Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Blake Haines, Plaintiff,

v.

Get Air Tucson Incorporated, et al., Defendants.

No. CV-15-00002-TUC-RM (EJM)

United States District Court, D. Arizona

October 19, 2018

ORDER

Honorable Rosemary Marquez United States District Judge.

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).

I. Standard of Review

A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

II. GALLC’s Objection to Judge Markovich’s Report and Recommendation

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)

Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.

III. Discussion

As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.

A. Existence of Duty

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.

The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care, increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

B. Breach

The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

C. Liability of GALLC

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.

—–

Notes:

[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.

[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).

—–


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.

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

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

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

Miyoung Son and Youngkeun Son, Plaintiffs, v. Kerzner International Resorts, Inc., et al., Defendants.

NO. 07-61171-CIV-MARRA/JOHNSON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2008 U.S. Dist. LEXIS 67482

September 5, 2008, Decided

September 5, 2008, Entered

COUNSEL: [*1] For Miyoung Son, Youngkeun Son, Plaintiffs: Alexander Rundlet, Victor Manuel Diaz, Jr., LEAD ATTORNEYS, Podhurst Orseck, P.A., Miami, FL; Katherine Warthen Ezell, Robert C. Josefsberg, LEAD ATTORNEYS, Podhurst Orseck Josefsberg et al, Miami, FL; Gene Locks, Jonathan W. Miller, Locks Law Firm, Philadelphia, PA; Stephen J. Nolan, Stephen J Nolan Chartered, Baltimore, MD.

For Kerzner International Resorts, Inc., a Florida corporation, in its own right, doing business as Paradise Island, doing business as Destination Atlantis, doing business as Atlantis, Kerzner International North America, Inc., a Delaware corporation, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Limited, a company of the commonwealth of the Bahamas, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Bahamas Limited, a company of the commonwealth of the Bahamas, in its own right, as a subidiary of Kerzner International Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Island [*2] Hotel Company Limited, a company of the commonwealth of the Bahamas, in its own right, as subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Paradise Island Limited, a company of the commonwealth of the Bahamas, in its own right, as a subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Defendants: Bruce Scott Liebman, Michelle Ioanna Bougdanos, LEAD ATTORNEYS, Akerman Senterfitt & Eidson, Fort Lauderdale, FL.

JUDGES: KENNETH A. MARRA, United States District Judge.

OPINION BY: KENNETH A. MARRA

OPINION

OPINION AND ORDER ON MOTION TO DISMISS

THIS CAUSE comes before the Court on Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited’s Motion to Dismiss Plaintiffs’ Complaint (DE 15), filed November 12, 2007. The motion is now fully briefed and is ripe for review. The Court held an evidentiary hearing on this matter on June 19, 2008. The Court has carefully [*3] considered the motion and the record and is otherwise fully advised in the premises.

Background

On August 17, 2007, Plaintiffs Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”) ( together, “Plaintiffs”) filed a four-count Complaint (DE 1) against Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Island Limited, 1 Nassau Cruses, Limited (“Nassau Cruses”), Robert Brown, Rodger Munroe, and Silvin Brown (together, “Defendants”), asserting claims of negligence and loss of consortium against all Defendants. The facts, as alleged in the Complaint and adduced at the evidentiary hearing, are as follows: Mr. and Mrs. Son, residents of Maryland, purchased a vacation package from the Kerzner Defendants for a four-night stay at the Atlantis Resort in the Commonwealth of the Bahamas in July 2005. (Compl. PP 3, 15.) The vacation was to last from August 17 to August 21, 2005. Plaintiffs were to be accompanied by their two children, Mrs. Son’s sister and brother-in-law, their three children, and a nanny. (Compl. P 15.) While in the Bahamas, Plaintiffs [*4] booked an excursion through Atlantis’s Tour and Excursions Center. (Compl. P 17.) While on the excursion, Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat. (Compl. PP 20-21.)

1 The Court will refer to the moving parties, Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited, collectively as the “Kerzner Defendants.”

Findings of Fact

1. After booking the trip, Plaintiffs received from the Kerzner Defendants a package in the mail containing information about the trip; however, the package did not contain any mention that Plaintiffs would be expected to sign a forum selection clause or choice of law clause upon check-in at the Atlantis Resort. (Pl. Ex. 1; Def. Ex. 5.)

2. On July 24, Mrs. Son received two e-mails from the Kerzner Defendants with additional information about her upcoming trip – one regarding her booking, and one regarding her sister’s family’s booking. (Pl. Ex. 3, 4; Def. Ex. 3, 4.)

3. Mrs. Son testified that she did not open the e-mails prior to [*5] departing for the Bahamas because she did not recognize the sender. Mrs. Son also testified that she did not open the e-mails and read the attached documents until very recently, but she admitted that she did receive the e-mails prior to her trip.

4. One of the documents contained in each e-mail that Mrs. Son received after making the booking stated as follows:

During guest registration at Atlantis, Paradise Island you will be asked to sign a form agreeing to the following terms related to any claims you may have as a result of your stay at the resort: I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited 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, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The [*6] foregoing shall apply to all persons accompanying me, and I represent that I have the authority to sign this document on their behalf.

(Pl. Ex. 3, 4; Def. Ex. 3, 4.)

5. Mrs. Son testified that she did not know she would have to sign such a document upon arrival.

6. Upon arrival, Mr. Son completed the check-in process. (Pl. Ex. 2; Def. Ex. 1.) Mr. Son signed a form on his own behalf “and the members of [his] family group or others listed below” (including Mrs. Son) which contained the following language:

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, irrevocably agree to the Supreme Court of the Bahamas as the exclusive venue for any such proceedings whatsoever.

(Pl. Ex. 2; Def. Ex. 1.) 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. Son further stated that he did not intend to sign a forum selection clause, [*7] 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.

7. Mrs. Son testified that she did not authorize her husband to sign a forum selection clause, but Mrs. Son also did not state that she told her husband he was not to sign any legal documents on her behalf. Mrs. Son testified that she did authorize her husband to complete all necessary check in procedures on her behalf.

8. Plaintiffs previously visited the Atlantis Resort in December 2001. When completing check-in formalities in 2001, Mr. Son signed a form that states as follows:

I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Sun International Hotels Limited, Sun International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited 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, irrevocably [*8] agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The foregoing shall apply to all persons accompanying me and I represent that I have the authority to sign this document on their behalf.

(DE 54.)

Standard of Review

In the Eleventh Circuit, a motion to dismiss on the basis of a forum selection clause is brought pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure as a motion to dismiss for improper venue. Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1290 (11th Cir. 1998). Forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). The Court may make any findings of fact necessary to resolve a motion to dismiss for improper venue, so long as the resolution of factual disputes is not an adjudication on the merits of a case. Bryant v. Rich, 530 F.3d 1368, 2008 WL 2469405 at *5 (11th Cir. 2008). Determining the reasonableness of a forum selection clause is a fact-specific inquiry to be made on a case-by-case basis. [*9] Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983).

Because the Court is sitting in diversity, Florida substantive law applies. See, e.g., Admiral Ins. Co. v. Feit Management Co., 321 F.3d 1326, 1328 (11th Cir. 2003) (“Sitting in diversity, we apply the substantive law of the forum state unless federal constitutional or statutory law compels a contrary result.”).

Discussion

A forum selection clause will be held “unreasonable” in only four circumstances: 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. Lipcon, 148 F.3d at 1292; see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594-95, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1988). Some courts have also made prior notice of the clause an element to consider in determining reasonableness. See, e.g., Sun Trust Bank v. Sun International Hotels, Ltd., 184 F. Supp. 2d 1246, 1258 (S.D. Fla. 2001); Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1012 (D. Haw. 1992). 2 Here, Plaintiffs [*10] argue 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 will address each of these arguments in turn.

2 In Shute, the Supreme Court did not state that lack of notice of the forum selection clause was grounds for finding that the clause was unreasonable. In fact, the Court stated that it would not “address the question of whether respondents had sufficient notice of the forum clause before entering the contract for passage” because the respondents had conceded that they had sufficient notice. Shute, 499 U.S. at 590. However, the Supreme Court found notice relevant insofar as the Court found a party’s right to reject the contract “with impunity” essential to its enforceability. Id. at 595. Thus, notice is a relevant inquiry when considering a forum selection clause to determine whether the party could walk away from the contract with a minimal penalty. In Corna, for instance, the Court found that two to three days notice of the forum selection [*11] clause insufficient, because the plaintiffs would have forfeited the entire ticket price for their trip if they had canceled the trip upon first learning of the forum selection clause. Corna, 794 F. Supp. at 1011-1012; cf. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 561 (S.D. Tex. 2002) (enforcing forum selection clause where cancellation at time notice of clause received by passenger would have resulted in refund of only 50% of purchase price).

Fraud and Overreaching

Plaintiffs argue that the formation of the agreement including the forum selection provision was “induced by fraud and overreaching.” (Pl. Resp. 9.) Plaintiffs claim that they “never received . . . any notice of a forum selection clause prior to arriving at the hotel in the Bahamas.” (Id.) Plaintiffs do not argue bad faith on the Kerzner Defendants part, and their sole argument regarding fraud and overreaching relates to notice. Plaintiffs also do not argue that the forum selection clause was hidden on the forms they signed. Instead, they argue that they did not receive notice of the clause prior to their arrival in the Bahamas, so they could not cancel “with impunity.” Further, they argue that the short check-in [*12] time period effectively deprived Mr. Son of the ability to read and comprehend the rights he was surrendering when he signed the document. (See Pl. Resp. 9-10.)

A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. Shute, 499 U.S. at 593-94. 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. Shankles, 722 F.2d at 864.

With respect to the time for check-in, a perusal of the “Acknowledgment, Agreement, and Release” form shows that the clause is not hidden in any way. The page contains seven paragraphs regarding limitations on liability, choice of law, and other legal provisions. (Pl. Ex. 2; Def. Ex. 1.) While the forum selection provision is not written in a larger font, in bold font, or italicized, it is still easily readable and is set off in its own paragraph in the middle of the front side of the form. Further, the form is marked at the very top “READ BEFORE SIGNING.” Thus, the Court finds that the form clearly and unmistakably conveys that it contains [*13] terms affecting the consumer’s legal rights. The clause is not hidden among other, non-legal provisions, nor is the clause physically disguised. The fact that Mr. Son chose not to read the form that is clearly marked “read before signing” does not excuse Plaintiffs from their contractual obligation. See, e.g., Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350, 1352 (11th Cir. 1986) (“[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 check-in process was doubtless hurried, but the Court finds that Mr. Son was not rushed through the process so as to prevent him from taking as much time as he needed or desired to review the document thoroughly. Mr. Son made a conscious choice – he chose to sign the form without reading it in order to speed the check-in process along. This willful ignorance cannot be used to invalidate an otherwise binding provision.

Plaintiffs then argue that they did not receive notice of the forum selection clause prior to their arrival at the Atlantis resort, such that they could not reject the provision “with impunity.” In Sun Trust [*14] Bank, under similar facts, the court concluded that the same forum selection clause disputed in this case was unenforceable because the plaintiffs did not have an “objectively reasonable opportunity to consider and reject” the clause. Sun Trust Bank, 184 F. Supp. 2d at 1261. The court was presented with “undisputed” evidence that the “forum-selection clause was presented to [plaintiff] for the first time upon arrival in the Bahamas.” Id.

Contrary to Plaintiffs assertions, this case is distinct, and Sun Trust Bank is inapplicable. First, Plaintiffs had both visited the Atlantis resort in 2001, and Mr. Son signed a nearly identical forum selection provision upon arriving at the resort in 2001. Having previously signed a nearly identical forum selection provision in 2001, it is reasonable to expect that Plaintiffs would be asked to sign a similar provision on their return visit. In Horberg v. Kerzner Resorts International Ltd., No. 07-20250-CIV-UNGARO, 2007 U.S. Dist. LEXIS 97693, slip op. at 5-6 (S.D. Fla. Aug. 6, 2007), the court enforced the same forum selection clause disputed in this case on the basis that the plaintiffs had visited the Atlantis resort on previous occasions and thus “had a reasonable opportunity [*15] to consider and reject the forum selection clause.”

Also making this case distinct from Sun Trust Bank is the fact that the Kerzner Defendants provided Plaintiffs with prior notice that they would be asked to sign a form requiring all suits brought against the Kerzner Defendants be brought in the Bahamas. Plaintiffs concede that Mrs. Son received two e-mails on July 24, 2005, that contained an attachment titled “Terms and Conditions.” (Pl. Ex. 4, 5.) In the section labeled “Atlantis Registration,” the attachment explained that all guests would be asked to sign a forum selection clause upon check-in.

Mrs. Son testified that she did not remember receiving these e-mails from the Kerzner Defendants, and Mrs. Son also testified that she did not open e-mails from unrecognized senders because of the threat of computer viruses. Mrs. Son further testified that she did not expect to receive e-mails regarding her Atlantis resort trip. However, Mrs. Son received these e-mails the very same day that she booked her trip, and both e-mails had “Travel Plan” in the subject line with a reservation number. Logic would dictate that Mrs. Son must have provided her e-mail address over the phone when making [*16] the reservation since she received e-mails regarding her booking shortly thereafter. Thus, while the Court finds Mrs. Son’s testimony credible, the Court does not agree that her decision not to read the e-mails was reasonable. 3 Mrs. Son chose not to read the e-mails, but the e-mails provided sufficient notice of the forum selection and choice of law clauses her family would be required to sign upon arrival at the Atlantis Resort.

3 At the hearing, Plaintiffs’ counsel consistently averred that Plaintiffs did not have a “duty” to open the e-mails they received regarding their trip but that Plaintiff had a “duty” to open packages sent to her through the U.S. Mail. However, the Court fails to see how Plaintiffs make this distinction. Plaintiffs have not identified a specific duty that Plaintiffs might have had to open regular mail versus e-mail. Plaintiffs’ could have decided not to open the package received through the U.S. Mail as freely as they decided not to open the e-mails. The Court cannot conceive of a “duty” to open a letter any more than it can conceive of a “duty” to open an e-mail. Plaintiffs’ bear the risk that they will lose valuable information or documentation when they [*17] choose not to receive a letter, e-mail, or any other form of communication. Plaintiffs weighed the risk of losing vital information against the risk of receiving a computer virus when deciding not to open the e-mails, just as Plaintiffs weighed the risk of losing vital information against the risk of receiving anthrax powder when deciding to open the mailed package. The Kerzner Defendants’ should not be held liable because Plaintiffs’ risk calculus led them not to open the documentation.

Finally, 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. 4 Alternatively, by signing the form which clearly stated he had the authority to bind everyone in his party, Mr. Son acted with “apparent [*18] authority,” because the Atlantis Resort reasonably believed his representations that he had the authority to bind Mrs. Son. 5

4 The Restatement (Third) of Agency defines “implied authority” as either (1) the authority “to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.” Restatement (Third) of Agency § 2.01 cmnt. b (2006).

5 “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has the authority to act on behalf of the princpal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03.

The parties did not brief the issue of agency, but the parties proceeded to argue the issue of agency at the hearing. In Florida, the rule of lex loci contractus determines the law to be applied when determining an issue of contract law. See Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988). [*19] Because the contract was executed in the Bahamas, Bahamian law would apply to whether Mr. Son was acting as Mrs. Son’s agent and whether she was bound by Mr. Son’s signature. The parties, however, have not provided any evidence of (nor can the Court determine on its own initiative) the scope of Bahamian agency law. The Court has turned to the Restatement (Third) of Agency as a general guideline, not as an authoritative source on the law of the Commonwealth of the Bahamas.

Moreover, a party need not sign a forum selection clause to be bound by the terms of the clause; a party can be bound if it is “closely related” to the dispute. Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209-10 (7th Cir. 1993); see also E.I. DuPont de Nemours and Co. v. Rhone Poulenc Fiber and Resin Intermediaries, S.A.S., 269 F.3d 187, 195 (3d Cir. 2001); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988). Mrs. Son is at the center of this dispute (indeed, the parties are arguing over who is responsible for her injuries) and is thus “closely related.” Therefore, she can be bound to the terms of the clause whether she actually signed it or not. Again, the Court has explained that [*20] she received all the notice to which she was entitled under the law, and she should have been aware that agreeing to a forum selection clause was part of the check-in process.

In sum, the Kerzner Defendants’ burden in this situation was only to provide reasonable notice to Plaintiffs, which the Kerzner Defendants achieved. Once the Kerzner Defendants sent Plaintiffs notice of the forum selection clause, it was Plaintiffs’ decision as to whether they read the notification. The Court rejects Plaintiffs’ argument that Defendants somehow needed to do more. Plaintiffs chose not to read the notice, and the consequences are theirs to bear. Thus, the forum selection clause will not be invalidated on this ground.

Deprivation of Day in Court and Fundamental Unfairness

Plaintiffs argue that they will be “effectively deprived of their day in court” because of the “inconvenience” of litigating in the Bahamas and because of the fundamental unfairness of Bahamian law. (Pl. Resp. 10.) First, Plaintiffs claim that Mrs. Son cannot return to the Bahamas because of the “great mental and emotional anguish” she would suffer if she was forced to return there. Mrs. Son testified that she did not want to return [*21] to the Bahamas; however, she admitted that her doctors have never stated that she is physically or mentally incapable of returning. Instead, her prohibition on travel to the Bahamas appears self-imposed and, as a result, not a persuasive justification to invalidate the forum selection clause.

Likewise, Plaintiffs claim they are “financially unable to pursue litigation in the Bahamas, where contingent fees are prohibited.” (Pl. Resp. 11.) This argument is also unavailing. The Court cannot give substantial weight to fact that contingency fee arrangements are not available in foreign forums. Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1430 (11th Cir. 1996). As the Fifth Circuit Court of Appeals has stated, “If the lack of a contingent-fee system were held determinative, then a case could almost never be dismissed because contingency fees are not allowed in most foreign forums.” Coakes v. Arabian American Oil Co., 831 F.2d 572, 576 (5th Cir. 1987) (discussing contingency fee arrangements as part of forum non conveniens analysis).

Public Policy

Plaintiffs argue that “enforcement of the provisions of the Release would contravene a strong public policy, because enforcement of the forum [*22] selection clause would imply enforcement of the entire Release.” (Pl. Resp. 11.) Plaintiffs, however, have provided no cases to suggest that enforcement of the forum selection clause by this Court would compel a Bahamian court to enforce the release of liability. The Court thus finds this argument lacks merit.

Discouraging Legitimate Claims

Finally, Plaintiffs argue that Defendants “set the Bahamas as the forum ‘as a means of discouraging [hotel guests] from pursuing legitimate claims.'” (Pl. Resp. 12.) Plaintiffs point to a case in which the Kerzner Defendants chose to litigate in New Jersey state court, Paradise Enterprises Ltd. v. Sapir, 356 N.J. Super. 96, 811 A.2d 516 (N.J. Super. Ct. 2002), to show that the Kerzner Defendants can indeed litigate in U.S. forums. Plaintiffs claim that the fact that the Kerzner Defendants will litigate in New Jersey when they so choose shows bad faith selecting the Bahamas to litigate these claims. The Court also finds this argument unpersuasive. As the Supreme Court held in Shute, where the defendant selected a Florida forum, “[a]ny suggestion of such a bad-faith motive is belied by two facts: Petitioner has its principal place of business in Florida, and many of its [*23] cruises depart from and return to Florida ports.” Here, the Kerzner Defendants, who run a resort in the Bahamas, elected a Bahamian forum to litigate disputes arising out of visitors to the Bahamian resort who are injured while staying in the Bahamas. Had Defendants selected a trial court in Thailand to settle tort claims arising out of resort stays in the Bahamas, one could make a colorable argument that the selected forum was unrelated to the dispute and selected to discourage individuals from bringing legitimate claims. Where the defendant operates a business in the selected forum and the actions that would give rise to litigation would also occur in the selected forum, the Court cannot conclude that the defendant acted in bad faith.

Accordingly, the Court finds that the forum selection clause is enforceable, and this case shall be dismissed subject to Plaintiff’s ability to refile the action in the Supreme Court of the Bahamas.

Forum Non Conveniens

Alternatively, the Court believes that this action should be dismissed on the basis of the doctrine of forum non conveniens. The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because [*24] of the inconvenience of the plaintiff’s chosen forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Under the doctrine, dismissal is “appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).

Analytically, the Court’s analysis falls into three stages. First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). 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. Id. 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. Id. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum. Piper Aircraft, 454 U.S. at 249. This strong presumption in favor of the plaintiff’s choice [*25] of forum is strongest when the plaintiff is a citizen or resident of the U.S. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1102 (11th Cir. 2004).

Adequate Alternative Forum

An adequate alternative forum exists when the defendant is “amenable to process” in the foreign forum. Piper Aircraft, 454 U.S. at 254 n.22. The defendant bears the burden of establishing that its proposed forum is adequate and has jurisdiction over the case. La Seguridad, 707 F.2d at 1307. Here, all but two of the Defendants in this action are Bahamian citizens or corporations. (Compl. PP 4-14.) Defendants claim that they are “undoubtedly amenable to service of process in the Bahamas.” (Def. Mot. 15.) Likewise, Defendants have presented evidence that the Bahamian legal system recognizes negligence actions like Plaintiffs’ claims in the instant case. (Pyfrom Aff. P 10.) Thus, there is no indication that Bahamian courts would not afford Plaintiffs a remedy for their claims. Moreover, courts are loathe to hold that other forums are inadequate. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001). Plaintiffs have not intimated that Bahamian courts would be inadequate. Thus, [*26] the Court finds that the Supreme Court of the Bahamas is an adequate alternative forum for the instant action.

Private Interest Factors

The Supreme Court has directed district courts to consider the “private interest of the litigant.” Gulf Oil, 330 U.S. at 508. 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.” Id.

The Kerzner Defendants argue that “all of the documents related to Plaintiffs’ allegations in the Complaint are in The Bahamas.” (Def. Mot. 16.) The Kerzner Defendants do not state what documents are in the Bahamas, nor do they argue that such documents could not be brought to Florida in the event that trial was conducted here. Plaintiffs, meanwhile, have noted that they are already in possession of police and medical records from the Bahamas (see Childs Aff.), and such documents could easily be disclosed to Defendants during discovery. This factor weighs in Plaintiffs’ favor.

Notwithstanding [*27] the relative ease of access to documentary evidence, the ease of access to witnesses and the ability to compel attendance at trial is not as clear. Plaintiffs have only identified one Florida citizen witness – the corporate representative of Defendant Kerzner International Resorts, Inc. The remaining witnesses Plaintiffs seek to call are largely medical professionals from Maryland or Washington, D.C. (See Pl. Resp. 14-16.) Defendants, on the contrary, note that many prospective witnesses are located in the Bahamas: the staff at Doctors Hospital in Nassau, Bahamas, who initially treated Mrs. Son; representatives of Defendant Nassau Cruises, Ltd.; Defendants Robert Brown, Rodger Munroe, and Silvin Brown; as well as employees of the Atlantis Resort. (Def. Mot. 16.)

The Court recognizes that in Ward v. Kerzner International Hotels Ltd., Judge Jordan held that the fact that several witnesses resided in the Bahamas was insufficient to overcome the strong presumption in favor of the plaintiff. No. 03-23087-CIV, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3 (S.D. Fla. Mar. 30, 2005). In that case, like in Sun Trust Bank, a majority of the Bahamian witnesses were employees of the defendants who, defendants claimed, [*28] would appear voluntarily. Id.; see also Sun Trust Bank, 184 F. Supp. 2d at 1263-64. In Ward, only two Bahamian witnesses were not employed by the defendants. Ward, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3. By contrast, in this case, most of the relevant witnesses are not employees of the Kerzner Defendants. Some of the prospective witnesses are Defendants in this action, but this Court cannot effectively subpoena these foreign nationals residing in the Bahamas and compel them to appear before this Court. In fact, these Bahamian witnesses are the very witnesses that will describe the events leading to Mrs. Son’s injuries (i.e., the liability phase). The U.S. witnesses, who for the most part are medical professionals, will likely be used for the damages phase of trial. Looking at the quality of the proposed witnesses, rather than absolute numbers of potential witnesses, the Court finds that none of the most vital witnesses needed to resolve the issue of liability reside in Florida, and a substantial number of these witnesses reside in the Bahamas.

The Kerzner Defendants may be able to interview agents of Nassau Cruses, Ltd., or some of the other individual Defendants, but the Kerzner Defendants would be [*29] forced to present testimony at trial in Florida in the form of depositions or letters rogatory. Were this situation limited to a pair of witnesses whose testimony was not in controversy (as in Ward), the Kerzner Defendants would be expected to proceed using these devices. Where several of the Defendants are outside of the compulsory process of this Court and where those witnesses are the Kerzner Defendants’ main witnesses to challenge Plaintiffs’ claims of liability, as in this case, the Court believes that the Kerzner Defendants would be severely prejudiced in their ability to defend their case. As the Supreme Court explained in Gulf Oil, the doctrine of forum non conveniens should be applied to avoid these situations: “Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.” 330 U.S. at 511.

Moreover, Plaintiffs’ have not identified a single witness who would be available to testify if trial were held in Florida but would not be available to testify at trial in the Bahamas. As all but one of Plaintiffs’ witnesses are [*30] coming from locations outside of this district, all but one will have to travel. The Court believes that it would be equally feasible for Plaintiffs to arrange plane tickets and hotel stays in Nassau, Bahamas, as it would in West Palm Beach, Florida. These cities are roughly 200 miles apart, a relatively short distance considering that Plaintiffs will have to travel roughly 1,000 miles to reach either forum. While there may be some inconvenience for the one Florida witness to travel to the Bahamas, Plaintiffs cannot realistically contend that the inconvenience of traveling to Nassau would vary significantly from the inconvenience of traveling to West Palm Beach. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107 (2d Cir. 2000) (“For any nonparty witnesses, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of a trial in England.”).

Finally, it has been widely recognized that the inability to implead other parties directly involved in a controversy is a factor weighing heavily against the plaintiff’s choice of forum. See, e.g., Reid-Walen v. Hansen, 933 F.2d 1390, 1398 (8th Cir. 1991); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (2d Cir. 1975). [*31] In this case, like in Piper Aircraft, the joinder of Nassau Cruises, Ltd., Robert Brown, Rodger Munroe, and Silvin Brown is “crucial to the presentation” of the Kerzner Defendants’ case. 454 U.S. at 259. Plaintiffs want to show that Nassau Cruises and these individuals are the agents of the Kerzner Defendants and that the Kerzner Defendants are vicariously liable for her injuries. Without the ability to join this corporation and these individuals meaningfully to this case, the Kerzner Defendants would be forced to defend claims of vicarious liability with limited benefit of evidence from the persons actually involved in the incident giving rise to the claim. The Court finds this burden to be substantial. 6 Conversely, the Court can find no substantial burden on Plaintiffs (other than a financial burden from Plaintiffs’ inability to retain counsel on a contingency fee basis) from having to litigate their dispute in the Bahamas.

6 Unlike all of the cases involving injuries at resorts cited by Plaintiffs, this case is distinct because it involves an injury allegedly caused by third parties. In every other case, the plaintiff alleged that the resort was directly liable for negligence. Here, [*32] Plaintiffs do not argue direct negligence by the Kerzner Defendants, and the Kerzner Defendants can only defend their own case by compelling the attendance of the alleged direct tortfeasors. While these tortfeasors are nominally part of this lawsuit and have been served, their appearance in Court cannot be guaranteed.

After considering the private interest factors, the Court finds that they weigh substantially against Plaintiffs’ selection of the Southern District of Florida as their forum. The Court will now consider the public interest factors.

Public Interest Factors

In Gulf Oil, the Supreme Court described the considerations of public interest that district courts should consider on a motion to dismiss for forum non conveniens:

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 [*33] 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.

Gulf Oil, 330 U.S. at 508-09. Additionally, the Court must weigh the interest of the United States in providing a U.S. forum for its citizens with the interest of the Bahamas in adjudicating a dispute that occurred in its territory. See SME Racks, 382 F.3d at 1104.

While the Court begins with the proposition that Plaintiffs (both U.S. citizens) should not be ousted from a U.S. forum, the Court finds that the public interest factors also weigh heavily in favor of trial in the Bahamas. First, in SME Racks, the court made clear that the “United States has a strong interest in providing a forum for its citizens’ grievances against an allegedly predatory foreign business that actively solicited business and caused harm within the home forum.” 382 F.3d at 1104 (emphasis added). In SME Racks, a U.S. plaintiff brought an action against a Spanish company for breach [*34] of contract and various torts in Florida. Id. at 1099. The contract was negotiated and executed in Spain, but the alleged breach and torts allegedly occurred in Florida as the plaintiff claimed it received a shipment of defective goods in Florida. Id. This case is distinguishable from SME Racks, because the “harm” did not occur in Florida (or even in the U.S.). Instead, Plaintiffs are suing (with one exception) Bahamian companies and individuals for conduct which occurred entirely within the Bahamas. Unlike SME Racks, the presumption in favor of Plaintiffs’ choice of forum here is not as strong because of the attenuated connection of this forum with the events giving rise to the claims. See, e.g., J.C. Renfroe & Sons, Inc. v. Renfroe Japan Co., Ltd., 515 F. Supp. 2d 1258, 1274 (M.D. Fla. 2007); see also Iragorri v. United Technologies Corp., 274 F.3d 65, 73 (2d Cir. 2001) (en banc) (holding that a U.S. plaintiff’s choice of forum is not automatically granted greater deference unless the choice was motivated by “legitimate reasons”).

The parties have not addressed any administrative difficulties with pursuing this case in the Bahamas, other than the fact that contingency fee agreements [*35] for Plaintiffs’ counsel are not permitted in the Bahamas. 7 This factor, as the Court has already explained, receives no consideration. The Court also agrees with Plaintiffs that a view of the site of Mrs. Son’s accident is meaningless because the “shifting sands are no longer as they were at the time of the accident.” (Pl. Resp. 14.) The remaining factors, nonetheless, weigh heavily for the Kerzner Defendants.

7 The Court notes the logic of Chierchia v. Treasure Cay Services, 738 F. Supp. 1386 (S.D. Fla. 1990), where Judge King held that “a forum in which the personal injury action arose would present a better administrative choice than one which experiences one of the busiest criminal dockets in the U.S.” Id. at 1389.

A jury composed of residents of Palm Beach County, Florida, has a minimal (if any) interest in adjudicating a dispute between citizens of Maryland and (with one exception) citizens of the Bahamas for acts that occurred in the Bahamas. As explained in Gulf Oil, the people of Florida have no relation to this case, and thus they should not bear the burden of serving on a jury to settle a dispute between Maryland residents and Bahamian corporations for activities in Bahamian [*36] territory. In contrast, the Bahamas has an interest in settling a dispute between its citizens and foreigners for activity that happened within its sovereign territory. The Commonwealth of the Bahamas has the strongest interest in protecting tourists and visitors from the conduct of its own citizens. See, e.g., Calvo v. Sol Melia, S.A., 761 So. 2d 461, 464 (Fla. Dist. Ct. App. 2000). While the State of Florida has an interest in protecting its citizens, Plaintiffs (as well as countless other visitors to the Atlantis resort) are not citizens of Florida and they have not presented a persuasive argument for needing the protection of Florida’s laws. 8

8 An argument could be made that the United States has an interest in protecting its citizens from harm abroad. Nevertheless, the Court feels that the interests of the Bahamas are stronger, because the events giving rise to the cause of action occurred in the Bahamas and because Defendants are Bahamian nationals. Further, Plaintiffs traveled to the Bahamas on their own volition and only after the fact seek the protection of U.S. courts.

Plus, Bahamian law will most likely govern this dispute. 9 While this Court is capable of applying Bahamian [*37] law, and the Bahamas is a common law country much like our own, the Court would be forced to rely on expert testimony and evidence provided by the parties as to the substance of Bahamian law, which would add substantially to the administrative burden of having trial in this forum. “The public interest factors point towards dismissal where the court would be required to ‘untangle problems in conflict of laws, and in law foreign to itself.'” Piper Aircraft, 454 U.S. at 251 (quoting Gulf Oil, 330 U.S. at 509).

9 In Florida, courts apply the “significant relationship test” to determine the substantive law applied to personal injury actions. Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980). While not dispositive, the law of the state where both the injury and the conduct causing the injury occurred is, in most instances, the law to be applied. Id. Since Mrs. Son’s accident occurred in the Bahamas, the Court finds it likely that Bahamian law will apply, at least in part, to this dispute. Notably, none of the other factors Florida courts consider (residence, nationality or place of incorporation of the parties and the place where the relationship between the parties is [*38] centered) indicate that Florida law should apply. Again, these factors would suggest either Bahamian law or Maryland law should be applied.

Accordingly, the Court finds that the public interest factors also weigh in favor of dismissal of this action.

Reinstatement of Suit

The Court must ultimately determine whether Plaintiffs can reinstate their lawsuit in the alternative forum without undue prejudice or inconvenience. See Leon, 251 F.3d at 1310-11. As the Court has already explained, the inconvenience of traveling from Maryland to West Palm Beach, Florida, is no greater than the inconvenience of traveling from Maryland to Nassau, Bahamas. The distance between these locations is practically the same. In addition, Plaintiffs will not be prejudiced by dismissal, as Defendants are all subject to the jurisdiction of Bahamian courts. (Def. Mot. 19.) The statute of limitations will expire in August 2008, but Defendants have agreed to waive any statute of limitations defenses they might have under Bahamian law. (Id. at 19 n.12.) The Court, therefore, dismisses this action subject to these representations.

Conclusion

It is hereby ORDERED AND ADJUDGED that the Kerzner Defendants’ Motion to Dismiss [*39] (DE 15) is GRANTED IN PART as follows:

1. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is DENIED. (See DE 31.)

2. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(3) is GRANTED.

3. The Motion to Dismiss on the basis of the doctrine of forum non conveniens is GRANTED.

4. The Kerzner Defendants are deemed to have waived any statute of limitations and personal jurisdiction defenses they might otherwise raise in the Supreme Court of the Bahamas.

5. This case is DISMISSED WITHOUT PREJUDICE for Plaintiff to refile in the Supreme Court of the Bahamas.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 5th day of September, 2008.

/s/ Kenneth A. Marra

KENNETH A. MARRA

United States District Judge

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