RABIE CORTEZ v. PALACE HOLDINGS DE

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Shahla M. RABIE CORTEZ, Appellant, v. PALACE HOLDINGS, S.A. DE C.V., d/b/a Palace Resorts, d/b/a Moon Palace Golf & Spa Resort, et al., Appellees.

No. 3D09–3468.

    Decided: June 22, 2011

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.Diaz Reus & Targ and Michael Diaz, Jr., Carlos F. Gonzalez, Gary E. Davidson and Vincent W. Li, for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, and Ricardo J. Cata and Ronnie Guillen, for appellees.

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).1 We agree.

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).2 As this Court correctly articulated in Ryder:

The Florida Supreme Court has specified that the standard of review is abuse of discretion, and we follow that standard. The only exception, a limited one, is when the trial court did not address (and therefore did not exercise any discretion) regarding one or more of the Kinney factors. In that situation, this court has the latitude to address the previously-unaddressed Kinney factors for the first time on appeal in the interest of judicial economy and efficiency.

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,

[f]or practical reasons it is necessary that the rule be as the Fourth District [in Bridgestone/Firestone ] has said. If the review were de novo in every case in which the factual record is based on affidavits rather than live testimony (which is true in almost every forum non conveniens case), the litigants would have an incentive to appeal every forum non conveniens order in hopes that the appellate panel, considering the matter de novo, would reach a different ruling. The abuse of discretion standard is entirely appropriate.

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.3 ,4 See Ryder, 997 So.2d at 1134–35.

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.5 See Hilton Int'l Co. v. Carrillo, 971 So.2d 1001, 1005 (Fla. 3d DCA, 2008). “[A] foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American Court.” Ciba–Geigy, Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1115 (Fla. 4th DCA 1997); see also Diatronics, Inc. v. Elbit Computers, Ltd., 649 F.Supp. 122, 127 (S.D.N.Y.1986) (holding that “the prospect of a lesser recovery does not justify refusing a motion to dismiss on the ground of forum non conveniens”).

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.6 See Resorts Int'l, Inc. v. Spinola, 705 So.2d 629 (Fla. 3d DCA 1998) (finding that plaintiff's inability to obtain contingent fee arrangement in the foreign forum was not relevant to forum non conveniens analysis); see e.g., Coakes v. Arabian Am. Oil Co., 831 F.2d 572, 575 (5th Cir.1987) (holding that the lack of a contingent-fee system is not a determinative factor in the forum non conveniens analysis).

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 that presumption is given less deference when, as here, the plaintiff is an out-of-state resident with very little, if any, contact with Florida. See Kerzner Int'l Resorts, Inc. v. Raines, 983 So.2d. 750, 751 (Fla. 3d DCA 2008). Even with deference to the Plaintiff's choice of forum, the private interest factors weigh more heavily in favor of proceeding against the defendants in Mexico. The Appellant, a California resident, chose to file suit in Florida, a forum that is not her residence; thus, she is not entitled to a strong presumption in favor of Florida as her initial forum choice. Without this strong presumption, the private interests clearly favor dismissal and resolution in a Mexican forum where the most significant evidence and witnesses are located.7 See Value Rent–A–Car, Inc. v. Harbert, 720 So.2d 552, 555 (Fla. 4th DCA 1998) (holding that the strong presumption against disturbing plaintiffs' initial forum choice diminishes where the plaintiff has chosen a foreign forum that is not convenient for the plaintiff).

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 that the location of a corporate marketing arm in Florida was of no consequence in analyzing forum non convenience where it had nothing to do with the tort in the foreign forum); see also Bautista v. Cruise Ships Catering & Servs. Int'l., N.V., 350 F.Supp.2d 987, 991 (S.D.Fla.2003) (“In today's climate of worldwide economics and the internet, there are few companies that have no connection with the United States. However, such a connection alone is insufficient to justify the United States' becoming the Court for all tort disputes in the world.”). This is so particularly where the plaintiff is not a Florida resident and this action, which is essentially a tort action, finds most of the witnesses and documents necessary for trial to be located in the foreign forum. See Kerzner, 983 So.2d at 752.

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.

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 under the facts and circumstances of this lawsuit, or that the private and public factors weigh in favor of litigating the plaintiff's causes of action in Mexico, I respectfully dissent.

THE FACTS

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 Resorts Travel, Inc., d/b/a Palace Resorts, Inc., nor Palace Resorts, Inc:

13. received any funds of any kind as a result of Plaintiff's stay at the Moon Palace Golf and Spa Resort.

14. were involved in the booking or reservation of Plaintiff's stay at the Moon Palace Golf and Spa Resort.

15. does business, or have ever done business as ․ Palace Resorts․

and that

19. all booking and reservations for the Palace Resorts Hotels in Mexico—including the Cancun Palace Hotel—are done in Mexico through the “General Reservation Center” located at the Moon Palace, Cancun, Mexico. The reservations are booked by Palace Resorts, S.A. de C.V. [a Mexican corporation].

20. Any incident reports that were prepared by the Moon Palace Golf and Spa Resort's management and any company documents relevant to the incident described in Plaintiff's Complaint are all located in Mexico.

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;8 Discipio v. Operadora Palace Resorts, S. de R.L. de C.V., No. 06–26242 CA 10;9 Shapiro v. Palace Resorts, Inc., No. 06–23603 CA 8;10 Kobryn v. Palace Resorts, Inc., No. 06–06555.11

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 releases at their Miami headquarters; and their Miami headquarters is the record-keeping center for the Mexican Palace Resorts hotels.

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.

STANDARD OF REVIEW

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.S. 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:

[B]ased on the affidavits supplied by Defendants, the Court is of the opinion that the State of Quintana Roo, Mexico, will provide Plaintiff with an adequate remedy. Moreover, the parties will be provided with adequate access to evidence and relevant sites. As such, this Court finds that Cancun, State of Quintana Roo, Mexico is an adequate forum.

BURDEN OF PROOF

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 Co. v. Gilbert, 330 U.S. 501, 508 (1946)); see also Sinochem Int'l. Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (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:

(1) ․ that an adequate alternative forum exists which possesses jurisdiction over the whole case, including all of the parties;

(2) ․ that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiff['s] initial forum choice;

(3) if the balance of private interests is at or near equipoise, [the] factors of public interest tip the balance in favor of trial in the alternate forum; and

(4) ․ plaintiff[ ] can reinstate [her] suit in the alternate forum without undue inconvenience or prejudice.

Fla. R. Civ. P. 1.061(a).

THE FLORIDA DEFENDANTS DID NOT MEET THEIR BURDEN

A. Availability and adequacy of the foreign forum(1) The availability prong

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.

(2) The adequacy prong

The trial court's order regarding this prong of the Kinney analysis provides no analysis and makes no findings. Instead, the order states in conclusory fashion that “based on the affidavits by Defendants, the Court is of the opinion that the State of Quintana Roo, Mexico, will provide Plaintiff with an adequate remedy.” (emphasis added). Although the trial court's order is legally deficient, failure to perform the requisite analysis or to make specific findings is not always fatal on appellate review. See Wood v. Bluestone, 9 So.3d 671, 673 (Fla. 4th DCA 2009) (finding that “[i]f the record is sufficient to review the trial court's ultimate determination, the scarcity of the text of the order will not matter); R.J. Reynolds Tobacco Co. v. Carter, 951 So.2d 105, 107 (Fla. 3d DCA 2007) (concluding that although the trial court failed to address the Kinney factors, because the record was sufficiently developed and the facts relative to the issue of forum non conveniens were basically undisputed, remand was unnecessary). In the instant case, however, the trial court's determination regarding the adequacy prong of the Kinney analysis is not only defective because it is a conclusory statement devoid of any findings, it is fatally flawed because it is based solely on the affidavits supplied by the Florida Defendants, and the facts related to forum non conveniens were disputed.

There are four issues that are fatal to the trial court's reliance on the Florida Defendants' affidavits as the sole source for its conclusions. First, as already stated, the Florida Defendants' Chief Operating Officer, Lourdes Rodriguez, was deposed subsequent to her affidavit, and in her deposition she admitted that many of the statements she made under oath in her affidavit were false. It was, therefore, error to rely on the false statements contained in Ms. Rodriguez's affidavit. Second, Mr. Caraza, the Florida Defendants' expert, was also deposed and the reliability of his affidavit statements were called into question by his deposition answers. Third, Mr. Caraza's affidavit statements were further called into question by the counter-affidavit submitted by Ms. Piedra, the Plaintiff's expert. Fourth, many material statements made by Ms. Piedra in her affidavit regarding the adequacy of Quintana Roo, as a forum to address the Plaintiff's claims, were unrefuted and therefore should have been considered by the trial court. The failure to perform the requisite analysis and to consider all the evidence submitted based on this record was a clear abuse of discretion.

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 “not aware of a single case brought as a civil action in the Courts of Mexico involving allegations of personal injury as a result of sexual assault.” (emphasis added). These matters are handled criminally in Mexico. The Florida Defendants' expert confirmed during his deposition that he was also unaware of such a case. This lack of precedent, and reliance on a theoretical possibility of recovery, casts doubt on the adequacy of Quintana Roo, Mexico, as a forum for Cortez's causes of action. See Telemundo, 957 So.2d at 710 (concluding that substitute causes of action in the alternate forum amounted to no remedy at all, in part based on lack of precedent). Accord Jackson v. Grupo Industrial Hotelero, S.A., No. 07–22046, 2008 WL 4648999, *10–11 (S.D.Fla. Oct. 20, 2008) (denying a motion to dismiss based on forum non conveniens in an intellectual property dispute where the causes of action and remedies at issue were unsettled in Mexico).

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, would be limited to between $5,000 and $15,000, and because of the low damages and difficulty in proof, finding counsel to represent Cortez would be difficult. Moreover, Ms. Piedra testified that firms practicing personal injury law are rare. An award of $5,000 to $15,000 would not even cover Cortez's costs, which include transportation to and lodging in Mexico to litigate this case.

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.

B. Private interests

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 Co. v. Gilbert, 330 U.S. 501, 508 (1947) (finding that a plaintiff's choice of forum should rarely be disturbed “unless the balance is strongly in favor of the defendant”) (emphasis added). Here, because Cortez resides in California, and she filed her complaint in Florida, where the Florida Defendants are located, the trial court treated her as a foreign plaintiff and afforded little deference to her chosen forum. This was error.

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 where the Florida Defendants have their headquarters and where they conduct substantial business and operate and manage the Palace entities.

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 for suing in Florida, and the evidence in this record, are sufficient to preserve deference to her forum choice. “Where a corporation is actually carrying on business in the state and plaintiffs make an offer of proof concerning the defendants' in-state activities which supports the allegations that the tortious conduct occurred in the state, the corporate connection to the state is more than tenuous, and weighs against dismissal.” See Picketts v. Int'l Playtex, Inc., 576 A.2d 518, 525 (Conn.1990). As a result, Cortez's forum choice deserved great deference. See SME, 382 F.3d at 1101 (holding that the “presumption in favor of the plaintiffs' initial forum is at its strongest when the plaintiffs are citizens, residents, or corporations of this country); Iragorri v. United Techs. Corp., 274 F.3d 65, 71–72 (2d Cir.2001) (en banc) (concluding that when considering what degree of deference to accord a United States plaintiff's choice of forum where the forum is different from the one in which the plaintiff resides, a sliding scale should be used. The more it appears that the plaintiff's choice of forum was based on reasons the law recognizes as valid, the greater the deference will be given to the plaintiff's forum choice).

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 adequacy of the forum, Cortez's undisputed difficulty in obtaining counsel on a contingency basis is relevant to our analysis of whether Quintana Roo is an inconvenient forum for this suit. See Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1271–72 (11th Cir.2009) (reversing a dismissal on forum non conveniens for among other reasons, the trial court's failure to consider financial hardship from prosecuting in the alternative forum as part of the private interest factors). There is no evidence refuting Cortez's contention that a contingency retainer would be hard to secure because of the nature of her case, and moreover, the Florida Defendants' expert conceded that such a retainer might not suffice and an attorney might require ongoing payment of costs and fees. In contrast, the Florida Defendants have not provided any specific evidence that trying this case in Florida would be cost prohibitive.

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., Inc. v. Solomon, 831 So.2d 259, 260 (Fla. 3d DCA 2002) (“The trial court must evaluate the relevancy and materiality of the potential testimony that a listed witness may bring to the issues.”). Florida law also permits testimony at trial through videotaped or transcribed depositions under appropriate circumstances. And the record shows it may be difficult to compel witnesses to testify in Mexico due to constraints on the process of compelling testimony in Mexico.

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.

C. Public interests

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 92.12 In this case, the public interest factors as to Cortez's claims against the Florida Defendants, not the Mexican resort or others in Mexico who may also be subject to suit there, favor keeping Florida as the forum. The Florida Defendants do business in Florida in a manner directly relevant to this suit because their actions allegedly occurred in Florida. Additionally, the Florida Defendants have regularly appeared in the Florida courts to address issues regarding their operations.13 Florida also has an interest in ensuring that harmful actions originating in Florida, which may violate duties imposed by Florida law, are properly addressed in Florida courts. Thus, as relevant here, the public interest favors keeping this case in Florida.

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 Florida Defendants' actions will be the focus of Cortez's lawsuit.

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.

D. Undue inconvenience or prejudice

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.

CONCLUSION

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.

FOOTNOTES

1.  The Florida Rules of Civil Procedure added Rule 1.061 after Florida's adoption of the federal doctrine of forum non conveniens in Kinney. The Florida Supreme Court in Kinney set forth a four-step analysis to determine whether an action should be dismissed on forum non conveniens grounds: (1) The court must establish whether an adequate alternate forum exists to try the case; (2) The trial judge must consider all relevant factors of private interest while recognizing the strong presumption against disturbing the plaintiffs' initial choice of forum; (3) If the trial judge finds the balance of private interests in equipoise or near equipoise, he or she must determine whether the factors of public interest tip the balance in favor of another forum; and (4) If the trial judge decides that the balance favors another forum, he or she must ensure that plaintiffs can reinstate their suit in the other forum without undue inconvenience or prejudice. The Court Commentary to the Rule states that Rule 1.061 should be interpreted in light of Kinney.

2.  The dissent misapplies Judge Sorondo's concurrence in Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111 (Fla. 3d DCA 2002), to suggest that that this Court must follow a mixed abuse of discretion/de novo standard of review in any forum non conveniens case in which the factual record is based on affidavits rather than live testimony. In Aerolineas, Judge Sorondo stated that,[i]n Kinney, the Florida Supreme Court adopted the federal test for forum non conveniens determinations and held that a trial court's ruling granting or denying a motion to dismiss on these grounds would be reviewed under an abuse of discretion standard. 674 So.2d at 93–94. This has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge's analysis and whether the appellate record is sufficient to allow reviewing courts to reach their own conclusions.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.

3.  See In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir.1987), the United States Court of Appeals for the Fifth Circuit defined the trial court's duty in this area as follows:While we recognize that the decision to grant or deny a motion to dismiss for forum non conveniens is within the discretion of the district court, it should be an exercise in structured discretion founded on a procedural framework guiding the district court's decisionmaking process ․ our duty as an appellate court in reviewing forum non conveniens decisions is to review the lower court's decisionmaking process and conclusion and determine if it is reasonable; our duty is not to perform a de novo analysis and make the initial determination for the district court.

4.  The alleged false representations referred to in the dissent were all part of the record and were before the trial court. It is not within our standard of review to analyze and reweigh this evidence.

5.  According to Rule 1.061, the defendants are deemed to automatically stipulate that the action will be treated in Mexico as if it had been filed in Mexico on the same date it was actually filed in Florida. Also, the defendants in this case have all agreed to submit to the jurisdiction of Mexico. See Mursia Invs. Corp. v. Industria Cartonera Dominicana, 847 So.2d 1064, 1067 (Fla. 3d DCA 2003).

6.  “ ‘Private interests' do not involve consideration of the availability or unavailability of advantageous legal theories, a history of generous or stingy damage awards, or procedural nuances that may affect outcomes but that do not effectively deprive the plaintiff of any remedy. Indeed, it is entirely irrelevant that the alternative forum does not duplicate or approximate the American jury system, so long as a fair mechanism for trial exists in a broad and basic sense.” Kinney, 674 So.2d at 91.

7.  Of significant consideration is the fact that this incident occurred in Mexico; the witnesses and most of the evidence concerning the tort are all located in Mexico. The examining doctor and his report are in Mexico, the American Consulate report and the police report are located in Mexico, and the hotel employees associated with the event are all likely to be residents of Mexico.

8.  (stating that “[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V.”).

9.  (stating that “[n]one of the [Florida] Defendants received funds of any kind as a result of Ms. Discipio's stay at the Aventura Spa Palace in Mexico”).

10.  (stating that “[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V.,” the same representation made in the Weiss case).

11.  (stating that “[a]ll bookings and reservations for the Palace Resorts Hotels in Mexico are done in Mexico through the general reservation center located at Moon Palace, Cancun, Mexico; the reservations are booked by Palace Resorts, S.A. de C.V,” as in the Weiss case, and stating that “[n]one of the [Florida] Defendants received funds of any kind as a result of [Plaintiff's] stay,” as in the Discipio case).

12.  The public interest is only considered when “the advantages and disadvantages of the alternative forum will not significantly undermine or favor the private interests of any party” when compared with Florida, where the suit was filed. See Kinney, 674 So.2d at 91. Here, as to Cortez's claims against the Florida Defendants, suit in Mexico would place Cortez at a substantial disadvantage, and thus the private interest inquiry settles the issue. Because the trial court considered the issue in its discretion, it is appropriate to address the trial court's analysis on appeal as well.

13.  The Florida Defendants swore in support of false statements offered to the trial court regarding important facts regarding the Florida Defendants' operations, which would have shown their ties to Florida were directly relevant to this case. Therefore, unlike in Tananta v. Cruise Ships Catering & Services International., the Florida Defendants did not “organize [their] empire” to avoid Florida. 909 So.2d 874, 881 (Fla. 3d DCA 2005). Rather, they lied about the facts to avoid a Florida forum. Cortez's complaint purports to target the Florida Defendants for actions occurring in whole or in part in Florida.

SUAREZ, J.

SHEPHERD, J., concurs.

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