Wilmot v. Marriott Hurghada Management, Inc.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3211
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GUY WILMOT,
Appellant

v.

MARRIOTT HURGHADA MANAGEMENT, INC.,
a Delaware corporation; MARRIOTT INTERNATIONAL,
INC., a Delaware corporation

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On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-15-cv-00618)
District Judge: Honorable Richard G. Andrews
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 7, 2017

Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges

(Filed: October 13, 2017)

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OPINION*
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SCIRICA, Circuit Judge.
 Guy A. E. Wilmot appeals the order of the United States District Court for the

District of Delaware dismissing his complaint for forum non conveniens. We will affirm.1

I.

This case stems from an alleged poolside injury that Guy Wilmot, a citizen and

resident of the United Kingdom, suffered during a vacation at the Marriott Resort in

Hurghada, Egypt. After the injury, Wilmot underwent surgery for a broken shoulder in

Egypt, and sought further treatment from doctors and physical therapists in the United

Kingdom. Those who witnessed the incident, assisted Wilmot afterward, and medically

treated his injuries all remain in either Egypt or the United Kingdom. Any medical

records generated from Wilmot’s care are in either Egypt or the United Kingdom as well.

Wilmot brought this action in the District of Delaware against Marriott Hurghada

Management, Inc., and its parent Marriott International, Inc., (collectively “Marriott”),

both Delaware corporations with principal places of business in Bethesda, Maryland.

In response, Marriott filed a motion to dismiss for forum non conveniens,

contending Egypt was a more appropriate forum for resolving this case. Marriott agreed

to accept service of process in Egypt and consent to the Egyptian courts’ jurisdiction.

Marriott also submitted an affidavit by Tarek Ahmed Roushdy Ezzo, Managing Partner

of the Egyptian law firm Ezzo Advocates, which attested Wilmot’s claim would be

cognizable in Egyptian courts. After Wilmot responded, Marriott’s reply also offered the

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have appellate
jurisdiction under 28 U.S.C. § 1291.
2
United Kingdom as an available and adequate alternative forum. Marriott agreed to

accept service of process in the United Kingdom and to waive any jurisdictional or

statute-of-limitations defenses to claims brought there. Wilmot sought and received leave

to file a sur-reply responding to the points raised in Marriott’s reply.

The District Court found little indication that Wilmot, a foreign plaintiff, chose the

District of Delaware based on convenience and consequently afforded that choice

“significantly less deference” than the presumption of convenience usually afforded to a

plaintiff’s forum choice. The District Court then determined Egypt and the United

Kingdom were adequate alternative fora available for resolving Wilmot’s claims. And

after weighing relevant public and private interests and concluding that trial in the

District of Delaware would unduly inconvenience the parties compared with resolution in

Egypt or the United Kingdom, the District Court granted Marriott’s motion to dismiss for

forum non conveniens.

Wilmot appealed.

II.

The doctrine of forum non conveniens places within a district court’s discretion the

option of “resist[ing] imposition upon its jurisdiction,” Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 507 (1947), when trial would “establish . . . oppressiveness and vexation to a

defendant . . . out of all proportion to plaintiff’s convenience.” Koster v. (Am.)

Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947); Kisano Trade & Invest Ltd. v.

Lemster, 737 F.3d 869, 873 (3d Cir. 2013); Windt v. Qwest Commc’ns Int’l, Inc., 529

F.3d 183, 189 (3d Cir. 2008). We have outlined four factors to guide district courts’

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exercise of discretion: “(1) the amount of deference to be afforded to [plaintiff’s] choice

of forum; (2) the availability of an adequate alternative forum where defendants are

amenable to process and [plaintiff’s] claims are cognizable; (3) relevant ‘private interest’

factors affecting the convenience of the litigants; and (4) relevant ‘public interest’ factors

affecting the convenience of the forum.” Kisano Trade & Invest, 737 F.3d at 873

(footnote omitted).

When reviewing a district court’s decision on a forum non conveniens motion,

“[o]ur scope of review . . . is limited.” Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d

628, 631 (3d Cir. 1989). In evaluating such motions, “the district court is accorded

substantial flexibility . . . , and ‘[e]ach case turns on its facts.’” Van Cauwenberghe v.

Biard, 486 U.S. 517, 529 (1988) (alteration in original) (citation omitted) (quoting

Williams v. Green Bay & W. R.R. Co., 326 U.S. 549, 557 (1946)). “The forum non

conveniens determination is committed to the sound discretion of the trial court.” Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Such a determination “may be reversed

only when there has been a clear abuse of discretion; where the court has considered all

relevant public and private interest factors, and where its balancing of these factors is

reasonable, its decision deserves substantial deference.” Id.

III.

Wilmot asserts the District Court abused its discretion in three respects. He

contends the District Court abused its discretion by affording his choice of forum less

deference than the strong presumption of convenience a plaintiff’s forum choice

generally enjoys; by determining Egypt and the United Kingdom are both adequate fora

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for resolving this case; and by concluding the private and public interests in this case

warrant dismissal.

A.

We first consider whether the District Court abused its discretion by affording

Wilmot’s forum choice “significantly less deference” than is ordinarily afforded a

plaintiff’s choice of forum. Ordinarily, a domestic plaintiff’s choice of forum enjoys “a

strong presumption of convenience,” Windt, 529 F.3d at 190, but for foreign plaintiffs

“the choice of a United States forum ‘deserves less deference,’” Kisano Trade & Invest,

737 F.3d at 874 (quoting Piper Aircraft, 454 U.S. at 256). This approach stems from the

inquiry’s emphasis on convenience and a recognition that a foreign plaintiff’s choice to

bring a case in the United States is less likely to be based on convenience. See Lony, 886

F.2d at 634 (explaining “the reason for giving a foreign plaintiff’s choice less deference

is not xenophobia, but merely a reluctance to assume that the choice is a convenient

one”). Indeed, “the touchstone inquiry regarding the level of deference owed a plaintiff’s

choice of forum is not the ‘citizenship or residence of the parties,’ but the convenience of

the forum.” Kisano Trade & Invest, 737 F.3d at 875 (quoting Pollux Holding Ltd. v.

Chase Manhattan Bank, 329 F.3d 64, 73 (2d Cir. 2003)).

Here, the District Court accorded Wilmot’s choice of forum “significantly less

deference,” because his choice lacked evidence of being based on convenience. Wilmot

submits the District Court abused its discretion because it “utilized the wrong legal

standard and accorded Plaintiff’s forum choice with no deference whatsoever.” Appellant

Br. at 20.

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 We disagree. The District Court reasonably observed “[t]he alleged injury

occurred in Egypt at an Egyptian hotel, in the presence of witnesses from the United

Kingdom and Egypt.” App. at 6a. Furthermore, Wilmot’s medical treatment took place in

Egypt and the United Kingdom. Indeed, the lawsuit’s only connection to the District of

Delaware is that it is the defendants’ place of incorporation. The District Court acted

within its sound discretion when it determined Wilmot’s choice of forum found little

basis in convenience and when it consequently afforded that choice less deference than

the ordinary presumption of convenience.

B.

A successful forum non conveniens motion also requires the availability of an

adequate alternative forum, Piper Aircraft, 454 U.S. at 254, and Wilmot contends there is

no adequate alternative available. An alternative forum is available if all defendants are

amenable to process there. Id. at 254 n.22. An alternative forum is generally adequate if

the plaintiff’s claim is cognizable in the forum’s courts. Id. If the claim is cognizable in

the alternative forum, that forum will only be inadequate in the “rare circumstances,” id.,

in which “the remedy provided . . . is so clearly inadequate or unsatisfactory that it is no

remedy at all,” id. at 254.

The District Court concluded two adequate alternative fora are available: the

United Kingdom and Egypt. Marriott has consented to jurisdiction and service of process

in both countries, and has agreed to waive any jurisdictional or statute-of-limitations

defenses as well. Both fora are available.

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 In terms of adequacy, Wilmot offers no authority refuting the District Court’s

determination that this tort action would be cognizable in the United Kingdom’s courts.

Nor does he suggest the United Kingdom’s remedy for a claim like this is “so clearly

inadequate or unsatisfactory that it is no remedy at all,” id. at 254. The District Court’s

determination that the United Kingdom is an adequate alternative forum is well within its

sound discretion.2

With regard to Egypt, Wilmot asserts the District Court erroneously relied on the

affidavit by Mr. Ezzo, the Egyptian attorney, to determine Wilmot’s claim would be

cognizable in Egyptian courts. But Wilmot offers no evidence to rebut that conclusion.

He cites no authority indicating Egyptian courts would either not hear his claim or

provide a grossly inadequate remedy. Wilmot offers no evidence or reason to question the

District Court’s conclusion that Egyptian courts would hear his negligence claim against

Marriott.

Wilmot also contends terrorism and corruption render Egypt’s courts inadequate.

In support he cites a collection of reports, news articles, and diplomatic advisories that

2
Wilmot asserts the District Court abused its discretion by considering the United
Kingdom as an adequate alternative forum, Appellant’s Br. at 39, contending Marriott
violated the District of Delaware’s Local Civil Rule 7 by raising the issue for the first
time in its reply brief. See D. Del. R. 7.1.3(c)(2) (“The party filing the opening brief shall
not reserve material for the reply brief which should have been included in a full and fair
opening brief.”). Wilmot was offered a full and fair opportunity to respond to the United
Kingdom as an alternative in his sur-reply and to invoke the District of Delaware’s local
rules before the District Court. Since the District Court considered the adequacy of
United Kingdom as a forum notwithstanding its own local rule, we decline to take up the
rule as a basis for overturning the District Court’s conclusion. See United States v.
Kingston, 922 F.2d 1234, 1240 (6th Cir. 1990) (“We do not ordinarily enforce local rules
of practice when the district court . . . does not enforce them.”).
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highlight recent terrorist activity in Egypt and instability within the country’s

government. Despite the ongoing situation those articles and advisories describe, Wilmot

does not offer any evidence that he, in particular, would face specific danger by resolving

his case there. See Iragorri v. Int’l Elevator, Inc., 203 F.3d 8, 13 (1st Cir. 2000)

(endorsing District Court’s determination Colombia provided adequate alternative forum

despite State Department warnings against travel there because “no particularized

evidence [showed] that travel to Colombia would imperil [plaintiffs]”). And the instances

of corruption that Wilmot cites do not show Egypt’s court system as a whole is corrupt,

much less that it is “so corrupt that it can’t serve as an adequate forum.” Stroitelstvo

Bulgaria Ltd. v. Bulgarian-Am. Enter. Fund, 589 F.3d 417, 421 (7th Cir. 2009). In

determining Egypt could serve as an adequate alternative forum, the District Court acted

within its sound discretion.

Finally, Wilmot suggests the District Court abused its discretion by failing to

condition dismissal on Marriott’s waiver of jurisdictional and statute-of-limitations

defenses in an alternative forum. Conditional dismissals are common in cases dismissed

on forum non conveniens grounds. See, e.g., Dahl v. United Techs. Corp., 632 F.2d 1027,

1029 (3d Cir. 1980). For its part, Marriott appears to view such conditions as implicit in

the District Court’s order, asserting Wilmot could seek relief before the District Court if

Marriott failed to fulfill its aforementioned assurances. Appellees’ Br. at 16–17. The

parties’ views appear to overlap in considering Marriott as bound by its commitment to

“waive any jurisdictional or other legal obstructions that may impede [plaintiff’s] case” in

an alternative forum, App. at 7a (citations omitted), and the District Court’s opinion

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explicitly outlines those commitments. Accordingly, we interpret the District Court’s

dismissal as conditional on Marriott’s acceptance service of process in an alternative

forum and Marriott abiding by its commitment not to raise a jurisdictional or statute-of-

limitations defense there.

C.

We turn next to the District Court’s weighing of the relevant public and private

interests to determine whether trial would cause “oppressiveness and vexation to a

defendant . . . out of all proportion to plaintiff's convenience.” Koster, 330 U.S. at 524.

“Private interests to consider include the ease of access to sources of proof; ability to

compel witness attendance if necessary; means to view relevant premises and objects;

and any other potential obstacle impeding an otherwise easy, cost-effective, and

expeditious trial.” Kisano Trade & Invest, 737 F.3d at 873 (citing Delta Air Lines, Inc. v.

Chimet, S.p.A., 619 F.3d 288, 296 (3d Cir. 2010)). “Public interests include

administrative difficulties arising from increasingly overburdened courts; local interests

in having the case tried at home; desire to have the forum match the law that is to govern

the case to avoid conflict of laws problems or difficulty in the application of foreign law;

and avoiding unfairly burdening citizens in an unrelated forum with jury duty.” Id.

The District Court did not abuse its discretion by concluding the relevant interests

weigh against resolving this claim in the District of Delaware. Beginning with the private

interests, nearly all witnesses, evidence, and other sources of proof are outside the United

States. The case involves an alleged accident in Egypt, suffered by a British citizen and

resident whose injuries were treated by Egyptian and British doctors. The only offered

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witnesses and sources of proof in the United States are potentially relevant records and

personnel in Delaware or Maryland. Between witnesses, additional sources of proof, and

other practicalities, the District Court acted within its sound discretion by concluding

these interests weigh against trial in Delaware. The District Court also reasonably

concluded the public interests weighed against the District of Delaware. The site of the

hotel and accident is Egypt, and Wilmot is a citizen and resident of the United Kingdom.

Other than being Marriott’s place of incorporation, the District of Delaware has little

interest in resolving this case compared to Egypt or the United Kingdom. The District

Court acted within its sound discretion in concluding those interests weigh against the

District of Delaware.

IV.

The District Court reasonably considered of the proper deference to Wilmot’s

forum choice, the adequacy of Egypt and the United Kingdom as alternative fora, and the

relevant private and public interests. Given the conditions to which Marriott agreed, the

District Court decided dismissal was warranted on forum non conveniens grounds. That

decision was within the District Court’s sound discretion. We will affirm the District

Court’s judgment dismissing for forum non conveniens.

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