Citro Florida, Inc., a Florida Corporation v. Citrovale, S.A., a Foreign Corporation
760 F.2d 1231
11th Cir.
1985
Check Treatment

*1 1231 JOHNSON, FAY and Circuit Before DYER, Judge. Senior Judges, and Circuit FLORIDA, INC., Florida a CITRO Plaintiff-Appellant, corporation, PER CURIAM: v. Inc., Florida, corporation, a Florida Citro S.A., CITROVALE, foreign corpora- a to the court’s refusal exer- appeals district tion, Defendant-Appellee. its of jurisdiction over breach contract cise Citrovale, S.A., a Brazilian against action No. 84-3591. ship failure to for Citro corporation, for Appeals, Court of United States 1,000 tons of Bra- account metric Florida’s Eleventh Circuit. orange juice. In zilian frozen concentrated dismiss, challenged its to Citrovale motion 21, May 1985. personal jurisdiction over the court’s it un- requirement im- der the minimum contacts of posed by the Due the Process Clause Constitution, and under Flor- United States statute, 48.193, long arm section Fla. ida’s addition, (1983). argued In Citrovale Stat. of a selection the existence forum that brought that the action be clause mandated Paulo, district- in Brazil. The court Sao pretermitted jurisdictional issue be- the mandatory it found the clause to be a cause of the dispositive selection clause forum with court’s disagree We the con- action. mandatory as of clause and struction the reverse. corporation is Brazilian en- a

Citrovale of gaged processing in the business citrus Judge, filed Fay, dissented and Circuit including frozen concentrated or- products, opinion. exports it to the United ange juice, which Europe. Citro Florida and Ci- States and into a of telexes con- trovale entered series purchase cerning shipment the and of the concentrate, any of which contained none confirming jurisdictional terms. After the purchase or- acceptance of Citro Florida’s der, confirming sent a contract Citrovale which con- for Florida’s execution Citro following language: tained the executory contract constitutes an This exporter the above-indi- the and between jurisdiction is buyer. Place of Sao cated Paulo/Brazil. Midvette, Harris, M. Christy William F. the con- signed president Florida’s Citro Fla., III, Lakeland, plaintiff-appellant. for negotia- further firming contract without Fla., Ank- Philip Plyler, Tampa, Jerry J. or discussion. tion D.C., defendant-appel- er, Washington, for clause was Although selection the forum lee. by to the district court properly determined agreement, the clause an enforceable be Paulo is clearly specify that Sao not does *2 1232 (5th Cir.1976); Bell, place jurisdiction. of The district 531 F.2d 270 Baker v. only

the accepted argument (5th Cir.1980).. that court Citrovale’s 630 F.2d 1046 Supreme under the United States Court’s REVERSED. Zapata decision in M/S Bremen v. Off- 1, 15, Company, 407 U.S. 92 S.Ct. Shore FAY, Judge, dissenting: Circuit 1907, 1916, (1972), 32 L.Ed.2d 513 forum respectfully, disagree Most I that the enforced unless selection clauses should be subject interpre- clause before us is to two clearly it is shown that enforcement would ambiguous. pro- tations or is The contract unjust, or that the be unreasonable or reads, jurisdiction vision “Place of is Sao for reasons as fraud clause is invalid such added) (emphasis Paulo/Brazil.” is Place court, overreaching. The or Bremen how- singular. singular. Is is Neither words ever, specific was faced with a much more subject interpretation are to as one of sev- provided There the contract that clause. many. eral or I would affirm the dismis- any dispute “must treated before the be sal. 3, London of at 92 Court Justice.” Id. case, present at Unlike the the

S.Ct. 1909.

language contained in the Bremen forum subject interpreta-

clause was not to two

tions. The Bremen court did not reach the jur-

distinctions between mere “consent to “mandatory”

isdiction” clauses and claus-

es.

The forum selection clause in this case is ambiguous concerning the exclusive nature America, UNITED STATES of provision. merely of the The clause states Plaintiff-Appellee, “place jurisdiction of is Sao Paulo/Brazil.” v. by Under the rule the Fifth established SARDA-VILLA, Evelio Mario Leonardo Indonesia, Keaty Freeport Circuit in v. Paret-Casola, Defendants-Appellants. Inc., (5th Cir.1974) Zapa- 503 F.2d 955 and Finnlines, Ltd., ta Marine v. Service O/Y No. 84-5231. (5th Cir.1978), 571 F.2d 208 “when a con- Appeals, United States Court of provision subject yet tract is opposing, to Eleventh Circuit. interpretation, interpretation reasonable an preferred is operates strongly which more 21, May 1985. against party the from whom the words proceeded.” F.2d at 571 209. As the

drafter ambiguous provision, of the the

clause must be against construed Citrovale in

and favor of Citro a Florida as non-exclu- jurisdiction.

sive consent to

The district court did not reach or decide challenge

Citrovale’s of the district court’s We, therefore,

jurisdiction over it. “decline

to reach the merits of an issue on which the See,

district court has not e.g., ruled. Hor- 1941, 552,

mel v. 312 Helvering, U.S. 61 719, 1037,” Equal

S.Ct. 85 L.Ed. Employ-

ment Opportunity Commission v. Stan- Co., Inc., Forge

dard & Axle 496 F.2d

1392, (5th Cir.1974), 1394 cert. 419 den. 1106, 776,

U.S. 95 S.Ct. 42 L.Ed.2d 801

(1975); Co., Inc., v. Penney Thomas J.C.