Nationwide Mutual Insurance Company v. Fortier

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NATIONWIDE MUTUAL INSURANCE 	* 	CIVIL ACTION NO. 25-2498
COMPANY
* 	JUDGE ELDON E. FALLON
VERSUS
* 	MAGISTRATE JUDGE
CODY FORTIER 	EVA J. DOSSIER
*
* 	* 	* 	* 	* 	* 	*
ORDER & REASONS
Before the Court is a Motion to Transfer Venue filed by Defendant Cody Fortier. R. Doc. 7.
Plaintiff Nationwide Mutual Insurance Company (“Nationwide”) opposes the motion. R. Doc. 11.
Considering the record, briefing, and applicable law, the Court now rules as follows.
I. 	BACKGROUND
This is a breach of contract action brought by Nationwide against Cody Fortier. R. Doc. 1.
Nationwide alleges that it entered into an indemnity agreement with Defendant Fortier wherein, in
exchange for both corporate and personal indemnity from Fortier and his company, Rigid
Constructors, LLC (“Rigid”), Nationwide would issue surety bonds on certain construction
projects in Louisiana and Texas. Id. at 1–4. Nationwide issued bonds pursuant to the indemnity
agreement on two relevant projects—one in Pontchartrain, Louisiana, and one in Houston, Texas.
Id. at 5–8. Fortier allegedly failed to reimburse Nationwide for the costs it incurred related to these
two bonds, despite both Nationwide’s demands and the indemnity agreement’s charge to do so. Id.
at 5–9. This lawsuit followed.
II. 	PRESENT MOTION
Fortier now moves for a change of venue, arguing that the United States District Court for
the Eastern District of Louisiana is an improper venue and asking for the transfer of this matter to
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the Western District of Louisiana, Lafayette Division. R. Doc. 7. He argues that, pursuant to 28
U.S.C. § 1391(b)(1), the Western District is the only available venue because it is the “judicial
district in which [the] defendant resides.” R. Doc. 7-1 at 4. Additionally, Fortier presses that there
are no facts alleged in the Complaint that substantiate Nationwide’s claim that a “substantial part
of the events or omissions” occurred in the Eastern District of Louisiana to give rise to venue under
28 U.S.C. § 1391(b)(2). Id. However, if the Court were to find that the Eastern District is a
permissible venue under 28 U.S.C. § 1391, he asks the Court to transfer this case to the Western
District of Louisiana, Lafayette Division, pursuant to 28 U.S.C. § 1404(a). Id. at 5–6.
Nationwide opposes the motion, primarily arguing that the indemnity agreement’s forum
selection clause provides that Nationwide may bring an action in this judicial district and that
Fortier waived his right to challenge venue in this forum. R. Doc. 11. It alternatively argues that
the Complaint provides sufficient facts to show that a substantial portion of the events giving rise
to the claims occurred in the Eastern District. Id. at 6. Specifically, Nationwide argues that the
complaint adequately describes that “[t]he reason why [it] was forced to incur attorney’s and
professional’s fees is because of the multiple claims made on the [Pontchartrain project]” for work
done within the Eastern District of Louisiana, and that this “is more than enough, under Section
1391(b)(2), for the Complaint to be filed in the Eastern District.” Id. at 6.
III. 	LEGAL STANDARD
Section 1406 provides that “district court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought.” To determine whether venue is
wrong in the present division or district, courts turn to 28 U.S.C. § 1391. Section 1391 provides
three statutorily-permissible venue options: (1) the judicial district where all defendants reside,
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(2) “judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated,” or (3) if there
is no district under the first two subsections, any judicial district in which any defendant is subject
to the court’s personal jurisdiction in the relevant action. 28 U.S.C. § 1391(b)(1)–(3).
“Section 1391 dictates where a plaintiff may properly bring a civil suit unless the parties
negotiated a forum-selection clause.” Blue Racer Midstream, LLC v. Kelchner, Inc., No. 16-3296,
2018 WL 993781, at *1 (N.D. Tex. Feb. 21, 2018) (citing 28 U.S.C. § 1391). In the usual course
and in the absence of a forum selection clause, if the plaintiff’s chosen forum does not comport
with 28 U.S.C. § 1391, a court may transfer venue pursuant to 28 U.S.C. § 1406. But under certain
circumstances, like in the event of a forum selection clause, “parties may consent to a venue that
is not expressly authorized by statute.” J.D. Fields & Co. v. Shoring Eng’rs, 391 F. Supp. 3d 698,
705 (S.D. Tex. June 13, 2019).
“It is well-settled that venue is proper in any district agreed to under a forum selection
clause—even if that district would not have been proper under § 1391.” WorldVentures Holdings,
LLC v. Mavie, No. 18-393, 2018 WL 6523306, at *14 (E.D. Tex. Dec. 12, 2018); see also Huawei
Techs. Co. v. Yiren Huang, No. 17-893, 2018 WL 1964180, at *8 (E.D. Tex. Apr. 25, 2018). The
Supreme Court has established that a “valid forum-selection clause should be given controlling
weight in all but the most exceptional cases.” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist.
of Tex., 571 U.S. 49, 63 (2013). In the Fifth Circuit, a forum selection clause is “prima facie valid
and enforceable unless the opposing party shows that enforcement would be unreasonable.” Kevlin
Servs., Inc. v. Lexington State Bank, 46 F.3d 13, 15 (5th Cir. 1995) (citing M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 10 (1972)).
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A venue may also be available under 28 U.S.C. § 1391 and be a venue provided for by a
forum selection clause. In that event, the moving party would request a transfer under 28 U.S.C.
§ 1404(a). A valid and enforceable forum selection clause modifies the typical 28 U.S.C. § 1404(a)
analysis. “Under the transfer venue analysis, the Court deems the private interest factors weigh
heavily in favor of the chosen forum because the parties agreed to the valid forum-selection clause,
but the court may consider public interest factors.” Blue Racer Midstream, 2018 WL 993781, at
*3 (citing Atlantic Marine, 571 U.S. at 63–64). “However, public interest factors rarely defeat the
agreed upon forum because the party opposing the agreed-to forum must show the public interest
factors ‘overwhelmingly disfavor’ that forum.” Id. (citing Atlantic Marine, 571 U.S. at 66).
IV. 	DISCUSSION
Defendant asks the Court to transfer venue to the Western District of Louisiana, Lafayette
Division, because Plaintiff’s choice of venue is not proper under 28 U.S.C. § 1391, and the Western
District of Louisiana, Lafayette Division, is the proper venue pursuant to § 1391(b)(1). R. Doc. 7.
Plaintiff claims that Defendant waived his right to challenge venue in the Eastern District of
Louisiana through the indemnity agreement’s forum selection clause. R. Doc. 11. Furthermore,
Plaintiff presses that this is a proper venue pursuant to § 1391(b)(2).
For the following reasons, the Court finds that the Eastern District is a proper venue under
§ 1391(b)(2) and, even if this district was not a statutorily proper venue, Defendant is barred from
making venue objections pursuant to the forum selection clause.
A. A Substantial Part of the Events or Omissions Are in the Eastern District.
Defendant contests that the Eastern District of Louisiana is a proper statutory venue. R.
Doc. 7. Section 1391(b)(2) provides that venue can lie in “a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of the property
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that is the subject of the action is situated.” Nationwide avers that it filed suit in the Eastern District
of Louisiana because a substantial portion of the damages it incurred in this case are the result of
work done and omissions that occurred on the Pontchartrain project—a project located within the
geographical bounds of the Eastern District of Louisiana. R. Doc. 11 at 6.
The Fifth Circuit has stated that “[a]lthough the chosen venue does not have to be the place
where the most relevant events took place, the selected district’s contacts still must be substantial.”
McClintok v. Sch. Bd. E. Feliciana Par., 299 F. App’x 363, 365 (5th Cir. 2008). Additionally,
district courts observe that this inquiry is more qualitative than quantitative, requiring the court to
assess the overall nature of the plaintiff’s claims and the specific events or omissions in the forum.
E.g., Interconnect Media Network Sys., LLC v. Devs. & Managers Grp., LLC, No. 21-4212, 2023
WL 4497263, at *4 (W.D. La. July 12, 2013).
Here, Nationwide alleged enough facts to allow venue to lie in the Eastern District of
Louisiana. The indemnity agreement provides that Fortier promised to “exonerate, indemnity and
save harmless Surety from and against any and all Loss” related to the issued bonds. R. Doc. 11-1
at 14. “A promise to exonerate a surety creates in the promisor ‘a duty to perform the underlying
obligation at the time the performance is due.’” Zurich Am. Ins. Co. v. Tejas Concrete & Materials
Inc., 982 F. Supp. 2d 714, 722 (W.D. Tex. 2013) (quoting Restatement (3d) of Suretyship & Guar.
(1996) § 21 cmt. i). According to Nationwide, Fortier had a duty to pay the subcontractors and
suppliers who performed work on, inter alia, the Pontchartrain project. E.g., R. Doc. 1 at 6–7.
Therefore, omissions, such as the alleged failure to pay certain suppliers and subcontractors who
performed work or provided supplies to the Pontchartrain project, occurred in the Eastern District
of Louisiana. As a result, multiple payment bond claims were submitted, which caused Nationwide
to incur substantial losses and expenses. See 28 U.S.C. § 1391(b)(2). Therefore, the events and
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omissions giving rise to a substantial portion of Nationwide’s claim occurred in the Eastern District
of Louisiana. The Court finds that the Eastern District is a proper venue for this action.
Fortier asked the Court to transfer venue pursuant to 28 U.S.C. § 1404(a) in the event the
Court found that the Eastern District is a proper venue. Before conducting this analysis, the Court
must address Nationwide’s argument that Fortier waived his right to challenge venue through the
forum selection clause because the Court’s determination of that issue will affect the § 1404(a)
analysis.
B. Venue Is Proper Under the Forum Selection Clause.
Even though the Eastern District is a proper venue, the Court notes that parties seemingly
may waive their right to challenge venue through a forum selection clause even when the chosen
forum or fora would not be considered proper venue(s). “The Fifth Circuit has not definitively
addressed the question of whether the parties may agree to litigate in an otherwise improper forum;
however, other district courts have persuasively held that venue is proper in any agreed upon
district under a forum selection clause—even if that district would not have been proper under
§ 1391.” B & T Boat Rentals, 2021 WL 3660980, at *4 (citing Huawei Techs., 2018 WL 1964180,
at *7–8). Thus, “in the absence of Fifth Circuit precedent invalidating forum-selection clauses that
provide for venues outside of § 1391’s categories,” the Court notes that it would reach the same
conclusion—that venue is proper in the Eastern District of Louisiana—even if it determined this
district was not statutorily proper.
The Court begins by looking to the forum selection clause. The relevant indemnity
agreement states the following:
The Indemnitors submit to the jurisdiction of the state and federal
courts situated in New York, waiving any defenses of lack of
personal jurisdiction and waiving venue arguments, including forum
non conveniens, in any action brought by Surety in the State of New
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York. Surety reserves the right to bring an action in any state where
an Indemnitor has substantial contacts or where a project covered by
a Bond subject to this Agreement is located or where a claimant
brings suit against Surety on a Bond covered by this Agreement and
Indemnitors agree to submit to the jurisdiction of the courts in such
state.
R. Doc. 11-1 at 8. The forum selection clause clearly provides Nationwide with the option to file
suit in New York’s state and federal courts and provides that Fortier, by signing the agreement,
waived venue objections in those fora. Then, the clause further provides Nationwide with three
less defined forum options: it can bring an action (1) “in any state where an Indemnitor has
substantial contacts;” (2) “in any state . . . where a project covered by a Bond subject to this
Agreement is located;” or (3) “in any state . . . where a claimant brings suit against a Surety on a
Bond covered by this Agreement and Indemnitors agree to submit to the jurisdiction of the courts
in such a state.” Id.
Nationwide invokes the second option because a bond issued pursuant to the indemnity
agreement covered the project in Pontchartrain, Louisiana. R. Doc. 11 at 2–3. This is part, but not
all, of the reasoning why the forum selection clause allows the Eastern District of Louisiana to be
one of many permissible fora. Here, Nationwide did not commence the litigation in the named
permissive forum of the state or federal courts of New York. Instead, Nationwide elected to bring
this action in one of the three malleable forum options—notably, also, forum options listed in a
sentence that prefaces each of the three options with the clause that Nationwide “reserves the right
to bring an action in any state where . . .” one of the three following circumstances applies. R. Doc.
11-1 at 8 (emphasis added). The Court must first address whether this federal court falls within the
clause’s “any state” language.
Though less clear than the sentence addressing New York as a venue, courts in this circuit
have interpreted similar language to provide for venue in either state or federal courts. E.g.,
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LeBlanc v. C.R. England, Inc., 961 F. Supp. 2d 819, 829 (N.D. Tex. 2013) (“the ‘State of Utah’
terminology leaves venue open to both state and federal courts . . . given that there are both state
and federal courts located and operating in Utah state”). For example, in LeBlanc v. C.R. England,
Inc., the court evaluated a forum selection clause that stated “the venue of litigations . . . shall be
in the State of Utah.” Id. That court found that the language provides for venue in both federal and
state court, reasoning that this determination “comports with that of numerous other courts in the
Fifth Circuit and elsewhere holding that unless the terminology clearly eliminates federal courts
from the venue equation, and there are federal courts operating in the venue described, that venue
is proper in federal and state courts.” Id. (citing Alliance Health Grp., LLC v. Bridging Health
Options, LLC, 553 F.3d 397, 399–400 (5th Cir. 2008)). Thus, the forum selection clause does
provide that the Eastern District of Louisiana is a contractually permissible forum because it is a
court “in [a] state . . . where a project covered by a Bond subject to this Agreement is located.”
The Court finds that Fortier contractually waived any venue objections in this Court via
the binding forum selection clause in the indemnity agreement. However, the Court must now
determine if the forum selection clause is enforceable.
C. Defendant Did Not Show That the Clause Is Unreasonable.
Forum selection clauses in a written contract, in the Fifth Circuit, will be prima facie valid
and enforceable unless the party opposing its applicability shows that it is unreasonable. E.g., J.D.
Fields & Co., 391 F. Supp. 3d at 705 (citing Kevlin, 46 F.3d at 15). “A forum selection clause is
‘potentially’ unreasonable if:
(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)
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enforcement of the forum selection clause would contravene a
strong public policy of the forum state.”
Id. at 705–06 (quoting Haynsworth v. The Corporation, 121 F.3d 956, 963 (5th Cir. 1997)). The
party challenging the enforceability bears a heavy burden of proof. Id. at 706 (citing Haynsworth,
121 F.3d at 963). Here, Fortier has failed to carry his heavy burden of showing that the forum
selection clause is unreasonable, and indeed, does not address this issue in its motion briefing. See
R. Doc. 11. Moreover, Fortier does not ask the Court to interpret the contract. Therefore, the forum
selection clause is prima facie valid. The Court will now turn to the forum selection clause’s effect
on the § 1404(a) analysis.
D. 28 U.S.C. § 1404(a) Transfer Analysis.
“A forum-selection clause alters the usual venue transfer analysis because the court deems
the private interest factors weigh in favor of the parties’ preselected forum.” Blue Racer Midstream,
2018 WL 993781, at *1 (citing Atlantic Marine, 571 U.S. at 63–64). “‘A district court may consider
arguments about public-interest factors;’ however, the public interest factors ‘will rarely defeat’
the forum-selection clause.” Id. (citing Atlantic Marine, 571 U.S. at 64). The public interest factors
are: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in
having localized interests decided at home; (3) the familiarity of the forum with the law that will
govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the
application of foreign law.” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008).
Defendant did not address the public interest factors in his briefing. Moreover, the Court
does not find that any of the public interest factors overwhelmingly disfavor the bargained-for
forum options in the indemnity agreement, which resulted in the Eastern District being one of the
bargained-for venues. The Court will not transfer this case to the Western District of Louisiana,
Lafayette Division, pursuant to § 1404(a).
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V. 	CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion to transfer venue, R. Doc. 7, is DENIED.
New Orleans, Louisiana, this 18th day of March, 2026.
THE HONORABLE ELDON E. FALLON
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