the forum selection clause unreasonable and declined to enforce it
against the plaintiffs.
Carnival's cancellation policy is printed as clause 26 of the passenger
ticket. It provides that for 3 to 4 day cruises, cancellations anywhere
from 29 to 4 days before departure require a $100 charge. Cancellations
made within 3 days of departure result in forfeiture of the cruise fare.
*fn1 Here, Adams received her ticket ten days before departure, so
cancellation would only have resulted in a $100 charge per passenger.
Although Walker claims he received his ticket less than a week before
departure, he offers no evidence to establish that he got his ticket less
than 4 days from departure. Moreover, he admits that before he received
the ticket, it was in the possession of his friend who worked for Unique
Travel. Thus if Walker had taken the opportunity to read the ticket and
objected to the forum selection clause, the $100 cancellation charge
would have applied. This relatively minor charge is not an unreasonable
infringement on either plaintiffs' option to reject the ticket contract.
Corna is therefore distinguishable. See also Hicks, 1995 A.M.C. at 287-88
(distinguishing and declining to follow Corna where passenger received
ticket from travel agent the night before departing and would have had to
forfeit her entire fare in order to reject the terms of a forum selection
clause; holding that nothing prevented passenger "from obtaining her
tickets or information concerning its terms at an earlier date").
Finally, plaintiff presents a rather tortured argument that a recent
Supreme Court decision regarding the enforceability of an arbitration
clause in a collective bargaining agreement, Wright v. Universal Maritime
Service Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998),
applies here to, preclude "waiver" of plaintiffs' right to sue in their
home forum. In Wright, the Supreme Court considered whether a general
arbitration clause could be invoked to preclude a union member from
filing in federal court for violations of the ADA. The Court reasoned
that the statutorily created "right to a federal judicial forum is of
sufficient importance to be protected against less-than-explicit union
waiver in a CBA." 525 U.S. ___, 119 S.Ct. at 396. In other words, in
order to waive rights to a judicial forum for federal claims of
employment discrimination, the CBA must be "clear and unmistakable." Id.
Plaintiff cites Wright for the proposition that the ADA represents a
strong public policy and that there is no clear and unmistakable "waiver
of rights to sue in California federal courts for violation of the
anti-discrimination provisions of Title III of the ADA where there is no
mention in the Carnival Cruise Lines ticket of such a waiver. . . ."
plf's Opp. Mem. at 10-11.
The forum selection clause is, of course, just such a waiver. Wright,
in any event, is completely inapposite. First, it involves a CBA and the
question of arbitrability, not an individual passenger contract. Indeed,
the Supreme Court specifically distinguished the question before it from
"an individual's wavier of his own rights" — a situation in which
"the `clear and unmistakable' standard [is] not applicable." 119 S.Ct. at
397. Second, an exclusive arbitration clause is radically different from
a forum selection clause. If an arbitration clause is applied to an ADA
claim, the plaintiff is deprived of a judicial forum; the forum provision
here simply requires that any suit against Carnival be brought in a
Florida court. Finally, plaintiff offers nothing to show that Wright has
any application outside the union/CBA/arbitration clause context.
Certainly, there is nothing in the opinion to suggest a broader reach.
B. Travel Agents' 12(b)(6) Motion
1. Legal Standard
Dismissal is appropriate under Rule 12(b)(6) when a plaintiffs'
fail to state a claim upon which relief can be granted. FED. R. Civ. P.
12(b)(6). The Court must accept as true the factual allegations of the
complaint and indulge all reasonable inferences to be drawn from them,
construing the complaint in the light most favorable to the plaintiff.
Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.
1993); NL Indus., Inc. v. Kaplan., 792 F.2d 896, 898 (9th Cir. 1986).
Unless the Court converts the Rule 12(b)(6) motion into a summary
judgment motion, the court may not consider material outside of the
complaint. Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th
Cir. 1995); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994).
Documents attached to the complaint and incorporated therein by
reference, however, are treated as part of the complaint for purposes of
Rule 12(b)(6). Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484
(9th Cir. 1995). In addition, "documents whose contents are alleged in a
complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in ruling on a Rule
12(b)(6) motion to dismiss" without converting it into one for summary
judgment. Branch., 14 F.3d at 454; see also Parrino v. FHP, Inc.,
146 F.3d 699, 705-06 (9th Cir. 1998).
The Court must construe the complaint liberally, and dismissal should
not be granted unless "it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.
1998); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); 5A WRIGHT
& MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990).
Dismissal without leave to amend is appropriate only where a court is
satisfied that the deficiencies of the complaint could not possibly be
cured by amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996);
Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Rule 12(b)(6)
dismissals are reviewed de novo by the appellate court. Stone v.
Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995).
The Travel Agents move to dismiss on the grounds that the complaint
fails to state a claim against them under the ADA. First, the Travel
Agents argue that they are not liable for Carnival's compliance vel non
with the ADA. Since the prohibition on discrimination in access to places
of public accommodations applies only to owners, lessees, lessors, and
operators, 42 U.S.C. § 12182, the Travel Agents claim that they fall
outside the scope of the ADA. The Court agrees. Insofar as plaintiffs
would hold the Travel Agents liable for the condition of the Holiday,
they have obviously failed to state a claim. The Travel Agents are bereft
of control over Carnival's fleet — they do not own, lease or
operate Carnival's ships — and therefore cannot be held responsible
for the ships' accessibility to disabled persons.
However, plaintiffs contend that the Travel Agents are independently
liable under the ADA for failing to adequately research, and for
misrepresenting, the disabled accessible condition of the Holiday.
Essentially, plaintiffs assert that the service provided by the Travel
Agents, quite apart from the cruise provided by Carnival, violates the
ADA to the degree that disabled travelers are unable to obtain accurate
information about the accessibility of their means of transport. The
complaint alleges that Unique Travel was informed that Walker was "a
disabled person who used a wheelchair and would require a disabled
accessible guest room and disabled accessible facilities on the Boat in
order to be able to use and enjoy the Boat's facilities." Compl. ¶
10. Carnival's brochure identified his guest room as "modified for
disabled," and Walker "called Carnival Cruise Lines directly during the
week prior to his trip and was again assured that the Boat and his guest
room were disabled accessible, including a `roll in' shower in his guest
The complaint further alleges that Walker "relied, on these
representations and would not have purchased tickets for this cruise had
he known that the `Holiday' boat, in fact, was not accessible. Compl.
¶ 11 (emphasis original). Adams was similarly "assured by Defendant
Andre's Travel Agency . . . that her needs as a disabled wheelchair user
would' be accommodated, on the boat," and her assigned room was also
listed in the Carnival brochure as "`modified for disabled.'" Compl.
¶ 13. Based on these facts, the complaint asserts that defendants
"misrepresented" that the guest rooms and other facilities were disabled
accessible. Compl. ¶ 16, 19.
The ADA provides:
No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or
leases to), or operates a place of public
42 U.S.C. § 12182 (a) (emphasis added). The statute further clarifies
that "discrimination" under section 12182(a) includes:
(ii) a failure to make reasonable modifications in
policies, practices, or procedures, when such
modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or
accommodations to individuals with disabilities,
unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of
such goods, services, facilities, privileges,
advantages, or accommodations;
(iii) a failure to take such steps as may be necessary
to ensure that no individual with a disability is
excluded, denied services, segregated or otherwise
treated differently than other individuals because of
the absence of auxiliary aids and services, unless the
entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service,
facility, privilege, advantage, or accommodation being
offered or would result in an undue burden. . . .
42 U.S.C. § 12182 (b)(2)(A). Thus the ADA places an affirmative duty
on owners and operators of places of public accommodation to make
reasonable accommodations and to take steps to ensure that disabled
persons have equal access to the goods and services such places offer.