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Fresh Results, LLC v. ASF Holland, B.V.

United States District Court, S.D. Florida

September 20, 2019




         THIS CAUSE is before the Court upon the mandate of the United States Court of Appeals for the Eleventh Circuit, ECF No. [66] (“Mandate”), vacating the Court’s order of dismissal on the basis of forum non conveniens, ECF No. [61] (“Order”), and remanding for further proceedings. The Court has carefully reviewed the Mandate, the Order, the record in this case, including the supplemental briefing submitted by the parties, ECF Nos. [75], [81], [85], the applicable law, and is otherwise fully advised. Moreover, the Court has had the benefit of oral argument from counsel at a recently scheduled hearing. For the reasons that follow, Defendant ASF Holland, B.V.’s (“ASF”) Motion to Dismiss, ECF No. [46] (“Motion”) is granted in part.

         I. BACKGROUND

         Plaintiff Fresh Results, LLC (“Fresh Results”) asserts claims for breach of contract, negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment, fraudulent inducement, conversion, and tortious interference with a business relationship against ASF, arising from the consignment and sale of fresh blueberries sourced from growers located in South America (the “Growers”). See ECF No. [37] (“SAC”). In its Motion, ASF sought dismissal of the SAC on several grounds, including forum non conveniens, lack of standing, failure to state a claim, and the failure to plead fraud with particularity. See generally, ECF No. [46]. In its Order, this Court concluded that the SAC should be dismissed on forum non conveniens grounds. The Court based its analysis on the private interest factors set forth in Wilson v. Island Sea Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009) (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F.3d 1283, 1289–90 (11th Cir. 2009)) and the determination that the private interest factors were not in or near equipoise. Therefore, the Court did not engage in an analysis of all public interest factors. Moreover, the Court did not address the remaining arguments for dismissal. See ECF No. [61].

         Fresh Results filed a notice of appeal of the Court’s Order, ECF No. [62]. On appeal, the Eleventh Circuit determined that the Court abused its discretion in failing to consider the relevant public factors and committed two errors in its analysis of the private factors. See ECF No. [66] at 4. Specifically, the Eleventh Circuit expressly disavowed the equipoise standard applied by the Court and directed the Court on remand to consider all relevant private and public factors. The Eleventh Circuit invited the Court to reweigh the private factors and expressly directed the Court to correct two errors in its analysis of the private factors: the Court could not disregard the importance of the Growers because they are non-parties, and the Court’s reliance solely on the absence of a treaty regarding the reciprocal recognition and enforceability of a possible judgment was an erroneous factor to weigh in favor of dismissal.

         At the request of the parties, the Court held a status conference following issuance of the Mandate. The Court thereafter permitted the parties to submit additional briefing. See ECF Nos. [71], [75], [81]. The Court also heard argument from the parties at a hearing held on August 8, 2019. See ECF No. [86]. With the benefit of the supplemental briefing and argument from the parties, and clarification and directions from the Eleventh Circuit, the Court now conducts the forum non conveniens analysis anew.


         The doctrine of forum non conveniens permits a court to decline to exercise jurisdiction when the convenience of the parties and the interests of justice weigh in favor of litigating the action in an alternative forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). Analytically, the court’s examination is three-pronged. Id. When moving to dismiss a case on forum non conveniens grounds, the movant must show: (1) the availability of an alternative and adequate forum; (2) that public and private factors weigh in favor of dismissal; and (3) that the plaintiff can reinstate his suit in the alternative forum. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001).

         The Supreme Court has “characterized forum non conveniens as essentially, ‘a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.’” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429 (2007) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994)). “The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the parties’ and court’s own convenience, as well as the relevant public and private interests, indicate that the action should be tried in a different forum.” Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009). “This tool ‘is to be favored’ for ensuring that federal courts only hear ‘those cases where contacts with the American forum predominate.’” Aldana v. Fresh Del Monte Produce, Inc., No. 01-3399-CIV, 2007 WL 3054986, at *3 (S.D. Fla. Oct. 16, 2007), aff’d sub nom, Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (11th Cir. 2009) (quoting Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1519 n.10 (11th Cir. 1985)).

         The defendant invoking forum non conveniens “bears a heavy burden in opposing the plaintiff’s chosen forum.” Sinochem Int’l Co. Ltd., 549 U.S. at 430. In fact, at the outset, the scale tips in favor of a plaintiff’s chosen forum when the plaintiff is a domestic citizen. Duha v. Agrium, Inc., 448 F.3d 867, 874-75 (6th Cir. 2006). There is a strong presumption by the Supreme Court that forum non conveniens should only be employed in “exceptional circumstances” and that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The general rule, therefore, is that dismissal for forum non conveniens is proper only when a defendant “establish[es] such oppressiveness and vexation . . . as to be out of all proportion to plaintiff’s convenience, which may be shown to be slight or nonexistent.” Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947). To the extent that courts consider matters outside the complaint, courts must “draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff.” OOO-RM Invest v. Net Element Int’l, Inc., No. 14-20903-CIV, 2014 WL 12613283, at *2-3 (S.D. Fla. Nov. 3, 2014) (citing Webster v. Royal Caribbean Cruises, Ltd., 124 F.Supp.2d 1317, 1320 (S.D. Fla. 2000) and Wai v. Rainbow Holdings, 315 F.Supp.2d 1261, 1268 (S.D. Fla. 2004)). In light of these standards, the Court reconsiders the issue of forum non conveniens in this case.


         A. Forum non conveniens

         The essential facts underlying Plaintiff’s claims in this case are unchanged and are fully set forth in the Court’s previous Order. See ECF No. [61]. In its Motion, ASF argues that the SAC should be dismissed on forum non conveniens grounds because litigating this case in the Southern District of Florida would impose a heavy burden on ASF and the Court, and make full and fair adjudication difficult, if not impossible, due to the location and inaccessibility of evidence and fact witnesses.

         i. Availability and Adequacy of an Alternative Forum

         “Availability and adequacy warrant separate consideration.” Leon, 251 F.3d at 1311. Ordinarily, an alternative forum is available simply “when the defendant is amenable to process in the other jurisdiction.” Piper, 454 U.S. at 255 n.22 (internal citation omitted). If the remedy offered in the other forum is unsatisfactory, this requirement may not be satisfied. See Id . “[T]he Supreme Court has instructed us that a remedy is inadequate when it amounts to ‘no remedy at all.’” Aldana, 578 F.3d at 1290 (quoting Piper, 454 U.S. at 254).

         ASF argues that The Netherlands is an adequate alternative forum.[1] Defendant’s sworn declaration of Sebastiaan Moolenaar (“Moolenaar”), a lawyer admitted to practice in The Netherlands, states that claims raised by Plaintiff may be asserted in The Netherlands. See ECF No. [46-2], at ¶¶ 3-11.[2] In addition, Moolenaar affirms that ASF is amenable to service of process and subject to the personal jurisdiction of The Netherlands’ court system. Id., at ¶ 12. Because the Court finds that Defendant is susceptible to suit in The Netherlands, the “availability” prong is satisfied. See Aldana, 578 F.3d at 1290 (“In order to be available, the foreign court must be able to assert jurisdiction over the litigation sought to be transferred.”). The “adequacy” consideration is similarly satisfied because all of Plaintiff’s claims are cognizable under Dutch law. As such, the Court finds, as it did in the Order, that The Netherlands is an adequate available alternative forum. However, even when an alternate forum is available, a defendant still bears a heavy burden in demonstrating the offsetting disadvantage to litigating in a plaintiff’s chosen forum. Thus, the Court proceeds to a consideration of the relevant private and public interest factors.

         Once an adequate alternative forum has been established, the Supreme Court has directed district courts to consider the “private interest of the litigant.” Gulf Oil Corp., 330 U.S. at 508. If the court finds that private factors favor dismissal, the Court then determines whether or not factors of public interest tip the balance in favor of a trial in a foreign forum. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983).

         ii. Private Interest Factors

         The private interest factors a court may consider in its forum non conveniens analysis include (1) ease of access to sources of proof and evidence; (2) availability and costs of obtaining willing and unwilling witnesses, and (3) “all other practical problems that make trial of the case easy, expeditious and inexpensive.” Id. When plaintiffs are “citizens, residents, or corporations of this country, ” the Eleventh Circuit mandates that a district court “‘require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen access to the courts of this country.’” SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101-02 (11th Cir. 2004); see also La Seguridad, 707 F.2d at 1308 n.7. The deference given to a plaintiff’s choice of forum is especially strong in the Eleventh Circuit. Here, Plaintiff is a United States limited liability company with its principal place of business in Florida. Therefore, the Court gives Plaintiff’s choice of forum a high level of deference and presumption of convenience. See TNT USA, Inc. v. TrafiExpress, S.A. de C.V., 434 F.Supp.2d 1322, 1333 (S.D. Fla. 2006).

         In the Motion, ASF argues that the location of witnesses and evidence favor dismissal on forum non conveniens grounds.[3] Whether sources of proof are accessed with relative ease in Plaintiff’s chosen forum, is “[p]erhaps the most important ‘private interest’ of the litigants . . . .” Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003); see also, e.g., Da Rocha v. Bell Helicopter Textron, Inc., 451 F.Supp.2d 1318, 1324 (S.D. Fla. 2006) (dismissal on forum non conveniens grounds supported by “the quantity and quality of the evidence” located in Brazil); Lisa, S.A. v. Gutierrez Mayorga, 441 F.Supp.2d 1233, 1239 (S.D. Fla. 2006) (explaining that ...

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