579 F.3d 1279 (11th Cir. 2009), 08-15971, Krenkel v. Kerzner International Hotels Ltd.

Docket Nº:08-15971.
Citation:579 F.3d 1279
Opinion Judge:PER CURIAM:
Party Name:Debbi KRENKEL, George Krenkel, Plaintiffs-Appellants, v. KERZNER INTERNATIONAL HOTELS LIMITED, a Bahamian company, Kerzner International Bahamas Limited, a Bahamian company, Defendants-Appellees.
Attorney:Joel S. Perwin, Joel S. Perwin, P.A., Miami, FL, for Plaintiffs-Appellants. Tracy Tatnall Segal, West Palm Beach, FL, Marc J. Gottleb, Akerman, Senterfitt & Eidson, P.A., Ft. Lauderdale, FL, for Defendants-Appellees.
Judge Panel:Before EDMONDSON, BLACK and SILER,[*] Circuit Judges.
Case Date:August 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1279

579 F.3d 1279 (11th Cir. 2009)

Debbi KRENKEL, George Krenkel, Plaintiffs-Appellants,

v.

KERZNER INTERNATIONAL HOTELS LIMITED, a Bahamian company, Kerzner International Bahamas Limited, a Bahamian company, Defendants-Appellees.

No. 08-15971.

United States Court of Appeals, Eleventh Circuit.

August 19, 2009

Appeal from the United States District Court for the Southern District of Florida.

Page 1280

Joel S. Perwin, Joel S. Perwin, P.A., Miami, FL, for Plaintiffs-Appellants.

Tracy Tatnall Segal, West Palm Beach, FL, Marc J. Gottleb, Akerman, Senterfitt & Eidson, P.A., Ft. Lauderdale, FL, for Defendants-Appellees.

Before EDMONDSON, BLACK and SILER,[*] Circuit Judges.

PER CURIAM:

This case arises from Debbi Krenkel's slip and fall at the Atlantis Hotel in The Bahamas.1 She and her husband George appeal the district court's dismissal of their claims, based on a forum-selection

Page 1281

clause the Krenkels signed upon check-in at the hotel. For the following reasons, we affirm the dismissal.

I.

In May 2007, the Krenkels traveled from New Jersey, where they reside, to The Bahamas. Upon check-in at the Atlantis, the Krenkels executed an agreement containing a forum-selection clause. The clause read:

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 Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.

On May 16, 2007, Mrs. Krenkel was injured when she slipped and fell on an outdoor path in the pool lagoon area. Thereafter, the Krenkels brought suit against Kerzner International Hotels Limited and Kerzner International Bahamas Limited (Kerzner Defendants), the entities that own and operate the Atlantis on Paradise Island in The Bahamas. Subsequently, the district court granted the Kerzner Defendants' motion to dismiss on the basis of the forum-selection clause, declining to address their alternative motion for dismissal based on forum non conveniens.

II.

We review de novo the enforceability of forum-selection and choice-of-law provisions in international agreements. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290-91 (11th Cir.1998). 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. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95, 111 S.Ct. 1522, 1527-28, 113 L.Ed.2d 622 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972). A forum-selection clause will be invalidated when: (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy. Lipcon, 148 F.3d at 1296 (citing Shute, 499 U.S. at 594-95, 111 S.Ct. at 1528). In determining whether there was fraud or overreaching in a non-negotiated forum-selection clause, we look to whether the clause was reasonably communicated to the consumer. 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.2

The forum-selection...

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