Full Opinion (html_with_citations)

Case: 23-30305       Document: 74-1      Page: 1     Date Filed: 07/17/2024




        United States Court of Appeals
             for the Fifth Circuit                              United States Court of Appeals
                                                                         Fifth Circuit

                             ____________                              FILED
                                                                   July 17, 2024
                               No. 23-30305                       Lyle W. Cayce
                             ____________                              Clerk

Marek Matthews,

                                                        Plaintiff—Appellant,

                                    versus

Tidewater, Incorporated; Tidewater Crewing, Limited,

                                        Defendants—Appellees.
               ______________________________

               Appeal from the United States District Court
                  for the Eastern District of Louisiana
                        USDC No. 2:21-CV-1530
               ______________________________

Before Barksdale, Southwick, and Graves, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
       Plaintiff Marek Matthews alleges that, during the course of his
employment with the two Defendants, he was exposed to toxic chemicals
resulting in end-stage renal failure, stage IV cancer, and other injuries. The
district court found Matthews’s employment contract contained a valid and
enforceable forum-selection clause requiring litigation in England. The court
accordingly dismissed the case on forum non conveniens grounds.
       We AFFIRM.
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                                 No. 23-30305


           FACTUAL AND PROCEDURAL BACKGROUND
       This suit stems from injuries Matthews sustained while working as a
seaman and captain for Tidewater Crewing, Ltd., on offshore supply vessels
allegedly managed by Tidewater, Inc. (collectively, “Defendants” or
“Tidewater”).       Tidewater, Inc., is incorporated in Delaware, and its
principal place of business is in Texas.        Tidewater Crewing, Ltd., is
incorporated and maintains its principal place of business in the Cayman
Islands.   Although Matthews previously resided in Honduras, he was
approved in 2007 for permanent residency in the United States and is a
Florida resident.
       From the start of his employment in 1982 until 2016, Matthews alleges
he suffered various injuries while working on Tidewater’s assignments in the
Red Sea. Specifically, Matthews contended he was exposed to hazardous
chemicals such as benzene, xylene, and methanol on Tidewater’s supply
vessels. According to Matthews, Tidewater did not provide him with any
means of protection from the alleged chemical exposure. Among other
alleged injuries, Matthews sustained end-stage renal disease, kidney failure,
and prostate cancer.
       Before departing on any months-long shift, Matthews would sign a
“Working Agreement” that governed the terms of his employment with
Tidewater. The Working Agreement required that any dispute arising out of
Matthews’s employment with Tidewater be litigated in the High Court of
Justice in London, England.
       In February 2021, Matthews and other plaintiffs filed suit against
Tidewater in Louisiana state court 1 alleging various claims of negligence,

       _____________________
       1
        The plaintiffs originally sued Tidewater, Inc., Tidewater Crewing, Ltd.,
Tidewater Marine International, Inc., and Tidewater Marine LLC. When the federal




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unseaworthiness, maintenance and cure, and damages under the Jones Act,
46 U.S.C. § 30104
, and United States general maritime law. In August 2021,
Tidewater removed the suit to the United States District Court for the
Eastern District of Louisiana. In October 2021, Tidewater moved to dismiss
the action under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim and, alternatively, under the doctrine of forum non conveniens.
        On February 28, 2023, the district court granted Tidewater’s motion
to dismiss based on forum non conveniens. The court determined the forum-
selection clause was valid and enforceable, and the forum non conveniens
public-interest factors favored a foreign forum. The court did not consider
Tidewater’s Rule 12(b)(6) arguments.
        Matthews filed a motion under Rule 59(e) and requested the court
reconsider its dismissal order because the forum-selection clause was
unenforceable. On April 25, 2023, the district court denied the motion.
Matthews now appeals the district court’s February 28 and April 25 orders.
                                    DISCUSSION
        Before considering the merits of Matthews’s arguments, we first
clarify which district court order Matthews appeals. Matthews’s notice of
appeal stated he appeals both the court’s dismissal order and the Rule 59(e)
motion denial order. In his appeal brief, Matthews neither mentions the
Rule 59(e) motion nor contends the court erred in denying the motion. He
does state twice that the district court’s dismissal constitutes “manifest legal
error.” Matthews engages in a discussion of the court’s February dismissal


        _____________________
district court dismissed the case following removal from state court, Tidewater, Inc., and
Tidewater Crewing, Ltd., were the remaining defendants and Matthews was the remaining
plaintiff.




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order and argues several times that the court erroneously dismissed his case
on forum non conveniens grounds.
       During oral argument, Matthews’s counsel insisted that Matthews is
appealing the merits of the Rule 59(e) motion denial. In other words,
Matthews intended to file the appeal on the basis that the district court
committed “manifest error in the law” in denying the Rule 59(e) motion.
Our conclusions do not turn on whether both orders were appealed, and we
will review both.
       Because Matthews filed his notice of appeal after the district court
denied his Rule 59(e) motion, “the ruling on the Rule 59(e) motion merges
with the prior determination, so that the reviewing court takes up only one
judgment.” Banister v. Davis,
590 U.S. 504, 509
 (2020) (citing 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2818, at 246 (3d ed. 2012)).
“The court thus addresses any attack on the Rule 59(e) ruling as part of its
review of the underlying decision.” Id.
I.     The district court’s dismissal order
       We begin with the district court’s grant of Tidewater’s motion to
dismiss. Matthews’s counsel asserted during oral argument in this court that
the forum-selection clause is unenforceable under the Jones Act. The Jones
Act was not one of the issues briefed on appeal, and accordingly we will not
address it. See United States v. Bowen,
818 F.3d 179
, 192 n.8 (5th Cir. 2016).
Instead, we consider whether the forum-selection clause is unenforceable in
light of Louisiana public policy and Matthews’s physical conditions.
       The parties disagree on the proper standard of review of the district
court’s forum non conveniens dismissal. Matthews insists this court should
review the district court’s determination of the forum-selection clause’s
enforceability de novo. Tidewater admits that “[w]hile a district court’s




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determination that a forum selection clause is mandatory and enforceable is
reviewed de novo, its decision on the forum non conveniens balancing test is
reviewed for abuse of discretion.”
       In 2016, we addressed this exact issue: “We review the district court’s
interpretation of the [forum-selection clause] and its assessment of that
clause’s enforceability de novo, then we review for abuse of discretion the
court’s balancing of the private- and public-interest factors.” Weber v. PACT
XPP Techs., AG,
811 F.3d 758, 768
 (5th Cir. 2016). Therefore, our review of
the district court’s analysis of the forum-selection clause’s enforceability is
de novo.
       Matthews argues the forum-selection clause in the Working
Agreement is neither valid nor enforceable. The Supreme Court has held
that “the appropriate way to enforce a forum-selection clause pointing to a
state or foreign forum is through the doctrine of forum non conveniens,” and
then outlined a modified framework. Atlantic Marine Constr. Co. v. U.S. Dist.
Ct. for W. Dist. of Tex.,
571 U.S. 49, 60
, 63–65 (2013). Traditionally, when
performing a forum non conveniens analysis, a court “must determine whether
there is an adequate alternative forum and, if so, decide which forum is best-
suited to the litigation by considering a variety of private- and public-interest
factors and giving deference to the plaintiff’s choice of forum.” Barnett v.
DynCorp Int’l, LLC,
831 F.3d 296, 300
 (5th Cir. 2016). “[A] valid forum-
selection clause simplifies this analysis.”
Id.
 “‘First, the plaintiff’s choice
of forum merits no weight’ because, by contracting for a specific forum, ‘the
plaintiff has effectively exercised its “venue privilege” before a dispute
arises.’”
Id.
 (quoting Atlantic Marine,
571 U.S. at 63
). “Second, the private-
interest factors ‘weigh entirely in favor of the preselected forum,’ so that the
‘district court may consider arguments about public-interest factors only.’”
Id.
 (quoting Atlantic Marine,
571 U.S. at 64
).




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       “If the forum-selection clause is both mandatory and enforceable, the
court must decide whether, under Atlantic Marine’s balancing test, the case
is one of the rare cases in which the public-interest [forum non conveniens]
factors favor keeping a case despite the existence of a valid and enforceable
[forum-selection clause].” Noble House, LLC v. Certain Underwriters at
Lloyd’s, London,
67 F.4th 243, 249
 (5th Cir. 2023) (alterations in original)
(quotation marks and citation omitted).
       The district court here determined the forum-selection clause was
mandatory. It examined the public-interest factors only after concluding the
clause was enforceable.       On appeal, Matthews neither disputes the
mandatory nature of the clause nor challenges the district court’s
consideration of the forum non conveniens public-interest factors. Thus, all we
need consider is whether the clause is enforceable, which is determined
“under the ‘unreasonable under the circumstances’ framework.”
Id.
       A plaintiff may demonstrate a forum-selection clause is unreasonable
under the circumstances if:
       (1) the incorporation of the forum selection clause into the
       agreement was the product of fraud or overreaching; (2) the
       party seeking to escape enforcement will for all practical pur-
       poses be deprived of his day in court because of the grave in-
       convenience or unfairness of the selected forum; (3) the funda-
       mental unfairness of the chosen law will deprive the plaintiff of
       a remedy; or (4) enforcement of the forum selection clause
       would contravene a strong public policy of the forum state.
Haynsworth v. The Corp.,
121 F.3d 956, 963
 (5th Cir. 1997) (quotation marks
and citation omitted). Matthews “bears a heavy burden of proof” to
demonstrate the clause’s unreasonableness.
Id.
 (quotation marks and
citation omitted).




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        Matthews relies on the second and fourth reasonableness exceptions.
We limit our review to these contested exceptions.
        Beginning with the second reasonableness exception, 2 Matthews does
not dispute the fairness of England as a forum, 3 only the inconvenience of
traveling to England on account of his health conditions. Matthews argues
these       conditions   render    the   forum-selection       clause    unreasonable
“cumulatively under the circumstances.”
        Matthews’s health conditions do not prevent the enforceability of the
forum-selection clause. See Calix-Chacon v. Glob. Int’l Marine, Inc.,
493 F.3d 507, 515
 (5th Cir. 2007). Notably, plaintiffs may remotely litigate in foreign
forums because of modern technology.
Id.
 We need not examine the logistics
of litigation in England. We simply conclude Matthews’s health conditions,
though serious, do not give him a right to bring suit in Louisiana state court.
His physical limitations do not render the forum-selection clause
unreasonable under the circumstances.
        Matthews primarily focuses on the fourth reasonableness exception,
arguing the forum-selection clause is invalid and unenforceable 4 because it

        _____________________
        2
         Matthews does not specifically couch this argument under the second
reasonableness exception. However, because Matthews is essentially arguing his health
conditions constitute such an inconvenience as to render the forum-selection clause
unenforceable, we examine this argument within the context of the second exception.
        3
          As the district court observed, we have deemed England a “fair and impartial”
forum. Haynsworth,
121 F.3d at 967
. Thus, an English forum will likely not present such
grave inconvenience or unfairness as to prevent the enforceability of the forum-selection
clause or deprive Matthews of a remedy.
        4
         Matthews attempts to distinguish between the forum-selection clause’s validity
and its enforceability. This court has not made a “distinction between validity and
enforceability,” and “treat[s] those words as synonyms in the forum-selection clause
context.” Barnett,
831 F.3d at 302
. Accordingly, we decline to determine whether these
are separate issues and only examine whether the forum-selection clause contravenes a




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                                   No. 23-30305


runs afoul of Louisiana public policy. The Supreme Court has stated that a
forum-selection “clause should be held unenforceable if enforcement would
contravene a strong public policy of the forum in which suit is brought,
whether declared by statute or by judicial decision.” M/S Bremen v. Zapata
Off–Shore Co.,
407 U.S. 1, 15
 (1972). The Court further clarified, “the forum
clause should control absent a strong showing that it should be set aside.”
Id.
(emphasis added). Matthews insists Louisiana is the relevant forum, not the
federal forum where the suit was removed. This court, Matthews argues,
must therefore look to Louisiana public policy delineated by state statute and
by state judicial decisions to determine the enforcement of the forum-
selection clause. Matthews relies in part on this Louisiana statute:
        The provisions of every employment contract or agree-
        ment . . . which . . . includes a choice of forum clause or choice
        of law clause in an employee’s contract of employ-
        ment . . . shall be null and void except where the choice of fo-
        rum clause or choice of law clause is expressly, knowingly, and
        voluntarily agreed to and ratified by the employee after the oc-
        currence of the incident which is the subject of the civil or ad-
        ministrative action.
La. R.S. § 23:921A(2). Because he did not ratify the forum-selection clause
after the onset of his health conditions, Matthews argues “Louisiana law
renders the forum selection clause a nullity and invalid.”
       Matthews then argues that Section 23:921A(2) constitutes strong
public policy against the enforcement of forum-selection clauses in
Louisiana, relying on statements in Sawicki v. K/S Stavanger Prince,
802 So. 2d 598
 (La. 2001). In Sawicki, a seaman was injured during the course of his

       _____________________
strong public policy of the forum outlined in the reasonable-under-the-circumstances
analysis. See id. at 303.




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employment. Id. at 600. He filed suit in Louisiana state court, but the
defendants alleged the action should be dismissed because the plaintiff had
signed a collective bargaining agreement with a forum-selection clause
mandating litigation in a foreign forum. Id. at 600–01.
       First, the Louisiana Supreme Court acknowledged the United States
Supreme Court’s holding that forum-selection clauses should be enforceable
unless they run afoul of “a strong public policy of the forum.” Id. at 602
(quoting Bremen,
407 U.S. at 15
). The Louisiana court then concluded that
“La. Rev. Stat. 23:921A(2) is an expression of strong Louisiana public policy
concerning forum selection clauses.” Id. at 603. It remanded the case to the
district court to apply Section 23:921A(2) and determine whether the seaman
“expressly, knowingly, and voluntarily” ratified the agreement after his
injury. Id. at 606.
       The question thus becomes whether we can enforce the forum-
selection clause even though it contradicts Louisiana’s strong public policy.
The underlying issue framing this question is whether the Supreme Court in
Bremen was referring to the state forum, federal forum, or both, when it stated
a forum-selection “clause should be held unenforceable if enforcement
would contravene a strong public policy of the forum in which suit is brought.”
407 U.S. at 15
 (emphasis added).
       We have previously confronted these issues when considering how
Section 23:921A(2) affects an arbitration clause in international employment
contracts. See Lim v. Offshore Specialty Fabricators, Inc.,
404 F.3d 898, 901
(5th Cir. 2005). In Lim, seamen brought suit in the United States District
Court for the Eastern District of Louisiana claiming the defendant violated
wage requirements.
Id. at 900
. The defendant moved to dismiss arguing the
plaintiffs’ employment contracts required arbitration in the Philippines.
Id.




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        This court examined whether the defendant could enforce an
arbitration clause 5 in the plaintiffs’ employment contracts in light of
“Louisiana’s anti-forum-selection clause statute.”
Id.
 at 901 (citing La. R.S.
§ 23:921A(2)). The Lim court recognized that in considering the Bremen
analysis, it was faced with whether the United States or Louisiana was the
relevant forum. Id. at 905. It first defined “[f]orum . . . as ‘[a] court or other
judicial body; a place of jurisdiction.’” Id. (second alteration in original)
(quoting Black’s Law Dictionary (8th ed. 2004)). The Lim court
acknowledged the definition could encompass either a federal or state forum
and accordingly refrained from “decid[ing] whether the United States [was]
the relevant forum.” Id. Consequently, it “consider[ed] both United States
and Louisiana public policy in [its] . . . Bremen reasonableness analysis.” Id.
        The Lim court concluded “the overall balance of public policy
concerns favor[ed] enforcing the arbitration agreements,” even considering
Louisiana’s public policy in Section 23:921A(2) and in Sawicki. Id. at 906.
The plaintiffs, therefore, could not overcome the “high burden of proof” to
demonstrate the agreements were unreasonable. Id.
        Just as in Lim, we, too, decline to determine the relevant forum and
examine both Louisiana and federal public policy.                 Section 23:921A(2)
constitutes strong public policy against the enforcement of forum-selection
clauses that are not ratified after a plaintiff sustains injuries giving rise to the
suit. Sawicki,
802 So. 2d at 606
. Turning to federal public policy, “forum
selection clauses in admiralty cases are presumptively valid and
enforceable.” Marinechance Shipping, Ltd. v. Sebastian,
143 F.3d 216, 220
(5th Cir. 1998). “To overcome the presumption that the forum selection

        _____________________
        5
          “An arbitration clause is a subset of a forum selection clause.” Lim,
404 F.3d at 901
 (citing Scherk v. Alberto–Culver Co.,
417 U.S. 506, 519
 (1974)).




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clause is enforceable, the party challenging the clause must make a strong
showing that the clause is unreasonable.”
Id.
 (emphasis added) (quotation
marks and citation omitted).       The Bremen Court warned that “much
uncertainty and possibly great inconvenience to both parties could arise” if
parties could choose to bring suit in any jurisdiction where injuries could
occur or where a party may reside instead of enforcing a forum-selection
clause according to how the parties contracted.
407 U.S. at 13
. The
enforcement of maritime forum-selection clauses eliminates “all such
uncertainties by agreeing in advance on a forum acceptable to both parties
[and] is an indispensable element in international trade, commerce, and
contracting.”
Id.
 at 13–14.
       It is true that the plaintiffs in Lim were not Jones Act seamen as
Matthews claims to be in his complaint. The Lim plaintiffs were disputing
an arbitration clause instead of a forum-selection clause. The distinctions,
however, are inapposite to our analysis here. The similarities are more
important. The present case, as did Lim, involves a plaintiff who is not a
Louisiana resident and an international employment contract requiring
litigation in a foreign forum. We also stress Matthews’s lack of connections
to Louisiana. Matthews worked for Tidewater, Inc., a Delaware corporation,
and Tidewater Crewing, Ltd., a Cayman Islands corporation. He filed suit
for injuries sustained outside the United States while servicing Egyptian oil
wells in the Red Sea. Further, just as the Lim court observed, Section
23:921A(2) protects Louisiana citizens from being forced to litigate their case
in a foreign forum.
404 F.3d at 906
. Matthews is not a Louisiana citizen and
has scant, if any, connections to Louisiana. He, therefore, is not the object of
the statute. See
id.
       We recognize the forum-selection clause contravenes the strong
public policy of Louisiana.      We are, however, wary of creating any
inconsistency or unpredictability that federal public policy so adamantly



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                                     No. 23-30305


strains to prevent. Louisiana public policy conflicts with and frustrates the
federal public policy’s presumption of validity and arguably perpetuates the
uncertainties Bremen warns against. Even if Louisiana’s public policy is
relevant under a Bremen analysis, its particular application in this case does
not overcome the federal public policy’s presumption of a maritime forum-
selection clause’s validity.
        Matthews fails to make a “strong showing” the clause is unreasonable
under the circumstances; Louisiana public policy and his health conditions
do not outweigh the presumption of enforcement under federal public policy.
See Bremen,
407 U.S. at 15
. The forum-selection clause is thus reasonable,
and, consequently, valid and enforceable.
        The district court did not err in dismissing Matthews’s case on forum
non conveniens grounds and appropriately considered the forum non conveniens
public-interest factors under Atlantic-Marine’s modified test.
II.     The district court’s Rule 59(e) motion denial
        “[T]his court reviews the denial of a Rule 59(e) motion only for abuse
of discretion.” 6 Trevino v. City of Fort Worth,
944 F.3d 567, 570
 (5th Cir.
2019) (quotation marks and citation omitted). “Rule 59(e) ‘serve[s] the
narrow purpose of allowing a party to correct manifest errors of law or fact or
to present newly discovered evidence.’” Templet v. HydroChem Inc.,
367 F.3d 473, 479
 (5th Cir. 2004) (alteration in original) (quoting Waltman v. Int’l
Paper Co.,
875 F.2d 468, 473
 (5th Cir. 1989)). A Rule 59(e) motion to alter a

        _____________________
        6
          Though “the district court considered the materials attached” to Matthews’s
Rule 59(e) motion, we decline to review the court’s denial de novo. Templet v. HydroChem
Inc.,
367 F.3d 473, 477
 (5th Cir. 2004). In this circuit, we review denials of Rule 59(e)
motions for reconsideration de novo when a district court grants summary judgment and
considered the motion’s materials. See
id.
 Here, because the district court granted
Tidewater’s motion to dismiss, abuse-of-discretion review is appropriate.




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judgment “is an extraordinary remedy” that should be granted “sparingly.”
Id.
        The district court first determined that “every argument raised in
[Matthews’s] [m]otion could have been raised earlier by [Matthews] in
response to [Tidewater’s] [m]otion to [d]ismiss.” 7 Indeed, under our
precedent, the district court was correct in concluding Matthews’s
“[m]otion could be summarily denied on that ground alone” as he could have
raised his contentions before the district court’s dismissal order. Templet,
367 F.3d at 479
; Simon v. United States,
891 F.2d 1154, 1159
 (5th Cir. 1990).
        The district court, however, continued to the merits of the motion.
We will as well. In his Rule 59(e) motion, Matthews first argued the forum-
selection clause is unenforceable “because it violates the strong public policy
of protecting Jones Act seamen.”                  He next insisted the clause is
unenforceable under Louisiana’s public policy and requiring Matthews to
litigate his suit in England is “onerous and prejudicial” given his deteriorated
health. The district court had already carefully considered the forum-
selection clause’s enforceability in its dismissal order, and concluded the
clause was valid and enforceable — a conclusion with which we agree.
        As previously stated, we decline to address the merits of the district
court’s rejection of Matthews’s Jones Act argument as it was not briefed on
appeal. See Bowen,
818 F.3d at 192
 n.8. Given the district court’s thorough
consideration of his Rule 59(e) motion arguments and its correct analysis in
the dismissal order, Matthews has not identified a manifest error of law
concerning the enforceability of the forum-selection clause. AFFIRMED.


        _____________________
        7
           The district court, on two separate occasions, advised both sides they could seek
leave to file supplemental briefing on Tidewater’s motion to dismiss.




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