Opinion
Civil Action No: 04-962, Section: "J"(2).
July 22, 2004
ORDER AND REASONS
Before the Court is defendant BellSouth Advertising Publishing Company's ("BAPCO's") Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Rec. Doc. 6. Plaintiff opposes the motion. The motion was set for hearing on briefs without oral argument on June 23, 2004. The Court granted plaintiff an extension until June 30, 2004 to file an opposition; additional briefing was completed on July 15, 2004, after which the Court took the matter under advisement. Having considered the record, the memoranda of counsel, and applicable law, the Court finds that this matter should be transferred to the United States District Court for the Northern District of Georgia for the reasons which follow.
Background
In early 2003, plaintiff, Jonathan Mouch, entered into two contracts with defendant BAPCO to advertise in the 2003 Real Yellow Pages. Plaintiff alleges that although he cancelled the advertising agreements, BAPCO did not withdraw the advertising and thus he was wrongfully charged for the advertisements. Plaintiff also alleges that after cancelling the agreements, BAPCO sold or gave away artwork that he had submitted in connection with the advertisements. On February 2, 2004, plaintiff filed suit in Louisiana state court claiming he was wrongly billed for defendant's advertising services. On April 5, 2004, defendants removed the case to federal court. BAPCO also filed a counterclaim for breach of contract for unpaid advertising charges, plus interest, costs and attorney fees.In the present motion, BAPCO seeks to dismiss this action for improper venue because the forum selection clause contained in Paragraph 14 of the contract requires plaintiff to litigate any claims arising from the contract in federal court in the Northern District of Georgia or in the Superior Court of Delkab County, Georgia. BAPCO also claims that plaintiff never sought or obtained a waiver of the forum selection clause before filing his petition. Plaintiff opposes BAPCO's motion, claiming that the forum selection clause is "unreasonable, unfair, and unjust and places an onerous burden [on plaintiff] which will require him to not pursue this action given the inconvenience and costs associated with proceeding in Georgia." Opp., Rec. Doc. 8, 2. He also claims that the clause was overreaching, because it was located on the reverse side of BAPCO's contract in a small font; plaintiff also emphasizes the parties' disproportionate bargaining power and levels of sophistication. Id. at 4.
Specifically, the clause states: "Any litigation arising hereunder shall be filed only in the Federal District Court for the Northern District of Georgia or the Superior Court of DeKalb County, Georgia, and you hereby consent to the jurisdiction of such courts."
Discussion
Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907 (1972). "Unreasonableness potentially exists 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 quotations omitted), cert. denied, 523 U.S. 1072, 118 S.Ct. 1513 (1998). The Bremen rule, first announced in the admiralty context, has been explicitly held to apply to motions to dismiss based on a forum selection clause filed in cases before federal courts sitting in diversity. International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir. 1996).
Plaintiff's arguments for the invalidity of the forum clause in this case rest on the first two prongs of the Bremen test, since he claims the clause was the product of overreaching and the expense required to litigate in Georgia will deprive him of his day in court.
With respect to the claim of overreaching, plaintiff appears to be arguing that either he didn't or couldn't read the contract that he signed, because he did not have a lawyer to help him "decipher" it. The contract in question is a two-page document. The forum selection clause is in the same font size as the rest of the contract, and is included in a section labeled "Miscellaneous" which includes various other litigation-related provisions such choice of law. The signature line lies immediately below a clause which reads: "Applicant acknowledges having read, understood and agreed to the Terms Conditions on the reverse." On these facts, the Court simply does not find that plaintiff's consent to the contract was defective because he was duped into signing the contract as a result of not having needed legal assistance. There is nothing in the forum selection clause (set forth fully above at footnote one), that an individual with a high school education could not have read and understood. Furthermore, plaintiff's own failure to read the contract, if that's what occurred, cannot excuse him from its terms.Rodriguez v. Class Travel Worldwide, L.L.C., 2000 WL 222165; *4 (E.D. La. Feb. 18, 2000).
Moreover, the Court notes that in another case testing the validity of the same clause in an identical BAPCO contract, Judge Engelhardt explicitly found the clause was not invalid due to the particular form or manner in which the contract was agreed to by the plaintiff in his case. Worker's Compensation Legal Clinic of La. v. Bellsouth Telecommunications, Inc., 2003 WL 21750628, *3 (E.D. La. July 28, 2003). While the form and manner in which theWorker's Comp. Legal Clinic contract was agreed to is certainly unique to that case, the analysis is equally applicable here. In that case, Judge Engelhardt noted that adhesionary contracts "`are not per se unenforceable, but rather lend themselves to an inquiry as to whether the weaker party consented to the fine print, and if so whether the adhesionary clause is unduly burdensome or extremely harsh.'" Id. quoting Andry v. New Orleans Saints, 820 So.2d 602, 603-04 (La.App. 5th Cir.),writ denied, 828 So.2d 1120 (La. 2002) (other citations omitted). In this case, regardless of plaintiff's claim that he did not consent to the fine print because (1) it was fine print; and (2) he was not assisted by counsel, the Court finds that clause is neither unduly burdensome nor extremely harsh. The clause requires litigation in Atlanta which is accessible by a short flight or a day's drive, and as noted by Judge Engelhardt in his case, most pretrial matters can be taken care of via mail, e-mail, or telephone.
With respect to plaintiff's argument that enforcement will mean that he is deprived of his day in court because of the grave inconvenience or unfairness of litigating in Georgia, the Court is likewise unpersuaded. In support of this argument, plaintiff has submitted his own affidavit which avers, in a conclusory fashion, that "should [plaintiff] be required to litigate in Georgia, he will be required to not pursue this matter given the economic hardship; and [t]hat his mother is gravely ill and he is her primary caretaker and the time demands of litigating in Georgia will impair his ability to provide her care." Affidavit attached to Opp., ¶¶ 89.
The same reasoning which has led the Court to conclude that the provision is not unduly harsh also leads the Court to find that the selected forum is not so unfair or inconvenient that it should preclude litigation, especially on the conclusory showing plaintiff has made on this point. As Judge Engelhardt noted, the litigants themselves can have an enormous impact on the time and resources required to prosecute a case, and "the parties can and should take advantage of measures that could reduce the costs associated with [Louisiana-based] witnesses, such as entering into stipulations and submitting deposition testimony in lieu of live testimony." 2003 WL 21750628, *5. Further, the Court cannot conceive of why the plaintiff's prosecution of this case in Atlanta as opposed to New Orleans would affect the care he provides to his mother. In either case, he will have to be away from her for limited periods for court dates; enforcement of the forum selection clause only additionally inconveniences him in that his time away will be extended by the amount of travel time required to get to Atlanta when necessary.
Accordingly, the Court finds that the forum selection clause in this case is enforceable. However, notwithstanding that fact, the Court finds that transfer to a venue provided for in the contract is more appropriate than dismissal. Therefore, IT IS ORDERED that BAPCO's Motion to Dismiss (Rec. Doc. 6) should be and is hereby DENIED; IT IS FURTHER ORDERED that this matter is hereby TRANSFERRED to the United States District Court for the Northern District of Georgia.