Michaluk v. Credorax (USA), Inc.

• Decision Date: 13 May 2015
• Docket Number: No. 3D14–985.,3D14–985.
• Citation: 164 So.3d 719
• Parties: John MICHALUK, etc., Appellant, v. CREDORAX (USA), INC., etc., et al., Appellees.
• Court: Florida District Court of Appeals

164 So.3d 719

John MICHALUK, etc., Appellant

v.CREDORAX (USA), INC., etc., et al., Appellees.

No. 3D14–985.

District Court of Appeal of Florida, Third District.

May 13, 2015.

Kravitz & Co. PA, and Adam Kravitz, Coral Gables, for appellant.

Gunster, Yoakley & Stewart and Kenneth Bell, Raymond V. Miller, Allison J. Cammack and Amy Brigham Boulris, Miami, for appellees.

Before WELLS, ROTHENBERG and EMAS, JJ.

Opinion

EMAS, J.

John Michaluk d/b/a Nessport Consulting (“Michaluk”) appeals an order dismissing his complaint for improper venue. We hold that the forum selection clause at issue was permissive, and therefore reverse the order of the trial court dismissing the complaint for improper venue.

FACTS AND PROCEDURAL BACKGROUND

Credorax (Malta), Ltd. (“Credorax Malta”), a Malta company, is an acquiring bank which processes credit or debit card payments for sellers of products and services online. On November 1, 2011, Credorax Malta entered into an “Introducer Agreement” with Michaluk, a Canadian consultant, wherein it agreed to pay Michaluk a transaction fee in exchange for, inter alia, his assistance in soliciting new business and acquiring new clients.

Pursuant to paragraph 10 of the Introducer Agreement, which was titled “Governing Law and Jurisdiction,” the parties agreed as follows:

This Agreement shall be governed by and construed in accordance with the Laws of Malta and each party hereby submits to the jurisdiction of the Courts of Malta as regards any claim, dispute or matter arising out of or in connection with this Agreement, its implementation and effect.

Following a dispute over the payment of certain transaction fees, Michaluk filed a complaint in Miami–Dade County Circuit Court against Credorax Malta and Credorax USA, setting forth counts for fraud in the inducement, FDUPTA violations, unjust enrichment, and (against Credorax Malta only) breach of contract.

Credorax Malta and Credorax USA moved to dismiss the complaint for, inter alia, improper venue, asserting that the Introducer Agreement contains a mandatory forum selection clause, and thus, the claims could be brought only in Malta. Michaluk responded that the forum selection clause is permissive and not mandatory and thus, did not prohibit the filing of the cause of action in Miami–Dade. Following a non-evidentiary hearing, the trial court ruled that the language in the forum selection clause was mandatory and not permissive, and thus, entered a final order dismissing the complaint for improper venue.¹ The parties agree that the sole issue on appeal is whether the language of the forum selection clause in the Introducer Agreement is “permissive” or “mandatory.” We review this issue de novo. Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So.3d 592, 594 (Fla. 3d DCA 2013).²

ANALYSIS AND DISCUSSION

Our analysis begins with Manrique v. Fabbri, 493 So.2d 437 (Fla.1986), a case in which the Florida Supreme Court considered the broader issue of whether such contractual forum selection clauses were enforceable at all. The district courts were in disagreement over the enforceability of such clauses. The Manrique Court observed that although our court had “consistently held that contractual provisions requiring that future disputes be resolved in specified foreign jurisdictions are void as impermissible attempts to oust Florida of subject matter jurisdiction,” id. at 438 (citing Huntley v. Alejandre, 139 So.2d 911 (Fla. 3d DCA 1962) ), the Fourth District Court of Appeal had held that “parties to a contract may agree to submit to the jurisdiction of a chosen forum” under certain circumstances. Id. (citing Maritime Ltd. P'ship v. Greenman Adv. Assoc., Inc., 455 So.2d 1121 (Fla. 4th DCA 1984) ). In resolving the conflict, the Florida Supreme Court reviewed and relied upon federal decisions, including, most prominently, M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), in which the United States Supreme Court held that such forum selection clauses are prima facie valid and should generally be enforced:

[I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside. The correct approach [is] to enforce the forum clause specifically unless [the other party] could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.

Zapata, 407 U.S. at 15, 92 S.Ct. 1907.

Finding that the modern trend (and rapidly-growing majority view) recognized the presumptive enforceability of forum selection clauses³ , the Florida Supreme Court adopted the view of Bremen, approved the Fourth District's decision in Maritime, and held that “forum selection clauses should be enforced in the absence of a showing that enforcement would be unreasonable or unjust.” Id. at 440. However, the Manrique Court did not address whether the forum selection clause in that case was mandatory or permissive, remanding the case to the trial court for such a determination. Id.

A year later, the Court revisited the issue of mandatory vs. permissive forum selection clauses in Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274–75 (Fla.1987), and reaffirmed its holding in Manrique, noting:

Permissive clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum. See Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir.1985) ; Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956–57 (5th Cir.1974).

Since that time, the case law in this area has crystallized, and forum selection clauses are now routinely enforced. A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the clause, whereas “permissive forum selection clauses are essentially a ‘consent’ to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum.” Travel Exp. Inv. Inc. v. AT & T Corp., 14 So.3d 1224, 1226 (Fla. 5th DCA 2009) (quoting Shoppes Ltd. P'ship v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002) ). “Generally, a forum selection clause is mandatory where the plain language used by the parties indicates ‘exclusivity.’ ” Espresso Disposition, 105 So.3d at 595 (citing Golden Palm Hospitality, Inc. v. Stearns Bank Nat'l Ass'n, 874 So.2d 1231, 1236 (Fla. 5th DCA 2004) ). Absent words of exclusivity, a forum selection clause will be deemed permissive. Regal Kitchens, Inc. v. O'Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005).

For example, “[i]f the forum selection clause ‘states or clearly indicates that any litigation must or shall be initiated in specified forum,’ ” then the clause is mandatory and must be honored by the trial court in the absence of a showing that the clause is unreasonable or unjust. AT & T Corp., 14 So.3d at 1226 (internal quotations omitted) (holding forum selection clause was mandatory where it provided: “The parties consent to the exclusive jurisdiction of the courts located in New York City, USA.” (emphasis added.)) See also World Vacation Travel, S.A. de C.V. v. Brooker, 799 So.2d 410, 411 (Fla. 3d DCA 2001) (holding forum selection mandatory where it provided: “[B]oth parties agree and accept to be subjected to the jurisdiction and competence of the Administrative Authorities and Courts of the city of Cancun, Municipality of Benito Juarez, in the State of Quintana Roo, Mexico, and the Federal Consumer Office, forsaking any other jurisdiction which either party may claim by virtue of its residency.” (emphasis added)); Bremen, 407 U.S. at 2, 92 S.Ct. 1907 (construing forum selection clause to be mandatory where it provided: “Any dispute arising must be treated before the London Court of Justice.” (emphasis added)).

The diverse language used in forum selection clauses often prevents direct application of or reliance on decisions in other cases. In the instant case however, there are several cases construing nearly identical language to be a permissive, rather than mandatory, forum selection clause. For example, and as mentioned earlier, the Florida Supreme Court in Quinones cited with approval to Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir.1974). In that case, the parties entered into an employment agreement containing a forum selection clause which provided:

This agreement shall be construed and enforceable according to the law of the State of New York and the parties submit to the jurisdiction of the courts of New York.

Id.

When Keaty filed a breach of contract action in Louisiana, Freeport moved to dismiss, contending the forum selection clause mandated New York as the exclusive jurisdiction to maintain the action. The trial court agreed and dismissed Keaty's action. On appeal, the fifth circuit reversed the trial court's order, holding that the forum selection clause was permissive rather than mandatory. The language at issue in this case is virtually identical to that in Keaty.

Other federal cases involving nearly identical language have uniformly held such clauses to be permissive, rather than mandatory. See e.g., Redondo Constr. Corp. v. Banco Exterior de Espana, S.A., 11 F.3d 3 (1st Cir.1993) (following language held permissive: “Borrower and the Guarantors each hereby expressly submits to the jurisdiction of all Federal and State courts located in the State of Florida.”); LFR Collections LLC v. Phillip H. Taylor, M.D., J.D., P.A., 2011 WL 4736360 (M.D.Fla.2011) (following language held permissive: “The undersigned hereby irrevocably submits to the jurisdiction of any New York State or Federal Court located in New York City, over any action or proceeding arising out of any dispute between the undersigned and the Lender.”); Land–Cellular Corp. v. Zokaites, 2006 WL 3039964 (S.D.Fla.2006) (following language held permissive: ...