FILED
Sep 05 2023, 9:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Danny E. Glass U.S. SECURITY ASSOCIATES,
Adam S. Glass INC.; JENNIFER FREEMAN;
Fine & Hatfield P.C. BRIAN HILL; AND CARL NELSON
Evansville, Indiana Edward M. O’Brien
Wilson Elser Moskowitz Edelman
Gregory L. Mast & Dicker LLP
Stephen A. Kahn Louisville, Kentucky
Fields Howell, LLP
Atlanta, Georgia
IN THE
COURT OF APPEALS OF INDIANA
Perdue Farms, Inc., September 5, 2023
Appellant, Court of Appeals Case No.
22A-PL-2989
v. Appeal from the Daviess Circuit
Court
L&B Transport, LLC; U.S. The Honorable Gregory A. Smith,
Security Associates, Inc.; Judge
William Richardson; Jennifer Trial Court Cause No.
Freeman; Brian Hill; Carl 14C01-2008-PL-491
Nelson; ABC Corporation,
Appellees.
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 1 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 2 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 3 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 4 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 5 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 6 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
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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 8 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
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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 10 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
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“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.
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[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 13 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
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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
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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.
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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 multiple-
lawsuits 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
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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.
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