1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTARES REINSURANCE COMPANY Case No. 23-cv-00113-JST LIMITED, 8 Plaintiff, ORDER GRANTING MOTION TO 9 TRANSFER VENUE v. 10 Re: ECF No. 26 NATIONAL TRANSPORTATION 11 ASSOCIATES, INC., et al., Defendants. 12 13 14 Before the Court is Defendants’ motion to transfer venue. ECF No. 26. The Court will 15 grant the motion. 16 I. BACKGROUND 17 Plaintiff Antares Reinsurance Company Limited (“Antares”) is a reinsurance corporation 18 organized in Bermuda. ECF No. 1 ¶¶ 1, 10. Defendant National Transportation Associates, Inc. 19 (“NTA”) and Defendant Superior Risk Management, Inc. (“SRM”) are affiliate companies 20 organized in California. ECF No. 1 ¶¶ 2-3, 43. SRM and NTA maintain corporate offices in 21 Pleasanton, California, and Westlake, Texas. ECF No. 1 ¶¶ 2-3; ECF No. 28 ¶ 5. 22 In May 2017, United Specialty Insurance Company (“USIC”), which is not a party to this 23 suit, entered into two reinsurance agreements with NTA: the Quota Share Agreement (“QSA”) and 24 the General Agency Agreement (“GAA”). ECF No. 1 ¶ 9. Antares and other reinsurance 25 companies are parties to both the QSA and the GAA. ECF No. 1 ¶ 10. Both agreements contain a 26 forum-selection clause which states:

27 This agreement shall be deemed performable at the Company’s thereof/for the breach thereof],1 shall be in Tarrant County, Texas. 1 ECF Nos. 28-1 at 22; ECF No. 28-2 at 13. 2 In July 2021, USIC filed suit against SRM in the Northern District of California. United 3 Specialty Ins. Co. v. Superior Risk Mgmt., Inc. (“USIC Action”), No. 21-cv-05662 (N.D. Cal. July 4 31, 2021), ECF No. 1. In that case, NTA filed a third-party complaint against Antares.2 USIC 5 Action, No. 21-cv-05662, ECF No. 66. NTA’s third-party complaint asserts that jurisdiction in the 6 Northern District of California is proper for the “instant action.” Id. For the purposes of the USIC 7 Action, Antares, NTA, and USIC executed a venue stipulation, which states, in relevant part: 8 [T]he Parties waive the Tarrant County, Texas venue selection 9 provisions set forth above in the GAA and [QSA] solely for the purposes of the Current Dispute and agree that the United States 10 District Court for the Northern District of California is the appropriate venue for resolution of the Current Dispute and any related matters 11 that arise from the Current Dispute. All other arguments, rights and defenses of the Parties are unaffected by this stipulation and 12 agreement. Nothing herein shall be construed as: 1) a waiver of the venue selection provisions set forth above in the GAA and [QSA] for 13 any other claim or dispute among the Parties; or 2) as a waiver of any other terms, obligations and/or conditions set forth in the GAA and 14 [QSA]. 15 ECF No. 28-4 at 3. The USIC Action remains pending. 16 On January 10, 2023, Antares initiated the present action against NTA and SRM in the 17 Northern District of California, alleging wrongdoing arising from the QSA and GAA, including 18 breach of those agreements. Id. 19 On April 14, 2023, NTA and SRM filed the instant motion to transfer venue. ECF No. 26. 20 Antares opposes the motion. ECF No. 41. 21 II. JURISDICTION 22 The Court has jurisdiction pursuant to

. 23 III. LEGAL STANDARD 24 “For the convenience of parties and witnesses, in the interest of justice, a district court may 25 1 The language of the forum-selection clauses varies minimally: the QSA uses “or any breach 26 thereof,” while the GAA uses “or for the breach thereof.” ECF Nos. 28-1 at 22; ECF No. 28-2 at 13. 27 1 transfer any civil action to any other district or division where it might have been brought or to 2 any district or division to which all parties have consented.”

(a). Where the 3 parties’ contract contains a valid forum-selection clause, “Section 1404(a) . . . provides a 4 mechanism for enforcement of forum-selection clauses that point to a particular federal district.” 5 Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. for W. Dist. of Tex.,

(2013). 6 Generally, in evaluating a motion to transfer under Section 1404(a), the court considers 7 whether venue would be proper in the transferee district, then weighs the convenience of parties, 8 the convenience of witnesses, and the interest of justice.

(a). Where there is a 9 forum-selection clause, however, the plaintiff bears the burden of showing why the court should 10 not transfer the case to the agreed-upon forum, and the court “should not consider arguments about 11 the parties’ private interests.” Atl. Marine,

. “[A] proper application of [Section] 12 1404(a) requires that a valid forum-selection clause be ‘given controlling weight in all but the 13 most exceptional cases.’”

at 60 (quoting Stewart Org., Inc. v. Ricoh Corp.,

, 31 14 (1988)). 15 IV. DISCUSSION 16 SRM and NTA argue that venue is proper in the Northern District of Texas, and that the 17 forum-selection clause is mandatory, valid, and applicable to this action. Antares does not dispute 18 that venue is proper in the Northern District of Texas, or that the forum-selection clause is 19 mandatory, valid, and applicable. Rather, Antares argues that SRM and NTA should be judicially 20 estopped from enforcing the forum-selection clause because they alleged venue was proper in the 21 Northern District of California in the USIC Action. 22 “[W]here a party assumes a certain position in a legal proceeding, and succeeds in 23 maintaining that position, he may not thereafter, simply because his interests have changed, 24 assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in 25 the position formerly taken by him.” New Hampshire v. Maine,

(2001) 26 (alteration in original) (quoting Davis v. Wakelee,

(1895)). In determining 27 whether to apply judicial estoppel, courts should consider: (1) whether the “party’s later position 1 persuading a court to accept that party’s earlier position, so that judicial acceptance of an 2 inconsistent position in a later proceeding would create the perception that either the first or the 3 second court was misled”; and (3) “whether the party seeking to assert an inconsistent position 4 would derive an unfair advantage or impose an unfair detriment on the opposing party if not 5 estopped.”

. 6 Antares argues that, by filing its third-party complaint in the Northern District of 7 California in the USIC Action, NTA “[i]mplicitly . . . admitted . . . that the forum[-]selection 8 clause did not apply to require that such claims be filed in Texas,” which is inconsistent with 9 Defendants’ current argument concerning the scope of the forum-selection clause. ECF No. 45 at 10 7. The third-party complaint was filed pursuant to a limited venue stipulation, in which NTA and 11 Antares “waive[d] the [forum-selection clause] solely for the purposes of the Current Dispute”— 12 the USIC Action—and which provided that “[n]othing herein shall be construed as [] a waiver of 13 the [forum-selection clause] for any other claim or dispute among the Parties.” ECF No. 28-4. 14 Antares does not challenge the validity or scope of this waiver. NTA thus filed the third-party 15 complaint in the USIC Action pursuant to a valid, limited, and express waiver, in which all parties 16 agreed that the forum-selection clause would not require that particular dispute to be litigated in 17 Texas. Where two parties agree to waive a forum-selection clause for a particular dispute, it is not 18 “clearly inconsistent” to enforce the forum-selection clause as to another dispute outside the scope 19 of that waiver. New Hampshire,

. Accordingly, the Court finds that the first 20 consideration counsels against the application of judicial estoppel. 21 Further, the third-party complaint in the USIC Action was voluntarily dismissed without 22 prejudice. Because no Court ruled on the allegations in that complaint, there is no risk that 23 “judicial acceptance of an inconsistent position in a later proceeding would create the perception 24 that either the first or the second court was misled.” New Hampshire,

. The 25 second consideration thus also counsels against the application of judicial estoppel. 26 Finally, Antares argues that Defendants gain an unfair advantage by expressly waiving the 27 forum-selection clause for claims in the USIC Action but asserting its validity in the instant action, 1 But the parties entered into a venue stipulation which expressly waived the forum-selection clause 2 || forthe USIC Action and agreed that the Northern District of California would be the appropriate 3 venue for the USIC Action “and any related matters that arise from the [USIC Action.]” ECF No. 4 || 28-4 at 3. Antares does not contend that this action is a related matter that arises from the USIC 5 Action. Pursuant to the venue stipulation, all other claims and disputes remain governed by the 6 || forum-selection clause. The Court is not persuaded that the position Defendants assume is 7 inconsistent or grants them an unfair advantage. New Hampshire,

. 8 The Court concludes that judicial estoppel is inapplicable here, and that Antares has not 9 met its burden of showing why the Court should not transfer this case. Atl. Marine,

|| 63-64. 11 CONCLUSION 12 Defendants’ motion to transfer venue is granted. The Clerk is directed to transfer the case 13 to the Northern District of Texas, Fort Worth Division. IT IS SO ORDERED. 3 15 Dated: September 7, 2023 . □ 16 JON S. TIGAR 2 17 nited States District Judge

19 20 21 22 23 24 25 26 27 28