1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRENDA L CAMPBELL, Case No. 20-cv-04955-HSG 8 Plaintiff, ORDER GRANTING MOTION TO

TRANSFER

9 v. Re: Dkt. No. 22 10 PRINCESS CRUISE LINES LTD., et al., 11 Defendants. 12 13 Pending before the Court is the motion to transfer this action to the Central District of 14 California, filed by Defendants Princess Cruise Lines, Ltd., Carnival Corporation, and Carnival 15 plc. Dkt. No. 22. The Court finds this matter appropriate for disposition without oral argument 16 and the matter is deemed submitted. See Civil L.R. 7-1(b). Having carefully considered the 17 parties’ arguments, and for the reasons detailed below, the Court GRANTS the motion to transfer. 18 I. BACKGROUND 19 Plaintiff Brenda Campbell filed this admiralty action on behalf of the Estate of Carl E. 20 Weidner on July 23, 2020, asserting several tort claims based on the death of Mr. Weidner 21 following his time aboard a cruise ship, the Grand Princess, owned and operated by Defendants. 22 See Dkt. No. 1 (“Compl.”). Plaintiff alleges that, despite knowledge of the risks of COVID-19, 23 Defendants issued an “Emergency Notification” to their passengers in advance of Mr. Weidner’s 24 voyage, indicating that the Grand Princess would be safe to board. See id. at ¶ 44, & Ex. A. 25 Plaintiff further alleges that Defendants learned of outbreaks of COVID-19 aboard several of their 26 other cruise ships and of at least one passenger with COVID-19 symptoms aboard the Grand 27 Princess, but failed to take proper precautions. See id. at ¶¶ 31–43, 46, 48–53, 69–73. Plaintiff 1 boarded the Grand Princess, where he contracted COVID-19. Id. at ¶¶ 44–46, 60, 62. Shortly 2 after disembarking, Mr. Weidner tested positive for COVID-19, and on March 26, 2020, he died 3 “because of infection related to the COVID-19 virus.” See id. at ¶¶ 63–68. 4 In support of its motion to transfer this action to the Central District of California, 5 Defendants cite to their booking records, which indicate that Mr. Weidner booked the cruise on 6 the Grand Princess on December 23, 2019. See Dkt. No. 22-1 at ¶¶ 3, 18. Defendants then sent 7 Mr. Weidner an email, which contained a “Booking Confirmation PDF.” See id. at ¶ 3. The email 8 and PDF prompted Mr. Weidner to complete mandatory additional booking information, including 9 reading and accepting the terms of the Passage Contract. Id. at ¶¶ 4–9, & Exs. A–B. The bottom 10 of the PDF reads: 11 IMPORTANT NOTICE: Upon booking the Cruise, each passenger 12 explicitly agrees to the terms of the Passage Contract (http://www.princess.com/legal/passage_contract/). Please read all 13 sections carefully as they affect the passenger’s legal rights. 14 15 Id. at Ex. B. Defendants state that Mr. Weidner accepted the terms of Defendants’ Passage 16 Contract on approximately January 3, 2020. See id. at ¶¶ 7–10, 18. As relevant to this motion, in 17 a section titled “Forum and Jurisdiction for Legal Action,” the Passage Contract states: 18 Claims for Injury, Illness or Death: All claims or disputes involving 19 Emotional Harm, bodily injury, illness to or death of any Guest whatsoever, including without limitation those arising out of or 20 relating to this Passage Contract or Your Cruise, shall be litigated in and before the United States District Courts for the Central District of 21 California in Los Angeles, or as to those lawsuits over which the Federal Courts of the United States lack subject matter jurisdiction, 22 before a court located in Los Angeles County, California, U.S.A., to the exclusion of the courts of any other country, state, city, 23 municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought 24 in such courts. 25 Id. at ¶ 15; see also Dkt. No. 22-4, Ex. C at 20. Based on this provision, Defendants contend that 26 this action should be transferred to the Central District of California. 27 II. LEGAL STANDARD 1 may transfer any civil action to any other district or division where it might have been 2 brought . . . .” 28 U.S.C. § 1404(a). The transfer statute exists “to prevent the waste of time, 3 energy and money and to protect litigants, witnesses and the public against unnecessary 4 inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quotation 5 omitted). Under § 1404(a), a case may be “transfer[red] to any district where venue is also proper 6 (i.e., ‘where [the case] might have been brought’) or to any other district to which the parties have 7 agreed by contract or stipulation.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of 8 Texas, 571 U.S. 49, 59–60 (2013). The Supreme Court has explained that “Section 1404(a) 9 therefore provides a mechanism for enforcement of forum-selection clauses that point to a 10 particular federal district.” Id. 11 III. DISCUSSION 12 The Supreme Court has stated that forum selection clauses in commercial cruise ticket 13 contracts are generally enforceable and “should be given controlling weight in all but the most 14 exceptional cases.” See Atl. Marine Const., 571 U.S. at 59–60; Carnival Cruise Lines, Inc. v. 15 Shute, 499 U.S. 585, 593–594 (1991). The Supreme Court has further explained that “[a] cruise 16 line has a special interest in limiting fora in which it potentially could be subject to suit . . . .” 17 Carnival, 499 U.S. at 593. First, “because a cruise ship typically carries passengers from many 18 locales, it is not unlikely that a mishap on a cruise could subject a cruise line to litigation in 19 several different fora.” Id. Additionally, the Court reasoned that forum selection clauses dispel 20 “any confusion about where suits arising from the contract must be brought and defended.” Id. at 21 593–94. Lastly, the Court noted that “passengers who purchase tickets containing a forum 22 clause . . . benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by 23 limiting the fora in which it may be sued.” Id. at 594. Accordingly, the Supreme Court has 24 cautioned that forum selection clauses should be upheld “unless enforcement is . . . unreasonable” 25 or violates principles of “fundamental fairness.” See, e.g., The Bremen v. Zapata Offshore Co., 26 407 U.S. 1, 10 (1972); Carnival, 499 U.S. at 595. Plaintiffs seeking to defeat enforcement of 27 forum selection clauses therefore bear a “heavy burden.” See A. Sun v. Advanced China 1 Here, Defendants argue that the forum selection clause in the Passage Contract is valid and 2 enforceable. See Dkt. No. 22 at 5–12. In response, Plaintiff argues that the Court should not 3 enforce the forum selection clause because (1) the forum selection clause is too vague; and 4 (2) Defendants engaged in fraud by minimizing the danger from COVID-19 that Mr. Weidner 5 faced in boarding the Grand Princess. See Dkt. No. 34 at 7–15. 6 A. Notice 7 As an initial matter, Plaintiff does not appear to contest that Mr. Weidner had notice of and 8 agreed to the Passenger Contract, including the forum selection clause. See Dkt. No. 34 at 7–15. 9 Rather, Plaintiff posits that the forum selection clause itself is vague, and therefore Plaintiff was 10 free to file in any federal district court, including in the Northern District of California. Id. at 7–9. 11 Plaintiff contends that the forum selection clause is permissive rather than mandatory because it 12 “does not contain language clearly requiring exclusive jurisdiction” in the Central District of 13 California. Id. at 7 (quotations omitted). More specifically, Plaintiff points out that the clause 14 states that all bodily injury claims “shall be litigated in and before the United States District 15 Courts for the Central District of California in Los Angeles,” and emphasizes that “United States 16 District Courts” is plural. Id. at 7–8 (emphasis added); see also Dkt. No. 22-4, Ex. C at 20. She 17 further notes that the forum selection clause does not explicitly preclude filing in other federal 18 district courts. See Dkt. No. 34 at 8–9. The Court is not persuaded, and finds that Plaintiff’s 19 argument borders on frivolous. 20 “A cruise line passage contract is a maritime contract governed by general federal 21 maritime law.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834 (9th Cir. 2002). Maritime 22 contracts “must be construed like any other contracts: by their terms and consistent with the intent 23 of the parties.” See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 31 (2004). Therefore, consistent 24 with general principles of contract interpretation, the plain language of a contract governs. See id. 25 at 31–32. And a contract is only ambiguous if “it is susceptible of two reasonable and practical 26 interpretations.” See Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 179 (2d 27 Cir. 2014) (emphasis omitted). 1 it is ambiguous. But when read in its entirety, as is required, the forum selection clause is clear. It 2 states that “[a]ll claims or disputes involving Emotional Harm, bodily injury, illness to or death of 3 any Guest whatsoever . . . shall be litigated in and before the United States District Courts for the 4 Central District of California in Los Angeles . . . .” See Dkt. No. 22-4, Ex. C at 20. To the extent 5 Plaintiff takes issue with “United States District Courts” being plural rather than singular, the 6 phrase is nevertheless modified by “for the Central District of California in Los Angeles.” Id. 7 Thus, if a passenger files any lawsuit about his or her illness or death on the cruise, it must be filed 8 in “the Central District of California in Los Angeles.” Id. 9 The remaining language in the forum selection clause merely clarifies that for lawsuits 10 over which the federal courts lack subject matter jurisdiction, such lawsuits “shall be litigated . . . 11 before a court located in Los Angeles County, California, U.S.A.” See id. Nothing in the clause 12 permits lawsuits to be brought in the Northern District of California, or any other federal district 13 court for that matter. To the extent there was any remaining doubt, the clause further states that 14 these fora are “to the exclusion of the courts of any other country, state, city, municipality, county 15 or locale.” Id. Plaintiff accepts that there is federal jurisdiction over this case, see Compl. at 16 ¶¶ 19–20, so absent some other basis to set aside the forum selection clause, this case should have 17 been filed in “the United States District Courts for the Central District of California in Los 18 Angeles.” Id. Plaintiff’s proffered interpretation to the contrary is simply unreasonable and not 19 supported by the plain language of the Passenger Contract. 20 B. Fraud 21 Plaintiff next argues that “[i]t would be unjust and unreasonable to enforce the Passage 22 Contract’s venue provision” because Defendants “lure[d] Mr. Weidner to board [the Grand 23 Princess] with the use of false promises of safety . . . .” See Dkt. No. 34 at 9. Plaintiff thus 24 suggests that any allegations of fraud, regardless of their connection to the forum selection clause, 25 render the enforcement of the forum selection clause inherently unfair. Id. at 10–11. As Plaintiff 26 notes, “the seminal case on maritime venue selection clauses,” M/S Bremen v. Zapata Off-Shore 27 Co., 407 U.S. 1, 15 (1972), provides that such a clause may be “invalid for such reasons as fraud 1 stating that it “does not mean that any time a dispute arising out of a transaction is based upon an 2 allegation of fraud . . . the clause is unenforceable. Rather, it means that an arbitration or forum- 3 selection clause in a contract is not enforceable if the inclusion of that clause in the contract was 4 the product of fraud or coercion.” See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, n.14 5 (1974) (citing Bremen, 407 U.S. at 13) (emphasis added); see also Carnival, 499 U.S. at 595 6 (holding that a forum selection clause should have been enforced because “there [wa]s no 7 evidence that petitioner obtained respondents’ accession to the forum clause by fraud or 8 overreaching”). In other words, the party seeking to invalidate a forum selection clause must 9 show that the forum selection clause itself was fraudulently included in the agreement, not that the 10 entire agreement was the product of fraud. Id.; see also Richards v. Lloyd’s of London, 135 F.3d 11 1289, 1297 (9th Cir. 1998) (“[S]imply alleging that one was duped into signing the contract is not 12 enough.”). 13 Plaintiff does not identify, either in the complaint or in her opposition brief, any fraud 14 related to the forum selection clause. Rather, the complaint alleges that Defendants failed to 15 disclose the risk of COVID-19 to Mr. Weidner in the February 12, 2020 “Emergency 16 Notification” and before he boarded the Grand Princess on February 21, 2020. See Compl. at 17 ¶¶ 103–104. According to Plaintiff, Defendants made the following false and misleading 18 statements: 19 • Defendants were “monitoring the situation with coronavirus that originated 20 from China”; 21 • Defendants’ “medical experts were working with global health authorities”; and 22 • “[A]ll guests will be subject to pre boarding health reporting and enhanced 23 screening at check in.” 24 See id. at ¶ 103. Yet all of these representations were made after Mr. Weidner agreed to the 25 Passenger Contract, and none pertain to the forum selection clause. 26 Plaintiff urges that Mr. Weidner did not agree to the Passenger Contract until he boarded 27 the Grand Princess on February 21, 2020. See Dkt. No. 34 at 11–12. She states that “[i]t is that 1 passage contract’s terms and that they have had sufficient time to read the terms and consider them 2 before boarding.” Id. at 12. This argument, however, is wholly unsupported by case law, and 3 Plaintiff cites no authority for such a novel approach to contract formation. As noted above, 4 passenger cruise contracts “must be construed like any other contracts.” See Norfolk, 543 U.S. at 5 31. And “clickwrap” agreements made through websites, where a user is presented with the terms 6 and conditions and must click on a button or box to indicate that he agrees before he may 7 continue, are considered valid and enforceable. See, e.g., Nguyen v. Barnes & Noble Inc., 763 8 F.3d 1171, 1175–77 (9th Cir. 2014). Here, Mr. Weidner not only agreed to the Passenger 9 Contract, but he had ample opportunity to review it. He accepted the terms of the Passage 10 Contract on January 3, 2020, over a month before boarding the Grand Princess. See Dkt. No. 22- 11 1 at ¶ 18; accord Oltman v. Holland Am. Line, Inc., 538 F.3d 1271, 1276–77 (9th Cir. 2008) 12 (finding passengers had sufficient time to review cruise contract when they received it at the time 13 of their departure and “were free to read [it] at their leisure”). 14 To the extent that Plaintiff suggests that, irrespective of allegations of fraud, the forum 15 selection clause still violates principles of fundamental fairness, see Dkt. No. 34 at 12–15, the 16 Court is not persuaded. The Supreme Court has recognized that “forum-selection clauses 17 contained in form passage contracts are subject to judicial scrutiny for fundamental fairness.” 18 Carnival, 499 U.S. at 595. Such signs of unfairness may include using a forum selection clause 19 “as a means of discouraging cruise passengers from pursuing legitimate claims” or other such 20 “bad-faith motive[s].” Id. In support of this argument, Plaintiff cites to Walker v. Carnival 21 Cruise, 107 F. Supp. 2d 1135 (N.D. Cal. 2000), in which the district court found that due to the 22 plaintiffs’ severe disabilities and limited financial means, enforcing the forum selection clause 23 would effectively deny the plaintiffs their day in court. See Walker, 107 F. Supp. 2d at 1140–41. 24 Yet critically, Plaintiff makes no effort to explain how requiring passengers to file lawsuits in the 25 Central District of California, rather than the Northern District of California, would discourage 26 passengers from pursuing their legitimate claims generally, or deny Plaintiff her day in court more 27 specifically. Indeed, Plaintiff in this case is a resident of Pennsylvania and her lead counsel is 1 District and Central District is thus negligible. 2 The Court does not in any way minimize the tragedy of Mr. Weidner’s death. But on the 3 record before it in this case, the Court cannot find any hardships that would make enforcement of 4 the forum selection clause unreasonable or unfair. The Court finds that Plaintiff has not met her 5 burden of establishing that this is one of the few “exceptional cases” where the forum selection 6 clause should not be enforced. See Atl. Marine Const., 571 U.S. at 59–60. 7 IV. CONCLUSION 8 Accordingly, the Court GRANTS Defendants’ motion to transfer. The Clerk is directed to 9 transfer this case to the United States District Court for the Central District of California and to 10 close the case. 11 IT IS SO ORDERED. 12 Date d : 1/8/2021 13 ______________________________________

HAYWOOD S. GILLIAM, JR.

14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27