Noble House v. Certain Underwriters ( 2023 )

Case: 22-20281 Document: 00516733576 Page: 1 Date Filed: 05/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
May 1, 2023
No. 22-20281
____________ Lyle W. Cayce
Clerk
Noble House, L.L.C.,
Plaintiff—Appellant,
versus
Certain Underwriters at Lloyd’s, London, Subscribing
to Policy MS-S 5722 (Marine Package),
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-3585
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Plaintiff-appellant Noble House, L.L.C. (“Noble House”) appeals a
judgment of dismissal, without prejudice, based on forum non conveniens,
granted in favor of defendant-appellee Certain Underwriters at Lloyd’s,
London (“Underwriters”). The district court ruled that the parties’
insurance policy contained an enforceable forum-selection clause requiring
litigation in the courts of England and Wales and that a return-jurisdiction
clause was not required. We AFFIRM.
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I. Factual and Procedural Background
On August 20, 2018, Noble House’s yacht lost its port-side rudder
while entering a channel in the Bahamas. The following day, Noble House
advised Underwriters, its insurer, of the casualty, which was allegedly
covered by its marine-insurance policy. Noble House purchased the policy
from Underwriters by way of a Texas-based insurance broker on February 1,
2018. The policy contained a forum-selection clause that selected the courts
of England and Wales. Attached to the policy was a cover note with its own
forum-selection clause that selected any court of competent jurisdiction
within the United States. Allegedly, the cover note was not prepared by
Underwriters, but by Noble House’s own insurance broker.1 Approximately
two months after the casualty, on October 19, 2018, Underwriters issued a
letter advising that coverage “may not exist.” Underwriters has not yet
denied coverage.
Noble House sued to recover its damages, first in the United States
District Court for the Southern District of Florida on October 12, 2020.
Months later, on March 2, 2021, that district court granted Underwriters’
motion to dismiss for lack of personal jurisdiction and dismissed the case
without prejudice.
Then, Noble House filed the instant suit in the United States District
Court for the Southern District of Texas on November 1, 2021. Underwriters
moved to dismiss on forum non conveniens grounds. On March 23, 2022, after
hearing argument, the district court granted Underwriters’ motion and
dismissed all claims without prejudice. Noble House filed a motion for
reconsideration, which the court denied. This appeal followed.
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1
At oral argument, Underwriters discussed the preparation of the cover note,
which, it conceded, was a fact not in the record.
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II. Standard of Review
Underwriters filed its motion to dismiss on forum non conveniens
grounds, requesting that the court enforce the mandatory forum-selection
clause selecting the courts of England and Wales and dismiss the action. We
apply “a mixed standard of review for post-Atlantic Marine [forum non
conveniens] rulings involving [forum-selection clauses].” Weber v. PACT
XPP Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016). First, we review the
district court’s interpretation of the forum-selection clause and the court’s
assessment of that clause’s enforceability de novo. Id. Second, we review the
district court’s balancing of the Atlantic Marine private- and public-interest
factors for abuse of discretion. Id.III. The Applicable Framework
“[T]he appropriate way to enforce a forum-selection clause pointing
to a … foreign forum is through the doctrine of forum non conveniens,” Atl.
Marine, 571 U.S. at 60, “under which a court may decline to exercise its
jurisdiction and dismiss a case that is otherwise properly before it so that the
case can be adjudicated in another forum.” PCL Civ. Constructors, Inc. v.
Arch Ins. Co., 979 F.3d 1070, 1073 (5th Cir. 2020). The parties dispute which
forum non conveniens framework applies. “Usually, a court applying th[e]
doctrine must determine whether there is an adequate alternative forum and,
if so, decide which forum is best-suited to the litigation by considering a
variety of private- and public-interest factors and giving deference to the
plaintiff’s choice of forum.” Barnett v. DynCorp Int’l, L.L.C., 831 F.3d 296,
300 (5th Cir. 2016) (citing DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d
785, 794-95 (5th Cir. 2007)). So, to obtain a forum non conveniens dismissal
under this framework, “a party must demonstrate (1) the existence of an
available and adequate alternative forum and (2) that the balance of relevant
private and public interest factors favor dismissal.” Vasquez v.
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Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003) (citing Alpine
View Co. v. Atlas Copco AB, 205 F.3d 208, 221-22 (5th Cir. 2000)). It is this
“usual” analysis that Noble House says controls.
But Noble House is wrong. Its reliance on Vasquez is misplaced.
Vasquez and its progeny address the forum non conveniens inquiry where no
forum-selection clause exists. As Underwriters correctly explains, the
presence of a mandatory, enforceable forum-selection clause simplifies the
“usual” analysis in two ways. Barnett, 831 F.3d at 300. “First, the plaintiff’s
choice of forum merits no weight” because, by contracting for a specific
forum, “the plaintiff has effectively exercised its ‘venue privilege’ before a
dispute arises.” Atl. Marine, 571 U.S. at 63. Second, the private-interest
factors “weigh entirely in favor of the preselected forum”; so, the “district
court may consider arguments about public-interest factors only.” Id. at 64.
“Hence, a valid forum-selection clause controls the forum non conveniens
inquiry ‘in all but the most unusual cases.’” Barnett, 831 F.3d at 300 (quoting
Atl. Marine, 571 U.S. at 66) (alteration omitted). “This harmonizes with the
[Supreme] Court’s guidance that contractually selected forums often ‘figure
centrally in the parties’ negotiations’ and become part of those parties’
‘settled expectations’ – so if a plaintiff disregards such a contractual
commitment, ‘dismissal works no injustice.’” Id. (quoting Atl. Marine, 571
U.S. at 66 & n.8) (alterations omitted).
We apply a “strong presumption” in favor of enforcing mandatory
forum-selection clauses. Weber, 811 F.3d at 773 (citing Haynsworth, 121 F.3d
at 962-63). “The presumption of enforceability may be overcome, however,
by a clear showing that the clause is ‘unreasonable’ under the
circumstances.” Weber, 811 F.3d at 773 (quoting Haynsworth, 121 F.3d at
963). We’ve stated:
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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, 121 F.3d at 963 (citing Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 595 (1991), and M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
12-13, 15, 18 (1972)) (internal quotation marks omitted). “The party resisting
enforcement on these grounds bears a ‘heavy burden of proof.’” Id. (quoting
Bremen, 407 U.S. at 17). Federal law determines the clause’s enforceability.
See id. at 962. If the forum-selection clause is both mandatory and
enforceable, the court must decide whether, under Atlantic Marine’s
balancing test, the case “is one of the rare cases in which the public-interest
[forum non conveniens] factors favor keeping a case despite the existence of a
valid and enforceable [forum-selection clause].” Weber, 811 F.3d at 775-76.
We review the “unreasonableness” inquiry de novo and the Atlantic Marine
inquiry for abuse of discretion. Weber, 811 F.3d at 776.
Here, although there are arguably two forum-selection clauses at play,
one foreign and one domestic,2 the district court concluded that the forum-
_____________________
2
Noble House’s insurance policy details that: “This Insurance shall be governed
by and construed in accordance with the law of England and Wales and each party agrees
to submit to the exclusive jurisdiction of the courts of England and Wales.” The attached
cover note provides: “It is agreed that in the event of the failure of the Underwriters hereon
to pay any amount claimed to be due hereunder, the Underwriters hereon, at the request
of the Assured (or Reinsured), will submit to the jurisdiction of a Court of competent
jurisdiction within the United States.” Importantly, the cover note states that it “is
intended for use as evidence that insurance described herein has been effected against
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selection clause selecting the courts of England and Wales controls. Noble
House does not dispute this conclusion in its opening brief.3 Nor does Noble
House dispute that the foreign forum-selection clause is mandatory. Only
the foreign forum-selection clause’s enforceability is contested, which is
addressed under the “unreasonable under the circumstances” framework –
not the usual “available and adequate” framework. 4
IV. The mandatory clause is not “unreasonable under the
circumstances,” and is therefore enforceable.
To Noble House, the courts of England and Wales do not provide
“available and adequate” fora because it fears its claims would be time-
barred if litigated there.5 So, says Noble House, the foreign forum-selection
clause is “unreasonable under the circumstances” because it would be
“‘deprived of [its] day in court’ due to a shortened statute of limitation[s] in
England that would be invalid under Texas law and because enforcement of
the forum selection clause would violate the public policy of Texas.” Under
_____________________
which a policy(ies) will be issued and that in the event of any inconsistency therewith the terms
and conditions and provisions of the policy(ies) prevail.”
3
In its reply brief, Noble House raises, for the first time, that it disputes that the
foreign forum-selection clause controls. But “[a]rguments raised for the first time in a
reply brief are waived.” Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir.
2015) (citingUnida v. Levi Strauss & Co., 986 F.2d 970, 976 n. 4 (5th Cir. 1993)).
4
Even if this Court were to rely on the “available and adequate” standard, as Noble
House suggests, Noble House’s argument that the courts of England and Wales are not
“available and adequate” fails. By contracting for those courts’ exclusive jurisdiction, it
necessarily agreed that such courts are available and adequate. See Atl. Marine, 571 U.S. at
63 (noting that a forum-selection clause “represents the parties’ agreement as to the most
proper forum”) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)).
5
That the statute of limitations has run is a non-jurisdictional affirmative defense,
see Flagg v. Stryker Corp., 819 F.3d 132, 143 (5th Cir. 2016) (Haynes, J., concurring in part),
not a jurisdictional pre-requisite. Accordingly, we need not resolve whether the claims are
time-barred at this juncture.
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de novo review, Noble House does not carry its “heavy burden of proof” to
show that the clause selecting the courts of England and Wales is
unreasonable under the circumstances.
A. The law does not reward a plaintiff for violating a forum-
selection clause.
Noble House’s fear that its claims would be time-barred under the
foreign fora’s statutes of limitations is not novel. Both the Supreme Court
and this Court have acknowledged the risk of time-barred claims in the
forum-selection-clause context. Unfortunately for Noble House, controlling
caselaw affords it no sympathy.
It is no secret that dismissal under forum non conveniens “makes it
possible for plaintiffs to lose out completely[] through the running of the
statute of limitations in the forum finally deemed appropriate.” Atl. Marine,
571 U.S. at 66 n.8 (alteration omitted). But dismissal of a suit “when the
plaintiff has violated a contractual obligation by filing suit in a forum other
than the one specified in a valid forum-selection clause … work[s] no
injustice on the plaintiff.” Id. That is why we have said: “[T]hat an action
may be time-barred in the chosen forum does not make a forum-selection
clause unreasonable.” Barnett, 831 F.3d at 309 n.14.
We have already considered a statute-of-limitations concern in the
forum-selection-clause context. Id. In Barnett, we said that such
consideration “would create a large loophole for the party seeking to avoid
enforcement of the forum selection clause.” Id. (quoting Trafigura Beheer
B.V. v. M/T PROBO ELK, 266 F. App’x. 309, 312 n.4 (5th Cir. 2007) (per
curiam) (unpublished)). That is because the plaintiff “could simply
postpone its cause of action until the statute of limitations has run in the
chosen forum and then file its action in a more convenient forum.” Id.(quoting Trafigura, 266 F. App’x at 312 n.4). The law cannot promote such
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gamesmanship. So, “absent some compelling and countervailing reason,”
the arms-length agreement choosing that forum-selection clause “should be
honored by the parties and enforced by the courts.” Bremen, 407 U.S. at 12;
see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring) (“[E]nforcement of valid forum-selection clauses, bargained for
by the parties, protects their legitimate expectations and furthers vital
interests of the justice system.”). Noble House offers no compelling reason
justifying its filing in Texas or why its action could not be filed timely in the
foreign fora. Its violation of the clause should not be rewarded. It occasioned
its own predicament by failing to timely file its claim in the contractually-
specified forum. See Trafigura, 266 F. App’x at 312. And it will be held to its
bargain.
B. The “unreasonableness” factors weigh in favor of
enforcement.
Even if this Court’s jurisprudence were sympathetic to Noble
House’s position, Noble House fails to show that the operative forum-
selection clause is unreasonable under the circumstances and, consequently,
unenforceable. Noble House’s “showing” of unreasonableness is a simple
insertion of a two-columned table submitted to the district court. One
column lists the four factors pertinent to the unreasonableness analysis. See
Haynsworth, 121 F.3d at 963. The other column lists alleged evidence in
support of each factor. Instead of addressing the evidence in support of
unreasonableness, Noble House argues that the district court’s alleged
failure to articulate its rationale for dismissal on the record results in an abuse
of discretion. Noble House confuses the applicable standard of review at this
juncture. We review de novo the district court’s conclusion that the forum-
selection clause was enforceable. PCL, 979 F.3d at 1073. And the record
does not support that the operative forum-selection clause was unreasonable
under the circumstances.
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First, there is no evidence that the forum-selection clause was the
product of fraud or overreaching. Noble House contends the following is
evidence of fraud or overreaching: “i. placement of the forum selection
clause deep within a voluminous document, ii. the lack of noticeable headers
calling attention to the clause, iii. the presence of a forum selection clause
selecting United States, [and] iv. [n]o endorsements or forms that supersede
the forum selection clause in the Cover Note.” This “evidence” falls short.
To its first two points, the document is approximately 50 pages, with plenty
of line and page breaks, and Noble House is presumed to have read the
contract to which it agreed. To its third point, there is an express clause
stating that the provisions in the policy supersede that in the cover note. And
finally, to its fourth point, at the district court’s hearing on Underwriters’
motion to dismiss, Noble House admitted that it does not argue that the
foreign forum-selection clause was fraudulently inserted.
Second, there is no evidence that Noble House will for all practical
purposes be deprived of its day in court because of the grave inconvenience
or unfairness of the selected forum. Noble House relies on its oft-repeated
refrain that it is deprived of a remedy because its claims are time-barred due
to the shorter foreign statutes of limitations. But “[w]hen parties agree to a
forum-selection clause, they waive the right to challenge the preselected
forum as inconvenient or less convenient for themselves or their witnesses,
or for their pursuit of the litigation.” Atl. Marine, 571 U.S. at 64. Any grave
inconvenience or unfairness of the selected forum Noble House “would
suffer by being forced to litigate in the contractual forum as it agreed to do
was clearly foreseeable at the time of contracting.” Bremen, 407 U.S. at 17-
18. Because the applicable foreign statutes of limitations were certainly
foreseeable at the time the parties executed the policy, their enforcement is
not unfair.
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Moreover, “[a] chosen forum is not fundamentally unfair merely
because its law is less generous than, or because the result might differ from
that under, the forum state’s law.” Barnett, 831 F.3d at 308 n.14 (citing
Haynsworth, 121 F.3d at 969). That a shorter statute of limitations applies
abroad does not make the foreign fora unfair. To be sure, “American courts
repeatedly have recognized [English courts] to be fair and impartial.”
Haynsworth, 121 F.3d at 967. Noble House’s deprivation of a day in court is
the result of a self-inflicted problem (a failure to timely file where no evidence
suggests it was prevented from timely filing), not the result of a grave
inconvenience or unfairness due to the fora. Aside from the running of the
statute of limitations, Noble House points to no other inconvenience or
unfairness.
Third, there is no evidence that the fundamental unfairness of the
chosen law will deprive the plaintiff of a remedy. Again, Noble House argues
that it is deprived of a remedy “by virtue of a shortened statute of limitations
permissible under English law.” Noble House does not argue that there are
no causes of action available under English law that would allow it to seek the
same relief requested here. See Weber, 811 F.3d at 774. Rather, as Noble
House seemingly concedes, it is its procedural error, not the underlying
substantive law, that may deny it a remedy. Courts enforce a forum-selection
clause unless the contracted forum accords the plaintiff no remedies
whatsoever. Id. at 774 & n.24; see also Barnett, 831 F.3d at 308 n.14. That’s
because “[i]t is the availability of a remedy that matters, not predictions of
the likelihood of a win on the merits.” Weber, 811 F.3d at 774 (emphasis in
original). Noble House’s failure to point to a substantive law that bars its
claim for relief is fatal.
Fourth, there is no evidence that enforcement of the forum-selection
clause would contravene a strong public policy of the forum state. Noble
House states that “Texas has a strong public policy of regulating insurance”
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because: (1) “the public policy of the State of Texas is reflected in its
statutes”; (2) there is a statute providing that insurance contracts sold to
citizens or inhabitants of Texas are governed by Texas law, Tex. Ins.
Code § 21.42; (3) Texas residents must consent to the transfer of a suit
involving an insurance contract, Tex. Ins. Code § 982.305; (4) Texas may
regulate insurance; and (5) Texas has a strong interest in protecting its
citizens against “overbearing tactics of insurance underwriters.” The
district court found this unconvincing. So do we.
Even assuming it were true that Texas has a strong public policy of
regulating insurance, this Court has already explained that the Supreme
Court, “rejecting as a ‘parochial concept’ the idea that ‘notwithstanding
solemn contracts all disputes must be resolved under our laws and in our
courts,’ held that federal courts presumptively must enforce forum selection
clauses in international [contracts].” Haynsworth, 121 F.3d at 962 (quoting
Bremen, 407 U.S. at 9) (alteration in original omitted). And public policy
“weighs strongly in favor” of this presumption. Id. Tellingly, Noble House
fails to cite a case where enforcement of a forum-selection clause contravened
state public policy. Cf. id. (“Since The Bremen, the [Supreme] Court has
consistently followed this rule [that federal courts presumptively must
enforce forum-selection clauses] and, in fact, has enforced every forum
selection clause in an international contract that has come before it.”). And
when asked at oral argument if such a case existed, Noble House conceded
that it was not aware of such a case. As the record stands, there is insufficient
evidence that enforcement of the foreign forum-selection clause would
contravene Texas public policy.
Noble House bears the heavy burden of establishing that a forum non
conveniens dismissal is unwarranted. Weber, 811 F.3d at 767. It has not
overcome our strong presumption in favor of enforcing forum-selection
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clauses. Id. at 775. The operative forum-selection clause, then, is
enforceable. The district court did not err.
C. Noble House forfeited any argument regarding the Atlantic
Marine factors.
Once we find that the forum-selection clause is enforceable, as here,
we then “review for abuse of discretion the district court’s use of Atlantic
Marine’s balancing test” of public-interest factors. Weber, 811 F.3d at 766.
Noble House does not argue that the district court misapplied the
public-interest factors. In fact, absent from Noble House’s briefing is any
reference to the Atlantic Marine public-interest factors. Its failure to address
the public-interest factors results in forfeiture of the argument on appeal. See
PCL, 979 F.3d at 1074 (citing United States v. Young, 872 F.3d 742, 747 (5th
Cir. 2017)).
V. A return-jurisdiction clause or total waiver of any statute-of-
limitations defenses is not necessary.
Finding that the foreign forum-selection clause was enforceable, the
district court dismissed the action without mention of a return-jurisdiction
clause. Prior to dismissal, the court prompted Underwriters’ express
commitment that it would “not count the pendency of this action against any
statute of limitation argument that’s made in the future.” Noble House
contends that a “return-jurisdiction clause” was mandatory and that “a total
waiver of any statute of limitations defenses [or laches defenses] is … a valid
prerequisite for transfer to a foreign jurisdiction pursuant to forum non
conveniens.” Noble House’s position lacks merit.
“A return jurisdiction clause remedies th[e] concern [that the
identified forum will remain available or that defendants will submit to its
jurisdiction] by permitting parties to return to the dismissing court should
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the lawsuit become impossible in the foreign forum.” Vasquez, 325 F.3d at
675. “The ‘failure to include a return jurisdiction clause in an f.n.c. [i.e.,
forum non conveniens] dismissal constitutes a per se abuse of discretion.’”
Vasquez, 325 F.3d at 675 (quoting Robinson v. TCI/US West Communications,
Inc., 117 F.3d 900, 907-08 (5th Cir. 1997)). “This is because, as [this] [C]ourt
has repeatedly made clear, ‘courts must take measures, as part of their
dismissals in [forum non conveniens] cases, to ensure that defendants will not
attempt to evade the jurisdiction of the foreign courts.’” Rajet Aeroservicios
S.A. de C.V. v. Castillo Cervantes, 801 F. App’x 239, 244 (5th Cir. 2020)
(unpublished) (per curiam) (quoting Baris v. Sulpicio Lines, Inc., 932 F.2d
1540, 1551 (5th Cir. 1991)). “Such measures often include agreements
between the parties to litigate in another forum, to submit to service of
process in that jurisdiction, to waive the assertion of any limitations defenses,
to agree to discovery, and to agree to the enforceability of the foreign
judgment.” Baris, 932 F.2d at 1551 (citations omitted). “A return-
jurisdiction clause assists in preventing defendants from circumventing these
measures and ensures plaintiffs have the opportunity to proceed with the
action in one of the forums.” Rajet Aeroservicios, 801 F. App’x at 244.
The existence of a mandatory, enforceable forum-selection clause
swallows the purpose of a return-jurisdiction clause whole. See Baris, 932
F.2d at 1551. As noted, an agreement is one of the express “measures” to
ensure that defendants will not attempt to evade the jurisdiction of the
foreign courts. See Baris, 932 F.2d at 1551. By agreement, Noble House and
Underwriters are contractually bound to litigate their dispute in the courts of
England and Wales. Accordingly, there is no concern that Underwriters will
“attempt to evade jurisdiction of the foreign courts” or flout the litigation
procedure and outcome. The clause ensures that Noble House will have the
opportunity to proceed with the action in the foreign fora. See Rajet
Aeroservicios, 801 F. App’x at 244. Moreover, should Underwriters evade the
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jurisdiction of the foreign courts, Noble House has a remedy in a breach-of-
contract action, a protection which does not exist in the forum non conveniens
context where there is no forum-selection clause. The parties’ agreement to
proceed with the action in the selected fora obviates the need for a return-
jurisdiction clause. See Baris, 932 F.2d at 1551
A “total waiver of any statute of limitations defense” or laches
defenses is similarly unnecessary. First, while such a waiver is one of the
many “measures” provided to “ensure” that defendants will not evade the
jurisdiction of foreign courts, none of those measures is mandatory. See id.(listing examples of protective measures that a court may often – but not
“must” – utilize). Again, the primary concern that a defendant will evade
jurisdiction is not present where the parties willingly submitted to foreign
fora by agreement. So, waiver as a protective measure is redundant,
gratuitous, and serves no purpose. Although not required, the district court
confirmed that Underwriters’ statute-of-limitations defense did not
encompass the time period including “the duration of the pendency of this
action.” This exceeds what was expected of the court to ensure
Underwriters would not “evade” jurisdiction. Accordingly, the district
court did not err.
VI. Conclusion
For the foregoing reasons, the district court did not err when it: (1)
concluded that the foreign forum-selection clause is enforceable; or (2) failed
to include a return-jurisdiction clause and total waiver of any statute-of-
limitations defenses. We AFFIRM the district court’s judgment of
dismissal.
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