The opinion of the court was delivered by: STEWART
This is an action for nonpayment of a $1,000,000 promissory note caused by defendants' purported defaults under a contemporaneous loan agreement.
The loan agreement at issue contains a forum selection clause which provides in part that "the Supreme Court of the State of New York, within any county of the City of New York shall have jurisdiction of any dispute" between plaintiff First National City Bank ("Citibank") and defendants. Notwithstanding this clause, defendants removed the instant lawsuit from the New York County Supreme Court to this court on August 23, 1974.
At issue before this court now are Citibank's motion to remand this action to the New York State Supreme Court and defendants' motion to transfer the action to the Eastern District of Wisconsin, pursuant to 28 U.S.C. § 1404(a).
Citibank asks this court to decline to exercise jurisdiction over this case and to remand it to the New York State court, pursuant to 28 U.S.C. § 1447(c), on the ground that the defendants waived their right to removal by agreeing in the loan agreement to the above-noted forum selection clause. According to Citibank, the forum selection clause requires "any" dispute arising under this loan agreement to be litigated in the New York State Supreme Court. Defendants contend, by contrast, that the forum selection clause does not constitute an agreement to confer venue exclusively on the New York State courts.
The Supreme Court recently held in an admiralty case that a forum selection clause which specified a certain country where suits would be determined should be enforced unless it could be shown that its enforcement would be "unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 1916, 32 L. Ed. 2d 513 (1972). At least one circuit court has expressed the view that the Bremen holding would probably apply to domestic choice of forum questions. See In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 234 n. 24 (6th Cir. 1972) (dictum).
In the instant case, we do not believe that the forum selection clause at issue here is mandatory, requiring that any action under the loan agreement be tried only in the New York State Supreme Court. Accordingly, the forum clause here is distinguishable from that in Bremen, which stated that "[any] dispute arising must be treated before the London Court of Justice." 407 U.S. at 2, 92 S. Ct. at 1909. (emphasis added). See Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (3d Cir. 1966) ("The Subcontractor agrees that it will not commence any action . . . arising out of . . . this subcontract agreement, in any Courts other than those in the County of New York, State of New York . . ." (emphasis added). Rather, the forum selection clause here is similar to that in Keaty v. Freeport Indonesia, Inc., 503 F.2d 955 (5th Cir. 1974). In that case, the court construed a clause similar to the one here at issue which stated in pertinent part that "the parties submit to the jurisdiction of the courts of New York". 503 F.2d at 956. The court found that clause subject to two opposing, yet reasonable, interpretations. 503 F.2d at 957. Applying the rule of construction that any ambiguities should be construed against the drafter of the clause, the court concluded that the forum selection clause did not preclude an action in another forum.
We find that Keaty supports our conclusion that the forum selection clause here is not mandatory, since that clause does not clearly indicate that any dispute brought under the loan agreement must be litigated in the New York State Supreme Court. Rather, it is susceptible to the interpretation that the New York State Supreme Court could have jurisdiction of disputes under the loan agreement, but that other forums may also be appropriate. Since the loan agreement was drafted by plaintiff Citibank, we construe such an ambiguity against it, and find that the forum selection clause was not mandatory.
Citibank's reliance on Perini Corp. v. Orion Ins. Co., Ltd., 331 F. Supp. 453 (E.D.Cal.1971), is misplaced. In Perini, the insurer unequivocally agreed to submit to the jurisdiction of any court of competent jurisdiction selected by the assured and to comply with all requirements necessary to give such court jurisdiction. Here, by contrast, there was no such unequivocal agreement to submit to the jurisdiction of the New York State Supreme Court. For the same reason, Lavan Petroleum Co. v. Underwriters at Lloyds, 334 F. Supp. 1069 (S.D.N.Y.1971) and General Phoenix Corp. v. Malyon, 88 F. Supp. 502 (S.D.N.Y.1949), cited by Citibank, are inapposite.
In any event, the Perini court held that the service of suit/forum selection clause did not constitute a waiver by defendants of their right to removal, but merely presented a situation in which the court should decline to exercise its jurisdiction in order to enforce the parties' forum selection agreement. Since we do not have a mandatory forum selection clause before us, we need not decide whether defendants waived their right to remove their action to federal court or whether we should decline to exercise jurisdiction. Accordingly, we hold that defendants properly removed this action to federal court,
and deny plaintiff's motion to remand this case to the New York County Supreme Court.
We next turn our attention to defendants' motion to transfer this action to the Eastern District of Wisconsin. The applicable statute, 28 U.S.C. § 1404(a), provides:
For 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.
Initially, we note that this action might have been brought originally in the Eastern District of Wisconsin, since there is proper diversity of citizenship between the parties, and since venue there would have been proper. Additionally, we note that 12 U.S.C. § 94, the venue statute for national banking associations, is inapplicable, since this is an action by, rather than against, a national bank.
However, we must also consider the related issue of whether 12 U.S.C. § 94 precludes transfer of this action as a result of defendants' counterclaims against Citibank, notwithstanding that it originally "might have been brought" in the Eastern District of Wisconsin.
Because 12 U.S.C. § 94 has been interpreted as a mandatory venue provision, see Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S. Ct. 520, 9 L. Ed. 2d 523 (1963), Citibank argues that it should not be required to defend counterclaims against it in Wisconsin. Citibank contends that if the defendants had sought to bring an original action against it, they could not have done so in Wisconsin (because of 12 U.S.C. § 94), and therefore, should not be allowed to do so in the instant case. In addition, Citibank notes with some persuasiveness that this is not a situation where it has voluntarily submitted itself to jurisdiction in Wisconsin, thereby waiving the 12 U.S.C. § 94 venue provisions and consenting to be sued by way of counterclaims in Wisconsin. Rather, Citibank reasons, to allow this action to be transferred would be to contravene the spirit and intent of 12 U.S.C. § 94. We agree. The purpose of 12 U.S.C. § 94 is to prevent inconvenience and interruption in the activities of a national bank by suits in state or federal courts in a state or federal district other than that in which the national bank has its main office, and to avoid the disruption of requiring bank records to be sent to distant forums. Reaves v. Bank of America, 352 F. Supp. 745 (S.D.Cal.1973). Those purposes would be frustrated if ...