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Hebert v. Vantage Travel Service, Inc.

United States District Court, D. Massachusetts

March 5, 2018

RONALD HEBERT and AIME DENAULT on behalf of themselves and others similarly situated, Plaintiffs,
v.
VANTAGE TRAVEL SERVICE, INC. d/b/a VANTAGE DELUXE WORLD TRAVEL and VANTAGE ADVENTURES, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiffs Ronald Hebert and Aime Denault (“Plaintiffs”) have filed this lawsuit against Defendant Vantage Travel Service, Inc. (“Vantage”) alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of common law warranties, negligent misrepresentation and violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A, §§ 2 and 9. D. 1-1. Vantage has moved to dismiss, or in the alternative, for summary judgment, on the basis of a forum selection clause. D. 7. Plaintiffs have filed a cross-motion to strike portions of the declaration Vantage attached to its motion. D. 14 at 6-7. For the reasons stated below, the Court DENIES both motions.

         II. Standard of Review

         Courts in this Circuit generally analyze a motion to dismiss on the basis of a forum selection clause as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). Under Rule 12(b)(6), the Court will dismiss a pleading that fails to include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         When reviewing a motion pursuant to Fed.R.Civ.P. 12(b)(6), the Court “may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment.” Trans-Spec Truck Serv. Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed.R.Civ.P. 12(d). The Court may make exceptions for “documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)(quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). If the documents do not fall within this narrow class of exceptions, and the Court nevertheless considers them in deciding the motion, the parties “must be given a reasonable opportunity to present all the material that is pertinent to the motion, ” and the motion “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).

         Under Fed.R.Civ.P. 56, the Court will grant summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. A disputed fact is material if it has the potential to “affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation marks omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact, Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000), and the Court will “constru[e] the record in the light most favorable to the non-movant and resolv[e] all reasonable inferences in that party's favor, ” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2009).

         III. Factual Background

         Vantage is a Massachusetts corporation that operates and sells international travel tours to international customers, with the majority of its customer base in the United States. D. 10 ¶¶ 1-3; D. 18 ¶¶ 1-3. In 2015, Plaintiffs-Hebert, a Louisiana citizen, Denault, a Massachusetts citizen, and other Vantage customers they seek to represent-contracted with Vantage for a “5 Star Luxury” river cruise on the MS River Voyager that was set to begin in July 2016 and travel through Austria, Germany and Hungary. D. 1-1 ¶¶ 5-6, 16. Plaintiffs paid for their tickets. D. 1-1 ¶ 7.

         Two of Vantage's river tours are implicated in this case: the “Majestic Rivers of Europe” tour, scheduled to be a seventeen-day, sixteen-night tour on the MS River Voyager commencing in Bonn, Germany on July 8, 2016, and the “Highlights of the Danube” tour, an eleven-day, ten-night river tour scheduled to board the MS River Voyager in Nuremburg, Germany, on July 15, 2016. D. 10 ¶ 9; D. 18 ¶ 9. On or about July 14, 2016, however, the Plaintiffs were directed to disembark the MS River Voyager. D. 10 ¶ 13; D. 18 ¶ 13. Vantage alleges-and Plaintiffs dispute-that this disembarkation was due to a mechanical failure on the MS River Voyager at this time. D. 10 ¶¶ 13-14; D. 18 ¶¶ 13-14. After disembarking, Plaintiffs were transported by bus for eight days. D. 1-1 ¶ 7; D. 10 ¶¶ 15-16; D. 18 ¶¶ 15-16. Passengers were permitted to board the MS River Voyager again on July 22, 2016, in Budapest, Hungary, for the final night of the scheduled cruises. D. 10 ¶ 16; D. 18 ¶ 16. Following the trip, Vantage did not provide refunds to Plaintiffs. D. 1-1 ¶ 8; D. 18 ¶ 30.

         Vantage alleges that its general practice at the time was “to provide all passengers, prior to embarkation, the Passenger Ticket Contract which governed all claims or disputes arising out of the ownership and/or operation of riverboats and cruise ships used on tours.” D. 9 ¶ 5; D. 10 ¶ 4.

         Vantage has attached this Passenger Ticket Contract (“PTC”), to its motion, which contains the following provision in bold:

25. CHOICE OF FORUM. VENUE FOR ALL DISPUTES ARISING OUT OF THE OWNERSHIP AND/OR OPERATION OF THE SHIP SHALL LIE BEFORE THE COURTS OF ENGLAND AND WALES SITUATED IN LONDON ENGLAND TO THE EXCLUSION OF THE JURISDICTION OF THE COURTS OF ANY OTHER COUNTRY. FOR ALL OTHER DISPUTES ARISING UNDER OR IN RESPECT OF THIS TICKET CONTRACT, VENUE SHALL LIE BEFORE ANY COURT OF COMPETENT JURISDICTION LOCATED IN (A) BOSTON, SUFFOLK COUNTY, COMMONWEALTH OF MASSACHUSETTS, OR (B) MIAMI, DADE COUNTY, STATE OF FLORIDA, OR (C) RENO, WASHOE COUNTY, STATE OF NEVADA, TO THE EXLUSION OF THE COURTS OF ANY OTHER STATE OR COUNTRY, WITH THE CHOICE GIVEN TO THE PARTY INITIATING THE ACTION.

D. 9-1 at 7; see D. 10 ¶ 8; D. 18 ¶ 8. The Plaintiffs deny ever receiving the PTC, and provide two affidavits-Hebert's and Denault's-stating that Vantage did not provide the PTC to them at any time. D. 16 ...


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