                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 23 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DEADCO PETROLEUM, FKA New West                   No. 13-15146
Petroleum, a California corporation,
                                                 D.C. No. 2:12-cv-01446-MCE-
              Plaintiff - Appellant,             JFM

  v.
                                                 MEMORANDUM*
TRAFIGURA AG, a Connecticut
corporation; TRAFIGURA BEHEER
B.V., a Netherlands corporation,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                            Submitted March 12, 2015**
                             San Francisco, California

Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.

       Deadco Petroleum appeals from the district court’s judgment dismissing its

action for improper venue. The district court concluded that all of Deadco’s claims

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
were subject to a forum selection clause, which was located in the parties’ Product

Service Agreement (PSA), and which designated New York state courts as the

exclusive forum for litigation. We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291. Sportswear, Inc. v. Vuarnet Int’l, B.V., 114 F.3d 848, 850 (9th Cir.

1997). We typically review the district court’s decision to enforce a forum

selection clause for abuse of discretion. Kukje Hwajae Ins. Co. v. M/V Hyundai

Liberty, 408 F.3d 1250, 1254 (9th Cir. 2005). Also, “because enforcement of a

forum [selection] clause necessarily entails interpretation of the clause before it can

be enforced,” we review the district court’s interpretation of the forum selection

clause de novo. See Manetti-Farrow, Inc. v. Gucci Am. Inc., 858 F.2d 509, 513

(9th Cir. 1988). We affirm.

      Deadco’s central argument on appeal is that the PSA’s forum selection

clause is inapplicable because Deadco’s claims are not rooted in the PSA, but

rather in an alleged “overarching partnership” agreement of which the PSA was

only a part. However, Deadco failed to provide evidence supporting the existence

of its alleged partnership. See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324

(9th Cir. 1996) (“Absent some evidence submitted by the party opposing

enforcement of the clause . . . the provision should be [upheld]” (emphasis in

original), quoting Pelleport Investors, Inc. v. Budco Quality Theaters, Inc., 741


                                           2
F.2d 273, 280 (9th Cir. 1984). See also Spradlin v. Lear Siegler Mgmt. Servs. Co.,

926 F.2d 865, 868-69 (9th Cir. 1991) (affirming a district court’s dismissal, based

on a forum selection clause, because the appellant “relied in the district court [and]

on appeal . . . on broad and conclusory allegations of fraud without offering any

specific factual allegations or evidentiary support”).

      Additionally, in considering a motion to dismiss, courts are “not required to

accept as true conclusory allegations which are contradicted by documents referred

to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th

Cir. 1998). Here, not only was there a lack of evidence supporting an alleged

partnership, but the PSA itself explicitly disavows a partnership relationship

between the parties.

      Even if a partnership agreement did exist, it would not allow Deadco to

circumvent the PSA’s forum selection clause because all of Deadco’s claims

“cannot be adjudicated without analyzing whether the parties were in compliance

with the [PSA].” Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th

Cir. 1988). Indeed, each of Deadco’s claims seeks to enforce rights that either

appear in the PSA, or at least relate to the contractual relationship it describes. The

basic source of any duty owed by Trafigura to Deadco—whether originating in tort




                                           3
or in contract—derives ultimately from the contractual relationship described in the

PSA.

       Moreover, even if it were true that the relevant contractual terms were in

both the PSA and a partnership agreement, their presence in the PSA is dispositive.

A party cannot enumerate rights in two contracts, and then avoid the second

contract’s valid forum selection clause by telling the court it wishes to enforce its

rights under the first, which advantageously happens not to contain a forum

selection clause. Consequently, the district court did not abuse its discretion in

enforcing the forum selection clause as to all claims and dismissing the action for

improper venue.

       Next, the district court did not abuse its discretion in refusing to hold an

evidentiary hearing on the existence of the alleged partnership. See Murphy v.

Schneider Nat’l, Inc., 362 F.3d 1133, 1139 (9th Cir. 2003). First, because Deadco

failed to ask for an evidentiary hearing or to offer any evidence supporting the

existence of the alleged partnership, there was no genuine factual dispute to resolve

through an evidentiary hearing. Second, as stated above, even if Deadco could

show that a separate partnership agreement predated and coexisted with the PSA,

all causes of action still would be fairly encompassed within the PSA’s forum

selection clause.


                                           4
      Finally, the district court also acted within its discretion in dismissing the

action without leave to amend. A district court does not abuse its discretion in

denying leave to amend where the amendment would be futile. Reddy v. Litton

Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Here, it would have been futile to

permit Deadco to amend its claims “to set forth additional facts regarding the

overarching partnership between [the parties].” As stated above, even if the

“overarching partnership” existed and contained the same terms as the PSA, this

fact would not allow Deadco to circumvent the fully integrated PSA, which

contained the same relevant terms and the dispositive forum selection clause.

AFFIRMED.




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