     Case: 14-90040      Document: 00512851234         Page: 1    Date Filed: 11/28/2014



           IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                                  ___________________                      United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                     No. 14-90040                         November 28, 2014
                                  ___________________
                                                                             Lyle W. Cayce
                                                                                  Clerk
WASTE MANAGEMENT OF LOUISIANA, L.L.C.,

              Plaintiff - Respondent

v.

JEFFERSON PARISH, through the Jefferson Parish Council,

              Defendant - Petitioner

                               ________________________

                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6764
                             ________________________

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*
       The district court denied a motion to dismiss based on forum non
conveniens, and we must decide if substantial grounds for difference of opinion
exist so as to permit interlocutory review.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      I.
      Waste Management filed this breach of contract suit against Jefferson
Parish in the Eastern District of Louisiana.        The contract contains the
following clause:

            Jurisdiction: This Agreement and the performance
            thereof shall be governed, interpreted, construed and
            regulated by the laws of the State of Louisiana and the
            parties hereto submit to the jurisdiction of the 24th
            Judicial District Court for the Parish of Jefferson,
            State of Louisiana. The parties hereby waiving any
            and all plea[s] of lack of jurisdiction or improper
            venue.


Jefferson Parish filed a motion to dismiss on the grounds of forum non
conveniens, arguing that the suit had to be filed in state court based on the
Supreme Court’s holding in Atlantic Marine Construction Co. that forum
selection clauses should be enforced absent exceptional circumstances. See 134
S. Ct. 568, 581 (2013). The district denied Jefferson Parish’s motion, reasoning
that Atlantic Marine does not apply to permissive forum selection clauses like
this one. It then authorized this interlocutory appeal. In its motion seeking
permission to file an interlocutory appeal, Jefferson Parish agrees to assume
that the clause at issue is permissive rather than mandatory.          The legal
question it wants this court to decide is whether Atlantic Marine applies to
permissive forum selection clauses.
                                      II.
      Interlocutory appeals are reserved for exceptional cases that meet three
statutory requirements. See 28 U.S.C. § 1292(b). To grant an interlocutory
appeal, the district court must certify that the issue involves “[1] a controlling
question of law [2] as to which there is substantial ground for difference of
opinion and [3] that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” Id.       After the district
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authorizes an appeal, these criteria help determine whether the court of
appeals should exercise its discretion and agree to hear the appeal. See
Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 399 (5th Cir.
2010) (en banc); 16 Charles Alan Wright & Arthur R. Miller, FED. PRAC. &
PROC. JURIS. § 3930 (3d ed.) (describing the discretion as a “second-stage
screening function”). Our concern here is with whether the issue involves a
substantial ground for difference of opinion.

      We have long recognized a distinction between mandatory and
permissive forum selection clauses. See City of New Orleans v. Mun. Admin.
Servs., Inc., 376 F.3d 501, 504–05 (5th Cir. 2004); Caldas & Sons, Inc. v.
Willingham, 17 F.3d 123, 127–28 (5th Cir. 1994); Keaty v. Freeport Indonesia,
503 F.2d 955, 956 (5th Cir. 1974).           Unlike their mandatory counterparts,
permissive forum selection clauses allow but do not require litigation in a
designated forum. As such, we have never required district courts to transfer
or dismiss cases involving clauses that are permissive. See, e.g., id.

      Does Atlantic Marine undo that distinction? 1 Atlantic Marine involved
a mandatory clause and its analysis seems premised on the existence of that
type of clause.     See 134 S. Ct. at 581 n.5 (“Our analysis presupposes a
contractually valid forum-selection clause.”).             It certainly said nothing
disagreeing with the mandatory/permissive distinction. The vast majority of
district courts deciding this issue have rejected Atlantic Marine’s application
to permissive forum selection clauses. See, e.g., Fin. Cas. & Sur., Inc. v. Parker,
2014 WL 2515136, at *3 (S.D. Tex. June 4, 2014) (citing cases). So has the only
court of appeals that has considered the issue. GDG Acquisitions, LLC v. Gov’t
of Belize, 749 F.3d 1024, 1029–30 (11th Cir. 2014) (remanding case for


      1  Atlantic Marine involved a motion to transfer venue based on a mandatory forum
selection clause that designated a different federal forum. The Supreme Court added,
however, that the same framework it set forth applies to a forum non conveniens motion
seeking dismissal based on a forum selection clause requiring a state or foreign forum. See
134 S. Ct. at 580–82.
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determination whether the contract “contains a mandatory forum-selection
clause” that would implicate Atlantic Marine). Jefferson Parish relies on two
district court cases applying Atlantic Marine to permissive clauses, but those
cases do not analyze the issue in depth or acknowledge contrary authority. See
Compass Bank v. Palmer, 2014 WL 355986, at *5 (W.D. Tex. Jan. 30, 2014);
United Am. Healthcare Corp. v. Backs, 997 F. Supp. 2d 741, 750 (E.D. Mich.
2014). Given the absence of any language from the Supreme Court rejecting
our longstanding approach on this issue and the heavily lopsided nature of the
post-Atlantic Marine split in the district courts, Jefferson Parish has not
persuaded us that we should exercise our discretion to hear this interlocutory
appeal.

      IT IS ORDERED that leave to appeal from the interlocutory order of the
United States District Court of the Eastern District of Louisiana, New Orleans,
entered on September 4, 2014, is DENIED.
