Professional Documents
Culture Documents
Lambert v. Kysar, 1st Cir. (1993)
Lambert v. Kysar, 1st Cir. (1993)
Lambert v. Kysar, 1st Cir. (1993)
No. 91-2244
GEORGE LAMBERT, d/b/a RAINBOW FRUIT,
Plaintiff, Appellant,
v.
SAM KYSAR AND JOAN KYSAR,
d/b/a LEWIS RIVER TREE FARM,
Defendants, Appellees.
_____________________
No. 92-1029
GEORGE LAMBERT, d/b/a RAINBOW FRUIT,
Plaintiff, Appellant,
v.
SAM KYSAR AND JOAN KYSAR,
d/b/a LEWIS RIVER TREE FARM,
Defendants, Appellees.
_____________________
ERRATA SHEET
The opinion of
amended as follows:
Cover sheet:
this Court
issued on January
13, 1993,
is
Page 9, line 7:
Page 14, line 4:
No. 91-2244
No. 91-2244
GEORGE LAMBERT, d/b/a RAINBOW FRUIT,
GEORGE LAMBERT, d/b/a RAINBOW FRUIT,
Plaintiff, Appellant,
Plaintiff, Appellant,
v.
v.
SAM KYSAR AND JOAN KYSAR,
SAM KYSAR AND JOAN KYSAR,
d/b/a LEWIS RIVER TREE FARM,
d/b/a LEWIS RIVER TREE FARM,
Defendants, Appellees.
Defendants, Appellees.
_____________________
_____________________
No. 92-1029
No. 92-1029
White was
Brian A. Gillis
_______________
brief for appellant.
brief for appellant.
James A. G. Hamilton
James A. G. Hamilton
_____________________
brief for appellees.
brief for appellees.
with whom
with whom
____________________
____________________
____________________
____________________
was
was
We affirm.
Appellant
Company
in Boston,
Lambert
and
Massachusetts,
owns
operates
which sells
Christmas tree
the
Fr
Christmas trees
Appellees
farm in Woodland,
Rainbow
Sam and J
Washington.
The front of the order form contained spaces in which the size, gra
quantity, and
The back
provid
On
signed by J
Kysar.
at $11.60 apiece.
At the bottom
All trucks
will be loaded
trees", and
"1650."
of the
Kysar's
changed
the total
the Kysars,
number
ordered from
"2600"
the amo
figures over J
bottom of the
August 21,
1989, in
letter to
Sam and
Jean Kys
last year.
a total
cost of $19,140."
whether
the
Kysars received
The
record on appeal
Lambert's
letter,
does not
indic
cashed his
depo
the s
sent Lambert
the instructions
the requested
on the altered
1,650 trees,
25 and
order form,
in three
loads,
overland truck.
Following delivery of
condition of
the
trees, Lambert
refused
allegedly def
to pay
the
bala
Clark
Coun
June,
1991, the
Kysars
filed
suit in
Lambert filed
countersuit against
chusetts
the present
Superior Court,
In
September, 19
the Kysars in
Mas
of c
The
alleging improper
venue and
failure to
12(b)(3)
state a
claim
November 18,
without hearing,
by
dismiss is allowed.
be filed
margin
1991, the
order:
motion to
"[The
dismiss was
defendants']
gran
motion
of contract[,] suit m
dismissal order de
__
Co., 973 F.2d
___
novo.
____
1027, 1028
Assocs., Inc. v.
_____________
see also
___ ____
Instrumentat
____________
4, 5
____________________
1The Kysars invoked Rule 12(b)(3) as the procedural vehicle for urg
dismissal under the forum selection clause in the order form. We h
held that such dismissals are founded on Rule 12(b)(6), see
___
Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 7 (
_____________
_______________________________
Cir. 1984). No matter, however, since "we are not bound by the la
employed below, and we agree that the case should have been d
missed."
See id. (quoting Carr v. Learner, 547 F.2d 135, 137 (
___ ___
____
_______
Cir. 1976)).
5
12(b)(6)); compare,
_______
Quality Theatres,
________________
discretion"
12(b)(3)).
e.g.,
____
741 F.2d
review of
forum
dismissal un
selection clause
Bu
__
("abuse
dismissal under
II
II
DISCUSSION
DISCUSSION
__________
The
Lambert
action is
order form
filled out
by Joan
Kysar, and
amended
found, that
order form expressed the terms and conditions of the agreement betw
the parties and that Lambert is
the
order form.
the
changes he made
amounted to a material
Kysar offer, paving
forum
Lambert
According to Lambe
term on the
Kysars' order f
selection clause
a counteroffer in
of
the form of
an
express choice-of-law
statutory principles.
provisi
to be det
In parti
general
U.S.C.
1441.2
We agree with
changes
Lambert made
the first
to the
part of Lambert's
quantity term
argument.
amounted to
a reject
____________________
under
defect
1391.
under
Article 2
performance of
terms
of
the Uniform
proposed by
Lambert.
Commercial
We
Code, and
the
Kysa
an acceptance of the
disagree with
the
second part
incorporated
the
August
21 letter.
unamended terms
and
Accordingly,
conditions
the counterof
contained in
clauses.
Si
the venue
clause
enforceable
under
impliedly
both state
mandating a
and federal
Washington forum
common law,
the distr
The Contract
The Contract
____________
The parties disagree on
apply Massachusetts
contract.
or
Washington
law
of-law rules).
th
choi
substantive law of
ciples
of
formation
See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (19
___ ______
_______________________
is the
to the
either jurisdiction.
Code, Article
are "goods"
II, as
adopted in
8
both
of Unif
Massachusetts
Washington.3
Moreover,
remains in
103, Mass.
jurisdictions, wh
Code 62A.2-103, s
the law
of
both Massachusetts
and Washington,
contract in accordance
with its
terms.4
It
set forth
transacti
It provide
____________________
_________________________
_______________________________
536 (1st Cir. 1986) (citing David J. Tierney, Jr., Inc. v. T. Welli
___________________________
________
ton Carpets, Inc., 8 Mass. App. Ct. 237, 239, 392 N.E.2d 1066, 1
__________________
(1979)); Bresky v. Rosenberg, 256 Mass. 66, 75, 152 N.E. 347,
______
_________
(1926); R.J. Menz Lumber Co. v. E.J. McNeeley & Co., 58 Wash. 2
_____________________
____________________
229, 108 P. 621, 624 (1910).
Lambert adverts to no other evide
which would alter the result reached here.
9
space
for
Lambert's signature,
accept[ed] the
It included
to indicate
the signature
bargain,
he had
"read
of Joan Kysar,
that
an officer of
Lewis Ri
in understanding t
Gilb
____
& Bennett Mfg. Co. v. Westinghouse Elec. Corp., 445 F. Supp. 537,
___________________
________________________
(D. Mass. 1977) ("an offer is
to reasonably
back of
believe that an
the form
included a
made").
Although
by the
Le
company and
her signature on
490, 493,
Compare
_______
115 N.E.2d
the front
of the
form reasona
461, 464
(1953) (contract
proffered
seller's
corporate officer,
signature, held to
orders
and blank
_____
space for
_____
office
or request to g
manager was
sales, he
an officer
said or
of the
did nothing
company with
to inform the
power to
authorize
plaintiff that
he
the law
of both
Washington and
Massachusetts, L
rejection of
the Kysars'
offer
to sell,
and
a counteroffer
10
purchase the
v. Columbus Rolling-Mill Co., 119 U.S. 149 (1886) (order for 1200 t
_________________________
of steel rails
rails);
see
___
reply to
the
generally Restatement
_________
(Second) of
Contracts
to accept it but
additional to or
59
is conditional
different from th
Wash.2d
528, 530-31,
379
Cr
__
P.2d
Mass. 461, 463-64, 58 N.E.2d 757 (1945); Kehlor Flour Mills v. Lind
__________________
____
230 Mass.
purchase,
made on
698 (1918).
containing
Lambert's
signature
accept[ed]
as the
Lambert's
counteroffer
Kysars' offer
indicating
on the reverse
that he
had
to sell,
"read
side," incorporated
the unamended terms in the original offer form; that is, all its te
except the quantity of
trees.6
cert. denied,
____ ______
____________________
submission of
F.2d 1219,
1221
(Fed. Cir.
Romala Co
_________
1991) (selle
paragraphs but
of the
boilerplate
See,
___
Gen. L. ch.
106
a mere modification
____________
language in
the original
of
Wash. Rev.
v. Malcom, 233
______
Ga. 784,
2-207 inapplicable
Code 62A
of goods to
787,
where offer
be sold);
Since U.C.C.
2-207 is inapplicable to
facts of this case, we need not consider the apparent conflict betw
our
Co.,
___
interpretation of
2-207 in
Roto-Lith, Ltd. v.
_______________
F.P. Bartlet
____________
Whether
August, by accepting
the
Kysars
his deposit
accepted
Lambert's
counteroffer
stances") (collecting
Mass.
194, 197,
33
cases); cf.
___
N.E. 495,
495
Hobbs v.
_____
(1893) ("conduct
which
impo
counteroffer, see
___
shall
be
("an offer
construed as
U.C.C.
2-206(1)
requested
("an offer to
to buy
goods for
prompt or
inviting acceptance
. . .
mak
manner
current shipm
by the
prompt
____________________
term.
generally White & Summers, at 38-40 (3d ed. 1988) (collecting cas
_________ _______________
and discussing proper interpretation of UCC
2-207).
13
current shipment
of conforming
or non-conforming goods"),
under
reverse
the original
order
form, including
the fo
selection clause.8
B.
B.
long
law.
See
___
(forum
as a matter
Federal courts h
of federal com
10 (19
be enforced unl
is specified
forced").
forum
Washington
selection
Conflict of
478, 563 P.2d
with mandatory
state law
clauses is
language the
on the validity
drawn from
clause will
wh
be
and enforcement
the Restatement
(Second)
generally to
acc
____________________
8Lambert makes no
claim
insufficiently conspicuous.
that
the
forum
selection
clause
14
Restatement
(Second)
of
Conflict of
Laws
80);
see also
___ ____
Wil
7 Intl.
L.
530 (1972)
["Supreme
Court Supports
Enforcemen
__
___________________________________
Thus, as
we discern no
and federal
are to
purposes.10
be
be persuasive in
material discrepancy
law, we need
st
betw
confront neither
treated as
substantive
or procedural
for
E
_
____________________
9Professor Reese served as Reporter for the Restatement (Second).
_____________
_______________
Frazier-Parrott Commodities, Inc., 806 F.2d 848 (8th Cir. 1986);
__________________________________
see Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1
___ _____________________
____________________
(8th Cir. 1986) (applying federal common law) (alternate holdin
This court has yet to take a position on the issue, although distr
courts within the circuit have endorsed the Ninth and Eleventh Circ
approach, see, e.g., Northeast Theatre Corp. v. Edie & Ely Land
___ ____
________________________
_________________
Inc., 563 F. Supp. 833 (D. Mass. 1983), and on one occasion we ten
____
15
709 F.2d
issue beca
that forum
Massachusetts courts
oust the
however, Lamb
jurisdiction
law.
Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8, 111 N
______________________
_____________________
678
(1916);
see
___
also Nute
____ ____
72 Mass.
(1959) (holding fo
clause in
jurisdiction.
an
See
___
York
reach
forum
attempt to
defendant invokes a
deprive
J.S.B. Industries
_________________
the Massachusetts
forum
unenforceable
forum sel
under Massachusetts
selection
law);
see
___
a
_
____________________
in dictum, that
contractual selection
of California
forum would
Mass.
App. Div.
110
(1991) (holding
fo
ability of
however,
toward
SJC has
forum
indicated (in
selection clauses,
("we
see nothing
dictum)
a more
Recent
receptive v
inherently
forum).
v. Hartf
_____
N.E.2d 214,
inappropriate in
fo
adopted
31 A.L.R.
4th 404
tant to the
with the
prevail
(1992), and
Zapata, 407
______
U.S. at 8;
Stew
____
concurrin
see Fireman's Fund Am. Ins. Cos. v. Puerto Rican Forwarding Co.,
___ _____________________________
____________________________
F.2d 1294, 1297 (1st Cir. 1974); Northeast Theatre Corp., 563 F. Su
_______________________
at 834;
(surveying casel
v. Town Contr
__________
contractual fo
nizing them", and suggesting that Nashua River and Nute, see supra
_____________
____ ___ _____
p. 16, no
doctrine).
policy in light of
evolving fede
Mich. 1967), and the vitality of the Nute and Nashua River
____
____________
clouded.
precede
____
view prospectively
decide to do
only and in
so, it well
very flexible
Mass. App.
Ct. at
64,
N.E.2d at 359; but see Scheck v. Burger King Corp., 756 F. Supp. 5
___ ___ ______
__________________
now would
follow
federal law,
as
enunciated by
the
Fi
as we think
contracting
parties'
is not determinat
consistent
with
intention,
would
ap
Washington
clause.11
____________________
n.228
[Forum
_____
Selection
_________
Clauses]
_______
("most
states
determine
Massachusetts law on
its courts
chosen
the enforcement of
forum clauses is
violates
established public
policy
or
Mass. Gen. L.
1-105(1);
unless the
bears no
unsettl
reasona
the parties.
____________________
public policy
viz., the
____
applying foreign
law
Mass. 1992).
justifications
for
dangers of overreaching
in a
chosen
forum.
resisting forum
and the
But
select
difficulties
even these
earl
decisions
in any event by
developments.12
____________________
12The Nute court expressed the view that "the greatest inconvenie
____
[of contractual forum transfers] would be in requiring courts
juries to apply different rules of law in different cases, in
conduct of suits," 72 Mass. (1 Gray) at 184.
It also noted t
"contracts [including forum clauses] might be induced by consid
ations tending to bring the administration of justice into disrepu
such as the greater or less intelligence and impartiality of judg
the greater or less integrity and capacity of juries, [and]
influence, more or less, arising from the personal, social or poli
cal standing of parties in one or another [jurisdiction]." Id.
___
We think that modern caselaw developments, including the Mas
chusetts courts' willingness to entertain motions to dismiss based
the doctrine of forum non conveniens, see Universal Adjustment Co
___ ________________________
v. Midland Bank, Ltd., 281 Mass. 303, 184 N.E. 152 (1933) (Rugg, J
__________________
to permit forum selection clauses in contracts principally involv
nonresidents, Mittenthal v. Moscagni, 183 Mass. 19, 23 (1903), and
__________
________
enforce forum selection clauses which vest jurisdiction in Massac
setts courts, see Graphics Leasing, 1991 Mass. App. Div. at 1
___ _________________
suggest that Commonwealth courts have largely abandoned any pol
concern that the contracting parties' mutual selection of a n
Massachusetts forum will impugn "the dignity or convenience of
[Massachusetts] courts."
Id. Furthermore, the Commonwealth cour
___
more recent acceptance of contracting parties' choice-of-law pro
sions, Morris, 385 Mass. at 674, and of "flexible" choice-of______
rules, Bushkin Assoc. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d
______________
____________
(1985), would appear to erode Nute's earlier endorsement of the v
____
that the application of "different rules of law in different cas
would lead to "great[] inconvenience" for courts or juries.
Nashua River, decided after Nute, noted that the rule agai
____________
____
enforcement of forum selection clauses "related to a matter as
which uniformity of decision and harmony of law among the seve
jurisdictions of this country is desirable."
223 Mass. at 16.
20
think
the
earlier
cases,
decisions,
would
diminishing
their waning
and the
leave a
importance of
increasing role
178(3)
a term,
manifested
added).
the
more recent
and vigor
by legislation or judicial
cited in
th
Massachuse
of federal
by the
account is taken
doctri
same pol
to the choice-
. .") (empha
application of Washington
Washington law
tract
in
Contracts
of
policies
considerations in applying
forum
support
the
obviously bore a
between the
law in the
present circumstances,
reasonable relationship to
parties, we think
the Massachusetts
the c
courts wo
SJC noted in Nashua River that virtually all state and federal cou
____________
at that time refused to enforce forum selection clauses.
Thus,
fundamental policy consideration, which underlay the Nute and Nas
____
___
River decisions, has undergone an about-face in recent years, as fo
_____
selection clauses are now favored by the majority of state courts
_______
by the federal courts. See supra p. 17.
___ _____
These historical changes may well explain why the only ot
rationale for the Nute and Nashua River precedents
the presu
____
____________
invalidity of contractual attempts to "oust appropriate courts
their jurisdiction," Nashua River, 223 Mass. at 19
has been reje
____________
ed by the Supreme Court as "hardly more than a vestigial legal f
tion," predicated on "a provincial attitude regarding the fairness
other tribunals." Zapata, 407 U.S. at 12. As noted, however, the
______
is not bound by the view expressed in Zapata, and its adoption can
______
be presumed. See also Ernest & Norman Hart Bros., 18 Mass. App.
___ ____ ___________________________
64, 463 N.E.2d at 358-59 ("[i]f the Supreme Judicial Court should
decide to [follow Zapata], it may well adopt the modern view prosp
______
tively only and in very flexible form"); see also White-Spun
___ ____ __________
Constr., Inc. v. Cliff, 588 So.2d 865, 866 (Ala. 1991) (reaffirm
______________
_____
invalidity of forum clauses under Alabama law).
21
22
C.
C.
parties'
party
forum selection is
"clearly show[s]
unjust, or
to be
that
enforcement would
the challeng
be unreasonable
overreaching."
at 478-79, 563
P.2d at 1315;
respected unless
cf. Mangham v.
___ _______
as fraud
Wash. A
agr
ment); Bechtel Civil & Minerals, Inc. v. South Columbia Basin Irr
_______________________________
_________________________
Dist., 51 Wash. App. 143, 146, 752
_____
alleged overreaching must
be based
on something more
than the
that one must bargain for each and every written term
Lyall v.
_____
"simply because
plate' section
of a contrac
does not
in itself make
it unfai
419, 423
Mass. 1985).
Lambert does not base the present claim
the
on the ground
The prin
be "seriously
inconvenient" for
Lambert.
Lamb
in which
23
Washington
Court
refusal to
suit to
of Appeals
be brought
in New
upheld
York.
trial judge's
discretion
Exum court
____
noted that
"
the State
to New York
State to
Id.
___
(refusing to tra
___________
fer
chosen forum
all parties
and witnes
test applied in
in detail by
the Supr
80,
Washington courts.
Supports Enforcement,
____________________
supra, at 530
_____
to
are based
the Restatement
state laws
which
on
Supreme Co
__________
(Second));
is similar
to a
parallel
we
sometimes look
U.S.
at 16-17
(emphasis
added).13
We
think
selected forum
in each ca
Exum and,
____
as the rec
shows),
and largely
issue in
the case.
unconnected
See
___
with the
contractual relations
Wash.2d at 46-
____________________
present case
are
the consolidation
was
Washington.
The
Washington, where
Kysars reside
Their interest in
of litigation involving
eminently reasonable.
strong links to
formed.
quite dissimilar.
selectin
far-flung ope
The contract
in litigation
it was accepted
and largely
of
business than
occasion of
parties.
when
he executed
reverse side
forum
the
order form,
or prior agreements
selection clause
was
either
on
between th
printed clearly
on
See D'Antu
___ ______
v.
(D.R.I. 19
(Selya, J.)
as
570 F.
Supp.
708, 714
in similar circumstan
cance); Lyall v. DeYoung, 42 Wash. App. 252, 256, 711 P.2d 356, 358
_____
_______
(1985), rev. den., 105 Wash.2d 1009 (1986) ("[i]n the absence of fr
____ ____
the
signator is deemed
contract and
to have
opportunity to
had ample
17 Wash.
of the instrument");
App. 178,
180-81, 562
P.2d 646
study
(1977) (enforc
presence).
There is no
indication that
Lamber
power":
Lambert is
an experienced
26
merchant who
had purcha
family had s
Affidavit at
agreement was
anything
parties of roughly
stances,
but an
arms-length transaction
betw
bound to the
forum selected
their contract.
D.
D.
properly
dismissed
the
contract-related tort
selection
dispute,
clause, and
precluding
finally, that
contract
________
their
of
the
dispute.
[tort]
Rule
12(b)(6),
directly covered by
material
fact remain
dismissal
under
the fo
in
forum selection
merely
of forum selection
claims" in
the
genu
Rule 12(b)(
escape
by
alleg
evade enforcement
pleading of
district co
parties'
"artful
of
summary
conduct relating to
attempts to
claims under
even if the
rew
agreements thro
context of
contr
118 F.R.D. 2
301 (D.R.I. 1988) (quoting Coastal Steel, 709 F.2d at 197); D'Antuo
_____________
_______
570
forum
F. Supp. at 715.
selection
clause should
not
be given
effect
if it
was
subsequen
27
(1974), to exclude
the sorts of
claims raised by
Lambert.
tion Clauses,
____________
permitted
1982 U. Ill.
L. Rev. at
165 ("a
of
contract should
contracting parties.
be
heard in
the forum
selected
by
Horsfall, 753 F. Supp. 664, 668 (N.D. Ohio 1990) (refusing transfer
________
contract-related
contract,
tort claims
where plaintiff
did not directly
asserted no
breach
concern formation
28
29