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MEMORANDUM
To: Jim
From:
Paul Student NO.: 2100070115
Date:
Dec. 20
th
,2010
Re: LLM Final
Assignment
Facts：
Our client XYZ, a
Florida Corporation, has entered into a contract
with Plaintiff Paul Posner. The contract
contains a “Forum Selection”
clause which
states : “Except as otherwise expressly provided
herein, all claims, disputes and other matters
in question arising out
of or relating to this
Agreement, including the breach or
interpretation hereof (collectively,
“Disputes”), shall be brought in a
Court
located in Florida which Court shall have
exclusive
jurisdiction.” Now, Paul Posner, an
Illinois resident, has filed a
lawsuit in the
United States Court for the Northern District of
Illinois
requesting the Court to enter a
Declaratory Judgment finding that the
‘forum
selection’ provision of the Contract is
unenforceable.
Issue
：
1、Is
“Forum Selection” clause enforceable or
unenforceable?
2、Is United States Court for
the Northern District of Illinois a proper venue
to decide this case ?
Rule of
Law：
Since its seminal decision in The
Bremen v. Zapata Off-Shore Co., 407
U.S. 1
(1972), the United States Supreme Court and
Virginia Courts have
consistently accorded
choice of forum and choice of law provisions
presumptive validity. see also Vimar Seguros Y
Reaseguros, S.A. v. MV
Sky Reefer, 515 U.S.
528, 538 (1995); Carnival Cruise Lines, Inc. v.
Shute,
499 U.S. 585, 595 (1991). This freedom
to choose a forum is also recognized
under
Florida law, which the parties chose to use in
resolving disputes
under the Contract. See
Paul Business Systems, Inc. v. Canon U.S.A., Inc.,
397 S.E.2d 804, 807 (Va. 1990) (embracing
forum clauses are
Because the of
lawand selectionclauses of the
Contract are
facie valid,the Plaintiff has the burden of
proof
den v. Lloyd’s of London held that
Forum Selection clauses were prima
facie valid
and should be enforced unless shown to be
unreasonable under
those circumstances:(1) if
their incorporation into the contract was the
result of fraud, undue influence, or
overweening bargaining power; (2) if
the
selected forum was so gravely difficult and
inconvenient that the
complaining party would
for all practical purposes be deprived of its day
in
court; or (3) if enforcement of the clauses
would contravene a strong public
policy of the
forum in which the suit was brought, declared by
statute, or
judicial decision.
And
Federal Rules of Civil Procedure 12 (b) (3) stetes
that
venue
lawsuit will not be , as here,
jurisdiction is not founded
solely on
diversity of citizenship, venue is proper in
either: (1) a judicial
district where any
defendant resides or (2) a judicial district in
which a
substantial part of the events or
omissions giving rise to the claim
occurred.
28 U.S.C. 1391(b).Moreover, “once an objection to
venue has
been raised, the plaintiff bears the
burden of establishing that venue is
proper.” D'Anton Jos, S.L. v. Doll
Factory, Inc., 937 . 320, 321
(S.D.N.Y. 1996).
Plaintiffs, therefore, bear the burden of
establishing that a
substantial part of the
events giving rise to this lawsuit occurred in the
Eastern District of New York. Id; see also
French Transit, Ltd. v. Modern
Coupon Systems,
Inc., 858 F. Supp. 22, 25 (S.D.N.Y. 1994).
Analysis：
The
Contract which our
client entered into with Plaintiff on the
Principle of
Autonomy of will. Pursuant to
this article, our client XYZ is herein endowed
with a right of forum-selecting.
In
this case ,The plaintiff can not offer any
evidence to prove that the
“Forum Selection
clause” does not satisfy the three circumstances
mentioned above .what matters is not “it is in
the interest of both Illinois
and Florida for
courts in Illinois to determine disputes brought
by Illinois
Citizens regarding Illinois
contracts…” ,but that the plaintiff need to prove
that the forum selection clause is unfair or
will cause
inconvenience .Where defendant
challenges venue under Rule 12(b)(3),
plaintiff has burden of proving that venue is
proper in filing district. The
“Forum
Selection clause” is reasonable and enforceable
because the
plaintiff can not produce evidence
to turn down it.
And secondly if the clause
is intended by the parties to be mandatory,
each party hereby waives any right it may have
to assert the doctrine of
forum non
convenience or similar doctrine or to object to
venue with
respect to any proceeding brought
in accordance with this clause.
Based on the
analysis mentioned above, we know The “Forum
Selection clause” is enforceable which will
accordingly leading to the
conclusion that The
United States Court for the Northern District of
Illinois
is not a proper venue to decide this
case because the defendant have to
right to
choose the court which of course will be the
Florida court .
Conclusion：
According to the foregoing analysis,
“Forum Selection” clause in this
case is valid
and enforceable. Illinois is “improper venue” and
Florida is a
proper venue in this case. The
case shall be accepted and heard in a
Florida
court Florida court as true venue have the
exclusive jurisdiction.
Pursuant to FRCP 12
(b) (3), we can make a motion to dismiss for
Illinois
court lacking of proper venue.
MEMORANDUM
To: Jim
From: Paul Student NO.: 2100070115
Date: Dec. 20
th
,2010
Re: LLM
Final Assignment
Facts：
Our client
XYZ, a Florida Corporation, has entered into a
contract
with Plaintiff Paul Posner. The
contract contains a “Forum Selection”
clause
which states : “Except as otherwise expressly
provided
herein, all claims, disputes and
other matters in question arising out
of or
relating to this Agreement, including the breach
or
interpretation hereof (collectively,
“Disputes”), shall be brought in a
Court
located in Florida which Court shall have
exclusive
jurisdiction.” Now, Paul Posner, an
Illinois resident, has filed a
lawsuit in the
United States Court for the Northern District of
Illinois
requesting the Court to enter a
Declaratory Judgment finding that the
‘forum
selection’ provision of the Contract is
unenforceable.
Issue
：
1、Is
“Forum Selection” clause enforceable or
unenforceable?
2、Is United States Court for
the Northern District of Illinois a proper venue
to decide this case ?
Rule of
Law：
Since its seminal decision in The
Bremen v. Zapata Off-Shore Co., 407
U.S. 1
(1972), the United States Supreme Court and
Virginia Courts have
consistently accorded
choice of forum and choice of law provisions
presumptive validity. see also Vimar Seguros Y
Reaseguros, S.A. v. MV
Sky Reefer, 515 U.S.
528, 538 (1995); Carnival Cruise Lines, Inc. v.
Shute,
499 U.S. 585, 595 (1991). This freedom
to choose a forum is also recognized
under
Florida law, which the parties chose to use in
resolving disputes
under the Contract. See
Paul Business Systems, Inc. v. Canon U.S.A., Inc.,
397 S.E.2d 804, 807 (Va. 1990) (embracing
forum clauses are
Because the of
lawand selectionclauses of the
Contract are
facie valid,the Plaintiff has the burden of
proof
den v. Lloyd’s of London held that
Forum Selection clauses were prima
facie valid
and should be enforced unless shown to be
unreasonable under
those circumstances:(1) if
their incorporation into the contract was the
result of fraud, undue influence, or
overweening bargaining power; (2) if
the
selected forum was so gravely difficult and
inconvenient that the
complaining party would
for all practical purposes be deprived of its day
in
court; or (3) if enforcement of the clauses
would contravene a strong public
policy of the
forum in which the suit was brought, declared by
statute, or
judicial decision.
And
Federal Rules of Civil Procedure 12 (b) (3) stetes
that
venue
lawsuit will not be , as here,
jurisdiction is not founded
solely on
diversity of citizenship, venue is proper in
either: (1) a judicial
district where any
defendant resides or (2) a judicial district in
which a
substantial part of the events or
omissions giving rise to the claim
occurred.
28 U.S.C. 1391(b).Moreover, “once an objection to
venue has
been raised, the plaintiff bears the
burden of establishing that venue is
proper.” D'Anton Jos, S.L. v. Doll
Factory, Inc., 937 . 320, 321
(S.D.N.Y. 1996).
Plaintiffs, therefore, bear the burden of
establishing that a
substantial part of the
events giving rise to this lawsuit occurred in the
Eastern District of New York. Id; see also
French Transit, Ltd. v. Modern
Coupon Systems,
Inc., 858 F. Supp. 22, 25 (S.D.N.Y. 1994).
Analysis：
The
Contract which our
client entered into with Plaintiff on the
Principle of
Autonomy of will. Pursuant to
this article, our client XYZ is herein endowed
with a right of forum-selecting.
In
this case ,The plaintiff can not offer any
evidence to prove that the
“Forum Selection
clause” does not satisfy the three circumstances
mentioned above .what matters is not “it is in
the interest of both Illinois
and Florida for
courts in Illinois to determine disputes brought
by Illinois
Citizens regarding Illinois
contracts…” ,but that the plaintiff need to prove
that the forum selection clause is unfair or
will cause
inconvenience .Where defendant
challenges venue under Rule 12(b)(3),
plaintiff has burden of proving that venue is
proper in filing district. The
“Forum
Selection clause” is reasonable and enforceable
because the
plaintiff can not produce evidence
to turn down it.
And secondly if the clause
is intended by the parties to be mandatory,
each party hereby waives any right it may have
to assert the doctrine of
forum non
convenience or similar doctrine or to object to
venue with
respect to any proceeding brought
in accordance with this clause.
Based on the
analysis mentioned above, we know The “Forum
Selection clause” is enforceable which will
accordingly leading to the
conclusion that The
United States Court for the Northern District of
Illinois
is not a proper venue to decide this
case because the defendant have to
right to
choose the court which of course will be the
Florida court .
Conclusion：
According to the foregoing analysis,
“Forum Selection” clause in this
case is valid
and enforceable. Illinois is “improper venue” and
Florida is a
proper venue in this case. The
case shall be accepted and heard in a
Florida
court Florida court as true venue have the
exclusive jurisdiction.
Pursuant to FRCP 12
(b) (3), we can make a motion to dismiss for
Illinois
court lacking of proper venue.