Franklin Vasquez v. Yii Shipping Company, Ltd. , 559 F. App'x 841 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16395
Argument Calendar
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D.C. Docket No. 0:11-cv-60248-CMA
FRANKLIN VASQUEZ,
Plaintiff-Appellant,
versus
YII SHIPPING COMPANY, LTD.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 14, 2014)
Before PRYOR, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
This appeal requires us to decide whether the district court erred when it
dismissed a seaman’s complaint against his Bahamian employer because the
employer lacked a base of operations in the United States. Franklin Vasquez sued
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YII Shipping Company, Ltd., for negligence under the Jones Act, 46 U.S.C.
§ 30104, unseaworthiness, maintenance and cure, and failure to treat after he
suffered an injury on a vessel in Bahamian waters. YII Shipping moved to dismiss
the complaint for forum non conveniens. YII Shipping argued that federal
maritime law did not apply to Vasquez’s complaint. In support of that argument,
YII Shipping alleged that it did not have a base of operations in the United States
because it derived only 15 percent of its income from shipping cargo between
Florida and the Bahamas, Bahamian citizens owned 60 percent of the company, a
Bahamian citizen and resident ran the daily operations of the company, and the
company was incorporated and had its principal place of business in the Bahamas.
The district court dismissed Vasquez’s complaint based on forum non conveniens.
We affirm.
I. BACKGROUND
Vasquez, a resident of the Dominican Republic, worked for YII Shipping as
a member of the crew aboard the merchant vessel Yeocomico, a cargo ship
registered in Honduras and owned by YII Shipping. In 1999, YII Shipping
interviewed and hired Vasquez in Port Dania, Florida, where he signed his initial
employment contract. Vasquez signed his later employment contracts, including
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the contract that governed his employment when his injury at work occurred, in the
Bahamas.
YII Shipping is incorporated in the Bahamas, and its principal place of
business is Nassau, Bahamas. Between 2005 and 2009, dozens of companies based
in the United States hired YII Shipping to ship merchandise from Florida to the
Bahamas. YII Shipping rents warehouse space in Port Everglades, Florida, where it
directs customers to send their cargo. From June 24, 2004, through December 13,
2009, vessels owned or chartered by YII Shipping made 241 visits to ports of the
United States. YII Shipping derives approximately 15 percent of its total income
from shipping between the United States and the Bahamas.
Four shareholders own YII Shipping. Lisbon Higgs owns two of the five
shares of YII Shipping, which amounts to a 40 percent interest in the company.
Libson is a dual citizen of the United States and the Bahamas and resides in
Hollywood, Florida. Libson retired from YII Shipping in 2002 and plays no role in
the daily operations of the company. Vaughn Higgs, Libson’s son, manages YII
Shipping and owns a single share of the company. Vaughn is a Bahamian citizen
and resides in the Bahamas, although he maintains a phone number and mailing
address in Florida for personal use. Two other Bahamians own the remaining two
shares.
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YII Agency, Inc., a Florida corporation, exclusively manages YII Shipping
as its sole client, and YII Shipping pays YII Agency for its management services.
YII Agency maintains its offices and agents in Fort Lauderdale, Florida, and YII
Shipping has, at times, listed the Fort Lauderdale address of YII Agency as its own
address. Lisbon owns YII Agency and signed the office lease for YII Agency, and
Vaughn oversees the bank accounts for YII Agency. But YII Shipping does not
direct the rate calculations charged by YII Agency.
In June 2007, Vasquez suffered severe burns to the left side of his body from
an explosion on the Yeocomico while it was docked in Freeport, Bahamas.
Vasquez first received treatment in the Bahamas, then in the Dominican Republic,
and finally in Florida, two months after the accident and on his own initiative. The
Yeocomico had sailed exclusively inter-island routes in the Bahamas when
Vasquez’s accident occurred and had done so for the previous two years.
Vasquez first filed his suit in a Florida court, but that court dismissed his
complaint based on the doctrine of forum non conveniens under Florida law. A
Florida court of appeals affirmed the dismissal.
Vasquez then filed a complaint against YII Shipping in the district court,
which dismissed the complaint based on the federal doctrine of forum non
conveniens and the Rooker-Feldman doctrine. Vasquez v. YII Shipping Co., Ltd.,
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692 F.3d 1192, 1195 (11th Cir. 2012); see D.C. Court of Appeals v. Feldman, 460
U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.
Ct. 149 (1923). We vacated that dismissal. Vasquez, 692 F.3d at 1195. We
concluded that the Rooker-Feldman doctrine was inapplicable because of
differences between the Florida doctrine of forum non conveniens and the
corresponding federal doctrine. Id. at 1195–96. And we concluded that the analysis
by the district court of forum non conveniens was incomplete. Id. at 1199. We
remanded for the district court to “consider all of YII’s business contacts with
Florida and with the rest of the United States in determining whether the base of
operations requirement as well as all other factors have been fulfilled pursuant to
[Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731 (1970)].” Id. at 1200.
On remand, the district court correctly identified the following seven factors
to determine whether federal maritime law applied: the place of the wrongful act,
the flag under which the ship sails, the allegiance of domicile of the injured party,
the allegiance of the defendant shipowner, the place of the contract between the
injured party and the shipowner, the accessibility of a foreign forum, and the law
of the forum. Lauritzen v. Larsen, 345 U.S. 571, 583–92, 73 S. Ct. 921, 928–33
(1953). As we required in our mandate, the district court also considered the eighth
factor identified by the Supreme Court in Rhoditis and found that YII Shipping did
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not have a “substantial base of operations” in the United States. The district court
also alluded to its earlier ruling that the other seven factors “weigh heavily against
applying the maritime law of the United States, including the Jones Act.” The
district court ruled that federal maritime law did not apply to Vasquez’s complaint
and dismissed based on forum non conveniens.
II. STANDARDS OF REVIEW
Three standards of review apply to this appeal. First, we review for clear
error the finding of the district court that YII Shipping did not have a substantial
base of operations in the United States. Membreño v. Costa Crociere S.P.A., 425
F.3d 932, 935 (11th Cir. 2005). Second, we review de novo whether the maritime
law of the United States applies to a controversy. Id. Third, we review for abuse of
discretion whether the district court erred when it dismissed the complaint based
on the federal doctrine of forum non conveniens. Id. at 935–36.
III. DISCUSSION
If a plaintiff files a complaint that invokes admiralty jurisdiction, a district
court may not dismiss the complaint based on forum non conveniens if federal
maritime law applies. Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195
(11th Cir. 1983). If federal maritime law does not apply, then the district court
considers the traditional criteria of forum non conveniens to determine whether it
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should exercise jurisdiction over the case. Id. at 1195. Vasquez argues that federal
maritime law governs his complaint because YII Shipping has a base of operations
in the United States, but we disagree.
The district court did not clearly err when it found that YII Shipping did not
have a substantial base of operations in the United States. YII Shipping is a
Bahamian company that derives an insubstantial percentage of its income from
business transacted through use of ports in the United States. And Vasquez’s
arguments that the district court failed to consider material evidence about this
issue fail.
Vasquez argues that the district court should have found a base of operations
in the United States because Libson and Vaughn owned 60 percent of YII
Shipping, but that argument misconstrues the relevant ownership interests for a
finding of a base of operations. Libson, the only owner who is a citizen or resident
of the United States, owns only 40 percent of YII Shipping and retired in 2002 and
is the president of YII Shipping in name only. But Vaughn, who manages the day-
to-day operations of YII Shipping, is not a citizen of, and does not reside in, the
United States. He maintains a mailing address and telephone number in Fort
Lauderdale, but those contacts do not transform him into a resident of Florida.
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Vasquez also argues that YII Shipping initially hired him in Fort Dania,
Florida, but the location of his initial employment contract does not determine the
base of operations of a shipowner. And Vasquez signed the operative contract for
the date of his injury in the Bahamas, not Florida.
Vasquez also argues that the district court should have pierced the corporate
veil between YII Shipping and YII Agency because YII Shipping exerts an
inordinate amount of control and “domination” over YII Agency, but he fails to
explain how either company fraudulently used the corporate form to cause his
injury. Under Florida law, courts may not pierce the corporate veil absent proof of
misconduct. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120–21 (Fla.
1984); see also Membreño, 425 F.3d at 936 (“Corporate distinctions generally may
not be disregarded absent fraud, improper conduct, illegality, or bad faith.”). A
plaintiff must prove that “the shareholder dominated and controlled the corporation
to such an extent that the corporation’s independent existence was in fact non-
existent and the shareholders were in fact alter egos of the corporation,” the
corporate form was “used fraudulently or for an improper purpose,” and “the
fraudulent or improper use of the corporate form caused injury to the claimant.”
Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. Dist. Ct. App. 2008)
(quoting Seminole Boatyard, Inc. v. Christoph, 715 So. 2d 987, 990 (Fla. Dist. Ct.
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Ohio App. 1998)). Vasquez offered no proof of fraudulent use of the corporate form or a
related cause of his injury.
Vasquez does not dispute that several factors weigh against the application
of the maritime law of the United States: Vasquez suffered his alleged injury in the
Bahamas; the Yeocomico flies under the Honduran flag; Vasquez is domiciled in
the Dominican Republic; YII Shipping is incorporated in the Bahamas and has its
principal place of business in Nassau; Vasquez signed the operative shipping
articles in the Bahamas; the Bahamas provides an accessible forum; and YII
Shipping has resisted defending this suit in the United States. Vasquez instead
urges us to hold that a shipowner’s base of operations trumps all other choice of
law considerations, but, as we have already explained, the district court did not
clearly err when it found that YII Shipping did not have a substantial base of
operations in the United States. The district court did not abuse its discretion when
it dismissed Vasquez’s complaint for forum non conveniens.
IV. CONCLUSION
We AFFIRM the dismissal of Vasquez’s complaint for forum non
conveniens.
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