A couple of weeks ago (February 4th), Carnival won a major victory in defending the personal injury cases arising out of the Costa Concordia disaster when a federal judge in South Florida granted Carnival’s motion to dismiss and ordered that the case must be filed in Italy if the passengers wish to proceed.
In the case of Wilhelmina Warrick v. Carnival Corporation, Judge William P. Dimitrouleas held that he was "thoroughly convinced that dismissal in favor of an Italian forum is proper." The order states that the Court carefully considered the matter and concluded that every single factor weighed in favor of dismissing the passengers’ case from Florida.
You can read the opinion here courtesy of another maritime law firm’s website. I considered the decision to be essentially a final nail in the coffin regarding attempts to hold Carnival or Costa responsible here in U.S. courts.
But on February 15th, the same federal court judge reached an opposite result in two other cases involving 104 Costa cruise passengers claiming compensation arising out of the Concordia capsizing. Denise Abeid-Saba et al., vs. Carnival Corporation (companion case is Scimone v. Carnival Corporation).
These cases were filed in state court here in Miami. Carnival removed the cases to federal court pursuant to the Class Action Fairness Act (CAFA) of 2005 which permits defendants to remove cases which involve monetary relief sought by 100 or more persons. However, there is an exclusion where there are 100 plaintiffs because the defendant seeks to consolidate the cases.
The Court noted that the Abeid-Saba case involved 57 persona and the Simone cases involved 47 persons. Therefore, because neither case involved 100 or more person, there was no basis for removal of the cases from state court.
The Court further held that there was no foreign interest or foreign policies sufficient to create federal court jurisdiction. Judge Dimitrouleas ordered that the cases should be remanded back to state court.
But then the judge went further. He held:
"There is no indication that the Italian government owned or ran the vessel. There is no evidence of the importance of the Costa Concordia or cruising to the Italian economy. Italy has not taken a position in this lawsuit. Put simply, there is a dearth of evidence to show that Italy has a strong foreign interest in this case. This case is about international and U.S. passengers injured on a pleasure cruise run by a private corporation and whether that corporation properly adhered to safety standards or was otherwise negligent. U.S. – Italian relationships will not be rocked if a Florida state court judge awards money damages because and Italian corporation was negligent."
The decision is surprising in so far as Judge Dimitrouleas essentially reached a completely different result in his orders just 11 days apart. The lawyers for the 104 Concordia victims were understandably pleased with the outcome and issued a press release earlier this week.
Judge Dimitrouleas’ strongly worded opinion is hard to reconcile with his earlier opinion that he was "thoroughly convinved" that the cases should be filed in Italy.
But there are two things that all lawyers learn in law school: first, federal courts are courts of limited jurisdiction and in practical terms are always looking for a way to get rid of a civil personal injury case; and secondly, federal judges decide only those issues squarely before the court.
The issue of forum non conveniens (whether the case should be filed in Italy versus the U.S.) was not before Judge Dimitrouleas. The only issue before him was whether the case belonged in federal court (as Carnival wanted) versus in state court (as the plaintiff wanted). The court did not conduct the same forum non conveniens analysis as in the earlier Warrick case. The court reached a decision solely addressing the issue whether federal jurisdiction was properly invoked.
Rather than moving to dismiss the state court cases based on the argument that the only proper location was in Italy, Carnival preferred to try and take the cases into the federal courts. This was a clever technical argument that turned out to be a bad idea. Carnival gambled with a removal argument based on CAFA. It lost and received some bad language from the federal court in the process.
But the Concordia victims can’t count their chickens yet. Carnival will still have an opportunity to raise the forum non conveniens argument in the state court proceedings. Carnival will argue that the language in the judge’s order is just dicta, and is not binding on the state court in any event. The cruise victims will argue that the rationale in the court’s latest ruling is correct and the cases should remain in Florida state court.
I met the lead plaintiff in the Scimone case (photo above right) while attending the Congressional hearings last year. These families have experienced quite an ordeal and deserve a trial in Miami. I hope they are successful in keeping the cases here.