SUAREZ, J.
Shahla M. Rabie Cortez seeks to reverse a non-final order granting the defendants', Palace Resorts, Inc. et al., motion to dismiss based on forum non conveniens. We affirm.
In 2006, Cortez, a California resident, booked her vacation at the Moon Palace Golf and Spa Resort in Cancun, Mexico through Washington State-based Costco Travel. While at the resort, she went for a massage at the resort spa and was sexually assaulted by the male masseuse. Cortez reported the incident to Resort employees in Mexico, to her travel agent in Mexico, and to the U.S. Consulate in Mexico. She also reported the assault to local Mexican authorities, gave a statement to the Mexican sex crimes unit, and underwent a physical exam in Mexico. Cortez returned to California and subsequently sued Palace Holdings, S.A. and its subsidiaries, Tradeco Ltd. (the travel agent), and Costco (since dismissed) in the 11th Judicial Circuit in and for Miami-Dade County for, among other things, vicarious liability for what she claims is negligent vacation packaging. The defendants filed a motion to dismiss for forum non conveniens claiming Mexico to be the more convenient forum. At the hearing on defendants' motion, the trial court took evidence in the form of affidavits from both parties and their experts and heard argument from counsel. The trial court granted the motion and dismissed the case, finding in a detailed written order that the defendants had met their burden of proof for demonstrating forum non conveniens pursuant to all of the factors set forth in Kinney Systems., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla.1996).
The decision to grant or deny a motion to dismiss on the grounds of forum non conveniens rests in the sound discretion of the trial court. See Fla. R. Civ. P. 1.061 ("Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse of discretion standard."); Ryder System, Inc. v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008).
997 So.2d at 1135. And, "[a]lthough we acknowledge that the presumption of correctness given to a trial court's rulings is lessened where, as here, the trial court's findings are based on affidavits rather than live testimony, we still give substantial deference to the trial court's decision, where its balancing of the Kinney factors is reasonable." Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 916 (Fla. 4th DCA 2008) (citations omitted). Indeed,
Ryder, 997 So.2d at 1135.
The trial court had before it the record, the affidavits of the parties and the parties' experts, and all of the steps set forth in Kinney were argued at length by both sides at the hearing on the motion to dismiss for forum non conveniens. Each of the Kinney steps was fully addressed by the trial court in the trial court's Order Granting the Motion to Dismiss on Forum Non-Conveniens, which is the order before us on appeal. Our review of the complaint and affidavits demonstrates that, based on the test set forth in Kinney, Mexico is a more convenient forum to litigate the lawsuit than Florida. We decline to, and based on our standard of review can not, re-weigh the evidence and we conclude that the trial court did not abuse its discretion by granting the defendants' motion to dismiss on forum non conveniens grounds.
In reviewing the order on appeal we necessarily follow the Kinney guidelines. The first step in the Kinney analysis is to determine whether the alternate forum—in this case, Mexico—is an available and adequate forum for the Plaintiff's action. The foreign forum does not need to be perfect. Absent evidence of extreme partiality or gross inefficiency, a foreign forum is adequate if there is a satisfactory remedy and the defendant is amenable to process.
We note that, although procedures and remedies available in Mexico may be different from or offer a less favorable outcome than our courts, this is not enough to render Mexico an inadequate forum under Kinney. Defendants' expert opined that the cause of action being brought by Cortez could also be brought in Mexico and that monetary damages could be awarded. Cortez argues that Mexico is not adequate because she cannot obtain the services of an attorney on a contingent fee basis. Although disputed by the Plaintiff's expert, the inability to obtain an attorney on a contingent fee basis does not render the foreign forum inadequate.
Regarding the private interests involved, we recognize and agree with the trial court that there is a strong presumption against disturbing a plaintiff's choice of forum. Kinney, 674 So.2d at 90. But
Because the trial court's balancing of the initial Kinney factors weighs strongly in favor of Mexico, we need not go further in our analysis. Kinney, 674 So.2d at 92 (finding that the third step of the analysis comes into play only if the competing private interests are substantially in balance in either forum). But we do agree with the trial court that the next Kinney element, the public interest concerns, also points toward Mexico as the most favorable forum. The public interest factors in a forum non conveniens analysis, in broad terms, focus on whether the case has a general nexus with the forum sufficient to justify the forum's commitment of judicial time and resources to it. Kawasaki Motors Corp. v. Foster, 899 So.2d 408 (Fla. 3d DCA 2005) (holding that the public interest will be served by transferring jurisdiction to either the state where the plaintiff resides, which has a greater interest in protecting its vacationing residents, or to the foreign forum that has a significant interest in punishing a wrongdoer within its jurisdiction and ensuring the safety of those who visit its resorts); Ciba-Geigy, Ltd., 691 So.2d at 1124 (finding that courts can protect their dockets from cases over which they may be able to assert jurisdiction but which lack significant connection to the forum, encourage the litigation of controversies in the localities in which they arose, and consider familiarity with the law which will be applied in considering whether to retain jurisdiction). Cortez claims that the defendants' corporate headquarters are located in Florida and that the alleged negligent marketing of the vacation package occurred in Florida. The record indicates that Palace Resorts, Inc. is a Delaware corporation that provides marketing, reservations and booking services for the Moon Palace Resort in the U.S., and had no ownership or management role in the Mexican resort. The record shows that Palace Resorts, LLC, similarly had no role in operating, managing or hiring for the Moon Palace Resort in Mexico. Tradeco, Inc., a travel agency, is a Cayman Islands corporation that had no role in operating, marketing, managing or recruiting personnel for Moon Palace Resort in Cancun, Mexico. These entities' location in Florida does not provide a general nexus to Florida sufficient to outweigh the other Kinney factors. See Tananta v. Cruise Ships Catering & Servs. Int'l, N.V., 909 So.2d 874 (Fla. 3d DCA 2004) (finding
We agree with the trial court's analysis and application of the Kinney factors to the facts of this case and conclude that the court did not abuse its discretion by dismissing the action for forum non conveniens.
Affirmed.
SHEPHERD, J., concurs.
ROTHENBERG, J. (dissenting).
Simply put, the majority affirms the trial court's order transferring a lawsuit filed by a United States citizen, who resides in California, against several Florida defendants on the basis of forum non conveniens. Because the trial court and the majority failed to afford proper deference to the plaintiff's choice of forum, and the record reflects that the defendants failed to establish that Quintana Roo, Mexico, is an adequate forum
It is undisputed that the plaintiff, Shahla M. Rabie Cortez ("Cortez" or "Plaintiff"), was sexually assaulted by a masseuse while she was vacationing at the Moon Palace Golf and Spa Resort in Cancun, which is located in Quintana Roo, Mexico. The masseuse confessed to sexually assaulting Cortez. Cortez initially filed suit against several entities, including various Florida defendants, Mexican defendants, and her travel agent. In response to the travel agent's motion for summary judgment and the Mexican defendants' motion to dismiss for lack of personal jurisdiction, Cortez voluntarily dismissed her claims against the Mexican defendants and her travel agent. "The Florida Defendants," as they refer to themselves in this action (Palace Resorts, Inc., Palace Resorts, LLC, and Tradco Ltd., Inc.), filed a motion to dismiss based on forum non conveniens, which was granted by the trial court and is the subject of this appeal.
Palace Resorts, Inc., is a Delaware corporation; Palace Resorts, LLC is a Delaware limited liability company, and Tradco, Ltd., Inc., is a foreign corporation. All three defendants are doing business in Florida and are headquartered at the same Miami address. The complaint charges the Florida Defendants with negligent vacation packaging.
In support of their motion to dismiss, the Florida Defendants submitted various items including an affidavit executed by their expert Manuel Garcia Pimentel Caraza, the deposition of Mr. Caraza taken by the Plaintiff, and an affidavit executed by Lourdes Rodriguez, the Florida Defendants' Chief Operating Officer. The Florida Defendants, by way of Ms. Rodriguez's affidavit, sought dismissal of this action by stating, after qualifying her statements as "true and correct and are made upon [her] personal knowledge," that neither Palace
The Florida Defendants and Ms. Rodriguez now admit that each and every one of these statements was false.
The record in this case reflects that the Florida Defendants and Ms. Rodriguez have a long history of deceiving or attempting to deceive the courts of this State by submitting affidavits with similar false statements, but which they now admit were false. See Weiss v. Palace Resorts, Inc., No. 07-03385 CA 11;
What has now been established by the Plaintiff is that Miami is the operational, managerial, and marketing center for the entire Palace Resorts group and that the Florida Defendants control: marketing; sales to individuals, groups, and travel agents; timeshare programs; customer service; press relations; and finance for the entire Palace Resorts Group. The Florida Defendants manage the entire U.S. market, which represents seventy percent of Palace Resorts' business; the president of most of the Palace companies lives and works in Miami; and the Florida Defendants employ nearly one hundred employees in Miami. More importantly, the plaintiff alleges that: customer complaints are investigated by the Florida Defendants at their Miami corporate headquarters; the Florida Defendants issue refunds to unhappy customers, design vacation packages for all the Palace Resort hotels, approve all marketing literature, manage hotel websites, and issue all press
In addition to the affidavits and deposition submitted by the Florida Defendants, the Plaintiff submitted an affidavit of her expert, Ovalle Piedra. Although the affidavits of the two experts materially conflict, no evidentiary hearing was conducted, the trial court made no credibility determinations, and the trial court issued its order granting the Florida Defendants' motion.
In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996) the Florida Supreme Court held that a trial court's ruling granting or denying a motion to dismiss on forum non conveniens grounds is reviewed for an abuse of discretion. However, this Court has taken the position that "the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judges [sic] analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions." Telemundo Network Grp., LLC v. Azteca Int'l Corp., 957 So.2d 705, 709 (Fla. 3d DCA 2007) (quoting Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410-11 (Fla. 3d DCA 2005), citing Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 115 (Fla. 3d DCA 2002) (Sorondo, J., concurring) citing Bacardi v. De Lindzon, 728 So.2d 309 (Fla. 3d DCA 1999), approved, 845 So.2d 33 (Fla.2002)).
While the other district courts of appeal have not adopted the abuse of discretion/de novo standard employed by this district, such a standard makes perfect sense when, as here, no live testimony was presented and where the trial court's order is, for the most part, conclusory. For example, in making its finding as to the adequacy of the foreign forum, the trial court's order states only the following:
It is well settled law that the party moving to dismiss an action on forum non conveniens grounds, which in this case is the Florida Defendants, bears the burden to prove that "a satisfactory remedy may be more conveniently sought in a jurisdiction other than the [plaintiff's chosen forum]." Fla. R. Civ. P. 1.061. This burden extends to each element of the Kinney analysis, Telemundo, 957 So.2d at 709; Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 so.2d 912, 917 (Fla. 4th DCA 2008), and "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Kinney, 674 So.2d at 89 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1946)); see also 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) (holding that a defendant invoking forum non conveniens "bears a heavy burden in opposing the plaintiff's chosen forum").
The Kinney factors that the Florida Defendants must prove are:
Fla. R. Civ. P. 1.061(a).
The trial court found that Quintana Roo, Mexico, is an available forum for purposes of a forum non conveniens analysis because the Florida Defendants agreed to process and jurisdiction in Mexico, and waived any statute of limitations defense. The trial court, however, failed to consider or address whether the court in Quintana Roo would have jurisdiction over the Florida Defendants since these defendants are not domiciled in Mexico. The Plaintiff's expert, Ms. Piedra, averred that the criteria to determine jurisdiction in Mexico in a "personal action" such as this one is the domicile of the defendant, and given that the Florida Defendants are located in Florida, Quintana Roo will not accept jurisdiction over them. The Florida Defendants' expert, Mr. Caraza, averred that Quintana Roo would have personal jurisdiction over the Florida Defendants if they operate or own a business in Quintana Roo or they do business within the state and submit to its jurisdiction. The trial court's order fails to address or resolve the conflicting evidence. Because: neither expert testified at the hearing; the trial court made no credibility determinations; the record reflects that the Florida Defendants' expert could not recall the last time he had handled a civil case in Mexico but believed it was in the 1980's; and the Florida Defendants' expert testified he never litigated in a court in the State of Quintana Roo, but was basing his testimony on the generalized law in the country of Mexico, the Florida Defendants did not satisfy their burden of proof as to whether Quintana Roo is an available forum.
The trial court's order regarding this prong of the Kinney
By basing its adequacy determination solely on the affidavits submitted by the Florida Defendants, the trial court clearly abused its discretion because some of the evidence contained in the affidavit submitted by Ms. Piedra, the Plaintiff's expert, was unrefuted, and some of the evidence was subsequently confirmed by the Florida Defendants' expert in his deposition. For example, Ms. Piedra stated that the nature of the Plaintiff's injury will require that the Plaintiff adapt her legal theory to Mexican causes of action that have rarely, if ever, been employed in the alternative forum, and she was "
Even if Cortez was able to proceed in Mexico, Ms. Piedra in her affidavit and Mr. Caraza in his deposition, both testified that the standard of proof in such cases would be exceptionally high, and to prove significant facts in a non-commercial case, such as this tort case, normally requires the testimony of two witnesses. The whereabouts of the masseuse who sexually assaulted Cortez and who is the only other witness to the assault, is unknown, leaving Cortez without a second witness to corroborate her testimony. Although the masseuse's admissions would be admissible in Florida, the Florida Defendants presented no evidence that his hearsay statements would be admissible in Quintana Roo.
Also not considered by the trial court, and uncontested in the record, was Ms. Piedra's sworn testimony that damages for a cause of action based on negligent vacation packaging or selection of supplier, where the supporting facts rely on injury caused by a sexual assault, would likely be unavailable in Quintana Roo. Additionally, damages for such an action, if maintainable,
Thus, the trial court's reliance solely on the affidavits submitted by the Florida Defendants was error and its conclusory determination that Quintana Roo is an adequate alternate forum is unsupported by the record. An alternate forum is inadequate where "the remedy offered by the other forum is clearly unsatisfactory ... [and] if the remedy there clearly amounts to no remedy at all." Kinney, 674 So.2d at 90-91. Cortez presented evidence that Quintana Roo was an inadequate forum and that any meaningful recovery was illusory. Because the Florida Defendants failed to overcome this evidence, the trial court abused its discretion in finding that the alternate forum was adequate.
In weighing the private interests, "the reviewing court always should remember that a strong presumption favors the plaintiff's choice of forum. Thus, the presumption can be defeated only if the relative disadvantages to the defendant's private interests are of sufficient weight to overcome the presumption." Kinney, 674 So.2d at 91; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (finding that
Before denying a United States citizen access to the courts of this country, the reviewing court must "require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest." SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.2004) (quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 n. 7 (11th Cir.1983)). Keeping this case in Florida would not be extreme, and it would not cause manifest injustice to the Florida Defendants. Cortez is a United States citizen, and the defendants are Florida defendants. Cortez filed her lawsuit in Florida
As this Court noted in Cardoso v. FPB Bank, 879 So.2d 1247, 1250 (Fla. 3d DCA 2004), "a forum non conveniens argument coming from a party sued where [it] resides is both puzzling and strange." The Florida Defendants, with a straight face, claim that Quintana Roo, Mexico, is a more convenient forum to litigate a United States citizen's negligent vacation packaging claim against them, although Miami is where their corporate headquarters is located, all the Palace Resort hotels' vacation packages are approved, and all customer complaints are investigated. Because Miami is the operational, managerial, and marketing center for the entire Palace Resorts group, the Florida Defendants control marketing and sales, and Miami is the record keeping center for the Mexican Palace Resorts hotels, it is difficult to understand how, based on Cortez's causes of action, Mexico would be a more convenient forum.
Coupled with these circumstances, the Plaintiff's allegations regarding her reasons
In addition, the private interest element involves practical concerns related to access to evidence, access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation. Kinney, 674 So.2d at 91. There are three deficiencies in the trial court's order that show the trial court erroneously assessed the practical concerns relating to litigating this case in Quintana Roo, Mexico.
First, although not controlling regarding
Second, the trial court's determination regarding the location of witnesses was without support in the record. The record contains no specific evidence showing trial in Mexico would alleviate hardship regarding witnesses relevant to the Florida causes of action. See Banco Inversion, S.A. v. Celtic Fin. Corp., S.A., 907 So.2d 704, 710 (Fla. 4th DCA 2005) (finding the private interests supported denying a forum non conveniens motion where "travel posed no more of a hardship on either party"). If necessary, Mexican witnesses can be deposed in Mexico, and witnesses who are employed or affiliated with the Florida Defendants are within the Florida Defendants' control and can be made available here or in Mexico. Cortez, who bears the burden of proving her case, has not argued difficulty in bringing Mexican witnesses to Florida, or California witnesses to Florida. There is no specific evidence that the Florida Defendants would suffer additional prejudice in bringing witnesses to Florida for deposition or trial, and the trial court incorrectly summarily concluded in its order "witnesses from Mexico will need to be called to testify." See Picketts, 576 A.2d at 527; accord A.D.M. Prods.,
Third, the trial court placed too much weight on the location of documents, and erroneously shifted the burden to Cortez, when it concluded that "Plaintiff has not made any showing that such documents exist in Florida," while "documents related to the incident ... are located in Mexico." It is not the Plaintiff's burden to show documents are located in Florida, and moreover, the trial court incorrectly stated there were no documents in Florida. The record already contains emails, an incident report from the Plaintiff on the Mexican resort's letterhead, and various other materials relating to the incident. The location of documents, in the present era of electronic transmission and storage, should not defeat the Plaintiff's forum choice unless there is a specific showing that documents cannot feasibly be accessed outside their place of origin. There was no such showing here. In fact, it is likely that additional relevant documents located in Mexico could be obtained by the parties regardless of where they are located. And, as stated earlier, the Florida Defendants' record keeping center is located in Miami. Thus, the trial court's conclusion regarding the location of documents was apparently based on the false statements made by the Florida Defendants about their operations in their affidavits, which should not have been considered because of their admitted falsity.
Although the trial court considered Florida's public interest in connection with "punishing wrongdoers," it failed to account for the Florida Defendants as wrongdoers, and instead focused on the attacker and the Mexican resort. The trial court correctly stated that public interest in this context relates to "whether the case has a general nexus to the forum sufficient to justify the forum's commitment of judicial time and resources to it." See Kinney, 674 So.2d at 92.
The public interest against permitting forum shopping, a practice involving the filing of cases with limited connections to Florida for strategic reasons, is not affected if this case remains in Florida. This case does not appear to be the product of improper forum shopping. This is not a case where the plaintiff sued in the alternative forum and Florida, but claims the alternative forum is inadequate. Cf. Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 114 (Fla. 3d DCA 2002). Cortez has not filed suit against the Florida Defendants in Mexico. Nor is this a case where an out-of-state Plaintiff, suing for a tort unrelated to marketing, sued a defendant whose only tie to Florida was maintaining an office "for the purpose of marketing its business pursuant to a joint venture." Cf. Kerzner Int'l Resorts, Inc. v. Raines, 983 So.2d 750, 751 (Fla. 3d DCA 2008). Rather, Cortez alleges the Florida Defendants took actions in furtherance of their breaches of duties to Cortez either wholly or partly in Florida. See Chiquita Int'l Ltd. v. Fresh Del Monte Produce, N.V., 690 So.2d 698, 699 (Fla. 3d DCA 1997) (holding that a tort suit based on a scheme allegedly "hatched" in Florida could survive a forum non conveniens attack). Although Cortez is a California resident who was harmed on vacation in Mexico, the parties who allegedly engineered the package that led her to vacation in Mexico are in Miami, and Cortez sued based on their participation and benefit from the vacation package.
In Cortez's complaint, Florida's connection to this case is alleged as the base from which the Florida Defendants harmed Cortez, in violation of Florida law. According to Cortez, the Florida Defendants' negligence led to her sexual assault. Based on her allegations, it is likely some or all of their actions occurred at or through facilities located in Florida because the Florida Defendants "conduct[ ] business on a cooperative basis" with their Mexican affiliates. Consequently, this is not a case where unspecified, and perhaps unrelated "business operations" or a company's "principal place of business" form the only tie to Florida in a dispute between out-of-state parties. Cf. Resorts Int'l, Inc. v. Spinola, 705 So.2d 629, 629 (Fla. 3d DCA 1998); see also Hilton Int'l Co. v. Carrillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008); Tananta v. Cruise Ships Catering & Servs. Int'l, N.V., 909 So.2d 874, 878-79 (Fla. 3d DCA 2005).
Further, allowing Cortez to proceed in Florida does not extend the Florida courts' reach to a dispute among foreign parties with no ties to Florida worthy of regulating. This is not a case where the accused defendants have "practically no connection" to Florida and disputed events remain to be discovered abroad. Cf. Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 411-12 (Fla. 3d DCA 2005). See also WEG Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 254 (Fla. 3d DCA 2006) (finding forum non conveniens dismissal appropriate because Florida's connection was merely "fortuitous"). In this case, there is no need to resolve disputes regarding the sexual assault that occurred in Mexico, because there is no dispute, based on the masseuse's confession to having committed the offense, that Cortez was sexually assaulted in Mexico. Instead, the
Consequently, the trial court erred when focusing on the "wrongdoers" in Mexico. To meet her burdens at trial, Cortez will need to offer evidence regarding the Florida Defendants' actions. It is the actions of the Florida Defendants in failing to prevent the assault that will be at issue in Florida. Florida has a sufficient interest in determining whether, under Florida law, Florida-based companies that violate legal duties owed to their customers and harm them should be liable under Florida's tort law.
Although the trial court's order notes that the Florida Defendants agreed to service of process in Mexico and to waive any statute of limitations defense if the action was dismissed in Miami and re-filed in Mexico, the trial court's order failed to obtain a similar stipulation by the Florida Defendants in the event Mexico concludes it has no jurisdiction over the matter. Cortez's expert testified that a Mexican court is not required to take jurisdiction over non-domiciled parties. Although this was error, counsel for the Florida Defendants represented to this Court at oral arguments that they would execute such a stipulation if the trial court's order is upheld. Consequently, that error has been cured.
The trial court erred, and its order granting the Florida Defendants' motion to dismiss the lawsuit and send Cortez to Mexico to litigate her claims against the Florida Defendants, must be reversed because it is based on conclusions, not evidence, and the evidence does not support the conclusions made by the trial court. The trial court's adequacy determination cannot be upheld where the trial court relied on an affidavit submitted by one defense witness who admitted that material representations in the affidavit were false, and another defense witness who subsequently modified the statements in his affidavit when he was deposed, and where material adequacy factors mitigating against Quintana Roo as an adequate forum were admittedly not considered by the trial court when making its determination.
The trial court also failed to "consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiff's initial forum choice." Kinney, 674 So.2d at 90. Cortez is a United States citizen, who filed her lawsuit in Miami, Florida, against three Florida Defendants, who have a strong presence in Miami and where Cortez claims her causes of action against them initiated. Cortez cannot be denied access to the courts of this country absent a strong showing by the Florida Defendants that her lawsuit against them would result in substantial inconvenience for them to litigate in her choice of forum. They have not met that burden.
Lastly, although we need not consider the public interest factors because the Florida Defendants did not satisfy their burden in demonstrating that Quintana Roo, Mexico, is an adequate forum and that the private interests weigh in favor of disturbing Cortez's choice of forum, the Florida Defendants' motion should have been denied because the public interest factors clearly tip in favor of keeping this case in Florida. I, therefore, respectfully dissent from the majority opinion affirming the trial court's order dismissing Cortez's lawsuit on the grounds of forum non conveniens.
See also Bacardi v. Lindzon, 728 So.2d 309, 312 (Fla. 3d DCA 1999); Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410-11 (Fla. 3d DCA 2005); WEG Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 253 (Fla. 3d DCA 2006). But this describes only a limited exception where the trial court did not address all of the Kinney factors, and where the reviewing court addressed the remaining factors for the first time on appeal. Ryder System, Inc. v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008). Otherwise, the standard of review remains abuse of discretion.