Cortez v. Palace Holdings, SA
Decision Date | 22 June 2011 |
Docket Number | Lower Tribunal No. 08-60103,No. 3D09-3468,3D09-3468 |
Court | Florida District Court of Appeals |
Parties | Shahla M. Rabie Cortez, Appellant, v. Palace Holdings, S.A. de C. v. , d/b/a Palace Resorts, d/b/a Moon Palace Golf & Spa Resort, et al., Appellees. |
Not final until disposition of timely filed motion for rehearing.
An appeal from a non-final order from the Circuit Court for Miami-Dade County, Gerald D. Hubbart, Judge.
Diaz Reus & Targ and Michael Diaz, Jr., Carlos F. Gonzalez, Gary E. Davidson and Vincent W. Li, for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, and Ricardo J. Cata and Ronnie Guillen, for appellees.Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
Shahla M. Rabie Cortez seeks to reverse a non-final order granting the defendants', Palace Resorts, Inc. et al., motion to dismiss based on forum non conveniens. We affirm.
In 2006, Cortez, a California resident, booked her vacation at the Moon Palace Golf and Spa Resort in Cancun, Mexico through Washington State-based Costco Travel. While at the resort, she went for a massage at the resort spa and was sexually assaulted by the male masseuse. Cortez reported the incident to Resort employees in Mexico, to her travel agent in Mexico, and to the U.S. Consulate in Mexico. She also reported the assault to local Mexican authorities, gave a statement to the Mexican sex crimes unit, and underwent a physical exam in Mexico. Cortez returned to California and subsequently sued Palace Holdings, S.A. and its subsidiaries, Tradeco Ltd. (the travel agent), and Costco (since dismissed) in the 11th Judicial Circuit in and for Miami-Dade County for, among other things, vicarious liability for what she claims is negligent vacation packaging. The defendants filed a motion to dismiss for forum non conveniens claiming Mexico to be the more convenient forum. At the hearing on defendants' motion, the trial court took evidence in the form of affidavits from both parties and their experts and heard argument from counsel. The trial court granted the motionand dismissed the case, finding in a detailed written order that the defendants had met their burden of proof for demonstrating forum non conveniens pursuant to all of the factors set forth in Kinney Systems., Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996).1 We agree.
The decision to grant or deny a motion to dismiss on the grounds of forum non conveniens rests in the sound discretion of the trial court. See Fla. R. Civ. P. 1.061 (); Ryder System, Inc. v. Davis, 997 So. 2d 1133 (Fla. 3d DCA 2008).2 As this Court correctly articulated in Ryder:
The trial court had before it the record, the affidavits of the parties and the parties' experts, and all of the steps set forth in Kinney were argued at length by both sides at the hearing on the motion to dismiss for forum non conveniens. Each of the Kinney steps was fully addressed by the trial court in the trial court's Order Granting the Motion to Dismiss on Forum Non-Conveniens, which is the order before us on appeal. Our review of the complaint and affidavits demonstrates that, based on the test set forth in Kinney, Mexico is a more convenient forum to litigate the lawsuit than Florida. We decline to, and based on our standard of review can not, re-weigh the evidence and we conclude that the trial court did not abuse its discretion by granting the defendants' motion to dismiss on forum non conveniens grounds. 3,4 See Ryder, 997 So. 2d at 1134-35.
In reviewing the order on appeal we necessarily follow the Kinney guidelines. The first step in the Kinney analysis is to determine whether the alternate forum - in this case, Mexico - is an available and adequate forum for the Plaintiff's action. The foreign forum does not need to be perfect. Absent evidence of extreme partiality or gross inefficiency, a foreign forum is adequate if there is a satisfactory remedy and the defendant is amenable to process.5 See Hilton Int'l Co. v. Carrillo, 971 So. 2d 1001, 1005 (Fla. 3d DCA, 2008). "[A] foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American Court." Ciba-Geigy, Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1115(Fla. 4th DCA 1997); see also Diatronics, Inc. v. Elbit Computers, Ltd., 649 F. Supp. 122, 127 (S.D.N.Y. 1986) ( ).
We note that, although procedures and remedies available in Mexico may be different from or offer a less favorable outcome than our courts, this is not enough to render Mexico an inadequate forum under Kinney. Defendants' expert opined that the cause of action being brought by Cortez could also be brought in Mexico and that monetary damages could be awarded. Cortez argues that Mexico is not adequate because she cannot obtain the services of an attorney on a contingent fee basis. Although disputed by the Plaintiff's expert, the inability to obtain an attorney on a contingent fee basis does not render the foreign forum inadequate.6See Resorts Int'l, Inc. v. Spinola, 705 So. 2d 629 (Fla. 3d DCA 1998) ( ); see e.g., Coakes v. Arabian Am.Oil Co., 831 F. 2d 572, 575 (5th Cir. 1987) ( ).
Regarding the private interests involved, we recognize and agree with the trial court that there is a strong presumption against disturbing a plaintiff's choice of forum. Kinney, 674 So. 2d at 90. But that presumption is given less deference when, as here, the plaintiff is an out-of-state resident with very little, if any, contact with Florida. See Kerzner Int'l Resorts, Inc. v. Raines, 983 So. 2d. 750, 751 (Fla. 3d DCA 2008). Even with deference to the Plaintiff's choice of forum, the private interest factors weigh more heavily in favor of proceeding against the defendants in Mexico. The Appellant, a California resident, chose to file suit in Florida, a forum that is not her residence; thus, she is not entitled to a strong presumption in favor of Florida as her initial forum choice. Without this strong presumption, the private interests clearly favor dismissal and resolution in a Mexican forum where the most significant evidence and witnesses are located.7 See Value Rent-A-Car, Inc. v. Harbert, 720 So. 2d 552, 555 (Fla. 4th DCA 1998) ( ).
Because the trial court's balancing of the initial Kinney factors weighs strongly in favor of Mexico, we need not go further in our analysis. Kinney, 674 So. 2d at 92 ( ). But we do agree with the trial court that the next Kinney element, the public interest concerns, also points toward Mexico as the most favorable forum. The public interest factors in a forum non conveniens analysis, in broad terms, focus on whether the case has a general nexus with the forum sufficient to justify the forum's commitment of judicial time and resources to it. Kawasaki Motors Corp. v. Foster, 899 So. 2d 408 (Fla. 3d DCA 2005) ( ); Ciba-Geigy, Ltd, 691 So. 2d at 1124 ( ). Cortez claims that the...
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