Legal Case Summary

We will hear argument next this morning in case 12-9-29 Atlantic Marine Construction Company versus the United States District Court for the Western District of Texas. Mr. Hastings? Mr. Chief Justice and may it please the court. Form selection clauses have been frequently used in contracts of all types. They should be enforced as written and the enforcement of a contractual form selection clause should not just be left to convenience discretionary balancing tests. Rule 12B3 in section 1406 of the United States Code provide appropriate and effective means for enforcing a contractual form selection clause. The language of those provisions is written broadly. Congress used words like wrong and the rule uses the word improper which have plain and natural meanings that are broad and are sufficient to authorize district courts to act to enforce the contractual clause. Is it common in the treatises or in the cases to say that a form selection clause is a venue provision? I thought the venue was something that the Congress determined. Your Honor, the cases do discuss it as a venue provision. One example would be this Court's decision in Stuart addressed a form selection clause in a 1404A transfer analysis which is clearly a venue analysis. In addition to that, with the 2011 amendments to the United States Code, Congress adopted a definition of venue. It's in section 1390. That definition says the place of litigation. I'm paraphrasing it, but it's a pretty straightforward definition. The legislative history of section 201 of that act acknowledges that the definition was intended to make venue determinations easier and to make it clearer that parties could waive or adjust these types of provisions even by contract. The word in the Court said, quote, the parties do not dispute that the district court properly denied the motion to dismiss the case for improper venue under 1406A because responded apparently does business in the northern district of Alabama, which was not the jurisdiction specified in the form selection clause. So what if we were to write an opinion in your favor, what would you suggest we say about that? Your Honor, I believe the correct reading of that language is what the second circuit is said in the trade comment decision and others have written on this, that Stuart, and in the text right by that footnote that's footnote A, I believe, the text right there said, the immediate issue is how we address 1404A. And the way the majority of the circuit courts have read it is the issue in Stuart, this procedural issue that we're here on today, which is simply not presented to the Court. And so the Court could very easily write a decision that acknowledges Stuart's dough controls on a 1404A analysis, but acknowledge that, like the majority of the circuits, that Stuart simply did not have to address this. Well, that's true, but it means that the entire discussion and stored is beside the point. The Court wrote a decision about an issue that really never should arise because the party seeking, as you see it, the party seeking to enforce the form selection clause should proceed under 1406. So Stuart said, well, if you proceed under the wrong provision, this is how it should come out. It makes the whole decision essentially meaningless, doesn't it? Justice Lida, I respectfully disagree. And here's what the meaning of Stuart would be as we understand it. First of all, under the facts of Stuart, the same situation would arise, of course, if a party waived their proper video objection

. That may be a narrow line of cases, but that would still apply in a case where a party doesn't assert the contract at first. But there's another place where Stuart would still apply. When a case is filed in the proper jurisdiction, here, if this lawsuit had been filed in Virginia, there would be a very limited place for exceptional circumstances for a Court to look at a 1404A analysis and determine if public interest required something other than the contract clause. But I don't see how that would work. This is the argument you made in your reply brief that if this, if the case had been filed in the jurisdiction specified in the form selection clause, that Court could nevertheless proceed under 1404A and transfer it back to the Western District of Texas, for example. That's your argument. In exceptional cases, Your Honor. In exceptional cases, but 1404A says that a case can be transferred to a district where it might have been brought. And your argument under 1406 is that they couldn't be brought in the Western District of Texas. That's a place where there's wrong venue. And your Honor, the language of the statute, particularly the language you were just referring to about might have been brought, needs to be read in context of the decisions from this Court. In Van Duesen, this Court held that that language might have been brought was a term of art. The Court has never reached that conclusion with respect to wrong or improper. In Van Duesen, the Court said that might have been brought, language was a term of art referring back to a congressional chosen venue under 1391. And so when this plays out under 1404A, the Court, if the case is in the proper venue and we're onto the second issue of 1404A, the proper reading of the language would allow the Court, truly in exceptional circumstances, to follow the language of the statute and send it to another place where Congress said the case could have been. And again, this is really the second issue in the case. We would emphasize that it's truly exceptional cases where parties have contracted for a form. They've truly resolved the conveniences among the parties among themselves. But the second 1391 says the following. Except as otherwise provided by law, not by contract, by law, this section shall govern, shall govern, the venue of all, all, civil actions brought in district courts of the United States. And then it goes on to specify certain rules for where venue and a case can lie. So if I'm looking at that, I'm thinking, well, those rules apply and they can't be reversed or countermanded or whatever by contract, by party's agreement, except to the extent that the contract can figure centrally into the 1404 analysis. But it's not appropriate in the 1406 analysis because, you know, the statute says what the statute says. Here is venue. And your honor, the language of section 1391, and the first part, I believe it's 1391A, where it has the language of shall govern in federal courts, that's really no different than what this Court said in Stuart of federal law controls venue and federal courts. But the issue that comes up is that venue, venue is very important

. VINUE, even before the current statutes were written, was recognized as being a privilege for the litigants, there to protect the defendants. And even in Nierbo, in the 1939, so almost a decade before some of the current statutes were written, this Court said venue is subject to disposition by the parties. That's only what that tells us is that venue is a highly wavable thing. You can stand on your venue right, but you don't have to. My problem with your interpretation is you are allowing a private agreement to make a venue prescription that Congress enacted improper. Congress said it was proper. It may be that it should not apply in this case because the parties have consented to something else, but it's not a wrong venue. I mean, suppose the question had never come up. There wasn't a claim that this was a wrong venue. The case could have proceeded, and it would have been a place of proper venue, right? If there was no objection raised, yes. Certainly, but it doesn't become. It's a place of proper venue. There may be a reason why another venue is the one that she control in this case. But you can't make a private agreement, you can't say what Congress says is proper, is improper. In response to that, first of all, the venue rights have always been like many federal rights, wavable provisions. And when a contract does not mean it's improper, it means it's wavable. And, Your Honor, the language of the word improper, improper is a broad term, and it has a broad meaning. I'd like to focus on improper for just a second. We have two different words improper and wrong, but improper is used in 12b3. Congress didn't, or in the courts, did not explain what that applies. In practice, that word is used for many different contexts. It's used to enforce form selection clauses. The majority of the circuit courts, in fact, more circuits than have weighed in on our favor, use that language to enforce foreign clauses and were clauses requiring state court forms. It's used in a very broad context in order to force people's contract rights. It's even used in arbitration context. Although the FAA gives parties the right to move under the FAA, many parties raise their complaints under the 12b3 because of the procedural impact of 12b motions, allowing parties not have to answer complicated federal cases and get to proceed to arbitration more quickly

. Giving the language a plain and natural meaning allows the courts to essentially do justice and allow to streamline and have efficient running of cases and to enforce parties' rights and contracts. I'm wondering what you think of this analogy. Any party can waive a personal jurisdiction defense, but would you say that parties by contract can create personal jurisdiction in a court in which it otherwise doesn't exist? Your honor, personal jurisdiction is also essentially a personal right of the defendant. And so if the defendant is willing to consent personal jurisdiction, as often happens, in the office, no. Well, as I said, anybody can waive it, just like anybody can waive almost everything in our, in the way the Federal rules work. But do you think that parties can actually create personal jurisdiction where it doesn't exist by law? Spocusing on personal jurisdiction, not subject matter jurisdiction, yes, because parties can consent and contract to waive the personal jurisdiction objections. And your honor, I believe that has been recognized by many of the Circuit Court. Because consent is a basis for personal jurisdiction. Exactly, Your Honor. Just like, could I ask, what difference would it make to you if I thought the venue here is proper, but I thought that there was no cause of action in this circuit. And that's one of the Amiga's briefs proposed. What difference would that make to you? And Justice Scalia, that would, Professor Sachsbury certainly make an argument. I would begin by acknowledging that that rule would be far better than leaving this to discretionary balancing tests. What difference would it make? It actually would be very favorable to my client because this case would have to be dismissed. We have concerns about that rule. That's why we didn't push that as our argument. The circuits have a great way to play. That's a problem with the argument. Both 1404 and 1406 provide for transfer. This Court has emphasized that it's one Federal system, and within the Federal system, the result shouldn't be dismissed, bring the case all over again, play new violently, instead of that just transfer to the appropriate form. And that's what Professor Sachsbury leaves out. Because the result, as you say, is it's only dismissal, no transfer. And Justice Ginsburg, that is one of the concerns with the rule. But Professor Sachsbury's approach does, first of all, start off with the strong benefit of enforcing contracts. It's just not as effective as 12B3 because when we're dealing with, what's really a painstaking? You know what I mean? What if there's no personal jurisdiction? Okay, and the suit is dismissed because there's no personal jurisdiction. What if Federal Court transferred to another Court that has personal jurisdiction? You're under the current statute, I believe the Court would have the discretion to transfer it based on personal jurisdiction

. Where is it's 1404 and 1406 deal with venue? They don't deal with personal jurisdiction. You're on many courts have actually read 1406 to also allow for addressing personal jurisdiction. There's a circuit splut on that issue. Mr. Hastings, his 12B6 ever been used to your knowledge to deal with a case in which the question is which court the plaintiff should have brought the suit in rather than whether the plaintiff has a viable claim in any court? Yes. It seems to me a bit of a category error. The 12B6 is something, it's an on-the-merit's determination about the viability of your claim. It has raised judicata effect. Whereas this is not. This is just a question of like, did you bring the thing in the right place and you should be allowed to bring it someplace else? In Justice Kagan, the first circuit has been using the 12B6 approach to address whether the case is in the court. No, I know that courts have been. Except for this kind of case, has a court ever used 12B6 to deal with the case of which court? Yes. Outside of the form select clause on that. But did you look anything that's not an on-the-merit's determination that precludes a case in any court? And you're on, I'm not aware of a court doing it outside of the context of the form selection clause issue as the first circuit has. I have one question here. It seems because I start out for reasons I won't going into thinking, well, perhaps it doesn't matter, frankly, you can get to the same result under any of these three approaches. But then one thing, Professor Sacks says does bother me, that if we take your approach, then how do we deal with the problem of removal? I mean, you can only remove the case to a court which is in the district where the person or the plaintiff filed. Now, if there's a form selection clause, the defendant seems to me to be stuck because he can't go to another court. He can't go to the court within the district because the form selection clause and he can't go into another court because of 1441A. So that argues to me that we ought to either take the 1404 approach or we ought to take Professor Sacks's approach unless you have an answer to that. And Justice Breyer, do you have an answer to the removal issue? And the answer starts in section 1390C. And in 1390C, Congress said, where can I find that? Chief Justice Roberts, it's clear. It's 28 US code 1390C. It's not conveniently set forth in any of the papers, right? No, Your Honor, it's not. Did not know that this issue was going to come up. Fair enough

. With respect to 1390C, Congress said, yes, Your Honor, Congress said that these rules, with the exception of the transfer rules, do not apply in removal cases. Congress has answered the question, removal procedures governed by the statutes on removal. And yes, if you're in state court, there's one court you can remove to. This rule and this issue doesn't change that. But if you, if this case had been filed in Texas State Court, for example, and was removed to the Western District, 1390C still says that the transfer rules, it doesn't say 1404A, it says the transfer rules, which would also pick up 1406, could still apply to reallocate the venue for the lawsuit if there was a contract clause or if it was a- I don't know it to explain, I'm sorry, I'll read it more carefully later, but how- it says you have to remove to the court for the district and division where the place of action is pending. So if it's filed in state court in Texas, you have to remove to the Texas Federal Court. Now, how do we get- Now, how- And you can't go to the Texas Federal Court, according to you, because of the contract. Okay. Now, how- now you explain how- how this provision over 1390C gets around that? And Justice Breyer, I respectfully disagree about whether you can get to the Texas Court. You- no. But you can remove to the Texas Court, even though it says you can remove- you can remove to the district court despite the contract. Yes, Justice Breyer, because- Despite the contract. Because of the specific Federal Statutes allowing for removal, they tell specifically where the removal must go. And so we're not suggesting that the Court would have- So what the Court should say in Texas is we have a contract which says you have to go to Virginia, but because of 1390A, we forget about the contract. And we remove it here. No, it's what there's- That's what you're saying, Texas should say. No, Your Honor. What I'm saying is the State District- if the parties were in the State District Court, and remove it to the Federal District Court under the Statutes, under 1390- Well, first of all, that was- that's what the removal statutes require. 1390C would say the transfer rules still apply. The Texas District Court, if we had our contract, should have said, now that you've removed this to Federal Court, we must transfer this case to Virginia because the transfer rules still apply- I would about the- suppose the plaintiff- says, please dismiss this immediately because of 1406, or, you know, because 1406 says you have to dismiss it. And you isn't proper here. And Your Honor, under that circumstance, if it was a contract requiring a State Court form, I think that's what I understand the question to be. The contract says you've got it for Virginia. Okay. They filed it in Texas State Court. You tried to remove it to Texas Federal Court

. And- And you're wrong. They say, I'm very sorry, the contract that he loves says we can't remove it to Texas Federal Court. And Your Honor, the contract would not prevent the removal. But once the case was removed, the contract would control where the case- where the case would be allocated. Can I ask- Yes, please. I'm sorry. I'm sorry. In a form non-convenience motion, I say all the witnesses are- some places. What is the statutory and- or Federal rules of civil procedure basis for form non-convenience? Justice Kennedy, that's an excellent question because the courts, when they usually rule on form non-convenience, do not specify that. There's not a Federal- You just cite Gofoil and that's it? In many times, yes, but a lot of times parties do go ahead in site 12b3. That's often done by parties and litigation. If it's a State Forum or a foreign forum, but- but what do you know for A, is the qualification of the form non-convenience doctrine? For the Federal Court, yes, Your Honor. Could I ask you this about Professor Saks's argument? Doesn't it lead to the- the cons- to the- doesn't it- it show that what wouldn't it mean that Justice Scalia's dissent was correct in Stewart? And the majority was wrong in Stewart because if this is- if this is contractual, suppose Rico, in that case, had moved- had adopted- had taken the approach that Professor Saks has recommended and moved for summary ju- moved to 12b6 or summary judgment, that would be a contract issue, it would be governed by Alabama law, Alabama law says the form selection clause is no good. In Justice Lido, we do think there is some tension between Professor Saks's position and the Stewart decision because if Professor Saks is correct and the first circuit's correct, there really would be no room for a 1404 balancing issue. The issue, I believe, that you're asking about- why is that why wouldn't 1404A continue to apply? Justice Scalia, if- if the contract- if the contract elevated this to an issue on the merits is essentially what 12b6 does, then it becomes an issue not just about venue, it comes an issue about merits and so a venue allocation provision wouldn't change the fact that if the case was- if- if it wrong for them. But it- it depends upon the defendant if he chooses to go the 1404A route, he could go that way, couldn't he? Well, you're on- he wouldn't have to move under 12b6, would he? He wouldn't have to move under 12b6, but- so it wouldn't necessarily overall start. But there's- there's a potential problem here and this is one of the practical issues with Professor Saks issue- approach. If it's an issue on the merits, it doesn't have to be raised right at the beginning of the case. A party could certainly move to transfer and do a lot of other things, but they could raise that issue as a defense on the merits of a lawsuit and have it resolved at trial after the entire proceeding had proceeded in a forum other than where the contract was required. I don't follow that. If it's an affirmative defense, you have to raise it or you lose it. You can't hold back an affirmative defense in the middle of the trial, say, oh, then there's an affirmative defense here. H.C. requires state. In Justice Ginsburg, it certainly would have to be pleaded

. And certainly there's opportunity, you know, leave as freely granted in cases, unless, you know, other circumstances arise. It's possible to plead it down the line, but most importantly, it's- when do you get a ruling on that issue? And that's the problem. What is the problem with this? You admit that if he goes to Virginia, he's- he files a suit in Virginia. All right, then he says, Judge, everything's in Texas. Please remove under 1404A. You know, go- send it down to Texas. And you agree that in an unusual case, you say, because you give a lot of weight to the contract, he could win and go to Texas, right? That's our position. That's your position. Fine. If that's your position, what conceivable difference does it make? If he goes to Texas in the first place, and then you say remove it to Virginia, I mean, it should work out the same way. It should work out that the balancing under 1404, you know, it gives you the- the- the factors should be the same. Shouldn't they? You're on- the way this would work out is if- focusing on the 1404A issue, the real issue gets down to where does the lawsuit need to be filed, what rules are going to be in place, and if a party can just file in Texas, because they want- they- they want to try to move it there for convenience. So they can just file in Texas what they're doing is they're requiring a party who just wants to live. It's a terrible thing. You have to say 1404A, and the other case he has to say 1404A, and I mean, maybe it makes some tremendous practical difference. But what I- if it makes not much difference, I have three routes that seem to me all should work out the same way, and in favor of their route is the absolute language that Justice Kagan pointed out before plus the footnote. Okay. So I'm thinking, hey, this doesn't make- it's important to have a rule. It's important to have one clear approach, but as between the three it shouldn't matter, and they should all reach the same conclusions. So let's go with the language of Stewart. All right. What about- now what's the answer to that? And Justice Breyer, first of all, I would agree with you that under this case, all three routes should have lead to the exact same conclusion. That- that is correct under this case, but that may not be in all cases. Why it matters is that parties should be forced to honor their contracts. And so if a party honors its contract and there's a very high standard, such as the exceptional circumstances standard for receiving a transfer, their- parties who are following their contract, it's unlikely you're going to have much litigation over transfers. Whereas if a party can say, I can try my shot at a home court forum, file and violation of the contract, and then make the other party raise this issue and have to litigate venue, we're going to have a tremendous litigation about venue

. The law travels with the law of the transferring state travels to the transfer state. So they've undone their taking Texas law if you go under 1404 to Virginia. And that would be a problem in many cases, Your Honor. And that would defeat the purpose of the venue selection to start with. That would be your argument. We can care simply by saying Van Ducen, the Barrett does not apply when a party is acting in violation of a contractual provision. Van Ducen against Barrett was intended to give the plaintiff plaintiff's choice of an initial forum. If plaintiff chooses the forum in violation of contract, there's no reason why Van Ducen should apply. And Justice Ginsburg, that points out that if the court were to not just strictly enforce the contract, it raises many new issues that this court has not yet had to address. I'd like to reserve my time. Thank you, counsel. Mr. Allen's word? Mr. Chief Justice, may it please the court. We brought this $160,000 construction case in the Western District of Texas, which is where we performed our work, where the projects located, where all the witnesses reside, and where virtually all of the evidence is located. Even though you agreed not to bring it. Yes. So I'm going back to what Justice Breyer says. Let's suppose you are right about $1404. I think you have some pretty good arguments. $1404, it seems to me, shouldn't affect this case in the sense that you should have, that this was a negotiated contract. You got something for the fact that you accepted inconvenience when you brought a suit. And under $1404, the court is perfectly entitled. The court has to take that into account, that this was a negotiated contract, that you accepted inconvenience, and that you got something for your in-conven-, for your acceptance of inconvenience. The end, you have to live with your contract. No, you're wrong

. We have a contract that we are having to live with it in the sense that we're up here now 15 months after the district court rule that we were supposed to, we should have to, 15 months after the district court denied the motion to transfer. What we did, and those are indeed the terms of our contract. However, we felt that any court following Stewart N-1404 would weigh the interest of justice in the decision whether to grant the transfer or not, and indeed that's exactly what the district court is doing. Interests of the interest of justice that the district court weighed almost all boiled down to the interests of your client, the inconvenience of witnesses. Well, Atlantic Marine, to the extent we're talking about their witnesses, they're not concerned about the inconvenience of having their witnesses go to Norfolk. But your witnesses, the other witnesses are your witnesses. So that's a factor that goes to your convenience, compulsory process to produce witnesses. Same thing. So what were the public interests? What were the interests that were weighed here that are not the interests of J. Croupe? If I might, your honor. First off, the district court didn't give any shrift to our witness. He was concerned with the non-party witnesses who were not a party to the... Well, if not your witnesses, then they're Atlantic Marine's witnesses. So why should that be... Why should the inconvenience of Atlantic Marine's witnesses be a factor that weighs against Atlantic Marine's position that the case should be tried in Norfolk? They were neither Atlantic Marine's witnesses nor our witnesses. They were non-party witnesses and the issue that Judge Hagenbeth and mydresden fit circuit. Just volunteer witnesses. They're just going to walk in the courtroom and say, I'd like to testify. Exactly. Surely they're one size or the other, is that not? Your honor. What kind of proceedings do they have in it? Your honor, our point, is that if it's in Texas, they can get in their pickup and drive to the courthouse and testify. And if this case is moved to Virginia, those witnesses essentially are on the right

. What is going to call these witnesses? You or Atlantic Marine? You do. So they're your witnesses. The fact that they don't work for you is immaterial here. So let's say they're out of the picture. Now what else is left? What other public interests are involved? The law of Texas, which we thank the plies to this case, which is the district court. Virginia can't figure it out. Is that right? I wouldn't suggest that, Your Honor. So why, if why, then, couldn't you go to Virginia? For all these factors, I mean, maybe the jury has to take 42 visits to the bottom of an oil well shaft. I don't know. I mean, there could be something that would weigh in your favor. I don't know the case. So why not go to Virginia and then file a 1404 motion? And it should reach the same result, whether you go to Texas and ask to stay there, or whether you go to Virginia under 1404A, you win this case, let's say. Or whether you go to Virginia, it should get to the same place, shouldn't it? Your Honor, in some ways, it's exactly what we're worried about. The same place at 15 months after the court ruled on the transfer motion. So it's actually more it's because you'd have to go to Virginia. And you would have to file the motion. Maybe you can do it by mail, or you'd have to. We filed a motion. If we filed this lawsuit in Virginia and filed it simultaneously with a 1404 motion, by their lights, the court, as I think one of the judges has pointed out, couldn't transfer it back to Texas anyway because by their lights, venues improper, anywhere except Virginia. No, no, they're not saying they said that you could make the 1404 motion in Virginia. And they think it would only be granted in an exceptional case, but that's their opinion in that. And so it should come to the same conclusion. They aren't borrowing you from that on their view, but my thought is that if all these come to the same result in the end, and you just need one rule, we have something pointing on their side, your side, which is the Stuart footnote and that language of the, you know, the absolute language of the venue statutes. And you have something pointing in their side, which is, if we count by numbers, five circuits are in their favor, and only three in yours. All right. Help me. If there hadn't been a forum selection clause in the contract, and we'd filed sued in Texas, it's inconceivable that they could have successfully moved the case to Virginia. The only thing going in favor of this case going to Virginia, is that forum selection clause? Well, that's kind of a big thing, isn't it? I mean, that's what the, it's a significant fact. It's sensitive to the physical information. And the problem, the difference, all things don't lead to the same place. 1404 says to the district court, look at a Hodge podge of things, including the interest of justice, and figure it out, and, you know, maybe they'll give the contract some weight, or maybe they won't, and if they do, it's not clear how you weigh the contract against the interest of justice. It gives a broad discretion. It says they may transfer. 1406 is an entirely different animal. It says you shall dismiss or transfer. It's sort of a, you know, you can have the safety valve to transfer. And I don't know why you so cavalierly dismiss say, oh, it's in the contract, of course, but we've got more witnesses. It is in the, your Honor, it is in the contract, because it's in the contract, we didn't get the difference that otherwise plaintiff would get on selection of venue. Well, that could come as a surprise. No, sorry. And we haven't, we haven't attacked the clause on Braiman standards. We haven't claimed it was induced by fraud, or there was overreaching. We accept that. The question that we've got is whether the Federal Judiciary has to accept that contract clause as guiding their decision to help work. Well, it doesn't this way. It doesn't this way. Virginia 4, as Justice Ginsburg said, it's a codification of forum non-convenience law, which is a balancing of private and public interest. It seems to me what Justice Salito said was absolutely right. You have given up the ability to claim private interests here by virtue of your choice to sign that contract. The only thing that could weigh in the balance against that is if there's some, something that has nothing to do with your convenience, but is instead a feature of, something about why it's important to the judicial system, to the public interest about keeping a trial in one place. And as Justice Salito suggested, you have not been able to point to anything, nor would there be anything to point to, in most cases, involving forum selection clauses. In most cases, there wouldn't be

. If there hadn't been a forum selection clause in the contract, and we'd filed sued in Texas, it's inconceivable that they could have successfully moved the case to Virginia. The only thing going in favor of this case going to Virginia, is that forum selection clause? Well, that's kind of a big thing, isn't it? I mean, that's what the, it's a significant fact. It's sensitive to the physical information. And the problem, the difference, all things don't lead to the same place. 1404 says to the district court, look at a Hodge podge of things, including the interest of justice, and figure it out, and, you know, maybe they'll give the contract some weight, or maybe they won't, and if they do, it's not clear how you weigh the contract against the interest of justice. It gives a broad discretion. It says they may transfer. 1406 is an entirely different animal. It says you shall dismiss or transfer. It's sort of a, you know, you can have the safety valve to transfer. And I don't know why you so cavalierly dismiss say, oh, it's in the contract, of course, but we've got more witnesses. It is in the, your Honor, it is in the contract, because it's in the contract, we didn't get the difference that otherwise plaintiff would get on selection of venue. Well, that could come as a surprise. No, sorry. And we haven't, we haven't attacked the clause on Braiman standards. We haven't claimed it was induced by fraud, or there was overreaching. We accept that. The question that we've got is whether the Federal Judiciary has to accept that contract clause as guiding their decision to help work. Well, it doesn't this way. It doesn't this way. Virginia 4, as Justice Ginsburg said, it's a codification of forum non-convenience law, which is a balancing of private and public interest. It seems to me what Justice Salito said was absolutely right. You have given up the ability to claim private interests here by virtue of your choice to sign that contract. The only thing that could weigh in the balance against that is if there's some, something that has nothing to do with your convenience, but is instead a feature of, something about why it's important to the judicial system, to the public interest about keeping a trial in one place. And as Justice Salito suggested, you have not been able to point to anything, nor would there be anything to point to, in most cases, involving forum selection clauses. In most cases, there wouldn't be. And that's why, in most cases, the clauses are enforced, and that's why I don't think you've seen one of these for 25 years. The reason that we've got, we think our case is somewhat unique, is that it involves a construction project in the district in which we filed suit. All of the witnesses are there. Virtually all of the physical evidence is there. It's subject, if we stay in Texas, to Texas law. And for those reasons, if the case is going to get sent to Virginia, the systemic integrity of the system, I think. Well, but the reason that it causes the enforceability of these clauses is critically important to a lot of modern commerce. If you, I don't know what the details are here, but a lot of times you're a company, and you're doing business now, all across the country. And you say, I don't want to do business all across the country. If I'm going to get dragged into different courts, who knows where, with different traditions, with the theories are different. I want to do business around the country, so long as if I'm going to be sued, it's right here. So I'm only going to do business with people who are willing to say, if I have a problem, I'll sue you right here. That's critically important to modern commerce. And the idea, well, we're going to let a court say, well, there are a few more witnesses here, you know, it's convenient to them, and all that, that seems to be throwing a significant wrench into the process. Q Your Honor, I don't view it as a wrench, as opposed to an opportunity or mandate from Congress to the district of the Federal Courts to exercise some discretion in deciding whether to enforce these clauses or not. Still, your adversary is not taking that discretion away. It's saying, your adversary, I understand, is conceding that Virginia has the ability to apply 1404 in its judgment, but you should honor the contract. I have one fundamental problem, which is slightly different. Under Brennan and Carnival, if the forum selected was arbitration or a state court, then the court has no 1404 power. It must transfer to those venues. If we accept 1404 as applying, then we're disfavoring commercial parties from picking federal courts because they're going to have to accept that a non-selected venue will have the power to make the decision whether to transfer or not. That seems to me to invite, and there may be people who think that's a good thing, get cases out of the Federal Court, even if they're international commercial cases, but isn't that what you're inviting? I think your Honor, I'd say that's a possibility. I'd say the, on the other hand, that the arbitration example that you brought up, that's governed by a separate statute anyway, so that the Federal Arbitration Act is going to govern whether the arbitration clause ought to be enforced. The clause here allowed suit in state or Federal Court. Suppose the clause, the forum selection clause had just said, all disputes shall be litigated in the circuit court for the City of Norfolk. Doesn't say anything about the Eastern District of Virginia

. And that's why, in most cases, the clauses are enforced, and that's why I don't think you've seen one of these for 25 years. The reason that we've got, we think our case is somewhat unique, is that it involves a construction project in the district in which we filed suit. All of the witnesses are there. Virtually all of the physical evidence is there. It's subject, if we stay in Texas, to Texas law. And for those reasons, if the case is going to get sent to Virginia, the systemic integrity of the system, I think. Well, but the reason that it causes the enforceability of these clauses is critically important to a lot of modern commerce. If you, I don't know what the details are here, but a lot of times you're a company, and you're doing business now, all across the country. And you say, I don't want to do business all across the country. If I'm going to get dragged into different courts, who knows where, with different traditions, with the theories are different. I want to do business around the country, so long as if I'm going to be sued, it's right here. So I'm only going to do business with people who are willing to say, if I have a problem, I'll sue you right here. That's critically important to modern commerce. And the idea, well, we're going to let a court say, well, there are a few more witnesses here, you know, it's convenient to them, and all that, that seems to be throwing a significant wrench into the process. Q Your Honor, I don't view it as a wrench, as opposed to an opportunity or mandate from Congress to the district of the Federal Courts to exercise some discretion in deciding whether to enforce these clauses or not. Still, your adversary is not taking that discretion away. It's saying, your adversary, I understand, is conceding that Virginia has the ability to apply 1404 in its judgment, but you should honor the contract. I have one fundamental problem, which is slightly different. Under Brennan and Carnival, if the forum selected was arbitration or a state court, then the court has no 1404 power. It must transfer to those venues. If we accept 1404 as applying, then we're disfavoring commercial parties from picking federal courts because they're going to have to accept that a non-selected venue will have the power to make the decision whether to transfer or not. That seems to me to invite, and there may be people who think that's a good thing, get cases out of the Federal Court, even if they're international commercial cases, but isn't that what you're inviting? I think your Honor, I'd say that's a possibility. I'd say the, on the other hand, that the arbitration example that you brought up, that's governed by a separate statute anyway, so that the Federal Arbitration Act is going to govern whether the arbitration clause ought to be enforced. The clause here allowed suit in state or Federal Court. Suppose the clause, the forum selection clause had just said, all disputes shall be litigated in the circuit court for the City of Norfolk. Doesn't say anything about the Eastern District of Virginia. What would be the result then? The court had to dismiss our case. And equally. He couldn't transfer it to, he can't force that into a Virginia circuit. And the same thing, if the choice was of an arbitral forum, then you recognize, in those two cases, the result would have to be dismissal. Yes, Your Honor. What would be the authority for dismissing the case if it had specified a state court? I think it would be the same one as in Brahmins, which didn't in the Brahmins, which didn't mention for, or. No, Brahmins is an admiralty case. Why wouldn't it just be a forum non-convenience? It would be, and I forgot which Justice raised the question about the 1404A. Is it codification of forum non-convenience in the absence of that? The case would just be dismissed. Yeah, I mean, 1404 is just if it's a, if it says, go to, if the contract clause specifies a Federal court, it's a 1404A. If it specifies a state court, it's a forum non-convenience motion. With the same result, it would have said the same result, dismissal would be dismissed. That argument may be slightly against you. So, the, the, if, in fact, you specify a state court, if, in fact, you specify a foreign court, if, in fact, you specify arbitration. You agree in those instances you're going to use forum non-convenience or going to use 1406. But you're saying where you specify a court in a different state, namely a Federal court in a different state, there you use 1404. Well, it's not for 206. It's just forum non-convenience, which is. Yeah, yeah, it was, forum non-convenience. Oh, you use forum non-convenience in all three. You don't use, I mean, they specify a state court. Because the 1406 wouldn't apply because they say venue is a state court. You use forum non-convenience in all those. Okay, you use forum non-convenience in all those. But you use 1404 if they specify another Federal court. That's what, that's what, that's

. What would be the result then? The court had to dismiss our case. And equally. He couldn't transfer it to, he can't force that into a Virginia circuit. And the same thing, if the choice was of an arbitral forum, then you recognize, in those two cases, the result would have to be dismissal. Yes, Your Honor. What would be the authority for dismissing the case if it had specified a state court? I think it would be the same one as in Brahmins, which didn't in the Brahmins, which didn't mention for, or. No, Brahmins is an admiralty case. Why wouldn't it just be a forum non-convenience? It would be, and I forgot which Justice raised the question about the 1404A. Is it codification of forum non-convenience in the absence of that? The case would just be dismissed. Yeah, I mean, 1404 is just if it's a, if it says, go to, if the contract clause specifies a Federal court, it's a 1404A. If it specifies a state court, it's a forum non-convenience motion. With the same result, it would have said the same result, dismissal would be dismissed. That argument may be slightly against you. So, the, the, if, in fact, you specify a state court, if, in fact, you specify a foreign court, if, in fact, you specify arbitration. You agree in those instances you're going to use forum non-convenience or going to use 1406. But you're saying where you specify a court in a different state, namely a Federal court in a different state, there you use 1404. Well, it's not for 206. It's just forum non-convenience, which is. Yeah, yeah, it was, forum non-convenience. Oh, you use forum non-convenience in all three. You don't use, I mean, they specify a state court. Because the 1406 wouldn't apply because they say venue is a state court. You use forum non-convenience in all those. Okay, you use forum non-convenience in all those. But you use 1404 if they specify another Federal court. That's what, that's what, that's. You use 12b3. No. 1404. In those other cases, you, you, you use 12b3. Yes, yes. But my point is you're using something else, so they would say, well, let's have it the same, you know, okay. Just, I see the answer. I don't know if you're going to answer, forget it. No, there's a, that raises a larger question that if I could address for just a second. And that's the systemic integrity of the system. If you're going to transfer a case to, within the system, to another Federal court that's going to have to hear the case, one like this one where he's likely going to have to hear it without witnesses, or certainly without live witnesses, and to render a judgment based on facts that were developed 1,500 miles away on a project that's that far away, that does implicate, I think, the integrity of the system, and that ultimately a Federal judge is the one that's going to have to write, then take nothing judgment if I can't scare up the witnesses to be in Virginia. Don't put me in the group that thinks you can use foreign non-convenience when you have a foreign selection clause for a state court and suit is brought, attempted to be brought in a Federal court. I mean, if it's in the Federal court that is the most convenient court, I mean, let's say it's in a different state where all the witnesses are. I think it's very strange to say that because there is a contract provision requiring it to be brought in a state court, this court is an inconvenient court. All right. Do you know that the doctrine of form non-convenience has ever been used that way? No, sir. No, you're on. No, I don't. In fact, I haven't thought through the question of if it just said it's to be. No, the answer, this is another. I keep thinking they should all come to the same conclusion. But then, what about this point, Justice Sotomayor raised, suppose you sue in Texas? You know, you get there. But the contract, let's say, was a different contract from yours, but it just was made in Nevada. Everything about this concerns Nevada, or are they really going to use Texas law to interpret the contract rather than Nevada? I would have thought that the choice of law question is a different question, and where you sue, should be irrelevant to the choice of law question, except in so far, I don't know, maybe you looked at this. The Constitution said that the law moves with the, with the, only because the plaintiff, the plaintiff's choice of form was to be respected, but if the plaintiff chooses the form and violation of contract, the whole rationale in that case falls, it was to honor the plaintiff's choice of form. Well, the fact that the plaintiff doesn't have a choice

. You use 12b3. No. 1404. In those other cases, you, you, you use 12b3. Yes, yes. But my point is you're using something else, so they would say, well, let's have it the same, you know, okay. Just, I see the answer. I don't know if you're going to answer, forget it. No, there's a, that raises a larger question that if I could address for just a second. And that's the systemic integrity of the system. If you're going to transfer a case to, within the system, to another Federal court that's going to have to hear the case, one like this one where he's likely going to have to hear it without witnesses, or certainly without live witnesses, and to render a judgment based on facts that were developed 1,500 miles away on a project that's that far away, that does implicate, I think, the integrity of the system, and that ultimately a Federal judge is the one that's going to have to write, then take nothing judgment if I can't scare up the witnesses to be in Virginia. Don't put me in the group that thinks you can use foreign non-convenience when you have a foreign selection clause for a state court and suit is brought, attempted to be brought in a Federal court. I mean, if it's in the Federal court that is the most convenient court, I mean, let's say it's in a different state where all the witnesses are. I think it's very strange to say that because there is a contract provision requiring it to be brought in a state court, this court is an inconvenient court. All right. Do you know that the doctrine of form non-convenience has ever been used that way? No, sir. No, you're on. No, I don't. In fact, I haven't thought through the question of if it just said it's to be. No, the answer, this is another. I keep thinking they should all come to the same conclusion. But then, what about this point, Justice Sotomayor raised, suppose you sue in Texas? You know, you get there. But the contract, let's say, was a different contract from yours, but it just was made in Nevada. Everything about this concerns Nevada, or are they really going to use Texas law to interpret the contract rather than Nevada? I would have thought that the choice of law question is a different question, and where you sue, should be irrelevant to the choice of law question, except in so far, I don't know, maybe you looked at this. The Constitution said that the law moves with the, with the, only because the plaintiff, the plaintiff's choice of form was to be respected, but if the plaintiff chooses the form and violation of contract, the whole rationale in that case falls, it was to honor the plaintiff's choice of form. Well, the fact that the plaintiff doesn't have a choice. Your Honor, the contract, if Judge Higginbeth pointed out, doesn't have a selection of law, of law, laws. They put, it's got every other dispute resolution clause that could be in there to make it difficult for us to get this case to a court, but it doesn't have a, it doesn't have a choice of law, provision in it. But the only reason that that using came out the way it did was, I think it was just as Black said, the plaintiff's choice of form merits respect. It doesn't merit respect when the plaintiff has agreed that the suit will go forward someplace else. I don't recall. Sorry. The issue has not been decided by him. If, if 1404 is the correct procedural route, why shouldn't the rule be something like this? Where there is a form selection clause, the burden is on the burden of trying to establish venue in some other jurisdiction, is on the party opposing the form selection clause, not the party that's invoking the form selection clause. And the only factors that can be considered against the form selection clause to resolve in an exceptional case where that wouldn't be honored are factors that have nothing to do with the convenience of the party that doesn't want to try it in this selected form, or with the likelihood of success of the party that doesn't want it tried in this, in the jurisdiction specified in the form selection clause. So in your case, if there had been a hurricane that wiped out the courts of the Eastern District of Virginia for some period of time, so no cases could be tried, or there was an incredible backload of cases there that would prevent the case from being tried, maybe that would be, and those would be something that might amount to an exceptional circumstance. But everything else is off the board. What's wrong with that? First off, on the validity of the clause, we acknowledge we'd have the burden. We were trying to avoid this clause on whatever grounds, on any bramen grounds, or we'd got cheated into it or anything like that. We'd have the burden on that. We didn't try to carry that burden. We're not attacking the clause. They have the burden on the main gate and on the transfer itself. But why should that be? It's a form selection clause. I don't think that it's even a matter where there's so much of burden as it is on weight, and you all have already spoken on that, where you said that it's that clause is to get significant weight. It ought to be central to the analysis, but it's not dispositive. Our contention was that the clause was not dispositive, but that every factor that possibly could go and militate against, transfer in this case to Virginia, existed. And that's why the court, given appropriate deference to the clause, to that clause, hearing what the evidence was, and deciding. As you're a bit of Virginia court to make that decision instead of your friendly down home Texas court, and that's why the form selection clause was put in there. It doesn't seem to me such as stretch as you think it is to say that the venue is improper when you have agreed that venue would not lie in this court. We can't confer, Vend, we can weigh venue, but we can't make improv. So the question is, is it improper when it's been waived? Is it improper for a court to acknowledge venue when the party has said I cannot be, I cannot bring my suit in this court

. Your Honor, the contract, if Judge Higginbeth pointed out, doesn't have a selection of law, of law, laws. They put, it's got every other dispute resolution clause that could be in there to make it difficult for us to get this case to a court, but it doesn't have a, it doesn't have a choice of law, provision in it. But the only reason that that using came out the way it did was, I think it was just as Black said, the plaintiff's choice of form merits respect. It doesn't merit respect when the plaintiff has agreed that the suit will go forward someplace else. I don't recall. Sorry. The issue has not been decided by him. If, if 1404 is the correct procedural route, why shouldn't the rule be something like this? Where there is a form selection clause, the burden is on the burden of trying to establish venue in some other jurisdiction, is on the party opposing the form selection clause, not the party that's invoking the form selection clause. And the only factors that can be considered against the form selection clause to resolve in an exceptional case where that wouldn't be honored are factors that have nothing to do with the convenience of the party that doesn't want to try it in this selected form, or with the likelihood of success of the party that doesn't want it tried in this, in the jurisdiction specified in the form selection clause. So in your case, if there had been a hurricane that wiped out the courts of the Eastern District of Virginia for some period of time, so no cases could be tried, or there was an incredible backload of cases there that would prevent the case from being tried, maybe that would be, and those would be something that might amount to an exceptional circumstance. But everything else is off the board. What's wrong with that? First off, on the validity of the clause, we acknowledge we'd have the burden. We were trying to avoid this clause on whatever grounds, on any bramen grounds, or we'd got cheated into it or anything like that. We'd have the burden on that. We didn't try to carry that burden. We're not attacking the clause. They have the burden on the main gate and on the transfer itself. But why should that be? It's a form selection clause. I don't think that it's even a matter where there's so much of burden as it is on weight, and you all have already spoken on that, where you said that it's that clause is to get significant weight. It ought to be central to the analysis, but it's not dispositive. Our contention was that the clause was not dispositive, but that every factor that possibly could go and militate against, transfer in this case to Virginia, existed. And that's why the court, given appropriate deference to the clause, to that clause, hearing what the evidence was, and deciding. As you're a bit of Virginia court to make that decision instead of your friendly down home Texas court, and that's why the form selection clause was put in there. It doesn't seem to me such as stretch as you think it is to say that the venue is improper when you have agreed that venue would not lie in this court. We can't confer, Vend, we can weigh venue, but we can't make improv. So the question is, is it improper when it's been waived? Is it improper for a court to acknowledge venue when the party has said I cannot be, I cannot bring my suit in this court. I don't think it's a terrible stretch to call that improper venue. However, theoretical venue is decided by statute. Of course it is, but people may waive it, and when people have waived it, I don't know that there's a great interest in saying that nonetheless the venue remains proper. It seems to me you've given it away, and it ought to be the court where the parties agreed that suit would lie, that would decide these change of venue questions. The provision need not be absolutely dispositive, but to the extent it isn't, that is a call that ought to be made by the jurisdiction that the parties agreed to. The whole litigation ought to begin there. They shouldn't have to litigate this change of venue provision in a court where the parties agreed they would not appear. It seems to me terribly unfair. There's a couple of factors on that, Your Honor. First off, the rule that I think my colleagues here are calling for effectively emasculates 1404 and takes the federal judiciary out of it. The question, and I follow your question about the propriety of the venue. Why is that? Why is that? Why can't the court where you agreed to be sued apply 1404? Another reason for that is that our contract has a one-way arbitration clause in it, which the petitioner claims not to have waived. If this case is decided, it goes to Virginia. If we filed a case in Virginia, and they immediately demanded arbitration, the case would be arbitrated, but under the FAA it would be sent to an Arbitrator, presumably in Virginia, and under the FAA we don't even necessarily have the right to take depositions to move the evidence before the court, even in deposition court. We'd rather have the case decided in Texas on $160,000 case, and I know that you're saying that by filing in Texas you're not going to arbitration. No, if we go to arbitration, we go to arbitration in Texas. We don't have any complaint about that. What we don't want to do is to go to arbitration in Virginia, which it is not having, and in this contract, for everything it's got in it, it doesn't have a clause that says that arbitration will be conducted. There's not a choice of forum clause for the arbitration. There is for litigation, but not for arbitration. So what's more favorable about Texas other than your convenience? What's more favorable about arbitration in Texas other than your convenience? That's the only thing. It's convenient for you to be in Texas. It's convenient for us. The arbitrator can drive out to the project and draw his own conclusions about how the thing was built. He can talk to the witnesses who are within his subpoena power, or it's a subpoena power of our district court in Texas, to show up, yes, sir. You can

. I don't think it's a terrible stretch to call that improper venue. However, theoretical venue is decided by statute. Of course it is, but people may waive it, and when people have waived it, I don't know that there's a great interest in saying that nonetheless the venue remains proper. It seems to me you've given it away, and it ought to be the court where the parties agreed that suit would lie, that would decide these change of venue questions. The provision need not be absolutely dispositive, but to the extent it isn't, that is a call that ought to be made by the jurisdiction that the parties agreed to. The whole litigation ought to begin there. They shouldn't have to litigate this change of venue provision in a court where the parties agreed they would not appear. It seems to me terribly unfair. There's a couple of factors on that, Your Honor. First off, the rule that I think my colleagues here are calling for effectively emasculates 1404 and takes the federal judiciary out of it. The question, and I follow your question about the propriety of the venue. Why is that? Why is that? Why can't the court where you agreed to be sued apply 1404? Another reason for that is that our contract has a one-way arbitration clause in it, which the petitioner claims not to have waived. If this case is decided, it goes to Virginia. If we filed a case in Virginia, and they immediately demanded arbitration, the case would be arbitrated, but under the FAA it would be sent to an Arbitrator, presumably in Virginia, and under the FAA we don't even necessarily have the right to take depositions to move the evidence before the court, even in deposition court. We'd rather have the case decided in Texas on $160,000 case, and I know that you're saying that by filing in Texas you're not going to arbitration. No, if we go to arbitration, we go to arbitration in Texas. We don't have any complaint about that. What we don't want to do is to go to arbitration in Virginia, which it is not having, and in this contract, for everything it's got in it, it doesn't have a clause that says that arbitration will be conducted. There's not a choice of forum clause for the arbitration. There is for litigation, but not for arbitration. So what's more favorable about Texas other than your convenience? What's more favorable about arbitration in Texas other than your convenience? That's the only thing. It's convenient for you to be in Texas. It's convenient for us. The arbitrator can drive out to the project and draw his own conclusions about how the thing was built. He can talk to the witnesses who are within his subpoena power, or it's a subpoena power of our district court in Texas, to show up, yes, sir. You can. All right. I just like if you want to give you a chance to paint, but I think Professor Sachs says, look, there is a way which you can both follow the statutes literally and say, well, venue is here, and also get the place to the right forum, respecting the contract, just say it is an affirmative defense with Justice Ginsburg says the first circuits follow this approach. You put it in the complaint, the answer, and once it's in the answer, the judge can put it front and center. Indeed, in case he forgets to do that, the defendant will remind him. And so you got to get to the right court, and let's decide this affirmative defense thing first, and now we're back in the same place. What do you think of that? I think that that's going to unnecessarily complicate this. It gets into raises some difficult- to-eerie questions about which difficult- to-eerie questions, which the court, I think, successfully avoided with its decision in store. I don't think that 12-B motions are particularly appropriate places to decide these contract issues, and it eliminates the 14-04 gatekeeper role that the district court otherwise could be providing, and was providing. Professor Sachs says that in the case of any disputed facts on a 12-B6, you would have to have a trial. Do you agree with that? Yes, Your Honor. And I think that he underestimates the ability for resolute counsel to raise disputed facts that would otherwise prevent the summary judgment practice that he suggested that- Well, what facts are- What facts are- What facts are- in the normal case, what facts are going to be pertinent? I mean, you've got the contract there. I mean, I suppose you can always say we're entered under duress and all that, but that wouldn't seem to me to be typical in the normal commercial case in which these provisions are critically important. What facts are going to be there? I think there might be a question of materiality. There might be a question of- What type of materiality? How material that clause was to the party's contract or whether you were going to try to- to have separability and to focus exclusively on that clause? Well, the venue- I mean, if they go to the trouble of putting a venue selection form selection provision in, in every way science seems pretty material. It might or might not, depending on whichever state law applied to- and whatever, because that would be under state law to decide on the materiality. What the effect of the prior breach is? This case has been cast in Manichee in terms about our breach of the contract by failing to file sued in Virginia. The only written- the only handwritten clause in this entire contract, which is in the appendix, I think, at page 16, is the one that says what the price is. What brings us here to the Federal system is not for a declaratory release or to make new law on venue. It's to collect $160,000. That clause, I think, ultimately would be weighed- might be weighed depending on the court. If it was- if it- if the case was being decided on purely- Today, the only people collecting that $160,000 are going to be the lawyers. I- I wish. You took a contingency case of a contract? And the other thing is that as Professor Sacks points out, and Justice Haines did at the 5th Circuit, well, they can file suit for us for breach of contract and the expense that we've put them to. Yes, I think they probably could. We at least get $160,000 head start on that. And they can bring that as an offset to our claimants they want to

. All right. I just like if you want to give you a chance to paint, but I think Professor Sachs says, look, there is a way which you can both follow the statutes literally and say, well, venue is here, and also get the place to the right forum, respecting the contract, just say it is an affirmative defense with Justice Ginsburg says the first circuits follow this approach. You put it in the complaint, the answer, and once it's in the answer, the judge can put it front and center. Indeed, in case he forgets to do that, the defendant will remind him. And so you got to get to the right court, and let's decide this affirmative defense thing first, and now we're back in the same place. What do you think of that? I think that that's going to unnecessarily complicate this. It gets into raises some difficult- to-eerie questions about which difficult- to-eerie questions, which the court, I think, successfully avoided with its decision in store. I don't think that 12-B motions are particularly appropriate places to decide these contract issues, and it eliminates the 14-04 gatekeeper role that the district court otherwise could be providing, and was providing. Professor Sachs says that in the case of any disputed facts on a 12-B6, you would have to have a trial. Do you agree with that? Yes, Your Honor. And I think that he underestimates the ability for resolute counsel to raise disputed facts that would otherwise prevent the summary judgment practice that he suggested that- Well, what facts are- What facts are- What facts are- in the normal case, what facts are going to be pertinent? I mean, you've got the contract there. I mean, I suppose you can always say we're entered under duress and all that, but that wouldn't seem to me to be typical in the normal commercial case in which these provisions are critically important. What facts are going to be there? I think there might be a question of materiality. There might be a question of- What type of materiality? How material that clause was to the party's contract or whether you were going to try to- to have separability and to focus exclusively on that clause? Well, the venue- I mean, if they go to the trouble of putting a venue selection form selection provision in, in every way science seems pretty material. It might or might not, depending on whichever state law applied to- and whatever, because that would be under state law to decide on the materiality. What the effect of the prior breach is? This case has been cast in Manichee in terms about our breach of the contract by failing to file sued in Virginia. The only written- the only handwritten clause in this entire contract, which is in the appendix, I think, at page 16, is the one that says what the price is. What brings us here to the Federal system is not for a declaratory release or to make new law on venue. It's to collect $160,000. That clause, I think, ultimately would be weighed- might be weighed depending on the court. If it was- if it- if the case was being decided on purely- Today, the only people collecting that $160,000 are going to be the lawyers. I- I wish. You took a contingency case of a contract? And the other thing is that as Professor Sacks points out, and Justice Haines did at the 5th Circuit, well, they can file suit for us for breach of contract and the expense that we've put them to. Yes, I think they probably could. We at least get $160,000 head start on that. And they can bring that as an offset to our claimants they want to. We disagree with the question of whether it costs them anymore to litigate in Texas and it would in Virginia anyway. They're going to have to hire a law firm. If we litigate in Virginia, they're going to have to send a lot of- about your lawyers back to Texas to defend the depositions that we'd have to be taken there. I don't know that this case costs anymore to be litigated in Texas where the witnesses are available and where they might not have to be deposed, then in Virginia where they have to move where they have to ship them across the country. There's no further questions. Thank you, Your Honor. Thank you, Council. Mr. Hastings, you have four minutes left. Thank you, Mr. Chief Justice. I have just a few brief comments. First, the party's bargained for the right result and they bargained and reached a contract that should settle the issue of convenienceism where this case should be litigated. Stuart has an important observation that I think needs to be emphasized. Even under a 14-of-4A analysis, the majority in Stuart said the Bremen is still instructive. And if it's instructive on anything, on any rules enforcing a contract, it should be instructive at this level. The burden should be on the party trying to get out from their contract. The third circuit misallocated the burden. The burden should also be a high one. It really should require exceptional circumstances or perhaps even more. And it should not be a case where a party can avoid its contract based upon inconveniences that were foreseeable at the time of contracting, for example, the fact that J. Crew hired Texans to work on its project. It knew what the project was about and what it would need to do. And it should not be able to rely upon hiring Texans to change the deal that negotiated with my client. There needs to be a clear rule that allows the courts to hopefully answer the questions about contracts and venue so we all can stop litigating these issues and know the right answers and avoid inundating the courts with motions to transfer for parties wanting to renegotiate contracts. Since the third circuit and the sixth circuit and now the fifth circuit have adopted the minority position, there's been a proliferation of litigation when the contract already answered the question

. We disagree with the question of whether it costs them anymore to litigate in Texas and it would in Virginia anyway. They're going to have to hire a law firm. If we litigate in Virginia, they're going to have to send a lot of- about your lawyers back to Texas to defend the depositions that we'd have to be taken there. I don't know that this case costs anymore to be litigated in Texas where the witnesses are available and where they might not have to be deposed, then in Virginia where they have to move where they have to ship them across the country. There's no further questions. Thank you, Your Honor. Thank you, Council. Mr. Hastings, you have four minutes left. Thank you, Mr. Chief Justice. I have just a few brief comments. First, the party's bargained for the right result and they bargained and reached a contract that should settle the issue of convenienceism where this case should be litigated. Stuart has an important observation that I think needs to be emphasized. Even under a 14-of-4A analysis, the majority in Stuart said the Bremen is still instructive. And if it's instructive on anything, on any rules enforcing a contract, it should be instructive at this level. The burden should be on the party trying to get out from their contract. The third circuit misallocated the burden. The burden should also be a high one. It really should require exceptional circumstances or perhaps even more. And it should not be a case where a party can avoid its contract based upon inconveniences that were foreseeable at the time of contracting, for example, the fact that J. Crew hired Texans to work on its project. It knew what the project was about and what it would need to do. And it should not be able to rely upon hiring Texans to change the deal that negotiated with my client. There needs to be a clear rule that allows the courts to hopefully answer the questions about contracts and venue so we all can stop litigating these issues and know the right answers and avoid inundating the courts with motions to transfer for parties wanting to renegotiate contracts. Since the third circuit and the sixth circuit and now the fifth circuit have adopted the minority position, there's been a proliferation of litigation when the contract already answered the question. We cited many cases in our cert petition in a footnote and I know there's been many more since then and those are the ones you can find published. That doesn't even mention the ones that are unpublished. And so a clear rule needs to be in place to avoid these problems. Justice Kagan, you raised the issue of form non-convenience as perhaps the answer as to what would happen for a state or a foreign contract laws. I wanted to briefly touch on that because I don't believe that's the right answer. The Bremen looked at a case that came up as a form non-convenience case and said we're not going to use the form non-convenience test for enforcing a contract requiring litigation in international form. They resoundingly rejected the form non-convenience approach and I believe the circuit courts have read Bremen as rejecting that approach. If that were going to be the approach to answer the problem created by the Fifth Circuit for form and state courts, what we'd end up with is a new common law approach, whether called form non-convenience or called something else that looks nothing like form non-convenience and probably a whole new line of litigation over. Sotomayor, I think you missed my point at least. Maybe I didn't express it clearly. Bremen comes up on a form non-convenience motion and the court says yes the contract controls quite properly so. So, you know, the fact that it comes up on a form non-convenience motion has nothing to do with the question of whether the contract controls where people have negotiated for a certain set of things and there's no exceptional public interest otherwise. In Justice Kagan, following Bremen, the courts have recognized that what essentially Bremen is doing is saying form non-convenience is not the right approach. And so, instead of a common law vehicle to answer this issue, we submit that the right answer is right there and the rules are ready. It's 12b3 is the best answer. Section 1406 allows the court also to address this issue. Honestly, Section 12b6 and Professor Sachs' approach is much better than leaving these issues to balance. I can ask you one last question about the 36. Yes, Your Honor. Which is, you know, when 1404 is in, suppose a state which does not recognize these clauses. 1404 trumps that according to Stewart, but if you were under 12b6, you would have to go to what Justice Scalia does in the Stewart descent. I think you would have to go to a twin aims of eerie analysis. And in that circumstance, it seems to me that the state law would come out the victor, isn't that right? Justice Kagan, the only way I know how to answer that question is I do not know how the Professor Sachs that plays out as an issue that I do not know how it plays out, but I suspect it would result in lots of litigation figures. If it's 12b3, then Stewart stays and it's federal law that controls and the judge decides, right? Yes, Your Honor. And that's why we're asking this Court to follow the majority of approach on this issue. Thank you, Counsel

. The case is submitted