Thus, the forum selection clause is not being enforced in any federal case. AOL argues that it did not waive its right to seek enforcement of the forum selection clause by its conduct before the MDL Panel. However, AOL did not ultimately oppose transfer of the federal cases to Florida rather than Virginia. Such a posture may not necessarily mean AOL waived its right to seek enforcement of the forum selection provision, but it undercuts AOL's position here. If AOL can make its witnesses and documents available in Florida for every federal case, defending this action in Massachusetts should cause AOL no harm.
Defendant also urges dismissal of the complaint on forum non conveniens grounds.
Massachusetts courts rarely grant dismissal for forum non conveniens. In a forum non conveniens determination, the court should not disturb a plaintiff's choice of forum unless the balance of public and private concerns clearly weighs in defendant's favor. 40 Mass. App. That is not the case here. Thus, in my discretion, I deny the forum non conveniens motion.