Publicidad Vepaco, C.A. v. Mezerhane , 2015 Fla. App. LEXIS 444 ( 2015 )

Third District Court of Appeal
Opinion filed January 14, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-298
Lower Tribunal No. 11-42771
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Publicidad Vepaco, C.A., and LaTele Television, C.A.,
Appellants,
vs.
Nelson Mezerhane and Rogelio Trujillo,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jacqueline
Hogan Scola, Judge.
Holland & Knight LLP, and Rodolfo Sorondo, Jr. and Rebecca M.
Plasencia, for appellants.
Tew Cardenas LLP, and Joseph A. DeMaria and Lorayne Perez, for appellee
Nelson Mezerhane; Henry P. Bell, P.A., and Henry P. Bell, for appellee Rogelio
Trujillo.
Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
ROTHENBERG, J.
Publicidad Vepaco, C.A. and LaTele Television, C.A. (collectively, “the
Plaintiffs”) appeal the trial court’s final order dismissing their action against
Nelson Mezerhane (“Mezerhane”) and Rogelio Trujillo (“Trujillo”) (collectively,
“the Defendants”) on forum non conveniens grounds and for failure to join
indispensable parties. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiffs, two Venezuelan corporations, filed the instant action in
Florida against the Defendants, who both reside in Florida, alleging that the
Defendants stole and converted approximately $72 million in United States
Treasury Bills (“T-bills”) belonging to the Plaintiffs through an orchestrated and
massive fraudulent banking scheme involving a Venezuelan bank, Banco Federal,
C.A. (“Banco Federal). The complaint further alleges that Mezerhane was the
owner of Banco Federal; Trujillo was Banco Federal’s Chief Executive Officer;
and the Defendants orchestrated and carried out the banking scheme in Venezuela,
and thereafter the stolen T-bills temporarily passed through three entities located in
Curaçao (“the Curaçaoan entities”).
The record reflects that prior to being criminally charged in Venezuela for
their involvement in this alleged banking scheme, the Defendants fled Venezuela.
The Venezuelan government has since taken over Banco Federal and has filed
criminal charges against the Defendants for their alleged involvement in the
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banking scheme. Mezerhane and Trujillo have resided in Florida since 2010;
Mezerhane is seeking political asylum in the United States; and Mezerhane has
filed a federal lawsuit in Miami against the Venezuelan government.
A few months before filing the Florida action, the Plaintiffs commenced two
actions in Curaçao. The Plaintiffs filed an attachment proceeding against the
Curaçaoan entities and their directors. However, after the Plaintiffs discovered that
the T-bills were not in Curaçao, they filed a petition against the Curaçaoan entities
and their directors, asserting they acted in concert with the Defendants to steal the
$72 million in T-bills.
While the Curaçaoan petition was pending, the Defendants filed motions to
dismiss the Florida action based on the Plaintiffs’ failure to join indispensable
parties (the Curaçaoan entities) and on forum non conveniens grounds. In support
of the motion to dismiss for forum non conveniens, Mezerhane filed a declaration
from the attorney representing the Curaçaoan entities asserting that the claims
pending in Curaçao were duplicative of the claims filed in Florida, the Defendants
could be added to the petition filed in Curaçao, and the Plaintiffs have an available
remedy in Curaçao. A few weeks later, the Plaintiffs voluntarily dismissed their
Curaçaoan petition without prejudice.
Following a hearing on the motions to dismiss, the trial court entered an
order dismissing the Florida action based on both forum non conveniens grounds
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and for failure to join indispensable parties. The Plaintiffs’ appeal followed.
ANALYSIS
I. Failure to Join Indispensable Parties
The trial court erred by dismissing the Plaintiffs’ action for failure to join the
Curaçaoan entities. “‘An indispensable party is one whose legal or beneficial
interest in the subject matter makes it impossible to completely adjudicate the
matter without affecting that party’s interest.’” Carbon Capital II v. Estate of Tutt,
107 So. 3d 1239, 1245 (Fla. 3d DCA 2013) (quoting Santiago v. Sunset Cove
Invs., Inc., 988 So. 2d 10, 14 (Fla. 2d DCA 2008)); see also Fla. Dep’t of Revenue
v. Cummings, 930 So. 2d 604, 607 (Fla. 2006); Diaz v. Impex of Doral, Inc., 7 So.
3d 591, 594 (Fla. 3d DCA 2009).
The Defendants have not demonstrated that the Curaçaoan entities would be
indispensable in this action such that “no final decision can be rendered without
their joinder.” Hertz Corp. v. Piccolo, 453 So. 2d 12, 14 n.3 (Fla. 1984). Although
the Curaçaoan entities may be potentially liable, “[u]nder Florida law, it is not
necessary to join all persons [or entities] potentially liable for damages for an
action to proceed.” Diaz, 7 So. 3d at 594. Accordingly, we reverse the portion of
the trial court’s order dismissing the Plaintiffs’ action for failure to join
indispensable parties.
II. Forum Non Conveniens
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When the trial court granted the Defendants’ motion to dismiss based on the
doctrine of forum non conveniens, Kinney System, Inc. v. Continental Insurance
Co., 674 So. 2d 86 (Fla. 1996), was the Florida Supreme Court’s “most recent
detailed explication of the forum non conveniens doctrine in Florida.” Cortez v.
Palace Resorts, Inc., 123 So. 3d 1085, 1091 (Fla. 2013). In Kinney, the Florida
Supreme Court adopted the four-step federal standard to address forum non
conveniens challenges. Kinney, 674 So. 2d at 90 (quoting Pain v. United Techs.
Corp., 637 F.2d 775, 784-85 (D.C. Cir. 1980)). This four-step test was later
codified in Florida Rule of Civil Procedure 1.061(a), which provides as follows:
(a) Grounds for Dismissal. An action may be dismissed on
the ground that a satisfactory remedy may be more conveniently
sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists
which possesses jurisdiction over the whole case, including all of the
parties;
(2) the trial court finds that all relevant factors of private
interest favor the alternate forum, weighing in the balance a strong
presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the
court further finds that factors of public interest tip the balance in
favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit
in the alternate forum without undue inconvenience or prejudice.
The decision to grant or deny the motion for dismissal rests in the
sound discretion of the trial court, subject to review for abuse of
discretion.
After the trial court issued its order granting the Defendants’ motion to
dismiss, the Florida Supreme Court issued Cortez, which further clarified the
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application of the Kinney analysis. We now address each of the Kinney factors
pursuant to Cortez.
A. Availability of an Adequate Alternative Forum
The first of the four factors is the availability of an adequate alternative
forum. As explained in Cortez, “[t]his factor encompasses two separate
considerations: availability and adequacy.” Cortez, 123 So. 3d at 1091.
As the Florida Supreme Court recognized in Cortez, “‘the ability to perfect
service of process’ in th[e] alternative forum is the key to the availability inquiry.”
Id. at 1092 (quoting Kinney, 674 So. 2d at 90). Here, the Defendants have agreed
to accept service of process in Curaçao through counsel,1 and therefore, Curaçao is
an available forum.
As to adequacy, dismissal is not appropriate “where the alternative forum
1 A defendant need not physically appear in the alternate forum in order to satisfy
this factor, so long as he is amenable to accepting service of process in that forum.
See Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1115 (Fla. 4th DCA
1997); see also Banco Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 1333 (S.D.
Fla. 1998) (conditioning the dismissal on forum non conveniens grounds on the
defendants’ submission to the jurisdiction of the alternate forum and designation of
a representative in that forum to accept service of process on their behalf). In this
case, the Defendants’ expert, Eric DeVries, opined that Curaçao law does not
require a party’s physical presence in Curaçao in order to accept service of process
and to submit to the jurisdiction of Curaçao; rather, a representative may be
designated on behalf of the party for such purposes. The Plaintiffs’ expert did not
contest this assertion. However, as we will discuss later, while a stipulation to
accept substitute service may be sufficient to render an alternative forum
“available,” it does not necessarily mean that the forum will be convenient for the
parties.
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does not permit litigation of the subject matter of the dispute.” Kinney, 674 So. 2d
at 90 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)). In
addressing adequacy, the trial court below stated:
This Court has reviewed the opinions and citations to Curaçao law
and is not persuaded that a Curaçaoan court would reject
jurisdiction over the Defendants. However, should the Curaçaoan
courts refuse to accept jurisdiction over this case, despite Plaintiffs’
earnest efforts, and once that decision is final and no longer
appealable in Curaçao, Plaintiffs shall have leave to seek
reinstatement of this action before this Court.
(emphasis added).
The burden of proof of each element in the forum non conveniens analysis is
on the Defendants. Telemundo Network Grp., LLC v. Azteca Int’l Corp., 957 So.
2d 705, 709 (Fla. 3d DCA 2007). Here, by noting that it “is not persuaded that a
Curaçaoan court would reject jurisdiction over the Defendants,” the trial court
erroneously shifted the burden of proof regarding the viability of the alternative
forum to the Plaintiffs. Rather than requiring the Defendants to prove that a
Curaçaoan court would accept jurisdiction, the trial court improperly placed the
burden on the Plaintiffs to disprove that a “Curaçaoan court would reject
jurisdiction over the Defendants.”
As to jurisdiction in Curaçao, the parties agree that Curaçao has jurisdiction
over the action only if a harmful event occurred in Curaçao. The Defendants’
expert opined below that the alleged “harmful events” occurred in Curaçao, and
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therefore, Curaçao would have jurisdiction. However, based on the record, it
appears that the “harmful events” occurred in Venezuela, not Curaçao, as the
Plaintiffs have alleged that the T-bills were misappropriated in Venezuela and
merely temporarily diverted to Curaçao. Thus, it is uncertain whether the courts in
the alternative forum (Curaçao) will have subject matter jurisdiction over the
litigation.
What is not disputed is that the Plaintiffs will necessarily be forced to
litigate Curaçao’s subject matter jurisdiction prior to litigating their substantive
claims if the Plaintiffs are forced to file their lawsuit in Curaçao, where neither the
Plaintiffs conduct business nor the Defendants reside, and where the Defendants
will only agree to appear through their counsel. In Cortez, the Florida Supreme
Court held that “the trial judge must . . . ensure that plaintiffs can reinstate their
suit in the alternative forum without undue inconvenience or prejudice,” not grant a
forum non conveniens motion where the adequacy of the alternative forum is
uncertain. 123 So. 3d at 1091 (emphasis added) (quoting Kinney, 674 So. 2d at
90).
B. Private Interest Factors
Assuming that the Defendants demonstrated that Curaçao is an adequate
alternative forum, the trial court was then required to weigh the private interest
factors. Cortez, 123 So. 3d at 1092. “An examination of private interests,
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although a term of expansive scope, essentially focuses on four concerns: [1]
access to evidence, [2] access to witnesses, [3] enforcement of judgments, and [4]
the practicalities and expenses associated with the lawsuit.” Cortez, 123 So. 3d at
1092 (citing Kinney, 674 So. 2d at 91).
Prior to addressing the four concerns involved in the analysis of the private
interest factors, it is necessary to address the presumption in favor of a plaintiff’s
choice of forum. See Cortez, 123 So. 3d at 1092 (holding that the “[k]ey to th[e]
[private interest] prong of the forum non conveniens inquiry, . . . is that ‘the
reviewing court always should remember that a strong presumption favors the
plaintiff’s choice of forum.’” (quoting Kinney, 674 So. 2d at 91)). The
presumption in favor of a plaintiff’s choice of forum “‘can be defeated only if the
relative disadvantages to the defendant’s private interests are of sufficient weight
to overcome the presumption.’” Id. (quoting Kinney, 674 So. 2d at 91). As
recently explained in Cortez:
[I]t is axiomatic that the plaintiff has the right to choose the forum.
While the doctrine of forum non conveniens is designed to prevent an
abuse of that right when it would cause a material injustice to the
defendant, it certainly is not designed to empower defendants to
disadvantage plaintiffs by engaging in reverse forum-shopping
where, as in a scenario like the one presented in this case,
litigating in Florida would not cause a substantial burden to the
defendant.
Id. at 1094 (emphasis added).
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In addressing out-of-state plaintiffs, the Florida Supreme Court held in
Cortez: “[W]e now emphasize, in another case involving a non-Florida plaintiff,
that except where the plaintiff is from another country, the presumption in favor of
the plaintiff’s initial choice of forum is always entitled to great deference.” Cortez,
123 So. 3d at 1096. However, because Cortez did not involve a foreign plaintiff,
as in the instant case, but rather a plaintiff from another state, the Florida Supreme
Court did not specifically address what deference, if any, is to be afforded to a
foreign plaintiff. Nonetheless, there is no indication in Cortez that a foreign
plaintiff’s choice of forum, although not entitled to great deference, is not entitled
to some deference.
In the instant case, when addressing the Plaintiffs’ choice of forum, the trial
court stated that because the Plaintiffs are Venezuelan corporations, it “does not
accord any special weight to their choice of forum,” thereby indicating that it gave
no weight to the Plaintiffs’ choice of forum. However, it does not matter whether
or not the trial court erred by failing to accord any deference or weight to these
foreign Plaintiffs’ choice of forum in this case, because the private interests factors
weigh heavily in maintaining the action in Florida regardless of whether “some
deference” or absolutely no deference is afforded these foreign Plaintiffs’ choice of
forum.
1. Access to witnesses
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In addressing the access to witnesses, the trial court noted that the witnesses
are located either in Venezuela, Curaçao, or Florida, and thus, some witnesses will
have to travel regardless of where the litigation is conducted. The trial court
therefore concluded that “with regards to adequate access to witnesses, neither
Florida nor Curaçao provides a clear advantage to either party.” This finding is
unsupported by the record.
The record before this Court reflects that only three of the twenty-three
listed witnesses are believed to be located in Curaçao: the directors of the three
Curaçaoan entities. A majority of the witnesses, including key witnesses such as
the Defendants themselves and the former directors or high-level employees of
Banco Federal, either live in Florida, split time between Venezuela and Miami, or
are willing to travel to Florida for the litigation. Although the trial court basically
concluded that access to witnesses was at or near equipoise,2 the record clearly
reflects that there would be greater access to witnesses, especially key witnesses, if
the action is litigated in Florida, not Curaçao.
2. Access to Evidence
The trial court found that the parties will have equal access to evidence in
2 At or near equipoise means that “the advantages and disadvantages of the
alternative forum will not significantly undermine or favor the ‘private interests’ of
any particular party, as compared with the forum in which suit was filed.” Cortez,
123 So. 3d at 1093 (internal quotation marks omitted) (quoting Kinney, 674 So. 2d
at 91).
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Curaçao and Florida because most of the relevant evidence is located in Venezuela,
and therefore, regardless of where the litigation is conducted the documents would
have to be translated. As the trial court recognized, documents can be easily
transmitted by electronic means, and therefore, the location of the documents is a
“minor consideration.” See Inverpan, S.A. v. Britten, 646 F. Supp. 2d 1354, 1358
(S.D. Fla. 2009) (“[T]he ease of document transfer in this day and age makes [the
location of documents] a minor consideration.”). This factor accordingly does not
weigh strongly in favor of either forum.
3. Enforcement of Judgments
The trial court concluded that, based on the Plaintiffs’ expert’s testimony, a
Curaçaoan judgment would be recognized in Florida. Nonetheless, this is an
unnecessary complication associated with requiring the case to be litigated in
Curaçao because it places an additional inconvenience and hardship upon the
Plaintiffs. Rather than simply enforcing a Florida judgment against the
Defendants, both of whom reside in Florida, the Plaintiffs would have to jump
through the additional hoops of domesticating a foreign judgment and attempting
to execute the judgment in Florida. This obviously benefits the Defendants but
prejudices the Plaintiffs.
4. Practicalities and Expenses Associated with the Litigation
In addressing the practicalities and expense associated with the litigation, the
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trial court failed to recognize that the Defendants will accept service of process in
Curaçao only through counsel and they have made it clear that they will not
appear in Curaçao for depositions, hearings, or the trial. Because the Defendants
will not personally appear in Curaçao, the Plaintiffs will be forced to obtain their
statements and/or depositions through letters rogatory, and of course, because the
Defendants will not personally appear for trial in Curaçao, the Plaintiffs will be
required to videotape their testimony or question them through some other
electronic means rather than by live questioning. The Defendants’ refusal to
physically appear in Curaçao will, therefore, be an added expense and an
unnecessary inconvenience if the suit proceeds in Curaçao, resulting in prejudice to
the Plaintiffs that would not exist in Florida.
Also, in granting the motion to dismiss, the trial court recognized the
possibility that the Curaçaoan court may refuse to accept jurisdiction. Specifically,
the trial court ruled that “should the Curaçaoan courts refuse to accept jurisdiction
over this case, despite Plaintiffs’ earnest efforts . . . Plaintiffs shall have leave to
seek reinstatement of this action before this Court.” This ruling may result in
additional expenses if the Curaçaoan court determines it does not have jurisdiction
over the case because the Plaintiffs may be forced to demonstrate that they used
“earnest efforts” to establish jurisdiction in Curaçao before the Florida court will
grant the Plaintiffs leave to reinstate the action.
13
It is also important to note that, ironically, although the Defendants reside in
Florida and Mezerhane has filed a federal lawsuit in Miami against the Venezuelan
government, the Defendants claim that Florida is an inconvenient forum to litigate
the instant case. Although there may be some cases in which a defendant can
demonstrate that the forum where he resides is not the most convenient forum in
which to litigate, the instant case is not one of those anomalies. There is no
indication that proceeding in Florida would somehow “cause a material injustice to
the [D]efendant[s].” Cortez, 123 So. 3d at 1094. As stated in Cortez, the doctrine
of forum non conveniens “is not designed to empower defendants to disadvantage
plaintiffs by engaging in reverse forum-shopping where . . . litigating in Florida
would not cause a substantial burden to the defendant.” Id.
Clearly, the private interest factors are not at or near equipoise; rather, the
private interest factors weigh heavily in favor of maintaining the action in Florida.
Because both the private and public interest factors must weigh more heavily in
favor of the alternative forum in order for a motion to dismiss on the grounds of
forum non conveniens to be successful, the trial court erred by granting the
Defendants’ motion to dismiss. See Cortez, 123 So. 3d at 1093.
C. Public Interest Factors
In Cortez, the Florida Supreme Court reiterated that the private interest
factors are generally considered more important than the public interest factors.
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Cortez, 123 So. 3d at 1093. However, the Court reaffirmed that the public interest
factors must still be considered even if the “private factors weigh more heavily in
favor of the alternative forum.” Id. (emphasis added). Specifically, the Court
stated:
[W]e emphasize that Florida courts also should always consider this
third step of the forum non conveniens inquiry, even if the private
factors weigh more heavily in favor of the alternative forum, and
should require that the balance of public interests also be tipped in
favor of the alternative forum in order to defeat the presumption
favoring the plaintiff’s forum choice.
Id. Thus, if the private interest factors are at or near equipoise or weigh more
heavily in favor of the alternative forum, the court should still consider the public
interest factors, which may nonetheless prevent dismissal of an action. To warrant
dismissal of an action, both the private and the public interest factors must favor
the alternative forum. Id.
The public interest inquiry focuses on whether the litigation has a general
nexus with the chosen forum “‘sufficient to justify the forum’s commitment of
judicial time and resources to it.’” Id. (quoting Kinney, 674 So. 2d at 92 (quoting
Pain v. United Techs. Corp., 637 F.2d 775, 791 (D.C. Cir. 1980))). The public
interest inquiry also acknowledges that a court “may legitimately encourage trial of
controversies in the localities in which they arise,” and “a court may validly
consider its familiarity with governing law when deciding whether or not to retain
jurisdiction over a case.” Kinney, 674 So. 2d at 92 (quoting Pain, 637 F.2d at
15
791-92). However, because the private interest factors weigh more heavily in
favor of maintaining the Plaintiffs’ action in Florida, we need not address the
public interest factors. See Cortez, 123 So. 3d at 1093 (holding that the public
interest factors should be addressed when the private interest factors weigh in favor
of dismissal); Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855, 861 n.7 (Fla. 3d DCA
2012) (noting that the public interest inquiry in Kinney “‘comes into play only if,
in weighing the opposing parties’ private interest factors, the trial court finds them
to be at or near equipoise . . . .’” (quoting Kinney, 674 So. 2d at 91)).
D. No Undue Inconvenience or Prejudice in Reinstatement of Plaintiffs’ Action in
the Alternative Forum
Despite our determination that the order under review must be reversed, we
briefly address the final Kinney factor: whether the trial court ensured that the
Plaintiffs can reinstate their suit in Curaçao without undue inconvenience or
prejudice. This “final Kinney factor is ‘designed to ensure that when a forum non
conveniens dismissal is granted, the remedy potentially available in the alternative
forum does not become illusory.’” Cortez, 123 So. 3d at 1093-94 (quoting Kinney,
674 So. 2d at 92). “[T]his requires that the courts of the alternative forum are
genuinely open and available to provide a convenient remedy and that the moving
party stipulate to treat the action in the new forum as though it had been filed in
that forum on the date it was filed in Florida.” Id. at 1094 (citing Kinney, 674 So.
2d at 92).
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Although the Defendants have agreed to service of process through their
attorney in Curaçao, the trial court recognized the possibility that the Curaçaoan
court may refuse to accept jurisdiction. If Curaçao refuses to accept jurisdiction,
the trial court’s order provides that the Plaintiffs “shall have leave to seek
reinstatement” of the Florida action. Thus, reinstatement will not be automatic. If
Curaçao declines jurisdiction, the Plaintiffs may be required to demonstrate that
they used “earnest efforts” to establish jurisdiction in Curaçao, which, in addition
to the time lost and the monetary costs, will inconvenience and prejudice the
Plaintiffs.
CONCLUSION
For the reasons above, we reverse the trial court’s order dismissing the
action because the Plaintiffs did not fail to join indispensable parties and because
the trial court abused its discretion in granting the Defendants’ motion dismiss
based on forum non conveniens grounds, and we remand for further proceedings.
Reversed and remanded.
EMAS, J., concurs.
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Publicidad Vepaco, C.A., et al. v. Nelson Mezerhane, et al.
Case No. 3D13-298
SHEPHERD, C.J., concurring specially
I concur in the decision of the majority to reverse the trial court order
dismissing the case for failure to join indispensable parties and under the doctrine
of forum non conveniens. I write only to clarify my reasons for reversing on the
latter ground.
This case can easily be disposed of by reference to the private and public
interest prongs of the forum non conveniens inquiry. With Cortez v. Palace
Resorts, Inc., 123 So. 3d 1085, 1093 (Fla. 2013), we are now required to “always
consider” the public interest prong of the inquiry, “even if the private factors weigh
more heavily in favor of the alternative forum.” Both of these prongs must now tip
in favor of the alternative forum in order to deflect a presumption favoring the
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plaintiff’s forum choice. Id. Finally, we are told to give the same strong
presumption of forum choice to plaintiffs who are citizens of a state of the United
States other than our own.3 Id. at 1095-96. “This presumption ‘can be defeated
only if the relative disadvantages to the defendant’s private interests are of
sufficient weight to overcome the presumption.’” Id. at 1092 (citing Kinney
System, Inc. v. Continental Insurance Co., 674 So. 2d 86, 91 (Fla. 1996))
(emphasis in original).
As to the private interest factors, the defendants’ argument that the “relative
disadvantages” to them “are of sufficient weight to overcome the plaintiffs’ choice
of forum” does not pass the proverbial straight face test. The defendants, who live
in Florida, are the alleged architects of the fraud. Their testimony alone should be
sufficient to acquit themselves of the alleged fraud, if a defense there be.
Additionally, it would seem that multiple other material witnesses reside in this
state, including some additional former officers and directors of Banco Federal
who may have knowledge of the dispute.
3 The majority suggests that even a foreign plaintiff’s choice of a Florida forum
might be entitled to “some deference”. See Maj. Op. at p. 10 (emphasis in
original). I cannot join such speculation. In fact, if required, I would draw a
contrary conclusion. See Cortez, 123 So. 3d at 1096 (stating “except where the
plaintiff is from another country, the presumption in favor of the plaintiff’s initial
choice of forum is always entitled to great deference”). As the majority admits, the
issue was not before the court.
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On the other hand, the public interest prong of the forum non conveniens
doctrine does tip in favor of dismissal. The legal requirement in this regard is that
the case have some ‘“general nexus with the forum sufficient to justify the forum’s
commitment of time and resources to it.’” Id. (citing Kinney, 674 So. 2d at 92).
The only connection this state has to the claims asserted by Publicidad Verpaco
and La Tele Television is that the alleged defrauders, Mezerhane and Trujillo,
reside here. However, they reside here as a matter of grace, growing out of
political upheaval in their own country. The courts of this state have no obligation,
legal or otherwise, to supplement the federal munificence being received by them.
Curaçao, at a minimum, is an “adequate alternate forum” for the litigation of
this dispute. See Fla. R. Civ. P. 1.061(a)(1); Cortez, 123 So. 3d at 1091-92. “An
alternate forum is ‘available’ when that forum can assert jurisdiction over the
litigation sought to be transferred.” Cortez, 123 So. 3d at 1091-92. The Florida
Supreme Court stated in Kinney that “Ordinarily, this requirement will be satisfied
when the defendant is ‘amenable to process’ in the other jurisdiction,” Kinney, 674
So. 2d at 90 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507 (1946)), and
the “alternative forum offers at least some relief.” Cortez, 123 So. 3d at 1092
(citing Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001)). In this
case the defendants have agreed to accept service of process for any action filed
against them in Curaçao. Furthermore, Publicidad Vepaco and La Tele Television
20
have demonstrated by the fact they previously have filed two actions in Curaçao,
the most recently dismissed action being nearly identical to the one filed here, that
Curaçao is an adequate alternative forum.4
Nevertheless, and despite the fact that every incident of wrongful conduct in
this case occurred away from our shores, the natural workings of our forum non
conveniens law as it now exists requires us to order the trial court to devote its
limited resources and, perhaps even a panel of jurors, requisitioned from the
citizenry of Miami-Dade County to resolve this dispute.
For these reasons, I concur specially in the decision of the majority.
4 The majority confuses the “adequacy” element of this prong with “subject matter
jurisdiction” as we know it in the courts of the United States. See Maj. Op. at 6-8.
The majority cites Kinney, 674 So. 2d at 90 (quoting Piper Aircraft Co. v. Reyno,
454 U.S. 235, 254 n. 22 (1981)), for this purpose. Maj. Op. at 6-7. Reyno
confirms that the language “litigation of the subject matter of the dispute,” upon
which Kinney and hence the majority reposes its reliance, refers only to remedies
and not jurisdiction. Relying further on Reyno, Kinney concludes that “alternative
fora are inadequate under the [forum non conveniens] doctrine only if the remedy
available there clearly amounts to no remedy at all.” Kinney, 674 So. 2d at 90-91
(emphasis added). Cortez cites to the same passage from Reyno through Kinney.
Accordingly, Cortez cannot be read to make any change in the analytical
benchmarks of the “adequate alternative forum” prong of the forum non
conveniens inquiry. The majority’s suggestion that it somehow impedes the
recognition of Curaçao as an “adequate alternative forum” for this litigation is
misplaced.
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