Opinion
CIVIL ACTION NO. 00-2554 SECTION "N".
December 14, 2000.
ORDER AND REASONS
Before the Court are defendants Park Place Entertainment Corp.'s and Hilton Hotel Corp.'s Motion to Dismiss Based on Prescription, or in the alternative Motion to Transfer Venue. For the following reasons, defendants' motion to transfer venue is GRANTED.
BACKGROUND
On September 2, 1998, plaintiff Robert A. Dauterive ("Dauterive") was allegedly injured when he slipped in a puddle of water in his hotel room at the Hilton Hotel and Casino in Las Vegas, Nevada. On August 28, 2000, Dauterive filed the instant action in this Court on the basis of diversity jurisdiction.
Defendants Park Place Entertainment Corp. ("Park Place") and Hilton Hotel Corp. ("Hilton") now move the Court to dismiss Dauterive's complaint based on prescription or, alternatively, to transfer venue to Nevada.
LAW AND ANALYSIS
Both parties acknowledge that, under Louisiana's choice of law rules, Nevada's substantive law governs the merits of Dauterive's claim. However, Park Place and Hilton argue that Louisiana's prescription law should apply.
Louisiana Civil Code article 3549 provides that:
When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
(1) If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice.
LA. Civ. CODE ANN. art. 3549 (West 2000).
Park Place and Hilton concede that Dauterive's lawsuit would not be barred in Nevada, which has a two year prescriptive period for actions "to recover damages for injuries to a person or for the death of a person caused by the wrongful act or neglect of another." See Nev. Rev. Stat. 11.190 (1999). However, they submit that there are no "compelling considerations of remedial justice" that warrant maintaining Dauterive's action in Louisiana.
Comment (f) to the 1991 Revision Comments of article 3549 explains that "compelling considerations" refer to:
cases where "through no fault of the plaintiff an alternative forum is not available as, for example, where jurisdiction could not be obtained over the defendant in any state other than the forum or where for some reason a judgment obtained in the other state having jurisdiction would be unenforceable in other states . . . also situations where suit in the alternative forum, although not impossible would be extremely inconvenient for the parties."
LA. CIV, CODE ANN. art 3549, comment (f) (quoting Restatement (Second) of Conflict of Laws, 1986 Revisions, § 142 comment (f) (Supp. March 31, 1987)) (West 2000).
Although there is little jurisprudence surrounding the "compelling considerations" exception, a number of cases "have found that the exception does not apply in cases . . . where the plaintiffs have litigated their claims in Louisiana as a matter of choice and not a matter of necessity." In re Ford Motor Co. Vehicle Paint Litig., 1996 WL 661052, at *3 (E.D.La. Nov. 12, 1996) (Vance, J.). See, also, Skyrme v. Diamond Offshore (U.S.A.), Inc., 1994 WL 320928, at *2-3 (E.D.La. June 30, 1994) (rejecting argument that article 3549 should not apply to Brazilian resident who "desires to litigate this claim in Louisiana as a matter of choice, not necessity")
In the case at bar, Dauterive has chosen to file suit in Louisiana instead of Nevada because traveling to Nevada would be expensive and inconvenient for him and his witnesses. However, the mere expense and inconvenience of filing suit in another state has not been held to be a compelling consideration warranting suspension of Louisiana's prescription laws. See, e.g., Seagrave v. Delta Airlines, Inc., 848 F. Supp. 82, 85 (E.D.La. April 6, 1994) (Livaudais, J.) (holding that the costs and inconvenience of filing suit in Virginia after plaintiff moved to Louisiana are not compelling considerations of remedial justice under article 3549). Accordingly, the Court finds that no compelling considerations exist and that Dauterive's action has prescribed under Louisiana law.
However, the Court does not find that dismissing Dauterive's action would be in the best interests of justice because Dauterive may now be prevented from filing suit in Nevada. Although the Court recognizes that Louisiana Civil Code article 3549 contemplates the dismissal of the action, under 28 U.S.C. § 1404(a) a district court may transfer any civil action to any other district or division where it may have been brought.
Seagrave v. Delta Airlines, Inc., 848 F. Supp. 82 (E.D.La. April 6, 1994) (Livaudais, J.), involved facts very similar to those in the case at bar. In Seagrave, the plaintiff filed suit in Louisiana but Virginia substantive law applied. At the time he filed suit, the plaintiffs action had prescribed in Louisiana but not in Virginia. By the time the defendant filed a motion to dismiss, the plaintiff's cause of action had also prescribed under Virginia law. Therefore, dismissing the plaintiffs claim under article 3549 would have prevented the plaintiff from bringing suit in any forum. The court held that "given Louisiana's stronig policy of providing remedies to tortiously injured plaintiffs and deterring wrongful conduct . . . and the practical solution offered by [transferring venue], . . . a transfer comports with both the directive of article 3549 and the interests of justice." Id. at 86.
The Court finds that the principles of Seagrave apply in the instant case. When Dauterive filed suit in Louisiana, his claim had not prescribed in Nevada. However, dismissing Dauterive's claim at this point would prevent him from bringing a cause of action altogether. Accordingly, because Dauterive could have originally brought suit in Nevada and because the defendants have asked the court to transfer the case to Nevada as an alternative to dismissal, this action shall be TRANSFERRED to United States District Court for the District of Nevada.
CONCLUSION
IT IS ORDERED that defendants Park Place Entertainment Corp.'s and Hilton Hotel Corp.'s motion to transfer venue is GRANTED.
IT IS FURTHER ORDERED that this action be TRANSFERRED to the United States District Court for the District of Nevada.