VICTOR HERRERA-ZENIL, ET AL., APPELLANTS,
v.
CARLOS LUIS VASALLO TOME, ET AL., APPELLEES

Fla. 3d DCA | 2017-11-08
No. 3D16-2536
Before LAGOA, EMAS and SCALES, JJ.
232 So. 3d 1124 Florida District Court of Appeal, Third District (2017)

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Synopsis

Plaintiffs appealed a trial court's dismissal of their complaint on forum non conveniens grounds, arguing that Mexico was not an adequate alternative forum and that one defendant had waived the challenge. The appellate court affirmed the dismissal, finding the trial court properly applied the Kinney factors and did not abuse its discretion.


Holding

The trial court did not abuse its discretion. Mexico was an available and adequate alternative forum supported by expert testimony and evidence of ongoing parallel litigation. Although defendant Vasallo personally waived his forum non conveniens challenge, the corporate defendants properly preserved their challenge, which the trial court correctly analyzed. The trial court properly weighed all Kinney factors and gave appropriate deference to plaintiffs' forum choice given that plaintiffs were foreign entities.


Headnotes

[1] A trial court must consider whether an adequate alternative forum exists, all relevant private interests, relevant public interests, and whether plaintiffs can bring suit…

[2] Expert testimony can establish that a foreign jurisdiction provides an adequate alternative forum for asserted causes of action, even without specific decisional law on c…

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Key Quotes

“Under this standard, a trial court presented with a forum non conveniens motion must 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 plaintiffs' initial forum choice'; 3) if the balance of private interests is at 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.”

This establishes the four-part Kinney test for forum non conveniens analysis that Florida courts must apply.

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Facts & Procedural History

Victor Herrera-Zenil (a permanent resident of Mexico and Brazil) and Canal Mi Cine S.A. de C.V. (a Mexican entity) sued defendants Carlos Luis Vasallo…

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Opinion of the Court
EMAS, J.

EMAS, J.

Carlos Luis Vasallo Tome, Mi Cine USA, Cine Nostalgia, Inc., and Cine Este-lar, Inc., are defendants in the action below. Defendants filed a motion to dismiss the operative complaint of plaintiffs Victor Herrera-Zenil and Canal Mi Cine S.A. de C.V., on forum non conveniens grounds.

The trial court granted the motion and entered an order dismissing the complaint. Plaintiffs have appealed that order, which we review for an abuse of discretion. Kinney Sys. Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996); Rolls-Royce, Inc. v. Garcia, 77 So.3d 865 (Fla. 3d DCA 2012). Upon our review and consideration of the entire record, we affirm.

The Florida Supreme Court, “out of growing concern that Florida was becoming a ‘courthouse ' for the world’ ... adopted the federal forum non conveniéns standard” in Kinney. Hilton Int’l Co. v. Carrillo, 971 So.2d 1001, 1004 (Fla. 3d DCA 2008). Under this standard, a trial court presented with a forum non conve-niéns motion must 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 plaintiffs’ initial forum choice"; 3) if the balance of private interests is at 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. Kinney, 674 So.2d at 90. See also Fla. R. Civ. P. 1.061(a)(l)-(4).

The trial court conducted an evidentiary hearing over a period of three days, and live testimony was presented during two of those days. Following the hearing, and argument of counsel, the trial court entered a detailed, thirteen-page order which set forth its analysis of each of the Kinney factors. The order also addressed the evidence supporting the trial court’s determinations that: Mexico was an available and adequate alternative forum; the private interest factors between litigating in Florida or Mexico were in equipoise; the public interest factors weigh in favor of Mexico as the forum for the action; the plaintiffs can reinstate their' suit in the alternative forum without undue inconvenience or prejudice.1

*1126Plaintiffs contend that there was no evidence to support the trial court’s finding that Mexico was an available and adequate alternative forum. We do not agree. The defendants’ Mexican legal expert provided, by affidavit and sworn testimony, sufficient evidence to establish that Mexico will provide an adequate alternative forum for the causes of action asserted in the operative complaint. Appellees presented no expert testimony to rebut or contradict defendants’ evidence in this regard.2

In addition, defendants presented evidence of ongoing parallel litigation in Mexico between Mi Cine, Herrera and Vasallo on the same issues raised by plaintiffs in their complaint. There was no abuse of discretion in the trial court’s determination that Mexico is an available and adequate alternative forum.

We reject plaintiffs’ contention that defendant Vasallo waived any forum non conveniens challenge, and that the trial court therefore necessarily abused its discretion in granting the motion to dismiss on those grounds. A proper reading of the record indicates that, although Vasallo’s counsel conceded that Vasallo, personally, was not going to challenge forum non con-veniens as to himself, counsel made it clear that there was no waiver of the forum non conveniens challenge raised on behalf of the defendant corporations (Mi Cine USA, Cine Nostalgia, Inc., Cine Estelar, Inc.). Thus, the trial court properly analyzed the Kinney factors as to the forum non conve-niens challenge pressed by the corporate defendants. And, in fact, the trial court considered, as one of the private interest factors, the fact of Vasallo’s waiver of his own personal forum non conveniens challenge. Nevertheless, the trial court determined that the private interest factors were in equipoise, and we find no abuse of discretion in that determination.3

*1127We find the other issues raised by plaintiffs are without merit and warrant no further discussion.4

Affirmed.


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