liza court my name is andrew hall i have the pleasure of representing the different rico family this case involves a does dismissal under former and convenes of a wrongful death action filed against mar american citizens residents of virginia at the time in maryland against mary out whose home kind of quarters are in maryland the gravity of the complaint was that the planning that mary ott did with regard to the anticipation of terrorist bombings and their control over their franchise system in that is subject matter was deficient and as a proxy result of that deficiency mr de frederico lost his life on september twentieth two thousand and eight in the bombing of the marriott and islam about pakistan the trial court's decision dismissing this case and sending it back to pakistan lacks the language that reflects the hovey presumption in favor of convenience of an american citizen suing in an american courtroom and as a result it goes on extensively starting with referring to a different issue with it is the simple presumption of a normal plaintive in selective court without the heavy presumption distinction that having presumption distinction and brings with it a required analysis that would as require the court to determine that the old press of this investigation to marry  is out of all proportion to the plaintiff's convenience you find no where in the trial judge's decision any reference to that standard and so this court i think is in the identical circumstance as the eleventh circuit when it dealt with this very similar subject not in the context of bombing but rather in the context of that accident occurring at the last when u s marriott ocean and golf resort in mexico in which the court said the language that is required in order to do the analysis doesn't show any recognition of the stream circumstances or manifest extreme injustice that would merit denying a u s citizen access to its court and then we go into the exact analysis the court did in their other places in the opinion beyond that fundamental departure from law by not even referring to the correct stamp and just deal with a couple of them we pointed out to the court that there was a non waiver will statute of limitations that made the pakistan form unavailable the courts response to that was the decision not to sue in pakistan was essential e a strategic one and as a result it would be wrong to allow a plaintive to bootstrap themselves more nuanced point effect but regardless one of the is the question then becomes a further question of was there a practical barrier to pakistan that made that form unavailable the practical barrier because terribly important because it is almost as if the judiciary is a government separate apart from the executive in this case the state department issues warnings to american citizens abroad the warnings the state department issues basically recognises a number of things that are almost in controversial over the last four years prior to the fall and there were over eleven thousand terrorist attacks in pa congregate american should have void going carried even to the point of declaring certain locations off limits to u s personnel and one of the things that we need to remember is who was mr he wasn't a businessman who voluntarily entered pakistan in order to seek for selective and that nation nor was he a tourist rather he was an employee of the united states state or he was assigned there so he's there under unusual circumstances he's lose his life in a bombing the third bombing of this hotel in a relatively short period of time the bombings risk is so extreme that mary out announces the reserve all of the aspects regarding terrorist avoidance and bombing in what to do in the those circumstances to itself out of its headquarters in maryland in that context when we moved into is there a real form available the question is there a real form of ill will when all of the witnesses would essentially be having to do exactly what the state department as you should not do as a risk  is the analysis of avila form limited itself just to the cause of action and is that burden lolis the trial court said only because it's a legal analysis or do you consider in that context as additional factor whether the very risk of being at that court is a threat to your safety and i think the latter has to be the standards matter first impression for you and it doesn't make any sense that we would basically say that the price to litigate is ones o that seems to me the type of an availability that that rule should contemplate but moving event into the private factors the court was obliged to recognize and measure the relative convenience between the parties understanding that at the end of the analysis was had to show that there would be an extreme injustice to mariya not to tip of the scales not a but rather extreme so far that it would warrant essentially almost a minor injustice to the point that analysis didn't occur that standard didn't occur in the opinion at all in going through the analysis for example there were a number of factors relative to the litigation of the court looked at for example the court referred to the investigation of the bombing itself they said that's an on the ground type of thing but this case involved the planning advance planning to avoid that circumstance and the fires and the aftermath of a bombing that are normally attended to a bombing that anybody familiar with that to have a circumstance w all of that plan he every bit of it from the analysis of the hotel its plans etc exist at the marriott offices in maryland the people they did it were in maryland the court recognizes that and says that so but i'm going to now weigh the number of people that were involved in the aftermath ignoring the fact that most of our dead is the people who were at the scene in the vicinity of the bombing died that day and they say well we're just going to weigh those two that's not the type of weighing to demonstrate unusually extreme circumstances we have two bodies of evidence that exist one in maryland justifying retention one in pakistan so essentially what we're saying is which controls over the other well the analysis should have reached the conclusion in order to justify transfer resources of mariette you don't find that in the opinion although cases suggest that that is the appropriate analysis where they do is they talk about the expense of translating documents and heritage ignoring the fact that the official language of pakistan  can we get back to the statue limitations yes i said and i mean to understand why it is in response to judge hamilton's question he said that at the time he filed a complaint the pakistanis that your limitations had damages every bit of damage evidence is the united states doesn't transport to pakistan and it's all the really good advice a trial judge says well you would have a right to appear a pakistani please the court my name is pauli are ever present appellee a married international inc i like to spend a majority of my twenty minutes focusing on what i believe the two main arguments that the palin has raised is alleged lack of deference by the opinion as to the level of deference that he does provide it and secondly i want to address the fear factor which is the second part of their analysis where they claim that the court again abused its discretion by not properly considering the appellant's fear of going to alternative form i would also like to address a peripheral argument that's been raised the statue limitations are in and is available when the statute of limitations had run dry well first of all the there it's not a heavy burden to show an alternative form is available the tank court the supreme court case and piper have found it's not heavy  then only have to show that the alternative form the parties can come before it and that gets the statue limitations argument and that only the most perilous obstacles that would prevent any type remedy would be deemed to be inadequate so to address your point now before i get back into the statue limitations issue the district court rightfully acknowledged that the plaintiff selected to allow that statue limitations to run now in raising this argument i find it interesting that the plaintiffs by asking this court to now delve into the pakistani limitation act has now actually undermined one of the main factors in the public interest test which is specifically to avoid having this court delve into statutes local ordinances local ordinances in statues and so the court is being asked to do something now which weighs in favor of my client but to get to your point you talked about the limitations act and in the last argument you said get to the point where it's favorable to you what hasn't been raised by the appellant is the exceptions to the limitation act now those weren't discussed in oral argument because they were never briefed before judge titus and judge ties didn't have the ability to go in read through the pakistani at can figure out all these exceptions i have there are two number one a party there is a tolling of a statue imitations for any party that does not come under the administration of the pakistani government marriott doesn't own this hotel marriott doesn't do business in pakistan this is a hotel owned and operated by a pakistani entity marriott has not operated in done business in pakistan the the statue of limitations continues to toll as to marriott until the time they're brought in a court there and mary has agreed to be subject to process and to defend themselves in pakistan that's the first exception that was never discussed the second is that there is a six year statute of limitation for vicarious liability claims that is clear what this is case this case is all about this case is not about mary it's inadequate security protocols as a matter of fact in their complaint big knowledge marriott implemented a crisis management program conducted training and tabletop exercises and developed advanced training programs for security personnel in high risk locations and indeed established a setback terrier barrier terra barrier at these llama bot hotel what their claim is that these protocols were not properly carried out the night of this horrific event on september twentieth two thousand and eight their claim is that there was a failure by pakistani employees local security local government contractors hotel management they failed to carry out these protocols and in doing so they're not basing their claim on that they're basing that claim on the fact that marriott through its corporate offices failed  to provide the necessary safeguards to protect the people living in the hotel in pakistan was that is they've got nothing to do with what the pakistani official did or did not do in all due respect judge hamilton and even in the memorandum by judge titus in the complaint there is a claim for wrongful death survivorship in vicarious liability they set forth a vicarious liability claim that being that married is vicariously liable for the alleged acts and omissions by people on the ground in pakistan i don't think that's as still waiting for you to tell me how the district court addressed that that is how they addressed the presumption of convenience in favor of the home forum adopted by the plaintiffs yes on page four of the opinion judge titus states as follows the court usually gives less deference to a plaintiff that has not chosen to bring the case and its home country but this lack of deference is mooted i repeat that this lack of deference is mooted when the defendant is a resident and citizen of the form he seeks to have declared inconvenient marriot was in the form and they were the one seeking to declare inconvenient so any less deference afforded to the plaintiff is mooted implicit in inherent in that not really was that the proposition the supreme court has said in the sonic him case that a pardon seeking just deference level has to be given dispositive fact this court there is nowhere in this opinion your honor that suggests the judge titus applied any lower level of deference as a matter of fact in their brief just that the opinion implies a lower level they don't cite anywhere in the record that says a lower level of deference was actually applied they simply say it implies a lower level but then offer no support that this implication impacted the court's analysis or created an abuse of discretion but the problem is you can see that their interpretation is all about the language of what is normally the there is absent that particular language i do not see the law as the court to read in that there's been abuse of discretion the fact that the court chose to identify when certain deference levels are mooted does not in my opinion suggest an of discretion where the truck court has sound discretion in ruling pawn a considerable number of factors in determining whether the current venue is is convenient let me ask you this question to you the opposing counsel didn't cite are plaintiffs in that case the go to agent and to have to litigate the cause of action over their well i think one of the issues they call it ended up that the ends of justice will not be served in this case should it be dismissed  and the weak case was one that where the court analyzed that the attacker who would intentionally went attack these people was still at bay and was potentially pose a risk to these individuals but that was again one of those factors your honor how is that different from this case well that again the greedy standard is different than the fourth circuit applies tang court and i know justice a mindful justice gregory being on the tank panel but this district you honor has never ever considered fear as part of the analysis as to whether there is an adequate alternative then you have never factored in judge titus recognize that so i don't see how there could be an abuse of discretion by not considering fear and that became the controlling issue and we fear it was the controlling issue and we so to distinguish it your honor it was the fact that they were fearful of going over at that point was a separate standalone element and the court made the emotional tie to the deference standard there this court has never done that every other circuit has never done that we just had following judge titus's opinion the decision in california the hardy case almost on line with this case u s citizens killed in pakistan may ruin tang the that would be  this case under the framework which is set for a district court must determine whether to be altered or is one available through adequate and three more convenient in light of the public and private in tang where they have identified that fear is a controlling factor i have not identified any other case besides where they have discussed fear they have tried to raise it and again in the hearty case in california they that was their main argument that they they were fearful of going to pakistan and the court said that fear alone is not an adequate reason what's hang what cases ventured on the harty case who was cited in our brief  that came out about to i think a week after judge titus is a painting and that did a on point public and public private interest factors analysis i have not seen anywhere in the fourth circuit and judge titus began a fight if i might deference the fourth circuit does not have that but judge titus did recognize here that fear is is not part of the fourth circuit analysis nevertheless the burden of proving an adequate form is low and the fourth circuit has never found that a fear of violence in a foreign country alone creates an inadequate form so judge titus obviously  peers my time is close to and i will also simply with respect to the public and private interest factors i think the district court did a very fair and balanced analysis of all those factors at times the court and at times the court thought favored merrier they certainly focused on the sources of proof and again getting back to that to the point of this case the court recognized that the appellant was trying to bring to the doorstep of marriott in maryland a terrorist attack the worst ever in pakistan to be litigated in maryland when it was clear that all of the critical evidence was going to be on the ground in pakistan all of the critical facts all the critical witnesses let me just say it this way there were fifteen hundred people in the hotel that night this attack was designed to kill the prime minister of pakistan fifty six people die thirty of them were hotel people many of them are roic lee trying to save the people in the hotel so twenty six people patrons of the hotel died unfortunately mr de for rico was one of the ninety six people on ninety six percent of the people that out of that hotel that clearly there were protocols in place that worked marriott would need to develop those mary we need to get that evidence mary would need to be able to get the facts the testimony evidence the district court clearly recognized under one of the public or other private factors that they can't subpoena anyone from pakistan the court lacks the subpoena power and fight it with respect to the some of the public interest factors again the avoidance of unnecessary problems of conflict of laws but as i understand this case they are not complaining about what pakistani officials did or did not do they're saying that marriott hotel had insufficient security plans and procedures available to protect people living in that marriott hotel in pakistan it's got nothing to do with pakistani low well it to the extent that that's an airplane that they're saying that all those procedures were developed at marriott's home office in maryland absolutely judge titus recognize that they believe their case can be won or resolved by taking the deposition of one official and marilyn the deposition one official marian met and marilyn will get them one thing a day a description and imagination not too much intelligence to assume that life was blown up that procedures could possibly have been inadequate that would be for jury to determine and the jury would need to have facts on the ground the jury would need to have an understanding of right in the back there's no dispute that the barrier was there their dispute again while they frame it your honor as now we're challenging we're challenging the protocol the complaint is grounded upon the following the hotel security was negligent in addressing the situation the hotel security was negligent in failing to alert hotel guests resulting in mr d federico death well hotel hotel security  marriott doesn't own it none of their staff are over there these are all pakistani individuals marriott manage the hotel marriott it is a franchised hotel i'm staying that of which they didn't own it but they managed the hotel now they didn't they had an owner manager over there but i would just i would conclude in this fashion as as the tank court has determined and ruled the form one convenes determination is committed to the sound discretion of the t palin challenge to levels that deference challenge and a fear factor the fear factor they claim is one of the proportion factors that this court must consider and because they didn't it's an abuse of discretion but the fourth circuit has never done that so i can't see how they can argue that there is been an abuse of discretion when a court considers all the relevant public and private factors and there's a fair balancing this court must give substantial deference court and the twenty page opinion by judge titus covers every single issue balance is equally between both sides at times far in times actually says married overstated its argument i don't believe them they've overstated and still did the balancing test approach thank you not fair and it is not result who's going to hear the litigation how can we say that the use discretion when you look at all the factors that likelihood how this case is going to be tried witnesses number of witnesses standard abuse of discretion is found whenever the core misapplies the legal standard applicable in the analysis or fails to conduct the requisite review mandated by law and because the very first standard which is the high presumption the level of the this to the defendant and the level of harm to the plaintiff v de minimus that standard which is repeated throughout the cases that's the standard and it's not in the doj is decision he didn't he used different language and the departure from that standard makes it a bit abuse of discretion the statute of limitations in the failure to address that correctly makes it  discretion let me just talk to the statue of patience for one small second mary out in this maybe the general go to judge how old his point is well when one wants to rely upon foreign law they must provide a notice of intent to rely upon foreign law that wasn't done it was done by marriott that first came up as an exhibit to the motion so what i'm saying to you is that in dealing with this case and going through all those the process that gets us to the conclusion judge hamilton had some questions of two opposing counsel regarding controlled i didn't violate the court to the joint appendix of page one seventy four in which mary i described its own control over this process is not an abstract statement it says all of this effort is directed at marriott's corporate security offices instead of requiring general manage to make risk assessments and implemented appropriate countermeasures without support mariam provided professional analysis and direction mary as training program produce a cure you were to sit setter it's all that mary had doing what he did and he did that in maryland it is that related to the they could theoretically do that and that's it would just be those would be the third party orders that marianne hires to review corporately that you get is referred to by mr orlov and there are third party orders so nobody no do it you mean to tell me is irrelevant whether or not on that day i had ten people supposed to be there for the guard and in fact that day there were one person there the women and one person there it's a hypothetical you say that think we never get there we don't know how do you know and the reason we never get there is if because mary has planning documents and ministration if it proves that they did what they were supposed to do in terms of having a protocol that dealt with the anticipation of the fire and the effect of the aftermath of a bomb then they did with their supposed to do for a planning standpoint cases over mary i would in other words this is not a question that they will say we did a great job they did a bad job if they did a great job that's all there the case is over we're not seeking any claim to do their vicarious liability for what the people that day in the hotel did or didn't do rather did the plan tell them what they should do and went on this yes he did it as he did i mean let me ask you this to the extent as judge greg resolute to the extent that testimony from people in pakistan would be available and the plaintiffs have chosen the for the united states right and those pakistani people are not subject to deposition so for that would to go to the merits of their case it wouldn't go to the convenience of them or that's what i would think i mean but let me just go back to one of the thing i think that whenever we have litigation that involves an event for multi national that because that's really we're talking about there's a large piece of that occurs here it's forged piece there is there we have this type of issue and this is why the but counsel when he relied upon tang in his argument neglected to remember the very start of the argument in tang was these were chinese nationals suing in maryland so they weren't entitle to the brief here and google recognizes a real problem counsel argued well it dealt with those a lone gunman but i'd invite you know twenty two of the brief or council where the of the