Jim Boyle Jan. 28, 2015, 1:28pm


PHILADELPHIA - Attorneys representing a Northampton County family have filed an

intent to appeal a federal judge's decision to dismiss their lawsuit against Ritz-Carlton Hotels that claims the company negligently failed to properly perform a background check on one of its bellhops before he allegedly sexually assaulted their underage daughter.

U.S. District Judge Jeffrey Schmehl dismissed the suit without prejudice on Jan. 16 on the grounds of forum non conveniens. In his memorandum accompanying the order, Schmehl acknowledged that jurisdictional consideration is usually deferred to plaintiffs, but all of the primary witnesses, evidence and events in question occurred in the Cayman Islands.

"The Court finds that trial of the action in this district would result in an undue burden to the defendant out of proportion to plaintiffs' convenience," Schmehl writes. "The vast majority of sources of proof and liability witnesses are located in the Cayman Islands."

The appeal was filed Jan. 26 with the U.S. Court of Appeals for the Third Circuit, according to court documents. The parents, who are unidentified in the complaint and given the pseudonyms John and Jane Doe, seek compensatory and punitive damages from the luxury hotel chain for the physical and psychological damage allegedly suffered by their daughter, identified as Mary Doe.

According to Schmehl's memorandum, the family took a private jet to the Cayman Islands in March 2013 for the vacation, and again in August 2014 for the criminal trial of the accused rapist, a former bellman named Iyilla Delmar Spence.

A seven-person jury cleared Spence of all charges on Sept. 1. He admitted to the jury that he had sexual encounters with the girl but did not know she was under the age of consent and did not force himself on her.

Schmehl wrote that it would be less inconvenient for the family to travel again to the Caymans for a civil trial than to order witnesses who may not have proper international travel credentials to fly to Philadelphia. Completing the discovery process for the trial would also mean invoking the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

"This Court would have to issue letters of request (rogatory letters) to the consulate in the Cayman Islands, directing the consulate to compel the depositions of any unwilling witnesses in the Cayman Islands," the judge wrote.

"This procedure would put a tremendous strain on the efficiency and resources of the Court as well as the parties and would not be necessary if the case proceeded in the Cayman Islands."

According to the complaint, the family arrived at the Ritz-Carlton Grand Cayman Hotel on March 24, 2013, and checked into adjoining second floor rooms. They first encountered Spence a few days later when the parents asked for restaurant recommendations. He spoke to Mary later that day and complimented her shirt, the civil suit says.

The next day, Spence allegedly assisted Mary’s purchase of a pack of playing cards, escorted her to the elevator, then offered a tour of the hotel. During the tour, the complaint says, Spence grabbed Mary’s buttocks, and she jumped and told him “no.”

When they reached the platform on the second floor of the stairwell, he backed Mary to the wall and sexually assaulted her, according to the complaint. The sound of someone approaching forced Spence to stop and run off, telling Mary to meet him the next morning.

The following morning, Mary did not meet Spence, but she did accompany her father to the lobby on his way to scuba dive. Spence approached Mary, and she spoke to him briefly and returned to her room, according to the complaint.

The suit says that other staff members knew of Spence’s intentions and did nothing to warn the plaintiffs. In fact, the complaint says, another employee left a message on her room phone that she had to pick up a package in the lobby.

On her way down, Spence encountered Mary, gave her a gift, then accompanied her back to her room where he sexually assaulted her again, the suit says.

At dinner that night, Mary reported the assault to her parents, who immediately contacted the local police department. During questioning, Spence allegedly denied being in contact with Mary or entering her room. However, the complaint says, security footage and DNA tests of Mary’s clothing and bedsheets contradicted him.

The plaintiffs say that the staff and management at Ritz-Carlton’s Grand Cayman Hotel had a duty to ensure their guests’ safety and prevent foreseeable harm to Mary. According to the complaint, the defendants negligently allowed Spence to socialize in a suggestive way with Mary and failed to provide diligent security.

As a result of the alleged recklessness, Mary has endured ongoing pain and suffering both physically and mentally. Her family has to provide funds for the required medical care Mary needs to cope with the incident, according to the complaint.

The plaintiffs are represented by Mark W. Tanner of Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, LLP in Philadelphia.

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