Skoglund v. PetroSaudi Oil Services Venezuela Ltd et al

Filing 35

ORDER AND REASONS: IT IS ORDERED that Defendant's 17 motion to dismiss is GRANTED and Plaintiff's claims against Defendant are DISMISSED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 11/20/2018. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELLIS SKOGLUND

CIVIL ACTION

VERSUS

NO. 18-386

PROCUREMENT SERVICES (DELAWARE) INC.

SECTION: “B”(4)

ORDER AND REASONS
Defendant Procurement Services (Delaware) Inc. filed a motion
to

dismiss

Plaintiff’s

claims

on

the

grounds

of

forum

non

conveniens and improper venue based on a forum-selection clause in
plantiff’s employment agreement. Rec. Doc. 17. Plaintiff timely
filed an opposition. Rec. Doc. 21. Defendant then sought, and was
granted, leave to file a reply. Rec. Doc. 29. Plaintiff sought
leave to file a surreply but was denied. Rec. Doc. 33.
For the reasons discussed below,
IT IS ORDERED that Defendant’s motion to dismiss is GRANTED
and Plaintiff’s claims against Defendant are DISMISSED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts pertinent to this motion are laid out in greater
detail in the recent order and reasons issued on the motion to
dismiss filed by the remaining Petrosaudi defendants. They are
adopted here in support of the instant order and reasons and
summarized briefly. Plaintiff Ellis Skoglund filed a complaint
against defendant Procurement Services (Delaware) Inc. and the
remaining PetroSaudi defendants in this case, alleging negligence
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under the Jones Act. Rec. Doc. 1. Plaintiff was employed as a deck
foreman

aboard

a

PetroSaudi

drillship

located

in

waters

off

Venezuela. Id. Plaintiff alleges that he was injured while working
below deck because of negligence by defendants or their employees
and therefore they are liable as his Jones Act employers. Id.
Defendant Procurement Services (Delaware) Inc. submitted the
instant motion to dismiss on the grounds of forum non conveniens,
alleging that plaintiff’s employment agreement contains a valid
and enforceable forum-selection clause identifying the courts of
England and Wales as the proper forum for adjudication. Rec. Doc.
17. Plaintiff filed a response asserting that the forum-selection
clause is not valid and enforceable for the same reasons laid out
by the PetroSaudi defendants in their motion to dismiss (Rec. Doc.
16), which are that the forum-selection clause and choice of law
clause operate as an impermissible prospective waiver of statutory
rights and that it was a result of fraud, undue influence, and
unequal bargaining power. Rec. Doc. 21. Furthermore, plaintiff
asserts that it is not clear that the forum-selection clause is
the type of right or obligation that can be enforced under the
Third Party Rights clause of the agreement, and therefore the
agreement should be construed in plaintiff’s favor. Id. at 4.
LAW AND ANALYSIS
The
employment

forum-selection
agreement

is

clause
valid.
2

contained

The

arguments

in

plaintiff’s

concerning

the

enforceability and validity of the forum-selection clause at issue
in the instant motion were considered in depth in the recent order
and reasons on the PetroSaudi defendants’ motion to dismiss. In
summary,

forum-selection

enforceable

in

clauses

admiralty

are

cases,

presumptively

and

defendant’s

valid

and

arguments

concerning unequal bargaining power and a prospective waiver of
statutory rights are not sufficient to overcome this presumption.
Therefore, for the reasons given in the recent order, the forumselection

clause

is

valid

and

enforceable

and

would

warrant

dismissal pursuant to the doctrine of forum non conveniens.
The remaining issue is only whether this defendant may enforce
the forum-selection clause as a third-party. This Court finds that
defendant

is

entitled

to

enforce

the

forum-selection

clause

pursuant to the Third Party Rights paragraph in the employment
agreement. The Third Party Rights paragraph of the employment
agreement states that any “Group Company” is entitled to enforce
“any rights and obligations” under the agreement. See Rec. Doc.
17-1 at 3. The Agreement defines “Group Company” to include any
subsidiary,

and

defendant

asserts

that

it

is

a

wholly-owned

subsidiary of PetroSaudi Oil, as supported by the sworn affidavit
of Timothy Myers, the president of PetroSaudi Oil. See Rec. Doc.
17-2 at 2. Therefore, the issue turns on whether the forumselection clause is a right or obligation that can be then enforced
by defendant. Plaintiff’s sole textual argument for why the forum3

selection clause should not be considered a right or obligation to
be enforced is the inclusion of an explanatory parenthetical phrase
in the Third Party Rights paragraph. The paragraph states that
“any Group Company shall be entitled to enforce any rights and
obligations (including but not limited to you breaching your
obligations in respect of using Confidential Information).” Rec.
Doc. 17-1 at 3. The fact that the restriction on the use of
confidential information was included as an example of a right and
obligation that can be enforced by a third-party does not mean
that it is the only right and obligation that can be enforced. The
parenthetical

specifically

states

the

rights

and

obligations

covered by the paragraph are “not limited to” the one example
provided.

Therefore,

plaintiff’s

textual

argument

for

not

enforcing the forum-selection clause is unpersuasive. The forumselection clause states that each party “irrevocably agrees to
submit to the exclusive jurisdiction of the courts of England and
Wales.” Rec. Doc. 17-2 at 21. This language places an obligation
on each party to bring all claims in a specific forum, and
therefore defendant is entitled to enforce it as a “Group Company”.
Additionally,

plaintiff’s

argument

that

forum-selection

clauses should not be enforced in suits by American seamen against
American companies is not supported by caselaw. Plaintiff cites to
a single case from the Southern District of Texas, Boutte v. Cenac
Towing, as support for his argument. Rec. Doc. 21 at 5. In Boutte,
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the district court in Texas held that forum-selection clauses in
employment

contracts

between

American

seamen

and

American

companies are unenforceable under the Jones Act. See Boutte v.
Cenac Towing, Inc., 346 F.Supp.2d 922 (S.D. Tex. 2004). The court
in Boutte reasoned that forum-selection clauses were unenforceable
in Fair Employers’ Liability Act (“FELA”) claims and therefore
must also be unenforceable in Jones Act claims involving American
seamen and American companies. Id. However, the Fifth Circuit
called this holding into question in Terrebonne v. K-Sea Transp.
Corp, where it ruled that the venue provisions of the FELA do not
apply to the Jones Act as the Jones Act includes its own venue
provision. See Terrebonne v. K-Sea Transp. Corp, 477 F.3d 271, 281
(5th Cir. 2007). Although the Jones Act was amended in 2008 to
eliminate

its

venue

provision,

subsequent

district

courts

to

consider the issue, including this one, have continued to find
that the FELA venue provisions do not apply to the Jones Act. See
Brister v. ACBL River Operations LLC, 2018 WL 746390 (E.D. La.
Feb.

7,

2018)

(finding

plaintiff’s

argument

that

the

FELA’s

prohibition on forum-selection clauses applies to the Jones Act to
be

without

merit,

especially

in

light

of

recent

federal

jurisprudence holding that FELA’s venue provisions do not apply in
the Jones Act); Utoafili v. Trident Seafoods Corp, 2009 WL 6465288
(N.D. Ca. Oct 19, 2009) (finding no basis for concluding that
Congress intended for FELA’s venue provisions to be read into the
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current version of the Jones Act after reviewing the legislative
history

of

the

Jones

Act

amendments).

Therefore,

plaintiff’s

argument that this court should follow Boutte and incorporate the
venue provisions of the FELA into the Jones Act is not convincing.
This Court finds that the forum selection clause is valid and
enforceable for the foregoing reasons.
Defendant raises new arguments in its reply to plaintiff’s
opposition concerning its status as a Jones Act employer and
plaintiff’s invocation of admiralty jurisdiction pursuant to Rule
9(h) that the Court does not consider at this time. Rec. Doc. 29
at 1. The instant motion to dismiss was filed by defendant solely
on the grounds of forum non conveniens based on the forum-selection
clause in the employment agreement. Defendant did not raise any
other arguments until the noted reply memorandum. It will not be
considered at this stage in view of rulings here on other issues.

New Orleans, Louisiana, this 20th day of November, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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