GIC SERVICES, LLC v. FREIGHTPLUS (USA) INC.
Filing
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MEMORANDUM AND ORDER the Motion to Dismiss [Doc. # 19] pursuant to Rule 12(b)(1)or Rule 12(b)(3) is DENIED without prejudice to the filing by October 15, 2013, ofa Motion to Transfer pursuant to § 1404(a), addressing the relevant factors forpurp oses of the § 1404(a) analysis. Freightplus shall file any response in oppositionto the Motion to Transfer by November 1, 2013, and IMC shall file any reply byNovember 8, 2013. It is furtherORDERED that the Motion to Dismiss pursuant to Rule 12(b)(6) and theMotion for Leave to Amend Third Party Complaint [Doc. # 22] are TAKEN UNDERADVISEMENT pending a decision on the § 1404(a) issue. (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GIC SERVICES, LLC,
Plaintiff,
v.
FREIGHTPLUS (USA) INC.,
Defendant.
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CIVIL ACTION NO. H-13-0567
MEMORANDUM AND ORDER
This case is before the Court on the Motion to Dismiss [Doc. # 19] filed by
Third Party Defendant Industrial Maritime Carriers, LLC (“IMC”), to which Third
Party Plaintiff Freightplus (USA), Inc. (“Freightplus”) filed a Response [Doc. # 21].
IMC seeks dismissal pursuant to Rule 12(b)(1) or Rule 12(b)(3) of the Federal Rules
of Civil Procedure based on a forum selection clause, and pursuant to Rule 12(b)(6)
for failure to state a claim upon which relief can be granted. Having reviewed the
record and applicable legal authorities, the Court denies the Motion to Dismiss
pursuant to Rule 12(b)(1) and Rule 12(b)(3), without prejudice to filing a Motion to
Transfer pursuant to 28 U.S.C. § 1404(a).1
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The Motion to Dismiss pursuant to Rule 12(b)(6) and the Motion for Leave to
Amend Third Party Complaint [Doc. # 22] are taken under advisement pending resolution
of the § 1404(a) issue.
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I.
BACKGROUND
Plaintiff GIC Services, LLC (“GIC”) shipped a tugboat, the M/V REBEL,
(“Tugboat”) from Houston, Texas to Nigeria. GIC contracted with Freightplus to
arrange the shipment. Freightplus contracted with Yacht Path, who contracted with
IMC for the shipment. A Bill of Lading from Freightplus properly identified Lagos,
Nigeria as the Port of Discharge. See House Bill of Lading, Exh. 1 to Complaint
[Doc. # 1]. A Bill of Lading issued by IMC identified Warri, Nigeria as the Port of
Discharge. See IMC Bill of Lading, Exh. 2 to Complaint.
The Tugboat was delivered to Warri. Plaintiff filed this lawsuit against
Freightplus, asserting that the Tugboat was to be delivered to Lagos and that, despite
numerous demands for delivery of the Tugboat to Lagos, Freightplus failed to deliver
the cargo “as contracted.” See Complaint, ¶ 13. Plaintiff alleges that the failure to
deliver the Tugboat to Lagos precluded Plaintiff from complying with its obligations
under a contract with a third party to provide the Tugboat beginning in January 2013
for $40,000.00 per day. See id., ¶ 14.
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Freightplus filed a Third Party Complaint2 alleging that its Bill of Lading
properly identified Lagos as the Port of Discharge and that the IMC Bill of Lading
incorrectly listed Warri as the Port of Discharge. IMC moved to dismiss, based in part
of the forum selection clause in the IMC Bill of Lading that provides for disputes to
be “exclusively determined by the United States District Court for the Eastern District
of Louisiana.” See IMC Bill of Lading, Exh. 3 to Motion to Dismiss. The Motion to
Dismiss pursuant to Rule 12(b)(1) and/or Rule 12(b)(3) of the Federal Rules of Civil
Procedure is ripe for decision.
II.
FORUM SELECTION CLAUSE
The IMC Bill of Lading includes a forum selection clause providing that “any
dispute arising out of [the IMC Bill of Lading] shall be exclusively determined by the
United States District Court for the Eastern District of Louisiana.” See id. The Third
Party Complaint involves a dispute relating to the shipment of the Tugboat, the
shipment that is the subject of the IMC Bill of Lading. As a result, it is clear that the
claims in the Third Party Complaint involve a dispute “arising out of” the IMC Bill
of Lading.
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In the Order [Doc. # 15] granting Defendant’s Motion for Leave to File Third-Party
Complaint, the Court directed counsel for Defendant to file the Third Party Complaint as a
separate docket entry. Counsel for Defendant has failed to do so, and the Court again
ORDERS counsel for Defendant to file the Third Party Complaint as a separate docket
entry.
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Where, as here, venue would be otherwise proper in this federal district, but an
applicable forum selection clause designates a specific federal forum, “a motion to
transfer under § 1404(a) is the proper procedural mechanism for enforcing the clause.”
See In re Atlantic Marine Const. Co., Inc., 701 F.3d 736, 739 (5th Cir. 2012).
Consequently, the Court will deny the Motion to Dismiss pursuant to Rule 12(b)(1)
and Rule 12(b)(3), but will allow IMC to file a Motion to Transfer to the Eastern
District of Louisiana pursuant to § 1404(a), addressing each of the factors relevant to
the § 1404(a) analysis.
III.
CONCLUSION AND ORDER
The proper mechanism for enforcing the forum selection clause in the IMC Bill
of Lading is a motion to transfer pursuant to § 1404(a). Until such time as venue is
determined, the Court will hold under advisement IMC’s Motion to Dismiss pursuant
to Rule 12(b)(6) and Freightplus’s Motion for Leave to Amend Third Party Complaint
[Doc. # 22]. Accordingly, it is hereby
ORDERED that the Motion to Dismiss [Doc. # 19] pursuant to Rule 12(b)(1)
or Rule 12(b)(3) is DENIED without prejudice to the filing by October 15, 2013, of
a Motion to Transfer pursuant to § 1404(a), addressing the relevant factors for
purposes of the § 1404(a) analysis. Freightplus shall file any response in opposition
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to the Motion to Transfer by November 1, 2013, and IMC shall file any reply by
November 8, 2013. It is further
ORDERED that the Motion to Dismiss pursuant to Rule 12(b)(6) and the
Motion for Leave to Amend Third Party Complaint [Doc. # 22] are TAKEN UNDER
ADVISEMENT pending a decision on the § 1404(a) issue.
SIGNED at Houston, Texas, this 18th day of September, 2013.
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