D. Colo. Notes Split Re Whether Enforcement of a Forum Selection Clause Is A Procedural or Substantive Matter

Per ADT Sec. Services, Inc. v. Apex Alarm, LLC, 430 F.Supp.2d 1199 (D. Colo. May 09, 2006):

The authorities are divided on the question whether enforcement of a forum selection clause is a procedural-governed by federal law-or substantive-governed by state law-matter for purposes of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Second, Fifth, and Ninth Circuits refer to federal law when considering motions to dismiss predicated upon forum selection clauses. Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); International Software Sys. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir.1996); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988). The Third Circuit has applied state law. General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 357 (3d Cir.1986). The Fourth Circuit in an unpublished opinion has applied state law without explanation. Nutter v. New Rents, Inc., 1991 WL 193490 (4th Cir.1991). Other circuits have declined to take a position on the question. Lambert v. Kysar, 983 F.2d 1110, 1116 (1st Cir.1993); Northwestern Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir.1990); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 n. 4 (8th Cir.1999).

The Tenth Circuit has not ruled expressly on this issue. * * *