683 F.2d 718 (2nd Cir. 1982), 932, Bense v. Interstate Battery System of America, Inc.

Docket Nº:932, Docket 81-7879.
Citation:683 F.2d 718
Party Name:Robert L. BENSE, Plaintiff-Appellant, v. INTERSTATE BATTERY SYSTEM OF AMERICA, INC., Defendant-Appellee.
Case Date:July 06, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 718

683 F.2d 718 (2nd Cir. 1982)

Robert L. BENSE, Plaintiff-Appellant,



No. 932, Docket 81-7879.

United States Court of Appeals, Second Circuit

July 6, 1982

Argued April 8, 1982.

Page 719

Peter Banse, Rutland, Vt. (Keyser, Crowley, Banse, Abell & Facey, Rutland, Vt., of counsel), for plaintiff-appellant.

William F. Carroll, Dallas, Tex. (Coke & Coke, J. Michael Weston, W. Pruitt Ashworth, Crutsinger & Booth, John F. Booth, Sr., Dallas, Tex., Carroll, George, Hill & Pratt, Alan B. George, S. Scott Smith, Rutland, Vt., of counsel), for defendant-appellee.

Before TIMBERS, KEARSE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Plaintiff-appellant Robert L. Bense appeals from a final judgment entered on November 11, 1981, in the United States District Court for the District of Vermont dismissing his complaint for lack of proper venue.

Defendant-appellee Interstate Battery System of America, Inc. ("Interstate"), is a Texas corporation with its main offices in Dallas County, Texas. Interstate markets automobile storage batteries through a network of franchised distributors in 48 states. 1 From on or about February 24, 1970, until about June 19, 1981, Bense was Interstate's distributor for the State of Vermont and certain portions of the State of New York.

According to the contract signed by the parties on February 24, 1970, (hereinafter "the agreement"), Interstate could terminate the agreement upon ninety days notice to Bense, provided there was a showing of "due cause." On or about March 19, 1981, Bense received written notice from Interstate that it was terminating the agreement, supposedly because Bense had failed to meet his sales quotas, and the agreement was terminated on or about June 19, 1981.

On July 7, 1981, Bense filed the complaint herein against Interstate alleging violations of section 1 of the Sherman Antitrust Act and section 3 of the Clayton Antitrust Act, 15 U.S.C. §§ 1, 13. Bense alleged that the reason that Interstate had terminated the agreement was that he had refused to participate in a price-fixing plan proposed by Interstate. On August 12, 1981, Interstate moved to dismiss the complaint pursuant to Rule 12(b)(3) of the Fed.R.Civ.P., on the ground that the agreement provided that any action arising from the agreement could be brought only in Dallas County, Texas, and that venue in the District of Vermont was therefore improper.

On October 27, 1981, Chief Judge Holden filed a memorandum decision granting the motion, and on November 11, 1981, a final judgment was entered dismissing the action. We affirm.


Bense raises two issues on appeal: first, that the forum-selection clause of the agreement with Interstate is unenforceable as a matter of law; and second, in the alternative, that a choice-of-law provision in the agreement, which provides that the

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agreement is to be governed by Texas law, should be enforced to the extent that Texas law does not recognize contractual forum-selection clauses.


The forum-selection clause of the agreement provides:

"(t)he exclusive venue of any suits or causes of action arising directly or indirectly from this AGREEMENT shall be in Dallas County, Texas."

In addressing the question of whether this clause is enforceable, we note at the outset that the action undoubtedly arises "directly or indirectly" from the agreement. Although the complaint was brought pursuant to federal antitrust law, the gist of Bense's claim is that Interstate wrongfully terminated the agreement, thereby damaging Bense.

The venue provision for cases brought under the federal antitrust statutes is set forth in section 12 of the Clayton Act, 15 U.S.C. § 22, which provides:

"Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found."

Obviously, pursuant to this section Bense could have brought this action in the federal district court for the district which embraces Dallas County, Texas, since Interstate's main offices are located there. However, Bense argues that the Congressional purpose underlying the broad venue provision of section 12, was to promote vigorous private enforcement of the antitrust laws, and he contends that this precludes enforcement of contractual forum-selection clauses. However, Bense has made no showing that his antitrust action could not be prosecuted as vigorously in Texas as in Vermont, nor has he demonstrated that the Congressional purpose would be subverted by enforcement of forum-selection clauses. Bense cites no authority for the proposition that he could not waive by contract the Clayton Act's section 12 venue provision, and we are aware of none. At least two district courts have upheld such clauses: Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y.1978); A. C. Miller Concrete Products Corp. v. Quikset Vault Sales Corp., 309 F.Supp. 1094 (E.D.Pa.1970).

Analogously, the Supreme Court held in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), that the liberal venue provisions set forth in section 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, could be waived by contract. Alberto-Culver had sued Scherk in federal district court for violations of section 10(b) of the 1934 Act, 15 U.S.C. § 78jb. The contract between the parties provided that any dispute arising from the contract would be settled by arbitration to be conducted in Paris, France. The Court stated that

"(a)n agreement to arbitrate before a specified...

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