result      of    the   forum   selection    clause.      Rather,    the    forum
    selection clause "merely constitutes a stipulation in which the
    parties join in asking the court to give effect to their agreement
    by declining to exercise its jurisdiction."                 LFC Lessors, 739 F.2d
    at 6. As we stated, "'Exclusive jurisdiction' in this context thus
    refers to the intent of the parties rather than the actual power of
    the court."           Silva, 
    239 F.3d at
    388 n.6.           And that, in fact, is
    what the district court did in the instant case.                         It did not
    dismiss         Fornaro's      complaint    for     lack      of   subject      matter
    jurisdiction.2          It declined to exercise jurisdiction and dismissed
    2
    For this reason, Fornaro's repeated reliance on the
    magistrate judge's Order of April 12, 2004 is misplaced.      That
    Order, issued shortly after the case was filed, simply determined,
    -4-
    on the basis of the forum selection clause, thus giving effect to
    the parties' agreement to litigate their dispute related to or
    arising out of the Purchase Agreement in the state courts of
    Carroll County, New Hampshire.
    The district court judgment entered on October 15, 2004
    is affirmed.
    based solely on the complaint, that the requisites for diversity
    jurisdiction had been alleged, thus establishing, on a preliminary
    review, the appearance of subject matter jurisdiction.         The
    district court's later dismissal based on the forum selection
    clause did not conflict with any determination that subject matter
    jurisdiction based on diversity existed.
    -5-
    

Document Info

Docket Number: 04-2622

Citation Numbers: 201 F. App'x 783

Judges: Howard, Lynch, Per Curiam, Selya

Filed Date: 10/6/2006

Precedential Status: Precedential

Modified Date: 8/3/2023