The Seventh Circuit Court of Appeals has determined that an airline manufacturer prematurely attempted to remove to federal court state-court actions arising out of a 2009 crash that occurred in the Netherlands. Koral v. Boeing Co., Nos. 10-8035, -8036, -8039, -8040, -8041, -8042, -8048 (7th Cir., decided January 4, 2011). Boeing had sought to remove individual actions to federal court under the Class Action Fairness Act (CAFA) provision that allows the removal of mass actions, i.e., those involving the “claims of 100 or more persons . . . proposed to be tried jointly.”

In all, 29 separate lawsuits involving 117 plaintiffs have been filed in Illinois against Boeing. When the company filed a motion to dismiss on the basis of forum non conveniens, the plaintiffs responded that Boeing’s Washington-based witnesses would not be inconvenienced because “[a]s this Court is aware, in aviation disaster cases, several exemplar cases are routinely tried on one occasion at which time the issue of liability is determined for the remainder of the cases.” According to Boeing, this statement constituted a proposal to try the claims jointly.

The court disagreed, stating, “[W]e think the plaintiff’s [sic] statement falls just short of a proposal, as it is rather a prediction of what might happen if the judge decided to hold a mass trial. It would be odd to think that plaintiffs could not make a telling response to a motion for dismissal of a suit on the ground of forum non conveniens without thereby having forfeited their chosen forum; by arguing against dismissal, they would be arguing for it.”

The court affirmed the lower court orders remanding the actions to state court.