Not For Publication in West's Federal Reporter Citation Limited Pursuan t to 1st C ir. Loc. R. 32.3 

# UnitedStates C ou rt o f App eals

For th e First C ircuit

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. E u g e n e Sullivan, III, on brief for defendant, appellee.

October 6, 2006Our 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. -2-

Per Curiam . Rex Fornaro has appealed a dis t r i c t court judgment dismissing his complaint on the basis of a forum selection clause in a contract (hereinafter, the "Purchase Agreement"). "We review a distri c t 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 ag r e e that New Hampshire law should, does, and will control the interp r e tation of this contract. The jurisdic t i o n of any lawsuits related to or arisi n gout of t h i s c o n t r a c t w i l l b e i n the courts of Carroll Coun t y , New Hampshire. On a p p eal, Fornaro argues that the district court mistakenly construed t h is forum selection clause as providing for exclusive jurisdiction in the state courts locat e din 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 rel i e s , 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 j u risdictional authority and v e n u e . I t s t a t e dt h a t " [ t ]he-3-

jurisdiction of any lawsuits related to or arising out of this contract will be inthe courts of Carroll County, New Hampshire." (Emphasis added).

In contrast to j urisdictional authori t y, forum selection is nec e s sarily exclusive. In other words, when parties agree that they "will submit" their dispu t e to a spec i f i e df o r u m , t h e yd o s o t o 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 addit i o n al argument. He argues that the clause's re f e r e n ce 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 wa y t o d e s cribe the federal court and one that we do not accept as a r e a s o n a b le 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.2dFor 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, -4- 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 re sts on this court's own statement. "We emphasize, however, that even a mandatory forum-selection clause does not in fact divest a court of jurisdict i o n 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 resu l t i n t h e i n s t a n t c a s e . T h e d i s t r i c t c o u r t w a s n ot 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 a t 3 8 8 n .6. And that, in fact, is what the district court did in the instant case. It did not di s m i s s F o r n a r o ' s c o mp l a i n t f o rl a c ko fs u b j e c t m a t t er jurisdiction. It declined to exercise jurisdiction and dismissed 2based s o l e l yon 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. -5- 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.