Mueller et al v. Apple Leisure Corporation et al

Filing 38

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/20/2016 GRANTING 29 Defendants' Motion to dismiss. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATASHA MUELLER and
SCOTT MUELLER,
Plaintiffs,
-vs-

Case No. 14-C-1369

APPLE LEISURE CORPORATION d/b/a
APPLE LEISURE GROUP, APPLE VACATIONS, LLC,
AM RESORTS, LLC, and AM RESORTS, LP,
Defendants.
DECISION AND ORDER
For their honeymoon, Natasha and Scott Mueller purchased an allinclusive vacation from Apple Vacations to Secrets Resort in Punta Cana,
Dominican Republic. Following the trip, Natasha experienced unexplained
medical issues, including numbness, nausea, fatigue, and pain. Eventually,
her doctors landed on the correct diagnosis: Ciguatera poisoning, “a
foodborne illness caused by eating certain reef fish whose flesh is
contaminated with a toxin made by dinoflagellates such as Gambierdiscus
toxicus which live in tropical and subtropical waters.”1 The Muellers sued
Apple for breach of warranty, negligence, and medical care insurance
benefits. Apple moves to dismiss on a variety of grounds. This motion is
1

https://en.wikipedia.org/wiki/Ciguatera.

granted.
Apple relies on a forum-selection clause which provides that the
“exclusive forum for the litigation of any claim or dispute arising out of or
in any way relating to these terms and conditions or to any injury, damage,
incident or event occurring during the course of your trip shall be the Court
of Common Pleas of Delaware County, Pennsylvania.” This clause was
included in a one-page document appended to the Muellers’ travel vouchers
entitled “Advice to International Passengers on Limitation of Liability.” It
was also included in a one-page document entitled “Fair Trade Contract.”
This latter document is “part of every vacation package compiled by Apple
Vacations and made available to travel agents. It is the travel agent’s
responsibility to ensure that [it] is provided to every customer who
purchases a vacation package compiled by Apple Vacations and sold by a
travel agent.” Affidavit of Julia Davidson, Exhibits A and B.
Apple invokes Federal Rule of Civil Procedure 12(b)(3), which
governs motions to dismiss for “improper venue.” See also 28 U.S.C.
§ 406(a) (discussing procedure for improperly-venued cases). However, a
forum-selection clause “does not render venue in a court ‘wrong’ or
‘improper’ within the meaning of § 1406(a) or Rule 12(b)(3), …” Atl. Marine
Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568,
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579 (2013). Instead, the appropriate way to enforce a forum-selection
clause is through the doctrine of forum non conveniens.
Apple argues that a Rule 12(b)(3) motion is the correct procedure
because venue is improper in this judicial district. See 28 U.S.C. § 1391.
However, in Atl. Marine, the Court repeatedly rejected the argument that
“[a forum-selection] clause may be enforced by a motion to dismiss under
[]§ 1406(a) or Rule 12(b)(3) ….” 134 S. Ct. at 575. Neither the rule nor the
statute applies in this context. See also id. at 580 (“Even if a defendant
could use Rule 12(b)(6) to enforce a forum-selection clause, that would not
change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper
mechanisms to enforce a forum-selection clause and that [28 U.S.C.]
§ 1404(a) and the forum non conveniens doctrine provide appropriate
enforcement mechanisms”) (emphasis added).
Forum non conveniens is codified at § 1404(a), which allows a federal
district court to transfer a 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.” Where, as here, the clause points to a nonfederal
forum, courts apply the residual forum non conveniens doctrine instead of
§ 1404(a). The only difference is procedural; instead of a direct transfer to
another court in the federal system, the case is dismissed and (presumably)
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re-filed in the correct forum. “[B]ecause both § 1404(a) and the forum non
conveniens doctrine from which it derives entail the same balancing-ofinterests standard, courts should evaluate a forum-selection clause
pointing to a nonfederal forum in the same way that they evaluate a
forum-selection clause pointing to a federal forum.” Atl. Marine at 580.
Ultimately, and “in all but the most exceptional cases,” this analysis
results in the forum-selection clause being enforced. Id. at 581 (quoting
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring)).
When parties have contracted in advance to litigate disputes
in a particular forum, courts should not unnecessarily disrupt
the parties’ settled expectations. A forum-selection clause,
after all, may have figured centrally in the parties’
negotiations and may have affected how they set monetary
and other contractual terms; it may, in fact, have been a
critical factor in their agreement to do business together in the
first place. In all but the most unusual cases, therefore, ‘the
interest of justice’ is served by holding parties to their bargain.
Id. at 583 (emphasis added). This is not an unusual or exceptional case.
The Muellers assert that it is “extremely unlikely” that a forum selection
clause in an attachment to a consumer contract is enforceable. Yet in
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), the Court held
that “even a forum selection clause in a commercial passage contract – that
is, a ticket for a cruise — was enforceable.” Muzumdar v. Wellness Int’l
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Network, Ltd., 438 F.3d 759, 762 (7th Cir. 2006). The context of the
Muellers’ transaction — purchasing a vacation package through a travel
agent — is materially indistinguishable. Absent “fraud, undue influence, or
overweening bargaining power,” the clause must be enforced. M/S Bremen
v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972).
Moreover, when parties “agree to a forum-selection clause, they
waive the right to challenge the preselected forum as inconvenient or less
convenient for themselves or their witnesses, or for their pursuit of the
litigation.” Atl. Marine at 582. As a result, the Court can only consider
arguments about public-interest factors. Id. Aside from obliquely referring
to the clause as likely unenforceable, the Muellers did not pursue this or
any other line of argument. Instead, the Muellers faulted Apple for raising
the forum-selection issue under the wrong rule/statute, as discussed above,
and left it at that. This was a mistake, especially because the Muellers
bear the burden of “establishing that transfer to the forum for which the
parties bargained is unwarranted.” Id. at 581. In any event, this is not an
“unusual case” that justifies refusal to transfer “notwithstanding the
counterweight of a forum-selection clause.” Id. at 582 (quoting Stewart, 487
U.S. at 30-31). For example, one public interest factor is “the interest in
having the trial of a diversity case in a forum that is at home with the law
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that must govern the action.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241
n.6 (1981). But when a transfer stems from enforcement of a forumselection clause, the court in the “contractually selected venue should not
apply the law of the transferor venue to which the parties waived their
right.” Atl. Marine at 583 (emphasis added). Since Wisconsin law will not
follow this case to Pennsylvania, the public interest does not favor its
retention.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT Apple’s motion to dismiss [ECF No. 29],
construed as a forum non conveniens motion, is GRANTED. The Clerk of
Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of June, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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