Javeler Marine Services LLC v. Cross et al

Filing 38

MEMORANDUM AND ORDER DENIED 27 Opposed MOTION to Dismiss Opposed MOTION to Transfer Case to Western District of Louisiana, DENIED 8 MOTION to Dismiss for Lack of Personal Jurisdiction. ( Joint Discovery/Case Management Plan due by 1/5/2015., Status Conference set for 1/12/2015 at 01:30 PM in Courtroom 9F before Judge Nancy F. Atlas)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JAVELER MARINE SERVICES,
LLC,
Plaintiff,
v.
VILLERE CROSS and
MATTHEWS MARINE, INC.
OF MISSISSIPPI,
Defendants.

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CIVIL ACTION NO. H-14-0670

MEMORANDUM AND ORDER
This contract and tort dispute is before the Court on the separate motions to
dismiss for lack of personal jurisdiction filed by Defendants Villere Cross (“Cross”)
and Matthews Marine, Inc. (“Matthews Marine”)1 (collectively, “Defendants”). Cross
also seeks dismissal for improper venue, or, in the alternative, to transfer venue
pursuant to 28 U.S.C § 1404(a). These motions are ripe for review.2 Having carefully
1

Plaintiff Javeler Marine Services, LLC (“Javeler”) sued Matthews Marine as
“Matthews Marine, Inc. of Mississippi.” Matthews Marine clarifies that its name does not
include “of Mississippi.” See Matthews Marine, Inc.’s Motion to Dismiss for Lack of
Personal Jurisdiction [Doc. # 8], at 1.
2

Matthews Marine filed a Motion to Dismiss for Lack of Personal Jurisdiction
(“Matthews Marine’s Motion”) [Docs. # 8 and # 8-1], to which Javeler responded (“Javeler’s
Response to Matthews Marine”) [Docs. # 35 and # 35-1], and Matthews Marine replied
(“Matthews Marine’s Reply”) [Doc. # 36]. Cross filed a Motion to Dismiss Based on Lack
of Personal Jurisdiction, Motion to Dismiss Based on Improper Venue and, in the
(continued...)
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considered the parties’ briefing, the evidence in the record, and the applicable legal
authorities, the Court denies Matthews Marine’s Motion and denies Cross’s Motion.
I.

BACKGROUND
A.

Facts

Javeler is a Texas company that specializes in dredging services and works on
projects throughout the Gulf Coast region. Plaintiff’s Original Complaint and
Application for Injunctive Relief (“Complaint”) [Doc. # 1], ¶¶ 1-2. Matthews Marine
is a Mississippi company that competes with Javeler for projects in the Gulf Coast
region. Id., ¶¶ 3, 15; Affidavit of Thomas B. Matthews dated Nov. 7, 2014 (“Nov.
2014 Matthews Affidavit”) [Doc. # 36-1], ¶¶ 2-3. Cross is an individual residing in
Louisiana who worked for Javeler as a “Business Development and Project Manager”
from September 10, 2010 to January 11, 2013. Complaint, ¶¶ 10, 12; Affidavit of
Villere J. Cross (“Cross Affidavit”) [Doc. # 27-2], ¶¶ 8, 12. In a letter dated
December 27, 2012, Cross resigned from Javeler to begin working for Matthews
Marine. Complaint, ¶¶ 15-16; Separation Letter [Doc. # 34-2], at ECF pages 7-8.
On December 12, 2012, approximately two weeks prior to Cross’s resignation,

2

(...continued)
Alternative, Motion to Transfer Venue (“Cross’s Motion”) [Docs. # 27 and # 27-1], to which
Javeler responded (“Javeler’s Response to Cross”) [Docs. # 34 and # 34-1], and Cross replied
(“Cross’s Reply”) [Doc. # 37]. The Court cites to the memorandums filed in support of the
motions and responses.
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2

Cross and Javeler signed a Confidentiality Agreement stating that all of Javeler’s
confidential information would remain the property of Javeler, Cross would return
confidential information to Javeler at the end of his employment, Cross would keep
Javeler’s information strictly confidential, and Cross would not use Javeler’s
information for any purpose in any manner other than for Javeler’s benefit.
Confidentiality Agreement [Doc. # 34-2], at ECF page 5, ¶ 1. The Confidentiality
Agreement provided for Louisiana law as the governing law and that “[a]ny suit,
action, or proceeding arising out of this Agreement shall be brought in either the
United States District Court, Southern District of Texas, located in Harris County,
Texas or in the state courts of the State of Texas, in Harris County.” Id., at ECF
page 6, ¶ 5. This dispute arises out of Javeler’s contentions that Cross and Matthews
Marine violated the Confidentiality Agreement and committed various torts by
improperly using Javeler’s confidential information to bid on dredging projects in the
Gulf Coast.
B.

Procedural History

On March 17, 2014, Javeler filed this lawsuit against Cross and Matthews
Marine in the Southern District of Texas. Javeler sues Cross for breach of the
Confidentiality Agreement, breach of fiduciary duty, breach of the duty of loyalty,
breach of confidence, violations of the Louisiana Unfair Trade Practices Act

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3

(“LUTPA”), violations of the Louisiana Uniform Trade Secret Act (“LUTSA”), and
conspiracy. Complaint, ¶¶ 21-37, 43-45. Javeler sues Matthews Marine for violations
of LUTPA and LUTSA, unjust enrichment, tortious interference with existing
contracts, conspiracy, and aiding and abetting. Id., ¶¶ 34-51.
IV.

MATTHEWS MARINE’S RULE 12(b)(2) MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION
A.

Personal Jurisdiction Standard

“In diversity cases under 28 U.S.C. § 1332, the exercise of personal jurisdiction
over a non-resident defendant must comport with both federal constitutional due
process requirements and the long-arm statute of the state in which the district court
is located.” Companion Prop. & Cas. Ins. Co. v. Palermo, 723 F.3d 557, 559 (5th Cir.
2013); accord Clemens v. McNamee, 615 F.3d 374, 378 (5th Cir. 2010). Only one
inquiry is required in Texas since the long-arm statute extends to the limits of federal
constitutional due process.

Palermo, 723 F.3d at 559.

The constitutional

requirements are satisfied if the nonresident purposefully availed itself of the benefits
and protections of the forum state by establishing minimum contacts there such that
it could reasonably anticipate being haled into court in the forum state, and if the
exercise of jurisdiction does not offend traditional notions of fair play and substantial
justice. J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 2787-88 (2011);
Clemens, 615 F.3d at 378.
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The plaintiff bears the ultimate burden of showing that the nonresident
defendant is subject to personal jurisdiction in the forum state. Ainsworth v. Moffett
Eng’g, Ltd., 716 F.3d 174, 176 (5th Cir. 2013); Clemens, 615 F.3d at 378. On a
motion to dismiss decided without an evidentiary hearing, the plaintiff need only make
a prima facie showing of personal jurisdiction. Palermo, 723 F.3d at 559; Clemens,
615 F.3d at 378. “‘[T]he court must accept as true all uncontroverted allegations in
the complaint and must resolve any factual disputes in favor of the plaintiff.’”
Ainsworth, 716 F.3d at 176 (quoting ITL Int’l, Inc. v. Constenla, S.A., 669 F.3d 493,
496 (5th Cir. 2012)).
Minimum contacts with Texas may result in a federal court’s “general” or
“specific” jurisdiction over a nonresident defendant. See Clemens, 615 F.3d at 378.
“A court may assert general jurisdiction over foreign (sister-state or foreign-country)
corporations to hear any and all claims against them when their affiliations with the
State are so ‘continuous and systematic’ as to render them essentially at home in the
forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2851 (2011).
“The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant focuses on the relationship among the defendant, the forum,
and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (internal quotation

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marks and citations omitted). Courts must determine whether “there was ‘some act
by which the defendant purposefully avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.’” Goodyear Dunlop Tires Operations, S.A., 131 S. Ct. at 2854 (quoting Hanson
v. Denckla, 357 U.S. 235, 253 (1958)) (alteration in original). “[T]he defendant's
suit-related conduct must create a substantial connection with the forum State.”
Walden, 134 S. Ct. at 1121; Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th
Cir. 2014).
The Fifth Circuit recently clarified that courts should apply a three-step analysis
for the specific jurisdiction inquiry: “‘(1) whether the defendant has minimum
contacts with the forum state, i.e., whether it purposely directed its activities toward
the forum state or purposefully availed itself of the privileges of conducting activities
there; (2) whether the plaintiff’s cause of action arises out of or results from the
defendant’s forum-related contacts; and (3) whether the exercise of personal
jurisdiction is fair and reasonable.’” Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429,
432 (5th Cir. 2014) (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266,
271 (5th Cir. 2006)). The plaintiff bears the burden of proof for the first two prongs
of the analysis, and the burden then shifts to the defendant to show that exercising
jurisdiction would be unfair or unreasonable. Id.

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B.

Matthews Marine’s Contacts with Texas

Matthews Marine does not dispute that it bids and performs jobs in Texas. See
Matthews Marine’s Motion, at 3; Nov. 2014 Matthews Affidavit, ¶¶ 6-16; Affidavit
of Thomas B. Matthews dated Apr. 1, 2014 (“Apr. 2014 Matthews Affidavit”) [Doc.
# 8-2], ¶¶ 21-22. Matthews Marine admits that it worked on several projects in Texas
from 2010 to 2013. Apr. 2014 Matthews Affidavit, ¶¶ 21-22. Some of this work was
performed as a subcontractor for Javeler’s predecessor, Javeler Marine Construction
Co., Inc. Id., ¶ 21. Matthews Marine bid the Texas-based Sherwin Alumina project
in 2013. Nov. 2014 Matthews Affidavit, ¶ 6. See Affidavit of Christopher Kahn
(“Kahn Affidavit”) [Doc. # 35-2], ¶ 12 (clarifying that this job was in Texas and
stating “I also traveled to Texas to bid the Sherwin Alumina job on behalf of
Javeler”).3 As recently as April 2014, Matthews Marine bid the Texas-based
OxyChem project and performed dredging work for OxyChem in July and August
2014. Nov. 2014 Matthews Affidavit, ¶¶ 10-12.
Javeler alleges that Matthews Marine used Javeler’s confidential information

3

Matthews Marine contends that portions of the Kahn Affidavit and the Affidavit of
Adam C. Zylman (“Zylman Affidavit”) [Doc. # 35-5] should be stricken as inadmissible
hearsay. See Matthews Marine’s Reply, at 18-19. The alleged hearsay statements are
portions of different paragraphs. The Court cites to some aspects of these affidavits, but does
not rely on any of the alleged hearsay statements. Accordingly, Matthews Marine’s request
to strike statements from the Kahn and Zylman Affidavits as inadmissible hearsay is denied
as moot.
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to bid and perform projects in the Gulf Coast. For minimum contacts purposes,
Javeler highlights two Texas projects, the Sherwin Alumina and OxyChem projects,
for which Matthews Marine allegedly used Javeler’s confidential information. See
Javeler’s Response to Matthews Marine, at 12-13; Kahn Affidavit, ¶¶ 11-13. The
Court, in an exercise of caution, relies only on Matthews Marine’s conduct that
occurred before Javeler filed its complaint on March 17, 2014.4

The Court,

accordingly, will not consider for minimum contacts and personal jurisdiction
purposes Matthews Marine’s actions regarding the OxyChem project, which
Matthews Marine bid in April 2014 and performed in July and August 2014. The
Court limits its analysis to Matthews Marine’s actions regarding the Sherwin Alumina
project, which Mathews Marine bid prior to the filing of Javeler’s Complaint.
Javeler points to an email exchange between Cross and Matthews Marine in
November 2013 as evidence that Matthews Marine wrongfully used Javeler’s
confidential information. Matthews Marine in that exchange appears to accept
Javeler’s confidential information from Cross for use in preparing its bid for this
4

The Fifth Circuit has recognized that “the relevant time for determining jurisdiction
is the filing of the complaint.” Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n.1 (5th Cir.
1990); see also Glazier Grp., Inc. v. Mandalay Corp., Civ. Action No. H-06-2752, 2007 WL
2021762, at *9 (S.D. Tex. July 11, 2007) (Rosenthal, J.) (“In the Fifth Circuit, postcomplaint
activities cannot create specific personal jurisdiction that was lacking when the lawsuit was
filed.”). However, there is a real question as to the relevancy of these cases when the postcomplaint activities are a continuation of the alleged tort. The Court does not reach this
issue.
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project. See Email from Cross to Shaw Matthews and Tom Matthews dated Nov. 11,
2013 [Doc. # 35-3], at ECF page 1; Email from Shaw Matthews to Cross dated Nov.
12, 2013 [Doc. # 35-4] (collectively, “Sherwin Alumina Project Emails”).
By bidding the Sherwin Alumina project allegedly using Javeler’s confidential
information, Matthews Marine “purposely directed” its conduct toward Texas. See
Monkton Ins. Servs., Ltd., 768 F.3d at 432. Matthews Marine’s conduct in bidding the
Sherwin Alumina project constitutes “‘some act by which the defendant purposefully
avail[ed] itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.’” See Goodyear Dunlop Tires
Operations, S.A., 131 S. Ct. at 2854 (quoting Hanson, 357 U.S. at 253 (1958))
(alteration in original). In the Fifth Circuit, “[a] single act directed at the forum state
can confer personal jurisdiction so long as that act gives rise to the claim asserted
. . . .” Moncreif Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007).
Javeler, thus, has satisfied its burden on the first-prong of the Fifth Circuit’s specific
jurisdiction analysis to establish a prima facie case that Matthews Marine had
minimum contacts with Texas. The Court turns to the second-prong of the Fifth
Circuit’s analysis, i.e., whether these contacts gave rise to the claims asserted.
C.

Whether Javeler’s Claims Arise Out of Matthew’s Marine’s ForumRelated Contacts

Matthews Marine argues that Javeler’s claims do not arise out of the Texas-

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9

based Sherwin Alumina project. Matthews Marine’s Reply, at 10-11. Matthews
Marine asserts that the Sherwin Alumina project “will never be the basis of the
lawsuit” because “it is not in the Complaint.” Matthews Marine’s Reply, at 11.
Javeler’s Complaint states that it does business in “Texas, Louisiana, Florida, Georgia,
and Mississippi.” Complaint, ¶ 9. Javeler further alleges that Matthews Marine works
“in the Gulf Coast region.” Id., ¶ 11. On a Rule 12(b)(2) motion to dismiss for lack
of personal jurisdiction, the Court may consider the fruits of “‘any combination of the
recognized methods of discovery.’” Walk Haydel & Assocs., Inc. v. Coastal Power
Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008) (quoting Thompson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). The Court is not restricted to the
pleadings, and the affidavits and exhibits submitted with Javeler’s Response constitute
relevant and admissible evidence of specific Matthews Marine Texas projects.
Matthews Marine argues that logic dictates that the Sherwin Alumina project
cannot be considered in the personal jurisdiction analysis because Javeler was
awarded the project. Matthews Marine’s Reply, at 10-11. The Court is unpersuaded.
Misuse of Javeler’s information by Matthews Marine and Cross is the essence of
Javeler’s claims. Javeler’s Complaint prominently seeks injunctive relief to enjoin
Matthews Marine and Cross from using its confidential information and seeks return
of any Javeler’s confidential information in their possession because Matthews Marine

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10

has allegedly misused it to bid one or more projects. Complaint, at 17. Matthews
Marine’s alleged misuse of Javeler’s confidential information to bid the Texas-based
Sherwin Alumina project thus gives rise to Javeler’s claims, even if Matthews
Marine’s bid was unsuccessful.
Finally, Matthews Marine contends that the Sherwin Alumina project emails
allow “one of two conclusions: (1) Matthews Marine is not using and never had any
intention of using Javeler’s confidential information, or (2) Matthews Marine is the
worse conspirator of all time, having waited over ten months to make use of Javeler’s
confidential information.” Matthews Marine’s Reply, at 11. These arguments are best
characterized as factual disputes related to the merits of Javeler’s claims. They do not
alter the Court’s personal jurisdiction analysis because the Court must resolve all
factual disputes in favor of the plaintiff, Javeler. See Ainsworth, 716 F.3d at 176; ITL
Int’l, Inc., 669 F.3d at 496. The Court concludes that Javeler has satisfied its burden
of making a prima facie showing that Matthews Marine’s minimum contacts with
Texas give rise to the claims asserted and satisfy the requirements for specific
jurisdiction in Texas. See Palermo, 723 F.3d at 559; Clemens, 615 F.3d at 378-79.5
5

Since Matthews Marine had the minimum contacts required for specific jurisdiction,
the Court does not decide whether there is general jurisdiction. However, the Court notes
that, for foreign corporations like Matthews Marine, it is “incredibly difficult to establish
general jurisdiction in a forum other than the place of incorporation or principal place of
business.” Monkton Ins. Servs., Ltd., 768 F.3d at 432; accord Daimler AG v. Bauman, 134
(continued...)
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D.

Whether the Exercise of Personal Jurisdiction is Fair and
Reasonable

“Once it has been decided that a defendant purposefully established minimum
contacts within the forum State, these contacts may be considered in light of other
factors to determine whether the assertion of personal jurisdiction would comport with
‘fair play and substantial justice.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476 (1985) (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 320 (1945)). Fifth Circuit
courts consider “‘(1) the burden on the nonresident defendant, (2) the forum state’s
interests, (3) the plaintiff’s interest in securing relief, (4) the interest of the interstate
judicial system in the efficient administration of justice, and (5) the shared interest of
the several states in furthering fundamental social policies.’” McFadin v. Gerber, 587
F.3d 753, 760 (quoting Luv n’ care Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir.
2006)).
“In determining whether or not exercise of jurisdiction is fair and reasonable,

5

(...continued)
S. Ct. 746, 760 (2014). It is undisputed that Matthews Marine is incorporated in Mississippi
and has its principal place of business there. Complaint, ¶ 3. Javeler argues that the Court
has general jurisdiction based on Matthews Marine’s website and its work in Texas. See
Javeler’s Response to Matthews Marine, at 20-21. These arguments are unpersuasive. In
similar cases, courts have held that a non-interactive website and limited business contacts
were insufficient to meet the plaintiff’s burden to plead specific facts showing that the
nonresident defendant’s contacts with the forum state were so “continuous and systematic”
as to render it “at home.” See Daimler, 134 S. Ct. at 761; Monkton Ins. Servs., Ltd., 768 F.3d
at 432; Locke v. Ethicon Inc., – F. Supp. 3d. – , Civ. Action No. 4:14-CV-2648, 2014 WL
5819824, at *7 (S.D. Tex. Nov. 10, 2014) (Hoyt, J.).
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12

defendants bear the burden of proof and ‘it is rare to say the assertion [of jurisdiction]
is unfair after minimum contacts have been shown.’” Id. at 759-60 (quoting Wein Air
Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999)). The parties did not brief
the issue of whether this Court’s exercise of personal jurisdiction over Matthews
Marine would be unfair or unreasonable. The Court concludes that Matthews Marine
has failed to satisfy its burden. Matthews Marine has not established that suit in the
Southern District of Texas would contravene notions of fair play and substantial
justice. See id.; Burger King Corp., 471 U.S. at 477. Accordingly, the Court has
personal jurisdiction over Matthews Marine and denies Matthews Marine’s motion to
dismiss.
III.

CROSS’S RULE 12(b)(2) AND RULE 12(b)(3) MOTIONS TO DISMISS
FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE
The Confidentiality Agreement signed by Cross and Javeler contained a forum-

selection clause stating, “Any suit, action, or proceeding arising out of this Agreement
shall be brought in either the United States District Court, Southern District of Texas,
located in Harris County, Texas or in the state courts of the State of Texas, in Harris
County.” Confidentiality Agreement, at ECF page 6, ¶ 5. The parties do not dispute
that the claims in this case arise out of this agreement. Venue will be proper in this
case, and the Court will have personal jurisdiction over Cross, unless the Court

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determines that the forum-selection clause should be set aside.6
A.

Effect of the Forum-Selection Clause
1.

Standard for Enforcing Forum-Selection Clauses

The Fifth Circuit has recognized that there is a “strong presumption in favor of
enforcement of forum selection clauses.” Calix-Chacon v. Global Int’l Marine, Inc.,
493 F.3d 507, 513 (5th Cir. 2007) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S.
22, 33 (1988) (Kennedy, J., concurring)). A forum-selection clause is mandatory, as
opposed to permissive, if it “clearly demonstrate[s] the parties’ intent to make that

6

Matthews Marine was not a signatory to the agreement. Javeler nevertheless argues
that the forum-selection clause should be enforced against Matthews Marine because the
claims against Matthews Marine and Cross are “almost entirely interdependent.” Javeler’s
Response to Matthews Marine, at 16. This argument harks to the Fifth Circuit’s holding that,
under a theory of equitable estoppel, a non-signatory defendant may enforce an arbitration
or forum-selection provision against a signatory plaintiff when the plaintiff’s claims against
the non-signatory are “intertwined with, and dependent upon,” the agreement. See Grigson
v. Creative Artists Agency L.L.C., 210 F.3d 524, 525 (5th Cir. 2000). However, the Fifth
Circuit has rejected this “intertwined claims” theory of equitable estoppel when a signatory
plaintiff attempts to enforce an arbitration or forum-selection clause against a non-signatory
defendant, as Javeler seeks here. See Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d
347, 361 (5th Cir. 2003). Javeler cites to language from Texas cases that involve plaintiffs
attempting to avoid the enforcement of forum-selection clauses based on the presence of nonsignatory defendants. Javeler’s Response to Matthews Marine, at 17 (citing In re Int’l Profit
Associates, Inc., 274 S.W.3d 672, 680 (Tex. 2009); In re Emex Holdings L.L.C., No. 13-1100145-CV, 2013 WL 1683614, at * 6 (Tex. App.–Corpus Christi Apr. 18, 2013, orig.
proceeding) (en banc)). These cases and the reasoning therein are inapplicable to the issue
at bar, a plaintiff attempting to enforce a forum-selection clause against a non-signatory
defendant. Finally, Javeler claims that refusing to enforce the forum-selection clause against
Matthews Marine will “permit Cross to avoid his prior contractual commitments regarding
jurisdiction and venue in Texas.” Javeler’s Response to Matthews Marine, at 17. This
argument is academic as the Court has found personal jurisdiction over Matthews Marine
independent of enforcement of the forum-selection clause against Cross.
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jurisdiction exclusive.” City of New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d
501, 504 (5th Cir. 2004). The parties do not dispute that the forum-selection clause
at issue is mandatory. The Court agrees that the phrase “shall be brought in” creates
a mandatory forum-selection clause. See Kevlin Servs., Inc. v. Lexington State Bank,
46 F.3d 13, 14 (5th Cir. 1995) (per curiam) (finding that a forum-selection clause was
mandatory that stated “[t]he legal venue of this contract and any disputes arising from
it shall be settled in Dallas County, Texas”); Top Branch Tree Serv. & Landscaping
v. Omni Pinnacle, LLC, Civ. Action No. 06-3723, 2007 WL 1234976, at *2 (E.D. La.
Apr. 10, 2007) (Barbier, J.) (finding that the phrase “shall be the court of original
jurisdiction” created a mandatory forum-selection clause).
For mandatory forum-selection clauses, “[a] forum selection provision in a
written contract is prima facie valid and enforceable unless the opposing party shows
that enforcement would be unreasonable.” Kevlin Servs, Inc., 46 F.3d at 15 (citing
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)); accord Carter v.
Countrywide Credit Indus., Inc., 362 F.3d 294, 299 (5th Cir. 2004).
“Unreasonableness potentially exists where (1) the incorporation of the forum
selection clause into the agreement was the product of fraud or overreaching; (2) the
party seeking to escape enforcement ‘will for all practical purposes be deprived of his
day in court’ because of the grave inconvenience or unfairness of the selected forum;

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(3) the fundamental unfairness of the chosen law will deprive the plaintiff of a
remedy; or (4) enforcement of the forum selection clause would contravene a strong
public policy of the forum state.” Haynsworth v. The Corp., 121 F.3d 956, 963 (5th
Cir. 1997) (quoting Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991));
accord Calix-Chacon, 493 F.3d at 514. The party seeking to set aside the forumselection clause bears a heavy burden of proof to establish unreasonableness.
Haynsworth, 121 F.3d at 963; see also Calix-Chacon, 493 F.3d at 514.
2.

Enforcement of the Forum-Selection Clause is Reasonable

Cross argues that enforcing the forum-selection clause would be “unreasonable”
because the contract was formed and performed in Louisiana, and Javeler has not
shown that Cross had the“minimum contacts” with Texas required for specific
personal jurisdiction. Cross’s Motion, at 17; Cross’s Reply, at 3, 7. In light of the
strong presumption in favor of enforcing forum-selection clauses, the Fifth Circuit has
limited the scope of the term “unreasonable” for purposes of setting aside a forumselection clause. See Haynsworth, 121 F.3d at 963; Calix-Chacon, 493 F.3d at 514.
To be unreasonable, the forum-selection clause must have been the product of fraud
or overreaching, or enforcement would either deprive the plaintiff of her day in court
or a remedy or “contravene a strong public policy” of the forum state. See Carnival
Cruise Lines, 499 U.S. at 595; Haynsworth, 121 F.3d at 963; Calix-Chacon, 493 F.3d

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at 514. Cross does not meaningfully explain how his arguments meet the Fifth
Circuit’s standard. While traveling to Texas for trial or isolated other litigationrelated matters may be inconvenient for Cross, a resident of Louisiana, the Supreme
Court has held that inconvenience and expense is not enough to make a reasonable
forum-selection clause unenforceable. See Carnival Cruise Lines, 499 U.S. at 594.
The Court concludes that Cross has not met his heavy burden to establish that
enforcement of the forum-selection clause would be unreasonable. Accordingly, the
Court concludes that venue is proper in the Southern District of Texas, see SeattleFirst Nat’l Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990), and the forumselection clause conveys personal jurisdiction over Cross. See Kevlin Servs., Inc., 46
F.3d at 15. Cross’s Rule 12(b)(2) and Rule 12(b)(3) motions to dismiss are denied.
B.

Minimum Contacts Analysis

Alternatively, the Court finds that it has specific personal jurisdiction because
Cross, on behalf of Matthews Marine, bid the Sherwin Alumina project. See Kahn
Affidavit, ¶ 12 (“While speaking to the Sherwin Alumina representative responsible
for conducing the bidding process, I noticed Cross’ [sic] Matthews Marine’s business
card sitting on the Sherwin Alumina representative’s desk.”). To do so, Cross
allegedly used Javeler’s confidential information. See Sherwin Alumina Project
Emails. As concluded above with respect to Matthews Marine, Cross’s participation
in bidding on the Sherwin Alumina project establishes a prima facie showing of
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17

“minimum contacts” such that Cross could “reasonably anticipate being haled into
court in the forum state.” See J. McIntyre Machinery, Ltd., 131 S. Ct. at 2787-88;
Clemens, 615 F.3d at 378. The Court has considered Cross’s other arguments
regarding minimum contacts and finds them unavailing.
Cross also argues that the Court’s exercise of jurisdiction over him would
“offend traditional notions of fair play and substantial justice.” See Cross’s Motion,
at 14-16. Cross argues that it would be burdensome to force him, a Louisiana
resident, to defend this suit in Texas; Texas only has a minimal interest in this case
because the Confidentiality Agreement was executed in Louisiana and provides for
Louisiana law; Javeler’s relief is not connected to Texas because Javeler seeks
injunctive relief and none of the defendants reside in Texas; it is inefficient to exercise
jurisdiction in Texas because none of the Defendants reside in Texas; and this case is
about an employment contract executed in Louisiana. Id. The Court is unpersuaded
that these arguments rise to the level of the “rare” situation where it would be unfair
to exercise jurisdiction even though the minimum contacts requirement is met. See
McFadin, 587 F.3d at 760.

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III.

CROSS’S MOTION TO TRANSFER
A.

Section 1404(a) Standard for Transfer

“Section 1404(a) is intended to place discretion in the district court to
adjudicate motions for transfer according to an ‘individualized, case-by-case
consideration of convenience and fairness.’” Stewart Org., Inc., 487 U.S. at 29
(quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The party seeking to
transfer venue bears the burden to “satisfy the statutory requirements and clearly
demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the
interest of justice.’” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008)
(en banc) (quoting 28 U.S.C. § 1404(a)) (alteration in original).
“If the action could have been brought in the alternate venue, the court must
then weigh a series of non-exhaustive private and public interest factors, none of
which is given dispositive weight.” LeBlanc v. C.R. Eng., Inc., 961 F. Supp. 2d 819,
830 (N.D. Tex. 2013) (citing In re Volkswagen of Am., Inc., 545 F.3d at 315).7 A
forum-selection clause is a “significant factor that figures centrally in the district
7

The private factors are “(1) the relative ease of access to sources of proof; (2) the
availability of compulsory process to secure the attendance of witnesses; (3) the cost of
attendance for willing witnesses; and (4) all other practical problems that make trial of a case
easy, expeditious and inexpensive.” The public factors are “(1) the administrative difficulties
flowing from court congestion; (2) the local interest in having localized interests decided at
home; (3) the familiarity of the forum with the law that will govern the case; and (4) the
avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.”
In re Volkswagen of Am., Inc., 545 F.3d at 315(quoting In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir. 2004)) (internal quotation marks omitted) (alteration in original).
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court’s calculus.” Stewart Org., Inc., 487 U.S. at 29. “Because the overarching
consideration under § 1404(a) is whether a transfer would promote the interest of
justice, a valid forum-selection clause should be given controlling weight in all but the
most exceptional cases.” Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Court for W.
Dist. of Tex., 134 S. Ct. 568, 581 (2013) (internal citations and quotation marks
omitted).
The Supreme Court recently held that a mandatory forum-selection clause alters
the § 1404(a) analysis in cases where the defendant seeks to enforce that forumselection clause and to transfer the case to the contractually agreed forum. See
Atlantic Marine, 134 S. Ct. at 581-83. The Supreme Court held that “presence of a
valid forum-selection clause requires district courts to adjust their usual § 1404(a)
analysis in three ways”: (1) “the plaintiff’s choice of forum merits no weight”; (2) “a
court evaluating a defendant’s § 1404(a) motion to transfer based on a forum-selection
clause should not consider arguments about the parties’ private interests”; and
(3) “when a party bound by a forum-selection clause flouts its contractual obligation
and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it
the original venue’s choice-of-law rules–a factor that in some circumstances may
affect public-interest considerations.” Id. at 581-82. The parties have not briefed how
Atlantic Marine applies in this case where a plaintiff filed suit in the contractually
agreed upon forum and the plaintiff, not the defendant, seeks to enforce the mandatory
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20

forum-selection clause. While it is likely that the appellate courts will give the forumselection clause great weight in these circumstances, the Court does not definitively
decide this issue. The Court concludes instead that Cross’s motion to transfer should
be denied under the traditional § 1404(a) analysis.
B.

Section 1404(a) Analysis

Cross argues that the § 1404(a) factors weigh in favor of transfer because most
of the witnesses are in Louisiana; Cross obtained the allegedly confidential
information in Louisiana; Cross lives and works in Louisiana; the Southern District
of Texas has a busier docket than the Western District of Louisiana; Louisiana has a
localized interest in deciding this case because the contract was executed and
performed in Louisiana; and a Louisiana district court is better equipped to apply
Louisiana law (which is the governing law of the Confidentiality Agreement). Cross’s
Motion, at 20-22; Cross’s Reply at 8-9. Javeler counters that most of the evidence in
this case actually is located in Texas where the one or more jobs that Defendant Cross
bid using Javeler’s confidential information were located; Javeler is a Texas company;
the majority of Javeler’s witnesses are in Texas; and Texas has a localized interest
because Cross and Matthews Marine allegedly committed torts and a breach of
contract in Texas by soliciting business from Texas companies using improper means.
Javeler’s Response to Cross, at 19-21. Moreover, Javeler asserts that the Court should
give strong deference to the mandatory forum-selection clause designating the
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21

Southern District of Texas as the appropriate forum for resolving disputes. Id.
The Court concludes that this district is a proper and reasonable venue for this
case. The Court is unpersuaded that the majority of witnesses and evidence will
necessarily come from Louisiana, given that a focus of this case is projects bid and/or
performed in Texas. Cross essentially argues that it is more convenient for this case
to be in the district where he resides instead of the district where Javeler resides.
Transfer is not appropriate if the “‘only practical effect is to shift inconvenience from
the moving party to the nonmoving party.’” Rimkus Consulting Grp., Inc. v.
Cammarata, Civ. Action No. H-07-0405, 2007 WL 1520993, at * 11 (S.D. Tex. May
22, 2007) (Rosenthal, J.) (quoting CIT Grp./Commercial Servs., Inc. v. Romansa
Apparel, Inc., Civ. Action No. 02-1954, 2003 WL 169208, at *4 (N.D. Tex. Jan. 21,
2003) (Solis, J.)).
Both Texas and Louisiana have local interests in deciding this case. While a
Louisiana court may be well equipped to apply Louisiana law, this Court also can do
so. Any differences in the size of the docket in the Western District of Louisiana and
Houston do not outweigh the other pertinent considerations.8 Most significantly, the
8

According to the Federal Judicial Caseload Statistics for 2014, there are 4,752 civil
and 5,362 criminal cases pending in the Southern District of Texas, compared to 4,951 civil
and 234 criminal cases in the Western District of Louisiana. See U.S. District Courts–Civil
Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending March
31,
2013
and
March
31,
2014,
U.S.
CTS.,
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadSt
(continued...)
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22

Supreme Court has recognized that mandatory forum-selection clauses should be
given strong deference in the § 1404(a) analysis. See Atlantic Marine, 134 S. Ct. at
581-83; Stewart Org., Inc., 487 U.S. at 29. In light of these considerations, the Court
exercises its discretion to deny Cross’s motion to transfer.
V.

CONCLUSION AND ORDER
The Court has determined that it has personal jurisdiction over Defendants

Cross and Matthews Marine and that venue is proper in the Southern District of Texas.
Accordingly, it is hereby
ORDERED that Matthews Marine’s Motion to Dismiss for Lack of Personal
Jurisdiction [Docs. # 8 and # 8-1] is DENIED. It is further
ORDERED that Cross’s Motion to Dismiss Based on Improper Venue and, in
the Alternative, Motion to Transfer Venue [Docs. # 27 and # 27-1] is DENIED.
Finally, it is
ORDERED that the parties will file a new Joint Discovery/Case Management

8

(...continued)
atistics/2014/tables/C00Mar14.pdf (last visited Nov. 24, 2014); U.S. District
Courts–Criminal Cases Commenced, Terminated, and Pending (Including Transfers) During
the 12-Month Periods Ending March 31, 2013 and 2014, U.S. CTS.,
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadSt
atistics/2014/tables/D00CMar14.pdf (last visited Nov. 24, 2014). However, the sizes of the
dockets in the Houston Division of the Southern District of Texas and Western District of
Louisiana are quite similar. There are far more judges in Houston to handle equivalent
numbers of civil cases, and the vast majority of criminal filings in the Southern District of
Texas are not in the Houston Division.
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plan by January 5, 2015. The status conference in this case remains set for January
12, 2015 at 1:30 p.m.
SIGNED at Houston, Texas, this 4th day of December, 2014.

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