By Jeff Birren, Senior Writer
Introduction
Booker Moore played for the Buffalo Bills in the 1980s. He died in 2009. A post-mortem examination revealed that he had chronic traumatic encephalopathy (CTE). Stephanie Moore, the widow, and Personal Representative of Booker Moore, contacted a law firm in Massachusetts, and it connected her with a New York firm. The two firms sent her a retainer agreement that she signed but did not read. They ultimately missed a deadline for filing a claim, and Ms. Moore filed a malpractice case against the two firms in her home state of Michigan. Her failure to read the retainer agreement then came back to bite her because it had a forum selection clause for New York. Consequently, the District Court in Michigan transferred the case to the Southern District of New York (Moore v. Katin-Morland, E. D. Mich., Case No. 20-10277, Opinion, LEXIS 168069, (9-14-20)).
Booker Moore
Moore played high school football in Michigan, and then college ball at Penn State from 1977-1980. In 1981 he was a first-round draft choice by the Buffalo Bills. Shortly afterwards he was diagnosed with Guillain-Barre syndrome. That leads to rapid onset muscle weakness and Moore played sparingly as a rookie. He started 11 games in 1982 but his production diminished, and he retired after the 1985 season. Moore returned to Michigan and in 1986 became a Genesee County sheriff’s deputy. He died from a heart attack in 2009. The Genesee County Medical Examiner preserved tissue slides in order to later determine whether he had football-related brain injuries (Id. at 3).
The First Case
Ms. Moore saw information on the Kryos Law Offices’ website concerning the on-going CTE litigation. She contacted Kryos and it put her in touch with Kreindler & Kreindler, LLP, a personal injury firm in New York (“Kreindler”). Ms. Moore “never spoke in person with the attorneys from either firm, nor did she have a personal telephone interview” (Id.). Kreindler sent her a retainer agreement that she signed and mailed back in June 2012. The firm “promised to ‘prosecute claims on behalf of [her] late husband’s estate for wrongful death, and traumatic brain injuries that he sustained from playing in the NFL.’” The agreement included a forum selection clause that stated: “It is agreed that any disputes arising under this agreement or the services rendered here under [sic] shall be venued [sic] in New York and governed by New York law” (Id.).
Neither firm had a Michigan office “and none of the individual defendants ever litigated” there. Kreindler “hired a Michigan probate attorney” to help Ms. Moore open a probate estate “so she could pursue a claim on behalf of her late husband” (Id.). In October 2012 Kreindler “requested from the Genesee County Medical Examiner a list of all records, specimens, and slides that may contain Booker Moore’s brain tissue.” The Medical Examiner “reported” that it had “11 paraffin blocks that could be used to make slides.” The Kreindler attorney “acknowledged the existence of the paraffin blocks…but stated that his firm preferred to have the blocks preserved instead and that he would request the slides later” (Id.).
Kreindler filed Ms. Moore’s lawsuit one month later in the Eastern District of Pennsylvania and it was eventually included in the national class action case. The class action was settled in 2014 and the settlement was amended in February 2015. It required “individuals asserting a claim based on a post-mortem diagnosis of CTE” to “obtain such a diagnosis” prior to April 22, 2015 (Id.). Unfortunately, the “defendants missed the April 22, 2015 deadline, resulting in the loss of a scheduled compensation from the NFL concussion settlement in excess of $2 million” (Id.)
Naturally, the parties disagreed as to why the deadline was missed. Ms. Moore claimed “the defendants were simply negligent. Between November 5, 2012 and June 23, 2015, the defendants never communicated with the Genesee County Medical Examiner” nor did they discuss with Ms. Moore “the April 22 deadline, collection of tissue samples or contact with medical experts.” That did not happen until June 23, 2015 when Kreindler requested the Medical Examiner to “send 11 slides” to the medical expert “whom the defendants retained as an expert witness” (Id.).
The defendants had a very different story. It was not until after the April 22, 2015 deadline that “they could find an expert who would support” the CTE diagnosis. Once that happened, they filed the untimely claim on Ms. Moore’s behalf (Id. at 3/4). “Predictably, the initial claim and the subsequent appeal failed due to the timing of the post-mortem CTE diagnosis” (Id. at 4).
The Second Case
The missed deadline led to “this legal malpractice action on February 4, 2020, invoking this Court’s diversity jurisdiction” (Id.). The defendants responded with a motion to dismiss for want of personal jurisdiction or alternatively, to transfer the case based on the forum selection clause (Id.). The Court began by stating that although dismissal “may be appropriate” when the court does not have personal jurisdiction over the defendant, the “preferred” remedy is to “transfer the action” to a court that has jurisdiction. The forum selection clause here “preempts the plaintiff’s venue privilege.” A court evaluating such a clause “must focus its analysis solely on the public interest factors” but those factors “will rarely defeat a transfer motion.” Federal law “requires that a [valid] forum-selection clause ‘must be given controlling weight in all but the most exceptional cases’’’ (Id.).
Ms. Moore did not dispute the existence of the forum selection clause nor that it was clear and mandatory. Rather, she argued “that the forum selection clause is unenforceable and that the public interest factors” overrode it (Id. at 5). It was “unenforceable” because “she had no bargaining power compared to the defendants, who are sophisticated attorneys, and that they made no effort to balance the inequitable bargaining positions by personal contact or meaningful explanation.” She was “never advised to consult independent counsel” nor did she “negotiate a single term in the boilerplate agreement” (Id.).
The Court agreed that her bargaining position “pales in comparison” to the two law firms but “they were not the only attorneys available to take her case.” Moore may have believed that they were the firms that she “needed to hire to join the case” but “she offers no proof that they were actually the only attorneys handling cases related to the NFL settlement.” An “internet search would have revealed alternative ‘sources of supply’ for attorneys capable of handling Moore’s claim.” The Court also had as an exhibit a letter from a Texas law form “offering to represent Mr. Moore’s estate in the NFL concussion litigation. That fact severely undercuts Moore’s argument” (Id.). Consequently, Ms. Moore failed to show that the defendants “had the sort of monopolistic power” that had been required in an earlier case in that District.
Ms. Moore then asserted that the clause was “substantively unreasonable because the contract terms unreasonably favor the defendants.” However, “Michigan courts have made clear that a contract is not unconscionable “simply because it is foolish for one party and very advantageous to the other.” To be unconscionable the inequity must be “so extreme as to shock the conscience” (Id. at 6). Such a clause “inevitably will inconvenience one side or the other” and Ms. Moore failed to show that litigating in New York “shocks the conscience” nor did she cite “any authority on that point” (Id.).
Her next argument was that the clause should be set aside because New York federal court “has a considerable backlog of civil cases” and cited a metric that “states that 1,084 cases were pending more than three years in that district compared to 281 in this district.” The Court noted that the cited numbers “contribute only to the most superficial analysis” and “even if Moore’s case might take longer to prosecute, she would enjoy the same procedural and substantive rights afforded to her by this Court” (Id.).
The Court determined that she failed to show that enforcement of the clause “would be so inconvenient such that its enforcement would be unjust or unreasonable.” That requires “more than just inconvenience.” Such a clause is not unreasonable “simply because it appears in a non-negotiated consumer product” (Id.). Ms. Moore faced a “heavy burden.”
She argued that “nearly every relevant witness in her case is Michigan-based,” that “she is a widowed pensioner of modest financial means and cannot come to New York to pursue her case” while the defendants are “sophisticated attorneys and firms capable of litigating in Michigan.” While those “observations” are “undoubtedly true,” that does “not demonstrate that Moore was exploited or treated unfairly.” She may have signed the agreement without consultation or understanding it, but that does not mean that “she was tricked of forced into consenting to the forum selection clause.” She “could have followed up with the law firm” but she did not and “voluntarily signed” the agreement. The Court cited a Supreme Court case that “found that a forum selection clause was reasonable and enforceable because there were legitimate business reasons of the defendant to establish a specific forum for adjudicating its disputes and because the forum was not a ‘remote alien forum’” as it was “the cruise line’s principal place of business” (Id., citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95 (1991)).
Public Interest Factors
The Court referenced another Supreme Court decision that “recognized, in a rare case, the public interest factors could derail a forum selection clause” (Id. at 7, Atl. Marine Constr. Co., v. United States Dist. Ct., 571 U.S. 49, 63 (2013)). Those factors include “administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign laws, and the unfairness of burdening citizens in an unrelated forum with jury duty” (Id.).
Those factors did “not override the forum selection clause here.” The “relative congestion” in New York courts “plays a minor role in the assessment” and it “does not furnish an ‘exceptional’ reason for overriding the parties’ agreement” and neither state had a stronger interest in the case than the other state. There was no concern about “burdening citizens in an unrelated forum with jury duty” and consequently, the “dispute does not constitute one of the ‘most exceptional cases’ for which the Court should ignore the parties’ valid form selection clause.”
The Court did not dismiss the case because “transferring the case” is the “preferred remedy.” The forum selection clause was “valid and enforceable, and it requires that the case be transferred to the federal court in the Southern District of New York” (Id.).
Autumn in New York
However, the case entered the New York District Court on September 23, 2020 and the parties are now litigating there. So apparently her representation that she could not afford to litigate there was not the whole truth. On October 22, 2020 they stipulated that Ms. Moore would have until October 30, 2020 to file an Amended Complaint and the defendants could respond by November 20, 2020 to respond (Moore v. Katin-Morland, U.S. District Court, Southern District of N.Y., Case No. 1:20-cv-07558-GHW, Stipulation and Order, Doc. #41 (10-23-20). The case was assigned to Judge Gregory H. Woods.
The next day Judge Woods issued a Civil Case Management Plan and Scheduling Order. He stated that the initial request for production of documents and interrogatories should be served by November 2, 2020, set March 19, 2021 as the discovery cut off including depositions, set expert discovery cut off and a deadline for summary judgment motions (Doc. # 43 (10-23-20)). That same day, Judge Woods ordered the parties to appear before a Magistrate Judge for of settlement discussions (Doc. #42 (10-12-20)).
The First Amended Complaint was filed on October 28, 2020. It is 17-pages long and has a claim for breach of professional liability and for breach of fiduciary duty (First Amended Complaint, (“FAC”), Doc. 45 (10-28-20)). Page 17 repeats its demand for a jury trial.
According to the FAC, the defendants “did not disclose to Plaintiffs the NFL Concussion Settlement Notice of Denial until October 9, 2018, weeks after they had received the Denial on or around September 19, 2018” (Id. at 8). Ms. Moore also agreed to dismiss without prejudice the Kyros Law Firm and its attorney (Doc. #44 (10-28-20)). Kreindler’s response is now due by November 20, 2020.
Conclusion
The law firms’ insurance carriers could cut losses by settling, and Ms. Moore might be better served to take something far less than the $2M that the lawsuit seeks due to the statute of limitations. Undoubtedly Ms. Moore feels that the result was unjust, starting with the very unequal amount of sophistication and bargaining power between the parties.
Forum selection clauses can lead to harsh results, but the Michigan District Court did not create the law. Furthermore, parties that fail to read contracts before signing can expect to find all sorts of things lurking inside that they did not contemplate. It may not occur to the average person to seek a second legal opinion before signing a contract with a law firm, but reality discovered after the fact can be very surprising or even harsh, as this case demonstrates. When it comes to contracts, parties should say what they mean and mean what they sign.
