United States District Court, S.D. Florida, Miami Division
FINAL ORDER OF DISMISSAL
LAWRENCE KING, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Order United
States Court of Appeals for the Eleventh Circuit. The
Eleventh Circuit Court of Appeals reversed and remanded the
matter for additional briefing on the undecided issue of
whether enforceability and validity are distinct or
synonymous inquiries in the context of international forum
selection clauses. Additional briefing was submitted by the
parties and Oral Argument was held on June 15, 2018. For the
reasons set forth herein, it is hereby ORDERED that
Defendants' Motion to Dismiss is GRANTED.
Amended Complaint alleges that Ms. Wylie was taking part in
the Sea Squirts -Little Aquarist Helpers attraction at
Atlantis Resort when she slipped and fell on a step leading
into a fish feeding pool. DE 25 at ¶ 27. Ms. Wylie is
domiciled in Illinois. DE 25 at ¶ 2. The Defendants are
all Bahamian corporations. DE 25 at ¶¶ 3, 7, and
11. The Amended Complaint further alleges that, as part of
the registration process, Defendants present guests with a
document entitled "Acknowledgement, Agreement, and
Release." DE 25 at ¶ 25. Ms. Wylie alleges she
neither signed the Release nor authorized anyone else to sign
on her behalf. DE 25 at ¶¶ 25-26. The Release is
ACKNOWLEGEMENT, AGREEMENT AND RELEASE "SEA
SQUIRTS - LITTLE AQUARIST HELPERS" Read
(emphasis in original). The six-paragraph release states in
I agree that any claims I may have against the Resort Parties
resulting from any events occurring in The Bahamas shall be
governed by and construed in accordance with the laws of the
Commonwealth of The Bahamas, and further, I irrevocably agree
to the Supreme Court of The Bahamas as the exclusive venue
for any such proceedings whatsoever.
Id. The Release is signed by Plaintiffs husband,
Andrew Wylie, and states "I represent and warrant that I
have authority to sign on behalf of myself and the members of
my traveling party ... and voluntarily agree to all the terms
of this release" and lists Madison and Melissa Wylie as
"names of family members or others in my group[.]"
Id. Ms. Wylie did not sign the Release.
Court dismissed Plaintiffs lawsuit on January 5, 2017 after
granting Defendants' Motion to Dismiss. See
Final Order of Dismissal (D.E. 37). Plaintiff appealed the
decision, and on September 1, 2017, the Eleventh Circuit
determined the issues involved in resolving the appeal appear
to be a matter of first impression in this Circuit and
therefore sent the case back to this Court with instructions
for further briefing by the parties and analysis. The Court
held Oral Argument on June 15, 2018 where the parties
presented their arguments and the Court considered the
supplemental briefs filed by the Parties.
instant case is subject to dismissal for two reasons. First,
regardless of the validity and enforceability of the forum
selection clause, the doctrine of forum non
conveniens mandates dismissal. Second, there is a valid
and enforceable forum selection clause that binds Ms. Wylie
as a non-signatory.
Traditional Forum Non Conveniens Analysis Mandates
traditional forum non conveniens analysis mandates
that this case be dismissed, regardless of whether there is a
valid and enforceable forum selection clause binding Ms.
Wylie. Under the traditional doctrine of forum non
conveniens, a district court has the inherent power to
decline to exercise jurisdiction even when venue is proper.
See Gulf Oil v. Gilbert, 330 U.S. 501, 506-07
(1947). In the absence of a forum selection agreement, to
obtain forum non conveniens dismissal, "the
moving party must demonstrate that (A) an adequate
alternative forum is available, (B) the public and private
interest factors weigh in favor of dismissal, and (C) 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.
reasons discussed at Oral Argument and in the Parties'
briefing, all the criteria are met for forum non
conveniens dismissal. It is well settled that The
Bahamas is an adequate alternative forum. See, e.g.,
McGinn v. Kerzner Intern. Hotels Ltd., Case No.: 12-cv-
20536-Moore, at *5 (S.D. Fla. October 22, 2012) (noting
Southern District Courts "consistently" hold that
The Bahamas provides an adequate alternative forum);
Miyoung Son v. Kerzner Intern. Hotels Ltd., 2008 WL
4186979 (S.D. Fla. Sept. 5, 2008) ("[T]he Court finds
that the Supreme Court of The Bahamas is an adequate
alternative forum for the instant action"); Horberg
v. Kerzner Intern. Hotels Ltd.,744 F.Supp.2d 1284,
1290-91 (S.D. Fla. 2007) (ruling "[i]t is undisputed
that Defendants are amenable to process in The Bahamas ...
this Court has no reason to find other than that The Bahamas
provides Plaintiff with an adequate alternative
forum...."); Morrone v. Sun Intern. Hotels
Ltd., Case No. 05-61600-Civ-Seitz/McAliley, at *5 (S.D.
Fla. Sept. 22, 2006) ("[T]he Court finds The Bahamas to
be an available and adequate alternative forum ....");