Aerolineas Argentinas, SA v. Gimenez

807 So. 2d 111, 2002 WL 83597
CourtDistrict Court of Appeal of Florida
DecidedJanuary 23, 2002
Docket3D01-615
StatusPublished
Cited by24 cases

This text of 807 So. 2d 111 (Aerolineas Argentinas, SA v. Gimenez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aerolineas Argentinas, SA v. Gimenez, 807 So. 2d 111, 2002 WL 83597 (Fla. Ct. App. 2002).

Opinion

807 So.2d 111 (2002)

AEROLINEAS ARGENTINAS, S.A., etc., Appellant,
v.
Raquel Laura GIMENEZ, etc., Appellee.

No. 3D01-615.

District Court of Appeal of Florida, Third District.

January 23, 2002.

*112 Thornton, Davis & Fein and Holly S. Harvey, Miami, for appellant.

Nolan Law Group and Floyd A. Wisner (Chicago, Illinois); Colson Hicks Eidson and Marc Cooper, Coral Gables, for appellee.

Before GERSTEN, GODERICH and SORONDO, JJ.

PER CURIAM.

The defendant, Aerolineas Argentinas, S.A. [Aerolineas], appeals from a non-final order denying its motion to dismiss for forum non conveniens. We reverse.

On October 10, 1997, Flight No. 2553, allegedly operated by defendants, Aerolineas and Austral Lineas Aereas-Cielos Del Sur, S.A. [Austral], crashed in Uruguay while en route from Posados, Argentina, to Buenos Aires, Argentina, killing all sixty-nine passengers and five crew members. The passengers were all citizens and residents of Argentina.

In October 1999, the personal representatives of forty-nine of those killed in the crash brought wrongful death actions against Austral in federal court in Argentina alleging a malfunction of the aircraft's Pitot tube and the air speed indicator. The next day, the personal representatives of fifty-two of those killed in the crash brought wrongful death actions in the Circuit Court of Miami-Dade County against Aerolineas and Austral alleging that they negligently trained their flight crews in Miami, Florida. Two of the personal representatives are citizens and three are residents of the United States. One of the residents, Raquel Laura Gimenez, lives in Miami, Florida.

Aerolineas filed a motion to dismiss for forum non conveniens, with supporting affidavit, seeking to transfer this action to the adequate and more convenient alternate forum of Argentina. Aerolineas argued that the majority of the witnesses and documents relevant to the handling, behavior, and maintenance of the aircraft and pilot qualifications would be located in Argentina and Uruguay; that witnesses and evidence of the crew's conduct prior to the crash would be located in Argentina and Uruguay; that any eyewitness to the crash, the accident site itself, and witnesses and documents relevant to that crash investigation would be located in Uruguay; and that likely damage witnesses, the plaintiffs themselves, are mostly residents of Argentina.

The plaintiffs opposed the motion and filed expert affidavits challenging the adequacy of the Argentinian forum for several reasons. First, the plaintiffs expert explained that Argentina, by statute, imposes *113 a judicial tax equivalent to three percent of the amount claimed in the complaint. The plaintiffs' attorney estimated that a three percent filing fee as to all the suits brought in Argentina against the defendants would total in excess of $12,000,000. Next, the plaintiffs' expert also noted that, under Argentinian law, a plaintiff must offer all proof jointly with the filing of the complaint, that discovery is limited, that parties are not allowed to interrogate witnesses except under limited circumstances, and that it is difficult to obtain proof from witnesses abroad.

The plaintiffs also responded to the motion by indicating that witnesses and documents relating to the engineering, design, manufacture, and assembly of the aircraft were located in the United States; that representatives of the United States, Boeing Corporation, the Federal Aviation Administration, and the National Transportation Safety Board, that participated in the crash investigation, resided in the United States; and that the cockpit voice recorder and flight recorder were analyzed by Boeing Corporation's personnel located in California.

The trial court heard the motion and entered an order stating, "[a]s a practical matter, the assessment of the costs in the millions of dollars precludes the plaintiffs from litigating in Argentina." On this basis, the trial court concluded that Argentina was not an adequate alternate forum and denied Aerolineas' motion to dismiss. Aerolineas' motion for rehearing suggested that the court in Argentina might waive the bond requirement or reduce it. The motion for rehearing was denied, and Aerolineas' appeal follows.

Aerolineas contends that the trial court abused its discretion by denying its motion to dismiss for forum non conveniens. We agree.

In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 93-94 (Fla. 1996), the Florida Supreme Court adopted the federal doctrine of forum non conveniens and codified it in Florida Rule of Civil Procedure 1.061. Rule 1.061(a) provides:

Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing the plaintiffs' initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.

In accordance therewith, we first examine whether Argentina is an adequate alternate forum. "Ordinarily, this requirement will be satisfied when the defendant is `amenable to process' in the other jurisdiction." Kinney, 674 So.2d at 90 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). In the instant case, both defendants are subject to personal jurisdiction and "amenable to process" in Argentina. *114 The adequacy of the Argentinian forum is evident from the plaintiffs' own conduct in filing forty-nine wrongful death suits against Austral in Argentina. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1144 (9th Cir.2001)(holding that New Zealand's accident compensation system, where plaintiffs had already filed claim and received compensation, provided an adequate alternate remedy); Ilusorio v. Ilusorio-Bildner, 103 F.Supp.2d 672, 674 (S.D.N.Y.2000)(holding that the adequacy of the Philippines seems clear from the plaintiffs own conduct because she has commenced four lawsuits there against one or both defendants); Younis v. American University in Cairo, 30 F.Supp.2d 390, 395 (S.D.N.Y.1998)(holding that by instituting his action in the Egyptian courts, the plaintiff has sacrificed substantially any contention that litigating in Egypt would be significantly less convenient than litigating here); Luptak v. Kutchins, 768 So.2d 1196, 1197 (Fla. 4th DCA 2000)(holding that trial court's dismissal would not be disturbed, particularly where plaintiff had filed the same action in Michigan and it had already been dismissed on the merits).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CORDIS CORPORATION v. WILLIE PAUL EDNESOME
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. STEPHEN YOUNG
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. STEFANO CONVERTINO, etc.
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. RICHARD MCNAMARA AND MICHELLE MCNAMARA
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. PAMELA COELHO
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. NICOLE WILLIAMS, etc.
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. KELLY LISTER
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. JESSICA JOHNSON-WILLIAMS
District Court of Appeal of Florida, 2021
CORDIS CORPORATION v. ASHLEY K. MCCALL, etc.
District Court of Appeal of Florida, 2021
Rabie Cortez v. Palace Holdings, S.A. De C.V.
66 So. 3d 959 (District Court of Appeal of Florida, 2011)
RYDER SYSTEM, INC. v. Davis
997 So. 2d 1133 (District Court of Appeal of Florida, 2008)
Telemundo Network Group v. Azteca Intern.
957 So. 2d 705 (District Court of Appeal of Florida, 2007)
RJ Reynolds Tobacco Co. v. Carter
951 So. 2d 105 (District Court of Appeal of Florida, 2007)
Kawasaki Motors Corp. v. Foster
899 So. 2d 408 (District Court of Appeal of Florida, 2005)
Tananta v. Cruise Ships Catering & Services Int'l., N.V.
909 So. 2d 874 (District Court of Appeal of Florida, 2004)
Tananta v. CRUISE SHIPS CATERING AND SERV.
909 So. 2d 874 (District Court of Appeal of Florida, 2004)
Warter v. Boston Securities, S.A.
380 F. Supp. 2d 1299 (S.D. Florida, 2004)
E.I. DuPont de Nemours & Co. v. Super Helechos, S.A.
874 So. 2d 1244 (District Court of Appeal of Florida, 2004)
Holmes v. Posler
847 So. 2d 583 (District Court of Appeal of Florida, 2003)
MURSIA INVEST. CORP. v. Industria Cartonera Dominicana
847 So. 2d 1064 (District Court of Appeal of Florida, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
807 So. 2d 111, 2002 WL 83597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aerolineas-argentinas-sa-v-gimenez-fladistctapp-2002.