M.Z., as Natural Mother and Legal Guardian of A.Z., a minor, Appellant,
Carnival Corporation, et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 17-91, Antonio Arzola, Judge.
Brais Rusak and Richard D. Rusak, for appellant.
Tinelli Mebane & Briggs, P.A., and Curtis J. Mase and
Cameron W. Eubanks, for appellee Carnival Corporation.
SALTER, EMAS and FERNANDEZ, JJ.
plaintiff below (M.Z.), appellant here, is the mother and
legal guardian of a minor who allegedly was sexually
assaulted and raped on board a cruise ship operated by
Carnival Corporation ("Carnival") in 2015. M.Z.
filed a lawsuit against Carnival (and five alleged "John
Doe" individual perpetrators) in the Miami-Dade Circuit
Court, demanding trial by jury.
issue presented to the trial court and to us is whether a
forum selection clause in M.Z.'s and her child's
tickets is enforceable. That clause states:
. . . it is agreed by and between the Guest and Carnival that
all disputes and matters whatsoever arising under, in
connection with or incident to this Contract or the
Guest's cruise, including travel to and from the vessel,
shall be litigated, if at all, before the United States
District Court for the Southern District of Florida in Miami,
or as to those lawsuits to which the Federal Courts of the
United States lack subject matter jurisdiction, before a
court located in Miami-Dade County, Florida, U.S.A. to the
exclusion of the Courts of any other county, state, or
maintains that the forum selection clause fails to disclose
that it deprives her and her child of their right to a jury
trial under the United States and Florida Constitutions, and
that Carnival failed to obtain an enforceable waiver of that
right in the passenger tickets.
Carnival moved for dismissal of the lawsuit on the basis of
the mandatory, exclusive federal forum selection provision
applicable to lawsuits in which the federal courts do not
lack subject matter jurisdiction (as here), relying upon
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585
(1991), and Leslie v. Carnival Corp., 22 So.3d 567
(Fla. 3d DCA 2009) (en banc). In its motion to dismiss, and
at the hearing on the motion, Carnival represented that it
would not object to a request by M.Z. for a trial by jury in
admiralty in federal court following dismissal of the case
and enforcement of the forum selection clause.
trial court granted the motion to dismiss, "for
Plaintiff to proceed in Federal Court in accordance with the
forum selection clause if she so elects."This appeal
panel in this case is bound by the en banc decision of the
full Court in Leslie. Here, as in Leslie,
the record contains no evidence of: (a) a bad faith motive,
fraud, or overreaching on the part of Carnival; or (b)
"evidence the plaintiffs will be mistreated or
short-changed by the judges of the United States District
Court for the Southern District of Florida, or that the
judges will routinely deny cruise ship passengers, such as
these plaintiffs, jury trials if requested."