The Eleventh Circuit Court of Appeals reminds us that on a motion to dismiss which involves a determination of venue, affidavits filed in opposition may be considered. In Estate of Tore Myhra v. Royal Caribbean Cruise Lines, Inc., 695 F.3d. 1233 (11th Cir. 2012) plaintiff’s decedent estate filed suit seeking damages for injuries aboard a cruise ship and a subsequent death. Attached to the complaint was a document containing a forum selection clause which specifically provided that any litigation was to be brought in the Southern District of Florida. The attachment did not identify the applicable vessel or the date of passage. The defendant filed a motion to dismiss for improper venue supported by an affidavit that the cruise ship contract contained a forum selection clause naming Wales or England as the proper forum for filing suit. This prompted a counter affidavit by the attorney for the plaintiffs stating that he had obtained the terms and conditions from the defendants’ website. The defendant countered by filing a reply affidavit stating that the website had been “extensively modified” between the time of plaintiffs’ cruise and their attorneys website search.
The Appellate Court firmed the trial court’s holding that the terms and conditions in the ticket covering the plaintiffs cruise contained the forum selection clause designating Wales or England as the proper forum for litigation. The Appellate Court pointed out that there is an exception to the rule that in a 12(b)(3) motion to dismiss the facts of the complaint are to be taken as true that exception is when there is a question of venue. While the court takes the facts of the complaint as true it does only to the extent that they are uncontroverted by a defendant’s affidavits. When that occurs and there are conflicting affidavits, the court in the absence of evidentiary hearing is inclined to give greater weight to the plaintiffs version of the facts and to construe such facts in the light most favorable to the plaintiff. Having done so here, there was no error in the court finding for the defendant.
(Thanks to John Wagener of Chicago for submitting this decision)