Wilmot v. Marriott Hurghada Management, Inc. et al

Filing 34

MEMORANDUM ORDER: Plaintiff's objections (D.I. 31 ) are OVERRULED. The Report and Recommendation (D.I. 29 ) are ADOPTED. And the Motion to Dismiss (D.I. 7 ) is GRANTED. Signed by Judge Richard G. Andrews on 6/22/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

GUY WILMOT,
Plaintiff;

v.
Civil Action No. 15-618-RGA-MPT

MARRIOTT HURGHADA MANAGEMENT,
INC. and MARRIOTT INTERNATIONAL,
INC.,
Defendants.

MEMORANDUM ORDER

The Magistrate Judge filed a Report and Recommendation recommending that
Defendants' motion to dismiss be granted. (D.I. 29). Plaintiff has filed objections, to which
Defendants have responded. (D.I. 31, 33). I review the Magistrate Judge's legal conclusions de

novo. 28 U.S.C. § 636(b)(l)(C).
In assessing a motion to dismiss based onforum non conveniens, "a district court must
first determine whether an adequate alternative forum can entertain the case," and if so, "the
district court must then determine the appropriate amount of deference to be given the plaintiff's
choice of forum." Windt v. Qwest Commc'ns Int'!, Inc., 529 F.3d 183, 189-90 (3d Cir. 2008).
The district court must then "balance the relevant public and private interest factors." Id. at 190. 1

1

The private interest factors include: "the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises ... ; and all other practical problems that make a trial of a case
easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), superseded in
part by statute, 28 U.S.C. § 1404. The public interest 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.
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If the "plaintiffs' chosen forum would 'establish ... oppressiveness and vexation to a defendant .

. . out of all proportion to plaintiff's convenience,' or when the 'chosen forum [is] inappropriate
because of considerations affecting the court's own administrative and legal problems,' the court
may, in the exercise of its sound discretion, dismiss the case." Id. at 189 (alteration and omission ·
in original) (quotingKosterv. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).
"[T]he defendant bears the burden of persuasion as to all elements of the forum non conveniens
analysis." Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991) (citations omitted).
Defendants have identified Egypt as an alternate forum. Generally speaking, a forum is
an adequate alternative if "the defendant is amenable to process in the other jurisdiction," and
"the subject matter of the suit is ... cognizable in the alternative forum." Lacey, 932 F.2d at
180 (quotation marks omitted). Since Defendants have represented that they "will accept service
of a complaint filed in Egypt and will consent to the court's jurisdiction in Egypt," they are
considered amenable to process. (D.I. 8 at 8).
Plaintiff argues that, because Defendants have failed to show that "an Egyptian court
would specifically hear claims sounding in joint venture and vicarious liability," Egypt is an
inadequate alternative. (D.I. 31 at p. 6). "The availability of an adequate alternative forum does
not depend on the existence of the identical cause of action in the other forum." PT United Can

Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998). Instead, a forum is inadequate in
those "rare circumstances ... where the remedy offered by the other forum is clearly
unsatisfactory." Piper Aircraft, 454 U.S. at 254 n.22. Here, Defendant's expert on Egyptian
law, Mr. Ezzo, reviewed Plaintiff's complaint. (D.I. 8, Ex. A ifif 4-5). He states in his affidavit
that Egyptian civil law "recognizes Plaintiff's claims against the hotel," such that Plaintiff could

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981) (quotation marks omitted).

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"bring[] an action against the Hotel before Egyptian Courts claiming compensation for the
injuries and/or damages he is alleging to have suffered during his stay." (Id.

ifif 7, 17).

It appears

that, since Plaintiffs claim would be subject to a three year statute oflimitations period in Egypt,
Plaintiffs claim would be timely if filed before July 19, 2016. (Id.

if 18).

Since Egypt

recognizes the subject matter of Plaintiffs action, I cannot conclude that the remedy offered is
"clearly unsatisfactory."
Plaintiff also argues that Egypt is inadequate because it is unsafe. Specifically, Plaintiff
references the presence ~f the Islamic State in the Sinai Peninsula and the destruction of a
Metrojet airliner which departed from Sharm el-Sheikh on October 31, 2015. Plaintiff contends
that because his witnesses are "Westemers [who] also happen to be Christians from a country
allied with the United States in a war on terrorism .... , Plaintiff and the witnesses are ... targets
of violence." (D.I. 31 at p. 4). "A litigant asserting inadequacy ... must make a powerful
showing." Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1179 (9th Cir. 2006). General
assertions about potential violence and political unrest within a region typically do not suffice to
show that an alternative forum is inadequate. Compare Iragorri v. Int'l Elevator, Inc., 203 F.3d
8, 13 (1st Cir. 2000) (although Plaintiff and her family feared for "their personal safety" in
Colombia, where the State Department had advised against unnecessary travel, the court
affirmed the district court's conclusion that there was "no particularized evidence that travel to
Colombia would imperil the Iragorris."); BF! Grp. Divina Corp. v. JSC Russian Aluminum, 481
F. Supp. 2d 274, 284 (S.D.N.Y. 2007) (Nigeria found adequate despite "generalized statements
regarding instability in the region"); Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 896-97
(S.D.N.Y. 1981) (Saudi Arabian forum found adequate despite plaintiffs assertions that his
personal safety would be in jeopardy) with Rasoulzadeh v. Associated Press, 574 F. Supp. 854

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(S.D.N.Y. 1983) (forum inadequate where plaintiff would be executed ifhe attempted to litigate
the casein Iran), ajf'd without opinion, 767 F.2d 908 (2d Cir. 1985); HSBC USA, Inc. v.
Prosegur Para., S.A., 2004 WL2210283, at *3 (S.D.N.Y. Sept. 30, 2004) (forum inadequate
where Plaintiff presented "ample evidence" of "violence ... directed at individual witnesses" in
Paraguay). Plaintiff has submitted affidavits from thirteen individuals who claim to have
personal knowledge of the July 2013 incident. (D.I. 18, Tabs 5-17). These individuals, all of
whom are citizens of the United Kingdom, state that while they would testify in Delaware, they
are unwilling to testify in Egypt. (Id.). 2 While the United States is clearly the forum in which
the Plaintiff would prefer to litigate and the witnesses would prefer to appear, that is not the issue
presented by this forum non conveniens motion. Beyond general assertions about potentially
dangerous conditions in parts of Egypt, Plaintiff has failed to advance any evidence which would
show that litigation in Egypt would be so dangerous and inadequate as to provide "no remedy at
all." Piper Aircraft, 454 U.S. at 254; see also Carijano v. Occidental Petroleum Corp., 643 F.3d
1216,

1226~27

(9th Cir. 2011). While Plaintiff may not consider Egypt an ideal forum, I cannot

conclude that it is inadequate.
While "[a] defendant invoking/arum non conveniens ordinarily bears a heavy burden in
opposing the plaintiffs chosen forum," that presumption "applies with less force" "[w]hen the
plaintiffs choice is not its home forum." Sinochem Int'l Co. v. Malay. Int'/ Shipping Corp., 549
U.S. 422, 430 (2007) (quotation marks omitted). Here, Plaintiff is a citizen of the United
Kingdom. There is no "evidence of convenience" which could "overcome any reason to refrain

2

For instance, Mr. Taylor states that he "would be concerned about testifying in a case that in any way
might impact the financial coffers of ... [the] high ranking member[s] of the Egyptian military," who-according to Mr. Taylor-own "many of the properties in Egypt." (D.I. 18, Tab 5 ~ 26). Mr. Taylor also
expressed his "concerns with the ISIL terrorist group." (Id. ~ 24). Mses. Smith, Beck, Wilmot, Paes, and
Gillespie all state that, because they are women who would be traveling to a "Muslim country," their
personal safety, "if not [their] li[ves], would be at risk." (D.I. 18, Tabs 10, 14-17).

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from extending full deference to the foreign plaintiff's choice." Lony v. E.I. Du Pont de
Nemours & Co., 886 F.2d 628, 634 (3d Cir. 1989). The alleged injury occurred in Egypt at an

Egyptian hotel, in the presence of witnesses from the United Kingdom and Egypt. Plaintiff's
injuries were treated by an Egyptian doctor. Aside from Defendants' incorporation in Delaware,
this lawsuit has almost no "bona fide connection to the United States and to the forum of
choice." Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 876 (3d Cir. 2013) (quoting
Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (footnote omitted)). Therefore,

Plaintiff's forum choice should be accorded significantly less deference.
The Magistrate Judge conducted an analysis of the various public and private interest
factors. In summary, "[n]one of the relevant events occurred in Delaware or even in the United
·states." (D.I. 29 at p. 12). All of Plaintiff's "treating physicians, physical therapists, lay
witnesses, and any records generated from his medical care ... are almost entirely located in the
United Kingdom." (Id.). 3 Additionally, "Marriott Resort managers and employees, any books
and records relating to maintenance and any previous incidents, as well as the doctors who
performed the initial surgery on Wilmot and any emergency room records are located in Egypt."
. (Id.). Plaintiff has expressed his intent to call Marriott executives, who are located in or around

Delaware. (D.I. 17 at p. 15). Since these witnesses likely possess little-if any-knowledge
about a slip and fall in Egypt, however, they are of minimal relevance to this dispute. (D.I. 33 at
pp. 2-3; D.I. 29 at pp. 12-13). The site of the accident is also in Egypt. (D.I. 29 at p. 12). As for
the public factors, "[t]his litigation bears no connection to the United States or this court other
than [D]efendants are Delaware corporations." (Id. at p. 13). Further, "[g]iven that no
[percipient] witnesses reside in the United States, no evidence is located in the United States, and

3

Plaintiff has twenty-nine United Kingdom witnesses with relevant information. (D.I. 18, Tab 4 if 17).

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the scene of the incident is in Egypt, the other factors weigh heavily in favor of dismissal." (Id.).
Defendants have "show[n] that the balance of public and private factors 'tips decidedly in favor
of trial in [Egypt].'" Kisano, 737 F.3d at 877 (quoting Lacey, 932 F.2d at 180); see also Koster,
330 U.S. at 524. I therefore conclude that a dismissal based onforum non conveniens is
warranted.
The Court notes that Defendants have also agreed to litigate in the United Kingdom,
should Plaintiff be unwilling to file an action in Egypt. Specifically, Defendants have"concede[d] that [they are] subject to the jurisdiction of [the United Kingdom] courts [and] ...
would waive any jurisdictional or other legal obstructions that may impede plaintiffs' case
there." D 'Elia v. Grand Caribbean Co., 2010 WL 1372027, at *7 (D.N.J. Mar. 30, 2010); (D.I.
33 at p. 8). 4 As for whether this action would be cognizable in the United Kingdom, this is a
negligence case. (D.I. 1). "Based on the facts alleged in the [c]omplaint, [Plaintiff] could bring
suit for negligence tort liability as well as statutory liability under the [Occupiers' Liability Act
1957, 5 & 6 Eliz. 2, c. 31]in the United Kingdom." Lynch v. Hilton Worldwide, Inc., 2011 WL
5240730, at *2 (D.N.J. Oct. 31, 2011); see also Murdock v. Scarisbrick Group Limited, [2011]
EWHC 220 (QB). In the United Kingdom, a three year limitations period applies to personal
injury actions. Limitation Act 1980, c. 58; see also Lynch, 2011WL5240730, at *3 n.3. While
it appears that this action would be timely ifbrought before July 19, 2016, Defendants have also
agreed to "waive any statute oflimitations defense as it relates to the filing ofthis claim in the

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Plaintiff contends that Defendants have failed to show that a court in the United Kingdom "would even
accept jurisdiction of a case against two American corporate defendants involving an injury that occurred
in Egypt." (D.I. 31 at p. 7). Since Defendants are not domiciled in a European Union Member State, I
think that common law jurisdiction rules would apply, rather than the Brussels Regulation. Those
common law rules provide that jurisdiction may be "founded as of right by service of proceedings on the
defendant within the jurisdiction." Spiliada Maritime Corporation v. Cansulex Limited, [1986] UKHL
10. Defendants have agreed to submit to such service.
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United Kingdom." (D.I. 33 at p. 8). It is unclear why Defendants have agreed to litigate in the
United Kingdom, as any benefits of convenience would seem to inure to Plaintiff. Nevertheless,
if Plaintiff prefers not to litigate this case in Egypt, Defendants have furnished Plaintiff with a
convenient alternative. 5
As for the other objections raised by Plaintiff, I do not think that the Magistrate Judge
improperly placed the burden of persuasion on Plaintiff. I also do not think that the Magistrate
·Judge's analyses are factually unsupported.
Therefore, Plaintiff's objections (D.I. 31) are OVERRULED.
The Report and Recommendation (D.I. 29) is ADOPTED.
Defendants' motion to dismiss (D.I. 7) is GRANTED.

It is SO ORDERED

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thi~ay of June, 2016.

I can understand why Plaintiff's objections to filing a lawsuit in Egypt led him to file the suit in
Delaware. If he had filed suit in the United Kingdom first, he could reasonably have expected Defendants
to seek dismissal of the lawsuit for lack of jurisdiction. Once that risk is removed, however, it is clear
that the United Kingdom is overwhelmingly more convenient than the United States for Plaintiff and his
witnesses.

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