Vega v. Cruise Ship Catering & Service International , 279 F. App'x 946 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12532 JUNE 4, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20592-CV-ASG
LUIS VEGA,
Plaintiff-Appellant,
versus
CRUISE SHIP CATERING AND SERVICE INTERNATIONAL, N.V.,
PRESTIGE CRUISES, N.V.,
Defendants-Appellees,
COSTA CROCIERE, SPA,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 4, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Luis Vega (“Vega”), a Colombian seaman, appeals from the district court’s
denial of his motion to reinstate his suit against Appellees for alleged violations of
the Jones Act, 46 App. U.S.C. § 688 (2006). The district court initially dismissed
Vega’s suit on the basis of forum non conveniens. Vega filed his motion to reinstate
the case almost one year after the dismissal, never having appealed the original
dismissal of his case. Because we find that the district court did not abuse its
discretion in denying Vega’s motion to reinstate the case, we affirm the holding of the
district court.
I. FACTS
Vega, a Colombian citizen, signed an employment contract with Appellee
Cruise Ship Catering Services International (“Catering Services”) in Colombia.
Catering Services placed Vega as a crewman aboard Appellee Prestige Cruises’
ship “Costa Marina.” In September 1996, while aboard the Costa Marina, Vega
fell from his bunk bed and was injured. The Costa Marina was located off the
coast of Italy when the injury occurred. Vega was initially treated by a physician
on board the ship, and a few days later underwent surgery for a shoulder fracture
in Italy. Vega returned to Colombia once he had recuperated from the surgery.
Three years later, Vega moved to the United States and underwent additional
medical treatment for his injury.
In March 2003, Vega filed suit against Defendants-Appellees under the
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Jones Act. The district court dismissed Vega’s suit on the grounds of forum non
conveniens, but specified that the dismissal was without prejudice so that Vega
could refile if none of the alternative fora accepted his suit. Vega filed a Notice of
Appeal from the district court’s order, but later dismissed it with prejudice.
Almost a year after the dismissal of the case on forum non conveniens grounds,
Vega filed a motion to reinstate the case. Attached to the motion were affidavits
supporting Vega’s contention that none of the alternative fora identified by the
district court in its order of dismissal allow for contingency fee arrangements.
Because Vega could not afford to pay a retainer, the lack of contingency fee
arrangements prevented him from filing suit in any of the alternative fora. The
district court denied Vega’s motion to reinstate the case, and Vega now appeals.
II. DISCUSSION
We review the district court’s dismissal of Vega’s motion to reinstate the
case for abuse of discretion. See United States v. Gomez, 908 F.2d 809, 810 (11th
Cir. 1990) (holding that a district court did not abuse its discretion in reopening a
criminal case to admit additional testimony); Gas Ridge, Inc. v. Suburban Agric.
Props., Inc., 150 F.2d 363, 366 (5th Cir. 1945) (stating that a motion to reopen a
case is committed “to the sound discretion of the judge, and his action will not be
disturbed in the absence of a showing that it has worked an injustice in the
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cause”). On appeal, Vega challenges only the district court’s alleged failure to
consider his weak financial position and the lack of a contingent fee system in the
alternative fora.
Initially, we note that the district court held that the instant motion to
reinstate the case constituted an untimely motion to reconsider the district court’s
September 29, 2005, order dismissing the case for forum non conveniens. We
conclude that the district court did not abuse its discretion in this regard.
Moreover, we cannot conclude that the district court abused its discretion
with regard to the merits. As the district court noted, the financial position of the
plaintiff and lack of contingency fee arrangements in the alternative fora are
among many factors to be considered in the forum non conveniens analysis, and
weak ones at that. See Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1430
(11th Cir. 1996) (“If the lack of a contingent fee system were held determinative,
then a case could almost never be allowed to be dismissed because contingency
fees are not allowed in most forums.”) (quoting Coakes v. Arabian Am. Oil Co.,
831 F.2d 572, 576 (5th Cir. 1987)). The plaintiff’s financial inability to file suit in
an alternative forum or the lack of contingency fee arrangements does not, on its
own, render a forum unavailable. See id. In this case, the district court weighed
the appropriate forum non conveniens factors and found that those factors, as a
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whole, supported dismissal in favor of another forum. We cannot find that the
district court abused its discretion in denying Vega’s motion. Accordingly, the
judgment of the district court is
AFFIRMED.1
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Appellant’s request for oral argument is DENIED. Appellees’ motion for damages and
costs is DENIED.
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