United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND
COMPLAINT AND DENYING DEFENDANT'S MOTION TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Marriott
International's Motion to Dismiss (Dkt. #4) and Plaintiff
Jane Johnson's subsequent Motion for Leave to File a
Second Amended Complaint to add additional parties (Dkt. #7).
Plaintiff also requests this Court relate the filing date of
the second Amended Complaint to the filing date of the
Original Complaint, December 7, 2016. Dkt. #7.
Court has determined that oral argument in unnecessary. For
the reasons set forth below, the Court GRANTS Plaintiff's
Motion for Leave to Amend her Complaint (Dkt. #7), rendering
Defendant's Motion to Dismiss (Dkt. #4) moot.
Jane Johnson was a guest at the JW Marriott Hotel Bangkok
while visiting her son stationed in Thailand. Dkt. #7-1 at
¶ 1. Plaintiff has regularly stayed at Marriott hotels,
and chose to stay at the JW Marriott in Bangkok based on her
experience with Marriott hotels and reviews of its service.
Id. at ¶ 14-16. Plaintiff alleges that the JW
Marriott logo is prominently displayed on both the outside
and inside of the hotel where she stayed in Bangkok,
appearing on everything from the guest registration card to
napkins in the dining room. Dkt. #10 at ¶ 5.
December 8, 2015, Plaintiff entered the hotel through the
mezzanine level. Dkt. #7-1 at ¶ 21. Plaintiff tripped
over the raised portion of the walkway and fell. Id.
Plaintiff was taken to a Bangkok hospital and diagnosed with
a “comminuted impact fracture of the right humeral head
and neck.” Id. at ¶ 22. Determining she
was unfit to take her scheduled flight back to the United
States that day, doctors sent Plaintiff for emergency
surgery. Id. Plaintiff was not discharged until
three days later, and has since suffered additional
complications resulting from the surgery. Id.
Marriott International states via declaration that “at
the time of the Incident, the Hotel was and remains owned by
The Erawan Group Public Company Limited
(“Erawan”).” Dkt. #5 at 2. Erawan is a
company organized and existing under the laws of Thailand
with its principal place of business in Bangkok, Thailand.
further states that at the time of the incident, a wholly
owned subsidiary of Marriott International, Luxury Hotels
& Resorts Limited (“LHR”), managed and
operated the JW Marriott Bangkok Hotel. Id. LHR is
also a company organized and existing under the laws of
Thailand, with its principal place of business in Bangkok,
Plaintiff's accident, an insurance investigator sent
Plaintiff an email (Subject: Incident at the JW Marriott
Bangkok on 8 December 2015), identified herself as Ratchdawan
Polyudhapoom, and gathered information about Plaintiff's
injuries. Dkt. #10 at ¶ 10. Plaintiff believed Ms.
Polyudhapoom represented Marriott hotels. Id. Ms.
Polyudhapoom later told Plaintiff's counsel that she
worked for McClarens, a company hired to investigate the
incident. Dkt. #7 at 4. Ms. Polyudhapoom referred
Plaintiff's counsel to the American International Group
(“AIG”), the insurance company handling
Plaintiff's claim. Id. Over a period of months,
Plaintiff's counsel had several telephone and email
exchanges with Denise Wasserman, an AIG claims adjuster for
Plaintiff's case. AIG asked Plaintiff's counsel to
send settlement letters. Dkt. #9 at ¶ 3. Plaintiff's
claim “was always identified as
‘Marriott/Johnson/Claim no. N00912256.'” Dkt.
#7 at 5. Neither Ms. Polyudhapoom nor Ms. Wasserman ever
indicated that the JW Marriott Hotel was not owned by
Marriott International, Inc. Id. at 4-5.
Plaintiff filed her First Amended Complaint, Plaintiff and
her counsel believed Marriott International was the owner and
operator of JW Marriott Bangkok. Dkts. #7 at 5, #9 at ¶
7 and #10 at ¶ 5.
February 7, 2017, Defendant Marriott International filed a
three-pronged Motion To Dismiss under Rules 12(b)(6),
12(b)(7), and the doctrine of forum non conveniens.
See Dkt. #4 at 1. Regarding its 12(b)(6) motion,
Defendant argues that because it is neither the owner of the
JW Marriott Bangkok nor the entity responsible for managing
or operating the hotel, it did not owe Plaintiff a duty of
care as a matter of law. Dkt. #4 at 6-7. Regarding its motion
under Rule 12(b)(7), Defendant argues that Plaintiff's
failure to join LHR, the wholly-owned Marriott subsidiary,
prejudices Defendant and warrants dismissal. Defendant
Marriott alternatively requests dismissal based on the
doctrine of forum non conveniens, arguing Thailand
is the appropriate forum for adjudicating Plaintiff's
claims. Dkt. #4 at 9.
responds: (1) Defendant Marriott may be liable based on
theories of “apparent agency” and “alter
ego”; (2) Defendant's 12(b)(7) argument is
unpersuasive because plaintiffs are not required to sue all
potential tortfeasors at once, nor has Defendant demonstrated
that the Court could not accord complete relief without
additional parties; and (3) Thailand does not provide an
acceptable forum for Plaintiff's case, so dismissal under
forum non conveniens is inappropriate. Dkt. 11.
then filed the instant Motion seeking leave to file a Second
Amended Complaint to both add Erawan and LHR as defendants
and to relate the filing date back to the filing date of the
original complaint, December 7, 2016, for statute of
limitations purposes. See Dkt. #7.
response, Defendant first argues that adding Erawan and LHR
would be futile because this Court lacks personal
jurisdiction for the would-be defendants. Dkt. #14 at 4.
Defendant next characterizes Plaintiff's proposed second
amended complaint as “attempting to plead additional
theories of liability against Marriott, Erawan, and LHR
(collectively, “Defendants”), ” see
Id. at 2-3, but it has not argued that it would be
prejudiced by these “different” legal theories.
Rather, it argues that Plaintiff has failed to present
sufficient evidence to support a theory of Defendant's
liability. Id. at 6-7. Finally, Defendant has not
argued against allowing Plaintiff's amended complaint to
relate back to the date of the filing of the original
complaint. Id. For the reasons set forth below, the
Court grants Plaintiff's motion both to amend her
complaint and to relate the causes of action against the new
parties back to the filing date of the original complaint.