    Case: 12-50826         Document: 00512058124          Page: 1    Date Filed: 11/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                FILED
                                                                             November 19, 2012
                                        No. 12-50826
                                                                               Lyle W. Cayce
                                                                                    Clerk
In re: ATLANTIC MARINE CONSTRUCTION COMPANY, INC.,

                                                    Petitioner



                        Petition for a Writ of Mandamus to the
                          Western District of Texas, Austin


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This case turns on the proper procedural treatment of a forum-selection
clause. In April 2009, the United States Corps of Engineers contracted with
Atlantic Marine Construction (“Atlantic”) for construction of a child development
center at Fort Hood, located in the Western District of Texas. In connection with
that contract, Atlantic entered into a Subcontract Agreement with J-Crew
Management, Inc. (“J-Crew”) for provision of construction labor and materials.
This Subcontract Agreement included a forum-selection clause, providing 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, J-Crew filed suit against Atlantic in
the Austin Division of the Western District of Texas,1 alleging that Atlantic



      1
          The district court had diversity jurisdiction. 28 U.S.C. § 1332.
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failed to pay J-Crew for work performed under the Subcontract Agreement.
Atlantic moved to dismiss J-Crew’s suit under Federal Rule of Civil Procedure
12(b)(3) and 28 U.S.C. § 1406, arguing that the forum-selection clause obligated
J-Crew to bring suit in Virginia. Alternatively, Atlantic 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 first
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. Atlantic petitions this Court for a
writ of mandamus directing the district court to dismiss the case or transfer it
to the United States District Court for the Eastern District of Virginia.


                                               I.
      Three requirements must be met before a writ of mandamus may issue.
First, the petitioner must have no other adequate means of relief.2 Second, the
petitioner’s right to issuance of the writ must be “clear and indisputable.”3
Third, “the issuing court, in the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.”4
      With respect to the second requirement—that the petitioner’s right to
issuance of the writ must be “clear and indisputable”—this Court has made clear
that “we are not to issue a writ to correct a mere abuse of discretion, even though


      2
          In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc).
      3
          Id. (quoting Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380–81 (2004)).
      4
          Id. (quoting Cheney, 542 U.S. at 380–81).

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such might be reversible on a normal appeal.”5 Instead, we will only grant
mandamus relief when errors “produce a patently erroneous result” and “clearly
exceed[] the bounds of judicial discretion.”6
       Atlantic urges that the district court clearly abused its discretion (1) by
considering enforcement of the forum-selection clause under § 1404(a), instead
of under Rule 12(b)(3) and § 1406, and (2) by committing errors when conducting
its analysis under § 1404(a). Because we find the district court did not clearly
abuse its discretion in either respect, we deny Atlantic’s petition.


                                                II.
       Atlantic first argues that the district court clearly abused its discretion by
using § 1404(a), instead of Rule 12(b)(3) and § 1406, to enforce the contractual
forum-selection clause. We begin with a brief explanation of the relevant
statutory framework. Section 1391 governs whether venue is proper in a given
federal district.7 Rule 12(b)(3) and § 1406(a) provide for dismissal or transfer of
an action that has been brought in an improper venue.8 By contrast, when the
action has been brought in a proper venue, section 1404 provides for transfer of
the action within the federal system to another federal venue where the action
could have been brought.9 Thus, the determination of whether § 1406 or

       5
           Id. at 310.
       6
           Id.
       7
           See 28 U.S.C. § 1391.
       8
         Rule 12(b)(3) provides for a motion to dismiss for improper venue. FED. R. CIV. P.
12(b)(3). Section 1406(a) provides that “[t]he 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.
       9
         Section 1404(a) provides that “[f]or 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 or to any district or division to which all parties have
consented.” 28 U.S.C. § 1404(a).

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§ 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
§ 1391.10 Federal circuit courts are divided on the issue.11
       The district court below 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 approach taken by a majority of district courts in this Circuit12 and
a minority of the federal appellate courts.13 We agree with that approach.
       In reaching the conclusion that enforcement of the forum-selection clause
under § 1404(a) was proper, we find the Supreme Court’s opinion in Stewart
Organization, Inc. v. Ricoh Corp. instructive.14 In that case, the plaintiff filed
suit in the Northern District of Alabama and the defendant moved to dismiss the
case or transfer venue to the Southern District of New York based on a


       10
         In this case, venue was proper in the Western District of Texas under § 1391 because
the parties entered into and performed the Subcontract Agreement in that judicial district.
See 28 U.S.C. § 1391(b)(2).
       11
         Compare TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 477–78 (2d Cir. 2011),
and Slater v. Energy Servs. Grp. Int’l Inc., 634 F.3d 1326, 1333 (11th Cir. 2011), with Kerobo
v. Sw. Clean Fuels Corp., 285 F.3d 531, 535 (6th Cir. 2002), and Jumara v. State Farm Ins.
Co., 55 F.3d 873, 879 (3d Cir. 1995).
       12
         See, e.g., Williamson-Dickie Mfg. Co. v. M/V Heinrich J, 762 F. Supp. 2d 1023, 1028
(S.D. Tex. 2011); Se. Consulting Grp., Inc. v. Maximus, Inc., 387 F. Supp. 2d 681, 684–85 (S.D.
Miss. 2005); Lafargue v. Union Pac. R.R., 154 F. Supp. 2d 1001, 1003–04 (S.D. Tex. 2001);
Brock v. Baskin-Robbins USA Co., 113 F. Supp. 2d 1078, 1082–82 (E.D. Tex. 2000).

       13
            See Kerobo, 285 F.3d at 538–39; Jumara, 55 F.3d at 879–79.
       14
            487 U.S. 22 (1988).

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contractual forum-selection clause. The Supreme Court held that when an
action is filed in federal court under diversity jurisdiction, federal law,
specifically § 1404(a), not state law, governs a motion to transfer to another
federal court pursuant to a forum-selection clause. In doing so, the Stewart
Court “implicitly held that a forum selection clause does not render the venue
of an otherwise properly venued claim improper” because “Section 1404(a) is the
proper procedural tool for transferring a case only when venue is proper in the
chosen district; if venue is improper, Section 1406(a) is used to transfer venue.”15
The Stewart Court explained that a forum-selection clause should receive “the
consideration for which Congress provided in § 1404(a).”16 Thus, Stewart
“strongly implies that Congress' determination of where venue lies cannot be
trumped by private contract and that, therefore, a forum selection clause cannot
render venue improper in a district if venue is proper in that district under
federal law.”17 This result makes sense “because private parties should not have
the power to transcend federal venue statutes that have been duly enacted by
Congress and render venue improper in a district where it otherwise would be
proper under congressional legislation.”18 That Atlantic Marine claims to have
exactly this power is understandable. Dismissal under Rule 12(b)(3) or transfer
under § 1406 would deny district courts both a role in making the transfer and
its capture of Texas law. While Atlantic Marine bargained for a choice of forum,
it failed to obtain a choice of law provision.
         Although Atlantic urges otherwise, our approach is in accord with Fifth
Circuit precedent holding that dismissal under Rule 12(b)(3) is the proper

         15
              14D CHARLES A. WRIGHT, ET. AL., FEDERAL PRACTICE AND PROCEDURE § 3803.1 (3d
ed.).
         16
              Stewart, 487 U.S. at 31.
         17
              WRIGHT, supra note 13, at § 3803.1 (3d ed.).
         18
          Id. However the concurring opinion reads Stewart, it is plain that its view would
render it a dead letter.

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approach when a forum-selection clause designates an arbitral, foreign, or state
court forum.19 When a forum-selection clause designates an arbitral, foreign, or
state court forum, a district court does not have the option of transferring the
case to the designated forum because § 1404(a) and § 1406 only allow for transfer
within the federal system. Because dismissal is the only available option for the
district court in those cases, dismissal is the proper remedy.20 By contrast, this
Court has implied that dismissal is inappropriate when transfer pursuant to
§ 1404(a) is available, as is the case when a forum-selection clause designates a
federal forum.21
       Nor is our approach inconsistent with this Court’s decision in Jackson v.
West Telemarketing Corp. Outbound.22 Jackson does not necessarily rest on a
finding that a forum-selection clause renders venue improper in any venue other
than that designated—a holding we would not quickly attribute to the panel as
it cannot be squared with Stewart. Faced with an opaque record, the panel was
unable to find footing for concluding more than that venue was improper in the
California district court; that conclusion came from the inference that because
transfer was under § 1406 and no § 1404 analysis was conducted, venue must
have been improper. Why it was improper was of lesser concern and the panel


       19
          See, e.g., Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d 898 (5th Cir. 2005)
(arbitral forum); Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33 (5th Cir. 1997) (foreign
forum); Int’l Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir. 1996) (state court
forum).
       20
            See Amplicon, 77 F.3d at 115.
       21
          Id. at 113–14 (“Although we would prefer to apply the same Stewart balancing in
diversity cases to motions to dismiss and motions to transfer, the other federal courts have
decided otherwise and continue to apply Bremen to motions to dismiss based on a forum
selection clause . . . . Still other courts have suggested that a motion to dismiss is not an
appropriate means of enforcing a forum selection clause, and that instead the motion should
be treated as a motion to transfer. However, these cases, unlike our own, did not involve a
forum selection clause that limited the agreed venue to a state court.” (internal citations
omitted)).
       22
            245 F.3d 518 (5th Cir. 2001).

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did not say. Because the vitality of venue in California was muddled, we cannot
exclude the possibility that venue was improper under § 1391 in the district
where originally filed. Reading Jackson in conformity with Stewart we cannot
conclude that Jackson determines the outcome in this case.
      In short, Stewart did not hold that § 1404 is always the proper approach
when the parties have entered into a contractual forum-selection clause. The
choice between § 1404 and § 1406 depends on whether venue was statutorily
proper under § 1391 in the forum where the action was initially filed. A forum-
selection clause is properly enforced via § 1404(a) as long as venue is statutorily
proper in the district where suit was originally filed and as long as the forum-
selection clause elects an alternative federal forum. When the forum-selection
clause designates an arbitral, foreign, or state court forum, the federal district
court is without power to transfer and thus must dismiss the case as long as it
determines the forum-selection clause is enforceable.


                                       III.
      Atlantic next argues that even if the district court correctly chose § 1404(a)
as the proper procedural mechanism for enforcing the forum-selection clause, it
made several errors in conducting its analysis under § 1404(a) that show a clear
abuse of discretion. Specifically, Atlantic alleges that the district court clearly
erred (1) by placing the burden of proof under § 1404(a) on Atlantic, the party
seeking to enforce the forum-selection clause, to show why transfer to the
designated forum should be granted; (2) by considering inconvenience that was
foreseeable at the time the parties entered into the Subcontract Agreement; (3)
by considering non-existent difficulties in obtaining depositions from non-party
witnesses located in Texas; and (4) by not considering the public interests served
by enforcement of the forum-selection clause. After reviewing the record and
case law with respect to each of these alleged errors, we cannot find that the
district court clearly abused its discretion.

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                                               A.
       First, Atlantic contends that although the movant seeking to transfer
under § 1404(a) generally bears the burden of proving the propriety of transfer,
when the parties have entered into a contractual forum-selection clause the
party seeking to avoid the contractually-chosen forum bears the burden of
proving why the contractual choice should not be honored. Given the fact that
this Court has never confronted that issue, we cannot conclude that the district
court clearly abused its discretion by placing the burden on the movant.
Moreover, no part of the Supreme Court’s decision in Stewart necessarily
requires the burden to be placed on the non-moving party. The Supreme Court
merely insisted that the forum-selection clause be “a significant factor that
figures centrally in the district court’s calculus.”23 Placing the burden on the
moving party still allows the court to give the forum-selection clause “the
consideration for which Congress has provided in § 1404” because the district
court will consider the forum-selection clause in evaluating both the private and
public interest factors.24             Although transfer under § 1404(a) involves
consideration of “the convenience of parties and witnesses” and “the interest of
justice,” that does not mean that in the absence of burden shifting the § 1404(a)
approach will disfavor forum-selection clauses or allow litigants to easily
circumvent their contractually-chosen forum. Instead, by incorporating the
forum-selection clause into the private and public factor analysis, it will be



       23
            Stewart, 487 U.S. at 29.
       24
          Id. at 31; see id. at 29–30 (“A motion to transfer under § 1404(a) thus calls on the
district court to weigh in the balance a number of case-specific factors. The presence of a
forum-selection clause such as the parties entered into in this case will be a significant factor
that figures centrally in the district court's calculus. In its resolution of the § 1404(a) motion
in this case, for example, the District Court will be called on to address such issues as the
convenience of a Manhattan forum given the parties’ expressed preference for that venue, and
the fairness of transfer in light of the forum-selection clause and the parties’ relative
bargaining power. The flexible and individualized analysis Congress prescribed in § 1404(a)
thus encompasses consideration of the parties’ private expression of their venue preferences.”).

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difficult for a party to avoid the contractually-chosen forum. In light of the
Supreme Court’s language in Stewart and the realities of the § 1404(a) analysis,
we are not persuaded that the district court clearly mis-allocated the burden
under § 1404(a).


                                            B.
       Second, Atlantic argues that the district court gave undue consideration
to the foreseeable inconvenience J-Crew would face if the case were transferred
to the Eastern District of Virginia. Atlantic urges that because J-Crew entered
into a valid forum-selection clause it should have been precluded from arguing
that the selected forum is inconvenient if such inconvenience was foreseeable at
the time of contracting. Stewart teaches that Congress has by § 1404(a) removed
the lateral transfer of cases among federal courts from the control of private
contracts. While a contracted-for choice of forum remains a significant factor,
it is not controlling. To remove all matters of inconvenience foreseeable when
the parties reached their choice of forum agreement from the required weighing
by federal district judges cannot be squared with Stewart. The argument is
simply a slip past its core holding—institutional concerns cannot be contracted
away by private parties. Finally, we add that our consideration of this late-
arriving argument as a variation of the arguments made below is generous.
Atlantic failed to argue below that the district court should not consider
foreseeable inconvenience and Atlantic points to no controlling authority holding
foreseeability is a necessary consideration under § 1404(a).25 Thus, we conclude
that the district court did not “clearly and indisputably” err by failing to consider
an argument that was not before it and that was not compelled by precedent.


      25
         M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), the only case Atlantic cites
for this proposition, did not employ a § 1404(a) analysis, so even if foreseeability is an
appropriate consideration under the Bremen factors, it does not necessarily follow that the
same is true in a § 1404(a) analysis.

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                                                C.
      Third, Atlantic argues that the district court clearly erred in considering
non-existent difficulties J-Crew would face in obtaining depositions from non-
party witnesses in Texas if the case were transferred to Virginia. Atlantic
contends that these alleged difficulties are unfounded because under Rule
45(a)(2)(B) the parties would be able to issue subpoenas to compel witnesses to
sit for depositions in Texas.26 Atlantic’s argument misses the point. The district
court below was mainly concerned with J-Crew’s ability to secure witnesses for
trial, not for depositions. And the district court’s concerns with respect to J-
Crew securing trial testimony were well-founded, notwithstanding Rule
45(a)(2)(B). J-Crew identified seven non-party witnesses that may provide
relevant testimony who reside in Texas and any trial subpoenas for witnesses
to travel more than 100 miles would be subject to motions to quash under Rule
45(c)(3)(ii).27 Thus, we are unpersuaded by Atlantic’s argument that the district
court clearly erred by considering J-Crew’s ability to secure testimony for trial
in Virginia.


                                               D.
      Finally, Atlantic argues that the district court clearly erred in not
recognizing the strong public interest favoring enforcement of forum-selection
clauses. However, Atlantic failed to raise this argument below. In fact, the only
argument Atlantic made with respect to the public’s interest in transferring the
case to Virginia was that courts in the Eastern District of Virginia resolve cases
faster than those in the Western District of Texas, a factor considered and
rejected by the district court below. Regardless, the argument here is essentially


      26
           FED. R. CIV. P. 45(a)(2)(B).
      27
           FED. R. CIV. P. 45(c)(3)(ii); see In re Volkswagen of Am., 545 F.3d at 316.

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that because the forum-selection clause did not dictate a different outcome it
must not have been weighed properly. The district court was plainly conversant
with Stewart.     We cannot conclude that the district court “clearly and
indisputably erred” by not giving proper weight to the public interest in ways
Atlantic did not even raise before the district court.


                                       IV.
      The core of Stewart is the directive of Congress that allocation of matters
among the federal district courts is not wholly controllable by private contract.
Rather the agreement of parties will signify in the district court’s allocating
decision, tempering the private agreement’s reflection of private interests with
the public interest attentive to the usual metrics of this case law, such as time
to trial and convenience of witnesses. The contention that dismissal may be
under § 1406 or Rule 12(b)(3) empties Stewart of force and confounds the plain
language § 1406. Thus, we DENY Atlantic Marine’s Petition for a Writ of
Mandamus.




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HAYNES, Circuit Judge, specially concurring:
        In light of the majority opinion, I cannot credibly contend that the right to
the writ is “clear and indisputable” as required for mandamus relief. See In re
Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc). Thus, I
concur in the majority opinion’s holding.
I. The District Court Erred
        I submit, however, that the district court erred in its ruling and approach.
I also respectfully diverge from the analysis of the majority opinion. Plainly
stated, the Supreme Court has made clear that forum-selection clauses are
enforceable. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972); see also
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94 (1991) (explaining that
forum-selection clauses aid in avoiding confusion among parties regarding the
proper forum, limiting litigation expenses, and “conserving judicial resources
that otherwise would be devoted to deciding [venue disputes].” (citing Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring))). The
effect of the district court’s ruling, however, is to make forum-selection clauses
enforceable by specific performance only at the election of the district court,
which is free to render a decision that evades practical review, given our
substantial limits on mandamus review, see In re Volkswagen, 545 F.3d at 310-
11,    and the practical unavailability of review on appeal following final
judgment. Id. at 319 (“[T]he prejudice suffered [from an erroneous transfer
decision] cannot be put back in the bottle . . . an appeal will provide no remedy
for a patently erroneous failure to transfer venue.”).
        In M/S Bremen, the Supreme Court stated that forum-selection clauses
“are prima facie valid,” and should generally be enforced “unless [the party
challenging enforcement] could clearly show that enforcement would be
unreasonable and unjust, or that the clause was invalid for such reasons as
fraud or overreaching.” Id. at 10, 15. Under this standard, the parties’ forum-

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                                        No. 12-50826

selection clause, which requires that disputes be brought in a specific state or
federal court in Virginia, is enforceable as J-Crew Management, Inc. (“J- Crew”)
has neither shown nor made any attempt to show any injustice in proceeding in
Virginia. J-Crew simply violated its agreement and filed suit against Atlantic
in the Western District of Texas.
       The district court denied Atlantic’s motion to dismiss because it found
venue was proper in the Western District of Texas pursuant to 28 U.S.C. § 1391.
The court then stated it would consider the parties’ forum-selection clause
merely as a factor in denying Atlantic’s motion to transfer pursuant to § 1404(a),
although it gave very short shrift to the forum-selection clause in the ensuing
analysis. The majority opinion correctly concludes that a forum-selection clause
may be enforced through a motion to transfer based on § 1404(a). See, e.g.,
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). I disagree, however,
with the holding that this vehicle for relief is the exclusive means of enforcing
a forum-selection clause that contemplates a federal forum when the original
federal forum is valid under a permissive venue statute.
II. The Majority Opinion’s Analysis is Incorrect
       A.     Forum-Selection Clauses Do Not “Transcend” Permissive
              Venue Statutes
       The majority opinion reasons that a motion to dismiss or transfer pursuant
to § 1406 cannot be granted when a forum-selection clause contemplates another
federal forum and the plaintiff’s chosen forum is statutorily permissive because
doing so would allow private parties to transcend federal venue statutes.
However, the statute in question here is permissive, not mandatory.1 See 28

       1
           Although the statute that purportedly establishes venue in this case is permissive,
it is significant to note that this circuit has found that forum-selection clauses may trump even
seemingly mandatory venue statutes. For example, Congress provided that any action under
the Miller Act, 40 U.S.C. §§ 3131-3134, “must be brought . . . in the United States District
Court for any district in which the contract was performed and executed . . . .” 40 U.S.C. §
3133 (emphasis added). This circuit has held that this provision in the Miller Act “is not

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                                       No. 12-50826

U.S.C. § 1391. Significantly, § 1391 is a general and permissive venue statute
that provides “a civil action may be brought in . . . a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.”
See 28 U.S.C. § 1391(b)(2) (emphasis added).                 Unlike other statutes that
mandate venue in a particular forum, § 1391 does not mandate that venue be
laid in a particular district.        Accordingly, in the absence of congressional
direction otherwise, the parties remain free to consider all permissive venues
and to “var[y] by their agreement,” 588 F.2d at 95, the number of venues
through a forum-selection clause. In so doing, the parties do not transcend
federal law, but instead agree that neither will seek to maintain venue in certain
otherwise permissive forums.2
       Here, because J-Crew and Atlantic contracted to limit the scope of
permissive federal forums to the Eastern District of Virginia, the Western
District of Texas becomes a “wrong venue.” The district court should have given
effect to the parties’ valid forum-selection clause and either dismissed the action
for improper venue under 12(b)(3) or transferred it pursuant to § 1406. The
parties did not seek to transcend the applicable federal venue statute; instead,
each merely agreed that it would not bring suit in any other permissive federal
forum apart from the Eastern District of Virginia, a permissive venue. This
agreement does not replace or contradict § 1391, but instead only limits the



jurisdictional but only a venue provision . . . [which] may be varied by contract unless under
the circumstances the agreement is unreasonable.” In re Fireman’s Fund Ins. Cos., 588 F.2d
93, 95 (5th Cir. 1979) (citations omitted) (denying a petition for writ of mandamus seeking
reversal of a district court’s decision to transfer an action to a venue contemplated by a
forum-selection clause pursuant to a motion to transfer based on § 1404(a)). The court
explained that the seemingly mandatory venue provision “exists for the convenience of the
parties. Such a provision is subject to variation by their agreement . . . .” Id.
       2
         The Eastern District of Virginia is also a permissive venue under § 1391(a)(1) & (a)(2)
because all of the Defendants reside there and it is the place where a substantial part of the
alleged events or omissions giving rise to J-Crew’s claims occurred.

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                                  No. 12-50826

parties’ prerogative to avail themselves of the full scope of permissive venues
that the statute would otherwise provide.
      B.    Stewart Does Not Require a Contrary Result
      The majority opinion’s reliance on Stewart to support the proposition that
federal venue law must trump forum-selection clauses that contemplate a
federal forum is misplaced. Similar to the forum-selection clause at issue here,
Stewart involved a forum-selection clause that allowed for suit only in specific
state or federal courts. 487 U.S. at 24. Stewart’s narrow holding determined
that federal law, rather than state law, applies to a party’s motion to transfer in
a diversity action filed in federal court.     See id. (describing the question
presented as “whether a federal court sitting in diversity should apply state or
federal law in adjudicating a motion to transfer a case to a venue provided in a
contractual forum-selection clause.” (emphasis added)). The Court specifically
noted that the defendant’s motion to dismiss based on § 1406 was not at issue
on appeal because the claim of “improper venue” had been waived by the
defendant. See id. at 28 n.8.
      We have recognized the limited scope of Stewart, explaining that the case
holds “that § 1404(a) is an appropriate vehicle for such a transfer because it
allows for an individualized assessment of fairness and convenience, with a
forum selection clause being one factor for consideration. Stewart does not
mandate that whenever a forum selection clause exists any transfer must fall
under § 1404(a).” Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518,
522 (5th Cir. 2001) (emphasis removed). Although limited to the question of
whether federal or state law applies in federal venue disputes, Stewart itself
illustrates that an agreement between private parties can render inappropriate
an otherwise appropriate federal forum. On remand from the Supreme Court
in that very case, the Eleventh Circuit issued a writ of mandamus ordering the
case transferred to the venue specified in the parties’ forum-selection clause. In

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                                    No. 12-50826

re Ricoh Corp., 870 F.2d 570, 571 (11th Cir. 1989). In enforcing the forum-
selection clause, the court noted that the case did not present the “‘exceptional’
situation in which judicial enforcement of a contractual choice of forum clause
would be improper.” Id. at 574 (citing Stewart, 487 U.S. at 33 (Kennedy, J.,
concurring)). Thus, the actual result of Stewart is exactly the opposite of the
result reached here.
         The Supreme Court has not read Stewart the same way as the majority
opinion. Indeed, following Stewart, the Court in Shute embraced M/S Bremen’s
holding and enforced a forum-selection clause by affirming the grant of a motion
for summary judgment. See 499 U.S. at 591-94. The Court’s approval of the use
of a summary judgment motion as a vehicle for enforcing the forum-selection
clause—which implicitly contemplated a federal forum by allowing for suit in
any court in “the State of Florida”—demonstrates that Stewart does not render
forum-selection clauses enforceable only under the discretion of a district court
performing a § 1404(a) analysis.          See id. at 588-89.     Instead, as Shute
demonstrates, these clauses may also be given effect when a party alleges venue
is not proper under a motion to dismiss or a motion for summary judgment.
Accordingly, I respectfully submit that the majority opinion takes Stewart too
far.
         C.    The Majority Opinion Is Contrary to the Majority of Circuit
               Courts and Inconsistent with Our Precedent
         My view is consonant with that of the majority of circuits which give effect
to a forum-selection clause through a motion to dismiss filed pursuant to Rule
12(b)(3) and § 1406. See, e.g., Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d
968, 970-73 (8th Cir. 2012) (rejecting the notion that a claim cannot be dismissed
under § 1406 for failure to comply with a forum-selection clause if venue is
otherwise appropriate under 28 U.S.C. § 1391); TradeComet LLC.com v. Google,
Inc., 647 F.3d 472, 478 (2d Cir. 2011) (noting that Stewart does not compel


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                                        No. 12-50826

consideration of a forum-selection clause under § 1404(a) and holding that “a
defendant may seek to enforce a forum selection clause under Rule 12(b)”);
Slater v. Energy Servs. Gr. Int’l, Inc., 634 F.3d 1326, 1333 (11th Cir. 2011) (“[W]e
conclude that § 1404(a) is the proper avenue of relief where a party seeks the
transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the
proper avenue for a party’s request for dismissal based on a forum-selection
clause.”); Hillis v. Heineman, 626 F.3d 1014, 1016 (9th Cir. 2010) (finding that
a party’s defense for improper venue under Rule 12(b)(3) based on a forum-
selection clause was valid and was not waived by the filing of a counterclaim);
Muzumdar v. Wellness Int’l Network, Ltd., 438 F.3d 759, 760-62 (7th Cir. 2006)
(“A challenge to venue based upon a forum selection clause can appropriately be
brought as a motion to dismiss the complaint under [Rule] 12(b)(3).”); Sucampo
Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548-50 (4th Cir. 2006)
(holding that a forum-selection clause may be enforced “under Rule 12(b)(3) as
a motion to dismiss on the basis of improper venue”); Riley v. Kingsley
Underwriting Agencies, Ltd., 969 F.2d 953, 954 (10th Cir. 1992) (affirming a
district court’s dismissal of claims based on a forum-selection clause that
contemplated a foreign jurisdiction).3



       3
           In contrast to these cases, the Third and Sixth Circuits embrace the majority
opinion’s approach in this case by concluding that, when venue is otherwise proper in the
original forum, § 1404(a) is the only appropriate procedural vehicle to enforce a forum-
selection clause that contemplates an alternative federal forum. See, e.g., Kerobo v. Sw. Clean
Fuels Corp., 285 F.3d 531, 538-39 (6th Cir. 2002); Jumara v. State Farm Ins. Co., 55 F.3d 873,
879 (3d Cir. 1995) (“Since venue is proper in the [district] where the action commenced, . . .
[t]he District Court should instead have applied the appropriate balancing test under 28
U.S.C. § 1404(a) to determine whether the case should proceed in the [district] or be
transferred to the [district where the forum-selection clause contemplates the action should
lie].”). More recently, however, the Sixth Circuit suggested that a forum-selection clause
contemplating both federal and state forums may be enforced through a motion to dismiss.
See Langley v. Prudential Mortg. Cap. Co., 546 F.3d 365, 366 (6th Cir. 2008) (remanding to the
district court “to entertain a motion to enforce the forum selection clause under [Rule] 12(b)(6)
or 28 U.S.C. § 1404(a)”).

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                                  No. 12-50826

      Our circuit has not addressed whether a forum-selection clause
contemplating a federal forum may be enforced through a motion to dismiss for
improper venue. However, as the majority opinion points out, we have found
that a Rule 12(b)(3) motion to dismiss for improper venue is an appropriate
vehicle for enforcing a forum-selection clause that contemplates state, foreign,
or arbitral forums. See Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d 898
(5th Cir. 2005) (arbitral forum); Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d
33, 37 (5th Cir. 1997) (foreign forum); Int’l Software Sys., Inc. v. Amplicon, Inc.,
77 F.3d 112, 115 (5th Cir. 1996) (state forum).
      Further, we suggested in Jackson that a forum-selection clause
contemplating a federal forum could be enforced through a motion to transfer for
improper venue based on § 1406. See 245 F.3d at 522. The choice-of-law
analysis in Jackson required us to consider whether a federal district court in
California transferred a case to a federal district court in Texas based on
§ 1404(a) or § 1406. We concluded that the California court ordered transfer
under § 1406 based on a forum-selection clause. Id. at 522-23. We specifically
noted that “Stewart does not mandate that whenever a forum selection clause
exists any transfer must fall under § 1404(a).” Id. at 522. The majority opinion
disregards Jackson’s guidance.
      D. The Forum-Selection Clause at Issue Should be Given Effect
      The effect of the majority opinion is to leave us with the somewhat bizarre
situation that forum-selection clauses are enforceable by specific performance
where the forum is state, foreign, or arbitral, but enforceable by specific
performance only at the mercy of the district court for federal courts. I submit
that we should adopt the approach of the majority of our sister circuits and use
§ 1406 transfers in these situations. Absent a mandatory venue statute, a valid
forum-selection clause renders any other forum inappropriate, regardless of



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                                       No. 12-50826

whether the forum contemplated by the parties is a state, federal, or foreign
venue.
       Congress, is of course, free to limit the enforcement of forum-selection
clauses if it so chooses, as it has done in the past. For example, after the
Supreme Court in Shute gave effect to a forum-selection clause in a cruise line’s
passage contract ticket, Congress initially amended 46 U.S.C. § 30509 to prevent
passenger ships from seeking enforcement of forum-selection clauses when
plaintiffs    raise    personal-injury        or   wrongful-death         claims.        See
Reynolds-Naughton v. Norwegian Cruise Line Ltd., 386 F.3d 1, 2 (1st Cir. 2004)
(explaining that § 30509 was initially amended to supercede Shute’s holding).
Interestingly, however, Congress ultimately re-amended the statute to allow for
the enforcement of forum-selection clauses in the context of passage contract
tickets. See id. at 2-3 (discussing the subsequent amendments to § 30509).
Congress continues to look favorably on forum-selection clauses, as reflected in
the recent amendment to § 1404(a) allowing for the transfer of cases to venues
chosen by agreement that would otherwise not be districts where an action
“might have been brought.” See § 1404(a).4


       4
         Specifically, this amendment provides that a transfer can be made to “any district or
division to which all parties have consented,” regardless of whether the venue would otherwise
be proper. See § 1404(a); see also Federal Courts Jurisdiction and Venue Clarification Act of
2011, Pub. L. No. 112-63, § 204, 125 Stat. 758, 764; 17 JAMES WM. MOORE ET AL., MOORE’S
FEDERAL PRACTICE §111.12(1)(c) (3d ed. Supp. 2012) (explaining that the amendment
superceded the requirement in Hoffman v. Blaski, 363 U.S. 335 (1960), that a transferring
court could only transfer to a venue with personal jurisdiction and “could not consider the
defendant’s consent to the transferee venue”). Accordingly, parties may seek transfer under
§1404(a) to a venue where the action could have otherwise been brought or that was consented
to by the parties through a forum-selection clause. See § 1404(a). This amendment does not
supercede the majority of federal circuits that allow for forum-selection clauses also to be
enforced through Rule 12(b)(3) motions or motions to transfer based on § 1406. Rather, by
explicitly providing that § 1404(a) allows for transfer to a venue that would otherwise be
invalid but for the parties consent, this amendment demonstrates that Congress recognizes
that forum-selection clauses may be enforced even where the chosen venue is not that chosen
by federal venue statutes.


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                                  No. 12-50826

      A forum-selection clause that was negotiated and agreed to by
sophisticated parties and is not challenged based on fraud, unreasonableness,
or anything similar should be given effect. As Atlantic notes, the negotiation of
a forum-selection clause involves various economic decisions and often requires
a party to make concessions in exchange for the assurance that potential
litigation will occur in a predetermined venue. Companies, such as Atlantic,
that conduct business throughout a broad geographical area rely on forum-
selection clauses to ensure that they can anticipate business costs and avoid
litigation in a plethora of possible venues. Section 1406 seems to be the cleanest
way to do so, treating the venue now “deselected” by the agreement as a “wrong”
venue. This approach does not transcend federal venue statutes, but instead
recognizes the ability of parties to “var[y] by their agreement,” 588 F.2d at 95,
the breadth of the scope of permissive venue statutes through their contractual
agreements.
      I note, however, that even if the majority opinion is correct that § 1404 is
the only appropriate procedural vehicle here, the district court still abused its
discretion. While stating that it considered the forum-selection clause as a
“factor,” the district court in practical terms gave it no weight and conducted a
standard § 1404 “convenience” analysis. I can discern no practical difference
between this district court opinion and that of a district court that was assessing
this same case without a forum-selection clause. Whatever the procedure may
be, the substance was wrong.
      Absent any claim of fraud or unreasonableness by J-Crew, mere
“convenience” should not trump the parties’ reasoned contract. Had the district
court given the forum-selection clause the deference it deserves, it would have
transferred the case under either §1404 or §1406.
      E. Conclusion



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                                      No. 12-50826

       We should not leave the enforcement by specific performance of otherwise
valid contractual forum selection clauses to the vicissitudes of virtually
unfettered judicial discretion. Absent some compelling countervailing factor
(something J-Crew does not even argue is present here), forum-selection clauses
such as this one should be and should have been enforced by transfer or
dismissal.5 Thus, while the very high standards for mandamus review coupled
with the majority opinion’s approach compel my concurrence in the judgment,
I conclude that the district court erred.
       Given the state of the law in this area, I encourage the parties to request
review of today’s decision by the United States Supreme Court, so it may
consider whether this area of the law would benefit from its further guidance.




       5
         That said, nothing in the majority opinion would preclude Atlantic’s seeking of some
other remedy for the clear breach. As Atlantic discussed during oral argument, J-Crew’s
disregard for the parties’ bargained-for agreement by bringing suit in Texas may result in
Atlantic incurring substantial litigation costs that it would have otherwise avoided. On
remand, it is free to seek damages for those costs.

                                             21
