PETITIONER, RESPONDENTS. LAW OFFICE OF ROBERT S. GLAZIER 540 BRICKELL KEY DRIVE SUITE C-1

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC FERNANDO SIMPSON, PETITIONER, V. COSTA CROCIERE, S.P.A., C.S.C.S. INTERNATIONAL, N.V., AND PRESTIGE CRUISES, RESPONDENTS. RESPONDENTS BRIEF ON JURISDICTION ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL RICHARD J. MCALPIN, ESQ. MCALPIN & BRAIS, P.A. BRICKELL BAY VIEW CENTRE SUITE S.W. 8TH STREET MIAMI, FL LAW OFFICE OF ROBERT S. GLAZIER 540 BRICKELL KEY DRIVE SUITE C-1 MIAMI, FL

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 I. THERE IS NO EXPRESS AND DIRECT CONFLICT, AND THE COURT THEREFORE LACKS JURISDICTION OVER THIS CASE...3 A. No express and direct conflict with Kinney and its progeny...3 B. No express and direct conflict on uniformity of maritime law...6 C. No express and direct conflict on fraud on the court...9 II. EVEN IF THE COURT HAD THE DISCRETION TO EXERCISE JURISDICTION, THERE IS NO REASON TO EXERCISE IT IN THIS CASE...9 CONCLUSION CERTIFICATE OF SERVICE AND COMPLIANCE... ii

3 TABLE OF AUTHORITIES American Dredging Co. v. Miller, 510 U.S. 443 (1993) 8 Bautista and Rodriguez v. CSCS International et al, case no (11th Cir. Sept. 16, 2004) 6-7 Estrada v. Cruise Ships Catering & Serv. Int'l, N.V., No (Nov. 30, 2004) 7 Hernandez v. CSCS Int l, N.V., No CIV (S.D. Fla. Dec. 8, 2003) 7 In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) 7 Kinney Systems v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996) 3-4, 8 Melbourne v. CSCS Int l, N.V., No CIV (S.D. Fla. Oct. 5, 2004) 7 Membreno v. Costa Crociere, S.p.A., 347 F. Supp. 2d 1289 (S.D. Fla. 2004) 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986) Rey v. Cruise Ships Catering & Servs. Int'l, N.V., No (Nov. 24, 2004) 7 Szumlicz v. Norwegian America Line, 698 F.2d 1192 (11th Cir. 1983) 7 Tananta v. Cruise Ships Catering and Services, 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) passim Valdivia v. Prestige Cruises, 898 So.2d 271 (Fla. 4th DCA 2005) 6 iii

4 Velasquez v. CSCS International, N.V., no CV-MGC (S.D. Fla. Dec. 30, 2004) 7 Williams v. Cruise Ships Catering & Serv. Int l, N.V., 320 F.Supp.2d 1347 (S.D. Fla. 2004) 7 iv

5 STATEMENT OF THE CASE AND FACTS The foreign Plaintiff. Fernando Simpson is a citizen and resident of Costa Rica, who worked on the ship Costa Allegra. He was a galley worker who fell while trying to clean a large oven. His only eyewitness was a Honduran shipmate. He was injured in November 1998 while the ship was in transit from the Netherlands to Brazil. Following the accident, he left the ship and received medical treatment in Brazil. He then returned home to Costa Rica for further medical care. Tananta v. Cruise Ships Catering and Services Int l, 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) (A4-5). The foreign vessels. Plaintiff Simpson and the other foreign seamen in the cases consolidated by the district court of appeal were working on Costa vessels. As the district court noted, [w]hile some Costa vessels do on occasion enter the United States, the bulk (85%) of Costa s business comes from overseas. (A5). The Costa Allegra, on which Simpson worked, never called on U.S. ports. (A5). The foreign Defendants. The Defendants are separate corporations which serve various functions in regard to Costa vessels. According to the district court, the corporate entities behind these vessels have equally sparse connections to the United States, and especially to Florida. The Costa Marina, Costa Allegra, and Costa Classica are owned by an Italian corporation, Costa Crociere S.p.A., which has no offices or employees in Florida, and conducts its day-to-day business from its 450-employee office in Genoa, 1

6 Italy. (A5). The district court orders dismissal based on forum non conveniens. After the accident somewhere between the Netherlands and Brazil, Plaintiff Simpson filed a lawsuit in Miami. The Third District Court of Appeal, sitting en banc, ordered his lawsuit and others brought by foreign seamen dismissed based on forum non conveniens. The district court concluded that we fail to see what interest the State of Florida may have... in a Columbian, Costa Rican or Honduran national, injured on the high seas aboard non-u.s. vessels, treated by foreign doctors, with only foreign witnesses of their incident to proffer. (A10). SUMMARY OF THE ARGUMENT The district court did not create conflict in finding that the Defendants established that there are alternative adequate fora. The district court opinion did not create conflict by interfering with the uniformity of maritime law, since the court reached the same conclusion as almost every other court to address the issue. Finally, the Plaintiff s disagreement with the district court s consideration of the fraud allegations does not constitute conflict. ARGUMENT I. THERE IS NO EXPRESS AND DIRECT CONFLICT, AND THE COURT THEREFORE LACKS JURISDICTION OVER THIS CASE 2

7 While Simpson is displeased by the decision of the district court, there is no conflict. Indeed, what is striking is not conflict, but that so many courts have reached the same conclusion as the district court here did that these foreign disputes should not occupy our courts. The petition for review should be denied. A. No express and direct conflict with Kinney and its progeny Plaintiff Simpson makes a general argument that the opinion of the district court conflicts with this Court s decision in Kinney Systems v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), as well as its progeny. But there is only one allegation of a specific way in which there is claimed conflict with Kinney the suggestion that the district court ordered dismissal based on forum non conveniens even though (according to the Plaintiff) the Defendants did not properly establish that there was an adequate alternative forum. (Brief of Petitioners, at 4). In fact, the Defendants carried their burden, and there is no express and direct conflict. This Court has explained that a defendant s burden in establishing an adequate alternative forum is not high. Ordinarily, this requirement will be satisfied when the defendant is amenable to process in the other jurisdiction. Kinney, 674 So. 2d at 89 (citation omitted). The district court s opinion shows that the court held the Defendants to their burden, and the Defendants satisfied their burden by demonstrating that for each Plaintiff there are at least two alternative fora the Plaintiff s home country in Latin 3

8 America, and the Netherlands Antilles. The court explained: [T]he affidavits submitted demonstrate that the defendants are amenable to service of process in the Netherlands Antilles or in one of these five South American countries, thus meeting the chief concern of the first prong of the Kinney test the ability to perfect service of process..... Because the defendants have stipulated to jurisdiction before a tribunal of competent jurisdiction in these other countries or the Netherlands Antilles for resolution of the claim, we find that CSCS has met its burden under the first prong of Kinney. (A20, 8). See also A8 (Defendants waived time limitation and jurisdictional defenses in five countries). The district court thus followed Kinney, and found that the Defendants satisfied their burden. There is no conflict. Indeed, the three dissenting judges agreed with the eight judges in the majority that the Defendants had carried their burden. Simpson may not like this conclusion by all eleven district court judges, but that conclusion does not conflict with any other case. Simpson states that the district court concluded that the cases could be dismissed for re-filing in fora never even suggested by the Costa entities. (Brief of Petitioner, at 6). We assume that he is referring to the statement in the dissenting opinion that Italy was proposed as an adequate alternative forum in one of the five cases before the district court, but not in the other four. (A14). This argument is improper, since a statement in a dissenting opinion cannot establish conflict jurisdiction. Reaves v. State, 485 So. 2d 829 (Fla. 1986). 4

9 But even if the information were within the majority opinion, there would still be no conflict. The district court ordered that the cases be dismissed based on forum non conveniens. A predicate for that dismissal was an adequate alternative forum in which each Plaintiff could file his lawsuit. There is no doubt that the Defendants established that there are at least two adequate alternative fora for each plaintiff: the home country in Latin America, and the Netherlands Antilles. The Defendants thus carried their burden. The fact that the district court gave the Plaintiffs an additional choice Italy is not a basis for conflict. If Simpson does not want to sue in Italy, he doesn t have to. Furthermore, the trial court s conclusion that Italy is an adequate alternative forum was supported by an affidavit before the district court. As the district court noted, the mothership is in Italy, and defendants-appellees have submitted affidavits that it would consent to litigation there. (A8). Indeed, no one would seriously contend that Italy the home of the Costa cruise line, with a strong judiciary is not an adequate alternative forum. There is no conflict on the district court s discussion of the adequate alternative forum. 1 B. No express and direct conflict on uniformity of maritime law 1 If the Court were to grant review, and therefore had the full record in front of it, there would be a serious question about whether Simpson preserved the adequate alternative forum issue. Limited to the district court opinion, we cannot present this waiver argument now, but would raise it in a brief on the merits. 5

10 Simpson claims that the opinion of the district court conflicts with precedents on the importance of uniformity of maritime law. This is absolutely untrue. The district court decision was entirely in accord with the overwhelming weight of maritime authority. A host of foreign seaman claiming to have been injured on Costa ships have filed suit in Florida against these Defendants. Some of these cases were filed in state court, and some in federal court, but practically every court has reached the same conclusion as the Third District: these claims brought by foreign seaman, based on foreign injuries on Costa ships, should be dismissed based on forum non conveniens. This has been the conclusion of our Fourth District Court of Appeal, and also of the United States Court of Appeals for the Eleventh Circuit. See Valdivia v. Prestige Cruises, 898 So.2d 271 (Fla. 4th DCA 2005), pet. for rev. filed, case no. SC05-728; Bautista and Rodriguez v. CSCS International et al, case no (11th Cir. Sept. 16, 2004), affirming Bautista v. Cruise Ships Catering and Service International, 350 F. Supp. 2d 987 (S.D. Fla. 2004), and Rodriguez v. Cruise Ships Catering and Service International, 2003 U.S. Dist (S.D. Fla. Nov. 18, 2003). Federal trial courts have ordered dismissals in at least six other cases. 2 2 See Membreno v. Costa Crociere, S.p.A., 347 F. Supp. 2d 1289, (S.D. Fla. 2004); Velasquez v. CSCS International, N.V., no CV-MGC (S.D. Fla. Dec. 30, 2004); Melbourne v. CSCS Int l, N.V., No CIV (S.D. Fla. Oct. 5, 2004); Hernandez v. CSCS Int l, N.V., No CIV (S.D. Fla. Dec. 8, 2003); Estrada v. Cruise Ships Catering & Serv. Int'l, N.V., No (Nov. 30, 2004); Rey v. Cruise Ships Catering & Servs. Int'l, N.V., No (Nov. 24, 2004). Only one federal district court has reached a different conclusion. See Williams v. Cruise Ships 6

11 The decision of the district court of appeal is thus consistent with other maritime law on the same issue. There is no conflict. Simpson s real beef is that the Third District s opinion conflicts with some federal decisions on the legal standard for forum non conveniens in maritime cases. The district court followed the general forum non conveniens rule, as promulgated in Kinney. Some federal courts of appeal have adopted a forum non conveniens rule for seamen cases which is somewhat different from the general forum non conveniens rule. Compare Szumlicz v. Norwegian America Line, 698 F.2d 1192 (11th Cir. 1983) with In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1163 n.25 (5th Cir. 1987). While the Kinney rule followed by the Third District is not the same as in some federal cases, conflict with a federal court of appeals decision is not the sort of conflict needed to invoke the jurisdiction of this Court. Furthermore, the district court s refusal to apply a different, federal standard for forum non conveniens in maritime cases was entirely correct. The United States Supreme Court has held that state courts have the right to apply state forum non conveniens rules in maritime cases. American Dredging v. Miller, 510 U.S. 443 (1993). There is thus nothing objectionable about the district court of appeal s following Kinney, rather than a different, federal maritime forum non conveniens rule. Indeed, the weakness of Simpson s argument can be seen from the fact that every judge on the Third DCA both Catering & Serv. Int l, N.V., 320 F.Supp.2d 1347 (S.D. Fla. 2004). 7

12 the majority and the dissenters agreed that the court should apply Kinney, rather than a federal maritime forum non conveniens rule. (A6-7, 13). Finally, the difference between the Kinney rule and the rule followed by some federal courts would have no effect on the outcome of this case. As stated above, almost every court to consider the issue whether applying a federal or a state rule has held that these cases brought by foreign crewmembers against Costa should be dismissed based on forum non conveniens. Indeed, the district court stated that it would order dismissal even if the federal rule were controlling. (A19-20 n.7). The decision of the district court was entirely consistent with maritime law, and there is no basis for conflict jurisdiction. C. No express and direct conflict on fraud on the court Simpson and the other Plaintiffs argued that the Defendants had submitted fraudulent affidavits to the trial court. The en banc district court, in a lengthy opinion, concluded that the claimed fraud was not a reason for allowing these lawsuits to be decided by the Florida courts. The court concluded that while the affidavits were in some respects less than candid, they did not change the result. According to the district court, the Plaintiffs had made much ado about nothing. (A6, A19 n. 3). Simpson now reargues the fraud issue. According to Simpson, the Third District majority downplayed the fraudulent support of the Costa entities motions, and the trial 8

13 court s findings were watered down in the Third District majority s opinion. (Brief of Petitioner, at 2). Simpson is entitled to disagree with the district court s treatment of its assertion of fraud. But disagreement with a district court s consideration of an issue does not constitute express and direct conflict. There is no basis for conflict jurisdiction on this issue. II. EVEN IF THE COURT HAD THE DISCRETION TO EXERCISE JURISDICTION, THERE IS NO REASON TO EXERCISE IT IN THIS CASE For the reasons stated above, there is no express and direct conflict, and the Court therefore lacks jurisdiction. But even if there was a basis for discretionary review, the Court should decline to exercise its discretion. The result of the district court s decision the dismissal of the claims brought by these foreign seamen, based on foreign accidents is entirely unremarkable. The clearest proof of this is that it has been the repeated conclusion of both state and federal courts. There is no need for the Court to review this case. CONCLUSION The Court should deny the Petition for Review. Respectfully submitted, RICHARD J. MCALPIN, ESQ. MCALPIN & BRAIS, P.A. Brickell Bay View Centre Suite S.W. 8th Street 9

14 Miami, FL and LAW OFFICE OF ROBERT S. GLAZIER 540 Brickell Key Drive Suite C-1 Miami, Florida Telephone: By: Robert S. Glazier Florida Bar No CERTIFICATE OF SERVICE AND COMPLIANCE We hereby certify that a copy of this document was served by U.S. Mail on this 24th day of May, 2005, to Elizabeth K. Russo, Esq., Russo Appellate Firm, P.A., 6101 S.W. 76th Street, Miami, FL 33143; and Rivkind, Pedraza & Margulies, P.A., Concord Building, Suite 600, 66 West Flagler Street, Miami, FL We hereby certify that this brief is in Times Roman 14 point, and in compliance with the type requirements of the Florida Rules of Appellate Procedure. 10