green
Positive treatment
Quoted verbatim 1×
34.8 score
“the miller act venue provision exists for the convenience of the parties is subject to variation by their agreement”
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978
2002
2026
Top citers, strongest first. 49 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
United States of America f/u/b/o Aarow Electrical Solutions, LLC v. Liberty Mutual Insurance Co.
the miller act venue provision exists for the convenience of the parties is subject to variation by their agreement
discussed
Cited as authority (rule)
Case transferred to the Southern District of New YorkJohn A. Mansour v. Morgan Stanley
Cf. In re Fireman’s Fund Inc. Cos., 588 F.2d 93, 95 (5th Cir. 1979) (finding that the Miller Act’s venue provision may be varied by contractual forum selection clauses); Mora v. Albertson’s, L.L.C., EP-15-CV-00071-FM, 2015 WL 13804487 , at *3 (W.D.
discussed
Cited as authority (rule)
John A. Mansour v. Morgan Stanley
Cf. In re Fireman’s Fund Inc. Cos., 588 F.2d 93, 95 (5th Cir. 1979) (finding that the Miller Act’s venue provision may be varied by contractual forum selection clauses); Mora v. Albertson’s, L.L.C., EP-15-CV-00071-FM, 2015 WL 13804487 , at *3 (W.D.
cited
Cited as authority (rule)
Timberline Construction Group, LLC v. APTIM Federal Services, LLC
Cos., 588 F.2d 93, 95 (5th Cir. 1979),4 private parties may agree to litigate Miller Act claims in other venues in accordance with a valid forum-selection clause.
discussed
Cited as authority (rule)
Greater St. Stephen Ministries v. Mt. Hawley Insurance Company
In sum, the intended effect of §22:442 is to prevent plaintiffs from bringing suit against surplus lines carriers in 46 In re Fireman’s Fund Insurance Co., Inc., 588 F.2d 93, 94 (5th Cir. 1979). 47 Id. 48 See Al Copeland Invs., L.L.C. v. First Specialty Ins.
cited
Cited as authority (rule)
Hammer & Steel, Inc. v. TL Hawk, LLC
Companies, Inc., 588 F.2d 93, 94 (5th Cir. 1979), Arrow Plumbing & Heating, Inc. v. N. Am.
cited
Cited as authority (rule)
Accelerant Specialty Insurance Company v. Tran
Cos., Inc., 588 F.2d 93, 95 (5th Cir. 1979).1 Plaintiff first asserts that Defendants waived any objections to venue by assenting to the forum-selection clause in the insurance policy.
discussed
Cited as authority (rule)
United States of America v. Rockford Corporation
Companies, Inc., 588 F.2d 93, 95 (5th Cir. 1979) (holding that the Miller Act venue requirement, which was enacted for the benefit of defendants, can be waived by a valid forum-selection clause).
discussed
Cited as authority (rule)
United States of America v. Rockford Corporation
Companies, Inc., 588 F.2d 93, 95 (5th Cir. 1979) (holding that the Miller Act venue requirement, which was enacted for the benefit of defendants, can be waived by a valid forum-selection clause).
discussed
Cited as authority (rule)
HAMBRIC STEEL AND FABRICATION INC v. LEEBCOR SERVICES LLC
Cos., Inc., 588 F.2d 93, 95 (5th Cir. 1979) (affirming transfer of a Miller Act case to another federal court to enforce a forum selection clause).2 Hambric responds that the forum 1 Cincinnati also initially moved to dismiss Hambric’s Miller Act claims as untimely, but Cincinnati withdrew that argument.
cited
Cited as authority (rule)
United States of America v. Gulf Building
Cos., 588 F.2d 93, 95 (5th Cir.1979);2 2 The Eleventh Circuit recognizes as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,1981.
cited
Cited as authority (rule)
United States of America v. Gulf Building
Cos., 588 F.2d 93, 95 (5th Cir.1979);2 2 The Eleventh Circuit recognizes as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,1981.
discussed
Cited as authority (rule)
John E. Kelly & Sons Electrical Construction, Inc. v. Hartford Fire Insurance Company
Companies, Inc., 588 F.2d 93, 95 (5th Cir. 1979) (Miller Act provision “is not jurisdictional but only a venue provision . . . [which] may be varied by contract”) (citations omitted).
discussed
Cited as authority (rule)
John S. Stritzinger v. Christiana Trust, a Division of Wilmington Savings Fund Society, FSB
(2×)
Cos., 588 F.2d 93, 94-95 (5th Cir. 1979) (upholding a transfer to federal court in New Jersey, honoring a forum selection clause, in spite of venue rule appearing to fix venue at the place of the contract's performance in Louisiana); Texas Source Group, Inc. v. CCH Inc., 967 F. Supp. 234, 238 (S.D.
cited
Cited as authority (rule)
Wildfire Group, LLC v. Prime Insurance
Cos., 588 F.2d 93, 95 (5th Cir.1979) (applying Zapata to a transfer under 28 U.S.C. § 1404 (a)).
discussed
Cited as authority (rule)
In Re Atlantic Marine Construction Co.
(2×)
Cos., 588 F.2d 93, 95 (5th Cir. 1979) (citations omitted) (denying a petition for writ of mandamus seeking reversal of a district court’s decision to transfer an action to a venue contemplated by a forum-selection clause pursuant to a motion to transfer based on § 1404(a)).
examined
Cited as authority (rule)
United States ex rel. Brown Minneapolis Tank Co. v. Kinley Construction Co.
(3×)
Cos., 588 F.2d 93, 95 (5th Cir.1979) (holding the case for overriding the Miller Act particularly strong where forum selection clause was suggested by defendants — the parties the act was designed to protect). 70 F.3d at 1117 .
discussed
Cited as authority (rule)
Stanley Smith Drywall, Inc. v. Munlake Contractors, Inc.
(2×)
To the extent that the Plaintiffs claims against Munlake overlap, this Court relies on its precedent established under the Miller Act, the federal equivalent and precur sor to Mississippi’s public bond statute, which contains a venue provision similar to Mississippi’s. 4 In In re Fireman’s Fund Insurance Companies, the subcontractor instigated a Miller Act claim against the contractor and its surety in the Eastern District of Louisiana. 588 F.2d 93, 94 (5th Cir.1979).
discussed
Cited as authority (rule)
Belcher-Robinson, L.L.C. v. Linamar Corp.
Cos., 588 F.2d 93, 95 (5th Cir.1979) (applying Zapata to a transfer under 28 U.S.C. § 1404 (a)). 1 The Supreme Court made clear in a later case that the Zapata standard did not govern all considerations of forum-selection clauses.
discussed
Cited as authority (rule)
Collin County v. Siemens Business Services, Inc.
Cos., 588 F.2d 93, 95 (5th Cir.1979) (“Where the parties have by contract selected a forum, it is incumbent upon the party resisting to establish that the choice was unreasonable, unfair, or unjust.” (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 , 92 S.Ct. 1907 , 32 L.Ed.2d 513 (1972))).
cited
Cited as authority (rule)
Tel-Com Mgmt., Inc. v. Waveland Resort Inns, Inc.
Cos., 588 F.2d 93, 95 (5th Cir.1979)). ¶ 8.
discussed
Cited as authority (rule)
Maley v. Design Benefits Plan, Inc.
See, e.g., Seattle-First National Bank v. Manges, 900 F.2d 795 , 799 (5th Cir.1990) (citing M/S Bremen, 407 U.S. at 15 , 92 S.Ct. 1907 ).; In re Fireman’s Fund Insurance Cos., 588 F.2d 93, 95 (5th Cir.1979).
cited
Cited as authority (rule)
Tel-Com Management, Inc. v. Waveland Resort Inns, Inc.
Cos., 588 F.2d 93, 95 (5th Cir. 1979)). ¶8.
cited
Cited as authority (rule)
Hyland Lakes Spuds, Inc. v. H.C. Schmieding Produce Co.
Cos., 588 F.2d 93, 94 (5th Cir.1979) (“venue ... shall be laid in the County of Essex”); Intermountain Sys., Inc. v. Edsall Constr.
discussed
Cited as authority (rule)
Leslie v. Lloyds of London
(2×)
Cos., 588 F.2d 93, 94 (5th Cir. 1979) (approving order transferring venue pursuant to 28 U.S.C. § 1404 (a)). 9 See Shell, 55 F.3d at 1229 (declining to decide the issue on the ground that federal and Ohio law treat forum selection clauses similarly); Richards, 107 F.3d at 1426-29 (applying federal law); Bonny, 3 F.3d at 159-61 (same); Hugel, 999 F.2d at 209-11 (same); Riley, 969 F.2d at 956-58 (same); Stamm, 960 F. Supp. at 728-30 (same). 10 (1972), a decision we discuss in detail infra, the Court set forth a framework of enforceability standards to be applied by federal courts sitting in adm…
cited
Cited as authority (rule)
International Software Systems, Inc. v. Amplicon, Inc., Doing Business as Amplicon Financial
Cos., 588 F.2d 93, 95 (5th Cir.1979).
discussed
Cited as authority (rule)
United States v. St. Paul Mercury Insurance Company
Cos., 588 F.2d 93, 95 (5th Cir.1979) (holding the case for overriding the Miller Act particularly strong where forum selection clause was suggested by defendants--the parties the act was designed to protect). 9 We are persuaded by our sister circuits and agree that a valid forum selection clause supersedes the Miller Act's venue provision.
discussed
Cited as authority (rule)
United States ex rel. B & D Mechanical Contractors, Inc. v. St. Paul Mercury Insurance
Cos., 588 F.2d 93, 95 (5th Cir.1979) (holding the case for overriding the Miller Act particularly strong where forum selection clause was suggested by defendants — the parties the act was designed to protect).
discussed
Cited as authority (rule)
Fgs Constructors, Inc. v. Carlow
Co., 588 F.2d 93, 94-95 (5th Cir.1979) (holding that the Miller Act venue requirement, enacted for the benefit of defendants, can be waived by a valid forum selection clause in a contract); ..." Dist.
discussed
Cited as authority (rule)
FGS Constructors, Inc. v. Carlow
Co., 588 F.2d 93, 94-95 (5th Cir.1979) (holding that the Miller Act venue requirement, enacted for the benefit of defendants, can be waived by a valid forum selection clause in a contract); ...” Dist.
cited
Cited as authority (rule)
USA for Pittsburgh v. G & C Enterprises
Cos., 588 F.2d 93, 95 (5th Cir. 1979); _________________________ Arrow Plumbing & Heating, Inc. v. North Amer.
cited
Cited as authority (rule)
United States Ex Rel. Pittsburgh Tank & Tower, Inc. v. G & C Enterprises, Inc.
Cos., 588 F.2d 93, 95 (5th Cir.1979); Arrow Plumbing & Heating, Inc. v. North Amer.
cited
Cited as authority (rule)
Hunter Distributing Co., Inc. v. Pure Beverage Partners
See, e.g., Manges, 900 F.2d at 799; In re Fireman’s Fund Insurance Cos., 588 F.2d 93, 95 (5th Cir. 1979).
discussed
Cited as authority (rule)
Perkins v. CCH Computax, Inc.
(2×)
Cos., 588 F.2d 93, 95 (5th Cir. 1979); Fireman’s Fund American Ins.
cited
Cited as authority (rule)
Tel-Phonic Services, Inc., William Kirk, and John Bowen v. Tbs International, Inc. A/K/A Dy-Con, International, Inc. And the Dispatch Printing Company
Cos., 588 F.2d 93, 94-95 (5th Cir.1979), in which this Court noted that a district court’s transfer according to a forum-selection clause was a transfer under § 1404(a)) rather than § 1406(a).
cited
Cited as authority (rule)
Paper Express, Limited, an Illinois Corporation v. Pfankuch Maschinen Gmbh, a German Corporation
Cos., 588 F.2d 93, 94 (5th Cir.1979) (“venue ... shall be laid in the County of Essex”); Intermountain Sys., Inc. v. Edsall Constr.
discussed
Cited as authority (rule)
John K. Forsythe v. Saudi Arabian Airlines Corp.
Companies, 588 F.2d 93, 95 (5th Cir.1979) ("Where the parties have by contract selected a forum, it is incumbent upon the party resisting to establish that the choice was unreasonable, unfair, or unjust.") Forsythe’s attempt to distinguish his contract based on Saudi's greater bargaining position was unpersuasive, as the cases cited in his brief were dissimilar to these facts and did not involve international relations. 3 .As explained below, we construe this motion as a Rule 59(e) motion to alter or amend a judgment. 4 .
discussed
Cited as authority (rule)
Docksider, Ltd. v. Sea Technology, Ltd.
The Fifth Circuit in In re Fireman's Fund Insurance Companies, 588 F.2d 93, 94 (5th Cir.1979) held that a venue provision which stated: "If the Sub-contractor shall institute any suit or action for the enforcement of any of the obligations under this agreement, the venue of such suit or action shall be laid in the County of Essex and State of New Jersey" was valid to lay venue in New Jersey. 12 The prevailing rule is clear from these and other cases that where venue is specified with mandatory language the clause will be enforced.
discussed
Cited as authority (rule)
Docksider, Ltd. v. Sea Technology, Ltd.
The Fifth Circuit in In re Fireman’s Fund Insurance Companies, 588 F.2d 93, 94 (5th Cir.1979) held that a venue provision which stated: “If the Sub-contractor shall institute any suit or action for the enforcement of any of the obligations under this agreement, the venue of such suit or action shall be laid in the County of Essex and State of New Jersey” was valid to lay venue in New Jersey.
cited
Cited as authority (rule)
Sun World Lines, Ltd. And Double Cee Investments, Ltd. v. March Shipping Corporation and March Shipping Passenger Services, Peter Deilmann
Cos., 588 F.2d 93, 95 (5th Cir.1979) (per curiam).
cited
Cited as authority (rule)
Houston International Televideo, Inc. v. Technicolor, Inc.
Companies, Inc., 588 F.2d 93, 95 (5th Cir.1979) (“The venue provision in the agreement appears to be a voluntary, bargained for arrangement between two commercially strong contracting parties.”).
discussed
Cited as authority (rule)
Furry v. First National Monetary Corp.
(2×)
also: Cited "see"
The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9-12 , 92 S.Ct. 1907, 1912-14 , 32 L.Ed.2d 513 (1972); Dracos v. Hellenic Lines Ltd., 705 F.2d 1392, 1394 (4th Cir.1983); Bense v. Interstate Battery Systems of America, 683 F.2d 718, 721-2 (2nd Cir.1982); In re Fireman’s Fund Insurance Companies, Inc., 588 F.2d 93, 95 (5th Cir.1979); Intermountain Systems, Inc. v. Edsall Construction Co., 575 F.Supp. 1195, 1197 (D.Colo.1983); D’Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708, 711 (D.R.I.1983); Richardson Greenshields Securities, Inc. v. Metz, 566 F.Supp. 131, 133 (S.D.N.Y.1983); Richa…
cited
Cited as authority (rule)
Pelleport Investors, Inc. v. Budco Quality Theatres, Inc.
Cos., 588 F.2d 93, 95 (5th Cir.1979) (per curiam); Fireman’s Fund American Ins.
cited
Cited as authority (rule)
Nos. 83-6228, 83-7678
Cos., 588 F.2d 93, 95 (5th Cir.1979) (per curiam); Fireman's Fund American Ins.
discussed
Cited as authority (rule)
Kline v. Kawai America Corp.
Companies, Inc., 588 F.2d 93, 95 (5th Cir. 1979); Kolendo v. Jerell, Inc., 489 F.Supp. 983, 985 (S.D.W.Va.1980); Dick Proctor Imports, Inc. v. Sumitomo Corp. of America, 486 F.Supp. 815, 818 (E.D.Mo.1980); Wellmore Coal Corp. v. Gates Learjet Corp., 475 F.Supp. 1140, 1143 (W.D.Va.1979); Taylor v. Titan Midwest Const. Corp., 474 F.Supp. 145, 148 (N.D.
cited
Cited as authority (rule)
United States Ex Rel. Caswell Equipment Co. v. Fidelity & Deposit Co.
In re Fireman’s Fund, 588 F.2d 93, 95 (5th Cir. 1979).
discussed
Cited "see"
Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc.
See, In re Fireman’s Fund Insurance Co., 588 F.2d 93 (5th Cir.1979); Furry v. First National Monetary Corporation, 602 F.Supp. 6 (W.D.Okla.1984); D’Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708 (D.R.I.1983); Hoffman v. Burroughs Corp., 571 F.Supp. 545 (N.D.Tex.1982); Kline v. Kawai America Corp., 498 F.Supp. 868 (D.Minn.1980); Full-Sight Contact Lens v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y.1978).
Retrieving the full opinion text from the archive…
In the Matter of Georgia Paneling Supply, Inc., Bankrupt. International Paper Company, Hampton Lumber Sales Company, White Lumber Sales, Inc., Quinault Pacific Corporation, and Gold Rey Forest Products, Inc.
v.
John C. Pennington, Trustee and Aetna Business Credit, Inc.
v.
John C. Pennington, Trustee and Aetna Business Credit, Inc.
78-8283.
Court of Appeals for the Fifth Circuit.
Dec 29, 1978.
588 F.2d 93
Cited by 3 opinions | Published
In the Matter of GEORGIA PANELING SUPPLY, INC., Bankrupt.
INTERNATIONAL PAPER COMPANY, Hampton Lumber Sales Company,
White Lumber Sales, Inc., Quinault Pacific
Corporation, and Gold Rey Forest
Products, Inc., Petitioners,
v.
John C. PENNINGTON, Trustee and Aetna Business Credit, Inc.,
Respondents.
No. 78-8283.
United States Court of Appeals,
Fifth Circuit.
Dec. 29, 1978.
Winford Kent Bishop, Atlanta, Ga., for petitioners.
Douglas L. Cronkright, C. Edward Dobbs, John C. Pennington, Atlanta, Ga., for respondents.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before GODBOLD, RONEY and RUBIN, Circuit Judges.
ORDER:
[*~93]1
Because of the allegations of judicial misconduct contained in the petition for rehearing, the panel has decided that the rehearing should be granted, that the previous panel opinion, 581 F.2d 520, should be vacated, and that leave to appeal should be granted.
[*~94]2
No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the Petition for Rehearing En Banc is DENIED.
[*~95]3
It is so ordered.