Advertisements

Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases. Where the lawsuit will be (where/Venue) and what law will be applied (Jurisdiction) is the sole issue in this case.

Advance notice of the jurisdiction and venue issues emailed to the plaintiff saves this resort. Plaintiff was not able to argue they were not told they had to sue in Bermuda. Bermuda does not allow contingency cases, and a Bermuda jury is not as likely to give money to foreigners (Americans) as a Miami jury.

Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482

Date of the Decision: September 5, 2008

Plaintiff: Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”)

Defendant: Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited

Plaintiff Claims: Response to Defendant’s Motion to Dismiss

Defendant Defenses: Motion to Dismiss

Holding: for the defendant

The plaintiff’s booked at trip at the defendant’s resort (Atlantis Resort) in the Bahamas. This was their second trip to this resort. After booking and prior to their arrival, the defendant sent emails stating that the plaintiff’s would have to sign several documents. One of the documents was a release which contained a forum selection clause or venue clauses.

No family members of the plaintiff opened any of the documents attached to the emails, but they did acknowledge receiving the emails.

At the resort during check-in, several documents, including the release were signed by the spouse.

Mr. Son stated that the check-in process lasted approximately two to three minutes, that he was asked to sign several forms, and that he did not read the forms. Mr. Son said that the resort’s front desk staff did not explain the contents of the forms. Mr. Sonfurther stated that he did not intend to sign a forum selection clause, nor was he authorized to sign one on his wife’s behalf. However, Mr. Son did not state that his wife had affirmatively told him not to sign any documents regarding her legal rights.

While taking an excursion “Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat.

The plaintiff’s filed suit in Federal District Court for the Southern District of Florida. The defendant’s filed a Motion to Dismiss the case based on the forum selection clause the plaintiff’s had signed. Meaning the lawsuit should be dismissed because the lawsuit was filed in the wrong place.

Since the plaintiff files the lawsuit, the place where the plaintiff files the lawsuit is the original forum or venue of the suit. The Burden is then on the defendant to argue the location of the lawsuit is incorrect.

Summary of the case

A forum selection clause or a venue clause is a clause in a contract where the parties agree where any lawsuit will be held. A jurisdiction clause, usually heard in the same breath determines what law will be applied to the contract. For a forum selection clause to be held to be unreasonable, it must fail one of the following tests:

…1.) when the formation of the clause was induced by fraud or overreaching; 2.) when the plaintiff would be deprived of her day in court because of inconvenience or unfairness; 3.) when the chosen law would deprive the plaintiff of a remedy, or 4.) when enforcement of the provisions would contravene public policy.

Public policy, number 4, is not necessarily the same public policy that voids releases.

The plaintiff’s argued that the forum selection clause at issue was void because:

…that the forum selection clause was formed by fraud and overreaching, that Plaintiffs will be deprived of their day in court if they have to sue in the Bahamas, that Bahamian law is fundamentally unfair, and that enforcement of the forum selection clause would contravene public policy.

The court took on each of the arguments of the plaintiff individually and then tackled several arguments not raised by the plaintiff.

Fraud and Overreaching

The plaintiff’s argued the contract was signed because of fraud and over-reaching. The argument was based on the claim that the plaintiff’s did not receive notice of the clause prior to their arrival in the Bahamas so they could cancel the trip “with impunity.” They also argued the short check in time deprived the plaintiffs of the ability to read and comprehend the rights the plaintiff was giving up when he signed the contracts.

The court’s response to this argument was:

A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. In particular, the clause must be reasonably communicated to the consumer such that the consumer knows that the contract contains terms and conditions which affect the consumer’s legal rights.

[A]bsent a showing of fraud or mental incompetence, a person who signs a contact cannot avoid her obligations under it by showing that she did not read what she signed.

The clause at issue was not hidden, was not disguised in the release; the plaintiff ignored the warning that stated, “read before signing,” all of which was not enough to void the contract. “This willful ignorance cannot be used to invalidate an otherwise binding provision.”

The argument that they did not receive notice was also thrown out by the court. Just because the plaintiff did not read the emails, does not mean the plaintiff did not have the opportunity to see the clause prior to the trip.

The plaintiff then argued that the injured wife did not give the husband the authority to sign away her rights.

Plaintiffs argued at the hearing that Mrs. Son did not sign the forum selection clause, nor did she grant her husband authority to sign away her legal rights. Thus, Plaintiffs claim, the forum selection clause could not apply to Mrs. Son. The Court disagrees. First, Mrs. Son admitted that she granted her husband authority to complete all procedures necessary to check-in to the Atlantis Resort. Thus, Mr. Son had “implied authority” to sign the forum selection clause on Mrs. Son’s behalf, because it was necessary for Mr. Son to sign the clause to complete check-in.

A spouse may sign for another spouse in some states. Additional, one spouse who did not sign taking advantage of the benefits of the contract may affirm the contract. Add to that the fact the plaintiff had signed a nearly identical clause during their prior trip and their argument for fraud and overreaching was denied.

Public Policy

The plaintiff did not present any case law to support the violation of Public Policy claim so the court found it had no merit.

Discouraging Legitimate Claims

The court quickly dismissed this argument. Because the forum selection clause was based where the defendants had their business, therefor, the forum selection clause was related to the dispute. The courts and the law where the accident occurred were legitimate; therefore, the forum selection clause was related to the dispute. Consequently, the court could not find bad faith.

Forum Non Conveniens

The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because of the inconvenience of the plaintiff’s chosen forum.” Under the doctrine of forum non conveniens the court can dismiss a claim when the plaintiff’s chosen forum imposes a heavy burden on the defendant or upon the court and the plaintiff is unable to offer any specific reason of convenience to support this choice.

The decision process to support a forum non conveniens claim is:

First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. The Court must then consider whether private interest factors suggest that the Court should disturb the strong presumption in favor of a plaintiff’s choice of forum. If the Court finds that the private interest factors are indeterminate, the Court must then proceed to consider whether considerations of public interest favor a trial in the foreign forum. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum.

An adequate alternative forum exists when the defendant is “amenable to process” in the new foreign forum. “The defendant has the burden of proving that the proposed forum is adequate, and the proposed forum has jurisdiction over the claims.” Since the defendants were based in the Bahamas and thus amenable to service of process there the plaintiff must show that they would not receive a fair trial in the Bahamas. They plaintiffs could not do that. The argued they could not afford a trial in the Bahamas since contingency fee agreements were not allowed, however, money is not part of the argument in jurisdiction and venue arguments.

Private Interest Factors

The court also reviewed the private interest factors in the case and how those applied to its decision.

Factors considered to be in a litigant’s private interest include the ease of access to sources of proof, availability of compulsory process for witnesses, cost of obtaining attendance of witnesses, ability to view the premises (if necessary), and “all other practical problems that make trial of a case easy, expeditious and inexpensive.

The court found the majority of the witnesses were located in the Bahamas were the accidents happened. The court also found the vital witnesses were all located in the Bahamas. The Florida court could not necessarily subpoena and compel the non-employee witnesses in the Bahamas to appear in court in the US. Consequently, the defendant would be at risk in defending its case because it could not compel the witnesses needed to defend its case. The witnesses in Maryland and Washington DC of the plaintiffs were for the damages’ phase of the trial and consequently, not vital.

More importantly, the plaintiff could not identify any witnesses who could testify in Florida that could not testify in the Bahamas. The distance was relatively the same to get to either place from Maryland and DC. Only one actual witness had been identified by the plaintiff as a resident of Florida, and that was an agent for the defendant.

The defendant also argued they wanted to bring the real party at interest, the excursion boat company into the trial as a third party defendant. If the excursion boat company had no interest in Florida, the Florida court could not compel the third parties to trial in Florida. The plaintiff would also argue that the defendants were agents of the third parties, and the defendants would be defending claims of agency without the benefit of the third parties to support its claims or defenses.

Public Interest Issues.

The court quoted the US Supreme Court in its analysis of the public policy issues of forum selection.

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

A jury in Florida has no interest in hearing or adjudicating an incident that occurred outside of its state or even the US. Bahamian law will govern the dispute because the law of the forum where the accident occurred is controlling. Forcing a Florida judge to interpret and apply Bahamian law is also an inconvenience that the court does not want to support.

Reinstatement of the Suit

The final issue that some courts, including this one reviewed is whether the plaintiffs will be foreclosed from filling suit in the proper forum if this case is dismissed. In this case, the defendant agreed to extend the statute of limitations and allow the plaintiff to file in the Bahamas after the appropriate statute had run.

Consequently, the case was dismissed.

So Now What?

 

Here, the only defendant the plaintiffs could catch was obviously in Florida so the trial was started in Florida. The defendant’s did not have an employee in Washington DC or Maryland, and the plaintiffs did not argue what is called minimum contacts to force the defendant to litigate in DC or Maryland.

Minimum contacts means the defendant does business in the state where the plaintiff filed the lawsuit and has the necessary minimum contacts to sue in that state. The amount of this contact is different in each state.

However, as here, a forum selection clause or jurisdiction and venue clauses are paramount and supersedes the rules governing the location of trials.

Forum selection clauses or jurisdiction and venue clauses provide immense advantages for recreational businesses.

1.      It prevents litigating a release in a state where releases are invalid or void. Courts in Louisiana are going to be hesitant to apply the defense of a release because a release is void in Louisiana.

2.    It makes sure the law that is important will be applied to the case. Think about applying Louisiana law to a ski accident in Colorado? Think about someone in Florida trying to understand the inherent risks of skiing as set out in the Colorado Ski Safety Statute.

3.    It makes sure the area or community that has an interest in the industry or the business has control over the case. Again, a ski accident in Louisiana where the jury does not care or understand skiing versus suing in Colorado where the jury understands and has an interest in Skiing.

4.    It eliminates arguments, time and costs of trying to get a trial back to the place that would serve the interest of justice best.

5.     It forces the plaintiff to find legal counsel in a state or area that they may not be familiar. This may eliminate all but major claims.

6.    It will force the plaintiff to expand money to prosecute a claim in a foreign (other than their own state) jurisdiction. Some of those funds may not be recoverable even if the plaintiff is successful at trial.

One interesting issue was the “impunity” argument. When you give a guest information after they have booked the trip which may change their opinion of the trip from a legal perspective, such as adding a release or another contract provisions, many states may require you to refund the guest’s money in full based on the release or additional contract terms.

Your release has limited value, if any, in many cases may be worthless, if it does not have a forum selection clauses or jurisdiction and venue clause.

IF YOU DON’T HAVE A FORUM SELECTION/JURISDICTION & VENUE CLAUSE IN YOUR RELEASE, YOUR RELEASE CAN FAIL. Contact Me.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Forum Selection Clause, Jurisdiction and Venue Clause, Atlantis, Kerzner, Bahamas, Hotel, Release, Excursion, Excursion Boat, Third Party,

 

 

WordPress Tags: Jurisdiction,Venue,Forum,Selection,clauses,Where,lawsuit,Advance,plaintiff,resort,Bermuda,contingency,jury,money,foreigners,Americans,Miami,Kerzner,International,Resorts,Dist,LEXIS,Date,Decision,September,Miyoung,Youngkeun,Defendant,North,America,Bahamas,Island,Hotel,Company,Paradise,Claims,Response,Motion,Dismiss,Defenses,Atlantis,arrival,clause,spouse,desk,wife,injuries,boat,Federal,District,Court,Southern,Florida,Burden,location,Summary,breath,formation,fraud,enforcement,policy,Public,Plaintiffs,Bahamian,arguments,argument,consumer,incompetence,person,obligations,ignorance,provision,Just,husband,Thus,procedures,Additional,advantage,fact,violation,Legitimate,defendants,accident,faith,Conveniens,doctrine,action,Under,convenience,factors,presumption,Dismissal,agreements,Private,Interest,litigant,cost,attendance,premises,accidents,employee,Maryland,Washington,phase,agent,agents,agency,Issues,Supreme,analysis,Administrative,litigation,origin,relation,affairs,controversies,laws,incident,Reinstatement,Suit,statute,limitations,Here,Minimum,trials,advantages,Courts,Louisiana,Think,Colorado,area,industry,Again,justice,Some,guest,information,opinion,perspective,RELEASE,FAIL,Contact,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,Negligence,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Excursion,Third,behalf,upon,whether

 

Advertisements

One Comment on “Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases. Where the lawsuit will be (where/Venue) and what law will be applied (Jurisdiction) is the sole issue in this case.”

  1. Courtney Devlin says:

    Before this case, I was not aware or familiar with forum selection clauses. Now I have a better understanding of what they can do for a recreational business and the importance of incorporating them into a contract. It is also important to always inform participants about all the details of a contract and to not withhold any information. This case was won because the defendant could prove that they had emailed the couple and had informed them of the clause. It is also important to keep a record of all documents and paperwork so that there is always proof for a case. I found it interesting a forum selection clause gives a business the ability to choose which court a trial would take place. This is too the advantage of the company who would likely choose a court that would understand and be familiar with the company and the types of activities they run.

    Like