Herrera-Zenil v. Vasallo Tome
16-2536
| Fla. Dist. Ct. App. | Nov 8, 2017Background
- Plaintiffs Victor Herrera‑Zenil and Canal Mi Cine S.A. de C.V. sued defendants (Carlos Luis Vasallo Tome and corporate entities Mi Cine USA, Cine Nostalgia, Inc., Cine Estelar, Inc.) in Florida state court.
- Defendants moved to dismiss on forum non conveniens grounds; the trial court held a three‑day evidentiary hearing with live testimony.
- Trial court issued a detailed 13‑page order applying the Kinney forum non conveniens factors, finding Mexico an available and adequate alternative forum, private interests in equipoise, public interests favoring Mexico, and that plaintiffs could refile in Mexico without undue prejudice.
- Defendants submitted affidavit and live testimony from a Mexican legal expert and showed parallel litigation in Mexico on the same issues. Plaintiffs did not present expert rebuttal.
- Plaintiffs appealed the dismissal arguing (inter alia) lack of evidence that Mexico was adequate, and that Vasallo waived the forum non conveniens defense; the appellate court reviews for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mexico is an available and adequate alternative forum | Mexico is not shown to be adequate or available; defendants’ proof insufficient | Mexican legal expert testimony and evidence of parallel Mexican litigation show Mexico is adequate/available | Mexico is an available and adequate forum; trial court did not abuse discretion |
| Whether Vasallo waived the forum non conveniens defense | Vasallo’s counsel conceded and thus waived the defense, making dismissal improper | Counsel limited concession to Vasallo personally and preserved the corporations’ challenge | No waiver of corporate defendants’ challenge; trial court properly analyzed Kinney factors for corporations |
| Proper weight to plaintiffs’ choice of forum in private‑interest balancing | Plaintiffs’ Florida choice should get strong deference | Plaintiffs include a foreign resident and a Mexican entity, so less deference is appropriate; private factors (evidence, witnesses, enforcement, cost) balance toward Mexico | Trial court reasonably gave some but not great deference; private interests were in equipoise; no abuse of discretion |
| Sufficiency of evidence and procedure at evidentiary hearing (including deposition transcripts) | Trial court erred by ruling without considering prior deposition transcripts and insufficient evidence on Mexican law | Defendants presented admissible expert affidavit/testimony; plaintiffs failed to contemporaneously object to hearing procedure and presented no rebuttal expert | Trial court’s procedure and evidentiary findings upheld; other issues rejected as without merit |
Key Cases Cited
- Kinney Sys. Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996) (adopted federal forum non conveniens standard and set factors to apply)
- Hilton Int'l Co. v. Carrillo, 971 So. 2d 1001 (Fla. 3d DCA 2008) (discussing Kinney’s adoption and application)
- Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 (Fla. 2013) (private interest factors for forum non conveniens)
- Publicidad Vepaco, C.A. v. Mezerhane, 176 So. 3d 273 (Fla. 3d DCA 2015) (deference to plaintiff’s forum choice, reduced for foreign plaintiffs)
- GLF Constr. Corp. v. Credinform Int’l, S.A., 225 So. 3d 377 (Fla. 3d DCA 2017) (forum non conveniens analysis)
- Argandona v. Lloyd’s Register of Shipping, 656 So. 2d 1311 (Fla. 3d DCA 1995) (foreign plaintiff’s forum choice entitled to less deference)
- Rolls‑Royce, Inc. v. Garcia, 77 So. 3d 855 (Fla. 3d DCA 2012) (standard of appellate review for discretionary rulings)
- Telemundo Network Grp., LLC v. Azteca Intern. Corp., 957 So. 2d 705 (Fla. 3d DCA 2007) (expert proof of alternative forum adequacy may be challenged but does not always require showing specific foreign decisional law)