United States Court of Appeals

for the Fifth Circuit

No. 20-30187

Summary Calendar

PCL Civil Constructors, Incorporated, 

Plaintiff—Appellant,

versus

Arch Insurance Company, 

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:19-CV-491

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit 

Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

PCL Civil Constructors, Inc. (“PCL”) appeals a judgment of 

dismissal without prejudice based on forum non conveniens. The district court 

enforced a disputed forum selection clause requiring litigation in the 19th

Judicial District Court in and for the Parish of East Baton Rouge, Louisiana.

Because the forum selection clause is mandatory and enforceable, and 

because the appellant has waived any argument that public interest requires 

retention of this lawsuit in the federal court system, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

November 6, 2020

Lyle W. Cayce

Clerk

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I.

The disputed forum selection clause applies to the parties before the 

court by way of three contracts that incorporate each other’s terms: (1) the 

“Prime Contract”—a contract between PCL, a general contractor, and its 

client, the Louisiana Department of Transportation and Development 

(“DOTD”); (2) the “Subcontract”—a contract between PCL and a

subcontractor, Command Construction Industries, LLC (“Command”);

and (3) the “Bond”—a contract detailing the terms of a performance bond 

between Command and a surety company, Arch Insurance Company 

(“Arch”).

First, PCL entered into a contract with the Louisiana DOTD to 

perform work on a public works project (the “Prime Contract”). The Prime 

Contract enumerates a list of “Contract Documents” that are incorporated 

into the Prime Contract, including the Louisiana Standard Specifications for 

Roads and Bridges, 2006 Edition (the “2006 Standard Specifications”). 

Section 107.01 of the 2006 Standard Specifications provides the disputed 

forum selection clause: that “any litigation arising under or related to the 

contract or the bidding or award thereof shall be instituted in the 19th Judicial 

District Court in and for the Parish of East Baton Rouge, State of Louisiana.”

In turn, PCL, as general contractor, entered into a contract with 

subcontractor Command to perform certain work on the DOTD project (the 

“Subcontract”). The Subcontract incorporates the Uniform Special 

Conditions to Subcontract, and Article 1.1 of Uniform Special Conditions to 

Subcontract provides that all provisions of the Prime Contract are 

incorporated into the Subcontract: “The Prime Contract is incorporated 

herein by reference and made an integral part of the Subcontract.”

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Finally, in connection with its work on the DOTD project, Command 

provided a performance bond (the “Bond”) for $2,223,144.00 issued by 

Arch. The Bond names PCL as obligee and incorporates the Subcontract, 

providing that the “Subcontract is by reference made a part hereof.”

In short, the Bond incorporates the Subcontract in its entirety, which 

incorporates the Prime Contract in its entirety.

The instant dispute arose when, resting on diversity jurisdiction, PCL

sued Arch in the United States District Court for the Western District of 

Louisiana, alleging that Command had defaulted under the Subcontract and 

seeking payment under the Bond from Arch. Arch filed a motion to dismiss 

on the ground of forum non conveniens, arguing that any dispute must be 

brought in the 19th Judicial District Court in and for the Parish of East Baton 

Rouge, as provided in the Prime Contract. The district court granted Arch’s 

motion, and PCL appealed.

II.

Forum non conveniens is a doctrine under which a court may decline to 

exercise its jurisdiction and dismiss a case that is otherwise properly before it

so that the case can be adjudicated in another forum. Forum non conveniens is 

“the appropriate way to enforce a forum-selection clause pointing to a state 

or foreign forum.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of 

Texas, 571 U.S. 49, 60 (2013).

When reviewing forum non conveniens rulings involving forum 

selection clauses, “[w]e review de novo the district court’s conclusions that 

the [forum selection clause] was mandatory and enforceable.” Weber v. 

PACT XPP Techs., AG, 811 F.3d 758, 766 (5th Cir. 2016). Then, “[w]e 

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review for abuse of discretion the district court’s use of Atlantic Marine’s 

balancing test” of public-interest factors. Id.

A.

We first consider, de novo, whether the forum selection clause is 

mandatory or permissive. Id. at 768. A forum selection clause is mandatory 

if it “affirmatively requires that litigation arising from the contract be carried 

out in a given forum.” Id.

Here, the forum selection clause provides that “any litigation arising 

under or related to the contract or the bidding or award thereof shall be 

instituted in the 19th Judicial District Court in and for the Parish of East 

Baton Rouge, State of Louisiana” (emphasis added). Under Louisiana law,1

the word “shall” is routinely construed as mandatory. See, e.g., Bateman v. 

Louisiana Pub. Emps. Council No. 17 of Am. Fed’n of State, Cty. & Mun. Emps., 

AFL-CIO, 94-1951 (La. App. 4 Cir. 7/26/95); 660 So. 2d 80, 82 (affirming a 

trial court’s interpretation of the word “shall” as “mandatory” in a contract 

provision); cf. LA. STAT.ANN. § 1:3 (“The word ‘shall’is mandatory and the 

word ‘may’ is permissive.”); LA. CODE CIV. PROC. ANN. art. 5053 (same); 

LA. CODE CRIM. PROC. ANN. art. 5 (same). Accordingly, we find that the 

district court correctly held that the forum selection clause is mandatory. 

1 When interpreting the words in a forum selection clause, “[a] federal court sitting 

in diversity applies the forum state’s choice-of-law rules to determine which substantive 

law will apply.” Weber, 811 F.3d at 770. Here, we do not undertake a choice-of-law analysis 

because the parties do not appear to dispute that Louisiana law governs the interpretation 

of the contracts in this case.

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B.

We next consider, de novo, whether the forum selection clause is 

enforceable. Weber, 811 F.3d at 766. Federal law applies to determine the 

enforceability of forum selection clauses in diversity cases. All. Health Grp., 

LLC v. Bridging Health Options, LLC, 553 F.3d 397, 399 (5th Cir. 2008). 

Under federal law, the party resisting enforcement of a forum selection clause 

bears a “heavy burden of proof,” Ginter ex rel. Ballard v. Belcher, Prendergast 

& Laporte, 536 F.3d 439, 441 (5th Cir. 2008) (quoting Haynsworth v. 

Corporation, 121 F.3d 956, 963 (5th Cir. 1997)), and this court “applies a 

strong presumption in favor of the enforcement of mandatory [forum 

selection clauses],” Weber, 811 F.3d at 773. When “a litigant in federal court 

attempts to have a case dismissed based on a contractual provision requiring 

suit to be filed in state court, the forum-selection clause should be upheld 

unless the party opposing its enforcement can show that the clause is 

unreasonable.” Ginter, 536 F.3d at 441. A party may show the disputed 

clause is unreasonable if

(1) the incorporation of the forum selection clause into the 

agreement was the product of fraud or overreaching; (2) the 

party seeking to escape enforcement “will for all practical 

purposes be deprived of his day in court” because of the grave 

inconvenience or unfairness of the selected forum; (3) the 

fundamental unfairness of the chosen law will deprive the 

plaintiff of a remedy; or (4) enforcement of the forum selection 

clause would contravene a strong public policy of the forum 

state.

Haynsworth, 121 F.3d at 963 (citing Carnival Cruise Lines, Inc. v. Shute, 499 

U.S. 585, 595 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12–13, 

15, 18 (1972)). Here, PCL has not presented any argument that supports a 

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finding that the forum selection clause is unreasonable. The district court 

correctly held that the forum selection clause is enforceable.

C.

Finally, in a typical case involving a mandatory, enforceable forum 

selection clause, we would “review for abuse of discretion the district court’s 

use of Atlantic Marine’s balancing test” of public-interest factors. Weber, 811

F.3d at 766. However, PCL does not challenge the district court’s balancing 

of the public-interest factors and thus waives this argument on appeal. United 

States v. Young, 872 F.3d 742, 747 (5th Cir. 2017).

III.

PCL’s primary argument in the district court and on appeal is that the 

forum selection clause in Section 107.01 of the 2006 Standard Specifications

simply does not govern the instant suit. Specifically, PCL argues that the 

Bond does not incorporate the portion of the Prime Contract that contains 

the forum selection clause (Section 107.01 of the 2006 Standard 

Specifications), so the clause cannot govern the dispute between PCL and 

Arch. In response to this argument, the district court held that it is 

“unambiguously clear from the governing documents at issue that the Bond 

incorporates Section 107.01 through Plaintiff’s underlying Subcontract with 

Command, which thereby incorporates the Prime Contract itself.” Whether 

a contract is ambiguous, as well as the interpretation of an unambiguous 

contract, are questions of law that are reviewed de novo. Texas v. Am. Tobacco 

Co., 463 F.3d 399, 406 (5th Cir. 2006) (citing Stinnett v. Colorado Interstate 

Gas. Co., 227 F.3d 247, 254 (5th Cir.2000)).

It is a well established rule of contract law that “separate documents 

may be incorporated into a contract by attachment or reference thereto.” 

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Russellville Steel Co. v. A & R Excavating, Inc., 624 So. 2d 11, 13 (La. Ct. App. 

1993) (citing Action Fin. Corp. v. Nichols, 180 So. 2d 81, 83 (La. Ct. App. 

1965)). Here, the Bond specifically incorporates the Subcontract 

(“Subcontract is by reference made a part hereof”), which in turn 

specifically incorporates the Prime Contract (“The Prime Contract is 

incorporated herein by reference and made an integral part of the 

Subcontract.”). Indeed, as this court has previously recognized, “where a 

contract expressly refers to and incorporates another instrument in specific 

terms which show a clear intent to incorporate that instrument into the 

contract, both instruments are to be construed together.” One Beacon Ins. 

Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 267 (5th Cir. 2011). We find 

that the district court correctly held that the Bond incorporates the forum 

selection clause in Section 107.01 of the 2006 Standard Specifications.

Nevertheless, PCL argues that a forum selection clause in a different 

provision, Article 12.9.5 of the Uniform Special Conditions to Subcontract

(incorporated in the Subcontract), should govern this dispute rather than 

Section 107.01. Article 12.9.5 provides that “[a]ny mediation, arbitration or 

legal proceeding permitted hereunder shall be commenced and proceed in 

the county in which the Project is located, unless the parties agree in writing 

to a different location.” The district court rejected this argument, explaining 

that Article 12.9.5 “expressly states that it will not apply if the parties agree 

in writing to a different location, which the parties have plainly done as provided in Section 107.01.”

Under Louisiana contract law, “[e]ach provision in a contract must be 

interpreted in light of the other provisions so that each is given the meaning 

suggested by the contract as a whole.” LA.CIV.CODE ANN. art. 2050. As we 

determined above, the Bond fully incorporates the Subcontract, which fully 

incorporates the Prime Contract. Thus, we must read Section 107.01 together with Article 12.9.5. In doing so we agree with the district court’s 

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interpretation that, as contemplated by Article 12.9.5, the parties before the 

court, and as incorporated in the relevant governing documents, have 

“agreed in writing to a different location” for litigation: the 19th Judicial 

District Court in and for the Parish of East Baton Rouge, as provided in Section 107.01.

IV.

The forum selection clause contained in Section 107.01 of the 2006 

Standard Specifications governs the dispute at issue, is mandatory, and is enforceable. Appellant has waived any argument that public-interest factorsrequire retention of this suit in the federal court system. The district court’s 

dismissal without prejudice on the ground of forum non conveniens is AFFIRMED. 

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