United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
case began as a lawsuit Double H Masonry, Inc.,
(“Double H”) brought against Liberty Mutual
Insurance Company (“Liberty”) and Lockton
Companies, LLC, (“Lockton”). (Docket 1). As the
case progressed, Lockton was removed from the dispute and
Liberty filed a third-party complaint naming Milender White
Construction Company, MW Real Estate LLC, U.S. Facilities
Management LLC and MW Selfwork LLC. (Dockets 28, 29 & 112).
Double H and Liberty settled their claims, leaving Liberty
and MWCC as the lone parties. (Dockets 176 & 177).
Pending before the court is Liberty's summary judgment
motion and MWCC's summary judgment motion and motion to
transfer the case to a different jurisdiction. (Dockets 168,
169 & 174).
AND PROCEDURAL BACKGROUND
H's complaint revolved around masonry work it completed
at the Pine Ridge Justice Center in Pine Ridge, South Dakota.
(Docket 1 at pp. 2-3). Milender White solicited subcontractor
bids for the masonry work and Double H submitted a bid
Milender White accepted. Id. MWCC obtained a payment
bond from Liberty for the Pine Ridge Justice Center project.
Id. at p. 3; (Docket 1-1). “The general
purpose of the payment bond was to guarantee that Milender
White would pay its subcontractors all amounts due and owing
for labor and materials.” (Docket 132 at p. 2). Based
on the payment bond, Double H sought to hold Liberty liable
for work it completed without compensation. (Docket 1 at pp.
in the case, Double H filed an amended complaint that dropped
Lockton as a defendant and added two causes of action.
(Docket 29 at pp. 30-35). Double H then filed a second
amended complaint pursuing two causes of
action. (Docket 61 at pp. 25-30). Liberty moved to
dismiss Double H's second claim, and the court denied in
part and granted in part Liberty's motion. (Docket 132 at
filed a third-party complaint against MWCC. (Docket 112).
When MWCC obtained the payment bond, it entered into a
General Agreement of Indemnity (“GAI”) with
Liberty. (Dockets 112 at pp. 4-5 & 112-2). Once Double H
filed suit against Liberty, Liberty “made multiple
demands on [MWCC] to place Liberty in sufficient funds to
indemnify Liberty for its actual and anticipated losses and
for cooperation with Liberty's investigation into the
claims.” (Docket 112 at p. 6). Liberty filed its
third-party complaint because MWCC did not comply with
Liberty's demands. Id. The third-party complaint
consists of five claims: breach of express contract, common
law indemnification, specific performance, quia
timet rights and unjust enrichment. Id. at
pp. 6-12. MWCC filed a joint answer. (Docket 134).
after MWCC filed its answer, the United States Magistrate
Judge mediated the claims between Double H and Liberty.
(Dockets 159 & 167). Double H and Liberty stipulated to
the dismissal of Double H from this dispute, and the court
granted dismissal. (Dockets 176 & 177). The court
realigned the parties so the case caption labels Liberty as
plaintiff and each entity of MWCC as defendants. (Docket 185
at p. 2). Following Double H's exit from the dispute,
Liberty and MWCC filed motions for summary judgment against
each other. (Dockets 168 & 169). MWCC also filed a motion
to transfer the case to the United States District Court for
the District of Colorado. (Docket 174).
Motion to transfer
to 28 U.S.C. § 1404(a), MWCC moves to transfer its
dispute with Liberty to the United States District Court for
the District of Colorado. (Docket 174). Section 1404(a)
provides: “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division
where it might have been brought . . . .”
Liberty's forum selection clause argument
argues MWCC's motion is not proper because the
parties' GAI includes a forum selection clause that bars
MWCC's motion to transfer. (Docket 181 at pp. 5-6).
Liberty asserts this provision is an enforceable forum
As to any legal action or proceeding related to this
Agreement, the Indemnitors and Principals consent to the
general jurisdiction of any local, state or Federal court of
the United States or its territories having proper subject
matter jurisdiction or in any court of the United States or
its territories in which any claim may be brought against the
Surety under any Bonds, and waive any claim or defense in any
such action or proceeding based on any alleged lack of
personal jurisdiction, improper venue, forum non conveniens
or any similar basis. Indemnitors and Principals further
waive personal service or any and all process.
(Docket 112-2 at p. 4).
selection clause is prima facie valid and enforceable unless
it is (1) unreasonable and unjust, (2) the result of fraud or
overreaching, or (3) enforcing it goes against a strong
public policy in the forum state. M/S Bremen v.
Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). MWCC does
not show the forum selection clause is unenforceable for any
of these reasons, so the court finds it is enforceable.
selection clauses are mandatory or permissive. See Dunne
v. Libbra, 330 F.3d 1062, 1063 (8th Cir. 2003). The
United States District Court for the Northern ...