AFC Franchising, LLC v. Danilo Purugganan

43 F.4th 1285

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 11, 2022
• Docket: 20-13849
• Status: Published

Opinion

USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 1 of 36

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-13849 ____________________

AFC FRANCHISING, LLC, Plaintiff-Appellant, versus DANILO PURUGGANAN,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:20-cv-00456-JHE ____________________ USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 2 of 36

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Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges. NEWSOM, Circuit Judge, delivered the opinion of the Court. TJOFLAT, Circuit Judge, filed a concurring opinion. NEWSOM, Circuit Judge: In this case, we must decide whether Danilo Purugganan consented to personal jurisdiction and venue in the Northern Dis- trict of Alabama by agreeing to a “floating” forum-selection clause. We hold that, in the circumstances presented, the clause is applica- ble and enforceable. Accordingly, we reverse the district court’s contrary decision and remand for further proceedings. I AFC Franchising is an Alabama LLC with its principal place of business in Shelby County, Alabama. Purugganan is a resident of New York. In 2009, Purugganan signed a “Master Developer Agreement” with another company, Doctors Express Franchising, to develop urgent-care centers in New York and Connecticut. Doc- tors Express was an LLC with its principal place of business in Mar- yland, and the parties agreed that the contract would be governed by Maryland law. After a series of acquisitions, AFC was assigned Doctors Ex- press’s end of the bargain in 2013, and Purugganan was notified of the assignment. It is undisputed that this assignment was permis- sible. Indeed, the Master Developer Agreement expressly author- ized Doctors Express to “change [its] ownership or form and/or USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 3 of 36

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assign th[e] Agreement and any other agreement to a third party without restriction.” Doc. 1-2 at 17. As particularly relevant here, the Master Developer Agree- ment—which Doctors Express drafted—contains the following fo- rum-selection provision: You and your owners agree that all actions arising un- der this Agreement or otherwise as a result of the re- lationship between you and us must be commenced in a state or federal court of competent jurisdiction within such state or judicial district in which we have our principal place of business at the time the action is commenced, and you (and each owner) irrevocably submit to the jurisdiction of those courts and waive any objection you (or the owner) might have to either the jurisdiction of or venue in those courts. Id. at 26 (emphasis added). This is known as a “floating” forum- selection clause because it ties the chosen forum to a mutable fact—here, the franchisor’s principal place of business. See Dale Joseph Gilsinger, Enforceability of Floating Forum Selection Clauses, 39 A.L.R.6th 629 § 2 (2008) (“A ‘floating’ forum selection clause is defined as a clause which, rather than designating a forum by immutable geographical place name, designates the exclusive forum for all litigation regarding the agreement . . . by reference to mutable facts . . . .”). When the parties’ relationship soured, Purugganan threat- ened to sue AFC in either Connecticut or New York. AFC believed that the floating forum-selection clause required Purugganan to USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 4 of 36

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sue in Alabama, where AFC had its principal place of business. It thus sought a declaratory judgment in Alabama state court (1) that the parties had to litigate their dispute in Alabama and (2) that AFC hadn’t breached the Master Developer Agreement. Purugganan removed the action to the United States District Court for the Northern District of Alabama, and the parties agreed to have the case decided by a magistrate judge. See 28 U.S.C. § 636(c). Purugganan then moved to dismiss for lack of personal jurisdiction and improper venue. In the alternative, Purugganan asked the magistrate judge—who, given the parties’ consent, acted on behalf of the district court—to transfer this case to Connecticut, where he has since sued AFC. The district court sided with Purugganan on the personal- jurisdiction issue. First, it concluded that Purugganan lacked “min- imum contacts” with Alabama. Second, and more importantly for present purposes, the court held that Purugganan hadn’t contrac- tually waived his personal-jurisdiction defense by agreeing to the forum-selection provision. Even though AFC took over as Doctors Express’s assignee and had its principal place of business in Ala- bama, the court reasoned, there was “no reference to assignees in the Master Develop[er] Agreement’s forum selection clause.” USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 5 of 36

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Accordingly, the district court granted Purugganan’s motion to dis- miss. AFC timely appealed. 1 II We begin our analysis from a place of relative agreement between the parties—what law to apply. We then turn to the mer- its of the personal-jurisdiction dispute. A It is well settled that state law governs issues of contract in- terpretation that arise in a diversity action. See, e.g., Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). Here, the Master Developer Agreement provides that the contract and all claims arising from it are “governed by the laws of the State of Mar- yland.” Doc. 1-2 at 26. Neither party disputes the applicability of that choice-of-law clause. So we will apply Maryland law in our interpretation of the agreement. The next question is whether state or federal law governs the enforceability of the forum-selection clause. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71 (1938). “When deciding to apply fed- eral or state law to a forum selection clause, the context in which the clause is asserted can be determinative.” Preferred Cap., Inc. v.

1 We review the dismissal of an action for lack of personal jurisdiction de novo.

See Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292 (11th Cir. 2021). The same goes for questions related to the interpretation and enforce- ability of a forum-selection clause. See Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1235 (11th Cir. 2011). USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 6 of 36

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Sarasota Kennel Club, Inc., 489 F.3d 303, 306 (6th Cir. 2007). For instance, in a diversity action involving a transfer motion, “[c]on- sideration of whether to enforce a forum selection clause . . . is governed by federal law, under 28 U.S.C. § 1404(a).” P & S Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003) (per curiam). But at least in some cases in which a defendant moves to dismiss for lack of personal jurisdiction, this Court has held that “we must apply state law.” Alexander Proudfoot Co. World Head- quarters L.P. v. Thayer, 877 F.2d 912, 918–19 (11th Cir. 1989). We needn’t wade into these Erie waters today, as the parties agree that Maryland law should apply, and Maryland has “adopt[ed] the federal standard for analyzing the enforceability of forum-selection clauses.” Peterson v. Evapco, Inc., 188 A.3d 210, 228 (Md. Ct. Spec. App. 2018) (citing Gilman v. Wheat, First Sec., Inc., 692 A.2d 454, 462–63 (Md. 1997)). 2 Thus, we “can apply state and federal law harmoniously” to the enforceability issue at hand. Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 2002). B That brings us to the heart of the parties’ dispute—whether the exercise of personal jurisdiction over Purugganan would

2 Though we accept the parties’ agreement that we must apply Maryland law—and its incorporation of the federal standard—we note that there is sim- ilarly “no conflict between Alabama and federal law regarding the validity of forum selection clauses.” Rucker, 632 F.3d at 1236. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 7 of 36

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violate due process. 3 “Normally,” the Due Process Clause requires us to “consider whether the defendant purposefully established ‘minimum contacts’ with the forum state.” Alexander Proudfoot, 877 F.2d at 921 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). But “because the personal jurisdiction requirement is a waivable right,” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985), the normal “due process analysis is unnecessary where a nonresident defendant has consented to suit in a forum,” Alexander Proudfoot, 877 F.2d at 921. In that case, so long as a forum-selection clause is applicable and “not ‘unreasonable and un- just,’ [its] enforcement does not offend due process.” Burger King, 471 U.S. at 472 n.14 (citation omitted) (quoting The Bremen v. Za- pata Off-Shore Co., 407 U.S. 1, 15 (1972)); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991).

3 In most cases, we use a two-step approach to analyze personal-jurisdiction issues. “First, we determine whether the exercise of jurisdiction is appropriate under the forum state’s long-arm statute.” Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). “Second, we examine whether the exercise of personal jurisdiction over the defendant would violate the Due Process Clause.” Id. In this case, “the two inquiries merge, because Alabama’s long-arm statute permits the exercise of personal jurisdiction to the fullest ex- tent constitutionally permissible.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 8 of 36

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1 We start, then, by analyzing whether the floating forum-se- lection clause applies to this dispute. Again, that provision provides as follows: You and your owners agree that all actions arising un- der this Agreement or otherwise as a result of the re- lationship between you and us must be commenced in a state or federal court of competent jurisdiction within such state or judicial district in which we have our principal place of business at the time the action is commenced, and you (and each owner) irrevocably submit to the jurisdiction of those courts and waive any objection you (or the owner) might have to either the jurisdiction of or venue in those courts. Doc. 1-2 at 26 (emphases added). Clearly, Purugganan waived ob- jections to personal jurisdiction in the “state or judicial district,” to use the contract’s language, “in which we have our principal place of business at the time the action is commenced.” Who, though, is the “we” and “our” in that phrase? That is the pivotal question. Purugganan says that phrase refers to the principal place of business of Doctors Express—and only Doctors Express—as the original party to the Master Developer Agreement. AFC contends, by contrast, that the phrase now refers to its principal place of busi- ness because—as a valid assignee—it succeeded to all of Doctors Express’s rights and obligations under the contract. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 9 of 36

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We agree with AFC. The Master Developer Agreement ex- plicitly authorizes Doctors Express to “assign th[e] Agreement . . . to a third party without restriction.” Id. at 17. And under Maryland law, when a contract “is transferred by assignment, the assignee steps into the [assignor]’s shoes and acquires all the [assignor]’s rights” under the contract. Italian Fisherman, Inc. v. Middlemas, 545 A.2d 1, 4 (Md. 1988) (emphasis added). That is, the “rights of an assignee are concomitant to those of an assignor”—“no more, no less.” Nationstar Mortg. LLC v. Kemp, 258 A.3d 296, 301 (Md. 2021) (quoting Univ. Sys. of Md. v. Mooney, 966 A.2d 418, 430 (Md. 2009)). Applying this principle, it seems to us that AFC (the as- signee) holds the same right as Doctors Express (the assignor) to litigate in the state or judicial district containing its principal place of business—especially given that the Master Developer Agree- ment contemplates an unrestricted right of assignment. True, the contract indicates at the outset that it would use the terms “we,” “us,” and “our” to refer to Doctors Express. See Doc. 1-2 at 1 (“DOCTORS EXPRESS FRANCHISING, LLC, a Mar- yland limited liability company, located at 8600 LaSalle Road, Suite 326, Towson, Maryland 21286 (‘we,’ ‘us,’ or ‘our’)”). But applying a dose of common sense, we don’t think that parenthetical notation was meant—and shouldn’t be understood—to limit the contractual rights of Doctors Express’s assignees. See Credible Behav. Health, Inc. v. Johnson, 220 A.3d 303, 313 (Md. 2019) (“As a bedrock prin- ciple of contract interpretation, Maryland courts consistently strive to interpret contracts in accordance with common sense.” USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 10 of 36

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(quotation marks omitted)). It was instead meant to clarify that the shorthand uses of “we” and “our” refer to the franchisor generally, as distinct from the terms “you” and “your,” which refer to the master developer. Basic interpretive principles confirm this common-sense reading. Consider, first, the whole-text canon. “As with the inter- pretation of a statute,” Maryland courts (and thus we) don’t con- strue contractual “language in isolation, but consider[] that lan- guage in relation to the entire contract.” Impac Mortg. Holdings, Inc. v. Timm, 255 A.3d 89, 96 (Md. 2021); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“The text must be construed as a whole.”). Here, the Master Developer Agreement repeatedly uses the terms “we” and “our” to define the rights and obligations of the franchisor. 4

4 See, e.g., Doc. 1-2 at 2 (“We will have the sole right to approve Prospects . . . .”); id. (providing that, if the developer breaches the Master Developer Schedule, “we have the right to terminate this Agreement” via written notice); id. at 3 (“Provided that you are in compliance with the terms of this Agree- ment, we will not grant another master developer the right to solicit Pro- spects . . . in the Territory.”); id. at 7 (“For any Prospect that you refer to us and with whom we sign a Franchise Agreement . . . we will pay to you fifty percent (50%) of the Initial Franchise Fee . . . paid to us by that Prospect.”); id. at 8 (“For each Franchisee . . . that you perform Service Responsibilities and Monitoring Responsibilities for in the Territory, we will pay to you an amount equal to two and one-half percent (2.5%) of such Franchisee’s Gross Sales . . . .”); id. at 10 (“We will provide you a franchise marketing strategy . . . .”); id. at 11 (“We will provide you with a description of how to perform the Ser- vicing Responsibilities and Monitoring Responsibilities . . . .”); id. at 14 (“We USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 11 of 36

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And yet the parties knew—and all still agree—that the franchisor could assign the agreement “without restriction.” So, if the parties meant to ascribe some rights and obligations to Doctors Express specifically and others to Doctors Express and its assignees more generally, one would expect them to have used varying language to that effect throughout the agreement—or, at the very least, to have carved out certain rights explicitly. The Master Developer Agreement did neither. That brings us to another interpretive canon: Words “used by the parties in one sense will be given the same meaning through- out the contract in the absence of countervailing reasons.” 11 Wil- liston on Contracts § 32:6 (4th ed., May 2022 Update); see also Leadroot v. Leadroot, 810 A.2d 526, 532 (Md. Ct. Spec. App. 2002); Scalia & Garner, supra, at 170 (“A word or phrase is presumed to bear the same meaning throughout a text . . . .”). Neither Purug- ganan nor the district court offers any good reason why the terms “we” and “our” would mean something different in the forum-se- lection clause than in other parts of the Master Developer Agree- ment. And once we attribute identical meaning to those words throughout the contract, Purugganan’s position proves too much. He insists that “we” and “our” “can be interpreted only as referring

agree to reimburse you for all damages and expenses that you incur in any trademark infringement proceeding . . . .”); id. at 17 (“We may change our ownership or form and/or assign this Agreement . . . to a third party without restriction.”); id. at 25 (“Before you and we may bring an action in court against the other, you and we must first meet to mediate the dispute . . . .”). USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 12 of 36

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to Doctors Express.” Br. of Appellee at 15. But as just explained, the Master Developer Agreement employs those shorthand terms to delineate the parties’ ongoing rights and obligations. Accord- ingly, Purugganan’s proposed interpretation would deprive the as- signment—which again, the contract explicitly authorized—of meaningful effect. That can’t be what the parties intended. Rather, by accepting assignment of the Master Developer Agreement, AFC “step[ped] into the shoes of its assignor” and became the “we” and “our” referenced throughout the contract. Nationstar, 258 A.3d at 309; see also, e.g., Midland Funding, LLC v. Briesmeister, 640 S.W.3d 672, 682–85 (Ark. Ct. App. 2022) (concluding that “we,” “us,” and “our” included assignees for purposes of an arbitration clause even though the contract used those terms to reference the assignor). Purugganan raises three counterarguments—none of which persuades us. First, he invokes language from one of our cases stat- ing that a forum-selection clause “is viewed as a separate contract.” Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1238 (11th Cir. 2011). To the extent that Purugganan reads this language as con- straining us from looking to other provisions of the Master Devel- oper Agreement for assistance in discerning the meaning of “we” and “our” in the forum-selection clause, he is incorrect. The sev- erability of a forum-selection clause doesn’t alter the basic rule of construction that “[a] writing is interpreted as a whole, and all writ- ings that are part of the same transaction are interpreted together.” Restatement (Second) of Contracts § 202(2) (Am. Law. Inst. 1981); USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 13 of 36

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see also Rocks v. Brosius, 217 A.2d 531, 545 (Md. 1966) (similar). Nothing in our decision in Rucker suggests otherwise. Rucker stands for the more modest proposition that a forum-selection clause isn’t automatically rendered unenforceable if one of the par- ties claims that the contract of which it is part is void or voidable due to fraud, illegality, etc. See 632 F.3d at 1238. In that circum- stance, the parties must litigate the voidness issue in the forum they have chosen to resolve their disputes—that is, unless the forum- selection clause is itself unenforceable. See id. To the extent that Purugganan instead means, by his citation to Rucker, to argue that the forum-selection clause is a separate agreement that can’t be assigned along with the main contract, we disagree. It is part of the assignable Master Developer Agreement, even if the provision could be “sever[ed]” upon an allegation that the contract is void. Id. Further, we note that even if we were to read Rucker as broadly as Purugganan appears to, it wouldn’t nec- essarily help him; the Master Developer Agreement, after all, pro- vides that Doctors Express could “assign th[e] Agreement and any other agreement to a third party without restriction.” Doc. 1-2 at 17 (emphasis added). Second, Purugganan relies on a provision in the Master De- veloper Agreement stating that “nothing in th[e] Agreement is in- tended or deemed to confer any rights upon any person or legal entity not a party to th[e] Agreement.” Id. at 27. From that, he argues that only Doctors Express has the right to enforce the fo- rum-selection clause. This argument is likewise unavailing. To be USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 14 of 36

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sure, the quoted provision helped to clarify that there were no in- tended third-party beneficiaries when the agreement was executed. But recall that the contract also expressly contemplated assignment by Doctors Express, and thus that its assignees could obtain rights in the future. Simply put, then, the specific provision authorizing the transfer of rights by assignment trumps the general no-third- party-beneficiaries clause. See Fed. Ins. Co. v. Allstate Ins. Co., 341 A.2d 399, 407 (Md. 1975) (“Where two clauses or parts of a written agreement are apparently in conflict, and one is general in charac- ter and the other is specific, the specific stipulation will take prece- dence over the general, and control it.”). Finally, Purugganan asserts that the contract should be con- strued against AFC as the assignee of the drafter. But the rule of contra proferentum “applies ‘only as a last resort’ when the mean- ing of a provision remains ambiguous after exhausting the ordinary methods of interpretation.” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417 (2019) (quoting 3 Corbin on Contracts § 559 (1960)). For the reasons already explained, we don’t think that the floating fo- rum-selection clause here is ambiguous once it is understood in its proper context. See, e.g., Credible Behav. Health, 220 A.3d at 314. We therefore conclude that the forum-selection clause is ap- plicable to this suit in the Northern District of Alabama, where AFC has its principal place of business. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 15 of 36

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2 Having determined that this suit falls within the scope of the forum-selection clause, the question then becomes whether the clause is enforceable. We hold that it is. Where a forum-selection clause would otherwise apply, the party resisting it has the burden of demonstrating—by “a strong showing”—that enforcement would be “unfair or unreasonable under the circumstances.” Don’t Look Media, LLC v. Fly Victor Ltd., 999 F.3d 1284, 1297 (11th Cir. 2021) (quotation omitted). That is no easy task. To satisfy his burden, the party resisting enforce- ment must show that (1) the clause “was induced by fraud or over- reaching; (2) [he] would be deprived of [his] day in court because of inconvenience or unfairness; (3) the chosen law would deprive [him] of a remedy; or (4) enforcement of the clause would contra- vene public policy.” Id. (quotation omitted); accord Gilman, 692 A.2d at 463. Absent one of those circumstances, a court should en- force the forum-selection clause according to its terms. “Freedom of contract requires no less.” IFC Credit Corp. v. Aliano Bros. Gen. Contractors, Inc., 437 F.3d 606, 610 (7th Cir. 2006). Purugganan hasn’t met his burden of showing that enforc- ing the floating forum-selection clause here would be unreasonable or unjust. To start, we see no fraud or overreaching. In making this determination, “we look to whether the [forum-selection] clause was reasonably communicated.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (per curiam). This Court’s “two-part test of ‘reasonable communicativeness’ takes USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 16 of 36

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into account the clause’s physical characteristics and whether the [resisting party] had the ability to become meaningfully informed of the clause and to reject its terms.” Id. Purugganan doesn’t com- plain about the clause’s physical characteristics. And as already ex- plained, when read in context, the clause unambiguously extends to assignees. Thus, we believe that the contract’s express reference to the franchisor’s broad right of assignment gave Purugganan—a businessman who acknowledged that he had “read th[e] agree- ment” and was “afforded an opportunity” both to “ask any ques- tions” and to have the agreement “reviewed by an attorney,” Doc. 1-2 at 34–35—the ability to meaningfully inform himself about the forum-selection clause’s scope. So even if we construe Purug- ganan’s arguments to suggest fraud or overreaching, they don’t render the clause unenforceable. There is also no indication that Alabama is so unfair or in- convenient a forum as to effectively deprive Purugganan, a New York resident, of a remedy or his day in court. See Shute, 499 U.S. at 594–95 (enforcing forum-selection clause in an adhesion contract that required cruise-ship passengers from Washington State to liti- gate their dispute in Florida). 5

5 To be clear, we don’t hold that a floating forum-selection clause could never be unreasonable or unenforceable. This might be a different case if the agree- ment required Purugganan to litigate his “essentially local disputes in a remote alien forum.” The Bremen, 407 U.S. at 17. But we’re talking about Alabama, not Albania. And Purugganan appears to be a relatively sophisticated USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 17 of 36

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Nor has Purugganan identified any public policy that would be frustrated by enforcement. In fact, enforcing this forum-selec- tion clause furthers a fundamental policy of contract law—that par- ties are generally free to structure their affairs through legally bind- ing promises. See, e.g., 15 Corbin on Contracts § 79.4 (2022); The Bremen, 407 U.S. at 11. And even beyond respecting the parties’ rights to structure their affairs, there are good reasons to enforce an assignable, floating forum-selection clause. Most notably, “pub- lic policy supports the enforcement of the forum selection clause to allow for the marketability” of the commercial agreement. Lib- erty Bank, F.S.B. v. Best Litho, Inc., 737 N.W.2d 312, 317 (Iowa Ct. App. 2007). If courts refuse to enforce such provisions, “assignors [will] have to compensate their assignees for having to litigate in an inconvenient forum.” IFC Credit Corp., 437 F.3d at 613. In turn, “they will have to charge a higher price to their customers” and contractual partners. Id.; see also Shute, 499 U.S. at 594. Purugganan counters that “Alabama was not contemplated as a possible forum for this dispute because Doctors Express was not located there.”6 Br. of Appellee at 15. We have no reason to

businessman, investing $189,000 to become the master developer for his terri- tory. Those considerations further weigh against us holding that enforcement would be unreasonable in these circumstances. 6At oral argument, Purugganan retreated somewhat from this position, ad- mitting that Doctors Express could have moved to another state—like Ala- bama—and enforced the forum-selection clause there. See Oral Arg. at 18:13– 19:06. Even so, he maintained that Doctors Express’s successors or assigns USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 18 of 36

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doubt that Purugganan didn’t specifically imagine litigating in Ala- bama when he signed the Master Developer Agreement. But that frames the issue too narrowly. After all, Purugganan knew that the litigation forum could change over the 15-year life of this contract. He likewise knew that the bargained-for forum would depend on the location of the franchisor’s principal place of business “at the time the action is commenced.” And he knew that the franchisor could assign its rights and obligations under the agreement “to a third party without restriction.” These provisions provide “ample notice that the agreement[] could be assigned” and that Purug- ganan might have to litigate in a different forum—including, po- tentially, Alabama. Liberty Bank, 737 N.W.2d at 316. While he “may be dissatisfied with the litigation forum, it is not our task to save [him] from the consequences of an agreement [he] freely en- tered into.” Preferred Cap., Inc. v. Assocs. in Urology, 453 F.3d 718, 724 (6th Cir. 2006). * * * In sum, the district court erred in dismissing for lack of per- sonal jurisdiction. By voluntarily agreeing to an applicable and en- forceable floating forum-selection clause, Purugganan waived his right to contest personal jurisdiction in this dispute.

couldn’t do the same. As explained in text, we disagree with the distinction that Purugganan seeks to draw. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 19 of 36

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III It follows from what we have said that Purugganan also waived any objections to venue. 7 For the reasons already ex- plained, Purugganan agreed to litigate in the “state or judicial dis- trict in which we”—which we have held includes AFC—“ha[d] our”—which we have held includes AFC’s—“principal place of business at the time th[is] action [was] commenced.” So too, he agreed to “waive any objection” to “venue” in those courts. At the time of filing, AFC had its principal place of business in Shelby County, which is in the Northern District of Alabama. See 28 U.S.C. § 81(a)(3). And that settles the venue issue. Because the forum-selection clause is both applicable and enforceable here, Purugganan can’t raise his venue objection now. See Peterson v. BMI Refractories, 124 F.3d 1386, 1391 (11th Cir. 1997) (“As with other procedural defects, parties can waive venue requirements.”). In response, Purugganan offers no reason why he might have consented to personal jurisdiction but not venue. Instead, he submits that AFC “[forfeited] its venue argument, which does not appear in its opening brief.” Br. of Appellee at 30. That is incor- rect—AFC’s brief “specifically and clearly identified” the venue is- sue. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). AFC framed the issue statement in its brief as “whether

7The district court didn’t address venue, so normally we wouldn’t either. That said, because the venue issue rises or falls, as a matter of law, with the personal-jurisdiction issue, we see no reason to delay its resolution. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 20 of 36

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consent to personal jurisdiction and venue” was established by the forum-selection clause. Br. of Appellant at 1 (emphasis added). It then devoted three of the argument’s nine pages to venue, under a subject heading that specifically referenced the topic. See id. at 14– 16. Finally, AFC closed its brief by asking us to hold that Purug- ganan “has consented to venue in Alabama,” in addition to “re- vers[ing] the district court’s judgment of dismissal” for lack of per- sonal jurisdiction. Id. at 17. Taken together, that was more than enough to preserve the venue issue. * * * We REVERSE and REMAND for further proceedings con- sistent with this opinion. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 21 of 36

20-13849 TJOFLAT, J., Concurring 1

TJOFLAT, Circuit Judge, Concurring: I concur because I agree the forum selection clause provides the Northern District of Alabama with personal jurisdiction over Purugganan. I write separately to demonstrate the futility and in- efficiency of seeking a declaration on the meaning of a forum selec- tion clause when, as here, a parallel proceeding in another court is either imminent or ongoing. To make this demonstration, I first lay out the relevant facts and decisions from the ongoing parallel proceedings in the United States District Court for the District of Connecticut. With that in mind, I then explain why our decision today will have no impact on the Connecticut District Court’s de- cision-making. Finally, I close with a discussion on the foolishness of this sort of anticipatory litigation. I. As the Majority opinion recounts, Doctors Express Franchis- ing and Danilo Purugganan entered into a Master Developer Agreement (“MDA”) in 2009 that contained a floating forum selec- tion clause. Maj. Op. at 2–3. Four years later, Doctors Express as- signed its rights under the MDA to AFC Franchising and notified Purugganan of this assignment. Id. at 2. Eventually, AFC and Purugganan’s relationship “soured” and Purugganan notified AFC of his intent to sue in either Connecticut or New York. Id. at 3. In response, AFC filed this declaratory judgment action in the Circuit Court of Shelby County, Alabama, on March 6, 2020, seeking a dec- laration that “the forum selection clause requires that any litigation be conducted in Alabama.” Purugganan then removed the suit to USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 22 of 36

2 TJOFLAT J., Concurring 20-13849

the Northern District of Alabama on April 2, 2020, 1 and there asked the District Court to either dismiss the case for lack of personal ju- risdiction and improper venue or to transfer the case to the District of Connecticut. Id. at 4. The Northern District of Alabama granted the motion to dismiss the case for lack of personal jurisdiction and AFC appealed, resulting in our decision above. Id. at 4–5. But while this suit was ongoing, the parties have litigated this exact same issue three different times in the District of Con- necticut. 2 On March 17, 2020, eleven days after AFC filed this suit in Shelby County, Purugganan filed suit against AFC in the District of Connecticut, just as he told AFC he would. In his complaint,

1 AFC also sought a declaration that the limited exclusivity clause of the MDA allows AFC “to develop company-owned franchises in the territory embraced by the Master Development Agreement.” This second claim is what enabled Purugganan to meet 28 U.S.C. § 1332(a)’s $75,000 amount in controversy re- quirement for diversity jurisdiction. See Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (explaining that plaintiffs seek- ing declaratory relief under diversity jurisdiction must claim that the amount in controversy exceeds $75,000). Likewise, this second claim also forms the basis of AFC’s standing, as we must decide whether the Northern District of Alabama has personal jurisdiction over Purugganan before AFC can pursue its second claim against him. 2 As neither party put into evidence their filings in the District of Connecticut, I take judicial notice of that Court’s docket. See Rothenberg v. Sec. Mgmt. Co., Inc., 667 F.2d 958, 961 n.8 (11th Cir. 1982) (“Normally, an appellate court will not consider facts that were not presented to the district court. We are, however, free to take judicial notice of subsequent developments in cases that are a matter of public record and are relevant to the appeal.” (citations omit- ted)). USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 23 of 36

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Purugganan sought (among other claims) a declaration that the MDA does not permit suit in Alabama and/or that the MDA’s float- ing forum selection clause is unenforceable. Predictably, AFC re- sponded on April 9, 2020, by moving to dismiss the case for im- proper venue based on the forum selection clause under Fed. R. Civ. P. 12(b)(3). 3 The Connecticut District Court analyzed AFC’s motion to dismiss under the Second Circuit’s four step test for determining whether a forum selection clause is valid and enforceable. Purug- ganan v. AFC Franchising, LLC (“Purugganan I”), No. 3:20-CV- 00360(KAD), 2020 WL 2494718, at *2 (D. Conn. May 13, 2020) (cit- ing Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019)). Under this test, a district court must consider three factors in deter- mining whether the presumption of enforceability applies to a forum selection clause: whether (1) the clause was reasonably communicated to the party re- sisting its enforcement; (2) the clause is mandatory or permissive; and (3) the claims and parties to the dis- pute are subject to the clause.

3As the Connecticut District Court correctly noted, Fed. R. Civ. P. 12(b)(3) was the incorrect vehicle for enforcing the forum selection clause as venue was proper in Connecticut. AFC Franchising, LLC (“Purugganan I”), No. 3:20-CV-00360(KAD), 2020 WL 2494718, at *1 (D. Conn. May 13, 2020) (citing Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Instead, the Court construed AFC’s Rule 12(b)(3) motion as a motion to dismiss under the doctrine of forum non conveniens. Id. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 24 of 36

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Id. (quoting Fasano, 921 F.3d at 335). “Satisfaction of these factors creates a presumption of enforceability, which can be overcome at step four by ‘a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.’” Id. (quoting Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014)). Steps one and four of this test concern the enforceability of the forum selection clause and is governed by federal law, while steps two and three concern the interpretation of the clause and is governed by state contract law. See Martinez, 740 F.3d at 217–18. Applying this test, the Connecticut District Court “an- swer[ed] the inquiry at both steps one and three in the negative and therefore [held that] the clause does not enjoy the presumption of enforceability.” Purugganan I, 2020 WL 2494718, at *3. To start with, the Connecticut Court interpreted the forum selection clause as only applying to Doctors Express and not its assignees using es- sentially the same reasoning that Purugganan put forth here. Com- pare id. and Maj. Op. at 8–14. Consequently, the Court held that “interpreting the MDA’s forum selection clause as providing ade- quate notice to the Plaintiff that he might have to litigate in the forum of the principal place of business of some future, unknown assignee of Doctors Express is simply a bridge too far . . . .” Purug- ganan I, 2020 WL 2494718, at *4. Similarly, the Court found that “AFC’s enforcement of the forum selection clause was not, in any way, foreseeable to Purugganan” and thus AFC was not “closely related” enough to Purugganan to enforce the forum selection USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 25 of 36

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clause against Purugganan under step three. Id. (citing Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 722–23 (2d Cir. 2013)). Finally, the Court concluded that it would “decline to en- force the forum selection clause at step four of the analysis” even if the forum selection clause was entitled to a presumption of en- forceability under Second Circuit precedent. Id. After the Connecticut District Court denied AFC’s motion to dismiss, AFC moved for reconsideration. Purugganan v. AFC Franchising, LLC (“Purugganan II”), No. 3:20-cv-00360 (KAD), 2020 WL 3000761, at *1 (D. Conn. June 4, 2020). In deciding that motion, the Connecticut District Court made its views on the fo- rum selection clause even plainer: [E]ven considering these arguments anew, the Court remains unpersuaded that the MDA’s forum selection clause requires that this suit be litigated in Alabama. Indeed, perhaps the only analytical point that the Court might clarify from its prior memorandum of decision is that, in the Court’s view, this is not a close call. What AFC asks this Court to do—apply a float- ing forum selection clause to a future, unknown and unidentified assignee of a contracting party absent ex- press language extending the forum selection provi- sion to that party’s assignee or successor-in-interest— reaches so far beyond the available case law uphold- ing floating forum selection clauses that even if the cases AFC cites were binding on the Court (which they are not), the Court would still find them USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 26 of 36

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distinguishable for the very reasons articulated in its previous memorandum of decision.

Id. at *2. Notably, the Court also stated that [E]ven if the Court were to stretch so far as to find the forum selection clause reasonably communicated to Purugganan and reasonably foreseeable with respect to its enforcement by AFC, federal common law per- mits the Court to decline to enforce a forum selection clause when to do so would create an injustice and contravene the policies otherwise favoring enforce- ment . . . . In short, to enforce the forum selection clause in these circumstances would be to promote the epitome of uncertainty—blindsiding the Plaintiff with an obligation to litigate in Alabama—a forum completely inscrutable from the text of the con- tract. Cf. Jig Third Corp. v. Puritan Marine Ins. Un- derwriters Corp., 519 F.2d 171, 179 (5th Cir. 1975) (“One can buy a pig in a poke, but only if the parties fashion their contract and compound their words with the pig’s possible infirmities in mind.”).

Id. at *3. On top of its motion to dismiss and the subsequent motion for reconsideration, AFC also counterclaimed in its answer for a declaration that the proper venue under the forum selection clause is Alabama. Purugganan v. AFC Franchising, LLC (“Purugganan III”), No. 3:20-CV-00360 (KAD), 2021 WL 5301522, at *2 (D. Conn. Nov. 15, 2021). In response, Purugganan moved for a judgment on USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 27 of 36

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the pleadings dismissing this counterclaim based on the Connecti- cut District Court’s prior decisions, leading to the parties litigating the forum selection clause for the third time in the District of Con- necticut. Id. at *1. Unsurprisingly, the Connecticut District Court granted Purugganan’s motion for judgment on the pleadings in rel- evant part. Id. at *2–3. As a result of these decisions, the parties have now been liti- gating their claims in the District of Connecticut for almost two and a half years. In that time, the parties have engaged in extensive motion practice, including motions for temporary restraining or- ders and preliminary injunctions, as well as several court-ordered settlement negotiations. As of this writing, the Connecticut Dis- trict Court is considering a partial motion for summary judgment argued last April. In short, both the parties and the Connecticut District Court have already invested a great deal of time and effort into litigating in Connecticut. II. Our decision today will return this case to the Northern Dis- trict of Alabama. On remand, the District Court will require Purugganan to answer AFC’s complaint, and the parties will then proceed to litigate the case. Should that Court see fit to enter a declaratory judgment about the validity of the forum selection USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 28 of 36

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clause, 4 then and only then may AFC argue in the District of Con- necticut that the forum selection clause issue is precluded by the Northern District of Alabama’s decision. 5

4 The Supreme Court has made “clear that district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdic- tional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct. 2137, 2140 (1995). This may well be a case where the “district court, in the sound exercise of its judgment, determines after a complaint is filed that a de- claratory judgment will serve no useful purpose.” Id. at 288, 115 S. Ct. at 2143. After all, “declaratory judgment actions are equitable in nature.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). So, the District Court would consider all relevant equitable factors, including whether AFC already has an adequate remedy at law in the District of Connecticut and whether it is proper for a district court in Alabama to decide an issue before the District of Connecticut. Another consideration would be the first-filed rule. Typically, the first- filed rule would favor having the Northern District of Alabama decide this de- claratory judgment action absent compelling circumstances. Id. However, “[i]n determining whether compelling circumstances exist, we have recog- nized that for declaratory judgment actions ‘one equitable consideration . . . is whether the . . . action was filed in apparent anticipation of the other pending proceeding.’” Id. (quoting Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.3d 1194, 1195 (11th Cir. 1982)). And we have explicitly held that district courts do not abuse their discretion when “dismiss[ing] a declaratory judgment ac- tion . . . filed in apparent anticipation of another proceeding.” Id. at 1137. 5 Of course, AFC may run to the District of Connecticut as soon as this opinion

is published and erroneously argue that we have decided the forum selection clause issue for the Connecticut District Court with this opinion. See Purug- ganan III, 2021 WL 5301522, at *2 n.3 (“As the court has previously indicated, if the Eleventh Circuit Court of Appeals determines that the forum selection USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 29 of 36

20-13849 TJOFLAT, J., Concurring 9

So, unfortunately for AFC, our decision today will have no binding effect on the Connecticut District Court. All we decide is that the Northern District of Alabama has personal jurisdiction over Purugganan in this declaratory judgment action. What’s more, AFC’s self-inflicted legal woes will continue even if the Northern District of Alabama does grant AFC the declaratory relief it seeks. Should the Northern District of Alabama grant declara- tory relief and declare the forum selection clause valid, the Con- necticut District Court will then have to independently determine (after AFC amends it answer to plead issue preclusion) whether (1) to give that decision preclusive effect under the Second Circuit’s issue preclusion test, (2) if so, whether the forum selection clause is enforceable under Second Circuit precedent, not Eleventh Cir- cuit precedent, under the circumstances presented in Connecticut, and (3) if so, whether the Connecticut District Court should exer- cise its discretion (considering the time already invested in Con- necticut) to transfer the case under 28 U.S.C. § 1404(a) or dismiss under the doctrine of forums non conveniens. Then, any decision the Connecticut District Court makes will be reviewed by the

clause is enforceable by AFC against Purugganan, then this Court will likely honor that determination, regardless the Court's own differing opinion.”). However, all we decide today is whether the Northern District of Alabama has personal jurisdiction over Purugganan, i.e., that Purugganan is present in Alabama. The Northern District of Alabama, not the Eleventh Circuit, must decide whether to issue a declaratory judgment that AFC could then use against Purugganan in the District of Connecticut. Then, the Connecticut Dis- trict Court would have to perform the full analysis that I outline here. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 30 of 36

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Second Circuit, either through an appeal from final judgment or an interlocutory appeal. Let’s take this analysis step-by-step. To start with, issue pre- clusion “operate[s] across a two-lawsuit continuum.” Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1214 (11th Cir. 2017) (en banc) (Tjoflat, J., dissenting). As I have previously explained, First, parties litigate a dispute to a final judgment on the merits. Second, in a later, separate suit between the parties, one party brings to court evidence of an earlier judgment and contends that issue . . . preclu- sion should apply to prevent her opponent from liti- gating a previously decided issue . . . . In this two- lawsuit scheme, the first court is the “rendering” court and the second is the “recognizing” court.

Id. at 1214–15 (Tjoflat, J., dissenting). If the Northern District of Alabama grants declaratory relief, then it would be the rendering court and the Connecticut District Court would be the recognizing court. So, before giving the declaratory judgment preclusive effect, the Connecticut District Court would have a duty to review the record created in the Northern District of Alabama and then to an- alyze the judgment under the Second Circuit’s issue preclusion test, including whether the issue before the District of Connecticut was actually litigated 6 in the Northern District of Alabama. See

6Iemphasize the “actually litigated” part of the issue preclusion test because I doubt the parties will actually litigate in the Northern District of Alabama the USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 31 of 36

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CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 77 (2d Cir. 2017) (“Issue Preclusion is permissible as to a given is- sue if: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous pro- ceeding [by the rendering court]; (3) the party had a full and fair opportunity to litigate the issue; (4) the resolution of the issue was necessary to support a valid and final judgment on the merits; and (5) application of the doctrine is fair.” (alterations omitted)). Fur- ther, the Northern District of Alabama (and this Court) cannot de- cide what preclusive effect, if any, a declaratory judgment would have in the District of Connecticut. Graham, 857 F.3d at 1192 (Tjoflat, J., dissenting) (“Courts tasked with determining whether to enforce a rendering court’s judgment make those determina- tions themselves.”). Should the Connecticut District Court find that the North- ern District of Alabama’s declaratory judgment ought to be given some preclusive effect, it would still need to independently

identical issue that the District of Connecticut will have to consider. To “ac- tually litigate” the Connecticut District Court’s issue, the Northern District of Alabama would need the whole ball of wax from the Connecticut case. At the least, this would include all the relevant evidence from the District of Con- necticut and consideration of the circumstances presented in Connecticut at the time of the Northern District of Alabama’s judgment. The District (or in this case, Magistrate) Judge for the Northern District of Alabama would essen- tially have to pretend he was designated to sit in the District of Connecticut to hear this case. Considering the advanced stage of the Connecticut litigation, the Northern District of Alabama may well be better off simply refusing to grant declaratory judgment. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 32 of 36

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determine whether to enforce the forum selection clause in the cir- cumstances before it under Second Circuit precedent, not Eleventh Circuit precedent. Indeed, the Second Circuit’s test appears to be materially different from this Court’s test. Our Court simply de- cides whether the forum selection clause applies as a matter of con- tract interpretation and then whether “enforcement would be ‘un- fair or unreasonable under the circumstances.’” Maj. Op. at 15 (quoting Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1297 (11th Cir. 2021)). By contrast, the Second Circuit has a three- step test for determining whether a forum selection clause is “pre- sumptively enforceable,” and then an additional step where courts decide whether the presumption can be overcome by “making a sufficiently strong showing that enforcement would be unreasona- ble or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Martinez, 740 F.3d at 217 (quoting Phillips v. Audio Active Ltd., 494 F.3d 378, 383–84 (2d Cir. 2007)). In Purug- ganan I and II, the Connecticut District Court declined to enforce the forum selection clause under steps one, three, and four of the Second Circuit test as it has been interpreted by Second Circuit caselaw, and there is nothing stopping the Connecticut District Court from doing so again even if it accepts the Northern District of Alabama’s potential future declaratory judgment as preclusive. Further, even if the Connecticut District Court decides the forum selection clause is enforceable under Second Circuit prece- dent, it would still have to independently decide whether to trans- fer or dismiss the case under the public interest factors. As the USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 33 of 36

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Supreme Court explained in Atlantic Marine, the effect of a valid and enforceable forum selection clause is that all the private factors under § 1404(a) and the doctrine of forum non conveniens “weigh in favor of the transfer” or dismissal. Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 67, 134 S. Ct. 568, 584 (2013). Thus, Purugganan would have to show that the “public- interest factors overwhelmingly disfavor a transfer” to defeat a § 1404(a) motion. Id. But Purugganan could, theoretically, make such a showing, and doing so would also allow the Connecticut District Court to refuse to enforce the forum selection clause. Finally, whatever decision the Connecticut District Court makes will inevitably be reviewed by the Second Circuit. Should the Connecticut District Court refuse to enforce the forum selec- tion clause (for whatever reason), the case will proceed in Connect- icut as normal and its decision will be reviewable on appeal from final judgment. Should the Connecticut District Court dismiss the case under the doctrine of forums non conveniens, then its decision will also be immediately reviewable by the Second Circuit. Even if the Connecticut District Court decides to transfer the case to an Alabama district court under § 1404(a), Purugganan could still seek review in the Second Circuit by petitioning for a writ of manda- mus. Golconda Min. Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir. 1966) (“A petition for mandamus rather than a request for leave to appeal under 28 U.S.C. § 1292(b) is the proper procedure to seek review of a trial court’s disposition of a § 1404(a) motion, chal- lenged for abuse of discretion.”). Either way, the Second Circuit USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 34 of 36

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will ultimately have the final say on whether to enforce the forum selection clause, not this Circuit.7 III. The MDA’s forum selection clause has now been litigated five times: three times in the District of Connecticut, once in the Northern District of Alabama, and once in the Eleventh Circuit. Before this litigation is over, this issue could easily be litigated four times more: (1) in the Northern District of Alabama on remand from this appeal, (2) again in the Eleventh Circuit once the North- ern District of Alabama makes its decision, (3) again in the District of Connecticut following the Northern District of Alabama’s deci- sion, and (4) finally, in the Second Circuit. Obviously, this is not how the American legal system is supposed to work. In the typical case, important issues are litigated twice, not nine times. AFC’s atypical litigation strategy has thus cost itself, Purugganan, and the federal judicial system a great deal of time and money for little to no benefit. Imagine if AFC had conducted this litigation in a sensible manner. Once Purugganan informed AFC of his intention to sue in Connecticut or New York, a wise lawyer would have realized that AFC must litigate the forum selection clause in whatever court Purugganan filed in regardless of any declaratory judgment action AFC might file in Alabama. So, instead of filing this suit in

7 Unless, of course, the Supreme Court decides to grant certiorari. USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 35 of 36

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Alabama, the wise lawyer would have simply prepared his argu- ments under the forum selection clause and allowed Purugganan to file suit wherever he wished, as is his right as the real plaintiff in this litigation. Then, once Purugganan filed his suit in the District of Connecticut, AFC could have moved for transfer or dismissal based on the forum selection clause and petitioned for a writ of mandamus from the Second Circuit had the Connecticut District Court still denied AFC’s motion. This course of action would have resolved the forum selection clause issue in a timely and efficient manner. More importantly, AFC’s litigation strategy has detrimental impacts on the federal judicial system beyond mere inefficiency. It is not the job of the Northern District of Alabama or the Eleventh Circuit to decide whether the District of Connecticut should apply the MDA’s forum selection clause and transfer Purugganan’s ac- tion to Alabama. That responsibility lies solely with the District of Connecticut and the Second Circuit. Attempting to use a declara- tory judgment action to have a district or circuit court “grade the papers” of a district court outside its circuit undermines respect for the federal judiciary and pushes the boundaries of federal court ju- risdiction. Indeed, our opinion today is about as close as a federal court can get to issuing an advisory opinion without technically vi- olating Article III of the U.S. Constitution. I do not know how this litigation will ultimately be resolved. Certainly, our decision today does little for the parties, the North- ern District of Alabama, the Connecticut District Court, and the USCA11 Case: 20-13849 Date Filed: 08/11/2022 Page: 36 of 36

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Second Circuit. Hope, however, springs eternal, and perhaps fu- ture litigants will be able to avoid the perils that AFC has inflicted upon itself.