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FOR OFFICIAL PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) BLUEWATER CONSTRUCTION, INC. ) CASE NO. ST-18-CV-434 ) 2019 V.I. SUPER. 70 Plaintiff, ) ) v. ) ) CBI ACQUISITIONS, LLC d/b/a CANEEL BAY ) RESORT and BAY AREA BUILDING ) SOLUTIONS, INC. ) ) Defendants. ) ) Micheal L. Sheesley, Esq. Michael L. Sheesley, P.C. St. Thomas, U.S.V.1. Attorney for Plaintiff, Gregory H. Hodges Dudley, Topper, and Feuerzeig, LLP St. Thomas, U.S.V.I Attorney for Defendants. DUNSTON, Presiding Judge MEMORANDUM OPINION ql. Before the Court is Defendants’ Virgin Islands Rule of Civil Procedure 12(b)(3) Motion to Dismiss. Because this action arises out of a contract which includes an enforceable forum selection clause, Defendant’s motion to dismiss is granted. Accordingly, Plaintiff's action is dismissed without prejudice and may be refiled in the venue specified by the parties’ forum selection clause. Factual History Q. CBI Acquisitions, LLC, as owner and operator of Caneel Bay Resort, engaged Bay Area Building Solutions, Inc. [hereafter, BABS] to serve as a general contractor for the demolition and rebuilding of 18 Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutians, Inc. Case No. ST-18-CV-434 V.L. Super. 70 Memorandum Opinion, May 20, 2019 hotel rooms at Caneel Bay Resort on St. John, U.S. Virgin Islands.' On July 10, 2017, CBI and BABS entered a construction subcontract with Bluewater Construction, Inc., under which Bluewater agreed to “furnish and install all materials, labor, equipment, tools, insurance, and supervision for [the] complete Demolition [and subsequent construction of] Concrete, Rough and Finish[ed] Carpentry, Framing/Drywall, Exterior Trex Decks, Patio Roofs, Door/Shower Glass Installation and Room Accessories Installation’ for the hotel rooms. In consideration for the construction services and materials, BABS agreed to “pay, or cause to be paid” amounts due under the agreement’s terms and conditions.’ Executing the contract were Jeremy Henkel and John Vrabec. Henkel, Bluewater’s President, signed on behalf of Bluewater. Vrabec, BABS’ Executive Vice President, signed on behalf of BABS and simultaneously on behalf of CBI as the latter’s “authorized representative,” evidenced by the cover of the Subcontract.* Page Five of the Subcontract, which was drafted by BABS, included the following combined choice of law and forum selection clauses: d. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida and the federal law of the United States of America. Jurisdiction and venue is hereby expressly reserved for Hillsborough County, Florida [sic]. RB. In July 2017, Bluewater began performing under the Subcontract. On August 23, 2017, Bluewater submitted its first “Subcontractor’s Request for Payment and Partial Release of Lien,” through which Bluewater requested payment for $93,388.55 from BABS.*® On October 10, 2017, Bluewater submitted its second “Subcontractor’s Request for Payment and Partial Release of Lien” requesting payment for $121,275.65 (a figure which included the $93,388.55 balance outstanding from August 2017).’ An invoice, also sent from Bluewater to BABS on October 10, 2017, indicates that BABS owed Bluewater a total of $217,416.55. To date, no party to this action has shown that BABS paid any compensation to Bluewater. On August 28, 2018, Bluewater filed a Complaint with this Court asserting one breach of contract claim against BABS and one breach of contract claim against CBI. In their first response to the Complaint, BABS and CBI (represented by the same counsel) filed a Disclosure ' Compl. ff 7 and 10. 2 Id. 10. 3 1d.4 12. 4 Id. Exh. 1. 5 Id. Exh. 1. 6 Jd. Exb. 2. 7 Id. Exh. 3. 8 Jd. Exh. 4. 9 Id. 99 24-41. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 Statement'® and the present V.I. R. Civ. P. 12(b)(3) Motion to Dismiss"! on October 11, 2018 based on the forum selection clause highlighted above.” Analysis I. Testing Forum Selection Clauses in the Virgin Islands. 74. The Virgin Islands Supreme Court has not yet had an opportunity to establish the legal test used to assess the enforceability of a forum selection clause when it forms the basis of a party’s motion to dismiss a lawsuit pending in the Territory. However, this Court has addressed forum selection clauses, their interpretation, and their enforceability. Precedent from this Court and other Judges on this Court has developed the following analysis for determining whether to dismiss a claim based on a forum selection clause:!? The first inquiry is whether the clause was reasonably communicated to the party resisting enforcement. The second step requires classification of the clause as mandatory or permissive. A mandatory forum selection clause contains clear language indicating that jurisdiction is appropriate only in a designated forum. A permissive forum selection clause, often described as a consent to jurisdiction clause, authorizes litigation in a designated forum, but does not prohibit litigation elsewhere. The third inquiry asks whether the claims and parties involved in the suit are subject to the forum selection clause.'* Because “{a] forum selection clause gives rise to contractual rights and obligations”! the Court “applies principles of contractual interpretation”'® when determining the first three prongs outlined above. After assessing these three prongs, the Court engages in a fourth analytically distinct inquiry. This fourth prong of the analysis tests the enforceability of the forum selection clause. “If the forum selection clause was communicated to the party resisting enforcement, is mandatory, and covers the claims and parties in the dispute, it is ‘presumptively enforceable.””” Yet, the presumption is '0 Defs.’ Disclosure Statement. "! Defs.’ Mot. Dismiss. 12 On November 26, 2018, Bluewater provided its Opposition to BABS’ and CBI’s Motion to Dismiss, to which BABS and CBI replied on December 17, 2018. Pl.’s Opp. to Def.’s Mot. Dismiss; Defs.’ Reply to Pl.’s Opp. to Def.’s Mot. Dismiss. '3 Philo v. Armstrong Service, Inc., Case No. ST-16-CV-685, 2017 WL 2294638, at *1 (V.I. Super. Ct. May 22, 1017). 4 Philo, 2017 WL at *1 (citations, quotation marks, and brackets omitted), 'S Beedle v. Kilgus, Case No. SX-17-CV-169, 2017 WL 5665413, at *1 (V.I. Super. Ct. Nov. 21, 2017). 16 Td. '7 Philo, 2017 WL at *2. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 rebuttable.'® Consequently, under the fourth prong, the Court must ultimately determine “whether the resisting party has rebutted the presumption of enforceability by showing (1) that the clause is the result of fraud or overreaching; (2) that enforcement would violate strong public policy of the forum; or (3) that enforcement would, in the particular circumstances of the case, result in jurisdiction so seriously inconvenient as to be unreasonable.’””!? II. Banks” Analysis—Which law governs combined choice of law and forum selection clauses? 15. Before the Court addresses Bluewater’s arguments against dismissal of its action based on the parties’ forum selection clause, it reaches “a conceptually prior issue.”?! When a contract contains both a choice of law clause and a forum selection clause, does Virgin Islands law, as the governing law of the forum, or the law of the jurisdiction specified in the choice of law clause, determine the effect of a forum selection clause in an action initially filed in the Virgin Islands? In answering this question, the Court notes the distinction between the first three prongs of the Virgin Islands forum selection clause test, which turn on contractual interpretation of the forum selection clause, and the fourth prong, which turns on the enforceability of the clause as assessed under the mode of analysis enunciated in M/S Bremen v. Zapata Off-Shore Co.” and its progeny. This choice of law issue is one of first impression for the Court and is currently evolving in other jurisdictions, as is evidenced in recent law review articles.”> Accordingly, a Banks analysis follows to determine the best rule for the Virgin Islands when determining which jurisdiction’s jurisprudence governs the interpretation and the enforceability of forum selection clauses.” 18 See Philo 2017 WL at *2 and Beedle, 2017 WL at *2. !? Philo, 2017 WL at *2. 20 Banks v. International Rental and Leasing Corp., 55 V1. 967 (V.1. 2011). *) Martinez v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 2014). ?2 407 U.S. 1 (1972). 3 See Symeon C. Symeonides, What Law Governs Forum Selection Clauses?, 78 La. L. REV. 1119 (2018); Keven M. Clermont, Symposium: Forum Selection After Atlantic Marine: Governing Law on Forum Selection Agreement, 66 HASTINGS L.J. 643 (April 2015); Kevin W. Bufford, Student Note, Threshold or Procedural Issues: The Order of Interpretation Required by Contractual Choice of Law of the Forum Where the Suit is Commenced, 40 AM. J. TRIAL ADVOCACY 131 (Summer 2016); J. Zachary Courson, Survey, Yavuz v. 61 MM, Ltd., A New Analysis of Forum Selection Arguments, 85 DENV. U.L. REV. 597 (2008); Jason Webb Yackee, Choice of Law Considerations in the Validity and Enforcement of International Forum Selection Agreements: Whose Law Applies?, 9 UCLA J. INT’L L. & FOREIGN AFF. 43 (Spring/Summer 2004). ?* When determining whether a Banks analysis is appropriate, the Court also notes that the U.S. Supreme Court, in its Bremen holding, decided that a public policy favoring the reduction of contractual uncertainty in trade and commerce should overrule the traditional rule of litigation and forum non conveniens whereby “the plaintiff's choice of forum should rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). In fact, the weight of this relatively new public policy favoring contractual certainty and, by extension, favoring the enforcement of forum selection clauses, led the U.S. Supreme Court to push aside the enforcement of venue statutes and to modify the forum non conveniens doctrine. Under the Court’s modification, the forum non conveniens “doctrine’s usual tilt in favor of the plaintiff's choice of forum gives way to a presumption in favor of the contractually selected forum.” Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Salutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 A. No Virgin Islands court has addressed this issue since the Virgin Islands Supreme Court assumed its jurisdiction. 4/6. Since the Virgin Islands Supreme Court assumed its jurisdiction, Virgin Islands courts have not addressed the precise question of what jurisdiction’s law governs the interpretation and enforceability of a combined forum selection and choice of law clause. However, the Third Circuit reviewed and then reversed a Virgin Islands District Court decision on this subject in General Engineering Corp. v. Martin Marietta Alumina, Inc.** At issue was the District Court’s decision to grant Martin Marietta’s motion for summary judgment which argued that the Court lacked jurisdiction over the action due to the forum selection clause included in the parties’ construction contract,”° which specified Maryland as the forum in which litigation would occur. At trial, the District Court decided against enforcing the forum selection clause because (1) federal, and not state, law, namely the rule enunciated in M/S Bremen v. Zapata Off- Shore Co.,”" applied when no conflict existed between the parties’ choices of law for the contract’s construction; and because (2) when applying Bremen, the District Court found the forum selection clause to be unreasonable due to (a) a need to visit the construction site to demonstrate overcrowding and a lack of coordination and (b) Maryland being an inconvenient forum for Virgin Islands-based employees intended to serve as witnesses.”* q7. Upon appeal, the Third Circuit reversed. It held that (1) “only rarely will federal common law displace state law in a suit between private parties; (2) Virgin Islands law should have been invoked to determine what jurisdiction’s law should have governed the parties’ contractual rights and duties; (3) under 1 V.I.C. § 4, the Restatement (Second) of Conflict of Laws § 187 established that the law chosen by the parties is to govern their contractual rights and duties and, therefore, Maryland law should have governed the District Court’s contractual interpretation; (4) in the absence of a Maryland-specific forum selection clause enforceability rule, the District Court’s decision to apply Bremen was correct; but (5) when applying Bremen, the District Court erred in finding the forum selection clause would be unreasonable, and concomitantly unenforceable, based on the facts presented.” Martinez, 740 F.3d at 218. When deeming forum selection clauses as “indispensable element{s] in international trade, commerce, and contracting,” the Court overrode long-held “doctrine . . . consistent with . . . courts’ longstanding ‘inherent power’ to generate rules promoting uniformity in the administration of legal proceedings.’” Id, at 218 and 221. Because the U.S. Supreme Court’s determination turned on public policy which overruled longstanding statutes addressing personal jurisdiction and venue, a Banks analysis is in order. *5 783 F.2d 352 (3d Cir. 1986). *6 Id. at 355. *7 407 U.S. 1 (1972). *8 General Engineering Corp., 783 F.2d at 355, 259. * Id, at 356, 358-59. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 B. A survey of jurisdictions shows three approaches present themselves as options for the Court. 78. Under Banks and Government of the Virgin Islands v. Connor, the Court surveys jurisdictions across the United States to ascertain if a majority rule or approach exists and, if so, how that rule is enunciated and applied. A review of federal and state courts’ opinions reveals that courts tend to use one of three approaches when assessing forum selection clause interpretation and forum selection clause enforceability: (1) the application of the local court’s jurisprudence, /ex loci, to the interpretation and enforcement of forum selection clauses, (2) the application of the parties’ contractually-agreed-to law to the interpretation and enforcement of forum selection clauses, and (3) the application of the parties’ contractually-agreed-to jurisprudence to the interpretation of forum selection clauses and the application of local law to the enforcement of forum selection clauses. The Court notes that secondary sources and case law reveal that, in certain factual situations, this tripartite split could be “more superficial than real” in that a court’s decision may be driven by differing problems, issues, and legal arguments raised by the parties."' But, the mandate of Banks and Connor is clear: determine the majority rule governing the issue presented and then assess whether it or an alternative provides the soundest rule for the Virgin Islands. 99. The first approach is the application of local law to questions and issues addressing interpretation of and the enforceability of forum selection clauses. Commentators have noted that “cases that follow this option are too numerous to count, whether in state or federal courts .. . . [and] are even more numerous if one were to include cases that do not even consider the choice of law question and thus ‘reflexively’ apply forum fi.e., local] law.””? An exemplar case is Florida’s Fendi S.r.l. v. Condotti Shops, Inc.? There, a Florida Court of Appeals reversed a Miami trial court’s decision to construe a forum selection clause under the law specified in a contract’s choice of law clause, namely Italian law. In doing so, the Fendi court deemed the issue of forum selection clause enforceability as procedural. As a result, the Court of Appeals applied local, forum law to the interpretation and enforcement of the forum selection clause by relying on Florida Supreme Court precedent, Manrique v. Fabbri. Ultimately, the Fendi court held that “it is clear the [Florida Supreme] Court was devising and applying Florida procedural rules to govern the validity of .. . forum selection provisions.>> When the Fendi court explained its rationale, it stated that forcing Florida courts to apply non-Florida law “would often result in divergent outcomes and 30 60 V.I. 597 (V.I. 2014). 31 See Clermont, supra note 23, at 653. 32 Symeonides, supra note 23, at 1136-37. Accord Yackee, supra note 23, at 67 (“United States courts tend not to engage in explicit choice of law analysis when determining the validity and enforceability of a given [forum selection clause] . . ., and tend instead to reflexively apply /ex fori. . . .”). 33 754 So.2d 755 (Fla. 3d DCA 2000). 34 493 So.2d 437 (Fla. 1986). 35 Fendi, 754 So.2d at 758. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 would require [Florida’s] already overburdened trial courts to engage in the complicated task of interpreting and applying the law of a foreign jurisdiction.”** ql0. The second approach, espoused by the Tenth Circuit, is the application of law agreed to by the parties in their choice of law clause to the interpretation and the enforcement portions of the forum selection clause analysis. In fact, in Yavuz v. 6] MM, Lid.,>’ the Tenth Circuit addressed the same issue 36 fd. at 759. See e.g. Claudio-De Leon v. Sistema Universitario Ana G. Mendez, 775 F.3d 41, 46-50 (1st Cir. 2014) (When reviewing a discrimination and retaliation suit initially brought by an employee against her employer in Puerto Rico District Court, the First Circuit applied First Circuit case law (i.e., local or forum law) to interpret the employment contract’s forum selection clause and applied First Circuit case law (i.e., local or forum law) to assess the forum selection clause’s enforceability.); Collins v. Mary Kay, Inc., 874 F.3d 176, 181-85 (3d Cir. 2017) (When reviewing a New Jersey wage violation suit initially filed by an independent contractor-employee against her employer in New Jersey District Court, the Third Circuit applied New Jersey choice of law case law (i.e., local or forum law) to decide which jurisdiction’s law to use when interpreting the contract’s forum selection clause and applied Third Circuit case law (i-e., local or forum law) to assess the forum selection clause’s enforceability.); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 512-13 (9th Cir. 1988) (When reviewing a suit bringing a collection of contractually-based torts claims centering on the breach of a distribution agreement initially filed in the Northern District of California, the Ninth Circuit applied federal law from various federal circuits, including the Ninth Circuit (i.e., local or forum law), to interpret the contract’s forum selection clause and applied Ninth Circuit case law and Bremen to assess the forum selection clause’s enforceability.); Weber v. PACT XPP Technologies, AG, 811 F.3d 758, 766-76 (Sth Cir. 2016) (When reviewing an executive compensation dispute originally filed in a Texas District Court, the Fifth Circuit applied Texas choice of law case law to determine which jurisdiction’s law to use when interpreting the compensation contract’s forum selection clause and applied Fifth Circuit case law, Bremen, and Atlantic to assess the forum selection clause’s enforceability.) See also, Sandler v. iStockphoto LP, Case No. 2:15-cv-03659-SVW-JEM, 2016 WL 871626, at *3-*11 (C.D. Cal. Feb. 5, 2016) (In a California unfair competition suit fited in the Central District of California, the District Court applied California law (i.e., local or forum law) to interpret the contract and to determine the plaintiff had assented to the forum selection clause in his “clickwrap” agreement and applied Ninth Circuit law, Bremen, and Atlantic to assess the forum selection clause’s enforceability.). Accord, Energy Claims Ltd. v. Catalyst Inv. Group, Ltd., 325 P.3d 70, 76-86 (Utah 2014) (In an opinion addressing the same issue this Court now faces, the Utah Supreme Court held that no choice of law analysis should occur when conducting a forum non conveniens analysis in the context of a forum selection clause. Instead, the court held that Utah law (i.e., local or forum law) is used (1) to interpret the forum selection clause and whether it relates to the lawsuit’s claims and (2) to assess the forum selection clause’s enforceability.); New York Trans Harbor LLC v. Derektor Shipyards Conn., LLC, 862 N.Y.S.2d 809 (N.Y. Sup. Ct. 2008) (In a defective design and manufacture suit in which third parties brought in by the defendant for indemnification and subrogation issues moved for dismissal based on a forum selection clause, a New York Supreme Court invoked New York case law, which provides that “it is well settled that ‘questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive in nature.’” After applying that rule to interpret the parties’ forum selection clause, the court found the clause was permissive.). 37 465 F.3d 418, 427-31 (10th Cir. 2006) (When reviewing a suit sounding in federal RICO, fraudulent misrepresentation, and contractual breach claims, the Tenth Circuit looked to a controlling fiduciary agreement between the parties, held that the law specified in the agreement’s choice of law clause should be used to interpret the agreement and its forum selection clause, invoked the rationale from Bremen and other U.S. Supreme Court opinions enforcing arbitration clauses when explaining why forum selection clauses should be upheld, and remanded the matter back to the district court for the parties to put forth arguments addressing how Swiss law would interpret the clause.). See Abbott Labs v. Takeda Pharm. Co., 476 F.3d 421, 423-26 (7th Cir. 2007) (In a breach of fiduciary duty suit turning on an agreement that contained a choice of law clause specifying Illinois law be applied to the contract and a forum selection clause naming Japan as the appropriate forum for litigation, the Seventh Circuit applied Illinois and Seventh Circuit case law to interpret the scope of the forum selection clause and IIinois case law to assess the enforceability of the forum selection clause.). Accord Bonnanno v. VTB Holdings, Inc., Case No. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 VI. Super. 70 Memorandum Opinion, May 20, 2019 this Court faces. When deciding to assess the forum selection clause through the law the parties agreed to apply to the substance of the contract, the Tenth Circuit stated: If the parties to an international contract agree on a forum-selection clause that has a particular meaning under the law of a specific jurisdiction, and the parties agree that the contract is to be interpreted under the law of that jurisdiction, then respect for the parties’ autonomy and the demands of predictability in international transactions require courts to give effect to the meaning of the forum-selection clause under the chosen law, at least absent special circumstances (such as, perhaps, the chosen jurisdiction's refusal to hear a case that has no ties to the Jurisdiction). In other words, just as the [U.S.] Supreme Court has made clear that under federal law the courts should ordinarily honor an international commercial agreement's forum-selection provision, we now hold that under federal law the courts should ordinarily honor an international commercial agreement's forum-selection provision as construed under the law specified in the agreement's choice-of-law provision.* ll. | The third approach, articulated by the Second Circuit, applies law agreed to by the parties in a choice of law clause to those questions relating to the interpretation of the forum selection clause while applying the forum’s law, local law, to determine the questions relating to the forum selection clause’s 10681-VCN, 2016 Del. Ch. LEXIS 24, at *5-*6, *15-*28 (Del. Ch. Ct. Feb. 8, 2016) (In a breach of contract suit brought to effectuate the redemption of preferred stock, the Delaware Chancery Court applied law from the jurisdiction specified in the contract’s choice of law clause, namely New York law, to interpret the contract and applied New York law to assess the enforceability of the forum selection clause.) 38 Yavuz v. 61 MM, Ltd.. 465 F.3d at 427-31 (emphasis original) (citations omitted). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 enforceability.*° When addressing this as an issue of first impression in Martinez v. Bloomberg LP,” the Second Circuit noted the divergence in approaches among the federal courts. The Second Circuit also highlighted that it was not “clear [whether] a prevailing approach on the question of what law governs the interpretation of forum selection clauses” exists and posited that this uncertainty was due to “courts’ tendency to blur the distinction between enforceability and interpretation’! when conducting forum selection clause analyses. The superficiality of this tripartite split in approaches was further evidenced in the Martinez court’s review of case law, which ultimately revealed that while “every circuit decision [the Second Circuit] located . . . applied [the] law as articulated in Bremen to decide the clause’s enforceability,” case law from across jurisdictions was not always clear which law governed interpretation analyses.*? When one drills down into the niceties of a case, the reality of what law courts apply to determine the interpretation and enforceability of forum selection clauses can be blurry. When the number of jurisdictions who knowingly apply /ex Joci are added to those who apply local law without thought or analysis, the application of local law constitutes the approach employed by a majority of 3° Martinez v. Bloomberg LP, 740 F.3d 211, 217-30 (2d Cir. 2014) (When reviewing an employment discrimination suit initially filed in a New York District Court, the Second Circuit applied law from the jurisdiction specified in the employment contract, namely English law, to interpret the forum selection clause and applied Second Circuit case law and Bremen principles to assess enforceability of the forum selection clause.). See Albemarle v. AstraZeneca UK, Ltd. , 628 F.3d 643, 648-54 (4th Cir. 2010) (When reviewing a breach of contract suit implicating a right of first refusal originally brought in South Carolina District Court, the Fourth Circuit applied the law specified in the parties’ choice of law clause when interpreting the forum selection clause and applied Fourth Circuit case law and Bremen to assess enforceability of the forum selection clause.) and Lanier v. Syncreon Holdings Ltd., Case No. 11- 14780, 2012 2012 U.S. Dist. LEXIS 114117, at *10-*22 (E.D. Mich. Aug. 14, 2012) (Ina suit sounding in contractual torts based on the breach of an executive compensation contract, a Michigan District Court applied the law specified in the contract’s choice of law clause, namely Irish and for good measure, European Union law, to interpret the contract’s forum selection clause and applied Sixth Circuit case law and Bremen to assess enforceability of the forum selection clause.). See also MBC Financial Services Ltd. v. Boston Merchant F: inancial, Ltd., 704 Fed.Appx. 14, *16-*19 (2d Cir. 2017) (When reviewing a suit sounding in violations of the Commodities Exchange Act, fraud, and breach of fiduciary duty and initially filed in the Southern District of New York, the Second Circuit applied British Virgin Islands law to interpret the contract’s forum selection clause and Second Circuit case law, Martinez v. Bloomberg LP, 740 F.3d 211 (2d. Cir. 2014), to assess enforceability of the forum selection clause.), Accord Schwarz v. St. Jude Medical, Inc., 802 S.E.2d 783, 788-89 (N.C. Ct. App. 2017) (In an employment suit centering on an employment contract, the North Carolina Court of Appeals noted that North Carolina law allows parties to write choice of law clauses into contracts, applied Minnesota contract law to interpret the employment contract since the parties agreed to have it control contractual interpretation, and applied North Carolina law (in the form of a state statute) to assess the forum selection clause’s enforceability.). 4° 740 F.3d 211 (2d Cir. 2014), “! Martinez, 740 F.3d at 222 (emphasis original) (highlighting that, as an example of issue-blurring, the Ninth Circuit in Manetti-Farrow Inc. v. Gucci America Inc., 858 F.2d 509 (9th Cir. 1988) noted the procedural issues implicated by forum selection clauses “significantly outweighed” state-related substantive interests and then continued on to highlight the difference between enforcement and interpretation questions raised by forum selection clauses before concluding that federal, i.e., /ex loci/fori, law applied to both sub-issues). 2 Id., 740 F.3d at 222. 9 Id. Bluewater Construction, Inc, v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 jurisdictions. Nonetheless, other factors are involved in determining the soundest rule for the Virgin Islands. C. The mixed approach espoused by the Second Circuit constitutes the soundest rule for the Virgin Islands. ql2. Ultimately, the answer to the initial question posed to this Court necessarily entails bifurcating the assessments of the interpretation from the enforceability of forum selection clauses. This Court, other Judges on this Court, and practitioners in the Territory have come to rely on the four-pronged test invoked by the parties in this dispute. Because the Virgin Islands test distinguishes between those elements focusing on interpretation and those focusing on enforceability, the soundest rule for the Virgin Islands is the Second Circuit’s approach. 13. | Granted, certain strengths accompany the application of local law to both interpretation and enforceability. Namely, allowing a jurisdiction to apply its own jurisprudence can: (1) allow courts to control their own jurisdiction and venue with uniform rules; (2) decide preliminary issues in accord with the natural flow of litigation practice and procedure; (3) avoid having to apply another jJurisdiction’s law to control aspects as fundamental as venue and jurisdiction of the local court; and (4) potentially close the door to abusive choice of law clauses stronger parties may force on those weaker. {l4. Conversely, certain positive aspects result when applying the law designated in the parties’ choice of law clause. Application of the parties’ choice of law may: (1) facilitate the courts’ modern propensity for favoring party autonomy, executing predictable private transactions, and aiding the stable ordering of contracts to conform to parties’ expectations, therein increasing certainty; (2) prevent the law from varying according to the court selected by the plaintiff; (3) reduce abusive forum shopping; and (4) stop a plaintiff from undermining a contract by choosing a forum friendly to his legal position.’ {15. | More persuasive are the reasons for adopting the Second Circuit’s approach. First, bifurcating the application of local law from the contracting parties’ choice of law balances a healthy “respect for contracting parties’ legitimate expectations with” a forum court’s need to ensure that it “may decline to enforce a clause if ‘trial in the contractual forum would be so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of his day in court’ or ‘if enforcement would contravene a strong public policy of the forum in which suit is brought.’””“° For example, the Virgin Islands Legislature declared it to be matter of public policy that disputes centering on insurance contracts “4 Clermont, supra note 23, at 654-55. 45 Id. at 656. “© Martinez, 740 F.3d at 218 (quoting Bremen, 407 U.S. at 15, 18) (brackets omitted). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 and insured policyholders who reside in the Virgin Islands are resolved and adjudicated in Virgin Islands courts under Virgin Islands law.*” Second, applying Virgin Islands law, following the establishment of a forum selection clause’s presumptive enforceability under the parties’ choice of law, furthers a strong public policy to reduce contractual uncertainty in trade and commerce while simultaneously furthering public policies that account for needs and realities specific to the Virgin Islands. In Bremen, the U.S. Supreme Court decided that a public policy favoring the reduction of contractual uncertainty was important enough to result in “a substantial modification of the forum non conveniens doctrine, whereby the doctrine’s usual tilt in favor of the plaintiff's choice of forum gives way to a presumption in favor of the contractually selected forum.””* Allowing Virgin Islands law to determine the fourth, Bremen-based, prong empowers Territorial tribunals to give life to Bremen’s public policy in light of the Territory’s unique history, jurisprudence, and jurisprudential development. Third, allowing local law to determine enforceability, while allowing foreign law to determine contractual interpretation, avoids “potentially complex and protracted inquir[ies] into . . . enforceability of a forum selection clause under foreign law.4? Fourth, bifurcating the source of law applied to interpretation and enforceability “accords with the traditional divide between procedural and substantive rules.” 916. In this case, both parties initially applied Virgin Islands law without conducting a choice of law analysis. In their Reply, Defendants reflexively applied Florida forum selection clause jurisprudence because it was what the choice of law clause specified. The Court finds that Florida law governs the interpretation of the forum selection clause under the first, second, and third prongs, and that Virgin Islands law governs enforceability. IH. Under Florida law, BABS and CBI’s forum selection clause passes the “reasonably communicated” test, is mandatory, and covers the parties’ breach of contract dispute. {17. In their Motion to Dismiss, CBI and BABS argue that the forum selection clause is enforceable under the test the Superior Court has used.*! Then, in their Reply, BABS and CBI note that the forum selection clause is combined with a choice of law clause, which specify that Florida is to serve as the forum and Florida law is to be used when construing and enforcing the Subcontract. After that statement ? 47 See 22 V.I.C. § 820. 48 Martinez, 740 F.3d at 218. 4 Id. at 220. °° Martinez, 740 F.3d at 220 (“Questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature.” /d. at 220 (emphasis original). “Contract law—including the rules governing contract interpretation-—is quintessentially substantive.” /d. at 221. 5! Defs.’ Mot. Dismiss, 4-6. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 CBI and BABS present Florida case law, namely Manrique v. Fabbri,” which establishes that Florida courts uphold forum selection clauses in accordance with the precepts announced by the U.S. Supreme Court in Bremen. 418. In examining the combined forum selection clause and choice of law clause in CBI, BABS, and Bluewater’s Subcontract, the Court applies the rule adopted above. Because the choice of law clause specifically states that Florida law is to apply, the Court looks to Florida law when analyzing and determining the first three prongs of the test, which touch directly upon contractual interpretation. Then, because Bluewater filed its complaint in the Virgin Islands, the Court applies Virgin Islands law when determining the fourth prong, enforceability. 419. The Court notes that the Florida Supreme Court has ruled that contractual forum selection clauses are enforceable in Florida tribunals. In that jurisdiction, “(t]he interpretation of construction of a contract is a matter of law,” and the “polestar guiding the [C]ourt in the construction of a written contract is the intent of the parties.”°> When the contract’s “language . . . is clear and unambiguous, the parties’ intent must be garnered from that language and not from extrinsic evidence.”** In addition, “courts must not read a single term or group of words in isolation.”®” Instead, “the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.’** 52 493 So.2d 437 (Fla. 1986). 53 Defs.’ Reply to Pl.’s Opp. to Defs.’ Mot. Dismiss, 4-8. %4 Manrique v. Fabbri, 493 So.2d 437 (Fla. 1986) (adopting the U.S. Supreme Court’s public policy of honoring international trade and, as a result, parties’ contractual agreements to litigate in forums specified in forum selection clauses despite the existence of venue and personal jurisdiction statutes, rules, and case law). 55 Bombardier Capital, Inc. v. Progressive Marketing Group, Inc., 801 So. 2d 131, 134 (Fla. 4th DCA 2001). 56 Id. (citations omitted). 5? Am. K-9 Detection Services v. Cicero, 100 So.3d 236, 238 (Fla. Sth DCA 2012). 58 Id. at 238-39. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 A. Under Florida law, BABS and CBI “reasonably communicated” the forum selection clause to Bluewater.*° q20. In Florida, a forum selection clause is not deemed “invalid simply because it is contained on a pre-printed form.” “In order to be enforceable, the forum selection clause in a form contract must reasonably warn the consumer that the terms and conditions are important matters affecting legal rights.”*' A court’s assessment of whether a contract reasonably warns a signatory has come to take shape in Florida case law as the “reasonable communicativeness” test. “The relevant inquiry is whether the terms of the clause were reasonably communicated to the consumer and are fundamentally fair.”® {21. | The Court employs a “two-part test . . . which takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.”®? When viewing the physical characteristics prong, the court considers whether the clause is “physically conspicuous and ‘eye-catching’ in the printed document.” Relevant features include “size of type, conspicuousness and clarity of notice on the face of the contract,’®* whether the clause “was not a part [of] a separate paragraph,” whether the content was conveyed “in legible type in the same font and type size as the surrounding paragraphs,” if it began with the words “I agree” or notified the signers(s) “in bold capitalized letters to READ BEFORE SIGNING,””” as well as the “ease with which the plaintiff can read the provisions.”** When deciding whether plaintiffs had the “ability to * Florida case law determines whether a forum selection clause was “reasonably communicated,” but not as part of a separate prong of a larger test assessing enforceability, as in the Virgin Islands. Instead, the “reasonably communicated” analysis forms part of the assessment determining overall enforceability of the clause under case law interpreting Bremen and Shute’s reasonableness tests. More specifically, Florida’s “reasonably communicated” test forms part of the jurisdiction’s analysis of whether a forum selection clause is “fundamentally unfair,” an analysis more akin to that embodied under prong four of the Virgin Islands test. Where a Florida court determines whether a forum selection clause is enforceable, case law indicates that a distinction is made between negotiated contracts and non-negotiated contracts in the consumer context. When analyzing the former, Florida case law appears to rely on the traditional test enunciated in Bremen. When examining the latter, then Florida courts invoke its “fundamental fairness” analysis as embodied in the jurisdiction’s reasonably communicated test. Though the reasonably communicated test in Florida is used to assess overall enforceability in a largely non-negotiated consumer contract context, and though, conceptually, this appears more akin to prong four of the Virgin Islands forum selection clause test, the Court acknowledges the guidance this case law provides here to complete prong one. See Liles v. Ginn-La West End Inc., 631 F.3d 1242, 1246 (11th Cir. 2011). Sun Trust Bank v. Sun Int’l Hotels, Ltd., 184 F.Supp. 2d 1246, 1259 (S.D. Fla. 2001) (quoting Carnival, 499 U.S. at 593), 6! Sun Trust Bank, 184 F.Supp. 2d at 1259-60. ® Early Auction Co. v. Koelzer, 114 So.3d 1038, 1041 (Fla. 4th DCA 2013). % Liles, 631 F.3d at 1246. Sun Trust Bank, 184 F.Supp. 2d at 1260. 65 Id. 6 Krenkel v. Kerzner Int'l Hotels, Ltd., 579 F.3d 1278, 1281-82 (11th Cir, 2009). 87 Id. 68 Sun Trust Bank, 184 F.Supp. 2d at 1260. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 become meaningfully informed of the clause and to reject its terms,” the Court is instructed to look to whether the plaintiffs had been presented with the forum selection clause prior to formally executing the contract with finality,“’ whether the plaintiffs were “free to reject [the clause or the contract] with impunity,””? whether acceptance of the contract and its forum selection clause was required at the last minute on a take it or leave it basis,’! whether the contract was presented in advance of the transaction’s formal execution, allowing the plaintiff to read, consider, and possibly reject the forum selection clause,” and whether the contract’s final execution and acceptance by the plaintiff was conditioned on the plaintiff's acceptance of the clause which had been presented to the plaintiff in prior proposals.” 922. Bluewater’s Subcontract with CBI and BABS is a form contract, but it was not executed within a consumer context. All three parties are business entities. No facts in the record indicate that this Subcontract was not the product of a negotiated transaction. Nonetheless, this Court must assess whether the forum selection clause was reasonably communicated under Florida law. 423. The Subcontract is eight pages in length, and the letterhead on its first page clearly indicates that BABS was its drafter. The body of the Subcontract is divided into 16 numbered subsections, each of which is labeled with a title specifying its contents. Each subsection’s title and number is typed in bold and underlined in a font that appears to be the same size. At the bottom right corner of each page, BABS placed a blank for Bluewater’s signatory to initial and a corresponding blank for BABS’ signatory to initial. On each of the eight pages, “jh” is typed into the spaces designated for Bluewater’s signatory, Jeremy Henkel.” Also, on seven of the eight pages, what appears to the Court to be “JV” in cursive handwriting is inscribed into each space designated for BABS’ signatory, John Vrabec.”> On page seven, both Jeremy Henkle and John Vrabec signed their full signatures indicating their acceptance to the contract’s terms and obligations to each other.”© Above their signatures is Section 15, labeled “ General 6° See Krenkel, 579 F.3d at 1281-82. 70 See Sun Trust Bank, 184 F.Supp. 2d at 1261 (finding that receiving a cruise ticket contract two to three days prior to cruise departure when the contract states that cancellation of the contract would lead to forfeiture instead of a refund or a rescission did not rise to the reasonable communicativeness standard). " Id. ?2 See Early Auction, Co., 114 So.3d at 1041-42. ® See Sabino v. Kerzner Int'l Bahama, Ltd., Case No. 12-22715-CIV-M CALILEY, 2014 U.S. Dist. LEXIS 180090, at *14-*15 (S.D. Fla. Jan. 10,2014). Compare Foster v. Sun Int'l Hotels, Ltd., Case No. 01-1290-CIV-KING, 2002 US. Dist. LEXIS 28475 (S.D. Fla. Feb. 1, 2002), Larsen v. Kerzner Int'l, Lid, Case No. 08-2203 1-CIV- MORENO/TORRES, 2009 U.S. Dist. LEXIS 124961 (S.D. Fla. May 4, 2009), and Sun Trust Bank, 184 F.Supp. 2d at 1290 to Krenkel, 579 F.3d at 1281 n.1 and Miyoung Son v. Kerzner Int'l Resorts, Inc., Case No. 07-61171-CIV- MARRAY JOHSON, 2008 U.S. Dist. LEXIS 67482 (S.D. Fla. Sept. 5, 2008). ™ The Subcontract indicates that Jeremy Henkel is Bluewater’s President. Compl. Exh. !. 7° The Subcontract indicates that John Vrabec is BABS’s Executive Vice President and signs not only on behalf of BABS but also “acting for Owner [CBI] as its authorized representative.” /d. 78 Id. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 Requirements” and addressing miscellaneous topics ranging from which party is entitled to receive attorney’s fees and costs upon litigation to a requirement that no radios be allowed on the project worksite “other than communication devices.”’’ Within this list, paragraph d. contains the combined choice of law and forum selection clause statement. While the font size, type, and lack of boldness do not make it stand out from the other paragraphs listed from a. to p., the clause does receive its own paragraph and stands alone. 24. | With these physical characteristics, the Court finds that the Subcontract and its forum selection clause are most akin to that analyzed in Krenkel v. Kerzner International Hotels."® In Krenkel, though part of a contract signed by a consumer with a hotel, the relevant forum selection clause was set out in a contract consisting of eight paragraphs, one of which contained the forum selection clause. In addition, the paragraph with the forum selection clause “was in legible type in the same font and type size as the surrounding paragraphs . . . [and] sufficiently gave the Krenkels notice they were agreeing to litigate any disputes that might arise . . . in the Bahamas.””* In addition, the Krenkels had visited the same hotel in the past when they also signed a form bearing the same forum selection clause. In light of these facts, the Eleventh Circuit upheld the forum selection clause, even though the Krenkels argued that they had not been meaningfully informed of, nor had the opportunity to reject, the forum selection clause because “the front desk personnel confirmed their assumption that the agreement pertained only to water sport activities.”*” Ultimately, the Krenkel court held that the plaintiffs could not claim they were surprised by the clause because they had a reasonable opportunity to consider and reject the forum selection clause owing to their prior knowledge of the clause. (25. Shedding more light on this case is Liles v. Ginn-La West End, Inc*' There, the forum selection clause formed part of a contract for the sale of land in the Bahamas. When analyzing the parties’ contracts, the Liles court found that the “contracts were freely negotiated.” Unlike the contract in Krenkel, in which one of whose parties was a consumer, the Liles contracts were “sophisticated real estate transactions involving large sums of money . . . rang[ing] from $525,900 to $1,370,900.”®? As a result, even though the Liles court held that the “reasonable communicativeness” test did not need to apply, it still analyzed the physical characteristics of the contract under the “reasonable communicativeness” test. Ultimately, the court held that the Liles forum selection clause, which was set apart in a separate " Id. 7 $79 F.3d 1278 (11th Cir. 2009). ” Id, at 1281-82. 80 Id. 8! 631 F.3d 1242 (11th Cir. 2011). 82 fd at 1246-47. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 paragraph in the same font size and type as those surrounding it and preceded by a separate label entitled “GOVERNING LAW;VENUE,” was enforceable. 126. Here, the forum selection clause stands in its own paragraph. At the bottom of each page of the contract, each party’s signatory affixed his initials. Moreover, the page on which the forum selection clause is placed is the one page of the contract on which the parties’ signatories placed their full signatures, printed their proper names, and indicated their positions within their respective organizations. While BABS and CBI argue in their initial Motion to Dismiss that the forum selection clause “was communicated” to Bluewater, they did so by pointing to the very clause currently under scrutiny. Neither party speaks to whether the topic was discussed during contract negotiations, and no detail in the record indicates whether the choice of forum was mentioned. While it can be contended that CBI and BABS had a stronger bargaining position vis-a-vis Bluewater, all three parties were engaging in a sophisticated construction project. Their transaction was not like a consumer transaction where Bluewater had scant time to decide whether to take the deal or leave it. Accordingly, the Court finds that Bluewater had the opportunity to become meaningfully informed of the clause, as well as an opportunity to reflect and then reject it. Under the Florida case law addressing forum selection clauses and the more specific guidance provided by Krenkel and Liles, the Subcontract passes the “reasonable communicativeness” test under Florida law. B. Under Florida law, the forum selection clause is mandatory. {27. “A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the clause.”®? “Generally, a forum selection clause is mandatory where the plain language used by the parties indicates exclusivity.”** “Exclusivity exists where ‘forum selection clauses state or clearly indicate that any litigation must or shall be initiated in a specific forum.’”®> The clause’s language “need only contain terms expressing that nature, no magic words.’”* 128. “Under this test, the court must examine the language of the clause for words of exclusivity.”®’ Where these words are absent, “the clause will be considered permissive.”®* Florida tribunals hold that a permissive clause amounts to “nothing more than a consent to jurisdiction and venue in the named forum 83 Michaluk v. Credorax (U.S.A.), Inc., 164 So.3d 719, 722 (Fla. 3d DCA 2015). 84 Iq. 85 Shoppes Limited Partnership v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002). 86 Golf Scoring Systems Unlimited Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004). 8’ Golden Palm Hospitality Inc. v. Stearns Bank Nat'l Assc'n, 874 So.2d 1231, 1236 (Fla. 5th DCA 2004). 88 Td. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutians, Inc. Case No. ST-18-CV-434 VI. Super. 70 Memorandum Opinion, May 20, 2019 and does not exclude jurisdiction or venue in any other forum.”®’ In short, a permissive clause functions to “provide an alternative to the statutory choices of venue but it does not require the plaintiff to file the suit in the forum referenced to in the agreement.””” 29. Typically, case law “primarily focus[s] on [words like] ‘shall’ or ‘must’ rather than ‘exclusively;” when looking for mandatory clauses.”! Florida courts have also held that “consent to jurisdiction” clauses or “submit” to jurisdiction clauses typically are labeled as “a hallmark of a permissive venue provision.”” 930. In addition to these mandatory and permissive categories, two additional classes of cases have led Florida tribunals to take note that in some instances more parsing of words may be required. For one set of cases, the forum selection clause at issue lacks magic words such as “shall” or “may.” In these instances, the court’s determination hinges on the dictionary definition and plain meaning of the terms to which the parties agreed.” In the other grouping of cases, the forum selection clause usually employs terms which indicate both a mandatory and a permissive nature.” In these instances, the court reads the ® Travel Express Investment Inc. v. AT&T Corp., 14 So.3d 1224, 1227 (Fla. 5th DCA 2009) (quoting Garcia Granados Quinones v. Swiss Bank Corp., S.A., 509 So.2d 273, 274-75 (Fla. 1987)). % Golden Palm Hospitality, Inc., 874 So.2d at 1236. 9! Agile Assurance Group, Ltd. v. Palmer, 147 So.3d 1017, 1018 (Fla. 2d DCA 2014) (holding that the forum selection clause had permissive and mandatory language and, as a result, the court interpreted the clause in a way that gave effect to all words in the clause, both permissive and mandatory). %2 Am. K-9 Detection Services, 100 So.3d at 239 (enforcing as permissive a forum selection clause in which the “parties ... consent to... the personal jurisdiction of the federal and state courts within Central Florida”); Golden Palm Hospitality, Inc., 874 So.2d at 1236 (enforcing as permissive a forum selection clause in which “Borrower agrees upon Lender’s request to submit to the jurisdiction of the courts of STEARNS County, State of Minnesota”); Shoppes Limited Partnership, 829 So.2d at 358 (Fla. Ct. App. 5th DCA 2002) (enforcing as permissive a forum selection clause in which a “Guarantor hereby consents to the jurisdiction of the state and federal courts of the Commonwealth of Massachusetts”); Regal Kitchens Inc. v. O'Connor & Taylor Condominium Construction, Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005) (enforcing as permissive a forum selection clause which stated “Any litigation concerning this contract shall be governed by the law of the State of Florida, with proper venue in Palm Beach County” because the clause lacked language of exclusivity to show venue is proper in only the specified forum, i.e., with Palm Springs as the forum). % See e.g., Celistics LLC v. Gonzales, 22 So.3d 824, 825-26 (Fla. 3d DCA 2009) (enforcing as mandatory a forum selection clause which stated “the parties agree to select the venue and jurisdiction of the Courts and Tribunals of the city of. . . .” because the definition of “agree” is to “give mutual assent” and the definition of “select” is “to take preference from among others”) and Golf Scoring Systems Unlimited, Inc., 877 So.2d at 829 (enforcing as mandatory a forum selection clause which stated “parties hereto consent to Broward County, Florida as the proper venue. . . .” because, even though the word “consent” is used, it is used in conjunction with “the” in a way that indicates “the” limits that to which it refers to the exclusion of all others). %4 See e.g., Travel Express Investment, Inc., 14 So.3d at 1227 (enforcing as mandatory a forum selection clause which stated “The parties consent to the exclusive jurisdiction of. . . .” because, even though the word “consent” is used, it is followed by the words “exclusive jurisdiction,” indicating a mandatory nature). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 clause’s language in its entirety, “endeavor[ing] to give every term meaning and effect,” and enforces it as the plain language to which the parties agreed indicates.” 431. Turning to the Subcontract executed by Bluewater, CBI, and BABS, the forum selection clause states: “Jurisdiction and venue is hereby expressly reserved for Hilisborough County, Florida.’ Lacking “magic words” like “must” or “may,” the term “expressly reserved” directs the Court’s attention to the third category described above. As seen in Celistics, LLC v. Gonzales,** the parties employ language that indicates exclusivity. The term “reserved” is an adjective defined as “kept or set apart or aside for future or special use.””? When its root is defined as a verb, “to reserve” means “to retain” or “hold a right or entitlement, especially by formal or legal stipulation.”"®° Other sources define the verb to mean “to set or have set aside or apart’”’®! and “to keep something for a particular purpose or time.”!”? In addition, the term “expressly” is defined as “for a specific purpose” and “solely.”'®? Based on the plain meaning of these terms, the parties agreed that if litigation were to arise, then jurisdiction and venue were to be “kept or set apart or aside” “for a specific purpose” of settling legal disputes solely in Hillsborough County, Florida to the exclusion of other venues or jurisdictions. Accordingly, the Court finds that the forum selection clause in Bluewater’s Subcontract is mandatory. C. Under Florida law, the scope of the Subcontract encompasses the breach of contract claims. 32. | Next, the Court must decide whether the breach of contract claims Bluewater asserts against CBI and BABS fall within the scope of the forum selection clause. 33. | Florida case law indicates that its courts look to the Florida Supreme Court’s holding in Jackson v. Shakespeare Foundation, Inc.,‘“ which interpreted an arbitration clause’s language in order to determine its scope. In Jackson, the Florida Supreme Court delineated between arbitration clauses that % Agile Assurance Group Ltd., 147 at 1018. % See Michaluk, 164 So.3d at 723-27 (enforcing as permissive a forum selection clause which stated “each party submits to the jurisdiction of the Courts of... .” because it lacked additional words indicating a mandatory nature with which the parties must submit to the named forum despite the clause’s use of mandatory phrasing with regard to the choice of law portion of the clause). 37 Compl., Exh. 1. 98 22 So. 3d 824 (Fla. 3d DCA 2009). °° Merriam-Webster, https://www.merriam-webster.com/dictionary/reserved (last visited May 12, 2019). '0 Oxford Dictionaries, https://en.oxforddictionaries.conv/definition/reserve (last visited May 12, 2019). '01 Merriam-Webster, https://www.merriam-webster.com/dictionary/reserve (last visited May 12, 2019). '02 Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/reserve (last visited May 12, 2019). 13 Oxford Dictionaries, https://en.oxforddictionaries.conydefinition’expressly (last visited May 12, 2019). 104 108 So.3d 587 (Fla. 2013). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 use language indicating an application that is narrow in scope'® and those that use language indicating an application that is broad in scope.' Since Jackson was decided, Florida courts of appeal apply its precepts to forum selection clauses on a case-by-case and fact intensive basis.’°’ Further, Florida appellate precedent routinely holds that breach of contract claims fall within the scope of forum selection clauses included in the contract upon which the claim of contractual breach is founded.'®® Only when addressing claims that are not strictly contractual do Florida courts engage in more extensive analysis, parsing whether the exact words of the forum selection clause contain the phrase “relating to” and applying Jackson’s rubric accordingly.'” '°5 See Jackson, 108 So.3d at 593 (“An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies ‘arising out of” the subject contract. This type of provision limits arbitration to those claims that have a direct relationship to a contract’s terms and provisions.”). 106 See id (“In contrast, an arbitration provision that is considered to be broad in scope typically requires arbitration for claims or controversies ‘arising out of or relating to’ the subject contract. The addition of the words ‘relating to’ broadens the scope of an arbitration provision to include those claims that are described as having a ‘significant relationship’ to the contract—regardless of whether the claim is founded in tort or contract law. A ‘significant relationship’ between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a ‘contractual nexus’ between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.”). *? See Inspired Capital, LLC v. Conde Nast, 225 So.3d 980, 982 (Fla. 3d DCA 2017) (stating the precepts established in Jackson, noting that Jackson’s precepts had been applied to a forum selection clause determination made in another Florida Court of Appeals decision, Fairbanks Contracting and Remodeling, Inc. v. Hopcroft, 169 So.3d 282 (Fla. 4th DCA 2015), and thereafter applying Jackson’s rubric to the licensing agreement then before the Inspired court). 08 See Baker v. Economic Research Services, 242 So.3d 450, 455 (Fla. 1st DCA 2018) (holding that the trial court erred when not determining whether the plaintiff's non-contractual claims were covered by the forum selection clause’s language and simultaneously holding that the contractual claims were not remanded because the latter were clearly subject to the forum selection clause while the non-contractual claims were remanded for the trial court to determine whether they fell within the forum selection clause’s scope). '® See Inspired Capital, LLC, 225 So.3d at 982 (applying Jackson's precepts to a forum selection clause in a licensing agreement using the phrase “relating to” and interpreting the forum selection clause as broad, thus, encompassing aiding and abetting, civil conspiracy, and misappropriation of trade secrets claims) and Baker, 242 So.3d at 455. Compare Fairbanks Contracting and Remodeling Inc. v. Hopcroft, 169 So.3d 282, 283-84 (Fla. 4th DCA 2015) (holding that a Florida Deceptive and Unfair Trade Practices Act claim fell under the scope of a forum selection clause comprising the phrase “relating to” because that phrase is broad in construction and allegations in the complaint correspond directly to express contractual provisions) to Management Computer Controls Inc. v. Charles Perry Construction, Inc., 743 So.2d 627, 631-33 (Fla. [st DCA 1999) (holding that a forum selection clause in a license agreement that was incorporated by reference into an order form contract covered negligent misrepresentation and breach of implied warranty claims but, based on the facts of that case, did not cover a Florida Deceptive and Unfair Trade Practices Act claim). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 934. The forum selection clause in the Subcontract between Bluewater, CBI, and BABS’ states: “venue and jurisdiction [are] hereby expressly reserved for Hillsborough County, Florida.” The phrase does not include any terms that Florida courts routinely use to determine whether the forum selection clause’s scope is broad or narrow in nature. Drawing analogies is only helpful when the other cases address contract language that is the same or substantially similar to the language presently analyzed. None of the Florida cases found in this Court’s research revealed forum selection clause terms akin to those in the Subcontract. Fortuitously, Bluewater’s claims are breach of contract claims. The same document that contains the disputed forum selection clause also establishes that (1) each party has agreed to take on mutually binding contractual obligations and duties and (2) the performance of these obligations may be enforced at law if one party fails to follow through by not performing their contractual obligation. As a result, the Court finds that the forum selection clause’s scope covers Bluewater’s breach of contract claims against both CBI and BABS.!''” 9 Florida courts routinely allow forum selection clauses to be enforced against and by non-signatories to a contract. Their determinations rest on a tripartite test which assesses whether “‘(1) there exists a close relationship between the non-signatories and the signatory who is the subject of the agreement; (2) the non-signatories’ interests are derivative of the signatory’s interests; and (3) the claims involving the non-signatories arise directly out of the agreement.” East Coast Karate Studios, Inc. v. Lifestyle Martial Arts, LLC, 65 So.3d 1127, 1128 (Fla. 4th DCA 2011) (holding that a non-compete agreement applied to a signatory employee, his non-signatory wife, and non- signatory new employer because (1) all three had a close relationship based on the fact that they work together; (2) the interests of the wife and the new employer (to be able to hire the employee) derive from the enforceability of the employee’s non-compete agreement; and (3) the tortious interference with a non-compete claims against the wife and the new employer arise from the employee’s non-compete agreement). See also Deloitte & Touche v. Gencor Industries, Inc., 929 So.2d 678, 683 (Fla. 5th DCA 2006) (holding that Deloitte could enforce a forum selection clause against non-signatory Gencore because (1) a close relationship was found to exist between signatory Gencore ACP and Gencor since the latter owned the former; (2) non-signatory Gencor’s work performed was the performance at issue in the suit; and (3) the claims brought related directly to the auditing services Deloitte provided under its contract at issue with Gencore ACP); World Vacation Travel, S.A. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (holding that a forum selection clause could be enforced against a non-signatory where the complaint’s claims arose directly out of the agreement and the commercial relationship of the parties); Tuttle’s Design-Build, Inc. v. Florida Fancy, Inc., 604 So.2d 873, 873-74 (Fla. 2d DCA 1992) (holding that a forum selection clause, on a payment bond issued by Preferred National Insurance Co. for Tuttle with regard to a public construction contract for which Florida Fancy delivered materials to Tuttle, was able to be enforced against Florida Fancy because (1) as a third party beneficiary and sub-contractor, Florida Fancy had a close relationship with the signatories; (2) its interests derived from Tuttle’s rights in the bond to be paid; and (3) its right to be paid derived, ultimately, from the payment bond contract); Citigroup Inc. v. Caputo, 957 So.2d 98, 100-03 (Fla. 4th DCA 2007) (holding that a forum selection clause was enforceable against non-signatory Citigroup because Citigroup was closely related to Citibank (who was a signatory); (2) Citigroup’s interests were derived from Citibank’s interests as they were outlined in the pertinent agreement and due to the parties’ commercial relationship; and (3) the claims at issue were breach of contract claims arising out Citibank’s contract with Cavuto and the language of the contract showed it covered the claims at issue). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.E. Super. 70 Memorandum Opinion, May 20, 2019 IV. Bluewater has not met its burden to rebut the presumption that the Subcontract’s forum selection clause is enforceable. 935. |CBland BABS argue that Bluewater cannot rebut the presumption that the Subcontract’s forum selection clause is enforceable, as mandated by the Virgin Islands forum selection clause test’s fourth prong, because no claim of fraud or overreaching has been made; no Virgin Islands public policy is implicated by the Subcontract; and no evidence shows that refiling in another jurisdiction would be so inconvenient that such a change would be unreasonable.'"! In its Opposition, Bluewater asserts that: (1) while it is “hard pressed to argue that there was fraud in the execution of the contract,”!!? the forum selection clause was overreaching because the clause was included in boilerplate language and was not specifically bargained for by the parties during contract negotiations; (2) “there is always a public policy that favors a determination of a dispute between parties in the venue where the parties are domiciled and conduct business;”?? and (3) Florida is so seriously inconvenient that requiring litigation in that jurisdiction would be unreasonable for Bluewater and CBI because each entity’s documents and records are in the Virgin Islands.''* In their Reply, CBI and BABS assert that no evidence shows that the Subcontract resulted from overreaching; no public policy is contravened by changing the dispute’s venue to Florida; and, under Florida law, the “mere inconvenience” of having records located in a jurisdiction different from the one in which litigation occurs, even when combined with the “additional expense” of transporting documents, records, and witnesses for trial, does not rise to the level of inconvenience which empowers the Court to reject a forum selection clause. 736. As has been established, the Virgin Islands Supreme Court has not had the opportunity to rule on forum selection clauses nor the test used to assess their validity. No holding specifically addressing forum selection clause enforceability is clearly binding on this Court. Nonetheless, this Court and other judges on this Court have come to rely upon a four-pronged test, the fourth prong of which provides that the party resisting a change in venue may rebut the presumption of enforceability by showing: (1) that the clause is the result of fraud or overreaching; (2) that enforcement would violate [a] strong public policy of the forum; or (3) that enforcement would, in the particular circumstances of the case, result in jurisdiction so seriously inconvenient as to be unreasonable.”! > 'I! Defs.” Mot. Dismiss, 4-6. '!? Pl.’s Opp. to Defs.’ Mot. Dismiss, 6-7. 37g ,7 "4 1q.,7-8. "3 Philo v, Armstrong Service, Inc., Case No. ST-16-CV-685, 2017 WL 2294638, at *2 (V.I. Super. Ct. May 22, 2017). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.L Super. 70 Memorandum Opinion, May 20, 2019 137. In addition, this Court and other judges on this Court have had opportunity to apply this test when determining whether parties may invoke forum selection clauses to dismiss litigation properly initiated in the Virgin Islands. In two of these five instances, the decisions rested on the forum selection clause’s permissive language''® and the failure of the clause to extend to the legal claim.''’ Of the remaining three instances in which the Court’s determination turned on the fourth prong of the Virgin Islands forum selection clause test, none include discussion that informs our present analysis.''® As a result, the Court looks beyond this jurisdiction for guidance in determining what fact patterns direct the enforcement of a forum selection clause. First, the Court reviews the U.S. Supreme Court’s precepts established in M/S Bremen v. Zapata Off-Shore Co.'” and its progeny, specifically, Carnival Cruise Lines Inc. v. Shute,'™ because the three routes through which enforceability may be rebutted in prong four derive from these holdings. Second, the Court reads other jurisdictions’ application of Bremen-Carnival. Third, the Court assesses the U.S. Supreme Court’s most recent holding addressing forum selection clauses in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas.'*" '' Phillip Carroll v. Ryan Sharkey et al., Case No. ST-18-CV-212, at *7-*10 (V.I. Super. Ct. Nov. 13, 2018) (finding that a contract’s forum selection clause did not contain mandatory language which required that litigation arising out of the contract occur in the named forum of Maine because the clause stated “The partners submit to the jurisdiction of the courts of the state of Maine. . . .” and not dismissing the case from Virgin Islands tribunals). ''” Beedle v. Kilgus, Case No. SX-17-CV-169, 2017 WL 5665413, at *2 (V.I. Super. Ct. Nov. 21, 2017) (finding that because a contract's forum selection clause states that it covers claims “arising out of or concerning this lease or any rights or obligation derived therefrom. . . .” the clause’s scope did not extend to encompass the plaintiff's negligence/premises liability claim because the negligence claim arose from a general duty owed in tort law and not from any contractual rights created by the lease contract). "8 In Neon Construction Enterprises, Inc. v. International Bonding and Construction Services, Inc., Case No. ST- 11-CV-13, 2012 WL 3111748 (V.I. Super. Ct. July 25, 2012), another judge on this court determined that a foram selection clause contravened a Virgin Islands public policy which establishes that lawsuits filed in Territorial courts and centering on the construction of an insurance contract delivered in the Territory must not be dismissed from the Territory’s jurisdiction. /d. *2. In Philo v. Armstrong Service, Inc., Case No. ST-16-CV-685, 2017 WL 2294638 (V.I. Super. Ct. May 22, 2017), this Court determined that a forum selection clause in an Operations and Maintenance Agreement executed among co-defendants would not be enforced because the claims at issue among the co-defendants were contractual indemnification, common law indemnification, contribution, and equitable subrogation cross-claims. /d. at *3. Ultimately, the Court found that the forum selection clause should not be enforced because doing so would have been “unreasonable where there is a possibility of prejudice through conflicting judgments by duplicitous litigation in multiple courts, or where filing subordinate claims in a separate court would result in judicial inefficiency.” In short, the decision hinged on procedural and judicial housekeeping concerns. And in Resqwest-axiom Services, Ltd. v. Cruz Bay Watersports, Inc., Case No. ST-16-CV-384, 2016 WL 7077865 (V.1. Super. Ct. Nov. 30, 2016), this Court enforced a forum selection clause, despite its permissive language, because the party resisting enforcement did not allege fraud with regard to the clause itself, did not point to a Virgin Islands public policy the clause contravened, and was unable to claim that Bermuda was an inconvenient forum due to the resisting party’s own offices’ location in Bermuda. /d. at * 4. 19 407 U.S. 1 (1972). 120 499 U.S. 585 (1991). 121.571 U.S. 49 (2013). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 938. Since the U.S. Supreme Court decided Bremen, forum selection clause jurisprudence has undergone a sea change. Prior to this watershed case, U.S. courts uniformly abhorred forum selection clauses because they were seen as “tend[ing] to oust a court of jurisdiction.”'?? But the Bremen court turned this ‘vestigial legal fiction’’'*’ on his head when it held that forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.”!*4 939. The Bremen court further clarified the phrase “under the circumstances” by establishing that a “freely negotiated private . . . agreement, unaffected by fraud, undue influence, or overweening 99.25. bargaining power’’** and “made at an arm’s-length negotiation by experienced and sophisticated businessmen”!* should be enforced unless the resisting party’s showing could meet one of two thresholds. Specifically, the resisting party must “clearly show [1] that enforcement would be unreasonable or unjust, or [2] that the clause was invalid for such reasons as fraud or overreaching.”'?’ If a court finds “that the [forum selection] clause could not fairly be said to represent the intent of the parties” because it was the result of fraud or overreaching, then a court can only find that “there could be no valid agreement . . . to enforce.”'** Alternatively, if the Court finds that, although the “agreement itself was legally valid, the consequences of enforcement would be” too harsh, then its enforcement should be deemed unreasonable or unjust.'*” Though Bremen “did not define precisely the circumstances that would make it unreasonable {or unjust] for a court to enforce a forum clause,”!* the decision identified two hypothetical scenarios in which it could become unreasonable or unjust to enforce a forum selection clause: (1) where the forum selection clause contravenes a strong public policy of the forum in which the suit was brought or (2) where “the chosen forum is seriously inconvenient for the trial of the action.”'*! When crafting arguments addressing the latter situation, “it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.”'??. Concerning the 122 Bremen, 407 U.S. at 12. 123 ld. 124 Td. at 10. 125 Id at 12. 126 Td. 127 Td. at 15. 128 Walker v. Carnival Cruise Lines, 107 F.Supp.2d 1135, 1139 (N.D. Cal. 2000). 129 td. 130 Carnival, 499 U.S. at 591. 131 Bremen, 407 U.S. at 16 (emphasis original). 132 Td. at 18. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 former circumstance, the public policy may be established by either statute or by judicial decision.'?* Regarding both, the Bremen court was clear that the party resisting enforcement would “bear a heavy burden of proof,”'™ no matter the line of argument employed. 40. The U.S. Supreme Court again took up the issue of forum selection clauses in Carnival Cruise Lines, Inc. v. Shute.'*? In Carnival, the Court further developed Bremen’s holding by extending its application to disputes centered on “form contract[s,] the terms of which are not subject to negotiation”!** and to which one party will not have bargaining parity with the other contracting party. More precisely, the Carnival court clarified that Bremen did “not adopt the . . . determination that a nonnegotiated forum selection clause . . . is never enforceable simply because it is not the subject of bargaining,”"*” and reiterated that those parties resisting enforcement of a forum selection clause in a form contract still bear a “heavy burden.”!** The Carnival court explained that contested forum selection clauses within a form passage contract for a cruise “are subject to judicial scrutiny [under a] fundamental fairness” standard.'* Though its determination and specific holding turned on whether “fraud, overreaching, or some bad faith motive by the party favoring enforcement”!*” rendered the forum selection clause unenforceable, the Carnival court also retained the extreme inconvenience of the contract forum exception as an alternative route to nonenforcement.'*! 41. Indeed, the facts surrounding the execution of the contracts in Bremen and Carnival differ. Nonetheless, different jurisdictions have integrated these holdings into the standards used to determine forum selection clause enforceability. In applying the Bremen-Carnival principles, federal trial and appellate courts and state courts have developed approaches for assessing the arguments through which Bluewater resists enforcement of the Subcontract’s forum selection clause. 942. First, Bluewater argues the Subcontract’s forum selection clause was overreaching because it was included as contractual boilerplate language and was not specifically bargained for by Bluewater, CBI, and BABS. However, courts have been firm when reiterating Bremen-Carnival’s application in such 133 Id. at 15. 134 Id. at 17. 135 499 U.S. 585 (1991). 136 Id. at 593. 137 ld. 138 Yd. at 592, 595. '39 Id. at 595, '40 Walker, 107 F.Supp. at 1140. 'S! Carnival, 499 U.S. at 592, 594-95. Though the Carnival decision rejected this lattermost route to nonenforcement when applying the inconvenience standard in that case, it did so only because the appellate court, as opposed to the district trial court, made a factual finding that the Shutes, as plaintiffs, were limited economically from pursuing litigation in another jurisdiction. /d. at 594-95. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 circumstances: “the [U.S.] Supreme Court has made clear that unequal bargaining power and non- negotiation of a forum selection clause are not enough to negate the clause.”!42 Moreover, “a form contract does not automatically amount to the overreaching proscribed by” Bremen.'* Instead, to constitute overreaching, a contract should indicate that the parties took on contractual obligations disproportionately uneven in weight.'4 943. Notably, Bluewater is a contractor that was sufficiently established and experienced to contract with the owner and general contractor for one of the Territory’s more widely-known resorts. Under the terms of the Subcontract, Bluewater knew it was responsible for providing materials as well as labor for both the interior and exterior remodeling and reconstruction of Caneel Bay Resort on St. John.'4° Similarly, under the terms of the Subcontract, Bluewater also knew it was agreeing to incur contractual duties subject to the forum selection clause, which was included in the same sized font as all other contractual duties, on the only page of the Subcontract that representatives of all parties signed. Indeed, the contract was more akin to that found in Bremen, in that these parties were experienced, sophisticated construction professionals. It resembled that found in Carnival only to the extent that the parties used a form contract that contained boilerplate language in the Subcontract to create the forum selection clause. As a result, the Court finds that Bluewater has not established that the boilerplate language and lack of negotiations warrant non-enforcement of the forum selection clause due to overreaching. 944. Second, Bluewater contends that “there is always a public policy that favors a determination of disputes in the venue where parties are domiciled or conduct business.” Indeed, without a forum selection 2 Pacific Health Advantage v. Cap Gemini Ernst & Young U.A., LLC, Case No. C 07-1565 PJH, 2007 U.S. Dist. LEXIS 101238, at *4-*5 (N.D. Cal. 2007) (finding that a resisting party’s arguments for not enforcing a forum selection clause due to the contract having been obtained through fraud (and not the clause itself having been obtained through fraud) and due to the inconvenience of the forum selection clause’s named forum failed to meet the standard required for nonenforcement and transferring the lawsuit to the named venue as a result). '3 Janko v. Outboard Marine Corp., 605 F.Supp. 51, 52 (W.D. Okla. 1985) (finding that the resisting party’s arguments for not enforcing a forum selection clause due to unequal bargaining positions, boilerplate contractual language, and the inconvenience of the forum selection clause’s named forum failed to meet the standard required for not enforcing a forum selection clause because the corporate plaintiff was “an established and experienced dealer” before contracting with the defendant and the forum selection clause was noticeable in the written contract and transferring the lawsuit to the named venue as a result). '4 See Dove Air, Inc. v. Bennett, 226 F.Supp.2d 771, 774-75 (W.D. N.C. 2002) (finding that the language in a joint venture agreement amounted to overreaching because (1) only one party had sole authority to accept or reject purchases and sales on behalf of the joint venture; to conduct an accounting of profits, losses, and operating costs; and to retain the contractual right to be indemnified by the weaker party in instances of negligence; (2) only one party was prohibited from competing against the joint venture while the other, stronger, contracting party was not; (3) only one party was required to personally guarantee the joint venture’s obligations while the other, stronger, contracting party was not; and (4) the party with the more advantageous bargaining position knew the weaker party was experiencing severe economic difficulties when having him agree to the joint venture’s terms). '45 Compl., Exh. 1. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 clause, the policy of which Bluewater speaks takes shape in personal jurisdiction and venue statutes and case law. However, as Bremen made clear and Carnival confirmed, the U.S. Supreme Court—and the Virgin Islands, by invoking the forum selection clause test it has developed—has adopted a new policy, which chooses to allow forum selection clauses to override personal jurisdiction and venue selection rules and statutes in appropriate circumstances. 445. Third, Bluewater argues that Florida is so seriously inconvenient that requiring litigation there would be unreasonable because Bluewater’s and CBI’s records and documents are located outside of Florida; because Florida is 1,300 miles from the Virgin Islands, making travel and transport difficult for witnesses and documents; because Florida’s courts lack subpoena power over Virgin Islands residents; and because the witnesses will incur costs for airfare, hotels accommodations, and lost wages in attending trial in Florida.'*° Bluewater also points to Beedle, one of the Virgin Islands forum selection clause cases mentioned above, and asserts its inconvenience analysis under the fourth prong tumed on similar circumstances.'*” However, as CBI and BABS correctly state, that portion of Beedle was dicta and did not control the judge’s finding that the forum selection clause was unenforceable because the clause did not extend to cover a negligence action.'* (46. Further, “the fact that a foreign forum poses some inconvenience does not prevent enforcement of a forum selection clause.”'*? When “the inconvenience of the forum was foreseeable at the time of contracting, the party seeking to invalidate the forum selection clause must show that the forum will be so inconvenient and prohibitive as to deprive that party of its ‘meaningful day in court.’”!°° “While financial ability is one basis upon which a party can assert that a forum selection clause is unenforceable, cases where courts have found the burden met involved a much greater hardship . . . and did not involve only a financial hardship.”!*' For example, in Walker v. Carnival Cruise Lines,'*? the court found a forum selection clause unenforceable owing to travel hardships coupled with financial hardship, where the plaintiffs were disabled quadriplegics; airlines did not have the facilities to transport the disabled plaintiffs; plaintiffs had bowel and bladder incontinence due to their disability, further complicating travel; and plaintiffs experienced comparatively more severe economic constrictions also due to the '6 P].’s Opp. to Def.s’ Mot. Dismiss, 8. '47 Beedle, 2017 WL 5665413, at *3. 148 Fd. at *2. ‘9 Pacific Health Advantage, 2007 U.S. Dist. LEXIS at *5. 150 Id. at *5. 151 Id. at *6. 152 107 F.Supp. 2d 1135, 1140-45 (N.D. Cal. 2000). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 disability.'®* In addition, federal district courts from the Fourth,'™ Fifth,'® Eighth,’ Ninth,'*’ Tenth,'** and Eleventh'® Circuits have found forum selection clauses enforceable where witnesses’ inabilities to travel to a named forum to testify did not meet the standard for depriving a party of its day in court because the lack of live witness testimony could be cured by written and video depositions. Similarly here, witnesses’ testimonies may be feasibly presented in Florida in the form of written and video depositions. 947. Under the Bremen-Carnival analysis, Bluewater has not met its burden of showing that the forum selection clause should be invalidated and is unenforceable. 153 fg '5* Compare Hipage Co. v. Access2Go, Inc., 589 F.Supp.2d 602, 612-13 (E.D. Va. 2008) (finding that the “expense of transporting witnesses is not sufficient to preclude enforcement of a forum selection clause” and “[nJo matter which forum is selected, one side or the other will be burdened with bringing themselves and their witnesses from far away” and enforcing the forum selection clause because the plaintiff was a “sophisticated business that signed an agreement, which designates Illinois as the exclusive forum”) to Tokio Marine & Fire Insurance Co. v. M/V Turquoise, Case No. 2:00-0379-18, 2001 U.S. Dist. LEXIS 14689, at *8-*9 (D. S.C. Apr. 24, 2001) (finding that a resisting party would not receive their fair day in court upon enforcing a forum selection clause because the forum selection clause specified Korea as the forum and Korean jurisprudence does not enforce in rem actions against ships). '%5 Automobile Consultants Division, Progressive Marketing Group v. Farls, Case No. CA 3:02-CV-171-R, 2003 U.S. Dist. LEXTS 4729 (N.D. Tex. Mar. 26, 2003) (finding that a Pennsylvania citizen resisting a forum selection clause was not being deprived of his day in court under an inconvenient forum analysis just because “most, if not all of the evidence and material witnesses, are located in Pennsylvania” and because the rules of civil procedure allow parties to secure the testimony of parties and witnesses without having to call them as live testimony witnesses). '86 SunWorld Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 (8th Cir. 1986) (finding that the hardship of litigating in Germany would be overcome by using depositions of key witnesses and this use of deposition testimony could translate to a fair day in court). ''7 See Pacific Health Advantage, 2007 U.S. Dist. LEXIS, at 1140-43 (finding that “requiring all potential witnesses and parties to travel to New York from California, when the only relationship this case has with New York is” that New York is the defendant’s principle place of business, demonstrates that New York is not an inconvenient forum just because the plaintiff is an inactive California corporation that lacks the funds to transport every potential witness to New York). '%8 Kepas v. eBay, 412 Fed.Appx. 40, 48-49 (10th Cir. 2010) (finding that taking depositions of Utah-based witnesses for a California suit would cure any hardship incurred to pay witnesses’ travel costs and would overcome the fact that California’s subpoena power did not extend beyond that jurisdiction’s borders and finding that the resisting party failed to show how taking depositions, as opposed to presenting live testimony, precluded him from asserting his claims in California). '99 McNair v. Monsanto Co., 279 F.Supp.2d 1290, 1301-02 (M.D. Ga. 2003) (finding that the resisting party would not be deprived of its day in court when having to use deposition testimony over live witness testimony, a solution which was simultaneously deemed, in certain situations, to be more cost effective); Van Zyl v. Aviatour, Inc., Case No. 8:09-cv-151-T-23TGW, 2009 U.S. Dist. LEXIS 63390, at *12-*14 (M.D. Fla. July 9, 2009) (finding that it did not matter that all witnesses that would be called to testify were outside the forum state and most depositions and discovery work would occur outside the forum state because the resisting party would still get its fair day in court and these circumstances were foreseeable at the time of contracting). Bluewater Construction, Inc. v, CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 VL. Super. 70 Memorandum Opinion, May 20, 2019 V. Under the forum non conveniens factor test, which the U.S. Supreme Court has expressly advocated as “the appropriate way to enforce a forum selection clause pointing to [another] state or foreign forum,” Bluewater’s forum selection clause remains enforceable. (48. Since the U.S. Supreme Court decided Bremen, forum selection clause jurisprudence has continued to evolve. Two additional decisions have created an alternate path of analysis to that provided by the Bremen-Carnival line of inquiry. The first decision, Stewart Organization, Inc. v. Ricoh Corp.,' specifically held that federal change of venue statutes, namely 28 U.S.C. § 1404,'*' control a court’s decision to give effect to a forum selection clause in federal suits brought in diversity. Though its holding addressed federal courts, Stewart clearly established “a wholly separate doctrinal line of inquiry’! from the Bremen-Carnival approach. More specifically, Stewart established that, when weighing forum selection clauses, courts should “take account of factors other than those that bear solely on the parties’ private ordering of their affairs. . . . [making it] conceivable in a particular case, for example, that because of these factors . . . [a court] would refuse to transfer a case notwithstanding the counterweight of a forum selection clause. .. .”'®? Other jurisdictions, including the Virgin Islands,'“ have found that Stewart “confirms the existence of a peppercorn of judicial discretion to decline to enforce a forum selection clause.”'®° 149. | While the second decision, Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of Texas,'®° like Stewart, ruled on two precise issues that do not directly address Virgin Island forum selection clause jurisprudence, its holding’s logic has implications regarding how forum selection clauses are assessed in the Territory. Specifically, the At/antic court held that, when a federal court determines whether to enforce a forum selection clause under § 1404(a), “a proper application of [the rule] requires that a forum selection clause be given controlling weight in all but the most exceptional cases.”'®” While its specific holding addressed a factual scenario centered on § 1404(a)’s application, the parties briefed whether § 1404(a) was “‘a suitable mechanism to enforce forum selection clauses because that provision cannot provide for transfer when a forum selection clause specifies a state or foreign 160 487 U.S. 22 (1988). '*! Section 1404 Title 28 of the U.S, Code controls a federal court’s decision to transfer a lawsuit, initially filed in one federal venue, to another federal venue. See 28 U.S.C. § 1404. ‘2 14D Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 3803 (4th ed. 2019). 163 Stewart, 487 U.S. at 30-31. ‘4 Philo, 2017 WL at *3 (noting that Stewart’s analysis gave courts “broader discretion to refuse to enforce a valid forum selection clause than... Bremen”). '85 Walker, 107 F.Supp. at 1040. '66 571 U.S. 49 (2013). '67 Id. 571 U.S. at 59-60 (quoting Stewart, 487 U.S. at 33). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 tribunal.”'® Based on this, the Atlantic court also indicated that, because a forum selection clause does not render an otherwise proper venue improper, “the appropriate way to enforce a forum selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens,” not Federal Rule of Civil Procedure 12(b)(3). When explaining its reasoning, the court emphasized that § 1404(a) “derives” from the common law doctrine of forum non conveniens and that both analyses “entail the same balancing of interests standard.”'” After designating § 1404(a) and forum non conveniens as the appropriate modes of analyses to control forum selection clause enforcement, the Atlantic court indicated how a forum selection clause impacts a court’s balancing of public and private factors when determining whether it should be enforced. 450. Indeed, the Virgin Islands has its own venue transfer statutes.'’' They bear no functional resemblance to § 1404(a) in that they cannot enable transfer to another state’s tribunals. Second, U.S. Supreme Court rulings are not always binding on Territorial courts,'”? and even if they were, Atlantic’s holding addresses the application of a federal statute. Nonetheless, the present Virgin Islands forum selection clause test, which has developed through Virgin Islands case law, relies upon U.S. Supreme 168 Td. at 60. 169 J : '70 fd. at 61. Further, the Atlantic court responded to an amicus curiae brief advocating that Rule of Civil Procedure 12(b)(6) should be one of the procedural mechanisms used to enforce forum selection clauses. /d. When doing so, the Court specified that (1) because the parties did not brief whether Rule 12(b)(6) would be an appropriate mechanism to enforce forum selection clauses, it would not consider the question and (2) Rule of Civil Procedure 12(b)(3) and § 1406 are not the proper mechanisms but § 1404(a) and forum non conveniens are the proper vehicles for forum selection clause enforcement in federal courts sitting in diversity. Jd. '! See 5 V.I.C. § 4905 (“When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.”); 4 V.1LC. § 78 (“(a) All civil actions shall be initiated in the judicial division where the defendant resides or where the cause of action arose or where the defendant may be served with process. Criminal actions shall be brought in the judicial division in which the alleged criminal offense was committed. Actions of criminal conspiracy may be brought in either division in which any of the alleged overt acts were committed. (b) For the convenience of parties and witnesses and in the interest of justice, a judge of the Superior Court may, with the approval of the presiding judge of such court, transfer any action or proceeding pending in one judicial division to the other judicial division for hearing and determination.”); and 4 V.1.C. § 77 (“(a) Unless transferred by a judge of the district court, all civil cases originally filed in the Superior Court shall be tried and concluded in that court. (b) A judge of the district court may, in the interest of justice, cause a case or cases pending in the Superior Court to be transferred to the district court and may transfer cases pending in the district court to the Superior Court provided that such transferred case is within the jurisdictional competence of the court to which the transfer is made.”). 12 Antilles School, Inc. v. Lembach, 64 V.1. 400, 418 (V.I. 2016) (holding that the Virgin Islands Superior Court “is not bound to mechanically follow every precedent from the United States Supreme Court. Clearly, state and territorial courts must follow, as binding precedent, decisions of the United States Supreme Court that interpret the United States Constitution, federal statutes, and federal treaties. As explained . . . Congress through the Revised Organic Act of 1954, provided that ‘the rules governing the practice and procedure of the courts established by local law .. . shall be governed by local law or the rules promulgated by those courts.” Consequently, ‘any authority the federal rules have over territorial courts is a function of territorial law,’ not federal law.”). Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 Court precedent. Whereas Stewart could only be interpreted as creating a modicum more flexibility in the forum selection clause analysis,'” Atlantic directly implicates the doctrine of forum non conveniens and directly states it is the appropriate method through which to determine forum selectidn clause enforceability. Until the Virgin Islands Supreme Court considers this issue or the Virgin Islands Legislature enacts a statute prescribing which instrument to use, it behooves this Court to engage in a forum non conveniens analysis. A. Forum non Conveniens under 5 V.1.C. § 4905 and Atlantic 451. Under 5 V.LC. § 4905, when Virgin Islands courts “‘find[] that in the interests of substantial justice, the action should be heard in another forum, [they] may stay or dismiss the action in whole or in part on any conditions that may be just.”'” In the Virgin Islands, the standard enables this Court in the exercise of its sound discretion, [to] dismiss a case when an alternate forum has jurisdiction to hear the case, and when trial in the chosen forum would establish . . . oppressiveness and vexation to the defendant . . . out of all proportion to plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems.”!”5 952. This determination occurs in three steps. First, the Court “determine[s] whether there is an adequate alternate forum.”'”° Second, the Court “determine(s] the appropriate level of deference to give the plaintiffs choice of forum.”'” Third, the Court “balance[s} the relevant public and private interest factors.”'”® Ordinarily, when conducting this analysis, the Court weighs a “range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.”'”” 953. Under Ailantic, the “calculus changes . . . when the parties’ contract contains a valid forum selection clause”! for two reasons. First, “enforcement of valid forum selection clauses, bargained for by the parties protects their legitimate expectations and furthers vital interests of the justice system.'*! 173 See Philo, 2017 WL at *3 (noting that Stewart differed from Bremen by giving courts relatively broader discretion to refuse to enforce forum selection clauses) 174 5 VLC. § 4905. 195 Epstein v. Fancelli Paneling, Inc., 55 V.1. 150, 167 (V.L. 2011). 196 Trotter v. TR Holdings, LLC, 68 V.1. 715, 720 (D. V.I. 2016). 177 179 fd. The Atlantic court states that a § 1404(a) and a forum non conveniens analysis in federal courts similarly “evaluate both the convenience of the parties and various public-interest considerations.” Af/antic, 571 U.S. at 62. 180 7d. at 63. 181 Ig. Bluewater Construction, Inc. v, CBI Acquisitions, LLC and Bay Area Building Solutions, Ine Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 Second, because the parties expect to litigate in the named forum and because the overarching thrust of a forum non conveniens analysis remains “whether a transfer would promote ‘the interests of justice,’ a valid forum selection clause should be given controlling weight in all but the most exceptional cases.””"® 954. | Accordingly, the Court calibrates its forum non conveniens analysis in two ways.'® First, a “plaintiff's choice of forum merits no weight.”'** In short, the Court interprets a plaintiff's agreement to bring suit in a certain forum via a forum selection clause as the plaintiff exercising his “‘venue privilege’ before a dispute arises.”'®° Following that logic, only the plaintiff's initial choice of forum under the forum selection clause merits deference under the new, altered analysis. In addition, the plaintiff bears “the burden of showing why the court should not transfer the case to the forum to which the parties agreed,”!86 155. Second, the Court will “not consider arguments about the parties’ private interests [because]... the . . . private interest factors... weigh entirely in favor of the preselected forum.”'®’ Because the parties agreed ahead of litigation, they also are deemed to have “waive{d] the right to challenge the preselected forum as inconvenient or less convenient”'** because litigation concerning the agreed-to forum was “clearly foreseeable at the time of contracting.”'® In alignment with this adjustment, the Court “may consider arguments about public interest factors only.”'” Since “those factors will rarely defeat a [forum non conveniens] motion, the practical result is that the forum selection clause should control except in exceptional cases.”!9! B. Florida is an appropriate forum. 756. First, the Court is charged with determining whether an adequate alternative forum exists. Under circumstances in which a forum selection clause does not hold sway, “the requirement of an adequate alternative forum is generally satisfied when the defendant is amenable to process in another 182 Id. '®> The Court notes that At/antic’s analysis centers on an altered version of § 1404(a)’s mode of analysis. The Atlantic Court made three modifications when applying § 1404(a)’s rubric to instances with forum selection clauses. Two of the changes are discussed above. The third alteration establishes that “‘a § 1404(a) transfer of venue will not carry with it the original venue’s choice of law rules,” and is an alteration that will only come into play in federal courts. /d. at 64. 184 Td. at 63. 185 Id. 186 Id. at 64. 187 ld. 188 id. '89 Td. (quoting Bremen, 407 U.S. at 17-18). 190 Atlantic, 571 U.S at 64. 191 Fg Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 jurisdiction.”'” On the other hand, a “forum may be deemed an inadequate alternative under those rare circumstances . . . where the remedy offered by the other forum is clearly unsatisfactory.”'®? For instance, the Court may decide that a forum is inadequate “where the alternative forum does not permit litigation of the subject matter of the dispute or where a plaintiff cannot access evidence essential to prove a claim.”"™ Bluewater agreed to reserve both personal jurisdiction and venue for Hillsborough County, Florida. Thus, Bluewater is “amenable to process” for Florida tribunals. In addition, recent Florida Courts of Appeals decisions! indicate that the elements which must be proven when bringing a breach of contract claim in Florida echo the elements required by Virgin Islands courts.'© Proof of performance and documentary evidence supporting the claim may be brought in the form of deposition testimony and documents that indicate that a contract was executed and partially performed. Photographic evidence may be brought to further illustrate Bluewater’s performance. Financial records may be used to prove Bluewater never received payment for its partial performance. Under these circumstances, Bluewater is not hindered from bring a breach of contract claim in Florida and is able to produce evidence showing this breach. Therefore, Florida is an adequate alternative forum. C. Bluewater’s choice to file suit in the Virgin Islands merits no weight under Ad/antic since Bluewater contractually agreed to bring suit in Florida. 457. | Because Bluewater agreed in the Subcontract’s forum selection clause to litigate in Hillsborough County, Florida, that venue is accorded deference because, in entering into a valid forum selection clause, Bluewater exercised its plaintiff's venue privilege at that time, prior to filing its Complaint with this Court. 12 Petra Systems, Inc. v. Everest National Insurance Co., Case No. ST-18-CV-615, 2019 V.I. SUPER 56, at *12 (V.I. Super. Ct. Apr. 16, 2019). 3 Trotter, 68 V.I. at 721. 194 Id. '5 See National Collegiate Student Loan Trust 2006-4 v. Meyer, 265 So.3d 715, 719 (Fla. 2d DCA 2019); DNA Sports Performance Lab, Inc. v. Club Atlantis Condominium Association, Inc., 219 So.3d 107, 109 (Fla. 3d DCA 2017); and Havens v. Coast Florida, P.A., 117 So.3d 1179, 1181 (Fla. 2d DCA 2013). In Florida, Bluewater must prove (1) a valid contract existed; (2) a material breach of the contract occurred; and (3) damages resulted from the contractual breach. 198 See Chapman v. Cornwall, 58 V.1. 431, 437 (V.I. 2013). In the Virgin Islands, Bluewater must prove (1) a valid contract existed; (2) a duty was created by that contract and the duty was breached; and (3) the plaintiff suffered damages as a result. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 D. Without giving consideration to the private interest factors, as directed by Atlantic, the balancing of public interest factors counsels this Court to dismiss Bluewater’s breach of contract claims. $58. Normally, the Court balances “the relevant public and private interest factors” to determine if the result “indicates that trial in the chosen forum would result in oppression or vexation to the defendant out of all proportion to the plaintiff's convenience.”"*” However, under Atlantic, the Court may not consider the private interest factors.'"* Accordingly, Bluewater’s arguments addressing the inconvenience of producing witnesses for live testimony in Florida, of transporting records and documentary evidence to Florida, of not being able to view the construction site on St. John, and of lacking compulsory process from Florida tribunals cannot be considered because these inconveniences were foreseeable at the time of contracting. 59. Turning now to the public interest factors, ordinarily the Court balances the Gilbert factors which can include: the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial . . . in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.!” 60. The first factor concerns “the administrative difficulties flowing from court congestion.” None of the parties actively argues that this factor is relevant. While the Court is often presented with new litigation, “its calendar is not so congested that it cannot handle another case.”2° On the other hand, the Court lacks information regarding the extent to which Florida courts are congested. Unable to make a comparison, the Court deems this factor’s impact neutral. 61. |The second factor centers on the “local interest in having localized controversies decided at home.” Bluewater argues that a public policy supports having a home forum to host and resolve local disputes. Although CBI and BABS do not address this factor, the Court disagrees. Only when certain issues are at stake does the Virgin Islands have an interest in or a “relationship to the actual dispute 197 Trotter, 68 V.I. at 724. '8 When considering private interest factors in the Virgin Islands, the following Gilbert factors are identified and weighed: “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view[ing] . . . (the] premises, if view[ing] would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Trotter, 68 V.I. at 724-25. 199 Id. at 725, 200 Epstein, 55 V.I. at 168. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 between the parties.”""' For instance, with regard to a breach of contract and bad faith breach of insurance contract suit, in Petra v. Systems, Inc. v. Everest National Insurance Co.,2” another judge on this Court found that the Virgin Islands community did “have a relation to the litigation” because (1) the events giving rise to the action arose in the Virgin Islands and (2) the people of the Virgin Islands had “an interest in ensuring that infrastructure projects (the subject of the insurance policy which was allegedly breached], which are to provide lighting to their streets, are completed in a timely manner,”2% Importantly, in Petra, the subject matter of the contract was the construction of street lighting across all of the Virgin Islands—a project from which the public derived important health and safety benefits and in which one of the parties implicated was an instrumentality of the Government of the Virgin Islands, namely WAPA.™ In contrast, the subject matter of this contract is the reconstruction of a privately owned resort on St. John that closed for repairs prior to Hurricanes Irma and Maria in 2017. The Court notes that press coverage of this construction project has ensued, possibly indicating the public’s interest in hearing and resolving this matter. However, in short, this is a contract dispute among three private parties—only one of which, Bluewater, is “at home” in the Virgin Islands. As indicated by counsel, CBI is a Massachusetts business organization that houses it financial management and recordkeeping entities in Massachusetts,*™ and, as indicated by counsel, BABS is a Florida business organization that stores its books and records in Florida. The construction project at issue does not implicate public works and infrastructure upon which the public relies, like street lights. Instead, Caneel Bay is a privately owned resort. Perhaps Caneel Bay Resort implicates a relation to the Virgin Islands with regard to the possible jobs it could provide upon reopening. But, the contract does not contain a promise to transfer the resort into a going concern that will employ Virgin Islands citizens; it merely contains a promise to complete a construction project, the reconstruction of 18 hotel rooms,” in return for payment. Upon closer inspection, this factor counsels in favor of resolving a contractual dispute in accordance with the contract and its freely-negotiated forum selection clause, and, thus, in favor of dismissal of the breach of contract claims. 62. The third and fourth factors concern the interest of having a trial conducted “in a forum that is at home with the law that must govern the action” and of avoiding having to conduct lengthy choice of law 20! Petra Systems, Inc., 2019 V.I. SUPER at *35. 202 Case No. ST-18-CV-615, 2019 V.I. SUPER 56 (V.I. Super. Ct. Apr. 16, 2019). 203 Id. at *35, 204 Id. at *3. 5 Def.s’ Reply to Pl.’s Opp. to Def.s’ Motion Dismiss, 7. 206 Id. 207 Compl., Exh. 1. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.1. Super. 70 Memorandum Opinion, May 20, 2019 analyses. Since the parties agreed that Florida law controls contract interpretation, Florida will be the “forum that is at home with the law that must govern the action.” These factors favor dismissal of Bluewater’s breach of contract suit. 63. The fifth factor concerns “the unfairness of burdening citizens in an unrelated forum with jury duty.” While it appears fair to burden Virgin Islands citizens with jury duty with regard to one of its co- resident’s resolution of a breach of contract claim, the same also holds true for Florida citizens called for jury duty in Hillsborough County. Thus, this factor’s effect is also neutral. Conclusion 464. Bluewater, who contracted with CBI and BABS to complete a reconstruction of 18 hotel rooms within Caneel Bay Resort on St. John, properly brought breach of contract actions against those entities under the venue statutes of the Virgin Islands. However, its contract with these entities included a forum selection clause specifying Florida as the mandatory forum for litigation and a choice of law clause providing Florida law governed the contract’s interpretation. Under the traditional test utilized in the Virgin Islands to determine forum selection clause enforceability, the clause is mandatory, covers the contractual breach claims, and was reasonably communicated to Bluewater in accordance with the parties’ contractually specified choice of governing law. Ultimately, under the fourth prong of the forum selection clause test, Bluewater did not meet its burden showing the Court that its forum selection clause is unenforceable. 465. Due to the Territory’s distinctive interplay with U.S. Supreme Court jurisprudence, and mindful of the fourth prong’s derivation from earlier U.S. Supreme Court precedent, the Court also applied an alternative mode of analysis in an effort to avoid prejudicial error. Under the Atlantic-forum non conveniens approach, two public interest factors, court congestion and the fairness of burdening either Virgin Islands or Florida residents with jury duty to hear and resolve this matter, do not favor one forum over the other. The remaining three public interest factors, the community’s relation to the dispute, having a forum at home with the suit’s applicable law, and avoiding having to conduct a lengthy conflict of laws analysis, weigh in favor of enforcing the forum selection clause. This conclusion is strengthened by the Atlantic court’s admonition that: “[o]nly under extraordinary circumstances unrelated to the convenience of the parties should a [forum non conveniens] motion be denied.”* 208 4tlantic, 571 U.S. at 62. Bluewater Construction, Inc. v. CBI Acquisitions, LLC and Bay Area Building Solutions, Inc. Case No. ST-18-CV-434 V.I. Super. 70 Memorandum Opinion, May 20, 2019 466. Accordingly, this action will be dismissed. An Order consistent with this Opinion shall issue. —_—— — Dated: May 20, 2019 ba a —_ -# HON. MICHAEL C. DUNSTON ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT Cle Court OF THE VIRGIN ISLANDS by Loji Boynes-Tyéon urt Clerk Supervisor 5 2-0!