Murphy v. BMP Three, Ltd.

Filing 33

Judge Richard G. Stearns: ORDER entered denying 28 Motion to Dismiss pursuant to the doctrine of forum non conveniens. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 07-CV-11492-RGS
KATHLEEN MURPHY
v.
BMP THREE LTD.
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS PURSUANT TO THE
DOCTRINE OF FORUM NON CONVENIENS
April 11, 2011
STEARNS, D.J.
BACKGROUND
On August 13, 2007, plaintiff Kathleen Murphy, a resident of Massachusetts,
filed this Complaint grounded on diversity jurisdiction in the District of Massachusetts.
The action arises from a slip and fall at the Wyndham Nassau Resort & Crystal Palace
Casino in Nassau, Bahamas, a hotel operated under a Wyndham franchise by a
Bahamas-based corporation, defendant BMP Three Ltd. (BMP).
The facts alleged are these. Sometime in the early morning of February 8, 2006,
Murphy, then a guest at the hotel, slipped and fell in a puddle of water that had
collected in or near a stairwell in the bathroom area of the hotel’s sports complex.

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Murphy suffered serious injuries.1 She claims there was no sign to alert her to the
puddle, nor were handrails installed in the stairwell. In her two-count Complaint,
Murphy alleges negligence (Count I), and failure to warn (Count II). On March 8,
2011, BMP filed a motion to dismiss based on forum non conveniens, agreeing to
waive any statute of limitations defense to the refiling of the lawsuit in the Bahamas.
DISCUSSION
There is a strong presumption favoring the “home” forum selected by a U.S.
citizen plaintiff in a case brought against a foreign defendant. Mercier v. Sheraton
Int’l, Inc., 981 F.2d 1345, 1355 (1st Cir. 1992). As a consequence, unlike a motion to
dismiss for lack of personal jurisdiction where the plaintiff bears the burden of proving
jurisdiction, when moving to dismiss for forum non conveniens, a foreign defendant
bears a “heavy” burden of showing that considerations of convenience and judicial
efficiency “strongly favor” dismissal. Adelson v. Hananel, 510 F.3d 43, 52 (1st Cir.
2007). See also Howe v. Goldcorp Investments, Ltd., 946 F.2d 944, 951 (1st Cir.
1991).
In deciding the motion, a court looks in the first instance to the availability and
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A report completed by the hotel’s security department states that the accident
occurred at around 3:05 a.m. According to the report, Murphy refused medical
assistance, but was taken to her room by wheelchair. The report describes Murphy as
“a lady lying on the floor who appeared to be intoxicated, because every time she tried
to get up she kept falling.”
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adequacy of an alternative forum. See Iragorri v. Int’l Elevator, Inc., 203 F.3d 8, 13
(1st Cir. 2000). Although Murphy maintains that BMP has not shown that she would
be entitled to as full a redress under Bahamian law as she could expect in a
Massachusetts state court, the argument seems somewhat beside the point as it would
seem likely that Bahamian law would apply regardless of the forum in which the case
is to be tried. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-632
(1985) (adopting the “functional” approach of Restatement (Second) Conflict of Laws).
Assuming the existence of an adequate alternative forum, the defendant still
“must show that the compendium of factors relevant to the private and public interests
implicated by the case strongly favors dismissal.” Irragori, 203 F.3d at 12. 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; [and the] possibility of a view of the premises, if view would be
appropriate to the action.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
Murphy resides in Massachusetts, as do her five treating physicians. BMP
maintains that “most of the pertinent evidence and witnesses,” including (not
unexpectedly) all of the defense witnesses, and “evidence of the site of the alleged
accident” are in the Bahamas. See Def.’s Mem. at 3; Affidavit of Vann Gaitor ¶6.
Murphy quite accurately notes that only two material trial witnesses live in the
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Bahamas. Both are employees of BMP and can be deposed prior to trial. Pl.’s Br. at
4. On the flip side of the coin, it is far more likely that BMP can overcome the
hardships imposed by the lack of compulsory process than can Murphy. Nor does
Murphy believe that a viewing of the situs of the accident is indispensable (she is
willing to rely on photographs instead).2
The court must also weigh the public interest factors, including any burdening
of the court’s docket, access to the forum by interested citizens, the trier’s relative
familiarity with the appropriate rules of decision, the burdens of jury duty, and the goal
of “having local controversies decided at home.” See Irragori, 203 F.3d at 12, quoting
Gilbert, 330 U.S. at 508-509. The only one of these considerations that would appear
to have any heft is the last and it favors trial of the case in Massachusetts. Because the
plaintiff’s choice should rarely be disturbed unless the balance of factors strongly
favors the defendant, see id. at 508, BMP’s motion will be denied.
ORDER
For the foregoing reasons, Defendant’s Motion to Dismiss Pursuant to the
Doctrine of Forum Non Conveniens is DENIED.
SO ORDERED.

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In the court’s experience, views are almost never taken in U.S. civil trials in
any event (although the Bahamian courts may follow a different practice).
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/s/ Richard G. Stearns
_________________________
UNITED STATES DISTRICT JUDGE

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