Ferri Contracting v. Town of Masontown ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FERRI CONTRACTING COMPANY, 
INCORPORATED, a Pennsylvania
Corporation,
Plaintiff-Appellant,
v.
TOWN OF MASONTOWN, WEST
VIRGINIA, a Municipal corporation
and a subdivision of the state of  No. 03-1303
West Virginia,
Defendant-Appellee,
and
CERRONE & ASSOCIATES,
INCORPORATED, a West Virginia
corporation,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert E. Maxwell, Senior District Judge.
(CA-02-53-2)
Submitted: September 9, 2003
Decided: September 29, 2003
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
2 FERRI CONTRACTING v. TOWN OF MASONTOWN
COUNSEL
Charles M. Johnstone, II, Johnson W. Gabhart, THAXTON & JOHN-
STONE, L.L.P., Charleston, West Virginia, for Appellant. Carl L.
Fletcher, Jr., DANIELS LAW FIRM, P.L.L.C., Charleston, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ferri Contracting Co., Inc., appeals from the district court’s order
dismissing its claims against the Town of Masontown, West Virginia,
based on the language of a forum selection clause in the parties’ con-
tract. The contract provided that any litigation with respect to the con-
tract "will be decided [ ] in a court of competent jurisdiction within
the state in which the OWNER is located." The Town of Masontown,
the "owner," is located in West Virginia, thus the forum selection
clause provided that any litigation would be decided "in a court [ ]
within the state [of West Virginia]."
Ferri Contracting filed a complaint in a federal district court in
West Virginia. Upon the Town of Masontown’s motion to dismiss
under the forum selection clause, the district court found that the
above-quoted language was ambiguous. Having ruled that the lan-
guage was ambiguous, the district court then made a determination of
the intent of the parties as to the meaning of the clause. In doing so,
the court ruled that the clause was intended to limit any litigation with
respect to the contract to the state courts of West Virginia. Thus, the
district court dismissed the action, stating its "election not to exercise
its jurisdiction in order to give effect to the terms of the contract."
Ferri Contracting appeals from this disposition.
FERRI CONTRACTING v. TOWN OF MASONTOWN 3
Whether a contract is ambiguous is a question of law, which this
court reviews de novo. Moore Bros. Co. v. Brown & Root, Inc., 207
F.3d 717, 726 (4th Cir. 2000); Denzler v. Questech, Inc., 80 F.3d 97,
101 (4th Cir. 1996).
In addressing the meaning of the agreement to litigate any disputes
under the contract to a court "within the state" of West Virginia, we
consider whether this restriction is one of sovereignty or of geogra-
phy. See City of New York v. Pullman Inc., 477 F. Supp. 438, 442
(S.D.N.Y. 1979) (distinguishing between geography ("courts located
in the state of") and sovereignty ("courts of the state of")). Where the
forum selection clause imposes a geographic limit, litigation is per-
mitted in either a federal or state court within the specified geographic
boundary. Id.; see Basicomputer Corp. v. Scott, 973 F.2d 507, 509
(6th Cir. 1992) (holding that federal district court was permissible
forum where contract specified litigation in a court "in the State of
Ohio"); Custom Blending Int’l v. E.I. Dupont De Nemours & Co., 958
F. Supp. 288, 289 (S.D. Tex. 1997) (rejecting argument that phrase
"courts within Texas" does not allow federal forum); Shaw Group,
Inc. v. Natkin & Co., 907 F. Supp. 201, 205-06 (M.D. La. 1995) (find-
ing federal venue foreseen by clause providing for determination of
disputes "by a court [ ] located in the state where the project is
located").
If the forum selection clause is stated in terms of sovereignty, it is
more restrictive and requires that actions be filed in the courts of the
state sovereign, i.e., in the state court. Pullman, 477 F. Supp. at 442;
see LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d
4, 6-8 (1st Cir. 1984) (applying geographic versus sovereignty analy-
sis and concluding that requirement that actions be determined "in the
courts[ ] of the Commonwealth of Massachusetts" limited actions to
Massachusetts state courts); Rogen v. Memry Corp., 886 F. Supp. 393,
394 (S.D.N.Y. 1995) (specifying forum in "the legal tribunals of the
State of New York"); Spatz v. Nascone, 364 F. Supp. 967 (W.D. Pa.
1973) (requiring resolution in state court where forum selection
clause specified "courts of the Commonwealth of Pennsylvania"). But
see Action Corp. v. Toshiba Am. Consumers Prods. Inc., 975 F. Supp.
170, 176 (D.P.R. 1997) (holding that "Courts of the Commonwealth
of Puerto Rico" did not limit filings to non-federal courts); Zimmer-
man Metals, Inc. v. United Eng’rs & Constructors, Inc., 720 F. Supp.
4 FERRI CONTRACTING v. TOWN OF MASONTOWN
859, 861 (D. Colo. 1989) (allowing federal venue when clause pro-
vided for filing in "Courts of Colorado").
We conclude that the forum selection clause in the contract
between Ferri Contracting and the Town of Masontown is plainly
geographic. Providing that disputes be resolved in a court "within the
state" of West Virginia is not ambiguous—as the district court found
—and does not limit the parties to filing actions on the contract in a
court of the state of West Virginia. Because the district court erred in
determining that the language of the forum selection clause was
ambiguous, we vacate the district court’s order dismissing the claims
between these parties and remand the case for further proceedings.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED