          Case: 17-10581   Date Filed: 09/01/2017   Page: 1 of 7


                                                    [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-10581
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:15-cv-24113-JLK

MELISSA WYLIE,

                                            Plaintiff - Appellant,

versus

KERZNER INTERNATIONAL BAHAMAS LIMITED,
a Bahamian company, et al.,

                                            Defendants,

ISLAND HOTEL COMPANY LIMITED,
a Bahamian company,
BREF BAHAMAS LTD.,
a Bahamian company,
ATLANTIS HOLDINGS (BAHAMAS) LIMITED,

                                            Defendants - Appellees.

                     ________________________

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

                           (September 1, 2017)
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Before HULL, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

      Melissa Wylie appeals the district court’s order enforcing a forum-selection

clause against her and dismissing her tort claims against Island Hotel Company

Limited, Atlantis Holdings (Bahamas) Limited, and Bref Bahamas Ltd. under the

doctrine of forum non conveniens. Following a review of the record and the

parties’ briefs, we reverse and remand this case to the district court for it to

consider the issues explained below.

                                              I

      Because we write for the parties, we assume their familiarity with the record

and only set forth what is necessary for our decision.

      While in the Bahamas, Mrs. Wylie, her husband, and their minor daughter

visited the Atlantis resort to participate in the Sea Squirts Experience. Sea Squirts

allows participants to enter Atlantis’ fish nursery to feed and play with marine life.

In order to participate, Atlantis requires attendees to sign a release form that

includes a forum-selection clause requiring all disputes to be litigated in the

Bahamas. Mr. Wylie signed the release on behalf of his family, specifically listing

his wife and daughter as the family members in his group.

      While accompanying her daughter on Sea Squirts, Mrs. Wylie slipped and

injured herself on a step leading into a feeding pool. Mrs. Wylie sued Island Hotel,



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Atlantis, and Bref in the United States District Court for the Southern District of

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

forum non conveniens, asserting that the forum-selection clause in the release

between Mr. Wylie and the defendants required that Mrs. Wylie’s suit be litigated

exclusively in the Bahamas. The district court granted the motion. Mrs. Wylie

timely appealed.1

                                                   II

       We review a district court’s decision to dismiss a suit on forum non

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

578 F.3d 1283, 1288 (11th Cir. 2009). We exercise plenary review over the

enforceability of a forum-selection clause. See Krenkel v. Kerzner Int’l Hotels

Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009).

                                                   III

       At the district court, Mrs. Wylie argued, among other things, that a valid

forum-selection clause did not exist between her and the defendants because she

never signed the release. See D.E. 34 at 3. The district court ruled that the

forum-selection clause in this case was presumptively valid, and that Mrs. Wylie

could only overcome that presumption by showing that the formation of the
1
  At the district court, the defendants argued that the release shielded all of them, even though
they were not all signatories, because they were related corporate entities whom Mrs. Wylie
alleged own the Atlantis resort. See D.E. 29 at 6. Without expressly passing on this issue, the
district court granted the defendants’ motion to dismiss pursuant to the release. See D.E. 37.
Mrs. Wylie has not challenged this on appeal.


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agreement containing the clause (the release) had been “induced by fraud or

overreaching.” D.E. 37 at 3 (quoting Krenkel, 579 F.3d at 1281). It then found no

foul play in part because the release prominently admonished the parties to read the

forum-selection clause before signing, and because it was foreseeable that

Mr. Wylie’s signature would bind Mrs. Wylie.             See id. (citing Lipcon v.

Underwriters at Lloyd’s, London, 148 F.3d 1285, 1299 (11th Cir. 1998)).

      The district court relied on Krenkel and Lipcon, two of our prior cases

dealing with forum-selection clauses, to reach its conclusion. In both cases, we

analyzed the enforceability of a forum-selection clause, presumed such clauses

were enforceable, and applied a four-prong test to determine whether enforcing the

clause would be “unfair or unreasonable under the circumstances.” Krenkel, 579

F.3d at 1281. That test, first developed in admiralty by the Supreme Court in M/S

Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), and refined in Carnival

Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590–94 (1991), states as follows:

            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.

Krenkel, 579 F.3d at 1281. Since then, the Supreme Court has clarified that “a

forum-selection clause pointing to a state or foreign forum is [enforced] through

the doctrine of forum non conveniens,” and that “forum-selection clauses control

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[the forum non conveniens inquiry] except in unusual cases.” Atl. Marine Const.

Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 580, 582 (2013).2

       In relying exclusively on Krenkel and Lipcon, however, the district court

overlooked the nuances in the argument raised by Mrs. Wylie. Mrs. Wylie attacks

the premise that a valid forum-selection clause exists as to her. The crux of her

argument is that she never entered into an agreement with the defendants—her

husband did—so a forum-selection clause within that agreement cannot bind her.

This goes to the formation of a contract, and whether non-signatories can be bound

by a related third-party’s contract, not necessarily whether a forum-selection clause

is enforceable.

       And this potentially presents a problem because, in a diversity case such as

this, see D.E. 25 ¶1, “state-law principles [generally] govern the formation of

contracts.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1330 (11th

Cir. 2016) (applying Georgia law to determine whether the plaintiff entered into an

arbitration agreement). Yet, in deciding whether to enforce a forum-selection

clause, federal law governs even in diversity suits. See Atl. Marine, 134 S. Ct. at

576 (noting diversity jurisdiction), 580.



2
  Krenkel and Lipcon also mentioned that, in addition to being presumptively enforceable,
forum-selection clauses are “presumptively valid.” D.E. 37 at 3. As we explain, however,
neither of those cases answered the precise question of whether, in diversity cases, validity is a
concept distinct from enforceability; and whether, if so, it is subject to a different source of
substantive law.


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      It seems to us, then, that the analytical framework (and substantive law)

governing the forum non conveniens inquiry in this diversity case depends on

whether the validity of a forum-selection clause is distinct from, and antecedent to,

its enforceability, or whether the validity of such a clause is just part of the federal

law of enforceability, as developed in Bremen and expounded upon through

Atlantic Marine. As the Fifth Circuit recently recognized in Barnett v. DynCorp

Int’l, L.L.C., 831 F.3d 296, 300–02 (5th Cir. 2016), the Supreme Court has not

answered this question. And neither have we.

      Atlantic Marine did not answer this question because it explicitly

presupposed a “valid” forum-selection clause. See 134 S. Ct. at 581 n.5. Bremen

and Carnival Cruise Lines were admiralty cases. See, e.g., Carnival Cruise Lines,

499 U.S. at 587. In Krenkel there was no dispute that both plaintiffs had executed

a valid agreement containing a forum-selection clause. See 579 F.3d at 1280–81.

And the district court in Lipcon had federal-question jurisdiction over the

plaintiffs’ claims under the “Securities Act of 1933, . . . the Securities Exchange

Act of 1934, . . . [and] the Racketeer Influenced and Corrupt Organizations Act.”

148 F.3d at 1289.

      The Fifth Circuit, after concisely summarizing the “[s]upport . . . for each

choice-of-law position,” Barnett, 831 F.3d at 302, was able to side-step the issue.

We do not know if this can be done here, but we need not decide the matter in the



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first instance. The district court’s order missed the potentially thorny issues at play

in this case, affecting our ability to “proper[ly] perform[ ] . . . [our] review

function.” Clay v. Equifax, Inc., 762 F.2d 952, 957 (11th Cir. 1985). Because the

district court’s reasoned input, with the aid of further briefing from the parties,

most serves judicial economy, we reverse the order of dismissal and remand this

case to the district court for it to consider these questions.

      REVERSED AND REMANDED.




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