forum selection clause in Michigan

2016Stewart Org, Inc v Ricoh Corp, 487 US 22, 32 ; 108 S Ct 2239 ; 101 L Ed 2d 22 (1988); see also 28 USC 1404.

2016Stewart Org, Inc v Ricoh Corp, 487 US 22, 32 ; 108 S Ct 2239 ; 101 L Ed 2d 22 (1988); see also 28 USC 1404.

2026See Franlink Inc v BACE Servs, Inc, 50 F4th 432, 439 (CA 5, 2022); Fasano v Li, 47 F4th 91, 103-104 (CA 2, 2022); In re McGraw-Hill Global Ed Holdings LLC, 909 F3d 48, 63 (CA 3, 2018); Marano Enterprises of Kansas v Z-Teca Restaurants, LP, 254 F3d 753 , 757-758 (CA 8, 2001); Lipcon v Underwriters at Lloyd’s, London, 148 F3d 1285 , 1299 (CA 11, 1998); Baker v LeBoeuf, Lamb, Leiby & Macrae, 105 F3d 1102, 1106 (CA 6, 1997); Hugel v Corp of Lloyd’s, 999 F2d 206, 209-210 (CA 7, 1993); Manetti-Farrow, Inc v Gucci America, Inc, 858 F2d 509, 514 n 5 (CA 9, 1988).

2026See Franlink Inc v BACE Servs, Inc, 50 F4th 432, 439 (CA 5, 2022); Fasano v Li, 47 F4th 91, 103-104 (CA 2, 2022); In re McGraw-Hill Global Ed Holdings LLC, 909 F3d 48, 63 (CA 3, 2018); Marano Enterprises of Kansas v Z-Teca Restaurants, LP, 254 F3d 753 , 757-758 (CA 8, 2001); Lipcon v Underwriters at Lloyd’s, London, 148 F3d 1285 , 1299 (CA 11, 1998); Baker v LeBoeuf, Lamb, Leiby & Macrae, 105 F3d 1102, 1106 (CA 6, 1997); Hugel v Corp of Lloyd’s, 999 F2d 206, 209-210 (CA 7, 1993); Manetti-Farrow, Inc v Gucci America, Inc, 858 F2d 509, 514 n 5 (CA 9, 1988).

2024Accordingly, defendant cannot be deemed to have agreed to New York jurisdiction[.] [Hugo Boss Fashions, Inc v Sam’s European Tailoring, Inc, 293 AD2d 296, 297 ; 742 NYS 2d 1 (NY App Div, 2002) (cleaned up).] See also Dale R Horning Co, Inc v Falconer Glass Industries, Inc, 710 F Supp 693 , 698- 699 (SD Ind, 1989) (“Accordingly, because the forum selection clause would materially alter the [oral] contract, it is not a part of the parties’ agreement.”); Pfizer Inc v Advanced Monobloc Corp, 1998 WL 110129 (Del Super, 1998) (“[A]ssuming that there existed a prior oral agreement by the parties, Adv

2024Accordingly, defendant cannot be deemed to have agreed to New York jurisdiction[.] [Hugo Boss Fashions, Inc v Sam’s European Tailoring, Inc, 293 AD2d 296, 297 ; 742 NYS 2d 1 (NY App Div, 2002) (cleaned up).] See also Dale R Horning Co, Inc v Falconer Glass Industries, Inc, 710 F Supp 693 , 698- 699 (SD Ind, 1989) (“Accordingly, because the forum selection clause would materially alter the [oral] contract, it is not a part of the parties’ agreement.”); Pfizer Inc v Advanced Monobloc Corp, 1998 WL 110129 (Del Super, 1998) (“[A]ssuming that there existed a prior oral agreement by the parties, Adv

2024DISCUSSION The issue in this appeal is whether the forum-selection clause included in the October 17, 2022 invoice unilaterally sent by defendant to plaintiff is deemed part of the agreement between the parties under the UCC.4 If so, the trial court correctly dismissed the case.5 “In general, Michigan courts enforce forum-selection clauses, and Michigan’s public policy favors the enforcement of contractual forum-selection clauses and choice-of-law provisions.” Barshaw v Allegheny Performance Plastics, LLC, 334 Mich App 741 , 748; 965 NW2d 729 (2020) (quotation marks and citations omitted).

2024DISCUSSION The issue in this appeal is whether the forum-selection clause included in the October 17, 2022 invoice unilaterally sent by defendant to plaintiff is deemed part of the agreement between the parties under the UCC.4 If so, the trial court correctly dismissed the case.5 “In general, Michigan courts enforce forum-selection clauses, and Michigan’s public policy favors the enforcement of contractual forum-selection clauses and choice-of-law provisions.” Barshaw v Allegheny Performance Plastics, LLC, 334 Mich App 741 , 748; 965 NW2d 729 (2020) (quotation marks and citations omitted).

2024Therefore, taking the Metropolitan Alloys decision as persuasive authority, see Omian v Chrysler Group LLC, 309 Mich App 297 , 307 n 6; 869 NW2d 625 (2015), it follows that the forum-selection clause in the invoice in the matter before us “materially alter[s]” the parties’ earlier agreement.

2024Therefore, taking the Metropolitan Alloys decision as persuasive authority, see Omian v Chrysler Group LLC, 309 Mich App 297 , 307 n 6; 869 NW2d 625 (2015), it follows that the forum-selection clause in the invoice in the matter before us “materially alter[s]” the parties’ earlier agreement.

2022Thus, even if arbitration is completed, the forum selection clause would appear to dictate the location of any action to enforce the award. [Patten Sec Corp, Inc v Diamond Greyhound & Genetics, Inc, 819 F2d 400, 407 (CA 3, 1987) (internal footnote omitted), abrogated in part on other grounds in Gulfstream Aerospace Corp v Mayacamas Corp, 485 US 271, 287-288 ; 108 S Ct 1133 ; 99 L Ed 2d 296 (1988).] In other words, the forum selection provision in the GME agreements dictates that any action to enforce an arbitration award, or perhaps to determine whether an arbitrator or arbitration panel excee

2022Thus, even if arbitration is completed, the forum selection clause would appear to dictate the location of any action to enforce the award. [Patten Sec Corp, Inc v Diamond Greyhound & Genetics, Inc, 819 F2d 400, 407 (CA 3, 1987) (internal footnote omitted), abrogated in part on other grounds in Gulfstream Aerospace Corp v Mayacamas Corp, 485 US 271, 287-288 ; 108 S Ct 1133 ; 99 L Ed 2d 296 (1988).] In other words, the forum selection provision in the GME agreements dictates that any action to enforce an arbitration award, or perhaps to determine whether an arbitrator or arbitration panel excee

2021We are not constrained to follow dictionary definitions when interpreting a contract, Epps, 498 Mich at 529 , and the effect of interpreting the forum-selection clause to refer exclusively to federal courts is to deprive both parties of a forum in which to resolve their contract disputes.

2021“Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Spohn v Van Dyke Pub Sch, 296 Mich App 470, 479 ; 822 NW2d 239 (2012) (quotation marks and citations omitted).

2021“Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Spohn v Van Dyke Pub Sch, 296 Mich App 470, 479 ; 822 NW2d 239 (2012) (quotation marks and citations omitted).

2021The goal of contract interpretation “is to determine and enforce the parties’ intent on the basis of the plain language of the contract itself.” AFSCME v Detroit, 267 Mich App 255, 262 ; 704 NW2d 712 (2005).

2021The goal of contract interpretation “is to determine and enforce the parties’ intent on the basis of the plain language of the contract itself.” AFSCME v Detroit, 267 Mich App 255, 262 ; 704 NW2d 712 (2005).

2020Thus, the question to be answered by a court considering whether to dismiss an action pursuant to a contractual forum-selection clause is similar to the question facing a court considering whether to dismiss an action under the doctrine of forum non conveniens; namely, whether there is a sufficient reason that the action should be litigated in another forum rather than the one in which the plaintiff filed the action.6 The difference between the two scenarios is that a dismissal on forum non conveniens grounds is based on concepts related to convenience, the ends of justice, court administratio

2020Thus, the question to be answered by a court considering whether to dismiss an action pursuant to a contractual forum-selection clause is similar to the question facing a court considering whether to dismiss an action under the doctrine of forum non conveniens; namely, whether there is a sufficient reason that the action should be litigated in another forum rather than the one in which the plaintiff filed the action.6 The difference between the two scenarios is that a dismissal on forum non conveniens grounds is based on concepts related to convenience, the ends of justice, court administratio

2020If we were to adopt [the appellee’s] position [that the choice- of-law provision provided the governing law], Florida courts would be required to apply the law of the forum to determine the validity of a choice of law clause, while 7 “Although this Court is not bound by decisions of federal courts or courts of other states, we may consider them persuasive.” Bank of America, NA v Fid Nat’l Title Ins Co, 316 Mich App 480 , 496 n 2; 892 NW2d 467 (2016). -7- applying the law of a different jurisdiction to determine the validity of a forum selection clause.

2020If we were to adopt [the appellee’s] position [that the choice- of-law provision provided the governing law], Florida courts would be required to apply the law of the forum to determine the validity of a choice of law clause, while 7 “Although this Court is not bound by decisions of federal courts or courts of other states, we may consider them persuasive.” Bank of America, NA v Fid Nat’l Title Ins Co, 316 Mich App 480 , 496 n 2; 892 NW2d 467 (2016). -7- applying the law of a different jurisdiction to determine the validity of a forum selection clause.

2016Each clause contains the all-inclusive term “any,” Title Ins & Trust Co v Co of Riverside, 48 Cal 3d 84, 94; 767 P2d 1148 (1989), and the mandatory term “shall,” City & Co of San Francisco v Boyd, 22 Cal 2d 685, 704; 140 P2d 666 (1943).

2016Relevant to this question are two California decisions—Global Packaging, Inc v Superior Court (2011) 196 Cal. App. 4th 1623 (Global Packaging) and Berard Construction Co v Municipal Court (1975) 49 Cal App 3d 710 (Berard).”).