United Brands, S.A. v. Diageo Dominicana, S.R.L., Etc. , 2016 Fla. App. LEXIS 18695 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed December 21, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1544
Lower Tribunal No. 15-23985
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United Brands, S.A.,
Appellant,
vs.
Diageo Dominicana, S.R.L., f/k/a Diageo Dominicana, S.A.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, John W. Thornton, Jr., Judge.
Akerman and Francisco A. Rodriguez and Andrew J. Dominguez, for
appellant.
Hunton & Williams and Samuel A. Danon and Douglas C. Dreier, for
appellee.
Before SALTER, FERNANDEZ and LOGUE, JJ.
PER CURIAM.
We affirm the trial court’s well-reasoned order: granting the motion of the
appellee (“Diageo Dominicana”) for temporary injunction; imposing the specific
terms of the temporary injunction; and requiring a bond in the amount of
$10,000.00, in accordance with Florida Rule of Civil Procedure 1.610. The
language of the Resale Agreement of July 29, 2009, between Diageo Dominicana
and the appellant (“United Brands”) is clear and unambiguous. The Agreement is
“governed and construed in accordance with the laws of Florida without giving
effect to the principles of choice-of-law thereof.” The terms of the Resale
Agreement “supersede any prior agreement or understanding and this Agreement
may only be modified or amended by a written instrument executed by the parties
hereto.”
The parties to the suit below and to this appeal further specified:
Each party hereby irrevocably and unconditionally (a) agrees that any
action or proceeding at law or equity, arising out of or relating to this
agreement and any other agreements or the transactions
contemplated hereby and thereby shall only be brought in the state
or federal courts located in Miami-Dade County, Florida (b) expressly
submits to the personal jurisdiction and venue of such courts for the
purposes thereof and (c) waives and agrees not to raise (by way of
motion, as a defense or otherwise) any and all jurisdictional, venue
and convenience objections or defenses that such Party may have in
such action or proceeding.
Resale Agreement, section 26 (emphasis supplied).
The claims filed preemptively in the Dominican Republic by United Brands
against Diageo Dominicana unquestionably violate the exclusive forum and venue
2
provision in the Resale Agreement, prompting the Florida lawsuit and anti-suit
injunction. We reject United Brands’ argument that the presence of another
putative defendant in the Dominican Republic lawsuit—Mercasid, S.A., Diageo
Dominicana’s post-termination reseller—precludes the anti-suit injunction, as the
injunction does not mention Mercasid and Mercasid is not a party to the Florida
lawsuit.1
The federal cases relied upon by United Brands are distinguishable and not
persuasive as applied to the record before us. In Canon Latin America, Inc. v.
Lantech (CR), S.A., 508 F.3d 597 (11th Cir. 2007), for example, the foreign
country suit sought to be enjoined was filed in Costa Rica and asserted violations
of Public Law 6209 of Costa Rica. The Costa Rican court rejected the Florida
corporation’s jurisdictional challenge to the Costa Rican plaintiff’s right to sue in
Costa Rica (despite the exclusive forum selection and choice of law provision in
the written contract between the parties), finding that the provision “is of no effect,
since a public policy law such as 6209 specifies that the jurisdiction of the courts
of this country cannot be waived in this type of dispute.” Id. at 600 n.3. United
1 From the certified translations of the complaint and appeal filed by United
Brands in the Dominican Republic, it does not appear that the anti-competition
claim against Mercasid can proceed if the Florida court determines that Diageo
Dominicana properly terminated United Brands as a reseller. The trial court in the
Dominican Republic and an appellate court there have dismissed the United
Brands complaint based on the forum provision in the Resale Agreement. The
exclusive forum provision and anti-suit injunction do not disregard international
comity or, apparently, the public policy of the Dominican Republic in this case.
3
Brands has pointed to no such anti-waiver statute in the Dominican Republic that
would apply to the claims and record before us.
Finally, other federal cases adopting a more stringent consideration of the
“same parties” and “complete disposition” tests2 do not bind our consideration of
the legal issue in this case. In applying Florida contract law and our statutes
regarding choice of law and jurisdictional provisions, sections 685.101 and
685.102, Florida Statutes (2015), a federal court for this district would ordinarily
follow applicable decisions of our Florida Supreme Court or District Court of
Appeal. Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000). We
find no such state appellate decision that would prohibit the temporary injunction
entered in the present case. We thus decline to apply federal decisions outside of
Florida, which seem to suggest that the joinder of Mercasid in the Dominican
lawsuit would, in and of itself, preclude an anti-suit injunction in Florida.3
2 See, e.g., Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info.
Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004) (“An anti-suit injunction against
parallel litigation may be imposed only if: (A) the parties are the same in both
matters, and (B) resolution of the case before the enjoining court is dispositive of
the action to be enjoined.”).
3 Among other concerns, and as discussed during oral argument, we are wary of an
analysis that could circumvent or defeat an unambiguous forum
selection/governing law provision by simply adding a defendant in the foreign suit
sought to be enjoined.
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For all these reasons, we affirm the temporary injunction. The temporary
stay pending appeal ordered by this Court on July 19, 2016, will be vacated by
separate order.
5