This opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 13

IN THE

SUPREME COURT OF THE STATE OF UTAH

ENERGY CLAIMS LIMITED,

Petitioner,

v.

CATALYST INVESTMENT GROUP LIMITED, TIMOTHY ROBERTS,

ARM ASSET-BACKED SECURITIES, S.A., CHARLES P. BAKER,

THOMAS DEPETRILLO, CHARLES BECKER, and ROBERT BEURET,

Respondents.

No. 20120156

Filed May 9, 2014

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake Dep’t

The Honorable Tyrone E. Medley

No. 090900505

Attorneys:

Jefferson W. Gross, Salt Lake City, for petitioner

Charles D. Shmerler, James H. Neale, Jami Mills Vibbert, 

James L. Barnett, and Darren G. Reid, Salt Lake City, for respondents 

Catalyst Investment Group Limited, Timothy Roberts, and 

ARM Asset-Backed Securities, S.A.

Reid W. Lambert and Anthony M. Grover, Salt Lake City, 

for respondents Christopher P. Baker, Thomas DePetrillo, 

Charles Becker, and Robert Beuret

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, 

JUSTICE PARRISH, and JUSTICE LEE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

INTRODUCTION

¶1 Energy Claims Limited (ECL), a British Virgin Islands 

company, filed suit in Utah district court, asserting a now defunct 
ENERGY CLAIMS v. CATALYST INVESTMENT

Opinion of the Court 

Utah corporation’s claims against that corporation’s former 

directors, Catalyst Investment Group Limited (Catalyst), 

Mr. Timothy Roberts, and ARM Asset-Backed Securities, S.A. 

(ARM). All of the defendants reside, or have their principal place of 

business, outside of Utah. The district court dismissed ECL’s claims 

against the former directors, Catalyst, and Mr. Roberts on the basis 

of forum non conveniens. It also dismissed the claims against ARM 

for improper venue based on a forum selection clause. The court of 

appeals affirmed these dismissals. 

¶2 We granted certiorari to consider (1) whether we should 

adopt a threshold choice-of-law inquiry before undertaking a forum 

non conveniens analysis; (2) whether the court of appeals erred in 

affirming dismissal of ECL’s claims against the directors, Catalyst, 

and Mr. Roberts for forum non conveniens; and (3) whether the 

court of appeals erred in affirming dismissal of ECL’s claims against 

ARM for improper venue. As discussed below, we decline ECL’s 

invitation to adopt the threshold choice-of-law test. But we 

nevertheless conclude that the court of appeals erred in affirming 

dismissal on the basis of forum non conveniens and on the basis of 

improper venue. Accordingly, we remand this case for further 

proceedings consistent with this opinion. 

BACKGROUND1

¶3 ECL is a British Virgin Islands company and has its 

principal place of business in Tortola, British Virgin Islands. It is the 

assignee of certain claims of Eneco, Inc. (Eneco), a now defunct Utah 

Corporation. Eneco incorporated under Utah law in 1991 and 

eventually focused its research and development on thermal chip 

technology. A group of lenders, referred to by the parties as the 

“2005 Noteholders,” provided millions of dollars in initial loans, 

which were secured by patent rights that Eneco had previously 

obtained.

¶4 In 2006, however, Eneco’s board of directors (Eneco’s 

Board), which then consisted of Mr. Harold Brown, Mr. Max 

Lewinsohn, Mr. Patrick Murrin, and Mr. Charles Becker, determined 

1 When reviewing a motion to dismiss, “we view the facts and 

construe the complaint in the light most favorable to the plaintiff and 

indulge all reasonable inferences in his favor.” Prows v. Pinpoint 

Retail Sys., Inc., 868 P.2d 809, 810 (Utah 1993) (internal quotation 

marks omitted). We accordingly recite the facts consistent with 

ECL’s complaint. 

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that Eneco would need an additional $5 million to develop a 

commercially viable product. To this end, Eneco engaged the 

services of Catalyst, a United Kingdom (UK) company whose 

principal place of business is in London, England. The result of this 

engagement was an agreement (Catalyst Agreement) for Catalyst to 

provide general corporate financial advice and to assist Eneco in the 

issuance of $40 million in convertible corporate bonds. Catalyst 

represented that it would raise a minimum of $5 million for Eneco by 

September 30, 2006. The Catalyst Agreement contained a forum 

selection and choice-of-law provision, which provided that the 

“[a]greement shall be governed by, and construed in accordance 

with the Laws of England, and the parties hereto submit to the 

exclusive jurisdiction of the Courts of England and Wales.” 

¶5 Catalyst further proposed that the bonds being sold to raise 

funds for Eneco would also benefit ARM, a joint-stock company 

incorporated under the laws of the Grand Duchy of Luxembourg 

and based principally in Luxembourg. Catalyst, acting as ARM’s 

agent, recommended that Eneco issue an investment bond, the C3 

Bond, that would in turn be made up of other bonds issued by Eneco 

and ARM. It further advised Eneco to form two subsidiaries: Eneco 

Assets, Ltd. (Eneco Assets) and Eneco Europe, PLC (Eneco Europe). 

Catalyst advised Eneco to sell the right to use Eneco’s patents in the 

UK to Eneco Assets. Eneco Europe would purchase shares of Eneco 

Assets, and Catalyst would in turn sell shares of Eneco Europe to 

third-party investors. Catalyst represented that this approach would 

raise the $5 million Eneco needed to develop its product. 

¶6 To facilitate this approach, Catalyst advised Eneco to 

convert the debt it owed to the 2005 Noteholders into equity. Eneco 

informed Catalyst, ARM, and Mr. Timothy Roberts—a UK resident 

and an executive director for Catalyst as well as a director and agent 

for ARM--that the 2005 Noteholders would be unlikely to go along 

with the conversion absent assurances of Catalyst’s success in raising 

funds for Eneco. Mr. Roberts accordingly provided written 

assurances that Catalyst had raised the $5 million necessary for 

Eneco. ECL alleges that these assurances were false and that, in 

reliance on these false assurances, Eneco treated the 2005 

Noteholders’ loans as having been converted to equity. 

¶7 In early 2007, Eneco’s Board became concerned when 

Catalyst failed to deliver the funds as promised. Eneco hired legal 

counsel in the UK to investigate Catalyst and others for fraud and 

breach of the Catalyst Agreement. In response, Catalyst, ARM, and 

Mr. Roberts approached Mr. Becker, a resident of Texas, to seek his 

cooperation in reconstituting Eneco’s Board in an effort to relieve 

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Opinion of the Court 

Catalyst and ARM of Eneco’s claims. Catalyst offered to pay 

Mr. Becker or his company $300,000 toward development of Eneco’s 

technology to secure his cooperation. ECL alleges that Catalyst, 

ARM, Mr. Roberts, and Mr. Becker then recruited Mr. Christopher 

Baker, Mr. Robert Beuret, and Mr. Thomas DePetrillo, who were 

each investment bankers familiar to Catalyst, as acceptable additions 

to Eneco’s Board. Mr. Baker and Mr. Beuret are both residents of 

Massachusetts, and Mr. DePetrillo is a resident of Rhode Island. 

Mr. Becker did not disclose to Eneco’s Board his agreement with 

Catalyst, ARM, and Mr. Roberts. 

¶8 Mr. Becker, Mr. Baker, Mr. DePetrillo, and Mr. Beuret 

(collectively, the Director Defendants) then secretly acquired proxies 

from Eneco’s shareholders to successfully reconstitute Eneco’s Board 

and gain a controlling vote.2 ECL alleges that, “once in control,” the 

Director Defendants sought “to accommodate their own interests 

and the interests of Catalyst, ARM and [Mr.] Roberts at the expense 

of Eneco.” Specifically, ECL alleges that the Director Defendants 

listed Eneco’s shares publicly, enriched themselves with fees, and 

declined to conduct a special shareholders meeting as required by 

law—all pursuant to a conspiracy financed by Catalyst, ARM, and 

Mr. Roberts. 

¶9 By late 2007, Eneco was in default to the 2005 Noteholders. 

Eneco had no means to cure the default, and its Board acknowledged 

that the previous conversion of the debt to equity was improper. 

Mr. Lewinsohn, acting through Maximillian & Co. (Maximillian), an 

English sole proprietorship, notified Eneco that the 2005 Noteholders 

had appointed Maximillian as their collateral agent. Maximillian 

then made a number of proposals to resolve the default favorably to 

Eneco and to reconstitute Eneco’s Board, all of which were rejected 

by the Defendant Directors. As a result, Mr. Lewinsohn and 

Mr. Murrin resigned as directors of Eneco. Further, Mr. Lewinsohn 

and Maximillian, on behalf of the 2005 Noteholders, began 

procedures to foreclose on Eneco’s patent rights. 

¶10 Also at this time, Eneco Europe went “into administration 

under the laws of the United Kingdom due to its insolvency.” This 

was apparently detrimental to Catalyst’s business reputation, so 

Catalyst sought to make Eneco Europe solvent again. ECL alleges 

that Mr. Roberts and Catalyst accomplished this effort by inducing 

2 With the addition of the Director Defendants, Eneco’s Board 

then consisted of Mr. Baker, Mr. Becker, Mr. Beuret, Mr. DePetrillo, 

Mr. Brown, Mr. Lewinsohn, and Mr. Murrin. 

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the Director Defendants, without consideration, to forgive Eneco 

Europe’s debt to Eneco. 

¶11 In early January 2008, the Director Defendants entered into 

an agreement with Catalyst, ARM, and Mr. Roberts (Subscription 

Agreement) in which ARM agreed to finance Eneco’s expected 

bankruptcy by purchasing $225,000 worth of shares in Eneco in 

return for a release of any prior commitment for ARM to provide 

funding to Eneco. The Subscription Agreement “supercede[d] and 

revoke[d]” any prior commitments from Catalyst, ARM, and 

Mr. Roberts. The Subscription Agreement contained a forum 

selection clause providing that “[a]ny dispute, controversy or claim 

arising out of or related to the agreement shall be brought 

exclusively before the courts of England [and] Wales.” It also 

contained a choice-of-law provision, which stated that the 

“agreement shall be governed by, and construed and enforced in 

accordance with the laws of England [and] Wales.” ECL alleges that 

the Director Defendants “essentially caused Eneco to release million 

dollar claims against the Defendants for fraud and breach of contract 

in exchange for $225,000.” 

¶12 Eneco subsequently filed for Chapter 11 bankruptcy in the 

United States Bankruptcy Court of the District of Utah. In June 2008, 

Eneco’s court-appointed trustee converted the case to a Chapter 7 

bankruptcy and liquidated Eneco’s assets. And in November 2008, 

the trustee assigned Eneco’s causes of action to ECL in exchange for 

$750,000. 

¶13 ECL then filed three claims in the Third Judicial District 

Court of Utah on January 9, 2009, including (1) a claim for breach of 

fiduciary duty against the Director Defendants; (2) a claim for civil 

conspiracy against the Director Defendants, Catalyst, ARM, and 

Mr. Roberts; and (3) a claim for aiding and abetting breaches of 

fiduciary duty against Catalyst, ARM, and Mr. Roberts. All of the 

parties named in the complaint reside, or have their principal place 

of business, outside of Utah. 

¶14 Catalyst and Mr. Roberts filed separate motions to dismiss 

ECL’s complaint based on forum non conveniens. ARM also moved 

to dismiss for lack of personal jurisdiction and improper venue 

based on the Subscription Agreement’s forum selection clause.3 The 

Director Defendants later joined in Catalyst’s and Mr. Roberts’s 

3 The district court did not reach ARM’s lack of personal 

jurisdiction claim, and it is not before us on appeal. 

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motion to dismiss on forum non conveniens grounds and consented 

to the jurisdiction of English courts. 

¶15 The district court granted the motions. It dismissed ECL’s 

claims against Catalyst, Mr. Roberts, and the Director Defendants for 

forum non conveniens. In so doing, it analyzed and balanced five 

factors to conclude that England is a more appropriate forum for this 

dispute: (1) the location of the parties; (2) the primary location of the 

fact situation creating the controversy; (3) the location of evidence 

and witnesses; (4) the enforceability of any judgment; and (5) the 

burden on the court of litigating matters that may be of limited local 

concern. 

¶16 The court also dismissed the claims against ARM for 

improper venue, concluding that the forum selection clause in the 

Subscription Agreement is sufficiently broad to encompass ECL’s 

tort claims. The court of appeals affirmed as to both motions to 

dismiss.4 We granted certiorari and have jurisdiction pursuant to 

section 78A-3-102(3)(a) of the Utah Code. 

STANDARD OF REVIEW

¶17 “On certiorari we review the decision of the court of 

appeals, not the decision of the trial court. In doing so, we review for 

correctness, giving the court of appeals’ conclusions of law no 

deference.”5 Additionally, we “apply the same standard of review 

used by the court of appeals.”6

ANALYSIS

¶18 We first consider ECL’s proposal that we adopt a choice-oflaw inquiry as a threshold to our forum non conveniens analysis. 

Next, we consider whether the court of appeals erred in affirming 

dismissal as to the Director Defendants, Catalyst, and Mr. Roberts 

for forum non conveniens. Finally, we consider whether the court of 

appeals correctly upheld the dismissal of ARM based on the forum 

selection clause in the Subscription Agreement. 

I. WE REJECT ECL’S PROPOSED THRESHOLD CHOICE-OF-LAW 

INQUIRY BECAUSE IT IS INCONSISTENT WITH THE NEED TO 

4 Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2012 UT App 32, 

¶ 55, 275 P.3d 257. 

5 Grand Cnty. v. Rogers, 2002 UT 25, ¶ 6, 44 P.3d 734 (internal 

quotation marks omitted). 

6 Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 855 (Utah 1998). 

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RETAIN FLEXIBILITY IN OUR FORUM NON CONVENIENS 

ANALYSIS

¶19 ECL invites us to adopt a threshold choice-of-law inquiry 

that would require Utah courts to first determine whether Utah law 

applies to a given dispute and, if so, bar dismissal on forum non 

conveniens grounds without undertaking a forum non conveniens

analysis. ECL’s proposed test comes from the Tenth Circuit. In 

Gschwind v. Cessna Aircraft Co., the Tenth Circuit stated that “[t]here 

are two threshold questions in the forum non conveniens 

determination: first, whether there is an adequate alternative forum

. . . and second, whether foreign law applies. If the answer to either 

of these questions is no, the forum non conveniens doctrine is 

inapplicable.”7 The first prong of the threshold test is 

uncontroversial. All courts consider the availability of an adequate 

alternative forum at the outset of a forum non conveniens analysis.8

¶20 The Tenth Circuit goes a step further, however, by requiring 

a second threshold determination that foreign law applies to the 

dispute. It is apparently the only federal circuit court to require this 

threshold determination in cases not governed by federal statutes.9

And even when a federal statute does govern the dispute, not all 

circuits require the threshold determination.10 We decline to follow 

7 161 F.3d 602, 605–06 (10th Cir. 1998) (citations omitted). 

8 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (“At the 

outset of any forum non conveniens inquiry, the court must determine 

whether there exists an alternative forum.”); see also Kish v. Wright, 

562 P.2d 625, 627–28 (Utah 1977) (stating “that the pre-requisite 

required [for forum non conveniens] is that another alternate, 

available forum is still open to the plaintiff”).

9 See Lonny Sheinkopf Hoffman & Keith A. Rowley, Forum Non 

Conveniens in Federal Statutory Cases, 49 EMORY L.J. 1137, 1182 (2000) 

(analyzing federal approaches to forum non conveniens in disputes

governed by federal statute and recognizing that the Tenth Circuit 

has gone a step beyond other courts by “requiring a finding that 

foreign law governs as a prerequisite to conducting [a forum non 

conveniens analysis]—even in non-federal statutory cases” (footnote 

omitted)). 

10 See, e.g., Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 

1002 (2d Cir. 1993) (citation omitted) (“While . . . United States courts 

have an interest in enforcing United States securities laws, this alone 

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the Tenth Circuit and instead conclude that ECL’s proposed test is 

inconsistent with the need to retain flexibility in the forum non 

conveniens analysis. 

¶21 Our decision on this point is supported by the United States

Supreme Court’s analysis in Piper Aircraft Company v. Reyno.11 In 

Piper, the Supreme Court held that “the possibility of an unfavorable 

change in law should not, by itself, bar dismissal” on forum non 

conveniens grounds.12 The case involved a wrongful-death action 

stemming from a plane crash in Scotland.13 The plane and its 

propellers were manufactured in the United States, and the plaintiff 

filed suit in California because United States tort law was more 

favorable than Scotland’s.14

¶22 After the case was transferred to Pennsylvania, the 

defendants moved to dismiss for forum non conveniens, and the 

district court concluded that Scotland provided a more appropriate 

forum for the dispute.15 The Third Circuit reversed. It determined 

that dismissal for forum non conveniens was inappropriate if it 

worked a change in the applicable law unfavorable to the plaintiff.16

The Supreme Court disagreed and concluded that “[t]he possibility 

of a change in substantive law should ordinarily not be given 

does not prohibit them from dismissing a securities action on the 

ground of forum non conveniens.”). 

11 454 U.S. at 238. While federal authority of course does not 

control our decision in this case, we consider it highly persuasive 

given our sparse case law on the doctrine of forum non conveniens. 

Since we first applied the doctrine in Mooney v. Denver & R.G.W.R. 

Co., 221 P.2d 628 (Utah 1950), we have only revisited the issue twice.

See Summa Corp. v. Lancer Indus., Inc., 559 P.2d 544 (Utah 1977); Kish, 

562 P.2d 625. In both instances, we cited heavily to federal authority. 

See, e.g., Summa, 559 P.2d at 546 (citing the United States Supreme 

Court’s decision in Gulf Oil v. Gilbert, 330 U.S. 501 (1947), for the 

appropriate factors to consider when conducting a forum non 

conveniens analysis).

12 Piper, 454 U.S. at 238. 

13 Id. at 238–40. 

14 Id. at 240. 

15 Id. at 241. 

16 Id. at 246. 

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conclusive or even substantial weight in the forum non conveniens

inquiry.”17

¶23 ECL correctly points out that Piper addressed the issue of a 

change in law incident to a change in forum—not whether dismissal 

is appropriate when the plaintiff files in a forum whose law applies. 

But Piper applies persuasively to both situations. First, Piper 

recognized that “[i]f substantial weight were given to the possibility 

of an unfavorable change in law, . . . dismissal might be barred even 

where trial in the chosen forum was plainly inconvenient.”18 The 

same is true for ECL’s proposed test. Dismissal would be barred 

whenever Utah law applies to the dispute, regardless of whether 

litigation in the chosen forum was plainly inconvenient. 

¶24 Second, Piper emphasized the need to “retain flexibility” in 

the forum non conveniens analysis and to avoid rigid rules: “[i]f 

central emphasis were placed on any one factor, the forum non 

conveniens doctrine would lose much of the very flexibility that 

makes it so valuable.”19 This point is also true for ECL’s proposed 

test. If Utah law applies to a dispute, then ECL’s threshold test 

would prevent us from considering any other factor that might 

weigh strongly in favor of litigating the dispute in another 

jurisdiction. This is the very rigidity that Piper rejected. 

¶25 Finally, Piper recognized that “if conclusive or substantial 

weight were given to the possibility of a change in law, the forum non 

conveniens doctrine would become virtually useless” because 

plaintiffs ordinarily “select that forum whose choice-of-law rules are 

most advantageous.”20 Likewise, our forum non conveniens analysis 

will lose much of its application under ECL’s proposed test because 

many disputes—like the instant case—are governed by choice-of-law 

provisions. If one such provision favored Utah law, we would be 

unable to dismiss under ECL’s threshold test regardless of how 

inconvenient litigation in Utah might be. For all these reasons, we 

conclude that ECL’s proposed threshold test is inconsistent with the 

need to maintain flexibility in the forum non conveniens analysis 

and accordingly decline to adopt it. 

17 Id. at 247. 

18 Id. at 249. 

19 Id. at 249–50. 

20 Id. at 250. 

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II. THE COURT OF APPEALS FAILED TO GIVE ADEQUATE 

DEFERENCE TO ECL’S CHOICE OF FORUM AND FAILED TO 

BALANCE ECL’S POTENTIAL BURDEN OF HAVING TO 

LITIGATE IN ENGLAND

¶26 “An evaluation of a motion to dismiss on the grounds of 

forum non conveniens proceeds in several stages.”21 At the first stage, 

courts must determine whether the plaintiff’s choice of forum is 

entitled to deference.22 Next, courts “determine whether an adequate 

alternative forum exists.”23 If an adequate alternative forum exists, 

courts then proceed to the final stage “and balance factors of 

[convenience] to decide, based on weighing the relative hardships 

involved, whether the case should be adjudicated in the plaintiff’s 

chosen forum or in the alternative forum suggested by the 

defendant.”24

¶27 We review a dismissal on forum non conveniens grounds 

for an abuse of discretion.25 We reverse only if (1) “the district court 

relied on an erroneous conclusion of law” or (2) “there was no 

evidentiary basis for [its] ruling.”26 While this standard is highly 

deferential, it requires us to reverse when a lower court fails to 

“follow the governing legal standards.”27

¶28 ECL argues that reversal is appropriate in this case because 

the court of appeals failed to follow the governing legal standard in 

affirming the district court’s dismissal for forum non conveniens. It 

argues that the court of appeals (1) gave too little deference to its 

choice of forum and (2) failed to consider its potential burden of 

having to litigate in England.28 We discuss these points in turn and 

21 Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d 

Cir. 2003).

22 Id. 

23 Id. 

24 Id. 

25 Kish v. Wright, 562 P.2d 625, 628 (Utah 1977). 

26 Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 

957 (internal quotation marks omitted). 

27 Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en 

banc). 

28 ECL presents three additional arguments in support of its claim 

that the court of appeals erred in affirming dismissal on the basis of 

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conclude that the court of appeals erred both in assigning less 

deference to ECL’s choice of forum than it would were ECL a Utah 

corporation and in failing to properly consider and balance its 

potential burden of having to litigate in England. Having clarified 

the applicable legal standard, we leave the final decision as to the 

appropriate outcome of the forum non conveniens analysis to the 

district court on remand. But to assist the court in this respect, we 

offer some instruction on the convenience factors we articulated in 

Summa Corporation v. Lancer Industries, Inc.29

A. Because This Case Has a Bona Fide Connection to Utah, the Court of 

Appeals Erred in Assigning Less Deference to ECL’s Choice of Forum

¶29 The court of appeals concluded that “courts typically afford 

significantly less deference to the choice of forum by a foreign 

plaintiff” than to a resident plaintiff because that choice “is not 

obviously convenient.”30 But ECL contends that, because it is 

asserting the claims of a Utah corporation in Utah, the court of 

appeals erred in affording less deference to its choice of forum. We 

agree. 

¶30 As a general matter, a plaintiff’s choice of forum is entitled 

to deference when the plaintiff has brought suit in its home 

jurisdiction.31 A foreign plaintiff who sues in the United States, 

however, is generally entitled to less deference.32 But these general 

forum non conveniens. First, it argues that the evidence of 

inconvenience to the Director Defendants, Catalyst, and Mr. Roberts 

was inadequate and that, more specifically, the court of appeals 

erred by looking to ECL’s complaint for evidence of inconvenience. 

Second, it contends that the court of appeals’ decision conflicts with 

the Open Courts provision in the Utah Constitution. And finally, it 

claims that, even if dismissal was appropriate as to Catalyst and 

Mr. Roberts, the court of appeals erred in not requiring the district 

court to allow ECL to proceed against the Director Defendants in 

Utah. Because we base our decision on the legal errors discussed 

above, we decline to reach these arguments.

29 559 P.2d 544 (Utah 1977). 

30 Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2012 UT App 32, 

¶ 29, 275 P.3d 257.

31 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 & 256 n.23

(1981); Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 

(1947). 

32 Piper, 454 U.S. at 255–56. 

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rules do not address the unique issue presented in this case: a 

foreign plaintiff asserting the claims of a Utah corporation in that 

corporation’s home jurisdiction. 

¶31 For guidance on this issue, we turn to the Second Circuit’s 

decision in Iragorri v. United Technologies Corp. There, the court 

addressed the level of deference required for a United States

plaintiff’s choice of forum in a United States district other than that 

of the plaintiff’s home district.33 The court explained that the general 

rules of deference discussed above are based on the idea that “a 

plaintiff’s choice of her home forum . . . is presumed to be 

convenient.”34 The same is not true for a foreign plaintiff, whose 

choice of a United States forum is more likely related to reasons that 

have nothing to do with convenience, such as forum shopping for 

higher damages awards.35 But the court rejected the idea that 

“deference is given to the plaintiff’s choice of forum only when the 

plaintiff sues in the plaintiff’s home district” and warned against 

using citizenship as a “proxy” for convenience.36

¶32 It determined instead that the general rules of deference 

outlined above stand for a broader principle “that we give greater 

deference to a plaintiff’s forum choice to the extent that it was 

motivated by legitimate reasons.”37 It concluded:

the greater the plaintiff’s or the lawsuit’s bona fide 

connection . . . to the forum of choice and the more it 

appears that considerations of convenience favor the 

conduct of the lawsuit in the United States, the more 

difficult it will be for the defendant to gain dismissal 

for forum non conveniens.38

¶33 We agree with the Second Circuit’s reasoning and 

accordingly analyze whether ECL’s choice of Utah as its forum for 

litigating its claims was motivated by legitimate reasons. Iragorri tells 

us that one such legitimate reason is the “plaintiff’s or the lawsuit’s 

33 274 F.3d at 71. 

34 Id. 

35 Id. 

36 Id. at 72, 74.

37 Id. at 73. 

38 Id. at 72 (footnotes omitted). 

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bona fide connection . . . to the forum of choice.”39 Here, ECL, as a 

British Virgin Islands company, did not have the option of bringing 

suit in its home jurisdiction of Tortola because that jurisdiction had 

no connection to the facts of this case. After Eneco went into 

bankruptcy and ECL purchased its claims, ECL was forced to choose 

between Utah and England as the jurisdictions with the strongest 

factual connections to Eneco’s claims. It was entirely reasonable and 

legitimate for ECL to select Utah as its forum of choice. Utah was, 

after all, Eneco’s home jurisdiction and presumably the jurisdiction 

Eneco itself would have chosen if it were suing on its own behalf. 

We accordingly conclude that ECL’s choice of Utah is entitled to 

deference given ECL’s lawsuit’s bona fide connection to Utah. 

¶34 Another factor that “necessarily affects a plaintiff’s choice of 

forum is the need to sue in a place where the defendant is amenable 

to suit.”40 In selecting its forum, ECL was faced with the task of 

securing personal jurisdiction over both the Catalyst Defendants and 

the Director Defendants, whose residences and principal places of 

business are scattered among London, Luxembourg, Massachusetts, 

Rhode Island, and Texas. At the outset of litigation, Utah appeared 

to be the only jurisdiction in which ECL could properly sue all the 

defendants.41 Therefore, ECL’s choice of Utah is also legitimate and 

entitled to deference on the ground that it appeared necessary to sue 

here to obtain jurisdiction over both the Catalyst and Director 

Defendants. We accordingly conclude that the court of appeals failed 

to give adequate deference to ECL’s selection of Utah as its forum of 

choice. 

B. The Court of Appeals Failed to Properly Consider and Balance ECL’s 

Potential Burden of Having to Litigate in England

¶35 The appropriate level of deference for a plaintiff’s choice of 

forum is merely the first step in the forum non conveniens analysis. 

Regardless of the level of deference due, courts must still analyze 

and weigh the convenience factors we set forth in Summa.42 ECL 

39 Id. 

40 Id. 

41 The defendants later consented to jurisdiction in England for 

purposes of their motions to dismiss. 

42 See id. at 73 (“The deference given to a plaintiff’s choice of 

forum does not dispose of a forum non conveniens motion. It is only 

the first level of inquiry. Even after determining whether the 

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Opinion of the Court 

challenges the court of appeals’ analysis of the Summa factors on the 

ground that it failed to properly analyze and consider ECL’s 

potential burden of having to reinstate its suit in England. Again, we 

agree. 

¶36 In Summa, we outlined five factors to guide a court’s forum 

non conveniens analysis.43 These factors include (1) “the location of 

the primary parties”; (2) the location “where the fact situation 

creating the controversy arose”; (3) “the ease of access to proof, 

including the availability and costs of obtaining witnesses”; (4) “the 

enforceability of any judgment that may be obtained”; and (5) “the 

burdens that may be imposed upon the court in question in litigating 

matters which may not be of local concern.”44 These factors, 

however, are not exclusive.45 We stress again that the forum non 

conveniens analysis is a flexible one and should take account of all 

relevant considerations.46

¶37 Even in Summa we recognized that, in addition to the five 

factors outlined above, courts must take into account the practical 

burden plaintiffs will face in filing a new action after dismissal for 

forum non conveniens.47 Although we did not explain exactly how 

consideration of the plaintiff’s burden should factor into the overall 

analysis, we now clarify that it should be considered as one of the 

relevant factors in the overall balance of convenience. In Summa, for 

example, we balanced the defendant’s alleged inconvenience of 

having to litigate in Utah—“the logistics of arranging for testimony, 

and/or depositions of witnesses from Florida and California”—

against the plaintiff’s burden of “again going through [the] total 

process in another state” of “engaging counsel [and] initiating and 

plaintiff’s choice is entitled to more or less deference, a district court 

must still conduct the analysis [of the convenience factors].”). 

43 559 P.2d at 546. 

44 Id. 

45 See id. (stating that the five factors are merely “among the 

factors proper to be considered”). 

46 Piper, 454 U.S. at 249–50. 

47 Summa, 559 P.2d at 547; see also Pollux, 329 F.3d at 75 (stating 

that courts must “weigh defendant’s hardships if jurisdiction is 

retained in the forum of plaintiff’s choice against plaintiff’s 

hardships if the motion to dismiss is granted and plaintiff is forced 

to begin suit anew in a different forum”). 

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getting the action under way.”48 This is consistent with the approach 

taken by the majority of federal courts that “a plaintiff’s financial 

hardships . . . [are] one factor to be weighed in determining the 

balance of convenience.”49 Accordingly, the court of appeals should 

have analyzed whether the district court properly considered and 

balanced ECL’s potential burden of having to litigate in England. 

¶38 ECL alleges that, if forced to litigate in England, it would 

(1) be deprived of its choice of counsel and ability to pursue its 

claims on a contingent fee basis; (2) lose its claim under Utah law for 

punitive damages; and (3) need to post a bond sufficient to cover the 

defendants’ attorney fees. Although the district court properly 

recognized that it should weigh the Summa factors against 

considerations favoring ECL in its forum non conveniens analysis, it 

never specifically analyzed or balanced ECL’s alleged hardships. 

And the court of appeals discussed ECL’s burden exclusively in 

terms of whether “England is an inadequate alternative forum” or 

whether “ECL [could] obtain an enforceable judgment in the English 

courts.”50 But, as discussed above, the adequacy of England as an 

alternative forum is a separate inquiry distinct from the question of 

ECL’s potential burden, which should be considered as a single 

factor in the overall convenience analysis.51 The court of appeals 

accordingly erred in failing to properly consider and balance ECL’s 

alleged burden.

C. Instructions for Remand

¶39 While we leave it to the district court on remand to 

reexamine the defendants’ motion to dismiss for forum non 

conveniens in light of the clarifications we make above, we take the 

opportunity to make two points concerning the convenience factors 

we articulated in Summa. First, in analyzing the third Summa factor—

“the ease of access to proof”52—both the district court and the court 

48 Summa, 559 P.2d at 547. 

49 See Murray v. British Broad. Corp., 81 F.3d 287, 292 (2d Cir. 1996) 

(discussing federal authority and concluding that a majority of 

courts treat the plaintiff’s financial hardship as one factor to be 

weighed in the balance of convenience). 

50 Energy Claims, 2012 UT App 32, ¶ 43.

51 Murray, 81 F.3d at 292 (stating that plaintiff’s financial hardship 

should be weighed as a single factor “after the court determines that 

an alternative forum is available”). 

52 Summa, 559 P.2d at 546. 

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of appeals commented on the location of documentary evidence.53

We clarify that the location of documentary evidence is of little 

relevance to the overall forum non conveniens analysis. Given that in 

today’s world litigants can easily transport electronic documents to 

virtually any forum of litigation, the location of documentary 

evidence will rarely, if ever, tip the scale of convenience in favor of a 

given jurisdiction.

¶40 Next, both the district court and the court of appeals 

analyzed the fifth Summa factor—“the burdens that may be imposed 

upon the court in question in litigating matters which may not be of 

local concern”54—and concluded that “the court and the citizens of 

Utah would be taking on . . . what amounts to an enormous burden 

of time, expense and resources to maintain this litigation” in light of 

the “minimal local interest” involved.55 We clarify now that the 

relevance of this factor hinges on the level of deference afforded the 

plaintiff’s choice of forum. If a plaintiff chooses Utah for legally 

legitimate reasons, as we have concluded ECL has done here, then 

the burden on the court in question carries little weight. 

¶41 Thus, if the plaintiff can offer legally legitimate reasons for 

selecting Utah as the forum of choice and has established personal 

jurisdiction over the defendant, that is sufficient to outweigh any 

burden the courts or citizens of Utah might face in litigating the 

matter. With these clarifications, we remand to the district court for 

further analysis of the defendants’ motion to dismiss for forum non 

conveniens. 

III. IF THE DISTRICT COURT DETERMINES THAT THE FORUM 

SELECTION CLAUSE IS ENFORCEABLE, IT SHOULD INCLUDE 

THE CLAUSE AS AN ADDITIONAL FACTOR IN ITS FORUM 

NON CONVENIENS ANALYSIS

¶42 In addition to the factors discussed above, there is another

wrinkle in this case, as one of the defendants, ARM, relies upon a 

forum selection clause in its opposition to ECL’s choice of forum. We 

will now consider what role this clause should play in the district 

court’s forum non conveniens analysis.

53 Energy Claims, 2012 UT App 32, ¶ 34. 

54 Summa, 559 P.2d at 546.

55 Energy Claims, 2012 UT App 32, ¶ 44 (alteration in original) 

(internal quotation marks omitted). 

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¶43 The court of appeals concluded that the plain language of 

the forum selection clause in the Subscription Agreement 

encompassed ECL’s tort claims against ARM.56 It also concluded that 

the district court did not exceed its discretion in enforcing the forum 

selection clause and sending ECL’s claims against ARM to 

England.57 The court of appeals’ decision on this point was 

influenced heavily by its forum non conveniens ruling that would 

have sent ECL’s claims against the Director Defendants, Catalyst, 

and ARM to England as well. The court stated that “[a] refusal to 

enforce the forum selection clause in the Subscription Agreement 

would have resulted in multiple litigations in separate 

jurisdictions.”58 That is, ECL would have had to proceed against 

ARM in Utah and against all the other defendants in England. 

According to the court of appeals, that result was unacceptable 

because it would “increase[] the cost of litigation” and “contravene[] 

the objective of modern procedure, which is to litigate all claims in 

one action if . . . possible.”59

¶44 Our decision above to remand the forum non conveniens 

issue to the district court for a reevaluation of the convenience 

factors, however, renders the court of appeals’ concerns hypothetical 

at this point. Depending on the outcome of the district court’s forum 

non conveniens analysis—which, as explained below, should also 

include consideration of the forum selection clause in ARM’s 

contract—ECL’s claims against the Director Defendants, Catalyst, 

and Mr. Roberts could either remain in Utah or be sent to England. 

But the court of appeals’ concerns are nevertheless well founded. 

Our decision as to the scope of the forum selection clause—one way 

or the other—could force ECL to litigate in both Utah and England, 

just as the court of appeals feared. Nevertheless, despite the fact that 

modern rules of procedure look unfavorably upon bifurcating trials 

between two jurisdictions—particularly where those trials are based 

upon the same set of operative facts—we conclude that the district 

court should have the discretion to reach such a result based on the 

outcome of its forum non conveniens analysis. We also conclude 

that, if enforceable, ARM’s forum selection clause should be weighed 

56 Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2012 UT App 32, 

¶ 51, 275 P.3d 257. 

57 Id. ¶ 53.

58 Id. 

59 Id. (internal quotation marks omitted). 

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Opinion of the Court 

in the district court’s forum non conveniens analysis. Accordingly, 

we conclude as follows regarding ARM’s forum selection clause.

A. The Court of Appeals Did Not Err in Its Conclusion that the Forum 

Selection Clause Includes the Tort Claims

¶45 The clause at issue here governs “any dispute, controversy 

or claim” that is “related to” the parties’ contract.60 Both the district 

court and the court of appeals determined that this broad language, 

particularly the use of the term “any,” does not support a distinction 

between contract claims and tort claims. We agree. As the court of 

appeals observed, “ECL’s cause of action for breach of fiduciary duty 

is based on terms embodied in the [contract.]”61 Accordingly, ECL’s 

claims clearly “relate to” the contract and fall within the broad 

category of “any dispute, controversy or claim.” Thus, we agree with 

the court of appeals’ conclusion that the forum selection clause is 

sufficiently broad to cover the tort claims.

B. Prior to Including the Forum Selection Clause in Its Forum Non 

Conveniens Analysis, the District Court Must Determine Whether It Is

Enforceable

¶46 Nevertheless, even if the forum selection clause’s scope is 

broad enough to encompass ECL’s claims, before the district court 

can include the forum selection clause in its forum non conveniens 

analysis, it must first address the issue of whether that clause is 

enforceable. ECL argues that the contract itself, including the forum 

selection clause, is unenforceable because it was the product of a 

civil conspiracy. Typically, on a motion to dismiss “we assume that 

the factual allegations in the complaint are true and we draw all 

reasonable inferences in the light most favorable to the plaintiff.”62

We have also suggested that this standard may apply even where 

the motion to dismiss is brought for lack of jurisdiction.63 Under this 

60 Energy Claims, 2012 UT App 32, ¶ 51 (internal quotation marks 

omitted).

61 Id. ¶ 50.

62 Berneau v. Martino, 2009 UT 87, ¶ 3, 223 P.3d 1128 (internal 

quotation marks omitted).

63 In the case of In re Uintah Basin, we reviewed a district court’s 

dismissal for lack of subject matter jurisdiction and noted that the 

factual allegations taken from the petitioner’s compliant “must be 

deemed true” and that “this court must consider all reasonable 

inferences to be drawn therefrom in a light most favorable to 

[petitioner].” 2006 UT 19, ¶ 14 n.7, 133 P.3d 410. Nevertheless, in that 

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standard, it could be argued that ECL’s allegation of civil conspiracy 

would be sufficient to render the forum selection clause 

unenforceable. This issue—whether an allegation of civil conspiracy, 

standing alone, is sufficient to render a forum selection clause 

unenforceable—is a question of first impression for our court. For 

the reasons stated below, we conclude that the district court should 

analyze the forum selection clause based upon the standard 

articulated below, holding an evidentiary hearing, if necessary. 

Then, depending on the outcome of its analysis, the district court 

should include an assessment of the forum selection clause as a 

factor in its forum non conveniens analysis.

1. We Adopt the Minority Position Regarding the Issue of How a 

District Court Should Treat Allegations of Fraud in the Face of a 

Contract Containing a Forum Selection Clause

¶47 We have accepted the general principle that forum selection 

clauses are enforceable and can limit a court’s jurisdiction. This 

principle was adopted in Prows v. Pinpoint Retail Systems, Inc., where 

we adopted section 80 of the Second Restatement of Conflict of 

Laws: “The parties’ agreement as to the place of the action will be 

given effect unless it is unfair or unreasonable.”64 Under this 

principle, forum selection clauses that “have been obtained through 

freely negotiated agreements and are not unreasonable and unjust” 

will be upheld as valid.65 The party opposing enforcement of the 

clause “bears the burden of proving that enforcing the clause is 

unfair or unreasonable,” or “that (1) the choice-of-forum provision 

was ‘obtained by fraud, duress, the abuse of economic power, or 

other unconscionable means’; or (2) the courts of the chosen state 

‘would be closed to the suit or would not handle it effectively or 

case we also looked to other factual allegations outside the 

complaint, as “set forth by the United States in its answer and 

counterclaim filed in the federal court and attached as an addendum 

to its brief.” Id. Furthermore, Uintah Basin did not involve a forum 

selection clause. Thus, to the extent that footnote 7 of Uintah Basin is 

inconsistent with the standard we articulate today, we repudiate it. 

64 868 P.2d 809, 812 (Utah 1993) (quoting RESTATEMENT (SECOND)

OF CONFLICT OF LAWS § 80 (Supp. 1988)).

65 Phone Directories Co. v. Henderson, 2000 UT 64, ¶ 15 n.9, 8 P.3d 

256 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14

(1985)) (internal quotations marks omitted).

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Opinion of the Court 

fairly.’”66 Thus, we have adopted both the general principle that 

forum selection clauses are enforceable and that there are exceptions

to that principle.67

¶48 We have not directly addressed, however, what a plaintiff 

must allege or prove to prevent enforcement of a forum selection 

clause where it is claimed that the clause was “obtained by fraud, 

duress, the abuse of economic power, or other unconscionable 

means.”68 Accordingly, we will look to our sister states for guidance 

regarding this issue.69

¶49 Other jurisdictions have adopted two ways of dealing with 

the issue of a forum selection clause that is contained within an 

allegedly fraudulent contract.70 The first, and the majority 

66 Prows, 868 P.2d at 812 n.5 (quoting RESTATEMENT (SECOND) OF 

CONFLICT OF LAWS § 80 cmt. c (Supp. 1988)).

67 There is a difference under Utah law between enforcing a 

forum selection clause against plaintiffs and defendants. Generally, 

when filing in another state is required by the parties’ agreement,

plaintiffs are barred from bringing suit in a Utah court unless they 

can prove one of the listed exceptions. As against a defendant, a 

forum selection clause requiring that a case be filed in Utah creates a 

presumption that a Utah court has jurisdiction over a defendant as 

long as the defendant cannot prove one of the exceptions and there is 

a “rational nexus between the forum selected . . . and either the 

parties to the contract or the transactions that are the subject matter 

of the contract.” Henderson, 2000 UT 64, ¶ 14.

68 Prows, 868 P.2d at 812 n.5 (internal quotation marks omitted).

69 State v. Montiel, 2005 UT 48, ¶ 15, 122 P.3d 571 (observing that 

“[b]ecause Utah case law is not fully developed on this issue, we 

look to the case law from other jurisdictions for guidance” (internal 

quotation marks omitted)).

70 ECL did not raise a fraud claim in its complaint but instead 

claimed that Catalyst, the board members, and ARM entered into the 

contract through “unconscionable means” in furtherance of a civil 

conspiracy. The tortious conduct or “unconscionable means” alleged 

by ECL here is the defendants’ breach of their fiduciary duties. Still, 

ECL’s claim is analogous to the fraud cases we cite herein because 

ECL is likewise claiming that the clause was obtained through 

improper means. The fraud cases are largely based in contract, and 

ECL’s claim is premised on allegedly tortious conduct, but the 

exception we adopted in Prows encompasses both types of claims, 

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approach,71 is to require the plaintiff to make a specific claim, 

supported by evidence, “show[ing] that the forum-selection clause 

itself was procured through fraud.”72 This is the approach adopted 

by California, Texas, and the Fifth and Tenth Circuits,73 and it seems 

since it relates to the issue of “overreaching” generally. See Prows, 

868 P.2d at 812 n.5 (“A party might also show that . . . the choice-offorum provision was ‘obtained by fraud, duress, the abuse of 

economic power, or other unconscionable means.’” (quoting 

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 80, cmt. c (Supp. 

1988)); Pohl, Inc. of America v. Webelhuth, 2008 UT 89, ¶ 29, 201 P.3d 

944 (noting that a civil conspiracy claim is a “separate and distinct 

cause[] of action” but that it may be premised on tortious conduct). 

So although we largely cite cases which discuss forum selection 

clauses obtained by “fraud,” our analysis applies equally to all 

allegations of overreaching that we referred to in Pohl, including 

those of ECL.

71 Edge Telecom, Inc. v. Sterling Bank, 143 P.3d 1155, 1162 (Colo. Ct. 

App. 2006) (observing that “every other court to have addressed this 

issue has agreed that, to render a forum selection clause 

unenforceable, the party seeking to avoid the clause must show that 

the clause itself was procured by fraud” (emphasis added) (citing 

cases)); see also Michael D. Moberly & Carolyn F. Burr, Enforcing 

Forum Selection Clauses in State Court, 39 SW. L. REV. 265, 282 (2009) 

(discussing Colorado’s adoption of this approach as the “view taken 

by most other courts”).

72 In re Harris Corp., No. 03-13-00192-CV, 2013 WL 2631700, at *5

(Tex. Ct. App. June 4, 2013).

73 See AMS Staff Leasing NA, Inc. v. Superior Court, No. G032507, 

2004 WL 1435928, at *2 (Cal. Ct. App. June 28, 2004) (unpublished) 

(“[A] claim of fraudulent inducement does not defeat [a forum 

selection clause] unless the fraud claim constitutes a separate and 

distinct challenge to the . . . clause itself.” (internal quotation marks 

omitted)); Holeman v. Nat’l Bus. Inst., Inc., 94 S.W.3d 91, 102 (Tex. 

App. 2002) (“[A] court determining whether or not to enforce a 

forum selection clause will not inquire into the enforceability of the 

contract in which that clause is found.”) (abrogation on other 

grounds recognized by Diamond Offshore (Bermuda), Ltd. v. Haaksman, 

355 S.W.3d 842, 846 (Tex. App. 2011)); Haynsworth v. Corporation, 121 

F.3d 956, 963 (5th Cir. 1997) (“Fraud and overreaching must be 

specific to a forum selection clause in order to invalidate it.”); Riley v. 

Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir. 1992) 

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Opinion of the Court 

to stem from the Supreme Court’s decision in M/S Bremen v. Zapata 

Off-Shore Co.74 The best example of this approach was explained in 

Afram Carriers, Inc. v. Moeykens, where the Fifth Circuit observed that 

“[a]llegations that the entire contract was procured as the result of 

fraud or overreaching are inapposite to our [forum-selection clause]

enforceability determination, which must . . . precede any analysis of 

the merits [of the contract’s validity].”75 Instead, the party is required 

to make “a showing that the clause results from fraud or 

overreaching.”76

¶50 The reasoning for this approach was explained by the Texas 

Court of Appeals:

A party cannot avoid enforcement of a forumselection clause by asserting that the contract 

containing the clause was procured through fraud. As 

one court explained, [t]o allow a party to avoid its 

obligations under a presumptively valid contract with 

a prima facie valid forum-selection clause simply 

because the party might carry its burden at trial would 

give the party an end run around the presumption 

that the forum-selection clause is enforceable.77

In other words, the majority approach is tailored to dispel the fear 

that a party could avoid the enforcement of a forum selection clause 

“by merely alleging fraud or coercion in the inducement of the 

contract at issue.”78 Thus, under this approach, all forum selection 

(“A plaintiff seeking to avoid a choice provision on a fraud theory 

must . . . plead fraud going to the specific provision.”).

74 407 U.S. 1, 15 (1972) (“The correct approach would have been to 

enforce the forum clause specifically unless Zapata could clearly show 

that enforcement would be unreasonable and unjust, or that the 

clause was invalid for such reasons as fraud or overreaching.”

(emphases added)).

75 145 F.3d 298, 301 (5th Cir. 1998) (alterations in original)

(emphasis added) (internal quotation marks omitted).

76 Id.

77 In re Harris Corp., 2013 WL 2631700, at *5 (alteration in original) 

(emphasis added) (internal quotation marks omitted).

78 A.I. Credit Corp. v. Liebman, 791 F. Supp. 427, 430 (S.D.N.Y. 

1992).

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Opinion of the Court

clauses are presumed79 to be valid, even when the validity of the 

entire contract is in question, and even when the validity of the 

contract is central to the suit.80

¶51 The second (and minority) approach is to allow a plaintiff’s 

claim that the contract was entered into fraudulently to be sufficient 

to render the forum selection clause unenforceable. At least three 

states81 have adopted this line of reasoning: New York, Georgia and 

Tennessee.82 The benefit of this approach is that it protects 

defrauded plaintiffs from being forced to litigate fraudulent 

contracts in a potentially inconvenient forum not of their choosing. 

¶52 We now side with the minority approach on this issue. The 

major flaw with the majority approach is that the district court must 

accept as valid a provision in a contract despite the plaintiff’s 

contention that the entire contract was induced by fraud. We also 

find it problematic that the majority approach imposes upon the 

79 Moberly & Burr, supra note 71, at 267 (observing that forum 

selection clauses are “presumptively valid in most states”).

80 See, e.g., Clark, 192 S.W.3d at 800 (rejecting plaintiffs’ argument 

that the forum selection clause should not be enforced “because a 

successful suit would result in the contracts [at issue] being ruled 

void”).

81 Missouri may also be leaning in this direction. See Burke v. 

Goodman, 114 S.W.3d 276, 280 (Mo. Ct. App. 2003) (analyzing 

enforcement of a forum selection clause by first determining whether 

or not the contract was adhesive, stating that “the forum selection 

clause must have been obtained through freely negotiated 

agreements”).

82 See, e.g., DeSola Grp., Inc. v. Coors Brewing Co., 199 A.D.2d 141, 

141–42 (N.Y. App. Div. 1993) (reversing a lower court’s decision that 

had incorrectly followed the majority approach by stating that the 

“plaintiff’s allegations of fraud pervading the Agreement would 

render the entire Agreement void, [rendering] the forum selection

clause contained therein . . . unenforceable”); SRH, Inc. v. IFC Credit 

Corp., 619 S.E.2d 744, 746 (Ga. Ct. App. 2005) (holding that “the trial 

court erred in dismissing the case on the basis of a forum selection 

provision in [a] contract alleged to have been procured 

by fraud”); Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. 

App. 2000) (“[F]raud in the underlying transaction renders a contract 

clause, such as the forum selection clause at issue here, 

unenforceable.”).

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Opinion of the Court 

plaintiff the burden of making a “separate and distinct challenge” to 

the forum selection clause itself, when the only support the plaintiff 

has—the allegation that the entire contract and all of the provisions 

contained therein are fraudulent—is deemed to be necessarily 

inadequate. The application of this approach may also result in 

defrauded plaintiffs being forced to litigate a contract that is 

ultimately deemed fraudulent in a different forum as the result of a 

provision they never bargained for. 

¶53 We recognize, however, that the majority approach does 

have the effect of avoiding the task of determining whether a 

contract is valid at the motion to dismiss stage. Instead, it reserves

that issue until further discovery can be done, at which point that

issue can be adjudicated on its merits with the benefit of full 

discovery. This notwithstanding, we conclude that the minority 

approach is more consistent with our case law83 and with the 

standard of review employed at the motion to dismiss stage. We are 

also not persuaded that the minority approach will allow plaintiffs to 

freely dodge forum selection clauses, since (a) they are required to 

plead fraud with particularity, and (b) the district court has the 

discretion to order an evidentiary hearing, both of which will assure 

that valid forum selection clauses are not rejected based on the 

pleadings alone.

83 We recognize that our cases could be construed as supporting 

both the majority and minority approaches. For example, in Prows v. 

Pinpoint Retail Systems, Inc., we seemed to prefer the majority 

approach when we held that “a plaintiff who brings an action in 

violation of the choice-of-forum provision bears the burden of 

proving that enforcing the clause is unfair or unreasonable,” and that 

“[a] party might also show that . . . the choice-of-forum provision was 

obtained by fraud.” 868 P.2d 809, 812 & n.5 (Utah 1993) (emphases 

added) (internal quotation marks omitted). On the other hand, in 

support of the minority approach, we stated in Phone Directories Co. 

v. Henderson that “the traditional defenses allowing one to avoid an

unfair or unreasonable contract, such as duress and fraud, are available 

to parties litigating the validity of a forum,” and that such provisions 

are only upheld when “obtained through freely negotiated

agreements.” 2000 UT 64, ¶ 15 & n.9, 8 P.3d 256 (emphases added) 

(internal quotation marks omitted).

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2. The Requirement to Plead Fraud with Particularity Protects 

Against Improper Rejection of a Forum Selection Clause Due To 

“Artful Pleading”

¶54 When plaintiffs bring lawsuits in violation of forum 

selection clauses, they must make a showing that there is an 

acceptable reason not to enforce the clause. Specifically, they must 

show that enforcement of the clause is “unfair or unreasonable,” or 

“that (1) the choice-of-forum provision was obtained by fraud, 

duress, the abuse of economic power, or other unconscionable 

means;84 or (2) the courts of the chosen state would be closed to the 

suit or would not handle it effectively or fairly.”85 Should a plaintiff 

attempt to argue that the clause is unenforceable due to fraud, the 

plaintiff must then satisfy rule 9(b) of the Utah Rules of Civil 

Procedure, which requires “the circumstances constituting fraud . . . 

[to] be stated with particularity” in the complaint. Under this rule, a 

plaintiff is required to provide a “sufficiently clear and specific 

description of the facts underlying the [plaintiff’s] claim” of fraud.86

And under the approach we adopt today, a plaintiff is therefore 

required to plead with particularity the circumstances leading to the

fraudulent inducement of the contract. This rule provides protection 

against the possibility that plaintiffs could avoid forum selection 

clauses by artfully pleading around them, as the trial judge can 

review the complaint to ensure that the details provided by the 

plaintiff truly constitute fraudulent inducement of the contract.

3. The District Court Has the Discretion to Hold an Evidentiary 

Hearing on the Issues of Fraud or Overreaching

¶55 In addition to the particularity requirement, should the 

district court deem it necessary, it has the discretion to hold an 

evidentiary hearing on the allegations of fraud or overreaching

before deciding whether to enforce the challenged forum selection 

clause. We recognize that there will be cases, like this one, where the 

entire case may hinge on the enforceability of the contract, and thus, 

84 This showing may be made by demonstrating that the entire 

contract was so obtained. See supra ¶¶ 47–53.

85 Prows, 868 P.2d at 812 n.5 (internal quotation marks omitted).

86 Hill v. Allred, 2001 UT 16, ¶ 14, 28 P.3d 1271 (alteration in 

original) (internal quotation marks omitted); see also Riley, 969 F.2d at

960 (holding that “[a] plaintiff seeking to avoid a choice provision on 

a fraud theory” must plead fraud according to rule 9(b) of the 

Federal Rules of Civil Procedure).

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Opinion of the Court 

if ordered, the parties may be forced to litigate much of their case 

before even exiting the pleading stage of litigation. But this may 

nevertheless be necessary, since the forum selection clause must be 

weighed in connection with the court’s overall forum non 

conveniens analysis. Accordingly, the court must determine whether 

that clause is enforceable, which may require evidence to be 

gathered regarding the clause, particularly where there are 

allegations that the clause was improperly obtained.

¶56 Accordingly, we remand this case to the district court for 

further proceedings consistent with this opinion.

CONCLUSION

¶57 We decline ECL’s invitation to adopt a choice-of-law inquiry 

as a threshold to our forum non conveniens analysis and reverse the 

court of appeals’ decision to uphold dismissal as to Catalyst, 

Mr. Roberts, and the Director Defendants. We also reverse the court 

of appeals’ decision to uphold dismissal for improper venue as to 

ARM. On remand, we instruct the district court to first determine 

whether the forum selection clause is enforceable, and then to 

perform a forum non conveniens analysis that is consistent with this 

opinion. 

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