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United States Court of Appeals,
Fifth Circuit.
No. 94-10463.
KEVLIN SERVICES, INC., Plaintiff-Appellant,
v.
LEXINGTON STATE BANK, Defendant-Appellee.
Feb. 27, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Kevlin Services, Inc. ("Kevlin"), appeals
the district court's granting of Defendant-Appellee Lexington State
Bank's ("Lexington") motion to dismiss. Kelvin argues that the
district court erred in failing to enforce a valid and enforceable
choice of forum provision in the contract between the parties
providing for venue in Dallas County, Texas. We REVERSE AND
REMAND.
I.
On May 24, 1993, Kevlin, a Texas corporation with its
principal place of business in Dallas County, Texas, and Lexington,
a banking institution organized and existing under the laws of the
State of North Carolina with its principal place of business in
Lexington, North Carolina, executed a contract in which Lexington
contracted with Kevlin to administer benefit services to Lexington
customers who participated in their "BanClub" program. In exchange
for Kevlin's services under the contract, Lexington was to promote
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the BanClub program to its customers and pay Kevlin a monthly fee
based on the total number of customers who participated in the
BanClub program. The pre-printed form contract contains a choice
of forum provision stating:
This contract shall be interpreted and construed in accordance
with the laws of the State of Texas. The legal venue of this
contract and any disputes arising from it shall be settled in
Dallas County, Texas.
Prior to the contract's effective date of October 1, 1993,
Lexington notified Kevlin that it was withdrawing its acceptance of
the contract.
On January 19, 1994, Kevlin filed suit in Dallas County, Texas
alleging breach of contract. On February 18, 1994, Lexington
removed the case to federal court on grounds of diversity.
Lexington filed a motion to dismiss for lack of personal
jurisdiction or, in the alternative, to transfer venue. The
district court dismissed the case on April 7, 1994 on the grounds
that Kevlin failed to adduce evidence of minimum contacts in the
State of Texas by Lexington to support the exercise of personal
jurisdiction, and that the choice of forum provision in the
contract was ambiguous. Kevlin subsequently filed a motion to
alter or amend the judgment which was denied on April 25, 1994.
II.
We review de novo the district court's granting of a motion
to dismiss for lack of personal jurisdiction.1 The plaintiff bears
1Wilson v. Belin, 20 F.3d 644, 647-48 (5th Cir.), cert.
denied, --- U.S. ----, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994)
(citing Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir.1990)).
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the burden of establishing the court's personal jurisdiction over
the nonresident defendant.2 "When the district court rules on the
motion without an evidentiary hearing, the plaintiff may bear his
burden by presenting a prima facie case that personal jurisdiction
is proper."3
III.
Kevlin contends that the district court erred in dismissing
the case for lack of personal jurisdiction over Lexington because
the contract between Kevlin and Lexington contains a valid and
enforceable choice of forum provision. Specifically, Kevlin argues
that the language of the provision unambiguously states an
effective designation of an exclusive forum, and that because
Lexington signed the contract it is bound to the contract terms.
Therefore, Lexington has waived any objection to venue and personal
jurisdiction.
A forum selection provision in a written contract is prima
facie valid and enforceable unless the opposing party shows that
enforcement would be unreasonable.4 This rule also applies to form
contracts containing a choice of forum provision.5 Our review of
the language of the contract between Kevlin and Lexington reveals
2Id.; see also Stuart v. Spademan, 772 F.2d 1185, 1192 (5th
Cir.1985).
3Id. (citing Thompson v. Chrysler Motors Corp., 755 F.2d
1162, 1165 (5th Cir.1985)).
4M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92
S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972).
5See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111
S.Ct. 1522, 1527, 113 L.Ed.2d 622 (1991).
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no ambiguity in the interpretation of the language of the choice of
forum provision. We find that the only reasonable interpretation
is that the law of the State of Texas applies and that proper venue
lies in Dallas County, Texas. Because Lexington has failed to
sufficiently prove that the enforcement of the choice of forum
provision would be unreasonable due to fraud or overreaching, we
find that the choice of forum provision validly contracts for venue
in Dallas County, Texas, thereby granting the district court
jurisdiction over Lexington. Accordingly, we find that the
district court erred in refusing to enforce the choice of forum
provision of the contract executed between Kevlin and Lexington and
in dismissing the case for lack of personal jurisdiction.
IV.
Because we find that the choice of forum provision contained
in the contract between Kevlin and Lexington is valid and
enforceable, we REVERSE the judgment of the district court and
REMAND for proceedings consistent with this opinion.

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