forum clause in Texas

2014The district clerk cites no case law or statutory support for an exception allowing a district clerk or trial court to override rule 145 in divorce cases, and there is case law firmly enforcing the policies and provisions of rule 145 and Yates in the family law context. 9 See, e.g., In re Villanueva, 292 S.W.3d 236, 246 (Tex. App.—Texarkana 2009, orig. proceeding) (holding trial court abused its discretion by ordering Villanueva to pay advance costs and fees for attorney ad litem and social study administrator because, based on her uncontested affidavit of indigence, she was indigent as a matt

2014The district clerk cites no case law or statutory support for an exception allowing a district clerk or trial court to override rule 145 in divorce cases, and there is case law firmly enforcing the policies and provisions of rule 145 and Yates in the family law context. 9 See, e.g., In re Villanueva, 292 S.W.3d 236, 246 (Tex.App.-Texarkana 2009, orig. proceeding) (holding trial court abused its discretion by ordering Villa-nueva to pay advance costs and fees for attorney ad litem and social study administrator because, based on her uncontested affidavit of indigence, she was indigent as a matt

2010E.D.Tex. 1997) (finding that mere fact that debtor had experienced financial difficulties resulting in bankruptcy was not sufficient to preclude enforcement of a forum-selection clause on the theory that it had become seriously inconvenient). [8] 407 U.S. 1, 16 , 92 S.Ct. 1907 , 32 L.Ed.2d 513 (1972) (the Supreme Court also noted: "the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause," id. at 17 , 92 S.Ct. 1907 ).

2010E.D.Tex. 1997) (finding that mere fact that debtor had experienced financial difficulties resulting in bankruptcy was not sufficient to preclude enforcement of a forum-selection clause on the theory that it had become seriously inconvenient). [8] 407 U.S. 1, 16 , 92 S.Ct. 1907 , 32 L.Ed.2d 513 (1972) (the Supreme Court also noted: "the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause," id. at 17 , 92 S.Ct. 1907 ).

2016Inc. v. Dobson, 513 U.S. 265 (1995). 0 6 1 7 See Blanco v. Banco Industrial De Venezuela, S.A., 997 F.2d 974, 979 (2d Cir. 1993). 077 1 See Carbon Black Export, Inc. v. Monrosa, 254 F.2d 297, 300-01 (5th Cir. 1958); see also EUGENE SCOLES & PETER HAY, CONFLICT OF LAWS, §§ 11.3-.4 (2d ed. 1992). '0 8See id. 914 BAYLOR LAW REVIEW [Vol. 51:4 elevating drilling rig (Chaparral)from Louisiana to a point off Ravenna, Italy, in the Adriatic Sea."'' 70 The contract, drafted by Unterweser in bidding for the job, had a forum clause designating the London Court of Justice as the forum to resolve disputes.

2016Zapata claimed that the Bremen was not a seaworthy tug and that its crew was negligent, and Unterweser claimed that the Chaparral was not a seaworthy rig.1012 Zapata ignored the contract's London forum clause and filed an admiralty action in federal court in Tampa, Florida. °8' Unterweser responded with an action in England, seeking to compel litigation there.10 4 The Tampa court denied Unterweser's motion to enforce the forum selection clause by dismissing its action, and enjoined Unterweser from continuing in the latter-filed English action.0 s5 The English court responded by denying Zapata'

2016In International Software Systems, Inc. v. Amplicon, Inc., the Fifth Circuit examined the circuit split, finding that other federal courts had considered the different possible choices of (1) federal common law under Bremen, (2) the "importing" of federal statutory law under section 1404(a), and (3) state law1'19 The court chose Bremen, explicitly rejecting the Fourth Circuit's choice of state law.1l90 The Second Circuit also applies federal law."''9 't8'See, e.g., Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 73-74 (Tex. App.--Dallas 1996, no writ). " 2See Greenwood v. Til

2016In International Software Systems, Inc. v. Amplicon, Inc., the Fifth Circuit examined the circuit split, finding that other federal courts had considered the different possible choices of (1) federal common law under Bremen, (2) the "importing" of federal statutory law under section 1404(a), and (3) state law1'19 The court chose Bremen, explicitly rejecting the Fourth Circuit's choice of state law.1l90 The Second Circuit also applies federal law."''9 't8'See, e.g., Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 73-74 (Tex. App.--Dallas 1996, no writ). " 2See Greenwood v. Til

2016HSC retains a right to “unilaterally nullify the arbitration agreement,” and “the employees have received nothing of value for their promises to arbitrate employment related disputes.” See Lucchese, 324 S.W.3d at 217 . “[O]nce a claim arises, the forum in which that claim will be decided hinges not on mutually binding promises, but on a race 4 As a more general matter, HSC also argues that Texas law expresses a “strong presumption favoring arbitration.” However, the presumption favoring arbitration “arises only after the party seeking to compel arbitration proves that a valid arbitration agree

2016HSC retains a right to “unilaterally nullify the arbitration agreement,” and “the employees have received nothing of value for their promises to arbitrate employment related disputes.” See Lucchese, 324 S.W.3d at 217 . “[O]nce a claim arises, the forum in which that claim will be decided hinges not on mutually binding promises, but on a race 4 As a more general matter, HSC also argues that Texas law expresses a “strong presumption favoring arbitration.” However, the presumption favoring arbitration “arises only after the party seeking to compel arbitration proves that a valid arbitration agree

2016The court observed that "[p]leading alternate noncontractual theories of recovery will not alone avoid a forum selection clause if those alternate claims arise out of the contractual relations and implicate the contract's terms. ' 12 The court also held that the forum selection clause's term "relating to" indicated the parties' intent that related noncontractual claims be covered.413 Fourth, the forum selection clause did not contravene a specific Texas venue rule.' The court noted a shift in the law since the 1919 case cited by Accelerated and that American courts now routinely 411 Id. at 70-

2016The court observed that "[p]leading alternate noncontractual theories of recovery will not alone avoid a forum selection clause if those alternate claims arise out of the contractual relations and implicate the contract's terms. ' 12 The court also held that the forum selection clause's term "relating to" indicated the parties' intent that related noncontractual claims be covered.413 Fourth, the forum selection clause did not contravene a specific Texas venue rule.' The court noted a shift in the law since the 1919 case cited by Accelerated and that American courts now routinely 411 Id. at 70-

2016Cir. 1984). " 59652 F.2d 852 , 855 (9th Cir. 1981); see also infra Part VII.B.2. ' 60179 N.W.2d 683 , 686 (Mich. Ct. App. 1970). 56194 P.2d 341 , 342 (Kan. 1939). 562 See id. "'See id. at 344. 5 64See El Paso Natural Gas Co. v. Transamerican Natural Gas Corp., 669 A.2d 36 (Del. 1995). 5 'See id. at 38 . 5 6See id. 7 56 See id. 8 " See id. 1999] PARALLEL LITIGATION 849 dismissed the case, and the Delaware Supreme Court affirmed, holding that Transamerican had an adequate remedy at law to raise the forum clause as a defense in the Texas case.5 69 3.

2016Cir. 1984). " 59652 F.2d 852 , 855 (9th Cir. 1981); see also infra Part VII.B.2. ' 60179 N.W.2d 683 , 686 (Mich. Ct. App. 1970). 56194 P.2d 341 , 342 (Kan. 1939). 562 See id. "'See id. at 344. 5 64See El Paso Natural Gas Co. v. Transamerican Natural Gas Corp., 669 A.2d 36 (Del. 1995). 5 'See id. at 38 . 5 6See id. 7 56 See id. 8 " See id. 1999] PARALLEL LITIGATION 849 dismissed the case, and the Delaware Supreme Court affirmed, holding that Transamerican had an adequate remedy at law to raise the forum clause as a defense in the Texas case.5 69 3.

2016Co., 755 F.2d 528, 531 (7th Cir. 1985); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 (1971)). 1302877 F.2d 912 (11 th Cir. 1989). 1999] PARALLEL LITIGATION and if valid, the defendant has consented to jurisdiction.3 °3 One important point is that these opinions are shaped by the arguments made by counsel in each case, and the attorneys in Northwestern made only federal arguments.' 3°4 Both approaches have merit, and no court has yet ruled clearly on this issue in a prorogation case. i. Form ofMotion and StandardofReview The courts are also split as to which procedural device is appropriate t

2016Co., 755 F.2d 528, 531 (7th Cir. 1985); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 (1971)). 1302877 F.2d 912 (11 th Cir. 1989). 1999] PARALLEL LITIGATION and if valid, the defendant has consented to jurisdiction.3 °3 One important point is that these opinions are shaped by the arguments made by counsel in each case, and the attorneys in Northwestern made only federal arguments.' 3°4 Both approaches have merit, and no court has yet ruled clearly on this issue in a prorogation case. i. Form ofMotion and StandardofReview The courts are also split as to which procedural device is appropriate t

2016Circuit applied Bremen to validate a forum clause pointing to Italy in a diversity case, but without a choice of law analysis.1210 The Second Circuit has applied Bremen to an international contract in a diversity case, but the issue was interpretation and not validity.'2 ' There was no choice of law discussion, but if Bremen applies to forum clause interpretation in the Second Circuit, it would presumably apply to validity. 1143906 F.2d 45 , 46 (lst Cir. 1990). 1244See id. '2451d. at 5 1. 12461d 1247983 F.2d I110, 1116 (1st Cir. 1993). 1248972 F.2d 753 , 756 (7th Cir. 1992). 1249916 F.2d 372 ,

2016Circuit applied Bremen to validate a forum clause pointing to Italy in a diversity case, but without a choice of law analysis.1210 The Second Circuit has applied Bremen to an international contract in a diversity case, but the issue was interpretation and not validity.'2 ' There was no choice of law discussion, but if Bremen applies to forum clause interpretation in the Second Circuit, it would presumably apply to validity. 1143906 F.2d 45 , 46 (lst Cir. 1990). 1244See id. '2451d. at 5 1. 12461d 1247983 F.2d I110, 1116 (1st Cir. 1993). 1248972 F.2d 753 , 756 (7th Cir. 1992). 1249916 F.2d 372 ,

2016Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). '2.See id. at 375-76 . 124859 F.2d 4 , 9 (3d Cir. 1988). 1285119 F.3d 688 , 697 (8th Cir. 1997). 6 121 Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir. 1989). .2. ee id. at 915 . .288/d.at 915 n.6. ' 2-s9 ee id. at 915 . 1999] PARALLEL LITIGATION 939 jurisdiction.190 The federal district court dismissed, finding that the forum clause was not sufficient to confer jurisdiction under Florida's long arm statute. 291 The Eleventh Circuit reversed, finding that while the lower court was correct to apply the Flo

2016Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). '2.See id. at 375-76 . 124859 F.2d 4 , 9 (3d Cir. 1988). 1285119 F.3d 688 , 697 (8th Cir. 1997). 6 121 Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir. 1989). .2. ee id. at 915 . .288/d.at 915 n.6. ' 2-s9 ee id. at 915 . 1999] PARALLEL LITIGATION 939 jurisdiction.190 The federal district court dismissed, finding that the forum clause was not sufficient to confer jurisdiction under Florida's long arm statute. 291 The Eleventh Circuit reversed, finding that while the lower court was correct to apply the Flo

2016Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). '2.See id. at 375-76 . 124859 F.2d 4 , 9 (3d Cir. 1988). 1285119 F.3d 688 , 697 (8th Cir. 1997). 6 121 Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir. 1989). .2. ee id. at 915 . .288/d.at 915 n.6. ' 2-s9 ee id. at 915 . 1999] PARALLEL LITIGATION 939 jurisdiction.190 The federal district court dismissed, finding that the forum clause was not sufficient to confer jurisdiction under Florida's long arm statute. 291 The Eleventh Circuit reversed, finding that while the lower court was correct to apply the Flo

2016Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). '2.See id. at 375-76 . 124859 F.2d 4 , 9 (3d Cir. 1988). 1285119 F.3d 688 , 697 (8th Cir. 1997). 6 121 Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir. 1989). .2. ee id. at 915 . .288/d.at 915 n.6. ' 2-s9 ee id. at 915 . 1999] PARALLEL LITIGATION 939 jurisdiction.190 The federal district court dismissed, finding that the forum clause was not sufficient to confer jurisdiction under Florida's long arm statute. 291 The Eleventh Circuit reversed, finding that while the lower court was correct to apply the Flo

2016See id. at 368 nn.l-3. ' 208See BORN, INTERNATIONAL CIVIL LITIGATION, supra note 6, at 432 (discussing Bremen's persuasive but not binding authority in federal question cases other than admiralty). 2 'gSee id. at 431-32. ""°See generally TAAG Linhas Aereas v. Transamerica Airlines, Inc., 915 F.2d 1351 (9th Cir. 1990) (involving claim against foreign sovereigns under the Foreign Sovereign Immunities Act); Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983) (concerning bankruptcy); Bense v. Interstate Battery Sys.

2016Co., 926 F.2d 865, 867 (9th Cir. 1991) (applying Bremen to Saudi foreign forum clause). 1999] PARALLEL LITIGATION 933 Haynsworth v. The Corporation was a suit by "names," Lloyd's underwriters, against Lloyd's for various wrongs.'235 Several actions were filed in various federal courts throughout the United States; two were consolidated for this opinion regarding dismissal based on a forum clause designating England.1116 The Fifth Circuit distinguished between the two cases in that one was based on a federal question (securities fraud) and the other on diversity.1231 7 The court pointed out tha

2016See also Stamm v. Barclays Bank of New York, 153 F.3d 30 (2d Cir. 1998); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11 th Cir. 1998); Haynsworth v. The Corporation, 121 F.3d 956 (5th Cir. 1997); Allen v. Lloyd's ofLondon, 94 F.3d 923 (4th Cir. 1996); Shell v. R.W.

2016Zapata claimed that the Bremen was not a seaworthy tug and that its crew was negligent, and Unterweser claimed that the Chaparral was not a seaworthy rig.1012 Zapata ignored the contract's London forum clause and filed an admiralty action in federal court in Tampa, Florida. °8' Unterweser responded with an action in England, seeking to compel litigation there.10 4 The Tampa court denied Unterweser's motion to enforce the forum selection clause by dismissing its action, and enjoined Unterweser from continuing in the latter-filed English action.0 s5 The English court responded by denying Zapata'

2016The court observed that "[p]leading alternate noncontractual theories of recovery will not alone avoid a forum selection clause if those alternate claims arise out of the contractual relations and implicate the contract's terms. ' 12 The court also held that the forum selection clause's term "relating to" indicated the parties' intent that related noncontractual claims be covered.413 Fourth, the forum selection clause did not contravene a specific Texas venue rule.' The court noted a shift in the law since the 1919 case cited by Accelerated and that American courts now routinely 411 Id. at 70-

2016The Fifth Circuit first noted the Supreme Court's decision to apply the 59 2 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); see also infra Part VII.A.3.a. 593 See 28 U.S.C. § 1404 (a) (1993). 594 See InternationalSoftware, 77 F.3d at 115 . 595 ld. at 113-14. 596 See id. at 113 . 59 7 See id. 59 'See id. at 114 . 5 99See id. 'See, e.g., Zapata Marine Serv. v. O/Y Finnlines, Ltd., 571 F.2d 208, 209 (5th Cir. 1978) (affirming Texas district court's dismissal to enforce forum selection clause).

2016The court observed that "[p]leading alternate noncontractual theories of recovery will not alone avoid a forum selection clause if those alternate claims arise out of the contractual relations and implicate the contract's terms. ' 12 The court also held that the forum selection clause's term "relating to" indicated the parties' intent that related noncontractual claims be covered.413 Fourth, the forum selection clause did not contravene a specific Texas venue rule.' The court noted a shift in the law since the 1919 case cited by Accelerated and that American courts now routinely 411 Id. at 70-

2016In International Software Systems, Inc. v. Amplicon, Inc., the Fifth Circuit examined the circuit split, finding that other federal courts had considered the different possible choices of (1) federal common law under Bremen, (2) the "importing" of federal statutory law under section 1404(a), and (3) state law1'19 The court chose Bremen, explicitly rejecting the Fourth Circuit's choice of state law.1l90 The Second Circuit also applies federal law."''9 't8'See, e.g., Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 73-74 (Tex. App.--Dallas 1996, no writ). " 2See Greenwood v. Til

2016This is illustrated in 2 See InternationalSoftware, 77 F.3d at 114 -15 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). ' 3 See id. at 115 ("We choose to join the other courts rather than make a circuit split and further complicate this area of the law."). 'See id. at 114-16 . 6°"See infra Part VII.A.3; see also American Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377, 379, 383-84 (N.D.

2016This is illustrated in 2 See InternationalSoftware, 77 F.3d at 114 -15 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). ' 3 See id. at 115 ("We choose to join the other courts rather than make a circuit split and further complicate this area of the law."). 'See id. at 114-16 . 6°"See infra Part VII.A.3; see also American Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377, 379, 383-84 (N.D.