Lisa, S.A. v. Dionisio Gutierrez Mayorga , 240 F. App'x 822 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 11 2007
No. 06-15019 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-21931-CV-KMM
LISA, S.A.,
a Panamanian corporation,
Plaintiff-Appellant,
versus
DIONISIO GUTIERREZ MAYORGA,
JUAN JOSE GUTIERREZ MAYORGA,
IVAN BOEHME,
LUIS FERNANDO VILLAVERDE,
MARIA ESPERANZA MAYORGA
DE GUTIERREZ, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 11, 2007)
Before CARNES and WILSON, Circuit Judges, and WALTER,* District Judge.
PER CURIAM:
Before us for review is the judgment of the district court dismissing on
forum non conveniens grounds the lawsuit filed by Lisa, S.A. against various
individual and corporate defendants. We afford district courts “substantial
discretion” in forum non conveniens matters, Leon v. Millon Air, Inc., 251 F.3d
1305, 1310 (11th Cir. 2001), and will reverse only for a clear abuse of discretion,
Membreno v. Costa Crociere S.P.A., 425 F.3d 932, 935–36 (11th Cir. 2005) (per
curiam).
Lisa, S.A. contends that the district court should not have granted the
dismissal because the defendants delayed filing their motion to dismiss on forum
non conveniens grounds and that delay caused it severe prejudice. This contention
is not properly before us because Lisa S.A. failed to raise it in the district court.
United States v. Zinn, 321 F.3d 1084, 1090 n.7 (11th Cir. 2003) (“the district court
is not expected to read minds or independently conceive of every possible
argument a party might raise”); U.S. Equal Employment Opportunity Comm’n v.
W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (“Failure to raise an issue,
objection or theory of relief in the first instance to the trial court generally is fatal.”
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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(quotation omitted)); Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir.
1998) (“We cannot allow Plaintiff to argue a different case from the case she
presented to the district court. Because Plaintiff failed to make this argument in
the district court, we decline to consider it here.”); Stewart v. Dep’t of Health &
Human Servs., 26 F.3d 115, 115 (11th Cir. 1994) (“Judicial economy is served and
prejudice avoided by binding the parties to the facts presented and the theories
argued below.” (quotation omitted)).
Lisa, S.A.’s assertion that it did make this argument in the district court
“though admittedly inartfully stated,” essentially concedes that the argument was
not clearly presented. Clear presentation is required. United States v. Houston,
456 F.3d 1328, 1338 (11th Cir. 2006) (a litigant with a proposition to press on the
district court “should raise that point in such clear and simple language that the
trial court may not misunderstand it,” and “[w]e generally do not address on appeal
arguments not clearly presented to the district court” (quotation omitted)). In any
event, we would not be persuaded by the argument even if it were properly before
us, because there was no undue delay. The defendants filed their forum non
conveniens motion less than a month after this Court issued its mandate vacating
the district court’s stay of the proceedings.
Lisa S.A also contends that it does not have an available remedy in
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Guatemala. Ordinarily, the availability requirement “will be satisfied when the
defendant is ‘amenable to process’ in the other jurisdiction.” Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 254 n.22, 102 S. Ct. 252, 265 n.22 (1981). The district court
found that the defendants’ consent to Guatemalan jurisdiction made them amenable
to process there, which was a finding it was free to make from the conflicting
expert affidavits that were filed on the subject. Satz v. McDonnell Douglas Corp.,
244 F.3d 1279, 1282–83 (11th Cir. 2001) (per curiam); see also Ford v. Brown,
319 F.3d 1302, 1310–11 (11th Cir. 2003). Besides, the dismissal without
prejudice, which permitted Lisa S.A. to reinstate the case if it was unable to refile
in Guatemala, protected it. Ford, 319 F.3d at 1310–11.
Nor are we convinced that the district court abused its discretion in
concluding that the Guatemalan judicial system provided an adequate alternative
forum for the lawsuit. Lisa S.A.’s evidence did not clearly establish to the contrary
and, as the district court pointed out, every court to address the issue has reached
the same conclusion. While the Guatemalan courts are not perfect, “[a]n adequate
forum need not be a perfect forum.” Satz, 244 F.3d at 1283.
AFFIRMED.
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