Geovany Quiroz v. MSC Mediterranean Shipping Company SA , 522 F. App'x 655 ( 2013 )

Case: 12-15927 Date Filed: 06/24/2013 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15927
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cv-61322-WPD
GEOVANY QUIROZ,
Plaintiff-Appellant,
versus
MSC MEDITERRANEAN SHIPPING COMPANY S.A.,
MSC CRUISES (USA), INC.,
MSC CROCIERE S.A.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 24, 2013)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Case: 12-15927 Date Filed: 06/24/2013 Page: 2 of 15
Geovany Quiroz appeals an order compelling him to arbitrate his complaints
against MSC Mediterranean Shipping Company S.A., MSC Cruises (USA), Inc.,
and MSC Crociere S.A. (collectively “MSC”) for negligence, under the Jones Act,
and for unseaworthiness, maintenance and cure, and failure to treat, under
maritime law. The district court granted the motion of MSC to compel Quiroz to
arbitrate his claims, under the United Nations Convention on the Recognition and
Enforcement of Arbitral Awards, based on a provision in his collective bargaining
agreement that “any and all claims . . . against MSC, . . . shall be arbitrated in
accordance with the terms and conditions in this Agreement.” See 9 U.S.C. § 203.
After Quiroz appealed, we directed the parties to address three issues we raised sua
sponte about the jurisdiction of the district court and this Court. We conclude that
the district court had jurisdiction over Quiroz’s complaint and that we have
jurisdiction to review the order compelling him to arbitrate. Because the order to
compel arbitration is required by our precedents in Lindo v. NCL (Bahamas) Ltd.,
652 F.3d 1257 (11th Cir. 2011), and Bautista v. Star Cruises, 396 F.3d 1289 (11th
Cir. 2005), we affirm.
I. BACKGROUND
Quiroz complained that MSC was responsible for injuries that Quiroz
suffered on December 4, 2010, while he was serving in navigable waters as “First
Pastryman” aboard the MSC POESIA. Quiroz alleged that he suffered a “dual
2
Case: 12-15927 Date Filed: 06/24/2013 Page: 3 of 15
radius and ulna fracture” when his right arm was caught in a cake mixer paddle.
Quiroz complained about the negligence of MSC for, among other things, failing
to provide a safe working environment and adequate instruction and supervision.
Quiroz also complained that the POESIA had been unseaworthy and that MSC had
violated its duties to provide maintenance and cure and to treat Quiroz “with
prompt, proper, adequate and complete medical care.” Quiroz sought monetary
damages for his injuries, and a “jury trial of all issues so triable.”
Quiroz invoked jurisdiction based on diversity of citizenship or,
alternatively, maritime law. With respect to diversity, Quiroz alleged only that
“[t]he matter in controversy exceeds, exclusive of interest and costs, the sum
specified by 28 U.S.C. [§] 1332.” In the alternative, Quiroz alleged that the
“matter f[ell] under the admiralty and maritime jurisdiction of [the] Court.”
MSC filed a motion to compel Quiroz to arbitrate his complaint and
requested, in its prayer for relief, that the district court “enter an Order dismissing
the instant action and compelling [Quiroz] to proceed to arbitration.” MSC argued
that Quiroz had entered an employment agreement that provided he would arbitrate
all claims against MSC, that agreement was enforceable under our decision in
Bautista, 396 F.3d at 1294–1301, and any defenses he might raise “to arbitration
[could] not be considered in response to . . . [the] motion to compel arbitration,”
under Bautista, id. at 1302–03, and Lindo, 652 F.3d at 1257. MSC attached to its
3
Case: 12-15927 Date Filed: 06/24/2013 Page: 4 of 15
motion a copy of Quiroz’s employment contract in which he accepted the rank of
“First Pastry” on the POESIA “according to the terms, and conditions, stated in the
Collective Agreement.” Quiroz’s contract also provided that, “[h]aving read the
rules of the above mentioned Collective Agreement which to any extent, are
literally referred to in the present act, and having also explained it, the parties have
fully agreed and accepted to underwriting it.” Article 31 of the Collective
Agreement contained an arbitration clause providing for arbitration of “any and
all” claims against MSC under Panamian law:
Grievances and disputes which remain unresolved after a sixty (60)
day period, must be referred to arbitration to the exclusion of any
other legal or court proceeding as set forth in this Agreement. It is
further agreed that any and all claims from a Seafarer against the
Company, . . . including Jones Act claims, claims for damages for
personal injury, . . . negligence, unseaworthiness, failure to provide
prompt proper and adequate medical care, or maintenance and cure
whether based in tort or contract or under the laws of any nation or
jurisdiction shall be arbitrated in accordance with the terms and
conditions in this Agreement. . . . The arbitration referred to in this
Article is exclusive and mandatory.
. . . [A]ny grievance or dispute, with the exception of a wage dispute
which is governed by the MSC Wage Grievance Policy and Procedure
(including mandatory arbitration procedures found therein) shall be
referred to and finally resolved by arbitration under the American
Arbitration Association/International Centre for Dispute Resolution
International Rules, which Rules are deemed to be incorporated by
reference into this clause. . . . The law of the vessel’s flag state[,
Panama,] shall govern any such dispute. Each party shall bear its own
attorney’s fees, but MSC shall pay for the costs of arbitration as
assessed by the AAA.
4
Case: 12-15927 Date Filed: 06/24/2013 Page: 5 of 15
Quiroz opposed the motion to compel and dismiss and argued that the
arbitration clause was invalid and unenforceable. Quiroz challenged the formation
of the contract to arbitrate on the grounds that it violated the Seaman’s Articles of
Agreement Convention, the Maritime Labor Convention, and Panamian law by
denying him the opportunity “to examine and review the terms and conditions of
the arbitration provisions and . . . to seek counsel to advise him with respect to
[those] terms and conditions.” In the alternative, Quiroz argued that the arbitration
clause was unenforceable because he would be “completely deprived of his
remedies” under the Jones Act and general maritime law if he was forced to
arbitrate under Panamian law; the arbitration clause sought to defeat the remedial
purposes of the “Jones Act and the general maritime law,” under Paladino v. Avnet
Computer Techs., Inc., 134 F.3d 1054 (11th Cir. 1998); and the arbitration clause
was void as against public policy, as addressed in Thomas v. Carnival Corp., 573
F.3d 1113 (11th Cir. 2009).
The district court granted the motion of MSC to compel and dismiss, denied
as moot all pending motions, and directed the clerk to close the case. The district
court ruled that, under Bautista, it had to compel arbitration because the arbitration
clause satisfied the four requirements for it to fall under the Convention. 396 F.3d
at 1294–95 & n.7. The district court also ruled that Quiroz’s affirmative defenses
were “not viable at the arbitration enforcement stage” and “must be asserted during
5
Case: 12-15927 Date Filed: 06/24/2013 Page: 6 of 15
the arbitral award enforcement stage” of the action, under Lindo, 652 F.3d at1280–82.
After Quiroz appealed, we directed the parties to address three jurisdictional
issues: (1) whether the district court entered a “final decision with respect to an
arbitration,” 9 U.S.C. § 16(a)(3), that was appealable; (2) “whether the complaint
sufficiently alleged . . . that it was based on diversity of citizenship”; and, (3) if the
complaint failed to allege diversity of citizenship, “whether an amendment in this
Court, or the district court, [was] appropriate.” With regard to our jurisdiction,
MSC argued that the order compelling arbitration was not final because the district
court failed to dismiss Quiroz’s complaint and instead administratively closed the
case. Quiroz argued that the order was final because “the district court closed the
case (without entering a stay), leaving the court with nothing to do but execute the
judgment.” As to the jurisdiction of the district court, MSC argued that Quiroz
failed to allege facts sufficient to invoke diversity jurisdiction, but a remand was
unnecessary because the district court could have exercised federal question
jurisdiction under the Convention or admiralty jurisdiction. Quiroz argued that his
complaint had “sufficiently invoked the district court’s . . . admiralty jurisdiction”
and, in the alternative, he could cure any jurisdictional defects on appeal.
6
Case: 12-15927 Date Filed: 06/24/2013 Page: 7 of 15
II. STANDARD OF REVIEW
We apply a single standard of review to resolve the issues in this appeal.
We review de novo issues of “[w]hether we have jurisdiction,” San Francisco
Residence Club, Inc. v. 7027 Old Madison Pike, LLC, 583 F.3d 750, 754 (11th
Cir. 2009), and “[w]hether [the district] court [had] subject-matter jurisdiction to
hear a matter,” Holston Invs., Inc. B.V.I. v. LanLogistics Corp., 677 F.3d 1068,
1070 (11th Cir. 2012). We also review de novo an order to compel arbitration.
Lindo, 652 F.3d at 1275 n.15.
III. DISCUSSION
We divide our discussion into three parts. First, we address whether the
district court had subject matter jurisdiction over Quiroz’s complaint. Second, we
address whether the district court entered a “final decision with respect to an
arbitration,” 9 U.S.C. § 16(a)(3), that we have jurisdiction to review. Third, we
address whether the district court was required to compel Quiroz to arbitrate his
complaints against MSC.
A. Quiroz’s Complaint Failed to Allege Sufficient Facts to Invoke Jurisdiction
Based on Diversity, But He Pleaded Facts that Invoked Jurisdiction in Admiralty.
Quiroz’s complaint alleged jurisdiction based on both diversity of
citizenship and admiralty, but failed to plead sufficient facts to invoke the diversity
jurisdiction of the district court. To establish diversity jurisdiction, the complaint
must allege that the action is between “citizens of a State and citizens or subjects of
7
Case: 12-15927 Date Filed: 06/24/2013 Page: 8 of 15
a foreign state.” 28 U.S.C. § 1332(a)(2). Because Quiroz’s complaint failed to
allege his citizenship or the citizenship of MSC, the district court lacked
jurisdiction based on diversity of the parties. See Mallory & Evans Contractors &
Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1305 (11th Cir. 2011).
Congress vested district courts with original jurisdiction over “[a]ny civil
case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). From its
inception, jurisdiction in admiralty has recognized a right of action for seamen who
are injured in the service of their ship while in navigable waters. See O’Donnell v.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 40, 63 S. Ct. 488, 490–91 (1943).
“It allowed such recovery if the injury resulted from unseaworthiness of the vessel
or her tackle, and permitted recovery of maintenance and cure, ordinarily measured
by wages and the cost of reasonable medical care, if the seaman was injured or
disabled in the course of his employment.” Id. at 40, 63 S. Ct. at 491. To invoke
jurisdiction in admiralty, Quiroz had to allege facts establishing “the nature of [his]
service as a seaman[]. . ., his status as a member of the vessel, and his relationship
as such to the vessel and its operation in navigable waters.” Swanson v. Marra
Bros., 328 U.S. 1, 4, 66 S. Ct. 869, 871 (1946) (internal citations omitted).
Quiroz pleaded sufficient facts to invoke the admiralty jurisdiction of the
district court. Quiroz alleged that MSC “owned, operated, managed, maintained
and/or controlled the vessel M/S POESIA,” his “employer was an agent of” MSC,
8
Case: 12-15927 Date Filed: 06/24/2013 Page: 9 of 15
and he was injured “while employed in the capacity of First Pastryman on board
the M/S POESIA,” which established his relationship with MSC and its vessel.
Quiroz also alleged that the “vessel was in navigable waters” at the time of his
injury and that he “debarked in Port Everglades, Florida,” to obtain further
treatment.
B. We Have Jurisdiction to Review the Order Compelling Quiroz to Arbitrate.
The Federal Arbitration Act provides that a party may appeal “a final
decision with respect to an arbitration,” 9 U.S.C. § 16(a)(3), but “an appeal may
not be taken from an interlocutory order . . . compelling arbitration,” id. § 16(b)(3).
These provisions respect the authority of the district court to retain jurisdiction to
superintend the arbitration process, see Brandon, Jones, Sandall, Zeide, Kohn,
Chalal & Musso, P.A. v. Medpartners, Inc., 312 F.3d 1349, 1354–55 (11th Cir.
2002), or, alternatively, to “end[] the litigation on its merits and leave[] nothing
more for the court to do but execute the judgment” following arbitration, Green
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86, 121 S. Ct. 513, 520 (2000)
(internal quotation marks and citation omitted).
The district court entered a “final decision with respect to an arbitration” of
Quiroz’s complaint. 9 U.S.C. § 16(a)(3). To be final, the decision of the district
court had to “dispose[] of the entire case on the merits and le[ave] no part of it
pending before the court.” Green Tree, 531 U.S. at 86, 121 S. Ct. at 520. The
9
Case: 12-15927 Date Filed: 06/24/2013 Page: 10 of 15
district court granted the motion of MSC to dismiss Quiroz’s complaint and
compel arbitration. When the district court granted the motion of MSC, dismissed
as moot all other motions pending, and directed the clerk to close Quiroz’s case, “it
disposed of all the issues framed by the litigation and left nothing for the district
court to do but execute the judgment.” Batista, 396 F.3d at 1294 (internal
alterations and quotation marks omitted) (citing Emp’rs Ins. of Wausau v. Bright
Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th Cir. 2001)).
MSC argues that the district court ordered an administrative closure instead
of entering a final order, but we disagree. Our precedents establish that a district
court administratively closes a case when it retains jurisdiction to perform specific
acts and then closes the case instead of dismissing it. Brandon, Jones, 312 F.3d at1354–55; see also Fla. Assoc. for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296,
1298 (11th Cir. 2001) (retaining jurisdiction to issue orders to execute and enforce
compliance with a consent decree). In Brandon, we observed that, had the district
court disposed of the complaint and “closed” the case, “that conduct would [have]
le[d] us to conclude that the order was final.” 312 F.3d at 1354. Because the
district court also granted the plaintiff’s request “to retain jurisdiction to confirm
the arbitration award and to award attorney’s fees associated with the litigation and
the arbitration,” the order was not final because the “retained jurisdiction
contemplate[d] that more [was] yet to come in [the] litigation.” Id. at 1355. The
10
Case: 12-15927 Date Filed: 06/24/2013 Page: 11 of 15
order compelling Quiroz to arbitrate is final because it does not contemplate
further proceedings.
C. The District Court Did Not Err By Ordering Quiroz to Arbitrate His Complaint
Against MSC.
District courts have a duty to enforce an agreement to arbitrate that falls
under the United Nations Convention on the Recognition and Enforcement of
Arbitral Awards. The Convention provides that a contracting state “shall
recognize an agreement in writing under which the parties undertake to submit to
arbitration . . . [their] differences,” Convention, Art. II(1), and “shall refer the
parties to arbitration” unless the agreement is invalid, id., Art. II(3). After the
United States ratified the treaty, Congress enacted legislation, referred to as the
Convention Act, that recognizes that a district court exercises “original jurisdiction
over . . . an action or proceeding” that “fall[s] under the Convention” because it is
“deemed to arise under the laws and treaties of the United States.” 9 U.S.C. § 203.
The Convention Act, like the Convention, encourages district courts to enforce
commercial arbitration agreements. Id. § 206; see Scherk v. Alberto-Culver Co.,
417 U.S. 506, 520 n.15, 94 S. Ct. 2449, 2457 n.15 (1974).
Under the Convention Act, the district court must address a “very limited
inquiry” in determining whether to enforce an agreement to arbitrate. Bautista,
396 F.3d at 1294 (quoting Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d
270, 273 (5th Cir. 2002)). When a dispute arises about an agreement to arbitrate,
11
Case: 12-15927 Date Filed: 06/24/2013 Page: 12 of 15
the agreement is governed by the Convention if the following four factors are
present:
(1) there is an agreement in writing within the meaning of the
Convention; (2) the agreement provides for arbitration in the territory
of a signatory of the Convention; (3) the agreement arises out of a
legal relationship, whether contractual or not, which is considered
commercial; and (4) a party to the agreement is not an American
citizen, or that the commercial relationship has some reasonable
relation with one or more foreign states.
Id. at 1294 n.7. If the agreement satisfies those four jurisdictional factors, the
district court must order arbitration unless the agreement “is null and void,
inoperative or incapable of being performed.” Convention, Art. II(3). We
consider challenges to enforcement “mindful that the Convention Act generally
establishes a strong presumption in favor of arbitration of international commercial
disputes.” Bautista, 396 F.3d at 1295 (internal quotation marks and citation
omitted).
Quiroz argues that his agreement to arbitrate fails to satisfy the first
jurisdictional factor, that there be an agreement in writing, but we disagree. Parties
have an “agreement in writing” under the Convention if there is “an arbitral clause
in a contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.” Convention, Art. II(2). Quiroz does not
challenge the finding of the district court that he entered an agreement in writing.
Instead, Quiroz seeks to superimpose an additional requirement that the agreement
12
Case: 12-15927 Date Filed: 06/24/2013 Page: 13 of 15
be “validly formed” in compliance with the Seaman’s Convention, the Maritime
Labor Convention, and Panamanian law. But under the limited jurisdictional
inquiry prescribed by the Convention Act, the district court had only to confirm
that there was an agreement in writing in compliance with the Convention. See
Bautista, 396 F.3d at 1301.
Quiroz also argues that his agreement was not valid under the Conventions
and Panamanian law because he was denied an opportunity to review and consult
with counsel before entering the agreement, but this contention is essentially the
same argument about “knowledgeable consent” that we rejected in Bautista. The
crewmembers in Bautista argued that their agreement to arbitrate was
unenforceable unless their employer could prove they had been “specifically
notified of the arbitration provision,” but we held that neither the Convention nor
the Convention Act required proof of “notice or knowledgeable consent” and the
imposition of “such an evidentiary showing . . . would be squarely at odds with a
court’s limited jurisdictional inquiry” under the Convention. Id. at 1301.
Although Quiroz argues that he did not “freely enter” the agreement to arbitrate or
“understand his rights and responsibilities,” he declared in his employment
contract that he had “read the rule[] . . . [about arbitration in] the . . . Collective
Agreement, . . .[had] also explained it, . . .[and] fully agreed and accepted to
underwriting it.”
13
Case: 12-15927 Date Filed: 06/24/2013 Page: 14 of 15
Quiroz also argues that the arbitration clause is “null and void” because its
application of Panamanian law effectively deprives him of a remedy under the
Jones Act and general maritime law, but his argument is foreclosed by our
precedent. In Lindo, we recognized that the “null and void” clause in the
Convention limits the defenses available to enforcement of a seaman’s arbitration
agreement to “those limited situations, such as ‘fraud, mistake, duress, and
waiver,’ constituting ‘standard breach-of-contract defenses’ that ‘can be applied
neutrally on an international scale.’” 652 F.3d at 1276 (quoting Bautista, 396 F.3d
at 1302). Quiroz’s public policy defense “by definition cannot be applied neutrally
on an international scale.” Id. at 1278 (internal quotation marks omitted). Quiroz
contends that a public policy argument constitutes a valid defense to enforcement
of an arbitration clause under Thomas v. Carnival Corp., 573 F.3d 1113, but we
held in Lindo that “to the extent Thomas allowed the plaintiff seaman to prevail on
a new public policy defense under Article II, Thomas violate[d] Bautista and our
prior panel precedent rule.” Lindo, 652 F.3d at 1278.
Quiroz also contends that the enforcement of the arbitration clause would
effectively deny him meaningful relief and contravene our decision in Paladino v.
Avnet Computer Techologies, 134 F.3d 1054, but we disagree. Paladino involved
enforcement of an agreement to arbitrate under the Federal Arbitration Act instead
of the Convention and declared unenforceable an agreement mandating arbitration
14
Case: 12-15927 Date Filed: 06/24/2013 Page: 15 of 15
of federal statutory claims for which the employee could not recover damages. Id.at 1060–62. In contrast with Paladino, Quiroz’s agreement is enforceable under
the Convention and does not limit the authority of the arbitrator to grant Quiroz
meaningful relief. If the application of Panamanian law deprives Quiroz of a
remedy, he can raise his defense about public policy in an action to enforce the
arbitral award. See Lindo, 652 F.3d at 1263.
IV. CONCLUSION
We AFFIRM the order compelling Quiroz to arbitrate his complaint against
MSC.
15