21 F.3d 1115 (9th Cir. 1994), 92-16993, Panhandle Irr., Inc. v. Coronado

Docket Nº:92-16993.
Citation:21 F.3d 1115
Party Name:PANHANDLE IRRIGATION, INC., Plaintiff-Appellee, v. Armando CORONADO, and Maria Coronado, Defendants-Appellants.
Case Date:March 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1115

21 F.3d 1115 (9th Cir. 1994)

PANHANDLE IRRIGATION, INC., Plaintiff-Appellee,

v.

Armando CORONADO, and Maria Coronado, Defendants-Appellants.

No. 92-16993.

United States Court of Appeals, Ninth Circuit

March 28, 1994

Submitted March 17, 1994. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court, for the District of Arizona, D.C. No. CV-90-00606-JMR; John M. Roll, District Judge, Presiding.

D.Ariz.

AFFIRMED.

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. § 1291. We affirm.

I


Notes:

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.§ 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...

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