Lee v. Young Life

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Motion to Dismiss for Forum Non Conveniens [Docket No. 15] filed by defendant Young Life.

         I. BACKGROUND ^[1]

         This action arises from the death of a minor at defendant’s Malibu Club, a summer camp located on a remote island in British Columbia, Canada. Docket No. 1 at 5, ¶ 28. The minor, H.L., was the eldest son of plaintiffs Soo Chong Lee and Myung Hwa Yoon. Id. at 3, ¶ 11. All three are citizens of South Korea. Id. at 1, ¶ 1. H.L. attended Challis High School in Challis, Idaho, during the 2015-16 school year as part of an exchange program. Id. at 3, ¶ 16.

         Defendant Young Life is a corporation that operates summer camps. Id. At 2, 4, ¶¶ 3, 20. Defendant is a Texas corporation with its headquarters located in Colorado Springs, Colorado. Id. at 2, ¶ 3. Defendant owned and operated Malibu Club as a summer camp for high schoolers. Id. at 3-4, ¶ 17. With permission from both plaintiffs and his host family, H.L. decided to attend a one-week summer camp at Malibu Club from June 4-10, 2016. Id. at 4, ¶ 25.

         One of Malibu Club’s features was a beach volleyball court next to rapidly flowing water. Id. at 6, ¶ 31. On June 8, 2016, H.L. was playing beach volleyball with other campers when the volleyball was hit out of bounds. Id. at 8, ¶¶ 52, 54. Not knowing whether the ball had landed on the rocks or in the water, the other campers decided that H.L. should retrieve the ball. Id., ¶¶ 55, 57. When he went to retrieve the ball, H.L. slipped on the rocks and fell into the water. Id. at 9, ¶ 60. H.L. could not swim. Id. at 6, ¶ 32. H.L. went under and was carried off by the fast moving water. Id. at 9, ¶ 61. Two days later, Canadian authorities recovered H.L.’s body. Id., ¶ 66.

         On June 7, 2018, plaintiffs filed this lawsuit. Id. Plaintiffs assert three claims against defendant: (1) wrongful death resulting from negligence; (2) violation of the Colorado Premises Liability Act, Colo. Rev. Stat. § 13-21-115; and (3) respondeat superior. Id. at 9-13, ¶¶ 69-89.

         II. ANALYSIS

         A federal court sitting in diversity applies the federal doctrine of forum non conveniens in deciding a motion to dismiss in favor of a foreign forum. Rivendell Forest Prods., Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 992 (10th Cir. 1993). The “doctrine of forum non conveniens proceed[s] from [the] premise [that] . . . [i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum” when trial in another country would be more appropriate. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722 (1996) (emphasis omitted). “The central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 605 (10th Cir. 1998) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981)) (brackets omitted). The forum non conveniens determination is committed to the sound discretion of the trial court. Piper Aircraft, 454 U.S. at 257. While “normally there is a strong presumption in favor of hearing the case in the plaintiff’s chosen forum,” Gschwind, 161 F.3d at 606, this assumption is “much less reasonable” in the case of a foreign plaintiff. Piper Aircraft, 454 U.S. at 256.

         The forum non conveniens assessment involves two threshold questions:

[F]irst, whether there is an adequate alternative forum in which the defendant is amenable to process, and second, whether foreign law applies. If the answer to either of these questions is no, the forum non conveniens doctrine is inapplicable. If, however, the answer to both questions is yes, the court goes on to weigh the private and public interests bearing on the forum non conveniens decision.

Id. at 605-06 (internal citations omitted). The defendant bears the burden of proof on all elements of the forum non conveniens analysis. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 423 (2007).

         A. Threshold Determinations

         1. Availability of Alternative Forum

         The issue of whether an alternative foreign forum exists is a two-part inquiry involving availability and adequacy. The availability requirement is ordinarily met when a defendant agrees to be amenable to process in the foreign forum. Gschwind, 161 F.3d at 606 (citing Piper Aircraft, 454 U.S. at 254 n.22). Here, defendant states that it is amenable to process in British Columbia, and plaintiffs do not dispute that British Columbia is an available forum for this litigation. See Docket No. 15 at 4. Thus, the Court finds that British Columbia is an available forum for this litigation.

         2. Adequacy of Alternative Forum

         Since the Court finds that British Columbia is an available forum for the purposes of this action, the Court will turn to the issue of its adequacy. Adequacy does not require that the alternative forum provide the same relief as an American court. See Gschwind, 161 F.3d at 607. “Instead, the alternative forum is not inadequate unless its remedy is ‘so clearly inadequate that it is no remedy at all.’” Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1174 (10th Cir. 2009) (citation, quotation, and ellipses omitted).

         Defendant states that an adequate remedy is available for plaintiffs under British Columbia law. Docket No. 15 at 5-6. Plaintiffs seek to recover damages for H.L.’s death, with their three claims alleging three different theories of defendant’s liability (common law negligence, the Colorado premises liability statute, and respondeat superior). See Docket No. 1 at 9-13, ¶¶ 69-89. Defendant argues that two British Columbia statutes provide a similar remedy. The Wills, Estates and Succession Act provides that “the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.” Wills, Estates and Succession Act, S.B.C. 2009, c.13 150(2). Additionally, the Family Compensation Act allows for surviving members of a deceased person’s family to be compensated for the value of lost household assistance and expected future financial benefits. Family Compensation Act, R.S.B.C. 1996, c. 26. The Washington Court of Appeals has concluded that these statutes offer a plaintiff an adequate alternative forum in British Columbia in an action for wrongful death. See Klotz v. Dehkhoda, 141 P.3d 67, 69 (Wash. App. 2006). Although plaintiffs argue that British Columbia is not an adequate alternative forum because their claims would be barred by the applicable statute of limitations, see Docket No. 20 at 3-6, defendant agrees, as a condition of dismissal, not to oppose an action filed by plaintiffs in British Columbia on statute of limitations grounds. See Docket No. 24 at 2. Defendant also identifies British Columbia law indicating that parties are allowed to waive a statute of limitations defense, as the act “only arises when pled as a defence to a claim.” Id. at 2-3 (citing FORCOMP Forestry Consulting Ltd. v. British Columbia, 2017 BCSC 1157 (Chambers), para. 11).

         Plaintiffs argue that, because the British Columbia Civil Rules presumptively only allow plaintiffs to depose one person, they would be “hamstrung” in their attempts to prosecute the case in British Columbia. Docket No. 20 at 6 (citing British Columbia Civil Rules, Rule 7-2(5)(a) (also at Docket No. 20-3 at 2-3)). However, this argument does not address whether the forum will provide plaintiffs with an adequate remedy. Rather, it goes to the private interest factors, such as the relative ease of access to sources of proof and availability of compulsory process for compelling attendance of witnesses, that the Court weighs if the threshold questions are met. See Gschwind, 161 F.3d at 606.

         In sum, the Court finds that defendant has met its burden and that British Columbia is an available and adequate alternative forum.

         3. Applicable Law

         Having determined that there is an adequate alternative forum, the Court now turns to the question of whether British Columbia or Colorado law will govern this dispute. Id. at 608 (“[C]hoice of law is a threshold determination for application of forum non conveniens.”). If domestic law is applicable, the forum non conveniens doctrine is inapplicable. Rivendell Forest Prods., 2 F.3d at 993 n.4; Needham v. Phillips Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10th Cir. 1983). A federal court sitting in diversity applies the choice of law rules of the state in which the district is located. Yoder v. Honeywell Inc., 104 F.3d ...