Contractual forum selection clauses may be “mandatory” or “permissive”. However, there are times when a forum selection clause that appears to be permissive is actually mandatory. Florida’s Third District Court of Appeal recently addressed such a situation in Quick Cash, LLC, v. Tradenet Enterprises Inc., 3rd DCA Case No. 3D16-1640 (Fla. 3d DCA Feb. 22, 2017).
In Quick Cash, the Third DCA was asked to consider whether this clause required the parties to litigate in California:
This purchase order shall be deemed entered into and performed in the State of California and Buyer consents to the jurisdiction of the State of California for purposes of enforcement of the terms hereof.
The Court noted that there are no “magic words” that need to be used to make a forum selection clause mandatory, but stated that:
the test is whether, when read as a whole, the forum selection clause indicates that the parties intended to try a case in the specified forum and to the exclusion of all others.
Finding that allowing the case to proceed in Florida would “render meaningless” the exclusivity language in the forum selection clause, the Court ruled that the trial court properly dismissed the case for lack of jurisdiction and improper venue. So, while no specific language is required to make a forum selection clause mandatory, viewing such a clause in a way that makes “words of exclusivity” meaningless is not proper.