USA Truck, Inc. v. Jackson Elite Trucking, LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE WREX GROUP, LLC, d/b/a Chuck’s )
Wrecker Service, )
)
Plaintiff, )
)
v. ) Case No. 4:23CV649 HEA
)
USAT LOGISTICS, a division of USA TRUCK, )
INC., JACKSON ELITE TRUCKING, LLC, and )
WALMART, INC., )
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Jackson Elite Trucking, LLC’s
Motion to Dismiss and/or Motion to Transfer, [Doc. No. 45]. Defendant USA
Truck, Inc. opposes the motion. Jackson has filed a Reply to this Response. The
Court finds the matter ripe for consideration.
Facts and Background1
Plaintiff’s Second Amended Complaint alleges the following:
On January 19, 2020, Defendant USAT Logistics brokered a load of
1 The recitation of facts is set forth for the purposes of this motion only and in no way relieves the parties of the
necessary proof of the facts herein.
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charcoal from a Royal Oak production facility in Salem, Missouri for transport to a
Wal-Mart facility in Alabama, store 6006. USAT Logistics brokered or
subcontracted with Jackson Elite Trucking, LLC to transport the charcoal load.
Even though the cargo was loaded on the Jackson Elite Trucking trailer,
Jackson Elite Trucking was not the owner of the cargo. Royal Oak Enterprises has
advised Plaintiff that Walmart was the owner of the cargo claiming Walmart
purchased it from Royal Oak prior to the incident. By brokering the charcoal load,
Defendant USA Truck was acting as an agent for the charcoal’s owner and
assumed responsibility for completing the cargo transportation, which did not
occur.
On January 20, 2020, a Jackson Elite Trucking trailer was loaded at
Royal Oak’s Salem, Missouri production facility. Even though USAT brokered the
load to Jackson Elite, pursuant to its contract with Walmart, it remained
responsible for the delivery of the cargo and responsibility for all damages and
losses related to the movement of the cargo.
Shortly after transport began, an employee or agent of Jackson Elite lost
control of the tractor trailer on Highway 8 in Crawford County, Missouri resulting
in significant damage/loss of the tractor and trailer. At the time of the collision the
tractor trailer was being operated by an employee or agent of Jackson Elite in the
course and scope of employment for Jackson Elite.
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The Jackson Elite tractor and its trailer came to rest on their sides and
completely blocked traffic. The Missouri State Highway Patrol contacted Plaintiff
and authorized Plaintiff to clear the wreckage so the highway could be reopened. In
order to right the tractor it had to be separated from the trailer and a specialized
tow vehicle called a “rotator” was used to hoist it back onto all four wheels.
In order to right the trailer, which had suffered significant structural damage, the
contents of the trailer, 37,138 pounds of bagged charcoal, had to be manually
transloaded onto a trailer Plaintiff rented for the purpose of clearing the wreckage.
After the cargo was manually transloaded onto a waiting trailer, it was shrink
wrapped to protect it during transport. After the cargo was transloaded the “rotator”
was again used to pick up the trailer, orient it and place it on a “dolly” for moving
on public highways. The “dolly” was used because the structure of the trailer had
been compromised to the point that it could not be safely towed in an ordinary
fashion.
In order to remove the wreckage, Plaintiff had to employ additional laborers.
Plaintiff had to pay for a “lane drop” which is a permit to temporarily close part of
the highway.
Plaintiff offloaded the cargo inside its short-term storage facility in Rolla,
Missouri which is in Phelps County. It alerted Jackson Elite Trucking, LLC and its
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insurer as to where the cargo was located, that it was in good and usable condition,
and that a daily storage charge would be assessed.
Pursuant to its contract with Walmart, USA Truck was required to notify
Walmart of any accidents which impaired the prompt delivery of the cargo in its
possession or in the possession of any subcontractor. USAT Logistics was advised
by Plaintiff that the cargo it brokered is being warehoused but has made no effort
to collect it or reimburse Plaintiff for the storage thereof or make arrangements to
complete the transportation of the cargo to Walmart. To date, the approximately
37,000 pounds of Defendants’ bagged charcoal remains unclaimed in Plaintiff’s
storage facility.
USA Truck filed a crossclaim against Jackson Elite for contractual
indemnity and contribution for the alleged negligence of Jackson Elite’s driver.
Jackson Elite now moves to dismiss or to transfer pursuant to a forum selection
clause contained in the Broker Provider Agreement entered into by USA Truck and
Jackson Elite which provides:
All controversies and claims arising hereunder shall be brought in
the appropriate state or federal court having jurisdiction over
Crawford County, Arkansas.
Legal Standard
The Eighth Circuit Court of Appeals appears to hold that a district court
must apply federal law to the question of whether to enforce a forum selection
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clause. Union Elec. Co. v. Enery Ins. Mut. Ltd., 689 F.3d 968 (8th Cir. 2012).
Forum selection clauses are prima facie valid and are enforced unless they are
unjust or unreasonable or invalid for reasons such as fraud or overreaching. M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). Atl. Marine Const. Co. v.
U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 59 (2013) makes clear that “a
proper application of § 1404(a) requires that a forum-selection clause be ‘given
controlling weight in all but the most exceptional cases.’” 571 U.S. at 59-60
quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring)). They are enforceable unless they would actually deprive the
opposing party of his fair day in court. Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 590-95, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991).
“In general, federal courts give considerable deference to a plaintiff's choice
of forum and thus the party seeking a transfer under section 1404(a) typically bears
the burden of proving that a transfer is warranted.” Terra Int'l, Inc. v. Miss. Chem.
Corp., 119 F.3d 688, 695 (8th Cir. 1997); see also K-V Pharm. Co. v. J. Uriach &
CIA, S.A., 648 F.3d 588, 598 (8th Cir. 2011) (“The defendant has the burden of
persuasion in proving all elements necessary for the court to dismiss a claim based
on forum non conveniens”). The Eighth Circuit has “declined to offer an
‘exhaustive list of specific factors to consider’ in making the transfer decision[.]”
In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010) (quoting Terra Int'l, 119 F.3d at
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691). Instead, district courts considering a motion to transfer under § 1404(a) or for
forum non conveniens “must evaluate both the convenience of the parties and
various public-interest considerations.” Atl. Marine, 571 U.S. at 62. Private factors
include the “plaintiffs' choice of forum” and generally relate to the “practical
problems that make trial of a case easy, expeditious and inexpensive.” Id. at 62,
134 S.Ct. 568 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
(1981)). In contrast, “[p]ublic-interest factors may include the administrative
difficulties flowing from court congestion; the local interest in having localized
controversies decided at home; and the interest in having the trial of a diversity
case in a forum that is at home with the law.” Id.
Along with these factors identified by the Atlantic Marine Court, the Eighth
Circuit in Terra International identified factors to be considered when resolving
motions to transfer. The Terra International court identified the following as
“balance of convenience” factors: (1) the convenience of the parties, (2) the
convenience of the witnesses—including the willingness of witnesses to appear,
the ability to subpoena witnesses, and the adequacy of deposition testimony, (3) the
accessibility to records and documents, (4) the location where the conduct
complained of occurred, and (5) the applicability of each forum state's substantive
law. Terra Int'l, 119 F.3d at 696. With regard to “interest of justice” factors, the
Terra International court identified these factors: (1) judicial economy, (2) the
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plaintiff's choice of forum, (3) the comparative costs to the parties of litigating in
each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair
trial, (6) conflict of law issues, and (7) the advantages of having a local court
determine questions of local law. Id.
When the parties have agreed to a valid forum selection clause, the §
1404(a) analysis is altered in three ways. Atl. Marine, 571 U.S. at 62-67. “First, the
plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-
selection clause, the plaintiff bears the burden of establishing that transfer to the
forum for which the parties bargained is unwarranted.” Id. at 63. Second, a district
court may not consider arguments about the parties' private interest, but public-
interest factors only. Id. at 64 (“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.”).
Third, “a § 1404(a) transfer of venue will not carry with it the original venue's
choice-of-law rules—a factor that in some circumstances may affect public-interest
considerations.” Id. at 64-65, 134 S.Ct. 568.
Discussion
Jackson Elite argues that the Court must dismiss or transfer USA Truck’s
counterclaims to the Western District of Arkansas, Fort Smith Division pursuant to
28 U.S.C. § 1404(a) and the Agreement’s forum-selection clause. USA Truck does
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not challenge the mandatory nature of the forum selection clause, rather, it argues
as a preliminary matter that the claims in this case should not be transferred
because Jackson Elite has waived the defense of improper venue.
As a threshold matter, the Court will address USA Truck’s argument that
Jackson Elite has waived its defense of improper venue not raising the issue when
it removed Plaintiff’s action to this Court from the state court in which it was filed.
USA Truck argues Jackson Elite voluntarily submitted to the Court’s jurisdiction.
Waiver of Venue
Defendant argues that Plaintiff has waived its defense of improper venue by
not seasonably asserting it. The defense of improper “venue, like jurisdiction over
the person, may be waived. A defendant, properly served with process by a court
having subject matter jurisdiction, waives venue by failing seasonably to assert it.”
Hoffman v. Blaski, 363 U.S. 335, 343 (1960). Ordinarily, the defense of improper
venue is waived if it is not raised in a Rule 12(b)(3) motion to dismiss, in the
party's first responsive pleading, or the first amended responsive pleading allowed
as a matter of course. Fed. R. Civ. P. 12(h)(1). USA Trucking argues the Jackson
Elite waived the motion when it removed Plaintiff’s action. USA Trucking’s
argument, however, is without merit.
Jackson Elite filed the Motion 21 days after the crossclaim was filed. At the
time of removal, the Crossclaims had not yet been filed, thus, there was no case or
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controversy that existed between USA Truck and Jackson Elite to be transferred.
An anticipatory crossclaim does not give rise to an actual case or controversy
before the Court. A “case must be ‘ripe’—not dependent on ‘contingent future
events that may not occur as anticipated, or indeed may not occur at all.’ Texas v.
United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted).”
Trump v. New York, 592 U.S. 125, 131(2020). At the time of removal, the
crossclaims were not ripe; they were anticipatory, at best.
Contribution Claim
USA Truck argues Count II, contribution based on the alleged negligence of
Jackson Elite’s driver, does not fall within the perimeters of the forum selection
clause of the Broker Provider Agreement. Jackson Elite correctly argues the
Eighth Circuit opinion in Terra Intern., v. Mississippi Chemical Corp, 119 F.3d
688, 694-95 (8th Cir. 1997) provides otherwise.
“Whether tort claims are to be governed by forum selection provisions
depends upon the intention of the parties reflected in the wording of
particular clauses and the facts of each case.” Berrett v. Life Ins. Co. of the
Southwest, 623 F.Supp. 946, 948–49 (D.Utah 1985). An analysis of the
specific language of the forum selection clause in this case does not clearly
indicate whether the clause applies to Terra's tort claims. As we have
construed it, the clause requires any disputes arising under the license
agreement to be determined in Mississippi. Terra asserts that its negligence
and strict liability claims do not arise under the agreement because they are
based on MCC's breach of common law tort duties that are independent of
any duty arising from the license agreement, and they do not require a
particular construction of the agreement's terms. MCC, on the other hand,
contends that Terra's tort claims target the specific subject matter of the
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license agreement, the neutralizer technology, and explains that without the
license agreement, Terra never would have received the technology.
Although the cases deciding whether very similarly-worded forum selection
clauses cover tort claims have reached different conclusions, the majority of
these cases suggests that such clauses do apply to tort claims. In Banco
Popular de Puerto Rico v. Airborne Group PLC, 882 F.Supp. 1212
(D.P.R.1995), the parties entered into a sales agreement for the sale of a
blimp. The agreement contained a forum selection clause which provided
that “disputes hereunder or as to the construction of this Agreement shall be
resolved in the Courts of England.” Id. at 1213. The court determined that, in
addition to his breach of contract claims, this clause encompassed all of the
plaintiff's tort claims which included claims for negligent manufacture and
maintenance of the blimp. Id. at 1214, 1217. Additionally, another court
determined that a forum selection provision which read, “In the event of any
litigation commenced by either party hereunder, such action shall be
commenced in New York,” covered tort claims based on fraud and deceit.
Picken v. Minuteman Press Int'l, Inc., 854 F.Supp. 909 (N.D.Ga.1993). In
discussing the clause, which is remarkably similar to the one presently at
issue, the court explained that “Reading the word ‘hereunder’ to apply only
to a pure breach of contract claim between the parties would be unduly
crabbed and narrow. ‘Hereunder’ refers to the relations that have arisen as a
result of this contract.” Id. at 911; see also, Warnaco Inc. v. VF Corp., 844
F.Supp. 940, 947–49 (S.D.N.Y.1994) (finding tort claims covered by forum
selection clause reading, “Any dispute or issue arising hereunder....”); Nat'l
Micrographics Sys., Inc. v. Canon U.S.A., Inc., 825 F.Supp. 671, 677–78
(D.N.J.1993) (finding forum selection provision reading “any and all causes
of action hereunder by and between the parties hereto” covered claims for
tortious interference); but see, Hoffman v. Minuteman Press Int'l. Inc., 747
F.Supp. 552, 559 (W.D.Mo.1990) (holding that tort claim for fraudulent
inducement was not covered by forum selection clause reading “any
litigation commenced by either party hereunder”); Berrett, 623 F.Supp. at
947, 949 (finding that forum selection clause which read “parties agree that
any action at law or in equity hereunder” did not apply to several business-
related tort claims). These cases indicate that forum selection clauses
referring to claims “hereunder” or “under the agreement” can be broad
enough to cover contract-related tort claims.
Terra Int'l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 693–94 (8th Cir. 1997).
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The terms of the Broker Provider Agreement encompass Count II of the
Crossclaim.
Jackson Elite urges dismissal or alternatively, transfer of the crossclaim. The
Court is of the opinion that the most efficient and judicially economical approach
is transfer. In passing, USA Truck asks the Court to stay this action pending the
resolution of the crossclaim if it is to be transferred. The Court reserves ruling on
this request so that Plaintiff and Jackson Elite may have the opportunity to weigh
in on this issue.
Conclusion
Jackson Elite and USA Truck entered into a valid, binding forum selection
agreement. As such, the crossclaims must be adjudicated in the Western District of
Arkansas, Fort Smith Division.
Accordingly,
IT IS HEREBY ORDERED that Jackson Elite’s Motion to Transfer, [Doc.
45] is granted.
IT IS FURTHER ORDERED that the Crossclaims of USA Truck against
Jackson Elite are transferred to the Western District of Arkansas, Fort Smith
Division.
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IT IS FURTHER ORDERED that the parties are given 10 days from the
date of this Opinion, Memorandum, and Order to submit briefs on whether a stay
should be entered in this matter until resolution of the crossclaims.
Dated this 28th day of June, 2024.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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