Bright et al v. Zimmer Spine Inc
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 2/14/14. (SAC )
2014 Feb-14 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JENNIFER BRIGHT and BRIGHT
SURGICAL SOLUTIONS, L.L.C.,
ZIMMER SPINE, INC.,
Case No.: 14-CV-00095-WMA
Plaintiffs Jennifer Bright (“Bright”) and Bright Surgical
Solutions, L.L.C., (“Bright Surgical”) a company of which Bright is
the owner and sole member, bring this action seeking a declaratory
judgment that the non-competition clause in their contract with
defendant Zimmer Spine, Inc., (“Zimmer”) is unenforceable.
the court is Zimmer’s motion to transfer the case to Minnesota.
For the reasons that follow, defendant’s motion will be granted.
Plaintiffs reside in Alabama and nowhere else.
into a contract with Zimmer by which they were to perform certain
work in Alabama.
When they concluded they were being damaged by a
non-competition clause in the contract, they brought suit in the
Circuit Court of Jefferson County, Alabama seeking a declaration
that the non-competition clause is void.
Zimmer, a Minnesota
corporation, removed the case to this court based on 28 U.S.C. §
1332 and the complete diversity of citizenship of the parties.
Zimmer now seeks a transfer of the case to a Minnesota court based
on the forum-selection clause in the contract.
Zimmer’s motion is remarkably similar to another motion this
court heard nearly 30 years ago.
The court then concluded that
Alabama law disfavors forum-selection clauses,1 and therefore that
the abundantly Alabamian action should remain in Alabama.
logic was found wanting both by the Eleventh Circuit, Stewart Org.,
Inc. v. Ricoh Corp., 810 F.2d 1066 (11th Cir. 1987) (en banc), and
by the Supreme Court, 487 U.S. 22 (1988).
The Supreme Court held
that the federal transfer statute, 28 U.S.C. § 1404, squarely
covered the issue, Stewart Org., 487 U.S. at 29-31, and therefore,
as a constitutional exercise of Congress’s lawmaking authority, id.
32, preempted the state law and provided the exclusive standard for
ruling on the transfer motion, id.
The § 1404 standard, said the
Supreme Court, required the district court to evaluate the transfer
motion using a “flexible and individualized analysis,” id. at 29,
weighing private and public interest factors including but not
limited to the presence of a forum selection clause, id. at 29-31.
After thorough fact-finding and extensive discussion
of the significance of the facts, including the forum-selection
Alabama has since softened its attitude toward forumselection clauses in general, but as will be shown in the pages
that follow, the court need not reach the intricacies of state
law in this case.
clause, the court concluded that “both the private and public
interests militate against a transfer,” whereupon the court denied
the transfer motion a second time.
Stewart Org., Inc. v. Ricoh
Corp., 696 F. Supp. 583, 591 (N.D. Ala. 1988).
concurring opinion in the Supreme Court opinion, determined that,
forum-selection clauses always control the venue.
See In re Ricoh
Corp., 870 F.2d 570, 574 (11th Cir. 1989) (citing Stewart, 487 U.S.
at 33 (Kennedy, J., concurring)).
The Circuit thus concluded that
this court had abused its discretion when it denied the motion to
transfer, and granted a writ of mandamus requiring this court to
grant the motion to transfer.
From this saga, this judge
reluctantly concluded that “[t]he Eleventh Circuit [has] simply
nailed the lid too tight” to ever deny a transfer motion based on
a forum-selection clause.
Stewart v. Dean-Michaels Corp., 716 F.
Supp. 1400, 1404 (N.D. Ala. 1989) (hereinafter “Dean-Michaels
Corp.”, to avoid confusion with the other Stewart cases).
These precedents, if taken alone, would convince the court
that it has no choice but to grant the instant transfer motion.
However, defendant here relies on a new and different authority:
the Supreme Court’s recent decision in Atlantic Marine Construction
Co., Inc. v. U.S. District Court for Western District of Texas, 134
S. Ct. 568 (2013).
In Atlantic Marine, the Court again enforced a
forum-selection clause through a § 1404 transfer, and again held
that “[o]nly under extraordinary circumstances unrelated to the
convenience of the parties should a § 1404(a) motion [based on a
undoubtedly feels that Atlantic Marine’s recentness, unanimity, and
enthusiasm in endorsing contracted for expectations combine to
remove any question that might linger about the irresistible power
of a forum-selection clause.
Instead, Atlantic Marine only renews
this court’s discomfort with the Stewart cases.
Marine, “there was no dispute that the forum-selection clause was
valid,” id. at 576, and the Court was meticulous in specifying that
its holding was that a district court should transfer a case
“[w]hen the parties have agreed to a valid forum-selection clause,”
id. at 581 (emphasis added).
See also id. at 581 n.5 (“Our
clause.”); id. at 573-83 (qualifying “forum-selection clause” with
the word “valid” eleven times).
If a court must determine that a
forum-selection clause is valid before the clause is enforced with
a § 1404 transfer order, it follows that the court must look to
state contract law to determine the validity of the clause before
it applies § 1404.
In such a case, the state issue is first and
separate from the federal issue, and federal law could not be said
to preempt applicable state law.
See Hanna v. Plumer, 380 U.S.
460, 470-71 (1965) (explaining that Erie applies when an issue is
not covered by a federal statute or a Federal Rule of Civil
Under such circumstances there should be no question
that courts must apply state law pursuant to the “twin aims of
Erie” test, under which a court cannot apply a federal rule if
doing so would encourage forum shopping or produce inequitable
administration of the law. See Stewart, 487 U.S. at 33-41 (Scalia,
J., dissenting) (analyzing a forum-selection clause under the twinaims test and concluding that “[t]he Eleventh Circuit's rule
clearly encourages forum shopping . . . [because s]uit might well
not be pursued, or might not be as successful, in a significantly
less convenient forum,” and that the rule “allow[s] an unfair
Having voiced these concerns arising from Atlantic Marine,
this court will not pursue the subject so far as to hold that
Atlantic Marine has implicitly overruled or narrowed the import of
Stewart, especially when Atlantic Marine cites Stewart extensively
and with approval.
The Eleventh Circuit’s Stewart opinions remain
on the books, and this court understands well its role in the
The majority in Stewart found that the federal law covered
the issue completely, and so never reached the issue of the “twin
aims of Erie.” Thus, the way that Justice Scalia applied the
twin aims test, if not the fact that he did, is pure dicta, and
there is no negative inference to be drawn from the fact that the
discussion was part of a dissenting opinion. As dicta it is
persuasive, and, frankly, state law virtually never loses out
once the “twin aims” test is applied.
Or, as this court more bluntly observed in
describing its Stewart experience, “[a] ‘2x4’ between the eyes is
Dean-Michaels Corp., 716 F. Supp. at 1403.
Because “this court does not believe that the Eleventh Circuit left
open any room for arguing the nice distinctions” between Stewart
and other forum-selection clause cases, id., the court cannot find
that enforcing the clause in this case violates Alabama’s public
policy against forum-selection against its citizens, Pl.’s Opp’n at
Neither are plaintiffs saved by their four-page discussion
of a decision of an Alabama trial court.
See id. at 10-13
(discussing Rep, Inc. v. Stmicroelectronics, Inc., 2009 WL 7215384
(Ala. Cir. Ct., Jan. 14, 2009)).
State courts are not governed by
§ 1404, the federal transfer statute.
an entirely different legal question.
Rep, Inc. was dealing with
Rep, Inc. contains some
persuasive argument, but an Alabama trial court has the same
authority to overrule the Eleventh Circuit that this court has.
For the foregoing reasons, defendant’s motion to transfer
venue will be granted.
The court will contemporaneously issue an
order consistent with this opinion.
DONE this 14th day of February, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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