forum selection clause in Tennessee

2018The Supreme Court then concluded, “courts of this state should give consideration to the above mentioned factors and any others which bear upon the fundamental fairness of enforcing such a forum selection clause, and should enforce such a clause unless the party opposing enforcement demonstrates that it would be unfair and inequitable to do so.” Id. 4 However, the validity of a forum selection clause executed in advance of an injury in a workers’ compensation case is more complicated.

2017We first note that there are no allegations in this case that the forum selection clause at issue was “obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means[.]” Dyersburg, 650 S.W.2d at 380 .

2015Further, as Westgate concedes in its brief, the Overtons alleged in their complaint that they were fraudulently induced into entering into the contract, and the trial court found fraud in the transaction.3 As we have previously stated, “fraud in the underlying transaction renders a contract clause, such as the forum selection clause at issue here, unenforceable.” Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000).

2015See Buraczynski, 919 S.W.2d at 320 (“We must examine the agreements in question to determine whether they are contracts of adhesion, and if so, whether they contain such unconscionable or oppressive terms as to render them unenforceable.”); see also Lamb, 26 S.W.3d at 631 (“[I]f Plaintiffs were fraudulently induced into entering the contract with [Defendant], Plaintiffs are not bound by the forum selection clause within the contract.”).

2017Even more puzzling, Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837 (Tenn. Ct. App. 1994), does not involve either a choice of law provision or the application of Tennessee law to determine its enforceability; rather, Thomas involves a forum selection clause, whosé enforcement was governed by federal law.

2015See Woodruff, 2007 WL 4439677 , at *5 (holding that the inconvenience of the forum state is insufficient to invalidate a forum selection clause) (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991); Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837, 841 (Tenn. Ct. App. 1994)).

2015See Woodruff, 2007 WL 4439677 , at *5 (holding that the inconvenience of the forum state is insufficient to invalidate a forum selection clause) (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991); Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837, 841 (Tenn. Ct. App. 1994)).

1994They received their tickets with the forum-selection clause before embarkation but after full payment was made, see Shute v. Carnival Cruise Lines, 897 F.2d 377, 389 (9th Cir.1990) (footnote 11), rev’d, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991); but the Supreme Court still reversed the United States Court of Appeals for the Ninth Circuit and enforced the forum-selection clause. 2 As noted above, we believe that the Plaintiffs’ receipt of the contract terms approximately a month before embarkation, combined with their subsequent passage on the cruise, are sufficient to constitute r

2000Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 , 92 S.Ct. 1907, 1914 , 32 L.Ed.2d 513 (1972).

2000Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 , 92 S.Ct. 1907, 1914 , 32 L.Ed.2d 513 (1972).

2025When analyzing contractual language, we recognize that “the word ‘may’ ordinarily connotes discretion or permission and will not be treated as a word of command.” Loveday, 1992 WL 136176 , at *4 (citing Williams v. McMinn Cnty., 352 S.W.2d 430, 433 (Tenn. 1961); Colella v. Whitt, 308 S.W.2d 369, 371 (Tenn. 1957)).

2025When analyzing contractual language, we recognize that “the word ‘may’ ordinarily connotes discretion or permission and will not be treated as a word of command.” Loveday, 1992 WL 136176 , at *4 (citing Williams v. McMinn Cnty., 352 S.W.2d 430, 433 (Tenn. 1961); Colella v. Whitt, 308 S.W.2d 369, 371 (Tenn. 1957)).

2025See Plum Tree, Inc. v. Stockment, 488 F.2d 754 , 758 n.7 (3d.

2024In some circumstances, transfer rather than dismissal without prejudice better serves “the interests of justice and of judicial economy.” Kampert v. Valley Farmers Co-op., No. M2009- 02360-COA-R10-CV, 2010 WL 4117146 , at *5 (Tenn. Ct. App. Oct. 19, 2010); see also Humphreys v. Selvey, 154 S.W.3d 544, 555-56 (Tenn. Ct. App. 2004) (determining that “the interest of justice would best be served by transferring the lawsuit” instead of “affirm[ing] the trial court’s outright dismissal of the action”).

2024See Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000); see also Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1145 (Del. 2010).

2021As we observed in Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 631 (Tenn. Ct. App. 2017), “the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum.” See Dyersburg Mach.

2015See Buraczynski, 919 S.W.2d at 320 (“We must examine the agreements in question to determine whether they are contracts of adhesion, and if so, whether they contain such unconscionable or oppressive terms as to render them unenforceable.”); see also Lamb, 26 S.W.3d at 631 (“[I]f Plaintiffs were fraudulently induced into entering the contract with [Defendant], Plaintiffs are not bound by the forum selection clause within the contract.”).

2015Id. at *6. 8 We agree that Appellants have sufficiently alleged a prima facie claim that the contracts were adhesion contracts “in that [they were] standardized contracts that were offered on essentially a „take it or leave it‟ basis without affording [Appellants] a real opportunity to bargain.” See Taylor v. Butler, 142 S.W.3d 277, 286 (Tenn. 2004).

2008See, e.g., Accredo Health Inc. v. Patterson, No. W2006-02693-COA-R3-CV, 2007 WL 2198574 , at *3 (Tenn. Ct. App. Aug. 1, 2007) (“Although the provisions certainly provide that the agreements are to be construed in accordance with Tennessee law, they are not forum selection clauses.”); Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 37 (5th Cir. (La.) 1997) (finding no inconsistency between a choice of law clause requiring application of American law and a forum selection clause requiring disputes to be determined by a London court).

2008“In Tennessee, courts follow the American Rule, which provides that litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise.” Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)).

2008“In Tennessee, courts follow the American Rule, which provides that litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise.” Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)).

1999See Tennsonita (Memphis), Inc. v. Cucos, Inc., 1991 WL 66993 (Tenn. App. May 2, 1991) (affirming the enforcement of a forum selection clause in accordance with Tennessee law, even though the plaintiffs’ claims included TCPA claims); Lien v. Couch, No. 01A01-9609-CV-00398, 1998 WL 848101 (Tenn. App. Dec. 8, 1998) (recognizing that a plaintiff’s ability to bring a TCPA action in Tennessee can be limited through the judicial doctrine of claim preclusion, even though such an action was commenced prior to entry of the foreign judgment on related claims).

1999Cf. Tennsonita, 1991 WL 66993 , *3-4 (enforcement of a forum selection clause under Tennessee law depends, in part, upon whether “effective relief” can be secured in the selected forum); Lien, 1998 WL 848101, *3-5 (precluding a plaintiff from asserting a TCPA action in Tennessee based upon claim preclusion depends, in part, upon whether the same claims could have been asserted in the foreign jurisdiction).

1999See Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d 11, 12 (1st Cir. 1994).

1999As with the maritime contracts within which the clauses are contained, however, maritime law governs the validity and enforcement of the forum selection clauses.4 Hodes, 858 F.2d at 909 (stating that the enforceability of a forum selection clause within a maritime contract is a matter “governed by the general maritime, not the local state, law”).

1994III We begin our analysis by noting that “[a] contract for the transportation of passengers is a maritime contract within admiralty jurisdiction.” Archawski v. Hanioti, 350 U.S. 532, 533 , 76 S.Ct. 617, 619 , 100 L.Ed. 676 (1956); see also The Moses Taylor, 71 U.S. (4 Wall.) 411 , 18 L.Ed. 397 (1867).

1994III We begin our analysis by noting that “[a] contract for the transportation of passengers is a maritime contract within admiralty jurisdiction.” Archawski v. Hanioti, 350 U.S. 532, 533 , 76 S.Ct. 617, 619 , 100 L.Ed. 676 (1956); see also The Moses Taylor, 71 U.S. (4 Wall.) 411 , 18 L.Ed. 397 (1867).

1994See Barbachym, 713 F.2d 216 (6th Cir.1983) (refusing to enforce a contractual limitations period because the ticket stated that all conditions of transportation were held by the group’s leader).