Opinion
CASE NO. 02-21771-CIV-JORDAN
August 5, 2003
ORDER GRANTING MOTION FOR RECONSIDERATION
For the reasons set forth below, Waldecy Silva Dias' motion for reconsideration [D.E. 77] of the order [D.E. 67] granting in part and denying in part Mediterranean Shipping Company S.A., Geneva's motion to dismiss and transferring the case [D.E. 18] is GRANTED, and Mediterranean's motion to dismiss the amended complaint [D.E. 69] is GRANTED IN PART AND DENIED IN PART.
Originally, Mr. Dias sued Mediterranean, Olympic Transfer Corp., and Astral Freight Services, Inc. for bailment, negligence, and breach of contract. Mediterranean moved to dismiss the original complaint against it for improper venue or for failure to state a claim for which relief could be granted. Subsequently, both Olympic and Astral filed cross-claims against Mediterranean. Mediterranean also moved to dismiss the cross-claims for lack of venue or for failure to state a claim.
On May 29, 2003, Mr. Dias filed his amended complaint, adding Port of Miami Terminal Operating Company, L.L.C. as a defendant. The majority of the remainder of the complaint remained unchanged. On June 18, 2003, I issued the order granting in part and denying in part Mediterranean's motion to dismiss the original complaint and transferring the case, and an order denying Mediterranean's motion to dismiss the cross-claims. Subsequently, Mediterranean moved to dismiss the amended complaint.
Mr. Dias moves for reconsideration of the order granting in part and denying in part Mediterranean's motion to dismiss and transferring the case on the basis that Mr. Dias will now have to litigate this case in two fora, the two cases could result in inconsistent results, and the order, which dealt with the original complaint, was issued after the original complaint had been amended. In so far as Mr. Dias contends that the order addressing the motion to dismiss the original complaint should not apply to the amended complaint, I disagree. The complaint and the amended complaint, as well as the motion to dismiss the original complaint and the motion to dismiss the amended complaint, are near mirror images. Accordingly, on this basis alone, I do not find that reconsideration is necessary.
Similarly, I do not find sufficient support for Mr. Dias' contention that the forum selection clause should not be enforced where he would be required to pursue his case against different defendants in different forums. Mr. Dias bears a "heavy burden of proof in establishing that litigating in two forums would be so inconvenient as to militate the enforcement of the forum selection clause. See Carnival Cruse Lines, Inc. v. Shute, 499 U.S. 585, 594-95 (1991) (establishing the burden). I do not find that Mr. Dias has met this burden in relation to the inconvenience he alone would suffer. See generally PS Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003) (finding that the financial difficulty of the party opposing enforcement of the forum selection clause alone is insufficient to render the clause unenforceable).
At the same time, in considering the inconvenience to Mr. Dias coupled with the potential inconvenence, or lack thereof, to Mediterranean and the inconvenience to the court, I do reconsider my original order. In M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 15 (1972), the Supreme Court held that a forum selection clause could be avoided where there is a clear showing that enforcement would be unreasonable and unjust. In Stewart Organization, Inc. v. Ricoh Corporation, 487 U.S. 22, 30-31 (1988), the Court went on to expound that courts "must [also] weigh . . . public-interest factors of systemic integrity and fairness" in considering the enforcement of a forum selection clause.
Any potential inconvenience Mediterranean would suffer from having to litigate Mr. Dias' complaint in this forum is militated by the fact that it will have to litigate the cross-claims in this forum regardless. Moreover, as Mr. Dias points out, litigating this particular case in more than one forum could lead to inconsistent results at worst and an unnecessary duplication of judicial effort at best. Accordingly, I find that under the standard established under M/S Bremen and its progeny, the forum selection clause executed between Mr. Dias and Mediterranean should not be enforced in this case.
Accordingly, the order granting in part and denying in part Mediterranean's motion to dismiss the original complaint is adopted and applied to the amended complaint in so far as it dismissed Counts I II for failure to state a claim; Counts I II remain DISMISSED WITHOUT PREJUDICE. As to the motion to dismiss for improper venue, I VACATE my previous order and DENY Mediterranean's motion [D.E. 1 8]. Venue is proper in the Southern District of Florida, and this case remains pending before this court against Mediterranean as to Count III of the amended complaint.
Mr. Dias' motion for reconsideration is GRANTED. Mediterranean's motion to dismiss the amended complaint is GRANTED IN PART AND DENIED IN PART consistent with this order. Mediterranean must file its answer to the amended complaint (Count III) within 21 days from the date of this order.
DONE and ORDERED in chambers in Miami, Florida,