Kryzanowski et al v. Wyndham Hotels and Resorts, LLC et al, No. 3:2013cv01077 - Document 27 (S.D. Cal. 2014)
Court Description: ORDER denying 20 Defendants' Motion to Dismiss for Forum Non Conveniens. Signed by Judge M. James Lorenz on 3/6/2014. (sjt)
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Kryzanowski et al v. Wyndham Hotels and Resorts, LLC et al Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 EDWARD E. KRYZANOWSKI, et al., ) Case No. 13-cv-1077-L(MDD) ) Plaintiffs, ) ORDER DENYING DEFENDANTS’ ) MOTION TO DISMISS FOR FORUM v. ) NON CONVENIENS [DOC. 20.] ) WYNDHAM HOTELS AND RESORTS, ) LLC, et al., ) ) Defendants. ) ) Pending before the Court is Defendants’ motion to dismiss for forum non conveniens. 18 (MTD [Doc. 20-1].) The motion is fully briefed. (Opp’n [Doc. 23]; Reply [Doc. 24].) The 19 Court found this motion suitable for determination on the papers submitted and without oral 20 argument in accordance with Civil Local Rule 7.1(d.1). (Order re: Oral Argument [Doc. 25].) 21 For the following reasons, the Court DENIES Defendants’ motion. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 13cv1077 Dockets.Justia.com 1 I. BACKGROUND 2 According to the Second Amended Complaint1, Plaintiff Roxane Amundson 3 (“Amundson”), a Canadian citizen, traveled to the city of Cabo San Lucas in the State of Baja 4 California Sur, Mexico with her cousin and decedent Ronda Cross (“Cross”). (SAC ¶¶ 4, 6.) 5 On March 3, 2012, Amundson booked a scuba diving excursion with Conquest Divers of 6 Cabo San Lucas (“Conquest Divers”). (SAC ¶ 10.) Amundson alleges that the air tanks 7 provided to Conquest Divers for the excursion were filed by Sunshine Dive & Charter 8 (“Sunshine”). Sunshine was a tenant of the Wyndham Cabo San Lucas Resort (“Wyndham 9 Resort”). (Id. ¶ 8.) Amundson claims that Wyndham Resort “supervised, controlled, advertised, 10 endorsed, recommended, employed and contracted with Sunshine to provide said excursions.” 11 (Id.) 12 Upon arrival to the dive site aboard a Conquest Divers vessel, Amundson and Cross 13 began their scuba dive. (SAC ¶ 11.) Amundson claims that “the air tanks provided . . . were 14 filled with a toxic gas, or other hazardous substance” and as a result, “the decedent died and 15 plaintiff Amundson suffered personal injuries and severe emotional distress.” (Id.) Based on 16 the foregoing, the Second Amended Complaint includes causes of action for negligence and 17 strict products liability against Wyndham Hotels and Resorts and AMX Baja Holdings S de R L 18 de CV(“Defendants”). (SAC ¶¶ 12-17, 18- 25.) 19 Defendants now move to dismiss the matter for forum non conveniens. Defendants argue 20 that the case should be dismissed because “1) [t]he State of Baja California Sur, Mexico, 21 provides an alternative forum in which this action should be tried; 2) Mexican law provides 22 adequate alternative forum to hear Plaintiff Amundson’s claims; 3) [t]he private interest factors 23 associated with this dispute favor a dismissal for forum non conveniens; and 4) [t]he private [sic] 24 interest factors associated with this dispute favor a dismissal for forum non conveniens.” 25 26 1 This case was initially filed in California state court with Edward Kryzanowski, Dora 27 Kryzanowski, and Roxane Amundson as named plaintiffs. (Original Complaint [Doc. 1-1] 2.) When the Second Amended Complaint was filed, only Roxane Amundson was named as a 28 plaintiff. (SAC 1.) 13cv1077 2 1 (MTD 2-3.) 2 3 II. LEGAL STANDARD 4 A court may decline to exercise jurisdiction in a case where litigation in a foreign forum 5 would be more convenient for the parties. Gulf Oil Corp. V. Gilbert, 330 U.S. 501, 504 (1947). 6 When considering a motion to dismiss under forum non conveniens, a court must examine: “(1) 7 whether an adequate alternative forum exists; and (2) whether the balance of private and public 8 interest factors favors dismissal.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 9 2001). A foreign forum is adequate when it provides the plaintiff with a sufficient remedy for 10 his wrong. Id. at 1143. “The defendant bears the burden of proving the existence of an 11 adequate alternative forum.” Cheng v. Boeing Co. 708 F.2d 1406, 1411 (9th Cir 1983). To make 12 its determination, a court may consider declarations outside the pleadings. U.S. Vestor, LLC v. 13 Biodata Info. Tech. AG, 290 F.Supp.2d 1057, 1062 n. 1 (N.D.Cal.2003) (citing AT & T v. 14 Compagnie Bruxelles Lambert, 94 F.3d 586, 589-591 (9th Cir.1996)). 15 “[T]he standard to be applied [to a motion for dismissal on the ground of forum non 16 conveniens] is whether . . . defendants have made a clear showing of facts which . . . establish 17 such oppression and vexation of a defendant as to be out of proportion to plaintiff’s 18 convenience, which may be shown to be slight or nonexistent . . . .” Cheng v. Boeing Co. 708 19 F.2d 1406, 1410 (9th Cir 1983). In other words, forum non conveniens is “an exceptional tool to 20 be employed sparingly.” Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000). 21 22 III. DISCUSSION 23 Defendants argue that Amundson’s suit should be dismissed because Mexico provides a 24 more convenient forum. (MTD ¶¶ 5-14.) Amundson opposes dismissal, contending that her 25 selection of forum was not “abusive” and Mexico is not an adequate alternative forum for her 26 claims. (Opp’n ¶¶ 4-18.) For the following reasons, the Court agrees with Amundson. 27 As an initial matter, it appears that Amundson does not refute Defendants’ claim that the 28 case at bar could have been brought in the state of Baja California Sur, Mexico. (MTD 5-6; See 13cv1077 3 1 generally Opp’n.) Therefore, for purposes of this motion, the Court finds that the courts of Baja 2 California Sur provide an alternative forum for this case. The Court must next determine if this 3 alternative forum is “adequate.” 4 In support of their claim that Mexican courts provide an adequate forum for Amundson’s 5 claims, Defendants argue that “Mexican law provides remedies quite comparable to those 6 available in California.” (MTD 7.) Defendants make a number of arguments in support of this 7 claim, all buttressed by a declaration of their expert on Mexican law, Manuel Garcia Pimentel 8 Caraza2. First, they suggest that “Plaintiff Amundson’s remedy for her tort claim of negligence 9 would be available by bringing claims for breach of non-contractual obligations (i.e., a tort at 10 common law) for any negligence on part of the Defendants that might have caused Plaintiff 11 Amundsun’s [sic] damages.” (Id.; Decl. Caraza ¶ 31.) Second, Defendants explain that if 12 Amundson prevails in her breach of non-contractual obligations claims in Mexico, she would be 13 entitled to indemnification according to Mexican Federal Civil Code 1915 (“MFCC”). (MTD 7; 14 Decl. Caraza ¶ 54.) Third, Defendants contend that even though Amundson’s recovery is 15 limited by MFCC 1915, it is still adequate, as courts have found that even when “foreign law 16 imposes a severe limit on damages recoverable by a plaintiff, rendering the claim uneconomic to 17 pursue, [this] does not necessarily render the remedy inadequate.” (MTD 7.) Defendants never 18 address whether Mexican law provides an adequate forum for Amundson’s strict products 19 liability claims. (See generally MTD.) 20 Amundson does not directly address these points, but instead presents an argument, 21 supported by her expert on Mexican law, Luis Miguel Krasovsky3, that trumps Defendants’ 22 23 24 2 Amundson does not object to Mr. Caraza’s qualifications as an expert, so for purposes of this motion, the Court accepts Mr. Caraza’s claims with respect to Mexican law. 3 Defendants do not object to Mr. Krasovsky’s qualifications as an expert, so for 25 purposes of this motion, the Court accepts Mr. Krasovsky’s claims with respect to Mexican law. Defendants have, however, requested that the Court disregard Mr. Krasovsky’s declaration 26 because it is irrelevant and lacks foundation. (Defs.’ Objections [Doc. 24-1] 3.) Defendants contend that Mr. Krasovsky’s declaration was prepared in support of an opposition in another 27 related case, and does not address the parties and laws at issue in this matter. However, after a review of the declaration, the Court finds that it is both relevant and does not lack foundation. It 28 does appear that the declaration was drafted in connection with another case given the caption on 13cv1077 4 1 position. According to Amundson, “Mexico has a very limited system of damages and liability 2 for damages can only be imposed on the wrongdoer itself.” (Opp’n 8.) This appears to be 3 supported by Krasovsky’s declaration. (Decl. Krasovsky ¶ 5.) Amundson argues that because 4 Defendants’ “liability is vicarious, which lacks the cause and effect relationship necessary to 5 impose liability” required under Mexican law, Amundson “has no meaningful remedy at all.” 6 (Opp’n 7, 8.) This is also supported by Krasovsky’s declaration, as he opines that none of the 7 Defendants would be subject to “any liability derived from the death of an individual.” (Decl. 8 Krasovsky 6.) So, according to Amundson, the Mexican forum is inadequate because it does not 9 provide for liability for Defendants, while the present forum does. 10 Instead of addressing Amundson’s argument regarding liability, Defendants use their 11 reply to rehash the arguments they made in favor of Mexican courts providing an “adequate” 12 alternative forum. (Reply 4, 5.) Defendants’ failure to address this claim concedes its validity 13 for purposes of this motion. Thus, Amundson has established that Mexico does not provide an 14 adequate forum for her claims because Mexican law affords her no remedy at all against the 15 Defendants. See Piper, 454 U.S. at 254; see also Lueck, 236 F.3d at 1143. 16 In light of the foregoing, the Court finds that Defendants have failed to meet their burden 17 to provide “a clear showing of facts which . . . establish such oppression and vexation of 18 [Defendants] defendant as to be out of proportion to [Amundson’s] convenience.”4 Cheng, 708 19 at 1410. Therefore, Defendants’ motion to dismiss is DENIED. Because Defendants fail to 20 establish that Mexico provides an adequate alternative forum, the Court need not address the 21 parties’ arguments with respect to the private and public interest factors. See Lueck, 236 F.3d at 22 23 the bottom of the paper. This alone, does not make the document inadmissable. Indeed, 24 Defendants concede that the document was prepared for a case involving “the same incident.” (Id. 3.) Moreover, Defendants’ unsupported argument that the document “does not address the 25 parties and laws at issue in this matter” is belied by even a cursory reading of the declaration. Therefore, the Court DENIES Defendants’ objection. The Court does not reach Defendants’ 26 other objections, as the material objected to is not relied on the Court’s analysis. 27 4 The Court also notes that nowhere in their motion to dismiss do Defendants address Amundson’s claims under a strict liability theory. So, even if the Court were inclined to dismiss 28 Amundson’s negligence claims, it could not dismiss her strict liability claims as requested. 13cv1077 5 1 1142. 2 3 IV. CONCLUSION AND ORDER 4 In light of the foregoing, the Court DENIES Defendants’ motion to dismiss for forum 5 non conveniens. 6 IT IS SO ORDERED. 7 8 DATED: March 6, 2014 9 10 M. James Lorenz United States District Court Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13cv1077 6
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