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Popple Construction, Inc. v. Kiewit Power Constructors Co.

United States District Court, M.D. Pennsylvania

April 12, 2018

POPPLE CONSTRUCTION, Inc., Plaintiff,
v.
KIEWIT POWER CONSTRUCTORS Co., Defendant.

          Judge Mariani

          REPORT AND RECOMMENDATION

          MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.

         I. Statement of Facts and of the Case

         This case, which comes before us for consideration of a motion to transfer this lawsuit filed by the defendant, (Doc. 5), invites this court to consider in a federal diversity lawsuit involving an alleged breach of contract the interplay between the parties' own contractual forum selection clause in their agreement and provisions of state law which prescribe different forum selection rules for certain statutory contract-related claims. Our consideration of this legal question is guided by the United States Supreme Court's observation that: “When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a . . . motion [to transfer] be denied.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 62 (2013).

         Guided by this legal tenet, we recommend, consistent with the decisions of other courts that have examined this precise question, that the parties' forum selection be honored and this motion to transfer be granted.

         With respect to this legal question, the pertinent facts can be simply stated: On September 28, 2017, the plaintiff, Popple Construction, Inc., filed a civil complaint against Kiewit Power Constructors arising out of a March 18, 2016 contract entered into between these parties. (Doc. 1.) In this diversity lawsuit Popple brought three causes of action against Kiewit, alleging breach of contract; a right to recovery in quantum meruit; and a breach of the Pennsylvania Contractor and Subcontractor Payment Act, 73 Pa. Cons. Stat. §§ 501-516 (“CASPA”).

         The contract negotiated by the parties, which lies at the heart of this lawsuit, contains a forum selection clause which provides, in part, as follows:

(a) . . . In the event of any dispute arising in whole or in part under this Agreement or out of the Project, the parties agree that the courts of the state of Illinois shall have sole and exclusive jurisdiction to resolve such dispute, the laws of the state of New York, except with regard to its choice of law rules shall govern the resolution of such dispute, and Subcontractor hereby irrevocably consents to jurisdiction and venue in the appropriate state or federal court in Illinois
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * .
(e) Each of the Parties hereby agrees that any legal proceedings that may arise under this Agreement shall be brought In the United States District Court for the Northern District of Illinois, located in Chicago, Illinois (and if such court does not have jurisdiction over a matter at controversy between the Parties, any state court located in Chicago, Illinois). Accordingly, each of the Parties hereby submits to the jurisdiction of the United States District Court for the Northern District of Illinois, located In Chicago, Illinois (and if such court does not have jurisdiction over a matter at controversy between the Parties, any state court located in Chicago, Illinois) for purposes of all legal proceedings that may arise under this Agreement. Each of the Parties irrevocably waives, to the fullest extent permitted by Applicable Law, any objection which it may have or hereafter have to the personal jurisdiction of such court or the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

(Doc. 1, Ex. A, ¶19) (emphasis added).

         Notwithstanding this clear contractual language set forth in the forum selection clause of the parties' agreement, Popple has filed this action in the United States District Court for the Middle District of Pennsylvania, citing a statutory forum selection provision found in CASPA, which provides that:

Making a contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in ...

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