IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30557

AL COPELAND INVESTMENTS, L.L.C.; DIVERSIFIED FOODS & 

SEASONINGS, L.L.C., 

 Plaintiffs - Appellants

v.

FIRST SPECIALTY INSURANCE CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Al Copeland Investments, L.L.C. and its affiliated company, Diversified 

Foods & Seasonings, L.L.C., appeal dismissal based on forum non conveniens. 

The district court ruled that that parties’ insurance policy contained an 

enforceable forum-selection clause requiring litigation in New York state court. 

We affirm.

I.

Al Copeland Investments, L.L.C. and its affiliated company, Diversified 

Foods & Seasonings, L.L.C., (collectively, “Al Copeland”), own and operate a 

food manufacturing facility in Louisiana. In October and December 2015, Al 

Copeland’s facility suffered property damage. As a result, Al Copeland

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2018

Lyle W. Cayce

Clerk

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submitted a reimbursement claim under an insurance policy it held with 

Appellee First Specialty Insurance Corporation, which First Specialty denied.

Al Copeland sued in the Eastern District of Louisiana to recover the 

damages and costs incurred as a result of the property damage, and First 

Specialty moved to dismiss arguing that the policy’s forum-selection clause 

requires litigation in New York state court. The policy provides:

Applicable Law; Court Jurisdiction

The laws of the State of New York, without regard to any conflict 

of laws rules that would cause the application of the laws of any 

other jurisdiction, shall govern the construction, effect, and 

interpretation of this insurance agreement.

The parties irrevocably submit to the exclusive jurisdiction of the 

Courts of the State of New York and to the extent permitted by law 

the parties expressly waive all rights to challenge or otherwise 

limit such jurisdiction.

The district court granted First Specialty’s motion, and Al Copeland appeals. 

II.

“When a district court decides a forum non conveniens motion based on 

a forum-selection clause, we review de novo the . . . ‘assessment of that clause’s 

enforceability,’” then ‘review for abuse of discretion the court’s balancing of 

private- and public-interest factors.’”1

III.

We apply a “strong presumption” in favor of enforcing mandatory forumselection clauses.2 This presumption may be overcome by a clear showing that 

 

1 Barnett v. DynCorp Int’l, L.L.C., 831 F.3d 296, 300 (5th Cir. 2016) (quoting Weber v. 

PACT XPP Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016)). 

2 Weber v. PACT XPP Techs., AG, 811 F.3d 758, 773 (5th Cir. 2016). The parties 

dispute only whether the forum-selection clause is enforceable. In Barnett, we observed that 

neither the Supreme Court nor our court has stated what source of law governs the “validity” 

of forum-selection clauses. 831 F.3d at 301. Though noting that our court has not drawn a 

distinction between “validity and enforceability, instead seeming to treat those words as 

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a forum-selection clause is “unreasonable” under one of the following 

circumstances: 

(1) [T]he 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 purposes be 

deprived of his day in court because of the grave inconvenience or 

unfairness of the selected forum; (3) the fundamental unfairness 

of the chosen law will deprive the plaintiff of a remedy; or (4) 

enforcement of the clause would contravene a strong public policy 

of the forum state.3

Al Copeland does not argue any of the first three prongs leaving the 

question of whether the clause’s enforcement would “contravene a strong 

public policy” of Louisiana, namely its alleged policy against forum-selection 

clauses in insurance contracts. Al Copeland derives this policy from Louisiana 

Revised Statute § 22:868, which provides that “[n]o insurance contract 

delivered or issued . . . in [Louisiana] . . . shall contain any condition, 

stipulation, or agreement . . . [d]epriving the courts of [Louisiana] of the 

jurisdiction of action against the insurer.”4

We hold that Section 22:868 does not evince a public policy against 

forum-selection clauses in insurance contracts. “When adjudicating claims for 

which state law provides the rules of decision, we are bound to apply the law 

as interpreted by the state’s highest court.”5 “If the state’s highest court has 

not spoken on the particular issue, it is the duty of the federal court to 

determine as best it can, what the highest court of the state would decide.”6

 

synonyms in the forum-selection clause context,” the Barnett panel deliberately chose not to 

resolve that question. Id. We, too, need not resolve that issue today.

3 Haynsworth v. The Corporation, 121 F.3d 956, 963 (5th Cir. 1997) (internal quotation 

marks omitted). 

4 LA. R.S. § 22:868(A)(2). 

5 Barfield v. Madison Cnty., 212 F.3d 269, 271–72 (5th Cir. 2000).

6 Id. at 272 (internal quotation marks omitted).

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Thus, for this diversity jurisdiction case, we must apply Louisiana law and 

resolve issues of interpretation as the Louisiana Supreme Court would. 

As always, the starting point in statutory interpretation is the “the 

language of the statute itself.”7 Section 22:868 prohibits provisions in an 

insurance contract that would deprive Louisiana courts of jurisdiction.8 “A 

forum-selection clause is a provision in a contract that mandates a particular 

state, county, parish, or court as the proper venue in which the parties to an 

action must litigate any future disputes regarding their contractual 

relationship.”9 Section 22:868 says nothing about venue. As the district court 

recognized, venue and jurisdiction are “separate and distinct.”10 We, too, will 

not stretch the definition of jurisdiction to include venue—a feat with no legal 

footing.11

Al Copeland’s arguments do not disturb this interpretation.12 Al 

Copeland first argues that Section 22:868 “contains mandatory language 

throughout (i.e., ‘shall’) and states that insurance contracts which violate its 

provisions ‘shall be void.’” Al Copeland also acknowledges that Louisiana 

 

7 Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 56 So.3d 181, 187–

88 (La. 2011) (citation omitted). 8 LA. R.S. § 22:868.

9 See Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc., 148 So.3d 871, 873 (La. 

2014) (internal quotation marks omitted) (holding that “forum-selection clauses are generally 

enforceable and are not per se violative of public policy in Louisiana”). 10 See LA. CODE CIV. PROC. ANN. art. 41 (defining venue as “the parish where an action 

or proceeding may properly be brought and tried under the rules regulating the subject”); LA.

CODE CIV. PROC. ANN. art. 1 (“Jurisdiction is the legal power and authority of a court to hear 

and determine an action or proceeding involving the legal relations of the parties, and to 

grant the relief to which they are entitled.”).

11 See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972 (“The argument that 

[forum-selection] clauses are improper because they tend to ‘oust’ a court of jurisdiction is 

hardly more than a vestigial legal fiction.”).

12 We need not address Al Copeland’s alternative policy arguments because we find 

that the plain language of Section 22:868 is clear and unambiguous. See Red Stick, 56 So.3d 

at 187–88 (“When a law is clear and unambiguous and its application does not lead to absurd 

consequences, the law shall be applied as written and no further interpretation may be made 

in search of the intent of the legislature.”) (citation omitted).

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statutes found to evince a policy against forum-selection clauses in certain 

contracts use the terms “forum” and “venue,” however, submits that the 

Louisiana legislature passed Section 22:868 in 1958.13 Thus, according to Al 

Copeland, the Louisiana legislature “over the passage of time . . . simply 

refined its verbiage to use ‘forum’ or ‘venue,’ rather than ‘jurisdiction’” and 

“refinement of the word ‘jurisdiction’ to the term ‘forum’ over a period of 30 

years is merely an effort to be more precise, rather than an effort to distinguish 

or achieve a different result.” We remain unpersuaded. The legislature’s use of 

“mandatory language” is no answer to the stark question before us: whether 

Section 22:868 precludes forum-selection clauses in insurance contracts. 

Moreover, Al Copeland’s “passage of time” argument would render the 

legislature’s use of the word “jurisdiction” meaningless.14

Al Copeland next contends that the district court improperly relied on 

Shelter Mutual Insurance Co. v. Rimkus Consulting Group, Inc. Al Copeland 

asserts that Shelter “does not require a conclusion that [First Specialty’s] 

forum-selection clause is allowed to stand” and that the statutes identified in 

Shelter as forbidding forum-selection clauses in certain contracts are “nonexhaustive examples.” To be sure, Shelter does not mandate a conclusion on 

Section 22:868 because the Shelter court was not tasked with interpreting 

Section 22:868. Nonetheless, the district court properly relied on Shelter for its 

explanation that forum-selection clauses concern venue and its holding that 

forum-selection clauses are “generally enforceable and not per se violative of 

 

13 See, e.g., LA. R.S. § 51:1407 (precluding forum-selection clauses in contracts subject 

to the Louisiana Unfair Trade Practices Act); LA. R.S. § 9:2779 (proscribing forum-selection 

clauses in a small subset of construction contracts); LA. R.S. § 23:921(A)(2) (banning forumselection clauses in employment contracts).

14 Shelter, 148 So.3d at 880 (“It is presumed that every word, sentence or provision in 

[a] statute was intended to serve some useful purpose, that some effect is to be given to each 

such provision, and that no unnecessary words or provisions were used.”) (citation omitted).

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public policy in Louisiana.” Al Copeland’s second argument is also likely true 

but is of no consequence as the district court neither concluded nor relied on 

the idea that the statutes discussed in Shelter are the only Louisiana statutes 

to preclude forum-selection clauses. 

Lastly, Al Copeland urges this Court to consider three Louisiana 

appellate court decisions. Those cases are inapposite and merit no discussion.15 

In conclusion, we hold that Section 22:868 does not indicate that 

Louisiana has a strong public policy against forum-selection clauses in 

insurance contracts. We therefore find that the parties’ forum-selection clause 

is enforceable.

IV.

We next examine whether the public-interest factors weigh in favor of 

keeping this case in Louisiana. The existence of a mandatory, valid and 

enforceable forum-selection clause means that we afford no weight to plaintiff’s 

choice of forum and consider only the following public-interest factors: (1) 

administrative difficulties flowing from court congestion; (2) local interest in 

having localized controversies decided at home; (3) 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; (4) the avoidance of unnecessary problems in conflict of laws; 

and (5) the unfairness of burdening citizens in an unrelated forum with jury 

 

15 See Lawrence v. Cont’l Ins. Co., 199 So.2d 398, 399 (La. App. 3 Cir. 1967) (reversing 

lower court that dismissed case for lack of personal jurisdiction over an uninsured motorist 

and finding that policy’s clause, which required the insured to join an uninsured motorist, a 

non-resident over whom Louisiana had no personal jurisdiction, violated § 22:629, the 

predecessor to § 22:868); Bonura v. United Bankers Life Ins. Co., 509 So.2d 8, 10–11 (La. App. 

1 Cir. 1987) (finding subject matter jurisdiction pursuant to § 22:629 “over a Texas statutory 

entity and a Texas receiver in a claim by Louisiana residents against a foreign insurer, where 

that insurer has been placed in receivership in Texas, but not in Louisiana”), disapproved of 

by All Star Advert. Agency, Inc. v. Reliance Ins. Co., 898 So.2d 369 (La. 2005); Krueger v. 

Tabor, 546 So.2d 1317, 1320–21 (La. App. 3 Cir. 1989) (finding subject matter jurisdiction 

pursuant to § 22:629 and rejecting argument that a party bringing an action against a 

receiver must do so in the court where receivership proceedings have been instituted).

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duty.16 “Those factors justify refusal to enforce a forum-selection clause in 

‘truly exceptional cases.’”17

We find that the district court remained in the bounds of its discretion 

when ruling that the pubic-interest factors warrant dismissal. On appeal, Al 

Copeland advances three arguments; they are: First Specialty provided federal 

management statistics regarding court congestion in the Eastern District of 

Louisiana, and not in New York state court; this case has little connection to 

New York; and this dispute will be subject to “foreign law” if the forumselection clause is enforced. 

These arguments do little to make this case “truly exceptional” to halt 

enforcement of the forum-selection clause. Al Copeland’s first argument 

misconstrues the burden; that is, Al Copeland, not First Specialty, must show 

why transferring this case to New York state court would cause 

“administrative difficulties flowing from court congestion.”18 Al Copeland’s 

second and third arguments are one in the same. They are variations of Al 

Copeland’s fear that a New York state court will not invalidate the policy’s 

choice of law provision and apply New York law. That fear is “not the sort of 

exceptional circumstance that justifies disregarding the parties’ agreement on 

public-interest grounds.”19

V.

We affirm the district court’s grant of First Specialty’s motion to dismiss.

 

16 Barnett, 831 F.3d at 309.

17 Id. (quoting Weber, 811 F.3d at 776).

18 Weber, 811 F.3d at 776.

19 Id. (rejecting argument that Texas and United States have an interest in protecting 

their citizens from abuse by foreign corporations and upholding forum-selection clause 

requiring litigation in Germany); see also Atl. Marine Constr. Co. v. U.S. Dist. Court for the 

W. Dist. of Tex., 134 S. Ct. 568, 584 (2013) (rejecting the “rule that the law of the court in 

which the plaintiff inappropriately filed suit should follow the case to the forum contractually 

selected by the parties”) (emphasis added).

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