United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
Through this action, Plaintiff LT Leasing, Incorporated ("Plaintiff") seeks to recover damages from Defendants NHA Hamburger Assekuranz-Agentur GmbH ("NHA") and Uniqa Sachversicherung Ag ("Uniqa") (collectively, "Defendants") for their alleged breach of an insurance contract. NHA has filed a motion requesting that the Court either dismiss this case under the common-law doctrine of forum non conveniens or transfer this case to a more convenient forum in the United States under 28 U.S.C. § 1404(a). ECF No. 9. Plaintiff opposes both dismissal and transfer. For the reasons that follow, Defendants' Motion is DENIED.
Plaintiff is a California corporation with its principal place of business in South Lake Tahoe, California. Defendant NHA is a German limited liability company with its principal place of business in Hamburg, Germany. NHA is an agent for Defendant Uniqa, which is an Austrian corporation with its principal place of business in Vienna, Austria.
Plaintiff is the owner of the M/Y R Rendezvous, a 110-foot yacht ("the Yacht"). On April 12, 2013, Plaintiff entered into a written contract with Sevenstar Yacht Transport B.V. ("Sevenstar B.V.") of Amsterdam, Netherlands, to transport the Yacht from Port Everglades, Florida to Ensenada, Mexico. Sevenstar B.V. appointed its Florida agent, Sevenstar Yacht Transport USA Agencies, LLC ("Sevenstar USA") to make the necessary arrangements. Sevenstar USA, in turn, assigned a loadmaster in Florida to oversee the load and stowage of the Yacht aboard the M/V Rickmers Tianjin.
On April 14, 2013, Plaintiff delivered the Yacht to the M/V Rickmers Tianjin in Florida for transportation to Mexico. Plaintiff contends that the Yacht was in good order and condition before it was loaded onto the M/V Rickmers Tianjin; NHA maintains that the Yacht "had defects or conditions which were observed and documented by several witnesses in Florida." NHA's Mot. at 5-6. The parties, however, agree that the Yacht was damaged during the lifting process onto the M/V Rickmers Tianjin.
As required under the transportation contract with Sevenstar B.V., Plaintiff had purchased from Defendants all-risk cargo insurance without any deductible to cover the Yacht in the event of loss or damage. Sevenstar B.V. issued a Certificate of Insurance (Number 282/2013) covering the Yacht ("the Certificate"). The Certificate states that Defendants agreed to insure the Yacht from risks of loss or damage. The Certificate also provides: "This insurance is subject to English law and practice." Additionally, the Certificate indicates that NHA "has insured the above mentioned goods for the voyage and value stated on behalf of Sevenstar [B.V.] under policy number XXXX-XXXX-XXX."
Plaintiff contends that the Yacht was covered from all risks of physical loss under the Certificate when it was damaged during the lifting process in Florida. After using its own resources (approximately $375, 950) to repair that damage, Plaintiff initiated a claim against Defendants for insurance benefits. According to NHA, however, "much of what was claimed by [Plaintiff] was pre-existing or not connected to the transport of the [Y]acht." NHA's Mot. at 8, Oct. 22, 2014, ECF No. 9. Defendants have not paid any money towards the damage of the Yacht.
Plaintiff's Complaint identifies three claims for relief: (1) breach of contract, (2) declaratory relief against all defendants, and (3) tortious breach of the implied covenant of good faith and fair dealing.
In its Motion, NHA argues that the Court should either dismiss this case under the common-law doctrine of forum non conveniens or transfer this case to a more convenient forum in the United States under 28 U.S.C. § 1404(a). In its Opposition to NHA's Motion (ECF No. 18), Plaintiff counters that neither dismissal nor transfer is appropriate. NHA advances an entirely new argument in its Reply (ECF No. 20) in asking that the Court enforce a forum-selection clause in the Certificate. Plaintiff quickly filed an Objection to NHA's Reply (ECF No. 23), which requested that the Court either strike the Reply or permit Plaintiff to file a surreply.
The Court will address each of these arguments, beginning first with NHA's claim that the Certificate includes a forum-selection clause. See Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S.Ct. 568, 581 (2013) (explaining that the analysis of a "§ 1404(a) motion (or a forum non conveniens motion).... changes, however, when the parties' contract contains a valid forum-selection clause").
A. Forum-Selection Clause
Although this Court "need not consider arguments raised for the first time in a reply brief, " Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007), the Court now addresses and summarily dismisses NHA's newly raised argument.
The Certificate states: "This insurance is subject to English law and practice." Plaintiff and NHA agree that this provision is a choice-of-law clause, and that English law governs this suit. In its Reply, however, NHA suggests that the provision also serves as a forum-selection clause. But "[t]his insurance is subject to English law and practice" does not identify, let alone mandate, a specific forum for litigating disputes under the Certificate. Cf. Atl. Marine, 134 S.Ct. at 575 (analyzing a contract that provided all disputes between the parties "shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division."); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 2 (1972) ("Any dispute arising must be treated before the London Court of Justice."); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 511 (9th Cir. 1988) ("For any controversy regarding interpretation or fulfillment of the present contract, the Court of Florence has sole jurisdiction."). Because the choice-of-law clause does not require that the parties litigate their disputes under the Certificate in a specific forum, it does not also serve as a forum-selection clause.
NHA appears to suggest that the relevant forum-selection clause is found not in the Certificate, but rather in the "master policy" (which designated Germany as the mandatory forum). See NHA's Reply at 5, Dec. 1, 2014, ECF No. 20 ("the Certificate of Insurance provides that English law and practice apply and incorporates the conditions of the underlying policy of insurance which includes the German forum."). But the master policy was an agreement between Sevenstar B.V. and Pantaenius, and Plaintiff was not a party to that contract. See E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002) ("It goes without saying that a contract cannot bind a nonparty."). Cf. M/S Bremen, 407 U.S. at 17-18 ("Whatever inconvenience' Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting."). NHA's suggestion that the Certificate "incorporates" the master ...