United States District Court, D. Massachusetts
CHIMENE MBAGUE NANDJOU, Individually, and as Administratrix of THE ESTATE OF MENELIK TCHOUAMOU and THE ESTATE OF WILLIAM TCHOUAMOU GANJUI, and as Mother and Next Friend of AURELLIA LLANA SALENG and WILMA TCHOUAMOU MGABUE, Plaintiff,
MARRIOTT INTERNATIONAL, INC., MARRIOTT WORLDWIDE CORPORATION, and RELUXICORP, INC. d/b/a THE RESIDENCE INN BY MARRIOTT, Defendants.
AMENDED MEMORANDUM AND ORDER ON DEFENDANTS'
MOTION TO DISMISS FOR FORUM NON CONVENIENS AND FOR LACK OF
ALLISON D. BURROUGHS DISTRICT JUDGE.
Chimene Mbague Nandjou (“Plaintiff”) filed this
action against Marriott International, Inc., Marriott
Worldwide Corporation (together “Marriott”), and
Reluxicorp, Inc. d/b/a The Residence Inn by Marriott
“Defendants”), claiming that Defendants'
conduct led to the deaths of William Tchouamou Ganjui and
Menelik Tchouamou. Plaintiff brings several claims, including
wrongful death, vicarious liability, and negligent infliction
of emotional distress. See [ECF No. 1-3 (hereinafter
“Complaint” or “Compl.”)].
April 29, 2019, the Court denied Defendants' motion to
dismiss for lack of personal jurisdiction under Rule 12(b)(2)
of the Federal Rules of Civil Procedure or for forum non
conveniens. [ECF No. 23]. On May 20, 2019, Defendants moved
for reconsideration and a certificate of appealability
pursuant to 28 U.S.C. § 1942(b). [ECF No. 26]. The Court
now issues an amended memorandum to clarify and affirm its
April 29, 2019 finding that it has personal jurisdiction over
the defendants. The Court denies the request for a
certificate of appealability under 28 U.S.C. § 1942(b)
for the reason discussed at the July 2, 2019 status
conference, but the Court will ALLOW a renewed motion to
dismiss for forum non conveniens following discovery on the
issue, which shall be completed by July 26, 2019.
STANDARD OF REVIEW
bears the burden of establishing the Court's personal
jurisdiction over the Defendants. Daynard v. Ness,
Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d
42, 50 (1st Cir. 2002). Under the “prima facie”
standard, “the inquiry is whether the plaintiff has
proffered evidence which, if credited, is sufficient to
support findings of all facts essential to personal
jurisdiction.” Bluetarp Fin., Inc. v. Matrix
Constr. Co., Inc., 709 F.3d 72, 79 (1st Cir. 2013)
(quoting Phillips v. Prairie Eye Ctr., 530 F.3d 22,
26 (1st Cir. 2008)). “The plaintiff's properly
documented evidentiary proffers are accepted as true for
purposes of making the prima facie showing, and we construe
these proffers in a light most favorable to plaintiff's
jurisdictional claim.” Id.
Court considers “the facts from the pleadings and
whatever supplemental filings (such as affidavits) are
contained in the record, giving credence to the
plaintiff's version of genuinely contested facts.”
Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 34 (1st Cir. 2016). Plaintiff may
not, however, establish the Court's personal jurisdiction
over the Defendants with “unsupported allegations in
[the] pleadings, ” and is instead “obliged to
adduce evidence of specific facts.” Platten v. HG
Berm. Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)
(first quoting Boit v. Gar-Tec Prods., Inc., 967
F.2d 671, 675 (1st Cir. 1992), then quoting
Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145 (1st Cir. 1995)). The Court will also
“add to the mix facts put forward by the defendants, to
the extent that they are uncontradicted.” Daynard, 290
F.3d at 51.
is the wife of decedent William Tchouamou Ganjui (“Mr.
Ganjui”) and mother of decedent Menelik Tchouamou.
Compl. ¶¶ 1, 5. Plaintiff and her husband had two
other children, Aurellia Llana Saleng and Wilma Tchouamou
Mgabue. Id. ¶ 6. Plaintiff's family resided
exclusively in Massachusetts from 2007 to 2017, and Plaintiff
now maintains residences in both Massachusetts and Georgia.
[ECF No. 14-1 at 7].
International Inc. is a Delaware corporation with its
principal place of business in Maryland. Compl. ¶ 7;
[ECF No. 11 at 11]. Marriott Worldwide, a wholly-owned
subsidiary of Marriott International Inc., is a Maryland
corporation with its principal place of business in Maryland.
[ECF No. 11 at 11]. Marriott markets its hotels in
Massachusetts through, inter alia, print advertising, direct
mailings, television, radio, internet, and special rate
reduction programs. Compl. ¶ 14.
is a corporation organized under the Canada Business
Corporations Act with its principal place of business in
Montreal, Quebec. Id. ¶ 9. In 2003, Reluxicorp
and Marriott entered into a franchise agreement (the
“Franchise Agreement”) which obligated Marriott
to market and promote Reluxicorp's Montreal hotel via
print, direct mailings, television, radio, interactive
websites, and other means as “The Residence Inn by
Marriott.” Id. ¶ 17. Marriott marketed
Reluxicorp's Montreal hotel in Massachusetts and also
through its website, which allows individuals, including
Massachusetts residents, to view, receive information about,
book, and pay for rooms at the hotel online. Id.
¶ 18. Reluxicorp paid Marriott annual fees and costs
under the Franchise Agreement for the branding and marketing
provided by Marriott. Id. ¶¶ 23- 26. The
Franchise Agreement also required Reluxicorp to abide by all
federal, state, and local laws, rules, and regulations, and
subjected Reluxicorp's hotel to inspections by Marriott.
Id. ¶¶ 69-76.
and Mr. Ganjui viewed advertisements in Massachusetts for
Reluxicorp's Marriott hotel through print, email, and
direct mail advertisements. Id. ¶¶ 27-30.
In March or April of 2016, Mr. Ganjui and Plaintiff discussed
booking a room for Mr. Ganjui and their children at
Reluxicorp's hotel based, in part, upon Marriott
marketing materials that were sent to their home in
Massachusetts and featured a pool that “was a big
draw.” Id. ¶ 33; [ECF No. 14-1 at 2]. Mr.
Ganjui also obtained a “Friends and Family”
discount rate authorization form from the Boston Marriott
Copley Place in Boston, Massachusetts, with the intent of
using it at Reluxicorp's hotel. Compl. ¶ 35; [ECF
No. 14-1 ¶¶ 11-16]. Mr. Ganjui then reserved a room
at Reluxicorp's hotel for his children and himself using
Marriott's website. Compl. ¶ 36.
about April 20, 2016, Mr. Ganjui, along with his three
children, traveled to Reluxicorp's hotel in Montreal.
Id. ¶ 37. Plaintiff was studying for an exam,
and one purpose of the trip to Montreal was to provide her an
opportunity to study. [ECF No. 14-1 ¶¶ 19-20].
After checking in and successfully using the “Friends
and Family” discount form, Mr. Ganjui brought his
children to the hotel's pool. Compl. ¶¶ 38, 40.
When Mr. Ganjui and his children arrived at the pool, there
were no other guests present, no hotel staff working at the
pool responsible for safety, and no cameras used to monitor
the pool remotely. Id. ¶¶ 42-50. While in
the pool, Mr. Ganjui and his son Menelik Tchouamou began to
drown. Id. ¶¶ 50-52. Mr. Ganjui's two
other children were able to remove Menelik Tchouamou from the
pool, but he was unconscious. Id. ¶ 54. Both
Mr. Ganjui and Menelik Tchouamou were later pronounced dead.
Id. ¶ 61.
exercise personal jurisdiction over Defendants, the Court
must “find sufficient contacts between the defendant
and the forum to satisfy both that state's long-arm
statute and the Fourteenth Amendment's Due Process
clause.” Sawtelle v. Farrell, 70 F.3d 1381,
1387 (1st Cir. 1995).
Massachusetts long-arm statute, provides, in relevant part:
“A court may exercise personal jurisdiction over a
person, who acts directly or by an agent, as to a cause of
action in law or equity arising from the person's (a)
transacting any business in this commonwealth . . . .”
Mass. Gen. Laws ch. 223A, § 3. “The ‘arising
from' clause in [the long-arm statute] is . . .
generously construed in favor of asserting personal
jurisdiction, by applying a ‘but for' causation
test.” Workgroup Tech. Corp. v. MGM Grand Hotel,
LLC, 246 F.Supp.2d 102, 112 (D. Mass. 2003). “[A]
claim arises from a defendant's transaction of business
in the forum State if the claim was made possible by, or lies
in the wake of, the transaction of business in the forum
State.” Access Now, Inc. v. Otter Prods., LLC,
280 F.Supp.3d 287, 291 (D. Mass. 2017) (quoting Tatro v.
Manor Care, Inc., 625 N.E.2d 549, 553 (Mass. 1994)). The
arising from inquiry asks “[d]id the defendant's
contacts with the Commonwealth constitute the first step in a
train of events that result[ed] in the . . . injury.”
Id. (internal quotation marks omitted) (quoting
Lyle Richards Int'l, Ltd. v. Ashworth, Inc., 132
F.3d 111, 114 (1st Cir. 1997)). “[T]he defendant's
involvement need not be major, as ‘just a few acts on
[his] part can often suffice to satisfy [subsection
(a)]'s threshold for transacting business.'”
Scuderi Grp., LLC v. LGD Tech., LLC, 575 F.Supp.2d
312, 319 (D. Mass. 2008) (quoting Workgroup Tech. Corp., 246
F.Supp.2d at 110).
jurisdiction consistent with the Due Process Clause can be
either general or specific. Harlow v. Children's
Hosp.,432 F.3d 50, 57 (1st Cir. 2005). To establish
general jurisdiction over a corporation, the
corporation's “affiliations with the State [must
be] so continuous and systematic as to render [it]
essentially at home in the forum State.” Daimler AG
v. Bauman,571 U.S. 117, 138 (2014) (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011)). Under this standard, “the place