NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

In re: 1250 OCEANSIDE

PARTNERS, 

Debtor,

 1250 OCEANSIDE PARTNERS, a

Hawaii limited partnership, 

Plaintiff - Appellant,

 v.

MARYL GROUP, INC.; SUN KONA

FINANCE II, LLC, a Delaware limited

liability company; HOKULI’A

COMMUNITY ASSOCIATION, INC., a

Hawaii non-profit corporation;

HOKULI’A PARK AND CULTURAL

SITES ASSOCIATION, INC., a Hawaii

non-profit corporation; PAULETTE K.

KALEIKINI, as Trustee of the

No. 14-15146

D.C. No. 

1:13-cv-00613-LEK-KSC

MEMORANDUM*

FILED

JUN 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
No Ka Hilinai O Ialua

Irrevocable Trust; JOHN DOES,

1-50; JANE DOES, 1-50; DOE

CORPORATIONS, 1-50; DOE

PARTNERSHIPS, 1-50, 

Defendants - Appellees.

 

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Submitted June 17, 2016**

Honolulu, Hawaii

Before: THOMAS, Chief Judge and CALLAHAN and MURGUIA, Circuit Judges.

Plaintiff-Appellant 1250 Oceanside Partners appeals an order granting

Defendant-Appellee Maryl Group, Inc.’s motion to dismiss for improper venue. 

We reverse. Because the parties are familiar with the history of the case, we need

not recount it here.

The district court erred when it enforced a purported forum selection clause

in a land sale contract between the parties. That clause allowed Oceanside to

judicially foreclose on “property covered by the Mortgage” in the event of a

default by Maryl. Specifically and critically, the contract provided that Oceanside

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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“may seek to foreclose on the property . . . by a foreclosure action filed in the

Circuit Court of the Third Circuit, State of Hawaii[.]” That clause, the district

court held, prevented Oceanside from bringing a foreclosure action in Hawaii’s

federal bankruptcy court. 

We enforce only those forum selection clauses that “contain language that

clearly designates a forum as the exclusive one.” N. Cal. Dist. Council of Laborers

v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995). We found

such language lacking in Northern California District Council of Laborers and in

Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987). 

Those cases held permissive forum selection clauses that provided, respectively,

that an award “shall be enforceable by a petition” in a California state court, N.

Cal. Dist. Council of Laborers, 69 F.3d at 1036; and that California state courts

“shall have jurisdiction over the parties in any action,” Hunt Wesson, 817 F.2d at

76. 

However, we “have not treated the selection of a specific forum as exclusive

of all other fora, unless the parties have expressly stated that it was.” Reddam v.

KPMG LLP, 457 F.3d 1054, 1061 (9th Cir. 2006), abrogated on other grounds by

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007). Here, the

purported forum selection clause lacks language clearly designating Hawaii’s

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Third Circuit as the exclusive forum for Oceanside’s foreclosure. See Pelleport

Inv’rs, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 275 (9th Cir. 1984). 

Therefore, our case law dictates that it is not the exclusive forum. 

The district court’s contrary conclusion was error. Accordingly, we reverse. 

Given our resolution of the issues, we need not, and do not, reach any other issue

urged by the parties.

REVERSED.

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