This reminds me that I didn’t have a chance to write a post when the Supreme Court decided Atlantic Marine a few weeks ago. The decision was unanimous and it did not adopt the Sachs position. However, the Court also went out of its way to leave open the possibility that the Sachs position could be adopted in a future case where it was properly preserved and raised:
An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified [*9] in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule’s application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that §1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms. [FN]
[FN:] We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under §1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke §1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6).
It’s easy to imagine scenarios in the future where a defendant may wish to invoke a forum selection clause using Rule 12(b)(6) — for example, a defendant who will have a hard time satisfying the forum non conveniens doctrine (perhaps because no alternative forum is available) or a defendant who knows that the statute of limitations has run. Now they’ll have a very well-written brief to work with in doing so.