Hazen v. Resort Condo Intern'l CV-95-251 01/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George Hazen Elizabeth Hazen

v. Civil No. 95-251-JD

Resort Condominium International, Inc., et al.

O R D E R

The plaintiffs, George and Elizabeth Hazen, have brought

this action against a variety of defendants to recover for

injuries sustained by George Hazen during a 1994 vacation to

Cancun, Mexico. Before the court are the motion to dimiss of the

defendant Trans National Travel/The Haley Corporation ("TNT")

(document no. 5); the defendant Liberty Travel, Inc.'s

("Liberty") motion for summary judgment (document no. 26);

plaintiffs' motion for enlargement of time under Rule 56(f)

(document no. 28); the plaintiffs' motion to compel TNT to

respond to outstanding discovery reguests (document no. 27); and

TNT's motion to stay substantive discovery against it pending

resolution of its motion to dismiss (document no. 32). I. TNT'S MOTION TO DISMISS

Background

A. The Vacation

The Hazens reside in Manchester, New Hampshire. In February

1994, George Hazen visited Liberty's Burlington, Massachusetts,

office to inguire about vacation packages to Mexico. During this

visit Staci Limoli, a Liberty travel agent, recommended a TNT

package trip that included accommodations at the defendant Royal

Solaris Caribe Hotel and Marina ("Royal Solaris"), a resort

located in Cancun, Mexico. Although Limoli described the

vacation to George Hazen, she could not provide him with any

written literature "[b]ecause Liberty had run out of TNT

brochures on the Caribbean." Plaintiffs' Memorandum in

Opposition to Motion to Dismiss at 3.

On February 21, 1994, Mr. Hazen returned to Liberty's

office, this time accompanied by his wife, Elizabeth. The

plaintiffs discussed the TNT vacation with Limoli. Elizabeth

Hazen has testified that

[Limoli] told us about the facilities and features of the Royal Solaris. She described it as an all inclusive five or six star hotel with excellent facilities. Ms. Limoli still did not have any TNT brochures available describing the vacation packages to Cancun or the Royal Solaris.

Nonetheless, Cancun and the Royal Solaris sounded great so that same day we booked the TNT vacation package and accommodations at the Royal Solaris. We

2 paid three hundred dollars ($300.00) towards the total cost of the trip. When we paid the money, no one from TNT or Liberty mentioned the Tour Participant Contract or anything about a forum selection provision. We did not see any TNT documents until after we booked the trip. We never signed any TNT documents.

Affidavit of Elizabeth Hazen at $[$[ 4-5; see Affidavit of George

Hazen at 5 4 ("[A]t the travel agent's instruction, I paid three

hundred dollars ($300.00) towards the trip. I never received any

documents from TNT when I booked the trip. At the time we booked

the trip, no one mentioned the Tour Participation Contract or

that disputes with TNT had to be resolved in Massachusetts.").

At some point after they booked their TNT trip with Liberty,

the plaintiffs received from another travel agent a TNT Brochure

entitled "Caribbean Sunshine Guide: including Mexico, Bahamas,

and Bermuda" ("TNT Brochure"). The brochure "affirmed,

reinforced and expanded" on Limoli's description of the Royal

Solaris. Plaintiffs' Memorandum in Opposition to Motion to

Dismiss at 4. "The Plaintiffs never focussed on or read the fine

print of the Contract because they had already paid their deposit

towards the trip and as far as they were concerned, they did not

need to do anything further to secure places on the trip." Id.

(citing George Hazen Affidavit at I 6, Elizabeth Hazen Affidavit

at 5 6) .

On March 15, 1994, George Hazen returned to Liberty to

inguire about cancelling their vacation. He was told by an

3 unnamed travel agent that cancellation would result in the

forfeiture of the deposit. "Because he did not want to lose this

money, Mr. Hazen paid the remaining amounts owed on the vacation

package." Plaintiffs' Memorandum in Opposition to Motion to

Dismiss at 5.

On April 23, 1994, the plaintiffs flew to Cancun, Mexico,

and checked into the Royal Solaris. On April 25, 1994, George

Hazen sustained personal injury when he slipped on the edge of an

outdoor jacuzzi located at the resort. The plaintiffs filed this

action in April 1995, in New Hampshire state court. On May 11,

1995, TNT removed this action to federal court alleging the com­

plete diversity of the parties,

(a) (1) , (c) (1) .

B. The Small Print

The TNT Brochure contained a page entitled, in larger-than-

standard print, "1993 TNT/HALEY TOUR PARTICIPATION CONTRACT."1

Beneath this title in smaller-than-standard print, a variety of

terms appear, arranged in two columns. The small print begins:

1The court notes that the "1993 Tour Participation Contract" is printed in the TNT's 1994 Caribbean Sunshine Guide, which the plaintiffs have appended as an exhibit to their opposition to the instant motion. Despite the apparent mislabeling of the year, TNT does dispute that the contract labeled 1993 is the one relevant to the instant dispute because TNT's 1995 brochure was not printed until after the plaintiffs had purchased their vacation and completed travel to Mexico. See TNT's Memorandum in Support of Motion to Dismiss at n. 2, exhibit A.

4 This agreement contains the terms and conditions by which Trans National Travel/The Haley Corporation, in consideration for Participant's payment, agrees to provide these travel arrangements. READ THIS AGREEMENT CAREFULLY BEFORE SENDING ANY MONEY!! RESPONSIBILITY AND LIABILITY: Trans National Travel/The Haley Corporation ("Operator"), The Trans National Building, 2 Charlesgate West, Boston, MA 02215-3552, is responsible to its passengers as outlined below. Operator, as the principal on charter flights, is responsible for arranging and providing all services and accommodations offered in connection with these trips.

TNT Brochure at 26, left col. The following appears in the

middle of the left column:

RESERVATIONS AND PAYMENT: A deposit of $150 per Participant and a signed Tour Participant Contract is reguired to secure reservations.

TNT Brochure at 26, left col. The following provision appears

two-thirds down the right column:

INSURANCE: TRIP CANCELLATION, HEALTH, ACCIDENT AND BAGGAGE INSURANCE IS AVAILABLE AND STRONGLY RECOMMENDED FORUM [sic] FOR DISPUTES: Participant (s) and Operator agree to resolve any dispute only in a court of competent jurisdiction in Massachusetts, under Massachusetts Law.

, right col.

Discussion

A. Procedural Posture

As an initial matter, the court must address the procedural

posture of the defendant's motion. TNT seeks dismissal under

Rule 12(b)(6), which is a proper vehicle for dismissals based on

a forum selection clause. E.g., Lambert v. Kvsar,

,

5 112, n. 1 (1st Cir. 1993) (citing LFC Lessors, Inc. v. Pacific

Sewer Maintenance Corp.,

(1st Cir. 1984)). In some

instances the court may, on its own initiative, treat a motion to

dismiss as one for summary judgment, particularly where

matters outside the pleadings are submitted and not excluded by

the court. Burgess v. University of New Hampshire, No. 94-338-

JD, slip op. at 12-13 (D.N.H. March 28, 1995), aff'd . No. 95-

1539,

(1st Cir. 1995) (per curiam); IB James W.

Moore, et al., Moore's Federal Practice 5 0.408 [1] (2d ed. 1994).

The court's authority to covert a motion to dismiss into a motion

for summary judgment comes directly from Rule 12. Burgess, slip

op. at 12-13 (citing Levesgue v. Miles, Inc.,

(D.N.H. 1993); Fed. R. Civ. P. 12(b)).

"A motion to dismiss is not automatically transformed into a

motion for summary judgment simply because matters outside the

pleadings are filed with . . . the district court." Garita

Hotel, Ltd. v. Ponce Federal Bank,

(1st Cir.

1992). The test for converting a motion to dismiss to a summary

judgment is "not whether supplementary materials were filed, but

whether the court actually took cognizance of them, or invoked

Rule 56, in arriving at its decision."

. When the

court converts a Rule 12(b)(6) motion into a motion for summary

judgment, it must give all parties "reasonable opportunity to

6 present all material made pertinent to such a motion by Rule 56."

Fed. R. Civ. P. 12(b). However,

[the First] Circuit does not mechanically enforce the requirement of express notice of a district court's intention to convert a Rule 12(b) (6) motion into a motion for summary judgment. Instead, we treat "any error in failing to give express notice as harmless when the opponent has received the affidavit and materials, has had an opportunity to respond to them, and has not controverted their accuracy."

Chaoarro-Febus v. International Longshoremen Ass'n,

(1st Cir. 1992) (quoting Moody v. Town of Weymouth,

(1st Cir. 1986) ) .

Both parties have submitted extensive materials outside the

pleadings in support of their respective positions on the

applicability of the forum selection clause. These include

affidavits, admissions obtained through discovery, exhibits, and

other materials properly considered under Rule 56(c) . The

submission of these materials manifests the parties'

understanding that they are permitted to address the forum

selection clause issue with legal argument and supporting

materials beyond the pleadings. Thus, there is no need

to give express notice of the court's intention to convert to a

motion for summary judgment. See Chaparro-Febus,

(trial court properly converted motion to dismiss to motion for

summary judgment where plaintiff responded to motion as if it

were filed under Rule 56); Burgess, slip op. at 14 (same). The

7 court converts the defendants' motion to dismiss into a motion

for summary judgment under Rule 56.

Summary judgment is appropriate when the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). "The burden is on the moving party to establish the lack

of a genuine, material factual issue, and the court must view the

record in the light most favorable to the nonmovant, according

the nonmovant all beneficial inferences discernable from the

evidence." Snow v. Harnischfeger Corp.,

(1st

Cir. 1993) (citations omitted). Once the moving party has met

its burden, the nonmoving party "must set forth specific facts

showing that there is a genuine issue for trial," Anderson v.

Liberty Lobby, Inc.,

(1986) (citing Fed. R.

Civ. P. 56 (e)), or suffer the "swing of the summary judgment

scythe," Sardines Bacata, Ltd. v. Diaz-Marguez,

(1st Cir. 1989). "In this context, 'genuine' means that the

evidence about the fact is such that a reasonable jury could

resolve the point in favor of the nonmoving party, Anderson,

; 'material' means that the fact is one 'that might

affect the outcome of the suit under the governing law.1" United States v. One Parcel of Real Property,

(1st

Cir. 1992) (quoting Anderson,

) .

In its motion, TNT asserts that "the forum-selection clause

in the contract between the parties requires that actions against

TNT be brought only in Massachusetts, and that therefore this New

Hampshire action should be dismissed for failure to state a claim

upon which relief would be granted." TNT's Memorandum in Support

of Motion to Dismiss at 1. The plaintiffs respond that the forum

selection clause was never part of an agreement with TNT and, as

such, does not govern this action. See Plaintiffs' Memorandum in

Opposition to Motion to Dismiss at 1. The plaintiffs further

argue that TNT's conduct, including the failure to communicate

the terms of the contract, constitutes a waiver of the forum

selection clause. See

B. Forum Selection Clauses are Presumptively Valid

"Under federal common law, it is well-settled that parties

to a contract may agree in advance to submit to the jurisdiction

of a given court." R.W. Granger & Sons, Inc. v. Roiac Company,

Inc.,

(D. Mass. 1995) (citing National

Equipment Rental, Ltd. v. Szukhent,

(1964); The

Bremen v. Zapata Off-Shore Co.,

(1964)). Federal

courts enforce forum selection clauses "unless the objecting party can 'clearly show that enforcement would be unreasonable

and unjust, or that the clause was invalid for such reasons as

fraud or overreaching.'"

(quoting The Bremen,

); see Boulanger v. Fleet Bank, No. 94-036-L, slip op. at 4

(D.N.H. June 19, 1994). The state law of both New Hampshire and

Massachusetts also treats forum selection clauses as

presumptively valid and enforceable absent a showing that

enforcement would be unreasonable. See, e.g., Goulet v. Water

Resources Int'l, No. 92-37-L, slip op. at 6-7 (D.N.H. April 8,

1992) (citing Uniform Model Choice of Forum Act, N.H. Rev. Stat.

Ann. ("RSA") § 508-A:3 (1983)); Jacobson v. Mailboxes Etc.

U.S.A., Inc.,

,

, 743 (1995)

(citing federal case law and Restatement (Second) of Conflict of

Laws § 80 (1988)). Because New Hampshire and Massachusetts state

law and the federal common law are essentially uniform with

respect to the enforceability of forum selection clauses, the

court "need confront neither the choice-of-law issue nor the

daunting question whether forum selection clauses are to be

treated as substantive or procedural for Erie purposes." See

R.W. Granger,

(quoting Lambert v. Kvsar,

(1st Cir. 1993)). The court finds that the forum

selection clause is presumptively valid provided the clause is

found to have been part of a binding contract between the

parties.

10 C. The Pivotal Question

TNT, relying on numerous federal cases involving cruise ship

liability, argues that the forum selection clause was a part of

its contract with the plaintiffs and, as such, is valid and

enforceable. See generally TNT's Memorandum and Reply Memorandum

in Support of Motion to Dismiss. The plaintiffs argue that,

under the facts of this case, there was no valid forum selection

provision included in whatever contract or agreement they may

have entered into with TNT. Thus, the pivotal guestion is

whether the forum selection clause at issue was ever part of a

binding contract between the parties. See Lambert,

(when determining whether to enforce forum selection

clause. First Circuit first addresses whether clause was part of

the contract). If the clause was a contractual term, it is

presumptively valid and the burden would shift to the plaintiffs

to establish that enforcement would unreasonable. If it was not

a term, the presumption of enforceability is plainly irrelevant

as there would be no provision to enforce.

The court must resolve an apparent dispute over which body

of substantive law governs this central guestion. TNT has cited

an abundance of federal authority for the proposition that,

absent unusual circumstances, tour participants are generally

held to forum selection clauses and other provisions, even where

11 the provisions are pre-printed on the back of travel documents,

are unilateral and nonnegotiable, and are not communicated to the

passenger until after partial payment has been tendered, so long

as the passenger had the opportunity to read the provisions prior

to embarkation. See Defendant's Memorandum and Reply Memorandum

in Support of Motion to Dismiss (citing, inter alia. Carnival

Cruise Lines, Inc. v. Shute,

(1991); Hodes v. S.N.C.

Achille Lauro ed Altri-Gestione,

(3d Cir. 1988),

cert. dismissed,

(1989); Rawlins v. Clipper Cruise

Lines, No. 94-4150-CW, slip op. (N.D. Cal. April 25, 1995),

mandamus denied. No. 94-4150, slip op. (9th Cir. June 29, 1995);

Sasso v. Travel Dynamics, Inc.,

(D. Mass.

1994)).2 This exhaustive compilation of federal caselaw does not

control the contract formation guestion given that the guestion

does not present admiralty or other matters governed by federal

law. Compare Shute,

(first line of opinion

noting that case arises under admiralty law).3 Rather, this case

2The court's resolution of this motion has been constrained by inadeguate briefing of key legal issues. For example, TNT has completely failed to address the threshold choice of law issues and instead has proceeded under the erroneous assumption that federal law controls the court's determination of whether a binding choice of law provision ever existed between the parties.

3Indeed, TNT removed this case from state court based on diversity of citizenship and not on the existence of a federal guestion or under some other statutory grant of federal

12 is more analogous to Lambert v. Kvsar, where the First Circuit,

sitting in diversity, ruled that forum selection clauses are

presumptively valid where the clause was found to be binding on

the parties under state law. 983 F.2d at 1114-118; see Boulanger

v. Fleet Bank, No. 94-36-L, slip op. at 4-5 (D.N.H. June 6, 1994)

(forum selection clause enforced after court applied state law to

determine that clause was part of enforceable contract). The

court finds that issues of contract formation and interpretation,

including a determination of which terms were agreed upon, are to

be determined in accordance with state law.

The court next must determine which state's substantive law

should govern the contract formation and interpretation guestion.

The TNT brochure purports to reguire that disputes with tour

participants are to be resolved under Massachusetts law. Of

course, the court cannot enforce the brochure's choice of law

provision given the dispute over whether the terms of the

brochure constitute a binding contract. See Coopers & Lvbrand v.

Bailey Manufacturing Corp., No. 94-393-JD, slip op. at 8-9

(D.N.H. June 13, 1995) (no weight placed on purchase order's

choice of law provision where parties disputed whether purchase

order constituted valid contract). Instead, the court applies

"the law of the jurisdiction with the most significant

jurisdiction.

13 relationship to the contract." Ferrofluidics Corp. v. Advanced

Vacuum Components,

(1st Cir. 1992) (citing

Consolidated Mut. Ins. Co. v. Radio Foods Corp.,

,

(1964)); Coopers & Lvbrand, No. 94-393-JD,

slip op. at 5-6 (citing Glowski v. Allstate Ins. Co.,

,

(1991); Restatement (Second) of

Conflict of Laws § 188 (I)).4

Applying these principles, the court finds that

Massachusetts bears the most significant relationship to the

purported contract because the TNT vacation was discussed,

negotiated, and purchased in Burlington, Massachusetts, and

because the vacation embarked from and returned to Boston,

Massachusetts. The fact that the plaintiffs reside in New

Hampshire is of little significance to the contract formation and

4The Restatement outlines five specific factors to be considered when determining which law governs the rights and duties of a party to a contract:

(a) the place of contracting; (b) the place of negotiation of thecontract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

Second Restatement § 188(2). In addition, when construing service contracts the Restatement suggests application of "the local law of the state where the contract reguires that the services, or a major portion of the services, be rendered." Id. § 196.

14 interpretation issue given that the plaintiffs voluntarily

travelled beyond their home state to purchase the vacation from a

Massachusetts travel agent. Accordingly, the court applies the

substantive law of Massachusetts to determine whether the forum

selection clause at issue was ever part of a binding contract

between the parties.

In Massachusetts, "the interpretation of a contract presents

a guestion of law for the court, except to the extent disputed

facts bear upon such interpretation." USM Corp. v. Arthur D.

Little Svs, Inc., 28 Mass. Ap p . 108, 116,

(1989)(citing Robert Indus., Inc. v. Spence,

,

(1973); Fred S. James & Co. v. Hoffman, 24 Mass.

App. 160, 165,

, rev. denied,

,

(1987); Restatement (Second) of Contracts § 212(2) &

cmt. d (1981)), rev. denied,

,

(1990); see Starr v. Fordham,

,

(1995) ("Contract interpretation is largely an

individualized process, with the conclusion in a particular case

turning on the particular language used against the background of

other indicia of the parties' intention.")(citing Shea v. Bay

State Gas Co.,

, 222-23,

(1981)).

Disputes involving the existence, terms, and performance or

breach of an oral contract are considered guestions of fact.

15 Massey's Plate Glass Co., Inc. v. Quinlan, No. 9149,

at * 2 (Mass. App. Div. June 17, 1992) (citing First Penn

Mortg. Tr. v. Dorchester Sav. Bank,

,

(1985)). In the absence of a written or

oral agreement, Massachusetts courts will enforce implied-in-fact

contracts where the "conduct or relations of the parties imply

the existence of a contract." Popponesset Beach Assoc, v.

Marchillo, ___ Mass. App. ___ , , N.E.2d , ,

at * 3 (Jan. 3, 1996) (citing LiDonni v. Hart,

,

(1969); Restatement (Second) of

Contracts § 4 cmt. a, & illus. nos. 1 & 2 (1981)).

In general, Massachusetts courts enforce the boilerplate

terms contained in standardized contracts because "[c]ustomers

who adhere to standardized contractual terms ordinarily

understand that they are assenting to the terms not read or

understood, subject to such limitations as the law may impose."

Chase Commercial Corp. v. Owen, 32 Mass. App. 248, 253,

(1992). Such contracts are not enforceable

where they are "unconscionable, offend public policy, or are

shown to be unfair in the particular circumstances."

(small

print contractual jury waiver found fair and enforceable where,

inter alia, standardized contract was reviewed by defendant's

attorney). Moreover, when confronted with subseguent writings

16 that purport to alter prior agreements, Massachusetts courts will

not infer that a party assented to a boilerplate provision where,

inter alia, the writing

gives no notice whatsoever of proposed additional terms which are not visible on the face of the writing. In these situations, the party without knowledge or reason to know that the [document] purports to be a contract is then not bound by the terms printed on the [document].

Magliozzi v. P & T Container Service Co., 34 Mass. App. 591, 594-

95,

(1993) (guotation marks omitted) (citing

Restatement (Second) of Contracts § 211); see Restatement

(Second) of Contracts § 211, cmt. d, illus. 6 (standardized

contractual provisions not binding on party where party lacked

knowledge or reason to know of terms and where terms not referred

to in the documents or materials that are known to party).

Compare Polanskv v. Union Fed. Sav. & Loan Assoc.,

, 138 N.E.2d. 115, 117 (1956) (terms and conditions pre­

printed in bank book, but not brought to depositor's attention,

are binding on depositor where it was within common knowledge

that bank books "freguently contain provisions defining the

rights between the bank and its depositors.").

It is clear that the parties consummated some form of

agreement, perhaps an oral or an implied-in-fact contract,

because the plaintiffs paid for and, in exchange, TNT provided a

Mexican vacation. However, for the following reasons the court

17 finds that, whatever this agreement may have called for, it did

not as a matter of law include the forum selection clause printed

in the brochure.

First, there is no genuine dispute of fact that TNT failed

to communicate to the plaintiffs the substance or even the

existence of the forum selection clause. TNT has not adduced

evidence to challenge the veracity of key portions of the

plaintiffs' affidavits. Specifically, TNT has not disputed (1)

that Liberty Travel failed to provide, even upon reguest, a copy

of the brochure which contained the terms of the purported

contract; (2) that neither Liberty Travel nor TNT ever alerted

the plaintiffs to the existence of the purported contract or any

forum selection provision; and (3) that the plaintiffs booked and

paid for their vacation without signing any contract or other

documentation. The plaintiffs' complete lack of notice of the

existence of the forum selection clause bars its enforceability

because a party cannot as a matter of law assent to a contractual

term which is unknown and unknowable at the time of contracting.

See Restatement (Second) § 5(1) ("A term of a promise or

agreement is that portion of the intention or assent manifested

which relates to a particular matter.").

Second, the uncontroverted affidavit testimony describing

the events surrounding the booking and purchase of the vacation

18 stands in stark contrast to the role the tour participant

contract is intended to serve in TNT's reservation and booking

procedures. Susan Amato, TNT's assistant vice president for

quality assurance/customer service, testified that the tour

participant contract "is included in the brochure which would

have been obtained by the Hazens at their retail travel agent's

location." TNT's Answers to Plaintiffs' First Set of

Interrogatories ("First Interrogatory Answers") at no. 5. TNT's

discovery responses also include the following:

6. When (month, day, and year) did TNT receive a signed Tour Participant Contract from the Plaintiffs?

ANSWER: The Tour Participant Contract would have been signed at the time of [sic] sending in of the initial deposit, but both the deposit and the Tour Participant Contract would have been sent to the travel agent and not TNT. •k -k -k -k

10. Please state all facts relied upon by TNT for the assertion that the Plaintiffs received notice of the Tour Participant Contract and the forum selection clause contained therein.

ANSWER: The Tour Participant Contract was a part of the brochure.Without access to the brochure the plaintiffs could not have booked the trip.

TNT's First Interrogatory Answers at nos. 6, 10. Moreover, the

contract itself states that a "deposit of $150 per Participant

and a signed Tour Participant Contract is required to secure

reservations." (emphasis supplied). Conspicuously absent from

19 the record is a copy of the signed contract that the contract

itself states, and TNT acknowledges in its discovery responses,

is a prereguisite to booking and placing a deposit on a vacation.

The absence of a signed contract is entirely consistent with the

plaintiffs' uncontroverted testimony that they never read,

signed, or otherwise assented to such written terms. Thus, there

is no genuine dispute of fact that on February 21, 1994, the

plaintiffs booked and agreed to purchase the vacation and that,

at some later point, TNT disregarded its own contract and stated

policies by accepting the reservation and deposit without

receiving a signed contract and without reasonably communicating

the existence of the forum selection clause or other key terms

printed in the brochure.

TNT asserts that any failure to communicate contractual

provisions is irrelevant and does not bar enforcement of the

forum selection clause because the plaintiffs concede that they

received the brochure from another source after February 21,

1994, but prior to embarkation. See TNT's Reply Memorandum in

Support of Motion to Dismiss at I.5 The argument, which may

5 TNT's heavy reliance on federal admiralty cases is erroneous given the court's ruling, supra, that state contract law, and not federal law, governs disputes involving the existence, terms, and interpretation of the contract. Moreover, even if the cruise ship decisions were controlling, the majority of those cases involved small print provisions which were communicated directly from the operator to the passenger or the

20 be valid under federal admiralty law, fails as a matter of

Massachusetts contract law. The court finds that the plaintiffs'

fortuitous receipt of a brochure from another source does not

cure TNT's undisputed failure to communicate the existence of key

terms at the time of contracting, February 21, 1994. Having

already agreed to purchase the trip, there was little or no

impetus for the plaintiffs to read, let alone assent to, the

small print included on a brochure distributed by another travel

agency, particularly absent any reason for the plaintiffs to

believe that the brochure somehow modified their rights or

controlled an already consummated agreement.

Third, TNT is prevented from relying on the forum selection

clause by principles of estoppel, fairness, and barnyard eguity.

The plaintiffs were never provided with the brochure, even though

they asked, and, therefore, were never alerted to the existence

or the substance of terms plainly designed to limit their rights.

Meanwhile, TNT processed the plaintiffs' reservation in violation

of its own contract and stated policies. Significantly, TNT

itself ignored the terms of the contract by accepting the

plaintiffs' deposit, final payment and, later, by providing the

passenger's representative on the back of necessary travel documents, such as a ticket or boarding pass. See, e.g., Shute,

. Unlike the cruise lines, TNT never communicated, directly or indirectly, the forum selection clause to the plaintiffs.

21 purchased vacation without obtaining a signed tour participant

contract. Based on the undisputed conduct of the parties, the

court finds that it would be unfair and unconscionable to bind

the plaintiffs to the forum selection provision. In the

alternative, the court finds that even if the brochure did form

the basis of an agreement between the parties, TNT's failure to

adhere to the term reguiring a signed tour participation contract

constitutes a waiver of other provisions contained in the

brochure, including that designating Massachusetts as the forum

for disputes.

In summary, the court finds as a matter of Massachusetts law

that whatever agreement may have existed between the parties it

did not embrace the forum selection clause contained in the TNT

brochure.

II. LIBERTY'S MOTION FOR SUMMARY JUDGMENT & PLAINTIFFS' RULE 56(f) MOTION FOR ENLARGEMENT OF TIME

Liberty reguests summary judgment on the ground that it

cannot be held liable for the acts and omissions of tour

operators, such as TNT, and independently owned and operated

hotels, such as the Royal Solaris. Liberty further asserts that

it was unaware of the alleged dangerous conditions at the Royal

Solaris and that travel agents are under no duty to warn its

customers of unknown risks.

22 The plaintiffs have responded that genuine disputes of fact

preclude entry of summary judgment. The plaintiffs have also

filed a motion under Rule 56(f) seeking an enlargement of time

within which to obtain discovery to adeguately respond to

Liberty's summary judgment motion. The court first addresses the

Rule 56(f) motion.

Rule 56 provides:

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions be taken or discovery be had or may make such other order as is just. Fed. R. Civ. P. 56. Moreover,

[t]he mere averment of such exclusive knowledge or control of the facts by the moving party is not adeguate: the opposing party must show to the best of his ability what facts are within the movant's exclusive knowledge or control, what steps have been taken to obtain the desired information pursuant to the discovery procedures under the Rules, and that he wishes to take advantage of these discovery procedures. The court may then order a continuance to permit discovery, or deny the motion for summary judgment without prejudice to its renewal after adeguate time has elapsed to obtain the desired information.

6 James W. Moore et al., Moore's Federal Practice 5 56.24 (2d ed.

1995) .

In support of its Rule 56(f) motion, the plaintiffs have

attested by affidavit that they have been unable to discover

23 facts relevant to their claims against Liberty. For example, the

plaintiffs seek "information concerning Liberty's relationship

with the [Royal Solaris], TNT, and information concerning

Liberty's knowledge of the conditions existing at the Royal

Solaris at the time Liberty booked the Plaintiffs' accommodations

at this hotel." Attorney Affidavit of Kelly Ayotte ("Ayotte

Affidavit") at 5 4. The plaintiffs argue that their discovery

attempts have been hindered by, inter alia, communication

problems with Mexico, TNT's refusal to provide reguested

discovery beyond that directly relevant to the forum selection

clause issue. Royal Solaris' pending motion to dismiss for lack

of personal jurisdiction, and the fact that defendant Resort

Condominiums International, Inc. and defendant RCI Travel have

been granted additional time to respond to the plaintiffs'

outstanding discovery reguests. Finally, the plaintiffs argue

that discovery does not close in this case until October 15,

1996.

The court finds that the plaintiffs' discovery efforts have

been frustrated by a variety of circumstances, but not by a lack

of diligence, and that this has significantly constrained their

ability to oppose Liberty's pending motion for summary judgment.

The court concludes that the plaintiffs have articulated a

sufficient need for further discovery to invoke the "procedural

24 escape hatch" of Rule 56(f). See Jewell v. SCMI Corp., No. 94-

359-JD, slip op. at 3-4 (D.N.H. July 11, 1995) (citing Mattoon v.

City of Pittsfield,

(1st Cir. 1992)). Liberty's

motion for summary judgment (document no. 26) is denied without

prejudice and the plaintiffs' motion under Rule 56(f) (document

no. 28) is granted. Once discovery has closed Liberty is granted

30 days within which to renew its motion based on the grounds

already asserted or any other theory properly asserted under Rule

56.

III. DISCOVERY MOTIONS

Also before the court is the plaintiffs' motion to compel

TNT to respond to outstanding discovery reguests (document no.

27) and TNT's motion to stay substantive discovery against it

pending resolution of its motion to dismiss (document no. 32).

The motions address the same dispute. TNT, despite the

absence of a protective order or other court order limiting the

scope of discovery, has objected to several of the plaintiffs'

discovery reguests on the ground that "the reguest goes far

beyond the enforceability of TNT's forum selection clause, the

only permitted subject of present discovery." See TNT's Response

to Plaintiffs' Second Reguest For Production of Documents.

25 The ruling on TNT's motion on the forum selection clause

issue, supra, disposes of both motions. TNT's motion for a stay

of discovery (document no. 32) is moot. The court grants the

plaintiffs' motion to compel discovery (document no. 27). TNT is

ordered to answer the outstanding discovery reguests within ten

(10) days of this order as provided by Local Rule 37.1(b). All

parties are encouraged to resolve future discovery disputes

informally and without judicial intervention. The court will

impose sanctions on any attorney or party it finds has acted

unreasonably.

Conclusion

The court has converted TNT's motion to dismiss under

12(b)(6) (document no. 5) into a motion for summary judgment

under Rule 56. The court rules that the plaintiffs were never

contractually bound to the forum selection clause printed in the

brochure and, thus, their action against TNT may be litigated in

this court. The motion is denied.

Liberty's motion for summary judgment (document no. 26) is

denied without prejudice to renew within thirty (30) days

following the the close of discovery, October 15, 1996. The

plaintiff's Rule 56(f) motion (document no. 28) is granted.

26 The plaintiffs' motion to compel discovery (document no. 27)

is granted. TNT's motion for a stay of discovery (document no.

32) is moot. TNT shall answer the propounded discovery within

ten (10) days of the date of this order as provided by Local Rule

37.1 (b) .

The clerk shall schedule a status conference.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge January 31, 1996

cc: Bruce W. Felmly, Esguire Wilfred J. Desmarais Jr., Esguire Margaret H. Nelson, Esguire Rodney E. Gould, Esguire Robert L. Hermann Jr., Esguire Andrew D. Dunn, Esguire

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