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Degregorio v. Marriott International, Inc.

Superior Court of Delaware

June 20, 2018


          Submitted: May 25, 2018

         On Defendants' Motion to Dismiss. GRANTED.

          Meghan Butters Houser, Esquire, Weiss, Saville & Houser, P.A., Wilmington, Delaware, Attorney for Plaintiffs.

          Michael C. Heyden, Jr., Esquire, Gordon & Rees LLP, Wilmington, Delaware; Ilan Rosenberg, Esquire, Gordon & Rees LLP, Philadelphia, Pennsylvania, pro hac vice, Attorneys for Defendants.


          Richard R. Cooch, J.


         Venice and Nicholas DeGregorio ("Plaintiffs") filed this negligence suit in this Court on February 1, 2018 against the JW Marriot Los Cabos Beach Resort & Spa, in San Jose del Cabo Mexico (the "Hotel"), Marriott International, Inc. ("Mil"), Operadora Punta Peninsula, S.A. de C.V. ("OPP"), and Operadora Mision San Jose, S.A. de C.V. ("OMSJ") (collectively "Defendants") for injuries incurred by Venice DeGregorio, allegedly in connection with a slip and fall which occurred on Hotel premises in Los Cabos, Mexico on April 9, 2016.

         Defendants have brought a motion to dismiss, in which they argue three grounds for dismissal. First, Defendants argue that Plaintiffs' claim should be adjudicated in Mexico, not Delaware, due to a forum selection clause that Plaintiffs signed when they checked into the Hotel. Second, under the doctrine of forum non conveniens, Mexico, they assert, is the most convenient forum to hear this dispute. Third, Defendants argue that Delaware lacks personal jurisdiction to hear this claim.

         Plaintiffs in response argue against enforcement of the forum selection clause, contest Mexico as the appropriate and most convenient forum in accordance with the doctrine of forum non conveniens, and assert that Delaware does, in fact, have personal jurisdiction over at least one defendant, Mil, as it is incorporated in Delaware. In addition to arguing these three grounds on the merits, Plaintiff also requests discovery as to each contention.

         This Court concludes that the forum selection clause, which requires that all disputes "relating to the services rendered to the guest" be resolved in Mexico, controls here. This action could have been brought in Mexico and not in this Court.[1] Further, Plaintiffs' discovery request is denied because Plaintiff does not allege any facts that, if true, would warrant avoidance of the forum selection clause. Instead, Plaintiffs only request that they engage in discovery to determine "whether" such facts exist. The Court grants Defendants' motion to dismiss.[2]


         Plaintiffs checked in as guests at the Hotel on April 8, 2016. As part of the check-in procedure, Plaintiffs signed a Registration Card, which illustrated the terms and conditions of their stay at the Hotel, including, but not limited to, a forum selection clause that designated Mexico as the jurisdiction in which to resolve "any dispute relating to the services rendered to the guest. . . ."[3]

         Venice DeGregorio allegedly slipped and fell near a swimming pool on Hotel grounds on April 9, 2016. Mrs. DeGregorio apparently suffered injuries to her wrist, shoulder, and forearm as a result of her fall. She underwent immediate surgery in Mexico for her injuries. Mrs. DeGregorio brought this cause of action for negligence based on alleged premises liability, and her husband, Nicholas DeGregorio, brought a derivative claim for loss of consortium in this Court.

         Plaintiffs and brought their claim against the Hotel, [4] Mil, OPP, and OMSJ. Plaintiffs were and are Pennsylvania residents. The Hotel is located in Mexico. OPP and OMSJ are both Mexican corporations. OPP owns the property on which the Hotel is located. OMSJ operates the Hotel. In their complaint filed in Pennsylvania state court, Plaintiffs alleged that Mil was a Maryland corporation (which was subsequently corrected by Defendants' submission of a declaration of Andrew Wright, Esquire, Vice President and Senior Counsel of Defendant Marriott who confirmed Mil's state of incorporation as Delaware) with its principal place of business in Maryland.

         This Court is actually the third court to hear Plaintiffs' claims. Plaintiffs originally filed suit in the Pennsylvania Court of Common Pleas in Philadelphia.[5]However, Defendants removed the case to the United States District Court for the Eastern District of Pennsylvania (the "Eastern District").[6]

         Defendants then moved in the Eastern District pursuant to Federal Rule of Civil Procedure 12(b)(2) to dismiss the Pennsylvania complaint on essentially identical grounds as the instant motion before this Court. Defendants argued for dismissal on the grounds that 1) the Eastern District lacked personal jurisdiction over all four Defendants; and 2) forum non conveniens and a valid forum selection clause in the Registration Card mandated that the case be heard in Mexico.[7]

         The Eastern District granted Defendants' Motion to Dismiss on the basis that the Eastern District cannot exercise either general or specific jurisdiction over Defendants, stating in pertinent part:

In support of their motion to dismiss, Defendants attached the declaration of Andrew Wright, Esquire, Vice President and Senior Counsel of Defendant Marriott, to provide and correct various jurisdictional facts. In the declaration, Mr. Wright attests that Defendant Marriott is actually incorporated in Delaware, rather than in Maryland as alleged by Plaintiffs, and confirms that Defendant Marriott's principal place of business is located in Maryland. Mr. Wright also attests that Defendant Marriott never owned, controlled or operated the JW Hotel.
In their response to Defendants' motion to dismiss, Plaintiffs do not offer any rebuttal to the jurisdictional facts set forth in the sworn declarations above-referenced. Plaintiffs merely point to the hundreds of hotels within the Eastern District of Pennsylvania purportedly owned and operated by Defendant Marriott and advertised on Defendant Marriott's website, as sufficient minimum contact to support personal jurisdiction in this matter.[8]

         The Eastern District held that Defendants were neither "essentially at home" in Pennsylvania for purposes of general jurisdiction, nor did Plaintiffs' claim "arise from or relate to [Defendants'] contacts with [Pennsylvania]."[9] Notably, and in connection with the instant motion to dismiss, the Eastern District dismissed Plaintiffs' claims on personal jurisdiction grounds and did not reach the forum non conveniens issue or the forum selection clause issue.[10]

         Following the dismissal of their claim in the Eastern District, Plaintiffs filed (through new counsel) their complaint in this Court.


         A. Defendants' Contentions

         Defendants argue in favor of dismissal because, as they claim, "Plaintiffs' causes of action themselves bear no relationship to Delaware."[11] Defendants claim that "Plaintiffs chose the appropriate forum long before filing this (or the Pennsylvania) lawsuit when they signed a binding forum selection clause" which designated Mexico as the exclusive forum for any dispute related to services rendered at the Hotel.[12] Defendants make the same three arguments in this Motion to Dismiss as they did before the Eastern District. First, Defendants argue that the forum selection clause mandates dismissal of Plaintiffs' complaint. Second, Defendants contend that the complaint should be dismissed based on the doctrine of forum non conveniens. Third, the court lacks personal jurisdiction over OPP and OMSJ.

         B. Plaintiffs' Contentions

         Plaintiffs argue that "information obtained from [Mil's] own website suggests that all Defendants are intricately connected to Plaintiffs' claims as stated in their Complaint, and would, therefore, all be subject to suit before this Court."[13] Plaintiffs assert that, based on this apparent connection between the Defendants, "it is necessary for Plaintiffs ... to be afforded the opportunity to obtain discovery from Defendants."[14] Plaintiffs make three arguments, which address the three issues raised by Defendants in their motion: personal jurisdiction, the forum selection clause, and forum non conveniens.

         First, as to personal jurisdiction, Plaintiffs contend that the motion to dismiss should be denied in order for Plaintiffs to conduct discovery to determine whether this Court has personal jurisdiction over the Defendants.[15] Plaintiffs argue that, despite Defendants' affidavits which show that OPP and OMSJ are Mexican corporations with their principal place of business in Mexico and that Mil does not own the Hotel, Plaintiffs should still be entitled to discovery "to obtain facts on the relationship among Defendants and the [Hotel] in aid of their defense of Defendants' Motion to Dismiss.[16]

         Second, Plaintiffs argue that the forum selection clause is not binding "because the forum selection clause referenced in the Registration Card, on its face, does not preclude Plaintiffs' cause of action and it is likely that additional evidence obtained through discovery will show that enforcement of the clause in this case would be both unreasonable and unjust."[17] Plaintiffs argue that "it is necessary for [them] to obtain discovery from Defendants in order to determine whether Plaintiffs feely and knowingly accepted the terms in the forum selection clause, and in order to investigate whether Defendants engaged in any undue influence or overweening bargaining power."[18]

         Plaintiffs assert that a "strictly binding" forum selection clause must include language, which clearly indicates that the forum selection clause "excludes all other courts before which those parties could otherwise properly bring an action."[19]Therefore, as Plaintiffs contend, because the forum selection clause in the Registration Card designated Mexican courts for the purpose of resolving disputes "relating to the services rendered to the guest[, ]" and did not expressly state that the clause applied to personal injury actions, Plaintiffs should not be precluded from bringing the instant cause of action in this Court.

         Plaintiffs also argue that the Registration Card in which the forum selection clause was included was "ambiguous" because portions of the print were in both English and Spanish and contained "grammar and spelling mistakes[.]"[20] Plaintiffs also argue that the forum selection clause was "in small print at the end of a paragraph containing other information[.]"[21]

         Third, Plaintiffs argue that this Court should deny Defendants' Motion to Dismiss because the forum non conveniens analysis weighs in favor of this Court. Plaintiffs also appear to argue again in the alternative that they are entitled to additional discovery on the forum non conveniens issue. Plaintiffs contend that their "choice of forum will be defeated only where the defendant can establish . . . overwhelming hardship and inconvenience."[22]


         Upon a motion to dismiss for lack of personal jurisdiction pursuant to Superior Court Rule 12(b)(2), the plaintiff bears the burden of showing a basis for the trial court's exercise of jurisdiction over a nonresident defendant.[23] "In ruling on a Rule 12(b)(2) motion, the court may consider the pleadings, affidavits, and any discovery of record."[24] Absent an evidentiary hearing or jurisdictional discovery, the plaintiff need only make a. prima facie showing in the complaint of personal jurisdiction.[25]The Court accepts all well-pleaded factual allegations in the complaint as true, unless contradicted by affidavit, construes the record in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of the nonmoving party.[26]

         Upon a motion to dismiss for improper venue pursuant to Superior Court Rule 12(b)(3), this Court "may consider materials outside the complaint."[27] Similar to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, "a motion to dismiss premised on a forum selection clause does not challenge whether the complaint states a claim upon which relief can be granted. Instead, a motion based on a forum selection clause challenges where the plaintiff may assert his claim."[28]

         V. DISCUSSION

         A. Plaintiffs' Claim is Dismissed Because the Forum Selection Clause is Valid and Designates Mexico as the Exclusive Forum for this Action.

         Plaintiffs' claim is dismissed because the forum selection clause contained in the Registration Card is valid and mandates that this claim be litigated in Mexico, not Delaware. The forum selection clause found on the Registration Card reads as follows:

By virtue of the fact that this company: OPERADORA MISION SAN JOSE, S A. de C.V. is Mexican and the services are rendered in the Mexican Republic, the undersigned specifically accepts the jurisdiction and competency of the courts of the Mexican Republic, for the purposes of resolving any dispute relating to the services rendered to the guest who expressely [sic] waives the jurisdiction or competency of any courts or authorities outside Mexico.[29]

         "Forum selection clauses are presumptively valid and should be specifically enforced unless the resisting party clearly shows that enforcement would be unreasonable and unjust, or that the clause is invalid for such reasons as fraud and overreaching."[30] A party objecting to the enforcement of a forum selection clause can avoid its enforcement if the objecting party can establish that "enforcement would violate a strong public policy of the forum" or that "enforcement would, in the particular circumstances of the case, result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable."[31] "Inconvenience or additional expense is not the test of unreasonableness; rather, a provision is unreasonable only when its enforcement would seriously impair the plaintiffs ability to pursue its cause of action."[32] The Delaware Supreme Court has held that, because of the fact-intensive nature of determining "reasonableness," courts in Delaware should analyze "reasonableness" on a case-by-case basis.[33] "Delaware courts have actively enforced forum selection clauses that operate to divest Delaware courts of jurisdiction, even when venue in Delaware would otherwise be proper."[34]

         The forum selection clause on the Registration Card must be enforced because Plaintiffs have not "clearly show[n]" that enforcement of the clause would be "unreasonable and unjust, or that the clause is invalid for such reasons as fraud and overreaching."[35] Plaintiffs must demonstrate why the presumed validity of a forum selection clause should be upended. Plaintiffs offer very little with the exception of a general attack on the alleged ambiguity of the Registration Card.

         Plaintiffs' argument that the supposedly "ambiguous" language in the forum selection clause, which limits a cause of action "relating to services rendered to the guest, "[36] "does not preclude Plaintiffs from bringing their personal injury claims"[37] is unavailing. "[A] contract is ambiguous only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings."[38] A slip and fall premises liability claim when one of the Plaintiffs "fell near the pool on [Defendants' premises in Mexico"[39] falls under the purview of "services rendered." Plaintiffs have offered no alternative interpretation of the forum selection clause other than that it does not "expressly state that the undersigned would be accepting the jurisdiction of the Mexican Republic for personal injury actions.[40] However, the Delaware Supreme Court has held that "[c]ourts will not torture contractual terms to impart ambiguity where ordinary meaning leaves no room for uncertainty."[41] Here, the "ordinary meaning" of "resolving any dispute relating to the services rendered to the guest" includes slip and falling tort litigation related to a guest falling near the pool located at the Hotel.

         Further, Plaintiffs allege ambiguity of the Registration Card on its face. They claim that grammar and spelling errors, the fact that both Spanish and English is used in the Registration Card ("with certain portions being printed in Spanish only"), font size, and "capitalize[d] and/or circle[d] language" used ostensibly "to stress emphasis" renders the Registration Card ambiguous.[42] In Kalb v. MarriottInt'l, Inc., the United States District Court for the Southern District of Florida very recently held that this identical Registration Card was unambiguous, valid, and enforceable.[43] This Court similarly now finds that the ...

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