Case Name: Arborwell, Inc. v. Plus Consulting, LLC, et al.
Case No.: 1-14-CV-263698

Defendant Plus Consulting, Inc. (“Plus”) filed a motion to stay or dismiss the action against it based on a forum selection clause found in a contract with the Plaintiff Arborwell, Inc. (“Arborwell”).

Resolution of this motion depends initially on the Court’s determination of whether the language of the forum selection clause is mandatory or permissive. See Animal Film, LLC v. D.E.J. Prods., Inc. (2011) 193 Cal.App.4th 466, 471. If the language is mandatory, the clause will be enforced without analysis of convenience. The only other issue considered is whether enforcement would be unreasonable. Id.

The Court first notes that the copies of the two contracts Plus provided to the Court are not entirely legible, nor are the copies attached to the Complaint. Both parties argue that the language in question provides in relevant part that “jurisdiction and venue be in the Court of Common Pleas of Allegheny County, Pennsylvania.” To the Court’s eye, it appears that the relevant word might be “lie” instead of “be,” but finds that the result does not differ.

The Court finds that the forum selection language in question is permissive, not mandatory. If “the clause merely provides for submission to jurisdiction and does not expressly mandate litigation exclusively in a particular forum, then the traditional forum non conveniens analysis applies. [Citation.]” (Ibid., citing Berg v. MTC Electronics Technologies Co. (1998) 61 Cal.App.4th 349, 358–360).)” Animal Film, supra, 193 Cal.App.4th at 471.

Plus’ argument that the forum selection clause is mandatory depends on its addition of words to the contract that are not found there. For example, Plus argues that the parties agreed that any dispute “will be” or would be resolved in Pennsylvania.
The contract in question does not use the word “will”, which appears to be the best argument Plus can find that the forum selection clause is mandatory.

The Court finds that the clause lacks the language of exclusivity in forum selection clauses that courts find require litigation in a particular forum. The contract language in question does not contain the types of words generally relied on to denote a mandatory forum, such as “shall have exclusive jurisdiction,” all actions arising from the contract shall be brought “only” in Pennsylvania, or any controversy “shall be litigated” in another state.

This clause resembles forum selection clauses that courts have held to be permissive because they provide for submission to jurisdiction in a particular forum without mandating it. All that the contract in question says is that jurisdiction and venue “be” or “lie” in Pennsylvania. The contract does not require that all litigation be brought there. Because the forum selection clause here merely provides for submission to jurisdiction and does not mandate litigation exclusively in Pennsylvania, the Court finds that it is permissive, not mandatory.

In light of the Court’s conclusion that Pennsylvania is a permissive and not a mandatory forum, the Court next must conduct a standard forum non conveniens analysis. Plus, as the moving party, bears the burden of proof. Animal Film, supra, 193 Cal.App.4th at 472-473. In essence, the only argument Plus made in both its moving papers and its reply was that the clause in question is a mandatory forum selection clause. Plus otherwise did not argue or analyze other forum convenience factors. “The existence of a permissive forum selection clause is one factor considered along with the other forum non conveniens factors in applying the traditional analysis. (Berg, at p. 359.)” Animal Film, supra, 193 Cal.App.4th at 471. It is not the only factor.

The first step is to determine if there is a suitable alternate forum to California. See Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. The Court finds that Pennsylvania does not provide a suitable alternate forum because another named corporate defendant based in California has not agreed or submitted to jurisdiction in Pennsylvania. Other factors such as convenience of the parties, the witnesses, and the location of the evidence all favor a California forum. The contract was performed in California. At least one Plus representative came to the Arborwell premises in the course of work on the project contemplated by the contracts. Plus provided no admissible evidence to support a finding that Pennsylvania would be a more convenient forum. The case involves a contract dispute, and California has a significant interest in providing a forum for its residents and resolving disputes over business conducted within the State.

The motion to dismiss or stay the action is DENIED, and Plus shall file pleadings in response to the Complaint within ten days. As the Court did not grant its motion, the request by Plus for attorney fees and costs is DENIED. The request by Arborwell for attorney fees is DENIED. The Court agrees that the code section relied on by Arborwell to request attorney fees, Code of Civil Procedure section 396(b), is not relevant to this motion.

Arborwell shall prepare the order.