UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1873

THAVIAN FORD,

 Plaintiff – Appellee,

v.

BIG DADDY DRAYAGE LLC,

 Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Beaufort. Solomon Blatt, Jr., Senior

District Judge. (9:13-cv-00175-SB)

Submitted: January 16, 2014 Decided: March 5, 2014

Before NIEMEYER, SHEDD, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ryan D. Gilsenan, David S. Yandle, WOMBLE CARLYLE SANDRIDGE & 

RICE, PLLC, Charleston, South Carolina, for Appellant. Tom 

Johnson, Warren Johnson, LAW OFFICE OF DARRELL THOMAS JOHNSON, 

JR., LLC, Hardeeville, South Carolina; Algernon G. Solomons, 

III, SPEIGHTS & RUNYAN, Hampton, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Big Daddy Drayage LLC, (“BDD”) appeals from the 

district court’s order denying its motion to dismiss Thavian 

Ford’s breach of contract complaint on the basis of a 

forum-selection clause in another contract requiring litigation 

in New Jersey. BDD argues that the two contracts are related. 

We affirm.

Ford was an independent contractor for BDD pursuant 

to the terms of a written Independent Contractor Agreement 

(“ICA”) that Ford and BDD entered into in September 2008 and 

renewed in 2011.1

 The ICA makes no mention of the lease or sale 

of a vehicle. The ICA expressly establishes Newark, New Jersey,

as the exclusive forum for resolving any disputes “arising from 

or related to this agreement.” In addition, the ICA provides

that the “Agreement contains the entire understanding between 

the parties relating to the transaction contemplated by this 

Agreement. All prior contemporaneous agreements . . . are 

merged in this Agreement and shall be of no further force or 

effect.” 

 1 The parties provide the 2011 renewal but not the original 

2008 contract. It is unclear whether the terms of the renewal 

contract were similar or identical to the original contract. 

Nonetheless, the parties rely exclusively on the 2011 contract.
3

Also in September 2008, Ford and BDD entered into a 

Lease to Purchase Agreement, (“LPA”) whereby Ford paid monthly 

installments toward the ownership of a tractor supplied by BDD. 

In a paragraph entitled “Contractor Status,” the LPA provides

that “[a]t all times during the term of this Agreement, Lessee 

agrees to be under contract to [BDD] . . . under the terms if of 

an Independent Contract Agreement. If, at any time during the 

term of this Agreement, Lessee is not under contract with [BDD], 

this Agreement shall terminate immediately.”2

 The LPA does not 

contain a forum-selection clause. 

In January 2013, Ford filed a class action complaint 

against BDD in the District of South Carolina, averring that he 

and other drivers had fully paid for their vehicles but BDD 

refused to transfer title or refund payments. Ford stated that 

BDD sold automobiles in South Carolina. The complaint does not 

include allegations regarding the employment practices of BDD, 

nor does it mention the ICA. 

BDD filed a motion to dismiss and/or to transfer venue 

to New Jersey, based upon the forum-selection clause in the ICA. 

 2 This odd language (“if of” and “Independent Contract 

Agreement” instead of “Independent Contractor Agreement”) is 

termed a scrivener’s error by Appellant. Appellee, on the other 

hand, argues that the language renders the clause “unclear.” 

The district court cited this language in determining that the 

contract was ambiguous.
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The district court denied the motion to dismiss, finding that 

the forum-selection clause in the 2011 ICA does not apply to 

Ford’s claims arising out of the 2008 LPA. The court ruled 

that, “at best,” the language is unclear and that any ambiguity 

should be construed against the drafter, BDD. The district 

court certified the matter for an interlocutory appeal, pursuant 

to 28 U.S.C. 1292(b), noting that there was a “substantial 

ground for difference of opinion.” BDD then applied for 

permission to appeal in this court, which we granted.

A motion to dismiss based on a forum-selection clause 

should be treated as a Rule 12(b)(3) motion to dismiss based on 

improper venue. Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 

471 F.3d 544, 550 (4th Cir. 2006). We review a district court’s 

ruling on such a motion de novo. Id. 

The rules of contract construction are designed to 

determine the intent of the parties. Goldston v. State Farm 

Mut. Auto. Ins. Co., 594 S.E.2d 511, 518 (S.C. Ct. App. 2004). 

Under South Carolina law,3 where a contract is clear and 

unambiguous, a court should rely on the plain language of the 

contract, “interpret[ing] its lawful meaning and the intent of 

 3 Ford cites South Carolina law without analyzing its 

applicability, and BDD cites only to federal case law without 

analyzing the choice-of-law issue. We conclude that South 

Carolina law, the state where the contract was presumably made 

and performed, is applicable. 
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the parties as found within the agreement.” Smith-Cooper v. 

Cooper, 543 S.E.2d 271, 274 (S.C. Ct. App. 2001); see also

Jordan v. Sec. Group, Inc., 428 S.E.2d 705, 707 (S.C. 1993). A 

contract is ambiguous if it could be understood in more ways 

than one, if its terms are indefinite, or if it could have a 

double meaning. Estate of Revis v. Revis, 484 S.E.2d 112, 116 

(S.C. Ct. App. 1997). Where a contract is found to be 

ambiguous, a court may look outside the four corners of the 

document to determine the intent of the parties. Id. 

Ambiguities should be construed against the drafter. See

Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 

1995).

In their briefs, the parties essentially dispute the 

applicability of two cases to the instant proceedings: Sucampo

and Drews Distrib., Inc. v. Silicon Gaming, Inc., 245 F.3d 347 

(4th Cir. 2001). Both of these cases found that two contracts 

were related for the purposes of ruling that a clause in one 

contract applied to the other. We find the instant case 

materially different from both Sucampo and Drews and conclude 

that the district court correctly found that the LPA is not 

governed by the forum-selection clause in the ICA. 

Specifically, unlike the instant case, the contract with the 

forum-selection clause in Sucampo was signed before the 

agreement at issue--an agreement specifically executed “under” 
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the first. See Sucampo, 471 F.3d at 546–47. And in Drews, the 

contract with the forum-selection clause included a merger 

clause specifically excepting the agreement at issue so it would 

remain in force. Drews, 245 F.3d at 348–49.

Here, besides the fact that BDD would only lease 

tractors to its own independent contractors, Ford’s ICA and LPA

are entirely separate. Moreover, the LPA does not reference a 

specific independent contractor agreement nor state that the LPA 

is governed by any such agreement; instead, the LPA merely (and 

somewhat ambiguously) states that Ford had to be working under 

contract with BDD in order for the LPA to be in effect. 

Furthermore, Ford’s ICA--the contract with the forum-selection 

clause--does not require or even mention a lease-to-purchase 

agreement, and the LPA was not explicitly executed pursuant to 

the ICA. 

BDD, the drafter of both contracts, did not attempt to 

incorporate the LPA into the ICA or except the LPA from the 

operation of the ICA’s merger clause. Given that the merger 

clause applies to the entirety of the “transaction contemplated 

by this Agreement,” the LPA must then be neither contemplated by

nor related to the Agreement. If it were, the merger clause’s 

failure to except the LPA would have voided the LPA, and neither 

party argues that the LPA was void. Finally, as the district 
7

court found, the language referencing a “contract agreement” in 

the LPA is ambiguous. 

Given the material differences between the instant 

case and Sucampo and Drews, and the fact that BDD drafted the 

agreements in question, the district court correctly ruled that 

the ICA’s forum-selection clause is not applicable to the 

current conflict arising out of the LPA. Accordingly, we 

affirm. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED