UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1873


THAVIAN FORD,

                 Plaintiff – Appellee,

          v.

BIG DADDY DRAYAGE LLC,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.       Solomon Blatt, Jr., Senior
District Judge. (9:13-cv-00175-SB)


Submitted:   January 16, 2014             Decided:   March 5, 2014


Before NIEMEYER, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ryan D. Gilsenan, David S. Yandle, WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Charleston, South Carolina, for Appellant. Tom
Johnson, Warren Johnson, LAW OFFICE OF DARRELL THOMAS JOHNSON,
JR., LLC, Hardeeville, South Carolina; Algernon G. Solomons,
III, SPEIGHTS & RUNYAN, Hampton, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Big    Daddy          Drayage   LLC,   (“BDD”)     appeals    from     the

district court’s order denying its motion to dismiss Thavian

Ford’s     breach        of       contract   complaint     on   the   basis    of    a

forum-selection clause in another contract requiring litigation

in New Jersey.           BDD argues that the two contracts are              related.

We affirm.

             Ford was an independent contractor for BDD pursuant

to   the   terms     of       a    written   Independent    Contractor     Agreement

(“ICA”) that Ford and BDD entered into in September 2008 and

renewed in 2011. 1            The ICA makes no mention of the lease or sale

of a vehicle.       The ICA expressly establishes Newark, New Jersey,

as the exclusive forum for resolving any disputes “arising from

or related to this agreement.”                   In addition, the ICA provides

that the “Agreement contains the entire understanding between

the parties relating to the transaction contemplated by this

Agreement.         All    prior       contemporaneous    agreements    .   .   .    are

merged in this Agreement and shall be of no further force or

effect.”




      1
       The parties provide the 2011 renewal but not the original
2008 contract.   It is unclear whether the terms of the renewal
contract were similar or identical to the original contract.
Nonetheless, the parties rely exclusively on the 2011 contract.



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          Also in September 2008, Ford and BDD entered into a

Lease to Purchase Agreement, (“LPA”) whereby Ford paid monthly

installments toward the ownership of a tractor supplied by BDD.

In a paragraph entitled “Contractor Status,” the LPA provides

that “[a]t all times during the term of this Agreement, Lessee

agrees to be under contract to [BDD] . . . under the terms if of

an Independent Contract Agreement.   If, at any time during the

term of this Agreement, Lessee is not under contract with [BDD],

this Agreement shall terminate immediately.” 2   The LPA does not

contain a forum-selection clause.

          In January 2013, Ford filed a class action complaint

against BDD in the District of South Carolina, averring that he

and other drivers had fully paid for their vehicles but BDD

refused to transfer title or refund payments.    Ford stated that

BDD sold automobiles in South Carolina.   The complaint does not

include allegations regarding the employment practices of BDD,

nor does it mention the ICA.

          BDD filed a motion to dismiss and/or to transfer venue

to New Jersey, based upon the forum-selection clause in the ICA.


     2
       This odd language (“if of” and “Independent Contract
Agreement” instead of “Independent Contractor Agreement”) is
termed a scrivener’s error by Appellant. Appellee, on the other
hand, argues that the language renders the clause “unclear.”
The district court cited this language in determining that the
contract was ambiguous.



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The district court denied the motion to dismiss, finding that

the forum-selection clause in the 2011 ICA does not apply to

Ford’s claims arising out of the 2008 LPA.                                The court ruled

that, “at best,” the language is unclear and that any ambiguity

should    be    construed     against        the    drafter,        BDD.        The   district

court certified the matter for an interlocutory appeal, pursuant

to   28   U.S.C.       1292(b),     noting     that      there      was    a     “substantial

ground    for        difference     of      opinion.”         BDD    then        applied    for

permission to appeal in this court, which we granted.

               A motion to dismiss based on a forum-selection clause

should be treated as a Rule 12(b)(3) motion to dismiss based on

improper venue.          Sucampo Pharm., Inc. v. Astellas Pharma, Inc.,

, 550 (4th Cir. 2006).                   We review a district court’s

ruling on such a motion de novo.                   

  of    contract       construction           are    designed    to

determine the intent of the parties.                         Goldston v. State Farm

Mut. Auto. Ins. Co., 

, 518 (S.C. Ct. App. 2004).

Under     South       Carolina     law, 3    where       a   contract       is     clear    and

unambiguous, a court should rely on the plain language of the

contract, “interpret[ing] its lawful meaning and the intent of

      3
        Ford cites South Carolina law without analyzing its
applicability, and BDD cites only to federal case law without
analyzing the choice-of-law issue.    We conclude that South
Carolina law, the state where the contract was presumably made
and performed, is applicable.



                                               4
the parties as found within the agreement.”                                 Smith-Cooper v.

Cooper,    

,   274     (S.C.      Ct.       App.    2001);      see       also

Jordan v. Sec. Group, Inc., 

, 707 (S.C. 1993).                                       A

contract is ambiguous if it could be understood in more ways

than one, if its terms are indefinite, or if it could have a

double meaning.          Estate of Revis v. Revis, 

, 116

(S.C.    Ct.     App.    1997).            Where   a    contract          is     found      to    be

ambiguous, a court may look outside the four corners of the

document       to     determine       the     intent         of     the     parties.              

    be   construed          against       the       drafter.          See

Wheeler    v.       Dynamic    Eng’g,      Inc.,   

,       638   (4th       Cir.

1995).

            In their briefs, the parties essentially dispute the

applicability of two cases to the instant proceedings: Sucampo

and Drews Distrib., Inc. v. Silicon Gaming, Inc., 

(4th Cir. 2001).             Both of these cases found that two contracts

were related for the purposes of ruling that a clause in one

contract    applied       to    the     other.          We     find       the    instant         case

materially different from both Sucampo and Drews and conclude

that the district court correctly found that the LPA is not

governed        by      the     forum-selection              clause         in        the        ICA.

Specifically, unlike the instant case, the contract with the

forum-selection          clause       in     Sucampo         was     signed       before          the

agreement at issue--an agreement specifically executed “under”

                                               5
the first.     See 

–47.                  And in Drews, the

contract   with    the    forum-selection       clause       included      a     merger

clause specifically excepting the agreement at issue so it would

remain in force.       

–49.

           Here,      besides    the    fact   that    BDD      would     only    lease

tractors to its own independent contractors, Ford’s ICA and LPA

are entirely separate.          Moreover, the LPA does not reference a

specific independent contractor agreement nor state that the LPA

is governed by any such agreement; instead, the LPA merely (and

somewhat ambiguously) states that Ford had to be working under

contract   with    BDD   in     order   for    the    LPA       to   be   in   effect.

Furthermore, Ford’s ICA--the contract with the forum-selection

clause--does    not    require    or    even   mention      a    lease-to-purchase

agreement, and the LPA was not explicitly executed pursuant to

the ICA.

           BDD, the drafter of both contracts, did not attempt to

incorporate the LPA into the ICA or except the LPA from the

operation of the ICA’s merger clause.                  Given that the merger

clause applies to the entirety of the “transaction contemplated

by this Agreement,” the LPA must then be neither contemplated by

nor related to the Agreement.             If it were, the merger clause’s

failure to except the LPA would have voided the LPA, and neither

party argues that the LPA was void.                  Finally, as the district



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court found, the language referencing a “contract agreement” in

the LPA is ambiguous.

            Given   the   material      differences       between    the   instant

case and Sucampo and Drews, and the fact that BDD drafted the

agreements in question, the district court correctly ruled that

the   ICA’s     forum-selection    clause      is   not    applicable       to   the

current    conflict     arising   out    of   the   LPA.         Accordingly,     we

affirm.     We dispense with oral argument because the facts and

legal    contentions    are   adequately      presented     in     the    materials

before    the   court   and   argument      would   not    aid    the    decisional

process.



                                                                           AFFIRMED




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