In the Supreme Court of Florida

Transcription

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., COSTA CRUISE LINES, INC., PRESTIGE CRUISES and PRESTIGE CRUISE MANAGEMENT, Respondents. ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL PETITIONER S BRIEF ON JURISDICTION Respectfully submitted, RIVKIND, PEDRAZA & MARGULIES, P.A. Concord Building, Suite West Flagler Street Miami, Florida Telephone: (305) Facsimile: (305) and- RUSSO APPELLATE FIRM, P.A Southwest 76th Street Miami, Florida Telephone (305) Facsimile (305) Counsel for Petitioner

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3 TABLE OF CONTENTS Page TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT...4 A. Conflict created by the decision s overt disregard of Kinney and its progeny...4 B. Conflict created by the decision s disruption of maritime law uniformity...6 C. Conflict created by the opinion s indifference to fraud on the court...9 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT STANDARD i

4 TABLE OF CITATIONS Page American Dredging Co. v. Miller 510 U.S. 443, 114 S. Ct. 981 (1993)...8 Burklow & Associates, Inc. v. Belcher 719 So. 2d 31 (Fla. 1st DCA 1998)...7 Carenza v. Sun International Hotels, Ltd. 699 So. 2d 830 (Fla. 4th DCA 1997)...5 City of Plant. v. Roberts 342 So. 2d 69 (Fla. 1977)...7 Desimone v. Old Dominion Insurance Co. 740 So. 2d 1233 (Fla. 4th DCA 1999)...9 Distefano v. State Farm Mutual Automobile Ins. Co. 846 So. 2d 572 (Fla. 1st DCA 2003)...9 Fantome, S.A. v. Frederick 2003 WL , 2-3 (11th Cir. 2003)... 7, 8, 9 Flying Boat, Inc. v. Alberto 723 So. 2d 866 (Fla. 4th DCA 1999)...7 Henry v. Windjammer Barefoot Cruises 851 So. 2d 731 (Fla. 3d DCA 2003)...7 Hopkins v. The Boat Club, Inc. 866 So. 2d 108 (Fla. 1st DCA 2004)...7 Kinney System v. Continental Ins. Co. 674 So. 2d 86 (Fla. 1996)... passim ii

5 Krilich v. Wolcott 717 So. 2d 582 (Fla. 4th DCA 1998)...5 Mercer v. Raine 443 So.2d 944 (Fla.1983)...9 Nadeau v. Costley 634 So. 2d 649 (Fla. 4th DCA 1994)...7 Sanwa Bank, Ltd. v. Kato 734 So. 2d 557 (Fla. 5th DCA 1999)...5 Strauss v. Allstate Insurance Company 855 So. 2d 167 (Fla. 4th DCA 2003)...4 Szumlicz v. Norwegian America Line, Inc. 698 F.2d 1192 (11th Cir. 1983)... 7, 8, 9 Tananta v. Cruise Ships Catering and Services Int l. N.V., So. 2d, 30 Fla. L. Weekly D18 (Fla. 3d DCA 2004)...1 Woods v. Nova Companies Belize Ltd 739 So. 2d 617 (Fla. 4th DCA 1999), rev. denied, 766 So.2d 222 (Fla.2000)...5 OTHER AUTHORITIES: , Fla. Stat...3 Art. V, 3(b)3 Fla. Const (1980)...3 Fla. R. App. P (a)(2)(A)(iv)...3 Fla. R. App iii

6 STATEMENT OF THE CASE AND FACTS Petitioner Fernando Simpson here seeks review of an opinion issued by the Third District Court of Appeal sitting en banc, Tananta v. Cruise Ships Catering and Services Int l., N.V., So. 2d, 30 Fla. L. Weekly D18 (Fla. 3d DCA 2004), Cope, J., Ramirez, J., and Goderich, J, dissenting. 1 The en banc opinion covered five seamen s cases, consolidated on appeal, including that of Petitioner Simpson herein. Each of the seaman had been injured in the service of his ship, all of which were cruise ships owned and operated by what even the Third District s opinion referred to as a structured maze of foreign corporations (App. 6; 30 Fla. L. Weekly D18, D19). Respondents herein together form the cruise line known to the world as Costa Cruise Lines, now wholly owned by the Miami-based Carnival Cruise Lines. (App. 4, 5, 19; 30 Fla. L. Weekly D18, D26 n.1). The seamen sued the Costa entities in Miami, Florida where they had all been hired by Costa Cruise Lines and executed their employment contracts with Costa, and where Costa managed their maintenance and cure after they were injured. (App. 5, 19; 30 Fla. L. Weekly D18, D26 n.2). The Costa entities moved to dismiss the seamen s claims, asserting forum non conveniens. (App. 8; 30 Fla. L. Weekly D18, D20 ). In support of their forum non conveniens dismissal motions, the Costa entities filed affidavits stating that there were only two Costa entities that the seamen could sue, and falsely averring that both entities had their principal places of business in 1 A copy of the opinion is attached hereto as Appendix A. All references to the opinion herein are made to both the Appendix page number and the Florida Law Weekly cite. 2

7 the Netherlands Antilles. (App. 5, 6, 19; 30 Fla. L. Weekly D18, D26 n.2 and 3). The [Costa] affiants... have sworn that Curacao, Netherlands Antilles is [the pertinent Costa entities ] principal place of business, when in reality [they are] registered there and no employees physically exist at their shell office space. (App 19; 30 Fla. L. Weekly D18, D26 n.3). The Costa affidavits were found by the trial courts to be false and a deliberate fraud perpetrated by the Costa entities on the Florida trial and appellate courts, which findings were watered down in the Third District majority s opinion to characterizations as less-than-candid, coy about the extent to which [the Costa entities] actually [do] business in the Netherlands Antilles, and somewhat disingenuous. (App. 6,19; 30 Fla. L. Weekly D18, D19, D26 n.2 and 3). In deciding that the trial courts should be directed to grant forum non conveniens dismissals in all of the seamen s cases, the Third District majority downplayed the fraudulent support for the Costa entities motions so that the judiciary of this State [will] not serve as a band-aid to the world. (App. 11; 30 Fla. L. Weekly D18, D22). Further, despite the lip service paid in the Third District majority s opinion to the analysis set by this Court in Kinney System v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996), now adopted as Fla. R. Civ. P , in fact the decision disregarded Kinney s directives by placing no burden upon the Costa entities as movants to provide evidence of alternative available fora that were more convenient for the parties, and instead required the seamen to justify their presence in Miami-Dade County court where jurisdiction and venue were undisputedly proper. (Appendix and 30 Fla. L. Weekly D18 passim). The Third District majority ended up by concluding that the seaman s cases could be dismissed for re-filing in fora never raised by the Costa entities and as to which there was no record evidence upon which to base a Kinney analysis. (App 11, 30 Fla. L. Weekly D18, D22). 3

8 The Third District majority also issued an unprecedented rule that disrupts maritime law uniformity, and made no mention in its opinion proper as to what measures were warranted by the Costa Defendants fraud on the courts of Florida, dismissing the matter with a footnote remark that litigant misconduct can be policed through , Fla. Stat. and Fla. R. App , with sanctions imposed if appropriate. (App 19; 30 Fla. L. W. at D26 n.3). Petitioner Simpson believes that the Third District majority s decision conflicts in letter and in spirit with this Court s Kinney decision and with other Florida appellate court decisions discussed below. Petitioner accordingly timely filed his notice to invoke this Court s discretionary review powers on conflict grounds, as provided in Art. V, 3(b)3 Fla. Const (1980) and Fla. R. App. P (a)(2)(A)(iv). SUMMARY OF ARGUMENT The Third District s decision expressly and directly conflicts with decisions of this Court and other district courts of appeal on the same questions of law. First, the opinion conflicts with the established law of Kinney and its progeny that a defendant moving for a forum non conveniens dismissal bears the burden of proof as to each prong under the Kinney analysis, and that evidence concerning alternative fora must be placed in the record and specifically addressed by the trial court. The Third District majority s opinion also conflicts with decisions recognizing that state law may not interfere with the uniformity of the maritime law, instead creating a rule that will allow disparate treatment of seamen who were heretofore equally entitled to their U.S. maritime law remedies. Finally, the opinion conflicts with Florida decisions holding that fraud in litigation requires severe sanctions - not the granting of the very relief a litigant has utilized fraudulent means to obtain. 4

9 ARGUMENT A. Conflict created by the decision s overt disregard of Kinney and its progeny While, as detailed in the next section below, Petitioner disagrees that Kinney is applicable in a maritime case where its application will affect substantive maritime remedies, in any proper application of Kinney the defendant bears the burden of proof as to each Kinney prong, and the propriety of any proposed alternative forum must be supported by record evidence and specifically addressed by the trial court. See, e.g., Strauss v. Allstate Insurance Company, 855 So. 2d 167, 169 (Fla. 4th DCA 2003)(reversing dismissal and transfer where record does not demonstrate that the trial court conducted the requisite analysis of the Kinney factors); Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 621 (Fla. 4th DCA 1999), rev. denied, 766 So.2d 222 (Fla.2000)(the defendant bears the burden of persuasion as to each of the steps in a forum non conveniens analysis); Sanwa Bank, Ltd. v. Kato, 734 So. 2d 557, 561 (Fla. 5th DCA 1999)(the burden of proving that there is an adequate alternative forum rests on the defendant); Carenza v. Sun International Hotels, Ltd., 699 So. 2d 830, 832 (Fla. 4th DCA 1997)(defendant must provide proof as to all factors required for a forum non conveniens dismissal). In order for a forum non conveniens dismissal to be sustained, there must have been a motion identifying a particular - and adequate - alternative forum, and the trial court must have made record findings as to the Kinney factors. See, e.g., Krilich v. Wolcott, 717 So. 2d 582, 584 (Fla. 4th DCA 1998)(forum non conveniens dismissal improper where trial court was unable to, and did not, address the adequate alternative forum factors a court must consider); The rule of law flowing from the Third District s majority opinion allows some Jones Act 5

10 seamen to recover under the Act, and others to be deprived of any such recovery via application of state law forum non conveniens principles. This impermissibly violates the principle, recognized by this Court and the Florida district courts, that state court decisions may not interfere with the uniformity of the maritime law. See, e.g., City of Plant. v. Roberts, 342 So. 2d 69, 74 (Fla. 1977)(state law can only be applied in a maritime matter where it will not materially affect the uniformity of maritime law); Hopkins v. The Boat Club, Inc., 866 So. 2d 108, 111 (Fla. 1st DCA 2004)(state law may be applied in maritime action only where it does not disturb the uniformity of maritime law); Flying Boat, Inc. v. Alberto, 723 So. 2d 866, 868 (Fla. 4th DCA 1999)(state law must yield to federal maritime law if it interferes with the proper harmony and uniformity of that law); Nadeau v. Costley, 634 So. 2d 649, 651 (Fla. 4th DCA 1994)(district court may apply state law to maritime tort action only if does not conflict with or disturb the uniformity of maritime law). As noted in Burklow & Associates, Inc. v. Belcher, 719 So. 2d 31, 35 (Fla. 1st DCA 1998), the jurisdiction of state courts over in personam admiralty actions is concurrent with that of the federal district courts, and federal maritime law controls, unless the state law to be applied does not threaten the uniformity of federal maritime law. Under these principles, the Third District should not have receded from Henry v. Windjammer Barefoot Cruises, 851 So. 2d 731 (Fla. 3d DCA 2003) as to cases involving foreign seamen. If, as Henry held - properly following the maritime rule set by Fantome, S.A. v. Frederick, 2003 WL , 2-3 (11th Cir. 2003) and Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192 (11th Cir. 1983) - an initial choice-of-law analysis results in a determination that the seaman is entitled to Jones Act remedies, the doctrine of forum non conveniens is unavailable to send his case to a foreign country where he will make no Jones Act recovery. 6

11 The Third District s opinion runs afoul of the uniformity requirement by misapplying American Dredging Co. v. Miller 510 U.S. 443, 114 S. Ct. 981 (1993) In Desimone v. Old Dominion Insurance Co. 740 So. 2d 1233 (Fla. 4th DCA 1999) Desimone v. Old Dominion Insurance Co., 740 So. 2d 1233, 1234 (Fla. 4th DCA 1999)(fraud on the court which permeates proceedings warrants severest sanctions). As stated in Distefano v. State Farm Mutual Automobile Ins. Co., 846 So. 2d 572, 574 (Fla. 1st DCA 2003), the severest of sanctions are warranted when it is shown, as the trial courts found here, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense. In direct conflict with these authorities, the deliberate fraud engaged in by the Costa defendants here in trying to get a forum non conveniens dismissal was overtly downplayed in the Third District s opinion, which re-characterized Costa s false affidavits as coy and somewhat disingenuous. The law of Florida has been clear, and should remain clear, that such fraud will not be tolerated by our court system. Observable judicial indifference to such misconduct sends an entirely wrong message to the bench, the bar, and the public. CONCLUSION The Third District s opinion misapplies Kinney, disrupts maritime law uniformity, and rewards fraud on the court. Respectfully, this Court should exercise its discretionary jurisdiction to consider the merits of the Petitioner s argument. 7

12 Respectfully submitted, RIVKIND, PEDRAZA & MARGULIES, P.A. 66 West Flagler Street Miami, Florida and- RUSSO APPELLATE FIRM, P.A Southwest 76th Street Miami, Florida Telephone (305) Counsel for Petitioner By: ELIZABETH K. RUSSO Florida Bar No JONATHAN L. GAINES Florida Bar No CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the Petitioner s Brief on Jurisdiction was sent by U.S. mail this 5th day of May, 2005 to: James Richard McAlpin, Esquire, McAlpin & Brais, P.A., 80 S.W. 8th Street, Suite 2805, Miami, Florida 33130; and Robert S. Glazier, Esquire, Law Office of Robert S. Glazier, 540 Brickell Key Drive, Suite C-1, Miami, Florida CERTIFICATE OF COMPLIANCE WITH FONT STANDARD Undersigned counsel hereby respectfully certifies that the foregoing Petitioner s Brief on Jurisdiction complies with Fla. R. App. P and has been typed in Times New Roman, 14 Point. 8