E.D.N.Y. Notes Split Re Proper Rule 12 Clause for Dismissing Claims Based on Forum Selection Clauses

Per Private One of New York, LLC v. JMRL Sales & Service, Inc., Slip Copy, 2007 WL 203960 (E.D.N.Y. Jan. 24, 2007):

Although JMRL bases its motion to dismiss this action on Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1406(a), JMRL's argument is not literally based on these provisions but is predicated on the existence of a valid forum-selection clause. JMRL's decision to proceed under Rule 12(b)(3) appears to be based on district court cases which have applied this rule. See JMRL's Memorandum in Support of its Motion for Dismissal ("JMRL's Memo") at 4-5 (citing HongKong & Shanghai Banking Corp. v. Suveyke, 392 F.Supp.2d 489, 490-91 (E.D.N.Y.2005)); see also Person v. Google, Inc., 456 F.Supp.2d 488, 492-93 (S.D.N.Y.2006). However, while some courts in this Circuit have analyzed motions to dismiss based on a forum-selection clauses as if they were brought under Rule 12(b)(3), the Second Circuit has analyzed such motions under Rule 12(b)(1), see, e.g., AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 152 (2d Cir.1984), and other Circuits have used Rule 12(b)(6). See, e.g., LFC Lessors, Inc. v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 7 (1st Cir.1984).

In New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24 (2d Cir.1997), the Second Circuit acknowledged this split in authority, noting that the circuits had not reached "consensus ... as to the proper procedural mechanism to request dismissal of a suit based upon a valid forum selection clause." Id. at 28. Recognizing that "there is no existing mechanism with which forum selection enforcement is a perfect fit," id. at 29, the Second Circuit "refused to pigeon-hole these claims into a particular clause of Rule 12(b)." Asoma Corp. v. SK Shipping Co., 467 F.3d 817, 822 (2d Cir.2006). Instead, it established a separate framework for analyzing these cases.

Under this framework, the moving party must first show evidence of "an apparently governing forum selection clause." Id. The burden is then on the plaintiff who brought suit in a forum other than the one designated by that clause "to make a 'strong showing' in order to overcome the presumption of enforceability." Id. (quoting New Moon Shipping, 121 F.3d at 29). That burden is "analogous to that imposed on a plaintiff to prove that the federal court has subject matter jurisdiction over his suit or personal jurisdiction over the defendant." New Moon Shipping, 121 F.3d at 29. In the early stages of litigation, such a plaintiff "need only make a prima facie showing by alleging facts which, if true, would support the court's exercise of jurisdiction." Id. (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)).