         Case: 14-13889   Date Filed: 03/30/2015   Page: 1 of 8


                                                      [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 14-13889
                      Non-Argument Calendar
                    ________________________

                 D.C. Docket No. 1:14-cv-21033-UU



JOHN C. MCARTHUR,
SANDRA S. MCARTHUR,
his wife,

                                           Plaintiffs - Appellants,

versus

KERZNER INTERNATIONAL
BAHAMAS LIMITED,
a Bahamian company,
KERZNER INTERNATIONAL LIMITED,
a Bahamian company,
ISLAND HOTEL COMPANY LIMITED,
a Bahamian company,
PARADISE ISLAND LIMITED,
a Bahamian company,

                                           Defendants - Appellees.
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                           ________________________

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

                                  (March 30, 2015)

Before JULIE CARNES, FAY and DUBINA, Circuit Judges.

PER CURIAM:

      Appellants John C. McArthur and his wife, Sandra S. McArthur, appeal the

district court’s order dismissing their civil action under forum non conveniens.

After reviewing the record and reading the parties’ briefs, we affirm the order

dismissing appellants’ complaint.

                                    I.    BACKGROUND

      The McArthurs were part of a group of guests who traveled to the Atlantis

Resort in The Bahamas with the University of Kansas (“KU”) for a basketball

tournament. Travel agent Cate and Mason Travel Partners (“travel agent”) made

KU’s reservations and contracted with Atlantis. The contract includes two

provisions in which the travel agent agrees to notify their clients that when they

book their reservation through the travel agent, they are subject to certain terms

and conditions governing their stay at Atlantis. A section of the contract indicates

that the additional terms and conditions are available on the Atlantis website.

[Doc. DE-16-1, Ex. 1 ¶ 5, ¶ 8.] The terms and conditions provide that the guest


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will be asked to sign a form agreeing to certain terms related to any claims the

guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically

states that “I agree that any claim I may have against [several named defendants

and others], along with their parent, related and affiliated companies at every tier, .

. . resulting from any events occurring in The Bahamas shall be governed by and

construed 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.” [Id. ¶ 8.]

      Upon their arrival at Atlantis, the McArthurs signed a written registration

card entitled “Acknowledgement, Agreement and Release” that includes a choice

of law provision and forum selection clause:

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

[Id. ¶ 10 & Exh. 4.]

      During his stay at the Atlantis Resort, John McArthur slipped and fell on a

sidewalk adjacent to the water park attraction known as the Rapid River. In March

2014, the McArthurs filed an amended complaint in federal district court, alleging

negligence in connection with John McArthur’s fall. The amended complaint also

alleged that as a result of John McArthur’s injuries, his wife suffered the
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diminishment of her husband’s companionship and consortium. The amended

complaint invoked the district court’s diversity based subject-matter jurisdiction

under 28 U.S.C. § 1332. It alleged that the McArthurs were domiciled in Kansas,

defendant Kerzner International was a Bahamian company with its principal place

of business in Florida, defendant Kerzner Bahamas was a Bahamian company with

its principal place of business in Florida, defendant Island Hotel was a Bahamian

company and a subsidiary of Kerzner International and Kerzner Bahamas, and

defendant Paradise Island was a Bahamian company and a subsidiary of Kerzner

International and Kerzner Bahamas.

       The defendants moved to dismiss the amended complaint on the basis of

forum non conveniens. The district court granted the motion. The McArthurs then

perfected this appeal. 1


       1
          This court issued a jurisdictional question asking the parties to address whether the
pleadings sufficiently alleged the citizenship of the parties, in particular, Island Hotel and
Paradise Island, to establish the district court’s subject-matter jurisdiction over the case. See
Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304‒05 (11th
Cir. 2011) (stating that the court must sua sponte raise its concerns regarding subject-matter
jurisdiction). The McArthurs concede that the amended complaint failed to allege sufficiently
the citizenship of Island Hotel and Paradise Island, but move to amend the amended complaint to
add the allegations that both defendants were Bahamian Companies with their principal places of
business in the Bahamas. The party invoking the court’s jurisdiction bears the burden of
establishing federal jurisdiction, and when the pleadings’ allegations of citizenship and
jurisdiction are insufficient, a party may amend them in this court. See 28 U.S.C. § 1653;
Mallory, 663 F.3d at 1305. The McArthurs’ allegations cure the pleading deficiencies as to
Island Hotel and Paradise Island, and the amended complaint sufficiently alleges that the other
defendants are Bahamian companies with their principal places of business in Florida. Because
the proposed amendments show that no defendant is a citizen of Kansas, where the McArthurs
are domiciled, the district court’s subject-matter jurisdiction is satisfied. Thus, we grant the
McArthur’s motion to amend the amended complaint and entertain the instant appeal.
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                                    II.   DISCUSSION

      This court reviews a district court’s order of dismissal based on forum non

conveniens for an abuse of discretion. Aldana v. Del Monte Fresh Produce N.A.,

578 F.3d 1283, 1288 (11th Cir. 2009). In addition, we review de novo a district

court’s construction of a contractual forum selection clause. Global Satellite

Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004).

      As a preliminary matter, 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.” Pappas v. Kerzner

Int’l Bahamas Ltd., 585 F. App’x 962, 965 (11th Cir. 2014) (quoting Krenkel v.

Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009)). The party

seeking to avoid the forum selection clause bears the burden of showing

exceptional circumstances, predicated on public interest considerations to justify

disturbing the forum selection clause. Atl. Marine Const. v. U.S. Dist. Court, ___

U.S. ___, ___, 134 S. Ct. 568, 581 (2013).

      A forum selection clause will be invalidated where “(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.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir.

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2009). To determine whether there was fraud or overreaching in a non-negotiated

forum selection clause, the court looks 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.” Id.

      The McArthurs contend that the forum selection clause is invalid because

the contents of the forum selection clause were not reasonably communicated to

them, and the travel agent never informed them about the forum selection clause.

However, as the district court found, the McArthurs had constructive notice of the

Atlantis Resort’s terms and conditions that the travel agent received. The travel

agent, via its contract with the resort, knew that the attendees at the resort were

subject to certain additional terms and conditions, agreed to notify their clients

regarding the terms and conditions, and knew where to obtain the specific terms

and conditions. Thus, because the McArthurs’ trip involved travel arrangements

made by the travel agent, they are charged with constructive notice of the terms

and conditions in the contract the travel agent had with the Atlantis Resort.

      Moreover, upon their arrival at the resort, the McArthurs signed a written

registration form that read, in part, that the guest agrees that any claims he may

have against the resort shall be governed by the laws of The Bahamas and that the

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Supreme Court of The Bahamas is the exclusive venue. [R. DE 16-5.] By signing

this form, the McArthurs agreed to the forum selection clause. Hence, we

conclude that the forum selection clause is valid. 2

       In addition, The Bahamas is an adequate alternative forum, and the public

interest factors weigh in favor of transfer. See Atl. Marine, ___ U.S. at ___, 134 S.

Ct. at 582 (discussing forum selection clauses in the 28 U.S.C. § 1404(a) transfer

context). First, the McArthurs do not contest that The Bahamas provides an

adequate alternative forum, and they do not assert that they could not reinstate their

lawsuit in The Bahamas without undue inconvenience or prejudice. Second, the

McArthurs fail to meet their burden to show that this case is exceptional and that

the forum selection clause should not apply. Their brief is devoid of any claims as

to court congestion, the burden of jury duty, or the difficulties in resolving conflict

of law problems and applying foreign law. Third, the McArthurs fail to challenge

the substantial interests of The Bahamas. In sum, the McArthurs cannot show that

enforcement of the forum selection clause “would be unfair or unreasonable under

the circumstances.” Krenkel, 579 F.3d at 1281. Accordingly, we conclude that the

       2
         The McArthurs also argue that the forum selection clause is invalid because it was
obtained through fraud. Their argument centers on their claim that the defendants have a policy
that allows guests to delete portions of the guest registration card but they do not inform the
guests of that right, and therefore, the defendants obtain the signatures on the cards through
fraud. This contention is meritless because they cannot show that the forum selection clause
itself was included in the contract due to fraud. See Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d
1231, 1236 (11th Cir. 2011 ) (noting that in order for a forum selection clause to be invalidated
on the basis of fraud or overreaching, a plaintiff must specifically allege that the clause was
included in the contract because of fraud).
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district court properly gave effect to the forum selection clause and granted the

defendants’ motion to dismiss.3

                                       III.     CONCLUSION

       For the foregoing reasons, we affirm the district court’s order granting

defendants’ motion to dismiss based on forum non conveniens. We also grant the

McArthurs’ motion for leave to amend the amended complaint to cure the

deficiency in the pleadings.

       AFFIRMED and Motion for leave to amend GRANTED.




       3
         The McArthurs also take issue with the district court’s order denying their motion for
leave to amend the complaint to add Brookfield Asset Management, Inc., the new owner of the
Atlantis Resort, as a defendant. The district court did not abuse its discretion in denying the
motion because the language of the forum selection clause applies equally to any entity that has
owned, operated, or marketed the Atlantis Resort. [R. DE 16-1, Ex. 4 & 16-3.] See Garfield v.
NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (stating that court reviews for abuse of
discretion a district court’s decision to grant or deny leave to amend a pleading).
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