USCA11 Case: 22-11321 Document: 37-1 Date Filed: 12/09/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11321
Non-Argument Calendar
____________________
PAUL FOSHEE,
as temporary administrator of
the estate of Mira Foshee, Paul Foshee,
individually,
SOUME FOSHEE,
individually,
Plaintiffs-Appellants,
versus
WALTER LEE BANKS,
individually,
LA PAZ WATERFALL & PEACE LODGE,
a foreign corporation,
JARDINES DE LA CATARATA,
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2 Opinion of the Court 22-11321
a foreign corporation,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-62699-WPD
____________________
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Appellants Paul and Soume Foshee appeal the district
court’s order dismissing their wrongful death case against Appel-
lees Walter Banks, La Paz Waterfall & Peace Lodge, and Jardines
de la Catarata. The district court held that it did not have personal
jurisdiction over La Paz Waterfall & Peace Lodge and Jardines de
la Catarata (“The Lodge”). The district court dismissed the entire
lawsuit under the doctrine of forum non conveniens.
While on a family trip to Costa Rica, Appellants were walk-
ing along a paved pathway on the Lodge’s premises with their two
children when a dead or diseased tree suddenly fell and struck the
head of their 14-year-old daughter Mira Foshee, resulting in her
death soon afterwards. Appellants alleged that Appellees were
negligent in failing to perform forest studies; in failing to maintain
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22-11321 Opinion of the Court 3
and repair the tree; in creating an unsafe and dangerous condition
at the premises; in failing to cut down the tree; and in failing to
close off the pathway.
I.
We review a district court’s exercise of personal jurisdiction
de novo and its factual findings for clear error. AcryliCon USA,
LLC v. Silikal GmbH, 985 F.3d 1350, 1363 (11th Cir. 2021) “A plain-
tiff seeking the exercise of personal jurisdiction over a nonresident
defendant bears the initial burden of alleging in the complaint suf-
ficient facts to make out a prima facie case of jurisdiction. Where,
as here, the defendant challenges jurisdiction by submitting affida-
vit evidence in support of its position, the burden traditionally
shifts back to the plaintiff to produce evidence supporting jurisdic-
tion.” Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593
F.3d 1249, 1257 (11th Cir. 2010) (internal citations and quotations
omitted).
“A federal court sitting in diversity undertakes a two-step in-
quiry in determining whether personal jurisdiction exists: the exer-
cise of jurisdiction must (1) be appropriate under the state long-arm
statute and (2) not violate the Due Process Clause of the Four-
teenth Amendment to the United States Constitution. When a fed-
eral court uses a state long-arm statute, because the extent of the
statute is governed by state law, the federal court is required to
construe it as would the state’s supreme court.” Id. at 1257-58 (quo-
tations and citations omitted).
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“A court may assert general jurisdiction1 over foreign (sis-
ter-state or foreign-country) corporations, without offending due
process when their affiliations with the State are so continuous and
systematic as to render them essentially at home in the forum
State.” Waite v. All Acquisition Corp., 901 F.3d 1307, 1317 (11th
Cir. 2018) (internal citations and quotations omitted). However,
“only a limited set of affiliations with a forum” will render a de-
fendant at home there. Daimler AG v. Bauman, 571 U.S. 117, 137,
(2014). The corporation’s place of incorporation and its principal
place of business form the “paradigm all-purpose forums.” Id. Be-
yond those two, there would have to be an “exceptional case.” For
example, a defendant’s operations would have to “be so substantial
and of such a nature as to render the corporation at home in that
State.” BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 137 S. Ct. 1549, 1558
(2017) (internal quotation marks omitted). Thus the burden of
proving an exceptional case is heavy and “even ‘substantial, contin-
uous, and systematic’ business is insufficient to make a company
‘at home’ in the state.” Waite, 901 F.3d at 1317-18. We have held
that no exceptional situation existed where the defendant had a
Florida bank account, had two Florida addresses, purchased insur-
ance from Florida companies, filed financial statements with the
Florida Secretary of State, and joined a trade organization based in
1 In the district court and on appeal, Appellants argue only for general juris-
diction, and do not argue for specific jurisdiction. Accordingly, any claim un-
der specific jurisdiction is abandoned.
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22-11321 Opinion of the Court 5
Florida. Carmouche v. Tamborlee Management, Inc., 789 F.3d
1201 (11th Cir. 2015).
Here, the Defendant business, La Paz Waterfall & Peace
Lodge and Jardines de la Catarata, is a Costa Rican corporation
with its principal place of business in Costa Rica. 2 As the district
court recounted, Appellees provided an unrebutted affidavit de-
claring the business had never operated, conducted, engaged in, or
carried on business in Florida or the United States. Further, it so-
licits business worldwide and does not specifically target Florida; it
has no financial or legal relationship with the Lago Mar Resort in
Florida; it does not maintain offices or employ anyone outside of
Costa Rica; it does not have a registered agent or mailing address
in Florida; and it has never entered into contracts, owned a bank
account, owned any assets, incurred or paid any local or state taxes,
held any licenses, or leased any property in Florida. In light of that
unrebutted evidence and the heavy burden imposed by precedent,
Appellants’ argument based on a Florida citizen’s ownership of the
corporation, the perceived Florida reservation system, and the ad-
vertisement that the lodge was a sister corporation to the Florida
Lago Mar Resort do not rise to the level of “substantial, continu-
ous, and systematic business” that would bring the Defendant cor-
poration under the exceptional case. Therefore, the district court
2 As recounted in the district court opinion, although the complaint lists the
two as separate corporate entities, they assert they are one and the Appellants
make no arguments in opposition.
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was correct that the Appellants have not established personal juris-
diction over the Defendant corporation.
II.
We review forum non conveniens dismissals for abuse of
discretion, giving the district court’s decision substantial deference.
Leon v. Millon Air, Inc., 251 F.3d 1305, 1310 (11th Cir. 2001). The
party moving for dismissal must demonstrate that an adequate al-
ternative forum is available, public and private factors weigh in fa-
vor of dismissal, and the plaintiff can reinstate his suit in the alter-
native forum without undue inconvenience or prejudice. Id. The
Appellants here do not challenge the fact that the Costa Rican fo-
rum is available and adequate, nor do they challenge that they can
reinstate their action there. Thus, the only issue before us with
respect to forum non conveniens is the balancing of the private and
public interest factors against the presumption in favor of a United
States citizen’s choice of a United States forum.
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Su-
preme Court outlined the relevant public and private interest fac-
tors. The Court set out this non-exhaustive list of considerations
to be weighed when determining the private interest factors:
Important considerations are the relative ease of ac-
cess 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 premises, if view would be appropriate to
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the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.
There may also be questions as to the enforceability
of a judgment if one is obtained. The court will weigh
relative advantages and obstacles to fair trial. It is of-
ten said that the plaintiff may not, by choice of an in-
convenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the de-
fendant by inflicting upon him expense or trouble not
necessary to his own right to pursue his remedy.
Id. at 508. “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). The “relative ease of access to sources
of proof” is “[p]erhaps the most important private interest of the
litigants.” Id.
The Supreme Court continued with public factors to be con-
sidered:
Administrative difficulties follow for courts when lit-
igation is piled up in congested centers instead of be-
ing handled at its origin. Jury duty is a burden that
ought not to be imposed upon the people of a com-
munity which has no relation to the litigation. In
cases which touch the affairs of many persons, there
is reason for holding the trial in their view and reach
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rather than in remote parts of the country where they
can learn of it by report only. There is a local interest
in having localized controversies decided at home.
There is an appropriateness, too, in having the trial of
a diversity case in a forum that is at home with the
state law that must govern the case, rather than hav-
ing a court in some other forum untangle problems
in conflict of laws, and in law foreign to itself.
330 U.S. at 508-09.
The plaintiff’s choice of forum “should rarely be disturbed”
and defendants must show manifest injustice and provide “positive
evidence of unusually extreme circumstances.” SME Racks, Inc. v.
Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101
(11th Cir. 2004). However, the Supreme Court has cautioned that
“dismissal is not automatically barred when a plaintiff has filed suit
in his home forum.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256
n.23 (1981).
Here, Appellants argue that the district court employed an
incorrect forum—that of Florida rather than the United States—
when contrasting with the forum of Costa Rica. They also argue
that the court unreasonably found the compulsory process factor
favored Costa Rica, and misapplied other private interest factors.
They also argue that the court improperly weighed the public in-
terest factors.
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Although Appellants are correct that the district court
should have used the United States as the forum to contrast with
Costa Rica, see Esfeld v. Costa Corciere, SPA, 289 F.3d 1300, 1303
(11th Cir. 2002), this mistake did not undermine its crucial reason-
ing. And it did not abuse its discretion when it dismissed the action
under the forum non conveniens doctrine. Looking at the ele-
ments of the causes of action that the Appellants brought, the court
correctly assessed the central issue of the case would be the stand-
ard of care for maintaining or inspecting a tree in a rainforest, and
the application of that standard to the facts of this case. Another
issue would be the cause of death. Evidence about those issues is
found almost exclusively in Costa Rica. As the court noted, all acts
of alleged negligence took place in Costa Rica; all witnesses besides
Appellants reside in Costa Rica. All documentary evidence is in
Costa Rica; the post-accident investigation was conducted and the
resulting reports are in Costa Rica; and all relevant medical records
are in Costa Rica. Similarly, only the Appellants and their son are
located in the United States; all of the other witnesses are in Costa
Rica. Although Appellants argue that as eye-witnesses to the acci-
dent, they are the most important witnesses, this is not necessarily
so. There apparently is no dispute but that the tree fell on and in-
jured Mira. And there is little else, if anything, that the Foshees can
add about the state of the tree before the accident or the measures
the Appellees took to ensure the safety of visitors. In sum, the dis-
trict court was correct that the crucial evidence was almost exclu-
sively found in Costa Rica.
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Additionally, the compulsory process factor favors the Costa
Rican forum. With no personal jurisdiction over the Lodge, the
primary defendant in the case is no longer before the Florida dis-
trict court. 3 But, even if there were personal jurisdiction over the
Lodge, there were a significant number of witnesses who were not
employees of the Lodge and over which there would be no com-
pulsory process to testify in Florida.
In both of its orders, the district court included a compre-
hensive discussion of the private interest factors and a balancing of
same against the presumption in favor of a United States plaintiff’s
choice of a United States forum. We cannot say the district court
abused its discretion in concluding that the private interests
weighed strongly in favor of a Costa Rican forum. 4 Similarly, we
conclude that the district court did not abuse its discretion in
weighing the public interest factors. Because the court did not
3 It appears that defendant Banks may merely be the sole shareholder of the
Lodge, which is apparently a corporate entity. A motion to dismiss for failure
to state a claim in the absence of allegations piercing the corporate veil was
filed in the district court, but the district court did not rule on it.
4 To the extent that Appellants argue that the Appellees were required to sub-
mit affidavits setting forth the witnesses’ testimony, that argument is not sup-
ported by the case law. The Supreme Court in Piper stated that “defendants
must provide enough information to enable the District Court to balance the
parties’ interests.” 454 U.S. at 258. The information Appellees submitted al-
lowed the district court to evaluate the potential content of the witnesses’ tes-
timony and evaluate its value.
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abuse its discretion in weighing the private and public interest fac-
tors, it did not abuse its discretion in dismissing the action for fo-
rum non conveniens.
AFFIRMED.5
5 The Lodge’s Motion for Damages and Double Costs is DENIED.
Paul Foshee v. Walter Lee Banks
Combined Opinion