Starkey v. G Adventures, Inc.

Decision Date07 August 2015
Docket NumberDocket No. 14–1361–cv.
Citation796 F.3d 193
PartiesElizabeth STARKEY, Plaintiff–Appellant, v. G ADVENTURES, INC., Defendant–Appellee.
CourtU.S. Court of Appeals — Second Circuit

796 F.3d 193

Elizabeth STARKEY, Plaintiff–Appellant
v.
G ADVENTURES, INC., Defendant–Appellee.

Docket No. 14–1361–cv.

United States Court of Appeals, Second Circuit.

Argued: March 11, 2015.
Decided: Aug. 7, 2015.


796 F.3d 195

Elliot B. Pasik, Law Office of Gerald P. Gross, Cedarhurst, N.Y., for Plaintiff–Appellant.

John F. Gaffney, Hueston McNulty, P.C., Florham Park, NJ, for Defendant–Appellee.

Before: JACOBS and LOHIER, Circuit Judges, and SWAIN, District Judge.*

Opinion

LOHIER, Circuit Judge:

In this appeal we consider whether a hyperlink to a document containing a forum selection clause may be used to reasonably communicate that clause to a consumer. The appellant, Elizabeth Starkey, filed suit against G Adventures, Inc., a travel company with which she booked a vacation tour to the Galápagos Islands in Ecuador. Asserting a claim of negligence, Starkey alleged that one of G Adventures' employees sexually assaulted her during the trip. The United States District Court for the Southern District of New York (Griesa, J. ) dismissed Starkey's complaint, holding that the United States was an improper forum because G Adventures had reasonably communicated the terms and conditions applicable to the tour, which included an enforceable forum selection clause that required Starkey to litigate her claim in Canada. We affirm.

BACKGROUND

We draw the following facts from the pleadings and affidavits submitted to the District Court. See Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir.2014). In September 2011 Starkey purchased a ticket for a vacation tour of the Galápagos Islands operated by G Adventures, which conducts tours worldwide. Shortly thereafter, G Adventures sent Starkey three emails: a booking information email, a confirmation invoice, and a service voucher. The booking information email contained the statement, TERMS AND CONDITIONS: ... All Gap Adventures passengers must read, understand and agree to the following terms and conditions.” App'x 34. This statement was followed by a hyperlink with an underlined URL. The confirmation invoice and service voucher each also contained hyperlinks, which were preceded immediately by the following text: “Confirmation of your reservation means that you have already read, agreed to and understood the terms and conditions, however, you can access them through the below link if you need to refer to them for any reason.” App'x 28, 31.

The hyperlinks in all three emails linked to a document entitled “G Adventures Inc. Booking Terms and Conditions.” The second paragraph of that document stated that “[b]y booking a trip, you agree to be bound by these Terms and Conditions.... These Terms and Conditions affect your rights and designate the ... forum for the resolution of any and all disputes.” Supp.

796 F.3d 196

App'x 2. Section 32 of the Booking Terms and Conditions contained the following forum selection clause: “The Terms and Conditions and Conditions of Carriage including all matters arising from it are subject to ... the exclusive jurisdiction of the Ontario and Canadian Courts.” Supp. App'x 11. Starkey does not dispute that she received the relevant emails. Instead, she alleges that she never read the Booking Terms and Conditions because she never clicked on the hyperlinks.

As noted, during the Galápagos Islands tour, a G Adventures employee allegedly sexually assaulted Starkey, who then sued G Adventures for negligence in the Southern District of New York. G Adventures responded that, pursuant to the forum selection clause in the Booking Terms and Conditions, Starkey's claims were subject to the exclusive jurisdiction of the Ontario and Canadian courts. After discovery began, G Adventures moved on that basis to dismiss Starkey's suit pursuant to 28 U.S.C. § 1406. Construing the motion as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), the District Court concluded that the Booking Terms and Conditions' forum selection clause barred Starkey from bringing suit in the United States, and dismissed her complaint.

This appeal followed.

DISCUSSION

“[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens .” Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., –––U.S. ––––, 134 S.Ct. 568, 580, 187 L.Ed.2d 487 (2013). We therefore construe G Adventures' motion under 28 U.S.C. § 1406 as a forum non conveniens motion to enforce a forum selection clause, see Martinez, 740 F.3d at 216, with the caveat that because we are asked to determine the enforceability of a forum selection clause, the forum non conveniens doctrine's “usual tilt in favor of the plaintiff's choice of forum gives way to a presumption in favor of the contractually selected forum,” id. at 218 (citing M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 6, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ). As in Martinez, we need not decide whether to review the grant of such a motion for abuse of discretion or de novo because, even on de novo review, the District Court's decision to dismiss the case was proper. See id. at 217.

“To determine whether the district court properly dismissed a claim based on a forum selection clause, we employ a four-part analysis,” asking the following:

(1) whether the clause was reasonably
...

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1 books & journal articles
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