           Case: 18-13397   Date Filed: 05/22/2019   Page: 1 of 14


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13397
                         Non-Argument Calendar
                       ________________________

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



MELISSA WYLIE,

                                                            Plaintiff-Appellant,

                                  versus

ISLAND HOTEL COMPANY LIMITED, et al.,

                                                         Defendants-Appellees.

                       ________________________

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

                              (May 22, 2019)

Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:
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      Melissa Wylie appeals the district court’s post-remand dismissal of her

negligence claims against Island Hotel Company Limited, Atlantis Holdings

(Bahamas) Limited, and Bref Bahamas Limited stemming from her alleged slip

and fall at the Atlantis Resort in The Bahamas. The district court cited two

alternative grounds for dismissal—forum non conveniens and a forum-selection

clause contained in an agreement signed by Ms. Wylie’s husband.

                                         I

      While on vacation in The Bahamas, Ms. Wylie, her husband, and her young

daughter visited the Atlantis Resort’s water park and participated in its “Sea

Squirts Little Aquarist Helpers Experience.” Before entering the experience, Ms.

Wylie’s husband signed a single page Acknowledgment, Agreement and Release,

which contained a forum-selection clause naming The Bahamas as the exclusive

venue for litigation stemming from events occurring in The Bahamas between the

parties covered by the agreement. Although Ms. Wylie did not sign the agreement,

her husband named Ms. Wylie and their daughter as members of his traveling party

and stated that he “ha[d] authority to sign on behalf of [him]self and the members

of his traveling party.” D.E. 29-2.

      While accompanying her daughter into the experience, Ms. Wylie alleges

that she slipped on a step and fell, causing her to suffer severe injuries to her left

knee, neck, back, and ankle. Her injuries were severe enough to require surgery.


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Ms. Wylie subsequently sued Island Hotel Co., Atlantis, and Bref Bahamas in the

United States District Court for the Southern District of Florida, alleging that the

defendants were negligent by failing to maintain safe premises and failing to warn

her of dangerous conditions.1

       The defendants moved to dismiss Ms. Wylie’s claims based on the forum-

selection clause in the agreement signed by Ms. Wylie’s husband. In response,

Ms. Wylie argued the agreement was not valid or enforceable against to her

because she never signed it and had no notice of its forum-selection clause. See

Wylie v. Island Hotel Co. Ltd., No. 15-24113-CIV, 2017 WL 5483257, at *1 (S.D.

Fla. Jan. 5, 2017) (hereinafter Wylie I). The district court concluded that the

forum-selection clause was valid and granted the defendants’ motion to dismiss.

See id. (citing Krenkel v. Kerzner Int’l Hotels, Ltd., 579 F.3d 1279, 1281 (11th Cir.

2009) (stating that a forum-selection clause is presumptively valid and enforceable

unless the plaintiff produces evidence that enforcement would be unfair or

unreasonable)). On appeal, we reversed the district court, holding that it failed to

consider some of Ms. Wylie’s arguments about the validity and enforceability of

the forum-selection clause. See Wylie v. Kerzner Int’l Bahamas Ltd., 706 F. App’x

577, 580 (11th Cir. 2017).


1
 Ms. Wylie resided in Illinois when she filed the operative complaint, but now resides in North
Carolina. The defendants maintain their principal places of business in The Bahamas.

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      On remand, the district court ruled that (1) regardless of the forum-selection

clause, the traditional doctrine of forum non conveniens justified dismissal, and (2)

the forum-selection clause was valid and enforceable. See Wylie v. Island Hotel

Co. Ltd., No. 15-24113-JLK, 2018 WL 3421374, at *2–*4 (S.D. Fla. July 13,

2018) (hereinafter Wylie II). In this second appeal, Ms. Wylie argues that the

district court failed to follow the mandate of Wylie I, it abused its discretion

applying forum non conveniens, and it erred in concluding the forum-selection

clause was valid and enforceable. After carefully reviewing the record and the

parties’ briefs, we affirm.

                                        II

      We review the district court’s application of our mandate de novo. See

Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331

(11th Cir. 2005). Ms. Wylie argues that, by dismissing her claims under the

doctrine of forum non conveniens, the district court deviated from our mandate and

violated the law of the case doctrine. We disagree.

      The law of the case doctrine states that all “findings of fact and conclusions

of law by an appellate court are generally binding in all subsequent proceedings in

the same case in the trial court or on a later appeal.” Id. (quoting Heathcoat v.

Potts, 905 F.2d 367, 370 (11th Cir. 1990)) (internal quotation marks omitted). The

mandate rule is “a specific application of the law of the case doctrine,” requiring a


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district to enter an order in strict compliance with our mandate, without altering,

amending, or reexamining it. Id. (internal quotation marks and citation omitted).

The mandate rule does not, however, prevent the district court from addressing an

issue that was not “determined, explicitly or by necessary implication,” on the

previous appeal. Id. at 1332. See also Wheeler v. City of Pleasant Grove, 746

F.2d 1437, 1440 (11th Cir. 1984). “[T]he trial court is free to address, as a matter

of first impression, those issues not disposed of on appeal.”            Transamerica

Leasing, 430 F.3d at 1331 (holding that the district court could address a standing

issue on remand that was not decided on the previous appeal).

      In Wylie I, we reversed the dismissal based on the forum-selection clause

because the district court failed to consider certain arguments about the clause’s

validity and enforceability. See Wylie, 706 F. App’x at 579–80. On remand,

however, the district court cited an alternative ground to dismiss Ms. Wylie’s

claims—the traditional forum non conveniens factors.        We did not review or

conduct a traditional forum non conveniens analysis on appeal in Wylie I, as our

opinion focused on whether the forum-selection clause required Mrs. Wylie to

litigate her claims in The Bahamas. Id. Stated another way, our opinion in Wylie I

did not “determin[e], explicitly or by necessary implication,” whether the

traditional forum non conveniens factors justified dismissal. See Transamerica




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Leasing, 430 F.3d at 1332. The district court therefore did not deviate from our

mandate by dismissing Ms. Wylie’s claims on that ground.

                                        III

      Ms. Wylie also argues that district court committed reversible error in

dismissing her claims for forum non conveniens. We reverse a district court’s

dismissal for forum non conveniens only “when there has been a clear abuse of

discretion.” SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382

F.3d 1097, 1100 (11th Cir. 2004) (quoting Piper Aircraft Co. v. Reyno, 454 U.S.

235, 257 (1981)). Our review under this standard “is ‘extremely limited’ and

‘highly deferential.’” See Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d

1283, 1288 (11th Cir. 2009) (quoting In re Clerici, 481 F.3d 1324, 1331 (11th Cir.

2007)). It “acknowledges that ‘there is a range of choice for the district court and

so long as its decision does not amount to a clear error of judgment we will not

reverse even if we would have gone the other way had the choice been ours to

make.’” Id. (quoting McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)). In

a forum non conveniens analysis, specifically, a district court abuses its discretion

when it follows the wrong legal standard, fails to reasonably balance the relevant

factors, or only looks at the current forum’s disadvantages without weighing its

advantages.   See SME Racks, 382 F.3d at 1100.           But “where the court has

considered all relevant public and private interest factors, and where its balancing


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of these factors is reasonable, its decision deserves substantial deference.” Piper

Aircraft, 454 U.S. at 257.

      To obtain a dismissal under forum non conveniens, a defendant must

establish that “(1) an adequate alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his

suit in the alternative forum without undue inconvenience or prejudice.” Leon v.

Miller Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). When the plaintiff is a

United States citizen in a federal forum, and a foreign defendant seeks to dismiss

the plaintiff’s claims under forum non conveniens, the citizen’s choice is afforded

greater deference. See SME Racks, 382 F.3d at 1101. In such a case, the district

court should dismiss for forum non conveniens only when it finds “positive

evidence of unusually extreme circumstances, and should be thoroughly convinced

that material injustice is manifest before exercising any such discretion as may

exist to deny a United States citizen access to the courts of this country.” Id.

(quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 n.7 (11th Cir.

1983)) (internal quotation marks omitted). That is not to say that dismissal under

forum non conveniens is automatically inappropriate when a citizen sues a foreign

defendant in a U.S. forum. See Aldana, 578 F.3d at 1303. See also Tazoe v.

Airbus S.A.S., 631 F.3d 1321, 1335 (11th Cir. 2011). The touchstone of forum non




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conveniens is convenience, and no single factor is dispositive. See La Seguridad,

707 F.2d at 1307.

      Ms. Wylie does not deny that The Bahamas is an adequate alternative forum.

Nor does she contend that cannot reinstate her suit there without undue

inconvenience or prejudice. Instead, she argues that the district court unreasonably

balanced the private and public factors—the second prong of the forum non

conveniens analysis. See Leon, 251 F.3d at 1311. We therefore focus of our

review on those factors. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d

1324, 1330 (11th Cir. 2004).

      The district court concluded that both the private and public factors weighed

in favor of dismissal. See Wylie II, 2018 WL 3421374, at *2. This was not an

abuse of discretion.

                                         A

      At the outset, the district court applied the correct legal standard and

acknowledged the strong presumption that afforded to a U.S. citizen suing in a

federal forum. See SME Racks, 382 F.3d at 1101. Ms. Wylie asserts that “[t]he

record is bereft of any actual analysis that applies the presumption in favor of Mrs.

Wylie’s chosen forum when balancing the private interest factors,” but our review

proves otherwise.




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      The district court citied the applicable standard from SME Racks, 382 F.3d

at 1101–02, and it expressly stated that it would apply the high level of deference

afforded to a U.S. citizen in a federal forum. See Wylie II, 2018 WL 3421374, at

*2. In analyzing whether the private factors favored adjudicating Ms. Wylie’s

claims in The Bahamas, the district court also noted that it was “applying the

appropriate level of deference to Plaintiff’s choice of forum.” Id. This case is

therefore unlike others where we have concluded that the district court abused its

discretion by not affording the plaintiff this presumption. Compare SME Racks,

382 F.3d at 1102 (where the district court “failed to articulate the relevant

standards [for plaintiffs that are citizens of the United States] and failed to apply

any presumption in its analysis”), with Tazoe, 631 F.3d at 1335 (where the district

court “articulated the correct standard [and] gave [heightened] deference to the

[citizen-plaintiff’s] choice of forum”).

                                           B

      The district court also balanced the relevant private factors, including (1)

“ease of access to sources of proof”; (2) “availability of compulsory process for

attendance of unwilling, and the cost of obtaining attendance of willing,

witnesses”; (3) “possibility of view of premises, if . . . appropriate to the action”;

and (4) “all other practical problems that make trial of a case easy, expeditious and

inexpensive.” Tazoe, 631 F.3d at 1330 (quoting Piper Aircraft, 454 U.S. at 241


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n.6). The district court concluded that the private factors weighed in favor of

dismissal because the incident giving rise to these claims occurred in The

Bahamas, nearly all of the relevant evidence is located in The Bahamas, and a

number of witnesses reside in The Bahamas. See Aldana, 578 F.3d at 1293–94;

Satz v. McDonnel Douglas Corp., 244 F.3d 1279, 1284 (11th Cir. 2001). The

district court also noted that litigating her claims in The Bahamas, as opposed to

Miami, would not inconvenience Ms. Wylie because she resides in North Carolina

and would need to travel similar distances either way. 2

       Ms. Wylie does not challenge the district court’s conclusions related to the

location of the incident and the relevant evidence but argues that “[s]even of the

ten [witnesses] are unnamed” and that the defendants have failed to show why the

witnesses are unavailable in the United States. Given the standard of review, these

arguments are unconvincing.         We have never required defendants to “submit

affidavits identifying precisely what witnesses they would call and what their

testimony would be.” Piper Aircraft, 454 U.S. at 258. The defendants need only

“provide enough information to enable the District Court to balance the parties’

interests.” Id. Here, the defendants provided the names and/or occupations of the

potential witness as well as their relevance, which was enough for the district court

to balance the parties’ interests. In any event, the fact that a witness resides in The

2
 The defendants assert that Ms. Wylie would need to travel approximately 710 miles to Miami,
Florida and approximately 771 miles to Nassau, Bahamas.
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Bahamas, even if he or she is technically available, still affects the convenience of

litigating this case in Miami. See Aldana, 578 F.3d at 1293–94 (affirming the

dismissal for forum non conveniens was warranted where most evidence and

witnesses were in Guatemala).       Moreover, if witnesses in The Bahamas are

unwilling to travel, the district court cannot compel them to testify. See Fed. R.

Civ. P. 45(c); Tazoe, 631 F.3d at 1334 (citing the court’s “inability to compel third-

party witnesses or the production of documents from those witnesses”). In our

view, the district court’s conclusion that the private factors weigh in favor of

dismissal was not an abuse of discretion.

                                            C

      The district court also concluded that the public factors weighed in favor of

dismissal. We agree. The “public interest factors include: (1) administrative

difficulties flowing from court congestion; (2) local interest in having localized

controversies resolved at home; (3) the interest in having the trial of a diversity

case in a forum that is familiar with the law governing the action; (4) the avoidance

of unnecessary problems in conflicts of law or in the application of foreign law;

and (5) the unfairness of burdening citizens in an unrelated forum with jury duty.”




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Aldana, 578 F.3d at 1305 (citing SME Racks, 382 F.3d at 1100–01). See also

Piper Aircraft, 454 U.S. at 241 n.6.3

       In concluding that the public interest factors favored The Bahamas, the

district court reasoned that The Bahamas has a superior interest in “determining the

standards of conduct and the scope of liability for companies that do business

there—particularly in a personal injury lawsuit involving The Bahamas’ largest

industry (tourism) and largest resort (Atlantis).” Wylie II, 2018 WL 3421374, at

*3. It also highlighted the burden that this case would impose on the courts and the

residents in Miami, who have no specific interest in the outcome. See Chierchia v.

Treasure Cay Servs., 738 F. Supp. 1386, 1389 (S.D. Fla. 1990).

       In response, Ms. Wylie argues that the U.S. has an interest in the litigation

because the defendants advertise and do business in Florida and throughout the

U.S.     Ms. Wylie does not articulate how—apart from affording personal

jurisdiction—the defendants’ advertising would make Miami a more convenient

forum to litigate her claims. It is even less clear how the any national interest

created by the defendants’ advertising would outweigh The Bahamas’ interests in

litigating a local incident involving Bahamian entities that are part of its most

predominant industry. See Horberg v. Kerzner Int’l Hotels Ltd., 744 F. Supp. 2d

3
  We have sometimes said that a district court is not required to consider the public interest
factors unless “the private factors are at or near equipoise.” See Leon, 251 F.3d at 1311. In this
case, however, the district court still weighed the public factors, which is the “better rule” and
the more common practice in our Circuit. See id.
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1284, 1296 (S.D. Fla. 2007) (concluding that “[t]he Bahamas ha[d] a much

stronger local interest in deciding” that action because the defendants were

Bahamian entities, the incident occurred in The Bahamas, the case involved a

prominent Bahamian resort, and tourism is the largest industry in The Bahamas).

      Ms. Wylie also argues that the district court erred in weighing the public

interest factors by not determining whether Bahamian or Florida law applied to her

claims. Although one of the public interest factors considers whether the case will

raise “unnecessary problems in conflicts of law or in the application of foreign

law,” see Aldana, 578 F.3d at 1305, the district court did not rely on this factor to

dismiss Ms. Wylie’s claims. Cf. Tazoe, 631 F.3d at 1334. We do not require the

district court to explicitly consider every private and public interest factor.

See Satz, 244 F.3d at 1282; Leon, 251 F.3d at 1311. For example, the district

court should not be required to perform a complex conflict-of-law analysis when

the plaintiff concedes, as Ms. Wylie does here, the two forums’ relevant laws are

“nearly identical.” See Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1234 &

n.20 (11th Cir. 1995); Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1171 (11th

Cir. 2009). See also Aldana, 578 F.3d at 1306 (Kravitch, J., dissenting). This is

especially true when the relevant private and public factors weigh in favor of

dismissal. See Leon, 251 F.3d at 1311. See also Satz, 244 F.3d at 1284.




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      In sum, the district court did not abuse its discretion in concluding that the

public interest factors supported dismissing Ms. Wylie’s claims.

                                        IV

      For these reasons, we affirm the district court’s dismissal for forum non

conveniens, and we do not address whether the forum-selection clause was valid

and enforceable against Ms. Wylie.

      AFFIRMED.




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