Eleventh Circuit Weighs in on Split Re Proper Vehicle for Enforcing Forum-Selection Clauses

Per Slater v. Energy Services Group Intern. Inc., --- F.3d ----, 2011 WL 782023 (11th Cir. Mar. 8, 2011):

Slater contends that the district court abused its discretion by dismissing her claims for improper venue pursuant to Rule 12(b)(3) rather than applying the transfer analysis under 28 U.S.C. 1404(a). Slater claims that because § 1404(a) is the only proper procedural mechanism for enforcing a forum-selection clause which designates venue in another United States District Court, the district court erred by applying Rule 12(b)(3) instead of § 1404(a).

Our sister circuits disagree regarding the appropriate vehicle for enforcing forum-selection clauses. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (recognizing circuit split); see e.g., Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 539 (6th Cir.2002) (holding that the proper analysis is under 28 U.S.C. § 1404(a)); Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir.1998) (applying Rule 12(b)(3) to an international forum-selection clause); Lambert v. Kysar, 983 F.2d 1110, 1112 n.1 (1st Cir.1993) (applying Rule 12(b)(6)); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 153 & n.8 (2d Cir.1984) (applying Rule 12(b)(1) to an international forum-selection clause).

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[W]e conclude that § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on a forum-selection clause.