Friday, May 24, 2013

Fourth Circuit Considers When Forum Non Conveniens is Appropriate

              On May 1, 2013, the Fourth Circuit reversed and remanded the Maryland District Court’s grant of Summary Judgment in favor of Defendant, Marriott International, in a federal action asserting wrongful death and survivorship claims brought by the widow and children of Albert DiFederico, who was a civilian contractor for the State Department killed in a terrorist attack while working in Pakistan.  Albert Federico was killed on September 20, 2008, when an individual driving a dump truck filled with over one thousand pounds of explosives entered the driveway of the Marriot Islamabad Hotel and tried to drive through the security gate barrier.  The explosives malfunctioned but seven minutes later a second explosion in the rear of the truck claimed the lives of over fifty people and injured over two-hundred-and-fifty others.  

                The wrongful death action brought by Albert Difederico’s widow, Mary DiFederico and there three sons in June, 2011, alleged vicarious liability and that Marriott failed to adequately secure its hotel in Pakistan by (1) failing to notify and/or evacuate guests after the first explosion; (2) failing to take proper measures in putting out the fire at the security gate; (3) failing to train and accurately supervise its security employees; (4) failing to provide adequate fire-safety devices; (5) failing to implement additional security measures that were necessary in light of the threat in Pakistan; and (6) breaching the standard of care owed to its hotel guests with respect to their safety. 

              The Maryland District Court granted Summary Judgment in favor of Marriott on grounds of forum non conveniens, determining that Mary DiFederico and her sons made a “tactical decision” by filing suit after Pakistan’s one-year statute of limitations for claims by executors, administrators, or representatives had expired.  The district court determined that Pakistan was an adequate forum for adjudicating this matter and upon weighing the public and private factors found that these factors favored dismissal. 

              On appeal, the Fourth Circuit addressed whether the district court erred when it dismissed the claim on the basis of forum non conveniens.  The Fourth Circuit, citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) found that the district court’s dismissal constituted an abuse of discretion.  When an appellate court considers whether dismissal for forum non conveniens is appropriate, there must be an alternative forum available for the plaintiff, that forum must be adequate, and that forum most be convenient when weighing the public and private interests.  Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011).  The burden in establishing the availability, adequacy, and convenience of the alternative forum rests on the Defendant.  Galustian v. Peter, 591 F.3d 724, 731 (4th Cir. 2010).  The Fourth Circuit found that the district court’s statements with regards to the DiFederico’s decision not to file suit in Pakistan were conclusory and that the district court failed to inquire into whether dismissal in a Pakistani court would in fact be automatic. 

              The Fourth Circuit emphasized that deference was due to the DiFedericos with respect to their choice of forum.  The Fourth Circuit considered the district court’s balancing of public and private factors and empathized with the Difredericos with respect to the fear and emotional trauma the family would experience in bringing suit in Pakistan and the overall expense of bringing suit in a foreign country.

            The Fourth Circuit ultimately found that the Maryland District Court erred in its determination that it would be unduly burdensome for a Maryland court to apply foreign law and that it would be unfair for Marriott, an American-based company with over three thousand hotels and resorts in sixty-seven different countries.  In light of this, the Fourth Circuit reversed and remanded the lower court. 

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