The plaintiffs, Lee and Yoon, were the parents of H.L., a South Korean citizen who attended high school in Idaho as part of an exchange program. With permission from both plaintiffs and his host family, H.L. attended a one-week summer camp in June 2016 at Malibu Club located on an island in British Columbia, Canada. The camp was operated by Young Life, a Texas corporation headquartered in Colorado Springs, Colorado.
H.L. drowned after falling into rapidly moving water while trying to retrieve a volleyball that had fallen into the water. H.L. did not know how to swim and was carried off by the fast-moving water.
The plaintiffs filed a lawsuit in federal court in Colorado in June 2018 asserting claims against Young Life for wrongful death resulting from negligence, violation of the Colorado Premises Liability Act, and respondeat superior. Young Life moved to dismiss the lawsuit on the basis of forum non conveniens.
DISTRICT COURT JUDGE PHILIP A. BRIMMER The forum non conveniens assessment involves two threshold questions. First, whether there is an adequate alternative forum in which the defendant is amenable to process, and second, whether foreign law applies. If the answer to either of these questions is no, the forum non conveniens doctrine is inapplicable. If, however, the answer to both questions is yes, the court goes on to weigh the private and public interests bearing on the forum non conveniens decision. The defendant bears the burden of proof on all elements of the forum non conveniens analysis. Sinochem Int’l Co.
Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 423 (2007).
Availability of Alternative Forum. The issue of whether an alternative foreign forum exists is a two-part inquiry involving availability and adequacy. The availability requirement is ordinarily met when a defendant agrees to be amenable to process in the foreign forum. Here, defendant states that it is amenable to process in British Columbia, and plaintiffs do not dispute that British Columbia is an available forum for this litigation. Thus, the Court finds that British Columbia is an available forum for this litigation.
Adequacy of Alternative Forum. Adequacy does not require that the alternative forum provide the same relief as an American court. “Instead, the alternative forum is not inadequate unless its remedy is ‘so clearly inadequate that it is no remedy at all.’” Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1174 (10th Cir. 2009). Although plaintiffs argue that British Columbia is not an adequate alternative forum because their claims would be barred by the applicable statute of limitations, defendant agrees, as a condition of dismissal, not to oppose an action filed by plaintiffs in British Columbia on statute of limitations grounds. In sum, the Court finds that defendant has met its burden and that British Columbia is an available and adequate alternative forum.
Applicable Law. Having determined that there is an adequate alternative forum, the Court now turns to the question of whether British Columbia or Colorado law will govern this dispute. A court considers the following contacts in determining which state’s law applies to an issue:

(a) the place where the injury occurred, (b)
the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered. Restatement (Second) of Conflict of Laws, §§ 6, 145 (1971). The contact factors are considered in light of certain policy considerations, including the needs of the interstate and international systems, the relevant policies of the forum and other interested states, protection of justified expectations, the basic policies underlying the particular field of law, predictability and uniformity of result, and ease of determination and application of the law to be applied.
Locus of the Injury. The place where the injury occurred “effectively creat[es] a presumption that that jurisdiction provides the appropriate law.” Elvig v.
Nintendo of Am., Inc., 696 F. Supp. 2d 1207, 1210 (D. Colo. 2010). Both parties agree that H.L.’s death occurred in British Columbia, Canada. This provides strong evidence that British Columbia law governs.
Locus of the Allegedly Tortious Conduct. Next the Court determines the place where the conduct allegedly causing the injuries occurred. Both parties agree defendant’s allegedly tortious conduct occurred in British Columbia, Canada. This also supports applying British Columbia law.
Domicile, Residence, Nationality, Place of Incorporation and Place of Business of the Parties. The residence of the parties is not a particularly significant factor. Plaintiffs are South Korean citizens, while defendant is an American corporation domiciled in Texas and Colorado doing business in British Columbia.
The Court finds that this factor is neutral.
Place Where the Relationship, if Any, of the Parties Is Centered.
As defendant argues, and plaintiffs do not dispute, the relationship between the parties is centered in British Columbia. Plaintiffs do not allege that they have had any contact with defendant in Colorado. Moreover, courts have found in the context of the resort industry that the location of a resort must be given weight in determining the locus of the parties’ relationship. As the locus of both plaintiffs’ injury and defendant’s allegedly tortious conduct is British Columbia, and the relationship of the parties is centered in British Columbia, the Court finds that defendant has met its burden to show that the “most significant relationship” test supports the application of British Columbia law.
Policy Considerations.
The Court finds that policy considerations weigh in favor of applying British Columbia law. The first factor, needs of the interstate and international systems, weighs in favor of applying British Columbia law because applying Colorado law to tort claims that arose and occurred in British Columbia does not “further harmonious relations between states [or] facilitate commercial intercourse between them.” Restatement (Second) of Conflict of Laws, § 6, cmt. d (1971).
Applying British Columbia law to an injury allegedly caused and suffered in British Columbia fosters predictability, uniformity of result, and ease of determination and application of the law to be applied. According to the Restatement, applying the law of the place where the injury occurs is “easy … and leads to certainty of result” because “the place of injury is readily ascertainable.” Restatement (Second) of Conflict of Laws, § 146, cmt. e (1971).
For the foregoing reasons, the Court finds that British Columbia law applies.
Forum Non Conveniens: Private and Public Interest Factors. Having answered both threshold questions in the affirmative, the Court now weighs the various private and public interests. The private interest factors that a court is to consider are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for compelling attendance of witnesses; (3) the cost of obtaining attendance of willing non-party witnesses; (4) the possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious, and inexpensive. The public interest factors that a court is to consider include: (1) administrative difficulties of courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with the governing law.
Private Interests Relative Ease of Access to Sources of Proof. Defendant argues that the evidence in this case, such as sources of documentary and testimonial proof, are largely located in British Columbia. Defendant indicates that the most important evidence will consist of the staff’s testimony about the camp’s policy and procedures, as well as testimony from the Royal Canadian Mounted Police who responded to the accident scene. Plaintiffs agree that the issue in this case is defendant’s policies and procedures, but they claim that the ease of access to corporate evidence and other documentary evidence regarding those policies and procedures is no greater in British Columbia than in Colorado. Plaintiffs also contend that the key witnesses in the case are not Canadian camp counselors, but rather American campers.
The Court agrees with defendant that a significant number of witnesses relevant to plaintiffs’ wrongful death claim are based in British Columbia. However, plaintiffs identify a large number of H.L.’s fellow campers who also have evidence relevant to the volleyball area and the circumstances leading up to H.L.’s death, which witnesses live in the United States. The Court agrees with plaintiffs that the American witnesses are likely to provide relevant testimony. Without making any determinations about the weight of the evidence at this stage, the Court finds that this factor is neutral.
Availability of Compulsory Process for Compelling Attendance of Witnesses. Many of the potential witnesses in this action are domiciled in Canada. Canadian citizens are beyond the Court’s subpoena power. See Fed. R. Civ. P. 45(c). The Court concludes that plaintiffs would be able to introduce testimony from the American witnesses in a trial held in British Columbia. The many difficulties in obtaining testimony and evidence located in foreign jurisdictions and this Court’s lack of subpoena power to compel testimony from plaintiffs’ out-of-state American witnesses weigh strongly in favor of dismissal on forum non conveniens grounds.
Public Interests Interest in Having Localized Controversies Decided at Home. While Colorado has some interest in determining the accountability of businesses residing in Colorado, it is far outweighed by British Columbia’s “substantial interest in holding businesses operating in [British Columbia] accountable.” See Loya v.
Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 665 (9th Cir. 2009) (discussing Mexico). The crux of plaintiffs’ complaint is that defendant, operating in British Columbia, caused them injuries, and British Columbia has a significant interest in ensuring that companies operating summer camps on its soil complies with British Columbia laws. This factor supports forum non conveniens dismissal.
Appropriateness of Having Diversity Cases Tried in a Forum That Is Familiar With the Governing Law. Because British Columbia’s tort law governs this litigation, a British Columbia court is better suited than an American court to hear this case. The Court finds this factor favors a British Columbia forum.
The Court finds that the private and public interest factors, when viewed as a whole, weigh in favor of a British Columbia forum for this litigation. The Court grants forum non conveniens dismissal, conditioned on (1) defendant’s agreement not to oppose plaintiffs’ filing of an action in British Columbia on statute of limitations grounds, and (2) defendant’s consent to having the action reinstated in this Court if British Columbia refuses jurisdiction.
For the foregoing reasons, it is ordered that defendant Young Life’s Motion to Dismiss for Forum Non Conveniens is granted.
CRITICAL THINKING:
As you read the decision, what ambiguous words must the court assume a particular meaning of to be able to reach its eventual conclusion?
ETHICAL DECISION-MAKING:
Would the universalization principle or the Golden Rule provideany strong argument against the ruling made by Judge Brimmer?