United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion to
Dismiss on the Basis of Improper Venue and/or Lack of
Jurisdiction [Doc. 1-3]. The Court, having considered the
motion, briefs, and relevant law, and being otherwise fully
informed, finds that the Motion is not well-taken and will be
3rd Rock Logistics entered into a Master Service Agreement
(“MSA”) with Defendants. The MSA contains the
following “Choice of Law” provision:
THE PARTIES AGREE THAT THE LAWS OF THE STATE OF TEXAS SHALL
GOVERN THIS AGREEMENT AND ANY COMMERCIAL TERMS, WITHOUT THE
APPLICATION OF CHOICE OF LAW RULES. THE PARTIES VOLUNTARILY
SUBMIT TO THE JURISDICTION AND VENUE OF THE FEDERAL OR STATE
COURTS OF THE STATE OF TEXAS FOR THE ADJUDICATION OF THEIR
LIABILITIES AND RESPONSIBILITIES UNDER THIS AGREEMENT.
commenced an action against Defendants under the MSA on April
5, 2016, in the Fifth Judicial District Court of New Mexico,
Eddy County. Doc. 1-2. On June 8, 2016, Defendants filed the
instant motion to dismiss, arguing that the choice of law
provision in the MSA “mandat[es] jurisdiction and venue
in either the State or Federal Courts of Texas.” Doc.
1-3 at ¶ 1. Thereafter, on June 9, 2016, Defendants
removed the action to this Court. Doc. 1. On June 27, 2016,
Plaintiff filed in this Court its opposition to
Defendants' motion to dismiss, arguing that the choice of
law provision is permissive rather than mandatory, and that
jurisdiction thus is proper in this Court. Doc. 3.
Defendants' reply followed on July 12, 2016.
argue that this Court is not the proper venue for, and/or
lacks jurisdiction over, this action because the choice of
law provision in the MSA “mandat[es] jurisdiction and
venue in either the State or Federal Courts of Texas.”
Doc. 1-3 ¶ 1. According to Defendants, because
“the parties ‘submitted' to both jurisdiction
and venue in the Courts of the State of Texas, ” this
Court should dismiss the case “so that Plaintiffs may
refile, if they choose, in a court in the proper
forum.” Id. at 3. Plaintiff does not dispute
the general validity of the choice of law provision in the
MSA. Rather, Plaintiff contends that under both Tenth Circuit
law and Texas law, the MSA's choice of law provision
contains a permissive forum selection clause, which renders
jurisdiction and venue permissible but not exclusive or
mandatory in Texas and thus does not prohibit the parties
from filing suit in another jurisdiction.
classify forum selection clauses as either mandatory or
permissive.” Excell, Inc. v. Sterling Boiler &
Mech., 106 F.3d 318, 321 (10th Cir. 1997).
“Mandatory forum selection clauses contain clear
language showing that jurisdiction is appropriate only in the
designated forum.” Id. (citations omitted).
“In contrast, permissive forum selection clauses
authorize jurisdiction in a designated forum, but do not
prohibit litigation elsewhere.” Id.
Tenth Circuit law, when a forum selection clause specifies
not only jurisdiction but also venue, such as by designating
a particular county or tribunal, if “the designation is
accompanied by mandatory or obligatory language, ” the
clause “will be enforced as mandatory.” Am.
Soda, LLP v. Filter Wastewater Group, Inc., 428 F.3d
921, 927 (10th Cir. 2005). Also under Tenth Circuit law,
where only jurisdiction is specified, the Court will enforce
a forum selection clause as mandatory only “if there is
some additional language indicating the parties' intent
to make venue exclusive, ” such as “exclusive,
” “sole, ” or “only.” Id; K
& V Sci. Co. v. BMW, 314 F.3d 494, 500 (10th Cir.
2002); see also King v. PA Consulting Group, Inc.,
78 F. App'x 645, 647 (10th Cir. 2003) (“[A] clause
specifying a forum for jurisdiction may mandate that forum
for purposes of venue as well, if it contains clear language
showing that jurisdiction is appropriate only in the
under Texas law, “[f]or a forum selection clause to be
considered mandatory or exclusive, the clause “must go
beyond establishing that a particular forum will have
jurisdiction and must clearly demonstrate the parties'
intent to make that jurisdiction exclusive.” In re
Agresti, No. 13-14-00126, 2014 WL 3408691, at *5 (Tex.
Ct. App. May 29, 2014). On the other hand, “a
permissive forum selection clause, often described as a
‘consent to jurisdiction' clause, authorizes venue
in a designated forum but does not prohibit litigation
elsewhere.” Id. “[C]lauses in which
parties merely ‘consent' or ‘submit' to
the jurisdiction of a particular forum are permissive rather
than mandatory, and a mere consent-to-jurisdiction clause
will not justify dismissing a suit that is filed in a
different forum.” In re Wilmer Cutler Pickering
Hale and Dorr LLP, No. 05-08-1395-CV, 2008 WL 5413097,
at *4 (Tex. Ct. App. Dec. 31, 2008). In applying these
principles, Texas courts “have determined that various
forum selection clauses which specify a particular
jurisdiction, but do not exclude others, do not create
mandatory and enforceable forum selection clauses.”
Agresti, 2014 WL 3408691, at * 5.
instant case, the MSA's forum selection clause states in
relevant part that the parties “voluntarily submit to
the jurisdiction and venue of the federal or state courts of
the state of Texas for the adjudication of their liabilities
and responsibilities.” Doc. 3 at 2. This clause
contains no mandatory or obligatory language indicating that
the parties shall or must submit to the jurisdiction of Texas
courts. Nor does it contain any additional language
indicating that the parties intended to make a particular
tribunal in Texas the exclusive, sole, or only venue for
litigating the MSA.
contrary, the plain language of the clause makes clear the
parties' intention simply to “submit” to the
jurisdiction of the Texas courts. As written, the clause
“does not provide for exclusive jurisdiction in
[Texas]; instead, it merely settles any question of whether
the courts of that state have jurisdiction.” Sw.
Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322,
325 (Tex. Ct. App. 1999). Because it “neither prohibits
litigation in jurisdictions other than [Texas] nor provides
that [Texas] courts have exclusive jurisdiction over all
claims arising out of the [MSA], ” the MSA's forum