reservoir in Missouri, because under the Atlantic Marine rule, the
presence of a forum-selection clause required the public utility to
bring the suit in New York.5
Conclusion
In sum, parties to a contract need to be acutely aware of forumselection
clauses, and of the fact that they are now almost always
going to be enforced by the courts. Therefore, close attention should
be paid to these types of clauses in the contract negotiation process,
and clauses that would require litigation in a forum far from your
location or the site of the project should be avoided if possible. If you
fail to negotiate on this issue, be sure to keep your suitcase by the
door and your checkbook in your carry-on: a long and expensive trip
might be in your future if there is a need to go to court. t
Ryan Maloney is a partner in the construction practice at Foley &
Lardner, LLP, and is a Board certified construction lawyer by the
Florida Bar. He may be contacted at cmaloney@foley.com.
Andrew Underkofler is a law student at the University of Virginia
School of Law.
References
1. Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of
Texas, 134 S.Ct. 568 (2013).
2. U.S. ex rel. J-Crew Management, Inc. v. Atlantic Marine Const. Co., Inc.,
2012 WL 8499879 (W.D.Tex. 2012).
3. In re Atlantic Marine Const. Co., Inc., 701 F.3d 736 (5th Cir. 2012).
4. Weber v. PACT XPP Technologies, AG, 811 F.3d 758 (5th Cir. 2016).
5. In re Union Elec. Co., 787 F.3d 903, (8th Cir. 2015).
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is from the place where the dispute occurred or how expensive it
would be for parties and witnesses to litigate in the required forum.
Thus, in the Atlantic Marine case it was irrelevant that the plaintiff,
the project, and many of the witnesses were in Texas; the lawsuit
could only be allowed to proceed in Virginia – the home court of
the contractor, Atlantic Marine – because that is where the forumselection
clause stated was the exclusive venue for disputes.
Although the Supreme Court did state that courts could still
consider public interest factors, such as administrative difficulties
due to court congestion, local interest in having localized controversies
decided at home and interest in having the trial of a case in a
forum that is at home with the law, the Court also made clear that
such public interest factors will rarely defeat a forum-selection clause.
Instead, based on the Atlantic Marine case, forum-selection clauses
will be enforced in all but the “most extraordinary circumstances.”
The new approach is here to stay
Numerous cases following Atlantic Marine have made the power
of forum-selection clauses abundantly clear, generally enforcing
them no matter how remote the forum is from the location of the
actual dispute. For example, the Fifth Circuit Court of Appeal,
relying on Atlantic Marine, recently ruled that litigation brought
by an American businessman working in the United States for a
German company that had its primary business activities in the
United States had to be dismissed because Germany was the only
proper forum under the forum-selection clause in the parties’ contract.
4 Similarly, the Eighth Circuit also recently upheld a transfer
of a case from Missouri to New York even though a Missouri public
utility had filed the lawsuit in relation to a catastrophic failure of a
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