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Brister v. ACBL River Operations LLC

United States District Court, E.D. Louisiana

February 7, 2018

SAMUEL BRISTER, Plaintiff
v.
ACBL RIVER OPERATIONS LLC, Defendant

         SECTION: “E” (3)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Samuel Brister (“Brister”) alleges he was injured while working aboard the M/V SAFETY LEGEND, a vessel owned and operated by Defendant American Commercial Barge Line LLC (“ACBL”).[1] Brister argues that the negligence of ACBL and the unseaworthiness of the vessel resulted in his injury.[2]

         Before the Court is ACBL’s motion to dismiss for improper venue, or in the alternative, to transfer venue.[3] ACBL seeks to enforce a forum selection clause contained in Brister’s post-injury benefits application which provides that any suit filed against ACBL related to Brister’s injury may only be filed in the United States District Court for the Southern District of Indiana, New Albany Division.[4] The motion is opposed.[5] ACBL filed a reply[6] to Brister’s opposition, as well as a supplemental memorandum in support.[7]

         BACKGROUND

         Brister filed his seaman complaint on June 22, 2017.[8] Brister alleges he was employed by ACBL as a deckhand assigned to its vessel M/V SAFETY LEGEND.[9] On or about March 11, 2017, 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 damages are attributable to the negligence of ACBL and the unseaworthiness of the vessel, “specifically the rusted wire/cable Plaintiff was working with at the time of his injury.”[11] Brister seeks maintenance and cure for his injuries, which he alleges have rendered him permanently disabled.[12]

         ACBL filed the instant motion on October 18, 2017.[13] ACBL asserts that, after Brister’s alleged injuries on March 11, 2017, ACBL notified him of his eligibility to apply for paid leave through ACBL’s Pay Continuation Plan.[14] This program allows ACBL employees to receive short-term pay continuance while they are on approved medical leave.[15] ACBL asserts that on or about March 23, 2017, Brister signed the “Pay Continuance Form,” which contained the following forum selection clause:

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.[16]

         Brister’s application for post-injury benefits was approved, and he thereafter received pay continuance payments for 26 weeks.[17]

         ACBL contends that by agreeing to the mandatory 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 dismissal of the suit pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure,[18] or alternatively, for transfer of the matter to the U.S. District Court for the Southern District of Indiana, New Albany Division, pursuant to 28 U.S.C. § 1404(a).[19]

         LAW AND ANALYSIS

         I. Motion to Dismiss

         Under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a), a party may move to dismiss a claim brought in an improper venue.[20] However, in Atlantic Marine Construction Company, Inc. v. United States District Court for the Western District of Texas,[21] the United States Supreme Court held that a forum selection clause does not render an otherwise proper venue improper. The Court explained:

Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is “wrong” or “improper.” Whether 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.
... 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 may not be dismissed under § 1406(a) or Rule 12(b)(3).[22]

         ACBL does not claim that this Court is an “improper” or “wrong” venue under the federal venue provisions in 28 U.S.C. § 1391, and so dismissal pursuant to Rule 12(b)(3) would be inappropriate. Rather, where a mandatory and enforceable forum selection clause direct litigants 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).”[23]

         II. The Forum Selection Clause

         If the forum selection clause in this matter is both mandatory and enforceable, then ACBL may seek to enforce it through 28 U.S.C. 1404(a). “A mandatory [forum selection clause] affirmatively requires that litigation arising from the contract be carried out in a given forum.”[24] A clause is mandatory “only if it contains clear language specifying that litigation must occur in the specified forum.”[25] The clause at issue in this case states clearly that Brister’s lawsuit may “only be filed” in the Southern District of Indiana, and that Brister “will make no effort to have such lawsuit or claim transferred or moved to any other court.”[26] Accordingly, the Court finds that the forum selection clause is mandatory.

         A party attacking a forum selection clause must show that the clause is unreasonable under the circumstances in order to overcome the presumption that the clause should be enforced.[27] 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 the remedy; or (4) enforcement of the forum selection clause would contravene a strong public policy of the forum state.[28]

         Brister offers two arguments for finding the forum selection clause unenforceable. First, he argues that forum selection clauses are inapplicable in Jones Act cases.[29] Because the Jones Act shares a body of law with the Federal Employers Liability Act (“FELA”), and the Supreme Court has established that FELA prohibits forum selection clauses,[30] Brister argues that the Jones Act similarly prohibits forum selection clauses.[31] Brister acknowledges that the Fifth Circuit has held that FELA’s venue provisions do not apply to the Jones Act, which has its own venue provision.[32] Brister contends, however, that because the 2008 amendments to the Jones Act eliminated the statute’s venue provision, the Jones Act should now be interpreted as incorporating FELA’s venue provision.[33]

         Second, Brister argues that, even if the Jones Act does not prohibit forum selection clauses, this clause is unenforceable because “it was the product of fraud and overreaching.”[34] He contends the forum selection clause was “hidden in fine print after generic release of information 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 ...


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