963 F.2d 1342 (10th Cir. 1992), 88-2746, Milk 'N' More, Inc. v. Beavert

Docket Nº:88-2746.
Citation:963 F.2d 1342
Party Name:MILK 'N' MORE, INC., a corporation, Plaintiff-Appellee, v. Jack D. BEAVERT, Defendant-Appellant.
Case Date:May 08, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1342

963 F.2d 1342 (10th Cir. 1992)

MILK 'N' MORE, INC., a corporation, Plaintiff-Appellee,

v.

Jack D. BEAVERT, Defendant-Appellant.

No. 88-2746.

United States Court of Appeals, Tenth Circuit

May 8, 1992

Page 1343

Gregory M. Hopkins of Hopkins & Erwin, P.A., Little Rock, Ark., for defendant-appellant.

Thaine Q. Blumer and Rik N. Siro of Blumer & Nally, Kansas City, Mo., for plaintiff-appellee.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and BABCOCK, District Judge. [*]

HOLLOWAY, Circuit Judge

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Jack D. Beavert (Beavert) appeals an order remanding this breach of contract action to a Kansas state court. The order was based on the court's view that the remand was required by an enforceable forum selection clause in the agreement. We agree and affirm.

I

Under the 1986 written contract, Beavert agreed to lease, with an option to purchase, some convenience stores from plaintiff-appellee Milk 'N' More, Inc. (Milk 'N' More), in southwestern Arkansas. A clause in the agreement provided that:

The parties herein have mutually agreed that said lease and the purchase option agreement contained herein, where applicable, shall be governed by the laws of the State of Kansas and the parties further agree that venue shall be proper under this agreement in Johnson County, Kansas.

I R. Doc. 1, Ex. A at 7 (emphasis added).

The instant suit was commenced by Milk 'N' More in the state District Court of Johnson County, Kansas. Following removal by Beavert, the district court was confronted with a motion by Beavert to transfer the suit to the United States District Court for the Western District of Arkansas, or alternatively to stay the proceedings until completion of litigation pending

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in Arkansas. About a month later, Milk 'N' More filed a motion for the federal court in Kansas to remand the case to the state District Court of Johnson County, Kansas, arguing that Milk 'N' More was entitled to such remand under the clause quoted above. Milk 'N' More maintains that the clause is a valid and enforceable forum selection clause.

The federal district court granted the motion to remand on the ground that the contractual agreement contained an enforceable forum selection clause, relying on the principle that forum selection clauses are "prima facie valid and should be enforced" unless shown to be unreasonable. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972); see I R. Doc. 20, at 1. Concluding that the provision was intended to benefit Milk 'N' More, the district court reasoned that forum selection clauses "should be enforced when invoked by the party for whose benefit they are intended." Furry v. First Nat'l Monetary Corp., 602 F.Supp. 6, 9 (W.D.Okla.1984); see I R. Doc. 20, at 2. The district court said that Beavert's motion to transfer or stay was moot in view of its decision to grant the motion to remand, and accordingly the motion to transfer or stay was denied. I R. Doc. 20, at 3.

On appeal, Beavert contends that the district judge erred in construing the clause as a mandatory agreement between the parties to resolve any disputes under the contract exclusively in the state court in Johnson County, Kansas; he says instead that the clause should have been construed as merely a permissive designation on venue. Beavert also contends that the district judge failed to properly consider his motion to transfer or stay the action.

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