46 F.3d 13 (5th Cir. 1995), 94-10463, Kevlin Services, Inc. v. Lexington State Bank

Docket Nº:94-10463.
Citation:46 F.3d 13
Party Name:KEVLIN SERVICES, INC., Plaintiff-Appellant, v. LEXINGTON STATE BANK, Defendant-Appellee.
Case Date:February 27, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 13

46 F.3d 13 (5th Cir. 1995)

KEVLIN SERVICES, INC., Plaintiff-Appellant,

v.

LEXINGTON STATE BANK, Defendant-Appellee.

No. 94-10463.

United States Court of Appeals, Fifth Circuit

February 27, 1995

Page 14

Stephen Cass Weiland Bernard H. Masters, Jack & Walker, Dallas, TX, for appellant.

Jeffrey M. Tillotson, George C. Lamb, III, Baker & Botts, Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Kevlin Services, Inc. ("Kevlin"), appeals the district court's granting of Defendant-Appellee Lexington State Bank's ("Lexington") motion to dismiss. Kelvin argues that the district court erred in failing to enforce a valid and enforceable choice of forum provision in the contract between the parties providing for venue in Dallas County, Texas. We REVERSE AND REMAND.

I.

On May 24, 1993, Kevlin, a Texas corporation with its principal place of business in Dallas County, Texas, and Lexington, a banking institution organized and existing under the laws of the State of North Carolina with its principal place of business in Lexington, North Carolina, executed a contract in which Lexington contracted with Kevlin to administer benefit services to Lexington customers who participated in their "BanClub" program. In exchange for Kevlin's services under the contract, Lexington was to promote the BanClub program to its customers and pay Kevlin a monthly fee based on the total number of customers who participated in the BanClub program. The pre-printed form contract contains a choice of forum provision stating:

This contract shall be interpreted and construed in accordance with the laws of the State of Texas. The legal venue of this contract and any disputes arising from it shall be settled in Dallas County, Texas.

Prior to the contract's effective date of October 1, 1993, Lexington notified Kevlin that it was withdrawing its acceptance of the contract.

On January 19, 1994, Kevlin filed suit in Dallas County, Texas alleging breach of contract. On February 18, 1994, Lexington removed the case to federal court on grounds of diversity. Lexington filed a motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer venue. The district court dismissed the case on April 7, 1994 on the...

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