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McCoy v. Sandals Resorts International, Ltd.

United States District Court, S.D. Florida

November 18, 2019

MICHAEL MCCOY, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
SANDALS RESORTS INTERNATIONAL, LTD., d/b/a Sandals, and UNIQUE VACATIONS, INC., d/b/a Unique Vacations, Defendants.

          ORDER

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon Defendant Unique Vacations, Inc.'s (“UVI”) Motion to Dismiss Plaintiff's Class Action Complaint, ECF No. [14] (“Motion”), which Defendant Sandals Resorts International, Ltd. (“SRI”), joins in and adopts, in addition to its own Motion to Dismiss, see ECF No. [15] at 7. Plaintiff Michael McCoy (“Plaintiff”) filed his Response in Opposition to the Motion, ECF No. [40] (“Response”), to which Defendants UVI and SRI (collectively, “Defendants”) jointly filed their Reply, ECF No. [41] (“Reply”). Plaintiff further filed two Notices of Supplemental Authority. ECF Nos. [44] & [48]. Defendants also filed a Notice of Supplemental Authority. ECF No. [50]. The Court has reviewed the Motion, all supporting and opposing submissions, the arguments presented at the Hearing, the record in this case, and the applicable law, and is otherwise fully advised. For the reasons set forth below, Defendants' Motion is granted.

         I. BACKGROUND

         Plaintiff filed this putative class action on June 13, 2019, asserting two claims for violation of Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201, et seq. (“FDUTPA”), and one claim for unjust enrichment against Defendants for allegedly charging guests at certain Sandals resorts throughout the Caribbean a local government “tax” that Defendants secretly retained. ECF No. [1] (“Complaint”).

         Plaintiff is a citizen of New York who, along with his wife and two minor children, stayed at Sandals Resorts on seven separate occasions in 2013, 2014, and 2016-2019. Id. ¶ 7. SRI is a Jamaican corporation that owns and operates nineteen resorts located throughout the Caribbean. Id. ¶ 8. UVI is a Delaware corporation with its principal place of business in Miami, Florida, and it operates as the sales, marketing and public relations arm of SRI. Id. ¶ 9. Plaintiff alleges that UVI is SRI's “world-wide marketing agent” or, alternatively, that UVI is the “owner or co-owner, operator or co-operator and/or manager or co-manager of SRI's resorts.” Id. ¶¶ 12, 14. The instant action “seeks damages for current and former guests at Sandals' resorts throughout the Caribbean . . . who were charged a local government ‘tax' and/or deceived into paying such tax (in whole or in part) that was, in fact, being secretly retained by Defendants.” Id. ¶ 1.

         Specifically, Plaintiff alleges that “Defendants' marketing structure presents consumers with a single price for a vacation package, ” which Defendants represent includes all taxes, while also noting that this price is “subject to change at any time due to the imposition of taxes or other government charges.” Id. ¶ 2. “This marketing structure gives the net impression that Defendants collect from customers the actual taxes owed on the purchase of their vacation packages, which are then passed through to the government.” Id. In fact, Plaintiff contends that Defendants “only remit a percentage of the amounts they collect as ‘taxes' from the consumers to the government, illegally retaining the rest for themselves.” Id. ¶ 3. “Defendants further omit that they collect certain taxes for guests under 12-years-old [sic], which is prohibited under the applicable [Child Tax Prohibition] law[s].” Id. ¶ 4. Plaintiff brings this putative class action on behalf of two nationwide subclasses of (1) “[a]ll persons and entities in the United States who, within the applicable limitations period, purchased a vacation package from a Sandals or Beaches Resort located in a country where Sandals has a Tax Retention Agreement, ” and (2) “[a]ll persons and entities in the United States who, within the applicable limitations period, purchased a vacation package from a Sandals or Beaches Resort located in a country with a Child Tax Prohibition for a child who was within the age to which the Child Tax Prohibition applied at the time of purchase.” Id. ¶ 31.

         A. Forum-Selection Clause and Choice of Law Provision

         As noted above, Plaintiff and his family have visited the Sandals Resorts on seven separate occasions from 2013 to 2019. ECF No. [1] ¶ 7. Further, Plaintiff has an additional upcoming stay booked at the TCI Resort that is set to begin on February 14, 2020. ECF No. [14-1] at 3, ¶ 8. For each stay Plaintiff booked at the TCI Resort, he was provided with an Invoice in advance of his departure, which included the following language: “IMPORTANT TERMS AND CONDITIONS CONCERNING YOUR BOOKING THAT AFFECT YOUR LEGAL RIGHTS ARE INCLUDED/ATTACHED AS AN IMAGE TO THIS E-MAIL - IF THE IMAGE IS NOT BEING DISPLAYED, PLEASE ACCEPT THE IMAGE AND READ CAREFULLY PRIOR TO YOUR ARRIVAL AT THE RESORT.” Id. at 19. Relevant to the instant Motion, the attached Terms & Conditions included, among other things, the following forum-selection clause and choice of law provision:

17. FORUM SELECTION AND CHOICE OF LAW:
. . . .
B. CLAIMS WHICH INCLUDE HOTEL AND/OR SANDALS RESORTS INTERNATIONAL, LTD. . . . ANY CLAIMS WHATSOEVER ARISING FROM, IN CONNECTION WITH, OR INCIDENTAL TO ANY PERSONAL INJURY, ILLNESS OR DEATH, THAT INCLUDE ANY CLAIM WHATSOEVER AGAINST SANDALS RESORTS INTERNATIONAL LIMITED, OR THE HOTEL, HOTEL MANAGEMENT COMPANY, AND/OR THEIR AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, OR EMPLOYEES, AND TO WHICH CLAIM UNIQUE TRAVEL IS ALSO A PARTY, SHALL BE LITIGATED SOLELY AND EXCLUSIVELY IN THE COURTS OF THE COUNTRY IN WHICH THE HOTEL IS PHYSICALLY LOCATED AND GOVERNED EXCLUSIVELY BY THE LAWS OF THE COUNTRY IN WHICH THE HOTEL IS PHYSICALLY LOCATED.

Id. at 22 (“Clause 17.B.”).

         Moreover, the Terms & Conditions contained an additional notice that, as a condition to booking a stay at a Sandals Resort, guests would be required to agree to the following forum-selection clause upon arrival and check in at the Resort:

C. NOTICE OF REQUIRED SIGNING AND ASSENT AT HOTEL CHECK-IN . . . [T]he Guest will be required DURING THE HOTEL CHECK-IN PROCESS UPON ARRIVAL, to separately and specifically sign and assent to the following forum selection and choice of law provisions: The undersigned Guest(s) HEREBY KNOWINGLY AND VOLUNTARILY AGREES that any and all claims that each such Guest may have against Sandals Resorts International, Ltd., the hotel, hotel management company, and/or their affiliates, subsidiaries, insurers, directors, officers, and employees, in connection with or in any way incident or related to the undersigned Guest's (or Guests') stay at the hotel/resort, shall be governed solely by the laws of the country in which the Resort is physically located as the exclusive choice of law, and further that the courts of the country in which the Resort is physically located shall be the exclusive venue/forum for any proceedings, claims or litigation whatsoever. IF THE GUEST DOES NOT SIGN AND ASSENT TO SUCH TERMS AND CONDITIONS AT CHECK-IN PROCESS, THE GUEST WILL NOT BE ALLOWED TO CHECK-IN AND WILL BE DENIED ACCESS TO THE HOTEL. ACCORDINGLY, ADVANCE NOTIFICATION OF THIS REQUIREMENT IS HEREBY PROVIDED.

Id. at 22-23 (“Clause 17.C.”). These Terms & Conditions also included a refund schedule, should a guest choose not to accept the terms set forth above. Id. at 23.

         Attached to the Defendant's Motion is a Declaration from Tammy Gonzalez, UVI's Chief Executive Officer. Id. at 2-16. Ms. Gonzalez attests that over the course of his seven stays, Plaintiff received at least eighteen (18) Invoices with the Terms & Conditions attached, each providing Plaintiff with notice of the forum selection and choice of law provisions before departing for TCI. Plaintiff did not object to these provisions at any point. See generally id.

         Additionally, each time Plaintiff stayed at the TCI Resort, he was provided with an On Resort Guest Registration, containing the following forum selection and choice of law provisions:

8. Forum Selection and Choice of Law: The undersigned Guest(s) HEREBY KNOWINGLY AND VOLUNTARILY AGREES that any and all claims that each such Guest may have against Sandals Resorts International, Ltd., the hotel, hotel management company, and/or their parent corporation, affiliates, subsidiaries insurers, directors, officers, employees, successors, assigns, agents and representatives in connection with or in any way incident or related to the undersigned Guest's (or Guests') stay at the hotel/resort, shall be governed solely by the laws of Turks And Caicos as the exclusive choice of law, and further that the courts of Turks And Caicos shall be the exclusive venue/forum for any proceedings, claims, or litigation whatsoever.

Id. at 26. In order to be permitted to stay at the Resort, Plaintiff and his family were required to agree to this On Resort Guest Registration at the time of check in. Id. at 22-23. Plaintiff signed and assented to these forum selection and choice of law provisions on at least four separate stays at the TCI Resort. See Id. at 6, 8, 11, 12-13.

         B. UVI's Motion to Dismiss

         On July 8, 2019, both UVI and SRI filed separate Motions to Dismiss. ECF Nos. [14] & [15]. In the instant Motion, UVI asserts five independent bases for dismissal. First, UVI argues that the Complaint should be dismissed under the doctrine of forum non conveniens because Plaintiff agreed to a binding forum-selection clause requiring that he litigate this action in the Turks & Caicos Islands (“TCI”). UVI's Motion also seeks dismissal for (1) failure to plead fraud-based claims with particularity; (2) lack of Article III standing; (3) failure to state a FDUTPA claim because the Complaint does not allege Florida misconduct or actual damages; and (4) failure to state an unjust enrichment claim because it is impermissibly duplicative of the FDUTPA claim and based on an express contract. ECF No. [14]. SRI's Motion adopts each ground for dismissal asserted by UVI and argues that (1) the Court lacks both general jurisdiction and specific jurisdiction with respect to SRI, and (2) that the claims against SRI should be dismissed for insufficient service of process. ECF No. [15].

         On July 17, 2019, Defendants filed a Motion to Stay Briefing on SRI's Motion to Dismiss. ECF No. [18]. Moreover, on July 19, 2019, Plaintiff filed a Renewed Motion for Leave to Conduct Jurisdictional Discovery and to Stay Briefing on SRI's Motion to Dismiss. ECF No. [23]. On August 2, 2019, this Court issued an Omnibus Order on both parties' Motions, concluding that “the less burdensome course is for the Court to first resolve Defendants' forum non conveniens arguments asserted in UVI's Motion to Dismiss and adopted by SRI in its Motion to Dismiss” before permitting Plaintiff to conduct jurisdictional discovery. ECF No. [37] at 3. As such, the Court denied Plaintiff's request to conduct jurisdictional discovery and stayed briefing on the issues of personal jurisdiction and insufficient service of process raised in SRI's Motion to Dismiss, pending the Court's ruling on the five grounds for dismissal asserted in UVI's Motion to Dismiss and adopted by SRI.[1] Id. at 4.

         On November 7, 2019, this Court held a Hearing on Defendants' Motion to Dismiss, which was attended by Plaintiff's counsel and Defendants' counsel. During the Hearing, Defendants argued primarily that the forum-selection clause in the Terms & Conditions and in the On Resort Guest Registration should be enforced because Plaintiff received notice of and agreed to the clause on numerous occasions, the clause is valid and enforceable, and the forum non conveniens analysis weighs in favor of dismissal. Conversely, Plaintiff argued that the forum-selection clause should not apply in this case because Plaintiff's claims fall outside the scope of the forum-selection clause and because TCI is not an adequate and available alternative forum.

         II. LEGAL STANDARD

         “[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.” Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 60 (2013) (“Atl. Marine”). Ordinarily, to obtain dismissal based on the doctrine of forum non conveniens, a movant 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.” GDG Acquisitions, LLC v. Gov't of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014).

         “The calculus changes, however, when the parties' contract contains a valid forum-selection clause.” Atl. Marine 571 U.S. at 63. As the United States Supreme Court has noted, the existence of a forum-selection clause is essentially case dispositive in the forum non conveniens analysis. See Id. at 62; see also GDG Acquisitions, LLC, 749 F.3d at 1028 (“an enforceable forum-selection clause carries near-determinative weight” in the forum non conveniens analysis). “Only under extraordinary circumstances unrelated to the convenience of the parties should a . . . motion [to dismiss based on forum non conveniens] be denied.” Atl. Marine, 571 U.S. at 62. Once established, the existence of a valid forum-selection clause governing the claims at issue shifts the burden from the party seeking dismissal to the non-movant to establish that dismissal is improper. See Id. at 63; Stiles v. Bankers Healthcare Grp., Inc., 637 Fed.Appx. 556, 562 (11th Cir. 2016); Pappas v. Kerzner Int'l Bah. Ltd., 585 Fed.Appx. 962, 967 (11th Cir. 2014). Indeed, the party seeking to avoid the forum-selection clause bears a “heavy burden of proof” in establishing that the clause should be set aside. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991).

         The existence of a valid forum-selection clause requires courts to adjust their forum non conveniens analysis in three ways. Atl. Marine, 571 U.S. at 63.[2] “First, the plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” Id. Second, courts “must deem the private-interest factors to weigh entirely in favor of the preselected forum.” Id. at 64. Accordingly, the analysis must only consider public interest factors. Id. “[T]he practical result is that forum-selection clauses should control except in unusual cases.” Id. at 64. Finally, “[t]he court in the contractually selected venue should not apply the law of the transferor venue to which the parties waived their right.” Id. at 65-66 (footnote omitted).

         The Supreme Court's determination that “a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases, ” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring), stems, in part, from the recognition that these clauses represent the parties' ab initio agreement as to the most proper forum. Id. at 31; Atl. Marine, 571 U.S. at 62 (“When parties agree to a forum-selection clause, they waive the right to challenge a preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation.”); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 16-17 (1972).

         In considering a motion to dismiss for forum non conveniens, a court must accept the facts in the plaintiff's complaint as true, “to the extent they are uncontroverted by the defendants' affidavits.” S & Davis Int'l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000) (quoting Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990) (per curiam)); Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988) (citing Black v. Acme Markets, Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977)). In ruling on a motion to dismiss for forum non conveniens, a court may “consider matters outside the pleadings if presented in proper form by the parties.” MGC Commc'ns, Inc. v. BellSouth Telecomms., Inc., 146 F.Supp.2d 1344, 1349 (S.D. Fla. 2001); see also Grp. CG Builders & Contractors v. Cahaba Disaster Recovery, LLC, 534 Fed.Appx. 826, 829-30 (11th Cir. 2013) (affidavit in support of motion to dismiss for forum non conveniens properly considered). “When affidavits conflict, the court is inclined to give greater weight to the plaintiff's version of the [] facts and to construe such facts in the light most favorable to the plaintiff.” Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990) (citing Delong Equip. Co., 840 F.2d at 845).

         In analyzing the application of a forum-selection clause, courts must determine whether the clause is valid and whether the claim at issue falls within the scope of the clause - by looking to the language of the clause itself. See Bah. Sales Assoc., LLC v. Byers, 701 F.3d 1335, 1340 (11th Cir. 2012) (“To determine if a claim falls within the scope of a clause, we look to the language of the clause.”). If a court concludes that a valid and enforceable forum-selection clause exists, it must apply the Supreme Court's modified forum non conveniens analysis and assess (1) whether an adequate alternative forum is ...


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