By Neil Hartnell
Tribune Business Editor
Sandals is urging a New York judge to dismiss a $30m sexual assault claim because it occurred at its Nassau resort and should therefore be heard by a Bahamian court.
US attorneys for Sandals Resorts International, in a May 17 letter to the southern New York federal court, argued that John Pascarella and Ashley Reid Pascarella – whose allegations received widespread TV and print coverage on both sides of the Atlantic – had signed a document agreeing that all legal disputes with the resort chain be resolved in The Bahamas.
They added that the couple, who claim Mrs Pascarella was sexually assaulted by Moral Adderley, the butler assigned to them during their stay at Sandals Royal Bahamian, had been shown this clause on both their booking invoice and guest registration card.
It stipulates that “all claims” against Sandals “shall be governed solely by the laws of Bahamas as the exclusive choice of law, and further that the courts of Bahamas shall be the exclusive venue/forum for any proceedings, claims or litigation whatsoever”.
In addition, Sandals’ attorneys argued that The Bahamas was the most appropriate judicial forum to hear the claim as all events, evidence and witnesses were in this nation – and there is absolutely no connection to New York.
“The claims also are subject to dismissal based on the doctrine of forum non conveniens because all of the events underlying the claim and the evidence exists in the Bahamas – the forum plaintiffs consented to and to which Sandals Resorts International agrees,” Tara Nicola, of the Fitzpatrick, Hunt, Pagano, Aubert law firm, wrote.
“As non-residents of New York, plaintiffs’ choice of forum is entitled to little to no deference.
The Bahamas is an adequate and available forum given that Sandals Resorts International consents to jurisdiction of the Bahamian courts.
“In addition, Bahamian courts recognise negligence claims and permit recovery for pecuniary and non-pecuniary losses.
Bahamian courts also provide for pre-trial discovery.”
Ms Nicola added that The Bahamas had a strong reason to try the case because the events complained of allegedly occurred in this nation, adding: “The public and private interest factors support dismissal in favour of The Bahamas.
“The Bahamas has a strong interest in resolving this dispute locally because the events and allegations that form the basis of the claim are local to the Bahamas. Indeed, plaintiffs contend that a Bahamian resident engaged in inappropriate, unwanted sexual conduct in the Bahamas at a Bahamian resort involving the Bahamian authorities.
Arguing that New York had zero connection to the Pascarellas’ claims, she reiterated: “Because the injury and alleged negligent conduct occurred in the Bahamas at a Bahamian hotel and involves a Bahamian resident, the Bahamas bears the most significant relationship to the dispute.
“All of the private interest factors support dismissal in favour of The Bahamas.
The sources of proof and the majority of the witnesses, including the alleged assailant, necessary to adjudicate this matter are located in The Bahamas.
“As the majority of witnesses are located in The Bahamas, it would be both costly and impractical to compel witnesses to travel from The Bahamas to New York.
Therefore, The Bahamas remains as the most convenient forum to adjudicate this dispute.”
The Pascarellas’, whose tale featured widely in the most excitable US and UK tabloids, as well as the major US morning and news TV shows, are claiming that Mr Adderley “stealthily entered the bedroom of (Mrs Pascarella) and undertook surreptitiously to fondle, grope, and take sexual liberties of (her) beneath her bed-clothes and clothing” when they stayed at Sandals Royal Bahamian for their wedding.
The couple are claiming $10m for the resorts’ negligence; another $10m at least for breach of contract; and a third sum of at least $10m for Mr Pascarella’s “loss of consortium”.
Mr Adderley, though, vigorously denied that such an attack occurred even though he pled guilty to indecent assault in a Magistrate’s Court.
He said he changed his initial “not guilty” plea in an effort to escape serving prison time and thus missing his father’s funeral.