Enerwaste International Corpor v. Energo Srl

FILED
NOT FOR PUBLICATION MAR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENERWASTE INTERNATIONAL No. 10-35524
CORPORATION, a Washington
corporation, D.C. No. 2:09-cv-00950-TSZ
Plaintiff - Appellant,
MEMORANDUM*
v.
ENERGO SRL, an Italian company,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Submitted March 8, 2011**
Seattle, Washington
Before: McKEOWN, FISHER and GOULD, Circuit Judges.
EnerWaste International Corp. appeals from the district court’s order
declaring the parties’ forum selection clause unenforceable and dismissing the
action on the basis of forum non conveniens. We reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The forum selection clause is not ambiguous, because any reasonable person
would understand it to designate the United States District Court for the Western
District of Washington as the exclusive forum for resolving disputes arising from
the contract. See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081-82 (9th Cir. 2009) (per
curiam).
Nor is the clause unenforceable on the basis of unreasonableness. Although
most of the witnesses and evidence are located in Italy, Energo has not shown that
proceeding in Washington would be “so gravely difficult and inconvenient” that it
would effectively be denied its day in court. M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 18 (1972). The district court abused its discretion by holding
otherwise. See Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d
273, 280-81 & n.4 (9th Cir. 1984).
The forum selection clause being enforceable, the forum non conveniens
doctrine does not apply, see id. at 281, and EnerWaste is entitled to proceed in the
Western District of Washington.
REVERSED AND REMANDED.
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