Florida Supreme Court Rejects Reverse Forum Shopping Through Invocation of the Forum Non Conveniens Doctrine
The Florida Supreme Court in Rabie Cortez v. Palace Holdings, Inc., No. SC11-1908, 2013 WL 3068147 (Fla. June 20, 2013), clarified that in conducting the forum non conveniens inquiry, United States citizens as a whole, not just Florida residents, are entitled to a strong presumption in favor of their chosen Florida forum. The court also made clear that a trial court must always weigh the public interest factors in conducting its forum non conveniens analysis, as opposed to only in such circumstances where the private interest factors weighed in favor of the alternative forum. In so concluding, the court rejected what appeared to be the local defendants’ attempt to engage in reverse forum shopping through use of the forum non conveniens doctrine.
Forum non conveniens is an equitable, judicially created common law doctrine which empowers the courts to dismiss an action over which the court otherwise has jurisdiction where the suit involves conduct with little connection to the chosen forum. The doctrine was in many respects created in response to a growing trend in private international law whereby foreign plaintiffs brought suit in a U.S. forum for injuries sustained on foreign soil because of the perceived favorable remedies generally afforded under U.S. law. The doctrine became a staple in the international practioner’s toolbox following the U.S. Supreme Court’s seminal decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In 1996, the Florida Supreme Court formally adopted the federal standard utilized for the doctrine’s invocation in the landmark decision Kinney Systems, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996). Until Cortez, Kinney Systems represented the Florida Supreme Court’s only guidance as to the doctrine’s governing standard and utility in Florida. According to Kinney Systems, the doctrine may be invoked where four prerequisites are met: (1) the alternative forum is adequate and possesses jurisdiction over the whole controversy; (2) the “private interest” factors favor dismissal, after weighing the strong presumption against disturbing the plaintiff’s chosen forum; (3) if the private interest factors are at or near equipoise, the “public interest” factors favor dismissal; and (4) if the balance of all the above favor dismissal, so long as the plaintiff can reinstitute their suit in the alternative forum without undue inconvenience or prejudice. The Florida Supreme Court focused on the second and third prerequisites in Cortez.
In Cortez, the plaintiff, a California resident, brought an action for negligent vacation packaging against three related entities that all shared the same address and were headquartered in Miami, Florida. The claim arose after Cortez was sexually assaulted by a male masseur during a complimentary massage at a resort in Cancun, Mexico, where Cortez was vacationing with her family. The massage was provided as part of the benefits Cortez received in connection with her attendance at the resort’s timeshare presentation. Cortez alleged that the complimentary massage and other associated benefits were part of a timeshare marketing scheme whose goal was to entice vacationers to travel to Mexico for the purpose of luring her into a fine-tuned sales program for timeshares. Cortez sued three related entities which were allegedly responsible for promoting, marketing and selling the timeshares at the Cancun resort. Cortez also alleged these three defendants kept the records for the resort and were responsible for responding to customer complaints.
The defendants moved to dismiss the action for forum non conveniens in favor of the courts in Mexico where Cortez’s sexual assault occurred, which the trial court granted. In affirming the dismissal the Third District concluded Cortez was not entitled to a strong presumption in her choice of a Florida forum because Cortez was a resident of California, and not Florida.1
The Florida Supreme Court reversed, concluding that all U.S. citizens, and not just Florida residents, are entitled to a strong presumption in favor of their chosen forum. The court noted that the presumption in favor of the plaintiff’s chosen forum “is a critical part of the [private interest] analysis in light of the fact that the whole premise behind the forum non conveniensdoctrine is that the plaintiff’s choice of forum, even if inconvenient to the plaintiff, is sufficientlyinconvenient for the defendant.” Cortez, 2013 WL 3068147 at *6 (emphasis in original). “Indeed, it is difficult to understand how or why a United States plaintiff’s choice of a United States forum can or should be overcome in favor of a forum in another country, thereby effectively denying that plaintiff access to Untied States courts.” Id. at *8.
Of paramount concern to the court was the apparent “reverse forum shopping” the defendants were attempting to perpetrate through invocation of the forum non conveniens doctrine. According to the court, the doctrine of forum non conveniens “is not designed to empower defendants to disadvantage plaintiffs by engaging in reverse forum-shopping where, as in a scenario like the one presented in this case, litigating in Florida would not cause a substantial burden to the defendant.” Id. at *7. Cortez, although a California resident, sued the defendants in their home state and even in their hometown – Miami, Florida. Because the doctrine of forum non conveniens is in part motivated to prevent plaintiffs from forcing defendants to litigate claims in an inconvenient forum, the court found it troubling that local defendants would seek dismissal in favor of a foreign country by claiming that its hometown courts were somehow inconvenient.
The Cortez court also clarified that trial courts must always balance the public interest factors in their forum non conveniens analysis, not solely in those circumstances where the private interest factors are at or near equipoise. Here, too, the court concluded the scales tipped in favor of retaining jurisdiction, because Cortez’s allegations centered on negligent conduct which occurred in Miami where the defendants reside. Consequently, the court stated that Florida has a strong interest in resolving disputes involving negligent conduct by Florida corporations which allegedly occurred in Florida.
In sum, the Cortez decision reflects Florida’s harmonization with the federal standard in applying the forum non conveniens doctrine, an intent the Florida Supreme Court initially expressed in its Kinney Systems decision. Florida no longer discriminates between out-of-state versus in-state residents in applying the doctrine. United States citizens as a whole are now entitled to substantial deference in their chosen forum, regardless of which state they hale from. The Cortez decision also serves as a caution to local defendants seeking to engage in reverse forum shopping through invocation of the doctrine. Careful attention should be applied to the locus of the conduct giving rise to the claims asserted, and the doctrine is best invoked where such conduct occurs on foreign soil.
1 Although not discussed in the court’s opinion, Cortez presumably brought suit in Florida, and not California, because Florida was the only state which possessed jurisdiction over the three Florida-based defendants.