Devil's Advocate, LLC v. Grynberg Petroleum Company , 588 F. App'x 264 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1561
DEVIL’S ADVOCATE, LLC,
Plaintiff - Appellant,
v.
GRYNBERG PETROLEUM COMPANY; JACK J. GRYNBERG,
Defendants - Appellees.
No. 14-1693
DEVIL’S ADVOCATE, LLC,
Plaintiff - Appellant,
v.
GRYNBERG PETROLEUM COMPANY; JACK J. GRYNBERG,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-01454-CMH-IDD)
Submitted: November 25, 2014 Decided: December 19, 2014
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.
No. 14-1561 vacated and remanded; No. 14-1693 dismissed by
unpublished per curiam opinion.
John W. Toothman, DEVIL’S ADVOCATE, LLC, Great Falls, Virginia,
for Appellant. Brian V. Ebert, BRIAN V. EBERT, P.C., Fairfax,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Devil’s Advocate, LLC, appeals the district court’s
order granting Defendants’ motion to dismiss for improper venue
under Federal Rule of Civil Procedure 12(b)(3) and denying as
moot its motion for partial summary judgment, docketed as Case
No. 14-1561, and the court’s denial of its motion for recovery
of time, attorney’s fees, and expenses, docketed as Case No. 14-
1693. We vacate the district court’s order in Case No. 14-1561
and remand for further proceedings, and dismiss the appeal in
Case No. 14-1693 as premature.
Devil’s Advocate contends that the district court
erred in granting Defendants’ motion to dismiss under Rule
12(b)(3) because the District Court for the Eastern District of
Virginia was a both a proper venue under 28 U.S.C. § 1391 (2012)
and a permissible venue under the forum selection clause in the
contract between the parties. We agree that the district court
erred in dismissing the complaint for improper venue under Rule
12(b)(3). “Whether venue is . . . ‘improper’ depends
exclusively on whether the court in which the case was brought
satisfies the requirements of” § 1391(b); a forum selection
clause has no effect on the inquiry. Atl. Marine Constr. Co. v.
U.S. Dist. Ct., 134 S. Ct. 568, 577 (2013). Thus, “a case filed
in a district that falls within § 1391 may not be dismissed
under . . . Rule 12(b)(3).” Id. A review of the record reveals
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that, under § 1391(b), venue in this case is proper in the
Eastern District of Virginia.
Moreover, we conclude that the doctrine of forum non
conveniens does not provide a basis for dismissing the
complaint. See Atl. Marine Constr., 134 S. Ct. at 580 (“[T]he
appropriate way to enforce a forum-selection clause pointing to
a state . . . forum is through the doctrine of forum non
conveniens.”). The forum selection clause at issue permits the
filing of a complaint in the Alexandria Division of the Eastern
District of Virginia. See FindWhere Holdings, Inc. v. Sys.
Env’t Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010)
(adopting rule that “forum selection clauses that use the term
‘in [a state]’ express the parties’ intent as a matter of
geography, permitting jurisdiction in both the state and federal
courts of the named state”). Thus, we vacate the district
court’s dismissal order in Case No. 14-1561 and remand for
further proceedings. *
*
We decline to address Devil’s Advocate’s contention that
the district court erred in denying as moot its motion for
partial summary judgment. We instead leave consideration of the
propriety of summary judgment to the district court in the first
instance on remand. See Kubicko v. Ogden Logistics Servs., 181
F.3d 544, 555 n.9 (4th Cir. 1999) (“It is the general rule . . .
that a federal appellate court does not consider an issue not
passed upon below.”) (quoting Singleton v. Wulff, 428 U.S. 106,
120 (1976)).
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In light of our disposition in No. 14-1561, and in the
interest of judicial economy, we decline to address Devil’s
Advocate’s appeal of the district court’s order denying
attorney’s fees and expenses at this juncture. We therefore
dismiss Devil’s Advocate’s appeal in No. 14-1693. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
No. 14-1561 VACATED AND REMANDED
No. 14-1693 DISMISSED
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