Garrison v. Dann Ocean Towing, Inc.,

Filing 10

ORDER granting 8 Motion to Change Venue. The Court grants Plaintiff's motion. This action is hereby transferred to the United States District Court for the Middle District of Florida, Tampa Division pursuant to 28 U.S.C. § 1404(a). Ordered by Judge Margo K. Brodie on 4/19/2016. (Deknatel, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------DAVID GARRISON,
Plaintiff,

TRANSFER ORDER
16-CV-0147 (MKB)

v.
DANN OCEAN TOWING, INC.,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On January 12, 2016, Plaintiff David Garrison commenced the above-captioned action
pursuant to the Jones Act, 46 U.S.C. § 30104 et seq., and general maritime law, against
Defendant Dann Ocean Towing, Inc. (Compl., Docket Entry No. 1.) Plaintiff alleges that on
October 12, 2015, while working as an employee of Defendant, he was injured as a result of
being ordered to “handle unreasonably heavy” equipment without a “a safe place to work” or
“seaworthy vessel.” (Compl. ¶¶ 3–4.) On March 1, 2016, Plaintiff filed a motion to transfer
venue to the United States District Court for the Middle District of Florida, Tampa Division.1
(Pl. Mot. for Transfer (“Pl. Mot.”), Docket Entry No. 8.) For the reasons discussed below, the
Court grants Plaintiff’s application and transfers this action to the Middle District of Florida,
Tampa Division.
I.

Background
In his transfer request, Plaintiff states that the parties had previously agreed to litigate

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Plaintiff has not filed proof of service of the summons and Complaint on Defendant.
Defendant has not answered the Complaint, responded to Plaintiff’s motion, or otherwise
appeared in this action.

matters in the Middle District of Florida, Tampa Division. (Pl. Mem. in Supp. of Pl. Mot. (“Pl.
Mem.”) at 1, Docket Entry No. 9.) In support of his application, Plaintiff attached a letter from
counsel for Defendant, which requested that the action be transferred. (Def. Transfer Letter,
annexed to Decl. of Dennis M. O’Bryan (“O’Byran Decl.”), Docket Entry No. 9.) Plaintiff also
filed a “jurisdiction agreement” signed on December 28, 2010 by Plaintiff and Lou Heller, on
behalf of Defendant, which states that “any dispute” including a “claim of negligence, injury or
death . . . that arises during or after [Plaintiff’s] employment with [Defendant] . . . shall be
litigated” in a court in Hillsborough County, Florida “to the exclusion of courts” elsewhere (the
“Forum Selection Agreement”). (Forum Selection Agreement at 1, annexed to O’Byran Decl.,
Docket Entry No. 9.)
II. Discussion
“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.”
28 U.S.C. § 1404(a). Typically, a district court considering a request to transfer venue pursuant
to section 1404(a) “must evaluate both the convenience of the parties and various public-interest
considerations” to determine whether transfer is warranted. Atl. Marine Constr. Co. v. U.S. Dist.
Court for W. Dist. of Tex., 562 U.S. ---, ---, 134 S. Ct. 568, 581 (2013) (explaining that, typically,
the plaintiff’s choice of forum is entitled to “some weight” and the burden rests with the movant
to overcome that weight by showing the parties’ private interests and other public-interest
considerations weigh in favor of transfer).
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” and should only
deny a section 1404(a) motion “under extraordinary circumstances unrelated to the convenience

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of the parties.” Id. When the parties have a valid forum selection clause, a plaintiff’s choice of
forum “merits no weight” and the parties’ private interests should receive no weight, as they
have agreed to litigate in a specified forum. Id. at 581–82. Furthermore, the plaintiff, as the
party flouting the chosen forum, bears the burden of demonstrating that public-interest factors
merit transfer. Id. at 583 (explaining that such factors “will rarely defeat a transfer motion,” and
a district court “should ordinarily transfer the case to the forum specified” in the parties’
agreement).
“Questions of venue and the enforcement of forum selection clauses are essentially
procedural, rather than substantive, in nature, and therefore should be governed by federal law.”
Martinez v. Bloomberg LP, 740 F.3d 211, 220 (2d Cir. 2014) (internal quotation marks and
citation omitted); see Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S. Ct. 981 (1994)
(“[V]enue is a matter that goes to process rather than substantive rights . . . .”). “To determine if
the forum selection clause applies to a particular claim, the Court must examine the claims
‘shorn of their labels.’” Allianz Global Corporate & Specialty v. Chiswick Bridge,
No. 13-CV-7559, 2014 WL 4674644, at *4 (S.D.N.Y. Sept. 19, 2014) (quoting Phillips v. Audio
Active Ltd., 494 F.3d 378, 389–90 (2d Cir. 2007)); see also Roby v. Corp. of Lloyd’s, 996 F.2d
1353, 1361 (2d Cir.1993) (noting the “strong public policy in favor of forum selection and
arbitration clauses”); Paduano v. Express Scripts, Inc., 55 F. Supp. 3d 400, 431–33 (E.D.N.Y.
2014) (“[T]he Second Circuit has endorsed an expansive reading of the scope of forum selection
clauses, in keeping with the public policy favoring their use.” (internal quotation marks and
citation omitted)). “This approach is consistent with the focus on factual allegations rather than
on the causes of action asserted when deciding whether [a forum selection clause] applies to
particular claims.” Phillips, 494 F.3d at 388–89.

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Plaintiff’s claim that he was injured on the job falls within the “negligence, injury or
death” provision of the Forum Selection Agreement. Plaintiff seeks transfer of this action and
Defendant appears to consent to the transfer. The Court therefore grants Plaintiff’s motion. This
action is hereby transferred to the United States District Court for the Middle District of Florida,
Tampa Division pursuant to 28 U.S.C. § 1404(a).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: April 19, 2016
Brooklyn, New York

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