                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1409



ELSIE MARIE ALLEN, as Personal Representative
of the Estate of Donna Lea Swaim; KEITH
BARFIELD, as Personal Representative of the
Estate of Allison Barfield; WILLIAM E.
HARRELL, JR.; NICHOLAS R. WILKERSON,

                                           Plaintiffs - Appellants,

           versus


CHOICE HOTELS INTERNATIONAL, INCORPORATED,

                                              Defendant - Appellee,

           and


GREENVILLE HOTEL PARTNERS, INCORPORATED; R.G.
HOSPITALITY,   LLC;    RONALD   GEDDA;   R.G.
PROPERTIES, LLC,

                                                         Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:04-cv-02327-HMH)


Argued:   March 20, 2008                      Decided:   May 1, 2008


Before WILLIAMS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Robert Paul Foster, FOSTER LAW FIRM, L.L.P., Greenville,
South Carolina; Laurel Payne Landon, KILPATRICK & STOCKTON, L.L.P.,
Augusta, Georgia, for Appellants.          James Thomas Hewitt,
LEATHERWOOD, WALKER, TODD & MANN, Greenville, South Carolina, for
Appellee.    ON BRIEF: Raymond G. Chadwick, Jr., KILPATRICK &
STOCKTON, L.L.P., Augusta, Georgia, for Appellants.        John R.
Crockett, III, Jeremiah A. Byrne, FROST, BROWN, TODD, L.L.C.,
Louisville, Kentucky; Stanley T. Case, BUTLER, MEANS, EVINS &
BROWNE, P.A., Spartanburg, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     This case arises out of a fire at a Comfort Inn and Suites

(the “Comfort Inn”) which killed six hotel guests and injured

twelve others. Appellants, guests who were injured in the fire and

personal representatives of those who perished, brought wrongful

death and personal injury claims against Ron Gedda (“Gedda”) and

his company, R.G. Hospitality, LLC (“RGH”) (together “RGH/Gedda”),

the hotel owners/franchisees, and Choice Hotels International, Inc.

(“Choice”), the hotel franchisor.    As relevant here, the district

court granted summary judgment to Choice, concluding that, as

franchisor, Choice was neither directly nor vicariously liable for

the alleged negligent acts.   Appellants only appeal the district

court’s ruling as to Choice’s direct liability.    Appellants also

request that this court certify the issue of franchisor liability

to the South Carolina Supreme Court.

     Because this case does not present a novel question of law

that justifies certification, and because we agree that Choice

breached no duty of care on these facts, we affirm.



                                I.

     In January 2004, six hotel guests were killed and twelve

others were injured in a fire at the Comfort Inn and Suites in




                                3
Greenville, South Carolina.1           Following the fire, Appellants filed

suit against Choice on theories that Choice was vicariously liable

for the acts of the franchisee RGH/Gedda based on actual and

apparent agency, and directly liable for alleged negligent acts of

its own.      Specifically, they allege that Choice is directly liable

to Appellants because it failed to require RGH/Gedda to retrofit

the hotel with sprinklers.

       Choice filed motions for summary judgment on the negligence

claims, arguing that it was not liable on the Appellants’ theories

of negligence for either direct liability or vicarious liability.

The district court granted Choice’s motion, finding that Choice was

not directly liable because it had no duty to retrofit the hotel

with       sprinklers,   nor   was     Choice   vicariously     liable    because

Appellants failed to show that RGH/Gedda were either Choice’s

actual or apparent agents.

       Appellants    twice     moved    for   reconsideration    and     requested

certification of particular questions to the Supreme Court of South

Carolina.        The district court denied these requests.                 In yet

another motion to reconsider, Appellants submitted an order from

the South Carolina Court of Common Pleas for Greenville County

(“State Court Order”), denying Choice’s motion for summary judgment

in a number of related cases arising from the same incident.                  The


       1
     A federal jury convicted Eric Preston Hans for igniting the
fire that caused the injuries and deaths at the hotel.    United
States v. Hans, 6:05-cr-01227 (D.S.C. Nov. 16, 2005).

                                          4
state court found that the question of whether Choice owed the

plaintiffs a duty of care presented a mixed question of law and

fact to be resolved by the fact finder.   Nonetheless, the district

court held that the State Court Order did not alter the district

court’s analysis with respect to the relationship between Choice

and its franchisees and that the district court was not bound by a

state trial court’s decisions on a matter of law.      The district

court again denied Appellants’ motion to reconsider.     Appellants

timely filed this appeal.



                                II.

                                 A.

     Appellants maintain that certification is appropriate due to

the absence of controlling South Carolina precedent on franchisor

liability and because this case presents a novel issue of South

Carolina law.2   This court has held that “[o]nly if the available

state law is clearly insufficient should the court certify the

issue to the state court.”   Roe v. Doe, 28 F.3d 404, 407 (4th Cir.

1994).   In addition, there is no need to certify an unresolved

question of state law to state court where the “state of the law


     2
      Appellants also argue that this court should reconsider
certification in light of pending cases arising out of the same
incident. Appellants cite to no authority, nor have we found any,
requiring certification where a case arising from the incident is
pending in state court. In any event, the pending cases have all
been settled or dismissed, with the exception of one case that is
in pre-discovery.

                                 5
[is clear] in every other jurisdiction that has addressed the

issue.”    Powell v. U.S. Fidelity and Guaranty Co., 88 F.3d 271, 273

(4th Cir. 1996).        As demonstrated by the district court, there is

sufficient South Carolina case law to resolve the issue before us,

and     where   the    South   Carolina     case    law    is   lacking,   other

jurisdictions that have directly addressed this issue provide

appropriate instruction.

      We note as well that the circumstances of Appellants’ request

render it somewhat suspect.           Appellants elected to bring suit in

federal court, and pursued the alternative of certification only

after    receiving     an   adverse    decision    by     the   district   court.

Certification requests that bear a resemblance to forum shopping

are generally discouraged.            See National Bank of Washington v.

Pearson, 863 F.2d 322, 327 (4th Cir. 1988) (finding certification

inappropriate after removal to federal court following an adverse

ruling in state court); see also Powell, 88 F.3d at 273 (finding

certification         inappropriate     where      plaintiffs,      who    sought

certification, had initially filed suit in state court but then

elected to take non-suit and re-file in federal court). For these

reasons, we decline to certify the issue presented by this case to

the Supreme Court of South Carolina.




                                        6
                                        B.

     We review de novo the district court’s grant of summary

judgment,   Long v. Dunlop Sport Group Ams., Inc., 506 F.3d 299, 301

(4th Cir. 2007).        Fed. R. Civ. P. 56(c).          Because this is a

negligence claim based on diversity jurisdiction, we apply South

Carolina law.        See Roe, 28 F.3d at 407 (“Federal courts in

diversity cases apply the law of the forum state.”).

     To prevail on a negligence claim in South Carolina, Appellants

must show that (1) Choice owed them a duty of care; (2) Choice

breached its duty by a negligent act or omission; (3) Choice’s

breach was the proximate cause of their injuries; and (4) they

suffered injury or damages.            Dorrell v. South Carolina Dep’t of

Transp.,    605    S.E.2d   12,   15   (S.C.   2004).   “Whether   the   law

recognizes a particular duty is an issue of law to be determined by

the court.”       Jackson v. Swordfish Inv., L.L.C., 620 S.E.2d 54, 56

(S.C. 2005). The district court granted summary judgment to Choice

because Appellants failed to establish the first element--that

Choice owed them a duty--and we agree.

     Appellants assert three bases for finding that Choice owed a

duty to Comfort Inn guests that it breached by failing to require

RGH/Gedda to retrofit the hotel facility with a sprinkler system

before opening the facility.3          We consider each in turn.


     3
      Appellants offered no evidence to show that the hotel, at any
time, failed to comply with all applicable fire codes and
specifically acknowledged as much at oral argument. Furthermore,

                                        7
                                     1.

     Appellants first argue that Choice owed a duty of care to

hotel guests because Choice operated the Comfort Inn and controlled

its life safety systems as evinced by the Franchise Agreement and

Comfort    Inn   Rules     and   Regulations     Instructions       (“Rules   and

Regulations”).      See, e.g., Wise v. Kentucky Fried Chicken Corp.,

555 F. Supp. 991, 995-96 (D.N.H. 1983) (holding that the defendant

franchisor owed a duty to a franchisee’s injured employee because

the defendant retained the authority to select, approve, and

recommend the cooking equipment responsible for the employee’s

injury).   Therefore, we turn to the Franchise Agreement, the Rules

and Regulations and Choice’s interaction with the Comfort Inn

pursuant to the Franchise Agreement to determine whether Choice

exercised sufficient control over the Comfort Inn to establish such

a duty.

     Under   both    the    Franchise       Agreement   and   the    Rules    and

Regulations, RGH/Gedda (1) owned the building, land, and hotel

equipment; (2) held the operating licenses and permits; (3) hired,

fired, supervised, and disciplined the franchisee’s employees; (4)

determined employee wages and room rates; (5) provided training for

employees, and (6) provided insurance for the hotel.                Furthermore,


although asserting that sprinklers are rapidly becoming standard in
the hospitality industry, Appellants have apprised us of no
authority to support their assertion that a hotel franchisor has a
duty to require a hotel, which complies with the relevant fire
codes, to retrofit the building with sprinklers.

                                        8
the Franchise Agreement specifically states that RGH/Gedda is

“solely responsible for exercising ordinary business control over

the Hotel.”    J.A. 117.

     Choice’s Rules and Regulations required RGH/Gedda to have life

safety systems, which included smoke and fire detection, fire

extinguishing equipment, emergency exits, and emergency lighting

that “meet or exceed prevailing federal, state or local codes.”

J.A. 444.    The Rules and Regulations also recommended an emergency

power generator and sprinkler system.     Gedda testified, however,

that Choice did not participate in the selection of fire or safety

equipment installed at the hotel, and that RGH/Gedda did not need

Choice’s approval to make any changes to safety and security

systems at the hotel; nor did Choice have a role in RGH/Gedda’s

decision regarding whether or not to install fire sprinklers.

     The mere terms of the Franchise Agreement do not establish

that Choice exerted sufficient control over the operations of the

hotel to create a duty.     See Kerl v. Dennis Rasmussen, Inc., 682

N.W.2d 328, 338 (Wis. 2004) (“[T]he clear trend in the case law in

other jurisdictions is that the quality and operational standards

and inspection rights contained in a franchise agreement do not

establish a franchisor’s control or right of control over the

franchisee     sufficient   to   ground   a   claim   for   vicarious




                                  9
liability.”).4          And,     the    Rules    and   Regulations    simply     ensure

uniformity at all Comfort Inn franchise locations.                     See Hayman v.

Ramada Inn, Inc. 357 S.E.2d 394, 397 (N.C. Ct. App. 1987).                            At

best,       taken    together,    the    Franchise      Agreement     and    Rules   and

Regulations show that RGH/Gedda operated and controlled the Comfort

Inn   under       general   guidelines          intended   to   foster      consistency

throughout the Choice system. Therefore, Appellants have failed to

establish that Choice owed a duty to Comfort Inn guests under this

theory.

                                           2.

        The second basis for finding a duty, Appellants argue, is that

Choice owed a common law duty of care to foreseeable persons.

Citing to the South Carolina Supreme Court’s decision in Dorrell,

Appellants argue that since their injuries were foreseeable, Choice

owed a duty to prevent the injuries and that it breached that duty

by not requiring the installation of sprinklers.                     A review of the

facts       of   Dorrell,   however,      reflects     the   extent    to    which   the

decision is inapposite.            The defendant was a contractor hired by

the South Carlina Department of Transportation to pave a shoulder

on a road.          605 S.E.2d at 13-14.          When a driver was injured as a

result of the paving job, the contractor argued that he owed no


        4
      Like the vicarious liability analysis, the “[d]irect
liability cases [also] look to the franchisor’s actual control or
retained right of control to determine the presence of a duty for
purposes of evaluating whether the franchisor was itself
negligent.” Kerl, 682 N.W.2d at 334 n. 3.

                                            10
legal duty to the injured driver because the shoulder was paved

pursuant to his contract with the Department of Transportation.

Id. at 13-14.        The South Carolina Supreme Court stated that a

“tortfeasor’s liability exists independently of the contract and

rests upon the tortfeasor’s duty to exercise due care,” and the

“common law duty of due care includes the duty to avoid damage or

injury to foreseeable plaintiffs.”           Id. at 15.

       Appellants    attempt   to   analogize    the   paving   contractor’s

building of an unsafe shoulder to Choice’s failure to require

installation of an automatic sprinkler system.            Such a comparison

ignores the fact that while the contractor in Dorrell created the

risk by building the shoulder in such a way that a driver could be

injured, Choice did not create a risk or in any way make injury to

the hotel guests more likely.             Therefore, we cannot agree with

Appellants that Dorrell compels the conclusion that Choice owed a

duty to Comfort Inn guests.

                                     3.

       The third purported basis for a duty also arises under common

law.    South Carolina common law recognizes a separate duty to use

due care where an act is voluntarily undertaken for the benefit of

a third party.      See Russel v. City of Columbia, 406 S.E.2d 338, 339

(S.C. 1991) (“[E]ven where there is no duty to act but an act is

voluntarily undertaken, the actor assumes the duty to use due

care.”).    Appellants argue that Choice voluntarily undertook to


                                      11
regulate the life safety systems and address a security problem at

the hotel for the benefit of hotel guests.5        See generally Decker

v. Domino’s Pizza, Inc., 644 N.E.2d 515 (Ill. App. Ct. 1994)

(holding   that   a   convenience   store   franchisor   owed   a   duty   of

reasonable care to a franchisee’s employee who was injured during

a robbery attempt because the franchisor had voluntarily undertaken

to establish a security program to deter robberies and protect

store employees from harm in the event of a robbery); Papastathis

v. Beall, 723 P.2d 97 (Ariz. Ct. App. 1986) (holding that a

convenience store franchisor owed a duty of reasonable care to a

store customer who was injured when a soda can fell from a

defective rack because the franchisor had undertaken to perform the

service of inspecting, endorsing, and recommending the rack).

     Despite Appellants’ argument to the contrary, the fact that

Choice required RGH/Gedda to install fire safety systems and made

recommendations in its Rules and Regulations that RGH/Gedda install

sprinklers does not establish that Choice voluntarily undertook to

control or regulate the life safety systems.        See Wendy Hong Wu v.

Dunkin’ Donuts, Inc., 105 F. Supp. 2d 83, 93-94 (E.D.N.Y. 2000)

(“[S]imply providing a list of suggested-but not required-security


     5
      The security problem refers to a disabled third floor door
lock that the arsonist used to enter the building to start the
fire. Appellants presented evidence that a Choice representative
assured a hotel guest who called to report the malfunctioning lock
that Choice would address the issue. However, it is undisputed
that when a complaint is received, Choice procedure is to forward
it to the franchisee to address.

                                    12
items does not support . . . contention that [franchisor] retained

or   assumed     control      of    the   security       of     its   franchisees.”).

Similarly, requiring renovations to the hotel and accepting and

forwarding     hotel-guest         complaints     to    the   franchisee         does   not

indicate that Choice voluntarily undertook to regulate safety

systems or make repairs to the hotel.                      Helmchen v. White Hen

Pantry, Inc., 685 N.E.2d 180, 182 (Ind. Ct. App. 1997) (requiring

a showing of control over a franchisee’s security measures beyond

merely    offering      recommendations          about    security         and   imposing

standards    related     to    appearance        and    services      to    establish     a

franchisor’s     liability).          Instead,     Choice       merely      guarded     its

trademark by assuring uniform appearance and operations of hotels

operating under the Comfort Inn mark.                  See Helmchen, 685 N.E.2d at

182 (“These mandatory procedures are intended to assure uniformity

of operation and appearance, and to protect . . . trademark and the

good will associated with it.”); Raines v. Shoney’s Inc., 909 F.

Supp.    1070,   1078    (E.D.      Tenn.    1995)      (“The    protection       of    its

trademark and service mark is a necessary duty of a franchisor; to

interfere with this duty would unfairly impose liability on the

basis of a necessary duty.”).




                                            13
                               III.

     For the foregoing reasons, Appellants have failed to establish

that Choice owed a duty to hotel guests at the Comfort Inn.    The

order of the district court is therefore

                                                         AFFIRMED.




                                14
