United States Court of Appeals

for the Fifth Circuit

____________

No. 21-50431

____________

S. Christopher Ney, 

Plaintiff—Appellant,

versus

3i Group, P.L.C.; 3i Corporation, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:20-CV-1142

______________________________

Before Barksdale, Stewart, and Dennis, Circuit Judges.

Per Curiam:

*

In March 2019, New Amsterdam Software Holdings acquired 

Magnitude Software Inc. (“Magnitude”) for $340 million following an 

extensive bidding process. Christopher Ney, the CEO of Magnitude, was an 

integral part of these negotiations. Ney alleges that during these negotiations 

the president of New Amsterdam Software Holdings, Andrew Olinick, 

promised Ney a $20 million “kicker” in exchange for Ney’s support of the

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

September 19, 2023

Lyle W. Cayce

Clerk

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2019 sale of Magnitude. Ney filed suit to enforce this alleged oral contract, 

and the district court dismissed his claim for forum non conveniens pursuant 

to a valid forum-selection clause. Ney appeals this dismissal. For the reasons 

given below, we AFFIRM.

I. 

Plaintiff-Appellant Christopher Ney, a Texas citizen, co-founded 

Magnitude, an Austin-based software firm. Ney also served as the CEO of 

Magnitude. In 2018, Magnitude entered negotiations with several private equity funds and investment companies concerning a potential sale of the company. One of those potential buyers was Defendant-Appellee 3i Group, an 

international private equity group organized in England and Wales with its 

principal place of business in London. During these negotiations Ney communicated primarily with Andrew Olinick, who held himself out as a 3i Group 

partner, co-head of North American Private Equity, and Global Head of Business and Technology, but who now claims to have been acting on behalf of a 

related corporation, 3i Corporation. Because of this, Ney brings his claims 

against both 3i Group and 3i Corporation (referred to collectively as the “3i 

Defendants”).1

Ney alleges he negotiated with the 3i Defendants regarding a potential 

sale throughout 2018 and 2019. During these negotiations, Olinick repeatedly 

pressed Ney to put the 3i Defendants at the “front of the line.” Olinick told 

_____________________

1 We note that the district court found that “the exact relationship between 3i 

Corporation, 3i Group, and New Amsterdam is opaque.” The 3i Defendants’ brief clarifies 

this relationship. The 3i Defendants did not directly purchase Magnitude. Rather, New 

Amsterdam Software Holdings purchased Magnitude, and New Amsterdam Software 

Holdings’ general partner is New Amsterdam Software GP LLC. 3i Group is a Britishprivate equity firm that was one of New Amsterdam Software Holdings’ indirect investors. 

3i Corporation is an investment advisory company for 3i Group incorporated in 

Massachusetts with its principal place of business in New York. 

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Ney that although the 3i Defendants “had previously committed to a firm 

purchase price of $360 million, 3i Group’s investment committee now could 

only get to a $340 million purchase price.” Ney responded that $340 million 

was unacceptable.

In light of Ney’s rejection of a $340 million purchase price, Ney claims 

that Olinick proposed an oral contract. Olinick suggested that a $20 million 

“kicker” be paid to Ney. Specifically, Olinick promised that 3i Group would 

pay Ney $20 million if Ney (i) worked to keep 3i Group at the “front of the 

line” in the acquisition negotiations, (ii) got the deal done, and (iii) stayed on 

as CEO of Magnitude during the post-acquisition period. Ney claims that he 

accepted the 3i Defendants’ offer and pushed the negotiations to a successful 

close, stayed on as Magnitude’s CEO, rolled $6 million back into Magnitude, 

and successfully transitioned the company post-closing.

In March 2019, New Amsterdam Software Holdings purchased Magnitude for $340 million. This sale, as well as Ney’s compensation with respect to it, is governed by various interlocking written contracts, namely: the 

Stock Purchase Agreement (“the Purchase Agreement”), the Restrictive 

Covenant Agreement, two Incentive Unit Grant Agreements, a Rollover 

Contribution and Subscription Agreement (“the Rollover Agreement”), 

which is Exhibit B to the Purchase Agreement, and two organizational agreements. All of the agreements are either dated March 18, 2019, or May 2, 2019. 

The primary agreement depicting the terms of the Magnitude sale is 

the Purchase Agreement. Signed by Olinick and Timothy Mack as President 

of Magnitude, this agreement, like the other six ancillary agreements, notes 

that all seven agreements constitute “the complete agreement by, between 

and among the parties.” Additionally, the Purchase Agreement contains a 

forum-selection clause:

[E]ach of the parties to this Agreement hereby irrevocably . . . 

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submits to the exclusive jurisdiction of the Court of Chancery 

of the State of Delaware (or if such court lacks jurisdiction, any 

other state or federal court sitting in the State of Delaware) in 

respect of any litigation, action or proceeding . . . arising out of 

or relating to this Agreement, the negotiation, execution or 

performance of this agreement or the transactions 

contemplated hereby. 

The Purchase Agreement attached the Rollover Agreement as Exhibit 

B. In the Rollover Agreement, Ney agreed to rollover into the new 

organization his “Company Shares with a dollar value equal to $6,000,000” 

in exchange for partnership interests in New Amsterdam Software Holdings. 

Within the Rollover Agreement, the parties agreed to “submit to the 

exclusive jurisdiction” of courts in Delaware “in respect of the interpretation 

and enforcement of the provisions of this agreement and any related 

agreement, certificate or other document delivered in connection herewith.” 

They also agreed that “[t]his Agreement and the agreements and documents 

referred to herein contain the complete agreement among the parties hereto 

and supersede any prior understandings, agreements or representations by or 

among the parties hereto, written or oral, that may have related to the subject 

matter hereof in any way.” This agreement was signed by Olinick and Ney. 

On July 7, 2020, eighteen months after the sale was completed, Ney 

was terminated as CEO. Ney claims that the 3i Defendants have breached the

oral agreement by failing to pay him the agreed upon $20 million. In 

response, the 3i Defendants contend that the alleged oral contract was never 

made.

II. 

To recover damages under the alleged oral contract, Ney filed suit in 

a Texas state court against New Amsterdam Software Holdings and New 

Amsterdam Software GP LLC (collectively the “New Amsterdam

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entities”), and 3i Group. The New Amsterdam entities moved to dismiss 

based on forum-selection clauses in the written contracts that unambiguously 

provided Delaware as the exclusive forum for resolving disputes relating to 

the Magnitude negotiation and purchase. Although the New Amsterdam entities noted in their motion to dismiss that the written contracts would likewise prohibit claims against 3i Group, 3i Group was not subject to the motion 

to dismiss for failure to comply with the forum-selection clause because 3i 

Group had filed a contemporaneous Special Appearance challenging the 

Texas court’s jurisdiction. The Texas state court granted the New Amsterdam entities’ motion to dismiss on the basis of the forum-selection clauses. 

The only defendant that remained was 3i Group.

Following the state court’s dismissal of the New Amsterdam entities, 

Ney amended his state court petition to add 3i Corporation as an additional 

defendant, bringing the total number of defendants to two: 3i Group and 3i 

Corporation. Ney contended that he was owed $20 million under the oral 

contract and asserted breach of contract, promissory estoppel, and unjust enrichment/quantum meruit claims against the 3i Defendants. After removal

to federal court based on diversity, the 3i Defendants filed their motion to 

dismiss arguing that Ney’s claims should be dismissed because (i) his pleadings failed to state a claim under Rule 12(b)(6), (ii) venue was improper given 

the various written agreements’ forum-selection clauses under Rule 12(b)(3), 

and (iii) the court lacked personal jurisdiction over 3i Group. 

The magistrate court granted the 3i Defendants leave to file a 

supplemental motion to raise the forum-selection clause argument in a forum 

non conveniens posture rather than under Rule 12(b)(3). After holding oral 

argument, the magistrate court issued a Report & Recommendation 

(“R&R”) that recommended granting the 3i Defendants’ supplemental 

motion to dismiss based on forum-selection clauses in two written 

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agreements: the Purchase Agreement and the Rollover Agreement. Ney filed 

objections to the R&R with the district court. The district court accepted and 

adopted the R&R, dismissing the case without prejudice pursuant to the 

forum-selection clauses in both the Purchase Agreement and the Rollover 

Agreement. Ney appeals to this Court. 

III. 

We review the district court’s interpretation of a forum-selection 

clause and its assessment of that clause’s enforceability de novo and the 

district court’s balancing of the public and private interest factors for abuse 

of discretion. Weber v. PACT XPP Techs., AG, 811 F.3d 758, 768 (5th Cir. 

2016). 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).

IV.

As an initial matter, Ney argues that the district court should not have 

considered the Purchase Agreement or the Rollover Agreement—both of 

which were attached to the 3i Defendants’ motion—because Ney did not 

reference those agreements in his state court petition, nor are the agreements 

central to Ney’s claims.2 Ney acknowledges, however, that “[o]n a 

traditional forum non conveniens motion, it is within a district court’s 

discretion to consider matters outside the pleadings,” and that “weighing 

_____________________

2 There is a potential preservation issue with this argument. In his objections to the 

magistrate court’s R&R, Ney included a footnote alleging it was improper for the court to 

consider the Purchase Agreement and the Rollover Agreement in deciding the motion to 

dismiss. The Fifth Circuit has stated that “[a]rguments subordinated in a footnote are 

‘insufficiently addressed in the body of the brief,’ and thus are waived.” Arbuckle Mountain 

Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 339 n.4 (5th Cir. 2016). Because 

Ney’s argument was buried in a footnote, this likely precludes our review. Nevertheless, as 

explained in the body of this opinion, Ney’s objection fails on the merits.

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private and public interest factors will invariably require the district court to 

wade beyond the pleadings to consider, for example, administrative 

difficulties flowing from court congestion or the ease of access to sources of 

proof.” 

We find that when evaluating a motion to dismiss based on a forumselection clause, a court may consider matters outside the pleadings. As the 

R&R explains, and as Ney himself concedes, other courts resolving forum non 

conveniens motions based on forum-selection clauses have held that one may

consider facts outside of the pleadings. Color Switch LLC v. Fortafy Games 

DMCC, 377 F. Supp. 3d 1075, 1082–83 (E.D. Cal. 2019), aff’d, 818 F. App’x 

694 (9th Cir. 2020); Jiangsu Hongyuan Pharm. Co. v. DI Glob. Logistics Inc., 

159 F. Supp. 3d 1316, 1322 (S.D. Fla. 2016); Turner v. Costa Crociere S.P.A., 

488 F. Supp. 3d 1240, 1245–46 (S.D. Fla. 2020) (“When ruling on a motion 

to dismiss for forum non conveniens, a court may consider matters outside 

the pleadings if presented in proper form by the parties.”). In this case, the 

Rollover Agreement and the Purchase Agreement are central to Ney’s

petition, as the amended petition repeatedly references and relies on the 

purchase, the closing, and the completion of the Magnitude sale. It was 

within the district court’s discretion to consider matters outside the 

pleadings in deciding the 3i Defendants’ motion to dismiss, and it did not err 

in considering either the Purchase Agreement or the Rollover Agreement.

Ney next argues that the district court erred in concluding that the

Rollover Agreement’s forum-selection clause binds Ney, because (1) Ney’s

claims do not seek the interpretation and enforcement of any of the Rollover

Agreement’s provisions, (2) Ney’s claims do not seek the interpretation or

enforcement of a related agreement or other document delivered in

connection with the Rollover Agreement, and (3) the Rollover Agreement’s

forum-selection clause does not cover Ney’s equitable claims.

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The Supreme Court has held that a valid forum-selection clause is 

entitled to “controlling weight in all but the most exceptional cases.” Atlantic 

Marine Construction Company v. United States District Court for the Western 

District of Texas, 571 U.S. 49, 63 (2013). Under Atlantic Marine, a court must 

determine whether (i) “the forum-selection clause is mandatory or 

permissive,” (ii) “the forum-selection clause is enforceable,” and (iii) 

“‘Atlantic Marine’s balancing test’ of public interest factors” supports 

dismissal. PCL Civ. Constructors, Inc. v. Arch Ins. Co., 979 F.3d 1070, 1073–

74 (5th Cir. 2020) (quoting Weber, 811 F.3d at 766).

Ney does not dispute that the Rollover Agreement’s forum-selection 

clause is mandatory. The forum-selection clause clearly provides for

Delaware as the “exclusive forum” for any litigation arising out of the

interpretation or enforcement of the Rollover Agreement and any related

agreement’s provisions. PCL, 979 F.3d at 1073 (quoting Weber, 811 F.3d 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.”). Atlantic

Marine’s first prong is met.

The Rollover Agreement’s forum-selection clause is also enforceable,

especially in light of the “‘strong presumption’ in favor of enforcing

mandatory forum selection clauses.” Al Copeland Invs., LLC v. First Specialty

Ins. Corp., 884 F.3d 540, 543 (5th Cir. 2018). Ney argues that his claims do

not seek the interpretation and enforcement of any of the Rollover

Agreement’s provisions, and thus the forum-selection clause does not

encompass his claims. Ney’s argument, however, belies the plain text of the

clause, which says that the parties agree to litigate in Delaware “in respect of 

the interpretation and enforcement of the provisions of this agreement and 

any related agreement, certificate or other document delivered in connection 

herewith.” The forum-selection clause applies to any litigation “in respect 

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of the interpretation” of any provision of the agreement. The Supreme Court 

has held that the term “respecting” means the same thing as “relating to,” 

and thus covers any case in which a court will have to interpret any provision 

of the Rollover Agreement as part of its merits analysis, as it would here.

Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760 (2018) (“Use 

of the word ‘respecting’ in a legal context generally has a broadening effect, 

ensuring that the scope of a provision covers not only its subject but also 

matters relating to that subject.”). 

Additionally, the Rollover Agreement contains a merger clause which 

provides that the “[Rollover] Agreement and the agreements and documents 

referred to herein contain the complete agreement among the parties hereto 

and supersede any prior understandings, agreements or representations by or 

among the parties hereto, written or oral, that may have related to the subject 

matter hereof in any way.” This merger clause is expansive and clearly 

encompasses Ney’s alleged oral contract. Further, the provisions of the 

Rollover Agreement are relevant to Ney’s claims because, as the district 

court correctly concluded, the Rollover Agreement memorialized Ney’s 

alleged oral promise to “‘roll’ $6 million of Ney’s own money back into 

Magnitude.” Ultimately, we find that the subject matter of Ney’s lawsuit is 

intertwined with and implicates the subject matter of the Rollover

Agreement, and thus, the forum-selection clause within the Rollover

Agreement is enforceable.

The district court also discussed how, although Ney is an “undisputed

signatory to the Rollover agreement,” the 3i Defendants are non–signatories.

The district court went on to correctly hold that “the 3i Defendants were so

closely related to New Amsterdam Software Holdings that they were

permitted to negotiate the underlying agreements,” and thus that they were

permitted to enforce the forum-selection clause against Ney. Magi XXI, Inc.

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v. Stato della Città del Vaticano, 714 F.3d 714, 723 (2d Cir. 2013) (“We hold

that a non-signatory to a contract containing a forum selection clause may

enforce the forum selection clause against a signatory when the non-signatory

is ‘closely related’ to another signatory.”). Regardless, Ney does not raise on

appeal the issue of whether the 3i Defendants, as “closely related” entities,

can enforce the Rollover Agreement as non–signatories. Ney has forfeited

this issue on appeal.

Because the Rollover Agreement’s forum-selection clause is both

mandatory and enforceable, Atlantic Marine’s private-interest factors

“strongly favor dismissal without prejudice.” Weber, 811 F.3d at 775 (“The

only remaining question is whether this is one of the rare cases in which the

public-interest FNC factors favor keeping a case despite the existence of a

valid and enforceable FSC.”). We must now “review for abuse of discretion

the district court’s use of Atlantic Marine’s balancing test” of public-interest

factors. Id. at 766. Having done so, we find no abuse of discretion. This is not

one of those extraordinary cases where the public-interest factors can

outweigh a mandatory and enforceable forum-selection clause. Atlantic 

Marine, 571 U.S. at 62 (“Only under extraordinary circumstances unrelated

to the convenience of the parties should a § 1404(a) motion be denied.”);

Weber, 811 F.3d at 767 (“Cases in which the public-interest factors are

sufficiently strong to outweigh a valid FSC ‘will not be common.’”).

Asthe forum-selection clause in the Rollover Agreement is mandatory

and enforceable, we need not address whether Ney’s case falls within the

Purchase Agreement’s forum-selection clause. The district court’s dismissal

for forum non conveniens is AFFIRMED.

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