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Stromberg v. Marriott International

February 7, 2007

FINN STROMBERG, PLAINTIFF,
v.
MARRIOTT INTERNATIONAL, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiff Finn Stromberg, a citizen of the Kingdom of Norway, was injured in an automobile accident in Mexico on September 13, 2001. The accident occurred when he was traveling in a taxi that had been hailed on his behalf by employees at the Courtyard by Marriott hotel located near the Monterrey, Mexico, airport ("Monterrey Courtyard"), where he had stayed the previous night. In September 2004, Stromberg commenced a civil action in the District of Columbia Superior Court against several defendants, including Marriott International, Inc. ("Marriott"), which action Marriott removed to this court. The complaint brings claims of fraud, conspiracy, negligence, and breach of contract, all arising from the events leading up to and surrounding the car accident. Before the court is Marriott's motion to apply Mexican law and for summary judgment, or, in the alternative, to dismiss under the doctrine of forum non conveniens [#25]. Upon consideration of the motion, the opposition thereto, and the record of the case, the court concludes that the District of Columbia is not the appropriate forum for litigation of Stromberg's claims. Accordingly, the court will grant the motion to dismiss this case.

I. BACKGROUND

Stromberg is a photographer. Immediately after the terrorist attacks in the United States on September 11, 2001, his employer asked him to travel to New York City to take photographs at the World Trade Center site. Unable to fly directly to the United States, Stromberg flew to Monterrey, Mexico, where he planned to embark on an overland journey to the States and eventually to New York. He checked in for the evening on September 12, at the Monterrey Courtyard, which is owned and operated by Inversions Del Aeropuerto, S.A., D.E., C.V., T/A Courtyard by Marriott ("IDA"), under a franchise agreement with Marriott. Upon arrival, he asked the hotel staff for a wake-up call and a taxi to take him to the U.S.-Mexican border early in the morning.

A taxi, owned and operated by Tansportadora Los Sabinos Division Especializados De C.V. SA ("TLS"), was waiting at the appointed time. It had been summoned from the Apodaca taxi base and its driver was Jose Luis Lozoria Martinez. En route to the border, the taxi collided with a wheel that had fallen off a government-owned bus. Plaintiff then took a replacement cab to the border.

Pursuant to this civil action, Stromberg brings claims against Marriott, IDA, TLS, Jose Juis Lozoria Martinez, and the taxi base. Service has been effected, however, only as to defendant Marriott, and therefore only the claims against it are properly before the court. In moving for summary judgment, or, in the alternative, for dismissal under the doctrine of forum non conveniens, Marriott argues (1) that Mexico law applies to this action, and thereunder, all Sromberg's claims fail, and (2) that Mexico offers an adequate alternate forum for litigation of these claims, and that the public and private factors courts consider when reviewing forum non conveniens motions favor dismissal.

II. ANALYSIS

A. The Forum Non Conveniens Doctrine

Whether to dismiss a case under the forum non conveniens doctrine is a discretionary decision that can be made at any time. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (discretionary decision); L & L Const. Assocs., Inc. v. Slattery Skanska, Inc., No. 05-1289, 2006 WL 1102814, at *3 (D.D.C. Mar. 31, 2006) (flexibility to make decision at any time). The doctrine "permits a court to dismiss an action over which it has jurisdiction when there is an adequate alternative forum in which the case can be more conveniently heard." BPA Int'l, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 84--85 (D.D.C. 2003) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)).

Application of the doctrine involves two inquiries. First, the court determines whether an adequate alternative forum exists. In making this determination, the court asks preliminarily whether the defendant is amenable to process in the foreign jurisdiction. Friends for All Children v. Lockheed Aircraft Corp., 717 F.2d 602, 607 (D.C. Cir. 1983). In rare cases, the alternative forum may be inadequate because "the remedy offered by the other forum is clearly unsatisfactory." Reyno, 454 U.S. at 254 n.22; see Nemariam v. Fed. Democratic Republic of Ethiopia, 315 F.3d 390, 395 (D.C. Cir. 2003) (reversing dismissal for forum non conveniens because plaintiff lacked a personal right to any remedy the alternative forum could provide and that remedy could be reduced by competing claims). However, a remedy will not be considered inadequate merely because the other forum presents the "possibility of an unfavorable change in law." Reyno, 454 U.S. at 249; In Re Disaster at Riyadh Airport, 540 F. Supp. 1141, 1145 (D.D.C. 1982) (a potentially smaller damage award and an inability to rely on a particular theory of liability do not render a forum inadequate).

Second, the court looks to a series of public and private factors to determine whether, when balanced against the presumption in favor of the plaintiff's choice of forum, those factors favor dismissal. El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676--77 (D.C. Cir. 1996). "If the balance favors the foreign forum, and if the Court is convinced that plaintiff effectively can bring its case in the alternative forum, the Court may dismiss the case on grounds of forum non conveniens." KPMG Fin. Advisory Servs. Ltd. v. Diligence LLC, No. 05-2204, 2006 WL 335768, at *1 (D.D.C. Feb.14, 2006) (citing Pain v. United Techs. Corp., 637 F.2d 775, 785-86 (D.C. Cir. 1980)). "The defendant has the burden on all aspects of a motion to dismiss on forum non conveniens grounds, including the obligation to establish as a prerequisite that an adequate alternative forum exists." Ibid.

B. Application

1. Adequate Alternative Forum

Does Mexico offer an adequate alternative forum? The parties do not dispute that defendants are amenable to process in Mexico (and Marriott has stipulated to submit to service of process there), and courts have deemed Mexican courts adequate for forum non conveniens purposes in similar circumstances. See, e.g., Gonzales v. Chrysler Corp., 301 F.3d 377, 382 (5th Cir. 2002). Nonetheless, Stromberg argues that Mexico is an inadequate forum because it would offer him no remedy at all against Marriott. By his account, he would not be able to prove his case in Mexico because Mexican statutory law "does not allow for vicarious liability" in a manner that would render his claims against Marriott viable. Of course, this argument presupposes that if Stromberg's claims were litigated in this court, those claims would not be reviewed under Mexican law. The validity of that assumption depends on the application of the ...


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