# Third District Court of Appeal State of Florida
Opinion filed December 9, 2020

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D19

- 2504 Lower Tribunal No. 16

- 29900

________________ 

### Poultry and Industrial Suppliers, Inc. , Appellant,

vs. 

### Incubacol, S.A.S. , Appellee.

An Appeal from a non

- final order from the Circuit Court for Miami

- Dade County, Abby Cynamon , Judge. Homer Bonner Jacobs Ortiz, and Christopher J. King and Antonio M. Hernandez, Jr. , for appellant. Eaton & Wolk PL, and Douglas F. Eaton , for appellee.

Before EMAS, C.J., and GORDO and BOKOR , JJ. EMAS, C.J

.2 INTRODUCTION Poultry and Industrial Suppli ers, Inc. (“PIS” ), the defendant below, appeals an order denying its motion to dismiss the second amended complaint of Incubacol, S.A.S. (“Incubacol”), the plaintiff below, o n the basis of forum non conveniens. For the reasons that follow, we affirm in pa rt and reverse in part. FACTS AND BACKGROUND Incubacol, a Colombia n company that breeds poultry, filed suit in Miami

Dade County against PIS, a Florida corporation, following its distribution of allegedly faulty farm equipment to Incubacol, which caused i t to lose more than
5 , 500 chickens in December 2015. In its original complaint, Incubacol sued PIS, who distributed the alleged faulty poultry system; Chore Time, an Indiana company that manufactured the alleged faulty poultry equipment ; and Pro

- Tech, a No rth Carolina company that manufactured the alarm system installed in the poultry equipment . Incubacol alleged three counts against all three defendants: breach of implied warranty, strict liability for the alleged manufacturing defect, and negligent insp ection.
Pro

- Tech and Chore Time moved to dismiss for lack of personal jurisdiction, and PIS moved to dismiss for forum non conveniens. Before these motions were heard, Incubacol filed suit against Chore Time in Indiana in November 2017, alleging the same claims it had alleged against Chore Time in the Florida action

.3 Thereafter, Incubacol voluntarily dismissed Chore Time and Pro

- Tech from the Florida action , leaving PIS as the remaining defendant in the instant case. In its motion to dismiss based on forum non conveniens, PIS asserted , inter alia, that the poultry equipment was manufactured in North Carolina and Indiana, and shipped directly to Colombia , where it was installed and inspected prior to its
use. PIS contended the case should be litig ated in either Indiana or Col o mbia, but should not be litigated in Florida. In response to the motion to dismiss, Incubacol contended that Miami

- Dade County is not an inconvenient forum. As to the proposed alternative forum of Colombia, Incubacol filed th e affidavit of Col o mbian attorney and law professor , Jaime Alberto Arrubla

- Paucar, who averred , as a Colombian legal expert , 1 that it

was not legally possible for a Colombian court to hear the alleged claims against PIS because th ose courts would have no jurisdiction to hear such claims against producers of goods from foreign countries. PIS filed no evidence to controvert the specific averments of Incubacol’s Colombian law expert, but instead relied upon

1 A ccording to his affidavit, A rrubla

- Paucar is currently a professor of commer c ial obligations, contracts and commercial law at five Colombia n universities, and is the author of a four

- volume legal guidebook “Contratos Mercantiles.” Between 2004 and 2012, h e previously served as a J udge of the C ivil C hamber of the Supreme Court of Justice of Colombia, the highest judicial body in Colomb ia for civil and commercial matters. He served as President of the civil chamber in 2005, Vice

President of the Court in 2009, and President of the Court in 2010.4 general case law that found ( under the facts of th ose cases ) that Colombia was an available and adequate alternative forum. After a hearing, the trial court denied the motion to dismiss for forum non conveniens, finding that Colombia was not an adequate , a vailable forum. However,
t he court did not addres s the adequacy and availability of Indiana as an alternat iv e forum, nor any of the other factors set forth in Kinney Systems, Inc. v. Continental
Insurance Co. , 674 So. 2d 86 (Fla. 1996). We review the trial court’s determinations for an abuse of discretion. Ryder Sys., Inc. v. Davis , 997 So. 2d 1133 (Fla. 3d DCA 2008). We note, however, this standard “has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge’s analysis and whether the appellat e record is sufficient to allow the reviewing court to reach its own conclusions.” Kawasaki Motors Corp.
v. Foster , 899 So. 2d 408, 410 (Fla. 3d DCA 2005) (citations omitted)

. DISCUSSION AND ANALYSIS As the Florida Supreme Court has observ ed: “The common law doctrine of forum non conveniens, which translates to mean ‘inconvenient forum,’ is an equitable, judicially crafted rule designed to allow a court to dismiss, in certain limited circumstances, a l awsuit with little connection to Florida that would be better suited and fairly litigated elsewhere.” Cortez v. Palace Resorts, Inc. , 123 So. 3d 1085, 1090 (Fla. 2013). “The doctrine ‘serves as a brake on the tendency of some5 plaintiffs to shop for the be st jurisdiction in which to bring suit.’” Baranek v. Am

. Optical Corp. , 941 So. 2d 1214, 1215 (Fla. 4th DCA 2006) (quoting Kinney , 674 So. 2d at 87). Colombia as an Adequate Alternative Forum The first step a trial court must take in assessing whether to dismiss claims on the basis of forum non conveniens is to “ascertain whether there is another adequate forum available to hear the case.” Cortez , 123 So. 3d at 1091. See also Fla. R. Civ. P. 1.061(a); Kinney , 674 So. 2d at 90. “An alternative forum is ‘available’ when that forum can assert jurisdiction over the litigation sought to be transferred.”
Cortez , 123 So. 3d at 1091

- 92. “‘A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they ma y not enjoy the same benefits as they might receive in an American court.’” Id. at 1092 (quoting Ciba

- Geigy Ltd. v . Fish Peddler, Inc. , 691 So. 2d 1111, 1115 (Fla. 4th DCA 1997)). Although “a forum may be inadequate if it is grossly inefficient or given t o extreme levels of partiality, . . . [c]ourts have been strict about requiring that defendants demonstrate that the alternative forum offers at least some relief.’” Id. at 1092 (internal quotations omitted). “[D]ismissal would not be appropriate where t he alternative forum does not permit litigation of the subject matter of the dispute.” Id. In th e instant case, PIS asserted there were two alternative fora that would have a more significant connection with the litigation than Florida: Colombia and6 Ind iana. In response to the motion to dismiss, Incubacol filed with the court the affidavit of a Colombia n legal expert, who opined, inter alia , that it would be a legal impossibility to litigate these claims in Colombia because the courts there would not have jurisdiction over this type of dispute. Based on th e expert affidavit, and no competing evidence from PIS to controvert the legal expert’s opinion in this regard , the trial court properly concluded that Colombia is not an adequate and available forum for this litigation, and thus properly denied the motion to dismiss the Florida litigation in favor of that alternative forum

. 2
Indiana as an Adequate Alternative Forum However, the trial court’s order

— and the hearin g transcript

— are devoid of any discussion or analysis on the second alternative forum of Indiana. The trial court made no determination whether Indiana was adequate and available and, if so, whether the remaining Kinney factors weigh in favor of the prese nt forum or Indiana. The trial court’s failure to consider the adequacy and availability of each

2 And if there w as no other adequate available alternative for um to consider , the trial cour t would have been correct in denying dismissal without addressing the remaining Kinney factors. See Bridgestone/Firestone N. Am. Tire, LLC v. Garcia , 991 So. 2d 912, 917 (Fla. 4th DCA 2008) (holding that where the trial court properly concluded that the a lternative forum is unavailable or inadequate, it is unnecessary to consider the remaining Kinney factors because “the availability and adequacy of the alternative forum is a prerequisite to dismissal on forum non conveniens grounds”); Baranek v. Am

. Optical Corp. , 941 So. 2d 1214, 1217 (Fla. 4th DCA 2006) (holding: “The existence of an adequate, available forum is critical to the forum non conveniens analysis; if there is no adequate, alternative forum, the inquiry ends and dismissal is not proper”).7 alternative forum

— here, the failure to consider Indiana

— was an abuse of discretion. See e.g. , Tananta v. Cruise Ships Catering & Servs. Int’l, N.V. , 909 So. 2d 874 (Fla. 3d DCA 2004) (noting court’s consideration of whether an adequate available forum exists is a prerequisite to its determination on a motion to dismiss for forum non conveniens); TRW Auto. U.S. LLC v. Papandopoles , 949 So. 2d 297 (Fla. 4th DCA 2007) (noting trial court erred in failing to consider additional alternative forum raised by the defendant). We decline the invitation to apply Kinney for the first time on appeal. This is
not a case where, in the absence of any meaningful analysis in th e trial court’s order, there is nevertheless a transcript establishing that the trial court engaged in “an adequate analysis of the Kinney factors during the hearing itself . . . .” ABA Capital Mkts

. Corp. v. Provincial de Reaseguros, C.A. , 101 So. 3d 385 , 388 (Fla. 3d DCA 2012). Instead, neither the transcript nor the order evidences a sufficient or meaningful analysis of the Kinney factors as it pertains to Indiana as an adequate alternative forum. See also Johnny’s Pool Super Ctr

. , Inc. v. Foreverpool s Caribbean, LLC , 45 Fla. L. Weekly D2076 at *2 n.1 (Fla. 3d DCA Sept. 2, 2020) ( observing that “ g enerally, an order denying a motion to dismiss for forum non conveniens will be reversed where neither the order nor the hearing transcript establishes that t he trial court engaged in a meaningful analysis of the relevant,8 requisite Kinney factors. See, e.g. , Tome v. Herrera

- Zenil , 273 So. 3d 140 (Fla. 3d DCA 2019); Camperos v. Estrella , 126 So. 3d 351 (Fla. 3d DCA 2013) ” )

. CONCLUSION We therefore affirm the t rial court’s order insofar as it concluded that Colombia was not an adequate , available forum. However, we reverse the balance of the trial court’s order because it failed to conduct a proper and adequate analysis with respect to Indiana. We remand for t he trial court to conduct an adequate forum non conveniens analysis (with respect to Indiana) pursuant to Kinney and Rule 1.061(a) , and for further proceedings consistent with this opinion

. Affirmed in part, reversed in part and remanded with instructions.