The opinion of the court was delivered by: Will, District Judge.
Before us in this diversity action is defendant Entre Computer
Centers, Inc.'s (Entre) motion to dismiss for improper venue under
Fed.R.Civ.P. 12(b)(3) or, alternatively, to transfer venue under
28 U.S.C. § 1406 (a) based on a venue selection provision within a
franchise agreement between it and ECC Computer Centers of Illinois,
Inc. (ECC). For the reasons hereinafter stated, we find that the venue
selection provision is invalid and unenforceable and we, therefore, deny
On August 15, 1984, ECC filed a six-count complaint. For purposes of
Entre's motion to dismiss, we take the allegations in the complaint as
true and view them, as well as any reasonable inferences to be drawn from
them, in the light most favorable to ECC. See Powe v. City of Chicago,
664 F.2d 639, 642 (7th Cir. 1981).
ECC is an Illinois corporation with its principal place of business in
Chicago, Illinois. It was formed to be in the business of owning and
operating computer stores. Entre, a Delaware corporation with its
principal place of business in Vienna, Virginia, is a franchisor of
computer stores throughout the country. In late 1983, EGG negotiated with
Entre for a computer franchise in Chicago. At that time, Entre had only
one computer franchisee in Chicago, located on Wells Street near the
Loop. On January 28, 1984, ECC entered into an agreement with Entre
whereby a proposed computer store would be located in Chicago and after
the franchisor (Entre) approved the store's location, the approved site
would be attached as Appendix A to the Franchise Agreement (Agreement).
Complaint, Ex. A, ! I. When the Franchise Agreement was executed ECC paid
$40,000 to Entre as the franchise fee.
After execution of the Agreement, ECC sought a suitable location in the
Loop, based upon Entre's verbal representations that the proposed store
would be located in downtown Chicago, even though the exact site had not
yet been selected. In March, 1984, ECC notified Entre that it had
obtained a proposed long-term lease for space in the Chicago Title and
Trust Building at Clark and Washington Streets. Soon thereafter, James
J. Edgette, Entre's vice president of marketing, informed ECC that it had
come to Entre's attention that the existing franchise in downtown Chicago
had a two mile radius limit which prevented the establishment of another
franchised store without the existing franchisee's written consent. Entre
was unable to obtain such consent. Letter from Edgette to Howard
Barnett, president of ECC (Mar. 20, 1984). Edgette offered either to
rescind the Agreement and refund the $40,000 fee or to allow EGG to
select another site beyond the two mile limit. Id.
Subsequently, EGG brought this action against Entre claiming fraud
(count I) and seeking actual damages of $130,000 and punitive damages of
$750,000, scheme to defraud (count II), negligent misrepresentation
(count III), mutual mistake of fact (count IV), breach of contract (count
V), and violation of the Illinois Franchise Disclosure Act,
Ill.Rev.Stat, ch. 121 1/2, § 701, et seq., (the Act) (count VI).
The Agreement contained a venue selection clause, as well as a
statement of applicable law, which provided that (1) the Agreement took
effect upon the acceptance and execution by Entre in Virginia; (2) the
Agreement would be construed under Virginia law which would prevail in
the event of any conflict of law; (3) the parties agreed that any action
brought either in state or federal court; "shall be brought within the
Commonwealth of Virginia and [the parties] do hereby waive all questions
of personal jurisdiction or venue for the purposes of carrying out this
provision." Pl. Ex. A (Agreement, ! XXII).
The Illinois Franchise Disclosure Act provides that "[a]ny provision in
a franchise agreement which designates jurisdiction or venue in a forum
outside of Illinois is void with respect to any cause of action which
otherwise is enforceable in Illinois." Ill. Rev.Stat. ch. 121 1/2, §
703.1. EGG claims that the effect of this requirement is to render void
and unenforceable the venue selection clause of the Agreement. At issue
then is whether venue is properly in this Court for purposes of count VI
(alleging violation of the Act). If it is, then we must also consider
whether the venue selection provision should be enforced so that the
causes of action alleged in the other five counts need be transferred to
Virginia, with Virginia law to be applied.
In urging the enforcement of the contractual venue limitation, Entre
claims that federal law; rather than state law, governs enforceability of
the provision as it is a procedural matter. Erie R.R. v. Tompkins,
304 U.S. 64, 92, 58 S.Ct. 817, 828, 82 L.Ed. 1188 (1938). Alternatively,
it argues that even if enforcement of the provision is considered a
substantive issue, requiring the application of Illinois law, including
Illinois conflict of laws decisions, Klaxon v. Stentor Electric Mfg.
Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), that law would
lead to application of Virginia substantive law which would recognize the
validity of the Agreement's venue selection provision.
We need not, however, reach the issue of which should apply: The state
law applicable under Erie, the Illinois Franchise Disclosure Act,
produces the same result as the leading United States Supreme Court
decision, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907,
32 L.Ed.2d 513 (1972). Although it is not patently clear whether a court
sitting in diversity should follow the Bremen approach towards forum
selection or whether Erie mandates application of state law*fn1,
"[s]ince there is no significant difference between the federal and state
rule, it is not necessary to choose between them." Wellmore Coal Corp.
v. Gates Learjet Corp., 475 F. Supp. 1140, 1143 (W.D.Va. 1979); Central
Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 344-45 (3d Cir.
Except in certain circumstances, courts must give effect to freely
negotiated forum selection clauses, Snyder v. Smith, 736 F.2d 409, 419
(7th Cir. 1984), given the realities of commercial dealings and the
reasonable expectations of the parties. Nevertheless, "[a] contractual
choice-of-forum should be held unenforceable if enforcement would
contravene a strong public policy of the forum in which suit is brought,
whether declared by statute or by judicial decision." Bremen, supra, 407
U.S. at 15, 92 S.Ct. at 1916 (emphasis added). Illinois public policy may
be found in its judicial decisions, legislation, and construction.
Resorts International, Inc. v. Zonis, 577 F. Supp. 876, 877 (N.D.Ill.
1984), citing Marchlik v. Coronet Insurance Co., 40 Ill.2d 327, 332,
239 N.E.2d 799, 802 (1968).
The parties have cited no cases interpreting the venue prohibitions of
the Illinois Franchise Disclosure Act, nor have we discovered any. We,
therefore, look only to the language of the Act to determine Illinois'
public policy with respect to the forum selection clause at issue here,
bearing in mind that the party resisting enforcement of the clause bears
the burden of proving its unreasonableness. Clinton v. Janger,
583 F. Supp. 284, 288 (N.D.Ill. 1984), citing Bremen, supra; Cruise v.
Castleton, Inc., 449 F. Supp. 564 (S.D.N Y 1978).
The intent of the Act is clearly indicated ...