Abeid-Saba v. Carnival Corp. , 184 So. 3d 593 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed January 27, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D13-2092 & 3D13-2223
Lower Tribunal Nos. 12-26076 & 12-26072
________________
Denise Abeid-Saba, et al.,
Appellants/Appellees/Cross-Appellees,
vs.
Carnival Corp., Carnival PLC, Costa Crociere, S.p.A., Costa
Cruise Lines, Inc., and Joseph Farcus Architect, P.A.,
Appellees/Appellants/Cross-Appellants.
Appeals from the Circuit Court for Miami-Dade County, Norma S.
Lindsey and Spencer Eig, Judges.
Napoli Bern Ripka Shkolnik & Associates, LLP, and Louise R. Caro,
for appellants/appellees/cross-appellees.
Arnold & Porter, LLP, and Thad T. Dameris, (Houston) and David J.
Weiner (Washington, D.C.); Blank Rome LLP and John D. Kimball (New
York), for appellees/appellants/cross-appellants.
Before LAGOA, SALTER, and FERNANDEZ, JJ.
LAGOA, J.
Appellant, Denise Abeid-Saba (“Abeid-Saba”), appeals from a non-final
order granting Appellees, Carnival Corporation, Carnival Corporation & plc, Costa
Cruise Lines, Inc., Costa Crociere, S.p.A., and Joseph Farcus, Architect, P.A.’s
(collectively, “Carnival”), motion to dismiss for forum non conveniens.
Appellants/Cross-Appellees, Carnival, and Appellee/Cross-Appellant,
Geoffrey Scimone (“Scimone”), appeal from a non-final order granting in part and
denying in part Carnival’s motion to dismiss for forum non conveniens. 1
For purposes of this appeal, we consolidate the respective orders on appeal
in case number 13-2092 (“Abeid-Saba”) and case number 13-2223 (“Scimone II”).
For the reasons set forth below, we affirm the order in Abeid-Saba and
reverse in part and affirm in part the order in Scimone II.
I. FACTUAL AND PROCEDURAL HISTORY
Both Abeid-Saba and Scimone II involve claims brought by passengers
aboard the Italian-flagged cruise ship, MS Costa Concordia (the “Concordia” or
“Ship”). On January 13, 2012, the Concordia departed Civitavecchia, Italy to
begin a seven-day voyage to Savona, Italy. Both complaints allege that on January
13, 2012, the Ship ran aground after her Captain, Francesco Schettino, deviated
from the planned course to execute a maneuver known as a “bow” or “sail-by
1 Neither Abeid-Saba nor Scimone contest the dismissal of the non-U.S. plaintiffs.
Indeed, counsel for Scimone conceded this issue during oral argument. As such,
we affirm without further discussion both the Abeid-Saba order and the Scimone II
order dismissing the non-U.S. plaintiffs.
2
salute.”2 During the course of the maneuver, the Concordia collided with an
underwater reef in Italian territorial waters causing catastrophic damage to her hull.
This precipitated the evacuation of 3206 passengers, of whom approximately 100
were from the United States, and over 1000 crewmembers. Most evacuees were
taken to nearby Giglio Island. Following the accident, a number of Italian agencies
commenced investigations to uncover the cause or causes of the accident.
Within weeks of the accident, several passengers filed suit in the Eleventh
Judicial Circuit Court of Florida. See Scimone v. Carnival Cruise Lines, No. 12-
3496 CA 40 (Fla. 11th Cir. Ct. Jan. 27, 2012) (“Scimone I”). After the number of
plaintiffs grew, however, plaintiffs voluntarily dismissed Scimone I, divided the
passengers into two groups, and on July 5, 2012, re-filed two separate actions:
Abeid-Saba and Scimone II.
Abeid-Saba involves fifty-seven plaintiffs, of whom five are United States
residents. Scimone II involves fifty-two plaintiffs, of whom seventeen are United
States residents. Both groups of plaintiffs alleged twelve identical counts3 against
five named defendants: Carnival Corporation, a Panamanian Corporation with its
2 This maneuver is also called a near-shore salute, and brings a ship close to shore
to salute those on land.
3 The counts were: (1) maritime negligence, (2) gross negligence, (3) negligent-
product defect (under Italian law), (4) professional negligence, (5) intentional
failure to warn, (6) intentional failure to abandon ship, (7) intentional failure to
notify authorities, (8) corporate pattern and practice, (9) intentional infliction of
emotional distress, (10) negligent retention, (11) fraudulent misrepresentation, and
(12) fraudulent inducement.
3
principal place of business in Florida; Carnival Corporation & plc, incorporated in
England and Wales with its principal place of business in London, England; Costa
Cruise Lines, a Florida corporation with its principal place of business in Florida;
Costa Crociere, S.p.A., a subsidiary of Carnival Corporation & plc and an Italian
company, that has its principal place of business in Genoa, Italy; and Joseph
Farcus, a Florida-licensed architect.4
On September 26, 2012, Carnival removed Abeid-Saba and Scimone II from
the Eleventh Judicial Circuit Court of Florida to the United States District Court
for the Southern District of Florida under the Class Action Fairness Act, and
subsequently filed a motion to dismiss for forum non conveniens. On February 15,
2013, the U.S. District Court remanded both cases to the Eleventh Judicial Circuit
without resolving Carnival’s motion to dismiss on the merits.5 After remand,
Carnival moved to dismiss both Abeid-Saba and Scimone II, again based on forum
non conveniens.
A. THE TRIAL COURT’S ORDER IN ABEID-SABA
On May 20, 2013, the trial court in Abeid-Saba conducted a hearing on
Carnival’s motion to dismiss. In support of its motion, Carnival submitted several
4Unnamed John Does and John Does Inc. were also listed as defendants.
5The United States Court of Appeals for the Eleventh Circuit affirmed the District
Court’s remand. See Scimone v. Carnival Corp., 720 F.3d 876, 878-79 (11th Cir.
2013) (stating removal was improper under the Class Action Fairness Act and
other federal statutes because neither the state court nor the plaintiffs had
“proposed to try 100 or more persons’ claims jointly”).
4
sworn declarations and exhibits. In opposition, Abeid-Saba submitted a single
sworn affidavit, along with various news articles and documents, none of which
were sworn. Subsequent to the hearing, the trial court issued an extensive and
thorough order containing detailed factual findings and extensive legal analysis, in
which the trial court applied the four-part forum non conveniens test set out in
Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), as
well as the Florida Supreme Court’s opinion in Cortez v. Palace Resorts, Inc., 123
So. 3d 1085 (Fla. 2013). The trial court also analyzed each of the twelve counts
asserted by the Abeid-Saba plaintiffs for purposes of evaluating the third prong of
Kinney as modified by Cortez.
In its written order, the trial court found: (i) Italy is an adequate alternate
forum; (ii) as to the private interest factors, Carnival presented positive evidence
that material injustice would result if the case were litigated in Florida; (iii) the
public interest factors favored litigating the case in Italy; and (iv) the Abeid-Saba
plaintiffs could reinstate their claims in Italy without undue burden. Carnival’s
motion to dismiss was granted as to all plaintiffs—U.S. and non-U.S. alike.
B. THE TRIAL COURT’S ORDER IN SCIMONE II
The trial court in Scimone II conducted a hearing on Carnival’s motion to
dismiss on May 20, 2013, subsequent to which, it issued its order. The trial court
5
found: (i) Italy is an adequate alternate forum; (ii) the private interest factors
favored dismissal with respect to the non-U.S. plaintiffs, but not with respect to the
U.S. plaintiffs; (iii) the public interest factors favored dismissal with respect to the
non-U.S. plaintiffs, but not with respect to the U.S. plaintiffs; and (iv) removing
the case from Florida to Italy would be unduly burdensome to the U.S. plaintiffs
because they would have to transport evidence from the United States to Italy and
have the evidence translated.
Abeid-Saba appeals the order granting Carnival’s motion to dismiss.
Scimone and Carnival appeal from the order granting in part and denying in part
Carnival’s motion to dismiss. Carnival argues both cases should be dismissed
under the forum non conveniens doctrine. We agree. For the reasons set forth
below, we affirm the order in Abeid-Saba and affirm in part and reverse in part the
order in Scimone II.
II. STANDARD OF REVIEW
We review orders granting or denying a motion to dismiss on forum non
conveniens grounds for an abuse of discretion. See Fla. R. Civ. P. 1.061(a); Rolls-
Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012).
III. ANALYSIS
6
In Kinney, the Florida Supreme Court adopted the federal forum non
conveniens test “[i]n response to [the] perceived burden being placed on Florida
trial courts to adjudicate disputes unrelated to Florida.” Cortez, 123 So. 3d at
1091. The four-part test provides:
[1] As a prerequisite, the court must establish whether an adequate
alternative forum exists which possesses jurisdiction over the whole
case. [2] Next, the trial judge must consider all relevant factors of
private interest, weighing in the balance a strong presumption against
disturbing plaintiffs' initial forum choice. [3] If the trial judge finds
this balance of private interests in equipoise or near equipoise, he
must then determine whether or not factors of public interest tip the
balance in favor of a trial in [another] forum. [4] If he decides that the
balance favors such a . . . forum, the trial judge must finally ensure
that plaintiffs can reinstate their suit in the alternative forum without
undue inconvenience or prejudice.
Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). In Cortez, the
Florida Supreme Court modified Kinney’s third prong—the public interest
prong—and required Florida courts to consider the public interest factors
irrespective of whether the private interest factors are “in or near equipoise.” See
Cortez, 123 So. 3d at 1093 (holding that “public interest factors should always be
considered as part of [a forum non conveniens] analysis”) (adopting the approach
taken by the United States Court of Appeals for the Eleventh Circuit in SME
Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 n.5
(11th Cir. 2004)); see also Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.
2001) (explaining that while the “private [interest] factors are ‘generally
7
considered more important’ . . . the better rule is to consider both” private and
public interest factors).
The hallmark of a forum non conveniens inquiry is convenience; therefore,
“controlling weight cannot be given to any one factor in the balancing process or
the doctrine would lose much of the flexibility that is its essence.” La Seguridad v.
Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). “The defendant attempting
to dismiss the action on forum non conveniens grounds bears the burden of proof
on each element of the Kinney analysis.” Telemundo Network Grp., LLC v.
Azteca Int’l Corp., 957 So. 2d 705, 709 (Fla. 3d DCA 2007).
We begin our analysis by first considering the trial court’s order in Abeid-
Saba.
A. AVAILABLE AND ADEQUATE ALTERNATIVE FORUM6
6 In four cases, federal district courts have dismissed actions against Carnival
stemming from the Costa Concordia accident based on forum non conveniens
grounds. See Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-CIV, 2012 WL
4477504 (S.D. Fla. Sept. 26, 2012), aff'd, 523 F. App’x 651 (11th Cir. 2013)
(Giglio Sub, an Italian Corporation, and Francesco Onida, an Italian citizen, filed a
class action on behalf of fishermen, property owners, business owners, and wage
earners on Giglio Island, alleging negligence, gross negligence and nuisance);
Perez v. Carnival Corp., No. 12-23194-CIV (S.D. Fla. Feb. 22, 2013) (one-hundred
fifty-four plaintiffs, two of which were residents of the United States, alleged
negligence, negligent training, and negligent retention); Warrick v. Carnival Corp.,
No. 12-61389-CIV, 2013 WL 3333358 (S.D. Fla. Feb. 4, 2013) (five plaintiffs, all
residents of the United States, alleged breach of contract, unjust enrichment,
fraudulent inducement, fraudulent misrepresentation, maritime negligence, gross
negligence, intentional infliction of emotional distress, negligent hiring, negligent
supervising, and negligent retention); Lobaton v. Carnival Corp., No. 12-cv-598
(N.D. Ill. Sept. 11, 2013) (Lobaton, a resident of Peru, sought to bring various tort
8
While Abeid-Saba does not argue on appeal that Italian civil courts are
unavailable or inadequate, we nonetheless briefly address this prong of the four-
part forum non conveniens inquiry as it was raised before the trial court.
The first prong of the forum non conveniens analysis entails two separate
considerations: whether the alternative forum is available and whether it is
adequate. See Cortez, 123 So. 3d at 1091. “An alternative forum is ‘available’
when that forum can assert jurisdiction over the litigation sought to be transferred.”
Id. at 1091-92. The “chief concern” here is the “ability to perfect service of
process.” Kinney, 674 So. 2d at 90.
In both Abeid-Saba and Scimone II, Carnival stipulated to accept service of
process and agreed to submit to the jurisdiction of Italian courts. Carnival also
agreed to toll the statute of limitations and respect any post-appeal judgments
entered by Italian courts. The Abeid-Saba trial court, therefore, conditioned its
dismissal on Defendants honoring their stipulations and on the Italian court
accepting jurisdiction. We find that the trial court did not abuse its discretion in
finding that an alternative forum is available.
We now turn to the question of whether Italy is an adequate forum. “An
adequate forum need not be a perfect forum.” Satz v. McDonnell Douglas Corp.,
244 F.3d 1279, 1283 (11th Cir. 2001). “An alternative forum is adequate if it
actions individually and as a class representative.).
9
provides for litigation of the subject matter of the dispute and potentially offers
redress for plaintiffs' injuries.” King v. Cessna Aircraft Co., 562 F.3d 1374, 1382
(11th Cir. 2009). An alternate forum is inadequate where the available remedies
are “clearly unsatisfactory” or where there is “no remedy at all.” Satz, 244 F.3d at
1283 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981)). “[S]ome
inconvenience or the unavailability of beneficial litigation procedures similar to
those available in the federal district courts does not render an alternative forum
inadequate.” Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 829 (2d Cir.
1990) (quoting Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 895 (S.D.N.Y.
1981)).
The Abeid-Saba plaintiffs argued that Italian civil courts are inadequate
because the litigation will take longer in Italy and each plaintiff will be required to
obtain individual counsel. After hearing conflicting testimony on these points, the
trial court in Abeid-Saba found that: (i) “a delay of ‘many, many’ years is a legally
insufficient standard on which to judge a foreign forum’s remedy as inadequate in
a highly complex case,” Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111,
1117 (Fla. 4th DCA 1997); and (ii) the lack of a class action procedure does not
render a forum inadequate, Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-CIV,
2012 WL 4477504 (S.D. Fla. Sept. 26, 2012), aff'd, 523 F. App’x 651 (11th Cir.
10
2013). We find the trial court did not abuse its discretion in finding that Italy was
an adequate alternative forum.
B. PRIVATE INTEREST FACTORS
If a trial court determines that an adequate alternative forum exists, it must
then “consider all relevant factors of private interest, weighing in the balance a
strong presumption against disturbing plaintiffs' initial forum choice.” Cortez, 123
So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). Generally, an examination of
the private interests involves four concerns: “access to evidence, access to
witnesses, enforcement of judgments, and the practicalities and expenses
associated with the lawsuit.” 123 So. 3d at 1092.
Abeid-Saba argues that the trial court abused its discretion with regard to
private interest factors by: (i) not affording plaintiffs proper deference regarding
their choice of forum, (ii) improperly accessing the sources of proof, and (iii)
failing to account for witness availability.
1. Presumption in Favor of Plaintiffs’ Choice of Forum
As part of its analysis of the private interest factors, the trial court must
“[weigh] in the balance a strong presumption against disturbing plaintiffs' initial
forum choice.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90).
“This presumption in favor of the plaintiffs' initial forum choice in balancing the
private interests is at its strongest when the plaintiffs are citizens, residents, or
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corporations of this country.” SME Racks, 382 F.3d at 1101. The Eleventh
Circuit has held that a reviewing court “require[s] positive evidence of unusually
extreme circumstances, and should be thoroughly convinced that material injustice
is manifest before exercising any . . . discretion as may exist to deny a United
States citizen access to the courts of this country.” SME Racks, 382 F.3d at 1101
(quoting La Seguridad, 707 F.2d at 1308 n.7). Accord Cortez, 123 So. 3d at 1096.
“A citizen's forum choice should not be given dispositive weight, however.” Piper
Aircraft Co., 454 U.S. at 256 n.23.
Rather than treating the plaintiffs’ choice of forum as a factor “weighing in
the balance” of the presumption in favor of its choice, Abeid-Saba asks the choice
be analyzed in isolation and be given conclusive and dispositive force. This is
contrary to what the law requires. In analyzing the private interest factors in the
case, the trial court acknowledged the presumption in favor of the five Abeid-Saba
plaintiffs who are U.S. residents. The trial court concluded that, on balance,
litigating in Florida would result in material and manifest injustice to Carnival
because the vast majority of evidence is located in Italy, as are virtually all of the
witnesses.
2. Access to Evidence and Witnesses
When assessing the access to evidence and the availability of witnesses, “the
[trial] court must scrutinize the substance of the dispute . . . to evaluate what proof
12
is required, and determine whether the pieces of evidence cited by the parties are
critical, or even relevant, to the plaintiff's cause of action and to any potential
defenses to the action.” Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988).
“Perhaps the most important ‘private interest’ of the litigants is access to
evidence.” Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003).
Here, the trial court undertook a count-by-count analysis of the twelve
causes of action brought by Abeid-Saba and found that “even given the heightened
presumption in favor of the United States residents’ choice of forum . . .
Defendants have presented positive evidence that litigating in this court would
result in a material, manifest injustice due to the access to relevant evidence and
the comparative cost and difficulty of presenting [in Florida].”
Specifically, as to the causes of action, the trial court found:
 Counts I & II (Maritime Negligence and Gross Negligence): As to the
elements of breach, causation, and damages, the evidence is
“overwhelmingly located abroad,” and “[m]uch of the evidence for all of the
claims will be in Italian.”
 Count III (Negligence—Product Defect): “[A]lleges a violation of the Italian
civil code and seeks damages pursuant to Italian law.”
 Count IV (Professional Negligence): Fincantieri (an Italian corporation with
headquarters in Italy that designed and built the Concordia). “Virtually all
13
of the evidence” relating to the alleged design flaws of safety and emergency
equipment is located in Italy.
 Counts V, VI, VII, & IX (Intentional Failure to Warn; Intentional Failure to
Abandon Ship; Intentional Failure to Notify Authorities; and Intentional
Infliction of Emotional Distress): “[N]early all of the potential eye
witnesses, except for the five United States resident plaintiffs herein are in
Italy. In addition, the ship and all of the documents collected during the
Italian government’s inquiry into the Accident are in Italy.”
 Count VIII (Corporate Pattern and Practice): To the extent this claim may
require evidence that is located in Florida, Defendants have stipulated to
produce evidence in Italy.
 Count X (Negligent Retention): Captain Schettino is located in Italy, as are
all of the records and documents pertaining to his retention.
 Counts XI & XII (Fraudulent Misrepresentation and Fraudulent
Inducement): Most of the evidence is located in Italy, and to the extent
evidence is located in Florida or elsewhere, Defendants have stipulated to
produce the evidence in Italy.
Abeid-Saba argues that the trial court ignored that fact that much of the
documentary evidence that would be required to litigate this dispute can be
produced in English. Abeid-Saba also claims that under the Italian criminal code,
14
any person injured as a result of the crash will be entitled to access the evidence
used in the criminal proceedings. We find this argument without merit, as it does
not change the fact that the evidence is located in Italy. Additionally, all of the
non-documentary evidence is located in Italy. For example, the wreckage, voyage
data recorder, bridge voice recorder, ship cameras, and the vessel’s electronic
navigation system are all in the custody on Italian authorities.
With respect to the availability of witnesses, Abeid-Saba argues that a
handful of potential defense witnesses and five of the plaintiffs are located in the
United States. The location of these witnesses is, of course, a factor the trial court
must consider; however, the fact that witnesses are here in the United States does
not end the inquiry. Further, the location of the vast majority of other potential
witnesses led the trial court to conclude that Italy is the more convenient forum.
Of the 3206 passengers aboard the Costa Concordia, two-thirds are European
citizens. None of the 1223 crewmembers are United States citizens. Any number
of these passengers and/or crewmembers are potential witnesses.
Just as important as the availability of potential eye witnesses is the
availability of potential non-party witnesses, especially those responsible for safety
inspections and certifications, manufacturing and designing the Ship, and those
who trained the Costa Concordia’s crew. Fincantieri – Cantieri Navali Italiani
15
S.p.A. (the ship’s builder), the Italian Administration, and Italian Classification
Society RINA, S.p.A. (“RINA”) are all located in Italy.
An abuse of discretion occurs “when the judicial action is arbitrary, fanciful,
or unreasonable or where no reasonable man would take the view the trial court
adopted.” Johnson v. State, 47 So. 3d 941, 943 (Fla. 3d DCA 2010). There is
nothing “arbitrary, fanciful, or unreasonable” about the findings and conclusions
contained in the trial court’s well-reasoned order. The trial court in Abeid-Saba
considered each cause of action and determined that the evidence required to
litigate the dispute could be more conveniently obtained in Italy, and that the vast
majority of the witnesses are located in Italy. As such, we find that the trial court
did not abuse its discretion.
C. PUBLIC INTEREST FACTORS
The third step in the forum non conveniens inquiry is to “determine whether
or not factors of public interest tip the balance in favor of a trial in [another]
forum.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). While it
was once assumed that trial courts need only consider the public interest factors if
the private interest factors were at or near equipoise, the Florida Supreme Court
modified the rule, holding “public interest factors, including Florida's interest in
the dispute, should always be considered as part of the forum non conveniens
analysis.” Cortez, 123 So. 3d at 1097 (emphasis added). See also Leon, 251 F.3d
16
at 1311 (stating “even though the private factors are ‘generally considered more
important’ than the public factors, the better rule is to consider both factors in all
cases”). The focus of the public interest factors is “whether the case has a general
nexus with the forum sufficient to justify the forum's commitment of judicial time
and resources to it.” Kinney, 674 So. 2d at 92 (quoting Pain v. United Techs.
Corp., 637 F.2d 775, 791 (D.C. Cir. 1980)).
Abeid-Saba claims a nexus between this dispute and Florida because
although the Concordia never sailed out of Florida (or within United States
territorial waters for that matter), other Costa Crociere vessels have. Abeid-Saba
also claims that the safety of cruise ships, generally, is paramount in Florida, and
that Florida has a history of resolving disputes involving cruise ships. Finally,
Abeid-Saba argues that because cruise lines frequently select Florida in their forum
selections clauses, ipso facto, Florida is the most convenient venue. Abeid-Saba’s
generalized arguments are weak. As Carnival points out, this case is not about
other Costa ships, other cruise lines, other cruises, or the cruise line industry in
general. Additionally, the forum-selection clause included on the Costa Concordia
tickets listed Genoa, Italy as the forum for litigation.
Abeid-Saba relies on Cortez for the proposition that Florida is the proper
forum. Cortez, however, is distinguishable. In Cortez, the sole plaintiff was a
United States citizen who sued three Florida defendants for their allegedly
17
negligent sale and marketing of a vacation package. Cortez, 123 So. 3d at 1088.
All three defendants maintained their principal place of business in Florida, id. at
1089, and the allegedly negligent conduct took place in Miami. Id. at 1097.
Defendants, claiming the conduct took place in Mexico, moved for dismissal based
on forum non conveniens. The trial court granted the motion and this Court
affirmed. See Rabie Cortez v. Palace Holdings, S.A. de C.V., 66 So. 3d 959 (Fla.
3d DCA 2011). The Florida Supreme Court quashed this Court’s decision, finding
that all of the alleged negligent action took place in Florida, and “Florida [had an]
interest in hearing disputes involving negligent conduct [that took place in the
State.]” Cortez, 123 So. 3d at 1098.
Unlike Cortez, here, there are fifty-seven plaintiffs, fifty-two of whom are
not residents of the United States. Abeid-Saba’s allegations “center on conduct by
non-Florida Defendants in Italy.”7 Virtually all of the allegedly negligent conduct
took place in Italy.
7 The trial court further found that neither Carnival Corporation nor Costa Cruise
Lines (Florida defendants) were involved in the: “hiring, training, promotion, or
supervision of the Costa Concordia’s crew”; “operation, charter, design, or
construction” of the Ship; “implementation of safety standards”; or “evacuation
procedures.” “The Costa Concordia is owned and operated by Costa Crociere, an
Italian company.” The trial court also found that Joseph Farcus, a Florida-licensed
architect, was the interior designer and did not design the naval architecture. Even
if these factual findings were erroneous, the fact that some of the defendants have
strong ties to Florida is not dispositive. See Cortez, 123 So. 3d at 1097 (“the fact
that the defendants are located in this country, and especially in this state, is one
indication that it would be less burdensome for the defendants to defend suit in this
country than it would be for the plaintiff to litigate in a foreign country”) (citation
18
Additional facts make clear that this litigation has a close nexus to Italy,
“sufficient to justify [Italy’s] commitment of judicial time and resources to it.”
Kinney, 674 So. 2d at 92. The Concordia is owned and operated by Costa
Crociere, S.p.A., an Italian corporation. Costa Crociere, the Concordia, its crew,
and Captain Schettino were regulated, inspected, and certified by Italian
authorities. The trial court’s order stated “[t]he Costa Concordia’s design was
approved and certified by the Italian Administration and RINA as satisfying Italian
and international standards.” Italian authorities are currently conducting
investigations into the accident. Additionally, four of the other five cases relating
to the accident have been dismissed by courts in the United States on forum non
conveniens grounds. Litigating such similar cases based on the same accident and
involving the same evidence in two different fora would seem to be a tremendous
waste of judicial resources.
Finally, this is not a case is which Abeid-Saba would have to utilize obscure
causes of action that are essentially not cognizable in the Italian courts, nor will
Abeid-Saba’s potential causes of action in Italy amount to no remedy at all. See
Cortez, 123 So. 3d at 1098. As the trial court explained, “Italian law offers
numerous avenues for Plaintiffs to seek and recover damages . . . . Italian
omitted) (internal quotation marks omitted).
19
procedural law offers substantial rights and protections to litigants that ensure trials
are fair, open, and efficient.”
Based on these facts, the trial court in Abeid-Saba concluded that “Florida
does not have a strong interest in this dispute.” Thus, even when accounting for
the strong presumption in favor of Abeid-Saba’s choice of forum, the trial court
found that the public interest factors favor litigation in Italy. We find that the trial
court’s conclusion is reasonable, well-founded, and should not be disturbed.
D. REINSTATEMENT OF CLAIMS IN ITALY
The final prong of a forum non conveniens inquiry requires the trial court to
“ensure that plaintiffs can reinstate their suit in the alternative forum without undue
inconvenience or prejudice.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So.
2d at 90). Abeid-Saba’s argument that refiling in Italy will cause undue
inconvenience is without merit as Carnival stipulated to accept service of process
and agreed to submit to the jurisdiction of Italian courts. Carnival also agreed to
toll the statute of limitations, respect any post-appeal judgments entered by Italian
courts, and make relevant evidence available in Italy. Because these type of
stipulations favor dismissal, we conclude that the trial court in Abeid-Saba did not
abuse its discretion in finding that the plaintiffs can reinstate their suit in the
alternative forum of Italy without undue inconvenience or prejudice. See Cortez,
123 So. 3d at 1094 (the fourth prong of a forum non conveniens inquiry is
20
generally satisfied when “the courts of the alternative forum are genuinely open
and available to provide a convenient remedy and . . . the moving party stipulate[s]
to treat the action in the new forum as though it had been filed in that forum on the
date it was filed in Florida”); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335 (11th
Cir. 2011) (same).
E. THE SCIMONE II ORDER
We now turn to the trial court’s order in Scimone II. We affirm the trial
court’s order dismissing the non-U.S. plaintiffs, as Appellants do not appeal the
dismissal of the non-U.S. plaintiffs.
We reverse, however, the order regarding the U.S. plaintiffs as the trial court
failed to conduct a proper “private interest” analysis. “A correct ‘private interest’
analysis begins with the elements of the plaintiff’s causes of action. The court
must then consider the necessary evidence required to prove and disprove each
element. Lastly, the court should make a reasoned assessment as to the likely
location of such proof.” Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003); see
also Warrick v. Carnival Corp., No. 12-61389-CIV, 2013 WL 3333358 (S.D. Fla.
Feb. 4, 2013). Because the trial court in Scimone II failed to consider the
necessary evidence required to prove and disprove each element of the plaintiffs’
causes of action, we find that the trial court abused its discretion. Accordingly, we
reverse that portion of the trial court’s ruling in Scimone II.
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IV. CONCLUSION
In conclusion, the trial court’s order in Abeid-Saba is affirmed and the trial
court’s order in Scimone II is affirmed in part and reversed in part. However, as
Abeid-Saba and Scimone II have been consolidated, we must address what the trial
court in Scimone II must do upon remand.
Plaintiffs in both Abeid-Saba and Scimone II are represented by the same
counsel.8 At no point in the proceedings before either the trial court or before this
Court has counsel suggested that the evidence to be presented on the Kinney or
Cortez factors differs in any material way between Abeid-Saba and Scimone II.
Accordingly, rather than require the parties and the trial court to expend further
resources unnecessarily in Scimone II, we remand Scimone II with instructions
that the trial court grant Carnival’s motion to dismiss for forum non conveniens
based on the trial court’s analysis of the Kinney and Cortez factors in the Abeid-
Saba case.
AFFIRMED in Abeid-Saba; AFFIRMED IN PART and REVERSED IN
PART in Scimone II and REMANDED with instructions.
8Indeed, the two cases originated as a single case, but were subsequently split into
two separate actions.
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