I'm sure district court judges never like seeing foreign injury-while-on-vacation cases on their docket, but there may be circumstances where jurisdiction could conceivably lie in the SD FL.
The 11th Circuit in this opinion reminds us that you can't just say all the words in the recitation of relevant forum non factors, you actually have to apply all those factors to the analysis:
The district court mentioned the presumption against disturbing the plaintiffs’ forum choice in its introduction to the order, but failed to mention the presumption at all in its application and balancing of the factors. We have held that a recitation of the law regarding the presumption is not sufficient; this presumption must be integrated into the balancing of the private factors.
I don't know about you, but I still think the case is going to be dismissed.
It's Wednesday, which means we get to enjoy yet another round of wit, wisdom, and random musings from our favorite group of bunker dwellers, so let's get right to this week's apodictic opinions:
Judge Schwartz claims the digestive tract of the clerk's office is responsible for a lost mortgage note:
The plaintiff, designated as the Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, the alleged holder of a note and mortgage, seeks review of a final judgment in favor of the defendants mortgagors borrowers in an action to re-establish the note (which was lost, having disappeared in the bowels of the clerk’s office after being filed in a prior proceeding) and to foreclose the mortgage.
Situation normal all.....
But Judge Shepherd says the clerk's office did not in fact eat the Bank's homework:
The file contained neither the original note nor the original mortgage. Ms. Blackman admitted in her testimony she “[had] no knowledge of the last [entity] who had it or anything else about the original note.” She thought the note was lost by counsel during the course of a prior foreclosure action filed by JP Morgan Chase in January 2003, but upon being shown a copy of the complaint filed in the 2003 foreclosure action, acknowledged that action, like the present one, also contained a claim for re-establishment of lost note. 2, 3 Thus, it cannot be said, as the majority asserts, that the note “disappeared in the bowls [sic] of the clerk’s office after being filed in a prior proceeding.”
Hold on -- did it disappear in the "bowels" or in the "bowls" of the clerk's office, or in someone else's bowels or bowls entirely?
(Finally, a substantive discussion on the blog!)
But wait -- Judge Shepherd is not done:
It is apodictic there can be no cause of action to foreclose a mortgage unless we know where the paper is and that it actually represents something.
Yes!!
(Actually, I think Judge Shepherd has the better argument here).
Former WSVN reporter Marilyn Mitzel gets her age discrimination judgment reversed:
Sunbeam Television Corporation appeals from a final judgment awarding damages on a discrimination claim in favor of Marilyn A. Mitzel, a reporter whose contract Sunbeam opted to terminate. We conclude that the trial court erred when, years into the litigation, it permitted Mitzel to change the theory of her case from one of strictly age discrimination, as reflected in her charge to the FCHR and EEOC1 and in her complaint, to an unpled claim of age-plus-sex discrimination and allowed a trial to proceed on this unpled theory. For that reason, we reverse.
Hurry up and retry it -- no one is getting any younger around here.
Actually, it's a very unfortunate case involving a tourist who died riding a Banana Boat in the Bahamas which Judge Martinez dismissed on forum non grounds.
In a thorough opinion by Middle District of Georgia Judge Hugh Lawson, sitting by designation, the Eleventh Circuit identified a number of serious errors in the district court opinion, including a fundamental one relating to the scope of the relevant inquiry:
The district court considered the Southern District of Florida to be the relevant forum for purposes of the forum non conveniens test. In weighing the private interests, the district court looked only at the contacts between the case and the Southern District. Limiting its consideration to just one judicial district was improper. “[T]he relevant forum for purposes of the federal [forum non conveniens] analysis is the United States as a whole.” Aldana, 578 F.3d at 1293; Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir. 2002) (“[F]ederal courts, in the forum non conveniens context, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the United States as a whole.”) The district court should have analyzed the forum non conveniens question by looking at all contacts between the case and the whole United States. This would include consideration of the plaintiff’s witnesses who are located in Florida, including the eyewitnesses and the damages witnesses, as well as the documentary evidence located in Florida, including documents and records relating to damages. While the district court stated that it was unaware of any witnesses or evidence located in the Southern District of Florida, whether the witnesses and documents are located in the Southern District as opposed to the Middle District is irrelevant in a federal forum non conveniens analysis. It was error for the district court to consider only the contacts that the case had with the Southern District of Florida.
I reviewed the original opinion and don't see any discussion of whether or not the inquiry should be limited to the SD FL or the United States as a whole (and no reference to the controlling Aldana opinion).
Congrats to Gabrielle D'Alemberte for a huge victory and a nice way to end the year (ok, you too Joel but I hope you don't mind if I don't put up your picture).
Next time some defendant wants to argue that the legal system of a South American country is perfectly suitable to handle the lawsuit and therefore the case must be dismissed under a Kinney forum non analysis, just show the court this:
The latest turn of events has Chevron and its lawyers from Jones Day firing back against 30,000 plaintiffs, their lawyers and the Ecuadorean legal system. The case stems from environmental contamination allegedly caused by years of oil drilling in the region by Texaco, which Chevron bought for nearly $35 billion in 2000. Chevron said in a news release Monday that is has provided authorities in the U.S. and Ecuador with video recordings of Judge Juan Núñez and people who identify themselves as representatives of the Ecuadorean government and its ruling political party, Alianza PAIS. The company claims the recordings show an alleged PAIS representative seeking $3 million in bribes in return for handing out “environmental remediation contracts” to two businessmen after a verdict is handed down by Núñez later this year. Of that sum, $1 million would go to Núñez, $1 million to “the presidency” and another $1 million to plaintiffs. The recordings were made in May and June, Chevron said. Two taped meetings allegedly took place in the Quito offices of PAIS, another in Núñez’s chambers in the northern city of Lago Agrio, and the last meeting involving the judge took place in a Quito hotel room. The company posted two hours worth of videotaped conversations covering the four meetings on a Web site dedicated to telling Chevron’s side of the story along with a letter to Ecuador’s prosecutor general. In the three-page letter, Jones Day litigation chief Thomas Cullen Jr. said the recordings have “serious implications for the integrity of the Lago Agrio proceedings, for the reliability of the rule of law, for the criminal liability of the various individuals apparently soliciting bribes and for the past as well as the future role of Judge Núñez in the proceedings.”
Usually the corporate defendant has been sued in an American jurisdiction, and takes pains to point out the laws of another country are just as good as here for adjudicating the claims.
Chevron has spent a significant sum establishing what most parties know when they make this argument -- there's no place like America.
