Caraffa v. Carnival Corporation
Caraffa filed the underlying action on behalf of her deceased husband alleging that her husband died as a result of prolonged asbestos exposure while working on ships owned and controlled by Carnival.
During the initial filing of the lawsuit, including claims under the Jones Act, general maritime law, unseaworthiness, failure to provide maintenance and cure, and a survival action, Carnival failed to raise a defense regarding forum non conveniens.
The trial court noticed the case for trial five times. Upon transfer to the Asbestos Division, it was required that each case shall have a properly completed Forum Non Conveniens Fact Sheet. The order stated that a non conveniens motion could be heard anytime up to 60 days before trial. Caraffa failed to attach this sheet.
Carnival then filed and served another Motion to Dismiss raising forum non conveniens as a defense. Caraffa moved to strike the motion arguing that it was untimetely.
The trial court ruled in favor of Carnival and Caraffa appealed.
Did the trial court err in hearing the forum non conveniens argument and ruling favor of the defendant/Carnival.
This Court noted that Carnival served its motion to dismiss over 1000 days after initial service of process, well beyond the 60-day time limitation set forth in rule 1.061(g). Carnival also failed to preserve the issue of forum non conveniens and is therefore, estopped from raising the issue at a later juncture.
Waiver is the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. While Carnival included a form non conveniens argument in its first motion to dismiss, Carnival declined to contest jurisdiction shortly thereafter.
In its response to requests for production, Carnival declared that it was not moving to dismiss based on the doctrine of forum non conveniens. Carnival also failed to raise the issue after Caraffa amended her complaint.
Because Carnival initially represented it would move to dismiss based on forum non conveniens and subsequently took the entirely inconsistent position when it later raised the issue, this Court held that Carnival untimely raised the issue and therefore reverse and remanded the trial court’s ruling.
Under Florida Rule of Civil Procedure 1.061(g), a defendant is required to serve its motion to dismiss for forum non conveniens no later than 60 days after service of process on the moving party.
The Florida Supreme Court, in Kinney (674 So.2d), held that courts shall not order dismissal if doing so would actually undermine the interests that forum non conveniens seeks to preserve.
Steve Gordon
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