On August 13, 2013, Judge Boyle issued an Order Granting Motion to Transfer in LeBlanc v. C.R. England (Order available here). LeBlanc claimed that her former employer and supervisor sexually harassed her during her employment. In connection with her employment, LeBlanc signed a “Confidential Offer of Employment” that contained a forum selection clause stating that venue for any “claims” or “litigation” arising out of her employment would be “the State of Utah.” Defendant then filed a motion to dismiss and motion to transfer based upon the forum selection clause.
Judge Boyle began with an in-depth discussion of the history of forum selection clauses, and summarized the current state of the law as follows:
First, under current Fifth Circuit authority, Rule 12(b)(3) and its Bremen-based presumption of validity toward forum selection clauses does not apply where a transfer under § 1404(a) is available. In re Atlantic, 701 F.3d at 740 (“dismissal is inappropriate when transfer pursuant to § 1404(a) is available”); 14D Wright, Miller, & Cooper, Federal Practice and Procedure § 3803.1, at 117 (3d ed. 2007).
Second, and conversely, § 1404(a)’s balancing approach “has no application” when transfer to another federal court is not possible, such as when a “valid forum selection clause mandates venue in a state or foreign court,” because § 1404(a) only allows for transfer within the federal system. Wright, Miller, & Cooper, Federal Practice and Procedure § 3803.1, at 117 (3d ed. 2007); see also In re Atlantic, 701 F.3d at 740 and Int’l Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir. 1996)(§ 1404(a)’s “broad-based balancing” not appropriate where forum selection clause limits venue to a specific state court).
Finally, and it stands to reason, under the foregoing line of cases from the Fifth Circuit, that the moving party’s choice of procedural mechanisms–Rule 12(b)(3) or § 1404(a)–does not dictate the court’s choice of analytical tools. See 5B Wright & Miller, Federal Practice and Procedure § 1352, p. 31(3d ed. Supp. 2013)(courts have rejected parties’ motions to dismiss when § 1404(a) transfer is available, noting “a growing number” of federal courts have determined that § 1404(a) transfer is the “preferred method”) (internal citations omitted); and see In re Atlantic,701 F.3d at 738 (“[D]ismissal is inappropriate when transfer pursuant to § 1404(a) is available.”). That said, only a minority of federal appeals courts follow the Fifth Circuit’s approach as to the application of Rule 12(b)(3) versus § 1404(a) to forum selection clauses.
The Court determined that the forum selection clause at issue provided for venue in state and federal courts in Utah:
In sum, the Court determines that the parties’ forum selection clause in this case does not limit venue to an arbitral, foreign or state court forum, but instead also allows the parties to litigate their claims in Utah federal court. That so, the Court, in accord with In re Atlantic, must deny England’s motion to dismiss the case under Rule 12(b)(3) and instead consider England’s motion to transfer venue to a Utah federal court under the standards of § 1404(a).
After weighing the relevant public and private interest transfer factors, Judge Boyle determined that the case should be transferred to the District of Utah. One main consideration in the transfer analysis was the forum selection clause:
Having decided that the forum selection clause is applicable to all claims in this action, the Court now must determine if the forum selection clause is enforceable. Federal law determines whether the forum selection clause is enforceable. Ginter v. Belcher, Prendergast & Laporte, 536 F.3d 439, 441 (5th Cir. 2008). Forum selection clauses “are presumed enforceable, and . . . should be upheld unless the party opposing its enforcement can show that the clause is unreasonable.” Id. A forum selection clause may be 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.” Haynsworth v. The Corporation, 121 F.3d 956, 963 (5th Cir. 1997) (internal quotation omitted). . . . In light of Stewart’s guidance that a forum selection clause is “a significant factor that figures centrally” in the district court’s § 1404(a) transfer analysis, the Court determines the forum selection clause here weighs heavily in favor of transfer to the District of Utah. See Stewart, 487 U.S. at 29.
