The opinion of the court was delivered by: Sweet, District Judge.
Defendant Compagnie National Air France ("Air France") has
moved pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., for
summary judgment dismissing the claims of Regina Darby
("Darby") in this wrongful death action. Defendant Sisal-Hotel
Turismo, S.A. ("Sisal") has moved pursuant to Rule 12(b)(2),
Fed.R.Civ.P., to dismiss the complaint for lack of in
personam jurisdiction. For the reasons set forth below, both
motions are granted.
Darby is the spouse of decedent Peter Shelley Zeiler ("Zeiler")
and the Administratrix of his estate.
Zeiler drowned off the coast of Mexico on December 31, 1986.
Air France is a French corporation whose stock is almost
entirely owned by the Republic of France. Air France in turn
owns 100% of the stock of Societe Des Hotels Meridien ("SHM"),
also a French corporation. SHM is the owner of certain hotels
outside of the United States and the corporate parent of
Meridian Gestion S.A. ("SMG"). SMG, a French Corporation, is a
wholly owned subsidiary of SHM.
SMG is the principal shareholder of Meridien Hotels, Inc.
("MHI"), a New York corporation with its principal offices in
New York City.
Sisal is a Brazilian corporation with its sole place of
business at Rua do Passeio 70, Rio de Janeiro, Brazil. Sisal is
the owner of the Meridien Copacabana Hotel (the "Hotel"),
located in Rio de Janeiro, Brazil.
Darby filed this complaint on October 25, 1988. SHM
subsequently filed a motion to dismiss for lack of in
personam jurisdiction. In an opinion of April 13, 1990 (the
"Opinion"), 735 F. Supp. 555, the court denied SHM's motion.
On May 25, 1990, Darby filed a motion for default judgment and
for the intervention of a magistrate to oversee discovery. An
opinion of September 21, 1990 denied Darby's motion, but
granted Darby leave to amend the complaint to (1) reflect the
MHI is an entity distinct from SHM and (2) name Sisal, instead
of the non-jural entity "Meridien Copacabana" as a defendant if
Sisal was "fairly apprised" of the suit, 132 F.R.D. 354.
In an amended complaint of October 10, 1990, Darby named Sisal
as a defendant. In the original complaint, Sisal was not named
as a defendant. Instead the complaint named "Meridien
Copacabana," a non-jural entity.
On January 7, and January 16, 1991, respectively, Sisal and Air
France filed the instant motions. Oral argument was heard on
April 4, 1991. The parties made additional submissions after
This is a diversity action seeking damages for conscious pain
and suffering and wrongful death arising out of the drowning of
Zeiler in the surf at Rio de Janeiro, Brazil on or about
December 31, 1986. Assuming the allegations as set forth in
Darby's complaint for the purposes of this motion, Zeiler was a
registered guest at the Hotel.
The complaint alleges that the Hotel 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 swimmers who
were drowning. According to Darby, the conspicuous absence of
warning signs, safety devices, and/or undertwo 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 Hotel, made a reservation through a New York
The Management Contract Between Sisal and SHM
Sisal is the owner of the Hotel. On January 30, 1976, Sisal
entered into a contract with SHM (the "Agreement"), whereby
SHM, through its Brazilian subsidiary, Meridien do Brasil
Turismo, Ltda. ("MdB") agreed to manage and operate the Hotel.
In December, 1986, SHM assigned its contract with Sisal to SMG.
Meridien S.A. ("MSA") has subsequently assumed the contractual
obligations of SMG. Air France, the corporate parent of SHM, is
not involved in the daily operations of the Hotel.
Pursuant to Article XV of the Agreement, 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 Agreement, 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 owner of the Hotel.
Section (2)(i) of Article IX of the Agreement states that:
SHM will supply or take the necessary measures so that the
affiliated companies supply, at the time of the hotel operation
and for the benefit of its customers, this enumeration not
being limitative, the following services and facilities:
(i) reservations — The recourse by the hotel to the central
reservation service SHM. The cost will be born [sic] by the
hotel operation prorated on its usage.
The reservations system is known as "Meridien Reservations
International." Reservations for rooms at hotels at
international locations (other than the United States, Canada
and the Bahamas) including the Hotel, were taken through a
toll-free 800 number answered in New York City by employees of
MHI. The part of the reservations system that is located in New
York is operated by MHI for the direct benefit of owners of
Meridien-managed hotels, including Sisal. By calling the
toll-free number, the caller is ...