Iragorri v. United Technologies Corp., 3:94CV1673 JBA.

• Citation: 46 F.Supp.2d 159
• Decision Date: 31 March 1999
• Docket Number: No. 3:94CV1673 JBA.,3:94CV1673 JBA.
• Court: U.S. District Court — District of Connecticut
• Parties: Haidee IRAGORRI v. UNITED TECHNOLOGIES CORP., et al.

46 F.Supp.2d 159

Haidee IRAGORRI v. UNITED TECHNOLOGIES CORP., et al.

No. 3:94CV1673 JBA.

United States District Court, D. Connecticut.

March 31, 1999.

James G. Green, Jr., Anthony J. Natale, Pepe & Hazard, Hartford, CT, for Haidee Iragorri, Individually and as Ancillary Administratrix of Estate of Mauricio Iragorri on behalf of Decedent's Survivors, Patricia Iragorri, Maurice Iragorri, plaintiffs.

Edward W. Mayer, Jr., Edward T. Falsey, III, Delaney, Zemetis, Donahue, Durham & Noonan, Wallingford, CT, Patrick M. Noonan, Delaney, Zemetis, Donahue, Durham & Noonan, Guilford, CT, Karen L. Karpie, for United Technologies Corp., Otis Elevator Co., International Elevator, Inc., defendants.

RULING ON DEFENDANTS' RENEWED MOTION TO DISMISS BASED UPON FORUM NON CONVENIENS [DOC. # 99] AND PLAINTIFFS' MOTION TO PRECLUDE DEFENDANTS' RENEWED MOTION TO DISMISS [DOC. 97]

ARTERTON, District Judge.

In 1995, defendants, United Technologies Corporation ("UTC") and Otis Elevator Co. ("Otis"), filed a motion to join International Elevator, Inc.'s motion to dismiss based on forum non conveniens. [doc. # 22] On September 16, 1996, the Court denied this motion without prejudice to renew after discovery as to whether the defective elevator that caused Mr. Iragorri's death in Columbia was manufactured or designed in Connecticut. [doc. # 70] After such discovery and additional briefing, defendants have renewed their motion to dismiss, [doc. # 99] and plaintiffs have moved to preclude defendants from renewing their motion to dismiss based on forum non conveniens [doc. # 97]. All prior submissions by the parties related to the issue of whether this action should be dismissed for forum non conveniens grounds are incorporated and considered by the Court.

Factual Background

In 1992, Mr. Iragorri, a Florida domiciliary, was living with his family in Cali, Colombia when he fell five floors down an open passenger elevator shaft in an apartment building. The plaintiffs include Mr. Iragorri's widow and their two children, Patricia and Maurice.

On February 12, 1998, the Court dismissed International Elevator from this action for the lack of personal jurisdiction and transferred the case against International Elevator to the District Court of Maine.¹ [doc. # 95] The plaintiffs' claims against the two remaining defendants, Otis and its parent UTC, are asserted under two legal theories. The first is that Mr. Iragorri died as a result of International Elevator employee negligence while International Elevator was acting as Otis's agent. Secondly, plaintiff asserts that Otis is liable for a defect in the elevator's design which caused the elevator malfunction. Even though the elevator was manufactured and delivered by Otis of Brazil, plaintiff asserts that Otis may be found liable because of its relation with Otis of Brazil and its involvement in designing the elevator.

Discussion

The forum non conveniens analysis is a two step process. First, the court must determine if there is an adequate alternative forum and then must weight the public and private interest factors identified by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501. 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), "to determine which forum will be most convenient and will best serve the ends of justice." Peregrine Myanmar v. Segal, 89 F.3d 41, 46 (2d Cir.1996). There is ordinarily a strong presumption in favor of the plaintiff's choice of forum since dismissal for forum non conveniens is the exception rather than the rule. See Murray v. British Broadcasting Corp., 81 F.3d 287, 290 (2d Cir.1996). The decision whether to dismiss for forum non conveniens is "committed to the sound discretion of the trial court." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). As the Second Circuit recently observed, "[a]ppellate review of forum non conveniens is severely cabined." Alfadda v. Fenn, 159 F.3d 41 (2d Cir., 1998). "The decision lies wholly within the broad discretion of the district court and should be only reversed if that discretion has been clearly abused." Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir.1996). If a court focuses on all the Gilbert factors when reviewing a motion to dismiss based on forum non conveniens, its discretion is accorded "substantial deference" Piper Aircraft, 454 U.S. at 257, 102 S.Ct. 252.

While there is a strong presumption in favor of the plaintiff's choice of forum, this presumption may be overcome if 1) there exists an adequate alternate forum, and 2) the public and private factors outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) strongly point towards trial in another forum. See Allstate Life Ins., Co. v. Linter Group Ltd., 994 F.2d 996 (2d Cir.), cert. denied, 510 U.S. 945, 114 S.Ct. 386, 126 L.Ed.2d 334 (1993).

I. Adequate Alternate Forum

As the Second Circuit has noted: "[t]he requirement of an alternative forum is ordinarily satisfied if the defendant is amenable to process in the jurisdiction, except in "rare circumstances" when "the remedy offered by the other forum is clearly unsatisfactory." Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252 (dismissal would not be appropriate where the alternate forum does not recognize the cause of action)." Murray v. British Broadcasting Corp., 81 F.3d 287, 292 (2d Cir.1996).

At the November 19, 1998 oral argument, the defendant's counsel represented that defendants would submit to jurisdiction in Columbia and would waive any statue of limitations defense they might now have, conditions on which a court could condition dismissal based on forum non conveniens. See, e.g., Blanco v. Banco Indust. de Venezuela, 997 F.2d 974 (2d Cir.1993); Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998). Based on these representations, there is no inadequacy in the forum of Columbia as to those two considerations.

Plaintiffs also challenge the adequacy of Columbia as an alternate forum based on differences between Columbian and Connecticut law, specifically the damages typically awarded in wrongful death actions. That the law of the forum differs from American law should not ordinarily be given conclusive or even substantial weight in assessing the adequacy of the forum. See Piper Aircraft, 454 U.S. at 247, 102 S.Ct. 252. Assuming a Colombian court could and would exercise jurisdiction over the case, the Court must determine whether "the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all." Id. Here, plaintiffs do not claim that their action could not be brought in a Columbian court, but rather assert that the law of Colombia will not permit them as complete relief as they could obtain in an American forum. Plaintiffs contend that various limits on damages under Colombia law renders Colombia an inadequate forum. (Pl. Supp. Mem. of Law, dated Nov. 24, 1998 at 8; see also Pl. Mem. re: Choice of Law Analysis and Limitations of Damages under the Law of Colombia). In addition, plaintiffs contend that Colombian courts will provide inadequate relief as evidenced by recent cases in which plaintiffs recovered minimal wrongful death awards. (Id. at 8). The Court does not find these damage awards necessarily probative of the award likely in this case absent any contextual information on the universe of cases from which they were obtained or the facts and circumstances under which they were awarded. Moreover, mere differences in the magnitude of awards possible in Colombia does not render Colombia an inadequate forum. See e.g., Piper Aircraft, 454 U.S. at 246, 102 S.Ct. 252 (plaintiff may not defeat a motion to dismiss for forum non conveniens "merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum."); Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.1980)(significantly lower recovery in Trinidad courts compared with the U.S. District Court for the Southern District of New York did not render foreign forum inadequate).

Finally, plaintiffs raise lack of personal safety in Colombia as demonstrative of its inadequacy as a forum based on the March 1998 travel advisory issued by the U.S. State Department for Colombia, which "warns U.S. citizens against unnecessary travel to Columbia." (See Pl. Mem. of Law in Support of Motion to Preclude Defendants' Motion to Dismiss, Ex. B). "Although the adequate alternative forum inquiry is concerned with systemic inadequacy, at least two district courts have found that plaintiffs were unlikely to obtain justice in Ghana and Iran where the plaintiffs were political refugees who fled their counties and would face grave personal danger if they were to return." See Cabiri v. Assasie-Gyimah, 921 F.Supp. 1189 (S.D.N.Y.1996)(Ghana); Rasoulzadeh v. Associated Press, 574 F.Supp. 854 (S.D.N.Y.1983) (Iran). However in Tennecal Funding Corp. v. Sakura Bank, an unpublished Ninth Circuit case referenced by both parties, a plaintiff's fear for his personal safety was not found a proper factor in considering the adequacy of the alternative forum. 87 F.3d 1322 (9th Cir. 1996) (plaintiff's personal danger from Japanese mafia was not relevant in assessing the adequacy of the alternate forum). Notwithstanding newspaper accounts of the startling crime rates in Colombia, see, e.g., Dean J. Schemo, Risking Life, Limb and Capital: U.S. Companies in Colombia, but very Carefully, N.Y. Times, Nov. 6, 1998, at Cl. (cited in Pl. Supp. Mem., dated Nov. 24, 1998 at Ex. C)., in this case, no particularized threat to these plaintiffs or witnesses has been demonstrated. Moreover, the plaintiffs are knowledgeable about Columbia, having chosen to live there for an extended period of time and they continue to have close relatives in Colombia, who have already assisted them in this litigation. Furthermore, while Colombia's drug cartel implicates...