Wednesday, October 9, 2013
It’s a case that only a true civil procedure & federal courts junkie could love. But if you’re in that category, today’s oral argument transcript in Atlantic Marine Construction Co. v. U.S. District Court (covered earlier here) is a nice read.
The Justices seemed to be enjoying themselves as well – so much so that Jay Wexler (Boston University, and the Bill James/Billy Beane of SCOTUS laugh statistics) proclaimed “Holy Yuksville” after counting six laughter incidents. What topic could possibly inspire such levity? Here are the questions presented:
Following the Court’s decision in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), the majority of federal circuit courts hold that a valid forum-selection clause renders venue “improper” in a forum other than the one designated by contract. In those circuits, forum-selection clauses are routinely enforced through motions to dismiss or transfer venue under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406. The Third, Fifth, and Sixth Circuits, however, follow a contrary rule. This Petition presents the following issues for review:
1. Did the Court’s decision in Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22 (1988), change the standard for enforcement of clauses that designate an alternative federal forum, limiting review of such clauses to a discretionary, balancing-of-conveniences analysis under 28 U.S.C. § 1404(a)?
2. If so, how should district courts allocate the burdens of proof among parties seeking to enforce or to avoid a forum-selection clause?
P.S. Kudos to Stephen Sachs (Duke) whose amicus brief was mentioned frequently during the argument.