                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 15 2009

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



                           FOR THE NINTH CIRCUIT


CORNUS CORPORATION, an Oregon                    No. 08-35901
corporation,
                                                 D.C. No. 1:08-cv-03030-CL
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

GEAC ENTERPRISE SOLUTIONS,
INC., a Georgia corporation; AMSI, a
GEAC Computer Inc. Company;
INFOR GLOBAL SOLUTIONS
(MICHIGAN) INC., a Georgia
corporation,

              Defendants - Appellants.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                     Argued and Submitted November 5, 2009
                                Portland, Oregon

Before:       KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                    page 2
      Even if plaintiff waived its right to seek remand in the prior, virtually

identical suit, that waiver did not extend to this case. The Cornus Partner

Agreement provides: “No delay or failure in exercising any right hereunder . . .

shall be deemed to constitute a waiver of such right” and “[t]his Agreement and

any matters relating thereto shall be governed, construed and interpreted in

accordance with the laws of Oregon.” Non-waiver provisions are enforceable

under Oregon law, at least so long as a party is alleged to have waived a right by a

failure to act rather than by an affirmative act. See Boise Joint Venture v. Moore,

806 P.2d 707, 709 (Or. Ct. App. 1991). The district court therefore did not err

when it held that plaintiff had not waived its right to seek remand in this case.

      Neither does claim preclusion prevent plaintiff from seeking to enforce the

forum-selection clause in this suit. Plaintiff could have, but did not, seek to

remand the prior action that has been dismissed for failure to prosecute. But only

“grounds for, or defenses to, recovery that were previously available to the parties”

are merged into a prior judgment. Fischel v. Equitable Life Assurance Soc’y of

U.S., 307 F.3d 997, 1005 n.5 (9th Cir. 2002). A forum-selection clause is not a

ground for or defense to recovery; it addresses only the proper forum in which to

litigate those grounds and defenses.
                                                                              page 3
      There is a strong presumption in favor of enforcing the parties’ bargained-

for choice of forum. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).

Even were we to find defendants’ equitable arguments against remand relevant,

they cannot overcome this presumption.


      AFFIRMED.
