Baldwin v. Aviva Life and Annuity

Filing 33

MEMORANDUM DECISION AND ORDER granting 25 Motion to Dismiss. Signed by Judge David Nuffer on 2/23/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
RICHARD BALDWIN, an individual,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
DISMISS BASED ON FORUM NON
CONVENIENS

v.
Case No. 2:16-CV-202-DN
AVIVA LIFE AND ANNUITY COMPANY
and DOES 1 through 10,

District Judge David Nuffer

Defendants.

Plaintiff Richard Baldwin (“Baldwin”) alleges three tort claims against Defendant Aviva
Life and Annuity Company (“Aviva”): malicious prosecution, abuse of process, and interference
with economic relations. 1 Baldwin’s claims arise from Aviva reporting Baldwin to the Utah
Department of Insurance, the insurance departments of other states, and the NAIC fraud database
after Aviva terminated Baldwin’s Independent Producer Contract (“Contract”) for cause. 2
Aviva seeks dismissal of Baldwin’s claims for forum non conveniens arguing that the
proper forum for the claims is the District Court of Polk County, Iowa, the forum selected in the
parties’ Contract. 3 Alternatively, Aviva seeks dismissal of Baldwin’s claims under Rule 12(b)(6)
of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be

1

Amended Complaint ¶¶ 25-39, docket no. 24, filed July 21, 2016.

2

Id.

3

Motion to Dismiss Plaintiff’s Amended Complaint Based on Forum Non Conveniens and Failure to State a Claim
(“Motion to Dismiss”) at 1-2, docket no. 25, filed Aug. 24, 2016.

granted. 4 Baldwin opposes Aviva’s Motion to Dismiss arguing that his tort claims are not
governed by the Contract’s forum-selection clause. 5
Because Baldwin’s claims fall within the scope of the Contract’s forum-selection clause,
and because Baldwin has failed to meet his burden of establishing that dismissal is unwarranted,
Aviva’s Motion to Dismiss 6 is GRANTED.

BACKGROUND ............................................................................................................................ 3
DISCUSSION ................................................................................................................................. 4
Standard of Review ................................................................................................................... 5
The Contract’s Forum-Selection Clause is Valid and Mandatory ............................................ 7
The Scope of the Contract’s Forum-Selection Clause Encompasses Baldwin’s Tort Claims .. 9
Under Utah and Iowa Law, Baldwin’s Tort Claims Fall Within the Scope of the
Contract’s Forum-Selection Clause ............................................................................ 11
Under Federal Common Law, Baldwin’s Tort Claims Fall Within the Scope of the
Contract’s Forum-Selection Clause ............................................................................ 16
Dismissal of Baldwin’s Tort Claims for forum non conveniens is Warranted ....................... 20
ORDER ......................................................................................................................................... 25

4

Id. at 2.

5

Memorandum in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint Based on Forum
Non Conveniens and Failure to State a Claim (“Baldwin’s Opposition”), docket no. 26, filed Sept. 20, 2016.

6

Motion to Dismiss, docket no. 25, filed Aug. 24, 2016.

2

BACKGROUND
This case arises out of the termination of the Contract between Baldwin and Aviva, and
Aviva’s subsequent reporting of Baldwin to various state and federal insurance departments.
Baldwin, a resident of Utah, was an independent sales agent of Aviva, an insurance company
with its principal place of business in West Des Moines, Iowa. 7 The parties’ Contract contains a
forum-selection clause and a choice-of-law provision. 8 These clauses state that Iowa law governs
the Contract and that the “District Court of Polk County, Iowa shall have exclusive jurisdiction
over any and all disputes which may arise with respect to this Contract, consent to such
jurisdiction, and agree that proper venue exists therein.” 9
Based on allegations that certain insurance policies (“Insurance Policies”) secured by
Baldwin were no longer wanted by the insureds, were issued without the insureds’ knowledge,
and had forged signatures, Aviva sent Baldwin a letter, dated November 28, 2011 (“November
Letter”), stating that it was terminating the Contract without cause. 10 In April 2012 Aviva sent
Baldwin a letter (“April Letter”) changing the termination status to “for cause” based on Aviva’s
investigation relating to the Insurance Policies. 11 The April Letter indicated that Baldwin was
being terminated pursuant to Section 15 of the Contract, which states that termination “for
cause” includes situations in which Baldwin subjects Aviva to liability, fails to comply with state
or federal laws, rules, or regulations, breaches the Contract, commits fraud or misrepresents

7

Id. at 4; Baldwin’s Opposition at 1-3, docket no. 26, filed Sept. 20, 2016.

8

Contract, docket no. 25-1, filed Aug. 24, 2016.

9

Id. ¶ 21.

10

Amended Complaint ¶¶ 6-7, 11, 15, docket no. 24, filed July 21, 2016; November Letter, docket no. 24-1, filed
July 21, 2016.
11

Amended Complaint ¶ 17, docket no. 24, filed July 21, 2016; April Letter, docket no. 24-2, filed July 21, 2016.

3

facts, or engages directly or indirectly in a rebating scheme. 12 According to the April Letter,
Baldwin involvement with the Insurance Policies constituted engagement in a rebating scheme. 13
Following Baldwin’s termination for cause, Aviva reported Baldwin’s alleged fraudulent
activity to the Utah Department of Insurance, the insurance departments of other states, and the
NAIC, a national fraud database that insurance companies check when hiring sales agents. 14
Aviva’s reporting of Baldwin to the Utah Department of Insurance was required by Utah law
because Baldwin’s termination was for cause. 15 This reporting resulted in the initiation of
criminal proceedings against Baldwin by the State of Utah for the alleged fraud. 16 However, the
charges were eventually dismissed for lack of evidence. 17
Baldwin alleges that Aviva’s actions in reporting him have made it difficult for him to
earn a living in the insurance industry and that he has suffered millions of dollars in damages. 18
As a result, Baldwin initiated this case against Aviva alleging claims of malicious prosecution,
abuse of process, and interference with economic relations. 19
DISCUSSION
Aviva argues that this case must be dismissed because the Contract’s forum-selection
clause is mandatory; Baldwin’s tort claims fall within the scope of the forum-selection clause;
and public-interest factors under the doctrine of forum non conveniens weigh in favor of

12

April Letter, docket no. 24-2, filed July 21, 2016.

13

Id.

14

Amended Complaint ¶¶ 18-19, docket no. 24, filed July 21, 2016.

15

Utah Admin. Code R590-244-9(3) (2011).

16

Amended Complaint ¶ 20, docket no. 24, filed July 21, 2016.

17

Id.

18

Id. ¶ 24.

19

Id. ¶¶ 24-39.

4

dismissal. 20 Baldwin opposes the Motion to Dismiss arguing that his tort claims are independent
from and do not relate to the Contract, and even if they did, the public-interest factors of the
forum non conveniens analysis demonstrate that dismissal is unwarranted. 21 Baldwin does not
contest the enforceability or validity of the Contract or its forum-selection and choice-of-law
provisions. 22
Standard of Review
The United States Supreme Court has held that a motion to dismiss for forum non
conveniens is “the appropriate way to enforce a forum-selection clause pointing to a state or
foreign forum,” as opposed to a motion to transfer under 28 U.S.C. § 1404(a), which would
apply to a contractual forum-selection clause pointing to a federal forum. 23 “And because
both § 1404(a) and the forum non conveniens doctrine from which it derives entail the same
balancing-of-interests standard, courts should evaluate a forum-selection clause pointing to a
nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a
federal forum.” 24
Under the balancing-of-interests standard, district courts typically “evaluate both the
convenience of the parties and various public-interest considerations.” 25 But when there is a
valid forum-selection clause, “a district court should ordinarily transfer the case to the forum

20

Motion to Dismiss at 7-15, docket no. 25, filed Aug. 24, 2016.

21

Baldwin’s Opposition at 3-11, docket no. 26, filed Sept. 20, 2016.

22

Amended Complaint, docket no. 24, filed July 21, 2016; Baldwin’s Opposition, docket no. 26, filed
Sept. 20, 2016.
23

Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Texas, 134 S. Ct. 568, 580, 583 n.8, 187 L. Ed. 2d
487 (2013).
24

Id. at 580.

25

Id. at 581.

5

specified in that clause.” 26 “Only under extraordinary circumstances unrelated to the
convenience of the parties should [the] motion be denied.” 27 Essentially, “a valid forum-selection
clause [should be] given controlling weight in all but the most exceptional cases.” 28
For the valid forum-selection clause to be given controlling weight, the clause must be
mandatory, not merely permissive. 29 A mandatory forum-selection clause is one that “contains
clear language showing that jurisdiction is appropriate only in the designated forum.” 30 A
permissive forum-selection clause, on the other hand, is nonexclusive. 31
After it is determined that a forum-selection clause is valid and mandatory, the balancingof-interests standard changes in three ways. “First, the plaintiff's choice of forum merits no
weight.” 32 The plaintiff thus “bears the burden of establishing that transfer to the forum for
which the parties bargained [or dismissal of the case] is unwarranted.” 33 Second, the parties
cannot “challenge the preselected forum as inconvenient or less convenient for themselves or
their witnesses, or for their pursuit of the litigation,” and the “private-interest factors [are
deemed] to weigh entirely in favor of the preselected forum.” 34 Because of this, the publicinterest factors “will rarely defeat” a motion to dismiss for forum non conveniens and “the

26

Id.

27

Id.

28

Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S. Ct. 2239, 2246, 101 L. Ed. 2d 22 (1988)).

29

Nelson v. Aramark Sports & Entm't Servs., LLC, Case No. 2:14-CV-474-DN, 2015 WL 1014579, at *2 (D. Utah
Mar. 9, 2015).
30

King v. PA Consulting Grp., Inc., 78 Fed. App’x 645, 647 (10th Cir. 2003) (quoting Excell, Inc. v. Sterling
Boiler & Mech., Inc., 106 F.3d 318, 321 (10th Cir. 1997)).

31

Id. at 648.

32

Atl. Marine Constr. Co., 134 S. Ct. at 581.

33

Id.

34

Id. at 582.

6

practical result is that forum-selection clauses should control except in unusual cases.” 35 “Third,
when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a
different forum, [the motion to dismiss] will not carry with it the original venue's choice-of-law
rules.” 36 Rather, the choice-of-law rules from the forum selected in the parties’ contract generally
will govern the dispute. 37
The Contract’s Forum-Selection Clause is Valid and Mandatory
Baldwin does not contest the validity or enforceability of the Contract’s forum-selection
clause. 38 Nevertheless, even if he did contest the clause, there are insufficient facts and evidence
to “clearly show that enforcement would be unreasonable and unjust, or that the clause was
invalid for such reasons as fraud or overreaching.” 39 Therefore, the Contract’s forum-selection
clause will be regarded as valid and enforceable.
The Contract’s forum-selection clause is also undoubtedly mandatory. In American
Soda, LLP v. U.S. Filter Wastewater Group, Inc., the Tenth Circuit Court of Appeals addressed
whether a forum-selection clause was mandatory or permissive. 40 The forum-selection clause at
issue stated that the parties “submit to the jurisdiction of the Courts of the State of Colorado and
agree that the Courts of the State of Colorado/Arbitrator shall be the exclusive forum for the
resolution of any disputes related to or arising out of this Term Agreement.” 41 Before concluding

35

Id.

36

Id.

37

Id. at 582-83.

38

Amended Complaint, docket no. 24, filed July 21, 2016; Baldwin’s Opposition, docket no. 26, filed Sept. 20,
2016.
39

M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 1916, 32 L. Ed. 2d 513 (1972); Niemi v.
Lasshofer, 770 F.3d 1331, 1351 (10th Cir. 2014).
40

Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 926-27 (10th Cir. 2005).

41

Id. at 924.

7

the clause was mandatory, the Tenth Circuit made clear that it had “adopted the majority rule for
enforcing forum selection clauses.” 42 This majority rule demands that “when venue is specified,
such as when the parties designate a particular county or tribunal, and the designation is
accompanied by mandatory or obligatory language, a forum selection clause will be enforced as
mandatory.” 43 “Where only jurisdiction is specified, [courts] will nonetheless enforce a forumselection clause if there is some additional language indicating the parties' intent to make venue
exclusive.” 44
In applying the majority rule, the American Soda, LLP court focused on the forumselection clause’s language that the parties “consent[ed] to state court jurisdiction” and
“select[ed] the state courts as the ‘exclusive forum.’” 45 The American Soda, LLP court held that
this language indicated the parties’ “intent to make venue exclusive in state court with respect to
any disputes not resolved in arbitration[.]” 46 Therefore, the forum-selection clause was
mandatory. 47
Here, the Contract’s forum-selection clause states:
[T]he parties to this Contract agree that the District Court of Polk County, Iowa
shall have exclusive jurisdiction over any and all disputes which may arise with
respect to this Contract, consent to such jurisdiction, and agree that proper venue
exists therein. 48
Like the forum-selection clause in American Soda, LLP, the Contract’s forum-selection clause is
mandatory because Baldwin and Aviva consented to jurisdiction in Iowa state court and agreed
42

43

Id. at 927.
Id.

44

Id.

45

Id.

46

Id.

47

Id.

48

Contract, docket no. 25-1, filed Aug. 24, 2016 (emphasis added).

8

that the Iowa state court would have exclusive jurisdiction. The Contract’s forum-selection
clause also goes a step further by designating the particular county and tribunal: “District Court
of Polk County, Iowa.” Therefore, the Contract’s forum-selection clause is mandatory.
The Scope of the Contract’s Forum-Selection Clause Encompasses Baldwin’s Tort Claims
Generally, after a forum-selection clause is determined to be mandatory, the publicinterest factors of the forum non conveniens analysis are considered to determine whether
dismissal is warranted. 49 But this is not the typical case because Baldwin and Aviva dispute
whether Baldwin’s tort claims fall within the scope of the Contract’s forum-selection clause. To
resolve this issue, it is necessary to first determine what law applies to the construction of the
forum-selection clause’s scope.
Baldwin contends that Iowa state law should apply because the Tenth Circuit in Yavuz v.
61 MM, Ltd. held that under federal law a court should apply the law chosen by the parties in
their contract when interpreting a forum-selection clause in an international agreement. 50
However, despite professing to follow Yavuz, Baldwin does not cite any Iowa state court case
that aids in the interpretation of the Contract’s forum-selection clause, let alone whether his tort
claims fall within the scope of the forum-selection clause. 51 The only Iowa state court case
Baldwin points to is Davenport Machine & Foundry Company v. Adolph Coors Company, 52 but
this case addressed whether a forum-selection clause could “deprive a court of jurisdiction that it
otherwise ha[d],” 53 which is not the issue here. Baldwin instead points to federal cases from the

49

Chen v. U.S. Bank Nat'l Ass'n, Case No. 2:15-CV-850-TS, 2016 WL 3747584, at *6-7 (D. Utah July 11, 2016).

50

576 F.3d 418, 427-28 (10th Cir. 2009).

51

Baldwin’s Opposition, docket no. 26, filed Sept. 20, 2016.

52

314 N.W.2d 432 (Iowa 1982).

53

Econ. Forms Corp. v. Norman Highway Constructors, Inc., 606 N.W.2d 297, 299 (Iowa 2000).

9

District of Iowa and the Eight Circuit that do not purport to apply Iowa state law, but rather
apply federal common law. 54
On the other hand, Aviva contends that Utah law should apply because of the general rule
that “a federal court sitting in diversity must apply the substantive law of the state in which it
sits, including the forum state's choice-of-law rules.” 55 In Aviva’s view, because Utah’s choiceof-law rules require that procedural matters, such as forum-selection clauses, be interpreted
under Utah law, the scope of the Contract’s forum-selection clause must be governed by Utah
law. 56
This issue is unsettled in the Tenth Circuit. As one court explained, since “[f]orumselection contracts adjudicated in federal courts implicate both state substantive law regarding
contract interpretation and federal procedural law regarding judicial administration[,] … several
courts have struggled with which law to apply.” 57 Some district courts sitting in diversity have
used the law of the forum in which they sit, 58 as suggested by Boyd Rosene & Associates, Inc., 59
while others sitting in diversity have followed Yavuz 60 by applying the law of the forum selected

54

Baldwin’s Opposition at 5-6, 9, docket no. 26, filed Sept. 20, 2016 (citing Terra Int'l, Inc. v. Mississippi Chem.
Corp., 119 F.3d 688, 694-95 (8th Cir. 1997); Witt v. Nation-Wide Horse Transp., Inc., Case No. 4:16-CV-108-RWP,
2016 WL 4033987, at *7-8 (S.D. Iowa July 25, 2016); Jet Co. v. Thor Indus., Inc., Case No. C16-3005-MWB, 2016
WL 1642663, at *3-5 (N.D. Iowa Apr. 25, 2016); High Plains Constr., Inc. v. Gay, 831 F. Supp. 2d 1089, 1099-101
(S.D. Iowa Dec. 21, 2011); Vessel Sys., Inc. v. Sambucks, LLC, Case No. 05-CV-1028-LRR, 2007 WL 715773,
at *7-9 (N.D. Iowa Mar. 6, 2007); Beckley v. Auto Profit Masters, L.L.C., 266 F. Supp. 2d 1001, 1004-06 (S.D. Iowa
June 3, 2003); Terra Int'l, Inc. v. Mississippi Chem. Corp., 922 F. Supp. 1334, 1377-82 (N.D. Iowa Apr. 5, 1996),
aff'd, 119 F.3d 688 (8th Cir. 1997)).
55

Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency, 123 F.3d 1351, 1352-53 (10th Cir. 1997); see also Atl.
Marine Constr. Co., 134 S. Ct. at 582.
56

Reply in Support of Motion to Dismiss Plaintiff’s Amended Complaint Based on Forum Non Conveniens and
Failure to State a Claim at 3-4, docket no. 28, filed October 7, 2016.

57
McKenna v. CDC Software, Inc., Case No. 08-CV-110-EWN-MEH, 2008 WL 4197740, at *5 (D. Colo.
Sept. 9, 2008).
58

Marwell Corp. v. Marwell Corp., Case No. 2:15-CV-205-RJS, 2015 WL 4393289, at *2 (D. Utah July 14, 2015).

59

123 F.3d at 1352-53; see also Atl. Marine Constr. Co., 134 S. Ct. at 582.

60

576 F.3d at 427-28.

10

in the parties’ contract. 61 Still others have applied federal common law. 62 The Tenth Circuit
Court of Appeals has not directly addressed this issue in the diversity context, and declined to do
so on at least one occasion. 63 The only Tenth Circuit Court of Appeals case identified that may
lend support for resolving the issue is Jones v. KP&H LLC, which applied Yavuz when
interpreting a choice-of-venue clause, but Jones is a breach of contract case with no tort claims
alleged and is an unpublished opinion. 64
Despite leaning towards applying Yavuz in this case because of the general proposition
that “when a court interprets a contract … it applies the law that the parties selected in their
contract,” 65 resolving the question is unnecessary. Whether Utah, Iowa, or federal common law
is applied to the Contract’s forum-selection clause, the result is the same: Baldwin’s tort claims
fall within the scope of the Contract’s forum-selection clause.
Under Utah and Iowa Law, Baldwin’s Tort Claims Fall Within the Scope of the Contract’s
Forum-Selection Clause
“The initial step in resolving the choice of law question is to determine whether a conflict
exists between the law of the interested states.” 66 “[T]he choice of law question has practical
significance only if the application of one state's law would yield a different result than would
the law of another state. If no differing result obtains, the court may apply the law of the
forum.” 67

61

Electro-Mech. Corp. v. Riter Eng'g Co., No. 2:10-CV-975-TS, 2011 WL 2118704, at *2 (D. Utah May 25, 2011).

62

Mann v. Auto. Prot. Corp., 777 F. Supp.2d 1234, 1242-43 (D.N.M. Mar. 15, 2011).

63

Excell, Inc., 106 F.3d at 320; cf. Cobank, ACB v. Reorganized Farmers Coop. Ass'n., 170 Fed. App’x 559, 567
(10th Cir. 2006).
64

Jones v. KP&H LLC, 288 Fed. App’x 464, 468 (10th Cir. 2008) (unpublished).

65

Yavuz, 465 F.3d at 427; see also Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency, 174 F.3d 1115, 1121
(10th Cir. 1999).
66

Snyder v. Celsius Energy Co., 866 F. Supp. 1349, 1353 (D. Utah Jan. 10, 1994).

67

Id. at 1353 n.9.

11

Under Utah law, the “purpose in construing or interpreting a contract is to ascertain the
intentions of the parties to the contract.” 68 “In interpreting a contract, [Utah courts] look to the
writing itself to ascertain the parties’ intentions [from the plain meaning of the contractual
language], and [they] consider each contract provision in relation to all of the others, with a view
toward giving effect to all and ignoring none.” 69 Implementing these general principles of
contract interpretation and construction, the Utah Supreme Court has held that a contractual
forum-selection clause can cover tort claims if the clause is “sufficiently broad.” 70
In contrast, it does not appear that Iowa state courts have specifically addressed whether
tort claims can fall within the scope of a contractual forum-selection clause. However, Iowa state
courts apply general principles of contract interpretation and construction when determining the
meaning of contractual language and its legal effect, including the interpretation and construction
of forum-selection clauses. 71 Thus, despite not having opined on this issue, Iowa state courts
would likely determine that torts may fall under the scope of a forum-selection clause depending
on the breadth of the clause’s language, just as the Utah Supreme Court has done. 72 This
conclusion is further supported by the result in the United States Supreme Court’s opinion in
Carnival Cruise Lines, Inc. v. Shute. 73 While not directly analyzing the circumstances under
which a tort claim may fall within the scope of a contractual forum-selection clause, the Supreme
Court concluded that a broadly worded forum-selection clause in a cruise ticket contract was

68

WebBank v. Am. General Annuity Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139.

69

Id. ¶ 18.

70

Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2014 UT 13, ¶ 45, 325 P.3d 70.

71

Pillsbury Co., Inc. v. Wells Dairy, Inc., 752 N.W.2d 430, 435-36 (Iowa 2008); Am. Soil Processing, Inc. v. Iowa
Comprehensive Petroleum Storage Tank Fund Bd., 586 N.W.2d 325, 329-34 (Iowa 1998); Hotchkiss v. Int'l Profit
Assocs., Inc., Case No. 09-1632-PJV, 2011 WL 1378926, at *2-3 (Iowa Ct. App. Apr. 13, 2011).
72

Energy Claims Ltd., 2014 UT 13, ¶ 45.

73

499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991).

12

reasonable and enforceable against a passenger bringing a negligence action. 74 Therefore, no
apparent conflict exists between Utah and Iowa law for determining the scope of the Contract’s
forum-selection clause, and Utah law need only be addressed.
In Energy Claims Limited, the Utah Supreme Court held that alleged torts of breach of
fiduciary duty, conspiracy, and aiding and abetting breaches of fiduciary duty fell under the
scope of a forum-selection clause. 75 The clause stated that “[a]ny dispute, controversy or claim
arising out of or related to the agreement shall be brought exclusively before the courts of
England [and] Wales.” 76 The Utah Supreme Court reasoned that “the use of the term ‘any,’ does
not support a distinction between tort or contract claims.” 77 The court then concluded that the
tort of breach of fiduciary duty “related to” the contract because it “[was] based on terms
embodied in the [contract].” 78 Therefore, the Utah Supreme Court held that the torts “clearly
‘relate to’ the contract and f[e]ll within the broad category of ‘any dispute, controversy or
claim.’” 79
Conversely, in the case of Diversified Striping Systems, Inc. v. Kraus, the Utah Court of
Appeals held that alleged torts of fraud, tortious interference with existing or prospective
economic advantage, and defamation did not fall within the scope of a forum-selection clause. 80
This was because the clause “applied only to ‘action[s] or proceeding[s] seeking to interpret or

74

Id.

75

Energy Claims Ltd., 2014 UT 13, ¶¶ 13, 45.

76

Id. ¶ 12.

77

Id. ¶ 45.

78

Id.

79

Id.

80

2014 UT App 287, ¶¶ 2, 5-6, 341 P.3d 932.

13

enforce the provisions’ of the parties’ agreement.” 81 The court distinguished the clause from the
clause in Energy Claims Limited, which was “much broader,” and determined that “[t]he tort
claims brought by Diversified d[id] not seek to interpret or enforce the provisions of the parties'
agreement.” 82 Thus, the specific language used in the forum-selection clause was paramount in
the court determining that the clause’s scope foreclosed its application to the tort claims.
In essence, Utah courts apply general principles of contract interpretation and
construction to implement a two-part inquiry for determining whether a tort claim falls within the
scope of a contractual forum-selection clause. First, the court determines from the plain language
of the forum-selection clause whether the clause is sufficiently broad to include tort claims. 83
Second, the court looks to the plain language of the clause to determine whether the specific torts
alleged are covered by the scope of the clause. 84
The Contract’s forum-selection clause in this case is sufficiently broad to include tort
claims. The Contract states that “any and all disputes which may arise with respect to this
Contract” are to be litigated in the “District Court of Polk County, Iowa.” 85 Like the forumselection clause in Energy Claims Limited, the Contract’s forum-selection clause’s use of “any
and all” when modifying the term “disputes” does not support a distinction between tort or
contract claims. Therefore, tort claims may fall within the Contract’s forum-selection clause.
The specific torts Baldwin alleges against Aviva are also covered by the scope of the
Contract’s forum-selection clause. The Contract’s use of the terms “with respect to” are

81

Id. ¶ 6.

82

Id.

83

Energy Claims Ltd., 2014 UT 13, ¶ 45.

84

Id.

85

Contract, docket no. 25-1, filed Aug. 24, 2016 (emphasis added).

14

substantially similar to the terms “related to” found in the forum-selection clause in Energy
Claims Limited. The term “related” means “connected by reason of an established or
discoverable relation.” 86 The term “respect” means “a relation or reference to a particular thing
or situation.” 87 And more pointedly, “with respect to” means “with reference to” or “in relation
to.” 88 Given the plain meaning of these terms, there is no meaningful distinction between the
Contract’s use of “with respect to” and the “related to” language in the forum-selection clause in
Energy Claims Limited.
In Energy Claims Limited, the tort of breach of fiduciary duty was covered by the forumselection clause or “related to” the contract because it was based on terms embodied in the
contract, i.e., the parties’ contractual obligations. 89 This is also the case here. Baldwin’s tort
claims of malicious prosecution, abuse of process, and interference with economic relations, at
their core, arise with respect to the terms of Section 15 of the Contract.
Section 15 of the Contract states that Baldwin can be terminated “for cause” in situations
in which he subjects Aviva to liability, fails to comply with state or federal laws, rules, or
regulations, breaches the Contract, commits fraud or misrepresents fact, or engages directly or
indirectly in a rebating scheme. 90 In other words, Section 15 obligated Baldwin to not engage in
this type of conduct.
Aviva explained in its April Letter that Baldwin was terminated for cause because his
involvement in an alleged rebating scheme violated Section 15 of the Contract. 91 Because

86

Merriam-Webster’s Collegiate Dictionary 1050 (11th ed. 2003).

87

Id. at 1061.

88

Id.

89

Energy Claims Ltd., 2014 UT 13, ¶ 45.

90

Contract, docket no. 25-1, filed Aug. 24, 2016.

91

April Letter, docket no. 24-2, filed July 21, 2016.

15

Baldwin was terminated for cause, Aviva was required by Utah law to report him to the Utah
Department of Insurance. 92 Although also reporting Baldwin to the insurance departments of
other states and to the NAIC fraud database, Aviva’s reporting of Baldwin’s alleged fraud led to
the State of Utah filing criminal charges against Baldwin. 93 Aviva’s reporting and the charges
brought by the State of Utah form the basis for each of Baldwin’s tort claims. 94 In other words,
each of Baldwin’s tort claims against Aviva arose in relation to Aviva’s decision to terminate
Baldwin for cause pursuant to Section 15 of the Contract. This is supported by the fact that
Aviva did not report Baldwin after sending him the November Letter, which purported to
terminate him without cause. 95 Therefore, because of the causal connection between the criminal
charges underlying Baldwin’s tort claims and Aviva’s decision to terminate Baldwin’s
employment for cause pursuant to Section 15 of the Contract, Baldwin’s tort claims “ar[o]se with
respect to” the Contract and fall within the scope of the forum-selection clause under Utah and
Iowa law. The same result also occurs under federal common law.
Under Federal Common Law, Baldwin’s Tort Claims Fall Within the Scope of the
Contract’s Forum-Selection Clause
The federal common law test for determining whether a tort claim falls within the scope
of a contractual forum-selection clause is significantly different than the Utah and Iowa approach
of simply applying general principles of contract interpretation and construction. Nevertheless,
the same result is reached under federal common law: Baldwin’s tort claims fall within the scope
of the Contract’s forum-selection clause.

92

Utah Admin. Code R590-244-9(3) (2011).

93

Amended Complaint ¶ 20, docket no. 24, filed July 21, 2016.

94

Id. ¶¶ 25-39.

95

Id. ¶¶ 15-19; November Letter, docket no. 24-1, filed July 21, 2016.

16

Under federal common law, several factors are considered to determine whether tort
claims are within the scope of a contract’s forum-selection clause, including: (1) whether the
parties intended tort claims to be governed by the forum-selection clause as reflected in the
wording of the clause and the facts of the case; 96 (2) whether the “tort claims ‘ultimately depend
on the existence of a contractual relationship’ between the parties[;]” 97 (3) “whether resolution of
the [tort] claims relates to interpretation of the contract[;]” 98 or (4) whether the tort claims
“involve[] the same operative facts as a parallel claim for breach of contract[.]” 99
As to the first factor, Baldwin asserts that Berrett v. Life Insurance Company of the
Southwest, controls the outcome of this case because of its factual similarity with this case. 100
The court in Berrett concluded, without citing authority, that “[w]hether tort claims are to be
governed by forum selection provisions depends upon the intention of the parties reflected in the
wording of particular clauses and the facts of each case.” 101 The court concluded that torts of
intentional interference with business relations, wrongful inducement to breach, and defamation
did not fall within the scope of a forum-selection clause that required “any action at law or in
equity hereunder” to “be brought in Dallas County, Texas.” 102 The court held that the term
“hereunder” was not broad enough to include the alleged torts. 103 The court also determined that

96

Berrett v. Life Ins. Co. of the Sw., 623 F. Supp. 946, 948-49 (D. Utah Dec. 4, 1985); see also Cobank, ACB, 170
Fed. App’x at 567.

97
Terra Int'l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 694 (8th Cir. 1997) (citing Coastal Steel Corp. v.
Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983)).
98

Id. (citing Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988)); Mann, 777 F.Supp.2d
at 1243.
99

Id. (citing Lambert v. Kysar, 983 F.2d 1110, 1121-22 (1st Cir. 1993)); see also Cobank, ACB, 170 Fed. App’x
at 567.
100

Baldwin’s Opposition at 6-8, docket no. 26, filed Sept. 20, 2016.

101

623 F. Supp. at 948-49.

102

Id. at 947, 949.

103

Id. at 949.

17

the alleged torts were “unrelated to the interpretation of the [contract]” and it was “highly
unlikely that in entering into the [contract] the parties contemplated that [the alleged] tort
claims … would be governed by the forum selection clause.” 104
However, many courts since Berrett, including one in this district, have determined that
there is no reason the term “hereunder” should not encompass tort claims. 105 “Reading the word
‘hereunder’ to apply only to a pure breach of contract claim between the parties would be unduly
crabbed and narrow.” 106
But even though the facts in Berrett are similar to this case, the Contract’s forumselection clause does not use the term “hereunder” but uses the broader terms “with respect to.”
This language is broad enough to include the tort claims Baldwin asserts. 107
Moreover, the broad language “any and all disputes” within the Contract’s forumselection clause does not support a distinction between tort or contract claims and indicates an
intent of the parties that tort claims would be governed by the forum-selection clause. 108
Therefore, the parties’ intent as reflected in the wording of the Contract’s forum-selection
clause support Baldwin’s tort claims falling within the scope of the forum-selection clause.
Under the second factor, Baldwin’s tort claims ultimately depend on the existence of the
parties’ contractual relationship. Aviva’s reporting and the subsequent criminal charges that form
the basis for Baldwin’s tort claims arose only as a result of Aviva’s decision to terminate

104

Id.

105

Stiles v. Bankers Healthcare Grp., Inc., 637 Fed. App’x 556, 559 (11th Cir. 2016); Terra Int'l, Inc., 119 F.3d
at 692-94; CAO Grp., Inc. v. Fed.-Mogul Corp., No. 2:08-CV-682-DAK, 2009 WL 562287, at *2 (D. Utah
Mar. 3, 2009).
106

CAO Grp., Inc., 2009 WL 562287, at *2 (citing Picken v. Minuteman Press Int'l, Inc., 854 F. Supp. 909, 911
(N.D. Ga. Aug. 3, 1993)).
107

Supra at 14-16.

108

Energy Claims Ltd., 2014 UT 13, ¶ 45.

18

Baldwin’s employment for cause pursuant to Section 15 of the Contract. 109 Therefore, the
dependency of Baldwin’s tort claims on the parties’ contractual relationship supports the finding
that his tort claims fall within the scope of the Contract’s forum-selection clause.
The third factor for consideration, however, does not support Baldwin’s tort claims being
subject to the Contract’s forum-selection clause. Baldwin’s tort claims do not depend on or relate
to the Contract’s interpretation, but rather, relate to or arise with respect to Aviva’s termination
of the Contract. 110
Nevertheless, the fourth factor—whether the tort claims involve the same operative facts
as a parallel breach of contract claim—supports that Baldwin’s tort claims fall within the scope
of the Contract’s forum-selection clause. A parallel breach of contract claim alleging that Aviva
improperly terminated the Contract for cause would rely upon the same operative facts as alleged
in Baldwin’s tort claims:
•

Baldwin and Aviva entered a valid and enforceable contract; 111

•

Baldwin performed under the Contract; 112

•

Aviva breached the Contract by improperly terminating Baldwin for cause
pursuant to Section 15 of the Contract because Baldwin was not involved in a
rebating scheme; 113 and

•

Baldwin suffered damages as a result of Aviva’s breach, including foreseeable
consequential damages arising from Aviva’s legal duty to report the for cause
termination to the Utah Department of Insurance. 114

109

Supra at 15-16.

110

Id.

111

Amended Complaint ¶ 15, docket no. 24, filed July 21, 2016.

112

Id. ¶¶ 6-12.

113

Id. ¶¶ 6-12, 15-17, 22-23.

114

Id. ¶¶ 18-24.

19

Because the first, second, and fourth factors for consideration under federal common law
each support Baldwin’s tort claims falling within the scope of the Contract’s forum-selection
clause, Baldwin’s tort claims are governed by the clause. 115 Therefore, because the same result is
reached under Utah law, Iowa law, or federal common law, Baldwin’s tort claims are governed
by the Contract’s forum-selection clause, and the forum non conveniens analysis is implemented
to determine whether Baldwin’s claims must be dismissed. 116
Dismissal of Baldwin’s Tort Claims for forum non conveniens is Warranted
Baldwin bears the burden of proving that dismissal of his claims is unwarranted. 117
Because the Contract’s forum-selection clause is mandatory, 118 the usual deference to the
plaintiff’s filing in this forum carries no weight, 119 and the private-interest factors weigh entirely
in favor of dismissing his tort claims without prejudice to their refiling in the District Court of
Polk County, Iowa. 120 Therefore, Baldwin must prove that dismissal of his claims is unwarranted
based solely on the public-interest factors. 121 “The public interest factors include: (1)
administrative difficulties of courts with congested dockets which can be caused by cases not
being filed at their place of origin; (2) the burden of jury duty on members of a community with
no connection to the litigation; (3) the local interest in having localized controversies decided at
home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with

115
Cf. Nelson v. Aramark Sports & Entm't Servs., LLC, Case No. 2:14-CV-474-DN, 2015 WL 1014579, at *4 (D.
Utah Mar. 9, 2015); United States Welding, Inc. v. Tecsys, Inc., Case No. 14-CV-778-REB-MEH, 2014
WL 10321666, at *10 (D. Colo. Dec. 1, 2014); Teran v. GB Int'l, S.P.A., 920 F. Supp. 2d 1176, 1184 (D. Kan.
Jan. 29, 2013); Mann, 777 F. Supp. 2d at 1243.
116

Chen, 2016 WL 3747584, at *6-7.

117

Atl. Marine Constr. Co., 134 S. Ct. at 581.

118

Supra at 7-8.

119

Atl. Marine Constr. Co., 134 S. Ct. at 581.

120

Id. at 582.

121

Id.

20

the governing law.” 122 Courts have also considered fairness and judicial economy as publicinterest factors. 123
Baldwin’s argument regarding the forum non conveniens analysis relies heavily on key
witnesses being located in Utah and that Iowa state courts do not have jurisdiction over these
witnesses. 124 However, these assertions relate to private-interest considerations and,
consequently, have no bearing on the resolution of Aviva’s Motion to Dismiss. 125
With respect to the first public-interest factor, Baldwin has not argued or alleged that
administrative difficulties of the courts support the District of Utah retaining this case. 126
Therefore, Baldwin has not met his burden of proving that dismissal is unwarranted regarding
this factor.
Regarding the second and third public-interest factors, jurors in both Utah and Iowa have
a connection to the litigation and both states have an interest in deciding the controversy.
Baldwin maintains that “[f]orcing him to bring his claims in Iowa would burden the citizens and
judiciary of Iowa with the duty of deciding the validity of claims that are unrelated to their state
based on testimony obtained in Utah.” 127 Baldwin further asserts that his “claims are centered in
Utah[;] Aviva caused criminal proceedings to be filed against [him] in Utah[;] and then, after
performing the investigation Aviva eschewed, a Utah prosecutor dismissed the case in a Utah
court.” 128 However, Baldwin ignores that Aviva is an Iowa based company, made its

122

Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 606 (10th Cir. 1998).

123

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 432, 127 S. Ct. 1184, 1192, 167 L. Ed. 2d 15
(2007).

124

Baldwin’s Opposition at 11, docket no. 26, filed Sept. 20, 2016.

125

Atl. Marine Constr. Co., 134 S. Ct. at 581-82.

126

Baldwin’s Opposition, docket no. 26, filed Sept. 20, 2016.

127

Id. at 11.

128

Id.

21

determination to terminate the Contract for cause in Iowa, and may have its own witnesses from
Iowa. 129 As one court in this Circuit determined:
[T]he burden of jury duty between citizens of [two states] is equal. Jurors in [one
state] are connected to the litigation because that is where Defendants are located,
and jurors in [the other state] are connected because Plaintiff's principal place of
business is located in [that state]. 130
Therefore, because a connection to the controversy is readily apparent for Utah and Iowa and the
burden of duty is the same for jurors from both states, Baldwin has not met his burden of proving
that dismissal is unwarranted regarding the second and third public-interest factors.
The fourth public-interest factor also weighs in favor of dismissing Baldwin’s claims.
Because Baldwin’s tort claims “arise with respect to” the Contract, and thus fall within the scope
of the Contract’s forum-selection clause, 131 the Contract’s choice-of-law provision likely
controls whether Utah or Iowa substantive law would apply to this litigation. The Contract’s
choice-of-law provision states that “[t]his Contract shall be governed by the laws of the State of
Iowa.” 132Thus, Iowa substantive law would likely apply.
However, the United States Supreme Court in Atlantic Marine Construction Company
gave less weight to this choice-of-law factor when the plaintiff filed the case in a forum that was
not dictated by the contract’s forum-selection clause. The court explained,
[F]or the reasons we have explained, the transferee court would apply Virginia
choice-of-law rules. It is true that even these Virginia rules may point to the contract
law of Texas, as the State in which the contract was formed. But at minimum, the
fact that the Virginia court will not be required to apply Texas choice-of-law rules

129

Motion to Dismiss at 4, 14, docket no. 25, filed Aug. 24, 2016; April Letter, docket no. 24-2, filed July 21, 2016;
November Letter, docket no. 24-1, filed July 21, 2016.
130

Envtl. Sales & Serv., Inc. v. Katch Kan USA, LLC, Case No. 14-CV-118-F, 2014 WL 11498467, at *3 (D. Wyo.
Aug. 8, 2014).
131

Supra at 14-16.

132

Contract, docket no. 25-1, filed Aug. 24, 2016.

22

reduces whatever weight the District Court might have given to the public-interest
factor that looks to the familiarity of the transferee court with the applicable law. 133
Similarly, Baldwin filed his case in Utah instead of Iowa, the forum chosen by the parties in the
Contract. Therefore, the choice-of-law factor merits little weight even if the Iowa courts, after
applying Iowa’s choice-of-law rules, determined that Utah substantive law governs the parties’
dispute.
In addition, the United States Supreme Court in Atlantic Marine Construction Company
was not concerned that a federal district court sitting in Virginia might have to apply Texas law:
And, in any event, federal judges routinely apply the law of a State other than the
State in which they sit. We are not aware of any exceptionally arcane features of
Texas contract law that are likely to defy comprehension by a federal judge sitting
in Virginia. 134
The Supreme Court’s reasoning applies equally to Iowa state court judges. Iowa courts have
adopted the “most significant relationship” test when determining what law should apply to a tort
claim. 135 This means that when a tort claim is brought in Iowa state court, the Iowa state court
judge determines what law governs the tort by determining which state “has the most significant
relationship to the occurrence and the parties.” 136 After adopting the “most significant
relationship,” Iowa state courts have applied the law of other states when adjudicating tort
claims. 137 Further, if Iowa courts were to apply Utah law, Utah tort law does not have “arcane
features” that would “defy comprehension” by Iowa state court judges. 138 Instead, Utah tort law,

133

Atl. Marine Constr. Co., 134 S. Ct. at 584.

134

Id.

135

Cameron v. Hardisty, 407 N.W.2d 595, 597 (Iowa 1987).

136

Id. (quoting Restatement (Second) of Conflicts § 145(1)).

137

Zeman v. Canton State Bank, 211 N.W.2d 346, 348-49 (Iowa 1973); Zurn v. State Farm Mut. Auto. Ins. Co., 482
N.W.2d 923, 924 (Iowa 1992).
138

Atl. Marine Constr. Co., 134 S. Ct. at 584.

23

at least with regard to the torts of malicious prosecution, abuse of process, and interference with
economic relations, is sufficiently similar to Iowa tort law. 139
As to the last public-interest factors of fairness and judicial economy, Baldwin again has
not met his burden. He does not make any argument or allegations regarding these factors, 140
except possibly with his reference to private-interest factors that have no bearing on the
resolution of Aviva’s Motion to Dismiss. Baldwin does not generally allege that having to refile
his case in Iowa would be unfair or that judicial economy would be better served by keeping the
case in the District of Utah. 141 Accordingly, these factors weigh in favor of dismissing Baldwin’s
claims.
Because Baldwin has failed to meet his burden of proving that dismissal is unwarranted
under the public-interest factors, Baldwin has not shown that this is the “exceptional case[]” in
which a forum-selection clause should not be given controlling weight. 142 Therefore, dismissal of
Baldwin’s claims for forum non conveniens is warranted. Because dismissal of Baldwin’s claims
for forum non conveniens is warranted, it is unnecessary to address Aviva’s alternate argument
for dismissal under Rule 12(b)(6) for failure to state a claim. Accordingly, Aviva’s Motion to
Dismiss 143 is GRANTED and Baldwin’s claims are DISMISSED without prejudice to their
refiling in the District Court of Polk County, Iowa.

139

Compare Employers Mut. Cas. Co. v. Cedar Rapids Television Co., 552 N.W.2d 639, 643 (Iowa 1996), and
Fuller v. Local Union No. 106 of the United Bhd. of Carpenters & Joiners of Am., 567 N.W.2d 419, 421-22
(Iowa 1997), and Seneca Waste Sols., Inc. v. D & K Managing Consultants, LLC, Case No. 13-1777, 2015
WL 567272, at *9 (Iowa Ct. App. Feb. 11, 2015), with Callioux v. Progressive Ins. Co., 745 P.2d 838, 843 (Utah
Ct. App. 1987), and Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶¶ 63, 65, 116 P.3d 323, and Eldridge v.
Johndrow, 2015 UT 21, ¶¶ 13-14, 345 P.3d 553.
140

Baldwin’s Opposition, docket no. 26, filed Sept. 20, 2016.

141

Id.

142

Atl. Marine Constr. Co., 134 S. Ct. at 581 (quoting Stewart Org., Inc., 487 U.S. at 33).

143

Motion to Dismiss, docket no. 25, filed Aug. 24, 2016.

24

ORDER
IT IS HEREBY ORDERED that:
(1)

Aviva’s Motion to Dismiss 144 is GRANTED; and

(2)

Baldwin’s claims are DISMISSED without prejudice to their refiling in the
District Court of Polk County, Iowa.

The Clerk is directed to close the case.
Signed February 23, 2017.
BY THE COURT

________________________________________
District Judge David Nuffer

144

Id.

25