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Thyssenkrupp Materials NA, Inc. v. Kacey

United States District Court, S.D. New York

February 16, 2017

THYSSENKRUPP MATERIALS NA, INC., Plaintiff,
v.
M/V KACEY, her engines, boilers, tackle, etc., SPV 1 LLC, TECHNOMAR SHIPPING CO. INC., Defendants.

          OPINION AND ORDER

          Edgardo Ramos, U.S.D.J.

         Thyssenkrupp Materials NA, Inc. (“Plaintiff”) brings this admiralty action against M/V Kacey, SPV 1 LLC (“SPV 1”) and Technomar Shipping Co. Inc. (“Technomar” and together, the “Defendants”) for loss and damage to its cargo. Before this Court is the Defendants' motion to dismiss for forum non conveniens pursuant to Fed.R.Civ.P. 12(c), on the basis of a forum selection clause in the bills of lading issued for the shipment of plaintiff's cargo.

         For the reasons discussed below, the Defendants' motion is GRANTED.

         I. Background

         Plaintiff is the owner or duly authorized representative of the owners of 447 pieces of steel pipe shipped on board the vessel M/V Kacey. Complaint at ¶ 2, Complaint Schedule A. The M/V Kacey is owned by SPV 1 and managed by Technomar. Notice of Motion at ¶ 3.

         On November 14, 2014, two bills of lading[1] were issued for carrying the cargo on the M/V Kacey from Subric, Philippines to Houston, Texas. Complaint Schedule A, Notice of Motion Exhibit C. The bills of lading contained a forum selection clause which states that “[a]ny dispute arising under this Bill of Lading shall be decided in the country where the Carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein.” Notice of Motion Exhibit C (Bills of Lading) at ¶ 32. The bills of lading define “carrier, ” inter alia, as the owner of the vessel, in this case, SPV 1. Id. at ¶ 1.

         Plaintiff filed the instant case on May 15, 2015, bringing an in rem action against the M/V Kacey, and in personam actions against SPV 1 and Technomar for the loss and damage of the steel pipes. The precise cause of the damage is not stated. On August 13, 2015, Defendants filed an answer asserting twenty-one affirmative defenses. On May 6, 2016, Defendants filed the instant motion to dismiss for forum non conveniens pursuant to Rule 12(c).

         II. Legal Standard

         1.Rule 12(c) Motion to Dismiss

          A party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). A Rule 12(c) motion should be granted “if, from the pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir.1995) (per curiam).

         In deciding a 12(c) motion, the Court may consider “the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)). The Court may also consider documents incorporated into the complaint by reference or integral to the complaint, provided there is no dispute regarding their authenticity, accuracy, or relevance. Id.; see also Piazza v. Florida Union Free Sch. Dist., 777 F.Supp.2d 669, 677 (S.D.N.Y. 2011) (12(c) motion).

         2. Forum Non-Conveniens

         The appropriate procedural mechanism for filing a motion to enforce a forum selection clause designating a foreign forum is a motion to dismiss for forum non conveniens. Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 580 (2013). The doctrine of forum non conveniens allows a court to dismiss an action “even if the court is a permissible venue with proper jurisdiction over the claim.” LaSala v. Bank of Cyprus Pub. Co. Ltd., 510 F.Supp.2d 246, 254 (S.D.N.Y. 2007) (quoting Carey v. Bayerische Hypo- und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir. 2004)). “A decision to grant or deny a motion to dismiss a cause of action under the doctrine of forum non conveniens lies wholly within the broad discretion of the district court.” Scottish Air Int'l, Inc. v. British Caledonian Grp., PLC, 81 F.3d 1224, 1232 (2d Cir. 1996).

         Ordinarily, a three-step analysis guides the exercise of this discretion.[2] If there is a forum selection clause at issue, however, the calculus is altered because a valid forum selection clause is given “controlling weight in all but the most exceptional cases.” Atlantic, 134 S.Ct. at 581;[3]see also M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972) (forum selection clauses are “prima facie valid” and should be enforced unless demonstrated to be “unreasonable” under the circumstances). In such instances, the Court must determine: (1) whether the forum selection clause is valid, and (2) whether public interest factors ...


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