DiFederico v. Marriott Int'l, Inc.

• Decision Date: 01 May 2013
• Docket Number: No. 12–1635.,12–1635.
• Citation: 714 F.3d 796
• Parties: Mary DiFEDERICO, individually and as personal representative of the estate of Albert DiFederico; Nicholas DiFederico, Individually; Erick DiFederico, Individually; Greg DiFederico, Individually, Plaintiffs–Appellants, v. MARRIOTT INTERNATIONAL, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

714 F.3d 796

Mary DiFEDERICO, individually and as personal representative of the estate of Albert DiFederico; Nicholas DiFederico, Individually; Erick DiFederico, Individually; Greg DiFederico, Individually, Plaintiffs–Appellants,

v.MARRIOTT INTERNATIONAL, INCORPORATED, Defendant–Appellee.

No. 12–1635.

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2013.

Decided: May 1, 2013.

ARGUED:Andrew C. Hall, Hall, Lamb & Hall, PA, Miami, Florida, for Appellants. Paul K. Leary, Jr., Cozen O'Connor, Philadelphia, Pennsylvania, for Appellee. ON BRIEF:Matthew P. Leto, Hall, Lamb & Hall, PA, Miami, Florida, for Appellants. Sara Anderson Frey, Cozen O'Connor, Philadelphia, Pennsylvania, for Appellee.

Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge THACKER and Senior Judge HAMILTON joined.

OPINION

GREGORY, Circuit Judge:

Albert DiFederico, a former naval commander, was serving as a civilian contractor for the State Department in Pakistan when he was killed in a terrorist attack on the Marriott Islamabad Hotel. His widow, Mary DiFederico, and their three sons, brought this wrongful death action and survivorship claim alleging that Marriott International (“Marriott”) was liable for its failure to adequately secure its franchise hotel. The DiFedericos brought their suit in the forum of Marriott's principal place of business, the District of Maryland. The district court granted Marriott's motion to dismiss on the basis of forum non conveniens, finding that Pakistan was an available, adequate, and far more convenient forum to hear the case. We reverse and remand for further proceedings.

I.

At 7:54 p.m. on September 20, 2008, a large dump truck containing over 1,000 pounds of explosives, artillery shells, mortar bombs, and shrapnel tried unsuccessfully to ram through the gate barrier of the Marriott Islamabad Hotel. Security personnel approached the truck, apparently mistaken that a traffic accident had occurred. At 7:55 p.m., the driver detonated an explosion inside the cab of the vehicle. The explosive device malfunctioned, however, and only initiated a small fire contained in the cab of the truck. The security team did not warn hotel guests of any danger. Instead, personnel began searching for a fire extinguisher. At 8:02 p.m., the explosives in the back of the truck ignited, creating a large blast that engulfed the hotel in fire. The blast and resulting fire killed 56 people—including Albert DiFederico—and injured at least 266 more.

The DiFedericos filed suit in June 2011. The wrongful death action in the amended complaint alleged that Marriott: (1) failed to notify or evacuate guests upon the first explosion; (2) failed to have proper measures in place to put out the fire at the security gate; (3) failed to adequately train and supervise security employees; (4) failed to provide adequate fire safety devices; (5) failed to implement additional security measures concomitant with the then-current threat in Pakistan; and (6) fell below the standard of care in providing for the safety of its hotel guests. The complaint also set forth a survivorship claim and a claim for vicarious liability based on a negligent security theory.

Marriott operates and franchises over 3,000 hotels and resorts in 67 different countries. The Marriott Islamabad was a franchise hotel owned and operated by Hashwani Hotels Limited (“Hashwani”), a public limited company organized under the laws of Pakistan. The DiFedericos chose not to sue Hashwani. Instead, the DiFedericos allege that Marriott “controlled all aspects of anti-terrorism security at the hotel.” While Hashwani contracted with a security company to handle security work, the hotel complied with security standards and protocols set forth by Marriott. For instance, in 1993, Marriott hired Alan Orlob to form an international crisis management team that assessed risk and prescribed security measures and procedures for all Marriott branded hotels. Under Orlob's direction, Marriott instituted a multi-tiered threat level system, installed security equipment, and sent hotel security officers to advanced training programs developed by Marriott. Orlob explained in an article he authored that Marriott's comprehensive approach to security is “all ... directed out of Marriott's corporate security offices. Instead of requiring general managers to make risk assessments and implement appropriate countermeasures without support, Marriott provides professional analysis and direction.”

On September 19, 2011, Marriott moved to dismiss based on the doctrine of forum non conveniens. In granting the motion, the district court first found that although the statute of limitations might bar the DiFedericos' claim in Pakistan, it posed no bar to dismissal because the DiFedericos were responsible for a “tactical decision” not to litigate within the statute of limitations in Pakistan. The court then found that Pakistan provided an adequate forum for adjudication, relying in large part on an affidavit from Marriott's expert witness, an experienced Pakistani attorney. Finally, the court weighed the applicable public and private interest factors, and found almost all factors weighed heavily in favor of dismissal.

The DiFedericos timely filed an appeal, of which we have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A.

We review a district court's decision to dismiss a case pursuant to the doctrine of forum non conveniens for abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). A district court's forum non conveniens determination may amount to an abuse of discretion if “it failed to consider a material factor or clearly erred in evaluating the factors before it, or did not hold the defendants to their burden of persuasion on all elements of the ... analysis.” Galustian v. Peter, 591 F.3d 724, 731 (4th Cir.2010) (internal quotations omitted).

When considering a motion to dismiss on forum non conveniens grounds, a court must determine that the alternative forum is available to the plaintiff, that the alternative forum is adequate, and that the alternative forum is more convenient in light of the public and private interests involved. Jiali Tang v. Synutra Int'l, Inc., 656 F.3d 242, 248 (4th Cir.2011). The defendant bears the burden of proving the adequacy, availability and overall convenienceof the alternative forum. Galustian, 591 F.3d at 731.

B.

The DiFedericos argue that the district court erred when it decided the Pakistani forum was available even though the statute of limitations had run on their claims in Pakistan. If the statute of limitations has expired in the alternative forum, the forum is typically not “available” for purposes of the forum non conveniens inquiry. Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 202 (4th Cir.2009) (citing Kontoulas v. A.H. Robins Co., Inc., 745 F.2d 312, 316 (4th Cir.1984)) (finding dismissal improper because defendant did not meet its “heavy burden of showing for each individual action that no statute of limitations in the [alternative forum] renders that forum ineligible ...”).

Here, Pakistan's Limitation Act of 1908 prescribes a one-year statute of limitations for all claims by executors, administrators or representatives brought under the Fatal Accidents Act of 1855. The Limitation Act, Act No. IX of 1908. Marriott has stated that it will waive all statute of limitations defenses if the case is tried in Pakistan. However, the Limitation Act appears to establish that the statute of limitations is a mandatory, self-acting provision that Marriott cannot waive as an affirmative defense.¹

In its brief, Marriott argues that “a reasonable interpretation” of the Limitation Act is that the limitation period does not begin until Marriott submits to the jurisdiction of Pakistan. However, Marriott does not provide any evidence of the viability of this interpretation. While Marriott produced an affidavit from an expert on Pakistani law to substantiate its argument that the DiFedericos have access to a remedy in Pakistan and that the Pakistani courts will enforce a judgment, the expert provided no opinion on the bearing of the Pakistani statute of limitations on this case. Marriott's proffer of a “reasonable interpretation” of Pakistani law does not satisfy its heavy burden of showing that there is no statute of limitations issue that would bar litigation.²

While an expired statute of limitations is usually dispositive in a forum non conveniens analysis, we have recognized an exception where it can be shown the plaintiff made a deliberate and tactical decision to run the statute of limitations for the purpose of avoiding dismissal in her preferred forum. Compania Naviera, 569 F.3d at 202–03. After acknowledging the DiFedericos may not be able to pursue their case in Pakistan, the district court determined that the DiFedericos had made a strategic decision to avoid trying the case in Pakistan, and concluded that the Compania Naviera exception “clearly applies in this case.” DiFederico v. Marriott Int'l, Inc., No. 8:11–cv–1508, at *6–7 (D.Md. Apr. 25, 2012).

Courts cannot invoke the Compania Naviera exception without evidence establishing that the plaintiff deliberately maneuvered to avoid trying the case in the alternative forum. Compania Naviera, 569 F.3d at 202–03;see also Veba–Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1248 & n. 10 (5th Cir.1983) (explaining that dismissal where the statute of limitations has run would be “exceedingly harsh” and carving out an exception only where the plaintiff has made a “deliberate choice” to force the case into an inconvenient forum). This conforms with the Supreme Court's foundational explanation of the forum non conveniens doctrine that a plaintiff should not be allowed to “ ‘vex,’ ‘harass,’ or ‘oppress' the...