On May 16, 2011, and June 15, 2011, two United States District Courts upheld their prior rulings granting forum non conveniens (FNC) dismissals in multidistrict litigation (MDL) arising from international aviation accidents. In each case, the plaintiffs had filed motions for reconsideration in an attempt to maintain their claims in the U.S. federal courts. The district courts denied these motions, however, and upheld the original dismissal orders.
In re Air Crash at Madrid, Spain: Spain Offers an Adequate Alternative Forum
On August 20, 2008, Spanair Flight 5022 crashed during takeoff in Madrid, Spain, resulting in the deaths of 154 people and injuring 18 others. As a result of the crash, 204 plaintiffs of primarily Spanish citizenship brought 116 wrongful death and personal injury actions in the United States against U.S. manufacturing defendants – but not against Spanair. As is common in complex aviation litigation, the cases were consolidated in the Central District of California by the Judicial Panel on MDL. Upon consolidation, the defendants moved to dismiss asserting forum non conveniens.
Central to the plaintiffs' opposition that Spain was not an adequate forum was that any civil suit in Spain would be indefinitely stayed pending resolution of criminal proceedings against the two mechanics who had worked on the aircraft before the aircraft's failed takeoff. The defendants countered with the "persuasive" expert testimony of a Spanish jurist, who opined that under Spanish civil procedure it was unlikely that the civil proceedings would be stayed in Spain and that, even if they were, such a stay would suspend only the entry of final judgment – not all proceedings in the civil case. Accordingly, on March 22, 2011, the court granted the defendants' motion to dismiss.1
After the district court's decision, a Spanish court set aside an earlier ruling in which it had declined to impose a stay in a civil suit against Spanair. In that case, the plaintiffs had brought claims against Spanair under the Montreal Convention. The new decision by the Spanish court immediately stayed civil proceedings against the airline pending the resolution of the criminal proceedings against the mechanics on the basis that the Spanish criminal court would rule on the same action being pursued in the Spanish civil court. As a result of this ruling, the plaintiffs filed a motion for reconsideration in the district court citing the new decision as "conclusive evidence" that the Spanish court would stay the civil action in Spain, thereby rendering the Spanish forum unavailable and inadequate.
On May 16, 2011, District Judge Gary Feess of the Central District of California issued an Order2 providing that the new decision by the Spanish court "constitutes a new material fact that warrants reconsideration of the Court's prior Order." The district court found that if the manufacturing defendants impleaded Spanair, the case against the manufacturing defendants would require a decision of Spanair's liability, an issue that could qualify as the main issue in the pending criminal proceedings, thus warranting a stay in the Spanish courts. In the same Order, however, the district court ultimately denied the motion for reconsideration because it did not find that the plaintiffs' actions would be indefinitely stayed in Spain to the point that Spain would become an inadequate forum.3
The court noted that "even granting that extraordinarily long delays can in some circumstances render a foreign tribunal effectively unavailable, and even assuming that it is possible that proceedings in plaintiffs' civil cases would be stayed until the criminal case is resolved, there is no indication that plaintiffs will experience such long delays as to render the Spanish tribunal unavailable within the meaning of forum non conveniens jurisprudence." The court noted that the defendants' expert estimated that the investigation phase of the criminal case could take six to 12 months, the accusation and trial phase could last one to three months each, and the appeal could take an additional six to 12 months, "not an unreasonable delay before the civil proceedings begin." Thus, because "an unfavorable change in law, without more, does not render an alternative forum inadequate," the court determined that Spain still offered an adequate forum and denied the plaintiffs' motion for reconsideration.
Air France Flight 447: De Facto Forum Shopping Disavowed
For the second time in less than a year, District Judge Charles Breyer of the Northern District of California ruled that the United States is not the proper forum for the civil lawsuits arising from the Air France Flight 447 accident. On October 4, 2010, the district court conducted a traditional forum non conveniens analysis and determined that (i) France provided an adequate alternative forum for litigation, and that (ii) public and private interests favored dismissal. The court was persuaded by the substantial evidence located in France, the plurality of French citizens aboard the aircraft, and ultimately that France had a greater interest in the litigation than the U.S. and provided a "superior" forum.4
Following dismissal, certain non-French foreign plaintiffs filed new complaints omitting all French defendants, including Airbus, Thales and Air France. The plaintiffs also sought reconsideration of the court's original dismissal order on the theory that if the new suits were permitted to proceed, the original suits should also proceed in the U.S., at least if the French defendants were dropped from the suits. In opposition, defendants argued "that (i) a party cannot purposefully defeat the availability of a foreign forum and then assert unavailability as a basis to defeat forum non conveniens dismissal and (ii) a party subject to a forum non conveniens dismissal order (as plaintiffs are) must litigate in the foreign forum in good faith and cannot contrive to defeat the foreign court's jurisdiction."5
On June 15, 2011, Judge Breyer issued an order denying the plaintiffs' reconsideration application in its entirety, reasoning that they "should not be allowed to assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct."6 Indeed, the court recognized that "this is exactly what Plaintiffs are attempting to do by re-filing suits that omit French Defendants they previously asserted were liable and still seem to allege are at least partially responsible." Thus, because plaintiffs themselves had caused the jurisdictional issue that supposedly prohibited them from filing suit in France, the district court was unsympathetic to any assertion that the plaintiffs might not have an adequate forum outside of the United States.
The court was not persuaded by the argument that, as a general matter, plaintiffs are free to frame a complaint as they wish. The court found that the plaintiffs ignored "the fact that forum non conveniens is by its nature a doctrine that limits plaintiffs' choices." Thus, "the fact that plaintiffs generally have freedom to craft their complaints as they wish does not prevent dismissal because these Plaintiffs are subject to a forum non conveniens Order and have engaged in pleading practices deliberately designed to defeat jurisdiction in the foregoing forum and circumvent that Order."
As part of its decision, the court declined to impose an additional condition of dismissal that the court's original Order be amended to provide for dismissal of claims to Brazil, finding that the issue could have been raised sooner than in a reconsideration motion but was not. In addition, the court declined to impose a condition allowing the plaintiffs to return to the United States should a French court dismiss the new actions brought only against U.S. manufacturing defendants. Such a condition was unwarranted because the plaintiffs subject to the original dismissal could have re-filed those actions in France without any jurisdictional barrier rather than refiling in the United States.
As noted by Judge Feess in the original Spanair dismissal Order, "the accident occurred at a Spanish airport on Spanish soil, when a plane operated by a Spanish airline, flown by Spanish pilots, and carrying mostly Spanish citizens, attempted to fly from one Spanish city to another. The significance of Spain's local interest cannot be disputed." And as similarly noted by Judge Breyer in the original Air France dismissal Order, "When a national carrier crashes on the way home with a plurality of citizens of that nation onboard, it is difficult to conclude that the carrier's country is not the most interested nation in litigation arising from the crash." Despite the plaintiffs' efforts to engage the court's reconsideration of issues concerning the unsuitability or unavailability of foreign courts to litigate aviation accidents, it remains clear that U.S. courts will continue to dismiss actions arising out of foreign aviation accidents that are more appropriately filed abroad.