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Clanton v. Wyndham Destinations Inc.

United States District Court, W.D. Washington, Tacoma

December 13, 2019



          Ronald B. Leighton United States District Judge


         THIS MATTER is before the Court on Defendants Wyndham Destination, Inc., Wyndham Vacation Ownership, Inc., and Wyndham Resort Development Corporation's Motion to Dismiss on the grounds of forum non conveniens. Dkt # 12. This case arises from Plaintiff Catherine Clanton's slip and fall while on vacation at a Wyndham Resort in Mexico.

         Clanton attended a Wyndham time share presentation in Washington and she joined the program in 2008. She made an on-line reservation to stay one of Wyndham's properties, WorldMark La Paloma Resort in Rosarito, Mexico, and traveled to Mexico to stay at the Resort in September 2017.

         Clanton slipped and fell down a set of wet stairs. Her friend and travelling companion, Pam Gilbert, witnessed the fall and took pictures of the scene. There was a “wet floor” sign, but it was not readily visible. After the fall, Clanton returned to her room and reported the incident to the front desk. The next day, the Resort staff took her to a private hospital near the Resort to briefly meet with a doctor about her injuries.

         Clanton traveled back to the United States the next day. She stopped at a California hospital and then returned to Washington. Since then, she has received treatment from fourteen different doctors here. In July 2019 Clanton sued Wyndham in this Court for negligence under the laws of both Washington and Baja California, Mexico.

         Wyndham seeks dismissal on forum non conveniens, arguing “the convenience of the parties and the ends of justice would be better served if the action were brought and tried in Mexico.” As a threshold issue, it first argues that Mexico is an adequate alternative forum because it provides Clanton a remedy against the Resort and its employees. Wyndham also contends that a valid forum selection clause exists, meaning that the parties' agreed that Mexico is an adequate forum.[1] It then argues that litigating in this forum is unreasonable because the accident occurred in Mexico and most of the physical evidence and witnesses are in Mexico, making litigating here costly. Wyndham also argues that Mexico has the greater interest in this case because the Resort conducts business exclusively in Mexico.

         Clanton argues that Wyndham failed to meet its burden of showing that litigating in this forum is so burdensome and oppressive as to outweigh this forum's convenience. Clanton argues that Mexico is not an adequate alternative forum because it provides her no remedy: Wyndham cannot be held liable under Mexican law and any claims against the Resort are time-barred because the accident happened more than two years ago. She argues that this forum is more convenient for all parties because the parties reside or do business in Washington, most of the witnesses and relevant evidence are in Washington, documents not in Washington are readily accessible through electronic transmission, and the costs associated with litigating in Mexico are much greater. Clanton also argues that Washington has a greater connection to this case because it has a significant interest in protecting Clanton, a Washington resident, and in regulating the conduct of Wyndham because it does business in Washington.


         To prevail on a forum non conveniens motion to dismiss, “a defendant bears the burden of demonstrating an adequate alternative forum, and that the balance of private and public interest factors favors dismissal.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011). The doctrine of forum non conveniens allows a court to dismiss a case outright when a foreign or state forum would be substantially more convenient. Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 60 (2013). Forum non conveniens is an “exceptional tool to be employed sparingly.” Bos. Telecommunications Grp., Inc. v. Wood, 588 F.3d 1201, 1206 (9th Cir. 2009) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)).

         A. Adequate Alternative Forum

         Wyndham argues that Mexico is adequate even though Clanton will not be able to recover from it there. Clanton argues that Mexico is not adequate because Wyndham has not submitted to the jurisdiction of Mexico, Clanton cannot recover from Wyndham there, and any tort claims against the Resort (not a party here) are time-barred under Mexican law.

         “The first requirement for a forum non conveniens dismissal is that an adequate alternative forum is available to the plaintiff.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir. 2001). An alternative forum is adequate if: “(1) the defendant is amenable to process there; and (2) the other jurisdiction offers a satisfactory remedy.” Ranza v. Nike, Inc., 793 F.3d 1059, 1077 (9th Cir. 2015) (citing Carijano, 643 F.3d at 1225). Dismissal is not appropriate where “where the remedy provided is so clearly inadequate or unsatisfactory, that it is no remedy at all.” Id. (quoting Carijano, 643 F.3d at 1226). But an alternative forum is not inadequate merely because “the law, or the remedy afforded, is less favorable.” Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 666 (9th Cir.2009) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247 (1981)).

         Mexico is not an adequate alternative forum in this case. Mexico has been found to be an adequate forum in some cases, specifically because the defendants agreed to “submit to the jurisdiction[] and waive any statute of limitations defenses[, ]” the plaintiff could bring a tort-based suit there, and “Mexican courts would afford some remedy.” See, e.g., Loya, 583 F.3d at 664. Wyndham has not consented to Mexico's jurisdiction and has not shown that it is amenable to service of process there. See Dkt # 14 at 8. Wyndham also has not shown how Clanton would be able to obtain any remedy in this case if it were to be litigated in Mexico. Wyndham argues that while Clanton would likely be unable to sue it under Mexican law, [2] Mexico still affords her a remedy because she could sue the Resort and its employees. But this is not an argument that this forum is not convenient enough for Wyndham; ...

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