Popescu Ex Rel. Estate of Popescu v. CMA-CGM

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 24, 2010
No. 09-16242 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-20860-CV-CMA
CLAUDIA POPESCU, individually
and as personal representative
of the Estate of George Popescu,
deceased,
Plaintiff-Appellant,
versus
CMA-CGM,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2010)
Before BLACK, HULL and FAY, Circuit Judges.
PER CURIAM:
Appellant-plaintiff Claudia Popescu brought this wrongful death action on
behalf of herself, individually, and as the personal representative of the estate of
her deceased husband, George Popescu. Claudia Popescu’s wrongful death action
was filed against Defendant CMA CGM, a French corporation, in the Southern
District of Florida, alleging claims of negligence under the Jones Act, 46 U.S.C.
§ 30104, the Death on the High Seas Act, 46 U.S.C. §§ 30301-08, and general
maritime law of the United States.
Defendant CMA CGM hired George Popescu, a Romanian citizen, to work
as a seaman aboard a container ship, the RIGOLETTO, that CMA CGM operated.
The RIGOLETTO is owned by a French corporation, flies a French flag and sails
the Northwestern-Europe-to-Southeast-Asia trade route. While the RIGOLETTO
was moored at Port Kelang, Malaysia, a mooring line snapped and hit George
Popescu in the head. Popescu was taken to a Malaysian hospital, where he died
the following day. Claudia Popescu is also a Romanian citizen and resides in
Romania.
CMA CGM moved to dismiss Claudia Popescu’s action on forum non
conveniens grounds, arguing that the action had no connection to any of CMA
CGM’s contacts with the United States and that France and Romania provided
more appropriate fora for Popsecu to pursue her claims. The district court granted
2
CMA CGM’s motion to dismiss, concluding that Claudia Popescu had not shown
that the United States was a proper forum.
The district court noted that the parties did not dispute that the first seven
Lauritzen-Rhoditis factors weighed against the application of the United States
maritime law.1 The district court then determined that the last, disputed factor —
whether the vessel or its operator had a “substantial base of operations” in the
United States — also weighed against application of United States law. The
district court found that: (1) the RIGOLETTO had no contact with the United
States; and (2) CMA CGM’s contacts with the United States were insufficient to
constitute a substantial base of operations. In evaluating CMA CGM’s U.S.
contacts, the district court refused to consider the business operations of CMA
CGM’s U.S. subsidiaries and agents because Popescu had not made the
prerequisite showing for piercing the corporate veil. The district court concluded
that United States maritime law should not apply and that traditional forum non
conveniens considerations indicated that France and Romania were more
appropriate fora. The district court dismissed Claudia Popescu’s complaint
without prejudice.
1
Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921 (1953); Hellenic Lines Ltd. v. Rhoditis,
398 U.S. 306, 90 S. Ct. 1731 (1970).
3
After review, we affirm the district court’s dismissal for the reasons stated
in the district court’s thorough and well-reasoned order filed on November 5,
2009. We conclude that the district court’s factual findings were not clearly
erroneous, that the district court correctly applied the law of this circuit and that
the district court did not abuse its discretion in granting CMA CGM’s motion to
dismiss based on forum non conveniens. See Szulmlicz v. Norwegian Am. Line,
Inc., 698 F.2d 1192, 1196 (11th Cir. 1983).
AFFIRMED.
4