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DARBY v. COMPAGNIE NAT. AIR FRANCE

April 13, 1990

REGINA L. DARBY, AS THE ADMINISTRATRIX C.T.A. OF THE GOODS, CHATTELS AND CREDITS OF PETER SHELLY ZELLER AND REGINA L. DARBY, INDIVIDUALLY, PLAINTIFFS,
v.
COMPAGNIE NATIONAL AIR FRANCE D/B/A AIR FRANCE, A CORPORATION OF FRANCE, SOCIETE DES HOTELS MERIDIEN, D/B/A MERIDIEN HOTELS, INC., AND MERIDIEN COPACABANA, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

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.

Prior Proceedings

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.

Parties

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").

Facts

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 ...


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