FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. NO. 4:17-CV-00355-GKF-FHM)
Samanthia S. Marshall (W. Kirk Turner with her on the
briefs), McAffee & Taft, P.C., Tulsa, Oklahoma, for
Richard D. Salgado, Dentons U.S. LLP (Wade P. K. Carr,
Dentons U.S. LLP, Kansas City, Missouri, with him on the
brief), Dallas, Texas, for Appellee.
TYMKOVICH, Chief Judge, McKAY and CARSON, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
Canada bought ten large heat-exchanger units from
Kelvion's Oklahoma plant for use in PetroChina's oil
and gas operations. Their contract included a mandatory
forum-selection clause subjecting the parties to Canadian
jurisdiction. After a dispute over unanticipated delivery
costs that PetroChina refused to pay, Kelvion brought suit in
Oklahoma. It asserted quantum meruit and unjust enrichment
claims, arguing the forum-selection clause did not apply to
its equitable claims.
district court disagreed, concluding the forum-selection
clause applied, and dismissed the suit under the doctrine of
forum non conveniens. We agree- the parties plainly
intended any dispute arising from their contract would be
heard in Canadian courts. We affirm the district court's
dismissal for forum non conveniens.
August 2012, PetroChina Canada, a Canadian corporation,
purchased ten heat exchanger units from Kelvion's
principal place of business in Catoosa,
Oklahoma. The parties agreed Kelvion would
manufacture the exchangers "and arrange for their
shipment to [PetroChina's] facility" in Alberta,
Canada. App. 158. The Purchase Order Agreement contained the
This Purchase Order shall be governed by and construed in
accordance with the laws of the Province of Alberta and the
Parties agree to accept and submit to the exclusive
jurisdiction of the courts of the Province of Alberta.
Id. 228, § 20.1. The Purchase Order also
provided that "[c]ost changes . . . will not be accepted
unless official change order(s) have been issued by
[PetroChina]." Id. 202. Once approved, Change
Orders became incorporated into the Purchase Order as
provided PetroChina a shipping estimate and shipped the
exchangers from Oklahoma in February 2014. Because of
unanticipated delays and seasonal restrictions on shipping
weights over Canadian roads in the winter, delivery costs
exceeded Kelvion's original estimate by $671, 324.
Kelvion never submitted nor did PetroChina approve any change
order for the increased shipping costs.
long period of negotiation, Kelvion filed suit in Oklahoma
state court in May 2017 asserting breach of contract, quantum
meruit, and unjust enrichment claims. PetroChina promptly
removed to federal court and filed a motion to dismiss for
forum non conveniens based on the Purchase
Order's mandatory forum-selection clause. Kelvion dropped
its breach of contract claim, but insisted the
forum-selection clause did not apply to its equitable claims
because they addressed matters outside the scope of the
contract. The district court dismissed for forum non
conveniens after determining the Purchase Order's
forum-selection clause governed Kelvion's claims.