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Irwin v. World Wildlife Fund

August 22, 2006

NANCY R. IRWIN AND OLIVIER MISSA, PLAINTIFFS,
v.
WORLD WILDLIFE FUND, INC. DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiffs, Nancy Irwin and Olivier Missa, filed this action against defendant, the World Wildlife Fund, Inc., alleging breach of contract and negligence in violation of Gabonese law. Specifically, plaintiffs allege that defendant is responsible for a boating accident in the N'dogo Lagoon in Gamba, Gabon, which resulted in serious injury to Ms. Irwin. Plaintiffs filed their claims in this Court pursuant to 28 U.S.C. § 1332(a). Ms. Irwin is a citizen of the United Kingdom, Mr. Missa is a citizen of Belgium, defendant is a citizen of the United States, and the amount in controversy exceeds $75,000. Plaintiffs reside in Aberdeen, Scotland. Defendant's headquarters and principal place of business are located in the District of Columbia.

Pending before the Court is defendant's motion to dismiss plaintiffs' complaint on the ground of forum non conveniens. Defendant argues that other than the fact that its headquarters is located in the District of Columbia, there is no nexus between this forum and the facts of this case: plaintiffs are not citizens of the United States, all of the events occurred in Gabon, all of the critical evidence is located in Gabon, the accident was investigated by Gabonese authorities, Ms. Irwin was initially treated in Gabon, and the likely responsible party -- the driver of the boat that collided with plaintiffs' boat -- presumably resides in Gabon. Plaintiffs respond, primarily, that their choice of forum is entitled to deference because Ms. Irwin's precarious medical condition prevents her from traveling to Gabon without risking major medical complications or even death. Plaintiffs also argue that Gabon is not an adequate forum and that private interest factors weigh in favor of litigating the case in the District of Columbia.

Upon consideration of defendant's motion, and the response and reply thereto, the Court concludes that the District of Columbia is not the appropriate forum to litigate plaintiffs' claims. In addition to consideration of the relevant legal factors, the Court's determination is based upon defendant's assurances that it will waive any procedural obstacles in the plaintiffs' commencement of a lawsuit against defendant in Gabon, defendant's motion to dismiss (Def.'s Mot.) at 7, and its willingness to enter into an agreement with plaintiffs' counsel that Ms. Irwin's pretrial testimony would take place in Scotland. Defendant's reply at 11. Therefore, defendant's motion to dismiss is GRANTED, subject to the above concessions.

I. BACKGROUND

Plaintiff Irwin is a highly-trained zoologist, who, until the tragic events that give rise to this action, was a Commonwealth University scholar and doctoral candidate at the University of Queensland in Brisbane, Australia. Compl. at ¶ 6. Plaintiff Missa is a tropical ecologist and is married to Irwin. Id. at 7. In May of 2002, Ms. Irwin moved from Brisbane to Gamba, Gabon, to be with her husband, who had recently taken a position as a lab coordinator for the Smithsonian/EHTM biodiversity program. Id. Gamba is a town in Gabon located in the "Gamba Complex," a large, remote area located in Gabon. While in Gabon, Ms. Irwin continued research on her doctoral dissertation. Id.

Plaintiffs allege that in June of 2002, Missa arranged, through the Gabonese entity Cecotour, for a trip in a small wooden boat on a lagoon adjacent to Gamba for himself, Irwin, and two others. Compl. at ¶¶ 8-9. According to defendant, Cecotour has never been a corporate affiliate or subsidiary of defendant. Jamar Decl. at ¶ 6. Plaintiffs allege that Cecotour's actions are attributable to defendant because Mr. Missa booked the trip with an employee of the World Wildlife Federation's Gabon office and was instructed to make payment there. Compl. at ¶ 9. Defendant claims that it does not employ any person mentioned in the complaint. Jamar Decl. at ¶ 7.

Plaintiffs were scheduled to go on a boat trip at 6:30 p.m. on June 28, 2002, but the trip was delayed until 8:20 p.m. --after nightfall. Compl. at ¶¶ 9, 11. According to the police report obtained by defendant, at approximately 9:00 p.m., a second boat, piloted by Igor Bipakila and owned by Jean-Martin Rebellah ("Rebellah"), collided with the left side of plaintiffs' boat, which was piloted by a Gabonese citizen, Jean-Flavien Tchibinda. Jamar Decl. at ¶ 10.

The bow of the oncoming boat struck Ms. Irwin in the face, dislodging her orbital ridge and shattering her face. Compl. at ¶ 12. In addition, the bow of the oncoming boat hit metal supports in the boat Ms. Irwin occupied, and the metal supports impaled Ms. Irwin's skull and tattooed her skin. Id. Ms. Irwin also suffered additional injuries to her skull, shoulder, neck and spine. Id. Ms. Irwin's injuries are long-term, severe, painful, and extensive, and they include: loss of sensation and motor function, complete loss of smell and a diminished sense of taste, diminished cognitive skills, short-term and working memory loss, shattered sinuses, which cause complications with common infections, and diminished ability to perceive visual depth. Compl. at ¶ 18. Plaintiff Missa also suffered damages as a result of the accident, including the expenses incurred as a result of Irwin's injuries. Id. at ¶ 23.

Plaintiffs allege that the boat was not adequately prepared for the emergency because it lacked navigational lighting, and its passengers were not offered or told to wear life jackets, in violation of Gabonese law. Compl. at ¶ 11. Plaintiffs also allege that the boat did not have any form of communication, such as a functioning radio, and that the boat operator lacked adequate training in first aid and emergency planning. Id.

Plaintiffs seek an award of compensatory and punitive damages against the defendant.

III. DISCUSSION

When considering a motion to dismiss on the ground of forum non conveniens, the Court must first determine whether the proposed alternative forum is adequate. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947); Pain v. United Technologies Corp., 637 F.2d 775, 784 (D.C. Cir. 1980). If there is an adequate alternative forum, the Court must balance the private interests of the litigants in keeping the case in the District of Columbia or dismissing it in favor of the foreign court, and the interests of the public and the courts of this district in keeping the case here. See Gilbert, 330 U.S. at 508-09; Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 612 (6th Cir. 1984).

A. Because Plaintiff is Neither a Citizen Nor Resident of the United States, Plaintiffs' Choice of Forum ...


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