URSULA UNGARO, District Judge.
THIS CAUSE is before the Court upon Defendants International Lifestyle, Inc., Village Resorts, Ltd., Great Resorts, Ltd., and Bloody Bay Development, Ltd.'s ("Defendants") Motion to Dismiss for Forum Non Conveniens (D.E. 98) and Bloody Bay Development, Ltd.'s Motion to Dismiss for Lack of Subject Matter Jurisdiction (D.E. 100).
THE COURT has considered the Motions and the pertinent portions of the record and is otherwise fully advised in the premises.
This lawsuit arises from injuries Plaintiff Steven Prophet sustained in Negril, Jamaica, West Indies. The following facts are taken from Plaintiffs' Third Amended Complaint. (D.E. 94.)
Plaintiffs Steven Prophet and Carmen Prophet are a married couple and residents of Pennsylvania. Defendant International Lifestyles, Inc., ("ILI") is a corporation organized under the laws of Delaware with its principal place of business in Hollywood, Florida. ILI markets and advertises various hotel properties, including the Grand Lido Negril hotel and resort in Jamaica. Defendant Village Resorts, Ltd. ("Village Resorts") is a corporation organized under the laws of Jamaica with its principal place of business in Kingston, Jamaica, West Indies. Defendant Great Resorts, Ltd. ("Great Resorts") is a corporation organized under the laws of Jamaica with its principal place of business in Kingston, Jamaica, West Indies and is a wholly owned subsidiary of Village Resorts. Defendant Bloody Bay Hotel Development Corporation ("Bloody Bay") is a corporation organized under the laws of Jamaica with its principal place of business in Kingston, Jamaica, West Indies and is partially owned by Village Resorts. Bloody Bay owns the Grand Lido Negril hotel and resort.
On October 31, 2011, Steven Prophet was injured by a defective power rack located in the fitness center of the Grand Lido Negril. On November 5, 2011, Plaintiffs filed their Third Amended Complaint, asserting claims of, inter alia, negligence, failure to exercise reasonable care, negligent failure to warn, failure to warn and misrepresentation under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("the UTPCPL"), 73 P.S. §§ 201-1—201-9.2, and Carmen Prophet's loss of Steven Prophet's consortium.
Defendants move to dismiss the Third Amended Complaint on forum non conveniens grounds. (D.E. 98.) Bloody Bay also moves to dismiss pursuant to Fed.R.Civ.P. ("Rule") 12(b)(2) for lack of personal jurisdiction. (D.E. 100.)
"The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the
Wilson, 590 F.3d at 1269 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F.3d 1283, 1289—90 (11th Cir.2009)).
At the outset, the Court will address Plaintiffs' argument that the undersigned should give their choice of forum great deference. Plaintiffs rely heavily on SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097 (11th Cir.2004) to argue that the Court can dismiss their case on forum non conveniens grounds only in the most extreme circumstances. The Supreme Court has rejected Plaintiffs' contention that their involvement somehow serves as an automatic bar to dismissal:
Piper Aircraft Co., 454 U.S. at 255 n. 23, 102 S.Ct. 252.
Plaintiffs' reliance on SME Racks is further misplaced, because the facts of that case are inapplicable to those in the instant case. The plaintiff in SME Racks was a United States citizen who sued a Spanish company for breach of contract and various torts that allegedly occurred in Florida. SME Racks, 382 F.3d at 1099. The parties negotiated the underlying contract in Florida and Spain, and the alleged breach occurred in Florida. Id. Moreover, the Court in SME Racks made specific findings that witnesses with knowledge of the loss were located in Florida and that the Spanish defendants' representatives had traveled to Florida on several occasions to negotiate the contract. Id. Here, the injury occurred outside of the United States, and the relevant premises and facilities and witnesses with first hand knowledge concerning the same are located outside the United States.
The holding of Miyoung Son v. Kerzner Int'l Resorts, Inc., 2008 WL 4186979 (S.D.Fla. Sept. 5, 2008) is more applicable to this case. In Miyoung, two United States citizens sued various defendants following an accident that occurred while they were guests of a resort in The Bahamas.
Id. (internal quotations and citations omitted) (emphasis added). Accordingly, in keeping with the holdings of Piper and Miyoung, the Court will not afford Plaintiffs' choice of forum great deference.
The Court will now address the four factors relevant to the forum non conveniens analysis.
Defendants argue that the courts of Jamaica are adequate alternative fora. "Availability and adequacy warrant separate consideration." Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.2001) (citations omitted). The Court discusses both separately.
Defendants argue that the courts of Jamaica are available fora. The Court agrees. "An alternative forum is `available' to the plaintiff when the foreign court can assert jurisdiction over the litigation sought to be transferred." Id. (citing Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252). A defendant must demonstrate the forum "possesses jurisdiction over the whole case, including all of the parties." Wilson, 590 F.3d at 1269; see also Aldana, 578 F.3d at 1290 ("[A]n alternative forum is generally deemed available if the case and all of the parties come within that court's jurisdiction.").
The Defendants stipulate that "if Plaintiffs re-file this matter in a Jamaican court, [they] would agree to litigate in the Jamaican forum." (D.E. 98 at 15.) Defendants also cite the deposition testimony of John Givans, a Jamaican attorney, who confirms that Plaintiffs can seek redress through the Jamaican court system. Givans testifies that Jamaican courts have jurisdiction over Plaintiffs' action and that Plaintiffs can pursue a-claim in Jamaica for damages for personal injury caused by negligence. (D.E. 99-7 ¶¶ 12-13.)
Plaintiffs do not contend that a Jamaican court lacks jurisdiction over their claims or that Defendants would otherwise be unamenable to litigating in Jamaica.
Defendants argue that the courts of Jamaica are adequate fora. The Court agrees. "In rare circumstances . . . where the remedy offered by the alternative forum is clearly unsatisfactory, the other forum may not be an adequate alternative." Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252; see also Aldana, 578 F.3d at 1290 ("[W]e have observed that it is only in `rare circumstances' where `the remedy offered by the other forum is clearly unsatisfactory,' that the alternative forum may be regarded as inadequate."). "Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter in dispute." Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252. However, a forum is generally adequate so long as it is available. Id.; Aldana, 578 F.3d at 1290.
Defendants cite numerous cases holding that Jamaica is an adequate forum. See, e.g., Proyectos Orchimex de Costa Rica, S.A. v. E.I. DuPont de Nemours & Co., 896 F.Supp. 1197, 1201 (M.D.Fla.1995) (noting that (1) Jamaica is a common law jurisdiction with a developed and independent court system, (2) Jamaican law provides a remedy to persons damaged by a defective product, (3) Jamaican law recognizes claims for negligence and breach of warranty, and (4) Jamaican law allows for the recovery of compensatory damages); Seales v. Panamanian Aviation Co., 356 Fed.Appx. 461, 464 (2d Cir.2009) ("[W]e detect no abuse of discretion in the district court's conclusion that Jamaica is an adequate forum."). Moreover, Defendants submit the affidavit of John Givans who testifies that Defendants may bring claims for breach of duty and negligence under Jamaica's Occupier's Liability Act and The English Common Law. (D.E. 99-7 ¶¶ 13-14.)
Plaintiffs' arguments regarding the inadequacy of the forum are unavailing. They first argue that Carmen Prophet would be unable to pursue a claim for loss of consortium under English law, thus Jamaica is an inadequate alternative forum. English law may be less favorable to Plaintiffs than American law because it does not recognize loss of consortium claims; however, this alone does not render Jamaica's remedy "clearly unsatisfactory" under Piper. See, e.g., Bell v. British Telecom., 1995 WL 476684, at *2 (S.D.N.Y. Aug. 9, 1995) (the lack of recognition of loss of consortium claims does not render Scotland a clearly inadequate alternative). Moreover, Carmen Prophet would still be entitled to pursue a claim for damages incurred in caring for Steven Prophet. Adams v. Merck & Co. Inc., 353 Fed.Appx. 960, 962-63 (5th Cir.2009) (affirming dismissal on forum non conveniens grounds and noting that English common law allowed for damages for losses incurred in caring for injured spouse and that loss of consortium was derivative cause of action that did not, standing alone, support maintaining an action in an inconvenient forum).
Plaintiffs next argue that they would not be able to pursue a claim under the UTPCPL in Jamaica and thus Jamaica is an inadequate forum. Plaintiffs, however, fail to state a claim under the UTPCPL. The UTPCPL applies to individuals who suffer ascertainable loss of money or property, but Plaintiffs have failed to allege this kind of loss in their Third Amended Complaint.
Plaintiffs cite the deposition testimony of Nicole Allen, a Jamaican attorney, to support their contention that as foreigners they would be required to post security for defendants' costs, which would make it too expensive for them to seek redress in Jamaican courts. (See D.E. 120-5 ¶ 8.) Plaintiffs' arguments are unpersuasive and speculative, because they fail to provide estimate how much they would have to pay. Moreover, Defendants have stipulated that they would waive non-resident costs if Plaintiffs re-file their case in Jamaica and Plaintiffs do not argue that nonresident costs are not waivable by the defense. (D.E. 145 at 5); See Tazoe, 631 F.3d at 1335.
Plaintiffs' final argument is that Jamaica is not an adequate forum because it is unlikely that a Jamaican attorney would pursue the action on a contingency fee basis. Plaintiffs once again cite Nicole Allen's testimony to support their argument. (D.E. 120-5 ¶ 9.) Allen admits that attorneys in Jamaica often enter into contingency fee contracts but fails to provide any basis for her opinion that a Jamaican
Courts consider the following factors in determining whether private factors weigh in favor of dismissal: (a) the relative ease of access to sources of proof; (b) the availability of compulsory process for attendance of the unwilling, and the cost of obtaining attendance of willing witnesses; (c) the possibility to view the premises, if a viewing would be appropriate to the action; and (d) all other practical problems that make trial of the case easy, expeditious, and inexpensive. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).
Defendants argue that their lack of access to Steven Prophet's medical records and their lack of power to compel testimony from the Jamaican doctors, nurses and EMT professionals who provided him medical care mandates dismissal in favor of litigation in Jamaica. Plaintiffs contend that most of the testimony and evidence that Defendants seek are not essential to the case and that even if the testimony and evidence is essential, Defendants could present videotaped testimony and introduce Steven Prophet's medical records by stipulation or summary.
The Court begins the private interest analysis by assessing the elements of Plaintiffs' claims and considering the evidence required to prove and disprove each element. See Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir.2003) ("A correct private interest analysis begins with the elements of the plaintiffs causes of action . . . The court must then consider the necessary evidence required to prove and disprove each element."). In the instant case, Plaintiffs concede that "a large part of [Steven Prophet]'s claim for damages sounds in the [Defendants'] failure to either take more reasonable care of [Steven Prophet] when he was injured or to warn him before he visited Grand Lido Negril about the complete lack of adequate facilities in the resort area in the event that he was seriously injured." (D.E. 112 at 4.) Accordingly, the issues presented necessarily involve the availability, type, quality and other characteristics of the hospitals and Emergency Medical Service ("EMS") system in the Negril area. Thus, the testimony of individuals, such as health care providers, EMS staff, and municipal government officials are essential to this case.
Defendants have established that the courts in Jamaica have subpoena power over individuals and documentary evidence located in Jamaica. (See D.E. 99-7 ¶ 8.) Additionally, many of Defendants' prospective witnesses are in Jamaica and outside the compulsory process of this Court. See Morse v. Sun Int'l Hotels, Ltd., 2001 WL 34874967, at *3 (S.D.Fla. Feb. 26, 2001). Even assuming these foreign witnesses would be willing to testify in the United States, the costs associated with obtaining their testimony would be significant. See Callasso v. Morton & Co., 324 F.Supp.2d 1320, 1331 (S.D.Fla.2004) (holding that the practicalities and expenses associated with litigation favored Nicaragua as the forum).
Plaintiffs argue that videotaped depositions and summaries of Steven Prophet's Jamaican medical records are sufficient. The Court disagrees. Given the nature of the claims, the absence of live testimony
Plaintiffs next contend that the expense they would incur in bringing their American expert witnesses to Jamaica for the trial outweighs Defendants' interests in litigating the action in Jamaica. The Court disagrees. Plaintiffs fail to explain why the expenses to which they will be exposed from litigating in Jamaica outweigh the expenses to which Defendants would be exposed if required to litigate in the United States. Moreover, many of the types of expenses Plaintiffs identify would be incurred in any event due to Plaintiffs' decision to sue in the Southern District of Florida, which has a very attenuated relationship to this case. But most important, courts around the country have favored dismissal on forum non conveniens grounds of cases that require application of a foreign country's laws regarding the appropriate standards of care. See, e.g., Chierchia v. Treasure Cay Servs., 738 F.Supp. 1386, 1389 (S.D.Fla.1990) (dismissing on forum non conveniens grounds when Bahamian tort law governed plaintiff's claim of negligence arising out of accident in Bahamian resort); Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656 (9th Cir.2009) (affirming forum non conveniens dismissal in favor of litigation in Mexico because Mexican law applies to the applicable standard of care); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F.Supp. 842, 864 (S.D.N.Y.1986) ("It would be sadly paternalistic, if not misguided, of this Court to attempt to evaluate the regulations and standards imposed in another country."); Ledingham v. Parke-Davis Div. of Warner-Lambert Co., 628 F.Supp. 1447, 1452 (E.D.N.Y 1986) ("[I]t would be manifestly unfair to defendants, who claim to have complied with Canadian regulations, if this Court were to set a higher standard of care than is required by the Canadian government."). In other words, any interest Plaintiffs have in presenting their expert witnesses in the United States is outweighed by the Defendants' interest in convenient access to the testimony of Jamaican witnesses who can attest to the standard of care in their country.
A fair consideration and balancing of Defendants' private interests against those of Plaintiffs mandates dismissal of this action in favor of litigation in Jamaica.
The public factors that a court considers include "(1) the administrative
The first public interest factor involves the administrative difficulties that flow from court congestion. Although the Southern District of Florida is one of the busiest dockets in the United States, this public interest factor is afforded little weight in the forum non conveniens analysis. Morse, 2001 WL 34874967, at *6. Accordingly, the Court finds that this factor has little significance.
Second, the public interest in litigating this action in the forum where the controversy arose weighs in favor of dismissal. As already noted, the controversy is local to Jamaica because the accident occurred in that forum. Defendants correctly assert that as a country with an economy that is heavily dependant on tourism, Jamaica has a substantial interest in addressing the issues presented in the instant action. These issue include, inter alia, the safety of guests at a major Jamaican resort and the operation of Jamaica's hospitals and emergency medical care services. Perez-Lang, 575 F.Supp.2d at 1352 (noting the strong public interest in resolving localized controversies involving issues of local concern in the home forum). In contrast, Florida's interest is minimal.
Third, there is a strong public interest in litigating a diversity case in a forum that is familiar with the law governing the relevant claims. Plaintiffs concede that a majority of their claims are subject to Jamaican law. (See D.E. 112 at 20.) Thus, although Plaintiffs are correct that United States federal courts routinely apply foreign law, the fact that Jamaican law is applicable to this case is an important public interest factor that warrants dismissal in favor of litigation in Jamaica. Morse, 2001 WL 34874967 (noting that the need to apply Bahamian law was a factor favoring dismissal).
Finally, there is a strong public interest in not burdening Florida citizens with jury duty for a trial in an unrelated forum. A South Florida jury would have little interest in litigation involving a Pennsylvania resident who was injured while using exercise equipment located in a Jamaican resort. While Plaintiffs may be correct in their contention that their United States citizenship allows them to bring their action in any federal court, the public interest of not burdening Florida citizens with jury duty outweighs Plaintiffs' interest in bringing the action in South Florida. Sibaja v. Dow Chemical Co., 757 F.2d 1215, 1218 (11th Cir.1985) (holding that jury duty is a burden that should not to be imposed upon the people of a community who have no relation to the parties or the place where the injuries occurred).
In sum, the public interest factors weigh heavily in favor of dismissal.
The final factor the Court must consider in the forum non conveniens analysis is whether or not that Plaintiffs can reinstate their suit in Jamaica without undue inconvenience or prejudice. See Wilson, 590 F.3d at 1269. Defendants have stipulated that they will submit to suit in Jamaica. In light of this stipulation, Plaintiffs have not provided sufficient basis for a finding that they would suffer great inconvenience or undue prejudice in a Jamaican court. See Chierchia, 738 F.Supp. at 1389.
Bloody Bay moves to dismiss the Third Amended Complaint for lack of personal jurisdiction. Generally, "[a] court must conduct a two-part inquiry when deciding the issue of personal jurisdiction." See Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000). "First, the court must determine whether the applicable state statute governing personal jurisdiction is satisfied." Id. Second, if the statute is satisfied, the court must inquire as to whether the exercise of personal jurisdiction satisfies constitutional due process concerns. See Id. "In the context of a motion to dismiss for lack of personal jurisdiction in which no evidentiary hearing is held, the plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, non resident defendant." Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988); see also Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). "Where, as here, the defendant[s] challenge jurisdiction by submitting affidavit evidence in support of [their] position, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction." Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir.2010) (citations omitted). "[W]here the evidence presented by the parties' affidavits and deposition testimony conflicts, the court must construe all reasonable inferences in favor of the nonmovant plaintiff." Morris, 843 F.2d at 492.
Plaintiffs argue that Bloody Bay is subject to personal jurisdiction under the general jurisdiction provision of the Florida long-arm statute because Bloody Bay is a parent corporation conducting business through a Florida-based subsidiary and because Bloody Bay has otherwise conducted business in Florida. See Fla. Stat. § 48.193(2) (2009). The general jurisdiction provision of the statute states:
Fla. Stat. § 48.193(2). "The `substantial and not isolated activity' requirement of the long-arm statute has been recognized by Florida courts as the functional equivalent of the continuous and systematic contact requirement for general jurisdiction under the Fourteenth Amendment Due Process Clause as discussed in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)."
Plaintiffs fail to establish a prima facie case of general jurisdiction under the longarm statute. In support of its Motion to Dismiss, Bloody Bay relies on the November 16, 2010 Affidavit of Stuart Fisher, the Director of Bloody Bay. Fisher's affidavit establishes that Bloody Bay was incorporated
Plaintiffs fail to rebut the evidence furnished by Bloody Bay. They merely speculate that Bloody Bay is the parent company of a Florida subsidiary and that Bloody Bay has conducted business in Florida directly or through agents.
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendants' Motion to Dismiss for Forum Non Conveniens (D.E. 98) and Bloody Bay Development Ltd's Motion to Dismiss for Lack of Personal Jurisdiction. (D.E. 100) are GRANTED. This action is DISMISSED with directions to Plaintiff to refile this action in Jamaica.
