Johnson v. Marriott International Inc.

          ORDER GRANTING PLAINTIFF'S MOTION TO AMEND COMPLAINT AND DENYING DEFENDANT'S MOTION TO DISMISS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         The 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.

         II. BACKGROUND

         A. Factual Summary

         Plaintiff 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.

         On 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.

         Defendant 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. Id.

         Defendant 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, Thailand. Id.

         After 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.

         B. Procedural Summary

         When 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.

         On 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.^[1] 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.

         Plaintiff 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.

         Plaintiff 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.

         In 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.

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