forum selection clause in Massachusetts

2010U.S.A., Inc., 419 Mass. 572, at 578-79 (1995), construed a similarly circumscribed forum selection clause, which in that case specified California as the chosen forum: The forum selection clause by its terms relates only to actions to enforce the agreement and not to actions based on unlawful conduct that induced a franchisee to sign the agreement.

2009U.S.A., Inc., 419 Mass. 572, 574-575 (1995); Stagecoach Transp., 50 Mass. App. Ct. at 817-818 . “[F]or a court to conclude that enforcement of a forum selection clause in a freely negotiated international commercial transaction is unfair or unreasonable, the party who seeks to escape the consequences of the clause must show that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.’ ” Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 130 (2000), quoting from The Bremen v. Zapata

2025To meet that burden, “[a] party resisting the enforcement of a forum selection clause must establish that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.’ ” Boland v. George S. May International Co., 81 Mass. App. Ct. 817, 820 (2012), quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972).

2014“A party resisting the enforcement of a forum selection clause must establish that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court’ ’’; Boland at 825, quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972); accord, Cambridge Biotech Corp. v. Pasteur Sanoji Diagnostics, 433 Mass. 122, 130 (2000); Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée., 75 Mass.App.Ct. 27, 32 (2009); or that the contractual choice of forum was procured by “fraud, duress, the abuse of economic power,

2025“The opponent of a forum selection clause bears the ‘substantial burden’ of showing that enforcement of a forum selection clause would be unfair and unreasonable.” Melia, 462 Mass. at 182 , quoting Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 133 (2000).

2019By contrast, "[t]he opponent of a forum selection clause bears the 'substantial burden' of showing that enforcement of a forum selection clause would be unfair and unreasonable." Melia v. Zenhire, Inc ., supra , quoting Cambridge Biotech Corp . v. Pasteur Sanofi Diagnostics , 433 Mass. 122 , 133, 740 N.E.2d 195 (2000).

1998Crockett has advanced no evidence that the forum selection clause in question is unenforceable because of fraud, undue influence or overreaching, see Ernest & Norman Hart Bros., Inc. v. Town Contr., Inc., 18 Mass. App. Ct. 60, 65-66 (1984); Graphics Leasing Corp. v. The Y Weekly, 1991 Mass. App. Div. 110, 113-114 , and has not, in fact, contested its validity.

1997Although not automatically dis-positive of the issue, it is relevant to the court’s consideration that the forum selection clause “was contained in an adhesion or take-it-or-leave-it contract whose provisions the party bringing the action was compelled to accept without argument or discussion.” Restatement (Second) of Conflict of Laws §80, comment c. 4 See also Ernest & Norman Hart Brothers, Inc. v Town Contractors, Inc., 18 Mass.App.Ct. 60, 66 (1984) (declining to enforce clause specifying Connecticut as the forum for suit where, inter alia, the forum selection clause “was part of a standard

2025“The opponent of a forum selection clause bears the ‘substantial burden’ of showing that enforcement of a forum selection clause would be unfair and unreasonable.” Melia, 462 Mass. at 182 , quoting Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 133 (2000).

2014“A party resisting the enforcement of a forum selection clause must establish that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court’ ’’; Boland at 825, quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972); accord, Cambridge Biotech Corp. v. Pasteur Sanoji Diagnostics, 433 Mass. 122, 130 (2000); Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée., 75 Mass.App.Ct. 27, 32 (2009); or that the contractual choice of forum was procured by “fraud, duress, the abuse of economic power,

2013See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991) (non-negotiable, boilerplate forum selection clause printed on back of passenger’s cruise-line ticket enforceable against passenger); Jacobson, 419 Mass. at 578 (inclusion in “standard form” contract “does not make the forum selection clause unenforceable”); Bohl 180 Ohio App.3d at 533 ; 906 N.E.2d at 455-56 (fact that forum selection clause “is embodied in a boilerplate form” does not make it unenforceable).

2005The contractual terms are set forth in two pages of fine print in the ticketing document. 5 A box on the first page states that: “Acceptance of this Passenger Ticket Contract by Passenger shall constitute the agreement of Passenger to these Terms and Conditions.” 6 The forum selection clause appears in par. 28 on the second page of the ticketing contract. 7 Because the manner and means of the delivery of the terms of the contract for passage did not fairly allow the Casavants “the option of rejecting the contract with impunity,” Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991), a

2026The 13Such a determination might require extensive preliminary litigation that could undermine the purpose of the FSC. 14Kim suggests that Massachusetts law is to the contrary; he relies on a decision stating, "We have found no Massachusetts case enforcing a forum selection clause or a limitations clause against a nonsignatory to the contract." Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 577 (2013), S.C., 478 Mass. 169 (2017), cert. denied sub nom.

2015I specifically asked the parties to brief the issue of the enforceability of the forum selection clause in light of Ajemian v. Yahoo!, Inc., 83 Mass.App.Ct. 565 (2013), a recent Appeals Court decision that was the only Massachusetts authority on the enforceability of contracts entered into by clicking “I Agree” on an electronic screen, which was the process by which, according to Uber, Lavitman had agreed to the forum selection clause.

2025To meet that burden, “[a] party resisting the enforcement of a forum selection clause must establish that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.’ ” Boland v. George S. May International Co., 81 Mass. App. Ct. 817, 820 (2012), quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972).

2019While construction and enforceability of a forum selection clause is not always fact-intensive, see Boland v. George S. May Int'l Co. , 81 Mass. App. Ct. 817 , 823, 969 N.E.2d 166 (2012), here von Schönau argues that these contractual provisions should be disregarded because a fiduciary relationship existed between the parties.

2016Likewise, although Mr. Lima contends that the forum selection clause is an unconscionable result of Jan-Pro’s “overweening bargaining power,” Karty v. Mid-America Energy, Inc., 74 Mass.App.Ct. 25, 29 (2009), he has adduced no facts specific to his case, or evidence of unfair conduct by Jan-Pro, that would indicate such presence.

2012In Karty v. Mid-America Energy, Inc., 74 Mass. App. Ct. 25 (2009), this court followed Jacobson and held valid a forum selection clause contained in a subscription agreement for the purchase of an interest in a limited liability partnership organized to drill and to operate oil wells in Kentucky.

1994Grace & Co. v. Hartford Accident & Indemnity Co., 407 Mass. 572 , 582 n.13 (1990) (“We see nothing inherently inappropriate in a forum-selection clause”); Morris v. Watsco, Inc., 385 Mass. 672, 674-75 (1982) (“[T]his court has similarly acknowledged and given effect to the law reasonably chosen by the parties to govern their rights under contracts”); Ernest & Norman Hart Brothers, Inc. v. Town Contractors, Inc., 18 Mass.App.Ct. 60, 65 (1984) (“In the light of present day trends, attorneys advising clients would be unwise to rely on the persistence of the Nute principle in future Massachusetts

1990We see nothing inherently inappropriate in a forum selection clause (see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 [1972]; Ernest & Norman Hart Bros. v. Town Contractors, Inc., 18 Mass. App. Ct. 60, 65 [1984]), or in a clause directing what substantive law should govern disputes concerning a contract (Morris v. Watsco, Inc., 385 Mass. 672, 674-675 [1982]).

1996Lambert v. Kysar, 983 F.2d 1110 , 1112 n. 1 (1st Cir. 1993) (citing LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 7 (1st Cir. 1984)).

1995“The Bremen rule, cited with approval by the Supreme Judicial Court, imposes ‘a heavy burden of proof . . . upon the party resisting enforcement of a forum selection clause to establish that its enforcement under the circumstances of the case is clearly unreasonable because of fraud, undue influence, overweening bargaining power or such serious inconvenience in litigating in the selected forum that the defendant is effectively deprived of his day in court.’ ” Graphics Leasing Corp. v. The Y Weekly, 1991 Mass.App.Div. 110, 113 (cites omitted); see also Lambert v. Kysar, 983 F.2d 1110 (1st Cir.

2025Carter’s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 293 (1st Cir. 2015) (“[I]t is the language of the forum selection clause itself that determines which claims fall within its scope.”), quoting Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009).

2025Carter’s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 293 (1st Cir. 2015) (“[I]t is the language of the forum selection clause itself that determines which claims fall within its scope.”), quoting Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009).

2014“A party resisting the enforcement of a forum selection clause must establish that ‘trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court’ ’’; Boland at 825, quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972); accord, Cambridge Biotech Corp. v. Pasteur Sanoji Diagnostics, 433 Mass. 122, 130 (2000); Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée., 75 Mass.App.Ct. 27, 32 (2009); or that the contractual choice of forum was procured by “fraud, duress, the abuse of economic power,

2012See, e.g., Baby Furniture Warehouse, 75 Mass. App. Ct. at 28-29 .

2009See also Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir. 2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1296-1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301-302 (5th Cir. 1998), cert. denied sub nom. de Penta v. Afram Carriers, Inc., 525 U.S. 1141 (1999); Richards v. Lloyd’s of London, 135 F.3d 1289 , 1296-1297 (9th Cir.), cert. denied, 525 U.S. 943 (1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.), cert. denied, 506 U.S. 1021 (1992); Moses

2000See Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir.), cert, denied, 506 U.S. 1021 (1992) (“The fact that an international transaction may be subject to laws and remedies different or less favorable than those of the United States is not a valid basis to deny enforcement [of a forum selection clause], provided that the law of the chosen forum is not inherently unfair”).

2002Therein, at Jacobson, supra at 579-80 , the Court adopted the California Supreme Court’s view [Nedlloyd Lines BV v. Superior Court, 3 Cal.4th 459, 469-70 (1992)] "that separate actions should not be encouraged.” The Court, inter alia gave as a general rule that a court may determine whether, in the particular circumstances of a case, the enforcement of a mandatory forum selection clause is fair and reasonable.

1995See Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 464 (1992), adopting principles of the Restatement (Second) of Conflict of Laws § 187 (1988 revision); Smith, Valentino & Smith, Inc., supra at 496 (enforcing clause calling for Pennsylvania forum, citing The Bremen v. Zapata Off-Shore Co., supra); Cal-State Business Prods. & Servs., Inc. v. Ricoh, 12 Cal. App. 4th 1666, 1679 (1993) (provision for New York forum enforced).

2000See id.

1993See Burger King Corp. v. Rudzewicz, supra at 479; Ganis Corp. of Calif. v. Jackson, 822 F.2d 194 (1st Cir. 1987).

1996Co., 407 Mass. 572 , 582 n.13 (1990), the court construed the clause in Morris as a choice-of-law clause rather than a forum selection clause. 2.

1994Grace & Co. v. Hartford Accident & Indemnity Co., 407 Mass. 572 , 582 n.13 (1990) (“We see nothing inherently inappropriate in a forum-selection clause”); Morris v. Watsco, Inc., 385 Mass. 672, 674-75 (1982) (“[T]his court has similarly acknowledged and given effect to the law reasonably chosen by the parties to govern their rights under contracts”); Ernest & Norman Hart Brothers, Inc. v. Town Contractors, Inc., 18 Mass.App.Ct. 60, 65 (1984) (“In the light of present day trends, attorneys advising clients would be unwise to rely on the persistence of the Nute principle in future Massachusetts

2019"Where, as here, 'the parties have expressed a specific intent as to the governing law, Massachusetts courts will uphold the parties' choice as long as the result is not contrary to public policy.' " Oxford Global Resources, LLC v. Hernandez , 480 Mass. 462 , 468, 106 N.E.3d 556 (2018), quoting Hodas v. Morin , 442 Mass. 544 , 549-550, 814 N.E.2d 320 (2004).

2014“As a rule, ‘[wjhere the parties have expressed a specific intent as to the governing law, Massachusetts courts will uphold the parties’ choice as long as the result is not contrary to public policy.’ ” Hodas v. Morin, 442 Mass. 544, 549-50 (2004) (citations omitted).

2009See also Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir. 2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1296-1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301-302 (5th Cir. 1998), cert. denied sub nom. de Penta v. Afram Carriers, Inc., 525 U.S. 1141 (1999); Richards v. Lloyd’s of London, 135 F.3d 1289 , 1296-1297 (9th Cir.), cert. denied, 525 U.S. 943 (1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.), cert. denied, 506 U.S. 1021 (1992); Moses

2000See Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir.), cert, denied, 506 U.S. 1021 (1992) (“The fact that an international transaction may be subject to laws and remedies different or less favorable than those of the United States is not a valid basis to deny enforcement [of a forum selection clause], provided that the law of the chosen forum is not inherently unfair”).

2009See also Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir. 2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1296-1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301-302 (5th Cir. 1998), cert. denied sub nom. de Penta v. Afram Carriers, Inc., 525 U.S. 1141 (1999); Richards v. Lloyd’s of London, 135 F.3d 1289 , 1296-1297 (9th Cir.), cert. denied, 525 U.S. 943 (1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.), cert. denied, 506 U.S. 1021 (1992); Moses

2000See Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir.), cert, denied, 506 U.S. 1021 (1992) (“The fact that an international transaction may be subject to laws and remedies different or less favorable than those of the United States is not a valid basis to deny enforcement [of a forum selection clause], provided that the law of the chosen forum is not inherently unfair”).

2009See also Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir. 2001); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1296-1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301-302 (5th Cir. 1998), cert. denied sub nom. de Penta v. Afram Carriers, Inc., 525 U.S. 1141 (1999); Richards v. Lloyd’s of London, 135 F.3d 1289 , 1296-1297 (9th Cir.), cert. denied, 525 U.S. 943 (1998); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.), cert. denied, 506 U.S. 1021 (1992); Moses

2000See Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 , 1297 (11th Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir.), cert, denied, 506 U.S. 1021 (1992) (“The fact that an international transaction may be subject to laws and remedies different or less favorable than those of the United States is not a valid basis to deny enforcement [of a forum selection clause], provided that the law of the chosen forum is not inherently unfair”).

2005While Trans National has shown that the Motion Defendants agreed to share long-distance service with Publishers, Trans National’s showing is “void of any purposeful intent on the part of the [Motion Defendants] to avail [themselves] of the privilege of conducting activities within [Massachusetts].” Droukas, 375 Mass. at 154 .

1998The burden of proof rested upon Leasecomm, Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978), to establish that Crockett individually engaged in activities cognizable under G.L.c. 223A, §3 as a predicate for the exercise of long-arm jurisdiction over a non-resident defendant, and that her contacts with Massachusetts were sufficiently substantial that due process would not be offended by compelling her to answer suit here.

2025Bank & Trust Co., 80 Mass. App. Ct. 720, 723 (2011).

2025First, Ajemian v. Yahoo!, Inc., 83 Mass. App. -------------------------------------------- [7] Grip alleges in the Complaint that, “[a]lthough Brazil was selected for logistical reasons, the parties understood that the potential business opportunity was not limited to Brazil.” Compl. ¶ 43. -12- Ct. 565, 577-578 (2013), in which the Court considered whether an online forum selection clause could be enforced against a nonsignatory to the contract.[8] Although the Appeals Court noted that it “found no Massachusetts case enforcing a forum selection clause or a limitations clause against a nonsigna

2025First, Ajemian v. Yahoo!, Inc., 83 Mass. App. -------------------------------------------- [7] Grip alleges in the Complaint that, “[a]lthough Brazil was selected for logistical reasons, the parties understood that the potential business opportunity was not limited to Brazil.” Compl. ¶ 43. -12- Ct. 565, 577-578 (2013), in which the Court considered whether an online forum selection clause could be enforced against a nonsignatory to the contract.[8] Although the Appeals Court noted that it “found no Massachusetts case enforcing a forum selection clause or a limitations clause against a nonsigna

2025Conn. 2009); Synthes, Inc. v. Emerge Medical, Inc., 887 F. Supp. 2d 598, 607 (E.D.

2025Carter’s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 293 (1st Cir. 2015) (“[I]t is the language of the forum selection clause itself that determines which claims fall within its scope.”), quoting Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009).

2025Carter’s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 293 (1st Cir. 2015) (“[I]t is the language of the forum selection clause itself that determines which claims fall within its scope.”), quoting Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009).