Espie v. Washington National Insurance Company et al
OPINION AND ORDER: It is ORDERED as follows: (1) Defendant Caine & Weiner, LLC's 22 Motion to Dismiss or Transfer Venue is denied as further set out in the opinion and order. (2) Defendant Washington National Insurance Company's 20 Moti on to Dismiss pursuant to FRCP 12(b)(3) or to Transfer pursuant to 28 U.S.C. § 1404(a) is denied as further set out in the opinion and order. (3) Defendant Washington National's 26 Reply Brief is treated as a separate Motion to Dismiss ba sed on the doctrine of forum non conveniens. (4) Defendant Washington National's 26 Motion to Dismiss based on the doctrine of forum non conveniens is set for submission, without oral argument, on 7/31/2014. Motion Submission Deadline set for 7/31/2014. (5) Defendant Caine & Weiner shall have until 7/3/2014, to join in defendant Washington National's 26 Motion to Dismiss based on the doctrine of forum non conveniens if it desires to do so. (6) Plaintiff Daniel Espie shall have until 7/17/2014, to file a response. (7) The defendants shall have until 7/31/2014, to file a reply. Signed by Honorable Judge Myron H. Thompson on 6/27/2014. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
INSURANCE COMPANY, a
Corporation; and CAINE &
WEINER COMPANY, LLC, a
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Daniel Espie brought this action against
Caine & Weiner Company, LLC, asserting state-law claims
The case is now before this court on the defendants’
motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(3)
or transfer pursuant to 28 U.S.C. § 1404(a), based on a
The court finds that the clause
applies to the claims in this case, but those motions
will nonetheless be denied. However, Washington National
raised an additional basis for dismissal, the doctrine of
forum non conveniens, in a footnote in its reply brief.
The court will therefore treat the reply brief as a
separate motion to dismiss, and will give Caine & Weiner
I. LEGAL STANDARD
In considering a defendant’s motion to dismiss for
improper venue under Fed. R. Civ. P. 12(b)(3), the court
accepts the plaintiff’s allegations as true “only ‘to the
Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012)
(quoting Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d
1352, 1355 (11th Cir. 1990)).
“Rule 12(b)(3) is a
somewhat unique context of dismissal in which [courts]
complaint, and, although [courts] continue to favor the
evidentiary dispute, [courts] do not view the allegations
of the complaint as the exclusive basis for decision.”
In considering a defendant’s motion to transfer venue
pursuant to 28 U.S.C. § 1404(a), the court has “broad
discretion in weighing the conflicting arguments as to
venue,” England v. ITT Thompson Industries, Inc., 856
F.2d 1518, 1520 (11th Cir. 1988); it must engage in an
convenience and fairness.” Stewart Organization, Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988) (internal quotation
marks omitted); see also C.M.B. Foods, Inc. v. Corral of
Middle Georgia, 396 F. Supp. 2d 1283, 1286 (M.D. Ala.
2005) (Thompson, J.).
Plaintiff Daniel Espie is an insurance agent. During
the relevant time period, he worked as a regional manager
for a company which, in turn, acted as an independent
marketing organization for defendant Washington National
Espie and Washington National entered into a “Sales
See Affidavit of Christy
Wilson (Doc. No. 6-1) at 9-19.1 That agreement authorized
Espie to sell Washington National insurance and set forth
the terms of that relationship.
It also contained a
1. The documents submitted by the defendants in this
case indicate that “Conseco Marketing, L.L.C.,” rather
than Washington National, was the party that contracted
The relationship between Conseco and
Washington National is not obvious from the record in
See Affidavit of Christy Wilson (Doc. No.
6-1) at 20 (mentioning Conseco and Washington National in
correspondence to Espie).
However, from both sides’
filings it is clear that the relevant contracts
constitute agreements between Espie and Washington
National, and that there is no dispute on this point.
See id. at 2 (attesting that attached document is “the
controlling contract between Washington National and
Plaintiff Daniel Espie”); Letter Dated July 31, 2013
(Doc. No. 1-1) (referencing agreement between Washington
National and Espie).
exclusive jurisdiction of the courts of Hamilton County,
Indiana, with respect to any claim or cause of action,
Id. at 16.
Espie and Washington National also entered into a
separate “Advance Compensation Agreement.”
See id. at 5-
7; see also id. at 14-15 (Sales Representative Agreement
Compensation Agreement provided that, when Espie sold an
insurance policy to a customer, Washington National would
pay Espie’s commission in advance, before the company had
collected premiums from the customer.
It also provided
that, should the insurance policies Espie had sold lapse
or be terminated before Washington National had recovered
National's agreement with Espie be terminated, then Espie
would owe Washington National the outstanding sum that
had been advanced to him.
Representative Agreement “in order to permit [him] to
collected” by Washington National.
Id. at 5.
it provided that, other than specific modifications it
made, “[a]ll the terms, conditions and definitions of the
[Sales Representative Agreement] ... shall remain in
force and effect...”
Id. at 7.
The unmodified terms
Agreement modified some terms of the Sales Representative
Agreement, but reaffirmed all others including the forumselection clause, the court will treat the two as a
single contract for the purposes of this opinion.
the court refers to the “Sales Representative Agreement”
in the remainder of this opinion, it is referring that
Under this advance-compensation agreement, Espie came
to owe Washington National $ 29,019.04 in the form of
Washington National retained defendant Caine & Weiner
Company, LLC, to collect the debt owed by Espie.
Espie negotiated with Caine & Weiner, ultimately
reaching an agreement regarding the outstanding debt.
Under that agreement, which was memorialized in a letter
Caine & Weiner sent to Espie dated July 31, 2013, Espie
would pay $ 10,250.00 immediately and $100 per month
thereafter until the debt was satisfied.
Dated July 31, 2013 (Doc. No. 1-1).
Washington National would not report Espie’s debt to
See id.; Complaint (Doc. No. 1) at ¶ 11.
includes information about debts that insurance agents
owe to insurance companies.
According to the complaint,
deciding whether to contract with particular agents.
Caine & Weiner also represented that Espie’s debt would
not be made part of Espie’s credit report.
Dated July 31, 2013 (Doc. No. 1-1).
The letter does not
include any forum-selection clause.
Espie paid as he had agreed.
However, he alleges,
the defendants breached the agreement by reporting his
As a result, his contract with one
insurance company was cancelled, and the terms of his
contract with another company were adversely modified.
Espie then brought this suit, asserting six state-law
claims: one count of breach of contract, and five counts
defendants promised not to report Espie’s debts, but did
The defendants moved to dismiss, arguing that the
Agreement requires that this case be heard in Indiana.
After Espie amended his complaint, the defendants renewed
their motions on this same basis.2
A. Scope of the Forum-Selection Clause
The threshold issue is whether the forum-selection
clause applies to Espie’s claims at all.
jurisdiction of the courts of Hamilton County, Indiana,
with respect to any claim or cause of action, whether in
law or in equity, including specific performance, arising
2. Caine & Weiner, but not Washington National, also
moved to dismiss the complaint for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). It made no
substantial argument in support.
That motion will be
under or relating to this agreement...”
Christy Wilson (Doc. No. 6-1) at 16.
The defendants argue that Espie’s claims clearly
therefore fall within the scope of the forum-selection
essentially amount to the assertion that the defendants
failed to live up to their side of the agreement to
settle Espie’s debt, and it is clear that the debt itself
was incurred during the course of Espie’s work as an
insurance agent pursuant to the Sales Representative
Espie, on the other hand, argues that the
Agreement but a different contract, namely the July 31,
2013, letter settling his outstanding debt.
letter contract contains no forum-selection clause, he
argues that he is free to bring his case in this court.
If the court were to read the forum-selection clause
literally, then the defendants would be clearly correct.
The Sales Representative Agreement provides for exclusive
Indiana jurisdiction for any claim “relating to this
Affidavit of Christy Wilson (Doc. No. 6-1)
As the Eleventh Circuit Court of Appeals has
observed, in the broadest sense everything is ‘related’:
“[i]f ‘relate to’ were taken to extend to the furthest
stretch of its indeterminacy, it would have no limiting
Bailey v. ERG Enterprises, LP, 705 F.3d 1311,
1318 (11th Cir. 2013) (quoting Doe v. Princess Cruise
clauses) is not read literally.3
Instead, in the Eleventh Circuit, “A claim ‘relates
to’ a contract when ‘the dispute occurs as a fairly
3. In interpreting forum-selection clauses, the
Eleventh Circuit has relied heavily on cases interpreting
arbitration clauses. See Bailey, 705 F.3d at 1317-18.
This court will do likewise.
direct result of the performance of contractual duties.’”
Id. at 1217 (quoting Telecom Italia, SpA v. Wholesale
Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001)).
other words, in place of its literal meaning, the phrase
“marks a boundary indicating some direct relationship.”
Id. at 1317-18 (internal quotation marks omitted).
As such, the defendants’ argument, that the claims
here are obviously ‘related’ to the Sales Representative
Agreement in the literal sense, is unpersuasive.
application of forum-selection and arbitration clauses
containing similar language despite a clear relationship
Underwriters AG v. Triple I: Int’l Invs., Inc., for
example, the court was confronted with two contracts: one
of the contracts contained a clause requiring arbitration
for any dispute “in any way related to” that contract,
533 F.3d 1342, 1344 (11th Cir. 2008).
court noted the “obvious relationship between the two
Nonetheless, despite the clear relationship, the court
refused to find that allegation of breach of one contract
fell within the arbitration clause of other.
But Espie’s argument, that the fact that he is suing
under a different contract than the one which contains
the forum-selection clause means the clause does not
apply, is equally simplistic and unpersuasive.4
other cases, the Eleventh Circuit has found that forumselection and arbitration clauses do apply even though
4. In his brief, Espie also appears to argue that the
July 31, 2013, letter created a contract not with
Washington National but with Caine & Weiner.
extent that he makes it, this argument fails because
Caine & Weiner entered into the July 31 agreement on
behalf of Washington National. See Letter Dated July 31,
2013 (Doc. No. 1-1) (“Caine & Weiner, represents
Washington National Insurance, both fully and legally in
regards to this matter.”); Complaint (Doc. No. 1) at ¶ 8
(Washington National “hired or otherwise retained [Caine
& Weiner] to collect the amount of the allegedly owed
commission charge-backs from Plaintiff”); Affidavit of
Christy Wilson (Doc. No. 6-1) at 23-39 (collection-agency
the cause of action at issue is based on something other
than the contract which contains the clause.
v. Energy Servs. Grp. Int’l, Inc., for example, the court
selection clause, which applied to claims relating to her
employment contract, “should be read to encompass only
employment agreement,” and not the plaintiff’s statutory
claims. 634 F.3d 1326, 1330-31 (11th Cir. 2011).5 And in
Doe, the court found that the scope of the arbitration
clause, which also applied to any claims relating to the
plaintiff’s employment contract, was broad enough to
include her claims under federal statutory law, admiralty
law, and traditional maritime law, all of which relied on
her status as a seaman, but not broad enough to include
her common-law tort claims, which did not.
657 F.3d at
5. As discussed below, Slater has been abrogated in
part on other grounds by Atlantic Marine Const. Co., Inc.
v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct.
568, 577 (2013).
The parties have cited no case directly addressing
the instant situation, in which the claims relate most
directly to a subsequent agreement settling a debt that
in turn arose under a prior contract containing a forumselection clause.
Thus, on the question of whether
selection clause, “The case law yields no clear answer.”
Telecom Italia, 248 F.3d at 1114.
The cases do, however,
Several factors which the Eleventh
Circuit has emphasized in prior cases all point to the
conclusion that the claims in this case are encompassed
in the forum-selection clause.
One critical factor to consider is “whether the tort
result of the performance of contractual duties.”
In this case, it was foreseeable at the time Espie
signed the Sales Representative Agreement that he might,
as a result of advance payments made to him under the
contract, end up owing money to Washington National.
was also foreseeable that he might reach some settlement
with regard to that debt, and that Washington National
might breach that settlement.
The foreseeability of the
instant situation suggests that these claims do ‘relate
interpreted in the Eleventh Circuit.
another factor that the Eleventh Circuit has considered
important: the extent to which the claim is ‘independent’
of the contract.
When the claim in a case would be
viable even if the contract containing the clause had
never existed, the court has indicated that independence
is an important factor suggesting that the claim does not
‘relate to’ the contract.
See, e.g., Telecom Italia, 248
F.3d at 1116 (alleged tortious interference could have
taken place “even if TMI had no contractual relationship
with WTC”); Doe, 657 F.3d at 1219 (“The cruise line could
have engaged in that tortious conduct even in the absence
Doe.”); Triple I, 533 F.3d at 1347 (“Triple I’s claims
could have arisen even in the absence of any escrow
Similarly, when a claim would be viable even if all
parties had performed satisfactorily under the contract,
See, e.g., Bailey, 705 F.3d at 1318 (“the
Buyers would still be able to bring their ... fraud
obligations under the ... contracts”); Doe, 657, F.3d at
1219-20 (“The parties could each have fulfilled all of
their duties under the crew agreement and Doe could have
perfectly performed her services for the cruise line, and
the parties still be embroiled in the dispute alleged in
Doe’s common law claims...”); Hemispherx Biopharma, Inc.
‘performed the arbitrable contract perfectly, fulfilling
embroiled in this dispute.”) (quoting Gregory v. ElectroMechanical Corp., 83 F.3d 382, 385 (11th Cir. 1996)).
Thus, it is clear that the fact that a claim could
exist in the absence of the contract (or in the absence
of failure to perform under the contract) is important to
the determination of whether the claim ‘relates to’ the
However, the Eleventh Circuit has rejected the
contract and the claims necessarily means “the claims
‘relate to’ the contract.”
Bahamas Sales Assoc., LLC v.
Byers, 701 F.3d 1335, 1341 (11th Cir. 2012) (quoting
Triple I, 533 F.3d at 1347).
In other words, the fact
that a claim would not exist but for the contract (or but
for failure to perform under the contract) does not
establish that the claim ‘relates to’ the contract.
Nonetheless, it is clear from the court’s analysis in
the above-cited cases that a but-for relationship is
In each of those cases, the fact that the
relationship at all (or without any failure to perform
fully under the contract) was critical to the court’s
finding that the claim did not ‘relate to’ the contract.
If the lack of a but-for relationship is a critical
relationship also bears on the analysis, suggesting that
the claim does ‘relate to’ the contract.
In this case, there is a clear but-for relationship.
If there had been no contract, there would be no debt.
If there were no debt, there would be no promise to
refrain from reporting the debt (and, indeed, there would
be nothing to report).
Similarly, if all parties had
performed fully under the original contract, then there
would remain no outstanding debt to be settled with a
In other words, but for the Sales
Representative Agreement, and but for the failure to
fully perform under the Sales Representative Agreement,
there would be no claims in this case.
This is another
applicable to these claims.
Finally, the Eleventh Circuit has indicated that a
claim is more likely to be ‘related to’ a contract when
that contract is “the central document in the parties’
Triple I, 533 F.3d at 1347.
In Triple I,
there were two contracts: one which established the terms
of $ 10.4 million deal to issue bonds, and a second which
arranged for the first payment to be made via an escrow
clause, but the main bond contract did not.
was for breach of the bond contract.
Circuit found that this claim did not ‘relate to’ the
escrow contract, and noted that “To hold otherwise would
be to let the tail wag the dog.”
Id. at 1346.
distinguished Blinco v. Green Tree Servicing LLC, 400
F.3d 1308, 1311 (11th Cir. 2005), abrogated in part on
other grounds as recognized in Lawson v. Life of the S.
Ins. Co., 648 F.3d 1166, 1171 (11th Cir. 2011), because
in Blinco the arbitration clause had been part of “the
central document in the parties’ relationship.”
I, 533 F.3d at 1347.
In this case, “the central document in the parties’
Like the escrow contract at issue in Triple
I, the subsequent agreement memorialized in the July 31,
selection clause is found in the central document, not
As such, a finding that Espie’s claims
‘relate to’ the Sales Representative Agreement will not
result in the ‘tail wagging the dog’.
In sum, then, the court finds that the claims at
issue in this case do fall within the scope of the forumselection
provides for “exclusive jurisdiction” in another forum,
Affidavit of Christy Wilson (Doc. No. 6-1) at 16, the
court finds that the clause is mandatory rather than
Global Satellite Commc’n Co. v. Starmill
U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir. 2004) (“A
mandatory clause ... ‘dictates an exclusive forum for
litigation under the contract.’”) (quoting Snapper, Inc.
v. Redan, 171 F.3d 1249, 1262 n.24 (11th Cir. 1999)).
B. Enforcement Procedure
Given that the clause applies to these claims, the
The defendants seek dismissal pursuant to
Fed. R. Civ. P. 12(b)(3) or, in the alternative, transfer
Division pursuant to 28 U.S.C. § 1404(a).
In its reply
brief, Washington National also seeks dismissal under the
doctrine of forum non conveniens.
i. Motion to Dismiss - Rule 12(b)(3)
There is Eleventh Circuit authority that a court may
See Slater, 634 F.3d at 1332-33;
Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285,
1290 (11th Cir. 1998).
However, the Supreme Court has
recently rejected this approach, clarifying that such a
motion may be granted only if “venue is ‘wrong’ or
‘improper’” under the relevant statute, generally 28
U.S.C. § 1391(b).
Atlantic Marine Const. Co., Inc. v.
U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568,
“Whether the parties entered into a contract
containing a forum-selection clause has no bearing” on
the analysis under § 1391(b), and so “venue is proper so
irrespective of any forum-selection clause.”
Id. at 577-
The defendants have made no argument in this case
that venue is improper under § 1391(b), and the court
concludes venue is proper based on Espie’s residence.
See 28 U.S.C. § 1391(b)(2).
Therefore, the motion to
dismiss under Rule 12(b)(3) will be denied.
Motion to Transfer
In Atlantic Marine the Supreme Court went on to
address the proper methods for enforcing forum-selection
The Court found that such clauses may be
district court pursuant to 28 U.S.C. § 1404(a), and the
defendants in this case have moved for a transfer to the
Southern District of Indiana based on that provision.
Section 1404(a) provides that, “For the convenience of
parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other
district or division where it might have been brought or
to any district or division to which all parties have
In Atlantic Marine, the Court indicated a
strong preference for such transfer when there is a valid
134 S.Ct. at 581.
However, the forum-selection clause in this case does
not provide a basis for transfer to Southern District of
Indiana, Indianapolis Division, or to any other federal
The forum-selection clause calls for
“the exclusive jurisdiction of the courts of Hamilton
No. 6-1) at 16.
See Affidavit of Christy Wilson (Doc.
In interpreting a similar clause, the
Eleventh Circuit found that, because it did not specify
the state courts of a particular county, a suit in either
the state or federal courts located in that county would
satisfy the clause.
Global Satellite Commc'n Co. v.
Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir. 2004)
(“a suit either in the Seventeenth Judicial District of
Southern District of Florida, both of which are located
in Broward County, would satisfy the venue requirement”).
Hamilton County does fall within jurisdiction of the
Southern District of Indiana, Indianapolis Division. See
the federal court itself is located in Indianapolis,
which is in Marion County.
The Eleventh Circuit has held in an unpublished opinion
that suit in a district court which has jurisdiction
over, but is not itself located in, the county specified
in a forum-selection clause does not comply with the
“Under our clearly applicable reasoning
in Global Satellite, because the only
court situated in Suwannee County,
Florida is the Circuit Court for the
Third Judicial Circuit, the ... forum
selection clause did in fact designate
that court as the particular forum in
which the parties must bring suit. By
the same token, removal of the action to
the United States District Court for the
Middle District of Florida, Jacksonville
Division, located outside of Suwannee
County, Florida, would not satisfy the
Cornett v. Carrithers, 465 F. App’x 841, 843 (11th Cir.
2012); see also Millennium Med. Mgmt., LLC v. Ling Li,
2012 WL 1940112 at *2 (M.D. Fla. 2012) (Presnell, J.)
The court finds the reasoning of Cornett persuasive
and will follow it.6
Because there is no federal court
6. The wording of the clauses in these cases varies
In Global Satellite, the contract required
located in Hamilton County, a transfer to the Southern
District of Indiana, Indianapolis Division (or any other
federal court) would not comply with the forum-selection
clause in this case.
Therefore, the defendants’ motions
pursuant to 28 U.S.C. § 1404(a) will also be denied.
Motion to Dismiss - Forum Non Conveniens
Thus, it is clear that the forum-selection clause
designates a state court located in Hamilton County,
addressed this situation as well: “the appropriate way to
enforce a forum-selection clause pointing to a state ...
forum is through the doctrine of forum non conveniens.”
134 S.Ct. at 580.
The Court noted that “Section 1404(a)
venue to be “‘in Broward County.’” 378 F.3d at 1272. In
Cornett, the contract provided that “‘the venue shall be
Suwannee County.’” 465 F. App’x at 843. In this case,
the clause calls for venue in the “courts of Hamilton
See Affidavit of Christy Wilson (Doc.
No. 6-1) at 16.
This court does not discern any
significance from the difference in wording that might
undermine the applicability of Cornett.
is merely a codification of the doctrine of forum non
transferee forum is within the federal court system” and
indicated that, for cases to which § 1404(a) does not
apply, “the residual doctrine of forum non conveniens has
continuing application in federal courts.” Id. (internal
quotation marks omitted).
In this case, Washington National has moved for
dismissal under the doctrine of forum non conveniens.
“To obtain dismissal for forum non conveniens, ‘[t]he
private factors weigh in favor of dismissal, and (3) the
plaintiff can reinstate his suit in the alternative forum
Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1028
(11th Cir. 2014)(quoting Leon v. Millon Air, Inc., 251
F.3d 1305, 1310-11 (11th Cir. 2001)).
As the Eleventh Circuit recently observed, Atlantic
Marine made it clear that “an enforceable forum-selection
GDG Acquisitions, 749 F.3d at 1028.
Supreme Court noted that the analysis would be the same
for a motion to dismiss under forum non conveniens.
S.Ct. at 580 (“courts should evaluate a forum-selection
clause pointing to a nonfederal forum in the same way
that they evaluate a forum-selection clause pointing to
observations in Atlantic Marine regarding motions to
In discussing motions to transfer, the Supreme Court
stated that, “When the parties have agreed to a valid
ordinarily transfer the case to the forum specified in
extraordinary circumstances unrelated to the convenience
of the parties should a § 1404(a) motion be denied.”
[should be] given controlling weight in all but the most
exceptional cases’”) (quoting Stewart Organization, Inc.
v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring) (alteration in original)).
where the parties have agreed to a valid forum-selection
clause, courts are instructed to give no weight to the
plaintiff’s choice of forum and to ignore the parties’
Id. at 581-2.
plaintiff bears the burden of establishing that transfer
Id. at 581.
Applying these lessons to a motion under the doctrine
of forum non conveniens, the Eleventh Circuit found that
“A binding forum-selection clause requires the court to
entirely favor the selected forum.”
749 F.3d at 1029.
Therefore, if the court finds that a
forum-selection clause applies to the claims at issue (as
this court already has done in this case), “the district
court must find that the forum non conveniens private
factors unequivocally support the selected forum.”
“The forum non conveniens analysis should then proceed,
unusual cases ... the interest of justice is served by
Atlantic Marine, 134 S.Ct. at 583) (internal quotation
However, these considerations principally bear on the
conveniens analysis: “(2) the public and private factors
weigh in favor of dismissal.”
GDG Acquisitions, 749 F.3d
at 1028 (internal quotation marks omitted).
Acquisitions, the Eleventh Circuit was clear that, after
the court finds that the private factors support the
agreed-upon forum, the “analysis should then proceed” to
the rest of the forum non conveniens test.
Id. at 1029.
But, in this case, Washington National has offered no
argument or evidence regarding the first and third prongs
of the forum non conveniens analysis: “(1) an adequate
alternative forum is available ... and (3) the plaintiff
can reinstate his suit in the alternative forum without
undue ... prejudice.”
Id. at 1028.
Indeed, far from
establishing that the Hamilton County, Indiana, state
courts offer an adequate alternative and that Espie can,
in fact, reinstate his case there, the defendants in this
case have not even mentioned those courts (indicating
instead a preference for the Indiana federal district
Ordinarily, while the “burden of demonstrating that
an appropriate alternative forum exists is not a heavy
Del Monte Fresh Produce Co. v. Dole Food
Co., Inc., 136 F. Supp. 2d 1271, 1276 (S.D. Fla. 2001)
But, as noted above, in Atlantic Marine the
Court specified that, when the parties have entered into
a valid forum-selection clause, “the plaintiff bears the
burden of establishing that transfer to the forum for
which the parties bargained is unwarranted.”
In so doing, it specifically rejected the
district court’s finding in that case that the defendant
Id. at 583.
Applying this to the forum non
conveniens context, this court holds that, because the
existence of a valid forum-selection clause governing
these claims has been established, the burden now shifts
to Espie to establish that dismissal is not warranted.
Washington National raised the issue of forum non
conveniens for the first time in a footnote in its reply
Espie, therefore, has not yet had an opportunity
As such, the court will treat the reply
brief as a separate motion to dismiss, will allow Caine
& Weiner an opportunity to join in the motion, and will
allow Espie an opportunity to respond.
applicability of the forum-selection clause, dismissal is
For the foregoing reasons, it is ORDERED as follows:
(1) Defendant Caine & Weiner, LLC’s motion to dismiss
or transfer venue (Doc. No. 22) is denied.
(2) Defendant Washington National Insurance Company’s
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(3) or
to transfer pursuant to 28 U.S.C. § 1404(a) (Doc. No. 20)
(3) Defendant Washington National’s reply brief (Doc.
No. 26) is treated as a separate motion to dismiss based
on the doctrine of forum non conveniens.
(4) Defendant Washington National’s motion to dismiss
based on the doctrine of forum non conveniens (Doc. No.
26) is set for submission, without oral argument, on July
(5) Defendant Caine & Weiner shall have until July 3,
2014, to join in defendant Washington National’s motion
to dismiss based on the doctrine of forum non conveniens
(Doc. No. 26) if it desires to do so.
(6) Plaintiff Daniel Espie shall have until July 17,
2014, to file a response.
(7) The defendants shall have until July 31, 2014, to
file a reply.
DONE, this the 27th day of June, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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