Klyszcz et al v. Cloward H20 LLC
Filing
66
ORDER denying 30 Motion to Dismiss; denying 35 Motion to Dismiss. Signed by Judge Marcia G. Cooke on 9/26/2012. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No.: 11-23023-Civ-COOKE/TURNOFF
ADAM KLYSZCZ and LUCYNA KLYSZCZ,
Plaintiffs,
v.
CLOWARD H2O LLC f/k/a CLOWARD &
ASSOCIATES, PC; EDSA, INC.; HKS, INC.
d/b/a HKS ARCHITECTS, INC.; and
WHITEWATER WEST INDUSTRIES, LTD.,
Defendants.
____
/
OMNIBUS ORDER DENYING DEFENDANTS’ MOTION TO
DISMISS UNDER THE DOCTRINE OF FORUM NON CONVENIENS
THIS MATTER is before me on Defendants, Whitewater West Industries, LTD.’s
(“Whitewater”) and Cloward H20, LLC’s (“Cloward”) Motions to Dismiss Under the Doctrine of
Forum Non Conveniens (“Motions to Dismiss”) (ECF Nos. 30, 35). Plaintiffs have filed their
Response in Opposition to Whitewater’s Motion to Dismiss (ECF No. 39) and their Response in
Opposition to Cloward’s Motion to Dismiss (ECF No, 46). Both Defendants submitted their
Replies to Plaintiffs’ Response to their Motions to Dismiss (ECF Nos. 47, 50). Thus, the Motions
to Dismiss have been fully briefed and are ripe for adjudication. I have reviewed the Motions to
Dismiss, the parties’ arguments, the record, the relevant legal authorities, and am otherwise duly
advised in the premises. For the reasons provided herein, Defendants’ Motions to Dismiss are
denied.
I. BACKGROUND
This case arises from injuries suffered by Plaintiff, Adam Klyszcz (“Mr. Klyszcz”),
resulting from an allegedly defective waterslide located at the Atlantis Resort in Nassau,
Bahamas. On or about November 6, 2009, Plaintiffs, Mr. Klyszcz and his wife, Lucyna Klyszcz
(“Mrs. Klyszcz”), used the pool facilities at the Atlantis Resort. (First Am. Compl. ¶ 17, ECF No.
20).
The Challenger waterslide (“Challenger”) is included amongst the pool amenities and
features two adjacent water slides that allow resort guests to “race” to the bottom. (Id. ¶ 18). At
approximately 2:00 p.m., Mr. Klyszcz used the Challenger after receiving instructions on how to
navigate the slide from an Atlantis resort employee. (Id. ¶ 19). As Mr. Klyszcz “splashed down”
the Challenger, his legs hit the bottom of the pool causing intense pain to radiate from his knee
and his knee to swell. (Id.) Mr. Klyszcz required assistance to get out of the pool, and, within a
short period of time, was taken to a nearby hospital, where a New Jersey physician, who reviewed
the x-rays via the Internet, diagnosed him. (Id. ¶ 20). The New Jersey physician diagnosed Mr.
Klyszcz with “a very comminuted anteromedial tibial plateau fracture with significant
displacement and step-off to the articular surface in addition to a significant tear in his medial
meniscus.” (Id.)
Alleging damages of serious and permanent personal injuries, physical pain, mental
anguish, loss of enjoyment of life, disability, disfigurement, physical handicap, and loss of
earning capacity, Plaintiffs, who are New Jersey citizens, assert negligent design claims against
three of the four defendants, including Cloward, EDSA, Inc. (“EDSA”)1, and HKS, Inc. d/b/a
1
Defendant EDSA, Inc. has been dismissed with prejudice from this action and was not a party to the
Motions to Dismiss. Therefore, its citizenship is not relevant to the consideration of the Motions to
Dismiss.
2
HKS Architects, Inc. (“HKS”)2.
(First Am. Compl., ¶¶ 1, 21-51).
As against the fourth
defendant, Whitewater, Plaintiff brings strict liability and failure to warn claims for allegedly
designing and manufacturing a defective product, and for failing to warn users of the danger of
injury to the knees and legs that can be caused by the use of the Challenger. (Id. ¶¶ 52-59, 60-68).
Plaintiff, Mrs. Klyszcz, also avers a loss of consortium cause of action against all defendants for
the “diminishment of her husband’s companionship, society, and consortium,” and for recovery of
past and future medical expenses for Mr. Klyszcz’s care and treatment. (Id. ¶¶ 70-71).
Defendants Cloward and HKS designed the pool facilities at the Atlantis Resort. (First
Am. Compl., ¶¶ 11, 13). According to Plaintiffs’ First Amended Complaint, EDSA served as the
design team leader for all site work of the aquatic and pool facilities at the Atlantis Resort, and
Whitewater manufactured, constructed, and/or maintained the Challenger at the Atlantis Resort.
(Id. ¶¶ 12, 14). However, discovery revealed that EDSA’s sole role with regard to the Challenger
was to design the decorative pattern of the curb around the splash down pool. Behling Aff. ¶¶ 511, ECF No. 56-4. According to Plaintiffs, all Defendants, while in south Florida, participated in
the design, manufacture, construction, sale, marketing, and other business with respect to the
Challenger. (Id. ¶ 15).
As to the remaining defendants in this action, Defendant Cloward is a limited liability
company incorporated under the laws of Alaska with its principal place of business in Utah, and is
also registered to do business in Florida. (Id. ¶¶ 5-6). HKS is a Texas corporation that is
registered to do business in Florida and maintains an office in Miami, Florida.
(Id. ¶ 8).
Whitewater is a foreign corporation, incorporated under the laws of Canada, having its principle
2
Defendant HKS, Inc. d/b/a HKS Architects, Inc. did not join the Motions to Dismiss and is not seeking to
alter the forum of this litigation.
3
place of business in Richmond, British Colombia, Canada, and is also registered to do business in
Florida. (Id. ¶ 10; Whitewater’s Mot. Dismiss ¶ 6).
II. LEGAL STANDARD
Although the initial venue selected by the plaintiff may be proper, the doctrine of forum
non conveniens permits a district court to exercise its discretion and dismiss an action if a foreign
court is the more appropriate and convenient forum to adjudicate the matter. Sinochem Int’l Co.
Ltd. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 429 (2007). In order to obtain dismissal based
on the doctrine of forum non conveniens, the moving party must demonstrate that (1) an adequate
alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and
(3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or
prejudice. See Piper Aircraft Co. v. Reno, 454 U.S. 235, 255-62; Leon v. Millon Air, Inc., 251
F.3d 1305, 1311 (11th Cir. 2001). “A defendant invoking forum non conveniens [] bears a heavy
burden in opposing the plaintiff's chosen forum.” Sinochem Int'l Co. Ltd., 549 U.S. at 430.
In a court’s evaluation of private and public factors, “the private factors are ‘generally
considered more important’ than the public factors….” Leon, 251 F.3d at 1311. Nevertheless,
the better practice is to consider all factors in every case. Id. (relying upon Satz v. McDonnell
Douglas Corp., 244 F.3d 1279, 1283-84 (11th Cir.2001); 17 Moore's Federal Practice §
111.74[3][b] at 111-221 (3d ed.2000)); but see McLane v. Los Suenos Marriott Ocean & Golf
Resort, No. 11-11860, 2012 WL 1414602, at *1 n.3 (11th Cir. Apr. 24, 2012). A significant
private factor, and one that the court must give due deference to, is a plaintiff’s choice of forum.
However, “[w]hen the plaintiff's choice is not its home forum, … the presumption in the
plaintiff's favor applies with less force, for the assumption that the chosen forum is appropriate is
in such cases less reasonable.” Id. (internal quotation marks and citations omitted); see also Leon,
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251 F.3d at 1311 (concluding that in the balance of private interests, “domestic plaintiffs [are
afforded] a strong presumption that their forum choice is sufficiently convenient, and a weaker
presumption applying in cases brought by foreign plaintiffs”) (internal quotation marks omitted)).
Notwithstanding the strong presumption, “dismissal should not be automatically barred when a
plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that
trial in the chosen forum would be unnecessarily burdensome for the defendant or the court,
dismissal is proper.” McLane, 2012 WL 1414602, at *1.
A district court’s determination to dismiss an action on the doctrine of forum non
conveniens will not be disturbed except where the court clearly abuses its discretion by failing to
balance reasonably all of the relevant pubic and private factors. See McLane v. Los Suenos
Marriott Ocean & Golf Resort, No. 11-11860, 2012 WL 1414602, at *1 (11th Cir. Apr. 24, 2012).
III. ANALYSIS
A.
Order in Matthews v. Whitewater West Indus., et al., No. 11-24424-CIVALTONAGA/Simonton
I note at the outset that the issue of law here presented – specifically, whether the
plaintiffs’ case should be dismissed based on forum non conveniens grounds – is the identical
legal issue decided by The Honorable Cecilia M. Altonaga in Matthews v. Whitewater West
Indus., et al., No. 11-24424-CIV-ALTONAGA/Simonton, ECF No. 76 (“Judge Altonaga Order”).
Further, the factual circumstance underlying Matthews resembles, in the six most critical and
relevant facets, the factual situation giving rise to the instant matter.
First, both cases involve the same four defendants: Whitewater, Cloward, HKS, and
EDSA. Second, the same two defendants only, Whitewater and Cloward, seek dismissal of the
complaints based on forum non conveniens in both matters. Third, both incidents of personal
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injury occurred on the Challenger waterslide at the Atlantis Resort in Nassau, Bahamas. Fourth,
both plaintiffs claim the same injury (tibia plateau fracture) from the same alleged cause (legs
hitting the bottom of the splash down pool). Fifth, both plaintiffs are United States citizens.3
Sixth, both complaints allege the same substantive causes of action as against the same
defendants.4 Compare First Am. Compl., No.11-23023-Civ-COOKE/TURNOFF, ECF No. 20,
with Compl., No. 11-24424-CIV-ALTONAGA/Simonton, ECF No. 1. Notably, Judge Altonaga
permitted the parties to conduct discovery on the forum non conveniens issue in the matter before
her, which was later submitted as evidence in this case. See, e.g., Kwasnicki Dep., Feb. 24, 2012;
Cloward Dep., Mar. 16, 2012, ECF No. 51-1; Behling Aff., ECF No. 56-4.
I find Judge Altonaga’s Order compelling and persuasive, and her analysis sound.
Additionally, I weigh heavily the strong public policy that disfavors having contrary or disparate
outcomes in similarly situated cases.
See Shallal v. Elson, No. 98-8739-CIV, 1999 WL
33957906, at *4 (S.D. Fla. Apr. 12, 1999) (noting “the danger of inconsistent decisions on the
same matters is high where both courts would be resolving similar factual and legal issues”).
Therefore, I adopt Judge Altonaga’s conclusions of law and findings of fact in the Judge Altonaga
Order as they relate to this matter. Hence, my additional analysis will be brief.
3
David Matthews, the plaintiff in the Matthews case is an Ohio citizen, while Mr. and Mrs. Klyszcz, the
plaintiffs in the case at bar, are New Jersey citizens.
4
The following counts are identical in both plaintiffs’ complaints: Count I – Negligence as to Cloward,
Count II – Negligence as to EDSA, Count III – Negligence as to HKS, Count IV – Strict Liability as to
Whitewater, Count V – Strict Liability as to Whitewater (Failure to Warn). The sole difference in the
counts of the complaints is that Plaintiffs assert a loss of consortium claim in the present case that is absent
in the Matthews Complaint.
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B.
Forum Non Conveniens Discussion
1.
Adequate Alternative Forum
First, I must determine whether the Bahamas is an adequate and available forum. “The
alternative forum prong of the analysis generally will be satisfied when the defendant is amenable
to process in the other jurisdiction.” Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1282 (11th
Cir. 2001) (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1991)(internal quotations omitted)).
Here, the moving Defendants are amenable to jurisdiction in the Bahamas and agree to waive any
requirement that the Plaintiffs post a bond or security with a Bahamian court in order to reinstate
the action. Although Plaintiffs note that the non-moving Defendant has not made such an offer to
waive a bond or security requirement, Plaintiffs do not contest that a Bahamian court may
exercise jurisdiction over the Defendants. Additionally, Robert K. Adams, a licensed attorney in
the Commonwealth of the Bahamas, affirmed that Plaintiffs may bring their claims in courts of
the Bahamas and obtain full redress in the Bahamas if liability is found in their favor. Adams
Aff., ECF No. 30-2.
Moreover, this Court has consistently held that the Bahamas may provide an adequate and
available alternative forum if the forum non conveniens factors weigh in favor of the moving
party. See e.g. Pinder v. Moscetti, 666 F. Supp. 2d 1313 (S.D. Fla. 2008); see Haddad v. RAV
Bahamas, Ltd., 2008 WL 1017743, at *4 (S.D. Fla. July 17, 2009); see Horberg v. Kerzner Int’l
Hotels Ltd., 744 F. Supp. 2d 1284 (S.D. Fla. 2007).
2.
Private Interest Factors
After determining that an adequate alternative forum exists, the court must then consider
whether the private interest factors favor the alternative forum. La Seguridad v. Transytur, 707 F.
7
2d 1304, 1307 (11th Cir. 1983); see also Zelaya v. De Zelaya, 250 F. App’x 943, 946 (11th Cir.
2007). In considering the private interests of the litigants, the court should look to (1) the relative
ease of access to sources of proof, (2) the ability to obtain witnesses via compulsory processes,
(3) the possibility to view the premises, and (4) all other practical problems that make the trial of
a case easy, expeditious, and inexpensive. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1946);
see also Zelya, 250 F. App’x at 946. Furthermore, the residency of material and/or key witnesses
and the location of documentation evidence should also be considered. Foster v. Sun Int’l Hotels,
Ltd., No. 01–01290–CIV, 2002 WL 34576251, *3 (S.D. Fla. Feb. 5, 2002).
Here, several of the fact witnesses to Mr. Klyszcz interaction with the Challenger reside in
Nassau, Bahamas. Also in the Bahamas are the witnesses regarding the maintenance and care of
the Challenger. These witnesses, according to Defendants are the “majority of the material
witnesses,” as they are critical to their defense of improper care and maintenance by Atlantis, or
comparative negligence by Mr. Klyszcz. However, many of the witnesses regarding the design,
manufacturing, production, training, and other technical aspects of the Challenger, which are
central to the causes of action brought by Plaintiffs, reside in the United States and Canada. Thus,
each side presents considerable information demonstrating that the material evidence is split
between the Bahamas and the United States. On this, Judge Altonaga and I agree.
I also concur with Judge Altonaga regarding the cost-related and compulsory process
factors of access to material evidence. The cost-related factor favors the Defendants’ choice of
the Bahamian forum because Plaintiffs would have to transport the majority of their witnesses,
including themselves, to either forum. Defendants, on the other hand, would incur substantial
costs having to transport the Bahamian witnesses to Florida. See Judge Altonaga Order at 13.
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The compulsory process factor is weighed in favor of Plaintiff because Defendants fail to carry
their burden of demonstrating that compulsory process by a U.S. Court over unwilling witnesses
and documentary evidence in the Bahamas is more difficult than compulsory process by a
Bahamian court over the same evidence in the United States. See id. at 14-16.
The premises, or the Challenger in this case, is located in the Bahamas. Therefore, the
view and the inspection of the premises may only be accomplished in the Bahamas. However,
given the claims in this case, there will certainly be experts on both sides who are able to inspect
and memorialize their inspection for the benefit of the jury. See id. at 17 (relying upon R. Travis
Collins v. Marriott Int’l, Inc., No. 09-22423-CIV-JORDAN, a3 (S.D. Fla. May 11, 2010) (ECF
No. 57); Campbell v. Starwood Hotels & Resort Worldwide, Inc., No. 07-61744-CIV, 2008 WL
2844020, at *6 (S.D. Fla. July 23, 2008)).
The arguments in support of and against transferring the venue to the Bahamas are slightly
in Plaintiffs’ favor because of Defendants’ weakness in carrying its heavy burden. This slight
advantage to Plaintiffs becomes overwhelming when considering that Plaintiffs, who are United
States citizens, selected this forum. The Eleventh Circuit has instructed the trial courts:
In its evaluation of these private factors, the district court should weigh [] in the
balance a strong presumption against disturbing plaintiffs’ initial forum choice.
This 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.
McLane v. Los Suenos Marriott Ocean & Golf Resort, No. 11-11860, 2012 WL 1414602, at *1
(11th Cir. Apr. 24, 2012). Despite some factors weighing in favor of Defendants, it would not be
just to command U.S. citizens to litigate in a foreign forum given that the weight of the factors do
not dictate such a result.
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3.
Public Interest Factors
Next, I must consider whether the public interest factors weigh in favor of the alternative
forum. La Seguridad, 707 F. 2d at 1307. This consideration should be undertaken despite having
found that the private factors weigh in favor of Plaintiffs. See Leon, 251 F.3d at 1311. The public
factors that courts contemplate are administrative difficulties, local interest, application of foreign
law, and unfairness of imposing jury duty on an unrelated forum. Gulf Oil Corp., 330 U.S. at
508.
Here, Defendants posit that there is no administrative difficulty in adjudicating the matter
in the Bahamas. Plaintiffs argue that Defendants miss the mark because the court congestion
factor should apply only to this court, and not the foreign court. For this proposition, Plaintiffs
rely upon Campbell, 2008 WL 2844020, at *8 (stating that the fact that the Southern District of
Florida has one of the busiest dockets in the United States should be given little or no weight in
analysis)). Although Plaintiffs are correct that the “proper emphasis” of this factor is on the home
forum, see Judge Altonaga Order at 21, Plaintiffs do not contest that court congestion is not an
issue in the Bahamas. Also, it is well-settled that this Court has an vigorous docket. Thus, this
factor favors the Defendants. However, the weight given to this factor is slight. See Campbell,
2008 WL 2844020, at *8.
The factors relating to the imposition of jury duty on a jury unrelated to the litigation and
the applicability of foreign law also militate toward the Defendants’ position.
Defendants
properly note that this case lacks a meaningful connection to Miami Dade County, Florida. The
incident at issue occurred in the Bahamas and almost all of the witnesses and relevant
documentation are located in an area outside of Miami Dade County, Florida. Thus, it would be a
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burden to impose jury duty on this community without more connection to the litigation. See
SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.
2004). But, as Defendants concede, this is a “lesser weighted factor.” See Def. Whitewater’s
Mot. Dismiss at 11; Def. Cloward’s Mot. Dismiss at 11.
Also, Bahamian law would likely apply under the significant relationships test, which
requires a court to analyze where the injury occurred, the conduct causing the injury occurred, and
the relationship of the parties is centered. See Bishop v. Specialty Paint Co., 389 So. 2d 999, 1001
(Fla. 1980). However, this Court has held that the application of Bahamian law would pose little
problem given the similarities between Bahamian and United States law, as both are derived from
English common law, and there are no language barriers to the Court’s understanding of
Bahamian law. Campbell, 2008 WL 2844020, at *8. Further, the similarities of negligence law in
the United States to that in the Bahamas is striking as outlined by Defendants’ affiant, Robert K.
Adams. See Adams Aff. ¶¶ 4, 7, 9-12, 14-16. Accordingly, though this factor tilts in Defendants’
favor, it is also of little consequence.
IV. CONCLUSION
After balancing all elements and factors required for a dismissal under forum non
conveniens, I conclude that while Defendants have demonstrated that the Bahamas is an available
and adequate alternative forum, and the public interest factors weigh in their favor, these
considerations do not support a dismissal of Plaintiffs’ First Amended Complaint because of the
private interest factors in Plaintiffs’ favor. Plaintiffs are U.S. citizens; thus, Defendants had a
“heavy burden in opposing the plaintiff's chosen forum” requiring them to show that a “material
injustice” would result if the litigation remains here. Sinochem Int'l Co. Ltd., 549 U.S. at 430;
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SME Racks, Inc., 382 F.3d at 1101. Defendants were unable to carry their burden.
For the reasons explained in this Order, and further detailed in Judge Altonaga’s Order in
Matthews v. Whitewater West Indus., et al., No. 11-24424-CIV-ALTONAGA/Simonton, ECF No.
76, Defendants, Whitewater West Industries, LTD.’s and Cloward H20, LLC’s, Motions to
Dismiss Under the Doctrine of Forum Non Conveniens (ECF Nos. 30 and 35) are DENIED.
DONE and ORDERED in chambers, at Miami, Florida, this 26th day of September 2012.
Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record
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