In an opinion released yesterday, the 11th Circuit Court of Appeal affirmed a ruling from a federal district court which held that two lawsuits filed after the Costa Concordia disaster, involving 104 cruise passengers, should remain in state court in Miami.
The cases are Abeid-Saba, et al., v. Carnival Corporation and Scimone, et al. v. Carnival Corporation. The cruise line removed the cases to federal court under the Class Act Fairness Act ("CAFA") which establishes federal jurisdiction of "mass actions."
The district court held that CAFA did not apply because neither case involved more than 100 individuals. The lawyers for the passengers were careful to divide the 104 passengers into two different cases which each had less than 100 individuals involved. You can read our article about the district court’s ruling here: Costa Concordia Litigation: Tactical Blunder By Carnival Opens Door for Lawsuits in Miami.
Yesterday, the circuit court affirmed the lower court. The court held that CAFA permitted pleading cases in this manner and a defendant could not consolidate cases for the purpose of meeting that threshold standard of a mass action with 100 or more individuals.
The federal court decision involves a technical argument and does not address the merits of the case or the issue of forum non conveniens (whether the case should be filed in Italy versus the U.S.). Carnival’s next step is probably to file a motion to dismiss the cases based on the argument that the terms of the Costa passenger tickets require that the lawsuit be filed in Genoa, Italy and that Italy is a more convenient location to pursue the litigation.
There are many hundreds of cases proceeding in Italy. I have written articles stating that the chances of keeping a Costa Concordia lawsuit here in state court in Miami are slim. I hope it turns out that I’m wrong.
July 5 2013 Update: A reader of this blog brought to my attention that Carnival and the other defendants in these cases have already filed motions to dismiss based on the forum selection clause in the passenger tickets (specifying Italy as the location where the cases must be filed) and the doctrine of "forum non conveniens" which is a doctrine where the court determines the most convenient location to hear the lawsuit. There have been no rulings on these motions yet. A recent case from the Florida Supreme Court, Cortez v. Palace Resorts, reinforced the legal proposition that there is a strong presumption in favor of not disturbing the chosen forum of a U.S. litigant. Hopefully, this will assist the passengers in keeping their lawsuits here in state court in Miami.
Photo Credit: Giglio News