United States Court of Appeals

FOR THE EIGHTH CIRCUIT

96-2140NISC Terra International, Inc., A * Delaware Corporation,, *

Appellant, * States

v. * Northern District of Iowa Mississippi Chemical * Corporation, A Mississippi * Corporation,, *

Appellee. * Appeal from the United

* District Court for the

*

*

On the court's own motion, the judgment of May 16, 1997,
is vacated, and the opinion filed on that date is withdrawn

. The attached opinion is filed in its stead.

July 11, 1997

Order entered at the direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________ No. 96-2140

_____________
TERRA INTERNATIONAL, INC., * A Delaware Corporation, * * Plaintiff - Appellant, * * Appeal from the United States
v. * District Court for the * Northern District of Iowa. MISSISSIPPI CHEMICAL * CORPORATION, * A Mississippi Corporation, * * Defendant - Appellee. *

_____________ Submitted: September 9, 1996

Filed: July 11, 1997

_____________ Befor e WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, an d HANSEN, Circuit Judge.

_____________
HANSEN, Circuit Judge.The Honorable Mark W. Bennett, United States District Judge for the Northern 1 District of Iowa.
2 Terra I nternational, Inc., (Terra) appeals the district court's order grantin g 1 Mississippi Chemical Corporation's (MCC) motion to transfer this lawsui t to the United States Dis trict Court for the Southern District of Mississippi and denying Terra' s motion to enjoin permanently MCC from proceeding in its own lawsuit subsequently filed in the Mississippi court. Terra Int'l, Inc. v. Mississippi Che m. Corp. , 922 F. Supp. 1334 (N.D. Iowa 1996). Terra filed its complaint in the Northern District of Iowa , alleging that MCC's design of its ammonium nitrate neutralizer technology, w hich MCC licen sed to Terra, was defective and caused an explosion at Terra's plant. Relyin g primarily on the forum selec tion clause contained in the license agreement, the district court g ranted MCC's motion to transfer under 28 U.S.C. § 1404(a) (1994). For th e reasons outlined below, we affirm.

I.

Terra International, Inc., manufactures and distributes a variety of agricultura l prod ucts including nitrogen-based fertilizers. Terra's principal place of business is in Sioux City, Iowa. Mississippi Chemical Corporation also engages in the productio n of fertilizers and is the largest manufacturer of ammonium nitrate fe rtilizer in the United States. MCC's principal place of business is in Yazoo City, Mississippi.

In th e late 1970s, MCC developed an improved ammonium neutralizatio n proc ess and designed a new version of an apparatus called a "neutralizer" which , working together, reduced the ammonium nitrate emissions into the environment and increased the efficiency of the ammonium nitrate manufacturing process. MCC decided to make it s neutralizer technology available to the rest of the fertilizer industry b y licensing i ts technology to other fertilizer producers. On April 28, 1980, MCC an d Terra entered into a license agreement under w hich Terra agreed to pay MCC $40,000MC C's technology is currently used at 22 other ammonium nitrat e 2 manufacturing facilities.
MCC does not actually manufacture neutralizers but merely licenses it s 3 neutralizer design to its licensees.
3 to use MCC 's neutralizer technology at Terra's manufacturing facility in Port Neal , Iowa. The license agreement required MCC to provide Terra with the blueprints to 2 its ne utralizer, to review Terra's proposed design of a neutralizer, and to provid e training and start-up engineering assistance to Terra. 3

One section of the license agreement, entitled "Laws and Suits," contained a forum selection clause. The entire paragraph reads as follows:

This agreement will be construed in accordance wi th the laws of the State of M ississippi. Any dispute or disputes arising between the parties hereunder , insofar as the same c annot be settled by friendly agreement, will be determined in the District Court of the United States for the Southern District of Mississippi and, for the purpose of instituting such suit, [Terra] hereby consents to service in connection therewith through the Secretary of State for the State o f Mississippi. (Appellant's App. at A261 (emphasis added).) The emphasized portion of the above paragraph is the forum selection clause at issue in this case, the meaning of which i s highly contested.
On December 13, 1994, 14 years after Terra and MCC entered into the license agreement, an explosion oc curred at Terra's Port Neal factory. The explosion killed 4 people, injured 18 others, and leveled the facility's ammonium nitrate plant.

On August31, 1995, Terra filed a lawsuit against MCC in the United State s District Court for the Northern District of Iowa, Western Division, located in SiouxMCC based its defamation claim on several public statements made by Terra 4 officials in which they asserted that MCC's d efectively designed neutralizer caused the explosion.
Terra also filed its own motion to transfer in the federal district court i n 5 Mis sissippi, asking the Mississippi court to transfer MCC's lawsuit to Iowa. In a n unrepo rteddecision, the federal magistrate judge denied Terra's motion to transfer , fin ding that the forum selection clause unambiguously required these disputes to b e litigated in Mississippi. Mississippi Chem. Co rp. v. Terra Int'l Inc. , 1996 WL 293764, at *7 ( S.D. Miss. 1996). The magistrate judge's decision was affirmed by the district judge on appeal.
4 City. In its complaint, Terra limited its cause of action to two tort claims. The firs t count alleged that MCC negligently designed its neutralizer technology and failed t o train and properly warn Terra employees regarding the technology. The second count asserted that MCC's neutralizer technology was unreasonably dangerous and defective and thus alleged that MCC should be held stri ctly liable for the damages caused by the explosion. Terra did not assert any parallel claims for b reach of contract. On the same day, a few hours later, MCC filed a lawsuit against Terra in the United States District Court fo r the Southern District of Mississippi, located in Jackson. In its complaint , MCC sought a declaratory judgment that it was not liable in any way for the explosion at Terra's Port Neal facility and asserted a defamation claim against Terra. 4

In December 1995, MCC filed a motion to tra nsfer the Iowa case to Mississippi pursuant to 28 U.S.C. § 1404(a), while Terra filed a motion for a permanent injunction asking the federal court in Iowa to prevent MCC from prosecuting MCC's lawsuit in Mississippi. After considering many of the relev ant factors under section 1404(a), the

5 Iowa co urt determined that neither the "convenience" factors nor the "interest o f ju stice" factors decidedly weighed in favor of either Iowa or Mississippi. Terra Int' l Inc. , 922 F. Supp. at 1356-64. The court then analyzed the forum selection claus e contained in the 1980 license agreement and concluded that the clause unambiguously required Terra's tort claims to be litig ated in the Mississippi federal court. Id. at 1382.5

The co urt thus granted MCC's motion to transfer Terra's lawsuit to Mississippi an d correspondingly denied Terra's motion for a permanent injunction. Terra challenges the conclusions of the Iowa federal court.

II.

Section 1404(a) governs the ability of a federal district court to transfer a case to anot her district. This provision reads: "For the convenience of the parties an d witnesses, in the interest of justice, a district court may transfer any civil action to any othe r district or division where it might have been brought." 28 U.S.C. § 1404(a ) (1994 ). The statutory language reveals three general categories of factors that courts must consider when deciding a motion to transfer: (1) the convenience of the parties, (2) the convenie nce of the witnesses, and (3) the interests of justice. Id. Courts have not, howev er, limited a district court's evaluation of a transfer motion to thes e enumerated fac tors. Instead, courts have recognized that such determinations require
a case- by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors. See Stewa rt Org., Inc. v. Ricoh Corp. , 487 U.S. 22, 29 (1988); Jumara v. Sta te Farm Ins. Co. , 55 F.3d 873, 879 (3d Cir. 1995); 15 Charles Ala n Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Proc edure § 3847, at 370 (2d ed. 1986). As the Supreme Court explained, "[a] motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case

specific fa ctors." Stewart , 487 U.S. at 29. Although there is no exhaustive list o f specifi c factors to consider, courts have determined that a valid and applicable forum selection clause in a contract is "a significant factor that figures centrally in the district court's calculus." I d. On appeal, Terra argues that the district court incorrectly found the f orum selection clause applicable to its tort claims and improperly weighed th e other section 1404(a) factors. Although the parties agree that we review a district court's decision regarding a section 1404(a) transfer motion for an abuse of disc retion, see Stewart , 487 U.S. at 29;6

Everett v. St. Ansgar Hosp. , 974 F.2d 77, 79 (8th Cir. 1992), they disagree over th e appropriate standard of review regarding a district court's construction of a foru m selection clause. Terra argues that we should review the court's interpretation of the forum selection clause de novo, because such an interpretation is equivalent to th e constru ctionof a contract which is a legal issue. MCC, however, asserts that i n weighing the relevant section 1404(a) factors, the district court was not required t o interpret the specific meaning of the forum selection clause but merely recognize it s presence and factor it into the equation. Consequently, MCC believes that the abuse of discretion standard, which appl ies to the district court's overall balancing of various factors, also applies to the court's specific treatment of the forum selection clause.

In Sun World Lines v. March Shipping Corp. , 801 F.2d 1066, 1068 n.3 (8th Cir. 1986), this court, following the Ninth Circuit's approach, reviewed for an abuse o f discreti on a district court's "enforcement" of a forum selection clause. The dispute in Sun World , however, concerned the validity of the forum selection clause. Id. at 1067. In the case at hand, ne ither party challenges the validity of the forum selection clause; rather, they contest the specific meaning of the language used in the forum selectio n clause, which was not an issue in Sun World . The Ninth Circuit itself has refined its appr oach and has explained that it employs de novo review when a district court i s required t o interpret the language of a forum selection clause. Northern. Cal. Dist

. Council of Laborers v. Pittsburg-Des Moines Steel Co. , 69 F.3d 1034, 1036 n.3 (9th Cir. 1995).
Here, interpreting the lang uage of the forum selection clause is necessary to the section 1404(a) transfer analysis. Before a district court can even consider a foru m selection clause in its transfer analysis, it first must decide whether the clause applies to the type of claims asserted in the lawsuit. Following the Ninth Circuit's approach,
as well as our own standard of review in cases of contract interpretation, see Unite d States v. Brekke , 97 F.3d 1043, 1049 (8th Cir. 1996) (applying de novo review t o district court's construction of a contract), we conclude that de novo review is theRecognizing that its interpretation of the forum selectio n clause was very broad, 6 the district court attempted to confine the breadth of the clause not by its own terms, but by policy considerations that indicate that it would be unreasonable to apply a broad fo rum selection clause contained in a contract to a lawsuit that is completel y unrelatedto the subject of the contract. Consequently, the district court imposed the requirement that the claims at issue between the parties must be sufficiently related to the contr act in order for the forum selection clause to apply. See Terra , 922 F. Supp. at 1376.
7 appropriate standard for reviewi ng a district court's interpretation of the specific terms contain ed in a forum selection clause. See Jumara , 55 F.3d at 880-81; Hugel v

. Corporation o f Lloyd's , 999 F.2d 206, 207 (7th Cir. 1993); Milk `N' More, Inc. v

. Beavert , 963 F.2d 1342, 1345 (10th Cir. 1992).

A.

Terr aclaims that the forum selection clause in the license agreement does no t apply to its tort claims and therefore should not receive any consideratio n in the transfer analysis under section 1404(a). To reiterate, the forum s election clause provides, "Any dispute or disputes arising between the parties hereunder, insofar as the same cannot be settled by friendly agreement, will be determined in the District Court of the United States for the Southern District of Mississippi . . . ." (Appellant' s App. at A261.) Terra conte nds that the word "hereunder" modifies the word "arising" instead of the wor d "parties," indicating that the clause applies only to claims arising under the licens e agreement. Terra asserts that its tort claims do not arise under the agreement but are independent of it. The district court rejected Terra's interpretation and emphasized that the plac ement of "hereunder" directly after "parties" unambiguously indicates that "h ereunder" modifies "parties." Terra , 922 F. Supp. at 1376. Thus, the cour t concluded that the forum selection clause unambiguously applies to any di sputes arising between the parties. Id. at 1375-76. 6See, e.g. , License Agreement, ¶ 10 ("[n]either part y hereto will assign any of its 7 rights or obligations hereunder to any person, firm, corporation or organization not a party to this Agreement without the prior written consent of the other party." ) (Appell ant's App. at A261 (emphasis added)); License Agreement, ¶ 12(b) ("Th e hea dings contained in this Agreement are used solely for convenience and do no t constitute a part of the Agreement between the parties hereto ." ) ( Id. (emphasis added)).
8 After analyzing the language of the clause and reviewing the arguments of the parti es, we conclude that the forum selection clause is reasonably susceptible to both in terpretations. The placement of "hereunder" directly after the word "parties" could reasonably suggest that it modifies "parties," w hich would give the clause a very broad scop e covering any disputes arising between the parties. We also find Terra' s interp retation reasonable, because we are persuaded that, at least in this contractua l conte xt, "hereunder" typically signifies "under the agreement," while "hereto" mos t often refers to the parties to the agreement. Thus, we find tha t the clause is ambiguous. See Wi lson v. Prudential Ins. Co. Am. , 97 F.3d 1010, 1013 (8th Cir. 1996); Servic e Unlimited, Inc. v. El der , 542 N.W.2d 855, 857 (Iowa Ct. App. 1995); Texaco, Inc. v. Kennedy , 271 So. 2d 450, 452 (Miss. 1973).
Terra urges us to construe the ambiguous clause against its drafter--MCC. We decline to apply the doctrine of contra proferentem to this case due to the relativel y equal bargaining strengths of both parties and the fact that Terra was represented b y sophistic ated legal counsel during the formation of the license agreement. See Dat a Gen. Corp. v. Grumman Sys. Support Corp. , 36 F.3d 1147, 1166 n.33 (1st Cir. 1994). We are c onvinced, however, that Terra's more narrow interpretation of the foru m selection clause (i.e., "hereunder" modifi es "arising" not "parties") is more compelling. First, construing the license agr eement as a whole, see, e.g. , Krupnick v. Ray , 61 F.3d 662, 664 (8th Cir. 1995); Lange v. Lange , 520 N.W.2d 113, 119 (Iowa 1994); Brown

v. Hartford Ins. Co. , 606 So. 2d 122, 126 (Miss. 1992), the parties uniformly use the word "hereunder" in several other portions of the license agreement to mean "under this Agreement," while they use the word "hereto" to refer to the parties to the Agreement. 7Having found the clause ambiguous, we appropriately consider extrinsi c 8 evidence to interpret this contract provision. See Marren v. Mutual Life Ins. Co. o f New York , 84 F.3d 1068, 1070 (8th Cir. 1996); Uhl v. City of Sio ux City , 490 N.W.2d 69, 73 (Iowa

Ct. App. 1992); Farragut v. Massey , 612 So. 2d 325, 329 (Miss. 1992).
9 Second, the forum selection clauses contained in MCC's license agreements with other parties indicate that MCC knew how to draft an explic itly broad clause when it wanted to but did not do so here. One such clause reads, "Should any dispute or difference 8 of any kind whatsoever arise between MCC and [redacted party] in connection with
or arising outof this Agreement. . . ." (Appellant's App. at A264.) Moreover, thes e other clauses were drafted many years before this litigation arose which indicates that MCC was aware of the significance of the particular wording of these clauses at th e time it drafted them. Consequently, we believe that the parties intended the foru m select ionclause in this case to apply only to disputes arising under the licens e agreement. This conclusion, however, only leads us to our next question-- whethe r Terra's tort claims actually arise under the license agreement. "Whether tort claims are

to be governed by forum selection provisions depends upon t he intention of the parties reflected in the wording of particular clauses and the facts of each case." Berrett v. Life Ins. Co. of the Southw est , 623 F. Supp. 946, 948-49 (D. Utah 19 85). An analysis of the specific language of the forum selection clause in this case does not clearly indicate whether t he clause applies to Terra's tort claims. As
we have c onstrued it, the clause requires any disputes arising under the licens e agreement to be determine d in Mississippi. Terra asserts that its negligence and strict liability c laims do not arise under the agreement because they are based on MCC' s breach of com mon law tort duties that are independent of any duty arising from th e license agreement, and they do not require a particular construction of the agreement's terms. MCC, on the other hand, contends that Terra's tort claims target the specifi c subject matter of the license agreement, the neutralizer technology, and explains that without the license agreement, Terra never would have received the technology.10

Al thoughthe cases deciding whether very similarly-worded forum selectio n clauses cover tort claims have reached different conclusions, the majorit y of these cases suggests that such clauses do apply to tort claims. In Banco Popular de Puerto Rico

v. Airborne Group PLC , 882 F. Supp. 1212 (D.P.R. 1995), the parties entered into a sales agreeme nt for the sale of a blimp. The agreement contained a forum selectio n clause which provided that "disputes hereunder or as to the construction of thi s Agreements hall be resolved in the Courts of England." Id. at 1213. The cour t determined th at, in addition to his breach of contract claims, this clause encompassed all of the plaintiff's tort claims which included claims for negligent manufacture an d maintenance

of the blimp. Id. at 1214, 1217. Additionally, another court determined that a forum selection provision which read, "In the event of any litigation commenced by either party hereunder, such action shall be co mmenced in New York," covered tort claims based on fraud an d deceit. Picken v. Minuteman Press Int'l, Inc. , 854 F. Supp. 909 (N.D. Ga. 1993). In discussi ng the clause, which is remarkably similar to the one presently at issue, the court explained that "Reading t he word `hereunder' to apply only to a pure breach of contract claim between the parties would be unduly crabbed an d narrow. `Hereunder' refers to the relations that ha ve arisen as a result of this contract." Id. at 911; see also , Warnaco Inc. v. VF Corp. , 844 F. Supp. 940, 947-49 (S.D.N.Y. 1994) (finding tor

t claims covered by forum selection clause reading, "Any dispute or issue arising hereunder . . . ."); Nat'l Micrographics Sys., Inc. v. Canon U.S.A., Inc. , 825 F. Supp. 671, 677-78 (D.N.J. 1993) (finding forum selection provision readin g "any and a ll causes of action hereunder by and between the parties hereto" covere d claims for to rtious interference); but see , Hoffman v. Minuteman Press Int'l. Inc. , 747 F. Supp. 552, 559 (W.D. Mo. 1990) (h olding that tort claim for fraudulent inducement was not covered by forum selection clause reading "any litiga tion commenced by either party hereunder"); Berrett , 623 F. Supp. at 947, 949 (finding that forum selection clause which r ead "parties agree that any action at law or in equity hereunder" did not apply to sever al business-related tort claims). These cases indicate that forum selectio n clauses referring to claims " hereunder" or "under the agreement" can be broad enough to cover contract-related tort claims.11

Althoug h determining the scope of a forum selection clause is a rather case

specific exercise, several courts have offered further guidance on this issue and have articul ated variously phrased general rules regarding the circumstances in which a forum selection clause will apply to tort claims. The Third Circuit has indicated that wher e tort claims "ultimately depend on the existence of a contractual relationship " between the parties, such cl aims are covered by a contractually-based forum selection clause. Coastal Steel Corp. v. Tilghman Wheelabrator Ltd. , 709 F.2d 190, 203 (3 d Cir.), cert. denied , 464 U.S. 938 (1983). In Manetti-Farrow, Inc. v. Gucci America, Inc. , 858 F.2d 509, 514 (9th Cir. 1988), the Ninth Circuit stated that "[w]h ether a forum selection clause applies to tort claims depends on whether resolution of the claim s relates to inter

pretation of the contract." The First Circuit has phrased its test slightly differently, explaining that "contract-related tort claims involving the same operativ e facts as a parallel claim for breach of contract sho uld be heard in the forum selected by the contracting parties." Lambert v. Kysar , 983 F.2d 1110, 1121-22 (1st Cir. 1993). The district court in the present case referred to these cases, but relied chiefly on this court's decision in Farmland Indus., Inc. v. Frazier-Parro tt Commodities, Inc. , 806 F.2d 848, 852 (8th Cir. 1986), abrogated on o ther grounds by Lauro Lines v. Chasser et al. , 490 U.S. 495 (1989), for the general proposition that forum selection clauses cover tort claims that are directly or indirectly related to the parties' contractual relationship. See Terra , 922 F. Supp. at 1379-80. While the three previous cases do speak in genera l terms, our review of the Farmland decision leads us to conclude that the case does not st andfor such a general proposition. Instead, the decision is limited to its facts , because t he "directly" or "indirectly" language was contained in the specific foru m selection cla use at issue in that case. See Farmland , 806 F.2d at 849, 852

. Consequently, our consideration is limited to the first three generally applicable tests. The first two guiding principles are not very instructive wh en applied to the facts of this case. At first glance it appe ars that Terra's tort claims would not be covered by the forum selection clause under the Ninth Circu it's test because the resolution of these products liability claims does not seem to relate to or require the interpretation of the12

license agreement. Nevertheless, while these tort claims do not center around a disagreement

over the specific terms of the license agreement, one could argue tha t they "relate" to the agreement's interpretation because the tort claims directly involve the ent ire subject matter of the license agreement. The Third Circuit's rule is als o inconclusive in this case. MCC asserts that Terra's to rt claims do ultimately depend on the existence of a contractual relationship because without the li cense agreement, MCC would not have provided Terra with its neutralizer te chnology. Terra, however, argues forcefully that its tort claims are based on MCC's alleged breach of its common law tort duties which are independent of the contract.

The First Circuit's approach is more revealing in this case, and we believe that it merits application to the circumstances before us. We think it is c lear that Terra's tort claims involve the same operative facts as would a parallel claim for breach of contract. Ad mittedly, Terra did not raise any claims for breach of contract in its complaint

. Strategic or artfully drawn pleadings, however, will not work to circumvent a n otherwise applicable forum selection clause. See Lambert , 983 F.2d at 1121; Coastal Steel , 709 F.2d at 203. Although we recognize that Terra's claims are alleged as tort claims, Terra p lainly could have asserted a parallel claim for breach of contract in the

same complaint. The fact that MCC's technology allegedly caused an explosion that actively i nflicted damage does not transform Terra's cause of action into one base d exclusively in tort. The same exact facts surrounding Terra's tort claims would als o give rise to a breach of contract claim. Therefore, according to the r ationale of the First Circuit's rul e in Lambert , we believe that the forum selection clause applies to Terra's tort claims.

Several other considerations also persuade us that the forum selection claus e covers Terra's tort claims. After finalizing the license agreement, we believe that both part ies could have anticipated that tort claims such as Terra now brings would b e litigatedin Mississippi. Paragraph 2(b) of the license agreement provides that MCC willreimburse Terra for costs or damages resulting from "any defect in the design ofOur references to portions of the License Agreement that refer to possible 9 design defects merely bolster our belief that the forum selection clause applies to Terra's common law tort claims. We express no views regarding the applicability of any other provision (including any provision for the limitation of liability or damages) of the License Agreement to Terra's tort claims.
13 [Terra' s] neutralizer . . . which can be shown to result from errors in the informatio n contain ed in the Design Manual." (Appellant's App. at A255.) Although Terr a conten ds that this provision is very limited in scope, it expressly envisions that future claims of defective design may arise between the parties. Moreover, Terra's ow n complaint repeatedly refers to the specific promises that MCC made under the license ag reement. ( Id. at A18.) These facts support our conclusion that Terra's tort claim s arise under the lic ense agreement, and therefore, the forum selection clause applies to Terra's claims. 9

B.

Our conclusion that the scope of the forum selection clause covers Terra's tort claims does not end our analysis, however. As mentioned earlier, the significance of the forum selection clause in this case arises in the context of a m otion to transfer under section 1404(a). The fact that we have found the clause applicable merely allows us to consider it as one factor, albeit a very i mportant one, in the overall transfer analysis. Terra posits the alternative argument that even if the forum selection clause applies, the other relevant factors, especiall y the convenience of the witnesses, weigh decidedly in favorof th e Iowa forum and sufficiently outweigh the significance of the foru m selection clause. Terra argues that the district court abused its discretion in evaluating these additional factors and in concluding that they do not weigh i n favor of either Iowa or Mississippi, thus giving the forum selection clause dispositive effect in this case.In The Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 10 (1971), the Supreme 10 Cour t also suggests that the burden shifts to the party resisting the application of a forum selection clause to demonstrate that enforcement of the clause would b e unreasonable. The breadth of this holding, however, is unclear due to the fact that the Co urt subsequently states that "this is the correct doctrine to be followed by federa l district courts sitting in admiralty." Id.
14 Terra alleges that the district court abused its discretion in conductin g the general
sec tion1404(a) transfer analysis. Initially, Terra argues that the district court improperly shifted the burden of persuasion from MCC to Terra. In general, federa l courts give considerable deference to a plaintiff's choice of forum and thus the party seeking a transfer under section 1404(a) typically bears the burden of proving that a transfer is warranted. See Jumara , 55 F.3d at 879; Sch eidt v. Klein , 956 F.2d 963, 965 (10th Cir. 1 992). Some courts, however, have held that the existence of a foru m selection clause that dictates that a lawsuit s hould be transferred to another court shifts the burden to the party opposing the transfer motion. See Jumara , 55 F.3d at 880; In Re Ricoh C orp. , 870 F.2d 570, 573 (11th Cir. 1989). Terra disagrees with th e 10 holdings i n these cases and alleges that the district court abused its discretion b y shifting the b urden to Terra. The district court did in fact believe that the burden was on Terra to demonstrate why the forum selection clause sh ould not be enforced. Terra , 92 2 F. Supp. at 1370. Nevertheless, the district court also stated that "even if th e burden remained with MCC, MCC met that burden." Id. at 1382 n.33. We agree with the district court's conclusion that MCC fulfilled any potential burden it had to prove that a tra nsfer was warranted by establishing that the other section 1404(a) factor s (discus sed below) did not overcome the significance of the forum selection clause

. Because we agree with the distric t court's alternative conclusion that MCC fulfilled its potential burden, we decline to rule on the issue of whether a forum selection claus e shifts th e burden of proof to the party resisting the clause's enforcement and merel y conclude that the district court did not abuse its discretion on this issue.15

Terranext contends that the district court improperly analyzed the sectio n 1404(a) factors by focusing on whether the inconvenience of litigating in Mississippi could be mitigated instead of determining, on balance, which forum would be the most convenient. Terra primarily challenges the district court's conclusion that the othe r rele vant factors did not weigh decidedly in favor of the Iowa forum. After reviewing the district court's reas oning, we find that the district court did not abuse its discretion in weighing the factors relevant to a motion to transfer under section 1404(a).

As me ntioned earlier, a transfer motion requires the court to consider th e
co nvenience of the parties, the convenience of the witnesses, the interests of justice , and any other relevant factors when comparing alternative venues. See 28 U.S.C

. § 1404( a); 15 Wright, Miller, and Cooper, supra , § 3847. A review of the distric t court's opini on reveals that the court meticulously analyzed the numerous criteria that courts tra ditionally consider when deciding a motion to transfer. Under the genera l cate gory titled "Balance of Convenience" the district court considered (1) th e
conven ience of the parties, (2) the convenience of the witnesses--including th e willingness of witnesses to appear, the ability to subpoe na witnesses, and the adequacy of deposition testimony, (3) the accessibility to records and documents, (4) the location where the conduct complained of occurred, and (5) the applicability of each foru m stat e's substantive law. Terra , 922 F. Supp. at 1357-61. Under the category title d "Interest of Justice" the court also considered (1) judicial economy, (2) the plaintiff's choice of forum, (3) the comparative costs to t he parties of litigating in each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a lo cal court determine questions of local law. Id. at 1361 -63. These considerations parallel the factors that courts typically analyze under section 1404(a). S ee, e.g. , Jumara , 55 F.3d at 879-80; Chrysler Credit Corp. v. County Chrysler, Inc. , 928 F.2d 1509, 1516 (10th Cir. 1991) (quoting Texas Gul f Sulphur Co. v. Ritter , 371 F.2d 145, 147 (10th Cir. 1967)).The district court in Mississippi reached this v ery conclusion. Unlike the Iowa 11 district court, the Mississippi court bel ieved that the convenience factors favored Iowa but determined that the forum selection clause outweighed these considerations. See Mississippi Chem. Corp. , 1996 WL 293764, *3. 16 Although Terra concedes that the district court considered the appropriat e factors, T erra focuses its attack primarily on the district court's analysis regarding the

conv enience of the witnesses. Terra argues that this factor is significant and weigh s heavily in favor of the Iowa forum. Terra explains that a clear majority of nonparty witnesses resides in Iowa, that Terra would not be able to compel these witnesses to tes tify in Mississippi, and that videotaped depositions are a poor substitute for liv e testimony. While these assertions may be true, we agree with the district court' s conclusion that "sheer numbers of witnesses will not decide which way the c onvenience factor tips." Terra , 922 F. Supp. at 1360. Moreover, similar inconveniences would fall on MCC if it were required to litigate in Iowa. "Merely shifting the inco nvenience from one side to the other, however, obviously is n ot a permissible justification for a change of venue." Scheidt , 956 F.2d at 966.

To Terra' s credit, we admittedly are quite skeptical of the district court' s conclusion that the balance of convenience was flat. Even if we tend to believe that the convenience factors weigh in favor of an Iowa forum, however, we cann ot say that they
so over whelmingly favor Iowa as to outweigh the significance of the agreed-upo n forum selection clause and moreover, to such a degree that the district court abused its discretion in concluding that a transfer was warranted. To reiterate, a forum selection 11 clauseis "a significant factor that figures centrally in the district court's calculus" in a mot ionto transfer, Stewart , 487 U.S. at 29, and section 1404(a) accords the distric t court much discretion in deciding such moti ons. See id. ; Norwood v. Kirkpatrick , 349 U.S. 29, 32 (1955). We have carefully reviewed the record, and while we may have
reac heda different decision were we the district court, we conclude that the distric t court did not abuse its discretion in deciding to transfer this lawsuit to Mississippi.Inthe district court, Terra initially argued that because it filed its lawsuit i n 12 Iowa a few hours before MCC filed its lawsuit in Mississippi, the first-filed rul e dictates that this litigation should proceed in Iowa. See United States Fire Ins. Co. v. Goodyear Tire & Rubber Co. , 920 F.2d 487, 488 (8th Cir. 1990) (first-filed rule gives pr iority, for purposes of choosing among possible venues when parallel litigation has been instituted i n separate courts, to the party who first established jurisdiction). The district court concluded that the first-filed rule does not "trump" the transfer analysis and rea soned that when a transfer analysis under section 1404(a) dictates that a case shou ld be transferred, this constitutes a "compelling circumstance" that warrants a n abr ogationfrom the first-filed rule. Terra , 922 F. Supp. 1350; see also Northwes t Airlines v. American Airlines , 989 F.2d 1002, 1006 (8th Cir. 1993) (explainin g "compe lling circumstances" exception to first-filed rule). Because the parties did not challe nge this conclusion on appeal, we limit our review to the district court's section 1404(a) transfer analysis and need not further discuss the first-filed rule.

17 III.
Consequently, we affirm the judgment of the district court. We deny as moot 12 MCC's motion to supplement the record on appeal.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.