Publication Date



In The Bremen v. Zapata Off-Shore Co., the Supreme
Court established the federal standard of enforcing forum-
selections clauses as presumptively reasonable. The Court,
however, first addressed the enforceability of forum-
selection clauses in a diversity case in Stewart
Organization, Inc. v. Ricoh Corp., in which the Court held
that under Erie, federal law, specifically 28 U.S.C.
§ 1404(a), governs the enforceability of forum-selection
clauses. After Stewart, a split within the United States
Courts of Appeals developed when litigants used Rule 12
motions to dismiss-a procedural vehicle unaddressed by
the Stewart Court-to enforce these clauses. The circuit
split has two dimensions. First, the circuits are split over
whether state law declining to enforce forum-selection
clauses should trump the federal standard. Second, the
circuits are split over which Rule 12 motion is the proper
motion for enforcement.
This Note posits a judicial solution to the forum-
selection clause enforcement circuit split. The choice of
law circuit split calls on the Court to conduct a revised
Erie analysis in which the outcome-determinative nature
of the conflict between federal versus state law and the
absence of any overwhelming federal policies on point
dictate that state law controls forum-selection clause
enforcement. Next, this Note argues that the Rule 12(b)(6)
motion is the proper motion for forum-selection clause
enforcement so as to give the most effect to the parties'
contractual agreements.