Case: 19-10986 Date Filed: 05/27/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10986 ________________________
D.C. Docket No. 8:17-cv-02229-SDM-AEP
CARMEN ELENA MONTEILH CHAVARRIA,
Plaintiff-Appellant,
versus
INTERGRO, INC., TIMOTHY DOLAN, FELIX RENTA,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(May 27, 2020)
Before ED CARNES, Chief Judge, BRANCH, and LUCK, Circuit Judges.
PER CURIAM: Case: 19-10986 Date Filed: 05/27/2020 Page: 2 of 8
Carmen Elena Monteilh Chavarria sued her employer Intergro, Inc.,
Intergro’s owner, and her supervisor. She alleged that Intergro, which is based in
Honduras, and the other defendants committed negligence, breach of contract, and
intentional infliction of emotional distress there. Seven months after filing suit —
and after relying on Florida law in two complaints and in a response to the
defendants’ motion to dismiss — Chavarria filed a motion asking the court to rule
that Honduran law instead of Florida law controlled the claims. The district court
denied that motion, ruled that Florida law applied, and on the basis of Florida law
granted the defendants’ motion to dismiss two of the claims and their motion for
summary judgment on the remaining claim. It entered final judgment for the
defendants.
Chavarria appeals. She argues to us that the district court erred in applying
Florida law instead of Honduran law. But she did not raise that issue in a timely
fashion in the district court. As a result, it was not preserved and is not properly
before us. And she has not argued to us that, assuming Florida law applies, the
district court erred in granting the defendants’ motions to dismiss and for summary
judgment, so she has forfeited any argument about that. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
I.
2 Case: 19-10986 Date Filed: 05/27/2020 Page: 3 of 8
Chavarria worked in La Lima, Honduras for Intergro, Inc., a Honduran
company. She seriously injured her eye in January 2015 during a whitewater
rafting trip that was part of a company training event. Intergro refused to pay for
her “medical expenses, any lost wages, any pain and suffering, [or] anything else
related to [her] injury.” Not only that but Intergro also fired Chavarria in May
2016. Her contract of employment did not provide any severance pay and she
received none.
Chavarria filed a lawsuit in the Middle District of Florida in September 2017,
naming as defendants: Intergro; Timothy Dolan, the owner of the company; and
Felix Renta, her supervisor. Her complaint included the following introduction:
This is an action for personal injury brought under Florida Stat. §768.041 - §768.81 et seq. (“Negligence”), for the Intentional Infliction of Emotional Distress brought under Florida common law (“IIED”), and for breach of contract pursuant to non-payment of employment termination benefits under Florida common law.
(emphasis added). Count I was titled “NEGLIGENCE OF ALL DEFENDANTS
[Under Florida Common Law],” and alleged that they negligently allowed the
whitewater rafting company to “make the decision as to what protective equipment
to provide.” (emphasis added). Count II was titled “INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS ALL DEFENDANTS [Under Florida
Common Law],” and alleged that the defendants’ “intentional refusal to pay
[Chavarria’s] lost wages, medical expenses, and other benefits, as required by
3 Case: 19-10986 Date Filed: 05/27/2020 Page: 4 of 8
Honduran law . . . caused [her] emotional distress.” (emphasis added). And Count
III was titled “BREACH OF CONTRACT INTERGRO [Under Florida Common
Law]” and alleged that Honduran law required severance payment and that failing
to abide by that requirement amounted to a breach of contract under Florida law.
(emphasis added).
The three defendants moved for a more definite statement. In response,
Chavarria filed the first amended complaint. In that complaint she included the
same introduction and the same three claims and noted that each was brought under
Florida common law.
The defendants moved to dismiss the first amended complaint, and Chavarria
filed a response in opposition to the defendants’ motion to dismiss. In that response
she relied on the substantive law of Florida, not the substantive law of Honduras, in
arguing that she had satisfied the pleading standard under Federal Rule of Civil
Procedure 12(b)(6).
Five months later, but before the motion to dismiss was decided, Chavarria
filed a “motion for choice of law.” In it she contended that under Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941), federal courts must apply the
choice of law analysis of the states where they sit, so the Florida choice of law rules
applied to her lawsuit. And, she argued, under the Florida choice of law rules,
Honduran substantive law controls, not Florida law.
4 Case: 19-10986 Date Filed: 05/27/2020 Page: 5 of 8
In denying that motion, the district court ruled that Florida substantive law
controlled. It noted that a party can waive application of non-forum law by failing
to timely raise it, and found that:
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
In that same order the court also dismissed the intentional infliction of emotional
distress claim as to all three defendants and dismissed the contract claim against
Dolan and Renta. 1 The court also ordered Chavarria to file a second amended
complaint and to provide a more definite statement about the breach of contract
claim.
In response Chavarria filed the second amended complaint, which contained
only a negligence claim against Intergro, Dolan, and Renta and a breach of contract
claim against only Intergro. It included an introduction stating that “[t]his is an
action for personal injury brought under Florida Stat. § 768.041 - § 768.81 et seq.
(‘Negligence’), and for breach of contract pursuant to non-payment of employment
1 Although the district court dismissed the contract claim against Dolan and Renta, the first amended complaint does not appear to have asserted a contract claim against them, but against only Intergro.
5 Case: 19-10986 Date Filed: 05/27/2020 Page: 6 of 8
termination benefits under Florida common law.” And the title of each count stated
in bold that it was brought “Under Florida Common Law.”
The defendants moved to dismiss the breach of contract claim under Rule
12(b)(6) and moved for summary judgment on the negligence claim. The district
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Case: 19-10986 Date Filed: 05/27/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10986 ________________________
D.C. Docket No. 8:17-cv-02229-SDM-AEP
CARMEN ELENA MONTEILH CHAVARRIA,
Plaintiff-Appellant,
versus
INTERGRO, INC., TIMOTHY DOLAN, FELIX RENTA,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(May 27, 2020)
Before ED CARNES, Chief Judge, BRANCH, and LUCK, Circuit Judges.
PER CURIAM: Case: 19-10986 Date Filed: 05/27/2020 Page: 2 of 8
Carmen Elena Monteilh Chavarria sued her employer Intergro, Inc.,
Intergro’s owner, and her supervisor. She alleged that Intergro, which is based in
Honduras, and the other defendants committed negligence, breach of contract, and
intentional infliction of emotional distress there. Seven months after filing suit —
and after relying on Florida law in two complaints and in a response to the
defendants’ motion to dismiss — Chavarria filed a motion asking the court to rule
that Honduran law instead of Florida law controlled the claims. The district court
denied that motion, ruled that Florida law applied, and on the basis of Florida law
granted the defendants’ motion to dismiss two of the claims and their motion for
summary judgment on the remaining claim. It entered final judgment for the
defendants.
Chavarria appeals. She argues to us that the district court erred in applying
Florida law instead of Honduran law. But she did not raise that issue in a timely
fashion in the district court. As a result, it was not preserved and is not properly
before us. And she has not argued to us that, assuming Florida law applies, the
district court erred in granting the defendants’ motions to dismiss and for summary
judgment, so she has forfeited any argument about that. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
I.
2 Case: 19-10986 Date Filed: 05/27/2020 Page: 3 of 8
Chavarria worked in La Lima, Honduras for Intergro, Inc., a Honduran
company. She seriously injured her eye in January 2015 during a whitewater
rafting trip that was part of a company training event. Intergro refused to pay for
her “medical expenses, any lost wages, any pain and suffering, [or] anything else
related to [her] injury.” Not only that but Intergro also fired Chavarria in May
2016. Her contract of employment did not provide any severance pay and she
received none.
Chavarria filed a lawsuit in the Middle District of Florida in September 2017,
naming as defendants: Intergro; Timothy Dolan, the owner of the company; and
Felix Renta, her supervisor. Her complaint included the following introduction:
This is an action for personal injury brought under Florida Stat. §768.041 - §768.81 et seq. (“Negligence”), for the Intentional Infliction of Emotional Distress brought under Florida common law (“IIED”), and for breach of contract pursuant to non-payment of employment termination benefits under Florida common law.
(emphasis added). Count I was titled “NEGLIGENCE OF ALL DEFENDANTS
[Under Florida Common Law],” and alleged that they negligently allowed the
whitewater rafting company to “make the decision as to what protective equipment
to provide.” (emphasis added). Count II was titled “INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS ALL DEFENDANTS [Under Florida
Common Law],” and alleged that the defendants’ “intentional refusal to pay
[Chavarria’s] lost wages, medical expenses, and other benefits, as required by
3 Case: 19-10986 Date Filed: 05/27/2020 Page: 4 of 8
Honduran law . . . caused [her] emotional distress.” (emphasis added). And Count
III was titled “BREACH OF CONTRACT INTERGRO [Under Florida Common
Law]” and alleged that Honduran law required severance payment and that failing
to abide by that requirement amounted to a breach of contract under Florida law.
(emphasis added).
The three defendants moved for a more definite statement. In response,
Chavarria filed the first amended complaint. In that complaint she included the
same introduction and the same three claims and noted that each was brought under
Florida common law.
The defendants moved to dismiss the first amended complaint, and Chavarria
filed a response in opposition to the defendants’ motion to dismiss. In that response
she relied on the substantive law of Florida, not the substantive law of Honduras, in
arguing that she had satisfied the pleading standard under Federal Rule of Civil
Procedure 12(b)(6).
Five months later, but before the motion to dismiss was decided, Chavarria
filed a “motion for choice of law.” In it she contended that under Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941), federal courts must apply the
choice of law analysis of the states where they sit, so the Florida choice of law rules
applied to her lawsuit. And, she argued, under the Florida choice of law rules,
Honduran substantive law controls, not Florida law.
4 Case: 19-10986 Date Filed: 05/27/2020 Page: 5 of 8
In denying that motion, the district court ruled that Florida substantive law
controlled. It noted that a party can waive application of non-forum law by failing
to timely raise it, and found that:
In both the complaint and the amended complaint, the plaintiff asserts emphatically (and highlights in bold) that each claim is brought under Florida common law. The plaintiff’s response to the motion to dismiss is based entirely on Florida law. Seven months elapsed between the day the plaintiff sued and the day the plaintiff moved for “choice of law.” Because the plaintiff failed to give timely notice of the claimed applicability of foreign law, she has waived her right to assert that Honduran law governs her claims.
In that same order the court also dismissed the intentional infliction of emotional
distress claim as to all three defendants and dismissed the contract claim against
Dolan and Renta. 1 The court also ordered Chavarria to file a second amended
complaint and to provide a more definite statement about the breach of contract
claim.
In response Chavarria filed the second amended complaint, which contained
only a negligence claim against Intergro, Dolan, and Renta and a breach of contract
claim against only Intergro. It included an introduction stating that “[t]his is an
action for personal injury brought under Florida Stat. § 768.041 - § 768.81 et seq.
(‘Negligence’), and for breach of contract pursuant to non-payment of employment
1 Although the district court dismissed the contract claim against Dolan and Renta, the first amended complaint does not appear to have asserted a contract claim against them, but against only Intergro.
5 Case: 19-10986 Date Filed: 05/27/2020 Page: 6 of 8
termination benefits under Florida common law.” And the title of each count stated
in bold that it was brought “Under Florida Common Law.”
The defendants moved to dismiss the breach of contract claim under Rule
12(b)(6) and moved for summary judgment on the negligence claim. The district
court granted those motions relying on Florida law. Chavarria appeals.
II.
Chavarria contends that the district court erred in applying Florida law to
both the negligence and breach of contract claims and asks us to reverse the district
court’s grant of the defendants’ motion to dismiss and motion for summary
judgment and to remand for the district court to apply Honduran law. We review de
novo both a district court’s grant of a motion to dismiss and a district court’s grant
of summary judgment. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th
Cir. 2012) (motion to dismiss); Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919
(11th Cir. 2018) (summary judgment).
Chavarria’s contention that Honduran law should apply fails on appeal for
the same reason it failed in the district court: the application of non-forum law can
be waived. “Under our precedents, a party waives its opportunity to rely on non-
forum law where it fails to timely provide — typically in its complaint or the first
motion or response when choice-of-law matters — the sources of non-forum law on
which it seeks to rely.” Sun Life Assurance Co. of Can. v. Imperial Premium Fin.,
6 Case: 19-10986 Date Filed: 05/27/2020 Page: 7 of 8
LLC, 904 F.3d 1197, 1208 (11th Cir. 2018). In Sun Life, we noted that the plaintiff
failed to plead that non-forum law applied and “seemed quite content early in the
litigation with the application of Florida law” because its primary argument relied
on Florida law. Id. at 1209. Based on those facts, we held that the plaintiff waived
its ability to rely on non-forum law. Id.
Chavarria, like the plaintiff in Sun Life, failed to raise the choice of law issue
in her pleadings or in the first responsive brief where choice of law mattered, which
was her opposition to the defendants’ motion to dismiss. And like the plaintiff in
Sun Life, she “seemed quite content early in the litigation with the application of
Florida law.” Id. In fact, in all three of her complaints filed in this case —
including the second amended complaint, which was filed after the court ruled on
the choice of law motion — Chavarria explicitly stated that she brought her claims
under Florida law. See Supra at 3–5. By only belatedly suggesting that Honduran
law applied, she waived that issue.
Chavarria asserts that in ruling she had waived the Honduran law issue, the
district court conflated two different choice of law rules. She argues that use of
non-forum law can be waived under Federal Rule of Civil Procedure 44.1, but that
it cannot be waived under Klaxon, 313 U.S. at 496, which held that when a district
court is sitting in diversity it must apply the rules of the state in which it sits for
choice of law disputes. But there was no waiver issue in Klaxon; it involved a
7 Case: 19-10986 Date Filed: 05/27/2020 Page: 8 of 8
choice of law issue that was timely raised and properly preserved. In contrast,
where a choice of law issue is not timely raised and preserved in the district court,
waiver applies. See Sun Life, 904 F.3d at 1208.
Because Chavarria’s appeal depends on an issue that she waived in the
district court, she cannot prevail here. See Wright v. Hopper, 169 F.3d 695, 708
(11th Cir. 1999) (“We will not consider claims not properly presented to the district
court and which are raised for the first time on appeal.”).2
AFFIRMED.3
2 Chavarria attempted to sue the defendants in Honduras, but putative defendant Dolan refused to answer the summons. Chavarria says that at the time that this case was pending, she was in the process of requesting letters rogatory from the Honduran Supreme Court. The district court agreed to accept those letters but they had not arrived at the time that court entered its final judgment. In her brief here, Chavarria asks us, if those letters arrive, to “take judicial notice of [the letters] and act accordingly given the reciprocity that exists between the U.S. and Honduras.” She has not explained what “act accordingly” means. Since no letters rogatory have been submitted to us, we assume they have not arrived, and we have no occasion to decide whether we could or should take judicial notice of them. 3 This case was originally scheduled for oral argument, but the panel unanimously decided that it was not necessary. See 11th Cir. R. 34-3(f). Chavarria moved to delay oral argument. Because we are issuing this opinion without oral argument, that motion is DENIED AS MOOT.