Forum Selection Clause in Resort’s Registration Form Is Enforceable

The Eleventh Circuit upheld the dismissal of a personal injury complaint, finding a forum selection clause naming the Bahamas as the forum for any litigation between plaintiffs and defendants was valid and enforceable. In Feggestad v. Kerzner International Bahamas Ltd., No. 15-11773, 2016 WL 7210067 (11th Cir. Dec. 13, 2016), plaintiffs brought suit after a slip and fall at the Atlantis Resort in the Bahamas.  The suit was filed in the U.S. District Court of the Southern District of Florida even though, when the plaintiffs checked into the resort, they signed a registration form containing a forum selection clause selecting the Bahamas as the exclusive venue for any claims.  The plaintiffs argued that they should not be bound by the clause because, when they had asked about the purpose of the registration card prior to signing, a resort representative told them that the registration card was necessary to charge guests incidentals to their hotel bill.

Because the parties did not negotiate the forum selection clause, the court applied a two-part test for determining whether the forum selection clause was reasonably communicated to the consumer. This two-part test of “reasonable communicativeness” weighs (1) the clause’s physical characteristics and (2) whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.  The physical characteristics prong was not at issue, and the court concluded that the second prong of the test was met because the plaintiffs twice received notice of the forum selection clause and were never prevented from reading its terms and conditions.

Posted by Margaret Flatt.

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