Many construction contracts contain a forum selection provision that requires disputes to brought in a particular jurisdiction. A mandatory forum selection provision will use words of exclusivity, like “shall,” that unequivocally requires disputes to be brought in that jurisdiction. On the other hand, a permissive forum selection provision will not use words of exclusivity meaning a dispute “may” be brought in that jurisdiction. Where to file a lawsuit is an initial, important consideration. (For a further discussion on how Florida deals with forum selection provisions, check this posting.)
Under the federal Miller Act, governed under federal law, lawsuits are to be brought in the district where the contract was to be performed and executed, i.e., typically where the project is located. 40 USC s. 3133. However, this does not mean that there is not a valid basis to sue in another jurisdiction, or move to transfer venue to another jurisdiction, such as when the underlying mandatory forum selection provision requires a jurisdiction different than the where the contract is to be performed or executed.
For example, in U.S. f/u/b/o John E. Kelly & Sons Electrical Construction, Inc. v. Hartford Fire Ins. Co., 2020 WL 704899 (D. Maryland 2020), a subcontractor filed a Miller Act payment bond lawsuit in Maryland against the prime contractor and prime contractor’s surety. The federal project was performed in Maryland which is why the lawsuit was filed in Maryland. The subcontract, however, required that lawsuits “shall be brought in Morgan County, Alabama.” The prime contractor and its Miller Act payment bond surety moved to transfer venue from Maryland to Alabama. The federal district court agreed to transfer venue finding that “as with any statutory venue provision [such as in the Miller Act], parties way waive its protections by agreeing to a mandatory forum selection provision.” U.S., supra, at *3.
Mandatory forum selection provisions are given signifiant weight because this is the forum that parties bargained for prior to the occurrence of any dispute. This is why examining forum selection provisions prior to filing a lawsuit is an initial, important consideration.
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