Jesus Velasquez v. CSCS International N.V. , 149 F. App'x 881 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11170 September 6, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-61183-CV-MGC
JESUS VELASQUEZ,
Plaintiff-Appellant,
versus
C.S.C.S. International, N.V.,
a foreign corporation,
COSTA CROCIERE, S.P.A.,
a foreign corporation, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 6, 2005)
Before ANDERSON, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Appellant Jesus Velasquez appeals the district court’s order dismissing his
suit based on Jones Act and general maritime claims for forum non conveniens.
For the reasons that follow, we affirm the district court’s order.
I. BACKGROUND
Velasquez, a Honduran citizen and resident, was employed by Cruise Ships
Catering & Service International N.V. (“C.S.C.S.”). He worked on a ship named
the Costa Victoria, which embarked from Genoa, Italy. Velasquez alleges that he
was injured aboard the ship while lifting boxes of wine. During the time of his
alleged injury, the Costa Victoria was in international waters calling on ports in
the Mediterranean Sea. After receiving shoreside diagnostic testing in Genoa,
Italy, Velasquez left the Costa Victoria on medical leave and went back to
Honduras where he was treated and underwent three back operations. He also had
subsequent surgery in Miami.
In a recent and very similar case, involving the same defendants, we
described the corporate makeup of the defendants.
CSCS is a Netherlands Antilles company whose only land-
based office is in Curacao, Netherlands Antilles. Costa [Crociere,
S.P.A. (“Costa”)] is an Italian corporation, headquartered in Genoa,
Italy. Through an intermediary Italian holding company, Costa is a
fully owned subsidiary of Carnival Corporation, a Panamanian
corporation with its principal place of business in Miami, Florida.
Costa maintains no officers or employees in the United States.
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Membreño v. Costa Crociere S.P.A., No. 04-16732, 2005 WL 1767906, at *1
(11th Cir. July 27, 2005). In addition, C.S.C.S., which employed Velasquez, does
not have any employees in the United States. Not only is Membreño factually
similar, but the same attorneys representing the plaintiff and defendants,
respectively, herein represented the plaintiff and defendants in Membreño.
Because of this, it appears that the discovery conducted in one case (Membreño or
Valasquez) was available for use in the other.
II. STANDARD OF REVIEW
We reverse a district court’s dismissal of a case based on forum non
conveniens only for a clear abuse of discretion. Sigalas v. Lido Mar., Inc., 776
F.2d 1512, 1519 (11th Cir. 1985).
III. DISCUSSION
While here the district court’s order does not go through a forum non
conveniens analysis in detail, it relied upon this court’s affirmance of a similar
case, Bautista v. Cruise Ships and Catering Services, Int’l, No. 04-10335, 120
Fed. Appx. 786 (TABLE) (11th Cir. Sept. 16, 2004). See id. (affirming district
court’s order dismissing for forum non conveniens where Columbian seaman
alleged injuries suffered while on the Costa Victoria at which time the ship was in
port in Naples, Italy); Bautista v. Cruise Ships and Catering Services, Int’l, 350 F.
Supp. 2d 987 (S.D. Fla. 2003). The Bautista district court, in a published order,
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did conduct a detailed forum non conveniens analysis, 350 F. Supp. 2d at 989-991,
as did this court, though unpublished, in Membreño, 2005 WL 1767906, at *2-4.
Further, even though Membreño is not binding precedent in this case, it is
certainly persuasive as it is directly on point. The essential facts necessary for a
forum non conveniens analysis are very similar if not identical in this case to those
necessary in Bautista and Membreño. Velasquez argues that the district court
prematurely dismissed this case prior to discovery on the relevant issues, however,
as noted, discovery on many of the same issues was conducted in the Membreño
case and available herein.
Membreño and Bautista are persuasive here and, in accord with those cases,
we conclude that the district court properly dismissed this action for forum non
conveniens. The law of the United States should not apply in this case as the
alleged wrongful act occurred in the Mediterranean Sea, the vessel on which
Velasquez worked was foreign, Velasquez is a resident and citizen of Honduras,
the shipowner, Costa, is an Italian corporation and foreign fora are accessible to
Velasquez. See Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195 (11th
Cir. 1983) (listing the factors for determining whether the law of the United States
should apply in a Jones Act and general maritime action; listing among the factors:
location of the wrongful act, domicile of the injured party, allegiance of the
defendant, and accessibility of foreign fora); see also Membreño, 2005 WL
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1767906, at *2-3 (finding United States law not applicable under facts similar to
those presented here); Bautista, 350 F. Supp. 2d at 989-990 (finding law of United
States not applicable where act occurred in Italy, the ship’s flag was Italian, the
injured seaman was a citizen of Colombia, the vessel was foreign owned and other
fora were available). Moreover, contrary to Velasquez’s contention, Costa’s
relationship with Carnival Corporation does not change this determination. See
Membreño, 2005 WL 1767906, at *3 (concluding that plaintiff could not establish
that Costa has a substantial base of operations in the United States warranting
application of the United States laws based upon its relationship with Carnival
Corporation, of which it is a fully owned subsidiary; stating that “[while] Carnival
maintains its principal place of business in Miami, Florida[;] this fact alone is
insufficient to establish that Costa has a substantial base of operations in the
United States”).
Finally, the forum non conveniens factors are satisfied: “(1) an adequate
alternative forum is available, (2) the public and private factors weigh in favor of
dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum
without undue inconvenience or prejudice.” Leon v. Million Air, Inc., 251 F.3d
1305, 1311 (11th Cir. 2001); see Membreño, 2005 WL 1767906, at *3 (concluding
elements were satisfied where alternative fora of Honduras, Italy and Netherlands
Antilles were available and the defendants waived their jurisdictional defenses to
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those fora, and finding interest factors weighed in favor of dismissal where
plaintiff was a non-U.S. citizen, most of the witnesses and documents were located
outside the U.S., the need to apply foreign law was strong, and no significant
relationship between the parties, the alleged wrongful act and the U.S. existed);
see also District Court Order R. 96 at 1-2 (conditioning dismissal on defendants
submitting to jurisdiction of Italy, Honduras, or Netherlands Antilles, those courts
entertaining the case and any such judgment being enforceable).
Based upon the foregoing discussion, we affirm the district court’s order
dismissing this action for forum non conveniens.
AFFIRMED.
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