Grp. CG Builders & Contractors v. Cahaba Disaster Recovery, L.L.C.

GROUP CG BUILDERS AND CONTRACTORS and LAURA CABRERA, Plaintiffs,

v. CAHABA DISASTER RECOVERY, L.L.C., DRC EMERGENCY SERVICES, L.L.C.,and STEWART GAMBLE FUZZELL, Jr., Defendants.

CA 11-00729-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Dated: July 5, 2012

REPORT AND RECOMMENDATION

Pending before the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) are the defendants' motion to dismiss or stay proceedings and brief in support (Docs. 13 & 14), filed March 6, 2012; the plaintiffs' opposition (Doc. 26), filed April 4, 2012; the defendants' reply (Doc. 27), filed April 18, 2012; and the defendants' supplemental brief in support (Doc. 29) and the plaintiffs' reply (Doc. 30), both filed in response to the Court's May 25, 2012 Order (Doc. 28) on June 8, 2012 and June 15, 2012, respectively.

For the reasons set forth herein, the undersigned RECOMMENDS that the motion be GRANTED and that this matter be DISMISSED on forum non conveniens grounds subject to the conditions set forth in the conclusion of this recommendation.

Background

The plaintiffs — a citizen of the Dominican Republic, domiciled there, and a corporation incorporated under the laws of, and with its principal place of business in, the Dominican Republic (Doc. 1, ¶ 1) — initiated this suit on December 29, 2011, againstthe defendants: Mr. Fuzzell, an individual domiciled in Alabama, Cahaba Disaster Recovery, L.L.C. ("Cahaba Alabama"), and DRC Emergency Services, L.L.C. ("DRC"), both Alabama limited liability companies (id.), alleging, broadly, breach of a contract for the removal of debris, resulting from the devastating January, 2010 Haitian Earthquake, and the related loss of, or damage to, a track excavator (see generally id., ¶¶ 9-71).

Count Seven of the complaint, titled "Enterprise Entity/Alter Ego/Piercing the Corporate Veil," is not a separate count/cause of action. It, instead, sets forth allegations in support of the plaintiffs' contention that the entities who, on February 5, 2010, actually executed the Contract ("Cahaba Disaster Recovery Corp.") and the Annex ("DRC - Buddy Fuzzell") are alter egos of and/or dominant corporations under the control of the named defendants.¹ The plaintiffs also allege, moreover, that at least one named defendant has been involved in the performance of the contract. Specifically,the plaintiffs allege that the defendants, via wire transfer from Defendant Cahaba Alabama, "made several partial payments to [them] pursuant to the Contract and Annex[.]" (Id., ¶ 79.) Defendant Cahaba Alabama, further, allegedly "offered a partial payment to Plaintiffs to settle the claims [underlying this lawsuit] 'as full and final payment for work performed for Cahaba [Alabama and DRC] in Haiti[.]" (Id., ¶ 80.)

Discussion

A. Forum non conveniens dismissal.

The Court's analysis begins with the presumption that a plaintiff is entitled to the forum he or she selects. That presumption, however, while still applicable, applies with far less force where—like here—foreign plaintiffs choose to litigate in the United States:

[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum . . . . When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) (alterations to original); see also La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (explaining that "[a] plaintiff who chooses a foreign forum substantially undercuts the presumption his choice is reasonable") (emphasis added); compare Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335 (11th Cir. 2011) ("A district court must find 'positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen accessto the courts of this country.'") (quoting SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir. 2004)), with Rolls-Royce Commercial Marine, Inc. v. N.H. Ins. Co., No. 09-61329-CIV, 2010 WL 5067608, at *4 (S.D. Fla. Dec. 7, 2010) ("Here, none of the Rolls-Royce Plaintiffs are Florida corporations, and while two of the Plaintiffs are incorporated elsewhere in the United States, Rolls-Royce plc, which is the only named beneficiary of the policies in dispute, is a UK corporation. Consequently, Rolls-Royce's forum selection is only entitled to limited deference.") (emphases added).

Against this backdrop, the defendants, as proponents of a motion to dismiss on the grounds of forum non conveniens, must establish that "(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice." Tazoe, 631 F.3d at 1330 (quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir. 2001)).

1. Availability of an adequate alternative forum.

The defendants must establish both that trial in the Dominican Republic is available and that such a trial will be adequate. See id. at 1330; cf. Leon, 251 F.3d at 1311 ("Availability and adequacy warrant separate consideration.").

a. Availability.

"An alternative forum is 'available' to the plaintiff when the foreign court can assert jurisdiction over the litigation sought to be transferred. [And, o]rdinarily, the requirement of an available forum will be satisfied when the defendant is amenable toprocess in the other jurisdiction." Tazoe, 631 F.3d at 1330 (internal citation and quotation marks omitted and some alteration to original). Similar to the manufacturers in Tazoe, Cahaba Alabama and DRC stipulate "that they will allow Plaintiffs to reinstate their claims against them[—those claims, filed by the plaintiffs in the Dominican Republic, were dismissed for lack of prosecution—]within 180 days of dismissal of this case without raising any applicable statute of limitations or other defense as a bar to such reinstatement [and] that they will submit to the jurisdiction of the Dominican Republic court and will respect any final judgment of the Dominican Republic court." (Doc. 14 at 12.) Defendant Fuzzell, who was not named in the lawsuits filed in the Dominican Republic, offers a similar stipulation and further stipulates "that he will accept service of process in the Dominican Republic." (Id. at 13.) Compare id., with Tazoe, 631 F.3d at 1330 ("The manufacturers have stipulated that they will make themselves amenable to process in Brazil as a condition of dismissal. Specifically, the manufacturers have stipulated that they will consent to service of process in Brazil; toll any applicable Brazilian statutes of limitation; make relevant witnesses and documents available to a Brazilian civil court; and respect the final judgment of a Brazilian court. These stipulations ensure the availability of Brazil as an alternative forum.") (emphasis added).

In response, the plaintiffs contend that "while Defendants have stipulated that they will permit Group CG to reinstate any claims from the two dismissed lawsuits, Defendants have not established that the Dominican Republic will acknowledge such a stipulation." (Doc. 26 at 19.) The defendants, however, offer the declaration of AlbertoFiallo, an attorney licensed to practice in the Dominican Republic (Doc. 14-2),² in which Mr. Fiallo provides:

There are no obstacles preventing a Dominican Republic court from exercising jurisdiction over American defendants who consent to such jurisdiction. In this case, the contract between Cahaba Disaster Recovery, Corp. and Laura Cabrera was signed on February 5, 2010 and establishes no expiration date. Any lawsuit regarding the breach of said contract could be brought again to the courts of the Dominican Republic, taking into consideration the fact that the applicable statute of limitations is two years from the alleged breach of the contract.

. . .

For the pending claim and the dismissed claims, the Plaintiffs may continue to seek adequate remedy in the Dominican Republic.

(Id., ¶¶ 2, 7.)

The sole case the plaintiffs provide in support of their position—that the defendants have failed to establish that courts in the Dominican Republic will honor the defendants' jurisdictional stipulations—is Mercier v. Sheraton International, Inc., 935 F.2d 419 (1st Cir. 1991). In that case, the First Circuit vacated the judgment of a trial court that relied on the sparse—yet uncontroverted—affidavit of a Turkish law professor and practicing attorney, offered to support the position that the Republic of Turkey was an available and adequate forum. See id. at 424-26; see also Leon, 251 F.3 at 1311 (relying on Mercier for the notion that "[c]ourts have been strict about requiring that defendantsdemonstrate that the alternative forum offers at least some relief"). As to whether the statute of limitations was a jurisdictional bar in Turkey, Judge Louis H. Pollack, sitting by designation, noted that the professor's affidavit "wholly fail[ed] to address th[e] question." Mercier, 935 F.2d at 426 (emphasis added). Writing for the panel, Judge Pollack further noted

that, at the oral argument of this appeal, Sheraton International's counsel expressed a willingness to waive Sheraton International's right to raise in Turkish courts any statute of limitations claim that would not be available should the action go forward in Massachusetts. That concession is insufficient for two reasons. First, it comes too late to have any bearing on whether the district court—not apprised of such a willingness — properly found Turkey to be an

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