Ahtna Design-Build, Inc. v. Asphalt Surfacing, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AHTNA DESIGN-BUILD, INC., an
Alaska corporation,
Plaintiff,
vs.
ASPHALT SURFACING, INC., a
California corporation, and UNITED
FIRE & CASUALTY COMPANY
Bond No. 54-197210,
Defendants.
Case No. 3:21-cv-00228-JMK
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS AND
MOTION TO TRANSFER
Pending before the Court at Docket 17 is Defendants Asphalt Surfacing, Inc.
(“ASI”), and United Fire & Casualty Company Bond No. 54-197210’s (“UFCC,” and
together with ASI, “Defendants”) Motion to Dismiss or Transfer for Lack of Personal
Jurisdiction/Invalid Venue or for Forum Non Conveniens the (the “Motion”). 	Plaintiff
Ahtna Design-Build, Inc. (“ADB”) responded in opposition at Docket 20. 	Defendants
replied at Docket 24. For the forthcoming reasons, Defendants’ Motion is DENIED.
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I. 	FACTUAL HISTORY
A. 	The Parties
ADB is a corporation that provides construction and engineering services and
is headquartered and incorporated in Alaska, with offices in California.1 ADB is a wholly
owned subsidiary of Ahtna Netiye’, LLC, which in turn is a wholly owned subsidiary of
Ahtna, Inc., an Alaska Regional Native Corporation.2 ADB is the prime contractor for a
contract 	(the 	“Prime 	Contract”) 	with 	the 	United 	States 	Army 	Mission 	Installation
Contracting Command–Fort McCoy.3 	One task order of the Prime Contract requested
maintenance of asphalt roads at Fort Hunter Liggett in California (the “Project”).4 	The
Project involved resurfacing approximately 750,000 square feet of asphalt.5
ASI is a paving contractor incorporated and headquartered in California.6
ADB and ASI entered into a Subcontract for Construction Services (the “Subcontract”), in
which ASI agreed to perform the Project work for the price of $1,108,107.29.7 The terms
of the Subcontract required ASI to secure a performance bond in the amount of the
1 Docket 1 at 3.
2 Docket 20 at 3.
3 Docket 1 at 3.
4 Id.
5 Id.
6 Id.; Docket 9 at 2.
7 Docket 1 at 3–4.
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Subcontract price.8 ASI did so by securing a bond through UFCC, an Iowa corporation.9
UFCC Bond No. 54-197210 (the “Bond”) lists ADB as the “Owner” of the Bond.10
B. 	The Subcontract and the Bond
Relevant to the present motion, the Subcontract contains a forum selection
clause, which states:
Any controversy or claim arising out of or relating to this
Agreement, or the breach of the same, shall be settled through
consultation and negotiation in good faith and a spirit of mutual
cooperation. 	However, if those attempts fail after thirty (30)
days, or longer, if the parties mutually agree in writing, the
parties agree that any misunderstandings or disputes arising
from this Agreement shall be resolved by a court of competent
jurisdiction located in Anchorage Alaska, without regard to its
choice of law and venue rules. 	The parties hereby agree to
venue and personal jurisdiction in Alaska.11
The Bond contains its own forum selection clause, which reads:
Any proceeding, legal or equitable, under this Bond may be
instituted in any court of competent jurisdiction in the location
in which the work or part of the work is located and shall be
instituted within two years after a declaration of Contractor
Default 	or 	within 	two 	years 	after 	the 	Contractor 	ceased
working or within two years after the Surety refuses or fails to
perform its obligations under this Bond, whichever occurs first.
If the provisions of this Paragraph are void or prohibited by
law, the minimum period of limitation available to sureties as
a defense in the jurisdiction of the suit shall be applicable.12
8 Id. at 4.
9 Docket 1 at 2; Docket 9 at 2.
10 Docket 17-5 at 1; Docket 20-5 at 1. The Court notes that the Bond is sometimes referred
to as Bond No. 54197228. See Docket 9 at 2; Docket 17-14 at 2; Docket 17-5 at 1. The parties do
not address this discrepancy in their briefing.
11 Docket 17-4 at 6; Docket 20-3 at 6.
12 Docket 17-5 at 3; Docket 20-5 at 3.
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The Bond also has a provision that incorporates the entirety of the Subcontract by
reference, stating, “[t]he Contractor [(ASI)] and Surety [(UFCC)], jointly and severally,
bind themselves . . . to the Owner [(ADB)] for the performance of the Construction
Contract [(the Subcontract)], which is incorporated herein by reference.”13
C. 	The Dispute
ADB alleges that, both during the Project work and afterwards, it noticed
defects in ASI’s performance under the Subcontract, including cosmetic problems,
unexpected damage to the newly paved road surface caused by vehicle traffic, and defects
in the application of thermoplastic lines and signage.14 In February 2021, ADB and ASI
discussed ASI’s alleged defective performance, but the parties could not come to an
agreement regarding the scope of the corrective work needed on the Project.15 On April 19,
2021, ADB provided ASI with a written notice (the “Notice”) that it had defaulted on its
obligations under the Subcontract by failing to perform the work according to the
Subcontract specifications and “with the skill and care reasonably expected for that type of
work.”16 The Notice identified eight defects in ASI’s performance that needed remediation
and gave ASI fourteen days to submit a plan to perform all of the remediation work.17
Following the Notice, ADB and ASI again failed to agree on a remediation plan.18 	On
May 12, 2021, ADB contacted UFCC and submitted a formal claim on the Bond, indicating
13 Docket 17-5 at 2; Docket 20-5 at 2.
14 Docket 1 at 4.
15 Id. at 4–5.
16 Id. at 5.
17 Id. at 5–6.
18 Id. at 6–7.
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that it intended to declare ASI in default.19 	UFCC agreed to evaluate the claim and
proceeded to investigate and retain experts for third-party analyses of ASI’s work.20
ADB alleges that the United States Government informed ADB that it would
not process payment for the Project due to the defects that ADB identified in its Notice.21
After several other unsuccessful attempts to reach a resolution regarding an appropriate
remediation plan, ADB gave ASI notice that its performance under the Subcontract was
terminated due to ASI’s default of its performance obligations.22 ADB informed UFCC of
ASI’s termination and demanded that UFCC complete the Project work.23 UFCC refused,
arguing that it had no remaining obligations to ADB.24 ADB then informed UFCC it was
in default of its Bond obligations.25 	ASI and UFCC deny the allegations of defective
work.26 	They admit there were cosmetic issues that needed resolution, but argue these
issues were adequately addressed by ASI’s proposed remediation plan, which was
wrongfully rejected by ADB.27
II. 	PROCEDURAL HISTORY
ADB brought this lawsuit against ASI and UFCC on October 14, 2021,
asserting claims for breach of contract, breach of the implied warranty of good faith and
fair dealing, a claim against the Bond, performance bond bad faith, and a violation of the
19 Id. at 7.
20 Id.
21 Id.
22 Id. at 8.
23 Id.
24 Id.
25 Id. at 9.
26 Docket 9 at 5; Docket 17 at 4.
27 Docket 9 at 5; Docket 17 at 4–5.
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Alaska Unfair Trade Practices and Consumer Protection Act.28 	Defendants filed an
Answer on November 22, 2021, asserting counterclaims for breach of an express and
implied contract.29
On November 3, 2021, ASI filed a separate action against ADB and Great
American Insurance Group (“Great American”) in the Northern District of California,
San Jose (the “California Action”).30 The California Action involves claims for breach of
the Subcontract against ADB and for recovery on a Miller Act bond against ADB and Great
American, ABD’s surety under the performance bond ADB secured pursuant to the terms
of the Prime Contract.31 On November 23, 2021, ADB filed a Motion to Dismiss, Transfer
or Stay in the California Action. The Northern District of California issued a decision on
ADB’s motion on January 26, 2022, finding that the forum selection clause in the
Subcontract overrode the Miller Act’s venue provision and that it was appropriate to stay
the California Action under the first-to-file rule.32
On February 22, 2022, Defendants filed the present motion, requesting that
the Court either dismiss this action or use its discretion to transfer this case to the Northern
District of California.33 On July 8, 2022, after reviewing the briefing on the present motion,
this Court became concerned that it lacked subject-matter jurisdiction over this action and
sua sponte issued an Order to Show Cause that complete diversity exists here.34 	In
28 Docket 1 at 9–12.
29 See generally Docket 9.
30 See generally Docket 17-9; Docket 20-1.
31 Docket 17-9 at 2–6; Docket 20-1 at 2–6.
32 Docket 17-10 at 3–5; Docket 20-6 at 3–5.
33 Docket 17 at 1–2.
34 Docket 25 at 7.
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response, ADB provided evidence supporting its allegations of citizenship for diversity
purposes.35 	On August 1, 2022, the Court issued an Order finding that ADB’s principal
place of business is in Anchorage, Alaska, and, consequently, the Court has subject-matter
jurisdiction over this action.36 	As issues regarding subject-matter jurisdiction were
resolved in the Court’s prior Order, the Court will not address subject-matter jurisdiction
herein.
III. 	DISCUSSION
Defendants 	now 	move 	to 	(1) 	dismiss 	this 	case 	for 	lack 	of 	personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2); (2) dismiss this case for
improper venue under Federal Rule of Civil Procedure 12(b)(3); or (3) transfer the case to
California “[f]or the convenience of parties and witnesses” and “in the interest of justice”
pursuant to 28 U.S.C. § 1404(a). 	The Court addresses each of these requests below,
beginning with the threshold issues of the applicability and enforceability of the forum
selection clause contained in the Subcontract. 	The Court then addresses Defendants’
Motion to Transfer and, finally, Defendants’ Motion to Dismiss.
A. 	The Forum Selection Clause
1. 	Applicability of the forum selection clause
The Court first must assess whether the forum selection clause in the
Subcontract applies to the claims and parties involved in this litigation. 	Neither party
disputes 	that 	this 	suit 	is 	a 	“misunderstanding[] 	or 	dispute[] 	arising 	from 	[the
35 See generally Docket 26; Docket 27; Docket 28.
36 Docket 29 at 6.
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Subcontract].”37 As such, this suit comes within the purview of the forum selection clause
in the Subcontract.
The next question is which parties are bound by the Subcontract’s forum
selection clause. 	Defendants originally argued that the Court must analyze the forum
selection clauses in the Subcontract and the Bond individually because the Subcontract
does not bind UFCC, which is not a party to that agreement.38 Defendants further argued
that, even if UFCC is bound by the Subcontract’s forum selection clause, the forum
selection clause in the Bond “conflicts” with the forum selection clause in the Subcontract
and “[c]ourts have refused to enforce a forum-selection clause if there are conflicting
forum-selection clauses at issue.”39 ADB responded by asserting that the Bond specifically
incorporated the Subcontract by reference and therefore UFCC, as a party to the Bond, is
bound by the Subcontract’s forum selection clause.40 In reply, Defendants conceded that
UFCC is bound by the forum selection clause in the Subcontract by virtue of the
incorporation by reference provision in the Bond.41
The Court agrees that UFCC is bound by the Subcontract’s terms. The Court
also discerns no conflict between the Bond’s forum selection clause and the Subcontract’s
forum selection clause.42 	As discussed further below, the Subcontract uses mandatory
37 Docket 17-4 at 9; Docket 20-3 at 6.
38 Docket 17 at 16–17.
39 Id. at 27–28.
40 Docket 20 at 4, 14–16.
41 Docket 24 at 13.
42 See Swank Enterprises, Inc. v. NGM Ins. Co., No. CV 19-200-M-DLC, 2020 WL
1139607, at *2 (D. Mont. Mar. 9, 2020) (“[T]here is no conflict between the bond and the
underlying contract, and so the forum-selection clause of the underlying contract applies to the
beneficiary’s suit against the surety.’).
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language, i.e., “the parties agree that any misunderstandings or disputes arising from this
Agreement shall be resolved by a court of competent jurisdiction located in Anchorage
Alaska,”43 whereas the Bond uses permissive language, i.e., “[a]ny proceeding . . . under
this Bond may be instituted in any court of competent jurisdiction in the location in which
the work or part of the work is located . . . .”44 The clauses therefore are reconcilable; the
Subcontract’s forum selection clause requires the parties to litigate in this Court, while the
Bond’s forum selection clause merely permits litigation in California.45 	The Court finds
that the Subcontract’s mandatory forum selection clause is controlling and binds both ASI
and UFCC.46
2. 	Enforceability of the forum selection clause
The Court next must determine whether the forum selection clause in the
Subcontract is valid and enforceable. 	The enforcement and interpretation of forum
selection clauses is governed by federal law in diversity cases.47 Under federal law, forum
selection 	clauses 	are 	“presumptively 	valid” and 	“should be 	honored ‘absent 	some
43 Docket 17-4 at 6; Docket 20-3 at 6 (emphasis added).
44 Docket 17-5 at 3 (emphasis added); Docket 20-5 at 3 (emphasis added).
45 Other courts that have addressed the issue of “a party who is bound by two forum-
selection clauses, one of which is a permissive clause that allows litigation to be brought in Forum
A or Forum B, and the other of which is a mandatory clause that requires litigation to be brought
in Forum A” have come to the same conclusion. Granite Re, Inc. v. N. Lines Contracting, Inc.,
478 F. Supp. 3d 772, 778–80 (D. Minn. 2020) (collecting cases). 	In fact, the Granite Re court
interpreted forum selection clauses with language very similar to those at issue in this litigation.
See id. at 777. 	While not binding, the Court finds Granite Re, and the cases cited therein,
persuasive.
46 The Court addresses UFCC and ASI together as “Defendants” for the remainder of this
Order. 47 Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988).
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compelling and countervailing reason.’”48 	The Supreme Court has articulated three
grounds for invalidating a forum selection clause: 	(1) the clause was included in the
contract 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 by 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 or her] day in court”
(together, the “Bremen factors” or “Bremen test”).49 The party seeking to avoid a forum
selection clause “bears a ‘heavy burden’ of establishing the existence of one of the
aforementioned grounds for rejecting its enforcement.”50 Here, Defendants do not clearly
argue that the forum selection clause was included in the contract due to fraud or
overreaching.51 Thus, only the final two Bremen factors are at issue.
(a) 	Strong public policy of the forum state
The Ninth Circuit has held that “satisfaction of Bremen’s public policy factor
continues to suffice to render [a] forum-selection clause unenforceable.”52 Here, the parties
48 Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004) (quoting M/S
Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 12 (1972)).
49 Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1088 (9th Cir. 2018)
(quoting Bremen, 407 U.S. at 15).
50 Jones v. GNC Franchising, Inc., 211 F.3d 495, 497 (9th Cir. 2000) (quoting Fireman’s
Fund Ins. Co. v. M.V. DSR Atlantic, 131 F.3d 1336, 1338 (9th Cir. 1997)).
51 Overreaching 	includes 	conduct 	involving 	“undue 	influence” 	or 	“overweening
bargaining power.” 	Tanious v. Landstar Sys., Inc., No. CV 19-1067 DSF (SHKx), 2020 WL
3166610, at *4 (C.D. Cal. June 15, 2020). While Defendants use the term “overreaching” in their
Motion, they do not present any evidence that the forum selection clause was included in the
Subcontract because of undue influence, overweening bargaining power, or similar conduct. See
Docket 17 at 27. The Court therefore does not address the first Bremen factor.
52 Gemini Techs., Inc. v. Smith & Wesson Corp., 931 F.3d 911, 916 (9th Cir. 2019).
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disagree as to which state’s public policy the Court should consider for this factor.53
Bremen instructs the Court to consider the “strong public policy of the forum in which the
suit is brought,” which in this case is Alaska.54 However, Defendants argue that the Court
should take into account the public policy of California, their preferred forum.55 In support
of this proposition, Defendants cite to Salesforce.com v. GEA,56 decided in the Northern
District of California and not binding on this Court, which considered the public policy of
a non-forum state.57 Salesforce.com v. GEA, like this case, involved the unusual situation
where a party seeks to avoid a forum selection clause through dismissal or transfer (an
“inbound forum selection clause”), as opposed to the typical situation where a party seeks
to enforce the forum selection clause by transferring the case to the contractually selected
forum (an “outbound forum selection clause”).58 	Finding that consideration of the non-
forum state’s public policy was appropriate, the Northern District of California reasoned
that the Bremen test was articulated in contemplation of the typical outbound forum
selection clause situation and “it would seem odd to focus on the policies of the state
already designated by the contract, as it is unlikely that the state has a policy against the
exercise of its own jurisdiction.”59 While other courts within this district have considered
only the public policy of the forum state when analyzing an inbound forum selection
53 See Docket 17 at 22–27; see Docket 20 at 23–25.
54 M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972) (emphasis added).
55 See Docket 17 at 22–23.
56 Salesforce.com, Inc. v. GEA, Inc., No. 19-cv-01710-JST, 2019 WL 3804704, at *5
(N.D. Cal. Aug. 13, 2019).
57 Docket 17 at 23, 25.
58 Salesforce.com, 2019 WL 3804704, at *5.
59 Id. at *9.
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clause,60 this Court is persuaded by the reasoning of Salesforce.com v. GEA. 	Therefore,
the Court finds it appropriate to consider the public policy of both Alaska and California.61
The Court concludes that the forum selection clause in the Subcontract offends neither.
First, Defendants argue that litigating this suit in Alaska offends the public
policy of California because Alaska law provides for different remedies than those
available under California law.62 	ADB brings a claim under the Alaska Unfair Trade
Practices and Consumer Protection Act, which allows for recovery of attorney’s fees and
costs, treble damages, and punitive damages.63 Defendants argue that ADB would not be
able to bring an equivalent claim under California’s consumer protection statute, the
California Consumers Legal Remedies Act, which seeks to protect consumers against
unlawful practices in non-commercial contexts and which limits the availability of treble
damages.64 	Defendants 	also 	argue 	that 	Alaska 	law 	allows 	parties 	to 	recover
extracontractual damages for performance bond bad faith, whereas the Supreme Court of
California has held that a party suing on a performance bond cannot recover tort damages.65
In Cates Construction Inc. 	v. Talbot Partners,66 the Supreme Court of California
60 See HDOS Franchise Brands, LLC v. El Paso Hot Dog, LLC, No. 3:21-cv-00201-AJB-
BLM, 2021 WL 5629923, at *2 (S.D. Cal. June 29, 2021); Port of Subs, Inc. v. Tahoe Invs., Inc.,
No. 3:16-CV-00411-LRH-VPC, 2016 WL 6561560, at *3 (D. Nev. Nov. 3, 2016).
61 See Lee v. Fisher, 34 F.4th 777, 782 (9th Cir. 2022) (noting that the non-forum state’s
law is not “irrelevant” in determining whether a forum selection clause is valid).
62 See Docket 17 at 23–27.
63 Id. at 25.
64 Id. at 26–27.
65 See Docket 17 at 22–23.
66 980 P.2d 407, 415–27 (1999) (considering the inclusion of suretyship in the California
Insurance Code, policy considerations, and authorities from other states in ruling that performance
bond obligees should not be able to recover tort damages in the context of a construction
performance bond).
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considered public policy reasons as one of a number of justifications for ruling that
performance bond obligees may not recover in tort. Although Defendants have established
that available remedies differ between Alaska and California, they have failed to show that
allowing ADB to pursue remedies that are unavailable under California law offends a
strong public policy of California.67 In the absence of a clearly stated public policy, “the
fact that certain types of remedies are unavailable in the foreign forum does not [render a
forum selection clause unenforceable] if there exists a basically fair court system in that
forum that would allow the plaintiff to seek some relief.”68 	Thus, only when “the
contractually selected forum affords [a party] no remedies whatsoever” will a forum
selection clause be invalidated due to a difference of remedies between fora.69 Defendants
do not argue they will be deprived of relief in Alaska. 	Therefore, simply describing the
differences in available relief between California and Alaska does not suffice to carry
Defendants’ heavy burden of proving that the forum selection clause in the Subcontract
offends a strong public policy of California.
Second, Defendants argue that “[i]t is the public policy of Alaska not to
enforce contract clauses, including forum selection clauses that are unconscionable as
against public policy.”70 	Defendants cite to Nunez v. American Seafoods,71 in which the
67 Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1090 (9th Cir. 2018)
(The party seeking nonenforcement of a forum selection clause “must point to a statute or judicial
decision that clearly states . . . a strong public policy.”).
68 Id. at 1092 (quoting Weber v. PACT XPP Techs., AG, 811 F.3d 758, 774 (5th Cir.
2016)). 69 See id. at 1091–92.
70 Docket 24 at 6.
71 52 P.3d 720, 722–24 (Alaska 2002).
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Supreme Court of Alaska found a forum selection clause void because it violated federal
law by limiting the plaintiff’s right to bring suit in any eligible forum under the Jones Act.
Defendants also cite to Pavone v. Pavone,72 in which the Supreme Court of Alaska refused
to 	enforce 	an 	oral 	agreement 	because 	it 	violated 	an 	Alaska 	statute, 	Alaska 	Stat.
§ 16.43.150(g)(2). Based on these two cases, Defendants assert that it is Alaska’s public
policy not to enforce forum selection clauses that “violate specific statutes” and, because
the forum selection clause in the Subcontract violates California Civil Code of Procedure
§ 410.42,73 it is unenforceable.74 	But neither Pavone, in which the court applied Alaska
law and found that a contract violated an Alaska statute, nor Nunez, in which the court
applied federal admiralty law and found that a forum selection clause violated federal law,
stands for this proposition. 	Defendants have not carried their burden in showing that
Alaska has a strong public policy against enforcing contract clauses that violate another
state’s law.
Finally, the Court notes that Defendants do not argue that the Subcontract’s
forum selection clause should not be enforced because it violates California’s public policy
embodied in California Civil Code of Procedure § 410.42; instead, they insist that a
purported violation of § 410.42 violates Alaska’s public policy. As such, Defendants have
72 860 P.2d 1228, 1231 (Alaska 1993).
73 California Civil Code of Procedure § 410.42 reads in relevant part: 	“The following
provisions of a contract between the contractor and a subcontractor with principal offices in this
state, for the construction of a public or private work of improvement in this state, shall be void
and unenforceable: (1) A provision which purports to require any dispute between the parties to
be litigated, arbitrated, or otherwise determined outside this state.”
74 Docket 24 at 7.
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not carried their burden of demonstrating that § 410.42 applies here75 and represents a
strong public policy of California. The two federal courts that have considered § 410.42
in the context of forum selection clauses have held that § 410.42 does not preclude
enforcement of the forum selection clause at issue.76 	Further, many states have similar
statutes voiding forum selection clauses requiring construction disputes to be adjudicated
outside the state where the project is located.77 In Gemini Technologies, Inc. v. Smith &
Wesson Corp.,78 the Ninth Circuit emphasized that only four states had statutes similar to
the one at issue and thus “successful public policy challenges to forum-selection clauses
based on statutes similar to Idaho’s are bound to be far from routine.”79 Invalidating the
forum selection clause here would run contrary to this principle.
75 Defendants have not established that this statute is applicable to this case, where the
construction work was performed on a United States Army base. In a part of the opinion that was
not appealed, the lower court in Atlantic Marine Construction Co. v. United States District Court
for the Western District of Texas, 571 U.S. 49 (2013), analyzed a Texas statute similar to Cal. Civ.
Proc. Code § 410.42. See United States ex rel. J-Crew Mgmt., Inc. v. Atl. Marine Const. Co., No.
A-12-CV-228-LY, 2012 WL 8499879, at *3 (W.D. Tex. Aug. 6, 2012). The Court found that the
Texas statute did not apply to the subcontract at issue because the construction project was
contained entirely within a “federal enclave,” i.e., Fort Hood in Killeen, Texas, and therefore the
project did not come within the purview of the statute for construction projects “located in this
state.” Id. It therefore is unclear to this Court whether the construction project here, which took
place at Fort Hunter Liggett would be considered construction that occurred “in this state,
[California]” under Cal. Civ. Proc. Code § 410.42.
76 See Audeamus Inc. v. Baxter Constr. Co., Inc., No. 1:20-cv-01333 JLT SKO, 2022 WL
605407, at *5 (E.D. Cal. Mar. 1, 2022); Scott Co. of California v. U.S. Eng’g Co., No. C 94-1963
FMS, 1994 WL 519493, at *5 (N.D. Cal. Sept. 19, 1994).
77 Presidential Hosp., LLC v. Wyndham Hotel Grp., LLC, 333 F. Supp. 3d 1179, 1230
(D.N.M. 2018) (collecting statutes).
78 931 F.3d 911 (9th Cir. 2019).
79 Id. at 916.
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(b) 	Depriving defendants of their day in court
The third Bremen factor asks whether “trial in the contractual forum will be
so gravely difficult and inconvenient that [the litigant] will for all practical purposes be
deprived of his [or her] day in court.”80 	The Ninth Circuit has noted that this factor “is
difficult to satisfy.”81 	Defendants argue that litigating in Alaska would be inconvenient
and expensive because witnesses will have to fly to Alaska from California and will require
lodging.82 Defendants assert that “forcing a trial in Alaska means requiring ASI/UFCC to
choose between trial by deposition, at a lower cost, and trial with live witnesses, which
would involve air fare, hotels, meals and transportation.”83
However, “the Supreme Court’s decision in Atlantic Marine Construction
Co. v. United States District Court for the Western District of Texas, 571 U.S. 49, 64
(2013), 	‘appears 	to 	foreclose 	this 	court’s 	consideration 	of 	such 	convenience-based
arguments.’”84 The inconveniences Defendants cite were entirely foreseeable at the time
of the Subcontract’s formation. 	As in Atlantic Marine, when Defendants entered into a
contract agreeing to litigate all disputes in Alaska, they “knew that a distant forum might
hinder [their] ability to call certain witnesses and might impose other burdens on [their]
80 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972).
81 Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1091 (9th Cir. 2018).
82 See Docket 17 at 20–22.
83 Id.
84 Radiant Glob. Logistics, Inc. v. Drummond, No. C18-1063JLR, 2018 WL 5276581, at
*6 (W.D. Wash. Oct. 24, 2018) (quoting Baga v. ePlus Tech., Inc., No. C17-693 TSZ, 2017 WL
2774088, at *3 (W.D. Wash. June 27, 2017)).
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litigation efforts,” they “nevertheless promised to resolve disputes in [Alaska] and the
District Court should not give any weight to [their] current claims of inconvenience.”85
Even if the Court were to consider Defendants’ convenience arguments, the
Court would not find that the inconvenience of litigating in Alaska amounted to a
deprivation of Defendants’ day in court. While Defendants have submitted evidence that
litigating in Alaska would be more expensive than in California, they have not submitted
evidence suggesting that they would be unable to pay these additional expenses, or that
their witnesses would be unable to travel. Defendants also do not argue that they would be
unable to obtain any relief in an Alaskan court. “[I]t is well-settled that mere inconvenience
premised on the additional expense of litigating in the designated forum is insufficient to
rise to the level of depriving one of one’s day in court.”86 	Accordingly, the Court finds
that enforcement of the Subcontract’s forum selection clause does not render litigation in
Alaska “impossible as a practical matter.”87
In sum, applying the Bremen factors, the Court finds that the forum selection
clause in the Subcontract is valid and enforceable.
B. 	Motion to Transfer
Pursuant to 28 U.S.C. § 1404(a), “[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 . . . .” Ordinarily, a motion to transfer
85 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 67 (2013).
86 Am. Guard Servs., Inc. v. Mgmt. Info. Tech. Corp., No. CV 11-3525 RSWL (MRWx),
2011 WL 2940407, at *2 (C.D. Cal. July 21, 2011) (collecting cases).
87 Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1092 n.9 (9th Cir. 2018).
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venue under § 1404(a) requires the court to consider various private and public interest
factors.88 However, in Atlantic Marine, the Supreme Court held that if a valid, enforceable
forum selection clause is present, the court “should not consider arguments about the
parties’ private interests.”89 	This is because “[w]hen parties agree to a forum-selection
clause, they waive the right to challenge the preselected forum as inconvenient or less
convenient for themselves or their witnesses, or for their pursuit of the litigation.”90 The
practical result of this adjusted analysis is that “forum-selection clauses should control
except in unusual cases” because the public-interest factors will “rarely” outweigh
enforcement of a forum selection clause.91
The Atlantic Marine Court did not distinguish between mandatory and
permissive forum selection clauses. However, courts within the Ninth Circuit historically
have made this distinction and “have generally held that Atlantic Marine applies only to
mandatory forum selection clauses and therefore motions to transfer on the basis of a
permissive selection clause should continue to be evaluated by weighing the relevant
private and public interest factors.”92 	Therefore, in evaluating Defendants’ Motion to
Transfer, the Court first interprets the Subcontract’s forum selection clause to determine
88 Atlantic Marine, 571 U.S. at 62.
89 Id. at 64.
90 Id.
91 Id.
92 Mitchell v. 1Force Gov’t Sols., LLC, No. CV 18-7612 PSG (Skx), 2018 WL 6977476,
at *4 (C.D. Cal. Nov. 29, 2018) (collecting cases); see also Saccani Distrib. Co. v. Clean Cause,
Inc., No. 2:20-cv-01498-TLN-DB, 2021 WL 3883879, at *2–3 (E.D. Cal. Aug. 31, 2021); Cooley
v. Target Corp., No. SA CV 20-00876-DOC-JDE, 2020 WL 7230985, at *2–3 (C.D. Cal. Oct. 12,
2020).
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whether it is mandatory or permissive and then weighs the appropriate factors under
Atlantic Marine.
1. 	Mandatory or permissive
Federal courts interpreting forum selection clauses look “for guidance ‘to
general principles for interpreting contracts.’”93 Contract terms are given their “ordinary
meaning, and when the terms of the contract are clear, the intent of the parties must be
ascertained from the contract itself.”94 	A forum selection clause is permissive when “it
merely shows that the parties have consented to jurisdiction in a particular locale, but does
not preclude litigation elsewhere.”95 	By contrast, a forum selection clause is mandatory
when it uses language “indicating the parties’ intent to make jurisdiction exclusive.”96
As discussed above, the Court finds that the forum selection clause in the
Subcontract is mandatory. The language “any misunderstandings or disputes arising from
this Agreement shall be resolved by a court of competent jurisdiction located in Anchorage
Alaska, without regard to its choice of law and venue rules” evinces an intent to make the
parties’ forum selection mandatory and exclusive.97 Furthermore, Courts within this circuit
have construed similar language as mandatory.98 Defendants argue that the Subcontract’s
93 Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (quoting Klamath Water Users
Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999)).
94 Id.
95 Summit Foods, Inc. v. Viking Packaging Techs., Inc., No. 3:18-cv-1470-SI, 2018 WL
4690364, at *2 (D. Or. Sept. 28, 2018) (citing Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762,
764 (9th Cir. 1989)).
96 See Docksider, 875 F.2d at 764.
97 See Docket 17-4 at 6 (emphasis added); Docket 20-3 at 6 (emphasis added).
98 See Rice Corp. v. Grain Bd. of Iraq, 430 F. App’x 604, 605 (9th Cir. 2011)
(“Paragraph 18 of the parties’ contract is necessarily mandatory and exclusive: 	A dispute that
‘shall be settled . . . final[ly] and conclusive[ly]’ by an Iraqi court cannot, as a matter of logic, be
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forum selection clause is permissive because “it states a court of competent jurisdiction
shall resolve disputes [and] . . . does not state that exclusive jurisdiction is vested in a
specific court to the exclusion of others.”99 The Court disagrees. The clause places venue
in “a court of competent jurisdiction located in Anchorage Alaska,” not just any court.100
“Competent jurisdiction” clearly refers to subject-matter jurisdiction, as the next sentence
distinguishes personal jurisdiction, providing “[t]he parties hereby agree to venue and
personal jurisdiction in Alaska.”101 	Therefore, the forum selection clause can most
naturally be interpreted as conferring exclusive jurisdiction on the court in Anchorage,
Alaska, that has subject-matter jurisdiction over the action.102 	This case falls within this
resolved by any other); TK Prods., LLC v. Buckley, No. 3:16-cv-803-SI, 2016 WL 7013470, at *3
(D. Or. Nov. 29, 2016) (Finding the following language mandatory: “[a]ll disputes hereunder shall
be resolved in the applicable state or federal courts of Nevada sitting in the county of licensee’s
county [sic].”) (emphasis omitted); S. Cnty. Pro. Park, Ltd v. Orchard Supply Co. LLC, No. 5:14-
cv-02348-PSG, 2014 WL 3706825, at *2 (N.D. Cal. July 21, 2014) (“Under Ninth Circuit
authority, the phrase ‘shall be brought’ in a forum selection clause makes the clause mandatory.”);
Starbuzz Tobacco, Inc. v. Layalina Tobacco Mfg. F.Z.C., No. SACV 13-00144-JVS (MLGx), 2013
WL 12131259, at *4 (C.D. Cal. July 31, 2013) (“The second half of the sentence, where the parties
agree that any dispute ‘shall be resolved by Dubai Commercial Court,’ conveys a clear intent to
confer exclusive jurisdiction upon the Dubai Commercial Court . . . . This is mandatory
language.”).
99 Docket 17 at 16 (emphasis in original).
100 Docket 17-4 at 6 (emphasis added); Docket 20-3 at 6 (emphasis added).
101 Docket 17-4 at 6; Docket 20-3 at 6; see also Lightfoot v. Cendant Mortg. Corp., 580
U.S. 82 (2017) (interpreting the phrase “a court of competent jurisdiction” as “a reference to a
court with an existing source of subject-matter jurisdiction”).
102 See Simonoff v. Expedia, Inc., 643 F.3d 1202, 1207 (9th Cir. 2011) (“[W]e hold that a
forum selection clause that vests ‘exclusive jurisdiction and venue’ in the courts ‘in’ a county
provides venue in the state and federal courts located in that county.”); Holck v. Bank of New York
Mellon Corp., 769 F. Supp. 2d 1240, 1254 (D. Haw. 2011) (construing “the dispute will be
adjudicated in a court of competent civil jurisdiction sitting in the State whose law governs the
terms of the agreement” as mandatory) (emphasis omitted); Turner v. Thorworks Indus., Inc.,
No. CIVS05-02653WBS KJM, 2006 WL 829142, at *4 (E.D. Cal. Mar. 28, 2006) (construing
forum selection clause indicating that litigation “shall be brought in the appropriate state or federal
court with jurisdiction over Erie County, Ohio” as mandatory).
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Court’s diversity jurisdiction; therefore, the forum selection clause selects this Court as the
mandatory forum for disputes arising out of the Subcontract. 	Finally, contrary to
Defendants’ suggestion, the Ninth Circuit has made clear that a forum selection clause does
not need to contain “express mandatory term[s] such as ‘exclusively’” to be mandatory.103
Guided by general principles of contract interpretation, the Court finds that the forum
selection clause in the Subcontract is mandatory.
2. 	Modified 1404(a) analysis
Having concluded that the forum selection clause in the Subcontract is
mandatory, the Court next determines whether transfer is appropriate under 28 U.S.C.
§ 1404(a) using the modified analysis articulated in Atlantic Marine.104 	Under Atlantic
Marine, the party seeking to avoid a forum selection clause bears the burden of showing
“that public-interest factors overwhelmingly” favor transfer away from the contractually
selected forum.105 Such factors include, “the administrative difficulties flowing from court
congestion; the local interest in having localized controversies decided at home; and the
interest in having the trial of a diversity case in a forum that is at home with the law.”106
Here, the public-interest factors weigh in favor of this case remaining in the District of
Alaska.
103 See Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 763 (9th Cir. 1989).
104 ADB does not dispute that this case could have been brought in California. As such,
§ 1404(a) is applicable here.
105 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 67 (2013).
106 Id. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n.6 (1981)).
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First, Defendants present no arguments regarding administrative difficulties
flowing from court congestion. Therefore, this factor is neutral.107 Next, there is a local
interest in having this case decided in Alaska because ADB is an Alaskan corporation with
its principal place of business in Alaska.108 	Further, since ADB is an Alaska-based
company, its alleged injury occurred in Alaska.109 The majority of Defendants’ arguments
on this point contend that Alaska has no localized interest because ADB’s “only connection
to Alaska is that it is its state of incorporation” and ADB has “no presence in Alaska.”110
However, this argument was overcome when, in response to this Court’s Order to Show
Cause, ADB presented competent evidence that its principal place of business or “nerve
center” is in Anchorage, Alaska.111 California undoubtedly also has a localized interest in
this case, as the work contemplated by the Subcontract was to be performed in California
and one of the Defendants, ASI, is a California citizen.112 	However, this factor “ask[s]
only if there is an identifiable local interest in the controversy, not whether another forum
107 See Jezign Licensing, LLC v. Bebe Stores, Inc., No. 20-CV-1064 JLS (AGS), 2021 WL
3034028, at *6 (S.D. Cal. July 19, 2021) (collecting cases and finding this factor neutral because
plaintiff made no showing regarding court congestion).
108 See Quality Off. Furnishing, Inc. v. Allsteel, Inc., No. SA CV 17-0724-DOC (KES),
2017 WL 11662670, at *7 (C.D. Cal. June 23, 2017) (finding Iowa had a local interest in a lawsuit
when Defendant’s principal place of business was in Iowa); LT Leasing, Inc. v. NHA Hamburger
Assekuranz-Agentur GmbH, No. 2:14-cv-00716-MCE-EFB, 2015 WL 1622846, at *5 (E.D. Cal.
Apr. 10, 2015) (finding “there is a local interest in the lawsuit because Plaintiff is a California
corporation with its principal place of business in the Eastern District of California.”).
109 See R & B Wire Prod., Inc. v. Everstrong Com. Prod., LLC, No. SACV 18-01751 AG
(DFMx), 2019 WL 1069536, at *4 (C.D. Cal. Jan. 3, 2019).
110 Docket 24 at 14.
111 See generally Docket 26; Docket 27; Docket 28.
112 See Docket 1 at 3–4; Docket 9 at 2.
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also has an interest.”113 	Accordingly, that another forum has an interest in deciding the
case, “alone does not satisfy [Defendants’] heavy burden.”114 Finally, ADB brings claims
under common law and Alaska state law and Defendants’ counterclaims are common law
claims.115 Defendants have not presented any argument explaining how or why California
law should apply here. 	Even if California law were to apply, “federal judges routinely
apply the law of a State other than the State in which they sit.”116 	This factor therefore
does not favor transfer.
In 	conclusion, 	Defendants 	have 	not 	carried 	their 	heavy 	burden 	of
demonstrating that the public-interest factors overwhelmingly favor non-enforcement of
the Subcontract’s forum selection clause. The Court finds that this case does not present
the “extraordinary circumstances” necessary to depart from the parties’ contractually
selected forum.117 	Accordingly, Defendants’ Motion to Transfer under 28 U.S.C.
§ 1404(a) is DENIED.
C. 	Motion to Dismiss for Lack of Personal Jurisdiction or Improper Venue
Defendants move to dismiss this case for lack of personal jurisdiction or
improper venue.118 ADB argues that the Court should not reach the merits of Defendants’
113 Bos. Telecomms Grp., Inc. v. Wood, 588 F.3d 1201, 1212 (9th Cir. 2009) (quoting
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1182 (9th Cir. 2006)).
114 Sandler v. iStockphoto LP, No. 2:15-cv-03659-SVW-JEM, 2016 WL 871626, at *4
(C.D. Cal. Feb. 5, 2016); see also Future Foam, Inc. v. FXI, Inc., No. SACV 16-312-JLS (RAOx),
2016 WL 11752908, at *11 (C.D. Cal. Apr. 5, 2016).
115 See Docket 1 at 9–13; Docket 9 at 13–17.
116 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 62 (2013).
117 Id. at 67.
118 Docket 17 at 9–15.
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Motion to Dismiss because Defendants waived the defenses of personal jurisdiction and
venue.119 Therefore, the Court first addresses the threshold issue of waiver.
1. 	Waiver of Defenses
Pursuant to Federal Rule of Civil Procedure 12, improper venue or lack of
personal jurisdiction are waived as defenses unless they are raised in a pre-answer motion
or an answer.120 Here, ADB argues that Defendants have waived their personal jurisdiction
and venue defenses by failing to list them as affirmative defenses in their Answer.121
Defendants counter that these defenses have been preserved because they were asserted as
denials in their Answer.122
Improper 	venue 	and 	lack 	of 	personal 	jurisdiction 	are 	not 	among 	the
affirmative defenses listed in Federal Rule of Civil Procedure 8(c).123 Therefore, district
courts within this circuit “have found that failure to raise [lack of personal jurisdiction or
improper venue] as affirmative defenses in an answer does not necessarily waive the
opportunity to challenge venue and personal jurisdiction in a post-answer motion, as long
as those defenses are raised in some manner in the answer.”124 In their Answer, Defendants
responded to Plaintiff’s allegations regarding personal jurisdiction and venue by stating “to
the extent an answer is required the allegations . . . are denied.”125 	In another response
119 Docket 20 at 6–9.
120 Fed. R. Civ. P. 12(h), 12(g)(2).
121 Docket 20 at 7–8.
122 Docket 17 at 8–9; Docket 24 at 3–5.
123 Griffith v. Boll & Branch, LLC, No. 19cv1551 JM (LL), 2020 WL 532419, at *2 (S.D.
Cal. Feb. 3, 2020).
124 See id. (collecting cases).
125 Docket 9 at 2–3.
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implicating personal jurisdiction, Defendants “den[ied] that the court has jurisdiction over
the matter.”126 	The Court concludes that these responses are sufficient to preserve
Defendants’ personal jurisdiction and venue defenses. The Court therefore will reach the
merits of Defendants’ Motion to Dismiss.
2. 	Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) allows a party to move to dismiss a
case for lack of personal jurisdiction. 	“Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons.”127 	Alaska’s long-arm statute
“has been construed by the Alaska Supreme Court to ‘establish jurisdiction to the
maximum extent permitted by due process.’”128 “Due process requires that the defendant
have certain minimum contacts with the forum state such that the maintenance of the suit
does not offend ‘traditional notions of fair play and substantial justice.’”129 	Further,
because personal jurisdiction may be waived, “a litigant may give ‘express or implied
consent to the personal jurisdiction of the court’” without offending due process.130
Consent may be manifested through a forum selection clause.131 	The Ninth Circuit has
126 Id. at 2.
127 Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Daimler AG v. Bauman,
571 U.S. 117, 125 (2014)).
128 Clements v. Porch.com, Inc., No. 1:20-cv-00003-SLG, 2020 WL 5739591, at *5 (D.
Alaska Sept. 24, 2020) (quoting Ins. Co. of N. Am. v. Marina Salina Cruz, 649 F. 2d 1266, 1269
(9th Cir. 1981)).
129 Picot, 780 F.3d at 1211 (internal quotations omitted) (quoting Int’l Shoe Co. v. Wash.,
326 U.S. 310, 316 (1945)).
130 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14 (1985) (quoting Ins. Corp. of
Ireland v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)).
131 Id. (When “forum-selection provisions have been obtained through ‘freely negotiated
agreements” and are not ‘unreasonable and unjust,’ their enforcement does not offend due
process.”) (citation omitted) (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).
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held that a forum selection clause “alone [can] confer personal jurisdiction.”132 Therefore,
if the parties have agreed to a valid forum selection clause, that agreement alone evidences
consent to personal jurisdiction and “the court need not embark on a ‘minimum contacts’
analysis . . . .”133
As discussed above, the dispute at hand is covered by a forum selection
clause that is valid and enforceable. 	The forum selection clause in the Subcontract
specifically provides that “[t]he parties hereby agree to venue and personal jurisdiction in
Alaska.”134 	Therefore, by entering into the Subcontract, ASI consented to personal
jurisdiction in the District of Alaska. UFCC consented to personal jurisdiction by entering
into the Bond, which incorporates the Subcontract by reference.135 Defendants insist that
they lack sufficient contacts with Alaska, such that “plaintiff would be unable, absent the
forum selection clause, to establish personal jurisdiction.”136 This argument is inapposite;
consent via a valid forum selection clause confers personal jurisdiction irrespective of the
consenting parties’ contacts with the contractually selected forum.137 The Court therefore
DENIES Defendants’ Motion to Dismiss for lack of personal jurisdiction.
132 Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1406–07 (9th Cir. 1994).
133 Marshall Wealth Mgmt. Grp., Inc. v. Santillo, No. 18-CV-03510-LHK, 2019 WL
79036, at *3 (N.D. Cal. Jan. 2, 2019) (quoting Craigslist, Inc. v. Kerbel, No. C-11-3309 EMC,
2012 WL 3166798, at *6 (N.D. Cal. Aug. 2, 2012)).
134 Docket 17-4 at 6; Docket 20-3 at 6.
135 See Dub-L-EE, LLC v. J. Carrizal Gen. Constr., Inc., No. 1:21-cv-00624-BRB-JHR,
2021 WL 4972430, at *3 (D.N.M. Oct. 26, 2021) (“[Defendant] also agreed to submit to this
Court’s jurisdiction by incorporating the Subcontract into their Subcontract Performance Bond.”);
see also Granite Re, Inc. v. N. Lines Contracting, Inc., 478 F. Supp. 3d 772, 778–80 (D. Minn.
2020). 136 Docket 17 at 13.
137 See Chan, 39 F.3d at 1406.
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3. 	Venue
Defendants also move to dismiss for improper venue pursuant to Federal
Rule of Civil Procedure 12(b)(3).138 	The question of whether venue is “improper” is
governed by 28 U.S.C. § 1391.139 	Pursuant to 28 U.S.C. § 1391(b)(1), “[a] civil action
may be brought in . . . a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located.” Section 1391(c)(2) provides that
a corporation “shall be deemed to reside, if a defendant, in any judicial district in which
such defendant is subject to the court’s personal jurisdiction with respect to the civil action
in question . . . .”
As discussed in Section III.C.2. of this Order, both ASI and UFCC are subject
to this Court’s personal jurisdiction with respect to this action. Therefore, Defendants are
deemed “residents” of this judicial district for venue purposes and venue is proper under
§ 1391(b)(1).140 Defendants’ Motion to Dismiss for improper venue is DENIED.
IV. 	CONCLUSION
Defendants’ Motion to Transfer pursuant to 28 U.S.C. § 1404(a) is DENIED.
Defendants’ Motion to Dismiss based on personal jurisdiction or improper venue also is
138 Docket 17 at 13–15.
139 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55 (2013);
see also 28 U.S.C. § 1391(a)(1) (“[T]his section shall govern the venue of all civil actions brought
in the district courts of the United States . . . .”).
140 See Ward v. Certain Underwriters at Lloyd’s of London, No. 18-cv-07551-JCS, 2019
WL 2076991, at *4 (N.D. Cal. May 10, 2019) (“[E]very court to consider the issue has held that
personal jurisdiction even based on waiver is sufficient to establish ‘residency’ for the purpose of
§ 1391(c)(2).”); see also Domen v. Vimeo, Inc., No. 8:19-cv-01278-SVW-AFM, 2019 WL
4998782, at *2 (C.D. Cal. Sept. 4, 2019).
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DENIED. 	This action shall remain in the District of Alaska, where personal jurisdiction
and venue is proper according to the forum selection clause in the Subcontract.
IT IS SO ORDERED this 6th day of September, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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