forum selection clause in Alaska

2021Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 357 (Alaska 2001) (discussing contractual indemnity clause and holding that “the phrase ‘arising out of’ . . . is very broad”); Crowson v. Sealaska Corp., 705 P.2d 905, 910 (Alaska 1985) (discussing equipment lease contract “covering ‘any suit arising out of the lease’ ” and holding suit “based on fraud in the inducement, ‘arises’ out of the lease, even if the complaint alleges only” tort claims). 16 See Volkswagenwerk, 611 P.2d at 504 (enforcing forum selection clause for non-contractual tort claims despite party “characteriz[in

2015Corp., 817 P.2d 460, 464-66 (Alaska 1991) (construing the reach of the Alaska Workers' Compensation Act); Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 505-06 (Alaska 1980) (construing the scope of a contract's forum selection clause).

2021Co. v. Soil Processing, Inc., 944 P.2d 20 , 25 n.7 (Alaska 1997) (quoting Graham v. Rockman, 504 P.2d 1351, 1357 (Alaska 1972)). 24 Id. -11- 7539 Protech’s dismissal motion; ResQSoft briefly alluded to the issue during oral argument but waived the argument by not sufficiently raising it.25 ResQSoft points to no factual allegations in its complaint suggesting that the subcontract terms were not the terms agreed to during negotiations, that it was at a disadvantage during contract negotiations, or that it lacked notice of the forum selection clause designating Delaware as the forum (mentioned th

2021Co. v. Soil Processing, Inc., 944 P.2d 20 , 25 n.7 (Alaska 1997) (quoting Graham v. Rockman, 504 P.2d 1351, 1357 (Alaska 1972)). 24 Id. -11- 7539 Protech’s dismissal motion; ResQSoft briefly alluded to the issue during oral argument but waived the argument by not sufficiently raising it.25 ResQSoft points to no factual allegations in its complaint suggesting that the subcontract terms were not the terms agreed to during negotiations, that it was at a disadvantage during contract negotiations, or that it lacked notice of the forum selection clause designating Delaware as the forum (mentioned th

2021But ResQSoft did not make this argument to the superior court in written opposition to 22 See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1291-92 (9th Cir. 2006) (“A forum selection clause within an adhesion contract will be enforced ‘as long as the clause provided adequate notice to the [party] that he was agreeing to the jurisdiction cited in the contract.’ ” (quoting Intershop Commc’ns, AG v. Superior Court, 127 Cal.Rptr.2d 847 , 848 (2002))); Carnival Cruise Lines, Inc. v. Superior Court, 286 Cal.Rptr. 323, 328 (1991) (“[T]he forum selection clause is unenforceable . . . if the court deter

2021But ResQSoft did not make this argument to the superior court in written opposition to 22 See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1291-92 (9th Cir. 2006) (“A forum selection clause within an adhesion contract will be enforced ‘as long as the clause provided adequate notice to the [party] that he was agreeing to the jurisdiction cited in the contract.’ ” (quoting Intershop Commc’ns, AG v. Superior Court, 127 Cal.Rptr.2d 847 , 848 (2002))); Carnival Cruise Lines, Inc. v. Superior Court, 286 Cal.Rptr. 323, 328 (1991) (“[T]he forum selection clause is unenforceable . . . if the court deter

2021Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 357 (Alaska 2001) (discussing contractual indemnity clause and holding that “the phrase ‘arising out of’ . . . is very broad”); Crowson v. Sealaska Corp., 705 P.2d 905, 910 (Alaska 1985) (discussing equipment lease contract “covering ‘any suit arising out of the lease’ ” and holding suit “based on fraud in the inducement, ‘arises’ out of the lease, even if the complaint alleges only” tort claims). 16 See Volkswagenwerk, 611 P.2d at 504 (enforcing forum selection clause for non-contractual tort claims despite party “characteriz[in

2021But ResQSoft did not make this argument to the superior court in written opposition to 22 See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1291-92 (9th Cir. 2006) (“A forum selection clause within an adhesion contract will be enforced ‘as long as the clause provided adequate notice to the [party] that he was agreeing to the jurisdiction cited in the contract.’ ” (quoting Intershop Commc’ns, AG v. Superior Court, 127 Cal.Rptr.2d 847 , 848 (2002))); Carnival Cruise Lines, Inc. v. Superior Court, 286 Cal.Rptr. 323, 328 (1991) (“[T]he forum selection clause is unenforceable . . . if the court deter

2021But ResQSoft did not make this argument to the superior court in written opposition to 22 See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1291-92 (9th Cir. 2006) (“A forum selection clause within an adhesion contract will be enforced ‘as long as the clause provided adequate notice to the [party] that he was agreeing to the jurisdiction cited in the contract.’ ” (quoting Intershop Commc’ns, AG v. Superior Court, 127 Cal.Rptr.2d 847 , 848 (2002))); Carnival Cruise Lines, Inc. v. Superior Court, 286 Cal.Rptr. 323, 328 (1991) (“[T]he forum selection clause is unenforceable . . . if the court deter

2021Corp., 657 F. App’x 661, 662 (9th Cir. 2016) (“[If] a broad forum-selection clause is included in a contract and the parties raise non-contractual claims, the forum-selection clause can apply to the non-contractual claims, at least [if] ‘resolution of the claims relates to interpretation of the contract.’ ” (quoting Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509 , 514 (9th Cir. 1988))). 17 990 P.2d 616 (Alaska 1999). -7- 7539 did not arise out of the employment contract but rather were grounded in the federal Jones Act and common law maritime law.18 But the contract in Bodzai differed g

2021Protech responds, as it did in the superior court, that ResQSoft’s claims, however described, arise out of the subcontract and cannot be resolved absent interpretation and application of the subcontract’s terms. 13 (...continued) 1980) (“[I]t should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purpose be deprived of his day in court.” (quoting M/S Bremen, 407 U.S. at 18 )). 14 See Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (“The objecti

2021Fraud argument There also is a “reasonableness” standard when determining whether a forum selection clause is enforceable.26 Forum selection clauses are enforceable “absent a clear showing ‘that enforcement would be unreasonable and unjust, or that the clause 25 Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016) (“Generally, questions of whatever nature, not raised and properly preserved for review in the trial court, will not be noticed on appeal.”). 26 Crowson v. Sealaska Corp., 705 P.2d 905, 911 (Alaska 1985) (“In Volkswagenwerk, A.G. v. Klippan, GmbH . . . this court rejected the common law r

2021Protech responds, as it did in the superior court, that ResQSoft’s claims, however described, arise out of the subcontract and cannot be resolved absent interpretation and application of the subcontract’s terms. 13 (...continued) 1980) (“[I]t should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purpose be deprived of his day in court.” (quoting M/S Bremen, 407 U.S. at 18 )). 14 See Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (“The objecti

2021Commercial Elec., Inc. v. McLees, 101 P.3d 593, 599 (Alaska 2004); see also 17A C.J.S.

2021Fraud argument There also is a “reasonableness” standard when determining whether a forum selection clause is enforceable.26 Forum selection clauses are enforceable “absent a clear showing ‘that enforcement would be unreasonable and unjust, or that the clause 25 Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016) (“Generally, questions of whatever nature, not raised and properly preserved for review in the trial court, will not be noticed on appeal.”). 26 Crowson v. Sealaska Corp., 705 P.2d 905, 911 (Alaska 1985) (“In Volkswagenwerk, A.G. v. Klippan, GmbH . . . this court rejected the common law r

2021Contracts § 218 (2021) (“[A] claim of fraud in the inducement . . . arises when a party is induced . . . . to assent to something he or she otherwise would not have.”). 31 705 P.2d at 905 . 32 Id. 33 Id. at 907 . -15- 7539 in return for the bribe payments.”34 ResQSoft relies on Crowson to advocate the unenforceability of the subcontract’s forum selection clause, but ResQSoft neither alleged nor otherwise provided evidence of the kind of fraudulent conduct evident in Crowson.35 B.

2015Corp., 817 P.2d 460, 464-66 (Alaska 1991) (construing the reach of the Alaska Workers' Compensation Act); Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 505-06 (Alaska 1980) (construing the scope of a contract's forum selection clause).

2001See id. at 590 , 111 S.Ct. 1522 . [46] Because this case arises on summary judgment, our ruling is necessarily based on the evidentiary record that existed when the superior court entered its order.

2001See id. at 590 , 111 S.Ct. 1522 . [46] Because this case arises on summary judgment, our ruling is necessarily based on the evidentiary record that existed when the superior court entered its order.

1980After placing this heavy burden on a party attempting to show that a forum selection clause is unreasonable, the Supreme Court in Bremen approved of voiding such a clause on public policy grounds: A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision. 407 U.S. at 15 , 92 S.Ct. at 1916 , 2 L.Ed.2d at 523.

1980In Reavis v. Exxon Corp., 90 Misc.2d 980 , 396 N.Y.S.2d 774, 777 (App.Div.1977), the city of Caracas was designated as “a special domicile . . . subject to the jurisdiction of the Courts of the Federal District.” We also conclude that the instant forum selection clause encompasses the subject matter of this dispute.

1980In Reavis v. Exxon Corp., 90 Misc.2d 980 , 396 N.Y.S.2d 774, 777 (App.Div.1977), the city of Caracas was designated as “a special domicile . . . subject to the jurisdiction of the Courts of the Federal District.” We also conclude that the instant forum selection clause encompasses the subject matter of this dispute.