United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court are defendant G.A. West & Company,
Inc.'s (GAW) motion to dismiss (Dkt. # 11) and, in the
alternative, motion to stay (Dkt. # 14). GAW asserts that a
suit is pending in Pennsylvania state court involving the
same parties and issues as this matter. Dkt. # 11, at 1. GAW
asks the Court to dismiss or stay this action under
Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976). Id. Plaintiff
Transcontinental Gas Pipe Line Company, LLC (Transco)
responds that the Court need not engage in Colorado
River analysis because a mandatory forum selection
clause dictates that this matter must be litigated in Tulsa,
Oklahoma. Dkt. # 18, at 11. Alternatively, Transco argues
that Colorado River abstention is not appropriate in
this case. Id. at 17.
January 6, 2015, the parties entered into an agreement for a
pipeline construction project in Luzerne County,
Pennsylvania. See Dkt. # 2-1. On February 12, 2015,
the parties entered into a second agreement for an additional
construction project in Columbia County, Pennsylvania.
See Dkt. # 2-2. Both contracts contain identical
choice of law and forum selection clauses, which state that
“[t]he laws of the State of Oklahoma, excluding its
choice of law principles, shall govern this Contract. . . .
Jurisdiction and venue shall lie exclusively with the
appropriate courts of Tulsa County, Oklahoma.” Dkt. #
2-1, at 24-25; Dkt. # 2-2, at 24-25. Both projects ran into
trouble and were not completed, and GAW filed suit on August
3, 2016 against Transco in the Court of Common Pleas of
Luzerne County, Pennsylvania, alleging breach of contract,
misrepresentation, suppression, and violation of the
Pennsylvania Contractor and Subcontractor Payment Act, 73 Pa.
Cons. Stat. § 501 et seq. (CASPA). Dkt. # 11-2.
On January 30, 2017, Transco filed suit against GAW in this
Court, alleging breach of contract, negligence, and negligent
injury to property. Dkt. # 2.
asks the Court to dismiss or stay these proceedings under the
Colorado River doctrine because the same parties are
already litigating the same issues in the Pennsylvania suit.
Dkt. # 11, at 1. Transco argues that the Colorado
River doctrine is not at issue because there is an
enforceable, mandatory forum selection clause that requires
litigation arising from the parties' contracts to be
conducted in Tulsa, Oklahoma. Dkt. # 18, at 11. GAW argues
that the forum selection clause is unenforceable. Dkt. # 11,
at 2 n.1. The Court will first consider the forum selection
first question is the law applicable to the forum selection
clause. GAW does not cite any law to support its arguments
regarding the forum selection clause, see id., and
Transco assumes federal law applies. See Dkt. # 18,
at 12. However, a forum selection clause should be
interpreted in accordance with the law chosen by the
contracting parties. Yavuz v. 61 MM, Ltd., 465 F.3d
418, 428 (10th Cir. 2006) (citing Restatement (Second) of
Conflict of Laws § 204(a)). Here, the parties have
agreed to have Oklahoma law govern the contract. Dkt. # 2-1,
at 24; Dkt. # 2-2, at 24. Thus, the Court will apply Oklahoma
law to the forum selection clause.
selection clauses fall into two general categories -
mandatory and permissive. See Beverly Enters.-Tex., Inc.
v. Devine Convalescent Care Ctr., 273 P.3d 890, 894
(Okla.Civ.App. 2012) (citing Excell, Inc. v. Sterling
Boiler & Mechanical, Inc., 106 F.3d 318 (10th Cir.
1997); K & V Scientific Co., Inc. v. Bayerische
Motoren Werke Aktiengesellschaft (BMW), 314 F.3d 494
(10th Cir. 2002); American Soda, LLP v. U.S. Filter
Wastewater Grp., Inc., 428 F.3d 921 (10th Cir. 2005)). A
permissive forum selection clause permits suit to be brought
in a particular jurisdiction, but does not prevent the
parties from litigating in a different forum. Id.
“[A] mandatory forum selection clause contains clear
language demonstrating litigation is appropriate in only a
designated forum.” Id.
contractual provision in this case is a mandatory forum
selection clause. The contract states that
“[j]urisdiction and venue shall lie
exclusively with the appropriate courts of Tulsa
County, Oklahoma.” Dkt. # 2-1, at 25; Dkt. # 2-2, at 25
(emphasis added). The provision does not simply permit the
parties to litigate in a specified forum, but clearly
mandates a specific forum as the only venue appropriate for
any dispute arising out of the agreement.
there is a valid forum selection clause, the burden is on the
party resisting enforcement to show that enforcement of the
clause would be unreasonable under the circumstances.
Tucker v. Cochran Firm-Criminal Defense Birmingham
LLC, 341 P.3d 673, 683 (Okla. 2014). “Because the
private interests in selecting a forum for disputes have been
determined contractually between the parties, a party
challenging the selection is usually left only two choices,
challenging the validity of the forum-selection clause or
showing that public interest or public policy requires
non-enforcement of the clause.” Id. at 683-84.
GAW does not challenge the validity of the forum selection
clause, but argues that the provision is unenforceable. Dkt.
# 11, at 2 n.1. First, GAW argues that the forum selection
clause is negated for claims brought under CASPA.
Id. But, even if that were correct, there is no
CASPA claim in this suit. Second, GAW argues that there is
not a sufficient relationship between Oklahoma and the causes
of action or parties in this case to enforce the forum
selection clause. Id. However, GAW has not carried
its burden to show that Oklahoma is such an inconvenient
forum that enforcing the forum selection clause would be
contrary to public interest or public policy. GAW simply
asserts that there is no connection between Oklahoma and the
parties and/or actions giving rise to this suit. Id.
Transco, on the other hand, asserts that Tulsa, Oklahoma is
its principal place of business. Dkt. # 18-1, at 1. The
burden is on GAW to show that Oklahoma would be so
inconvenient a forum that to enforce the forum selection
clause would be against public interest or public policy. A
conclusory statement that there is no connection to Oklahoma,
which is disputed by Transco, is not sufficient to meet
GAW's burden. Cf. Riley v. Kingsley Underwriting
Agencies, Ltd., 969 F.2d 953, 958 (10th Cir. 1992)
(“Only a showing of inconvenience so serious as to
foreclose a remedy, perhaps coupled with a showing of bad
faith, overreaching or lack of notice, would be sufficient to
defeat a contractual forum selection clause.”).
compelling reasons otherwise, forum selection clauses are
enforceable.” Howard Family Charitable Found., Inc.
v. Trimble, 259 P.3d 850, 862 (Okla.Civ.App. 2011). The
Court finds no reason not to enforce the forum selection
clause in this case. Because the forum selection clause is
mandatory and enforceable, and the parties agree that
Transco's claims all arise from the two contracts, Dkt. #
11, at 7; Dkt. # 18, at 11, the only appropriate venue for
this suit is “the appropriate courts of Tulsa County,
the Court does not agree with Transco that venue is proper in
this Court under the forum selection clause. The provision
states that “[j]urisdiction and venue shall lie
exclusively with the appropriate courts of Tulsa County,
Oklahoma.” Dkt. # 2-1, at 25; Dkt. # 2-2, at 25. The
Oklahoma Supreme Court has not addressed the issue of whether
“courts of” a specific place includes federal
courts. But other courts have interpreted “of” to
indicate sovereignty, not geography. See, e.g.,
New Jersey v. Merrill Lynch & Co., 640 F.3d 545,
549 (3rd Cir. 2011); FindWhere Holdings, Inc. v. Sys.
Env't Optimization, LLC, 626 F.3d 752, 755 (4th Cir.
2010); Doe 1 v. AOL LLC, 552 F.3d 1077, 1082 (9th
Cir. 2009); American Soda, 428 F.3d at 926;
Dixon v. TSE Int'l Inc., 330 F.3d 396, 398 (5th
Cir. 2003); LFC Lessors, Inc. v. Pac. Sewer Maint.
Corp., 739 F.2d 4, 6 (1st Cir. 1984). These courts have
held that designating the courts “in” an area
means both state and federal courts geographically located in
that area, but designating the courts “of” an
area means courts originating from that area. See,
e.g., Doe 1, 552 F.3d at 1082. Federal courts
do not originate in a state or county, but in the federal
government. American Soda, 428 F.3d at 926.
these cases to the forum selection clause in this matter,
“courts of Tulsa County, Oklahoma” refers only to
state courts. Thus, this Court is not the appropriate venue
for this suit. This Court cannot transfer a case to an
Oklahoma state court. Therefore, dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. §
1406(a). See Riley, 969 F.2d at 956 (affirming
district court's dismissal based on a forum selection
clause under Rule 12(b)(3)).
THEREFORE ORDERED that this case is dismissed pursuant to
Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1406(a). A
separate judgment is entered herewith.
FURTHER ORDERED that defendant G.A. West & Company,
Inc.'s motion to dismiss (Dkt. # 11) and motion ...