[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 00-11938 ________________________
D.C. Docket No. 98-07128-CV-LCN
JULIO IGNACIO LOURIDO LEON, GINA MERCEDES VALDIVIESO SANTOS, et al.,
Plaintiffs-Appellants, versus
MILLON AIR INC., a Florida corporation, MILLON AIR CARGO, INC., a Florida corporation et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Florida _______________________ (May 21, 2001)
Before EDMONDSON, FAY and NEWMAN*, Circuit Judges.
NEWMAN, Circuit Judge: _________________________
*Honorable Jon O. Newman, U.S. Circuit Judge for the Second Circuit, sitting by designation. This appeal concerns application of the doctrine of forum non conveniens in the
context of a fatal airplane crash. The appeal is from the May 17, 1999, order of the
District Court for the Southern District Florida (Lenore C. Nesbitt, District Judge)
dismissing on the ground of forum non conveniens a suit by Julio Ignacio Lourido
Leon and numerous other plaintiffs, all of whom are citizens of Ecuador. The suit was
brought against Millon Air, Inc. (“Millon Air”), an air cargo carrier and other
defendants whom the plaintiffs claim are responsible for the October 22, 1996, crash
of a cargo-carrying aircraft owned and operated by Millon Air. The plane, which had
no passengers, crashed shortly after take-off from Manta, Ecuador. In addition to
killing the three members of the crew (who are not plaintiffs) the crash killed 30
residents of Ecuador living in the neighborhood of the crash site, and injured many
others. The appeal is also from the District Court's March 29, 2000, order denying the
Plaintiffs' motions for new trial under Fed. R. Civ. P. 59 and 60. We conclude that the
District Judge did not exceed her discretion in dismissing the suit, but that the
dismissal should have been appropriately conditioned. We therefore modify the order
of dismissal, affirm the order as modified, and affirm the denial of the motion for new
trial.
2 Procedural History
More than 700 people allegedly injured by the crash have filed approximately
100 lawsuits in state and federal courts in the United States. In 1997, thirty-six of the
cases in the Southern District of Florida were consolidated before Judge Nesbitt under
Case No. 96-3165, which is referred to in the pending litigation as Cedeno v. Millon
Air (although its caption is Joza, et al v. Millon Air). On January 12, 1998, Judge
Nesbitt dismissed the consolidated Cedeno cases on the ground of forum non
conveniens. The Court retained jurisdiction “over the enforcement of the concessions
made by the Defendants and approved by this Court.” Cedeno Op. at 12. These were
(1) concession of “primary liability for damage caused” by the crash, (2) acceptance
of service and jurisdiction of the Ecuadorian courts, (3) waiver of statute of limitations
defenses, and (4) satisfaction of any final judgments entered by the Ecuadorian courts.
Id. The Cedeno plaintiffs timely appealed.
On January 27, 1998, the Congress of Ecuador enacted “Law No. 55,” which
provides:
Without affecting its literal meaning, articles 27, 28, 29 and 30 of the Civil Procedure Law, are hereby interpreted so that, in case of international concurrent jurisdiction, the plaintiff can freely choose to demand [i.e., to file a complaint], in Ecuador or in another country, with the sole exception of cases which -- pursuant to an explicit provision of law, must be resolved by Ecuadorian Judges, like the divorce of an Ecuadorian citizen . . . . In the case that the demand is filed outside of
3 Ecuador, the national competence and the jurisdiction of the Ecuadorian Judges on the case will be terminated forever.
In December 1997, just prior to the enactment of Law No. 55, a Broward
County state court dismissed a consolidated action brought against Millon Air by 106
Ecuadorans allegedly injured by the crash. Some of these plaintiffs subsequently filed
suit in an Ecuadorian court of first instance, which in April 1998 dismissed the case
because of Law No. 55.
This development prompted the Cedeno plaintiffs in September 1998 to ask this
Court to stay the Cedeno appeal and remand the case to the District Court.
Meanwhile, on October 13, 1998, the Superior Court of Justice of Portoviejo
(Ecuador) reversed the trial court’s decision in the case involving the 106 plaintiffs
in the Broward County suit, holding that Law No. 55 did not apply to cases that a
United States court had dismissed because of forum non conveniens. “It should be
supposed that law 55 is in effect when a foreign judge has taken up the cause and is
hearing it, but not in a case in which the foreign judge has refused to hear the lawsuit,
as has done the Broward County Judge in his decision.”
Ultimately, this Court remanded the Cedeno litigation to the District Court,
without adjudicating the correctness of the forum non conveniens dismissal.
On October 15, 1998, the Plaintiffs in the pending case (“Plaintiffs” or “Leon
4 Plaintiffs”) filed their complaint in the Southern District of Florida. The Defendants
and counsel were the same as in the Cedeno action. In December 1998, the
Defendants filed a motion to dismiss the Leon action based on forum non conveniens.
The motion included affidavits from American and Ecuadorian lawyers, vouching for
the adequacy of the Ecuadorian legal system. In April 1999, the Plaintiffs responded
to the Millon Air motion, first by informal letter and then by a formal pleading. In
their formal Response, the Plaintiffs argued that the Ecuadorian legal system was so
fragile that it was not an effective forum to decide the case. They alleged that the
Ecuadorian legal system was in turmoil and had been recently shut down by a strike
of the judges. The Plaintiffs said they were “rely[ing] on prior filings” (presumably
from the Cedeno case). The Leon plaintiffs also discussed the possibility (in their
informal letter, which was appended as an exhibit to the formal pleading) that Law
No. 55 had eliminated the jurisdiction of the Ecuadorian courts.
On May 17, 1999, Judge Nesbitt entered an order dismissing the case on the
ground of forum non conveniens. Noting the marked similarity between the Leon and
the Cedeno cases, she relied primarily on her reasons for dismissing Cedeno
(described below), adding only explicit consideration of Law No. 55. On that issue,
she acknowledged that Law No. 55 had been enacted since her Cedeno decision, but
said that the Ecuadorian appellate court had ruled that Law No. 55 did not bar an
5 Ecuadorian court from hearing claims dismissed because of forum non conveniens.
Judge Nesbitt also noted that Millon Air had given the Leon Plaintiffs the same
promises given to the Cedeno Plaintiffs. She therefore dismissed the case, although
she did not explicitly make Millon Air's concessions a condition of her dismissal
order, as she had done in Cedeno.
The Leon Plaintiffs subsequently moved for a new trial, alleging newly
discovered evidence that Millon Air had denied liability in one of the Ecuadorian
actions, in violation of their Cedeno promise to contest only damages. The District
Court rejected this motion, on the ground that the Ecuadorian action where Millon Air
was contesting liability did not involve a Cedeno plaintiff.
B. The Cedeno Decision
In dismissing the pending case, Judge Nesbitt relied primarily on the reasons
she had given for dismissing the Cedeno case. In Cedeno, Judge Nesbitt required
Millon Air to show that there was an adequate alternative forum, that the balance of
“private interests” and “public interests” weighed in favor of dismissing the litigation
to the alternative forum (with the public interests coming into play only where the
private interests were at or near “equipoise”), and that there would be no
inconvenience or prejudice to plaintiff in filing in the foreign forum. See Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 266-69 (1981); Gulf Oil Corp. v. Gilbert, 330
6 U.S. 501, 507-09 (1947).
Judge Nesbitt found that Millon Air had made each of the required showings.
First, she found that the Ecuadorian courts were an adequate alternative forum. She
acknowledged that there had been a strike by judges and that some judges had been
removed from the Supreme Court, but concluded, based on Millon Air affidavits, that
the strike was over and that the “instability has been resolved and the Ecuadorian legal
system is again functioning normally.” Cedeno Op. at 4 (unreported). The fact that
punitive damages would be unavailable in Ecuador was of no moment because the
“potential for a smaller damage award is not a basis for the denial” of a forum non
conveniens motion; the remedy provided by the Ecuadorian courts would not be “‘so
clearly inadequate or unsatisfactory that it is no remedy at all.’” Id. at 6 (quoting
Piper, 454 U.S. at 254).
Second, Judge Nesbitt weighed private interests, i.e., location of proof,
availability of compulsory process, and other practical problems. Judge Nesbitt found
that the private interests weighed in favor of dismissing the case, primarily because
the witnesses as to damages (the only issue in the case, since Millon Air conceded
liability) were located in Ecuador, beyond the reach of the District Court’s compulsory
process, and “presumably” most of them spoke only Spanish. Judge Nesbitt conceded
that a plaintiff’s choice of forum was accorded deference, particularly where the
7 forum was the defendant’s home forum. However, Judge Nesbitt noted that foreign
plaintiffs litigating in the United States were entitled to “‘less deference’” in their
forum choice. Id. at 9 (quoting Piper, 454 U.S. at 256). “Accordingly, the Plaintiffs’
choice of forum in this case does not deserve any deference other than considering it
in the context of the overall convenience of the parties and in that light, Ecuador is
still the most convenient forum for the parties to try this case.” Id.
Next, the District Court considered the public interests, i.e., “administrative
difficulties stemming from court congestion, the interest in having local controversies
decided in their home forum and the interest in having laws determined by their home
tribunal.” Id. at 9-10. Judge Nesbitt indicated that her inquiry here was academic,
since she believed that public interests come into play only when the private interests
are at or near equipoise, interests she had already found strongly favored dismissing.
Nevertheless, the District Court noted that the public interest factors also favored
dismissing. Judge Nesbitt said she was “cognizant of the backlog in Ecuador’s court
system” but noted that the damages issue was “very simple,” and that the Cedeno
claims could be consolidated in Ecuador with the Broward cases. Id. at 10. The Court
also noted that Ecuador had an interest in trying cases that bore on Ecuador’s air
traffic control system, and that Ecuador would be better able to cope with Spanish-
speaking witnesses. Id. at 10-11.
8 Finally, the Court noted that it would be possible to reinstate the case in
Ecuador, since all defendants had agreed to jurisdiction and service of process. The
Court did not in this opinion discuss Law No. 55, since it had not at that time been
enacted.
Discussion
A court of appeals reviews a dismissal based on forum non conveniens for
abuse of discretion, according the District Court “‘substantial deference.’” Republic
of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 951 (11th Cir. 1997)
(quoting Piper, 454 U.S. at 257). Factual determinations are reviewed for clear error.
Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1196 (11th Cir. 1983).
Except in one particular, we agree with the District Court’s summary of the law
of forum non conveniens. The moving party must demonstrate that (1) an adequate
alternative forum is available, (2) the public and private factors weigh in favor of
dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without
undue inconvenience or prejudice. See Republic of Panama, 119 F.3d at 951; C.A. La
Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). As described
more fully below, balancing private interests requires determining the convenience of
the parties, affording domestic plaintiffs “a strong presumption” that their forum
choice is sufficiently convenient, id. (internal quotation marks omitted), and a weaker
9 presumption applying in cases brought by foreign plaintiffs, Piper, 454 U.S. at 256.
However, in stating that the balance of public interests was superfluous because such
factors enter the equation only when the private interest factors are at or near
“equipoise,” Cedeno op. at 3, see also C.A. La Seguridad, 707 F.2d at 1307, Judge
Nesbitt somewhat overstated the matter. As a leading commentator has noted, even
though the private factors are “generally considered more important” than the public
factors, the better rule is to consider both factors in all cases, 17 Moore’s Federal
Practice § 111.74[3][b] at 111-221 (3d ed. 2000), and this has been our approach in
recent cases, Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283-84 (11th Cir.
2001).
In challenging the District Court's application of these criteria, the Appellants
dispute (a) the adequacy of the Ecuadorian forum and (b) the District Court’s
balancing of the private interests.
A. Availability and Adequacy of the Ecuadorian Forum
A defendant has the burden of persuasion as to all elements of a forum non
conviens motion, including the burden of demonstrating that an adequate alternative
forum is available. Republic of Panama, 119 F.3d at 951. Availability and adequacy
warrant separate consideration. See Satz, 244 F.3d at 1283-84. An alternative forum
is “available” to the plaintiff when the foreign court can assert jurisdiction over the
10 litigation sought to be transferred. See Piper, 454 U.S. at 254 n.22 (citation omitted)
(“Ordinarily, [the requirement of an alternative forum] will be satisfied when the
defendant is ‘amenable to process’ in the other jurisdiction.”). In the pending case,
the dispute about whether Law No. 55 precludes Ecuadorian courts from asserting
jurisdiction over Plaintiffs’ claims is a dispute about availability.
A defendant also bears the burden of proving the “adequacy” of the alternative
forum. See Satz, 244 F.3d at 1282 (defendant carried burden of proving Argentina
was an adequate forum). In Piper, the Supreme Court has noted that dismissal may
be improper where “the remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory that it is no remedy at all.” 454 U.S. at 254. Courts have
been strict about requiring that defendants demonstrate that the alternative forum
offers at least some relief. See, e.g., Mercier v. Sheraton International, Inc., 935 F.2d
419, 425 (1st Cir. 1991) (reversing forum non conveniens dismissal required where
defendant failed to prove “expressly that Turkish law recognizes claims for breach of
contract and tortious interference with contract”).
However, “[a]n adequate forum need not be a perfect forum,” Satz, 244 F.3d
at 1283, and courts have not always required that defendants do much to refute
allegations of partiality and inefficiency in the alternative forum. As Judge Ryskamp
has noted, the argument that the alternative forum is too corrupt to be adequate “does
11 not enjoy a particularly impressive track record.” Eastman Kodak Co. v. Kavlin, 978
F. Supp. 1078, 1084 (S.D. Fla. 1997). However, while “[s]ome inconvenience” to
litigants does not indicate that a forum is inadequate, Satz, 244 F.3d at 1283 (internal
quotation marks omitted), courts have said that extreme amounts of partiality or
inefficiency may render the alternative forum inadequate. See, e.g., Bhatnagar v.
Surrendra Overseas Ltd., 52 F.3d 1220, 1227-31 (3d Cir. 1995) (Indian forum was
inadequate where delays of up to 25 years were possible).
The reluctance to hold an alternative forum inadequate on these grounds has
manifested itself not only in the degree of corruption or inefficiency that must be
shown, but also in the allocation of the burdens of proof. Some courts have said that
an alternative forum is presumptively impartial and efficient, and have put at least the
burden of production on the plaintiff to show that this is not so. See, e.g., Vaz
Borralho v. Keydril Co., 696 F.2d 379, 393-94 (5th Cir. 1983) (“the district court may
presume that the foreign law is adequate, unless the plaintiff makes some showing to
the contrary, or unless conditions in the foreign forum otherwise made known to the
court, plainly demonstrate that the plaintiffs are highly unlikely to obtain basic justice
therein”), overruled on other grounds, In re Air Crash Disaster Near New Orleans,
Louisiana on July 9, 1982, 821 F.2d 1147, 1163 n.25 (5th Cir. 1987); cf. El-Fadl v.
Central Bank of Jordan, 75 F.3d 668, 678 (D.C. Cir. 1996) (plaintiff’s general
12 allegations of lack of impartiality insufficient to make forum inadequate); Mercier v.
Sheraton International, Inc., 981 F.2d 1345, 1351 (1st Cir. 1992) (“Mercier II”)
(rejecting plaintiffs’ attack on Turkish courts’ ability to treat women fairly, as not
substantiated by any evidence). Going further, the Second Circuit has said that
“[c]onsiderations of comity preclude a court from adversely judging the quality of a
foreign justice system absent a showing of inadequate procedural safeguards,” PT
United Can Co. v. Crown, Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998), though
more recently that court has indicated a willingness to reject judgments of
dysfunctional foreign legal systems, Bridgeway Corp. v. Citibank, 201 F.3d 134, 141-
42 (2d Cir. 2000) (declining to enforce judgment by Liberian court).
In Eastman Kodak, the District Court for the Southern District of Florida
determined that, where the plaintiff had produced evidence of serious partiality in
Bolivia, the defendants had failed to meet their burden of persuading the Court that
this evidence was incorrect, and that the forum was in fact adequate. 978 F. Supp. at
1087.1 We think this was the correct approach: defendants have the ultimate burden
of persuasion, but only where the plaintiff has substantiated his allegations of serious
1 In other cases where the alternative forum has been found to be potentially inadequate because of a dysfunctional legal system, the burden of persuasion has not been clearly identified; in practice the plaintiffs have usually come forward with some evidence. See, e.g., Bhatnagar, 52 F.3d at 1228.
13 corruption or delay. Thus, where the allegations are insubstantially supported, as in
Mercier II and El-Fadl, a District Court may reject them without considering any
evidence from the defendant. But where the plaintiff produces significant evidence
documenting the partiality or delay (in years) typically associated with the
adjudication of similar claims, and these conditions are so severe as to call the
adequacy of the forum into doubt, then the defendant has the burden to persuade the
District Court that the facts are otherwise. See Eastman Kodak, 978 F. Supp. at 1087;
cf. Satz, 244 F.3d at 1283 (defendant’s evidence was sufficient to sustain burden of
demonstrating adequacy of Argentine forum). This approach forbids dismissal to
alternative forums that realistically are not capable of producing a remedy for the
plaintiff’s injuries,2 without crediting cursory attacks on legal systems simply because
they are somewhat slower or less elaborate than ours.
Applying the foregoing approach to the pending case, we first consider whether
the Ecuadorian courts are available notwithstanding Law No. 55. In her opinion in the
pending case, Judge Nesbitt explicitly considered the one factor distinguishing the
2 A survey conducted by Prof. Robertson found that few dismissed cases are actually litigated to a judgment in the alternative forum. David R. Robertson, Forum Non Conveniens in America and England: "A Rather Fantastic Fiction”,103 L.Q. Rev. 398, 419 (1987). Robertson reported that of the eighty-five dismissals in his study, only three actually resulted in a judgment by a foreign court. See also Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 683 (Tex. 1990) (Doggett, J., concurring) ("A forum non conveniens dismissal is often, in reality, a complete victory for the defendant.").
14 forum non conveniens claim in Leon from the prior claim in Cedeno--the significance
of Law No. 55. Law No. 55 provides that once a lawsuit is filed outside Ecuador, “the
national competence and the jurisdiction of the Ecuadorian Judges on the case will be
terminated forever.” Judge Nesbitt determined that the Plaintiffs’ Law No. 55 claim
was defeated by the Portoviejo appellate court’s ruling that Law No. 55 did not apply
to litigation dismissed from a foreign court on the ground of forum non conveniens.
While the Plaintiffs contend that there remains controversy in Ecuador concerning
Law No. 55, we cannot say that Judge Nesbitt’s determination as to the current
interpretation of Law No. 55 in Ecuador was clearly erroneous. Nor is the alleged
uncertainty over Law No. 55 an obstacle to dismissal; the District Court would
presumably reassert jurisdiction over the case in the event that jurisdiction in the
Ecuadorian courts is declined. See Gschwind v. Cessna Aircraft Co., 161 F.3d 602,
607 (10th Cir. 1998) (conditions of dismissal included consent to reinstatement if
jurisdiction in France was declined).
The next issue concerns the Plaintiffs’ attack on the efficiency and impartiality
of the Ecuadorian courts. To meet their burden of production on this issue, the
Plaintiffs rely entirely on the arguments and affidavits submitted in the Cedeno action.
The Plaintiffs’ major allegation in Cedeno was that the judges of Ecuador were out on
strike and the 31 justices of the Supreme Court had been removed by the Congress.
15 However, Judge Nesbitt noted that as of the time of her ruling in Cedeno, “[t]he
judges have returned to work,” “the instability has been resolved[,]” and “the
Ecuadorian legal system is again functioning normally.” Cedeno op. at 4. The
Plaintiffs do not contend on this appeal that these findings were clearly erroneous.3
The Plaintiffs’ other challenge in the Cedeno litigation to the adequacy of the
Ecuadorian forum was a claim of specific, chronic shortcomings with the Ecuadorian
legal system. In the Cedeno record, affidavits from observers of Ecuadorian courts
identified these deficiencies: a lack of financial resources, illustrated by the allocation
to the courts of less than two percent of the national budget, the use of manual
typewriters in 90 percent of the courts, and the absence of computers in the trial
courts; congestion and delays, illustrated by case filings of one thousand lawsuits per
judge, with disposition of 200-300 cases per judge; and backlogs, illustrated by one
3 We note that since Judge Nesbitt’s dismissal of Cedeno and the pending case, a district court in the Southern District of New York sua sponte has raised the issue of the adequacy of Ecuador’s legal system, in considering whether to dismiss a case involving alleged complicity by the Ecuadorian government in massive environmental torts. See Aguinda v. Texaco, Inc., No. 93 Civ. 7527 (TSR) (S.D.N.Y. Jan. 31, 2000). The Court was concerned about a military coup that, eleven days prior to the writing of the opinion, had overthrown the democratically elected president; the Court re-opened the record for submissions on the adequacy of the Ecuadorian courts in the confused aftermath of the coup, but has so far not issued a final ruling on the forum non conveniens motion. However, the Ecuadorian political situation was much more relevant in that suit than in this case, which implicates no sovereign interests and involves private parties only. Additionally, there is some reason to believe that the Ecuadorian government has stabilized in the past year. See Pilar Valero, Ecuadorian Chief Faces Protests Like Those That Sparked Coup, EFE News Service, Jan. 22, 2001 (describing peaceful protests on anniversary of coup, without backing from the armed forces).
16 commercial case that has been pending for 12 years.
We do not believe this evidence is sufficient to satisfy the Plaintiffs’ burden of
production. While the logistical and financial problems facing the Ecuadorian courts
are undoubtedly substantial, the Plaintiffs have not made a sufficient showing that
such problems would preclude the fair and reasonably expeditious adjudication of the
simple damages issues presented by the pending case.4 Significantly, the Ecuadorian
courts handling claims by other Manta air crash victims have issued their
jurisdictional rulings in short order, and they appear to be taking submissions on the
merits in at least one case (that of Ms. Roca, discussed below) where Millon Air is
disputing liability. On this record, the District Court did not exceed its discretion in
finding Ecuador to be an adequate forum.
B. Balancing the Private and Public Interests
4 The two percent allocation of the Ecuadorian national budget to the judiciary is insufficiently probative of an inadequate forum when one considers that in the United States the federal judiciary's budget is only two-tenths of one percent of the national budget. See Judith Resnik, Trial As Error, Jurisdiction As Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 954 (2000). Although there are few computers or electric typewriters in Ecuadorian courts, our courts dispensed justice for nearly two centuries before the advent of electric typewriters and computers. The identification of one long-delayed commercial case is not a persuasive basis to gauge the adequacy of entire court system. Cf. United States v. Secretary of Housing and Urban Development, 239 F.3d 211 (2d Cir. 2001) (original complaint filed in 1980). The large number of filings is not remarkable either, as some federal judges endure staggering numbers of annual filings, see Administrative Office of the United States Courts, Judicial Business of the United States Courts, Table X-1A, at 388 (1999) (1,029 weighted filings per judgeship in Southern District of California); id. at 387 (900 weighted filings per judgeship in Western District of Texas).
17 “Private interests” include, in Justice Jackson’s phrasing, “ease of access to
sources of proof; availability of compulsory process for attendance of unwilling, and
the cost of obtaining attendance of willing, witnesses . . . and all other practical
problems that make trial of a case easy, expeditious and inexpensive.” Gilbert, 330
U.S. at 508. As already noted, there is normally a strong presumption that the plaintiff
has chosen a sufficiently convenient forum, and defendants in such cases are required
to prove “vexation” and “oppressiveness” that are “out of all proportion” to the
plaintiff’s convenience. Piper, 454 U.S. at 241 (internal quotation marks omitted).
However, the presumption that a plaintiff has chosen a sufficiently convenient forum
“weakens” when the plaintiff is a foreigner litigating far from home, C.A. La
Seguridad, 707 F.2d at 1308 n.7, and in such cases plaintiff’s forum choice is
accorded “less deference,” Piper, 454 U.S. at 256.
Yet even according Plaintiffs’ forum choice at least the diminished presumption
of convenience to which it is entitled, the District Judge did not exceed her discretion
in finding the private factors to weigh in favor of dismissal. Judge Nesbitt’s finding
was premised on the Defendants’ having conceded liability for the crash in the Cedeno
action, which meant that the only triable dispute was whether the deaths or injuries of
18 the Plaintiffs were caused by the crashing airplane or the impact of debris from it,5 and
the extent of damages.6 As Judge Nesbitt noted, the evidence necessary to litigate
these matters was located in Ecuador and was in the Spanish language. While the
Plaintiffs have agreed to appear in the District Courts and to assume the cost of
deposing witnesses in Ecuador, cf. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46
(2d Cir. 1996) (offer to transport witnesses offset inconvenience of witnesses’ foreign
location), the Plaintiffs’ offer did not extend to guaranteeing the presence in the
United States of non-plaintiffs who could verify whether in fact a plaintiff had been
injured by the crash, and to the degree alleged. These persons will presumably be
among the key defense witnesses.
We also note that the Plaintiffs have not challenged Judge Nesbitt’s finding that
the public interests strongly favored dismissal. As she observed, the Ecuadorian
courts are already hearing Manta crash cases, and Ecuador has an interest in
determining the extent of damages payable when planes crash in Ecuador on
5 The damages determination will necessarily involve an issue of causation, not in the sense of whether negligence caused the crash, but only in the sense of whether the crash caused the Plaintiff's injuries. 6 The Plaintiffs contend that, despite the Defendants' admission of liability, evidence in Miami will be relevant to the issue of comparative fault. However, the Defendants have made it clear that their admission of liability is absolute, and are not claiming an apportionment for comparative fault. They also point out that comparative fault is not recognized in Ecuador, and, in any event, would be an unlikely defense to claims of people injured on the ground by a crashing airplane.
19 Ecuadorian citizens. See Cedeno op. at 9. Since the Plaintiffs have not met their
burden of producing sufficient evidence that Ecuador is an inadequate forum, and
since the Defendants have shown that Ecuador is an available forum and that the
public and private factors both weigh in favor of dismissal, Judge Nesbitt’s decision
to dismiss was within her discretion (subject to the modification described below).
20 C. Denial of a New Trial
The Plaintiffs unsuccessfully sought to challenge the dismissal order by motion
for a new trial under Fed. R. Civ. P. 59 and 60(b), on the ground that Millon Air,
despite its concession as to liability in Cedeno, had disputed its liability to Rosa Amira
Delgado Roca in an Ecuador court. The District Court properly denied relief, noting
that the concession as to liability applied only to plaintiffs in the Cedeno (and Leon)
litigation, and that Roca was not among those plaintiffs.
D. Conditions of the Dismissal
Unlike the dismissal order in Cedeno, the dismissal order in the pending case
(perhaps inadvertently) did not recite the conditions to which the Defendants had
agreed. We therefore modify the dismissal order in this case, see 28 U.S.C. § 2106
(authority of appellate court to modify), to include the four conditions recited in the
Cedeno order. See Cedeno Order of January 12, 1998, at 12 (Concessions A-D). In
addition, because of the arguable uncertainty concerning the future interpretation of
Law No. 55 in Ecuador, we further modify the dismissal order in this case to provide
that any case dismissed pursuant to the District Court's order may be reinstated in the
event that jurisdiction to entertain such a case is rejected by a final decision of a court
in Ecuador. See Gschwind, 161 F.3d at 607. We note that conditioning the dismissal
does not destroy finality, nor leave the case pending in the District Court. See Sigalas
21 v. Lido Maritime, Inc., 776 F.2d 1512, 1515-16 (11th Cir. 1985).
Conclusion
The Order of the District Court dismissing on the ground of forum non
conveniens is modified as provided in this opinion, and, as modified, is affirmed. The
Order denying a new trial is AFFIRMED.7
7 We also deny the Appellees' motion for counsel fees, which alleged that the Leon Plaintiffs have failed to cite any part of the record in their appellate brief. That motion was referred to this panel. The Plaintiffs have adequately indicated their reliance on the record in the Cedeno litigation, on which Judge Nesbitt explicitly relied, and, especially since counsel for both sides were the same in both cases, the Appellees have suffered no prejudice or added expense simply because the Cedeno affidavits were not formally made part of the record in the Leon litigation.