American Airlines Inc v. Travelport Limited et al

Filing 114

ORDER DENYING MOTION TO DISMISS OR TRANSFER...denying #34 Motion to Dismiss filed by Travelport Limited and Travelport, LP. [see Order for specifics] (Ordered by Judge Terry R Means on 7/26/2011) (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES, INC.
VS.
TRAVELPORT LIMITED, et al.

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CIVIL ACTION NO. 4:11-CV-244-Y

ORDER DENYING MOTION TO DISMISS OR TRANSFER
Before the Court is the Motion to Dismiss or Transfer (doc.
34) filed by defendants Travelport Limited and Travelport, LP
(collectively, “Travelport”).

By the motion, Travelport seeks an

order dismissing or transferring this case pursuant to Federal Rule
of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a).1

According to

Travelport, the instant case arises out of a contract amendment
entitled “Preferred Fares Amendment” (“PFA”) entered into between
plaintiff

American

International,

Airlines,

L.L.C.,

one

interest, on July 5, 2006.

Inc.
of

(“American”),

Travelport’s

and

Galileo

predecessors-in-

Travelport explains that the PFA

contains a forum-selection clause requiring all actions arising out
1

Rule 12(b)(3) and § 1406(a) are the procedural vehicles for dismissing
or transferring an action that has been brought in an improper forum. See Fed.
R. Civ. P. 12(b)(3); Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d 898,
902 (5th Cir. 2005); Chapman v. Dell, Inc., No. EP-09-CV-7-KC, 2009 WL 1024635,
at *3 (W.D. Tex. Apr. 15, 2009). In contrast, where an action has been brought
in a forum that is “proper” within the meaning of the federal venue statutes, §
1404(a) serves as the vehicle for transferring the action to a more convenient
forum. See 28 U.S.C. § 1404(a); Chapman, 2009 WL 1024635, at *4. The United
States Court of Appeals for the Fifth Circuit has not decided whether a mandatory
forum-selection clause (i.e., one that prohibits bringing suit in any court other
than the one stipulated to by the parties) renders an otherwise proper venue
improper. See Chapman, 2009 WL 1024635, at *3. Thus, were the Court to grant
Travelport’s motion, it is unclear whether § 1406(a) or § 1404(a) would be the
appropriate procedural vehicle for transfer. The Court need not resolve this
question, however, in light of its determination (set out below) that the forumselection clause underlying Travelport’s motion does not apply to this case.

of the PFA to be brought in a federal or state court in Cook
County, Illinois.
American contends that the instant case did not arise out of
the PFA and, therefore, is outside the scope of the PFA’s forumselection clause. According to American, this case is much broader
than the PFA, as it challenges a great number of Travelport’s
actions, as well as those of other defendants.

American contends

that the “most-favored-nation provision” of the PFA is but one
example of the type of anti-competitive conduct in which Travelport
and the other defendants have engaged. Moreover,

American points

to a number of other contracts related to this action that contain
forum-selection clauses inconsistent with the one found in the PFA.
To determine whether the instant case is governed by the
forum-selection clause in the PFA, the Court “must look to the
language of the parties’ contract.” Dos Santos v. Bell Helicopter
Textron, Inc., 651 F. Supp. 2d 550, 557 (N.D. Tex. 2009) (Means,
J.) (quoting Marinechance Shipping v. Sebastion, 143 F.3d 216, 222
(5th Cir. 1998)) (internal quotation marks omitted).

“If the

substance of the plaintiff’s claims, stripped of their labels, does
not fall within the scope of the forum selection clause, the clause
cannot

apply.”

Soil

Bldg.

Sys.

v.

CMI

Terex

Corp.,

No.

3:04-CV-0210-G, 2004 WL 1283966, at *4 (N.D. Tex. June 9, 2004)
(Fish,

C.J.) (quoting Roby v. Corp. of Lloyd’s, 996 F.2d 1353,

1361 (2d Cir. 1993)) (internal quotation marks omitted).

2

After review, the Court agrees with American that the PFA’s
forum-selection clause does not apply to this case.
case

involves

claims

against

multiple

The instant

defendants

for

alleged

violations of sections one and two of the Sherman Act, as well as
Texas law. American is not suing Travelport for breach of the PFA,
nor do its claims otherwise center around the PFA.

To the

contrary, American’s complaint describes a multitude of anticompetitive and exclusionary practices that have allegedly occurred
on an industry-wide scale.
Indeed, there are a number of allegations in American’s
complaint that have little or nothing to do with the PFA.
example,

American

alleges

that

Travelport

took

a

For

number

of

retaliatory actions against it for pursuing its “Direct Connect”
technology,

including

doubling

American’s

booking

fees

adversely misrepresenting American’s flight information.
Compl. 26-27, ¶¶ 96-100.)
American

alleges

that

and
(Am.

In addition, as another example,

defendants

Sabre,

Inc.;

Sabre

Holdings

Corporation; and Sabre Travel International Limited (collectively,
“Sabre”), have refused to do business with American unless American
foregoes its use of “Direct Connect.”

(Id. at 5-6, ¶¶ 14-15.)

Reinforcing the Court’s conclusion that this case does not
arise out of the PFA is the fact that there are multiple other
contracts relevant to this case containing forum-selection clauses
inconsistent with the one in the PFA.

3

For instance, in the

Worldspan Content Agreement between American and Worldspan, L.P.,
one of Travelport’s predecessors, the parties “consent[ed] to the
non-exclusive jurisdiction of the courts . . . in Georgia and Texas
to resolve any dispute arising out of this Agreement.”

(Pl.’s

Resp. App. 12.)
In short, the “substance” of American’s claims is outside the
scope of the PFA’s forum-selection clause.
2004 WL 1283966, at *4.

See Soil Bldg. Sys.,

Accordingly, Travelport’s motion to

dismiss or transfer is DENIED.2
SIGNED July 26, 2011.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

2

In light of this ruling, the Court need not address Travelport’s
argument concerning the recovery of fees and costs in connection with its motion.

TRM/dc

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