BRISTER v. AMERICAN COMMERCIAL BARGE LINE, LLC, No. 4:2018cv00019 - Document 25 (S.D. Ind. 2018)
Court Description: ORDER AND REASONS re 9 MOTION to Dismiss for Improper Venue Pursuant to F.R.C.P. 12(b)(3), Or in the Alternative, To Transfer Venue. IT IS ORDERED that Defendant American Commercial Barge Line, LLC's motion to transfer venue is GRANTED. This matter is TRANSFERRED to the U.S. District Court for the Southern District of Indiana, New Albany Division, pursuant to 28 U.S.C. § 1404(a). Signed by Judge Susie Morgan.(bwn) [Transferred from Louisiana Eastern on 2/7/2018.]
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BRISTER v. AMERICAN COMMERCIAL BARGE LINE, LLC Doc. 25 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A SAMU EL BRISTER, Plain tiff CIVIL ACTION VERSU S N O. 17-6 0 3 5 ACBL RIVER OPERATION S LLC, D e fe n d an t SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Plaintiff Sam uel Brister (“Brister”) alleges he was injured while working aboard the M/ V SAFETY LEGEND, a vessel owned and operated by Defendant Am erican Com m ercial Barge Lin e LLC (“ACBL”). 1 Brister argues that the negligence of ACBL an d the unseaworthiness of the vessel resulted in his injury. 2 Before the Court is ACBL’s m otion to dism iss for im proper venue, or in the alternative, to transfer venue. 3 ACBL seeks to enforce a forum selection clause contain ed in Brister’s post-injury ben efits application which provides that any suit filed against ACBL related to Brister’s injury m ay only be filed in the United States District Court for the Southern District of Indiana, New Albany Division. 4 The m otion is opposed. 5 ACBL filed a reply 6 to Brister’s opposition, as well as a supplem ental m em orandum in support. 7 1 R. Doc. 1; R. Doc. 8 . R. Doc. 8 at ¶ 8-9. 3 R. Doc. 9. 4 R. Doc. 9-1 at 3. 5 R. Doc. 16. 6 R. Doc. 20 . 7 R. Doc. 24. 2 1 Dockets.Justia.com BACKGROU N D Brister filed his seam an com plaint on J une 22, 20 17. 8 Brister alleges he was em ployed by ACBL as a deckhand assigned to its vessel M/ V SAFETY LEGEND. 9 On or about March 11, 20 17, Brister alleges he suffered severe injuries, including injuries to his lower back, while he was working aboard the vessel in the navigable waters of the Mississippi River. 10 Plaintiff asserts that the dam ages are attributable to the negligen ce of ACBL and the unseaworthiness of the vessel, “specifically the rusted wire/ cable Plaintiff was working with at the tim e of his injury.”11 Brister seeks m aintenance and cure for his injuries, which he alleges have ren dered him perm anently disabled. 12 ACBL filed the instant m otion on October 18, 20 17. 13 ACBL asserts that, after Brister’s alleged injuries on March 11, 20 17, ACBL notified him of his eligibility to apply for paid leave through ACBL’s Pay Continuation Plan. 14 This program allows ACBL em ployees to receive short-term pay continuance while they are on approved m edical leave. 15 ACBL asserts that on or about March 23, 20 17, Brister signed the “Pay Continuance Form ,” which contained the following forum selection clause: I hereby authorize release of inform ation on this form by the below nam ed physician for the purpose of claim processing. I agree to fully cooperate and participate in all m edically directed treatm ent, as necessary. Failure to do so could result in loss of the pay continuan ce benefit offered to m e by ACBL. I further agree that in the event I file a claim or lawsuit against ACBL relating to the pay continuance program and/ or the incident giving rise to the illness and/ or injury that is the subject of m y leave of absence from 8 R. Doc. 1. Brister subsequently filed an am ended com plaint. R. Doc. 8 . R. Doc. 8 at 1. 10 R. Doc. 8 at ¶ 6-7. 11 R. Doc. 8 at ¶ 9. 12 R. Doc. 8 at ¶ 11. 13 R. Doc. 9. 14 R. Doc. 9 at 3. 15 Id. 9 2 work, such suit will only be filed in the U.S. District Court for the Southern District of Indiana, New Albany Division and I will m ake no effort to have such lawsuit or claim transferred or m oved to any other court. 16 Brister’s application for post-injury ben efits was approved, and he thereafter received pay continuance paym ents for 26 weeks. 17 ACBL contends that by agreeing to the m andatory forum selection clause contained in the Pay Continuance Form , Brister has waived his right to file suit in the Eastern District of Louisiana. ACBL seeks dism issal of the suit pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, 18 or alternatively, for transfer of the m atter to the U.S. District Court for the Southern District of Indiana, New Alban y Division, pursuant to 28 U.S.C. § 140 4(a). 19 LAW AN D AN ALYSIS I. Mo tio n to D is m is s Under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 140 6(a), a party m ay m ove to dism iss a claim brought in an im proper venue. 20 However, in Atlantic Marine Construction Com pany , Inc. v. United States District Court for the W estern District of Texas, 21 the United States Suprem e Court held that a forum selection clause does not render an otherwise proper venue im proper. The Court explained: Section 140 6(a) and Rule 12(b)(3) allow dism issal only when venue is “wrong” or “im proper.” Whether venue is “wrong” or “im proper” depends exclusively on whether the court in which the case was brought satisfies the 16 R. Doc. 9-4 at 13. R. Doc. 9-1 at 3. 18 F ED . R. CIV. P. 12(b)(3). 19 28 U.S.C. § 140 4(a) (20 12). 20 “The district court of a district in which is filed a case laying venue in the wrong division or district shall dism iss, or if it be in the in terest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 140 6(a). 21 134 S. Ct. 568 (20 13) (“Atlantic Marine”). 17 3 requirem ents of federal venue laws, and those provisions say nothing about a forum selection clause. ... Whether the parties entered into a contract containing a forum -selection clause has no bearing on whether a case falls into one of the categories of cases listed in § 1391(b). As a result, a case filed in a district within § 1391 m ay not be dism issed under § 140 6(a) or Rule 12(b)(3). 22 ACBL does not claim that this Court is an “im proper” or “wrong” ven ue under the federal venue provisions in 28 U.S.C. § 1391, and so dism issal pursuant to Rule 12(b)(3) would be inappropriate. Rather, where a m andatory and enforceable forum selection clause direct litigants to a U.S. court, then “the proper m echanism for enforcing such a clause is a m otion for transfer of venue under 28 U.S.C. § 140 4(a).”23 II. Th e Fo ru m Se le ctio n Clau s e If the forum selection clause in this m atter is both m andatory and enforceable, then ACBL m ay seek to enforce it through 28 U.S.C. 140 4(a). “A m andatory [forum selection clause] affirm atively requires that litigation arising from the contract be carried out in a given forum .”24 A clause is m andatory “only if it contains clear language specifying that litigation m ust occur in the specified forum .”25 The clause at issue in this case states clearly that Brister’s lawsuit m ay “only be filed” in the Southern District of Indiana, and that Brister “will m ake no effort to have such lawsuit or claim transferred or m oved to any other court.”26 Accordingly, the Court finds that the forum selection clause is m andatory. 22 Atlantic Marine, 134 S Ct. at 577. W eber v . PACTR XPP Technologies, AG, 811 F.3d 758 , 766 (5th Cir. 20 16) (citing Atlantic Marine, 134 S Ct. at 575, 579). 24 W eber, 811 F.3d at 768. 25 Id. (em phasis in original). 26 R. Doc. 9-4 at 13. 23 4 A party attacking a forum selection clause m ust show that the clause is unreasonable under the circum stances in order to overcom e the presum ption that the clause should be enforced. 27 A clause is unreasonable where: (1) the incorporation of the forum selection clause into the agreem ent was the product of fraud or overreaching; (2) the party seeking to escape enforcem ent will for all practical purposes be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum ; (3) the fundam ental unfairness of the chosen law will deprive the plaintiff of the rem edy; or (4) enforcem ent of the forum selection clause would contravene a strong public policy of the forum state. 28 Brister offers two argum ents for finding the forum selection clause unenforceable. First, he argues that forum selection clauses are inapplicable in J ones Act cases. 29 Because the J ones Act shares a body of law with the Federal Em ployers Liability Act (“FELA”), and the Suprem e Court has established that FELA prohibits forum selection clauses, 30 Brister argues that the J ones Act sim ilarly prohibits forum selection clauses. 31 Brister acknowledges that the Fifth Circuit has held that FELA’s venue provisions do not apply to the J ones Act, which has its own venue provision. 32 Brister contends, however, that because the 20 0 8 am endm ents to the J ones Act elim inated the statute’s venue provision, the J ones Act should n ow be interpreted as in corporating FELA’s venue provision. 33 Second, Brister argues that, even if the J ones Act does not prohibit forum selection clauses, this clause is unenforceable because “it was the product of fraud and 27 Barnett v . Dy nCorp Int’l, L.L.C., 831 F.3d 296, 30 1 (5th Cir. 20 16). Id. (quotin g Hay nsw orth v. The Corp., 121 F.3d 956, 963 (5th Cir. 1997) (internal quotation m arks om itted)). 29 R. Doc. 16 at 2. 30 See Boy d v. Grand Trunk W estern R. Co., 338 U.S. 263 (1949). 31 R. Doc. 16 at 3-4. 32 See Terrebonne v . K-Sea Transportation Corp., 477 F.3d 271, 283 (5th Cir. 20 0 7). 33 R. Doc. 16 at 3-4. 28 5 overreaching.”34 He contends the forum selection clause was “hidden in fin e print after generic release of inform ation language,” and was “not set out or conspicuous in any way.”35 Brister further asserts that he “was never advised of the forum selection clause by [ACBL], was not advised of the forum selection clause in the letter instructing him to sign it to receive benefits, and had not contacted a lawyer and was unrepresented at the tim e he sign ed the form s.”36 The Court finds that Brister’s assertions are without m erit. With regard to Brister’s argum ent as to the applicability of forum selection clauses in J ones Act cases, he cites no recent cases in support of his argum ent, and ignores recent federal jurisprudence holding that FELA’s venue provisions do not apply in J ones Act cases. 37 Courts in this district routinely hold that forum selection clauses apply in analogous situations. 38 The Court finds no reason to find otherwise in this case. The Court also finds that the specific clause at issue in this case is not the product of “fraud and overreaching.” The paragraph that includes the forum selection clause is in the sam e font and text size as the rest of the form . 39 The paragraph in question is prom inently featured on the Pay Continuance Form , below the heading “To be com pleted by the Em ployee.”40 Brister’s signature appears im m ediately below the forum selection 34 R. Doc. 16 at 4. Id. 36 R. Doc. 16 at 5. 37 See, e.g., Riley v. Trident Seafoods Corp., 20 12 WL 2450 74 (D. Minn . 20 12); Utoafili v. Trident Seafoods Corp, 20 0 9 WL 646528 8 (N.D. Cal. 20 0 9). 38 See, e.g., Girdler v. Am erican Com m ercial Barge Lin e, LLC, No. 17-6593, R. Doc. 25 (E.D. La. Dec. 18 , 20 17); Tay lor v. Teco Barge Line, Inc., No. 0 6-60 94, R. Doc. 28 (E. D. La. Feb. 12, 20 0 8); Sm ith v. Teco Ocean Shipping, 20 0 4 WL 1638111 (E.D. La. 20 0 4). 39 R. Doc. 9-4 at 13. 40 Id. 35 6 clause. 41 In short, Brister has not overcom e the presum ption that the clause should be enforced. III. Tran s fe r Because the forum selection clause is both m andatory and enforceable, the Court m ust consider whether to transfer the case to the Southern District of Indiana, New Albany Division. Section 140 4(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court m ay transfer any civil action to any other district or division where it m ight have been brought or to any district or division to which all parties have consented.”42 Ordin arily, a court weighs various public interest factors and private interest factors in deciding a m otion to transfer under Section 140 4(a). 43 The Atlantic Marine Court clarified the proper analysis to evaluate a Section 140 4(a) m otion when the parties have agreed to a forum selection clause. The Court explain ed: “[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. Only under extraordin ary circum stances unrelated to the conven ience of the parties should a § 140 4(a) m otion be denied.”44 Furtherm ore, in determ ining the proper forum , a district court should not consider the private interests of the parties. “When parties agree to a 41 Id. 42 28 U.S.C. § 140 4(a). See Piper Aircraft Co. v. Rey no, 454 U.S. 235, 10 2 S. Ct. 252, 70 L. Ed. 2d 419 (1981). Private interest factors include: “relative ease of access to sources of proof; availability of com pulsory process for attendance of unwilling, and the cost of obtain in g attendance of willing, witnesses; possibility of view of prem ises, if view would be appropriate to the action; and all other practical problem s that m ake trial of a case easy, expeditious and inexpensive.” Piper Aircraft, 454 U.S. at 241, n. 6. Public interest factors m ay include: “the adm inistrative difficulties flowing from court con gestion; the local interest in havin g localized controversies decided at hom e; [and] the interest in havin g the trial of a diversity case in a forum that is at hom e with the law.” Id. 44 Atlantic Marine, 134 S. Ct. at 581. 43 7 forum selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for them selves or their witnesses, or for their pursuit of the litigation.”45 Courts m ay nonetheless consider “public interest factors,” including “the adm in istrative difficulties flowing from court congestion; the local interest in having localized controversies decided at hom e; [and] the interest in having the trial of a diversity case in a trial that is at hom e with the law.”46 However, “[b]ecause those factors will rarely defeat a transfer m otion, the practical result is that forum selection clauses should control except in unusual cases.”47 Brister has offered only private-interest factors in opposition to the m otion to transfer. He argues that the availability and convenience of witnesses and parties, the location of pertinent books and records, the cost of obtaining attendance of witnesses, the place of the alleged wrong, and the possibility of prejudice all weigh against transferring the case. 48 These private-interest factors m ay not be considered by the Court in its § 140 4(a) analysis, however, and Brister has not identified an y public-interest factors that counsel against transferring the case to the forum to which the parties contractually agreed. The Court therefore concludes that transfer of this m atter to the U.S. District Court for the Southern District of Indiana, New Albany Division, is appropriate. Accordingly; IT IS ORD ERED that Defendant Am erican Com m ercial Barge Lin e, LLC’s m otion to transfer venue is GRAN TED . This m atter is TRAN SFERRED to the U.S. 45 Id. at 582. Id. at 582 n.6. 47 Id. at 582. 48 R. Doc. 16 at 6-8. 46 8 District Court for the Southern District of Indiana, New Albany Division, pursuant to 28 U.S.C. § 140 4(a). N e w Orle a n s , Lo u is ian a, th is 7th d ay o f Fe bru ary, 2 0 18 . _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 9
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