PHILADELPHIA – Marriott is seeking to the transfer litigation filed by a New Jersey man concerning injuries he claims to have suffered as a result of falling in a guest room bathtub in one of its hotels in Oregon, to a federal court in the latter state.
Joseph Berger of Delran, N.J. initially filed suit in the Philadelphia County Court of Common Pleas on April 27, versus Marriott International, Inc., of Bethesda, Md.
The case was then removed to the U.S. District Court for the Eastern District of Pennsylvania on May 28.
Berger says he was a business invitee of Marriott and staying in its Portland Marriott Downtown Waterfront Hotel on Nov. 3, 2018, when he fell in the bathtub of Room 512, due to alleged carelessness and negligence of the defendant.
Berger asserts Marriott failed to maintain the bathtub’s surfaces in a safe condition, failed to install slip-fall prevention and/or slip-fall mitigation fixtures and materials in the bathtub, failed to install grab bars in the bathtub and failed to warn guests that shower curtain rods were not properly installed, among other claims.
According to the lawsuit, Berger claims he suffered bodily trauma, pelvic and spinal strains and sprains, left knee trauma, left knee lateral meniscus repair, post-traumatic stress disorders and aggravation of existing gastrointestinal disorders, among numerous other injuries.
UPDATE
Marriott International filed a motion to transfer venue in the case on June 30, seeking to have the matter heard in an Oregon federal court.
“All of the events upon which plaintiff’s claims are based occurred in Portland, Oregon, which is located in the District of Oregon. Plaintiff alleges that he ‘fell in the bathtub of [Marriott’s] guest room 512’ in the Portland Marriott Downtown Waterfront Hotel, 1401 SW Naito Parkway, Portland, Oregon,” the motion reads, in part.
“All of plaintiff’s claimed injuries arise out of this alleged fall in Portland, Oregon. Based on plaintiff’s own admissions in the complaint, all of the acts or omissions giving rise to the claim occurred in Portland, Oregon, which is located in the District of Oregon. Conversely, no events occurred in Philadelphia, and no hotels in Philadelphia, or Pennsylvania have anything to do with this alleged incident. Thus, plaintiff could have properly commenced this lawsuit in the U.S. District Court for the District of Oregon.”
In weighing the public-private factors from the U.S. Court of Appeals for the Third Circuit action Jumara v. State Farm Insurance Co., the hotelier argued in favor of transferring the case.
The public factors are enforceability of judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two forums resulting from court congestion; the local interest in deciding controversies at home; the public policies of the forum and the familiarity of the trial judge with the applicable state law in diversity cases.
The private factors are plaintiff’s forum preference; defendant’s forum preference; whether the claim arose elsewhere; convenience of the parties; convenience of the witnesses and location of books and records.
“Here, all of the operative facts giving rise to plaintiff’s claims occurred in Oregon. As such, Oregon law would likely apply to plaintiff’s claims, and this factor also weighs in favor of transferring this matter to the District of Oregon.”
“In sum, this premises liability lawsuit should be transferred to the District of Oregon. Second, the majority of the private and public interest factors that this Court may consider weigh in favor of transferring the case to the District of Oregon.”
For a count of negligence, the plaintiff is seeking damages in excess of $50,000, plus interest and costs.
The plaintiff is represented by Steven E. Wolfe in Holland.
The defendant is represented by Michael Melusky and Paul K. Leary Jr. of Cozen O’Connor, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02508
Philadelphia County Court of Common Pleas 200401369
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com