Ponder v. Prophete

RESPONSE

D. Kan.February 12, 2019

Page 1 of 5 CASE NO. 2:16-CV-02376-CM-GLR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIAN LAMAR PONDER, Plaintiff, v. DONALD SONY PROPHETE, Defendant. CASE NO. 2:16-CV-02376-CM-GLR DEFENDANT’S MOTION FOR APPLICATION OF DOMINICAN REPUBLIC LAW AND INTEGRATED BRIEF IN SUPPORT Defendant Donald Sony Prophete (“Defendant”), by and through his undersigned counsel, respectfully submits this Motion in response to the Court’s Memorandum and Order requesting the parties respond to the issues of “why or why not Dominican Republic law should apply to this case” and the “relevant law from the Dominican Republic.” (Dkt. 80.) Defendant submits that Dominican Republic law should apply to this case1 and that Dominican Republic law provides recovery under its civil code for the tort claims Plaintiff asserts here. FACTUAL BACKGROUND Plaintiff in this action seeks damages for tort claims of battery, assault, and false imprisonment allegedly arising out of an incident that occurred in the Dominican Republic. See Dkt. 80 at 4 (this Court recognizing “[t]he alleged torts were committed in the Dominican Republic”); Compl. at ¶¶ 11-15, 16-25, 26-30 (alleging claims for battery, assault, and false imprisonment). 1 Defendant also intends to file a separate Motion to Dismiss for Forum Non Conveniens, arguing this case should be transferred to a more convenient forum, here, the Dominican Republic. Case 2:16-cv-02376-CM Document 81 Filed 02/12/19 Page 1 of 5 Page 2 of 5 CASE NO. 2:16-CV-02376-CM-GLR QUESTION PRESENTED Does Dominican Republic law apply to the tort claims alleged in this case? ARGUMENT As this Court recognized in its Memorandum and Order, “a federal court sitting in diversity must apply the substantive law of the state in which it sits, including the forum state’s choice-of-law rules.” Boyd Rosen & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351, 1352-53 (10th Cir. 1997); see also Phil. Am. Life Ins. v. Raytheon Aircraft Co., 252 F. Supp. 2d 1137, 1142 (D. Kan. 2003). Here, the forum is Kansas, and as such, the Court must apply Kansas choice-of-law rules. Kansas applies the Restatement (First) of Conflict of Laws to address choice of law issues. See, e.g., In re K.M.H., 169 P.3d 1025, 1031-32 (Kan. 2007); Raskin v. Allison, 30 Kan. App. 2d 1240, 1242 (Kan. App. 2002). For cases sounding in tort, the law is clear: “Kansas courts apply the law of the state where the tort occurred.” Phil. Am. Life Ins. v. Raytheon Aircraft Co., 252 F. Supp. 2d 1137, 1142 (D. Kan. 2003) (citing Ling v. Jan's Liquors, 237 Kan. 629, 634 (Kan. 1985)). “[T]he lex loci delicti rule is well established under Kansas law[,] and there is no indication that Kansas intends to abandon that rule.” Raskin, 30 Kan. App. 2d at 1243; see also Miller v. Dorr, 262 F. Supp. 2d 1233, 1238 (D. Kan. 2003) (“Kansas follows the rule that the law of the state where the tort occurred, lex loci delicti, should apply. . . . This rule is well established under Kansas law and there is no indication that Kansas intends to abandon the rule.”); Ling v. Jan's Liquors, 237 Kan. 629, 634 (Kan. 1985) (“The rule in this state is that the law of the state where the tort occurred -- lex loci delicti -- should apply.” (citations omitted)). The result is the same when the lex loci delicti is a foreign country. Raskin, 30 Kan. App. 2d at Case 2:16-cv-02376-CM Document 81 Filed 02/12/19 Page 2 of 5 Page 3 of 5 CASE NO. 2:16-CV-02376-CM-GLR 1242 (“We have no hesitation in finding that the lex loci delicti rule would apply in tort cases notwithstanding the injuries were incurred in a foreign country.”). Plaintiff in this action seeks damages for tort claims allegedly arising out of an incident that occurred in the Dominican Republic. See Dkt. 80 at 4 (this Court recognizing “[t]he alleged torts were committed in the Dominican Republic.”). The lex loci delicti, the place of the alleged wrongdoing in this case is the Dominican Republic. Therefore, under Kansas’s choice of law analysis, because Plaintiff alleges torts occurred in the Dominican Republic, Dominican Republic law applies to this case. Several other trial courts have reached this same conclusion under analogous situations finding Dominican Republic law applies in tort cases where the alleged wrongdoing occurred in the Dominican Republic. See, e.g., Goldstein v. Hard Rock Café Int’l (USA), Inc., No. 6:12-cv- 148, 2012 WL 13035390, at *7 (M.D. Fla. Sept. 12, 2012) (determining “the law of the Dominican Republic would apply in this [negligence] case” based on a slip-and-fall that occurred at resort in the Dominican Republic); Perez-Lang v. Corporacion De Hoteles, S.A., 575 F. Supp. 2d 1345, 1352 (S.D. Fla. 2008) (determining that Dominican Republic law applies in a lawsuit “alleging personal injury and negligence due to an accident at a resort in the Dominican Republic”); Dominican Republic v. AES Corp., 466 F. Supp. 2d 680, 693 (E.D. Va. 2006) (analyzing choice of law under Virginia’s “place of the wrong” standard for tort actions and determining that “the law of the Dominican Republic applies to Plaintiff’s nuisance, civil conspiracy, and aiding and abetting claims” for activities that occurred in the Dominican Republic) ; see also Tucci v. Club Mediterranee, 89 Cal. App. 4th 180, 194 (Cal. App. 2001) (affirming the trial court’s decision that, even under California’s more stringent “governmental Case 2:16-cv-02376-CM Document 81 Filed 02/12/19 Page 3 of 5 Page 4 of 5 CASE NO. 2:16-CV-02376-CM-GLR interests” conflicts of law analysis, Dominican Republic law applied to a lawsuit alleged by a California employee injured while working a resort in the Dominican Republic). Plaintiff cannot complain that his claims should not be governed by Dominican Republic law. Mr. Ponder voluntarily vacationed in the Dominican Republic, and as the Kansas Court of Appeals has made clear, a plaintiff cannot argue “the application of [foreign] law is unfair when they voluntarily vacationed there.” See Raskin, 30 Kan. App. 2d at 1246. As will be discussed further in Defendant’s Motion to Dismiss for Forum Non Conveniens, Dominican Republic law provides recovery for the tort claims Plaintiff alleges here under D.R. Civ. Code Art. 1382. See D.R. Civ. Code Art. 1382; Pallano v. AES Corp., 2011 Del. Super. LEXIS 313, at *16 n.37 (Del. Super. July 15, 2011) (recognizing Dominican Civil Code section 1382 provides for recovery of personal injuries based on intentional wrongdoing); see also Gianocostas v. RIU Hotels, S.A., 2011 Mass. Super. LEXIS 236, at *12-13 (June 27, 2011) (discussing that “both attorneys in the Dominican Republic state that the Dominican Republic recognizes and permits litigation on the subject matter in dispute” and that “Articles 1382 through 1384 of the Code provide the foundation for actions for damages to redress tortious conduct”), rev'd on other grounds Gianocostas v. Interface Group-Massachusetts, Inc., 450 Mass. 715 (Mass. 2008). CONCLUSION Plaintiff’s claims here should be governed by Dominican Republic law as the alleged tortious acts all occurred in the Dominican Republic. Moreover, Dominican Republic law provides redress for Plaintiff’s tort claims under its civil code. Case 2:16-cv-02376-CM Document 81 Filed 02/12/19 Page 4 of 5 Page 5 of 5 CASE NO. 2:16-CV-02376-CM-GLR MANNING, GROSS + MASSENBURG, LLP By: /s/ Daniel B. Rousseau Daniel B. Rousseau, #78627 1405 Green Mount Road, Suite 400 O’Fallon, IL 62269 Telephone: (618) 277-5500 Facsimile: (618) 277-6334 Email: drousseau@mgmlaw.com ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE M. Elizabeth O’Neill NC Bar No. 24039348 Pro Hac Vice Admitted Womble Bond Dickinson (US) LLP One Wells Fargo Center, Suite 3500 301 South College Street Charlotte, NC 28202-6037 Telephone: (704) 350-6310 Email: Elizabeth.ONeill@wbd-us.com ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE CERTIFICATE OF SERVICE I certify that I have served a copy of the foregoing Defendant’s Motion for Application of Dominican Republic Law and Integrated Brief in Support via this Court’s CM/ECF system, which effected service through Notice of Electronic Filing to all counsel of record as follows: Brian L. Ponder, Esq. Brian Ponder, LLP 200 Park Avenue, Suite 1700 New York, NY 10166 Dated this 12th day of February, 2019. By: /s/ Daniel B. Rousseau ATTORNEY FOR DEFENDANT DONALD SONY PROPHETE Case 2:16-cv-02376-CM Document 81 Filed 02/12/19 Page 5 of 5