Rei v. Experience Outdoors LLC et al

Filing 12

MEMORANDUM-DECISION & ORDER: It is ORDERED that Plaintiff's complaint is DISMISSED without prejudice. The Clerk is directed to terminate the pending motion, enter a judgment accordingly, and close the file. IT IS SO ORDERED. Signed by U.S. District Judge David N. Hurd on 09/19/2022. (map)

Case 8:22-cv-00193-DNH-CFH Document 12 Filed 09/19/22 Page 1 of 9

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------CHANCELLOR REI,
Plaintiff,
-v-

8:22-CV-193

EXPERIENCE OUTDOORS
LLC and OAK ROOM
ASSOCIATES LLC,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

MORGAN & MORGAN NY PLLC
Attorneys for Plaintiff
350 Fifth Avenue, Suite 6705
New York, NY 10118

GAMALIEL B. DELGADO, ESQ.

TADDEO, SHAHAN LAW FIRM
Attorneys for Defendants
120 East Washington Street, Suite 400
Syracuse, NY 13202

STEVEN C. SHAHAN, ESQ.

DAVID N. HURD
United States District Judge

Case 8:22-cv-00193-DNH-CFH Document 12 Filed 09/19/22 Page 2 of 9

MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
On March 3, 2022, plaintiff Chancellor Rei (“Rei” or “plaintiff”) filed this
negligence action against defendants Experience Outdoors, LLC
(“Experience”) and Oak Room Associates, LLC (“Oak Room”) (collectively
“defendants”). Plaintiff’s two-count complaint alleges that he suffered a
serious leg injury at “Adventure Park” in Lake Placid, New York.
On August 5, 2022, defendants moved under 28 U.S.C. § 1404(a) to
transfer this action to Supreme Court, Essex County. Dkt. No. 11. Although
the deadline in which to do so expired on August 26, 2022, plaintiff failed to
oppose or respond. See id. The motion will be considered on the basis of the
available submissions without oral argument.
II. BACKGROUND
Oak Room and Experience are two domestic corporations headquartered
in Lake Placid, New York. Compl. ¶¶ 2–3. Together, they own and operate
“Adventure Park.” Id. ¶ 6. The Park provides “outdoor experiences” that
include "[z]iplining, [h]iking, [o]bstacle [c]ourses, and other similar activities”
that are “designed to give you the Adirondack experience of your
dreams.” Id. ¶¶ 6–7.
Rei is a resident of Massachusetts. Compl. ¶ 1. Plaintiff and his family
planned a visit to defendants’ Adventure Park. On August 5, 2021, plaintiff
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completed and electronically signed an online registration form for the Park
that included an assumption-of-risk document (the “Release”). The Release
included a choice-of-forum clause under the “Assumption of Risk and
Dangers” heading, which states in relevant part that:
This agreement shall be governed by the laws of the
State of new York, and any legal action relating to or
arising out of this Participant Agreement, Waiver &
Release Form shall be commenced exclusively in the
Supreme Court of the State of New York in and for the
County of Essex[.]
Ex. A to Walton Aff., Dkt. No. 11-7.
On August 9, 2021, Rei and his family visited the Park. Compl. ¶ 9. At
about 11:30 a.m., plaintiff paid to ride the “Big Blue Zipline.” Id. Park
employees provided plaintiff with a helmet and harness, and “instructed him
in the manner in which to ride the Zipline.” Id. Plaintiff followed their
instructions and wore the required safety gear. Id. ¶¶ 9–10.
Even so, Rei’s right leg was severely fractured when it struck the ziplining
platform. Compl. ¶ 10. Plaintiff’s family looked on in “shock and horror” as
their vacation came “to an abrupt, gruesome end.” Id. Plaintiff was
immediately transported to Adirondack Medical Center, where he received
emergency surgery. Id. ¶ 11. According to plaintiff, defendants’ negligence
led to the incident. Id. ¶¶ 12–14.

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III. DISCUSSION
Defendants seek to enforce the forum-selection clause found in the
Release, which expressly designates Supreme Court, Essex County as the
proper forum. Defs.’ Mem., Dkt. No. 11 at 3–8. 1 Plaintiff has not responded
or opposed this motion.
As an initial matter, defendants’ reliance on § 1404(a) to transfer this case
to Supreme Court, Essex County is misplaced. Section 1404(a) is a venue
transfer provision that, “by its very terms, speaks to federal courts.” Pope v.
Atl. Coast Line R. Co., 345 U.S. 379, 384 (1953). As the Supreme Court has
explained, “its limited purpose is to authorize, under certain circumstances,
the transfer of a civil action from one federal forum to another federal forum
in which the action ‘might have been brought.’” Pope, 345 U.S. at 384. In
other words, § 1404(a) does not empower a federal court to transfer venue of a
case initially filed in federal court to a state court. See Atl. Marine Const. Co.
v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 60 (2013).
Instead of § 1404(a), “the appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is through the doctrine of forum
non conveniens.” Atl. Marine Const. Co., 571 U.S. at 60; see also Gonzales v.

1 Pagination corresponds to CM/ECF.

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Agway Energy Servs., LLC, 2019 WL 910669, at *2 (N.D.N.Y. Feb. 25, 2019)
(D’Agostino J.) (concluding same).
Where, as here, a party has identified the wrong procedural mechanism
for enforcing a forum-selection clause, trial courts may sua sponte consider
the request as a motion to dismiss for forum non conveniens. See, e.g.,
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (discussing a trial court’s
inherent authority to dismiss on grounds of forum non conveniens); Jones v.
Ponant USA LLC, 2020 WL 3172778, at *1 (S.D.N.Y. June 15, 2020) (same).
A district court considering such a motion typically relies strictly on the
pleadings and affidavits, but may also order limited discovery if deemed
necessary. Longo v. FlightSafety Int’l, Inc., 1 F. Supp. 3d 63, 67 (E.D.N.Y.
2014). However, “because the plaintiff risks losing its chosen forum by
enforcement of the forum-selection clause, the plaintiff is entitled to have the
facts viewed in the light most favorable to it, and no dispute fact should be
resolved against that party” absent an evidentiary hearing. Id. (cleaned up).
“In order to prevail on a motion seeking enforcement of a forum-selection
clause, the movant must demonstrate: (1) the clause was reasonably
communicated to the party resisting enforcement; (2) the clause was
mandatory and not merely permissive; and (3) the claims and parties
involved in the suit are subject to the forum selection clause.” Longo, 1 F.

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Supp. 3d at 67 (quoting Altvater Gessler–J.A. Baczewski Int’l (USA) Inc. v.
Sobieski Destylarnia S.A., 572 F.3d 86, 89 (2d Cir. 2009)).
“If the movant satisfies these elements, the burden shifts to the party
opposing enforcement to (4) rebut the presumption of enforceability by
making a sufficiently strong showing that enforcement would be
unreasonable or unjust, or that the clause was invalid for such reasons as
fraud or overreaching.” Longo, 1 F. Supp. 3d at 67–68 (quoting Phillips v.
Audio Active, Ltd., 494 F.3d 378, 383–84 (2d Cir.2007)).
1. Reasonably Communicated
Defendants reasonably communicated the forum-selection clause to Rei in
advance of his visit to the Park. The Release clearly and unambiguously
states that the Supreme Court of the State of New York, Essex County shall
have “exclusive jurisdiction” over any claim arising out of plaintiff’s visit to
the Park. Plaintiff electronically signed the Release just four days before
visiting the Adventure Park with his family. Notably, the Release also
cautions that, by signing the agreement, the reader is deemed to have read
and understood its terms. In short, even viewed in the light most favorable
to plaintiff, this first requirement has been satisfied.
2. Mandatory
The forum-selection clause in the Release is also mandatory. The Release
states that any legal action “relating to or arising out of” the agreement “shall
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be in New York State Supreme court in and for the County of Essex” and
“shall be located in the state courts located in Essex County, New
York.” Courts within the Second Circuit have routinely held that
forum-selection clauses with similar language are mandatory and
exclusive. See, e.g., Magi XXI, Inc. v. Stato Della Citta Del Vaticano, 818 F.
Supp. 2d 597, 605 (E.D.N.Y. 2011) (“A forum selection clause is viewed as
mandatory when it confers exclusive jurisdiction on the designated forum or
incorporates obligatory venue language.”). Thus, even viewed in the light
most favorable to plaintiff, this second requirement has been satisfied.
3. Covers All Claims and Parties
The forum-selection clause also covers the claims and parties in this
litigation. Rei is covered under this agreement because he was the one who
signed it. And his claims; i.e., that his leg injury was caused by defendants’
negligence, are expressly addressed in the Release. The Release also
cautions that the activities at the Park can be hazardous and dangerous and
that the risks and dangers associated with use of the facilities included the
negligence of others. Accordingly, this third requirement has been satisfied.
4. Insufficiently Rebutted
“Where, as here, a court finds a forum-selection clause to have satisfied
the first three requirements, the clause is considered ‘presumptively
enforceable’” and the burden shifts to the non-movant to make ‘a sufficiently
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strong showing that enforcement would be unreasonable or unjust, or that
the clause was invalid for such reasons as fraud or overreaching.’” Gasland
Petroleum, Inc. v. Firestream Worldwide, Inc., 2015 WL 2074501, at *7
(N.D.N.Y. May 4, 2015) (quoting Magi XXI, Inc., 818 F. Supp. 2d at 610).
This is a “heavy burden” that may be carried by showing: (1) incorporation
of the forum-selection clause was the result of fraud or overreaching; (2) the
law to be applied in the selected forum is fundamentally unfair; (3)
enforcement of the clause would contravene a strong public policy of the
forum state; or (4) trial in the selected forum would be so difficult and
inconvenient that the plaintiff would effectively be deprived of its day in
court. Martinez v. Bloomberg LP, 740 F.3d 211, 228 (2d Cir. 2014).
Upon review of the above factors, defendants’ submissions, and
considering the unopposed nature of the motion, the presumption of
enforceability has not been adequately rebutted. Accordingly, the clause is
enforceable, and this case must be dismissed.
V. CONCLUSION
“Forum selection clauses play a crucial role in ensuring predictability in
contract formation.” Longo, 1 F.Supp.3d at 71 (citations omitted). Rei is
bound by the forum-selection clause clearly set forth in the Release he signed

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before visiting the Adventure Park. Accordingly, this action must be
dismissed. 2
Therefore, it is
ORDERED that
1. Plaintiff’s complaint is DISMISSED without prejudice.
The Clerk is directed to terminate the pending motion, enter a judgment
accordingly, and close the file.
IT IS SO ORDERED.

Dated: September 19, 2022
Utica, New York.

2 Plaintiff is free to re-file this action in the appropriate forum.

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