Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2622

REX FORNARO,

Plaintiff, Appellant,

v.

RMC/RESOURCE MANAGEMENT COMPANY,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Lynch, and Howard, Circuit Judges.

Rex Fornaro, on brief pro se.

Eugene Sullivan, III, on brief for defendant, appellee.

October 6, 2006
Our resolution of this appeal does not require us to resolve 1

the request of Benjamin C. Riggs, Jr. that a sole proprietorship be

substituted as the appellee.

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Per Curiam. Rex Fornaro has appealed a district court

judgment dismissing his complaint on the basis of a forum selection

clause in a contract (hereinafter, the "Purchase Agreement"). "We

review a district court's dismissal based on a forum-selection

clause de novo." Silva v. Encyclopedia Britannica, Inc., 239 F.3d

385, 387 (1st Cir. 2001). Upon de novo review, we conclude that

the motion to dismiss was properly granted and we affirm.1

The forum selection clause stated, in relevant part:

Both parties agree that New

Hampshire law should, does, and will

control the interpretation of this

contract. The jurisdiction of any

lawsuits related to or arising out

of this contract will be in the

courts of Carroll County, New

Hampshire.

On appeal, Fornaro argues that the district court mistakenly

construed this forum selection clause as providing for exclusive

jurisdiction in the state courts located in Carroll County, New

Hampshire. However, unlike the example described in Stafford

Tech., Inc. v. Camcar Div. of Textron, Inc., 784 A.2d 1198, 1200-01

(N.H. 2001), on which Fornaro relies, the clause at issue in the

Purchase Agreement was not a simple permissive grant of authority

to the courts of Carroll County. Rather, the clause provided both

jurisdictional authority and venue. It stated that "[t]he
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jurisdiction of any lawsuits related to or arising out of this

contract will be in the courts of Carroll County, New Hampshire."

(Emphasis added).

In contrast to jurisdictional

authority, forum selection is

necessarily exclusive. In other

words, when parties agree that they

"will submit" their dispute to a

specified forum, they do so to the

exclusion of all other forums.

Summit Packaging Sys. Inc. v. Kenyon & Kenyon, 273 F.3d 9, 13 (1st

Cir. 2001). (This statement was made in a diversity case arising

out of New Hampshire, reviewing an arbitration clause that required

the parties to choose one of the named fora.)

Fornaro raises an additional argument. He argues that

the clause's reference to "courts" in the plural encompasses the

federal district court of New Hampshire because, says Fornaro, that

court "clearly has jurisdiction over matters in Carroll County, New

Hampshire." This is, at best, a strained way to describe the

federal court and one that we do not accept as a reasonable

interpretation. It is far more likely that the parties intended

the phrase "courts of Carroll County, New Hampshire" to mean the

courts that trace their origin to the state, i.e., the Carroll

County, New Hampshire state courts, of which there are the Carroll

County Superior Court and two District Courts (Northern Carroll

County District Court and Southern Carroll County District Court).

See LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d
For this reason, Fornaro's repeated reliance on the 2

magistrate judge's Order of April 12, 2004 is misplaced. That

Order, issued shortly after the case was filed, simply determined,

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4, 7 (1st Cir. 1984) (opining that the phrase "courts of

Massachusetts" was more likely to have been intended by the parties

to mean the courts that trace their origin to the state, i.e., the

Massachusetts state courts, rather than a reference to all the

courts physically within the state).

Finally, Fornaro rests on this court's own statement.

"We emphasize, however, that even a mandatory forum-selection

clause does not in fact divest a court of jurisdiction that it

otherwise retains." Silva, 239 F.3d at 388 n.6. But, the cases

cited in the remainder of footnote 6 in Silva actually reinforce

the result in the instant case. The district court was not

divested of its subject matter jurisdiction (based on diversity) as

a result of the forum selection clause. Rather, the forum

selection clause "merely constitutes a stipulation in which the

parties join in asking the court to give effect to their agreement

by declining to exercise its jurisdiction." LFC Lessors, 739 F.2d

at 6. As we stated, "'Exclusive jurisdiction' in this context thus

refers to the intent of the parties rather than the actual power of

the court." Silva, 239 F.3d at 388 n.6. And that, in fact, is

what the district court did in the instant case. It did not

dismiss Fornaro's complaint for lack of subject matter

jurisdiction. It declined to exercise jurisdiction and dismissed 2
based solely on the complaint, that the requisites for diversity

jurisdiction had been alleged, thus establishing, on a preliminary

review, the appearance of subject matter jurisdiction. The

district court's later dismissal based on the forum selection

clause did not conflict with any determination that subject matter

jurisdiction based on diversity existed.

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on the basis of the forum selection clause, thus giving effect to

the parties' agreement to litigate their dispute related to or

arising out of the Purchase Agreement in the state courts of

Carroll County, New Hampshire.

The district court judgment entered on October 15, 2004

is affirmed.