MARCIA G. COOKE, District Judge.
This case arises from injuries Plaintiff Cynthia St. Aubin suffered from an allegedly dangerous condition on the "lazy river" ride at the Atlantis Resort's ("Resort") Waterpark in Nassau, Bahamas. I have jurisdiction under 28 U.S.C. § 1332.
Pending is Defendants'
I have reviewed the Motion, the Response and Reply, the record, and the relevant legal authorities. For the following reasons, I deny Defendants' Motion.
On or about March 31, 2014, St. Aubin slipped on a transitory substance near the "lazy river" at the Waterpark. (ECF No. 5 ¶ 27). St. Aubin suffered injuries as a result of the fall, including a brain bleed that required surgical intervention. (Id. ¶ 28). St. Aubin alleges Defendants breached the duty of care owed to her as a guest of the Resort, and that the breach resulted in pain and suffering, mental anguish, emotional distress, permanent injury, loss of wages, incurred medical expenses, and loss of capacity for the enjoyment of life. (Id. ¶ 13).
St. Aubin visited the Waterpark with her friends, one of whom booked the excursion through a cruise line operator. (ECF No. 20-1 ¶ 4). Typically, at check-in, the Resort requires guests to sign an "Acknowledgement, Agreement and Release" ("Agreement") that includes a forum-selection clause designating the Bahamas as the venue for claims against the Resort or the various corporate entities associated or affiliated with the Resort. (ECF No. 5 ¶ 25). St. Aubin alleges: (1) that neither the cruise line operator nor the Defendants informed her about the forum-selection clause; and (2) that she did not personally sign or assent to the forum-selection clause. (ECF No. 5 ¶ 26).
Under the doctrine of forum non conveniens, a court has discretion to dismiss a case over which it otherwise has jurisdiction in the interest of convenience, fairness, and judicial economy. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007). To obtain dismissal for forum non conveniens, "[t]he moving party must demonstrate that (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice." Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir.2001).
In Atlantic Marine Constr. Co. v. United States District Court for the Western District of Texas, 134 S.Ct. 568 (2013), the Supreme Court explained that an enforceable forum-selection clause carries near-determinative weight in the forum non conveniens analysis:
Id. at 582.
Thus, when there is a valid forum-selection clause in a contract, the burden is on the plaintiff to show that dismissal of the complaint is unwarranted. See id. at 581-83. I therefore address whether there was a forum-selection clause that bound St. Aubin before I engage in the forum non conveniens analysis.
St. Aubin argues that the Agreement's forum-selection clause is not enforceable against her. I agree.
Courts determine the enforceability of a forum-selection clause on a case-by-case basis. Horberg v. Kerzner Int'l Hotels Ltd., 744 F.Supp.2d 1284, 1289 (S.D. Fla. 2007). "Mandatory forum-selection clauses are presumptively valid and enforceable and warrant dismissal in favor of a contractually-mandated foreign forum unless the plaintiff makes a `strong showing' that enforcement would be unreasonable or unjust under the circumstances." Bell v. Kerzner Int'l Ltd., 2011 WL 12656691, at *2 (S.D. Fla. 2011). A forum-selection clause is "unreasonable" when: (1) the formation of the clause was induced by fraud or overreaching; (2) the plaintiff would be deprived of his or her day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the provisions would contravene public policy. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594-95 (1991); Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290 (11th Cir. 1998).
I need not engage in a reasonableness analysis here because, accepting St. Aubin's allegations as true:
Simply put, Defendants have provided no authority — from the Bahamas or anywhere else — requiring enforcement of an unsigned forum selection clause under the circumstances of this case. I therefore find that the forum-selection clause is unenforceable against St. Aubin. Having reached that conclusion, I next address Defendants' argument that I should dismiss St Aubin's claim under a traditional forum non conveniens analysis.
The doctrine of forum non conveniens permits a district court to exercise its discretion and dismiss an action if a foreign court is the more appropriate and convenient forum to adjudicate the matter. Sinochem Int'l Co., 549 U.S. at 429. The defendant "bears a heavy burden in opposing the plaintiff's chosen forum." Id. at 430. As noted above, a defendant seeking dismissal for forum non conveniens must demonstrate that: (1) an adequate alternative forum is available; (2) the public and private factors weigh in favor of dismissal; and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice. Leon, 251 F.3d. at 1310-11. I address each factor in turn.
The Eleventh Circuit has held that this factor involves two inquiries because "`[a]vailability and adequacy warrant separate consideration.'" Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011) (quoting Leon, 251 F.3d at 1311).
"[A]n alternative forum is `available' to the plaintiff when the foreign court can assert jurisdiction over the litigation sought to be transferred . . . [and] [the requirement of an available forum] will be satisfied when the defendant is `amenable to process' in the other jurisdiction.'" Id. Here, all three Defendants are Bahamian corporations and it is undisputed that they are amenable to process in the Bahamas. The Bahamas is therefore an "available" alternative forum.
As for the second inquiry, St. Aubin concedes that the Bahamas is an adequate forum. See ECF No. 20 at 8. The Bahamian legal system: (1) is similar to the English system; (2) allows access to evidence, witnesses, and relevant sites; (3) permits actions based on negligence and damages in personal injury cases; and (4) supports enforcement of judgments. See Morse v. Sun Int'l Hotels Ltd., 2001 WL 34874967, at *2 (S.D. Fla. 2001) (finding that the Bahamas is an adequate alternative forum for plaintiff suing for personal injuries sustained at the Atlantis). Indeed, this Court has consistently found the Bahamas to be an adequate forum for such litigation if the forum non conveniens factors weigh in favor of the moving party. See, e.g., Klyszcz v. Cloward H20 LLC, 2012 WL 4468345, at *3-4 (S.D. Fla. 2012); Horberg, 744 F. Supp. 2d at 1291.
Accordingly, I find that the Bahamas provides St. Aubin an "available and adequate" alternative forum in which to assert her claim. See Sun Trust Bank v. Sun Int'l Hotels, Ltd., 184 F.Supp.2d 1246, 1262-63 (S.D. Fla. 2001) (finding that the mere fact that the Bahamas "does not provide for contingent fee agreements, operates under different procedure, is less substantively generous, or lacks jury trials, does not render that forum inadequate."). I now turn to the private and public factors to determine whether I should dismiss the action.
This Court has identified several private factors to evaluate as part of the forum non conveniens analysis:
Klyszcz, 2012 WL 4468345, at *4 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1946)).
"These factors are not exhaustive, and the district court should be flexible in applying them." Matthews v. Whitewater West Indus. LTD., 2012 WL 1605184, at *5 (S.D. Fla. 2012). I address each factor in turn.
To evaluate ease of access to sources of proof, I consider "both the quantity and the quality of the evidence, which requires a consideration of how each piece of evidence relates to the legal claims and defenses at issue in the case." Matthews, 2012 WL 1605184, at *6 (citing Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003)). I also "identify the evidence necessary to adjudicate the claim or defenses to the claims." Bell, 2011 WL 12656691, at *6 (citing Sinochem Int'l Co., 549 U.S. at 432). Here, Defendants suggest that "[a]ll of the documents relevant to Plaintiff's allegations were created and are maintained in The Bahamas," and therefore there would be greater ease of access to evidence in that forum. Defendants do not, however, "argue that such documents could not be brought to Florida in the event that trial was conducted here." Miyoung Son v. Kerzner Int'l Resorts, Inc., 2008 WL 4186979, at *8 (S.D. Fla. 2008). Clearly they could. This consideration therefore does not weigh in either party's favor.
Regarding the quantity of witnesses, Defendants' witness list includes current employees and third-party witnesses who all reside in the Bahamas, including three lifeguards who assisted Plaintiff after the incident, two hotel managers on duty, unidentified Resort and Waterpark personnel, as well as a third-party contractor's medical staff. St. Aubin's witnesses all reside in the United States, including her, her treating physicians, and the five people with whom she traveled to the Resort, two of whom were present at the time of the incident. Thus, the material witnesses are split between both forums.
As for the quality of witnesses, Defendants' employees will be vital to determining whether Defendants breached a duty of care to St. Aubin. The employees will also be important witnesses regarding Plaintiff's conduct on the ride, the condition of the ride, and the operation of the ride. The third-party medical personnel will be relevant to calculating Plaintiff's damages, determining the extent of her injuries immediately after the accident, and assessing her state of mind or any statements she made immediately after the accident. St. Aubin's United States witnesses will be important to determining the circumstances leading to the accident, including the dangerous condition of the "lazy river," as well as any warnings of the ride's possible dangers. Her treating physicians in the United States will be relevant to the damages phase of the trial.
I must, however, also consider the cost of obtaining testimony from willing witnesses. Ford, 319 F.3d at 1308; see also Giglio Sub S.N.C v. Carnival Corp., 2012 WL 4477504 (S.D. Fla. 2012) (balancing the cost — in absolute terms — of bringing witnesses from Italy against sending witnesses from the United State to Italy). For Defendants' witnesses, located in the Bahamas, travel to Miami would be inconvenient. Most of St. Aubin's witnesses, on the other hand, would have to travel regardless of whether the trial is in Miami or in the Bahamas.
Next, I compare the availability of compulsory process in the United States and the Bahamas. See Klyszcz, 2012 WL 4468345, at *4. Defendants argue that this Court cannot compel testimony from certain witnesses located in the Bahamas. Defendants do not dispute that this Court can compel their employees to testify because they are within Defendants' control. Defendants are correct, however, that this Court cannot compel testimony from Defendants' former employees or third-party medical staff. See Bell, 2011 WL 12656691, at *9 (finding that the court lacked compulsory process over any unwilling witness located in the Bahamas). Thus, Defendants have identified several important third-party witnesses that this Court cannot compel to testify, but that a Bahamian court could compel to testify. See id. (Bahamian court has "subpoena power over unwilling witnesses located in the Bahamas") (citing Morse v. Sun Int'l Hotels Ltd., 2001 WL 34874967, at *3 (S.D. Fla. 2001)).
While this factor would generally weigh in favor of dismissal, I find that under the facts of this case, it does so only slightly. The majority of key witnesses who reside in the Bahamas are the Defendants' employees or agents. These are the witnesses whose testimony will be most relevant to St. Aubin's claim. Defendants "have not established that [it] would be `unusually' inconvenient or costly to transport these witnesses . . . and such a contention would be difficult to sustain in light of [the Resort's] proximity to South Florida, and the ease and frequency of travel between the two locations." Ward, 2005 WL 2456191, at *3. Defendants' also have not explained how their former employees' testimony would be material to the claims and defenses asserted in this case, see Van Hoy v. Sandals Resort Int'l Ltd., 2013 WL 1192316, at *8-9 (S.D. Fla. 2013), or how the testimony of third-party medical staff would be relevant to liability rather than damages. See supra note 6.
The next private interest factor I consider is the possibility of viewing the premises where the incident took place. The premises in this case, the "lazy river" portion of the Waterpark, is in the Bahamas. Defendants assert that a site visit is extremely important to the case. Defendants fail, however, to explain why simply photographing or videotaping the premises would not suffice. See Campbell v. Starwood Hotels & Resorts Worldwide, Inc., 2008 WL 2844020, at *6 (S.D. Fla. 2008) ("Because the accident scene can be adequately described and presented to the jury through photographs in this Court, just as it could be in a Bahamian court, this factor does not weigh in favor of the Bahamian forum"); see also Klyszcz, 2012 WL 4468345, at *5 (finding that merely because the accident occurred within the Bahamas does not mean that the premises cannot be observed through other means). This factor therefore does not favor dismissal.
The final private interest factor requires consideration of "all other practical problems that make the trial of a case easy, expeditious, and inexpensive." Klyszcz, 2012 WL 4468345, at *4. As to this factor, Defendants contend they may find it necessary upon further discovery to implead third-party witnesses from whom this Court cannot compel testimony. This Court has previously found this to be a compelling argument weighing in favor of dismissal. See Bell, 2011 WL 12656691, at *10; Miyoung Son, 2008 WL 4186979, at *9 (holding that "the inability to implead other parties directly involved in a controversy is a factor weighing heavily against the plaintiff's choice of forum").
When balancing the private interest factors, the Court must account for the "`strong presumption against disturbing . . . [a plaintiff's] initial forum choice.'" La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (citation omitted); see SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1102 (11th Cir. 2004) (presumption in favor of a plaintiff's choice of forum "is to be applied specifically when weighing the private interests.") (citation omitted). As a result, "[a] defendant invoking forum non conveniens `bears a heavy burden in opposing the plaintiff's chosen forum.'" Wilson v. Island Seas Invs.', Ltd., 590 F.3d 1264, 1269 (quoting Sinochem, 549 U.S. 422, 430 (2007)).
The presumption in favor of a plaintiff's choice of forum is particularly robust, and a defendant's burden is therefore substantially elevated, where the plaintiff is a United States citizen. See Wilson, 590 F.3d at 1269 (citing SME Racks, Inc., 382 F.3d at 1100-02). Indeed, the Eleventh Circuit has long mandated that district courts "require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen access to the courts of this country.'" SME Racks, 382 F.3d at 1101 (quotation omitted); see Norwood v. Kirkpatrick, 349 U.S. 29, 42 n.3 (1955) (describing the "near-conclusiveness" that a plaintiff's decision to bring a lawsuit in his home forum has in the forum non conveniens analysis).
Although many of the private factors discussed above suggest dismissal might be appropriate, I am not persuaded that Defendants have met their demanding burden. See Matthews, 2012 WL 1605184, at *10 ("Eleventh Circuit precedent is clear that, when weighing the private interest factors, the scales are not evenly calibrated — the robust presumption in favor of a U.S. citizen is to be applied when balancing the private interest factors." (citing SME Racks, 382 F.3d at 1102)). St. Aubin's United States citizenship and her choice to bring this action in the Southern District of Florida tip the balance in her favor.
Next, I consider whether the public interest factors weigh in favor of dismissal. See Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1270 (11
The first factor weighs in favor of dismissal. Because the Southern District of Florida is one of the busiest district courts in the country, see 2013 FY America's Most Productive Courts, (July 2, 2014) http://www.iand.uscourts.gov/e-web/notice.nsf/notices, this forum has a strong interest in adjudicating only those disputes to which it has substantial ties. Florida's connection to this lawsuit is tenuous at best. Plaintiff is a citizen and resident of Illinois, and only two witnesses reside in Florida. (ECF No. 5 ¶ 2; ECF No. 32 at 1). It would drain this forum's resources to indiscriminately adjudicate disputes under such circumstances.
As for the second factor, St. Aubin argues that because Defendants do extensive business in Florida, the United States has an interest in providing her, a United States citizen, with a forum to seek redress from them. Her point is a fair one, but I must balance it with the Bahamas' interest in settling a dispute between its citizens and foreigners for activity that happened within its sovereign territory. See Barilotti, 2014 WL 1803374 at *9. While the United States' interest is indeed important, see, e.g., Sun Trust Bank, 184 F. Supp. 2d at 1266, I find the Bahamas' interest to be equally strong under the circumstances. See, e.g., Horberg, 744 F. Supp. 2d at 1295-96 ("The Bahamas has a much stronger local interest in deciding this action" where "Defendants are Bahamian entities, and the alleged accident occurred off the waters of The Bahamas. The case involves a prominent Bahamian resort, and tourism is the largest industry in The Bahamas. The Bahamas has a vital interest in regulating the standards of conduct of the Bahamian Defendants."); Foster v. Sun Int'l Hotels, Ltd., 2002 WL 34576251, at *3 (S.D. Fla. 2002) ("The Bahamas has a very strong interest in this litigation. The tourism industry is vital to the Bahamas, and the Bahamas has an interest in regulating the conduct of the Bahamian Defendants and the duty under Bahamian law that they owe visitors to the Atlantis Resort — the largest resort on the island.").
With respect to the third factor, Defendants argue that under the "significant relationship" test, which Florida has adopted, see e.g., Nelson v. Freightliner, LLC, 154 F. App'x 98, 102 (11th Cir. 2005),
In light of the above, I find that the public interest factors weigh slightly in favor of dismissal.
In sum (1) there is no dispute that the Bahamas is an available and adequate forum for Plaintiff to bring her claims, (2) the private interest factors weigh slightly against dismissal, and (3) the public interest factors weigh slightly in favor of dismissal. It is well-settled, however, that "private factors are generally considered more important" than public ones. SME Racks, Inc., 382 F.3d at 1110; see also, e.g., Leon, 251 F.3d at 1311 (same). Applying that principle to this case, I find that dismissal on forum non conveniens grounds is inappropriate.
Accordingly, I DENY Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 13).
