A multidistrict litigation (MDL) court in California has dismissed dozens of consolidated claims filed against Air France arising out of an air disaster on a flight between Brazil and France that killed all 228 passengers and crew. In re Air Crash over the Mid-Atl. on June 1, 2009, MDL No. 10-2144 (U.S. Dist. Ct., N.D. Cal., decided October 4, 2010). The passengers and crew were mainly French or Brazilian, with the exception of two American passengers living in Brazil when the accident occurred. Because there were two “domestic plaintiffs,” the court refused to dismiss the claims for lack of subject matter jurisdiction under a treaty, the MC, that gives jurisdiction to courts in the “the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence.”

While the treaty is silent as to the U.S. doctrine of forum non conveniens, or inconvenient forum, the court determined that it does not override the court’s power to dismiss an action on this basis. The plaintiffs argued that French courts would not provide an adequate alternative forum, because civil actions progress there at a slower pace. According to the court, this did not outweigh other aspects of the litigation that made the United States an inconvenient forum, including that criminal and civil investigations were underway in France and all recovered physical evidence was located there. The court also noted that because foreign plaintiffs cannot sue Air France in the United States and because some of the domestic manufacturing defendants might not be able to assert contribution claims against Air France here, the court determined that France would provide the superior forum for pursuing the claims.

The court conditioned its dismissal order on defendants making themselves amenable to suit in France and abiding by “all stipulations made in their Motions and at oral argument.” The court also conditioned dismissal on defendants not seeking or arguing “for a stay of any civil proceedings commenced in France.”