Hilton Intern. Co. v. Carrillo

• Decision Date: 09 January 2008
• Docket Number: No. 3D07-1773.,3D07-1773.
• Citation: 971 So.2d 1001
• Parties: HILTON INTERNATIONAL CO. and Hilton Hotels Corporation, Appellants, v. August CARRILLO, et al., Appellees.
• Court: Florida District Court of Appeals

971 So.2d 1001

HILTON INTERNATIONAL CO. and Hilton Hotels Corporation, Appellants, v. August CARRILLO, et al., Appellees.

No. 3D07-1773.

District Court of Appeal of Florida, Third District.

January 9, 2008.

Greenberg Traurig and Hilarie Bass, Elliot H. Scherker, Mark A. Salky and Daniel M. Samson, Miami; Kardaras and Kelleher, for appellants.

Motley Rice and Robin R. Anderson, Ronald L. Motley, Jodi Westbrook Flowers, Donald A. Migliori, Michael E. Elsner, Justin B. Kaplan, Miami, and John M. Eubanks, for appellees.

Before COPE, GREEN, and SALTER, JJ.

SALTER, J.

Appellants Hilton International Company and Hilton Hotels Corporation ("Hilton") appeal a non-final order denying their motion to dismiss for forum non conveniens. Because we find the appellees' connection to Florida too attenuated, and because there are adequate and more convenient forums in Israel and Egypt, we reverse the trial court and remand with instructions to grant Hilton's motion to dismiss for forum non conveniens.

The Taba Resort Attack and the Florida Lawsuit

On October 7, 2004, terrorists attacked the Taba Hilton Resort in Taba Village, Egypt. Thirty-five persons died in the attack, and hundreds more were injured. Among the injured were August and Cheryl Carrillo, Maxim and Algaria Deri, and Bryan and Karola Jordan. Ludmilla and Oleg Faizakov were among the dead. The Carrillos and Bryan Jordan are citizens of the United States residing abroad. Karola Jordan, Bryan Jordan's wife, is a German citizen. The Deris are Israeli citizens and residents, as were the Faizakovs.¹

The surviving victims, together with the Faizakovs' survivors (also Israeli citizens), brought suit in the circuit court in Miami against Hilton, alleging that it failed to take sufficient security precautions at its resort in Taba Village. The complaint alleged that Hilton International had its principal place of business in Coral Gables, Florida, and had recently been acquired by Hilton Hotels Corporation. Hilton Hotels Corporation, according to the complaint, regularly does business in Florida, both through the Coral Gables office, and on its own. Hilton moved to dismiss the complaint on the grounds of forum non conveniens, and the trial court denied the motion.

The trial court found that the Carrillos were Florida residents based on contacts the couple had to the state prior to the terrorist attack. Specifically, the court's order lists a warranty deed from 1988, the Carrillos' children's baptism in 2001, and "general familial contacts." Further, the court reasoned that Ms. Carrillo's 2005 Florida driver's license and voter registration indicated that the couple intended to live in Florida following Mr. Carrillo's service to his country abroad.²

The trial court gave the Carrillos an "edge" in the balancing of interests specified by Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 90 (Fla.1996). Based on that determination, the court then extended that "edge" to the other six plaintiffs who had no contacts with Florida. Finding that the other plaintiffs' claims raised the same factual matters and questions of law, the court applied Florida's "liberal joinder provision"³ and denied the motion to dismiss as to those plaintiffs as well. This appeal followed.

Standard of Review

A lower court's ruling on a motion to dismiss is reviewed for an abuse of discretion. Kinney, 674 So.2d at 90-94. Misapplication of the Kinney factors may be redressed on appeal where the record is sufficiently developed and the facts pertinent to the forum non conveniens issue are undisputed. R.J. Reynolds Tobacco Co. v. Carter, 951 So.2d 105, 107 (Fla. 3d DCA 2007).

The Forum Non Conveniens Analysis

Out of growing concern that Florida was becoming a "courthouse for the world," Kinney, 674 So.2d at 88, the Florida Supreme Court adopted the federal forum non conveniens standard.⁴ Under this standard, a court presented with a forum non conveniens motion is to consider: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the "strong presumption against disturbing [a] plaintiff's initial forum choice"; 3) if the balance of private interests is in or near equipoise, whether relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum. Id. at 90.

1. Adequate Alternative Forum

It is undisputed in this case that there is an adequate alternative forum: Israel. The plaintiffs acknowledge this.

Hilton contends that Egypt is also an adequate alternative forum, and that the trial court should have so found. Hilton's position is well taken.

The trial court found Egypt to be an inadequate forum because it was the place where the attack occurred, there were strong anti-American and anti-Israeli sentiments in the country, and the plaintiffs would not be allowed to testify under the Egyptian legal system.

The question of whether a forum is adequate can ordinarily be answered in the affirmative if a defendant is amenable to process in the alternative jurisdiction. Id. Further, "[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 [sic]." Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1115 (Fla. 4th DCA 1997). See Piper Aircraft v. Reyno, 454 U.S. 235, 254, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (finding that dismissal may be improper where "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all"); Kinney, 674 So.2d at 90. Additionally, a forum may be inadequate if it is grossly inefficient or given to extreme levels of partiality. Leon v. Millon Air, 251 F.3d 1305, 1312 (11th Cir.2001).

Here, Hilton stipulates that it is amenable to process in Egypt and Israel. Of the reasons stated by the trial court regarding Egypt's inadequacy in hearing the case, none are sufficient to justify that finding. There is no per se rule of inadequacy applicable to a country in which terrorists attack innocent persons. Moreover, Egypt's political and cultural climates do not make Egypt an inadequate forum absent some direct, demonstrated, and adverse connection to its legal system. See Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 352 F.Supp.2d 787, 791 (E.D.Mich.2004).

A foreign forum does not need to be perfect. See Leon, 251 F.3d at 1311 (citations omitted). Rather, as other courts have found, absent evidence of extreme partiality or gross inefficiency, a foreign forum is adequate if there is a satisfactory remedy and a defendant is amenable to process in that forum. Although the plaintiffs' expert witness regarding the Egyptian judicial system, Mr. El-Shahid, opined that Egyptian courts might take five to ten years to render a final judgment in such a case, that is not "grossly inefficient" or tantamount to deprivation of any remedy.⁵ American courts have found Egypt to be an adequate forum despite the differences between its judicial system and the United States'. See Bigio v. Coca-Cola Co., No. 97 Civ. 2858(BSJ), 2005 WL 287397 (S.D.N.Y. Feb. 3, 2005), rev'd on other grounds, 448 F.3d 176 (2d Cir.2006); Younis v. Am. Univ. in Cairo, 30 F.Supp.2d 390, 395 (S.D.N.Y.1998).

Mr. El-Shahid's opinions regarding the more conservative compensation awarded by Egyptian judges suggests a forum-shopping or tactical disadvantage— not the inadequacy of Egypt as a forum. Kinney, and Gilbert before it, rejected any notion that a "less generous" forum is an unsatisfactory or inadequate forum.⁶

Finally, Mr. El-Shahid's concern that the plaintiffs would have to be represented by Egyptian attorneys, allegedly placing the plaintiffs "in an awkward and difficult position of locating counsel in a country completely foreign to them and where they or their loved ones had suffered an extreme trauma as a result of the bombing," does not support an argument that the country's judicial system is inadequate. The record does not support any contention that any of the plaintiffs will be unable to retain Egyptian counsel or that any of them have tried to do so and been rejected. The trauma of returning to the country in which the traumatic and horrifying events took place is not a factor precluding resolution of the claims by the judiciary of that country.⁷

As already stated, we agree with the trial court that Israel is an adequate alternative forum; we conclude that Egypt is also an adequate alternative forum.

2. The Private Interests

The trial court refused to grant Hilton's motion to dismiss in part because the court found that the parties' private interests were near equipoise. We again disagree.

The private interests a court may consider include (without limitation) "adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation." Kinney, 674 So.2d at 91. Underlying any consideration of these private interests is a presumption that favors a plaintiff's choice of forum. Id.

This presumption is rebuttable, however. The deference owed to a plaintiff's choice is at its highest level when that choice was motivated by legitimate reasons, i.e., the plaintiff's convenience and the ability to obtain jurisdiction over the defendant. Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir.2001). Of course, bona fide connections to the forum of choice further serve to strengthen the deference given to a plaintiff's choice. Id. Conversely, this deference dissipates if a plaintiff's forum choice was made in the absence of such connections. Id.; See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003).

In this case, the trial court gave excessive deference...