IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL BURNS, Independent Administrator of

the estate of Elizabeth Burns, deceased,

 Plaintiff,

 v.

WILDERNESS VENTURES, INC.,

 Defendant.

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Case No. 12 C 4188

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Michael Burns (“Plaintiff”), administrator of the estate of his minor daughter, Elizabeth

Burns (“Elizabeth”), sued Defendant Wilderness Ventures, Inc. for wrongful death and survival in

connection with a wilderness trip conducted by the Defendant. Defendant moves to dismiss under

Rule 12(b)(3) for improper venue because Elizabeth and her mother, Sally Burns, signed two

contracts before the trip commenced that both contained a forum selection clause requiring all legal

proceedings relating to or arising out of the wilderness program be adjudicated in the sole

jurisdiction and venue Teton County, Wyoming. Defendant also moves for dismissal under Rule

12(b)(2) for lack of pursuant jurisdiction. For the following reasons, the Court grants Defendant’s

Motion to Dismiss for improper venue under Rule 12(b)(3), and therefore need not reach issues of

personal jurisdiction under Rule 12(b)(2).

BACKGROUND

For purposes of this motion to dismiss, the Court accepts the following well-pleaded

allegations as true. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Defendant is a

corporation incorporated in Wyoming. (Cmplt. ¶ 1). Elizabeth was a resident of Illinois. (Cmplt.

¶3). Plaintiff is the administrator of Elizabeth’s estate. (Cmplt. ¶31).
On June 22, 2011, Elizabeth’s mother, Sally Burns, contracted on behalf of Elizabeth with

Defendant for a position on a trip to the Teton national forest. (Cmplt. ¶5-7). The trip to Teton

National forest included thirteen campers (of which Elizabeth was one) and two counselors. 

(Cmplt. ¶6). The counselors for Elizabeth’s trip had completed Defendant’s counselor training

program. (Cmplt. ¶12). As part of the training, the counselors learned that in order to comply with

regulations for bear protection, food and other smelly items had to be suspended from a food pole

or tree ten feet above the ground and four feet away from the pole or the tree. (Cmplt. ¶14-15). 

Defendant knew, or should have known, that the Teton national forest had lodge pole pine trees and

an infestation of pine beetle, such that many of the lodge pole pine trees had been dead in excess of

five years. (Cmplt. ¶9).

 Due to weather conditions on the trip, the counselors leading Elizabeth’s trip used a new

campsite at the direction of Defendant. (Cmplt. ¶13). On July 18, 2011, at the new campsite, about

100 pounds of food and other smelly items had been hoisted by ropes to ten feet above the ground

in a tree at the site and suspended facing the cook site. (Complt. ¶21). Elizabeth was seated on a

downed tree about 66 feet from the base of the selected tree. (Cmplt. ¶22). While hoisting the

second 100 pounds of food onto the tree, an audible crack occurred but the counselors did not

instruct the campers hoisting the food to stop or instruct anyone to clear the area. (Complt. ¶23-24). 

While the campers continued to hoist the food bags, a second crack occurred and the tree was pulled

down in the direction that the bags had been placed. (Cmplt. ¶24). The pulled tree struck Elizabeth

in the head and torso. (Cmplt. ¶25). Elizabeth’s injuries caused her death that day. (Cmplt. ¶28). 

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STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(3) provides for the dismissal of an action for improper

venue based on the existence of a forum selection clause. See Automobile Mechs. Local 701 Welfare

& Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007); 

Continental Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 (7th Cir. 2003). In considering a motion

to dismiss for improper venue, courts may examine facts outside the complaint. See Faulkenberg

v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-10 (7th Cir. 2011) (noting it appropriate to

consider the underlying agreement containing the forum selection clause in question).

A forum selection clause that is part of an enforceable contract is presumed valid. Hugel v.

Corp. of Lloyd’s, 999 F.2d 206, 210 (7th Cir. 1993); see also AGA Shareholders, LLC v. CSK Auto,

Inc., 467 F. Supp. 2d 834, 843 (N.D. Ill. 2006). Where the forum selection clause specifies a

specific venue with “mandatory or obligatory language, the clause will be enforced.” Paper Exp.,

Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992). Plaintiffs seeking to

overcome a forum selection clause on the grounds of inconvenience have the burden to make the

showing that a forum selection clause should be invalidated. Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585, 595, 111 S.Ct. 1522 (1991), citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1,

17, 92 S. Ct. 1907 (1972).

DISCUSSION

Defendant seeks to invoke the forum selection clauses contained in two contracts signed by

Elizabeth and her mother. Defendant attached copies of the executed contracts to its Motion to

Dismiss as Exhibits B and C. The two documents (the “Contracts”) are an “Acknowledgment of

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Risks and Assumption of Responsibility Agreement” and a “Liability Release and Agreement to

Indemnify.” Each of the Contracts contains the following language:

We understand and agree that the laws of the State of Wyoming govern this

document and all aspects of our relationship with Wilderness Ventures, contractual

or otherwise; and that the State of Wyoming, County of Teton will be the sole

jurisdiction and venue for any legal proceeding relating to or arising out of this

program. 

Each of the Contracts also states that the parent or guardian signatory to the document signs “on

behalf of Participant, myself, and my spouse if said spouse is also a parent or guardian of the

Participant (my spouse and I collectively and individually referred to from this point as Parent).” 

One of the documents is a single page in length, the other two pages in length. While these

documents were not attached to the Complaint, Plaintiff does not contest that the attached Contracts

are accurate copies.

As an initial matter, this Court would normally apply the law chosen in the underlying

Contracts, in this case the law of Wyoming, to the question of the validity of the forum-selection

clause. See Faulkenberg, 637 F.3d at 809 (“Generally, the law applicable to a contract is that which

the parties intended, assuming such an intent. When that intent is expressed, it should be followed.”)

(quoting Hofeld v. Nationwide Life Ins. Co., 322 N.E.2d 454, 458 (Ill. 1975)). But neither side has

mentioned Wyoming law. Both parties cite to federal law of this Circuit together with Illinois law. 

Moreover, neither side has identified, nor has the Court located, any differences between Wyoming

law and Illinois law on forum selection principles or the issues raised by the parties. Therefore, this

Court applies federal and Illinois law to determine whether Plaintiff is bound to litigate in Wyoming. 

See Faulkenberg, 637 F.3d at 809 (applying Illinois law rather than Texas law based on parties

agreement and lack of substantial difference between the states on the issue in question).

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Plaintiff raises three objections to the presumption that the forum selection clause controls

the location of this suit: (1) the clause cannot bind Elizabeth Burns, a minor; (2) the clause cannot

bind Plaintiff, a non-signatory to the Contracts; and (3) the clause is unreasonable and violates

public policy. The Court addresses each issue in turn.

A. Forum Selection Clauses and Minors

Plaintiff argues first that Elizabeth Burns, a sixteen-year-old, is a minor and cannot be bound

by her signature to a contract containing a forum-selection clause. Plaintiff may be correct as to the

signature of a minor standing alone; however, in this case, Elizabeth’s mother, Sally Burns, signed

both contracts as both Elizabeth’s legal guardian and as an individual. In the absence of Illinois case

law regarding minors and forum selection, Plaintiff urges this court to apply Illinois case precedent

that a parent cannot waive a minor child’s cause of action against a defendant. See Meyer v.

Naperville Manner, Inc., 634 N.E.2d 411, 414 (Ill. App. 1994). 

But Defendant does not claim that Elizabeth or her mother waived rights of suit, or claim that

either Contract is an exculpatory agreement. Defendant only challenges the forum in which suit may

be brought. Persuasive authority regarding personal injury and minors suggests that courts

routinely distinguish between issues of waiver or exculpation and issues of forum selection or

consent to arbitrate. The first takes away the rights of a minor to bring suit; the latter, on the other

hand, only indicates agreement by both parties as to the location and the means by which such a suit

may be brought. See, e.g. Vega-Perez v. Carnival Cruise Lines, 361 F. Supp. 2d 1 (D.P.R. 2005)

(transferring personal injury action brought on behalf of a minor from District of Puerto Rico to

Southern District of Florida based upon contract with forum-selection clause signed by minor’s

mother); Hojnowski v. Vans State Park, 901 A. 2d 381, 391-94 (N.J. 2006) (while exculpatory

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agreements signed by a parent on behalf of a minor child violate public policy, agreements to

arbitrate disputes signed by a parent on behalf of a minor child are generally presumed valid as to

any tort claims asserted). Defendant in this case does not seek to limit Elizabeth’s substantive right

to sue, but rather only to limit the procedural avenues of such suit to those mutually agreed. As

with the above-cited cases, the fact that Elizabeth was a minor does not alter the fact that her legal

guardian adult signed contracts containing procedural limitations on her behalf. 

B. Forum Selection Clauses and Non-Signatories

With Sally Burns’ signature binding Elizabeth, the Court turns to Plaintiff’s next argument -

that Plaintiff as husband of Sally cannot be similarly bound. Plaintiff argues that his wife’s

signature on the Contracts should not bind him since he did not personally sign the contract. “To

bind a [non-signatory] to a forum selection clause, the party must be ‘closely related’ to the dispute

such that it becomes ‘foreseeable’ that it will be bound.” Hugel, 999 F.2d at 209; accord Frietsch

v. Refco, Inc., 56 F.3d 825, 827 (7th Cir. 1995) (“courts . . . enforce forum selection clauses in favor

of non-parties ‘closely related’ to a signatory”). First, the “principle of mutuality” helps determine

whether a non-signatory can enforce a forum selection clause. Frietsch, 56 F.3d at 827. The Refco

court noted that the plaintiffs could have enforced the forum selection clause against the defendant,

and consequently “mutuality requires that [the defendant] be allowed to invoke the clause.

Otherwise the plaintiffs would have a choice of venues but [the defendant] would not, and there is

no reason for such an asymmetry of procedural choices.” Id. at 828; see also Am. Patriot Ins.

Agency, Inc. v. Mut. Risk Mgt, Ltd., 364 F.3d 884, 889 (7th Cir. 2004) (suing an “affiliate” of

signatory did not “defeat” forum selection clause); Hugel, 999 F.2d at 210 ( non-signatory

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subsidiaries were “equally bound” by the forum selection clause when signatory was parent

company). 

In this case, it can scarcely be argued that Plaintiff, as administrator of Elizabeth’s estate,

could not bind Defendant to the forum of Wyoming on the basis of Plaintiff’s wife’s signature on

the Contracts. The Contracts explicitly stated in the opening paragraph that Sally Burns’ signature

as legal guardian acted as the signature for herself “and for her spouse if said spouse is also a parent

or guardian” of the minor. As with Refco, the principle of mutuality should not allow Plaintiff to

now have his choice of venues but Defendant would not. 

Second, while this Court has not been able to find factually analogous Illinois precedent in

the context of personal injury of minors, the Northern District of Ohio addressed similar

circumstances to those before the Court now. In Mohney v. USA Hockey Inc., 77 F. Supp. 2d 859

(N.D. Ohio 1999), a minor suffered injury after playing hockey in a hockey camp. The minor’s

father had signed an exculpatory agreement on behalf of himself and his son prior to his son’s

participation at the camp, so the mother brought suit on the minor’s behalf and argued that she was

not bound by her husband’s agreement. The Mohney court held that where one parent signs an

agreement on behalf of a minor, the other parent is also bound if she has accepted and enjoyed the

benefits of the agreement. Id. Because the mother had supported the son’s participation in hockey

generally, she was estopped from disaffirming the agreement. Id.

This case is analogous to Mohney, and the result is not nearly so dire. Defendant here does

not claim Plaintiff has waived the right to sue. Defendant only claims Plaintiff has lost the right to

sue in the forum of his choosing. Additionally, this is not a case where Plaintiff as non-signatory

makes a claim that he lacked awareness of the activities of the child or the contracts signed by his

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wife. In this case, Sally Burns signed on behalf of a minor legally guarded jointly by both Sally

Burns and Plaintiff. Sally Burns explicitly signed on behalf of Elizabeth, herself, and Plaintiff in

his capacity as Elizabeth’s other legal guardian. There is no allegation that the Plaintiff and his wife

were estranged, that Plaintiff had no notice of the trip, or had inadequate opportunity to review the

Contracts signed more than a month before the trip, each of which referenced signature on his behalf

in the first paragraph. To the contrary, Plaintiff in his Response to the Motion to Dismiss stands

solely on the ground that he did not sign the contract and did not himself participate in the trip, and

makes no attempt to disavow the ample notice time he had or the fact that he shared custody of his

child with his wife. See, e.g., Global Travel Mktg, Inc. v. Shea, 908 So. 2d 393 (Fla. 2005)

(Supreme Court of Florida upheld arbitration clause signed by mother of minor in wrongful death

suit brought by divorced father of minor as not violating public policy of the rights of the child). 

On these facts, the Court agrees with the reasoning of Mohney that Plaintiff Michael Burns cannot

now contest the forum-selection clause to which his wife bound both he and their minor child. 

C. Reasonableness

A forum selection clause is presumptively valid. See Bremen, 407 U.S. at 10. Following the

United States Supreme Court’s decision in Carnival Cruise Lines, Inc. v. Shute, a forum-selection

clause may well be valid even when it is a form contract that was not negotiated by the individual. 

499 U.S. 585, 111 S.Ct. 1522 (1991). Forum selection clauses represent an “ex ante determination

by the parties themselves of the place that will be the most convenient for any litigation that may

come along.” Automobile Mechanics, 502 F.3d at 746. When the language is unambiguously

demonstrates the parties’ understanding that actions related to the agreements and the events covered

by the agreements would be brought in a certain place, that language is binding on both parties. See

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In re Comdisco, Inc., 434 F.3d 963, 967 (7th Cir. 2006) ( “Contractual language can be bent when

necessary to avoid absurd or even commercially unreasonable results. But the literal reading happens

in this case to be the reasonable one.”)

The facts before the Court in this case are analogous to the United States Supreme Court’s

decision in Shute. Their similarity merits following Shute’s instruction that forum-selection clauses

in form contracts may bind an individual. In Shute, the Supreme Court permitted a forum-selection

clause on the back of a passenger cruise ticket to be bind the passenger. While acknowledging that

these types of form contracts never involve bargaining between the parties, the Supreme Court

nonetheless highlighted the important public policy considerations supporting upholding a forumselection clause in certain form contracts. The Shute court noted that cruise ships carry passengers

from many locales, and in the absence of such a provision, the cruise company could find itself the

subject of continuous suits in multiple fora, a result both unjust to the company and likely to drive

up the price of the ticket - a negative result for passengers. See Shute, 499 U.S. at 593. Of specific

importance to the case at bar, the Shute court noted that “a clause establishing ex ante the forum for

dispute resolution has the salutary effect of dispelling any confusion about where suits arising from

the contract must be brought and defended, sparing litigants the time and expense of pretrial motions

to determine the correct forum and conserving judicial resources that otherwise would be devoted

to deciding those motions.” Id. 

The facts of Shute provide a close analogy to the case before this Court. Defendant is in the

business of providing trips into Wyoming for customers from all over the United States and

internationally - a fact validated by the camper list included in Plaintiff’s Complaint. Plaintiff does

not dispute that his wife signed the Contracts weeks prior to his daughter’s departure on the trip,

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such that he had ample opportunity to review them before the trip commenced. Also as with the

cruise line in Shute, establishing ex ante the forum of Wyoming for dispute resolution should permit

litigants to dispense with motions of the type filed here, and devote judicial resources to deciding

the merits of the cases brought rather than the appropriate locale. This Court is mindful that the

Defendant does not contend that the Contracts remove Plaintiff’s right to sue, or deprive him or his

daughter of substantive rights; rather, the Contracts only serve to dictate the location of any litigation

commenced.

The presumption of a forum-selection clause’s validity can be rebutted by showing that the

clause is “unreasonable and unjust, or that the clause [i]s invalid for such reasons as fraud or

overreaching.” Bremen, 407 U.S. at 15. Specifically, the forum selection clause can be invalid in

three circumstances: (1) “[its] incorporation into the contract was the result of fraud, undue

influence, or overweening bargaining power; (2) the selected forum is so gravely difficult and

inconvenient that [the complaining party] will for all practical purposes be deprived of its day in

court; or (3) [its] enforcement . . . would contravene a strong public policy of the forum in which

the suit is brought, declared by statute or judicial decision.” AAR Intern., Inc. v. Nimelias

Enterprises S.A., 250 F.3d 510, 525 (7th Cir. 2001). Because Plaintiff challenges the enforceability

of the forum selection clause, he bears the “heavy burden” of showing that litigating in the selected

forum would be so inconvenient that it would essentially deprive him of the opportunity to bring his

claims at all. Shute, 499 U.S. at 593; accord Bremen, 407 U.S. at 17, 19.

Plaintiff does not allege, and the facts to not suggest, that the Contracts were procured by

fraud. Plaintiff focuses on the inconvenience of the state of Wyoming. While Wyoming may be

less convenient for Plaintiff than the Northern District of Illinois, this is not a case where facts

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surmount the “heavy burden” standard set forth in Bremen and Shute such that setting aside the

forum-selection clause would be warranted. As with Shute, the Defendant here is in the business

of providing escorted trips for individuals from all over the United States and internationally. 

Defendant has a strong interest in establishing before agreeing with any individual to conduct a trip

that the Defendant will be able to litigate in a certain place. And also as with Shute, the evidence

provided by Plaintiff - even accepting all factual statements in the Plaintiff’s Complaint and

Response as true - does not suggest that Wyoming is a “serious inconvenience” to Plaintiff. 

Plaintiff admits in his Response that while some of the witnesses are located in Illinois, many others

are in Wyoming, or if not there, then spread throughout the United States and internationally. The

scattering of witnesses in this case is similar to that in Shute. Following Schute’s precedent,

Plaintiff’s arguments in favor of striking the forum-selection clause do not satisfy the “heavy burden

of proof required to set aside the clause on grounds of inconvenience.” Shute, 499 U.S. at 595.

CONCLUSION

Plaintiff has not met his burden to demonstrate that the forum-selection clause agreed to by

the parties prior to the commencement of the events at issue in this suit should be set aside. 

Therefore, this action is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3), without

prejudice to the Plaintiff to bring the suit in the appropriate forum. 

 ________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: August 30, 2012

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