On February 1, 2011, the Eleventh Circuit Court of Appeals held that the district court did not abuse its discretion when it dismissed several lawsuits filed by the families of victims of an airline crash in Brazil on forum non conveniens grounds. The decision, Tazoe v. Airbus S.A.S.,1is the latest in a series of foreign air crash cases in which courts in the Eleventh Circuit have dismissed claims by foreign plaintiffs in favor of foreign jurisdictions.2
On July 17, 2007, TAM Flight 3054, an A320-233 aircraft, overran the runway upon landing in São Paulo, Brazil, and crashed into a warehouse and fueling station, killing all 187 passengers and crew and 12 ground personnel. One passenger, Ricardo Tazoe, was a U.S. citizen who lived in Florida. All other victims were citizens and residents of Brazil. The accident resulted in two parliamentary investigations, two criminal investigations, and an investigation by the Centro de Investigação e Pravenção de Acidentes Aeronáuticos, Brazil's aviation accident investigation board. Numerous civil lawsuits were filed in Brazil.
The personal representatives of the estates of the deceased passengers filed more than 75 actions in the Southern District of Florida against TAM Linhas Aereas (the Brazilian aircraft operator), Airbus S.A.S. (the French manufacturer of the aircraft), Goodrich Corporation (the U.S. manufacturer of the thrust reversers), IAE International Aero Engines AG (the Swiss manufacturer of the engines), and Pegasus Aviation IV, Inc. (the U.S. lessor of the aircraft). The manufacturing defendants filed third-party actions against the airport authority that operated the São Paulo airport, which never entered an appearance in the Florida lawsuits. After substantial pre-trial discovery and partial settlements by TAM of most of the Florida cases, the manufacturing defendants moved to dismiss the complaints on the ground of forum non conveniens.3 In August 2009, the district court granted the motion, finding that the lawsuits should be dismissed and refiled in Brazil, the more convenient forum.4
Eleventh Circuit Opinion
The Court of Appeals found no abuse of discretion by the district court in dismissing the claims of the 76 foreign plaintiffs and sole U.S. plaintiff.5 The manufacturing defendants met their burden of proving: (1) an adequate alternative forum was available; (2) the public and private factors weighed in favor of dismissal; and (3) the plaintiffs could reinstate their lawsuits in the alternative forum without undue inconvenience. The Court of Appeals separately considered the dismissal of the complaints of the Brazilian plaintiffs and the U.S. plaintiff.
The Brazilian Plaintiffs
The Court found that Brazil was an available forum because the manufacturing defendants had stipulated, as conditions of dismissal, that they were amenable to process in Brazil, would toll any statute of limitation defense, would make documents and witnesses available in Brazil, and would respect any final judgment in Brazil. This stipulation further served to satisfy the element that the plaintiffs could reinstate their lawsuits in the alternative forum without undue inconvenience.Additionally, other federal courts have determined that the courts in Brazil provides sufficient remedies in similar cases.6
The Court determined that the private and public interest factors weighed in favor of dismissal. With respect to the private interest factors, the vast majority of the relevant liability and damages evidence was located in Brazil, including the wreckage, the digital flight data and cockpit voice recorders, the results of the government investigation, evidence relating to claims for damages and the location of the accident site. Significant costs would be incurred by proceeding with the trial in Florida, as many of the accident reports and the testimony of many witnesses were in Portuguese and would require translation into English. Further, the district court had no authority to compel foreign witnesses to testify in its jurisdiction.
The Court further found that the manufacturers would be inconvenienced by a Florida action due to their inability to implead potentially liable third parties such as the Brazilian airport and aviation authorities. The Court rejected the plaintiffs' argument that the manufacturers could seek contribution from these entities in a separate proceeding in Brazil on the basis that the manufacturing defendants' defense would be considerably weakened by the jurors seeing "empty chairs" instead of third parties and that judicial economy requires all claims to be resolved in a single proceeding.7 Although the plaintiffs argued that the district court had already proven itself to be a convenient forum based on the extensive discovery (including more than 145 depositions of surviving family members concerning damages issues conducted in Miami) that had already taken place, the Court of Appeals concluded that this factor alone did not mean a trial in Florida would be "easy, expeditious, and inexpensive." The Court further pointed out that the family members had been actively participating in, and benefiting from, this discovery.8
With respect to the public interest factors, the Court found that, with more than 75 separate actions filed in the Southern District of Florida, the number of hearings and disputes on discovery alone had demonstrated that the litigation would overburden the Florida court system. Additionally, because this accident occurred in Brazil and involved Brazilian citizens, Brazil had a "superior interest in [the] resolution of these claims."9 The likely application of Brazilian law further weighed in favor of Brazil as a more convenient location for the litigation.
The U.S. Plaintiff
The Court of Appeals analyzed the claim of the U.S. plaintiff separately, recognizing that a U.S. plaintiff's choice of a forum is entitled to "somewhat more deference" than that of a foreign plaintiff.10 The Court acknowledged that, in such cases, a district court must find “positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen access to the courts of this country.”11
The Court of Appeals determined that the district court adequately supported its decision with "persuasive analysis"12 by finding that a trial in Florida would deprive the manufacturers of the ability to compel third-party witnesses, obtain documents from those witnesses and implead potentially liable third parties ? factors that would be "both unusually extreme and materially unjust."13 These factors, in combination with the other private and public interest factors, weighed in favor of dismissing the suit, despite the additional deference given to a U.S. citizen.
The Eleventh Circuit's opinion joins numerous other recent federal court decisions dismissing claims (including claims by U.S. plaintiffs) arising from foreign airline accidents occurring outside the U.S.14 Significantly, the Court of Appeals was not swayed in this case by the presence of a U.S. plaintiff or the extensive liability and damages discovery that already had taken place in Florida.