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
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).
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 plaintiffs
are seeking to vindicate important civil rights. We now turn our
attention to these two grounds.
B. PLAINTIFFS' PUBLIC POLICY ARGUMENTS
Plaintiffs contend that even if the forum selection clause
borne by their tickets is valid and enforceable, public policy
considerations militate in favor of this Court declining to
enforce this clause and retaining jurisdiction over this action.
Specifically, plaintiffs argue that their physical and financial
inability to travel to Florida, combined with the strong national
interest in promoting civil rights under the ADA, requires the
action to proceed in this forum. Defendants argue that
plaintiffs' physical and financial hardships are "irrelevant" and
that according to Carnival, Carnival's selection clause is not
"fundamentally unfair." (Def.Repl. at 4). We first consider
whether plaintiffs' public policy exception arguments are
meritorious in light of the strong judicial preference for
enforcing forum selection clauses.
1. Discretionary Non-Enforcement of Valid Forum Selection
The forum selection clause has undergone a complete about-face
in the eyes of
the law — from prima facie unenforceable to prima facie
valid. At earlier points in time, courts were loathe to enforce a
forum selection clause. This was based, in part, upon the fiction
that such private ordering improperly displaced the sovereign's
grant of jurisdiction. In 1972, the Supreme Court put an end to
this fiction noting that "[t]he argument that such clauses are
improper because they tend to `oust' a court of jurisdiction is
hardly more than a vestigial legal fiction." MS Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 12, 92 S.Ct. 1907, 1914, 32 L.Ed.2d
The Bremen Court went on to rule that a forum selection
clause should be enforced unless it could be shown that
"enforcement would be unreasonable and unjust, or that the clause
was invalid for such reasons as fraud or overreaching." Id. at
17, 92 S.Ct. 1907. Finding that the forum selection clause at
issue was the product of fraud or overreaching, the Court held
that the clause could not fairly be said to represent the intent
of the parties and thus, there could be no valid agreement for
the Court to enforce. But the Bremen Court also left room for
non-enforcement of forum selection clauses where the agreement
itself was legally valid but the consequences of enforcement
would be "unreasonable or unjust." Id. Although, "[t]he
[Bremen] Court did not define precisely the circumstances that
would make it unreasonable for a court to enforce a forum
clause," Carnival, 499 U.S. at 591, 111 S.Ct. 1522, it did
identify at least two relevant factors: 1) the interests of the
parties to the litigation, and 2) the public policy of the forum
where suit is brought. Bremen, 407 U.S. at 15, 92 S.Ct. 1907.
As to the first factor, the Court noted that a forum selection
clause might be overly burdensome, and thereby unreasonable for
one of the parties where "trial in the contractual forum" would
be "so gravely difficult and inconvenient that [plaintiff] will
for all practical purposes be deprived of his day in court."
Id. at 12, 92 S.Ct. 1907. See e.g., Pelleport Investors, Inc.
v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 (9th Cir.
1984) ("Absent some evidence submitted by the party opposing
enforcement of the clause to establish fraud, undue influence,
overweening bargaining power, or such serious inconvenience in
litigating in the selected forum so as to deprive that party of a
meaningful day in court, the provision should be respected as the
expressed intent of the parties.").
As to the second factor, the Court explained that it might be
unreasonable to enforce an otherwise valid forum selection clause
where enforcement would contravene a strong public policy of the
forum in which suit is brought. Bremen, 407 U.S. at 15, 92
S.Ct. at 1916. See e.g., Richards v. Lloyd's of London,
135 F.3d 1289, 1293 (9th Cir. 1998); Fireman's Fund Ins. Co. v. M.V.
DSR ATLANTIC, 131 F.3d 1336, 1338 (9th Cir. 1997). Pursuant to
either factor, the Court explained that those opposing
enforcement would bear a heavy burden of persuasion. Carnival,
499 U.S. at 595, 111 S.Ct. at 1528. Thus, since the Supreme Court
first established the judicial presumption favoring the
enforcement of forum selection clauses, it has tempered that
presumption in light of concerns for justice and fairness.
The Supreme Court's next major consideration of forum selection
clauses widened the discretion allowed district courts, in some
circumstances, to decline enforcement of an otherwise valid forum
selection clause. In Stewart Organization v. Ricoh, the Court
laid forth the proper analysis for a court considering a
28 U.S.C. § 1404(a) motion to transfer venue for the
convenience of the parties based upon an exclusive forum
selection clause. Stewart Organization, Inc. v. Ricoh Corp.,
487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The Court
Section 1404(a) directs a district court to take
account of factors other than those that bear solely
on the parties' private ordering of their affairs.
The district court also must weigh in the balance the
convenience of the witnesses and those
public-interest factors of systemic integrity and
fairness that, in addition to
private concerns, come under the heading of "the
interest of justice." It is conceivable in a
particular case, for example, that because of these
factors a district court acting under § 1404(a) would
refuse to transfer a case notwithstanding the
counterweight of a forum-selection clause. . . .