United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
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.
reasons discussed below, the Defendants' motion is
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.
November 14, 2014, two bills of lading 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.
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).
12(c) Motion to Dismiss
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).
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)
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
a three-step analysis guides the exercise of this
discretion. 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;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 ...