United States District Court, D. Colorado
SOO CHONG LEE and MYUNG HWA YOON, as parents and next friends of H.L., a deceased minor, Plaintiffs,
YOUNG LIFE, a Texas nonprofit corporation, Defendant.
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss for
Forum Non Conveniens [Docket No. 15] filed by
defendant Young Life.
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.
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.
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.
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,
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.
forum non conveniens assessment involves two
[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
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).
Availability of Alternative Forum
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.
Adequacy of Alternative Forum
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).
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),
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
the Court finds that defendant has met its burden and that
British Columbia is an available and adequate alternative
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 ...