Vasquez v. YII Shipping Co.

• Decision Date: 28 October 2011
• Docket Number: CASE NO. 11-60248-CIV-ALTONAGA/Simonton
• Parties: FRANKLIN VASQUEZ, Plaintiff, v. YII SHIPPING COMPANY LIMITED, Defendant.
• Court: U.S. District Court — Southern District of Florida

FRANKLIN VASQUEZ,

Plaintiff,

v.YII SHIPPING COMPANY LIMITED, Defendant.

CASE NO. 11-60248-CIV-ALTONAGA/Simonton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

DONE AND ORDERED: October 28, 2011

ORDER

THIS CAUSE came before the Court on Defendant, YII Shipping Company Limited's ("YII Shipping['s]) Renewed Motion to Dismiss (the "Motion") [ECF No. 49], filed August 15, 2011. The Court has considered the parties' submissions and the applicable law.

I. BACKGROUND¹

Plaintiff Franklin Vasquez ("Vasquez"), a resident of the Dominican Republic, is a "seaman" as defined in 28 U.S.C. § 1916. (Compl. ¶¶ 1-2 [ECF No. 1]). Vasquez was employed by Defendant YII Shipping. (See id. ¶ 7; Vaughn Higgs Aff. ¶ 2 [ECF No. 14-3]). YII Shipping is a Bahamian corporation with its principal place of business in Nassau, The Bahamas. (See Am. Final Order Granting YII Shipping Company Limited's Mot. to Dismiss with Prejudice on the Basis of Forum Non Conveniens, Mot. Exs. 1, 2 [hereinafter "Fla. Order"] [ECF No. 14-1]; V. Higgs Aff. ¶ 3). While employed by Defendant, Vasquez served on the YII Shipping-owned vessel, the M/V Yeocomico, a Honduran-flagged cargo ship. (See Compl. ¶¶6-7; Fla. Order 1-2; V. Higgs Aff. ¶ 4). The M/V Yeocomico's crew was "composed entirely of foreign nationals, from the Bahamas, Dominican Republic and the Philippines," with no United States or Florida residents. (Fla. Order 2). During the two years prior to Plaintiff's injury, the M/V Yeocomico "sailed exclusively in Bahamian waters in inter-island cargo traffic." (Id.). During that period, the M/V Yeocomico never sailed in U.S. waters. (See id.). In fact, the M/V Yeocomico has not sailed in U.S. waters or serviced U.S. ports since 2005. (See V. Higgs Aff. ¶ 4; Vaughn Higgs Dep. 56:18-57:2, July 23, 2008 [ECF No. 65-2]; Fla. Order 2; Mot. Opp'n Exs. 12, 13 [ECF Nos. 61-12, 61-13]; Augusto Maldonado Dep. 7:19-8:6, Nov. 20, 2009 [ECF No. 62-6]; Franklin Vasquez Dep. 13:4-21, Jan. 9, 2008 [ECF No. 65-1]). As a result, Mr. Vasquez had not sailed to the United States or Florida since 2005. (See Vasquez Dep. 13:18-21).

On June 21, 2007, while the M/V Yeocomico was in Bahamian territorial waters, during a regular inter-island sail, Plaintiff was injured. (See Compl. ¶¶ 17, 19; Fla. Order 2; Higgs Aff. ¶ 5; Vasquez Dep. 15:20-21). While the M/V Yeocomico was docked in Freeport, The Bahamas, Vasquez was cutting metal with an acetylene gun. (See Compl. ¶ 19). After the gun stopped working correctly, Vasquez attempted to remedy the problem by opening the acetylene tank's valve to allow greater gas flow. (See id.). After fiddling with a valve, the tank exploded, severely burning Vasquez's left arm, left ear, and the left side of his mouth. (See id.).

After Plaintiff was injured, he was treated on Berry Island, The Bahamas. (See Fla. Order 2). Later, he was treated in Nassau, The Bahamas. (See id.). Following Plaintiff's treatment in The Bahamas, he returned to the Dominican Republic, where his treatment continued. (See id.). Plaintiff then secured legal counsel in Miami, and he came here "to see two physicians for a single evaluation on the same day."² (Id.). After the evaluation, Mr. Vasquezreturned to the Dominican Republic. (See id.).

This is the second time this suit has been filed. Plaintiff originally sued YII Shipping, based on these same facts, in Florida state court. (See Compl. ¶ 11; see generally Fla. Order). The Florida court dismissed the case on June 8, 2009 based on forum non conveniens. (See Compl. ¶ 12; see Fla. Order 11 -12). The dismissal was affirmed by the Florida Fourth District Court of Appeal. See Vasquez v. YII Shipping Co., 46 So. 3d 1235 (Fla. 4th DCA 2010).

After the state-court dismissal was final, Plaintiff filed this federal suit based on the same operative facts. (See Compl.). The Complaint raises four claims: (1) Jones Act negligence, (2) unseaworthiness, (3) failure to provide maintenance and cure, and (4) failure to treat. (See id. ¶ 16-40).³ Defendant now moves to dismiss the Complaint principally on the grounds of forum non conveniens and preclusion. (See generally Mot.).

II. ANALYSIS

A. Introduction

The doctrine of forum non conveniens allows courts to decline jurisdiction over a case, even if personal jurisdiction and venue are proper, if it appears the interests of justice require the case to be tried in another forum. See Am. Dredging Co v. Miller, 510 U.S. 443, 447-48 (1994) (citations omitted). The Eleventh Circuit requires that a court conduct a two-pronged inquiry to determine whether it should dismiss maritime claims under the doctrine of forum non conveniens. See Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983). First, the court must decide, under choice of law principles, whether it should apply United States law to the case. See id. If so, the court should not dismiss the case for forum non conveniens. See id. Second, if the court finds that United States law does not apply, it analyzestraditional forum non conveniens considerations to determine whether a foreign forum is a more appropriate venue. See id.

1. Lauritzen/Rhoditis

Because the Plaintiff alleges Jones Act negligence (see Compl. ¶¶ 5, 16-23), before considering the traditional forum non conveniens analysis, the Court must address the Lauritzen/Rhoditis choice-of-law question, that is, whether the Jones Act applies.⁴ The Supreme Court has outlined eight factors for determining whether or not the Jones Act is applicable. See Fantome, S.A. v. Frederick, No. 02-10890, 2003 WL 23009844, at *2 (11th Cir. Jan. 24, 2003) (citing Lauritzen v. Larsen, 345 U.S. 571, 583-91 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970)). The eight factors are:

(1) the place of the wrongful act; (2) the law of the ship's flag; (3) the allegiance or domicile of the injured seaman; (4) the allegiance of the shipowner; (5) the place where the shipping articles were signed; (6) the accessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner's base of operations.

Id. (citing Lauritzen, 345 U.S. at 583-91, and Rhoditis, 398 U.S. at 309).⁵ The final Lauritzen factor, law of the forum, "is entitled to little weight because 'fortuitous circumstances . . . often determine the forum.'" Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1517 (11th Cir. 1985).

The eight factors are not "exhaustive" and are not meant to be mechanically applied. Fantome, 2003 WL 23009844, at *2 (citing Rhoditis, 398 U.S. at 308-09). In Rhoditis, the Supreme Court quoted the Second Circuit with approval in describing the process of weighing the factors:

"(T)he decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be 'weighed' and 'evaluated' only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality."

Rhoditis, 398 U.S. at 309 n.4 (quoting Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 441 (2d Cir. 1959)). As is explained below, when considering these factors and undertaking this process, the Court is bound by the factual and legal findings made by the Florida court that were essential to its determination.

2. Traditional Forum Non Conveniens Analysis

The Supreme Court has "characterized forum non conveniens as, essentially, 'a supervening venue provision, permitting displacement of the ordinary rules of venue when, inlight of certain conditions, the trial court thinks that jurisdiction ought to be declined.'" Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994)). "The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the parties' and court's own convenience, as well as the relevant public and private interests, indicate that the action should be tried in a different forum." Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009); see also Aldana v. Fresh Del Monte Produce, Inc., No. 01-3399-CIV, 2007 WL 3054986, at *3 (S.D. Fla. Oct. 16, 2007) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947)). "This tool 'is to be favored' for ensuring that federal courts only hear 'those cases where contacts with the American forum predominate.'" Aldana, 2007 WL 3054986, at *3 (quoting Sigalas, 776 F.2d at 1519 n.10).

At the outset of a forum non conveniens analysis, there is a strong presumption in favor of the plaintiff's initial forum choice. See Gulf Oil, 330 U.S. at 508 (finding "unless the balance [of interests] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed"). The presumption in favor of the plaintiff is strongest when the plaintiff is a citizen or resident of the United States. See SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir. 2004) (citation omitted). Courts provide less deference to a foreign plaintiff's choice of forum than that of a domestic plaintiff. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981); see also Sinochem Int'l, 549 U.S. at 430 ("When the plaintiff's choice is not its home forum, however, the presumption in the plaintiff's favor 'applies with less force,' for the assumption that the chosen forum is appropriate is in such cases 'less reasonable.'" (quoting Piper Aircraft, 454 U.S., at 255-56)).

The federal and Florida state courts use an identical traditional forum non convenienstest.⁶ See Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1289 (11th Cir. 2009). "Indeed, the Florida Supreme Court has explicitly adopted the...