From Casetext: Smarter Legal Research

John Boutari and Son v. Attiki Importers

United States Court of Appeals, Second Circuit
Apr 15, 1994
22 F.3d 51 (2d Cir. 1994)

Summary

holding that contractual provision stating that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts" was a permissive forum selection clause

Summary of this case from Hovensa LLC v. Kristensons-Petroleum, Inc.

Opinion

No. 1080, Docket 93-7904.

Argued February 24, 1994.

Decided April 15, 1994.

Scott H. Wyner, New York City (Winick Rich, P.C., of counsel), for plaintiff-appellant John Boutari and Son, Wines and Spirits, S.A.

Patricia Gallagher, Huntington, NY (McCarthy, McCarthy DeMartin, P.C., of counsel), for defendant-appellee Attiki Importers and Distributors Inc.

Appeal from the United States District Court for the Eastern District of New york.

Before: VAN GRAAFEILAND, JACOBS, Circuit Judges, and BEER, District Judge.

The Honorable Peter H. Beer, United States District Judge for the Eastern District of Louisiana, sitting by designation.


John Boutari and Sons, Wines and Spirits, S.A. appeals from a summary judgment of the United States District Court for the Eastern District of New York (Spatt, J.) which dismissed its claims against Attiki Importers and Distributors Incorporated for breach of contract, goods sold and delivered, and unjust enrichment, on the ground that the district court lacked jurisdiction to hear the matter due to a forum selection clause in the contract at issue. The district court also dismissed Attiki's counterclaim for breach of contract and failure to act in good faith. Both dismissals were without prejudice. For the reasons that follow, we reverse.

Boutari is a Greek corporation engaged in the business of producing and exporting wines and spirits. Attiki is a New York corporation which imports and distributes wines and spirits. On or about March 1, 1989, Boutari and Attiki entered into a written agreement which provided, among other things, that Attiki would act as Boutari's exclusive distributor in the United States for certain products from March 1, 1989 through December 31, 1990.

Article 14 of the Agreement contains the following forum selection clause, which is at the heart of the dispute on this appeal:

This Agreement shall be governed and construed according to the Laws of Greece.

Any dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts.

Boutari's principal offices are located in Thessaloniki, Greece; Attiki's principal offices are on Long Island in New York.

On February 5, 1992, Boutari commenced the instant suit against Attiki in the United States District Court for the Eastern District of New York. Boutari's complaint sought money allegedly owed by Attiki for goods shipped during the contract period. In its answer, Attiki denied all allegations of wrongdoing and asserted a number of affirmative defenses including lack of jurisdiction. Paragraph 24 of the answer sets forth that defense as follows:

This Court lacks jurisdiction over this matter and this answering defendant since the parties have contractually agreed that any dispute shall come within the jurisdiction of the competent Greek courts, specifically of the Thessaloniki Courts.

Attiki's answer also included a counterclaim alleging that Boutari failed to negotiate in good faith an extension of the agreement. Thereafter the parties proceeded with discovery. Attiki utilized the discovery process to depose in Nassau County, New York one of Boutari's officers, Thras Anastasiades, who resides in Greece. Discovery was completed by December 4, 1992. A pretrial order deadline was set for February 5, 1993, and that deadline was later extended by about a month.

On February 25, 1993, Boutari filed a motion for summary judgment. On April 7, 1993, Attiki filed a memorandum in opposition to Boutari's motion for summary judgment as well as a cross-motion for summary judgment asking the district court to dismiss Boutari's complaint on the ground that the Court lacked jurisdiction because of the forum selection clause in the contract.

The district court denied Boutari's motion for summary judgment and granted Attiki's, thereby dismissing all claims without prejudice. The district court held, among other things, that because of the contract's forum selection clause the "Court must dismiss the action based upon a lack of jurisdiction." In so doing, the district court clearly erred. The general rule in cases containing forum selection clauses is that "[w]hen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive." Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir. 1989); see also Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77-78 (9th Cir. 1987); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956-57 (5th Cir. 1974); Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1231-32 (11th Cir. 1985). Of course if mandatory venue language is employed, the clause will be enforced. Docksider, 875 F.2d at 764; see also Seward v. Devine, 888 F.2d 957, 962 (2d Cir. 1989); Sterling Forest Associates, Ltd. v. Barnett-Range Corp., 840 F.2d 249, 251-52 (4th Cir. 1988).

The choice of forum must be mandatory rather than permissive. Utah Pizza Service, Inc. v. Heigel, 784 F. Supp. 835, 837-38 (D.Utah 1992). "Although the word `shall' is a mandatory term, here it mandates nothing more than that the [Greek courts] have jurisdiction." Hunt Wesson, 817 F.2d at 77; Caldas Sons, Inc. v. Willingham, 791 F. Supp. 614, 619 (N.D.Miss. 1992).

The general rule above stated has been applied repeatedly in the district courts of this Circuit. See, e.g., Heyco, Inc. v. Heyman, 636 F. Supp. 1545, 1547-48 (S.D.N.Y. 1986); Leasing Service Corp. v. Patterson Enterprises, Ltd., 633 F. Supp. 282, 283-84 (S.D.N.Y. 1986); Credit Alliance Corp. v. Crook, 567 F. Supp. 1462, 1464-65 (S.D.N.Y. 1983); Coface v. Optique Du Monde, Ltd., 521 F. Supp. 500, 506 (S.D.N.Y. 1980); City of New York v. Pullman, Inc., 477 F. Supp. 438, 442 n. 11 (S.D.N.Y. 1979); First National City Bank v. Nanz, Inc., 437 F. Supp. 184, 186-87 (S.D.N.Y. 1975).

To the contrary is Asher v. Goldberg, 775 F. Supp. 709, 711 (S.D.N.Y. 1991), in which the district court held that the rule in Nanz (construing a contract provision that a particular place "shall have jurisdiction" as permissive rather than exclusive) was overruled by our opinion in Seward v. Devine, 888 F.2d 957 (2d Cir. 1989). However, Asher's reading of Seward is in error. Two of the three documents at issue in Seward specified venue as well as jurisdiction. Neither the analysis nor the result in Seward establishes a rule in this Circuit that exclusive jurisdiction is conferred by a contract term specifying which courts "shall have jurisdiction" in the event of a dispute.

As succinctly summarized by former Judge Weinfeld in Pullman,

an agreement conferring jurisdiction in one forum will not be interpreted as excluding jurisdiction elsewhere unless it contains specific language of exclusion. . . .

477 F. Supp. at 442 n. 11.

Judge Weinfeld also observed that "[t]he normal construction of the jurisdiction rules includes a presumption that, where jurisdiction exists, it cannot be ousted or waived absent a clear indication of such a purpose. . . ." Id. at 443. There is no such indication in the instant case. The clause at issue herein did not deprive the district court of jurisdiction.

As above stated, pretrial proceedings were substantially complete when Boutari's complaint was dismissed. Attiki has failed to demonstrate any prejudice if the litigation is consummated in the Eastern District of New York. Its counsel will encounter the same difficulties in interpreting Greek law whether the case is tried in New York or in Greece. Boutari's contention that Attiki's motion to dismiss was simply a tactical ploy for delay, may not be without merit. See, e.g., Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 68 (2d Cir. 1981) (Van Graafeiland, J., concurring). In any event, the district court erred in holding that it was without jurisdiction, and its judgment of dismissal is reversed. The matter is remanded to the district court with instructions to retain jurisdiction and dispose of the litigation on the merits.


Summaries of

John Boutari and Son v. Attiki Importers

United States Court of Appeals, Second Circuit
Apr 15, 1994
22 F.3d 51 (2d Cir. 1994)

holding that contractual provision stating that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts" was a permissive forum selection clause

Summary of this case from Hovensa LLC v. Kristensons-Petroleum, Inc.

holding that a forum-selection clause was permissive because it did not expressly indicate that the designated jurisdiction was exclusive

Summary of this case from Counsel Financial Services, LLC v. Dobson Firm, LLC

holding that a forum-selection clause which stated that, "any dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts," was permissive rather than mandatory

Summary of this case from Mak Marketing, Inc. v. Kalapos

holding that forum selection clause reading "any dispute . . . shall come within the jurisdiction of the competent Greek Courts" was permissive because "shall" in this context only implied that the Greek courts could have jurisdiction, not that they had exclusive jurisdiction

Summary of this case from Valley National Bank v. Greenwich Insurance Company

holding that a clause that provided that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts" was not mandatory where it mandated "nothing more than that the [Greek courts] have jurisdiction"

Summary of this case from City of New Orleans v. Municipal Admin. Serv.

holding a forum-selection clause to be permissive which stated that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts"

Summary of this case from Reliance Ins. Co. v. Six Star, Inc.

holding the forum selection clause, “[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts,” as permissive

Summary of this case from Am. First Fed. Credit Union v. Soro

finding contract language stating that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts" to be a permissive forum selection clause

Summary of this case from Indian Harbor Ins. Co. v. NL Envtl. Mgmt. Servs., Inc.

finding forum selection clause, in the absence of terms conferring exclusive jurisdiction on specific courts, to be permissive

Summary of this case from Cynergy Systems, Inc. v. Bright School, Inc.

finding that "[w]hen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive, [unless] mandatory venue language is employed"

Summary of this case from Universal Grading Service v. eBay, Inc.

finding a forum selection clause mandatory when venue and jurisdiction were specified with mandatory or exclusive language

Summary of this case from Salis v. Amer. Export Lines Hoegh Autoliners Inc.

finding "[w]hen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive, [unless] mandatory venue language is employed"

Summary of this case from The Hongkong Shanghai Banking Corp. v. Suveyke

finding the district court clearly erred in dismissing a case for lack of jurisdiction based on a forum selection clause that designated that all disputes would come within the jurisdiction of the courts of Greece, reasoning "[t]he general rule in cases containing forum selection clauses is that `[w]hen only jurisdiction is specified the clause will generally not be enforced without some further language indicating the parties' intent to make jurisdiction exclusive.'"

Summary of this case from Intercoast Capital Co. v. Wailuku River Hydroelectric LTD

finding that the clause was only a consent to jurisdiction clause, not a mandatory forum selection clause; instructive here, in the proper place, because of the contrast between "shall come within the jurisdiction" in the Boutari contract, plainly only a consent to jurisdiction, and "will be brought" in the Terra-MCC agreement, which just as plainly indicates the exclusive venue as well as jurisdiction

Summary of this case from Terra Int'l., Inc. v. Miss. Chem. Corp.

finding that clause providing that "[a]ny dispute arising between the parties hereunder shall come within the jurisdiction of the competent Greek Courts" was not exclusive because it only mandated that Greek courts had jurisdiction

Summary of this case from Mabon Ltd. v. Afri-Carib Enterprises, Inc.

concluding the clause "shall come within the jurisdiction of the competent Greek Courts, specifically of the Thessaloniki Courts," with no mention of venue, merely conferred jurisdiction but did not exclude jurisdiction elsewhere

Summary of this case from Mansfield Heliflight, Inc. v. Borough

reversing dismissal based on permissive choice of forum clause

Summary of this case from Phillips v. Audio Active

reversing district court's dismissal for improper venue based on a permissive forum selection clause; "The choice of forum must be mandatory rather than permissive."

Summary of this case from Simon v. Foley

reversing district court's dismissal for improper venue based on a permissive forum selection clause; "The choice of forum must be mandatory rather than permissive."

Summary of this case from Simon v. Foley

rejecting contention that "exclusive jurisdiction is conferred by a contract term specifying which courts `shall have jurisdiction' in the event of a dispute"

Summary of this case from Phoenix Global Ventures, LLC v. Phoenix Hotel Associates

In Boutari and Son v. Attiki Importers, 22 F.3d 51, 53 (2d Cir.1994), we ruled that a forum selection clause that only “conferred” jurisdiction on a foreign forum, rather than “required” such jurisdiction, was ineffective to deny venue to the local federal forum.

Summary of this case from Martinez v. Bloomberg LP

applying federal precedent to ascertain meaning of forum clause where parties had elected Greek law

Summary of this case from Phillips v. Audio Active

noting that the term "exclusive" is a mandatory term

Summary of this case from Absolute Activist Master Value Fund, Ltd. v. Ficeto

noting distinction between mandatory and permissive forum selection clauses

Summary of this case from Prod. Res. Grp., L.L.C. v. Martin Prof'l

noting the general rule that forum selection clauses will only be enforced when jurisdiction is exclusive

Summary of this case from Marsh USA, Inc. v. Karasaki
Case details for

John Boutari and Son v. Attiki Importers

Case Details

Full title:JOHN BOUTARI AND SON, WINES AND SPIRITS, S.A., PLAINTIFF-APPELLANT, v…

Court:United States Court of Appeals, Second Circuit

Date published: Apr 15, 1994

Citations

22 F.3d 51 (2d Cir. 1994)

Citing Cases

Phillips v. Audio Active

The second step requires us to classify the clause as mandatory or permissive, i.e., to decide whether the…

Gennock v. Lucas Energy, Inc.

A forum selection clause will be enforced where venue is specified through mandatory language. Docksider,…