United States District Court, E.D. Wisconsin
DECISION AND ORDER
RUDOLPH T. RANDA U.S. DISTRICT JUDGE
their honeymoon, Natasha and Scott Mueller purchased an
all-inclusive vacation from Apple Vacations to Secrets Resort
in Punta Cana, Dominican Republic. Following the trip,
Natasha experienced unexplained medical issues, including
numbness, nausea, fatigue, and pain. Eventually, her doctors
landed on the correct diagnosis: Ciguatera poisoning, "a
foodborne illness caused by eating certain reef fish whose
flesh is contaminated with a toxin made by dinoflagellates
such as Gambierdiscus toxicus which live in tropical
and subtropical waters." The Muellers sued Apple for
breach of warranty, negligence, and medical care insurance
benefits. Apple moves to dismiss on a variety of grounds.
This motion is granted.
relies on a forum-selection clause which provides that the
"exclusive forum for the litigation of any claim or
dispute arising out of or in any way relating to these terms
and conditions or to any injury, damage, incident or event
occurring during the course of your trip shall be the
Court of Common Pleas of Delaware County,
Pennsylvania." This clause was included in a
one-page document appended to the Muellers' travel
vouchers entitled "Advice to International Passengers on
Limitation of Liability." It was also included in a
one-page document entitled "Fair Trade Contract."
This latter document is "part of every vacation package
compiled by Apple Vacations and made available to travel
agents. It is the travel agent's responsibility to ensure
that [it] is provided to every customer who purchases a
vacation package compiled by Apple Vacations and sold by a
travel agent." Affidavit of Julia Davidson, Exhibits A
invokes Federal Rule of Civil Procedure 12(b)(3), which
governs motions to dismiss for "improper venue."
See also 28 U.S.C. § 406(a) (discussing
procedure for improperly-venued cases). However, a
forum-selection clause "does not render venue in a court
‘wrong' or ‘improper' within the meaning
of § 1406(a) or Rule 12(b)(3), …" Atl.
Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist.
of Tex., 134 S.Ct. 568, 579 (2013). Instead, the
appropriate way to enforce a forum-selection clause is
through the doctrine of forum non conveniens.
argues that a Rule 12(b)(3) motion is the correct procedure
because venue is improper in this judicial district.
See 28 U.S.C. § 1391. However, in Atl.
Marine, the Court repeatedly rejected the argument that
"[a forum-selection] clause may be enforced by a motion
to dismiss under § 1406(a) or Rule 12(b)(3)
…." 134 S.Ct. at 575. Neither the rule nor the
statute applies in this context. See also Id. at 580
("Even if a defendant could use Rule 12(b)(6) to enforce
a forum-selection clause, that would not change our
conclusions that § 1406(a) and Rule 12(b)(3) are not
proper mechanisms to enforce a forum-selection clause
and that [28 U.S.C.] § 1404(a) and the forum non
conveniens doctrine provide appropriate enforcement
mechanisms") (emphasis added).
non conveniens is codified at § 1404(a), which
allows a federal district court to transfer a civil action to
"any other district or division where it might have been
brought or to any district or division to which all parties
have consented." Where, as here, the clause points to a
nonfederal forum, courts apply the residual forum non
conveniens doctrine instead of § 1404(a). The only
difference is procedural; instead of a direct transfer to
another court in the federal system, the case is dismissed
and (presumably) re-filed in the correct forum.
"[B]ecause both § 1404(a) and the forum non
conveniens doctrine from which it derives entail the
same balancing-of-interests standard, courts should evaluate
a forum-selection clause pointing to a nonfederal forum in
the same way that they evaluate a forum-selection clause
pointing to a federal forum." Atl. Marine at
and "in all but the most exceptional cases, " this
analysis results in the forum-selection clause being
enforced. Id. at 581 (quoting Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
When parties have contracted in advance to litigate disputes
in a particular forum, courts should not unnecessarily
disrupt the parties' settled expectations. A
forum-selection clause, after all, may have figured centrally
in the parties' negotiations and may have affected how
they set monetary and other contractual terms; it may, in
fact, have been a critical factor in their agreement to do
business together in the first place. In all but the most
unusual cases, therefore, ‘the interest of
justice' is served by holding parties to their bargain.
Id. at 583 (emphasis added). This is not an unusual
or exceptional case. The Muellers assert that it is
"extremely unlikely" that a forum selection clause
in an attachment to a consumer contract is enforceable. Yet
in Carnival Cruise Lines, Inc. v. Shute, 499 U.S.
585 (1991), the Court held that "even a forum selection
clause in a commercial passage contract - that is, a ticket
for a cruise - was enforceable." Muzumdar v.
Wellness Int'l Network, Ltd., 438 F.3d 759,
762 (7th Cir. 2006). The context of the Muellers'
transaction - purchasing a vacation package through a travel
agent - is materially indistinguishable. Absent "fraud,
undue influence, or overweening bargaining power, " the
clause must be enforced. M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 12 (1972).
when parties "agree to a forum-selection clause, they
waive the right to challenge the preselected forum as
inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation."
Atl. Marine at 582. As a result, the Court can only
consider arguments about public-interest factors.
Id. Aside from obliquely referring to the clause as
likely unenforceable, the Muellers did not pursue this or any
other line of argument. Instead, the Muellers faulted Apple
for raising the forum-selection issue under the wrong
rule/statute, as discussed above, and left it at that. This
was a mistake, especially because the Muellers bear the
burden of "establishing that transfer to the forum for
which the parties bargained is unwarranted."
Id. at 581. In any event, this is not an
"unusual case" that justifies refusal to transfer
"notwithstanding the counterweight of a forum-selection
clause." Id. at 582 (quoting Stewart,
487 U.S. at 30-31). For example, one public interest factor
is "the interest in having the trial of a diversity case
in a forum that is at home with the law that must govern the
action." Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981). But when a transfer stems from
enforcement of a forum-selection clause, the court in the
"contractually selected venue should not apply
the law of the transferor venue to which the parties waived
their right." Atl. Marine at 583 (emphasis
added). Since Wisconsin law will not follow this case to
Pennsylvania, the public interest does not favor its
THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT
Apple's motion to dismiss [ECF No. 29], construed as a
forum non conveniens motion, is GRANTED. The Clerk
of Court is directed to enter judgment accordingly.