Clay v. Hilton Worldwide Holdings

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

ANDREW MAXWELL CLAY, et CASE NO. C18-1262JLR al., ORDER ON DEFENDANTS’ Plaintiffs, MOTION FOR SUMMARY v. JUDGMENT

HILTON WORLDWIDE HOLDINGS, INC., et al., Defendants.

Before the court is Defendants Hilton Worldwide Holdings, Inc. (“Hilton Worldwide”), Hilton Management Services (CIS) LLC (“HMS”), Hilton International Holdings (“Hilton International”), and Hilton Hospitality, LLC’s (“Hilton Hospitality”) (collectively, “Moving Defendants”) motion for summary judgment based on res judicata, collateral estoppel, forum non conveniens, and international comity. (See MSJ (Dkt. # 35).) Plaintiffs Andrew Maxwell Clay and Tonja Clay (collectively, “the Clays”) oppose the motion. (See Resp. (Dkt. # 37).) The court has reviewed the motion, the parties’ submissions in support of and in opposition to the motion, the relevant portions

of the record, and the applicable law. Being fully advised,1 the court GRANTS Moving Defendants’ motion and enters summary judgment in favor of Moving Defendants and against the Clays. This lawsuit arises from an accident that occurred on September 16, 2015, in Phuket, Thailand. (Clay Decl. (Dkt. # 39) ¶¶ 5-8.) At the time, Mr. Clay was a product

marketing manager for non-party Fluke Biomedical (“Fluke”), located in Everett, Washington. (Id. ¶ 3.) Fluke planned a large regional sales meeting at the Hilton Phuket Arcadia Resort & Spa (“Hilton Arcadia”) in Phuket, Thailand. (Id. ¶¶ 3-4.) Mr. Clay attended the meeting and was a scheduled presenter. (Id. ¶ 4.) During his presentation, Mr. Clay walked across the stage toward a screen on which his presentation slides

appeared. (Id. ¶ 6.) The stage was about five feet above the floor of conference room where Mr. Clay was speaking. (See id. ¶ 5.) Unbeknownst to Mr. Clay, in setting up the stage, the hotel staff left a gap between the stage and the screen, which Mr. Clay did not see. (Id. ¶ 7.) As he walked toward the screen to point out a feature that appeared on one 1 “A party desiring oral argument shall so indicate by including the words “ORAL ARGUMENT REQUESTED” in the caption of its motion or responsive memorandum.” See Local Rules W.D. Wash. LCR 7(b)(4). The Clays do not request oral argument. (See Resp. at 1.) Moving Defendants request oral argument in a praecipe filed the day after their motion for summary judgment. (See Praecipe (Dkt. # 36).) Even assuming Defendants’ request complies with the court’s local rules, the court does not consider oral argument to be helpful to its disposition of Defendants’ motion, and therefore, denies Defendants’ request. See Local Rules W.D. Wash. LCR 7(b)(4) (“Unless otherwise ordered by the court, all motions will be decided by the court without oral argument.”). of his slides, he fell into the gap at the back of the stage and suffered injuries. (Id. ¶¶ 8-14, Ex. A (attaching a video depicting the incident).)

Hilton Arcadia is owned by Defendant P.P.C. Enterprise Co., Ltd. (“PPC”) and managed by Defendant Hilton International (Thailand) Co. LTD (“Hilton Thailand”) (collectively, “Thai Defendants”).2 (See Sidhu Decl. (Dkt. # 35-3) ¶ 5; see also Compl. (Dkt. # 1) ¶¶ 2.7-2.8; MSJ at 2.) On September 16, 2016, Mr. Clay initiated a lawsuit in Thailand against Thai Defendants (“the Thai Action”). (Missen Decl. (Dkt. # 35-2) ¶ 2; Clay Decl. ¶ 15; Resp. at 4 (“A lawsuit was filed in Thailand against the local owner of

the Hilton Arcadia and against the local management company.”).) Mr. Clay’s complaint in the Thai Action asserted a claim for wrongful or negligent acts by Thai Defendants and sought compensation for his injuries. (Missen Decl. ¶ 3, Ex. A (attaching English translation of the Thai court’s March 22, 2018, judgment concerning Mr. Clay’s Thai Action, which states that Mr. Clay’s Thai complaint alleged that Thai Defendants “had

negligently set up the stage”).) The Thai Action went to trial, but Mr. Clay did not appear at the trial because his medical providers had not yet cleared him for international travel. (See id. ¶ 3, Ex. A; see also Clay Decl. ¶¶ 15-18.) Mr. Clay’s Thai attorneys asked the Thai court to continue the trial until Mr. Clay was able to travel and present testimony, but the Thai court declined

2 In addition to Moving Defendants, the Clays also sued Thai Defendants, both of which are Thai corporations. (See Compl. ¶¶ 2.7-2.8.) On December 21, 2018, the court granted the Clays’ motion asking the court to sign and seal for delivery two letters rogatory to facilitate service of process on Thai Defendants. (See 12/21/18 Order (Dkt. # 15).) However, to date, the Clays have filed no evidence that they have served process on Thai Defendants; nor have Thai Defendants appeared in this action. (See generally Dkt.) to do so. (Clay Decl. ¶ 17.) As a result, Mr. Clay presented evidence solely in written form at the Thai trial. (See Krupica Decl. (Dkt. # 42) ¶ 10.) Although Thai Defendants

presented testimony (see Missen Decl. ¶ 3, Ex. A at 2), Mr. Clay’s Thai attorneys did not call any witnesses or cross examine any witnesses during the Thai Action (see Krupica Decl. ¶ 9; see also Missen Decl ¶ 3, Ex. A at 2 (“The remaining damages were uncertain and there was no evidence supporting the injury suffered by [Mr. Clay].”)). Following the trial, on March 22, 2018, the Thai court issued the following judgment:

The next issue to be considered is whether [Thai] Defendants and [Fluke South East Asia Pte. Ltd. (“Fluke SE Asia”)] committed wrongful acts against [Mr. Clay] or not. [Mr. Clay] claimed that [Thai] Defendants had negligently committed wrongful acts against [him], and the Court granted permission for [Fluke SE Asia] to join the proceedings to jointly be held responsible for [Mr. Clay’s] claims. When [Thai] Defendants and [Fluke SE Asia] denied the claims, [Mr. Clay] shall bear the burden of proof on how the act committed by [Thai] Defendants and [Fluke SE Asia] was the wrongful act against [Mr. Clay]. Since [Mr. Clay] did not adduce any evidences during the taking of evidence, it cannot be concluded that [Thai] Defendants and [Fluke SE Asia] committed wrongful acts against [Mr. Clay] and thus shall not be liable for the damages claimed in the [com]plaint. The remaining issues shall not be further considered since it will not affect the judgment. The Court renders its judgment to dismiss the case; [Mr. Clay] was to be liable for the lawyer fees of [Thai] Defendants and [Fluke SE Asia] which is determined to be THB 100,000 per party. (Missen Decl. ¶ 3, Ex. A at 3 (alterations added).) Mr. Clay filed the present suit in the Western District of Washington on August 27, 2018 (“the Washington Action”). (See Compl.) On January 13, 2020, Moving Defendants filed a motion for summary judgment asserting the Clays’ claims are barred or their complaint must be dismissed based on (1) res judicata, (2) collateral estoppel, (3) forum non conveniens, and (4) international comity. (See generally MSJ.) The Clays

oppose Moving Defendants’ motion. (See generally Resp.) The court now considers Moving Defendants’ motion. A. Summary Judgment Standard Summary judgment is proper when the pleadings, discovery, and other materials on file, including any affidavits or declarations, show that “there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir. 2005). To satisfy its burden at summary judgment, a moving party without the burden of persuasion “must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have

enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). “If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes

demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (internal citations and quotation marks omitted) (citing, among other cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106

(1986)). B. Res Judicata Moving Defendants argue that the Thai Action and the Thai court’s judgment should have preclusive effect on the Clays’ ability to litigate the same claims in this court. (MSJ at 6-9.) Res judicata “provides that a final judgment on the merits of an action precludes the parties from re-litigating all issues connected with the action that

were or could have been raised in that action.” Rein v. Providian Fin. Corp., 270 F.3d 895, 898-99 (9th Cir. 2001). The first issue the court must resolve is whose law governs the asserted claim preclusive or res judicata effect of the Thai judgment. “In . . . federal diversity of citizen actions, the recognition and enforcement of foreign judgments is governed by state law.”

In re Birting Fisheries, Inc., 300 B.R. 489, 502 n.13 (B.A.P. 9th Cir. 2003) (citing British Midland Airways Ltd. v. Int’l Travel, Inc., 497 F.d 869, 871 n.2 (9th Cir. 1974) (applying Washington law to the enforcement of an English judgment in a diversity action in district court)); see also Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir. 1996) (ruling in a diversity action that, when analyzing the defendant’s res judicata

argument concerning an Australian judgment, “state, not federal, law . . . governs the effect to be given foreign judgments”). Thus, the court’s task here is to determine whether Washington would recognize the Thai judgment, and if so, whether the Thai judgment precludes the Clays’ suit. See Phillips, 77 F.3d at 359. Neither party asserts that Washington would not recognize the Thai judgment. (See generally MSJ; Resp.) Washington has adopted the Uniform Foreign-Country

Money Judgments Recognition Act, RCW ch. 6.40A (“the Act”), “which provides for the efficient recognition of money judgments from outside the United States,” Max Telecom OOD v. Juni Am., Inc., No. C15-2006-TSZ, 2016 WL 7724590, at *1 (W.D. Wash. Apr. 26, 2016) (recognizing Bulgarian judgment under the Act). The Act applies to all foreign-country judgments that: (i) grant or deny recovery of a sum of money; and (ii) are final, conclusive, and enforceable in the country where rendered.3 RCW

6.40A.020(1). As the party seeking recognition of the Thai judgment, Moving Defendants bear the burden of establishing the applicability of the Act. RCW 6.40A.020(3). The Thai judgment both denies Mr. Clay the recovery of any damages for his alleged injuries and grants Thai Defendants and non-party Fluke SE Asia an award of

attorney’s fees. (See Missen Decl ¶ 3, Ex. A at 3 (concluding that the defendants “shall not be liable for the damages as claimed in the [com]plaint,” and stating that Mr. Clay “was to be liable for the lawyer fees” of the defendants).) Thus, the court concludes that the Act’s first requirement—that the judgment grant or deny the recovery of a sum of money—is met. With respect to the second element, Moving Defendants provide an

// 3 In addition, the Act does not apply to judgments that are for (1) taxes, (2) a fine or other penalty, or (3) divorce, support, or maintenance or otherwise rendered in connection with domestic relations. RCW 6.40A.020(2). No party argues that the judgment relates to any of these elements (see generally MSJ; Resp.); nor does the judgment itself so indicate (see Missen Decl. ¶ 3, Ex. A). English translation of the Thai judgment, which states that the court “renders its judgment to dismiss the case.” (Id.) Further, nothing about the judgment itself indicates that it is

anything less than a final, conclusive, and enforceable resolution of the parties’ dispute in Thailand (see generally id.); nor do the Clays assert otherwise (see generally Resp.; see also Krupica Decl. ¶ 15 (“In Thailand, a party may not relitigate the same issue already decided in a previous Thai court.”)).4 Accordingly, the court concludes that the Act’s second requirement—that the judgment is final, conclusive, and enforceable—is also met. Because Moving Defendants have established a prima facie case for recognition of

the Thai judgment, the burden shifts to the Clays to establish an exception to such recognition, see Max Telecom OOD, 2016 WL 7724590, at *1 (citing RCW 6.40A.030(4)), which the Clays have not attempted to do, see generally Resp. The court, therefore, concludes that Washington would recognize the Thai judgment under the Act. “A recognized ‘foreign-country judgment is . . . [enforceable in the same manner and to

the same extent as a judgment rendered in this state].’” Shanghai Commercial Bank Ltd. v. Kung Da Chang, 404 P.3d 62, 65 (Wash. 2017) (citing RCW 6.40A.060(2)) (alterations in original). Next, the court “considers whether this recognition would extend to finding that the [foreign] action forbids the instant suit under the principles of claim preclusion or res

judicata.” See Phillips, 77 F.3d at 360. In Washington, “[f]iling two separate lawsuits based on the same event—claim splitting—is precluded[.]” Ensley v. Pitcher, 222 P.3d

4 Indeed, the Clays do not challenge the accuracy or authenticity of Moving Defendants’ English translation of the Thai judgment. (See generally Resp.) 99, 102 (Wash. Ct. App. 2009). Under Washington’s res judicata doctrine, all issues that might have been raised and determined in the first suit are precluded in the second. See

Karlberg v. Otten, 280 P.3d 1123, 1130 (Wash. Ct. App. 2012) (explaining that the “general rule is that if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing an action for the residue of the claim.”) (internal quotations omitted); see also Feminist Women's Health Ctr. v. Codispoti, 63 F.3d 863, 868 (9th Cir.1995) (applying Washington law and stating that “[a]ll issues which might have been raised and determined are precluded”); Loveridge v. Fred Meyer,

Inc., 887 P.2d 898, 900 (Wash. 1995). Under Washington law, a prior judgment will bar litigation of a subsequent claim if the prior judgment has a concurrence of identity with the subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made.5 Gold Star Resorts, Inc. v. Futurewise, 222 P.3d 791, 798 (Wash. 2009). The court considers each

of these elements in turn. 1. Identity of Subject Matter The first element to consider in applying res judicata is whether there is a concurrence of identity in the subject matter of the two lawsuits. See id. Both the Thai Action and the Washington Action stem from Mr. Clay’s personal injury claim arising

from his fall at the Hilton Arcadia. (Compare Compl. with Missen Decl ¶ 3, Ex. A.)

5 In all cases, res judicata applies under Washington law only if there is a final judgment on the merits. Karlberg, 280 P.3d at 1130. As discussed above, the court has already determined that the judgment in the Thai Action meets this requirement. Indeed, in the Thai Action, Mr. Clay alleged that the Thai Defendants “negligently set up the stage” by “not arrang[ing] the stage to lean against the wall,” but rather “prepar[ing]

such stage to be not less than 1.5-meter[s] [with] a gap between the stage and the screen of the projector.” (Missen Decl. ¶ 3, Ex. A at 1.) In the Washington Action, the Clays allege that Foreign and Moving Defendants “failed in their duties to [Mr. Clay] as a business invitee when they set up the stage and screen with a gap between them, which was not likely to be noticed by a person on the stage.” (Compl. ¶ 5.4) Despite these similarities, the Clays nevertheless argue that the subject matter of

the two suits differs because “[o]ne of the claims [in the Washington Action] against Hilton Worldwide is that they [sic] enticed Fluke to hold conventions at the Hilton Arcadia by promoting a level of safety and attention to detail that was not true.” (Resp. at 13.) However, these factual allegations against Hilton Worldwide (see Compl. ¶¶ 4.4-4.5) still relate to the Clays’ negligence claim against both Moving Defendants and

Thai Defendants in the Washington Action for the injuries Mr. Clay allegedly incurred when he fell at the Hilton Arcadia Hotel (see id. ¶¶ 5.1-5.5) and do not constitute a separate “claim” that alters the subject matter of the Washington Action. Indeed, although Mr. Clay worked for Fluke, Fluke is not a party to the Washington Action. (See generally Compl.) The Clays’ complaint in the Washington Action alleges similar facts

and seeks to redress the same basic wrong—the injuries that Mr. Clay allegedly incurred when he fell from the stage at the Hilton Arcadia. Thus, the court concludes that the Thai Action and Washington Action have a concurrence of subject matter identity. // 2. Identity of Claims or Causes of Action The second element is concurrence of identity between the causes of action in the

two suits. Gold Star Resorts, Inc., 222 P.3d at 798. In its March 22, 2018, judgment, the Thai court describes the alleged wrongful act Mr. Clay asserted in the Thai Action as follows: [Thai Defendants] had obligations to jointly provide a meeting venue, prepare the stage for educational lecturing, [and] arrange the projector system together with a large screen at the back of the stage. . . . However, [Thai Defendants] had negligently set up the stage without exercising such care as might be expected from a person under such condition[s] and circumstances and [Thai Defendants] could exercise such care but did not do so sufficiently. In other words, [Thai Defendants] did not arrange the stage to lean against the wall at the back of the room. Also, [Thai Defendants] prepared the stage to be not less than 1.5-meter[s] and had a gap between the stage and the screen of the projector. On the other hand, the ordinary persons who encounter such circumstances would push the stage to be attached to the wall at the back of the room in order to close the gap between the stage and the wall, and the stage should not be higher than 1-meter. Furthermore, there should be noticeable signs or marks so that the speaker could notice such gap easily. In addition, [Thai Defendants] should place some equipment to support the weight between the gaps which would prevent the speaker from falling into. . . . The acts of [Thai Defendants] thus caused damages to [Mr. Clay], which is considered as a commission of wrongful act against [Mr. Clay].

(Missen Decl. ¶ 3, Ex. A at 2-3 (alterations added).) Ultimately, the Thai court determined that “[s]ince [Mr. Clay] did not adduce any evidence during the taking of evidence, it cannot be concluded that [Thai Defendants] committed wrongful acts against [Mr. Clay].” (Id. at 3.) Nevertheless, the “wrongful act” described by the Thai court is an alleged act or acts of negligence on the part of Thai Defendants. (See id. at 2-3.) In the Washington Action, the Clays entitle their cause of action as follows: “Defendants’ conduct in creating and maintaining a dangerous condition at the hotel was negligent and wrongful.” (Compl. at 9 (bolding omitted).) Thus, on their face, the causes of action in the two suits have a concurrence of identity. Gold Star Resorts, Inc., 222 P.3d at 798.

The Clays nevertheless argue that “Thailand’s Wrongful Act is not the same as a negligence claim based on premises liability.” (See Resp. at 13; see also Missen Decl. ¶ 3, Ex. A at 2 (setting forth the disputed issue as whether Thai Defendants “committed wrongful acts against [Mr. Clay] or not”).) The Clays also submit testimony from Mr. Clay’s Thai attorney who attests that there is “no specific equivalent” in Thai law giving rise to an enhanced duty of care by a business owner to a business invitee and that a Thai

court may take into account “a host of factors” in determining “whether a defendant has engaged in a wrongful act . . . which may be different than American courts.” (Krupica Decl. ¶¶ 17-18.) In determining whether two suits have an identity of causes of action, Washington courts consider four flexible factors: (1) whether the rights or interests established in the

prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same rights; and (4) whether the two suits arise out of the same transactional nucleus of facts. Rains v. State, 674 P.2d 165, 168 (Wash. 1983); Energy Nw. v. Hartje, 199 P.3d 1043, 1048 (Wash. Ct. App. 2009). “These four

factors are analytical tools; it is not necessary that all four factors be present to bar the claim.” Ensley, 222 P.3d at 105. Even if the Thai court describes Mr. Clay’s cause of action in somewhat different terms than a Washington court might, the foregoing factors weigh in favor of finding an identity of the causes of action. First, the interests of Thai Defendants in the Thai court’s finding of no liability would be impaired by a second prosecution subjecting Thai

Defendants to the potential of liability based on the same underlying incident. Second, no party disputes that the overlap in relevant evidence between the two suits is substantial if not complete. With respect to the third factor, Mr. Clay argues that he has greater rights against Defendants in Washington than in Thailand due to the case authority surrounding premises liability in Washington. (See Resp. at 13.) However, given the manner in

which the Thai court describes the issue to be decided, there is substantial overlap between the duties Defendants owe to Mr. Clay in the two forums. Thus, this factor—to the extent it weighs against a finding of identity in the causes of action—does not weigh significantly so. The fourth factor—whether the two suits arise out of the same nucleus of facts—is

the most important. Déjà Vu-Everett-Fed. Way, Inc. v. City of Fed. Way, 979 P.2d 464, 468 (Wash. Ct. App. 1999). The nucleus of facts is identical in both cases. As discussed above, both suits arise entirely out of Mr. Clay’s accident when he fell off the stage at Hilton Arcadia. (Compare Compl. with Missen Decl. ¶ 3, Ex. A); see supra § III.B.1. Thus, the court concludes that the relevant factors weigh heavily in favor of finding that

there is a concurrence of identity between the causes of action in the two suits. See Gold Star Resorts, Inc., 222 P.3d at 798. //

// 3. Identity of Persons or Parties and the Quality of Parties “The fourth element of res judicata simply requires a determination of which

parties in the second suit are bound by the judgment in the first suit.” Ensley, 222 P.3d at 106. “The general rule is that a judgment is res judicata, and therefore binding, on all parties to the original litigation, plus all persons in privity with such parties.” D. Ende, 14A Wash. Prac., Civil Procedure § 35:27 (3d ed. 2018). Mr. Clay and Thai Defendants were present in the Thai Action; and these parties are also present in the Washington Action. (Compare Compl. ¶¶ 2.1, 7-2.8, with Missen Decl. ¶ 3, Ex. A at 1.) Moving

Defendants, however, appear only in the Washington Action. (Compare Compl. ¶¶ 2.3-2.6, with Missen Decl. ¶ 3, Ex. A.) However, the Clays allege that Thai Defendants are “actual, equitable, and apparent agent[s]” of Moving Defendants. (Compl. ¶¶ 2.7-2.8.) Under Washington law, “a principal’s liability may be discharged if the judgment in favor of the agent is on the merits.” Glover v. Tacoma Gen. Hosp., 658

P.2d 1230, 1237 (Wash. 1983), abrogated by Crown Controls, Inc. v. Smiley, 756 P.2d 717 (Wash. 1988) (citing Vern J. Oja & Assocs. v. Wash. Park Towers, Inc., 569 P.2d 1141 (Wash. 1977)). Further, courts in Washington have found privity where the parties to successive lawsuits share a principal-agent relationship. See Kuhlman v. Thomas, 897 P.2d 365, 368-69 (Wash. Ct. App. 1995). Thus, the court concludes that there is identity

of the parties in the Thai and Washington Actions for purposes of applying the doctrine of res judicata. The Clays acknowledge the foregoing principles but nevertheless argue that the court should deny Moving Defendants’ motion because Moving Defendants “have submitted no documentation, affidavits or other evidence establishing an agency relationship.” (Resp. at 14.) Here, however, the Clays have alleged these facts in their

complaint (see Compl. ¶¶ 2.7-2.8), and they may not now deny them to avoid the consequences of res judicata. Finally, the “quality of the persons” element requires that the parties to both action be in an adversarial posture with one another. See Bordeaux v. Ingersoll Rand Co., 429 P.2d 207, 211 (Wash. 1967). That is the case here. Therefore, the court finds that this element is satisfied. See Karlberg, 280 P.3d at 1130.

In sum, the court concludes that the doctrine of res judicata applies to the Clays’ Washington Action, and accordingly, the court GRANTS Moving Defendants’ motion and enters summary judgment in their favor on the Clays’ claims. C. Collateral Estoppel Moving Defendants also ask that the court grant summary judgment in their favor

based on the doctrine of collateral estoppel or issue preclusion. (MSJ at 9-12.) Specifically, Moving Defendants argue that the issues of Thai Defendants’ negligence and Mr. Clay’s entitlement to compensation have been litigated on the merits in the Thai Action and those determinations prevent their re-litigation in the Washington Action. (See id.) As with res judicata, because the court’s jurisdiction in this case is grounded in

diversity, the court applies the law of the state in which it sits to determine whether collateral estoppel applies to the issues raised here. See Jacobs v. CBS Broad., Inc., 291 F.3d 1173, 1177 (9th Cir. 2002). // Collateral estoppel bars the re-litigation of issues that were decided in a previous proceeding involving the same parties. Sprague v. Spokane Valley Fire Dep’t, 409 P.3d

160, 183 (Wash. 2018). Under Washington law, the court considers four factors when deciding whether collateral estoppel applies: (1) whether the issue decided in the prior action was identical to the issue presented in the second action; (2) whether the prior action ended in a final judgment on the merits; (3) whether the party to be estopped was a party or in privity with a party in the prior action; and (4) whether the application of the doctrine will work an injustice. See Sprague v. Spokane Valley Fire Dep’t, 409 P.3d 160,

183 (Wash. 2018) (citing Shoemaker v. City of Bremerton, 745 P.2d 858, 860 (Wash. 1987)). In addition, the issues to be precluded must have been actually litigated and necessarily decided in the first proceeding. Id. Further, the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issues in the first proceeding. Id.

The Clays challenge only the first and fourth elements of collateral estoppel— whether the issues in the two actions are identical and whether application of the doctrine will work an injustice.6 (See Resp. at 7 (“In the present case, it is the first requirement (identity of issues) and the fourth requirement (not work an injustice) that are at issue.”).) The court will consider each of these elements in turn.

//

6 Because the Clays do not challenge the second and third elements of collateral estoppel, the court does not consider them here. The court notes, however, that its analysis of these issues in the context of its application of res judicata to this case would be largely applicable in the context of its application of collateral estoppel as well. See supra §§ III.B., III.B.3. 1. Identity of the Issues The Clays argue that “[a]lthough there are similarities between Thailand’s

Wrongful Act statute and a [United States] negligence claim, they are applied in such vastly different ways that there is not an identity of issues.” (Id. at 8.) To support their argument, the Clays describe the differences they and their Thai lawyers see between a negligence claim in Thailand and one brought in the United States. (See id. at 8-10.) For example, the Clays note that there is no provision in the Thai code that describes the enhanced duties that a landlord might have in the United States to a business invitee. (See

id. at 8.) The problem with the Clays argument is that this court will not be applying law generally from the United States. Indeed, “a federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice-of-law rules.” Dees v. Billy, 357 F. App’x 813, 815 (9th Cir. 2009) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Thus, the court looks to Washington law to

determine which law to apply to the Clays’ tort action against both Thai Defendants and Moving Defendants. As discussed below, under Washington’s choice of law rules, this court would apply Thailand’s law to the issue of the Thai Defendants’ liability. Accordingly, the court concludes that the issues in the Thai Action and the Washington Action concerning the Thai Defendants’ liability and Mr. Clay’s entitlement to

compensation are identical. First, Washington requires a valid conflict of law issue to engage in a choice of law discussion. Rice v. Dow Chem. Co., 875 P.2d 1213, 1216 (Wash. 1994). The Clays maintain that there are conflicts between the relevant law in Thailand and Washington law (see Resp. at 8-9); thus, this requirement is met. Next, if a valid conflict of law exists, a court applying Washington law settles choice-of-law issues following a two-step

process. Zenaida-Garcia v. Recovery Sys. Tech., 115 P.3d 1017, 1019-20 (Wash. Ct. App. 2005). First, the court analyzes the contacts the parties and the underlying claim have to the states, including: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. Id. If the contacts are evenly

balanced, the second step of the analysis involves an evaluation of the interests and public policies of the concerned states to determine which state has the greater interest in determination of the particular issue. Id. at 1020. In personal injury cases, there is a presumption that the law of the state where the injury occurred applies, unless another state has a greater interest in determining a particular issue. Martin v. Goodyear Rubber

& Tire Co., 61 P.3d 1196, 1199 (Wash. Ct. App. 2003). Here, the accident that caused Mr. Clay’s injury occurred in Thailand. (See Compl. ¶¶ 1.3-1.4.) As noted above, in cases of personal injury, the location of injury plays an important role in selecting the applicable law. Augello v. Bobcat Co., No. CV-12-354-LRS, 2013 WL 1209936, at *2 (E.D. Wash. Mar. 25, 2013) (citing

Restatement (Second) of Conflict of Laws § 145 (1971)) (concluding that this factor weighed in favor of applying Idaho law when the accident causing the injury at issue occurred there). Thus, the court concludes that the first factor favors application of Thai law. The second factor is the place where the conduct causing Mr. Clay’s alleged injury occurred. See Zenaida-Garcia, 115 P.3d at 1019. Mr. Clay alleges that the staff at the

Hilton Arcadia in Phuket, Thailand constructed an elevated stage with a gap between the screen and the rear of the stage, which he fell through injuring himself. (See Compl. ¶¶ 1.3-1.4, 4.6-4.10.) Accordingly, the court concludes that this factor also favors the application of Thai law to the Clays’ negligence claim in the Washington Action. The third factor—the domicile, residence, nationality, place of incorporation, and place of business of the parties—does not favor the application of any particular state’s

law. See Zenaida-Garcia, 115 P.3d at 1020. The Clays are residents of Washington. (Compl. ¶¶ 2.1-22.) Hilton Worldwide, HMS, and Hilton International are Delaware corporations. (Id. ¶¶ 2.3-2.4, 2.6.) Hilton Worldwide has its principal place of business in Virginia. (OSC Resp. (Dkt. # 4) at 2.) Hilton Hospitality is a Nevada corporation. (Compl. ¶ 2.5.) None of these corporate entities have their principal places of business in

Washington. (OSC Resp. at 3.) Finally, Thai Defendants are both Thai corporations. (Compl. ¶¶ 2.7-2.8.) Thus, this factor is neutral and does not favor the application of the law of either Washington or Thailand to the Clays’ negligence claim in the Washington Action. The last factor is the place where the relationship, if any, between the parties is

centered. Zenaida-Garcia, 115 P.3d at 1020. “When there is a relationship between the plaintiff and the defendant and when the injury was caused by an act done in the course of the relationship, the place where the relationship is centered is another contact to be considered.” See Restatement (Second) of Conflict of Laws § 145 cmt. (1971). Here, Mr. Clay was a guest at the Hilton Arcadia at the time of his accident. The Clays allege that Hilton Arcadia is owned and operated by the Thai Defendants, who, in turn, the

Clays allege are Moving Defendants’ agents. (See Compl. ¶¶ 2-7-2.8.) Thus, there was a relationship between Mr. Clay and Thai Defendants at the time of his accident and that relationship was centered in Thailand. Accordingly, the court concludes that this factor favors application of Thai law to the Clays’ negligence claim as well. In sum, three of the four relevant factors weigh in favor of the application of Thai law to the Clays’ negligence claim. The fourth factor is neutral. Because these factors

are not evenly balance, but rather weigh heavily in favor of the application of Thai law, the court need not engage in an evaluation of the interests and public polices of the concerned states. See Zenaida-Garcia, 115 P.3d at 1020. Accordingly, the court concludes that were the Clays’ Washington Action to proceed, the court would apply Thai law to the Clays’ negligence claim. Thus, the issues in the Thai Action and the

Washington Action concerning the Thai Defendants’ liability for negligence and Mr. Clay’s entitlement to compensation are identical. The court, therefore, concludes that this factor weighs in favor of the application of collateral estoppel to the Clay’s negligence claim. 2. Interests of Justice

The Clays also argue that the court should not apply the collateral estoppel doctrine to their claims because application of the doctrine would work an injustice. (Resp. at 11.) They argue that Mr. Clay did not have a full and fair opportunity to appear and litigate his claim in Thailand. (Id.) Specifically, they maintain that Mr. Clay did not have his day in court because, at the time of trial in the Thai Action, he was unable to travel due to his injuries and his doctor’s recommendation against prolonged air travel.

(See id.; see also Clay Decl. ¶¶ 15-18; Benirschke Decl. (Dkt. # 38) ¶ 8.) In determining whether application of collateral estoppel would work an injustice, the court should “focus on whether the parties to the earlier adjudication were afforded a full and fair opportunity to litigate their claim in a neutral forum.”7 Nielson By & Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 956 P.2d 312, 317 (Wash. 1998). In the context of collateral estoppel, “‘[i]njustice means more than that the prior decision

was wrong. When faced with a choice between achieving finality and correcting an erroneous result, [the court] generally opt[s] for finality.” State Farm Mut. Auto. Ins. Co. v. Avery, 57 P.3d 300, 304 (Wash. Ct. App. 2002) (citing In re Marriage of Brown, 653 P.2d 602, 603-04 (Wash. 1982)). Here, the Clays primary complaint is that the Thai court denied Mr. Clay’s motion

for a continuance, and so, he could not be present at trial in the Thai Action. (See Resp. at 11.) Yet, the fact that the Clays disagree with the Thai court’s determination

7 At least one Washington court has articulated a four-factor test to determine whether application of collateral estoppel works an injustice. See State Farm Mut. Auto. Ins. Co. v. Avery, 57 P.3d 300, 304-06 (Wash. Ct. App. 2002). Those factors are: (1) the character of the court issuing the judgment; (2) the scope of the original court’s jurisdiction; (3) procedural informality; and (4) procedural safeguards, including appeals. Id. No party briefed or argued these factors. (See generally MSJ; Resp.) Mr. Clay may disagree with the Thai court’s decisions (1) to deny him a trial continuance, and (2) to rule ultimately in Thai Defendants’ favor on his claims. Nevertheless, although Mr. Clay’s Thai attorneys describe portions of Thai law and procedure generally (see generally Krupica Decl.; 2d Dixon Decl. (Dkt. # 45) ¶ 3, Ex. A (attaching a copy of Mr. Terapun Petchsuwan’s declaration, who is an experienced Thai attorney)), no party argues that the Thai Action contained procedural or jurisdictional defects (see generally MSJ; Resp.). Accordingly, the court declines to address these factors specifically here. concerning his requested continuance does not mean that Mr. Clay did not have a full and fair opportunity to litigate his claim. Mr. Clay chose the court in Thailand to press his

claim and was represented by counsel in the Thai Action. (See Clay Decl ¶¶ 15, 17; see also Krupica Decl. ¶ 8 (stating that, as Mr. Clay’s Thai counsel, he requested a continuance of the Thai trial on Mr. Clay’s behalf “to accommodate Mr. Clay’s medical travel requests,” but the Thai court denied the request for a continuance).) Although Mr. Clay did not prevail in seeking a trial continuance, neither he nor his Thai attorney assert that there were any procedural irregularities in the Thai court’s decision. (See generally

Resp., see also generally Krupica Decl.) Although Mr. Clay was not present at the Thai trial, he submitted evidence “through written documentation.” (Krupica Decl. ¶ 14.) Further, although Mr. Clay’s Thai attorney states that “witnesses were not called due to the denial of continuation,” Mr. Clay’s Thai attorney does not explain why he did not call any witnesses other than Mr. Clay, or why he failed to cross-examine any witnesses. (See

id. ¶ 9.) Indeed, the fact that Mr. Clay could not travel to Thailand does not explain either of these decisions. Accordingly, the court is unable to conclude that Mr. Clay did not have a full and fair opportunity to litigate his claim. Mr. Clay may not have taken full advantage of that opportunity, but that does not mean that the Thai court did not afford it to him. Because Mr. Clay chose the Thai forum to press his claim, was represented by

counsel, had the opportunity to present evidence, and his case proceeded to trial and resolution there, the court cannot conclude that application of the doctrine of collateral estoppel would work an injustice here. The fact that Mr. Clay disagrees with the outcome of the Thai Action does not mean that it is unjust that collateral estoppel bars him from re-litigating the same issues in this forum.

In sum, the court concludes that the doctrine of collateral estoppel applies to the issues of negligence and Mr. Clay’s entitlement to compensation. The Thai court’s determination of those issues serves to collaterally estop the Clays’ re-litigation of those issues in this case. Because those issues have been previously determined in Defendants’ favor, Moving Defendants are entitled to summary judgment on the Clays’ claims here. D. Forum Non Conveniens and International Comity

Moving Defendants also move for summary judgment based on the doctrines of forum non conveniens and international comity. (See MSJ at 12-17.) Because the court has determined that Moving Defendants are entitled to summary judgment on grounds of res judicata and, alternatively, on grounds of collateral estoppel, see supra §§ III.B., III.C, the court declines to reach these issues.

Based on the foregoing analysis, the court GRANTS Moving Defendants’ motion (Dkt. # 35) and enters summary judgment in Moving Defendants’ favor on the Clays’ claims. Dated this 27th day of April, 2020

A United States District Judge