Outbound-Forum-Selection Clause

Ex parte Killian Construction Co., [Ms. 1170696, Nov. 2, 2018] __ So. 3d __ (Ala. 2018). This unanimous decision by Justice Mendheim issues a writ of mandamus to the Baldwin Circuit Court directing it to vacate its order denying a motion to dismiss a breach of contract action based on improper venue. Defendants Killian and its employee Christian Mills moved to dismiss the action based upon an outbound-forum-selection clause requiring that “[a]ny dispute arising under or related to this Subcontract Agreement, performance of work or provision of any materials pursuant hereto, shall be brought only in state court in Greene County, State of Missouri....” Ms. *2-3.

In issuing the writ, the Court applied now settled law that outbound-forum-selection clauses are enforceable. The Court reasoned that plaintiff failed to submit sufficient evidence to show that Missouri would be “seriously inconvenient for trial.” Ms. *14. The Court also rejected plaintiff’s argument that the non-signatory employee, Mills, could not enforce the outbound forum selection clause. The Court held that “the claims against Mills are ‘related to’ and ‘intertwined with’ the subcontract.” Ms. *18. Finally, the Court rejected plaintiff’s argument that the defendants waived enforcement of the clause when they unsuccessfully removed the case to federal court. Ms. *21.

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