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ResponseOpposingMotiontoDismissComplaint-1.pdf
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 12-22184-FAM
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; PARADISE
ISLAND LIMITED, a Bahamian company
Defendants.
________________________________________/
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS
Plaintiffs, AMY HOWARD and KENNETH HOWARD, her husband, file this Response
to Defendants’ Motion to Dismiss [D.E. 22] and in support thereof state as follows:
On February 11, 2013, Defendants, KERZNER INTERNATIONAL LIMITED, et. al.,
filed a Motion to Dismiss [D.E. 22] on five grounds: 1) Plaintiffs signed a forum selection
clause; 2) Forum Non Conveniens; 3) the complaint fails to specify sufficient facts; 4) the loss of
consortium claim fails to conform to Twombly and Iqbal; and 5) the “Damages” section of the
complaint fails to state a legally congnizable claim.
Plaintiffs respectfully disagree and further state as follows:
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I. The Forum Selection Clause at Issue is Unenforceable
The forum selection clause at issue is unenforceable because the Howards were not given
advance notice of the forum selection clause and so it was presented for the first time at check in.
Where a forum selection clause is presented for the first time at check-in, courts in Southern
District have found the clause unenforceable and fundamentally unfair because the resisting
party is not free to reject the clause with impunity. See, e.g., Sun Trust Bank v. Sun Int=l Hotels,
Ltd., 184 F. Supp. 2d 1246 (S.D. Fla. 2001); Foster v. Sun Int=l Hotels, Ltd., 2002 WL 34576251
(S.D. Fla. 2002); Larsen v. Kerzner Int=l Hotels Ltd., 2009 WL 1759585 (S.D. Fla. 2009).
In Sun Trust Bank, the plaintiff was presented with the forum selection clause for the first
time when she checked into the resort with her two children. It was undisputed that she was not
told when she made her reservations that she would be required to sign the clause. The clause
was presented in a manner that made it objectively appear to be a required part of the check-in
process, with the guest told to read and sign.
The District Court concluded that although the language of the clause was sufficiently
clear to put the guest on notice of the legal matters contained therein, enforcement of the clause
under the circumstances would be fundamentally unfair because the plaintiff was not afforded a
meaningful opportunity to consider and reject the terms [emphasis added]. Sun Trust Bank, 184
F. Supp. 2d at 1261-62.
In the instant case, neither Amy Howard nor Ken Howard was afforded an opportunity to
read or reject the terms because they did not receive advance warning that they would be signing
a forum selection clause. An email apprising them would not have been sent to the Howards
because they did not book the resort stay. In fact, Amy and Ken Howard were never even made
aware of the forum selection clause because if it was emailed to anyone it would have been their
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friend, T.J. Lewis. See Affidavits of Amy Howard, pp. 3, ¶ 12 and Kenneth Howard, pp. 2, ¶ 4-
5. (Exhibit 1 and Exhibit 2) 1 . At check-in, Ken Howard signed the guest registration papers, and
provided a credit card to the Atlantis front desk. At no time did he read the forum selection
clause, nor was it explained it to him by Atlantis personnel, nor did he convey to Amy Howard
that he had signed any such document. See Aff. A. Howard, pp. 3, ¶ 16 (Exhibit 1) and Aff. K.
Howard, pp. 2, ¶ 4-5. (Exhibit 2) Further, even if Kenneth Howard had read the forum selection
clause, the Howards could not have rejected it with impunity because they were already in the
Bahamas and neither he nor his wife had received advanced warning of the forum selection
clause.
Similarly, in Foster v. Sun Int=l Hotels, Ltd., 2002 WL 34576251 (S.D. Fla. 2002), a
California citizen filed a personal injury action after he slipped and fell at the Atlantis Resort,
Bahamas. The forum selection clause was held invalid where the plaintiff was presented with
the clause for the first time during check-in and the guest was not provided with an adequate
opportunity to consider the clause and reject it. The Court explained that enforcement of the
clause under those circumstances would violate fundamental fairness. (citing Sun Trust Bank v.
Sun Int=l Hotels, Ltd., 184 F. Supp. 2d 1246) .
Also, in a case that is squarely on point with the instant action, a vacation was booked by
a father for his family, which included an adult daughter who lived in a different state from her
parents. Confirmation emails advising of the forum selection clause were sent to the father.
Upon arrival, the plaintiff=s father and sister signed guest registration cards which included a
forum selection clause. The plaintiff was not presented with a card and did not sign. This Court
concluded that the forum selection clause did not apply because plaintiff had no prior knowledge
1 Plaintiffs have attached unsigned versions of their affidavits. Identical signed and notarized versions will be filed
with the Clerk upon their receipt by counsel.
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of the clause and sister did not have apparent authority to sign on her behalf. Larsen v. Kerzner
Int=l Hotels, Ltd. 2009 WL 1759585 (S.D. Fla. 2009)
Further, this Court explained that, even if plaintiff in Larsen saw the clause at check-in,
the lack of prior notice of the clause would militate against finding the clause reasonable and
enforceable. The Court further explained that the fact that notice is given on the Atlantis=
website that guests are required to sign a forum selection clause at check-in is irrelevant: AThe
only way the plaintiff would have known about the clause is if she had actively sought it out.@
Larsen, 2009 WL 1759585 at 9.
Courts in the Southern District have recognized situations where a forum selection
clauses are enforceable, but the instant case is highly distinguishable. See Miyoung Son v.
Kerzner Int=l Resorts, 2008 WL 4186979 (S.D. Fla. 2008); Horberg v. Kerzner Int=l Hotels, Ltd.
2007 WL 7274825 at 3 (S.D. Fla. 2007).
In Miyoung Son, a husband and wife purchased a vacation from defendants through a 1-
800 number and confirmation emails were sent to plaintiff=s wife, which advised that forum
selection clause would be presented for signature at registration. The husband signed the forum
selection clause at check-in on behalf of the wife and his family group. Since the husband and
wife had visited previously and signed a similar forum selection clause, the district court
concluded that the plaintiffs had notice of the clause by virtue of their prior visit and emails.
Further, the court took into account that the husband in Miyoung Son acted with Aapparent
authority@ because the Atlantis Resort reasonably believed his representations that he had the
authority to bind Mrs. Son.
In Horberg, the plaintiff was presented with the forum selection clause for the first time
at check-in, but had been a guest of the Atlantis before and signed the clause at each visit. AIf
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Horberg had been presented with the guest registration card for the first time on March 24, 2005,
the Court might reach a different conclusion. However, Horberg had been presented with and
signed the guest registration at issue on multiple occasions [emphasis added]. Consequently,
under the facts of this case, the Court finds that forum selection clause . . . to be enforceable.@
2007 WL 7274825 at 3.
Defendants rely upon Krenkel v. Kerzner International Hotels, Limited, et al., 579 F.3d
1279 (11 th Cir. 2009). Such reliance is misplaced as in that case the Court relied heavily on the
fact that the plaintiffs had been to the Atlantis on previous occasions and had signed the identical
forum selection clause on more than one occasion.
Miyoung Son, Horberg and Krenkel are distinguishable. In the instant case, Amy
Howard had previously visited the Atlantis, however, when she did so in 2000, her mother,
Jennie Simmons planned the trip and booked the rooms and in 2003 she stayed with a friend
Emily Stallings who planned the trip and booked the rooms. In those years when she visited her
name was not Amy Howard, it was Amy Jo Hilewitz, her maiden name. Further, at no time did
either her mother or Emily Stallings provide any notice of a binding forum selection clause. See
Aff. A. Howard, pp. 3 and ¶ 12-16. (Exhibit 1).
The burden is on Defendants to show that the Plaintiffs were given some form of notice
as to the contents of the forum selection clause before arriving. No such evidence has been
presented and, for that reason alone, Defendants= motion must be denied. For a recent order
entered by Hon. Judge Dimitrouleas denying a motion to dismiss on both forum selection clause
grounds and forum non conveniens see Order Denying Motion to Dismiss, [D.E. 29], Massa v.
Kerzner, Case No. 11-cv-60232. (Exhibit 3). In that case, the decedent similarly did not receive
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notice of the forum selection clause and his friend who signed on his behalf did not convey the
contents of the forum selection clause to him.
II. Defendants Have Failed to Carry their Burden for Dismissal of this Action on Forum
Non Conveniens Grounds
Defendants have failed to carry their burden for dismissal of this action on forum non
conveniens grounds. At the outset, it is important to note that Defendants have completely
neglected citing to the seminal Eleventh Circuit case, SME Racks, Inc. v. Sistemas Mecanicas
Para Electronica, S.A., 382 F.3d 1097, 1099 (11 th Cir. 2004).
In SME Racks, the Eleventh Circuit mandated that district courts >require positive
evidence of unusually extreme circumstances, and should be thoroughly convinced that
material injustice is manifest before exercising any such discretion as may exist to deny a
United States citizen access to the courts of this country.@ Id. at 1101.
Generally, “[t]he doctrine of forum non conveniens permits a court with venue to decline
to exercise its jurisdiction when the parties’ and court’s own convenience, as well as the relevant
public and private interest, indicate that the action should be tried in a different forum.” Pierre
Louis v. Newvac Corp. 584 F.3d 1052, 1056 (11th Cir. 2009).
A. Private Interest Factors Weigh Against Dismissal
Private interest factors include: relative ease of access to sources of proof, access to
unwilling and willing witnesses, ability to compel testimony, the possibility of the view of the
premises, and the enforceability of judgment. Wilson v. Island Seas Investments, Ltd. 590 F.3d
1264, 1270 (11th Cir. 2009) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); Renta,
530 F.3d at 1356.). “These factors are not exhaustive and the court should be flexible in
applying them.” Id. (citing King v. Cessna Aircraft Co. 562 F.3d 1374, 1381-82 (11th Cir.
2009)). In balancing the private interest factors, the Court must also account for the
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“‘strong presumption against disturbing [a plaintiff’s] initial forum choice.’” La Seguridad v.
Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (quoting Pain v. United Tech. Corp., 637
F.2d 775, 784 (D.C. Cir. 1980) (alteration added)); see SME Racks, Inc. v. Sistemas Mecanicos
Para Electronica, S.A., 382 F.3d 1097, 1102 (11th Cir. 2004) (noting that the presumption in
favor of a plaintiff’s choice of forum “is to be applied specifically when weighing the private
interests.”) (citation omitted). For a recent Eleventh Circuit decision reversing a trial court for
failing to apply the strong presumption against disturbing a plaintiff’s initial choice of forum
while balancing private interest factors, see unpublished Eleventh Circuit opinion in McLane v.
Los Suenos Marriott Ocean and Golf Resort, et. al., Case No: 11-11860, DC Docket No 08-cv-
20662, attached as Exhibit 4.
Defendants point to various sources of evidence for why this case must be dismissed in
favor of the Bahamas. However, even a cursory examination of the evidence proffered as
requiring dismissal shows that Defendants’ argument is flawed as they fail to show unusually
extreme circumstances or manifest injustice.
The accident scene: Not relevant to this action. This suit concerns ciguatera poisoning.
The “accident scene” is simply not relevant as it does not matter whether the fish was purchased
at a restaurant or local fishery. 2 The fish was served to Amy Howard in an Atlantis restaurant.
Further, Defendants have presented the Court with no positive evidence that their defense would
be prejudiced by trying this case in the Southern District, since the “accident scene” is under
their control.
2 Plaintiffs will be filing leave to amend the complaint to include a count for strict liability. For the purposes of
Defendants’ motion, this does not significantly alter the analysis. The witnesses are all the same as are the operative
facts and circumstances surrounding the incident.
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Records regarding fish purchases: are not relevant other than to establish chain of custody
of the fish eaten by Amy Howard on the day in question. Further, any records can be easily be
copied and exchanged in discovery.
Documents regarding health inspections: if relevant can easily be copied and provided to
the parties.
Medical records in the Bahamas: Plaintiff is amenable to signing whatever medical
releases necessary for Defendant to obtain her medical records from Bahamian medical
providers. In any event, Amy Howard received minimal treatment in the Bahamas as her stay in
the hospital was brief. See Aff. A. Howard, pp. 2, ¶ 8-10. (Exhibit 1)
Records from Bahamian doctors: See above “Medical Records in the Bahamas.”
EMS/Ambulance Records: It is unclear how these records are relevant to the instant
action. Defendants have failed to demonstrate how their defense of this lawsuit would be
prejudiced by trying this case here in the Southern District or how they would be barred from
obtaining these records.
Defendants argue that the volume of documents located in the Bahamas supports
dismissal. Defendants, however, fail to show how this prejudices them in any way. Documents
are going to have to copied and exchanged between the parties regardless of where this litigation
takes place. With modern technology, documents can be scanned and exchanged via E-mail in
minutes.
Arguments concerning burdensome nature of the exchange of documentary evidence may
very well have carried the day in past forum non conveniens analyses, however, where
technology has made the exchange of information more efficient and cost effective, the same
arguments have been rendered moot.
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As to witnesses listed by Defendants, of the thirteen possible witnesses listed by
Defendants, nine of them are either under the supervision or control of the Atlantis and therefore
can be compelled to testify. Defendants have failed to show unusually extreme circumstances
or manifest injustice were this case to be tried in the Southern District. Further, Defendants
have failed to show why they would be prejudiced by having any of these witnesses appear via
remote video teleconferencing or by having videotaped depositions conducted.
Defendants’ assertion that other than the Plaintiffs there are no witnesses available in the
United States is simply erroneous. Whereas the majority of the witnesses listed by Defendants
are under Defendants’ control and can be compelled to testify, Plaintiffs’ witnesses are not and
may require the compulsory process of this Court. Aside from Amy and Ken Howard who are
both United States citizens and located in the United States, all of Amy Howard’s treating
physicians are located in the United States. See Aff. A. Howard, pp. 2, ¶ 8 (Exhibit 1) Further,
the individuals who dined with Amy Howard when she contracted the ciguatera poisoning are
located in the United States as is a friend who visited Amy in the hospital in the Bahamas. She
may also be called as a witness to testify as to Amy Howard’s physical state. See Aff. A.
Howard, pp. 2, ¶ 7 (Exhibit 1).
Since Defendants have done little more than raise the specter of possible third party
Bahamian witnesses, they have failed to overcome the considerable burden in disturbing
Plaintiffs’ initial choice of forum. For the reasons stated above, the Court should find that
private interest factors weigh heavily against disturbing Plaintiffs’ choice of forum. See also,
Order Denying Motion to Dismiss, Black v. Kerzner, Case No. 12-60301-
DIMITROULEAS/SNOW. (Exhibit 5) The Hon. Judge Dimitrouleas found, after weighing the
public and private interest factors, that dismissal was not warranted because Kerzner Defendants
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had failed to overcome the strong presumption against disturbing Plaintiffs’ initial choice in
forum.
B. Public Interest Factors Weigh Against Dismissal
If the Court finds that the balance of private factors is in equipoise or near
equipoise, then it must determine whether or not factors of public interest tip the balance in favor
of a trial in a foreign forum. Wilson, 590 F.3d 1271-72. The Eleventh Circuit has clarified that
while Aprivate factors are generally considered more important@ courts should consider both
public and private factors Ain all cases.@ Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.
2001).
Public interest factors include: a) court congestion and jury duty generated by
controversies having no relation to the forum; b) the desirability of having localized
controversies decided at home; and c) the difficulties attendant in resolving conflict of law
problems and applying foreign law. See Ward v. Kerzner International Ltd., et. al, 2005 WL
2456191 at *4, citing La Seguridad, 707 So.2d at 1307.
The instant action is between U.S. citizens and Defendants who are doing extensive
business here, in Florida, and abroad, therefore the United States and Florida both have interest
in the litigation. See SME Racks, 382 F.3d at 1104; and Ward, 2005 WL 2456191 at *5 (citing
Sun Trust v. Sun Int=l Hotels Ltd., 184 F. Supp.2d 1246, 1266) (A[T]his forum has a similar
interest in providing United States citizens with a forum in which to seek redress for injuries
caused by foreign defendants who are subject to U.S. jurisdiction.@) As Judge Jordan stated in
Collins:
This controversy has a relationship to this forum because, as stated above,
>there is a strong federal interest in making sure that plaintiffs who are United States citizens generally
get to choose an American forum for bringing suit, rather than having their case relegated to a foreign
jurisdiction.=SME Racks, 382 F.3d at 1104. At the same time, I recognize that the Bahamas has a stake
in the efficient resolution of lawsuits involving accidents occurring on its soil. I conclude that this
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interest is outweighed, however, by the interest in providing an American plaintiff an American
forum...@ [Emphasis added]
Also, this country and its citizens certainly have a significant interest in determining that
resort operators, such as the Kerzner Defendants, take reasonable steps to ensure the safety of
their guests. See Ward v. Kerzner Int’l Hotels, Ltd. 18 Fla. L. Weekly Fed. D 506 (S.D. Fla.
2005) (Court found that the United States has a public interest in a case where the underlying
incident occurred at a resort in the Bahamas and that resort conducts business in the United
States through South Florida offices.) The Court should take notice that the Defendants conduct
extensive business in Florida and the United States as a whole. See Screenshot of Kerzner’s
website posting jobs here in Florida. (Exhibit 6)
Defendants take the position that Bahamian law applies but have failed to conduct the
proper choice of law analysis. Plaintiffs oppose the position that Bahamian law applies,
however, should the Court entertain that Bahamian law does in fact apply, Plaintiffs should be
afforded an opportunity to present expert testimony as to what Bahamian law governs the instant
action. Defendants’ assertion that because the incident occurred in the Bahamas, automatically
invokes Bahamian law is unsubstantiated. Further, assuming Bahamian law would apply,
Defendant has failed to show why a jury cannot be instructed in Bahamian law once it is
determined what that law is.
Because Defendants have failed to overcome the strong presumption in favor of
disturbing Plaintiffs’ initial choice of forum and because Defendants failed to show unusually
extreme circumstances or manifest injustice, the instant motion fails.
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III. Plaintiff’s Complaint Comports to Federal Rules’ Pleading Standards
In addition to forum selection and forum non conveniens grounds, Defendants seek
dismissal of this case on the grounds that the Complaint does not sufficiently state facts
supportive of their claims. See Def. M. Dismiss [D.E. 22] at p. 19. All that is required of the
pleadings is a short plain statement showing that the Plaintiff is entitled to relief. See Fed. R.
Civ. P. 8.
Further, it is well settled law that when pleading “[s]pecific facts are not necessary; the
statement need only “ ‘give the defendant fair notice of what the ... claim is and the grounds
upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007) citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Further, “when ruling on a motion
to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”
Twombly, 550 U.S. at 555-556.
The facts in this case could not be more straightforward. Plaintiff, Amy Howard, alleges
that she contracted ciguatera poisoning from eating a fish sold and served to her at an Atlantis
restaurant. Further Kenneth Howard, her husband is maintaining a derivative consortium claim.
The Complaint states the parties to the action, when the incident occurred, how the incident
occurred and the theory of liability that Plaintiffs believe entitle them to relief.
As to the “Damages” section of the Complaint, it is not a cause of action, merely a
recitation of the damages for which the Plaintiffs seek redress.
Finally, while in one breath Defendants test the sufficiency of the Plaintiffs’ Complaint, it
certainly has at least enough facts to afford Defendants enough notice to determine what
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witnesses may be required and what the relevant documentary evidence is and where it is
located.
CONCLUSION
Defendants have failed to carry their burden with respect to the forum selection clause in
that they have failed to prove advance notice of the clause. Further, Defendants have failed to
carry their burden for dismissal on the issue of forum non conveniens. Finally, because the
Complaint comports to the Federal Rules of Civil Procedure as a short plain statement that puts
the Defendants on notice of the claims against them, Plaintiffs, respectfully request that the Court
deny Defendants’ motion to dismiss.
Respectfully submitted,
THE LAW OFFICES OF ROBERT L. PARKS, P.L. 799 Brickell Plaza, Suite 900
Miami, Florida 33131
Telephone: (305) 445-4430
Fax: (305) 445-4431
Email: [email protected]
By: /s/ Robert L. Parks
Robert L. Parks
Florida Bar No. 61436
Attorney for the Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was filed on March 21,
2013 with the Clerk using cm/ecf, who will forward copies to all counsel of record.
/s/ Robert L. Parks
Robert L. Parks
Florida Bar No. 61436
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EXHIBIT 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 12-22184-FAM
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; PARADISE
ISLAND LIMITED, a Bahamian company
Defendants.
________________________________________/
AFFIDAVIT OF AMY HOWARD
STATE OF NORTH CAROLINA :
PITT COUNTY :
BEFORE ME personally appeared AMY HOWARD who has taken an oath and swears
and affirms that the following allegations are true and correct to the best of their knowledge and
belief.
1. I, AMY HOWARD, am both over the age of eighteen (18) and have personal knowledge
of the facts contained herein and am otherwise fully competent to make this affidavit.
2. I am a citizen of the United States and domiciled in and a resident of the State of North
Carolina.
Case 1:12-cv-22184-FAM Document 25-1 Entered on FLSD Docket 03/21/2013 Page 2 of 5
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3. I am producing this affidavit in response to Defendants’ Motion to Dismiss [D.E. 22].
4. On or about June 18, 2009, while a guest of the Atlantis resort, I contracted ciguatera
poisoning from eating fish served to me at the Mesa Grill at the Atlantis.
5. The individuals who dined with me were Thad J. Lewis III and Carrie Lewis. Mr. and
Mrs. Lewis are since divorced.
6. T.J. Lewis is located in Raleigh, North Carolina and Carrie Lewis is located in
Greenville, North Carolina. Both witnesses were with me when I ate the fish that gave
me ciguatera poisoning.
7. Jenny Hall Robeson is a friend who happened to be in the Bahamas and visited me in the
hospital there, she is also located in North Carolina.
8. All of my hospital records and treating physicians are located in North Carolina. They
include:
a. Pitt County Memorial Hospital Records;
b. Dr. Saad Amin, Hospitalist Greenville, NC;
c. Dr. Hadi Ladak, Hospitalist Greenville, NC;
d. Dr. Michael Fujimagari, Primary Care Doctor, Greenville, NC;
e. Dr. Michael Coyle, ECU Physicians, Greenville, NC;
f. Dr. Richard Rumley, Infectious Diseases, Greenville, NC;
9. I was diagnosed with ciguatera poisoning both in the Bahamas and at Pitt County
Memorial (now Vidant Hospital).
10. My treatment in the Bahamas was minimal. I was in the hospital for one night and was
given IV fluid, Solumidrol and Cipro. I am amenable to signing a release for these
records to Defendants.
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11. I am still and for the foreseeable future going to experience symptoms which include,
numbness in my hands, feet and tongue, headaches and memory issues. I have been
informed by my physicians that there is no treatment for this.
12. T.J. Lewis made all the arrangements with the Atlantis prior to my arrival. Mr. Lewis
never informed me that we would have to sign any forum selection clause. At no point
before my trip down to the Atlantis in 2000, 2003 or 2009 was I aware of the forum
selection clause. Nor at any time was anyone, including my husband authorized to sign
my name to any such document.
13. In 2000 I visited the Atlantis with my mother, Jennie Simmons, who planned and booked
the trip. At no time in 2000 before or after my visit to the Atlantis was I ever given
notice of the forum selection clause provided by Defendants.
14. In 2003 I visited the Atlantis with my friend, Emily Stallings, who planned and booked
the trip. At no time in 2003 before or after my visit was I ever given notice of the forum
selection clause provided by Defendants.
15. In 2000 and 2003 when I visited my name was Amy Jo Hilewitz.
16. At no point after my husband and I arrived at the Atlantis was the contents of the forum
selection clause explained or read to me. After instituting this lawsuit was the first time I
had even heard of it.
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FURTHER AFFIANT SAYETH NAUGHT
__________________________
Amy Howard
SWORN TO AND SUBSCRIBED before me this day of ________, 2013, by Amy
Howard, who are personally known to me or who produced ___________________________ as
identification.
Notary Public, State of North Carolina
My Commission Expires:
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EXHIBIT 2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 12-22184-FAM
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; PARADISE
ISLAND LIMITED, a Bahamian company
Defendants.
________________________________________/
AFFIDAVIT OF KENNETH HOWARD
STATE OF NORTH CAROLINA :
PITT COUNTY :
BEFORE ME personally appeared KENNETH HOWARD who has taken an oath and
swears and affirms that the following allegations are true and correct to the best of their
knowledge and belief.
1. I, KENNETH HOWARD, am both over the age of eighteen (18) and have personal
knowledge of the facts contained herein and am otherwise fully competent to make this
affidavit.
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2. I am a citizen of the United States and domiciled in and a resident of the State of North
Carolina.
3. I am producing this affidavit in response to Defendants’ Motion to Dismiss [D.E. 22].
4. T.J. Lewis made all the arrangements with the Atlantis prior to my arrival. Mr. Lewis
never informed me that we would have to sign any forum selection clause. At no point
before my trip down to the Atlantis in 2009 was I given advance notice of the forum
selection clause. At no time did my wife, Amy Howard, give me authority to sign her
name to a forum selection clause.
5. I was never made aware of the contents of the forum selection clause. I did not read the
forum selection clause and consequently did not inform my wife of its contents. Upon
check in I was given papers which I signed and I placed my wife’s name in persons
travelling with me.
FURTHER AFFIANT SAYETH NAUGHT
__________________________
Kenneth Howard
SWORN TO AND SUBSCRIBED before me this day of ________, 2013, by Kenneth
Howard, who are personally known to me or who produced ___________________________ as
identification.
Notary Public, State of North Carolina
My Commission Expires:
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EXHIBIT 3
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UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
M iami Division
Case Number: 12-22546-CIV-M ARTINEZ-M CALlLEY
M YRNA M ARKS,
Plaintiff,
VS.
KERZNER INTERNATIONAL BAHAM A S
LIM ITED , a Baham ian company; KERZNER
INTERNATIONAL LIMITED, a Bahamian
company; ISLAND HOTEL COM PANY
LIM ITED, aBahamiancompanyiandpAM DlsE
ISLAND LIM ITED, a Baham ian company,
Defendants.
/
ORDER DENYING M OTION TO DISM ISS
THIS CAUSE came before the Court upon Defendants Kerzner lnternational Bahamas
Limited, Kerzner lnternational Limited, lsland Hotel Company Limited and Paradise lsland
Limited's (collectively trefendants'') Motion to Dismiss (D.E. No. 16). Defendants seek to
dismiss Plaintiff Myrna Marks' (çdplaintiff ') Complaint on the basis of forum non conveniens
and/or failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, this Court denies the motion to dismiss.
1. Background
The Complaint alleges that Plaintiff, a New Jersey resident, ldslipped and fell on a slippery
surface near an area referred to as the icove,' an area that is part of the Atlantis Resort pool
facilities.'' (D.E. No. 1 at !! 4, 36). Plaintiff claims she Cçsuffered severe personal injuries
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including a broken wrist.'' 1d. at ! 37.
The Complaint msserts Defendants were negligent in their failure to install signs around
the pool area warning the area was slippery, failing to inspect and maintain the pool area ,
allowing the dangerous conditions to be created and remain, failing to select a proper surface that
would not become unreasonably slippery when wet and failing to warn of tht dangerous
conditions. Plaintiff f'urther alleges dnmages including severe personal injury to her body and
extremities, physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement,
physical handicap and loss of earning capacity.
II. Legal Standard
$$The doctrint of forum non conveniens permits a court with venue to decline to exercise
its jtlrisdiction when the parties' and court's own convenience, as well as the relevant public and
private interests, indicate that the action should be tried in a different fonzm.'' Pierre-L ouis v.
Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009). A defendant must establish the following
to obtain dismissal on the grounds oîforum non conveniens'.
(i) that an adequate alternative forum is available, (ii) that relevant public and private interests weigh in favor of dismissal, and (iii) that the plaintiff can reinstate his suit in the alternative forum
without undue inconvenience or prejudice. Pertinent private interests of the litigants include relative ease of access to evidence
in the competing fora, availability of witnesses and compulsory
process over them, the cost of obtaining evidence, and the
enforceability of ajudgment. Relevant public interests include the familiarity of the courtts) with the governing law, the interest of any foreign nation in having the dispute litigated in its own courts,
and the value of having local controversies litigated locally.
1d. (quoting f iquidation Comm 'n ofBanco lntercontinental, S.A. v. Renta, 530 F.3d 1339,
1356-57 (1 1th Cir. 2008) (quotations and citations omittedl).Private factors and public factors
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should be considered diin all cases.'' f eon v. Millon Air , Inc., 251 F.3d 1305, 131 1 (1 1th Cir.
2001). étlWlith regard to the weighing of the private interests, the plaintiffs' choice of forum
should rarely be disturbed tmless the balance is strongly in favor of the defendant .'' SM E Racks,
Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1 101 (1 1th Cir. 2004)
(quotations omitted). ls-l-his prestzmption in favor of the plaintiffs' initial forum choice in
balancing the private interests is at its strongest when the plaintiffs are citizens, residents, or
corporations of this country.'' f#. Further, Gçpositive evidence of unusually extreme
circumstances must be present and . . . the court must be thoroughly convinced that material
injustice is manifest before ousting a domestic plaintiff from this country's courts.'' 1d. at 1 102.
111. Analysis
Defendants seek to dismiss the complaint on the basis of forum non conveniens because
they assert the Bahamas is a more convenient and appropriate forum for resolution. (D.E. No.
16). Plaintiff argues that Defendants have failed to meet their blzrden of presenting tdpositive
evidence of unusually extreme circumstances and material injustice'' and the private interest
factors weigh heavily against dismissal. (D.E. No. 21). This Court agrees that dismissal on the
basis of forum non conveniens is inappropriate.
A . Adequacy of Alternate Forum
Defendants do not contest that the Bahamas provides an available and adequate forum.
(D.E. No. 16). Moreover, Defendants assert that they are amenable to process in the Bahnmas,
consent to jurisdiction in the Bahamas and Bahamian courts are competent to resolve negligence
claims such as the claims raised here. Id Therefore, this Court finds the Bahamas provides an
available and adequate forum . See Sun Trust Bank v. Sun Int 1 Hotels, L td., 184 F. Supp. 2d
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1246, 1262-63 (S.D. Fla. 2001).
B. The Private Interest Factors
Defendants argue that the private interest factors support dismissing Plaintiff s complaint
pursuant to forum non conveniens. This Court disagrees.
dtprivate factors the district court should consider when analyzing a forum non conveniens
claim include the relative ease of access to sources of proof, access to unwilling and willing
witnesses, ability to compel testimony, the possibility of view of premises, and the enforceability
of ajudgment.'' Wilson v. Island Seas Investments, L td., 590 F.3d 1264, 1271 (11th Cir. 2009)
(citing Gulfoil Corp. v. Gilbert, 330 U.S. 501 (1947:.ûtThese factors are not exhaustive, and
liL (citing King v. Cessna Aircrajt Co. ,the district court should be flexible in applying them.''
562 F.3d 1374, 1381-82 (1 1th Cir.2009)). Additionally, Etthe relevant forum for purposes of the
federal (forum non conveniens) analysis is the United States as a whole.'' Wilson, 590 F.3d at
1271; Esjèld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir.2002) (ttlFlederal courts,
in the forum non conveniens context, do not focus on the colmection between the case and a
particular state, but rather on the connection of the case to the United States as a whole.'').
1. Access to Evidence
Ssperhaps the most important tprivate interest' of the litigants is access to evidence.''
Ford v. Brown, 319 F.3d 1302, 1308 (1 1th Cir. 2003). This interest consists of factors such as
Staccess to proof, availability of compulsory process for attendance of unwilling witnesses, and
the cost of obtaining witnesses.'' Id
Defendants argue that the vast majozity of evidence is in the Bahamas and outside the
subpoena power of this Court.(D.E. No. 1 6). Defendants assert that the accident scene is in the
Bahnmas which prohibits a Floridajury from inspecting the scene and expert witnesses on
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liability would have to travel to the Bahamas and then testify in Florida. Plaintiff states that
because Defendants own and operate the area where Plaintiff fell , there are no Gtunusually
extreme circumstances'' or ççmanifest injustice'' that would prevent them access to their own
property for the purpose of an inspection. (D.E. No. 21). Defendants have not met their btzrden
in showing why the accident scene cnnnot be suffciently presented to the jury through
photographs, video, topographical maps, and testimony of resort employees. See Campbell v.
Starwood Hotels & Resorts Worldwide, Inc., No. 07-61744-C1V, 2008 W L 2844020, at *6 (S.D.
Fla. 2008) (tinding that photographs and witness testimony were sufficient to convey accident
scene and that in-person viewing was not necessary).
Defendants also state that records located in the Bahamas include those relating to: (i)
inspection and maintenance of the accident site; (ii) construction of the pool and materials used;
(iii) inspection of the area and routine patrols; (iv) medical treatment at Doctors Hospital or
Princess Margate Hospital and treating physicians; and (v) EMs/nmbulance transport to Doctors
Hospital or Princess Margate Hospital. (D.E. No. 16). Plaintiff asserts that such records can be
copied and provided with little effort and the discovery process provides for such access. (D.E.
No. 21). Plaintiff also asserts that she is willing to sign any necessmy release for Defendant to
obtain medical records from the Bahnmas and that a1l of her substantive treatment occtlrred in the
United States. 1d. This Court finds that no evidence has been presented that this documentation
is burdensome and could not be transported to this District.Also, çdlclonsidering that the
overwhelming bulk of Plaintiff s medical treatment took place in the United States, the Court
concludes that these burdens strongly outweigh any burden that the Defendants may have in
obtaining Bahnmian medical evidence if the case is heard in this Court.''Campbell, 2008 W L
2844020, at *3.
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Further, Plaintiff states there are records that she would not be able to obtain without the
compulsory process of the United States Courts. Id. For example, Plaintiff s ex-employer, who
allegedly terminated her from employment for her inability to lift patients , is an Am erican
company whose records could not be obtained without the compulsory process of the United
States Courts. 1d. This weighs against dismissal.
Defendants also argue that other than Plaintiff no witnesses m'e located in the United
States, many of the listed Bahamian witnesses are not related to Defendant and could not be
compelled to give documents or testimony if the litigation occurs in the United States and
Defendants may wish to subpoena third-party witnesses or third-party employers in the Bahamas
which they could not compel to testify if the litigation occurs in the United States. (D.E. No. 16).
Plaintiff asserts that many of the witnesses listed in Defendants' motion to dismiss are employees
of Defendants and therefore under their control and could be compelled to testify. (D.E. No. 21).
The list of possible witnesses provided by Defendants includes, generally, Atlantis resort
personnel, Atlantis maintenance personnel, individuals involved in routine patrols and
inspections of the pool area, surveillance staff and lifeguards working at the time of the incident.
(D.E. No. 16). Defendant specitically list the Shift Manager, Senior Vice President, Director of
Projects, Assistant Project Manager and Assistant Chief Engineer.lt appears all of these
potential witnesses are employees of Defendantsl and are thus çsunder the defendantls'j control''
and can easily travel to M inmi. See Sun Int '1 Hotels, L td , 184 F. Supp. 2d at 1264. Defendants
do not allege any actual difticulty in obtaining depositions and evidence from these Bahnmian
1 Plaintiff also asserts that employees of the Comfort 11m (where Defendant was staying when she was injured) would likely not provide testimony that would be an essential element to Defendants' defense and, regardless, is now owned by Defendants or its subsidiary. Defendants
do not appear to dispute this.
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witnesses. dtgMsithout any actual allegations that the Defendants are being refused access to this
evidence, the Court will not infer that trying this case in the Bahamas is the only possible way
that this evidence could be obtained by the Defendants.'' Campbell , 2008 W L 2844020, at *3.
Further, Plaintiff has witnesses that m'e located in the United States such as her medical providers
and family members including her sister who was with her when she fell. GdRegardless of which
forum is used, somt witnesses will be beyond the subpoena power of the eourt that is
adjudicating the case. The most important witnesses, induding most of the eyewitnesses and the
medical providers who provided the vast majority of the care to the Plaintiff, are tither located in
the United States or have already been deposed in the Bahamas.''Id at *6. Although the
inability to compel the attendance of certain Bahamian witnesses not under the control of
Defendants may weigh in favor of Defendants, a majority of witnesses listed by Defendants are
under their control and could travel to this Court for trial. Additionally, Plaintiff lists witnesses
that are located in the United States, including her sister who was with her when she fell. As
such, the availability of witnesses weighs in favor of Plaintiff.
As for the practicalities and costs of litigation in Florida as opposed to the Bahamas, this
factor weighs in favor of Defendants. The cost of transporting Bahnmian witnesses to Florida
versus not transporting them at all is greater than the cost of Plaintiff who would have to
transport her witnesses regardless of whether the litigation occurs in the Bahamas or Florida.
However, the private factors, with the exception of the cost of litigation, balance in
Plaintiff s favor and support the presumption in favor of a Plaintiff s choice of forum.
Defendants have failed to show çsunusually extreme circum stances'' that persuade the Court that a
'tm aterial in-justice'' would result if it retained J'urisdiction.SME Alc/o', 382 F.3d at 1101.
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C. The Public Interest Factors.
Next, this Court exnmines the public interest factors.
The public interest factors in the fol'um non conveniens analysis
include: a) administrative congestion resulting from cases being tried at a site other than that of their origin; b) the burden of jury duty on a community that has no relationship to the cause of
action; c) the chosen forum's interest in the dispute; d) the alternative forum's interest in the dispute; and e) the diftlculties associated with applying foreign law.
Sun Trust Bank, 184 F. Supp. 2d at 1265-66 (ching Gufoil, 330 U.S. at 508-09). Defendants
argue that the public interest fadors weigh in favor of dismissal because: (i) the lawsuit lacks a
connection to Miami and should be dismissed to conselwe judicial resomces; (ii) there is no local
interest in the controversy; (iii) Bahamian law govems the dispute; and (iv) the dispute has no
connection to Florida, jury duty should not be impostd on the citizens of Florida. (D.E. No. 16).
This Court fnds that although the Bahamas has a stake in resolving the lawsuit since it occurred
locally, this is outweighed by the lûstrong federal interest in maldng sure that plaintiffs who are
United States citizens generally get to choose an American fonzm for bringing their suit, rather
than having their case relegated to a foreign jurisdiction.'' SME Alc/o', 382 F.3d at 1 104.
Further, if Bahamian 1aw is applicable, because it is derived from English common 1aw and is
similar to American law, this weighs in favor of Plaintiff and her choice of forum. See Sun
Trust, 184 F. Supp. 2d at 1263. With regard to imposing jury duty on the citizens of Florida, this
appears to weigh in favor of Defendants but this burden receives less weight and is still
outweighed by Plaintiff s interest in choosing an American forum .M atthews v. Whitewater West
lndustries, L /(f , No. 1 1-24424-C1V, 2012 WL 1605184, at * 12 (S.D. Fla. May 8, 2012). As
such, the public interest factors weigh in favor of Plaintiff.
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D. Failure to State a Claim
Defendants further seek to dismiss the Complaint on the basis that: (i) Plaintiff fails to
specify which factual allegations are incorporated by reference into each count making it the
equivalent of a shotgun pleading; and (ii) Count 11 for damages fails to state a legally cognizable
cause of action. (D.E. No. 16). This Court disagrees. The Complaint contains sufticient facts to
identify claims with sufficient clarity. See Beckwith v. Bellsouth Telecomm., Inc., 146 F. App'x
368, 371 (1 1th Cir. 2005). Further, it does not appear that the section entitled çramages'' is
actually Count 11 of the Complaint and Plaintiff states as much in its response to the motion to
dismiss. Accordingly, this Court finds that dismissal is not appropriate. It is hereby:
ORDERED AND ADJUDGED that:
1. Defendants' Motion to Dismiss (D.E. No. 16) is DENIED. Defendants shall file an
answer to the complaint on or before February 25. 2013.
DONE AND ORDERED in Chambers at Miami, Florida, this 1) day of February, 2013. %.
JOSE M ART Z UNIT STATES DI TRICT JU DGE
Copies provided to: M agistrate Judge M cAliley
All Counsel of Record
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EXHIBIT 4
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Case: 11-11860 Date jfJlellf:lR)4/24/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN TIffi UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUI FILED U,S, COURT OF APPEALS
ELEVENTH CIRCUIT No. 11-11860 APRIL24,2012
JOHN LEY CLERK
D.C. Docket No.1 :08-cv-20662-JAL
BEVERLY MCLANE, BRAD MCLANE, her husband,
Plaintiffs-Appellants,
versus
LOS SUENOS MARRIOTT OCEAN AND GOLF RESORT, a Costa Rican Company, et. aI.,
Defendants,
MARINA DE HERRADURA, SA, d.b.a. Los Suenos Marriott Ocean and GolfResort, EL SUENO RESORT, a Delaware Limited Liability Company, d.b.a. Los Suenos Resort and Marina, MARRIOTT INTERNATIONAL, INC., a Foreign Company, LOS SUENOS RESORT AND MARINA, GUAPIZUL, SA, a Costa Rican Company, STAY IN COSTA RICA, SA, a foreign Corporation, CONSTRUCTORA COPT, LIMITADA,
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Case: 11·11860 Date ~RaDf:lI)4(24(2012 Page: 2 of 7
Defendants-Appellees.
Appeal from the United States District Court for the Southern District ofFlorida
(April 24, 2012)·
Before HULL and FAY, Circuit Judges, and WALTER: District Judge.
PER CURIAM:
Plaintiffs-Appellants Beverly McLane and Brad McLane appeal the district
court's grant ofDefendant-Appellee Marriott International, Inc. 's ("Marriott")
motion to dismiss on the basis of/arum non conveniens.
1. BACKGROUND
United States citizens Beverly McLane and Brad McLane, her husband,
went on vacation in Costa Rica, where they stayed at the Los Suenos Marriott
Resort ("the Resort"). During their stay, Brad McLane chartered a boat, the Terry
Lee, owned by a Costa Rican boat charter company, Costa Rica Dreams. The
McLanes boarded the Terry Lee, operated by Costa Rican citizens Captain Hugo
Nunez Barrios ("Nunez") and his mate, from a marina adjacent to the Resort.
During the voyage, the boat hit a large wave and Beverly McLane was thrown to
'Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation.
2
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Case: 11·11860 . Date ~aElJlf: lI)4/24/2012 Page: 3 of 7
the deck, fracturing a vertebrae.
Beverly McLane brought suit to recover for her injuries, alleging negligent
operation of the boat, and Brad McLane filed a loss of consortium claim. In their
Third Amended Complaint, Plaintiffs named EI Sueno Resort, LLC (the developer
of the Resort), Marina De Herradura, S.A. (owner of the Resort), and Marriott
(operator of the Resort) as defendants. The former two parties were dismissed for
lack ofpersonal jurisdiction, and Marriott was dismissed on the basis offorum non
conveniens. In this appeal, the McLanes contest the district court's grant of
Marriott's motion to dismiss.
II. STANDARD OF REVIEW
"The forum non conveniens determination is committed to the sound
discretion of the trial court. It may be reversed only when there has been a clear
abuse of discretion; where the court has considered all relevant public and private
interest factors, and where its balancing of these factors is reasonable, its decision
deserves substantial deference." Piper Aircraft Co. v. Reyno, 454 U.S. 235,257,
102 S. Ct. 252, 266 (1981). The district court abuses its discretion when it "fails to
balance the relevant factors." La Seguridad v. Transytur Line, 707 F.2d 1304,·
1308 (II th Cir. 1983).
III. DISCUSSION
3
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.A party moving for dismissal based onfarum non conveniens must establish
that (1) there is an alternate .forum for the litigation that is both adequate and
available, (2) the balance ofprivate and public factors favors dismissal, and (3) the
plaintiff is able to reinstate his suit in the alternate forum without undue
inconvenience or prejudice. Leon v. Millon Air, Inc., 251 F.3d 1305,1311 (11th .
Cir.2001). Appellants concede that Costa Rica is an adequate and available
fonun, so we will not discuss this issue.
A district court must consider the following private factors when ruling on a
motion to dismiss for forum non conveniens: the relative ease of access to sources
ofproof; the availability of compulsory processes for unwilling witnesses; the cost
Ofwitnesses; the ability to view premises, if such viewing is relevant and
appropriate to the case; and all other practical problems relating to the ease,
expeditiousness, and expense oftrial. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1331
(11 th CiT. 20 11). In its evaluation of these private factors, the district court should
"weigh[] in the balance a strong presumption against disturbing plaintiffs' initial
forum choice." Wilson v. Island Seas Invs., Ltd., 590 FJd 1264, 1269 (11 th Cir.
2009). "This preslunption in favor ofthe plaintiffs' initial forum choice in
balancing the private interests is at its strongest when the plaintiffs are citizens,
residents, or corporations ofthis country." 5MB Racks, Inc. v. Sistemas Mecanicos
4
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Case: 11-11860 Date Ifllallf:!Q4f24/2012 Page: 5 of 7
Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir. 2004)(citing Leon, 251
FJd at 1311). This circuit has "long mandated that district courts 'require positive
evidence ofunusually extreme circumstances, and should be thoroughly convinced
that material injustice is manifest before exercising any such discretion as may
exist to deny a United States citizen access to the courts of this country.''' Id.
(quoting La Seguridad, 707 F.2d at 1308 n.7). However, "dismissal should not be
automatically barred when a plaintiffhas filed suit in his home forum. As always,
if the balance ofconveniences suggests that trial in the chosen forum would be
unnecessarily burdensome for the defendant or the court, dismissal is proper."
Piper Aircraft Co., 454U.S. at 255 n.23, 102 S. Ct. at 266.
The district court's order identified the private interest factors and examined
each individually, determining whether that factor alone weighed in favor of
dismissal. First, the district court looked at relative ease ofaccess to sources of
proof. Finding that many of the material witnesses needed to resolve issues of
liability resided in Costa Rica, including Captain Nunez and his mate, the district
court determined that this· factor weighed in favor ofdismissal. Next, the district
court assessed the availability of compulsory processes. Because Captain Nunez
and his mate cannot be compelled to testify in this case, the district court found that
this factor also weighed in favor of dismissal. A view of the premises was not
5
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Case: 11-11860 Date F{6Emf:lB)4/24/2012 Page: 6 of 7
found to be necessary, so that factor was given little weight. Last, the district court
inquired into other practical problems and found that the inability ofMarriott to
implead Nunez, his mate, and Costa Rica Dreams as defendants weighed in favor
of a trial in Costa Rica. After conducting this review of the individual private
factors, the district court stated in summary that private interest factors clearly
supported dismissal pur~uant to forum non conveniens.!
We find that the district court adequately identified the private factors
involved in this case but committed an abuse of discretion in its balancing of them.
The district court should have weighed the presumption against disturbing the
plaintiffs' choice in its balancing ofprivate factors, but there is no indication that it
did SO.2 Furthermore, nowhere in the opinion did the district court acknowledge
lIn its opinion, the district court properly considered both Plaintiffs' and Defendants' arguments weighing in favor ofand against dismissal. We have considerably condensed om summary of the district comt's evaluation to focus on the only part we find to be in error: the exclusion ofthe presumption against disturbing plaintiffs' choice from the district comt's balancing ofprivate factors.
2The district comt mentioned the presumption against disturbing the plaintiffs' forum choice in its introduction to the order, but failed to mention the presumption at all in its . application and balancing of the factors. We have held that a recitation of the law regarding the presumption is not sufficient; this presumption must be integrated into the balancing of the private factors. See 8ME Racks, 382 F.3d at 1102 ("While the district court referenced the presumption in favor ofplaintiffs' choice of forum in the introductory portion ofits discussion, the district comt failed to articulate the relevant standards and failed to apply any presumption in its analysis."). In SME Racks, we further stated that, "even if we were to assume that the district comt correctly understood the proper legal standard, the district court never mentions the presumption in favor of the plaintiffs or incorporates the presumption into its calculus once it actually engages in weighing the private interests." Id.
6
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that this presumption is at its strongest when plaintiffs are U.S. citizens, and
nowhere did the district court point to ''unusually extreme circumstances" or
manifest extreme injustice that would merit denying a U,S. citizen access to U.S.
courts. SME Racks, 382 F.3d at 1101. In this circuit, a district court's failure to
weigh the presumption in favor of the plaintiffs into the balancing ofprivate
factors has been held to be a clear abuse of its discretion. See id. at 1103.
Because it is unclear whether the district court, applying the presumption
correctly, would conclude that dismissal is nevertheless appropriate, we reverse
and remand for reconsideration. Given that we are reversing and remanding on the
basis ofthe district court's errors in balancing the private factors, we do not need
to continue with our analysis of the public interest factors. 3 See Wilson, 590 F.3d
at 1272. Nothing herein suggests the ultimate outcome. Cf Tazoe, 631 F.3d at
1335 (concluding the district court correctly dismissed a complaint by family
members of a U.S. citizen who died in a plane crash in Brazil despite the added
deference given to the plaintiffs' choice offorum), .
REVERSED AND REMANDED.
3 Public interest factors are to be considered when the balance ofprivate interest factors is not clear. See La Seguridad, 707 F.2d at 1307..
7
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EXHIBIT 6
Case 1:12-cv-22184-FAM Document 25-6 Entered on FLSD Docket 03/21/2013 Page 1 of 4
Kerzner Corporate & Regional | Kerzner International Resorts
http://www.kerzner.com/kerzner-careers/search-careers/kerzner-corporate/[11/3/2012 4:30:16 PM]
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10/10/2012 Leisure Sales Coordinator 207525 Sales Ft. Lauderdale, FL
09/24/2012 Director of National Accounts - Group Sales 207071 Sales
Ft. Lauderdale, FL
09/24/2012 Senior Systems Analyst - JDEdwards 206677 Information Technology
Ft. Lauderdale, FL
09/17/2012 Senior Programmer Analyst - PeopleSoft Human Resources 206315
Information Technology
Ft. Lauderdale, FL
08/30/2012 Conference Planning Administrative Assistant 207143 Administration
Ft. Lauderdale, FL
08/29/2012 Product Support Specialist 206671 Information Technology
Ft. Lauderdale, FL
08/22/2012 Casino Marketing Analyst 207072 Casino Linwood, NJ
08/17/2012 Atlantis Travel Specialist 207024 Call Center Operations
Ft. Lauderdale, FL
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Case 1:12-cv-22184-FAM Document 25-6 Entered on FLSD Docket 03/21/2013 Page 2 of 4
Kerzner Corporate & Regional | Kerzner International Resorts
http://www.kerzner.com/kerzner-careers/search-careers/kerzner-corporate/[11/3/2012 4:30:16 PM]
Case 1:12-cv-22184-FAM Document 25-6 Entered on FLSD Docket 03/21/2013 Page 3 of 4
Kerzner Corporate & Regional | Kerzner International Resorts
http://www.kerzner.com/kerzner-careers/search-careers/kerzner-corporate/[11/3/2012 4:30:16 PM]
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Case 1:12-cv-22184-FAM Document 25-6 Entered on FLSD Docket 03/21/2013 Page 4 of 4
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