Doe v. Seacamp Ass'n, Inc.
| Decision Date | 13 August 2003 |
| Docket Number | No. CIV.A.01-11830-RCL.,CIV.A.01-11830-RCL. |
| Citation | 276 F.Supp.2d 222 |
| Parties | Jane DOE, individually and as parent and next friend of the minor child, John Doe, Plaintiffs, v. SEACAMP ASSOCIATION, INC., Dieter Charles Vogt, American Re-Insurance Company, National Union Fire Insurance Company, and Federal Insurance Company, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
James P. Brady, Hingham, MA, for Plaintiff.
John B. Johnson, Corrigan, Johnson & Tutor, PA, Boston, MA, Howard J. Russell, Atlanta, GA, for Defendants.
MEMORANDUM ORDER ON DEFENDANT SEACAMP ASSOCIATION, INC.'S MOTION TO DISMISS
This action encompasses a series of tort and contract claims based on the sexual abuse by defendant Dieter Charles Vogt ("Vogt") of the minor plaintiff John Doe.1 Vogt met John Doe when the latter participated in a summer camp program run by defendant Seacamp Association, Inc. ("Seacamp") at a facility in the Florida Keys. Vogt, who is currently serving a lengthy federal prison term, confessed to abusing John Doe both during the 1999 camp session at Seacamp's Florida facility and later in the same summer at the Does' home in Plymouth County, Massachusetts.
John Doe and his mother, Jane Doe, have asserted in their fourth amended complaint (the "complaint") numerous claims against Seacamp for its alleged role in causing their respective injuries: count I—negligence in its hiring, supervision and retention of Vogt; count II—sexual battery; count III—invasion of John Doe's privacy and exploitation of his image; count IV—negligent infliction of emotional distress; count V—Jane Doe's loss of consortium; count VI—misrepresentation of the safety of Seacamp's program; count VII—breach of contract; count VIII— promissory estoppel; and count IX—violation of Mass. Gen. Laws ch. 93A § 11. Each of counts I through IV is captioned as having been asserted under the laws of Florida, and counts V and IX are explicitly identified as causes of action intended to be governed by Massachusetts law.
Seacamp has moved to dismiss the complaint for various asserted procedural and substantive defects. The entire complaint, according to Seacamp, is subject to dismissal under Fed.R.Civ.P. 12(b)(3) for want of proper venue because of a forum selection clause contained in the application for enrollment signed by the plaintiffs. Should the forum selection clause be found to be unenforceable, Seacamp continues, Massachusetts as a venue is still improper under the federal venue statute. Thus, as an alternative to dismissing the case, Seacamp proffers its petition for transfer of the case from this court to the United States District Court for the Southern District of Florida. Should its argument for the transfer also be found unpersuasive, Seacamp moves to dismiss the complaint on the ground that Seacamp is not subject to personal jurisdiction in the District of Massachusetts. Finally, Seacamp claims that count VI should be dismissed because that count is not pleaded with the particularity required by Fed.R.Civ.P. 9(b), and that counts II and III should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted. For the reasons discussed below, Seacamp's motion is DENIED in part and GRANTED in part.
Analysis: Forum Selection Clause.
Seacamp's primary argument is that this dispute is governed by a forum selection clause requiring the Does to bring suit in Monroe County, Florida. Seacamp, in support of this argument, cites Massachusetts case law enforcing forum selection clauses when certain indicia of reasonableness are present. See Memorandum of Law in Support of Seacamp Association, Inc.'s Renewed Motion to Dismiss Fourth Amended Complaint ("Def.Mem.") at 3 ). I note, as an initial matter, that Seacamp has skirted the issue of whether Massachusetts or federal law should govern the question of the enforceability of this clause.2 The First Circuit has taken the view that forum selection clauses in diversity actions present an Erie question that has not yet been resolved by the Supreme Court. See Lambert, 983 F.2d at 1117 n. 10 ( circuit split). Fortunately for Seacamp's analysis, federal common law and Massachusetts law "treat forum selection clauses identically." Rooney v. Biomet, Inc., 63 F.Supp.2d 126, 127 (D.Mass.1999) ().
The Does contend that the forum selection clause is not enforceable in light of the considerations of fairness taken into account by Massachusetts and federal courts. In addition, they claim that the clause does not apply to their causes of action because the claims asserted in the complaint do not arise out of the Seacamp application signed by Jane Doe (which is treated here as the contract between the parties) to enroll her son in the summer program. I discuss each of these arguments below.
Enforceability Under Massachusetts and Federal Law. For many years, courts were reluctant to give effect to contractual provisions seeking to set in advance the venue for any eventual dispute, because of a perceived concern that such provisions would oust of its jurisdiction a court in which venue properly lay. See M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 9-10, 92 S.Ct. 1907, 1913 n. 10, 32 L.Ed.2d 513 (1972) (). The Bremen Court endorsed enforcement of forum selection clauses except where such a clause could be shown to be "unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching." 407 U.S. at 15, 92 S.Ct. at 1916.
The modern view, which takes into account the need for predictability in commercial transactions, gives much greater deference to forum selection clauses. Post-Bremen, courts applying Massachusetts law and federal courts in this circuit have identified several factors to be weighed in the decision as to whether a forum selection clause is reasonable, just and freely entered into. Writing as a judge in the District of Rhode Island, Judge Selya synthesized the factors as follows: (i) the law governing the contract in question; (ii) the place of execution of the contract; (iii) the place where the transactions have been or will be performed; (iv) the availability of remedies in the contractually designated forum; (v) the public policy of the plaintiff's choice of forum state; (vi) the location of the parties, convenience of witnesses and accessibility of evidence; (vii) the relative bargaining power of the parties and the circumstances of their negotiations; (viii) the presence of fraud or other undue influence; and (ix) the conduct of the parties. See D'Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708, 712 (D.R.I.1983) (). One Massachusetts superior court has adopted a slightly condensed version of these factors. See Lectric's & Inc. v. Power Controls, Inc., 1995 WL 809558, at *3 (Mass.Super.1995) ().
However the factors are articulated, the Does' burden in resisting the forum selection clause is a heavy one. Their complaint concedes that most of the tort claims are brought under Florida law, and the contract, though lacking a specific governing law provision, would most likely be found to be governed by Florida law as well. With respect to a choice of law question raised as to a contract in which the parties have not specified the governing law, Massachusetts applies "[']the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties[.]'" Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d 662, 669 (1985) (quoting Restatement (Second) of Conflict of Laws § 188 (1971)). These factors include the place of contracting and of negotiation; the place where the contract is to be performed; and the domiciles of the parties to the contract. See id.
Here, the application form required a deposit to be sent to Seacamp to secure John Doe's place in the program, thus requiring the last act necessary for effectiveness of the contract to take place in Florida. See Exhibit A to Def. Mem. (Seacamp Enrollment Agreement). In addition, the place for performance of the contract was Seacamp's facility in Key West, Florida—a factor that weighs in favor both of the application of Florida law to the contract and of the enforceability of the forum selection clause.
With respect to convenience of witnesses and litigants, it appears from the parties' submissions that the plaintiffs anticipate calling, in addition to themselves, up to four Massachusetts residents as witnesses, as well as "a number of former SeaCamp counselors[.]" Ex. B to Plaintiff's Opposition to Defendant Seacamp's Renewed Motion to Dismiss Fourth Amended Complaint ("Pl.Opp.") (Affidavit of James P. Brady). Of the counselor witnesses, two or three are Florida residents, and the remainder are residents of neither Florida nor Massachusetts. See id. Seacamp has not provided a list of anticipated witnesses, but notes that its officers and employees are located in Florida. See Reply to Plaintiffs' Opposition to Motion to Dismiss Fourth Amended Complaint ("Def.Reply") at 3. For witnesses who live neither in Florida nor in Massachusetts, situating this action in Florida presumably presents no greater burden than litigating in Massachusetts.
As to the factor concerning availability of remedies, one cannot gainsay that Massachusetts has an interest in vindicating the rights of its citizens. The plaintiffs, however, have not argued that they are without remedy in a Florida court; indeed, with respect to certain of their claims, they have specifically invoked the protection of the laws of Florida. See Compl. ¶¶ 97-134.
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...are also part of an `action in connection with the Plan' and are covered by the clause" (footnote omitted)); Doe v. Seacamp Assoc., Inc., 276 F.Supp.2d 222, 227 (D.Mass.2003) ("A review of the case law leads me to conclude that the tort claims, too, are covered by the forum selection clause......
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Caperton v. A.T. MAssey Coal Company, Inc., No. 33350 (W.Va. 11/21/2007)
...are also part of an `action in connection with the Plan' and are covered by the clause" (footnote omitted)); Doe v. Seacamp Assoc., Inc., 276 F. Supp. 2d 222, 227 (D. Mass. 2003) ("A review of the case law leads me to conclude that the tort claims, too, are covered by the forum selection cl......
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Caperton v. A.T. MAssey Coal Company, Inc., No. 33350 (W.Va. 11/21/2007)
...are also part of an `action in connection with the Plan' and are covered by the clause" (footnote omitted)); Doe v. Seacamp Assoc., Inc., 276 F. Supp. 2d 222, 227 (D. Mass. 2003) ("A review of the case law leads me to conclude that the tort claims, too, are covered by the forum selection cl......
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Caperton v. A.T. Massey Coal Co., Inc.
...are also part of an `action in connection with the Plan' and are covered by the clause" (footnote omitted)); Doe v. Seacamp Assoc., Inc., 276 F.Supp.2d 222, 227 (D.Mass.2003) ("A review of the case law leads me to conclude that the tort claims, too, are covered by the forum selection clause......