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.
MEMORANDUM AND ORDER ON DEFENDANTS' RENEWED
MOTION TO DISMISS FOR FORUM NON CONVENIENS
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 her husband, William Tchouamou
Ganjui, and child, Menelik Tchouamou. Plaintiff brings
several claims, including wrongful death, vicarious
liability, and negligent infliction of emotional distress.
See [ECF No. 1-3 (“Complaint” or
before the court is Defendants' renewed motion to dismiss
the Complaint for forum non conveniens. [ECF No.
39]. For the reasons explained more fully below,
Defendants' motion to dismiss [ECF No. 39] is GRANTED,
subject to the conditions that Defendants continue to submit
to the personal jurisdiction of the Canadian courts and that
the Canadian courts continue to maintain personal
jurisdiction over Defendants.
Court presumes familiarity with the underlying facts alleged
in the Complaint, which were summarized in the Court's
memorandum and order denying Defendants' original motion
to dismiss. [ECF No. 38]. Plaintiff is the wife of decedent
William Tchouamou 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 lived in Massachusetts from 2007 to
2017. [ECF No. 14-1 ¶ 38]. Plaintiff now maintains
residences in both Massachusetts and Georgia. [Id.].
and Mr. Ganjui saw advertisements in Massachusetts for
Reluxicorp's Marriott hotel through print, email, and
direct mail advertisements. [Compl. ¶¶ 27-30, 35].
They then obtained a “Friends and Family”
discount rate authorization from the Boston Marriott Copley
Place in Boston, Massachusetts, with the intent of using it
at Reluxicorp's hotel. [Compl. ¶¶ 27- 30, 35;
ECF No. 14-1 ¶¶ 11-16].
is a corporation organized under the Canada Business
Corporations Act with its principal place of business in
Montreal, Quebec. [Compl. ¶ 9]. In 2003, Reluxicorp and
Marriott entered into a franchise agreement (the
“Franchise Agreement”) that 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 International Inc. is a
Delaware corporation with its principal place of business in
Maryland. [Compl. ¶ 7; ECF No. 11 at 11]. Marriott
Worldwide, which is a wholly-owned subsidiary of Marriot
International Inc., is a Maryland corporation with its
principal place of business in Maryland. [ECF No. 11 at 11].
about April 20, 2016, Mr. Ganjui, along with his three
children, traveled to Reluxicorp's hotel in Montreal.
[Compl. ¶ 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, 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 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]. One witness
claims to have seen Mr. Ganui's two other children remove
Menelik from the pool, but was unable to access the pool
because it was limited to those with keycards. [ECF No. 39-4
at 59; ECF No. 39-5 at 6]. That witness solicited the help of
a few other people at the hotel, who performed CPR on Menelik
and removed Mr. Ganui from the pool. [ECF No. 39-4 at 59-69;
ECF No. 39-5 at 6]. First responders arrived on the scene a
few minutes later, inserted ventilation tubes, and continued
CPR. [ECF No. 39-4 at 59-69; ECF No. 39-5 at 6]. Both Mr.
Ganjui and Menelik were later pronounced dead. [Compl. ¶
filed this action in state court in Massachusetts on
September 12, 2018. [Compl.]. Defendants removed the case to
federal court on October 25, 2018. [ECF No. 1]. Defendants
subsequently moved to dismiss the complaint for forum non
conveniens and lack of personal jurisdiction on November
30, 2018. [ECF No. 11]. After Plaintiff responded, [ECF No.
14], and Defendants replied, [ECF Nos. 19, 22], the Court
denied the motion to dismiss on April 29, 2019, [ECF No. 23].
Defendants then filed a motion for reconsideration, [ECF No.
26], which Plaintiff opposed, [ECF No. 27]. On July 8, 2019,
the Court denied the motion, with leave to amend as to
forum non conveniens. [ECF No. 38]. The parties then
engaged in limited discovery relating to the issue of
forum non conveniens, which concluded on July 26,
2019. [Id. at 16].
August 23, 2019, Defendants filed their second motion to
dismiss the complaint for forum non conveniens. [ECF
No. 39]. Plaintiff responded on September 6, 2019. [ECF No.
40]. The Court then permitted further briefing from
Defendants, [ECF No. 43], and Plaintiff, [ECF No. 47].
STANDARD OF REVIEW
non conveniens is a discretionary tool that allows a
district court to dismiss a claim, even when it has
jurisdiction. Adelson v. Jananel, 510 F.3d 43, 52
(1st Cir. 2007) (citing Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 507 (1947)). The Court may “decline to
exercise its jurisdiction . . . where it appears that the
convenience of the parties and the court, and the interests
of justice indicate that the action should be tried in
another forum.” Royal Bed & Spring Co., Inc. v.
Famossul Industria e Comercio de Moveis Ltda., 906 F.2d
45, 48 (1st Cir. 1990). Unlike a transfer of venue between
federal courts, which is governed by 28 U.S.C. §
1404(a), there is no statutory mechanism for federal courts
to transfer a case to foreign jurisdictions. See
Snöfrost AB v. Håkansson, 353 F.Supp.3d
99, 103 (D. Mass. 2018). “Dismissal has the practical
effect of requiring the plaintiff to file his complaint in a
more convenient forum elsewhere.” Howe v. Goldcorp
Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991).
Court begins its analysis with the presumption that the
“plaintiff's choice of forum should rarely be
disturbed.” Piper Aircraft Co. v. Reyno, 454
U.S. 235, 241 (1981). Under the two-prong test endorsed by
the First Circuit for evaluating a motion to dismiss for
forum non conveniens, the defendant “bears the
heavy burden of establishing that an adequate alternative
forum exists and that ‘considerations of convenience
and judicial efficiency strongly favor litigating the claim
in the second forum.'” Adelson, 510 F.3d
at 52 (emphasis omitted) (quoting Iragorri v. Int'l
Elevator, Inc., 203 F.3d 8, 12 (1st Cir. 2000)). The
burden on defendant is especially high where a plaintiff has
brought the action in her home forum. See Koster v.
(American) Lumbermens Mut. Cas. Co., 330 U.S. 518,
524 (1947) (holding that, where plaintiff has initiated
action in home forum, defendant must make “clear
showing” of facts that establish either
“oppressiveness and vexation” to defendant or
that chosen forum is “inappropriate”).
courts are afforded great deference in their determinations
regarding forum non conveniens. See Piper
Aircraft, 454 U.S. at 257 (“[The trial court] may
be reversed only where there has been a clear abuse of
discretion; where the court has considered all relevant
public and private interest factors, and where its ...