Impala Warehousing (US) v. Kostmayer Construction

Civil Procedure

New York Law Journal


Judge Harold Baer

Impala contracted for Louisiana-based Kostmayer's transformation of a Louisiana marine terminal. Their contract's forum selection clause called for actions to be brought within the Southern District or state courts in Manhattan. Kostmayer's July 5, 2012, Louisiana state court breach action was removed to Louisiana's Eastern District. Impala's New York state suit, identical to its counterclaims in the Louisiana case, was removed to the Southern District on Sept. 7. The action in Louisiana's Eastern District was filed first. Both cases arose from the same contract. Finding neither the "balance of convenience" nor "special circumstances" exception to the first-filed rule applicable, Southern District dismissed suit in favor of the Louisiana federal case. Both parties have places of business in Louisiana, where the subject matter of their contract dispute is located. Thus, all relevant witnesses, documents and facts were located in Louisiana. Distinguishing Nat'l Union Fire Ins. of Pittsburgh v. Las Vegas Prof'l Football, Southern District found the existence of an exclusive forum selection clause alone insufficient to label Kostmayer's first-filed action in Louisiana the result of the kind of forum shopping that would constitute a special circumstance.

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