Girdler v. American Commercial Barge Line LLC

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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”).^[1] Girdler contends that negligence on the part of ACBL resulted in his injury.^[2]

         Before 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.^[3] The motion asks the Court to dismiss Girdler's case for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).^[4] 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).^[5] Girdler opposes the motion.^[6]

         I.

         First, the Court points out that ACBL may not seek dismissal of this case pursuant to Rule 12(b)(3)^[7] 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 venue laws.^[8]

         According 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).

         The 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.^[9] 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.

         II.

         The forum selection clause that ACBL seeks to enforce appears on a form titled “Attending Physician's Statement of Functionality.”^[10] 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.^[11]

         Girdler does not contend that this clause is not mandatory, ^[12] but only that it is unenforceable.^[13]

         A party 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 ...