Forum Non Conveniens
Jurisdiction (Foreign Court v. U.S. Court)
Boeing has consented to the jurisdiction of the Malaysian courts and
agreed to make all relevant evidence available in Malaysia as a condition of
dismissal for forum non conveniens.
Representatives of many of the passengers filed lawsuits in the United
States asserting, inter alia, Montreal Convention claims against
Malaysia Airlines Systems Berhad, Malaysia’s national airline at the time of
Flight MH370, its current national airline, Malaysia Airlines Berhad, and the
airlines’ insurers, as well as state law products liability and wrongful death
claims against Boeing, which manufactured the aircraft in question in
Washington state.
Appellees moved jointly to dismiss for forum non conveniens and
the district court granted that motion in full, concluding that Malaysia is a
more convenient forum to hear all of the appellants’ claims. While the Court
has great sympathy for the victims of this tragedy and their families, we
cannot disregard the narrow standard governing our review in this case. We
conclude that the district court did not clearly abuse its discretion in
dismissing appellants’ lawsuits for forum non conveniens and affirm the
decision in full.
Malaysia Airlines Flight MH370 disappeared en route from Kuala Lumpur
International Airport in Malaysia to Beijing, China, early in the morning on
March 8, 2014. On board Flight MH370 were 227 passengers and 12 Malaysian crew
members. The 227 passengers were of 14 nationalities, including 152 Chinese
citizens, 38 Malaysian citizens, and 3 United States citizens. The aircraft in
question was a Boeing 777-2H6ER that was designed and manufactured at Boeing’s
facility in Washington state and delivered to the airline in new condition in
May 2002.
An extensive search for the missing aircraft
ensued following the plane’s disappearance. The search team ultimately
concluded that Flight MH370 likely crashed in the Southern Indian Ocean after
running out of fuel, but neither the plane nor other critical pieces of
evidence, such as the cockpit voice recorder and flight data recorder, were
recovered. In addition to the search for physical evidence, the Malaysian
government took the lead on a separate civil investigation into why Flight
MH370 had disappeared. This investigation culminated in a 449-page report,
which concluded that while the investigation team was “unable to determine the
real cause for the disappearance of MH370,” human interference or error were
more likely the cause of the plane’s disappearance than aircraft or system
malfunction. In connection with this investigation and a related criminal
investigation, the civil investigation team and the Malaysian government
conducted numerous interviews of witnesses located in Malaysia, including airline
employees, family members and acquaintances of the Malaysian crew, air traffic
controllers, cargo shippers, and Malaysian investigators.
Numerous civil cases arising out of Flight MH370’s disappearance are
also pending in Malaysia. Seventy-seven of the eighty-eight decedents
represented in the legal actions that comprise this litigation are also
represented in cases pending in Malaysia. Boeing has not been named as a party
to any of the Malaysian suits to date, but Boeing has consented to the
jurisdiction of the Malaysian courts and agreed to make all relevant evidence
available in Malaysia as a condition of dismissal for forum non conveniens.
A party seeking dismissal for forum non conveniens bears the burden
of showing both (1) that an adequate alternative forum is available to hear the
dispute, and (2) if so, that the balance of certain public and private interest
factors strongly counsels in favor of trying the dispute in the alternative
forum. See, e.g., Agudas Chasidei Chabad of U.S. v. Russian Fed’n,
528 F.3d 934, 950 (D.C. Cir. 2008). The Supreme Court has instructed that “the forum
non conveniens determination is committed to the sound discretion of the
trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). So
long as the district court “has considered all relevant public and private
interest factors, and ... its balancing of these factors is reasonable,” we
must afford that decision “substantial deference” and will overturn only if we
find a “clear abuse of discretion.” Id. Under this narrow standard, we
find no basis to reverse the district court’s reasoned decision.
First, the district court did not abuse its
discretion when it concluded that Malaysia is an adequate, available forum for
appellants’ Montreal Convention and state law products liability and wrongful
death claims.
(…) MAS appears to have an insurance policy that
would apply to appellants’ Montreal Convention claims.
(…) Appellants failed to raise any challenge to
the adequacy of tort damages under Malaysian law before the district court,
those arguments are forfeited. See Gov’t of Manitoba v. Bernhardt, 923
F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional circumstances, a party
forfeits an argument by failing to press it in district court.”).
In any event, in the context of a forum non
conveniens inquiry, “a foreign forum is not inadequate merely because it
has less favorable substantive law.” Agudas Chasidei Chabad, 528 F.3d at
950.
(…) See, e.g., Piper Aircraft, 454
U.S. at 254 n.22 (explaining that a forum will only be deemed inadequate “in
rare circumstances ... where the remedy offered by the other forum is clearly
unsatisfactory,” such as “where the alternative forum does not permit
litigation of the subject matter of the dispute”).
Nor did the district court clearly abuse its discretion in concluding
that the balance of relevant public and private interest factors weighs heavily
in favor of trying appellants’ cases in Malaysia. The relevant public interest
factors include, inter alia, the “‘administrative difficulties’ when
‘litigation is piled up in congested centers,’” the “‘local interest in having
localized controversies decided at home,’” and the desire to avoid requiring a
court to “‘untangle problems in conflict of laws, and in law foreign to
itself.’” Shi v. New Mighty U.S. Tr., 918 F.3d 944, 952 (D.C. Cir. 2019)
(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947)). The
private interest analysis, on the other hand, focuses on “‘the relative ease of
access to sources of proof,’” the costs and procedural mechanisms required to
secure the attendance of witnesses, and “‘all other practical problems that
make trial of a case easy, expeditious and inexpensive.’” Id. at 950
(quoting Gilbert, 330 U.S. at 508).
The district court found that Malaysia’s public interest in hearing
claims arising out of Flight MH370’s disappearance far outweighs that of the
United States, even as to the tort claims asserted against U.S.-based
manufacturer Boeing. The district court further held that the private interest
factors tilt strongly in favor of trying these cases in Malaysia, given the
overwhelming amount of evidence and witnesses located in Malaysia and the
potentially insurmountable challenges that would arise from attempting to make
that evidence available in a United States court.
The starting point for the forum non conveniens analysis is “a
strong presumption in favor” of a plaintiff’s chosen forum. Simon v.
Republic of Hungary, 911 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting Piper
Aircraft, 454 U.S. at 255–56). But the precise degree of deference afforded
a plaintiff’s forum choice varies depending on the plaintiff’s connection to
the forum. A plaintiff who chooses to sue in his home forum receives the
strongest presumption, whereas a foreign plaintiff with minimal or no
connections to the United States is entitled to less deference. Piper
Aircraft, 454 U.S. at 256. Accordingly, the district court afforded
Appellant Wood, as a U.S. citizen and resident representing a U.S. citizen
decedent, “the highest degree of deference” and tailored its analysis of the
remaining appellants’ interests in having their claims heard in the United
States to their particular circumstances. In re Air Crash Over S. Indian
Ocean, 352 F. Supp. 3d at 45.
(…) Nothing in Sinochem requires district courts to conclusively
determine whether a defendant enjoys sovereign immunity before considering
immunity as a relevant factor in its forum non conveniens analysis.
Here, Boeing and MAS/MAB raise serious arguments regarding MAS/MAB’s likely
immunity, and it was entirely proper for the district court to recognize that
serious jurisdictional questions exist and weigh that as a factor in favor of
dismissal.
(U.S. Court of Appeals for the District of
Columbia Circuit, January 10, 2020, In Re: Air Crash Over the Southern Indian
Ocean on March 8, 2014, Docket No. 18-7193)
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