Mauricio USME v. CMI Leisure Mgmt., Inc.

106 F.4th 1079

Mauricio USME, Lukasz Zuterek, Carolina Vasquez, Javier Perez,Johan Ortiz, Luz Gavilan, Marvin Paz, Plaintiffs-Appellants, v. CMI LEISURE MANAGEMENT, INC., Cruise Management International, Inc.,Vikand Medical Solutions, LLC, Defendants-Appellees.

No. 22-11324

United States Court of Appeals, Eleventh Circuit

Filed: June 28, 2024

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:21-cv-21191-DPG

Philip D. Parrish, Philip D. Parrish, PA, Miami, FL, Robert D. Peltz, The Peltz Law Firm, PA, Miami, FL, Louis Anthony Vucci, Louis A. Vucci, PA, Miami, FL, for Plaintiffs-Appellants.

Michael John Dono, Gilda M. Chavez, Annalisa Gutierrez, Jerry Dean Hamilton, Hamilton Miller & Birthisel, LLP, Miami, FL, Elisha Sullivan, Chartwell Law, Miami, FL, for Defendants-Appellees.

Before Jordan, Lagoa, and Marcus, Circuit Judges.

Jordan, Circuit Judge:

In March of 2020, the M/V Greg Mortimer set off on a cruise to the Antarctic but sailed head on into the COVID-19 storm. Seven of its crewmembers later filed suit against a number of companies in the Southern District of Florida, alleging that the pandemic exposed them to foreseeable harms, and that as a result of the ship's decision to sail, six of them were afflicted with the virus.

These crewmembers, however, had signed employment agreements with other companies containing forum-selection and choice-of-law clauses requiring many disputes to be brought in the Bahamas—the flag jurisdiction of the Greg Mortimer—under Bahamian law. Based on that forum-selection clause, the district court dismissed the action for forum non conveniens.

Following a review of the record, and with the benefit of oral argument, we vacate and remand. The defendants whom the crewmembers sued were not parties to the employment agreements, and on the record before us they cannot invoke the forum-selection clause in those agreements.

I

In reviewing an order dismissing a case for forum non conveniens, we accept as true the factual allegations in the complaint to the extent they are uncontroverted by affidavits or other evidence. See Otto Candies, LLC v. Citigroup, Inc., 963 F.3d 1331, 1336 (11th Cir. 2020). And we draw all reasonable inferences in favor of the plaintiffs. See id. Unless otherwise noted, the following facts are taken from the crewmembers' amended complaint and have not been contested by affidavits or other evidence.

A

In what now seems like a bad dream, the spring of 2020 saw the world stand still as a result of the COVID-19 pandemic. The Greg Mortimer, however, was scheduled to set sail from Ushuaia, Argentina, to the Antarctic on March 15, 2020. Just one day earlier, the Centers for Disease Control and Prevention had issued a "No Sail Order" applicable to cruise ships subject to the jurisdiction of the United States with a capacity of 250 or more passengers or crew operating in international waters. This "No Sail Order" was issued after about two months of previous guidance, warnings, and voluntary operation suspensions from various governmental and cruise industry entities.¹

In Ushuaia, representatives and employees of CMI Leisure Management, Inc. ("CMI Leisure Management"), Cruise Management International, Inc. ("CMI, Inc."), and Vikand Medical Solutions, LLC ("Vikand") met with officials of the Greg Mortimer to determine whether to commence the cruise in light of the burgeoning pandemic. At this meeting, one of the plaintiffs, Dr. Mauricio Usme (the ship's physician), strongly advised the companies against embarking on another cruise due to the health risks posed by COVID-19. But the companies did not heed his warning. Instead, the two CMI entities and Vikand made the decision for the Greg Mortimer to embark to the Antarctic as planned.

A week into the voyage, passengers began exhibiting COVID-19 symptoms and the ship activated its quarantine protocols. Argentina, however, would not allow the Greg Mortimer to return to port, so the ship was diverted to Uruguay. After anchoring in Uruguay, the passengers were permitted to disembark. But the crew were required to remain onboard, quarantined in their cabins. Eventually, on May 12, 2020, the crew were taken ashore in Uruguay and required to quarantine in their hotel rooms until they were repatriated at various times throughout the next month. In the meantime, at least 33 of the vessel's 85 crewmembers tested positive for COVID-19, including six of the seven plaintiffs (Dr. Usme, Luz Gavilan, Marvin Paz, Carolina Vasquez, Javier Perez, and Johan Ortiz).

B

The crewmember plaintiffs filed a federal action in the Southern District of Florida against CMI Leisure Management, CMI, Inc., and Vikand. In their amended complaint, they asserted claims under the Jones Act, 46 U.S.C.A. §§ 30104, as well as claims for negligence and maintenance and cure under general maritime law for their physical and emotional distress while onboard.²

The defendants moved to dismiss the amended complaint for improper venue, or alternatively, for failure to state valid claims. They argued that each of the crewmembers had signed employment agreements that required all disputes arising from their employment to be brought in the Bahamas and to be governed by Bahamian law. According to the defendants, therefore, venue in the Southern District of Florida was improper.

The crewmembers' employment agreements each contained the following choice of law and forum-selection provision:

I further agree that any dispute of any nature arising out of this Contract of Employment or my employment onboard the vessel shall be governed by the Laws of the Vessel's Flag State, except as expressly provided herein and any disputes hereunder shall be adjudicated in that jurisdiction only. . . .

The parties to this contract hereby stipulate that the terms and conditions laid down herein shall be subject to the applicable provisions of the Maritime Law and Regulations of the country under which Flag the Vessel is sailing. Any dispute as to the terms and conditions of this contract shall be resolved in accordance with the Maritime Law and the country under which Flag the Vessel is sailing.

See Composite Employment Agreements, D.E. 17-1-17-2. As noted earlier, the Greg Mortimer was flagged in the Bahamas.

But the defendants sued by the crewmembers—CMI Leisure Management, CMI, Inc., and Vikand—were not parties to the employment agreements. Ms. Vasquez, Mr. Perez, Mr. Ortiz, Ms. Gavilan, and Mr. Paz were all employees of non-party CMI Leisure, Ltd. Their agreements were signed by CMI Leisure Management on behalf of CMI Leisure, Ltd., but "as agents only." Dr. Usme and Mr. Zuterek were employees of non-party Greg Mortimer Owner Ltd. Their agreements were signed by CMI, Inc. on behalf of Greg Mortimer Owner Ltd., but again "as agents only."³

C

The district court noted that a Rule 12(b)(3) motion to dismiss for improper venue is the incorrect procedural vehicle to enforce a forum-selection clause where, as here, venue was otherwise proper. The court nevertheless granted the defendants' motion to dismiss on forum non conveniens grounds "in the interest of judicial economy." D.E. 38 at 4.⁴

In its order, the district court ruled that it could consider the forum-selection clause contained in the employment agreements attached as exhibits to the motion to dismiss and that CMI, Inc. and CMI Leisure Management were entitled to enforce that clause under the doctrine of equitable estoppel. See id. at 6-8. The court also ruled that Vikand—also a non-party to the agreements—was equally entitled to enforce the forum-selection clause because the crewmembers' claims against it were so "closely related to the dispute that it [was] foreseeable" that those claims would be subject to the forum-selection provision. See id. (internal citation omitted). Having found the forum-selection clause valid, and enforceable by the defendants, the court utilized the "modified" forum non conveniens analysis from Atlantic Marine Construction Co. v. U.S. District Court for Western District of Texas, 571 U.S. 49, 62, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013), and concluded that dismissal was warranted. See D.E. 38 at 4-5, 9-10.

II

Because "[t]he forum non conveniens determination is committed to the sound discretion of the [district] court," we review its dismissal order for abuse of discretion. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). "[W]here the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference." Id.

On the other hand, plenary review governs the enforcement of a forum selection clause and the application of equitable estoppel. See Krenkel v. Kerzner Int'l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009); Bah. Sales Assoc., LLC v. Byers, 701 F.3d 1335, 1340 (11th Cir. 2012). Any findings of fact relevant to the enforceability of a forum selection clause are reviewed for clear error. See Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000).

III

The district court ruled that CMI Leisure Management, CMI, Inc., and Vikand—the defendants here and all non-parties to the employment agreements—were entitled to enforce the forum-selection clause under the doctrine of equitable estoppel. The court then employed the modified forum non conveniens balancing test from Atlantic Marine and concluded that dismissal was appropriate. Because we hold that equitable estoppel does not apply under these circumstances, we vacate and remand for further proceedings.

A

Forum non conveniens is a flexible, common law doctrine that provides a district court with inherent power to decline to hear a case in which there is proper jurisdiction and venue. See Otto Candies, 963 F.3d at 1338. "[T]he central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient[.]" Piper Aircraft, 454 U.S. at 256, 102 S.Ct. 252....