                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0043

                        Michael J. Paulucci and Cynthia J. Selton,
                    on behalf of the Jeno F. Paulucci Revocable Trust
                           and the Estate of Jeno F. Paulucci,
                                        Appellants,

                                            vs.

                                      Larry Nelson,
                                      Respondent,

                                       Jill Molitor,
                                       Respondent.

                                  Filed August 8, 2016
                                        Affirmed
                                     Johnson, Judge

                             St. Louis County District Court
                              File No. 69DU-CV-15-2157

Mark J. Briol, Scott A. Benson, Briol & Associates, PLLC, Minneapolis, Minnesota (for
appellants)

Robert C. Pearson, Richard J. Leighton, Jacob K. Stonesifer, Johnson, Killen & Seiler P.A.,
Duluth, Minnesota (for respondent Larry Nelson)

John D. Kelly, Scott A. Witty, Hanft Fride, P.A., Duluth, Minnesota (for respondent Jill
Molitor)

         Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

JOHNSON, Judge

       This lawsuit was brought by two Florida residents who are beneficiaries of a trust.

They sued a Florida resident and a Minnesota resident for actions that allegedly diminished

the value of the trust. The district court dismissed the case without prejudice on the grounds

that the plaintiffs do not have standing to assert their claims and that a Florida court would

be a more convenient forum. We conclude that the district court did not err by reasoning

that a Florida court would be a more convenient forum. Therefore, we affirm.

                                           FACTS

       Jeno F. Paulucci was an entrepreneur who was born and raised in northeastern

Minnesota. He later became a resident of Florida. He died in Duluth in November 2011

at the age of 93.

       During his lifetime, Jeno established the Jeno F. Paulucci Revocable Trust

(hereinafter the Jeno trust). At the time of his death, the Jeno trust owned approximately

40 percent of Bellisio Foods, Inc., a Minnesota corporation. In addition, Jeno’s will

provided that, upon his death, the residue of his estate would pour over into the Jeno trust.

       In October 2011, approximately one month before his death, Jeno appointed Larry

Nelson and David Simmons, both of whom are Florida residents, to replace two Minnesota-

based co-trustees. Nelson was a director and officer of The Jeno and Lois Paulucci Family

Foundation, a Florida non-profit corporation, which is one of the beneficiaries of the Jeno

Trust. Nelson also is the personal representative of Jeno’s estate. Simmons is a lawyer

who had provided legal services to Jeno.


                                              2
       This action was commenced by Michael J. Paulucci and Cynthia J. Selton on behalf

of Jeno’s estate and the Jeno trust. Michael and Cynthia are children of Jeno and among

the beneficiaries of the Jeno trust. Both Michael and Cynthia are Florida residents.

Michael and Cynthia sued Nelson and Jill Molitor, a Minnesota resident who was

employed as an administrative assistant to Jeno at the time of his death.

       The complaint alleges two instances of tortious conduct by Nelson and Molitor.

First, the complaint alleges that, on October 6, 2011, while Jeno was hospitalized and

incapacitated, Nelson and Molitor wrongfully obtained for Nelson a $500,000 increase in

a bonus that Bellisio Foods was contractually obligated to pay to him if Bellisio Foods was

sold. The complaint alleges that Molitor signed Jeno’s name on a document that authorized

the increase in the bonus from $500,000 to $1,000,000 and that Nelson later received a

bonus that included the additional $500,000.

       Second, the complaint alleges that, on November 23, 2011, one day before Jeno’s

death and while he was incapacitated, Nelson and Molitor wrongfully transferred $100,000

from Jeno to Molitor.     Specifically, the complaint alleges that Nelson and Molitor

established a bank account that was titled in Jeno’s name with a payable-on-death feature

for the benefit of Molitor, and that Molitor transferred $100,000 from one of Jeno’s pre-

existing bank accounts to the new bank account. The complaint further alleges that Molitor

later closed the account after withdrawing the account balance, $100,102.48.            The

complaint alleges three causes of action: (1) a violation of the Minnesota Vulnerable Adults

Act, see Minn. Stat. § 626.557, subd. 20 (2014), (2) conspiracy, and (3) conversion. The

complaint seeks compensatory damages in favor of Jeno’s estate and the Jeno trust.


                                             3
         In September 2015, Nelson and Molitor filed separate motions to dismiss. Each

argued that the case should be dismissed without prejudice on the ground that Michael and

Cynthia do not have standing to sue on behalf of the trust and on the ground that a Florida

court would be a more convenient forum. In support of his motion, Nelson submitted

evidence that multiple lawsuits were pending in Florida state courts that relate to his actions

as a co-trustee of the Jeno trust, as a co-trustee of another Paulucci family trust, or as the

personal representative of Jeno’s estate. In support of her motion, Molitor submitted

evidence that at least ten cases were pending in Florida state courts that relate to Jeno’s

physical or mental capacity near the end of his life. In their response to the motions,

Michael and Cynthia submitted additional documents concerning the cases pending in

Florida in an attempt to demonstrate that those cases are dissimilar to this case.

         In November 2015, the district court granted Nelson’s and Molitor’s motions to

dismiss, for two reasons. First, the district court reasoned that Michael and Cynthia do not

have standing to assert their claims because they did not sue both co-trustees of the Jeno

trust.   Second, the district court reasoned that, “under the Doctrine of Forum Non

Conveniens, this case should be dismissed so that the claims may be brought in a more

appropriate venue,” i.e., Florida. Michael and Cynthia appeal.

                                      DECISION

         Michael and Cynthia argue that the district court erred by granting the motions to

dismiss on the grounds that they do not have standing and that Florida would be a more

convenient forum. We begin by considering the district court’s reasoning that Florida

would be a more convenient forum.


                                              4
       “The doctrine of forum non conveniens allows a district court with jurisdiction over

the subject matter and the parties discretion to decline jurisdiction over a cause of action

when another forum would be more convenient for the parties, the witnesses, and the

court.” Paulownia Plantations de Panama Corp. v. Rajamannan, 793 N.W.2d 128, 133

(Minn. 2009). “The first step in a forum non conveniens analysis is for the district court to

establish the existence of an available and adequate alternative forum.” Id. Such a forum

is available if “the foreign court has jurisdiction over the case and the parties.” Id. at 134.

In this case, it is undisputed that Florida is an available and adequate alternative forum.

       If an adequate alternative forum is available, a district court must “weigh the private

and public interest factors of both forums.” Id. at 137. The private-interest factors are:

              (1) the relative ease of access to sources of proof; (2) availability
              of compulsory process for attendance of unwilling, and the cost
              of obtaining attendance of willing, witnesses; (3) possibility of
              view of premises, if view would be appropriate to the action; and
              (4) all other practical problems that make trial of a case easy,
              expeditious, and inexpensive.

Id. (quotation omitted). The public-interest factors are:

              (1) the administrative difficulties flowing from court congestion;
              (2) the local interest in having localized controversies decided at
              home; (3) the interest in having the trial of a diversity case in a
              forum that is familiar with the law that must govern the action;
              (4) the avoidance of unnecessary problems in conflict of laws,
              or in the application of foreign law; and (5) the unfairness of
              burdening citizens in an unrelated forum with jury duty.

Id. (quotation omitted). This court applies an abuse-of-discretion standard of review to a

district court’s forum non conveniens ruling. Id. at 133. A district court abuses its




                                               5
discretion in making such a ruling if it “makes an erroneous legal conclusion or a clearly

erroneous factual conclusion.” Id.

       In this case, the district court began its analysis of Nelson’s and Molitor’s forum

non conveniens arguments by stating:

                      The parties argue back and forth whether Florida is the
              better location for this lawsuit. Plaintiffs point out that this case
              concerns a claim under the Minnesota Vulnerable Adults Act,
              which is unlike any of the claims being pursued in Florida. (The
              Court would note that this claim is only Count 1 of the
              complaint, with Counts II and III being fully in the mix.)
              Defendants counter that the question of whether there was a
              violation of the Vulnerable Adults Act goes directly to whether
              Jeno Paulucci had capacity to increase Mr. Nelson’s bonus or
              arrange for the POD account for Ms. Molitor at the times that
              those actions were taken. The importance of that is that capacity
              is very much the subject of many of the Florida matters.

                      The Court has not delved into the Florida lawsuits in any
              detail, but it seems clear that this case belongs among them. To
              the extent that either the $500,000 bonus or the $100,000 POD
              account were transferred through dubious means, the cases
              involving the estate and the trust in Florida are the logical places
              to resolve those matters.

The district court then expressly considered the four private-interest factors. The district

court determined that the third factor is neutral and that the first, second, and fourth factors

favor a Florida venue. With respect to the fourth factor, the district court stated, “with

everything else going on down in Florida, it makes no sense to this Court to have one small

part taking place in Duluth, Minnesota.”

       The district court appropriately emphasized the existence of numerous related cases

that are pending in the Florida state courts. In the particular circumstances of this case, the

existence of those cases predominates over other relevant facts. Michael’s and Cynthia’s


                                               6
brief identifies at least 16 related cases pending in the Florida state courts. Michael or

Cynthia are parties to at least 13 of those cases, and Nelson is a party to at least 6 of those

cases. Michael and Cynthia acknowledge that the issues raised by their complaint in this

case overlap to some extent with the issues raised by at least one of the Florida cases.

       The pendency of multiple related cases gives rise to a number of practical case-

management issues, which easily could create difficulties for both pre-trial proceedings

and trial if this case were to remain in Minnesota. For example, Nelson might be forced to

defend against the same claims or similar claims, or to attend to the same issues or similar

issues, in multiple jurisdictions. Also, both Nelson and Molitor would be subject to

discovery in multiple jurisdictions. In addition, the pendency of related claims in multiple

jurisdictions would preclude the possibility of consolidating related cases or managing

them in an efficient manner. Furthermore, trial-court judges in two different states might

find it necessary to monitor the progress of a case or cases in another state or to coordinate

matters of scheduling.

       Furthermore, the district court’s reasoning is consistent with prior opinions in which

the pendency of claims in another forum was deemed a valid reason for a Minnesota court

to refrain from exercising its jurisdiction on forum non conveniens grounds. See In re

Matter of Cary, 313 N.W.2d 625, 627-28 (Minn. 1981) (affirming district court’s

termination of jurisdiction over trust because District of Columbia court had concurrent

jurisdiction over trustee’s and beneficiary’s requests for relief); Behm v. John Nuveen &

Co., 555 N.W.2d 301, 308-09 (Minn. App. 1996) (affirming dismissal because appellants

had commenced similar claims against same defendants in federal court in Illinois). The


                                              7
district court’s reasoning also is consistent with a prior opinion of this court in which we

concluded, on forum non conveniens grounds, that the St. Louis County District Court did

not err by dismissing without prejudice a petition in which Michael and Cynthia sought to

remove Nelson and Simmons as co-trustees of the Jeno trust on the ground that Jeno did

not have capacity to amend the trust instrument on October 8, 2011. See In re Jeno F.

Paulucci Revocable Trust, No. A12-1545, 2013 WL 1859074, at *1-9 (Minn. App. May 6,

2013).

         Michael and Cynthia argue that the district court erred in its forum non conveniens

analysis in three ways.

                                             A.

         Michael and Cynthia first argue that the district court erred by not applying a

presumption in favor of their choice of forum. “Generally, a strong presumption exists in

favor of the plaintiff’s choice of forum . . . .” Paulownia, 793 N.W.2d at 137. But the

presumption is not determinative because it “may be rebutted if the defendants can show

that public and private interest factors favor another forum.” C.H. Robinson Worldwide,

Inc. v. FLS Transp., Inc., 772 N.W.2d 528, 539 (Minn. App. 2009) (citing Bergquist v.

Medtronic, Inc., 379 N.W.2d 508, 511 (Minn. 1986)). In this case, the district court

considered various factors and concluded that they favored the Florida forum, thereby

implying that the presumption was rebutted. Michael and Cynthia do not cite any caselaw

for the proposition that the absence of any mention of the presumption is, by itself,

reversible error. Thus, the district court did not err simply because its conclusion is

contrary to the presumption that the plaintiff’s choice of forum generally is favored.


                                              8
                                              B.

       Michael and Cynthia next argue that the district court erred by misapplying the

private-interest factors. They contend that the first, second, and fourth private-interest

factors favor the Minnesota forum.

       The district court found that the first private-interest factor favors the Florida forum

on the grounds that there is not greater “ease of access to sources of proof” in Minnesota

and that, “with all of the matters concerning Jeno Paulucci’s capacity going on in Florida,

it would be likely that intensive monitoring would be needed to ensure that this case stayed

current with what was going on in Florida.” Michael and Cynthia contend that the district

court erred because the evidence is relatively limited and arises solely from Minnesota.

The evidence to which Michael and Cynthia refer consists of documents, the location of

which is not significant in “the modern electronic age.” See In re Jeno F. Paulucci

Revocable Trust, 2013 WL 1859074, at *5 (quotation omitted). Michael and Cynthia also

contend that the district court’s reference to the pending Florida cases is irrelevant to the

first private-interest factor. We tend to agree with that contention. It appears that the first

private-interest factor favors neither the Minnesota forum nor the Florida forum. Cf. id.

(noting Nelson’s concession that first private-interest factor favors neither forum).

       The district court found that the second private-interest factor favors the Florida

forum on the grounds that, “with the exception of Ms. Molitor, most of the potential

witnesses are in or around Florida” and that “it would be extremely inconvenient and

expensive to get witnesses to Minnesota.” Michael and Cynthia contend that the district

court erred because “the key witnesses . . . are, with the exception of Nelson, believed to


                                              9
reside in the Duluth area.” They refer specifically to Molitor, the bank employee who was

involved in opening the payable-on-death account, and the medical personnel who treated

Jeno during the final weeks of his life. Appellants’ contention is well-taken; all the

pertinent non-party witnesses appear to be in Minnesota. But that does not mean that

appellants will be unable to introduce testimony of those witnesses at a trial in Florida. A

non-party witness residing in Minnesota may be compelled to attend a deposition in

Minnesota for purposes of a case pending in Florida. See Fla. R. Civ. P. 1.410(e); Minn.

R. Civ. P. 45.06(b). And, as this court previously noted in similar circumstances, a video-

recorded deposition may be introduced in that format at a trial in Florida. See In re Jeno F.

Paulucci Revocable Trust, 2013 WL 1859074, at *5; see also Fla. R. Civ. P. 1.310(b)(4),

1.330. The costs of this procedure likely would not be significant in light of the amount at

stake and the parties’ resources. It appears that the second private-interest factor favors the

Minnesota forum but only slightly.

       The district court found that the third private-interest factor is neutral. Michael and

Cynthia contend that the third private-interest factor simply does not apply. We agree that

the third private-interest factor favors neither the Minnesota forum nor the Florida forum.

       The district court found that the fourth private-interest factor favors the Florida

forum because of the related cases pending in Florida. Michael and Cynthia contend that

the district court erred because “the principal cause of action involves the Minnesota

Vulnerable Adults Act, the key events occurred in St. Louis County, and all the witnesses

(save Nelson) live in Minnesota.” Appellants’ contentions are relevant to other factors but

do not pertain to the fourth private-interest factor. As described above, the district court


                                              10
was most concerned with the case-management issues that would arise if it were to retain

jurisdiction, which is the essence of the fourth private-interest factor. We already have

determined that the district court appropriately considered those practical issues. We

believe that the fourth private-interest factor strongly favors the Florida forum.

       To summarize, one private-interest factor (the fourth) strongly favors the Florida

forum, one private-interest factor (the second) slightly favors the Minnesota forum, and the

two remaining private-interest factors are neutral. In light of these circumstances and the

deferential abuse-of-discretion standard of review, the district court did not err in its

analysis of the private-interest factors.

                                             C.

       Michael and Cynthia last argue that the district court erred by not considering the

public-interest factors.

       The district court’s order does not mention the public-interest factors. It appears

that the public-interest factors do not favor either the Minnesota forum or the Florida

forum. The first public-interest factor appears to be neutral because there is no evidence

in the record of congestion in either the Minnesota courts or the Florida courts. The second

public-interest factor does not clearly favor either forum because it is unclear whether this

dispute should be characterized as a Minnesota controversy or a Florida controversy. The

third public-interest factor does not clearly favor either forum because it appears that both

Minnesota law and Florida law must be applied. Michael and Cynthia note that they have

asserted a claim under the Minnesota Vulnerable Adults Act. But to prevail, they likely

must also prove that one or both co-trustees breached a duty to the trust beneficiaries by


                                             11
not commencing an action on behalf of the trust. See Restatement (Third) of Trusts

§ 107(2)(b) (2012). This court previously noted that the Jeno trust is being administered

in Florida. See In re Jeno F. Paulucci Revocable Trust, 2013 WL 1859074, at *6. We also

noted that the trust instrument states that Florida law governs, id., and such a provision “is

not to be lightly disregarded,” In re Florance, 360 N.W.2d 626, 631 (Minn. 1985). The

fourth public-interest factor does not clearly favor either forum because appellants have

not identified any conflicts between the laws of the two states and because we do not

foresee any problems with a Florida court applying Minnesota law. And the fifth public-

interest factor does not clearly favor either forum because neither forum is “an unrelated

forum.” See Paulownia, 793 N.W.2d at 137. Thus, Michael and Cynthia have not

established that the public-interest factors favor the Minnesota forum. Furthermore, they

do not cite any caselaw for the proposition that the absence of any mention of the public-

interest factors is, by itself, reversible error.

       In sum, the district court did not abuse its discretion by reasoning that Florida is a

more convenient forum. Because that conclusion is a sufficient basis for the district court’s

dismissal of the case, we need not consider whether Michael and Cynthia have standing to

assert their claims.

       Affirmed.




                                                    12
