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Nandjou v. Marriott International, Inc.

United States District Court, D. Massachusetts

October 28, 2019

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,
v.
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

         Plaintiff 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 (“Reluxicorp”) (collectively “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 “Compl.”)].

         Presently 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.

         I. BACKGROUND

         The 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.].

         Plaintiff 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].

         Reluxicorp 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].

         On or 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. ¶ 61].

         II. PROCEDURAL HISTORY

         Plaintiff 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].

         On 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].

         III. STANDARD OF REVIEW

         Forum 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).

         The 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”).

         Trial 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 ...


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