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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11773
________________________
D.C. Docket No. 1:14-cv-24399-JLK
JAMES FEGGESTAD,
KAREN FEGGESTAD,
his wife,
Plaintiffs - Appellants,
versus
KERZNER INTERNATIONAL BAHAMAS
LIMITED,
a Bahamian company,
KERZNER INTERNATIONAL LIMITED,
a Bahamian company,
ISLAND HOTEL COMPANY LIMITED,
a Bahamian company,
PARADISE ISLAND LIMITED,
a Bahamian company,
BROOKFIELD ASSET MANAGEMENT INC.,
a Canadian company,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 13, 2016)
Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.
DUBINA, Circuit Judge:
Plaintiffs/Appellants, James and Karen Feggestad (the “Feggestads”), appeal
the district court’s order dismissing their complaint against defendants/appellees,
Kerzner International Bahamas Limited, Kerzner International Limited, Island
Hotel Company Limited, Paradise Island Limited, and Brookfield Asset
Management Inc. (referred to collectively as “Kerzner”), on the basis of a valid
forum selection clause. After reviewing the record, reading the parties briefs and
having the benefit of oral argument, we affirm the district court’s judgment of
dismissal.
*
Honorable Richard W. Goldberg, Judge of the United States Court of International
Trade, sitting by designation.
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I. BACKGROUND
A. Facts
The Feggestads made reservations at the Atlantis Resort on Paradise Island,
Bahamas (“Atlantis”) and received a reservation confirmation via their email
address. The confirmation contained a section titled “Terms and Conditions” and
included a hyperlink advising guests to view the other terms and conditions at
http://www.atlantis.com/reservations/TermsAndConditions.aspx. This link
provided advance notification that any dispute between the guest and the hotel or
any affiliated company must be litigated exclusively in the Bahamas and that upon
arrival at the Atlantis, the guest would be required to sign a registration form that
included a Bahamian forum selection clause. When the Feggestads checked into
the Atlantis, the resort representative asked them to sign a registration card. When
Mr. Feggestad asked why, the representative explained that it was necessary for the
guests to charge incidentals to their hotel bill. The registration card had a written
agreement on the back titled “ACKNOWLEDGEMENT, AGREEMENT AND
RELEASE – READ BEFORE SIGNING.” The eight (8) paragraph agreement
stated, in pertinent part, that “I agree that any claims I may have against the Resort
Parties resulting from any events occurring in The Bahamas shall be governed by
and constructed in accordance with the laws of the Commonwealth of The
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Bahamas, and further, I irrevocably agree to the Supreme Court of The Bahamas as
the exclusive venue for any such proceedings whatsoever.” (R. DE 13-3.) Mr.
Feggestad signed the agreement. Subsequently, several days after their arrival at
the Atlantis, Mr. Feggestad slipped and fell on a wet sidewalk and sustained severe
personal injuries.
B. Procedural History
In November 2014, the Feggestads filed a complaint in the United States
District Court for the Southern District of Florida alleging negligence against the
owners and operators of the Atlantis. Specifically, the complaint alleged that
James Feggestad suffered personal injuries when he slipped and fell on a sidewalk
at the Atlantis and that his wife Karen suffered loss of consortium. Kerzner filed a
motion to dismiss based on the forum selection clause contained in the registration
agreement and based on the doctrine of forum non conveniens. In their reply to
Kerzner’s motion, the Feggestads submitted their affidavits and affidavits of their
traveling companions, stating that the front desk personnel at the Atlantis
misrepresented the purpose of their signature on the registration card. The district
court granted Kerzner’s motion on the basis of the valid forum selection clause,
and the Feggestads then perfected this appeal.
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II. ISSUE
Whether the district court erred in granting Kerzner’s motion to dismiss on
the basis of a valid forum selection clause.
III. STANDARDS OF REVIEW
This court reviews de novo the enforceability of a forum selection clause.
Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009).
We review a district court’s ruling on a motion to dismiss for forum non
conveniens for a clear abuse of discretion only. Aldana v. Del Monte Fresh
Produce N.A., 578 F.3d 1283, 1288 (11th Cir. 2009). As long as the district court
considered all relevant factors, and its balancing of the factors was reasonable, we
will give substantial deference to the district court’s decision. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266 (1981).
IV. ANALYSIS
“Forum selection clauses are presumptively valid and enforceable unless the
plaintiff makes a ‘strong showing’ that enforcement would be unfair or
unreasonable under the circumstances.” Krenkel, 579 F.3d at 1281. A forum
selection clause will be invalidated if (1) its formation was induced by fraud or
overreaching; (2) the plaintiff would be deprived of his day in court because of
inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a
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remedy; or (4) enforcement of the clause would contravene public policy. Lipcon
v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1296 (11th Cir. 1998). When
the parties do not negotiate the forum selection clause, as was the case here, this
court determines whether there was fraud or overreaching in its formation by
looking to “whether the clause was reasonably communicated to the consumer.”
Krenkel, 579 F.3d at 1281. “A useful two-part test of ‘reasonable
communicativeness’ takes into account the clause’s physical characteristics and
whether the plaintiffs had the ability to become meaningfully informed of the
clause and to reject its terms.” Id.
The Feggestads did not take issue with the physical characteristics of the
registration form they signed,1 and this court has already found this particular
agreement’s physical characteristics adequate under the “reasonable
communicativeness” test. See Krenkel, 579 F.3d at 1281 (finding same forum
selection clause presumptively valid). Therefore, this court need not consider this
prong of the “reasonable communicativeness” test.
1
Kerzner notes that the Feggestads, for the first time on appeal, attempt to challenge the
physical characteristics of the email and website containing the forum selection clause. This
court has long held that it will not consider issues raised for the first time on appeal. Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Furthermore, the
Feggestads concede that they never visited the Atlantis website and that they did not read the
Terms and Conditions before filing their lawsuit. Moreover, all of their arguments to satisfy this
prong of the “reasonable communicativeness” test are baseless.
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We conclude from the record that the second prong of the test is also
satisfied here. The Feggestads contend that they were prevented from
meaningfully reviewing and understanding the agreement they signed upon check-
in by the misrepresentation of the resort personnel and the haste with which the
personnel were checking-in guests. However, we conclude that neither of these
assertions satisfies their burden under the “reasonable communicativeness” test.
The record demonstrates that the Feggestads first received notice of the
forum selection clause via the email confirmation of their reservation. Even
though the clause was contained in a hyperlink in the body of the email, there was
nothing that prevented them from clicking on the link to read the terms and
conditions that would apply to their stay at the Atlantis. The Feggestads actually
stated that they did not try to access the hyperlink. Thus, because they cannot
demonstrate how they were prevented from reading the terms and conditions, this
email provided sufficient notice of the forum selection clause. See e.g., Starkey v.
G Adventures, Inc., 796 F.3d 193, 197–98 (2d Cir. 2015) (finding that a hyperlink
sent via email linking to the terms and conditions of a vacation tour constituted
reasonable communication of a forum selection clause contained in the terms and
conditions); Vanderham v. Kerzner Int’l Bahamas Ltd., et al., No. 13-24147-civ,
2014 WL 4285271, at *2 (S.D. Fla. Aug. 29, 2014) (ruling that the forum selection
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clause was enforceable because Kerzner sent plaintiffs a confirmation of
registration email that contained the terms and conditions including the forum
selection clause) (identical facts to present case).
We also conclude from the record that the Feggestads received notice for a
second time when they registered at the Atlantis. They claim that the reservation
personnel impeded their ability to read, fully understand, and reject the terms of the
forum selection clause because she told them that their signature on the registration
card was necessary to charge incidentals to their room. This assertion, with no
evidence that the resort personnel impeded or prevented them from reading the
agreement, is insufficient. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344,
347–48 (Fla. 1977) (“Unless one can show facts and circumstances to demonstrate
that he was prevented from reading the contract, or that he was induced by
statements of the other party to refrain from reading the contract, it is binding.”).
Moreover, the reservation personnel’s statement to the Feggestads was true. The
Feggestads cannot enter into a contract that is presented to them in plain language
via two mediums and then claim that they have been deceived. See e.g., Krenkel,
579 F.3d at 1282 (rejecting Krenkels’ contention that the front desk personnel
impeded their understanding of the terms of the forum selection clause). In the
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present case, the Feggestads cannot demonstrate that the inclusion of the forum
selection clause was the product of fraud or coercion.2
In conclusion, we hold that the district court properly found the forum
selection clause valid and enforceable under the circumstances of this case.3
AFFIRMED.
2
The Feggestads also fault the district court for ignoring the fact that they had never
visited the Atlantis before. They argue, citing to district court cases, that a plaintiff must have
the opportunity to reject a forum selection clause “with impunity.” While there is some language
in the dissenting opinion in Shute to support such a stringent requirement, see Carnival Cruise
Lines, Inc., v. Shute, 499 U.S. 585, 597, 111 S. Ct. 1522, 1529 (Stevens, J. dissenting), the
binding precedent set out in Krenkel does not provide that a plaintiff can reject a forum selection
clause “with impunity.” Moreover, reversal here would make sense only if we required the
district court to have made a finding that rejection “with impunity” was possible, because the
district court plainly found that the Feggestads had the opportunity to reject the agreement.
3
Additionally, the Feggestads have not demonstrated inconvenience or unfairness, that
the chosen law would deprive them of a remedy, or that enforcement of the forum selection
clause would contravene public policy. See Lipcon, 148 F.3d at 1296.
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