HC&D, LLC v. Cashman Equipment Corp.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

HC&D, LLC, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 22-10224-DPW

PRECISION NDT & CONSULTING, LLC, )

and CASHMAN EQUIPMENT CORP., )

)

Defendants. )

MEMORANDUM AND ORDER

REGARDING

SEVERANCE AND TRANSFER

September 29, 2023

TABLE OF CONTENTS

I. FACTUAL BACKGROUND.......................................... 5

A. The Parties ............................................. 5

B. The Purchase Agreement .................................. 6

C. The Gauging Report ...................................... 7

II. PROCEDURAL BACKGROUND...................................... 9

III. ANALYSIS................................................. 11

A. Personal Jurisdiction .................................. 12

B. The Transfer Mechanism ................................. 19

C. Private and Public Transfer Interests .................. 24

D. Transfer and the Forum-Selection Clause ................ 28

1. Forum Selection Clause in Agreement Between HC&D and

Cashman ............................................... 33

2. Private and Public Interests Relevant to Precision .... 33

3. Severance of Precision’s Claims ....................... 34

4. Efficiency and Precision’s Private Interests .......... 35

5. Conclusion ............................................ 36

IV. CONCLUSION................................................ 38

This dispute among three sophisticated commercial entities

— HC&D, LLC (“HC&D”), Cashman Equipment Corp. (“Cashman”), and

Precision NDT & Consulting, LLC (“Precision”) — surfaces from

turmoil caused by the sale of expensive maritime equipment: a

freight barge (the “Barge”). Plaintiff HC&D and Defendant

Cashman were the two signatories to the actual Purchase and Sale

Agreement (“Purchase Agreement”) for the Barge. The Purchase

Agreement contained a forum-selection clause requiring disputes

“arising” under the agreement to be litigated in Massachusetts.

Precision, a company that performed work for Cashman prior

to the execution of the Purchase Agreement, was also named by

HC&D as a defendant in this case. After Precision raised issues

pertaining to this court’s personal jurisdiction over it, HC&D

reversed its initial strategic choice to file in the United

States District Court for the District of Massachusetts and

moved to transfer the case in its entirety to the United States

District Court for the Western District of Louisiana.

When initiating this litigation, HC&D had available at

least two alternatives. First, HC&D could have, as it did, file

a lawsuit in Massachusetts where it would be met, as it was,

with a motion to dismiss based on this court’s lack of personal

jurisdiction over co-defendant Precision.

Alternatively, HC&D could have filed two separate, but very

similar, lawsuits respectively against each of the co-defendants

— Cashman in Massachusetts and Precision in Louisiana — and

pursued the two separate suits simultaneously, thus severing

what was conceived as one dispute arising under the Purchase

Agreement into two cases in two different districts.

In an electronic order on March 31, 2023, following the

parties’ supplemental memorandum regarding Precision’s motion to

transfer the entire case to the Western District of Louisiana, I

granted Precision’s motion to transfer and promised a Memorandum

providing directions for the transfer procedure. Meanwhile and

well after the promised transfer Memorandum was expected to

issue, I continued to reflect on the proper form transfer should

take.1 This in turn has caused me to reconsider my electronic

1 By the luck of the draw, I have over the past several years

been called upon to rule on the question of transfer when the

court does not have jurisdiction over all defendants. My

written opinions in such cases have resolved the transfer

question by ordering transfer of the case to a district having

jurisdiction over all parties. See Ferris v. Darrell, No. 18-

cv-10204-DPW, 2020 WL 4431763 (D. Mass. July 13, 2020);

TargetSmart Holdings, LLC v. GHP Advisors, LLC, 366 F. Supp. 3d

195 (D. Mass. 2019). As reported in Lewis v. Hill, No. 19-cv-

12500-DPW, 2023 WL 4706575, at *23 n.15 (D. Mass. July 24,

2023), where the subsequent history of those cases is recounted,

those transfers provided more manageable, expeditious and

inexpensive means of proceeding in the face of reluctant and

recalcitrant litigants and their counsel. In Lewis, I followed

a similar protocol, after full consideration of the implications

of transfer for parties having disparate resources who

“carefully and strategically avoided asking for transfer.”

Lewis, at *1. By contrast, as will appear in this Memorandum,

severance of the claims of defendants followed by transfer of

only the defendant over whom this district does not have

jurisdiction, appears the more manageable, expeditious and

inexpensive course when confronted with the collection of

reluctant and recalcitrant litigants in this case.

order that this case be transferred to the Western District of

Louisiana in its entirety.

Having now reconsidered my earlier disposition toward

keeping the claims against both defendants bundled together in a

single jurisdiction, I have concluded that HC&D should not

pursue this case, in its entirety, in Massachusetts. The

salience of the forum-selection clause in a Purchase Agreement

for a maritime vessel as a distinctive fact affecting my

determination, counsels that I balance the competing interests

by transferring only HC&D’s claims against Precision to the

Western District of Louisiana while maintaining jurisdiction

over its claims against Cashman in Massachusetts. More

fundamentally, the severance of the respective claims separately

alleged against the two defendants would — as a pragmatic

approach and in a practical manner — best promote the interests

of justice by its prospect for making resolution of the two

severed cases more manageable, expeditious and inexpensive.

I. FACTUAL BACKGROUND

A. The Parties

Plaintiff HC&D is a limited liability company organized

under the laws of the State of Hawaii with a principal place of

business in Honolulu, Hawaii. All members of this limited

liability company are citizens of Hawaii. HC&D represents that

it is one of the main producers of concrete in Hawaii and

intended to purchase the Barge in order to transport concrete

between the Hawaiian Islands.

Defendant Cashman is a marine construction corporation

organized under the laws of Massachusetts with a principal place

of business in Braintree, Massachusetts. In addition, as

discussed more fully below, HC&D asserts in its filings, and

Cashman does not dispute, that Cashman conducts a meaningful

amount of business in the state of Louisiana and has a business

address there.

Defendant Precision is a limited liability company

organized under the laws of Louisiana with an office in

Patterson, Louisiana. All members of this limited liability

company are citizens of Louisiana. Precision is an American

Bureau of Shipping (“ABS”) certified hull inspection company

that conducts visual inspections of vessels like the barge at

issue.

B. The Purchase Agreement

In September 2020, HC&D and Cashman entered into the

Purchase Agreement under which Cashman sold the Barge to HC&D

for $1,985,500.2 The Purchase Agreement has both a forum-

selection clause and a choice of law clause pointed toward the

2 HC&D alleges a purchase price of $1,985,500 [Dkt. No. 4 ¶ 7],

though the Purchase Agreement, itself, lists a price of

$1,900,000. [Dkt. No. 4-1 at ¶ 1] The source of the $85,500

discrepancy is unclear but is, in any event, immaterial for

purposes of this Memorandum.

use of a Massachusetts location and Massachusetts legal doctrine

in the resolution of disputes; these clauses read respectively

as follows:

Paragraph 14 [forum-selection]:

All disputes arising hereunder shall be submitted for

resolution at Boston, Massachusetts before a court of

competent jurisdiction.

[Dkt. No. 4-1 ¶ 14]

Paragraph 13 [choice of law]:

The validity and interpretation of this Agreement and

the rights and obligations of the parties hereto shall

be governed in all respects by the laws of the

Commonwealth of Massachusetts without giving effect to

the conflicts of law provisions thereof.

[Id. ¶ 13]

C. The Gauging Report

In April 2019, prior to the execution of the Purchase

Agreement between HC&D and Cashman, Precision prepared a Hull

Diminution Survey (also referred to as the “Gauging Report”) for

ABS pertaining to the Barge. This is an industry standard

report that tests the condition of the steel of a vessel. HC&D

claims Cashman knew HC&D would not purchase the Barge without a

satisfactory Gauging Report demonstrating seaworthiness and,

further, that HC&D relied on Precision’s Gauging Report when

executing the Purchase Agreement. The Gauging Report, however,

is not referenced in the Purchase Agreement.

HC&D had no direct dealings with Precision as part of the

sale of the Barge. Instead, the Gauging Report was prepared by

Precision at the behest of Cashman over a year prior to the

execution of the Purchase Agreement and was later presented to

HC&D by Cashman, on Cashman letterhead, during their

negotiations. HC&D alleges that it is a common and accepted

industry practice to use prior reports of a vessel’s condition

as accurate representations when contemplating the purchase of a

vessel.

HC&D alleges more specifically that Precision’s Gauging

Report was not, in fact, an accurate representation of the

Barge’s condition and seaworthiness because it contained “false,

misleading, and inaccurate information regarding the thickness

and wastage of the Barge’s steel.” HC&D contends both Cashman

and Precision either willfully or negligently misrepresented the

true condition of the Barge in connection with the sale.

D. Subsequent Events

After the execution of the Purchase Agreement between HC&D

and Cashman, HC&D towed the Barge from Amelia, Louisiana to

California. Upon arrival in California, in February 2021,

visual inspection of the Barge revealed it to be “flooded and

holed out,” an impossibility if Precision’s Gauging Report was

an accurate representation of the Barge’s condition and

seaworthiness. HC&D claims to have spent $3,991,868.77 in

repairing the Barge.

II. PROCEDURAL BACKGROUND

In its Amended (and operative) Complaint,3 HC&D alleges the

following against Cashman alone:

Count I: Fraud in the Inducement [Dkt. No. 4 ¶¶ 92-110]

Count II: Fraud [Id. ¶¶ 111-119]

Count III: Negligent Misrepresentation [Id. ¶¶ 120-124]

Count IV: Violations of Mass. Gen. Laws ch. 93A, §§ 2 and

11 [Id. ¶¶ 125-135]

Against Precision alone, HC&D alleges:

Count V: Fraud [Id. ¶¶ 136-140]

Count VI: Fraudulent Misrepresentation [Id. ¶¶ 141-145]

Count VII: Negligent Misrepresentation [Id. ¶¶ 146-153]

Count VIII: Violations of the Louisiana Unfair Trade

Practices Act (“LUTPA”) [Id. ¶¶ 154-163]

Cashman filed a Motion to Dismiss the Amended Complaint

pursuant to FED. R. CIV. P. 12(b)(6) contending that the Purchase

Agreement disclaims any representations as to the Barge’s

condition or seaworthiness. [Dkt. No. 9] Consequently, argues

Cashman, HC&D’s allegations stumble at the gangway before it can

set forth on successful litigation of the dispute regarding the

Purchase Agreement. [Id. at 1]

For its part, Precision filed a Motion to Dismiss pursuant

to FED. R. CIV. P. 12(b)(2) contending that the claims in the

Amended Complaint against it must be dismissed based on this

Court’s lack of personal jurisdiction. As part of this motion,

3 The Amended Complaint was filed shortly after this action was

commenced and before the defendants had answered or responded to

the initial complaint.

Precision asserts that it is organized and headquartered in

Louisiana with a principal place of business there. Precision

further asserts that it does not operate in, provide goods or

services in, advertise in, or employ any sales agents in

Massachusetts. During the relevant time frame, Precision did

not derive any revenue from Massachusetts; nor did its corporate

officers or directors live in Massachusetts.

Precision argues that HC&D’s alleged injury did not arise

out of Precision’s acts or omissions in Massachusetts and that

Precision does not engage in continuous and systematic business

activity in Massachusetts. Precision consequently contends this

court lacks personal jurisdiction over it.

Confronted with Precision’s 12(b)(2) motion, HC&D reversed

course and filed a Motion to Transfer the case to Louisiana in

its entirety. In that motion, HC&D argued that venue is proper

in both Massachusetts and Louisiana but has sidestepped the

dispute whether this court has personal jurisdiction over

Precision, instead specifically asking that the matter be sent

to the Western District of Louisiana where personal jurisdiction

over both Cashman and Precision would indisputably exist.

Precision and Cashman opposed HC&D’s Motion to Transfer.

Precision argued that HC&D’s decision to file in Massachusetts

was a benighted initial strategic choice that HC&D should be

bound by after the parties have spent money to litigate in

Massachusetts. Precision asks that I deny the Motion to

Transfer and, instead, grant its Motion to Dismiss.

Cashman offers a more complete argument and raises three

points: (1) there has been no change in circumstances since the

beginning of the litigation that would justify the change in

venue; (2) venue in Louisiana is not proper as to Cashman; and

(3) litigation in Louisiana violates the forum-selection clause

HC&D and Cashman agreed to in the Purchase Agreement. [Dkt. No.

30 at 2-6] I address all of these arguments below.

Although afforded the opportunity to do so, neither party

has addressed the propriety of transferring only HC&D’s claims

against Precision to the Western District of Louisiana.

III. ANALYSIS

As noted at the outset of this Memorandum, see supra note

1, I have reconsidered the form the appropriate transfer order

should take in this case. I have done so following a more

refined analysis of the implications of several previous cases

in which I have dealt with issues involving disputed transfer

initiatives. In conducting my further analysis of the issues in

this case, I have particularly reviewed the law in both the

First Circuit and the Fifth Circuit to ensure I am applying the

correct legal standards for questions of personal jurisdiction,

venue, and transfer within the two circuits at issue in this

case. While I find that the legal standards of the two relevant

circuits are materially aligned in these heavily litigated

procedural areas, I will note when they differ and how those

differences might impact analysis.

A. Personal Jurisdiction

I find Massachusetts does have personal jurisdiction over

Cashman, HC&D’s second named defendant in the first amended

complaint. However, as Precision asserts, I find that a

Massachusetts court lacks personal jurisdiction over it.

As part of my determination of whether transferring certain

claims in this case to another district is appropriate, I will

focus on whether the state of Louisiana might exercise personal

jurisdiction over Precision, because HC&D has specifically asked

me to transfer this case to the Western District of Louisiana.

In a diversity case, a federal court may exercise personal

jurisdiction over a non-resident defendant if the forum state’s

long-arm statute confers personal jurisdiction and the exercise

of personal jurisdiction over the defendant satisfies the

requirements of the Due Process Clause of the U.S. Constitution.4

4 The First Circuit has “suggested that Massachusetts’s long-arm

statute might impose more restrictive limits on the exercise of

personal jurisdiction than does the Constitution.” Copia

Commc’ns, LLC v. AMResorts L.P., 812 F.3d 1, 4 (1st Cir. 2016).

The Louisiana Long-Arm Statute is said to be “co-extensive with

the limits of due process under the Constitution” so “the

jurisdictional analysis under the Louisiana Long-Arm Statute

collapses into a single inquiry of whether the exercise of

personal jurisdiction comports with due process.” Libersat v.

Sundance Energy Inc. 437 F. Supp. 3d 557, 565 (W.D. La.

2020)(Summerhays, J.)(citing Petroleum Helicopoters, Inc. v.

See Astro-Med v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.

2009); McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009).

The plaintiff bears the burden of proving that a court has

personal jurisdiction over the defendants in response to a

12(b)(2) motion but is only required to present prima facie

evidence that personal jurisdiction exists. Daynard v. Ness,

Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51

(1st Cir. 2002); Frank v. PNK (Lake Charles) L.L.C., 947 F.3d

331, 336 (5th Cir. 2020).

As a matter of due process, personal jurisdiction can be

based on either “general jurisdiction” or “specific

jurisdiction.” See Astro-Med, 591 F.3d at 9; Halliburton Energy

Servs., Inc. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 539

(5th Cir. 2019). General jurisdiction exists when a defendant’s

“affiliations with the State are so ‘continuous and systematic’

as to render [it] essentially at home in the forum state.”

Daimler AG v. Bauman, 571 U.S. 117, 138 (2014) (quoting Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011)). In the Fifth Circuit, “[g]eneral jurisdiction can be

assessed by evaluating contacts of the defendant with the forum

over a reasonable number of years, up to the date the suit was

filed.” Johnston v. Multidata Sys. Int’l Corp, 523 F.3d 602,

Avco Corp. et al., 513 So.2d 1188, 1192 (La. 1987); In re

Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521,

546 (5th Cir. 2014)).

610 (5th Cir. 2008) (quoting Access Telecom, Inc. v. MCI

Telecomms. Corp., 197 F.3d 694, 717 (5th Cir. 1999)).

A court may exercise specific jurisdiction over a defendant

if the plaintiff’s particular claims “arise out of or relate to

the defendant’s contacts” with the forum state. Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct., 592 U.S. ---, 141 S. Ct. 1017,

1025 (2021). Both the First Circuit and Fifth Circuit use a

three-prong inquiry to determine whether specific jurisdiction

exists.5 To exercise specific jurisdiction over a defendant, a

court must find that (1) the defendant has minimum contacts with

the forum state, i.e. that the defendant purposely directed its

activities toward the state or purposefully availed itself of

the privileges of conducting activities there; (2) the

plaintiff’s claims arise out of or result from these forum-

related contacts; and (3) the exercise of personal jurisdiction

is fair and reasonable. Seville v. Maersk Line, Ltd., 53 F.4th

890, 895 (5th Cir. 2022); see Johnson v. TheHuffingtonPost.com,

Inc., 21 F.4th 314, 317-318 (5th Cir. 2021); accord Vapotherm,

Inc. v. Santiago, 38 F.4th 252, 258 (1st Cir. 2022).

The record does not support a finding that would subject

Precision either to general or specific personal jurisdiction in

5 While the First and Fifth Circuits word the tests slightly

differently and in a different order of questions, I find the

tests are effectively the same.

Massachusetts.6 As an entity with a principal place of business

in Louisiana, Precision has demonstrated that it has had no

contacts with Massachusetts that would make it at home for

purposes of the work of Massachusetts courts.

Precision’s contacts with Massachusetts in this case appear

to be limited to its agreement to prepare the Gauging Report

for, and delivery of the Gauging Report to, Cashman. There does

not appear to be a dispute that Precision’s inspection of the

Barge leading to the Gauging Report was conducted in Louisiana,

where the Barge was registered.

Precision acknowledges that it is a limited liability

company organized and headquartered in Louisiana with a

principal place of business in Louisiana and, further, that its

two individual members are citizens of and reside in Louisiana.

Precision’s inspection leading to the Gauging Report was either

conducted — or represented as conducted — in Louisiana and the

Gauging Report was presumably completed, or to be completed, in

6 In this District, when applying the prima facie method to a

12(b)(2) motion, a court takes facts alleged by a plaintiff as

true, views them in its favor, and “add[s] to the mix facts put

forward by the defendants, to the extent that they are

uncontradicted.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar

Ass’n., 142 F.3d 26, 34 (1st Cir. 1998). With that in mind, I

have relied on HC&D’s allegations in its Amended Complaint.

Because HC&D does not dispute them, I will also consider the

jurisdictional facts submitted by Precision. [Dkt. Nos. 20-1,

41].

Louisiana. This is sufficient7 to subject Precision to both

general and specific jurisdiction in Louisiana.8

Having found that Louisiana may exercise personal

jurisdiction over Precision, but Massachusetts may not, I am of

the view that the fact Massachusetts may exercise personal

jurisdiction over Cashman becomes immaterial to the discussion

of where this case may proceed against Precision. I move on to

the question of which judicial districts would provide an

appropriate venue for this case. “[T]he general purpose of

statutorily specified venue. . .is ‘to protect the defendant

against the risk that a plaintiff will select an unfair or

inconvenient place of trial.” Uffner v. La Reunion Francaise,

S.A., 244 F.3d 38, 43 (1st Cir. 2001) (quoting Leroy v. Great W.

United Corp., 443 U.S. 173, 183–84 (1979)). 28 U.S.C. § 1391

7 In the Western District of Louisiana, a plaintiff need only

demonstrate a prima facie basis for personal jurisdiction

through the allegations in the complaint. If the defendant does

dispute the factual grounds for personal jurisdiction, a court

“may consider the record before it, including ‘affidavits,

interrogatories, depositions, oral testimony, or any combination

of the recognized methods of discovery.” Libersat, 437 F. Supp.

3d at 565 (quoting Quick Technologies, Inc. v. Sage Group PLC,

313 F.3d 338, 344 (5th Cir. 2002)). I have therefore relied on

HC&D’s allegations in its Amended Complaint, as well as the

affidavit HC&D’s attorney submitted and the affidavits that

Precision’s attorney submitted in determining whether HC&D has

established the prima facie basis to find Cashman and Precision

are subject to jurisdiction in Louisiana.

8 Personal jurisdiction over Cashman in this District is not

meaningfully disputed, given Cashman is a corporation organized

under Massachusetts law. [Dkt. No. 34-2 at 11, 19] That is the

paradigm for an entity to be at home as a resident of the

Commonwealth.

governs the question of whether venue is “wrong” or “improper.”

Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. Of Tex.,

571 U.S. 49, 55 (2013).

28 U.S.C. § 1391(b) states:

A civil action may be brought in-

(1) a judicial district in which any defendant resides,

if all defendants are residents of the State in

which the district is located;

(2) a judicial district in which a substantial part of

the events or omissions giving rise to the claim

occurred, or a substantial part of property that is

the subject of the action is situated; or

(3) if there is no district in which an action may

otherwise be brought as provided in this section,

any judicial district in which any defendant is

subject to the court’s personal jurisdiction with

respect to such action.

28 U.S.C. § 1391(b).

These three categories are interpreted such that venue may

be proper in more than one district. Astro-Med, 591 F.3d at 12;

CAM Logistics, L.L.C. v. Pratt Indus., Inc., No. 1:20-CV-00445,

2021 WL 4485890, at *15 (W.D. La. Aug. 11, 2021) (Perez-Montes,

M.J.) (citing Zurich Am. Ins. Co. v. Tejas Concrete & Materials

Inc., 982 F. Supp. 2d 714, 722-23 (W.D. Tex. 2013)), amended

report and recommendation adopted, 2021 WL 4483853 (W.D. La.

Sept. 29, 2021) (Drell, J.)). In cases such as this, in which

there is more than one claim and defendant, the plaintiff “bears

the burden of demonstrating that venue is proper with respect to

each claim and each defendant.” Get In Shape Franchise, Inc. v.

TFL Fishers, LLC, 167 F. Supp. 3d 173, 195 (D. Mass. 2016)

(Saris, C.J.) (citing Stars for Art Prod. FZ, LLC v. Dandana,

LLC, 806 F. Supp. 2d 437, 447-48 (D. Mass. 2011)).

I find Cashman’s efforts to parse the exact location of

various alleged acts, omissions, or misrepresentations not in

keeping with “holistic” view I am required to take in assessing

venue. HC&D structured its complaint in such a way that the

Gauging Report, presumably completed in Louisiana based upon an

apparent inspection of the Barge there, is a central issue.

While other relevant events might have occurred elsewhere, I

accord significant weight to the Gauging Report and find that it

was a substantial part of the series of events giving rise to

HC&D’s claim. The substance of the Gauging Report is important

enough to its theory of the litigation as a whole that HC&D

included Precision, the creator of the report, as a co-defendant

in its suit even though HC&D and Precision had no direct

dealings. While Cashman might have adopted the Gauging Report

in Massachusetts during the negotiation of the Purchase

Agreement, I find the core events at the center of HC&D’s

complaint occurred in the Western District of Louisiana.9 Thus

9 I note that Patterson, Louisiana, the location of Precision’s

post office box; Morgan City, Louisiana, the location of Electra

Shipyard; and Amelia, Louisiana, the location of Cashman’s dock,

are within St. Mary’s Parish and thus the territory of the

Western District of Louisiana, Lafayette Division. Neither

Cashman nor Precision proposes an alternative venue in

Louisiana.

venue is proper in the Western District of Louisiana as to

Precision under § 1391(b)(2).

Finally, I observe § 1391(b)(3) acts as a catch-all, in

which if a particular judicial district cannot be identified

under the first two sections of § 1391, venue is deemed proper

in any district in which a defendant is subject to the court’s

personal jurisdiction. Although perhaps superfluous, I will

note that even if I had not determined venue in the Western

District of Louisiana to be proper pursuant to §§ 1391(b)(1) and

(2), § 1391(b)(3) would apply and venue would separately be

found appropriate in the Western District under that provision.

For these reasons, I find that the Western District of

Louisiana could act as an appropriate venue to hear this case as

to both defendants named by HC&D.

B. The Transfer Mechanism

Three statutes provide a federal district court the

discretion to transfer a civil case to another federal district

court: 28 U.S.C. § 1404(a), § 1406(a), and § 1631. At this

point, a further brief exploration of these three statutes may

be useful.

The transfer provision proposed by HC&D, 28 U.S.C.

§ 1404(a), states that “[f]or the convenience of parties and

witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division

where it might have been brought. . . .” 28 U.S.C. § 1404(a).

Although other circuits have explicitly broadened the

availability of § 1404(a)10 so that it would be available in such

a case as this, where personal jurisdiction over the defendant

to be transferred is lacking, I find the First Circuit has taken

the opposite approach and instead has restricted the use of §

1404(a), requiring the transferring district court to have

personal jurisdiction over the parties to be transferred.

Albion v. YMCA Camp Letts, 171 F.3d 1, 2 (1st Cir. 1999)

(“Section 1404(a) is a codification of the doctrine of forum non

conveniens. As the Supreme Court has stated, ‘the doctrine of

forum non conveniens can never apply if there is absence of

jurisdiction or mistake of venue.’ Given that [the plaintiff]

conceded the lack of personal jurisdiction over the defendant at

oral argument, transfer under § 1404(a) is clearly

inappropriate.”) (quoting Gulf Oil Corp. v. Gilbert., 330 U.S.

501, 504 (1947)); see also Ayasli v. Korkmaz, 559 F. Supp. 3d 1,

4 (D.N.H. 2020) (“[T]ransfer under § 1404(a) is clearly

10 See, e.g., United States v. Berkowitz, 328 F.2d 358, 361 (3d

Cir. 1964)(“The district court believed that it was without

power to transfer this case under § 1404(a) in the absence of

jurisdiction over the person of the defendant). But Goldlawr,

Inc. v. Heiman [369 U.S. 463 (1962)] conclusively settled that

question. It is true that Goldlawr involved an interpretation

of § 1406(a). Nevertheless, we think that its rationale applies

equally to § 1404(a), for these are companion sections, remedial

in nature, enacted at the same time, and both dealing with the

expeditious transfer of an action, from one district or division

to another.”).

inappropriate when the court lacks jurisdiction over the party

to be transferred.” (citation and quotations omitted)).

I read First Circuit caselaw as instructing use of §

1404(a) only when the transferor court has personal jurisdiction

over every party in the dispute. See TargetSmart Holdings, LLC

v. GHP Advisor, LLC, 366 F. Supp. 3d 195, 218-19 (D. Mass.

2019); Ferris v. Darrell, No. CV 18-10204-DPW, 2020 WL 4431763

at *10 n.20 (D. Mass. July 31, 2020) (“I interpret 28 U.S.C. §

1404(a) to allow transfer of a case only if the District of

Massachusetts has jurisdiction over the case in the first

instance. Because I conclude this court lacks personal

jurisdiction over [a co-defendant], transfer under § 1404(a) is

not available”) (internal citation omitted)). I acknowledge,

however, this might be a minority understanding of § 1404(a)

that other First Circuit colleagues of mine do not share. See

Thomas v. Spaulding, No. 19-11982-NMG, 2021 WL 1186042, at *2

(D. Mass. Mar. 30, 2021) (Gorton, J.) (transferring a case

pursuant to § 1404(a) after determining the District of

Massachusetts lacks personal jurisdiction over several of the

defendants).

The second potential transfer mechanism, 28 U.S.C.

§ 1406(a), reads: “[t]he district court of a district in which

is filed a case laying venue in the wrong division or district

shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could have

been brought.” 28 U.S.C. § 1406(a) (emphasis added). No party

in the present case alleges that venue in the District of

Massachusetts is improper. Certain interpretations of § 1406,

nevertheless, provide helpful guidance on the application of

this statute and other transfer provisions.

First, the Supreme Court has explicitly found that

§ 1406(a) may be used even when the district court in which a

case is originally filed lacks personal jurisdiction over the

defendant. Goldlawr, Inc., 369 U.S. at 465-66 (“Nothing in [the

§ 1406(a)] language indicates that the operation of the section

was intended to be limited to actions in which the transferring

court has personal jurisdiction over the defendants . . . The

language of § 1406(a) is amply broad enough to authorize the

transfer of cases, however wrong the plaintiff may have been in

filing his case as to venue, whether the court in which it was

filed had personal jurisdiction over the defendant or not.”).

Second, certain appellate courts have interpreted § 1406(a)

broadly in order to transfer cases that present any additional

obstacle to adjudication, including, but not limited to, a lack

of personal jurisdiction. Mayo Clinic v. Kaiser, 383 F.2d 653,

655 (8th Cir. 1967); Dubin v. United States, 380 F.2d 813, 815

(5th Cir. 1967) (“We conclude that a district is ‘wrong’ within

the meaning of § 1406 whenever there exists an ‘obstacle (to). .

. an expeditious and orderly adjudication’ on the merits.”)

A third mechanism by which jurisdictional deficiencies can

be cured is provided by 28 U.S.C. § 1631 which states that

“whenever a civil action is filed . . . and [the] court finds

that there is a want of jurisdiction, the court shall, if it is

in the interest of justice, transfer such action or appeal to

any other such court . . . in which the action or appeal could

have been brought at the time it was filed or noticed . . . .”

28 U.S.C. § 1631.

Both the First Circuit and Fifth Circuit have found that

§ 1631 is a transfer mechanism appropriate when a District Court

lacks personal jurisdiction over one of the parties. Fed. Home

Loan Bank of Bos. v. Moody’s Corp., 821 F.3d 102, 114 (1st Cir.

2016) (“we conclude that ‘want of jurisdiction’ encompasses both

personal and subject matter jurisdiction”), abrogated on other

grounds by Lightfoot v. Cendant Mortg. Corp., --- U.S. ---, 137

S. Ct. 553 (2017)); Franco v. Mabe Trucking Co., Inc., 3 F.4th

788, 793 (5th Cir. 2021) (“the plain text of § 1631 indicates

that it may apply when a district court finds that it lacks

subject-matter jurisdiction, personal jurisdiction, or both”).

At a December 15, 2022 motions hearing, I raised the

question of whether § 1404(a) was available as the transfer

mechanism and asked the parties to submit supplemental briefing

on the application of § 1631 to our current posture. [See Dkt.

No. 38] The parties thereupon filed supplemental briefing.

[See Dkt. Nos. 42, 43]

In its supplemental briefing, HC&D belatedly argued that in

addition to transfer pursuant to § 1404(a), “§ 1631 provides a

proper vehicle and straightforward path for this transfer if

[the Court] determines it does not have personal jurisdiction

over Precision.” [Dkt. No. 43 at 6]

C. Private and Public Transfer Interests

Typically, when determining whether transfer is in the

“interest of justice” under § 1404(a) I would evaluate both the

private factors11 and the public interest considerations

articulated by the Supreme Court in Piper Aircraft Co. v. Reyno,

454 U.S. 235, 241 n.6 (1981), to “decide whether, on balance, a

transfer would serve ‘the convenience of parties and witnesses’

and otherwise promote ‘the interest of justice.’” Atl.Marine,

571 U.S. at 62-63 & n.6 (quoting 28 U.S.C. § 1404(a)).

A balancing of public and private interests is inflected

here, however, by the presence of a presumptively valid12 forum-

11 Private party interests include, the “[1] relative ease of

access to sources of proof; [2] availability of compulsory

process for attendance of unwilling, and the cost of obtaining

attendance of willing, witnesses; [3] possibility of view of

premises, if view would be appropriate to the action; and [4]

all other practical problems that make trial of a case easy,

expeditious, and inexpensive.” Atlantic Marine, 571 U.S. at 62

n.6 (quoting Piper Aircraft, 454 U.S. at 241 n.6).

12 In both the First Circuit and the Fifth Circuit, forum-

selection clause directly between Cashman and HC&D, which is

seen to “‘represent[] th[ose] parties’ agreement as to the most

proper forum.’”13 Atl. Marine, 571 U.S. at 63 (quoting Stewart

Org., Inc. v. Ricoh Corp. 487 U.S. 22, 31 (1988)). Particularly

when there is a valid forum-selection clause between the parties

to the dispute, I am directed no longer to consider private

selection clauses are prima facie valid and should be enforced

barring the following: (1) the clause was the product of fraud

or overreaching; (2) enforcement would be unreasonable or

unjust; (3) proceedings in the selected forum will so difficult

and inconvenient that the party seeking to escape enforcement of

the forum-selection clause will be deprived of his day in court;

and (4) enforcement would contravene a strong public policy of

the forum in which suit is brought. Rafael Rodriguez Barril,

Inc. v. Conbraco Indus., Inc., 619 F.3d 90, 93 (1st Cir. 2010)

(citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 18

(1972)); see also Haynsworth v. The Corporation, 121 F.3d 956,

963 (5th Cir. 1997). The Fifth Circuit adds to the

“unreasonableness” inquiry whether the “fundamental unfairness

of the chosen law will deprive the plaintiff of a remedy,”

Haynsworth, 121 F.3d at 963, a factor which I find to fit within

the second prong articulated by the First Circuit. I note that

HC&D appears to be arguing primarily that the forum-selection

clause should be set aside in the interest of justice, not that

the clause was the product of fraud or overreaching. [Dkt. No.

26 at 7-9; Dkt. No. 33 at 9-10]

13 The Supreme Court has listed three ways in which the

traditional transfer analysis changes with the presence of a

valid forum-selection clause. “First, the plaintiff’s choice of

forum merits no weight. Rather, as the party defying the forum-

selection clause, the plaintiff bears the burden of establishing

that transfer to the forum for which the parties bargained is

unwarranted.” Atl. Marine, 571 U.S. at 63. “Second, a court

evaluating a defendant’s § 1404(a) motion to transfer based on a

forum-selection clause should not consider arguments about the

parties’ private interests.” Id. at 64. “Third, when a party

bound by a forum-selection clause flouts its contractual

obligation and files suit in a different forum, a § 1404(a)

transfer of venue will not carry with it the original venue’s

choice-of-law rules . . . .” Id.

party interest but rather to base my decision on the public

interest factors. These public interest factors include, “[1]

the administrative difficulties flowing from court congestion;

[2] the local interest in having localized controversies decided

at home; [and] [3] the interest in having the trial of a

diversity case in a forum that is at home with the law.” Atl.

Marine, 571 U.S. at 62 n.6 (quoting Piper Aircraft, 454 U.S. at

241 n.6).14

The Supreme Court’s Atlantic Marine holding provides

important guidance on the weight that should be placed on

contractually agreed-upon forum-selection clauses. “When the

parties have agreed to a valid forum-selection clause,” that

predetermined forum should be honored and “only under

extraordinary circumstances unrelated to the convenience of the

parties” should the litigation occur elsewhere. Atl. Marine,

571 U.S. at 62. The Court reasoned that the “‘enforcement of

valid forum-selection clauses, bargained for by the parties,

protects their legitimate expectations and furthers vital

interests of the justice system.’” Id. (quoting Stewart, 487

U.S. at 33 (Kennedy, J., concurring)). It is for these reasons

14 The other Piper Aircraft public interest factors, not listed

in Atlantic Marine, are: “[4] the avoidance of unnecessary

problems in conflict of laws, or in the application of foreign

law; and [5] the unfairness of burdening citizens in an

unrelated forum with jury duty.” Piper Aircraft, 454 U.S. at 241

n.6.

that the party seeking to disregard the forum-selection clause

bears the burden of establishing why it should not be enforced.

Id. at 63.

Atlantic Marine instructs me to put significant weight on

the forum-selection clause, recognizing the existence of a

forum-selection clause as an almost dispositive consideration in

determining the appropriate venue. 571 U.S. at 64 (“Because

[the public-interest factors] will rarely defeat a transfer

motion, the practical result is that forum-selection clauses

should control except in unusual cases.”); see also Astro-Med,

591 F.3d at 12-13 (the forum-selection clause is a “significant

factor that figures centrally” when evaluating whether to

transfer a case to another district).

Some courts, however, have cautioned that “the presence of

a forum-selection clause should not receive dispositive weight,”

although the relevance of such caution is up for debate in the

wake of Atlantic Marine. Campanini v. Studsvik, Inc., Civil

Action No. 08-5910, 2009 WL 926975, at *6 (E.D. Pa. April 6,

2009) (Schiller, J.) (citation and quotations omitted); see also

Budget Blinds, Inc. v. Mahmood, No. CV10-0552-PSG, 2010 WL

3001629, at *5 (C.D. Cal. July 29, 2010) (Gutierrez, J.) (“The

presence of a forum-selection clause, however, is not

dispositive on a motion to transfer, and the other § 1404(a)

factors must be considered alongside the forum selection

clause.”).

D. Transfer and the Forum-Selection Clause

Having reviewed the issues of personal jurisdiction and

venue, and explored the available transfer mechanisms, I now

turn to the central issue with respect to the motions I

confronted — whether to transfer all or a portion of this case

to the Western District of Louisiana, notwithstanding the forum-

selection clause in the Purchase Agreement between HC&D and

Cashman, and if so, under which transfer statute.15

Since Atlantic Marine, various courts have considered its

impact in matters where some, but not all, parties have entered

into an agreement governed by a forum selection clause. See,

e.g., Amyndas Pharms., S.A. v. Zealand Pharma A/S, 48 F.4th 18,

35 (1st Cir. 2022) (Selya, J.); In re Ryze Claims Sols., LLC,

968 F.3d 701, 711–12 (7th Cir. 2020) (Ripple, J.); In re Rolls

15 The forum-selection clause plainly applies to HC&D’s claims

against Cashman. HC&D — in a short, undeveloped footnote in its

memorandum supporting its motion to transfer — nevertheless

elliptically suggests that the forum-selection clause does not

apply because “its claims against Cashman sound in tort and the

Barge Contract is not implicated in determining questions of

Cashman’s fraud vis a vis the sale of the Barge.” I find HC&D

did not develop this argument sufficiently for me to consider it

on the merits under these circumstances. See Rivera-Gomez v. de

Castro, 843 F.2d 631, 635 (1st Cir. 1988) (“Judges are not

expected to be mindreaders. Consequently, a litigant has an

obligation to spell out its arguments squarely and distinctly,

or else forever hold its peace.” (citation and quotations

omitted)).

Royce Corp., 775 F.3d 671, 683 (5th Cir. 2014) (Higginbotham,

J.); In re: Howmedica Osteonics Corp, 867 F.3d 390, 397 (3d Cir.

2017) (Krause, J.). These cases, although not directly

analogous, provide helpful perspective with respect to the

matter now before me.

In Amyndas Pharmaceuticals, the First Circuit held that,

despite claims against certain defendants continuing in the

District of Massachusetts, claims against another defendant had

to be dismissed and litigated in Denmark pursuant to an

agreement containing a forum selection clause between two

parties. See 48 F.4th at 33–36. The Court of Appeals rejected

plaintiff’s argument “that the public interest in judicial

economy warrants keeping all parties in the district court

action because it would be inefficient and, thus, unreasonable

to require [plaintiff] to litigate in Denmark while allowing its

litigation against [other defendants] . . . to proceed in the

district court.” Id. at 35. Citing “Atlantic Marine's

injunction that ‘forum-selection clauses should control except

in unusual cases,’” id. (quoting Atl. Marine, 571 U.S. at 64),

the First Circuit discerned “no principled basis” for keeping

the entirety of the action in Massachusetts district court, id.

Other Circuits have developed frameworks for addressing the

competing interests at play when only some parties in a case

have entered into an agreement governed by a forum selection

clause. See In re: Howmedica Osteonics Corp, 867 F.3d at 404–

06; In re Rolls Royce Corp., 775 F.3d at 681.

The Third Circuit’s analysis in In re: Howmedica Osteonics

Corp is instructive. See 867 F.3d at 404–06. There, the Third

Circuit issued a writ of mandamus in response to a district

court’s decision to transfer a case in its entirety, despite a

forum-selection clause applicable to certain defendants that

would have kept part of the case in its District. See id. at

397. After concluding that Atlantic Marine provided guidance

but could not answer the central question of transfer in a case

involving an only partially applicable forum selection clause,

the court adopted a four-step analysis. 16 See id.

First, the Third Circuit directs judges to “assume[] that

Atlantic Marine applies to parties who agreed to forum-selection

clauses,” id. at 404, such that claims covered by the forum-

selection clause should be litigated in the contracted-to venue.

Next, a judge must “perform[] an independent analysis of private

and public interests relevant to non-contracting parties,” id.,

which, under these circumstances, requires me to consider the

factors I have outlined supra subsection III.C as to Precision.

If after Steps One and Two the judge is pointed to the same

forum, the analysis may stop; however, “if the Step One and Step

16 The Third Circuit’s analysis builds upon that of the Fifth

Circuit in In re Rolls Royce Corp., 775 F.3d 671 (5th Cir.

2014).

Two analyses point different ways, then the court considers

severance.” Id. The Third Circuit directs that “[i]n some

cases, severance clearly will be warranted . . . to cure

personal jurisdiction.” Id. Under those circumstances, “the

court should sever and transfer claims as appropriate to remedy

jurisdictional . . . defects.” Id. In other cases, however,

severance may be “clearly disallowed, such as when a party is

indispensable under Federal Rule of Civil Procedure 19(b).” Id.

Because severance is not available in that circumstance, “the

case must continue with all parties present in a forum where

jurisdiction and venue are proper as to the indispensable

party.” Id. Finally, severance may be “neither clearly

warranted nor clearly disallowed and is therefore committed to

the court's discretion.” Id. at 405.

If, after Step Three, a specific outcome is not required, a

court must exercise its considerable discretion, measuring its

decision against two key sets of interests. Id. This entails

consideration of efficiency interests in avoiding duplicative

litigation “as well as any other public interests that may weigh

against enforcing a forum-selection clause,” id., against “the

non-contracting parties’ private interests and any prejudice

that a particular transfer decision would cause with respect to

those interests,” id. “Only if,” after weighing the various

interests, the court determines “that the strong public interest

in upholding the contracting parties’ settled expectations is

‘overwhelmingly’ outweighed by the countervailing interests” may

the court decline to enforce a valid forum-selection clause.

Id. (citation omitted).

I read Amyndas Pharmaceuticals to represent the First

Circuit’s post-Atlantic Marine view that forum-selection clauses

should control in most circumstances. See Amyndas Pharms.,

S.A., 48 F.4th at 35. Such a view aligns with the Third

Circuit’s analysis in In re: Howmedica Osteonics Corp and

without more specific direction from the First Circuit, I will

refract the asserted facts through the Third Circuit’s test to

guide my analysis.17

17 I note one area where First Circuit caselaw appears not to

align fully with the Third Circuit test. The Third Circuit

directs that in the early steps of my analysis I “should suspend

concerns about . . . threshold issues such as . . . personal

jurisdiction,” because I “ha[ve] discretion to address

convenience-based venue issues first.” In re: Howmedica

Osteonics Corp, 867 F.3d at 404 n.8. Such an approach suggests

to me that the Third Circuit would permit transfer under §

1404(a) even under circumstances where I do not have personal

jurisdiction over the transferred party. As I explained supra

Section III.C., I do not view § 1404(a) as providing that

permission. See, e.g., TargetSmart Holdings, LLC, 366 F. Supp.

3d at 217 (D. Mass. 2019) (“I read 28 U.S.C. § 1404(a) to allow

transfer of a case only if the District of Massachusetts has

jurisdiction over the case in the first instance.”). However,

the three transfer statutes available to me use similar language

and appear to advance similar purposes — efficiency,

convenience, and, most critically, the “interest[s] of justice.”

Under these circumstances and where there is little First

Circuit precedent to guide me, I find that the analysis outlined

by the Third Circuit also applies to the other transfer statutes

possibly available in the matter now before me, §§ 1406(a) and

1631.

1. Forum Selection Clause in Agreement Between HC&D and

Cashman

At the first step, I assume that claims governed by the

forum-selection clause between Cashman and HC&D should be

litigated in Massachusetts. See In re: Howmedica Osteonics

Corp, 867 F.3d at 404; Dkt. No. 4-1 ¶ 14. No such clause

applies to claims between Precision and HC&D.

2. Private and Public Interests Relevant to Precision

I next consider Precision’s private and public interests.

See In re: Howmedica Osteonics Corp, 867 F.3d at 408. Briefly

stated, Precision is organized under the laws of Louisiana and

has its headquarters in Louisiana.18 These circumstances

18 I will not explore fully — because the parties have not

invited me to do so — whether registering to do business in

Louisiana might be relevant in this case. I do note the

relevance of registration is a deeply divisive issue as to which

the Supreme Court spoke with multiple voices at the end of its

term in June after the parties briefed this case to me. Writing

for the Court, Justice Gorsuch held that a Pennsylvania

registration statute that gave rise to personal jurisdiction

over out-of-state corporations would not violate the Due Process

clause of the United States Constitution. Mallory v. Norfolk

Southern Railway Co., 143 S. Ct. 2028 (2023). Justice Jackson

concurred on grounds joined by Justices Thomas and Sotomayor.

Id. at 2045. Justice Alito, who concurred in part and concurred

in the judgment, observed in his separate opinion that “there is

a good prospect that Pennsylvania’s assertion of jurisdiction

over an out-of-state company in a suit by an out-of-state

plaintiff on claims unrelated to Pennsylvania violates the

Commerce Clause,” id. at *2053, although the issue was not

adequately raised in the case. Justice Barrett, writing in

dissent and joined by Chief Justice Roberts, Justice Kagan and

Justice Kavanaugh, contended that as a result of the Court’s

decision “[b]y relabeling their long-arm statute, states may now

manufacture ‘consent’ to personal jurisdiction.” Id. at *2055.

The diverse voices make clear that more is likely to be heard in

implicate interests — whether characterized as private or public

— that weigh in favor of Louisiana as to claims against

Precision.

3. Severance of Precision’s Claims

Because there is a dispute regarding the proper court to

resolve HC&D’s claims separately stated in Counts respectively

against Cashman and Precision, I turn to whether severance is

appropriate under the circumstances. In doing so, I “consider

threshold issues such as the presence of indispensable parties

and defects in . . . personal jurisdiction.” In re: Howmedica

Osteonics Corp, 867 F.3d at 408.

This court does not have personal jurisdiction over

Precision in this case. Such a “defect[]” cuts in favor of

severing claims. In re: Howmedica Osteonics Corp, 867 F.3d at

408.

I do not find Precision to be an indispensable party for

litigation in this district such that the case should either be

dismissed or transferred in its entirety to Louisiana, despite

the forum-selection clause. Id. at 408. To qualify as

“indispensable,” “a party must also be a ‘required’ party under

Rule 19(a).” In re: Howmedica Osteonics Corp, 867 F.3d at 408.

A party is “required” if, inter alia, I “cannot ‘accord complete

the future as the Supreme Court itself further explores what it

means to consent to jurisdiction.

relief among existing parties’ without” their presence.

Delgado-Caraballo v. Hosp. Pavía Hato Rey, Inc., 889 F.3d 30, 37

(1st Cir. 2018) (quoting FED. R. CIV. P. 19(a)(1)(A)). Complete

relief regarding the claims against Cashman can, if proven, be

provided in this district without Precision’s presence as a

party.

HC&D’s Amended Complaint includes eight counts, but none of

these counts are jointly alleged as to both Defendants. Factual

overlap among counts does not mandate that the various claims be

litigated in the same district. Cf. Covidien LP v. Esch, 264 F.

Supp. 3d 325, 328 (D. Mass. 2017) (“Although [an entity] might

be affected by the outcome of this case, it does not follow that

it is a ‘required’ party.”). FED. R. CIV. P. 19 “calls for courts

to make pragmatic, practical judgments that are heavily

influenced by the facts of each case.” Bacardí Int'l Ltd. v. V.

Suárez & Co., 719 F.3d 1, 9 (1st Cir. 2013). As a pragmatic

approach in this case, the facts point me toward severing

Precision’s claims and transferring them to Louisiana.

4. Efficiency and Precision’s Private Interests

I finally turn to the appropriate outcome, which is “guided

by considerations of efficiency, the non-contracting parties’

[here, Precision’s] private interests, and Atlantic Marine’s

directive that ‘courts should not ... disrupt the parties’

settled expectations’ embodied in forum-selection clauses except

when other factors ‘overwhelmingly’ weigh against enforcing the

clauses.” In re: Howmedica Osteonics Corp, 867 F.3d at 409

(alteration in original) (quoting Atl. Marine, 134 S. Ct. at

583).

The lack of personal jurisdiction in Massachusetts as to

Precision mandates transfer or dismissal of at least the claims

as to Precision. And under Atlantic Marine, the forum-selection

clause between HC&D and Cashman essentially mandates litigation

of such claims in Massachusetts, because I cannot discern any

circumstances weighing “overwhelmingly . . . against enforcing

the clause.” Id. (citation and quotations omitted). To the

extent the severance of HC&D’s claims may “create a risk of

duplicative litigation,” id., such a risk may be mitigated or

eliminated via “procedural mechanisms . . . such as common pre-

trial procedures, video depositions, stipulations, etc.,” In re

Rolls Royce Corp., 775 F.3d at 681 (explaining that these

“procedural mechanisms” may “echo those used by judges in cases

managed pursuant to multidistrict litigation statutes”).19

5. Conclusion

I find that the severance and transfer of all the claims

19 In this connection, once the transferred case against

Precision has been drawn to a presiding judge in the Western

District of Louisiana, I will consult with that judge whether

particular parallel procedural mechanisms and parallel

scheduling orders seem appropriate as the two severed cases

proceed in their respective jurisdictions.

HC&D makes against Precision “satisfies Atlantic Marine’s

prescription that forum-selection clauses should be enforced . .

. , accounts for private and public interests relevant to non-

contracting parties, resolves the personal jurisdiction defect

as to [Precision] in [Massachusetts], and promotes efficient

resolution of [HC&D]'s claims without unduly prejudicing non-

contracting parties’ private interests.” In re: Howmedica

Osteonics Corp, 867 F.3d at 411.

I pause briefly to address Precision’s contention that

dismissal, rather than transfer, is appropriate here. I

disagree. Section 1631, the relevant transfer statute for

circumstances like this where I lack personal jurisdiction, but

not venue, over certain claims, “support[s] transfer over

dismissal in the interests of justice and to promote judicial

economy.” Tomas v. Buckley, No. 19-CV-12079-ADB, 2020 WL

2616304, at *5 (D. Mass. May 22, 2020) (Burroughs, J.). The

legislative history of § 1631 presumes transfer, rather than

dismissal, “because such a presumption furthers the salutary

policy favoring the resolution of cases on the merits.” Britell

v. United States, 318 F.3d 70, 74 (1st Cir. 2003) (Selya, J.).

In the matter now before me, where transfer is feasible, it is

preferred to dismissal to ensure HC&D’s claims are fully and

fairly litigated without further interruption.

IV. CONCLUSION

For the foregoing reasons,

I conclude that all HC&D’s claims against Precision must be

severed and transferred to the Western District of Louisiana.

Accordingly, I GRANT in part and DENY in part HC&D’s motion

[Dkt. No. 25] and transfer a portion of this matter — the claims

against Precision — to the Western District of Louisiana,

pursuant to 28 U.S.C. § 1631. Having determined to transfer

HC&D’s claims against Precision, I decline to address the merits

of Precision’s motion to dismiss. Resolution of the merits of

that motion is reserved for the transferee district judge in the

Western District of Louisiana.20

I DENY, without prejudice, Cashman’s motion to dismiss for

failure to state a claim [Dkt. No. 9], which concerns the

portion of this case that will remain in this District. The

parties shall meet and confer with a view toward preparing and

submitting on or before October 13, 2023, a proposed Scheduling

Plan for steps to resolve this portion of the case. The

Scheduling Plan may include a proposal for renewal and/or

recalibration of a motion to dismiss I herewith DENY, reframed

20 I employed this type of reservation in a similar situation to

provide the transferee judge with a “clean slate” on which to

create appropriate scheduling orders. Ferris, 2020 WL 4431763.

in light of this Memorandum and Order and the current state of

the underlying dispute among the parties to this case as filed.

/s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

United States District Judge