Motion to dismiss appeals from an interlocutory order of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, denying motion of defendant Lauro Lines s.r.l. to dismiss actions on ground that contract provision required suit to be brought in Italy.
Kearse and Mahoney, Circuit Judges, and Glasser, District Judge.*fn*
Defendants Lauro Lines s.r.l. ("Lauro"), et al., appeal from an interlocutory order of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, denying Lauro's motion to dismiss the present actions on the basis of forum-selection clauses in the ticket agreements between Lauro, owner of the cruise ship ACHILLE LAURO, and plaintiffs, who were or represent passengers on the ACHILLE LAURO. The clauses provided that any suit by passengers against Lauro was to be brought in Naples, Italy. Plaintiffs have moved to dismiss the appeals for lack of appellate jurisdiction. For the reasons below, we grant the motion.
Plaintiffs, citizens and residents of the United States, were passengers, or are the executrices of the estates of persons who were passengers, aboard the ACHILLE LAURO on a Mediterranean cruise in October 1985 when it was hijacked by terrorists of the Palestine Liberation Organization ("PLO"). The passengers were held captive and terrorized by the PLO, and they have brought the present actions, informally consolidated below, to recover damages for physical and psychological injuries and for the wrongful death of Leon Klinghoffer.
Lauro moved to dismiss the actions on several grounds, including the ground that a forum-selection clause in each passenger ticket required plaintiffs to bring these suits in Naples. The district court denied the motion to dismiss. With respect to the forum-selection clause, the court stated that the touchstone for enforceability was "whether the ticket reasonably communicates the importance of its contract provision." Transcript dated October 21, 1987 ("Tr."), at 3. The court described the "cover reference" to the forum clause as "unobtrusive" and noted that the clause itself appeared in "tiny type." Id. at 4. Further, the court noted that though the ticket provided that the passenger "'specifically approves'" certain clauses, the forum-selection clause was not among them. Id. at 5. In addition, though there was a place for the passenger's signature at the bottom of the contract, apparently none of the tickets was signed. In sum, while the district court termed the question of adequacy of notice a close one as to which reasonable persons might differ, id. at 4, it concluded that "as a whole . . . the ticket does not give fair warning to the American citizen passenger that he or she is renouncing and waiving his or her opportunity to sue in a domestic forum over a contract made and delivered in the United States," id. at 5. Accordingly, the court denied the motion to dismiss.
Lauro and two other defendants have appealed the court's refusal to dismiss on the basis of the forum-selection clause. Plaintiffs have moved to dismiss the appeals on the ground that the denial of the motion for dismissal is an interlocutory order that is not appealable under 28 U.S.C. § 1291 (1982). Lauro, which made no effort to have the court's denial on forum-selection grounds certified for immediate appeal pursuant to 28 U.S.C. § 1292(b) (1982), argues that that denial is a final order insofar as it determines where the litigation will be conducted and that it is immediately appealable under § 1291 pursuant to the Cohen doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). We conclude that the order is not appealable and we therefore dismiss the appeals.
Section 1291 gives the courts of appeals jurisdiction to review "final decisions" of the district courts. 28 U.S.C. § 1291. The district court's denial of a motion to dismiss, which leaves the controversy pending, is not, technically, a final decision within the meaning of this section. See, e.g., Catlin v. United States, 324 U.S. 229, 236, 89 L. Ed. 911, 65 S. Ct. 631 (1945). The Cohen doctrine, on which Lauro here relies, is a judicially created exception that allows an immediate appeal from certain orders that are collateral to the merits of the litigation and that cannot be reviewed adequately after final judgment. As the Supreme Court has described it,
the collateral order doctrine is a "narrow exception," . . . whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal. See Helstoski v. Meanor, 442 U.S. 500, 506-508, 61 L. Ed. 2d 30, 99 S. Ct. 2445 (1979); Abney v. United States, 431 U.S. 651, 660-662, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). To fall within the exception, an order must at a minimum satisfy three conditions: It must "conclusively determine the disputed question," "resolve an important issue completely separate from the merits of the action," and "be effectively unreviewable on appeal from a final judgement."
Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430-31, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978)).
The narrowness of the collateral order doctrine reflects judicial deference to Congress's preference against piecemeal appeals, as well as the recognition that judicial efficiency may be promoted by the denial of interim review because some interlocutory orders will have become moot by the time a final judgment is entered, either because the order is modified prior to final judgment, or because the party disadvantaged by the interlocutory order prevails in the action, or for some other reason. See, e.g., Stringfellow v. Concerned Neighbors In Action, 480 U.S. 370, 107 S. Ct. 1177, 1184, 94 L. Ed. 2d 389 (1987) (" Stringfellow "); Mitchell v. Forsyth, 472 U.S. 511, 544, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) (Brennan, J., concurring in part and dissenting in part). The Court has made it clear that when an interlocutory order will be reviewable on appeal from a final judgment, the mere fact that ultimately it might appear that an interim reversal would have been more efficient, or that the party against whom the order is entered may have difficulty in persuading the appellate court to reverse after a final judgment, is not a reason to grant immediate review. In Stringfellow, for example, a party that had been allowed to intervene in an action on condition, inter alia, that it not assert new claims sought to appeal immediately from the imposition of conditions on its intervention. Though it conceded that it would have the right to review of the conditions upon appeal from the final judgment, it argued that the practicalities of complex and protracted litigation would make an appellate court reluctant to vacate the judgment on the basis of an erroneous intervention order. The Court was unpersuaded that this consideration should lead to disregard of the Cohen requirement of effective unreviewability on appeal from final judgment. As the Court succinctly stated in Richardson-Merrell Inc. v. Koller, "the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress." 472 U.S. at 436.
This Court too has generally been reluctant to apply the Cohen doctrine in an expansive fashion, "lest this exception swallow the salutory 'final judgment' rule." Weight Watchers v. Weight Watchers Int'l, Inc., 455 F.2d 770, 773 (2d Cir. 1972); see, e.g., Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 651 (2d Cir. 1987); Carlenstolpe v. Merck & Co., 819 F.2d 33, 35-36 (2d Cir. 1987); United States Tour Operators Ass'n v. Trans World Airlines, 556 F.2d 126, 128 (2d Cir. 1977). For example, our decisions indicate that this doctrine does not permit immediate appeals pursuant to § 1291 from orders denying motions to dismiss on grounds of improper ...