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Wozniak v. Wyndham Hotels and Resorts

March 31, 2009


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow


Plaintiff, Danuta Wozniak ("Wozniak"), individually and on behalf of the estate of her deceased husband, Jan Wozniak, filed a three-count complaint against defendant Wyndham Hotels and Resorts, LLC ("WHR") asserting claims for survival, wrongful death, and loss of consortium in connection with Jan Wozniak's death after a slip-and-fall accident on the premises of the Wyndham CZM Resort & Spa Caribbean Rm ("Wyndham CZM") located in Cozumel, Quintana Roo, Mexico. Before the court is WHR's motion to dismiss under the doctrine of forum non conveniens. For the reasons set forth below, WHR's motion [#10] is granted.


On January 25, 2008, Wozniak filed this action against WHR in the Circuit Court of Cook County, Illinois. On March 6, 2008, WHR removed the case to this court pursuant to 28 U.S.C. §§ 1441 and 1332. Jurisdiction is proper under § 1332 as the plaintiff is a citizen of a different state from the defendant and WHR has a good faith basis to assert that the amount in controversy exceeds $75,000, based on Wozniak's claim that damages exceed the state court jurisdictional threshold of $50,000 and the fact that this case involves a wrongful death claim.


Jan and Danuta Wozniak, residents of Morton Grove, Illinois, booked a vacation at Wyndham CZM from October 10, 2007 through October 17, 2007. They purchased the vacation from a travel agency, American Travel Abroad, Inc., located in Chicago, Illinois. The trip was organized and run by a tour company, Apple Vacations, an Illinois corporation. According to the complaint, the Wozniaks chose to stay at Wyndham CZM because of their trust in WHR's reputation, and Wyndham CZM was marketed to them as being owned and operated by WHR.

While walking in the Wyndham CZM lobby on October 17, 2007, Jan Wozniak slipped and fell over the side of a stairwell. Mr. Wozniak died later that day from injuries sustained from the fall.

Wyndham CZM is owned and operated by Islander Properties S.A. de C.V. ("Islander"), a Mexican corporation. Islander is a franchisee of WHR. Defendant asserts (via affidavit), and plaintiff does not dispute, that (1) WHR has no ownership interest in Wyndham CZM; (2) WHR has never operated, managed, controlled, or occupied Wyndham CZM; (3) WHR has never been involved in the day-to-day operations, direction, or management of Wyndham CZM; and (4) no WHR employees work at Wyndham CZM.

Wozniak alleges that, at all times relevant, Islander was acting as an apparent agent of WHR. Wozniak contends that as a result of this alleged agency relationship, WHR owed Wozniak and her decedent a duty of reasonable care to maintain Wyndham CZM in a reasonably safe condition. All three of Wozniak's claims against Wyndham are based on this apparent agency theory.


The court may dismiss a case under the doctrine of forum non conveniens when it "best serves the convenience of the parties and the ends of justice." Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir. 1997) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). The forum non conveniens inquiry is guided by several considerations. First, an adequate forum must be available to hear the case. Id. at 802. If this threshold criterion is satisfied, the court must then balance the private interests of the litigants and the public interests of the forum to determine the superior venue. Id. at 803. Dismissal is proper if "the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256--57 n.23, 102 S.Ct. 252, 70 L.Ed. 419 (1981). The defendants bear the burden of persuading the court that a suit should be dismissed under the doctrine of forum non conveniens. In re Ford Motor Co., 344 F.3d 648, 652 (7th Cir. 2002).

I. Availability and Adequacy of Mexico as an Alternative Forum

In determining whether an adequate alternative forum is available, the court must consider both (1) the availability and (2) the adequacy of the alternative forum. An alternative forum is available if "all parties are amenable to process and are within the forum's jurisdiction." Kamel, 108 F.3d at 803. An alternative forum is adequate if "the parties will not be deprived of all remedies or treated unfairly." Id. (citing Piper, 454 U.S. at 255).

Defendant asserts that Mexico is an available alternative forum because WHR has agreed to submit to the jurisdiction of the Mexican courts for this case. A defendant's "amenab[ility] to process in the other jurisdiction" is ordinarily sufficient to establish the availability of the alternative forum. Macedo v. Boeing Co., 693 F.2d 683, 687 (7th Cir. 1982) (internal quotation marks omitted). Wozniak does not dispute the availability of Mexico as an alternative forum.

Defendant argues that Mexico is an adequate alternative forum because, as Wozniak concedes, Mexican law recognizes wrongful death claims. "A court may dismiss on forum non conveniens grounds even though the foreign forum does not provide the same range of remedies as are available in the home forum. However, the alternative forum must provide some potential avenue for redress." Kamel, 108 F.3d at 803 (citing Ceramic Corp. of America v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir. 1993)). According to WHR's expert, the Mexican law applicable to this case, the Quintana Roo Civil Code, allows civil liability claims for wrongful death by the surviving spouse and legitimate heirs of the decedent.

Wozniak nevertheless insists that Mexico would be an inadequate forum because the applicable Mexican law (1) caps the award on Wozniak's claim at about $4000 (because recovery is based on the decedent's income at time of death and Wozniak was on disability at the time of the accident); (2) does not recognize apparent agency in wrongful death cases; (3) does not recognize pain and suffering; (4) does not recognize loss of consortium claims; and (5) does not allow recovery by financially independent children in wrongful death claims.

Wozniak's arguments are unavailing. As the Supreme Court clarified in Piper Aircraft Co. v. Reyno, the fact that substantive law in the alternative forum may be less favorable to the plaintiff carries limited weight in a forum non conveniens analysis. 454 U.S. at 247--55. It is not the place of a United States court to render judgments on another nation's tort policy. See Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 847 (7th Cir. 1999) (noting the danger of "provincialism: an inability to recognize that a different jurisdiction (especially a foreign country) need not be benighted to have a different approach to a particular legal problem"); Gonzalez v. Chrysler Corp., 301 F.3d 377, 382 (5th Cir. 2002) ("[T]he Mexican people, through their duly-elected lawmakers, have decided to limit tort damages with respect to a child's death. It would be inappropriate-even patronizing-for us to denounce this legitimate policy choice by holding that Mexico provides an inadequate forum for Mexican tort victims."). That Wozniak may find the amount of potential recovery in a Mexican court unsatisfactory does not render Mexico an inadequate forum, as it might be if it deprived him of any remedy or treated him unfairly. See Piper, 454 U.S. at 255 ("Although the relatives of the decedents may not be able to rely on a ...

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