# Talcott v. Kusch

> District Court, S.D. Florida · December 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10122765

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** December 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122765

## How later opinions describe it (automated extraction)

- explaining that “the better rule is to consider both [private and public] factors in all cases”
- explaining that “the district court must . . . determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s causes of action and to any potential defenses to the action” in evaluating the first private interest factor
- holding that district court did not err in considering affidavit in ruling on a motion to dismiss for forum non conveniens

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-61039-BLOOM/Valle

ROBERT H. TALCOTT,

Plaintiff,
v.

JEFFREY C. KUSCH,

Defendant.
________________________________/

ORDER ON DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT

THIS CAUSE is before the Court upon Defendant Jeffrey C. Kusch’s (“Defendant”)
Motion to Dismiss the Amended Complaint, ECF No. [26] (“Motion”).1 Plaintiff Robert H. Talcott
(“Plaintiff”) filed a Response, ECF No. [43],2 to which Defendant filed a Reply, ECF No. [49].
The Court has considered the Motion, all supporting and opposing submissions, the record in this
case, and the applicable law, and is otherwise duly advised. For the following reasons, the Motion
is granted.
I. BACKGROUND
This action stems from an alleged sexual battery in Paris, France, which is the basis of an
active French judicial proceeding and for which Plaintiff seeks compensation in part under French
law. The Court assumes the parties’ familiarity with the facts and procedural history of this action
but sets forth the pertinent allegations of the Amended Complaint, filed on June 6, 2023, ECF No.
[8], and the parties’ representations on the relevant law of France.

1 Defendant also filed the Declaration of Jeffrey Kusch (“Kusch Declaration”), ECF No. [26-1], and the
Declaration of Jacqueline Laffont-Haik (“Laffont-Haik Declaration”), ECF No. [26-2].
2 Plaintiff also filed the Declaration of Robert H. Talcott (“Talcott Declaration”), ECF No. [43-1], and an
excerpt of Defendant’s February 21, 2020 deposition (“Kusch Deposition Excerpt”), ECF No. [43-2].
A. Amended Complaint
The Amended Complaint alleges the following: On May 29, 2019, Plaintiff traveled to
Burgundy, France, to celebrate his mother’s wedding. Am. Compl. ¶ 8, ECF No. [8]. On the
morning of June 3, 2019, Plaintiff, Defendant, and Anne Kusch (Plaintiff’s grandmother and
Defendant’s mother) left Burgundy for Paris, where the three planned to spend a day shopping and

dining. Id. ¶ 14. Defendant reserved rooms at the Hôtel Plaza Athénée in Paris for himself and
Anne Kusch. Id. ¶ 15. After arriving at the hotel, Defendant began insulting hotel guests and others
profanely and loudly. Id. ¶ 16. Defendant later escorted Plaintiff and other unspecified members
of their family to “high-end bars”, Defendant became intoxicated, plying Plaintiff with alcoholic
drinks, and loudly insulted patrons. Id. When Defendant returned to the hotel, he argued with hotel
management and staff.
At 10:30 p.m., Plaintiff escorted Defendant to his hotel room. Upon arriving at the room,
Plaintiff learned “he was expected to share not just a room [with Defendant], but also a bed[.]” Id.
¶ 18. Plaintiff briefly left to escort Anne Kusch to her own separate room and returned to
Defendant’s room at 11:00 p.m. Plaintiff later suggested to Defendant that “it was time to go to

sleep.” Id. ¶ 21. After Plaintiff lay down in bed, Defendant allegedly made sexual contact with
Plaintiff without Plaintiff’s consent. See id. ¶¶ 22-33.
The Amended Complaint describes documentary evidence that is not in the record that
pertains to the events following the hotel room incident. According to the Amended Complaint,
hotel security cameras captured Plaintiff running out of the room, collapsing on a sidewalk outside
the hotel, and sobbing, ostensibly after the purported nonconsensual contact. Id. ¶¶ 34-35. Plaintiff
reported the incident via a call and text messages to Rob Kusch, Plaintiff’s other maternal uncle.
Id. ¶ 35. Plaintiff later spoke with the hotel front desk clerk to request a new room for the night.
Id. ¶ 36. Following the assault, the parties continued to communicate. Plaintiff and Defendant
exchanged text messages on June 4, 2019. Id. ¶¶ 37-38. On June 20 and July 1, 2019, Plaintiff
confronted Defendant about the incident in two phone calls about the assault. Id. ¶ 41. The
Amended Complaint also describes testimonial evidence that supports the nonconsensual contact:
Defendant admitted to one of his longtime friends that he had performed a sex act on Plaintiff. See

id. ¶ 40.
Plaintiff reported the incident to the Doyen des Juges d’Instruction du Tribunal Judiciare
de Paris (“Tribunal”) in France and provided them with corroborating evidence, including witness
statements, videos, and photographs from the security cameras at the hotel. Id. ¶ 42; Decl. of
Robert H. Talcott (“Talcott Decl.”) ¶ 3, ECF No. [43-1]. The Tribunal issued orders on July 5 and
October 9, 2019, directing third parties to produce evidence related to the allegations. Id. On March
5, 2020, French authorities filed a formal criminal complaint against Defendant. Id. In June 2021,
Plaintiff traveled to France to answer the Tribunal’s investigating judge’s questioning concerning
the night of June 3-4, 2019. Id. ¶ 4. France requested that the United States Government interview
witnesses in this district and elsewhere in the United States pursuant to the U.S.-France Mutual

Legal Assistance Treaty. Id. ¶ 5. In October 2022, the Tribunal issued a summons to Defendant,
with which he complied, and Defendant appeared before the Tribunal on June 21-22, 2023 for
questioning. Id. ¶ 6. Plaintiff has not filed a “civil complaint” against Defendant in France. Talcott
Decl. ¶ 7.
The Amended Complaint asserts claims for Rape Under Article 222-23 of the French
Criminal Code (Count I), Sexual Battery (in the alternative) (Count II), Intentional Infliction of
Emotional Distress (IIED) (Count III), Defamation (Count IV), and Violation of Florida Statute
§ 794.026 (Count VI).3 Plaintiff seeks compensation for “all monetary and non-monetary harm he

3 The Amended Complaint does not list a Count V.
has suffered and continues to and will suffer,” including lost and future salary, bonuses, earnings,
and other income, as well as loss of future earning potential; pain and suffering, humiliation,
embarrassment, stress and anxiety; loss of self-esteem and emotional trauma. Am. Compl. at 16.
Plaintiff also seeks punitive damages. Id.

B. Applicable French Law
The following is taken from the Amended Complaint and the Declaration of Jacqueline
Laffont-Haik. Article 2 of the French Code of Penal Procedure states, “[t]he civil action for
compensation for damages caused by a crime, misdemeanor or contravention belongs to all those
who have suffered damages directly caused by the offense.” Am. Compl. ¶ 51. Paragraphs 1 and
2 of Article 4 of the French Code of Penal Procedure state,
[t]he civil action for compensation for the damage caused by the offence provided
for in Article 2 may be brought before a civil court, separately from the public
action. However, the trial of this action shall be postponed until a final decision has
been taken on the public action when the latter has been initiated.
Id. ¶ 53. Pertinent here, Article 222-23 of the French Criminal Code states: “Any act of sexual
penetration, of any nature whatsoever, committed on the person of another or on the person of the
perpetrator by violence, constraint, threat or surprise is rape. Rape is punishable by fifteen years
of criminal imprisonment.” Id. ¶ 48. “Rape” is a crime under French criminal law. Laffont-Haik
Decl. ¶ 7.
Under Article 79 of the French Code of Penal Procedure,4 crimes must be investigated
under a specific type of investigation known as an information judiciaire or instruction
préparatoire, i.e., a “judicial investigation.” Id. Judicial investigations are conducted under the
supervision of an investigating judge. Id. ¶ 8.a. If the investigating judge determines that there are

4 The Laffont-Haik Declaration refers to the French Code of Criminal Procedure, not the French Code of
Penal Procedure. See id. The Court assumes those terms refer to the same body of law and refers to that law
by the term used in the Amended Complaint.
“serious or consistent clues” against a criminal suspect, he or she may decide to order a mise en
examen, an act under which a crime suspect comes under formal investigation and becomes an
official party to the proceedings of the judicial investigation. Id. ¶ 8.b. An alleged victim of a
criminal suspect may initiate a judicial investigation by filing a complaint as a “civil party” absent

“specific and rare exceptions”. Id. ¶ 8.c. Alternatively, when a judicial investigation is ongoing,
any person claiming to be a victim may ask to become a civil party to the proceedings of the
judicial investigation. Id.
When the investigating judge deems his/her investigation is complete, he or she issues a
decision either to dismiss the case or send it to trial, provided there are “sufficient charges”. Id.
¶ 8.e. If the case goes to trial, the prosecutor tries the charges that arose from the judicial
investigation. Id. ¶ 9.a. In a case where a civil party has joined the judicial investigation, the court
will also rule on the civil party’s action “should [the civil party] make demands”, including
compensation for physical damages, mental damages, moral damages, and financial damages. Id.
¶ 9.b.

Proceedings of judicial investigations are confidential pursuant to Article 11 of the French
Code of Penal Procedure. Id. ¶ 10. Parties of an ongoing judicial investigation are bound not to
share confidential information relating to the proceedings with third parties, including counsel to
parties in other proceedings. Id. ¶ 11.a. No documents contained in the file of a judicial
investigation may be shared with third parties. Id. ¶ 11.b.
C. The Motion
Defendant argues this action should be dismissed for forum non conveniens because France
affords Plaintiff an adequate and available alternative forum, the private and public interest factors
set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) favor dismissal, and Plaintiff can
reinstate his suit in France. See generally ECF No. [26]. Plaintiff disputes the adequacy of the
forum in France and argues the Gulf Oil factors weigh strongly against dismissal, especially given
the deference accorded to United States citizens who choose to sue in the United States. See
generally ECF No. [43].
II. LEGAL STANDARD
Generally, in order to obtain a dismissal for forum non conveniens, “[t]he moving party

must demonstrate that (1) an adequate alternative forum is available, (2) the public and private
factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative
forum without undue inconvenience or prejudice.” GDQ Acquisitions, LLC v. Gov’t of Belize, 749
F.3d 1024, 1028 (11th Cir. 2014) (quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th
Cir. 2001)) (alteration in original). The public factors include:
[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 at home 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.
Turner v. Costa Crociere S.P.A., 488 F. Supp. 3d 1240, 1254 (S.D. Fla. Sept. 10, 2020) (citing
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The private factors include:
[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.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Otto Candies, LLC v. Citigroup, Inc.,
963 F.3d 1331, 1338 (11th Cir. 2020). Those factors are not exhaustive and district courts should
be flexible in applying them. King v. Cessna Aircraft Co., 562 F.3d 1374, 1381-82 (11th Cir.
2009).
In considering a motion to dismiss for forum non conveniens, courts must accept the facts
in a plaintiff’s complaint as true “to the extent they are uncontroverted by the defendants’
affidavits.” S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000)
(quoting Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990)). A court may consider matters

outside the pleadings if the defendant provides “enough information to enable the [d]istrict [c]ourt
to balance the parties’ interests” in ruling on a motion to dismiss for forum non conveniens. See
Piper Aircraft, 454 U.S. at 258; see also Grp. CG Builders & Contractors v. Cahaba Disaster
Recovery, LLC, 534 F. App’x 826, 829-30 (11th Cir. 2013) (holding that district court did not err
in considering affidavit in ruling on a motion to dismiss for forum non conveniens).
III. DISCUSSION
Defendant must establish that “(1) an adequate alternative forum is available, (2) the public
and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the
alternative forum without undue inconvenience or prejudice” to prevail on a motion to dismiss for
forum non conveniens. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011) (citing Leon,
251 F.3d at 1310-11). The Court considers those requirements in turn.

A. Availability of an Adequate Alternative Forum
Defendant argues France is an available alternative forum for this action because
Defendant has voluntarily appeared in proceedings in France. ECF No. [26] at 2. Defendant also
argues France is an adequate alternative forum because “the remedies available to Plaintiff in
France are more than adequate.” Id. at 3. Plaintiff only disputes the adequacy of French
proceedings, arguing that Plaintiff’s defamation, IIED, and Section 794.026 claims are not
cognizable there. ECF No. [43] at 5-6 (citing Todd Benjamin Int’l, Ltd. v. Grant Thornton Int’l,
Ltd., No. 20-21808-CIV, 2023 WL 4457458, at *8 (S.D. Fla. July 11, 2023) (“To be available, a
foreign forum must be able to assert jurisdiction over the matter whose transfer is sought.”)).
Defendant first replies that the adequacy of an alternative forum does not depend on the existence
of an identical cause of action, and dismissal may be appropriate despite the absence of certain
legal claims. ECF No. [49] at 4-5.
A defendant bears the burden of persuasion to demonstrate the availability of an adequate

alternative forum. Leon, 251 F.3d at 1311. An alternative forum is “available” when the foreign
court can assert jurisdiction over the litigation sought to be transferred. Id. (citing Piper Aircraft,
454 U.S. at 254 n.22, 102 S. Ct. 252) (“Ordinarily, [the requirement of an alternative forum] will
be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction.” (citation
omitted)). As to the adequacy of the foreign court, the Supreme Court has noted that dismissal may
be improper where “the remedy provided by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. 235, 254, 102 S. Ct. 252, 265.
The Eleventh Circuit has interpreted that observation to mean that dismissal for forum non
conveniens may be appropriate where the remedies available to a plaintiff in the alternative forum
are not clearly unsatisfactory and do not amount to any remedy. See Satz v. McDonnell Douglas

Corp., 244 F.3d 1279, 1283 (11th Cir. 2001) (finding district court did not abuse its discretion in
finding that Argentina was an adequate forum for the case); Republic of Panama v. BCCI Holdings
(Luxembourg) S.A., 119 F.3d 935, 952 (11th Cir. 1997) (holding that claims against foreign entities
were subject to forum non conveniens dismissal where the defendants “presented sufficient proof
to demonstrate that the remedies available under [the plaintiff’s] claims are not ‘so clearly
inadequate or unsatisfactory that [they are] no remed[ies] at all.’”). Moreover, “[t]he adequacy of
the forum also ‘does not depend on the existence of [an] identical cause of action in the other
forum.’” See Jiangsu Hongyuan Pharm. Co. v. DI Glob. Logistics Inc., 159 F. Supp. 3d 1316, 1329
(S.D. Fla. 2016) (quoting Norex Petrol. Ltd. v. Access Indus., Inc., 416 F.3d 146, 158 (2d Cir.
2005)).
The Court agrees with Defendant that France provides an available and adequate
alternative forum for this action because France’s remedies are not so clearly inadequate or

unsatisfactory. The record does not support that Plaintiff has become a “civil party” to the
Tribunal’s judicial investigation of the underlying conduct in this action. See Talcott Decl. ¶ 7 (“I
have never filed, instituted or otherwise commenced – or authorized anyone else to file on my
behalf – any civil against [Defendant] in France. And in fact -- there is no civil complaint filed or
pending against [Defendant] in France”). Nevertheless, the Laffont-Haik Declaration supports that
Plaintiff may become a civil party to the judicial investigation. Laffont-Haik Decl. ¶ 8.c. Moreover,
pursuant to Article 4 paragraphs 1 and 2 of the French Code of Penal Procedure, “a civil action for
compensation for the damages caused by the offence provided for in Article 2 may be brought
before a civil court, separately from the public action.” Am. Compl. ¶ 63. The record supports that
the Tribunal’s judicial proceeding is one from which a “public action” may arise. See Laffont-

Haik Decl. ¶ 9.c (describing the public prosecutor’s action). The record also supports that Plaintiff
may bring a civil action independent of the judicial proceeding because Plaintiff brings a claim for
rape under Article 222-23 of the French Criminal Code, a crime under Article 2 of the French
Code of Penal Procedure. See Am. Compl. ¶¶ 54-65 (describing alleged rape). On the record before
the Court, Plaintiff may bring a civil action as an alleged victim of Defendant, either as part of the
judicial investigation or independently. France therefore provides an available alternative forum.
France also affords an adequate alternative forum. The Laffont-Haik Declaration supports
that a civil party may seek damages arising from a crime, which include physical, mental, moral,
and financial damages. Laffont-Haik Decl. ¶ 9.b. Thus, Plaintiff may obtain compensation for “lost
and future salary, bonuses, earnings, other income, pain and suffering, humiliation,
embarrassment, stress and anxiety, loss of self-esteem and self-confidence, emotional trauma, and
loss of future earning potential.” Am. Compl. at 16.
To be sure, Plaintiff seeks an award of punitive damages, and the record does not indicate

that punitive damages are available in France. Id. Nevertheless, the Court’s inquiry is whether
France’s remedies are clearly inadequate or unsatisfactory, not whether France’s remedies mirror
those available in this district, and those remedies are significant, supporting a finding that France
provides an adequate alternative forum. Leon, 251 F.3d at 1311 (noting that “Courts have been
strict about requiring that defendants demonstrate that the alternative forum offers at least some
relief.” (citing Mercier v. Sheraton Int’l, Inc., 935 F.2d 419, 425 (1st Cir. 1991))).
The Court is not persuaded by Plaintiff’s argument that France is an inadequate alternative
forum because France does not recognize all of Plaintiff’s claims. France need not do so for it to
provide an adequate forum. See BCCI Holdings, 119 F.3d at 952 (agreeing with other circuits that
concluded plaintiff’s inability to assert a RICO claim in a foreign forum does not preclude

dismissal under forum non conveniens); see also Todd Benjamin, 2023 WL 4457458, at *8 (“A
foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly,
even though they may not enjoy the same benefits as they might receive in an American court.”).
Finding that France is an available and adequate alternative forum for this action, the Court
proceeds to consider the private factors.
B. Private Factors
“A plaintiff’s choice of forum is entitled to deference, and there is a presumption in favor
of a plaintiff’s choice of forum, particularly where the plaintiffs are citizens of the United States.”
Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir. 2009) (citing SME Racks, Inc. v.
Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100-02 (11th Cir. 2004)). Thus, “with
regard to the weighing of the private interests, [a] plaintiff[’s] choice of forum should rarely be
disturbed ‘unless the balance is strongly in favor of the defendant.’” SME Racks, 382 F.3d at 1101
(quoting Gulf Oil, 330 U.S. at 508, 67 S. Ct. 839)). This means 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. (citing La Seguridad v. Transytur Line, 707 F.2d
1304, 1308 (11th Cir. 1983)). “[T]he quantum and quality of evidence needed” to make that
showing “will depend on the unique facts and circumstances of the given case.” Otto Candies, 963
F.3d at 1348 (quoting Lacey v. Cessna Aircraft Co., 862 F.2d 38, 44 (3d Cir. 1988)). For that
reason, “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, 454
U.S. at 255 n. 23, 102 S. Ct. 252.
The private factors include the relative ease of access to sources of proof; the availability

of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance
of willing witnesses; the possibility of view of premises, if view would be appropriate to the action;
and all other practical problems that make trial of a case easy, expeditious, and inexpensive. Gulf
Oil, 330 U.S. at 508. In weighing the private interests, the relevant forum for purposes of the forum
non conveniens analysis is the United States as a whole. Wilson, 590 F.3d at 1271 (citation
omitted).
“Given that Plaintiff chose [his] home forum, the Court begins by affording Plaintiff a
strong presumption in [his] favor.” See Diaz v. Societe Air France Co., No. 20-20057-CV, 2022
WL 1400658, at *4 (S.D. Fla. Mar. 30, 2022), appeal dismissed sub nom. Gaimbanco v. Societe
Air France Co., No. 22-11411-BB, 2022 WL 2962712 (11th Cir. June 3, 2022). The Court
evaluates the parties’ arguments as to each factor in turn.
i. Relative ease of access to sources of proof
Defendant argues that France affords easier access to sources of proof because the evidence
and majority of witnesses necessary to adjudicate this matter are in France. ECF No. [26] at 5.

Plaintiff first responds that the relevant inquiry for this factor is whether a defendant has shown
that any documentary and physical evidence could not be obtained if trial were conducted in this
district. ECF No. [43] at 7 (citing Otto Candies, 963 F.3d at 1349). Plaintiff also responds that
such evidence would be obtainable once the proceedings of the judicial investigation are
terminated, and hotel video evidence and certain third-party witness statements are available now.
Id. Plaintiff further maintains that—even if such evidence could not be obtained from authorities
in France—“counsel for both parties in France already possess [evidence in the French file], and,
when appropriate pursuant to French confidentiality rules, can easily electronically send it to
counsel for the parties in this District”, and that the evidence is not strictly necessary for Plaintiff
to prove his case. Id. at 7-8. Plaintiff relies on Sun Trust Bank v. Sun International Hotels, 184 F.

Supp. 2d 1246 (S.D. Fla. 2001), and argues that dismissal for forum non conveniens is not
warranted where a defendant does not show that evidence cannot be obtained in plaintiff’s chosen
forum. Id. at 8-9.
Defendant replies that Sun Trust is inapposite as Plaintiff’s admissions and the Laffont-
Haik Declaration show that “parties to this U.S. action likely will not be able to obtain and utilize
copies of the French testimony and other evidence—including, critically, Defendant[] and
Plaintiff’s statements to French authorities—that is relevant to the civil case here.” Id. (quoting
Pl.’s Mot. to Stay the Case, ECF No. [39] at 3).
Defendant also distinguishes Otto Candies on the grounds that this case concerns a tort that
allegedly occurred in a foreign country, a distinction that Otto Candies itself recognized. ECF No.
[49] at 7-8 (citing Diaz, 2022 WL 1400658, at *6).
As an initial matter, Otto Candies is not helpful to the Court’s discussion because the

defendant in that case presented no evidence relevant to the Gulf Oil private interest factors. Otto
Candies, 963 F.3d at 1349. Moreover, this is not a case where a defendant has failed to show that
evidence is not available in this district. Cf. Sun Tr. Bank v. Sun Int’l Hotels, Ltd., 184 F. Supp. 2d
1246, 1263 (S.D. Fla. 2001) (noting that the parties were already in possession of all documents
generated in connection with the accident that gave rise to the suit and defendants failed to identify
any documentary or physical evidence that could not be obtained if the trial were conducted in the
district).
Here, evidence would be unavailable in this district. The Laffont-Haik Declaration supports
that certain evidence is not available in this district given France’s confidentiality rules. Laffont
Haik Decl. ¶¶ 10-11. Moreover, the Complaint and the Laffont-Haik Declaration further support

that such evidence would be available were Plaintiff to join the proceedings of the judicial
investigation as a civil party or institute an independent action following the public prosecutor’s
action. Laffont-Haik Decl. ¶¶ 8.c., 9.c.; Am. Compl. ¶ 63. As such, the record supports that
evidence that would be practically unavailable in this district would be available either in the
criminal proceeding or a subsequent civil action in France. Further, the Amended Complaint
describes that many potential witnesses to the events following the alleged incident—e.g., hotel
staff and management, bar staff and patrons, store clerks, and government authorities—were in
France, supporting that many if not all are still in France, see Am. Compl. ¶¶ 15, 16, 36, 42; see
also Decl. of Jeffrey Kusch (“Kusch Decl.”) ¶ 3 (describing witnesses, including hotel staff and
French law enforcement, who were in France at the time of the events described in the Amended
Complaint); whereas many of the other witnesses to the events in this case—the parties’ family
members, including the parties, Plaintiff’s mother, and Robert Kusch—demonstrate a willingness
and capacity to travel to France, see id. ¶¶ 8, 13, 14, 15, 35. That being the case, all potential

witnesses to those events were in, may currently be in, or may be able to travel to, France. On the
other hand, an action in this district would require many witnesses to travel to this district to
provide live testimony, a circumstance that supports dismissal. See Diaz, 2022 WL 1400658, at *5
(finding the first Gulf Oil private interest factor weighed in favor of dismissal where witnesses
with personal knowledge of the events that gave rise to the complaint were in Europe); see also
Gulf Oil, 330 U.S. at 511 (“To fix the place of trial at a point where litigants cannot compel
personal attendance and may be forced to try their cases on deposition, is to create a condition not
satisfactory to the court, jury or most litigants.”).
Plaintiff contends that most witnesses are in the United States when considering the two
dozen individuals to whom Defendant allegedly published defamatory statements about Plaintiff,

a circumstance that bears upon the parties’ relative access to evidence between the district and the
alternative forum. ECF No. [43] at 7-8. However, the Court disagrees that the first private factor
entails an exercise in counting the number of witnesses on either side of the Atlantic. More
importantly, neither the Amended Complaint nor the record indicates which of those individuals
heard or read the Defendant’s allegedly defamatory statement or when they did so. See Am. Compl.
¶ 44 (describing generally that “[Defendant] has made false and defamatory statements to others
about [Plaintiff], including but not limited to members of extended family, friends and other
communities in central and South Florida[.]”); see also Kusch Dep. Excerpt at 12-13 (identifying
only the individuals to whom Defendant spoke about “what took place in the Paris bedroom” prior
to June 20, 2019). Given such threadbare representations, the Court cannot determine whether
Defendant’s communications with any of the individuals identified in the record support Plaintiff’s
defamation claim. See Fiedler v. Starwood Hotels & Resorts Worldwide, Inc., No. 05-61671-CIV,
2006 WL 8432489, at *2 (S.D. Fla. Feb. 22, 2006) (observing in dismissing defamation claim that

“Plaintiff ha[d] not identified who made the statement, a third party to whom the statement was
made, and when the statement was published”). It therefore cannot evaluate the extent to which
those communications are critical, or even relevant, for the purpose of its forum non conveniens
inquiry. See Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S. Ct. 1945, 1953 (1988)
(explaining that “the district court must . . . determine whether the pieces of evidence cited by the
parties are critical, or even relevant, to the plaintiff’s causes of action and to any potential defenses
to the action” in evaluating the first private interest factor).
As such, when the deposition testimony cited by Plaintiff is stacked against the Kusch
Declaration, which describes the evidence that is subject to an ongoing criminal investigation in
France, the Court concludes that the majority of the pertinent evidence is in France. That

determination is consistent with the fact that this litigation is a France-centered dispute given that
the events that gave rise to the suit occurred in France and critical evidence is available only in
France. See Ford v. Brown, 319 F.3d 1302, 1309 (11th Cir. 2003) (finding that Hong Kong
afforded relatively easier access to evidence because the action was a Hong Kong-centered dispute
and most of the evidence existed in Hong Kong).
Because evidence from the judicial investigation is not presently available for transfer to
this district, and because the Amended Complaint supports that most of the witnesses described in
the Complaint are in France or can travel to France, the first factor strongly weighs in favor of
dismissal.
ii. Availability of compulsory process for attendance of unwilling witnesses, and the
cost of obtaining attendance of willing witnesses
Defendant contends the majority of the witnesses are in France and that Defendant has no
control over any of those witnesses. See Kusch Decl. ¶¶ 3, 4. Since most of the witnesses are in
France, Defendant reasons those witnesses are not subject to the Court’s compulsory process. See
ECF No. [26] at 6. By contrast, for those witnesses in the United States that are subject to the
Court’s process, Defendant submits that the Court may assist the Tribunal by requiring witnesses
located in the United States to provide documents or testimony pursuant to 28 U.S.C. § 1782. Id.
at 6 n.4.
Plaintiff does not dispute that witnesses who were located in France are not subject to

compulsory process in this district but responds that the key witnesses reside in the United States,
and the majority of witnesses reside in the United States when considering the individuals to whom
Defendant made allegedly defamatory statements. ECF No. [43] at 9-10. Plaintiff further maintains
that the Court may compel the attendance of certain witnesses under Rules 43 and 45 of the Federal
Rules of Civil Procedure. The parties did not file affidavits concerning the costs of obtaining
witness attendance.
The record supports that there are witnesses to the events following the alleged rape in
France. That circumstance supports that not all of them are residents of the United States, meaning
that many of those witnesses, if not all, are not subject to compulsory process. See Kusch Decl. ¶ 3
(asserting that the witnesses were in France at the time of the events and include French

government officials). Moreover, as witnesses to the events following the alleged rape, their
testimony is critical to the parties’ cases in chief. In addition, Defendant does not control those
witnesses and cannot require those witnesses to travel to this district. Id. ¶ 4. Accordingly, there
are key witnesses who are not subject to compulsory process in this country and may be unwilling
to travel to the United States. By contrast, the key witnesses that Plaintiff describes, his mother
and Robert Kusch, have demonstrated a capacity and willingness to travel to France. On balance,
this factor thus favors dismissal. See Beaman v. Maco Caribe, Inc., 790 F. Supp. 2d 1371, 1377-
78 (S.D. Fla. 2011) (“The testimony of these individuals, who are residents and citizens of Mexico,

is critical to the presentation of Plaintiffs’ claims and Defendants’ defenses. That these individuals
appear to not be subject to the compulsory process of the Court, weighs in favor of dismissal.”).
iii. Possibility of view of premises if view would be appropriate to the action
The parties do not discuss the possibility of view of the premises in this case. This is not a
premises liability action, but to the extent that view of the premises is necessary to discovery in
this case, this factor also favors dismissal because the Hôtel Plaza Athénée is in France.
iv. All other practical problems that make trial of a case easy, expeditious and
inexpensive
Defendant contends that “the evidence is predominantly in France, held by the French, and
likely written in French”, making discovery in this case difficult, costly, and slow to produce. ECF
No. [26] at 7. Plaintiff replies that this factor weighs against dismissal since the parties, and “few
witnesses”, do not understand French whereas many of the hotel witnesses in France speak
English. ECF No. [43] at 10-11. Plaintiff also contends that the travel expenses for U.S. witnesses
would be an egregious hardship while litigation in this district would be convenient for the parties,
who reside in the United States. Id.
Defendant notes that Plaintiff is a resident of New York, New York, see Talcott Decl. ¶ 1,
and observes that Plaintiff has returned to France on at least one occasion in June 2021, id. ¶ 4.

See ECF No. [49] at 9. Defendant also notes that the language difficulties cut both ways, meaning
that French witnesses would have difficulty with testifying in this district, and Plaintiff wrongly
assumes that hotel staff are sufficiently fluent in English to testify. Id. Defendant also contends
that documents from France that are relevant to this action would need to be translated into English.
Id.
This factor favors Defendant. As the Court has explained, the necessary proof in this action
is mostly in France, based on the record. As such, most of the documentary evidence and testimony

would need to be translated or interpreted from French to English. Moreover, a trial in this district
would entail great inconvenience to witnesses in France; by contrast, Plaintiff has demonstrated
an ability and willingness to participate in French proceedings, and the members of this family
who were involved in the wedding have shown an ability and willingness to travel to France.
v. Positive evidence of unusually extreme circumstances and material injustice
It follows from the foregoing that private factors weigh strongly in favor of dismissal. For
the reasons stated, the Court is thoroughly convinced that this case presents unusually extreme
circumstances such that material injustice to both parties is manifest. Specifically, the foregoing
demonstrates that both parties will not be able to compel third-party witnesses, or the production
of documents from those witnesses. See Tazoe, 631 F.3d at 1335 (finding no abuse of discretion
where district court concluded the “Manufacturing Defendants’ inability to compel third-party

witnesses or the production of documents from those witnesses, and the inability to implead
potentially liable third-parties, is both unusually extreme and materially unjust”). In addition, it
would be manifestly unjust for the parties to litigate this action without the benefit of the evidence
adduced in the French proceedings.
The Court must note that Plaintiff seeks a stay of this action. See ECF No. [29] at 2
(asserting a stay is mandatory in this case because “the resolution of the pending French criminal
proceedings against Mr. Kusch may well be dispositive as to Mr. Kusch’s civil liability for sexual
battery . . . , as well as of elements of the Plaintiff’s other claims and Mr. Kusch’s defenses that
are at issue in this civil case.”). Plaintiff describes at length the difficulties with litigating this
action during the pendency of the proceedings in France, and reasons that those difficulties militate
against denying a stay. See generally id. However, Plaintiff ignores that the Eleventh Circuit
prohibits “immoderate” stays of actions and the stay of an action that depends upon the conclusion
of proceedings in a foreign country—which are progressing slowly with no date as to their

termination—is indefinite in scope, and therefore immoderate, especially where Defendant
opposes the stay. See Ortega Trujillo v. Conover & Co. Commc’ns, 221 F.3d 1262, 1264 (11th
Cir. 2000) (finding the district court abused its discretion where it imposed a stay that would
remain in effect until the “Bahamian Courts conclude their review”).5 Since an indefinite stay in
this action would be inappropriate, this Court would require the parties to litigate this action in
accordance with the Scheduling Order, a prospect which itself could work a manifest injustice.
Moreover, the prospect of a trial in this district without the attendance of key witnesses to
the events following the alleged rape is fundamentally unfair. See Gulf Oil, 330 U.S. at 511.
Further, should the Court dismiss this action for forum non conveniens, it would not be
denying Plaintiff access to the courts of this country. Instead, as Defendant observes, and Plaintiff

does not dispute, Plaintiff can avail himself of the procedures outlined in 28 U.S.C. § 1782 to
obtain documents and testimony to assist French Courts from individuals in this or any other U.S.
district court, to the extent Plaintiff would seek to litigate this action in France. See 28 U.S.C.
§ 1782(a) (“The district court of the district in which a person resides or is found may order him
to give his testimony or statement or to produce a document or other thing for use in a proceeding
in a foreign or international tribunal[.]”).

5 Plaintiff argues, without support, that principles of comity counsel the Court exercising its inherent power
and discretion to stay the action, ECF No. [29] at 17. However, abstention is the exception to the rule and
courts regularly permit parallel proceedings. Id.
Although the Court finds the private interest factors weigh heavily in favor of dismissal,
the Court nevertheless proceeds to consider the public factors. See Fresh Results, LLC v. ASF
Holland, B.V., 921 F.3d 1043, 1050 (11th Cir. 2019) (explaining that “the better rule is to consider
both [private and public] factors in all cases”).

C. Public Factors
The public factors include the administrative difficulties flowing from court congestion;
the “local interest in having localized controversies decided at home”; the interest in having the
trial of a diversity case in a forum that is at home with the law that must govern the action; the
avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and
the unfairness of burdening citizens in an unrelated forum with jury duty. See Turner, 488 F. Supp.
3d at 1254 (citing Piper Aircraft, 454 U.S. at 241 n.6).
i. Administrative difficulties flowing from court congestion
Defendant argues allowing this action to remain in this district would be an inconvenient
and inefficient use of this Court’s judicial resources because Plaintiff is not a Florida resident, the
majority of witnesses and evidence are in France, and the district has a congested docket. ECF No.

[26] at 3. Plaintiff generally disputes this action is inconvenient and inefficient and maintains that
the majority of witnesses are in the United States, but Plaintiff does not address Defendant’s
argument concerning the Court’s docket. ECF No. [43] at 11-12.
This factor slightly favors dismissal. Although this Court presides over many cases, the
administrative difficulties that flow from the management and adjudication of this case are not
great. However, this case would present administrative difficulties with scheduling the trial in this
action within the trial period set in the Court’s Scheduling Order, ECF No. [25]; as the parties
recognize, testimony in this action would require the parties and the Court to coordinate the trial
schedule with witness’ overseas travel.
ii. Local interest in having localized controversies decided at home
Given that the events giving rise to this action occurred in France, and France imposes
criminal liability for rape, France has a strong interest in prohibiting the alleged conduct on French
soil. On the other hand, the United States has a strong interest in providing a domestic forum for
its citizens. However, France’s interest outweighs those of the United States in this case because

Plaintiff traveled voluntarily to France for his mother’s wedding and to assist with the ongoing
criminal investigation. See Horberg v. Kerzner Int’l Hotels Ltd., 744 F. Supp. 2d 1284, 1296 (S.D.
Fla. 2007) (“under the circumstances of this case, especially taking into consideration the fact that
Plaintiffs traveled voluntarily to The Bahamas on multiple occasions, the interest of The Bahamas
outweighs that of the United States.”).
iii. Interest in having the trial of a diversity case in a forum that is at home with the
law that must govern the action
Without question, courts in France are at home with the law of Count I. Moreover, that law
arises from France’s civil law legal tradition, a tradition of which this Court is unfamiliar. See Ace
Am. Ins. Co. v. Wattles Co., 930 F.3d 1240, 1255 (11th Cir. 2019) (“At least three of these
countries—Mexico, Spain, and France —have legal systems that are based, at least in part, on the
civil law legal traditions embodied in the Napoleonic Code.” (citing Martinez v. United States, 828
F.3d 451, 456 (6th Cir. 2016) (noting that Mexico “models its legal system not on Blackstone’s
common law but on Napoleon’s civil law”))).
Plaintiff correctly notes that the majority of the Counts in this action arise under Florida
law. ECF No. [43] at 13. While the action litigated in France would not include the Florida law

claims, that circumstance ignores that the law of France allows Plaintiff to recover based on the
harms arising from Defendant’s allegedly tortious statements. As previously stated, Plaintiff may
recover physical, mental, moral, and financial damages. Based on this record, Plaintiff may recover
from harms stemming from the events of June 3-4, 2019. Laffont-Haik Decl. ¶ 9.b. Accordingly,
this factor also favors dismissal.
iv. Avoidance of unnecessary problems in conflict of laws, or in the application of
foreign law
Litigation in France would avoid problems in conflict of laws and the application of foreign
law since courts in France would apply the law of France in this case and would not independently
consider the Florida law claims. By contrast, this Court would have to apply the law of France and
civil law modes of reasoning. Accordingly, this factor too favors dismissal.
v. Unfairness of burdening citizens in an unrelated forum with jury duty.
The record does not indicate that any jury would be burdened if this action were litigated
in France. A jury in this district would not be burdened given that Defendant is an American citizen

who bears the benefits and burdens of United States law. Reid-Walen v. Hansen, 933 F.2d 1390,
1400 (8th Cir. 1991). This factor is therefore neutral.
On balance, the public interest factors weigh in favor of dismissal because four of the five
factors favor dismissal, and one is neutral, and also because of the civil law nature of this action
and France’s superior interest in the adjudication of this action weigh heavily in favor or dismissal.
D. Reinstating Suit in Alternative Forum
The parties do not dispute that Plaintiff can reinstate this suit in France. As previously
stated, Plaintiff may elect to join the public action currently in the investigative phase in France or
institute an independent civil action that may be adjudicated once the public action is concluded.
E. Dismissal without prejudice
For the reasons stated above, this case is due to be dismissed. Accordingly, the Court does

not reach Defendant’s arguments regarding whether Counts I, IV, and VI state a claim for relief.
As part of its consideration of the parties’ arguments, the Court reviewed Satz v. McDonnell
Douglas Corp., 244 F.3d 1279 (11th Cir. 2001), where the Eleventh Circuit affirmed the district
court’s dismissal for forum non conveniens. Satz, 244 F.3d at 1284. In doing so, the Eleventh
Circuit observed that the district court had conditioned its order of dismissal on the defendant

consenting to any foreign judgment against it, agreeing to conduct all discovery in accordance with
the Federal Rules of Civil Procedure, and voluntarily producing documents and witnesses within
the United States. Satz, 244 F.3d at 1283. The Court finds it is appropriate to impose the same
conditions on this Order. Alternatively, as Defendant notes, to the extent Plaintiff seeks discovery
for any pending case in France, Plaintiff may file an application under 28 U.S.C. § 1782 under a
different case number, and Plaintiff may obtain discovery in this district, if Plaintiff meets the
requirements for relief under that provision. Should Plaintiff do so, Plaintiff must file a notice of
a related action referring to this case, in accordance with the Local Rules.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss the Amended Complaint, ECF No. [26], is

GRANTED.
2. This case is DISMISSED WITHOUT PREJUDICE. Dismissal is conditioned
upon Defendant consenting to any foreign judgment against it, agreeing to conduct
all discovery in accordance with the Federal Rules of Civil Procedure in aid of the
proceedings in France, and voluntarily producing documents and witnesses within
the United States for those proceedings, if Plaintiff elects to institute an action in
France.
3. Plaintiff’s Motion to Stay the Case, ECF No. [29], is DENIED AS MOOT.
Case No. 23-cv-61039-BLOOM/Valle

4. To the extent not otherwise disposed of, all pending motions are DENIED AS
MOOT and all deadlines are TERMINATED.
5. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on December 4, 2023.

BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122765. Public record. Not legal advice.