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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