Cornus Corp. v. Geac Enterprise Solutions, Inc., 121509 FED9, 08-35901
|Opinion Judge:||KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges|
|Party Name:||CORNUS CORPORATION, an Oregon corporation, Plaintiff - Appellee, v. GEAC ENTERPRISE SOLUTIONS, INC., a Georgia corporation; AMSI, a GEAC Computer Inc. Company; INFOR GLOBAL SOLUTIONS (MICHIGAN) INC., a Georgia corporation, Defendants - Appellants.|
|Judge Panel:||Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.|
|Case Date:||December 15, 2009|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
NOT FOR PUBLICATION
Argued and Submitted November 5, 2009 Portland, Oregon
Appeal from the United States District Court No. 1:08-cv-03030-CL for the District of Oregon Owen M. Panner, District Judge, Presiding
Even if plaintiff waived its right to seek remand in the prior, virtually identical suit, that waiver did not extend to this case. The Cornus Partner Agreement provides: "No delay or failure in exercising any right hereunder . . . shall be deemed to constitute a waiver of such right" and "[t]his Agreement and any matters relating thereto shall be governed, construed and interpreted in accordance with the laws of Oregon." Non-waiver provisions are enforceable under Oregon law, at least so long as a party is alleged to have waived a right by a failure to act rather than by an affirmative act. See Boise Joint Venture v. Moore, 806 P.2d 707, 709 (Or. Ct. App. 1991). The district court therefore did not err when it held that plaintiff had not waived its right to seek remand in this case.
Neither does claim preclusion prevent plaintiff from seeking to enforce the forum-selection clause in this suit. Plaintiff could have, but did not, seek to remand the prior action that has been dismissed for failure to prosecute. But only...
To continue readingFREE SIGN UP