United States District Court, S.D. Florida
CYNTHIA ST. AUBIN, Plaintiff,
ISLAND HOTEL COMPANY LIMITED, a Bahamian Company; ATLANTIS HOLDINGS BAHAMAS LIMITED, a Bahamian company; BREF BAHAMAS LTD, a Bahamian company; and BROOKFIELD HOSPITALITY PROPERTIES, LLC, a Delaware corporation. Defendants.
ORDER ON DEFENDANTS ' MOTION TO DISMISS
G. COOKE United States District Judge
case arises from injuries Plaintiff Cynthia St. Aubin
suffered from an allegedly dangerous condition on the
“lazy river” ride at the Atlantis Resort's
(“Resort”) Waterpark in Nassau, Bahamas. I have
jurisdiction under 28 U.S.C. § 1332.
is Defendants' Motion to Dismiss Plaintiffs Complaint
(“Motion”) for forum non conveniens.
(ECF No. 13). St. Aubin has filed her Response in Opposition
to Defendant's Motion (ECF No. 20), and Defendants
submitted their Reply (ECF No. 25). The Motion is therefore
fully briefed and ripe for adjudication.
reviewed the Motion, the Response and Reply, the record, and
the relevant legal authorities. For the following reasons, I
deny Defendants' Motion.
about March 31, 2014, St. Aubin slipped on a transitory
substance near the “lazy river” at the Waterpark.
(ECF No. 5 ¶ 27). St. Aubin suffered injuries as a
result of the fall, including a brain bleed that required
surgical intervention. (Id. ¶ 28). St. Aubin
alleges Defendants breached the duty of care owed to her as a
guest of the Resort, and that the breach resulted in pain and
suffering, mental anguish, emotional distress, permanent
injury, loss of wages, incurred medical expenses, and loss of
capacity for the enjoyment of life. (Id. ¶ 13).
Aubin visited the Waterpark with her friends, one of whom
booked the excursion through a cruise line operator. (ECF No.
20-1 ¶ 4). Typically, at check-in, the Resort requires
guests to sign an “Acknowledgement, Agreement and
Release” (“Agreement”) that includes a
forum-selection clause designating the Bahamas as the venue
for claims against the Resort or the various corporate
entities associated or affiliated with the Resort. (ECF No. 5
¶ 25). St. Aubin alleges: (1) that neither the cruise
line operator nor the Defendants informed her about the
forum-selection clause; and (2) that she did not personally
sign or assent to the forum-selection clause. (ECF No. 5
the doctrine of forum non conveniens, a court has discretion
to dismiss a case over which it otherwise has jurisdiction in
the interest of convenience, fairness, and judicial economy.
See Sinochem Int'l Co. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 429 (2007). To obtain dismissal for
forum non conveniens, “[t]he moving party must
demonstrate that (1) an adequate alternative forum is
available, (2) the public and private factors weigh in favor
of dismissal, and (3) the plaintiff can reinstate his suit in
the alternative forum without undue inconvenience or
prejudice.” Leon v. Millon Air, Inc., 251 F.3d
1305, 1310-11 (11th Cir.2001).
Atlantic Marine Constr. Co. v. United States District
Court for the Western District of Texas, 134 S.Ct. 568
(2013), the Supreme Court explained that an enforceable
forum-selection clause carries near-determinative weight in
the forum non conveniens analysis:
When parties agree to a forum-selection clause, they waive
the right to challenge the preselected forum as inconvenient
or less convenient for themselves or their witnesses, or for
their pursuit of the litigation. A court accordingly must
deem the private-interest factors to weigh entirely in favor
of the preselected forum . . . .
As a consequence, a district court may consider arguments
about public-interest factors only. Because those factors
will rarely defeat a transfer motion, the practical result is
that forum-selection clauses should control except in unusual
Id. at 582.
when there is a valid forum-selection clause in a contract,
the burden is on the plaintiff to show that dismissal of the
complaint is unwarranted. See Id. at 581-83. I
therefore address whether there was a forum-selection clause
that bound St. Aubin before I engage in the forum non
Forum Selection Clause
Aubin argues that the Agreement's forum-selection clause
is not enforceable against her. I agree.
determine the enforceability of a forum-selection clause on a
case-by-case basis. Horberg v. Kerzner Int'l Hotels
Ltd., 744 F.Supp.2d 1284, 1289 (S.D. Fla. 2007).
“Mandatory forum-selection clauses are presumptively
valid and enforceable and warrant dismissal in favor of a
contractually-mandated foreign forum unless the plaintiff
makes a ‘strong showing' that enforcement would be
unreasonable or unjust under the circumstances.”
Bell v. Kerzner Int'l Ltd., 2011 WL 12656691, at
*2 (S.D. Fla. 2011). A forum-selection clause is
“unreasonable” when: (1) the formation of the
clause was induced by fraud or overreaching; (2) the
plaintiff would be deprived of his or her day in court
because of inconvenience or unfairness; (3) the chosen law
would deprive the plaintiff of a remedy; or (4) enforcement
of the provisions would contravene public policy.
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,
594-95 (1991); Lipcon v. Underwriters at Lloyd's,
London, 148 F.3d 1285, 1290 (11th Cir. 1998).
not engage in a reasonableness analysis here because,
accepting St. Aubin's allegations as true: (1) she did not
sign the Agreement - or any other document containing a
forum-selection clause - or authorize anyone else to do so on
her behalf; and (2) she did not receive reasonable
notice of the forum-selection clause before or during the
check-in process. See, e.g., Touloumes v. Kerzner
Int'l Bahamas, Ltd., 2014 WL 10102248, at *2 (S.D.
Fla. 2014) (if forum-selection clause is unsigned, it is
enforceable only if plaintiff is on reasonable notice of the
clause); Larsen v. Kerzner Int'l Hotels Ltd.,
2009 WL 1759585, at *4 (S.D. Fla. 2009) (forum-selection
clause not enforceable if not signed or at least called to
plaintiffs attention); Horberg, 744 F.Supp.2d at
1288-89 (“[Plaintiff] was not told when he made his
reservation that he would be required to sign the
forum-selection clause, and there is no evidence in the
record indicating that when the forum-selection clause was
presented to [plaintiff] upon check-in . . . the significance
of signing the clause was explained to him, or that he was
afforded sufficient opportunity to consider and reject the
put, Defendants have provided no authority - from the Bahamas
or anywhere else - requiring enforcement of an unsigned forum
selection clause under the circumstances of this case. I
therefore find that the forum-selection clause is
unenforceable against St. Aubin. Having reached that
conclusion, I next address Defendants' argument that I
should dismiss St Aubin's claim under a traditional
forum non conveniens analysis.