Starkey v. G Adventures, Inc., No. 14-1361 (2d Cir. 2015)
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Plaintiff filed suit against defendant, a travel company with which she booked a vacation tour, alleging negligence after one of defendant's employees sexually assaulted her during the trip. At issue was whether a hyperlink to a document containing a forum selection clause may be used to reasonably communicate that clause to a consumer. The court concluded that the forum selection clause in this case was enforceable. Therefore, the court agreed with the district court's holding that the United States was an improper forum because defendant had reasonably communicated the terms and conditions applicable to the tour, which included an enforceable forum selection clause that required plaintiff to litigate her claim in Canada. Accordingly, the court affirmed the judgment.
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14-1361-cv Starkey v. G Adventures, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2014 (Argued: March 11, 2015 Decided: August 7, 2015) Docket No. 14 1361 cv _____________________________________ ELIZABETH STARKEY, Plaintiff Appellant, v. G ADVENTURES, INC., Defendant Appellee. _____________________________________ Before: JACOBS and LOHIER, Circuit Judges, and SWAIN, District Judge.* Elizabeth Starkey filed suit against G Adventures, Inc., a travel company with which she booked a vacation tour, asserting a claim of negligence. The United States District Court for the Southern District of New York (Griesa, J.) dismissed Starkey’s complaint, holding that G Adventures had reasonably communicated the terms and conditions applicable to the tour, including an enforceable forum selection clause that required Starkey to litigate her claim in Canada. We affirm. The Honorable Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation. 1 * 14-1361-cv Starkey v. G Adventures, Inc. 1 2 3 4 5 6 7 8 ELLIOT B. PASIK, Law Office of Gerald P. Gross, Cedarhurst, NY, for Plaintiff Appellant. JOHN F. GAFFNEY, Hueston McNulty, P.C., Florham Park, NJ, for Defendant Appellee. LOHIER, Circuit Judge: In this appeal we consider whether a hyperlink to a document 9 containing a forum selection clause may be used to reasonably communicate 10 that clause to a consumer. The appellant, Elizabeth Starkey, filed suit against 11 G Adventures, Inc., a travel company with which she booked a vacation tour 12 to the Galápagos Islands in Ecuador. Asserting a claim of negligence, Starkey 13 alleged that one of G Adventures’ employees sexually assaulted her during 14 the trip. The United States District Court for the Southern District of New 15 York (Griesa, J.) dismissed Starkey’s complaint, holding that the United States 16 was an improper forum because G Adventures had reasonably 17 communicated the terms and conditions applicable to the tour, which 18 included an enforceable forum selection clause that required Starkey to 19 litigate her claim in Canada. We affirm. 2 14-1361-cv Starkey v. G Adventures, Inc. 1 2 BACKGROUND We draw the following facts from the pleadings and affidavits 3 submitted to the District Court. See Martinez v. Bloomberg LP, 740 F.3d 211, 4 216 (2d Cir. 2014). In September 2011 Starkey purchased a ticket for a 5 vacation tour of the Galápagos Islands operated by G Adventures, which 6 conducts tours worldwide. Shortly thereafter, G Adventures sent Starkey 7 three emails: a booking information email, a confirmation invoice, and a 8 service voucher. The booking information email contained the statement, 9 “TERMS AND CONDITIONS: . . . All Gap Adventures passengers must 10 read, understand and agree to the following terms and conditions.” App’x 11 34. This statement was followed by a hyperlink with an underlined URL. 12 The confirmation invoice and service voucher each also contained hyperlinks, 13 which were preceded immediately by the following text: “Confirmation of 14 your reservation means that you have already read, agreed to and understood 15 the terms and conditions, however, you can access them through the below 16 link if you need to refer to them for any reason.” App’x 28, 31. 3 14-1361-cv Starkey v. G Adventures, Inc. The hyperlinks in all three emails linked to a document entitled “G 1 2 Adventures Inc. Booking Terms and Conditions.” The second paragraph of 3 that document stated that “[b]y booking a trip, you agree to be bound by 4 these Terms and Conditions . . . . These Terms and Conditions affect your 5 rights and designate the . . . forum for the resolution of any and all disputes.” 6 Supp. App’x 2. Section 32 of the Booking Terms and Conditions contained 7 the following forum selection clause: “The Terms and Conditions and 8 Conditions of Carriage including all matters arising from it are subject to . . . 9 the exclusive jurisdiction of the Ontario and Canadian Courts.” Supp. App’x 10 11. Starkey does not dispute that she received the relevant emails. Instead, 11 she alleges that she never read the Booking Terms and Conditions because 12 she never clicked on the hyperlinks. 13 14 allegedly sexually assaulted Starkey, who then sued G Adventures for 15 negligence in the Southern District of New York. G Adventures responded 16 that, pursuant to the forum selection clause in the Booking Terms and 17 Conditions, Starkey’s claims were subject to the exclusive jurisdiction of the As noted, during the Galápagos Islands tour, a G Adventures employee 4 14-1361-cv Starkey v. G Adventures, Inc. 1 Ontario and Canadian courts. After discovery began, G Adventures moved 2 on that basis to dismiss Starkey’s suit pursuant to 28 U.S.C. § 1406. 3 Construing the motion as a motion for judgment on the pleadings pursuant to 4 Federal Rule of Civil Procedure 12(c), the District Court concluded that the 5 Booking Terms and Conditions’ forum selection clause barred Starkey from 6 bringing suit in the United States, and dismissed her complaint. 7 8 9 This appeal followed. DISCUSSION “[T]he appropriate way to enforce a forum selection clause pointing to 10 a state or foreign forum is through the doctrine of forum non conveniens.” 11 Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 12 568, 580 (2013). We therefore construe G Adventures’ motion under 28 U.S.C. 13 § 1406 as a forum non conveniens motion to enforce a forum selection clause, 14 see Martinez, 740 F.3d at 216, with the caveat that because we are asked to 15 determine the enforceability of a forum selection clause, the forum non 16 conveniens doctrine’s “usual tilt in favor of the plaintiff’s choice of forum 17 gives way to a presumption in favor of the contractually selected forum,” id. 5 14-1361-cv Starkey v. G Adventures, Inc. 1 at 218 (citing M/S Bremen v. Zapata Off Shore Co., 407 U.S. 1, 6, 15 (1972)). 2 As in Martinez, we need not decide whether to review the grant of such a 3 motion for abuse of discretion or de novo because, even on de novo review, 4 the District Court’s decision to dismiss the case was proper. See id. at 217. 5 “To determine whether the district court properly dismissed a claim 6 based on a forum selection clause, we employ a four part analysis,” asking 7 the following: (1) whether the clause was reasonably communicated to the party resisting enforcement; (2) whether the clause is mandatory or permissive, i.e., whether the parties are required to bring any . . . dispute to the designated forum or simply permitted to do so; and (3) whether the claims and parties involved in the suit are subject to the forum selection clause. . . . If the forum clause was communicated to the resisting party, has mandatory force and covers the claims and parties involved in the dispute, it is presumptively enforceable. . . . A party can overcome this presumption only by (4) making a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.1 8 9 10 11 12 13 14 15 16 17 18 19 20 Federal common law governs the fourth prong of this analysis. Martinez, 740 F.3d at 217. Starkey assumes, and G Adventures does not dispute, that federal common law also applies to the first prong of the analysis. We therefore assume, without deciding, that federal common law applies to that prong as well. 6 1 14-1361-cv Starkey v. G Adventures, Inc. 1 Id. (quotation marks, emphasis, and alteration omitted). With respect to the 2 second and third prongs of the Martinez analysis, Starkey does not dispute 3 that the forum selection clause is mandatory and that her claims are within 4 the scope of the clause.2 With respect to the first prong of the analysis, which 5 is in dispute, we acknowledge that whether G Adventures reasonably 6 communicated the forum selection clause to Starkey is a somewhat close call.3 7 But we ultimately conclude that it did. A tour company reasonably communicates a forum selection clause 8 9 10 where (1) its promotional brochure directs the traveler’s attention to “the terms and conditions printed on the Passenger Ticket Contract which may be To the extent the parties even engage the issue of contract formation, they have forfeited any argument relating to whether, under state or Canadian contract law, the Booking Terms and Conditions became part of the parties’ contract. We therefore do not decide that issue. 3 We note that this case would have been simpler to resolve had G Adventures used a “clickwrap” mechanism to provide reasonable notice and to obtain Starkey’s assent to the clause. See, e.g., Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004) (explaining that a “clickwrap” mechanism presents a computer user “with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the . . . agreement by clicking on an icon,” which ensures that the user is “forced to expressly and unambiguously manifest either assent or rejection prior to being given access”) (quotation marks omitted). 7 2 14-1361-cv Starkey v. G Adventures, Inc. 1 inspected at any [of the company’s] office[s],” and (2) the ticket contract itself 2 set forth the clause clearly and unambiguously. Effron v. Sun Line Cruises, 3 Inc., 67 F.3d 7, 8 9 (2d Cir. 1995). As an initial matter, then, we address 4 whether G Adventures sufficiently directed Starkey to the Booking Terms and 5 Conditions. 6 Starkey received three separate emails stating that all G Adventures 7 passengers must agree to the Booking Terms and Conditions; a capitalized, 8 bolded heading “TERMS AND CONDITIONS” heralded one of these 9 statements. Cf. id. at 9 (upholding forum selection clause heralded by bold 10 face heading and cross reference to text of clause). Two of the emails advised 11 Starkey that she could access the Booking Terms and Conditions by clicking 12 on the hyperlink. The third email implicitly provided the same advice by 13 introducing the hyperlink as the “following terms and conditions” and 14 underlining the URL in a manner distinctive to hyperlinks. 15 G Adventures’ emails thus sufficiently directed Starkey’s attention to 16 the Booking Terms and Conditions by means of a hyperlink and language 17 advising Starkey to click on the hyperlink. This method serves the same 8 14-1361-cv Starkey v. G Adventures, Inc. 1 function as the method of cross referencing language in a printed copy 2 promotional brochure and sufficed to direct Starkey’s attention to the 3 Booking Terms and Conditions. Both methods may be used to reasonably 4 communicate a forum selection clause. 5 6 the hyperlinks inserted therein, the Booking Terms and Conditions 7 reasonably communicated the forum selection clause to Starkey. See id. They 8 did. The second paragraph of the Terms and Conditions document stated 9 that the document designated the “forum for the resolution of any and all We now determine whether, in addition to G Adventures’ emails and 10 disputes.” Supp. App’x 2. And “[t]he forum selection clause itself state[d] in 11 clear and unambiguous language—albeit in fine print—that all suits” arising 12 from the Booking Terms and Conditions and the Conditions of Carriage 13 would be subject to the exclusive jurisdiction of the Ontario and Canadian 14 courts. See Effron, 67 F.3d at 9. We conclude that these two paragraphs 15 together reasonably communicated the forum selection clause to Starkey and 16 that the forum selection clause is therefore presumptively enforceable. 9 14-1361-cv Starkey v. G Adventures, Inc. 1 2 enforcement of the forum selection clause would be unreasonable and unjust. 3 We disagree. We will decline to enforce a forum selection clause only if 4 5 6 7 8 9 10 11 (1) its incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forum in which suit is brought; or (4) trial in the selected forum will be so difficult and inconvenient that the plaintiff effectively will be deprived of his day in court. Martinez, 740 F.3d at 228 (citing M/S Bremen, 407 U.S. 1) (quotation marks 12 omitted). 13 To rebut the presumption of enforceability, Starkey argues that Here, Starkey “has made no showing whatsoever that she would not 14 receive a fair hearing on her claims” in Canada, Effron, 67 F.3d at 10, or that G 15 Adventures designated Canada as the exclusive forum in order to 16 “discourage [travel consumers] from pursuing legitimate claims,” id. 17 (quotation marks and alterations omitted). To the contrary, since G 18 Adventures offers tours on every continent, it “was reasonable for [it] to select 19 a single venue for [consumers’] suits.” Id. 20 21 Starkey also urges that it would be against public policy to force her to litigate in Canada, because Canada does not follow the “American Rule,” 10 14-1361-cv Starkey v. G Adventures, Inc. 1 under which “the prevailing party may not recover attorneys’ fees as costs or 2 otherwise,” and she therefore might be held liable for G Adventures’ 3 attorneys’ fees if her lawsuit is unsuccessful. Castillo Grand, LLC v. Sheraton 4 Operating Corp., 719 F.3d 120, 123 (2d Cir. 2013) (quotation marks omitted); 5 see Courts of Justice Act, R.S.O. 1990, c. C.43, s 131(1) (Can.). We have 6 instructed that “it is not enough that the foreign law or procedure merely be 7 different or less favorable than that of the United States” in order to show that 8 enforcement of the forum selection clause would contravene public policy. 9 Martinez, 740 F.3d at 229 (quotation marks omitted). Yet that is all that 10 11 Starkey has demonstrated in this case. We also reject Starkey’s argument that the forum selection clause in this 12 case should not be enforced against her as a survivor of sexual assault. 13 Starkey can point to no “federal cases or statutes . . . [that] constitute 14 declarations of public policy that justif[y] invalidating” the clause on that 15 basis. Id. at 228. And, without more, we hesitate to draw a judicial line for 16 such a clause that distinguishes one set of victims from another. 11 14-1361-cv Starkey v. G Adventures, Inc. 1 Finally, Starkey lists several inconveniences associated with litigating in 2 Canada, such as the time and expense involved in traveling and the difficulty 3 of ensuring that witnesses will testify on her behalf. But we have previously 4 described similar inconveniences as “the obvious concomitants of litigation 5 abroad” rather than circumstances “that would prevent [a plaintiff] from 6 bringing suit.” Phillips v. Audio Active Ltd., 494 F.3d 378, 393 (2d Cir. 2007) 7 (citing M/S Bremen, 407 U.S. at 16). 8 9 10 11 12 13 In sum, we conclude that the forum selection clause in this case was enforceable and that the District Court appropriately dismissed Starkey’s complaint. CONCLUSION We have considered Starkey’s remaining arguments and conclude that they are without merit. For the foregoing reasons, we AFFIRM. 12
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