McElheny v. Trans Nat. Travel, Inc., 00-493L.

• Citation: 165 F.Supp.2d 190
• Decision Date: 20 September 2001
• Docket Number: No. 00-493L.,00-493L.
• Parties: Simone Lacroix MCELHENY, Plaintiff, v. TRANS NATIONAL TRAVEL, INC., d/b/a TNT Vacations, and Viva Resorts, Inc., d/b/a Club Fortuna Beach, Defendants.
• Court: U.S. District Court — District of Rhode Island

Page 190

165 F.Supp.2d 190

Simone Lacroix MCELHENY, Plaintiff, v. TRANS NATIONAL TRAVEL, INC., d/b/a TNT Vacations, and Viva Resorts, Inc., d/b/a Club Fortuna Beach, Defendants.

No. 00-493L.

United States District Court, D. Rhode Island.

September 20, 2001.

E. Martin Stutchfield, Winograd, Shine & Zacks, P.C., Providence, R.I., for plaintiff.

Craig S. Harwood, Rubin, Hay & Gould, P.C., Framingham, MA, for defendants.

ORDER

LAGUEUX, District Judge.

There being no objection filed to the Report and Recommendation of United States Magistrate Judge David L. Martin filed on August 24, 2001 in the above-captioned matter, the Report and Recommendation is accepted and adopted pursuant to Title 28 United States Code § 636(b)(1). Therefore, defendant Trans National Travel, Inc.'s Motion for Summary Judgment is granted on both counts of the Complaint.

REPORT AND RECOMMENDATION

MARTIN, United States Magistrate Judge.

Before the court is the Motion of Defendant Trans National Travel, Inc. (TNT), to dismiss it from the instant action pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Alternatively, TNT requests that the Court dismiss the action under the doctrine of forum non conveniens or transfer the action to the United States District Court for the District of Massachusetts on the basis of a forum selection clause. Plaintiff Simone LaCroix McElheny (Plaintiff) has objected to the motion. This matter has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and D.R.I. Local R. 32(a). After listening to oral arguments, reviewing the memoranda submitted, and performing independent research, I recommend that TNT's motion for summary judgment be granted.

Facts¹ and Travel

TNT is a Massachusetts corporation, see Notice to United States District Court of Removal (Notice of Removal) at ¶ 3(b), engaged in the business of selling and marketing vacations and related services to Rhode Island consumers.² Viva Resorts, Inc. (Viva Resorts), is a corporation doing business as Club Fortuna Beach on Grand Bahama Island.³ Plaintiff is a Rhode Island resident who booked a vacation with TNT on or about March 10, 1999, through a Rhode Island travel agent,⁴ to stay at the Club Fortuna Beach resort. Plaintiff alleges that she paid for the vacation but did not sign TNT's tour participant contract. Rather, she avers, she signed only on the line indicating that she declined to buy travel insurance. See Plaintiff's SMF ¶ 12; see also Plaintiff's Aff. ¶ 5; Supplemental Affidavit of Simone LaCroix (Plaintiff's Supp. Aff.) ¶ 2. Plaintiff additionally states that she never received or read the Tour Participant Contract, see Plaintiff's Aff. ¶ 11, which contains TNT's disclaimer of liability, see Affidavit of Diana Haley in Support of Motion of Trans National Travel, Inc. to Dismiss or, in the Alternative, for Summary Judgment (Haley Aff.), Ex. A, TNT Vacations Brochure, 1999 TNT Vacations Tour Participant Contract at i31.

Plaintiff states that on March 20, 1999, the second day of her vacation, see Plaintiff's Aff. ¶ 24, she met with a certain representative⁵ at the Club Fortuna Beach. Plaintiff asserts that this representative intended to sell Plaintiff vacation-related products, including a timeshare. Plaintiff pulled up a chair to sit with the representative, but due to a defect (Plaintiff alleges that the chair had only three legs), Plaintiff slid and fell off the chair. As a result, Plaintiff broke her ankle. Plaintiff's injury required medical treatment.⁶

Plaintiff filed the instant lawsuit against TNT and Viva Resorts (collectively Defendants) in the Rhode Island Superior Court for Providence and Bristol Counties on July 18, 2000. In Count. I of her Complaint, Plaintiff alleges that Defendants breached their duty to Plaintiff by failing to ensure that the premises were safe and by failing to warn Plaintiff that the chair was defective. Plaintiff alleges in Count II that TNT violated the Rhode Island Deceptive Trade Practices Act by forging her signature on a reservation form agreement and using that form in an attempt to induce Plaintiff to drop her claim.

On September 29, 2000, TNT removed the action to federal court. The Motion of Trans National Travel, Inc. to Dismiss or, in the Alternative, for Summary Judgment (Motion for Summary Judgment) was filed on October 20, 2000. Plaintiff on November 30, 2000, filed her Objection to Defendant's Motion for Summary Judgment and Motion to Dismiss (Plaintiff's Objection). The Motion for Summary Judgment was subsequently referred to this Magistrate Judge, and a hearing was held on February 8, 2001. The Motion for Summary Judgment was taken under advisement.

TNT subsequently filed the Motion of Trans National Travel, Inc. for Leave to File a Supplemental Affidavit in Support of its Motion to Dismiss or, in the Alternative, for Summary Judgment (Motion for Leave). Plaintiff objected to that motion as well, and a hearing was held on that matter on March 28, 2001. The court determined that it would decide the Motion for Leave when it addressed the underlying Motion for Summary Judgment.

Discussion

I. Law

A. 12(b)(6)

In considering a motion to dismiss under Rule 12(b)(6), the court must accept as true all well pleaded allegations and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir.1999); Gross v. Summa Four, Inc., 93 F.3d 987, 991 (1st Cir.1996). "Dismissal ... is only appropriate if the complaint, so viewed, presents no set of facts justifying recovery." Cooperman, 171 F.3d at 46; see also Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). The court, in ruling on a 12(b)(6) motion, "does not look beyond the four corners of the complaint." Kachougian v. United States, No. 96-508-T, 1999 WL 973533, at *3 (D.R.I. Sept.10, 1999). "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment...." FedR. CivP. 12(b)(6).

In the instant case, "[s]ince the motion is captioned as one for summary judgment and includes supporting extrinsic materials and since [Plaintiff] responded with her own affidavit, the motion is treated as one for summary judgment." Patrick v. Massachusetts Port Auth., 141 F.Supp.2d 180, 186 (D.N.H.2001); see also Sova v. Apple Vacations, 984 F.Supp. 1136, 1137 (S.D.Ohio 1997) ("Since the parties have presented evidence outside the pleadings, the court will treat this motion as one for summary judgment."); Ramage v. Forbes Int'l Inc., 987 F.Supp. 810, (C.D.Cal.1997) ("If a Rule 12(b)(6) motion presents matters outside the pleadings, the motion shall be treated as one for summary judgment and disposed of under Rule 56."); Honeycutt v. Tour Carriage, Inc., 997 F.Supp. 694, 698 (W.D.N.C.1996) ("Because [the defendants] have submitted affidavits in support of their motions, their motion to dismiss is converted to a motion for summary judgment.").

B. Summary Judgment

When determining a motion for summary judgment, a court must review the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 820 (1st Cir.1991); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir.1992).

The moving party bears the initial burden of showing the absence of any genuine issue of material fact, which may be met either by affirmative evidence or by pointing out a lack of evidence pertaining to an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant's initial burden is met, the burden shifts to the nonmoving party to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted) (italics in original).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (italics in original). The Court of Appeals for the First Circuit has stated that:

The language of Rule 56(c) sets forth a bifurcated standard which the party opposing summary judgment must meet to defeat the motion. He must establish the existence of an issue of fact which is both "genuine" and "material." A material issue is one which affects the outcome of the litigation. To be considered "genuine" for Rule 56 purposes a material issue must be established by "sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial." The evidence manifesting the dispute must be "substantial[,]" going beyond the allegations of the complaint.

Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) (citations omitted) (first alteration in original).

Thus, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushit...