Del Monte Fresh Produce Co. v. Dole Food Co., Inc.
| Decision Date | 22 February 2001 |
| Docket Number | No. 00-1171-CIV.,00-1171-CIV. |
| Citation | 136 F.Supp.2d 1271 |
| Parties | DEL MONTE FRESH PRODUCE COMPANY, and Del Monte Fresh Produce, N.A., Inc., Plaintiffs, v. DOLE FOOD COMPANY, INC., and Dole Fresh Fruit Company, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Carlos Mario Sires, Rima Youakim Mullins, Kirkpatrick & Lockhart, Miami, FL, Edward E. Vassallo, Fitzpatrick Cella Harper & Scinto, New York City, Stuart Harold Singer, Boies Schiller & Flexner, Hollywood, FL, for plaintiffs.
Harley Shepard Tropin, Gail Ann McQuilkin, Kozyak, Tropin & Throckmorton, Miami, FL, Robert C. Zundel, Jr., David L. Dawson, Bond Schoeneck & King, Naples, FL, James S. Teater, Jones Day Reavis & Pogue, Dallas TX, Frederick L. McKnight, Wendy L. Thomas, John J. Murphy, Suzanne C. Jones, Jones Day Reavis & Pogue, Los Angeles, CA, Kathleen M. Vanderziel, Dole Food Company, Westlake Village, CA, for defendant.
Brian O'Neill, Frederick D. Friedman, O'Neill Lysaght & Sun, Santa Monica, CA, Gerald J. Houlihan, Houlihan & Partners, Miami FL, for Daniel W. Funk.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
THIS CAUSE is before the court upon the defendants' motions to dismiss or to transfer venue (DE # 35, 38). The plaintiffs filed a four-count complaint against the defendants alleging as follows: Count I, reverse palming off in violation of the Lanham Act, 15 U.S.C. § 1125, et seq.; Count II, misappropriation of trade secrets under the Florida Trade Secret Act, Florida Statutes § 688.001 et seq.; Count III, conversion; and Count IV, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes § 501.204 et seq. The court has federal question and diversity subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1332, 1338, and 1367(a), and the defendants have waived any objections to personal jurisdiction. The defendants seek to dismiss the complaint based on forum non conveniens and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Alternatively, the defendants seek to transfer venue to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). For the reasons discussed herein, the defendants' venue-based motions are denied, and the defendants' motion to dismiss for failure to state a claim is granted in part and denied in part.
The plaintiffs in this case are Del Monte Fresh Produce Company, a Delaware corporation, and Del Monte Fresh Produce, N.A., Inc., a Florida corporation (collectively referred to as "Del Monte"); each has its principal place of business in Florida. See Pl. Compl. at ¶ 2. The defendants are Dole Food Company, Inc., a Hawaii corporation, and Dole Fresh Fruit Company, a Nevada corporation (collectively referred to as "Dole"); each has its principal place of business in California. See Pl. Compl. at ¶ 3. The parties in this case are engaged in the development, growth, processing, and distribution of fruits and vegetables. This litigation concerns a dispute over the growth, marketing, and distribution of a certain variety of pineapple.
Del Monte's complaint alleges that, over the course of many years, it and its predecessors developed a new variety of pineapple, which is known as MD-2. Pl. Compl. at ¶ 5. The testing and development of the MD-2 variety occurred in Hawaii. Sometime after, Del Monte sent MD-2 plant materials to Costa Rica for further study in the nurseries of that country. See Pl. Compl. at ¶ 8. These pineapples had the advantage of a higher vitamin C content, a sweeter taste, more fiber, brighter color, a more pleasant smell, and a milder texture. In time, Del Monte ascertained that the MD-2 variety flourished in the soil and climate of Costa Rica, so it began to propagate the pineapples in its plantations located in that country. See Pl. Compl. at ¶ 9. In 1996, Del Monte began to sell the MD-2 variety in the United States under the name of "Del Monte Gold Extra Sweet." See Pl. Compl. at ¶ 5. At present, this brand of pineapple accounts for approximately forty-five percent of the pineapple market in the United States. See Pl. Compl. at ¶ 7.
In 1991, a Costa Rican farm known as Cabo Marzo, which was a seller of pineapple to Dole, allegedly obtained Del Monte's MD-2 variety plant material. Del Monte claims that Cabo Marzo obtained the MD-2 variety unlawfully from Del Monte's Costa Rican plantations. Pl. Compl. at ¶ 10. In 1995, Dole purchased the MD-2 plant material from Cabo Marzo and began to propagate it to compete with Del Monte. See Pl. Compl. at ¶ 12. In 1999, Dole began to sell the pineapples that it allegedly had developed from the MD-2 variety throughout the United States under the brand name of "Dole Premium Select." See Pl. Compl. at ¶ 14. According to Del Monte, both Cabo Marzo and Dole knew that the MD-2 variety belonged exclusively to Del Monte. Del Monte further claims that when Dole represented to the pineapple trade that it had developed the "Dole Premium Select" brand of pineapple as a "new, super sweet" variety to compete with the "Del Monte Gold Extra Sweet," Dole knew or should have known its representations were false. Pl. Compl. at ¶ 15.
The first motion to be considered is Dole's motion to dismiss for forum non conveniens. The doctrine of forum non conveniens "authorizes a trial court to decline to exercise its jurisdiction, even though the court has venue, where it appears that the convenience of the parties and the court, and the interests of justice indicate that the action should be tried in another forum." Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1218 (11th Cir.1985) (per curiam). A court conducting forum non conveniens analysis must begin with the premise that the plaintiff's choice of forum rarely should be disturbed. See Doe v. Sun Int'l Hotels, Ltd., 20 F.Supp.2d 1328, 1329 (S.D.Fla.1998) (citing Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).
Further consideration of a forum non conveniens motion involves a two tier analysis. See Republic of Panama v. BCCI Holdings, 119 F.3d 935, 951 (11th Cir.1997). First, the court must determine whether or not an alternative forum exists that is both available and adequate. See id. If an appropriate forum does exist, the court then must weigh the private and public interests in adjudicating the case in the available forum. See id. Dismissal for forum non conveniens is warranted when the court determines that the private and public interests favor adjudication of the matter in the alternative forum. Dole has invoked the doctrine of forum non conveniens, arguing that Del Monte's complaint should be dismissed because Costa Rica is the appropriate forum to decide merits of the parties' dispute. For the reasons discussed below, Dole's arguments are rejected.
The burden of demonstrating that an appropriate alternative forum exists is not a heavy one, but it rests with the party seeking dismissal. See Sun Int'l Hotels, 20 F.Supp.2d at 1329. As the Eleventh Circuit has explained, "Generally, a defendant satisfies the first prong of the [forum non conveniens] analysis by showing that it is `amenable to process in the other jurisdiction.'" BCCI Holdings, 119 F.3d at 951 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)) (internal quotation marks omitted). The fact that the substantive law of the alternative forum may be less favorable to the plaintiff does not render the alternative forum inadequate. See Reyno, 454 U.S. at 247, 102 S.Ct. 252 (). It is only when "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all" that the change in substantive law becomes a consideration. Id. at 254, 102 S.Ct. 252.
In the present case, Dole argues that Costa Rica is an adequate alternative forum because Dole has consented to the jurisdiction of the Costa Rican courts for the purposes of resolving the parties dispute. See Thomas Affid. at ¶ 2. According to Dole, the fact that Costa Rica has not enacted a remedial scheme similar to the Lanham Act is inconsequential. See Lockman Found'n v. Evangelical Alliance Mission, 930 F.2d 764, 768-69 (9th Cir. 1991) (); Lana Int'l Ltd. v. Boeing Co., 1995 WL 144152 *2 (S.D.N.Y. Mar.30, 1995) (). Dole argues that this is because Costa Rican courts would permit comparable recovery by recognizing claims based upon theft and fraud of intellectual property. See Tristan Affid. at ¶ 3-8. As a final argument, Dole contends that Del Monte's opposition to a dismissal based on forum non conveniens conflicts with arguments made by Del Monte in a prior litigation, where Del Monte actually sought a dismissal in favor of Costa Rican courts.
Each of the points raised by Dole is without merit. Dole's consent to personal jurisdiction in Costa Rica and Costa Rican courts's recognition of claims involving intellectual property is not dispositive. The only proof that Dole has submitted in support of its arguments that the Costa Rican courts would consider Del Monte's claims is an affidavit by a former Costa Rican Chief Justice. See Quiros Affid. at ¶ 4. What Dole fails to mention is that this affidavit was prepared for a prior litigation in the Hawaii District Court where Dole and Del Monte were sued by Costa Rican farmers who allegedly were injured by pesticides. The affidavit was not...
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