Opinion
Civ. No. 99-1706, SECTION "G".
February 18, 2000.
MEMORANDUM AND ORDER
Background
Defendant Class Travel Worldwide, L.L.C. ("Class Travel") moves to transfer this matter, pursuant to § 1404(a), to the United States District Court for the Central District of California. On defendant's motion, I must determine whether the forum selection clause in a contract entered between plaintiff and Class Travel is enforceable.
Plaintiff Michael Rodriguez, a resident of Slidell, Louisiana, is eighteen years old and suffered a serious injury on his senior trip to Cancun, Mexico that permanently deprived him of the use of his legs and arms. The June 1998 trip, referred to as "Grad Trip 1998 Cancun," was planned, advertised, sponsored and conducted by Class Travel, a California-based tour operator.
In the months leading up to the trip, several items were forwarded to the potential participants. In order to participate in the event, individuals were required to review and sign a Class Travel Registration form. In a section of that form entitled "INFORMATION AND CONDITIONS," the following clause appears in the final paragraph:
See Defendant's Exhibit A.
You agree that any litigation regarding the interpretation, breach or enforcement of this agreement shall be filed and heard by state or federal courts in Los Angeles, California and you hereby submit to the personal jurisdiction of such court and waive any objection based on forum non conveniens and venue.
On December 10, 1997, Michael Rodriguez and his mother, Karen Rodriguez, signed the reservation box that was part of this form.
See Defendant's Exhibit B.
On or before January 27, 1998, Karen Rodriguez was provided with a Class Travel confirmation package form. It contained the same forum selection clause as a condition of the contract. Karen Rodriguez signed the form as the parent/guardian of Michael Rodriguez.
See Defendant's Exhibits C and D.
See Id.
Id.
On June 4, 1998, Michael Rodriguez, accompanied by his mother, traveled to Cancun, Mexico for Grad Trip 1998. Employees of Class Travel also accompanied the recent graduates, and were to be on hand throughout the event. During the trip, while standing next to the swimming pool at the Mexhotel Resort, Michael was playfully shoved into the hotel pool by a friend, and suffered the tragic injuries that prompted this lawsuit.
On June 2, 1999, Michael Rodriguez and his parents filed this civil action here pursuant to the court's diversity of citizenship jurisdiction. Those named as defendants include Class Travel and various Mexican entities and individuals; to date, however, only Class Travel has been served with the lawsuit. Plaintiffs allege that Class Travel is liable for the injuries sustained by Michael Rodriguez due to its (1) knowing or negligent misrepresentations in the promotion, advertising and/or solicitation for the trip, in violation of the Louisiana Unfair Trade Practices and Consumer Protection Law, La.Rev.Stat. 51:1401 et seq; (2) negligence in permitting and/or fostering a "hedonistic" atmosphere, including the illegal and excessive alcohol consumption by the graduates, many of whom were minors; and (3) negligence in placing the graduates at a hotel that had substandard and dangerous conditions, particularly in the pool area.
Before me now is defendant's motion to transfer based on the forum selection clause. Plaintiffs oppose the motion on grounds that the clause is unenforceable. In the alternative, plaintiffs ask that if I grant the motion, I dismiss the action, as opposed to transferring it. Plaintffs indicate that dismissal will work no prejudice to them insofar as, out of an abundance of caution, plaintiffs already filed a parallel action in California state court. Analysis
See Plaintiffs' Exhibit IV.
Forum selection clauses are presumed valid and are enforceable absent a strong showing by the party opposing the clause that enforcement would be unreasonable or unjust or that the clause is invalid due to fraud or overreaching. The Supreme Court has recognized four circumstances that may overcome the prima facie validity of forum selection clauses: (1) transfer would contravene a strong public policy of the forum; (2) the forum selection clause is fundamentally unfair; (3) the forum selection clause was a product of fraud or overreaching; or (4) litigation in the designated forum would be so gravely difficult and inconvenient that for all practical purposes the party would be deprived of his day in court.
See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 591-94, 111 S.Ct. 1522, 1525-28 (1991); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-19, 92 S.Ct. 1907 (1972).
See Id.
As an initial matter, I note that plaintiffs' arguments against enforcement of the forum selection clause in this case are urged within the framework of the foregoing principles. Yet, throughout plaintiffs' opposition, there is at least the suggestion that these principles should not apply to a personal injury action brought under state law and filed in federal court pursuant to the court's diversity of citizenship jurisdiction. I reject this argument. The principles set forth above, though established in cases in which the court sat in admiralty, have not been restricted to admiralty cases. The circumstances overcoming the prima facie validity of forum selection clauses, as expressed in The Bremen and Shute, amply protect plaintiffs pursuing personal injury actions in federal court, and plaintiffs here have sufficiently framed their arguments according to the principles set forth in those cases to allow me to rule on defendant's motion.
See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449 (1974); Haynsworth v. The Corporation, 121 F.3d 956, 962 (5th Cir. 1997); Seattle-First National Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990); In re Fireman's Fund Ins. Co., 588 F.2d 93, 95 (5th Cir. 1979).
Plaintiffs argue that the Class Travel forum selection clause is unenforceable on a number of grounds. First, plaintiffs argue that transfer would contravene a strong public policy of Louisiana. Specifically, plaintiffs argue that by statutory fiat, it is against public policy to enforce forum selection clauses in actions seeking redress for unfair or deceptive business practices. Plaintiffs' cite La.Rev.Stat. 51:1407, which is a subpart of the Louisiana Unfair Trade Practices and Consumer Protection Law.
Section 1407, addressing the right of the Attorney General of the State of Louisiana to bring actions for injunctive relief against prohibited trade practices, provides in pertinent part:
The action may be brought in the district court having civil jurisdiction in any parish in which such person resides, or is domiciled or has his principal place of business, or in any parish in which such person did business, or, with consent of the parties, may be brought in the district court of the parish where the state capitol is located. In the event that such person was located outside of the state, but was soliciting in the state by mail, telephone, or any electronic communication, the action may be brought in the district court having civil jurisdiction in the parish in which the contact was made. It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts. These courts are authorized to issue temporary restraining orders or preliminary and permanent injunctions to restrain and enjoin violations of this Chapter, and such restraining orders or injunctions shall be issued without bond.
See La.R.S. 51:1407 (West Supp. 2000) (emphasis added).
The breadth of the highlighted portion of the statute, although located within the Louisiana Unfair Trade Practices and Consumer Protection Law, suggests that all forum selection clauses contravene Louisiana public policy. Nevertheless, plaintiffs do not urge such an interpretation, but merely rely on the provision to argue that Louisiana public policy prohibits enforcement of a forum selection clause in civil actions seeking redress for deceptive business practices.
For several reasons, I am not persuaded by plaintiffs' proposed interpretation. First, if the highlighted language is to be limited to actions for deceptive trade practices based on its location in that statute, then it should be even more limited than plaintiffs suggest; it should be limited to actions in which the attorney general is seeking to restrain such practices. That is the section in which it appears, and this interpretation makes more sense, i.e. the attorney general should not be limited by the agreement of a citizen and an entity as to where litigation arising out of that entity's trade practices may be brought.
There is also Louisiana authority indicating that the provision is not as broad as it reads. The Louisiana Supreme Court, inLejano v. K.S. Bandak, rejected the argument that the highlighted language invalidates forum selection clauses as they relate to maritime law causes of action, and enforced a forum selection clause contained in a maritime employment contract. In dicta in that same case, the Court went on to suggest that the Act by which the highlighted language was added to § 1407 "[was] limited in scope to transactions or interactions between out-of-state, professional telephone solicitors and Louisiana residents." While my interpretation is even more restrictive than the Louisiana Supreme Court's (restricting it to actions for injunctive relief brought by the attorney general), even the Lejano dicta does not aid plaintiff. Plaintiffs do not reference any telephone solicitations.
See 705 So.2d 158, 171 (La. 1997).
See Id.
See Id. (noting legislative history underlying Act).
See Id.
Plaintiffs' next argument is that the forum selection clause is unenforceable because it is the product of overreaching. The only facts plaintiffs point to in support of this argument include: Michael Rodriguez's status as a minor at the time of the execution of the various forms on which the forum selection clause appeared; the extremely fine print used to communicate the terms and conditions of the contract; and the failure of anyone from Class Travel to sit down with Michael and his parents to explain the materials provided by Class Travel.
The fact that Michael Rodriguez was a minor when the relevent forms were executed does not automatically suggest overreaching. A minor is not relieved from compliance with the lawful terms of a contract. The circumstances of this case suggest that although Michael Rodriguez was a minor, he was capable of reading and understanding the conditions of the contract, as was his mother, who also executed a form containing as a condition the forum selection clause.
See Igneri v. Carnival Corp., 1996 WL 68536 *3 (E.D.N Y 1996) (citing The Leviathon, 72 F.2d 286 (2nd Cir. 1934); The Finland, 35 F.2d 47 (E.D.N.Y. 1929).
The fineness of the print used in the Class Travel Registration Form, particularly in the "Information and Conditions" section where the forum selection clause is located, is troubling. However, in the later document, the Confirmation Package, the same clause appeared in undeniably legible print, and the form attached to that package was signed by Michael's mother, acknowledging acceptance of the terms and conditions of the package. Plaintiffs cannot avoid the effect of the contractual provisions simply by choosing not to read the contract.
See Diero v. American Airlines, 816 F.2d 1360, 1365 (9th Cir. 1987).
Finally, the failure of a representive of Class Travel to sit down and discuss all the terms of the contract with the Rodriguez family cannot be said to amount to overreaching. As discussed previously, none of the facts of record suggest that Michael or Karen Rodriguez were unable to read and understand the terms of the the contract. Further, had they desired explication or clarification, the forms provided them with a telephone number to contact a Class Travel representative. Plaintiffs do not allege that they sought and were denied information.
See Defendant's Exhibits A and C.
A final argument made by plaintiff is that a "pernicious" reason underlies Class Travel's insistence on a California forum. Plaintiffs point to the "hold harmless" provision contained in the Class Travel "Information and Conditions" sheet, and opine that such a provision might be enforceable under the laws of California.
The contract between the parties does not specify the applicable law, and the issue of choice of law is separate from that of forum. Plaintiffs advance no concrete evidence that the law of California will apply to this dispute should the case in fact be tried there.
Plaintiffs' situation is most unfortunate and there is no doubt that this litigation will prolong their anxiety. Nevertheless, plaintiffs have failed to overcome the prima facie validity of the forum selection clause mandating that litigation arising out of the Class Travel agreement take place in the state or federal courts of Los Angeles, California.
Ordinarily, where a plaintiff has filed suit in a forum other than the one designated in a forum selection clause, the court, upon enforcing the forum selection clause, transfers the action to the appropriate district. The reason for doing so is to preserve plaintiff's action in the event that the applicable statute of limitations might bar refiling of the dismissed action. Here, however, plaintiffs indicate that they have filed a parallel action in California state court, which is one of the options afforded them by the forum selection clause. For this reason, plaintiffs ask that upon enforcement of the forum selection clause, I dismiss, not transfer, the action. Defendant has asserted no objection to this, and I find that, under the circumstances, dismissal is fair and will serve the interests of justice.
Accordingly,
IT IS ORDERED that defendant's motion IS GRANTED and the action IS DISMISSED according to the terms of the parties' contract, which required that any litigation between them be filed in the federal or state courts of Los Angeles, California.
MINUTE ENTRY JUDGE SEAR FEBRUARY 17, 2000