Elaine Pappas v. Kerzner International Bahamas Limited
585 F. App'x 962
11th Cir.2014Background
- Elaine and Nicholas Pappas sued Kerzner in federal court (diversity) for negligence and loss of consortium arising from Elaine’s injuries on a water slide at the Atlantis Resort in the Bahamas.
- Reservation process: Pappases clicked to acknowledge online terms and conditions and received a confirmation email with a link to those terms a month before arrival.
- At check-in both Pappases signed an "Acknowledgement, Agreement and Release" containing a forum-selection clause designating Bahamian law and the Supreme Court of the Bahamas as the exclusive venue.
- Kerzner moved to dismiss based on the forum-selection clause; the district court initially dismissed under Rule 12(b)(3), later reconsidered in light of Atlantic Marine, and then granted dismissal under forum non conveniens per Atlantic Marine.
- The Eleventh Circuit reviewed enforceability of the clause de novo and reviewed the forum non conveniens dismissal for abuse of discretion, and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of forum-selection clause | Pappas: clause unenforceable because they lacked adequate notice before signing at check-in | Kerzner: clause was reasonably communicated via online terms and confirmation email before arrival | Clause enforceable; court found notice was reasonably given (click-through + confirmation email) |
| Adequacy of electronic notice | Pappas: terms were long/small print and email only linked terms, so notice was insufficient | Kerzner: Pappases clicked to agree to terms and received an email link; failure to read is not excused | District court’s factual findings that notice occurred were not clearly erroneous; clicking to agree sufficed |
| Proper procedural vehicle to enforce clause | Pappas: dismissal under Rule 12(b)(3) was improper after Atlantic Marine | Kerzner: Atlantic Marine requires forum non conveniens/§1404 approach when clause points to non-federal forum | Atlantic Marine governs; district court correctly applied modified forum non conveniens doctrine |
| Whether dismissal under Atlantic Marine was warranted | Pappas: public-interest factors favor U.S. forum; clause should not bar suit here | Kerzner: public-interest factors favor Bahamas (local interest, applicable law, relation to place) | District court did not abuse discretion; public-interest factors favored dismissal to the Bahamas |
Key Cases Cited
- Atlantic Marine Constr. Co. v. United States Dist. Court, 134 S. Ct. 568 (2013) (when clause selects non-federal forum, enforce by forum non conveniens; plaintiff bears burden to show dismissal unwarranted)
- Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009) (forum-selection clauses presumptively valid; test for reasonable communication)
- Bailey v. ERG Enters., LP, 705 F.3d 1311 (11th Cir. 2013) (prior practice of treating clause-based dismissal as a Rule 12(b)(3) venue question)
- Franze v. Equitable Assurance, 296 F.3d 1250 (11th Cir. 2002) (failure to read lengthy documents does not excuse assent)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (standard of review and deference for forum non conveniens dismissals)
- P & S Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804 (11th Cir. 2003) (enforceability of forum-selection clauses in diversity cases governed by federal law)