FORUM SELECTION CLAUSE / VENUE IN FEDERAL
COURTS
In re Atl. Marine Constr. Co., 2012 U.S. App. LEXIS
23803 (5th Cir. Tex. Nov. 19, 2012) denied a writ of mandamus to
transfer a case pursuant to a forum selection clause. The parties’ agreement provided that disputes
“shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or
the United States District Court for the Eastern District of Virginia, Norfolk
Division.” It contained no choice of law provision. Ignoring the forum-selection clause, plaintiff
filed suit in Texas. Defendant moved to
under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406, arguing
that the forum-selection clause obligated plaintiff to bring suit in Virginia.
Alternatively, it moved to transfer the case to the Eastern District of Virginia
under 28 U.S.C. § 1404(a). The
district court denied the motion to dismiss or transfer the case. It concluded
that when a forum-selection clause designates a specific federal forum or
allows the parties to select the federal courts of a different forum, section
1404(a), not Rule 12(b)(3) and § 1406, is the proper procedural mechanism for
its enforcement. Applying § 1404(a), the district court denied Atlantic’s
motion to transfer, finding that Atlantic had not met its burden of showing why
the interest of justice or the convenience of the parties and their witnesses
weighed in favor of transferring the case to Virginia.
The first issue was whether it was
proper to use § 1404(a), instead of Rule 12(b)(3) and § 1406, to enforce the
contractual forum-selection clause. The circuit court explained that section
1391 governs whether venue is proper in a given federal district. Rule 12(b)(3)
and § 1406(a) provide for dismissal or transfer of an action that has been
brought in an improper venue. By contrast, when the action has been brought in
a proper venue, § 1404 provides for transfer of the action within the federal
system to another federal venue where the action could have been brought. Thus,
the determination of whether § 1406 or § 1404(a) applies turns on whether venue
is proper in the court in which the suit was originally filed. If venue is
improper in that court, then § 1406 or Rule 12(b)(3) applies. If venue is
proper in that court, then § 1404(a) applies. In turn, the choice between Rule
12(b)(3) and § 1406 on the one hand and § 1404 on the other depends on whether
private parties can, through a forum-selection clause, render venue improper in
a court in which venue is otherwise proper under § 1391. Federal circuit courts are divided on the
issue.
Here, the trial court held that when a forum-selection clause
designates a specific federal forum or allows the parties to select the federal
courts of a different forum, a motion to transfer under § 1404(a) is the proper
procedural mechanism for enforcing the clause. In so doing, the district court followed the
minority of the federal appellate courts, but the Fifth Circuit agreed with
that approach, relying on Stewart
Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S. Ct. 2239, 101 L. Ed.
2d 22 (1988) for support. The concurring
opinion agreed that mandamus was improper, but that the district court had been
in error in its ruling and approach, reasoning that the Supreme Court has made
clear that forum-selection clauses are enforceable, citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907,
32 L. Ed. 2d 513 (1972) and Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S. Ct. 1522, 113 L.
Ed. 2d 622 (1991).
The U.S. Supreme Court should weigh in on the subject and,
given the recent decisions in the context of enforcing arbitration clauses, the
Court, in my opinion, is likely to enforce such forum selection clauses.
CLASS ACTION FAIRNESS ACT
Miss.
ex rel. Hood, 2012 U.S. App. LEXIS 24096 (5th Cir. November 21, 2012) involved
an appeal by manufacturers and distributors of liquid crystal display (“LCD”)
panels, who had jointly removed the case to federal district court on the
grounds that (1) the action was a “class action” under the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(1)(B), or (2) the action was a “mass
action” under the CAFA, § 1332(d)(11)(B). The district court’s order granting
the motion to remand was reversed because the suit qualified as a mass action
under the CAFA, making the removal proper.
The court explained that ordinarily, a district court's
remand order was not appealable, see 28 U.S.C. § 1447(d); but a statutory
exception that grants discretionary appellate jurisdiction to review remand
orders in actions that are removed under the CAFA. See 28 U.S.C. § 1453(c).
Under the CAFA, removal of a suit to federal court is proper
if the suit qualifies as a “class action” or a “mass action.” See 28 U.S.C. §
1453(b); 28 U.S.C. § 1332(d)(11)(A). Mississippi’s suit against the LCD
manufacturers does not qualify as a “class action.” But the suit qualified as a “mass action,” which
is defined as a civil action in which (1) monetary relief claims of (2) 100 or
more persons (3) are proposed to be tried jointly on the ground that the
plaintiffs’ claims involve common questions of law or fact and (4) include an
amount in controversy exceeding $75,000. 28 U.S.C. § 1332(d)(11)(B)(i).
DAUBERT
Barabin
v. AstenJohnson, Inc., 2012 U.S. App. LEXIS 23528 (9th Cir. Wash. Nov. 16,
2012) reversed a $9.4 million verdict because the trial court failed to
conduct a Daubert hearing. [Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993)]. The court ruled based
on written submissions, first excluding, then allowing the testimony of two
experts in this asbestos-related mesothelioma case, explaining that “the
district court’s decision to allow presentation of the expert testimony to the
jury without making any gateway determinations regarding relevance and
reliability constituted an abuse of discretion requiring a new trial.”
STANDING / SUBSTITUTION OF PARTIES ON
APPEAL
Castelo
Devs. v. Rawls, 2012 Fla. App. LEXIS 20059 (Fla. 3d DCA November 21, 2012)
held that appellant had no standing to prosecute an appeal where, after
purchasing a condominium at a foreclosure sale, it conveyed its interest in the
property to a third party. At the time
it filed the notice of appeal, appellant had no interest in the unit. Nor could the third party be substituted
because it was never present in the lower tribunal. The court concluded that to rule otherwise
“would shake the foundation of the Florida Rules of Appellate Procedure.”
ATTORNEY’S FEES
Surgical
Partners, LLC v. Choi, 2012 Fla. App. LEXIS 20192 (Fla. 4th DCA Nov. 21, 2012)
reversed an award of prevailing-party attorney’s fees where a doctor
successfully defended a breach of contract action on the basis that the
agreement was unenforceable because the plaintiff had failed to provide the
requisite the written notice to commence.
As no binding contract was formed, the doctor could not avail himself of
the fees provision in the contract.
DISCOVERY / BIAS
Steinger
Iscoe & Greene, P.A. v. Geico Gen. Ins. Co., 2012 Fla. App. LEXIS 20208
(Fla. 4th DCA Nov. 21, 2012) quashed an order that compelled a law firm to
produce discovery pertaining to the firm’s relationship with a treating
physician. The court noted that, for
uncovering bias, there was no distinction between a treating physician, an
expert witness and a retained expert, subject to Rule 1.280(b)(5)(A)(iii)2, and
Elkins v. Syken, 672 So. 2d 517 (Fla.
1996). Here, the discovery request was
directed to a non-party law firm, seeking bias discovery regarding the firm’s
ongoing relationship with plaintiff’s treating health care providers.
The court concluded that where there is a preliminary showing
that the plaintiff was referred to the doctor by the lawyer (whether directly
or through a third party) or vice versa, the defendant is entitled to discover
information regarding the extent of the relationship between the law firm and
the doctor. Here, the law firm was not a party to the litigation and the record
did not establish that the doctor had a financially beneficial relationship
with the law firm. If a referral is
shown to exist, discovery from the law firm regarding the extent of the
relationship may be calculated to lead to the discovery of admissible evidence.
Normally, discovery seeking to establish that a referral has
occurred should first be sought from the party, the treating doctor, or other
witnesses — not the party’s legal counsel. Once there is evidence that a
referral relationship exists, discovery from the law firm may be appropriate,
with the trial court balancing the privacy rights of the former patients and
clients, and implementing appropriate safeguards.
GEICO had not established the existence of a referral
relationship between the health care providers and the law firm. Accordingly,
the trial court should not have required the law firm to produce the discovery,
as it was premature
Thank you for a very informative information! I hope there's really no bias.
ReplyDeleteGood to have been reading this. Good to have been feeding my brain with news that's been going around.
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