Silva v. Frankford Crossing Shopping Center, TX, LP

Filing 13

Order Accepting 10 Findings, Conclusions, and Recommendation of the United States Magistrate Judge. Defendant Frankford Crossing Shopping Center Dallas, Tx., L.P.'s Motion to Dismiss (ECF No. 3 ), filed 6/27/2012, is GRANTED, and its Motion to Abstain (ECF No. 7 ), filed 7/31/2012, is DENIED as moot. By separate judgment, all claims against Frankford Crossing Shopping Center Dallas, Tx., L.P., will be dismissed without prejudice. (Ordered by Judge Reed C O'Connor on 3/28/2013) (ctf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

PHILLIP SILVA,
Plaintiff,
v.
FRANKFORD CROSSING
SHOPPING CENTER, TX, LP,
Defendant.

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Civil Action No. 3:12-cv-2046-O

ORDER
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case (ECF No. 10). Plaintiff filed objections (ECF No. 11) and Defendant filed a response (ECF
No. 12). The Court has conducted a de novo review of those portions of the proposed findings and
recommendation to which objection was made. The Court finds that the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge are correct. Accordingly, Petitioner’s
objections are OVERRULED, and the Court ACCEPTS the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge as the findings of the Court.
Specifically, Plaintiff objected to the Magistrate Judge’s conclusion that the Forum Selection
Provision in this case is mandatory, rather than permissive. See Objection 3, ECF No. 11. Plaintiff
contends that the Magistrate Judge erroneously relied on other district court decisions that are
distinguishable from the instance case because each provision provided for a forum in a specific
geographical location. Id. at 5. Plaintiff contends that “[t]he fact that no specific geographical forum

is identified and the location of the forum is subject to change renders the provision ambiguous.”
Id. Further, Plaintiff contends, “since the forum selection provision is ambiguous, it should be
construed against Defendant as the drafter of the lease.” Id. at 6.
The Court finds Plaintiff’s argument unavailing. The forum-selection provision of the Lease
specifies: “any controversy . . . must be determined in the state, county or city courts in which
Owner’s principal office is located.” Def.’s App. Supp. Mot. Dismiss Ex. 1 (Vassello Aff. Ex. A
(Lease § 22.08)), at App. 14, ECF No. 3-1. The first paragraph of the Lease states that the
Defendant’s “principal office [is] located at 270 Commerce Drive, Rochester, New York 14623.”
Id. at App. 4. Because the Lease itself provides the location of the Owner’s principal office, there
is no ambiguity. See Tittle v. Enron Corp., 463 F.3d 410, 419 (5th Cir. 2006) (explaining that when
courts construe a contract, it should “examine and consider the entire writing” and “all the provisions
must be considered with reference to the whole instrument” (quoting Coker v. Coker, 650 S.W.2d
391, 393 (Tex. 1983))). Accordingly, the location of the forum is not ambiguous and the Magistrate
Judge did not err in determining that the forum selection provision is mandatory. Based on this
finding, the Magistrate Judge properly concluded that this action should be dismissed under
§ 1406(a).
Based on the foregoing, the Court finds that the Findings, Conclusions, and Recommendation
of the Magistrate Judge should be and are hereby ACCEPTED as the findings and conclusions of
this Court. Therefore, Defendant Frankford Crossing Shopping Center Dallas, Tx., L.P.’s Motion
to Dismiss (ECF No. 3), filed June 27, 2012, is GRANTED, and its Motion to Abstain (ECF No.
7), filed July 31, 2012, is DENIED as moot. By separate judgment, all claims against Frankford
Crossing Shopping Center Dallas, Tx., L.P., will be dismissed without prejudice.
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SO ORDERED on this 28th day of March, 2013.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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