Slattery v . Disney World CV-03-267-M 12/08/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Megan S . Slattery, Individually and as Personal Representative for the Estate of Sean C . Slattery, Plaintiff

v. Civil N o . 03-267-M Opinion N o .

Walt Disney World Company, a Florida Corporation, Defendant

O R D E R

Megan Slattery, on behalf of herself and as the

representative of her late husband’s estate, brings this action

against Walt Disney World Company (“Disney World”), seeking

damages for what she says was the wrongful death of her husband,

Sean Slattery. Her complaint asserts seven causes of action,

each alleging that Disney World’s negligence (or that of one or

more of its employees) proximately caused M r . Slattery’s death.

The complaint also includes a claim for loss of consortium.

Disney World moves to dismiss plaintiff’s complaint for lack

of personal jurisdiction over i t . See Fed. R. Civ. P. 12(b)(2).

In the alternative, it asserts that the court should dismiss plaintiff’s complaint because this is not the appropriate venue

in which to litigate her claims. See

. Finally,

should the court determine that dismissal is not warranted,

Disney World moves the court to transfer this matter to the

United States District Court for the Middle District of Florida,

the district in which plaintiff’s husband died and, at least

according to Disney World, the most convenient and practical

forum for this litigation. See

. Plaintiff

objects.

Background

While the parties agree on very few of the jurisdictionally

relevant facts, the circumstances surrounding the death of M r .

Slattery (as set forth in plaintiff’s complaint) are largely

undisputed.

In April of 2002, plaintiff and her husband took their four

children to the Walt Disney World resort in Florida. While

there, they stayed at the Polynesian Hotel, which is located on

the resort’s premises and operated by Disney World. After

arranging for a babysitter to watch their children, plaintiff and

2 Mr. Slattery went to dinner at a restaurant in the adjacent Grand

Floridian Hotel, another hotel on the resort’s premises operated

by Disney World. According to plaintiff, employees of Disney

World served her and M r . Slattery dinner and alcoholic beverages.

And, says plaintiff, because those employees over-served M r .

Slattery, he became intoxicated.

At some point during their meal, plaintiff and M r . Slattery

argued, prompting him to leave the restaurant and go for a walk.

Eventually, a security officer employed by Disney World saw M r .

Slattery and noticed that he was intoxicated, confused, and

looking for his wife. The officer asked M r . Slattery to sit down

on a nearby bench and said he would seek out some assistance for

him. The officer then left and went to the lobby of one of the

hotels to find the manager on duty. When he returned to the spot

where he had left M r . Slattery, the officer noticed that Slattery

had gone. Presumably concluding that he had either found his

wife or returned to his hotel room, the officer resumed his

normal security routine. Plaintiff speculates that, after the

officer left M r . Slattery to find the hotel’s manager, Slattery

3 walked off to “answer the call of nature.” Complaint at para.

12.

Adjacent to the Grand Floridian Hotel is a man-made pond,

known as the Grand Lagoon. A pier extends from the shore line

out into the pond. Guard rails extend throughout its length,

with two exceptions: the end of the pier and a portion of the

pier used for docking boats are not protected by guard rails.

According to plaintiff, during evening hours there is no

barricade or gate to prevent patrons of the resort from walking

onto the pier. Nor is the pier adequately lighted. Nor, says

plaintiff, are there any warning signs located on or near the

pier, cautioning pedestrians about the dangers of falling into

the pond.

Mr. Slattery’s efforts to locate a spot to relieve himself

allegedly took him to the end of the pier. And, says plaintiff,

“[u]nsteady by the alcohol served by Defendant Disney restaurant

wait staff, M r . Slattery fell fully clothed in suit and tie into

the Grand Lagoon and drowned.” Complaint at para. 1 2 .

4 When M r . Slattery did not return to his hotel room,

plaintiff made several calls to the front desk, presumably to ask

whether any hotel staff members had seen him. Eventually, she

contacted the Orange County Sheriff’s Office and reported M r .

Slattery as missing. Disney World’s Security Lake Patrol Team

began a search and discovered M r . Slattery’s suit jacket. The

canine unit from the Sheriff’s Office was then dispatched to the

scene to assist in the search. After the search dog responded to

the presence of a strong scent in one particular area on or near

the pier, divers were dispatched to the pond. M r . Slattery’s

body was discovered in the water at the end of the pier.

Discussion

As noted, Disney World moves the court to dismiss

plaintiff’s claims on grounds that personal jurisdiction over

Disney World is lacking and/or because this is not an appropriate

forum in which to litigate plaintiff’s claims. Alternatively,

Disney World moves to transfer this proceeding to the United

States District Court for the Middle District of Florida.

Although plaintiff argues at length that the court may properly

exercise personal jurisdiction over Disney World - she has

5 submitted a 50-page legal memorandum, six affidavits, several

hundred pages of exhibits, and four video tapes - she has failed

to develop (or support) any argument against the transfer of her

claims to federal court in Florida. See generally Plaintiff’s

memorandum (document n o . 1 5 ) .

Although Disney World asserts that personal jurisdiction

over it is lacking, the court need not resolve that issue

because, even if Disney World is correct, the court still retains

discretion to transfer this action pursuant to

.

Alternatively, if the court might properly exercise personal

jurisdiction over Disney World, it is vested with discretion to

transfer this proceeding to a more appropriate forum. See

(a). C f . Goldlawr, Inc. v . Heiman,

(1962) (addressing

, the companion section to

1404, and concluding that “[t]he language of § 1406(a) is amply

broad enough to authorize the transfer of cases, however wrong

the plaintiff may have been in filing his case as to venue,

whether the court in which it was filed had personal jurisdiction

over the defendants or not.”).

6 I. Transfer under

(a).

Section 1404(a) of Title 28 provides that, “For the

convenience of parties and witnesses, in the interest of justice,

a district court may transfer any civil action to any other

district or division where it might have been brought.”

Authority to transfer a case pursuant to that statute is

committed to the court’s broad discretion. See United States ex

rel. La Valley v . First Nat’l Bank,

9 1 , 594 (D.N.H.

1985).

As the party seeking transfer, Disney World bears the burden

of demonstrating that transfer is warranted. See, e.g., Coady v .

Ashcraft & Gerel,

, 11 (1st Cir. 2000). “But unless

the balance is strongly in favor of the defendant, the

plaintiff’s choice of forum should rarely be disturbed.” Gulf

Oil Corp. v . Gilbert,

0 1 , 508 (1947) (decided prior to

the enactment of section 1404(a), but discussing and applying the

related common law doctrine of forum non conveniens).

7 In Gulf Oil, the Court identified the following factors as

being relevant when determining whether dismissal, under the

doctrine of forum non conveniens, is appropriate:

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Id. at 508-09.

8 Shortly after the Gulf Oil opinion issued, Congress enacted

section 1404(a) to alleviate some of the harshness of result

associated with the doctrine of forum non conveniens and to

authorize courts to transfer, rather than simply dismiss, civil

actions that were brought in inappropriate venues. See generally

Piper Aircraft C o . v . Reyno,

(1981).

Nevertheless, the factors identified by the Court in Gulf Oil

remain relevant when considering whether, under section 1404(a),

it is appropriate to transfer an action.

The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in § 1404(a) for transfer. . . . As a consequence, we believe that Congress, by the term “for the convenience of parties and witnesses, in the interest of justice,” intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff’s choice of forum is not to be considered, but only that the discretion to be exercised is broader.

Norwood v . Kirkpatrick,

9 , 32 (1955).

II. Transfer of This Case is Warranted.

In light of all the relevant factors which bear upon the

question of transfer under section 1404(a), the court concludes

9 that this is a case in which plaintiff’s choice of forum should

be disturbed and transfer ordered. First, courts generally

recognize that the convenience of the witnesses is one of the

most significant factors to be considered in any analysis under

section 1404(a). See, e.g., Buckley v . McGraw-Hill, Inc.,

3 0 , 440 (D.N.H. 1991). Here, Disney World has identified

numerous material fact witnesses who are likely to be called

either at trial o r , at a minimum, for depositions. All reside in

Florida and include: the restaurant employees who served

plaintiff and her late husband dinner and drinks on the night of

Mr. Slattery’s drowning; the Disney World security officer who

encountered M r . Slattery shortly before his death; the Disney

World employees who received the phone calls placed by plaintiff

inquiring into the whereabouts of M r . Slattery; and the Disney

World employees who assisted in the search for M r . Slattery.

While those witnesses are employed by Disney World, other

Florida residents who are likely relevant witnesses are not

within Disney World’s control, including: the police officers to

whom plaintiff reported that her husband was missing and other

public officials who conducted the search for M r . Slattery; the

10 medical examiner who investigated the cause(s) of M r . Slattery’s

death; and, because plaintiff’s complaint calls into question the

design and/or construction of the pier, public officials who are

familiar with local building codes and/or those who actually

approved the design and/or building permit for the pier. On the

other hand, plaintiff is the only material factual witness who

does not live in Florida and who might provide relevant testimony

about the circumstances leading up to M r . Slattery’s death.

In addition to the numerous factual witnesses who reside in

Florida, there are also many documents and public records

relevant to plaintiff’s claims that are located in Florida (e.g.,

building codes, architectural designs for the pier, police

reports, medical examiner’s notes, e t c . ) . While those documents

might readily be copied and used in litigation in this forum,

their presence in Florida underscores the substantial interest

that Florida has in the outcome of this case - an interest that

New Hampshire simply does not share. For example, the provisions

(and enforcement) of local building codes and safety regulations,

as well as Disney World’s compliance with them, will be relevant

11 to plaintiff’s case. Plainly, those are issues of substantial

local concern.

Finally, plaintiff’s complaint describes the pier from which

Mr. Slattery allegedly fell as an “unreasonably dangerous trap,”

complaint at para. 54(c), which had inadequate lighting,

insufficient guard rails, and no written warnings describing the

perils of falling into the pond. Should this case proceed to

trial, the parties (or, at a minimum, Disney World) would likely

want the jury to take a view of that pier. Such a view would be

virtually impossible if plaintiff’s claims were litigated in this

forum.

In short, the court concludes that the convenience of the

many witnesses who are likely to be called in this matter (both

those employed and not employed by Disney World), the existence

of documentary evidence in Florida, the strong interest that

Florida has in enforcing its own building codes and negligence

law, the ability of a Florida federal court to more readily

insure the presence of pertinent witnesses at trial, the greater

familiarity with Florida common law possessed by courts in that

12 forum, and the substantial likelihood that a jury view of the

pier in question would be helpful, all strongly counsel in favor

of transferring this action to the Middle District of Florida to

insure a fair, orderly, and cost-effective resolution of

plaintiff’s negligence claims against Disney World.

Conclusion

Regardless of whether or not the court may properly exercise

personal jurisdiction over Disney World, it concludes that, in

the interest of justice, this matter should be transferred to the

United States District Court for the Middle District of Florida.

See

(a). See also

. Disney

World’s motion to dismiss (document n o . 6 ) i s , therefore, granted

in part and denied in part. To the extent it seeks the dismissal

of plaintiff’s claims, the motion is denied. However, the motion

is granted to the extent it seeks the transfer of this proceeding

to a more appropriate federal forum in Florida. Accordingly, the

Clerk of Court shall transfer this proceeding to the United

States District Court for the Middle District of Florida.

13 SO ORDERED.

Steven J. McAuliffe United States District Judge

December 8 , 2003

cc: James K. Brown, Esq. Joseph F. McDowell, I I I , Esq.

14