Inverpan S.A. v. American Express Bank International et al, No. 1:2007cv22071 - Document 256 (S.D. Fla. 2009)
Court Description: FINAL ORDER granting 239 Motion to Dismiss for Lack of Jurisdiction for forum non conveniens. Signed by Senior Judge James Lawrence King on 8/21/2009. (dg)
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Inverpan S.A. v. American Express Bank International et al Doc. 256 UNITED STATES DISTRICT CC)C'R.'I' SOUTHERN DISTRICT OF FLORIIIDI A MIAMI DIVISION Case No. 07-22071-CIV-KIN<: INVERPAN, S.A., a Panamanian corporation, Plaintiff, BERTHA BRITTEN and ALDRIC WERLEMAN, Defendants. FINAL ORDER OF DISMISSAL FOR FORUM N'd]!!!:CONVENIENS THIS CAUSE comes before the court upon Defendants' Ir41:1tionto Dismiss Case Based on Doctrine of Forum Non Conveniens (DE #239). Plaintiff has file~da response (DE #246), and Defendants have replied (DE #254). I. Background Plaintiff Inverpan is a Panamanian corporation. Its sole shsjl-t.rholder,Anna Hochman, and its current principal director, Haim IHochman, reside in Aruba. 'I'ht: ~ w oremaining defendants in this case, Bertha Britten and Aldric Werleman, both of whom v1r:l.e Inverpan employees, also reside in ~ r u b a ' .Inverpan maintained a bank account in Miami, \r,hich was managed by several of its employees. Inverpan alleges that funds from this bank accclu~ltwere stolen in two ways. First, it alleges that Britten somehow coerced Anna Hochrnan into I.rimsferring Inverpan funds to Britten's personal account. Second, it alleges that Werelenum., ,in the course of his duties, ' Originally Inverpan named American Express Bank International and one of its e tnployees as defendants. Both of those defendants have since been dismissed from the case. 1 Dockets.Justia.com transferred Inverpan funds to his personal bank account. Defendimts have now filed the instant Motion to Dismiss for Forum Non (Zonveniens, arguing that the pr'l:,] ller forum should be Aruba. 11. Standard of Review The doctrine of forum non conveniens gives district couttlatthe discretion to dismiss a case, even if jurisdiction and venue are proper, when it appear:, that the convenience of the parties and the interests of justice weigh in favor of trying the ac:tic~nin an alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). For a. pli~~lty to prevail on a motion to dismiss for forum non conveniens, the party must demonstrate thd "(I) an adequate alternative forum is available, (2) the public imd private factors weigh in f';i\ior of dismissal, and (3) the undue inconvenience or plaintiff can reinstate his suit in the alternative forum with~r)i.i~t prejudice." Leon v. Miller Air, Inc., 251 F.3d 1305, 1311 (I lth Cir. $1001). First, "the defendant must demonstrate both the availiibilily and the adequacy of the proposed alternative forum." Tyco A%-e& Sec., L.L.C. v. Alcocer., ;!l8 F. App'x 860, 865 (1 lth Cir. 2007). Generally, a forum is available if it is amenable to sen)Ice of process or the opposing party consents to jurisdiction in the alternative forum. See Piptzr 4rrcraft Co., 454 U.S. at 242. Moreover, a forum is generally adequate if it can provide some re ic.bf for plaintiffs claims. See id. Additionally, a forum is still adequate even if "the substantlive law that would be applied in the alternative forum is less favorable to the plaintiffs than thiit of the present forum." Id. Finally, although there is a presumption against disturbing the pli~i~ltifrs choice of forum, that presumption "applies with less force when the plaintiff or real pilrlies in interest are foreign." Piper Aircraft Co., 454 U.S. at 255. Second, if an available and adequate alternative forum t.~xists,the trial judge then considers "all relevant factors of private interest, weighing in the h i dance a strong presumption against disturbing plaintiffs' initial1 forum choice." C.A. La Segu~.idadv. Transytur Line, 707 F.2d 1304, 1307 (1 1th Cir. 1983). These private interest consitletalions are factors affecting the of proof; 2) availability of convenience of the litigants and include 1) ease of access to sour~;~,~s possibility of view of the compulsory process and cost of attendance of witnesses; 3)l tl-ILC: premises, if view would be appropriate; and 4) any other problems t liat assist in the progress of a 1, LS.A.,382 F.3d 1097, 1102 trial. See SME Rach, Inc. v. Siste,was Mecanicos Para Electrcwz~r-I (1 1th Cir. 2004). If the balance of private interests is not clear, the trial "iudge must "then determine whether or not factors of public interest tip the balance in favor ol' a trial in a foreign forum." C.A. La Seguridad, 707 F.2d at 1307. The public interest factors ( i.e., considerations affecting the convenience of the forum) are the administrative difficulties for courts when litigation is not handled at its origin. See Gulf 011 Corp., 330 U.S. at 508. Tht: public interest factors to be considered include "[l] court conge:stion, [2] the local interest in lhl.: controversy, [3] avoidance of unnecessary problems in the application of foreign law, and [I!.] avoidance of imposing jury duty on residents of a jurisdiction having little relationship to tht: cl:)~~~troversy." Licea v. Curaqao Drydock Company, Inc., 537 F. Supp. 2d 1270, 1276 (S.D. Fla. 2(.11(18);see also Gulf Oil Corp., 330 U.S. at 508. 111. Discussion A. Timeliness of Defendants' Motion As an initial matter, Plaintiff argues that Defendants' Mlotlon to Dismiss is untimely, because ordinarily a forum non conlreniens motion must be filed "within a reasonable time after the facts or circumstances which serve as the basis for the motior~11avedeveloped and become 1s Resort, Inc., 875 F.Supp. known or reasonably knowable to th~edefendant." Lugones v. Slznil'~~ 821, 823 (S.D. Fla. 1995). Plaintiff argues that Defendants have Iniown for two years, since the inception of this lawsuit, of such facts and circumstances. Hor+~:ver,the original complaint named American Express Bank Inl:ernational, the bank at which Il~verpan'saccount is located, and Gregorio Echevarria, the employee who helped manage the act:(, bunt. Those defendants were not dismissed from this case until March 23, 2009 (DE #203). "il"l~us,until that time, the case involved substantial allegations of wrongdoing by an Arnericar~l~lankand a Florida resident. Dismissing those defendants, leaving only Panamanian artd tiruban parties, changed the landscape significantly. Given these considerations, the motion to tli smiss is not untimely. B. An Available and Adequate Alternative Forum? Defendants argue that Aruba is an available and adequate fi:~r~um in which this lawsuit can be filed. Aruba is available because Defendants have consenteld r:o jurisdiction there (DE #239, p.6). Moreover, an adequate forurn need not be perfect; rather, ii must afford a "satisfactory remedy" even though that remedy may be different from that w -1i1:h could be obtained in the United States. See Panama Shipping v. Ciramar Int'l Trading, jl!,ld., 2009 U.S. Dist. LEXIS 27547 *9 (S.D. Fla. 2009). Here, Plaintiff does not contend th;~ltthe Aruban court system is corrupt, undemocratic, or incompe1:ent-in fact, just the oppositr;:. (See DE #246, p. 7 ("The Plaintiff also does not dispute that Aruban judges are highly c;ip4i~blle and competent jurists.")). Plaintiffs chief objection to the Aruban forum is delay; however, t lelay alone does not make a forum inadequate. Further, the case cited by Plaintiff regarding ad 421luacy of the forum, Jackson v. Grupo Industrial Hotelero, S.A., :!008 U.S. Dist. LEXIS 88922 1::s D. Fla. 2008), is inapposite. grounds because it In Jackson, the court refused to dismiss the case on forum nor1 c:oi9~veniens found that the Mexican court system was not sufficiently capable clf handling large and complex intellectual property litigation. See zd. at "34. Here, there is no i11lt:gation that the Aruban courts will be unable to handle this case, which simply involves the cor~\r~,~rsion of corporate funds. In fact, the uncontradicted affidavits filed in support of the motion s 11wthat Aruba recognizes the cause of action of misappropriation that can provide Plaintiff wi~thn:lief (DE #240). Therefore, the Court finds that Aruba is an available and adequate forum in wtii ch this lawsuit can be filed. C. The Private Interest Factors Having concluded that an available and adequate forum ex I I I ~ the Court then turns to the , ;) private interest factors, which include 1) ease of access to sowcepi of proof; 2) availability of compulsory process and cost of attendance of witnesses; 3) ttler possibility of view of the premises, if view would be appropriate; and 4) any other problem:; tliat assist in the progress of a trial. First, ease of access to sources of proof is the most signifi::ant factor in this case. Here, the sources of proof will be witness, testimony and documentary e vide~ice. The vast majority of witnesses, including Mrs. Hochrnan, Mr. Hochman, Ms. Britte:n., Mr. Werleman, and other Inverpan employees, are all located in Aruba. The only witness iri I1,diami is Mr. Echevarria, the former bank employee. Most of the testimony will be about evenlr; that occurred in Aruba. Key depositions that have already been taken have been conducted in Dutch and Papiamento, and their transcripts translated into English. Further, even if all th~: documents were located in Miami, the ease of document transfer in this day and age make!; that a minor consideration. Thus, this factor weighs in favor of the Aruban forum. Second is the availability of compulsory process and cost of witness attendance. Although Aruba is a party to the Hague Convention, which sul>je:t:ls Aruba to certain forms of subpoena power, "[tlhese procedl~res are cumbersome and time-consuming." Mastafa v. Australian Pheat Bd. Ltd., 2008 U.,S. Dist. LEXIS 73305 "28 (S.1:) N.Y. 2008). Moreover, the cost of witness attendance, which will require witnesses to trawl from Aruba and Panama to Miami, is very high compared to the cost of attendance in Atlub,~.Thus, this factor weighs in favor of the Aruban forum. Third is the possibility of view of the premises, which h~asno application in this case. Fourth is any other practical problem of trial. Here, this would in(:I~ldethe fact that many of the witnesses do not speak English imd would require translators, which would be especially cumbersome in this case, which will require a determination of \rrl~~ether words spoken to Mrs. Hochman were coercive or unduly influential, and when Mrs. Hoc,t11 ma11understood the nature of her actions. Such subtleties in language are often lost in trans la ti or^. Thus, the private interest factors weigh in favor of dismissal. D. The Public Interest Factors Because the private interest factors are neither in equipoise 11or near equipoise, the Court need not address the public interest factors. However, for purposc:s of thoroughness, the Court will briefly address these factors, which include 1) court congestil:)~~~, 2) the local interest in the controversy, 3) avoidance of unnecessary problems in the app1ic:altion of foreign law, and 4) avoidance of imposing jury duty on residents of a jurisdiction hi~viinglittle relationship to the controversy. First is court congestion, which is not a problem in either caul-t. Second is the local interest in the controversy. This case invc~lvestwo Aruban defendants who allegedly stole money from a P,anamaniancompany, througlh at: l ions that occurred mostly in Aruba. The only local connection is the fact that the bank accoi~u~~t which held the allegedly stolen money was located here in Miami. This presents a matiel of minimal local interest. Although Floridians certainly have an interest in ensuring the integrity of their local bank accounts, the location of the money is immaterial. The main ~tlmrustof this action is that a Panamanian company was wronged by Arubans acting in Aruba, an11the money just happened to be in a Miami bank. Thus, this factor weighs in favor of the Arubatl forum. Third is the avoidance of unnecessary problems in the appl iication of foreign law. That ld Certain actions issue is present here, as it is unclear whether Florida or Aruban lav, ~ ~ o uapply. ~ money to his own use, but of Mr. Werleman were allegedly talren in Miami to convert I n v e r p , 's Ms. Britten's actions of allegedly coercing Mrs. Hochrnan to translilt- money to Britten's account occurred in Aruba. Thus, this Court would be presented with tl~r:possibility of applying one forum's law to one set of actions and one forum's law to anotl~er This is the type of problem that can be avoided by dismissal for forum non conveniens, so thi~tthe Aruban courts can apply and construe their own law. Even if this were not the case, holwean:r, there is still a conflict on which forum's law would apply, which tips this factor in favor of dilsmissal. Fourth is the avoidance of jury duty on residents ha\jll~~g little relationship to the controversy. This factor weighs in favor of the Aruban forum for ilhe same reasons that Miami lacks a local interest in the controversy. Jurors residing in the Soull~l,:mDistrict of Florida would be asked to protect the rights of Amban citizens and vindicate th~:interests of a Panamanian corporation. On the other hand, "a defendant's home forum alvvays has an interest in providing redress for injuries caused by its ciitizens." Pan. Shipping Lines, hic. v. Ciramar Int'l Trading, Ltd., 2009 U.S. Dist. LEXIS 27547 "6 (S.D. Fla. 2009). Thus. this factor weighs in favor of the Aruban forum. In sum, the public interest factors also weigh in favor of clisin ~ssal. E. Undue Inconvenience or Prejudice The final step in the analysils is to determine whether th~er~st [willbe undue inconvenience or prejudice in requiring the plaintiff to re-file the suit in a new fo1.11~ n. The Court concludes that no such inconvenience or prejudice exists. Although Inverpan I3 a Panamanian company, its principal directors and shareholder reside in Amba, which is \vhr:s~=most of the witnesses are. Moreover, although the case has been pending in this Court for ,a suil rstantial amount of time, it is still in the discovery stages, and several depositions have already bee11taken. Thus, it will not require duplicative efforts. Finally. Defendants have stipulated to j lrisdiction there. Therefore, the Court finds that Plaintiff will not suffer undue inconveniencx r I )re-judiceby having to re-file 01 in Amba. IV. Conclusion After carefully considering the adequacy of the alternate ii.lmm, the private and public interest factors, and the possible ir~convenience,the Court concluucl~esthat the factors weigh in Defendants have met their favor of dismissal of this case on forum non conveniens grounds, ;ur~~d burden of so proving. Accordingly, it is ORDERED, ADJUDGE]:), and DECREED that: 1. Defendants' Motion to Dismiss on Forum Non cColilq,leniens Grounds (DE #239) be, and the same is hereby GRANTED. 2. All pending motions are DENIED as MOOT. 3. The Clerk shall CLOSE this case. DONE and ORDERED .in chambers at the James L,;lv,lrenceKing Federal Justice Building, Miami, Florida, this 21st day of August, 2009. cc: Clerk of Court Magistrate Judge Ted E. Bandstra Counsel for Plaintiff Michael Scott Budwick Meland Russin & Budwick PA 200 S Biscayne Boulevard Suite 3000 Wachovia Financial Ctr. Miami, FL 33131 305-358-6363 Fax: 358-1221 Email: mbudwick@melandrussin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert J. McKee Krupnick Campbell Malone Roselli et a1 700 SE 3rd Avenue Suite 100 Fort Lauderdale , FL 333 16-1186 954-763-8181 Fax: 763-8292 Email: rmckee@krupnicklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Daniel Nattan Gonzalez Meland Russin & Budwick PA 200 S Biscayne Boulevard Suite 3000 Wachovia Financial Ctr. Miami, FL 33131 305-358-6363 Fax: 358-1221 Email: Dgonzalez@melandrussin.com ATTORNEY TO BE NOTICED Deborah B. Jofre Meland Russin & Budwick, PA 200 S. Biscayne Blvd. Suite 3000 Miami, FL 33131 305-358-6363 Fax: 305-358-1221 Email: djofre@melandrussin.com ATTORNEY TO BE NOTICED Counsel for Defendants Carlos Federico Osorio Aballi Milne Kalil & Escagedo 1 SE 3rd Avenue Suite 2250 Miami, FL 33131 305-372-5943 Fax: 373-7929 Email: cosorio@aballi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Hendrik Gerardus Milne Aballi Milne Kalil & Escagedo 1 SE 3rd Avenue Suite 2250 Miami, FL 33131 305-373-6600 Fax: 373-7929 Email: hrnilne@aballi.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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