Literature CASE ASSIGNMENT

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO: 12-CV-22184-MORENO

AMY HOWARD, and KENNETH HOWARD, her husband Plaintiffs, v. KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company, ISLAND HOTEL COMPANY LIMITED, a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company. Defendants. ________________________________________/

DEFENDANTS’ MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW

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Defendants, Kerzner International Limited, Kerzner International Bahamas Limited,

Island Hotel Company Limited, and Paradise Island Limited (collectively “Defendants”), hereby

move to dismiss the Complaint filed by Plaintiffs, Amy Howard and Kenneth Howard

(collectively “Plaintiffs”). In support, the Defendants state as follows:1

I. Introduction

The Complaint alleges Amy Howard suffered personal injuries as a result of eating fish

with ciguatoxins while eating at a restaurant at the Atlantis Resort on Paradise Island, The

Bahamas.2 The Complaint further alleges as a result of Amy Howard’s injuries, her husband

Kenneth Howard has suffered the diminishment of his wife’s companionship, society and

consortium. Plaintiffs, citizens and residents of North Carolina, have filed what purports to be a

four count Complaint against Defendants in the Southern District of Florida.3 The Complaint

should be dismissed for several reasons. First, Plaintiffs were guests at the Atlantis Resort in The

Bahamas at the time of the incident and were subject to a contractual agreement that any claims

arising from their stay in The Bahamas would be brought, if at all, exclusively before a court

located in The Bahamas. Second, this case should be dismissed pursuant to the doctrine of forum

non conveniens. The Bahamas is the more convenient and appropriate forum for resolution of

this dispute which has no factual connection to Florida. Third, the Complaint fails to specify

which facts are supportive of which causes of action. Fourth, the Loss of Consortium claim fails

1 Defendants note that Plaintiffs factual allegations regarding operations, corporate structure and the running of the Atlantis Resort are not correct. That being said, the factual inaccuracies are not germane to this Motion. 2 Ciguatoxins are natural toxins sometimes found in tropical fish. Ciguatoxins do not effect the fish or other wildlife in the food chain but cause symptoms similar to food poisoning in humans. Unfortunately, it is impossible to detect or determine whether a particular fish may have ciguatoxins, there is no commercially available test to determine whether a particular fish has ciguatoxins, and ciguatoxins cannot be eliminated by cooking. 3 Count II is a claim of Negligence against Mesa Grill. By stipulation of the parties, Mesa Grill has been dismissed from this lawsuit without prejudice. See Stipulation Of Dismissal Of Bobby Flay’s Mesa Grill Bahamas (DE 11); see also Final Order Of Dismissal as to Defendant Bobby Flay’s Mesa Grill Bahamas (DE 12).

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to comply with the pleading standards set forth by the Supreme Court in Twombly and Iqbal.

Finally, the purported Damages claim fails to state a legally cognizable cause of action.

MEMORANDUM OF LAW II. Plaintiffs are bound by a written agreement containing a valid forum selection clause requiring this dispute be heard exclusively in The Bahamas

On June 18, 2009, upon checking in at the Atlantis Resort, both Amy Howard and Ken

Howard signed an agreement entitled “Acknowledgment, Agreement and Release,” that reads, in

pertinent part:

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 such proceedings whatsoever. . . .

See Declaration of Giselle Pyfrom (with Exhibit), attached hereto as Exhibit 1. Under federal law, forum selection clauses are presumed to be valid. M/S Bremen v.

Zapata Off-Shore Co., 407 U.S. 1, 15 (1972); Lipcon v. Underwriters at Lloyd’s London, 148

F.3d 1285 (11th Cir. 1998). Enforcement will be ordered unless it clearly would be

“unreasonable and unjust, or the clause was invalid for such reasons as fraud or over-reaching.”

Bremen, 407 U.S. at 15; Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 591 (1991); Manetti-

Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 512 (9th Cir. 1988). A forum-selection clause is

unreasonable only if it is obtained by fraud, undue influence, overweening bargaining power, or

such serious inconvenience in litigating in the selected forum as to actually deprive that party of

a meaningful day in Court. Bremen, 407 U.S. at 12–18. The party seeking to avoid the forum-

selection clause “bear[s] a heavy burden of proof.” Id. at 17. Plaintiffs cannot meet their “heavy

burden of proof” that the forum selection they signed was unreasonable or unfair.

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Not only did both Amy Howard and Ken Howard sign the Acknowledgment, Agreement

and Release form thereby agreeing to the forum selection clause, but Amy Howard knew she

would be required to sign an Acknowledgment, Agreement and Release or similar form upon

checking into Atlantis because she has stayed at Atlantis Resort previously. See Ex. 1; see also

Krenkel v. Kerzner Int’l Hotels Ltd., et al., 579 F.3d 1279 (11th Cir. 2009);4 Miyoung Son v.

Kerzner Int’l Resorts, Inc., et al., 2008 WL 4186979, *4-5 (S.D. Fla. Sept. 5, 2008)(holding that

it was not unreasonable for the plaintiffs to be expected to be asked to sign an agreement

including a forum selection clause because they had visited Atlantis Resort a few years earlier

and signed a forum selection clause on the previous visit);5 Horberg v. Kerzner Int’l Hotels,

Ltd., et al., 2007 WL 7274825, *3 (S.D. Fla. Jan. 31, 2007)(forum selection clause enforceable

because plaintiffs had visited Atlantis in the past and would have signed similar guest

registration cards containing the forum selection clauses during their previous visit); Giordano v.

Sun Int’l North America, Inc., No. 98-7456-civ-Dimitrouleas, (S.D. Fla. Sept. 30, 1999). The

clauses Krenkel, Miyoung Son, Horberg and Giordano are similar to the one at issue here. 6

Moreover, in addition to being on notice of the clause as a result of her previous stay at

4 In Krenkel, the Eleventh Circuit upheld the enforcement of a personal injury case by a New Jersey Plaintiff against defendants on the grounds that the forum selection clause at issue in that case was valid and enforceable. Notably, the forum selection clause was identical to that herein. The Court reasoned that the clause was reasonably communicated to the Plaintiffs, was neither hidden nor ambiguous, in plain language, and Plaintiffs were not induced to sign by means of fraud or overreaching. 579 F.3d at 1281. Moreover, the Court found that Plaintiffs had not “demonstrated inconvenience or unfairness, that [The Bahamas] would deprive them of a remedy or that enforcement…would deprive them of a remedy.” Id. at 1282. 5 In Miyoung Son, the Court found the forum selection clause (similar to the one at issue here) was enforceable. The Court dismissed the claims of the plaintiffs, Maryland residents, that arose out of an alleged boating accident in The Bahamas while they were guests at the Atlantis. See id. at *7. 6 Defendants are aware this Court affirmed and adopted Magistrate Judge Torres’ Report and Recommendation in Larsen v. Kerzner Int’l Hotels Ltd., et al., No. 08-22031-CIV-MORENO, 2009 WL 175985 (S.D. Fla. June 19, 2009). Judge Torres recommended the Motion to Dismiss on a forum selection ground be denied. However, Larsen is distinguishable from the facts in this case. In Larsen, the adult plaintiff did not live with her parents who made the booking – the plaintiff lived in Oklahoma while her parents lived in Colorado. The emails regarding the terms and conditions were sent to the parents in Colorado, not to the plaintiff in Oklahoma. Further, the plaintiff had never been to Atlantis Resort so she was unfamiliar with the check in procedures. None of these are the situation here.

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Atlantis, Plaintiffs either personally or through their designated travel agent would have received

Email confirmation of Plaintiffs reservations prior to their arrival in The Bahamas. See Ex. 1.

All Email receipts issued by Atlantis include an Internet link directing Plaintiffs to click on the

link to view the terms and conditions that govern their stay. Those terms and conditions include

the same forum selection clause as was contained in the form Plaintiffs signed (requiring this

dispute be heard exclusively in The Bahamas). See Ex. 1. A forum selection clause is binding on

a plaintiff when received by email. See Miyoung Son, 2008 WL 4186979, at *5 (ruling that

forum selection clause was enforceable because the Kerzner Defendants sent plaintiffs emails

containing the forum selection clause shortly after the trip was booked); see also Kohanim v.

Kerzner Int’l Hotels Ltd., Case No.: CV 10-4792, at *4 CAS (JEMx) (C.D. Cal. Jan. 5,

2011)(ruling that the terms of a contract are enforceable when notice of those terms are emailed

to an address given by the plaintiff or their booking representative when reservations are made –

even if the email address turns out to be wrong and is not the address of Plaintiff)(Order attached

hereto as Exhibit 2). For these reasons Plaintiffs cannot demonstrate why this forum selection

clause, one the Eleventh Circuit has declared valid, should not be enforced. Accordingly, this

case should be dismissed.

III. Plaintiff’s Complaint should also be dismissed under the doctrine of forum non conveniens In addition to the contractual forum selection defense, this case should be dismissed

pursuant to the doctrine of forum non conveniens. The Bahamas is the more convenient and

appropriate forum for resolution of this dispute which has no factual connection to Florida.

Under the doctrine of forum non conveniens, this Court has the power to dismiss the case where

as here, an adequate and alternate forum exists. C.A. La Seguridad v. Transytur Line, 707 F.2d

1304, 1307 (11th Cir.1983)(“District Court has inherent power to decline to exercise jurisdiction

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over a case when an adequate, alternative forum is available”). As set forth by the Eleventh

Circuit, dismissal is warranted where the defendant has demonstrated that (a) an adequate

alternative forum is available, (b) the private and public interest factors weigh in favor of

dismissal, and (c) the plaintiff can reinstate the lawsuit in the alternative forum without undue

inconvenience or prejudice. See id; see also Leon v. Million Air, Inc., 251 F.3d 1305, 1311 (11th

Cir. 2001).

A. The Bahamas where this alleged incident occurred is an adequate alternative forum The first step in the forum non conveniens analysis is to determine “whether an adequate

alternative forum exists .…” La Seguridad, 707 F.2d at 1307. This inquiry has two parts – both

the availability and the adequacy of the proposed alternative forum. Leon, 251 F.3d at 1311.

Both parts of the inquiry are satisfied here.

First, a defendant can demonstrate an available forum by showing that it is amenable to

service of process in that forum, or alternatively, by consenting to the jurisdiction of the

alternative forum. See e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 242 (1981); La

Seguridad, 707 F.2d at 1305 n.1. In this lawsuit the Defendants are Bahamian corporations. See

Complaint, at ¶¶ 6-18. As Bahamian corporations they are amenable to service of process in The

Bahamas. Further, Defendants hereby consent to jurisdiction in The Bahamas. Accordingly,

Defendants have satisfied the availability inquiry.

Second, an alternative forum will be considered adequate so long as it could provide

some relief for the plaintiffs’ claims, even if “the substantive law that would be applied in the

alternative forum is less favorable to the plaintiffs than that of the present forum.” Piper Aircraft,

454 U.S. at 247. Here, the Bahamian legal system is patterned after England’s legal system. The

Bahamian legal system recognizes negligence actions for personal injury. See Morrone v. Sun

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Intern. Hotels Ltd., Case No. 05-61600-Civ-Seitz/McAliley, at *5 (S.D. Fla. Sept. 22,

2006)(“Bahamian law is patterned after English common law and it recognizes action based on

common law negligence”). Accordingly, The Bahamas is an adequate alternative forum.

This comports with courts in the Southern District that have analyzed the issue and ruled

that The Bahamas is an adequate alternative forum. See McGinn v. Kerzner Intern. Hotels Ltd.,

Case No.: 12-cv-20536-Moore, at *5 (S.D. Fla. October 22, 2012)(noting Southern District

Courts “consistently” hold that The Bahamas provides an adequate alternative forum);7 Horberg

v. Kerzner Intern. Hotels Ltd., 744 F.Supp.2d 1284, 1290-91 (S.D. Fla. 2007)(“It is undisputed

that Defendants are amenable to process in The Bahamas … this Court has no reason to find

other than that The Bahamas provides Plaintiff with an adequate alternative forum….”);

Miyoung Son v. Kerzner Intern. Hotels Ltd., 2008 WL 4186979 (S.D. Fla. Sept. 5, 2008)(“[T]he

Court finds that the Supreme Court of The Bahamas is an adequate alternative forum for the

instant action”); Morrone, Case No. 05-61600-Civ-Seitz/McAliley, at *5 (“[T]he Court finds The

Bahamas to be an available and adequate alternative forum ….”); Foster v. Sun Intern. Hotels

Ltd., 2002 WL 34576251 (S.D. Fla. Feb. 5, 2002)(same); Morse v. Sun Intern. Hotels Ltd., 2001

WL 34874967 (S.D. Fla. Feb. 26, 2001)(same); Chierchia v. Treasure Cay Services, 738 F.

Supp. 1386, 1388 (S.D. Fla. 1990)(same). Accordingly, Defendants have satisfied the availability

and adequacy inquiry, thus the first part of the forum non conveniens analysis has been

established. The Bahamas is an adequate alternative forum.

B. The private and public interest factors weigh heavily in favor of dismissal Once an adequate alternative forum has been established, courts then consider the

relevant private and public interest factors to determine whether dismissal is appropriate. Piper

7 The McGinn plaintiffs recently filed an appeal of Judge Moore’s Order granting the Motion to Dismiss on forum non conveniens grounds.

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Aircraft Co., 454 U.S. at 257. If the Court finds the private factors favor dismissal, the Court

then determines whether or not factors of public interest tip the balance in favor of a trial in a

foreign forum. La Seguridad, 707 F.2d at 1307 (citation omitted); see also Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 508-09 (1947)(discussing the private and public interest factors to be

considered). Here, both the private and public interest factors weigh heavily in favor of

dismissal.

(1) Private factors weigh in favor of dismissal

The private factors to be considered in a forum non conveniens analysis include: (a) the

relative ease of access to proof; (b) the availability of compulsory process of willing and

unwilling witnesses; (c) the costs of obtaining attendance of willing witnesses; (d) the ability to

view the premises; (e) all other practical problems that make trial of a case easy, expeditious and

inexpensive. Gulf Oil Corp., 330 U.S. at 508.8

(a) The vast majority of evidence is in The Bahamas The following physical evidence and documents bearing on liability and damages issues

are in The Bahamas and outside the subpoena power of the Court:

1. Accident Scene: Plaintiffs claim Amy Howard suffered personal injuries as a result of eating fish while staying at the Atlantis Resort on Paradise Island, Bahamas. Expert witnesses on liability would all need to travel to The Bahamas and then to Florida to testify whereas if this matter were tried in The Bahamas, local experts could do their

8 Although a U.S. plaintiff’s choice of forum is entitled to deference, it is entitled to less deference where, as here, the plaintiffs are not residents of the chosen forum. See Iragorri v. United Technologies, Corp., 274 F.3d 65 (2d Cir. 2001)(ruling that a district court may afford different degrees of deference to a U.S. plaintiff’s choice of forum that is different for the one in which the plaintiff resides); Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088 (9th Cir. 1998)(holding that a U.S. plaintiff’s choice of forum outside of his residence might be entitled to less deference); Chierchia, 738 F. Supp. at 1388 (“Plaintiff, however has no personal connection to this forum, and therefore her choice of forum is entitled to slightly less deference than would otherwise be the case”). Here, Plaintiffs choice of forum should be given less deference because they are not residents of Florida. A U.S. citizen has no absolute right to sue in a U.S. court. Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066 (1985). “A citizen’s forum choice should not be given dispositive weight .... [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Piper Aircraft, 454 U.S. at 256 n. 23. As Circuit Courts have observed: “The presence of American plaintiffs [ ] is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens.” Cheng v. Boeing, 708 F.2d 1406, 1411 (9th Cir. 1983).

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investigation and testify saving both sides considerable money. Both the fishery where the fish were obtained, the facilities where the fish were stored, and the restaurant kitchen where the fish were prepared are all located in The Bahamas.

2. Records regarding fish purchases: Documents regarding the ordering of fish would be

kept in The Bahamas.

3. Documents Regarding Health Inspections: The health inspections for the restaurant where Amy Howard claims to have gotten food poisoning would be in The Bahamas as would any records of those inspections.

4. Medical Records in The Bahamas: Amy Howard received medical treatment at

Doctors Hospital in The Bahamas after the alleged incident. Records of her treatment would be located in The Bahamas.

5. Records from Bahamian Doctors who treated Amy Howard: Documents regarding

Amy Howard’s medical treatment in The Bahamas by individual phyisicans would likely be in the possession of those Physicians located in The Bahamas.

6. EMS/Ambulance Records: Documents regarding Amy Howard’s transportation to

Doctors Hospital. Simply put, the overwhelming volume of documentary evidence are located in The

Bahamas. The private interest factor involving access to evidence weights in favor of dismissal.

(b) The witnesses are in The Bahamas

7. Nurse L. Thompson: Bahamian resident. Nurse on duty at Atlantis Resort when Amy Howard claims to have become ill. Interviewed Amy Howard and assisted with care until the EMS/Ambulance personnel arrived.

8. Security Officer Charlton: Bahamian resident. Assisted with the investigation after

Plaintiff reported the incident to Atlantis.

9. R. Aderly: Bahamian resident. Atlantis Resort Manager who assisted with the investigation and visited Amy Howard while she was at Doctors Hospital.

10. Rudolph Pinder: Bahamian resident. Interviewed Amy Howard and assisted with the

investigation.

11. Theresa Kemp: Bahamian resident. Clerk for the Head Chef at Mesa Grill. Has information regarding the preparation of the fish Amy Howard claims made her ill.

12. Chef and Cooks at Mesa Grill: Bahamian Residents. Have information regarding the

preparation of the fish Amy Howard claims made her ill.

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13. Mark Brown: Bahamian Resident. The third-party vendor who apparently supplied

the fish Amy Howard claims made her ill.

14. Waiters/Waitresses: Bahamian residents. The waiter/waitresses who served Amy Howard.

15. John Conway: Bahamian resident. Atlantis Resort executive who remained in contact

with Ken Howard after the Howards returned to North Carolina.

16. Kushali Clarke: Bahamian resident. Atlantis Resort employee who remained in contact with Ken Howard after the Howards returned to North Carolina.

17. Doctors Hospital Records Custodian: Bahamian resident. Hospital in The Bahamas where Amy Howard was taken after the purported incident.

18. Doctors who treated Amy Howard in Bahamas: Bahamian residents. The doctor(s)

rendering post incident medical care to Amy Howard are located in The Bahamas.

19. EMS/Ambulance Personnel: The EMS/Ambulance personnel who transported Plaintiff to the hospital would be Bahamian residents.

Other than Plaintiffs, no witnesses to the issues involved in this lawsuit are available in

the United States. Further, many of the listed Bahamian witnesses are unrelated to Defendant and

therefore if forced to litigate this matter in Florida, Defendants may not be able to compel these

witnesses to give documents or depositions – especially the third-party vendor who supplied the

fish. There is no mechanism that will secure these witnesses’ attendance at depositions or trial,

thus the parties may not have access to these witnesses if litigation occurs in Miami.

In addition, Defendants may find it necessary upon further discovery to subpoena third-

party witnesses, or their third-party employers in The Bahamas (e.g., the hospital and treating

doctors in The Bahamas; and the vendor who supplied the fish, the ambulance company). Any

such third-party witnesses cannot be compelled to testify in Miami (whether at deposition or

trial). Accordingly, the private interest factor involving access to relevant witnesses strongly

favors dismissal. See Morrone, Case No. 05-61600, at *5-8 (ruling that because the third-party

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witnesses were Bahamian citizens and resided in The Bahamas, they could not be compelled to

testify or defend the lawsuit in South Florida); Bell, 2006 WL 2619880, at *16 (“Significantly,

because there are no witnesses in this case who reside in Florida, the Court lacks compulsory

process over any unwilling witness, whether located in the United States or The Bahamas. This

lack of compulsory process renders trial in Miami, Florida potentially unfair to the Kerzner

Defendants”); Giordano, Case No. 98-7456, at *2 (“[R]elevant factors of private interest favor

trial in The Bahamas where the alleged injury occurred and where most witnesses live”); cf.

Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1322 (11th Cir. 2011)(finding that the inability to compel

third-party witnesses, production of documents from those witnesses and implead potentially

liable third-parties if the case remained in the U.S. outweighed the plaintiff’s choice of forum as

“unusually extreme and materially unjust”).

(c) Practicalities and the cost of litigation in Miami (as opposed to The Bahamas) weigh in favor of dismissal Given Plaintiffs lack of contacts with Miami, as well as the unavailability of relevant

evidence and witnesses in the U.S., a consideration of the practicalities and expenses of the

litigation renders Miami as an impractical forum. Litigation in Miami will result in greater

expenses to the parties in their respective attempts to conduct needed investigation, discovery

and trial. For example, because the witnesses live outside the jurisdiction of this Court, it will be

necessary to take foreign depositions in the jurisdiction where the above listed fact witnesses

reside – Nassau, Bahamas. Deposition of witnesses in another country is only permissible with

the assistance of the court in the foreign jurisdiction. Although the United States is a signatory to

the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the

parties would have to appeal to The Bahamian courts to assist in obtaining evidence and

testimony. Thus, not only will this litigation prove prohibitively expensive, but depending on

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how The Bahamian courts rule (and how quickly), it may result in the unavailability of needed

evidence and testimony. The parties also will incur substantial expenses associated with having

willing witnesses travel to Miami. Further, if this matter is tried in Florida, both sides would need

to hire local Florida liability experts and those experts would likely need to travel to The

Bahamas to inspect the scene, the fishery and/or interview relevant witnesses. All of this would

add significant expense and time to conducting this litigation.9

(d) The restaurant where Amy Howard purportedly suffered personal injuries as a result of eating fish is at Atlantis Resort on Paradise Island, Bahamas

As the purported food poisoning occurred at a restaurant in The Bahamas, the only place

where experts can conduct their investigation is at the Atlantis Resort on Paradise Island,

Bahamas, as opposed to Miami. Expert witnesses will need to travel to The Bahamas to inspect

the restaurant, the fishery, interview witnesses and third-parties, and investigate documentary

evidence.

Given all of the above, the private factors weigh heavily in favor of dismissal.

(2) Public factors also weigh in favor of dismissal

Once the Court determines the private factors weigh in favor of dismissal, the Court next

considers the public interest factors. Public interest factors are considerations that affect the

convenience of the competing forums. Piper Aircraft, 454 U.S. at 241. The public interest

factors to be considered include: (a) court congestion; (b) the local interest in the controversy; (c)

avoidance of unnecessary problems in the application of foreign law; and (d) avoidance of

9 Plaintiffs are residents of North Carolina. See Complaint at ¶ 3. Plaintiffs will have to travel more than 700 miles to litigate this case regardless of whether the case is litigated in this Court or in The Bahamas. A plane flight from Raleigh, North Carolina to Miami is 702 miles whereas the flight from Raleigh to Nassau is 752 miles – only 52 miles farther.9 Traveling to The Bahamas is therefore no added burden to their traveling (Mileage calculations based on database of airline flight miles maintained by www.webflyer.com/travel/mileage_calculator/).

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imposing jury duty on residents of a jurisdiction having little relationship to the controversy. See

Gulf Oil Corp., 330 U.S. at 508-09.

(a) This lawsuit lacks a connection to Miami and should be dismissed to conserve judicial resources

The first public factor, court congestion, illustrates the impropriety of this forum. The

Southern District of Florida has one of the busiest dockets in the country. Thermal Technologies,

Inc. v. Dade Services Corp., 282 F. Supp. 2d 1373, 1378 (S.D. Fla. 2003); see also Da Rocha v.

Bell Helicopter Textron, Inc., 2006 WL 2619880, at *4-5 (S.D. Fla. Sept. 8, 2006)(because of the

“administrative difficulties flowing from court congestion … it makes little sense to use the

resources and facilities of a busy United States Federal Court to try” cases like this). This dispute

has no connection to Miami other than Plaintiffs attorney is located here. None of the allegations

in the Complaint are the result of any activities conducted in Miami or Florida. This dispute is

between residents of North Carolina and Bahamian corporations regarding fish which was

caught, stored, cooked and served in The Bahamas. In light of these factors (and those discussed

herein), it makes little sense to use the limited time and resources of this Court to adjudicate this

case in Miami. This factor clearly favors The Bahamas.

(b) There is no local interest in the controversy

The U.S. in general and the citizens of Miami in particular, have no interest in an lawsuit

filed by citizens and residents of North Carolina against Bahamian companies for a purported

food poisoning incident that purportedly occurred at a restaurant in The Bahamas. In contrast,

The Bahamas clearly has an interest in determining the standards of conduct and the scope of

liability for companies that do business there – particularly in a personal injury lawsuit involving

food poisoning at The Bahamas largest industry and largest resort. Courts in The Bahamas, not

U.S. courts or juries, should be determining the appropriate standards of conduct for Bahamian

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fisheries and for Bahaman companies with respect to their operations in The Bahamas. See

Foster, 2002 WL 34576251, at *3 (The “Bahamas has a very strong interest in this litigation.

The tourism industry is vital to The Bahamas, and The Bahamas has an interest in regulating the

conduct of Bahamian defendants and they duty under Bahamian law they owe visitors to the

Atlantis Resort – the largest resort on the islands”)(emphasis added); McGinn, Case No.: 12-cv-

20536-Moore, at *5 (same); Kawasaki Motors Corp. v. Foster, 899 So. 2d 408, 412 (Fla. 3d

DCA 2005)(ruling that public interest would be served by transferring jurisdiction to Jamaica

since Jamaica has a significant interest in punishing a wrongdoer within its jurisdiction and

ensuring the safety of those who visit its resorts).

Bahamian law governs this dispute. Because Plaintiffs filed this diversity action in the

Southern District of Florida (see Complaint at ¶1), Florida’s conflict-of-laws rules resolve the

present dispute. Judge v. American Motors Corp., 908 F.2d 1565 (11th Cir. 1990); Trans

Caribbean Lines, Inc. v. Tracor Marine, Inc., 748 F.2d 568, 570 (11th Cir.1984)(citing Klaxon

Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 1941)). Florida’s conflict-of-laws rules are set forth

in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980). Florida has adopted the

“significant relationship test” of the Restatement (Second) of Conflicts of Law (“Restatement”),

which requires the Court to determine controversies in accordance with the law of the

jurisdiction with the “most significant relationship to the occurrence and the parties.” See id. at

1001. The factors that must be considered in determining which state has the most significant

relationship are: (1) the place where the injury occurred, (2) the place where the conduct

occurred which caused the injury, (3) the domicile, residence, nationality, place of incorporation,

and place of business of the parties, and (4) the place where the relationship, if any, between the

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parties is centered. Id. citing Restatement § 145. For personal injury cases, such as here, Section

146 of the Restatement provides that the laws of the state where the injury occurred determines

the rights and liabilities of the parties. See id. at 1001.

Here, the purported personal injury occurred in The Bahamas. The conduct causing the

injury took place in The Bahamas; the fish was supplied in The Bahamas, the fish was stored,

prepared, cooked and ultimately served in The Bahamas. Plaintiffs are citizens and residents of

North Carolina. See Complaint at ¶ 3. Defendants are Bahamian corporations. See Complaint at

¶¶ 4-16. Defendants maintain places of business in The Bahamas. The relationship between the

parties (Plaintiffs allege they were on Atlantis Resort property) centered in The Bahamas.

Plaintiffs were not in Florida at the time of the purported incident, nor did they conduct business

with Defendants in this state. If they interacted at all, Plaintiffs and Defendants interacted solely

in The Bahamas. Therefore, the general principle of the Florida choice-of-law test as set forth in

the Restatement points clearly to application of Bahamian law. In addition, Plaintiffs have

contractually agreed in the form they signed upon arrival at Atlantis that Bahamian law would

apply to this claim.

(d) Since this dispute has no connection to Florida, jury duty should not be imposed on the citizens of Miami

Given the lack of local interest, avoiding the imposition of jury duty on the residents of

Miami is a significant factor in this lawsuit. In addressing this issue, one Court in this Circuit

stated that:

Scores of citizens from this community would be inconvenienced by being called to serve as jurors in cases involving parties and events having no connection to this forum. The burden of imposing jury duty on citizens to decide a case with no connection to the forum is a significant factor in performing a forum non conveniens analysis.

See Pyroectos Orchimex de Costa Rica, S.A. v. E.I. Dupont de Nemours & Co., 896 F. Supp.

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 15 of 23

1197, 1203 (M.D. Fla. 1985)(citations omitted).

For all of the reasons discussed above, the private and public interest factors weigh

heavily in favor of dismissal.

(3) Southern District of Florida courts have dismissed negligence claims against Atlantis Resort or its affiliated companies based upon the doctrine of forum non conveniens

In McGinn v. Kerzner Intern. Hotels Ltd., Case No.: 12-cv-20536-Moore (S.D. Fla.

October 22, 2012), Judge Moore dismissed a personal injury case on forum non convenien

grounds. McGinn involved New Jersey residents. Judge Moore ruled that the “overwhelming”

evidence favored dismissal: “the vast amount of evidence [is] located in The Bahamas … and

The Bahamas has a stronger sovereign interest in regulating its citizens’ conduct that occurs

entirely within its territory ….” (noting that “The Bahamas has an inherent local interest in this

lawsuit because tourism is the single largest industry in The Bahamas and the Atlantis is the

largest hotel and single largest employer in The Bahamas”).

In Morrone v. Sun Int’l Hotels, Ltd., Case No. 05-61600-CIV-Seitz/McAliley (S.D. Fla.

Sept. 25, 2005), Judge Seitz dismissed a personal injury case on forum non conveniens grounds.

The incident purportedly occurred at the Atlantis Resort. Morrone involved a New Jersey

resident who filed a lawsuit alleging similar defendants were negligent in their control of the

hotel premises. In analyzing whether to dismiss the case on forum non conveniens grounds,

Judge Seitz ruled that the private and public factors weighed heavily in favor of a trial in The

Bahamas. Among the factors held to be significant were that a majority of the key witnesses

resided in The Bahamas and could not be compelled to testify in Florida.

Similarly, in Foster v. Sun Int’l Hotels, Ltd., 2002 WL 34576251 (S.D. Fla. 2002), Judge

King dismissed a personal injury case on forum non conveniens grounds. In Foster, a California

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 16 of 23

resident alleged he suffered personal injury when he slipped and fell on a walkway at the Atlantis

Resort. Judge King ruled that The Bahamas was an adequate alternative forum and the private

and public factors weighed heavily in favor of trial in The Bahamas. Judge King also found that

key witnesses were in The Bahamas, as were the employees responsible for the maintenance of

the accident site. Further, documents regarding the maintenance of the accident site were kept in

The Bahamas, and viewing the accident site could only be done in The Bahamas.

In Morse v. Sun Int’l Hotels, Ltd., 2001 WL 34874967 (S.D. Fla. 2001), Judge Jordon

dismissed a personal injury claim on forum non conveniens grounds. Morse involved a Florida

resident who claimed she was injured in a boating accident while vacationing in The Bahamas.

She sued the owners and operators of the Atlantis Resort for negligence. Judge Jordan ruled that

The Bahamas was an adequate alternative forum. He concluded that the private and public

factors weighed heavily in favor of trial in The Bahamas. Judge Jordon determined that the

witnesses were in The Bahamas, the documentary evidence was kept in The Bahamas, viewing

the accident site could only be done in The Bahamas, and Bahamian law applied to the dispute.

Significantly, Morse was affirmed by the Eleventh Circuit. See 277 F.3d 1379 (11th Cir.

2001).

In Bell v. Kerzner Int’l Resorts, Inc., Case No. 10-23755-PAS (S.D. Fla. July 14 2011),

Judge Seitz dismissed a California plaintiff’s wrongful death action in favor of re-filing in The

Bahamas. Judge Seitz ruled that the public and private factors tipped in favor of The Bahamas.

In Miyoung Son v. Kerzner Int’l Resorts, Inc., 2008 WL 41869779 (S.D. Fla. 2008),

Judge Marra dismissed negligence and loss of consortium claims on forum non conveniens

grounds. Judge Marra ruled that The Bahamas was an adequate alternate forum and that the

private and public interest factors weighed against the plaintiff’s selection of the Southern

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 17 of 23

District of Florida.

In Horberg v. Kerzner Int’l Resorts, Inc., 744 F.Supp.2d 1284 (S.D. Fla. 2007), Judge

Ungaro dismissed the claims of two Illinois residents that arose out of an alleged jet ski accident

occurring in the waters off the Atlantis Resort. Judge Ungaro also determined that The Bahamas

was an adequate alternate forum and that the private and public interest factors weighed in favor

of dismissal.

In Giordano v. Sun Int’l North Am. Inc., 98-cv-07456-WPD (S.D. Fla. Oct. 1, 1999),

Judge Dimitrouleas dismissed on forum non conveniens grounds, ruling that The Bahamas was

an adequate alternate forum “where the alleged injury occurred and most witnesses live.” Judge

Dimitrouleas also ruled that the private and public interest factors favored trial in The Bahamas.

See also Chierchia v. Treasure Cay Svc., 738 F. Supp. 1386 (S.D. Fla. 1990)(dismissing a claim

to recover for personal injuries allegedly incurred in a boating accident in The Bahamas on

forum non conveniens grounds).10

C. Plaintiffs can reinstate their lawsuit in The Bahamas without undue inconvenience or prejudice

Once the Court determines that the balance of interests favors the alternative forum, then

it must “ensure that plaintiffs can reinstate their suit in the alternative forum without undue

inconvenience or prejudice.” La Seguridad, 707 F.2d at 1307. Here, Plaintiffs have chosen a

forum that is more than 700 miles from their residence. It would be no more inconvenient for

Plaintiffs to travel to The Bahamas than it would or them to travel to Miami. See Morse, 2001 10 Other courts have also dismissed negligence claims involving the Atlantis Resort on forum non conveniens grounds. For example, in Dangler v. Atlantis Resort & Casino et al., Case No. CIV S-01-1228 WBS DAD (E.D. Cal. Aug. 1, 2002), the Eastern District of California dismissed a personal injury claim arising from an alleged slip and fall at the resort. The court dismissed the lawsuit ruling that The Bahamas was an adequate alternative forum and that the private and public factors weighed in favor of dismissal. The court found that the key witnesses were in The Bahamas, the documentary evidence was kept in The Bahamas, and viewing the site could only be done in The Bahamas. The court also found that Bahamian courts have an interest in litigating matters occurring on Bahamian soil which far exceeded California’s interest in the lawsuit.

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WL 34874967, at *3 (noting that it would be no more inconvenient for the plaintiffs and

witnesses based in New Jersey to travel to Bahamas than it would be for them to travel to

Miami); see also Chierchia, 738 F. Supp. at 1388 (“But travel to Florida [from New York] to

litigate would inconvenience plaintiff, therefore her travel to The Bahamas for that purpose could

not be more intrusive”). As noted above in footnote 9, there is only a 52 mile difference in the

air distance between North Carolina and Miami versus between North Carolina and Nassau,

Bahamas. Plaintiffs will be able to pursue their claims in a Bahamian court without undue

inconvenience. Moreover, Plaintiffs will not suffer any undue prejudice if they re-file their

action in The Bahamas. Indeed, the Defendants are Bahamian corporations subject to jurisdiction

in The Bahamas. Defendant will accept service of suit for any lawsuit filed relating to this matter

in The Bahamas. Further, in the event the statute of limitations for negligence claims involving

personal injury has run in the Bahamas, Defendants agree to waive that defense if Plaintiffs re-

file their lawsuit in The Bahamas within six months after dismissal of this action.

For the reasons discussed above, the Defendants have met their burden as to all

requirements for a forum non conveniens dismissal and Plaintiffs’ Complaint should be

dismissed accordingly.

IV. The Complaint fails to specify which facts are supportive of what claims

Although the Complaint should be dismissed for the reasons set forth above on the

grounds of forum non conveniens and/or the contractual forum selection clause, additional

grounds also exist to dismiss the Complaint. While the Complaint does not fit the “traditional”

description of a shotgun pleading, it is the equivalent because the Complaint purports to raise

multiple causes of action but none of the factual allegations are incorporated by reference into

either of the counts, thus making it impossible to know which of the allegations of fact are

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 19 of 23

intended to support which claim(s) for relief. See Anderson v. District Board of Trustees of

Central Florida Community College, 77 F.3d 364 (11th Cir. 1996)(severely criticizing the use of

shotgun pleadings); see also Beckwith v. Bellsouth Telecommunications Inc., 146 Fed. Appx.

368, 371 (11th Cir. 2005)(stating that a shotgun pleading is a plead in which a plaintiff fails “to

identify claims with sufficient clarity”).

V. The purported Loss of Consortium claim fails to state a cause of action Under the Federal Rules a Complaint must contain a short and plain statement showing

an entitlement to relief, and the statement must “give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512 (2002) (citing Fed. R. Civ. P. 8); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

553 (2007).11 Here, Plaintiffs completely fail to satisfy this requirement. Not only is the claim

merely self-serving, but they have failed to identify what medical care and treatment Ken

Howard incurred or could conceivably incur in the future for himself due to his wife’s alleged

food poisoning. Defendants cannot respond to this claim in its current form.

11 The U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), set out a new test for the pleading requirement for a “well-pleaded complaint” in federal court. The Court’s recent reinterpretation of the federal notice pleading standard in Twombly and Iqbal, have significantly altered the pleading standard at the motion to dismiss stage. In Twombly, the Court ruled that to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” See 550 U.S. at 570. Then in Iqbal, the Court summarized the standard as follows:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss ... [W]here the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]” — “that the pleader is entitled to relief.”

Id. at 1949-50. The Court explained that whether a complaint sets out a plausible claim for relief is context-specific. A decision by a court addressing this issue requires “judicial experience and common sense.” Id. at 1950. Thus, Iqbal directs the lower courts to read complaints closely and to parse allegations to determine whether a plausible claim is in fact pleaded. Here, Plaintiff must be required to comply with Rule 8 and the tenants of Twombly and Iqbal, which they have failed to do.

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VI. The purported Damages claim fails to state a legally cognizable cause of action

Courts around the country and in a variety of different contexts have ruled that

“Damages” is not a legally cognizable cause of action – it is merely a part of the remedy which

the law allows for the injury resulting from a breach or wrong. See e.g., U.S. v. Standard Oil Co.

of California, 21 F. Supp. 645, 660 (S.D. Cal. 1937). “The cause of action is something distinct

from the remedy or the relief sought. The remedy is simply the means by which the cause of

action is satisfied.” See Dennison v. Payne, 293 F. 333, 344 (2d Cir. 1923); Wright v. Brush, 115

F.2d 265 (10th Cir. 1940)(“Allegations of damages are essential in a bill of complaint, but they

do not constitute the cause of action”); cf. Williams v. Walsh, 558 F.2d 667 (2d Cir.

1977)(holding that “requests for reinstatement and for backpay, compensatory damages and

punitive damages, most certainly do not themselves give rise to separate ‘causes of action’”).

Accordingly, the Damages “cause of action” should be dismissed with prejudice.

VII. Conclusion

For the reasons discussed above, this lawsuit should be dismissed. First, Plaintiffs are

bound by the written agreement containing a valid forum selection clause requiring this dispute

be heard exclusively in The Bahamas. Second, dismissal based upon forum non conveniens is

appropriate because The Bahamas is an adequate alternative to address Plaintiffs’ claims. The

private and public interest factors weigh heavily in favor of a trial in The Bahamas and the

Plaintiffs can re-file their lawsuit in The Bahamas without undue inconvenience or prejudice.

Third, the Complaint fails to specify which facts are supportive of what claims. Fourth, the Loss

of Consortium claim fails to comply with Twombly and Iqbal. Finally, Plaintiffs’ Damages claim

fails to state a legally cognizable cause of action. Accordingly, Defendants respectfully request

the Court grant this Motion and dismiss the lawsuit in its entirety.

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 21 of 23

Dated: February 11, 2013 Miami, Florida

Respectfully submitted,

MALTZMAN & PARTNERS, P.A. BY: /s/ Steve Holman______ Jeffrey B. Maltzman, Esq. Florida Bar No. 0048860 [email protected] Steve Holman, Esq. Florida Bar No. 547840 [email protected] 55 Miracle Mile, Suite 320 Coral Gables, FL 33134

Tel: 305-779-5665 / Fax: 305-779-5664 Attorneys for Defendants

CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the

Court via CM/ECF on this 11th day of February, 2013. I also certify that the foregoing was

served on all counsel or parties of record on the attached Service List either via transmission of

Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those

counsel or parties who are not authorized to receive electronic Notices of Filing.

By: /s/ Steve Holman___ Steve Holman, Esq.

Case 1:12-cv-22184-FAM Document 22 Entered on FLSD Docket 02/11/2013 Page 22 of 23

SERVICE LIST

CASE NO: 12-CV-20536-KMM

Robert L. Parks, Esq. [email protected] Law Offices of Robert L. Parks 2121 Ponce de Leon Blvd, Suite 505 Coral Gables, FL 33134 Tel.: 305-445-4430 Fax.: 305-445-4431 Attorneys for Plaintiffs

Jeffrey B. Maltzman, Esq. [email protected] Steve Holman, Esq. [email protected] MALTZMAN & PARTNERS, P.A. 121 Alhambra Plaza, Suite 1500 Coral Gables, FL 33134 Phone: 305-779-5665

Fax: 305-779-5664 Attorneys for Defendants

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