                                                                     [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT          FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           APRIL 24, 2012
                                     No. 11-11860
                                                                            JOHN LEY
                               ________________________
                                                                             CLERK

                           D.C. Docket No. 1:08-cv-20662-JAL

BEVERLY MCLANE,
BRAD MCLANE,
her husband,

                                                                        Plaintiffs-Appellants,

                                             versus

LOS SUENOS MARRIOTT OCEAN
AND GOLF RESORT,
a Costa Rican Company, et. al.,

                                                                                 Defendants,

MARINA DE HERRADURA, S.A.,
d.b.a. Los Suenos Marriott Ocean and Golf Resort,
EL SUENO RESORT, a Delaware Limited Liability Company,
d.b.a. Los Suenos Resort and Marina, llllllllllllllllllllllllllllllllllllllll
MARRIOTT INTERNATIONAL, INC., a Foreign Company,
LOS SUENOS RESORT AND MARINA,
GUAPIZUL, S.A.,
a Costa Rican Company,
STAY IN COSTA RICA, S.A.,
a foreign Corporation,
CONSTRUCTORA COPT, LIMITADA,
                                                                     Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (April 24, 2012)

Before HULL and FAY, Circuit Judges, and WALTER,* District Judge.

PER CURIAM:

       Plaintiffs-Appellants Beverly McLane and Brad McLane appeal the district

court’s grant of Defendant-Appellee Marriott International, Inc.’s (“Marriott”)

motion to dismiss on the basis of forum non conveniens.

                                    I. BACKGROUND

       United States citizens Beverly McLane and Brad McLane, her husband,

went on vacation in Costa Rica, where they stayed at the Los Suenos Marriott

Resort (“the Resort”). During their stay, Brad McLane chartered a boat, the Terry

Lee, owned by a Costa Rican boat charter company, Costa Rica Dreams. The

McLanes boarded the Terry Lee, operated by Costa Rican citizens Captain Hugo

Nunez Barrios (“Nunez”) and his mate, from a marina adjacent to the Resort.

During the voyage, the boat hit a large wave and Beverly McLane was thrown to

       *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.

                                               2
the deck, fracturing a vertebrae.

      Beverly McLane brought suit to recover for her injuries, alleging negligent

operation of the boat, and Brad McLane filed a loss of consortium claim. In their

Third Amended Complaint, Plaintiffs named El Sueno Resort, LLC (the developer

of the Resort), Marina De Herradura, S.A. (owner of the Resort), and Marriott

(operator of the Resort) as defendants. The former two parties were dismissed for

lack of personal jurisdiction, and Marriott was dismissed on the basis of forum non

conveniens. In this appeal, the McLanes contest the district court’s grant of

Marriott’s motion to dismiss.

                           II. STANDARD OF REVIEW

      “The forum non conveniens determination is committed to the sound

discretion of the trial court. It may be reversed only when there has been a clear

abuse of discretion; where the court has considered all relevant public and private

interest factors, and where its balancing of these factors is reasonable, its decision

deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257,

102 S. Ct. 252, 266 (1981). The district court abuses its discretion when it “fails to

balance the relevant factors.” La Seguridad v. Transytur Line, 707 F.2d 1304,

1308 (11th Cir. 1983).

                                    III. DISCUSSION


                                           3
      A party moving for dismissal based on forum non conveniens must establish

that (1) there is an alternate forum for the litigation that is both adequate and

available, (2) the balance of private and public factors favors dismissal, and (3) the

plaintiff is able to reinstate his suit in the alternate forum without undue

inconvenience or prejudice. Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th

Cir. 2001). Appellants concede that Costa Rica is an adequate and available

forum, so we will not discuss this issue.

      A district court must consider the following private factors when ruling on a

motion to dismiss for forum non conveniens: the relative ease of access to sources

of proof; the availability of compulsory processes for unwilling witnesses; the cost

of witnesses; the ability to view premises, if such viewing is relevant and

appropriate to the case; and all other practical problems relating to the ease,

expeditiousness, and expense of trial. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1331

(11th Cir. 2011). In its evaluation of these private factors, the district court should

“weigh[] in the balance a strong presumption against disturbing plaintiffs’ initial

forum choice.” Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir.

2009). “This presumption in favor of the plaintiffs’ initial forum choice in

balancing the private interests is at its strongest when the plaintiffs are citizens,

residents, or corporations of this country.” SME Racks, Inc. v. Sistemas Mecanicos


                                            4
Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir. 2004) (citing Leon, 251

F.3d at 1311). This circuit has “long mandated that district courts ‘require positive

evidence of unusually extreme circumstances, and should be thoroughly convinced

that material injustice is manifest before exercising any such discretion as may

exist to deny a United States citizen access to the courts of this country.’” Id.

(quoting La Seguridad, 707 F.2d at 1308 n.7). However, “dismissal should not be

automatically barred when a plaintiff has filed suit in his home forum. As always,

if the balance of conveniences suggests that trial in the chosen forum would be

unnecessarily burdensome for the defendant or the court, dismissal is proper.”

Piper Aircraft Co., 454 U.S. at 255 n.23, 102 S. Ct. at 266.

      The district court’s order identified the private interest factors and examined

each individually, determining whether that factor alone weighed in favor of

dismissal. First, the district court looked at relative ease of access to sources of

proof. Finding that many of the material witnesses needed to resolve issues of

liability resided in Costa Rica, including Captain Nunez and his mate, the district

court determined that this factor weighed in favor of dismissal. Next, the district

court assessed the availability of compulsory processes. Because Captain Nunez

and his mate cannot be compelled to testify in this case, the district court found that

this factor also weighed in favor of dismissal. A view of the premises was not


                                           5
found to be necessary, so that factor was given little weight. Last, the district court

inquired into other practical problems and found that the inability of Marriott to

implead Nunez, his mate, and Costa Rica Dreams as defendants weighed in favor

of a trial in Costa Rica. After conducting this review of the individual private

factors, the district court stated in summary that private interest factors clearly

supported dismissal pursuant to forum non conveniens.1

       We find that the district court adequately identified the private factors

involved in this case but committed an abuse of discretion in its balancing of them.

The district court should have weighed the presumption against disturbing the

plaintiffs’ choice in its balancing of private factors, but there is no indication that it

did so.2 Furthermore, nowhere in the opinion did the district court acknowledge



       1
        In its opinion, the district court properly considered both Plaintiffs’ and Defendants’
arguments weighing in favor of and against dismissal. We have considerably condensed our
summary of the district court’s evaluation to focus on the only part we find to be in error: the
exclusion of the presumption against disturbing plaintiffs’ choice from the district court’s
balancing of private factors.
       2
         The district court mentioned the presumption against disturbing the plaintiffs’ forum
choice in its introduction to the order, but failed to mention the presumption at all in its
application and balancing of the factors. We have held that a recitation of the law regarding the
presumption is not sufficient; this presumption must be integrated into the balancing of the
private factors. See SME Racks, 382 F.3d at 1102 (“While the district court referenced the
presumption in favor of plaintiffs’ choice of forum in the introductory portion of its discussion,
the district court failed to articulate the relevant standards and failed to apply any presumption in
its analysis.”). In SME Racks, we further stated that, “even if we were to assume that the district
court correctly understood the proper legal standard, the district court never mentions the
presumption in favor of the plaintiffs or incorporates the presumption into its calculus once it
actually engages in weighing the private interests.” Id.

                                                  6
that this presumption is at its strongest when plaintiffs are U.S. citizens, and

nowhere did the district court point to “unusually extreme circumstances” or

manifest extreme injustice that would merit denying a U.S. citizen access to U.S.

courts. SME Racks, 382 F.3d at 1101. In this circuit, a district court’s failure to

weigh the presumption in favor of the plaintiffs into the balancing of private

factors has been held to be a clear abuse of its discretion. See id. at 1103.

       Because it is unclear whether the district court, applying the presumption

correctly, would conclude that dismissal is nevertheless appropriate, we reverse

and remand for reconsideration. Given that we are reversing and remanding on the

basis of the district court’s errors in balancing the private factors, we do not need

to continue with our analysis of the public interest factors.3 See Wilson, 590 F.3d

at 1272. Nothing herein suggests the ultimate outcome. Cf. Tazoe, 631 F.3d at

1335 (concluding the district court correctly dismissed a complaint by family

members of a U.S. citizen who died in a plane crash in Brazil despite the added

deference given to the plaintiffs’ choice of forum).

       REVERSED AND REMANDED.




       3
         Public interest factors are to be considered when the balance of private interest factors is
not clear. See La Seguridad, 707 F.2d at 1307.

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