Opinion
December 18, 1992.
Present: Sherman, P.J., Forte Coven, JJ.
Contract, Sales commissions; "Forum selection clause." Consumer Protection, G.L.c. 93A; Unfair and deceptive practices. Practice, Civil, Motion to dismiss for lack of jurisdiction; Dist./Mun. Cts. R. Civ. P., Rule 12.
Report of court's reversal of trial court's allowance of defendant's motion to dismiss and return of action for trial. Dismissal motion heard in the Woburn Division by Brisson, J.
F. Anthony Mooney for the plaintiff.
Douglas W. Salveson for defendant SEEQ Technology, Inc.
This is an action to recover unpaid commissions allegedly earned by the plaintiff as the exclusive New England sales representative of defendant SEEQ Technology, Inc. ("SEEQ").[*]
Both the plaintiff, a New Hampshire corporation, and defendant SEEQ, a California corporation, have a usual place of business in Burlington, Massachusetts. The sales distribution agreement executed by the parties contained a "forum selection clause" which provided:
The validity, construction and enforcement of this Agreement shall be governed by the laws of the State of California. [Both parties] agree that any litigation which may be initiated between them shall be filed and heard only in a state or federal court located within the State of California, and both parties agree that venue in California is and shall be proper [emphasis added].
The trial court allowed defendant SEEQ's Dist./Mun. Cts. R. Civ. P., Rule 12 motion to dismiss the action on the grounds that the Massachusetts trial court had no jurisdiction given the parties' contractual choice of a California judicial forum.
The plaintiff's appeal from the court's dismissal of this action on the basis of the parties' forum selection clause is governed by our decisions in J.S.B. Industries, Inc. v. Bakery Machinery Distrib., Inc, 1991 Mass. App. Div. 1 and Graphics Leasing Corp. v. The Y Weekly, 1991 Mass. App. Div. 110. See also, Leasefirst v. Decot Bros., 1990 Mass. App. Div. 177. Unless and until the issue of contractual forum selection clauses is reexamined by the Supreme Judicial Court of this Commonwealth, this Division is bound by the existing Massachusetts law of Nute v. Hamilton Mut. Ins. Co., 72 Mass. 174 (1856). See generally, Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973). In compliance with such precedent, the trial court's dismissal of this action must be vacated.
Even if Nute were overruled, see W.R. Grace Co. v. Hartford Accid. Indem. Co., 407 Mass. 572, 582 n. 13 (1990; Ernest Norman Hart Bros. v. Town Contractors, Inc., 18 Mass. App. Ct. 60, 65 (1984), and the modern rule recognizing the validity of forum selection clauses were adopted, see M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972), enforcement of the clause in the instant case might have hinged on whether the parties' contractual choice of both California courts and California law was deemed to frustrate the strong legislative policy embodied in G.L.c. 93A for the regulation of fair trade and commerce in Massachusetts. See generally, Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693 (1975).
The court's allowance of the defendant's motion to dismiss is hereby reversed, and this action is returned to the Woburn Division for trial.
So ordered.