No. 84-454 

IN THE SUPRELW COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, ex rel., 

POLARIS INDUSTRIES, INC., 

Relator, 

THE DISTRICT COURT OF THE 

THIRTEENTH JUDICIAL DISTRICT, 

IN AND FOR THE COUNTY OF YELLOWSTONE, 

THE HONORABLE DIANE G. BARZ, Judge 

presiding, 

Respondents. 

ORIGINAL PROCEEDING : 

COUNSEL OF RECORD: 

For Relator: 

McNamer, Thompson & Cashmore; Charles R. Cashmore, Jr. 

argued, Billings, Montana 

For Respondents: 

Berger Law Firm; Arnold Berger argued, Billings, 

Montana 

Anderson, Edwards & Molloy, Billings, Montana 

Submitted: January 251 1985 

~~~id~d: February 15, 1985 

Filed:: ( -.. .. : 

:7:j :; 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Relator Polaris Tndustries, Inc. filed an application 

for e writ of supervisory control asking this Court to 

reverse the Yellowstone County District Court's Order which 

refused to grant Polaris' motion to dismiss an action filed 

against it by Midland Implement Company, Jnc. 

Three issues were raised: first, whether the District 

Court erre? in denying Polaris1 motion to dismiss; second, 

whether a provision in an Agreement providing an exclusive 

out-of-state forum for litigation is valid and enforceable in 

Montana; and third, whether the District Court erred in 

holding that Polaris' refusal to renew the Agreement rendered 

it void as a matter of law, thereby precluding Polaris from 

availing itself of the out-of-state forum provision of the 

Agreement. Because we hold the forum-selection clause is 

void, we need not address the remaining issues. 

On April 7, 1982, Midland entered into a written 

Distributor Agreement with Polaris. The Agreement provj-des 

Polaris would manufacture snowmobiles for commercial sale, 

and Midland would act as distributor for the products. 

The Agreement further provides that no action on claims 

arising from the Agreement may be maintained by Midland 

against Polaris in any court except in Hennepin County, 

Minnesota District Court, or in the United States District 

Court in Minneapolis, Minnesota. After one year, the 

Agreement expired of its own terms, leaving matters such as 

inventory and warranty claims between the parties unresolved. 
Midland. a.sserted that 5 28-2-708, MCA renders the 

forum-selection clause void. We agree. That statute 

provides : 

"Restraints upon 1ega.l proceedings void. Every 

stipulation or condition in a contract by which any 

parky thereto is restricted from enforcing his 

rights under the contract by the usual proceedings 

in the ordinary tribunals or which limits the time 

within which he may thus enforce his rights - i.s 

-- void." (Emphasis added.) 

The complaint of the plaintiff in this case comes within 

the provisions of the foregoing code section. The pla.intiff 

seeks to enforce its right under its contract with Polaris by 

a "usual proceeding" in the "ordinary tribunals" of Montana. 

We hold that the forum-selection clause of the Agreement is 

void under the statute a.s an improper restraint upon the 

pla.intiffls exercise of its rights. 

We, therefore, conclude that the District Court 

correct)-y denied Polaris' motion to dismiss. We deny the 

application for writ of supervisory control. 

/? 

We Concur: ,/ 

/ 

kfq7'&)2- Chief Justice 
Justices 
Justice John C. Sheehy, special.1~ eo~curring: 

1 concur in the foregoing opinion. 

The provisions of Art. I, Section 16, 1972 Montana 

Constitution, are further evidence of a strong public policy 

in this State that impedances to state courts may not be 

contenanced by us. The constitutional statement is that 

courts of justice shall be open to every person, and speedy 

remedy afforded for every injury of person, property or 

character. Forum selection clauses in contracts impede the 

right to judicial process and especially discourage a speedy 

remedy. 

A further reason for refusing validity to a forum 

selection clause may be found in the development of long-arm 

jurisdiction. Whereas formerly, a state could not make a 

Sinding judgment - in personam against an individual or 

corporate defendant with which the state had no contacts, 

fv' 

ties or relations (PeJdnoyer v. Neff (1877), 95 U.S. 714, 24 

L.Ed 565), with the decisions of the U.S. Supreme Court 

beginning in 1945 (International. Shoe Co. v. State of 

Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 I..Ed. 95), 

it became recognized that due process is provided non-state 

residents if traditional notions of justice and fair play 

made them amenable to state jurisdictions away from home. 

See Travelers Health Associat.ion v. Virginia (1950), 339 U.S. 

643, 70 S.Ct. 927, 94 L.Ed. 1154; Perkins v. Benguet 

Consolidated Mining Co. (1952), 342 U.S. 437, 72 S.Ct. 413, 

L/ f5- /+5/ 

96 L.Ed. 4; McGee v. International Life Ins. Co. f39-52), 

355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Hanson v. Denckla 

(1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. 

Thus under McGee, supra., it was sufficient for due 

process that suit was based on a contract which had 

substantial connection with that state. 355 U.S., p. 223. 
8 

Hon, John C. Sheehy 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

March 12, 1985 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

MAR 1 8 1985 

ETHZ!.. M. &HI?]:i,ON 

State ex rel. Polaris Industries, Inc. v. District &WGts@LiZime couri 

Thirteenth Judicial District, Yellowstone County, ~o.StM.sQ@dh$anFeb. 

15, 1985, specially concurring 

Page 4, line 15 --- Pehnoyer v. Neff should read Pennoyer v. Neff. 

Page 4, line 6 from bottom --- 97 L.Ed. - 469 should read 97 L.Ed. / 7 

485. $ 

Page 4, line 6 from bottom --- (1952) should read (1957). J 

Page 5, line 10 from bottom --- S - 27-2-708 should read § - 28-2-708. 

WEST PUBLISHING COMPANY 

Box 43526 

St. Paul, MN 55164 
Fere Polaris' contact with Midland constituted very 

substantial connections with Montana. Under any modern 

concept of - in personam jursidiction over non-state 

defendants, Polaris is plainly subject in this case to 

Montana's long-arm jurisdiction. It would be patently a step 

hack from the cases affording such jurisdiction to hold that 

forum selection clauses may set aside the significant growth 

of - in personam jursidiction law. 

Montana's rules of civil procedure take notice of the 

growth in the law pertaining to non-state defendants in state 

courts. Rule 4B provides that jurisdiction of the sta.te 

courts stretches to include any claim for relief from the 

doing personally or through employees of the transaction of 

any business in the state or entering into a contract for 

materials to be furnished in this state. Those activities 

provide the "minimum con.tactsW by the non-state resident 

which makes long-arm iursidiction of the non-state resident 

comportable with due process. international -- Shoe Co., supra. 

/d 

I therefore agree that S -2-7-2-708, MCA, states a public 

pol-icy that has existed in Montana. historically and has even 

more meaning with the d.evelopment of the newer concepts of 

1-ong-arm jurisdiction. That policy makes forum-selection 

clauses in contracts in our state void. There i.s a measure 

of protection even so for non-state residents. If there a.re 

not the minimum contacts necessary for long-arm jurisdiction 

with the state by the non-state resident, no state 

jursidiction exists with or without the forum selection 

clause.