Opinion
CASE NO. 03-23087-CIV-JORDAN.
March 30, 2005
ORDER
On November 24, 2003, Kendall D. Ward, a United States citizen and Georgia resident, filed this diversity action alleging that the negligence of Kerzner International Hotels, Ltd. and Kerzner International Bahamas, Ltd. (the "Kerzner defendants" or "the defendants") caused him serious injuries. See Complaint [D.E. 1]. Mr. Ward alleges that on the evening of November 11, 2001, he was a guest at the Ocean Club on Paradise Island, Bahamas. See id. at ¶ 3. The same evening, Mr. Ward used one of the bicycles provided by the Ocean Club's sports facility, but the bicycle did not have lights and he was not given a helmet. See id. Upon his return to the Ocean Club after dark, he hit some unpainted speed bumps in the unlighted driveway, was thrown over the handlebars, and was seriously injured. See id. Mr. Ward alleges that the Kerzner defendants, personally, or through their subsidiaries, own, operate, and manage the Ocean Club. See id. at ¶¶ 16, 22. Mr. Ward further alleges that the defendants are Bahamian corporations, doing continuous and systematic business through their offices in the Southern District of Florida. See id. at ¶¶ 5, 10. The defendants have filed a motion to dismiss the complaint [D.E. 9] for forum non conveniens and improper venue. For the reasons stated below, the defendants' motion to dismiss [D.E. 9] is DENIED.
The federal doctrine of forum non conveniens (as opposed to convenience transfer under 28 U.S.C. § 1404(a)) applies where, as here, the alleged alternative forum is abroad. See American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2 (1994).
The defendants' argument for improper venue is based on an alleged forum selection clause, designating the Bahamas as the proper venue.
I. STANDARD
The doctrine of forum non conveniens permits a court to decline to exercise jurisdiction when it appears that the convenience of the parties and the interests of justice weigh in favor of trying the action in an alternative forum. See generally Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). In deciding whether to dismiss a case on forum non conveniens grounds, courts must examine (1) the availability of an alternative and adequate forum; (2) the appropriate deference to be given to the plaintiff's choice of forum; (3) the private interest factors; and (4) the public interest factors. See id. at 257. A court must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing the plaintiff's initial forum choice. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). If the court finds this balance of private interests to be in equipoise or near equipoise, it must then determine whether or not factors of public interest tip the balance in favor of a trial in a foreign forum. Id. Although "private factors are generally considered more important" than public ones, courts should consider both public and private factors "in all cases." See Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). The defendant must present "positive evidence of unusually extreme circumstances and thoroughly convince [this court] that material injustice is manifest before ousting a domestic plaintiff from this country's courts." SME Racks, Inc. v. Sistemas Macanicos Para Electronica, S.A., 382 F.3d 1097, 1101-1102 (11th Cir. 2004).
Motions to dismiss based on choice-of-forum clauses are properly brought pursuant to Rule 12(b)(3) as motions to dismiss for improper venue. See Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290 (11th Cir. 1998). For defenses raised under Rule 12(b)(3), courts may consider matters outside the pleadings, and often must do so, since without the aid of such outside materials, the court would be unable to discern the actual basis, in fact, of a party's challenge to the bare allegation in the complaint that venue is proper in that court. See, e.g., Webster v. Royal Caribbean Cruises, Ltd., 124 F. Supp. 2d 1317, 1320 (S.D. Fla. 2000) (citing Transmirra Prods. Corp. v. Fourco Glass Co., 246 F.2d 538, 538-39 (2nd Cir. 1957) (resolving motion to dismiss because of improper venue "in the usual manner on affidavits, here supplemented by answers to interrogatories, and a deposition from one of the defendant's employees in the district, rather than by a full trial")).
II. ANALYSIS A. FORUM NON CONVENIENS 1. AVAILABLE AND ADEQUATE ALTERNATIVE FORUM
Generally, a defendant satisfies the availability requirement by showing that it is "amenable to process in the other jurisdiction." See Piper Aircraft, 454 U.S. at 254 n. 22. In this case, the Kerzner defendants are Bahamian corporations and are subject to jurisdiction in the Bahamas. See Compl. at 1; Def. Repl. [D.E. 27] at 4-5; Giselle Pyfrom Aff. at ¶ 9. Indeed, Mr. Ward declines to quibble with the Kerzner defendants' assertion that they are amendable to process in the Bahamas and that the Bahamas is an available forum. See Pl. Resp. [D.E. 24] at 15. Moreover, the Eleventh Circuit has noted that courts are "reluctant to hold an alternative forum inadequate." See Leon, 251 F.3d at 1312. An alternative forum is presumptively impartial and efficient, and the burden of production is generally on the plaintiff to show that this is not so. See id. In the absence of any such a showing by Mr. Ward, I find that the Bahamas is both an available and adequate alternative forum.
2. DEFERENCE
Even if the alternative forum is available and adequate, a plaintiff's choice of forum "should rarely be disturbed" unless the balance is strongly in favor of the defendant. See Piper Aircraft, 454 U.S. at 257; SME Racks, 382 F.3d at 1101. The Eleventh Circuit has held that a domestic plaintiff's choice of forum is entitled to a strong presumption that the forum is convenient and the court is to give a high level of deference to that choice. See Leon, 251 F.3d at 1311. Mr. Ward is a citizen of the United States and thus deserving of the strong deference normally given to a domestic plaintiff.
The defendants argue that I should afford less deference to Mr. Ward's choice of forum because he filed this case in Florida, rather than in his home state of Georgia. See Def. Repl. at 2. It appears, however, that there is no other domestic jurisdiction than Florida where venue would be proper. See Pl. Resp. at 14. See also 28 U.S.C. § 1391(a) ("A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provide by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state . . ."); § 1391(c) ("a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced . . ."). Seeing no evidence of forum shopping by Mr. Ward, I conclude that Mr. Ward's choice is entitled to full deference under SME Racks because it appears he filed his case in Florida in accordance with federal law and for the convenience of the defendants, who apparently do not maintain operations in Georgia. Moreover, if the defendants think Georgia is more convenient that Florida, they can move to transfer.
3. PRIVATE INTEREST FACTORS
In weighing the private interests, a court should look to several factors, including the "relative ease of access to sources of proof; ability to obtain witnesses; possibility of view of the premises; and `all other practical problems that make trial of a case easy, expeditious, and inexpensive.'" La Seguridad, 707 F.2d at 1307 (citation omitted). The Eleventh Circuit has mandated that, in weighing the private interests, a court must also incorporate into its calculus the "presumption" in favor of and "substantial deference" given to the plaintiff's chosen forum. See SME Racks, 382 F.3d at 1102, 1103. As explained below, I conclude that — when viewed in light of this presumption — the private interest factors do not strongly favor dismissal.Mr. Ward states that one eyewitness to the accident is a resident of Orlando, Florida. See Pl. Resp. at 15. He also states that the Bahamian treatment reports, photographs of his injuries, and photographs of the scene are in his possession in Florida. See id. He also points out that transfer to the Bahamas will not facilitate the defendants' access to his employment records and his medical records from Georgia treating physicians. See id. The Kerzner defendants also have affiliates and conduct business in Florida. See Compl. at ¶¶ 5-15; Def. Repl. at 6.
On the other hand, the defendants have identified several potential witnesses located in the Bahamas, including: (a) Allardyce Smith, a security officer who investigated the alleged accident and prepared an incident report; (b) Wanlee Russell, a security officer who witnessed the alleged accident and prepared a report; (c) Nurse Cara Ferguson, who examined Mr. Ward immediately after the alleged accident; (d) Mr. Sweeting, who investigated the alleged accident and prepared a shift manager's report; (e) Russell Miller, the General Manager and Vice President of the Ocean Club, who attended to and spoke with Mr. Ward following the alleged accident and arranged for transportation to take him to the hospital; (f) Dr. Nigel Johnson and Dr. Gregory Neil, two physicians at Doctor's Hospital in Nassau who initially treated Mr. Ward shortly after the alleged accident; and (g) Leslie Crawly, head engineer at the Ocean Club who is responsible for the area in question. See Def. Repl. at 5-6; Liebman Decl. at 1-3, Ex. A attached to Def. Repl. The defendants also point out that Mr. Ward's accident file containing security reports and incident reports, the medical records from the Bahamian hospital, and all of the Ocean Club's records regarding the maintenance and condition of the area in question, are located in the Bahamas. See Def. Repl. at 7. The defendants also state that viewing the accident site can only be accomplished in the Bahamas. See id.
While the number of private interest factors may appear to weigh more heavily in favor of the Bahamas, those factors are insufficient to "thoroughly convince [me] that material injustice is manifest" so as to oust Mr. Ward from this country's courts. See SME Racks, 382 F.3d at 1102; La Seguiridad, 707 F.2d at 1308, n. 7. The defendants have identified only one eyewitness to the accident residing in the Bahamas, security officer Wanlee Russell. See Giselle Pyfrom Aff. [D.E. 16] at ¶ 7. In addition, the majority of witnesses who reside in the Bahamas are the defendants' own agents and employees, who are under defendants' control and will appear voluntarily. See Def. Repl. at 5-6. The defendants have not established that it would be "unusually" inconvenient or costly to transport these witnesses. See SME Racks, 382 F.3d at 1103. Indeed, as noted in Sun Trust Bank v. Sun Int'l Hotels, Ltd., 184 F. Supp. 2d 1246, 1263-1265 (S.D. Fla. 2001), such a contention would be difficult to sustain in light of Paradise Island's proximity to South Florida, and the ease and frequency of travel between the two locations. See also Walker v. Paradise Grand Hotel, Ltd., Case No. 01-3564-CIV-GOLD, Order Denying Defendant's Motion to Dismiss on the Doctrine of Forum Non Conveniens, dated November 5, 2002, at 6-7.
I recognize that in Morse v. Sun International Hotels, Ltd., et al., Case No. 98-7451-CIV-JORDAN (S.D. Fla. Feb. 26, 2001), aff'd without opinion, 277 F.3d 1379 (11th Cir. 2001) — a case involving the same defendants and the Bahamas as an alternate forum — I granted the defendant's motion to dismiss for forum non conveniens. See Ex. A, attached to Def. Mot. to Dismiss. Since Morse was decided, however, the Eleventh Circuit has made it clear that the defendant must set forth "positive evidence of unusually extreme circumstances" to overcome the strong presumption in favor of a domestic plaintiff's chosen forum. See SME Racks, 382 F.3d at 1103. Even if I were to somehow distinguish the Eleventh Circuit's unequivocal mandate, a key difference between Morse and the present case is the ability to implead necessary third parties. In Morse, the defendants would not have been able to implead certain Bahamian non-parties had the case been tried in Florida. Here, however, there has been no allegation that any non-parties need to be impleaded. Even assuming that there are third parties that need to be joined — as was briefly argued in footnote 6 of the defendants' reply — the defendants have not established that it would be unduly burdensome to pursue a separate indemnification action against any such third parties in the Bahamas. See Sun Trust Bank v. Sun Int'l Hotels, Ltd., 184 F. Supp. 2d 1246, 1263-1265 (S.D. Fla. 2001).
Beyond those witnesses under their control, the defendants note that two Bahamian doctors treated Mr. Ward in the Bahamas immediately after the incident. See Def. Repl. at 6, n. 6. I find, however, that the defendants have failed to carry their burden of establishing that the doctors must give live testimony, or that the necessary evidence could not be procured through videotaped depositions, letters rogatory, or some similar procedure. See Sun Trust Bank, 184 F. Supp. 2d at 1263-1265 (citing Reid-Walen v. Hansen, 933 F.2d 1390, 1396 (8th Cir. 1991) (defendant's burden to establish importance of testimony and accessability in the forum); Mediterranean Gulf, Inc. v. Hirsch, 783 F.Supp. 835, 845-46 (D.N.J. 1991) (importance of witnesses' testimony is properly considered as private interest factor)). See also Fed.R.Civ.P. 28(b) (depositions in foreign countries).
Mr. Ward, moreover, states that he is already in possession of the documents generated in connection with the accident. See Pl. Resp. at 15. While the defendants argue that "all of the records concerning the condition of the area where the accident occurred and its design and maintenance are located in the Bahamas," see Def. Mot. to Dismiss at 6, the defendants have failed to identify any documentary or physical evidence that could not be obtained if the trial were conducted here. See also Sun Trust Bank, 184 F. Supp. 2d at 1263 (citing Reid-Walen, 933 F.2d at 1397-98; Doe v. Sun International Hotels, Ltd., 20 F. Supp. 2d 1328, 1330 (S.D. Fla. 1998)).
The defendants also argue that viewing the driveway at Ocean Club is important. See Def. Repl. at 7. While the ability to view the premises is a relevant consideration, the defendants have neither alleged nor established that there is anything unusual about the physical layout of the site that cannot be adequately and accurately depicted in photographs, diagrams, and videotapes. See Sun Trust Bank, 184 F. Supp. 2d at 1264. Considering the strong presumption in favor of Mr. Ward's choice of forum, this factor does not favor dismissal.
For the foregoing reasons, and in light of the Eleventh Circuit's recent opinion in SME Racks, the defendants' concerns regarding the ease of access to sources of proof, the availability of compulsory process for attendance of unwilling witnesses and associated costs, and the ability to view the premises are insufficient, either alone or in combination, to override the strong presumption in favor of Mr. Ward's choice of forum in this case.
I further note that this case is different from those such as Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1284 (11th Cir. 2001), where only one of the five plaintiffs was American, the other four were Argentinean, and the airplane crash took place in Argentina. Id. If that were the situation in this case, the balancing of private and public interests might lead to a different result. Here, however, there is only one plaintiff, who is American. Thus, in light of SME Racks, Mr. Ward's choice of forum must be given strong deference.
4. PUBLIC INTEREST FACTORS
The public interest factors include: (a) court congestion and jury duty generated by controversies having no relation to the forum; (b) the desirability of having localized controversies decided at home; and (c) the difficulties attendant resolving conflict-of-laws problems and applying foreign law. See La Seguridad, 707 F.2d at 1307. This list is not intended to be exhaustive, but merely to suggest the range of relevant considerations. See id. "There is a strong federal interest in making sure that plaintiffs who are United States citizens generally get to choose an American forum for bringing suit, rather than having their case relegated to a foreign jurisdiction." SME Racks, 382 F.3d at 1104. Moreover, while the application of foreign law is an important factor to be considered in weighing the public interests, this factor cannot be accorded dispositive weight. See id.Undeniably, the Bahamas has a stake in the just and efficient resolution of lawsuits involving accidents occurring there, and against defendants which are incorporated there. See SME Racks, 382 F.3d at 1104 (citing several cases involving foreign plaintiffs where dismissal was predicated upon the fact that the incident occurred on foreign soil). I conclude, however, that the Bahamas' interest is somewhat lessened where the sole plaintiff is an American citizen. In Sun Trust Bank, for example, the court held that the United States has an interest in providing its own citizens with a forum to seek redress for injuries caused by foreign defendants. See Sun Trust Bank, 184 F. Supp. 2d at 1266. See also SME Racks, 382 F.3d at 1104 (citing Burt v. Isthmus Dev. Co., 218 F.2d 353, 352 (5th Cir. 1953) ("This nation has historically been most solicitous of its citizens' welfare and its courts exist as much for the adjudication of its citizens' controversies as for the enforcement of its laws.")). In addition to the United States' interest in providing a forum for Mr. Ward, the United States also has an interest in litigation involving the Kerzner defendants because they have conducted business in the United States through their South Florida offices. See SME Racks, 382 F.3d at 1104 ("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 . . . within the home forum.").
Furthermore, even if the law of the Bahamas is controlling in this case — as it appears to be (at least initially) — the defendants have not established any "conflict" or "difficulty" associated with this court applying Bahamian law. Indeed, federal courts are often required to decide issues of foreign law. See SME Racks, 382 F.3d at 1105, n. 11 (citing Burt, 218 F.2d at 357 ("the fact that success or failure depends upon the law of Mexico does not, of itself, justify dismissal.")); Sun Trust Bank, 184 F. Supp. 2d at 1266 (citing Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 345 (8th Cir. 1983)). Moreover, there are no language barriers to the court's understanding of Bahamian law, and Bahamian law is derived from English common law and is similar to Florida law. See Reginald Lobosky Aff., Ex. 22 attached to Pl. Resp. (stating that the Bahamian law on negligence and premises liability is essentially the same as that of the State of Florida); Sun Trust Bank, 184 F. Supp. 2d at 1266 (citing Reid-Walen, 933 F.2d at 1401, for its holding that Jamaican law is descended from British law, contains concepts similar to our own, and presents no language barrier).
Upon weighing the relevant considerations, and given the United States' strong interests in providing a forum for Mr. Ward, I am not thoroughly convinced that either the private or public interest factors weigh in favor of dismissal.
B. FORUM SELECTION CLAUSE
Alternatively, the defendants argue that Mr. Ward's complaint should be dismissed for improper venue based on a forum selection clause contained in the guest registration agreement. See Def. Mot. to Dismiss at 8; Ex. A, attached to Giselle Pyfrom Aff. [D.E. 16]. In response, Mr. Ward points out that there are actually two forum selection clauses on the one-page registration agreement, and he argues that the operative clause is not enforceable because it is unsigned. See Pl. Resp. at 8.
To be sure, the first clause is entitled "Settlement Method." See Ex. A, attached to Pyfrom Aff. It pertains to "any claim . . . against [the defendants] . . . resulting from any events occurring in the Bahamas," and designates "the Supreme Court of the Bahamas as the exclusive venue for any such proceedings." See id. Significantly, however, that clause is not signed. See id. The second clause is entitled "Acknowledgment, Agreement and Release — Read Before Signing." See id. It pertains to "any motorized watersport activities," and also designates that "any legal action relating to or arising out of this agreement shall be commenced exclusively in the Supreme Court of the Bahamas." See id. (emphasis added). Mr. Ward did sign the second clause. See id. Mr. Ward essentially argues that, because his accident did not involve watersport activities, only the first clause — which is unsigned — applies in this case. See Pl. Resp. at 8. Thus, he argues, the applicable forum selection clause is invalid. See id.
The defendants have cited several cases where forum selection clauses were held to be valid and enforceable. See Def. Mot. to Dismiss at 8-11. None of those cases, however, involve enforcement of an additional forum selection clause which required a separate signature, but was not signed. See Breman v. Zapata Offshore Co., 407 U.S. 1, 14, n. 14 (1972) (signed forum selection clause was valid); Lipcon, 148 F.3d 1285 (signed forum selection clause was valid); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (forum selection clauses on pre-printed cruise tickets were valid, but case gives no indication that the cruise tickets provided opportunity to sign); Giordano v. Sun Int'l North America, Inc., Case No. 98-7456-CIV-DIMITROULEAS (S.D. Fla. filed Sept. 30, 1999) ("Plaintiff is bound by choice-of-forum agreements that he signed . . ."); Sun Trust Bank, 184 F. Supp.2d at 1259-60 (signed forum selection clause unenforceable because timing of notice was "fundamentally unfair"); Corna v. American Hawaii Cruise, Inc., 794 F.Supp. 1005, 1011 (D. Hawaii 1992) (forum selection clauses on pre-printed cruise tickets were unenforceable because timing of notice was unfair); Hicks v. Carnival Cruise Lines, Inc., 1994 WL 388678 (E.D. Pa. 1994) (forum selection clause on pre-printed cruise ticket was enforceable because the terms were reasonably communicated to passenger, but case gives no indication that the cruise tickets provided the opportunity to sign); Harden v. American Airlines, 178 F.R.D. 583 (M.D. Ala. 1998) (forum selection clauses on tickets were valid, but case gives no indication that the tickets provided the opportunity to sign); Miller v. Regency Maritime Corp., 824 F.Supp. 200, 201-202 (N.D. Fla. 1992) (same); Shankles v. Caster Armatory, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983) (same). The defendants have provided no authority — from the Bahamas or elsewhere — requiring enforcement of an unsigned forum selection clause, like the one involved here.
In my view, the guest registration document is not ambiguous. It is apparent from the face of the document that each of the two forum selection clauses requires a signature. While the first forum selection clause pertains broadly to any claim against the defendants, the second clause pertains only to watersport activities. The defendants do not dispute that Mr. Ward's accident had nothing to do with watersports. Since Mr. Ward did not sign or clearly accept the terms of the forum selection clause pertaining to the type of accident involved in this case, I cannot conclude that dismissal is proper. Assuming the document is ambiguous, the defendants have not cited any Bahamian or Florida law to support their argument that Mr. Ward is bound by both forum selection clauses.
III. CONCLUSION
For the foregoing reasons, the Kerzner defendants' motion to dismiss for forum non conveniens and improper venue [D.E. 9] is DENIED. The defendants' answer to the complaint is due by no later than April 22, 2005. The parties shall file a joint scheduling report by no later than April 29, 2005.
DONE and ORDERED.