Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 13, 2020. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D18-2413 & 3D18-2067 Lower Tribunal No. 17-15382 ________________ Guadalupe Gallego Ochoa, et al., Appellants, vs. Pedro Topete Vargas, Appellee. Appeals from the Circuit Court for Miami-Dade County, William Thomas, Judge. Brodsky Fotiu-Wojtowicz, PLLC, and Benjamin H. Brodsky, for appellants. Francis Massabki, for appellee. Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ. LINDSEY, J. Appellants (Plaintiffs below) Guadalupe Gallego Ochoa (“Gallego”) and Guadalupe Aranzazu Gayosso Gallego (“Gayosso”) appeal from an order granting a motion to dismiss on the basis of forum non conveniens. Because the trial court did not abuse its discretion, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND This case involves a series of transactions stemming from a highway construction project in Mexico under a contract granted by the Mexican government. Gallego and Gayosso filed this action in June of 2017 against Pedro Topete Vargas (“Topete”); Empresas ICA, S.A.B. de C.V. (“ICA”); Controladora de Operaciones de Infrastructura, S.A. de C.V. (“Conoisa”); Ingenieros Civiles Asociados, S.A. de C.V. (“Ingenieros”); and Grupo ICA, S.A. de C.V. (“Grupo”).1 Gallego and Gayosso asserted two claims against Topete: fraud and unjust enrichment. They asserted three claims against ICA, Conoisa, Ingenieros, and Grupo (collectively, the “Corporate Defendants”): constructive trust, fraud, and unjust enrichment. Topete moved to dismiss on numerous grounds, including that there was no nexus to Florida and that Mexico provided an adequate alternative forum. The trial court granted Topete’s motion to dismiss for forum non conveniens and later granted 1 Gallego and Gayosso bring their claims individually and derivatively on behalf of Consorcio de Desarrollo Intercontinental, S.A de C.V. and Corporacion Desarrolladora de Infrastructura, S.A de C.V. 2 the Corporate Defendants’ separately filed motion to dismiss for the same reason.2 This timely appeal follows. II. JURISDICTION We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ix) (authorizing appeals of orders that determine “the issue of forum non conveniens”). III. STANDARD OF REVIEW We review the trial court’s order granting a motion to dismiss for forum non conveniens under an abuse of discretion standard. See Abeid-Saba v. Carnival Corp., 184 So. 3d 593, 599 (Fla. 3d DCA 2016) (citing Fla. R. Civ. P. 1.061(a); Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012)); Ryder Sys., Inc. v. Davis, 997 So. 2d 1133, 1134 (Fla. 3d DCA 2008). Although the presumption of correctness is lessened when the trial court’s findings are based on affidavits rather than live testimony, this Court “still give[s] substantial deference to the trial court’s decision, where,” as here, “its balancing of the [forum non conveniens] factors is reasonable.” See Ryder, 997 So. 2d at 1135 (quoting 2 Gallego and Gayosso appealed both orders, generating two separate appeals that were consolidated for all purposes: 3D18-2067 (order granting Topete’s motion to dismiss) and 3D18-2413 (order granting the Corporate Defendants’ motion to dismiss). On August 23, 2019, this Court recognized Gallego and Gayosso’s notice of voluntary dismissal of their appeal against the Corporate Defendants (3D19- 2413), leaving only their appeal from the order granting Topete’s motion to dismiss (3D18-2067). 3 Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So. 2d 912, 916 (Fla. 4th DCA 2008)). IV. ANALYSIS “Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86, 87 (Fla. 1996) (footnote omitted).3 In Kinney, the Florida Supreme Court adopted the federal forum non conveniens standard. 4 Id. at 93. This standard requires consideration of four factors: 1) whether an adequate alternative forum exists which has jurisdiction over the case; 2) all relevant private interests, keeping in mind the “strong presumption against disturbing plaintiffs’ initial forum choice”; 3) if the balance of private interests is in or near equipoise, whether 3 “The Latin words ‘forum non conveniens’ mean ‘forum not agreeing.’” Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1249 (Del. 2018). In Latin, a forum is a “court of justice, or a judicial tribunal; a place of jurisdiction.” The Law Dictionary, https://thelawdictionary.org/forum/ (last visited April 30, 2020). “Although the origins of the doctrine in Anglo-American law are murky, most authorities agree that forum non conveniens had its earliest expression not in admiralty but in Scottish estate cases.” Am. Dredging Co. v. Miller, 510 U.S. 443, 449 (1994). 4 “Under the federal doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff’s convenience, or when the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case, even if jurisdiction and proper venue are established.” Am. Dredging, 510 U.S. at 447-48 (citations and internal quotation marks omitted) (alternations in original). 4 relevant public interests tip the scale in favor of another forum; and 4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum.” Rolls-Royce, 77 So. 3d at 859 (citing Kinney, 674 So. 2d at 90). 5 In its order granting Topete’s motion to dismiss, the trial court correctly identified the Kinney factors and concluded that “[a]n analysis of the relevant factors militate in favor of granting Defendant’s Motion to Dismiss.” On appeal, Gallego and Gayosso argue the trial court abused its discretion by failing to consider evidence that Mexico is an inadequate forum because litigating there would put them in imminent physical harm. Based on the record before us, we do not agree that the trial court abused its discretion. The parties have previously engaged in extensive litigation over this dispute and, specifically, over the issue of where this matter should be judicially resolved. In 2011, Gallego and Gayosso filed a substantially similar action against Topete and the Corporate Defendants in the United States District Court for the Southern District of Florida. The federal district court dismissed that action based on forum non conveniens. Ochoa v. Empresas ICA, S.A.B. de C.V., No. 11-23898-CIV, 2013 WL 5 Recognizing that its holding in Kinney was a “significant departure in existing court procedure,” the Florida Supreme Court adopted emergency Rule of Civil Procedure 1.061, which sets forth the four factors outlined above. Kinney, 674 So. 2d at 93 n.6. The Court permanently adopted Rule 1.061 a few months later. In re Amendments to Fla. R. of Civ. P., 682 So. 2d 105, 106 (Fla. 1996). 5 5674697 (S.D. Fla. Oct. 17, 2013). Gallego and Gayosso moved for reconsideration, raising the same or substantially similar evidence as raised here regarding their fear of litigating in Mexico. The district court denied that motion and the Eleventh Circuit affirmed. See Ochoa v. Empresas ICA, S.A.B. DE CV, 600 Fed. Appx. 725 (11th Cir. 2015). In so doing, the Eleventh Circuit noted that the district court “thoroughly weighed the facts” and “carefully considered [Gallego and Gayosso’s] fear of litigating in Mexico.” Id. at 726-27. Then, in 2016, Gallego and Gayosso filed the same case that is before us in New York state court. There, the court summarily dismissed that action “as a whole based on forum non conveniens.” 6 Here, while the trial court’s order does not expressly mention Gallego and Gayosso’s safety concerns, that fact does not necessitate an automatic reversal. The trial court’s order expressly states that “there is no credible reason to believe that the relief requested by [Gallego and Gayosso] would be unavailable in Mexico, and that bringing suit in that alternate forum would cause [Gallego and Gayosso] any undue inconvenience or prejudice.” Further, the record demonstrates that the trial court considered Gallego and Gayosso’s fear of litigating in Mexico. Their safety concerns were raised below in their response to the motion to dismiss and in Topete’s reply. Moreover, the trial 6 Topete filed an unopposed motion, which the trial court granted, to take judicial notice of the dockets, records, and opinions in the federal district court case, the appeal of that case in the Eleventh Circuit, and the New York case. 6 court weighed the results of the prior litigation in federal court, which addressed the safety concerns. Finally, there was evidence that Gallego and Gayosso have filed numerous proceedings in Mexico against Topete and/or many of the same corporate entities in this case.7 As such, we cannot find the trial court abused its discretion. V. CONCLUSION Because we find no abuse of discretion, we affirm. Affirmed. 7 Gallego and Gayosso also argue that the trial court ignored evidence of Topete’s unavailability to participate in litigation in Mexico due to his alleged fugitive status. But the record indicates the trial court was presented with Topete’s sworn statements that he would appear as a witness and participate in the dispute just as he has with the prior lawsuits in Mexico. 7