The opinion of the court was delivered by: BOLDT
The questions presented on the motion to dismiss are whether the contract provision providing that litigation shall be in the particularly designated state court is illegal; and, if not, whether the provision is applicable to the issues presented in this case.
On the record made to this time, namely, without responsive pleading to the complaint and only upon motion to dismiss with affidavits submitted in connection therewith, in my opinion it cannot be determined whether or not the contract provision in question is or will be applicable to issues of fact or law that may be controverted.
This appears to be a case of first impression in the Ninth Circuit as to legality of a contract provision of the kind in question. Counsel have not cited, and no decision in this circuit has been found, of either district or circuit court, which is directly or indirectly applicable. A majority of the decisions, primarily earlier or older cases, hold that such a contract provision is illegal and, therefore, unenforceable. A respectable minority of the decisions, all relatively recent, hold that such a provision is not illegal and is enforceable if just and reasonable. The principal, or at least one of the principal, decisions to that effect is in the Second Circuit case, Wm. H. Muller v. Swedish and American Lines, 224 F.2d 806, cert. den. 350 U.S. 903, 76 S. Ct. 182, 100 L. Ed. 793.
As above stated, applicability of the contract provision in this particular case cannot be determined at this time. Therefore, when the pleadings have been completed and sufficient discovery has been had to show, either one way or the other, whether the contract provision is applicable to issues in the case, counsel may renew their contentions in that respect. If the contract provision is found applicable to ...