Jaramillo Ballesteros v. Boeing Company

• Court: District Court, W.D. Washington
• Decided: April 3, 2023
• Docket: 2:22-cv-00393
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 MARIA DEL ROSSARIO JARAMILLO BALLESTEROS, as 8 Personal Representative of the ESTATE OF JAIME CARRILLO 9 MONTENEGRO, and as Guardian of M.F.C.J., a minor; and RAQUEL 10 JAVELA ROJAS as Personal Representative of the ESTATE OF 11 JAIME EDUARDO HERRERA C22-0393 TSZ ROMERO, and as Guardian of 12 J.M.H.J., a minor, ORDER 13 Plaintiffs, 14 v. 15 THE BOEING COMPANY, 16 Defendant.

17 THIS MATTER comes before the Court on a motion to dismiss for forum non 18 conveniens, docket no. 31, brought by defendant The Boeing Company (“Boeing”). 19 Having reviewed all papers filed in support of, and in opposition to, the motion, and 20 having determined that oral argument is unnecessary, the Court enters the following 21 Order. 22 1 Background 2 On March 9, 2019, an aircraft operated by Latinoamericana de Servicios Aéreos 3 (“LASER”), a Colombian airline, crashed during a domestic flight between San José del

4 Guaviare and Villavicencio, Colombia. See Accident Report at 7, Ex. A to Ledford Decl. 5 (docket no. 32-1 at 57). The aircraft in question (the “Aircraft”) was designed in 6 California and manufactured in Oklahoma by the Douglas Aircraft Company (“Douglas”) 7 during World War II. See McIntosh Decl. at ¶ 4 (docket no. 33); Ex. D to Ledford Decl. 8 (docket no. 32-4). Douglas subsequently merged with McDonnell Aircraft and became

9 McDonnell Douglas Corporation. McIntosh Decl. at ¶ 4. Although Boeing did not 10 manufacture the Aircraft, Plaintiffs bring this action against it as the successor-in-interest 11 to McDonnell Douglas following Boeing’s acquisition of the company in 1997. See id.; 12 Compl. at ¶¶ 20–21 (docket no. 1-2). 13 Available records indicate that the Aircraft, a Douglas C-47 Skytrain (a military

14 variant of the Douglas DC-3), was delivered to the United States Army Air Force on 15 April 21, 1945. See Ex. D to Ledford Decl.; Compl. at ¶ 3. On May 14, 1945, the 16 Aircraft was transferred to the United States Navy. See Ex. C to Ledford Decl. (docket 17 no. 32-3); Compl. at ¶ 3. The Aircraft was later transferred to the University of Texas at 18 Austin on October 8, 1971. See Ex. C to Ledford Decl.; Compl. at ¶ 3. On August 6,

19 1980, the Aircraft was certified and registered with the United States Federal Aviation 20 Administration for commercial use before it was subsequently deregistered and exported 21 22 1 to Colombia on October 29, 1980, where it continued to operate until the date of the 2 accident.1 See Ex. B to Ledford Decl. (docket no. 32-2); Ex. C to Ledford Decl. 3 On the date of the crash at issue, March 9, 2019, the Aircraft was equipped with

4 two Pratt & Whitney engines, each attached to a Hamilton Standard propeller.2 Compl. 5 at ¶ 4. Approximately 11 minutes after take-off, at an altitude of 8,500 feet, the Aircraft 6 experienced a malfunction in its left engine. See Accident Report at 7 (docket no. 32-1 at 7 57). In response to the malfunction, the crew shut down the left engine and attempted to 8 “feather” its propeller. Id. at ¶ 2.6 (docket no. 32-1 at 90). Feathering refers to the

9 process of rotating propeller blades parallel to wind direction, thereby reducing 10 aerodynamic drag. See id. at ¶ 1.18.1 (docket no. 32-1 at 83). In a radio transmission to 11 local air traffic control, the crew reported that they were not successful in activating the 12 left engine’s propeller feathering system. Id. at ¶ 1.1 (docket no. 32-1 at 60). Due to a 13 continuous loss of altitude, the pilot decided to attempt an emergency landing at a nearby

14 airfield. Id. The crew, however, was unable to maintain control of the Aircraft and it 15 crashed at a site known as Finca La Bendición in San Martín, Colombia. Id. (docket 16 no. 32-1 at 61). All occupants (three crew members and 11 passengers) suffered fatal 17 injuries. See id. at 7 (docket no. 32-1 at 57). 18

19 1 On May 16, 2009, the Aircraft’s left engine “underwent major overhaul” at a repair facility in Florida. See Accident Report at ¶ 1.6.5, Ex. A to Ledford Decl. (docket no. 32-1 at 67); Ledford Decl. at ¶ 8 20 (docket no. 32). During the 10 years preceding the accident, all other maintenance of the Aircraft’s engines was performed in Colombia. Ledford Decl. at ¶ 8. 21 2 Plaintiffs allege that the Aircraft was originally designed and manufactured with these engines and 22 propellers. Compl. at ¶ 4 (docket no. 1-2). 1 Following the accident, Colombia’s accident investigation authority, Grupo de 2 Investigación de Accidentes Aéreos Colombia (“GRIAA”), initiated an investigation.3 3 GRIAA concluded that the probable causes of the accident were the crew’s inability to

4 feather the propeller following a malfunction in the left engine’s lubrication system (loss 5 of oil pressure) and certain weaknesses in LASER’s operational procedures. Accident 6 Report at 7–8 (docket no. 32-1 at 57–58). As GRIAA explained in its report, without 7 sufficient oil pressure, the propeller feathering system, which uses the same oil as the 8 engine lubrication system, failed to operate. Id. at ¶ 2.2 (docket no. 32-1 at 86–87)

9 (“[W]hen the [lubrication] system loses oil pressure, the propeller feathering function 10 becomes inoperative.”). Although GRIAA could not identify with certainty the location 11 where the oil pressure loss occurred, it found evidence of “improper and non-standard” 12 maintenance practices on the left engine’s “propeller feathering oil pressure line.” Id. at 13 ¶ 3.1.2 (docket no. 32-1 at 93).

14 Plaintiffs are the personal representatives and families of the two Colombian 15 pilots killed in the accident. Compl. at ¶¶ 1, 11–16. At the time of accident, the decedent 16 pilots were residents and citizens of Colombia, and none of their beneficiaries resided in 17 18

19 3 Pursuant to Annex 13 of the Convention on International Civil Aviation, the United States National 20 Transportation Safety Board (“NTSB”) assigned one representative to assist in the investigation because the Aircraft was designed and manufactured in the United States. Accident Report at ¶ 1.1 (docket 21 no. 32-1 at 62); McIntosh Decl. at ¶ 2 (docket no. 33). Neither GRIAA nor the NTSB asked Boeing to participate in the investigation or provide any documents or information regarding the Aircraft. McIntosh 22 Decl. at ¶ 3. 1 the United States.4 Id. at ¶¶ 15–16; Pls.’ Resps. to Reqs. for Admis. Nos. 1–5, Exs. F & 2 H to Ledford Decl. (docket nos. 32-6 & 32-8). Plaintiffs Maria Del Rossario Jaramillo 3 Ballesteros, M.F.C.J., Raquel Javela Rojas, J.M.H.J., and all other beneficiaries of the

4 Carrillo Montenegro and Herrera Romero estates are Colombian citizens. Pls.’ Resps. to 5 Interrog. No. 1, Exs. G & I to Ledford Decl. (docket no. 32-7 & 32-9). None of the 6 passengers or crew were residents or citizens of the United States. 7 Plaintiffs commenced this action in King County Superior Court and Boeing 8 removed the case to this Court. See Notice of Removal (docket no. 1). Plaintiffs bring

9 two causes of action against Boeing: (i) violation of the Washington Product Liability 10 Act (“WPLA”), RCW Chapter 7.72; and (ii) common law negligence. Compl. at ¶¶ 31– 11 49. Boeing now moves to dismiss this action for forum non conveniens in favor of 12 refiling in Colombia. As a condition to a forum non conveniens dismissal of this action, 13 Boeing agrees to submit to personal jurisdiction in Colombia in any action refiled there

14 by Plaintiffs within 120 days of this Order. Ledford Decl. at ¶ 2. Boeing also agrees to 15 make available any documents, witnesses, and/or other evidence within its custody or 16 control that the Colombian courts deem relevant, and to pay any damages awarded by the 17 Colombian courts in such actions, subject to any right of appeal. Id. For the following 18 reasons, the Court GRANTS Boeing’s motion to dismiss.

19 20

21 4 Plaintiff Raquel Javela Rojas now resides in Fremont, CA. Pls.’ Resp. to Interrog. No. 1, Ex. I to 22 Ledford Decl. (docket no. 32-9). 1 Discussion 2 A district court may, in its discretion, “decline to exercise jurisdiction in a case 3 where litigation in a foreign forum would be more convenient for the parties.” Lueck v.

4 Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001) (citing Gulf Oil Corp. v. Gilbert, 5 330 U.S. 501, 504 (1947)). When asked to dismiss an action on the ground of forum non 6 conveniens, the district court must examine (1) “whether an adequate alternative forum 7 exists,” and (2) “whether the balance of private and public interest factors favors 8 dismissal.”5 Id.

9 1. Available and Adequate Alternative Forum 10 An alternative forum is “available” where the defendant is amenable to service of 11 process and “adequate” when it provides the plaintiff with “some remedy for his wrong.” 12 Id. at 1143. As the Ninth Circuit has recognized, the test is “easy to pass.” Tuazon v. 13 R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006). A foreign forum is

14 typically considered inadequate only when the remedy it provides “is so clearly 15 inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft Co. v. Reyno, 454 16 U.S. 235, 254 (1981). Boeing bears the burden of proving the existence of an adequate 17 alternative forum. See Lueck, 236 F.3d at 1143. 18

20 5 The Ninth Circuit has also held that a district court must make a choice of law determination. Lueck, 21 236 F.3d at 1143. The choice of law analysis, however, “is only determinative when the case involves a United States statute requiring venue in the United States, such as the Jones Act or the Federal 22 Employers’ Liability Act.” Id. at 1148. No such statute is implicated in this action. 1 Boeing has identified Colombia as an alternative forum for this dispute and has 2 provided a declaration from a Colombian attorney and former judge, Arturo Solarte 3 Rodríguez, explaining that the parties are within the jurisdiction of Colombian courts for

4 any claims arising from the accident. Rodríguez Decl. at ¶¶ 1, 64–66 (docket no. 35). 5 Further, Boeing has represented to this Court that it will consent to jurisdiction in 6 Colombia as a condition to a forum non conveniens dismissal. See Ledford Decl. at ¶ 2. 7 Plaintiffs do not dispute that the parties are amenable to process in Colombia and the 8 Court therefore concludes that Colombia is an “available” alternative forum.

9 Instead, Plaintiffs contend that Colombia is not an “adequate” forum because they 10 will not be able to pursue their product liability claim in light of GRIAA’s final 11 investigative report.6 Resp. at 2 (docket no. 37). In support of this argument, Plaintiffs 12 have submitted the Declaration of Felipe Piquero, docket no. 36, a Colombian attorney. 13 According to Piquero, “GRIAA’s reports play an authoritative role in [Colombian] civil

14 litigation” because GRIAA’s findings “cannot be challenged in a Colombian court” and 15 represent the “sole source of expert evidence” that Colombian courts will consider. 16 Piquero Decl. at ¶ 6 (docket no. 33). Piquero declares that Colombian judges have given 17 “full evidentiary value and proof” to GRIAA’s reports in all prior cases seeking civil 18 liability for aviation accidents. Id. at ¶ 7. Piquero’s declaration, however, does not

19 contain a single citation to any legal authority. 20 21 22 6 Plaintiffs do not argue that they are unable to pursue their negligence claim in Colombian courts. 1 In contrast, Boeing has submitted the Supplemental Declaration of Rodríguez, 2 docket no. 40, which explains that GRIAA’s reports do not prevent the filing of civil 3 liability actions in Colombia because the reports are “not intended to determine fault or

4 liability.” Suppl. Rodríguez Decl. at ¶¶ 3–4 (docket no. 40). Indeed, the GRIAA report 5 at issue in this action specifically provides that it is not “intended to indicate fault or 6 liability,” Accident Report at 2 (docket no. 32-1 at 52), and at least one Colombian court 7 has found that GRIAA’s conclusions can be contested, Suppl. Rodríguez Decl. at ¶ 5 8 (“[T]he Civil Cassation Chamber of the Supreme Court of Justice explained in Judgment

9 SC4103-2021 of September 16, 2021, that these reports, as with all evidence, must be 10 assessed in conjunction with all other items of evidence submitted in the proceeding, this 11 in consideration of the rules of sound judgment.”); see also Annex 1 to Suppl. Rodríguez 12 Decl. (docket no. 40-1) (containing excerpts from Colombian case law). 13 Importantly, Plaintiffs do not dispute Boeing’s assertion that Colombian courts

14 can adjudicate actions involving product liability or negligence claims (i.e., that 15 Colombian courts provide them some practical remedy). Rather, Plaintiffs’ sole 16 argument regarding the alleged inadequacy of Colombian courts concerns whether 17 Plaintiffs are likely to succeed on the merits of their product liability claim in Colombia. 18 Dismissal on the ground of forum non conveniens, however, “may be granted even

19 though the law applicable in the alternative forum is less favorable to the plaintiff’s 20 chance of recovery.” Lewis v. Liberty Mut. Ins. Co., 953 F.3d 1160, 1168 (9th Cir. 2020) 21 (quoting Piper Aircraft, 454 U.S. at 250); see also In re Air Crash Over Taiwan Straits 22 on May 25, 2002, 331 F. Supp. 2d 1176, 1184–86 (C.D. Cal. 2004) (explaining that the 1 plaintiffs’ inability to bring strict products liability claims in Taiwan did not render the 2 forum inadequate because other claims were available to them). That a Colombian court 3 might place significant weight on GRIAA’s findings and conclusions does not mean that

4 Colombia is an inadequate alternative forum, and the Court finds Colombia to be an 5 available and adequate forum in which Plaintiffs can pursue their claims. 6 2. Private and Public Interest Factors 7 Boeing having established the availability and adequacy of Colombia as an 8 alternative forum, the Court must determine whether private and public interest factors

9 weigh in favor of dismissal. “Ordinarily, a plaintiff’s choice of forum will not be 10 disturbed unless the ‘private interest’ and the ‘public interest’ factors strongly favor trial 11 in a foreign country.” Lueck, 236 F.3d at 1145 (quoting Gulf Oil, 330 U.S. at 509). 12 Although a plaintiff’s choice of forum is “entitled to greater deference when the plaintiff 13 has chosen the home forum,” Piper Aircraft, 454 U.S. at 255, “this assumption is much

14 less reasonable” when the plaintiff is foreign, id. at 256. Thus, Plaintiffs’ choice of 15 forum in this action is entitled to less deference because, with one exception, they are not 16 United States residents. Notably, Plaintiffs’ four-page response largely ignores Boeing’s 17 arguments regarding the various private and public interests, and Plaintiffs argue in a 18 cursory fashion that “the public and private factors generally sway in keeping the case” in

19 Boeing’s home country. Resp. at 2. The Court disagrees with Plaintiffs and concludes 20 that the relevant factors support dismissal of this action in favor of refiling in Colombia. 21 22 1 a. Private Interest Factors 2 District courts consider any or all of the following private interest factors: (i) “the 3 residence of the parties and witnesses”; (ii) “the forum’s convenience to the litigants”;

4 (iii) “access to physical evidence and other sources of proof”; (iv) “whether unwilling 5 witnesses can be compelled to testify”; (v) “the cost of bringing witnesses to trial”; 6 (vi) “the enforceability of the judgment”; and (vii) “all other practical problems that make 7 trial of a case easy, expeditious and inexpensive.” Lueck, 236 F.3d at 1145 (citations 8 omitted). The balance of these factors overwhelmingly favors litigation in Colombia.

9 A significant amount of crucial documentary and physical evidence in this action 10 is located in Colombia, including LASER’s maintenance, training, and operations 11 records, GRIAA’s investigative records, and the Aircraft’s wreckage. Further, many 12 relevant witnesses are located in Colombia, including personnel with knowledge of 13 LASER’s maintenance practices and procedures. Without access to this evidence,7

14 Boeing argues that it cannot defend against Plaintiffs’ claim that the accident was caused 15 by defects in the Aircraft’s design, as opposed to LASER’s allegedly non-standard or 16 improper maintenance practices on the left engine’s lubrication system. Although some 17 relevant evidence is likely under Plaintiffs’ control, such as the decedents’ medical and 18

19 20 7 Plaintiffs do not dispute that this Court cannot secure the appearance of Colombian witnesses or order 21 the production of much of the evidence relevant to Boeing’s defense, or that Colombian judges lack authority to order Colombian witnesses, such as LASER’s maintenance personnel, to travel to the United 22 States. See Rodríguez Decl. at ¶ 94. 1 financial records, many of the documents and witnesses necessary to support Boeing’s 2 defense in this action are under the control of LASER or the Colombian government. 3 In contrast, few, if any, witnesses in the United States have first-hand knowledge

4 of the design and/or manufacture of a 77-year-old airplane. If this case was tried in the 5 United States, Boeing would likely be unable to obtain the appearance of the witnesses it 6 requires to present its defense, and the process for obtaining relevant documentary 7 evidence would be lengthy and uncertain. Id. at ¶ 95. If, however, this case was tried in 8 Colombia, Colombian courts would have the legal authority to obtain relevant evidence

9 from Colombian governmental entities and third parties such as LASER and to secure the 10 appearance of witnesses for both sides, id. at ¶ 93, and Boeing has committed to make 11 available any documents or witnesses within its custody or control that the Colombian 12 courts deem relevant, Ledford Decl. at ¶ 2. 13 In reaching the conclusion that the location of relevant witnesses and evidence

14 strongly favors dismissal, the Court’s focus does “not rest on the number of witnesses or 15 quantity of evidence in each locale.” See Lueck, 236 F.3d at 1146. Important evidence in 16 this action exists in both the United States and Colombia. Rather, the Court recognizes 17 that it cannot compel the production of Colombian evidence or secure the appearance of 18 any Colombian witnesses Plaintiffs and/or Boeing require to present their claims or

19 defenses, respectively. 20 Another factor that weighs strongly in favor of dismissal is Boeing’s inability to 21 join third-party defendants such as LASER in this action. LASER does not operate in 22 Washington, meaning that the Court’s ability to acquire jurisdiction over the airline is 1 doubtful. See, e.g., Baumgart v. Fairchild Aircraft Corp., No. SA-90-CA-818, 1991 WL 2 487242, at *6 (W.D. Tex. Sept. 30, 1991) (“While the Court has jurisdiction over the 3 estate of the pilot due to the estate’s filing a cause of action that is now in this Court, the

4 Court does not and cannot acquire jurisdiction over [the foreign airline].”). In light of 5 GRIAA’s findings regarding LASER’s maintenance practices, the Court concludes that 6 Boeing would be prejudiced if this action proceeded in LASER’s absence. Colombia, 7 unlike the United States, is a “superior forum” because “actions and/or claims can be 8 consolidated there.” See In re Air Crash Over Mid-Atlantic on June 1, 2009, 760 F.

9 Supp. 2d 832, 844 (N.D. Cal. 2010); see also Rodríguez Decl. at ¶ 69 (explaining how 10 Boeing could request that LASER be joined in any legal proceedings in Colombia). 11 b. Public Interest Factors 12 The public interest factors also weigh strongly in favor of dismissal. District 13 courts consider the following public interest factors: (i) “local interest of lawsuit”;

14 (ii) “the court’s familiarity with governing law”; (iii) “burden on local courts and juries”; 15 (iv) “congestion in the court”; and (v) “the costs of resolving a dispute unrelated to this 16 forum.” Lueck, 236 F.3d at 1147 (citing Piper Aircraft, 454 U.S. at 259–61, and Gulf 17 Oil, 330 U.S. at 508–09). Although plaintiff Raquel Javela Rojas now resides in 18 Fremont, CA, neither she nor any other plaintiff resides in this District. And, although

19 Boeing has significant operations in the Western District of Washington, the Aircraft, a 20 World War II-era Douglas C-47, was not designed or manufactured by Boeing. Other 21 than Boeing’s position as the successor-in-interest to McDonnell Douglas, the record 22 contains no connection between the Aircraft and the Western District of Washington. 1 The accident in question occurred when an aircraft maintained and operated by a 2 Colombian airline, piloted by Colombians, and carrying Colombian passengers, crashed 3 in Colombia, while on a domestic Colombian route. Plaintiffs cannot dispute that

4 Colombia has a significant interest in this action. “Because the local interest in this 5 lawsuit is comparatively low, the citizens of [Washington] should not be forced to bear 6 the burden of this dispute.” See Lueck, 236 F.3d at 1147. 7 Conclusion 8 For the foregoing reasons, the Court ORDERS:

9 (1) Boeing’s motion to dismiss for forum non conveniens, docket no. 31, is 10 GRANTED, and this action is DISMISSED without prejudice in favor of refiling in 11 Colombia. Colombia is an available and adequate alternative forum and the relevant 12 private and public interest factors weigh strongly in favor of dismissal. As a condition of 13 this Order, Boeing shall make itself amenable to suit in Colombia and must abide by all

14 representations made in its motion and the Declaration of Christopher Ledford, docket 15 no. 32. 16 (2) The Clerk is DIRECTED to CLOSE this case and to send a copy of this 17 Order to all counsel of record. 18 IT IS SO ORDERED.

19 Dated this 3rd day of April, 2023. 20 A

21 Thomas S. Zilly 22 United States District Judge