Nowak v. Tak How Investments, Ltd.

94 F.3d 708 (1st Cir. 1996)

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Nature of the Case

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Facts

Tak How (D) is a Hong Kong corporation with its only place of business in Hong Kong. Its sole asset is the Holiday Inn Crowne Plaza Harbour View in Hong Kong. D has no assets, shareholders, or employees in Massachusetts. Sally Ann Nowak ('Mrs. Nowak') was at all relevant times married to plaintiff Ralph Nowak (P) and was the mother of their two children. The Nowaks lived in Marblehead, Massachusetts, and P was employed by Kiddie Products, Inc., which has its place of business in Avon, Massachusetts. P does extensive business in Hong Kong. P customarily made two business trips to Hong Kong each year, accompanied by his wife on one of those trips. Kiddie Products and D agreed to the discount for rooms and wrote a letter confirming the arrangement based on a minimum number of room nights per year. All reservations in Hong Kong were made at the Holiday Inn until instructed otherwise. Since 1992, Kiddie Products employees have stayed exclusively at the Holiday Inn. In June 1993, the Holiday Inn telecopied Kidde with a message announcing new corporate rates and other promotional materials. Additional information was requested, and the hotel promptly responded. In July 1993, after a series of exchanges by telecopier, Kidde sent a reservation request to the Holiday Inn for several employees for September and October 1993. One of the reservations was for Mr. and Mrs. Nowak to arrive on September 16. On September 18, while the Nowaks were registered guests at the hotel, Mrs. Nowak drowned in the hotel swimming pool. The specific facts surrounding her death are not relevant here. It is uncontested that in 1992 and 1993, prior to Mrs. Nowak's death, D advertised the Holiday Inn in certain national and international publications, some of which circulated in Massachusetts. In addition, in February 1993, D sent direct mail solicitations to approximately 15,000 of its previous guests, including previous guests residing in Massachusetts. P filed this wrongful death action in Massachusetts state court in June 1994. D then removed the case to federal district court and filed two motions to dismiss -- one for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) and the other for forum non conveniens. The district court initially denied the motion to dismiss for forum non conveniens, and then, after allowing time for jurisdictional discovery, issued a memorandum and order denying the Rule 12(b)(2) motion. The district court granted D's motion for certification of the jurisdictional issue, the appeals court denied D's request for a stay of the district court proceeding pending appeal. Believing that a resulting judgment would not be enforceable in Hong Kong, D did not answer the P's complaint. The district court entered a default judgment against D for $3,128,168.33. P appeals the denial of its Rule 12(b)(2) motion and its motion to dismiss the case for forum non conveniens.