Cornus Corporation v. Geac Enterprise Solutions, Inc

MEMORANDUM

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 exereis- ing 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, 106 Or.App. 83 , 806 P.2d 707, 709 (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…