John Michaluk d/b/a Nessport Consulting (“Michaluk”) appeals an order dismissing his complaint for improper venue. We hold that the forum selection clause at issue was permissive, and therefore reverse the order of the trial court dismissing the complaint for improper venue.
Credorax (Malta), Ltd. (“Credorax Malta”), a Malta company, is an acquiring bank which processes credit or debit card payments for sellers of products and services online. On November 1, 2011, Cre-dorax Malta entered into an “Introducer Agreement” with Michaluk, a Canadian consultant, wherein it agreed to pay Mi-chaluk a transaction fee in exchange for, inter alia, his assistance in soliciting new business and acquiring new clients.
Pursuant to paragraph 10 of the Intro-ducer Agreement, which was titled “Governing Law and Jurisdiction,” the parties agreed as follows:
This Agreement shall be governed by and construed in accordance with the Laws of Malta and each party hereby submits to the jurisdiction of the Courts of Malta as regards any claim, dispute or matter arising out of or in connection with this Agreement, its implementation and effect.
Following a dispute over the payment of certain transaction fees, Michaluk filed a complaint in Miami-Dade County Circuit Court against Credorax Malta and Credo-rax USA, setting forth counts for fraud in the inducement, FDUPTA violations, unjust enrichment, and (against Credorax Malta only) breach of contract.
Credorax Malta and Credorax USA moved to dismiss the complaint for, inter alia, improper venue, asserting that the Introducer Agreement contains a mandatory forum selection clause, and thus, the claims could be brought only in Malta. Michaluk responded that the forum selection clause is permissive and not mandatory and thus, did not prohibit the filing of the cause of action in Miami-Dade. Following a non-evidentiary hearing, the trial court ruled that the language in the forum selection clause was mandatory and not permissive, and thus, entered a final order dismissing the complaint for improper venue.
ANALYSIS AND DISCUSSION
Our analysis begins with Manrique v. Fabbri,
[I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside. The correct approach [is] to enforce the forum clause specifically unless [the other party] could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.
Zapata,
Finding that the modern trend (and rapidly-growing majority view) recognized the presumptive enforceability of forum selection clauses
A year later, the Court revisited the issue of mandatory vs. permissive forum selection clauses in Quinones v. Swiss Bank Corp. (Overseas), S.A.,
Permissive clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum. See Citro Florida, Inc. v. Citrovale, S.A.,760 F.2d 1231 , 1232 (11th Cir.1985); Keaty v. Freeport Indonesia, Inc.,503 F.2d 955 , 956-57 (5th Cir.1974).
Since that time, the case law in this area has crystallized, and forum selection clauses are now routinely enforced. A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the clause, whereas “permissive forum selection clauses are essentially a ‘consent’ to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum.” Travel Exp. Inv. Inc. v. AT & T Corp.,
For example, “[i]f the forum selection clause ‘states or clearly indicates that any litigation must or shall be initiated in specified forum,’ ” then the clause is mandatory and must be honored by the trial court in the absence of a showing that the
The diverse language used in forum selection clauses often prevents direct application of or reliance on decisions in other cases. In the instant case however, there are several cases construing nearly identical language to be a permissive, rather than mandatory, forum selection clause. For example, and as mentioned earlier, the Florida Supreme Court in Quinones cited with approval to Keaty v. Freeport Indonesia, Inc.,
This agreement shall be construed and enforceable according to the law of the State of New York and the parties submit to the jurisdiction of the courts of New York..
Id.
When Keaty filed a breach of contract action in Louisiana, Freeport moved to dismiss, contending the forum selection clause mandated New York as the exclusive jurisdiction to maintain the action. The trial court agreed and dismissed Kea-t/s action. On appeal, the fifth circuit reversed the trial court’s order, holding that the forum selection clause was permissive rather than mandatory. The language at issue in this case is virtually identical to that in Keaty.
Other federal cases involving nearly identical language have uniformly held such clauses to be permissive, rather than mandatory. See e.g., Redondo Constr. Corp. v. Banco Exterior de Espana, S.A.,
Other Florida district courts have considered forum selection clauses with language similar to that used in the clause at issue, and have concluded that the forum selection clause was permissive. In Shoppes Limited Partnership v. Conn,
This instrument shall be construed in accordance with the laws of Massachusetts. The Guarantor hereby consents to the jurisdiction of the state and federal courts of the Commonwealth of Massachusetts.
The court explained that because the clause lacked words of exclusivity, it was “a classic permissive forum selection clause doing nothing more than consenting to jurisdiction in Massachusetts but not excluding jurisdiction in another forum.” Id. at 358.
In Regal Kitchens,
Any litigation concerning this contract shall be governed by the law of the State of Florida, with proper venue in Palm Beach County.
Specifically, we held that “although the venue clause unequivocally states that Florida law shall apply to any litigation of the subcontract, it lacks mandatory language or words of exclusivity to show that venue is proper only in Palm Beach County.” Id.
By contrast, Florida and federal cases analyzing clauses with similar language as the instant clause — but containing additional words of exclusivity — have been deemed mandatory. See e.g., Copacabana Records, Inc. v. WEA Latina, Inc.,
Credorax relies principally upon the decisions in Golf Scoring Sys. Unlimited, Inc. v. Remedio,
In Golf Scoring, the Fourth District found the following language in a forum selection clause mandatory:
This Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of Florida. The parties hereto consent to Broward County, Florida as the proper venue for all actions that may be brought pursuant hereto.
In Celistics, the forum selection clause provided:
In the event of any doubt, question or conflict which may arise from the interpretation or implementation of this agreement, the parties agree to select the venue and jurisdiction of the Courts and Tribunals of the city of Madrid.
Celistics, LLC,
Although we noted that the clause did not contain the “‘magic words’ ‘shall’ or must,’ ” the parties nevertheless employed language of exclusivity by use of the phrase “agree to select the venue and jurisdiction of....” We held that, by using such language, the parties “agreed that if there was any litigation stemming from the ‘interpretation or implementation’ of the Agreement, it would take place in Madrid, to the exclusion of all other possible
Finally, Credorax posits that the use of the words “submits to the jurisdiction” is different in kind from “consents ■ to the jurisdiction” and provides the language of exclusivity necessary to render the clause mandatory. Credorax relies upon Sonus,
Any controversy relating to this agreement or any modification or extension of it and any proceeding relating thereto shall be held in Minneapolis, Minnesota. The parties hereby submit to jurisdiction for any enforcement of this agreement in Minnesota.
Id.
However, in concluding that the clause at issue in that case was mandatory, the Sonus court did not rely primarily upon the distinction between “submit to” and “consent to.” As the court explained:
[T]he language of the initial sentence of the provision unquestionably says that contractual disputes “shall” be held in Minnesota. This is the specific language that makes jurisdiction in Minnesota mandatory. The following sentence in the provision only serves to confirm that when suit is brought in Minnesota, there will not be a fight about whether the opposing party is required to defend there.
Id. at 993-94 (emphasis supplied).
While we acknowledge that the language “submits to the jurisdiction” may in some circumstances be construed differently than the term “consents to the jurisdiction,” courts must consider the entire language of the forum selection clause (and other relevant portions of the agreement) in determining whether it is permissive or mandatory. In the instant case, the use of the word “submit” instead of “consent”, does not by itself provide the requisite words of exclusivity to render this forum selection clause mandatory.
In Cardoso v. FPB Bank,
Any legal action ... with respect to this Agreement ... may be brought in the courts of Antigua, and/or in the Courts of the city of Sao Paulo, state of Sao Paulo, Federative Republic of Brazil, at the sole option of the Lender, and the Borrower and Guarantor hereby accept and irrevocably submit to the jurisdiction of such courts for the purpose of any such action or proceeding.
Id. at 1249 (emphasis added).
The phrase “irrevocably submit to the jurisdiction,” juxtaposed with the earlier phrase “may be brought in courts of ...”, undermines any assertion that the forum selection clause is mandatory in nature. We held in Cardoso that an “ordinary and customary reading of the clause in question leads to the inescapable conclusion that the forum selection clause ... is permissive, not mandatory.” Id. Notwithstanding the use of the phrase “irrevocably submit to the jurisdiction,” we determined that, read as a whole, the forum selection clause was merely a “consent to a lawsuit in the locations(s) mentioned therein, but does not preclude litigation in other locations.” Id. See also Keaty,
CONCLUSION
Having reviewed the entire forum selection clause, together with the other provisions of the Agreement, we conclude that the clause is permissive, as it lacked mandatory language or words of exclusivity to establish that jurisdiction was proper only in the courts of Malta. The trial court erred in concluding that the forum selection clause was mandatory and in dismissing the complaint on this basis.
We reverse the order dismissing the complaint and remand for proceedings consistent with this opinion.
Notes
. Upon a motion for clarification filed by Mi-chaluk as to whether the court’s order applied to both Credorax Malta and Credorax USA, the court entered a separate order clarifying that the order of dismissal applied to both defendants. Michaluk appeals both orders.
. Importantly, the parties agreed below (and maintain on appeal) that the language of the forum selection clause is unambiguous, leaving only a legal determination of whether this unambiguous language is mandatory or permissive. In any event, there was no eviden-tiary hearing which might provide an eviden-tiary basis to resolve any purported claim of ambiguity. Even the elementary question of which party drafted the clause at issue was not submitted by the parties or determined by the trial court.
. Manrique,