A federal court in California has, for a second time, dismissed on forum non conveniens grounds the claims of plaintiffs seeking to impose liability for the crash of an Air France flight. In re: Air Crash over the Mid-Atlantic on June 1, 2009, No. 10-02144 (U.S. Dist. Ct., N.D. Cal., decided June 15, 2011). In October 2010, the court ruled that France was an available alternative forum for resolution of the claims, which were filed by foreign plaintiffs against defendants from a number of countries, including France. Most of the same plaintiffs, non-French foreigners, re-filed the lawsuit, but omitted all of the French defendants. Seeking reconsideration of the court’s prior order, the plaintiffs claimed that a French court would not exercise jurisdiction over a case involving non-French plaintiffs suing non-French defendants.

American component parts manufacturers sought to dismiss the re-filed suits on inconvenient forum grounds, arguing that “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 that “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.” The court agreed, noting that the plaintiffs “‘purposefully opted’ not to re-file their dismissed pleadings in France, instead choosing to re-file actions here designed to defeat forum non conveniens dismissal.”  

According to the court, the plaintiffs “cannot render France unavailable through unilateral jurisdiction pleading, at least where, as here (1) a fair reading of those pleadings and common sense shows that French entities are proper Defendants; (2) Plaintiffs already sued French parties and dropped them only after a forum non conveniens dismissal; and (3) the Court has not been presented with any new facts that developed after the original dismissal but before the filing of the new actions that plausibly provide a reason for why Plaintiffs removed the French Defendants, other than a desire to defeat the Court’s original forum non conveniens Order and render France an unavailable forum for the new actions.”  

The plaintiffs also asked the court, should it rule against them, to impose additional conditions on the forum non conveniens dismissal, and the Brazilian plaintiffs asked the court to amend the original order to provide for dismissal of their claims to Brazil. The court refused both requests