forum selection clause in Colorado

2013See, e.g., ABC Mobile Sys., Inc. v. Harvey, 701 P.2d 137, 139 (Colo.App.1985); Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318 , 320 (10th Cir.1997) (stating there are no "material discrepancies" between Bremen's treatment of forum selection clauses and Colorado law's treatment of forum selection clauses). 115 While a federal court has the option of transferring a case to another federal court in the proper forum under 28 T.S.C. § 1404, a state trial court that finds a forum selection clause enforceable and grants a motion to dismiss can only dismiss the case so that the plaintiff

2006In adopting the general rule of forum selection clause enforcement in ABC Mobile Systems, Inc. v. Harvey, supra, 701 P.2d at 139 , the division stated in passing that the defendant had "not alleged or shown that the forum selection clause was the result of unfair or unequal bargaining power or fraud." However, the specific question raised here— whether general contractual fraud not specifically relating to the procurement of the forum selection clause is sufficient to invalidate the clause was—not addressed.

2013See, e.g., Haynsworth v. The Corp., 121 F.3d 956, 960 (5th Cir.1997) (referring to the "chorus of authority" from other federal cireuit courts holding that the anti-wavier clause in the Securities Act does not render a forum selection clause void); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1366 (24 Cir.1998) (holding that a forum selection clause requiring that investors file suit in England was not void); Bonny v. Soc'y of Lloyd's, 3 F.3d 156, 162 (7th Cir.1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.1992). {23 Despite this uniform line of federal caselaw,

2011According to the choice of law clause intertwined with the forum selection clause in the Joint Venture Agreements, the agreements are to be construed exclusively in accordance with the laws of Texas. 1 See Haynsworth v. The Corporation, 121 F.3d 956, 967 (5th Cir. 1997) ("Choice of law is often one of the reasons for obtaining a forum selection clause.").

2013See, e.g., Haynsworth v. The Corp., 121 F.3d 956, 960 (5th Cir.1997) (referring to the "chorus of authority" from other federal cireuit courts holding that the anti-wavier clause in the Securities Act does not render a forum selection clause void); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1366 (24 Cir.1998) (holding that a forum selection clause requiring that investors file suit in England was not void); Bonny v. Soc'y of Lloyd's, 3 F.3d 156, 162 (7th Cir.1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.1992). {23 Despite this uniform line of federal caselaw,

2005Riley v. Kingsley Underwriting Agencies, Ltd., supra. The following factors have been considered in deciding the reasonableness of enforcing a forum selection clause: the nature of the contract and the location of the activities giving rise to the claim.

2011Haynsworth, 121 F.3d at 967 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506, 517-19 , 94 S.Ct. 2449, 2456-57 , 41 L.Ed.2d 270 (1974)).

2011Haynsworth, 121 F.3d at 967 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506, 517-19 , 94 S.Ct. 2449, 2456-57 , 41 L.Ed.2d 270 (1974)).

2014In finding an irreconcilable conflict between the arbitration clause and the forum selection clause, the PDX Pro Co. court relied primarily on Applied Emergetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522, 523-25 (2d Cir.2011), in which the arbitration and forum selection clauses were found in separate agreements, and the first agreement, which required arbitration, specifically contemplated that the parties would enter into a subsequent, more formal agreement setting forth the terms of the first agreement, and other terms.

2014Id. ¶ 15 A division of this court affirmed the district court's ruling that the parties' dis pute was arbitrable, citing Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278, 284 (2d Cir.2005), which held that an arbitration clause is not nullified by a later agreement containing a forum selection clause unless the forum selection clause specifically precludes arbitration, and that if the two agreements can be interpreted to permit arbitration, the court must choose that interpretation.

2014See Bank Julius Baer & Co., 424 F.3d at 282 ; PDX Pro Co., 2018 WL 3296539 , at *1.

2014Further, section 5.4.1(C), which required the parties to secure a loan to facilitate wife's purchase of her new home, and husband to secure funding if they could not do so, provided that disagreements concerning the matter would be governed by section 10.18. 121 Even though the arbitration and forum selection clauses here are mandatory, they are reconcilable, and the agreement as a whole can reasonably be interpreted, as the district court did, in a manner effectuating the broad arbitration provision agreed to by the parties. 1 See, e.g., Glencore, 848 F.Supp.2d at 433-34 (holding that a forum

2014While we have held that "a valid, enforceable arbitration provision divests trial courts of jurisdiction," Lane v. Urgitus, 145 P.3d 672, 679 (Colo.2006), there is a fundamental difference between arbitration clauses and forum selection clauses.

2013See, e.g., Haynsworth v. The Corp., 121 F.3d 956, 960 (5th Cir.1997) (referring to the "chorus of authority" from other federal cireuit courts holding that the anti-wavier clause in the Securities Act does not render a forum selection clause void); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1366 (24 Cir.1998) (holding that a forum selection clause requiring that investors file suit in England was not void); Bonny v. Soc'y of Lloyd's, 3 F.3d 156, 162 (7th Cir.1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.1992). {23 Despite this uniform line of federal caselaw,

2013ABC Mobile Sys., 701 P.2d at 140 ; K & V Scientific Co. v. Bayerische Motoren Werke Aktiengesellschaft ('BMW'), 314 F.3d 494, 497 (10th Cir.2002).

2013Group, LLC, 637 F.3d 18, 24-25 (1st Cir.2011) (holding that anti-waiver provision in Massachusetts securities laws did not void a forum selection clause requiring litigation in Delaware because Delaware courts would apply Massachusetts law and "Massachusetts securities law claims are not uncommonly brought in other jurisdictions"); In re Infocure Sec.

2013Litig., 210 F.Supp.2d 1331, 1362 (N.D.Ga.2002) (holding that choice of law clause specifying Georgia law did not preclude the court from applying the securities laws of North Carolina, South Carolina, Michigan, and Florida); Barnebey v. E.F.

2013Swenson v. T-Mobile USA, Inc., 415 F.Supp.2d 1101, 1105 (S.D.Cal.2006).

2013See, e.g., Haynsworth v. The Corp., 121 F.3d 956, 960 (5th Cir.1997) (referring to the "chorus of authority" from other federal cireuit courts holding that the anti-wavier clause in the Securities Act does not render a forum selection clause void); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1366 (24 Cir.1998) (holding that a forum selection clause requiring that investors file suit in England was not void); Bonny v. Soc'y of Lloyd's, 3 F.3d 156, 162 (7th Cir.1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.1992). {23 Despite this uniform line of federal caselaw,

2011Co., 157 Ill.App.3d 85, 88-89 , 109 Ill.Dec. 400 , 510 N.E.2d 21, 23-24 (1987) (applying a six-factor test to determine the enforceability of a forum selection clause, the first being the governing law of the contract). 3.

2011Co., 157 Ill.App.3d 85, 88-89 , 109 Ill.Dec. 400 , 510 N.E.2d 21, 23-24 (1987) (applying a six-factor test to determine the enforceability of a forum selection clause, the first being the governing law of the contract). 3.

2011No Colorado Supreme Court case states a procedure for reviewing a motion to dismiss based on a forum selection clause; however, in Edge Telecom, Inc. v. Sterling Bank, 143 P.3d 1155, 1159 (Colo.App.2006), another division of this court described an appropriate procedure: e The trial court must address the motion at the outset of the proceedings. e Once the party moving to dismiss has demonstrated the existence of a forum selection clause, the trial court must require any party opposing the motion not merely to allege, but to demonstrate by a preponderance of the evidence that the clause is unf

2011See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 , 108 S.Ct. 2239, 2244 , 101 L.Ed.2d 22 (1988).

2011See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 , 108 S.Ct. 2239, 2244 , 101 L.Ed.2d 22 (1988).

2006See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991) ("refin[ing]" analysis of M/S Bremen to hold that "negotiation" is not a prerequisite for enforcement of forum selection clauses); Gilman v. Wheat, First Sec., Inc., 345 Md. 361 , 692 A.2d 454, 461 (1997); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1250 (R.I.2001); see also Clinic Masters, Inc. v. Dist.

2006See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991) ("refin[ing]" analysis of M/S Bremen to hold that "negotiation" is not a prerequisite for enforcement of forum selection clauses); Gilman v. Wheat, First Sec., Inc., 345 Md. 361 , 692 A.2d 454, 461 (1997); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1250 (R.I.2001); see also Clinic Masters, Inc. v. Dist.

2006See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991) ("refin[ing]" analysis of M/S Bremen to hold that "negotiation" is not a prerequisite for enforcement of forum selection clauses); Gilman v. Wheat, First Sec., Inc., 345 Md. 361 , 692 A.2d 454, 461 (1997); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1250 (R.I.2001); see also Clinic Masters, Inc. v. Dist.

2006See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991) ("refin[ing]" analysis of M/S Bremen to hold that "negotiation" is not a prerequisite for enforcement of forum selection clauses); Gilman v. Wheat, First Sec., Inc., 345 Md. 361 , 692 A.2d 454, 461 (1997); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1250 (R.I.2001); see also Clinic Masters, Inc. v. Dist.

2006See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 , 111 S.Ct. 1522 , 113 L.Ed.2d 622 (1991) ("refin[ing]" analysis of M/S Bremen to hold that "negotiation" is not a prerequisite for enforcement of forum selection clauses); Gilman v. Wheat, First Sec., Inc., 345 Md. 361 , 692 A.2d 454, 461 (1997); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1250 (R.I.2001); see also Clinic Masters, Inc. v. Dist.

2006See Vanderbeek v. Vernon Corp., 25 P.3d 1242, 1248 (Colo.App.2000) ("parties' agreement as to the place of the action cannot deprive a court of subject matter jurisdiction"), *1160 aff'd, 50 P.3d 866 (Colo.2002); Cornstubble v. Indus.

2006Co., supra, 925 F.Supp. at 1495 (if a forum selection clause were to be rejected whenever a plaintiff asserted a generic claim of fraud in the inducement, then forum selection clauses would be rendered essentially meaningless).

2006See, e.g., SRH, Inc. v. IFC Credit Corp., 275 Ga.App. 18 , 619 S.E.2d 744, 746 (2005) (forum selection clause alleged to have been procured by fraud).

2006See, e.g., SRH, Inc. v. IFC Credit Corp., 275 Ga.App. 18 , 619 S.E.2d 744, 746 (2005) (forum selection clause alleged to have been procured by fraud).

2006See UIH-SFCC Holdings, L.P. v. Brigato, 51 P.3d 1076, 1078 (Colo.App.2002) (moving party must overcome the "strong presumption" in favor of the plaintiff's choice of forum).