Ever since the tragic incident involving the Costa Concordia, there has been a lot of talk about where any lawsuits would have to be decided. Many lawyers not familiar with maritime law were unaware that in passenger cases, the passenger ticket must be consulted immediately since it contains many time constrains and other limitations, including limiting the place where the lawsuit can be filed. In the case of the Costa Concordia, the ship is operated by the Costa Cruise Line Company out of Italy. The passenger tickets for the Costa Concordia provides for an Italian forum with the applicability of Italian law. This is because the Costa Concordia did not start or end its cruise in a United States port. Otherwise, United States law would govern, and the lawsuit would have to be filed in Broward County Florida, according to the ticket.
Several cases were filed here in Miami, Florida, which have been met with defense motions to dismiss based on forum non conveniens, and improper venue selection due to the passenger ticket requiring suit to be filed in Italy. One of those cases, Scimone v. Carnival Corporation at el, was filed in the Miami-Dade County Circuit Court. Since Carnival was added as a Defendant, and there are other Defendants other than Costa, the Plaintiff’s chose to try to file suit in Miami, Florida. They too were met with a motion to dismiss, but in this particular case the Defendants took a chance and removed the case to the Federal District Court here in the Southern District of Florida. The Plaintiffs moved to remand the case claiming that the Federal Court did not have jurisdiction.
The Federal District judge entered an order granting the motion to remand the case to the State Court. The reason the case was remanded to the State Court is important. Some have believed that the mere fact the Federal judge remanded the case to the State Court was a determination by the Federal judge that Miami is in fact an acceptable forum to hear these cases. However, the Federal judge did not reach that ruling. The Federal judge did not address the Defendants motion to dismiss the case based on form non-conveniens, or the argument that the forum selection clause in the Costa ticket requires suit to be brought in Italy. Instead, the Federal District Court limited its decision to remand the case to a jurisdictional basis. The Defendants had removed the case from the State Court to the Federal Court under the Class Action Fairness Act of 2005. This statutory law allows for the removal of “mass actions”, which is a civil action “in which monetary relief claims of a 100 or more persons are proposed to be tried jointly on the ground that the Plaintiffs’ claims all have the common questions of law or fact.” 28 U.S.C. § 1332 (d)(11)(B)(i)
As for the Class Action Fairness Act being a basis for the Federal Court to have jurisdiction, the Federal Judge ruled that the lawsuit did not have 100 separate different Plaintiffs. In addition, the Plaintiffs did not propose to have all the cases tried jointly. Therefore, this statue did not apply and did not provide a valid basis to remove the case to the Federal Court.
An interesting point about the decision that the CAFA did not provide a basis for removal is that the court had to determine whether the Plaintiffs had engaged in “artful pleading” to deliberately avoid Federal jurisdiction, and if so, whether that was a basis to apply the CAFA in this particular case. The court noted a diversion of opinion among the District Courts on whether artful pleading can avoid the CAFA Federal jurisdiction. This particular judge agreed with the courts that concluded Plaintiffs may skirt the removal under the CAFA and mass actions by artful pleading. Thus, removal was not appropriate under the CAFA.
The other basis the Defendant’s argued to support Federal Court Jurisdiction in this removal case was 28 U.S.C. § 1331. This involves a “federal question” issue. They argued that federal questions involving foreign policy was enough to create federal subject matter jurisdiction in this case. Since the court concluded it was not a case involving the federal government of Italy, and there was insufficient interests of Italy to support finding subject matter jurisdiction based on federal question jurisdiction due to foreign relations, this basis of jurisdiction was also rejected.
The court concluded there was insufficient foreign interests to give the Federal Court subject matter jurisdiction. This decision is interesting, and resulted in very good language for the Plaintiffs. In determining the foreign interests were insufficient, this federal judge found that Italy did not have a strong federal interest in the case. It concluded the case was about international and United States passengers who were injured on a cruise ship that was operated by Costa, a private company, and whether they properly adhered to safety standards or committed negligent acts. The courts concluded that “U.S. – Italian relationships will not be rocked if a Florida State Court judge awards money damages because an Italian Corporation was negligent.”
Accordingly, the Federal District judge rejected both arguments by the Defendants as to the subject matter jurisdiction of the Federal Court, supported. Accordingly, an order to remand the case to the state court was entered by the District Court judge. Plaintiff’s are back in State Court.
It still remains to be seen what the State Court will do with the motions to dismiss the case on the basis of forum non conveniens and the forum selection clause in the passenger tickets. Defendants must be very careful when removing a case to Federal Court not to waive these arguments by the filing of notice of removal before presenting these arguments to the court. Sometimes a strategic choice can backfire. Only time will tell if that will happen in this particular case.
Our maritime firm is based in Miami, Florida, the cruise ship capital of the world. We represent passengers and crewmembers harmed at sea, and handle all type of boating accidents.