Torts — Hotels — Slip and fall — Hotel guests filed negligence action against owners and operators of hotel alleging that plaintiff suffered personal injuries when he slipped and fell on a sidewalk and that his wife suffered loss of consortium — District court did not err in granting defendants’ motion to dismiss on basis of a valid forum selection clause contained in registration agreement

26
Fla. L. Weekly Fed. C1064a
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Torts
— Hotels — Slip and fall — Hotel guests filed negligence action against
owners and operators of hotel alleging that plaintiff suffered personal
injuries when he slipped and fell on a sidewalk and that his wife suffered loss
of consortium — District court did not err in granting defendants’ motion to
dismiss on basis of a valid forum selection clause contained in registration
agreement where plaintiffs cannot demonstrate that inclusion of forum selection
clause was the product of fraud or coercion — Because the parties did not
negotiate the forum selection clause, the court must determine whether there
was fraud or overreaching in its formation by looking to whether the clause was
reasonably communicated to the consumer — Applying the two-part test of
reasonable communicativeness, the court found that physical characteristics of
registration form signed by plaintiffs were adequate and record demonstrates
that plaintiffs had the ability to become meaningfully informed of clause and
to reject its terms — Where record demonstrates that plaintiffs first received
notice of forum selection clause via email confirmation of their reservation
and received notice for a second time when they registered at hotel, forum
selection clause was valid and enforceable

JAMES
FEGGESTAD, KAREN FEGGESTAD, his wife, Plaintiffs-Appellants, v. KERZNER
INTERNATIONAL BAHAMAS LIMITED, a Bahamian company, KERZNER INTERNATIONAL
LIMITED, a Bahamian company, ISLAND HOTEL COMPANY LIMITED, a Bahamian company,
PARADISE ISLAND LIMITED, a Bahamian company, BROOKFIELD ASSET MANAGEMENT INC.,
a Canadian company, Defendants-Appellees. 11th Circuit. Case No. 15-11773.
December 13, 2016. Appeal from the U.S. District Court for the Southern
District of Florida (No. 1:14-cv-24399-JLK).

(Before
MARCUS and DUBINA, Circuit Judges, and GOLDBERG,* Judge.)

(DUBINA,
Circuit Judge.) Plaintiffs/Appellants, James and Karen Feggestad (the
“Feggestads”), appeal the district court’s order dismissing their complaint
against defendants/appellees, Kerzner International Bahamas Limited, Kerzner
International Limited, Island Hotel Company Limited, Paradise Island Limited,
and Brookfield Asset Management Inc. (referred to collectively as “Kerzner”),
on the basis of a valid forum selection clause. After reviewing the record,
reading the parties briefs and having the benefit of oral argument, we affirm
the district court’s judgment of dismissal.

I.
BACKGROUND

A. Facts

The
Feggestads made reservations at the Atlantis Resort on Paradise Island, Bahamas
(“Atlantis”) and received a reservation confirmation via their email address.
The confirmation contained a section titled “Terms and Conditions” and included
a hyperlink advising guests to view the other terms and conditions at
http://www.atlantis.com/reservations/TermsAndConditions.aspx. This link
provided advance notification that any dispute between the guest and the hotel
or any affiliated company must be litigated exclusively in the Bahamas and that
upon arrival at the Atlantis, the guest would be required to sign a
registration form that included a Bahamian forum selection clause. When the
Feggestads checked into the Atlantis, the resort representative asked them to
sign a registration card. When Mr. Feggestad asked why, the representative
explained that it was necessary for the guests to charge incidentals to their
hotel bill. The registration card had a written agreement on the back titled
“ACKNOWLEDGEMENT, AGREEMENT AND RELEASE — READ BEFORE SIGNING.” The eight (8)
paragraph agreement stated, in pertinent part, that “I agree that any claims I
may have against the Resort Parties resulting from any events occurring in The
Bahamas shall be governed by and constructed in accordance with the laws of the
Commonwealth of The Bahamas, and further, I irrevocably agree to the Supreme
Court of The Bahamas as the exclusive venue for any such proceedings
whatsoever.” (R. DE 13-3.) Mr. Feggestad signed the agreement. Subsequently,
several days after their arrival at the Atlantis, Mr. Feggestad slipped and
fell on a wet sidewalk and sustained severe personal injuries.

B. Procedural
History

In
November 2014, the Feggestads filed a complaint in the United States District
Court for the Southern District of Florida alleging negligence against the
owners and operators of the Atlantis. Specifically, the complaint alleged that
James Feggestad suffered personal injuries when he slipped and fell on a
sidewalk at the Atlantis and that his wife Karen suffered loss of consortium.
Kerzner filed a motion to dismiss based on the forum selection clause contained
in the registration agreement and based on the doctrine of forum non
conveniens
. In their reply to Kerzner’s motion, the Feggestads submitted
their affidavits and affidavits of their traveling companions, stating that the
front desk personnel at the Atlantis misrepresented the purpose of their
signature on the registration card. The district court granted Kerzner’s motion
on the basis of the valid forum selection clause, and the Feggestads then
perfected this appeal.

II.
ISSUE

Whether
the district court erred in granting Kerzner’s motion to dismiss on the basis
of a valid forum selection clause.

III.
STANDARDS OF REVIEW

This
court reviews de novo the enforceability of a forum selection clause. Krenkel
v. Kerzner Int’l Hotels Ltd
., 579 F.3d 1279, 1281 (11th Cir. 2009) [22 Fla.
L. Weekly Fed. C103a].

We
review a district court’s ruling on a motion to dismiss for forum non
conveniens
for a clear abuse of discretion only. Aldana v. Del Monte
Fresh Produce N.A.
, 578 F.3d 1283, 1288 (11th Cir. 2009) [22 Fla. L. Weekly
Fed. C52b]. As long as the district court considered all relevant factors, and
its balancing of the factors was reasonable, we will give substantial deference
to the district court’s decision. Piper Aircraft Co. v. Reyno, 454 U.S.
235, 257, 102 S. Ct. 252, 266 (1981).

IV.
ANALYSIS

“Forum
selection clauses are presumptively valid and enforceable unless the plaintiff
makes a ‘strong showing’ that enforcement would be unfair or unreasonable under
the circumstances.” Krenkel, 579 F.3d at 1281. A forum selection clause
will be invalidated if (1) its formation was induced by fraud or overreaching;
(2) the plaintiff would be deprived of his day in court because of
inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of
a remedy; or (4) enforcement of the clause would contravene public policy. Lipcon
v. Underwriters at Lloyd’s, London
, 148 F.3d 1285, 1296 (11th Cir. 1998).
When the parties do not negotiate the forum selection clause, as was the case
here, this court determines whether there was fraud or overreaching in its
formation by looking to “whether the clause was reasonably communicated to the
consumer.” Krenkel, 579 F.3d at 1281. “A useful two-part test of
‘reasonable communicativeness’ takes into account the clause’s physical
characteristics and whether the plaintiffs had the ability to become
meaningfully informed of the clause and to reject its terms.” Id.

The
Feggestads did not take issue with the physical characteristics of the
registration form they signed,1 and this court has already found this
particular agreement’s physical characteristics adequate under the “reasonable
communicativeness” test. See Krenkel, 579 F.3d at 1281 (finding same
forum selection clause presumptively valid). Therefore, this court need not
consider this prong of the “reasonable communicativeness” test.

We
conclude from the record that the second prong of the test is also satisfied
here. The Feggestads contend that they were prevented from meaningfully reviewing
and understanding the agreement they signed upon check-in by the
misrepresentation of the resort personnel and the haste with which the
personnel were checking-in guests. However, we conclude that neither of these
assertions satisfies their burden under the “reasonable communicativeness”
test.

The
record demonstrates that the Feggestads first received notice of the forum
selection clause via the email confirmation of their reservation. Even though
the clause was contained in a hyperlink in the body of the email, there was
nothing that prevented them from clicking on the link to read the terms and
conditions that would apply to their stay at the Atlantis. The Feggestads
actually stated that they did not try to access the hyperlink. Thus, because
they cannot demonstrate how they were prevented from reading the terms and
conditions, this email provided sufficient notice of the forum selection
clause. See e.g., Starkey v. G Adventures, Inc., 796 F.3d 193,
197-98 (2d Cir. 2015) (finding that a hyperlink sent via email linking to the
terms and conditions of a vacation tour constituted reasonable communication of
a forum selection clause contained in the terms and conditions); Vanderham
v. Kerzner Int’l Bahamas Ltd., et al.
, No. 13-24147-civ, 2014 WL 4285271,
at *2 (S.D. Fla. Aug. 29, 2014) (ruling that the forum selection clause was
enforceable because Kerzner sent plaintiffs a confirmation of registration
email that contained the terms and conditions including the forum selection
clause) (identical facts to present case).

We
also conclude from the record that the Feggestads received notice for a second
time when they registered at the Atlantis. They claim that the reservation
personnel impeded their ability to read, fully understand, and reject the terms
of the forum selection clause because she told them that their signature on the
registration card was necessary to charge incidentals to their room. This
assertion, with no evidence that the resort personnel impeded or prevented them
from reading the agreement, is insufficient. See Allied Van Lines, Inc. v.
Bratton
, 351 So.2d 344, 347-48 (Fla. 1977) (“Unless one can show facts and
circumstances to demonstrate that he was prevented from reading the contract,
or that he was induced by statements of the other party to refrain from reading
the contract, it is binding.”). Moreover, the reservation personnel’s statement
to the Feggestads was true. The Feggestads cannot enter into a contract that is
presented to them in plain language via two mediums and then claim that they
have been deceived. See e.g., Krenkel, 579 F.3d at 1282
(rejecting Krenkels’ contention that the front desk personnel impeded their
understanding of the terms of the forum selection clause). In the present case,
the Feggestads cannot demonstrate that the inclusion of the forum selection
clause was the product of fraud or coercion.2

In
conclusion, we hold that the district court properly found the forum selection
clause valid and enforceable under the circumstances of this case.3

AFFIRMED.

__________________

*Honorable
Richard W. Goldberg, Judge of the United States Court of International Trade,
sitting by designation.

1Kerzner
notes that the Feggestads, for the first time on appeal, attempt to challenge
the physical characteristics of the email and website containing the forum
selection clause. This court has long held that it will not consider issues
raised for the first time on appeal. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C1064a].
Furthermore, the Feggestads concede that they never visited the Atlantis
website and that they did not read the Terms and Conditions before filing their
lawsuit. Moreover, all of their arguments to satisfy this prong of the
“reasonable communicativeness” test are baseless.

2The
Feggestads also fault the district court for ignoring the fact that they had
never visited the Atlantis before. They argue, citing to district court cases,
that a plaintiff must have the opportunity to reject a forum selection clause
“with impunity.” While there is some language in the dissenting opinion in Shute
to support such a stringent requirement, see Carnival Cruise Lines,
Inc., v. Shute
, 499 U.S. 585, 597, 111 S. Ct. 1522, 1529 (Stevens, J.
dissenting), the binding precedent set out in Krenkel does not provide
that a plaintiff can reject a forum selection clause “with impunity.” Moreover,
reversal here would make sense only if we required the district court to have
made a finding that rejection “with impunity” was possible, because the
district court plainly found that the Feggestads had the opportunity to reject
the agreement.

3Additionally,
the Feggestads have not demonstrated inconvenience or unfairness, that the
chosen law would deprive them of a remedy, or that enforcement of the forum
selection clause would contravene public policy. See Lipcon, 148 F.3d at
1296.

* * *