United States District Court, S.D. Texas, Houston Division
CADDELL CONSTRUCTION CO. DE, LLC, Plaintiff,
DANMAR LINES, LTD., Defendant.
Rosenthal Chief United States District Judge.
defendant, Danmar Lines, LTD, moves to transfer this case to
the United States District Court for the Southern District of
New York. (Docket Entry No. 9). The plaintiff, Caddell
Construction Co. (DE), LLC, objects. (Docket Entry Nos. 15,
16). Based on the pleadings, the motion and response, the
briefs, the record, and the applicable law, Danmar's
motion to transfer is granted. The reasons for this ruling
are set out below.
agreed to deliver 28 of Caddell's air handling units from
Norfolk, Virginia to a United States Embassy in Kabul,
Afghanistan. (Docket Entry No. 1-1 at 3-4). Caddell alleges
that its cargo was damaged in transit between Karachi Port,
Pakistan and Kabul. Id. at 4. Caddell alleges that
Danmar breached its contract with Caddell, was negligent, and
breached its bailment obligations. (Docket Entry No. 1).
moved to transfer to the Southern District of New York under
28 U.S.C. § 1404(a) because the bills of lading include
a forum-selection clause specifying that as the venue where
any claims against Danmar will be determined. (Docket Entry
No. 9 at 8-9). The forum-selection clause states:
14.2. U.S. Carriage - The contract evidenced by or contained
in this bill of lading or otherwise arising from the Carriage
or in relation to the Goods shall be governed by and
construed in accordance with the laws of the United States of
America and particularly 28 USC Section 1300 et seq. of U.S.
COGSA. Any claim against the Carrier under this bill of
lading or otherwise arising from or in relation to the
Services or the Goods shall be determined exclusively by the
United States District Court for the Southern District of New
York to whose jurisdiction the Merchant irrevocably submits.
The Merchant agrees that it shall not institute legal
proceedings in any other court and shall indemnify the
Carrier for all legal costs and expenses incurred by the
Carrier to transfer or to remove a suit filed in another
(Docket Entry No. 9-2 at 15). Danmar argues that transfer
will not cause administrative difficulties, there are no
local interests favoring resolution in Texas, and New York
federal courts are as familiar with admiralty law as those in
Texas. (Docket Entry No. 9 at 11-14).
responds that a separate and prior agreement-the
"purchase order"-not the bills of lading, controls.
(Docket Entry Nos. 15, 16). The purchase order does not have
a forum-selection clause. Caddell concedes that neither party
formally executed the purchase order, (Docket Entry No. 16 at
6), but argues that they operated under its terms and rates.
(Docket Entry No. 16-1 at 5); (Docket Entry No. 16-4 at
13-17). Caddell asserts that the bills of lading are
"mere receipts" because the purchase order governs.
Caddell argues that it "never agreed to the default
application of the [bills of lading] to this dispute and was,
in fact, never made aware of the alleged default application
of the [bills of lading]." (Docket Entry No. 20-1 at 1).
Caddell argues that it had no notice of the terms and
conditions because it received a scan of only the front side
of the bills of lading. Id. at 1, 5. Caddell asserts
that the consignee, the U.S. Embassy in Kabul, received the
originals of the bills of lading, not Caddell. Id.
responds that Caddell had notice of the bills of lading terms
because Danmar was a licensed non-vessel operating common
carrier and had to file its bill of lading form with the
United States Federal Maritime Commission for approval.
(Docket Entry No. 27 at 2); (Docket Entry No. 19-1 at ¶
3); (Docket Entry No. 19-2 at ¶ 3). Danmar argues that
this filing made the bill of lading public and put Caddell on
constructive notice of its terms and conditions. (Docket
Entry 27 at No. 2-3).
The Legal Standard
motion to change venue under 28 U.S.C. § 1404(a) is
appropriate where venue is proper under 28 U.S.C. §
1391, but where, "[f]or the convenience of parties and
witnesses, in the interest of justice, " the defendant
seeks to transfer the suit to another "district or
division where it might have been brought." Id.
§ 1404(a). "[T]he purpose of [§ 1404(a)] is to
prevent the waste'of time, energy and money' and
'to protect litigants, witnesses and the public against
unnecessary inconvenience and expense.'" Van
Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting
Cont'l Grain Co. v. The FBL-585, 364 U.S. 19
(I960)). "There can be no question but that the district
courts have 'broad discretion in deciding whether to
order a transfer.'" In re Volkswagen of Am.,
Inc., 545 F.3d 304, 311 (5th Cir.2008) (quoting
Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.
1998)). "In exercising that discretion, courts are to
examine a collection of private and public factors."
Cooper Lighting, LLC v. Kumar, 2013 WL 5775687, at
*9 (S.D. Tex. Oct. 25, 2013).
private interest factors are: (1) the relative ease of access
to sources of proof; (2) the availability of compulsory
process to secure the attendance of witnesses; (3) the cost
of attendance for willing witnesses; and (4) all other
practical problems that make trial of a case easy,
expeditious and inexpensive. The public interest factors are:
"(1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized
interests decided at home; (3) the familiarity of the forum
with the law that will govern the case; and (4) the avoidance
of unnecessary problems of conflict of laws [or in] the
application of foreign law." In re Volkswagen of
Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quotations
and citations omitted).
forum-selection clause . . . may be enforced through a motion
to transfer under § 1404(a)." Ail. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas,
134 S.Ct. 568, 579, (2013). "When the parties have
agreed to a valid forum-selection clause, a district court
should ordinarily transfer the case to the forum specified in
that clause, " and "[o]nly under extraordinary
circumstances unrelated to the convenience of the parties
should a § 1404(a) motion be denied." Id.