Costa Concordia Actions: Florida Courts' Differing Views on VenueBy Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman – November 13, 2013
With the recent efforts to "right" the Costa Concordia cruise ship nearly two years after its grounding off the coast of Italy, it seems fitting to reflect on the venue battle that has taken place in the state and federal courts in Florida between the passenger-claimants and the ship owners/operators.
When the accident first occurred, there was much discussion over whether any claims would be litigated in U.S. courts given the predominantly Italian contacts with the incident. It turns out, despite the best efforts of the defendants, several claims will be litigated in the United States due to the inconsistent application of the forum non conveniens (FNC) doctrine by the Florida courts. That doctrine permits a court to dismiss a case over which it has jurisdiction if there is a more convenient forum for the claims.
The U.S. District Court for the Southern District of Florida was the first court to decide the issue in relation to the Costa Concordia accident. In Warrick v. Carnival Corp., No. 12-61389 (S.D. Fla., Feb. 4, 2013), the district court held that Massachusetts residents-plaintiffs had to litigate their claims against the Carnival/Costa defendants in Italy. The plaintiffs had sued Costa Crociere S.p.A. (the Italian owner and operator of the Costa Concordia), Costa Cruise Lines, Inc. (the Florida marketing subsidiary of Costa Crociere S.p.A.), Carnival Corp. (the Panamanian umbrella organization), and Carnival plc (the English parent to Costa Crociere S.p.A.).
In analyzing the FNC issue, the court applied the requisite deference owed to the plaintiffs' choice of forum and acknowledged that evidence relating to the individual plaintiff's damages will likely be located in the United States. The court, however, found that the private- and public-interest factors heavily favored trial in Italy. With respect to the private-interest factors, the court stated that the evidence is located "predominantly in Italy, held by Italians, likely written in Italian, all of which is difficulty [sic], costly, and slow to produce here." The court viewed the public-interest factors as similarly favoring dismissal due to the heavily congested dockets in the Southern District of Florida, the much stronger interest that Italy has in the resolution of the accident claims, and the fact that Italy is "more at home" with the law that will likely govern the action. Finally, the court noted that the presence of two U.S. corporations as defendants did not "materially change the calculation," because the company that implemented the policies and procedures is Costa Crociere, an Italian entity.
At the time the district court in Warrick was considering the FNC motion, the Carnival/Costa entities were fighting to dismiss two other sets of claims that were filed in Florida state court. In one case (Scimone v. Carnival Corp., No. 12-26072-CA02), 48 claimants brought an action against Carnival and its related entities, and in the same court, 56 claimants brought a separate action against the same defendants (Abeid-Saba v. Carnival Corp., No. 12-26076-CA02). The defendants removed each case to the Southern District of Florida on the basis of the Class Action Fairness Act of 2005 (CAFA), which allows removal of a "mass action"—as if it were a class action—if the action contains monetary-relief claims for 100 or more persons and the claims are proposed to be tried jointly based on common questions of law or fact.
Upon removal of the actions, the defendants filed motions to dismiss the cases to Italy based on FNC grounds and the forum-selection clause (Italy) contained in the passenger tickets. The plaintiffs in both actions filed motions to remand to state court, arguing that federal jurisdiction did not exist under CAFA because each action was brought on behalf of fewer than 100 persons and the plaintiffs have not proposed to have the two cases tried jointly. The trial court agreed with the plaintiffs' interpretation of the CAFA definition of "mass action," holding that CAFA does not supply a basis for removing the two actions because neither suit has 100 plaintiffs and the plaintiffs did not propose for the cases to be tried jointly. The district court remanded the cases for lack of subject-matter jurisdiction. See Abeid-Saba v. Carnival Corp., No. 12-CV-23505 (Feb. 15, 2013); Scimone v. Carnival Corp., No. 12-CV-23513 (Feb. 15, 2013).
The Eleventh Circuit Court of Appeals granted leave to appeal the district court's remand orders on the following issue of first impression in the circuit: whether a defendant can remove multiple and separate lawsuits as mass actions under CAFA if the lawsuits in the aggregate contain 100 or more persons' claims and where the plaintiff has not proposed that the cases be tried jointly. The Eleventh Circuit agreed with the district court that the defendants had no right to remove the cases to federal court. The court rejected the defendants' argument that by refiling the original action as two nearly identical separate actions, the plaintiffs implicitly proposed a joint trial. The court stated that the "suggestion" of a joint trial is not sufficient, and in any event, the plaintiffs' dismissal of the single action and subsequent refiling of two separate actions actually suggested the opposite—that the plaintiffs did not want a joint trial. The court likewise rejected the defendants' artful pleading argument, finding that the plaintiffs are entitled to structure their lawsuits to avoid CAFA jurisdiction. The court left open the question of whether the definition of "mass action" would be satisfied where a state trial judge sua sponte ordered the consolidation of the actions, but held that the statute clearly bars removal where the claims are joined upon motion of the defendant. See Scimone v. Carnival Corp., No. 13012291, 720 F.3d 876 (11th Cir., July 1, 2013).
After the cases were remanded to state court, the respective trial judges decided the motions to dismiss on FNC grounds and reached the opposite conclusion with regard to the claims of the U.S.-resident plaintiffs. Despite factual similarities and applying the same FNC test, the Florida court dismissed the foreign and U.S. plaintiffs' claims in one case but only the foreign plaintiffs' claims in the other. In Abeid-Saba v. Carnival Corp., No. 12-26076-CA 01 (Fla. Cir. Ct. July 19, 2013), the court dismissed on FNC grounds the claims of all 57 plaintiffs, including 5 U.S. residents. The court recited facts indicating little connection between the alleged wrongdoing and the United States: The incident occurred in Italy; none of the Costa Concordia’s 1,024 crewmembers were U.S. citizens; neither Carnival nor Costa Cruise Lines hired, trained, or supervised any of the crew; the cruise ship was an Italian vessel under the command of an Italian captain, being regulated by Italian authorities; neither Carnival nor Costa Cruise Lines operated, chartered, designed, or constructed the Costa Concordia; most of the evidence remains in Italy, and evidence seized by Italian authorities remains in the possession of Italian officials; almost all witnesses are located in Italy; and an Italian company built and designed the cruise ship. The court concluded that the FNC "private interest factors" favored dismissal because an overwhelming amount of evidence was located in Italy and Italian law would govern allegations that defendants violated the Italian civil code. The "public interest" factors also favored dismissal because the allegedly wrongful conduct occurred outside the United States and neither Carnival nor Costa Cruise Lines (businesses operating in Florida) had directed the crew to engage in the alleged wrongful conduct.
In contrast, in Scimone v. Carnival Corp., No. 12-26072-CA 02 (Fla. Cir. Ct. July 19, 2013), the court dismissed the claims of the 35 foreign plaintiffs but not of the 17 U.S. plaintiffs. Assessing the public-interest factors, the court concluded that the U.S. plaintiffs' claims should not be dismissed because (1) evidence located in Italy has been made available by Italian courts, (2) physical access to the incident site is not needed due to sufficient photographic and documentary evidence, and (3) although difficulties may arise in Florida court with Italian witnesses, a similar problem would exist in Italy because Carnival Corp.'s principal place of business is Florida, and Carnival and Costa Crociere's executive management and executive boards are located in England. Unlike the court in Abeid-Saba, with respect to the U.S. plaintiffs' claims, the court also concluded that some of the alleged negligent conduct arose in Florida. In finding that public-interest factors favored denying the motion to dismiss, the court found that there is a relation to the Florida forum and that the law of the United States and Italy do not significantly conflict.
Although it seems odd that some but not all U.S. resident-claimants have the opportunity to try their claims in Florida while others will litigate in Italy, unless the Florida appellate court decides otherwise, this inconsistent result will stand.
Keywords: litigation, mass torts, Carnival Corp., Italy, FNC, forum non conveniens