31 March

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Home Venue Privilege Applies to Government Defendants

“Governmental defendants in Florida are entitled, absent waiver or exception, to “home venue privilege,” i.e., to be sued in the county where their headquarters are located.” Florida Pace Funding Agency v. Pinellas County, 49 Fla.L.Weekly 660a (Fla. 2d DCA 2024). This home venue privilege is important to governmental entities since it ensures they are sued in their home county, i.e., where their taxpayers and residents will serve on a jury. A remote exception to this home venue privilege is known as the sword wielder exception. The sword wielder exception allows a plaintiff to sue a government defendant outside of the home county...

19 November

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Mandatory Forum Selection Provisions

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When reviewing a contract, check to see if there is a forum selection provision. This provision will dictate where a dispute shall or may be brought. Forum selection provisions are construed as either mandatory forum selection provisions (the dispute has to be brought in this exclusive forum) or permissive forum selection provisions (the dispute may be brought in this forum, but other forums would work too). Be mindful of forum selection provisions because they will come into play if a dispute unfolds. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and...

24 December

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Enforceability of a Himalaya Clause

Posted by David Adelstein

in Trial Perspectives

A “Himalaya” clause. I just learned what this type of provision is called. A Himalaya clause attempts to extend limitation of liability provisions including forum selection provisions to persons other than the contracting party. Aquachile, Inc. v. Williams, 47 Fla. L. Weekly D30c (Fla. 4th DCA 2021). Regarding a Himalaya clause’s enforceability: Himalaya clauses are construed, according to general principles of contract interpretation, “by their terms and consistent with the intent of the parties.” The court must determine whether the plain language of the contract as a whole reflects an intent to extend limitations of liability to the party seeking protection. Any...

07 February

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Do Not Overlook Reviewing the Forum Selection Provision in the Contract

Posted by David Adelstein

in Trial Perspectives

Many contracts contain what is known as a forum selection provision. This provision may state that disputes arising out of the contract MUST be brought in the exclusive venue of a specific county or state. Do not overlook this provision because this provision is enforceable and will likely dictate where you will need to file suit in the event of a dispute. For instance, if you have a contract for services performed in Miami-Dade County, Florida (or you live in that County, or is receiving goods in that County), you may not want to agree to litigate disputes arising from...

15 February

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Mandatory or Permissive Forum Selection Provision

Posted by David Adelstein

in Trial Perspectives

Many contracts contain a venue provision also regarded as a forum selection provision – the jurisdiction where lawsuits are to take place. In analyzing these provisions, the initial consideration should always be whether the provision is mandatory or permissive. Mandatory forum selection clauses “require or unequivocally specify ...

31 March

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Forum Selection / Venue Provisions in Contracts are Enforceable

Posted by David Adelstein

in Appeal, Trial Perspectives

If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract. Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute. For instance, the provision may say something to the effect, “The exclusive venue for any dispute arising out of or relating to this contract shall be in Miami-Dade County Florida.” This means that if you plan to sue you need to do so in a court located in Miami-Dade County,...

03 February

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A Contractual Waiver of the Right to Challenge Venue is Enforceable

Posted by David Adelstein

in Trial Perspectives

Many contracts contain a forum selection provision or a venue provision. Contracts may even contain language that parties agree not to challenge or otherwise waive the venue of any filed lawsuit. An example of such a provision was included in an operating agreement: This Agreement is to be construed and governed by the laws of the State of Florida (without giving effect to principles of conflicts of laws). Each party hereto irrevocably agrees that any legal action or proceeding arising out of or in connection with this Agreement may be brought in any state or federal court located in Florida (or in...