[D O NOT PUBLISH ]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 13477

________________________ D.C. Docket No. 0:16

- cv - 60197

- JIC

MICHAEL HISEY,
Plaintiff

- Appellant ,

versus QUALTEK USA, LLC, JOSEPH KESTENBAUM, CHRISTOPHER HISEY,

Defendants

- Appell ees .

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (October 9, 2018) Before TJOFLAT and JORDAN, Circuit Judges, and STEELE, * District Judge.

* Honorable John E. Steele, United States District Judge for the Middle District of Florida, sitting by designation.

Case: 16-13477 Date Filed: 10/09/2018 Page: 1 of 142 STEELE, District Judge : This case involves a contractual forum

- selection clause that limits the forum of litigation to all state and federal courts within Pennsylvania

. Plaintiff nonetheless sued D efendants in Florida state court

. Seeking t o enfor ce the forum

selection clause, D efendants filed a motion to dismiss the case after they removed it to federal court

. The district court granted the motion pursuant to the doctrine of forum non conveniens and Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas , 134 S. Ct. 568 ( 2013 ). This appeal challenges the propriety of that dismissal and the subsequent denial of a motion for relief under Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure. After careful review of the parties’ briefs and the record , and w ith the benefit of oral argument, w e affirm the district court’s orders.
I. Plaintiff

- Appellant Michael Hisey ( “ Hisey ” ) was former ly the Chief Business Officer for Qualtek USA, LLC ( “ Qualtek ” ) , a Delaware company with its principal place of business in Pennsylvania. On April 29, 2013, Hisey signed a
two

- page Employment Offer Letter agreement (the “ Qualtek employment
agree ment ” ) containing the following choice

- of

- law provision and forum

- selection clause: In the event a dispute does arise regarding your employment with the Company, including any validity Case: 16-13477 Date Filed: 10/09/2018 Page: 2 of 143 interpretation, construction and performance of this letter, said dispute shall be gover ned by and construed in accordance with the substantive laws of th e Commonwealth of Pennsylvania. Jurisdiction for resolution of any disputes shall b e solely in Pennsylvania. In December 2014, Qualtek fired Hisey

. One year later, Hisey filed suit against Qualtek and two Qualtek officers (collectively , “ Defendants ” ) in state court in Broward County, Florida

. 1 The ten

count complaint assert ed a variety of discrimination and retaliation causes of action pursuant to the Florida Civil Rights Ac t , Fla. Stat. §§ 760.10(1), 760.10(7), and 760.50(5); the Broward County Human Rights Act; Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000(e)

- 2,

- 3; and the Americans with Disabilities Act, 42 U.S.C. § 12101. Defendants timely removed the case to the United States District Court for the Southern District of Florida based upon federal question a nd supplemental jurisdiction. Defendants then filed a motion to d ismiss the c omplaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), 12(b)(6) , Local Rule 7.1 of the Southern District of Florida Local Rules , and the doctrine of forum non
conveniens

. As relevant to this appeal, D efendants argued that dismissal was appropriate because the valid forum

- selection clause contained in the Qualtek

1 Hisey asserts that he performed his job functions at Qualtek’s satellite office in Broward County, Florida.

Case: 16-13477 Date Filed: 10/09/2018 Page: 3 of 144 employment agreement required suit to be filed in Pennsylvania state or federal
court . A lternatively, Defendants argued the case should be dismissed under the traditional doctrine of forum non conveniens , becuase Pennsylvania courts could more appropriat ely resolve the dispute. In response , Hisey a sserted that the forum

- selection clause was invalid because the Qualtek employment agreement was not enforceable , and that application of the forum non conveniens doctrine supported litigating in Florida,
not Pennsylvania. Neither side requested a transfer of the case to a Pennsylvania federal court

. The district court found that the employment agreement was indeed a valid contract, and that its forum

- selection clause was also valid and permitted the parties to bring su it in any court in Pennsylvania

– state or federal. In evaluating the proper method for enforcing that clause, th e district court concluded that , after the Supreme Court’s decision in Atlantic Marine : motions to enforce a forum

- selection clause are evaluated under one of two similar frameworks. If the forum

selection clause specifies a United States district court in which a plaintiff should have brought the case, the Court analyzes the matter as a motion to transfer under 28 U.S.C. § 1404(a). If the clause does not identify such a district court, the Court considers the matter under the residual doctrine of forum non conveniens. Because the clause in the Qualtek employment agreement encompassed multiple
sta te and federal courts instead of a particular federal district , the district court

Case: 16-13477 Date Filed: 10/09/2018 Page: 4 of 145 evaluate d the clause’s enforceability u nder the doctrine of forum non conveniens. Finding no “ unusual circumstances in which such a clause should be disregarded,” the district court dismiss ed the suit for forum non conveniens

. Hisey then filed a Motion to Alter, Amend, or Reconsider under Federal Rule of Civil Procedure 59(e) and, alternatively, for Relief from Judgment or Order under Rule 60(b)

. Hisey argued that the district court erred in concluding that Atlantic Marine supported

– indeed, required

- dismissal pursuant to the forum
non conveniens doctrine

. Instead, a ccording to Hisey , the district court should have sua sponte converted the motion to dismiss into a motion to transfer pursuant
to 28 U.S.C. § 1404(a), and transferred the case to the appropriate Pennsylvania federal court

. Hisey asked the district court , for the first time, to transfer the case to the Eastern District of Pennsylvania , or to at least cl arify that dismissal was without prejudice to refil ing a complaint in an appropriate forum.
T he district court denied Hisey’s motion. The court stood by its conclusion that Atlantic Marine s upport ed dismissal under the doctrine of forum non
conveniens in the situation where , like this one, the forum

- selection clause does not

“ specify a single United States district court in which the case should have been brought

. ” The court also denied as moot Hisey’s request for a dismissal without prejudice, noting that a forum non conveniens dismissal is, by default , without prejudice under Fed eral Rule of Civil Procedure 41(b)

.

Case: 16-13477 Date Filed: 10/09/2018 Page: 5 of 146 This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291 because di smissal for forum non conveniens constitutes a final , appealable order

. King v. Cessna Aircraft Co. , 562 F.3d 1374, 1379 (11th Cir. 2009 ) (per curiam)

. II. Hisey raises two issues on appeal. First, Hisey contends that the district
court erred in d ismissing his case pursuant to the forum non conveniens doctrine instead of transferring it to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a)

. Second, Hisey argues that even if dismissal was procedurally
correct under Atlantic Marine , “the district court nonetheless erred by failing to fu lfill its obligation to ensure [ Hisey’s ] ability to re

- file his lawsuit in Pennsylvania without undue inconvenience or prejudice”

– for example, by requiring Defendants
to waive any statute of limitations defense. 2
A dismissal under the forum non conveniens doctrine is typically reviewed for an abuse of discretion. GDG Acquisitions LLC v. Gov't of Belize , 849 F.3d 1299, 1312 (11th Cir. 2017); Feggestad v. Kerzzner Int’l Bahamas Ltd. , 843 F.3d 915, 918 (11th Cir. 2016)

. In this case, however, His ey does not assert that the district court reached the wrong conclusion after weighing the relevant factors, but that the district court misapplie d the law as set forth in Atlantic Marine

. We

2 Hisey does not appeal the district court’s finding that the Qualtek employment agreement and its forum

- selection clause are valid and enforceable, nor does he challenge the court’s ultimate conclusion that application of the forum non conveniens factors compelled dismissal.

Case: 16-13477 Date Filed: 10/09/2018 Page: 6 of 147 “ review de novo the district court’s application of the law. ” Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l , 238 F.3d 1300, 1308 (11th Cir. 2001) ; see also Parker v. Sec'y for Dep't of Corr. , 331 F.3d 764, 768 (11th Cir. 2003) (legal questions are reviewed de novo ). 3
T he district court’s subsequent order denying post

- judgment relief under Rules 59(e) and 60(b) is reviewed for an abuse of discretion. Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehab. Servs. , 225 F.3d 1208, 1216 (11th Cir. 2000). “[W]hen employing an abuse

- of

- discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” United States v. Frazier , 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)

. Generally, o nly “newly

- discovered evidence or manifest errors of law or fact” will serve as bases for relief from judgment under Rule 59(e). Arthur v. King , 500 F.3d 1335, 1343 (11th Cir. 2007). Relief under Rule 60(b)(6) “is an extraordinary remedy w hich may be invoked only upon a showing of exceptional circumstances.” Crapp v. City of Miami Beach , 242 F.3d 1017, 1020 (11th Cir. 2001) (quoting Griffin v. Swim

- Tech Corp. , 722 F.2d 677,

3 Some of our sister circuits ha ve observed that the standard used to review a forum non conveniens dismissal based specifically on the existence of a valid forum

- selection clause is unsettled after Atlantic Marine

. See Collins v. Mary Kay, Inc. , 874 F.3d 176, 180 (3d Cir. 2017); Weber v. PACT XPP Techs., AG , 811 F.3d 758, 767 (5th Cir. 2016); U.S. Smoke & Fire Curtain, LLC v. Bradley Lomas Electrolok, Ltd. , 612 F. App'x 671, 672 n.2 (4th Cir. 2015) (per curiam) ; Martinez v. Bloomberg LP , 7 40 F.3d 211, 217 (2d Cir. 2014)

. We do not addr ess this issue because Hisey cannot prevail under the de novo standard that is most beneficial to him.

Case: 16-13477 Date Filed: 10/09/2018 Page: 7 of 148 680 (11th Cir. 1984)).
II I. We are first asked to decide whether the district court misapplied the law when it dismiss ed Hisey’s complaint on forum non conveniens grounds, rather than sua sponte transferring the case under § 1404(a) to a federal court in Pennsylvania pursuant to the parties’ forum

- selection clause

. We begin our analysis with a discussion of Atlantic Marine

. A. Atlantic Marine i nvolved a payment dispute under a contract contain ing a forum

- selection clause requiring suit to be filed “ in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division. ” 134 S. Ct. at 575. Notwithstanding this provision , the plaintiff sued Atlantic Marine in federal court i n the Western District of Texas

. Atlantic Marine moved to dismiss for “ improper venue ” under Federal Rule of Civil Procedure 12(b)(3) and “ wrong venue ” under 28 U.S.C. § 1406(a)

. Alternatively, Atlantic Marine requested a transfer to t he Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a ) and the parties’ forum

- selection clause. The district court denied both request s , finding that while transfer, not dismissal ,
was indeed the appropriate putative remedy, Atlantic Marine had not shown the balance of public and private interest factors favor ed a transfer u nder § 1404(a)

.

Case: 16-13477 Date Filed: 10/09/2018 Page: 8 of 149 T he F ifth Circuit affirmed on all grounds. In re Atl. Marine Const. Co., Inc. , 701 F.3d 736 (5th Cir. 2012)

. The Supreme Court granted certiorari to address “ [t] he procedure that is available for a defendant in a civil case who seeks to en force a forum

- selection clause. ” Atl. Marine , 134 S. Ct. at 575. In a unanimous decision, the Supreme Court held that that if suit has been filed in a forum that satisfies the federal venue requirements (typically those set forth in 28 U.S.C. § 1391(b)), a party may not enforce a forum

- selection clause by seeking dismissal under ei ther § 1406(a) or Rule 12(b)(3)

. Id. at 577

- 79 ( “[A] forum

- selection clause does not render venue in a court ‘wrong’ or ‘improper . . . .”)

. Because the only two procedural grounds for dismissal raised by Atlantic Marine were § 1406(a) and Rule 12(b)(3) , the Supreme Court affirmed the decision of the lower courts to deny the motion to dismiss. 4 Id. Having eliminated § 1406(a) and Rule 12(b)(3) as procedural vehicles to enforce a forum

- selection clause, the Supreme Court then identified the proper mechanism to use in two specific s cenarios. First, the Supreme Court affirmed that , with certain “ adjustments, ” § 1404(a) “ provides a mechanism for enforcement

4 The Supreme Court expressly declined to consider the position advanced in an amicus brief that Rule 12(b)(6) is a proper procedure through which to obtain dismissal of a suit filed “in a district other than the one specified in a valid forum

- selection clause,” since Atlantic Marine had not sought dismissal under 12(b)(6), and neither party had “brief[ed] the Rule’s application to th[e] case at any stage of th[e] litigation.” Atl. Marine , 134 S. Ct. at 580.

Case: 16-13477 Date Filed: 10/09/2018 Page: 9 of 1410 of forum

- selection clauses that point to a particular federal district. ” Id. The se adjustments require a court evaluating a motion to transfer pursuant to a forum

selection clause to afford no weight to either the plaintiff’s selected forum or the parties’ private interests, and to ignore the choice

- of

- law rules of the original

venue. Atl. Marine , 134 S. Ct. at 581

- 82. “For the remaining set of cases calling for a nonfederal forum, § 1404(a) has no application, but the residual doctrine o f forum non conveniens ‘has continuing application in federal courts. ’ ” Id. at 580 (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422 (2007) ). Specifically, “the appropriate way to enforce a forum

- selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens

. ” Id. Because Atlantic Marine had requested a transfer, and because the forum

selection clause pointed to a particular federal district (the Norfolk Division of the Eastern District of Virginia), the Supreme Court found that “the Court of Appeals correctly identified § 1404(a) as the appropriate provision to enforce the forum

selection clause in th[at] case.” I d. at 581. The Supreme Court remanded the case for proper application of the adjustments it had articulated for a § 1404(a) transfer evaluation. I d. at 583

. Case: 16-13477 Date Filed: 10/09/2018 Page: 10 of 1411 B. The issue now before this Court is whether the forum

- selection clause i n the Qualtek employment agreement is analyzed under the forum non conveniens doctrine , as the district court concluded, or instead pursuant to § 1404(a)

. Hisey asserts that the forum

- selection clause must be enforced under § 1404(a) because it encompasses at least on e federal forum to which the case could have been transferred

. Defendants contend that the forum non conveniens doctrine , not § 1404(a) , governs because the Qualtek forum

- selection clause does not “ point to a particular federal distric t,” but rather to all three federal districts in Pennsylvania and their many divisions

. See 28 U.S.C. § 118. The district court concluded that it could properly evaluate the Qualtek forum

- selection clause pursuant to the forum non conveniens doctrine

. W e find no error in that conclusion. To be sure, t his is not a situation in which the forum

selection clause require s the dispute to be litigated in a non

- federal forum

. See

e .g. , Pappas v. Kerzner Int'l Bahamas Ltd. , 585 F. App'x 962, 964 (11th Cir. 2014) (per curiam) (“[A] motion to dismiss for forum non conveniens . . . is the appropriate means to enforce a valid forum

- selection clause if that clause requires the dispute to be litigated in a non

- federal forum.” (emphasis added)) ; Mueller v. Apple Leisure Corp. , 88 0 F.3d 890, 893

- 94 (7 th Cir. 2018) (same). But neither is it a situation in which the forum

- selection clause limit s venue to a particular federal Case: 16-13477 Date Filed: 10/09/2018 Page: 11 of 1412 court . N one of the parties filed a motion to transfer or argued for a transfer

. See Atl. Marine , 571 U.S. at 52 (“ When a defendant files [a motion to transfer under § 1404(a) ] , we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parti es clearly disfav or a transfer.”). And c ontrary to Hisey’s argument, nothing in Atlantic Marine required the district court to sua sponte treat Defendants’ motion to dismiss as a motion to transfer , 5 since Atlantic Marine was decided “ in the context of a transfer m otion under 28 U.S.C. § 1404(a), ” Stiles v. Bankers Healthcare Grp., Inc. , 637 F. App'x 556, 559 (11th Cir. 2016) (per curiam) , and therefore addressed the standards governing such a motion. Atl. Marine , 134 S. Ct. at 575 (“[I]n the present case, both the Distr ict Court and the Court of Appeals misunderstood the standards to be applied in adjudicating a § 1404(a) motion in a case involving a forum

- selection clause

. . . .” ).
T he district court did not err i n evaluating the parties’ forum

- selection clause and dismissing the case under the forum non conveniens doctrine as it did

. C. Hisey next argues that the district court abused its discretion in refusing t o

5 That is not to say a district court cannot sua sponte convert a motion to dismiss into a § 1404(a) transfer motion where a forum

- selection clause c ontemplates a different federal forum. Indeed, w e have a “long

- approved practice of permitting a court to transfer a case sua sponte [under § 1404(a)],” so long as the parties are given notice and the opportunity to respond prior thereto. Tazoe v. Airbus S.A.S. , 631 F.3d 1321, 1336 (11th Cir. 2011) (quotation omitted).

Case: 16-13477 Date Filed: 10/09/2018 Page: 12 of 1413 vacate the dismissal order and transfer his case to the Eastern District of Pennsylvania pursuant to either Rule 59(e) or 60(b ). H isey’s argument fails because , as we have just discuss ed , the district court did not err in dismissing his

case . Moreover, prior to the dismissal, Hisey never raised transfer as an alternative way to enforce the forum

- selection clause , instead insisting that Pennsylvania
courts would not provide an adequate forum for the litigation. That his strategy proved unsuccessful hardly justifies relief under Rule 59 or 60. Galbert v. W. Caribbean Airw ays , 715 F.3d 1290, 1295 (11th Cir. 2013). T he district court did not abuse its discretion in denying post

- judgment relief

. IV . Finally , Hisey argues that the district court erred by dismissing his case without first safegua rding his right to proceed in a nother forum by , for example, ordering Defendants to waive their statute of limitations defense

. H isey asks us to modify the district court’s order to condition dismi ssal on Defendants’ agreement
not to raise this defense once the case has been refil ed in Pennsylvania. This Court certainly has the authority to modify a district court’s order. 28 U.S.C. § 2 106. We have , in fact, modified orders dismissing for forum non
conveniens to contain certain protective conditions, including a statute of limitations waiver. E.g. , Aviation One of Fla. , Inc. v. Airborne Ins. Consultants (PTY), Ltd, 16

- 16187,

--- F. App’x

--- , 2018 WL 359998, at *12 (11th Cir. Jan. 11,

Case: 16-13477 Date Filed: 10/09/2018 Page: 13 of 1414 2018) (per curiam) ; King , 562 F.3 d at 1384 ; Leon v. Millon Air, Inc. , 251 F .3d 1305, 1315

- 16 (11th Cir. 2001). However, in tho se cases, the defendants had previously agreed to such conditions ( Aviation One ; Leon ), or there was no foru m selection clause involved ( King ). As noted above, c our ts do not afford any weight to a plaintiff’s choice of forum or to the parties’ private interests when deciding whether to enforce a valid forum

- selection clause

. Atl. Marine , 134 S. Ct. at 5 81

- 82 . Accordingly, dismissal for forum non conveniens of a lawsuit brought by one who “has violated a contractual obligation by filing suit in a forum other th an the one specified in a valid forum

- selection clause ” results in “no injustice on the plaintiff ” who “lose [s] out completely[] through the running of the statute of limitations

. ” Id. at 583 n.8. That is certainly so for Hisey, whose claims were not yet time

- barred when Defendants moved to dismiss, but who i nsisted that Florida

– and only Florida

– was the prop er forum in which to litigate his claims. W e do no t find any basis to modify the district court’s order of dismissal. Cf. Ald ana v. Del Monte Fresh Produce N.A., Inc. , 741 F.3d 1349, 1358 (11th Cir. 2014) (“a party cannot avoid an initial forum non conveniens dismissal based on the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct”). The judgment of the district court is AFFIRMED. Case: 16-13477 Date Filed: 10/09/2018 Page: 14 of 14