Aubin v. Island Hotel Co. Ltd.

          ORDER ON DEFENDANTS ' MOTION TO DISMISS

          MARCIA G. COOKE United States District Judge

         This 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.

         Pending is Defendants'^[1] 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.

         I have reviewed the Motion, the Response and Reply, the record, and the relevant legal authorities. For the following reasons, I deny Defendants' Motion.

         BACKGROUND

         On or 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).

         St. 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 ¶ 26).

         DISCUSSION

         Under 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).

         In 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 cases.

Id. at 582.^[2]

         Thus, 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 conveniens analysis.

         A. Forum Selection Clause

         St. Aubin argues that the Agreement's forum-selection clause is not enforceable against her. I agree.

         Courts 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).

         I need not engage in a reasonableness analysis here because, accepting St. Aubin's allegations as true:^[3] (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;^[4] and (2) she did not receive reasonable notice of the forum-selection clause before or during the check-in process.^[5] 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 forum-selection clause.”).

         Simply 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.

         B. Forum ...