DiFederico et al v. Marriott International, Inc.
Filing
36
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 4/25/2012. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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* Civil Case No.: RWT 11cv1508
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MEMORANDUM OPINION
MARY DIFEDERICO, et al.,
Plaintiffs,
v.
MARRIOTT
INTERNATIONAL, INC.,
Defendant.
On June 23, 2011, Plaintiffs filed a three-count Amended Complaint against Marriott
International, Inc. (“Marriott”) asserting claims for wrongful death, survivorship, and vicarious
liability arising out of the September 20, 2008, terrorist attack on the Marriott Hotel in
Islamabad, Pakistan.1 Doc. No. 3. Marriott has moved to dismiss based on the doctrine of forum
non conveniens, arguing that the matter should proceed in Pakistan. Doc. No. 23. On March 26,
2012, the Court held a hearing on the motion. For the reasons discussed below, Marriott’s
motion will be granted, and the Amended Complaint will be dismissed without prejudice.
I.
Background Facts
On September 20, 2008, at 7:55 p.m., a dump truck filled with 1,320 pounds of
explosives, artillery shells, mortar bombs, and shrapnel entered the driveway and impacted the
anti-terrorist vehicle crash barrier at the Islamabad Marriott hotel. Am. Compl. ¶ 28. Plaintiffs
allege that the suicide bomber within the cab of the truck initiated an explosion, but the device
malfunctioned. Id. ¶ 30. A fire started in the cab of the truck, but the explosives did not detonate
1
The original complaint was filed on June 2, 2011, Doc. No. 1, but was amended before Marriott was served.
immediately. Approximately seven minutes later, a second explosion occurred in the rear of the
truck resulting in a fire that destroyed the hotel, killing fifty-six people including Albert
DiFederico. Id. ¶ 34.
Plaintiffs2 allege that Marriott was negligent in defending the hotel against terrorist
attacks and in responding to the specific attack in 2008. Plaintiffs claim that the level of terrorist
activity in Islamabad and the image of the Islamabad Marriott Hotel having western ties created
a general environment in which a reasonable person would have protected against future terrorist
attacks. Id. ¶ 13. Plaintiffs contend that Marriott was negligent in developing and carrying out
its anti-terrorism plan and otherwise failing to protect the decedent. Id. ¶ 24.
The Amended Complaint sets forth details of the hotel’s security procedures and how the
personnel in Pakistan allegedly deviated from Marriott’s standards. Id. ¶¶ 16-24. Plaintiffs
claim that security and hotel employees failed to respond appropriately when the truck
containing the explosives entered the compound and then after the fire started. Id. ¶¶ 28-34.
Plaintiffs allege that the later explosion could have been averted if hotel personnel had acted
promptly by putting out the fire and alerting hotel guests of the impending danger. Id. ¶ 35.
In its motion to dismiss, Marriott argues that the hotel is “a franchised hotel owned and
operated by Hashwani Hotels Limited (“Hashwani”), a public limited company organized under
the laws of Pakistan.” Doc. No. 23 at 2. Hashwani is not a Marriott subsidiary, but rather a
separate, independently operated company. Id. at 2-3. Marriott states that it had a general crisis
management plan in 2008 that it shared with both managed and franchised hotels. Id. at 3. “This
plan established various threat conditions pursuant to recommendations from independent
security services companies based in Hong Kong, London, and the United States.” Id. Marriott
2
The Plaintiffs are Mary DiFederico, the widow of Albert DiFederico and Personal Representative of his estate, and
Nicholas DiFederico, Erik DiFederico, and Greg DiFederico, his three sons.
2
“provides guidance to assist its franchised hotels with their respective local crisis management
plans . . . Marriott, however, relies exclusively on the owners of franchised hotels to implement
specific security measures for the respective hotels.” Id.
Hashwani, not Marriott, retained its own security company. Id. Hashwani was “solely
responsible for the creation and installation of a 132-foot setback security gate to protect the
hotel” and it “was responsible for interviewing and hiring security personnel to protect the
hotel.” Id. Marriott contends that “Hashwani independently implemented numerous security
measures at the hotel including the use of closed circuit television monitored 24 hours a day, the
use of underground security cameras to inspect all incoming vehicles at the set-back gate, hiring
of armed officials to patrol the property and the use of bomb sniffing dogs.” Id. Marriott “did
not hire or train any of the security personnel or any of the Hotel employees that responded to the
terrorist attack . . . [but it] did hire a third party auditor to perform random audits at franchised
hotels to assess compliance with Marriott’s crisis management plan.” Id.
The Plaintiffs filed suit in Maryland alleging that Marriott “retained complete control and
authority at its Maryland headquarters (where it developed security and training procedures) to
identify and respond to potential terrorist threats which its franchisees were required to follow.”
Doc. No. 29 at 5. Marriott maintains that the suit should be brought in Pakistan because the
“attack occurred on foreign soil, by international terrorists, at a hotel owned and operated by a
Pakistani corporation.” Doc. No. 23 at 4.
II.
Standard of Review
A court may dismiss on forum non conveniens grounds “where trial in the plaintiff’s
chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is
unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft Co. v.
3
Reyno, 454 U.S. 235, 249 (1981). “A forum non conveniens dismissal must be based on the
finding that, when weighed against plaintiff’s choice of forum, the relevant public and private
interests strongly favor a specific, adequate, and available alternative forum.” Tang v. Synutra
Int’l, Inc., 656 F.3d 242, 246 (4th Cir. 2011) (quotation omitted). “The defendant bears the
burden of persuading the court that the plaintiff’s choice of forum is sufficiently inconvenient to
warrant dismissal.”3 Millennium Inorganic Chems. v. Nat’l Union Fire Ins. Co., 686 F. Supp. 2d
558, 561 (D. Md. 2010) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), superseded
on other grounds by 28 U.S.C. § 1404); see also Tang, 656 F.3d at 249. “The court usually gives
less deference to a plaintiff that has not chosen to bring the case in its home country, but ‘this
lack of deference is muted when the defendant is a resident and citizen of the forum he seeks to
have declared inconvenient for litigation.’” Millennium Inorganic, 686 F. Supp. 2d at 561
(quoting Galustian v. Peter, 591 F.3d 724, 732 (4th Cir. 2010)).
III.
Analysis
The Fourth Circuit has established a three-part analytical framework to guide a court’s
analysis for a motion to dismiss on the basis of forum non conveniens. “A district court must
determine whether the alternative forum is: 1) available; 2) adequate; and 3) more convenient in
light of the public and private interests involved.” Tang, 656 F.3d at 248 (citing Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 241 (1981)). “Availability will ordinarily ‘be satisfied when the
defendant is amendable to process in the other jurisdiction.’” Id. (quoting Piper Aircraft, 454
U.S. at 255 n.22). “A foreign forum is adequate when (1) all parties can come within that
3
Marriott incorrectly argues that “the burden of showing that the venue is proper lies with the plaintiff.” Doc No.
23 at 4-5 (citing Silo Point II LLC v. Suffolk Construction Co., Inc., 578 F. Supp. 2d 807, 809 (D.Md. 2008)). Silo
Point does not announce that standard. Instead, Silo Point involved a motion to dismiss pursuant to Rule 12(b)(3)
based on a forum selection clause. Marriott appears to rely on case law for dismissal based on improper venue,
which requires a plaintiff to demonstrate that the choice of venue is proper, rather than cases that discuss dismissal
for forum non conveniens, which places the burden of persuasion on the defendant.
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forum’s jurisdiction, and (2) 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.”
Id. (quotation omitted).
“Although some courts conflate these issues, the availability and
adequacy of the supposed forum are better seen as raising independent issues that warrant
separate consideration by the court.” 14D CHARLES A WRIGHT,
ET AL.,
Federal Practice &
Procedure § 3828.3 (3d ed. 2007).
If a court finds that the alternative forum is both available and adequate, it must then
weigh the private and public interest factors. “The relevant private interest factors include: (1)
the relative ease of access to sources of proof; (2) the availability of compulsory process for
attendance of unwilling witnesses; (3) the cost of obtaining willing witnesses; and (4) other
practical problems involving efficiency and expense of trial.” Millennium Inorganic, 686 F.
Supp. 2d at 561 (citing Gulf Oil, 330 U.S. at 508-09). “A primary concern when evaluating the
private factors is to ensure that the plaintiffs did not select an inconvenient forum for the purpose
of harassing the defendants.” Id. “The public interest factors consist of the: (1) administrative
difficulties flowing from court congestion; (2) local interest in having localized controversies
decided “at home;” (3) interest in having the trial of a diversity case in a forum that is familiar
with the law that must govern the action; (4) avoidance of unnecessary problems in conflict of
laws, or in the application of foreign law; and (5) unfairness of burdening citizens of an unrelated
forum with jury duty.” Id. (citing Gulf Oil, 330 U.S. at 508-509).
a. Availability of an Alternative Forum
“Availability will ordinarily ‘be satisfied when the defendant is amendable to process in
the other jurisdiction.’” Tang, 656 F.3d at 248 (quoting Piper Aircraft, 454 U.S. at 255 n.22).
“Where the remedy offered by the alternative forum ‘is so clearly inadequate or unsatisfactory
5
that it is no remedy at all,’ however, the court ‘may conclude that dismissal would not be in the
interests of justice.’” Tang v. Synutra Int’l, Inc., Case No. DKC-09-0088, 2010 WL 1375373, at
*4 (D. Md. March 29, 2010), aff’d 656 F.3d 242 (4th Cir. 2011).
Marriott argues that an alternative forum is available in Pakistan, and it would stipulate to
jurisdiction and process in Pakistan if the Court dismisses this case and Plaintiffs file in Pakistan.
Doc. No. 23 at 8. Plaintiffs do not attack this argument.
During the hearing on the motion, Plaintiffs’ attorney suggested for the first time that
even if Marriott waives the statute of limitations defense as it indicated it will, Plaintiffs’ claims
may still be subject to dismissal. Compare Doc. No. 29 at 4 n.4 (“It should be noted that the
Pakistani Limitations Act of 1908 provides for a one year statute of limitations for claims under
the Fatal Accidents Act of 1855 . . . . However, Plaintiffs recognize that Marriott has stated . . .
that it would waive the statute of limitations in this circumstance) with Oral Argument at
Motions Hearing, March 26, 2012, at 12:24:50 (arguing that the Pakistani Limitations Act of
1908 cannot be waived).
Marriott did not address this new argument at the hearing and
maintains that it will waive any statute of limitations defense in Pakistan.
As a general rule, the Fourth Circuit has held that “if the statute of limitations has expired
in the alternative forum, the forum is not available, and the motion to dismiss based on forum
non conveniens would not be appropriate.”
Compania Naviera Joanna, SA v. Koninklijke
Boskalis Westminster NV, 569 F.3d 189, 202 (4th Cir. 2009) (citing Kontoulas v. A.H. Robins
Co., 745 F.2d 312, 315 (4th Cir. 1984)). There is, however, a recognized exception to this rule.
An alternative forum will be considered available in instances where a plaintiff makes a tactical
decision not to litigate in the alternative forum. See id. (“A party should not be allowed to assert
the unavailability of an alternative forum when the unavailability is a product of its own
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purposeful conduct.”) (quotation and bracketing omitted); see also Veba-Chemie A.G. v. M/V
Getafix, 711 F.2d 1243, 1248 n.10 (5th Cir. 1983) (holding that a court is permitted to disregard
a statute of limitation bar where “the plaintiff’s plight is of his own making—for instance, if the
alternative forum was no longer available at the time of dismissal as a result of the deliberate
choice of an inconvenient forum”); Castillo v. Shipping Corp. of India, 606 F. Supp. 497, 504
(S.D.N.Y. 1985) (“It would be a strange world if a litigant could “bootstrap” himself into a New
York court by missing the statute of limitations in the proper forum.”).
This exception to the rule clearly applies in this case. Although it is not clear whether the
Plaintiffs’ claims would be barred in Pakistan based on Marriott’s proffered waiver, the fact
remains that the Plaintiffs decided not to litigate in Pakistan “presumably based on [their]
assessment that [they are] unlikely to benefit substantially in doing so—and accordingly [have]
deliberately allowed any deadline for filing claims there to pass.” Compania Naviera, 569 F.3d
at 202-03. A plaintiff should not be permitted to allow the statute of limitations to run in a forum
that has jurisdiction over the parties and most of the witnesses in order to bring a claim in an
inconvenient forum. If courts were to condone this action, defendants would be forced to defend
themselves in inconvenient forums with longer statutes of limitations based on strategic
decisions made by plaintiffs to avoid a particular forum.
Thus, Pakistan is an available,
alternative forum.
b. Adequacy of the Foreign Forum
A foreign forum is adequate if two conditions are met: (1) all parties must be able to
come within that forum’s jurisdiction and (2) all parties must “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.” Tang, 656 F.3d at 248. “[C]ourts generally agree that only the most perilous
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obstacles to conducting litigation, evidenced by a complete absence of due process in the
alternative forum, will render the alternative forum inadequate.” Tang, 2010 WL 1375373, at *4
(citations and alterations omitted).
Marriott argues that Pakistan is an adequate forum. It attaches an affidavit of Ahsan
Zahir Rizvi, the Senior and Managing Partner of a Pakistani law firm, which discusses the
Pakistani legal system, the claims that the Plaintiffs could bring, and the ability of the Plaintiffs
to recover damages and enforce their judgment. He maintains that the Islamabad High Court of
Pakistan offers a clear process and remedy for resolving this dispute. Doc. No. 23, Ex. D ¶ 5.
He claims that Pakistan recognizes tort liability under the Fatal Accidents Act of 1885. Id. Any
claim brought in excess of Rs. 2,500,000 ($30,000) will be assigned to the Islamabad High
Court. Id. ¶ 6. He contends that Pakistan’s legal system is capable of enforcing a judgment if
Plaintiffs ultimately prevail. Id. Finally, he maintains that “Plaintiffs do not have to appear in
court and may do all filings through their attorneys. Accordingly, if this case were tried in
Pakistan, there would be no need for the Plaintiffs to actually travel to Pakistan.” Id. ¶ 8.
Plaintiffs argue that the alternative forum is inadequate because “the emotional trauma
and fear for their safety that will undoubtedly arise if they are forced [to] litigate this matter in
Pakistan is immeasurable.” Doc. No. 29 at 9. In support of this contention, the Plaintiffs attach
multiple declarations stating that they have an “extreme fear” of traveling to Pakistan. Id., Ex.
D. Plaintiffs maintain that they “would not travel to Pakistan for any purpose, including but not
limited to hiring the appropriate lawyer to handle the case or attending the trial in the matter.”
Id. Plaintiffs also attached Department of State travel warnings from 2011, Ex. E, which indicate
that it may be unsafe to travel to Pakistan because terrorist groups continue to seek opportunities
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to attack locations where United States citizens and Westerners are known to congregate.4
Additionally, Plaintiffs indicate that according to the South Asia Terrorism Portal 2,428 civilians
were killed in Pakistan in 2011 due to terrorism related violence. Ex. G.
The issue of fear of violence creating an inadequate forum appears to be an issue of first
impression in the Fourth Circuit. The Second Circuit, however, has considered emotional stress
and fear of physical harm as factors to consider in a forum non conveniens analysis. See, e.g.,
Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, (2d Cir. 2000) (“[T]he emotional burden
on Plaintiffs of returning to the country where they or their loved ones were shot in an act of
religious terrorism provide additional weight for favoring Plaintiffs’ choice of their home forum
for this litigation.”); Rasoulzadeh v. Assoc. Press, 574 F. Supp. 854, 861 (S.D.N.Y. 1983)
(denying a motion to dismiss for forum non conveniens because the court found that plaintiffs
would likely be shot if they brought their claim in Iran); aff’d 767 F.2d 908 (2d Cir. 1985).
Nevertheless, the burden of proving an adequate forum is low, and the Fourth Circuit has
never found that a fear of violence in a foreign country alone creates an inadequate forum. The
Fourth Circuit has held that it is rare that “‘the remedy offered by the other forum is clearly
unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement
may not be satisfied.’” Tang, 656 F.3d at 249 (citing Piper Aircraft, 454 U.S. at 254); see also
Tang, 2010 WL 1375373, at *4 (finding that a forum is inadequate only if there are “perilous”
obstacles such as a complete absence of due process). Mr. Rizvi indicates that these factors are
not present here. Plaintiffs have a cause of action in tort that they can bring in a Pakistani court.
He claims that they will be able to enforce their judgment if they are successful on the merits.
4
The State Department issued an updated travel warning regarding Pakistan on February 2, 2012, which contains
the
same
warnings
regarding
violence
and
intolerance
towards
Westerners.
See
http://travel.state.gov/travel/cis_pa_tw/tw/tw_5661.html (last visited April 17, 2012).
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Finally, if this case were tried in Pakistan, there would be no need for the Plaintiffs to actually
travel to Pakistan. Doc. No. 23, Ex. D.
Additionally, neither Guidi nor Rasoulzadeh found that a fear of violence was dispositive
in deciding that an alternative forum was inadequate, but rather it was one factor that a court
should consider. Therefore, while the Plaintiffs have expressed a real fear of traveling to
Pakistan because of what happened to their loved one and the current threat of violence, this
factor is not outcome determinative. Thus, this Court must weigh the private and public interest
factors.
c. Private Interest Factors
Marriott argues that all private interests that the Court must consider weigh in its favor
and necessitate dismissal of this case. Doc. No. 23 at 10-16. Plaintiffs maintain that there is “no
evidence to support, nor has [Marriott] alleged, that Plaintiffs have chosen this forum in order to
harass” Marriott. Doc. No. 29 at 14. Plaintiffs maintain that the private interests support
maintaining the litigation in Maryland. Marriott’s argument is more persuasive.
i. Ease of Access to Sources of Proof
Marriott alleges that “[a]ll material sources of proof in this case are located in Islamabad,
Pakistan.” Doc. No. 23 at 10. It relies on Niv v. Hilton Hotels Corp., 710 F. Supp. 2d 328
(S.D.N.Y. 2008) for the proposition that this factor weighs heavily in favor of dismissal.
Plaintiffs respond that “[w]hile relevant documents might exist in Pakistan, substantially similar
documents certainly exist within the control of [Marriott].” Doc. No. 29 at 15. Plaintiffs
contend that the Marriott can obtain any information that it needs to proceed to trial in the United
States.
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“In weighing the ease of access to evidence, the Court focuses on the specific evidence
relevant to the precise issues that are likely to be actually tried.” Niv, 710 F. Supp. 2d at 339.
Marriott contends that all relevant and necessary sources of proof that give rise to the incident
require investigating the actions of security personnel when confronted by the terrorist attack.
Marriott maintains that the following types of witnesses are required: “police officers, hotel
security, hotel employees, local engineers, and the hotel manager” all of whom are located in
Pakistan. Doc. No. 23 at 11. Additionally, “[c]ritical evidence pertaining to this terror attack
includes the official investigation documents from the ISI, Federal Intelligence Agency,
Intelligence Bureau, and Islamabad police.” Id.; Ex. D ¶ 9. Marriott maintains that “[a]dditional
sources of proof include: (1) the incident scene itself, (2) the location of the anti-terror perimeter
barrier that stopped the truck, (3) statements by Pakistani employees, managers, and security
personnel of the hotel, (4) Pakistani government documents relating to the standard of care for
security in Pakistani hotels, and (5) records related to security protocol and training at the hotel.”
Id. at 12. Marriott contends that among other issues, the Plaintiffs need to “obtain discovery
from hotel personnel, local architects[,] and contractors responsible for anti-terror measures to
determine” whether the facility complied with local ordinances. Id. at 13. These witnesses and
information are found almost exclusively in Pakistan.
Plaintiffs’ argument that “[t]he majority of the critical witnesses and documentary
evidence is located in or can easily be produced in the United States” appears incorrect. Doc.
No. 29 at 17. Plaintiffs argue that (1) Mr. Orlob, leader of the hotel’s security team is located in
the United States and has knowledge of the events at issue; (2) CCTV video of the bombing can
be found on youtube; (3) aerial photographs or other demonstrative evidence allow for inspection
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of the hotel; and (4) security members present during the day of the bombing are now dead. Id.
at 15-16.
Although Marriott likely overstates its case that all material sources of proof are
overseas, this factor weighs heavily in its favor. The specific evidence relevant to the issues that
need to be tried, including actions of the local security company, hotel and barrier construction,
and oversight by hotel employees who were not hired by Marriott, are located in Pakistan and are
essential to the issue of negligence and any third-party claims.
ii. Other Private Interest Factors
Marriott maintains that the majority of witnesses reside in Pakistan, and the Pakistani
courts will not assist this Court in compelling witnesses to appear in Maryland to testify. Doc.
No. 23 Ex. D ¶ 17. It contends that the cost of producing willing witnesses for depositions and
trial would be “overwhelming and unduly burdensome, if not impossible.” Doc. No. 23 at 15.
Marriott indicates that most of the material witnesses speak only Urdu and translation services
would be costly. Id. Marriott also contends that it plans to implead third-party defendants who
are individuals or companies located in Pakistan.
Plaintiffs argue that Marriott fails to allege that witnesses would be unavailable or
unwilling to testify and that translation costs are overstated because a majority of the witnesses
and information necessary for trial are located in Maryland. Plaintiffs maintain that Marriott has
failed to demonstrate how it will be prejudiced by not bringing the third-party claim
simultaneously with Plaintiffs’ claim.
In Tang, Chief Judge Deborah Chasanow found that the private interest factors weighed
in favor of an alternative Chinese forum in a situation largely analogous to this one. A group of
plaintiffs brought a products liability action in this Court against a group of Chinese dairy
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companies responsible for the production of tainted milk. Judge Chasanow found that the
private interest factors supported the conclusion that China was a more appropriate forum,
because
the Chinese forum would have the power to compel the testimony
of unwilling witnesses and the cost of producing willing witnesses
would be significantly reduced there. The present forum, by
contrast, could not compel the testimony of Chinese witnesses and
would pose substantial expense and inconvenience. Many of the
witnesses would speak only Chinese and much of the documentary
evidence would be written in that language, thereby necessitating
translation of not only all the documentary evidence but also the
testimony of most witnesses from Chinese to English if the suit
were to proceed here. Furthermore, Defendants assert a desire to
implead allegedly responsible Chinese third parties that would be
beyond the jurisdiction of this Court. While Defendants could
bring indemnification or contribution claims in China if Plaintiffs
were successful in the litigation here, proceeding in that manner
would be unduly burdensome and inefficient here.
Tang, 2010 WL 1375373, at *12. Similar reasons exist here to find that the other private interest
factors favor Marriott.
Here, Marriott has demonstrated that the private interests weigh in its favor. This Court
lacks the power to compel testimony of unwilling Pakistani witnesses. Many of the witnesses
that Marriott indicates it will call speak Urdu and translation costs for the witnesses and
documents from Urdu to English will be expensive.
Although Marriott could bring its
indemnification claim in Pakistan if Plaintiffs are successful here, proceeding in that manner
would be unduly burdensome and inefficient. Although Plaintiffs contend that a majority of the
testimony and documentation is in English and could be located at Marriott’s headquarters, they
appear to ignore Marriott’s position. Marriott contends that discovery will necessarily involve
hotel employees located in Pakistan who are not employed by it, government employees,
military personnel, local contractors charged with security at the hotel, and hotel patrons who
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survived the bombing. Plaintiffs oversimplify their case into one where they need only to depose
corporate officials in Maryland and obtain documentation concerning Marriott’s security
policies, when that simply is not the case.
d. Public Interest Factors
Each party contends that the public interests weigh in its or their favor. On balance, a
majority of these factors favors Marriott.
i. Administrative difficulties flowing from court congestion
The administrative requirements for this action would not likely overburden this Court.
This district ranks thirty-fourth among all district courts in the total number of civil filings per
judgeship. See Doc. No. 23 Ex. F. There is nothing to indicate that this Court could not manage
an additional case.
ii. Local interest in having localized controversies decided at home
Marriott contends that Pakistan has a substantial interest in having a controversy arising
out of a terrorist attack in Islamabad decided by its own judicial system. Doc. No. 23 at 17-18.
Plaintiffs argue that the local interest of Pakistan is “sharply outweighed” by the local interests of
Maryland. Doc. No. 29 at 22-23. They maintain that this interest arises out of the United States’
interest in protecting its citizens. Marriott’s argument is more persuasive.
Plaintiffs’ Amended Complaint alleges that the terrorist incident in this case has been
referred to as “Pakistan’s 9/11.” See Am. Compl. ¶ 25. According to the BBC news, the attack
killed 56 people from around the world, injured at least 266, and involved the largest amount of
explosives used in a terrorist strike in Islamabad. See Doc. No. 23 Ex. C. The attack occurred
near the Pakistani Parliament building and the Prime Minister’s home. Reports indicate that the
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attack was meant to harm Pakistani leadership, including the Prime Minister, who had planned to
meet in the hotel. See id. Ex. E at 4-5.
Although Plaintiffs are correct that a United States District Court has an interest in
protecting the rights and safety of American citizens, these interests are outweighed by
Pakistan’s interests in this matter. Pakistan has a strong interest in providing safety and security
for its citizens and those individuals who visit the country. It also has an interest in determining
liability against anyone responsible for Mr. DiFederico’s death, the death of fifty-five other
people, and the attempted attack on government officials. Pakistan, and not this Court, appears
to have a greater interest in resolving the worst terrorist attack in its history through its own
judicial process.
iii. Interest in having the trial of a diversity case in a forum that is
familiar with the law that must govern the action
Marriott argues that the trial of a diversity case that arose in Pakistan should occur in
Pakistan because courts there are familiar with the foreign law that governs this case. Doc. No.
23 at 19-20. Plaintiffs maintain that while proof of foreign law may be a burden in this case, it
alone is not enough to push the balance of convenience in its favor.
Plaintiffs’ are correct that proof of foreign law is not a per se reason for tipping the
balance of convenience in Marriott’s favor. See Millennium Inorganic, 686 F. Supp. 2d at 563
(finding that the fact that the court would need to interpret Australian law alone was insufficient
to support dismissal where the legal issues were straight forward). However, this Court’s
unfamiliarity with Pakistani law supports Marriott’s argument that Pakistan is a more appropriate
forum for this matter.
Here, the Court would have to interpret legal principles of Pakistan in light of the
judgments and precedent of the High Courts of Islamabad and all the provinces of Pakistan and
15
the Supreme Court of Pakistan. Doc. No. 23 Ex. D ¶ 18. It is likely that the Court would need to
have a foreign law expert available, which supports dismissing this case to allow a court more
familiar with the law that must be applied to adjudicate this matter.
iv. Avoidance of unnecessary problems in conflict of laws, or in the
application of foreign law
When determining whose substantive law applies to diversity claims, a district court
applies the conflict of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496-97 (1941). Since the Court is located in Maryland, Maryland’s conflict
of law rules apply. Maryland adheres to the lex loci delicti rule in analyzing choice of law issues
with respect to causes of action arising in tort. See Philip Morris Inc. v. Angeletti, 358 Md. 689,
752 (2000). “Lexi loci delicti dictates that when an accident occurs in another state, substantive
rights of the parties, even though they are domiciled in Maryland, are to be determined by the
law of the state in which the alleged tort took place.” Id. (quotation omitted); see also Baker v.
Booz Allen Hamilton, 358 F. App’x 476, 480-81 (4th Cir. Dec. 28, 2009) (finding that Kyrgyz
law applied to a negligence claim arising out of an alleged sexual assault that occurred in
Kyrgyzstan, provided that requirements of federal procedural rules governing determination of
foreign law were met).
Here, the alleged tort occurred in Pakistan where the terrorist bombing killed and
wounded individuals at the hotel. Even if the Plaintiffs intend to argue that the training or
security recommendations came from Marriott’s headquarters in Maryland, under Maryland’s lex
loci delicti rule, Pakistani law would apply to this action. Marriott correctly notes that the Court
“will be faced with the daunting, burdensome task of applying Pakistani law.” Doc. No. 23 at
21. Plaintiffs respond that the Court is capable of interpreting Pakistani law and that there would
16
be no language barrier to understanding Pakistani law because one of Pakistan’s official
languages is English.
On balance, this factor weighs heavily in Marriott’s favor. This Court will need to apply
Pakistani law which will involve interpreting (1) decisions from Islamabad’s High Court and
Pakistan Supreme Court, (2) Pakistani statutes including the Fatal Accidents Act of 1855 and
Pakistani Hotels and Restaurants Act of 1976, and (3) local ordinances. This Court has no
experience with Pakistani law, and it would be more practical and economical for Pakistani
courts to handle this matter. See Tang, 2010 WL 1375373, at * 13 (finding that the court “would
be substantially burdened with attempting to untangle problems in conflict of laws, and in law
foreign to itself, while the same concerns would not be presented in China”) (quotation omitted).
v. Unfairness of burdening citizens of an unrelated forum with jury duty
Marriott argues that “imposing jury service on the citizens of this forum for a dispute
involving an international company for injuries inflicted abroad is unwarranted.” Doc. No. 23 at
22-23. Plaintiffs respond that “Maryland has a connection to both Plaintiffs and the Defendant.
Plaintiffs are United States citizens and Marriot’s headquarters is located in Maryland.” Doc.
No. 29 at 24.
Plaintiffs rely on Mercier v. Sheraton Int’l Inc., 935 F.2d 419 (1st Cir. 1991) to support
their argument that this case is related to the District of Maryland. In Mercier, the First Circuit
reversed the district court’s determination that Turkey was a more suitable forum for a contract
dispute arising between the parties, an American citizen and an American company. The court
found that that the defendant failed to satisfy its burden that an adequate alternative forum
existed because defendant failed “to state expressly that Turkish law recognizes claims for
breach of contract and tortious interference with contract—or some analogous action.” Id. at
17
425. The court went on to discuss private and public interest factors and found that the parties’
citizenship and relationship to the United States were factors that related the matter to the United
States. Id. at 430. The court concluded that imposing jury duty in the case would “at least
broadly serve the goal of limiting jury duty to a community with an interest in the litigation.” Id.
Plaintiffs’ reliance on Mercier appears misplaced. Mercier involved a lawsuit arising out
of a contract dispute between parties that resided in the United States. Here, however, that local
character is lacking. Plaintiffs are suing Marriott in a tort action for events occurring at a
Pakistani hotel owned and operated by a franchisee of Marriott and over whose security
procedures it maintains little control. It would be burdensome to have members of a jury hear
evidence regarding a terrorist attack that has little to do with this forum other than the fact that
Marriott’s headquarters is in Maryland.
On balance, the public factors weigh in Marriott’s favor. Adjudicating the Plaintiffs’
claims here involves (1) the Court deciding tort liability for one of Islamabad’s worst terrorist
attacks which would require the application of Pakistani law, (2) the burden of resolving
complex issues in conflicts of laws, and (3) the unfairness to the citizens of this forum to sit on a
jury for events rising out of a terrorist attack in a foreign county. Even though this case would
not likely present administrative burdens arising from the Court’s congestion, and one could
argue that citizens of this forum would not be burdened by sitting as a jury in this case, the Court
finds that the public interest factors weigh in Marriott’s favor.
IV.
Conclusion
The burden on Marriott in defending this case in Maryland is heavy, and the Plaintiffs’
choice of forum is sufficiently inconvenient to warrant dismissal. If the case were to proceed
here, Marriott would have to defend against claims arising from alleged acts or omissions by
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third parties in a distant foreign country. The case would likely require the testimony of
Pakistani citizens, which this Court cannot compel to appear before it; a majority of the sources
of proof are in Pakistan; and Marriott’s inability to implead third parties would prejudice it by
not having before the jury those independent entities tasked with securing the hotel. Although
the Court is cognizant of the terrible attack and the tragic loss suffered by Plaintiffs, Pakistan is
the proper forum for adjudicating this matter.
For the foregoing reasons, Marriott’s motion to dismiss will be granted. A separate order
follows.
April 25, 2012
Date
/s/
Roger W. Titus
United States District Judge
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