It is well-settled that parties may consent in advance to submit their
controversies to a particular forum. See Helicopteros Nacionales de
Colombia. S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404
(1984). This consent may be either express or implied. Heller Financial,
Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1290 (7th Cir. 1989).
Consent to suit in a particular forum is an independent ground for the
exercise of personal jurisdiction, separate and distinct from any
personal jurisdiction based on an analysis of minimum contacts. See Burger
King, 471 U.S. at 473 n. 14, 105 S.Ct. 2174.
In this case, the forum selection clause provides advance consent to
waive objections to personal jurisdiction and venue. The forum selection
clause specifically states that "all disputes and differences are to be
submitted to the United States District Court of that District, where
plaintiff is located." Neither party argues that enforcement of the clause
would be unreasonable or unjust. Thus, UNECO has waived objection to
personal jurisdiction. There is no need for the Court to analyze whether
personal jurisdiction is proper over UNECO based on its specific or
general contacts with Illinois.
Here, even though UNECO has waived objection to personal jurisdiction
and venue, it must still be determined whether the forum selection clause
operates as a waiver to suit in this Court. As mentioned above, the
parties dispute the proper interpretation of the term "located" contained
in that clause. Thus, the Court must determine whether the parties
intended the narrow meaning of the term posited by UNECO or the broader
meaning of "located" advanced by Hanson.
In this regard, it is not settled whether state or federal law governs
the interpretation (as opposed to the validity) of a valid forum
selection clause. However, the parties in this case do not rely upon any
interpretive principles unique to Utah and instead rely on federal law,
so they have waived reliance on Utah's law of contract interpretation.
See Donovan, 916 F.2d at 374. At any rate, both Utah law and federal law
provide that only after determining that a term is ambiguous should
extrinsic evidence be used to interpret it. See, e.g., Ron Case Roofing
and Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382, 1385 (Utah 1989)
and Ryan v. Chromalloy American Corp., 877 F.2d 598, 602 (7th Cir.
A contract must, be interpreted as a whole, Metalex Corp. v. Uniden
Corp. of America. 863 F.2d 1331 (7th Cir. 1988), and its words should be
given their ordinary and natural meaning. Robbins v. Lynch, 836 F.2d 330
(7th Cir. 1988). While extrinsic evidence may be used to determine the
meaning of ambiguous terms, terms should not be added to the clear
language of a contract. See Calder v. Camp Grove State Bank, 892 F.2d 629,
632 (7th Cir. 1990).
The contract provision at issue in this case is not ambiguous. It
clearly provides that a suit may be instituted where the "plaintiff" is
"located" and nowhere does the contract state explicitly that suit may
only be brought in New Jersey or Utah. There is no indication whatsoever
in the contract that the term "located" has been narrowed in scope or has
been given any special stipulated meaning. As UNECO admits, the normal
definition of the term "located" is, inter alia, "to set or establish in
a particular spot or position." Webster's Third New Int'l Dictionary, p.
1327 (1986). The term "location" is defined as "a position or site
occupied or available for occupancy." Id. In addition, "located" is
defined in Black's Law Dictionary as "[h]aving a physical presence or
existence in a place" while the term "location" is defined to mean
"[s]ite or place where something is or may be located." Back's Law
Dictionary 940 (6th ed. 1990). Concepts closely associated with
"location" are "residency" and "venue." William C. Burton, Legal
Thesaurus 322 (Steven C. DeCosta ed. Macmillan 1992) (1980).
On the other hand, the term "address" is associated with concepts such
as "office address," "post office address" and "box
number." Id. at 10. While there may be some overlap in the concepts of
address and location, the sources above indicate that the term "located"
is not properly limited in scope to include only the address of a
corporation that happens to be listed in a contract, but rather includes
such places as the corporate office and the principal place of business.
This indicates that the parties have consented to suit in Illinois, since
it is undisputed that Hanson has a substantial business presence —
its corporate offices — in this district.
In addition, "located" may be contrasted with more a specific term
such as "headquarters" which may be ambiguous because it could refer to
only one of several "headquarters" — corporate headquarters,
manufacturing headquarters or distribution headquarters. See Hickey v.
A.E. Staley Mfg., 995 F.2d 1385, 1390 (7th Cir. 1993). As indicated
above, the term "located" is broader in meaning than a term like
"headquartered" — thus indicating that while "headquarters" could
be limited to refer to one of several main offices, the term "located" is
not similarly restricted in scope.
Another consideration in this regard is the fact that UNECO does not
dispute that it consented to suit in the clearly inconvenient forum of
New Jersey. While it may not be a particularly weighty indication of the
meaning of the term "located," the fact that UNECO had consented to suit
in a very inconvenient forum (such as New Jersey) is a further indication
that suit in Illinois comes as no surprise to UNECO.
Alternatively, even if the term "located" was ambiguous, the Court
finds that the extrinsic evidence indicates that the parties understood
the term "located" to mean any place where either of the parties had a
substantial business presence or location. The extrinsic material
submitted on this motion indicates that the parties likely understood
that Hanson had its main office in Springfield, Illinois. Several items
of correspondence indicating that Hanson's corporate address was in
Springfield, Illinois passed between the parties. These submissions
indicate that UNECO not only understood that Hanson was located in more
than one place at the time the contract was entered into but that UNECO
likely understood that Hanson had a substantial place of business in
Springfield, Illinois. In drafting the forum selection clause, it is
reasonable to believe that UNECO knew that Hanson was "located" in
Illinois because Hanson had its corporate offices in Springfield,
Thus, since the parties agree that the forum selection clause is valid
and enforceable, the issue presented on this motion is the proper
interpretation of the language of the clause. The Court finds that the
clause, considered in the context of the contract as a whole, is not
ambiguous and that UNECO waived objections to personal jurisdiction and
venue in this Court. Alternatively, the Court finds that the extrinsic
material indicates that the parties understood that the term "located"
indicated that the forum selection clause was at least broad enough to
provide for suit in the Court.
Ergo, for the reasons given herein, UNECO's motion to dismiss is
DENIED. UNECO's motion to file a reply is DENIED. Hanson's motion to file
a surreply is also DENIED.