United States District Court, S.D. Florida
ORDER ON DEFENDANT'S MOTION TO DISMISS
N. Scola, Jr. United States District Judge
matter is before the Court on Defendant SunMed International
LLC's motion to dismiss the Plaintiff's complaint for
improper venue. (ECF No 19.) The Plaintiff has responded (ECF
No. 21) and the Defendant has replied, albeit untimely (ECF
No. 22). Having considered the record, the parties'
submissions, and the applicable law, the Court
denies the Defendant's motion.
(ECF No. 19.)
action arises out of the purchase of an international travel
insurance policy by a British citizen, L.H., from Defendant
Union Reiserersucherung Aktiengesellschaft
(“Union”), a German company. (Second Am. Compl.
at ¶¶ 4, 12, ECF No. 15.) Plaintiff Med-X Global,
LLC (“Med-Ex”) is a medical billing agency which
services foreign insurance companies by providing medical
billing and payment services. (ECF No. 15 at ¶ 2.) Med-X
is a New Jersey limited liability company and its members are
also New Jersey citizens. (Id.)
February 2018, LH's health failed while traveling in
Mexico. (Id. ¶ 16.) Defendant SunMed
International, LLC (“SunMed”), a medical expense
management company and administrator, arranged for L.H.'s
hospitalization at Amerimed Hospital in Mexico. (Id.
at 17.) During L.H.'s hospitalization, L.H. had to
undergo surgery. (Id. at ¶ 19.) On March 7,
2018, L.H. was flown back to the United Kingdom.
(Id. at ¶ 21.)
to the complaint, the same day that L.H. was transported back
to the United Kingdom, Med-X, serving as Amerimed's
billing agent, was advised by SunMed that Defendant Cost
Containment would now be handling the claim. (Id. at
¶ 22.) Med-X cooperated with Cost Containment's
documentation and information requests in an effort to
resolve the outstanding claim. (Id. at ¶ 23.)
The total amount claimed by Amerimed for services provided to
L.H. is $863, 749.65. (Id. at ¶ 24.) According
to the Plaintiff's allegations, the Defendants have only
conceded coverage of about $123, 220.64. (Id. at
¶ 24 n. 3.) Med-X, as Amerimed's billing agent, is
now seeking recovery from the Defendants for the full amount
billed during L.H.'s stay at Amerimed Hospital. Med-X has
named six defendants, each involved in this complex insurance
and billing scheme. The only United States defendant is
a motion to dismiss based on improper venue, the plaintiff
has the burden of showing that venue in the forum is
proper.” Wai v. Rainbow Holdings, 315
F.Supp.2d 1261, 1268 (S.D. Fla. 2004) (Altonaga, J.)
(citations omitted). In evaluating a motion to dismiss for
improper venue, the court “may consider matters outside
the pleadings such as affidavit testimony.”
Id. The court “must accept all allegations of
the complaint as true, unless contradicted by the
defendants' affidavits, and when an allegation is so
challenged the court may examine facts outside of the
complaint to determine whether venue is proper.”
Id. Here, the Defendant moves to dismiss the
complaint on the basis of international comity, a forum
selection clause, and forum non conveniens.
defendant has the burden of persuasion as to all elements of
a forum non conveniens motion, including the burden
of demonstrating that an adequate alternative forum is
available.” Leon v. Millon Air, Inc., 251 F.3d
1305, 1311 (11th Cir. 2001). In undertaking a forum non
conveniens analysis, a court must first consider whether
the proposed alternative forum is available and adequate.
See Leon v. Millon Air, Inc., 251 F.3d 1305, 1311
(11th Cir. 2001). “An alternative forum is
‘available' to the plaintiff when the foreign court
can assert jurisdiction over the litigation sought to be
transferred.” Id. An alternative forum is
adequate so long as it “offers at least some
court finds that the alternative forum is both available and
adequate, the court must then evaluate both the public and
private interests involved in retaining the case.
Leon, 251 F.3d at 1311. Private interests include
“the relative ease of access to sources of proof;
availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of the premises, . . . and all
other practical problems that make trial of a case easy,
expeditious and inexpensive.” SME Racks, Inc. v.
Sistemas Mecanicos Para Electronica, S.A., 382 F.3d
1097, 1100 (11th Cir. 2004) (quoting Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 508-09 (1947)). Public interests
include the administrative burden imposed upon the court, the
imposition of jury duty on the citizens of a community, and
the “local interest in having localized controversies
decided at home.” Id.
plaintiffs' choice of forum should rarely be disturbed
unless the balance is strongly in favor of the
defendant.” Id. (internal quotation marks
omitted). A court must “require positive evidence of
unusually extreme circumstances, and should be thoroughly
convinced that material injustice is manifest before”
denying a United States citizen or resident access to the
courts of this country. La Seguridad v. Transytur
Line, 707 F.2d 1304, 1308 n.7 (11th Cir. 1983).
“[A] foreign plaintiff's choice deserves less
deference.” Piper Aircraft Co. v. Reyno, 454
U.S. 235, 256 (1981).
Defendant moves to dismiss the complaint for improper venue
on three grounds: (1) international abstention; (2) forum
non conveniens; and (3) a forum selection clause. The
Court addresses each argument in turn.