Harp v. Airblue Ltd.

879 F. Supp. 2d 1069, 2012 WL 3038599, 2012 U.S. Dist. LEXIS 106066
CourtDistrict Court, C.D. California
DecidedMarch 28, 2012
DocketCase No. SACV 10-01780 AG (RZx)
StatusPublished
Cited by3 cases

This text of 879 F. Supp. 2d 1069 (Harp v. Airblue Ltd.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harp v. Airblue Ltd., 879 F. Supp. 2d 1069, 2012 WL 3038599, 2012 U.S. Dist. LEXIS 106066 (C.D. Cal. 2012).

Opinion

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS

ANDREW J. GUILFORD, District Judge.

This case arises out of a July 2008 plane crash near Islamabad, Pakistan that killed all 152 people onboard. Plaintiffs Roderick Harp, Special Administrator of the Estate of Rosie Mae Ahmed, deceased, Aftab Ahmad Shahid, Special Administrator of the Estates of Mubashir Shahid, deceased, and Tariq Shahid, deceased, Tahira Nisar, Special Administrator of the Estate of Owais Ahmend Khan, deceased, Harris Saeed Lodhi, Special Administrator of the Estate of Shireen Lodhi, deceased, and Waseem Ahmed, Special Administrator of the Estate of Saleem Ahmed, deceased (together, “Plaintiffs”) sued Defendant Airblue, LTD, (“Defendant”) for negligently operating the plane and causing the crash.

Defendants filed a Motion to Dismiss on the grounds of forum non conveniens (“Motion”) in July 2011. Briefing on the Motion was continued several months by stipulation of the parties. In early November 2011, the Court issued a tentative order granting the Motion. After considering the arguments presented at the November 14, 2011 hearing on the Motion, the Court ordered the parties to discuss settlement possibilities with Magistrate Judge Zarefsky. The Court informed the parties that its final Order would issue following the settlement process.

A settlement agreement has been reached between Defendants and Plaintiffs Shahid, Nisar, Lodhi, and Ahmed (the “Non-Citizen Plaintiffs”), but not yet executed. On March 26, 2012, the Court granted the Non-Citizen Plaintiffs’ request for dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2). A settlement agreement was also reached between Defendants and Plaintiff Harp.

The Court now issues its Order GRANTING Defendants’ Motion.

BACKGROUND

The facts of this case are largely undisputed. On July 28, 2010, Airblue Flight 202 (“Flight 202”) crashed during its final approach to Benazir Bhutto International Airport in Islamabad, Pakistan. (Complaint ¶¶ 2-6.) Tragically, all 152 passengers and crewmembers onboard perished. Among the deceased were 145 Pakistani citizens, two U.S. citizens, one Austrian citizen, one Australian citizen, one Somali citizen, and two British citizens. (Declaration of Shahid Abbasi in Support of Motion (“Abbasi Deck”) ¶¶ 7-12.)

Flight 202 originated in Karachi, Pakistan and was operated by Defendant. [1072]*1072(Complaint ¶ 2; Abbasi Decl. ¶¶ 3, 5.) Defendant’s headquarters and principal place of business are in Islamabad. Defendant is regulated by Pakistan’s Civil Aviation Authority and has never operated flights to or from the United States. (Abbasi Decl. ¶ 24.)

In November 2010, Plaintiffs sued in Orange County Superior Court asserting negligence claims against Defendant, Zap-ways, Inc., and Tariq M. Chaudhary. (Complaint ¶ 5.) Defendant timely removed the case to this Court, and Zapways, Inc. and Chaudhary were soon dismissed from the action.

Four of the five Plaintiffs and five of the six decedents in this action are alleged to be citizens of an unidentified foreign country, presumably Pakistan. Only one of the Plaintiffs, Roderick Harp, is alleged to be a U.S. citizen. (Complaint ¶ 1.) Plaintiff Harp is suing as Special Administrator of the Estate of his mother, Rosie Mae Ahmed, a U.S. citizen and resident of Georgia who died in the accident. (Id.) ANALYSIS

“The forum non conveniens determination is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). To grant a motion to dismiss on forum non conveniens grounds, a district court must determine “(1) whether an adequate alternative forum exits, and (2) whether the balance of public and private interest factors favors dismissal.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir.2001) (citing Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252). The Court first considers whether Pakistan is an adequate alternative forum.

1. ADEQUACY OF THE ALTERNATIVE FORUM

“An alternative forum is deemed adequate if: (1) the defendant is amenable to process there; and (2) the other jurisdiction offers a satisfactory remedy.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1225 (citing Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252). The determination of adequacy should be made on a case-by-base basis with the party moving for dismissal bearing the burden of proof. Leetsch v. Freedman, 260 F.3d 1100, 1103 (9th Cir.2001). Both requirements are satisfied here because Defendant has demonstrated that it is subject to process in Pakistan and that Pakistan offers Plaintiffs a satisfactory, though not optimal, remedy.

1.1 Whether Defendant is Amenable to Process in Pakistan

Plaintiffs assert that Pakistan is not an “available forum,” but never argue that Defendant can’t be served or sued there. (Plaintiffs’ Opposition to Defendant’s Motion (“Opp’n”) at 4:21-22.) Defendant — a Pakistani air carrier regulated by the CAA — is subject to the jurisdiction of the Pakistani civil courts for claims arising from the accident. (Zahid Decl. ¶¶ 47-52.) Defendant has also agreed to submit to the jurisdiction of Pakistani courts. See Carijano, 643 F.3d at 1225 (The district court “correctly determined that defendant’s voluntary submission to service of process suffices to meet the first requirements for establishing an adequate alternative forum.” (internal citations omitted)).

1.2 Whether Pakistan Offers a Satisfactory Remedy

“Dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiffs chance of recovery.” Piper Aircraft, 454 U.S. at 250, 102 S.Ct. 252. Only if “the remedy provided ... is so clearly [1073]*1073inadequate or unsatisfactory that it is no remedy at all” would the alternative forum be considered inadequate. Id, at 254 n. 22, 102 S.Ct. 252; see also Lueck, 236 F.3d at 1144 (“The effect of Piper Aircraft is that a foreign forum will be deemed adequate unless it offers no practical remedy for plaintiffs complained of wrong.”).

Plaintiffs argue that Pakistan is an inadequate forum because of (1) systemic corruption in its judicial system and potential bias against Plaintiff Harp; (2) lengthy delays in reaching trial; (3) obstacles to discovery; and (4) prohibitively high costs of obtaining local counsel. Plaintiffs also argue that Pakistan is inadequate because it is so dangerous that Plaintiff Harp and his witnesses cannot, and will not, travel there. The Court examines these arguments in turn.

1.2.1 Systemic Corruption and Bias in the Pakistani Judicial System

Plaintiffs claim that rampant corruption in Pakistan’s judicial system renders it an inadequate forum.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Babasola Kolawole v. Stacy Sellers
863 F.3d 1361 (Eleventh Circuit, 2017)
Wye Oak Technology, Inc. v. Republic of Iraq
941 F. Supp. 2d 53 (District of Columbia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
879 F. Supp. 2d 1069, 2012 WL 3038599, 2012 U.S. Dist. LEXIS 106066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harp-v-airblue-ltd-cacd-2012.