forum selection clause in Arizona

2023See Morgan Bank (Del.) v. Wilson, 164 Ariz. 535, 537 (App. 1990).

2022See, e.g., Bennett, 201 Ariz. at 377, ¶ 20 ; Morgan Bank (Del.) v. Wilson, 164 Ariz. 535, 537 (App. 1990). ¶9 Arizona has not directly addressed when a forum selection clause can be invalidated.

2022Mousseux suggests that a forum selection clause could be invalidated if it was the result of fraud or its enforcement at the time of litigation is so unreasonable that it deprives a litigant of his day in court. 123 Ariz. at 613 ; Bennett, 201 Ariz. at 377, ¶¶ 19-20 .

2012In Arizona, “a forum selection clause that is fairly bargained for and not the result of fraud will be enforced so long as to do so is reasonable at the time of litigation.” Id. at 61 , 597 P.2d at 543 .

2022See, e.g., Bennett, 201 Ariz. at 377, ¶ 20 ; Morgan Bank (Del.) v. Wilson, 164 Ariz. 535, 537 (App. 1990). ¶9 Arizona has not directly addressed when a forum selection clause can be invalidated.

2022Mousseux suggests that a forum selection clause could be invalidated if it was the result of fraud or its enforcement at the time of litigation is so unreasonable that it deprives a litigant of his day in court. 123 Ariz. at 613 ; Bennett, 201 Ariz. at 377, ¶¶ 19-20 .

2020See Dunn v. FastMed Urgent Care PC, 245 Ariz. 35 , 38, ¶ 9 (App. 2018) (“Dismissal pursuant to a forum-selection clause with leave to refile in another state is an appealable order under A.R.S. § 12-2101(A)(3).”); Dusold v. Porta-John Corp., 167 Ariz. 358, 361 (App. 1990) (holding that A.R.S. § 12-2101(A)(3)’s predecessor statute provided basis for appellate jurisdiction to consider court’s order dismissing action and transferring to another state for arbitration).

2018See Dusold v. Porta-John Corp. , 167 Ariz. 358 , 361, 807 P.2d 526 , 529 (App. 1990) (finding appellate jurisdiction under predecessor to A.R.S. § 12-2101(A)(3)"to consider at least the dismissal and jurisdictional aspects of the trial court's order (transfer of arbitration to Michigan)"); see also Russo v. Barger , 239 Ariz. 100 , 103, ¶¶ 9-10, 366 P.3d 577 , 580 (App. 2016) (finding appellate jurisdiction after dismissal based on a forum-selection clause). 1 II.

2012Servs., 216 Ariz. 424, ¶ 37 , 167 P.3d 111, 121 (App.2007). ¶ 12 To determine whether the forum selection clause in the lease amendment applied to Kader, we review the relevant documents — the lease contract, the lease amendment, and the guarantee — to ascertain the parties’ intent.

2012Servs., 216 Ariz. 424, ¶ 37 , 167 P.3d 111, 121 (App.2007). ¶ 12 To determine whether the forum selection clause in the lease amendment applied to Kader, we review the relevant documents — the lease contract, the lease amendment, and the guarantee — to ascertain the parties’ intent.

2012Sav. & Loan Ass’n v. Sun-Amp Sys., Inc., 172 Ariz. 553, 560 , 838 P.2d 1314, 1321 (App.1992) (“[Cjourts are not constrained by textual omissions to abandon common sense and experience or to ignore the surrounding circumstances of an agreement.”). ¶ 16 Kader further contends the forum selection clause of the lease amendment is not enforceable because it is unreasonable.

2012Sav. & Loan Ass’n v. Sun-Amp Sys., Inc., 172 Ariz. 553, 560 , 838 P.2d 1314, 1321 (App.1992) (“[Cjourts are not constrained by textual omissions to abandon common sense and experience or to ignore the surrounding circumstances of an agreement.”). ¶ 16 Kader further contends the forum selection clause of the lease amendment is not enforceable because it is unreasonable.

2012Id. at 265 , 681 P.2d at 417 . ¶ 13 Based on the plain language of the documents in this ease, we conclude the parties intended the forum selection clause of the lease amendment to apply to Kader.

2012Id. at 265 , 681 P.2d at 417 . ¶ 13 Based on the plain language of the documents in this ease, we conclude the parties intended the forum selection clause of the lease amendment to apply to Kader.

2012See Lemme, 631 F.Supp. at 461 ; see also United Airlines, Inc. v. ALG, Inc., 873 F.Supp. 147, 151 (N.D.Ill.1995). ¶ 15 But even were we to find the language of the documents ambiguous, in looking to the circumstances of the transactions, we nevertheless conclude that the parties intended to apply the forum selection clause to Kader as guarantor.

2012See Lemme, 631 F.Supp. at 461 ; see also United Airlines, Inc. v. ALG, Inc., 873 F.Supp. 147, 151 (N.D.Ill.1995). ¶ 15 But even were we to find the language of the documents ambiguous, in looking to the circumstances of the transactions, we nevertheless conclude that the parties intended to apply the forum selection clause to Kader as guarantor.

2012See Lemme, 631 F.Supp. at 461 ; see also United Airlines, Inc. v. ALG, Inc., 873 F.Supp. 147, 151 (N.D.Ill.1995). ¶ 15 But even were we to find the language of the documents ambiguous, in looking to the circumstances of the transactions, we nevertheless conclude that the parties intended to apply the forum selection clause to Kader as guarantor.

2012See Lemme, 631 F.Supp. at 461 ; see also United Airlines, Inc. v. ALG, Inc., 873 F.Supp. 147, 151 (N.D.Ill.1995). ¶ 15 But even were we to find the language of the documents ambiguous, in looking to the circumstances of the transactions, we nevertheless conclude that the parties intended to apply the forum selection clause to Kader as guarantor.

2012Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, ¶ 8 , 224 P.3d 988, 990 (App.2010).

2012Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, ¶ 8 , 224 P.3d 988, 990 (App.2010).

2012See Long John Silver’s, Inc. v. DIWA III, Inc., 650 F.Supp.2d 612, 626 (E.D.Ky.2009); see also Taylor v. State Farm Mut.

2012See Long John Silver’s, Inc. v. DIWA III, Inc., 650 F. Supp. 2d 612, 626 (E.D.

2020Co., 334 F. App’x 821 , 823 (9th Cir. 2009) (citing Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509 , 514 n.5 (9th Cir. 1988)), which enforced a forum selection clause against a nonparty to an agreement because the nonparty’s alleged conduct was so “closely related” to the contractual relationship. ¶10 Freer appealed, arguing that because he was not a party to the agreement the trial court erred in granting summary judgment for CLA.

2019Holdings LLC, 909 F.3d 48, 64 (3d Cir. 2018); see also Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) (“In order to bind a non-party to a forum selection clause, the party must be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it will be bound.”) (citing Manetti- Farrow, Inc., 858 F.2d at 514 n.5). ¶16 Freer argues that Manetti-Farrow applies only to third-party beneficiaries of the underlying contract.

2016Taylor implicitly recognized that a forum selection clause is subject to waiver, though we concluded in that case that the act of opposing a motion to amend on the basis that there was a pending motion to dismiss premised on a forum selection clause did not “rise to the level of a general appearance requesting affirmative relief thereby waiving an objection to the assertion of personal jurisdiction.” Id. at 437 , 778 P.2d at 1333 . ¶ 19 Had Appellees timely sought dismissal based on the forum selection clause, years of litigation and expense could have been avoided, as well as the expenditure

2016Taylor implicitly recognized that a forum selection clause is subject to waiver, though we concluded in that case that the act of opposing a motion to amend on the basis that there was a pending motion to dismiss premised on a forum selection clause did not “rise to the level of a general appearance requesting affirmative relief thereby waiving an objection to the assertion of personal jurisdiction.” Id. at 437 , 778 P.2d at 1333 . ¶ 19 Had Appellees timely sought dismissal based on the forum selection clause, years of litigation and expense could have been avoided, as well as the expenditure

2012Thus, it has failed to establish that enforcement of the forum selection clause deprived it of its day in court. ¶ 19 Kader nevertheless maintains it was unreasonable for the trial court to exercise jurisdiction in this case because the parties have no connection to Arizona, which “offend[s] ‘traditional notions of fair play and substantial justice.’” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), quoting Int’l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945).

2012Thus, it has failed to establish that enforcement of the forum selection clause deprived it of its day in court. ¶ 19 Kader nevertheless maintains it was unreasonable for the trial court to exercise jurisdiction in this case because the parties have no connection to Arizona, which “offend[s] ‘traditional notions of fair play and substantial justice.’” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), quoting Int’l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945).

2012Thus, it has failed to establish that enforcement of the forum selection clause deprived it of its day in court. ¶ 19 Kader nevertheless maintains it was unreasonable for the trial court to exercise jurisdiction in this case because the parties have no connection to Arizona, which “offend[s] ‘traditional notions of fair play and substantial justice.’” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), quoting Int’l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945).

2012Thus, it has failed to establish that enforcement of the forum selection clause deprived it of its day in court. ¶ 19 Kader nevertheless maintains it was unreasonable for the trial court to exercise jurisdiction in this case because the parties have no connection to Arizona, which “offend[s] ‘traditional notions of fair play and substantial justice.’” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), quoting Int’l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945).

2025Claiming protection within that provision at this point is therefore a tall order. ¶11 Henderson seeks refuge in the closely related party doctrine, which some courts have recognized to “permit non-signatories to an agreement to be bound by, and to enforce, forum selection clauses where, under the circumstances, the non-signatories enjoyed a sufficiently close nexus to the dispute or to another signatory such that it was foreseeable that they would be bound.” Firexo, Inc. v. Firexo Group Ltd., 99 F.4th 304, 312 (6th Cir. 2024) (quoting Franlink Inc. v. BACE Servs., Inc., 50 F.4th 432, 439 (5th

2025MOSKOWITZ/SULLIVAN Opinion of the Court ¶15 As the U.S. Court of Appeals for the Fifth Circuit has observed, federal courts that have adopted the doctrine have applied a number of factors to determine whether it applies in a particular case: “common ownership, involvement in the agreement’s negotiations, signatory status of the party opposing the forum selection clause, the type of claims and allegations at issue, control by secret principals, the posture of the case, direct benefits received, and awareness of the agreement and its relevant terms.” Franlink, 50 F.4th at 440 .

2025Claiming protection within that provision at this point is therefore a tall order. ¶11 Henderson seeks refuge in the closely related party doctrine, which some courts have recognized to “permit non-signatories to an agreement to be bound by, and to enforce, forum selection clauses where, under the circumstances, the non-signatories enjoyed a sufficiently close nexus to the dispute or to another signatory such that it was foreseeable that they would be bound.” Firexo, Inc. v. Firexo Group Ltd., 99 F.4th 304, 312 (6th Cir. 2024) (quoting Franlink Inc. v. BACE Servs., Inc., 50 F.4th 432, 439 (5th

2025It appeared ipse dixit and continues to exist primarily because no court has rejected it.” Firexo, 99 F.4th at 326 . ¶17 Henderson argues that it is unfair and inefficient to litigate the same matter in multiple courts at the same time when the contract contains a forum selection clause and that the closely related party doctrine is necessary to prevent evasion of inconvenient forum selection clauses.

2023“But when the exercise of jurisdiction is based on the parties’ consent through a forum selection clause, courts need not conduct an analysis of the defendant's contacts with the forum.” Desarrollo, 229 Ariz. at 373, ¶ 19 .

2022Bennett v. Appaloosa Horse Club, 201 Ariz. 372, 375, ¶ 11 (App. 2001); see also Muscat by Berman v. Creative Innervisions LLC, 244 Ariz. 194 , 197, ¶ 7 (App. 2017) (reviewing a superior court’s legal ruling on a motion for judgment on the pleadings de novo).2 ¶8 Fifty years ago, the United States Supreme Court held forum selection clauses presumptively enforceable in M/S Bremen v. Zapata Off- Shore Co., 407 U.S. 1, 10 (1972) (adopting the view “that such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circum

2022Westlake’s position is consistent with Supreme Court precedent: [F]orum-selection clauses “should be given full effect” when “a freely negotiated private [] agreement (is) unaffected by fraud . . . .” [Bremen,] 407 U.S. at 13 . . . .

2022See Keystone Floor & More, LLC v. Ariz. Registrar of Contractors, 223 Ariz. 27, 30, ¶ 10 (App. 2009) (“Fees may be recovered when a contract is the ‘cause or origin’ of the dispute.” (citation omitted)).

2022Similarly, the Ninth Circuit Court of Appeals has stated that a forum selection clause can be invalidated: (1) “if the inclusion of the clause in the agreement was the product of fraud or overreaching”; (2) “if the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced”; [or] (3) “if enforcement would contravene a strong public policy of the forum in which suit is brought.” Petersen v. Boeing Co., 715 F.3d 276, 280 (9th Cir. 2013) (quoting Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004) (quoting Richards v. Lloyd’s

2022See Petersen, 715 F.3d at 283 (finding the district court abused its discretion by not “holding an evidentiary hearing as to whether Petersen was induced to assent to the forum selection clause through fraud or overreaching” (emphasis added)); Haynsworth, 121 F.3d at 963 (“Fraud and overreaching must be specific to a forum selection clause in order to invalidate it.”). 7 RT AUTOMOTIVE, et al. v. WESTLAKE Opinion of the Court Accordingly, the court did not err by failing to conduct an evidentiary hearing.

2022Cir. 2000); see also Intercall Telecomms., Inc. v. Instant Impact, Inc., 376 F. Supp. 2d 155, 160 (D.P.R. 2005) (“Courts must distinguish between challenges to the validity of the underlying contract . . . and to the validity of the forum selection clause in particular . . . .