On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-5493-01.
Before Judges Wefing, Collester and Fuentes.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2003
Plaintiff Ana Madan-Russo appeals from that portion of an order of the Law Division on December 9, 2002, dismissing her complaint with prejudice based on the doctrine of forum non conveniens. We reverse and remand for trial.
Plaintiff, a resident of New Jersey, was the owner/operator of six McDonald's restaurants in New Jersey. She attended a conference of some 250 McDonald's executives and operators from throughout the United States at the Fiesta American Cancun Hotel in Cancun, Mexico between July 2 and July 6, 1999. The conference, called the Second Latin-American Marketing Symposium, was organized by the McDonald's Hispanic Operators Association, which was based in California. The attendees paid for their hotel accommodations through a department within the McDonald's corporate headquarters in Oakbrook, Illinois.
The Fiesta American Cancun is described in its advertisements as a luxury beachfront hotel of 281 rooms with all resort amenities. It is owned and operated by the defendant Grupo Posadas, S.A. de C.V., which is incorporated and maintains its principal office in the Republic of Mexico. It has no business premises in New Jersey and is not registered as a foreign corporation. Nonetheless, it advertises extensively by use of travel magazines, major airline vacation packages, direct solicitations to travel agencies and eight Internet interactive web sites.*fn1
Plaintiff avers that at 5:00 p.m. on July 4, 1999, she went for a scheduled massage at the hotel's spa facility. The masseuse was later identified as Lowell Lazaro Duval, an employee of the hotel. According to plaintiff, she was sexually assaulted during the massage. She explained that when she turned over on her back, Duval pinned her arms back and climbed on the table to get on top of her. When plaintiff resisted, Duval slammed her head on the massage table, jabbed a washcloth in her mouth and began groping her. The assault stopped when a person plaintiff believed to be a janitor came into the room. Plaintiff was then able to spit out the washcloth and scream.
Plaintiff went immediately to the front desk to report the assault. After another employee took Polaroid pictures of her jaw and arm, plaintiff was told to wait in her room for a call from the hotel general manager. She went to her room and called a friend attending the same conference, who spent the evening with her. At 9:46 p.m. the general manager called, and plaintiff told him that she wanted to leave as soon as possible.
She was given extra security that night and arrangements were made for her departure the following morning on an 11:30 a.m. flight to Newark.
Plaintiff neither sought nor received medical attention at the hotel. She did not file a criminal complaint against Duval or ask to meet with Mexican law enforcement authorities. After she returned to New Jersey, she received medical treatment including psychological counseling. On October 13, 1999, she delivered a letter of complaint regarding the incident to the Mexican consulate in New York City. Meanwhile, the hotel conducted an investigation by interviewing Duval and other employees. Duval's employment was terminated, and his whereabouts are unknown. He was never arrested or charged with any criminal offense relating to the alleged incident.
On May 31, 2001, plaintiff filed her complaint alleging negligent supervision and management by defendant as well as negligent hiring and training of employees.*fn2 Defendant filed an answer and moved to dismiss for lack of personal jurisdiction and on grounds of forum non conveniens. The motion was initially denied without prejudice to enable further discovery relating to the jurisdiction issue. Upon its renewal, the motion judge held that there were sufficient contacts for exercise of personal jurisdiction but dismissed the complaint based on forum non conveniens. In a subsequent oral opinion, the motion judge gave the following reasons for dismissal:
In this case there is no question that the hotel, its current and past operators, all of its documents, and employees who would potentially be witnesses in this case are located in Mexico. Defendant would suffer a burden in the expense and inconvenience of transporting its representatives and fact witnesses to New Jersey. Some evidence is located here in New Jersey, as plaintiff received some medical treatmentà and this is where the plaintiff resides. As to the pursuit of a remedy in a foreign forum [it] will equally burden the plaintiff and defendant. And understanding that New Jersey has a great interest in protecting its own citizens, however, that burden is not as great as Mexico's interest is in regulating its hotel, tourist industry, and protecting the population in general.
I find that there is a -- a much greater burden on the defendant to pursue this -- to defend this litigation inà the United States. And becauseà I consider the relative ease of the access of [the] proof, most of all the proof is down there in Mexico. The availability of compulsory process for the attendance of unwilling witnesses. Apparently the fellow who actually did this is down there, and it's going to [be] difficult locating him I gather from the papers, but I think it's more appropriate that the Mexican authorities make those efforts or assist in those efforts if necessary to locate and secure the attendance of that witness, and -- and potentially other party (sic) to this ...