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Werner v. Holland America Line, Inc.

United States District Court, D. Alaska

September 3, 2019

DONNA WERNER, Plaintiff,




         The matter comes before the Court on Defendant Holland America Line, Inc.'s (“Holland America”) Motion for Transfer of Venue (the “Motion” or “Motion for Transfer”).[1] Holland America requests that the Court transfer this case to the Western District of Washington pursuant to 28 U.S.C. § 1404(a). The Motion is opposed by Plaintiff Donna Werner and has been fully briefed.[2] The parties did not request oral argument, and the Court finds that it would not be helpful. For the reasons stated below, Defendant's Motion for Transfer of Venue is GRANTED.


         This matter concerns a negligence action brought by Plaintiff, a cruise passenger, and the cruise ship line. On or about June 13, 2016, Plaintiff Donna Werner and her husband booked a seven-day cruise aboard Defendant Holland America's M/S Noordam with ports in Seward, Alaska and throughout Southeast Alaska.[3] On September 1, 2016, Plaintiff was a passenger on Defendant's M/S Noordam Alaskan cruise.[4] On that day, Plaintiff was set to participate in the Tracy Arm Fjord and Glacier Explorer day trip, which included bus transportation to a smaller tour boat.[5] While exiting the bus, Plaintiff claims to have suffered personal injuries due to the negligence of Defendant or Defendant's agents, employees, or servants.[6]

         Plaintiff initiated this action in the Superior Court for the State of Alaska on August 23, 2018.[7] She prays the court award her general damages, specific damages for medical expenses and lost wages, and costs. On December 4, 2018, Defendant timely removed to this Court relying on federal diversity jurisdiction under 28 U.S.C. § 1332(a).[8]

         Defendant now moves for transfer of venue to the Western District of Washington pursuant to a forum selection clause in the Holland America Line Cruise Contract dated December 8, 2015 (“Cruise Contract”), which states in relevant part:

(B) Forum and Jurisdiction for Legal Action:
(i) Claims for Injury, Illness or Death:
All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever including without limitation those arising out of or relating to this Cruise Contract or Your Cruise, Land Sea Journey, Land Trip(s), or Air Package shall be litigated in and before the United States District Court for the Western District of Washington at Seattle, or as to those lawsuits over which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in King County, State of Washington, U.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts.[9]

         Holland America's Cruise Contracts are not executed on paper, but instead are an online agreement.[10] Passengers who were booked on Plaintiff's cruise must have agreed to the terms of the Cruise Contract as part of their online check-in process.[11] Specifically, passengers were required to scroll through the terms of the Cruise Contract and then must check a box on the webpage, which states “Terms & Conditions have been accepted on behalf of the selected guests.”[12] Defendant has submitted a copy of the Cruise Contract as an exhibit in support of its Motion.[13]

         Defendant also submitted an “exemplar” of the boarding documents that passengers are required to print before embarking on their cruise (“Express Documents”).[14] The physical Express Documents contain a page titled “contract” which confirms passengers (or an agent acting on passengers' behalf) have accepted the Cruise Contract during check-in.[15] The Express Documents also redirect passengers' attention to certain sections of the online Cruise Contract, specifically, Section 15 that contains the forum section clause.[16]

         Plaintiff opposes the Motion on several grounds. First, Plaintiff challenges the accuracy of the contractual terms due to “a lack of confidence in the exemplar” provided by Defendant.[17]Second, Plaintiff contends that the Cruise Contract, which she describes as an “internet adhesion contract, ” was not legally formed, and that therefore its provisions are not binding.[18] Third, Plaintiff suggests that even if the Cruise Contract was factually and legally formed, it should not be enforced because it is unfair.[19] The Defendant's Motion has been fully briefed and is now ripe for resolution.[20]


         Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought or to any district or division to which all parties have consented.” Generally, a motion for transfer of venue under § 1404(a) requires a court to balance multiple factors in its determination whether transfer is appropriate in a particular case.[21] The Ninth Circuit has identified the following relevant factors that courts may consider: “(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.”[22]

         However, the Supreme Court instructs that “[w]hen the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.”[23] In such case, a plaintiff's subsequent choice of forum is given no weight and a court “must deem the private-interest factors to weigh entirely in favor of the preselected forum.”[24] Only “extraordinary circumstances unrelated to the convenience of the parties” will justify denying a motion to enforce a forum selection clause.[25]

         In cases where parties have agreed upon a forum selection clause, the nonmoving party “must bear the burden of showing why the court should not transfer the case to the forum to which the parties agreed.”[26] Specifically, the nonmovant must “clearly show that enforcement would be unreasonable and unjust.”[27] Enforcement is unreasonable and unjust if the clause was “the product of fraud or overreaching;” if enforcing the clause would “effectively [deprive the nonmovant] of his day in court;” or if “enforcement would contravene a strong public policy of the forum in which the suit was brought.”[28]

         IV. ANALYSIS

         Holland America moves to transfer this case to the Western District of Washington, under 28 U.S.C. § 1404(a), pursuant to a forum selection clause contained in the Cruise Contract.[29] Plaintiff advances three arguments for why the Court should deny transfer:[30] (1) the content of the Plaintiffs Cruise Contract is not adequately proven by the exemplar documents provided by Defendant, [31] (2) even if they were, the Cruise Contract was not legally formed contract and its terms are not controlling here, [32] and (3) enforcing the forum selection clause would violate principles of fairness.[33] Defendant, in reply, counters all three arguments.[34] The Court considers each of these contentions in turn.

         A. Whether Defendant has Established the Existence and Terms of the Forum Selection Clause Agreed to by the Plaintiff

         As a threshold matter, the Court must address Plaintiff's indefinite challenge to the existence and accuracy of the contract terms provided by Defendant. For the reasons discussed below, the Court finds that the Defendant has sufficiently established the existence of a forum selection clause, and that the Plaintiff has not created a genuine dispute of fact regarding the terms contained in the Cruise Contract.

         Generally, the party moving for a venue transfer bears the burden of establishing the facts showing the proposed transferee forum is more appropriate for the action.[35] However, in the Ninth Circuit this burden shifts where such motion relies on a forum selection clause.[36] If the existence of a valid contract, and the forum selection clause contained therein, is undisputed, the forum selection clause is prima facie valid, and the party opposing the clause has the burden to show that the clause should not be enforced.[37]

         When such a motion relies on a forum selection clause whose existence is contested, the Court finds, the moving party bears the burden of proving that the clause exists and is binding on the parties.[38] Ultimately, “if the facts asserted by the non-moving party are sufficient to preclude enforcement of the forum selection clause, the non-moving party is entitled to remain in the forum it chose for suit unless and until the district court has resolved any material factual issues that are in genuine dispute.”[39]

         Here, Defendant has provided evidence of the existence of a contract between the parties which includes a forum selection clause. Defendant's Motion is accompanied by the declaration of Holland America's Senior Manager of Documentation and Access & Compliance, Tiffany G. Berman, and two exhibits.[40] The first exhibit is an exemplar of the documents Plaintiff received after her online check-in.[41] The second exhibit is a copy of the Cruise Contract.[42] Ms. Berman attests that “[a]ll guests booked on Mr. and Mrs. Werner's cruise were required to complete the online check-in, accept the terms and conditions of the Cruise Contract, and print their boarding passes prior to embarking on their cruise.”[43] Both exhibits contain a forum selection clause directing actions to the Western District of Washington.[44]

         In her response, Plaintiff “challenges the accuracy of the contract terms due to lack of confidence in the exemplar.”[45] However, Plaintiff has not made any claim or provided any evidence demonstrating a genuine dispute regarding the existence of the forum selection clause. Plaintiff notes that the exemplar boarding pass provided in Exhibit 1 displays different passenger identifying information than that which would have been found on Plaintiff's boarding pass.[46] Yet, Plaintiff does not dispute that she or her husband “booked” the cruise, nor does she dispute that she or her husband at one point possessed documents “identical or similar” to those presented by Defendant.[47] Nor does Plaintiff identify how the Defendant's exemplars materially differ from the terms accepted by the Plaintiff before her cruise.[48] Plaintiff only expresses a generalized and unsupported doubt regarding the terms of the Cruise Contract. Plaintiff's doubt, without evidence or allegation of an actual difference between Defendant's exhibits and the terms presented to Plaintiff, is not sufficient to create genuine dispute as to the existence of the forum selection clause.

         B. Whether a Valid Contract was Formed Between the Parties when Plaintiff Accepted the Electronic Cruise Contract Such That the Forum Selection Clause is Binding

         The Court next turns to the issue of whether the Cruise Contract is binding on the parties. In the Ninth Circuit, where parties form a contract that includes a forum selection clause, the clause will presumptively control.[49] The Cruise Contract contains a forum selection clause.[50] Therefore, the question of whether the Plaintiff formed a valid contract by clicking “Accept” on the online Cruise Contract is central to the disposition of the Motion.

         It is undisputed by the parties that Alaska law governs the issue of contract formation in this case because the parties are before the Court on diversity jurisdiction.[51] The formation of a valid contract under Alaska law requires “an offer encompassing all essential terms, unequivocal acceptance by the offeree, consideration, and an intent to be bound.”[52] Unlike traditional written contracts, in so-called online “clickwrap” agreements, a user is required to affirmatively click a box on a website “acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website.”[53]

         Alaska courts have not yet addressed the issue of clickwrap agreements; however, such agreements “have been routinely upheld by circuit and district courts.”[54] A number of courts within this Circuit have found that clickwrap agreements can comport with the traditional requirements of offer and acceptance.[55] In addressing whether a clickwrap contract is enforceable, courts typically look to whether the particular website in question provided sufficient notice to the user and access to the terms to which the user was expected to agree.[56]

         In the present case, Holland America has demonstrated-and Plaintiff does not dispute- that Plaintiff or her husband “had to accept the terms and conditions of the Cruise Contract before completing the online check-in process.”[57] Specifically, the website Plaintiff used here requires guests to “scroll down through the [terms and conditions] before they can check a box to indicate that they read the contract.”[58] Plaintiff must have also manually select a button stating that the “Terms & Conditions have been accepted on behalf of the selected guests” before completing their check-in.[59] Plaintiff was also required to print out certain documents needed to board the ship, which included a page confirming acceptance of the Cruise Contract, and conspicuously directing passengers' attention the section containing the forum selection clause.[60] Plaintiff does not dispute that she or her husband accepted the Cruise Contract as part of the check-in process, but only asserts that she has no recollection of the facts and circumstances of the booking.[61]

         Further, Plaintiff solely relies on Berkson v. Gogo LLC[62] to support her argument that she should not be bound by disadvantageous terms in the Cruise Contract. However, the Court finds that even applying the standard in Berkson further supports Defendant's argument that the Cruise Contract was validly accepted. In Berkson, the terms of an online agreement were not binding because they were contained in a hyperlink that users did not necessarily have to view before accepting.[63] In addition, the Berkson court emphasized that “Gogo did not have a practice of emailing or mailing the contents of the ‘terms of use' to its customers…Berkson never had a hardcopy in his possession to refer to” and “Gogo did not make an effort to draw Berkson's attention to its ‘terms of use.'”[64] Here, as discussed above, Holland America required users to scroll through the terms of the Cruise Contract fully before indicating acceptance.[65] Furthermore, Holland America required users to print out a confirmation of their acceptance to the Cruise Contract making special mention of the forum selection clause.[66] Under these facts, even the Berkson standard espoused by Plaintiff that “the offeror must show that a reasonable person in the position of the consumer would have known about what he was assenting to[, ]” is satisfied here.

         Therefore, the Court finds that Holland America provided Plaintiff ample notice and access to the terms of the Cruise Contract. Moreover, that Plaintiff agreed to the presented terms by affirmatively indicating her acceptance as a required part of the check-in process. Accordingly, Holland America's terms-including the forum selection clause-were unequivocally accepted by Plaintiff and are binding here.

         C. Whether the Forum Selection Provision is Fundamentally Unfair Such ...

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