Bowen Engineering Corporation v. Pacific Indemnity Co.,et al.
Filing
66
MEMORANDUM AND ORDER granting 27 defendants' Motion to Transfer Case and 29 Motion to Dismiss Party. Signed by Chief Judge J. Thomas Marten on 1/5/15. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Bowen Engineering, Corporation,
Plaintiff,
vs.
Case No. 14-1224-JTM
Pacific Indemnity Co., and Scott Process
Systems, Inc.,
Defendants.
MEMORANDUM AND ORDER
This is a dispute involving a biofuels construction project located in Kansas, owned
or operated by two entities, Abengoa Bioenergy Biomass of Kansas, and Abener Teyma
Hugoton GP. Plaintiff Bowen Engineering, an Indiana corporation, brought the original
breach of contract and unjust enrichment action against defendant Walters Metal
Fabrication, an Illinois corporation, seeking sums due in exchange for Bowen’s work. It also
sued defendants Pacific Indemnity Company and Scott Process Systems, Inc., based on lien
surety bonds issued in connection with the project. (Dkt. 1-1). Pacific and Scott removed
the action to this court.
Following the removal, Bowen settled its claim against Walters, which was
dismissed from the action. In the settlement, Walters agreed to execute a confession of
judgment in the amount of $718,781.92. Further, in addition to a direct payment of $200,000
to Bowen, Walters assigned to Bowen its claims against Scott and Pacific.
Bowen’s First Amended Complaint, filed December 9, 2014, advances claims of
breach of contract and unjust enrichment against Scott for failing to pay Walters. Bowen
also seeks to foreclose on the mechanics lien it filed against the project under K.S.A. 601101.
This matter is before the court on the Motion for Judgment on the Pleadings under
FED.R.CIV.PR. 12(c), as well as a Motion to Transfer Case, both filed by defendants Pacific
and Scott.1 In the former, the defendants argue that Bowen is not entitled to proceed
against the bond filed in Stevens County, Kansas. In the latter, the defendants argue that
the case should be transferred to a United States District Court in Missouri2 in light of the
forum selection clause in the underlying Assembly Services Agreement (ASA) between
Bowen and Walters. The defendants also note the Supreme Court’s recent decision in
Atlantic Marine Construction Co., v. United States Dist. Ct., 134 S.Ct. 568 (2013), which altered
the rules relating to transfers under 42 U.S.C. § 1404(a), including its determination that a
plaintiff’s choice of forum is entitled to no weight when it contravenes an otherwise
Defendant Walters also moved to transfer the action, but withdrew the motion
following the settlement with plaintiff.
1
The Assembly Services Agreement is silent as to whether disputes should be
brought in the Eastern or Western District of Missouri. The defendants suggest in their
motion that, given the proximity of the parties and witnesses to St. Louis, the Eastern
District is an appropriate venue. Bowen does not dispute this suggestion in its response.
2
2
applicable forum selection clause.
The Amended Complaint filed by Bowen on December 9, 2014, alters the
relationship among the parties by removing Walters and adding contract claims agains the
defendants,3 but does not alter the two essential questions presented to the court —
whether Bowen is close enough to the project to invoke the lien provision in the state
construction fairness act, and, if so, if this requires vitiating the agreement to litigate all
disputes in Missouri. The court finds that the answers to both questions is no.
Motion for Judgment on the Pleadings
The defendants’ Motion to Dismiss is grounded on the limitation on potential
claimants to a statutory bond under Kansas law. Such claimants may proceed against the
bond only if the claimant could have enforced and perfected a lien. K.S.A. 60-1103(a)
provides:
Any supplier, subcontractor or other person furnishing labor, equipment,
material or supplies, used or consumed at the site of the property subject to
the lien, under an agreement with the contractor, subcontractor or owner contractor
may obtain a lien for the amount due in the same manner and to the same
extent as the original contractor....
(Emphasis added.) The statute does not apply to remote suppliers, such as those that
supply labor or materials to sub-subcontractors. See Wichita Steel Metal Supply Inc. v.
Defendants Motion to Dismiss is directed at Count 2 of the original state court
petition (Dkt. 1-1, ¶¶ 37-47), which advanced Bowen’s K.S.A. 60-1103 claim for recovery
against lien surety bonds in lieu of foreclosure of its mechanic’s lien. This claim is
repeated verbatim as Count 4 of the Amended Complaint. (Dkt. 1-1, ¶¶ 64-75).
3
3
Dahlstrom and Ferrell Construction, 792 P.2d 1043, 1048 (Kan. 1990); J.W. Thompson Co. v.
Welles Products, 758 P.2d 738, Syl. ¶¶ 2-4 (Kan. 1988); BRB Contractors v. Akkerman
Equipment, 935 F.Supp. 1156, 1158-59 (D. Kan. 1996) (suppliers to sub-subcontractors are
not afforded statutory protection).
The defendants thus argue, and Bowen does not dispute, that under Kansas law
suppliers to second-tier subcontractors or suppliers do not have lien rights.
But the parties differ as to the identity of the parties to the construction contract.
Bowen characterizes Scott as the contractor, and suggests Abener Teyma Hugoton GP (one
of the parties contracting with Scott) was simply an agent of the owner, and not a true
contractor. Thus, Bowen contends, it was a supplier to a subcontractor (Walters), and not
a supplier to a sub-subcontractor. (Dkt. 37, at 2).
Bowen acknowledges that Abener held itself out as the contractor, but argues this
is not binding on the court. It relies in part on the decision of the Missouri Court of Appeals
in Tharp v. Keeter/Schaefer Investments, 943 S.W.2d 811 (Mo. Ct. App. 1997) (finding under
the facts of the case that a putative general contractor was actually an agent of the owner
rather than a true contractor). Bowen further argues that Kansas law implicitly recognizes
the concept of an owner’s agent in K.S.A. 60-1101, which provides that
Any person furnishing labor, equipment, material, or supplies used or
consumed for the improvement of real property, under a contract with the
owner or with the trustee, agent or spouse of the owner, shall have a lien upon
the property for the labor, equipment, material or supplies furnished at the
site of the property subject to the lien, and for the cost of transporting the
same.
4
(Emphasis added). Since K.S.A. 60-1103 does not include such language, Bowen argues, it
means such owner’s agents are not included.
Paragraph 3 of the state court Petition asserts that “Abener is either the owner of the
Biomass Project or is the owner’s agent.” (Dkt. 1-1, at ¶ 3). In their separate Answers, Scott
and Pacific each admitted Paragraph 3. (Dkt. 8, 9 at ¶ 3). But, as defendants note, their
Answers cannot be fairly read to indicate that Abener’s “only role was as the owner’s
agent.” (Dkt. 42, at 4, defendant’s emphasis). The defendants proceed to state specifically
in their Answers that “Bowen is not entitled to any mechanic’s lien under Kansas law as
it contracted with a supplier or sub-subcontractor to a subcontractor for the Project.” (Dkt. 8, 9, at
¶ 41 (emphasis added)). Bowen cites no authority for the proposition that the roles of
owner’s agent and contractor are exclusive.
The court concludes that even if Abener was an agent of the owner, this would not
exclude it from acting as a contractor. K.S.A. 60-1103 explicitly recognizes and defines the
concept of an “owner contractor.” Whether Abener was an agent or general contractor, §
60-1103 remains applicable, and the lien arises only in favor of the immediate “suppliers
and subcontractors” of the owner contractor, Abengoa.
Alternatively, Bowen argues that it is entitled to a mechanics lien based on a special
relationship between Abener and Abengoa. For this argument, Bowen relies on this court’s
decision in BRB Contractors v. Akkerman Equipment, 935 F.Supp. 1156, 1158-59 (D. Kan.
1996), which denied summary judgment based upon evidence that a subcontractor and
sub-subcontractor were involved in a joint venture.
5
The court finds BRB Contractors to be inapposite. The allegation advanced in the
complaint in BRB, if proved, would have the result that the claimant would advance from
third tier to second tier, advancing from sub-subcontractor status to subcontractor. Bowen’s
argument of a close relationship between Abengoa and Abener would have no such effect
here. As noted earlier, even if Abener was an agent of owner Abengoa, or even if those
parties were involved in a joint venture, Scott was still a subcontractor of the owner
contractor entity, as defined in K.S.A. 60-1103(b), Walters is a sub-subcontractor, and
Bowen is third tier claimant.
Bowen also notes that in Scott’s Notice of Extension to File Contractor’s Lien in
Stevens County, Kansas, the defendant identified itself as a “Contractor.” But the existence
of this Notice was not a part of Bowen’s allegations in the Complaint.4 Further, Scott
amended the Notice, specifically identifying Abener as the contractor and itself as
subcontractor, on July 14, 2014 – prior to the date that the present action was removed.
Bowen itself acknowledged in its lien statement that Abengoa Bioenergy Biomass
was the owner, and Abener Teyma Hugoton General was the project contractor. There is
simply no reasonable basis for any conclusion other than that Scott was the first-tier
Bowen does allege in its complaint that Scott and Walters were more than
suppliers. It alleges that Scott and Walters“perform[ed] work on the [] Project.” (Compl.
¶¶ 4-5, Dkt. 1). The defendants counter that the mere performance of some peripheral
work does not mean a party is not a supplier. In any event, as the defendants point out,
the point is not decisive. Even if the court considers Scott and Walters as subcontractor
and sub-subcontractor rather than suppliers, the result is the same: Bowen is simply too
distant from the general contract to benefit from the lien statue.
4
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subcontractor on the project. Walters was a second-tier subcontractor. And Bowen, a thirdtier subcontractor, is too remote to invoke the protection of the Kansas statute.
Motion to Transfer
The Assembly Services Agreement contains an express forum selection claue, under
which “the Parties agree to resolve its [sic] dispute in state or federal court in Missouri.”
Scott and Pacific invoke this clause in support of their Motion to Transfer the action to
Missouri.
In responding to the motion, Bowen argues first that the motion is untimely, since
under Rule 12(b)(3), a motion to dismiss for improper venue must be made prior to the
filing of a responsive pleading. In the present case, Walters filed its Answer prior to the
defendants’ Motion to Transfer. Second, Bowen argues that Pacific and Scott have no
standing to assert the forum selection clause contained in the ASA, which is applicable only
to “the Parties” to the ASA. Finally, the plaintiff contends that Kansas is the proper venue
for the action, since it is seeking to pursue a mechanics lien against the real estate in Kansas
under the Kansas Fairness in Private Construction Act (KFPCA), K.S.A. 16-1801 et seq.
The court finds that the defendants are not precluded from seeking a transfer of the
action to Missouri. Defendants are not seeking to dismiss the action under Rule 12, or
asserting improper venue as a defense to the Complaint, but are asking for transfer of the
action to Missouri. Rule 12(b)(3) is inapplicable. “An action may be transferred under §
1404(a) at any time during the pendency of the case, even after judgment has been
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entered.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991)
(citation omitted).
Further, defendants Pacific and Scott are entitled to invoke the forum selection
clause as intended beneficiaries of the clause. A nonsignatory party may still invoke such
a clause “if [its] relationship [to] the signatory is sufficiently close so that the nonparty’s
enforcement of the forum selection clause is foreseeable by virtue of the relationship
between the signatory and the party sought to be bound.” Magi XXI, Inc. v. Stato Della Ditta
Vaticano, 818 F.Supp.2d 597, 605-606 (citing In re Optimal U.S. Litigation, 813 F. Supp. 2d 351,
369 (E.D. N.Y. 2011). With respect to the forum selection clause, both Pacific and Scott are
intended beneficiaries of the ASA under Kansas law. See Noller v. GMC Truck & Coach Div.,
772 P.2d 271, 275 (Kan. 1989). Here, Bowen’s action against Pacific and Scott is predicated
on the actions of the signatory Walters, and their invocation of the forum selection clause
was entirely foreseeable.
As noted earlier, Bowen contends that the action is properly brought only in Kansas,
in light of the KFPCA. K.S.A. 16-1801(b) provides that “[t]he rights and duties prescribed
by this act” cannot be altered by contract. The KFPCA otherwise provides (in K.S.A. 161806) that “[v]enue of such an action shall be in the county where the real property is
located.”
The defendants stress that the KFPCA does not explicitly define venue as one of the
“rights and duties” which cannot be varied by contract. They also note that some other
states with similar construction statutes explicitly provide that out-of-state forum selection
8
clauses are void against public policy. See, e.g., 815 Ill.Comp.Stat. 665/10 (“A provision
contained in or executed in connection with a building and construction contract to be
performed in Illinois that makes the contract subject to the laws of another state or that
requires any litigation, arbitration, or dispute resolution to take place is against public
policy. Such a policy is void and unenforceable”).
The court finds that it need not directly resolve the issue. The KFCPA does not
directly prohibit the use of foreign forum selection clauses, in contrast to other state
construction codes. On the other hand, at least one commentator has assumed that the
KFCPA broadly limits such selection clauses. See C. Burger, “The Fairness in Private
Construction Act: Legislative Fairness or Oxymoron?” 75 J.K.B.A. 22, 25-26 (2006) (Act
“addresses such issues as attempts to undermine ‘substantive’ and ‘procedural’ rights,
subrogation, the recovery of attorneys' fees, and venue provisions” and “requires the
preservation of all procedural rights ... includ[ing] ... venue (including choice of forum)”).
However, even if the statute were so construed, this does not end the matter. This
is because “[i]n federal court, the effect to be given a contractual forum selection clause in
diversity cases is determined by federal not state law. Because [q]uestions of venue and the
enforcement of forum selection clauses are essentially procedural, rather than substantive,
in nature, federal law applies in diversity cases irrespective of Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938).” Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir.1995) (internal
citations and quotations omitted). See Atlantic Marine, 134 S.Ct. at 578 (“federal venue
provisions ... alone define whether venue exists in a given forum”).
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Forum selection clauses are presumptively valid. M/S Bremen v. Zapata Off–Shore Co.,
407 U.S. 1, 10 (1972).
Such clauses are unenforceable only “if enforcement would
contravene a strong public policy of the forum in which suit is brought, whether declared
by statute or by judicial decision.” Id. at 15. Further, federal courts will give effect to a
forum selection clause if the state policy against such clauses simply reflects the continued
“provincial attitude regarding the fairness of other tribunals.” Id. at 12. See Albemarle Corp.
v. AstraZeneca UK, 628 F.3d 643, 652 (4th Cir. 2010) (“contrary to judicial disfavor of forum
selection clauses such as that manifested in the South Carolina statute, in federal court,
forum selection clauses enjoy a presumption of enforceability”).
“Invalidating a forum selection clause because it conflicts with a statutory venue
provision ignores the strong countervailing public policy in favor of holding parties to their
agreements, which a court in similar circumstances has described as “the ‘dominant policy
in contract cases ... the better to promote commerce.’” Servewell Plumbing, LLC v. Federal Ins.
Co., 439 F.3d 786, 791-92 (8th Cir. 2006) (emphasis in Servewell, and quoting Omron
Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 603 (7th Cir.1994), other citations
omitted). See also Jones v. KP&H, LLC., 288 Fed.Appx. 464, 471 (10th Cir. 2008) (“In some
instances, they [the parties] may even agree to terms that conflict with statutory
requirements, and Kansas courts will give effect to their agreement rather than the
statute”).
The KFPCA does not preclude the application of the forum selection clause in the
ASA. The court is persuaded by the reasoning in cases such as Albemarle and
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Whiting-Turner Contracting Co. v. Westchester Fire Ins. Co., No. JFM-13-348, 2013 WL 3177881
(D.Md. 2013). In the latter, the court concluded that a Pennsylvania law barring the
application of forum selection clauses did not override such an agreement.
Westchester's invocation of Pennsylvania law, however, begs the
question of the proper law to be applied in determining the enforceability of
the forum-selection clause. Enforcement of a forum-selection clause in a
diversity action such as this is a procedural matter determined under federal
rather than state law. Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650
(4th Cir.2010). State statutes that expressly prohibit certain forum-selection
clauses ordinarily are preempted by federal laws and procedures governing
venue in federal courts. Id. Federal law recognizes forum-selection provisions
to be prima facie valid and requires such provisions to be enforced unless the
party opposing the provision establishes that enforcement of the
forum-selection clause would be unreasonable. M/S Bremen v. Zapata
Off–Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Enforcement
may be found unreasonable if, inter alia, application of the forum-selection
clause would contravene a strong public policy of the forum state. Albemarle
Corp., 628 F.3d at 651–52 (citing Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th
Cir.1996)).
The court therefore must consider whether Pennsylvania's avowed
disapproval of out-of-state forum-selection clauses in construction contracts
is a “strong public policy of the forum state” and, if so, whether federal
courts should defer to that policy. For at least three reasons, deference here
would be inappropriate. First, Pennsylvania is not the forum state. Although
the public policy of Pennsylvania might warrant consideration because the
construction project occurred there, Whiting-Turner is a Maryland
corporation and filed this action in Maryland rather than Pennsylvania.
Second, deference to Pennsylvania statutes governing the enforceability of
forum-selection clauses would contravene the express terms of the
subcontract between Ionadi Corp. and Whiting–Turner. That contract
provides: “This Subcontract shall be governed by the laws of the State of
Maryland, without regard to principles of conflict of laws.” (ECF No. 1–1 at
9.) That provision, like the forum-selection provision, was incorporated by
reference into the performance and payment bonds, and the parties therefore
agreed that Maryland rather than Pennsylvania law would govern all
disputes related to those bonds. This court, sitting in diversity, must look to
Maryland law to determine whether that choice-of-law provision is
11
enforceable, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct.
1020, 85 L.Ed. 1477 (1941), and under Maryland law “it is generally accepted
that the parties to a contract may agree as to the law which will govern their
transaction, even as to issues going to the validity of the contract,” Nat'l
Glass, Inc. v. J.C. Penney Props., Inc., 336 Md. 606, 650 A.2d 246, 248 (Md.1994)
(internal quotation marks omitted). This court therefore must give effect to
that choice-of-law provision and apply Maryland rather than Pennsylvania
law. Enforcement of a Pennsylvania statute prohibiting out-of-state
forum-selection clauses would flout the intent of the parties as expressed in
the contract.
Third, even if Pennsylvania laws were applicable, its prohibition of
out-of-state forum-selection clauses in construction contracts is not a “strong
public policy” that warrants federal deference. The Fourth Circuit addressed
an analogous question in Albemarle Corp. v. AstraZeneca UK Ltd. and
concluded that a South Carolina statute barring enforcement of
forum-selection clauses did not represent a “strong public policy” of that
state and should not be permitted to override the Supreme Court's embrace
of such clauses in M/S Bremen and its progeny. 628 F.3d at 652; see also Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)
(citing Burlington N .R. Co. v. Woods, 480 U.S. 1, 7, 107 S.Ct. 967, 94 L.Ed.2d 1
(1987)). That same reasoning is equally applicable here. Pennsylvania courts
routinely enforce forum-selection clauses requiring litigation in its state
courts, including in cases involving construction contracts. See, e.g., Patriot
Commercial Leasing Co. v. Kremer Rest. Enters., LLC, 915 A.2d 647, 650–51
(Pa.Super.Ct.2006) (citing Cent. Contracting Co. v. C.E. Youngdahl & Co., 418
Pa. 122, 209 A.2d 810 (Pa.1965)). Pennsylvania thus cannot be said to have a
strong public policy against the enforcement of forum-selection clauses. And
insofar as Pennsylvania only bars the enforcement of forum-selection clauses
that preclude venue in Pennsylvania courts, that policy reflects a “provincial
attitude regarding the fairness of other tribunals”—an attitude that the
Supreme Court rejected in M/S Bremen. See 407 U.S. at 12. Pennsylvania's
prohibition of out-of-state forum-selection clauses in construction contracts
therefore cannot trump the strong federal policy favoring the enforcement
of those provisions.
2013 WL 3177881 at *3-4.
These considerations are present in this action as well. None of the parties are
Kansas citizens. The parties to the ASA freely and voluntarily agreed to litigate all matters
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in Missouri. As noted earlier, the defendants are entitled to assert the forum selection
clause as intended beneficiaries of the agreement. And Kansas courts routinely enforce
forum selection clauses in other cases, recognizing that “a mandatory forum selection
clause may be enforced if it bears a reasonable relationship to the transaction.” Packard v.
Credit Solutions of America, 42 Kan.App.2d 382, 387, 213 P.3d 437, 441 (2009). See also Vanier
v. Ponsoldt, 251 Kan. 88, 99-100, 833 P.3d 949 (1992) (quoting The Bremen (407 U.S. at 13) as
to the “compelling reason” for giving such clauses “full effect,” and enforcing agreement
as to Kansas venue, in case involving sale of an Arabian horse located in Kentucky).
Similarly, in Brahma Group, Inc. v. Behham Constructors, 08-970TS, 2009 WL 1065419
(D. Utah. 2009) the court upheld application of a foreign selection clause in a contract
which specified the use of Texas law, even though Utah law provided that such clauses
were “void and unenforceable against the public policy of this state.” U.C.A. 1953 § 13-83(2). The court observed:
As a preliminary matter, it does not appear that protecting Utah residents
from lawsuits filed in another jurisdiction and providing a forum for Utah
residents' legal disputes are sufficient to qualify as “strong” public policies
against abiding by the express wishes of the parties and enforcing the forum
selection clause. Every state has a motivation to provide a forum for its
residents, but the requirement of a “strong” public policy must require more
than a state's understandable desire to provide a judicial haven for
businesses domiciled in the state. In M/S Bremen, GmBH, the United States
Supreme Court stated that “[t]he expansion of American business and
industry will hardly be encouraged if, notwithstanding solemn contracts, we
insist on a parochial concept that all disputes must be resolved under our
laws and in our court.” While the Supreme Court was expressly referencing
international trade, the principles are just as applicable to trade between the
states. The temptation to give in to parochial interests is what motivated the
Framers of the United States Constitution to remove from the states control
13
over interstate and international commerce.
Id. at *4 (footnotes omitted). Utah’s statutory scheme as to construction contracts was not
definitive, the court observing that under The Bremen, “the state of Utah does not get to
define its own public policy as ‘strong.’” Id. at *4 n. 15.
Alternatively, the court found the Utah statute precluding forum selection clauses
was procedural in nature, and thus not one which the court was bound to apply. In
reaching this conclusion, the court stressed that under Tenth Circuit precedent such clauses
are favored under federal law.
Because conflicts of law are inevitable in a federal system, parties to a
contract are empowered to and frequently do choose a particular state's law
to apply to the execution and interpretation of the contract. Absent special
circumstances, courts usually honor the parties' choice of law because two
“prime objectives” of contract law are “to protect the justified expectations
of the parties and to make it possible for them to foretell with accuracy what
will be their rights and liabilities under the contract.”
Id. at 5 (quoting Boyd Rosene & Assoc's v. Kansas Municipal Gas Agency, 174 F.3d 1115, 1121
(10th Cir.1999) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 comment e).
The court further noted the Tenth Circuit’s quotation of The Bremen (407 U.S. at 12) in Yavuz
v. 61 MM, Ltd., 465 F.3d 418, 429 (10th Cir.2006) — “The choice of forum was made in an
arms-length negotiation by experienced and sophisticated businessmen, and absent some
compelling and countervailing reason it should be honored by the parties and enforced by
the courts.”5
Other courts have reached different conclusions, but generally without
extended discussion. See Gem MechanicalServ. v. DV II, LLC. 2012 WL 2312095, *2 (D.R.I.
2012) (declining to enforce forum selection clause, given the “strong public policy ... set
5
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To summarize, the court finds that Bowen is too remote a supplier to invoke the
protection of K.S.A. 60-1103, as set forth in Count 4 of the Amended Complaint. Moreover,
Bowen’s claims are properly subject to the forum selection clause in the Assembly Services
Agreement, and the court transfers these claims to the United States Court for the Eastern
District of Missouri.
IT IS ACCORDINGLY ORDERED this 5th day of January, 2015, that the defendants’
Motions to Dismiss (Dkt. 29) and Transfer (Dkt. 27) are granted, as provided herein.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
forth in Rhode Island General Laws § 6-34.1-1, which provides that forum selection
clauses in construction contracts, where construction is located in Rhode Island, are
voidable by the party obligated by the contract to perform the construction or repair”);
Neon Contruction Enterp. v. International Bonding, 2012 WL 3111748, *2 (V.I.Super. 2012)
(finding “very clear policy dictating that forum selection clauses and choice-of-law
clauses cannot be enforced when the subject matter of an insurance contract is in the
Virgin Islands”); E. Cornell Malone Corp. v. Sisters of the Holy Family, 2012 WL 1886055
(E.D. La.,2012) (refusing to enforce clause “because the construction project is located
within Louisiana ... against the public policy of Louisiana, under both the Louisiana
statute and by application of [The Bremen] regarding a forum selection clause in
contravention of public policy”). See also United States v. TigPro, Inc., 2007 WL 1894154,
*9-10 (S.D. Tex. 2007) (finding Texas statute making forum selection clauses voidable
was not binding as an expression of public policy, since construction occurred in New
Hampshire).
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