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Michael Burns, Independent Administrator of the Estate of Elizabeth v. Wilderness Ventures

August 30, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Michael Burns ("Plaintiff"), administrator of the estate of his minor daughter, Elizabeth Burns ("Elizabeth"), sued Defendant Wilderness Ventures, Inc. for wrongful death and survival in connection with a wilderness trip conducted by the Defendant. Defendant moves to dismiss under Rule 12(b)(3) for improper venue because Elizabeth and her mother, Sally Burns, signed two contracts before the trip commenced that both contained a forum selection clause requiring all legal proceedings relating to or arising out of the wilderness program be adjudicated in the sole jurisdiction and venue Teton County, Wyoming. Defendant also moves for dismissal under Rule 12(b)(2) for lack of pursuant jurisdiction. For the following reasons, the Court grants Defendant's Motion to Dismiss for improper venue under Rule 12(b)(3), and therefore need not reach issues of personal jurisdiction under Rule 12(b)(2).


For purposes of this motion to dismiss, the Court accepts the following well-pleaded allegations as true. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Defendant is a corporation incorporated in Wyoming. (Cmplt. ¶ 1). Elizabeth was a resident of Illinois. (Cmplt. ¶3). Plaintiff is the administrator of Elizabeth's estate. (Cmplt. ¶31).

On June 22, 2011, Elizabeth's mother, Sally Burns, contracted on behalf of Elizabeth with Defendant for a position on a trip to the Teton national forest. (Cmplt. ¶5-7). The trip to Teton National forest included thirteen campers (of which Elizabeth was one) and two counselors. (Cmplt. ¶6). The counselors for Elizabeth's trip had completed Defendant's counselor training program. (Cmplt. ¶12). As part of the training, the counselors learned that in order to comply with regulations for bear protection, food and other smelly items had to be suspended from a food pole or tree ten feet above the ground and four feet away from the pole or the tree. (Cmplt. ¶14-15). Defendant knew, or should have known, that the Teton national forest had lodge pole pine trees and an infestation of pine beetle, such that many of the lodge pole pine trees had been dead in excess of five years. (Cmplt. ¶9).

Due to weather conditions on the trip, the counselors leading Elizabeth's trip used a new campsite at the direction of Defendant. (Cmplt. ¶13). On July 18, 2011, at the new campsite, about 100 pounds of food and other smelly items had been hoisted by ropes to ten feet above the ground in a tree at the site and suspended facing the cook site. (Complt. ¶21). Elizabeth was seated on a downed tree about 66 feet from the base of the selected tree. (Cmplt. ¶22). While hoisting the second 100 pounds of food onto the tree, an audible crack occurred but the counselors did not instruct the campers hoisting the food to stop or instruct anyone to clear the area. (Complt. ¶23-24). While the campers continued to hoist the food bags, a second crack occurred and the tree was pulled down in the direction that the bags had been placed. (Cmplt. ¶24). The pulled tree struck Elizabeth in the head and torso. (Cmplt. ¶25). Elizabeth's injuries caused her death that day. (Cmplt. ¶28).


Federal Rule of Civil Procedure 12(b)(3) provides for the dismissal of an action for improper venue based on the existence of a forum selection clause. See Automobile Mechs. Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007); Continental Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 (7th Cir. 2003). In considering a motion to dismiss for improper venue, courts may examine facts outside the complaint. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-10 (7th Cir. 2011) (noting it appropriate to consider the underlying agreement containing the forum selection clause in question).

A forum selection clause that is part of an enforceable contract is presumed valid. Hugel v. Corp. of Lloyd's, 999 F.2d 206, 210 (7th Cir. 1993); see also AGA Shareholders, LLC v. CSK Auto, Inc., 467 F. Supp. 2d 834, 843 (N.D. Ill. 2006). Where the forum selection clause specifies a specific venue with "mandatory or obligatory language, the clause will be enforced." Paper Exp., Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992). Plaintiffs seeking to overcome a forum selection clause on the grounds of inconvenience have the burden to make the showing that a forum selection clause should be invalidated. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522 (1991), citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17, 92 S. Ct. 1907 (1972).


Defendant seeks to invoke the forum selection clauses contained in two contracts signed by Elizabeth and her mother. Defendant attached copies of the executed contracts to its Motion to Dismiss as Exhibits B and C. The two documents (the "Contracts") are an "Acknowledgment of Risks and Assumption of Responsibility Agreement" and a "Liability Release and Agreement to Indemnify." Each of the Contracts contains the following language:

We understand and agree that the laws of the State of Wyoming govern this document and all aspects of our relationship with Wilderness Ventures, contractual or otherwise; and that the State of Wyoming, County of Teton will be the sole jurisdiction and venue for any legal proceeding relating to or arising out of this program.

Each of the Contracts also states that the parent or guardian signatory to the document signs "on behalf of Participant, myself, and my spouse if said spouse is also a parent or guardian of the Participant (my spouse and I collectively and individually referred to from this point as Parent)." One of the documents is a single page in length, the other two pages in length. While these documents were not attached to the Complaint, Plaintiff does not contest that the attached Contracts are accurate copies.

As an initial matter, this Court would normally apply the law chosen in the underlying Contracts, in this case the law of Wyoming, to the question of the validity of the forum-selection clause. See Faulkenberg, 637 F.3d at 809 ("Generally, the law applicable to a contract is that which the parties intended, assuming such an intent. When that intent is expressed, it should be followed.") (quoting Hofeld v. Nationwide Life Ins. Co., 322 N.E.2d 454, 458 (Ill. 1975)). But neither side has mentioned Wyoming law. Both parties cite to federal law of this Circuit together with Illinois law. Moreover, neither side has identified, nor has the Court located, any differences between Wyoming law and Illinois law on forum selection principles or the issues raised by the parties. Therefore, this Court applies federal and Illinois law to determine whether Plaintiff ...

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