Opinion
Civil Action No. 03-1833.
August 13, 2004
MEMORANDUM
I. INTRODUCTION
Presently before this Court is the Defendant's, Hilton International Co. ("Hilton Intl."), Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(3), Improper Venue, and the Doctrine of Forum Non Conveniens. In its Reply Brief filed on June 24, 2004, Hilton Intl. withdrew the portion of its Motion as it relates to dismissing the Complaint pursuant to Rule 12(b)(3). Thus, the only Motion currently before this Court is Hilton Intl.'s Motion to Dismiss the Complaint under the doctrine of forum non conveniens.
II. FACTUAL AND PROCEDURAL HISTORY
This is a diversity action that arises from an injury that the Plaintiff, Ann Colantonio, suffered while she was staying at the Rome Cavalieri Hilton in Rome, Italy. Specifically, the Plaintiffs assert that the "[o]n October 9, 2001, at approximately 12:30 am, Plaintiff, Ann Colantonio, tripped and fell over a loose and defective threshold between the bathroom floor and rug in a hotel room, while staying at the Rome Cavalieri Hilton." (Compl. ¶ 9). The Complaint against Hilton Intl. was filed on March 26, 2003, No. 03-1833 (the "Original Action"). This Court has subject matter jurisdiction pursuant to diversity of citizenship. Hilton Intl. is a Delaware corporation with its principal place of business in Florida. The Plaintiffs are both residents of Philadelphia, Pennsylvania. Additionally, the Plaintiffs have sought damages over and above the statutory requirement. The Original Action has two claims. First, Mrs. Colantonio asserts that Hilton Intl. was negligent in its operation and control over the Rome Cavalieri Hilton. Second, Mr. Colantonio asserts a loss of consortium claim against Hilton Intl. arising from the injuries his wife sustained.
A second action, No. 03-5552 (the "Second Action"), was filed by the Plaintiffs against other Defendants arising from the same alleged trip and fall incident. This Second Action was filed several months after the Original Action, on October 3, 2003. The Second Action raised claims against the following Defendants: Hilton Italiana; Hilton Group Plc; Hilton Hotel Corporation of Europe; Hilton Hotel Corporation; Gestim, S.r.l.; and Hilton Reservations Worldwide L.L.C. On January 22, 2004, this Court consolidated the two cases. Thereafter, in February of 2004, after a stipulation by the parties, Defendants Hilton Hotel Corporation, Hilton Reservations Worldwide, L.L.C. and Hilton Group Plc. were dismissed from the case. Upon dismissal of those Defendants, Hilton Intl., Hilton Hotel Corporation of Europe, Hilton Italiana and Gestim, S.r.l. were the sole remaining Defendants. Subsequently, in a Memorandum Opinion and Order dated June 8, 2004, this Court dismissed the Plaintiffs' claims against Hilton Hotel Corporation of Europe, Hilton Italiana and Gestim, S.r.l. since this Court lacked personal jurisdiction over these three Defendants. See Colantonio v. Hilton Intl. Co., Nos. 03-1833, 03-5552, 2004 WL 1274387 (E.D. Pa. June 8, 2004). Therefore, the only remaining Defendant in this action is Hilton Intl.
As previously, this case arises from an alleged trip and fall of the Plaintiff, Ann Colantonio, while she was staying at the Rome Cavalieri Hilton in October of 2001. The reservations for the Rome Cavalieri Hilton were made approximately a year previous to the October 9, 2001 incident. Specifically, the reservations were made by Mr. Colantonio's niece and husband while they stayed at the Rome Cavalieri Hilton in October of 2000. As the Defendant stated in its Motion, and Plaintiffs subsequently admitted in their response, "in or about October, 2000, while at the Rome Cavalieri Hilton, [Mr. Colantonio's] niece and her husband made reservations for three rooms for a trip in October 2001, and that Plaintiffs agreed to go to Italy and stay in one of the three rooms in October 2001." (Def. Hilton Intl. Mot. to Dismiss Pls. Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue, and the Doctrine of Forum Non Conveniens, ¶ 16; Pls. Ans. to Def., Hilton Intl.'s Mot. to Dismiss Pls. Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue and Doctrine of Forum Non Conveniens, ¶ 16).
The Plaintiffs allege that Mrs. Colantonio tripped over a loose and defective threshold between the bathroom floor and the rug in the hotel room. Specifically, the Plaintiffs assert that one end of the threshold was raised approximately one inch from the floor which subsequently caused Mrs. Colantonio to trip and fall. There are disputed issues of fact outstanding as to the condition of the threshold at the time of the incident. The Plaintiffs assert that the day before the purported trip and fall, Mr. Colantonio complained to an unidentified concierge at the hotel about the raised end of the threshold. Additionally, there is a disputed issue of fact as to whether a previous attempt to repair the threshold was unsuccessful or whether the threshold was repaired after the incident on October 9, 2001.
Hilton Intl. is the sole remaining Defendant in this action, however, it is important to set forth the purported role that the dismissed Defendants played in this case, most specifically, Hilton Italiana and Gestim S.r.l. The Rome Cavalieri Hilton where Mrs. Colantonio purportedly tripped and fell is operated by Hilton Italiana and owned by Gestim S.r.l. Thus, while the operation and ownership of the Rome Cavalieri Hilton are under the auspices of the previously dismissed Defendants, the Plaintiffs assert, in part, that Hilton Intl. is a responsible party and thus a proper Defendant based on a Royalty and Management Agreement between Hilton Intl., Hilton Italiana and Gestim S.r.l. Indeed, perhaps recognizing the importance of having Hilton Italiana and Gestim S.r.l. as parties in this case, the Plaintiffs deemed it necessary to bring a second action against these and several other parties months after filing their Original Complaint against Hilton Intl.
In their Brief in opposition to Defendant's Motion, the Plaintiffs cite to and in part rely on the Royalty and Management Agreement in asserting that Hilton Intl. has the right to supervise and control the Rome Cavalieri Hilton. (Br. in Supp. of Pls. Ans. to Def., Hilton Intl. Mot. to Dismiss Pls. Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue and Doctrine of Forum Non Conveniens, at 3-4).
III. STANDARD
As courts have noted, "[t]he doctrine of forum non conveniens permits the district court, in the exercise of its sound discretion, to `resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.'" Rudisill v. Sheraton Copenhagen Corp., 817 F. Supp. 443, 445 (D. Del. 1993) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)). A district court, using its discretion, can dismiss an action "where trial will best serve the convenience of the parties and ends of justice." Koster v. Am. Lumbermans Mut. Cas. Co., 330 U.S. 518, 527 (1947). The United States Supreme Court (the "Supreme Court") has developed a two-step process to assist district courts decide motions to dismiss based on forum non conveniens. "First, dismissal is permitted only if an adequate [alternative] forum exists to hear the case." Kristoff v. Otis Elevator Co., No. 96-4123, 1997 WL 67797, at *2 (E.D. Pa. Feb. 14, 1997) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981)). "Second, if an alternative forum exists, the court considers several private and public interest factors." Id. (citing Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991)). As to the public and private factors, a motion based on forum non conveniens is based on the same factors that are applied when considering a motion to transfer venue. See Lie v. Texaco Refining Marketing, Inc., No. 89-7614, 1992 WL 7175 (E.D. Pa. 1992) (citation omitted). However, "[t]he standard for a dismissal under the doctrine of forum non conveniens is higher than the standard for transfer under § 1404(a)." Joint Stock Soc'y "Trade House of Descendants of Peter Smirnoff, Offical Purveyor to the Imperial Court" v. Heubliein, Inc., 936 F. Supp. 177, 191 (D. Del. 1996) (citingNorwood v. Kirkpatrick, 349 U.S. 29 (1955); Solomon v. Con'l Am. Life Ins. Co., 472 F.2d 1043, 1046 (3d Cir. 1973)); see also, Hall v. Nat'l Serv. Indus., Inc., 172 F.R.D. 157, 160 (E.D. Pa. 1997).
"It is settled that the defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis." Lacey, 932 F.2d at 180. Additionally, "when a plaintiff brings an action in a court with jurisdiction . . . `a plaintiff's choice of forum should rarely be disturbed.'" Lony v. E.I. Du Pont de Nemours Co., 935 F.2d 604, 608 (3d Cir. 1991) (quoting Piper, 454 U.S. at 241). In assessing the forum non conveniens motion, "the Court must accord due deference to the plaintiff's choice of forum, especially when . . . the plaintiffs are U.S. citizens." Rudisill, 817 F. Supp. at 446 (citing Piper Aircraft Co., 454 U.S. at 255-56 n. 23; Lacey, 932 F.2d at 179-80). The Supreme Court has noted:
[a] citizen's forum choice should not be given dispositive weight, however. Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.Piper Aircraft Co., 454 U.S. at 255-56 n. 23 (internal citations omitted). Additionally, courts within this District and elsewhere have held that where the operative facts giving rise to the action occur outside of the forum selected by the plaintiff, the deference given to plaintiff's choice of forum is somewhat reduced. See generally, Cameli v. WNEP-16 The News Station, 134 F. Supp.2d 403, 405 (E.D. Pa. 2001); Gaskins v. Nat'l Railroad Passenger Corp., No. 00-5144, 2001 WL 322518, at *1 (E.D. Pa. Feb. 21, 2001); Fidelity Leasing, Inc. v. Metavec Corp., No. 98-6035, 1999 WL 269933, at *2 (E.D. Pa. April 29, 1999) (citing Schmidt v. Leader Dogs for the Blind, Inc., 544 F. Supp. 42, 47 (E.D. Pa. 1982)); Edwards v. Texaco, Inc., 702 F. Supp. 101, 103 (E.D. Pa. 1988) (citing Kogok v. Fields, 448 F. Supp. 197, 201 (E.D. Pa. 1978)); Leinberger v. Webster, 66 F.R.D. 28, 34 (E.D.N.Y 1975) (citations omitted) (stating "[p]laintiff's choice of forum is not as rigidly adhered to if all the operative facts occurred elsewhere").
IV. DISCUSSION
As set out in surpa Part III, the movant, Hilton Intl., must satisfy two steps if this Court is to grant its Motion to Dismiss based on forum non conveniens. First, Hilton Intl. has to show that there is an adequate alternative forum. Only if there is an adequate alternative forum may this Court move onto the second step of balancing the relevant public and private interest factors to see if dismissal is warranted. This Court finds that Italy is an adequate alternative forum. Additionally, while some of the public and private factors are neutral, the private and public interest factors qualitatively favor dismissing this case on forum non conveniens grounds. Specifically, as will be explained, this Court finds that the relative ease of access to sources of proof, the possibility of viewing the premises, hearing all claims under one judicial roof as well as the stronger local Italian interest in this case all weigh significantly towards dismissal. Additionally, as will be explained, while this Court will give deference to Plaintiffs' choice of forum, that deference will be somewhat reduced since the operative facts giving rise to the claim occurred in Italy not in the Eastern District of Pennsylvania.
A. ADEQUATE ALTERNATIVE FORUM
The first step in determining whether to grant a forum non conveniens motion is to determine whether there is an adequate alternative forum. As both the United States Court of Appeals for the Third Circuit ("Third Circuit") and the Supreme Court have noted, "[t]he requirement of an adequate alternative forum is generally satisfied `when the defendant is `amenable to process' in the other jurisdiction.'" Lacey, 932 F.2d at 180 (citingPiper, 454 U.S. at 254 n. 22). In this case, Hilton Intl. has stated that "it is agreeable to this action proceeding against it in Italy." (Br. in Supp. of Def. Hilton Intl. Mot. to Dismiss Pls.' Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue and Doctrine of Forum Non Conveniens, at 8-9). Additionally, Hilton Intl. has informed this Court, and the Plaintiffs do not contest, that the statute of limitations in Italy for Plaintiffs' claims is five years. Thus, since the alleged incident giving rise to the claim occurred in 2001, the Plaintiffs would have at least until 2006 to file their claims in Italy. Therefore, Hilton Intl. has satisfied its initial burden by establishing that Italy would be an adequate alternative forum for Plaintiffs' claims. Next, this Court will examine whether the private and public interests weigh in favor of dismissing this case on forum non conveniens grounds.
B. PUBLIC AND PRIVATE FACTORS
The public and private factors a court has to consider in ruling on a motion to dismiss based on forum non conveniens has been set forth by the Supreme Court. Specifically:
[t]he factors pertaining to the private interests of the litigants included the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate; and all other practical problems that make trial of a case easy, expeditious and inexpensive. The public factors bearing on the question included the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.Piper Aircraft Co., 454 U.S. 241 n. 6. (internal quotation marks and citations omitted). Additionally, as previously mentioned in supra Part III, another factor this Court must consider is the Plaintiffs' choice of forum, since a plaintiff's choice of forum is something that "should not be disturbed without careful examination." Hall, 172 F.R.D. at 160. However, as the Third Circuit has noted, in properly balancing the private and public interest factors associated with a forum non conveniens doctrine, the balancing should be "essentially qualitative, not quantitative." Lacey, 932 F.2d at 182. With this as a background, and because Hilton Intl. has illustrated that Italy would be an adequate alternative forum, this Court will now weigh and balance the private and public interest factors to determine whether this case should be dismissed based on forum non conveniens.
1. Private factors
a. Plaintiffs' Choice of Forum
A plaintiff's choice of forum is often viewed as a significant factor in deciding a forum non conveniens motion. At the outset, where a "`plaintiff files suit in its home forum, that choice is entitled to considerable deference.'" Meisenhelder v. Sunbury Transport, Ltd., No. 01-5624, 2002 WL 32308675, at *3 (E.D. Pa. Jan. 22, 2002) (quoting Am. Argo v. United States Fid. Guar. Co., 590 F. Supp. 1002, 1004 (E.D. Pa. 1984)). However, "[t]he doctrine of forum non conveniens is discretionary in nature, it permits dismissal where plaintiff's forum choice is oppressive and vexatious to defendant or where administrative and legal difficulties make the chosen forum otherwise inappropriate." Day Zimmerman, Inc. v. Exportadora Salcedo De Elaboradoros de Cacao, S.A., 549 F. Supp. 383, 385 (E.D. Pa. 1983) (citations omitted). Additionally, as set out in supra Part III, if the operative facts giving rise to the complaint occurred outside of the chosen forum, courts reduce the deference owed to a plaintiff's choice of forum.
In this case, the Plaintiffs reside within in this District, and thus the Eastern District of Pennsylvania is their home forum. However, this Court finds that the operative facts giving rise to Plaintiffs' claims against Hilton Intl. arose outside of this forum. Specifically, the operative facts giving rise to the Plaintiffs' claims occurred in Italy. First, the Plaintiffs' Complaint arises from Mrs. Colantonio's alleged trip and fall over a raised threshold found in her Rome hotel room. Thus, the Plaintiffs are in agreement that their case is based on a "premises liability, personal injury negligence case." (Def. Hilton Intl. Mot. to Dismiss Pls.' Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue, and Doctrine of Forum Non Conveniens, ¶ 2); (see also, Pls.' Ans. to Def. Hilton Intl. Mot. to Dismiss Pls.' Compl. Pursuant to F.R.C.P. 12(b)(3), Improper Venue and Doctrine of Forum Non Conveniens, ¶ 2). Second, the liability of the sole remaining Defendant in this action, Hilton Intl., is based, at least in part, on a Royalty Agreement Hilton Intl. has with the now dismissed Defendant Gestim S.r.l, and a Management Agreement between Hilton Intl. and the previously dismissed Defendant Hilton Italiana. Indeed, the Plaintiffs state that they intend to use the Management Agreement and the Royalty Agreement to show that "Hilton [Intl.] has the right to supervise and control Hilton Italiana in its management and operation of the Rome Cavalieri Hilton." (Pls. Sur Response to Def., Hilton Intl. Rep. Brief in Supp. of its Mot. to Dismiss Pls. Compl. Pursuant to Doctrine of Forum Non Conveniens, at 4). Thus, to the extent Hilton Intl. is liable, it is, at least in part, because Hilton Intl. had agreements with Italian Corporations regarding the ownership and operation of a hotel in Rome, Italy. Third, to the extent a relationship existed between Hilton Intl. and the Plaintiffs, such a relationship would have been formed in Italy since that is where the reservations were made for the Rome Cavalieri Hilton. Therefore, while this Court gives Plaintiffs' choice of forum deference, since the operative facts giving rise to the claims against Hilton Intl. occurred in Italy, that deference is somewhat diminished.
b. Relative Ease of Access to Sources of Proof
The next factor this Court must consider is the relative ease of access to sources of proof. As both parties have articulated in their Briefs, this case involves a trip and fall that occurred at the Rome Cavalieri Hilton. Thus, this is a premises liability action. The Plaintiffs assert that Hilton Intl. is a liable party because under the Management and Royalty Agreements between Hilton Italiana, Gestim S.r.l and Hilton Intl., it had the right to supervise and control Hilton Italiana, which was responsible for the management and operation the Rome Cavalieri Hilton. Therefore, any sources of proof in this case are located in Italy, with the exception of that portion of Mrs. Colantonio's medical treatment occurring in and around Philadelphia, Pennsylvania.
Additionally, since this Court lacks personal jurisdiction over Gestim S.r.l and Hilton Italiana pursuant to the June 8, 2004 Memorandum Opinion and Order, obtaining access to these documents would prove far easier in Italy. Thus, this factor weighs in favor of dismissal.
c. Availability of Compulsory Process for Attendance of Unwilling Witnesses, and the Cost of Obtaining Attendance of Willing Witnesses
The next factor this Court must consider is the availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining attendance of willing witnesses. The Plaintiffs have set forth two sets of non-party witnesses they intend to call. First, the Plaintiffs state that their daughter, Beverly Colantonio ("Beverly"), is a key witness to their claims and that she resides in Pennsylvania. The Plaintiffs assert that Beverly is an eyewitness to the raised condition of the threshold in the hotel room. Thus, since she lives in Pennsylvania, it would be inconvenient for her to travel to Italy to testify in this case if this Court was to grant Hilton Intl.'s Motion to Dismiss Pursuant to Forum Non Conveniens.
Next, the Plaintiffs state that all of Mrs. Colantonio's medical providers maintain practices in and around the Philadelphia region. However, it is important to note that these medical professional witnesses treated plaintiff subsequent to the accident. Thus, as one court has noted, "[e]ven where `the overwhelming number of plaintiff's possible witnesses include medical professionals who treated plaintiff subsequent to the accident,' the case may be transferred because damage testimony would become relevant only if plaintiffs were to succeed on liability." Schmidt, 544 F. Supp. at 48 (quoting Bartolacci v. Corp. of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints, 476 F. Supp. 381, 384 (E.D. Pa. 1979)) (other citations omitted). As the court noted inBartolacci, "the overwhelming number of plaintiff's possible witnesses include medical professionals who treated plaintiff [s]ubsequent to the accident. Their testimony will be largely irrelevant to defendant's alleged liability, and will become relevant only if plaintiff is successful at trial." 476 F. Supp. at 384. Additionally, "consideration of witnesses' convenience depends on the number of critical witnesses and the relative weight of the issues of liability and damage." See, Schmidt, 544 F. Supp. at 48. In this case, as in Schmidt, the convenience of liability witnesses is of greater significance. Finally, this Court notes that "expert medical testimony is frequently offered by way of video depositions and often proves more cost effective and expeditious than live testimony." Bretz v. Exel Logistics, Inc., No. 92-2067, 1992 WL 212343, at *3 (E.D. Pa. Aug. 22, 1992) (citing Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1317 (E.D. Pa. 1982)). Thus, the fact that the bulk of Mrs. Colantonio's medical care occurred in and around this District is not an obstacle to allowing this action from proceeding in Italy. See id. Therefore, this Court finds that while it will give some weight to the medical professional witnesses listed by the Plaintiffs, the relative weight given to these medical witnesses is diminished.
While both Schmidt and Bartolacci involved motions to transfer, as previously stated the factors a court considers in a motion to transfer and a motion to dismiss pursuant to the doctrine of forum non conveniens are one in the same. Thus, the decisions in both Schmidt and Bartolacci have relevance to the instant motion.
The Defendant has listed numerous witnesses that allegedly have relevant testimony regarding the liability issue. However, while this Court recognizes that Hilton Intl. has set forth approximately fifteen witnesses, it is the quality of these witnesses' testimony rather than the sheer number of the witnesses listed that should be considered under this factor.See Schmidt, 544 F. Supp. at 48 (citing Bartolacci, 476 F. Supp. at 383; WRIGHT, MILLER COOPER, FEDERAL PRACTICE AND PROCEDURE § 3851 (1976)) (stating "[l]ocation of the witnesses is important; but it is the quality, not quantity, of witness testimony which must be considered").
The witnesses Hilton Intl. has listed all reside or presumably reside in Italy. They can be separated into four distinct groups. First, Hilton Intl. lists eleven witnesses who were or still are part of the housekeeping staff at the Rome Cavalieri Hilton and who worked on the same floor as the Colantonio's when the alleged injury occurred. Second, Hilton Intl. states that Dr. Maurice Yacoub is a relevant witness since he entered the room in which Mrs. Colantonio was injured and initially treated her while she was in Rome. Third, Hilton Intl. states that Massimiliano Bellinzoni ("Bellinzoni") and Roberto Baldeschi ("Baldeschi") are relevant witnesses who both reside in Italy. Hilton Intl. states that Bellinzoni is the chief engineer and Baldeschi is the security officer who initially took the security report from Dr. Yacoub. Finally, Hilton Intl. asserts that to the extent the Plaintiffs seek to hold Hilton Intl. liable under a theory of agency, it will be necessary to call witnesses from Gestim S.r.l. and Hilton Italiana who are located in Italy.
The Plaintiffs assert that all of the witnesses listed by Hilton Intl. are not relevant to the case and, therefore, should not be considered as important witnesses. While this Court agrees that some of these witnesses are perhaps irrelevant to the issues of this case, this Court is not prepared to completely dismiss the relevancy of all of these witnesses. The Plaintiffs argue that all of the witnesses listed by the Defendant are not relevant witnesses since they either did not witness the accident nor were they aware of the raised threshold which purportedly caused Mrs. Colantonio to trip and fall and injure herself. However, there is a dispute among the parties as to the alleged defective condition of the threshold at the time of the incident. Additionally, while the Plaintiffs assert that the threshold was repaired on the day of the incident, the Defendants state that there is no such record of any repair. Thus, the testimony of the Chief Engineer, Bellizonni becomes more relevant to the issues in this case since he would have knowledge into the repair record. Secondly, while the Plaintiffs attempt to argue that Dr. Yacoub is an irrelevant witness, this Court notes that he was the initial doctor who treated Mrs. Colantonio as well as someone who was present in the room soon after the incident. These two witnesses are located in Italy. Finally, this Court agrees with the Defendant that since the Plaintiffs are attempting to hold Hilton Intl. liable under a theory of agency, it might be necessary to establish the agency relationship through testimony from witnesses found in Italy and in Europe. Both sides have illustrated to this Court the inconvenience of witnesses if this case were to proceed in Italy or Pennsylvania. However, with the exception Beverly Colantonio, all of the Plaintiffs witnesses relate to damages, whereas Defendant's witnesses all relate to the issue of liability. Thus, this Court finds that this factor is a neutral factor.
For example, while the Plaintiffs apparently complained to a hotel concierge on October 8, 2001 about the condition of the threshold, this witness has not been identified by either party. Thus, while this witness might provide key testimony, this Court cannot consider this witness as a factor in the instant Motion since neither side has identified him.
This Court notes however, that Plaintiffs state that while Dr. Yacoub was in the room soon after the incident, it appears as if he does not remember the condition of the threshold.
d. Possibility of Viewing the Premises
As previously mentioned, this case involves a premises liability action arising from an allegedly raised threshold at the Rome Cavalieri Hilton hotel room. The parties dispute the applicability of this factor. Specifically, a point of contention is whether the threshold is in the same condition as it was at the time of Mrs. Colantonio's trip and fall. The Defendants assert that there is no record of any repairs being reported regarding the threshold at issue. If this turns out to be true or is believed by the fact finder, then a jury view becomes more important. Thus, to the extent this factor is considered, it balances more towards granting Defendant's Motion since the location of the hotel room is in Rome, Italy.
e. Practical Problems that make Trial of a Case Easy, Expeditious and Inexpensive.
The Plaintiffs initially brought suit only against Hilton Intl. Then, several months later, the Plaintiffs deemed it necessary to bring suit not only against Hilton Intl. but also against the owner and operator of the Rome Cavalieri Hilton, Gestim S.r.l. and Hilton Italiana respectively, as well as other corporations. On June 8, 2004, this Court dismissed Gestim S.r.l. and Hilton Italiana because of a lack of personal jurisdiction. As the Third Circuit noted in Lacey, a court should not "minimize the importance of getting all concerned parties under one judicial roof." 932 F.2d at 190. Here, a single judicial roof exists, but it exists in Italy and not in this District. Indeed, the Plaintiffs deemed it necessary to include these Italian Corporations so as to file a second suit well after the filing of the initial Complaint against Hilton International. Thus, this factor weighs significantly in favor of the Defendant.
f. Lack of Contingency Fee Arrangement in Italy
The Plaintiffs assert that since Italy does not allow contingency fees, they would be unable to litigate this case if it was dismissed by this Court. While this Court agrees with the Plaintiffs that courts have considered the lack of contingency fees as a factor to be weighed in a forum non conveniens motion, for the following reasons, this Court will not consider this as a factor weighing against dismissal under the facts of this case.
Plaintiffs' argument regarding this factor is that: "[p]laintiffs are informed that attorneys in Italy do not accept personal injury cases on a contingency fee basis. Since the Colantonios are financially unable to pay an Italian lawyer to handle this case on an hourly basis, as a practical matter, this case cannot be litigated in Italy." (Brief in Supp. of Pls.' Ans. to Def., Hilton Intl. Mot. to Dismiss Pls.' Compl. Pursuant to F.R.C.P. 12(b)(3), at 13). As this District has noted, "[t]he majority of courts reviewing plaintiff's ability to litigate in the foreign forum consider the absence of a contingency fee arrangement one of the balancing factors in a forum non conveniens analysis, not an argument against availability of an alternative forum." Kristoff, 1997 WL 67797, at *2 (citingMurrary v. British Broad. Corp., 81 F.3d 287, 292-93 (2d Cir. 1996); Magnin v. Teledyne Con'l Motors, 91 F.3d 1424, 1430 (11th Cir. 1996)).
Aside from Plaintiffs' assertion that they would be unable to hire an attorney in Italy, the Plaintiffs' have come forward with no additional facts to support their claim. Thus, it is unlike other cases which have found that a lack of a contingency fee system was to be considered as a factor. For example, inFiorenza v. U.S. Steel Int'l, Ltd., 311 F. Supp. 117 (S.D.N.Y. 1969), the court stated that "plaintiff maintains that he is impercunious and has no source of income, that he has been unable to work since the accident and that, as a result, he and his family depend upon his brother, with whom they live, for support." Id. at 120. In another case, a plaintiff submitted an affidavit which showed that she owed $10,000 in medical bills, that her medical insurance was due to expire and that she had assets of under $50. See McKrell v. Penta Hotels (France), S.A., 703 F. Supp. 13, 13-14 (S.D.N.Y. 1989). Finally, in a more recent case decided in this District, a court stated dismissal was proper, at least in part, because the plaintiff was not without assets and that the plaintiff had an adequate amount of time to save or borrow money before the foreign statute of limitations expired. See Kristoff, 1997 WL 67797, at *4.
This Court has no information regarding the Colantonio's present financial situation, and certainly does not have nearly the specific information provided to the courts in Fiorenza andMcKrell. Additionally, neither party has informed this Court what a retainer would cost in Italy. However, this Court notes that the Plaintiffs will presumably have until 2006 to file their Complaint in Italy. Therefore, there is more than an adequate amount of time to pursue this action in Italy if the Plaintiffs so desire.
2. Public Factors
Next, this Court must consider the public factors to determine whether dismissal pursuant to the doctrine of forum non conveniens is warranted. This Court will only consider the public factors relevant to the instant Motion. Thus, for example, this Court will not consider the relative court congestion between this District and the courts in Italy since it is not a factor raised by the Defendant. However, the remaining public factors raised by the Defendant will be analyzed.
a. Local Interest in Having Localized Controversies Decided at Home
The parties are in disagreement as to whether Italy or Pennsylvania has a greater interest in the litigation. This Court finds that Italy has a greater interest in this litigation and, therefore, this factor weighs in favor of granting Defendant's Motion. Pennsylvania has no connection with the facts giving rise to this cause of action except that the Plaintiffs both reside within the District and some subsequent medical treatment occurred here. Additionally, the nature of the relationship between the Plaintiffs and the Defendant was not formed in Pennsylvania, but rather was formed in Italy since the reservations for the Rome Caveileri Hilton were made while the Plaintiffs' niece and her husband were in Rome in October of 2000. See Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 344 (7th Cir. 1983) (stating district court failed at least in part to recognize the interest Iowa had to the litigation where Iowan residents made hotel reservations through a travel agency in Iowa).
The court in Kristoff also dealt with a motion to dismiss based on forum non conveniens. In that case, a resident of Philadelphia was injured by an elevator at a resort in the Bahamas. Kristoff, 1997 WL 67797, at *1. The defendant in that case, Otis Elevator Company ("Otis"), manufactured and installed the elevator at issue. Id. As to the public interests, the court stated the following:
Pennsylvania has no connection with the facts giving rise to this cause of action except that Kristoff resides here and some consequential medical treatment occurred here. Kristoff purchased a vacation package through a U.S. travel agency, but Otis, although amenable to suit in Pennsylvania, has no possible contacts with Kristoff other than in the Bahamas. The district court has little interest in adjudicating the proper maintenance of a Bahamian elevator, even if its malfunction injured a local resident while she was voluntarily in the Bahamas.Id. at *4. Similar to Kristoff, this Court finds that Pennsylvania has a small interest in adjudicating the proper maintenance of an Italian hotel room even if its supposed defect injured a local Pennsylvania resident while in Italy. Additionally, and unlike in Kristoff, the reservations for the Plaintiffs' stay in Italy were not made in the United States, but rather were made in Italy which supports the notion that Italy has a stronger local interest in the outcome of this litigation since that is where any connection between Hilton Intl. and the Plaintiffs would have been formed. Thus, this factor weighs in favor of granting Defendant's Motion since Italy has the larger interest in the litigation.
b. Imposition of Jury Duty on a Community with no Relation to the Litigation
As stated in supra Part IV.B.2.a, Italy has a stronger interest in the outcome of this litigation. Mrs. Colantonio and her husband voluntarily traveled to Italy after reservations were previously made for them in Italy. Mrs. Colantonio tripped and fell while staying in her Rome hotel room. Thus, because of these facts, Italy has a much stronger interest to the litigation than does Pennsylvania. Therefore, if this Court were to impose jury duty on Pennsylvanians, it would be imposing jury duty on citizens who have little to no relation with the litigation. The only aspect of this case related to Pennsylvania is that the Plaintiffs reside here and some subsequent medical treatment occurred here. Since the crux of this case is a trip and fall that occurred in Italy, and the liability owed to the Plaintiffs by Hilton Intl. allegedly arises, at least in part, from a purported agency relationship formed in Italy between Hilton Intl. and Hilton Italiana, Italy has a stronger relation to this case. Thus, imposing jury duty on citizens who have little to no relation to this case makes this factor weigh in favor of the Defendant's position.
c. Foreign Law and Perceived Problems Regarding Conflicts of Law
This Court finds that it must remain neutral as to the applicability of foreign law, or any perceived problems associated with conflicts of law. Initially, this Court notes that "in choosing which law applies, a federal court sitting in diversity must apply the choice of law rules of the forum state."LeJune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996) (citations omitted). Thus, this Court will apply the choice of law rules of Pennsylvania. Under Pennsylvania choice of law rules, "a court must first look to see whether an actual conflict exists between the laws of the competing jurisdictions." Liebman v. Prudential Fin., Inc., No. 02-2566, 2003 WL 22741415, at *2 (E.D. Pa. Nov. 13, 2003). "If there is no difference between the laws of the forum state and those of the foreign jurisdiction, the court may bypass the choice of law issue and rely interchangeably on the law of both states, although presumably the law of the forum state applies." Id. (citing Lucker Mfg. v. Home Is. Co., 23 F.3d 808, 813 (3d Cir. 1994); Nova Telecom, Inc. v. Long Distance Mgmt. Sys., Inc., No. 00-2113, 200 WL 1593994, at *6-7 (E.D. Pa. Oct. 26, 2000).
In this case, the Defendant has not come forward with any reference to or citation to any Italian law other than the fact that the statute of limitations in Italy is five years. As this Court noted in supra Part III, the movant bears the burden of persuasion as to all elements in bringing a motion to dismiss based on forum non conveniens. See Lacey, 932 F.2d at 180. Thus, this Court finds that it cannot give any weight to this factor. Since the Defendant has not come forward with any evidence regarding any difference between Italian law and Pennsylvania law on either the issue of negligence or agency, this Court will not consider this factor in its analysis.
This Court does however note, that the Royalty and Management Agreement is governed by Italian law. Thus, to the extent the Plaintiffs intend to rely on this Agreement, any interpretation of it would most probably be decided under Italian law.
V. CONCLUSION
This Court has found that an adequate alternative forum exists in Italy. Furthermore, evaluation of the public and private factors weighs towards dismissal based upon forum non conveniens. While some of the private and public factors are not relevant or are neutral, the Third Circuit has stated that a district court must consider the public and private factors on a qualitative rather than a quantitative basis. In this case, all of the public factors are either neutral or weigh heavily towards dismissal. Importantly, this Court notes the significantly stronger interest that Italy has to this action. As to the private factors, this Court has given Plaintiffs' choice of forum the proper amount of weight, realizing that while the Plaintiffs reside in this District, the operative facts giving rise to the claim occurred in Italy. As to the witnesses, both sides have shown to the Court witnesses that will be inconvenienced if this case were to move forward in either Italy or in this District. However, while the Defendant's witnesses relate to the issue of liability, all but one of the Plaintiffs' witnesses relate to the issue of damages. Thus, to the extent this factor is considered, it is neutral. Since the accident occurred in Italy, and there remain issues of fact which might make a jury view applicable, this factor favors dismissal. Since the injury occurred in an Italian hotel room which was under the operation and control of an Italian corporation no longer a party to this suit, the ease of access to sources of proof weighs towards dismissal. Importantly, the respective owners and operators of the Rome Cavalieri Hilton were previously dismissed as Defendants due to a lack of personal jurisdiction. Thus, this Court agrees with the Defendant that it would be far better to try all of the issues surrounding this case with all of the possible liable parties under "one roof." That roof exists, but it exists in Italy. Therefore, after carefully balancing the public and private factors, this Court will dismiss Plaintiffs' Complaint under the doctrine of forum non conveniens.
An appropriate Order follows.
ORDER
AND NOW, this 13th day of August, 2004, upon consideration of Defendant's, Hilton International, Co., Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(3), Improper Venue, and the Doctrine of Forum Non Conveniens (Doc. No. 23), the Repsonse, Reply and Sur-Replies attached thereto, it is hereby ORDERED that the Motion is GRANTED and Plaintiffs' Complaint is DISMISSED pursuant to the doctrine of forum non conveniens.