Court Procedures 55
The venue with respect to any action pertaining to this Agreement shall be the State of Illinois. The laws of the State of Illinois shall govern the application and interpretation of this Agreement.However, Appellee filed a lawsuit against Appellants alleging a breach of the agreement in MiamiDade County, Florida. In fact, Appellee filed four subsequent complaints—an initial complaint, amended complaint, second amended complaint, and third amended complaint—after each and every previous pleading’s dismissal was based upon venue as provided for in the agreement’s mandatory forum selection clause. Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit [a sworn statement] which states that, in drafting the agreement, Appellee
* * * copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida. In response, Appellants filed their motions to dismiss the third amended complaint, which the trial court denied.Florida appellate courts interpret a contractual forum selection clause under a de novo standard of review. [The courts review the issue anew, as if the lower courts had not ruled on the issue.] Likewise, as the trial court’s order denying appellant’s motion to dismiss is based on the interpretation of the contractual forum selection clause, this court’s standard of review is de novo. Therefore, the narrow issue before this court is whether the * * *
Agreement provides for a mandatory forum selection clause that is enforceable under Florida law.Florida courts have long recognized that forum selection clauses such as the one at issue here are presumptive valid. This is because forum selection clauses provide a degree of certainty to business contracts by obviating [preventing] jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation. Moreover, forum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices. [Emphasis added.]Because Florida law presumes that forum selection clauses are valid and enforceable, the party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable. Under Florida law, the clause is only considered unjust or
unreasonable if the party seeking avoidance establishes that enforcement would result in no forum at all. There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appellee failed to establish that enforcement would be unreasonable since the designated forum Illinois—does not result in Appellee’s having “no forum at all.”Further, as we have said on a number of occasions, if a forum selection clause unambiguously mandates that litigation be subject to an agreed upon forum, then it is error for the trial court to ignore the clause. Generally, the clause is mandatory where the plain language used by the parties indicates exclusivity. Importantly, if the forum selection clause states or clearly indicates that any litigation must or shall be initiated in a specified forum, then it is mandatory. Here, the agreement’s plain language provides that the venue for any action relating to a controversy under the agreement * * *
“shall be the State of Illinois.” The clear language unequivocally renders the forum selection clause
mandatory.Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses
based on their error in cutting and pasting the clause from another agreement. Of course, the origin of “cutting and pasting” comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with editing scissors, that had blades long enough to cut an 811⁄⁄1⁄11⁄1⁄2⁄2⁄2⁄2⁄inch-wide page, and then physically pasted them onto another page. Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.Accordingly, we reverse [the] trial court’s denial of the motions to dismiss Appellee’s third amended complaint on
the basis of improper venue, and remand for entry of an order of dismissal.Case 3.1 Continued
Legal Reasoning Questions
1. Compare and contrast a motion to dismiss with other pretrial motions. Identify their chief differences.
2. Why did the appellants in this case file a motion to dismiss?
3. What is the effect of granting a motion to dismiss?
