United States District Court, E.D. Louisiana
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
Brad Girdler (“Girdler”) alleges that he was
injured while working aboard the M/V JOHN NUGENT, a vessel
owned and operated by defendant American Commercial Barge
Line, LLC (“ACBL”). Girdler contends that negligence
on the part of ACBL resulted in his injury.
the Court is a motion filed by ACBL to enforce a forum
selection clause located in paperwork completed in relevant
part by Girdler after he sustained his injury. The motion asks
the Court to dismiss Girdler's case for improper venue
pursuant to Federal Rule of Civil Procedure
12(b)(3). In the alternative, ACBL asks the Court to
transfer the case to the U.S. District Court for the Southern
District of Indiana, New Albany Division, pursuant to 28
U.S.C. § 1404(a). Girdler opposes the motion.
the Court points out that ACBL may not seek dismissal of this
case pursuant to Rule 12(b)(3) on the ground that the forum
selection cause at issue renders venue “improper”
in the Eastern District of Louisiana. The Supreme Court
concluded in Atlantic Marine Construction Company, Inc.
v. United States District Court for the Western District of
Texas, 134 S.Ct. 568 (2013) (“Atlantic
Marine”), that “[w]hether venue is
‘wrong' or ‘improper' depends
exclusively on whether the court in which the case
was brought satisfies the requirements of federal venue laws,
and those provisions say nothing about a forum-selection
clause.” Atlantic Marine, 134 S.Ct. at 577
(emphasis added). ACBL does not suggest that venue is
improper in the Eastern District of Louisiana under federal
to the Atlantic Marine Court, where a mandatory and
enforceable forum selection clause “point[s] to a U.S.
court, ” then “the proper mechanism for enforcing
such a clause is a motion for transfer of venue under 28
U.S.C. §1404(a).” Weber v. PACT XPP
Technologies, AG, 811 F.3d 758, 766 (5th Cir. 2016)
(citing Atlantic Marine, 134 S.Ct. at 575, 579). On
the other hand, “the proper mechanism to enforce [a
mandatory and enforceable forum selection clause] that calls
for litigation in a domestic state court or in a foreign
court is through a motion to dismiss on grounds of [forum
non conveniens].” Id. (citing
Atlantic Marine, 134 S.Ct. at 580).
forum selection clause at issue in this case points to a U.S.
court- namely, the U.S. District Court for the Southern
District of Indiana, New Albany Division. Thus, if the
clause is both mandatory and enforceable, then 28 U.S.C.
§ 1404(a) provides the proper avenue through which ACBL
may seek to enforce it.
forum selection clause that ACBL seeks to enforce appears on
a form titled “Attending Physician's Statement of
Functionality.” The paragraph featuring the clause
provides, in full:
I hereby authorize release of information on this form by the
below named physician for the purpose of claim processing. I
agree to fully cooperate and participate in all medically
directed treatment, as necessary. Failure to do so could
result in loss of the pay continuance benefit offered to me
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 my leave of absence from 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 make no effort to have such lawsuit or claim transferred
or moved to any other court.
does not contend that this clause is not mandatory,
but only that it is unenforceable.
attacking a forum selection clause must show that that the
clause is unreasonable under the circumstances in order to
overcome the presumption that the clause should be enforced.
Barnett v. DynCorp Int'l, L.L.C., 831 F.3d 296,
301 (5th Cir. 2016). A clause is unreasonable 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; (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.
Id. (quoting Haynsworth v. The Corp., 121
F.3d 956, 963 (5th Cir. 1997)) (internal quotation marks