Martin vs. Walmart Supercenter Store #2047

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JASON MARTIN,
Plaintiff,
v.
WALMART SUPERCENTER STORE
#2074, AKA WALMART INC., AKA
WAL-MART ASSOCIATES, INC.,
AKA WAL-MART,
Defendant and
Third-Party Plaintiff,
v.
CBRE, INC., VALLEY CAPITAL, INC.
and DENALI INDUSTRIAL, LLC,
Third-Party Defendants.
Case No. 3:22-cv-00153-SLG
ORDER RE ALL PENDING MOTIONS
Before 	the 	Court 	at 	Docket 	53 	is 	third-party 	Defendant 	CBRE, 	Inc.’s
(“CBRE”) Motion to Dismiss Walmart, Inc.’s (“Walmart”) Third-Party Complaint for
lack of subject matter jurisdiction and improper venue pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(3).1 	The motion is fully briefed.2 	Oral
1 See also Docket 54 (Mem. in Support of CBRE’s Mot. to Dismiss); Docket 55 (Aff. in Support of
CBRE’s Mem. and Mot. to Dismiss); Docket 56 (Decl. of Robert P. Blasco in Support of CBRE’s
Mot. to Dismiss).
2 See Docket 69 (Walmart’s Resp. in Opp’n to Mot. to Dismiss); Docket 70 (CBRE’s Reply to
Resp. in Opp’n to Mot. to Dismiss).
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argument 	was 	held 	on 	October 	13, 	2023.3 	Walmart 	subsequently 	filed 	a
Conditional Motion to Amend its Third-Party Complaint at Docket 79, to which
CBRE filed a response at Docket 80 and Walmart replied at Docket 84.
BACKGROUND
Jason Martin sued Walmart in Alaska state court for negligence after he
slipped and fell on ice on a sidewalk outside a Walmart store in Wasilla, Alaska.4
Walmart 	removed 	the 	action 	to 	federal 	court 	invoking 	diversity 	jurisdiction.5
Walmart then filed a third-party complaint against CBRE, alleging that it contracted
with CBRE to maintain the sidewalk.6 In the third-party complaint, Walmart alleges
that CBRE breached the Master Services Agreement (“MSA”) between Walmart
and CBRE “by failing to agree to fully defend and indemnify Walmart against Mr.
Martin’s claims without reservation.”7 	Walmart also asserts that CBRE breached
3 Docket 78.
4 Docket 1-1 at 1-2; Docket 26 at ¶ 8.
5 Docket 1 at 1-3.
6 Docket 26 at ¶¶ 8, 11, 20-22. Walmart sued two additional third-party defendants in its third-
party complaint.
7 Docket 26 at ¶ 31. 	CBRE’s insurance company accepted Walmart’s tender of defense and
indemnity regarding Mr. Martin’s complaint and agreed to provide Walmart’s defense to Mr.
Martin’s claims, except to the extent that Walmart was negligent. Docket 55-2 at 1-2. The MSA
provided that “Contractor shall protect, defend, hold harmless and indemnify Walmart, its affiliates,
officers, directors, employees and agents, from and against any and all lawsuits, claims,
demands, actions, liabilities, losses, damages, costs and expenses . . . that may be asserted by
any third party, to the extent arising from or related to . . . (ii) death of, or injury to, any person,
damage to any property, or any other damage or loss, by whomsoever suffered, to the extent
resulting from Contractor’s performance of the Services or this Agreement[.] . . . Notwithstanding
the foregoing, or anything to the contrary in this Agreement, Contractor shall not be liable to
indemnify Walmart for claims to the extent resulting from Walmart’s negligence or wrongful acts,
or premises claims unrelated to Contractor’s Services.” Docket 55-1 at 5.
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the MSA “[i]f the jury finds that the area of Mr. Martin’s slip and fall was not
reasonably maintained and CBRE, Inc. did not have a valid service agreement with
[another third-party defendant].” 8 And Walmart maintains that “if the jury finds that
the subject lot was not reasonably maintained and proximately caused Mr. Martin’s
injuries . . . CBRE, Inc. must have their share of the fault apportioned pursuant to
[Alaska Statute (“AS”)] § 09.17.080 and AS § 09.17.900 in failing to comply with,
or to ensure compliance with[,] the terms and conditions of the [MSA].”9
CBRE filed an answer to Walmart’s third-party complaint10 and subsequently
filed a motion to dismiss the third-party complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(3). 11 	CBRE seeks to enforce a forum-selection
clause in the MSA requiring that “any action, suit, or proceeding concerning [the
MSA] or any Scope of Work shall be brought only in the federal or state courts of
Arkansas.” 12 CBRE asserts that Walmart’s breach of contract and apportionment
of fault claims fall within the scope of the forum-selection clause because they are
both premised on the MSA and the forum-selection clause is mandatory.13
8 Docket 26 at ¶ 36.
9 Docket 26 at ¶ 47.
10 Docket 49.
11 Docket 53.
12 Docket 55-1 at 8 (MSA); see Docket 54 at 1-2.
13 Docket 54 at 5-6.
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In response, Walmart opposes CBRE’s motion to dismiss only as to the
claim for apportionment of fault under AS § 09.17.080.14 	Walmart argues that its
claim for apportionment of fault is not a claim based on the MSA; rather, it
maintains that AS § 09.17.080 provides a separate statutory cause of action.15 In
reply, CBRE argues that Walmart conceded the dismissal of its breach of contract
claim 	and 	therefore 	that 	claim 	should 	be 	dismissed.16 	Regarding 	the
apportionment claim, CBRE contends that AS § 09.17.080 does not create a
statutory cause of action, rather it is a “statutory procedure to allocate fault.”17
CBRE asserts that, because the only basis for CBRE’s liability to Walmart is
through the MSA, the Court should enforce the forum-selection clause and dismiss
the third-party complaint.18
SUBJECT MATTER JURISDICTION
Walmart asserts that the Court has ancillary jurisdiction over its third-party
claims.19 	The Court has an independent obligation to satisfy itself that it has
14 See Docket 69.
15 Docket 69 at 2-3.
16 Docket 70 at 2.
17 Docket 70 at 3, 12.
18 Docket 70 at 4-5
19 Docket 26 at ¶ 6. CBRE suggests that the Court lacks subject matter jurisdiction in the title to
its motion to dismiss; however, CBRE contends that the Court should enforce the forum-selection
clause in the MSA and dismiss the third-party complaint on that basis without making any other
jurisdictional arguments.
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subject matter jurisdiction.20 Pursuant to 28 U.S.C. § 1332(a), a federal court has
diversity 	jurisdiction 	over 	civil 	actions 	when 	there 	is 	complete 	diversity 	of
citizenship among the parties and the amount in controversy exceeds $75,000.
Walmart is incorporated in Delaware and has its principal place of business in
Arkansas.21 Mr. Martin, the plaintiff in the underlying case, is a resident of Alaska.22
And Mr. Martin’s complaint seeks damages over $75,000.23 	Accordingly, this
Court has diversity jurisdiction over the underlying case.
This Court may exercise supplemental jurisdiction over the third-party
complaint pursuant to 28 U.S.C. § 1367(a) because Walmart’s claims against
CBRE and Mr. Martin’s claims against Walmart derive from a common nucleus of
operative fact.24
20 See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (“[B]y whatever route a
case arrives in federal court, it is the obligation of both district court and counsel to be alert to
jurisdictional requirements.”).
21 Docket 1 at 2.
22 Docket 1 at 2.
23 Docket 16 at 8.
24 Trustees of Constr. Indus. and Laborers Health and Welfare Tr. v. Desert Valley Landscape &
Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003) (internal quotation marks omitted). 	28 U.S.C. §
1367(b) provides that “[i]n any civil action of which the district courts have original jurisdiction
founded solely on [diversity jurisdiction], the district courts shall not have supplemental jurisdiction
under subsection (a) over claims by plaintiffs against persons made parties under Rule 14 . . . of
the Federal Rules of Civil Procedure . . . when exercising supplemental jurisdiction over such
claims would be inconsistent with the jurisdictional requirements of [diversity jurisdiction].” Even
though both Walmart and CBRE are incorporated in Delaware, see Docket 49 at ¶ 3 (CBRE’s
Answer admitting Walmart’s allegation at Docket 23 ¶ 3 that CBRE is incorporated in Delaware
and has its principal place of business in Texas), this Court can exercise supplemental jurisdiction
over the third-party complaint because “‘plaintiff’ in § 1367(b) refers to the original plaintiff in the
action - not to a defendant that happens also to be a counter-plaintiff, cross-plaintiff, or third-party-
plaintiff,” State Nat’l Ins. Co. v. Yates, 391 F.3d 577, 580 (5th Cir. 2004).
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FORUM-SELECTION CLAUSES
CBRE seeks to enforce the MSA’s forum-selection clause through Rule
12(b)(3), which provides for the dismissal of an action when there is improper
venue.25 	But the Supreme Court has held that Rule 12(b)(3) is “not [a] proper
mechanism[] to enforce a forum-selection clause” when venue is otherwise proper
under 28 U.S.C. § 1391(b).26 	CBRE does not argue that the District of Alaska is
an improper venue under § 1391(b). Hence, Rule 12(b)(3) is inapplicable.
A forum-selection clause that “point[s] to a particular federal district” is
enforceable “through a motion to transfer under [28 U.S.C.] § 1404(a).”27 “Section
1404(a) is merely a codification of the doctrine of forum non conveniens for the
subset of cases in which the transferee forum is within the federal court system; in
such cases, Congress has replaced the traditional remedy of outright dismissal
with transfer.”28 	“For the remaining set of cases calling for a nonfederal forum,
§ 1404(a) has no application, but the residual doctrine of forum non conveniens
‘has continuing application in federal courts.’”29 	Here, the forum-selection clause
25 Docket 53.
26 Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 57, 61 (2013).
27 Id. at 59. 28 U.S.C. § 1404(a) provides that “[f]or the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought or to any district or division to which all parties have consented.”
28 Id. at 60 (citation omitted).
29 Id. at 60-61 (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430
(2007)).
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identifies “the federal or state courts of Arkansas,”30 not solely a particular federal
district.31 Accordingly, the Court will analyze CBRE’s motion under the doctrine of
forum non conveniens.
“[B]oth § 1404(a) and the forum non conveniens doctrine from which it
derives entail the same balancing-of-interests standard, [therefore] courts should
evaluate a forum-selection clause pointing to a nonfederal forum in the same way
that 	they 	evaluate 	a 	forum-selection 	clause 	pointing 	to 	a 	federal 	forum.” 32
Generally, when the parties are bound by a valid forum-selection clause, a district
court should enforce the clause either through transfer pursuant to § 1404(a) or by
dismissal pursuant to forum non conveniens.33 	The plaintiff carries the burden of
showing why a court should not enforce the forum-selection clause.34 	The
reviewing court “must deem all factors relating to the private interests of the parties
. . . as weighing ‘entirely in favor of the preselected forum,’” and “[w]hile a court
may consider factors relating to the public interest . . . , those factors will rarely
defeat a transfer motion” or dismissal pursuant to forum non conveniens.35 	“The
30 Docket 55-1 at 8.
31 Arkansas has two federal district courts. See An Act to Divide the District of Arkansas into two
Judicial Districts, 9 Stat. 594 (1851).
32 Atl. Marine Constr. Co., 571 U.S. at 61 (citation omitted).
33 Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1087, 1093 (9th Cir. 2018) (affirming
dismissal of complaint pursuant to forum-selection clause under doctrine of 	forum non
conveniens).
34 Id. at 1087.
35 Id. at 1087–88 (quoting Atl. Marine Constr. Co., 571 U.S. at 64).
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practical result is that a forum-selection clause ‘should control except in unusual
cases’” 	and 	“‘[o]nly 	under 	extraordinary 	circumstances 	unrelated 	to 	the
convenience of the parties’ should a motion to enforce a forum-selection clause be
denied.”36
DISCUSSION
I. 	Applicability of the Forum-Selection Clause
The 	Court 	first 	determines 	whether 	the 	MSA’s 	forum-selection 	clause
applies to Walmart’s claims.37 	Courts “apply federal contract law to interpret the
scope of a forum-selection clause even in diversity actions.” 38 The forum-selection
clause in the MSA provides that “any action, suit, or proceeding concerning [the
MSA] or any Scope of Work shall be bought only in the federal or state courts of
Arkansas.” 39 CBRE asserts that both of Walmart’s claims fall within the scope of
the forum-selection clause because they arise solely because of the MSA.40
36 Id. at 1088 (alteration in original) (first quoting Atl. Marine Constr. Co., 571 U.S. at 64; and then
quoting Atl. Marine Constr. Co., 571 U.S. at 62).
37 See id. at 1086 (“We first address the . . . argument that the . . . forum-selection clause does
not apply to the[] complaint.”); see also Atl. Marine Constr. Co., 571 U.S. at 62–63 (explaining that
analysis under 28 U.S.C. § 1404(a) or doctrine of forum non conveniens is appropriate “when the
parties’ contract contains a valid forum-selection clause”).
38 Sun, 901 F.3d at 1086 (citations omitted).
39 Docket 55-1 at 8.
40 Docket 54 at 5-6.
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Walmart counters that its claim for apportionment of fault is not a claim based on
the MSA; rather, AS § 09.17.080 provides a separate statutory cause of action.41
“‘Concerning’ means ‘relating to[.]’” 42 “[F]orum-selection clauses covering
disputes ‘relating to’ a particular agreement apply to any disputes that reference
the agreement or have some ‘logical or causal connection’ to the agreement.”43
“The dispute need not grow out of the contract or require interpretation of the
contract in order to relate to the contract.”44 Walmart’s breach of contract claim is
based on the MSA, so that claim concerns the MSA and is squarely within the
scope of the forum-selection clause. 	And Walmart’s claim for apportionment has
a logical or causal connection to the MSA, as fault will only be apportioned to CBRE
if Walmart can show that CBRE failed to remove snow and ice from Walmart’s
premises according to the terms of the MSA. Accordingly, the Court finds that the
claims in the third-party complaint relate to the MSA and that the forum-selection
clause in the MSA applies to both claims.
II. 	Enforceability of the Forum-Selection Clause
41 Docket 69 at 2-3.
42 Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759 (2018) (citation omitted).
43 Sun, 901 F.3d at 1086 (quoting John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070,
1074 (3d Cir. 1997)).
44 Id. at 1086 (citing Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914, 922 (9th Cir. 2011)).
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CBRE contends that the forum-selection clause is valid and enforceable
because Walmart has not overcome the presumption of validity accorded to a
forum-selection clause.45
[A] forum-selection clause [is] controlling unless the plaintiff [makes]
a strong showing that (1) the clause is invalid due to “fraud or
overreaching,” (2) “enforcement would contravene a strong public
policy of the forum in which suit is brought, whether declared by
statute or judicial decision,” or (3) “trial in the contractual forum will be
so gravely difficult and inconvenient that [the litigant] will for all
practical purposes be deprived of his day in court.” 46
a. Strong Public Policy
“[I]n order to prove that enforcement of [a forum-selection clause] ‘would
contravene a strong public policy of the forum in which suit is brought,’ the plaintiff
must point to a statute or judicial decision that clearly states such a strong public
policy.”47 	Walmart argues that Alaska has a strong public policy requiring all
parties to be joined in a tort action in order to apportion fault48 and AS § 09.17.080
provides the statutory mechanism for a defendant to seek an apportionment of
fault as to other liable parties.49
45 Docket 54 at 8-13.
46 Sun, 901 F.3d at 1088 (third alteration in original) (quoting M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15, 18 (1972)).
47 Id. at 1090 (quoting M/S Bremen, 407 U.S. at 15).
48 Docket 69 at 3-7 (citing Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98 (Alaska 2000)).
49 Docket 69 at 5-6.
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“Before 1986, Alaska followed the rule of joint and several liability, which
allowed a plaintiff to recover all damages from one named defendant; that
defendant could then seek reimbursement from other at-fault parties by filing an
action for contribution within one year of judgment.”50 	“[T]he ‘Tort Reform Ballot
Initiative’ . . . approved by Alaskan voters on November 8, 1988, . . . amended AS
§ 09.17.080(d) . . . and repealed AS § 09.16.010, which provided for a right to
contribution among tortfeasors.”51
Section § 09.17.080 currently provides
(a) In all actions involving fault of more than one person, including third-party
defendants and persons who have settled or otherwise been released,
the court, unless otherwise agreed by all parties, shall instruct the jury to
answer special interrogatories or, if there is no jury, shall make findings,
indicating
(1) the amount of damages each claimant would be entitled to
recover if contributory fault is disregarded; and
(2) the percentage of the total fault that is allocated to each claimant,
defendant, third-party defendant, person who has been released
from liability, or other person responsible for the damages unless
the person was identified as a potentially responsible person, the
person is not a person protected from a civil action under AS
09.10.055, and the parties had a sufficient opportunity to join that
person in the action but chose not to; in this paragraph, “sufficient
opportunity to join” means the person is
(A) within the jurisdiction of the court;
(B) not precluded from being joined by law or court rule; and
(C) reasonably locatable.
. . .
(d) The court shall enter judgment against each party liable on the basis of
several liability in accordance with that party’s percentage of fault.
50 Alaska Gen. Alarm, Inc., 1 P.3d at 100 (citing Alaska Stat. § 09.16.010-.060 (1970)).
51 Benner v. Wichman, 874 P.2d 949, 955 (Alaska 1994).
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“‘[P]arty’ for purposes of AS [§] 09.17.080(d) means parties to an action,
including third-party defendants and settling parties[.]”52 	The Alaska Supreme
Court has “interpreted this provision to require that ‘third parties must be joined for
purposes of allocating fault and liability, or not at all.’” 53 But “AS [§] 09.17.080 itself
establishes ‘no . . . procedure to allow named defendants to allocate fault to
potentially responsible parties that the plaintiff ha[s] not sued.’” 54 	In Benner v.
Wichman, the Alaska Supreme Court addressed this procedural gap, “conclud[ing]
that, absent any explicit statutory procedure, defendants must be allowed to file
third-party claims for equitable apportionment against other potentially responsible
parties.”55 Thereafter, Alaska Rule of Civil Procedure 14(c) provided the procedure
for defendants to add third-party defendants to apportion damages pursuant to AS
§ 09.17.080.56
In Pagenkopf, the Alaska Supreme Court explained that
52 Benner, 874 P.2d at 958.
53 Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 641 (Alaska 2007) (quoting Alaska Gen. Alarm,
1 P.3d at 104); see Alaska Gen. Alarm, 1 P.3d at 102 (describing that “[t]he purpose of limiting
fault allocation to joined parties – more specifically, to parties potentially liable to the plaintiff,
rather than ‘empty chair’ defendants – was to ensure that fault was accurately litigated”).
CBRE argues that it does not need to be joined as a third-party defendant in order for the Court
to apportion fault against it. Docket 70 at 8, 11 (citing Carriere v. Cominco Alaska, Inc., 823 F.
Supp. 680 (D. Alaska 1993)). 	However, in Benner, the Alaska Supreme Court clarified that
“Carriere overstates the initiative’s scope” and rejected Carriere’s definition of “party” that
“include[d] all persons whose negligence contributed to the plaintiff’s injuries.” 874 P.2d at 956.
54 Pagenkopf, 165 P.3d at 641 (quoting Alaska Gen. Alarm, 1 P.3d at 101).
55 Id. at 642 (citing Benner, 874 P.2d at 956-58).
56 Id.
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Since promulgating Rule 14(c), we have described its equitable
apportionment procedure as a cause of action that stands apart from
the 	plaintiff’s 	claim 	against 	the 	defendant 	– 	“a 	mechanism 	for
spreading 	damages” 	that 	“bears 	a 	far 	closer 	relationship 	to 	[a
traditional contribution action] than to the underlying tort action[].” But
in addition to recognizing that equitable apportionment claims are
distinct actions designed to help defendants apportion liability and
damages, we have also emphasized that these claims provide a vital
benefit to plaintiffs by “vindicating not just the right of defendants to
have damages apportioned in accordance with their fault, but the
commensurate duty of responsible third parties to pay plaintiffs.”
. . .
In other words, the defendant undertakes the burden of proving the
third-party claim; but the undertaking results in a twofold benefit: it
provides a benefit to the defendant in the form of reduced damages
reflecting the defendant’s proportionate fault and to the plaintiff in the
form of a third-party judgment ensuring full payment. 57
The origin of AS § 09.17.080 as a ballot initiative, and its subsequent
interpretation by the Alaska Supreme Court as a separate cause of action available
to defendants to apportion fault where there are potentially multiple liable parties,
indicates that Alaska public policy favors joining third-party defendants when they
might be liable for a plaintiff’s injuries.58
However, as CBRE correctly notes, when considering the enforceability of
forum-selection clauses, the strong public policy at issue is defined more narrowly:
a policy against enforcing forum-selection clauses in order to apportion fault under
57 Id. (first quoting Alaska Gen. Alarm, 1 P.3d at 105; and then quoting Alaska Gen. Alarm, 1 P.3d
at 102).
58 See Robinson v. U-Haul Co., 785 F. Supp. 1378, 1379 (D. Alaska 1992) (“[T]he people of this
state through the initiative process have expressed a strong public policy rejecting joint and
several liability.”).
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AS § 09.17.080.59 Generally, Alaska “construe[s] forum selection clauses broadly,
releasing a party from a clause only when necessary to preserve justice or a
compelling state interest.”60 	“Non-contractual claims, even those arising from
Alaska statutory law and equitable principles, may be subject to a contract’s forum
selection clause if the claims arise out of or relate to the contractual terms.”61
CBRE is correct that Walmart has not shown that Alaska has a strong public
policy against enforcing a forum-selection clause in order to apportion liability to
third-party defendants. 	In Gemini Technologies, Inc. v. Smith & Wesson Corp.,
the Ninth Circuit held that an Idaho statute established that the forum-selection
clause violated the state’s strong public policy. 62 	There, the statute provided that
“‘Every stipulation or condition in a contract, by which any party thereto is restricted
from enforcing his rights under the contract in Idaho tribunals . . . is void as it is
against the public policy of Idaho.’”63 	Here, AS § 09.17.080 does not contain a
similar provision and the language of the statute does not otherwise suggest that
a claim for third-party apportionment trumps the general enforceability of forum-
selection clauses in Alaska.
59 Docket 70 at 8, 10.
60 Resqsoft, Inc. v. Protech Sols, Inc., 488 P.3d 979, 984 (Alaska 2021) (citing Nunez v. Am.
Seafoods, 52 P.3d 720, 723 (Alaska 2002)).
61 Id. at 985 (citations omitted).
62 931 F.3d 911, 916 (9th Cir. 2019).
63 Id. (quoting Idaho Code § 29-110(1)).
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Alternatively, the forum-selection clause could be unenforceable if there is a
judicial decision establishing that enforcement of such a clause would violate
Alaska’s third-party apportionment scheme. 	In Doe 1 v. AOL, LLC, the Ninth
Circuit recognized that a state court decision established that enforcing a forum-
selection clause choosing Virginia state court would violate “California public policy
that strongly favors consumer class actions, because consumer class actions are
not available in Virginia state courts; and . . . enforcement of the forum selection
clause violates the anti-waiver provision of [a state law].”64 	Walmart has not
argued that Arkansas prohibits third-party apportionment for liability when there
are multiple potentially liable parties. 	Nor has Walmart identified any anti-waiver
provision in Alaska law that would be violated by enforcing the forum-selection
clause.65 	Accordingly, because Walmart has not identified a statute or judicial
decision establishing that Alaska has a strong public policy against enforcing a
forum-selection clause when a third-party plaintiff invokes AS § 09.17.080 to
apportion fault to a third-party defendant, the Court declines to find the forum-
selection clause unenforceable on that basis.66
64 552 F.3d 1077, 1083-84 (9th Cir. 2009).
65 To the contrary, the Alaska statute recognizes that certain potentially liable persons cannot be
joined. See Alaska Stat. § 09.17.080(a)(2)(B).
66 See Resqsoft, Inc., 488 P.3d at 985 n.16 (citing Volkswagenwerk, A. G. v. Klippan, GmbH, 611
P.2d 498, 504 (Alaska 1980), for “enforcing forum selection clause for non-contractual tort claims
despite party ‘characteriz[ing] its action as . . . arising solely from Alaska statutory law and
equitable principles rather than from contract’”).
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b. Difficulty and Inconvenience
Walmart also claims that practicality favors keeping CBRE in this action
because an “Arkansas court could not obtain jurisdiction over [Mr. Martin or the
two additional third-party Defendants], as they are Alaska residents.”67 	And
fairness 	and 	judicial 	efficiency 	support 	litigating 	Walmart’s 	third-party
apportionment claim in this Court because it is “the only venue where the fault of
all the parties can be fully litigated.”68 CBRE counters that “[t]here is nothing unfair
about holding Walmart to its contractual bargain,” particularly because CBRE’s
insurer is defending and indemnifying Walmart in the underlying action.69
Here, enforcing the forum-selection clause will not be so difficult and
inconvenient as to deprive Walmart of its day in court. In the third-party complaint,
Walmart asserts that CBRE breached the MSA and that CBRE should have fault
apportioned under Alaska law. Walmart can bring the breach of contract claim in
Arkansas, its principal place of business, and Walmart has not shown how
dismissing the third-party complaint against CBRE would deprive Walmart of an
opportunity to make its case that CBRE was at fault for Mr. Martin’s injuries.
Accordingly, the MSA’s forum-selection clause is enforceable.
67 Docket 69 at 10.
68 Docket 69 at 10.
69 Docket 70 at 18, 20; see Docket 70 at 18-20.
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Case No. 3:22-cv-00153-SLG, Martin v. Walmart Supercenter Store #2074, et al.
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III. 	Conditional Motion to Amend Third-Party Complaint
Walmart 	seeks 	leave 	to 	amend 	its 	third-party 	complaint 	if 	the 	Court
determines that the third-party complaint fails to “adequately allege apportionable
fault based on negligence” under AS §§ 09.17.080 and 09.17.900.70 	CBRE
responds in opposition to Walmart’s motion, arguing that Walmart’s “conditional”
motion 	is 	improper 	under 	the 	Federal 	Rules, 	the 	proposed 	amendment 	to
Walmart’s complaint still does not sufficiently allege negligence by CBRE, and
“[t]he [MSA] does not contain any exceptions to the enforcement of the mandatory
forum selection provision for ‘negligence’ allegations or for tort cases or for Alaska
cases or for any jurisdictions that might have other statutes, such as the Alaska
allocation of fault statute.” 71
The Court finds that, because Walmart’s claim for apportionment as to any
purported negligence by CBRE falls within the scope of the forum-selection clause
and 	the 	forum-selection 	clause 	is 	enforceable, 	the 	Court 	denies 	Walmart’s
conditional motion to amend the third-party complaint because the proposed
amendment would be futile.
CONCLUSION
Based 	on 	the 	foregoing, 	CBRE’s 	motion 	to 	dismiss 	at 	Docket 	53 	is
GRANTED, Walmart’s Conditional Motion to Amend its Third-Party Complaint at
70 Docket 79 at 2.
71 Docket 80 at 6. See Docket 80 at 2-7.
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Docket 79 is DENIED, and Walmart’s third-party complaint is dismissed WITHOUT
PREJUDICE as to CBRE.
DATED this 16th day of November, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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