Carolyn G. Kochert v. ADAGEN MEDICAL INTERNATIONAL , INCORPORATED and NORTH AMERICAN MEDICAL CORPORATION

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4483
C AROLYN G. K OCHERT ,
Plaintiff-Appellant,
v.
A DAGEN M EDICAL I NTERNATIONAL , I NCORPORATED
and N ORTH A MERICAN M EDICAL C ORPORATION ,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division at Lafayette.
No. 05 C 40—Allen Sharp, Judge.
____________
A RGUED S EPTEMBER 6, 2006—D ECIDED J UNE 28, 2007
____________
Before R OVNER , E VANS , and S YKES , Circuit Judges.
S YKES , Circuit Judge. This appeal presents the ques-
tion whether a claim for fraudulent inducement of a
contract is subject to the contract’s forum-selection clause,
and if so, whether the district court correctly dismissed
this suit for improper venue. Carolyn Kochert, a medical
doctor based in Lafayette, Indiana, filed a single-count
complaint in federal court in the Northern District of
Indiana seeking damages against Adagen Medical Inter-
national, Inc., and North American Medical Corporation
(collectively “Adagen”), each with principal places of
business in Georgia. Kochert alleged Adagen made fraudu-

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2 No. 05-4483
lent written and verbal representations to induce her to
enter into a contract to purchase a piece of medical
equipment. The district court dismissed Kochert’s com-
plaint for improper venue, citing the contract’s “Governing
Law/Venue/Forum” clause, which provides (among other
things) that Kochert consents to “jurisdiction, venue
and forum in the State Court of Fulton County, Georgia.”
The court took the view that any misrepresentation
forming the basis of Kochert’s fraudulent inducement
claim “necessarily” became “part of” the contract, making
the claim subject to the forum-selection clause.
We affirm, but on different reasoning. A misrepresenta-
tion made in the inducement of a contract is not “neces-
sarily” incorporated into the contract. A fraudulent
inducement claim generally requires an election of reme-
dies: either affirm the contract, retain the benefits, and
seek damages, or rescind the contract, return the bene-
fits, and seek restitution (reimbursement for expenses
incurred as a result of the fraud). Here, Kochert elected
to affirm the contract and sue for damages; that election,
however, does not necessarily make the alleged misrepre-
sentation “part of” the contract, as the district court
apparently thought was required for the forum-selection
clause to apply.
But dismissal for improper venue was correct in any
event. The forum-selection clause contains no language
limiting its application to certain categories of claims or
remedies. The parties agreed to the State Court of Fulton
County, Georgia, as the place of “jurisdiction, venue and
forum” for disputes about their respective rights and
obligations without regard to the nature of the claim; that
choice is valid, enforceable, and broad enough to apply
to Kochert’s fraudulent inducement claim.

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No. 05-4483 3
I. Background
Kochert, an anesthesiologist and pain specialist practic-
ing in Lafayette, considered purchasing the Accu-Spina
System (the “System”) from Adagen for use in her medical
practice. The System administers a form of noninvasive,
nonsurgical, computer-directed treatment for back pain,
and in communications leading up to the purchase, Adagen
made verbal and written representations to Kochert that
patient treatments using the System would be reimburs-
able by third-party payors such as Medicare and private
insurers. In reliance on these representations, Kochert
entered into a written purchase and sale agreement with
Adagen. Both parties fully performed under the contract,
which is to say Adagen delivered and installed the Sys-
tem and Kochert made full payment. Kochert began using
the System to treat patients; however, third-party payors
subsequently denied her reimbursement claims.
Kochert sued Adagen for fraudulent inducement but
did not (and could not) allege a separate claim for breach
of contract; the contract contained no warranty or other
language relating to third-party payors or the reimbursa-
bility of treatment claims. Adagen moved to dismiss for
improper venue pursuant to Rule 12(b)(3) of the Federal
Rules of Civil Procedure, citing the contract’s “Govern-
ing Law/Venue/Forum” clause. That clause provides as
follows:
GOVERNING LAW/VENUE/FORUM
This Agreement and the rights and obligations of
Buyer and Seller shall be governed by and con-
strued in accordance with the laws of the State of
Georgia in the United States of America. Buyer
agrees to consent to jurisdiction, venue and forum
in the State Court of Fulton County, Georgia,
United States of America. Buyer further agrees to
and does hereby irrevocably waive the defense of

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4 No. 05-4483
inconvenient forum and further irrevocably waives
trial by jury. Any controversy, dispute, claim or
complaint of whatever nature arising out of, in
connection with, or in relation to the interpreta-
tion, performance or breach of this Agreement
including any claim based on contract, tort or
statute, shall be resolved through a binding,
irrevocable and final Arbitration at JAMS/
ENDISPUTE, County of Fulton, State of Geor-
gia. . . .
(Emphasis added.)
The district court granted the Rule 12(b)(3) motion,
holding that Kochert’s fraudulent inducement claim
“arises out of, is connected with, and relates to” a breach
of the parties’ contract because “[a]ny promise or represen-
tation that could give rise to a fraud in the inducement
claim is necessarily part of the ‘Agreement’ that defines
the appropriate forum for this dispute.” The appropri-
ate forum, the court held, “is the State Court in Fulton
County, Georgia.” The court later granted Kochert’s mo-
tion to reconsider “to the following extent: the essential
holding of the Court’s . . . order was that this Court is not
the proper venue for the Plaintiff’s cause of action. That
essential holding shall remain unchanged. However, the
Court does not wish to opine on the proper forum for this
dispute, and any statement contained in the . . . order
that could be read as doing so should be disregarded.”
(Emphasis in original.)
II. Discussion
The district court’s order granting Adagen’s Rule 12(b)(3)
motion for improper venue based on the contractual forum-
selection clause is subject to de novo review. Cont’l Cas.
Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005);

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No. 05-4483 5
Cont’l Ins. Co. v. M/V Orsula, 354 F.3d 603, 607 (7th Cir.
2003).
There is a threshold question about what law applies.
Neither the district court nor the parties has directly
addressed the matter. The district court applied federal
law. In their appellate briefing, both sides apply the law of
the forum, Indiana, and federal law. Neither party argues
that the application of Georgia law (pursuant to the
contract’s choice-of-law provision) would alter the out-
come of the case. Where the parties have not identified
a conflict in state law, we will generally apply the law of
the forum state. Gould v. Artisoft, Inc., 1 F.3d 544, 549 n.7
(7th Cir. 1993). But as between Indiana and federal law,
the rule is unclear. We have previously noted that it is
unsettled in this circuit “whether state or federal law
applies in a dispute over a forum selection clause when
the case is dismissed rather than transferred pursuant
to 28 U.S.C. § 1404(a).” Muzumdar v. Wellness Int’l
Network, Ltd., 438 F.3d 759, 761 n.2 (7th Cir. 2006); see
also IFC Credit Corp. v. Aliano Bros. Gen. Contractors,
Inc., 437 F.3d 606, 608-09 (7th Cir. 2006). We need not
resolve the question here, however. The parties agree
that the forum-selection clause is valid and enforceable
under either federal or state law; they dispute only
whether this lawsuit falls within the scope of the clause.
As we have noted, the forum-selection clause is located
in the paragraph of the contract entitled “Governing
Law/Venue/Forum,” which addresses choice of law, juris-
diction, venue, forum selection, and arbitration. The first
clause of the paragraph specifies that “this Agreement”
and the “rights and obligations” of the parties “shall be
governed by and construed in accordance with the laws of
the State of Georgia.” This choice-of-law provision is
immediately followed by the forum-selection clause, which
provides that Kochert “agrees to consent to jurisdiction,
venue and forum in the State Court of Fulton County,

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6 No. 05-4483
Georgia.” The next sentence waives any inconvenient
forum defense and trial by jury. Finally, there is an
arbitration clause:
Any controversy, dispute, claim or complaint of what-
ever nature arising out of, in connection with, or
in relation to the interpretation, performance or
breach of this Agreement including any claim based
on contract, tort or statute, shall be resolved through
a binding, irrevocable and final Arbitration at
JAMS/ENDISPUTE, County of Fulton, State of Geor-
gia.
Kochert structures her argument around the language
of the arbitration clause. She asserts that her claim for
fraudulent inducement does not “arise out of,” is not
“connected with,” and does not “relate to” the “interpreta-
tion, performance or breach” of the contract. A fraudulent
inducement claim, she argues, is separate and distinct
from a claim on the contract. Here, the contract was
fully performed in that Adagen delivered the System and
Kochert paid for it, so she has no claim for breach. In any
event, her argument continues, the contract’s integra-
tion clause and the parole evidence rule preclude her
from making a contract claim based on statements
Adagen made during contract negotiations. Her fraud
claim, she maintains, is completely independent of the
contract, and the forum-selection clause therefore does
not apply.
The flaw in this line of argument is that it relies on the
language of the arbitration clause, but the question of
arbitrability is not presently before the court. Adagen did
not move to compel arbitration pursuant to the arbitra-
tion clause; it moved to dismiss pursuant to Rule 12(b)(3)
for improper venue. True, Adagen believes that Kochert’s
claim must be submitted to arbitration, but that question
has not been properly presented; the parties’ dispute
about arbitrability must be left for another day.

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No. 05-4483 7
The district judge got off on the wrong foot by adopting
Kochert’s mode of analysis. Referring to the language of
the arbitration clause, the judge concluded that Kochert’s
fraudulent inducement claim “arises out of, is connected
with, and relates to [a] breach of the agreement in ques-
tion” because “[a]ny promise or representation” underlying
the fraud claim is “necessarily part of the ‘Agreement’
that defines the appropriate forum for this dispute.” This
is both an incorrect reading of the contract and incorrect as
a matter of common law. Taking the latter first, a misrep-
resentation that fraudulently induces the making of a
contract does not “necessarily” become “part of ” the
contract. Under Indiana law:
Generally, a party bringing an action for fraud in the
inducement must elect between two remedies. . . . One
alternative is to affirm the contract, retain the bene-
fits, and seek damages. . . . The other alternative is
to rescind the contract, return any benefits received,
and be returned to the status quo. . . . If a party elects
to rescind the contract, the trial court must adjust
the equities and attempt to return the parties to the
status quo. . . . This usually necessitates not just a
rescission of the contract, but also a return of money
or other things received or paid under the contract,
plus reimbursement as special damages, for any
reasonable expenditures incurred as a proximate
result of the fraudulent conduct.
Am.’s Directories, Inc. v. Stellhorn One Hour Photo, Inc.,
833 N.E.2d 1059, 1068 (Ind. Ct. App. 2005) (internal
citations omitted). The election of remedies requirement
in fraudulent inducement cases is not particular to Indi-
ana. See R ESTATEMENT (S ECOND ) OF C ONTRACTS §§ 164
cmt. a, 378 (1981); R ESTATEMENT (S ECOND ) OF T ORTS , § 896
cmt. b (1977); 48 A M . J UR . 3 D Proof of Facts § 329 at § 17
(2007). Here, Kochert affirmed the contract and sued for
damages, but this election does not mean the alleged

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8 No. 05-4483
1 We express no opinion on the proper interpretation of the
arbitration clause.
2 Contractual jurisdiction, venue, and forum clauses can be
mandatory (exclusive) or permissive (nonexclusive). See, e.g.,
Muzumdar v. Wellness Int’l Network, Ltd., 438 F.3d 759,761-62
(7th Cir. 2006); Frietsch v. Refco, Inc., 56 F.3d 825, 829 (7th Cir.
1995); Paper Express Ltd. v. Pfankuch Maschinen GmbH, 972
F.2d 753, 755-57 (7th Cir. 1992).
misrepresentation (if proved) is incorporated into the
contract, as the district judge apparently believed.
The district court also mistakenly imported the terms
of the arbitration clause into the forum-selection clause.
Perhaps the language of the arbitration clause does have
some limited interpretive significance here; it, like the
forum-selection clause, points to Fulton County, Georgia.
But the district court was wrong to decide the Rule
12(b)(3) motion by reference to the specific limiting
language contained in the arbitration clause when the
question of arbitrability was not before the court. The
forum-selection clause is phrased far more generally. In
it, Kochert consents to “jurisdiction, venue and forum in
the State Court of Fulton County, Georgia” without regard
to the nature of the claim. The forum-selection clause
contains no language limiting its application to claims
“arising out of, in connection with, or in relation to the
interpretation, performance or breach” of the contract, as
does the arbitration clause. 1 Kochert might have argued
that the forum-selection clause should be construed as
merely permissive or nonexclusive. 2 But she did not raise,
much less develop this argument, and undeveloped
arguments are waived. Wang v. Gonzales, 445 F. 3d 993,
999 (7th Cir. 2006); Weinstein v. Schwartz, 422 F.3d 476,
477 n.1 (7th Cir. 2005).
Kochert’s fraudulent inducement claim stems from her
contractual relationship with Adagen. The contract’s

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No. 05-4483 9
forum-selection clause is not limited to claims for breach.
The language stipulates to “jurisdiction, venue and forum”
in the State Court of Fulton County, Georgia, for the
resolution of disputes, regardless of the category of the
claim. This broad language is most reasonably interpreted
to encompass Kochert’s fraudulent inducement claim. The
parties’ choice of Georgia law and arbitration (if applica-
ble) in Fulton County, Georgia, also suggests that venue
in the Northern District of Indiana is improper. We
conclude that the forum-selection clause applies here.
Our conclusion is consistent with American Patriot
Insurance Agency v. Mutual Risk Management, Ltd., 364
F.3d 884 (7th Cir. 2004). There, the plaintiff sued for
breach of contract and fraudulent inducement. The parties’
forum-selection clause provided that “any dispute concern-
ing this Agreement shall be resolved exclusively by the
courts of Bermuda.” Id. at 886. The plaintiff argued that
because its claims were not purely contractual, the forum-
selection clause should not apply. We disagreed, noting
that a plaintiff cannot defeat a forum-selection clause “by
its choice of provisions to sue on, of legal theories to press,
and of defendants to name in the suit.” Id. at 888. That the
plaintiff alleged fraud was not enough to make the con-
tract’s forum-selection clause inapplicable:
[A] dispute over a contract does not cease to be such
merely because instead of charging breach of contract
the plaintiff charges a fraudulent breach, or fraudulent
inducement, or fraudulent performance. . . . The
reason is not that contract remedies always super-
sede fraud remedies in a case that arises out of a
contract; sometimes they do, sometimes they don’t. . . .
It is that the existence of multiple remedies for
wrongs arising out of a contractual relationship does
not obliterate the contractual setting, does not make
the dispute any less one arising under or out of or
concerning the contract, and does not point to a better

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10 No. 05-4483
forum for adjudicating the parties’ dispute than the
one they had selected to resolve their contractual
disputes.
Id. at 889 (internal citations omitted).
It is true that the language of the forum-selection clause
in American Patriot is stronger than that in the forum-
selection clause here, using the words “shall” and “exclu-
sively” whereas the language in our clause is the more
general “Buyer agrees to consent to jurisdiction, venue
and forum in the State Court of Fulton County, Georgia.”
But Kochert did not argue that this forum-selection clause
is permissive rather than mandatory, as we have noted.
And American Patriot’s primary point—that alleging a
noncontract claim or remedy does not “obliterate the
contractual setting” for purposes of the forum-selection
clause—is fully applicable here. See also Hugel v. Corp. of
Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) (rejecting the
argument that a tortious interference with business
relationship claim is not covered by a contractual forum-
selection clause).
For the foregoing reasons, the district court’s order
dismissing this action on improper venue grounds pursu-
ant to Rule 12(b)(3) is AFFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-07

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