Nandjou v. Marriott Int'l, Inc.

985 F.3d 135

• Court: Court of Appeals for the First Circuit
• Decided: January 15, 2021
• Docket: 19-2189P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2189

CHIMENE MBAGUE NANDJOU, individually and as Administratrix of the Estate of Menelik Tchouamou and the Estate of William Tchouamou Ganjui, and as Mother and Next Friend of A.L.S. and W.T.M.,

Plaintiff, Appellant,

v.

MARRIOTT INTERNATIONAL, INC.; MARRIOTT WORLDWIDE CORPORATION; RELUXICORP, INC. d/b/a The Residence Inn by Marriott,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Thompson and Barron, Circuit Judges.*

Ross E. Schreiber, with whom The Schreiber Law Firm LLC was on brief, for appellant. Paul K. Leary, Jr., with whom Michael A. Savino and Cozen O'Connor were on brief, for appellees.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). January 15, 2021 BARRON, Circuit Judge. This appeal arises out of a suit

for damages that Chimene Mbague Nandjou brought against three

defendants in connection with the April 2016 drowning deaths of

her husband, William, and two-year-old son, Menelik, in a hotel

pool in Montreal, Canada. The defendants are Marriott

International, Inc.; Marriott Worldwide Corporation; and

Reluxicorp, Inc., the Marriott franchisee in Montreal where the

drowning occurred.

Nandjou's suit was removed from the local Massachusetts

court in which she had filed it to the United States District Court

for the District of Massachusetts, and the District Court, after

finding personal jurisdiction over the three defendants, then

dismissed it based on the doctrine of forum non conveniens after

determining that an adequate alternative forum for the claims was

available in Canada. Nandjou now appeals that ruling.

The defendants contend that dismissal on that basis was

proper and, alternatively, that the order of dismissal must be

affirmed on the ground that there is a lack of personal

jurisdiction over them. We reverse the District Court's dismissal

of Nandjou's claims based on forum non conveniens but affirm its

ruling finding personal jurisdiction over the three defendants.

I.

The following facts, which we draw from Nandjou's

complaint and the limited discovery that was allowed, are not in

- 3 - dispute. At the time of the events that gave rise to this suit,

Nandjou, her husband, and their three children lived in Lynn,

Massachusetts. At that residence, they received numerous direct

mailings from the Marriott defendants advertising various Marriott

properties. On at least three occasions, Marriott sent materials

to Nandjou and her husband's address that promoted "The Residence

Inn by Marriott" in Montreal. In the spring of 2016, after having

viewed those mailings, which included photographic depictions of

the hotel and described its pool, Nandjou's husband booked a stay

there.

On that trip, on April 20, 2016, Nandjou's husband took

the three children to the hotel pool to swim. No one else was

present at the scene at the time. Around 6:00 p.m., William, who

was holding two-year-old Menelik, began to drown. The other two

children, ages eight and four, attempted to rescue their father

and brother but were unable to do so.

Another hotel guest, visiting from Arizona, eventually

came along. She was able to gain access to the pool area and

called emergency services. Emergency personnel began to arrive

approximately twenty minutes later. They transported Nandjou's

son and husband to a nearby hospital in Montreal, where her husband

was pronounced dead. Her son was pronounced brain dead two days

later.

- 4 - Nandjou filed suit in September 2018, in the Superior

Court of Suffolk County, Massachusetts, against Reluxicorp, Inc.,

which is the owner of the hotel in question, a franchisee of

Marriott, and a Canadian corporation that has its principal place

of business in Montreal; Marriott International, Inc., which is a

Delaware corporation that has its principal place of business in

Maryland; and Marriott Worldwide Corporation, which is a wholly

owned subsidiary of Marriott International that is both

incorporated and headquartered in Maryland. Nandjou's complaint

asserted wrongful death claims against Reluxicorp and the two

Marriott defendants, as well as a claim for vicarious liability

against each of the Marriott defendants based on Reluxicorp's

status as a Marriott franchisee. She also brought a claim against

all three defendants for negligent infliction of emotional

distress on the surviving children, as well as a claim against all

three defendants for the conscious pain and suffering endured by

Menelik, her two-year-old son who died following the incident at

the pool. Nandjou's complaint sought, among other types of relief,

punitive damages.

The defendants removed the case to the District of

Massachusetts based on diversity of citizenship on October 25,

2018. They then filed a motion in that court in November 2018 to

dismiss Nandjou's claims based on the doctrine of forum non

- 5 - conveniens and pursuant to Federal Rule of Civil Procedure 12(b)(2)

for lack of personal jurisdiction over any of the three defendants.

The District Court denied that motion, but the

defendants followed up by filing a motion for reconsideration or

for a certificate of appealability on their motion to dismiss. On

review of the motion for reconsideration, the District Court first

addressed whether there was personal jurisdiction over the three

defendants and concluded that there was. Nandjou v. Marriott

Int'l, Inc., No. 18-cv-12230-ADB, 2019 WL 2918043, at *1 (D. Mass.

July 8, 2019).

The District Court started by concluding that the

Marriott defendants' marketing in Massachusetts concerning the

Reluxicorp-owned hotel in Canada where the drownings occurred

could be attributed to Reluxicorp because "the Defendants all used

the Marriott name and coordinated their business and marketing in

a manner that may reasonably have created the appearance of

authority to bind one another." Id. at *4. Then, after finding

Massachusetts' long-arm statute satisfied, id. at *5, the District

Court assessed whether the Marriott defendants' contacts in

Massachusetts via its marketing in that state were sufficient, as

a matter of federal constitutional due process, to satisfy the

three prongs of the test for establishing specific jurisdiction

over those two defendants and Reluxicorp: relatedness, purposeful

availment, and reasonableness, id. at *5-7. Focusing on the

- 6 - advertisements promoting the Reluxicorp-owned hotel that the

Marriott defendants had sent to Nandjou's home in Massachusetts,

the District Court held that they were. Id. at *6-7.

There remained, however, the defendants' motion for

reconsideration of the District Court's denial of the motion to

dismiss based on the doctrine of forum non conveniens. The

District Court decided to allow briefing and discovery on that

issue. Id. at *8. Thereafter, the District Court granted the

defendants' renewed motion to dismiss on forum non conveniens

grounds and ordered dismissal of Nandjou's claims pursuant to that

doctrine subject to the limitation that the defendants continue to

submit to personal jurisdiction in Canada on Nandjou's claims in

connection with the drownings in the parallel action that she had

filed against them in a court in that country. Nandjou v. Marriott

Int'l, Inc., No. 18-cv-12230-ADB, 2019 WL 5551438, at *6 (D. Mass.

Oct. 28, 2019).

Nandjou timely appealed from that ruling on November 15,

2019. We have jurisdiction under 28 U.S.C. § 1291.

II.

A.

"The doctrine of forum non conveniens . . . permits a

court to dismiss a case because the chosen forum (despite the

presence of jurisdiction and venue) is so inconvenient that it

would be unfair to conduct the litigation in that place." Howe v.

- 7 - Goldcorp Invs., Ltd., 946 F.2d 944, 947 (1st Cir. 1991). "[T]he

practical effect" of a dismissal on these grounds is to require

the plaintiff "to file his complaint in a more convenient forum

elsewhere" in order to obtain relief. Id.

Congress has codified a federal district court's

authority to transfer a case pursuant to the doctrine of forum non

conveniens when a federal forum other than the one in which the

plaintiff has chosen to bring suit is available to hear the claims

elsewhere in this country. See Atl. Marine Constr. Co. v. U.S.

Dist. Ct., 571 U.S. 49, 60 (2013) (citing 28 U.S.C. § 1404(a)). A

federal district court also has the power to dismiss a case

pursuant to that doctrine, however, when the alternative available

forum for the case is in a foreign country. See Sinochem Int'l

Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430 (2007).

Because the doctrine of forum non conveniens permits a

federal district court to deprive a plaintiff of availing herself

of her "home forum" even when she otherwise would be legally

entitled to bring suit in it, the bar for a district court to

dismiss a suit pursuant to the doctrine is a high one. Adelson v.

Hananel, 510 F.3d 43, 53 (1st Cir. 2007). The doctrine "is

intended to 'avoid trials in places so "inconvenient" that transfer

is needed to avoid serious unfairness,'" id. at 52 (emphasis added)

(quoting Howe, 946 F.2d at 950), as it guards against not mere

inconvenience but a plaintiff "by choice of an inconvenient forum"

- 8 - litigating in a manner that would "vex, harass, or oppress the

defendant by inflicting upon him expense" or unnecessary trouble,

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (quotation

marks omitted). For that reason, "[i]n any balancing of

conveniences, a real showing of convenience by a plaintiff who has

sued in his home forum will normally outweigh the inconvenience

the defendant may have shown." Koster v. (Am.) Lumbermens Mut.

Cas. Co., 330 U.S. 518, 524 (1947); Nowak v. Tak How Invs., Ltd.,

94 F.3d 708, 720 (1st Cir. 1996).

The first step of the requisite inquiry under the

doctrine entails consideration of whether an adequate alternative

forum exists to the one that the plaintiff has chosen for her suit.

Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir. 2000).

If there is no adequate alternative forum, then there is no basis

for dismissal under the doctrine and thus no need to reach the

second step. See id. In the event that there is an adequate

alternative forum available, however, a court must weigh at the

second step of the inquiry what are known as the public interest

factors (such as the relative interests of the local forum and the

government with jurisdiction over the alternative forum) and the

private interest factors (such as the burdensomeness to the parties

and witnesses of having the case proceed in either of the available

fora). Id.

- 9 - Dismissal based on the doctrine of forum non conveniens

is not appropriate when the consideration of the private and public

interest factors reveals that, as between the plaintiff and the

moving party, the relative burdens of litigating the case in the

plaintiff's home forum are in "equipoise," Adelson, 510 F.3d at

54, or only marginally favor litigating it in the alternative

forum, see, e.g., SME Racks, Inc. v. Sistemas Mecanicos Para

Electronica, S.A., 382 F.3d 1097, 1103 (11th Cir. 2004) (reversing

district court's dismissal where "the convenience factors were

about equal"); Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d

628, 640 (3d Cir. 1989) ("The conclusion that a balance at

equipoise or tipped toward the defendant favors dismissal is . . .

an error of law."). To establish the basis for dismissing a case

based on forum non conveniens, a defendant bears a "heavy burden,"

Adelson, 510 F.3d at 52, and must show that the assessment of the

relevant public and private interests favors the case being

litigated in the foreign forum to such a degree that it suffices

to overcome the presumption that the plaintiff is entitled to bring

her case in her home forum, see Iragorri, 203 F.3d at 15.

We also note, due to its relevance to our analysis below,

that in undertaking the necessary inquiry into the private interest

factors at the second step, a court must pay close attention to,

among other things, the nature of the plaintiff's claims and the

evidence that would be relied upon to adjudicate them, while giving

- 10 - particular attention to where the witnesses that the parties would

rely upon are located and how burdensome it would be for them to

appear in either the home or the foreign forum. See Gilbert, 330

U.S. at 508; see also Piper Aircraft Co. v. Reyno, 454 U.S. 235,

249 (1981) (explaining that "[e]ach case turns on its facts"

(alteration in original) (quoting Williams v. Green Bay & W. Ry.

Co., 326 U.S. 549, 557 (1946))); Howe, 946 F.2d at 951-52

(carefully examining the elements of the plaintiff's claims in

evaluating the location of the relevant evidence). In that

assessment, moreover, due consideration must be given to how many

such witnesses are third parties to the litigation and whether,

despite their third-party status, they would be subject to

compulsory process in either the home or the foreign forum. See,

e.g., Howe, 946 F.2d at 951 ("[O]nly Canadian courts, not courts

within the United States, have the legal power to compel the

testimony of twelve Canadian potential witnesses who are not under

the control of any party.").

Given the nature of the inquiry a court must undertake

under the forum non conveniens doctrine, we review a motion to

dismiss a claim on that basis only for an abuse of discretion,

Interface Partners Int'l Ltd. v. Hananel, 575 F.3d 97, 101 (1st

Cir. 2009), due to the district court's greater familiarity with

the practical realities of the litigation at hand. And, we

emphasize, a district court abuses its discretion in dismissing a

- 11 - case based on forum non conveniens only if it has "(1) failed to

consider a material factor; (2) substantially relied on an

improper factor; or (3) assessed the proper factors, but clearly

erred in weighing them." Id. (quoting Adelson, 510 F.3d at 52).

B.

There is no question that the District of Massachusetts

counts as Nandjou's home forum in this case, even though she now

lives in Georgia. See Adelson, 510 F.3d at 53 (explaining that

although the plaintiff was "not a Massachusetts domiciliary," the

U.S. District Court for the District of Massachusetts was "still

deemed a 'home forum' where the alternative [was] foreign"). Thus,

the District Court correctly articulated the operative standards

for assessing the motion to dismiss her claims pursuant to the

doctrine of forum non conveniens, see Nandjou, 2019 WL 5551438, at

*2-3, by expressly recognizing at the outset of its opinion that

Nandjou enjoyed a presumption against being denied her "choice of

forum" based on concerns about the inconvenience to the defendants

of litigating in it, id. at *2 (quoting Piper Aircraft Co., 454

U.S. at 241); that the defendants bear a "heavy burden" on a motion

to dismiss on the grounds of forum non conveniens, id. (quoting

Adelson, 510 F.3d at 52); and that the balance of public and

private interests must "strongly favor litigating the claim in the

second forum" to warrant dismissal, id. (emphasis added) (quoting

Adelson, 510 F.3d at 52).

- 12 - Accordingly, we are not persuaded by Nandjou's threshold

contention that the District Court committed a legal error by

failing even to apply the presumption against depriving a plaintiff

of her home forum based on concerns about the inconvenience to the

defendant. The District Court did, as Nandjou highlights, state

at a key point in its analysis that the private interests "weigh

in favor" of litigating the case in the Canadian forum without

expressly stating that they strongly favor litigation there. See

id. at *5. But, when read in context, that statement, like the

District Court's analysis of the record as a whole, is best

understood to have been premised on a proper understanding that

the nature of the showing that the defendants here must make to be

entitled to have Nandjou's claims dismissed on forum non conveniens

grounds is a demanding one.

Nandjou separately contends, however, that the District

Court clearly erred in applying this demanding standard to the

facts of this case. As we will next explain, we agree.

C.

There is no dispute between the parties that the District

Court correctly determined at the first step of the forum non

conveniens analysis that an adequate alternative forum did exist

in Canada. See id. at *3. In fact, at the time of the District

Court's ruling, Nandjou had filed a pending action against the

three defendants in a court in Canada in which she sought recovery

- 13 - for their respective roles in connection with the drownings of her

husband and son. See id.

There also is no dispute between the parties that the

District Court correctly determined, at the second step of the

analysis, that the public interest factors were "of neutral

weight," id. (capitalization altered), and thus that those factors

were "indeterminant" as to whether they favored litigating the

case in the Massachusetts or the Canadian forum, id. at *5. The

District Court rightly emphasized in so ruling that both

Massachusetts and Canada had an interest in the outcome of the

litigation, as the drowning victims were both Massachusetts

residents but the drownings were allegedly caused by the negligence

of a Canadian company in Canada. Id. at *4.

Nandjou contends, however, that the District Court

clearly erred in concluding that an assessment of the private

interest factors warranted the dismissal of her claims. The

District Court based the determination that they did on a pair of

key conclusions -- namely, that "the most important witnesses will

be those who can speak to the hotel's policy regarding pool

supervision and the exact circumstances on the day of the accident,

including the cause of Plaintiff's family members' deaths" and

that the "Defendants have demonstrated that the majority of those

relevant witnesses are Canadian residents." Id. at *6.

- 14 - We conclude that Nandjou is right that the District

Court's assessment of the private interest factors -- and thus its

assessment of the second step of the requisite inquiry as a whole

-- is clearly wrong. To explain why, it helps to separate out

Nandjou's claims.

1.

To start, as Nandjou points out, the District Court's

analysis of the private interest factors cannot suffice to justify

the dismissal of her vicarious liability claim against each of the

two Marriott defendants. This claim is, of course, dependent on

a showing of Canadian-based Reluxicorp's underlying liability. In

that respect, it, like Nandjou's other claims, depends on a showing

about the circumstances at the hotel pool on the day of the

accident in Montreal. But, in its nature, this claim -- unlike

the others that Nandjou brings -- also is dependent on showings

that relate to the relationship between Reluxicorp as a Marriott

franchisee and the Marriott defendants, given that whether the

Marriott defendants are vicariously liable is a function of the

nature of the franchisor-franchisee relationship between them and

Reluxicorp.

As Nandjou highlights, the evidence bearing on that

relationship concerns, among other things, the extent to which the

Marriott defendants held out that Canadian franchisee to potential

customers as if it were owned, operated, and controlled by

- 15 - Marriott. See Thalin v. Friden Calculating Mach. Co., 153 N.E.2d

658, 661 (Mass. 1958) (evaluating whether plaintiff had

established franchisor's liability for franchisee's negligence by

considering, among other things, whether there was evidence "of

present or past holding out" by the franchisor). That evidence in

turn depends on testimony from witnesses who, so far as the record

reveals, are not all or even in the main located in Canada, given

that each of the Marriott defendants is based in the United States,

not Canada. Thus, when the full picture is considered as to the

witnesses in play for the vicarious liability claim against each

of the Marriott defendants, we do not see a basis for concluding

that the presumption in favor of having the case litigated in the

home forum chosen by the plaintiff has been overcome. Cf. Duha v.

Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006) ("The dismissal of

distinct claims effectively omitted from the forum non conveniens

analysis is not within the district court's discretion.").

2.

That said, the District Court's order of dismissal based

on forum non conveniens was not limited to the claim for vicarious

liability against the Marriott defendants. It encompassed all

claims against all defendants, and the other claims -- including

the ones brought against the Marriott defendants and those brought

against Reluxicorp -- are for conduct that occurred in Canada and

do not so directly target conduct that concerns the relationship

- 16 - between Reluxicorp and the Marriott defendants. Moreover, if it

were proper to dismiss those claims based on forum non conveniens,

then it might well be proper to dismiss the suit as a whole on

that basis, given the relationship between the vicarious liability

claim against both of the Marriott defendants and the other claims

that Nandjou brings. See U.S.O. Corp. v. Mizuho Holding Co., 547

F.3d 749, 750 (7th Cir. 2008) ("There is no reason for identical

suits to be proceeding in different courts in different countries

thousands of miles apart."); cf. Olympic Corp. v. Societe Generale,

462 F.2d 376, 379 (2d Cir. 1972) ("[T]he benefits of impleader

might be taken into account in a close case in deciding whether or

not to dismiss for forum non conveniens . . . ."). Nevertheless,

we cannot sustain the District Court's forum non conveniens

determination as to the other claims either.

In concluding that the balance of witnesses who would

supply the most important testimony for the remaining claims were

Canadians who were not themselves parties to -- or employees of

parties to -- the suit, the District Court made the following

tally. It noted that seven of the eight potential witnesses

referred to in a Canadian police report concerning the incident at

the pool were from Canada and that only one, the Arizona resident

whom we mentioned above, was from the United States. Nandjou,

2019 WL 5551438, at *5. It then further noted that the coroner

and all of the doctors who treated the victims of the drownings

- 17 - were based in Montreal and were unwilling to travel to

Massachusetts. Id. In addition, it noted that none of these

Canadian witnesses was an employee of a party to the suit and that

a number of other non-party witnesses were located in Canada,

including the first responders who were on the scene soon after

the drownings, six police officers who investigated the drownings,

and the building inspector. Id. Thus, even setting aside the

employees of the defendants who were potential witnesses, the

District Court concluded that there were twenty-five Canadian

third-party witnesses who potentially could provide testimony

relevant to the determination of liability on these claims. Id.

By contrast, the District Court concluded, Nandjou had

identified only: one U.S.-based witness (from Arizona and not

Massachusetts) who was present at the pool in the aftermath of the

drownings; her two children; two Massachusetts residents (Kim and

Gregg Pierce, who were guests at the hotel at the time); and a

number of damages witnesses. Id. at *6. The District Court

further determined -- supportably -- that the Arizona resident's

testimony did not render duplicative the testimony of the Canadian

residents who arrived on the scene at the pool, given that the

Arizona witness stated in a deposition that she was not

continuously present there in the aftermath of the drownings, as

she left for periods of time to call the police and to help the

children call their mother. Id. The District Court also

- 18 - discounted the significance of the Pierces' testimony on the ground

that "they did not actually observe the accident, but merely

observed the aftermath, including the first responders at the

scene." Id. And, finally, the District Court noted that, although

Nandjou had identified a number of Massachusetts residents who

could supply evidence bearing on the case in addition to the

Pierces and her children, they could do so only as to "damages"

and not liability. Id.

For these reasons, the District Court concluded that the

balance of the private interest factors sufficed to support having

the case litigated in Canada rather than Massachusetts and thus

dismissing Nandjou's claim pursuant to the doctrine of forum non

conveniens. Id. After all, the District Court determined, there

were an overwhelming number of third-party Canadian witnesses who

could testify to matters concerning liability. Id.

This accounting, however, gives too little weight to the

fact that the only potential witnesses who were present when the

drownings occurred were Nandjou's two surviving children. It is

true that they are not third parties. But, they are also obviously

central witnesses who hail from this country rather than Canada.

And they have the status as key witnesses not only when it comes

to the issue of damages, given their special capacity to describe

the trauma that they endured as a result of the events that

transpired, but also as to liability, because they alone can

- 19 - describe the scene as it looked at the moment the drownings

occurred and until any assistance came.

In addition, while we agree with the District Court that

the witness from Arizona cannot be said to render testimony from

all others who arrived on the scene in the immediate aftermath of

the tragedy duplicative, she is herself a significant third-party,

non-Canadian witness to the events. In fact, she was the first to

arrive at the scene after the drownings occurred. The

Massachusetts-based Pierces are similarly potentially significant

third-party witnesses, as they, too, were on the scene in the

immediate aftermath of the drownings and as they are not in any

evident respect less well positioned than any of the other hotel

guests from Canada who arrived in the wake of the drownings to

give relevant testimony bearing on the conditions at the pool at

that time.

In total, then, Nandjou has identified five non-Canadian

witnesses who are well positioned to provide live testimony as to

liability, of whom only two are not third parties. Additionally,

those two witnesses are not only the only ones who were actually

present when the drownings occurred but also are young children

who, if forced to testify in Montreal, would be required to return

to the country of their loved ones' deaths. Cf. Guidi v. Inter-

Cont'l Hotels Corp., 224 F.3d 142, 145 (2d Cir. 2000) (reversing

a dismissal based on forum non conveniens in part because the

- 20 - district court failed to consider the "emotional burden" it would

impose on the plaintiffs to return to Egypt, where their loved

ones were killed).

Moreover, although the District Court discounted the

numerous additional Massachusetts-based residents who could supply

evidence concerning damages, Nandjou, 2019 WL 5551438, at *6, we

do not see why the fact that these witnesses would not be

testifying as to liability provides a basis for concluding that

the burdensome nature of having them appear in a Canadian court is

of little importance to the inquiry. We are not aware of authority

that suggests that, under the doctrine of forum non conveniens,

testimony from witnesses regarding damages is inherently less

crucial than testimony from witnesses regarding liability.

Insofar as the defendants contend that the distinction

between liability and damages witnesses does matter to the inquiry

into the balance of private interests, they appear to rely on

Iragorri v. International Elevator, 203 F.3d at 16. But, they are

wrong to do so, given how the facts of that case differ from this

one.

There, we reviewed a district court decision dismissing

a case on forum non conveniens grounds that arose from an accident

in which the plaintiff's late husband fell to his death in an

elevator shaft in Colombia and sued the company that maintained

the elevator in the District of Maine. Id. at 10-11. With respect

- 21 - to the private interest factors, we noted that "problems of proof

would be exacerbated, not ameliorated, by a trial in Maine," in

part because "crucial liability witnesses" were located in

Colombia, because their "credibility [would be] under attack" at

trial, and because, if the trial were held in Maine, they "most

likely would appear, if at all, by video deposition with the

assistance of a translator." Id. at 16. By contrast, we

explained, the plaintiff's "suggested witnesses were experts,

concerned primarily with damages," and their "testimony would be

more amenable to depositions and translation." Id.

This review of our analysis in Iragorri shows that the

key distinction there was not that one set of witnesses would be

providing evidence about liability while the other would be

providing evidence about damages only. Rather, what mattered was

that the liability witnesses would need to provide live testimony,

while the damages witnesses were less likely to need to do so.

Here, however, there is no similar ground for distinguishing

between the sets of witnesses, so far as the record reveals.

Rather, live testimony from the damages witnesses for Nandjou may

be crucial to their presentation, given that they plan to provide

evidence about the type of person the victim was and the effect of

his loss on his wife and daughters. And the District Court made

no finding that the Canadian non-party liability witnesses for the

defendants whom it concluded were "most important" would be unable

- 22 - to provide the critical aspects of that testimony through means

other than live testimony. See Nandjou, 2019 WL 5551438, at *6.

Thus, on this record, we do not agree that there is a

supportable basis for saying that the defendants have met their

heavy burden to show that concerns about private convenience

justify depriving Nandjou of the forum she chose, which is in this

country. That is especially true given the critically important

role that her young children may play at trial as witnesses, as

they alone are in a position to testify about the conditions at

the pool at the moment of the drownings.

Nor does the relevant precedent indicate otherwise. It

is evident that this case stands in stark contrast to those in

which we have affirmed a district court's dismissal of an action

based on forum non conveniens. For example, in Howe v. Goldcorp

Investments, the principal analogue on which the defendants rely,

we concluded that dismissal was not an abuse of discretion where

"most of the evidence [was] in Canada and most of the witnesses

[were] in Canada." 946 F.2d at 951. Indeed, except for the

plaintiff, "no resident of the United States 'ha[d] knowledge

relevant to the matters alleged in the amended complaint.'" Id.

(internal citation omitted). We found that the action had "little

to do with Massachusetts or any other jurisdiction in the United

States" but had "a great deal to do with Canada." Id. at 952-53.

- 23 - The same cannot be said here. As we have just cataloged,

the most critical witnesses reside in the United States, and there

is no reason to discount the potential import of the several third-

party, non-Canadian witnesses who were present at the pool in the

drownings' immediate aftermath or the numerous Massachusetts-based

witnesses whose live testimony bears on damages. Moreover, while

the defendants have estimated that twenty-five non-party witnesses

reside in Canada, they have not explained why live testimony from

all of those witnesses is critical. See Iragorri, 203 F.3d at 16.

Thus, we conclude that the District Court "clearly erred in

weighing" the private interests involved, Adelson, 510 F.3d at 52,

and that the balance of public and private interest factors did

not warrant dismissal.

III.

The defendants contend that we may affirm the District

Court's dismissal of Nandjou's claims on the alternative ground

that that there is no personal jurisdiction over them. See John

Hancock Life Ins. Co. v. Abbott Lab'ys, 863 F.3d 23, 34 (1st Cir.

2017) ("Although [the appellee] has not filed a cross-appeal, we

have jurisdiction to consider a prevailing party's alternative

arguments in defense of a judgment where, as here, the arguments

were made below."). We conclude, however, that the District Court

did not err in ruling otherwise, Nandjou, 2019 WL 2918043, at *7,

- 24 - and thus that we may not affirm its dismissal of Nandjou's claim

on this independent ground.

The District Court applied the "prima facie" standard to

assess the sufficiency of Nandjou's showing as to personal

jurisdiction. Id. at *1. Accordingly, the District Court

evaluated "whether the plaintiff has proffered evidence which, if

credited, is sufficient to support findings of all facts essential

to personal jurisdiction." Id. (quoting Bluetarp Fin., Inc. v.

Matrix Constr. Co., 709 F.3d 72, 79 (1st Cir. 2013)). Both parties

accept that the application of this standard was appropriate. We

thus "must accept the plaintiff's (properly documented)

evidentiary proffers as true," Foster-Miller, Inc. v. Babcock &

Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995), and "construe them

in the light most congenial to the plaintiff's jurisdictional

claim," Mass. Sch. of L. at Andover, Inc. v. Am. Bar Ass'n, 142

F.3d 26, 34 (1st Cir. 1998). We review the District Court's

application of that standard to the record de novo. Adelson, 510

F.3d at 48.

Because the District Court's subject-matter jurisdiction

in this case was premised on diversity of citizenship, we act as

the "functional equivalent" of a state court sitting in

Massachusetts for the purpose of assessing personal jurisdiction.

Kuan Chen v. U.S. Sports Acad., Inc., 956 F.3d 45, 54 (1st Cir.

- 25 - 2020) (quoting Baskin-Robbins Franchising LLC v. Alpenrose Dairy,

Inc., 825 F.3d 28, 34 (1st Cir. 2016)). We therefore must evaluate

whether the exercise of personal jurisdiction over the defendants

complies with both the requirements of the Massachusetts long-arm

statute and the Due Process Clause of the Fourteenth Amendment to

the U.S. Constitution. Id.

The defendants do not argue that the long-arm statute

imposes any limit that the Federal Constitution does not. As any

argument to the contrary is waived, we "train the lens of our

inquiry exclusively on the federal constitutional analysis." Id.

For there to be personal jurisdiction over a defendant

as to a claim, the Due Process Clause requires that the defendant

must "have sufficient minimum contacts with the state, such that

'maintenance of the suit does not offend "traditional notions of

fair play and substantial justice."'" Adelson, 510 F.3d at 49

(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Such contacts must be sufficient to sustain a theory of either

general or specific jurisdiction. See Kuan Chen, 956 F.3d at 55.

In view of Daimler AG v. Bauman, 571 U.S. 117 (2014), however,

Nandjou pursues a theory of specific personal jurisdiction only.

Thus, for each claim and each defendant, she must make a tripartite

showing: that the claim is sufficiently related to the defendant's

contacts with Massachusetts, that the defendant's contacts with

Massachusetts constitute purposeful availment of the protections

- 26 - and privileges of conducting business in the Commonwealth, and

that the exercise of jurisdiction there is reasonable. Nowak, 94

F.3d at 712-13. The District Court concluded that, under the prima

facie standard, Nandjou met the bar on all three fronts for all of

her claims against all of the defendants. See Nandjou, 2019 WL

2918043, at *7.

We start with the claims Nandjou brings against the

Marriott defendants. The defendants do not attempt to distinguish

between the claims against them in developing their only argument

in support of their assertion that the District Court erred in

finding that Nandjou made the requisite showing as to personal

jurisdiction over them. That argument concerns the showing Nandjou

makes as to the relatedness prong. Moreover, in pressing that

argument, the defendants contend only that the District Court erred

in finding that their marketing activities in Massachusetts

suffice to show that their in-Massachusetts contacts satisfy the

relatedness requirement. Thus, we address only that portion of

the District Court's analysis in evaluating whether there is

personal jurisdiction as to the Marriott defendants. See Marek v.

Rhode Island, 702 F.3d 650, 655 (1st Cir. 2012) (explaining that

"issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived" (quoting

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).

- 27 - The Marriott defendants emphasize that Nandjou's claims

against them focus on duties that Nandjou contends that they

breached through their actions (or failures to act) in Canada, not

Massachusetts. They also emphasize that the Massachusetts-based

activity on which the District Court relied in finding that it had

personal jurisdiction over them consists of a marketing campaign

that, even if it induced Nandjou's family to stay at the hotel in

Montreal and to use its pool, did not itself play anything more

than a but-for role in causing the drownings themselves. The

Marriott defendants thus contend that those Massachusetts-based

contacts have too attenuated a connection to the tortious conduct

alleged to satisfy the due process-based, personal jurisdiction

requirement that in-forum contacts must be related to the claim at

issue.

We may skip over the fact that among the claims that

Nandjou has brought against the Marriott defendants is a claim for

vicarious liability, which depends in significant part on the

nature of the franchisor-franchisee relationship rather than

solely a breach of duty that occurred only in Canada. For, even

if we accept the premise on which the defendants' assertion of

error by the District Court rests, and thus focus our analysis

exclusively on the connection between the Marriott defendants'

marketing activity in Massachusetts and the claims against them

that seek to hold them liable for their own breaches of duty rather

- 28 - than vicariously for the breach of duty by Reluxicorp, we are not

persuaded by the contention that Nandjou failed to make the

requisite showing of relatedness.

The Marriott defendants are correct that, in Nowak v.

Tak How Investments, we noted that a "proximate cause standard

better comports with the relatedness inquiry" with respect to tort

claims than a pure "'but for' requirement," which "has in itself

no limiting principle." 94 F.3d at 715. For that reason, the

Marriott defendants contend that the fact that their marketing

activities in Massachusetts were at most a but-for cause of the

drownings -- rather than a proximate one -- precludes us from

treating those activities as the kind of contacts that could

satisfy the relatedness requirement.

But, as the Marriott defendants themselves acknowledge,

we explained in Nowak that "strict adherence to a proximate cause

standard in all circumstances is unnecessarily restrictive" and

that "the first prong of the jurisdictional tripartite test is not

as rigid" as the proximate cause inquiry in the tort context. Id.

Thus, even if the Marriott defendants are right that their direct-

mail campaign, in and of itself, did not proximately cause the

drownings, that fact alone would not end our inquiry with respect

to whether that campaign could nonetheless suffice to satisfy the

relatedness requirement.

- 29 - The Marriott defendants do not dispute that Nowak

recognized that where a corporation "directly targets residents in

an ongoing effort to further a business relationship, and achieves

its purpose, it may not necessarily be unreasonable to subject

that corporation to forum jurisdiction when the efforts lead to a

tortious result," id., even though they may not have proximately

caused it. But, the Marriott defendants emphasize, Nowak poses no

problem for them because that case involved a much more extensive

course of dealing between the plaintiff (also the family member of

a patron of a foreign hotel who drowned in its pool) and the

defendant than this one does. They thus argue that Nowak may not

be extended to facts like those before us here, and they warn that

doing so would effectively place any hotel that advertises on the

internet at risk of being sued in any forum, anywhere in the

country, where a guest is domiciled and books a reservation in

response to that online marketing.

Nowak made clear, however, that the precise facts of

that case do not necessarily define the outer limits of the

circumstances in which a defendant's actions in the forum

jurisdiction to cultivate a plaintiff's business may be said to be

related to a resulting tort claim even though those actions did

not proximately cause the tort. See id. at 716. It expressly

stated that "[i]t may be that other kinds of fact patterns will be

- 30 - found to meet the basic factor of foreseeability, but we have no

occasion here to pronounce more broadly." Id.

In this case, the Marriott defendants' activity that

provides the basis for the District Court's conclusion that the

relatedness requirement has been met does not consist of their

merely having posted an advertisement for the Canadian hotel on

the internet for all the world to see. Instead, that activity,

the District Court supportably found, see Nandjou, 2019 WL 2918043,

at *2, *5, consists of the Marriott defendants deliberately having

cultivated business from Nandjou and her family in Massachusetts

by sending direct mail to her home in the Commonwealth that

promoted the very hotel in which the drownings occurred and that

even described that hotel's pool.

Nor is this a case in which such a direct in-forum-state

attempt to cultivate the plaintiff's business played no role in

the plaintiff's decision to enter into the business relationship

that grounds her tort claims. The record suffices to provide

support for Nandjou's claims that, through those materials, the

Marriott defendants induced her family to stay at that hotel.

We thus conclude that, while the nature of the business

cultivation in Massachusetts by the Marriott defendants differed

from the nature of the business cultivation in the forum state by

the defendants in Nowak, the District Court correctly held that,

per Nowak, Marriott's contacts with Massachusetts were

- 31 - sufficiently related to Nandjou's claims against the Marriott

defendants to support the exercise of specific jurisdiction over

them. See Nandjou, 2019 WL 2918043, at *5-6. As a result, there

is no lack of personal jurisdiction over the Marriott defendants.

That brings us, then, to the question of whether there

is personal jurisdiction over Reluxicorp. In contending that there

is not, Reluxicorp does not deny that, "[f]or purposes of personal

jurisdiction, the actions of an agent may be attributed to the

principal." Daynard v. Ness, Motley, Loadholt, Richardson & Poole,

P.A., 290 F.3d 42, 55 (1st Cir. 2002). It thus accepts that the

Marriott defendants' contacts in Massachusetts could be imputed to

it if those defendants were acting as its agents when engaged in

those contacts. But, Reluxicorp contends that, even still, there

is no personal jurisdiction over it.

Reluxicorp argues that is the case in part because it

contends that the Marriott defendants' contacts with Massachusetts

through their marketing efforts were too attenuated from the

alleged tortious conduct to support a finding of relatedness even

as to the Marriott defendants. But, as we have just explained,

there is no force to that contention, and so, we must address

Reluxicorp's additional assertion that the Marriott defendants'

marketing activities in Massachusetts may not be attributed to it.

- 32 - Here, Reluxicorp first contends that Nandjou has failed

adequately to establish that the Marriott defendants were acting

as Reluxicorp's agents in conducting the direct-mail marketing

campaign which led them to send brochures to Nandjou's home in

Massachusetts advertising the Montreal hotel and highlighting its

pool. Reluxicorp does not contest Nandjou's assertion that the

hotel had entered into a franchise agreement with the Marriott

defendants that obligated Marriott to undertake marketing efforts

on behalf of Reluxicorp in return for payment and which

specifically identified those efforts as potentially including

direct mail. Reluxicorp stresses instead that it did not dictate

-- and did not have the contractual right to dictate -- any of the

specifics of the marketing methods that the Marriott defendants

would deploy. Thus, Reluxicorp contends, the Marriott defendants

were not acting as Reluxicorp's agents in marketing the Montreal

hotel to Nandjou's family as they did, because Reluxicorp lacked

control over the marketing methods chosen by them.

As support for this assertion, Reluxicorp relies on

Theos & Sons, Inc. v. Mack Trucks, Inc., 729 N.E.2d 1113 (Mass.

2000), which holds that, under Massachusetts law, an agency

relationship requires that "the agent is to act on behalf and for

the benefit of the principal, and subject to the principal's

control." Id. at 1119. Reluxicorp's assertion on this score

appears to depend on the implicit legal premise that Massachusetts

- 33 - agency law is determinative in this case of whether an agency

relationship exists for purposes of the inquiry that the Due

Process Clause requires us to undertake in determining personal

jurisdiction. Or, perhaps Reluxicorp means to contend that Theos

& Sons may be understood to set forth a view of the law of agency

that is widely shared.

But, even assuming that Theos & Sons is dispositive of

whether, for purposes of personal jurisdiction, the Marriott

defendants were Reluxicorp's agents in carrying out their

Massachusetts-based marketing, Reluxicorp acknowledges that the

minimum contacts of one defendant in a forum state can be

attributed to another even if there is no actual agency

relationship between them in place. In particular, it accepts

that such imputation of those contacts can be proper under

principles of agency by estoppel. See Daynard, 290 F.3d at 56-

57. And Reluxicorp also accepts that, under those principles, a

"person who is not otherwise liable as a party to a transaction

purported to be done on his account[] is nevertheless subject to

liability to persons who have changed their positions because of

their belief that the transaction was entered into by or for him,

if" either "he intentionally or carelessly caused such belief" or

if he, "knowing of such belief and that others might change their

positions because of it, . . . did not take reasonable steps to

- 34 - notify them of the facts." Id. at 56 (quoting Restatement (Second)

of Agency § 8(B) (1958)).

Thus, if Nandjou and her husband acted in reliance on

the notion that the direct-mail campaign conducted by the Marriott

defendants was undertaken by Reluxicorp, even if Reluxicorp did

not specifically authorize it, that contact with Massachusetts

potentially can be attributed to Reluxicorp for the purposes of

evaluating whether personal jurisdiction exists over Reluxicorp in

this suit. In other words, to show that the Marriott defendants'

direct-mail-based contacts in Massachusetts are also Reluxicorp's,

Nandjou need only demonstrate -- to the degree required under the

prima facie standard -- that Reluxicorp either intentionally or

carelessly led her and her husband to believe that it was

responsible for the advertisements sent to their home promoting

the hotel in Montreal or, at least, that it failed to take

reasonable steps to correct their perception that it was.

As the District Court rightly determined, see Nandjou,

2019 WL 2918043, at *4, the record supportably shows that Nandjou

and her husband reasonably understood the advertisements that they

received at their home from the Marriott defendants to be a

solicitation of their business from a Marriott-owned and Marriott-

operated property in Montreal. See id. And, the record also

suffices to show, they changed their position based on that

perception -- Nandjou's husband made a reservation to stay there

- 35 - at least in part because the couple determined from the brochures

that the Montreal hotel "was an attractive Marriott hotel that

[they] would like to visit, and that the hotel and its amenities,

including its pool, were clean and safe."

Moreover, the record supportably shows, Reluxicorp's own

conduct contributed to Nandjou and her husband's understanding.

Reluxicorp held out its hotel in Montreal as being a Marriott

property by identifying itself with the descriptor "The Residence

Inn by Marriott" and through its use of Marriott branding and

signage at its physical location. And Reluxicorp does not develop

any argument that it did not know that its actions in that regard

could lead prospective customers to believe that it was operated

by Marriott or that it made any effort to ensure that the

advertising that it contractually authorized the Marriott

defendants to undertake on its behalf (which expressly was

understood to include direct mailings) clarified that it was an

independent entity. Indeed, so far as the record reveals,

Reluxicorp benefited from affiliating itself with Marriott by

virtue of the goodwill associated with that brand.

Reluxicorp does argue that Nandjou's family could not

have believed that the marketing materials were sent on its behalf

by Marriott because the family did not realize that Reluxicorp and

Marriott were separate businesses. But, that fact, even if true,

hardly helps Reluxicorp's position. The allegation that Nandjou

- 36 - and her husband understood the Montreal hotel and Reluxicorp to be

a single entity only reinforces our conclusion that the record

supportably shows that the couple believed the advertising

campaign was undertaken "by or for" the Montreal hotel and that

Reluxicorp's own actions facilitated that understanding. See

Daynard, 290 F.3d at 56 (quoting Restatement (Second) of Agency

§ 8(B) (1958)).

As a result, even if this case cannot properly be

considered one in which Reluxicorp "intentionally . . . caused

[the] belief" that it was entreating Nandjou and her husband to

visit, Reluxicorp certainly "did not take reasonable steps" to

disabuse the couple of that notion. See id. (quoting Restatement

(Second) of Agency § 8(B) (1958)). We therefore conclude that

Marriott's direct-mail efforts can properly be evaluated as

Reluxicorp's own contacts with Massachusetts for the purpose of

assessing personal jurisdiction.

Thus, we hold that the District Court properly concluded

that the relatedness requirement was met as to Reluxicorp based on

the Marriott defendants' direct-mail marketing of the Canadian

hotel to Nandjou and her husband at their home in Massachusetts,

just as we hold it properly concluded that requirement was met

based on those same activities as to the Marriott defendants

themselves. And, that being so, we conclude that there is no basis

for reversing the District Court's finding of personal

- 37 - jurisdiction over Reluxicorp, just as there is no basis for doing

so as to its finding of personal jurisdiction over the Marriott

defendants, as Reluxicorp offers no other reason that could supply

a basis for our concluding otherwise.

IV.

We affirm the judgment of the District Court denying the

defendants' motion to dismiss for lack of personal jurisdiction

and we reverse the judgment of the District Court granting the

defendants' motion to dismiss on forum non conveniens grounds.

Each party shall bear their own costs."

- 38 -