Petition of International Precious Metals Corp.

• Citation: 917 F.2d 792
• Decision Date: 24 October 1990
• Docket Number: No. 89-2386,89-2386
• Parties: PETITION OF INTERNATIONAL PRECIOUS METALS CORPORATION; Peter E. Phass.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 792

917 F.2d 792

PETITION OF INTERNATIONAL PRECIOUS METALS CORPORATION;

Peter E. Phass.

No. 89-2386.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1990.

Decided Oct. 24, 1990.

Robert Lawrence Bonner, Greer, Homer & Bonner, P.A., Miami, Fla., argued (Richard B. Salzman, Greer, Homer & Bonner, P.A., Miami, Fla., Neil C. Williams, Horack, Talley, Pharr & Lowndes, Charlotte, N.C., on the brief), for petitioners.

David Russell Badger, David R. Badger & Associates, P.A., Charlotte, N.C., for respondents.

Before WIDENER and WILKINS, Circuit Judges, and KELLAM, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

WIDENER, Circuit Judge:

International Precious Metals Corporation ¹ petitions the court for a writ of mandamus to require the district court to transfer a case in order to enforce a forum selection clause. We are of opinion that International has an adequate alternative means for relief and deny the petition.

The McNeills live in Marion, North Carolina. After responding to International's advertisements in North Carolina, the McNeills invested $32,911.25 with International to invest in commodities futures. Part of the contract with International that the McNeills signed stated that all disputes were subject to the jurisdiction of the U.S. District Court for the Southern District of Florida, or the courts of the State of Florida, and any actions filed would be filed there. Venue was established by the contract as Broward County, Florida. The McNeills lost the money they had invested with International. On that account, the McNeills sued International in the district court in the Western District of North Carolina alleging commodities fraud, racketeering, common law fraud and deceit, breach of fiduciary duty, violations of the North Carolina Securities Act and willful negligence.

International sought enforcement of the forum selection clause before the district court by moving for dismissal or transfer of venue to the Southern District of Florida. The district court denied the motion, which denial International appealed to this court. In the interim, the Supreme Court decided Stewart Organization Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). We remanded for the district court to reconsider in the light of Stewart. McNeill v. International Precious Metals Corp., 872 F.2d 418 (4th Cir.1989) (unpublished). On remand, the district court again denied the motion to transfer or dismiss. International now seeks mandamus. Since the district court's second ruling, the Supreme Court has decided Lauro Lines v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989).

This case turns on the availability of the writ of mandamus to direct a district court to transfer a case to another district because of a forum selection clause. In Lauro Lines v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989), the Supreme Court considered whether a district court's order denying a motion to dismiss on the basis of a contractual forum selection clause is immediately appealable as a collateral final order. The Court noted on p. 4544 that, since an order denying a motion to dismiss on the ground of the forum selection clause was not a final decision on the merits, to be immediately appealable it must fall "within the 'narrow exception to the normal application of the final judgment rule [that] has come to be known as the collateral order doctrine,' " (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, ----, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989)). The Court said that for the order to fall within the Cohen exception ² it must satisfy three conditions: "It must 'conclusively determine the disputed question', 'resolve an important issue completely separate from the merits of the action' and 'be effectively unreviewable on appeal from final judgment.' " Lauro Lines, 490 U.S. at ----, 109 S.Ct. at 1978 (quoting Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985)). The Supreme Court held that the order denying the motion to dismiss was not immediately appealable because it failed to satisfy the third condition, that it be effectively unreviewable on appeal from final judgment. The Court stated that the "[p]etitioner's claim that it may be sued only in Naples, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage...." Lauro Lines, 490 U.S. at ----, 109 S.Ct. at 1979. ³

Discussing the writ of mandamus, in reversing a court of appeals which had issued the writ as a way of reviewing a grant of a new trial, the Supreme Court in Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980), stated that "[o]nly exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." And the Court went on to state that for mandamus to issue a requirement is that "a party seeking issuance have no other adequate means to attain the relief he...