Moore v. Katin-Borland

Background

Stephanie Moore sued as personal representative for the estate of Booker Thomas Moore in a legal-malpractice action. The defendants were Evan Katin-Borland, Anthony J. Tarricone, Kreindler & Kreindler, LLP, Konstantine William Kyros, and Kyros Law Offices. The opinion describes the defendants as lawyers and law firms from New York and Massachusetts.

Moore’s late husband had played in the National Football League and was diagnosed after his death with chronic traumatic encephalopathy, a brain injury associated with football. Moore retained the defendants to pursue claims for his estate. The retainer agreement stated that disputes arising from the agreement or the services provided under it “shall be venued in New York and governed by New York law.”

The defendants filed a claim related to the NFL concussion settlement, but they missed an April 22, 2015 deadline for people seeking compensation based on a post-mortem diagnosis of chronic traumatic encephalopathy. The resulting loss of scheduled compensation was alleged to exceed $2 million. The parties disputed why the deadline was missed: Moore attributed it to negligence, while the defendants said they could not find an expert to support the diagnosis before the deadline.

Motion and governing standards

The defendants moved to dismiss for lack of personal jurisdiction, meaning they argued that the Michigan federal court lacked authority over them. Alternatively, they sought transfer to the Southern District of New York under the forum-selection clause in the retainer agreement.

The court explained that transfer, rather than dismissal, is the preferred remedy when a court lacks personal jurisdiction if the case could have been brought in another federal court and transfer serves the interests of justice. It also explained that federal law governs the enforceability of a forum-selection clause and that a valid clause ordinarily receives controlling weight in a transfer analysis.

Forum-selection clause

Moore did not dispute that the clause existed or that it was clear and mandatory. She argued that it was unenforceable because it was unconscionable, that the Southern District of New York could not handle the case effectively, and that litigating there would be unjustly inconvenient.

The court rejected those arguments. Under the standards it applied, Moore had to show both procedural and substantive unconscionability. Procedural unconscionability concerns factors such as bargaining power, economic strength, alternative sources of representation, and whether the challenged term was negotiable. The court found that Moore had less bargaining power than the defendant law firms, but it concluded that she had not shown that they were her only available lawyers. The court also found that choosing New York as the forum was not so unfair or extreme as to be substantively unconscionable.

The court further concluded that the Southern District of New York was an effective and fair forum. It found that the statistics Moore cited about that district’s backlog did not establish that the case could not be handled effectively. The court also held that Moore had not met the heavy burden of showing that enforcement would be unjust or unreasonable merely because she would face inconvenience and travel costs.

Public-interest factors

The court considered public-interest factors including court congestion, each state’s local interest, the forum’s familiarity with the governing law, conflicts-of-law concerns, and the burden of jury service. It concluded that those factors did not present an exceptional reason to disregard the parties’ agreement. Michigan had an interest in providing remedies for its citizens, while New York had an interest in regulating its licensed attorneys. The choice-of-law provision also weakened Moore’s argument that Michigan was the better forum for applying the relevant law.

Disposition

Judge David M. Lawson ruled that the forum-selection clause was valid and enforceable and required transfer to the federal court in the Southern District of New York. The court ordered that the motion to dismiss or transfer venue was granted in part and denied in part, ordered the clerk to transfer the case, and stated that the motion was denied in all other respects. The opinion did not decide the underlying legal-malpractice claim.