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finding that the plaintiff's claims of inconvenience in pursuing a lawsuit in Jamaica, inability to afford an attorney to litigate her claims in Jamaica, and the unavailability of a jury trial in Jamaica do not rise to the level of "compelling considerations of remedial justice" required by article 3549
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CIVIL ACTION NO. 02-3250 SECTION "C"
December 22, 2003
ORDER AND REASONS
This matter comes before the Court on motion to dismiss under F.R.C.P. 12(b)(2) and 12(b)(6) filed by Sunset Beach Resort Spa, L.L.C., erroneously named as Sunset Beach Resort Spa ("Sunset Beach"). Having considered the record, the memoranda of counsel, and the law, the Court has determined that dismissal is appropriate for the following reasons.
The plaintiff, Iris Williams ("Williams") claims to have been injured at defendant's facility in Jamaica on July 1, 2001. Williams filed this diversity suit on October 28, 2002. Sunset Beach moves for dismissal based on lack of personal jurisdiction and failure to state a claim.
A complaint is subject to Rule 12(b)(6) dismissal if it appears beyond a doubt that a plaintiff can prove no set of facts in support of her claim that would entitle the plaintiff to relief.Conley v. Gibson, 355 U.S. 41, 45 (1957), Rubenstein v. Collins, 20 F.3d 160 (5th Cir. 1994). In deciding a notion to dismiss, the court takes all factual allegations contained in the complaint as true and resolves any ambiguities or doubts regarding sufficiency of the claim in favor of the plaintiff. Scheur v. Rhodes, 416 U.S. 232, 236 (1974); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). A court need not, however, accept as true allegations that are conclusory in nature.Kaiser Aluminim Chem. Sales, Inc, v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
According to the complaint, more than one year passed between the alleged accident and the filing of the complaint. The parties agree that the Court's analysis begins with reference to the forum's law. The plaintiff apparently concedes that: her claim is prescribed under La. Civ. Code art. 3492 , but argues that Jamaican law applies to the merits of the claim under 3542, and that La. Civ. Code art. 3549(1) provides a relevant exception:
La Civ. Code art. 3492 provides: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained."
La. Civ. Code art. 3542 provides in relevant part: "[A]n issue of delictual or quasi-delictual obligations is governed by the law of the state whose policies would be most seriously impaired if its laws were not applied to that issue."
When the substantive law of this state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies.
When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
(1) If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice.
(2) If the action is not barred under the law of this state, the action shall be maintained unless it would be barred in the state whose law is applicable to the merits and maintenance of the action in this state is not warranted by the policies of this state and its relationship to the parties or the dispute nor by any compelling considerations of remedial justice.
(Emphasis added). In making this argument, the plaintiff argues that "compelling considerations of remedial justice" exist because she "cannot be expected to litigate her claims in Jamaica where there exists no right to a jury or a contingency arrangement," rendering the alternative forum "unavailable." (Rec. Doc. 17, p. 7).
According to Comment (e) to Article 3549, subparagraph (1) begins by reaffirming the rule that actions prescribed under Louisiana law are subject to dismissal. "The rationale for the rule in these cases is that the application of the shorter prescriptive period of the forum promotes the forum's interest in judicial economy and protects the integrity of its judicial system."
There are three problems with the plaintiff's argument that her claim is subject to an exception under Article 3549. First, it appears from the plaintiff's sole focus on the "compelling considerations of remedial justice" requirement, that she concedes that her claim is prescribed under Jamaican law. In any event, the plaintiff's failure to identify a saving Jamaican statute of limitations carries legal consequence. There is solid authority for the proposition that ". . . where the parties have not proved the substance of the foreign state's law to the Court, `Louisiana courts may presume that the foreign law is the same as the law of the forum, absent a showing to the contrary.'" Trans-World (Alloys) Ltd. v. Chodiev, 1995 WL 214754 at *2 (E.D.La.) (J. Clement), quoting Belanger v. Keydril, 596 F. Supp. 823, 827 (E.D.La. 1984).
Next, the plaintiff's argument ignores the fact that the exception set forth in Article 3549(1) is conjunctive in nature: the plaintiff must prove that her claim would not be barred under Jamaican law and that maintenance is warranted by "compelling considerations of remedial justice." Comment (e) to Article 3549 provides: "The exception is based on two grounds which both must be shown to exist before it may be utilized." By failing to allege or show that her claim is not barred under Jamaican law, the exception becomes unavailable.
Finally, the plaintiff has not pled facts sufficient to show the existence of "compelling considerations of remedial justice" present here. Even assuming that the plaintiff, who was injured while on vacation in Jamaica, is without the means to afford an attorney in Jamaica because a contingency fee arrangement is unavailable there, and assuming that the unavailability of a jury trial is somehow established or relevant, these considerations alone do not rise to the level of "compelling considerations of remedial justice" required by the article.
The Court agrees that the relevant circumstances of the plaintiff's financial circumstances would need to be established by means other than a motion to dismiss. Although the plaintiff has not established the first prong required by the exception based on the pleadings, the Court assumes that the facts alleged in the opposition as to the second prong are properly pled for purposes of this motion.
In this regard, the plaintiff's reliance on Smith v. Odeco (UK), Inc., 615 So.2d 407 (La.App. 4th Cir. 1993) is misplaced. InSmith, the law of the substantive law of the foreign forumdid apply and provided for a prescriptive period that did not bar the claim for purposes of Article 3549. The Louisiana forum was the only one where suit could be maintained against all defendants, causing the court to find that "compelling considerations of remedial justice" existed. That court did not find that the foreign forum was "unavailable" for any reason relevant to this plaintiff's argument.
Similarly, reliance on Lugones v. Sandals Resorts, Inc., 875 F. Supp. 821 (S.D.Fla. 1995) is unavailing. In that case, the court v/as considering a motion for dismissal based on forum nan conveniens and discussed the availability of a jury trial and a contingency fee contract in the alternative forum in conjunction with its consideration of the adequacy of the alternative forum and private interest factors. The case does not stand for the proposition that these considerations are relevant or conclusive to the determination whether maintenance of a suit in Louisiana is warranted by "compelling considerations of remedial justice" for purposes of the exceptions set forth in Article 3549.
In conclusion, based on the factual allegations contained in the complaint, the plaintiff has failed to state a claim under either Louisiana or Jamaican law. Accordingly,
IT IS ORDERED that the motion to dismiss under F.R.C.P. 12(b)(2) and 12(b)(6) filed by Sunset Beach Resort Spa, L.L.C., erroneously named as Sunset Beach Resort Spa is PARTIALLY GRANTED and PARTIALLY DISMISSED as moot.
In light of its ruling, the Court does not address the issue of personal jurisdiction.