UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1692

MONSTER DADDY, LLC,

Plaintiff - Appellee,

v.

MONSTER CABLE PRODUCTS, INCORPORATED,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. Henry M. Herlong, Jr., Senior 

District Judge. (6:06-cv-00293-HMH)

Argued: May 18, 2012 Decided: June 19, 2012

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the 

opinion, in which Judge Wynn and Judge Floyd joined.

ARGUED: Kirsten Elena Small, NEXSEN PRUET, LLC, Greenville, 

South Carolina, for Appellant. Peter Jester Gleekel, WINTHROP & 

WEINSTINE, PA, Minneapolis, Minnesota, for Appellee. ON BRIEF:

Sara Kanos, NEXSEN PRUET, LLC, Greenville, South Carolina; 

Robert Payne, Scott J. Allen, LARIVIERE, GRUBMAN & PAYNE, LLP, 

Monterey, California, for Appellant. Thomas H. Boyd, Bradley J. 

Walz, WINTHROP & WEINSTINE, PA, Minneapolis, Minnesota, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider a challenge to the district 

court’s award of attorneys’ fees to Monster Daddy, LLC (Monster 

Daddy), based on the court’s holding that Monster Cable 

Products, Inc. (Cable Products) breached a forum selection 

clause contained in a settlement agreement executed by the 

parties. Cable Products contends that the district court erred 

in summarily enforcing the forum selection clause, arguing that 

disputed factual questions remained regarding another alleged 

breach of the settlement agreement. Cable Products also argues 

that the language of the settlement agreement did not support 

the attorneys’ fee award. Upon our review, we affirm the 

district court’s decision awarding attorneys’ fees to Monster 

Daddy, because the forum selection clause was independently 

enforceable under the terms of the parties’ contract and Monster 

Daddy was a “prevailing party,” within the meaning of that 

contract term. 

I.

In 2006, Monster Daddy filed a declaratory judgment action 

against Cable Products in federal district court in South 

Carolina, seeking a declaration that Monster Daddy’s trademark 

rights in certain cleaners, waxes, and adhesives did not 

infringe Cable Products’ trademark rights in various electronic 
3

cables and their component parts. In 2007, after the parties 

entered into a settlement agreement (the settlement agreement), 

Monster Daddy dismissed its declaratory judgment action. 

Two provisions of the settlement agreement are material to 

our resolution of this appeal. First, the settlement agreement 

included a forum selection clause (the forum selection clause), 

which provided:

Choice of Law; Jurisdiction. This Agreement shall be 

governed by and construed in accordance with the laws 

of the United States and the State of South Carolina 

without regard to internal conflict of laws rules. 

The Parties agree that any claim asserted in any legal 

proceeding by one party against the other shall be 

commenced and maintained in the United States District 

Court for South Carolina or a South Carolina state 

court of competent jurisdiction. Any mutually agreed 

to alternative dispute resolution proceeding shall 

take place in Greenville, South Carolina.

(Emphasis added.) 

Second, the settlement agreement contained a provision 

allowing an award of attorneys’ fees and costs incurred by a 

prevailing party in enforcement of the agreement (the attorneys’ 

fees clause). This clause stated:

Attorney Fees and Costs. In the event of any breach 

of this Agreement, the prevailing party shall be 

entitled to recover not only the amount of any 

judgment which may be awarded in its favor but also 

all such other damages, costs and expenses that may be 

incurred by the party, including but not limited to 

court costs, reasonable attorneys’ fees, and all other 

reasonable costs and expenses.
4

In 2010, Monster Daddy filed an action against Cable 

Products in federal district court in South Carolina (the South 

Carolina action) asserting, among other things, that Cable 

Products breached the settlement agreement. In its answer, 

Cable Products alleged that Monster Daddy had committed a prior 

material breach of the settlement agreement by failing to abide 

by certain terms in Monster Daddy’s trademark applications and 

that, as a result of that prior breach, Cable Products was no 

longer bound by the settlement agreement. 

After Monster Daddy filed the South Carolina action, 

Monster Daddy learned that an affiliate of Cable Products was 

selling certain car cleaners and waxes which, according to 

Monster Daddy, constituted an intentional infringement of its 

trademark rights. Monster Daddy accordingly sought leave to 

amend its complaint in the South Carolina action to include a 

claim for intentional trademark infringement. Cable Products 

opposed Monster Daddy’s request to amend, and filed an action 

against Monster Daddy in federal district court in California 

seeking a declaratory judgment that the sales of the various car 

cleaners and waxes did not infringe Monster Daddy’s trademark 

rights (the California action). 

Monster Daddy thereafter filed in the South Carolina action 

a motion to amend its complaint to include a claim for 

intentional trademark infringement, and a motion to dismiss the 
5

California action or to enjoin Cable Products from proceeding in 

that action. The district court in South Carolina granted 

Monster Daddy’s motion to amend, but denied the motion to 

dismiss the California action citing the court’s lack of 

authority to dispose of a matter pending in another 

jurisdiction. However, the district court in South Carolina 

found that Cable Products’ tactic in filing the California 

action was “deceptive,” and agreed to consider the imposition of 

sanctions against Cable Products. 

When Cable Products failed to dismiss the California 

action, Monster Daddy retained counsel to file a motion in that 

action to transfer Cable Products’ claims to the district court 

in South Carolina. After Monster Daddy filed this motion, Cable 

Products voluntarily dismissed the California action. 

Monster Daddy later filed in the South Carolina action a 

motion to enforce the settlement agreement, arguing that Cable 

Products breached the forum selection clause by filing the 

California action. The district court agreed, and invited 

Monster Daddy to seek reimbursement of its attorneys’ fees 

incurred as a result of Cable Products’ breach of the forum 

selection clause. Monster Daddy later filed a motion requesting 

reimbursement of about $9,000 in attorneys’ fees. After Cable 

Products failed to respond to Monster Daddy’s motion, the 

district court awarded Monster Daddy the amount requested. 
6

Cable Products filed a timely notice of appeal from the district 

court’s award of attorneys’ fees. 

II.

Cable Products argues that the district court erred in 

summarily enforcing the settlement agreement, because there was 

an unresolved factual dispute at the time of the court’s 

decision regarding which party first breached the settlement 

agreement. Cable Products argues that if a court determines 

that Monster Daddy committed the first material breach of the 

settlement agreement, Cable Products would not have been 

required to perform its obligations under the settlement 

agreement, including the obligation imposed by the forum 

selection clause. 

Cable Products also challenges the district court’s award 

of attorneys’ fees on the grounds that: 1) Monster Daddy was not 

a “prevailing party” under the terms of the settlement 

agreement, because Cable Products voluntarily dismissed the 

California action; and 2) the attorneys’ fees incurred in the 

California action were beyond the scope of the settlement 

agreement’s enforcement provision. We address each argument in 

turn. 

Generally, we review under an abuse of discretion standard 

a district court’s decision to enforce a settlement agreement 
7

and to award attorneys’ fees. See Bosley v. Mineral Cnty. 

Comm’n, 650 F.3d 408, 411 (4th Cir. 2011) (attorneys’ fees); 

Hensley v. Alcon Labs., Inc., 277 F.3d 535, 541 (4th Cir. 2002) 

(enforcement of settlement agreement). However, we review a 

district court’s interpretation of the language of a settlement 

agreement, like a court’s interpretation of other contractual 

language, de novo. Nehi Bottling Co. v. All-American Bottling 

Corp., 8 F.3d 157, 162 (4th Cir. 1993). 

The parties agree that our interpretation of the settlement 

agreement is governed by South Carolina law. Under South 

Carolina law, the issue whether a contract is ambiguous, and the 

interpretation of an unambiguous contract, are questions of law 

decided by the court. S.C. Dep’t of Natural Res. v. Town of 

McClellanville, 550 S.E.2d 299, 302-03 (S.C. 2001). The 

language of a contract is ambiguous when its terms are 

susceptible to several reasonable interpretations. Id. at 302. 

In such cases, the court should consider the parties’ intent in 

determining the meaning of the language employed. Davis v. 

Davis, 641 S.E.2d 446, 452 (S.C. Ct. App. 2006).

When the language of a contract is unambiguous, however, a 

court’s only function is to interpret the contract’s lawful 

meaning and the intent of the parties as expressed in the 

contract’s terms. Miles v. Miles, 711 S.E.2d 880, 883 (S.C. 

2011). Thus, when contract language is unambiguous, the plain 
8

language of the contract determines its force and effect. 

McGill v. Moore, 672 S.E.2d 571, 574 (S.C. 2009). 

We begin by addressing Cable Products’ primary argument, 

that the district court was precluded from enforcing the forum 

selection clause of the settlement agreement, given the 

unresolved dispute regarding whether Monster Daddy committed a 

prior material breach of the agreement. In effect, Cable 

Products argues that so long as there remains an unresolved 

allegation that one party committed a prior material breach of a 

settlement agreement, the other provisions of that settlement 

agreement are unenforceable. We disagree with this argument. 

By including a forum selection clause in the settlement 

agreement, the parties implicitly recognized that disputes 

concerning the agreement could occur at a later date. The forum 

selection clause manifested the parties’ intent regarding the 

forums where any such future disputes would be resolved. See

Jumara v. State Farm Ins. Co., 55 F.3d 873, 880 (3d Cir. 1995). 

Because the forum selection clause was drafted to address the 

treatment of future alleged breaches, any claim that the clause 

became unenforceable as a result of such a breach is 

inconsistent with the very purpose of the clause. See Texas 

Source Group, Inc. v. CCH, Inc., 967 F. Supp. 234, 237 (S.D. 

Tex. 1997). 
9

Moreover, if we were to accept Cable Products’ argument, 

parties could readily shirk their contractual obligation to 

resolve disputes in a particular forum. A mere allegation that 

the nonmoving party committed a prior material breach of the 

contract would allow a party to litigate that alleged 

contractual breach in an unapproved forum until the issue of 

first breach ultimately was resolved. This ability to undermine 

the enforcement of forum selection clauses counsels strongly 

against the adoption of Cable Products’ argument. See id. 

Additionally, Cable Products’ reliance on the prior 

material breach doctrine is misplaced. This doctrine only 

excuses a non-breaching party’s performance when such 

obligations were dependent upon the promises that the breaching 

party failed to perform. See Restatement (Second) of Contracts 

§ 237 cmt. e (1981). Thus, a party’s breach of one promise does 

not discharge the non-breaching party’s duties with respect to 

unrelated or independent promises to perform under the parties’ 

contract. Id.; see also 14 Williston on Contracts § 43:1 (4th 

ed. 2012).

Here, performance under the forum selection clause was not 

dependent upon the performance of any other contract provision 

contained in the settlement agreement. In fact, the unambiguous 

language of the forum selection clause does not mention any 

other term, clause, or obligation in the settlement agreement. 
10

Thus, adoption of Cable Products’ reasoning impermissibly would 

result in rendering an independent and unambiguous provision in 

the parties’ contract meaningless, in violation of South 

Carolina law. See Schulmeyer v. State Farm Fire & Cas. Co., 579 

S.E.2d 132, 134 (S.C. 2003) (a contract’s unambiguous language 

determines its force and effect); Valley Pub. Serv. Auth. v. 

Beech Island Rural Cmty. Dist., 462 S.E.2d 296, 299 (S.C. Ct. 

App. 1995) (each term in a contract “must be considered and 

given effect if possible”). Accordingly, because the forum 

selection clause was an independent promise bearing no 

relationship to the alleged prior material breach, the “first 

material breach” doctrine was inapplicable as a defense in this 

case. See 14 Williston on Contracts § 43:1. 

We also observe that Cable Products’ argument is undermined 

by its position concerning the applicable law governing the 

settlement agreement. Under Cable Products’ reasoning, the 

choice of law clause, which is contained in the same paragraph 

as the forum selection clause, likewise would not be enforceable 

as a result of the unresolved allegations of prior material 

breach. Yet Cable Products agrees that South Carolina law 

governs the interpretation of the settlement agreement, as 

plainly stated by the choice of law clause. There is no 

principled basis, however, for distinguishing between the choice 

of law clause and the forum selection clause contained in the 
11

same paragraph of the settlement agreement. Thus, to permit 

such a distinction effectively would sanction Cable Products’ 

attempt to pick and choose which portions of the settlement 

agreement remain enforceable.

Next, we conclude that Cable Products committed a breach of 

the forum selection clause by filing the California action. The 

forum selection clause unambiguously provides that “any claim 

asserted in any legal proceeding by one party against the other

shall be commenced and maintained in the United States District 

Court for South Carolina or a South Carolina state court of 

competent jurisdiction.” (Emphasis added.) In disregard of 

this provision, Cable Products filed the California action 

against Monster Daddy. Because the California action involved a 

claim that was “commenced and maintained” in a legal proceeding 

by one party to the settlement agreement, Cable Products, 

against the other party to that agreement, Monster Daddy, we 

conclude that Cable Products plainly breached the settlement 

agreement in this respect.*

 See McGill, 672 S.E.2d at 574.

 * Cable Products also argued before the district court that 

it did not breach the settlement agreement because the issues 

raised in the California action fell outside the scope of the 

settlement agreement, and because additional parties were named 

in the California action that were not signatories to the 

settlement agreement. However, by failing to present these 

arguments in its briefs before this Court, Cable Products has 

waived them. United States v. Powell, 666 F.3d 180, 185 n.4 

(4th Cir. 2011). 
12

We now turn to consider Cable Products’ contention that the 

settlement agreement did not support the district court’s award 

of attorneys’ fees because Monster Daddy was not a “prevailing 

party,” within the meaning of the attorneys’ fees clause. 

According to Cable Products, its voluntary dismissal of the 

California action did not affect the legal relationship between 

the parties because there still was a possibility of future 

litigation of the merits of those dismissed claims. We disagree 

with Cable Products’ argument. 

The award of attorneys’ fees incurred by Monster Daddy in 

the California action was permitted under the plain language of 

the attorneys’ fees clause. See McGill, 672 S.E.2d at 574. 

That clause provided, in relevant part, that “[i]n the event of 

any breach of this Agreement, the prevailing party shall be 

entitled to recover” attorneys’ fees. (Emphasis added.) As 

stated above, Cable Products breached the forum selection clause 

in the settlement agreement by filing the California action, and 

the district court based its decision to award attorneys’ fees 

on that ground, finding that Cable Products’ “filing of [the 

California action] was in violation of the settlement 

agreement.” Therefore, Monster Daddy was the “prevailing party” 

with respect to Cable Products’ breach of the forum selection 

clause of the settlement agreement. See McGill, 672 S.E.2d at 

574. 
13

Cable Products’ argument incorrectly presumes that, to be a 

“prevailing party,” Monster Daddy was required to prevail in the 

California action on the merits of the claims asserted in that 

case. However, an award under the attorneys’ fees clause may be 

made whenever a party prevails with respect to a particular 

breach of the settlement agreement, which in this case was Cable 

Products’ filing of the California action. Thus, to qualify as 

a “prevailing party” with respect to the breach of the forum 

selection clause, Monster Daddy did not need to prevail on the 

merits of the California action.

Finally, we address Cable Products’ argument that the 

district court erred in awarding to Monster Daddy its attorneys’ 

fees incurred in the California action. According to Cable 

Products, the district court was entitled only to award 

attorneys’ fees incurred in South Carolina in connection with 

the motion to enforce the settlement agreement. We disagree. 

The settlement agreement broadly provides that “[i]n the 

event of any breach . . . the prevailing party shall be entitled 

to recover not only the amount of any judgment which may be 

awarded in its favor but also all such other damages, costs and 

expenses that may be incurred by the party, including but not 

limited to court costs, reasonable attorneys’ fees, and all 

other reasonable costs and expenses.” (Emphasis added.) We 

already have held that by filing the California action, Cable 
14

Products breached the forum selection clause, and that Monster 

Daddy was the prevailing party when the district court granted 

the motion to enforce. Thus, based on Cable Products’ breach, 

Monster Daddy was entitled to recover “all such other damages, 

costs and expenses [] incurred by” Monster Daddy, which included 

but were not limited to “reasonable attorneys’ fees” under this 

clause. 

To the extent that the attorneys’ fees clause required that 

such costs and expenses relate to the opposing party’s breach of 

the settlement agreement, we conclude that this nexus was 

satisfied here. The attorneys’ fees incurred by Monster Daddy 

in filing its motion to transfer in the California action, like 

those incurred in filing its motion to enforce the settlement 

agreement in the South Carolina action, resulted from Cable 

Products’ breach of the forum selection clause. Moreover, both 

actions were reasonable measures taken by Monster Daddy to 

preserve its contractual right to litigate in its chosen forum. 

Therefore, the district court did not err in including in its 

attorneys’ fee award the time expended by counsel for Monster 

Daddy in responding to the California action. 

 
15

III.

For these reasons, we affirm the district court’s award of 

attorneys’ fees to Monster Daddy.

AFFIRMED