From Casetext: Smarter Legal Research

Citro Fla., Inc. v. Citrovale, S.A

United States Court of Appeals, Eleventh Circuit
May 21, 1985
760 F.2d 1231 (11th Cir. 1985)

Summary

finding that clause stating “place of jurisdiction is Sao Paulo/Brazil” was permissive because clause did not specify that Sao Paulo/Brazil was the only place of jurisdiction

Summary of this case from Five Points Sarasota Inv'rs LLC v. Investec Bank PLC

Opinion

No. 84-3591.

May 21, 1985.

Christy F. Harris, William M. Midvette, III, Lakeland, Fla., for plaintiff-appellant.

J. Philip Plyler, Tampa, Fla., Jerry Anker, Washington, D.C., for defendant-appellee.

Appeal From the United States District Court for the Middle District of Florida

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.


Citro Florida, Inc., a Florida corporation, appeals the district court's refusal to exercise jurisdiction over its breach of contract action against Citrovale, S.A., a Brazilian corporation, for failure to ship for Citro Florida's account 1,000 metric tons of Brazilian frozen concentrated orange juice. In its motion to dismiss, Citrovale challenged the court's personal jurisdiction over it under the minimum contacts requirement imposed by the Due Process Clause of the United States Constitution, and under Florida's long arm statute, section 48.193, Fla. Stat. (1983). In addition, Citrovale argued that the existence of a forum selection clause mandated that the action be brought in Sao Paulo, Brazil. The district court pretermitted the jurisdictional issue because it found the clause to be a mandatory forum selection clause dispositive of the action. We disagree with the court's construction of the clause as mandatory and reverse.

Citrovale is a Brazilian corporation engaged in the business of processing citrus products, including frozen concentrated orange juice, which it exports to the United States and Europe. Citro Florida and Citrovale entered into a series of telexes concerning the purchase and shipment of the concentrate, none of which contained any jurisdictional terms. After confirming the acceptance of Citro Florida's purchase order, Citrovale sent a confirming contract for Citro Florida's execution which contained the following language:

This constitutes an executory contract between the exporter and the above-indicated buyer. Place of jurisdiction is Sao Paulo/Brazil.

Citro Florida's president signed the confirming contract without further negotiation or discussion.

Although the forum selection clause was properly determined by the district court to be an enforceable agreement, the clause does not clearly specify that Sao Paulo is the only place of jurisdiction. The district court accepted Citrovale's argument that under the United States Supreme Court's decision in M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), forum selection clauses should be enforced unless it is clearly shown that enforcement would be unreasonable or unjust, or that the clause is invalid for such reasons as fraud or overreaching. The Bremen court, however, was faced with a much more specific clause. There the contract provided that any dispute "must be treated before the London Court of Justice." Id. at 3, 92 S.Ct. at 1909. Unlike the present case, the language contained in the Bremen forum clause was not subject to two interpretations. The Bremen court did not reach the distinctions between mere "consent to jurisdiction" clauses and "mandatory" clauses.

The forum selection clause in this case is ambiguous concerning the exclusive nature of the provision. The clause merely states "place of jurisdiction is Sao Paulo/Brazil." Under the rule established by the Fifth Circuit in Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir. 1974) and Zapata Marine Service v. O/Y Finnlines, Ltd., 571 F.2d 208 (5th Cir. 1978), "when a contract provision is subject to opposing, yet reasonable interpretation, an interpretation is preferred which operates more strongly against the party from whom the words proceeded." 571 F.2d at 209. As the drafter of the ambiguous provision, the clause must be construed against Citrovale and in favor of Citro Florida as a non-exclusive consent to jurisdiction.

The district court did not reach or decide Citrovale's challenge of the district court's jurisdiction over it. We, therefore, "decline to reach the merits of an issue on which the district court has not ruled. See, e.g., Hormel v. Helvering, 1941, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037," Equal Employment Opportunity Commission v. Standard Forge Axle Co., Inc., 496 F.2d 1392, 1394 (5th Cir. 1974), cert. den. 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975); Thomas v. J.C. Penney Co., Inc., 531 F.2d 270 (5th Cir. 1976); Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980).

REVERSED.


Most respectfully, I disagree that the clause before us is subject to two interpretations or is ambiguous. The contract provision reads, " Place of jurisdiction is Sao Paulo/Brazil." (emphasis added) Place is singular. Is is singular. Neither words are subject to interpretation as one of several or many. I would affirm the dismissal.


Summaries of

Citro Fla., Inc. v. Citrovale, S.A

United States Court of Appeals, Eleventh Circuit
May 21, 1985
760 F.2d 1231 (11th Cir. 1985)

finding that clause stating “place of jurisdiction is Sao Paulo/Brazil” was permissive because clause did not specify that Sao Paulo/Brazil was the only place of jurisdiction

Summary of this case from Five Points Sarasota Inv'rs LLC v. Investec Bank PLC

finding a distinction between "mere 'consent to jurisdiction' clauses and 'mandatory' clauses"

Summary of this case from LEAF Capital Funding, LLC v. Tuskegee Univ.

finding the FSC to be permissive after concluding that the phrase "the place of jurisdiction is Sao Paulo/Brazil" was ambiguous regarding whether Brazil was the exclusive forum, and then interpreting the ambiguity regarding exclusivity against the drafter of the FSC

Summary of this case from Dura-Cast Products, Inc. v. Rotonics Manufacturing

finding provision stating that "place of jurisdiction is Sao Paulo/Brazil" "ambiguous concerning the exclusive nature of the provision."

Summary of this case from Brown v. Press Repair Engineering Sales Service

finding clause permissive which stated, "place of jurisdiction is Sao Paulo/Brazil" because it did not clearly specify that Sao Paolo was the only place of jurisdiction

Summary of this case from Taylor, Bean Whitaker Mortgage v. GMAC Mortgage Corp.

finding clause permissive which stated, "place of jurisdiction is Sao Paulo/Brazil" because it did not clearly specify that Sao Paolo was the only place of jurisdiction

Summary of this case from E-One, Inc. v. R. Cushman Associates, Inc.

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from K V Scientific Co. v. Bayerische Motoren

concluding that language of forum selection clause discussing jurisdiction in nonexclusive language reasonably could be construed as permissive

Summary of this case from K V Scientific Co. v. Bayerische Motoren

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Presidential Hosp., LLC v. Wyndham Hotel Grp., LLC

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Res. Assocs. Grant Writing & Evaluation Servs., Inc. v. Southampton Union Free Sch. Dist.

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Presbyterian Healthcare Servs. v. Goldman, Sachs & Co.

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Knight Oil Tools, Inc. v. Unit Petroleum Company

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Beverly Enters.-Texas, Inc. v. Devine Convalescent Care Ctr.

concluding phrase was ambiguous and, when construed against drafter, was permissive

Summary of this case from Beverly Enterprises-Texas, Inc. v. Devine Convalescent Care Ctr.

construing ambiguous forum selection clause against drafter "as a non-exclusive consent to jurisdiction"

Summary of this case from K V Scientific Co. v. Bayerische Motoren

noting that "[t]he Bremen court did not reach the distinctions between mere `consent to jurisdiction' clauses and `mandatory' clauses"

Summary of this case from K V Scientific Co. v. Bayerische Motoren

distinguishing "between mere `consent to jurisdiction' clauses and `mandatory' clauses"

Summary of this case from Snapper, Inc. v. Redan

construing an ambiguous forum-selection provision against the drafter

Summary of this case from FCCI Ins. Co. v. Mountain Reclamation & Constr., LLC

construing ambiguous forum-selection clause against drafter "as a non-exclusive consent to jurisdiction"

Summary of this case from Thompson v. Titus Transp., LP

distinguishing `between mere `consent to jurisdiction' clauses and `mandatory clauses"

Summary of this case from Aung Lin Wai v. Rainbow Holdings

In Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231 (11th Cir. 1985), the Eleventh Circuit considered a forum selection clause that stated "[p]lace of jurisdiction is Sao Paulo/Brazil.

Summary of this case from Hartford Insurance Company v. Hapag-Lloyd Container Line

In Citro Florida Inc. v. Citrovale, S.A., 760 F.2d 1231 (11th Cir. 1985), a panel majority of the Eleventh Circuit, reviewing a Florida district court case, held that the words "place of jurisdiction is Sao Paulo/Brazil" appearing in a telex and not objected to by the receiving party constituted a nonexclusive choice of forum clause and, therefore, did not compel dismissal of an action in which the clause was in issue.

Summary of this case from Norsul Oil Min. Co., Ltd. v. Texaco, Inc.

In Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231 (11th Cir. 1985), the district court terminated the Florida plaintiffs breach of contract suit against the Brazilian defendant on grounds that the forum-selection clause disposed of the action.

Summary of this case from Converting v. Ludlow Composites
Case details for

Citro Fla., Inc. v. Citrovale, S.A

Case Details

Full title:CITRO FLORIDA, INC., A FLORIDA CORPORATION, PLAINTIFF-APPELLANT, v…

Court:United States Court of Appeals, Eleventh Circuit

Date published: May 21, 1985

Citations

760 F.2d 1231 (11th Cir. 1985)

Citing Cases

Snapper, Inc. v. Redan

When the issue is contractual waiver, however, this concern is not present. Indeed, requiring such a high…

K V Scientific Co. v. Bayerische Motoren

Instead, plaintiff contends that the forum selection clause at issue is permissive, rather than mandatory,…