Forum Selection Clauses: Introduction to Kelman
Sometimes appellate courts render opinions that helpfully explain somewhat complexed or arcane procedural rules. The Second Circuit’s decision in Rabinowitz v. Kelman, No. 22-1747, slip op. (July 24, 2023) is of this ilk, and is one that should be consulted not only when litigating forum-selection-related issues, but also for purposes of drafting forum selection clauses.
Kelman— which arose out of a petition filed in U.S. District Court for the Southern District of New York (the “SDNY”) to confirm a rabbinical arbitration award—addressed two issues: (1) whether the district court had subject matter jurisdiction where the amount of controversy and diversity of citizen requirements were met but the court was not one expressly contemplated by the forum selection clause; and (2) whether the forum selection clause was mandatory or permissive, that is, whether it required the action to be brought in one of the fora specified in the clause and no other.
The Court held that the district court had subject matter jurisdiction under the diversity jurisdiction (28 U.S.C. § 1332(a)(2)) because the petitioner adequately pleaded diverse citizenship and an amount in controversy in excess of $75,000, exclusive of interests and costs, and because the parties lacked the power to divest the court of subject matter jurisdiction by agreement, including by agreement to a forum selection clause.
It further held that the “forum selection clauses” were “permissive arrangements that merely allow litigation in certain fora, rather than mandatory provisions that require litigation to occur only there.” Slip op. at 32. Under a “modified forum non conveniens” analysis prescribed by the United States Supreme Court, the forum selection clauses did not bar litigation brought in the SDNY. Slip op. at 32. The Court accordingly vacated the district court’s judgment dismissing the case for lack of subject matter jurisdiction and remanded the case to the district court. Slip op. at 32. Continue Reading »
A—an Ontario-based corporation–commences a New York state court lawsuit against B—a New York-based corporation–in New York state court for breach of contract. The contract contains a mandatory New York choice-of-forum clause and a very broad choice-of-law provision, which, among other things, designates New York law to govern the contract and its “enforcement.” If Ontario’s two-year statute of limitations applies, then the suit is time barred, but if New York’s six-year statute of limitations applies, then the suit is timely. Is A’s suit barred by the statute-of-limitations? 
