Rivera v. Kress Stores P.R., Inc., 30f4th98

In 2009 Zuleyka Rivera (plaintiff) signed a professional services agreement with Kress Stores granting exclusive rights to use her name, image, and likeness in exchange for annual payments; the Agreement included a forum-selection clause naming the Puerto Rico Court of First Instance, Superior Court of San Juan.
The Agreement had an initial two-year term, an exercised one-year option, and (allegedly) was orally renewed year-to-year thereafter with continued payments through 2018.
In 2018 Kress Stores stopped paying the agreed stipend and attempted to renegotiate; Rivera demanded payment and in 2020 sued Kress Stores and its principal Berezdivin in federal district court under diversity jurisdiction for breach and tort claims.
Kress Stores moved to dismiss based on the Agreement’s forum-selection clause; Berezdivin separately moved to dismiss as to him. The district court treated the contract as orally extended and held the forum clause mandatory, dismissed the federal action, and denied Berezdivin’s motion as moot.
Rivera appealed. The First Circuit considered whether the forum-selection clause is permissive or mandatory and whether dismissal based on it was proper, and whether the appellate court had jurisdiction to review the mootness ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Agreement's forum-selection clause is permissive or mandatory	Rivera: clause merely consents to jurisdiction in Puerto Rico (permissive) and does not bar federal suit	Kress: clause requires exclusive litigation in Puerto Rico (mandatory)	Clause is permissive: it consents to jurisdiction but does not exclude other forums; district court erred in treating it as mandatory
Whether dismissal under Rule 12(b)(6) was appropriate based on the clause and alleged oral extension	Rivera: even assuming oral extension, clause does not prohibit prosecution in federal court	Kress: oral extension kept the clause in effect, so dismissal was proper	Dismissal was improper; the court vacated dismissal and remanded; it did not resolve incorporation issues about the oral extension (to be addressed after discovery)
Whether the appellate court had jurisdiction to review the district court’s denial of Berezdivin’s motion to dismiss as moot	Rivera: notice of appeal designated the dispositive order and final judgment, so appellate jurisdiction exists over all merged rulings	Defendants: notice did not specifically appeal the mootness ruling, so appellate review is barred	Appellate jurisdiction exists; the denial-as-moot ruling was vacated along with the dismissal and remanded for further consideration

Atl. Marine Constr. Co. v. United States District Court for the Western District of Texas, 571 U.S. 49 (forum-selection clauses enforced via forum non conveniens)
Claudio-de-León v. Sistema Universitario Ana G. Méndez, 775 F.3d 41 (1st Cir. 2014) (framework for enforcing forum-selection clauses)
Ericsson Inc. v. Autoridad de Energía Eléctrica de Puerto Rico, 201 F.3d 15 (1st Cir. 2000) (consent-to-jurisdiction language is permissive)
Bautista Cayman Asset Co. v. Fountainebleu Plaza, S.E., 999 F.3d 33 (1st Cir. 2021) (similar language held permissive)
Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10 (1st Cir. 2009) (forum-selection clause enforcement principles)
Silva v. Encyclopaedia Britannica, Inc., 239 F.3d 385 (1st Cir. 2001) (contract text as best indicator of parties’ intent)
Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9 (1st Cir. 2001) (examples of mandatory forum-selection language)