In plaintiffs' suit against a Gibraltar-based company which hosts online poker games alleging breach of contract, misrepresentations, and violation of Ohio consumer protection laws, sua sponte dismissal of the suit on forum non conveniens grounds is affirmed where: 1) in this diversity suit, the enforceability of the forum selection clause is governed by federal law; 2) plaintiffs have not met the burden of showing that the clause is unenforceable; 3) the district court did not abuse its discretion by sua sponte raising the forum non conveniens issue as it could not have enforced the forum selection clause through defendant's motion to dismiss under FRCP 12(b)(3); and 4) the district court did not abuse its discretion in determining that Gibraltar was an appropriate alternative forum, in finding that public and private factors weigh in favor of a Gibraltar forum, and by not giving deference to plaintiffs' choice of home forum.
Argued: November 17, 2009
Decided and Filed: December 21, 2009
Opinion by Circuit Judge McKeague
For Appellant: Aparesh Paul, Levin & Associates Co., LPA
For Appellee: Behnam Dayanim, Paul Hastings Janofsky & Walker LLP