Rose Bud Pinder v. Andrea Moscetti, et al


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[B]Case Name: [/B][I]Rose Bud Pinder v Andrea Moscetti, et al.
[/I][B]Date Decided: [/B]July 10, 2008
[B]Court: [/B]U.S.D.C. Southern District of Florida
[B]Judge: [/B]Judge Jordan
[B]Citation: [/B]*2009 WL 2497391 (S.D.Fla.)[B]Background:
[/B]Ms. Pinder, (“Pinder”), plaintiff, filed a wrongful death action under the Death on the High Seas Act (“DOSHA”) and alleged that Mr. Moscetti’s negligence cause the boat accident that killed her husband.

On August 8, 2007, Mr. Moscetti was navigating his boat in the territorial waters of the Bahamas when the boat struck Mr. Pinder’s 18 foot skiff. As a result of the accident, Mr. Pinder died.

Pinder brought this action in the Southern District of Florida and defendants’ moved to dismiss for [I]forum non conveniens[/I].

[B]Issue: [/B]
Did the Court grant the defendants’ motion to dismiss?

[B]Held:[/B]
The defendants contended that the action should be dismissed and sent to the Bahamas because the accident occurred in Bahamian waters, the majority of the witnesses reside in the Bahamas, Bahamian authorities investigated the accident, and Bahamian law will determine ultimate liability.

First, this Court determined that Congress, under the DOSHA, did not mandate venue in the United States.

The Court examined the following factors, set forth in [I]Lauren v. Larsen, [/I]347 U.S. 571, 579 (1953) which examine (1) Place of wrongful act (2) the flag under which the ship sails, (3) Allegiance or domicile of the injured party (4) The allegiance of the defendant shipowner (5) the place of the contract between the parties, (6) accessibility of a foreign forum (7) law of the forum and (8) shipowner’s base of operation.

The Court found that while not all the factors are applicable in the case and that they leaned in the defendants’ favor. The Court found that Pinder could state a claim under the DOSHA because it applies to accidents in the territorial waters of foreign countries. Furthermore, DOSHA does not require venue in the United States.

Because the choice of law, the DOSHA, is not dispositive the Court hen examined the convenience factors.

[U]1. Available and Adequate Alternative Forum[/U]

The Court found that the Bahamas is both an available and adequate alternative forum. A forum is available if the foreign court can assert jdx over the litigation sought to be transferred. A forum is adequate if it is capable of providing some relief for plaintiff’s claims. The Court held that the Bahamas was an available and adequate alternative forum because it offers relief and both parties have consented to personal jurisdiction.

[U]2. Private Interests[/U]

The Court next examined the private interests, such as availability of witnesses, cost of obtaining willing witnesses, and all other practical problems making trial of a case easy, expeditious, and inexpensive.

While there is a strong presumption that the plaintiff has chosen a convenient forum, the Court found that the Bahamas served the private interests of the parties. The witnesses, and cause of action are all in the Bahamas making it more convenient to litigate their and not Florida.

[U]3. Public Interest Factors[/U]

Third, public interest factors, including a sovereign’s interest in deciding the dispute, the administrative burdens posed by trial, and need to apply foreign law all weigh in favor of litigating in the Bahamas.

The accident occurred in Bahamas’ waters and allegedly caused the death of a Bahamian native. The Bahamas have a strong interest in repairing its image as a tourist destination by overseeing this claim effectively also. Accordingly this Court found the public interest factors weighed in favor of defedants’.

[U]4. Undue Inconvenience and Prejudice to Ms. Pinder[/U]

The Court, ensured that Pinder could reinstate her action by attaching conditions to the dismissal. (1) The defendant must submit to service of process and jdx in the Bahamas for all relevant purposes. (2) They must waive any statute of limitations defense to any action filed by Pinder in the Bahamas within one year of the ruling and (3) the defendants must provide access to all evidence, including witnesses.

The Court granted defendants’ motion to dismiss without prejudice, allowing Pinder to reassert her action in the Bahamas.

[B]Comment:
Sometimes, while brining an action under a federal statute, the statute will govern the choice of law. If the DOSHA had required a specific choice of law, such as the law of the plaintiff’s or decedent’s domicile, than most likely it would have been proper to bring the action in Florida.[/B]

[B]When the choice of law does not determine the proper forum, the court will weigh private and public factors, on a case by case basis, to rule on a motion to dismiss for forum non conveniens. [/B]

[B]Steve Gordon
http://www.offshoreinjuries.com[/B]

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