[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13849

____________________

AFC FRANCHISING, LLC, 

Plaintiff-Appellant,

versus

DANILO PURUGGANAN, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:20-cv-00456-JHE

____________________

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2 Opinion of the Court 20-13849

Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court.

TJOFLAT, Circuit Judge, filed a concurring opinion.

NEWSOM, Circuit Judge:

In this case, we must decide whether Danilo Purugganan 

consented to personal jurisdiction and venue in the Northern District of Alabama by agreeing to a “floating” forum-selection clause. 

We hold that, in the circumstances presented, the clause is applicable and enforceable. Accordingly, we reverse the district court’s 

contrary decision and remand for further proceedings.

I 

AFC Franchising is an Alabama LLC with its principal place 

of business in Shelby County, Alabama. Purugganan is a resident 

of New York. In 2009, Purugganan signed a “Master Developer 

Agreement” with another company, Doctors Express Franchising, 

to develop urgent-care centersin New York and Connecticut. Doctors Express was an LLC with its principal place of business in Maryland, and the parties agreed that the contract would be governed 

by Maryland law.

After a series of acquisitions, AFC was assigned Doctors Express’s end of the bargain in 2013, and Purugganan was notified of 

the assignment. It is undisputed that this assignment was permissible. Indeed, the Master Developer Agreement expressly authorized Doctors Express to “change [its] ownership or form and/or 

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assign th[e] Agreement and any other agreement to a third party 

without restriction.” Doc. 1-2 at 17. 

As particularly relevant here, the Master Developer Agreement—which Doctors Express drafted—contains the following forum-selection provision:

You and your owners agree that all actions arising under this Agreement or otherwise as a result of the relationship between you and us must be commenced 

in a state or federal court of competent jurisdiction 

within such state or judicial district in which we have 

our principal place of business at the time the action 

is commenced, and you (and each owner) irrevocably 

submit to the jurisdiction of those courts and waive 

any objection you (or the owner) might have to either 

the jurisdiction of or venue in those courts.

Id. at 26 (emphasis added). This is known as a “floating” forumselection clause because it ties the chosen forum to a mutable 

fact—here, the franchisor’s principal place of business. See Dale 

Joseph Gilsinger, Enforceability of Floating Forum Selection 

Clauses, 39 A.L.R.6th 629 § 2 (2008) (“A ‘floating’ forum selection 

clause is defined as a clause which, rather than designating a forum 

by immutable geographical place name, designates the exclusive 

forum for all litigation regarding the agreement . . . by reference to 

mutable facts . . . .”).

When the parties’ relationship soured, Purugganan threatened to sue AFC in either Connecticut or New York. AFC believed 

that the floating forum-selection clause required Purugganan to 

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4 Opinion of the Court 20-13849

sue in Alabama, where AFC had its principal place of business. It 

thus sought a declaratory judgment in Alabama state court (1) that 

the parties had to litigate their dispute in Alabama and (2) that AFC 

hadn’t breached the Master Developer Agreement.

Purugganan removed the action to the United States District 

Court for the Northern District of Alabama, and the parties agreed 

to have the case decided by a magistrate judge. See 28 U.S.C. 

§ 636(c). Purugganan then moved to dismiss for lack of personal 

jurisdiction and improper venue. In the alternative, Purugganan 

asked the magistrate judge—who, given the parties’ consent, acted 

on behalf of the district court—to transfer this case to Connecticut, 

where he has since sued AFC.

The district court sided with Purugganan on the personaljurisdiction issue. First, it concluded that Purugganan lacked “minimum contacts” with Alabama. Second, and more importantly for 

present purposes, the court held that Purugganan hadn’t contractually waived his personal-jurisdiction defense by agreeing to the 

forum-selection provision. Even though AFC took over as Doctors 

Express’s assignee and had its principal place of business in Alabama, the court reasoned, there was “no reference to assignees in 

the Master Develop[er] Agreement’s forum selection clause.” 

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Accordingly, the district court granted Purugganan’s motion to dismiss. AFC timely appealed.1

II 

We begin our analysis from a place of relative agreement 

between the parties—what law to apply. We then turn to the merits of the personal-jurisdiction dispute. 

A 

It is well settled that state law governs issues of contract interpretation that arise in a diversity action. See, e.g., Fernandez v. 

Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). Here, 

the Master Developer Agreement provides that the contract and all 

claims arising from it are “governed by the laws of the State of Maryland.” Doc. 1-2 at 26. Neither party disputes the applicability of 

that choice-of-law clause. So we will apply Maryland law in our 

interpretation of the agreement.

The next question is whether state or federal law governs 

the enforceability of the forum-selection clause. See Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 71 (1938). “When deciding to apply federal or state law to a forum selection clause, the context in which 

the clause is asserted can be determinative.” Preferred Cap., Inc. v. 

1 We review the dismissal of an action for lack of personal jurisdiction de novo. 

See Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292 (11th Cir. 

2021). The same goes for questions related to the interpretation and enforceability of a forum-selection clause. See Rucker v. Oasis Legal Fin., L.L.C., 632 

F.3d 1231, 1235 (11th Cir. 2011).

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Sarasota Kennel Club, Inc., 489 F.3d 303, 306 (6th Cir. 2007). For 

instance, in a diversity action involving a transfer motion, “[c]onsideration of whether to enforce a forum selection clause . . . is 

governed by federal law, under 28 U.S.C. § 1404(a).” P & S Bus. 

Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003) 

(per curiam). But at least in some cases in which a defendant moves 

to dismiss for lack of personal jurisdiction, this Court has held that 

“we must apply state law.” Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 918–19 (11th Cir. 1989).

We needn’t wade into these Erie waters today, as the parties 

agree that Maryland law should apply, and Maryland has 

“adopt[ed] the federal standard for analyzing the enforceability of 

forum-selection clauses.” Peterson v. Evapco, Inc., 188 A.3d 210, 

228 (Md. Ct. Spec. App. 2018) (citing Gilman v. Wheat, First Sec., 

Inc., 692 A.2d 454, 462–63 (Md. 1997)).2 Thus, we “can apply state 

and federal law harmoniously” to the enforceability issue at hand. 

Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 

2002).

B 

That brings us to the heart of the parties’ dispute—whether 

the exercise of personal jurisdiction over Purugganan would 

2 Though we accept the parties’ agreement that we must apply Maryland 

law—and its incorporation of the federal standard—we note that there is similarly “no conflict between Alabama and federal law regarding the validity of 

forum selection clauses.” Rucker, 632 F.3d at 1236.

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violate due process.3 “Normally,” the Due Process Clause requires 

us to “consider whether the defendant purposefully established 

‘minimum contacts’ with the forum state.” Alexander Proudfoot, 

877 F.2d at 921 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 

316 (1945)). But “because the personal jurisdiction requirement is 

a waivable right,” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 

472 n.14 (1985), the normal “due process analysis is unnecessary 

where a nonresident defendant has consented to suit in a forum,” 

Alexander Proudfoot, 877 F.2d at 921. In that case, so long as a 

forum-selection clause is applicable and “not ‘unreasonable and unjust,’ [its] enforcement does not offend due process.” Burger King, 

471 U.S. at 472 n.14 (citation omitted) (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)); see also Carnival Cruise 

Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991).

3 In most cases, we use a two-step approach to analyze personal-jurisdiction 

issues. “First, we determine whether the exercise of jurisdiction is appropriate 

under the forum state’s long-arm statute.” Mut. Serv. Ins. Co. v. Frit Indus., 

Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). “Second, we examine whether the 

exercise of personal jurisdiction over the defendant would violate the Due 

Process Clause.” Id. In this case, “the two inquiries merge, because Alabama’s 

long-arm statute permits the exercise of personal jurisdiction to the fullest extent constitutionally permissible.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 

925 (11th Cir. 2007).

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8 Opinion of the Court 20-13849

1 

We start, then, by analyzing whether the floating forum-selection clause appliesto this dispute. Again, that provision provides 

as follows:

You and your owners agree that all actions arising under this Agreement or otherwise as a result of the relationship between you and us must be commenced 

in a state or federal court of competent jurisdiction 

within such state or judicial district in which we have 

our principal place of business at the time the action 

is commenced, and you (and each owner) irrevocably 

submit to the jurisdiction of those courts and waive 

any objection you (or the owner) might have to either 

the jurisdiction of or venue in those courts.

Doc. 1-2 at 26 (emphases added). Clearly, Purugganan waived objections to personal jurisdiction in the “state or judicial district,” to 

use the contract’s language, “in which we have our principal place 

of business at the time the action is commenced.” Who, though,

is the “we” and “our” in that phrase? That is the pivotal question.

Purugganan says that phrase refers to the principal place of 

business of Doctors Express—and only Doctors Express—as the 

original party to the Master Developer Agreement. AFC contends, 

by contrast, that the phrase now refers to its principal place of business because—as a valid assignee—it succeeded to all of Doctors 

Express’s rights and obligations under the contract.

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We agree with AFC. The Master Developer Agreement explicitly authorizes Doctors Express to “assign th[e] Agreement . . . 

to a third party without restriction.” Id. at 17. And under Maryland 

law, when a contract “is transferred by assignment, the assignee 

steps into the [assignor]’s shoes and acquires all the [assignor]’s 

rights” under the contract. Italian Fisherman, Inc. v. Middlemas, 

545 A.2d 1, 4 (Md. 1988) (emphasis added). That is, the “rights of 

an assignee are concomitant to those of an assignor”—“no more, 

no less.” Nationstar Mortg. LLC v. Kemp, 258 A.3d 296, 301 (Md. 

2021) (quoting Univ. Sys. of Md. v. Mooney, 966 A.2d 418, 430 (Md. 

2009)). Applying this principle, it seems to us that AFC (the assignee) holds the same right as Doctors Express (the assignor) to 

litigate in the state or judicial district containing its principal place 

of business—especially given that the Master Developer Agreement contemplates an unrestricted right of assignment.

True, the contract indicates at the outset that it would use 

the terms “we,” “us,” and “our” to refer to Doctors Express. See 

Doc. 1-2 at 1 (“DOCTORS EXPRESS FRANCHISING, LLC, a Maryland limited liability company, located at 8600 LaSalle Road, Suite 

326, Towson, Maryland 21286 (‘we,’ ‘us,’ or ‘our’)”). But applying 

a dose of common sense, we don’t think that parenthetical notation 

was meant—and shouldn’t be understood—to limit the contractual 

rights of Doctors Express’s assignees. See Credible Behav. Health, 

Inc. v. Johnson, 220 A.3d 303, 313 (Md. 2019) (“As a bedrock principle of contract interpretation, Maryland courts consistently strive 

to interpret contracts in accordance with common sense.” 

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(quotation marks omitted)). It was instead meant to clarify that the 

shorthand uses of “we” and “our” refer to the franchisor generally, 

as distinct from the terms “you” and “your,” which refer to the 

master developer.

Basic interpretive principles confirm this common-sense 

reading. Consider, first, the whole-text canon. “As with the interpretation of a statute,” Maryland courts (and thus we) don’t construe contractual “language in isolation, but consider[] that language in relation to the entire contract.” Impac Mortg. Holdings, 

Inc. v. Timm, 255 A.3d 89, 96 (Md. 2021); see also Antonin Scalia 

& Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 167 (2012) (“The text must be construed as a whole.”). Here, 

the Master Developer Agreement repeatedly uses the terms “we” 

and “our” to define the rights and obligations of the franchisor.4 

4 See, e.g., Doc. 1-2 at 2 (“We will have the sole right to approve Prospects

. . . .”); id. (providing that, if the developer breaches the Master Developer 

Schedule, “we have the right to terminate this Agreement” via written notice); 

id. at 3 (“Provided that you are in compliance with the terms of this Agreement, we will not grant another master developer the right to solicit Prospects . . . in the Territory.”); id. at 7 (“For any Prospect that you refer to us 

and with whom we sign a Franchise Agreement . . . we will pay to you fifty 

percent (50%) of the Initial Franchise Fee . . . paid to us by that Prospect.”); id. 

at 8 (“For each Franchisee . . . that you perform Service Responsibilities and 

Monitoring Responsibilities for in the Territory, we will pay to you an amount 

equal to two and one-half percent (2.5%) of such Franchisee’s Gross Sales

. . . .”); id. at 10 (“We will provide you a franchise marketing strategy . . . .”); 

id. at 11 (“We will provide you with a description of how to perform the Servicing Responsibilities and Monitoring Responsibilities . . . .”); id. at 14 (“We 

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And yet the parties knew—and all still agree—that the franchisor 

could assign the agreement “without restriction.” So, if the parties 

meant to ascribe some rights and obligations to Doctors Express 

specifically and others to Doctors Express and its assignees more 

generally, one would expect them to have used varying language

to that effect throughout the agreement—or, at the very least, to 

have carved out certain rights explicitly. The Master Developer 

Agreement did neither.

That brings us to another interpretive canon: Words “used 

by the parties in one sense will be given the same meaning throughout the contract in the absence of countervailing reasons.” 11 Williston on Contracts § 32:6 (4th ed., May 2022 Update); see also 

Leadroot v. Leadroot, 810 A.2d 526, 532 (Md. Ct. Spec. App. 2002); 

Scalia & Garner, supra, at 170 (“A word or phrase is presumed to 

bear the same meaning throughout a text . . . .”). Neither Purugganan nor the district court offers any good reason why the terms 

“we” and “our” would mean something different in the forum-selection clause than in other parts of the Master Developer Agreement. And once we attribute identical meaning to those words 

throughout the contract, Purugganan’s position proves too much. 

He insists that “we” and “our” “can be interpreted only as referring 

agree to reimburse you for all damages and expenses that you incur in any 

trademark infringement proceeding . . . .”); id. at 17 (“We may change our 

ownership or form and/or assign this Agreement . . . to a third party without 

restriction.”); id. at 25 (“Before you and we may bring an action in court 

against the other, you and we must first meet to mediate the dispute . . . .”).

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to Doctors Express.” Br. of Appellee at 15. But as just explained, 

the Master Developer Agreement employs those shorthand terms 

to delineate the parties’ ongoing rights and obligations. Accordingly, Purugganan’s proposed interpretation would deprive the assignment—which again, the contract explicitly authorized—of 

meaningful effect. That can’t be what the parties intended. Rather, 

by accepting assignment of the Master Developer Agreement, AFC 

“step[ped] into the shoes of its assignor” and became the “we” and 

“our” referenced throughout the contract. Nationstar, 258 A.3d at

309; see also, e.g., Midland Funding, LLC v. Briesmeister, 640 

S.W.3d 672, 682–85 (Ark. Ct. App. 2022) (concluding that “we,” 

“us,” and “our” included assignees for purposes of an arbitration 

clause even though the contract used those terms to reference the 

assignor).

Purugganan raises three counterarguments—none of which 

persuades us. First, he invokes language from one of our cases stating that a forum-selection clause “is viewed as a separate contract.” 

Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1238 (11th Cir. 

2011). To the extent that Purugganan reads this language as constraining us from looking to other provisions of the Master Developer Agreement for assistance in discerning the meaning of “we” 

and “our” in the forum-selection clause, he is incorrect. The severability of a forum-selection clause doesn’t alter the basic rule of 

construction that “[a] writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.” 

Restatement (Second) of Contracts § 202(2) (Am. Law. Inst. 1981); 

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see also Rocks v. Brosius, 217 A.2d 531, 545 (Md. 1966) (similar). 

Nothing in our decision in Rucker suggests otherwise. Rucker

stands for the more modest proposition that a forum-selection 

clause isn’t automatically rendered unenforceable if one of the parties claims that the contract of which it is part is void or voidable 

due to fraud, illegality, etc. See 632 F.3d at 1238. In that circumstance, the parties must litigate the voidness issue in the forum they 

have chosen to resolve their disputes—that is, unless the forumselection clause is itself unenforceable. See id.

To the extent that Purugganan instead means, by his citation 

to Rucker, to argue that the forum-selection clause is a separate 

agreement that can’t be assigned along with the main contract, we 

disagree. It is part of the assignable Master Developer Agreement, 

even if the provision could be “sever[ed]” upon an allegation that 

the contract is void. Id. Further, we note that even if we were to 

read Rucker as broadly as Purugganan appears to, it wouldn’t necessarily help him; the Master Developer Agreement, after all, provides that Doctors Express could “assign th[e] Agreement and any 

other agreement to a third party without restriction.” Doc. 1-2 at 

17 (emphasis added).

Second, Purugganan relies on a provision in the Master Developer Agreement stating that “nothing in th[e] Agreement is intended or deemed to confer any rights upon any person or legal 

entity not a party to th[e] Agreement.” Id. at 27. From that, he 

argues that only Doctors Express has the right to enforce the forum-selection clause. This argument is likewise unavailing. To be 

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sure, the quoted provision helped to clarify that there were no intended third-party beneficiaries when the agreement was executed. 

But recall that the contract also expressly contemplated assignment 

by Doctors Express, and thus that its assignees could obtain rights 

in the future. Simply put, then, the specific provision authorizing

the transfer of rights by assignment trumps the general no-thirdparty-beneficiaries clause. See Fed. Ins. Co. v. Allstate Ins. Co., 341 

A.2d 399, 407 (Md. 1975) (“Where two clauses or parts of a written 

agreement are apparently in conflict, and one is general in character and the other is specific, the specific stipulation will take precedence over the general, and control it.”).

Finally, Purugganan asserts that the contract should be construed against AFC as the assignee of the drafter. But the rule of 

contra proferentum “applies ‘only as a last resort’ when the meaning of a provision remains ambiguous after exhausting the ordinary 

methods of interpretation.” Lamps Plus, Inc. v. Varela, 139 S. Ct. 

1407, 1417 (2019) (quoting 3 Corbin on Contracts § 559 (1960)). For 

the reasons already explained, we don’t think that the floating forum-selection clause here is ambiguous once it is understood in its 

proper context. See, e.g., Credible Behav. Health, 220 A.3d at 314.

We therefore conclude that the forum-selection clause is applicable to this suit in the Northern District of Alabama, where AFC 

has its principal place of business.

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2 

Having determined that this suit falls within the scope of the 

forum-selection clause, the question then becomes whether the 

clause is enforceable. We hold that it is.

Where a forum-selection clause would otherwise apply, the 

party resisting it has the burden of demonstrating—by “a strong

showing”—that enforcement would be “unfair or unreasonable

under the circumstances.” Don’t Look Media, LLC v. Fly Victor 

Ltd., 999 F.3d 1284, 1297 (11th Cir. 2021) (quotation omitted). That

is no easy task. To satisfy his burden, the party resisting enforcement must show that (1) the clause “was induced by fraud or overreaching; (2) [he] would be deprived of [his] day in court because 

of inconvenience or unfairness; (3) the chosen law would deprive 

[him] of a remedy; or (4) enforcement of the clause would contravene public policy.” Id. (quotation omitted); accord Gilman, 692 

A.2d at 463. Absent one of those circumstances, a court should enforce the forum-selection clause according to its terms. “Freedom 

of contract requires no less.” IFC Credit Corp. v. Aliano Bros. Gen. 

Contractors, Inc., 437 F.3d 606, 610 (7th Cir. 2006).

Purugganan hasn’t met his burden of showing that enforcing the floating forum-selection clause here would be unreasonable 

or unjust. To start, we see no fraud or overreaching. In making 

this determination, “we look to whether the [forum-selection]

clause was reasonably communicated.” Krenkel v. Kerzner Int’l 

Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (per curiam). This 

Court’s “two-part test of ‘reasonable communicativeness’ takes 

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into account the clause’s physical characteristics and whether the 

[resisting party] had the ability to become meaningfully informed 

of the clause and to reject its terms.” Id. Purugganan doesn’t complain about the clause’s physical characteristics. And as already explained, when read in context, the clause unambiguously extends 

to assignees. Thus, we believe that the contract’s express reference 

to the franchisor’s broad right of assignment gave Purugganan—a 

businessman who acknowledged that he had “read th[e] agreement” and was “afforded an opportunity” both to “ask any questions” and to have the agreement “reviewed by an attorney,” Doc. 

1-2 at 34–35—the ability to meaningfully inform himself about the 

forum-selection clause’s scope. So even if we construe Purugganan’s arguments to suggest fraud or overreaching, they don’t

render the clause unenforceable.

There is also no indication that Alabama is so unfair or inconvenient a forum as to effectively deprive Purugganan, a New 

York resident, of a remedy or his day in court. See Shute, 499 U.S. 

at 594–95 (enforcing forum-selection clause in an adhesion contract 

that required cruise-ship passengers from Washington State to litigate their dispute in Florida).5

5To be clear, we don’t hold that a floating forum-selection clause could never

be unreasonable or unenforceable. This might be a different case if the agreement required Purugganan to litigate his “essentially local disputes in a remote 

alien forum.” The Bremen, 407 U.S. at 17. But we’re talking about Alabama, 

not Albania. And Purugganan appears to be a relatively sophisticated 

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Nor has Purugganan identified any public policy that would 

be frustrated by enforcement. In fact, enforcing this forum-selection clause furthers a fundamental policy of contract law—that parties are generally free to structure their affairs through legally binding promises. See, e.g., 15 Corbin on Contracts § 79.4 (2022); The 

Bremen, 407 U.S. at 11. And even beyond respecting the parties’ 

rights to structure their affairs, there are good reasons to enforce 

an assignable, floating forum-selection clause. Most notably, “public policy supports the enforcement of the forum selection clause 

to allow for the marketability” of the commercial agreement. Liberty Bank, F.S.B. v. Best Litho, Inc., 737 N.W.2d 312, 317 (Iowa Ct. 

App. 2007). If courts refuse to enforce such provisions, “assignors 

[will] have to compensate their assignees for having to litigate in an 

inconvenient forum.” IFC Credit Corp., 437 F.3d at 613. In turn, 

“they will have to charge a higher price to their customers” and 

contractual partners. Id.; see also Shute, 499 U.S. at 594.

Purugganan counters that “Alabama was not contemplated 

as a possible forum for this dispute because Doctors Express was 

not located there.”6 Br. of Appellee at 15. We have no reason to 

businessman, investing $189,000 to become the master developer for his territory. Those considerations further weigh against us holding that enforcement 

would be unreasonable in these circumstances.

6 At oral argument, Purugganan retreated somewhat from this position, admitting that Doctors Express could have moved to another state—like Alabama—and enforced the forum-selection clause there. See Oral Arg. at 18:13–

19:06. Even so, he maintained that Doctors Express’s successors or assigns 

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doubt that Purugganan didn’t specifically imagine litigating in Alabama when he signed the Master Developer Agreement. But that 

frames the issue too narrowly. After all, Purugganan knew that the 

litigation forum could change over the 15-year life of this contract. 

He likewise knew that the bargained-for forum would depend on 

the location of the franchisor’s principal place of business “at the 

time the action is commenced.” And he knew that the franchisor 

could assign its rights and obligations under the agreement “to a 

third party without restriction.” These provisions provide “ample 

notice that the agreement[] could be assigned” and that Purugganan might have to litigate in a different forum—including, potentially, Alabama. Liberty Bank, 737 N.W.2d at 316. While he 

“may be dissatisfied with the litigation forum, it is not our task to 

save [him] from the consequences of an agreement [he] freely entered into.” Preferred Cap., Inc. v. Assocs. in Urology, 453 F.3d 

718, 724 (6th Cir. 2006).

* * *

In sum, the district court erred in dismissing for lack of personal jurisdiction. By voluntarily agreeing to an applicable and enforceable floating forum-selection clause, Purugganan waived his 

right to contest personal jurisdiction in this dispute.

couldn’t do the same. As explained in text, we disagree with the distinction 

that Purugganan seeks to draw.

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III 

It follows from what we have said that Purugganan also 

waived any objections to venue.7 For the reasons already explained, Purugganan agreed to litigate in the “state or judicial district in which we”—which we have held includes AFC—“ha[d]

our”—which we have held includes AFC’s—“principal place of 

business at the time th[is] action [was] commenced.” So too, he 

agreed to “waive any objection” to “venue” in those courts. At the 

time of filing, AFC had its principal place of business in Shelby 

County, which is in the Northern District of Alabama. See 28 

U.S.C. § 81(a)(3). And that settles the venue issue. Because the

forum-selection clause is both applicable and enforceable here, 

Purugganan can’t raise his venue objection now. See Peterson v. 

BMI Refractories, 124 F.3d 1386, 1391 (11th Cir. 1997) (“As with 

other procedural defects, parties can waive venue requirements.”).

In response, Purugganan offers no reason why he might 

have consented to personal jurisdiction but not venue. Instead, he 

submits that AFC “[forfeited] its venue argument, which does not 

appear in its opening brief.” Br. of Appellee at 30. That is incorrect—AFC’s brief “specifically and clearly identified” the venue issue. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th 

Cir. 2004). AFC framed the issue statement in its brief as “whether 

7 The district court didn’t address venue, so normally we wouldn’t either. 

That said, because the venue issue rises or falls, as a matter of law, with the 

personal-jurisdiction issue, we see no reason to delay its resolution.

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consent to personal jurisdiction and venue” was established by the 

forum-selection clause. Br. of Appellant at 1 (emphasis added). It 

then devoted three of the argument’s nine pages to venue, under a 

subject heading that specifically referenced the topic. See id. at 14–

16. Finally, AFC closed its brief by asking us to hold that Purugganan “has consented to venue in Alabama,” in addition to “revers[ing] the district court’s judgment of dismissal” for lack of personal jurisdiction. Id. at 17. Taken together, that was more than 

enough to preserve the venue issue.

* * *

We REVERSE and REMAND for further proceedings consistent with this opinion.

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20-13849 TJOFLAT, J., Concurring 1

TJOFLAT, Circuit Judge, Concurring:

I concur because I agree the forum selection clause provides 

the Northern District of Alabama with personal jurisdiction over 

Purugganan. I write separately to demonstrate the futility and inefficiency of seeking a declaration on the meaning of a forum selection clause when, as here, a parallel proceeding in another court is 

either imminent or ongoing. To make this demonstration, I first 

lay out the relevant facts and decisions from the ongoing parallel 

proceedings in the United States District Court for the District of 

Connecticut. With that in mind, I then explain why our decision 

today will have no impact on the Connecticut District Court’s decision-making. Finally, I close with a discussion on the foolishness 

of this sort of anticipatory litigation.

I. 

As the Majority opinion recounts, Doctors Express Franchising and Danilo Purugganan entered into a Master Developer 

Agreement (“MDA”) in 2009 that contained a floating forum selection clause. Maj. Op. at 2–3. Four years later, Doctors Express assigned its rights under the MDA to AFC Franchising and notified 

Purugganan of this assignment. Id. at 2. Eventually, AFC and 

Purugganan’s relationship “soured” and Purugganan notified AFC 

of his intent to sue in either Connecticut or New York. Id. at 3. In 

response, AFC filed this declaratory judgment action in the Circuit 

Court of Shelby County, Alabama, on March 6, 2020, seeking a declaration that “the forum selection clause requires that any litigation 

be conducted in Alabama.” Purugganan then removed the suit to 

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2 TJOFLAT J., Concurring 20-13849

the Northern District of Alabama on April 2, 2020,1 and there asked 

the District Court to either dismiss the case for lack of personal jurisdiction and improper venue or to transfer the case to the District 

of Connecticut. Id. at 4. The Northern District of Alabama granted 

the motion to dismiss the case for lack of personal jurisdiction and 

AFC appealed, resulting in our decision above. Id. at 4–5.

But while this suit was ongoing, the parties have litigated 

this exact same issue three different times in the District of Connecticut.2 On March 17, 2020, eleven days after AFC filed this suit 

in Shelby County, Purugganan filed suit against AFC in the District 

of Connecticut, just as he told AFC he would. In his complaint, 

1 AFC also sought a declaration that the limited exclusivity clause of the MDA 

allows AFC “to develop company-owned franchises in the territory embraced 

by the Master Development Agreement.” This second claim is what enabled 

Purugganan to meet 28 U.S.C. § 1332(a)’s $75,000 amount in controversy requirement for diversity jurisdiction. See Federated Mut. Ins. Co. v. McKinnon 

Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (explaining that plaintiffs seeking declaratory relief under diversity jurisdiction must claim that the amount 

in controversy exceeds $75,000). Likewise, this second claim also forms the 

basis of AFC’s standing, as we must decide whether the Northern District of 

Alabama has personal jurisdiction over Purugganan before AFC can pursue its 

second claim against him. 

2As neither party put into evidence their filings in the District of Connecticut, 

I take judicial notice of that Court’s docket. See Rothenberg v. Sec. Mgmt. 

Co., Inc., 667 F.2d 958, 961 n.8 (11th Cir. 1982) (“Normally, an appellate court 

will not consider facts that were not presented to the district court. We are, 

however, free to take judicial notice of subsequent developments in cases that 

are a matter of public record and are relevant to the appeal.” (citations omitted)). 

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20-13849 TJOFLAT, J., Concurring 3

Purugganan sought (among other claims) a declaration that the 

MDA does not permit suit in Alabama and/or that the MDA’s floating forum selection clause is unenforceable. Predictably, AFC responded on April 9, 2020, by moving to dismiss the case for improper venue based on the forum selection clause under Fed. R. 

Civ. P. 12(b)(3).3 

The Connecticut District Court analyzed AFC’s motion to 

dismiss under the Second Circuit’s four step test for determining 

whether a forum selection clause is valid and enforceable. Purugganan v. AFC Franchising, LLC (“Purugganan I”), No. 3:20-CV00360(KAD), 2020 WL 2494718, at *2 (D. Conn. May 13, 2020) (citing Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019)). Under this 

test, 

a district court must consider three factors in determining whether the presumption of enforceability 

applies to a forum selection clause: whether (1) the 

clause was reasonably communicated to the party resisting its enforcement; (2) the clause is mandatory or 

permissive; and (3) the claims and parties to the dispute are subject to the clause.

3 As the Connecticut District Court correctly noted, Fed. R. Civ. P. 12(b)(3) 

was the incorrect vehicle for enforcing the forum selection clause as venue 

was proper in Connecticut. AFC Franchising, LLC (“Purugganan I”), No. 

3:20-CV-00360(KAD), 2020 WL 2494718, at *1 (D. Conn. May 13, 2020) (citing 

Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Instead, the 

Court construed AFC’s Rule 12(b)(3) motion as a motion to dismiss under the 

doctrine of forum non conveniens. Id. 

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4 TJOFLAT J., Concurring 20-13849

Id. (quoting Fasano, 921 F.3d at 335). “Satisfaction of these factors 

creates a presumption of enforceability, which can be overcome at 

step four by ‘a sufficiently strong showing that enforcement would 

be unreasonable or unjust, or that the clause was invalid for such 

reasons as fraud or overreaching.’” Id. (quoting Martinez v. 

Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Steps one and 

four of this test concern the enforceability of the forum selection 

clause and is governed by federal law, while steps two and three 

concern the interpretation of the clause and is governed by state 

contract law. See Martinez, 740 F.3d at 217–18.

Applying this test, the Connecticut District Court “answer[ed] the inquiry at both steps one and three in the negative and 

therefore [held that] the clause does not enjoy the presumption of 

enforceability.” Purugganan I, 2020 WL 2494718, at *3. To start 

with, the Connecticut Court interpreted the forum selection clause 

as only applying to Doctors Express and not its assignees using essentially the same reasoning that Purugganan put forth here. Compare id. and Maj. Op. at 8–14. Consequently, the Court held that 

“interpreting the MDA’s forum selection clause as providing adequate notice to the Plaintiff that he might have to litigate in the 

forum of the principal place of business of some future, unknown 

assignee of Doctors Express is simply a bridge too far . . . .” Purugganan I, 2020 WL 2494718, at *4. Similarly, the Court found that 

“AFC’s enforcement of the forum selection clause was not, in any 

way, foreseeable to Purugganan” and thus AFC was not “closely 

related” enough to Purugganan to enforce the forum selection 

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20-13849 TJOFLAT, J., Concurring 5

clause against Purugganan under step three. Id. (citing Magi XXI, 

Inc. v. Stato della Citta del Vaticano, 714 F.3d 722–23 (2d Cir. 

2013)). Finally, the Court concluded that it would “decline to enforce the forum selection clause at step four of the analysis” even if 

the forum selection clause was entitled to a presumption of enforceability under Second Circuit precedent. Id.

After the Connecticut District Court denied AFC’s motion 

to dismiss, AFC moved for reconsideration. Purugganan v. AFC 

Franchising, LLC (“Purugganan II”), No. 3:20-cv-00360 (KAD), 

2020 WL 3000761, at *1 (D. Conn. June 4, 2020). In deciding that 

motion, the Connecticut District Court made its views on the forum selection clause even plainer:

[E]ven considering these arguments anew, the Court 

remains unpersuaded that the MDA’s forum selection 

clause requires that this suit be litigated in Alabama. 

Indeed, perhaps the only analytical point that the 

Court might clarify from its prior memorandum of 

decision is that, in the Court’s view, this is not a close 

call. What AFC asks this Court to do—apply a floating forum selection clause to a future, unknown and 

unidentified assignee of a contracting party absent express language extending the forum selection provision to that party’s assignee or successor-in-interest—

reaches so far beyond the available case law upholding floating forum selection clauses that even if the 

cases AFC cites were binding on the Court (which 

they are not), the Court would still find them 

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6 TJOFLAT J., Concurring 20-13849

distinguishable for the very reasons articulated in its 

previous memorandum of decision.

Id. at *2. Notably, the Court also stated that 

[E]ven if the Court were to stretch so far as to find the 

forum selection clause reasonably communicated to 

Purugganan and reasonably foreseeable with respect 

to its enforcement by AFC, federal common law permits the Court to decline to enforce a forum selection 

clause when to do so would create an injustice and 

contravene the policies otherwise favoring enforcement . . . . In short, to enforce the forum selection 

clause in these circumstances would be to promote 

the epitome of uncertainty—blindsiding the Plaintiff 

with an obligation to litigate in Alabama—a forum 

completely inscrutable from the text of the contract. Cf. Jig Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F.2d 171, 179 (5th Cir.

1975) (“One can buy a pig in a poke, but only if the 

parties fashion their contract and compound their 

words with the pig’s possible infirmities in mind.”).

Id. at *3. 

On top of its motion to dismiss and the subsequent motion 

for reconsideration, AFC also counterclaimed in its answer for a 

declaration that the proper venue under the forum selection clause 

is Alabama. Purugganan v. AFC Franchising, LLC (“Purugganan 

III”), No. 3:20-CV-00360 (KAD), 2021 WL 5301522, at *2 (D. Conn. 

Nov. 15, 2021). In response, Purugganan moved for a judgment on 

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20-13849 TJOFLAT, J., Concurring 7

the pleadings dismissing this counterclaim based on the Connecticut District Court’s prior decisions, leading to the parties litigating 

the forum selection clause for the third time in the District of Connecticut. Id. at *1. Unsurprisingly, the Connecticut District Court 

granted Purugganan’s motion for judgment on the pleadings in relevant part. Id. at *2–3. 

As a result of these decisions, the parties have now been litigating their claims in the District of Connecticut for almost two 

and a half years. In that time, the parties have engaged in extensive 

motion practice, including motions for temporary restraining orders and preliminary injunctions, as well as several court-ordered 

settlement negotiations. As of this writing, the Connecticut District Court is considering a partial motion for summary judgment 

argued last April. In short, both the parties and the Connecticut 

District Court have already invested a great deal of time and effort 

into litigating in Connecticut.

II.

Our decision today will return this case to the Northern District of Alabama. On remand, the District Court will require 

Purugganan to answer AFC’s complaint, and the parties will then 

proceed to litigate the case. Should that Court see fit to enter a 

declaratory judgment about the validity of the forum selection 

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8 TJOFLAT J., Concurring 20-13849

clause,4 then and only then may AFC argue in the District of Connecticut that the forum selection clause issue is precluded by the 

Northern District of Alabama’s decision.5 

4The Supreme Court has made “clear that district courts possess discretion in 

determining whether and when to entertain an action under the Declaratory 

Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct. 

2137, 2140 (1995). This may well be a case where the “district court, in the 

sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose.” Id. at 288, 115 S. Ct. at 2143. 

After all, “declaratory judgment actions are equitable in nature.” Manuel v. 

Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). So, the District Court 

would consider all relevant equitable factors, including whether AFC already 

has an adequate remedy at law in the District of Connecticut and whether it 

is proper for a district court in Alabama to decide an issue before the District 

of Connecticut. 

Another consideration would be the first-filed rule. Typically, the firstfiled rule would favor having the Northern District of Alabama decide this declaratory judgment action absent compelling circumstances. Id. However, 

“[i]n determining whether compelling circumstances exist, we have recognized that for declaratory judgment actions ‘one equitable consideration . . . is 

whether the . . . action was filed in apparent anticipation of the other pending 

proceeding.’” Id. (quoting Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.3d 

1194, 1195 (11th Cir. 1982)). And we have explicitly held that district courts 

do not abuse their discretion when “dismiss[ing] a declaratory judgment action . . . filed in apparent anticipation of another proceeding.” Id. at 1137. 

5Of course, AFC may run to the District of Connecticut as soon as this opinion 

is published and erroneously argue that we have decided the forum selection 

clause issue for the Connecticut District Court with this opinion. See Purugganan III, 2021 WL 5301522, at *2 n.3 (“As the court has previously indicated, 

if the Eleventh Circuit Court of Appeals determines that the forum selection 

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20-13849 TJOFLAT, J., Concurring 9

So, unfortunately for AFC, our decision today will have no 

binding effect on the Connecticut District Court. All we decide is 

that the Northern District of Alabama has personal jurisdiction 

over Purugganan in this declaratory judgment action. What’s 

more, AFC’s self-inflicted legal woes will continue even if the 

Northern District of Alabama does grant AFC the declaratory relief 

it seeks. Should the Northern District of Alabama grant declaratory relief and declare the forum selection clause valid, the Connecticut District Court will then have to independently determine 

(after AFC amends it answer to plead issue preclusion) whether (1) 

to give that decision preclusive effect under the Second Circuit’s 

issue preclusion test, (2) if so, whether the forum selection clause 

is enforceable under Second Circuit precedent, not Eleventh Circuit precedent, under the circumstances presented in Connecticut, 

and (3) if so, whether the Connecticut District Court should exercise its discretion (considering the time already invested in Connecticut) to transfer the case under 28 U.S.C. § 1404(a) or dismiss 

under the doctrine of forums non conveniens. Then, any decision 

the Connecticut District Court makes will be reviewed by the 

clause is enforceable by AFC against Purugganan, then this Court will likely 

honor that determination, regardless the Court's own differing opinion.”). 

However, all we decide today is whether the Northern District of Alabama 

has personal jurisdiction over Purugganan, i.e., that Purugganan is present in 

Alabama. The Northern District of Alabama, not the Eleventh Circuit, must 

decide whether to issue a declaratory judgment that AFC could then use 

against Purugganan in the District of Connecticut. Then, the Connecticut District Court would have to perform the full analysis that I outline here. 

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Second Circuit, either through an appeal from final judgment or an 

interlocutory appeal. 

Let’s take this analysis step-by-step. To start with, issue preclusion “operate[s] across a two-lawsuit continuum.” Graham v. 

R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1214 (11th Cir. 2017) (en 

banc) (Tjoflat, J., dissenting). As I have previously explained, 

First, parties litigate a dispute to a final judgment on 

the merits. Second, in a later, separate suit between 

the parties, one party brings to court evidence of an 

earlier judgment and contends that issue . . . preclusion should apply to prevent her opponent from litigating a previously decided issue . . . . In this twolawsuit scheme, the first court is the “rendering” 

court and the second is the “recognizing” court.

Id. at 1214–15 (Tjoflat, J., dissenting). If the Northern District of 

Alabama grants declaratory relief, then it would be the rendering 

court and the Connecticut District Court would be the recognizing 

court. So, before giving the declaratory judgment preclusive effect, 

the Connecticut District Court would have a duty to review the 

record created in the Northern District of Alabama and then to analyze the judgment under the Second Circuit’s issue preclusion 

test, including whether the issue before the District of Connecticut 

was actually litigated 6 in the Northern District of Alabama. See 

6 I emphasize the “actually litigated” part of the issue preclusion test because I 

doubt the parties will actually litigate in the Northern District of Alabama the 

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20-13849 TJOFLAT, J., Concurring 11

CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 77 

(2d Cir. 2017) (“Issue Preclusion is permissible as to a given issue if: (1) the identical issue was raised in a previous proceeding; (2)

the issue was actually litigated and decided in the previous proceeding [by the rendering court]; (3) the party had a full and fair

opportunity to litigate the issue; (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits; and

(5) application of the doctrine is fair.” (alterations omitted)). Further, the Northern District of Alabama (and this Court) cannot decide what preclusive effect, if any, a declaratory judgment would 

have in the District of Connecticut. Graham, 857 F.3d at 1192 

(Tjoflat, J., dissenting) (“Courts tasked with determining whether 

to enforce a rendering court’s judgment make those determinations themselves.”). 

Should the Connecticut District Court find that the Northern District of Alabama’s declaratory judgment ought to be given 

some preclusive effect, it would still need to independently 

identical issue that the District of Connecticut will have to consider. To “actually litigate” the Connecticut District Court’s issue, the Northern District of 

Alabama would need the whole ball of wax from the Connecticut case. At the 

least, this would include all the relevant evidence from the District of Connecticut and consideration of the circumstances presented in Connecticut at 

the time of the Northern District of Alabama’s judgment. The District (or in 

this case, Magistrate) Judge for the Northern District of Alabama would essentially have to pretend he was designated to sit in the District of Connecticut to 

hear this case. Considering the advanced stage of the Connecticut litigation, 

the Northern District of Alabama may well be better off simply refusing to 

grant declaratory judgment. 

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12 TJOFLAT J., Concurring 20-13849

determine whether to enforce the forum selection clause in the circumstances before it under Second Circuit precedent, not Eleventh 

Circuit precedent. Indeed, the Second Circuit’s test appears to be 

materially different from this Court’s test. Our Court simply decides whether the forum selection clause applies as a matter of contract interpretation and then whether “enforcement would be ‘unfair or unreasonable under the circumstances.’” Maj. Op. at 15 

(quoting Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 

1297 (11th Cir. 2021)). By contrast, the Second Circuit has a threestep test for determining whether a forum selection clause is “presumptively enforceable,” and then an additional step where courts 

decide whether the presumption can be overcome by “making a 

sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud 

or overreaching.” Martinez, 740 F.3d at 217 (quoting Phillips v. 

Audio Active Ltd., 494 F.3d 378, 383–84 (2d Cir. 2007)). In Purugganan I and II, the Connecticut District Court declined to enforce 

the forum selection clause under steps one, three, and four of the 

Second Circuit test as it has been interpreted by Second Circuit 

caselaw, and there is nothing stopping the Connecticut District 

Court from doing so again even if it accepts the Northern District 

of Alabama’s potential future declaratory judgment as preclusive.

Further, even if the Connecticut District Court decides the 

forum selection clause is enforceable under Second Circuit precedent, it would still have to independently decide whether to transfer or dismiss the case under the public interest factors. As the 

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20-13849 TJOFLAT, J., Concurring 13

Supreme Court explained in Atlantic Marine, the effect of a valid 

and enforceable forum selection clause is that all the private factors 

under § 1404(a) and the doctrine of forum non conveniens “weigh 

in favor of the transfer” or dismissal. Atl. Marine Const. Co. v. U.S. 

Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 67, 134 S. Ct. 568, 584 

(2013). Thus, Purugganan would have to show that the “publicinterest factors overwhelmingly disfavor a transfer” to defeat a § 

1404(a) motion. Id. But Purugganan could, theoretically, make 

such a showing, and doing so would also allow the Connecticut 

District Court to refuse to enforce the forum selection clause.

Finally, whatever decision the Connecticut District Court 

makes will inevitably be reviewed by the Second Circuit. Should 

the Connecticut District Court refuse to enforce the forum selection clause (for whatever reason), the case will proceed in Connecticut as normal and its decision will be reviewable on appeal from 

final judgment. Should the Connecticut District Court dismiss the 

case under the doctrine of forums non conveniens, then its decision 

will also be immediately reviewable by the Second Circuit. Even 

if the Connecticut District Court decides to transfer the case to an 

Alabama district court under § 1404(a), Purugganan could still seek 

review in the Second Circuit by petitioning for a writ of mandamus. Golconda Min. Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir. 

1966) (“A petition for mandamus rather than a request for leave to 

appeal under 28 U.S.C. § 1292(b) is the proper procedure to seek 

review of a trial court’s disposition of a § 1404(a) motion, challenged for abuse of discretion.”). Either way, the Second Circuit 

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14 TJOFLAT J., Concurring 20-13849

will ultimately have the final say on whether to enforce the forum 

selection clause, not this Circuit.7

III.

The MDA’s forum selection clause has now been litigated 

five times: three times in the District of Connecticut, once in the 

Northern District of Alabama, and once in the Eleventh Circuit. 

Before this litigation is over, this issue could easily be litigated four 

times more: (1) in the Northern District of Alabama on remand 

from this appeal, (2) again in the Eleventh Circuit once the Northern District of Alabama makes its decision, (3) again in the District 

of Connecticut following the Northern District of Alabama’s decision, and (4) finally, in the Second Circuit. Obviously, this is not 

how the American legal system is supposed to work. In the typical 

case, important issues are litigated twice, not nine times. AFC’s 

atypical litigation strategy has thus cost itself, Purugganan, and the 

federal judicial system a great deal of time and money for little to 

no benefit. 

Imagine if AFC had conducted this litigation in a sensible 

manner. Once Purugganan informed AFC of his intention to sue 

in Connecticut or New York, a wise lawyer would have realized 

that AFC must litigate the forum selection clause in whatever court 

Purugganan filed in regardless of any declaratory judgment action 

AFC might file in Alabama. So, instead of filing this suit in 

7Unless, of course, the Supreme Court decides to grant certiorari.

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Alabama, the wise lawyer would have simply prepared his arguments under the forum selection clause and allowed Purugganan 

to file suit wherever he wished, as is his right as the real plaintiff in 

this litigation. Then, once Purugganan filed his suit in the District 

of Connecticut, AFC could have moved for transfer or dismissal 

based on the forum selection clause and petitioned for a writ of 

mandamus from the Second Circuit had the Connecticut District 

Court still denied AFC’s motion. This course of action would have 

resolved the forum selection clause issue in a timely and efficient 

manner. 

More importantly, AFC’s litigation strategy has detrimental 

impacts on the federal judicial system beyond mere inefficiency. It 

is not the job of the Northern District of Alabama or the Eleventh 

Circuit to decide whether the District of Connecticut should apply 

the MDA’s forum selection clause and transfer Purugganan’s action to Alabama. That responsibility lies solely with the District of 

Connecticut and the Second Circuit. Attempting to use a declaratory judgment action to have a district or circuit court “grade the 

papers” of a district court outside its circuit undermines respect for 

the federal judiciary and pushes the boundaries of federal court jurisdiction. Indeed, our opinion today is about as close as a federal 

court can get to issuing an advisory opinion without technically violating Article III of the U.S. Constitution. 

I do not know how this litigation will ultimately be resolved. 

Certainly, our decision today does little for the parties, the Northern District of Alabama, the Connecticut District Court, and the 

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16 TJOFLAT J., Concurring 20-13849

Second Circuit. Hope, however, springs eternal, and perhaps future litigants will be able to avoid the perils that AFC has inflicted 

upon itself. 

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