Tantalos v. Oroverde Corp. et al

Filing 34

OPINION AND ORDER: For the reasons set forth in this Opinion and Order, the 23 Motion for Summary Judgment is GRANTED and the Complaint is DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 1/18/2023. (mrr)

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARMEN B. TANTALOS,
Plaintiff,
CIVIL NO. 22-1023 (RAM)

v.
TORO VERDE ENTERPRISES, LLC;
OROVERDE
CORP.;
UNIVERSAL
INSURANCE COMPANY,
Defendants.

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, United States District Judge
Pending
Enterprises,

before
LLC,

the

Court

Oroverde

is

Corp.,

codefendants
and

Universal

Toro

Verde

Insurance

Company’s (together, “Defendants”) Motion for Summary Judgment
(“MSJ”). (Docket No. 23). For the reasons set forth below, the
Court finds that it lacks jurisdiction over this action pursuant
to a mandatory and enforceable forum selection clause. Therefore,
the

MSJ

is

GRANTED,

and

the

Complaint

is

DISMISSED

WITHOUT

PREJUDICE.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2019, plaintiff Carmen B. Tantalos (“Plaintiff”)
suffered serious injuries while riding The Monster zipline at the
Toro Verde Adventure Park in Orocovis, Puerto Rico. Plaintiff
attributes her injuries to Toro Verde’s failure to properly install

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 2 of 22
Civil No. 22-1023 (RAM)

2

and operate the zipline – particularly the braking mechanisms – as
her injuries were caused when she crashed into several items
hanging on the end of the zip line at full speed after failing to
slow down or stop upon reaching the landing platform.
On January 12, 2022, Plaintiff filed her six-count Complaint
in this action. (Docket No. 1). 1 Defendants then moved to dismiss
the Complaint, pointing to a mandatory forum selection clause in
the waiver Plaintiff signed before participating in the zipline
ride which mandates that such disputes be litigated in the courts
of the Commonwealth of Puerto Rico. (Docket No. 11). To support
their motion to dismiss, Defendants relied on materials outside
the pleadings, including a deposition transcript. Id. Plaintiffs
thereafter submitted an opposition to the motion to dismiss, which
was supported by affidavits and a deposition transcript. (Docket
Nos.

15;

15-1;

15-2;

15-3).

The

Court

found

this

additional

evidence relevant to this dispute, and thus converted Defendants’
motion to dismiss to a motion for summary judgment. (Docket No.

1 This is the third time Plaintiff has filed a complaint seeking to recover for
these injuries. The first complaint was filed in Civil Case No. 19-1960 in this
Court on October 9, 2019. Defendants moved to dismiss that complaint based on
the forum selection clause discussed in this Opinion and Order. (Case No. 191960, Docket No. 8). Plaintiff thereafter filed a Notice of Voluntary Dismissal,
which the court granted. (Case No. 19-1960, Docket Nos. 11; 12). Plaintiff then
filed a complaint in Case No. AI2020cv00003 before the Puerto Rico Court of
First Instance, Aibonito Part. (Docket No. 1 ¶ 47). That case was dismissed
without prejudice pursuant to the parties’ Joint Stipulation of Dismissal
Without Prejudice. Id. ¶ 48. The state court judgment stated that the statute
of limitations would accrue from the date of its issuance – July 7, 2021. Id.
¶ 49.

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 3 of 22
Civil No. 22-1023 (RAM)

3

22). The parties then submitted additional briefing and exhibits
in support of their positions. (Docket Nos. 23; 27; 28; 32).
II.

STANDARD OF REVIEW

Summary judgment is proper if the movant shows: (1) the
absence of a genuine dispute as to any material fact; and (2)
entitlement to judgment as a matter of law. See Fed. R. Civ. P.
56(a). A genuine dispute exists “if the evidence about the fact is
such that a reasonable jury could resolve the point in favor of”
the nonmovant. Alicea v. Wilkie, 2020 WL 1547064, at *2 (D.P.R.
2020) (internal quotation marks and citation omitted). A fact is
material only if it can alter the outcome of the suit under the
governing law. See DLJ Mortg. Cap., Inc. v. Vazquez Perez, 2021 WL
3668241, at *2 (D.P.R. 2021) (internal quotation marks and citation
omitted). “The nonmoving party may defeat a summary judgment motion
by demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.” Robinson v. Town of Marshfield, 950
F.3d 21, 24 (1st Cir. 2020) (internal quotation marks and citation
omitted).
Local Rule 56 also governs motions for summary judgment in
this District. See L. CV. R. 56. Per this Rule, a nonmovant must
admit, deny or qualify the facts supporting the summary judgment
motion by referencing each paragraph of the movant’s statement of
material facts. Id. Adequately supported facts shall be deemed
admitted unless controverted per the manner set forth in the local

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 4 of 22
Civil No. 22-1023 (RAM)

4

rule. See Vogel v. Universal Insurance Company, 2021 WL 1125015,
at

*2

(D.P.R.

2021)

(internal

quotation

marks

and

citation

omitted). Litigants ignore this Rule at their peril. Id.
III.

FINDINGS OF FACT 2

To make findings of fact, the Court reviewed Defendants’
Statement

of

Undisputed

Material

Facts

(“SUMF”),

Plaintiff’s

Answer to Defendants’ SUMF and her Reply Statement of Material
Facts

(“RSMF”),

and

Defendants’

Answer

to

Plaintiff’s

RSMF.

(Docket Nos. 23; 27; 32). After crediting only statements of fact
properly supported by the record, uncontroverted, and material to
the resolution of the MSJ, the Court makes these findings of fact.
1.

On May 26, 2019, Plaintiff went to the Toro Verde Adventure
Park in Orocovis, Puerto Rico to participate in the zipline
ride named “The Monster.” (Docket Nos. 15-1 ¶ 3; 23 ¶ 1;
27 ¶ 1).

2.

Plaintiff was accompanied by her brother, her mother, her
five-year-old niece, and a friend. (Docket Nos. 15-1 ¶ 3;
23 ¶ 2; 27 ¶ 1).

3.

Plaintiff’s brother paid Plaintiff’s admission fees to the
Toro Verde Park. (Docket Nos. 15-1 ¶ 4; 15-2 ¶ 3; 27 ¶ 2).

Later references to each Finding of Fact in this Opinion and Order are cited
as follows: (Fact ¶ __).
2

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Civil No. 22-1023 (RAM)
4.

5

After paying the entrance fees, Plaintiff’s brother waited
on a line to get zipline equipment while Plaintiff looked
after her niece. (Docket Nos. 15-1 ¶ 5; 15-2 ¶ 4; 27 ¶ 3).

5.

Plaintiff’s niece was hyperactive and running around the
property. (Docket Nos. 15-1 ¶ 5; 23 ¶ 11; 23-3 at 11).

6.

While Plaintiff’s brother was waiting in the line, a Toro
Verde employee asked people in that line to sign a document
on a tablet the employee was holding. (Docket Nos. 15-2
¶ 5; 27 ¶ 4).

7.

This document was a release of liability, assumption of
risk, waiver of claims and indemnification agreement (the
“Agreement”). (Docket No. 23 ¶ 3).

8.

Each participant had to sign the Agreement before they
could ride The Monster. (Docket Nos. 15-1 ¶ 8; 15-2 ¶ 7;
23 ¶ 3).

9.

Plaintiff’s brother provided his contact information to
the Toro Verde employee and signed the Agreement. (Docket
Nos. 15-2 ¶ 7; 27 ¶¶ 6, 20).

10.

Plaintiff’s

brother

Plaintiff’s

full

then

name,

provided

age,

the

telephone

employee
number,

with
email,

emergency contact, and the date of her tour, which the
employee entered on the tablet. (Docket Nos. 15-2 ¶ 8; 23
¶ 7; 27 ¶ 7).

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Civil No. 22-1023 (RAM)
11.

6

Page three (3) of the Agreement contained the following
forum selection clause: “I agree and accept that this
document,

and

any

claim,

suit,

litigation

or

legal

proceeding related to the same shall be subject to and
interpreted exclusively in accordance with the laws of the
Commonwealth of Puerto Rico, and that any such proceeding
shall be carried out exclusively in the state courts of
the Commonwealth of Puerto Rico.” (Docket Nos. 23 ¶ 5; 232 at 3).
12.

Once provided by her brother and entered by the employee,
Plaintiff’s information appeared on page three (3) of the
Agreement, immediately after the forum selection clause.
(Docket Nos. 23 ¶¶ 7, 12; 23-2 at 3).

13.

While she was watching her hyperactive niece, Plaintiff’s
brother called Plaintiff over to the line to sign the
Agreement. (Docket Nos. 23 ¶ 11; 23-3 at 11; 27 ¶ 9).

14.

When Plaintiff arrived at the line, the Toro Verde employee
holding

the

tablet

asked

Plaintiff

to

sign

in

the

designated space. (Docket Nos. 15-1 ¶ 8; 15-2 ¶ 10; 27
¶ 10).
15.

The employee held the tablet at all times and did not hand
it to Plaintiff or her brother. (Docket Nos. 15-1 ¶ 12;
15-2 ¶ 7; 27 ¶ 15).

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 7 of 22
Civil No. 22-1023 (RAM)
16.

7

The employee did not discuss the contents of the Agreement
with Plaintiff. (Docket Nos. 15-1 ¶ 10; 15-2 ¶ 12; 23 ¶ 14;
23-3 at 94; 27 ¶ 13).

17.

Just

above

the

space

provided

in

the

Agreement

for

Plaintiff’s signature, the Agreement stated, in capital
letters: “BY MY SIGNATURE I CERTIFY THAT I HAVE READ AND
UNDERSTOOD THIS DOCUMENT IN ITS ENTIRETY. I AM AWARE OF
THE RISKS I AM ASSUMING AND THE RIGHTS I AM WAIVING, AND I
ACCEPT THIS AGREEMENT IN ITS ENTIRETY VOLUNTARILY AND
WITHOUT OBJECTION OR LIMITATION.” (Docket Nos. 23 ¶ 13;
23-2 at 4).
18.

Plaintiff did not read the Agreement. (Docket No. 23-3 at
59-60).

19.

Plaintiff signed page four (4) of the Agreement in the
space provided. (Docket Nos. 23 ¶ 6; 23-2 at 4).

20.

Plaintiff signed the Agreement at the direction of, and
due to her trust in, her brother. (Docket No. 23-3 at 98).

21.

After signing the Agreement, Plaintiff immediately took
her niece to the restroom. (Docket Nos. 15-1 ¶ 9; 15-2
¶ 10; 23 ¶¶ 14, 15; 23-3 at 11; 27 ¶ 11).

22.

The Agreement was in Spanish. (Docket Nos. 23 ¶ 8; 27
¶ 18).

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 8 of 22
Civil No. 22-1023 (RAM)
23.

8

Plaintiff understands Spanish. (Docket Nos. 23 ¶ 9; 23-3
at 4). 3

24.

Plaintiff

did

not

request

an

English

version

of

the

Agreement at any time. (Docket Nos. 23 ¶ 10; 27 ¶ 18).
25.

Plaintiff voluntarily participated in the zipline ride.
(Docket Nos. 23 ¶ 18; 23-3 at 21).
IV.

APPLICABLE LAW

In general, contractual forum selection clauses “are prima
facie valid and should be enforced unless doing so is shown by the
resisting

party

to

be

unreasonable

under

the

circumstances.”

Marrero v. Aragunde, 537 F. Supp. 2d 305, 308 (D.P.R. 2008), aff'd,
341 F. App'x 656 (1st Cir. 2009) (citing M/S Bremen v. Zapata OffShore

Co.,

407

U.S.

1,

10-13

(1972)).

To

determine

the

enforceability of the forum selection clause at issue here, the
Court will apply federal common law. As the First Circuit has
noted, “there is no conflict between federal common law and Puerto
Rico law regarding the enforceability of forum-selection clauses.”
Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 16 (1st Cir.
2009) (internal quotation marks and citations omitted). Thus, the

3 The cited portion of the deposition transcript is in Spanish. The translation
is:

Attorney Prats: Ok. Do you understand Spanish?
Mrs. Carmen B. Tántalos: Yes.

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 9 of 22
Civil No. 22-1023 (RAM)

9

application of federal common law does not present a conflict of
laws issue.
“Federal common law regarding the enforceability of forumselection clauses ordinarily entails several steps.” Rivera v.
Kress Stores of Puerto Rico, Inc., 30 F.4th 98, 103 (1st Cir. 2022)
(citing Claudio-De Leon v. Sistema Universitario Ana G. Mendez,
775

F.3d

41,

46-47

(1st

Cir.

2014)).

First,

the

Court

must

determine whether the clause at issue is permissive or mandatory.
See Claudio-De Leon, 775 F.3d at 46. Second, the Court must
ascertain the clause’s scope. Id. at 47. The third and “final step
in evaluating the clause involves asking whether there is some
reason the presumption of enforceability should not apply.” Id. at
48 (internal quotation marks and citation omitted).
V.

DISCUSSION

A. The Forum Selection Clause is Mandatory
First, the Court must determine the threshold issue of whether
the forum selection clause is mandatory or permissive. Permissive
clauses merely “authorize personal jurisdiction in a designated
forum but do not prohibit litigation of covered claims elsewhere,”
while

mandatory

clauses

dictate

“the

exclusive

forum

for

litigation.” Kress Stores, 30 F.4th at 103 (internal quotation
marks and citations omitted). This inquiry usually hinges on
whether

the

connotation,

provision
such

as

includes
“shall.”

any
See

terms

with

Haddock-Acevedo

a

mandatory
v.

Bd.

of

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 10 of 22
Civil No. 22-1023 (RAM)

10

Governors of Univ. of Puerto Rico, 2022 WL 2704507, at *3 (D.P.R.
2022) (collecting cases).
The forum selection provision in the case at bar is clearly
mandatory. It expressly states that any proceeding related to the
Agreement “shall be carried out exclusively in the state courts of
the Commonwealth of Puerto Rico.” (Docket No. 23-2 at 3) (emphasis
added). Thus, absent a waiver, this clause requires the parties to
litigate the covered claims exclusively in the state courts of the
Commonwealth of Puerto Rico. See Kress Stores, 30 F.4th at 103.
B. The Forum Selection Clause Covers This Action
The forum selection clause in the Agreement is also broad. It
states that any proceeding “related to” the Agreement “shall be
carried out exclusively in the state courts of the Commonwealth of
Puerto Rico.” (Docket No. 23-2 at 3) (emphasis added). As this
Court recently explained, First Circuit precedent dictates that
“‘related to’ should be read broadly to mean ‘connected by reason
of an established or discoverable relation.’” Haddock-Acevedo,
2022 WL 2704507, at *4 (citing Huffington v. T.C. Grp., LLC, 637
F.3d 18, 22 (1st Cir. 2011)). Plaintiff’s action, which seeks to
recover for injuries sustained while riding Defendants’ zipline,
is

undoubtedly

“connected

by

reason

of

an

established

or

discoverable relation” to a waiver Plaintiff signed in which she
agreed to hold Defendants harmless for certain injuries she may
sustain

while

riding

the

zipline.

Given

this

comprehensive

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 11 of 22
Civil No. 22-1023 (RAM)
language,

the

Court

11

finds

that

this

action

falls

within

the

clause’s broad scope.
C. The Forum Selection Clause Was Not the Product of Fraud and
Its Enforcement Would Not Be Unreasonable
Having
mandatory

determined

and

covers

that

the

Plaintiff’s

forum

selection

claims,

“the

clause

final

step

is
in

evaluating the clause involves asking whether there is some reason
the presumption of enforceability should not apply.” Claudio-De
Leon,

775

F.3d

at

48

(internal

quotation

marks

and

citation

omitted). Because forum selection clauses are prima facie valid
and enforceable, the Court will not set this clause aside absent
a “strong showing” from Plaintiff that it is unreasonable under
the circumstances. Id. The First Circuit has made clear that “the
party

resisting

demonstrating

why

enforcement
the

bears

clause

the

should

‘heavy
not

be

burden’

of

enforced[.]”

Huffington, 637 F.3d at 23 (citation omitted) (emphasis added).
Parties generally may challenge the enforceability of a forum
selection clause on four grounds:
(1)

the clause was the product of fraud or
overreaching;

(2)

enforcement
unjust;

(3)

proceedings in the contractual forum will
be so gravely difficult and inconvenient
that the party challenging the clause
will for all practical purposes be
deprived of his day in court; or

would

be

unreasonable

and

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 12 of 22
Civil No. 22-1023 (RAM)
(4)

12

enforcement would contravene a strong
public policy of the forum in which suit
is brought, whether declared by statute
or by judicial decision.

Claudio-De Leon, 775 F.3d at 48-49 (internal quotation marks and
citation

omitted).

Here,

Plaintiff

does

not

contend

that

proceedings in the contractual forum will be gravely difficult and
inconvenient or that enforcement of the forum selection clause
would contravene a strong public policy of Puerto Rico. Thus, the
Court will focus its analysis on the first two grounds – whether
the clause was the product of fraud and whether its enforcement
would be unreasonable and unjust.
1. The Clause Was Not the Product of Fraud
In

general,

a

contract

is

unenforceable

“if

a

party’s

manifestation of assent is induced by either a fraudulent or
material misrepresentation by the other party upon which the
recipient is justified in relying.” Centro Medico de Turabo, 575
F.3d at 20 (internal quotation marks and citation omitted). To
meet her “heavy burden of demonstrating why the [forum selection]
clause should not be enforced” here, Plaintiff must do more than
show that the Agreement was induced by fraud. Huffington, 637 F.3d
at 23. She must make “a focused showing . . . that the inclusion
of [the forum selection clause] was the product of fraud or
coercion.”

Id.

at

24

(internal

quotation

marks

and

citation

omitted) (emphasis added). Plaintiff admits in her brief that she

Case 3:22-cv-01023-RAM Document 34 Filed 01/18/23 Page 13 of 22
Civil No. 22-1023 (RAM)

13

is not attempting to make this “focused showing.” Instead, she
contends that “[t]he Defendants purposely concealed the entire
terms and conditions of the document[.]” (Docket No. 28 at 14)
(emphasis added). Therefore, Plaintiff fails to meet her heavy
burden of showing why the inclusion of this forum selection clause
was

the

product

of

fraud.

Nonetheless,

as

explained

below,

Plaintiff’s more general allegations of fraudulent concealment of
the entire Agreement are insufficient as well.
a. There Was No Fraudulent Concealment
Plaintiff primarily contends that the forum selection clause
in the Agreement is unenforceable because the Toro Verde park
employee fraudulently concealed all of its terms by showing her
only the signature page of the Agreement and not providing her a
chance to read the entire contract. (Docket No. 28 at 10) (“Knowing
that the Document had four pages filled with terms and conditions,
the park employee purposely chose to show Plaintiff only the very
last page which has basically no information on it.”). Her analysis
revolves around the two-prong “reasonable communicativeness” test,
which she asserts is the governing test for fraudulent concealment
of a contractual provision under First Circuit precedent. Id. at
13-14 (citing, inter alia, Shankles v. Costa Armatori, S.P.A., 722
F.2d 861 (1st Cir. 1983)). Under that test, to determine whether
a contractual provision has been “reasonably communicated” to one
of the contracting parties, rendering it enforceable, a court must

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Civil No. 22-1023 (RAM)

14

examine both (1) the facial clarity of the contract and (2)
scrutinize the circumstances of the plaintiff’s “possession of and
familiarity with the” contract. Lousararian v. Royal Caribbean
Corp., 951 F.2d 7, 8-9 (1st Cir. 1991) (citing Shankles, 722 F.2d
at 865-66). The inquiry into the second prong “does not depend
upon actual knowledge of the terms in the contract of passage, but
focuses instead on the opportunity for such knowledge. Id. at 11
(emphasis in original).
However,

courts

communicativeness’

have

standard,

noted
and

that
the

“the

‘reasonable

accompanying

two-part

analysis described in Shankles, is the standard applicable to suits
in admiralty subject to a special one-year statute of limitations.”
Noel v. Walt Disney Parks & Resorts U.S., Inc., 2011 WL 1326667,
at *7 (D. Mass. 2011) (citing Muratore v. M/S Scotia Prince, 845
F.2d 347, 350-51 (1st Cir. 1988)). Therefore, “[a]lthough Shankles
and its progeny are relevant to the Court’s consideration of
reasonableness . . . they are not controlling.” Id. Nevertheless,
Plaintiff’s arguments are unpersuasive whether analyzed under the
Shankles test or not, because Plaintiff had plenty of opportunity
to learn of the terms in the Agreement. 4
It is worth noting that, although Plaintiff cites four cases for the
proposition that “[a] forum selection clause is invalid and unenforceable if
[it] is concealed by one party,” none of those cases actually held that the
forum selection clause at issue was fraudulently concealed. (Docket No. 28 at
10) (citing Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 118 (D.D.C.
2008); 2215 Fifth St. Assocs., LP v. U-Haul Int'l, Inc., 148 F. Supp. 2d 50, 55
(D.D.C. 2001); Hunter Distributing Co., Inc. v. Pure Beverage Partners, 820 F.
Supp. 284, 286-87 (N.D. Miss. 1993); Hartash Constr., Inc. v. Drury Inns, Inc.,
4

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Civil No. 22-1023 (RAM)

15

Plaintiff primarily contends that the forum selection clause
was fraudulently concealed from her because she had “no opportunity
whatsoever to become familiar with the terms of the” Agreement.
(Docket No. 28 at 14). However, the undisputed facts in the record
show that Plaintiff simply made no effort to and had no interest
in becoming familiar with the terms, including the forum selection
clause.
First, the express language of the Agreement put Plaintiff on
notice that she was agreeing to specific terms and conditions by
signing

the

tablet.

The

last

page

of

the

Agreement

–

which

Plaintiff admits she saw – stated, in capital letters just above
the space for Plaintiff’s signature: “BY MY SIGNATURE I CERTIFY
THAT I HAVE READ AND UNDERSTOOD THIS DOCUMENT IN ITS ENTIRETY. I
AM AWARE OF THE RISKS I AM ASSUMING AND THE RIGHTS I AM WAIVING,
AND I ACCEPT THIS AGREEMENT IN ITS ENTIRETY VOLUNTARILY AND WITHOUT
OBJECTION OR LIMITATION.” (Fact ¶ 17). Plaintiff’s argument that,
“as a lay person, she had no reason to believe there were three
other pages with additional terms and conditions” is unpersuasive.
(Docket No. 27 ¶ 13). Even a lay person with no legal training or
experience would understand that this clause meant there was more
to the document than just a signature page. Plaintiff had express

2000 WL 1140498, at *6 (E.D. La. 2000)). In fact, Plaintiff’s cited cases
highlight the weaknesses in her own arguments regarding fraudulent concealment
and underscore her heavy burden in seeking to invalidate this forum selection
clause on that basis.

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Civil No. 22-1023 (RAM)

16

notice that she was agreeing to certain terms and waiving certain
rights and chose not to inquire further about those terms or rights
before

providing

her

signature.

That

is

not

fraudulent

concealment.
Second, the undisputed facts in the record belie Plaintiff’s
assertion that a Toro Verde employee rushed her to sign the
Agreement before she could read it. As an initial matter, Plaintiff
admitted at her deposition that she signed the Agreement not
because any park employees told her to, but because her own brother
told her to. (Fact ¶ 20). Additionally, Plaintiff’s deposition
testimony evinces that she signed the Agreement without reading it
because of her niece, not a park employee. She explained during
her deposition that she agreed to watch her niece while her brother
handled the ticketing and paperwork at the park. (Fact ¶ 4). She
also described how hyperactive her niece was that day and how that
responsibility involved taking her niece to various places on the
Toro Verde property. (Fact ¶ 5). When Plaintiff’s brother called
her over to sign the Agreement, she was in the process of taking
her niece to the restroom. (Facts ¶¶ 13, 21). These undisputed
facts show that Plaintiff rushed to sign the Agreement because she
had to keep up with her hyperactive niece who had to use the
restroom.
conclusion

More
that

importantly,
the

Toro

in

Verde

no

way

employee

do

they

support

purposefully

the

rushed

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Civil No. 22-1023 (RAM)

17

Plaintiff into signing the Agreement so that she could not read it
in its entirety.
In fact, the only averment in the summary judgment record
before the Court that indicates park employees rushed patrons to
sign the Agreement can be found in Plaintiff’s brother’s affidavit.
The affidavit states that “[t]he lady with the tablet was hurrying
people on the line, including myself, to sign the document because
our group was behind schedule to go on the zipline tour.” (Docket
No. 15-2 ¶ 6). That single declaration does not even discuss
whether Plaintiff herself was rushed to sign the Agreement and
does not undermine Plaintiff’s own admissions in her deposition to
the contrary.
Third,

it

is

well

established

that

Defendants

had

no

affirmative duty to explain the significance of the forum selection
clause to Plaintiff before she signed the Agreement. The First
Circuit rejected a very similar argument in Centro Medico de
Turabo, ruling that “the absence of an explanation about the
significance of [a] forum selection clause . . . cannot serve as
a

basis

for

a

misrepresentation

claim[.]”

575

F.3d

at

20.

Therefore, even though Plaintiff is a “lay person” with no legal
background,

the

Court

will

not

invalidate

this

clause

in

an

agreement Plaintiff voluntarily signed simply because the employee
did not highlight and explain its significance to her.

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Civil No. 22-1023 (RAM)

18

Finally, the Court disagrees with Plaintiff’s contention that
the “issue of whether or not [she] was given an opportunity to
inspect the whole document is an issue of credibility” that must
be left to a jury. (Docket No. 28 at 11). As discussed, the record
establishes

that

Plaintiff

signed

the

Agreement

because

her

brother told her to, and that she made no attempt to read the
Agreement or inquire about its terms. The record also lacks any
evidence that Plaintiff was rushed by Toro Verde employees, and in
fact evinces that Plaintiff was rushed by her own niece and
brother. There are no credibility issues at play that must be left
to a jury. The terms of the Agreement simply were not fraudulently
concealed from Plaintiff.
2. Enforcement of the Clause Would Not Be Unreasonable
and Unjust
The Court also finds that it would not be unreasonable or
unjust to enforce the forum selection clause against Plaintiff.
Her contentions to the contrary can be grouped into two categories,
each of which is addressed in turn below.
a. Enforcement of the Clause, Which Was Provided
After Payment but Before Plaintiff Went on the
Zipline, is not Unreasonable or Unjust
Plaintiff first asserts that the forum selection clause is
unenforceable because she was asked to sign the Agreement after
paying to ride the zipline. (Docket No. 28 at 17). She cites three
cases that supposedly establish that “when [a] forum selection

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Civil No. 22-1023 (RAM)

19

clause is provided after the defendant has charged for its product
or

service,

the

forum

selection

clause

will

be

rendered

unenforceable.” Id. at 16. After reviewing the unpublished and
nonbinding cases Plaintiff relies on, the Court is not persuaded
that the reasoning underlying those cases is applicable here.
Plaintiff primarily relies on Flowserve Corp. v. Hallmark Pump
Co., 2010 WL 2232285 (S.D. Tex. 2010) and Larsen v. Kerzner Int'l
Hotels Ltd., 2009 WL 1759585 (S.D. Fla. 2009), two cases where a
district court held that it would be unreasonable to enforce a
forum selection clause because the plaintiffs did not know about
or have any reason to inquire about it before using the defendants’
services. 5 In Flowserve, the court found that “at no point” did
the defendant’s representative “even mention that there existed
terms and conditions in a service agreement that affected [the
plaintiff’s] rights” before the plaintiff entered into a contract
with the defendant. 2010 WL 2232285, at *3. And in Larsen, the
plaintiff

“never

received,

read,

or

acknowledged

the

forum

selection clause at any time prior to or during her stay at” the
defendant’s property. 2009 WL 1759585, at *6.
In this case, Plaintiff was presented with the Agreement
before she went on the zipline ride. Plaintiff does not allege
that she was contractually obligated to ride the zipline upon
The third case, Terrebonne v. Commodore Cruise Lines Ltd., 1993 WL 534051
(E.D. La. 1993), will not be discussed at length because it applied federal
maritime law, which is inapplicable in this case. Id. at 1.
5

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Civil No. 22-1023 (RAM)

20

payment or that she had no legitimate alternative to taking the
ride. Compare Montoya v. CRST Expedited, Inc., 285 F. Supp. 3d
493, 498 (D. Mass. 2018) (declining to enforce forum selection
clause in part because, “if [the plaintiff] declined to sign, he
would have been stranded in Iowa without bus fare home and with a
debt of $2,000”) with Centro Medico de Turabo, 575 F.3d at 22
(enforcing forum selection clause in part because hospital patient
“had the option of going to another hospital”); see also Fact ¶ 25.
Instead, she could have sought a refund if she read the Agreement
and took issue with its terms. While Flowserve and Larsen would
have been more analogous had Plaintiff been asked to agree to the
forum selection clause after riding the zipline, that is not the
case. In summary, it is not unreasonable to enforce this forum
selection clause against Plaintiff even though she did not see the
Agreement until after her brother paid her park admission fee.
b. The Forum Selection Clause is Clearly Written in
a Language Plaintiff Understands
Additionally, while Plaintiff does not expressly argue that
enforcement of the clause is unreasonable due to the fact that it
was presented only in Spanish, Plaintiff does mention that the
Agreement

was

in

Spanish

and

that

English

is

her

“primary

language.” (Docket Nos. 1 at 4-5; 15-1 ¶ 15). However, as set forth
in the Findings of Fact, the record establishes that Plaintiff
understands Spanish and, after seeing that the Agreement was in

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Civil No. 22-1023 (RAM)

21

Spanish, she did not ask for an English copy. (Facts ¶¶ 23, 24).
Additionally, Plaintiff concedes that the wording of the forum
selection
Therefore,

clause
the

is

Court

“quite

clear.”

concludes

that,

(Docket
had

No.

28

Plaintiff

at

14).

read

the

Agreement before signing it, she would have understood the forum
selection clause. Thus, nothing about the way the clause is written
warrants a finding that its enforcement is unreasonable or unjust.
Further, even if Plaintiff had some difficulty understanding
the

Agreement

in

Spanish,

the

First

Circuit

has

adopted

the

“general and well established principle of contract law that one
who is ignorant of the language in which a document is written, or
who is illiterate, may be bound to a contract by negligently
failing to learn of its contents.” Soto v. State Indus. Prod.,
Inc., 642 F.3d 67, 78 (1st Cir. 2011) (internal quotation marks
and citations omitted). As discussed, the undisputed facts show no
sign of fraud by Defendants, and Plaintiff’s unawareness of the
forum selection clause is attributable to her own failure to learn
of the Agreement’s contents. Thus, the fact that she may not have
fully understood the Agreement due to translation issues, “of which
she was aware, does not render void her” consent to the forum
selection clause. Id.
3. Conclusion On Presumption of Enforceability
Plaintiff ultimately fails to carry her heavy burden of
establishing that the presumption of enforceability for this forum

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Civil No. 22-1023 (RAM)

22

selection clause should not apply. She was asked – not forced – to
sign a waiver before participating in an admittedly risky activity.
While the environment was hectic, her deposition testimony reveals
that her decision not to read the Agreement stemmed from her trust
in her brother and the actions of her own niece, not the actions
of the park employees. There is no genuine dispute of material
fact concerning the absence of fraud or unfairness that would bar
the enforcement of this forum selection clause.
VI.

CONCLUSION

For the foregoing reasons, this case is DISMISSED IN ITS
ENTIRETY WITHOUT PREJUDICE. Plaintiff may refile this action in
the court specified in the forum selection clause. Judgment shall
be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 18th day of January 2023.
S/RAÚL M. ARIAS-MARXUACH_________
UNITED STATES DISTRICT JUDGE