Panhandle Irr., Inc. v. Coronado, 92-16993

• Decision Date: 17 March 1994
• Docket Number: No. 92-16993,92-16993
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. PANHANDLE IRRIGATION, INC., Plaintiff-Appellee, v. Armando CORONADO, and Maria Coronado, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1115

21 F.3d 1115

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

PANHANDLE IRRIGATION, INC., Plaintiff-Appellee, v. Armando CORONADO, and Maria Coronado, Defendants-Appellants.

No. 92-16993.

United States Court of Appeals, Ninth Circuit.

Submitted March 17, 1994. ^*

Decided March 28, 1994.

Before: D.W. NELSON, BOOCHEVER and BEEZER, Circuit Judges.

MEMORANDUM ^**

Armando and Maria Coronado (collectively "the Coronados") seek reversal of the district court's judgment in favor of Panhandle Irrigation, Inc. ("Panhandle"). The Coronados contend that the district court erroneously declined to decide whether it had subject matter jurisdiction over the Panhandle action. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

In their brief, the Coronados characterize this appeal as a challenge to the district court's refusal to consider, or to reconsider, whether it had subject matter jurisdiction over the Panhandle action. Because they admit that the district court had jurisdiction over Panhandle's claim pursuant to 28 U.S.C. Sec. 1331, ¹ we construe the Coronados' appeal as challenging the district court's refusal to give effect to the forum selection clause in the joint venture agreement that was the subject matter of this action. The Coronados' argument is properly cast as whether the district court erred in concluding that a defense based on a choice of forum clause is waivable and whether the Coronados waived this defense by failing to bring it squarely to the court's attention.

A

The Coronados are initially correct that the question of the district court's lack of subject matter jurisdiction is not waivable and may be raised at any time, including on appeal. Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir.1975). A defense based on a forum selection clause in the parties' contract is, however, properly characterized as a question of venue. Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 513 (9th Cir.1988). Although we must consider forum selection clauses as prima facie valid, see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972), defenses based on these clauses are fully waivable. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir.1988).

B

When the district court's action is properly characterized as a refusal to revisit a defense based on improper venue, the Coronados' allegation of error fails.

The failure to raise a defense based on improper venue in conjunction with a Rule 12(b)(6) motion to dismiss constitutes a waiver of that defense. See King v. Russell, 963 F.2d 1301, 1305 (9th Cir.1992), cert. denied, 113 S.Ct. 1263 (1993); Fed.R.Civ.P. 12(g) and (h).

Our review of the record indicates that the Coronados failed to present their defense squarely in their motion to dismiss Panhandle's complaint. The Coronados' Rule 12(b)(6) motion failed to invoke any defense based on a forum selection clause in the joint venture agreement. The bare statement that "[a]ll of the parties submitted themselves to the jurisdictions of the courts of Mexico" hardly sufficed to put the issue squarely before the district court. The Coronados' reply to Panhandle's opposition to their motion addressed the existence of the forum selection clause, but only obliquely. Buried within a multi-page account of the parties' business dealings is the statement that "[u]nder this contract, Mr. Coronado agreed ... to litigate any contract problem in Hermosillo, Sonora, Mexico" and a reference to the pertinent exhibits. The Coronados, however, failed to cite relevant case law or to clearly set forth an argument that the action should be dismissed on the...