Vanderham v. Brookfield Asset Management, Inc., No. 14-cv-23351 (S.D. Fla. Apr. 21, 2015) [click for opinion]

Plaintiffs, Marilyn and Casper Vanderham, citizens of Florida, sued Brookfield Asset Management, owner of the Atlantis Resort on Paradise Island in the Bahamas, alleging negligence and loss of consortium claims. The lawsuit sought recovery for personal injuries Marilyn Vanderham allegedly suffered when she slipped and fell while walking through the Atlantis Resort water park area.

The Vanderhams booked their vacation at the Atlantis Resort online. The confirmation email contained a link to the resort’s terms and conditions on the Atlantis Resort’s website. The terms and conditions provided that any claims based on a stay at the resort against the resort would be governed by Bahamian law and that the Bahamas would be the exclusive venue for any proceedings. Upon arrival at the resort, the Vanderhams signed a written agreement acknowledging the resort’s terms and conditions including that any claims resulting from their stay against the resort would be governed by Bahamian law and that the Bahamas would be the exclusive venue for any such proceedings.

The Vanderhams filed suit in the Southern District of Florida. Defendant moved to dismiss based on the forum-selection clause the Vanderhams signed upon their arrival.

The court first recited that Supreme Court precedent held that when the parties have agreed to a valid forum-selection clause, a district court should typically transfer the case to the designated forum. The court found the forum-selection clause at issue to be valid and enforceable. The court reasoned that the agreement was not induced by fraud or overreaching since the Vanderhams were emailed the link containing the information prior to their arrival and were presented with the agreement to sign upon their arrival. The court further reasoned that the forum-selection clause was “neither hidden nor ambiguous” and that by signing the agreement the Vanderhams agreed to the forum-selection clause. Finally, the court found that the Bahamian legal system would not deprive the Vanderhams of any legal remedy since Bahamian law recognized actions for negligence and vicarious liability for personal injury.

After finding the forum-selection clause to be valid and enforceable, the court reviewed the factors to dismiss the complaint under the doctrine offorum non conveniens. First, the court reiterated that the Bahamas was both an adequate and available alternative forum since it could provide the relief the Vanderhams sought. Second, the court considered the public interest factors such as: familiarity of the court with the governing law, the interest of any foreign nation to have the litigation in its own courts, and the value in having local controversies litigated locally. The court observed that the Vanderhams waived any right to challenge the inconvenience of the forum since they signed the forum-selection clause. The court further found that the private interest factors weighed entirely in favor of the preselected forum since: (1) the lawsuit lacked any relation to the Southern District of Florida; and (2) Bahamian law would govern the litigation.As a result, the court dismissed the Vanderhams’ action.

Joseph Rindone of the New York office contributed to this summary.