GUADALUPE GALLEGO OCHOA, ET AL.,

v.

PEDRO TOPETE VARGAS,

LINDSEY, J.

Appellants (Plaintiffs below) Guadalupe Gallego Ochoa (“Gallego”) and Guadalupe Aranzazu Gayosso Gallego (“Gayosso”) appeal from an order granting a motion to dismiss on the basis of forum non conveniens. Because the trial court did not abuse its discretion, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves a series of transactions stemming from a highway construction project in Mexico under a contract granted by the Mexican government. Gallego and Gayosso filed this action in June of 2017 against Pedro Topete Vargas (“Topete”); Empresas ICA, S.A.B. de C.V. (“ICA”); Controladora de Operaciones de Infrastructura, S.A. de C.V. (“Conoisa”); Ingenieros Civiles Asociados, S.A. de C.V. (“Ingenieros”); and Grupo ICA, S.A. de C.V. (“Grupo”).¹ Gallego and Gayosso asserted two claims against Topete: fraud and unjust enrichment. They asserted three claims against ICA, Conoisa, Ingenieros, and Grupo (collectively, the “Corporate Defendants”): constructive trust, fraud, and unjust enrichment.

Topete moved to dismiss on numerous grounds, including that there was no nexus to Florida and that Mexico provided an adequate alternative forum. The trial court granted Topete’s motion to dismiss for forum non conveniens and later granted

the Corporate Defendants’ separately filed motion to dismiss for the same reason.² This timely appeal follows. II. JURISDICTION We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ix) (authorizing appeals of orders that determine “the issue of forum non conveniens”). III. STANDARD OF REVIEW

We review the trial court’s order granting a motion to dismiss for forum non conveniens under an abuse of discretion standard. See Abeid-Saba v. Carnival Corp., 184 So. 3d 593, 599 (Fla. 3d DCA 2016) (citing Fla. R. Civ. P. 1.061(a); Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012)); Ryder Sys., Inc. v. Davis, 997 So. 2d 1133, 1134 (Fla. 3d DCA 2008). Although the presumption of correctness is lessened when the trial court’s findings are based on affidavits rather than live testimony, this Court “still give[s] substantial deference to the trial court’s decision, where,” as here, “its balancing of the [forum non conveniens] factors is reasonable.” See Ryder, 997 So. 2d at 1135 (quoting

Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So. 2d 912, 916 (Fla. 4th DCA 2008)). IV. ANALYSIS “Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86, 87 (Fla. 1996) (footnote omitted).³ In Kinney, the Florida Supreme Court adopted the federal forum non conveniens standard.⁴ Id. at 93. This standard requires consideration of four factors: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 plaintiffs’ 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; and⁴) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum.”

Rolls-Royce, 77 So. 3d at 859 (citing Kinney, 674 So. 2d at 90).5

In its order granting Topete’s motion to dismiss, the trial court correctly identified the Kinney factors and concluded that “[a]n analysis of the relevant factors militate in favor of granting Defendant’s Motion to Dismiss.” On appeal, Gallego and Gayosso argue the trial court abused its discretion by failing to consider evidence that Mexico is an inadequate forum because litigating there would put them in imminent physical harm. Based on the record before us, we do not agree that the trial court abused its discretion. The parties have previously engaged in extensive litigation over this dispute and, specifically, over the issue of where this matter should be judicially resolved. In 2011, Gallego and Gayosso filed a substantially similar action against Topete and the Corporate Defendants in the United States District Court for the Southern District of Florida. The federal district court dismissed that action based on forum non conveniens. Ochoa v. Empresas ICA, S.A.B. de C.V., No. 11-23898-CIV, 2013 WL

5674697 (S.D. Fla. Oct. 17, 2013). Gallego and Gayosso moved for reconsideration, raising the same or substantially similar evidence as raised here regarding their fear of litigating in Mexico. The district court denied that motion and the Eleventh Circuit affirmed. See Ochoa v. Empresas ICA, S.A.B. DE CV, 600 Fed. Appx. 725 (11th Cir. 2015). In so doing, the Eleventh Circuit noted that the district court “thoroughly weighed the facts” and “carefully considered [Gallego and Gayosso’s] fear of litigating in Mexico.” Id. at 726-27. Then, in 2016, Gallego and Gayosso filed the same case that is before us in New York state court. There, the court summarily dismissed that action “as a whole based on forum non conveniens.”⁶

Here, while the trial court’s order does not expressly mention Gallego and Gayosso’s safety concerns, that fact does not necessitate an automatic reversal. The trial court’s order expressly states that “there is no credible reason to believe that the relief requested by [Gallego and Gayosso] would be unavailable in Mexico, and that bringing suit in that alternate forum would cause [Gallego and Gayosso] any undue inconvenience or prejudice.” Further, the record demonstrates that the trial court considered Gallego and Gayosso’s fear of litigating in Mexico. Their safety concerns were raised below in their response to the motion to dismiss and in Topete’s reply. Moreover, the trial

court weighed the results of the prior litigation in federal court, which addressed the safety concerns. Finally, there was evidence that Gallego and Gayosso have filed numerous proceedings in Mexico against Topete and/or many of the same corporate entities in this case.⁷ As such, we cannot find the trial court abused its discretion. V. CONCLUSION

Because we find no abuse of discretion, we affirm.

Affirmed.