Abeid-Saba v. Carnival Corp.

Third District Court of Appeal
State of Florida

Opinion filed January 27, 2016.
Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D13-2092 & 3D13-2223
Lower Tribunal Nos. 12-26076 & 12-26072
________________

Denise Abeid-Saba, et al.,
Appellants/Appellees/Cross-Appellees,

vs.

Carnival Corp., Carnival PLC, Costa Crociere, S.p.A., Costa
Cruise Lines, Inc., and Joseph Farcus Architect, P.A.,
Appellees/Appellants/Cross-Appellants.

Appeals from the Circuit Court for Miami-Dade County, Norma S.
Lindsey and Spencer Eig, Judges.

Napoli Bern Ripka Shkolnik & Associates, LLP, and Louise R. Caro,
for appellants/appellees/cross-appellees.

Arnold & Porter, LLP, and Thad T. Dameris, (Houston) and David J.
Weiner (Washington, D.C.); Blank Rome LLP and John D. Kimball (New
York), for appellees/appellants/cross-appellants.

Before LAGOA, SALTER, and FERNANDEZ, JJ.

LAGOA, J.
 Appellant, Denise Abeid-Saba (“Abeid-Saba”), appeals from a non-final

order granting Appellees, Carnival Corporation, Carnival Corporation & plc, Costa

Cruise Lines, Inc., Costa Crociere, S.p.A., and Joseph Farcus, Architect, P.A.’s

(collectively, “Carnival”), motion to dismiss for forum non conveniens.

Appellants/Cross-Appellees, Carnival, and Appellee/Cross-Appellant,

Geoffrey Scimone (“Scimone”), appeal from a non-final order granting in part and

denying in part Carnival’s motion to dismiss for forum non conveniens. 1

For purposes of this appeal, we consolidate the respective orders on appeal

in case number 13-2092 (“Abeid-Saba”) and case number 13-2223 (“Scimone II”).

For the reasons set forth below, we affirm the order in Abeid-Saba and

reverse in part and affirm in part the order in Scimone II.

I. FACTUAL AND PROCEDURAL HISTORY

Both Abeid-Saba and Scimone II involve claims brought by passengers

aboard the Italian-flagged cruise ship, MS Costa Concordia (the “Concordia” or

“Ship”). On January 13, 2012, the Concordia departed Civitavecchia, Italy to

begin a seven-day voyage to Savona, Italy. Both complaints allege that on January

13, 2012, the Ship ran aground after her Captain, Francesco Schettino, deviated

from the planned course to execute a maneuver known as a “bow” or “sail-by

1 Neither Abeid-Saba nor Scimone contest the dismissal of the non-U.S. plaintiffs.
Indeed, counsel for Scimone conceded this issue during oral argument. As such,
we affirm without further discussion both the Abeid-Saba order and the Scimone II
order dismissing the non-U.S. plaintiffs.
2
salute.”2 During the course of the maneuver, the Concordia collided with an

underwater reef in Italian territorial waters causing catastrophic damage to her hull.

This precipitated the evacuation of 3206 passengers, of whom approximately 100

were from the United States, and over 1000 crewmembers. Most evacuees were

taken to nearby Giglio Island. Following the accident, a number of Italian agencies

commenced investigations to uncover the cause or causes of the accident.

Within weeks of the accident, several passengers filed suit in the Eleventh

Judicial Circuit Court of Florida. See Scimone v. Carnival Cruise Lines, No. 12-

3496 CA 40 (Fla. 11th Cir. Ct. Jan. 27, 2012) (“Scimone I”). After the number of

plaintiffs grew, however, plaintiffs voluntarily dismissed Scimone I, divided the

passengers into two groups, and on July 5, 2012, re-filed two separate actions:

Abeid-Saba and Scimone II.

Abeid-Saba involves fifty-seven plaintiffs, of whom five are United States

residents. Scimone II involves fifty-two plaintiffs, of whom seventeen are United

States residents. Both groups of plaintiffs alleged twelve identical counts3 against

five named defendants: Carnival Corporation, a Panamanian Corporation with its

2 This maneuver is also called a near-shore salute, and brings a ship close to shore
to salute those on land.
3 The counts were: (1) maritime negligence, (2) gross negligence, (3) negligent-

product defect (under Italian law), (4) professional negligence, (5) intentional
failure to warn, (6) intentional failure to abandon ship, (7) intentional failure to
notify authorities, (8) corporate pattern and practice, (9) intentional infliction of
emotional distress, (10) negligent retention, (11) fraudulent misrepresentation, and
(12) fraudulent inducement.
3
principal place of business in Florida; Carnival Corporation & plc, incorporated in

England and Wales with its principal place of business in London, England; Costa

Cruise Lines, a Florida corporation with its principal place of business in Florida;

Costa Crociere, S.p.A., a subsidiary of Carnival Corporation & plc and an Italian

company, that has its principal place of business in Genoa, Italy; and Joseph

Farcus, a Florida-licensed architect.4

On September 26, 2012, Carnival removed Abeid-Saba and Scimone II from

the Eleventh Judicial Circuit Court of Florida to the United States District Court

for the Southern District of Florida under the Class Action Fairness Act, and

subsequently filed a motion to dismiss for forum non conveniens. On February 15,

2013, the U.S. District Court remanded both cases to the Eleventh Judicial Circuit

without resolving Carnival’s motion to dismiss on the merits.5 After remand,

Carnival moved to dismiss both Abeid-Saba and Scimone II, again based on forum

non conveniens.

A. THE TRIAL COURT’S ORDER IN ABEID-SABA

On May 20, 2013, the trial court in Abeid-Saba conducted a hearing on

Carnival’s motion to dismiss. In support of its motion, Carnival submitted several

4Unnamed John Does and John Does Inc. were also listed as defendants.
5The United States Court of Appeals for the Eleventh Circuit affirmed the District
Court’s remand. See Scimone v. Carnival Corp., 720 F.3d 876, 878-79 (11th Cir.
2013) (stating removal was improper under the Class Action Fairness Act and
other federal statutes because neither the state court nor the plaintiffs had
“proposed to try 100 or more persons’ claims jointly”).
4
sworn declarations and exhibits. In opposition, Abeid-Saba submitted a single

sworn affidavit, along with various news articles and documents, none of which

were sworn. Subsequent to the hearing, the trial court issued an extensive and

thorough order containing detailed factual findings and extensive legal analysis, in

which the trial court applied the four-part forum non conveniens test set out in

Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), as

well as the Florida Supreme Court’s opinion in Cortez v. Palace Resorts, Inc., 123

So. 3d 1085 (Fla. 2013). The trial court also analyzed each of the twelve counts

asserted by the Abeid-Saba plaintiffs for purposes of evaluating the third prong of

Kinney as modified by Cortez.

In its written order, the trial court found: (i) Italy is an adequate alternate

forum; (ii) as to the private interest factors, Carnival presented positive evidence

that material injustice would result if the case were litigated in Florida; (iii) the

public interest factors favored litigating the case in Italy; and (iv) the Abeid-Saba

plaintiffs could reinstate their claims in Italy without undue burden. Carnival’s

motion to dismiss was granted as to all plaintiffs—U.S. and non-U.S. alike.

B. THE TRIAL COURT’S ORDER IN SCIMONE II

The trial court in Scimone II conducted a hearing on Carnival’s motion to

dismiss on May 20, 2013, subsequent to which, it issued its order. The trial court

5
found: (i) Italy is an adequate alternate forum; (ii) the private interest factors

favored dismissal with respect to the non-U.S. plaintiffs, but not with respect to the

U.S. plaintiffs; (iii) the public interest factors favored dismissal with respect to the

non-U.S. plaintiffs, but not with respect to the U.S. plaintiffs; and (iv) removing

the case from Florida to Italy would be unduly burdensome to the U.S. plaintiffs

because they would have to transport evidence from the United States to Italy and

have the evidence translated.

Abeid-Saba appeals the order granting Carnival’s motion to dismiss.

Scimone and Carnival appeal from the order granting in part and denying in part

Carnival’s motion to dismiss. Carnival argues both cases should be dismissed

under the forum non conveniens doctrine. We agree. For the reasons set forth

below, we affirm the order in Abeid-Saba and affirm in part and reverse in part the

order in Scimone II.

II. STANDARD OF REVIEW

We review orders granting or denying a motion to dismiss on forum non

conveniens grounds for an abuse of discretion. See Fla. R. Civ. P. 1.061(a); Rolls-

Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012).

III. ANALYSIS

6
 In Kinney, the Florida Supreme Court adopted the federal forum non

conveniens test “[i]n response to [the] perceived burden being placed on Florida

trial courts to adjudicate disputes unrelated to Florida.” Cortez, 123 So. 3d at

1091. The four-part test provides:

[1] As a prerequisite, the court must establish whether an adequate
alternative forum exists which possesses jurisdiction over the whole
case. [2] Next, the trial judge must consider all relevant factors of
private interest, weighing in the balance a strong presumption against
disturbing plaintiffs' initial forum choice. [3] If the trial judge finds
this balance of private interests in equipoise or near equipoise, he
must then determine whether or not factors of public interest tip the
balance in favor of a trial in [another] forum. [4] If he decides that the
balance favors such a . . . forum, the trial judge must finally ensure
that plaintiffs can reinstate their suit in the alternative forum without
undue inconvenience or prejudice.

Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). In Cortez, the

Florida Supreme Court modified Kinney’s third prong—the public interest

prong—and required Florida courts to consider the public interest factors

irrespective of whether the private interest factors are “in or near equipoise.” See

Cortez, 123 So. 3d at 1093 (holding that “public interest factors should always be

considered as part of [a forum non conveniens] analysis”) (adopting the approach

taken by the United States Court of Appeals for the Eleventh Circuit in SME

Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 n.5

(11th Cir. 2004)); see also Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.

2001) (explaining that while the “private [interest] factors are ‘generally

7
considered more important’ . . . the better rule is to consider both” private and

public interest factors).

The hallmark of a forum non conveniens inquiry is convenience; therefore,

“controlling weight cannot be given to any one factor in the balancing process or

the doctrine would lose much of the flexibility that is its essence.” La Seguridad v.

Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). “The defendant attempting

to dismiss the action on forum non conveniens grounds bears the burden of proof

on each element of the Kinney analysis.” Telemundo Network Grp., LLC v.

Azteca Int’l Corp., 957 So. 2d 705, 709 (Fla. 3d DCA 2007).

We begin our analysis by first considering the trial court’s order in Abeid-

Saba.

A. AVAILABLE AND ADEQUATE ALTERNATIVE FORUM6

6 In four cases, federal district courts have dismissed actions against Carnival
stemming from the Costa Concordia accident based on forum non conveniens
grounds. See Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-CIV, 2012 WL
4477504 (S.D. Fla. Sept. 26, 2012), aff'd, 523 F. App’x 651 (11th Cir. 2013)
(Giglio Sub, an Italian Corporation, and Francesco Onida, an Italian citizen, filed a
class action on behalf of fishermen, property owners, business owners, and wage
earners on Giglio Island, alleging negligence, gross negligence and nuisance);
Perez v. Carnival Corp., No. 12-23194-CIV (S.D. Fla. Feb. 22, 2013) (one-hundred
fifty-four plaintiffs, two of which were residents of the United States, alleged
negligence, negligent training, and negligent retention); Warrick v. Carnival Corp.,
No. 12-61389-CIV, 2013 WL 3333358 (S.D. Fla. Feb. 4, 2013) (five plaintiffs, all
residents of the United States, alleged breach of contract, unjust enrichment,
fraudulent inducement, fraudulent misrepresentation, maritime negligence, gross
negligence, intentional infliction of emotional distress, negligent hiring, negligent
supervising, and negligent retention); Lobaton v. Carnival Corp., No. 12-cv-598
(N.D. Ill. Sept. 11, 2013) (Lobaton, a resident of Peru, sought to bring various tort
8
 While Abeid-Saba does not argue on appeal that Italian civil courts are

unavailable or inadequate, we nonetheless briefly address this prong of the four-

part forum non conveniens inquiry as it was raised before the trial court.

The first prong of the forum non conveniens analysis entails two separate

considerations: whether the alternative forum is available and whether it is

adequate. See Cortez, 123 So. 3d at 1091. “An alternative forum is ‘available’

when that forum can assert jurisdiction over the litigation sought to be transferred.”

Id. at 1091-92. The “chief concern” here is the “ability to perfect service of

process.” Kinney, 674 So. 2d at 90.

In both Abeid-Saba and Scimone II, Carnival stipulated to accept service of

process and agreed to submit to the jurisdiction of Italian courts. Carnival also

agreed to toll the statute of limitations and respect any post-appeal judgments

entered by Italian courts. The Abeid-Saba trial court, therefore, conditioned its

dismissal on Defendants honoring their stipulations and on the Italian court

accepting jurisdiction. We find that the trial court did not abuse its discretion in

finding that an alternative forum is available.

We now turn to the question of whether Italy is an adequate forum. “An

adequate forum need not be a perfect forum.” Satz v. McDonnell Douglas Corp.,

244 F.3d 1279, 1283 (11th Cir. 2001). “An alternative forum is adequate if it

actions individually and as a class representative.).
9
provides for litigation of the subject matter of the dispute and potentially offers

redress for plaintiffs' injuries.” King v. Cessna Aircraft Co., 562 F.3d 1374, 1382

(11th Cir. 2009). An alternate forum is inadequate where the available remedies

are “clearly unsatisfactory” or where there is “no remedy at all.” Satz, 244 F.3d at

1283 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981)). “[S]ome

inconvenience or the unavailability of beneficial litigation procedures similar to

those available in the federal district courts does not render an alternative forum

inadequate.” Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 829 (2d Cir.

1990) (quoting Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 895 (S.D.N.Y.

1981)).

The Abeid-Saba plaintiffs argued that Italian civil courts are inadequate

because the litigation will take longer in Italy and each plaintiff will be required to

obtain individual counsel. After hearing conflicting testimony on these points, the

trial court in Abeid-Saba found that: (i) “a delay of ‘many, many’ years is a legally

insufficient standard on which to judge a foreign forum’s remedy as inadequate in

a highly complex case,” Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111,

1117 (Fla. 4th DCA 1997); and (ii) the lack of a class action procedure does not

render a forum inadequate, Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-CIV,

2012 WL 4477504 (S.D. Fla. Sept. 26, 2012), aff'd, 523 F. App’x 651 (11th Cir.

10
2013). We find the trial court did not abuse its discretion in finding that Italy was

an adequate alternative forum.

B. PRIVATE INTEREST FACTORS

If a trial court determines that an adequate alternative forum exists, it must

then “consider all relevant factors of private interest, weighing in the balance a

strong presumption against disturbing plaintiffs' initial forum choice.” Cortez, 123

So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). Generally, an examination of

the private interests involves four concerns: “access to evidence, access to

witnesses, enforcement of judgments, and the practicalities and expenses

associated with the lawsuit.” 123 So. 3d at 1092.

Abeid-Saba argues that the trial court abused its discretion with regard to

private interest factors by: (i) not affording plaintiffs proper deference regarding

their choice of forum, (ii) improperly accessing the sources of proof, and (iii)

failing to account for witness availability.

1. Presumption in Favor of Plaintiffs’ Choice of Forum

As part of its analysis of the private interest factors, the trial court must

“[weigh] in the balance a strong presumption against disturbing plaintiffs' initial

forum choice.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90).

“This presumption in favor of the plaintiffs' initial forum choice in balancing the

private interests is at its strongest when the plaintiffs are citizens, residents, or

11
corporations of this country.” SME Racks, 382 F.3d at 1101. The Eleventh

Circuit has held that a reviewing court “require[s] positive evidence of unusually

extreme circumstances, and should be thoroughly convinced that material injustice

is manifest before exercising any . . . discretion as may exist to deny a United

States citizen access to the courts of this country.” SME Racks, 382 F.3d at 1101

(quoting La Seguridad, 707 F.2d at 1308 n.7). Accord Cortez, 123 So. 3d at 1096.

“A citizen's forum choice should not be given dispositive weight, however.” Piper

Aircraft Co., 454 U.S. at 256 n.23.

Rather than treating the plaintiffs’ choice of forum as a factor “weighing in

the balance” of the presumption in favor of its choice, Abeid-Saba asks the choice

be analyzed in isolation and be given conclusive and dispositive force. This is

contrary to what the law requires. In analyzing the private interest factors in the

case, the trial court acknowledged the presumption in favor of the five Abeid-Saba

plaintiffs who are U.S. residents. The trial court concluded that, on balance,

litigating in Florida would result in material and manifest injustice to Carnival

because the vast majority of evidence is located in Italy, as are virtually all of the

witnesses.

2. Access to Evidence and Witnesses

When assessing the access to evidence and the availability of witnesses, “the

[trial] court must scrutinize the substance of the dispute . . . to evaluate what proof

12
is required, and determine whether the pieces of evidence cited by the parties are

critical, or even relevant, to the plaintiff's cause of action and to any potential

defenses to the action.” Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988).

“Perhaps the most important ‘private interest’ of the litigants is access to

evidence.” Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003).

Here, the trial court undertook a count-by-count analysis of the twelve

causes of action brought by Abeid-Saba and found that “even given the heightened

presumption in favor of the United States residents’ choice of forum . . .

Defendants have presented positive evidence that litigating in this court would

result in a material, manifest injustice due to the access to relevant evidence and

the comparative cost and difficulty of presenting [in Florida].”

Specifically, as to the causes of action, the trial court found:

 Counts I & II (Maritime Negligence and Gross Negligence): As to the

elements of breach, causation, and damages, the evidence is

“overwhelmingly located abroad,” and “[m]uch of the evidence for all of the

claims will be in Italian.”

 Count III (Negligence—Product Defect): “[A]lleges a violation of the Italian

civil code and seeks damages pursuant to Italian law.”

 Count IV (Professional Negligence): Fincantieri (an Italian corporation with

headquarters in Italy that designed and built the Concordia). “Virtually all

13
 of the evidence” relating to the alleged design flaws of safety and emergency

equipment is located in Italy.

 Counts V, VI, VII, & IX (Intentional Failure to Warn; Intentional Failure to

Abandon Ship; Intentional Failure to Notify Authorities; and Intentional

Infliction of Emotional Distress): “[N]early all of the potential eye

witnesses, except for the five United States resident plaintiffs herein are in

Italy. In addition, the ship and all of the documents collected during the

Italian government’s inquiry into the Accident are in Italy.”

 Count VIII (Corporate Pattern and Practice): To the extent this claim may

require evidence that is located in Florida, Defendants have stipulated to

produce evidence in Italy.

 Count X (Negligent Retention): Captain Schettino is located in Italy, as are

all of the records and documents pertaining to his retention.

 Counts XI & XII (Fraudulent Misrepresentation and Fraudulent

Inducement): Most of the evidence is located in Italy, and to the extent

evidence is located in Florida or elsewhere, Defendants have stipulated to

produce the evidence in Italy.

Abeid-Saba argues that the trial court ignored that fact that much of the

documentary evidence that would be required to litigate this dispute can be

produced in English. Abeid-Saba also claims that under the Italian criminal code,

14
any person injured as a result of the crash will be entitled to access the evidence

used in the criminal proceedings. We find this argument without merit, as it does

not change the fact that the evidence is located in Italy. Additionally, all of the

non-documentary evidence is located in Italy. For example, the wreckage, voyage

data recorder, bridge voice recorder, ship cameras, and the vessel’s electronic

navigation system are all in the custody on Italian authorities.

With respect to the availability of witnesses, Abeid-Saba argues that a

handful of potential defense witnesses and five of the plaintiffs are located in the

United States. The location of these witnesses is, of course, a factor the trial court

must consider; however, the fact that witnesses are here in the United States does

not end the inquiry. Further, the location of the vast majority of other potential

witnesses led the trial court to conclude that Italy is the more convenient forum.

Of the 3206 passengers aboard the Costa Concordia, two-thirds are European

citizens. None of the 1223 crewmembers are United States citizens. Any number

of these passengers and/or crewmembers are potential witnesses.

Just as important as the availability of potential eye witnesses is the

availability of potential non-party witnesses, especially those responsible for safety

inspections and certifications, manufacturing and designing the Ship, and those

who trained the Costa Concordia’s crew. Fincantieri – Cantieri Navali Italiani

15
S.p.A. (the ship’s builder), the Italian Administration, and Italian Classification

Society RINA, S.p.A. (“RINA”) are all located in Italy.

An abuse of discretion occurs “when the judicial action is arbitrary, fanciful,

or unreasonable or where no reasonable man would take the view the trial court

adopted.” Johnson v. State, 47 So. 3d 941, 943 (Fla. 3d DCA 2010). There is

nothing “arbitrary, fanciful, or unreasonable” about the findings and conclusions

contained in the trial court’s well-reasoned order. The trial court in Abeid-Saba

considered each cause of action and determined that the evidence required to

litigate the dispute could be more conveniently obtained in Italy, and that the vast

majority of the witnesses are located in Italy. As such, we find that the trial court

did not abuse its discretion.

C. PUBLIC INTEREST FACTORS

The third step in the forum non conveniens inquiry is to “determine whether

or not factors of public interest tip the balance in favor of a trial in [another]

forum.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So. 2d at 90). While it

was once assumed that trial courts need only consider the public interest factors if

the private interest factors were at or near equipoise, the Florida Supreme Court

modified the rule, holding “public interest factors, including Florida's interest in

the dispute, should always be considered as part of the forum non conveniens

analysis.” Cortez, 123 So. 3d at 1097 (emphasis added). See also Leon, 251 F.3d

16
at 1311 (stating “even though the private factors are ‘generally considered more

important’ than the public factors, the better rule is to consider both factors in all

cases”). The focus of the public interest factors is “whether the case has a general

nexus with the forum sufficient to justify the forum's commitment of judicial time

and resources to it.” Kinney, 674 So. 2d at 92 (quoting Pain v. United Techs.

Corp., 637 F.2d 775, 791 (D.C. Cir. 1980)).

Abeid-Saba claims a nexus between this dispute and Florida because

although the Concordia never sailed out of Florida (or within United States

territorial waters for that matter), other Costa Crociere vessels have. Abeid-Saba

also claims that the safety of cruise ships, generally, is paramount in Florida, and

that Florida has a history of resolving disputes involving cruise ships. Finally,

Abeid-Saba argues that because cruise lines frequently select Florida in their forum

selections clauses, ipso facto, Florida is the most convenient venue. Abeid-Saba’s

generalized arguments are weak. As Carnival points out, this case is not about

other Costa ships, other cruise lines, other cruises, or the cruise line industry in

general. Additionally, the forum-selection clause included on the Costa Concordia

tickets listed Genoa, Italy as the forum for litigation.

Abeid-Saba relies on Cortez for the proposition that Florida is the proper

forum. Cortez, however, is distinguishable. In Cortez, the sole plaintiff was a

United States citizen who sued three Florida defendants for their allegedly

17
negligent sale and marketing of a vacation package. Cortez, 123 So. 3d at 1088.

All three defendants maintained their principal place of business in Florida, id. at

1089, and the allegedly negligent conduct took place in Miami. Id. at 1097.

Defendants, claiming the conduct took place in Mexico, moved for dismissal based

on forum non conveniens. The trial court granted the motion and this Court

affirmed. See Rabie Cortez v. Palace Holdings, S.A. de C.V., 66 So. 3d 959 (Fla.

3d DCA 2011). The Florida Supreme Court quashed this Court’s decision, finding

that all of the alleged negligent action took place in Florida, and “Florida [had an]

interest in hearing disputes involving negligent conduct [that took place in the

State.]” Cortez, 123 So. 3d at 1098.

Unlike Cortez, here, there are fifty-seven plaintiffs, fifty-two of whom are

not residents of the United States. Abeid-Saba’s allegations “center on conduct by

non-Florida Defendants in Italy.”7 Virtually all of the allegedly negligent conduct

took place in Italy.

7 The trial court further found that neither Carnival Corporation nor Costa Cruise
Lines (Florida defendants) were involved in the: “hiring, training, promotion, or
supervision of the Costa Concordia’s crew”; “operation, charter, design, or
construction” of the Ship; “implementation of safety standards”; or “evacuation
procedures.” “The Costa Concordia is owned and operated by Costa Crociere, an
Italian company.” The trial court also found that Joseph Farcus, a Florida-licensed
architect, was the interior designer and did not design the naval architecture. Even
if these factual findings were erroneous, the fact that some of the defendants have
strong ties to Florida is not dispositive. See Cortez, 123 So. 3d at 1097 (“the fact
that the defendants are located in this country, and especially in this state, is one
indication that it would be less burdensome for the defendants to defend suit in this
country than it would be for the plaintiff to litigate in a foreign country”) (citation
18
 Additional facts make clear that this litigation has a close nexus to Italy,

“sufficient to justify [Italy’s] commitment of judicial time and resources to it.”

Kinney, 674 So. 2d at 92. The Concordia is owned and operated by Costa

Crociere, S.p.A., an Italian corporation. Costa Crociere, the Concordia, its crew,

and Captain Schettino were regulated, inspected, and certified by Italian

authorities. The trial court’s order stated “[t]he Costa Concordia’s design was

approved and certified by the Italian Administration and RINA as satisfying Italian

and international standards.” Italian authorities are currently conducting

investigations into the accident. Additionally, four of the other five cases relating

to the accident have been dismissed by courts in the United States on forum non

conveniens grounds. Litigating such similar cases based on the same accident and

involving the same evidence in two different fora would seem to be a tremendous

waste of judicial resources.

Finally, this is not a case is which Abeid-Saba would have to utilize obscure

causes of action that are essentially not cognizable in the Italian courts, nor will

Abeid-Saba’s potential causes of action in Italy amount to no remedy at all. See

Cortez, 123 So. 3d at 1098. As the trial court explained, “Italian law offers

numerous avenues for Plaintiffs to seek and recover damages . . . . Italian

omitted) (internal quotation marks omitted).
19
procedural law offers substantial rights and protections to litigants that ensure trials

are fair, open, and efficient.”

Based on these facts, the trial court in Abeid-Saba concluded that “Florida

does not have a strong interest in this dispute.” Thus, even when accounting for

the strong presumption in favor of Abeid-Saba’s choice of forum, the trial court

found that the public interest factors favor litigation in Italy. We find that the trial

court’s conclusion is reasonable, well-founded, and should not be disturbed.

D. REINSTATEMENT OF CLAIMS IN ITALY

The final prong of a forum non conveniens inquiry requires the trial court to

“ensure that plaintiffs can reinstate their suit in the alternative forum without undue

inconvenience or prejudice.” Cortez, 123 So. 3d at 1091 (quoting Kinney, 674 So.

2d at 90). Abeid-Saba’s argument that refiling in Italy will cause undue

inconvenience is without merit as Carnival stipulated to accept service of process

and agreed to submit to the jurisdiction of Italian courts. Carnival also agreed to

toll the statute of limitations, respect any post-appeal judgments entered by Italian

courts, and make relevant evidence available in Italy. Because these type of

stipulations favor dismissal, we conclude that the trial court in Abeid-Saba did not

abuse its discretion in finding that the plaintiffs can reinstate their suit in the

alternative forum of Italy without undue inconvenience or prejudice. See Cortez,

123 So. 3d at 1094 (the fourth prong of a forum non conveniens inquiry is

20
generally satisfied when “the courts of the alternative forum are genuinely open

and available to provide a convenient remedy and . . . the moving party stipulate[s]

to treat the action in the new forum as though it had been filed in that forum on the

date it was filed in Florida”); Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335 (11th

Cir. 2011) (same).

E. THE SCIMONE II ORDER

We now turn to the trial court’s order in Scimone II. We affirm the trial

court’s order dismissing the non-U.S. plaintiffs, as Appellants do not appeal the

dismissal of the non-U.S. plaintiffs.

We reverse, however, the order regarding the U.S. plaintiffs as the trial court

failed to conduct a proper “private interest” analysis. “A correct ‘private interest’

analysis begins with the elements of the plaintiff’s causes of action. The court

must then consider the necessary evidence required to prove and disprove each

element. Lastly, the court should make a reasoned assessment as to the likely

location of such proof.” Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003); see

also Warrick v. Carnival Corp., No. 12-61389-CIV, 2013 WL 3333358 (S.D. Fla.

Feb. 4, 2013). Because the trial court in Scimone II failed to consider the

necessary evidence required to prove and disprove each element of the plaintiffs’

causes of action, we find that the trial court abused its discretion. Accordingly, we

reverse that portion of the trial court’s ruling in Scimone II.

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IV. CONCLUSION

In conclusion, the trial court’s order in Abeid-Saba is affirmed and the trial

court’s order in Scimone II is affirmed in part and reversed in part. However, as

Abeid-Saba and Scimone II have been consolidated, we must address what the trial

court in Scimone II must do upon remand.

Plaintiffs in both Abeid-Saba and Scimone II are represented by the same

counsel.8 At no point in the proceedings before either the trial court or before this

Court has counsel suggested that the evidence to be presented on the Kinney or

Cortez factors differs in any material way between Abeid-Saba and Scimone II.

Accordingly, rather than require the parties and the trial court to expend further

resources unnecessarily in Scimone II, we remand Scimone II with instructions

that the trial court grant Carnival’s motion to dismiss for forum non conveniens

based on the trial court’s analysis of the Kinney and Cortez factors in the Abeid-

Saba case.

AFFIRMED in Abeid-Saba; AFFIRMED IN PART and REVERSED IN

PART in Scimone II and REMANDED with instructions.

8Indeed, the two cases originated as a single case, but were subsequently split into
two separate actions.
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