forum selection clause in Nevada

2018Terina's Pizza, Inc ., 105 Nev. 841 , 844, 784 P.2d 7 , 8 (1989) (invalidating a forum selection clause because it was in very fine print, was on the back of the agreement while the signature lines were on the front of the agreement, and was buried in a paragraph labeled "miscellaneous").

2018Terina's Pizza, Inc ., 105 Nev. 841 , 844, 784 P.2d 7 , 8 (1989) (invalidating a forum selection clause because it was in very fine print, was on the back of the agreement while the signature lines were on the front of the agreement, and was buried in a paragraph labeled "miscellaneous").

2020See Soro, 131 Nev. at 738-40, 359 P.3d at 106-08 (applying Nevada law to interpret a forum-selection clause despite a choice-of-law clause directing courts to construe the contract under Utah law); Tuxedo Inel Inc. v. Rosenberg, 127 Nev. 11, 21-26 , 251 P.3d 690, 696-700 (2011) (applying Nevada law to interpret a forum-selection clause and a choice-of- law clause specifying that "the Agreement will be governed by the laws of Peru"); see also, e.g., John F. Coyle, The Canons of Construction for Choice- of-Law Clauses, 92 Wash. L.

2020See Soro, 131 Nev. at 738-40, 359 P.3d at 106-08 (applying Nevada law to interpret a forum-selection clause despite a choice-of-law clause directing courts to construe the contract under Utah law); Tuxedo Inel Inc. v. Rosenberg, 127 Nev. 11, 21-26 , 251 P.3d 690, 696-700 (2011) (applying Nevada law to interpret a forum-selection clause and a choice-of- law clause specifying that "the Agreement will be governed by the laws of Peru"); see also, e.g., John F. Coyle, The Canons of Construction for Choice- of-Law Clauses, 92 Wash. L.

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2015Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992); see Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318 , 321 (10th Cir. 1997) (describing the "mandatory/permissive dichotomy" and concluding that the clause, "jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado," was mandatory (internal quotation marks omitted)); John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs.

2015Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992); see Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318 , 321 (10th Cir. 1997) (describing the "mandatory/permissive dichotomy" and concluding that the clause, "jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado," was mandatory (internal quotation marks omitted)); John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs.

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2015Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992); see Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318 , 321 (10th Cir. 1997) (describing the "mandatory/permissive dichotomy" and concluding that the clause, "jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado," was mandatory (internal quotation marks omitted)); John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs.

2015Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992); see Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318 , 321 (10th Cir. 1997) (describing the "mandatory/permissive dichotomy" and concluding that the clause, "jurisdiction shall be in the State of Colorado, and venue shall lie in the County of El Paso, Colorado," was mandatory (internal quotation marks omitted)); John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs.

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2015Inc., 22 F.3d 51, 52-53 (2d Cir. 1994) (holding the forum selection clause, "fainy dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," as permissive (internal quotation marks omitted)); Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76-78 (9th Cir. 1987) (holding the forum selection clause, "[Ole courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or the interpretation of this contract," as permissive, a

2011This footnote clarified that a prior decision, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), did not hold that a forum selection clause is unenforceable any time the allegation is made that the underlying transaction was a product of fraud, but rather that the inclusion of the forum selection clause in the contract must be the product of the fraud.

1989In The Bremen , the forum selection clause “preceded the date and signature” and “could hardly by ignored.” Id. at 12-13, n.14 .

2021See Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278 , 284-85 (2d Cir. 2005) (construing a forum selection clause as complementary to an arbitration agreement and concluding that the forum selection clause provided New York courts with jurisdiction over ancillary proceedings— such as to enforce an arbitral award or to challenge the validity of the arbitration agreement—but that the merits of any dispute should be resolved in the first instance by arbitration), abrogctted on other grounds by Granite Rock Co. v. Int?

2021See Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278, 284-85 (2d Cir. 2005) (construing a forum selection clause as complementary to an arbitration agreement and concluding that the forum selection clause provided New York courts with jurisdiction over ancillary proceedings— such as to enforce an arbitral award or to challenge the validity of the arbitration agreement—but that the merits of any dispute should be resolved in the first instance by arbitration), abrogctted on other grounds by Granite Rock Co. v. Int?

2020Thomas Drayage & Rigging Co., 442 P.2d 641, 645 (Cal. 1968), which permits parol evidence to contradict the meaning of even unambiguous contractual text.

2013See NRCP 12(b) (explaining that when matters outside the pleading are presented to the district court in support of a motion to dismiss, the motion will be treated as one for summary judgment); see also Wood v. Safeway, Inc., 121 Nev. 724, 729, 731 , 121 P.3d 1026, 1029 , 1030- 31 (2005) (providing that "when reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party" and that, to avoid summary judgment, the nonmoving party must present evidence demonstrating the existence of a genuine issu

2013See NRCP 12(b) (explaining that when matters outside the pleading are presented to the district court in support of a motion to dismiss, the motion will be treated as one for summary judgment); see also Wood v. Safeway, Inc., 121 Nev. 724, 729, 731 , 121 P.3d 1026, 1029 , 1030- 31 (2005) (providing that "when reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party" and that, to avoid summary judgment, the nonmoving party must present evidence demonstrating the existence of a genuine issu

2011See, e.g., Hoffman v. Minuteman Press Intern., Inc., 747 F. Supp. 552 , 557 n.3 (W.D.

2011See, e.g., Vredenburg v. Sedgwick CMS, 124 Nev. 553, 563 , 188 P.3d 1084, 1092 (2008) (remanding for reexamination under a standard adopted in that opinion).

2011See, e.g., Vredenburg v. Sedgwick CMS, 124 Nev. 553, 563 , 188 P.3d 1084, 1092 (2008) (remanding for reexamination under a standard adopted in that opinion).

2011A Utah federal district court decision, Berrett v. Life Insurance Co. of the Southwest, 623 F. Supp. 946, 948-49 (D.

2011The Berrett court concluded that the key factor in determining whether the tort claims were subject to the forum selection clause was “the intention of the parties reflected in the wording of particular clauses and the facts of each case.” Id.

2011See Farmland Industries v. Frazier-Parrott Commodities, 806 F.2d 848, 851-52 (8th Cir. 1986) (setting forth this proposition in explaining *16 that, when a fiduciary relationship is created by a fraudulent contract, the individual defrauded should not be held to the contract’s forum selection clause), abrogated on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989).

2011In Coastal Steel v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983), abrogated on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989), the Third Circuit explained that to permit a pleading to *20 avoid being subject to a forum selection clause “ignores the reality that the . . . contract is the basic source of any duty,” and that “[i]f forum selection clauses are to be enforced as a matter of public policy, that same public policy requires that they not be defeated by artful pleading of claims . ...” Id.

2011In Coastal Steel v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983), abrogated on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989), the Third Circuit explained that to permit a pleading to *20 avoid being subject to a forum selection clause “ignores the reality that the . . . contract is the basic source of any duty,” and that “[i]f forum selection clauses are to be enforced as a matter of public policy, that same public policy requires that they not be defeated by artful pleading of claims . ...” Id.

2011Another example of this approach is found in Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 117-18 (D.D.C. 2008), in which a federal district court addressed the enforceability of an employment agreement’s forum selection clause against an employee, when the employee argued that he was induced to leave his former employment with a law firm by a fraudulent promise of equity in his new employer, thereby rendering his execution of the employment contract with the new employer a product of fraud.

2011The federal district court rejected this argument as “plainly insufficient to invalidate the forum selection clause” and further explained that such allegations of fraud and overreaching must be specific to the forum selection clause itself, rather than the entire contract, in order to invalidate the forum selection clause. 4 Id. at 118 . *18 The rule-based approach A second approach to reviewing tort claims potentially subject to a contractual forum selection clause, which we refer to here as the rule-based approach, is arguably more receptive to permitting avoidance of a forum selection clau

2011See Farmland Industries v. Frazier-Parrott Commodities, 806 F.2d 848, 851-52 (8th Cir. 1986) (setting forth this proposition in explaining *16 that, when a fiduciary relationship is created by a fraudulent contract, the individual defrauded should not be held to the contract’s forum selection clause), abrogated on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989).

2011See Farmland Industries v. Frazier-Parrott Commodities, 806 F.2d 848, 851-52 (8th Cir. 1986) (setting forth this proposition in explaining *16 that, when a fiduciary relationship is created by a fraudulent contract, the individual defrauded should not be held to the contract’s forum selection clause), abrogated on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989).

2011The court therefore set forth the rule that “where the relationship between the parties is contractual, the pleading of alternative non-contractual theories of liability should not prevent enforcement of such a bargain.” Id.-, see also Banco Popular de Puerto Rico v. Airborne Group PLC, 882 F. Supp. 1212, 1217 (D.P.R. 1995) (relying on Coastal Steel in determining that a forum selection clause was enforceable against a plaintiff’s tort claims).

2011The court therefore set forth the rule that “where the relationship between the parties is contractual, the pleading of alternative non-contractual theories of liability should not prevent enforcement of such a bargain.” Id.-, see also Banco Popular de Puerto Rico v. Airborne Group PLC, 882 F. Supp. 1212, 1217 (D.P.R. 1995) (relying on Coastal Steel in determining that a forum selection clause was enforceable against a plaintiff’s tort claims).

2011In Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513-14 (9th Cir. 1988), the court addressed the contention that a forum selection clause did not apply to certain tort-based claims.

2011The court explained that a forum selection clause can equally apply to tort or contractual causes of action and that the primary analysis is “whether resolution of the claims relates to interpretation of the contract.” Id. at 514 .

2011The First Circuit rule In Lambert v. Kysar, 983 F.2d 1110, 1121-22 (1st Cir. 1993), the First Circuit Court of Appeals addressed an argument that a forum selection clause should not apply to certain tort claims because the plaintiff was alleging tortious conduct relating to the formation of the contract rather than regarding performance of the contract.

2011This same-operative-facts test requires a determination as to whether a plaintiff’s cause of action directly concerns the formation or en *19 forcement of the contract containing the forum selection clause, id. at 1122 , or, in the opinion of the Eighth Circuit Court of Appeals, whether the parties could have brought a parallel breach of contract claim and yet did not.

2011Id.; see also Moon v. CSA-Credit Solutions of America, 696 S.E.2d 486, 487 (Ga. Ct. App. 2010) (independently adopting a largely identical rule providing that “ ‘[rjegardless of the duty sought to be enforced in a particular cause of action, if the duty arises from the contract, the forum selection clause [in the contract] governs the action’ ’’(quoting Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993))).

2011Id.; see also Moon v. CSA-Credit Solutions of America, 696 S.E.2d 486, 487 (Ga. Ct. App. 2010) (independently adopting a largely identical rule providing that “ ‘[rjegardless of the duty sought to be enforced in a particular cause of action, if the duty arises from the contract, the forum selection clause [in the contract] governs the action’ ’’(quoting Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993))).

2011See Term Intern., Inc. v. Mississippi Chemical Corp., 119 F.3d 688, 695 (8th Cir. 1997) (restating the Lambert test).

2011Id. at 692-95.

2011See also Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1014-15 (D.C. 2002) (adopting the First Circuit rule that noncontract claims involving the same operative facts as a parallel contract claim fall within the scope of a forum selection clause in the contract); Lawler v. Schumacher Filters America, Inc., 832 F. Supp. 1044, 1052 (E.D.

2011See also Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1014-15 (D.C. 2002) (adopting the First Circuit rule that noncontract claims involving the same operative facts as a parallel contract claim fall within the scope of a forum selection clause in the contract); Lawler v. Schumacher Filters America, Inc., 832 F. Supp. 1044, 1052 (E.D.

2011See also Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1014-15 (D.C. 2002) (adopting the First Circuit rule that noncontract claims involving the same operative facts as a parallel contract claim fall within the scope of a forum selection clause in the contract); Lawler v. Schumacher Filters America, Inc., 832 F. Supp. 1044, 1052 (E.D.

2011See also Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1014-15 (D.C. 2002) (adopting the First Circuit rule that noncontract claims involving the same operative facts as a parallel contract claim fall within the scope of a forum selection clause in the contract); Lawler v. Schumacher Filters America, Inc., 832 F. Supp. 1044, 1052 (E.D.

2011Id.; see also Moon v. CSA-Credit Solutions of America, 696 S.E.2d 486, 487 (Ga. Ct. App. 2010) (independently adopting a largely identical rule providing that “ ‘[rjegardless of the duty sought to be enforced in a particular cause of action, if the duty arises from the contract, the forum selection clause [in the contract] governs the action’ ’’(quoting Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993))).

2011Id.; see also Moon v. CSA-Credit Solutions of America, 696 S.E.2d 486, 487 (Ga. Ct. App. 2010) (independently adopting a largely identical rule providing that “ ‘[rjegardless of the duty sought to be enforced in a particular cause of action, if the duty arises from the contract, the forum selection clause [in the contract] governs the action’ ’’(quoting Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993))).