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WALKER v. CARNIVAL CRUISE LINES

February 10, 2000

BERNARD WALKER & CHRISTINA ADAMS, PLAINTIFFS,
V.
CARNIVAL CRUISE LINES; CARNIVAL CORPORATION; UNIQUE TRAVEL AGENCY; ANDRE'S TRAVEL AGENCY, DEFENDANTS.



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 dismissing Carnival.

II. LEGAL STANDARD

A. MOTION TO RECONSIDER

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).

III. DISCUSSION

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 dismiss.

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 ...


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