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Maritime Law: Fla Supreme Court Weighs in On FNC Test

In Cortez v. Palace Resorts, Inc., Case No. SC11-1908 (Jun. 20, 2013), the Florida Supreme Court has provided excellent guidance on how a Florida court should handle a forum non conveniens defense. The issue, as succinctly phrased by the Court, is whether the forum non conveniens doctrine can force a United States citizen to litigate her negligence action in Mexico, when her lawsuit was filed against a corporation with its primary place of business in Florida and where the allegations of the complaint relate to an incident that took place in Mexico but center on conduct occurring in Florida. The Court answered this question in the negative. The Court explained that there is a strong presumption in favor of a plaintiff's choice of forum and this presumption does not apply to only Florida residents.  While this decision does not appear at first blush to assist foreign plaintiffs in asserting Florida as the appropriate forum for their disputes, the case does give excellent guidance on the test to be employed in the Florida courts for evaluating the forum non conveniens defense.

Facts of Case

The  Petitioner, a California resident, was sexually assaulted while vacationing in Mexico. The assault occurred while the Petitioner received a complimentary massage in exchange for her attendance at a resort's timeshare presentation. Petitioner sued the resort, a corporation with its primary place of business in Florida (the "Florida Defendants") for negligent vacation packaging. The Florida Defendants filed a motion to dismiss based on forum non conveniens, arguing that Mexico would be a more convenient forum. The trial court granted the motion. The court of appeal affirmed. The Florida Supreme Court quashed the court of appeal's decision, holding that the court misapplied the forum non conveniens analysis.

Reasoning

The Florida Supreme Court cited two reasons for quashing the Third District Court of Appeal (the "3d DCA") decision: 1) the 3d DCA misapplied the Kinney test by finding that the plaintiff, by virtue of her out-of-state residence, was not entitled to the strong presumption in the forum non conveniens analysis against disturbing the plaintiff's initial choice of an otherwise proper forum; and 3) the 3d DCA erred by failing to focus on the fact that although the lawsuit involved an assault that occurred in Mexico, the allegations of negligence derive from conduct in Florida by defendants with their primary place of business in Florida.

Conclusion

This will be a case that will be cited by defendants in foreign plaintiff cases to suggest that there is no strong presumption available to the foreign plaintiff in the forum non conveniens analysis against disturbing the plaintiff's initial choice of an otherwise proper forum. In other words, foreign plaintiffs should not be allowed to rely on this decision as it specifically references U.S. citizens or residents. Whether this argument will be accepted by the courts as a result of this decision is anyone's guess.

The language from the case that will be cited by U.S. plaintiffs is the Court's language which states "when the plaintiff is a citizen or resident of the United States and the alternative forum is a foreign country, the defendant's burden to overcome this presumption is especially high." This decision will be a helpful one for U.S. citizens attempting to bring cases against defendants which operate and cause damages outside of the U.S. but have offices within the U.S.

If you are interested at receiving a copy of this decision or reach to reach me, you may do so by writing to me at mov@chaloslaw.com.

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