            Case: 19-10986   Date Filed: 05/27/2020   Page: 1 of 8



                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10986
                       ________________________

                 D.C. Docket No. 8:17-cv-02229-SDM-AEP



CARMEN ELENA MONTEILH CHAVARRIA,

                                                            Plaintiff-Appellant,

                                  versus

INTERGRO, INC.,
TIMOTHY DOLAN,
FELIX RENTA,

                                                         Defendants-Appellees.
                       ________________________

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

                              (May 27, 2020)

Before ED CARNES, Chief Judge, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:
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      Carmen Elena Monteilh Chavarria sued her employer Intergro, Inc.,

Intergro’s owner, and her supervisor. She alleged that Intergro, which is based in

Honduras, and the other defendants committed negligence, breach of contract, and

intentional infliction of emotional distress there. Seven months after filing suit —

and after relying on Florida law in two complaints and in a response to the

defendants’ motion to dismiss — Chavarria filed a motion asking the court to rule

that Honduran law instead of Florida law controlled the claims. The district court

denied that motion, ruled that Florida law applied, and on the basis of Florida law

granted the defendants’ motion to dismiss two of the claims and their motion for

summary judgment on the remaining claim. It entered final judgment for the

defendants.

      Chavarria appeals. She argues to us that the district court erred in applying

Florida law instead of Honduran law. But she did not raise that issue in a timely

fashion in the district court. As a result, it was not preserved and is not properly

before us. And she has not argued to us that, assuming Florida law applies, the

district court erred in granting the defendants’ motions to dismiss and for summary

judgment, so she has forfeited any argument about that. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

                                           I.




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      Chavarria worked in La Lima, Honduras for Intergro, Inc., a Honduran

company. She seriously injured her eye in January 2015 during a whitewater

rafting trip that was part of a company training event. Intergro refused to pay for

her “medical expenses, any lost wages, any pain and suffering, [or] anything else

related to [her] injury.” Not only that but Intergro also fired Chavarria in May

2016. Her contract of employment did not provide any severance pay and she

received none.

      Chavarria filed a lawsuit in the Middle District of Florida in September 2017,

naming as defendants: Intergro; Timothy Dolan, the owner of the company; and

Felix Renta, her supervisor. Her complaint included the following introduction:

      This is an action for personal injury brought under Florida Stat.
      §768.041 - §768.81 et seq. (“Negligence”), for the Intentional Infliction
      of Emotional Distress brought under Florida common law (“IIED”),
      and for breach of contract pursuant to non-payment of employment
      termination benefits under Florida common law.

(emphasis added). Count I was titled “NEGLIGENCE OF ALL DEFENDANTS

[Under Florida Common Law],” and alleged that they negligently allowed the

whitewater rafting company to “make the decision as to what protective equipment

to provide.” (emphasis added). Count II was titled “INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS ALL DEFENDANTS [Under Florida

Common Law],” and alleged that the defendants’ “intentional refusal to pay

[Chavarria’s] lost wages, medical expenses, and other benefits, as required by


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Honduran law . . . caused [her] emotional distress.” (emphasis added). And Count

III was titled “BREACH OF CONTRACT INTERGRO [Under Florida Common

Law]” and alleged that Honduran law required severance payment and that failing

to abide by that requirement amounted to a breach of contract under Florida law.

(emphasis added).

      The three defendants moved for a more definite statement. In response,

Chavarria filed the first amended complaint. In that complaint she included the

same introduction and the same three claims and noted that each was brought under

Florida common law.

      The defendants moved to dismiss the first amended complaint, and Chavarria

filed a response in opposition to the defendants’ motion to dismiss. In that response

she relied on the substantive law of Florida, not the substantive law of Honduras, in

arguing that she had satisfied the pleading standard under Federal Rule of Civil

Procedure 12(b)(6).

      Five months later, but before the motion to dismiss was decided, Chavarria

filed a “motion for choice of law.” In it she contended that under Klaxon Co. v.

Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941), federal courts must apply the

choice of law analysis of the states where they sit, so the Florida choice of law rules

applied to her lawsuit. And, she argued, under the Florida choice of law rules,

Honduran substantive law controls, not Florida law.


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         In denying that motion, the district court ruled that Florida substantive law

controlled. It noted that a party can waive application of non-forum law by failing

to timely raise it, and found that:

         In both the complaint and the amended complaint, the plaintiff asserts
         emphatically (and highlights in bold) that each claim is brought under
         Florida common law. The plaintiff’s response to the motion to dismiss
         is based entirely on Florida law. Seven months elapsed between the
         day the plaintiff sued and the day the plaintiff moved for “choice of
         law.” Because the plaintiff failed to give timely notice of the claimed
         applicability of foreign law, she has waived her right to assert that
         Honduran law governs her claims.


In that same order the court also dismissed the intentional infliction of emotional

distress claim as to all three defendants and dismissed the contract claim against

Dolan and Renta. 1 The court also ordered Chavarria to file a second amended

complaint and to provide a more definite statement about the breach of contract

claim.

         In response Chavarria filed the second amended complaint, which contained

only a negligence claim against Intergro, Dolan, and Renta and a breach of contract

claim against only Intergro. It included an introduction stating that “[t]his is an

action for personal injury brought under Florida Stat. § 768.041 - § 768.81 et seq.

(‘Negligence’), and for breach of contract pursuant to non-payment of employment


         1
         Although the district court dismissed the contract claim against Dolan and Renta, the
first amended complaint does not appear to have asserted a contract claim against them, but
against only Intergro.

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termination benefits under Florida common law.” And the title of each count stated

in bold that it was brought “Under Florida Common Law.”

      The defendants moved to dismiss the breach of contract claim under Rule

12(b)(6) and moved for summary judgment on the negligence claim. The district

court granted those motions relying on Florida law. Chavarria appeals.

                                          II.

      Chavarria contends that the district court erred in applying Florida law to

both the negligence and breach of contract claims and asks us to reverse the district

court’s grant of the defendants’ motion to dismiss and motion for summary

judgment and to remand for the district court to apply Honduran law. We review de

novo both a district court’s grant of a motion to dismiss and a district court’s grant

of summary judgment. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th

Cir. 2012) (motion to dismiss); Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919

(11th Cir. 2018) (summary judgment).

      Chavarria’s contention that Honduran law should apply fails on appeal for

the same reason it failed in the district court: the application of non-forum law can

be waived. “Under our precedents, a party waives its opportunity to rely on non-

forum law where it fails to timely provide — typically in its complaint or the first

motion or response when choice-of-law matters — the sources of non-forum law on

which it seeks to rely.” Sun Life Assurance Co. of Can. v. Imperial Premium Fin.,


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LLC, 904 F.3d 1197, 1208 (11th Cir. 2018). In Sun Life, we noted that the plaintiff

failed to plead that non-forum law applied and “seemed quite content early in the

litigation with the application of Florida law” because its primary argument relied

on Florida law. Id. at 1209. Based on those facts, we held that the plaintiff waived

its ability to rely on non-forum law. Id.

       Chavarria, like the plaintiff in Sun Life, failed to raise the choice of law issue

in her pleadings or in the first responsive brief where choice of law mattered, which

was her opposition to the defendants’ motion to dismiss. And like the plaintiff in

Sun Life, she “seemed quite content early in the litigation with the application of

Florida law.” Id. In fact, in all three of her complaints filed in this case —

including the second amended complaint, which was filed after the court ruled on

the choice of law motion — Chavarria explicitly stated that she brought her claims

under Florida law. See Supra at 3–5. By only belatedly suggesting that Honduran

law applied, she waived that issue.

       Chavarria asserts that in ruling she had waived the Honduran law issue, the

district court conflated two different choice of law rules. She argues that use of

non-forum law can be waived under Federal Rule of Civil Procedure 44.1, but that

it cannot be waived under Klaxon, 313 U.S. at 496, which held that when a district

court is sitting in diversity it must apply the rules of the state in which it sits for

choice of law disputes. But there was no waiver issue in Klaxon; it involved a


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choice of law issue that was timely raised and properly preserved. In contrast,

where a choice of law issue is not timely raised and preserved in the district court,

waiver applies. See Sun Life, 904 F.3d at 1208.

       Because Chavarria’s appeal depends on an issue that she waived in the

district court, she cannot prevail here. See Wright v. Hopper, 169 F.3d 695, 708

(11th Cir. 1999) (“We will not consider claims not properly presented to the district

court and which are raised for the first time on appeal.”).2

       AFFIRMED.3




       2
          Chavarria attempted to sue the defendants in Honduras, but putative defendant Dolan
refused to answer the summons. Chavarria says that at the time that this case was pending, she
was in the process of requesting letters rogatory from the Honduran Supreme Court. The district
court agreed to accept those letters but they had not arrived at the time that court entered its final
judgment. In her brief here, Chavarria asks us, if those letters arrive, to “take judicial notice of
[the letters] and act accordingly given the reciprocity that exists between the U.S. and Honduras.”
She has not explained what “act accordingly” means. Since no letters rogatory have been
submitted to us, we assume they have not arrived, and we have no occasion to decide whether we
could or should take judicial notice of them.
       3
         This case was originally scheduled for oral argument, but the panel unanimously decided
that it was not necessary. See 11th Cir. R. 34-3(f). Chavarria moved to delay oral argument.
Because we are issuing this opinion without oral argument, that motion is DENIED AS MOOT.

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