735 F.2d 380 (9th Cir. 1984), 83-4033, Colonial Leasing Co. of New England, Inc. v. Pugh Bros. Garage

Docket Nº:83-4033 to 83-4035.
Citation:735 F.2d 380
Party Name:COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., etc., Plaintiff/Appellant, v. PUGH BROTHERS GARAGE, Eugene Pugh and John Pugh, Defendants/Appellees. COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., etc., Plaintiff/Appellant, v. Harold BEST, etc., and H.B. Best, Inc., etc., Defendants/Appellees. COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., Plaintiff/
Case Date:June 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 380

735 F.2d 380 (9th Cir. 1984)

COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., etc.,

Plaintiff/Appellant,

v.

PUGH BROTHERS GARAGE, Eugene Pugh and John Pugh,

Defendants/Appellees.

COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., etc.,

Plaintiff/Appellant,

v.

Harold BEST, etc., and H.B. Best, Inc., etc., Defendants/Appellees.

COLONIAL LEASING COMPANY OF NEW ENGLAND, INC., Plaintiff/Appellant,

v.

Edward H. JONES, Jr., etc., Defendant/Appellee.

Nos. 83-4033 to 83-4035.

United States Court of Appeals, Ninth Circuit

June 18, 1984

Argued and Submitted May 9, 1984.

Page 381

Ridgway K. Foley, Jr., Mildred J. Carmack, Allan M. Muir, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for plaintiff/appellant.

Marilyn S. Bright, Atlanta, Ga., Charles P. Starkey, Weiss, Derr & DesCamp, James G. Rice, Wolf, Guthrie, Rice & Gordon, Portland, Or., for defendants/appellees.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY and FERGUSON, Circuit Judges, and INGRAM, [*] District Judge.

FERGUSON, Circuit Judge:

These three cases were consolidated for appeal. In each case, Colonial Leasing Company of New England, Inc. (Colonial) filed a complaint for breach of a leasing agreement against a lessee in another state. In each case, Colonial asserted personal jurisdiction over the defendant on the basis of a forum selection clause which was part of Colonial's standard form lease agreement. The district court dismissed all three actions for lack of personal jurisdiction on the ground that it would be unfair and unreasonable to enforce the forum selection clause under the facts of each case. We affirm.

FACTS

Colonial is a Massachusetts corporation having its principal place of business in Oregon. Colonial purchases equipment from manufacturers and vendors and leases it to businesses in Oregon and other states.

The defendants Pugh Brothers Garage, Eugene Pugh and John Pugh (Pugh Bros.) are citizens of Georgia who operate an auto repair business in Georgia. In 1980, Pugh Bros. contacted Major Muffler, Inc., a New York corporation, through Major Muffler's Atlanta, Georgia representative, to obtain a pipe-bending machine and other equipment. At Major Muffler's request, Pugh Bros. filled out a financial statement which Major Muffler submitted to Colonial. Colonial approved the lease application, and agreed to purchase the equipment from Major Muffler and lease it to Pugh Bros. Major Muffler informed Pugh Bros. that the leasing company had approved the application. Major Muffler shipped the pipe-bending machine to Pugh Bros. from Alabama. Colonial then sent Pugh Bros. the lease agreement and began billing Pugh Bros. monthly from Oregon. Pugh Bros. thought that they were dealing with Major Muffler, a New York corporation, and had no idea Colonial was involved. The standard form lease which they signed included in small print on the back a clause which provided:

22. CHOICE OF LAW. Choice of Laws. This Lease shall be considered to have been made in the State of Oregon, and shall be interpreted, and the rights and liabilities of the parties hereto determined, in accordance with the constitution, statutes, judicial decisions, and administrative regulations of the State of Oregon. Lessees waive all right to a trial by jury in any litigation relating to any transaction under this agreement.

Lessee hereby designates __________ as its agent for the purpose of accepting service of process within the State of Oregon and further agrees to arrange

Page 382

for any transmission of notice of such service of process from said agent to Lessee as Lessee deems necessary or desirable. Lessee consents to Oregon jurisdiction in any action, suit or proceeding arising out of the Lease, and concedes that it, and each of them, transacted business in the State of Oregon in entry into this Lease. In the event of suit enforcing this Lease, Lessee agrees that venue may be laid in the county of Lessor's address below.

This clause was not negotiated nor discussed by the parties. No agent was designated for service of process. Pugh Bros. did not know that they could be sued in Oregon as a result of that clause.

The defendant Edward H. Jones, Jr., dba Jones Sav'n Sams (Jones), is a citizen of Nevada. In December, 1979, Jones obtained a pipe-bending machine from Major Muffler Centers, Inc. The circumstances of the transaction were similar to those in the Pugh Bros. case. Jones thought that he was dealing with a company from New York.

The defendant Harold Best and H.B. Best, Inc., dba Harold's Service Center (Best), is a citizen of Missouri. In 1979, Best contacted Major Muffler to purchase a...

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