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If you are injured in a foreign country can you sue in the United States? Probably not, under the doctrine of Forum Non-Conveniens

Americans who travel abroad are sometimes injured in accidents, just like at home. Perhaps the most common accident is a slip and fall at a hotel or resort. Upon returning to the United States for treatment, the injured party may call a lawyer and ask if her or she can sue in the United States. The answer is probably no.

A good illustration is Goldstein v. Hard Rock Cafe International (USA) 2012 WL 13035390 (U.S.D.C., M.D., Florida). In Hard Rock plaintiffs stayed as guests at a Hard Rock Hotel and Casino in Punta Cana. Plaintiff alleged that while walking from the guest room to the resort's casino, he slipped and fell on a walkway that was pooled with water. As a result of the fall, the plaintiff suffered a severe injury requiring a total knee replacement. The hotel is part of various hotels and resources that are owned by or partnered with Hard Rock Café International (USA). Plaintiff, a resident of New Jersey, sued the Hard Rock Café International (USA) a Florida corporation, in Florida.

G. Kendall Sharp, Senior US District Court Judge, dismissed the case on the grounds of forum non conveniens, which he described as follows:

"Under the federal doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear a case, and when the trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to the plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administration and legal problems the case may, in an exercise of its sound discretion, dismiss the case even if jurisdiction is in a proper venue or established." (Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994) [quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)].

The Judge based his decision on a number of factors. Hard Rock submitted an affidavit from an attorney licensed in the Dominican Republic who explained that it is a democratic nation with a multitiered judicial system that provides for appellate review. The Dominican attorney also asserted that plaintiffs have a remedy in tort under Dominican law and there is a court there that could exercise subject matter jurisdiction over the case and personal jurisdiction over the defendants and in which venue would be proper.

The court then enumerated various "private interest factors." These factors were the relative ease of access to proof, the availability of witnesses, the fact that Dominican law would probably apply, and that Dominican law would have to be translated from Spanish for the case to be handled in the United States.

The Judge also addressed the issue of unwilling witnesses who might not be compelled to come from the Dominican Republic to testify. The court also referred to the need to view the premises although the court did not find that to be too much of a factor. There are also other practical problems such as that persons who should have testified or be impleaded into the action would be beyond the jurisdiction of the U.S. court.

There are also public interest factors which include local interests and local controversies, familiarity with governing law, problems with the conflict of laws and application of foreign laws and the burden on jurors in the plaintiff's chosen forum.

The court did not dismiss without conditions, including requiring the defendants to submit to the jurisdiction of the court in the Dominican Republic, make witnesses available and not plead a statute of limitation defense or any jurisdictional bar in the courts of the Dominican Republic. The law on this subject is nationwide. For example, California where in Loya v. Starwood Hotels and Resorts Worldwide, Inc., 583 F.3d 656 (9th Cir. 2009) the court affirmed the dismissal on forum non conveniens grounds based on an accident that occurred in Baha, California Sur Mexico.

Do these decisions forever close the door? Not necessarily. State courts may not apply such a strict view of forum non conveniens. But any Federal Court will apply the same factors to the case in virtually any suit involving an accident in a foreign country.

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