United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS UPON REMAND FROM ELEVENTH
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon the mandate of the
United States Court of Appeals for the Eleventh Circuit, ECF
No.  (“Mandate”), vacating the Court’s
order of dismissal on the basis of forum non
conveniens, ECF No.  (“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. , , , 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.
 (“Motion”) is granted in part.
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.  (“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. . 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. .
Results filed a notice of appeal of the Court’s Order,
ECF No. . 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.  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.
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. , , . The Court also heard
argument from the parties at a hearing held on August 8,
2019. See ECF No. . 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
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).
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.
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.
Forum non conveniens
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. . 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.
Availability and Adequacy of an Alternative Forum
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).
argues that The Netherlands is an adequate alternative
forum. 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. 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.
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).
Private Interest Factors
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).
Motion, ASF argues that the location of witnesses and
evidence favor dismissal on forum non conveniens
grounds. 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