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Does the Defendant Get to Pick the Forum?

Often times the issue of where the litigation will occur becomes a highly contested issue in a civil litigation case. In order to gain any available advantage, a party to a contract will at times insist on a forum selection clause. A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum.

The forum selection clause may be drafted to provide that mediation or the actual trial will take place in the forum of the defendant’s choosing. When such clauses are at issue the question arises as to whether the defendant gets to pick the forum.

In the case of Lopez v. United Capital Fund, LLC, 88 So.3d 421 (Fla. 4th DCA 2012), the Fourth District Court of Appeals of Florida held that an unspecific forum selection clause that provided for mediation and trial of any claim in the county and state of the defendant’s choice was too overbroad. The court held that such a clause was lacking in specificity and that if failed to provide adequate indicia of the parties’ intent.

In their analysis, the Court of Appeals distinguished overbroad clauses from floating forum clauses that refer to a fixed geographical place name, designates the forum by reference of mutable facts, which include the party’s main office, headquarters, and principle place of business. The court noted that unlike floating forum selection clauses which eliminate forum uncertainty by providing criteria, an overbroad clause provides no such standards and is left to the defendant’s choice.

Thus, in analyzing whether a defendant can pick the forum the answer is, it depends. The issue should be analyzed on a case by case basis and said analysis should be based on the specificity of the clause itself. Where a clause is overbroad and lacks specificity an opposing party may challenge the binding effect and will likely be successful.

In the event you have a question or would like more information regarding a Florida personal injury case or an insurance dispute we invite you to contact Robert Sparks Attorneys, PLLC for a free consultation.

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