United States District Court, E.D. Pennsylvania
August 13, 2004.
ANN COLANTONIO and JOHN COLANTONIO, h/w, Plaintiffs,
HILTON INTERNATIONAL CO., Defendant.
The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge
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
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, ¶
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.
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").
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 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
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,
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
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).*fn2 As the court noted in
Bartolacci, "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.
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.*fn3 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.*fn4 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.
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 (citing
Murrary 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, in
Fiorenza 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 and
McKrell. 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
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
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
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
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
c. Foreign Law and Perceived Problems Regarding Conflicts of
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
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
An appropriate Order follows.
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.