2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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# D olor es D a wes v . Publi sh Ame r ic a L L L P

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 13-3269

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w . v i l l a no v a . e du/thir dc ir c uit_2014/3911 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 3269

___________ DOLORES DAWES ,

Appellant

v. PUBLISH AMERICA LLLP, A Limited Liability Limited Partnership;

PUBLISH AMERICA, INC., A Corporation

____ ________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 11

- cv - 06912 ) District Judge: Honorable C. Darnell Jones, II

____________________________________ Submitted P ursuant to Third Circuit LAR 34.1(a)

March 4, 2014 Before: RENDELL, GREENAWAY, JR. and ALDISERT , Circuit Judges

(Opinion filed : April 10, 2014 )

___________ OPINION

___________ PER CURIAM Dolores Dawes appeals the District Court’s order gra nting a motion to dismiss filed by Publish America, LLLP and Publish America, Inc. (“Publish America”)

. For the reasons below, we will affirm the District Court’s order.2

In June 2003, Dawes , a Pennsylvania resident , assigned the right to publish and sell her book , A Child’s Intuition , to Publish America , a company based in Maryland

. The next year, a dispute arose between the parties concerning whether Publish America was performing its duties under the contract. In 2005, Dawes filed suit in sta te court in Maryland, seeking an accounting of the sales of th e book and the royalties due. The matter was arbitrated, and in May 2007, Dawes was awarded royalties based on the sale of seven copies of the book. In 2009, Dawes filed a claim for copyright infringem ent in the United States District Court for the Eastern District of Pennsylvania. The District Court dismissed the claim because Dawes had never register ed the copyright. Dawes appealed, and we affirmed, holding that Dawes “ submitted no proof that she ha d registered her copyright or that Publish America had infringed upon her copyright after their contract was terminated. ” Dawes

- Lloyd v. Publish America, LLLP , 441 F. App’x 956, 957 (3d Cir. 2011) (not precedential). Dawes filed the instant action in N ovember 2011, alleging that Publish America fraudulently induced her t o enter into the co ntract , breached the contract by failing to
reg ister her copyright, and infringed her copyright by selling the book without her permission. Publish America filed a mo tion to dismiss or for summary judgment . T he District Court granted the motion to dismiss , citing Federal Rules of Civil Procedure 12(b)(2) (lack of personal jurisdiction) and 12(b)(6) (failure to state a claim upon which3

relief can be granted), as well a s 28 U.S.C. § 1406(a) (pertaining to “venue in the wrong division or district”). Dawes appealed. 1
The District Court held that dismissal was mandated by a forum selection clause in the contract, which provided that “Author and Publisher irrevocably sub mit to the jurisdiction of any Maryland State or Federal court sitting in the City of Frederick over
any suit related to this ag reement.” 2 This was error, however, because the forum selection clause

– which did not make jurisdiction in Maryland exclusive

– was permissive, not mandatory. 3 See Dunne v. Libbra , 330 F.3d 1062, 1063 (8th Cir. 2003)

1 We note that specific personal jurisdiction has been established through the contractual relationship between Publish America and Dawes. See Re mick v. Manfredy , 238 F.3d 248, 256 (3d Cir. 2001) (stating that “we expressly acknowledged that in many instances, personal jurisdiction can arise primarily from a nonresident defendant’s contract with a forum resident.”).

2 The contract also provided that “[a]ll unresolved disputes and controversies of any kind and nature within the scope of this agreement . . . shall be submitted to an Arbitrator . . . . The arbitration shall be conducted in the City of Frederick, Maryland . . ., and the decision of the arbitrator shall be final and binding on the parties to the proceeding, subject only to the right of judicial relief as prescribed by law. This agreement shall be governed and construed in accordance with the laws of the State of Maryland.” Publish America did not file a motion to compel arbitration. See Gray Holdco, Inc. v. Cassady , 654 F.3d 444, 451 (3d Cir. 2011) (discussing waiver of right to compel arbitration).

3 If the forum selection clause was mandatory, it would be entitled to a presumpti on of enforceability. See M/S Bremen v. Zapata Off

- Shore Co. , 407 U.S. 1, 15 (1972)). But that presumption can be overcome when , as here, “extraordinary circumstances unrelated to the convenience of the parties” clearly disfavor a transfer. Atlantic Mar ine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tx. , 134 S. Ct. 568, 581 (2013) ; see also Martinez v. Bloomberg LP , -- F.3d

-- , 2014 WL 114252, at *5

- 6 (2d Cir. 2014) (factoring mandatory

- permissive analysis into Atlantic Marine approach)

. T ransf er under the forum selection clause wo uld be useless because, as described below, Dawes’s claims are plainly barred.4

(noting distinction between permissive and man datory forum selection clauses); see also Global Satellite Commc’n Co. v. Starmill U.K. Ltd. , 378 F.3d 1269, 1272 (11t h Cir. 2004) ( “A permissive clause authorizes jurisdiction in a designated forum but does not prohibit litigation elsewhere, ” whe reas “ [a] mandatory clause . . . dictates an exclusive
forum for litigation under the contract.” (internal quotation marks omit ted) ). If the
contract does not contain a mandatory forum selection clause , then a forum non
conveniens analysis applies. See Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V. , 145 F.3d 505, 509

- 10 (2d Cir. 1998)

. Although t he District Cou rt failed to apply such an analysis here , any error was harmless . The ends of justice would certainly not be further ed if we force d the District Court to take more action on a permissive forum selection clause that ultimately will not affect the outcome o f the case. See Lony v. E.I. Du Pont de Nemours & Co. , 886 F.2d 628, 632 (3d Cir. 1989) (“ In deciding whether to dismiss a case for forum non conveniens, ‘ the ultimate inquiry is where trial will best serve the convenience of the
p arties and the ends of j ustice.’” (quoting Koster v. Lumbermens Mut

. C asualty Co. , 330 U.S. 518, 527 (1947) )). Here , every reasonable adjudicator, regardless of venue, would dismiss Dawes’ s case because , as Publish America correctly alleged, her claims are clearly barred by the applicable statute of limitations and res judicata. See Ball v. Famiglio , 726 F.3d 448, 459 n.16 (3d Cir. 2013) (noting that both statute of limitations and res judicata may be raised in a 12(b)(6) motion to dismiss).5

Dawes alleged that Publish America fraudulently induced her to enter into the
contract and breached the contract by fail i ng to register her copyright. 4 We agree with Publish America ’s contention that t hese claims are barred by Maryland’s three

- year statute of limitations

. 5 S ee Goodman v. Praxair, Inc. , 494 F.3d 458, 463

- 64 (4th Cir. 2007) (recognizing that breach of contract actions in Maryland are governed by a three

year statute of limitations); P hillips v. G.D. Searle & Co. , 884 F.2d 796, 797 (4th Cir. 1989) (stating that [u]nder the Ma ryland statutes, actions for . . . fraudulent misrepresentation are barred three years after the cause of action accrues.” (citing Md. Cts. & Jud. Proc. Code Ann. § 5

- 101)) ; see also Gen. Eng’g Corp. v. Martin Marietta Alumina, Inc. , 783 F.2d 352, 358 n.5 (3d Cir. 1986) (discussing enforceability of a forum selection clause in Maryland)

. These claims accrued by 2004, when Dawes stated that she became aware of Publish America’s alleged failure to “honor” the contract. See Poffenberger v. Risser , 431 A.2d 6 77 (Md. 1981) (holding that, u nder the discovery rule, “the cause of action accrues when the claimant in fact knew or reasonably should have

4 To the extent that Dawes alleged that Publish America infringed her copyright by selling the book without her permission, we agree with P ublish America’s assertion in its motion to dismiss that res judicata bars that claim, which we rejected in a prior suit. Dawes

- Lloyd , 441 F. App’x at 956; Federated Department Stores, Inc. v. Moitie , 452 U.S. 394, 398 (1981) (noting that r es judicata bar s claims that were actually litigated or could have been litigated in the prior action ).

5 The contract provided that it would be governed by Maryla nd law

. See footnote 2 , supra . Neither party has alleged that this choice of law provision is invalid or inapplicable. See Neely v. Club Med Mgmt. Servs. , 63 F.3d 166, 180 & n. 10 (3d Cir. 1995) (en banc) (concluding that “choice of law issues may be waived”).6

known of the wrong.” ). Accordingly, the fraudulent inducement and breach of contract claim s raised in Dawes’ s 2011 complaint are time

- barred. 6 For the foregoing reasons, we will affirm the judgment of the District Court.

6 We also note that there is no merit to Dawes’ s assertion that Publish America breached the contra ct by failing to register her copyright. Contrary to Dawes’ s belief, the contract did not obligate Publish America to register a copyright. Instead, it merely stated that “[c]opyright shall be taken out in the name of Author in the United States, and in foreign countries as the Publisher may deem advisable.” See In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir. 1997) (recognizing “an exception to the general rule [that matters extraneous to the pleadings may not be considered on a m otion to dismiss] is that a document integral to or explicitly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment.” (citation and in ternal quotation marks omitted)).