United States District Court, D. New Mexico
MVT ENTERPRISES, INC. and MVT SERVICES, LLC, Plaintiffs,
COMDATA NETWORK, INC. and COMDATA, INC. d/b/a COMDATA PAYMENT INNOVATION, Defendants.
M. Estrada and Steven J. Blanco, Blanco, Ordonez, Mata, &
Wallace, P.C. El Paso, Texas, for Plaintiffs.
Gregory L. Biehler and Leah Shover, Lewis Brisbois Bisgaard
and Smith LLP, Albuquerque, New Mexico, for Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR
IMPROPER VENUE OR, IN THE ALTERNATIVE, TO TRANSFER
MATTER comes before the court on Defendants' Motion to
Dismiss for Improper Venue or, in the Alternative, to
Transfer Venue filed July 25, 2018. ECF No. 5. Upon
consideration thereof, Defendants' motion is not well
taken and should be denied.
MVT Enterprises, Inc., and MVT Services, LLC
(“MVT”) are freight-trucking companies with their
principal place of business in New Mexico. Pls.' Compl.
at 1-2 (ECF No. 2-2). Defendants Comdata Network, Inc., and
Comdata, Inc. (“Comdata”), are Maryland and
Delaware corporations respectively, both with a principal
place of business in Tennessee. Id. MVT entered into
an agreement with Comdata for payment services, including
payments to truck drivers. Id. at 2-3. MVT also
utilizes another payment service, Electronic Fund Sources,
LLC (EFS). Id. at 3. One payment method offered by
Comdata, called Comchek®, was promoted as similar to a
blank check, but more secure. Id. at 3-4. MVT
contends that Comdata failed to authenticate and secure
proper approval before dispersing funds to one of MVT's
former employees. Id. at 3-4. According to the
complaint, the amount of funds disbursed by Comdata and EFS
to the employee totaled more than $890, 000. Id. at
agreement between MVT and Comdata included a provision
outlining choice of law and forum selection. The agreement
provides, in relevant part:
This Agreement shall be governed by the laws of the State of
Tennessee without regard to the choice of law rules of such
state. Any action to enforce or interpret this Agreement may
be brought in the appropriate judicial forum located in
Nashville, Davidson County, Tennessee, and Customer does
hereby consent to such jurisdiction and waives any objections
Defs.' Mot. to Dismiss, Ex. A at 4, ¶ 21 (ECF No.
filed suit in New Mexico state court for breach of contract
on June 14, 2018. Pls.' Compl. at 1 (ECF No. 2-2).
Comdata removed the case based on diversity jurisdiction on
July 16, 2018. Defs.' Notice of Removal (ECF No. 2-1).
Comdata then filed the instant motion to dismiss or transfer
first argues that any dispute must be litigated in the courts
of Nashville, Davidson County, Tennessee, under the
agreement's choice of law and forum selection clause.
Defs.' Mot. to Dismiss at 3-4 (ECF No. 5). Comdata argues
the agreement's forum selection provision is mandatory,
making venue in New Mexico improper. Id. In
response, MVT argues that the agreement's forum selection
is merely permissive, not mandatory, and therefore venue in
New Mexico is proper. Pls.' Resp. to Defs.' Mot. to
Dismiss at 3-6 (ECF No. 8).
Tenth Circuit classifies forum selection clauses as either
permissive or mandatory. Permissive forum selection clauses
authorize jurisdiction in a selected forum but do not
prohibit litigation in another venue; mandatory forum
selection clauses require litigation in a designated forum to
the exclusion of all other forums. See K&V Sci. Co.
v. BMW AG, 314 F.3d 494, 498 (10th Cir. 2002). The
determination whether a forum selection clause is mandatory
or permissive turns, like any other contract interpretation
question, on the plain meaning of the contract's terms.
See, e.g., West v. Shelby Cty. Healthcare
Corp., 459 S.W.3d 33, 41-42 (Tenn. 2014).
the plain language of the contract shows that the forum
selection clause is permissive. A mandatory forum selection
clause would use language of obligation - prototypically,
“shall” or “must.” Cf.
Mandatory, Black's Law Dictionary (10th ed.
2014). The forum selection clause here, however, uses the
permissive language “may”: an “action to
enforce or interpret this Agreement may be brought
in . . . Tennessee.” Defs.' Mot. to Dismiss, Ex. A
at 4, ¶ 21 (ECF No. 5-1) (emphasis added).
the forum selection clause were ambiguous (which it is not),
any ambiguities are construed against the drafter. See
K&V Sci. Co., 314 F.3d at 500. Here, Comdata is the
drafter, and this reinforces reading the clause as
permissive. Therefore, ...