Nandjou v. Marriott Int'l, Inc. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2189
CHIMENE MBAGUE NANDJOU, individually and as Administratrix of
the Estate of Menelik Tchouamou and the Estate of William
Tchouamou Ganjui, and as Mother and Next Friend
of A.L.S. and W.T.M.,
Plaintiff, Appellant,
v.
MARRIOTT INTERNATIONAL, INC.; MARRIOTT WORLDWIDE
CORPORATION; RELUXICORP, INC. d/b/a The Residence Inn by
Marriott,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Thompson and Barron,
Circuit Judges.*
Ross E. Schreiber, with whom The Schreiber Law Firm LLC was
on brief, for appellant.
Paul K. Leary, Jr., with whom Michael A. Savino and Cozen
O'Connor were on brief, for appellees.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
January 15, 2021
BARRON, Circuit Judge. This appeal arises out of a suit
for damages that Chimene Mbague Nandjou brought against three
defendants in connection with the April 2016 drowning deaths of
her husband, William, and two-year-old son, Menelik, in a hotel
pool in Montreal, Canada. The defendants are Marriott
International, Inc.; Marriott Worldwide Corporation; and
Reluxicorp, Inc., the Marriott franchisee in Montreal where the
drowning occurred.
Nandjou's suit was removed from the local Massachusetts
court in which she had filed it to the United States District Court
for the District of Massachusetts, and the District Court, after
finding personal jurisdiction over the three defendants, then
dismissed it based on the doctrine of forum non conveniens after
determining that an adequate alternative forum for the claims was
available in Canada. Nandjou now appeals that ruling.
The defendants contend that dismissal on that basis was
proper and, alternatively, that the order of dismissal must be
affirmed on the ground that there is a lack of personal
jurisdiction over them. We reverse the District Court's dismissal
of Nandjou's claims based on forum non conveniens but affirm its
ruling finding personal jurisdiction over the three defendants.
I.
The following facts, which we draw from Nandjou's
complaint and the limited discovery that was allowed, are not in
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dispute. At the time of the events that gave rise to this suit,
Nandjou, her husband, and their three children lived in Lynn,
Massachusetts. At that residence, they received numerous direct
mailings from the Marriott defendants advertising various Marriott
properties. On at least three occasions, Marriott sent materials
to Nandjou and her husband's address that promoted "The Residence
Inn by Marriott" in Montreal. In the spring of 2016, after having
viewed those mailings, which included photographic depictions of
the hotel and described its pool, Nandjou's husband booked a stay
there.
On that trip, on April 20, 2016, Nandjou's husband took
the three children to the hotel pool to swim. No one else was
present at the scene at the time. Around 6:00 p.m., William, who
was holding two-year-old Menelik, began to drown. The other two
children, ages eight and four, attempted to rescue their father
and brother but were unable to do so.
Another hotel guest, visiting from Arizona, eventually
came along. She was able to gain access to the pool area and
called emergency services. Emergency personnel began to arrive
approximately twenty minutes later. They transported Nandjou's
son and husband to a nearby hospital in Montreal, where her husband
was pronounced dead. Her son was pronounced brain dead two days
later.
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Nandjou filed suit in September 2018, in the Superior
Court of Suffolk County, Massachusetts, against Reluxicorp, Inc.,
which is the owner of the hotel in question, a franchisee of
Marriott, and a Canadian corporation that has its principal place
of business in Montreal; Marriott International, Inc., which is a
Delaware corporation that has its principal place of business in
Maryland; and Marriott Worldwide Corporation, which is a wholly
owned subsidiary of Marriott International that is both
incorporated and headquartered in Maryland. Nandjou's complaint
asserted wrongful death claims against Reluxicorp and the two
Marriott defendants, as well as a claim for vicarious liability
against each of the Marriott defendants based on Reluxicorp's
status as a Marriott franchisee. She also brought a claim against
all three defendants for negligent infliction of emotional
distress on the surviving children, as well as a claim against all
three defendants for the conscious pain and suffering endured by
Menelik, her two-year-old son who died following the incident at
the pool. Nandjou's complaint sought, among other types of relief,
punitive damages.
The defendants removed the case to the District of
Massachusetts based on diversity of citizenship on October 25,
2018. They then filed a motion in that court in November 2018 to
dismiss Nandjou's claims based on the doctrine of forum non
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conveniens and pursuant to Federal Rule of Civil Procedure 12(b)(2)
for lack of personal jurisdiction over any of the three defendants.
The District Court denied that motion, but the
defendants followed up by filing a motion for reconsideration or
for a certificate of appealability on their motion to dismiss. On
review of the motion for reconsideration, the District Court first
addressed whether there was personal jurisdiction over the three
defendants and concluded that there was. Nandjou v. Marriott
Int'l, Inc., No. 18-cv-12230-ADB, 2019 WL 2918043, at *1 (D. Mass.
July 8, 2019).
The District Court started by concluding that the
Marriott defendants' marketing in Massachusetts concerning the
Reluxicorp-owned hotel in Canada where the drownings occurred
could be attributed to Reluxicorp because "the Defendants all used
the Marriott name and coordinated their business and marketing in
a manner that may reasonably have created the appearance of
authority to bind one another." Id. at *4. Then, after finding
Massachusetts' long-arm statute satisfied, id. at *5, the District
Court assessed whether the Marriott defendants' contacts in
Massachusetts via its marketing in that state were sufficient, as
a matter of federal constitutional due process, to satisfy the
three prongs of the test for establishing specific jurisdiction
over those two defendants and Reluxicorp: relatedness, purposeful
availment, and reasonableness, id. at *5-7. Focusing on the
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advertisements promoting the Reluxicorp-owned hotel that the
Marriott defendants had sent to Nandjou's home in Massachusetts,
the District Court held that they were. Id. at *6-7.
There remained, however, the defendants' motion for
reconsideration of the District Court's denial of the motion to
dismiss based on the doctrine of forum non conveniens. The
District Court decided to allow briefing and discovery on that
issue. Id. at *8. Thereafter, the District Court granted the
defendants' renewed motion to dismiss on forum non conveniens
grounds and ordered dismissal of Nandjou's claims pursuant to that
doctrine subject to the limitation that the defendants continue to
submit to personal jurisdiction in Canada on Nandjou's claims in
connection with the drownings in the parallel action that she had
filed against them in a court in that country. Nandjou v. Marriott
Int'l, Inc., No. 18-cv-12230-ADB, 2019 WL 5551438, at *6 (D. Mass.
Oct. 28, 2019).
Nandjou timely appealed from that ruling on November 15,
2019. We have jurisdiction under 28 U.S.C. § 1291.
II.
A.
"The doctrine of forum non conveniens . . . permits a
court to dismiss a case because the chosen forum (despite the
presence of jurisdiction and venue) is so inconvenient that it
would be unfair to conduct the litigation in that place." Howe v.
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Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991). "[T]he
practical effect" of a dismissal on these grounds is to require
the plaintiff "to file his complaint in a more convenient forum
elsewhere" in order to obtain relief. Id.
Congress has codified a federal district court's
authority to transfer a case pursuant to the doctrine of forum non
conveniens when a federal forum other than the one in which the
plaintiff has chosen to bring suit is available to hear the claims
elsewhere in this country. See Atl. Marine Constr. Co. v. U.S.
Dist. Ct., 571 U.S. 49, 60 (2013) (citing 28 U.S.C. § 1404(a)). A
federal district court also has the power to dismiss a case
pursuant to that doctrine, however, when the alternative available
forum for the case is in a foreign country. See Sinochem Int'l
Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430 (2007).
Because the doctrine of forum non conveniens permits a
federal district court to deprive a plaintiff of availing herself
of her "home forum" even when she otherwise would be legally
entitled to bring suit in it, the bar for a district court to
dismiss a suit pursuant to the doctrine is a high one. Adelson v.
Hananel, 510 F.3d 43, 53 (1st Cir. 2007). The doctrine "is
intended to 'avoid trials in places so "inconvenient" that transfer
is needed to avoid serious unfairness,'" id. at 52 (emphasis added)
(quoting Howe, 946 F.2d at 950), as it guards against not mere
inconvenience but a plaintiff "by choice of an inconvenient forum"
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litigating in a manner that would "vex, harass, or oppress the
defendant by inflicting upon him expense" or unnecessary trouble,
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (quotation
marks omitted). For that reason, "[i]n any balancing of
conveniences, a real showing of convenience by a plaintiff who has
sued in his home forum will normally outweigh the inconvenience
the defendant may have shown." Koster v. (Am.) Lumbermens Mut.
Cas. Co., 330 U.S. 518, 524 (1947); Nowak v. Tak How Invs., Ltd.,
94 F.3d 708, 720 (1st Cir. 1996).
The first step of the requisite inquiry under the
doctrine entails consideration of whether an adequate alternative
forum exists to the one that the plaintiff has chosen for her suit.
Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir. 2000).
If there is no adequate alternative forum, then there is no basis
for dismissal under the doctrine and thus no need to reach the
second step. See id. In the event that there is an adequate
alternative forum available, however, a court must weigh at the
second step of the inquiry what are known as the public interest
factors (such as the relative interests of the local forum and the
government with jurisdiction over the alternative forum) and the
private interest factors (such as the burdensomeness to the parties
and witnesses of having the case proceed in either of the available
fora). Id.
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 Dismissal based on the doctrine of forum non conveniens
is not appropriate when the consideration of the private and public
interest factors reveals that, as between the plaintiff and the
moving party, the relative burdens of litigating the case in the
plaintiff's home forum are in "equipoise," Adelson, 510 F.3d at
54, or only marginally favor litigating it in the alternative
forum, see, e.g., SME Racks, Inc. v. Sistemas Mecanicos Para
Electronica, S.A., 382 F.3d 1097, 1103 (11th Cir. 2004) (reversing
district court's dismissal where "the convenience factors were
about equal"); Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d
628, 640 (3d Cir. 1989) ("The conclusion that a balance at
equipoise or tipped toward the defendant favors dismissal is . . .
an error of law."). To establish the basis for dismissing a case
based on forum non conveniens, a defendant bears a "heavy burden,"
Adelson, 510 F.3d at 52, and must show that the assessment of the
relevant public and private interests favors the case being
litigated in the foreign forum to such a degree that it suffices
to overcome the presumption that the plaintiff is entitled to bring
her case in her home forum, see Iragorri, 203 F.3d at 15.
We also note, due to its relevance to our analysis below,
that in undertaking the necessary inquiry into the private interest
factors at the second step, a court must pay close attention to,
among other things, the nature of the plaintiff's claims and the
evidence that would be relied upon to adjudicate them, while giving
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particular attention to where the witnesses that the parties would
rely upon are located and how burdensome it would be for them to
appear in either the home or the foreign forum. See Gilbert, 330
U.S. at 508; see also Piper Aircraft Co. v. Reyno, 454 U.S. 235,
249 (1981) (explaining that "[e]ach case turns on its facts"
(alteration in original) (quoting Williams v. Green Bay & W. Ry.
Co., 326 U.S. 549, 557 (1946))); Howe, 946 F.2d at 951-52
(carefully examining the elements of the plaintiff's claims in
evaluating the location of the relevant evidence). In that
assessment, moreover, due consideration must be given to how many
such witnesses are third parties to the litigation and whether,
despite their third-party status, they would be subject to
compulsory process in either the home or the foreign forum. See,
e.g., Howe, 946 F.2d at 951 ("[O]nly Canadian courts, not courts
within the United States, have the legal power to compel the
testimony of twelve Canadian potential witnesses who are not under
the control of any party.").
Given the nature of the inquiry a court must undertake
under the forum non conveniens doctrine, we review a motion to
dismiss a claim on that basis only for an abuse of discretion,
Interface Partners Int'l Ltd. v. Hananel, 575 F.3d 97, 101 (1st
Cir. 2009), due to the district court's greater familiarity with
the practical realities of the litigation at hand. And, we
emphasize, a district court abuses its discretion in dismissing a
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case based on forum non conveniens only if it has "(1) failed to
consider a material factor; (2) substantially relied on an
improper factor; or (3) assessed the proper factors, but clearly
erred in weighing them." Id. (quoting Adelson, 510 F.3d at 52).
B.
There is no question that the District of Massachusetts
counts as Nandjou's home forum in this case, even though she now
lives in Georgia. See Adelson, 510 F.3d at 53 (explaining that
although the plaintiff was "not a Massachusetts domiciliary," the
U.S. District Court for the District of Massachusetts was "still
deemed a 'home forum' where the alternative [was] foreign"). Thus,
the District Court correctly articulated the operative standards
for assessing the motion to dismiss her claims pursuant to the
doctrine of forum non conveniens, see Nandjou, 2019 WL 5551438, at
*2-3, by expressly recognizing at the outset of its opinion that
Nandjou enjoyed a presumption against being denied her "choice of
forum" based on concerns about the inconvenience to the defendants
of litigating in it, id. at *2 (quoting Piper Aircraft Co., 454
U.S. at 241); that the defendants bear a "heavy burden" on a motion
to dismiss on the grounds of forum non conveniens, id. (quoting
Adelson, 510 F.3d at 52); and that the balance of public and
private interests must "strongly favor litigating the claim in the
second forum" to warrant dismissal, id. (emphasis added) (quoting
Adelson, 510 F.3d at 52).
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Accordingly, we are not persuaded by Nandjou's threshold
contention that the District Court committed a legal error by
failing even to apply the presumption against depriving a plaintiff
of her home forum based on concerns about the inconvenience to the
defendant. The District Court did, as Nandjou highlights, state
at a key point in its analysis that the private interests "weigh
in favor" of litigating the case in the Canadian forum without
expressly stating that they strongly favor litigation there. See
id. at *5. But, when read in context, that statement, like the
District Court's analysis of the record as a whole, is best
understood to have been premised on a proper understanding that
the nature of the showing that the defendants here must make to be
entitled to have Nandjou's claims dismissed on forum non conveniens
grounds is a demanding one.
Nandjou separately contends, however, that the District
Court clearly erred in applying this demanding standard to the
facts of this case. As we will next explain, we agree.
C.
There is no dispute between the parties that the District
Court correctly determined at the first step of the forum non
conveniens analysis that an adequate alternative forum did exist
in Canada. See id. at *3. In fact, at the time of the District
Court's ruling, Nandjou had filed a pending action against the
three defendants in a court in Canada in which she sought recovery
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for their respective roles in connection with the drownings of her
husband and son. See id.
There also is no dispute between the parties that the
District Court correctly determined, at the second step of the
analysis, that the public interest factors were "of neutral
weight," id. (capitalization altered), and thus that those factors
were "indeterminant" as to whether they favored litigating the
case in the Massachusetts or the Canadian forum, id. at *5. The
District Court rightly emphasized in so ruling that both
Massachusetts and Canada had an interest in the outcome of the
litigation, as the drowning victims were both Massachusetts
residents but the drownings were allegedly caused by the negligence
of a Canadian company in Canada. Id. at *4.
Nandjou contends, however, that the District Court
clearly erred in concluding that an assessment of the private
interest factors warranted the dismissal of her claims. The
District Court based the determination that they did on a pair of
key conclusions -- namely, that "the most important witnesses will
be those who can speak to the hotel's policy regarding pool
supervision and the exact circumstances on the day of the accident,
including the cause of Plaintiff's family members' deaths" and
that the "Defendants have demonstrated that the majority of those
relevant witnesses are Canadian residents." Id. at *6.
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 We conclude that Nandjou is right that the District
Court's assessment of the private interest factors -- and thus its
assessment of the second step of the requisite inquiry as a whole
-- is clearly wrong. To explain why, it helps to separate out
Nandjou's claims.
1.
To start, as Nandjou points out, the District Court's
analysis of the private interest factors cannot suffice to justify
the dismissal of her vicarious liability claim against each of the
two Marriott defendants. This claim is, of course, dependent on
a showing of Canadian-based Reluxicorp's underlying liability. In
that respect, it, like Nandjou's other claims, depends on a showing
about the circumstances at the hotel pool on the day of the
accident in Montreal. But, in its nature, this claim -- unlike
the others that Nandjou brings -- also is dependent on showings
that relate to the relationship between Reluxicorp as a Marriott
franchisee and the Marriott defendants, given that whether the
Marriott defendants are vicariously liable is a function of the
nature of the franchisor-franchisee relationship between them and
Reluxicorp.
As Nandjou highlights, the evidence bearing on that
relationship concerns, among other things, the extent to which the
Marriott defendants held out that Canadian franchisee to potential
customers as if it were owned, operated, and controlled by
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Marriott. See Thalin v. Friden Calculating Mach. Co., 153 N.E.2d
658, 661 (Mass. 1958) (evaluating whether plaintiff had
established franchisor's liability for franchisee's negligence by
considering, among other things, whether there was evidence "of
present or past holding out" by the franchisor). That evidence in
turn depends on testimony from witnesses who, so far as the record
reveals, are not all or even in the main located in Canada, given
that each of the Marriott defendants is based in the United States,
not Canada. Thus, when the full picture is considered as to the
witnesses in play for the vicarious liability claim against each
of the Marriott defendants, we do not see a basis for concluding
that the presumption in favor of having the case litigated in the
home forum chosen by the plaintiff has been overcome. Cf. Duha v.
Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006) ("The dismissal of
distinct claims effectively omitted from the forum non conveniens
analysis is not within the district court's discretion.").
2.
That said, the District Court's order of dismissal based
on forum non conveniens was not limited to the claim for vicarious
liability against the Marriott defendants. It encompassed all
claims against all defendants, and the other claims -- including
the ones brought against the Marriott defendants and those brought
against Reluxicorp -- are for conduct that occurred in Canada and
do not so directly target conduct that concerns the relationship
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between Reluxicorp and the Marriott defendants. Moreover, if it
were proper to dismiss those claims based on forum non conveniens,
then it might well be proper to dismiss the suit as a whole on
that basis, given the relationship between the vicarious liability
claim against both of the Marriott defendants and the other claims
that Nandjou brings. See U.S.O. Corp. v. Mizuho Holding Co., 547
F.3d 749, 750 (7th Cir. 2008) ("There is no reason for identical
suits to be proceeding in different courts in different countries
thousands of miles apart."); cf. Olympic Corp. v. Societe Generale,
462 F.2d 376, 379 (2d Cir. 1972) ("[T]he benefits of impleader
might be taken into account in a close case in deciding whether or
not to dismiss for forum non conveniens . . . ."). Nevertheless,
we cannot sustain the District Court's forum non conveniens
determination as to the other claims either.
In concluding that the balance of witnesses who would
supply the most important testimony for the remaining claims were
Canadians who were not themselves parties to -- or employees of
parties to -- the suit, the District Court made the following
tally. It noted that seven of the eight potential witnesses
referred to in a Canadian police report concerning the incident at
the pool were from Canada and that only one, the Arizona resident
whom we mentioned above, was from the United States. Nandjou,
2019 WL 5551438, at *5. It then further noted that the coroner
and all of the doctors who treated the victims of the drownings
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were based in Montreal and were unwilling to travel to
Massachusetts. Id. In addition, it noted that none of these
Canadian witnesses was an employee of a party to the suit and that
a number of other non-party witnesses were located in Canada,
including the first responders who were on the scene soon after
the drownings, six police officers who investigated the drownings,
and the building inspector. Id. Thus, even setting aside the
employees of the defendants who were potential witnesses, the
District Court concluded that there were twenty-five Canadian
third-party witnesses who potentially could provide testimony
relevant to the determination of liability on these claims. Id.
By contrast, the District Court concluded, Nandjou had
identified only: one U.S.-based witness (from Arizona and not
Massachusetts) who was present at the pool in the aftermath of the
drownings; her two children; two Massachusetts residents (Kim and
Gregg Pierce, who were guests at the hotel at the time); and a
number of damages witnesses. Id. at *6. The District Court
further determined -- supportably -- that the Arizona resident's
testimony did not render duplicative the testimony of the Canadian
residents who arrived on the scene at the pool, given that the
Arizona witness stated in a deposition that she was not
continuously present there in the aftermath of the drownings, as
she left for periods of time to call the police and to help the
children call their mother. Id. The District Court also
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discounted the significance of the Pierces' testimony on the ground
that "they did not actually observe the accident, but merely
observed the aftermath, including the first responders at the
scene." Id. And, finally, the District Court noted that, although
Nandjou had identified a number of Massachusetts residents who
could supply evidence bearing on the case in addition to the
Pierces and her children, they could do so only as to "damages"
and not liability. Id.
For these reasons, the District Court concluded that the
balance of the private interest factors sufficed to support having
the case litigated in Canada rather than Massachusetts and thus
dismissing Nandjou's claim pursuant to the doctrine of forum non
conveniens. Id. After all, the District Court determined, there
were an overwhelming number of third-party Canadian witnesses who
could testify to matters concerning liability. Id.
This accounting, however, gives too little weight to the
fact that the only potential witnesses who were present when the
drownings occurred were Nandjou's two surviving children. It is
true that they are not third parties. But, they are also obviously
central witnesses who hail from this country rather than Canada.
And they have the status as key witnesses not only when it comes
to the issue of damages, given their special capacity to describe
the trauma that they endured as a result of the events that
transpired, but also as to liability, because they alone can
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describe the scene as it looked at the moment the drownings
occurred and until any assistance came.
In addition, while we agree with the District Court that
the witness from Arizona cannot be said to render testimony from
all others who arrived on the scene in the immediate aftermath of
the tragedy duplicative, she is herself a significant third-party,
non-Canadian witness to the events. In fact, she was the first to
arrive at the scene after the drownings occurred. The
Massachusetts-based Pierces are similarly potentially significant
third-party witnesses, as they, too, were on the scene in the
immediate aftermath of the drownings and as they are not in any
evident respect less well positioned than any of the other hotel
guests from Canada who arrived in the wake of the drownings to
give relevant testimony bearing on the conditions at the pool at
that time.
In total, then, Nandjou has identified five non-Canadian
witnesses who are well positioned to provide live testimony as to
liability, of whom only two are not third parties. Additionally,
those two witnesses are not only the only ones who were actually
present when the drownings occurred but also are young children
who, if forced to testify in Montreal, would be required to return
to the country of their loved ones' deaths. Cf. Guidi v. Inter-
Cont'l Hotels Corp., 224 F.3d 142, 145 (2d Cir. 2000) (reversing
a dismissal based on forum non conveniens in part because the
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district court failed to consider the "emotional burden" it would
impose on the plaintiffs to return to Egypt, where their loved
ones were killed).
Moreover, although the District Court discounted the
numerous additional Massachusetts-based residents who could supply
evidence concerning damages, Nandjou, 2019 WL 5551438, at *6, we
do not see why the fact that these witnesses would not be
testifying as to liability provides a basis for concluding that
the burdensome nature of having them appear in a Canadian court is
of little importance to the inquiry. We are not aware of authority
that suggests that, under the doctrine of forum non conveniens,
testimony from witnesses regarding damages is inherently less
crucial than testimony from witnesses regarding liability.
Insofar as the defendants contend that the distinction
between liability and damages witnesses does matter to the inquiry
into the balance of private interests, they appear to rely on
Iragorri v. International Elevator, 203 F.3d at 16. But, they are
wrong to do so, given how the facts of that case differ from this
one.
There, we reviewed a district court decision dismissing
a case on forum non conveniens grounds that arose from an accident
in which the plaintiff's late husband fell to his death in an
elevator shaft in Colombia and sued the company that maintained
the elevator in the District of Maine. Id. at 10-11. With respect
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to the private interest factors, we noted that "problems of proof
would be exacerbated, not ameliorated, by a trial in Maine," in
part because "crucial liability witnesses" were located in
Colombia, because their "credibility [would be] under attack" at
trial, and because, if the trial were held in Maine, they "most
likely would appear, if at all, by video deposition with the
assistance of a translator." Id. at 16. By contrast, we
explained, the plaintiff's "suggested witnesses were experts,
concerned primarily with damages," and their "testimony would be
more amenable to depositions and translation." Id.
This review of our analysis in Iragorri shows that the
key distinction there was not that one set of witnesses would be
providing evidence about liability while the other would be
providing evidence about damages only. Rather, what mattered was
that the liability witnesses would need to provide live testimony,
while the damages witnesses were less likely to need to do so.
Here, however, there is no similar ground for distinguishing
between the sets of witnesses, so far as the record reveals.
Rather, live testimony from the damages witnesses for Nandjou may
be crucial to their presentation, given that they plan to provide
evidence about the type of person the victim was and the effect of
his loss on his wife and daughters. And the District Court made
no finding that the Canadian non-party liability witnesses for the
defendants whom it concluded were "most important" would be unable
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to provide the critical aspects of that testimony through means
other than live testimony. See Nandjou, 2019 WL 5551438, at *6.
Thus, on this record, we do not agree that there is a
supportable basis for saying that the defendants have met their
heavy burden to show that concerns about private convenience
justify depriving Nandjou of the forum she chose, which is in this
country. That is especially true given the critically important
role that her young children may play at trial as witnesses, as
they alone are in a position to testify about the conditions at
the pool at the moment of the drownings.
Nor does the relevant precedent indicate otherwise. It
is evident that this case stands in stark contrast to those in
which we have affirmed a district court's dismissal of an action
based on forum non conveniens. For example, in Howe v. Goldcorp
Investments, the principal analogue on which the defendants rely,
we concluded that dismissal was not an abuse of discretion where
"most of the evidence [was] in Canada and most of the witnesses
[were] in Canada." 946 F.2d at 951. Indeed, except for the
plaintiff, "no resident of the United States 'ha[d] knowledge
relevant to the matters alleged in the amended complaint.'" Id.
(internal citation omitted). We found that the action had "little
to do with Massachusetts or any other jurisdiction in the United
States" but had "a great deal to do with Canada." Id. at 952-53.
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 The same cannot be said here. As we have just cataloged,
the most critical witnesses reside in the United States, and there
is no reason to discount the potential import of the several third-
party, non-Canadian witnesses who were present at the pool in the
drownings' immediate aftermath or the numerous Massachusetts-based
witnesses whose live testimony bears on damages. Moreover, while
the defendants have estimated that twenty-five non-party witnesses
reside in Canada, they have not explained why live testimony from
all of those witnesses is critical. See Iragorri, 203 F.3d at 16.
Thus, we conclude that the District Court "clearly erred in
weighing" the private interests involved, Adelson, 510 F.3d at 52,
and that the balance of public and private interest factors did
not warrant dismissal.
III.
The defendants contend that we may affirm the District
Court's dismissal of Nandjou's claims on the alternative ground
that that there is no personal jurisdiction over them. See John
Hancock Life Ins. Co. v. Abbott Lab'ys, 863 F.3d 23, 34 (1st Cir.
2017) ("Although [the appellee] has not filed a cross-appeal, we
have jurisdiction to consider a prevailing party's alternative
arguments in defense of a judgment where, as here, the arguments
were made below."). We conclude, however, that the District Court
did not err in ruling otherwise, Nandjou, 2019 WL 2918043, at *7,
- 24 -
and thus that we may not affirm its dismissal of Nandjou's claim
on this independent ground.
A.
The District Court applied the "prima facie" standard to
assess the sufficiency of Nandjou's showing as to personal
jurisdiction. Id. at *1. Accordingly, the District Court
evaluated "whether the plaintiff has proffered evidence which, if
credited, is sufficient to support findings of all facts essential
to personal jurisdiction." Id. (quoting Bluetarp Fin., Inc. v.
Matrix Constr. Co., 709 F.3d 72, 79 (1st Cir. 2013)). Both parties
accept that the application of this standard was appropriate. We
thus "must accept the plaintiff's (properly documented)
evidentiary proffers as true," Foster-Miller, Inc. v. Babcock &
Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995), and "construe them
in the light most congenial to the plaintiff's jurisdictional
claim," Mass. Sch. of L. at Andover, Inc. v. Am. Bar Ass'n, 142
F.3d 26, 34 (1st Cir. 1998). We review the District Court's
application of that standard to the record de novo. Adelson, 510
F.3d at 48.
Because the District Court's subject-matter jurisdiction
in this case was premised on diversity of citizenship, we act as
the "functional equivalent" of a state court sitting in
Massachusetts for the purpose of assessing personal jurisdiction.
Kuan Chen v. U.S. Sports Acad., Inc., 956 F.3d 45, 54 (1st Cir.
- 25 -
2020) (quoting Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 34 (1st Cir. 2016)). We therefore must evaluate
whether the exercise of personal jurisdiction over the defendants
complies with both the requirements of the Massachusetts long-arm
statute and the Due Process Clause of the Fourteenth Amendment to
the U.S. Constitution. Id.
The defendants do not argue that the long-arm statute
imposes any limit that the Federal Constitution does not. As any
argument to the contrary is waived, we "train the lens of our
inquiry exclusively on the federal constitutional analysis." Id.
For there to be personal jurisdiction over a defendant
as to a claim, the Due Process Clause requires that the defendant
must "have sufficient minimum contacts with the state, such that
'maintenance of the suit does not offend "traditional notions of
fair play and substantial justice."'" Adelson, 510 F.3d at 49
(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Such contacts must be sufficient to sustain a theory of either
general or specific jurisdiction. See Kuan Chen, 956 F.3d at 55.
In view of Daimler AG v. Bauman, 571 U.S. 117 (2014), however,
Nandjou pursues a theory of specific personal jurisdiction only.
Thus, for each claim and each defendant, she must make a tripartite
showing: that the claim is sufficiently related to the defendant's
contacts with Massachusetts, that the defendant's contacts with
Massachusetts constitute purposeful availment of the protections
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and privileges of conducting business in the Commonwealth, and
that the exercise of jurisdiction there is reasonable. Nowak, 94
F.3d at 712-13. The District Court concluded that, under the prima
facie standard, Nandjou met the bar on all three fronts for all of
her claims against all of the defendants. See Nandjou, 2019 WL
2918043, at *7.
B.
We start with the claims Nandjou brings against the
Marriott defendants. The defendants do not attempt to distinguish
between the claims against them in developing their only argument
in support of their assertion that the District Court erred in
finding that Nandjou made the requisite showing as to personal
jurisdiction over them. That argument concerns the showing Nandjou
makes as to the relatedness prong. Moreover, in pressing that
argument, the defendants contend only that the District Court erred
in finding that their marketing activities in Massachusetts
suffice to show that their in-Massachusetts contacts satisfy the
relatedness requirement. Thus, we address only that portion of
the District Court's analysis in evaluating whether there is
personal jurisdiction as to the Marriott defendants. See Marek v.
Rhode Island, 702 F.3d 650, 655 (1st Cir. 2012) (explaining that
"issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived" (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).
- 27 -
The Marriott defendants emphasize that Nandjou's claims
against them focus on duties that Nandjou contends that they
breached through their actions (or failures to act) in Canada, not
Massachusetts. They also emphasize that the Massachusetts-based
activity on which the District Court relied in finding that it had
personal jurisdiction over them consists of a marketing campaign
that, even if it induced Nandjou's family to stay at the hotel in
Montreal and to use its pool, did not itself play anything more
than a but-for role in causing the drownings themselves. The
Marriott defendants thus contend that those Massachusetts-based
contacts have too attenuated a connection to the tortious conduct
alleged to satisfy the due process-based, personal jurisdiction
requirement that in-forum contacts must be related to the claim at
issue.
We may skip over the fact that among the claims that
Nandjou has brought against the Marriott defendants is a claim for
vicarious liability, which depends in significant part on the
nature of the franchisor-franchisee relationship rather than
solely a breach of duty that occurred only in Canada. For, even
if we accept the premise on which the defendants' assertion of
error by the District Court rests, and thus focus our analysis
exclusively on the connection between the Marriott defendants'
marketing activity in Massachusetts and the claims against them
that seek to hold them liable for their own breaches of duty rather
- 28 -
than vicariously for the breach of duty by Reluxicorp, we are not
persuaded by the contention that Nandjou failed to make the
requisite showing of relatedness.
The Marriott defendants are correct that, in Nowak v.
Tak How Investments, we noted that a "proximate cause standard
better comports with the relatedness inquiry" with respect to tort
claims than a pure "'but for' requirement," which "has in itself
no limiting principle." 94 F.3d at 715. For that reason, the
Marriott defendants contend that the fact that their marketing
activities in Massachusetts were at most a but-for cause of the
drownings -- rather than a proximate one -- precludes us from
treating those activities as the kind of contacts that could
satisfy the relatedness requirement.
But, as the Marriott defendants themselves acknowledge,
we explained in Nowak that "strict adherence to a proximate cause
standard in all circumstances is unnecessarily restrictive" and
that "the first prong of the jurisdictional tripartite test is not
as rigid" as the proximate cause inquiry in the tort context. Id.
Thus, even if the Marriott defendants are right that their direct-
mail campaign, in and of itself, did not proximately cause the
drownings, that fact alone would not end our inquiry with respect
to whether that campaign could nonetheless suffice to satisfy the
relatedness requirement.
- 29 -
The Marriott defendants do not dispute that Nowak
recognized that where a corporation "directly targets residents in
an ongoing effort to further a business relationship, and achieves
its purpose, it may not necessarily be unreasonable to subject
that corporation to forum jurisdiction when the efforts lead to a
tortious result," id., even though they may not have proximately
caused it. But, the Marriott defendants emphasize, Nowak poses no
problem for them because that case involved a much more extensive
course of dealing between the plaintiff (also the family member of
a patron of a foreign hotel who drowned in its pool) and the
defendant than this one does. They thus argue that Nowak may not
be extended to facts like those before us here, and they warn that
doing so would effectively place any hotel that advertises on the
internet at risk of being sued in any forum, anywhere in the
country, where a guest is domiciled and books a reservation in
response to that online marketing.
Nowak made clear, however, that the precise facts of
that case do not necessarily define the outer limits of the
circumstances in which a defendant's actions in the forum
jurisdiction to cultivate a plaintiff's business may be said to be
related to a resulting tort claim even though those actions did
not proximately cause the tort. See id. at 716. It expressly
stated that "[i]t may be that other kinds of fact patterns will be
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found to meet the basic factor of foreseeability, but we have no
occasion here to pronounce more broadly." Id.
In this case, the Marriott defendants' activity that
provides the basis for the District Court's conclusion that the
relatedness requirement has been met does not consist of their
merely having posted an advertisement for the Canadian hotel on
the internet for all the world to see. Instead, that activity,
the District Court supportably found, see Nandjou, 2019 WL 2918043,
at *2, *5, consists of the Marriott defendants deliberately having
cultivated business from Nandjou and her family in Massachusetts
by sending direct mail to her home in the Commonwealth that
promoted the very hotel in which the drownings occurred and that
even described that hotel's pool.
Nor is this a case in which such a direct in-forum-state
attempt to cultivate the plaintiff's business played no role in
the plaintiff's decision to enter into the business relationship
that grounds her tort claims. The record suffices to provide
support for Nandjou's claims that, through those materials, the
Marriott defendants induced her family to stay at that hotel.
We thus conclude that, while the nature of the business
cultivation in Massachusetts by the Marriott defendants differed
from the nature of the business cultivation in the forum state by
the defendants in Nowak, the District Court correctly held that,
per Nowak, Marriott's contacts with Massachusetts were
- 31 -
sufficiently related to Nandjou's claims against the Marriott
defendants to support the exercise of specific jurisdiction over
them. See Nandjou, 2019 WL 2918043, at *5-6. As a result, there
is no lack of personal jurisdiction over the Marriott defendants.
C.
That brings us, then, to the question of whether there
is personal jurisdiction over Reluxicorp. In contending that there
is not, Reluxicorp does not deny that, "[f]or purposes of personal
jurisdiction, the actions of an agent may be attributed to the
principal." Daynard v. Ness, Motley, Loadholt, Richardson & Poole,
P.A., 290 F.3d 42, 55 (1st Cir. 2002). It thus accepts that the
Marriott defendants' contacts in Massachusetts could be imputed to
it if those defendants were acting as its agents when engaged in
those contacts. But, Reluxicorp contends that, even still, there
is no personal jurisdiction over it.
Reluxicorp argues that is the case in part because it
contends that the Marriott defendants' contacts with Massachusetts
through their marketing efforts were too attenuated from the
alleged tortious conduct to support a finding of relatedness even
as to the Marriott defendants. But, as we have just explained,
there is no force to that contention, and so, we must address
Reluxicorp's additional assertion that the Marriott defendants'
marketing activities in Massachusetts may not be attributed to it.
- 32 -
Here, Reluxicorp first contends that Nandjou has failed
adequately to establish that the Marriott defendants were acting
as Reluxicorp's agents in conducting the direct-mail marketing
campaign which led them to send brochures to Nandjou's home in
Massachusetts advertising the Montreal hotel and highlighting its
pool. Reluxicorp does not contest Nandjou's assertion that the
hotel had entered into a franchise agreement with the Marriott
defendants that obligated Marriott to undertake marketing efforts
on behalf of Reluxicorp in return for payment and which
specifically identified those efforts as potentially including
direct mail. Reluxicorp stresses instead that it did not dictate
-- and did not have the contractual right to dictate -- any of the
specifics of the marketing methods that the Marriott defendants
would deploy. Thus, Reluxicorp contends, the Marriott defendants
were not acting as Reluxicorp's agents in marketing the Montreal
hotel to Nandjou's family as they did, because Reluxicorp lacked
control over the marketing methods chosen by them.
As support for this assertion, Reluxicorp relies on
Theos & Sons, Inc. v. Mack Trucks, Inc., 729 N.E.2d 1113 (Mass.
2000), which holds that, under Massachusetts law, an agency
relationship requires that "the agent is to act on behalf and for
the benefit of the principal, and subject to the principal's
control." Id. at 1119. Reluxicorp's assertion on this score
appears to depend on the implicit legal premise that Massachusetts
- 33 -
agency law is determinative in this case of whether an agency
relationship exists for purposes of the inquiry that the Due
Process Clause requires us to undertake in determining personal
jurisdiction. Or, perhaps Reluxicorp means to contend that Theos
& Sons may be understood to set forth a view of the law of agency
that is widely shared.
But, even assuming that Theos & Sons is dispositive of
whether, for purposes of personal jurisdiction, the Marriott
defendants were Reluxicorp's agents in carrying out their
Massachusetts-based marketing, Reluxicorp acknowledges that the
minimum contacts of one defendant in a forum state can be
attributed to another even if there is no actual agency
relationship between them in place. In particular, it accepts
that such imputation of those contacts can be proper under
principles of agency by estoppel. See Daynard, 290 F.3d at 56-
57. And Reluxicorp also accepts that, under those principles, a
"person who is not otherwise liable as a party to a transaction
purported to be done on his account[] is nevertheless subject to
liability to persons who have changed their positions because of
their belief that the transaction was entered into by or for him,
if" either "he intentionally or carelessly caused such belief" or
if he, "knowing of such belief and that others might change their
positions because of it, . . . did not take reasonable steps to
- 34 -
notify them of the facts." Id. at 56 (quoting Restatement (Second)
of Agency § 8(B) (1958)).
Thus, if Nandjou and her husband acted in reliance on
the notion that the direct-mail campaign conducted by the Marriott
defendants was undertaken by Reluxicorp, even if Reluxicorp did
not specifically authorize it, that contact with Massachusetts
potentially can be attributed to Reluxicorp for the purposes of
evaluating whether personal jurisdiction exists over Reluxicorp in
this suit. In other words, to show that the Marriott defendants'
direct-mail-based contacts in Massachusetts are also Reluxicorp's,
Nandjou need only demonstrate -- to the degree required under the
prima facie standard -- that Reluxicorp either intentionally or
carelessly led her and her husband to believe that it was
responsible for the advertisements sent to their home promoting
the hotel in Montreal or, at least, that it failed to take
reasonable steps to correct their perception that it was.
As the District Court rightly determined, see Nandjou,
2019 WL 2918043, at *4, the record supportably shows that Nandjou
and her husband reasonably understood the advertisements that they
received at their home from the Marriott defendants to be a
solicitation of their business from a Marriott-owned and Marriott-
operated property in Montreal. See id. And, the record also
suffices to show, they changed their position based on that
perception -- Nandjou's husband made a reservation to stay there
- 35 -
at least in part because the couple determined from the brochures
that the Montreal hotel "was an attractive Marriott hotel that
[they] would like to visit, and that the hotel and its amenities,
including its pool, were clean and safe."
Moreover, the record supportably shows, Reluxicorp's own
conduct contributed to Nandjou and her husband's understanding.
Reluxicorp held out its hotel in Montreal as being a Marriott
property by identifying itself with the descriptor "The Residence
Inn by Marriott" and through its use of Marriott branding and
signage at its physical location. And Reluxicorp does not develop
any argument that it did not know that its actions in that regard
could lead prospective customers to believe that it was operated
by Marriott or that it made any effort to ensure that the
advertising that it contractually authorized the Marriott
defendants to undertake on its behalf (which expressly was
understood to include direct mailings) clarified that it was an
independent entity. Indeed, so far as the record reveals,
Reluxicorp benefited from affiliating itself with Marriott by
virtue of the goodwill associated with that brand.
Reluxicorp does argue that Nandjou's family could not
have believed that the marketing materials were sent on its behalf
by Marriott because the family did not realize that Reluxicorp and
Marriott were separate businesses. But, that fact, even if true,
hardly helps Reluxicorp's position. The allegation that Nandjou
- 36 -
and her husband understood the Montreal hotel and Reluxicorp to be
a single entity only reinforces our conclusion that the record
supportably shows that the couple believed the advertising
campaign was undertaken "by or for" the Montreal hotel and that
Reluxicorp's own actions facilitated that understanding. See
Daynard, 290 F.3d at 56 (quoting Restatement (Second) of Agency
§ 8(B) (1958)).
As a result, even if this case cannot properly be
considered one in which Reluxicorp "intentionally . . . caused
[the] belief" that it was entreating Nandjou and her husband to
visit, Reluxicorp certainly "did not take reasonable steps" to
disabuse the couple of that notion. See id. (quoting Restatement
(Second) of Agency § 8(B) (1958)). We therefore conclude that
Marriott's direct-mail efforts can properly be evaluated as
Reluxicorp's own contacts with Massachusetts for the purpose of
assessing personal jurisdiction.
Thus, we hold that the District Court properly concluded
that the relatedness requirement was met as to Reluxicorp based on
the Marriott defendants' direct-mail marketing of the Canadian
hotel to Nandjou and her husband at their home in Massachusetts,
just as we hold it properly concluded that requirement was met
based on those same activities as to the Marriott defendants
themselves. And, that being so, we conclude that there is no basis
for reversing the District Court's finding of personal
- 37 -
jurisdiction over Reluxicorp, just as there is no basis for doing
so as to its finding of personal jurisdiction over the Marriott
defendants, as Reluxicorp offers no other reason that could supply
a basis for our concluding otherwise.
IV.
We affirm the judgment of the District Court denying the
defendants' motion to dismiss for lack of personal jurisdiction
and we reverse the judgment of the District Court granting the
defendants' motion to dismiss on forum non conveniens grounds.
Each party shall bear their own costs."
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