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Petitioner, a California resident, was sexually assaulted while vacationing in Mexico. The assault occurred while Petitioner received a complimentary massage in exchange for her attendance at a resort's timeshare presentation. Petitioner sued the resort, a corporation with its primary place of business in Florida, (the Florida Defendants) for negligent vacation packaging. The Florida Defendants filed a motion to dismiss based on forum non conveniens, arguing that Mexico would be a more convenient forum. The trial court granted the motion. The court of appeal affirmed. The Supreme Court quashed the court of appeal's decision, holding that the court misapplied the forum non conveniens analysis, particularly by failing to afford a strong presumption in favor of Plaintiff's initial choice of an otherwise proper forum.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
SHAHLA M. RABIE CORTEZ,
PALACE RESORTS, INC., et al.,
[June 20, 2013]
The underlying question in this case is whether the forum non conveniens
doctrine was erroneously applied to force a United States citizen to litigate her
negligence action in Mexico, when her lawsuit was filed against a corporation with
its primary place of business in Florida and where the allegations of the complaint
relate to an incident that took place in Mexico but center on conduct occurring in
Florida. In Rabie Cortez v. Palace Holdings, S.A. de C.V., 66 So. 3d 959, 963-64
(Fla. 3d DCA 2011), the Third District Court of Appeal approved the dismissal of
the plaintiff’s lawsuit in Florida, concluding that Mexico was an adequate
alternative forum and reasoning that the plaintiff’s initial selection of a Florida
forum was not entitled to a strong presumption of deference because she is a
California resident. We have jurisdiction on the basis that the Third District’s
decision expressly conflicts with and misapplies this Court’s decision in Kinney
System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996). See art. V,
§ 3(b)(3), Fla. Const.; see also Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003)
(stating that misapplication of a supreme court decision creates conflict
As more fully explained below, we conclude that the Third District’s
analysis was flawed in two ways. First, the Third District misstated a rule of law
from, and misapplied, Kinney by finding that the plaintiff, by virtue of her out-ofstate residence, was not entitled to the strong presumption in the forum non
conveniens analysis against disturbing the plaintiff’s initial choice of forum.
Second, the Third District also erred, as fully explained in Judge Rothenberg’s
dissent, by failing to focus on the fact that although this lawsuit involves an assault
that occurred in Mexico, the allegations of negligence in this case derive from
conduct in Florida by defendants with their primary place of business in Florida.
By misapplying the forum non conveniens analysis, and particularly by
failing to afford a strong presumption in favor of the plaintiff’s initial choice of an
1. The Florida Justice Association filed an amicus brief in support of the
Petitioner and the Florida Defense Lawyers Association, Inc., filed an amicus brief
in support of the Respondents.
otherwise proper forum, the Third District’s decision results in a situation where a
United States citizen is forced to litigate in a foreign country, imposing a
substantial burden on her without a showing that it would be burdensome for the
Florida-based defendants to defend the lawsuit in Florida. For the reasons that
follow, we therefore hold that the Third District erred in affirming the trial court’s
dismissal of this lawsuit on forum non conveniens grounds and requiring the
plaintiff to file suit in Mexico. Accordingly, we quash the Third District’s
FACTS AND BACKGROUND
The allegations, which we must accept as true for the purpose of a motion to
dismiss, 2 state that the Petitioner, Shahla M. Rabie Cortez (“Rabie Cortez”), was
sexually assaulted by a male masseur during a complimentary massage at the
Moon Palace Golf and Spa Resort in Cancun, Mexico, where she was vacationing
with her family. Rabie Cortez, who is a California resident, was provided with the
complimentary massage as part of the benefits she received in exchange for her
2. See Gracey v. Eaker, 837 So. 2d 348, 351-52 (Fla. 2002) (accepting the
well-pled allegations as true because the case was before the Court on a dismissal
of the action at the pleading stage); Siegle v. Progressive Consumers Ins. Co., 819
So. 2d 732, 734-35 (Fla. 2002) (“[W]hen presented with a motion to dismiss, a trial
court is required to ‘treat the factual allegations of the complaint as true and to
consider those allegations in the light most favorable to the plaintiffs.’ ” (quoting
Hollywood Lakes Section Civic Ass’n v. City of Hollywood, 676 So. 2d 500, 501
(Fla. 4th DCA 1996))).
attendance at a timeshare presentation offered by the resort. Rabie Cortez alleged
that these benefits, including the massage, were part of a “timeshare-marketing
scheme” and filed suit against the “designers” of her vacation package, including
several corporations based in Miami, Florida, stating that the companies’ goal of
enticing vacationers such as herself to travel to the Mexican resort was in actuality
“to lure [the travelers] into a fine-tuned sales program for timeshares.”
Rabie Cortez filed her lawsuit in Miami-Dade County circuit court and, after
voluntarily dismissing several claims, ultimately sued three defendants based on an
allegation of negligent vacation packaging: Palace Resorts, Inc.; Palace Resorts,
LLC; and Tradco, Ltd., Inc. (collectively, as they referred to themselves in this
litigation, “the Florida Defendants”). 3
3. Rabie Cortez originally filed suit against the following six entities: (1)
Palace Holding, S.A. de C.V.; (2) Palace Resorts, S.A. de C.V.; (3) Palace Resorts,
Inc.; (4) Palace Resorts, LLC; (5) Tradco, Ltd., Inc.; and (6) Costco Wholesale
Corporation. Palace Holding, S.A. de C.V., is the Mexican parent company of
Palace Resorts, S.A. de C.V. (which is also a Mexican company), as well as of
Palace Resorts, Inc., and Palace Resorts, LLC, both of which are Delaware
companies headquartered at the same address in Miami, Florida. Tradco, Ltd.,
Inc., is also headquartered at that Miami address, and is a subsidiary of
Marlborough, Ltd., which is co-owned by the president of Palace Holding, S.A. de
C.V., who is the same individual that serves as the president of Palace Resorts,
Inc., and Palace Resorts, LLC. Rabie Cortez asserted numerous claims against the
Mexican companies and against Costco, with whom she booked her vacation, but
alleged only negligent vacation packaging against the Respondents, Palace Resorts,
Inc.; Palace Resorts, LLC; and Tradco, Ltd., Inc.
All three of the Florida Defendants have their principal place of business at
the same Miami, Florida, address. Palace Resorts, Inc., in particular, “is in the
business of promoting, selling and marketing the Palace Resorts in Cancun,
Mexico, including the Moon Palace Golf and Spa Resort,” where Rabie Cortez was
assaulted. Rabie Cortez alleged that the Florida Defendants control and manage
their marketing and vacation package design operations, including marketing and
planning for the Moon Palace Resort where she was assaulted, at their Miami
headquarters. She further alleged that the Florida Defendants keep records and
respond to customer complaints from their Miami offices.
In response to Rabie Cortez’s lawsuit, the Florida Defendants filed a motion
to dismiss based on forum non conveniens, arguing that Mexico would be a more
convenient forum for litigating the case.4 The trial court granted the motion,
finding that Rabie Cortez’s allegations were based on “events that occurred
entirely in Mexico” and that her choice of a Florida forum was “given less
deference” because she is a California resident who has “no apparent contacts with
4. Although the Florida Defendants have maintained throughout this case
that they have little to no connection with the events giving rise to this cause of
action, the motion to dismiss was not based on a failure to state a cause of action,
improper venue, or lack of jurisdiction. See Fla. R. Civ. P. 1.140(b).
On appeal, the Third District upheld the trial court’s dismissal of Rabie
Cortez’s lawsuit on forum non conveniens grounds, reasoning that “based on the
test set forth [by this Court] in Kinney, Mexico is a more convenient forum to
litigate the lawsuit than Florida.” Rabie Cortez, 66 So. 3d at 961. Citing Kinney,
the Third District recognized that there is a strong presumption against disturbing a
plaintiff’s initial choice of forum, but stated that the presumption “is given less
deference when, as here, the plaintiff is an out-of-state resident with very little, if
any, contact with Florida.” Id. at 962-63. Because Rabie Cortez chose to file suit
in Florida, “a forum that is not her residence,” the Third District stated, “she is not
entitled to a strong presumption in favor of Florida as her initial forum choice.” Id.
at 963. Accordingly, the Third District held that “[w]ithout this strong
presumption,” the forum non conveniens test “clearly favor[ed] dismissal and
resolution [of this lawsuit] in a Mexican forum.” Id.
In dissent, Judge Rothenberg criticized the Third District majority for failing
to afford proper deference to Rabie Cortez’s choice of forum and for misapplying
the Kinney factors to the facts of this case. Id. at 964 (Rothenberg, J., dissenting).
The dissent highlighted that—contrary to the Florida Defendants’ original
assertions that they lacked a connection with Florida and with this case—Miami,
Florida, is the “operational, managerial, and marketing center for the entire Palace
Resorts group.” Id. at 965. Specifically, Judge Rothenberg observed as follows:
[T]he Florida Defendants control: marketing; sales to individuals,
groups, and travel agents; timeshare programs; customer service;
press relations; and finance for the entire Palace Resorts Group. The
Florida Defendants manage the entire U.S. market, which represents
seventy percent of Palace Resorts’ business; the president of most of
the Palace companies lives and works in Miami; and the Florida
Defendants employ nearly one hundred employees in Miami. More
importantly, the plaintiff alleges that: customer complaints are
investigated by the Florida Defendants at their Miami corporate
headquarters; the Florida Defendants issue refunds to unhappy
customers, design vacation packages for all the Palace Resort hotels,
approve all marketing literature, manage hotel websites, and issue all
press releases at their Miami headquarters; and their Miami
headquarters is the record-keeping center for the Mexican Palace
Id. at 965-66 (emphasis added). The dissent contended that it was error for the trial
court to treat Rabie Cortez as a foreign plaintiff because of her California
residence; that keeping this case in Florida would not cause manifest injustice to
the Florida Defendants; that Florida has an interest in ensuring that harmful actions
originating in Florida are properly addressed in Florida courts; and that Rabie
Cortez’s choice of forum was owed great deference. Id. at 969-72.
Rabie Cortez sought this Court’s review, asserting that the Third District
incorrectly applied the Kinney factors and failed to properly acknowledge the
strong presumption of deference required by Kinney against disturbing her choice
of a Florida forum. We first set forth a full explanation of Florida’s forum non
conveniens test, and then turn to a closer examination of the deference owed to a
plaintiff’s initial choice of forum. With these principles in place, we address the
Third District’s application of the forum non conveniens factors in this case.
We begin with a review of the forum non conveniens doctrine in Florida and
clarify the test to be applied by Florida trial courts engaging in a forum non
I. Forum Non Conveniens: The Four Factors
The common law doctrine of forum non conveniens, which translates to
mean “inconvenient forum,” is an equitable, judicially crafted rule designed to
allow a court to dismiss, in certain limited circumstances, a lawsuit with little
connection to Florida that would be better suited and fairly litigated elsewhere.
See Kinney, 674 So. 2d at 87 & n.1. This doctrine comes into play only if the
plaintiff has first obtained personal jurisdiction over each of the defendants in
Florida by effecting service of process, which occurs where the defendant is
present in, resides in, or has its principal place of business in Florida, or through
application of the state’s long-arm statute because, oftentimes, the defendant has
committed a tortious act in Florida. See § 48.193, Fla. Stat. (2008) (setting forth
the bases for the exercise of long-arm jurisdiction); Execu-Tech Bus. Sys., Inc. v.
New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000) (“A court can exercise
personal jurisdiction, inter alia, whenever a foreign corporation commits a ‘tortious
act’ on Florida soil.”).
In exercising personal jurisdiction over a nonresident of this state, the trial
court, upon proper motion, must engage in a two-part analysis, first determining
whether “the complaint alleges sufficient jurisdictional facts to bring the action
within the ambit of the [long-arm] statute,” and second analyzing “whether
sufficient ‘minimum contacts’ are demonstrated to satisfy [constitutional] due
process requirements.” Borden v. East-European Ins. Co., 921 So. 2d 587, 592
(Fla. 2006) (quoting Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.
1989)). This dual inquiry for the exercise of long-arm jurisdiction is an important
statutory and constitutional hurdle for the plaintiff to overcome and one that would
precede an attempt to dismiss the case based on the equitable, judge-made doctrine
of forum non conveniens.
As described in Kinney, which is this Court’s most recent detailed
explication of the forum non conveniens doctrine in Florida:
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. Forum non conveniens also serves
as a brake on the tendency of some plaintiffs to shop for the “best”
jurisdiction in which to bring suit—a concern of special importance in
the international context. Commentators generally have noted a
growing trend in private international law of attempting to file suit in
an American state even for injuries or breaches that occurred on
foreign soil. There already is evidence the practice is growing to
abusive levels in Florida.
674 So. 2d at 87-88 (footnotes omitted). The Court in Kinney characterized the
problem addressed by the forum non conveniens doctrine as allowing Florida to
serve as “a courthouse for the world,” in which Florida taxpayers were forced to
“pay to resolve disputes utterly unconnected with this state’s interests.” Id. at 88.
In response to this perceived burden being placed on Florida trial courts to
adjudicate disputes unrelated to Florida, this Court adopted the federal test for
dismissing an action on forum non conveniens grounds, which provides as follows:
 As a prerequisite, the court must establish whether an adequate
alternative forum exists which possesses jurisdiction over the whole
case.  Next, the trial judge must consider all relevant factors of
private interest, weighing in the balance a strong presumption against
disturbing plaintiffs’ initial forum choice.  If the trial judge finds
this balance of private interests in equipoise or near equipoise, he
must then determine whether or not factors of public interest tip the
balance in favor of a trial in [another] forum.  If he decides that the
balance favors such a . . . forum, the trial judge must finally ensure
that plaintiffs can reinstate their suit in the alternative forum without
undue inconvenience or prejudice.
Id. at 90 (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784-85 (D.C. Cir.
1980)). The forum non conveniens inquiry currently conducted by Florida courts
is therefore a four-step process and is set forth in Florida Rule of Civil Procedure
First, the trial court must ascertain whether there is another adequate forum
available to hear the case. This factor encompasses two separate considerations:
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availability and adequacy. An alternative forum is “available” when that forum
can assert jurisdiction over the litigation sought to be transferred. Leon v. Millon
Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001); see also Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 254 n.22 (1981). In Kinney, we noted that “the ability to
perfect service of process” in this alternative forum is the key to the availability
inquiry. Kinney, 674 So. 2d at 90. In truth, a review of post-Kinney cases reveals
that most defendants, desiring to move the dispute to the alternative forum, agree
to accept service of process and even waive any defense of the statute of
limitations. See Kawasaki Motors Corp. v. Foster, 899 So. 2d 408, 411 (Fla. 3d
DCA 2005); Tananta v. Cruise Ships Catering & Servs. Int’l, N.V., 909 So. 2d
874, 888 (Fla. 3d DCA 2004); see also Fla. R. Civ. P. 1.061(c) (“In moving for
forum-non-conveniens dismissal, defendants shall be deemed to automatically
stipulate that the action will be treated in the new forum as though it had been filed
in that forum on the date it was filed in Florida, with service of process accepted as
of that date.”); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011)
(explaining that the defendants stipulated to consent to service of process in the
foreign forum, toll any applicable statutes of limitations, and make witnesses and
With respect to adequacy, an alternative forum does not have to be
equivalent to the chosen forum to be adequate, but we have recognized that
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“dismissal would not be appropriate where the alternative forum does not permit
litigation of the subject matter of the dispute.” Kinney, 674 So. 2d at 90 (quoting
Piper, 454 U.S. at 254 n.22). “A foreign forum is adequate when the parties will
not be deprived of all remedies or treated unfairly, even though they may not enjoy
the same benefits as they might receive in an American [c]ourt.” Ciba-Geigy Ltd.
v. Fish Peddler, Inc., 691 So. 2d 1111, 1115 (Fla. 4th DCA 1997) (quoting In re
Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (5th Cir. 1987)).
“Additionally, a forum may be inadequate if it is grossly inefficient or given to
extreme levels of partiality.” Hilton Int’l Co. v. Carrillo, 971 So. 2d 1001, 1005
(Fla. 3d DCA 2008) (citing Leon, 251 F.3d at 1312). “Courts have been strict
about requiring that defendants demonstrate that the alternative forum offers at
least some relief.” Leon, 251 F.3d at 1311.
Second, and assuming an adequate alternative forum is available, the trial
court must weigh the “balance of private conveniences.” Kinney, 674 So. 2d at 91.
An examination of private interests, although a term of expansive scope,
essentially focuses on four concerns: access to evidence, access to witnesses,
enforcement of judgments, and the practicalities and expenses associated with the
Key to this second prong of the forum non conveniens inquiry, as we made
clear in Kinney, is that “the reviewing court always should remember that a strong
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presumption favors the plaintiff’s choice of forum.” Id. (emphasis added). This
presumption “can be defeated only if the relative disadvantages to the defendant’s
private interests are of sufficient weight to overcome the presumption.” Id.
This presumption afforded to the plaintiff’s forum choice is a critical part of
the analysis in light of the fact that the whole premise behind the forum non
conveniens doctrine is that the plaintiff’s choice of forum, even if inconvenient to
the plaintiff, is sufficiently inconvenient for the defendant. In other words, the
assumption is that there is in fact a more convenient forum to litigate the dispute,
but that the plaintiff selected the chosen forum to gain a strategic advantage. See
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) (“A plaintiff sometimes is
under temptation to resort to a strategy of forcing the trial at a most inconvenient
place for an adversary, even at some inconvenience to himself.”).
The third step of the inquiry, as formulated in Kinney, is reached when,
“after taking into account the presumption favoring the plaintiff’s choice of
forum,” the trial court determines that the private interest factors are at or near
equipoise, meaning that “the advantages and disadvantages of the alternative forum
will not significantly undermine or favor the ‘private interests’ of any particular
party, as compared with the forum in which suit was filed.” Kinney, 674 So. 2d at
91. In that instance, the court must then weigh the “public interest factors,” which
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is an analysis that “focuses on ‘whether the case has a general nexus with the
forum sufficient to justify the forum’s commitment of judicial time and resources
to it.’ ” Id. at 92 (quoting Pain, 637 F.2d at 791).
In Kinney, we noted, along with adopting the federal test for forum non
conveniens, that we would consider federal court opinions that “harmonize with
the views expressed” in that opinion to be “persuasive, though not necessarily
binding.” Id. at 93. Since we decided Kinney, the Eleventh Circuit has clarified its
approach to the third factor of the federal forum non conveniens test, emphasizing
that public interest factors should always be considered as part of the analysis,
rather than only in select cases where the private interests are at or near equipoise.
See SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d
1097, 1100 n.5 (11th Cir. 2004).
The Eleventh Circuit has explained that “although ‘private factors are
generally considered more important’ than public ones,” a proper forum non
conveniens inquiry actually requires courts to “consider both public and private
factors ‘in all cases.’ ” Id. (quoting Leon, 251 F.3d at 1311). In addition, other
courts have noted that, while some articulations of the forum non conveniens test
analyze the public interest factors only when the private interests are at or near
equipoise, language in the United States Supreme Court’s decision in Piper
indicates that “a trial court must consider ‘all relevant public and private interest
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factors.’ ” Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1185 (R.I. 2008)
(emphasis added) (quoting Piper, 454 U.S. at 257).
Because we believe that always considering the public interest factors in the
inquiry furthers the policies behind our adoption of the forum non conveniens test
set forth in Kinney, we deem the Eleventh Circuit’s clarification of this factor to be
persuasive, and we therefore now adopt it as a part of the Florida test.
Accordingly, consistent with the Eleventh Circuit’s approach and the approach
taken by many other jurisdictions, we emphasize that Florida courts also should
always consider this third step of the forum non conveniens inquiry, even if the
private factors weigh more heavily in favor of the alternative forum, and should
require that the balance of public interests also be tipped in favor of the alternative
forum in order to defeat the presumption favoring the plaintiff’s forum choice. See
Kinney, 674 So. 2d at 92 (stating that “if the public interest factors . . . are at or
near equipoise, then the third step of the inquiry will provide no basis for defeating
the presumption favoring [the] plaintiff’s choice of forum”).
The fourth and final Kinney factor is “designed to ensure that when a forum
non conveniens dismissal is granted, the remedy potentially available in the
alternative forum does not become illusory.” Id. As we explained in Kinney, this
requires that the courts of the alternative forum are genuinely open and available to
provide a convenient remedy and that the moving party stipulate to treat the action
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in the new forum as though it had been filed in that forum on the date it was filed
in Florida. Id.
Having now reaffirmed and clarified the four factors that encompass a forum
non conveniens analysis in Florida, we turn next to a closer examination of the
strong presumption in favor of the plaintiff’s choice of forum.
II. Strong Presumption in Favor of Plaintiff’s Initial Forum Choice
In Kinney, where this Court adopted the presumption in favor of the
plaintiff’s initial choice of forum as part of the forum non conveniens test, the facts
were as follows. A New Hampshire corporation registered to do business in
Florida but with its central operations in New Jersey sued a Delaware corporation
headquartered in New York over a dispute to a contract negotiated in New York
and applicable to employees around the country, including in Florida. Id. at 87.
Relying on the defendant’s regional office and operation in Dade County, the
plaintiff brought suit in Florida regarding the contractual dispute, even though the
contract was negotiated in New York and neither corporate party had its principal
place of business in Florida. Id. Accordingly, the case’s connection to Florida was
tenuous at best, and clearly the plaintiff was not a Florida resident.
Yet, in Kinney, this Court adopted the rule that a plaintiff’s choice of forum
is entitled to a strong presumption. We did not limit this presumption in Kinney to
Florida plaintiffs or indicate in any way that the policy behind this rule would
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automatically be eviscerated by applying it to out-of-state residents. Indeed, it is
axiomatic that the plaintiff has the right to choose the forum. While the doctrine of
forum non conveniens is designed to prevent an abuse of that right when it would
cause a material injustice to the defendant, it certainly 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.
Although we recognize that at least two of Florida’s district courts 5 and
some other states 6 have interpreted the federal case law to mean that, as is the case
with a plaintiff from another country, less deference is likewise owed to an out-ofstate resident’s choice of forum, we do not agree that the strong presumption in
favor of the plaintiff’s choice of forum applies only to Florida residents. 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 United States courts. See SME
Racks, 382 F.3d at 1101 (stating that courts “should be thoroughly convinced that
5. See Kerzner Int’l Resorts, Inc. v. Raines, 983 So. 2d 750, 752 (Fla. 3d
DCA 2008); Value Rent-A-Car, Inc. v. Harbert, 720 So. 2d 552, 555 (Fla. 4th
6. See, e.g., Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28,
33 (Tex. 2010); Lowe v. Norfolk & W. Ry. Co., 463 N.E.2d 792, 798 (Ill. App. Ct.
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material injustice is manifest before . . . deny[ing] a United States citizen access to
the courts of this country” (quoting La Seguridad v. Transytur Line, 707 F.2d
1304, 1308 n.7 (11th Cir. 1983))).
In Kinney, we adopted the federal test for forum non conveniens, and we
acknowledge that the federal courts have held that the presumption in favor of a
plaintiff’s forum choice does not apply with equal force in federal litigation to
“foreign” plaintiffs, meaning those plaintiffs from another country. See Piper, 454
U.S. at 256. However, in federal litigation, a federal district court can transfer the
case from the state where the case was filed to any other state within the United
States. See 28 U.S.C. § 1404(a) (2008) (“For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought.”). This means,
therefore, that the federal forum is truly the entire United States, and the
considerations that have led the federal courts to conclude that plaintiffs from
another country are not entitled to the same deference with respect to their initial
choice of forum are therefore different than the reasons for affording the
presumption to a plaintiff from another state.
A principal reason for treating plaintiffs from foreign countries differently is
that “courts are suspicious that a foreign plaintiff’s decision to bring suit in the
United States is motivated by a search for a jurisdiction with laws that would be
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the most favorable for the claim.” Windt v. Qwest Commc’ns Int’l, Inc., 544 F.
Supp. 2d 409, 417 (D.N.J. 2008). For example, in Piper, the United States
Supreme Court rejected the Scottish plaintiffs’ contention that Scotland did not
recognize strict liability as a basis for deciding that Scotland was an inadequate
forum in the lawsuit filed by citizens of Scotland. Piper, 454 U.S. at 254-55. The
Supreme Court stated that United States courts, “which are already extremely
attractive to foreign plaintiffs, would become even more attractive” if
considerations such as a change in law and the rights and procedures of courts in
other countries were determinative in a forum non conveniens analysis. Id. at 252
Another application of the differing considerations at play when a plaintiff is
from another country is found in Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th
Cir. 2002). There, the plaintiff, a Mexican citizen, purchased an American vehicle
in Mexico, and the accident at the center of the dispute occurred in Mexico. Id. at
379. The issue in that case was whether “the limitation imposed by Mexican law
on the award of damages renders Mexico an inadequate alternative forum for
resolving a tort suit brought by a Mexican citizen against a United States
manufacturer.” Id. In rejecting this argument, the Fifth Circuit explained that
“Mexico, as a sovereign nation, has made a deliberate choice in providing a
specific remedy for this tort cause of action. . . . It would be inappropriate—even
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patronizing—for us to denounce this legitimate policy choice by holding that
Mexico provides an inadequate forum for Mexican tort victims.” Id. at 381-82
A lawsuit filed by a United States citizen, however, “brings into force
considerations very different from those in suits between foreigners.” Swift & Co.
Packers v. Compania Colombiana del Caribe, S.A., 339 U.S. 684, 697 (1950). As
cogently explained by the Eleventh Circuit, the “presumption in favor of the
plaintiffs’ initial forum choice in balancing the private interests is at its strongest
when the plaintiffs are citizens, residents, or corporations of this country.” Wilson
v. Island Seas Invs., Ltd., 590 F.3d 1264, 1270 (11th Cir. 2009) (quoting SME
Racks, 382 F.3d at 1101).
It is for this reason that, in adopting the presumption in Kinney, we never
indicated that, even though the presumption of deference to the plaintiff’s initial
choice of forum is a critical element of the forum non conveniens test, it did not
apply to the non-Florida plaintiff’s choice in Kinney of a Florida forum.
Accordingly, we now emphasize, in another case involving a non-Florida plaintiff,
that except where the plaintiff is from another country, the presumption in favor of
the plaintiff’s initial choice of forum is always entitled to great deference.
Additionally, when the plaintiff is a citizen or resident of the United States
and the alternative forum is a foreign country, the defendant’s burden to overcome
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this presumption is especially high. As stated by the Eleventh Circuit, courts
“should be thoroughly convinced that material injustice is manifest before . . .
deny[ing] a United States citizen access to the courts of this country.” SME Racks,
382 F.3d at 1101 (quoting La Seguridad, 707 F.2d at 1308 n.7).
III. This Case
Turning to this case, the Third District committed two errors in its analysis
of the forum non conveniens factors. First, the Third District erred by misapplying
our decision in Kinney that the plaintiff’s choice of forum is entitled to deference
and in not affording this presumption to Rabie Cortez’s choice of a Florida forum
for her claim against the Florida Defendants. As we have explained, the plaintiff’s
right to choose the forum is not just one factor to consider in the forum non
conveniens analysis, but is a strong presumption that can be overcome only when
the balance is tipped strongly in favor of the defendant. See Gulf Oil, 330 U.S. at
508 (“[U]nless the balance is strongly in favor of the defendant, the plaintiff’s
choice of forum should rarely be disturbed.”).
We agree with Judge Rothenberg’s dissent that “[b]efore denying a United
States citizen access to the courts of this country, the reviewing court must ‘require
positive evidence of unusually extreme circumstances, and should be thoroughly
convinced that material injustice is manifest.’ ” Rabie Cortez, 66 So. 3d at 969
(Rothenberg, J., dissenting) (quoting SME Racks, 382 F.3d at 1101). Rabie
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Cortez, a United States citizen, therefore should not be forced to litigate her claim
in a foreign country absent strong countervailing interests, which are not present in
this case, that tip the balance in favor of the Florida Defendants.
Second, the Third District erred in its analysis of the private interest factors,
principally by treating Rabie Cortez’s cause of action as though it had no
connection with Florida and instead focusing on the case’s underlying connection
with Mexico. This was error because, although the assault occurred in Mexico and
Rabie Cortez initially brought suit against numerous defendants, including
Mexican companies, for claims closely related to the assault itself (such as
vicarious liability and negligent employee hiring), Rabie Cortez’s only remaining
allegation is her complaint of negligent vacation packaging by the three Florida
Defendants headquartered in Miami. In other words, although the assault was the
precipitating event for her filing suit, Rabie Cortez is actually alleging negligent
conduct arising from actions committed in Florida. Judge Rothenberg explained
this point in her dissent as follows:
The Florida Defendants, with a straight face, claim that [Mexico] is a
more convenient forum to litigate a United States citizen’s negligent
vacation packaging claim against them, although Miami is where their
corporate headquarters is located, all the Palace Resort hotels’
vacation packages are approved, and all customer complaints are
investigated. Because Miami is the operational, managerial, and
marketing center for the entire Palace Resorts group, the Florida
Defendants control marketing and sales, and Miami is the record
keeping center for the Mexican Palace Resorts hotels, it is difficult to
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understand how, based on Cortez’s causes of action, Mexico would be
a more convenient forum.
It is therefore clear that, although Rabie Cortez is a California resident, the
Florida Defendants have their “operational, managerial, and marketing”
headquarters in Miami. Id. at 965. As the Third District itself has stated in other
cases, “a forum non conveniens argument coming from a party sued where [it]
resides is both ‘puzzling’ and ‘strange.’ ” Cardoso v. FPB Bank, 879 So. 2d 1247,
1250 (Fla. 3d DCA 2004) (quoting Sanwa Bank, Ltd. v. Kato, 734 So. 2d 557, 561
(Fla. 5th DCA 1999)). Indeed, “the fact that the defendants are located in this
country,” and especially in this state, “is one indication that it would be less
burdensome for the defendants to defend suit in this country than it would be for
[the plaintiff] to litigate in a foreign country.” Lehman v. Humphrey Cayman,
Ltd., 713 F.2d 339, 346 (8th Cir. 1983); see also Reid-Walen v. Hansen, 933 F.2d
1390, 1395 (8th Cir. 1991); Manu Int’l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 67
(2d Cir. 1981).
Further, we emphasize that the proper focus of the forum non conveniens
inquiry and the analysis of the private interest factors is not to decide where the
best location for bringing suit would be, but rather to analyze whether, after
affording a strong presumption to the plaintiff’s choice of forum and considering
the balance of private conveniences, it is in the interest of Florida’s courts to use
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their inherent power to decline to exercise jurisdiction over the dispute because
Florida is an inconvenient forum. This recognition corresponds with our earlier
clarification that public interest factors, including Florida’s interest in the dispute,
should always be considered as part of the forum non conveniens analysis.
In Kinney, we made it clear that our rationale for adopting the federal forum
non conveniens test was grounded in the realization that Florida’s right of access to
the courts should not be “a limitless warrant to bring the world’s litigation here,”
and that reasonable limitations must be placed on actions in which Florida’s
interests are weak and remedies are available in a convenient alternative forum that
has a better connection with the dispute. Kinney, 674 So. 2d at 92-93. Key to this
inquiry, therefore, is an analysis of what Florida’s interests are in a given case.
Here, those interests are many, including most importantly “ensuring that
harmful actions originating in Florida, which may violate duties imposed by
Florida law, are properly addressed in Florida courts.” Rabie Cortez, 66 So. 3d at
972 (Rothenberg, J., dissenting). In addition, Florida has an interest in permitting
Rabie Cortez, a United States citizen, to maintain an action against United States
corporations in a United States forum—especially where the lawsuit’s connection
to Florida justifies Florida’s commitment of judicial time and resources to the case.
Finally, we note that although the courts have applied a minimum
requirement to what constitutes an adequate alternative forum, see, e.g., Leon, 251
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F.3d at 1311 (explaining that “courts have not always required that defendants do
much to refute allegations of partiality and inefficiency in the alternative forum”),
the allegations from the plaintiff’s expert in this case, while not tested through an
evidentiary hearing, are of concern. In particular, the plaintiff’s expert stated that
the negligent vacation packaging claim at issue would not be cognizable in Mexico
and that Rabie Cortez would have to “adapt her legal theory to Mexican causes of
action that have rarely, if ever, been employed.” Rabie Cortez, 66 So. 3d at 968.
In order to file suit in Mexico, therefore, the plaintiff would have to utilize obscure
causes of action that are essentially not cognizable in the Mexican courts where a
forum non conveniens dismissal would force the lawsuit to be filed. See
Telemundo Network Grp., LLC v. Azteca Int’l Corp., 957 So. 2d 705, 710 (Fla. 3d
DCA 2007) (finding that the plaintiff’s potential causes of action in Mexico
amounted to no remedy at all, partly due to a lack of precedent). As Judge
Rothenberg pointed out in her dissent, the “lack of precedent, and reliance on a
theoretical possibility of recovery, casts doubt on the adequacy” of the Mexican
forum in this case. Rabie Cortez, 66 So. 3d at 968 (Rothenberg, J., dissenting).
Ultimately, Rabie Cortez’s allegations center on the Florida Defendants’
allegedly negligent conduct in Miami, where their operational headquarters are
located. We echo the statement in the dissent below that Rabie Cortez “cannot be
denied access to the courts of this country absent a strong showing by the Florida
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Defendants that her lawsuit against them would result in substantial inconvenience
for them to litigate in her choice of forum.” Id. at 973. Given the presumption in
favor of Rabie Cortez’s Florida forum choice, the location of the allegedly
negligent conduct, and Florida’s interest in hearing disputes involving negligent
conduct in Florida, we hold that dismissal of Rabie Cortez’s lawsuit on forum non
conveniens grounds was improper.
In sum, we conclude that requiring Rabie Cortez, a California resident, to
litigate a claim in Mexico against defendants headquartered in Florida for allegedly
negligent conduct that occurred in Florida was an erroneous application of the
forum non conveniens doctrine in this case. For the reasons stated herein, we hold
that the Third District erred in its application of Kinney, especially by failing to
afford a strong presumption to Rabie Cortez’s choice of forum. 7 Accordingly, we
quash the Third District’s decision.
It is so ordered.
LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
7. We note, however, that this Court has not been called upon to review the
nature of the allegations or the adequacy of the cause of action asserted.
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CANADY, J., dissenting.
Because I conclude that there is no express and direct conflict between the
decision of the Third District Court on review and Kinney System, Inc. v.
Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), I would discharge
The majority—perhaps with good reason—disagrees with the conclusion
reached by the trial court and the district court after they weighed the factors
required to be weighed under Kinney. But the fact that a majority of this Court
disagrees with how a lower court has weighed the Kinney factors does not
establish express and direct conflict. Based on the majority’s reasoning on the
jurisdictional issue here, conflict can be found in any case where a majority of this
Court disagrees with the conclusion reached by a lower court after weighing the
The Third District Court carefully addressed the Kinney factors and said
nothing that is in conflict with our decision in Kinney. This court lacks jurisdiction
to revisit the decision made by the Third District Court.
POLSTON, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
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Third District - Case No. 3D09-3468
Michael Diaz, Jr., Carlos F. Gonzalez, Gary E. Davidson, and Xingjian Zhao of
Diaz, Reus & Targ, LLP, Miami, Florida,
Ricardo J. Cata and Ronnie Guillen of Wilson, Elser, Moskowitz, Edelman &
Dicker LLP, Miami, Florida,
Joel S. Perwin, Miami, Florida,
for Amicus Curiae The Florida Justice Association
Catherine B. Chapman of Guilday, Tucker, Schwartz & Simpson, P.A.,
for Amicus Curiae The Florida Defense Lawyers Association, Inc.
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