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Portnov v. Carnival Corp.

United States District Court, N.D. California, San Jose Division

December 11, 2014

ABRAHAM PORTNOV, Plaintiff,
v.
CARNIVAL CORPORATION, Defendant

Portnov Abraham, Plaintiff, Pro se, West Vancouver, BC.

For Carnival Corporation, Defendant: Andre Michael Picciurro, LEAD ATTORNEY, Attorney at Law, San Diego, CA.

ORDER GRANTING MOTION TO DISMISS (Re: Docket No. 19)

PAUL S. GREWAL, United States Magistrate Judge.

While Plaintiff Abraham Portnov may have valid claims against Defendant Carnival Corporation, these claims are not properly before the court because of a binding agreement between the parties that requires disputes to be arbitrated in Florida. The case is DISMISSED for improper venue.

I.

Portnov purchased a cruise ticket from Defendant Carnival Corporation just over a month before his cruise was set to embark. Based on a dispute over whether Portnov needed a visa in order to board the cruise in Argentina, Portnov claims that Carnival discriminated against him by intentionally giving him the run-around.[1] In his complaint, Portnov alleges that this series of events caused him significant stress and lasting physical harm.[2] Carnival seeks to dismiss the complaint on the grounds that the court lacks subject matter jurisdiction, that the venue is improper, and for failure to state a claim.[3]

II.

This court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1331. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).

Under Fed.R.Civ.P. 12, " [e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (3) improper venue." [4] " [I]n the context of a Rule 12(b)(3) motion based upon a forum selection clause, the trial court must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party.[5]

III.

In response to Portnov's claims, Carnival brings a jurisdictional challenge under Rule 12(b)(3).[6] Specifically, Carnival asserts that this suit has been filed in the improper venue because of the existence of a binding arbitral clause requiring adjudication in Florida.[7] Portnov counters that the agreement--and thus the arbitration requirement--does not apply to him because he never boarded the cruise ship and therefore was never a " guest" as that term is defined in the contract.[8]

The primary question is whether the arbitration clause contained in the ticket contract is valid and enforceable. In relevant part, the ticket contract specifies arbitration in Miami-Dade County, Florida as the exclusive forum for resolution of " [a]ny and all disputes, claims, or controversies whatsoever, other than for personal injury, illness or death." [9] Carnival points out that this provision specifically contemplates claims of alleged discrimination--the precise claim that Portnov brings before this court. As a pure matter of contract interpretation, it is abundantly clear that Portnov's claim falls within the language of the arbitration contract. The only thing left for the court to determine is whether the clause is enforceable given the circumstances.

" [A]n agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum selection clause that posits not only the situs of the suit but also the procedure to be used in resolving the dispute." [10] Forum selection clauses are presumptively valid.[11] The party challenging enforcement of the forum selection clause must " clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or over-reaching." [12] In the narrower context of cruise ship contracts, reasonable forum selection clauses are considered prima facie valid even if not freely negotiated.[13]

The only argument Portnov makes to challenge the arbitration clause is that the contract does not apply to him as a guest because he had not yet boarded the ship.[14] But the contract itself defines " guest" as " all persons or entities booking or purchasing passage and/or traveling under [the] [c]ontract." [15] In ...


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