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M.Z. v. Carnival Corp.

Florida Court of Appeals, Third District

February 21, 2018

M.Z., as Natural Mother and Legal Guardian of A.Z., a minor, Appellant,
v.
Carnival Corporation, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 17-91, Antonio Arzola, Judge.

          Brais Brais Rusak and Richard D. Rusak, for appellant.

          Mase Tinelli Mebane & Briggs, P.A., and Curtis J. Mase and Cameron W. Eubanks, for appellee Carnival Corporation.

          Before SALTER, EMAS and FERNANDEZ, JJ.

          PER CURIAM.

          The 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.

         The 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 country.[1]

         M.Z. 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.[2]

         The 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."[3]This appeal followed.

         Analysis

         The 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." ...


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