Curtis v. Galakatos

• Decision Date: 29 November 2021
• Docket Number: No. 20-1846,20-1846
• Citation: 19 F.4th 41
• Parties: Cindy CURTIS; Demetre Cambouris, Plaintiffs, Appellants, v. Nicholas GALAKATOS, as owner of the M/V Galani, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

19 F.4th 41

Cindy CURTIS; Demetre Cambouris, Plaintiffs, Appellants,

v.Nicholas GALAKATOS, as owner of the M/V Galani, Defendant, Appellee.

No. 20-1846

United States Court of Appeals, First Circuit.

November 29, 2021

Thomas P. Giuffra, with whom Brian Keane, Keane Law Group, P.C., Jeremy Hellman, and Rheingold Giuffra Ruffo & Plotkin LLP were on brief, for appellants.

Bruce G. Paulsen, with whom David J. Farrell, Jr., David S. Smith, Farrell Smith O'Connell Aarsheim Aprans LLP, Brian P. Maloney, and Seward & Kissel LLP were on brief, for appellee.

Before Thompson and Lipez, Circuit Judges, and Torresen,^* District Judge.

THOMPSON, Circuit Judge.

On vacation in Greece, two U.S. citizens, Cindy Curtis and Demetre Cambouris, were ferrying along on a small boat, the M/V Marina. That is until another boat, the M/V Galani, smacked into the Marina and sunk it in the Paros-Antiparos Strait. On top of the marine wreckage, the crash also left Curtis with serious personal injuries. So she and her husband sued the U.S.-citizen owner of the Galani, Nicholas Galakatos, in federal court in Massachusetts seeking damages. Galakatos, though, told the district court that this was a suit meant for Greece--not the United States--and moved to dismiss on the ground of forum non conveniens. The district court agreed and sent the parties packing for a Greek court. Ever mindful of our deferential standard of review in this context, we nonetheless reverse.

THE FACTS

Curtis and Cambouris, spouses, hail from New York. In the summer of 2018, they crossed the pond to spend time in Greece, specifically in the area of the Paros-Antiparos Strait. While there, they (along with one other passenger) took a ride aboard Cambouris's boat, the M/V Marina, in the Strait.

That same day, Galakatos's M/V Galani, piloted by Greek citizen Dimitrios Faroupos, was also traveling the Strait. Faroupos (who we now know is the gardener at Galakatos's summer residence in Greece) was carrying six others on board the Galani at the time. When the collision occurred, Galakatos was back home in Massachusetts.

With Faroupos at the helm, the Galani plowed into the stern (i.e., the back) of the Marina, traversing its way over the passenger area before plunging back into the water on the other side. In the process, the Galani's hull and propellers struck Curtis. Nearby vessels rescued all three passengers. The Marina, though, sunk, its wreckage ultimately towed out of the Strait.

After being pulled from the water, Curtis was brought to the local medical center and shortly thereafter transferred to a hospital in Athens. Physicians there diagnosed a host of serious injuries, including: ten broken ribs, eight of which were fractured front and back; fractures of her shoulder blade

, collarbone, sternum, and lower arm; multiple fractures in her leg ; and massive wounds on her thigh from the propeller blades. Various surgical procedures kept her in the Intensive Care Unit for about a month. After being hospitalized a bit longer in Athens, she made her way home to the United States, where she was admitted to New York Presbyterian Hospital in New York City. There, she underwent even more surgical procedures. Curtis has since gone through months of physical therapy. And more than a year after the shipwreck, Curtis still required a walker to balance.

Following the crash, the Paros Port Authority investigated. In that investigation, sworn depositions or declarations have been provided in Greek by thirteen individuals. The case was then assigned to the Public Prosecutor by the First Instance Court of Syros to decide whether to prosecute anyone in the matter. At some point after the crash, Faroupos was arrested for provocation of a shipwreck and causing serious personal injury. He was later released. The criminal case is still ongoing.

About six months after the crash, Curtis and Cambouris filed suit against Galakatos in the United States. Rather than sue back in their Empire State, Curtis and Cambouris shipped up to Boston and filed suit in the federal court of Galakatos's hometown. They brought claims for maritime negligence, loss of consortium, and property damage.

Galakatos moved to dismiss the complaint for forum non conveniens, arguing that Greece, not Massachusetts, is the "most appropriate venue" for this case. In support of the motion, Galakatos submitted his own affidavit. In it, he declared that he was not in Greece at the time of the accident and felt it was important to proceed in Greece because "nearly all of the identifiable witnesses to this incident other than the Plaintiffs reside in Greece." Thus, he reasoned, trying this case in Massachusetts "would be damaging and prejudicial to [his] ability to defend the action." He also submitted an affidavit of a Greek attorney, who gave his opinion on a smattering of Greek-law issues. Importantly, the attorney also provided a list of names of the thirteen individuals who gave depositions or declarations to the Port Authority, which he obtained from Faroupos's attorney. Given these facts, Galakatos agreed to submit to the jurisdiction of an appropriate Greek court and to waive any statute-of-limitations defense.

Persuaded, the district court dismissed the case, and Curtis and Cambouris now appeal. But before we dig into the issue raised here, we first get our bearings with the multifaceted law of forum non conveniens.

THE LAW TO APPLY

Forum non conveniens gives courts the discretion "to dismiss a case because the chosen forum (despite the presence of jurisdiction and venue) is so inconvenient that it would be unfair to conduct the litigation in that place." Nandjou v. Marriott Int'l, Inc., 985 F.3d 135, 140 (1st Cir. 2021) (quoting Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991) ).¹ Dismissal on that doctrinal basis "reflects a court's assessment of a ‘range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.’ " Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 429, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) ). When a district court makes a forum non conveniens dismissal, the "practical effect" is that the plaintiffs have to re-file in a more convenient court, Nandjou, 985 F.3d at 140, perhaps a foreign one, see Sinochem Int'l, 549 U.S. at 430, 127 S.Ct. 1184 (noting that common-law forum non conveniens applies when the alternative forum is abroad).²

Forum non conveniens is a balancing act. On the one hand, a plaintiff ordinarily holds a "heavy presumption weigh[ing] in favor of [her] initial forum choice." Adelson v. Hananel, 510 F.3d 43, 53 (1st Cir. 2007). Her forum choice "will be disturbed only rarely." Nowak v. Tak How Invs., 94 F.3d 708, 719 (1st Cir. 1996). Still, it is not as though the plaintiff's choice of forum is "given dispositive weight" such that "dismissal [is] automatically barred when a plaintiff has filed suit in [her] home forum." Interface Partners Int'l, Ltd. v. Hananel, 575 F.3d 97, 102 (1st Cir. 2009) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.23, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ); see also Nandjou, 985 F.3d at 142 (noting that a U.S. forum is a "home forum" even when the plaintiff is from another state where the alternative is a non-U.S. court). It just means that there's a "heavy burden" on a defendant to show why the balance favors vetoing the plaintiff's forum choice. Nandjou, 985 F.3d at 141 (quoting Adelson, 510 F.3d at 52 ).

To meet that heavy burden, a defendant must show, on the other side of the scale, that the plaintiff's chosen forum is "so inconvenient that transfer is needed to avoid serious unfairness." See id. (emphasis in original) (quoting Adelson, 510 F.3d at 52 ). Indeed, we recognize that a plaintiff's forum choice may " ‘vex, harass, or oppress the defendant by inflicting upon [her] expense’ or unnecessary trouble." Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ). Yet "a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown." Id. (quoting Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) ). To overcome that presumption, the oppressiveness and vexation must be "out of all proportion to plaintiff's convenience," or the administrative and legal problems too much for the court to bear. Am. Dredging Co. v. Miller, 510 U.S. 443, 447–48, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (quoting Piper, 454 U.S. at 241, 102 S.Ct. 252 ).

Meeting that heavy burden involves two steps. First, the defendant has a burden to show that an "adequate alternative forum exists." Shinya Imamura v. Gen. Elec. Co., 957 F.3d 98, 106 (1st Cir. 2020). "[A]n adequate alternative forum exists when ‘(1) all parties can come within that forum's jurisdiction, and (2) 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.’ " Id. (quoting Mercier v. Sheraton Int'l, Inc. (Mercier I ), 935 F.2d 419, 424 (1st Cir. 1991) ). If the defendant fails to show there's another suitable court to hear the plaintiff's case, that's the end of the line for her forum non conveniens motion. See Nandjou, 985 F.3d at 141.

Second, if there's an adequate alternative forum, the defendant must also show that a balance of public and private interest factors "strongly favor litigating the claim in the second forum." Nandjou, 985 F.3d at 142 (citation omitted) (emphasis in original). If, on balance, the interest factors are about equal, that's not enough to surmount the defendant's heavy burden. See id. at 141.

As for the public interest factors that get thrown onto the scale, the Supreme Court has taught us this: we are to...