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COLANTONIO v. HILTON INTERNATIONAL CO.

August 13, 2004.

ANN COLANTONIO and JOHN COLANTONIO, h/w, Plaintiffs,
v.
HILTON INTERNATIONAL CO., Defendant.



The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge

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.*fn1 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.

  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) (citing Norwood 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 (citing Piper, 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 ...


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