Maritime Law: 11th Circuit Keeps Costa Concordia Lawsuits In Miami-Dade Circuit Court

July 02, 2013

After Carnival's cruise ship Costa Concordia ran aground off the coast of Italy, two separate actions were filed by groups of 56 and 48 plaintiffs in the Circuit Court of the Eleventh Judicial Circuit of Florida (our Miami state court). Carnival removed both actions to the federal district court, claiming that the district court had subject-matter jurisdiction under the mass-action provision of the Class Action Fairness Act of 2005 (CAFA), Pub. L. 109-2, 119 Stat. 4. The Plaintiffs moved for remand to the state court on the ground that the district court lacked jurisdiction and the district court granted the motion. The U.S. Court of Appeals for the Eleventh Circuit in Scimone v. Carnival Corp., Docket No. 13-12291 (Jul. 1, 2013) affirmed the federal district court, concluding that the cases were improvidently removed and should have been remanded where, under the plain language of CAFA and 28 U.S.C. 1332(d)(11), the district court lacked subject-matter jurisdiction over plaintiffs' two separate actions unless they proposed to try 100 or more persons' claims jointly.

As noted by Judge Marcus, the plaintiffs "never filed a single complaint naming 100 or more plaintiffs and never moved for consolidation or a joint trial on part or all of their two separate actions." Without meeting those conditions, Judge Marcus found the district court had no federal subject matter jurisdiction.

If you are interested in receiving a copy of this decision or wish to reach me, you may contact me by writing to me via email at mov@chaloslaw.com.

Maritime Law: Fla Supreme Court Weighs in On FNC Test

June 24, 2013

In Cortez v. Palace Resorts, Inc., Case No. SC11-1908 (Jun. 20, 2013), the Florida Supreme Court has provided excellent guidance on how a Florida court should handle a forum non conveniens defense. The issue, as succinctly phrased by the Court, is whether the forum non conveniens doctrine can 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. The Court answered this question in the negative. The Court explained that there is a strong presumption in favor of a plaintiff's choice of forum and this presumption does not apply to only Florida residents.  While this decision does not appear at first blush to assist foreign plaintiffs in asserting Florida as the appropriate forum for their disputes, the case does give excellent guidance on the test to be employed in the Florida courts for evaluating the forum non conveniens defense.

Facts of Case

The  Petitioner, a California resident, was sexually assaulted while vacationing in Mexico. The assault occurred while the 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 Florida Supreme Court quashed the court of appeal's decision, holding that the court misapplied the forum non conveniens analysis.

Reasoning

The Florida Supreme Court cited two reasons for quashing the Third District Court of Appeal (the "3d DCA") decision: 1) the 3d DCA misapplied the Kinney test by finding that the plaintiff, by virtue of her out-of-state residence, was not entitled to the strong presumption in the forum non conveniens analysis against disturbing the plaintiff's initial choice of an otherwise proper forum; and 3) the 3d DCA erred by failing to focus on the fact that although the lawsuit involved an assault that occurred in Mexico, the allegations of negligence derive from conduct in Florida by defendants with their primary place of business in Florida.

Conclusion

This will be a case that will be cited by defendants in foreign plaintiff cases to suggest that there is no strong presumption available to the foreign plaintiff in the forum non conveniens analysis against disturbing the plaintiff's initial choice of an otherwise proper forum. In other words, foreign plaintiffs should not be allowed to rely on this decision as it specifically references U.S. citizens or residents. Whether this argument will be accepted by the courts as a result of this decision is anyone's guess.

The language from the case that will be cited by U.S. plaintiffs is the Court's language which states "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 this presumption is especially high." This decision will be a helpful one for U.S. citizens attempting to bring cases against defendants which operate and cause damages outside of the U.S. but have offices within the U.S.

If you are interested at receiving a copy of this decision or reach to reach me, you may do so by writing to me at mov@chaloslaw.com. 

Maritime Law: Saving American Seafarer Jobs

June 21, 2013

Last year, Congressman Elijah E. Cummings (D-MD) introduced the Saving Essential American Sailors (SEAS) Act in an effort to repeal section 100125 of the Moving Ahead for Progress in the 21st Century (MAP-21) Act, which reduces the amount of U.S. food aid required to be carried on U.S.-flagged ships from 75 percent to 50 percent. Despite a bipartisan effort, the bill died in committee.

Without the implementation of SEAS and the repeal of the section of MAP-21, it is reported that as many as 2,000 American maritime jobs could be lost and as much as $90 million in lost revenues for U.S.-flag operators. These are figures from the U.S. Maritime Administration. If the offending section of MAP-21 is not repealed, we will have a situation where foreign-owned vessels would have to be depended on by the U.S. to delivery its cargo to our troops overseas. Without the U.S.-flagged sealift capacity, U.S. imports and exports would move solely on foreign shipping lines, many of which are stated-owned lines. The U.S. military would be left dependent on foreign-flagged, foreign-owned ships manned by non-U.S. citizens to carry U.S. military cargoes. 

The plight of the loss of the American seafarer has been detailed in numerous publications (Maritime Executive, Marine Log and others), op-eds and other trade papers, but the word does not seem to be  getting out to the general public. I am always met with surprise when I explain this law to ordinary Americans and they ask me "why haven't I heard anything about this?" Without going on a tangent on the "why", it is imperative that we in the maritime industry educate ordinary Americans of what this law means--saving American seafaring jobs.

Maritime Law: Florida's Governor Signs Expert Witness Testimony Bill

June 05, 2013

Today, Governor Rick Scott of Florida reportedly signed a bill changing the state standard for accepting testimony from expert witnesses. This law is huge as it switches the state's Frye standard to the federal Daubert rule. Florida was only one of 10 states still using the Frye test, a standard established in 1923 that allowed expert testimony as long as it came from qualified experts who adhered to generally accepted scientific principles in their field.

The Daubert standard, named for the 1993 U.S. Supreme Court decision Daubert v. Merrell Down Pharmaceuticals, focuses more on the scientific methodology and its relevance to the facts of the case. Experts under Daubert must have the training to give an opinion on a theory or technique that has been scientifically tested and published in peer-reviewed journals.

The bill, labeled HB 7015, was supported by the business community primarily to do away with what it derided as "junk science" testimony in personal injury and malpractice litigation. However, it was opposed by civil plaintiffs attorneys and criminal prosecutors who maintained the change would bog down cases with needless hearings. The bill requires the more stringent federal standard for expert testimony even though critics claim it will drastically increase the cost of litigation and put new burdens on an already strained state judicial system.

Legal analysts with trial court experience in Daubert hearings say that judges have a tendency to use Daubert to pre-try a case and grant summary judgment in a manner that discourages appeals. This is due in part to a tendency of courts to selectively cite materials submitted in a misleading manner. Commentators representing civil plaintiffs expect that with this change, defendants are going to regularly file motions challenging the validity of expert opinions. I have to agree with this assessment, given my own use of Daubert in federal court. 

Today, the Daily Business Review reported a 2011 PricewaterhouseCoopers' study on the effects of the Daubert standard. It found a 250 percent increase in Daubertchallenges to all types of experts from 2000 to 2010. In 2010, there was a 49 percent success rate in witness testimony being stricken in whole or in part. This could be hugely detrimental since in many cases, expert witnesses do not live in the jurisdiction where the case will be tried. This entails the expert witness travelling, giving testimony and answering the judge's questions in a Daubert hearing. This will certainly increase litigation costs for plaintiffs.

Florida's acceptance of Daubert increases the standard being the law to 41 states.

If you are interested in learning more about Daubert or would like to reach me, you may contact me at mov@chaloslaw.com.