Waste Management of Louisiana, L.L.C. v. Jefferson Parish
Filing
30
ORDER denying 8 Motion to Dismiss for Lack of Jurisdiction; Motion to Dismiss for Failure to State a Claim. Signed by Judge Nannette Jolivette Brown. (jjl)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF LOUISIANA, L.L.C.
CIVIL ACTION
VERSUS
NO. 13-6764
JEFFERSON PARISH
SECTION: “G”(5)
ORDER AND REASONS
This litigation involves a landfill and waste disposal contract between Plaintiff Waste
Management of Louisiana, L.L.C. (“Waste Management”) and Defendant Jefferson Parish. Before
the Court is Jefferson Parish’s “Motion to Dismiss,”1 wherein Jefferson Parish requests that the
Court dismiss this case for forum non conveniens, or, alternatively, for failure to state a claim upon
which relief can be granted. Having considered the pending motion, the memoranda in support, the
memorandum in opposition, the statements made at oral argument, the complaint, and the applicable
law, the Court will deny the motion.
I. Background
According to the complaint, on October 9, 1996, Jefferson Parish entered into a “Time
Contract to Provide Services to Operate, Manage, and Maintain the Jefferson Parish Sanitary
Landfill Site” (the “Landfill Time Contract”) with John Sexton Sand and Gravel Corp (“Sexton”).2
In 1998, with the approval of Jefferson Parish, Sexton sold, transferred, and assigned the Landfill
Time Contract to Waste Management.3
1
Rec. Doc. 8.
2
Rec. Doc. 1 at ¶ 7.
3
Id.
Pursuant to the Landfill Time Contract, Waste Management managed the Jefferson Parish
Sanitary Landfill (the “Landfill”) and the disposal of all solid waste and sewage sludge generated
in Jefferson Parish.4 According the complaint, the Landfill was divided into Phases I, II, IIIA, and
IIIB.5 Under the terms of the contract, Waste Management received an initial lump sum from
Jefferson Parish as well as a “tipping fee” for all wastes disposed of in Phases IIIA and IIIB. In turn,
Waste Management was obligated to pay a royalty on certain wastes to Jefferson Parish.6 Waste
Management alleges that the term of the Landfill Time Contract was to end when Phases IIIA and
IIIB were filled and closed.7
According to Waste Management, on or about May 17, 2012, while the Landfill Time
Contract was still in effect, Jefferson Parish and IESI Landfill Corporation (“IESI”) entered into a
“Contract to Provide Services to Operate, Manage, and Maintain the Jefferson Parish Sanitary
Landfill Site” (the “IESI Contract”).8 The IESI Contract called for IESI to develop a new Phase IVA
of the Landfill, located between and partially on top of Phases IIIA and IIIB.9 Waste Management
claims that IESI’s development of Phase IVA interfered with its ongoing operations in Phase IIIB.10
4
Id. at ¶ 8.
5
Id.
6
Id. at ¶ 10.
7
Id. at ¶ 9.
8
Id. at ¶ 12.
9
Id. at ¶ 13
10
Id.
2
Further, Waste Management asserts that Jefferson Parish forced it to relocate a haul road to facilitate
IESI’s development of Phase IVA.11
Waste Management claims that in March 2013, at Jefferson Parish’s request, Waste
Management agreed to end its Landfill operations by May 1, 2013, even though Phase IIIB had yet
to be filled and closed.12 According to the complaint, Waste Management transitioned Landfill
operations to IESI on April 30, 2013.13 Following the transition, however, Waste Management
alleges that it continued to work on the installation of a final cap system, “consisting of soil and
synthetic layers/liners,” that would close Phase IIIB.14 According to Waste Management, its work
on the final cap system was complicated by Jefferson Parish’s failure to collect and control landfill
gases.15
On August 21, 2013, Waste Management delivered a “Notice of Termination” to Jefferson
Parish, purporting to terminate the Landfill Time Contract, effective August 31, 2013.16 Waste
Management claims that it terminated the contract due to Jefferson Parish’s failure to pay certain
invoices.17 On August 31, 2013, Waste Management ceased work on the Landfill; according to the
11
Id. at ¶ 14.
12
Id. at ¶ 15.
13
Id.
14
Id.
15
Id. at ¶¶ 23–24.
16
Id. at ¶ 16.
17
Id.
3
complaint, the final cap system “was largely complete” at this time.18 According to Waste
Management, it assigned the performance obligations of the final capping work to Jefferson Parish.19
B.
Procedural Background
On December 20, 2013, Waste Management filed suit against Jefferson Parish in the United
States District Court for the Eastern District of Louisiana.20 In its complaint, Waste Management
asserts that Jefferson Parish owes $461,108.60 in unpaid invoices.21 Additionally, Waste
Management claims that Jefferson Parish interfered with Waste Management’s performance under
the Landfill Time Contract and caused Waste Management to perform additional services.22 Finally,
Waste Management alleges that it performed “emergency hurricane debris collection and
management services for Jefferson Parish,” for which it has never been paid.23 Waste Management
brings claims for breach of contract, failure to pay, unjust enrichment, quantum meruit, detrimental
reliance, and attorneys’ fees.24
On January 22, 2014, Jefferson Parish filed the pending “Motion to Dismiss.”25 On February
11, 2014, Waste Management filed a memorandum in opposition.26 With leave of the Court,
18
Id.
19
Id. at ¶ 17.
20
See Rec. Doc. 1.
21
Id. at ¶ 18.
22
Id. ¶ 19.
23
Id. at ¶ 27.
24
Id. at ¶¶ 28–41.
25
Rec. Doc. 8.
26
Rec. Doc. 9.
4
Jefferson Parish filed a reply on February 14, 2014.27 The Court heard oral argument on the motion
to dismiss on February 19, 2014.28
II. Parties’ Arguments
A.
Jefferson Parish’s Arguments in Support
Jefferson Parish “moves the Court to dismiss this case for forum non conveniens, or, in the
alternative, moves the Court to dismiss this case pursuant to Fed. R. Civ. Proc. 12(b)(6).”29
According to Jefferson Parish, “[t]his case belongs in the 24th Judicial District for the Parish of
Jefferson, State of Louisiana.”30 Jefferson Parish contends that the Landfill Time Contract “contains
a valid forum-selection clause,”31 which states:
Jurisdiction: This Agreement and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State of Louisiana and the
parties hereto submit to the jurisdiction of the 24th Judicial District for the Parish of
Jefferson, State of Louisiana. The parties hereby waiving [sic] any and all plea[s] of
lack of jurisdiction or improper venue.32
Jefferson Parish asserts that “[t]his valid forum-selection clause in the Landfill Time Contract,
together with the recent ruling by the United States Supreme Court creating a new uniform standard
to enforce such clauses, requires this Court to grant Defendant’s Motion . . . .”33
27
Rec. Doc. 14.
28
Rec. Doc. 16.
29
Rec. Doc. 8 at p. 1.
30
Rec. Doc. 8-1 at p. 1.
31
Id. at p. 2.
32
Id. (second alteration in original).
33
Id.
5
In support of its position, Jefferson Parish cites the Supreme Court’s December 2013 ruling
in Atlantic Marine Construction Company, Inc. v. United States District Court for the Western
District of Texas.34 According to Jefferson Parish, Atlantic Marine holds “that in contract disputes
involving a forum-selection clause, a motion for transfer under 28 U.S.C. § 1404(a) is the proper
vehicle for the enforcement of a clause pointing to a federal forum and that a motion to dismiss
under the doctrine of forum non conveniens is the proper vehicle for enforcement of a clause
pointing to a nonfederal forum.”35 Jefferson Parish maintains that “the Supreme Court further held
that because both § 1404(a) and forum non conveniens entail the same balancing-of-interests
standards, ‘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 a federal forum.’”36 Jefferson
Parish explains that typically a court evaluating a motion to transfer or a motion to dismiss
“considers both the convenience of the parties and various public-interest considerations.”37
However, Jefferson Parish contends that under Atlantic Marine, “this changes when the parties’
contract contains a valid forum-selection clause reflecting their agreement as to the most proper
forum because the ‘enforcement of [] valid forum-section clauses, bargained for by the parties,
protects their legitimate expectations and furthers vital interests of the justice system.’”38 According
to Jefferson Parish, Atlantic Marine held that in ruling on a motion to transfer venue under 28 U.S.C.
§ 1404 premised on a valid forum-selection clause,
34
134 S. Ct. 568 (2013).
35
Rec. Doc. 8-1 at pp. 2–3.
36
Id. at p. 6.
37
Id. at p. 6.
38
Id. (quoting Atlantic Marine, 134 S. Ct. at 581).
6
. . . a district court must make three adjustments to their [sic] typical analysis: the
court (1) must give no weight to the plaintiff’s choice of forum; (2) should not
consider arguments about the parties’ private interests, which are deemed reflected
in the agreed-upon forum, and should look only to the public-interest factors that
“will not be common” and “will rarely defeat a transfer motion” and (3) should not
transfer the case with the original venue’s choice-of-law rules, as there is no need to
prevent a defendant from invoking § 1404(a) to gain the benefits of the law of
another jurisdiction where the plaintiff has ignored an agreed-upon forum in filing
suit.39
After discussing Atlantic Marine, Jefferson Parish turns to the doctrine of forum non
conveniens more generally. Quoting the Fifth Circuit’s decision in DTEX, LLC v. BBVA Bancomer,40
Jefferson Parish asserts that “[t]he doctrine of forum non conveniens proceeds from the premise that
in some41 circumstance [sic] federal courts can relinquish their jurisdiction in favor of another
forum.”42 According to Jefferson Parish, “[s]uch dismissal requires the initial determination that an
alternative and adequate forum exists for adjudication of the parties’ claims.”43 “If it does, ‘the court
must determine which forum is best suited to the litigation,’ a task accomplished through the
balancing of private- and public-interest factors.”44
Applying this standard, Jefferson Parish first asserts that “[i]n this matter, it cannot be
seriously disputed that even absent the forum-selection clause contained in the Landfill Time
Contract, that the 24th JDC is an adequate forum for adjudication of the parties’ claims for work
39
Id. at p. 7.
40
508 F.3d 785 (5th Cir. 2007).
41
The Court notes that Jefferson Parish misquotes DTEX. The opinion in DTEX states that in “rare”
circumstances—not “some” circumstances—federal courts can relinquish jurisdiction. DTEX, 508 F.3d at 794.
42
Rec. Doc. 8-1 at p. 8 (quoting DTEX, 508 F.3d at 794) (internal quotation marks omitted).
43
Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)).
44
Id. (quoting DTEX, 508 F.3d at 794).
7
performed on behalf of Jefferson Parish, within the physical boundaries of Jefferson Parish, pursuant
to a contract signed in Jefferson Parish and following a resolution authorizing [the] same by the
Jefferson Parish Council.”45 Further, Jefferson Parish maintains that “Waste Management has
consented to place itself under the jurisdiction of the 24th JDC under the plain language of the forumselection clause in the Landfill Time Contract.”46 Thus, Jefferson Parish concludes that “the entire
case and all parties can come within the jurisdiction of the 24th JDC, and the parties will neither be
deprived of any remedies nor treated unfairly in that forum.”47
With respect to the private-interest factors, Jefferson Parish states that the private-interest
factors to be considered include:
(i) the relative ease of access to sources of proof; (ii) the availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; (iii) possibility of view of the premises, if view would be appropriate to
the action; (iv) all other practical problems that make trial of a case easy, expeditious
and inexpensive . . . [including] enforceability of judgment; and whether the plaintiff
has sought to “vex,” “harass,” or “oppress” the defendant.48
Jefferson Parish argues that pursuant to Atlantic Marine, “arguments concerning the parties’ privateinterest factors should not be considered,”49 and the court “must deem the private-interest factors
to weigh entirely in favor of the preselected forum.”50
Next, Jefferson Parish identifies the public-interest factors as:
45
Id. at pp. 8–9.
46
Id. at p. 9.
47
Id.
48
Id. (alterations in original) (quoting DTEX, 508 F.3d at 794).
49
Id. at p. 10.
50
Id. (quoting Atlantic Marine, 134 S. Ct. at 582).
8
(i) the administrative difficulties flowing from court congestion; (ii) the local interest
in having localized disputes resolved at home; (iii) the interest in having the trial of
a diversity case in a forum that is familiar with the law that must govern the action;
(iv) the avoidance of unnecessary problems in conflicts of law, or in application of
foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with
jury duty.51
Jefferson Parish contends that “in matters involving a forum-selection clause, the Supreme Court
shifts the burden onto the party seeking to avoid its contractual obligation by filing suit in a forum
other than the one specified in the forum-selection clause to show that public-interest factors
overwhelming disfavor adjudication in the preselected forum.”52 According to Jefferson Parish:
In this case, it is axiomatic that Waste Management will be unable to carry its burden
to show that public-interest factors overwhelming disfavor adjudication of this matter
in the preselected forum, the 24th JDC. In fact, the public-interest factors are either
neutral between this Honorable Court sitting in the Eastern District of Louisiana or
the 24th JDC adjudicating this matter, or they are in favor of adjudication in the 24th
JDC.53
Finally, Jefferson Parish argues “[i]n the alternative, if this Honorable Court is disinclined
to dismiss the Complaint for forum non conveniens, this matter should still be dismissed pursuant
to Fed. R. Civ. Pro. 12(b)(6).”54 Jefferson Parish acknowledges that “[i]n Atlantic Marine, the
Supreme Court declined to consider whether a defendant in a breach-of-contract action could obtain
dismissal under Rule 12(b)(6) if the plaintiff filed suit in a district other than the one specified in a
forum-selection clause because the issue was not raised in the lower court but only in an amicus
brief on appeal.”55 However, Jefferson Parish raises the argument “out of an abundance of
51
Id. at pp. 9–10.
52
Id. at p. 10.
53
Id. at p. 11.
54
Id.
55
Id. (citing Atlantic Marine, 134 S. Ct. at 580).
9
caution.”56 According to Jefferson Parish, “dismissal is proper pursuant to Fed. R. Civ. P. 12(b)(6)
because the Plaintiffs’ [sic] Complaint, based on and incorporating by reference the Landfill Time
Contract, taken as true, contains an affirmative defense on its face via the forum-selection clause,
and therefore fails to state a claim upon which relief can be granted.”57
B.
Waste Management’s Arguments in Opposition
In opposition to Jefferson Parish’s motion to dismiss, Waste Management argues that “the
clear language of the clause at issue, as well as incontrovertible case law, reveals that this ‘forum
selection clause’ did not mandate selection of the 24th Judicial District Court as the exclusive forum
for disputes between the parties.”58 Rather, Waste Management maintains, “though establishing the
parties’ consent to the jurisdiction of the 24th Judicial District Court, this clause permits the selection
of a forum other than the 24th Judicial District Court.”59 According to Waste Management, “[n]o
different result is dictated by the recent decision of Atlantic Marine Const. Co., Inc. v. U.S. Dist.
Court for W. Dist. of Texas, relied upon exclusively by Jefferson Parish, because that case decided
the procedure to enforce a forum selection clause which mandated a forum to the exclusion of
others.”60
First, Waste Management contends that “[t]he ‘forum selection clause’ at issue here is
permissive, not mandatory or exclusive.”61 According to Waste Management:
56
Id. at p. 12.
57
Id. at p. 13.
58
Rec. Doc. 9 at p. 2.
59
Id.
60
Id.
61
Id.
10
Enforcement of a forum selection clause to require the filing of suit in a particular
forum is necessarily dependent on whether the parties have contracted to establish
an exclusive forum for the litigation of disputes. “Permissive” forum selection
clauses allow a suit to proceed in the named forum, but do not mandate that the
named forum be the exclusive forum for the suit. Stated differently, permissive
forum selection clauses, often described as “consent to jurisdiction clauses,”
authorize venue in a designated forum or forums but do not prohibit litigation
elsewhere.62
Waste Management maintains that “[t]he plain language of the clause in the Landfill Time Contract
does not designate the 24th Judicial District Court, Jefferson Parish, Louisiana, as the exclusive
forum in which disputes between the parties must be litigated.”63 Waste Management asserts that
the clause is “merely permissive”: “[w]hile the parties consent to the jurisdiction of the 24th Judicial
District Court, there is no mandate that jurisdiction in the 24th Judicial District Court is exclusive,
and there is no waiver of a right to have an action heard in another forum.”64
In support of its position that the clause at issue is permissive, Waste Management cites the
Fifth Circuit’s decisions in City of New Orleans v. Municipal Administrative Services, Inc.65 and
Keaty v. Freeport Indonesia, Inc.66 According to Waste Management, in City of New Orleans, the
Fifth Circuit analyzed a clause that provided: “The undersigned Contractor does further hereby
consent and yield to the jurisdiction of the State Civil Courts of the Parish of Orleans and does
hereby formally waive any pleas of jurisdiction on account of the residence elsewhere of the
62
Id. at pp. 2–3.
63
Id. at p. 3.
64
Id. at pp. 3–4.
65
376 F.3d 501 (5th Cir. 2004).
66
503 F.2d 955 (5th Cir. 1974).
11
undersigned Contractor.”67 According to Waste Management, the Fifth Circuit explained that “[a]
party’s consent to jurisdiction in one forum does not necessarily waive its right to have an action
heard in another.”68 Waste Management maintains that the Fifth Circuit “found that the clause at
issue did not establish state courts of the Parish of Orleans as the exclusive venue or jurisdiction,”
and thus affirmed the district court’s denial of a motion to remand.69 Similarly, in Keaty v. Freeport
Indonesia, Inc., the Fifth Circuit addressed a clause that stated: “This agreement shall be construed
and enforceable according to the law of the State of New York and the parties submit to the
jurisdiction of the courts of New York.”70 According to Waste Management, in Keaty “[t]he Fifth
Circuit held that the clause was not mandatory, but permissive,” and thus the court reversed the
district court’s dismissal for want of jurisdiction.71
Second, Waste Management contends that Atlantic Marine “is inapposite” as it addressed
“the question of the proper means of enforcing a mandatory forum selection clause under federal
law.”72 “While Atlantic Marine sheds light on the proper procedural mechanism to employ to
dismiss or transfer a matter subject to a forum selection clause which mandates a particular forum,”
Waste Management asserts that “it does not apply to the instant matter because there has been no
selection of the 24th Judicial District Court as the exclusive forum for the litigation of disputes
67
Rec. Doc. 9 at p. 4 (quoting City of New Orleans, 376 F.3d at 504) (internal quotation marks omitted).
68
Id. (quoting City of New Orleans, 376 F.3d at 504) (internal quotation marks omitted).
69
Id.
70
Id. at p. 5 (quoting Keaty, 503 F.2d at 956) (internal quotation marks omitted).
71
Id.
72
Id. at p. 7.
12
between the parties.”73 Waste Management maintains that “the clause at issue here is not a ‘valid
forum selection clause, which represents the parties’ agreement as to the most proper forum,’ as
contemplated by Atlantic Marine.”74 According to Waste Management, “by filing its suit in the
Eastern District of Louisiana, plaintiff Waste Management has not defied or flouted any contractual
obligation to file suit in the 24th Judicial Court because no such obligation exists.”75
Further, citing the Supreme Court’s decision in American Dredging Co. v. Miller,76 Waste
Management argues that “absent a mandatory forum selection clause, federal courts have the power
to dismiss damages actions under the common law forum non conveniens doctrine only ‘in causes
where the alternative forum is abroad.’”77 According to Waste Management, “[t]he Court in Atlantic
Marine did not change the longstanding rule set forth in American Dredging that, absent a
mandatory forum selection clause, the forum non conveniens doctrine is only appropriate when the
alternative forum is abroad.”78
Finally, Waste Management asserts that it “did not waive its right to bring suit in this court
and the Motion to Dismiss under F.R.C.P. Rule 12(b)(6) should be denied.”79
C.
Jefferson Parish’s Arguments in Further Support
In its reply memorandum, Jefferson Parish first asserts that Waste Management’s arguments
73
Id. at p. 8.
74
Id.
75
Id. at p. 9.
76
510 U.S. 443 (1994).
77
Rec. Doc. 9 at p. 10 (quoting Am. Dredging, 510 U.S. at 449 n.2).
78
Id.
79
Id. at p. 11.
13
“confuse jurisdiction and venue in its analysis of the forum selection clause at bar.”80 Specifically,
Jefferson Parish explains:
In support of its position, Plaintiff cites several cases involving the question of a
forum-selection clauses [sic] in the context of removal actions. Removal is governed
by statute, 28 U.S.C. § 1441 et seq and involves purely jurisdictional questions; that
is, removal requires an independent ground for subject-matter jurisdiction such as
diversity jurisdiction or federal question jurisdiction. It is only in the 28 U.S.C.
§ 1441 removal context that courts examine the issue of whether a forum selection
clause is “permissive” or mandatory” in order to determine whether a party has
specifically given a “clear and unequivocal waiver of that right” of removal.81
Thus, Jefferson Parish asserts that “[e]ven assuming, arguendo, that the forum-selection clause at
bar is ‘permissive,’ such a question is not relevant to the matter at hand because this is not a removal
action and no one is contending that Plaintiff waived its removal rights (a jurisdictional question).”82
Second, Jefferson Parish argues that Waste Management’s arguments “directly contravene
the recent ruling by the United States Supreme Court in Atlantic Marine Construction Company, Inc.
v. U.S. District Court for the Western District of Texas, 571 U.S. __, 2013 WL 6231157 (U.S. Dec.
3, 2013), which controls in this matter.”83 According to Jefferson Parish, “Plaintiff erroneously
characterizes the Supreme Court’s decision in Atlantic Marine as one dealing with the enforcement
of a ‘mandatory’ forum-selection clause.”84 “In fact,” Jefferson Parish maintains, “the United States
Supreme Court has never distinguished between ‘permissive’ and ‘mandatory’ forum-selection
80
Rec. Doc. 14 at p. 1.
81
Id. at p. 2.
82
Id. at p. 3.
83
Id. at p. 1.
84
Id. at p. 4.
14
clauses in any of its cases regarding enforcement of the same.”85 Jefferson Parish notes that Waste
Management cites Atlantic Marine’s statement that “[o]ur analysis presupposes a contractually valid
forum-selection clause.”86 According to Jefferson Parish, “instead of addressing the validity of the
forum-selection clause at issue in this case, Plaintiff improperly, and completely unsupported by
law, extrapolates its misplaced ‘permissive’ v. ‘mandatory’ analysis to equate ‘permissive’ with
‘invalid.’”87 Rather, Jefferson Parish maintains that “the proper analysis of whether a forumselection clause is valid was set-forth by the Supreme Court in The Bremen,” which according to
Jefferson Parish “holds that a contractual forum-selection clause is ‘prima facia valid and should
be enforced absent a clear showing that enforcement would be unreasonable or unjust, or that the
clause is invalid for such reasons as fraud or overreaching.’”88 Jefferson Parish asserts that the
forum-selection in this case “was a freely-negotiated agreement between sophisticated parties, which
was unaffected by fraud, undue influence or overweening bargaining power, and should be given
full effect.”89
Finally, Jefferson Parish avers that Waste Management “misstates the doctrine of forum non
conveniens.”90 Specifically, Jefferson Parish takes issue with Waste Management’s statement that
85
Id. (citing Atlantic Marine, 134 S. Ct. 568; Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988); M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)).
86
Id. (emphasis and alteration in original) (quoting Atlantic Marine, 134 S.Ct. 581 n.5) (internal quotation
marks omitted).
87
Id.
88
Id. at pp. 4–5 (quoting M/S Bremen, 407 U.S. at 5).
89
Id. at p. 6.
90
Id. at p. 1.
15
“the doctrine of forum non conveniens is ‘only appropriate when the alternative forum is abroad.’”91
According to Jefferson Parish, “this assertion directly contravenes the Supreme Court’s holding in
Atlantic Marine.”92 Jefferson Parish also contends that “it is black letter law that a ‘foreign’
jurisdiction for the purposes of forum non conveniens as applied by federal courts means either a
state court or a court in a foreign country, not only a court ‘abroad,’” although Jefferson Parish cites
no authority for this proposition.93 Further, Jefferson Parish distinguishes American Dredging Co.
v. Miller, a case cited by Waste Management, saying “American Dredging involved an appeal to the
United States Supreme Court by a Jones Act seaman from a Louisiana state supreme court’s decision
holding that La. Code Civ. Proc. Ann. art. 123(C), rendered the doctrine of forum non conveniens
unavailable in Jones Act and maritime cases brought in Louisiana courts.”94 “Accordingly,”
Jefferson maintains, “the American Dredging case has no application in the matter at hand.”95
III. Law and Analysis
As evident from the discussion above, the parties dispute whether the Supreme Court’s
recent decision in Atlantic Marine Construction Company, Inc. v. United States District Court for
the Western District of Texas applies to the forum non conveniens analysis in this case. Jefferson
Parish maintains that Atlantic Marine controls whenever the parties have negotiated a forum
selection clause absent a clear showing that enforcement would be unreasonable or unjust, or that
the clause is invalid for such reasons as fraud or overreaching. Waste Management, on the other
91
Id. at p. 7.
92
Id. at p. 8.
93
Id. (emphasis in original).
94
Id.
95
Id.
16
hand, contends that because the parties agreed to a permissive forum selection clause, Atlantic
Marine does not apply, and that without a mandatory forum selection clause, dismissal pursuant to
forum non conveniens is unwarranted.
To assess whether Atlantic Marine controls, it is important to place that decision within the
broader development of the doctrine of forum non conveniens. In the discussion that follows, the
Court first looks at forum non conveniens generally, and it then discusses the Atlantic Marine
decision. Finally, it examines whether the “mandatory” versus “permissive” distinction impacts the
applicability of Atlantic Marine.
A.
Forum Non Conveniens
The “ancient doctrine”96 of forum non conveniens serves as “a supervening venue provision,
permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial
court thinks that jurisdiction ought to be declined.”97 Pursuant to the doctrine, “a federal court has
discretion to dismiss a case on the ground of forum non conveniens when an alternative forum has
jurisdiction to hear the case, and trial in the chosen forum would establish oppressiveness and
vexation to a defendant out of all proportion to plaintiff’s convenience, or the chosen forum is
inappropriate because of considerations affecting the court’s own administrative and legal
problems.”98 Generally, courts use a four-part inquiry in evaluating whether forum non conveniens
warrants dismissal of an action:
96
14D Charles Alan Wright, et al, Federal Practice and Procedure § 3828 (4th ed.).
97
Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007) (quoting Am. Dredging
Co. v. Miller, 510 U.S. 443, 453 (1994)) (internal quotation marks omitted).
98
Id. (quoting Am. Dredging, 510 U.S. at 447–48) (internal quotation marks and alterations omitted).
17
First, the district court must assess whether an alternative forum is available. An
alternative forum is available if the entire case and all parties can come within the
jurisdiction of that forum. Second, the district court must decide if the alternative
forum is adequate. An alternative forum is adequate if the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court. If the district court decides
that an alternative forum is both available and adequate, it next must weigh various
private interest factors. If consideration of these private interest factors counsels
against dismissal, the district court moves to the fourth consideration in the analysis.
At this stage, the district court must weigh numerous public interest factors. If these
factors weigh in the moving party’s favor, the district court may dismiss the case.99
In this analysis, “the ‘availability and adequacy’ of the alternative forum are ‘threshold
requirements’ that must be established before the private interest factors and public interest factors
are considered.”100 At the third step of the forum nonconveniens inquiry, the “private interest”
factors to be evaluated include:
(i) the relative ease of access to sources of proof; (ii) availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; (iii) possibility of view of the premises, if view would be appropriate to
the action; (iv) all other practical problems that make trial of a case easy, expeditious
and inexpensive, enforceability of judgment; and whether the plaintiff has sought to
“vex,” “harass,” or “oppress” the defendant.101
Finally, the “public interest” factors include:
(i) the administrative difficulties flowing from court congestion; (ii) the local interest
in having localized controversies resolved at home; (iii) the interest in having the
trial of a diversity case in a forum that is familiar with the law that must govern the
action; (iv) the avoidance of unnecessary problems in conflicts of law, or in
99
Gonzalez v. Chrysler Corp., 301 F.3d 377, 279–80 (5th Cir. 2002) (internal citations and quotation marks
omitted).
100
Cotemar S.A. De C.V. v. Hornbeck Offshore Serv., —F. App’x—, 2014 WL 2111190, at *2, (5th Cir. May
21, 2014).
101
DTEX v. BBVA Bancomer, S.A., 508 F.3d 785, 794 (5th Cir. 2007) (quoting Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947)) (alterations omitted).
18
application of foreign law; and (v) the unfairness of burdening citizens in an
unrelated forum with jury duty.102
The defendant typically has the burden of persuading the court that dismissal on the ground of forum
non conveniens is appropriate.103 “Ordinarily a strong favorable presumption is applied to the
plaintiff’s choice of forum,”104 and “[u]nless the balance is strongly in favor of the defendant, the
plaintiff’s choice of forum should rarely be disturbed.”105
In its 2007 decision in Sinochem International Company, Ltd. v. Malaysia International
Shipping Corp., the Supreme Court observed that the scope of forum non conveniens has been
circumscribed since the doctrine’s origin. According to the Court in Sinochem, “[t]he common-law
doctrine of forum non conveniens ‘has continuing application in federal courts only in cases where
the alternative forum is abroad,’ and perhaps in the rare instances where a state or territorial court
serves litigational convenience best.”106 “For the federal court system,” the Court explained,
“Congress has codified the doctrine and has provided for transfer, rather than dismissal, when a
sister federal court is more convenient.”107 Thus, pursuant to 28 U.S.C. § 1404(a), “[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.”108 With respect to
102
Id. (quoting Dickson Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 342 (5th Cir. 1999)).
103
Id.
104
Id.
105
Id. (quoting Gulf Oil, 330 U.S. at 508) (internal quotation marks omitted).
106
Sinochem, 549 U.S. at 430 (citations and alterations omitted) (quoting Am. Dredging, 510 U.S. at 449 n.2).
107
Id.
108
28 U.S.C. § 1404(a).
19
situations where the alternative forum is a state court, Sinochem suggested that forum non
conveniens may “perhaps” be available “in the rare instances where a state or territorial court serves
litigational convenience best.”109 Sinochem, however, does not explain what these “rare instances”
are.110
B.
Atlantic Marine Construction Co., Inc. v. United States District Court for the Western
District of Texas
On December 13, 2013, the Supreme Court issued its opinion in Atlantic Marine, addressing
the analysis lower courts should utilize in assessing motions to transfer venue under 28 U.S.C.
§ 1404 or motions to dismiss pursuant to the doctrine of forum non conveniens. In Atlantic Marine,
a payment dispute arose between a general contractor and subcontractor working on a construction
project at Fort Hood in Texas.111 The contract between the parties contained a forum selection
clause, providing that all disputes between the parties “shall be litigated in the Circuit Court of the
City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia,
Norfolk, Division.”112 When the plaintiff-subcontractor filed suit in the United States District Court
for the Western District of Texas, the defendant-general contractor moved to dismiss the case for
improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), or to transfer venue pursuant
to 28 U.S.C. § 1406(a), which states 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,
109
Id.; see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722 (1996) (“[T]o the extent we have continued
to recognize that federal courts have the power to dismiss damages actions under the common-law forum non conveniens
doctrine, we have done so only in ‘cases where the alternative forum is abroad.’” (quoting Am. Dredging, 510 U.S. at
449 n.2)).
110
The Court has not located any case explaining the “rare instances” referenced in Sinochem.
111
Atlantic Marine Constr. Co., Inc v. U.S. Dist. Ct. for the W. Dist. of Tex., 134 S. Ct. 568, 575 (2013).
112
Id.
20
transfer such case to any district or division in which it could have been brought.”113 The district
court denied both motions, and the Fifth Circuit denied defendant’s petition for a writ of
mandamus.114
The Supreme Court reversed. It held that a forum selection clause does not render a different
venue “wrong” or “improper” within the meaning of Rule 12(b)(3) or 28 U.S.C. § 1406;115 rather,
a forum-selection clause pointing to a particular federal district should be enforced through a motion
to transfer under 28 U.S.C. § 1404.116 The Court also explained that “the appropriate way to enforce
a forum-selection clause pointing to state or foreign forum is through the doctrine of forum non
conveniens.”117 According to Atlantic Marine, “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 a federal forum.”118
The Supreme Court then proceeded to discuss the analysis lower courts should utilize in
assessing motions to transfer venue under 28 U.S.C. § 1404 or motions to dismiss pursuant to the
doctrine of forum non conveniens. It noted that in the absence of a forum selection clause, “the
district court must evaluate both the convenience of the parties and various public-interest
considerations. Ordinarily, the district court would weigh the relevant factors and decide whether,
on balance, transfer would serve ‘the convenience of the parties and witnesses’ and otherwise
113
Id. at 576.
114
Id.
115
Id. at 577.
116
Id. at 579.
117
Id. at 580.
118
Id.
21
promote ‘the interest of justice.’”119 The presence of a forum-selection clause, however, alters this
typical approach. The Supreme Court explained:
The calculus changes, however, when the parties’ contract contains a valid
forum-selection clause, which “represents the parties’ agreement as to the most
proper forum.” The “enforcement of valid forum-selection clauses, bargained for by
the parties, protects their legitimate expectations and furthers vital interests of the
justice system.” For that reason, and because the overarching consideration under
§ 1404(a) is whether a transfer would promote “the interest of justice,” “a valid
forum-selection clause [should be] given controlling weight in all but the most
exceptional cases.”120
Specifically, “[t]he presence of a valid forum-selection clause requires district courts to
adjust their usual § 1404(a) analysis in three ways.”121 First, “the plaintiff’s choice of forum merits
no weight,”122 because “when a plaintiff agrees by contract to bring suit only in a specified
forum—presumably in exchange for other binding promises by the defendant—the plaintiff has
effectively exercised its ‘venue privilege’ before a dispute arises.”123 Second, “a court evaluating a
defendant’s § 1404(a) motion to transfer based on a forum-selection clause should not consider
arguments about the parties’ private interests.”124 Rather, a court “must deem the private-interest
factors to weigh entirely in favor of the preselected forum.”125 “As a consequence,” the Supreme
119
Id. at 581 (quoting 28 U.S.C. § 1404(a)).
120
Id. (internal citations omitted) (quoting Stewart Org., Inc. v. Rioch Corp., 487 U.S. 22, 31 (1988); Stewart,
487 U.S. at 33 (Kennedy, J., concurring)).
121
Id.
122
Id.
123
Id. at 582.
124
Id.
125
Id.
22
Court explained, “a district court may consider arguments about the public-interest factors only.”126
Third, “when a party bound by a forum-selection clause flouts its contractual obligation and files
suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s
choice-of-law rules.”127 Under this revised analytical framework, the forum selection clause will
usually control:
When parties have contracted in advance to litigate disputes in a particular forum,
courts should not unnecessarily disrupt the parties’ settled expectations. A
forum-selection clause, after all, may have figured centrally in the parties’
negotiations and may have affected how they set monetary and other contractual
terms; it may, in fact, have been a critical factor in their agreement to do business
together in the first place. In all but the most unusual cases, therefore, “the interest
of justice” is served by holding parties to their bargain.128
Notably, although Atlantic Marine determined that a court should enforce a forum-selection
clause pointing to a state forum through the doctrine of forum non conveniens,129 the Court never
addressed its statement in Sinochem that “[t]he common-law doctrine of forum non conveniens ‘has
continuing application in federal courts only in cases where the alternative forum is abroad,’ and
perhaps in the rare instances where a state or territorial court serves litigational convenience best.”130
C.
“Permissive” Forum Selection Clauses
Although Atlantic Marine did not distinguish between different kinds of forum selection
clauses, the Fifth Circuit—as well as the other circuits—recognizes both “mandatory” and
126
Id.
127
Id.
128
Id. at 583.
129
Id. at 580.
130
Sinochem, 549 U.S. at 430 (citations and alterations omitted) (quoting Am. Dredging, 510 U.S. at 449 n.2).
23
“permissive” forum selection clauses.131 As the Fifth Circuit explained in City of New Orleans v.
Municipal Administrative Services, Inc.:
A party’s consent to jurisdiction in one forum does not necessarily waive its right to
have an action heard in another. For a forum selection clause to be exclusive, it must
go beyond establishing that a particular forum will have jurisdiction and must clearly
demonstrate the parties’ intent to make that jurisdiction exclusive. It is important to
distinguish between jurisdiction and venue. Although it is not necessary for such a
clause to use the word ‘venue’ or ‘forum,’ it must do more than establish that one
forum will have jurisdiction.132
In this manner, the Fifth Circuit distinguishes between clauses in which the parties consent to
personal jurisdiction in a particular forum, and clauses in which the parties require that the action
be filed in a particular forum. A clause mandates the specified forum only when its language clearly
communicates that all litigation will occur only in that forum.133
For example, in Keaty v. Freeport Indonesia, Inc., the Fifth Circuit addressed a forum
selection clause that read: “This agreement shall be construed and enforceable according to the law
of the State of New York and the parties submit to the jurisdiction of the courts of New York.”134
The court held that the clause waived personal-jurisdiction defenses the parties might have to suit
131
See, e.g., City of New Orleans v. Mun. Admin. Serv., Inc., 376 F.3d 501, 504 (5th Cir. 2004) (“A party’s
consent to jurisdiction in one forum does not necessarily waive its right to have an action heard in another. For a forum
selection clause to be exclusive, it must go beyond establishing that a particular forum will have jurisdiction and must
clearly demonstrate the parties’ intent to make that jurisdiction exclusive.”); Keaty v. Freeport Indonesia, Inc., 503 F.2d
955, 958 (5th Cir. 1974) (holding that the trial court erred in interpreting a contractual provision as a “mandatory forumselection clause” and determining that “this is not a situation where the contract, on its face, clearly limits actions
thereunder to the courts of a specified locale”); see also, e.g., Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir. 2003)
(holding that “[t]he forum selection clause is permissive,” rather than mandatory or exclusive).
132
Id.
133
UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210, 219 (5th Cir.2009) (“Mandatory
forum-selection clauses that require all litigation to be conducted in a specified forum are enforceable if their language
is clear.” (citing City of New Orleans, 376 F.3d at 504)).
134
Keaty, 503 F.2d at 956.
24
in New York, but did not mandate that New York be the exclusive forum to litigate all disputes.135
Similarly, in Caldas & Sons, Inc. v. Willingham, the Fifth Circuit examined a forum selection clause
providing that “[t]he laws and courts of Zurich are applicable.”136 There, the court determined that
“the parties consented to the personal jurisdiction of the Zurich courts. Beyond that, however, the
language does not clearly indicate that the parties intended to declare Zurich to be the exclusive
forum for the adjudication of disputes arising out of the contract.”137
Although Atlantic Marine never addressed the “permissive” versus “mandatory” distinction,
district courts across the country have generally limited the Atlantic Marine framework to situations
where the forum selection clause is mandatory. For example, in RELCO Locomotives, Inc. v. AllRail,
Inc., a court in the Southern District of Iowa determined that Atlantic Marine did not apply where
the forum selection clause at issue stated that “‘[e]ach Party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of [Quebec]’ and ‘waives any right it has to object to an
action brought in such courts.’”138 The RELCO court explained that “Atlantic Marine’s discussion
of forum-selection clauses describes those where ‘a plaintiff agrees by contract to bring suit only in
a specified forum,’”139 and thus determined that “the opinion contemplated only mandatory forumselection clauses when assessing their effect on forum non conveniens analysis.”140 Finding that the
135
Id. at 956.
136
Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 127 (5th Cir. 1994).
137
Id. at 128.
138
RELCO Locomotives, Inc. v. AllRail, Inc., —F. Supp. 2d—, 2014 WL 1047153, at *8 (S.D. Iowa Mar. 5,
2014) (emphasis and alteration in original).
139
Id.
140
Id.
25
plaintiff did not agree to bring suit exclusively in Quebec, the court applied “the traditional forum
non conveniens analysis, and not the modified Atlantic Marine analysis.”141
Likewise, in United States ex rel. MDI Services, LLC v. Federal Insurance Company, a court
in the Northern District of Alabama applied Atlantic Marine only after determining that the forum
selection clause was mandatory. In its analysis, the court explained that whether the forum selection
clause was mandatory or permissible was a threshold issue:
Plaintiffs argue that the court should deny the transfer because, unlike the
“mandatory” forum-selection clause at issue in Atlantic Marine, the forum-selection
clause in the Subcontract is “permissive.” The forum-selection clause in Atlantic
Marine “stated that all disputes between the parties ‘shall be litigated in the Circuit
Court for the City of Norfolk, Virginia, or the United States District Court for the
Eastern District of Virginia, Norfolk Division.’” The use of the imperative “shall”
indicates that the Supreme Court had before it a mandatory forum-selection clause
that dictated an exclusive forum for litigation under the contract. This fact is
significant because the Supreme Court reasoned that the mandatory forum-selection
clause at issue in Atlantic Marine “represented the parties’ agreement as to the most
proper forum,” and “enforcement of [the clause], bargained for by the parties,
protects their legitimate expectations and furthers vital interests of the justice
system.”
A permissive forum-selection clause, on the other hand, only authorizes jurisdiction
in a designated forum but does not prohibit litigation elsewhere. Thus, the parties to
a permissive forum-selection clause only bargain for what may constitute a proper
forum, rather than what constitutes the exclusive forum for litigating disputes. In that
respect, keeping a case in the plaintiff’s chosen forum despite a permissive
forum-selection clause would not “unnecessarily disrupt the parties’ settled
expectations.” Accordingly, the considerations relevant to altering the § 1404(a)
analysis for mandatory forum-selection clauses would not apply in this case if
Plaintiffs are correct that the Subcontract’s forum-selection clause is permissive.142
141
Id.
142
United States ex rel. MDI Serv., LLC v. Fed. Ins. Co., No. 13-2355, 2014 WL 1576975, at *3 (N.D. Ala.
Apr. 17, 2014) (internal citations omitted) (quoting Atlantic Marine, 134 S. Ct. at 575, 581, and 583).
26
Similar approaches have been taken by courts in the Southern District of New York143 and the
Middle District of Florida.144
At least one district court, however, has concluded that Atlantic Marine applies even if the
forum selection is permissive. In United American Healthcare Corporation v. Backs, a court in the
Eastern District of Michigan explained:
Defendants attempt to argue that the guidance provided by Atlantic Marine does not
apply here because this case involves a permissive forum selection clause whereas
the forum selection clause at issue in Atlantic Marine was mandatory. (See SPA
[Stock Purchase Agreement] section 9.19: “Each of the Parties submits to the
jurisdiction of any state or federal court sitting in the State of Michigan in any
proceeding arising out of or relating to this Agreement and agrees that all claims in
respect of the proceeding may be heard and determined in any such court . . . .”
(emphasis added)). However, Defendants have cited no authority showing that this
distinction is even relevant in this jurisdiction, nor any authority showing that such
a distinction would change this Court’s analysis of a section 1404 issue. Therefore,
this Court finds that Atlantic Marine will inform this Court’s analysis of Defendants’
current motion.145
There is no binding authority addressing whether the forum non conveniens framework set
forth in Atlantic Marine applies where the parties only agree to a permissive, rather than mandatory,
forum selection clause. Nevertheless, the Court finds the approach taken by RELCO, MDI Services,
and other district courts that took into consideration whether the forum selection was mandatory or
143
See, e.g., Fubon Ins. Co. Ltd., No. 12-5035, 2014 WL 1383604, at *5 (S.D.N.Y. Mar. 3, 2014). In Fubon,
the court recognized that under Atlantic Marine “a valid forum selection clause requiring suit in a foreign forum must
be given ‘controlling weight in all but the most exceptional cases.” Id. (quoting Atlantic Marine, 134 S. Ct. at 579).
However, it explained that under Second Circuit precedent, “the validity of a forum selection clause is determined under
a four-part analysis,” which looks at, inter alia, “whether the clause is ‘mandatory or permissive.’” Id. (quoting Phillips
v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007)).
144
See PNC Bank, N.A. v. Akshar Petroleum, Inc., No. 13-436, 2014 WL 1230689, at *6 (Mar. 25, 2014)
(applying Atlantic Marine only after determining that the “causes of action in this lawsuit are governed by valid,
mandatory, forum-selection clauses”).
145
United Am. Healthcare Corp. v. Backs, —F. Supp. 2d—, No. 13-13570, 2014 WL 555194, at *7 (E.D. Mich.
Feb. 12, 2014).
27
permissive to be persuasive, because the Fifth Circuit recognizes the distinction between mandatory
and permissive forum selection clauses and provides guidance on how to interpret such clauses.
Moreover, in Atlantic Marine, the Supreme Court emphasized the importance of enforcing the terms
of the parties’ contract. Specifically, it reasoned that “courts should not unnecessarily disrupt the
parties’ settled expectations” and that “‘the interest of justice’ is served by holding parties to their
bargain.”146 Under the framework in Atlantic Marine, a forum selection clause has “controlling
weight in all but the most exceptional cases.”147 Giving a permissive clause controlling weight,
however, would be antithetical to “holding parties to their bargain.” Essentially, a permissive clause
would be transformed into a mandatory clause anytime a defendant raised the doctrine of forum non
conveniens. This situation would surely disrupt the parties’ “settled expectations” that they were
merely consenting to jurisdiction, rather than choosing one forum to the exclusion of all others.
D.
Analysis
1.
Motion to Dismiss for Forum Non Conveniens
Having determined that Atlantic Marine only applies to a mandatory forum selection clause,
the Court must now evaluate whether the clause in the Landfill Time Contract is mandatory or
permissive. The Landfill Time Contract provides:
Jurisdiction: This Agreement and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State of Louisiana and the
parties hereto submit to the jurisdiction of the 24th Judicial District for the Parish of
Jefferson, State of Louisiana. The parties hereby waiving [sic] any and all plea[s] of
lack of jurisdiction or improper venue.148
146
Atlantic Marine, 134 S. Ct. at 583.
147
Id. at 579.
148
Rec. Doc. 8-1 at p. 2 (second alteration in original).
28
As the Fifth Circuit explained in City of New Orleans “[a] party’s consent to jurisdiction in
one forum does not necessarily waive its right to have an action heard in another.”149 Rather, “[f]or
a forum selection clause to be exclusive, it must go beyond establishing that a particular forum will
have jurisdiction and must clearly demonstrate the parties’ intent to make that jurisdiction
exclusive.”150 By agreeing that they “submit to the jurisdiction of the 24th Judicial District,” Waste
Management and Jefferson Parish have only consented to jurisdiction in the 24th Judicial District,
and have not “clearly demonstrate[d]” any intent to deprive all other possible forums of jurisdiction.
Accordingly, the Court finds that the forum selection clause in the Landfill Time Contract is
permissive, and thus the Atlantic Marine framework does not control.
If Atlantic Marine does not control, the question becomes what is the appropriate framework
to apply. At this juncture, the Court is cognizant of Sinochem’s observation that “[t]he common-law
doctrine of forum non conveniens ‘has continuing application in federal courts only in cases where
the alternative forum is abroad,’ and perhaps in the rare instances where a state or territorial court
serves litigational convenience best.”151 This statement limiting forum non conveniens to “rare
instances” in the domestic context, however, appears to be in tension with Atlantic Marine, which
held that “the appropriate way to enforce a forum-selection clause pointing to a state or foreign
forum is through the doctrine of forum non conveniens.”152 It may be that the extent to which forum
149
City of New Orleans, 376 F.3d at 504.
150
Id.
151
Sinochem, 549 U.S. at 430 (emphasis added) (citations and alterations omitted) (quoting Am. Dredging, 510
U.S. at 449 n.2); see also Quackenbush, 517 U.S. at 722 (1996) (“[T]o the extent we have continued to recognize that
federal courts have the power to dismiss damages actions under the common-law forum non conveniens doctrine, we
have done so only in ‘cases where the alternative forum is abroad.’” (quoting Am. Dredging, 510 U.S. at 449 n.2)).
152
Atlantic Marine, 134 S. Ct. at 580.
29
non conveniens applies outside the specific context contemplated in Atlantic Marine—in which there
is a mandatory forum selection clause—is an open question.
Assuming that forum non conveniens may still apply in the absence of a mandatory forum
selection clause, however, the Court applies the traditional four-part forum non conveniens analysis
discussed above. As the Fifth Circuit explained in Gonzalez v. Chrysler Corp.:
First, the district court must assess whether an alternative forum is available. An
alternative forum is available if the entire case and all parties can come within the
jurisdiction of that forum. Second, the district court must decide if the alternative
forum is adequate. An alternative forum is adequate if the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court. If the district court decides
that an alternative forum is both available and adequate, it next must weigh various
private interest factors. If consideration of these private interest factors counsels
against dismissal, the district court moves to the fourth consideration in the analysis.
At this stage, the district court must weigh numerous public interest factors. If these
factors weigh in the moving party’s favor, the district court may dismiss the case.153
In this case, the proposed alternative154 forum is the 24th Judicial District for the Parish of
Jefferson, State of Louisiana. Pursuant to Gonzalez, the Court first considers whether the 24th
Judicial District would be an “available” forum—that is, whether “the entire case and all parties can
come within the jurisdiction of that forum.”155 Pursuant to the permissive forum selection clause in
the Landfill Time Contract, the parties have already consented to the jurisdiction of 24th Judicial
District, and thus it is an available forum. Second, the Court evaluates whether the 24th Judicial
District would be an “adequate” forum; it is considered adequate “if the parties will not be deprived
of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might
153
Gonzalez, 301 F.3d at 379–80 (internal citations and quotation marks omitted).
154
In this context, “alternative” means an alternative to the forum in which plaintiff chose to file suit—not an
alternative to the forum specified in the forum selection clause.
155
Id. at 379 (internal quotation marks omitted).
30
receive in an American court.”156 The 24th Judicial District is an American court, and it will provide
a remedy for breach of contract and treat the parties fairly.157 Thus, it is an adequate forum.
Having determined that the 24th Judicial District is an available and adequate forum, the
Court turns to the private interest factors. The “private interest” factors to be evaluated include:
(i) the relative ease of access to sources of proof; (ii) availability of compulsory
process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; (iii) possibility of view of the premises, if view would be appropriate to
the action; (iv) all other practical problems that make trial of a case easy, expeditious
and inexpensive, enforceability of judgment; and whether the plaintiff has sought to
“vex,” “harass,” or “oppress” the defendant.158
With respect to the sources of proof, courts have determined that this factor will weigh in
favor of dismissal where the relevant documents are found in a different country and written in a
foreign language. For example, in In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India
in December, 1984, a district court in the Southern District of New York determined that the sources
of proof factor weighed heavily in favor of dismissal where many of the documents were located in
India and were written in Hindi, which an American court would need translated.159 There are no
similar considerations present in the pending case, and thus, the sources-of-proof factor appears to
be neutral.
156
Id. at 379–80 (internal quotation marks omitted).
157
The Court notes that perhaps it could be considered unfair to deprive Waste Management of a federal forum,
which is provided for by 28 U.S.C. § 1332. As the Fifth Circuit has explained, “the primary underlying purpose of the
diversity statute [is] to provide a separate forum for out-of-state citizens to protect those citizens against the prejudices
of local courts and local juries by making available to them the benefits and safeguards of the federal courts.” Chick Kam
Choo v. Exxon Corp., 764 F.2d 1148, 1153 (5th Cir. 1985).
158
DTEX, 508 F.3d at 794 (quoting Gulf Oil Corp., 330 U.S. at 508) (alterations omitted).
159
See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F. Supp. 842,
858–59 (S.D.N.Y. 1986).
31
The second factor—the availability of compulsory process for attendance of unwilling
witnesses and the cost of obtaining attendance of willing witnesses—also appears neutral.
Compulsory process is equally available in the 24th Judicial District and the Eastern District of
Louisiana. Further, any difference in the cost of obtaining attendance of willing witnesses is de
minimis, as the courthouse for the Eastern District of Louisiana is in Orleans Parish, which is
adjacent to Jefferson Parish.
The third factor is the possibility of viewing the premises. It is unclear whether there is any
need to view the landfill at issue in this case. Regardless, the landfill is easily accessible from the
courthouse for the Eastern District of Louisiana, which, as just noted, is located in neighboring
Orleans Parish. Thus, this factor is neutral.
The fourth factor examines all other practical problems that make trial of a case easy,
expeditious and inexpensive, enforceability of judgment, and whether the plaintiff has sought to
“vex,” “harass,” or “oppress” the defendant. This factor appears to be neutral or may weigh slightly
in favor of litigating in the Eastern District of Louisiana. There are no practical problems created
by litigating at a courthouse in Orleans Parish as opposed to one Jefferson Parish. As for the
enforceability of judgment, in light of Louisiana’s anti-seizure provisions, Waste Management may
be able to more readily enforce a judgment issued by this Court as opposed to the 24th Judicial
District.160
160
In this case, Waste Management is suing Jefferson Parish, a political subdivision of the state of Louisiana.
See La. R.S. § 31:5102. The Louisiana state constitution provides that “no public property or public funds shall be
subject to seizure” and that “[n]o judgment against the state, a state agency, or a political subdivision shall be exigible,
payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which
the judgment is rendered.” La. Const. art. 12, § 10(C); see also La. R.S. § 13:5109(B)(2) (“Any judgment rendered in
any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the
plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose
by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose
by the named political subdivision, if the suit was filed against a political subdivision.”). However, the Fifth Circuit has
32
Having determined that all of the private interest factors are neutral or weigh slightly in favor
of the Eastern District of Louisiana, the Court finally turns to the public interest factors, which are:
(i) the administrative difficulties flowing from court congestion; (ii) the local interest
in having localized controversies resolved at home; (iii) the interest in having the
trial of a diversity case in a forum that is familiar with the law that must govern the
action; (iv) the avoidance of unnecessary problems in conflicts of law, or in
application of foreign law; and (v) the unfairness of burdening citizens in an
unrelated forum with jury duty.
The first factor—the administrative difficulties flowing from court congestion—appears to
be neutral. There is no indication that the Eastern District of Louisiana is more congested than the
24th Judicial District. The second factor—the local interest in having localized controversies resolved
at home—is also neutral. This dispute involves a contract governing a landfill in Jefferson Parish,
which is located within the Eastern District of Louisiana. The third and fourth factors—the interest
in having the trial of a diversity case in a forum that is familiar with the law that must govern the
action, and the avoidance of unnecessary problems in conflicts of law, or in application of foreign
law—is neutral as the Court is very familiar with Louisiana law and routinely applies it when
exercising its diversity jurisdiction. Finally, the fifth factor—the unfairness of burdening citizens
in an unrelated forum with jury duty—is neutral because, as just noted, this dispute involves a
contract governing a landfill located within the Eastern District of Louisiana.
In sum, the private factors are either neutral or weigh slightly in favor of the Eastern District
of Louisiana, and all of the public factors are neutral. However, as the Fifth Circuit instructed in
held that “when there is a federal interest in the remedy, we may trump a state’s anti-seizure provision and enforce a
money judgment against a public entity.” Freeman Decorating Co. v. Encuentro Las Americas Trade Corp., 352 F.
App’x 921, 923 (5th Cir. 2009) (citing Specialty Healthcare Mgmt., Inc. v. St. Mary Parish Hosp., 220 F.3d 650, 653
(5th Cir. 2000)). For example, the Fifth Circuit has found a federal interest where a plaintiff in civil rights action against
the state seeks attorneys’ fees pursuant to the Civil Rights Attorneys’ Fees Act of 1976. See Gary W. v. Louisiana, 622
F.2d 804 (5th Cir. 1980); Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980). The Fifth Circuit “has also recognized a
sufficient federal interest when a state makes abundantly clear that it will never satisfy the judgment.” Freeman, 352 F.
App’x at 923 (citing Gates, 616 F.2d at 1271–72).
33
DTEX, “[o]rdinarily a strong favorable presumption is applied to the plaintiff’s choice of forum,”161
and “[u]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should
rarely be disturbed.” Considering that the private factors are neutral or weigh slightly in favor of the
Eastern District of Louisiana, and that all of public factors are neutral, Jefferson Parish has not
overcome the “strong favorable presumption” in favor of Waste Management’s choice of forum.
2.
Motion to Dismiss Pursuant for Failure to State a Claim
In the alternative, Jefferson Parish maintains that “this matter should still be dismissed
pursuant to Fed. R. Civ. Pro. 12(b)(6).”162 According to Jefferson Parish, “dismissal is proper
pursuant to Fed. R. Civ. P. 12(b)(6) because the Plaintiffs’ [sic] Complaint, based on and
incorporating by reference the Landfill Time Contract, taken as true, contains an affirmative defense
on its face via the forum-selection clause, and therefore fails to state a claim upon which relief can
be granted.”163
As discussed above, the forum selection clause in the Landfill Time Contract is permissive,
not mandatory. Although Waste Management consented to the jurisdiction of the 24th Judicial
District, it did not agree that the 24th Judicial District would be the exclusive forum for resolving
disputes. Accordingly, the forum selection clause does not preclude Waste Management from
obtaining relief in this Court, and dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is
unwarranted.
161
DTEX, LLC, 508 F.3d at 795.
162
Rec. Doc. 8-1 at p. 11.
163
Id. at p. 13.
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IV. Conclusion
As discussed above, the Court finds that Atlantic Marine applies only where the parties agree
to a mandatory forum selection clause. In this case, however, the Landfill Time Contract between
Jefferson Parish and Waste Management contains a permissive forum selection clause. Thus, the
Court has engaged in the traditional forum non conveniens analysis, in which a “strong favorable
presumption” applies to Waste Management’s choice of forum. Although the 24th Judicial District
for the Parish of Jefferson, State of Louisiana is an “available” and “adequate” forum, the private
factors are either neutral or weigh slightly in favor of the Eastern District of Louisiana, and all of
the public factors are neutral. Thus, the Court will not disturb the plaintiff’s choice of forum.
Accordingly,
IT IS HEREBY ORDERED that Jefferson Parish’s “Motion to Dismiss”164 is DENIED.
NEW ORLEANS, LOUISIANA, this ___ day of September, 2014.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
164
Rec. Doc. 8.
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