While upholding a lower court’s dismissal, on inconvenient forum grounds, of a number of complaints arising out of an airline disaster that killed more than 200 people in Brazil, the Eleventh Circuit Court of Appeals has determined that the court erred in dismissing, on its own motion, the complaint filed by a Brazilian mother who had not yet served a summons and her complaint on the defendant manufacturers. Tazoe v. Airbus S.A.S., Nos. 09-14847, 08-23434, 07-21941 (11th Cir., decided February 1, 2011).

According to the court, the matter raised an issue of first impression, that is, whether a court can sua sponte dismiss, for reasons of an inconvenient forum, a complaint that has not been served and has not been subject to a motion to dismiss. The mother filed her complaint six months after the manufacturers moved to dismiss the associated complaints of many of the family members of others killed in the accident. The lower court consolidated her complaint with the others and then dismissed them all after determining that Brazil would provide a more convenient forum, given the location of witnesses and evidence.

The appeals court acknowledged that the Brazilian mother’s complaint may not ultimately survive an inconvenient forum challenge, but ruled that she was denied due process because her complaint was dismissed before it had been served and before the manufacturers had moved to dismiss it. She had no notice of the court’s intent to dismiss the complaint and no opportunity to respond. The court remanded her case for further proceedings.