Boutte v. Cenac Towing, Inc.

• Decision Date: 16 November 2004
• Docket Number: No. CIV.A. G-03-1054.,CIV.A. G-03-1054.
• Citation: 346 F.Supp.2d 922
• Parties: Eric BOUTTE, Plaintiff, v. CENAC TOWING, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

346 F.Supp.2d 922

Eric BOUTTE, Plaintiff, v. CENAC TOWING, INC., Defendant.

No. CIV.A. G-03-1054.

United States District Court, S.D. Texas, Galveston Division.

November 16, 2004.

Francis I. Spagnoletti, Spagnoletti & Assoc., Houston, TX, for Plaintiff.

ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION

KENT, District Judge.

This is a Jones Act case brought pursuant to this Court's admiralty jurisdiction. Plaintiff Eric Boutte ("Plaintiff") brings this action against Cenac Towing, Inc. ("Defendant") for injuries he sustained while working aboard Defendant's vessels. On September 20, this Court issued an Order denying Defendant's Motion to Dismiss under Fed.R.Civ.P. 12(b)(3) or, in the Alternative, Motion to Transfer Venue ("Order"). Now before the Court is Defendant's Motion for Reconsideration of that Order. For the following reasons, Defendant's Motion for Reconsideration is DENIED.

I.

Defendant, a Louisiana corporation with its principal place of business in Louisiana, hired Plaintiff, a Louisiana resident, to work on its vessels as a deckhand. As a condition of employment, Plaintiff executed a Choice of Forum Agreement on June 26, 2003, designating Louisiana as the appropriate forum for any lawsuits arising out of his employment. On October 24 or 25, 2003, Plaintiff allegedly injured his elbow while performing his duties aboard the M/V GENIE CENAC, which was on the Ohio River in Kentucky. On December 2, 2003, Plaintiff allegedly aggravated his elbow injury and suffered additional injuries while performing his duties aboard the M/V URSULA CENAC, which was in Freeport, Texas. Defendant owns and operates both vessels.

Plaintiff filed this lawsuit on December 30, 2003. Defendant answered on March 3, 2004. In its answer, Defendant specifically reserved its objections to this Court's venue and averred its intention to file a motion to transfer venue and a memorandum in support thereof. On March 17, 2004, this Court entered a Docket Control Order, setting the case for trial on February 14, 2005. On July 2, 2004, Defendant filed its Motion to Dismiss under Fed.R.Civ.P. 12(b)(3) or, in the alternative, Motion to Transfer. After receiving a brief extension, Plaintiff filed its Response on August 5, 2004.

This Court denied Defendant's Motions on September 20, 2004. Defendant filed its Motion for Reconsideration on October 14. Plaintiff filed its Response on November 4.

II.

A. Defendant's Motion to Dismiss under Fed.R.Civ.P. 12(b)(3)

Defendant moves this Court to reconsider its Order denying Defendant's Motion to Dismiss. Defendant argued that this case should be dismissed pursuant to Fed.R.Civ.P. 12(b)(3) because of the choice of forum agreement between the parties. Rule 12(b)(3) allows a party to move to dismiss a case for improper venue. This Court denied Defendant's Motion.

Although Plaintiff is suing under the Jones Act, 46 U.S.C. § 688, he is not asserting federal question jurisdiction as the basis for subject matter jurisdiction in this Court. Rather, he is invoking this Court's admiralty jurisdiction, under Fed.R.Civ.P. 9(h). Therefore, the venue provisions for Jones Act cases do not apply. See Richoux v. R & G Shrimp Co., 126 F.Supp.2d 1007, 1009 n. 1 (S.D.Tex.2000) ("The venue provisions of the Jones Act ... do not apply to cases brought on the admiralty side of federal court."). This Court must determine whether venue is proper using the rules of venue particular to admiralty.

In an admiralty case, venue is proper in any court with personal jurisdiction over the defendant. See In re McDonnell-Douglas Corp., 647 F.2d 515, 516 (5th Cir.1981) ("[T]he general admiralty practice prevails, in which venue and personal jurisdiction merge."); Richoux, 126 F.Supp.2d at 1009 ("[F]or claims in admiralty, venue lies wherever a district court has jurisdiction over the defendant."). In considering Defendant's Motion to Dismiss, this Court determined that it had personal jurisdiction over Defendant because the acts of which Plaintiff complains occurred here. See Order at 3-4. Plaintiff asserts that he was injured on December 2, 2003, while the URSULA CENAC was in Freeport, Texas. Defendant's records bear this out. According to Exhibit 2C of Defendant's Motion to Dismiss or, Alternatively, Motion to Transfer, the URSULA CENAC arrived at Equistar Chocolate Bayou in Freeport, Texas, at 9:45 a.m. on December 2, 2003. It docked at 10:00 a.m., discharged until 10:00 p.m., and departed at 11:00 p.m. Plaintiff alleges that the URSULA CENAC was unseaworthy and that Defendant was negligent during this time. Because this Court has personal jurisdiction over Defendant, venue is proper here, under traditional admiralty law. Defendant has not shown any reason why this Court should overrule its Order denying the Motion to Dismiss. Therefore, Defendant's Motion for Reconsideration of its Motion to Dismiss is respectfully DENIED.

B. Defendant's Motion to Transfer

1. 28 U.S.C. § 1406(a)

Defendant moved to transfer this case to the Eastern District of Louisiana under 28 U.S.C. § 1406(a). Section 1406(a) provides: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). As previously discussed, venue in the Southern District of Texas is not wrong, although venue may also properly lie elsewhere. Defendant has not shown any reason why this Court should overrule its Order denying Defendant's Motion to Transfer under 28 U.S.C. § 1406(a). Therefore, Defendant's Motion for Reconsideration of its Motion to Transfer under 28 U.S.C. § 1406(a) is respectfully DENIED.

2. 28 U.S.C. § 1404(a)

Defendant alternatively sought a discretionary transfer to the Eastern District of Louisiana pursuant to 28 U.S.C. § 1404(a). This statute provides that: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Defendant argued that transfer was appropriate in light of the choice of forum agreement. In its Order, this Court found the choice of forum agreement to be enforceable, but declined to transfer because the location of the alleged wrong and the delay to Plaintiff resulting from a transfer favored retention. Defendant moves for reconsideration on the basis that Plaintiff will not be prejudiced by a transfer. Plaintiff argues that the choice of forum agreement is unenforceable.

a. Validity of Choice of Forum Agreement

Before this Court can consider a choice of forum agreement in its transfer analysis, it must determine whether it is enforceable. See Speed, 246 F.Supp.2d at 672. A choice of forum agreement is unenforceable if (1) enforcement of the clause would effectively prevent the plaintiff from having his day in court; (2) the forum agreement was procured by overreaching or fraud; or (3) the Court's enforcement of the forum selection clause would violate a strong public policy. See id.

The choice of forum agreement between Plaintiff and Defendant consists of a single sheet of paper. It is titled, appropriately, "Choice of Forum Agreement" ("Agreement"). In it, Plaintiff agrees to file suit only in Louisiana. The middle of the page contains a paragraph which states, in bold type: "I SPECIFICALLY AGREE THAT I WILL NEVER FILE A SUIT FOR PERSONAL INJURY AGAINST CENAC TOWING, INC. IN A STATE OR FEDERAL COURT LOCATED OUTSIDE THE STATE OF LOUISIANA, INCLUDING THE STATE OF TEXAS." The Agreement is signed by the Plaintiff and two witnesses and is dated June 26, 2003.

In its Response to Defendant's Motion to Transfer Venue, Plaintiff did not claim that enforcement of the Agreement would deny Plaintiff his day in Court or that it was procured by overreaching or fraud. Rather, Plaintiff alleged that enforcement of the Agreement would violate the strong public policy of protecting seamen. In the Order, this Court rejected Plaintiff's argument and found the Agreement to be enforceable because of the Fifth Circuit's decision in Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216 (5th Cir.1998). In Marinechance, the Fifth Circuit held that a forum selection clause in a seaman's employment contract was fair and enforceable. Id. at 221 ("[T]he forum selection clause is fundamentally fair. We find, then, that the forum selection clauses in the seamen's contracts are enforceable.").

In its Response to Defendant's Motion for Reconsideration, Plaintiff renews its claim that the Agreement is unenforceable because it violates a strong public policy of this Court. Plaintiff argues that the Jones Act incorporates the Federal Employers Liability Act, 45 U.S.C. §§ 51-60 ("FELA"), and that choice of forum agreements are unenforceable under FELA. Therefore, choice of forum agreements should not be enforceable in Jones Act claims. Plaintiff submits that Marinechance does not apply to American seamen asserting Jones Act claims and thus the portion of the Order upholding the validity of the Agreement was in error. For the following reasons, this Court agrees.

Forum selection clauses in maritime contracts are presumptively enforceable. The starting point for any discussion of forum selection clauses in maritime contracts is The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In Bremen, a Houston-based American company, Zapata, contracted with a German corporation, Unterweser, to tow a drilling rig from the coast of Louisiana to the Mediterranean Sea. The contract contained a forum selection clause designating the London Court of Justice as the appropriate forum for any dispute arising from the contract. A severe storm damaged the drilling rig while it was in international waters, and Zapata instructed Unterweser to tow it to Tampa, Florida, the nearest port of...