The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on Defendant Hilton Worldwide, Inc.'s ("Defendant") motion to dismiss Plaintiffs Kathleen A. Lynch and James J. Lynch's complaint [Docket Item 3.] The Defendant argues that the Plaintiffs' complaint should be dismissed for failure to state a claim or in the alternative, the complaint should be dismissed for forum non conveniens. For the reasons expressed below, the Court will dismiss Plaintiff's complaint based upon the doctrine of forum non conveniens. The Court will not address the sufficiency of Plaintiffs' complaint as the Defendants' motion to dismiss for failure to state claim is rendered moot.
The instant action is a personal injury suit arising from Plaintiff Kathleen Lynch slipping and falling while using the bathtub/shower in her room at the Hilton London Euston Hotel, in London, United Kingdom ("London Hotel"). The London Hotel is allegedly owned and operated by the Defendant; however, the Defendant disputes this allegation of Plaintiff's complaint.*fn1
The complaint alleges that on or about April 13, 2009, Plaintiff Kathleen Lynch was staying at the Hilton London Euston Hotel in London, United Kingdom, as a hotel guest in Room 130. (Comp. ¶ 11.) Room 130 had a bathroom with a bathtub with high sides, no flat standing surface, no appropriate slip protection and no railing/handrails in the bath area. (Comp. ¶ 12.) As a result, the Plaintiff Kathleen Lynch slipped and fell while attempting to use the bathtub/shower in Room 130 (Comp. ¶ 14) and sustained injuries (Comp. ¶ 19).
The Plaintiff Kathleen Lynch, along with her husband, Plaintiff James Lynch, brought the instant action against the Defendant alleging negligence/premises liability, loss of consortium and punitive damages. This case was initially filed in the Superior Court of New Jersey, Burlington County Vicinage. The Defendant then removed the action to the District of New Jersey. [Docket Item 1].
After the case was removed, the Defendant filed a motion to dismiss the Plaintiff's complaint. [Docket Item 3.] The Defendant argues that Plaintiffs' complaint should be dismissed for failure to state claim because the Plaintiffs have not alleged sufficient facts under Fed. R. Civ. P. 8 to present a plausible basis for relief. Specifically, the Defendant contends that the Plaintiffs have not alleged any facts that the Defendant owed a duty to the Plaintiffs or that the Defendant owns, operates or holds any possessory rights over the London Hotel.
In the alternative, the Defendant argues that the Plaintiffs' complaint should be dismissed for forum non conveniens because the United Kingdom is a more appropriate forum that will best serve the convenience of the witnesses and parties and advance the interests of justice.
Plaintiffs oppose Defendant's motion to dismiss. The Plaintiffs first maintain that its complaint satisfies the pleading requirements under Fed. R. Civ. P. 8 and states a claim upon which relief can be granted. Second, the Plaintiffs argue that New Jersey is a proper forum for this litigation. Initially, the Plaintiffs state that the Defendant has not met its burden showing that the United Kingdom is an adequate alternative forum. The Plaintiffs contend that they are residents of New Jersey and the choice of their home forum should be given deference. The Plaintiffs also argue that their medical providers are all located in New Jersey and the case would generate witness problems whether tried in this forum or the United Kingdom. The Plaintiffs admit that the United Kingdom has an interest in this dispute; however, the Plaintiffs argue that the balance of private and public interests favor proceeding in New Jersey.
In determining whether to dismiss a case based upon forum non conveniens, the court must address (1) the availability of an adequate alternate forum; (2) the degree of deference to be accorded to the plaintiff's choice of forum; and (3) the balance of private and public interest factors with the degree of deference accorded the plaintiff's choice of forum. See Tech. Dev. Co. v. Onischenko, 174 Fed. Appx. 117, 120 (3d Cir. 2006). "The defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis." Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991) (internal citations omitted). "The common-law doctrine of forum non conveniens 'has continuing application [in federal courts] only in cases where the alternative forum is abroad,' and perhaps in rare instances where a state or territorial court serves litigational convenience best." Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 549 U.S. 422, 430 (2007) (citations omitted) (emphasis added).
B. Availability of Adequate Alternative Forum
In dismissing a case based on the doctrine of forum non conveniens, the first requirement is the existence of an adequate alternative forum. A forum is considered an adequate alternative if two conditions are met. First, the Defendant must be amendable to process in the alternate forum. Second, there must be a cause of action in the alternative forum which provides the plaintiff a redress for his injury. Kroger, Inc. v. O'Donnell, No. 07-3091, 2007 W.L. 3232586 at *3 (D.N.J. Oct. 31, 2007).
In this case, the Defendant maintains that the United Kingdom is an adequate alternative forum. The Defendant Hilton Worldwide, Inc. is amenable to process in the United Kingdom. (Ex. A. to Pl.'s Reply Br., Decl. of Owen Wilcox at ¶ 3.) This is not disputed by the Plaintiff and is certified to in the Declaration of Owen Wilcox, who is a vice president of the Defendant corporation. Since Defendant Hilton Worldwide Inc. is the only named Defendant in this action,*fn2 the first requirement of an adequate alternative forum is met.
In regards to the second element, there are two causes of action which would provide the Plaintiffs with redress available in the United Kingdom. Based on the facts alleged in the Complaint, the Plaintiffs could bring suit for negligence tort liability as well as statutory liability under the Occupiers' Liability Act of 1957 c. 31 in the United Kingdom. In fact, a recent case was decided in the United Kingdom addressing both these causes of action involving facts very similar to present circumstances. See Murdock v. Scarisbrick Group Limited, (2011) EWHC 220 (Q.B.).
However, "if the statute of limitations has expired in the alternative forum, the forum is not available, and the motion to dismiss based on forum non conveniens would not be appropriate." MSC Mediterranean Shipping Co. v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 202 (4th Cir. 2009). Alternatively, a defendant moving for dismissal pursuant to the doctrine of forum non conveniens can "explicitly concede[d] that it is subject to the jurisdiction of [the foreign] courts or waive any jurisdictional or other legal obstructions that may impede plaintiffs' case there." D'Elia v. Grand Caribbean Co., Ltd., No. 09-1707, 2010 WL 1372027 at *7 (D.N.J. March 30, 2010). By waiving the statute of limitations defense, a defendant can satisfy its burden of proof regarding an adequate alternative forum.
In support of its motion to dismiss for forum non conveniens, the Defendant submitted the certification of Owen Wilcox, Vice President and Senior Counsel for Hilton, which declared that "Hilton is amenable to legal process in the United Kingdom for the Plaintiffs' case." (Ex. A. to Pl.'s Reply Br., Decl. of Owen Wilcox at ¶ 3.) The Court interprets this declaration as a waiver of any jurisdictional or other legal obstructions that may impede the Plaintiffs' case in the United Kingdom and the Defendant is deemed to have waived any statute of limitations defense available in the new forum.*fn3
Therefore, the Court finds that the United Kingdom is an adequate alternative forum for Plaintiffs' claims. The Defendant is amenable to process in the alternate forum and there are causes of action in the alternative ...