776 F.2d 1512 (11th Cir. 1985), 84-5787, Sigalas v. Lido Maritime, Inc.

Docket Nº:84-5787.
Citation:776 F.2d 1512
Party Name:Anastasia SIGALAS, individually, as personal representative of the Estate of Iacovos Sigalas and Michael Sigalas, Plaintiff-Appellant, v. LIDO MARITIME, INC., the M/V ROYAL ODYSSEY, her engines, tackle, etc., in rem, Defendants-Appellees.
Case Date:November 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1512

776 F.2d 1512 (11th Cir. 1985)

Anastasia SIGALAS, individually, as personal representative

of the Estate of Iacovos Sigalas and Michael

Sigalas, Plaintiff-Appellant,

v.

LIDO MARITIME, INC., the M/V ROYAL ODYSSEY, her engines,

tackle, etc., in rem, Defendants-Appellees.

No. 84-5787.

United States Court of Appeals, Eleventh Circuit

November 26, 1985

Page 1513

C. John Caskey, Due, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, La., for plaintiff-appellant.

Frank J. Marston, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Brett Rivkind, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD [*], District Judge.

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JOHNSON, Circuit Judge:

This case presents the question whether a district court may properly grant a motion for summary judgment on grounds of forum non conveniens when, on balance, forum contacts are more strongly in favor of a foreign forum. We hold that a court can properly grant such a motion and accordingly we AFFIRM the order of the district court below.

I. BACKGROUND.

The appellant-plaintiff, Anastasia Sigalas, brought this wrongful death action on behalf of her sailor husband Iacovos under the Jones Act, 46 U.S.C.A. Sec. 688. 1 Mrs. Sigalas is a Greek citizen and domiciliary and she and her husband were at all relevant times Greek citizens and domiciliaries. Iacovos was a crew member on a luxury cruise ship, the ROYAL ODYSSEY, a Greek flag vessel owned by appellee-defendant Lido Maritime, a Liberian corporation with principal offices in Piraeus, Greece, and with 80% stock ownership by Greek nationals and domiciliaries. The ROYAL ODYSSEY was managed by Royal Cruise Line Ltd. [hereinafter Royal Cruise (Piraeus) ], a Liberian corporation with its principal place of business in Piraeus. In excess of 80% of its shares are held by Greek nationals and domiciliaries. All corporate officers of both Lido and Royal Cruise (Piraeus) are Greek nationals and domiciliaries.

The ship plied the North Atlantic and Mediterranean during spring, summer, and autumn. During the winter it called in the Caribbean and in the American ports of Miami, St. Thomas, and San Juan. In all seasons over 90% of ROYAL ODYSSEY ticket sales were to American nationals. Its annual revenues from American sales are approximately $3 million. Royal Cruise Lines (USA) Inc., an American corporation wholly owned by an American who is also a stockholder in Lido, maintained offices in San Francisco as Lido's main American ticket outlet. Lido pays Royal Cruise (USA) a commission on ticket sales, bears all operating expenses and pays the salaries, rent and advertising for the American concern. Lido and Royal Cruise Lines (Piraeus) exercise exclusive control over, inter alia, the itinerary, personnel, maintenance, insurance, supplies, provisions, financing, port agents, and port itinerary of the ROYAL ODYSSEY. The bulk of the witnesses, and almost all those who are as yet undeposed, are Greek nationals and domiciliaries. Mr. Sigalas was hired as a Third Assistant Engineer and signed a Greek contract containing a choice of forum law that stipulated that contractual disputes were to be governed by Greek law in Greek courts. 2

On December 13, 1982, during a transatlantic voyage departing from Piraeus, bound for Miami, the ROYAL ODYSSEY called at the port of Dakar, Senegal. While docked in Dakar, Mr. Sigalas began to experience cardiac disruptions and was placed in the ship's infirmary under the care of the ship's doctor, a Greek national and domiciliary, and the ship's nurse, a British national and domiciliary. After the ship set sail Mr. Sigalas suffered a heart attack and the ship returned to Dakar. Local medical facilities were inadequate, and Mr. Sigalas expired. His widow brought this suit for malpractice and seeks $1.3 million in damages.

This action was filed in rem and in personam alleging wrongful death under the Jones Act in the United States District Court for the Southern District of Florida

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on December 22, 1983. 3 The appellee tendered an answer on January 9, 1984, asserting, inter alia, the affirmative defense of forum non conveniens. Thereafter the appellant undertook extensive depositions and interrogatories. The parties were notified on May 25, 1984, that a final pretrial conference would be held on September 7, with trial at any time thereafter.

On August 21, sixteen days prior to the final pretrial session with the trial judge, appellee filed a motion for summary judgment on grounds of forum non conveniens asserted originally in its answer. Appellant filed a brief in opposition to that motion on September 4, alleging material issues of fact in controversy and offering an affidavit of counsel under Fed.R.Civ.P. 56(f) 4 on the grounds that the only evidence of applicable foreign law was provided by defendant's co-counsel. 5 Appellant also requested an extension of one week under that Rule to file an additional affidavit both on the choice of law question and on the applicability of foreign law. The trial court refused this request at the pretrial conference and heard oral argument on the motion for summary judgment that day. Later that day the district court entered an order granting summary judgment under the doctrine of forum non conveniens, noting appellee's agreement to accept process and jurisdiction of the Greek courts over this matter, to waive any statute of limitations bar, to cooperate in discovery, and to pay any judgment entered against it.

Appellant filed this appeal. By order of this Court on November 9, 1984, the parties were directed to advise the Court whether they viewed the dismissal of the district court as a final appealable order and, if not, whether there existed any other authority to hear this appeal. Briefs were filed. On December 11, this Court notified the parties that the jurisdictional questions would be considered after briefing on the merits.

This case poses six questions on appeal: A) Was the order of the district court a final appealable order? B) Did the district court err in holding that American law is inapplicable? C) Did the district court err in dismissing this action? D) Did the district court err in rejecting appellant's request under Rule 56(f) for more time to oppose defendant's affidavit on the relevant foreign law? E) Did the district court err in its disposition of claims for alleged outstanding wages? F) Did the district court take inadequate steps to secure the Letter of Undertaking issued to appellant on appellee's behalf?

II. ANALYSIS.

A. Appeals of summary judgment and forum non conveniens.

This Court has not yet considered whether, under the final judgment rule, an order granting summary judgment on grounds of forum non conveniens is final, and hence appealable under 28 U.S.C.A. Sec. 1291 (1985), when a court places conditions on the grant of summary judgment. Specifically, many courts granting motions

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of forum non conveniens make dismissal contingent on the defendant's promise to submit to the jurisdiction of another forum, to waive any statute of limitations problems, or to agree to satisfy any judgment rendered in the other court. If the defendant fails to follow this agreement, the adverse party may return to the original forum and maintain his action. Because the court below entered an order with similar reservations, we directed the parties to file briefs on this question. We now hold that the disposition of a case under the doctrine of forum non conveniens, even with certain prophylactic conditions, constitutes an appealable final order.

Disposition of a case on forum non conveniens grounds per se is a final order subject to appeal. Menendez Rodriguez v. Pan American Life Insurance Co., 311 F.2d 429, 432 (5th Cir.1962), vacated on other grounds, 376 U.S. 779, 84 S.Ct. 1130, 12 L.Ed.2d 82 (1964). But there is uncertainty whether conditions of the sort noted supra make such order interlocutory. In considering the somewhat elusive concept of finality, we find persuasive and adopt the reasoning of the Fifth Circuit in Cuevas v. Reading & Bates Corp., 770 F.2d 1371 (5th Cir.1985). In determining finality a court's analysis must focus on the underlying effect of a dismissal rather than on a parsing of the language of the order. Id. at 1375.

In this case, as in Cuevas, the trial court ordered dismissal while noting clearly that Lido had agreed to a number of conditions. But just as in Cuevas, that order

"does not purport to retain any even vestigial jurisdiction over the alleged causes of action. The order does not stay the actions pending fulfillment of its conditions; it does not provide for the court to reexamine at any future date the merits of the issues it had considered; nor does it contemplate the entry of any further orders regarding the merits of any such determinations, or provide for automatic reinstatement of the suit upon the...

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