Brenner v. National Outdoor Leadership School
Filing
22
ORDER granting 12 Motion to Transfer/Change Venue (Written Opinion). Signed by Senior Judge David S. Doty on 5/19/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-02908(DSD/JJG)
Elizabeth Brenner, as
Trustee for the Heirs
and Next-of-Kin of Thomas
Levi Plotkin,
Plaintiff,
ORDER
v.
National Outdoor Leadership School,
Defendant.
Lori L. Barton, Esq., Paul D. Peterson, Esq. and Harper
& Peterson, PLLC, 3040 Woodbury Drive, Woodbury, MN
55129, counsel for plaintiff.
Daniel J. Connolly, Esq., Bruce G. Jones, Esq. and Faegre
Baker Daniels LLP, 90 South 7th Street, Suite 2200,
Minneapolis, MN 55402, counsel for defendant.
This matter is before the court upon the motion to transfer
venue by defendant National Outdoor Leadership School (NOLS).
Based on a review of the file, record and proceedings herein, and
for the following reasons, the court grants the motion to transfer
to the District of Wyoming.
BACKGROUND
This wrongful death dispute arises out of the September 2011
death of Thomas Plotkin during a NOLS course.
corporation
students.
that
organizes
Compl. ¶¶ 4, 6.
remote
wilderness
NOLS is a Wyoming
expeditions
for
Brenner, as trustee for the heirs and
next-of-kin of Plotkin, is Plotkin’s mother and is domiciled in
Minnesota.
Id. ¶¶ 1-2.
In 2011, Plotkin enrolled in a NOLS course to be held in
India.
Id. ¶ 12.
(Agreement)
On April 30, 2011, Plotkin signed a document
entitled
“[NOLS]
Student
Agreement
(Including
Assumption of Risks and Agreements of Release and Indemnity).”
Barton Aff. Ex. G, at 1.
The Agreement refers to several other
documents and states that Plotkin “ha[s] read and underst[ood] the
general information about NOLS and its courses ... includ[ing]
NOLS’ Admission Policies, the statement titled Risk Management at
NOLS, the NOLS Enrollment Packet and other material provided by
NOLS describing or related to [his] program.”
Id. at 2.
The
Agreement also contained a clause providing that “[a]ny dispute
between [Plotkin] ... and NOLS will be governed by the substantive
laws ... of the State of Wyoming, and any mediation or suit shall
occur or be filed only in the State of Wyoming.”
Id. at 4.
Plotkin further agreed that the terms of the Agreement would “be
binding
upon
administrators.”
[him],
[his]
heirs,
estate,
executors
and
Id.
On September 3, 2011, Plotkin began a thirty-day hike near the
Gori Ganga River in India, accompanied by other students and NOLS
staff.
Compl. ¶ 22.
On September 22, rainfall caused the
deterioration of trail conditions.
2
Id. ¶ 38.
During the hike,
Plotkin fell down a steep incline and is presumed dead.
Id. ¶¶ 42,
57.
On September 18, 2013, Brenner filed this action in Minnesota
state court, alleging a wrongful death claim based on negligence,
gross negligence, and willful and wanton negligence.
NOLS timely
removed, and moves to transfer venue to the United States District
Court for the District of Wyoming or, alternatively, for dismissal
on the basis of forum non conveniens.
DISCUSSION
I.
Introduction
NOLS moves to transfer under 28 U.S.C. § 1404(a), which
provides that “[f]or the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought ....”
Deciding whether to transfer under § 1404(a) in the
absence of a valid forum selection clause generally “require[s] a
case-by-case evaluation of the particular circumstances at hand and
a
consideration
interests.
of
all
relevant
factors,”
including
private
Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688,
691 (8th Cir. 1997) (citations omitted).
However, “[w]hen the
parties have agreed to a valid forum-selection clause, a district
court should ordinarily transfer the case to the forum specified in
that clause.”
Atl. Marine Constr. Co. v. U.S. Dist. Court for the
3
W. Dist. of Tex., 134 S. Ct. 568, 581 (2013).
Here, the parties
contest the validity and applicability of both the Agreement and
the forum selection clause it contains.
II.
Choice of Law
As a threshold matter, Brenner relies on Minnesota law, while
NOLS argues that Wyoming law governs the dispute as a result of the
composite
choice-of-law
Agreement.1
and
forum
selection
clause
in
the
However, “[e]ven in the face of a general, contractual
choice-of-law
provision
...
[i]f
the
parties
wish
for
the
application of another state’s law concerning ... procedural and
remedial matters, they must expressly state it in their agreement.”
Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 596
(8th Cir. 2007) (citations omitted).
In other words, because the
clause does not expressly provide for the application of Wyoming
law to choice-of-law, Wyoming law does not automatically control
the inquiry.
In diversity cases, the court applies “the choice of law
principles of the state in which the district court is located.”
Highwoods Props., Inc. v. Exec. Risk Indem., Inc., 407 F.3d 917,
920
(8th
Cir.
2005)
(citation
omitted).
“[A]
choice-of-law
determination is made on an issue-by-issue, and not case-by-case,
1
The Agreement provides that, “any dispute between [Plotkin] ...
and NOLS will be governed by the substantive law (not including the
laws which might apply the laws of another jurisdiction) of the
State of Wyoming.” Barton Aff. Ex. G, at 4.
4
basis.”
Zaretsky v. Molecular Biosys., Inc., 464 N.W.2d 546, 548
(Minn. Ct. App. 1990) (citation omitted).
“Before applying the
forum state’s choice-of-law rules, however, a trial court must
first determine whether a conflict exists.” Prudential Ins. Co. of
Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir. 2007) (citation
omitted).
A conflict of law exists if choosing the law of one
state over the law of another state will determine the outcome of
the case.
Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 590
N.W.2d 670, 672 (Minn. Ct. App. 1999), aff’d, 604 N.W.2d 91 (Minn.
2000).
Brenner opposes the instant motion and argues that (1) the
Agreement is invalid because it lacks independent consideration;
(2) the Agreement and its forum selection clause are unenforceable
against her as a non-party to the contract and as trustee to
Plotkin’s heirs and next-of-kin; (3) the forum selection clause is
invalid because it is a contract of adhesion and (4) the forum
selection clause is inapplicable to tort claims. Because the court
finds
no
conflict
determinative
between
issue
Minnesota
relating
and
to
Wyoming
contract
law
on
any
validity
or
interpretation, a choice of law need not be made with regard to the
first two arguments and the court applies Minnesota law.
explained
below, the
argument, which
clause,
and
court
applies
federal
law
to
the
As
third
concerns enforceability of the forum selection
refers
to
Minnesota
5
law
in
a
limited
contract
interpretation inquiry.
64, 78 (1938).
See Erie R.R. Co. v. Tompkins, 304 U.S.
Finally, as explained below, the court applies
Wyoming law to resolve the fourth argument, which relates to
interpretation of the forum selection clause.
III.
Enforceability of the Contract
A.
Validity
Brenner first argues that the Agreement is invalid for lack of
independent consideration. NOLS responds that the Agreement is one
of several documents that together constitute the contract between
Plotkin and NOLS and that consideration exists for the contract as
a whole.
As
The court agrees.
already
explained,
the
court
applies
Minnesota
law.
Formation of a contract requires “a specific and definite offer,
acceptance, and consideration.” Thomas B. Olson & Assocs., P.A. v.
Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn. Ct. App.
2008)
(citations
and
internal
quotation
marks
omitted).
“Consideration may consist of either a benefit accruing to a party
or a detriment suffered by another party.”
Id. at 919 (citations
and internal quotation marks omitted). It is well-established that
a contract may consist of more than one document.
See S O Designs
USA, Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 54 (Minn. Ct. App.
2000); see also In re Le Borius’ Estate, 28 N.W.2d 157, 208 (Minn.
1947) (“[W]here it is sought to make out a contract by resorting to
two or more separate writings, the connection must appear from the
6
writings themselves ....” (citation and internal quotation marks
omitted)).
Here, the Agreement included Plotkin’s representation that he
“read and underst[ood] ... NOLS’ Admission Policies, the statement
titled Risk Management at NOLS, the NOLS Enrollment Packet and
other material provided by NOLS,”
Barton Aff. Ex. G, at 2,
rendering those documents part of the Agreement.
Plotkin received
several benefits from the Agreement in the form of college credit
and participation in the program.
See Compl. ¶ 14.
In return,
Plotkin’s father paid tuition and other expenses charged by NOLS.
See Barton Aff. Ex. H.
Such benefits and detriments constitute
valid consideration for the Agreement.
As a result, Brenner’s
argument is without merit.
B.
Applicability to Non-Party Wrongful Death Trustee
Brenner next argues that, as trustee to Plotkin’s heirs and
next-of-kin, she was not a party to the Agreement and therefore is
not bound by its terms, including the forum selection clause. NOLS
responds
that
the
Agreement
binds
Plotkin’s
heirs
and,
by
extension, Brenner as their representative.
In a diversity action, a federal court “is obligated to apply
state law as declared by statute or by opinion of the state’s
highest court.”
Wilson v. Colonial Penn Life Ins. Co., 454 F.
Supp. 1208, 1211 n.4 (D. Minn. 1978) (citing Erie R.R. v. Tompkins,
304 U.S. 64 (1938)).
In the absence of a statute or a decision of
7
such a court, the court must predict the ruling that the state’s
highest court would adopt.
As
already
explained,
Id.
the
court
applies
Minnesota
law.
Minnesota law is silent, however, as to whether a trustee such as
Brenner is bound by a forum selection clause consented to by a
decedent.
Minnesota courts have, however, enforced an exculpatory
agreement entered into by a decedent against the trustee for the
heirs and next-of-kin of the decedent.
See Dailey ex rel. Tabriz
v. Sports World S., Inc., No. A03-127, 2003 WL 22234699, at *1-5
(Minn. Ct. App. Sept. 30, 2003), aff’d, 683 N.W.2d 302 (Minn.
2004).
Further, it is well-established that a decedent may bind
his heirs by contract in certain circumstances.
v. Patch, 101 N.W. 792, 794 (Minn. 1904).
See, e.g., Tingue
Indeed, the plain
language of the Agreement indicates that it was intended to bind
Plotkin’s heirs.
argument
that
See Barton Aff. Ex. G, at 4.
the
Agreement
is
not
As a result, the
binding
on
Brenner
is
unavailing.
IV.
Enforceability of the Forum Selection Clause
A.
Validity
Brenner next argues that the forum selection clause itself is
unenforceable.
Specifically, Brenner argues that the clause is
unenforceable because it is a contract of adhesion and because it
is unconscionable.
8
The Eighth Circuit “has expressed its inclination to find that
federal law governs resolution of [the enforceability of a forum
selection clause] in diversity cases.”
U.S. Bank Nat’l Ass’n v.
San Bernardino Pub. Emps.’ Ass’n, No. 13-2476, 2013 WL 6243946, at
*2 (D. Minn. Dec. 3, 2013) (citations omitted); see also Atl.
Marine, 134 S. Ct. at 579-80.
Further, “[t]he parties do not argue
that the outcome differs depending on the law applied, and so the
[c]ourt evaluates the clause under federal law.”
U.S. Bank Nat’l
Ass’n, 2013 WL 6243946, at *2 (citation omitted).
“Forum selection clauses are prima facie valid and are enforced
unless they are unjust or unreasonable or invalid for reasons such
as fraud or overreaching.”
M.B. Rests., Inc. v. CKE Rests., Inc.,
183 F.3d 750, 752 (8th Cir. 1999) (citing M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 15 (1972)).
When “the forum selection
clause is the fruit of an arm’s-length negotiation, the party
challenging the clause bears an especially heavy burden of proof to
avoid its bargain.”
Servewell Plumbing, LLC v. Fed. Ins. Co., 439
F.3d 786, 789 (8th Cir. 2006) (citation and internal quotation
marks
omitted).
unreasonable
if:
“A
(1)
forum
the
selection
clause
is
the
clause
is
product
of
unjust
or
fraud
or
overreaching; (2) the party would effectively be deprived of his
day in court if the clause is enforced; and (3) enforcing the
clause would contravene the public policy of the forum in which
suit is brought.”
St. Jude Med., S.C., Inc. v. Biosense Webster,
9
Inc., No. 12–621, 2012 WL 1576141, at *3 (D. Minn. May 4, 2012)
(citations omitted).
“[T]he forum clause should control, absent a
strong showing that it should be set aside by the party resisting
enforcement.”
U.S. Bank Nat’l Ass’n, 2013 WL 6243946, at *2
(citation and internal quotation marks omitted).
Brenner first argues that the forum selection clause is
invalid because it is a contract of adhesion.
Specifically,
Brenner argues that NOLS presented the Agreement on a take-it-orleave-it basis and that Plotkin’s signature was the result of
unequal bargaining power.
Adhesion contracts are “imposed on the
public for [a] necessary service on a ‘take it or leave it’
basis.”2
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924 (Minn.
1982) (emphasis in original).
“Even though a contract is on a
printed form and offered on a ‘take it or leave it’ basis, those
facts alone do not cause it to be an adhesion contract.”
Id.
“There must be a showing that the parties were greatly disparate in
bargaining power, that there was no opportunity for negotiation and
that the services could not be obtained elsewhere.”
Id. at 924-25
(emphasis in original) (citations omitted).
2
Although enforceability of a forum selection clause is governed
by federal law, issues involving contract interpretation - which
are part of the enforceability inquiry - are governed by state
substantive law. See Haines v. St. Charles Speedway, Inc., 874
F.2d 572, 574 (8th Cir. 1989). As already explained, because the
court finds no conflict on any determinative issue between
Minnesota and Wyoming law, the court applies Minnesota law to
questions of contract interpretation.
10
Here, Brenner argues that Plotkin was a college student and
that
NOLS
is
a
corporation
with
comparatively greater sophistication.
allege
that
there
was
fraud
or
substantial
resources
and
Brenner does not, however,
coercion,
that
Plotkin
unsuccessfully sought to negotiate the clause or that NOLS insisted
upon its inclusion.
Indeed, NOLS states that in response to
previous requests by participants, “NOLS has negotiated and in many
instances has agreed to change terms of an agreement, including the
indemnification and forum-selection provisions.” Second Robertson
Decl. ¶ 3.
Further, Plotkin was in no way obligated to enroll in
the NOLS course or agree to the terms of the Agreement, and Brenner
has not argued that he could not have obtained the services offered
by NOLS elsewhere.
Nor does Brenner argue that NOLS provided a
necessary service.
As a result, the forum selection clause is not
a contract of adhesion.
Brenner next argues that the contract is ambiguous because it
refers to “any dispute.”
Brenner does not explain, however, any
way in which such language is ambiguous, and such an argument is
also without merit.
See Anderson v. McOskar Enters., Inc., 712
N.W.2d 796, 800-01 (Minn. Ct. App. 2006).
Finally, Brenner argues
that enforcement of the forum selection clause would violate the
public
policy
unavailing.
of
Minnesota.
Such
an
argument,
however,
is
See Hauenstein & Bermeister, Inc. v. Met-Fab Indus.,
Inc., 320 N.W.2d 886, 889 (Minn. 1982) (“In support of the modern
11
rule, persuasive public policy reasons exist for enforcing a forum
selection clause in a contract freely entered into by parties who
have negotiated at arm’s length.”). As a result, the argument that
the forum selection clause is invalid fails.
B.
Applicability to Non-Contract Claims
Brenner next argues that the forum selection clause does not
apply to the instant dispute.
Specifically, Brenner argues that
her tort claims relate to duties owed by NOLS that do not arise
from the Agreement, and therefore the terms of the Agreement do not
govern the action.
In a transfer analysis, “a district court ... must decide
whether the [forum selection] clause applies to the type of claims
asserted in the lawsuit.”
Terra Int’l, 119 F.3d at 692.
Thus, the
court interprets the forum selection clause to determine its
applicability to the instant dispute.
Although enforceability of
a forum selection clause is analyzed under federal law, where there
exist both valid forum selection and choice-of-law clauses, the
substantive law identified in the choice-of-law clause governs
interpretation of the forum selection clause. See Atl. Marine, 134
S. Ct. at 581 (observing that lower court “erred in failing to make
the adjustments required ... when the transfer motion is premised
on a forum-selection clause); Martinez v. Bloomberg LP, 740 F.3d
211, 220 (2d Cir. 2014) (“[C]ourts must apply the law contractually
chosen by the parties to interpret the [forum selection] clause.”).
12
But see Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d
594, 596-97 (8th Cir. 2007).
As already explained, the composite
forum selection and choice-of-law clause in the Agreement is valid.
As a result, in interpreting the forum selection clause the court
applies Wyoming law - the law provided for by the clause.
“Whether tort claims are to be governed by forum selection
provisions depends upon the intention of the parties reflected in
the wording of particular clauses and the facts of each case.”
Terra Int’l, 119 F.3d at 693 (citation and internal quotation marks
omitted).
The court “interpret[s] contracts to effectuate the
parties’ intention, as expressed in the language of the agreement.”
Hunter v. Reece, 253 P.3d 497, 503 (Wyo. 2011) (citation and
internal quotation marks omitted). Contract language must be given
its “plain and ordinary meaning.”
Comet Energy Servs., LLC v.
Powder River Oil & Gas Ventures, LLC, 185 P.3d 1259, 1261 (Wyo.
2008) (citations omitted).
Here, the Agreement provides that “any mediation or suit”
between Plotkin and NOLS “shall occur or be filed only in the State
of
Wyoming”
and
contains
negligence actions.
no
exception for
wrongful
death or
Barton Aff. Ex. G, at 4 (emphasis added).
Such language indicates that the parties intended the contract,
including its forum selection clause, to apply to actions such as
the instant dispute.
Cf. Jackson State Bank v. Homar, 837 P.2d
1081, 1089 (Wyo. 1992) (enforcing broadly-worded clause compelling
13
arbitration
for
“any
dispute
arising
from
[the
parties’]
relationship as landlord and tenant”). Indeed, the Wyoming Supreme
Court has stated that “artful pleading of noncontract claims to
avoid a forum selection clause will not be tolerated.”
Durdahl v.
Nat’l Safety Assocs., Inc., 988 P.2d 525, 529 (Wyo. 1999) (citation
omitted).
As
a
result,
the
forum
selection
clause
is
both
enforceable and applicable to the instant dispute.
V.
Effect of Forum Selection Clause
Having determined the validity and scope of the Agreement and
the forum selection clause, the court now considers the effect of
such a clause on the instant dispute.
“The presence of a valid
forum-selection clause requires district courts to adjust their
usual
§ 1404(a) analysis in three ways.”
at 581.
Atl. Marine, 134 S. Ct.
“First, the plaintiff’s choice of forum merits no weight.
Rather, as the party defying the forum-selection clause, the
plaintiff bears the burden of establishing that transfer to the
forum for
which
the
parties
bargained is
unwarranted.”
Id.
Second, the court “should not consider arguments about the parties’
private interests.”
Id. at 582.
Thus, though Brenner makes
numerous arguments related to her convenience and relative ability
to pay for distant litigation, the court may not consider such
factors.
Instead, the court “may consider arguments about public-
interest factors only ... [and] those factors will rarely defeat a
transfer motion.”
Id.
Relevant public interest factors include
14
“the administrative difficulties flowing from court congestion; the
local interest in having localized controversies decided at home;
[and] the interest in having the trial of a diversity case in a
forum that is at home with the law.”
Id. at 581 n.6 (citation and
internal quotation marks omitted).
Here, Brenner has not argued that transfer would produce any
administrative
hardship
in
Wyoming
or
that
presents a controversy localized in Minnesota.
the
instant
case
Nor does she argue
against the benefit of having a trial governed by Wyoming law
decided in a forum more familiar with its application.3
Thus,
these factors are either neutral or favor transfer to Wyoming.
Third, there are no unusual or exceptional circumstances that
warrant setting aside the clause.
See id. at 575 (2013) (finding
that, where there is a valid forum selection clause, “a district
court should transfer the case unless extraordinary circumstances
... clearly disfavor a transfer”).
Brenner thus cannot meet her
burden of establishing that transfer to Wyoming is improper.
Finally, the court notes that the forum selection clause does not
specify that actions must be brought in federal court in the
District of Wyoming, but rather that suits “shall occur or be filed
only in the State in Wyoming.”
Barton Aff. Ex. G, at 4.
3
“The fact
Because the court determines that transfer to the District of
Wyoming is proper as a result of the forum selection clause, the
transfer “will not carry with it the original venue’s choice-of-law
rules.” Atl. Marine, 134 S. Ct. at 582 (citation omitted).
15
that the provision does not specify federal or state court does not
make it invalid, but rather allows suit to be brought in either
court.”
Mooney-Kelly v. Islands Publ’g Co., No. 01-4448, 2002 WL
109533, at *3 (S.D.N.Y. Jan. 28, 2002) (citation omitted).
Thus,
the District of Wyoming is a “district or division where [the
action] might have been brought.”
See 28 U.S.C. § 1404(a).
As a
result, transfer to the District of Wyoming is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendant’s motion to transfer venue [ECF No. 12] is granted and
this action is transferred to the United States District Court for
the District of Wyoming.
Dated:
May 19, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
16
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