Niv v. Hilton Hotels Corp.

• Decision Date: 10 November 2008
• Docket Number: No. 06 Civ. 7839 (PKL),06 Civ. 7839 (PKL)
• Citation: 710 F.Supp.2d 328
• Parties: Zohar NIV, individually and as Personal Representative of the Estate of Decedent Tzila Niv and his minor children Decedents Gilad Niv and Lior Niv, et al., Plaintiffs, v. HILTON HOTELS CORPORATION and Hilton International Co., Defendants.
• Court: U.S. District Court — Southern District of New York

710 F.Supp.2d 328

Zohar NIV, individually and as Personal Representative of the Estate of Decedent Tzila Niv and his minor children Decedents Gilad Niv and Lior Niv, et al., Plaintiffs,

v.HILTON HOTELS CORPORATION and Hilton International Co., Defendants.

No. 06 Civ. 7839 (PKL).

United States District Court,

S.D. New York.

Nov. 10, 2008.

Nixon Peabody LLP, Robert Sentner, Tamar Y. Duvdevani, New York, NY, for Plaintiffs.

Kardaras & Kelleher LLP, William P. Kardaras, Lori S. Kahn, Louise A. Kelleher, New York, NY, Greenberg Traurig, P.A., Hilarie Bass, Mark A. Salky, Miami, FL, for Defendants.

OPINION AND ORDER

LEISURE, District Judge:

This action arises out of the tragic events that took place on October 7, 2004 at the Hilton Taba Hotel in Taba City, South Sinai, Egypt when a terrorist drove a vehicle with explosives into the lobby of the hotel, causing an explosion and the hotel's collapse. Plaintiffs are 157 individuals who were guests, or whose decedents were guests, of the Hilton Taba Hotel on October 7, 2004. Defendants Hilton InternationalCo. and Hilton Hotels Corporation (collectively "Hilton" or "defendants"), now move this Court to dismiss the case pursuant to the doctrine of forum non conveniens. For the following reasons, defendants' motion is GRANTED, subject to the conditions set forth below.

BACKGROUND

The Hilton Taba Hotel is located on the Sinai Peninsula in Egypt, near the Israeli border. (Compl. ¶ 2.) Plaintiffs contend that the Hilton Taba Hotel is "a long-favored holiday destination" for Israelis and that the hotel markets to Israeli tourists. ( Id. ¶¶ 18-20.) During the fall of 2004, and in particular around the time of the Jewish holidays of Rosh Hashana, Yom Kippur, and Sukkot, Israeli intelligence issued public warnings of possible terrorist attacks in the Sinai. ( Id. ¶¶ 22-25.) Plaintiffs aver that despite the fact that an attack was "both likely and foreseeable" during the fall of 2004 ( id. ¶ 25), Hilton Taba's security was below the standards required in the Sinai region during that time period. ( See id. ¶¶ 27-29.)

Plaintiffs assert causes of action for negligence and wrongful death, alleging that Hilton failed to exercise reasonable care to protect guests where criminal activity was reasonably foreseeable, and that Hilton's actions caused plaintiffs to suffer bodily injury and severe emotional distress. ( Id. ¶¶ 40-50.) Plaintiffs seek compensatory and punitive damages ( id. ¶¶ 51, 55), and assert that Hilton Hotels Corporation is fully liable for the acts or omissions of Hilton International Co. pursuant to a theory of successor liability. ( Id. ¶¶ 57-59.)

Defendants deny liability and ask the Court to dismiss the case based upon the theory of forum non conveniens. Specifically, defendants contend that because none of the plaintiffs are United States citizens or residents, and because the events in question, the witnesses, and the relevant documents are located in Egypt, the dispute should be heard in Egypt. ( See Defs.' Mot. 24.) Plaintiffs oppose this motion, arguing that Egypt is not an adequate forum to hear this dispute because of the emotional burden plaintiffs would face if forced to return to Egypt, and that they would be unable to receive a fair trial in Egypt in light of widespread anti-Semitism and anti-Israeli sentiments. ( See Pls.' Opp'n 1-2.)

DISCUSSION

I. Forum Non Conveniens Dismissal Standard

The doctrine of forum non conveniens is based on the principle that " 'a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.' " Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984, 634 F.Supp. 842, 845 (S.D.N.Y.1986) (Keenan, J.) ("The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general venue statute."), aff'd, 809 F.2d 195 (2d Cir.1987). Notwithstanding the propriety of the action under the venue statute, "dismissal will ordinarily be appropriate 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. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The Supreme Court has declined to fashion the exact circumstances that would " 'justify or require either grant or denial of remedy.' " Id. (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). Consequently,a district court's inquiry is highly fact-specific. Id. (" 'Each case turns on its facts.' " (quoting Williams v. Green Bay & W.R. Co., 326 U.S. 549, 557, 66 S.Ct. 284, 90 L.Ed. 311 (1946))); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F.Supp. 383, 392-93 (S.D.N.Y.1989) (Leisure, J.) ("The Supreme Court has emphasized the flexibility with which the District Court must approach a forum non conveniens determination, and consequently there are no specific circumstances which would require either a grant or denial of the remedy.").

In exercising its discretion, the Court applies the three-step analysis outlined by the Second Circuit's decision in Iragorri v. United Technologies Corporation, 274 F.3d 65, 73-74 (2d Cir.2001) (en banc):

At step one, a court determines the degree of deference properly accorded the plaintiff's choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute. Finally, at step three, a court balances the private and public interests implicated in the choice of forum.

Norex, 416 F.3d at 153 (internal citations omitted).¹

II. Application of Forum Non Conveniens Principles to the Parties' Arguments

A. Level of Deference to Plaintiffs' Choice of Forum

In Iragorri, the Second Circuit sought to clarify the level of deference adistrict court should accord to a United States plaintiff's choice of forum when assessing a forum non conveniens motion. 274 F.3d at 68. In so doing, the Second Circuit resolved that the level of deference to any plaintiff's choice of forum moves on a "sliding scale" depending on several considerations. Id. at 71. The Iragorri Court explained that a plaintiff's choice of forum should receive greater deference where it appears that there is a bona fide connection between the plaintiff or the lawsuit and the forum, or that the plaintiff was sincerely concerned with convenience in choosing that forum, and less deference is warranted when it appears that the choice of forum was motivated by forum-shopping. Id. at 72. To assist the district courts with making this determination, the Second Circuit highlighted some factors a district court should consider. Specifically, factors that support a plaintiff's choice of forum include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence in the chosen forum, defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense. Id. Alternatively, factors that would decrease the level of deference include attempts to win a tactical advantage resulting from local laws, generosity of juries in the United States or in the forum district, the litigant's popularity, or their adversaries' unpopularity, in the district, or the inconvenience and expense of defending the suit in that jurisdiction. Id.

After considering all the factors outlined by the Second Circuit, this Court concludes that plaintiffs' choice of forum in this case is not entitled to substantial deference. Notably, none of the 157 plaintiffs are United States citizens or residents and none of the significant events occurred in this jurisdiction. See, e.g., Wilson v. ImageSat Int'l N.V., No. 07 Civ. 6176, 2008 WL 2851511, at *4, 2008 U.S. Dist. LEXIS 57897, at *12-*13 (S.D.N.Y. July 22, 2008) (holding that plaintiffs' choice of an American forum is "entitled to some, but minimal, deference" where only half of plaintiffs were connected to the United States and the relevant events took place abroad); Aguas Lenders Recovery Group, LLC v. Suez S.A. Sociedad General de Aguas de Barcelona S.A., No. 06 Civ. 7873, 2008 WL 612669, at *6, 2008 U.S. Dist. LEXIS 16283, at *18 (S.D.N.Y. Mar. 3, 2008) (according little deference to plaintiff's decision because "the operative facts upon which the litigation is brought bear little material connection to the chosen forum." (citing Nieves v. Am. Airlines, 700 F.Supp. 769, 772 (S.D.N.Y.1988) (Leisure, J.))). There is no indication that plaintiffs, who are Israeli and Russian citizens and residents, have any connection to this district or to the United States that would increase the deference accorded to plaintiffs' choice of forum. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir.2000) ("While any plaintiff's selection of a forum is entitled to deference, that deference increases as the plaintiff's ties to the forum increase.").

The Court does not rely exclusively on plaintiffs' citizenship in determining that less deference should be accorded to plaintiffs' choice of forum. See Norex, 416 F.3d at 157 (reversing forum non conveniens dismissal where, instead of applying the sliding scale of deference outlined in Iragorri, the district court relied "almost exclusively on the presumption that a foreign plaintiff's choice of a non-home forum is inconvenient" in determining that plaintiff's choice of forum was entitled to little deference). Rather, after considering the relevant factors identified in Iragorri, the Court finds additional support for affording plaintiffs' forum selection less deferencein the fact that the evidence and witnesses are not located in the United States, there...