Decicco v. Dynata

317 A.3d 223

225 Conn.App. 725

Joseph DECICCO, Administrator (Estate of Nancy Loyd Olaivar Abad), et al.

v.DYNATA, LLC, et al.

(AC 45862)

Appellate Court of Connecticut.

Argued March 5, 2024

Officially Released June 4, 2024

Michael S. Taylor, Hartford, with whom were Brendon P. Levesque, Hartford, and, on the brief, Eric P. Anderson, Corinne A. Burlingham, Welsen T. Chu, pro hac vice, and Thomas P. Routh, pro hac vice, for the appellants (plaintiffs).

Scott Stirling, pro hac vice, with whom, on the brief, were James E. Nealon, and Edward P. Gibbons, pro hac vice, for the appellees (defendants).

Alvord, Elgo and Seeley, Js.

ALVORD, J.

₇₂₇The plaintiffs, Attorney Joseph De-Cicco, administrator of the estates of twenty-nine Philippine citizens,¹ Jehmar Bongcayao, Mostes B. Castillo, Sylvester B. Celades, Guidhavio C. Garzon, Jexter D. Generales, and Cecilline Sismar, appeal from the judgment of the trial court granting the motion of the defendants, Dynata, LLC (Dynata), Christopher Mark Fanning, and David Ian Weatherseed, to dismiss the plaintiffs’ complaint on the ground of forum non conveniens. On appeal, the plaintiffs claim that the court (1) applied ₇₂₈the wrong test to determine whether the Philippines was an adequate alternative forum, and (2) improperly dismissed this case on the ground of forum non conveniens. We disagree and, accordingly, affirm the judgment of the court.

The following facts, as alleged in the plaintiffs’ operative complaint, dated August 28, 2020, and procedural history are relevant to the resolution of this appeal. The plaintiffs commenced this action to recover damages for the wrongful death of twenty-nine adults who died on December 23, 2017, from carbon monoxide poisoning and asphyxiation followed by severe postmortem burns and charring, as a result of a four-story building fire in Davao City, Philippines. The fire occurred at a call center where the twenty-nine decedents worked as employees of SSI Philippines, Inc. (SSI Philippines).² On or before December 23, 2017, Dynata, a limited liability company with its principal place of business in Shelton, Connecticut, had secured contracts in the United States to perform work and to provide reports and data to its United States based clients on the basis of that work. Dynata outsourced the contract work to SSI Philippines to provide telephone, survey, polling, and data collection services from call centers in the Philippines. In December, 2017, Fanning was the president and chief executive officer of Dynata and a director and shareholder of SSI Philippines, and Weatherseed was the controller of Dynata and a director and shareholder of SSI Philippines.

In December, 2019, the plaintiffs commenced this action against the defendants. The operative complaint alleges ten counts of wrongful death and loss of consortium claims under theories of direct negligence and vicarious liability due to agency and joint venture relationships.

₇₂₉On March 20, 2020, the defendants filed a motion to dismiss the plaintiffs’ complaint on the ground of forum non conveniens, an accompanying memorandum of law in support of their motion, and an appended exhibit. The defendants also submitted the affidavit of Francisco Edralin Lim, a law professor and attorney admitted to the Philippine bar, with additional exhibits. In their memorandum of law, the defendants argued, inter alia, that the Philippines is an adequate alternative forum because the defendants (1) are amenable to service of process in the Philippines, (2) have stipulated to accept service of process in the Philippines, and (3) have agreed to litigate this dispute in the Philippines. Lim averred that under Philippine law "several fora exist" in the Philippines for the plaintiffs to bring this action.

On March 28, 2022, the plaintiffs filed a memorandum of law in opposition to the defendants’ motion to dismiss with appended exhibits. Further, the plaintiffs submitted the affidavit of Elizabeth Aguiling Pangalangan, a law professor and attorney admitted to the Philippine bar. The plaintiffs argued, and Pangalangan averred, inter alia, that the Philippines is not an adequate alternative forum because this action would be barred by the statute of limitations, and, thus, a Philippine court sua sponte would dismiss the plaintiffs’ action.

Thereafter, the defendants filed a reply memorandum in further support of their motion to dismiss and submitted a supplemental affidavit from Lim. The defendants maintained that "the statute of limitations in the Philippines has not expired, and neither the defendants nor the court sua sponte could raise the statute of limitations as a defense." The defendants challenged Pangalangan’s averments that a court sua sponte would dismiss the case as barred by the statute of limitations and relied on Lim’s averment that a Philippine court would recognize the defendants’ affirmative waiver of the statute of limitations and hear the plaintiffs’ action.

₇₃₀The plaintiffs filed a motion to strike Lim’s supplemental affidavit, arguing, inter alia, that it contained incorrect recitations of Philippine law. The defendants filed a memorandum in opposition to the plaintiffs’ motion to strike, and the plaintiffs filed a reply. A hearing on the defendants’ motion to dismiss and the plaintiffs’ motion to strike was held before the court, Bellis, J., on July 20, 2022. The court denied the plaintiffs’ motion to strike on September 12, 2022, stating in relevant part: "[T]he primary argument advanced by the plaintiffs in their motion to strike is that the defendants’ expert is incorrect in his analysis of Philippine law. As this court is not nearly as well equipped as a Philippine court to resolve issues of Philippine law, and the court is already dismissing the case on forum non conveniens … the court will allow the affidavit to remain in the record for the purposes of a potential appeal. Therefore, the motion to strike is denied."³

That same day, the court issued a memorandum of decision on the defendants’ motion to dismiss. The court applied our Supreme Court’s decision in Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001), which sets forth the following four step process for consideration by the court of a forum non conveniens motion to dismiss: (1) "whether an adequate alternative forum exists that possesses jurisdiction over the whole case"; (2) "all relevant private interest factors with a strong presumption in favor of—or, in the present case, a weakened presumption against disturbing—the plaintiffs’ initial choice of forum"; (3) "if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum"; and (4) "if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must ₇₃₁… ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice." (Internal quotation marks omitted.) Id., at 466, 782 A.2d 103.

In determining that the Philippines was an adequate alternative forum, the court stated in relevant part: "In the present matter, the defendants have agreed to accept service and litigate in the Philippines. Nevertheless, the parties’ experts disagree on whether the defendants are subject to jurisdiction in the Philippines. In his affidavit … Lim … contended that an action of this nature can be brought in the Philippines. Lim cited to Article 35 of the Philippines Code, which recognizes civil liability arising from a criminal act and Article 2176, which allows civil liability arising from fault or negligence under the concept of quasi-delicts. Further, Lim testified that the December 17, 2018 investigation resolution stated that the vicarious liability of the corporations among others ‘can be better threshed out in a separate civil suit between the parties.’

"Nevertheless, the plaintiffs produced an affidavit from … Pangalangan … which asserts that the Philippine court would have a duty to dismiss this action if it were filed in the Philippines because it is barred by the statute of limitations, even if the defendants represent that they will waive any applicable statute of limitations in the Philippines. Pangalangan also testi- fied that the Philippine court will dismiss this case pursuant to its doctrine of forum non conveniens because Dynata is an American corporation with its principal place of business in Connecticut.

"In Lim’s reply affidavit, he stated that the statute of limitations has not expired because it was paused when this case was filed in Connecticut and will only begin running again if Connecticut dismisses the case. Additionally, he stated that under Philippine law, a party ₇₃₂can waive a defense and voluntarily expose itself to a lawsuit. Further, the defendants have agreed to litigate in the Philippines, therefore, they would not invoke the doctrine of forum non conveniens to then dismiss the case in the Philippines.

"In Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978), the Second Circuit Court of Appeals was faced with a similar issue where the district court, in deciding whether dismissal was warranted on forum non conveniens grounds, received conflicting expert opinions regarding whether the foreign court had jurisdiction over the matter. The Second Circuit ultimately dismissed the case on the condition that the defendants would consent to jurisdiction in the foreign court and if the case was dismissed from the foreign court, the plaintiffs could move to restore the action in the American court. Id., at 1166. The court stated that, ‘[w]hen the alternative forum is foreign, particularly where … it is a civil law country, our courts have difficulty discerning whether a non-resident defendant really would be subject to jurisdiction in the foreign country without his consent. Indeed, the court may receive conflicting expert opinions on this...