John Doe v. Svitzer Americas, LTD. and Seabulk Transport, Inc.

Lipcon, Margulies, Alsina & Winkleman, P.A

August 28, 2012

John Doe v. Svitzer Americas, LTD. and Seabulk Transport, Inc.

Motion to Stay

In this seaman’s personal injury case, the Defendant shipowner and employer have moved to dismiss under the doctrine of forum non conveniens. Foreign ship owners often try to evade the power of U.S. Court’s by claiming they lack sufficient ties with the United States to justify bringing the lawsuit in the chosen forum. When warranted, our experienced maritime attorneys ask the court to refrain from ruling on that issue until the Plaintiff is allowed to obtain evidence from the Defendant as to what contacts it has with the U.S. In this reply, our experienced maritime attorneys argue that the ruling should be stayed and the Plaintiff should be allowed to take discovery on this issue.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 12-21934-CIV-Moreno/Otazo-Reyes
JOHN DOE,
Plaintiff,

v.

SVITZER AMERICAS, LTD. and
SEABULK ISLAND TRANSPORT, INC.,
Defendants.
/______________________________

PLAINTIFFS’ MOTION TO STAY THE CASE PENDING COMPLETION OF LIMITED JURISDICTIONAL DISCOVERY

COMES NOW, the Plaintiff, JOHN DOE, by and through undersigned counsel, hereby moves to stay the case in its entirety, including ruling on all outstanding motions [D.E. 19, 20], pending completion of limited jurisdictional discovery concerning the base of operations of Defendants, SVITZER AMERICAS, LTD. (“Svitzer”) and SEABULK ISLAND TRANSPORT, INC. (“Seabulk”) (at times collectively referred to as “Defendants”). As grounds thereof, the Plaintiff relies in good faith on the following:

The instant matter arises out of the personal injuries suffered by Plaintiff while serving as a crewmember aboard the vessel, the Statia Salute. [D.E. 9-1, 12]. As a result of such injuries, the Plaintiff initiated this case against the vessel’s owner(s) and his employer(s), Seabulk and Svitzer. Both Seabulk and Svitzer waived service of process. [D.E. 26, 28].

The Plaintiff alleges Jones Act Negligence (Count I); Unseaworthiness (Count II); Failure to Provide Maintenance and Cure (Count III); and Failure to Treat (Count IV). [D.E. 9-1]. On August 19, 2012, Seabulk and Svitzer moved to dismiss the Plaintiff’s Second Amended Complaint based, inter alia, on the doctrine of forum non conveniens. [D.E. 19, 20][1]. The crux of the Defendants’ motions to dismiss is based on detailed, factual arguments regarding their contacts (or lack thereof) with the United States, and each Defendant filed affidavits as to same. [D.E. 19-2, 20-2]. Put simply, the Plaintiff cannot fully respond to the factual assertions Defendants raise in their motions without the benefit of limited discovery to ascertain whether Defendants have substantial bases of operations in the United States, which is usually the deciding factor under the forum non conveniens analysis.

I. Forum Non Conveniens Analysis

The law on the doctrine of forum non conveniens is well established and set forth in Membreno v. Costa Crociere S.P.A., 425 F. 3d 932 (11th Cir. 2005); Fantome, S.A. v. Frederick, 58 Fed. Appx. 835 (11th Cir. 2003), and Williams v. Cruise Ships Catering, 299 F. Supp. 2d 1273 (S.D. Fla. 2003). The first determination under the forum non conveniens analysis is whether United States law should apply. Membreno, 347 F. Supp. 2d at 936. Importantly, if United States law applies, the case cannot be dismissed for forum non conveniens and the American court must retain jurisdiction rather than relegate the controversy to a foreign tribunal. Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983).

In deciding what law should apply, the Eleventh Circuit has set forth eight non-exhaustive factors pursuant to the United States Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 583-91, 73 S. Ct. 921, 97 L. Ed. 1254 (1953) and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970). These factors include: 1) the place of the wrongful act; 2) the flag under which the ship sails; 3) the allegiance or domicile of the injured party; 4) the allegiance of the defendant shipowner; 5) the place of the contract between the injured party and the shipowner; 6) the accessibility of a foreign forum; 7) the law of the forum; and 8) the shipowner’s base of operations. Membreno, 425 F.3d at 936 (citing Lauritzen, supra and Rhoditis, supra).

The United States Supreme Court made clear that “each factor, or contact, or group of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act.” Rhoditis, 398 U.S. at 309 (citing Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 441 (2d Cir. 1959)) (emphasis added). Furthermore, the Eleventh Circuit noted in Membreno that “if the defendants have a substantial base of operations in the United States, this factor can alone justify the application of United States law.” Membreno, 425 F.3d at 936.[2]

Herein, factors two and four weigh against foreign law because the subject vessel in which the Plaintiff was injured is registered in the United States – a fact which Defendants both admit to. [D.E. 19, p. 6 and 20, p. 6].[3] In addition, and most importantly, the eighth factor may also weigh against the application of foreign law because, upon information and belief, Defendants have substantial bases of operations in the United States. If the Defendants do have substantial bases of operations in the United States, this factor can alone justify the application of United States law under binding precedent. Therefore, the Plaintiff respectfully submits that discovery is both warranted and necessary prior to the Court’s determination of Defendants’ motions to dismiss on grounds of forum non conveniens.

II. Discovery is Warranted and Necessary

Based on the foregoing, the Plaintiff submits that discovery is warranted and necessary in order to determine whether Defendants have a substantial base of operations in the United States.

It is well-established that a district court has the authority to stay proceedings on its own motion or on motion of the parties. See Landis v. North Am. Water Works and Elec. Co., 299 U.S. 248, 254, (1936) (noting that federal courts have inherent authority to stay proceedings to conserve judicial resources and ensure that each matter is handled efficiently); Ortega Trujillo v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262, 1264 (11th Cir. 2000) (evaluating district court’s sua sponte stay of proceedings); Republic of Venezuela v. Philip Morris Cos., Inc., 1999 WL 33911677, *1 (S.D. Fla. April 28, 1999) (district court’s discretion to stay its proceedings “is derived from and incidental to a court’s inherent power to control the disposition of cases on its docket and ensure a ‘fair and efficient’ adjudication of matters”).

Furthermore, it is well-settled that issues of jurisdiction are proper for discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13 (1978). “Plaintiff is not required to rely exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue where that defendant has failed to answer plaintiff’s interrogatories specifically directed to that issue. To hold otherwise would permit an advantage to a defendant who fails to comply with the rules of discovery.” Blanco v. Carigulf Lines, 632 F.2d 656, 658 (5th Cir. 1980).

Further to this point, Courts in the Southern District routinely grant the requested relief and stay litigation pending completion of limited jurisdictional discovery, including in the following cases dealing with forum non conveniens arguments: Khon v. Libertad 54 Ltd., et al., No. 11-21810-CIV-Cook/Turnoff (S.D. Fla. August 22, 2011) [D.E. 52] (attached hereto as Exhibit “A”) and Vasquez v. YII Shipping Company Ltd., No. 11-60248-CIV-Altonaga/Simonton (S.D. Fla. April 22, 2011) [D.E. 35] (attached hereto as Exhibit “B”).

Plaintiff’s limited jurisdictional discovery will include depositions of the relevant parties’ Corporate Representatives as well as written discovery directed at Defendants’ sales and marketing activity in the United States and stock ownership by an American Corporation and residents (among other factors).[4] Plaintiff anticipates that the limited discovery will reveal facts analogous to those in Rhoditis showing that, at all times material herein, Defendants maintained substantial bases of operations, extensive business, and broad operational contacts with the United States. Without the ability to conduct such discovery, Plaintiff is unable to properly respond to Defendants’ forum non conveniens arguments set forth in their Motions to Dismiss.

As such, Plaintiff respectfully requests the matter be stayed in its entirety and that the parties be given 120 days from the date of the Order to engage in discovery limited to issues relevant to Defendants’ forum non conveniens arguments. No party will be prejudiced by this relief and, in fact, granting said relief is in the interests of judicial economy.

WHEREFORE, based on the foregoing, the Plaintiff respectfully requests this Honorable Court stay the case, including ruling on all outstanding motions [D.E. 19, 20], pending completion of 120 days of limited jurisdictional discovery consistent with the instant motion.

LOCAL RULE 7.1 CERTIFICATE OF GOOD FAITH

The undersigned counsel certifies that he has attempted to confer with counsel for the Defendants by email on August 20, 2012 and August 28, 2012 as to whether Defendants would oppose Plaintiff’s relief sought herein. However, to date, counsel for Defendants have not responded to the undersigned.

Respectfully submitted,

LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By: /s/ Michael A. Winkleman
RICARDO V. ALSINA
Florida Bar No. 883182
MICHAEL A. WINKLEMAN
Florida Bar No. 36719


[1] Concurrent with this motion, the Plaintiff has filed his preliminary response without the benefit of discovery in opposition to Defendants’ motions to dismiss directed at the other arguments Defendants raise, which include alleged improper venue under the Plaintiff’s employment contract, failure to state a claim upon which relief could be granted, and improper service on Seabulk.

[2] Other cases holding that the base of operation factor alone is sufficient to deny dismissal based on forum non conveniens grounds include: Williams v. Cruise ships Catering, 299 F. Supp. 2d 1273 (S.D. Fla. 2003); Mattes v. Nat’l Hellenic American Line, S.A., 427 F. Supp. 619 (S.D.N.Y. 1977) (citing Moncada v. Lamuria Shipping Corp., 491 F. 2d 470 (2d Cir. 1974), cert. denied, 417 U.S. 947 and Antypas v. Cia Maritima San Basilio, S.A., 541 F. 2d 307, 310 (2d Cir. 1976), cert. denied, 429 U.S. 1098 (1977)).

[3] As Defendants explain, Plaintiff was assigned to work aboard the Statia Glory, but that vessel was towing the vessel which Plaintiff was working and was injured on – the Statia Salute registered in the United States.

[4] Williams v. Cruise ships Catering, 299 F. Supp. 2d 1273 (S.D. Fla. 2003) (“Courts considering the base of operations factor have found the following contacts persuasive in determining that a United States base of operations was present: sales and marketing activity in the United States and stock ownership by an American Corporation and residents.”).