Two lawsuits over last year’s Costa Concordia grounding off Italy that defendant Carnival Corp. sent on a hopeful cruise into federal court have been shipped back to state jurisdiction.
The order came just 11 days after the same federal judge decided Italy was the proper place for a Massachusetts family to pursue a claim against the Miami-based company.
Carnival tried to use the Class Action Fairness Act to transfer the cases of Denise Abeid-Saba and 56 other plaintiffs and Geoffrey Scimone and 46 others from Florida to federal jurisdiction.
But U.S. District Judge William Dimitrouleas in Fort Lauderdale remanded the cases to Miami-Dade Circuit Court, noting neither met the 100-person threshold of class action law.
"The court has no doubt that the plaintiffs structured their suits purposefully in order to evade federal jurisdiction," Dimitrouleas wrote in his Feb. 15 order.
But he agreed with decisions from the U.S. Court for the Seventh and Ninth circuits that plaintiffs "can skirt removal under the CAFA in mass actions by artful pleadings."
Carnival’s request that Dimitrouleas consider federal common law regarding foreign policy also was in vain.
"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," he wrote. "U.S.-Italian relationships will not be rocked if a Florida state court judge awards money damages because an Italian corporation was negligent."
Hogan Lovells partner Alvin Lindsay in Miami, who represents Carnival, did not return a call for comment by deadline.
Plaintiffs attorney Louise Caro, managing partner at the Miami office of Napoli Bern Ripka Shkolnik, also could not be reached, but senior partner Marc Bern in New York celebrated the ruling.
"We are thrilled that we can now turn our attention to litigating the facts of this case before a Florida state court where the plaintiffs can expect their interests will be protected rather than in Italy where the courts are notoriously slow and cases for mass torts such as shipwrecks have taken as long as 30 years without final decisions," Bern said.
His firm seeks at least $2 million in compensation per passenger plus $590 million in punitive damages.
Maritime lawyer Jim Walker of Walker & O’Neill in South Miami, who is not involved in the cases, called Carnival’s CAFA maneuver a "tactical blunder" in his online newsletter.
"This was a clever technical argument that turned out to be a bad idea," he wrote. The cruise company lost its gamble "and received some bad language from the federal court in the process."
Dimitrouleas’ conclusions were the opposite of his Feb. 4 decision when he wrote he was "thoroughly convinced that dismissal in favor of an Italian forum is proper."
In that case, Carnival asked the judge to conduct a forum non conveniens analysis.
Siblings Adrian, Amanda and Brian Warrick claim they were injured in the capsizing, which left 32 passengers and crew members dead. Their parents, Wilhelmina and Ceilito Warrick, sued because they were not allowed to board the ship.
Their tickets stated all disputes would be resolved in Italian courts under Italian law. As U.S. citizens, the Warricks asked that their suit be heard in federal court in Florida.
But Dimitrouleas found the ship and other physical evidence are located in Italy, as are many of the crew members who might be called to testify. Furthermore, he said much of the evidence will be in Italian and would require translation if heard in the U.S. District Court.
Walker, who has referred potential Concordia clients to a colleague in Italy, considered the Warrick decision to be the "final nail in the coffin regarding attempts to hold Carnival or Costa responsible here in U.S. courts." But he wrote the plaintiffs in the Abeid-Saba and Scimone cases "can’t count their chickens yet," noting Carnival can still raise the forum argument in Miami-Dade Circuit Court.
"We think that is probably an erroneous decision by the federal court, and we’re hopeful that the state courts will allow us to litigate," Bern said.
Circuit Judge Norma Lindsay will preside over the Abeid-Saba lawsuit. The Scimone complaint was assigned to Circuit Judge Spencer Eig.