The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff brings this action asserting claims for personal injury against Defendants Baron and Francis*fn1 and claims for negligent diversion of vessel and failure to warn against Defendant Carnival Destiny Cruise Lines. Carnival Destiny Cruise Lines ("Defendant") moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6). In the alternative, Defendant requests that the Court transfers this matter to the Southern District of Florida pursuant to 28 U.S.C. § 1631. For the reasons set forth below, the Court will treat this motion as a motion to transfer pursuant to 28 U.S.C. § 1404(a) and transfer this case to the Southern District of Florida.
Plaintiff booked a cruise though her travel agency in early December 2003. On December 13, 2003, Defendant mailed the boarding pass and passenger ticket contract to the travel agency to be distributed to Plaintiff.
The first page of the cruise ticket contract contained an underlined heading entitled "IMPORTANT NOTICE TO ALL GUESTS." This heading was meant to draw passengers' attention to clauses thirteen through seventeen because they contained "IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS, AND EMPLOYERS AND OTHERS."
Clause 15 is a forum selection clause, which provides that:
It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest's cruise, including travel to and from the vessel, shall be litigated, if at all, in and before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade county, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.
Plaintiff signed the "Guest Ticket Acknowledgment" form at the time she boarded the cruise ship. Plaintiff does not recall having reviewed the documents nor was she, or any other passengers, given the opportunity to negotiate any of the provisions of the contract. However, Plaintiff does not contest the validity of her signature on the acknowledgment form.
Plaintiff boarded the vessel on January 12, 2004. During the cruise, the vessel docked at the Island of Dominica. Plaintiff contends that Defendant diverted the vessel to Dominica from another destination. Neither Plaintiff nor Defendant provided the location at which the vessel was originally supposed to stop.
While ashore on Dominica, Plaintiff and several other passengers took a trip not sanctioned by Defendant and were injured in a van accident. Plaintiff alleges that Defendant Baron was operating the van recklessly, and in an effort to avoid colliding with an oncoming vehicle operated by Defendant Francis, the van ran into the side of a mountain. Plaintiff sustained multiple injuries.
Plaintiff commenced this action on December 30, 2005, asserting diversity jurisdiction under 28 U.S.C. § 1332 and proper venue under 28 U.S.C. § 1391. On June 7, 2006, Defendant moved to dismiss the claims against it pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6) based upon the forum selection clause. In the alternative, Defendant requests the Court to transfer this matter to the Southern District of Florida.
In federal courts, the effect of a contractual forum selection clause in a diversity case is determined by federal, not state, law. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995). Because "questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature, federal law applies in diversity cases ...