Girdler v. American Commercial Barge Line LLC
Filing
25
ORDER AND REASONS granting 10 MOTION to Transfer; Case transferred to District of Southern District of Indiana, New Albany Division. Signed by Judge Lance M Africk on 12/18/2017.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRAD GIRDLER
CIVIL ACTION
VERSUS
No. 17-6593
AMERICAN COMMERCIAL BARGE LINE, LLC
SECTION I
ORDER AND REASONS
Plaintiff Brad Girdler (“Girdler”) alleges that he was injured while working
aboard the M/V JOHN NUGENT, a vessel owned and operated by defendant
American Commercial Barge Line, LLC (“ACBL”). 1
Girdler contends that
negligence on the part of ACBL resulted in his injury. 2
Before the Court is a motion filed by ACBL to enforce a forum selection
clause located in paperwork completed in relevant part by Girdler after he
sustained his injury. 3
The motion asks the Court to dismiss Girdler’s case for
improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). 4
In the
alternative, ACBL asks the Court to transfer the case to the U.S. District Court for
the Southern District of Indiana, New Albany Division, pursuant to 28 U.S.C. §
1404(a). 5 Girdler opposes the motion. 6
I.
See R. Doc. No. 1, ¶ 3-5.
Id. ¶ 6.
3 See R. Doc. No. 10-4, at 14.
4 R. Doc. No. 10.
5 Id.
6 R. Doc. No. 12.
1
2
1
First, the Court points out that ACBL may not seek dismissal of this case
pursuant to Rule 12(b)(3) 7 on the ground that the forum selection cause at issue
renders venue “improper” in the Eastern District of Louisiana. The Supreme Court
concluded in Atlantic Marine Construction Company, Inc. v. United States District
Court for the Western District of Texas, 134 S. Ct. 568 (2013) (“Atlantic Marine”),
that “[w]hether venue is ‘wrong’ or ‘improper’ depends exclusively on whether the
court in which the case was brought satisfies the requirements of federal venue
laws, and those provisions say nothing about a forum-selection clause.” Atlantic
Marine, 134 S. Ct. at 577 (emphasis added). ACBL does not suggest that venue is
improper in the Eastern District of Louisiana under federal venue laws. 8
According to the Atlantic Marine Court, where a mandatory and enforceable
forum selection clause “point[s] to a U.S. court,” then “the proper mechanism for
enforcing such a clause is a motion for transfer of venue under 28 U.S.C. §1404(a).”
Weber v. PACT XPP Technologies, AG, 811 F.3d 758, 766 (5th Cir. 2016) (citing
Atlantic Marine, 134 S. Ct. at 575, 579). On the other hand, “the proper mechanism
to enforce [a mandatory and enforceable forum selection clause] that calls for
litigation in a domestic state court or in a foreign court is through a motion to
dismiss on grounds of [forum non conveniens].” Id. (citing Atlantic Marine, 134 S.
Ct. at 580).
The forum selection clause at issue in this case points to a U.S. court—
namely, the U.S. District Court for the Southern District of Indiana, New Albany
7
8
Rule 12(b)(3) provides for dismissal of an action for improper venue.
See generally R. Doc. No. 10-1.
2
Division. 9 Thus, if the clause is both mandatory and enforceable, then 28 U.S.C. §
1404(a) provides the proper avenue through which ACBL may seek to enforce it.
II.
The forum selection clause that ACBL seeks to enforce appears on a form
titled “Attending Physician’s Statement of Functionality.” 10
The paragraph
featuring the clause provides, in full:
I hereby authorize release of information on this form by the below
named physician for the purpose of claim processing. I agree to fully
cooperate and participate in all medically directed treatment, as
necessary. Failure to do so could result in loss of the pay continuance
benefit offered to me by ACBL. I further agree that in the event I file a
claim or lawsuit against ACBL relating to the pay continuance program
and/or the incident giving rise to the illness and/or injury that is the
subject of my leave of absence from work, such suit will only be filed in
the U.S. District Court for the Southern District of Indiana, New
Albany Division and I will make no effort to have such lawsuit or claim
transferred or moved to any other court. 11
Girdler does not contend that this clause is not mandatory, 12 but only that it is
unenforceable. 13
R. Doc. No. 10-4, at 14.
Id.
11 Id.
12 “A mandatory [forum selection clause] affirmatively requires that litigation
arising from the contract be carried out in a given forum.” Weber, 811 F.3d at 768.
A clause is mandatory “only if it contains clear language specifying that litigation
must occur in the specified forum.” Id. (emphasis in original). The Court notes that
the clause at issue in this case indicates that Girdler agreed to “only” pursue
litigation against ACBL in a specific forum and agreed to “make no effort” to pursue
litigation in another court. R. Doc. No. 10-4, at 14.
13 See R. Doc. No. 12, at 5-7.
Girdler abandoned his argument that the 2008
amendments to the Jones Act rendered the forum selection clause null and void as a
matter of law. See R. Doc. No. 23. Therefore, the Court will not consider the
argument.
9
10
3
A party attacking a forum selection clause must show that that the clause is
unreasonable under the circumstances in order to overcome the presumption that
the clause should be enforced. Barnett v. DynCorp Int’l, L.L.C., 831 F.3d 296, 301
(5th Cir. 2016). A clause is unreasonable where
(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.
Id. (quoting Haynsworth v. The Corp., 121 F.3d 956, 963 (5th Cir. 1997)) (internal
quotation marks omitted).
Girdler argues that the forum selection clause is unenforceable, because it is
“fundamentally unfair” and “was placed into a document . . . by fraud or
overreaching.” 14 Girdler contends that “[a]bsolutely no mention of the clause was
made to [him] in the letters sent to him regarding the pay continuation program.” 15
He further contends that “the clause was not set off or distinguished in any way so
as to alert [him] to the very significant right which ACBL was attempting to have
him waive.” 16 Girdler maintains that the clause “was buried in a paragraph” that
featured information unrelated to the forum selection clause and that the form
featuring the clause was directed toward Girdler’s physician, not Girdler. 17
R. Doc. No. 12, at 5.
Id. at 6.
16 Id.
17 Id.
14
15
4
The Court rejects Girdler’s suggestion that the clause is unenforceable. The
paragraph featuring the clause is located at the top of the “Attending Physician’s
Statement of Functionality” form. 18 It is boxed off from, and is written in the same
font and text size as, the rest of the form. 19
The paragraph is labeled “To be
completed by the Employee,” and Girdler’s signature appears directly below the
paragraph. 20
Further, courts in this district have enforced forum selection clauses in
analogous situations. See Smith v. Teco Ocean Shipping, Inc., No. 04-0445, 2004
WL 1638111 (E.D. La. July 20, 2004) (Porteous, J.) (in a case arising under the
Jones Act and general maritime law, enforcing a forum selection clause located in a
“Vessel Wage Continuation Plan” application completed by the plaintiff after he
incurred his injury); Taylor v. Teco Barge Line, Inc., No. 06-6094, R. Doc. No. 28
(E.D. La. Feb. 12, 2008) (Duval, J.) (same). Simply put, in light of the clause’s
presentation on the “Attending Physician’s Statement of Functionality” form,
Girdler’s signature directly below the clause, and relevant case law, Girdler has not
overcome the presumption that the clause at issue is enforceable.
III.
The forum selection clause to which Girdler agreed is both mandatory and
enforceable. As such, the Court will next consider whether to transfer the case to
See R. Doc. No. 10-4, at 14.
See id.
20 See id.
18
19
5
the U.S. District Court for the Southern District of Indiana, New Albany Division—
the court specified by the clause—pursuant to 28 U.S.C. § 1404(a).
Title 28, United States Code, § 1404(a) provides: “For the convenience of
parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought or to
any district or division to which all parties have consented.”
“For the usual §
1404(a) . . . motion, the court considers various private- and public-interest factors.”
Weber, 811 F.3d at 767. The Fifth Circuit has adopted the factors enunciated by the
Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) “as appropriate for
the determination of whether a § 1404(a) venue transfer is for the convenience of
parties and witnesses and in the interest of justice.” In re Volkswagen of Am., Inc.,
545 F.3d 304, 315 (5th Cir. 2008) (en banc).
The private interest factors are: ‘(1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing
witnesses; and (4) all other practical problems that make trial of a case
easy, expeditious and inexpensive.’ The 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 in] the
application of foreign law.’”
Id. (internal citations omitted). These factors are “not necessarily exhaustive or
exclusive.” Id.
However, “[t]he existence of a mandatory, enforceable [forum selection
clause] dramatically alters this analysis.” Weber, 811 F.3d at 767.
6
First, the plaintiff’s choice of forum ‘merits no weight’; instead he has
the burden of establishing that § 1404(a) transfer . . . is unwarranted.
And second, the court should not consider the private-interest factors:
Because the parties have contracted for a specific forum, they ‘waive
the right to challenge their preselected forum as inconvenient . . . .’
Instead, the court should consider only public-interest factors.
‘Because those factors will rarely defeat a transfer motion, the
practical result is that forum-selection clauses should control except in
unusual cases.’
Cases in which the public-interest factors are
sufficiently strong to outweigh a valid [forum selection clause] ‘will not
be common.’
Id. (internal citations omitted) (alteration removed).
Girdler has identified only “practical problems that make trial of a case easy,
expeditious and inexpensive” in the Eastern District of Louisiana: docket speed, and
judicial knowledge and experience in maritime cases. 21 In re Volkswagen of Am.,
545 F.3d at 315. However, as Girdler agreed to a mandatory and enforceable forum
selection clause, the Court may not consider any private-interest factors in
conducting its § 1404(a) analysis. Instead, the Court may only consider publicinterest factors that counsel against transferring the case to the forum to which the
parties contractually agreed. Given the fact that Girdler has not identified any
such factors, the Court concludes that transfer of this matter to the U.S. District
Court for the Southern District of Indiana, New Albany Division, is appropriate.
IV.
Accordingly,
21
R. Doc. No. 12, at 7.
7
IT IS ORDERED that ACBL’s motion is GRANTED and that the abovecaptioned matter is TRANSFERRED to the U.S. District Court for the Southern
District of Indiana, New Albany Division, pursuant to 28 U.S.C. § 1404(a).
New Orleans, Louisiana, December 18, 2017.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
8
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