Opinion
EP-05-CV-0230-FM.
August 25, 2005
MEMORANDUM OPINION AND ORDER TRANSFERRING THE CASE TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
On this day, the Court considered Defendant's "Motion to Dismiss Under FED. R. CIV. P. 12(b)(3) and (6), or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2], "Plaintiffs' Response to Defendant's Motion to Dismiss or in the Alternative to Transfer Venue" [Rec. No. 3], and "Carnival's Reply to Plaintiffs' Response to Motion to Dismiss or, in the Alternative, to Transfer" [Rec. No. 4] filed in the above-captioned cause. After carefully reviewing the arguments and authorities, the Court is of the opinion that this case should be TRANSFERRED to the United States District Court for the Southern District of Florida, Miami Division and Defendant's "Motion to Dismiss Under FED. R. CIV. P. 12(b)(3) and (6), or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2] should be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Plaintiffs Bill Wiggins and Alice Wiggins' suit was originally filed in County Court at Law No. 7 in El Paso County, Texas on May 20, 2005. Defendant removed this action to this Court on June 21, 2005 on the basis of admiralty and diversity jurisdiction. The petition asserts damages allegedly sustained by Plaintiffs while they were passengers on a four night cruise, commencing on May 24, 2004 from Port Canaveral, Florida, aboard Defendant Carnival's vessel, the S.S. "Fantasy."
Plaintiffs booked their cruise through C.I. Travel, an independent travel agency located in Virginia. C.I. Travel then made the travel arrangements with Defendant's office in Miami Florida. On May 24, 2004, Plaintiffs' cruise departed from Port Canaveral, Florida and was to sail on a four-day "Bahamas itinerary." Plaintiffs' petition alleges Defendant exposed Plaintiffs to unsanitary and unsafe conditions, failed to address or otherwise warn passengers of the dangers of recent cruise line illnesses and failed to take appropriate action to prevent the illness suffered by Plaintiffs. Plaintiffs further allege "[a]s a result of Defendant's negligence, Plaintiff Alice Wiggins was hospitalized and incurred significant medical expenses. . . . Plaintiff Bill Wiggins suffered from physical injuries, sickness and discomfort as a result of Defendant's negligent conduct." [Rec. No. 1].
Defendant argues that, pursuant to a forum selection clause in Plaintiffs' tickets, venue is proper in the Southern District of Florida, Miami Division. Defendant contends "Plaintiffs were at all times material to their allegations a passenger aboard Carnival's vessel under the terms of the Passenger Ticket Contract" and "prior to the commencement of the cruise, Plaintiffs signed the Boarding Pass . . . stating that they had `received, read and agreed to the Terms/Conditions of this Ticket Contract.'" [Rec. No. 2]. The forum selection clause located in the Passenger Ticket Contract states the following:
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, in and before the Unites [sic] States District Court for the Southern District of Florida in Miami. . . .
[Rec. No. 2]. Defendant further argues that all passengers on Carnival vessels, including the Plaintiffs, receive a passenger ticket and booklet which contains the passenger ticket contract. Plaintiff Bill Wiggins' affidavit states that Plaintiffs received their ticket package 7-14 days before the cruise departed.
II. LAW AND ANALYSIS
A. Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) and/or 1406(a)
Defendant contends that, pursuant to a forum selection clause in the Plaintiffs' tickets, venue is proper in the Southern District of Florida, Miami Division. Defendant moves for a transfer of venue under both section 1404(a) and 1406(a). Under Section 1406(a), in the event the Court determines that venue is improper, either in the wrong district or division, the Court shall dismiss the case or transfer such case to any district or division in which it could have been brought if it is in the interest of justice. 28 U.S.C. § 1406(a). If venue is improper, a district court has broad discretion in determining whether to dismiss or transfer a case in the interest of justice. See Caldwell v. Palmetto State Savs. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987). The analysis of whether or not venue is proper in a judicial district based upon the occurrence of a "substantial part of the events or omissions" does not require the Court "to determine the `best' venue for a cause of action pending before it, but rather must determine only whether or not its venue is proper." See Seariver Maritime Financial Holdings, Inc. v. Pena, 952 F.Supp. 455, 459 (S.D.Tex. 1996).
Section 1404(a) provides: "For 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." 28 U.S.C. § 1404(a). Under this statute, Defendant bears the burden of demonstrating that the Court should transfer the case. See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (requiring defendant to make a showing that the forum sought is more convenient). Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).
In determining whether a transfer of venue to the Southern District of Florida, Miami Division is warranted pursuant to § 1406(a), the Court considers the following factors: the availability and convenience of witnesses and parties; the location of counsel; the location of pertinent books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; the possibility of delay and prejudice if transfer is granted; and the plaintiff's choice of forum. See, e.g., Koehring Co. v. Hyde Constr. Co., 324 F.2d 295, 296-97 (5th Cir. 1963); United Sonics, Inc. v. Shock, 661 F.Supp. 681, 682-83 (W.D.Tex. 1986); Henderson v. AT T Corp., 918 F.Supp. 1059, 1065 (S.D.Tex. 1996); Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D.Tex. 1993); Fletcher v. Southern Pacific Transp. Co., 648 F.Supp. 1400, 1401 (E.D.Tex. 1986); Greiner v. American Motor Sales Corp., 645 F.Supp. 277, 278 (E.D.Tex. 1986). Generally, the plaintiff's choice of forum is entitled to great deference. See Continental Airlines, Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1395-96 (S.D.Tex. 1992). However, when a forum-selection clause purports to govern choice of venue, the Court must address the convenience of the chosen forum given both parties' expressed preference for that venue. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-30 (1988) (holding "The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court's calculus."). Before this Court considers the forum selection clause in its transfer analysis, the Court must first decide whether the forum selection clause in the instant case is reasonable and enforceable.
A forum selection clause is "prima facie valid" and enforceable. Seattle-First National Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990); Int'l Software Systems v. Amplicon, Inc., 77 F.3d 112, 114 (5th Cir. 1996); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589-95 (1991). To overcome the presumption of validity, the party challenging a forum selection clause has a "heavy burden" of establishing that enforcement of the clause would be "unreasonable under the circumstances." International Software Systems, 77 F.3d at 114; Mitsui Company (USA), Inc. v. Mira M/V, 111 F.3d 33, 35 (5th Cir. 1997); see also M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). Courts should find it unreasonable to enforce a forum selection clause that is the product of fraud or overreaching, violates strong public policy, or effectively deprives a party of his day in court. Mitsui, 111 F.3d at 35; M/S Bremen, 407 U.S. at 15-18.
Defendants seek to have this case dismissed, or transferred to the Southern District of Florida, Miami Division, based on improper venue. Defendants contend venue is improper in the Western District of Texas because the terms and conditions of the passenger contract require Plaintiffs' instant action to be litigated before the United States District Court in Florida. Plaintiff alleges that venue is proper before this Court because the 28 U.S.C. § 1404(a) factors weigh in favor of this Court retaining jurisdiction over the lawsuit. Further, Plaintiff argues "the forum selection clause set out in the passenger ticket is not dispositive on the issue of whether this case should be transferred to Florida." [Rec. No. 3]. Specifically, Plaintiffs argue "the primary issue reviewed by courts considering forum selection clauses in passenger cruise line tickets is notice" and they "did not have notice that could be considered sufficient to allow them to reject the forum selection clause." [Rec. No. 3].
In this case, the Court finds Texas is not the proper venue for Plaintiffs' claims. A great number of courts have found the very same forum selection clause in the Passenger Contract ticket at issue in the instant case valid and enforceable. See, e.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); Lemoine v. Carnival Cruise Lines, 854 F.Supp. 447 (E.D.La., 1994); Elliot v. Carnival Cruise Lines, 231 F.Supp.2d 555 (S.D.Tex. 2002); Perez v. Carnival Cruise Lines, 993 F.Supp. 39 (D.P.R. 1998). Specifically, the United States Supreme Court upheld the enforceability of this forum selection clause in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). This Court finds no reason why the Court should not enforce the forum selection clause. Even though Plaintiffs argue they did not have adequate notice of the forum selection clause and it is fundamentally unfair, the position is unsupported by the case law and facts making up this cause of action. In this action based on a cruise to the Bahamas departing from Florida and purchased through a travel agent outside of Texas, Plaintiff has not overcome its heavy burden and shown the clause "unreasonable under the circumstances." See Mitsui, 111 F.3d at 35. Further, the Court is unpersuaded by Plaintiffs' argument that the 1404(a) factors overcome the presumption of the forum selection clause. While the case law differs as to whether 1404(a) or 1406(a) governs this Court's decision whether to give effect to the parties' forum selection clause and transfer this case, the Court realizes Defendant moved to transfer under both statutes. The Court concludes that the forum selection clause in this case is reasonable and enforceable and a transfer to the District Court for the Southern District of Florida is appropriate under both 28 U.S.C. 1404(a) and 1406(a). Accordingly, Defendant's motion to transfer pursuant to 28 U.S.C. 1404(a), or alternatively 1406(a) is GRANTED and this case should be TRANSFERRED to the United States District Court for the Southern District of Florida, Miami Division.
B. Motion to Dismiss for Improper Venue
Defendant moves to dismiss this case for improper venue, pursuant to Federal Rule of Civil Procedure 12(b)(3). Plaintiff argues "because venue is otherwise proper in this Court, 28 U.S.C. § 1404(a) governs the Court's review of Defendant's request for dismissal or transfer. Section 1404(a) allows a transfer, not a dismissal." [Rec. No. 3]. Having found the forum selection clause in Plaintiff's ticket valid and enforceable, the Court retains discretion whether to dismiss or transfer the action under 28 U.S.C. § 1404(a) or 1406(a). After due consideration, the Court finds that the interest of justice is best served by transferring this case to the Southern District of Florida, Miami Division. Accordingly, Defendant's motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3) is DENIED. C. Motion to Dismiss for Failure to State a Claim
Defendant moves for dismissal of Plaintiffs' action for failure to state a claim upon which relief can be granted alleging that the forum selection clause is prima facie valid and should be enforced by this Court unless Plaintiff can clearly show that enforcement would be unreasonable, unjust or that the clause was invalid for reasons as fraud or overreaching. Plaintiffs argue that their petition clearly states a viable cause of action and provides Defendant adequate notice of their claims. Having determined that a transfer of venue is appropriate, this Court will not reach a decision on Defendant's motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6) and leaves the resolution of that issue to the transferee court.
III. CONCLUSIONIT IS THEREFORE ORDERED that Defendant's "Motion to Dismiss Under Fed.R.Civ.P. 12(b)(3) and (6), Or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2] should be and hereby is DENIED to the extent the motion seeks dismissal.
IT IS FURTHER ORDERED that Defendant's "Motion to Dismiss Under Fed.R.Civ.P. 12(b)(3) and (6), Or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2] should be and hereby is GRANTED to the extent it seeks transfer of this case to the United States District Court for the Southern District of Florida, Miami Division.
IT IS FURTHER ORDERED that this matter should be and is hereby TRANSFERRED to the United States District Court for the Southern District of Florida, Miami Division, for further proceedings. The clerk of this Court is requested to take all steps necessary transfer this cause.