The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

A Florida district judge’s decision to dismiss Canadian fashion mogul Peter Nygard’s lawsuit against an investigator hired by Save The Bays (STB) was upheld by a federal appeals court.

The US Court of Appeals for the Eleventh Circuit ruled in favour of the dismissal and said allowing the case to proceed in the United States risked an inconsistent outcome with the ongoing court action in The Bahamas.

Mr Nygard filed the lawsuit against former FBI agent John DiPaolo, and his D&R Agency LLC, for alleged racketeering in the Florida court following the alleged murder-for-hire plot that rocked the country in 2016.

Four STB directors and a local pastor filed a lawsuit against Mr Nygard and his lawyer Keod Smith in the Supreme Court at the time, accusing the pair of allegedly orchestrating a two-and-a-half-year campaign of fear and violence to “kill or scare off” activists Mr Nygard saw as opponents to development plans for his Lyford Cay property.

The Lyford Cay resident, along with his corporations Nygard International Partnership and Nygard Inc, filed a complaint of an alleged violation of the Racketeer Influenced and Corrupt Organisations (RICO) Act in a southern district Florida court on January 5, 2017.

Mr Nygard claims that Mr DiPaolo, his firm, and others have banded together over the course of several years to cause economic injury to his goodwill, business reputation, properties and businesses in the United States, and for their own financial and other gain, both personally and professionally.

He further claimed that his brand and businesses have suffered damage through loss of good will, irreparable harm to their reputation, and lost business and money; and that his corporations have been damaged because of their inability to obtain appropriate financing as a result of the defendants’ actions.

On May 22, 2017, the district court granted the defence’s motion to dismiss.

“Defendants subsequently moved to dismiss plaintiffs’ complaint for forum non conveniens, or, in the alternative, for the district court to abstain from hearing this matter while the harassment and conspiracy actions proceed,” the appeal ruling read. 

“The district court found that because defendants agreed to submit themselves to the jurisdiction of the Bahamas, the Bahamas was an adequate alternative forum. The district court then balanced the private and public interest factors and concluded that those factors weighed in favour of dismissal. 

“The district court finally concluded that plaintiffs would be able to reinstate their complaint in the Bahamas without undue prejudice or inconvenience.”

Mr Nygard’s appeal argued that the district court erred by refusing to allow for additional discovery, failing to afford substantial deference to their choice of forum, and by adopting an overly narrow interpretation of their complaint - errors which skewed the court’s balance of private and public interest factors.

“The district court proceeded to balance the public interest factors and found that most of these factors also weighed in favour of dismissal,” the ruling read. 

“Regarding court congestion, the district court found that the docket congestion of the Southern District of Florida favoured dismissal. The district court did not, however, consider the docket congestion of the Supreme Court of the Commonwealth of the Bahamas. Docket congestion considers the relative speed at which a case will be resolved and therefore necessarily requires a comparison.

“Accordingly,” it continued, “even though the district court did not accord this factor much weight, we cannot support its conclusion that the administrative difficulties flowing from docket congestion support dismissing this case. 

“Moving on to the second factor, the district court also concluded that the Bahamian interest in this case was greater than the United States without considering the ‘strong federal interest in making sure that plaintiffs who are United States citizens generally get to choose an American forum for bringing suit.’ Additionally, the district court reasoned that the Bahamian interest in this case was paramount because plaintiffs’ allegations involve a fraud on the Bahamian court in the form of the DiPaolo affidavit.” 

The ruling also noted: “This conclusion ignores that the DiPaolo affidavit was also filed in the New York action, giving the United States an equal interest in deciding this case. Thus, we cannot find that the local interest in this case weighs in favour of the Bahamas. 

“Despite the district court’s erroneous findings with respect to the first and second public interest factors, we nevertheless find that the district court’s conclusion that the public interest factors weigh in favour of dismissal was not an abuse of discretion. Although the district court did not consider judicial economy in its analysis of the public interest factors, the possibility of avoiding duplicative litigation is a cognisable interest, distinct from the convenience to the parties, which weighs in favour of dismissal.

“…Allowing this case to proceed in the United States creates a risk of an inconsistent outcome with the Conspiracy Action in the Bahamas. Hence, though the district court’s analysis was problematic, its ultimate conclusion that the public interest factors in this case favour dismissal was not an abuse of discretion.” 

Federal circuit judge Beverly Martin dissented from the majority decision to affirm the dismissal, insisting acknowledged errors constituted an abuse of discretion.