749 F.3d 1024 (11th Cir. 2014), 13-11616, GDG Acquisitions, LLC v. Government of Belize

Docket Nº:13-11616
Citation:749 F.3d 1024
Opinion Judge:MARCUS, Circuit Judge:
Party Name:GDG ACQUISITIONS, LLC, Plaintiff - Appellant, v. GOVERNMENT OF BELIZE, Defendant - Appellee
Attorney:For Gdg Acquisitions, Llc, Plaintiff - Appellant: Martin J. Siegel, Law Offices of Martin J. Siegel, PC, Houston, TX; Angela Valentina Arango-Chaffin, The Florida Chaffin Law Firm, Miami, FL; Arthur S. Feldman, The Feldman Law Firm P.C., Houston, TX; Andrew E. Rubenstein, Eberstein & Witherite, L...
Judge Panel:Before MARCUS, Circuit Judge, and COOGLER[*] and BOWEN,[**] District Judges.
Case Date:April 22, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1024

749 F.3d 1024 (11th Cir. 2014)

GDG ACQUISITIONS, LLC, Plaintiff - Appellant,

v.

GOVERNMENT OF BELIZE, Defendant - Appellee

No. 13-11616

United States Court of Appeals, Eleventh Circuit

April 22, 2014

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12-cv-20558-WJZ.

For Gdg Acquisitions, Llc, Plaintiff - Appellant: Martin J. Siegel, Law Offices of Martin J. Siegel, PC, Houston, TX; Angela Valentina Arango-Chaffin, The Florida Chaffin Law Firm, Miami, FL; Arthur S. Feldman, The Feldman Law Firm P.C., Houston, TX; Andrew E. Rubenstein, Eberstein & Witherite, LLP, Houston, TX.

For Government of Belize, Defendant - Appellee: Juan C. Basombrio, Dorsey & Whitney, LLP, Costa Mesa, CA; John Bond Atkinson, Krystina N. Jiron, Atkinson & Brownell, PA, Miami, FL.

Before MARCUS, Circuit Judge, and COOGLER[*] and BOWEN,[**] District Judges.

OPINION

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MARCUS, Circuit Judge:

GDG Acquisitions, LLC (" GDG" ) alleges that the Government of Belize (" Government" )

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breached a contract for the lease of office telecommunications equipment. Without reaching the merits of the dispute, the district court dismissed on two alternative grounds, pursuant to the doctrines of forum non conveniens and international comity. As we see it, the district court abused its considerable discretion in dismissing for forum non conveniens without first evaluating the significance of a forum-selection clause in the underlying contract. See A. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). Therefore, we vacate the forum non conveniens dismissal and remand to allow the district court to determine the enforceability and significance of the forum-selection clause.

In addition, we vacate the district court's dismissal on the alternative ground of international comity. " Retrospective" international comity does not apply without a judgment from a foreign tribunal or parallel foreign proceedings. See Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004). Nor does this commercial contract dispute fall within the markedly more limited reach of " prospective" international comity, a doctrine we have reserved for exceptional diplomatic circumstances. See id.

I.

A.

The tale of this case begins with an effort by the Government of Belize (the " Government" ) to reduce its expenditures on office telephone services. In 2002, Government Minister Ralph Fonseca entered into discussions with a Belizean company, International Telecommunications, Ltd. (" Intelco" ), to lease hardware equipment including telephones, cables, routers, and servers. Fonseca negotiated in Florida and in Washington, D.C., with Glenn Godfrey, a former Attorney General of Belize who was the founder and a director of Intelco. Fonseca and Godfrey reached an agreement, though the parties in this litigation now dispute whether Fonseca had the authority to contract on behalf of the Government. On December 18, 2002, Fonseca and Godfrey met in Miami to close the deal with representatives of the International Bank of Miami, a United States bank that financed the deal.

Fonseca, as the Government's " Minister of Budget Management," and Godfrey, as Intelco's " Chairman," signed a " Master Lease Agreement" obligating Intelco to lease the equipment to the Government in exchange for quarterly rent payments totaling $6,748,189.20 between 2003 and 2007. Intelco assigned these payments to the International Bank of Miami for a single upfront cash payment from the bank of $5 million. The Master Lease Agreement characterized itself as a " net lease" that required the Government to make payments unconditionally, without any right to abatement or reduction for any reason. The lease terms provided that Intelco had no obligation to provide services once the Government took possession of the phone equipment in Florida.

The Master Lease Agreement contained provisions stating that the Government waived its sovereign immunity and consented to suit in the United States:

[R]ights and obligations under this Master Lease or any Lease Schedule shall be determined exclusively in accordance with the governing laws of the State of Florida, irrespective of conflict of law principles. Lessee irrevocably submits to the exclusive jurisdiction of any of the federal and state courts in the State of Florida in any action or proceeding arising out of or relating to the Master Lease or any Lease Schedule, and Lessee

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hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any court of competent jurisdiction in the State of Florida.

The lease also contained a waiver of objections to venue or to claims of inconvenient forum:

Lessee hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to the Master Lease or any Lease Schedule and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Lessee specifically acknowledges that Miami-Dade County, Florida is a proper venue for the Lessor to bring suit against Lessee pursuant to the Master Lease or any Lease Schedule.

The Master Lease Agreement obligated the Government to return the equipment to Intelco at the end of 2007 or to continue paying rent at the same rate, month-to-month, for up to a year. After one year, the Government had to return the equipment or continue rent payments. Fonseca and Godfrey agreed to a second lease of additional equipment to run from 2003 to 2008, also for $6,748,189.20 in rent and also assigned to the International Bank of Miami, under the terms of the same Master Lease Agreement. The Government made the rental payments in full for the terms of the two leases, totaling $13.5 million. The complaint in this case alleges that the Government has not made any additional lease payments as required by the Master Lease since 2008, even though it continues to possess and use the equipment.

B.

Glenn D. Godfrey, formerly of Intelco, created GDG as a Florida limited liability company, with its principal office in Houston, Texas, on or about January 26, 2012. Godfrey remains GDG's sole member. On or about Feburary 1, Intelco assigned all of its assets to GDG, including its interest in the Belize agreements. On February 10, GDG sued the Government of Belize in the United States District Court for the Southern District of Florida. GDG alleged that the Government owes it approximately $14 million in unpaid rent, with the amount growing each month. The Government maintains that the equipment is defective and that the Master Lease Agreement is null and void because Fonseca lacked constitutional power, and thus actual authority, to sign telecommunications agreements for the Government of Belize.

The Government moved the district court to dismiss on three grounds: (1) foreign sovereign immunity pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § § 1602 et seq.; (2) the doctrine of forum non conveniens; and (3) the doctrine of international comity. The district court found first that the case should be dismissed because of forum non conveniens. According to the court, a Belizean forum was available and adequate. In addition, balancing the private factors, the original contract had been made in Belize between Belizean entities, even though rights under the agreement had been assigned to GDG, an American entity, before the suit commenced. Witnesses and...

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