Jose Barrios v. Ginn-La West End, LTD.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13004 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 4, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-00975-TJC-TEM

JOSE BARRIOS,

lllllllllllllllllllll Plaintiff - Appellant,

versus

GINN-LA WEST END, LTD.,
GINN FINANCIAL SERVICES,
GINN DEVELOPMENT COMPANY, LLC,
ROBERT F. MASTERS, II,
EDWARD R. GINN, III,

lllllllllllllllllllll Defendants - Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(March 4, 2011)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:
Jose Barrios contracted to purchase undeveloped land from Ginn-La West

End, Ltd., a Bahamian corporation with its principal place of business in Florida,

as part of a proposed subdivision to be built on Grand Bahama Island. Barrios

sued Ginn-La and its affiliates to rescind the contract, alleging that the defendants

violated various provisions of the Interstate Land Sales Full Disclosure Act, 15

U.S.C. § 1701 et seq.

The defendants moved to dismiss the plaintiffs’ complaint for improper

venue pursuant to Federal Rule of Civil Procedure 12(b)(3), arguing that the

contract contained an enforceable forum-selection clause that precluded venue in

the Middle District of Florida. The forum-selection clause designated the

Bahamas as the exclusive venue for any litigation “concerning the interpretation,

construction, validity, enforcement, performance of, or related in any way to, this

Contract or any other agreement or instrument executed in connection with this

Contract.” In response to Ginn-La’s motion to dismiss, Barrios contended that

venue was proper in the Middle District of Florida. Barrios argued that the

defendants who were not signatories to the contract could not invoke the forum-

selection clause and that the forum-selection clause was unenforceable because the

contract itself was unlawful.

2
The district court dismissed without prejudice Barrios’ claim on the basis of

improper venue and adopted the reasoning of the district court in Liles v. Ginn-La

West End, Ltd., No. 3:08-CV-1217, 2010 WL 5671779 (M.D. Fla. Mar. 30, 2010)

(Liles I). In Liles I, the district court was presented with claims against the same

defendants that were substantially similar to the claims brought by Barrios in this

case. The district court in Liles I granted Ginn-La’s motion to dismiss for

improper venue because it found that the contract’s forum-selection clause was

enforceable. This Court recently affirmed the district court’s decision in Liles I

and, like the district court in this case, also adopted the reasoning of the district

court in Liles I. See Liles v. Ginn-La West End, Ltd., No. 10-11943, 2011 WL

284500 (11th Cir. Jan. 28, 2011) (Liles II).

II.

Barrios’ appeal from the district court’s dismissal of his complaint presents

the same issues this Court decided in Liles II.1 The only issues that Barrios has

1
Barrios makes several arguments for the first time on appeal, but we decline to address
them. See Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1292 (11th Cir. 2003)
(arguments not raised in the district court are waived on appeal). In any event, because we
affirmed the district court’s rejection in Liles I of arguments identical to those raised by Barrios
for the first time on appeal, we would reject his arguments for the same reasons. See Liles II,
2011 WL 284500 at *3–*10 (discussing why the contract’s forum-selection clause was not the
product of fraud or overreaching and why its enforcement does not violate a strong public policy
of the United States); id. at *4–*5 (recognizing that, although the contract contained a choice-of-
law provision providing for the exclusive application of Bahamian law to issues arising out of the
contract, “there is no dispute that the contracts incorporate ILSA disclosure rights and remedies”

3
properly preserved for appellate review, however, are those which he presented to

the district court in his response to Ginn-La’s motion to dismiss: whether the

individual defendants may invoke the forum-selection clause when they were not

parties to the contract, and whether the forum-selection clause is unenforceable

because the contract itself was unlawful. The district court in Liles I addressed

issues identical to those raised by Barrios’ appeal, and its reasoning, which this

Court adopted on appeal, applies equally to Barrios’ claims. See Liles II, 2010

WL 284500 at *5, *11. We are persuaded by that same reasoning and follow it

again here. Accordingly, in light of our decision in Liles II, the district court’s

order dismissing Barrios’ complaint without prejudice for improper venue

pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure is AFFIRMED.

and “the contracts explicitly incorporate, and confer on Plaintiffs, ILSA-based rescission rights
under United States law”); id. at *11 (concluding that “all the Ginn Defendants are entitled to
invoke the Bahamian forum-selection clause in Plaintiffs’ contracts” under a theory of equitable
estoppel).