United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO TRANSFER
J. Dinsmore United States Magistrate Judge
matter is before the Court on Defendant's Motion to
Transfer Case Under 28 U.S.C. Section 1404(a) to the
United States District Court for the Northern District of
Georgia, Atlanta Division. [Dkt. 27]. For the
reasons set forth below, the Court DENIES
Defendant's Motion to Transfer.
Badger Daylighting Corp. (“Badger”) filed suit
against Defendant Gary Palmer for alleged violations of a
non-compete agreement and various tort and equitable
theories. [Dkt. 28 at 1]. Pursuant to
Defendant's employment with Badger, Defendant executed a
Confidentiality and Non-Competition Agreement (the
“Agreement”). [Dkt. 35 at 1]. The
Agreement includes a forum-selection clause stating,
“This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana and any
disputes arising hereunder shall be brought and heard in the
state or federal courts sitting in Marion County,
Indiana.” [Dkt. 35-1 at 4].
filed suit in the Marion Superior Court on May 24, 2019.
[Dkt. 1 at 1]. Defendant filed a Notice of
Removal, removing the case from the Marion Superior
Court to this Court on May 28, 2019. [Dkt. 1 at 1].
Defendant now requests this Court transfer venue to the
Northern District of Georgia. [SeeDkt. 28 at 1].
provided by 28 U.S.C. § 1404(a), “[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.” In determining the motion, the Court
balances three factors: (1) the convenience of the parties;
(2) the convenience of the witnesses; and (3) the interests
of justice. Yummy Yogurt Indy, LLC et al. Orange Leaf
Licensing, et al., 2015 WL 1243732, 2-3 (S.D. Ind.
2015). “The calculus changes, however, when a party
seeks to invoke or oppose a valid forum-selection
clause.” Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Court for the W. Dist. of Tex., et al, 571 U.S.
49, 63 (2013). “When 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.
“As a consequence, a district court may consider
arguments about public-interest factors only.”
asks the Court to grant transfer of this case to the Northern
District of Georgia. [Dkt. 28 at 1]. Defendant
argues that the Supreme Court precedent set forth in
Atlantic Marine does not apply to this transfer
motion. [Dkt. 41 at 1]. Defendant reaches this
conclusion by claiming Atlantic Marine “does
not apply to permissive forum selection clauses” and
that the forum selection clause at issue “is
permissive.” [Dkt. 41 at 1-3]. Defendant then
makes the argument that, even if Atlantic Marine
were to apply, the applicable factors weigh in favor of
transfer. [Dkt. 41 at 6]. These factors include the
Southern District of Indiana's docket congestion, the
“local interest” favoring transfer, and the
“forum that is at home with the law” would favor
transfer. [Dkt. 41 at 7-9].
Atlantic Marine Applies to the Transfer
Defendant makes the argument that Atlantic Marine
does not apply to the forum-selection clause at issue.
[Dkt. 41 at 1]. In Atlantic Marine, a
Virginia and Texas corporation entered into an agreement
which included a forum-selection clause indicating all
disputes between the parties be litigated in Virginia.
Atl. Marine, 571 U.S. at 53-54. However, when a
dispute arose, the Texas corporation filed suit in Texas, not
in the designated forum. The Supreme Court held that when
parties enter into a valid forum-selection clause the
appropriate venue is the agreed upon forum, unless some
overwhelming public-interest exists dictating against that
forum. Id. at 66.
cites cases which interpret Atlantic Marine to be an
applicable framework only with regard to mandatory, but not
permissive, forum-selection clauses. [Dkt. 41 at 2];
see GDG Acquisitions, LLC v. Got't of
Belize, 749 F.3d 1024, 1029-30 (11th Cir. 2014).
Although Atlantic Marine does not expressly make
this distinction, the language “when a plaintiff agrees
by contract to bring suit only in a specified
forum” has led courts to interpret Atlantic
Marine to apply only to mandatory forum-selection
clauses. Atl. Marine, 571 U.S. at 63 (emphasis
contrary to Defendant's assertions, the Agreement between
Defendant and Badger designates a mandatory forum for which
disputes shall be litigated. The language of the agreement is
7. Governing Law and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Indiana and any disputesarising
hereunder shall be brought and heard in the
state or ...