John M. Kirby
Bryant v. AP Industries | Forum Selection Clause
In an unpublished decision from August 20, 2013, the Court of Appeals addressed many important issues involving personal jurisdiction and an arbitration clause.
In Bryant v. AP Industries, the Plaintiff (NC resident) sued a Canadian individual and Canadian companies for (among others) fraud, arising from his employment with the defendant-employer (and its termination of his employment and failure to pay commissions).
In 2010 the parties revised their agreement, which included a forum selection clause. The defendants argued that Venue was proper in Canada based on the forum selection clause. The court first ruled that the plaintiff's claims were primarily pursuant to a 1998 agreement (and not the 2010 agreement), and that therefore the clause did not apply. The court further held that G.S. 22B-3 did not clearly apply because the record did not establish that the contract was entered in North Carolina. This would turn on where the contract was last signed.
As for personal jurisdiction, the court held that there were sufficient contacts to confer jurisdiction over the individual defendant and one corporate defendant. The individual traveled to North Carolina 2 times per year to attend trade shows, and he recruited the plaintiff. The fact that his actions were taken for his employer did not protect him from being subject to jurisdiction in North Carolina.
John Kirby has litigated claims involving Forum Selection Clauses in North Carolina, and wrote an Article in the North carolina Law Review in 1993 regarding the enforceability of Forum Selection Clauses.