CECILIA M. ALTONAGA, District Judge.
Plaintiff Michael Belik ("Plaintiff" or "Belik") is a New York resident who took a cruise upon Carnival Cruise Lines' ("Carnival['s]") ship Valor (the "Vessel") in April 2010. Belik purchased his ticket for the cruise from Carnival's purported agents, the SinglesCruise Defendants,
The accident occurred in Cozumel, Quintana Roo, Mexico, at the Cozumel International Cruise Terminal ("CICT"). The property in and around the CICT, including the surrounding waters and adjacent submerged lands, is owned by the United Mexican States. The temporary use of the property was governed by concession agreements entered into between the Mexican government and government-controlled companies such as Administración Portuaria Integral de Quintana Roo, S.A. de C.V. At the time of Belik's accident, the CICT was operated and/or controlled by SSA, S.A. de C.V. ("SSA").
Under its March 1, 2002 agreement with DCM, Palangana was permitted to promote and advertise within certain areas of the CICT, including the area called the Beach Club. The Beach Club is a common area located within the CICT, used as a common area for all persons allowed to be present in the CICT.
The seawall Belik dove from was in the CICT, and Belik maintains that seawall was controlled or managed by Operadora and Palangana. These Defendants, however, insist they did not control and/or manage the seawall around the perimeter of the Beach Club from which Belik dove. Rather, they assert the Mexican government owned the seawall, and it was controlled and/or managed by SSA. After Hurricane Wilma, SSA rebuilt the Beach Club, including the addition of the seawall located around the perimeter of the Beach Club from which Belik dove. After the seawall was added, SSA used it as a revenue source by charging local Mexican water sports concessionaires a tariff to transport customers. SSA utilized security guards to monitor and invoice local Mexican water sports concessionaires' use of the seawall. SSA also controlled and limited access to the CICT property to authorized individuals.
On August 1, 2008, Palangana entered into a Temporary and Partial Use Agreement with SSA for the right to use an area within the CICT called "Local 36," which is a one-story structure with a rooftop terrace. The seawall was not a part of the August 1, 2008 Agreement between Palangana and SSA for "Local 36." In October 2008, Palangana purchased a waterslide. The waterslide was mounted to the seawall, with the top of the slide located at the rooftop of "Local 36."
Plaintiff's Complaint alleges several claims for breaches of duties allegedly owed to him by various Defendants. The Complaint names the following Defendants: Carlson Travel Group, Inc. d/b/a SinglesCruise.com; Travel Leaders Leisure Group, LLC; Travel Leaders Group, LLC; Carlson Travel Holdings, Inc.;
With regard to the SinglesCruise Defendants, in Count I Belik alleges they were negligent in providing security and managing the Cozumel Beach Party! event. In Count II Belik seeks to hold the SinglesCruise Defendants liable under a theory of negligent misrepresentation involving risk of physical harm, relying on the Restatement Second of Torts section 311. Count III states a claim of vicarious or agency liability against the SinglesCruise Defendants, alleging these Defendants were the principals in an agency relationship with the Señor Frog's Defendants. In Count IV Belik states a claim of breach of contract as an intended third party beneficiary of the SinglesCruise Defendants' contract with the Señor Frog's Defendants. Count V alleges the SinglesCruise Defendants and the Señor Frog's Defendants entered into a joint venture, and as a result of that relationship, the SinglesCruise Defendants are liable for the negligence of the Señor Frog's Defendants.
Belik raises multiple claims of negligence against Carnival. In Count VI Belik alleges Carnival failed to warn him of the known dangers surrounding the Cozumel Beach Party! excursion. In Count VII, Belik alleges Carnival is the principal to its agent, the SinglesCruise Defendants, exercised control over them, and is responsible for their negligence. Count VIII is entitled "Agency by Estoppel or Apparent Agency — Carnival," and again seeks to hold Carnival responsible for the SinglesCruise Defendants' negligence. Count IX is a claim for breach of contract as a third party beneficiary of Carnival's contract with the SinglesCruise Defendants. Count X alleges the existence of a joint venture between Carnival and the SinglesCruise Defendants.
Count XI states a claim of negligence against the Señor Frog's Defendants. Count XII states a claim of breach of contract as a third-party beneficiary of any contract existing between the Señor Frog's Defendants and the SinglesCruise Defendants.
A motion to dismiss based on forum non conveniens is a motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). See Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1290 (11th Cir.1998). The plaintiff must show that venue in the chosen forum is proper. See Wai v. Rainbow Holdings, 315 F.Supp.2d 1261, 1268 (S.D.Fla.2004) (citations omitted). For its part, the defendant invoking forum non conveniens "bears the heavy burden in opposing the plaintiff's chosen forum." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007); Wilson v. Island Seas Investments, Ltd., 590 F.3d 1264, 1269 (11th Cir.2009). Although "the court may consider matters outside the pleadings, particularly when the motion is predicated upon key issues of fact," Webster v. Royal Caribbean Cruises, Ltd., 124 F.Supp.2d 1317,
It is well established that a case should not be dismissed on forum non conveniens grounds if, in a case brought under the Court's admiralty jurisdiction, United States maritime law is applicable.
The Court previously determined it had admiralty jurisdiction over the entire case. (See Order dated Oct. 1, 2012, at 7-10 [ECF No. 236]). The Señor Frog's Defendants disagree with that decision and instead assert that "admiralty jurisdiction does not exist over the Plaintiff's claims against them."
Therefore, the threshold issue the Court must address in its forum non conveniens analysis is whether United States maritime law should apply to the Senor Frog's Defendants.
"Generally, when a plaintiff's claims support admiralty jurisdiction, the
The Eleventh Circuit has made clear that "when confronted with making a choice between applying federal maritime law and the law of a foreign country," courts are to examine the Lauritzen and Rhoditis non-exhaustive list of factors. Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1174 (11th Cir.2009). A "complete choice of law analysis requires that [a court] examine the base of operations of all parties," and that only factors relevant to the claim be considered. Id., 575 F.3d at 1176; see id. at 1175.
Despite the clear language in Cooper, the Señor Frog's Defendants urge the Court to ignore an analysis involving all other Defendants, and instead examine each of the Rhoditis/Lauritzen factors only with respect to them. They argue that such an analysis is appropriate for three reasons. First, although Cooper's express language calls for an examination of each party's base of operations, the Eleventh Circuit did not include an examination of the named plaintiff — the hurt seaman, Jameson Cooper — and therefore the Court need not include the non-Señor Frog's Defendants in its base of operations analysis. Second, were the Court to sever the Señor Frog's Defendants from the matter, they would then be the only defendants in their case, thus simplifying the Court's inquiry. And third, if the Court applied all of the factors to all of the parties in order to determine what law to apply to Plaintiff's claims against the Señor Frog's Defendants, the doctrine of depeçage would be rendered a nullity.
These arguments fail to persuade. The Señor Frog's Defendants provide no law supporting their interpretation of the Eleventh Circuit's clear instructions in Cooper. Moreover, the Court notes that in drawing their conclusion, the Señor Frog's Defendants ignore several pertinent procedural facts in Cooper. In that case, Cooper, a seaman, sought recovery from four defendants after the ship's foodlift landed on his leg: the owner of the ship; the ship itself, in rem; his employer; and the ship's manager ("the Ship Defendants"). The Ship Defendants filed a third-party
As to their second argument, the Señor Frog's Defendants have not filed a motion to sever despite their repeated suggestions during oral argument that the Court assume Belik's action against them would proceed in a separate trial before considering the base of operations of "all parties," as instructed in Cooper. Thus, in sum, although the Señor Frog's Defendants do not ask for severance, they urge the Court to frame its understanding of Cooper's instructions assuming the parties can be severed. However, for such an argument to persuade, the Señor Frog's Defendants would first have to demonstrate that their severance is warranted — after all, the Court's consideration as to whether separate trials are advisable is a condition precedent to examining the base of operations of only the Señor Frog's Defendants. A review of the record shows that no such demonstration has been made.
Lastly, the Court observes that the Señor Frog's Defendants correctly characterize the doctrine of depeçage, under which "different substantive issues in a single case may have to be resolved under the laws of different states where the choices influencing decisions differ." Foster v. United States, 768 F.2d 1278, 1281 (11th Cir.1985); see Cooper, 575 F.3d at 1173 n. 13 ("It may seem anomalous that federal maritime law may have governed Cooper's personal injury action while Dutch law governs certain third-party claims that are based on that action, but such an outcome is explicitly recognized by the conflict of laws doctrine of depecage.") (citing id.). However, the Señor Frog's Defendants misapprehend the extent to which the Court must involve non-Señor Frog's Defendants in its choice of law analysis, and therefore their conjecture that depeçage would be rendered a nullity if non-Señor Frog's Defendants are considered when evaluating the Rhoditis/Lauritzen factors misses the mark.
According to Cooper, each party's base of operations is to be examined by the Court. See id. at 1176. With respect to the application of the Lauritzen factors to other parties, the Court will consider the factors so long as they pertain to the at-issue claims. For example, in Cooper, the Eleventh Circuit declined to consider the place where Cooper contracted for his employment with his employer in its choice of law analysis because the court found that fact to have "no relevance to the policy of permitting an action for contribution or indemnity." Id. at 1175 n. 14. Similarly, here, if a particular factor as applied to a particular party has "no relevance" to a policy of adjudicating the at-issue claims in this forum, it will not be considered. See, e.g., infra Part III.A.2.c. Thus, because the Court's choice of law analysis is necessarily unique with respect to various claims, it does not run afoul of the doctrine of depeçage.
Belik's claims against the Señor Frog's Defendants sound in negligence and contract. In the negligence claim, Count XI, Belik asserts the Señor Frog's Defendants had a
(Compl. ¶ 139). Belik alleges the Señor Frog's Defendants breached that duty of care in a number of ways, including the
(Id. ¶ 140(g)).
Count XII is titled "Breach of Third Party Beneficiary Contract — Senor Frogs Defendants and SinglesCruise Defendants." (Compl. 117). In it, Belik alleges that the Señor Frog's Defendants and the SinglesCruise Defendants entered into a written agreement, the express or implied terms of which include that they "will provide a reasonably safe venue for the CARNIVAL and SINGLESCRUISE passengers, that [they] will assess the risk of danger on [their] premises, that [they] will warn of any dangers, and that [they] will prevent any such dangers" (id. ¶ 146); that Belik, like all SinglesCruise passengers who attended the Cozumel Beach Party! event, was "[a]n intended beneficiary of the contract" (id. ¶ 147); and that the Señor Frog's Defendants breached the third-party beneficiary contract "by their failure to provide a[sic] safe premises ... and by failure to provide a reasonably safe event" (id. ¶ 148).
In the light of these claims, neither party states with specificity where the breaches by the Señor Frog's Defendants — the wrongful acts — alleged in Counts XI and XII occurred. See, e.g., Cooper, 575 F.3d at 1175 (finding that the place of the wrongful act is not where the defect in the foodlift manifested itself, but rather where the foodlift was manufactured and installed); Reino de España v. Am. Bureau of Shipping, Inc., 691 F.3d 461, 467 (2d Cir.2012) ("The `place of the wrongful act is not where the vessel sinks, but where the negligence [or recklessness] occurs.'" (quoting Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 587 (2d Cir.2005))).
The parties concur that Plaintiff is a United States citizen and a resident of New York. Thus, this factor points toward the application of United States law.
Although one of the Lauritzen factors is labeled the "allegiance of the shipowner," the Court's consideration of allegiances need not be limited to shipowners. See Cooper, 575 F.3d at 1175 ("Because this is not an action directly by a seaman ... the only factors that are relevant to this claim are: ... (2) the allegiances or domiciles of the parties; ...." (emphasis added)). Further, the allegiance of each party is not necessarily afforded equal weight. Rather, the Court also considers the level of involvement of each of the parties in the at-issue claims. See id. at 1175-76 (carefully examining the role the parties played in the subject wrongful act, namely, the manufacture of the ship or the allegedly defective foodlift). As the Court has already considered the allegiance of Plaintiff, it now turns to the allegiances of the Defendants.
Palangana is a Mexican limited liability company, and Operadora is a Mexican corporation. (See Mot. 8). As the claims charge that the Señor Frog's Defendants breached both a contract and a duty owed to Belik, this factor weighs in favor of applying Mexican law.
Belik contends there are two relevant contracts with respect to this inquiry. The first is his ticket contract with Carnival, which was purchased in the United States. The second contract is the booking of the Cozumel Beach Party! excursion at a SinglesCruise meeting aboard the ship. (See Resp. 5). In contrast, the Señor Frog's Defendants argue this factor is wholly inapplicable because "Plaintiff did not sign any `contract' with either Operadora or Palangana." (Mot. 9). They concede, at most, that Belik exchanged money in Mexico with the Señor Frog's Defendants for drinks he purchased during the shore excursion, and therefore any relevant contract was consummated in Mexico.
The contract or contracts the Court considers under this factor must be relevant to the policy of permitting Plaintiff's negligence and third-party beneficiary claims against the Señor Frog's Defendants. See Cooper, 575 F.3d at 1175 n. 14; supra Part III.A.1. The Court proceeds by first examining Belik's booking of the Cozumel Beach Party! excursion before discussing Belik's ticket contract with Carnival.
Plaintiff alleges the Señor Frog's Defendants and the SinglesCruise Defendants had an "ongoing business and contractual relationship" whereby SinglesCruise funneled its passengers to the ½ Señor Frog's Restaurant by organizing and selling tickets to the Cozumel Beach Party! shore excursion. (Compl. ¶ 145). Although Plaintiff acknowledges he does not have a copy of the written agreement (see id.), during oral argument, the Court was informed that the Señor Frog's Defendants and the SinglesCruise Defendants reached, through e-mails, a mutual understanding regarding the arrangements for the Cozumel Beach Party! excursion. Thus, it is to this agreement Plaintiff alleges he became a third-party beneficiary when he booked the excursion through the SinglesCruise Defendants. (See id. ¶ 147 (Count XII)). Consequently, the Court finds that a proper resolution of the third-party beneficiary claim requires an examination of (1) the contract or excursion booking between Belik and the SinglesCruise Defendants; and (2) the contract or understanding between the SinglesCruise Defendants and the Señor Frog's Defendants.
As to the issue of the shore excursion, although the parties agree that Belik's booking occurred aboard the Panamanian-flagged Vessel while the ship was docked in Mexican waters, they dispute how this fact bears on the place of contracting. The Señor Frog's Defendants contend the transaction occurred in Mexico; Belik asserts that the Vessel is not a part of Mexico regardless of whether it is located in Mexican territorial waters. Regrettably, the parties provide no law supporting
With respect to the place the SinglesCruise Defendants and the Señor Frog's Defendants entered into their understanding, the parties barely graze the issue. Although the Señor Frog's Defendants urged the Court during oral argument that the contract was entered into in Mexico, there is no evidence in the record supporting such a conclusion. Indeed, it was not until oral argument that it came to light that the contract or understanding was reached by the exchange of e-mails. Determining the place of contract based on a series of e-mails can be a "thorny inquiry," Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120, 1125 (9th Cir.2008), and without more evidence and analysis from the parties, the place of this contract is afforded no weight in the Court's analysis.
According to Belik, his contract with Carnival is relevant to his claims against the Señor Frog's Defendants because he "could not have attended the excursion if he had not entered into a ticket contract with Carnival, via Carnival's agent SinglesCruise.com." (Resp. 5). Belik provides no further explanation supporting this proposition. As previously discussed, resolution of Belik's third-party beneficiary claim (Count XII) requires an examination of the contract or excursion booking between Belik and the SinglesCruise Defendants. See supra Part III. A.2.d.i. The question for the Court, then, is whether Belik's ticket contract with Carnival is so tied to the excursion booking that an examination of it is necessary to resolve Plaintiff's third-party beneficiary claim.
Belik's argument appears to be premised on the assertion that because only Carnival passengers who purchased their tickets through the SinglesCruise Defendants were permitted to book the excursion, they are the only third-party beneficiaries to the contract between the SinglesCruise Defendants and the Señor Frog's Defendants. (See Compl. ¶ 147 ("An intended beneficiary of the contract, written or oral, between SENOR FROGS Defendants and the SINGLESCRUISE Defendants are all of the SINGLESCRUISE Defendants [sic] passengers who attend the Cozumel Beach Party event, including the Plaintiff herein.")). At first glance, this argument alone appears insufficient — simply because Belik meets a condition imposed by the SinglesCruise Defendants prior to booking the excursion (i.e., purchasing a Carnival ticket through the SinglesCruise Defendants) does not render the Carnival ticket subject to scrutiny
However, what renders the Carnival ticket relevant to the third-party beneficiary claim are the circumstances under which it was sold. Although the SinglesCruise Defendants and Carnival did not exchange funds, the record demonstrates they maintained a mutually agreeable business relationship: the SinglesCruise Defendants sold passenger tickets on behalf of Carnival, generating revenue for Carnival; Carnival derived additional revenue from these passengers ("SinglesCruise passengers") through monies they spent onboard; the SinglesCruise Defendants marketed exclusively to SinglesCruise passengers and derived revenue from SinglesCruise passengers through the sale of shore excursions, including the Cozumel Beach Party! excursion; and the shore excursions were sold by the SinglesCruise Defendants in a designated suite
For the foregoing reasons, Belik's ticket contract with Carnival, the purchase of which opened the door to marketing and excursion opportunities from SinglesCruise — including the Cozumel Beach Party! shore excursion — is relevant to the Court's analysis of Belik's third-party beneficiary claim against the Señor Frog's Defendants. Thus, the place of Belik's ticket contract with Carnival — the United States — will be considered in the Court's choice of law inquiry.
The parties do not assert that the Court is incapable of applying the law of Mexico to this case. Accordingly, "any potential inaccessibility of [the] foreign forum [is] irrelevant." Reino de España, 691 F.3d at 467 n. 8. Further, this factor is "more pertinent to a forum non conveniens test than to a choice of law analysis." Cooper, 575 F.3d at 1175 n. 14.
It appears that the Señor Frog's Defendants interpret this factor to refer not to the forum's own law, but to the law the forum must apply upon resolution of a choice-of-law analysis. (See Mot. 9-11 (presuming that Mexican law applies, identifying areas in which there are relevant conflicts between Mexican and United States law, and concluding that because of those conflicts, "this factor ... weighs against the application of American law to the Plaintiff's claims against the Defendants")). The Señor Frog's Defendants
Due to "fortuitous circumstances," the law of the forum is generally "of little relevance in United States courts." Reino de España, 691 F.3d at 467 n. 8 (quoting Rationis, 426 F.3d at 587); see Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1517 (11th Cir.1985) (quoting Lauritzen, 345 U.S. at 590-91, 73 S.Ct. 921). "Because a law of the forum is applied to plaintiffs who voluntarily submit themselves to it is no argument for imposing the law of the forum upon those who do not." Lauritzen, 345 U.S. at 592, 73 S.Ct. 921. Here, however, Plaintiff did not voluntarily submit himself to the Southern District of Florida. Belik is a resident of New York and has travel limitations due to his injuries. Belik has brought the action in this forum pursuant to his ticket contract with Carnival, which requires that suit be filed against Carnival only in this District. (See Compl. ¶ 9). Although the forum selection clause contractually binds only Plaintiff, Carnival, and SinglesCruise,
The Señor Frog's Defendants argue that it is unfair that a forum selection clause in a contract to which they are not a party weighs against the application of Mexican law in the Court's choice of law analysis. However, the Senior Frog's Defendants are not unwitting third-parties — Plaintiff's injury resulted while he attended the Cozumel Beach Party! excursion, which operated under an understanding between SinglesCruise and the Señor Frog's Defendants for their mutual benefit.
For these reasons, the Court will afford this factor some weight and finds that it tips in favor of applying United States law.
The Señor Frog's Defendants do not disagree with Plaintiff's assertion that both Carnival and the SinglesCruise Defendants maintain bases of operations in the United States, specifically, Florida. (See Resp. 6; Reply 7). What remains for the Court to examine is whether the Señor Frog's Defendants have bases of operations
Palangana and Operadora are Mexican corporate entities wholly owned by Mexican nationals. (See Reply 7). Palangana operates the ½ Señor Frog's Restaurant, which hosted the Cozumel Beach Party!
Ninety-five percent (95%) of the patrons at the ½ Señor Frog's Restaurant are "U.S. based cruise passengers." (Resp. 6, 27). The Señor Frog's Defendants entered into an agreement with the U.S.based SinglesCruise Defendants, through a series of e-mails, to funnel SinglesCruise passengers to the Restaurant. Pursuant to this agreement, Plaintiff and other SinglesCruise passengers were directed to the ½ Señor Frog's Restaurant. Additionally, prior to Plaintiff's excursion, the SinglesCruise Defendants funneled one other group of SinglesCruise passengers to the Restaurant. Further, Operadora has relationships with a number of companies in the United States: a Texas-based company; and a franchise in Orlando, including an Orlando-based restaurant for which personnel decisions were made in the United States.
The Court finds that the Señor Frog's Defendants maintained bases of operations in the United States. Nearly all of the customers at the ½ Señor Frog's Restaurants were United States cruise ship passengers. Recognizing the Restaurant's primary revenue source, the Señor Frog's Defendants entered into an arrangement with United States companies, the SinglesCruise Defendants, to direct the stream of cruise ship passengers to its business. Operadora has business relationships with multiple entities in the United States, including all of its U.S.-based franchisees. Moreover, as a franchisor of the "Señor Frog's" name, Operadora has an interest in how its name is used, i.e., how its franchisees operate.
An analysis of the foregoing factors demonstrates that the Señor Frog's Defendants' United States base of operations, law of the forum, place of Belik's ticket contract, and Plaintiff's domicile outweigh the place of the wrongful act and the Señor Frog's Defendants' allegiances. Thus, the Court finds that United States law applies to Belik's claims against the Señor Frog's Defendants. Accordingly, this case may not be dismissed for forum non conveniens.
Even if it were necessary for the Court to consider the traditional forum non conveniens factors, the Court still finds dismissal of this case inappropriate.
The Supreme Court has "characterized forum non conveniens as, essentially, `a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.'" Sinochem, 549 U.S. at 429, 127 S.Ct. 1184 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)). "The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the
In determining whether to dismiss a case based on the doctrine of forum non conveniens, the Court must: (1) decide whether an adequate alternative forum exists which has jurisdiction over the case, (2) weigh the private interest factors of the parties with a presumption in favor of the plaintiff's initial forum choice, (3) if the balance of private interests is at or near equipoise, determine if the factors of public interest favor a trial in the foreign forum, and (4) assess whether the plaintiff can reinstate suit in the alternative forum without undue inconvenience or prejudice. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir.2001). The private interests courts consider are: (a) the relative ease of access to sources of proof; (b) the cost of obtaining the attendance of willing witnesses and the ability to compel the attendance of unwilling witnesses; (c) the possibility of viewing the premises, if a view would be appropriate to the action; (d) the enforceability of a judgment in a forum; and (e) all other practical problems that make trial of a case easy, expeditious, and inexpensive. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839; Pierre-Louis, 584 F.3d at 1056 (quoting Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1356-57 (11th Cir.2008)). The public interest factors assessed include: (a) the administrative congestion resulting from cases being tried at a site other than their origin, (b) the forum's interest in the dispute, (c) the burden of jury duty on the community in which the court sits, and (d) difficulties associated with applying foreign law. See Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. 839; Pierre-Louis, 584 F.3d at 1056 (quoting Liquidation Comm'n of Banco Intercontinental, 530 F.3d at 1356-57). In evaluating the private and public interests implicated by the venue of the litigation, "the district judge must consider the level of deference to accord the plaintiff's choice of forum." CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3828 (3d ed.2007).
Defendants accurately note that courts have repeatedly found Mexico to be an adequate alternative forum within the context of a forum non conveniens analysis. (See Mot. 18 & n. 11 (citations omitted)). Plaintiff objects to such a finding here as he argues a Mexican court lacks jurisdiction over Carnival and the SinglesCruise Defendants. However, according to Plaintiff's Mexican law expert, "foreign persons" who "submit themselves expressly through an express agreement ... could be sued in Mexico" (Ovalle Depo. 48:7-12 [ECF No. 258-1]), and both Carnival and the SinglesCruise Defendants have provided consent. For example, during oral argument, it was represented to the Court that Carnival would expressly consent to suit in Mexico. Additionally, the Court construes the SinglesCruise Defendants' statement that "Mexico provides an adequate forum for the action to be determined" ([ECF No. 220]), as an expression of its consent to a Mexican court.
It is unclear why Plaintiff also argues that the contract between Carnival and SinglesCruise, which incorporates the forum
At the outset of a forum non conveniens analysis, there is a strong presumption in favor of the plaintiff's initial forum choice. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839 (finding "unless the balance [of interests] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed"). The presumption in favor of the plaintiff is strongest when the plaintiff is a citizen or resident of the United States. See SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.2004) (citation omitted). Here, Plaintiff's "choice" to initiate litigation in the Southern District of Florida was compelled by the forum selection clause in his ticket contract with Carnival.
Regarding the first private interest factors, the availability of witnesses and sources of proof, the Señor Frog's Defendants argue that "live" testimony of the accident (Mot. 22), is critical to their defense as it goes to the issue of causation (see id. 20), and that witnesses who are located in Mexico "can neither be compelled for deposition, nor brought before the Court during trial." (Id.). Even for Mexican witnesses who are willing to travel to the United States — such as the lifeguard, Mr. Valencia — the Señor Frog's Defendants suggest they will have great difficulty in securing appropriate visas for travel. (See Reply 14).
These arguments fail to persuade. Foremost, the parties agree that there were several eyewitnesses to the accident, some of whom reside in the United States and others who reside in Mexico. Thus, in contrast to cases where courts have determined that "to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants," Gulf Oil, 330 U.S. at 511, 67 S.Ct. 839, not all eyewitnesses or other relevant witnesses are available only in the foreign forum. The Señor Frog's Defendants wholly fail to explain why testimony from witnesses who reside in the United States is insufficient to convey the nature of the accident.
Second, even if testimony from certain Mexican witnesses (who are not agents, employees, or otherwise under the control of the Señor Frog's Defendants) may be particularly relevant, the Señor Frog's Defendants are silent as to why letters of request or letters rogatory could not be sent to the appropriate Mexican authority pursuant to the Hague Convention to assist them in securing depositions in Mexico or obtaining other evidence.
In addressing several of the relevant factors, the Señor Frog's Defendants repeatedly characterize Belik's action as one for premises liability. Defendants point to no specific portion of the Complaint to support their characterization, e.g., there is no claim against the Señor Frog's Defendants as property owners. Further, it is uncontested that the Señor Frog's Defendants did not own the dock from which Belik dove into the ocean. Accordingly, the Court is unconvinced that such a characterization is helpful to the Court's inquiry. Nonetheless, because Belik's claims allege, among other things, that the venue was not "appropriate" or "safe" (Compl. ¶ 149d), evidence acquired for trial would likely include an evaluation of the accident site. This does not mean, however, that the Court or the trier of fact is required to actually view the premises, or that such a viewing is even advisable. Indeed, although the Señor Frog's Defendants contend that a jury would benefit from being able to see the water and appreciate its depth, the viewing would only "benefit" the trier of fact if the clarity of the water is the same on the day of viewing as on the day of Belik's accident. The Señor Frog's Defendants do not address this concern, nor do they explain why witnesses of the accident could not adequately testify as to the water's clarity. Accordingly, this factor does not bear on the Court's evaluation of the private interest factors.
The enforceability of a judgment obtained in either forum is uncontested by the parties, and therefore does not weigh on the Court's analysis. As Plaintiff is unable to travel to Florida, let alone Mexico, that, too, does not affect the Court's decision. The Court also gives little weight to the Señor Frog's Defendants' argument that they cannot obtain one binding judgment as to all parties because of their inability to implead third-parties. The Señor Frog's Defendants offer no support for this assertion, such as whether the potential third-parties — the Mexican government or government-controlled entities — are beyond the reach of the Court's compulsory process or are otherwise not amenable to service. (See, e.g., Mot. 25 n. 18 (citing to the Salgado Declaration ¶¶ 24-26 [ECF No. 248-2] and Lizarraga Declaration ¶ 12 [ECF No. 248-3], both of which discuss the ownership of certain relevant property, but neither of which explains why third-parties outside the United States cannot be effectively impleaded)).
Thus, none of the private interest factors weigh in favor of transferring this action to a foreign forum. Given the strong presumption in favor of Plaintiff's
The Court need not address public interest factors as the balance of private interests heavily favors retaining the action. Regardless, the Court makes two observations. First, United States law is applicable to this matter, which counsels against relegating these claims to adjudication in a foreign forum. Second, the Señor Frog's Defendants repeatedly dodge an analysis of the public interest factors with respect to the interests of the appropriate domestic forum — the United States — not merely Florida. See Wilson, 590 F.3d 1264 at 1271 (finding the district court improperly limited its consideration of forum non conveniens test to just one judicial district, as "[t]he relevant forum for purposes of the federal forum non conveniens analysis is the United States as a whole" (internal quotation marks, alterations, and citation omitted)). Indeed, it would be highly unfair for a plaintiff to be bound by a domestic forum selection clause, only to have his claims dismissed to a foreign forum by foreign defendants — who have a significant relationship with the defendant that contracted for the forum selection clause — due to any limited connection of the action to the selected domestic judicial district. In other words, the Court does not find that "material injustice is manifest" by permitting the action against the Señor Frog's Defendants to move forward in this venue. McLane v. Los Suenos Marriott Ocean & Golf Resort, 476 Fed.Appx. 831, 833 (11th Cir.2012) (quoting SME Racks, 382 F.3d at 1101).
For the foregoing reasons, the Court finds the Señor Frog's Defendants have failed to meet their burden in opposing Plaintiff's choice of forum.
Being fully advised, it is
