145 F.3d 505 (2nd Cir. 1998), 97-7466, Evolution Online Systems, Inc. v. Koninklijke PTT Nederland N.V.

Docket NºDocket No. 97-7466.
Citation145 F.3d 505
Party Name46 U.S.P.Q.2d 1847 EVOLUTION ONLINE SYSTEMS, INC., Plaintiff-Appellant, v. KONINKLIJKE PTT NEDERLAND N.V., KPN Multimedia, B.V., PTT Telecom B.V., planet internet BVIO and Pieter Van Hoogstraten, Defendants-Appellees,
Case DateMay 27, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 505

145 F.3d 505 (2nd Cir. 1998)

46 U.S.P.Q.2d 1847

EVOLUTION ONLINE SYSTEMS, INC., Plaintiff-Appellant,

v.

KONINKLIJKE PTT NEDERLAND N.V., KPN Multimedia, B.V., PTT

Telecom B.V., planet internet BVIO and Pieter Van

Hoogstraten, Defendants-Appellees,

Docket No. 97-7466.

United States Court of Appeals, Second Circuit

May 27, 1998

Argued Jan. 27, 1998.

Page 506

Philip Pierce, New York City, for Plaintiff-Appellant.

David Eames, New York City, for Defendants-Appellees.

Before: CALABRESI, CABRANES, and HEANEY, [*] Circuit Judges.

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HEANEY, Circuit Judge:

I.

Evolution Online Systems, Inc. ("Evolution") appeals from the March 17, 1997 order of the United States District Court for the Southern District of New York (Rakoff, Judge ), which dismissed Evolution's complaint for breach of contract, copyright infringement, and quantum meruit filed against Koninklijke PTT Nederland N.V., KPN Multimedia, B.V., PTT Telecom B.V., Planet Internet BVIO, and Pieter van Hoogstraten (collectively "Koninklijke") without prejudice as to Evolution bringing its claim in the Netherlands. We vacate and remand to the district court for proceedings consistent with this opinion.

II.

In the summer of 1994, Pieter van Hoogstraten, vice president and chief operations officer of Koninklijke, began negotiating with representatives of Evolution for the production of software and the provision of technical expertise by Evolution for a computer network in the Netherlands. In late September of that year, the parties exchanged letters outlining the terms of an agreement. In its letter to Evolution, Koninklijke indicated that it required the approval of its shareholders to enter into an agreement.

Subsequently, the parties exchanged draft contracts containing a provision indicating that Dutch law would apply to the contract and that conflicts arising under the contract would be resolved in a forum in the Netherlands. 1 There continued to be differences with respect to other terms, and the parties did not enter into a written agreement.

Although the parties had not reached a written agreement, Koninklijke paid Evolution over $400,000, starting with a $90,000 payment on October 12, 1994, to create computer software programs and provide technical services. Meanwhile, Evolution organized itself as a New York corporation, opened a corporate bank account, leased office space, and hired programmers to work on what Evolution understood to be its agreement with Koninklijke. On July 25, 1995, Koninklijke terminated its arrangement with Evolution, asserting that Evolution failed to meet deadlines or provide usable programs, thereby forcing Koninklijke to pay over $1,000,000 to other companies to provide what it had expected from Evolution.

Evolution filed an action in the United States District Court for the Southern District of New York against Koninklijke, claiming breach of contract, copyright infringement, and quantum meruit. Koninklijke moved to dismiss the complaint on several grounds: the district court lacked subject matter jurisdiction to hear Evolution's copyright claim, the action should be brought in the Netherlands pursuant to the parties' agreement on forum selection, and the doctrine of forum non conveniens militated dismissal in favor of a forum in the Netherlands. The district court granted Koninklijke's motion to dismiss, incorporating its comments in an open-court dialogue with counsel as the basis for its decision.

As an initial matter, the court addressed the issue of an underlying agreement between the parties by stating:

What you had it looked to the court was you had an agreement, if you had one at all, you had, and, obviously, the plaintiff is estopped from denying an agreement since you are suing on the basis of an agreement, you had an agreement some of the terms of which had not yet been finalized.

The court then found that the parties agreed to a mandatory forum-selection clause requiring Dutch law to apply to any agreement between the parties and that any conflict would be resolved in the Netherlands. 2

After finding that the parties had reached agreement on the forum-selection clause, the

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court stated that the "mandatory agreement of the parties ... [renders] this court ... effectively without jurisdiction." 3 Rejecting Evolution's argument that the Netherlands was an improper forum for Evolution's claims, 4 the district court granted Koninklijke's motion to dismiss without prejudice as to Evolution raising its claims in the Netherlands.

Evolution appeals, arguing that the district court erred in finding an agreement on a mandatory forum-selection provision, that the district court should have applied a forum non conveniens analysis prior to enforcing the clause, 5 and that such an analysis would have revealed that the federal district court should be the venue for the dispute.

III.

In an appeal of a district court's dismissal under Rule 12, 6 "we review factual findings for clear error and legal conclusions de novo." Wake v. United States, 89 F.3d 53, 57 (2d Cir.1996) (citation omitted). Based on the district court's findings of fact, our initial inquiry of whether a binding contract existed is one of law. See Shann v. Dunk, 84 F.3d 73, 77 (2d Cir.1996) (citation omitted).

Under New York contract law, parties may enter into a contract orally even though they contemplate later memorializing their agreement in writing. See Ciaramella v. Reader's Digest Ass'n, 131 F.3d 320, 322 (2d Cir.1997). If, however, the parties do not intend to be bound absent a writing, they will not be bound until a written agreement is executed. See id. (citations omitted). In the instant case, then, the existence of a contract will depend on whether Evolution and Koninklijke reached agreement on material terms, and whether they intended to be

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bound to that agreement absent an executed writing. To answer the latter question, a court applies the analysis provided by Winston v. Mediafare Entertainment Corp., 777 F.2d 78 (2d Cir.1985). The Winston analysis requires a court to consider several factors: (1) whether the parties have expressly reserved the right not to be bound without a written contract; (2) whether there has been partial performance of the contract; (3) whether the parties have agreed to all of the terms of the alleged contract; and (4) whether the alleged agreement is the type that is usually committed to writing. See id. at 80 (citations omitted). No single factor is dispositive. See Ciaramella, 131 F.3d at 323 (citation omitted).

After carefully reviewing the record, we conclude that although there may be sufficient evidence to support a finding that a contract was formed, 7 we are unsure, given the brevity and ambiguity of the district court's opinion, whether the district court made a finding that a contract existed as against merely determining that there was an agreement as to a forum-selection clause. 8 In the absence of a clear finding of a contract, the district court's determination that the parties reached agreement on a forum-selection clause was premature. It is clear from the facts before us that the language upon which the district court based its finding of a forum-selection agreement specifically related to any dispute arising from the contract that the parties were negotiating. Thus, if no contract exists, the language of the forum-selection clause cannot logically deprive Evolution of its significant right of access to the courts of the United States.

On remand, the district court must conduct a proper Winston analysis to determine whether Evolution and Koninklijke entered into a contract. If so, the court must then consider whether that contract contains a forum-selection agreement. If the district court finds a contract and again determines the parties agreed to a forum-selection clause, we note that the court must address whether application of the clause to Evolution's claim is proper. 9

In addition, we point out that the district court's comments indicate that the court concluded that its finding of a mandatory forum-selection clause effectively ousted the court's jurisdiction to consider Evolution's claims. That is not the proper analysis for applying a forum-selection clause.

We are guided in the application of a forum-selection clause in international disputes by M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). See also New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir.1997) (applying M/S Bremen rule). 10 Under M/S

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Bremen, a mandatory...

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