ABA Capital Markets Corp. v. Provincial De Reaseguros C.A.
101 So. 3d 385
| Fla. Dist. Ct. App. | 2012Background
- ABA Capital Markets appeals a non-final order denying its Motion to Dismiss Provincial De Reaseguro’s Amended Complaint on forum non conveniens grounds.
- Provincial, a Venezuelan reinsurance company, entered into a permuta and offshore investments with ABA, a BVI corporation, with custody of bonds transferred to ABA.
- ABA issued confirmations stating ABA purchased two Venezuela bonds; no explicit indication the bonds would be located in Miami, but the letters carried a Miami address.
- Auvert Vetencourt, ABA’s president, sent a certificate asserting ABA held the bonds for Provincial, including a Miami footer address, while bonds were actually held in New York.
- Provincial later sought repayment; ABA allegedly failed to promptly repay and Provincial filed suit in Miami for fraud, civil theft, conversion, fiduciary breach, unjust enrichment, and breach of contract.
- The trial court denied ABA’s initial and amended motions to dismiss for forum non conveniens; the appeal center on whether Kinney factors supported dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequate alternative forum exists? | Provincial argues Venezuela is an adequate forum. | ABA contends Venezuela is an adequate forum and dismissal warranted. | Venezuela is an adequate alternative forum. |
| Private interests—does Florida forum remain appropriate? | Provincial notes Florida ties; witnesses and records in Florida; provincial witnesses travel ok. | ABA argues private interests favor Venezuela due to evidence, witnesses, and location. | Private interests do not favor dismissal; Florida connections weigh against alternate forum. |
| Public interests impact on forum choice? | Not applicable if private interests favor Florida; any nexus supports Florida. | If private near equipoise, public interests would matter; but not here. | Public interest analysis unnecessary due to private-interest outcome; weighs against dismissal. |
| Was the Kinney four-factor analysis properly applied/record adequate to affirm? | Kinney factors acknowledged; burden on ABA to prove all factors. | Trial court sufficiently addressed factors despite lack of explicit written Kinney analysis. | Trial court did not abuse discretion; order affirmed. |
Key Cases Cited
- Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996) (four-factor Kinney framework for forum non conveniens)
- Smith Barney, Inc. v. Potter, 725 So.2d 1223 (Fla.4th DCA 1999) (adequacy of trial-court Kinney review even when not explicit)
- Telemundo Network Grp., LLC v. Azteca Int’l Corp., 957 So.2d 705 (Fla.3d DCA 2007) (burden on movant to prove Kinney elements)
- Wood v. Bluestone, 9 So.3d 671 (Fla.4th DCA 2009) (no per se remand for lack of explicit Kinney factor articulation)
- Rolls-Royce, Inc. v. Garcia, 77 So.3d 855 (Fla.3d DCA 2012) (resident status affects deference to plaintiff's forum choice)