Gibson et al v. Ecoquest, Inc. et al
Filing
67
OPINION and ORDER granting 20 Motion to Transfer. Pursuant to 28 U.S.C. sec. 1404(a), the Clerk is directed to transfer all claims against defendant Carnival Corporation to the U.S. District Court for the Southern District of Florida. All claims against the remaining defendants remain before this court (U.S. District Court for the District of Puerto Rico). Signed by US Magistrate Judge Bruce J. McGiverin on July 5, 2017. (McGiverin, Bruce)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JESSICA GIBSON, et al.,
Plaintiffs,
v.
Civil No. 16-2702 (BJM)
ECOQUEST, INC., ECOQUEST
ADVENTURES AND TOURS, et al.,
Defendants.
OPINION AND ORDER
Jessica Gibson, individually and as personal representative of the estate of Marsha
Boekeloo (deceased), Brandon Boekeloo, and Terry Boekeloo (collectively “plaintiffs”)
brought this suit against Ecoquest, Inc., EcoQuest Adventures and Tours (“Ecoquest”),
Hacienda Campo Rico, Inc. (“Campo Rico”), Primfe Insurance Company, Carnival
Corporation (“Carnival”), and the Insurance Company of the State of Pennsylvania
(collectively “defendants”). Docket No. 1 (“Compl.”). Plaintiffs allege negligent operation
of a zipline system by Ecoquest, negligent instruction of safety checks to the deceased by
Ecoquest and Campo Rico, strict liability in operating the inherently dangerous zipline
activity, and negligent misrepresentation and hiring by Carnival. Plaintiffs seek damages
for survivorship and wrongful death claims. Id. Carnival moved to dismiss, or transfer the
case, pursuant to a forum-selection clause. Docket Nos. 20, 30. Plaintiffs opposed, arguing
that the contract containing the forum-selection clause may not be considered at this stage,
and that the clause is unenforceable. Docket No. 25. This case is before me on consent of
the parties. Docket Nos. 48, 50.
For the reasons set forth below, Carnival’s motion to transfer is GRANTED.
APPLICABLE STANDARD
In Atlantic Marine Co., Inc. v. U.S. District Court, 134 S. Ct. 568, 580 (2013), “the
Supreme Court held that when parties have agreed to a valid forum-selection clause, that
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
2
clause should be given controlling weight in all but the most exceptional cases, and a
district court should ordinarily transfer the case to the forum specified in that clause.”
Caribbean Rests., LLC v. Burger King Corp., 23 F. Supp. 3d 70, 75 (D.P.R. 2014). 28
U.S.C. § 1404(a) provides that “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought or to any district or division to which all parties
have consented.” The Supreme Court has held that § “1404(a) is merely a codification of
the doctrine of forum non conveniens for the subset of cases in which the transferee forum
is within the federal court system; in such cases, Congress has replaced the traditional
remedy of outright dismissal with transfer.” Atlantic Marine, 134 S. Ct. at 580.
In the First Circuit, a motion to dismiss based on a forum-selection clause is treated
“as a motion alleging the failure to state a claim for which relief can be granted under Rule
12(b)(6).” Claudio-De Leon v. Sistema Universitario Ana G. Mendez, 775 F.3d 41, 46 (1st
Cir. 2014) (quoting Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.
2009)). Carnival filed such a motion here, but alternatively requested a transfer under §
1404(a). Although the Supreme Court “explicitly declined to express a view as to whether
a Rule 12(b)(6) motion is a proper alternative” to enforce a forum-selection clause, its
holding in Atlantic Marine is “emphatic that a motion to transfer under Section 1404(a)
was the appropriate mechanism” when the chosen forum is within the federal system.
Caribbean Rests, 23 F. Supp. 3d at 75. Accordingly, “the court will now treat . . .
[Carnival]’s motion as a motion to transfer under Section 1404(a) and analyze its request
under the standard set forth in Atlantic Marine.” Id.; see also Diaz Morales v. Royal
Caribbean Cruises, Ltd., 419 F. Supp. 2d 97, 101 (D.P.R. 2006) (defendant’s motion to
dismiss denied and case transferred to a district court in Florida, the appropriate venue).
BACKGROUND
The following facts are drawn from the allegations in the complaint, Carnival’s
motion to dismiss or transfer, and plaintiffs’ opposition to Carnival’s motion to dismiss, as
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
3
well as the ticket contract referenced in Carnival’s motion. Docket Nos. 1, 20, 25, 30. In
January 2015, plaintiffs and the deceased paid for a vacation cruise on the vessel Carnival
Breeze, a cruise ship owned, operated, and maintained by Carnival. Compl. ¶¶ 14–15. Later
in 2015, plaintiffs and the deceased reviewed shore excursions offered on Carnival’s
website, and paid for a shore excursion named “Hidden Paradise Zipline Adventure,”
which was advertised as a Carnival Shore Ex-Staff “Top Pick.” Id. ¶ 18.
In October 2015, plaintiffs and the deceased boarded the Carnival Breeze as farepaying passengers. Id. ¶ 20. When plaintiffs and the deceased went onboard, Carnival
provided them with tickets for the excursions purchased through Carnival, but did not
provide any brochures or other information about the excursion operator or its safety record
with zipline tours. Id. ¶ 21. Plaintiffs further allege that Ecoquest and Campo Rico had
been the subject of several claims of zipline accidents and injuries, and Carnival knew or
should have known of such claims. Id.
The Ticket Contract entered into between Carnival and plaintiffs (including the
deceased) contained a forum-selection clause, providing that the United States District
Court for the Southern District of Florida shall be the exclusive forum to litigate claims
against Carnival. Docket No. 20 at 3. Paragraph 13(c) of the Ticket Contract provides:
Except as provided in Clause 13 (d) below, it is agreed by and between the
Guest and Carnival that all disputes and matters whatsoever arising under,
in connection with or incident to this Contract or the Guest’s cruise,
including travel to and from the vessel, shall be litigated, if at all, before the
United States District Court for the Southern District of Florida in Miami,
or as to those lawsuits that lack subject matter jurisdiction, before a court
located in Miami-Dade County, Florida, U.S.A., to the exclusion of any
other county, state, or country.
Docket No. 20-1 at 11. Ecoquest alleges that “plaintiffs executed a release and waiver
which exonerates Ecoquest for the claims and/or damages asserted in the Complaint.”
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
4
Docket No. 23 at 10. According to plaintiffs, this release contains the following provision
in Paragraph 6:
In the event I file a lawsuit against [Ecoquest Adventures and Tours], I agree
to do so solely in the Island of Puerto Rico, and I further agree that the
substantive law of Puerto Rico shall apply in that action without regard to
the conflict of law rules of that Island. I agree that if any portion of this
agreement is found to be void or unenforceable, the remaining portions shall
remain in full force and effect.
Docket No. 25 at 6.
After plaintiffs and the deceased were transported to Hacienda Campo Rico for the
zipline adventure, the agents and employees of Ecoquest, Campo Rico, or both, gave
plaintiffs and the deceased instructions for using the harnesses and equipment for the
zipline adventure. Id. ¶¶ 22–23. Plaintiffs allege that the agents and employees of Ecoquest
and/or Campo Rico negligently operated the zipline system, negligently connected the
zipline harnesses for the deceased, and negligently supervised riders in using their zipline
system. Id. ¶ 24. As a result, at just a few feet from the starting point of the zipline, the
deceased’s harness disconnected from the harness of the zipline, and she fell approximately
25-40 feet, causing her death. Id. ¶ 25.
DISCUSSION
Carnival contends that the suit must be dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure per the broad, presumptively enforceable forum-selection
clause, or transferred pursuant to 28 U.S.C. § 1404(a). Carnival argues that although the
contract is outside the facts and evidence referenced in the complaint, the court may
consider the contract because it is central to plaintiffs’ tort claims. Docket No. 30 at 1–2.
Carnival further contends that plaintiffs and the deceased accepted the terms and condition
of the ticket contract, and the forum-selection clause is not a product of fraud or coercion.
Docket No. 20 at 3, 7. Carnival adds that plaintiffs have not met their “burden of showing
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
5
that public-interest factors overwhelmingly disfavor a transfer,” and that the interest of
justice favors enforcing the parties’ contractual choice of forum. Docket No. 20 at 9–10.
On separate grounds, Carnival contends that plaintiffs’ claim for negligent
misrepresentation and negligent hiring should be dismissed because plaintiffs failed to
plead the requisite elements with sufficient particularity, and improperly seek to impose
heightened duties of care upon Carnival. Docket No. 20 at 11–14.
I.
Forum-selection clause
Federal courts have long enforced forum-selection clauses because such clauses
“are prima facie valid and should be enforced unless enforcement is shown by the resisting
party to be ‘unreasonable’ under the circumstances.” Rivera, 575 F.3d at 18 (quoting M/S
Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10 (1972)). Under the Bremen analysis, “the
burden of proof is on the party opposing the enforcement of the forum selection clause.”
Carter’s of New Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 292 (1st Cir. 2015) (citing
Bremen, 407 U.S. at 17 (“the party arguing that a forum-selection clause is inapplicable
bear[s] a heavy burden of proof”) (internal quotation marks omitted)). Courts enforce a
forum selection clause “absent a strong showing that it should be set aside.” Bremen, 407
U.S. at 15. A strong showing can exist where (1) the clause is the product of fraud or
overreaching; (2) enforcement is unreasonable and unjust; (3) the enforcement of the clause
would render the proceedings gravely difficult and inconvenient to the point of practical
impossibility; or (4) enforcement contravenes a strong public policy of the forum in which
suit is brought, whether declared by statute or judicial decision. Huffington v. T.C. Grp.,
Inc., 637 F.3d 18, 23 (1st Cir. 2011).
Plaintiffs initially argue that Carnival’s motion is procedurally improper because
Carnival did not file a summary judgment motion, and that the ticket contract has not been
properly authenticated. Docket No. 25. But “a motion for summary judgment is not the
proper procedural vehicle to rely upon when determining whether venue is proper pursuant
to a forum selection clause.” Smith v. Lucent Techs., Inc., No. 02 - 0481, 2004 U.S. Dist.
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
6
LEXIS 4074, at *2 n.1 (E.D. La. Mar. 15, 2004) (citing Hanson Eng’rs Inc. v. UNESCO,
64 F. Supp. 2d 797, 799 (C.D. Ill. 1999)).
Moreover, the First Circuit has recognized an exception to the general rule that
review at this stage is limited to the allegations in the complaint: “the district court, may
consider ‘documents the authenticity of which are not disputed by the parties,’ ‘documents
central to plaintiffs’ claim,’ and ‘documents sufficiently referred to in the complaint.’”
Claudio-De Leon, 775 F.3d at 46 (quoting Rivera, 575 F.3d at 15). Since Carnival has
attached the affidavit of Maria Romero to authenticate the ticket contract, and since
plaintiffs have not proffered any evidence to dispute this issue, Carnival has met the
authenticity requirement. Docket No. 30, Exhibit A. See Laasko v. Xerox Corp., 566 F.
Supp. 2d 1018, 1021 (C.D. Cal. 2008) (“To properly authenticate documents used to
support a motion, a party must attach the documents as exhibits to an affidavit made by a
person through whom the exhibits could be admitted into evidence at trial.”) (citing Orr v.
Bank of America, NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002)). Also, the ticket contract
is a document central to determining Carnival’s liability for the tort claims raised in the
complaint. See Claudio-De Leon, 775 F.3d at 46.
Moving on, in determining the enforceability of a forum-selection clause, the First
Circuit has established a “reasonable communicativeness” standard, in which the court
makes two threshold inquiries. See Hoekstra v. Caribbean Cruises, Ltd., 360 F. Supp. 2d
362, 366 (D.P.R. 2005). First, a court must examine the facial clarity of the ticket contract
and determine whether its language and appearance make the relevant provisions
sufficiently obvious and understandable. Id. “The second prong focuses on the
‘circumstances of the passenger possession and familiarity with the ticket,’ which involves
scrutiny of any extrinsic factors indicating the passenger’s ability to become meaningfully
informed of the contractual terms at stake.” Id. (citing Shankles v. Costa Armatori, 722
F.2d 861, 864–866 (1st Cir. 1983); Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8–
9 (1st Cir. 1991)).
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
7
With respect to the first threshold question, the language used in the forumselection clause is not overly technical and is relatively straightforward––providing that
“all disputes whatsoever arising under, in connection with or incident to this contract or the
Guest’s cruise . . . shall be litigated, if at all, before the United States District Court for the
Southern District of Florida in Miami, . . . to the exclusion of any other county, state, or
country.” Docket No. 20 at 4. Terms such as “shall” and “exclusion” make this forumselection clause mandatory. See Rivera, 575 F.3d at 17 n.5 (“typical mandatory terms”
include “shall,” “exclusive,” “only,” or “must”); Silva v. Encyclopedia Britannica Inc., 239
F.3d 385, 388 n.6 (1st Cir. 2001) (“exclusive jurisdiction” in the context of a forumselection clause “refers to the intent of the parties [to have the court decline jurisdiction]
rather than the actual power of the court”).
Moreover, the First Circuit has generally held that the forum-selection clause
invites a broad application when its language does not explicitly limit the clause to
contract-based claims, and essentially covers any claim or dispute. See Huffington 637 F.3d
at 20–23 (“[f]orum selection clauses using embracing language are common and have
usually been construed broadly”). Here, the phrases “arising under, in connection with or
incident to,” are sufficiently broad to encompass the negligence claims raised by plaintiffs,
which bear some relation to the cruise trip. And because the “applicability of a forum
selection clause does not depend on the nature of the underlying action,” plaintiffs’ noncontract-based, tort claims are within the scope of the forum-selection clause. Rivera, 575
F.3d at 19. Finally, the forum-selection clause appears in text appearing as large as the text
in other portions of the ticket contract, and the clause appears not too far from a bolded
heading alerting the parties to the contract about the agreed-upon venue for disputes. See
Hoekstra, 360 F. Supp. 2d at 366. Thus, the ticket contract meets the first prong of the
“reasonable communicativeness” test. See id.
Similarly, the second threshold prong of the “reasonable communicativeness” test
focuses on the passengers’ possession and familiarity with the ticket. When the terms and
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8
conditions of a ticket contract have been reasonably communicated to the passenger,
“courts have uniformly held that the passenger is bound by the limitations clause even
though the passenger may not have read the contract.” Coleman v. Norwegian Cruise Lines,
753 F. Supp. 1490, 1495 (W.D. Mo. 1991) (citing Barbachym v. Costa Line, Inc., 713 F.2d
216, 220 (6th Cir. 1983)). Here, Carnival has submitted an affidavit attesting that plaintiffs
and the deceased accepted and acknowledged the terms and conditions of the ticket
contract. Docket No. 30, Exhibit A. Since plaintiffs do not make any allegation that the
clause was the result of fraud or overreaching, and nothing in the record suggests that the
clause is part of an unconscionable contract of adhesion, or that it is “so coercive and onesided as to have prevented the plaintiff from agreeing to its terms voluntarily,” I find the
clause valid. PK’s Landscaping v. New Eng. Tel. & Tel. Co., 128 N.H. 753, 756 (1986).
Plaintiffs’ argument that they were not sophisticated parties to negotiate the terms
and conditions of the contract also fails because the Bremen Court rejected the argument
that “nonnegotiated forum-selection clause in a form ticket contract is never enforceable
simply because it is not the subject of bargaining.” Carnival Cruise Lines v. Shute, 499
U.S. 585, 593 (1991) (citing Bremen, 407 U.S. at 12–13). Rather, plaintiffs are “required
to abide by the terms of a contractual obligation [they] freely and voluntarily undertook
and assume the foreseeable consequences of [their] decision.” Antilles Cement Corp. v.
Aalborg Portland A/S, 526 F. Supp. 2d 205, 210 (D.P.R. 2007).
To preclude enforcement of a valid forum-selection clause, “it should be incumbent
on the party seeking to escape his contract to show that trial in the contractual forum will
be so gravely difficult and inconvenient that he will for all practical purposes be deprived
of his day in court.” Bremen, 407 U.S. at 18. Plaintiffs attempt to meet this burden by
asserting that the event that caused the death of Martha Boekeloo took place in Puerto Rico,
and the necessary fact witnesses reside in Puerto Rico. Docket No. 25 at 5–6. “Although
there is some inherent inconvenience in any party having to litigate its claims in a foreign
forum, Florida is not a remote forum with regard to Puerto Rico since it is easily accessible
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
9
by a relatively short flight from the island.” Diaz Morales, 419 F. Supp. 2d at 101; see also
De La Mota Estrella v. Royal Caribbean Cruise Lines, Inc., No. 05-1475(PG), 2006 U.S.
Dist. LEXIS 64922, at *12–13 (D.P.R. 2006) (Miami is an accessible forum for parties
from Puerto Rico, and the forum-selection clause does not impose a heavy burden upon
plaintiffs). Indeed, because plaintiffs are residents of New Mexico, Compl. ¶ 1, it cannot
be said that “the balance of convenience was ‘strongly’ in favor of litigation in” Puerto
Rico. Bremen, 407 U.S. at 18.
And even if transfer would bring any additional burden or inconvenience to some
parties or witnesses, those inconveniences were “foreseeable at the time of contracting.”
De La Mota Estrella, 2006 U.S. Dist. LEXIS 64922, at *12–13. “As to the availability of
non-party witnesses who may not be within the reach of the Florida district court’s
subpoena power, the federal rules provide a mechanism that allows the litigation to
continue its course in accordance with the parties’ intent as expressed in the contract.”
Gonzalez v. Avatar Realty, Inc., 177 F. Supp. 2d 101, 105 (D.P.R. 2001) (citing Bremen,
407 U.S. at 17-18). Despite potential inconveniences, the court must still “weigh all of the
factors identified in § 1404(a), giving careful consideration to a forum selection clause
where one is present.” Home Prods. Int’l v. PeopleSoft USA, Inc., 201 F.R.D. 42, 49-50 (D.
Mass. 2001) (inconvenience “should be weighed against clear terms of a forum selection
clause”). “In light of the contract’s forum selection clause and absent overwhelming proof
of inconvenience,” the enforcement of the forum-selection clause would not gravely or
unduly inconvenience plaintiffs, so as to deprive them of their day in court. Gonzalez, 177
F. Supp. 2d at 105–06.
Plaintiffs next suggest that a transfer would offend public policy. Docket No. 25 at
7. The court must consider whether strong public policy is contravened by the enforcement
of the forum-selection clause, “whether declared by statute or by judicial decision.”
Claudio-de León, 775 F.3d at 49 (citing Bremen, 407 U.S. at 15, 18). Here, however,
“extremely strong public policy concerns urge the enforcement of such clauses.” Banco
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
10
Popular v. Airborne Grp. PLC, 882 F. Supp. 1212, 1215 (D.P.R. 1995). “As a corollary to
the liberty of contract contemplated in the Puerto Rico Civil Code, the parties can agree in
advance to a specified forum capable of resolving their disputes.” Id. (quoting Grissom v.
Colotti, 644 F. Supp. 903, 904 (D.P.R. 1986)). Additionally, “a clause establishing ex ante
the forum for dispute resolution has the salutary effect of dispelling any confusion about
where suits arising from the contract must be brought and defended, sparing litigants the
time and expense of pretrial motions to determine the correct forum and conserving judicial
resources that otherwise would be devoted to deciding those motions.” See Shute, 499 U.S.
at 593–94 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (concurring
opinion)).
Besides the public interest in respecting the legitimate expectations of parties when
they have entered into a contract, the Supreme Court has provided a list of relevant public
interest factors––including (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having localized controversies decided at home; (3) the
interest in having the trial of a case conducted in a forum that is at home with the governing
law; (4) the avoidance of unnecessary problems in conflict of laws or in the application of
foreign law; and (5) the unfairness of imposing jury duty on citizens in an unrelated forum.
See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981).
As to the first factor, the “District Court of Puerto Rico has one of the most
congested criminal and civil dockets in the nation.” Miranda-Lopez v. Figueroa-Sancha,
943 F. Supp. 2d 276, 279 (D.P.R. 2013); see also Marquez v. Drugs Unlimited, Inc., 737 F.
Supp. 2d 66, 68 (D.P.R. 2010) (“In this extremely congested district, both on the civil and
criminal dockets, it is . . . extremely important for the court to effectively manage its
caseload.”). As to the second factor, since Carnival is a foreign corporation headquartered
in Florida, letting the Southern District of Florida exercise its jurisdiction is not offensive
to any public policy of Puerto Rico. Compl. ¶ 3. As to the third factor, while it is true that
plaintiffs’ claims against Ecoquest and Hacienda Campo Rico Inc. are more likely to be
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
11
governed by Puerto Rico law, the parties agree that plaintiffs’ claims against Carnival are
to be governed by federal maritime law. Docket No. 20 at 4; Docket No. 25 at 6. Regarding
the disputes between plaintiffs and Carnival, the balance does not overwhelmingly favor
Puerto Rico as a forum. By the same token, transferring only the claims against Carnival
to the Southern District of Florida would render moot plaintiffs’ argument relative to the
conflict of laws and their objection to the lack of personal jurisdiction of a Florida court
over the Puerto Rico defendants. Thus, as to the claims against Carnival, there is no public
policy that overwhelmingly favors the forum of Puerto Rico, and the plaintiffs have failed
to overcome the presumptive enforceability of the forum-selection clause.
II.
Dismissal for failure to state a claim
Carnival contends that the negligence claims are not properly pled with sufficient
particularity, and should be dismissed under Federal Rules of Civil Procedure 12(b)(6).
Docket No. 20 at 7; Docket No. 30 at 9. Since the forum-selection clause allows for
disputes between plaintiffs and Carnival to be litigated and decided only by the District
Court for the Southern District of Florida, the issue of whether the complaint states a claim
against Carnival should be decided by that forum, and I express no view whatsoever on
this issue. See Hernandez-Rivera v. Carnival Corp., No. 06-2057, 2008 U.S. Dist. LEXIS
28768, at *13–14 (D.P.R. 2008) (after court found forum-selection clause valid, court set
aside “those unresolved issues aside for the appropriate court to decide”).
III.
Transfer of the case, or only the claims against Carnival?
Having determined the enforceability of the forum-selection clause, the court now
faces a situation where venue is proper for some defendants but not others. “The Court
must take one of three steps: dismiss the case against those defendants [to whom venue is
improper], transfer the entire case to a venue that would be proper as to all defendants, or
sever the defendants for which venue is improper and transfer those cases.
Am. Water Works Co. v. Util. Workers Local 423, No. 11-CV-1462-WJM, 2011 U.S. Dist.
LEXIS 108918, at *8 (D.N.J. 2011) (citing Cottman Transmission Sys. v. Martino, 36 F.3d
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
12
291, 292 (3d Cir. 1994)); 15 Charles Alan Wright, et al., Federal Practice and Procedure §
3827 (4th ed. 2015) (“If venue is proper for some defendants but improper for others, the
district court has wide discretion.”).
The Southern District of Florida is an improper venue for Ecoquest and Hacienda
Campo Rico Inc. because “[n]one of the three subsections of section 1391(a) are pertinent
here.” Stars for Art Prod. FZ, LLC v. Dandana, LLC, 806 F. Supp. 2d 437, 448 (D. Mass.
2011). Under this statute,
[a] civil action wherein jurisdiction is founded only on diversity of
citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in
the same State, (2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of the
property that is the subject of the action is situated, or (3) a judicial district
in which any defendant is subject to personal jurisdiction at the time the
action is commenced, if there is no district in which the action may be
otherwise brought.
28 U.S.C. § 1391(a). Subsection (a)(1) does not establish proper venue because neither
Ecoquest nor Campo Rico is a resident of Florida. Compl. ¶ 6. Subsection (a)(2) does not
apply because the events or omissions giving rise to plaintiffs’ claims occurred in Puerto
Rico, outside the Southern District of Florida. Id. Finally, subsection (a)(3) is inapplicable
here because the District of Puerto Rico is clearly one of such “districts in which the action
may be otherwise brought” for Ecoquest and Campo Rico, i.e., the Southern District of
Florida is not the only district where an action can be brought.
Since the Southern District of Florida is not a proper venue for Ecoquest and Campo
Rico, “[t]ransferring the entire case is out of the question.” Am. Water Works Co., 2011
U.S. Dist. LEXIS 108918, at *8. Therefore, the court “determines that it would be in the
interest of justice to sever and transfer the claims against the Out-of-State [defendant].”
Fuller v. FCI Manchester Health Serv., No. 12-7025 (NLH), 2016 U.S. Dist. LEXIS 40062,
at *22 (D.N.J. 2016); see also In re Rolls Royce Corp., 775 F.3d 671, 681 (5th Cir. 2014)
Gibson, et al. v. Ecoquest, Inc., et al., Civil No. 16-2702 (BJM)
13
(when case involves multiple defendants, and some but not all parties agreed to a forum
selection clause, court may sever the claims against party who entered into forum-selection
clause and transfer those claims to the forum selected by the parties to the contract).
Plaintiffs object to the severance of claims, arguing that it would create two federal
court proceedings and public interest would be disserved. Docket No. 25 at 6. But the
possibility of multiple parallel proceedings was a contingency entirely foreseeable to
plaintiffs when they agreed to the forum-selection clause. See St., Sound Around Elecs.,
Inc. v. M/V Royal Container, 30 F. Supp. 2d 661, 663 (S.D.N.Y. 1999) (citing Bremen, 407
U.S. at 18–19). “Refusing to enforce a forum selection clause on this basis would
undermine whatever measure of certainty such clauses bring” to cruise trip transactions,
“in which they are commonly employed.” Id. Finally, retaining jurisdiction over Ecoquest
and Campo Rico resolves the choice-of-law problem raised by plaintiffs as a result of the
alleged release signed between plaintiffs and Ecoquest, providing that Puerto Rico law
would apply. Docket No. 25 at 6. Severing the claims would allow the Southern District of
Florida to exercise its appropriate jurisdiction over Carnival, and the District of Puerto Rico
to do so over defendants subject to personal jurisdiction in Puerto Rico.
CONCLUSION
For the foregoing reasons, the claims against Carnival will be SEVERED from this
action, and the Clerk of the Court shall TRANSFER the claims against Carnival to the
United States District Court for the Southern District of Florida. This court retains
jurisdiction over the claims against all other defendants.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of July 2017.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
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