Al Copeland Investments, L.L.C., et al v. First Specialty Insurance Corporation

Filing 51

ORDER: IT IS HEREBY ORDERED that Defendant's 11 Motion to Dismiss is GRANTED. IT IS FURTHER ORDERED that the instant action be DISMISSED WITHOUT PREJUDICE. Signed by Judge Nannette Jolivette Brown on 6/29/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AL COPELAND INVESTMENTS, LLC, et al.

CIVIL ACTION

VERSUS

NO. 16-16346

FIRST SPECIALTY INSURANCE CORPORATION

SECTION: “G”(5)

ORDER
Pending before the Court is Defendant First Specialty Insurance Corporation’s
(“Defendant”) “Motion to Dismiss” in which Defendant argues that the instant action should be
dismissed without prejudice due to the existence of a valid forum selection clause contained in the
insurance policy at issue. 1 Having considered the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court will grant the motion and dismiss the
instant action without prejudice.
I. Background
This matter concerns an insurance dispute. Plaintiffs Al Copeland Investments, LLC and
Diversified Foods & Seasonings, LLC (collectively “Plaintiffs”) allege that they suffered damages
to two properties and that those damages are covered under an insurance policy (“the Policy”)
issued by Defendant.2 Plaintiffs allege that Defendant failed to honor their claim for the property
damage, and they bring a claim for breach of contract based on Defendant’s denial of coverage.3
Plaintiffs also seek penalties and attorneys’ fees arising out of Defendant’s alleged breach of the

1

Rec. Doc. 11.

2

Rec. Doc. 5 at 3.

3

Id. at 5.

1

Policy.4
Plaintiffs filed the original complaint in this action on November 14, 2016.5 With leave of
Court, Plaintiffs filed an amended complaint on November 18, 2016, to properly allege the
citizenship of Plaintiffs.6 On January 9, 2017, Defendant filed the instant motion to dismiss.7 On
January 24, 2017, Plaintiffs filed an opposition to the motion.8 On February 1, 2017, with leave
of Court, Defendant filed a reply in further support of the motion.9 On March 29, 2017, with leave
of Court, Plaintiffs filed a supplemental memorandum in opposition to the motion.10 With leave
of Court, Defendant filed a supplemental memorandum in further support of the motion on April
7, 2017.11
II. Parties’ Arguments
A.

Defendant’s Arguments in Support of the Motion to Dismiss
In support of its motion to dismiss, Defendant argues that the Policy contains an

unambiguous forum selection clause designating the state of New York as the exclusive
jurisdiction to hear any disputes between the parties.12 Defendant asserts that the forum selection
clause was included in the original policy issued by Defendant to Plaintiffs, as well as the most

4

Id. at 5–6.

5

Rec. Doc. 1.

6

Rec. Doc. 5.

7

Rec. Doc. 11.

8

Rec. Doc. 16.

9

Rec. Doc. 20.

10

Rec. Doc. 25.

11

Rec. Doc. 33.

12

Rec. Doc. 11-1 at 5.

2

recent Policy.13 Thus, Defendant asserts that Plaintiffs filed the instant suit with full knowledge of
the forum selection clause.14
Defendant asserts that when a party seeks to enforce a forum selection clause that requires
that an action be brought in a particular state court, the appropriate way to enforce such a clause is
through the doctrine of forum non conveniens. 15 Defendant further asserts that under such an
analysis, the Court should first consider whether the claims asserted in the complaint fall within
the scope of a valid forum selection clause.16 Once the validity of the forum selection clause is
established, Defendant avers, dismissal is appropriate unless the plaintiff shows extraordinary
circumstances demonstrating that public interest factors overwhelmingly disfavor dismissal.17
Defendant contends that in this case, dismissal is appropriate because it argues that the
forum selection clause is valid and that Plaintiffs cannot show that the clause is unreasonable.18
According to Defendant, such unreasonableness exists where: (1) the forum selection clause was
the product of fraud or overreaching; (2) the party seeking to escape enforcement will be deprived
of his day in court because of the inconvenience or unfairness of the selected forum; (3) the
fundamental unfairness of the chosen law will deprive the plaintiff of a remedy; or (4) enforcement
of the forum selection clause would contravene a strong public policy of the forum state.19

13

Id.

14

Id.

15

Id. at 6 (citing Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 573–

74 (2013)).
16

Id.

17

Id.

18

Id.

19

Id. at 7-8 (citing Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997)).

3

Defendant asserts that the forum selection clause was the product of an arm’s length
negotiation between sophisticated parties and not the product of fraud or overreaching. 20
Defendant next argues that the fact that Plaintiffs might be burdened with travel inconvenience or
expense in litigating the instant dispute in New York does not preclude enforcement of the forum
selection clause.21 Defendant contends that Plaintiffs would be neither deprived of their day in
court nor a remedy by enforcing the forum selection clause and requiring the dispute to be litigated
in New York.22
Next, Defendant argues that enforcement of the forum selection clause would not
contravene a strong public policy of Louisiana.23 According to Defendant, Louisiana law approves
of and encourages forum selection clauses.24 Defendant next notes that Plaintiffs cite to Louisiana
Revised Statute § 22:868 for the apparent argument that the statute precludes enforcement of the
Policy’s forum selection clause.25 According to Defendant, the Louisiana Supreme Court has
recognized that the state legislature has enacted three statutes to declare forum selection clauses
unenforceable and against public policy in very limited circumstances, none of which are present
here.26 Defendant further asserts that none of the cases interpreting Section 22:868 have found it

20

Id. at 8.

21

Id. at 9 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)).

22

Id.

23

Id. at 10.

24

Id. (citing Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 148 So.3d 871, 881 (La.

25

Id. at 11.

26

Id. at 11–12 (citing Shelter Mut. Ins. Co., 148 So.3d at 881).

2014)).

4

to limit the application of forum selection clauses.27 Rather, Defendant avers, the statue has been
viewed as a limitation on arbitration clauses.28
Rather than invalidating forum selection clauses, Defendant asserts that Section 22:868
bars insurance contracts attempting to deprive Louisiana courts of jurisdiction.29 According to
Defendant, the Supreme Court has rejected the idea that a forum selection clause deprives a court
of jurisdiction. 30 Defendant argues that a forum selection clause does not deprive a court of
jurisdiction and instead asks a court to exercise its jurisdiction to enforce the parties’ contract.31
Moreover, even if the law was unclear regarding whether a forum selection clause denies a court
of jurisdiction, Defendant notes that Plaintiffs filed this action in federal court, rather than state
court, and that enforcement of the forum selection clause would have no effect on the courts of
Louisiana.32
Next, Defendant asserts that the forum selection clause is mandatory. 33 According to
Defendant, the language of the forum selection clause is almost identical to language that the Fifth
Circuit has interpreted to be mandatory.34 Defendant argues that where, as here, the parties agreed
to a mandatory forum selection clause, a court determining whether to dismiss a case under a forum

27

Id. at 13.

28

Id. at 13–14.

29

Id. at 14.

30

Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972)).

31

Id. at 15.

32

Id.

33

Id.

34

Id. at 16.

5

non conveniens analysis is to give the plaintiff’s choice of forum no weight and is not to consider
the parties’ private interests.35 According to Defendant, the relevant public interest factors are: (1)
the administrative difficulties flowing from court congestion; (2) the local interest in having
localized interests decided at home; (3) the familiarity of the forum with the law that will govern
the case; and (4) the avoidance of unnecessary problems of conflict of laws or the application of
foreign law.36
Defendant contends that the public interest factors weigh in favor of dismissal because: (1)
adjudication in New York will alleviate Louisiana federal court congestion; (2) although the
property at issue is located in Louisiana, the dispute is not localized, as the Policy covers properties
in multiple states throughout the United States, was issued in Georgia by Defendant, a Missouri
Corporation with its principal place of business in Kansas, and specifies that New York law will
apply; and (3) the Policy contains a specific choice of law clause stating that New York law
governs any disputes, and New York courts have better familiarity with New York law.37 Thus,
Defendant argues, the Court should dismiss the instant action without prejudice under a forum non
conveniens analysis.38
B.

Plaintiffs’ Arguments in Opposition to the Motion to Dismiss
In opposition to the motion to dismiss, Plaintiffs argue that Louisiana Revised

Statute § 22:868(A)(2) prohibits the Policy’s forum selection clause and choice of law.39 Plaintiffs

35

Id. at 17 (citing Atl. Marine Constr., 134 S.Ct. at 582).

36

Id. at 18.

37

Id. at 18–19.

38

Id. at 20.

39

Rec. Doc. 16 at 4.

6

point to three Louisiana courts of appeal decisions in which the courts evaluated a former version
of the statute and found that insurance policies could not deprive Louisiana courts of jurisdiction
over disputes.40 Plaintiffs also assert that Louisiana courts have held that a Louisiana insurance
policy cannot mandate the application of another state’s law.41 Plaintiffs argue that the Louisiana
Legislature and Louisiana courts are concerned about the relationship between an insured and an
insurer and that the parameters of the bargaining arena in such relationships are thus “carefully
patrolled.”42
Plaintiffs acknowledge that the Louisiana Supreme Court has found that forum selection
clauses are not per se violative of public policy in Louisiana.43 However, Plaintiffs argue that the
case relied upon by Defendant, Shelter Mutual Insurance Company v. Rimkus Consulting Group,
Inc. of Louisiana, is not dispositive, because the Louisiana Supreme Court did not present an
exhaustive list of statutory prohibitions on forum selection clauses, but rather simply discussed
three such statutes by way of example.44 Here, Plaintiffs argue, there is a specific statute that
declares that the forum selection clause in the Policy is void, and the clause should therefore not
be enforced.45
Next, Plaintiffs assert that when a court addresses a valid forum selection clause, the court

40

Id. at 4–6 (citing Lawrence v. Cont’l Ins. Co., 199 So.2d 398 (La. Ct. App. 1967); Bonura v. United
Bankers Life Ins. Co., 509 So.2d 8 (La. Ct. App. 1987); Krueger v. Tabor, 546 So.2d 1317 (La. Ct. App. 1989)).
41

Id. at 6 (citing Barnewold v. Life Ins. Co. of N. Am., 633 F.Supp. 432 (E.D. La. 1986); Casey v. Prudential
Life Ins. Co. of Am., 360 So.2d 1386 (La. Ct. App. 1978); Kadan v. Commercial Ins. Co., 800 F.Supp. 1392 (E.D. La.
1992)).
42

Id. at 7-8 (citing 15 La. Civ. L. Treatise, Ins. Law & Prac., section 1:3 (4th ed.)).

43

Id. at 8 (citing Shelter Mut. Ins. Co., 148 So.3d at 871).

44

Id.

45

Id. at 9.

7

can refuse to enforce such a clause based on public interest factors.46 Here, Plaintiffs assert that
these factors weigh against enforcement of the clause, because: (1) this case has no connection to
the State of New York except that the insurer’s parent company “has an address there,” and the
incident occurred in Louisiana, where the witnesses and majority of relevant documents are
located; (2) a companion case is pending before this Court in which Plaintiffs sue another insurer,
Continental Casualty Company, with regard to the same incident but for coverage under a different
policy; (3) dismissal or transfer of the case would prevent or unreasonably delay consolidation of
the two related cases; and (4) witnesses and evidence will be more readily available in Louisiana.47
Plaintiffs further argue that Section 22:868 requires that Louisiana law apply to the instant
dispute and that Louisiana courts are more familiar with Louisiana law.48 Plaintiffs contend that a
ruling in Defendant’s favor would “impact the rights of thousands of Louisiana’s insureds” if
insurers are allowed to bypass the requirements of Section 22:868 and “dictate a different forum
and another state’s law.”49 Lastly, Plaintiffs argue that Defendant’s argument regarding the fact
that Plaintiffs originally filed this action in this Court, rather than state court, is misguided, because
the action could have been removed even if Plaintiffs had filed the action in state court.50
C.

Defendant’s Reply in Further Support of the Motion to Dismiss
In reply, Defendant asserts that Plaintiffs’ sole basis for their claim that the forum selection

clause is invalid is their assertion that it violates public policy as reflected in Louisiana Revised

46

Id. at 10 (citing Atl. Marine Const. Co., 134 S.Ct. at 568).

47

Id. at 10–11.

48

Id. at 11.

49

Id.

50

Id.

8

Statute § 22:868. 51 Defendant contends that this argument fails, because under principles of
contract law, the courts of Louisiana are not deprived of jurisdiction by a valid forum selection
clause.52 Defendant again argues that Section 22:868 and its predecessor did not invalidate forum
selection clauses, but rather only bar insurance contract provisions that deprive Louisiana state
courts of jurisdiction of an action against the insurer.53
Defendant next argues that none of the case authority cited by Plaintiffs is relevant, because
none of the cases cited by Plaintiffs involve a forum selection clause.54 Rather, Defendant asserts
that each of the cases cited by Plaintiffs involved situations where a Louisiana state court’s
jurisdiction was questioned. 55 Defendant further argues that Plaintiffs conflate choice of law
provisions with forum selection clauses.56 However, Defendant contends that the enforceability
of a choice of law provision is not the question presented by its motion to dismiss and is irrelevant
to the issue of whether the forum selection clause is valid.57
Finally, Defendant argues that Plaintiffs’ interests in consolidating their cases before the
Court and convenience in litigating the instant action are private interest factors, which are not to
be considered under the altered forum non conveniens analysis utilized to assess a valid forum

51

Rec. Doc. 20 at 2.

52

Id.

53

Id. at 3.

54

Id. at 4.

55

Id. at 5–6.

56

Id. at 6.

57

Id.

9

selection clause.58 Moreover, Defendant contends that Plaintiffs’ other action against Continental
Casualty Company involves different questions of law and fact and would not be appropriately
consolidated with the instant action.59 Defendants also note that even if private interest factors
were to be considered and consolidation was proper, Plaintiffs made the choice to bring two
separate federal lawsuits and should not be allowed to propose consolidation as a basis for avoiding
the forum selection clause.60
D.

Plaintiffs’ Supplemental Memorandum in Further Opposition to the Motion to Dismiss
In a supplemental memorandum in further opposition to the motion to dismiss, Plaintiffs

aver that on March 27, 2017, Defendant’s counsel provided a copy of a declaratory judgment suit
brought by Defendant against Plaintiffs in state court in New York addressing the same issues and
dispute before this Court.61 According to Plaintiffs, the suit in New York was filed on January 17,
2017, but Defendant did not advise Plaintiffs until March 27, 2017, and has “never advised this
Court of its pending lawsuit in New York State Court regarding its efforts to adjudicate this dispute
in New York.”62 Plaintiffs contend that Defendant has commenced the action in New York to
cause additional costs for Plaintiffs and that the Court should deny Defendant’s motion to
dismiss.63

58

Id. at 7.

59

Id.

60

Id. at 8.

61

Rec. Doc. 25 at 2.

62

Id.

63

Id.

10

E.

Defendant’s Supplemental Memorandum in Further Support of the Motion to Dismiss
In its supplemental memorandum, Defendant asserts that it proposed an agreement

whereby Plaintiffs would not be required to respond to its complaint for declaratory judgment in
New York until this Court rules on its motion to dismiss. 64 Defendant asserts that there was
nothing inappropriate about the filing of the declaratory judgment in New York. 65 Rather,
Defendant asserts that if the Court grants its motion to dismiss, there would be nothing to prevent
Plaintiffs from filing another lawsuit in a forum outside New York in violation of the forum
selection clause. 66 Thus, Defendant argues, if the motion to dismiss is granted, the pending
declaratory judgment action in New York “provides assurance” that the dispute will be resolved
in New York in accordance with the forum selection clause in the Policy.67
III. Law and Analysis
A.

Legal Standard
In Atlantic Marine Construction Co., Inc. v. United States District for the Western District

of Texas, the Supreme Court held that a forum selection clause does not render a different venue
“wrong” or “improper” within the meaning of Federal Rule of Civil Procedure 12(b)(3) or 28
U.S.C. § 1406.68 Rather, a forum selection clause pointing to a particular federal district should
be enforced through a motion to transfer under 28 U.S.C. § 1404.69 The Court further explained

64

Rec. Doc. 33 at 2.

65

Id.

66

Id.

67

Id.

68

Atlantic Marine Construction Co. v. United States District Court, 134 S.Ct. 568, 577 (2013).

69

Id. at 579.

11

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.”70 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.”71 Thus, where, as here, transfer of an action
is impossible because the selected forum is a state or foreign court, a motion to dismiss an action
pursuant to forum non conveniens is an appropriate method for seeking the enforcement of a forum
selection clause.72 However, the Fifth Circuit has held that the United States Supreme Court’s
holding in Atlantic Marine that forum selection clauses should be enforced absent exceptional
circumstances does not apply to permissive forum selection clauses.73 Moreover, the Fifth Circuit
has instructed that only a mandatory forum selection clause justifies dismissal.74
Usually, a court applying the doctrine of forum non conveniens must determine whether
there is an adequate alternative forum and, if so, determine which forum is best-suited to the
litigation by considering “a variety of private- and public-interest factors and giving deference to
the plaintiff’s choice of forum.”75 However, the existence of a mandatory, valid forum selection

70

Id. at 580.

71
Id. See also Waste Mgmt. of Louisiana, LLC v. Jefferson Parish, No. 13-6764, 2014 WL 5393362, at * 2
(E.D. La. Oct. 22, 2014) (Brown, J.).
72

See, e.g., Wellogix, Inc. v. SAP America, Inc., 648 F. App’x 398 (5th Cir. 2016) (finding that district court
did not abuse discretion by dismissing a case based on a forum selection clause specifying a foreign court). See also
§ 1352 Motions to Dismiss—Improper Venue, 5B Fed. Prac. & Proc. Civ. § 1352 (3d ed.) (“If transfer is impossible,
for instance when the selected forum is arbitration, state court or a foreign court, then a dismissal through forum non
conveniens is the appropriate method for dealing with a valid forum-selection clause.”).
73

Waste Mgmt. of Louisiana, LLC v. Jefferson Parish, 594 F. App’x 820 (5th Cir. 2014) (affirming this
Court’s determination that the Supreme Court’s holding in Atlantic Marine does not apply to permissive forum
selection clauses).
74

See Weber v. PACT XPP, Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016) (“Only mandatory clauses justify
transfer or dismissal.”) (internal citation omitted).
75

Barnett v. DynCorp Int'l, L.L.C., 831 F.3d 296, 300 (5th Cir. 2016) (quoting Atlantic Marine Construction

12

clause simplifies the analysis in two ways: (1) the “plaintiff’s choice of forum merits no weight”
because, by contracting for a specific forum, “the plaintiff has effectively exercised its ‘venue
privilege’ before a dispute arises;”76 and (2) the private-interest factors “weigh entirely in favor of
the preselected forum,” so that the “district court may consider arguments about public-interest
factors only.”77 Thus, “a valid forum-selection clause controls the forum non conveniens inquiry
‘[i]n all but the most unusual cases.’”78 The Fifth Circuit has held that this “harmonizes” with the
Supreme Court’s “guidance that contractually selected forums often ‘figure[] centrally in the
parties' negotiations’ and become part of those parties’ ‘settled expectations’—so if a plaintiff
disregards such a contractual commitment, ‘dismissal . . . work[s] no injustice.’”79
As the Fifth Circuit has recently recognized, neither the Supreme Court nor the Fifth Circuit
has stated “what source of law governs the validity of a forum-selection clause.”80 However, under
Fifth Circuit precedent, even in diversity cases, federal law governs the “enforceability” of forum
selection clauses, and the Fifth Circuit has noted that it does not appear that it has drawn a
“distinction between validity and enforceability, instead seeming to treat those words as synonyms
in the forum-selection clause context.”81 In this circuit, the law governing the enforceability of a

Co. v. United States District Court, 134 S.Ct. 568 (2013)) (internal quotation marks omitted) (citing DTEX, LLC v.
BBVA Bancomer, S.A., 508 F.3d 785, 794–95 (5th Cir. 2007)).
76

Id. (citing Atl. Marine Const. Co., 134 S.Ct. at 581-82).

77

Id. (citing Atl. Marine Const. Co., 134 S.Ct. at 583).

78

Id.

79

Id.

80

Id.

81
Id. (citing Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997)). See also Weber v. PACT XPP
Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016); Int'l Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 114 (5th Cir.
1996) (holding that forum-selection clauses “are prima facie valid and should be enforced unless enforcement is shown
by the resisting party to be ‘unreasonable’ under the circumstances)”.

13

forum selection clause requires a party attacking a forum selection clause to “overcome a
presumption of enforceability” by showing that the clause is “unreasonable under the
circumstances,” because: “(1) the incorporation of the forum selection clause into the agreement
was the product of fraud or overreaching; (2) the party seeking to escape enforcement ‘will for all
practical purposes be deprived of his day in court’ because of the grave inconvenience or
unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the
plaintiff of a remedy; or (4) enforcement of the forum selection clause would contravene a strong
public policy of the forum state.”82
Thus, the Court must first determine whether the forum selection clause is mandatory and
then determine whether the forum selection clause is valid or whether Plaintiffs have overcome
the “presumption of enforceability” by demonstrating that the forum selection clause is
“unreasonable under the circumstances.”83 If the Court finds that the forum selection clause is
mandatory and valid, the Court must then determine whether dismissal is appropriate under a
modified forum non conveniens analysis, considering only the public interest factors and giving
Plaintiffs’ choice of forum no weight.84
C.

Analysis
The forum selection clause in the Policy reads as follows:
The laws of the State of New York, without regard to any conflict of laws
rules that would cause the application of the laws of any other jurisdiction,
shall govern the construction, effect and interpretation of this insurance
agreement.

82

Barnett, 831 F.3d at 301 (citing Haynsworth, 121 F.3d at 963).

83

Id.

84

Id. at 300.

14

The parties irrevocably submit to the exclusive jurisdiction of the Courts
of the State of New York and to the extent permitted by law the parties
expressly waive all rights to challenge or otherwise limit such
jurisdiction.85
Defendant argues that the instant action should be dismissed, because the forum selection
clause is mandatory and valid and is not unreasonable under the circumstances. 86 Moreover,
Defendant contends that the public interest factors considered under a forum non conveniens
analysis weigh in favor of dismissal.87 In opposition, Plaintiffs contend that the forum selection
clause is invalid and unreasonable under the circumstances, because enforcement of the forum
selection clause would contravene a strong public policy of Louisiana.88 Specifically, Plaintiffs
contend that the Louisiana Legislature declared the Policy’s forum selection clause void by
enacting Louisiana Revised Statute § 22:868. 89 Plaintiffs further contend that the forum non
conveniens factors do not weigh in favor of dismissal in this case.90 The Court will address the
parties’ arguments in turn.
1.

Whether the Forum Selection Clause is Mandatory

As an initial matter, the Court notes that the parties do not appear to dispute that the Policy’s
forum selection clause is mandatory. However, as noted supra, the Fifth Circuit has held that the
United States Supreme Court’s holding in Atlantic Marine that forum selection clauses should be

85

Rec. Doc. 11-3 at 11.

86

Rec. Doc. 11-1 at 8.

87

Id.

88

Rec. Doc. 16 at 9.

89

Id.

90

Id. at 10.

15

enforced absent exceptional circumstances does not apply to permissive forum selection clauses.91
Moreover, the Fifth Circuit has instructed that only a mandatory forum selection clause justifies
dismissal.92 Thus, the Court must first determine whether the forum selection at issue is mandatory
or permissive. A forum selection clause is mandatory “only if it contains clear language specifying
that litigation must occur in the specified forum-and language indicating that courts of a particular
place ‘shall have jurisdiction’ (or similar) is insufficient” to make a forum selection clause
mandatory.93 Here, the Policy’s forum selection clause states that the parties “irrevocably submit
to the exclusive jurisdiction of the Court of the State of New York and to the extent permitted by
law the parties expressly waive all rights to challenge or otherwise limit such jurisdiction.”94
Based on the clear language in the forum selection clause stating that the parties submit to the
exclusive jurisdiction of the Court of the State of New York, the Court finds that the Policy’s
forum selection clause is mandatory.95
2.

Whether the Forum Selection Clause is Valid and Enforceable

As the Fifth Circuit has made clear, after the Court has determined that a forum selection
clause is mandatory, it must then determine whether the forum selection clause is valid and

91

Waste Mgmt. of Louisiana, LLC v. Jefferson Parish, 594 F. App’x 820 (5th Cir. 2014) (affirming this
Court’s determination that the Supreme Court’s holding in Atlantic Marine does not apply to permissive forum
selection clauses).
92

See Weber v. PACT XPP, Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016) (“Only mandatory clauses justify
transfer or dismissal.”) (internal citation omitted).
93

Id. (internal citation omitted).

94

Rec. Doc. 11-3 at 11 (emphasis added).

95

See Waste Mgmt. of Louisiana, LLC v. Jefferson Parish, 48 F.Supp.3d 894, 911 (E.D. La. 2014) (Brown,
J.), aff’d by Waste Mgmt. of Louisiana, LLC v. Jefferson Parish, 594 F. App’x 820 (5th Cir. 2014) (“[F]or a forum
selection clause to be exclusive, it must . . . clearly demonstrate the parties’ intent to make that jurisdiction exclusive.”)
(internal quotations and citation omitted).

16

enforceable.96 As noted supra, even in diversity cases, federal law governs the enforceability of
forum selection clauses.97 In the Fifth Circuit, the law governing the enforceability of a forum
selection clause requires a party attacking a forum selection clause to “overcome a presumption of
enforceability” by showing that the forum selection clause is “unreasonable under the
circumstances,” because: “(1) the incorporation of the forum selection clause into the agreement
was the product of fraud or overreaching; (2) the party seeking to escape enforcement ‘will for all
practical purposes be deprived of his day in court’ because of the grave inconvenience or
unfairness of the selected forum; (3) the fundamental unfairness of the chosen law will deprive the
plaintiff of a remedy; or (4) enforcement of the forum selection clause would contravene a strong
public policy of the forum state.”98
Here, Plaintiffs, as the parties attacking the forum selection clause, argue that the forum
selection clause should not be enforced because its enforcement would “contravene a strong public
policy of the forum state.” 99 Specifically, Plaintiffs contend that the forum selection clause
contravenes the public policy set forth in Louisiana Revised Statute § 22:868, which prohibits
insurance policies issued or delivered in Louisiana from depriving the courts of Louisiana of
jurisdiction over an action against the insurer.100 Defendant argues that forum selection clauses do
not deprive the courts of Louisiana of jurisdiction and thus, the forum selection clause does not

96

Barnett v. DynCorp Int’l, LLC, 831 F.3d 296, 300 (5th Cir. 2016) (internal citation omitted).

97

Id. (internal citation omitted).

98

Id. at 301 (internal citation omitted).

99

Id.

100

Rec Doc. 16 at 4.

17

contravene the public policy set forth in Section 22:868.101
The Court must therefore interpret Louisiana state law to determine whether the forum
selection clause in the Policy at issue contravenes a Louisiana public policy as set forth in Section
22:868. When a federal court interprets a state law, it must do so according to the principles of
interpretation followed by that state’s highest court.102 In Louisiana, “courts must begin every
legal analysis by examining primary sources of law: the State’s Constitution, codes, and
statutes.”103 These authoritative or primary sources of law are to be “contrasted with persuasive
or secondary sources of law, such as [Louisiana or other civil law] jurisprudence, doctrine,
conventional usages, and equity, that may guide the court in reaching a decision in the absence of
legislation and custom.”104 To make a so-called “Erie guess” on an issue of Louisiana law, the
Court must “employ the appropriate Louisiana methodology” to decide the issue the way that it
believes the Supreme Court of Louisiana would decide it.105
The Court starts, as it must, by examining primary sources of Louisiana law, in this case
Title 22 of the Insurance Code. Louisiana Revised Statute §22:868 states:
A. No insurance contract delivered or issued for delivery in this state and covering
subjects located, resident, or to be performed in this state, or any group health and
accident policy insuring a resident of this state regardless of where made or
delivered, shall contain any condition, stipulation, or agreement either:
(1) Requiring it to be construed according to the laws of any other state or
country except as necessary to meet the requirements of the motor
vehicle financial responsibility laws of such other state or country.
101

Rec. Doc. 20 at 2.

102

Jones Motor Grp., Inc. v. Hotard, 135 F.Supp.3d 530, 535 (E.D. La. 2015) (Brown, J.) (internal citation

omitted).
103

Id. (quoting Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 547 (5th Cir. 2004)).

104

Id.

105

Id.

18

(2) Depriving the courts of this state of the jurisdiction of action against the
insurer.106
Plaintiffs point to the language of Section 22:868(A)(2) and contend that the forum selection clause
in the Policy impermissibly deprives the courts of Louisiana of the jurisdiction of an action against
the insurer.107 The statute itself does not specifically mention forum selection clauses. The task
for the Court, therefore, is to determine whether a forum selection clause constitutes “any
condition, stipulation or agreement . . . depriving the courts of [Louisiana] of the jurisdiction of
action against the insurer.”108
“The starting point for statutory interpretation and construction is the language of the law
itself.”109 Plaintiffs contend that under the language of Section 22:868, the forum selection clause
in the Policy deprives Louisiana courts of jurisdiction. In Shelter Mutual Insurance Company v.
Rimkus Consulting Group, Inc. of Louisiana, the Supreme Court of Louisiana recently recognized
that a forum selection clause “is a provision in a contract that mandates a particular state, county,
parish, or court as the proper venue in which the parties to an action must litigate any future
disputes regarding their contractual relationship.” 110 In arguing that a forum selection clause

106

La. Rev. Stat. § 22:868.

107

Rec. Doc. 16 at 4.

108

La. Rev. Stat. § 22:868(A).

109

Touchard v. Williams, 617 So.2d 885 (La. 1993); see also 20 La. Civ. L. Treatise, Legis. Law & Proc. §
7:2 (2016 ed.).
110

Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 148 So.3d 871, 873 (La. 2014)
(internal quotation marks and citations omitted) (emphasis added). See also Vallejo Enterprise, LLC v. Boulder Image,
Inc., 05-2649 (La. App. 1 Cir. 11/3/06), 950 So.2d 832, 837 (internal citation omitted) (“We would agree that the
presence of a forum-selection clause does not divest the trial court of jurisdiction to determine the underlying
contract’s validity and legality.”); Lewis v. Townsend, 47, 536 (La. App. 2 Cir. 12/12/12), 108 So.3d 184, 187
(construing an exception of lack of subject matter jurisdiction as an exception of venue where defendants sought to
enforce a forum selection clause and noting that determination of the enforceability of a forum selection clause is an
issue of venue, not subject matter jurisdiction); Luffey ex rel. Fredrickburg Props. of Texas, LP, 37, 591 (La. App. 2
Cir. 12/10/03) (noting that “[a] forum selection clause expresses the parties’ intent with regard to venue” and finding

19

mandating a particular venue deprives the Louisiana courts of jurisdiction, Plaintiffs appear to
conflate the concepts of jurisdiction and venue. However, the two concepts are separate and
distinct. As defined by the Louisiana Code of Civil Procedure article 41, “venue” means “the parish
where an action or proceeding may properly be brought and tried under the rules regulating the
subject.”111 By contrast, Louisiana Code of Civil Procedure article 2 states that “[j]urisdiction over
the subject matter is the legal power and authority of a court to hear and determine a particular
class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the
value of the right asserted.” 112 Subject matter jurisdiction is created by the constitution or
legislative enactment113 and, unlike venue, cannot be conferred or waived by the parties.114 Thus,

that the defendants could not seek enforcement of the forum selection clause through an exception of lack of subject
matter jurisdiction, “as the forum selection clause does not affect the power or authority of the court to hear the
matter”) (citing La. Civ. Code art. 41); Louisiana Pigment Co., LP v. Air Liquide Am., LP, 13-698 (La. App. 3 Cir.
10/15/14), 149 So.3d 997, 1005 (reversing trial court’s grant of an exception for improper venue after finding that the
forum selection clause did not violate public policy); 1 La. Civ. L. Treatise, Civ. Pro. §3:3 (2d ed.) (noting that when
a forum selection clause is mandatory, it deprives a party of venue in another parish, “unless there is clear proof that
enforcement of the forum selection clause would be unreasonable or unjust, or that the clause arises from fraud or
overreaching, or that enforcement would contravene a strong public policy”); 1 La. Prac. Civ. Proc. Article 44, Waiver
of Objections to Venue (2016 ed.) (noting that even before the Louisiana Supreme Court’s holding in Shelter Mutual
Ins. Co., Louisiana appellate courts had generally held forum selection clauses to be prima facie valid). Cf. Atl. Marine
Const. Co., Inc. v. U.S. Dist. Ct. for the W. Dist. of Tex., et al., 134 S.Ct. 568, 579 (2013) (holding that a forum
selection clause does not render venue “wrong” or “improper” and that it may be enforced through a motion to transfer
venue under §1404(a)).
111

La. C.C.P. art. 41.

112

La. C.C.P. art. 2.

113

See, e.g., La. Const. art. 5.

114

See La. C.C.P. arts. 3, 925. See also Boudreaux v. State Dept. of Transp. and Devpt., 01-1329 (La.
2/26/02), 815 So.2d 7 (“The jurisdiction of a court over the subject matter of an action or proceeding cannot be
conferred by consent of the parties or waived . . .”). See also Black’s Law Dictionary (9th ed.) (internal citation
omitted) (“Venue must be carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to
hear and dispose of a given case . . . Venue is of a distinctly lower level of importance; it is simply a statutory device
designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and efficient
allocation of judicial resources.”).

20

while a party may agree to a particular venue and agree to waive objections to a particular venue
via a forum selection clause, it may not confer or waive subject matter jurisdiction, which can only
be conferred by the constitution or legislative enactment.115
Moreover, in Shelter Mutual Insurance Company, the Supreme Court of Louisiana held
that forum selection clauses are “generally enforceable and are not per se violative of public policy
in Louisiana.”116 The Supreme Court of Louisiana also noted that the United States Supreme Court
in M/S Bremen v. Zapata Off-Shore Company, rejected the viewpoint that forum selection clauses
“oust” the jurisdiction of the court and that this analysis “influenced the enforceability of forum
selection clauses in subsequent state court litigation, including Louisiana.” 117 The Louisiana
Supreme Court recognized in Shelter Mutual Insurance Company that a forum selection clause
mandates a particular venue, which is an issue separate and apart from jurisdiction.118
The Louisiana Supreme Court’s interpretation of Section 22:868 is further supported by
the fact that the plain language of the statute itself does not expressly mention forum selection
clauses, while other statutes enacted by the Louisiana legislature do. The Louisiana legislature has
specifically and expressly limited forum selection clauses in at least three instances: (1) in certain

115

See La. C.C.P. arts. 3, 925. See also Luffey ex rel. Fredericksburg Props. of Tex., LP v. Fredericksburg
Props. of Tex., LP, et al., 37-591 (La. App. 2 Cir. 12/10/03) (“The court that declines to exercise its subject matter
jurisdiction and enforces a valid forum selection clause is making a determination of venue; the court’s power and
authority to adjudicate the matter, or its subject matter jurisdiction remains.”).
116

Id. at 878.

117

Id. at 874 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)).

118

Id. at 873.

21

construction contracts;119 (2) in employment contracts;120 and (3) in the context of actions under
the Louisiana Unfair Trade Practices Act. 121 The Louisiana legislature could have expressly
prohibited forum selection clauses in the context of insurance contracts, but it did not do so in
Section 22:868.122 Plaintiffs argue that the Court should interpret the language of Section 22:868
to prohibit forum selection clauses in insurance contracts. However, the “clear and unambiguous”
language of the statute indicates that those provisions depriving the courts of Louisiana of
jurisdiction—not those mandating a particular venue—are prohibited. 123 Considering the
language of the statute itself, as well as the jurisprudence of the Louisiana Supreme Court, the
Court finds that the forum selection clause in the Policy does not contravene a Louisiana public
policy as set forth in Louisiana Revised Statute § 22:868.124

119
La. Rev. Stat. § 9:2779(A) (declaring “provisions . . . requiring disputes arising [under public and private
works projects] to be resolved in a forum outside of this state” to be “inequitable and against the public policy of this
state”).
120
La. Rev. Stat. §23:921(A)(2). See also Sawicki v. K/S Stavanger Prince, 01-0528 (La. 12/7/01), 802 So.2d
598 (finding that a forum selection clause contained in an employment contract violated Louisiana’s public policy as
stated in La. Rev. Stat. § 23:921(A)(2)); Authenment v. Ingram Barge Co., 878 F.Supp.2d 672 (E.D. La. 2012)
(Milazzo, J.) (recognizing that La. Rev. Stat. § 23:921(A)(2) prohibits forum selection clause in employment contracts
but finding the law inapplicable to an insurance contract).
121
La. Rev. Stat. § 51:1407(A). See also Lejano v. Bandak, 97-388 (La. 12/12/97), 705 So.2d 158, cert.
denied, Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815 (1998) (clarifying that the language in La.
Rev. Stat. § 51:1407(A) is limited in scope to transactions or interactions between out-of-state, professional telephone
solicitors and Louisiana residents).
122
See, e.g., Borel v. Young, 2007-0419 (La. 11/27/07) 989 So.2d 42, 62 (construing a statute and finding
that the legislature would not “hint” about the issue of peremption when it was apparent from other statutes that it
“clearly knows how to specify its intention in this regard”).
123

La. Civ. Code art. 9.

124

This finding is further supported by the Louisiana and federal jurisprudence interpreting Section 22:868
to prohibit arbitration clauses, which would deprive Louisiana courts of jurisdiction over a dispute, in insurance
contracts delivered in Louisiana. See Doucet v. Dental Health Plans Mgmt. Corp., 412 So.2d 1383, 1384 (La. 1982)
(noting that arbitration provisions of an insurance contract would be unenforceable under La. Rev. Stat. §22:629, now
renumbered as La. Rev. Stat. §22:868); Macaluso v. Watson, 171 So.2d 755 (La. App. 4 Cir. 1965) (finding arbitration
agreement between insured and automobile liability insurer void and unenforceable under La. Rev. Stat. §22:629, now
renumbered as La. Rev. Stat. §22:868); Courville v. Allied Prof. Ins. Co., 2013-0976 (La. App. 1 Cir. 6/5/15) 174
So.3d 659, 666 (“Louisiana has enacted [La. Rev. Stat. §22:868] that effectively prohibits the enforcement of

22

The Court notes that Plaintiffs point to three Louisiana appellate court decisions to support
its contention that forum selection clauses violate a public policy of Louisiana as set forth Section
22:868. However, each of these cases is distinguishable and unpersuasive here, because none of
the cases cited by Plaintiffs address a forum selection clause. In Lawrence v. Continental Insurance
Company, for example, the Louisiana Third Circuit Court of Appeal held that a provision in an
automobile insurance policy requiring the insured making a claim under the “uninsured motorist”
coverage to join the non-resident uninsured motorist as a party defendant was invalid, because the
Louisiana court did not have personal jurisdiction over the non-resident motorist.125 The other two
cases cited by Plaintiffs both concern the issue of whether a Louisiana court has subject matter
jurisdiction over a claim by Louisiana residents against a foreign insurer, where the insurer had
been placed in receivership in Texas, but not in Louisiana.126 The Louisiana First Circuit and Third
Circuit Courts of Appeal both held that the trial court properly found it had subject matter
jurisdiction over the action, in part because of the policy set forth in Section 22:868 requiring that
Louisiana courts have jurisdiction over insurance policies issued or delivered in Louisiana.127
None of the cases cited by Plaintiffs stand for the proposition that forum selection clauses deprive
Louisiana courts of jurisdiction.
In sum, the plain language of Section 22:868 does not prohibit forum selection clauses in

arbitration provisions in the context of insurance disputes.”); Safety Nat’l Cas. Corp. v. Certain Underwriters at
Lloyd’s, London, 587 F.3d 714, 719 (5th Cir. 2009) (internal citations omitted) (noting that Louisiana courts have held
that arbitration agreements in insurance policies are unenforceable under Louisiana Revised Statute §22:868).
125

199 So.2d 398, 399 (La. Ct. App. 3 Cir. 1967).

126
Bonura v. United Bankers Life Ins. Co., 509 So.2d 8 (La. Ct. App. 1 Cir. 1987); Krueger v. Tabor, 546
So.2d 1317 (La. Ct. App. 3 Cir. 1989).
127

Bonura, 509 So.2d at 11 Krueger, 546 So.2d at 1321. At the time of the courts’ rulings, Section 22:868
was numbered as Louisiana Revised Statute §22:629.

23

insurance contracts, but rather prohibits provisions that deny the courts of Louisiana of jurisdiction
over an action against the insurer. As noted supra, the issue of venue is distinct from the issue of
jurisdiction. As the Louisiana Supreme Court has recognized, a forum selection clause is a
provision that mandates a particular venue.128 Forum selection clauses are generally enforceable
in Louisiana and are not per se violative of public policy in the state.129 Moreover, the Louisiana
legislature has expressly prohibited forum selection clauses in certain contexts but did not do so in
the language of Section 22:868.130 Accordingly, the Court finds that the forum selection clause in
the Policy does not contravene a “strong public policy” in Louisiana and is valid and
enforceable.131
3.

Whether Dismissal is Appropriate under a Forum Non Conveniens Analysis

Having found the forum selection clause to be mandatory and valid, the Court must next
evaluate whether dismissal is appropriate under a forum non conveniens analysis. As stated supra,
the existence of a valid forum selection clause simplifies the forum non conveniens analysis in two
ways: (1) the “plaintiff’s choice of forum merits no weight” because, by contracting for a specific
forum, “the plaintiff has effectively exercised its ‘venue privilege’ before a dispute arises;”132 and
(2) the private-interest factors “weigh entirely in favor of the preselected forum,” so that the

128

Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 2013-1977 (La. 7/1/14), 148 So.3d
871, 873 (internal quotation marks and citations omitted) (emphasis added).
129

Id. at 878.

130

See La. Rev. Stat. § 51:1407(A); La. Rev. Stat. §23:921(A)(2); La. Rev. Stat. § 9:2779(A).

131

Barnett v. DynCorp Int’l, LLC, 831 F.3d 296, 301 (5th Cir. 2016) (internal citation omitted).

132

Id. at 301 (quoting Atl. Marine Const. Co. v. United States District Court, 134 S.Ct. 568 (2013)) (internal
quotation marks omitted).

24

“district court may consider arguments about public-interest factors only.”133 The Fifth Circuit has
held that public interest factors include: (1) “administrative difficulties flowing from court
congestion;” (2) “the local interest in having localized controversies decided at home;” (3) “the
interest in having the trial of a diversity case in a forum that is at home with the law that must
govern the action;” (4) “the avoidance of unnecessary problems in conflict of laws, or in the
application of foreign law;” and (5) “the unfairness of burdening citizens in an unrelated forum
with jury duty.”134 “These factors justify a refusal to enforce a forum-selection clause only in
‘truly exceptional cases.’”135
Here, Plaintiffs do not address the first factor. However, Defendant points to federal court
management statistics indicating that the Eastern District of Louisiana has a high number of
pending cases per judgeship compared to other district courts.136 Thus, the Court finds that the
first factor weighs in favor of enforcing the forum selection clause.
As to the second factor, Plaintiffs argue that this case has no connection to the State of New
York except that the insurer’s parent company “has an address there.”137 Defendant points out,
however, that the Policy covers properties in multiple states and that the Policy was issued in
Georgia by a Missouri Corporation, with its principal place of business in Kansas. 138 Thus,
Defendant argues that even though the property at issue is located in Louisiana, the instant dispute

133

Id. at 302 (citing Atl. Marine, 134 S.Ct. at 583).

134

Id. at 309 (citing Weber, 811 F.3d at 776).

135

Id.

136

Rec. Doc. 11-1 at 18 (citing Rec. Doc. 11-4).

137

Rec. Doc. 16 at 10.

138

Rec. Doc. 11-1 at 19.

25

is not “localized.”139 The Court finds that this factor also weighs in favor of enforcement of the
forum selection clause, as the instant action involves a dispute between parties in a variety of
locations regarding a policy covering properties in multiple states and is therefore not highly
localized.
As to the third factor, the Court notes that Plaintiffs argue that the choice of law forum in
the Policy is invalid under Section 22:868 and that Louisiana law, rather than New York law, must
apply to the instant dispute.140 Section 22:868(A)(1) states that no insurance contract issued or
delivered in Louisiana shall contain a provision “requiring it to be construed according to the laws
of any other state or country except as necessary to meet the requirements of the motor vehicle
financial responsibility laws of such other state or country.”141 Courts have declined to enforce
choice of law provisions in insurance contracts due to the public policy concern expressed in
Section 22:868(A)(1).142 Assuming, without deciding, that the Policy’s choice of law provision is
invalid due to Louisiana’s public policy concern as expressed in Section 22:868(A)(1), the Court
finds that the third factor weighs slightly against enforcement of the forum selection clause under
Section 22:868. However, the Court notes that Section 22:868(C) expressly states that the voiding
of any condition under Sections 22:868(A) or (B) “shall not affect the validity of the other
provisions of the contract.”143 Thus, even if the choice of law provision were to eventually be

139

Id.

140

Rec. Doc. 16 at 11.

141

La. Rev. Stat. § 22:868(A)(1).

142

See, e.g., Casey v. Prudential Ins. Co. of Am., 360 So. 2d 1386, 1390 (La. Ct. App.), writ denied sub nom.
Casey v. Prudential Ins. Co, 363 So. 2d 536 (La. 1978). See also Kadan v. Comm. Ins. Co., 800 F.Supp. 1392 (E.D.
La. 1992).
143

La. Rev. Stat. § 22:868(C).

26

invalidated due to public policy concerns, that invalidation, by the terms of the statute, would not
affect the validity of the forum selection clause.
As to the fourth factor, Plaintiffs have not presented any argument that adjudication of this
dispute in New York would present any “unnecessary problems in conflict of laws, or in the
application of foreign law.”144 Accordingly, the Court finds that the fourth factor also weighs in
favor of enforcement. The Court notes that neither party addresses the fifth factor in the briefing
before the Court. Therefore, the Court will consider this factor to be neutral.
As noted supra, “[t]hese factors justify a refusal to enforce a forum-selection clause only
in ‘truly exceptional cases.’”145 Considering the relevant factors, the Court finds that the first,
second and fourth factors weigh in favor of enforcement of the forum selection clause, that the
third factor weighs slightly against enforcement, and that the fifth factor is neutral. Considering
the Fifth Circuit’s guidance that the factors justify non-enforcement of a forum selection clause
only in truly exceptional cases, the Court finds that Plaintiffs have failed to carry the “high burden
of persuasion” here to demonstrate that this is such a case.146 Accordingly, the Court finds that
dismissal pursuant to the doctrine of forum non conveniens is appropriate.
4.

Plaintiffs’ Additional Arguments

The Court notes that Plaintiffs also argue that it would be more convenient for them to
litigate this action in Louisiana. 147 However, as noted supra, such private interests are not

144

Barnett, 831 F.3d at 301 (internal citation omitted).

145

Id. at 309.

146

See id.

147

Rec. Doc. 16 at 10-11.

27

considered under the forum non conveniens analysis where, as here, a valid forum selection clause
is included in the Policy. Likewise, the Court finds unavailing Plaintiffs’ argument that the Court
should decline to enforce the forum selection clause because Plaintiffs seek consolidation of this
action with another action pending in the Eastern District of Louisiana that they allege is related.148
However, the fact that a potentially related case is pending in the Eastern District of Louisiana is
not a public interest factor to be considered under the forum non conveniens analysis.
The Court also notes Plaintiffs’ argument that “the damaged and destitute insureds” of
Louisiana should not be forced to litigate claims in foreign forums following the “devastating
effects” of a hypothetical natural disaster or other catastrophe.149 In the case of a destitute insured
following a natural disaster, the relevant factors may indeed weigh against the enforcement of a
forum selection clause. However, this case involves two sophisticated parties who bargained for
and agreed upon a forum selection clause, and Plaintiffs have not carried their burden to
demonstrate that the instant action is a truly exceptional case such that the parties’ negotiated
forum selection clause should not be enforced. 150 Accordingly, the Court grants Defendant’s
motion and dismisses the instant action without prejudice.151

148

Id. at 10.

149

Rec. Doc. 16 at 11.

150

See Shelter Mut. Ins. Co., 148 So.3d at 882 (striking down the lower court’s holding that forum selection
clauses were unenforceable under Louisiana law and noting that the “parties in this case are commercially
sophisticated entities who have a history of conducting business together”).
151

The Court also notes that the parties have submitted supplemental memoranda regarding another action
filed by Defendant in New York regarding the instant dispute. See Rec. Docs. 25, 33. However, Plaintiffs have not
cited to any authority indicating that the filing of such an action weighs in favor of non-enforcement of the valid forum
selection clause or that the action is otherwise relevant to the Court’s analysis regarding the instant motion.

28

IV. Conclusion
Based on the foregoing, the Court finds that that the forum selection clause in the Policy is
mandatory and valid. The Court further finds that Plaintiffs, as the parties resisting enforcement
of the forum selection clause, have not met their burden to “overcome a presumption of
enforceability” of the forum selection clause.152 Considering the relevant public interest factors
under the appropriate forum non conveniens analysis, the Court finds that Plaintiffs have not
carried their burden to demonstrate that the instant action is a truly exceptional case such that the
parties’ negotiated forum selection clause should not be enforced.153
Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion to Dismiss”154 is GRANTED.
IT IS FURTHER ORDERED that the instant action be DISMISSED WITHOUT
PREJUDICE.

29th
NEW ORLEANS, LOUISIANA, this ______ day of June, 2017.

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

152

Barnett, 831 F.3d at 301 (citing Haynsworth, 121 F.3d at 963).

153

See id.

154

Rec. Doc. 11.

29