In Leslie v. Carnival Corp. (3D06-2228, 3D07-1009; 3D07-627; 3D06-2226), the Third District issued the following on en banc consideration:
Subsequent to the release of the panel opinion in Leslie v. Carnival Corp., Nos. 3D06-2228, 3D06-2226, 2008 WL 34793, at *1 (Fla. 3d DCA Jan. 2, 2008), the Court consolidated this case with two others, and by a majority vote of the active judges of this district, see Fla. R. App. P. 9.331(a), ordered that they be considered together en banc on the issue decided in the panel opinion. Upon consideration of the matter en banc, the Court is evenly divided. Judges Gersten, Wells, Shepherd, Suarez and Lagoa voted in favor of affirming the circuit court. Chief Judge Ramirez, and Judges Cope, Cortiñas, Rothenberg and Salter voted to reverse the decision of the circuit court. The effect of the vote is that the panel opinion stands. Id.
The en banc order included a concurrence by Judge Shepherd who was joined by Judge Gersten, Judge Wells, Judge Suarez and Judge Lagoa. The dissent was written by Judge Cortiñas who was joined by Chief Judge Ramirez, Judge Cope, Judge Rothenberg and Judge Salter.
The panel opinion, which stands, held:
Barry's and Leslie's chief grievance regarding Carnival's forum-selection clause is that it strips them of their constitutional right to a jury trial, and instead affords them a jury trial in their federal forum only "with the consent of both parties." See Fed. R. Civ. P. 39(c).[4] Carnival represents in its Answer Brief here that it "has no intention of opposing Appellants['] request for a jury trial" in these passengers' pending federal actions, which Barry and Leslie suggest is further evidence of what it divines to be Carnival legerdemain. We interpret Carnival's statement to mean that if the United States District Court lifts the stays in these passengers' federal admiralty actions, Carnival will consent to a jury trial in these cases. We conclude Carnival's forum-selection clause is enforceable.
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