Commercial Litigation and Arbitration

Circuit Split as to Whether Dismissal Motion Based on Forum Selection Clause Is Properly Raised under Rule 12(b)(1), 12(b)(3) or 12(b)(6)

Lanier v. Syncreon Holdings, Ltd., 2012 U.S. Dist. LEXIS 114117 (E.D. Mich. Aug. 14, 2012):

Whether a motion to dismiss based on the existence of a valid forum selection clause is properly granted pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(3) for improper venue, or Rule 12(b)(6) for failure to state a claim has been a matter of confusion for federal courts. See Heinz v. Grand Circle Tavel, 329 F.Supp.2d 896, 899 n.6 (W.D. Ky. 2004) (collecting cases evidencing circuit split). Recently, in Wong v. Partygaming Ltd., 589 F.3d 821, 830 (6th Cir. 2009), the Sixth Circuit stated that "forum selection clause[s] should not be enforced through dismissal for improper venue under FRCP 12(b)(3) because these clauses do not deprive the court of proper venue. (citing Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 535 (6th Cir. 2002)). In holding, the Sixth Circuit appeared to endorse the view that enforcement of a forum selection clause is a matter of contract that does not go to jurisdiction or venue. Accordingly, this Court evaluates Defendants' arguments regarding the Plan's forum selection clause under Rule 12(b)(6).

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