TOTAL QUALITY LOGISTICS, LLC,

v.

TRADE LINK CAPITAL, INC., ET AL.,

EMAS, J.

INTRODUCTION Total Quality Logistics, LLC, defendant below, appeals a nonfinal order denying its motion to dismiss the amended complaint filed by Trade Link Capital, Inc. and Taste Trackers, Inc., plaintiffs below. Total Quality Logistics sought dismissal based on improper venue, contending that a mandatory forum selection clause in the written agreements between the parties required that Clermont County, Ohio serve as the exclusive venue for any dispute arising in connection with any transaction between the parties. Because the forum selection clause was presumptively valid and enforceable, and because Plaintiffs failed to meet their burden below—to show that this presumptively valid and enforceable forum selection clause was unjust, unreasonable, or otherwise unenforceable—we reverse and remand with directions to dismiss the amended complaint against Total Quality Logistics. FACTUAL BACKGROUND Trade Link Capital and Taste Trackers (together, Plaintiffs) entered into a business relationship with Total Quality Logistics, whereby Total Quality Logistics would arrange transportation of cargo for Plaintiffs. At the inception of the relationship, Trade Link Capital and Taste Trackers each signed a written agreement with Total Quality Logistics. Each agreement contained an identical forum selection clause providing that Clermont County, Ohio “shall be the exclusive venue with respect to any claim, counterclaim or dispute arising in connection with any transactions, loads, or other business between Total Quality Logistics and applicant.” In August 2019, one such cargo shipment was lost and/or stolen in transit to its destination. Plaintiffs contend that, before requesting transport of the subject cargo, they procured insurance from Total Quality Logistics to protect themselves in the event the cargo was lost or stolen. When Total Quality Logistics refused to pay Plaintiffs for the lost cargo shipment, Plaintiffs sued Total Quality Logistics in an eight-count complaint alleging various state law claims (e.g., breach of agreement to insure, fraudulent misrepresentation) and also seeking damages under the federal Carmack Amendment.¹

Total Quality Logistics moved to dismiss the complaint, relying on the mandatory forum selection clause contained in the parties’ written agreements. Total Quality Logistics also contended that Plaintiffs could not state a valid claim under the federal Carmack Amendment because Total Quality Logistics is a broker, not a carrier, and the Carmack Amendment imposes liability only upon carriers. See Nat'l Union Fire Ins. Co. of Pittsburgh v. All Am. Freight, Inc., No. 14-CIV-62262, 2016 WL 633710, at *7 (S.D. Fla. Feb. 17, 2016) (“In general, the Carmack Amendment governs interstate cargo claims, controls and limits the liability of common carriers for in-transit cargo, and preempts common or state law remedies that increase a common carrier's liability beyond the actual loss or injury to the property.”) In further support of its motion to dismiss, Total Quality Logistics filed an affidavit from its risk manager, setting forth the business relationship between the parties and attaching and authenticating the parties’ signed, written agreements which included the mandatory forum selection clause

DCA 1999) (citing First Pacific Corp. v. Sociedade de Empreendimentos e Construcoes, Ltd., 566 So. 2d 3 (Fla. 3d DCA 1990)) (holding that a forum selection clause was inapplicable to FDUPTA claim—i.e., it was severable from the other claims—requiring it to be litigated separately) with Fairbanks Contracting & Remodeling, Inc. v. Hopcroft, 169 So. 3d 282, 283 (Fla. 4th DCA 2015) (“Whether a forum selection provision in a contract applies to an FDUTPA claim depends on the circumstances, including the language employed in the clause.”) providing that Clermont County, Ohio “shall be the exclusive venue with respect to any. . . dispute arising in connection with any transactions, loads, or other business” between Plaintiffs and Total Quality Logistics. Plaintiffs filed a memorandum in response to Total Quality Logistics’ motion to dismiss, but provided no sworn proof or evidence to support its position.² Plaintiffs contended that the forum selection clause (1) was unenforceable under the Carmack Amendment because that federal law contains its own special venue provision, see 49 U.S.C. § 14706(d); and (2) was invalid as contrary to public policy because Total Quality Logistics’ alleged conduct amounted to the unlicensed sale of insurance in violation of state law. The trial court held a hearing on the motion to dismiss, at which no live testimony was presented and no depositions were offered or introduced. At the conclusion of the hearing, the trial court announced its ruling denying the motion to dismiss, and later entered an order denying the motion “for the reasons set forth in the record.” A review of the transcript, however, shows the trial court provided no reasons for its ruling, and made no findings regarding (1) whether Total Quality Logistics was a motor carrier or broker (central to the applicability of the federal Carmack Amendment claim); (2) whether (and why) the forum selection clause was unenforceable as to the state law claims; or (3) whether application of the forum selection clause violated public policy. This appeal follows.³

ANALYSIS AND DISCUSSION The forum selection clause contained in the written agreement between Total Quality Logistics and Plaintiffs provides: The state courts located in Clermont County, Ohio shall have exclusive and irrevocable jurisdiction and shall be the exclusive venue with respect to any claim, counterclaim, or dispute arising in connection with any transactions, loads, or other business between Total Quality Logistics and [Plaintiff].

Plaintiffs do not dispute that they each signed an agreement containing this provision. On its face, this is a valid, enforceable, and mandatory forum selection provision.4 Moreover, “[b]ecause Florida law presumes that forum

exceptional cases.’”) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)) (Kennedy, J., concurring)). To establish the “unjust or unreasonable” nature of a forum selection clause, the party seeking avoidance must show that enforcement of the clause would result in “no forum at all.” Espresso Disposition, 105 So. 3d at 595; Est. of Stern v. Oppenheimer Tr. Co., 134 So. 3d 566, 568 (Fla. 3d DCA 2014) (“A party seeking to avoid enforcement of a mandatory forum selection clause bears a heavy burden of establishing that the enforcement is unjust or unreasonable and must demonstrate that the contractually designated forum essentially amounts to ‘no forum at all,’ thereby depriving the party of its day in court.”) Once Total Quality Logistics submitted the affidavit and the written agreements containing the presumptively valid and enforceable forum selection clause agreed to by the parties, the burden shifted to Plaintiffs to show that the forum selection clause was “unjust or unreasonable”—in essence, that Clermont, Ohio amounts to “no forum at all.” Further, and as to the claim filed pursuant to the Carmack Amendment, Plaintiffs would have had to provide evidence to establish (or at least create a disputed issue of fact whether) the Carmack Amendment (49 U.S.C. §14706) is applicable to the cargo shipment at issue and renders the contractual forum selection clause unenforceable. However, Plaintiffs failed to meet its burden⁵ to overcome the presumptively valid and enforceable mandatory forum selection clause.⁶ Notwithstanding the absence of any such oral findings, the subsequent written order provided only that the motion to dismiss was denied “for the reasons set forth in the record.”7

CONCLUSION Because Plaintiffs failed to meet their burden to establishing that the presumptively valid and enforceable mandatory forum selection clause was unjust, unreasonable, or otherwise unenforceable in the instant lawsuit, the trial court erred in denying Total Quality Logistics’ motion to dismiss for improper venue. We reverse and remand with directions to dismiss the amended complaint against Total Quality Logistics and for further proceedings consistent with this opinion.