E-Alert Case Updates

Fourth Circuit Reverses and Remands Maryland District Court Grant of Summary Judgment for Defendant, Marriott International, on the Basis of Forum Non Conveniens

Mary DiFederico v. Marriott International, Incorporated
United States Court of Appeals for the Fourth Circuit, No. 12-1635 (4th Cir. May 1, 2013)
by Jhanelle Graham, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

In Mary DiFederico v. Marriott International, Inc., the United States Court of Appeals for the Fourth Circuit was asked to determine whether, on the basis of forum non conveniens, Pakistan was an available, adequate, and far more convenient forum to hear a wrongful death action and survivorship case against Defendant, Marriott International (“Marriott”). Writing for the appellate court, Circuit Judge Roger L. Gregory reversed the district court’s grant of summary judgment in favor of Marriott and remanded the case for further proceedings.

Marriott operates and franchises over three thousand (3,000) hotels and resorts in sixty-seven (67) different countries. The Marriott Islamabad was a franchise hotel owned and operated by Hashwani Hotels Limited (“Hashwani”), a public limited company organized under the laws of Pakistan. Albert DiFederico, was a former naval commander who was serving as a civilian contractor for the State Department in Pakistan, when he was killed in a terrorist attack on the Marriott Islamabad Hotel. The incident occurred on September 20, 2008, when a large dump truck containing over one thousand (1,000) pounds of explosives, artillery shells, mortar bombs, and shrapnel tried unsuccessfully to ram through the gate barrier of the Marriott Islamabad Hotel. Security personnel approached the truck, apparently mistaken that a traffic accident had occurred, and the driver detonated an explosion inside the cab of the vehicle. Upon seeing the fire, the security team began searching for a fire extinguisher but did not warn hotel guests of any danger. Shortly thereafter, the explosives in the back of the truck ignited, creating a large blast that engulfed the hotel and killed fifty-six (56) people—including Albert DiFederico—while injuring at least two hundred-and sixty-six (266) more.

In June, 2011, Albert DiFederico’s widow, Mary DiFederico, and their three (3) sons, filed a federal action asserting wrongful death and survivorship claims in Maryland, the forum of Marriott’s principal place of business. The suit alleged that Marriott was liable for its failure to secure adequately its franchise hotel. Specifically, the wrongful death action alleged that Marriott: (1) failed to notify or evacuate guests upon the first explosion; (2) failed to implement proper measures to put out the fire at the security gate; (3) failed to train and supervise adequately security employees; (4) failed to provide adequate fire-safety devices; (5) failed to implement additional security measures concomitant with the then-current threat in Pakistan; and (6) fell below the standard of care in providing for the safety of its hotel guests. The complaint also set forth a claim for vicarious liability based on a negligent security theory.

On September 19, 2011, Marriott moved to dismiss the complaint based on the doctrine of forum non conveniens. In granting the motion, the Maryland district court first found that although the statute of limitations might bar the DiFedericos’ claim in Pakistan, it posed no bar to dismissal because the DiFedericos were responsible for a “tactical decision” not to litigate within the statute of limitations in Pakistan. The court then found that Pakistan provided an adequate forum for adjudication, relying in large part on an affidavit from Marriott’s expert witness, an experienced Pakistani attorney. Finally, the court weighed the applicable public and private interest factors, and found that almost all factors weighed heavily in favor of dismissal. The DiFedericos timely filed an appeal to the United States Court of Appeals for the Fourth Circuit.

First, citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981), the appellate court articulated that a district court’s decision to dismiss a case pursuant to the doctrine of forum non conveniens is an abuse of discretion if “it failed to consider a material factor or clearly erred in evaluating the factors before it, or did not hold the defendants to their burden of persuasion on all elements of the . . . analysis.” Galustian v. Peter, 591 F.3d 724, 731 (4th Cir. 2010). Additionally, when considering a motion to dismiss on forum non conveniens grounds, an appellate court must determine that the alternative forum is available to the plaintiff, that the alternative forum is adequate, and that the alternative forum is more convenient in light of the public and private interests involved. Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011). Additionally, the defendant bears the burden of proving the adequacy, availability and overall convenience of the alternative forum. Galustian, 591 F.3d at 731.

Second, the appellate court noted that Pakistan’s Limitation Act of 1908 prescribes a one (1) year statute of limitations for all claims by executors, administrators, or representatives brought under the Fatal Accidents Act of 1855. The court acknowledged that an expired statute of limitations is usually dispositive in a forum non conveniens analysis, but also stated that the Fourth Circuit has recognized an exception where it can be shown that the plaintiff made a deliberate and tactical decision to run the statute of limitations for the purpose of avoiding dismissal in her preferred forum. Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 202‒03 (4th Cir. 2009). Unlike in Compania Naviera, the appellate court opined that the district court failed to point to any evidence substantiating its determination that the DiFedericos made a deliberate and tactical decision to let the statute of limitations run in Pakistan to avoid dismissal. Rather, the appellate court determined that the district court made only a conclusory statement in its opinion that “the Plaintiffs decided not to litigate in Pakistan” because of their assessment they would not benefit in doing so. Moreover, according to the appellate court, when the DiFedericos noted during the hearing that Marriott could not waive its statute of limitations defense and that dismissal in a Pakistani court would be automatic, the court did not inquire further into the matter, nor did Marriott allege that the DiFedericos had been purposefully dilatory or otherwise respond to the argument on rebuttal.

Finally, the Fourth Circuit highlighted that the DiFedericos were entitled to heightened deference in their choice of home forum. The appellate court then proceeded to inquire into the district court’s balancing of public and private factors guiding the analysis of a motion to dismiss under forum non conveniens. According to the Fourth Circuit, the fear and emotional trauma involved in travel to Pakistan for a trial concerning such a politically charged event would give rise to a bevy of logistical concerns and expenses. Thus, the DiFedericos would be inconvenienced by these logistical complexities, and it would be a perversion of justice to “force a widow and her children to place themselves in the same risk-laden situation that led to the death of a family member.” Consequently, the appellate court held, inter alia, that the district court erred in concluding that the application of foreign law in a Maryland court would be overly burdensome for the court and unfair to Marriott, which was an American-based company. For these reasons, the Fourth Circuit reversed and remanded the case for further proceedings.