United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
Insurance Company sues (Doc. 1) fifteen contractors for
breach of an indemnity agreement. The Commonwealths of
Kentucky and Virginia contracted with the defendants to
“stabilize” or to “rehabilitate”
several defunct coal mines. (Doc. 1-2) Because the
commonwealths work only with a bonded contractor, FCCI agreed
to guarantee the defendants' satisfaction of the Virginia
and Kentucky contracts, and the defendants agreed to
indemnify FCCI if a commonwealth claimed against an FCCI
bond. FCCI paid, but the defendants allegedly failed to
indemnify FCCI for, at least $227, 718.89 in claims. The
indemnity agreement provides that an action for breach of the
indemnity agreement “shall be brought in a court of
competent jurisdiction in Sarasota County, Florida.”
(Doc. 1-1 at 9) Moving to dismiss for improper venue and
forum non conveniens, the defendants argue that
venue is improper in the Middle District of Florida and that
the defendants agreed to litigate only in Sarasota County.
Although including Sarasota County, the Tampa division sits
in Hillsborough County.
complaint attempts to invoke venue under 28 U.S.C. §
89(b) and under 28 U.S.C. § 1391(b). Not a venue
statute, Section 89(b) lists the counties that constitute the
Middle District of Florida. Section 1391(b) lays venue in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located.
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred . . .
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
concedes that venue in the Middle District of Florida is
improper under Section 1391(b)(1). The Hurleys reside in
Kentucky, and the corporate defendants reside in Kentucky or
West Virginia. (Doc. 1 at ¶¶ 2-16).
to the defendants, FCCI fails to show that a
“substantial part of the events or omissions giving
rise to the claim occurred” in the Middle District of
Florida. In a breach-of-contract action, venue lays in the
place of performance. American Carpet Mills v. Gunny
Corp., 649 F.2d 1056, 1059 (5th Cir. July 6, 1981). If a
contract omits mentioning the place of performance and if the
defendant fails to pay money owed under the contract, the
breach of contract occurs where the plaintiff resides, that
is, the place to which the defendant should have but
allegedly failed to send money. See, e.g.,
Florida Nursing Home Ass'n v. Page, 616 F.2d
1355 (5th Cir. 1980) (affirming venue in the Southern
District of Florida and observing that “[n]ot only does
appellant maintain a large office there but the payments
which the [appellee] is seeking were allegedly due it within
the Southern District where [the appellees] are
located”), rev'd on other grounds, 450
U.S. 147 (1981)). Although the indemnity agreement identifies
no address to which the defendants must send money, FCCI
resides in Sarasota County. (Doc. 34-1) Because a substantial
part of the “events or omissions giving rise” to
the action occurred in the Middle District of Florida - the
district to which the defendants should have but allegedly
failed to send money - venue is proper under Section
Forum non conveniens
venue lays under Section 1391 but the parties agreed to
litigate in a state court, the defendant may move to dismiss
under forum non conveniens. Atlantic Marine
Const. Co., Inc. v. U.S. Dist. Ct. for the Western Dist. of
Tex., 134 S.Ct. 568, 580 (2013). Except in an
extraordinary circumstance, the parties' agreement to
litigate in state court deserves deference. Atlantic
Marine, 134 S.Ct. at 581 (“[A] valid
forum-selection clause should be given controlling weight in
all but the most exceptional cases.”) (internal
quotation omitted). For several reasons, FCCI opposes (Doc.
34) the defendants' motion to dismiss under forum non
FCCI argues that the indemnity agreement permits an action in
the U.S. District Court for the Middle District of Florida.
But the indemnity agreement mandates suing in a “court
of competent jurisdiction in Sarasota County.”
(Doc. 1-1 at 9 (italics added)) Although the Middle District
of Florida includes Sarasota County, the Tampa division sits
in Hillsborough County. Because FCCI sued in a court
“in” Hillsborough County rather than a court
“in” Sarasota County, FCCI violated the
forum-selection provision. See Cornett v.
Carrithers, 465 Fed.Appx. 841 (11th Cir. Mar. 2, 2012)
(remanding an action removed to a court in Duval County where
the contract mandated litigating in Suwannee County);
Mobile Aggregates Recycling Servs., Inc. v. Collier
Aggregates, LLC, 2013 WL 2479782 (M.D. Fla. June 10,
2013) (Steele, J.) (dismissing an action for improper venue
where the district judge sat in Lee County but the contract
mandated litigating in Collier County).
FCCI cites a peculiar provision in the indemnity agreement
and argues that FCCI's suing in Hillsborough County
implicitly waived the defendants' right to enforce the
forum-selection provision. (Doc. 34 at 13-14) The indemnity
agreement provides FCCI “the right, in its sole
discretion, to waive venue . . . in Sarasota County.”
(Doc. 30-1 at 9) But the waiver provision appears meaningless
if applied literally to this circumstance.
“Venue” describes a convenient or mutually-agreed
location for the litigation; in every dispute, venue lays in
at least one court, whether federal, state, or foreign.
Because venue always lays somewhere, a party cannot
“waive venue” entirely - but a party can waive an
objection to, or a defense of, improper venue. See,
e.g., Booth v. Carnival Corp., 522 F.3d 1148,
1153 (11th Cir. 2008) (observing that “defendants can,
and often do, waive their defense of improper venue.”);
Rule 12(h), Federal Rules of Civil Procedure (providing that
a party waives an objection to improper venue by failing to
include the defense in either a ...