Belik v. Carlson Travel Group, Inc
Filing
236
ORDER denying 103 MOTION to Dismiss 1 Complaint, Pursuant to the Forum Non Conveniens Doctrine and Operadora's Motion to Dismiss for Lack of Personal Jurisdiction and Supporting Memorandum of Law filed by Operadora Andersons S.A. de C.V., Palangania S.A. de CV 1/2 Senor Frogs. Signed by Judge Cecilia M. Altonaga on 10/1/2012. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-21136-CIV-ALTONAGA/Simonton
MICHAEL BELIK,
Plaintiff,
vs.
CARLSON TRAVEL GROUP, INC.
d/b/a SINGLESCRUISE.COM, et al.,
Defendants.
_______________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Operadora Anderson’s, S.A. de
C.V. (“Operadora”) and Palangana, S.A. de C.V.’s (“Palangana[’s]”) (sometimes collectively
referred to as the “Señor Frog’s Defendants[’]”) Combined Motion to Dismiss the Plaintiff’s
Complaint Pursuant to the Forum Non Conveniens Doctrine and Operadora’s Motion to Dismiss
for Lack of Personal Jurisdiction1 (the “Operadora/Palangana Motion” or the “Motion”) [ECF
No. 103], filed November 7, 2011. These Defendants move to dismiss the Complaint based on
the doctrine of forum non conveniens. They argue: (1) United States maritime law does not
apply to Plaintiff’s claims against them; and (2) Mexico would be a more appropriate venue for
the litigation against them. The SinglesCruise Defendants2 filed a Notice of Joinder . . . [ECF
Nos. 105, 106] on November 16, 2011, relying upon the memorandum and affidavits filed in
support of the Operadora/Palangana Motion.
1
On March 16, 2012 [ECF No. 193] Defendant Operadora withdrew its defense of lack of personal
jurisdiction.
2
The SinglesCruise Defendants consist of Travel Leaders Group, LLC, and Travel Leaders Leisure
Group, LLC.
CASE NO. 11-21136-CIV-ALTONAGA/Simonton
After taking jurisdictional discovery, Plaintiff, Michael Belik (“Belik” or “Plaintiff”),
filed his Response [ECF No. 195] on May 21, 2012.
Thereafter, Defendants engaged in
additional jurisdictional discovery, and recently submitted their Replies [ECF Nos. 219, 220,
221] on September 5, 2012. The Court has carefully reviewed the parties’ written submissions
and applicable law.
I. BACKGROUND
Plaintiff Belik is a New York resident who took a cruise upon Carnival Cruise Lines’
(“Carnival[’s]”) ship Valor in April 2010.
Belik purchased his ticket for the cruise from
Carnival’s agents, the SinglesCruise Defendants, which contract with Carnival to funnel
passengers to Carnival. The SinglesCruise Defendants marketed and sold to Belik a port-of-call
excursion in Cozumel, Mexico known as the “Cozumel Beach Party!”. The event was held at the
½ Señor Frogs Restaurant in the port of Cozumel within sight of the Valor. The “Cozumel
Beach Party!” was promoted to occur at the ½ Señor Frog’s Restaurant, complete with a rooftop
waterslide directly into the ocean, with “plenty of music and drinks to keep us partying the day
away!” (Belik Aff., Ex. G [ECF No. 195-1]). Belik maintains Carnival and the SinglesCruise
Defendants knew the passengers attending the “Cozumel Beach Party!” would be drinking and
partying, and would be encouraged to slide, jump, and dive into the waters from a seawall
adjacent to the ½ Señor Frog’s Restaurant. On April 9, 2010, Belik dove into the water from the
seawall on numerous occasions, and on his final dive, hit his head on the ocean floor, resulting in
tetraplegia.
The accident occurred in Cozumel, Quintana Roo, Mexico, at the Cozumel International
Cruise Terminal (“CICT”). The property in and around the CICT, including the surrounding
waters and adjacent submerged lands, is owned by the United Mexican States. The temporary
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use of the property was governed by concession agreements entered into between the Mexican
government and government-controlled companies like Administración Portuaria Integral de
Quintana Roo, S.A. de C.V.. At the time of Belik’s accident, the CICT was operated and/or
controlled by SSA, S.A. de C.V. (“SSA”).
Operadora holds an exclusive license to use, exploit, sub-license and sub-franchise the
brand names “Señor Frog’s” and “Carlos And Charlies.” On October 15, 2001, Operadora
entered into a franchise agreement with Palangana that permitted Palangana to use the “Señor
Frog’s” brand name. In December 2001, Palangana commenced its operation of the Señor
Frog’s Bar and Restaurant in downtown Cozumel. Thereafter, on March 1, 2002, Palangana
commenced its operation of the ½ Señor Frog’s Restaurant within the CICT. The ½ Señor
Frog’s Restaurant operated within an area of the CICT known as “Local 33.”
Palangana
obtained the right to occupy “Local 33” under a March 2, 2002 agreement with Distribuidora
Cuahtémoc Moctezuma de Cozumel, S.A. de C.V. (“DCM”), a Mexican beer distributor. DCM
obtained its right to sublease Local 33 pursuant to an agreement with TMM Puertos Y
Terminales, S.A. de C.V. (“TMM”). TMM was the Mexican corporation that once served as the
operator of the CICT before SSA.
Under its March 1, 2002 agreement with DCM, Palangana was permitted to promote and
advertise within certain areas of the CICT, including the area called the Beach Club. The Beach
Club is a common area located within the CICT, used as a common area for all persons allowed
to be present in the CICT.
The seawall Belik dove from was in the CICT, and Belik maintains that seawall was
controlled or managed by Operadora and Palangana. These Defendants, however, insist they did
not control and/or manage the seawall around the perimeter of the Beach Club from which Belik
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CASE NO. 11-21136-CIV-ALTONAGA/Simonton
dove. Rather, they assert the Mexican government owned the seawall, and it was controlled
and/or managed by SSA. After Hurricane Wilma, SSA rebuilt the Beach Club, including the
addition of the seawall located around the perimeter of the Beach Club from which Belik dove.
After the seawall was added, SSA used it as a revenue source by charging local Mexican water
sports concessionaires a tariff to transport customers. SSA utilized security guards to monitor
and invoice local Mexican water sports concessionaires’ use of the seawall. SSA also controlled
and limited access to the CICT property to authorized individuals.
On August 1, 2008, Palangana entered into a Temporary and Partial Use Agreement with
SSA for the right to use an area within the CICT called “Local 36.” The seawall was not a part
of the August 1, 2008 Agreement between Palangana and SSA for “Local 36.”
In October 2008, Palangana purchased a waterslide from CE Diseño Y Construcción,
S.A. de C.V. (“Diseño”), a Mexican corporation. The waterslide, manufactured by Fibrart, S.A.
de C.V., a Mexican corporation, was installed by Diseño. To obtain permission from SSA to use
the waterslide, Palangana was required to confirm to SSA that Palangana would be responsible
for damages the waterslide might cause to the seawall.
Plaintiff’s Complaint alleges several claims from breaches of duties allegedly owed to
him by several Defendants. The Complaint names the following Defendants: Carlson Travel
Group, Inc. d/b/a SinglesCruise.com; Travel Leaders Leisure Group, LLC; Travel Leaders
Group, LLC; Carlson Travel Holdings, Inc.;3 Carnival Corporation d/b/a/ Carnival Cruise Line;
Operadora Anderson S.A. de C.V. d/b/a Grupo Andersons; Palangana S.A. de C.V. ½ Señor
Frogs d/b/a Señor Frogs; Grupo Nogalero, S.A. de C.V. Carlos N Charlies d/b/a Carlos N
3
Belik has dismissed Defendant Carlson Travel Holdings, Inc. (See [ECF No. 38]).
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CASE NO. 11-21136-CIV-ALTONAGA/Simonton
Charlies.4
According to the Complaint, the SinglesCruise Defendants handled all aspects of the
cruise and “Cozumel Beach Party!,” and represented they would “manage the safety and security
of these events and provide a safe and high quality event and venue.” (Compl. ¶ 27 [ECF No.
1]). Carnival owed Belik a duty of care, including the duty to warn of dangers. (See id. ¶ 33).
The Señor Frog’s Defendants — which presently comprise Operadora and Palangana — as
owners or managers of the ½ Señor Frog’s Restaurant where Belik was injured, provided the
waterslide and unlimited drinks, and failed to provide security, warnings, or discouragement to
jumping or diving into the water. (See id. ¶¶ 38, 40).
With regard to the SinglesCruise Defendants, in Count I Belik alleges they were
negligent in providing security and managing the “Cozumel Beach Party!”. In Count II Belik
seeks to hold the SinglesCruise Defendants liable under a theory of negligent misrepresentation
involving risk of physical harm, relying on the Restatement Second of Torts § 311. Count III
states a claim of vicarious or agency liability against the SinglesCruise Defendants, alleging
these Defendants were the principal in an agency relationship with the Señor Frog’s Defendants.
In Count IV Belik states a claim of breach of contract as an intended third party beneficiary of
the SinglesCruise Defendants’ contract with the Señor Frog’s Defendants. Count V alleges the
SinglesCruise Defendants and the Señor Frog’s Defendants entered into a joint venture, and as a
result of that relationship, the SinglesCruise Defendants are liable for the negligence of the Señor
Frog’s Defendants.
Belik raises multiple claims of negligence against Carnival. In Count VI Belik alleges
Defendant, “Grupo Nogalero, S.A. de C.V. Carlos N Charlies d/b/a Carlos N Charlies,” was dismissed
by Order dated December 29, 2011 [ECF No. 114] due to Plaintiff’s failure to timely serve the Defendant.
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CASE NO. 11-21136-CIV-ALTONAGA/Simonton
Carnival failed to warn him of the known dangers surrounding the “Cozumel Beach Party!”. In
Count VII, Belik alleges Carnival is the principal to its agent, the SinglesCruise Defendants,
exercised control over them, and is responsible for their negligence. Count VIII is entitled
“Agency by Estoppel or Apparent Agency – Carnival,” and again seeks to hold Carnival
responsible for the SinglesCruise Defendants’ negligence. Count IX is a claim for breach of
contract as a third party beneficiary of Carnival’s contract with the SinglesCruise Defendants.
Count X alleges the existence of a joint venture between Carnival and the SinglesCruise
Defendants.
Count XI states a claim of negligence against the Señor Frog’s Defendants. Count XII
states a claim of breach of contract as a third-party beneficiary of any contract existing between
the Señor Frog’s Defendants and the SinglesCruise Defendants.
II. LEGAL STANDARD
A motion to dismiss based on forum non conveniens is a motion to dismiss for improper
venue pursuant to Federal Rule of Civil Procedure 12(b)(3). See Lipcon v. Underwriters at
Lloyd’s, London, 148 F.3d 1285, 1290 (11th Cir. 1998). The plaintiff must show that venue in
the chosen forum is proper. See Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D.
Fla. 2004) (citations omitted). For its part, the defendant invoking forum non conveniens “bears
the heavy burden in opposing the plaintiff’s chosen forum.” Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 430 (2007); Wilson v. Island Seas Investments, Ltd., 590 F.3d
1264, 69 (11th Cir. 2009). Although “the court may consider matters outside the pleadings,
particularly when the motion is predicated upon key issues of fact,” Webster v. Royal Caribbean
Cruises, Ltd., 124 F. Supp. 2d 1317, 1320 (S.D. Fla. 2000), it “must draw all reasonable
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CASE NO. 11-21136-CIV-ALTONAGA/Simonton
inferences and resolve all factual conflicts in favor of the plaintiff.” Wai, 315 F. Supp. 2d at
1268 (citations omitted).
III. ANALYSIS
It is well established that a case shall not be dismissed on forum non conveniens grounds
if, in a case brought under the Court’s admiralty jurisdiction, United States maritime law is
applicable. See Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983)
(“‘[I]f United States law is applicable, the American court should retain jurisdiction rather than
relegate the controversy to a foreign tribunal.’” (quoting Fisher v. Agios Nicolaos V, 628 F.2d
308, 315 (5th Cir. 1980)) (emphasis removed)); Doe v. Celebrity Cruises, Inc., 394 F.3d 891,
899 (11th Cir. 2004) (noting the Supreme Court suggests in Norfolk Southern Railway Co. v.
Kirby, 543 U.S. 14, 23 (2004), that for a court to apply admiralty law, it must first have admiralty
jurisdiction). Thus, there are two threshold matters the Court must address in its forum non
conveniens analysis: (1) whether admiralty jurisdiction exists, and if so, (2) whether United
States maritime law applies to this case.
A. Admiralty Jurisdiction
Although the Motion does not raise any issue with the Court’s admiralty jurisdiction, the
Replies in opposition to Plaintiff’s Response filed by the Señor Frog’s Defendants and the
SinglesCruise Defendants do.
(See Operadora Reply 9 (asserting there is no admiralty
jurisdiction over Belik’s claims against Operadora); Palangana Reply 2 (“Plaintiff’s assertion of
subject matter jurisdiction over Palangana is based solely upon diversity.”); SinglesCruise
Defendants Reply 6 (asserting there is no admiralty jurisdiction over Operadora and Palangana).
In any event, the Court “ha[s] an independent duty to ensure admiralty jurisdiction exists before
applying admiralty law.” Celebrity Cruises, 394 F.3d at 900 (citing Norfolk, 543 U.S. at 23;
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Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–102 (1998)).
“[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §
1333(1) over a tort claim must satisfy conditions both of location and of connection with marine
activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534
(1995).5 Given that Operadora suggests that maritime law may apply to Carnival (see Operadora
Reply 10), and that neither the Señor Frog’s Defendants nor the SinglesCruise Defendants
challenge the Court’s admiralty jurisdiction over Carnival, the Court begins its jurisdictional
analysis with respect to Carnival.
The Eleventh Circuit has held that a cruise ship’s obligations to its passengers “extend
literally beyond the gangplank,” even to common law torts against cruise ship passengers, such
as sexual assault, that occur on land. Celebrity Cruises, 394 F.3d at 902; see, e.g., id. at 900–02
(finding admiralty jurisdiction existed where a ship’s passenger was assaulted by a crew member
at a port-of-call). Further, courts have typically found that injuries suffered by cruise ship
passengers while on shore excursions are sufficient to satisfy the Grubart test and invoke
admiralty jurisdiction. See, e.g., Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196CIV-ALTONAGA/Brown, 2009 WL 8659594, at *4 (S.D. Fla. Sept. 14, 2009) (cases cited).
Not only does the present case concern a shore excursion, it is also factually analogous to
the circumstances in Celebrity Cruises. There, the court observed that the ship was scheduled to
stop in Hamilton, Bermuda, the port-of-call where the sexual assault took place. Additionally,
5
The Grubart location and connection test requires that the following conditions exist for there to be
admiralty jurisdiction: (1) “the tort occurred on navigable water or [the] injury suffered on land was
caused by a vessel on navigable water”; (2) “the incident has a potentially disruptive impact on maritime
commerce”; and (3) “the general character of the activity giving rise to the incident shows a substantial
relationship to traditional marine activity.” Grubart, 513 U.S. at 534 (internal quotation marks and
citations omitted).
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the ship remained clearly visible from the bar where crew and passengers were known to
routinely socialize, as well as from the immediate vicinity of the public park where the sexual
assault occurred. See Celebrity Cruises, 394 F.3d at 901. Here, Plaintiff was a passenger aboard
Carnival’s ship, the Valor. The ship’s stop in Cozumel was a scheduled port-of-call, and
Plaintiff alleges Carnival knew that passengers from its ship “regularly patronize SENOR
FROGS . . . and slid[e], jump[], and div[e] from the slide or seawall” at issue, which was “within
sight of the [Valor].” (Compl. ¶¶ 25–26). Plaintiff, as a participant in the “Cozumel Beach
Party!” shore excursion that was organized by one of Carnival’s agents, dove off of the seawall
and hit his head on the ocean floor.
Plaintiff plainly satisfies the location inquiry because this case concerns a cruise ship’s
obligations to its passengers with regard to shore excursions and because Plaintiff’s injury
occurred in the ocean. The two remaining inquiries with respect to the incident’s connection
with maritime commerce and activity are also met. As to the first issue, when a passenger is
injured on a shore excursion, it has the potential to impact the number of excursions purchased
by passengers, thereby affecting maritime commerce. See Balaschak, 2009 WL 8659594, at *4
(“The cruise line industry is maritime commerce. . . . Shore excursions attract passengers to
participate in cruises and are an integral part of the cruise-line industry.” (internal quotation
marks and citations omitted)). With respect to the second issue, the general character of the
activity giving rise to the incident here is, among other things, Carnival’s alleged negligence in
failing to warn its passengers of the dangers of jumping or diving off of the seawall, when it
knew its passengers routinely visited the seawall while the ship was in port through a shore
excursion routinely offered to many of its passengers. Carnival’s alleged breach is substantially
related to a traditional maritime activity. For the foregoing reasons, Plaintiff appropriately
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invokes admiralty jurisdiction in its action against Carnival.
With regard to the remaining defendants, the Court notes that if it has admiralty
jurisdiction with respect to a particular defendant, it has admiralty jurisdiction over an entire
case, even when non-maritime claims — which arise from the same operative facts, as is the case
here — are brought in the same suit.6 See Roco Carriers, Ltd. v. M/V Nurnberg Express, 899
F.2d 1292, 1296–97 (2d Cir. 1990) (“[A]dmiralty jurisdiction extends to an entire case, including
non-admiralty claims against a second defendant.” (citing Teledyne, Inc. v. Kone Corp., 892 F.2d
1404, 1409 (9th Cir. 1989); Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 822–23 (1824)));
see also Ortega v. Schramm, 922 F.2d 684, 693 n.9 (11th Cir. 1991) (recognizing that pendent
party jurisdiction is allowed in admiralty cases under the language of 28 U.S.C. section
1333(1)[7] (citing id. at 1295–97)). Thus, even if Plaintiff’s claims against the Señor Frog’s
Defendants are not maritime claims, the Court properly has admiralty jurisdiction over these
defendants. For these reasons, the Court finds that it maintains admiralty jurisdiction over this
matter.
B. Choice of Law
The Señor Frog’s Defendants challenge Plaintiff’s assertion that the entire case is
governed by maritime law, instead contending that Mexican law is applicable. Because the
SinglesCruise Defendants did not submit their own memorandum addressing the forum non
conveniens issues briefed by the parties, the Court has no meaningful analysis of whether
Notably, Operadora, too, acknowledges that “admiralty jurisdiction [can] be exercised over . . . nonadmiralty claim[s].” (Operadora Reply 8 (citations omitted)).
6
“The district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny
civil case of admiralty or maritime jurisdiction . . . .” 28 U.S.C. § 1333(1) (emphasis added).
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maritime law governs Belik’s claims against the SinglesCruise Defendants. The mere joinder in
the Operadora/Palangana Motion was insufficient to preserve any such objection on the part of
the SinglesCruise Defendants given the material differences between those Defendants and the
claims asserted against them as compared to the activities of Operadora/Palangana and Plaintiff’s
claims against those Mexican Defendants. Accordingly, in the choice of law analysis that
follows, the Court only addresses the arguments and authorities relevant to the issues briefed in
the Operadora/Palangana Motion and the parties’ memoranda and supporting documents.
The Supreme Court has set out several factors to determine when courts should apply the
maritime law of the United States, including the Jones Act and the Death on the High Seas Act.
See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308–10 (1970); Romero v. Int’l Terminal
Operating Co., 358 U.S. 354, 381–84 (1959); Lauritzen v. Larsen, 345 U.S. 571, 582–93 (1953).
Lauritzen identified seven relevant factors: (1) place of the wrongful act, (2) law of the flag, (3)
allegiance or domicile of the injured, (4) allegiance of the defendant shipowner, (5) place of
contract, (6) inaccessibility of a foreign forum, and (7) law of the forum. See 345 U.S. at 582–
93. The final Lauritzen factor, law of the forum, “is entitled to little weight because ‘fortuitous
circumstances . . . often determine the forum.’” Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1517
(11th Cir. 1985) (quoting Lauritzen, 345 U.S. at 590–91) (alteration in original). In addition,
courts must also consider whether the defendant has a base of operations in the United States.
See Rhoditis, 398 U.S. at 309. These factors are not an exhaustive list, and the test is not a
mechanical one. See Szumlicz, 698 F.2d at 1195 (citing Rhoditis, 306 U.S. at 308–09).
The Eleventh Circuit has made clear that “when confronted with making a choice
between applying federal maritime law and the law of a foreign country,” courts are to examine
the Lauritzen and Rhoditis non-exhaustive list of factors. Cooper v. Meridian Yachts, Ltd., 575
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F.3d 1151, 1174 (11th Cir. 2009). Regrettably, however, the parties utterly fail to engage in the
kind of rigorous analysis set forth in Cooper despite acknowledging other principles held in that
case. (See, e.g., Resp. 9 (citing Cooper, 575 F.3d 1151, 1176)); Operadora Reply 10 (citing
Cooper, 575 F.3d 1151, 1173 n.13); Palangana Reply 7 (citing Cooper, 575 F.3d 1151, 1173
n.13)). For example, the court noted that a “complete choice of law analysis requires that [a
court] examine the base of operations of all parties,” and that only factors relevant to the claim
be considered. Cooper, 575 F.3d at 1176; see id. at 1175. Here, Palangana does not analyze any
of the factors, and instead conclusorily states that “[t]here are absolutely no facts compelling the
application of maritime law under a Lauritzen / Rhoditis analysis.”
(Palangana Reply 4).
Similarly, Operadora does not consider any of the Lauritzen and Rhoditis factors, but concludes
in a blanketed fashion: “[E]ven if this Honorable Court were to apply the “Rhoditis/Lauritzen”[]
factors herein, the result would be the same given the present record—that Mexican law applies
to BELIK’s premises liability claims against OPERADORA.”
(Operadora Reply 3 n.2).
Certainly, it is not incumbent upon the Court to undertake the requisite analysis when it is the
movants’ burden to demonstrate why the Southern District of Florida is an inappropriate forum.
Lastly, although they apply the Lauritzen and Rhoditis factors to Plaintiff’s claims against
Operadora and Palangana, the SinglesCruise Defendants march through the eight factors with
little to no analysis.8
(See SinglesCruise Defs.’ Reply 8–9).
Notably, Plaintiff’s
Lauritzen/Rhoditis analysis is also quite cursory. (See Resp. 8–9).
Moreover, the SinglesCruise Defendants fail to explain why they are entitled to join in the Señor Frog’s
Defendants’ Motion to Dismiss on forum non conveniens grounds when “Mr. Belik’s ticket contract with
Carnival requires suit to be filed in [the Southern District of Florida], and that ticket contract is
incorporated into the contract between Carnival and SinglesCruise.” (Resp. 34).
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Because of these deficiencies, Defendants fail to satisfy their “heavy burden in opposing
the plaintiff’s chosen forum.” Sinochem, 549 U.S. at 430. A choice of law analysis employing
the Lauritzen and Rhoditis factors, as instructed in Cooper, is critical to the Court’s
determination whether it may dismiss this case for forum non conveniens.
IV. CONCLUSION
Being fully advised, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 103] is DENIED. Should
Defendants choose to re-file a motion to dismiss based on forum non conveniens, they must at a
minimum address the issues noted in this Order.
DONE AND ORDERED in Miami, Florida, this 1st day of October, 2012.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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