J.B. Hunt Transport, Inc. v. S and D Transportation, Inc.
ORDER granting 6 Motion to Dismiss, or in the Alternative, to Transfer Venue. The Clerk is directed to transfer this case to the U.S.D.C. for the Southern District of Florida. Signed by Honorable Jimm Larry Hendren on August 22, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
J.B. HUNT TRANSPORT, INC.
Civil No. 11-5168
S AND D TRANSPORTATION, INC.
O R D E R
consideration defendant’s Motion to Dismiss, or in the Alternative,
to Transfer Venue (Doc. 6), and plaintiff’s response thereto (Doc.
The Court, being well and sufficiently advised, finds and
orders as follows with respect to the same:
On February 28, 2011, Plaintiff, J.B. Hunt Transport,
Inc. (“JBHT”), commenced this action against defendant, S and D
Transportation, Inc. (“S&D”), in Benton County Circuit Court.
On July 15, 2011, S&D removed the case to this Court and,
on July 21, 2011, S&D filed the present motion to dismiss, or in
the alternative, to transfer the case to the United States District
Court for the Southern District of Florida where a related case is
A brief summary of the underlying facts of this case is
transportation services for JBHT.
Pursuant to the Agreement, JBHT
requested that S&D transport a shipment of pet medications from
Memphis, Tennessee, to Pompano Beach, Florida. S&D transported the
shipment as requested, but when delivery was made to the consignee,
Petmed Express, Inc. (“Petmed”), in Florida, it was discovered that
the shipment was missing 31 boxes of the pet medications.
JBHT brought suit against S&D alleging that S&D is liable for
the full value of the shortage in the shipment in the amount of
JBHT asserts claims under the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. § 14706(b), and for breach
of the Agreement.
On April 30, 2011, after JBHT had initiated this lawsuit
against S&D, National Union Fire Insurance Company of Pittsburgh,
PA (“National Union”), as subrogee of Pedmed, filed suit against
JBHT for the loss of the 31 boxes of the pet medications.
National Union Fire Ins. Co. of Pittsburgh, PA v. J.B. Hunt
Transport, Inc., Case No. 11-21515-CIV (the “National Union case”).
In the National Union case, National Union asserts that JBHT is
liable for the loss of the boxes from the shipment and has demanded
payment for such loss from JBHT.
that JBHT’s complaint fails to state a claim because JBHT
has not suffered any damages yet and it is trying to
obtain payment from S&D prior to actually incurring
liability to pay for the missing cargo;
that JBHT lacks standing to bring a claim under the
that S&D does not operate in Arkansas and, thus, it
cannot be sued in Arkansas under the Carmack Amendment;
that JBHT’s breach of contract claim is preempted by the
that JBHT has failed to state a breach of contract claim
because JBHT has not suffered any damages;
that venue is improper in this Court;
that the forum selection clause in the Agreement should
be disregarded because it conflicts with other provisions
in the Agreement; and
that the Court does not have personal jurisdiction.
In the alternative, S&D asks the Court to transfer this case,
pursuant to 28 U.S.C. § 1404(a), to the United States District
Court for the Southern District of Florida where the National
Union case is pending.
S&D points out that it operates in Florida
and, thus, venue would be proper in Florida and the district court
in Florida would have personal jurisdiction over S&D. Further, S&D
notes that none of the events at issue in this case occurred in
Arkansas. Rather, all of the events occurred outside Arkansas, and
The Court now turns to the threshold issues of personal
jurisdiction and venue.
Personal Jurisdiction –- S&D asserts that JBHT has not
alleged that S&D has sufficient contacts with Arkansas such that
the Court can exercise personal jurisdiction over S&D.
JBHT does not address the question of whether S&D has
sufficient minimum contacts with Arkansas.
Rather, JBHT points to
the forum selection clause in the parties’ Agreement in which they
agreed that “for all claims personal jurisdiction and venue shall
be in the State of Arkansas and [S&D] agrees to waive any and all
objections thereto.” S&D asserts that the Court should disregard
the forum selection clause in the Agreement because it conflicts
with another part of the Agreement.
“Due process is satisfied when a defendant consents to
personal jurisdiction by entering into a contract that contains a
valid forum selection clause.”
St. Paul Fire & Marine Ins. Co. v.
Courtney Enters., Inc., 270 F.3d 621, 624 (8th Cir. 2001) (internal
quotation marks and citations omitted).
A forum selection clause
is enforceable “unless it is invalid or enforcement would be
unreasonable and unjust.”
Dominium Austin Partners, L.L.C. v.
Emerson, 248 F.3d 720, 726 (8th Cir. 2001).
“Where, as here, the
forum selection clause is the fruit of an arm’s length negotiation,
the party challenging the clause bears an especially heavy burden
of proof to avoid its bargain.”
Servewell Plumbing, LLC v. Fed.
Ins. Co., 439 F.3d 786, 789 (8th Cir.
marks and citation omitted).
S&D argues that the forum selection clause is invalid
because it conflicts with another provision in the Agreement that
provides that any liability which S&D might have to JBHT shall be
“as set forth in Title 49 U.S.C. § 14706 (The Carmack Amendment)
and applicable common law. . . .”
S&D argues that the forum
statutory venue provision in the Carmack Amendment.
Under the Carmack Amendment, 49 U.S.C. § 14706(d)(1), a civil
action against a delivering carrier may be brought in any district
court or state court “in a State through which the defendant
S&D asserts that JBHT has not alleged that S&D
“operates in Arkansas” and, thus, the forum selection clause –which calls for venue in Arkansas –- contravenes the Carmack
Amendment and, thus, is invalid.
As S&D Points out, however, the only case on which it relies
improperly contravene’s the Carmack Amendment
Corp. v. Kawasaki Kisen Kaisha Ltd., 557 F.3d 985 (9th Cir. 2009)
(holding that forum selection clauses are generally forbidden under
the Carmack Amendment) -- was overturned by the Supreme Court when
the Supreme Court found the Carmack Amendment was inapplicable to
the facts of that case.
See Kawasaki Kisen Kaisha Ltd. v. Regal-
Beloit Corp., ___ U.S. ___, 130 S. Ct. 2433, 177 L.Ed.2d 424
JBHT asserts that S&D is an interstate carrier with its
principal place of business in Cordova, Tennessee, and that “it is
without dispute that Arkansas is a state ‘through which’ Defendant
[S&D] operated and was willing to continue to operate as evidenced
by [S&D’s] Agreement with [JBHT].”
Thus, JBHT asserts that the
forum selection clause in the Agreement is harmonious with the
venue provision of the Carmack Amendment.
The Court finds that S&D has failed to meet its heavy
burden of showing that the forum selection clause in the Agreement
S&D has come forward with no case law to support its
position –- other than the Ninth Circuit case that was overturned
by the Supreme Court.
Further, S&D has not proven that the forum
selection clause is, in fact, in conflict with the venue provision
of the Carmack Amendment.
Therefore, the Court finds that the
forum selection clause is valid and that the Court has personal
jurisdiction over S&D.
S&D asserts that venue is not proper in this
district because the forum selection clause is invalid.
Court finds that venue is proper here, however, S&D asserts that
this case should be transferred to the United States District Court
for the Southern District of Florida pursuant to 28 U.S.C. §
JBHT agrees that this case should be transferred.
Section § 1404(a) provides that: “[f]or 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.”
Section 1404(a) only
applies if venue is proper in this Court.
As set forth above, the Agreement contains a forum
selection clause that provides that Arkansas is the proper venue
for this case, and the Court has already determined that the forum
selection clause is valid and enforceable.
Thus, venue is proper
here and the transfer provision of § 1404(a) is applicable.
Further, even if venue did not properly lie in this
district, the Court can also transfer this case under 28 U.S.C. §
Specifically, § 1406(a) provides that “[t]he district
court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division
in which it could have been brought.”1
Transfer factors -- when considering whether to transfer
a case, the court must weigh in the balance a number of casespecific factors.
See Terra Int’l v. Mississippi Chem Corp., 119
F.3d 688, 691 (8th Cir. 1997).
Such factors to be considered
include both “convenience” factors and “interests of justice”
The “convenience” factors include:
convenience of the parties;
Further, the Court notes that, even if the Court lacked
personal jurisdiction over S&D, the Court could still transfer
this case pursuant to 28 U.S.C. §§ 1631, 1404(a) or 1406(a). See
generally Wright, Miller & Cooper, § 3842 (citing Goldlawr v.
Heiman, 369 U.S. 463, 82 S. Ct. 913, 8 L.Ed.2d 39 (1962)); see
also Johnson v. Woodcock, 444 F.3d 953, 954 n.2 (8th Cir. 2006).
convenience of the witnesses-including the willingness
of witnesses to appear, the ability to subpoena witnesses
and the adequacy of deposition testimony;
the accessibility to records and documents;
the location where the conduct complained of occurred;
the applicability of each forum state’s substantive law.
Terra, 119 F.3d at 696.
The “interests of justice” factors include:
the plaintiff’s choice of forum;
the comparative costs to the parties of litigating in
each party’s ability to enforce a judgment;
obstacles to a fair trial;
conflicts of law issues; and,
the advantages of having a local court determine
questions of local law.
The Court finds that, in apply the above factors to this case,
both the convenience of the parties and the interest of justice are
served by the transfer of this case to the United States District
Court for the Southern District of Florida pursuant to 28 U.S.C. §
Indeed, none of the events giving rise to this lawsuit
occurred in Arkansas.
Florida is where the shipment was delivered
and is where at least some of the witnesses and records are
Further, there is related litigation pending in the
Southern District of Florida.
For these reasons, the Court will
grant defendant’s motion to transfer this case to the Southern
District of Florida.
IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss, or
in the Alternative, to Transfer Venue (Doc. 6) is hereby GRANTED to
the extent that the Court finds that the Clerk is hereby ordered to
transfer this case to the United States District Court for the
Southern District of Florida pursuant to 28 U.S.C. § 1404(a).
defendant’s motion as those issues will be better addressed by the
IT IS SO ORDERED.
/s/JIMM LARRY HENDREN
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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