Elena Fortaner v. The Boeing Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2013
• Docket: 11-55951
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 10 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ELENA CELLA FORTANER, Personal No. 11-55951 Representative of the Estate of Maria Del Carmen Fortaner Nou, Deceased; et al., D.C. No. 2:10-cv-01149-GAF-RZ

Plaintiffs - Appellants, MEMORANDUM * v.

THE BOEING COMPANY; et al.,

Defendants - Appellees.

ANTONIO GARCIA MARTIN, As No. 11-55952 Special Administrator of the Estate of Laudencio Garcio Martin, Deceased, As D.C. No. 2:10-cv-01150-GAF-RZ Special Administrator of the Estate of Elena Garcia Hernandez, Deceased, and As Special Administrator of the Estate of Carlos Garcia Hernandez, Deceased,

Plaintiff - Appellant,

v.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. KIM IVONNE TATE PEREZ, No. 11-55959 Individually; et al., D.C. No. 2:09-cv-07285-GAF-RZ Plaintiffs - Appellants,

ANA MARIA SANCHEZ DIEZ, No. 11-55960 Individullay and as Personal Representative of the Estate of Betsabe D.C. No. 2:10-cv-01148-GAF-RZ Ibanez Sanchez, decedent; et al.,

Plaintiffs - Appellants,

VIRGINIA PINO HERNANDEZ No. 11-55961 MARTIN, Individually and as Representative of the Estate of Zenaida D.C. No. 8:10-cv-01262-GAF-RZ Hernandez Martin, Deceased; et al.,

2 Defendants - Appellees.

CARMELO ALVARADO CASTRO, as No. 11-55962 personal representative of the estate of Robert Alvarado Coruna and AVELINA D.C. No. 2:10-cv-01114-GAF-RZ CORUNA DIAZ, as co-personal representative of the estate of Robert Alvarado Coruna,

MCDONNELL DOUGLAS CORPORATION; et al.,

MARIA LORETO GONZALEZ No. 11-55963 CABANAS, as co-personal representative of the Estate of Clara Diaz Gonzalez, D.C. No. 2:10-cv-01120-GAF-RZ deceased and JOSE LUIS DIAZ DIAZ, as co-personal representative of the Estate of Clara Diaz Gonzalez, deceased,

3 GLORIA ESTER DIEPA MARTIN, as No. 11-55964 personal representative of the Estate of Oscar Gabriel Alvarado Diepa, deceased, D.C. No. 2:10-cv-01107-GAF-RZ

HIGINIO IBANEZ FRACA, as personal No. 11-55966 representative of the estate of Betsabe Ibanez Sanchez, deceased, D.C. No. 2:10-cv-01108-GAF-RZ

CARLOS BAIXERAS LLANO, as No. 11-55968 Personal Representative and Special Administrator of the Estate of MARIA D.C. No. 2:11-cv-00576-GAF-RZ DEL PINO DJAZ MENDOZA, deceased; et al.,

4 v.

THE BOEING COMPANY,

Defendant - Appellee.

JUAN DIEPA HERNANDA, as co- No. 11-55969 Personal Representatives of the Estate of Monica Diepa Leon, deceased and D.C. No. 2:10-cv-01115-GAF-RZ FRANCISCA LEON RIVERA, as co- Personal Representatives of the Estate of Monica Diepa Leon, deceased,

GLORIA ESTER DIEPA MARTIN, as No. 11-55971 personal representative of the estate of Roberto Alexander Alvarado Diepa, D.C. No. 2:10-cv-01106-GAF-RZ deceased,

5 GLORIA ESTER DIEPA MARTIN, as No. 11-55971 personal representative of the estate of Roberto Alexander Alvarado Diepa, D.C. No. 2:10-cv-01106-GAF-RZ deceased,

MARIA DOLORES FLOREZ No. 11-55972 RODRIGUEZ, as personal representative of the estate of Maria Lourdes Romero D.C. No. 2:10-cv-01116-GAF-RZ Florez, deceased,

SONIA MARIA CASTILLO No. 11-55973 MARTINEZ, as personal representative of the Estate of Maria Sonia Rodriguez Del D.C. No. 2:10-cv-01117-GAF-RZ

6 Castillo, deceased,

JOSEFA ORTIZ PEREA, as personal No. 11-55974 representative of the estate of Maria Cristian Domiguez Ortiz, deceased, D.C. No. 2:10-cv-01113-GAF-RZ

MARIA DEL CARMEN HERNANDEZ, No. 11-55976 Personal Representative of the Estate of Ruben Santan Mateo, deceased, D.C. No. 2:10-cv-01101-GAF-RZ

7 Defendants - Appellees.

EUGENIO NUNEZ PAVILLARD, as No. 11-55977 personal representative of the Estate of Jorge Nunez Piretti, deceased, D.C. No. 2:10-cv-01110-GAF-RZ

SHIRLEY MANI, as Personal No. 11-55978 Representative of the Estate of Mukesh Bacho Mani, deceased, D.C. No. 2:10-cv-01111-GAF-RZ

JOSE JESUS PLACERES PEREZ, as No. 11-55979 Personal Representative of the Estate of Ines Placeres Perez, deceased, D.C. No. 2:10-cv-01123-GAF-RZ

8 Plaintiff - Appellant,

LEANDRO ORTEGA PENA, No. 11-55980

Plaintiff - Appellant, D.C. No. 2:10-cv-01104-GAF-RZ

ANGEL FRANCISCO SANTA No. 11-55981 CASTILLO, as personal representative of the estate of Carmen Isabel Santana D.C. No. 2:10-cv-01138-GAF-RZ Castillo, deceased,

9 YOLANDA VILLANUEVA MARTIN, as No. 11-55982 co-personal representative of the estate of Alejandro Villanueva Santans, deceased; et D.C. No. 2:10-cv-01139-GAF-RZ al.,

DANIEL ESTEVEZ RUIZ, as Personal No. 11-55984 Representative of the Estates of Susana Marin Ramos, deceased, D.C. No. 2:10-cv-01119-GAF-RZ

YOLANDA VILLANUEVA MARTIN, as No. 11-55985 co-Personal Representatives of the Estate of Dara Villanueva Santana, deceased and D.C. No. 2:10-cv-01140-GAF-RZ ANGEL FRANCISCO SANTANA CASTILLO, as co-Personal Representatives of the Estate of Dara Villanueva Santana, deceased,

10 Plaintiffs - Appellants,

RAFAEL MORENO PEREZ and No. 11-55986 ANGELES CARPINTERO RUIZ, D.C. No. 2:10-cv-01127-GAF-RZ Plaintiffs - Appellants,

CONCEPCION MARIA DE LA PAZ No. 11-55988 SOTO LLOVES, as personal representative of the Estate of Cecilia D.C. No. 2:10-cv-01129-GAF-RZ Gomez Soto, deceased,

11 YOLANDA VILLANUEVA MARTIN, as No. 11-55989 co-Personal Representatives of the Estate of Keila Villanueva Santana, deceased and D.C. No. 2:10-cv-01142-GAF-RZ ANGEL FRANCISCO SANTANA CASTILLO, as co-Personal Representatives of the Estate of Keila Villanueva Santana, deceaased,

MARIA CANDELARIA PERE MATEO, No. 11-55990 as co-Personal Representatives of the Estate of Ruben Daniel Sanchez Perez, D.C. No. 2:10-cv-01125-GAF-RZ deceased and JUAN ANDRES SANCHEZ HERNANDEZ, as co-Personal Representatives of the Estate of Ruben Daniel Sanchez Perez, deceased,

12 MARIA JESUS MELIAN PEREZ, as No. 11-55991 personal representative of the estate of Araceli Yolanda Dominguez Melian, D.C. No. 2:10-cv-01141-GAF-RZ deceased,

TEREZA SUAREZ QUEBEDO, as No. 11-55992 personal representative of the estate of Jose Vicente Robaina Suarez, deceased, D.C. No. 2:10-cv-01126-GAF-RZ

MARIA JESUS MELIAN PEREZ, as No. 11-55993 personal representative of the estate of Alicia Dominguez Melian, deceased, D.C. No. 2:10-cv-01143-GAF-RZ

13 MCDONNELL DOUGLAS CORPORATION; et al.,

YOLANDA VILLANUEVA MARTIN, as No. 11-55995 Personal Representative of the Estate of Alejandro Villanueva martin, deceased, D.C. No. 2:10-cv-01133-GAF-RZ

ANGELES CARPINTERO RUIZ and No. 11-56000 RAFAEL MORENO PEREZ, her husband, D.C. No. 2:10-cv-01105-GAF-RZ

14 OZLEM ERDIL; et al., No. 11-56001

Plaintiffs - Appellants, D.C. No. 2:10-cv-07228-GAF-RZ

VICENTE GUERRERO, as personal No. 11-56005 representative of the Estate of Gabriel Guerrero, deceased, D.C. No. 2:10-cv-01112-GAF-RZ

MARIA ESTRELLA CIGALA No. 11-56009 MARRERO, as co- Personal Representatives of the Estate of Jorge D.C. No. 2:10-cv-01130-GAF-RZ Naranjo Gomez, deceased and CONCEPCION MARIA DE LA PAZ SOTO LLOVES, as co-Personal Representatives of the Estate of Jorge Naranjo Gomez, deceased,

15 v.

MARIA ESTRELLA CIGALA No. 11-56012 MARRERO, as personal representative of the estate of Jorge Naranjo Cigalo, D.C. No. 2:10-cv-01128-GAF-RZ deceased,

MARIA ESTRELLA CIGALA No. 11-56017 MARRERO, as personal representative of the estate of Raquel Naranjo Gomez, D.C. No. 2:10-cv-01131-GAF-RZ deceased and CONCEPCION MARIA DE LA PAZ SOTO LLOVES, as personal representative of the estate of Raquel Naranjo Gomez, deceased,

MCDONNELL DOUGLAS

16 CORPORATION; et al.,

EUGENIO NUNEZ PAVILLARD, as No. 11-56019 Personal Representative of the Estate of Maria Eugenia Nunez Piretti, deceased, D.C. No. 2:10-cv-01137-GAF-RZ

TANAUSU GONZALEZ OLIVA, As No. 11-56021 Personal Representative of the Estate of Tanausu Gonzalez Hernandez, D.C. No. 2:10-cv-07193-GAF-RZ

MARIANA PUYE, as Co-Personal No. 11-56024 Representative for the Estate of Mustapha

17 Puye, Deceased and ALASAN PUYE, as D.C. No. 2:10-cv-07224-GAF-RZ Co-Personal Representative of the Estate of Mustapha Puye, Deceased,

MARIANA PUYE, as Co-Personal No. 11-56025 Representative for the Estate of Sira Puye, Deceased and ALASAN PUYE, as Co- D.C. No. 2:10-cv-07225-GAF-RZ Personal Representative for the Estate of Sira Puye, Deceased,

MAXIMO DIAZ DELGADO, as personal No. 11-56026 representative of the estate of Lidia Delgado Estevez, deceased, D.C. No. 2:10-cv-01124-GAF-RZ

18 v.

JUAN DE DIOS FONT MARIN, as No. 11-56027 Personal Representative of the Estate of Maria Jesus Font Rodriguez, deceased, D.C. No. 2:10-cv-01122-GAF-RZ

MANFRED MROTZEK, as personal No. 11-56174 representative of the estate of Gerd Mrotzek, deceased, D.C. No. 2:10-cv-01134-GAF-RZ

19 MANFRED MROTZEK, as personal No. 11-56176 representative of the estate of Niklas Mrotzek, deceased, D.C. No. 2:10-cv-01135-GAF-RZ

MANFRED MROTZEK, as personal No. 11-56177 representative of the estate of Lucas Mrotzek, deceased, D.C. No. 2:10-cv-01136-GAF-RZ

IRINA HULT, as personal representative No. 11-56178 of the estate of Ann Marie Helene Hult, deceased, D.C. No. 2:10-cv-01145-GAF-RZ

20 Defendants - Appellees.

JOHAN L. RONDONUWU, as co- No. 11-56179 Personal Representative of the Estate of Nguni Toka Rondonuwu, deceased and D.C. No. 2:10-cv-01146-GAF-RZ SYULL MAINSIOUW, as co-Personal Representative of the Estate of Nguni Toka Rondonuwu, deceased,

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted December 3, 2012 Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.

This is an appeal from an order of the United States District Court for the

Central District of California, dismissing 116 consolidated suits on forum non

conveniens grounds.

This litigation arises out of a 2008 airplane accident in Madrid, in which a

21 Spanair flight crashed on takeoff, killing 154 people and injuring 18 others, none of

whom were United States citizens or residents. Two hundred and four plaintiffs,

mostly Spanish nationals, brought wrongful death and personal injury actions in

various United States district courts. The complaints asserted negligence and strict

products liability claims against Boeing Company and various component

manufacturers (“Boeing”), alleging that a takeoff warning system (“TOWS”) failed

to alert the Spanair crew to misconfiguration of the plane’s wing flaps and slats. The

Judicial Panel on Multidistrict Litigation consolidated the suits in the Central District

of California.

Boeing filed a forum non conveniens motion to dismiss, arguing that the suits

should proceed in Spain. The district court first found that the Spanish courts were

an adequate alternative forum. After weighing various private and public interest

factors, the district court granted the motion to dismiss. This appeal followed.

We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of

discretion the district court’s forum non conveniens ruling. Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 257 (1981). Finding no abuse of discretion, we affirm.

1. “At the outset of any forum non conveniens inquiry, the court must

determine whether there exists an alternative forum.” Id. at 254 n.22. This

requirement is ordinarily satisfied when the defendant agrees to submit to the

22 jurisdiction of the alternative forum, id., and Boeing has agreed to submit to the

jurisdiction of the Spanish courts. Plaintiffs argued below that the Spanish courts

were not an adequate forum because civil claims could be stayed there while criminal

proceedings were pending. But, because all Spanish criminal proceedings have

concluded, these concerns are now moot.

2. In determining whether a suit should be dismissed on grounds of forum non

conveniens, the private interest factors to be considered include:

(1) the residence of the parties and the witnesses; (2) the forum’s convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) “all other practical problems that make trial of a case easy, expeditious and inexpensive.”

Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir. 2001) (quoting Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). The district court carefully discussed

each of these factors in its order of dismissal.

Plaintiffs argue that in considering the costs of bringing witnesses to trial, the

district court did not grant proper weight to the willingness of Plaintiffs to travel to the

Central District. But, as the district court noted, the plaintiffs’ travel costs are not the

only relevant considerations; there are also costs associated with bringing other

witnesses to trial. The district court’s conclusion that the greater costs of proceeding

23 in the United States slightly favored dismissal was not unreasonable.

Plaintiffs also argue that the district court improperly focused on witnesses and

physical evidence in Spain. They characterize this evidence as unimportant because

Plaintiffs have agreed to stipulate to the negligence of the flight crew, Spanair, and

airport personnel, and their claims concern only a defect in the design of the TOWS

system. Boeing contests that any TOWS defect was the proximate cause of the

accident. It argues that the negligence of the crew and ground personnel caused the

accident and, alternatively, that the fault of various Spanish actors should reduce any

of the manufacturers’ liability. The district court recognized the parties’ differing

theories of the case, and properly found that cockpit recordings, information about the

crash, and the results of investigations by Spanish authorities would be more difficult

to access in the United States than in Spain. See Lueck, 236 F.3d at 1146-47.

Plaintiffs further argue that because Spanair has filed for bankruptcy in Spain,

the private factors no longer weigh in favor of that forum. But that filing, which

occurred after the district court’s order of dismissal, does not mean that Spanair

employees are not relevant witnesses since we could not find a part of the record

discussing whether Spanish law will limit Plaintiffs’ ability to lay claims against the

airline’s assets, insurers, or employees.

3. The public interest factors include: “(1) local interest of [the] lawsuit; (2)

24 the court’s familiarity with governing law; (3) burden on local courts and juries; (4)

congestion in the court; and (5) the costs of resolving a dispute unrelated to this

forum.” Lueck, 236 F.3d at 1147. The district court’s order also carefully balanced

these factors.

Plaintiffs argue that the district court improperly discounted California’s

interest as the site of the airplane’s manufacturer. The district court did not abuse its

discretion, however, in giving greater weight to Spain’s interest as the locale of the

crash site and home of the majority of the decedents. See Piper, 454 U.S. at 260-61.

Plaintiffs also argue that the district court inappropriately relied upon docket

congestion in the Central District in ordering dismissal. Although a district court

cannot rely solely on congestion when dismissing for forum non conveniens, it may

consider congestion as one of several relevant factors, as the court did here. See Gates

Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984).

4. Finally, Plaintiffs argue that the district court should have retained

jurisdiction to resolve future discovery disputes. A district court’s decision whether

to place conditions on a forum non conveniens dismissal is reviewed for abuse of

discretion. Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir.

2011). Plaintiffs have not demonstrated such an abuse. Discovery disputes are not

unusual in complex litigation, and there has been no showing that Boeing is unlikely

25 to participate in any discovery that is permitted under Spanish law or that future

discovery disputes mandate retention of jurisdiction.

AFFIRMED.