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Zohar Niv v. Hilton Hotels Corp.

November 10, 2008

ZOHAR NIV, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DECEDENT TZILA NIV AND HIS MINOR CHILDREN DECEDENTS GILAD NIV AND LIOR NIV, ET AL., PLAINTIFFS,
v.
HILTON HOTELS CORPORATION AND HILTON INTERNATIONAL CO., DEFENDANTS.



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

OPINION AND ORDER

This action arises out of the tragic events that took place on October 7, 2004 at the Hilton Taba Hotel in Taba City, South Sinai, Egypt when a terrorist drove a vehicle with explosives into the lobby of the hotel, causing an explosion and the hotel's collapse. Plaintiffs are 157 individuals who were guests, or whose decedents were guests, of the Hilton Taba Hotel on October 7, 2004. Defendants Hilton International Co. and Hilton Hotels Corporation (collectively "Hilton" or "defendants"), now move this Court to dismiss the case pursuant to the doctrine of forum non conveniens. For the following reasons, defendants' motion is GRANTED, subject to the conditions set forth below.

BACKGROUND

The Hilton Taba Hotel is located on the Sinai Peninsula in Egypt, near the Israeli border. (Compl. ¶ 2.) Plaintiffs contend that the Hilton Taba Hotel is "a long-favored holiday destination" for Israelis and that the hotel markets to Israeli tourists. (Id. ¶¶ 18-20.) During the fall of 2004, and in particular around the time of the Jewish holidays of Rosh Hashana, Yom Kippur, and Sukkot, Israeli intelligence issued public warnings of possible terrorist attacks in the Sinai. (Id. ¶¶ 22-25.) Plaintiffs aver that despite the fact that an attack was "both likely and foreseeable" during the fall of 2004 (id. ¶ 25), Hilton Taba's security was below the standards required in the Sinai region during that time period. (See id. ¶¶ 27-29.)

Plaintiffs assert causes of action for negligence and wrongful death, alleging that Hilton failed to exercise reasonable care to protect guests where criminal activity was reasonably foreseeable, and that Hilton's actions caused plaintiffs to suffer bodily injury and severe emotional distress. (Id. ¶¶ 40-50.) Plaintiffs seek compensatory and punitive damages (id. ¶¶ 51, 55), and assert that Hilton Hotels Corporation is fully liable for the acts or omissions of Hilton International Co. pursuant to a theory of successor liability. (Id. ¶¶ 57-59.)

Defendants deny liability and ask the Court to dismiss the case based upon the theory of forum non conveniens. Specifically, defendants contend that because none of the plaintiffs are United States citizens or residents, and because the events in question, the witnesses, and the relevant documents are located in Egypt, the dispute should be heard in Egypt. (See Defs.' Mot. 24.) Plaintiffs oppose this motion, arguing that Egypt is not an adequate forum to hear this dispute because of the emotional burden plaintiffs would face if forced to return to Egypt, and that they would be unable to receive a fair trial in Egypt in light of widespread anti-Semitism and anti-Israeli sentiments. (See Pls.' Opp'n 1-2.)

DISCUSSION

I. Forum Non Conveniens Dismissal Standard

The doctrine of forum non conveniens is based on the principle that "'a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.'" Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984, 634 F. Supp. 842, 845 (S.D.N.Y. 1986) (Keenan, J.) ("The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general venue statute."), aff'd, 809 F.2d 195 (2d Cir. 1987). Notwithstanding the propriety of the action under the venue statute, "dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). The Supreme Court has declined to fashion the exact circumstances that would "'justify or require either grant or denial of remedy.'" Id. (quoting Gilbert, 330 U.S. at 508). Consequently, a district court's inquiry is highly fact-specific. Id. ("'Each case turns on its facts.'"(quoting Williams v. Green Bay & W.R. Co., 326 U.S. 549, 557 (1946))); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivanos, 712 F. Supp. 383, 392-93 (S.D.N.Y. 1989) (Leisure, J.) ("The Supreme Court has emphasized the flexibility with which the District Court must approach a forum non conveniens determination, and consequently there are no specific circumstances which would require either a grant or denial of the remedy.").

In exercising its discretion, the Court applies the three-step analysis outlined by the Second Circuit's decision in Iragorri v. United Technologies Corporation, 274 F.3d 65, 73-74 (2d Cir. 2001)(en banc):

At step one, a court determines the degree of deference properly accorded the plaintiff's choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute. Finally, at step three, a court balances the private and public interests implicated in the choice of forum.

Norex, 416 F.3d at 153 (internal citations omitted).*fn1

II. Application of Forum Non Conveniens Principles to the Parties' Arguments

A. Level of Deference to Plaintiffs' Choice of Forum

In Iragorri, the Second Circuit sought to clarify the level of deference a district court should accord to a United States plaintiff's choice of forum when assessing a forum non conveniens motion. 274 F.3d at 68. In so doing, the Second Circuit resolved that the level of deference to any plaintiff's choice of forum moves on a "sliding scale" depending on several considerations. Id. at 71. The Iragorri Court explained that a plaintiff's choice of forum should receive greater deference where it appears that there is a bona fide connection between the plaintiff or the lawsuit and the forum, or that the plaintiff was sincerely concerned with convenience in choosing that forum, and less deference is warranted when it appears that the choice of forum was motivated by forum-shopping. Id. at 72. To assist the district courts with making this determination, the Second Circuit highlighted some factors a district court should consider. Specifically, factors that support a plaintiff's choice of forum include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of witnesses or evidence in the chosen forum, defendant's amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense. Id. Alternatively, factors that would decrease the level of deference include attempts to win a tactical advantage resulting from local laws, generosity of juries in the United States or in the forum district, the litigant's popularity, or their adversaries' unpopularity, in the district, or the inconvenience and expense of defending the suit in that jurisdiction. Id.

After considering all the factors outlined by the Second Circuit, this Court concludes that plaintiffs' choice of forum in this case is not entitled to substantial deference. Notably, none of the 157 plaintiffs are United States citizens or residents and none of the significant events occurred in this jurisdiction. See, e.g., Wilson v. ImageSat Int'l N.V., No. 07 Civ. 6176, 2008 U.S. Dist. LEXIS 57897, at *12-*13 (S.D.N.Y. July 22, 2008) (holding that plaintiffs' choice of an American forum is "entitled to some, but minimal, deference" where only half of plaintiffs were connected to the United States and the relevant events took place abroad); Aguas Lenders Recovery Group, LLC v. Suez S.A. Sociedad General De Aguas De Barcelona S.A., No. 06 Civ. 7873, 2008 U.S. Dist. LEXIS 16283, at *18 (S.D.N.Y. Mar. 3, 2008) (according little deference to plaintiff's decision because "the operative facts upon which the litigation is brought bear little material connection to the chosen forum." (citing Nieves v. Am. Airlines, 700 F. Supp. 769, 772 (S.D.N.Y. 1988) (Leisure, J.))). There is no indication that plaintiffs, who are Israeli and Russian citizens and residents, have any connection to this district or to the United States that would increase the deference accorded to plaintiffs' choice of forum. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000) ("While any plaintiff's selection of a forum is entitled to deference, that deference increases as the plaintiff's ties to the forum increase.").

The Court does not rely exclusively on plaintiffs' citizenship in determining that less deference should be accorded to plaintiffs' choice of forum. See Norex, 274 F.3d at 157 (reversing forum non conveniens dismissal where, instead of applying the sliding scale of deference outlined in Iragorri, the district court relied "almost exclusively on the presumption that a foreign plaintiff's choice of a non-home forum is inconvenient" in determining that plaintiff's choice of forum was entitled to little deference). Rather, after considering the relevant factors identified in Iragorri, the Court finds additional support for affording plaintiffs' forum selection less deference in the fact that the evidence and witnesses are not located in the United States, there is some indication that plaintiffs engaged in forum shopping, and defendants are amenable to service in both Egypt and Israel, not just in the Southern District of New York.

The Second Circuit indicated that the availability of witnesses or evidence in the chosen forum would weigh against dismissal. Iragorri, 274 F.3d at 72. Here, plaintiffs have not specified any pertinent witnesses or evidence located in the United States. Much of the relevant information would likely be found in Egypt or Israel where the bombing occurred and where the medical treatment was administered. (See Armia Aff. ¶¶ 20-21; Niv Decl. Exs. A,B,C.) In order for plaintiffs to pursue their cause of action in this forum, all 157 plaintiffs would need to travel to testify during the trial, they would need to collect and transport medical records, and they would need to translate much of the evidence to English. Further, it is questionable whether some of the relevant evidence would be accessible in this jurisdiction. (See Armia Aff. ¶ 8-11; El Ehwany Aff. ¶¶ 19-20; Afifi Decl. ¶ 6.) While the Court does not believe that all of the 144 documents cited in paragraph seven of Magdy Armia Samuel's affidavit would be necessary, or even relevant, to the current dispute, defendants have identified evidence that is likely to be important in this dispute, but which is unlikely to be available if the case proceeds in the Southern District of New York. (See Armia Aff. ¶ 9.) The Court similarly concludes that, while defendants might not actually need the testimony of some of the witnesses they have listed, Hilton has identified witnesses, such as the officials in the Egyptian Tourist Police Department (id. ¶¶ 14-15), who are unlikely to be able to testify in this forum, but whose testimony could be important to this case. At a minimum, the fact that likely evidence and witnesses are not located or easily available in this forum undermines any argument that this Court was chosen because of convenience to the parties.

In addition to the improbability that this forum was selected for its convenience, there is some indication that plaintiffs' choice of forum was motivated by forum shopping. The Hilton defendants assert that comments made by Moishe Zingel, plaintiffs' Israeli counsel, in a January 10, 2006 Globes article are indicative of plaintiffs' forum shopping. (Defs.' Reply 4-5.) In that article, Zingel purportedly told the reporter that plaintiffs filed their claim in New York because of "the awareness of the Americans to terror activities since the Twin Tower disaster, and the fact that the proceedings there will be conducted before a jury, which usually awards higher amounts of compensation, including penalty compensation." (Defs.' Reply Aff. Ex. AA.) While this statement is not dispositive of the deference this Court should give to plaintiffs' choice of forum, it does indicate that the generosity of juries in this district was a consideration for plaintiffs in deciding to bring suit here. Such consideration is indicative of forum shopping. See Iragorri, 274 F.3d at 72 (citing "the habitual generosity of juries in the United States or in the forum district" as a factor indicative of forum-shopping).*fn2

In opposing Hilton's motion to dismiss, plaintiffs contend that their choice of forum is entitled to substantial deference because they had legitimate reasons for bringing suit in the United States, including that (1) defendants are domiciled here, (2) defendants are both registered to do business in New York and derive significant revenues in New York and around the United States, (3) Egypt is not an option for the Israeli and Jewish plaintiffs, (4) the Russian plaintiffs have no connection to Israel, and (5) the Israeli plaintiffs have no connection to Russia. (Pls.' Opp'n 6.)*fn3

The Court recognizes that choosing to bring suit in a jurisdiction where defendants are established and amenable to suit is generally not indicative of forum shopping. Iragorri, 274 F.3d at 73. This fact by itself, however, does not justify according substantial deference to plaintiffs' choice of forum, where plaintiffs have no other ties to this jurisdiction and brought suit based on events with no connection to this forum. See Gilstrap v. Radianz Ltd., 443 F. Supp. 2d 474, 480 (S.D.N.Y. 2006) ("[E]ven if New York were considered the 'home forum' of some of the defendants, 'a plaintiff's choice to initiate suit in the defendant's home forum . . . only merits heightened deference to the extent that the plaintiff and the case possess bona fide connections to, and convenience factors favor, that forum.") (internal citations omitted), aff'd, 2007 U.S. App. LEXIS 12308 (2d Cir. May 25, 2007). As the Second Circuit has explained, a plaintiff's choice of defendant's home forum is a much less reliable proxy for convenience than if a plaintiff chooses his own home forum. Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 74 (2d Cir. 2003). "Bearing in mind that litigants rarely are concerned with promoting their adversary's convenience at their own expense, a plaintiff's choice of the defendant's home forum over other fora where defendant is amenable to suit and to which the plaintiff and the circumstances of the case are much more closely connected suggests the possibility that plaintiff's choice was made for reasons of trial strategy." Id. Thus, the Second Circuit in Pollux concluded that plaintiffs' choice to bring suit in defendant's home forum, notwithstanding the fact that plaintiff and the case had only a faint connection to the United States, is not entitled to the same substantial deference afforded to plaintiffs' choosing their home forum. Id. The same conclusion is appropriate here, where plaintiffs and this suit have no connection to this forum.

In further opposition of Hilton's assertion that plaintiffs' choice of forum deserves little deference, plaintiffs, relying on Bigio v. Coca-Cola Co, 448 F.3d 176 (2d Cir. 2006), contend that Egypt is not an available forum for the Israeli or Jewish plaintiffs, and therefore, it was reasonable for plaintiffs to bring suit in the United States. (Pls.' Opp'n 8.) The Second Circuit in Bigio held that "the district court appears to have overlooked the legitimate and substantial reasons for plaintiffs choosing to bring this suit in defendants' own country, the United States, rather than in Egypt, after plaintiffs' efforts to seek relief from the Egyptian authorities proved abortive." 448 F.3d at 179. The Bigio decision was not based upon plaintiffs' religion, nor a finding that Egypt is generally an inadequate forum for plaintiffs. Rather, the Second Circuit found that the district court failed to appreciate plaintiffs' legitimate reasons for bringing their action in the United States, namely plaintiffs' previous failed attempt at resolving their dispute in Egypt. In this case, however, no such legitimate reasons exist.

Moreover, as discussed more fully below, plaintiffs are not limited to bringing suit in Egypt, as Israel is also an alternative forum for plaintiffs to pursue their claims. Like Egypt, Israel is a more appropriate forum than the United States because many plaintiffs are citizens of Israel, many of the injured received, and continue to receive, medical treatment in Israel, and the majority of the evidence is either in Hebrew or Arabic, which an Israeli court can review without the expense and difficulties of translation. (See Sharon Decl.¶ 20(b); Pls.' Opp'n 19, 21.)

Plaintiffs also contend that in determining the level of deference owed to plaintiffs' choice of forum, this Court should consider the emotional burden that plaintiffs would suffer if forced to litigate in Egypt. (Pls.' Opp'n 8-9.) In Guidi v. Inter-Continental Hotels Corp., the Second Circuit held that it was an error of law to not give any weight to the emotional burden faced by plaintiffs if the case were to be heard in Egypt. 224 F.3d 142, 147 (2d Cir. 2000). The Guidi Court found ample evidence of hostile attacks against foreigners in Egypt, and noted that the subsequent killing of nine foreign tourists by the same man who attacked plaintiffs gave credence to plaintiffs' fears and concerns about proceeding in Egypt. Id. This Court recognizes that, like in Guidi, plaintiffs are victims of a vicious attack that was probably motivated by religious extremism targeted at Jewish and Israeli tourists. Moreover, as in Guidi, plaintiffs have legitimate reasons for not wanting to return to Egypt, and this Court appreciates that the burden of pursuing their claim in Egypt could have impacted plaintiffs' decision to file their claims in this Court. Notably, however, in addition to the district court's failure to weigh plaintiffs' emotional burden in Guidi, the Second ...


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