United States District Court, S.D. Florida
MICHAEL MCCOY, on his own behalf and on behalf of all others similarly situated, Plaintiff,
SANDALS RESORTS INTERNATIONAL, LTD., d/b/a Sandals, and UNIQUE VACATIONS, INC., d/b/a Unique Vacations, Defendants.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Unique
Vacations, Inc.'s (“UVI”) Motion to Dismiss
Plaintiff's Class Action Complaint, ECF No. 
(“Motion”), which Defendant Sandals Resorts
International, Ltd. (“SRI”), joins in and adopts,
in addition to its own Motion to Dismiss, see ECF
No.  at 7. Plaintiff Michael McCoy
(“Plaintiff”) filed his Response in Opposition to
the Motion, ECF No.  (“Response”), to which
Defendants UVI and SRI (collectively,
“Defendants”) jointly filed their Reply, ECF No.
 (“Reply”). Plaintiff further filed two
Notices of Supplemental Authority. ECF Nos.  & .
Defendants also filed a Notice of Supplemental Authority. ECF
No. . 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.
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.  (“Complaint”).
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.
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. ¶
Forum-Selection Clause and Choice of Law Provision
noted above, Plaintiff and his family have visited the
Sandals Resorts on seven separate occasions from 2013 to
2019. ECF No.  ¶ 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
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
Id. at 22 (“Clause 17.B.”).
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
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.
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
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
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,
UVI's Motion to Dismiss
8, 2019, both UVI and SRI filed separate Motions to Dismiss.
ECF Nos.  & . 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. . 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
17, 2019, Defendants filed a Motion to Stay Briefing on
SRI's Motion to Dismiss. ECF No. . 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. . 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.  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. Id. at 4.
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.
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).
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).
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
“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).
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,
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).
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