83 F. Supp. 3d 1185
D. Kan.2015Background
- Bowen Engineering (IN) performed work on a Kansas biofuels project and sued for payment; Walters Metal (IL) was originally defendant and later settled and assigned its claims against Scott Process Systems and Pacific Indemnity to Bowen.
- Bowen filed claims against Scott and Pacific for breach/unjust enrichment and sought to enforce a mechanics lien and recovery against statutory lien surety bonds under K.S.A. § 60-1103/60-1101.
- Defendants Scott and Pacific moved for judgment on the pleadings (arguing Bowen is too remote to qualify for bond remedies under Kansas law) and to transfer under § 1404(a) based on an ASA forum-selection clause requiring litigation in Missouri.
- Central factual dispute: whether Scott was the contractor (making Bowen a direct supplier/subcontractor entitled to lien/bond remedies) or first-tier subcontractor (making Bowen a third-tier claimant excluded from K.S.A. protections).
- Court found the project chain placed Scott as first-tier subcontractor, Walters as second-tier, and Bowen as third-tier (too remote to invoke K.S.A. § 60-1103 bond remedy).
- Court also held the ASA forum-selection clause was enforceable against Bowen (defendants as intended beneficiaries) and transferred Bowen’s contract claims to the Eastern District of Missouri.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to recover on Kansas statutory bond / mechanics lien (K.S.A. 60-1103) | Bowen: Abener was owner’s agent (or not the true contractor), so Bowen was a supplier to a subcontractor and qualifies for lien/bond remedies | Scott/Pacific: Bowen is a supplier to a sub-subcontractor (third-tier) and thus excluded from statutory lien/bond protection under Kansas law | Held: Bowen is too remote (third-tier); K.S.A. 60-1103 does not apply; bond claim dismissed |
| Effect of Abener’s role (owner, agent, or contractor) | Bowen: agency or close Abengoa–Abener relationship alters tiers and entitles Bowen to lien | Defendants: Abener can be both owner’s agent and contractor; statutory tier analysis under § 60-1103 controls regardless; Scott was subcontractor | Held: Even if Abener was owner’s agent or closely related to owner, statutory structure still makes Scott the subcontractor and Bowen third-tier; no lien relief |
| Timeliness / standing to invoke ASA forum-selection clause | Bowen: Transfer motion untimely; defendants lack standing as nonsignatories; Kansas statute (KFPCA) requires Kansas venue for construction claims | Scott/Pacific: § 1404(a) transfer can be sought anytime; as intended beneficiaries they can invoke clause; forum clause governs disputes | Held: Transfer motion timely under § 1404(a); defendants can enforce clause as intended beneficiaries; clause presumptively valid |
| Whether KFPCA or Kansas public policy bars enforcing out-of-state forum-selection clause | Bowen: KFPCA preserves venue rights; venue for lien actions must be in county where property is located | Defendants: KFPCA does not expressly override forum clauses; federal law governs enforcement of forum-selection clauses in diversity cases | Held: Federal law governs; forum-selection clauses are presumptively enforceable and KFPCA does not bar enforcement here; transfer to E.D. Mo. ordered |
Key Cases Cited
- Wichita Sheet Metal Supply Inc. v. Dahlstrom & Ferrell Constr., 792 P.2d 1043 (Kan. 1990) (suppliers to sub-subcontractors lack statutory lien rights)
- J.W. Thompson Co. v. Welles Prods., 758 P.2d 738 (Kan. 1988) (same principle on remoteness of suppliers)
- BRB Contractors v. Akkerman Equip., 935 F. Supp. 1156 (D. Kan. 1996) (discusses circumstances where close relationships can affect tier status)
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clauses presumptively valid; unenforceable only for strong contrary public policy)
- Atlantic Marine Constr. Co. v. United States Dist. Ct., 134 S. Ct. 568 (2013) (federal law and § 1404(a) principles govern enforcement and effect of forum-selection clauses)
- Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643 (4th Cir. 2010) (federal court enforcement of forum clauses despite contrary state statute)
- Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) (procedural nature of forum-selection and venue questions in federal diversity cases)
- Packard v. Credit Solutions of Am., 213 P.3d 437 (Kan. Ct. App. 2009) (Kansas courts enforce reasonable forum-selection clauses)