The opinion of the court was delivered by: Henderson, District Judge.
ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION; DENYING
DEFENDANTS' MOTION TO DISMISS
This is a suit under the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 and California Civil Code section
54.1. Two disabled plaintiffs allege that defendants, Carnival
Corporation and Carnival Cruise Lines, collectively "Carnival",
failed to provide accessible accommodations on a cruise ship.
Presently before the Court is plaintiffs' motion to reconsider
that portion of our August 3, 1999, Order dismissing Carnival as
defendants pursuant to an exclusive forum selection clause on
plaintiffs' tickets. The Court heard oral arguments on September
27, 1999, and is thoroughly briefed on these matters. For the
reasons articulated below, the Court HEREBY GRANTS plaintiffs'
motion to reconsider our Order of dismissal and, having
reconsidered, DENIES defendants' motion to dismiss plaintiffs'
claims against Carnival.
I. FACTUAL & PROCEDURAL BACKGROUND
According to the complaint, plaintiff Christina Adams suffers
from "severe chronic-progressive Multiple Sclerosis." She relies
upon a wheelchair for her mobility and is bowel and bladder
incontinent. Plaintiff Bernard Walker is a quadriplegic with
limited muscle control who also suffers from incontinence. Both
have meager financial means due to their disabilities. Defendants
Carnival Corporation and Carnival Cruise Lines, collectively
"Carnival", are Panama corporations with their principal place of
business in Florida. Plaintiffs each took separate 3-4 day trips
on the Holiday, a cruise vessel owned and operated by Carnival,
which departs from Los Angeles. Walker made arrangements for his
honeymoon cruise with his new wife and family through Unique
Travel, prior to his departure on July 28, 1997. He received his
tickets through his neighbor, an employee with Unique Travel,
within a week of his departure. Unique Travel was informed that
Walker was disabled, used a wheelchair, and would require a
disabled accessible guest room, as well as disabled accessible
facilities, on the Holiday. Despite receiving assurances from
Unique Travel and direct assurances from Carnival that his room
and the ship were disabled
accessible, Walker discovered that neither his room nor the ship
were so equipped. After two years of saving, Mrs. Adams selected
the shortest and least expensive cruise available to celebrate a
previous wedding anniversary. (Decl. C. Adams at ¶ 10). Adams
booked her passage on the Holiday with Andre's Travel Agency.
She received her tickets 10 days before her departure on
September 12, 1997, and was assured by her travel agent that her
room and the ship were disabled accessible. Both plaintiffs
allege suffering indignities, injuries, and a wholly disapproving
voyage due to the ship's inaccessibility. Plaintiffs subsequently
filed this suit alleging that Carnival violated the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, and
California Civil Code section 54.1
On November 6, 1998, Carnival moved to dismiss plaintiffs'
claims pursuant to Federal Rule of Civil Procedure 12(b), in
light of a forum selection clause on each plaintiff's ticket
designating Florida as the exclusive forum for actions against
Carnival.*fn1 The Court construed defendants' motion to dismiss
as one for improper venue under F.R.C.P. 12(b)(3).*fn2 See
Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir.
1996) (motions to dismiss premised upon the enforcement of a
forum selection clause are properly treated as motions to dismiss
for improper venue). After reviewing the evidence, the Court
determined that the forum selection clause had been "reasonably
communicated" to plaintiffs and was therefore, enforceable. The
Court determined that plaintiffs had failed to meet the "heavy
burden of proof," required to set aside a forum selection clause
and on August 3, 1999, issued an Order dismissing, without
prejudice, plaintiffs' claims against Carnival.
Plaintiffs erroneously moved for a new trial under Federal
Rules of Civil Procedure 59(a) and 59(e), misinterpreting the
Court's August 3, 1999, Order dismissing plaintiffs' claims
against Carnival as a final judgment. Accordingly, on August 24,
1999, this Court vacated plaintiffs' motions for a new trial.
Plaintiffs filed an expedited motion for leave to file a motion
for reconsideration of the Court's August 24th Order. In the
interest of judicial economy, this Court amended the same Order,
sua sponte, treating plaintiffs' motion for a new trial as a
motion for reconsideration of the Court's August 3, 1999, Order
Under Federal Rule of Civil Procedure 54(b), this Court has
discretion to revise its orders prior to entry of final judgment:
"[A]ny order which . . . adjudicates fewer than all the claims or
rights or liabilities of fewer than all the parties . . . is
subject to revision at any time before the entry of [final]
judgment." FED.R.CIV.P. 54(b). However, Rule 54(b) does not
provide a mechanism by which parties may seek reconsideration.
Local Rule 7-9(A), of the Northern District of California fills
this procedural gap but requires that a party first obtain leave
of the district court before filing a motion to reconsider. See
CIVIL L.R. 7-9(A).*fn3
To prevail upon a motion to reconsider, a party must set forth
facts or law of a strongly convincing nature to induce the Court
to reverse its prior decision. See e.g., Kern-Tulare Water Dist.
v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D.Cal. 1986),
aff'd in part and rev'd in part on other grounds, 828 F.2d 514
(9th Cir. 1987), cert. den'd, 486 U.S. 1015, 108 S.Ct. 1752,
100 L.Ed.2d 214 (1988). The Local Rules of the Northern District
of California set forth three circumstances under which a Motion
to Reconsider may be granted: 1) the existence of "a material
difference in fact or law" from that presented to the court at
the time of the hearing that could not have been reasonably known
to the party seeking reconsideration; 2) the emergence of new
material facts or a change of law occurring after the order; or
3) "[a] manifest failure by the court to consider material facts"
presented to the court at the hearing. Rule 7-9(b)(1)-(3). See
generally, CALIFORNIA PRACTICE GUIDE FEDERAL CIVIL PROCEDURE
BEFORE TRIAL. however, "[n]o motion . . . for reconsideration
shall repeat any oral or written argument made by the applying
party in support of or in opposition to the interlocutory order
which the party now seeks to have reconsidered." CIVIL L.R.
7-9(c). Finally, a motion for reconsideration is to be decided
within the sound discretion of the district court and such
decision is reviewed for an abuse of discretion. See CIVIL L.R.
7-9 and 7-10; Hinton v. Pacific, 5 F.3d 391 (9th Cir. 1993)
(motion for reconsideration).
A. RECONSIDERATION IS WARRANTED
For these reasons, the Court HEREBY GRANTS plaintiffs' motion
to reconsider its decision to enforce the forum selection clause
and now will reconsider the merits of Carnival's motion to
In the Court's Order dated August 3, 1999, this Court performed
a detailed analysis of the forum selection clause borne by
plaintiffs' tickets in light of Carnival Cruise Lines, Inc. v.
Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)
(hereafter "Carnival"). The Court concluded that plaintiffs'
other arguments notwithstanding, the forum selection clause had
been "reasonably communicated" to both Walker and Adams and was
therefore valid and enforceable. That analysis remains unchanged.
Accordingly, that portion of our previous order is reaffirmed and
will not be reported here.
We do conclude, however, that the forum selection clause should
not be enforced on other grounds that the Court failed to fully
or adequately consider. Those grounds are: first, the fact that
plaintiffs' physical disabilities and economic constraints are so
severe that, in combination, they would preclude plaintiffs from
having their day in court and, second, the fact that ...