SCOTTS CO. V. HACIENDA LOMA LINDA

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 THE SCOTTS COMPANY, a foreign corporation, SCOTTS-SIERRA HORTICULTURAL PRODUCTS COMPANY, a foreign corporation, and BOB SANTANA, ** Appellants/ Cross-Appellees, ** ** CASE NO. 3D05-1331 ** vs. ** HACIENDA LOMA LINDA, a foreign corporation, LOWER TRIBUNAL NO. 04-08937 ** Appellee/ Cross-Appellant. Opinion filed June 7, 2006. An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Clarke Silvergate Campbell Williams & Montgomery and Dennis M. Campbell and Karen H. Curtis, for appellants/cross-appellees. Joseph, Jack & Miranda, P.A., and Susan S. Lerner, for appellee/cross-appellant. Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge. PER CURIAM. The Scotts Horticultural Company, Products its Company subsidiary, Scotts-Sierra [collectively Scotts ], and employee Bob Santana, appeal an order denying their motion to dismiss on forum non conveniens grounds. Loma Linda [ Hacienda ] cross-appeals. Plaintiff Hacienda We reverse the order. The crux of this litigation is Hacienda s claim that a Scotts product Hacienda damaged brought this Miami-Dade County motions dismiss to hearing, during application and/or action Circuit based which against Court. on Kinney 1 hearing, the non orchid for and hotly the crops. damages Santana conveniens. parties factors, its Scotts Scotts forum the the of destroyed filed After contested court in denied a the the dismissal motion. At Hacienda the is a Panama business is in Panama. following corporation facts whose were developed. principle place of Hacienda s orchid nurseries are located in Panama and the alleged damage to the plants occurred there. All of Hacienda s officers and employees are in Panama. Hacienda s President, Dr. Juan Arias, resides in Panama, but he has a home in Miami-Dade County. He has an office in his Miami home where he maintains business records. in order to promote his business. 1 He frequents Florida Ninety-one percent of Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996). 2 Hacienda s orchids are sold to Miami-Dade County clients. Dr. Arias met Santana at a trade show in Florida where Hacienda allegedly first learned of the Scotts product at issue. Hacienda contends that its lawsuit will not be entertained in Panama courts because it has first filed this action in the United States. The ties to the forum state are as follows: Scotts, an Ohio corporation, has a research facility in Apopka, Florida, where the subject product was tested. and tested in South Carolina. The product is assembled Santana is based in Miami-Dade and is Scotts regional representative. Scotts has stipulated to submitting itself to the Panama courts jurisdiction and to satisfying any Panama court judgment, subject to its appeal rights. When we subject the facts recited above to the test enunciated in Kinney, we conclude that the court should have granted the forum non conveniens dismissal motion. requires that (1) [a]s a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. (2) 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. (3) 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 3 Kinney [another] forum. (4) 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. Kinney, 674 So. 2d at 90. As to the first Kinney factor, the availability of an adequate alternate forum, there is no disagreement that Panama is an available forum that can resolve this dispute. The parties contention seems to center on whether Panama has a preemptive jurisdiction doctrine that will bar a suit filed there if it has been filed in another forum. the record evidence leads us to However, our review of conclude that under the circumstances of this case, there is no pre-emption and Panama will be an adequate alternate forum available to resolve this dispute. Next, under Kinney, we consider the private interests in this litigation. It seems clear that the evidence and the vast majority of the witnesses in this case are located in Panama. The events took place there, and Scotts employees traveled there to observe Hacienda operations, the application of Scotts product, and later, the destruction of the damaged plants. Additionally, the plaintiff is a Panama corporation with its nurseries in Panama. The impracticability and expense of translating all the documents involved from Spanish to English also militate against 4 Florida being the forum of choice. The fact that Scotts markets its product extensively in Florida with great economic success is insufficient, without more, to support a conclusion that the private interests favor Florida as the forum for the lawsuit. Tananta v. Cruise Ships Catering & Servs. Int l, 909 So. 2d 874, 886 (Fla. 3d DCA 2004)(en banc), review denied, 917 So. 2d 195 (Fla. 2005). Moreover, we do not afford the plaintiff s choice of forum any special weight because the plaintiff is a foreign Mursia corporation. Invs. Corp. v. Industria Cartonera Dominicana, 847 So. 2d 1064 (Fla. 3d DCA 2003); Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617, 621 n.3 (Fla 4th DCA 1999); Value Rent-A-Car, Inc. v. Harbert, 720 So. 2d 552, 555 (Fla 4th DCA 1998). Therefore, the private interests are not at or near equipoise; they favor dismissal. Turning to the remaining Kinney factors, we only mention that as to the public interests, Florida has no interest in adjudicating the dispute of a Panama corporation whose property was injured in Panama by events taking place there. We see no ties to Florida in the record that would merit retention of the lawsuit here. See Tananta, 909 So. 2d at 888. Lastly, there would be no inconvenience or undue prejudice to Hacienda domicile. reinstating the suit in Panama, its country of Scotts has stipulated to its appearance there, and has stipulated to producing its personnel and discovery there. 5 As an additional safeguard, the parties must also stipulate as a condition of dismissal that the court retain jurisdiction in the event the Panama court does not entertain the case based on preemption. See Kawasaki Motors Corp. v. Foster, 899 So. 2d 408 (Fla. DCA), 3d Mursia. review denied, 915 So. 2d 1196 (Fla. 2005); The trial court should reserve jurisdiction to address this issue if this become necessary. Based on the foregoing, we reverse the order dismissal, and remand for entry of an order granting same. Reversed and remanded. 6 denying

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