1

United States Court of Appeals,

Fifth Circuit.

No. 94-10463.

KEVLIN SERVICES, INC., Plaintiff-Appellant,

v.

LEXINGTON STATE BANK, Defendant-Appellee.

Feb. 27, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Kevlin Services, Inc. ("Kevlin"), appeals

the district court's granting of Defendant-Appellee Lexington State

Bank's ("Lexington") motion to dismiss. Kelvin argues that the

district court erred in failing to enforce a valid and enforceable

choice of forum provision in the contract between the parties

providing for venue in Dallas County, Texas. We REVERSE AND

REMAND.

I.

On May 24, 1993, Kevlin, a Texas corporation with its

principal place of business in Dallas County, Texas, and Lexington,

a banking institution organized and existing under the laws of the

State of North Carolina with its principal place of business in

Lexington, North Carolina, executed a contract in which Lexington

contracted with Kevlin to administer benefit services to Lexington

customers who participated in their "BanClub" program. In exchange

for Kevlin's services under the contract, Lexington was to promote
 

1Wilson v. Belin, 20 F.3d 644, 647-48 (5th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994)

(citing Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir.1990)). 

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the BanClub program to its customers and pay Kevlin a monthly fee

based on the total number of customers who participated in the

BanClub program. The pre-printed form contract contains a choice

of forum provision stating:

This contract shall be interpreted and construed in accordance

with the laws of the State of Texas. The legal venue of this

contract and any disputes arising from it shall be settled in

Dallas County, Texas.

Prior to the contract's effective date of October 1, 1993,

Lexington notified Kevlin that it was withdrawing its acceptance of

the contract.

On January 19, 1994, Kevlin filed suit in Dallas County, Texas

alleging breach of contract. On February 18, 1994, Lexington

removed the case to federal court on grounds of diversity.

Lexington filed a motion to dismiss for lack of personal

jurisdiction or, in the alternative, to transfer venue. The

district court dismissed the case on April 7, 1994 on the grounds

that Kevlin failed to adduce evidence of minimum contacts in the

State of Texas by Lexington to support the exercise of personal

jurisdiction, and that the choice of forum provision in the

contract was ambiguous. Kevlin subsequently filed a motion to

alter or amend the judgment which was denied on April 25, 1994.

II.

 We review de novo the district court's granting of a motion

to dismiss for lack of personal jurisdiction.1 The plaintiff bears
 

2Id.; see also Stuart v. Spademan, 772 F.2d 1185, 1192 (5th

Cir.1985). 

 

3Id. (citing Thompson v. Chrysler Motors Corp., 755 F.2d

1162, 1165 (5th Cir.1985)). 

 

4M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92

S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). 

 

5See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111

S.Ct. 1522, 1527, 113 L.Ed.2d 622 (1991). 

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the burden of establishing the court's personal jurisdiction over

the nonresident defendant.2 "When the district court rules on the

motion without an evidentiary hearing, the plaintiff may bear his

burden by presenting a prima facie case that personal jurisdiction

is proper."3

III.

Kevlin contends that the district court erred in dismissing

the case for lack of personal jurisdiction over Lexington because

the contract between Kevlin and Lexington contains a valid and

enforceable choice of forum provision. Specifically, Kevlin argues

that the language of the provision unambiguously states an

effective designation of an exclusive forum, and that because

Lexington signed the contract it is bound to the contract terms.

Therefore, Lexington has waived any objection to venue and personal

jurisdiction.

A forum selection provision in a written contract is prima

facie valid and enforceable unless the opposing party shows that

enforcement would be unreasonable.4 This rule also applies to form

contracts containing a choice of forum provision.5 Our review of

the language of the contract between Kevlin and Lexington reveals
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no ambiguity in the interpretation of the language of the choice of

forum provision. We find that the only reasonable interpretation

is that the law of the State of Texas applies and that proper venue

lies in Dallas County, Texas. Because Lexington has failed to

sufficiently prove that the enforcement of the choice of forum

provision would be unreasonable due to fraud or overreaching, we

find that the choice of forum provision validly contracts for venue

in Dallas County, Texas, thereby granting the district court

jurisdiction over Lexington. Accordingly, we find that the

district court erred in refusing to enforce the choice of forum

provision of the contract executed between Kevlin and Lexington and

in dismissing the case for lack of personal jurisdiction.

IV.

Because we find that the choice of forum provision contained

in the contract between Kevlin and Lexington is valid and

enforceable, we REVERSE the judgment of the district court and

REMAND for proceedings consistent with this opinion.