The opinion of the court was delivered by: Sweet, District Judge.
Defendant Societe Des Hotel Meridien ("SHM") moves pursuant
to Federal Rule of Civil Procedure 12(b)(2) to dismiss the
complaint for lack of in personam jurisdiction. For the reasons
set forth below the motion is denied.
Darby filed this complaint on October 25, 1988. Oral argument
was heard on November 10, 1989 and on the request of parties
leave was granted to submit additional papers. This motion was
considered fully submitted as of December 15, 1989.
Plaintiff, Regina L. Darby ("Darby"), was the spouse of the
decedent and the Administratrix of his Estate.
Decedent, Peter Shelley Zeiler ("Zeiler"), was forty-three
years of age and the late husband of Darby. He drowned off the
coast of Rio de Janeiro on December 31, 1986.
Societe Des Hotels Meridien ("SHM") is the owner of certain
hotels outside of the United States and the corporate parent of
Meridien Gestion S.A. ("SMG").
Meridien Hotels, Inc. ("MHI") is a New York corporation with
its principal offices located at 888 Seventh Avenue, New York,
N Y MHI manages hotels within the United States.
Meridien Gestion S.A. ("SMG") is a French corporation, a
wholly-owned subsidiary of SHM, and the principal shareholder
of Meridien Hotels, Inc. ("MHI").
This is an action based upon diversity of citizenship for
conscious pain and suffering and wrongful death arising out of
the Zeiler drowning in the surf at Rio de Janeiro, Brazil on or
about December 31, 1986. Assuming the allegations in Darby's
complaint as true for purposes of this motion, Zeiler was a
registered guest at a hotel referred to in the caption as
"Meridien Copacabana" ("Copacabana"). The allegations set forth
that the Copacabana is bordered by treacherous ocean waters and
that the coastline is particularly dangerous after extended
periods of rain. Darby maintains that the waters were so
dangerous and the undertow so strong that the lifeguard, rather
than enter the water, would summon helicopters whose pilots
used a net to retrieve victims who were drowning. According to
Darby, the conspicuous absence of warning signs, safety devices
and/or undertow monitoring devices resulted in the needless
deaths of several individuals, prior to and including Zeiler.
In November of 1986, Zeiler and Darby, after seeing ads and
brochures for the Copacabana, made a reservation through a New
York travel agent. All of the brochures and advertisements
indicated the Copacabana was a Meridien Hotel without any
reference to separate ownership or responsibility.
SHM is not authorized to do business in the State of New
York. SHM has no agent designated to accept service of process
in New York or in the United States. SHM maintains no offices
in New York, nor does it maintain any employees, telephone
listing or mailing address in New York. SHM has no assets in
New York or anywhere in the United States. SHM maintains no
bank accounts in New York. SHM solicits no business in New
York, nor does SHM employ any agents for the solicitation of
business in New York. SHM did not own, control, manage, or
maintain the Copacabana.
When Darby and Zeiler made their reservations at the
Copacabana through a New York travel agent, MHI was, in
addition to its own management of hotels within the United
States, operating a toll-free telephone reservations system in
the United States for the benefit of owners of Meridien-managed
hotels in the United States and elsewhere, including the owner
of the Copacabana, a company known as Sisal-Rio Hotels Turismo
("Sisal"). Sisal was and still is owned and operated
independently and is not affiliated with any Meridien
organization entity. At the time of the accident, Meridien do
Brasil Turismo, Ltda. ("MdB") a Brazilian subsidiary of SHM,
managed the hotel pursuant to a 1976 contract entered into in
Brazil between Sisal and SHM. In accordance with Article XV of
that contract the hotel was to be operated under the name
"Meridien Copacabana" and the parties acknowledged that the
name "Meridien" was the exclusive property of SHM.
Under the same contract Sisal was granted the right to
participate in the computerized international reservations
system available to hotels managed by SHM and its affiliates.
Pursuant to Article IX, Section 2, SHM became obligated to
provide reservation services for the benefit of the ...