Guidi v. Inter-Continental Hotels

• Decision Date: 02 December 1999
• Docket Number: Nos. 97-7973,99-7623,s. 97-7973
• Citation: 224 F.3d 142
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 2000) Karen Guidi, individually and as Executrix of the Estate of Robert L. Guidi; Eve Hoffman, individually and as Executrix of the Estate of Coby M. Hoffman; Merrill Kramer; Lois Kramer, Plaintiffs-Appellants, v. Inter-Continental Hotels Corporation, a Delaware corporation; Inter-Continental Hotels Corporation, a corporation of the United Kingdom; Inter-Continental Hotels & Resorts Corporation; Semiramis Hotel Corp.; Saison Holdings; B.V.; Saison Corporation, Defendants-Appellees. Argued:

Page 142

224 F.3d 142 (2nd Cir. 2000)

Karen Guidi, individually and as Executrix of the Estate of Robert L. Guidi; Eve Hoffman, individually and as Executrix of the Estate of Coby M. Hoffman; Merrill Kramer; Lois Kramer, Plaintiffs-Appellants, v. Inter-Continental Hotels Corporation, a Delaware corporation; Inter-Continental Hotels Corporation, a corporation of the United Kingdom; Inter-Continental Hotels & Resorts Corporation; Semiramis Hotel Corp.; Saison Holdings; B.V.; Saison Corporation, Defendants-Appellees.

Nos. 97-7973, 99-7623

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: December 2, 1999.

Decided: February 14, 2000.

Amended: August 16, 2000.

Brian J. Shoot, New York, NY (Schneider, Kleinick, Weitz, Damashek & Shoot, of counsel), for Plaintiffs-Appellants.

Robert B. Wallace, Washington, DC (Harry P. Brett, Wilson, Elser, Moskowitz, Edelman & Dicker, of counsel), for Defendants-Appellees.

Before OAKES, STRAUB, and KATZMANN, Circuit Judges.

AMENDED OPINION

OAKES, Senior Circuit Judge:

Karen Guidi, Eve Hoffman, Merrill Kramer, and Lois Kramer ("Plaintiffs") sued Inter-Continental Hotels Corporation and other defendants (collectively "IHC") on personal injury and wrongful death claims arising from a shooting in an Egyptian hotel managed by IHC. The United States District Court for the Southern District of New York, Loretta A. Preska, Judge, dismissed Plaintiffs' action on the ground of forum non conveniens, concluding that Egypt was the better forum for their suit. Plaintiffs now appeal this dismissal, arguing that the District Court applied the wrong legal standard for determining the proper forum in this case and mistakenly relied on the existence of related litigation in favor of the Egyptian forum. Because we agree with Plaintiffs that the District Court erred in concluding that their action should be heard in Egypt, we reverse.

BACKGROUND

In October 1993, Robert Guidi, Coby Hoffman, and Merrill Kramer were in Egypt on business. While eating dinner in the restaurant of the Semiramis Inter-Continental Hotel, which at the time was managed by IHC, all three men were shot by an Egyptian gunman named Farahat who had entered the hotel without triggering the suspicions of hotel security. In addition to the three Americans, Farahat shot a Syrian lawyer, a French lawyer, and an Italian judge. Of his six victims, four died, including Robert Guidi and Coby Hoffman.

Immediately after the shooting, Farahat surrendered to hotel security and the Egyptian police. His claimed motivation for the shootings was religious extremism directed against foreigners. In the criminal prosecution that followed, Farahat was adjudged insane and committed to a government hospital in January 1994. He escaped from the hospital in September 1997 and the same day, with the help of at least one other person, killed ten more people in an attack on a tour bus.

Plaintiffs filed suit against IHC on October 20, 1995, joining the wrongful death claims of Guidi's and Hoffman's widows with the personal injury claims of Kramer and his wife. At the time of suit, Mrs. Guidi and Mrs. Hoffman were residents of New Jersey and the Kramers resided in Maryland. Because IHC is a Delaware company with its principal place of business in New York City and diversity existed between the parties, Plaintiffs elected to bring their action in the Southern District of New York. On July 7, 1996, IHC moved for dismissal on the ground of forum non conveniens, arguing that information critical to its defense could be obtained only in Egypt, that the cost of defending itself in New York would be prohibitive, that it would be unable to implead Egyptian third parties, and that an Egyptian court would better be able to apply Egyptian tort law. Plaintiffs opposed IHC's motion on several fronts, including that American plaintiffs should not be compelled to sue an American defendant in a foreign country and that Plaintiffs were emotionally unable to travel to Egypt for a trial.

In January 1997, IHC submitted supplemental information to the District Court which indicated that the families of the Italian judge and the French lawyer, whom Farahat had killed in the same incident that gave rise to this case, had commenced wrongful death actions in the Egyptian courts.

On July 17, 1997, the District Court granted IHC's motion to dismiss.¹ Applying the forum non conveniens balancing test outlined by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), the court found that with respect to the private interests of the litigants, the balance slightly favored the Egyptian forum because a viewing of the premises would be possible there and because IHC would be able to implead the Egyptian government as a third party. Turning to the public interest factors presented by the case, the court found that (1) the Southern District of New York has an overburdened docket; (2) Egypt has a greater interest in the litigation than New York because it is committed to protecting its tourist industry; (3) an Egyptian court would be more familiar with Egyptian law and have a greater interest in its application; and (4) most significantly, there were two related lawsuits pending in Egypt at the time of dismissal. The court concluded that these public interest factors decisively favored the Egyptian forum, and dismissed the case on that basis.

In November 1997, Plaintiffs filed for relief from the district court's dismissal under Fed. R. Civ. P. 60(b)(6), providing evidence of increasing terrorist activity against tourists in Egypt since the time of the dismissal. Plaintiffs' evidence included the escape and subsequent killing of ten tourists by Farahat in September 1997, as well as the terrible attack at Luxor in November 1997 that resulted in the deaths of more than 50 foreigners. Plaintiffs' motion was denied by an order dated April 16, 1999.

Plaintiffs challenge both the dismissal of their action and the denial of relief under Rule 60(b)(6) in this consolidated appeal. Plaintiffs argue primarily that the district court applied an incorrect legal standard for cases in which an American plaintiff seeks an American forum and relied excessively on the existence of related litigation in Egypt. Plaintiffs also question the district court's failure to give proper weight to the emotional toll and threats to personal safety faced by Plaintiffs if forced to bring their action in Egypt.

DISCUSSION

We have recognized that our review of a forum non conveniens dismissal is limited to whether a district court abused its broad discretion to dismiss on such grounds. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996); Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). Our limited review, however, encompasses "the right to determine whether the district court reached an erroneous conclusion on either the facts or the law." R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991) (internal quotation omitted).

Plaintiffs believe that the district court abused its discretion in at least two ways by deciding that Egypt was the better forum for this case. First, Plaintiffs argue that the district court failed to accord appropriate deference to their choice of forum as required by Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 91 L. Ed. 1067, 67 S. Ct. 828 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). Second, Plaintiffs contest the significance given by the district court to the related wrongful death cases pending in Egypt at the time of its decision, and argue that the district court confused forum non conveniens with transfer to another federal court under 28 U.S.C. 1404(a). Although we do not agree with Plaintiffs that Koster establishes a different forum non conveniens standard for American citizens than that set forth in the more familiar case of Gilbert, see Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147, 152 (2d Cir. 1980) (en banc), we do find that the district court did not give sufficient weight to Plaintiffs' choice of forum and relied too heavily on the existence of the Egypt litigation. Moreover, we believe that the special circumstances presented by this case -- specifically, the emotional burden on Plaintiffs of returning to the country where they or their loved ones were shot in an act of religious terrorism -- provide additional weight for favoring Plaintiffs' choice of their home forum for this litigation.

Plaintiff's Choice of Forum under Koster and Gilbert

In 1947, the Supreme Court decided the companion cases Koster, 330 U.S. 518, 91 L. Ed. 1067, 67 S. Ct. 828 (1947), and Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). In these two cases, the Court laid out the approach to forum non conveniens that is still followed in federal courts today.² See, e.g., Piper Aircraft Co., 454 U.S. at 241; Scottish Air Int'l, 81 F.3d at 1232. In Gilbert, which involved a plaintiff who brought suit outside his home forum, see 330 U.S. at 502, the Court set forth a balancing test of private and public interests to guide courts' discretion in determining whether a more convenient forum exists. See id. at 508-09. While Gilbert acknowledged that "the plaintiff's choice of forum should rarely be disturbed," "unless the balance [of factors] is strongly in favor of the defendant," id. at 508, Koster, which involved a plaintiff who had chosen to sue in his home forum, more explicitly stated that:

Where there are only two parties to a dispute, there is good reason why it should be tried in the plaintiff's home forum if that has been his choice. He should not be deprived of the presumed advantages of his home jurisdiction except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience,...