Fortaner v. Boeing Co.

504 F. App'x 573

Opinion

MEMORANDUM

Footnotes

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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 conve-niens grounds.

This litigation arises out of a 2008 airplane accident in Madrid, in which a Spa-nair 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. 285, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (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, 102 S.Ct. 252. This requirement is ordinarily satisfied when the defendant agrees to submit to the 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., 286 F.3d 1137, 1145 (9th Cir.2001) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (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 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) 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, 102 S.Ct. 252. 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 conve-niens, 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 to participate in any discovery that is permitted under Spanish law or that future discovery disputes mandate retention of jurisdiction.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.