Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 1 of 18

ATTORNEYS FOR APPELLANT

Danny E. Glass

Adam S. Glass

Fine & Hatfield P.C.

Evansville, Indiana

Gregory L. Mast

Stephen A. Kahn

Fields Howell, LLP

Atlanta, Georgia

ATTORNEYS FOR APPELLEES 

U.S. SECURITY ASSOCIATES,

INC.; JENNIFER FREEMAN;

BRIAN HILL; AND CARL NELSON

Edward M. O’Brien

Wilson Elser Moskowitz Edelman 

& Dicker LLP

Louisville, Kentucky

I N T H E

COURT OF APPEALS OF INDIANA

Perdue Farms, Inc.,

Appellant,

v.

L&B Transport, LLC; U.S. 

Security Associates, Inc.; 

William Richardson; Jennifer 

Freeman; Brian Hill; Carl 

Nelson; ABC Corporation,

Appellees.

September 5, 2023

Court of Appeals Case No.

22A-PL-2989

Appeal from the Daviess Circuit 

Court

The Honorable Gregory A. Smith, 

Judge

Trial Court Cause No.

14C01-2008-PL-491

Opinion by Judge Bailey 

Judge Kenworthy concurs. 

Judge Crone dissents with separate opinion. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 2 of 18

Bailey, Judge.

Case Summary

[1] In this interlocutory appeal, Perdue Farms, Inc. (“Perdue”) appeals the trial

court’s order granting a motion to dismiss its complaint against U.S. Security

Associates, Inc. (“U.S. Security”) and U.S. Security’s employees Jennifer

Freeman, Brian Hill, and Carl Nelson (collectively, “the Employees”). Perdue

raises two issues for our review, which we revise and restate as whether the

court erred when it granted U.S. Security and the Employees’ motion to dismiss

the complaint pursuant to a forum selection clause. We reverse and remand

with instructions.

Facts and Procedural History

[2] Perdue is a corporation incorporated under the laws of Maryland. It is

registered to do business in Indiana and owns and operates a poultry processing

plant (“the Plant”) in Daviess County, which processes approximately one

million pounds of meat per day. On September 16, 2015, Purdue entered into a

service agreement (“the Agreement”) with U.S. Security pursuant to which

U.S. Security agreed to provide “security services” to Perdue at the Plant.

Appellant’s App. Vol. 2 at 116. The agreement included the following forum

selection clause:

This Agreement shall be governed by, and construed in 

accordance with, the laws of the State of Maryland. Any lawsuit 

filed by either party arising from or related to this Agreement 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 3 of 18

shall be brought in the United States District Court for the 

District of Maryland. The parties hereby consent to the 

jurisdiction of said court. 

Id. at 126.

[3] On August 18, 2018, William Richardson, who was employed by L&B 

Transport (“L&B”) made an unannounced delivery to the Plant outside of 

normal delivery hours.1 When Richardson arrived at the Plant’s gate, he 

informed the Employees that he was delivering bleach. The Employees did not 

verify Richardson’s statement but allowed him into the Plant and directed him 

to the bleach tank. Richardson then connected his truck to the bleach tank and 

began filling it. Richardson did not monitor the transfer process but instead 

returned to the interior of his truck. 

[4] Contrary to his statements to the Employees, Richardson was not transporting 

bleach but was transporting aluminum chloride.2 When Richardson transferred 

the aluminum chloride into the bleach tank, a “chemical reaction” ensued that 

caused “severe amounts of fog and foam to enter multiple rooms of the Plant.” 

Id. at 26. As a result, Perdue had to shut the Plant down for multiple days to 

clean it and to repair or replace damaged equipment. Perdue sustained 

damages of over $1.2 million. 

1

 We have obtained the underlying facts from Perdue’s amended complaint. 

2

 Perdue has not made any allegation that Richardson acted intentionally or maliciously when he transferred 

the aluminum chloride into the bleach tank. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 4 of 18

[5] On May 19, 2021, Perdue filed an amended complaint in the Daviess Circuit 

Court against L&B; Alex C. Ferguson, LLC; Southern Ionics, Inc.; U.S. 

Security; William Richardson; the Employees; and ABC Corporation.

3

 In that 

complaint, Perdue alleged in relevant part as follows:

• Count 1: Negligence and Gross Negligence against Richardson and 

L&B;

• Count 2: Misrepresentation against Richardson and L&B; 

• Count 3: Negligent Hiring, Training, Retraining, and Supervising 

against L&B;

• Count 4: Negligence Per Se against Richard and L&B; 

• Count 5: Strict Liability against Richardson and L&B; 

• Count 8: Negligence against U.S. Security and the Employees

• Count 9: Negligent Hiring, Training, Retraining, and Supervising 

against U.S. Security; and 

• Count 10: Breach of Contract against U.S. Security 

[6] On June 16, U.S. Security and the Employees filed a Trial Rule 12(B)(3) 

motion to dismiss Perdue’s complaint pursuant to the forum selection clause or, 

in the alternative, to enforce the forum selection clause. U.S. Security and the 

Employees asserted that the forum selection clause was “valid, enforceable, and 

binding,” that “it is reasonable and just,” and that “there is no evidence of fraud 

or overreaching” from either party. Id. at 103. They further asserted that it was 

“freely negotiated and bargained-for between two sophisticated, commercial 

entities.” Id. at 104. 

3

 Alex C. Ferguson, LLC and Southern Ionics, Inc. were subsequently dismissed as parties. L&B Transport, 

Richardson, and ABC Corporation are not involved in this appeal. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 5 of 18

[7] Perdue responded and asserted that, [u]nder the circumstances,” the Indiana 

court is “the only venue that is appropriate to address all of the claims raised in 

the lawsuit[.]” Id. at 135. Specifically, Perdue asserted that “enforcing the 

forum selection clause will result in multiple concurrent lawsuits” because there 

“are claims and parties . . . that the forum selection clause cannot apply to.” Id. 

at 136. Perdue maintained that, if the court were to grant the motion to 

dismiss, the Indiana lawsuit would “still continue” as to certain parties, 

including Richardson and L&B, and it would be “forced to file a separate action 

involving the same facts and issues” against U.S. Security and the Employees in 

Maryland. Id. Thus, Perdue asserted that the forum selection clause is “not 

enforceable under the circumstances.” Id. at 139 (bold and capitalization

removed). In the alternative, Perdue argued that the Employees could not rely 

on the forum selection clause because they “were not parties or third-party 

beneficiaries” to the agreement. Id. at 143. 

[8] U.S. Security and the Employees replied and asserted that their liability “is not 

‘inseparably tied’ to nor contingent upon the liability of any other defendant in 

this action.” Id. at 153. In particular, they alleged that “[w]hether Perdue 

proves its breach of contract or negligence claims against [them] has no bearing 

or influence on Perdue’s proof of liability of or ability to recover against” the 

other defendants. Id. U.S. Security and the Employees further asserted that the 

Employees were in privity with U.S. Security with respect to the Agreement 

such that the forum selection clause applied to the Employees. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 6 of 18

[9] On October 13, 2022, the court entered its order granting U.S. Security and the 

Employees’ motion to dismiss. Specifically, the court found that the forum 

selection clause was “valid and enforceable” and that Perdue’s claims against 

U.S. Security and the Employees “are governed by the forum selection clause.” 

Appellant’s App. Vol. 2 at 19. This interlocutory appeal ensued. 

Discussion and Decision

[10] Perdue contends that the trial court erred when it granted U.S. Security and the 

Employees’ motion to dismiss. The parties both agree that our review of this 

issue is de novo.

4

 See Appellant’s Br. at 14-15; Appellees’ Br. at 14 n.7. Perdue 

specifically contends that the court erred when it granted the motion to dismiss 

based on the forum selection clause because, under the circumstances, that 

clause was not valid and enforceable. 

[11] It is well settled that parties to a contract “are generally free to bargain for the 

terms that will govern their relationship.” O’Bryant v. Adams, 123 N.E.3d 689, 

692 (Ind. 2019). Further, Indiana “puts a premium on parties’ freedom of 

contract, and we presume that contracts represent the parties’ freely bargained 

agreements.” Id. at 694. As such, this Court has stated that “‘forum selection 

provisions are enforceable if they are reasonable and just under the 

circumstances and if there is no evidence of fraud or overreaching such that the 

4

Indeed, the court ruled on a paper record. In such instances, our review is de novo. See Sunburst Chemical, 

LLC v. Acorn Distributors, Inc., 922 N.E.2d 652, 653 (Ind. Ct. App. 2010). 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 7 of 18

agreeing party, for all practical purposes, would be deprived of a day in court.’” 

Carmeuse Lime & Stone v. Illini State Trucking, Inc., 986 N.E.2d 271, 276-77 (Ind. 

Ct. App. 2013). Additionally, “the provision must have been freely 

negotiated.” Id. at 277. And “the party claiming [unfairness] should bear a 

heavy burden of proof.” Id. (citations omitted; alteration in original). Thus, to 

determine whether a forum selection is valid, we must examine whether it is 

freely negotiated and just and reasonable under the circumstances. See Farm 

Bureau General Ins. Co. of Michigan v. Sloman, 871 N.E.2d 324, 329 (Ind. Ct. App. 

2007). 

[12] Perdue does not make any argument to suggest that the forum selection clause 

was not freely negotiated. Indeed, while Perdue is the party seeking to 

invalidate the forum selection clause, that clause was clearly drafted to benefit 

Perdue. Again, the forum selection clause provides that any lawsuit arising 

from or related to the Agreement shall be filed in the United States District 

Court for the District of Maryland. And Perdue is a “Maryland corporation” 

with a “primary corporate location” in Salisbury, Maryland. Appellant’s App. 

Vol. 2 at 116. Further, both parties are large companies with seemingly equal 

bargaining power. Thus, we find that the forum selection clause was freely 

negotiated. 

[13] Still, Perdue contends that the forum selection clause is not just and reasonable 

under the circumstances. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 

(1991), the Supreme Court outlined several factors to consider in determining 

whether a forum selection clause is just and reasonable. In that case, the 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 8 of 18

Supreme Court validated a forum selection clause included on a cruise line 

ticket because: (1) it limited the fora in which the cruise line could potentially 

be subject to suit; (2) it dispelled any confusion about where suits arising from a

conflict must be brought and defended; and (3) the cruise line’s customers 

received a benefit in the form of reduced fares that reflected the savings that the 

cruise line enjoyed by limiting the fora in which it could be sued. Id. at 593-94. 

[14] While the Court’s decision in Carnival is based on federal law and not binding 

on Indiana state courts, “Indiana has adopted the Supreme Court’s ruling from 

Carnival as it relates to the validity of forum selection clauses.” Sloman, 871 

N.E.2d at 329. Furthermore, our Court added an additional consideration 

beyond the three identified by the Supreme Court: “the threat of multiple 

lawsuits,” that is, where a forum selection clause restricting suit to a particular 

venue “will likely lead to multiple lawsuits involving the same parties and the 

same issues of liability.” Id. And this Court identified that factor to “be of 

paramount concern” because, “[g]enerally speaking, multiple litigation 

involving similar suits is not favored.” Id.

[15] On appeal, Perdue asserts that, under the particular circumstances of this case, 

the forum selection clause is not just and reasonable. In particular, Perdue 

contends that “enforcing the [forum selection clause] will result in multiple 

litigation involving the same general issues[.]” Appellant’s Br. at 17. Perdue 

contends that the “central issue in this case is the apportionment of liability” 

between U.S. Security/the Employees and L&B/Richardson. Id. And Perdue 

asserts that L&B and Richardson “are not subject to” the Agreement or the 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 9 of 18

forum selection clause and that neither is a “Maryland citizen nor do they have 

any apparent connection to Maryland” such that Maryland would have no 

personal jurisdiction over L&B or Richardson. Id. at 18. Thus, Perdue 

contends that, if the forum selection clause is enforced, it “will have no choice 

but to litigate a separate action in Maryland against [U.S. Security and the 

Employees], while also maintaining this Lawsuit [in Indiana] against” L&B 

and Richardson. Id. Purdue maintains that “[b]oth lawsuits would be based on 

the same [i]ncident, the same facts and legal issues, and virtually the same 

discovery and exchange of evidence.” Id. And Perdue contends that the two 

lawsuits “will almost certainly lead to inconsistent verdicts and apportionment 

of liability[.]” Id. at 20. 

[16] To support its assertion, Perdue relies on this Court’s opinion in Sloman. In 

that case, Sloman was involved in an automobile accident with Janet Lund. 

Sloman was insured by Farm Bureau General Insurance Company of Michigan 

(“Farm Bureau”). 871 N.E.2d at 326. Sloman filed a claim with Farm Bureau, 

which ultimately denied his claim. Id. at 327. Sloman filed suit against Farm 

Bureau in Indiana despite a forum selection clause in his policy requiring him 

to file suit in the county and state in which he had purchased the policy, which 

was Cass County, Michigan. Id. Based on the forum selection clause, Farm 

Bureau filed a motion to dismiss or, in the alternative, a motion for summary 

judgment. Id. The court denied Farm Bureau’s motion. 

[17] On appeal, Farm Bureau asserted that the forum selection clause was just and 

reasonable. This Court first noted “the unique challenges” presented by the 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 10 of 18

case because it did not just focus “on the two parties in privity of contract 

(Sloman and Farm Bureau)” but also “additionally considered Lund, the 

uninsured motorist.” Id. at 328. The Court then noted that it must “determine 

what effect a third party uninsured motorist has on” its analysis. Id. It then 

considered the “two unique components,” including “(1) the potential liability 

and damages owed by Lund to Sloman and (2) Farm Bureau’s liability to 

Sloman under his uninsured motorist provision.” Id.

[18] The Court concluded that the forum selection clause had been freely negotiated 

and then turned to whether it was just and reasonable under the circumstances. 

Id. at 330. In its analysis, the Court specifically noted that there was a “case 

within a case” because Farm Bureau would only be liable to Sloman if the 

accident was the fault of Lund and if Sloman suffered damages. Thus, the 

Court stated that “any action against Farm Bureau on the contract is 

inseparably tied to the legal liability of Lund, and Sloman’s action against Lund 

is but the first link in an unbroken chain leading to the contractual liability of 

Farm Bureau.” Id. The Court then turned to the three Carnival factors. 

[19] Regarding the first factor, the Court held that implementing the forum selection 

clause “would not result in a limitation of the fora in which it potentially could 

be subject to suit” because “even if Sloman were required to file suit against 

Farm Bureau in Michigan, any suit maintained against Lund must be filed in 

Indiana.” Id. at 331. Similarly, the Court concluded that the forum selection 

clause did not conserve judicial resources because it “le[d] to greater confusion 

and expenditure of greater judicial resources” due to suits in multiple states. Id. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 11 of 18

at 332. And it found no economic benefit to the customer because the forum 

selection clause “increase[d] the cost for both parties and fail[ed] to provide 

Farm Bureau with any certainty as to where a lawsuit may arise.” Id.

[20] After considering the three Carnival factors, the Court then turned to the 

consideration of “paramount concern”—whether the forum selection clause 

would result in multiple suits. Id. The Court specifically concluded that 

“enforcement of the clause would require Sloman to maintain his action against 

Lund in Indiana while also having to litigate the same case against Farm 

Bureau in Michigan.” Id. at 333. Because “none of the [Carnival] policy 

reasons” were present and because “avoidance of multiple lawsuits involving 

the same parties and the same issues has historically been of great concern in 

Indiana,” the Court held that the Indiana venue was “proper” and affirmed the 

court’s denial of Farm Bureau’s motion. Id. 

[21] Here, Perdue contends that Sloman is analogous such that we should reach a 

similar result. On the other hand, U.S. Security and the Employees argue that 

the Agreement’s forum selection clause is valid and enforceable. First, they 

assert that “the distance between Indiana and the preselected forum of

Maryland may be traversed by automobile within several hours.” Appellees’ 

Br. at 17 (quotation marks omitted). Second, they contend that Perdue has not 

presented any “evidence of fraud or overreaching” and that “[n]o such evidence 

exists.” Id. at 19. Finally, they contend that Sloman is inapplicable because

their liability “is not ‘inseparably tied’ to nor contingent upon the liability of 

any other defendant to this action.” Id. at 22. Rather, they maintain that each 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 12 of 18

“theory of liability advanced by Purdue against the other defendants is 

predicated on separate and distinct factual allegations.” Id. at 23. 

[22] To support their argument, U.S. Security and the Employees rely on this 

Court’s opinion in Carmeuse. In that case, John Ruiz, an employee of a 

subcontractor of Illini State Trucking (“Illini”), was injured while on the 

property of Carmeuse. 986 N.E.2d at 272. Ruiz filed a complaint against 

Carmeuse but ultimately settled out of court. Id. at 272-73. Carmeuse then filed 

a complaint against Illini in Lake Superior Court. 986 N.E.2d at 274. Illini 

filed a motion to dismiss the complaint based on a forum selection clause 

contained in an agreement between the two parties, which required any action 

to be filed in Pennsylvania. The trial court granted the motion to dismiss. Id. at 

275. 

[23] On appeal, this Court held that Carmeuse had not made any “claim that the 

forum selection clause was not freely negotiated.” Id. at 277. The Court also 

noted that, because Pennsylvania was Carmeuse’s principal place of business, it 

appeared as though the “forum selection clause was negotiated for” Carmeuse’s 

benefit.” Id. at 278. And the Court noted that the “distance between” Indiana

and Pennsylvania “may be traversed by automobile in several hours,” such that 

the Pennsylvania venue was not “too remote.” Id. at 279. As such, the Court 

held that the forum selection clause was not unjust or unreasonable and 

affirmed the court’s dismissal of the lawsuit. Id.
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 13 of 18

[24] Here, we agree with Perdue that the instant case is much more analogous to 

Sloman than to Carmeuse, and we hold that the forum selection clause is not just 

and reasonable under the facts of this case. First, as in Sloman, we note that this 

case presents a “unique challenge” that requires us to not only consider the 

parties to the contract—Perdue and U.S. Security/the Employees5—but also 

Richardson and L&B. 871 N.E.2d at 328. Perdue has alleged that Richardson, 

while employed by L&B, delivered aluminum chloride to the Plant and 

proceeded to empty it into a bleach container without supervising the process, 

which caused a chemical reaction and over $1.2 million in damages. Perdue 

also alleged that the incident occurred because the Employees allowed 

Richardson into the Plant after hours and directed him to the bleach containers 

without confirming that he was indeed delivering bleach. Based on those 

actions, Perdue filed a complaint against all relevant parties. It will be up to a 

fact-finder to determine whether any or all parties are liable and, if it finds all

parties to be liable, the amount for which each party is responsible for the 

damages. Consequently, any action against U.S. Security and the Employees is 

“inseparably tied” to the legal liability of Richardson and L&B. Id. at 330. 

[25] Further, there is no dispute that the forum selection clause does not apply to 

Richardson or L&B, and there is no dispute that a Maryland court would not 

have personal jurisdiction over either Richardson or L&B. As a result, if we 

5

 The parties dispute whether the Agreement applies to the Employees. Because we hold that the forum 

selection clause is unjust and unreasonable under the circumstances of this case, we need not decide whether 

the Agreement applies to Employees. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 14 of 18

were to enforce the forum selection clause, Perdue would be forced to litigate its

claims against U.S. Security and the Employees in Maryland while maintaining 

an action against Richardson and L&B in Indiana. That is the very problem 

Sloman seeks to avoid. Indeed, for those very reasons, the Carnival, factors are 

not present. Enforcing the forum selection clause would not limit the fora for a 

lawsuit, it would not conserve judicial resources, and it would not reduce costs. 

See id. at 331-32. In particular, we note that the result of enforcement of the 

forum selection clause would be two-fold. First, as discussed above, 

enforcement of the clause would require Perdue to maintain its action against 

Richardson and L&B in Indiana while having to litigate substantially the same 

case against U.S. Security and the Employees in Maryland, which would 

almost certainly result in differing, if not completely conflicting, outcomes for 

Perdue. Second, there is no dispute that Perdue, but not U.S. Securities or the 

Employees, have connections to Maryland. If we were to enforce the forum 

selection clause, an Indiana company and its employees would be required to 

defend themselves in Maryland, and all witnesses to the events that occurred in 

Indiana would be required to participate in a Maryland lawsuit, which does not 

conserve resources. 

[26] Finally, while we acknowledge that there are some similarities between the 

present case and Carmeuse, as this Court held in Sloman, the issue of multiple 

lawsuits is of “paramount concern[.]” 871 N.E.2d at 323. And the Court in 

Carmeuse specifically concluded that there was “no possibility of multiple 

lawsuits” because Carmeuse had already settled with Ruiz, who was a party 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 15 of 18

that would not have been bound by the forum selection clause contained in the 

contract between Carmeuse and Illini. Id. at 279. As such, Carmeuse is readily 

distinguishable from the instant case. 

[27] Under the specific circumstances of this case, where one incident resulted in a 

complaint against multiple parties—some of whom are subject to the forum 

selection clause and others who are not, enforcement of the forum selection 

clause would result in multiple lawsuits involving the same facts and evidence 

in multiple locations. We therefore hold that Perdue has met its heavy burden 

to demonstrate that enforcement of the forum selection clause would not be just 

or reasonable. 

Conclusion

[28] In sum, while we generally favor parties’ freedom of contract, under the 

particular facts of this case, the forum selection clause is not just and reasonable

because enforcing the forum selection clause would result in Perdue having to 

litigate two interrelated lawsuits involving the same parties, the same evidence, 

and the same issues in two different venues, which has historically been of great 

concern in Indiana. Accordingly, we reverse the trial court’s order granting 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 16 of 18

U.S. Security and the Employees’ motion to dismiss, and we remand for further 

proceedings.6 

[29] Reversed and remanded with instructions. 

Kenworthy, J., concurs.

Crone, J., dissents with separate opinion.

6

 Because we agree with Perdue that the forum selection clause should not be enforced under these specific 

circumstances, we need not address its argument that that the agreement does not apply to the Employees. 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 17 of 18

Crone, Judge, dissenting.

[30] I believe that Perdue has no valid basis for crying “foul” here and chickening 

out on the forum selection clause that it undoubtedly insisted on including in its 

contract with U.S. Security to shield it from being haled into court in Indiana.

[31] The majority observes that “Indiana ‘puts a premium on parties’ freedom of 

contract, and we presume that contracts represent the parties’ freely bargained 

agreements.’” Slip op. at 7 (quoting O’Bryant, 123 N.E.3d at 692). “[T]o 

determine whether a forum selection is valid, we must examine whether it is 

freely negotiated and just and reasonable under the circumstances.” Id. The 

majority acknowledges that “both parties are large companies with seemingly 

equal bargaining power” and correctly finds that “the forum selection clause 

was freely negotiated.” Id. at 8.

[32] But, for several reasons, I think that the majority has laid an egg in relying on 

Sloman to conclude that the clause is not just and reasonable under the 

circumstances. First, the disparity of the bargaining power between the insurer 

and the insured in Sloman was vast. Second, the Sloman court’s multiplelawsuits consideration was a dubious (and apparently spontaneous) add-on to 

the criteria set forth in Carnival. Third, the issues regarding liability in Sloman

would have been exactly the same in both lawsuits, since the second lawsuit 

would have affected only the coverage issue. Here, there could be different 

outcomes regarding liability among the various defendants, and there is nothing 
Court of Appeals of Indiana | Opinion 22A-PL-2989 | September 5, 2023 Page 18 of 18

unjust or unreasonable about forcing Perdue “to litigate its claims against U.S. 

Security and the Employees in Maryland while maintaining an action against 

Richardson and L&B in Indiana” pursuant to the forum selection clause that it 

freely bargained for. Id. at 14. The nonparty defense is tailor-made for such 

situations. Based on the majority’s reasoning, a party could avoid a forum 

selection clause that it freely agreed to simply by adding additional local parties 

as defendants.7

[33] As for the Carnival factors themselves, I find them to be of limited relevance in 

this case. Unlike a cruise ship, which may travel to and host customers from 

dozens of different jurisdictions, Perdue’s Indiana plant is stationary and likely 

operated and serviced almost exclusively by persons and entities that reside or 

are registered in Indiana; thus, Perdue could potentially be subject (or subject 

others) to suit only in Indiana or Maryland. That same consideration also 

dispels any confusion about where suits arising from a conflict must be brought 

and defended. And customer savings are not an issue in this dispute between 

two sophisticated corporate entities. In sum, Perdue should have to live with 

the contractual bargain that it freely struck with U.S. Security, and therefore I 

respectfully dissent.

7

In contracting with U.S. Security to provide security for its Indiana plant, Perdue should have reasonably 

anticipated that it might have to file suit against third-party Indiana residents as well as U.S. Security and the 

Employees, who I assume arguendo are privies. Thus, Perdue also should have reasonably anticipated the 

attendant concerns regarding multi-jurisdiction discovery, inconsistent verdicts, and claim preclusion that are 

trotted out as a parade of horribles in its appellate brief.