Zhou v. Boeing Company

• Court: District Court, District of Columbia
• Decided: November 21, 2018
• Docket: Civil Action No. 2016-1138
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN, ON MARCH 8, 2014 ___________________________________ MDL Docket No. 2712 This Document Relates To: Misc. No. 16-1184 (KBJ)

ALL CASES

MEMORANDUM OPINION

The legal claims in this multi-district litigation (“MDL”) arise from one of the

greatest aviation mysteries of modern times: the disappearance of Malaysia Airlines

Flight MH370 somewhere in the southern Indian Ocean in the early morning hours of

March 4, 2014. Flight MH370 took off from Kuala Lumpur International Airport in

Malaysia at 12:42 AM that morning, en route to Beijing, China, with 227 passengers

and 12 crew members aboard the plane. Thirty-nine minutes after takeoff, while the

Boeing 777 aircraft was flying over the South China Sea and transitioning from

Malaysian to Vietnamese airspace, Malaysian air traffic controllers lost radar contact

with the aircraft. At Malaysia’s behest, a massive international search and rescue effort

ensued, but neither the plane nor any wreckage was recovered, and on January 28, 2015,

the Malaysian Department of Civil Aviation (“MDCA”) announced that all aboard

Flight MH370 were presumed deceased. Some pieces of wreckage have since washed

ashore on islands in the Indian Ocean and on the eastern coast of Africa, but, to date, most of the plane remains unaccounted for, including the cockpit voice recorder and the

flight data recorder.

Following the disappearance of Flight MH370, litigation commenced in both

Malaysia and in the United States; many plaintiffs have filed suit in both jurisdictions.

In the United States, complaints were filed in California, the District of Columbia,

Illinois, New York, South Carolina, and Washington state, and the Judicial Panel on

Multidistrict Litigation subsequently centralized the pretrial proceedings with respect to

all of these cases in this District. (See Transfer Order, ECF No. 1.) The complaints in

these matters can generally be grouped into two categories. First, there are cases that

assert claims under the Montreal Convention against the defendant airlines—Malaysia

Airlines System Berhad (Administrator Appointed) (“MAS”) and Malaysia Airlines

Berhad (“MAB”)—and/or their insurers, Allianz Global Corporate & Specialty SE

(“AGCS SE”), and Henning Haagen, an officer at AGCS SE. Second, there are cases

that assert common law wrongful death and products liability claims against airplane

manufacturer Boeing, including claims based on a res ipsa loquitor tort theory. There

is also a single complaint that resides in the overlap between these two groups—it

asserts Montreal Convention, wrongful death, and personal injury claims, and names

MAS, MAB, AGCS SE, Haagen, and Boeing as defendants. All told, 40 complaints are

currently pending in this MDL.

Before this Court at present are five ripe motions pertaining to particular

threshold issues that various defendants have raised: (1) a joint motion seeking

dismissal of all pending cases based on the doctrine of forum non conveniens, in which

Defendants argue that it would be more convenient to ligate these matters in Malaysia,

2 as opposed to the United States (see Joint Mem. in Supp. of Mot. to Dismiss on the

Ground of Forum Non Conveniens (“FNC Mem.”), ECF No. 37-1); (2) a motion by

MAS and MAB seeking dismissal of the claims against them on the grounds that they

are agencies of the Malaysian government and immune from suit in United States courts

pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 (see Defs.’

MAS and MAB’s Mem. in Supp. of Their Rule 12(b)(1) Mot. to Dismiss on the Ground

of Immunity Pursuant to the Foreign Sovereign Immunities Act (“FSIA Mem.”), ECF

No. 39-1) 1; (3) a motion by MAS seeking dismissal of the Montreal Convention claims

against it on the grounds that no provision of the Convention provides a court in the

United States with jurisdiction over these claims (see Def. MAS’s Mem. in Supp. of Its

Rule 12(b)(1) Mot. to Dismiss on the Ground of Lack of Subject Matter Juris. Pursuant

to the Montreal Convention (“Montreal Convention Mem.”), ECF No. 38-1) 2; (4) a

motion by AGCS SE seeking dismissal of the claims against it for lack of personal

jurisdiction, because it is a foreign company that did not engage in any conduct

connected to the loss of Flight MH370 in any of the jurisdictions in which it has been

sued (see Def. AGCS SE’s Rule 12(b)(2) Mot. to Dismiss for Lack of Personal Juris.

(“AGCS SE Pers. Juris. Mot.”), ECF No. 35-1); and (5) a motion by AGCS SE and

Haagen seeking dismissal for failure to state a claim upon which relief can be granted,

in which they argue that Plaintiffs’ attempt to make them representatives of MAS and

MAB, based solely on their status as alleged insurers of MAS, has no legal foundation

(see Defs. AGCS SE and Henning Haagen’s Mem. in Supp. of Their Rule 12(b)(6) Mot.

1 MAB and AGCS SE have moved to join this motion. (See Motion for Joinder, ECF No. 41.) 2 MAB and AGCS SE have moved to join this motion. (See Motion for Joinder, ECF No. 40.)

3 to Dismiss for Failure to State a Claim (“Reinsurer Rule 12(b)(6) Mem.”), ECF No. 36-

1).

This Court has carefully parsed the myriad dismissal arguments Defendants have

presented, and as fully explained below, it has determined that, on balance, the claims

asserted in the consolidated complaints have a substantial and overriding nexus to

Malaysia that outweighs the less substantial connection to the United States. As such,

litigation of these claims in the United States is comparatively inconvenient, and

Defendants’ joint motion for dismissal based on forum non conveniens will be

GRANTED, and Plaintiffs’ cases will be DISMISSED without prejudice. The

remaining threshold motions will be DENIED as moot. A separate Order consistent

with this Memorandum Opinion will follow.

I. FACTUAL BACKGROUND 3

A. The Incident And Its Aftermath

1. Flight MH370’s Disappearance

At 12:42 AM on the morning of March 8, 2014, Flight MH370 took off from

Kuala Lumpur International Airport in Malaysia, en route to Beijing, China. (See

Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Factual Information

Safety Investigation For MH370 (March 8, 2015, updated on April 15, 2015) (“Factual

Investigation Rpt.”), ECF No. 37-4, at 21; Malaysian Department of Civil Aviation

3 The facts contained within this section are derived from the complaints filed in the various underlying actions, as well as the exhibits that the parties have attached to their various filings in this matter. See Johnson v. PPI Tech. Servs., L.P., No. 11cv2773, 2012 WL 1865713, at *2 (E.D. La. May 22, 2012) (explaining that a court adjudicating a forum non conveniens motion “is not limited to the allegations in the complaint, but may consider all of the evidence before it”); see also Goldberg v. UBS AG, 660 F. Supp. 2d 410, 419 (E.D.N.Y. 2009) (relying on the complaint and materials that the parties had submitted when ruling on a motion seeking dismissal based on forum non conveniens).

4 Press Release (“MDCA Press Release”), ECF No. 37-3, ¶ 3.) 4 MAS was the national

airline of Malaysia at that time (see Decl. of Rizani Bin Hassan, Ex. 2 to FISA Mem.,

ECF No. 39-3, ¶¶ 5, 8, 20–21), and 12 Malaysian citizens staffed Flight MH370—a

pilot, a first officer, and 10 cabin crew (see MDCA Press Release ¶ 4; Decl. of Mohd

Fuad Bin Mohd Sharuji, Ex. 3 to FNC Mem., ECF No. 37-5, at ¶ 15). Also on board

were 227 passengers of 14 nationalities, including 152 Chinese citizens, 38 Malaysian

citizens, and three United States citizens. (See Decl. of Tan Sri Dato Seri Adbull

Hamid Embong, Ex. 10 to FNC Mem., ECF No. 37-12, ¶ 13). 5

At 1:19 AM, while the aircraft was over the South China Sea and transitioning

from Malaysian airspace to Vietnamese airspace, Malaysian air traffic controllers

instructed Flight MH370 to contact Vietnamese air traffic controllers on a specific radio

frequency, a request that the pilot in charge acknowledged with, “Good night Malaysian

Three Seven Zero.” (Malaysian ICAO Annex 13 Safety Investigation Team for MH370,

Safety Investigation Report (July 2, 2018) (“Safety Investigation Rpt.”), ECF No. 102-

1, at 48, 477.) The pilot “did not read back the assigned frequency, which was

inconsistent with radio-telephony procedures.” (Id. at 477.) This was the last recorded

radio transmission that the pilots of Flight MH370 sent, and two minutes later, at 1:21

4 Page numbers cited herein refer to those that Court’s electronic case filing system automatically assigns. 5 The U.S. citizens were Philip Wood, Leo Meng, and Nicole Meng. (See No. 1:16cv01063, Huang First Am. Compl. ECF No. 9, at ¶ 8; No. 1:16cv01048, Zhang 2d Am. Compl., ECF No. 7, ¶ 10; No. 1:16cv00439, Smith Compl., ECF No. 1, at ¶ 8; and 1:16cv00053, Wood Compl., ECF No. 1, at ¶ 23.) All three were living overseas at the time of the incident.

5 AM, Malaysian air traffic controllers lost radar contact with the aircraft. (Id. at 48–

49.) 6

“The Malaysian military radar and radar sources from two other countries,

namely Vietnam and Thailand, also captured the disappearance of the radar position

symbol of MH370” in this same timeframe. (Id. at 49.) Once Malaysian air traffic

controllers lost sight of Flight MH370 on their radar, Malaysian military radar showed a

“blip” that appeared to be the plane. However, this “blip” appeared to be diverting

from Flight MH370’s northerly flight plan; it briefly veered to the right, and then turned

left dramatically, flying west-southwest across Malaysia, at variable altitudes and

speeds, before turning right when the plane was south of Penang Island, off of the

western coast of Malaysia. (See id. at 50, 55.) The “blip” indicated that the plane was

flying in a west-northwest direction, and it disappeared from the military radar entirely

at 2:22 AM, 10 nautical miles north of a flight navigation waypoint known as MEKAR.

(See id. at 52, 55.)

The Boeing 777 the Malaysia Airlines used as equipment for Flight MH370 was

equipped with a satellite communications system, and except for two brief periods, “the

aircraft [itself] communicated through the Inmarsat Indian Ocean Region . . . I-3

Satellite and the [Ground Earth Station] in Perth, Australia.” (See id. at 165.) 7 The

satellite connections were briefly lost sometime between 1:07 AM and 2:03 AM,

6 Thirty minutes later, at 1:52 AM, a mobile phone tower at Bandar Baru Farlim Penanang recorded a signal “hit” from the First Officer’s mobile telephone, but no actual call took place. (See Safety Investigation Rpt. at 66.) 7 Plaintiffs represent that Inmarasat is located in the United Kingdom. (See Pls.’ Resp. to the Defs.’ Mot. to Dismiss Under the Doctrine of Forum Non Conveniens, (“Podhurst FNC Opp’n’), ECF No. 68, at 13 n.4.)

6 presumably as the result of equipment failing or being powered down, but Flight

MH370’s satellite data unit logged back onto the system and sent a “handshake” at 2:25

AM. (See id. at 171.) The aircraft then initiated five additional “handshakes” before

the satellite communications system again briefly lost power, likely as a result of fuel

running low and engines losing power, but then logged back on. (See id. at 171–175;

480.) The system initiated a seventh and final “handshake” at 6:19 AM, but when the

Perth ground station attempted to contact the plane again at 7:15 AM, it did not receive

any response. (See id. at 175–76.)

2. Search Efforts And Subsequent Investigations

Malaysia’s Minister of Transport authorized a team of officials—known as the

Malaysian ICAO Annex 13 Safety Investigation Team for MH370 (hereinafter referred

to as the “Malaysian MH370 Investigation Team”)—to coordinate the initial search and

rescue efforts, and also to investigate the cause of Flight MH370’s disappearance.

(MDCA Press Release ¶ 28.) 8 On March 17, 2014, at Malaysia’s request, the Australian

Transportation Safety Board (“ATSB”) “took charge of the coordination of the search

and rescue operation[, and o]ver the next 6 weeks from 18 March, an intensive aerial

and surface search was conducted by assets from Australia, Malaysia, China, Japan,

Korea, UK and the USA.” (ATSB, MH370—Definition of Underwater Search Areas

8 The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization (“ICAO”), a specialized agency of the United Nations that works with the Convention’s 192 Member States (including the United States and Malaysia) to establish standards for regulating international civil aviation. See About ICAO, available at https://www.icao.int/about-icao/Pages/default.aspx; see also Convention on Int’l Aviation, opened for signature Dec. 7, 1944, 61 Stat. 1180. Annex 13 to the Chicago Convention, which adopts procedures for aircraft accident and incident investigation, requires a member state to investigate both incidents that take place inside its territory and also accidents involving aircraft registered in the member state in circumstances where the location of the incident cannot be determined to be in any particular state. See Sections 5.1, 5.3 of Annex 13 to Convention on Int’l Aviation (available at https://www.emsa.europa.eu/retro/Docs/marine_casualties/annex_13.pdf).

7 (updated Aug. 18, 2014) (“ATSB June 2014 Rpt.”), Ex. E to Pls.’ Resp. in Opp’n to

Defs.’ Mot. to Dismiss on the Ground of Forum Non Conveniens (“Motley Rice FNC

Opp’n”), ECF No. 67-6, at 7.)

ATSB’s initial search for Flight MH370 was focused on the South China Sea,

which was the flight’s last known location as detected by air traffic control. “The

search area was later extended to the Straits of Malacca, to the west of Malaysia, based

on military radar showing that an aircraft like Flight MH370 had made an air turn back

from the South China Sea and headed west back across the Malaysian Peninsula.”

(Decl. of Hillary Barr (“Barr Decl.”), Ex. 5 to FNC Mem., ECF No. 37-7, ¶ 4.) Using

the satellite data “handshakes,” investigators plotted the plane’s likely course, which

included making a southern turn shortly after passing the northern tip of Sumatra, after

the plane had disappeared from military radar. (See Safety Investigation Rpt. at 184.)

“The 52 days of the surface search involving aircraft and surface vessels covered an

area of several million square kilometres[,]” and an extensive “sub surface search for

the aircraft’s underwater locator beacons was also conducted[.]” (Id. at 67.) 9

Ultimately, the search team concluded that Flight MH370 likely crashed in the

Southern Indian Ocean after running out of fuel. (See id.) “[T]he search and rescue

phase transitioned to a search and recovery phase” on April 28, 2014 (MDCA Press

Release ¶ 9), and on January 28, 2015, having not located the plane or any wreckage,

the MDCA announced that the “data supports the conclusion that MH370 ended its

9 The subsurface search was massive in both scope and scale: “[t]he underwater search started with a bathymetry survey which mapped a total of 710,000 square kilometres of Indian Ocean seafloor and continued with a high-resolution sonar search which covered an area in excess of 120,000 square kilometres.” (Safety Investigation Report at 67.)

8 flight in the southern Indian Ocean[,]” away from any possible landing site. (Id. ¶ 20.)

Accordingly, the MDCA presumed that all passengers and crew had perished. (Id.

¶ 23.)

Three pieces of confirmed wreckage and more than 20 pieces of likely wreckage

have since washed ashore on islands in the Indian Ocean and on the eastern coast of

Africa, but most of the plane remains unaccounted for, including the cockpit voice

recorder and the flight data recorder. (See id. at 185–99.) 10 In January of 2017, the

governments of Malaysia, Australia, and China officially suspended the underwater

search for Flight MH370. (See id. at 67.) Thereafter, in January of 2018, a private

company, Ocean Infinity, entered into a contract with the Malaysian government to

conduct an additional underwater search for wreckage, centered on an area that it

believed was most likely to contain wreckage from the aircraft. (See id. at 67, 184.)

Over a period of 90 days, Ocean Infinity searched an additional 112,000 square

kilometers north of this initial search area, also to no avail. (See id.)

3. The Annex 13 Report And Criminal Investigation

With Australia taking the lead on locating the physical remains of Flight MH370,

the Malaysian MH370 Investigation Team—consisting of an Investigator in Charge and

18 additional subordinates—worked with representatives from seven countries to

determine why Flight MH370 had disappeared; this investigation is known as “the

Annex 13 Safety Investigation[.]” (See Safety Investigation Rpt. at 15, 443.) The

United States participated in the Annex 13 Safety Investigation through the National

10 The various pieces of debris have been taken to different locations for analysis, including France, Australia, and Malaysia. (See Barr Decl. ¶ 13.)

9 Transportation Safety Board (“NTSB”), because the United States is the county of

manufacture and design of the aircraft, and in this regard, Boeing—which designed and

manufactured the aircraft at issue (see infra Part I.B)—served as a technical adviser to

the NTSB. (Barr Decl. ¶ 9.)

Australia, the United Kingdom, Singapore, France, China, and Indonesia also

participated in the Annex 13 Safety Investigation. (See Safety Investigation Rpt. at 15.)

The collective investigative effort involved interviewing more than 120 people,

including MAS employees, crew member relatives, Malaysia aviation officials, and

representatives of companies that were shipping cargo on Flight MH370. (See

Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Interim Stmt., Safety

Investigation for MH370 (9M-MRO) (Mar. 8, 2015) (“Safety Investigation Interim

Stmt.”), Ex. 6 to FNC Mem., ECF No. 37-8, at 3.) The team also reviewed airline-

maintenance records, as well as Boeing’s records, air traffic control records and

recordings, closed-circuit footage of the crew, bank records, and statements from

friends, relatives, co-workers, and medical providers of the crew members. (See id.;

Safety Investigation Rpt. at 71, 82.) Annex 13 investigators thoroughly researched the

pilots and the crew members, and even analyzed the voices on the flight’s radio

transmissions to detect signs of stress. (See Safety Investigation Rpt. at 71–84.)

On July 2, 2018, the Malaysian MH370 Investigation Team issued a 449-page

report, which was the culmination of the years-long Annex 13 Safety Investigation’s

inquiry into the causes of the flight’s disappearance. (See generally Safety

Investigation Rpt.; see also id. at 21 (noting that the “sole objective of the investigation

[was] prevention of accidents and incidents [and not] to apportion blame or liability”).)

10 In that report, the team noted that it “was likely” that the left turn that took the aircraft

back over Malaysia “was under manual control and not the autopilot.” (Id. at 475.)

However, the investigators could not determine whether or not “the other two turns over

the south of Penang and the north of MEKAR were made under manual control or

autopilot.” (Id.) The report also found that Malaysian air traffic controllers “did not

comply fully with established [air traffic control] procedures” and did not initiate

emergency procedures “in a timely manner[,]” and that Vietnamese air traffic

controllers had also failed to communicate timely with Malaysian controllers about the

disappearance of the plane. (Id. at 476.)

With respect to the initial loss of communication, investigators reported that

[a]lthough it cannot be conclusively ruled out that an aircraft or system malfunction was a cause, based on the limited evidence available, it is more likely that the loss of communication (VHF and HF communications, ACARS, SATCOM and Transponder) prior to the diversion is due to the systems being manually turned off or power interrupted to them or additionally in the case of VHF and HF, not used, whether with intent or otherwise.

(Id. at 478.) However, the investigation did not otherwise reveal any apparent issues

with the crew, nor did it indicate any problems with the plane’s systems, maintenance,

or cargo. (See id. at 486–89.)

Ultimately, the Annex 13 Investigation Team reported that it was simply “unable

to determine the real cause for the disappearance of MH370.” (Id. at 489.) According

to the report, this inconclusive result was primarily due to the lack of aircraft wreckage

or data from any of the flight recorders—an acute absence of critical information that

prevented investigators from definitively ruling in or ruling out any specific causes.

(See id. at 488–89 (“Without the benefit of the examination of the aircraft wreckage and

11 recorded flight data information, the investigation was unable to identify any plausible

aircraft or systems failure mode that would lead to the observed systems deactivation,

diversion from the filed flight plan route and the subsequent flight path taken by the

aircraft. However, the same lack of evidence precluded the investigation from

definitely eliminating that possibility. The possibility of intervention by a third party

cannot be excluded either.”).)

The Annex 13 Safety Investigation was not the only review of the potential

causes of the Flight MH370 disaster; Malaysian authorities also launched a criminal

investigation into Flight MH370’s disappearance. As part of the criminal investigation,

the Royal Malaysian Police seized a flight simulator from the home of the pilot in

charge (see Safety Investigation Rpt. at 73), and analysis of this simulator revealed

“that there were seven ‘manually programmed’ waypoint coordinates . . . that when

connected together, will create a flight path from [Kuala Lumpur International Airport]

to an area south of the Indian Ocean through the Andaman Sea” (id. (footnote

omitted)). However, the analysis “did not find any data that showed the aircraft was

performing climb, attitude or heading manouevres, nor did [it] find any data that

showed a similar route flown by MH370.” (Id.) In connection with its investigation,

the Royal Malaysian Police also obtained statements “from the next of kin and relatives,

doctors/care givers, co-workers, friends and acquaintances” of the crew members, and

reviewed “financial records of the flight crew [and] CCTV recordings at [the airport in

12 Kuala Lumpur,]” along with “analy[zing] the radio transmission made between MH370

and ground Air Traffic Control.” (See id. at 404.) 11

4. The Reorganization Of MAS And The Passage Of Act 765

Malaysia Airlines System Berhad (referred to herein as “MAS”) is a

“Government Linked Company” under Malaysian law, meaning that “it is a company in

which the Government of Malaysia has a direct controlling stake.” (FSIA Mem. at 16.)

Following the disappearance of Flight MH370, Khazanah Nasional Berhad—a political

subdivision of the Government of Malaysia and its sovereign wealth fund—purchased

the remaining ownership shares of MAS from minority shareholders, and MAS was

delisted from the Malaysian stock exchange. (See id. at 17.) The Malaysian

government then enacted a law entitled the Malaysian Airline System Berhad

(Administration) Act 2015 (“Act 765”), pursuant to which MAS was placed under

administration and a new, separate entity—Malaysia Airlines Berhad (“MAB”)—was

incorporated to operate as the national airline. (See id.) Among other things, Act 765

empowers MAS’s Administrator to manage and compromise liabilities for the company

(Act 765 §§ 9(1)(b–e)); defend MAS in litigation (id. §§ 10(g–h)); transfer assets from

MAS to MAB (id. §10(o)); and liquidate the assets of MAS (id. §10(e)). (See id. at 32–

33.) MAB assumed certain rights and liabilities from MAS, but under the terms of Act

765, MAB is not a successor corporation of MAS, see id. § 25(1)(a), and has not

assumed any liabilities in connection with Flight MH370, (see Ex. 5 to FNC Reply).

11 Citing to news reports, Plaintiffs contend that the United States’ Federal Bureau of Investigation also participated in the Royal Malaysian Police’s criminal investigation, including analyzing data from the flight simulator. (See Podhurst FNC Opp’n at 16 n.20.)

13 5. Litigation In Malaysia

As of the briefing of the threshold issues that are now before this Court, there are

27 civil cases pending in the High Court of Malaya at Kuala Lumpur (Civil Division)

relating to the loss of Flight MH370, and these cases have been transferred to a single

judge for coordinated proceedings. (Decl. of Saranjit Singh (“Singh Decl.”), Ex. 13 to

FNC Mem, ECF No. 37-13, ¶ 7.) Of the 88 decedents represented in legal actions that

are part of the instant MDL, 77 are also represented in the cases pending in Malaysia,

and the defendants in the Malaysian cases include MAS, MAB, AGCS SE, and a

number of Malaysian governmental entities. (See id. ¶ 9.) Boeing has not been named

as a defendant in any of the Malaysian cases.

The Malaysian High Court has declined the plaintiffs’ request to stay the

Malaysian proceedings pending resolution of the instant forum non conveniens motion.

(See id. ¶¶ 10–13.) In addition, the Malaysian High Court also denied the request of

some of the attorneys who have filed MDL cases to be admitted to represent their

clients in the Malaysian matters. (See Decl. of Tommy Thomas, Ex. 1 to Podhurst FNC

Opp’n, ECF No. 68-1, ¶ 11.)

B. The Design, Manufacture, And Maintenance Of The Aircraft

The equipment for Flight MH370 was a Boeing 777-2H6ER (Serial Number

28420) that was designed and manufactured at Boeing’s facility in Washington state in

May of 2002, and was delivered to MAS in new condition on May 31, 2002. (See Barr

Decl. ¶ 17; Fact Investigation Rpt. at 42.) It is undisputed that all of the records related

“to the design, manufacture, assembly, testing, and certification of the 777 model

aircraft” are located in Boeing’s facilities in Washington, as are the Boeing employees

who have knowledge of these matters. (See Barr Decl. ¶ 17.) In addition, records

14 related to any customer support that Boeing may have provided to MAS regarding the

plane are also located in the United States, possibly in California. (See id.)

After delivery of the aircraft, the MDCA certified the plane as airworthy, and

that certification was current at the time of Flight MH370’s disappearance. (See Safety

Investigation Rpt. at 409.) MAS was responsible for maintenance of the aircraft, and

original records related to such work are located in Malaysia, as are the MAS

employees who completed the work. (See Barr Decl. ¶¶ 12–13.) Review of MAS’s

maintenance files during the Annex 13 investigation indicated that MAS conducted

regular maintenance on the aircraft, and that “all applicable Airworthiness Directives

for mandatory compliance were complied with.” (See Fact Investigation Rpt. at 44;

Safety Investigation Rpt. at 409–411.) 12 The only maintenance issue that the Annex 13

Investigation revealed was that the battery on the plane’s solid state flight data recorder

underwater locator beacon was overdue for replacement. (See Safety Investigation Rpt.

at 183.)

II. PROCEDURAL HISTORY

A. The Commencement Of Litigation In The United States

In early 2016, many of the legal representatives or beneficiaries of passengers

who had perished on Flight MH370 initiated litigation in the United States related to the

disappearance of the flight—a total of 40 cases were initially filed in four different

locations (the District of Columbia, California, New York, and Illinois). (See Sch. A to

12 Plaintiffs assert that there are “364 Airworthiness Directives currently posed on the FAA website” related to the Boeing 777-200 aircraft, many of which “concern potential electrical and structure failure[s] of the 777-200[.]” (Motley Rice FNC Opp’n at 7–8.) Plaintiffs further contend that records pertaining to these directives are located in the United States. (Id.)

15 Transfer Order, ECF No. 1; Sch. CTO-1 to Conditional Transfer Order (“CTO-1”), ECF

No. 2.) On June 6, 2016, the JPML centralized all proceedings regarding the

disappearance of Flight MH370 in this Court (see Transfer Order), and issued orders

transferring the pending cases to this Court for coordinated pretrial proceedings (see id.

at 3; CTO-1 at 1). After the MDL was created and the initial transfers took place, two

additional cases were filed—one in the District of South Carolina, and another in the

Western District of Washington—and those two cases were also transferred to this

Court. (See Conditional Transfer Order, ECF No. 57, at 3.)

1. The Plaintiffs

For the purpose of the instant threshold motions, Plaintiffs have self-divided into

two groups, with one group consisting of legal representatives/beneficiaries who are

represented by the law firms of Podhurst Orseck, P.A., and Wisner Law Firm P.C.

(collectively, the “Podhurst Plaintiffs”), and the second group consisting of similar

individuals represented by Motley Rice LLC, and Spagnoletti & Co. (collectively, the

“Motley Rice Plaintiffs”). The Podhurst Plaintiffs can be further subdivided into two

groups, with the first consisting of the plaintiffs in two cases brought against MAS and

MAB under the Montreal Convention, 13 and the second consisting of the plaintiffs in 32

cases that assert state law wrongful death and products liability claims against Boeing. 14

13 See Wood v. Malaysia Airlines Berhad, 16cv0053; Gaspard v. Malaysia Airlines Berhad, 16cv0419. 14 Li v. The Boeing Co., 16cv1128; Xiao v. The Boeing Co., 16cv1129; Gao v. The Boeing Co., 16cv1130; Feng v. The Boeing Co., 16cv1131; Wang v. The Boeing Co., 16cv1132; Wang v. The Boeing Co., 16cv1134; Pang v. The Boeing Co., 16cv1135; Liang v. The Boeing Co., 16cv1136; Hu v. The Boeing Co., 16cv1137; Zhou v. The Boeing Co., 16cv1138; Hu v. The Boeing Co., 16cv1139; Wang v. The Boeing Co., 16cv1140; Zhang v. The Boeing Co., 16cv1143; Tian v. The Boeing Co., 16cv1144; Li v. The Boeing Co., 16cv1145; Shirath v. The Boeing Co., 16cv1146; Jia v. The Boeing Co., 16cv1147; Gaspard v. The Boeing Co., 16cv1148; Wood v. The Boeing Co., 16cv1149; Santhanam v. The Boeing Co., 16cv1151; Huang v. The Boeing Co., 16cv1152; Kolekar v. The Boeing Co., 16cv1153; Han v. The Boeing Co., 16cv1161; Zhang v. The Boeing Co., 16cv1164; Chen v. The Boeing Co., 16cv1165;

16 (See infra Part II.A.3.) The Motley Rice Plaintiffs can similarly be subdivided into

groups on the basis of the claims they are asserting. (See infra, Part II.A.3.) One group

of Motley Rice Plaintiffs has brought claims under the Montreal Convention against

MAS and MAB, and their complaints additionally name reinsurers AGCS SE and

Haagen as defendants. 15 A second group of Motley Rice Plaintiffs have filed suits that

assert state law wrongful death and products liability claims against Boeing. 16 The final

Motley Rice Plaintiffs group consists of a single case that has scores of named plaintiffs

and asserts claims related to 44 of the Flight MH370 decedents. 17 This group asserts

both Montreal Convention claims and wrongful death/products liability claims against

all of the defendants.

The Podhurst Plaintiffs are citizens and residents of a variety of countries—four

are citizens of the United States; one is a resident of the United States; and 24 are

citizens and residents of India, Australia, or China. (See Podhurst FNC Opp’n. at 21–

22; see also infra, Part IV.A.2; IV.B.2.) The Podhurst Plaintiffs represent, or are

otherwise related to, 62 of the passengers of the fateful Flight MH370, only one of

whom was a citizen of the United States. The rest of the decedents who are referenced

in the Podhurst Plaintiffs’ complaints are citizens and/or residents of India, Australia,

Indonesia, Japan, and China. (See Podhurst FNC Opp’n at 21-22.)

Kolekar v. The Boeing Co., 16cv1166; Gaspard v. The Boeing Co., 16cv1296; Gaspard v. The Boeing Co., 16cv1299; Zhang v. The Boeing Co., 16cv1306; Yuan v. The Boeing Co., 16cv1307; Weeks v. The Boeing Co., 16cv1167; Richards v. The Boeing Co., 17cv0503. 15 See Smith v. Malaysia Airlines Berhad, 16cv0429; Kanan v. Malaysia Airlines Sys. Berhad, 16cv1062; Huang v. Malaysia Airlines Berhad. 16cv1063. 16 Kanan v. The Boeing Co., 16cv1159, Keith v. The Boeing Company, 17cv0518. 17 Zhang v. Malaysia Airlines Berhad, 16cv1048.

17 Two of the Motley Rice Plaintiffs are citizens of the United States (see Compl.,

Keith v. The Boeing Co., 17cv0518, ECF No. 1, ¶ 1; Compl., Smith v. Malaysia Airlines

Berhad, 16cv0439, ECF No. 1, ¶ 39), and one appears to be a citizen of Malaysia (see

Notice of Removal, Kanan v. The Boeing Co., 16cv1159, at 6), while the remainder

appear to be citizens of China (see Compl., Zhang v. Malaysia Airlines Berhad,

16cv1048, ECF No. 1, ¶¶ 42, 44–84). Of the decedents who are referenced in the

Motley Rice complaints, two are United States citizens who were residents of China,

and one is a lawful permanent resident of the United States who was living in China at

the time of Flight MH370’s disappearance. (See Pls.’ Resp. to Def. MAS’s Montreal

Conv. Mot. (“Motley Rice Montreal Convention Opp’n”), ECF No. 66, at 6.) One

appears to be a citizen of Malaysia, and the remainder appear to be citizens of China.

(See Kanan Notice of Removal at 6; Zhang Compl., ¶¶ 42, 44–84.)

2. The Defendants

The various complaints that comprise this MDL name one or more of five

defendants. Defendants MAS and MAB are based in Malaysia, while Boeing’s

commercial aircraft operations are based on the west coast of the United States, in

Washington state. (See Part I.B., supra.) Four of the pending complaints also name as

a defendant AGCS SE, alleging that it is an insurer of MAS; AGCS SE contends that it

is a “Societas Europaea”-organized corporation that exists under the laws of the

European Union, and that it maintains its principal place of business in Munich,

Germany. (See AGCS SE Pers. Juris. Mot. at 9.) 18 The final defendant—Haagen—is an

executive of AGCS SE; he is named as a defendant in two complaints. (Id.)

18 AGCS SE describes its relationship with MAS as “the reinsurer of a retrocession of reinsurance

18 3. The Claims

As noted above, the complaints consolidated in this MDL assert two different

types of claims: Montreal Convention claims against MAS and MAB (and in some

cases, their insurers), and state law wrongful death and products liability claims against

Boeing.

a. The Montreal Convention

The Montreal Convention—formally titled the “Convention for the Unification of

Certain Rules for International Carriage by Air” —is an international treaty to which both

the United States and Malaysia are parties. See May 28, 1999, S. Treaty Doc. No. 106-

45, 1999 WL 33292734 (2000). 19 The Montreal Convention “sets forth uniform rules

for claims that arise out of incidents that occur during international air

transportation[,]” Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1258–59 (11th Cir.

2002), and it “applies to all international carriage of persons, baggage or cargo

performed by aircraft for reward[,]” Art. 1.1, Montreal Conv. There is no dispute that

the disappearance of Flight MH370 involved international carriage within the meaning

of the Montreal Convention.

Article 17 of the Montreal Convention provides that an air “carrier is liable for

damage sustained in case of death or bodily injury of a passenger upon condition only

that the accident which caused the death or injury took place on board the aircraft or in

the course of any of the operations of embarking or disembarking.” Art. 17, Montreal

issued by a Malaysian company to the actual direct insurer of MAS”—in other words, a reinsurer of a reinsurer. (Id.) 19 The Montreal Convention, which became effective on November 4, 2003, succeeded the Warsaw Convention. See Bassam v. Am. Airlines, 287 Fed. Appx. 309, 312 (5th Cir. 2008) (per curiam).

19 Conv. “According to Article 21, a carrier is strictly liable up to [113,000] Special

Drawing Rights (SDR) . . . for damages sustained in case of death or bodily injury to

passengers[.]” Delgado v. Delta Air Lines, Inc., No. 12-23272, 2013 WL 9838339, at

*4 (S.D. Fla. Oct. 31, 2013) (internal quotation marks and citation omitted). 20 In

addition, an air carrier is liable for damages in excess of the initial 113,000 SDR if the

plaintiff claims and establishes such damages, unless the carrier can establish that the

“accident is entirely attributable to events wholly outside the carrier’s control.” Id.

The Montreal Convention specifies that a plaintiff generally can file a lawsuit

seeking damages under the treaty for passenger death or personal injury, as well as

damage to property, “before the court of the [1] domicile of the carrier or [2] of its

principal place of business, or [3] where it has a place of business through which the

contract has been made or [4] before the court at the place of destination.” Montreal

Conv., Art. 33. Moreover, where the claim involves the death or injury of a passenger,

a legal action may also be filed in the country where “at the time of the accident the

passenger has his or her principal and permanent residence and to or from which the

carrier operates services for the carriage of passengers by air, . . . and in which that

carrier conducts its business of carriage of passengers by air from premises leased or

owned by the carrier itself or by another carrier with which it has a commercial

agreement.” Id.

20 “An SDR is a unit of artificial currency which fluctuates based on the global currency market.” Lee v. Air Canada, 228 F. Supp. 3d 302, 306 n.5 (S.D.N.Y. 2017). The Montreal Convention strict liability cap, which was originally set at 100,000, is adjusted periodically, and was 113,000 at the time of the incident.

20 b. Wrongful Death And Products Liability Tort Claims Pertaining To Aviation Disasters

Wrongful death claims are a creature of state law, and in the United States

typically exist to provide “just compensation” to the survivors of a person wrongfully

killed. See Reiser v. United States, 786 F. Supp. 1334, 1335 (N.D. Ill. 1992) (citing Ill.

Rev. Stats. Ch. 70 ¶ 2); see also Aspinall v. McDonnell Douglas Corp., 625 F.2d 325,

327 (9th Cir. 1980) (noting that “[u]nder California law the right of a survivor to

recover under the wrongful death theory is purely statutory”); Rentz v. Spokane Cty.,

438 F. Supp. 2d 1252, 1257 (E.D. Wash. 2006) (explaining that Washington law permits

a personal representative of a deceased individual to maintain a wrongful death suit for

the benefit of the heirs). The evidence in a wrongful death case in the context of an

aviation disaster, as in other wrongful death cases, typically involves proof of the

traditional elements of a negligence claim: duty, breach, causation, and damages,

including proof that the injury was a death. See Kasongo v. United States, 523 F. Supp.

2d 759, 792 (N.D. Ill. 2007).

Products liability claims, which are generally brought under state common law,

can proceed under either a strict liability or a negligence theory, and require proof of

the causal relationship between a manufacturer’s product and the injury a plaintiff has

suffered. Thornton v. M7 Aerospace LP, 796 F.3d 757, 770 (7th Cir. 2015); see also

Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 554 (D.C. Cir. 1993) (explaining

that “[i]n order to recover, an injured plaintiff must demonstrate not only that the

product is defective, but also that the defect proximately caused plaintiff’s injury in that

but for the defect, the injury would not have occurred” (internal quotation marks and

citation omitted)). Thus, such cases typically involve evidence regarding the nature of

21 the defect (manufacturing, design, or otherwise); the incident itself; and the damages

suffered. See id. Plaintiffs here intend to rely upon a res ipsa loquitur theory of

causation, pursuant to which a jury can infer that a manufacturer’s negligence caused

the plaintiff’s injury based on the circumstances of the case, rather than direct proof of

a product defect. (See Mot. Hr’g Tr. at 38:4–8.) See also Restatement (Third) of Torts:

Phy. & Emot. Harm § 17 (2010). With respect to aviation disasters, which might

involve negligence by someone other than the plane manufacturer, “res ipsa loquitur

can be found applicable only if the plaintiff has offered evidence tending to negate the

presence of causes other than the defendant’s negligence.” Restatement (Third) of

Torts: Phy. & Emot. Harm § 17.

B. Defendants’ Threshold Motions

At the parties’ request, this Court ordered initial discovery limited to six

topics—forum non conveniens; jurisdiction under the Foreign Sovereign Immunities

Act; jurisdiction under the Montreal Convention; personal jurisdiction; plaintiffs’

capacity to bring suit; and whether plaintiffs have stated a plausible claim against

AGCS SE and Haagen—and set a schedule for the briefing and filing of dispositive

motions related solely to those topics. (See Scheduling Order, ECF No. 14, at 1–2.)

Following the discovery period, Defendants filed the joint motion seeking dismissal

under the doctrine of forum non conveniens that is the subject of this opinion. (See

Joint Mot. to Dismiss on the Ground of Forum Non Conveniens (“FNC Mot.”), ECF No.

37.) Various defendants filed four other motions related to these threshold topics. 21

21 These are: a motion by MAS and MAB seeking dismissal of the claims against them based on sovereign immunity (see Defs.’ Rule 12(b)(1) Mot. to Dismiss on the Ground of Immunity Pursuant to the Foreign Sovereign Immunities Act, ECF No. 39); a motion by MAS seeking dismissal of the

22 In their joint forum non conveniens motion, Defendants argue that all of the

pending complaints should be dismissed in favor of litigation in Malaysia, under the

Supreme Court’s holding in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). 22

Defendants maintain that Malaysia is an adequate and available forum for litigation of

all of Plaintiffs’ claims. (See FNC Opp’n at 21–23.) They also argue that the balance

of private and public factors weighs in favor of dismissal, because the vast majority of

evidence regarding liability is in Malaysia, and that it would be difficult to obtain the

testimony of unwilling Malaysian witnesses in the United States. (See id. at 24–32.)

Defendants further assert that not all potential defendants can be joined as defendants in

United States courts (see id. at 32–33), and that this Court could be called upon in the

context of this litigation to determine the validity of Act 765 (see id. at 39–40).

Moreover, Defendants contend that Malaysia’s interest in resolving lawsuits arising

from the disappearance of Flight MH370 far outweighs any interest the United States

has in this matter, even taking into account Boeing’s status as an American company

and the presence of a few American plaintiffs and decedents. (See id. at 37–41.)

Plaintiffs oppose dismissal based on forum non conveniens, and the two plaintiffs

groups have filed two separate oppositions. 23 The Podhurst Plaintiffs concede that

Montreal Convention for lack of jurisdiction (see Def. MAS’s Rule 12(b)(1) Mot. to Dismiss Pls.’ Compls. On the Ground of Lack of Subject Matter Juris. Pursuant to the Montreal Convention, ECF No. 38); a motion by AGCS SE seeking dismissal of the claims against it for lack of personal jurisdiction (see Def. AGCS SE’s Rule 12(b)(2) Mot. to Dismiss for Lack of Personal Juris., ECF No. 35); and a motion by AGCS SE and Haagen seeking dismissal for failure to state a claim (see Defs. AGCS SE and Henning Haagen’s Rule 12(b)(6) Mot. to Dismiss for Failure to State a Claim, ECF No. 36). 22 After the two most recent cases were filed and transferred to this Court, Boeing moved to dismiss these two cases on grounds of forum non conveniens as well. (See Mot. to Dismiss Newly Transferred Cases, ECF No. 58.) 23 (Pls.’ Resp. in Opp’n to Defs.’ Joint Mot. to Dismiss on the Ground of Forum Non Conveniens, ECF No. 67; Pls.’ Resp. to the Defs.’ Mot. to Dismiss Under the Doctrine of Forum Non Conveniens, ECF

23 Malaysia is an adequate and available alternative forum (see Podhurst FNC Opp’n at 20

n.30), while the Motley Rice Plaintiffs assert that, because Act 765 has insulated MAB

from liability and there is nothing left of MAS, Malaysia is not an adequate forum (see

Motley Rice FNC Opp’n at 11–17). Both sets of plaintiffs’ briefs also maintain that

little, if any, relevant evidence is located in Malaysia because the plane was never

found and the Malaysian investigators were unable to determine the cause of the

disappearance even after conducting an extensive investigation. (See Podhurst FNC

Opp’n at 35–37; Motley Rice FNC Opp’n at 10.) Plaintiffs further maintain that all

records related to Boeing are located in the United States, and that other relevant

evidence is located in other countries such as China (records related to Chinese

decedents), the United Kingdom (satellite data records), or Australia (search records).

(See Podhurst FNC Opp’n at 30–42; Motley Rice FNC Opp’n at 8–11). In this regard,

the Podhurst Plaintiffs emphasize that none of the decedents that Podhurst represents

are from Malaysia, and that certain of the decedents and plaintiffs in cases they have

filed have connections to the United States. (See Podhurst FNC Opp’n at 17–18.) Both

plaintiff groups also insist that the United States has a strong public interest in ensuring

that an American aircraft manufacturer produces safe airplanes. (See Podhurst FNC

Opp’n at 48–49; Motley Rice FNC Opp’n at 22.)

Defendants’ joint forum non conveniens motion became ripe for this Court’s

consideration on September 8, 2017 (see Joint Reply in Supp. of FNC Mot., ECF No.

72), and the Court heard oral argument on all of the threshold motions on December 19,

2017 (see Min. Entry Of Dec. 19, 2017).

No. 68.)

24 III. MOTIONS TO DISMISS BASED ON FORUM NON CONVENIENS

Although a court must ordinarily rule upon questions concerning its own

jurisdiction before assessing the merits of any other motion, an exception exists when a

forum non conveniens motion is filed; it is well established that a court may opt to

decide a forum non conveniens motion before considering any jurisdictional issues. See

Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007).

The standard used to evaluate a motion seeking dismissal based on the doctrine of

forum non conveniens is clear beyond cavil. The movant bears the burden of showing

that (1) there is an available and adequate alternative forum, and (2) the balance of

various public and private interest factors indicates that maintaining the case in the

current forum is comparatively inconvenient. See Piper Aircraft Co., 454 U.S. at 254

n.22; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); Agudas Chasidei

Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008); Azima v. RAK

Inv. Auth., 305 F. Supp. 3d 149, 160 (D.D.C. 2018). “[T]he district court is accorded

substantial flexibility in evaluating a forum non conveniens motion, and each case turns

on its facts.” Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988) (internal citations

and quotation marks omitted). Indeed, “[i]f central emphasis were placed on any one

factor, the forum non conveniens doctrine would lose much of the very flexibility that

makes it so valuable.” Simon v. Rep. of Hungary, 277 F. Supp. 3d 42, 62 (D.D.C. 2017)

(internal quotation marks and citation omitted).

A foreign forum is available and adequate when it “provide[s] the plaintiff with

‘some’ remedy[,]” Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656,

666 (9th Cir. 2009), even if the damages available to the plaintiff would be less than

those available in the United States, and even if certain theories of liability are not

25 recognized, see Piper Aircraft Co., 454 U.S. at 247, 255. On the other hand, where the

alternative forum could not award any relief to a plaintiff at all, courts will find that the

forum is not adequate. See Nemariam v. Fed. Democratic Republic of Ethiopia, 315

F.3d 390, 394 (D.C. Cir. 2003) (finding alternative forum was inadequate because the

governing law barred plaintiff from directly filing her claim); Yueh-Lan Wang by &

through Winston Wen-Young Wong v. New Mighty U.S. Tr., 322 F.R.D. 11, 26 (D.D.C.

2017) (holding that alternative forum was inadequate where plaintiff’s claim would be

time-barred); see also In re Air Crash Disaster Near Bombay, India on Jan. 1, 1978,

531 F. Supp. 1175, 1191 (W.D. Wash. 1982) (finding that a case involving India’s

national air carrier should be litigated in India, but denying forum non conveniens

motion where Indian forum was unavailable to plaintiffs).

The public interest factors that a court must consider when assessing a motion to

dismiss for forum non conveniens include “having localized controversies decided at

home”; minimizing “administrative difficulties” such as court congestion and imposing

jury duty on citizens in a “community which has no relation to the litigation”; and

unnecessarily burdening courts with “problems in choice-of-law and the application of

foreign law.” D & S Consulting, Inc. v. Kingdom of Saudi Arabia, 322 F. Supp. 3d 45,

49–50 (D.D.C. 2018); see also Gulf Oil Corp., 330 U.S. at 508–09; Pain v. United

Techs. Corp., 637 F.2d 775, 791–92 (D.C. Cir. 1980). And when balancing the private

interests in litigating the claims at issue in a particular forum, a court considers a

variety of factors, including “the relative ease of access to sources of proof”; the

availability of compulsory process for the attendance of witnesses and the cost of

obtaining attendance; the enforceability of any judgment; the “possibility of view of

26 premises, if view would be appropriate to the action; and all other practical problems

that make trial of a case easy, expeditious and inexpensive.” Am. Dredging Co. v.

Miller, 510 U.S. 443, 448 (1994) (internal quotation marks and citation omitted).

Because forum non conveniens is a procedural question, this Court applies D.C.

Circuit law in deciding forum non conveniens motions. See Am. Dredging Co., 510

U.S. at 453; In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1178

(D.C. Cir. 1987). Moreover, and notably, in the context of aviation disasters, “[t]he

plaintiff’s choice of forum will not be disturbed unless the private and public interest

factors strongly favor trial in the foreign country.” In re Air Crash Over Mid-Atl. on

June 1, 2009 (“Air France”), 760 F. Supp. 2d 832, 839 (N.D. Cal. 2010). Furthermore,

the nationality of the plaintiff has some relevance to a court’s consideration of the

forum non conveniens question, as the Supreme Court has explained:

[T]here is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. . . . [H]owever, . . . the presumption applies with less force when the plaintiff or real parties in interest are foreign.

Piper Aircraft Co., 454 U.S. at 255.

IV. ANALYSIS

Defendants’ joint motion for dismissal of the instant MDL cases on forum non

conveniens grounds requires this Court to consider the adequacy of Malaysia as a forum

for litigating claims related to this incident, and, as reflected in the myriad applicable

public and private interest factors, the Court must also balance the significant

relationship between Malaysia and the claims brought in these cases, on the one hand,

against the manifestly less-substantial connection between the Flight MH370 disaster

27 and the United States, on the other. The substantial connections that exist between the

country of Malaysia and the tragic incident that precipitated the legal actions that

comprise the instant MDL are undeniable, as explained below. Boeing’s role as the

missing plane’s manufacturer and the alleged U.S. citizenship or resident status of a

few of the named plaintiffs and decedents are significant considerations too, but this

Court’s assessment of the established forum non conveniens factors compels the

conclusion that neither the Montreal Convention claims nor the wrongful death and

products liability claims that are at issue in these cases are ultimately more

conveniently litigated in the United States than in Malaysia. As a result, and for the

reasons discussed below, the Court concludes that Defendants’ motion for dismissal

based on forum non conveniens must be granted, and the 40 pending cases that

compromise this MDL must be dismissed.

A. On Balance, And When Compared To Malaysia, The United States Is An Inconvenient Forum For The Litigation Of Plaintiffs’ Montreal Convention Claims Against MAS/MAB

Six cases currently pending in this MDL assert Montreal Convention claims

against MAS and MAB (and, in two instances, their affiliated insurers): two of the

cases that the Podhurst Plaintiffs have filed, and four of the cases that the Motley Rice

Plaintiffs have filed. See Wood v. Malaysia Airlines Berhad, 16cv0053; Gaspard v.

Malaysia Airlines Berhad, 16cv0419; Smith v. Malaysia Airlines Berhad, 16cv0439;

Kanan v. Malaysia Airlines Sys. Berhad, 16cv1062; Huang v. Malaysia Airlines Berhad.

16cv1063; Zhang v. Malaysia Airlines Berhad, 16cv1048. Careful consideration of the

established forum non conveniens factors persuades this Court that, notwithstanding the

fact that some of these cases involve U.S. plaintiffs or decedents, the Montreal

28 Convention claims that these cases raise would be more conveniently litigated in

Malaysia than the United States. See Piper Aircraft Co., 454 U.S. at 255–56.

1. Malaysia Is An Available And Adequate Forum For Litigation Of Plaintiffs’ Montreal Convention Claims

With respect to the first factor in the forum non conveniens analysis, this Court

readily finds that Malaysia is an available and adequate alternative forum for litigation

of Plaintiffs’ Montreal Convention claims. See Giro, Inc. v. Malaysian Airline Sys.

Berhad, No. 10 CIV. 5550 (JGK), 2011 WL 2183171, at *7 (S.D.N.Y. June 3, 2011)

(holding that Malaysia is an adequate alternative forum under the Piper standard);

Simcox v. McDermott Intl., Inc., 152 F.R.D. 689, 700 (S.D. Tex. 1994) (same);

Jayaraman v. Salomon, Inc., No. 87 Civ. 2781 (MJL), 1991 WL 61071, at *4 (S.D.N.Y.

Apr. 5, 1991) (same). The Podhurst Plaintiffs do not dispute that the Malaysian courts

are available and adequate with respect to litigating these claims (see Podhurst FNC

Opp’n at 20 n.30), and as noted, cases brought against MAS and MAB relating to the

Flight MH370 disaster are currently pending in that country’s courts (see Singh Decl.

¶ 7). Malaysia is also a signatory to the Montreal Convention, and because Malaysia is

both the domicile and the principal place of business of the airline that operated Flight

MH370, Malaysian courts have the power to hear Plaintiffs’ Montreal Convention

claims under the terms of the Montreal Convention itself. See Montreal Conv., Art. 33.

The Motley Rice Plaintiffs contend nevertheless that Malaysia is not an available

and adequate forum for the purpose of the forum non conveniens analysis because, due

to the Malaysian legislature’s enactment of Act 765, “there is nothing left of MAS

except one ‘Administrator’ who has no MAS property, records or assets to administer.”

(Motley Rice FNC Opp’n at 12.) In this Court’s view, this assertion is an unpersuasive

29 basis for continuing to litigate these matters in the United States for at least two

reasons. First of all, it appears that MAS’s status as a former commercial entity is

immaterial to its ability to satisfy any judgment against it under the Montreal

Convention or otherwise, because MAS holds an insurance policy from which claims

and judgments can be paid. (See Decl. of Brendan Baxter, Ex. A to AGCS SE Pers.

Juris. Mot., ECF No. 35-2, ¶¶ 20–23.) Moreover, even if MAS is judgment-proof, that

status hardly compels the conclusion that the United States is a more convenient forum,

which is the relevant issue with respect to the forum non conveniens analysis. Indeed,

if the Motley Rice Plaintiffs are correct that MAS no longer has any assets as a result of

the Malaysian legislature’s enactment of Act 765, it is debatable whether they can

obtain the relief they seek even if their cases remain in the United States. Cf. Hourani

v. Mirtchev, 796 F.3d 1, 11–12 (D.C. Cir. 2015) (noting that the act of state doctrine

“prevents federal courts from declaring invalid the official act of a foreign sovereign

involving activities undertaken within its own territory” (alterations, internal quotation

marks, and citations omitted)).

In any event, it is well established that the availability and the adequacy of a

forum does not turn on whether exactly the same remedy that exists in the United States

is available in the foreign forum. See Piper Aircraft Co., 454 U.S. at 247, 255 (holding

that a forum is adequate so long as some remedy is available, even if the remedy is not

as fulsome as in the United States); see also Chin-Ten Hsu v. New Mighty U.S. Tr., 308

F. Supp. 3d 178, 185 (D.D.C. 2018) (noting “[t]he inquiry under [forum non

conveniens] is focused on the availability and adequacy of an alternate forum, not the

nuances of each party’s respective advantages or disadvantages if the suit is brought

30 abroad” (internal alterations omitted)). It is only in “rare circumstances where the

remedy provided by the alternative forum is so clearly inadequate or unsatisfactory[]

that it is no remedy at all, that this requirement is not met.” Lueck v. Sundstrand Corp.,

236 F.3d 1137, 1143 (9th Cir. 2001) (internal quotation marks, citation, and alterations

omitted). And Motley Rice has not provided any reason to suggest that plaintiffs “will

be deprived of all remedies or treated unfairly” if these cases are litigated in the

Malaysian legal system. Irwin v. World Wildlife Fund, Inc., 448 F. Supp. 2d 29, 33

(D.D.C. 2006). Compare id. at 34 (finding that Gabon was an adequate and available

alternative forum because “the Gabonese legal system would allow plaintiffs to

maintain an action against defendant to recover for injuries caused by defendant,

Gabonese law recognizes claims that are similar or comparable to the claims in the

complaint, and these type of claims are routinely heard in Gabon”) with Nemariam, 315

F.3d at 394 (holding that alternative forum was inadequate because the legal claim

could not be brought under governing law); Yueh-Lan Wang, 322 F.R.D. at 26 (same).

Accordingly, this Court finds that Defendants have satisfied the first prong of the

forum non conveniens test. See Piper Aircraft Co., 454 U.S. at 255.

2. The Balance Of The Public And Private Interests Weighs In Favor Of Litigation In Malaysia

a. Malaysia Has A Significant Public Interest In Litigating The Montreal Convention Claims That Arise From The Disappearance Of Flight MH370

As to the public interest in litigating the claims at issue, this Court finds that

Malaysia has an overwhelming interest in the resolution of any Montreal Convention

claims that have been asserted against its own national carrier due to one of the largest

aviation disasters in Malaysian history. See, e.g., In re Air Crash Near Peixoto De

31 Azeveda, 574 F. Supp. 2d 272, 288 (E.D.N.Y. 2008) (noting that Brazil’s interest in

resolving litigation involving the largest aviation accident in its history “is obvious”),

aff’d sub nom. Lleras v. Excelaire Servs. Inc., 354 F. App’x 585 (2d Cir. 2009); see

also Torreblanca de Aguilar v. Boeing Co., 806 F. Supp. 139, 144 (E.D. Tex. 1992)

(finding that Mexico had “the paramount interest in this lawsuit” because, among other

things, the airline at issue was “owned and regulated by the Mexican government”).

To be sure, Flight MH370 disappeared when it was flying over international

waters rather than over Malaysian territory (see Podhurst FNC Opp’n at 12–13 (arguing

that “Flight MH370 crashed . . . not in Malaysia, nor anywhere near Malaysia, but [in

the ocean] thousands of miles away”)), but Malaysia’s myriad connections to that flight

are undeniably substantial. It was Malaysia’s national air carrier—MAS—that operated

Flight MH370, and the ill-fated aircraft departed from an airport in Kuala Lumpur

shortly before its disappearance, as detailed and documented in Part I.A.1 above.

Malaysian air traffic controllers were the last persons to have direct contact with the

pilot and crew, who were themselves Malaysian citizens. And after the aircraft

vanished, Malaysian officials were responsible for leading the civil safety investigation

pursuant to an international treaty. Malaysian authorities further conducted a separate

criminal investigation concerning individuals who were known to have contact with the

flight and/or aircraft, and the Malaysian court system has now undertaken to entertain a

host of lawsuits that were filed in that jurisdiction by representatives and heirs of the

decedents—in fact, 77 of the 88 Flight MH370 passengers whose interests are

represented in the cases that are now before this Court are also the subject of pending

Malaysian lawsuits that arise out of these same unfortunate circumstances. What is

32 more, the Flight MH370 disaster was of such significance to the government of

Malaysia that it enacted legislation reorganizing MAS and creating MAB in the wake of

these events.

All of these facts underscore the very strong Malaysian interest in the Montreal

Convention claims arising from this tragedy. See Air France, 760 F. Supp. 2d at 846

(explaining that “France’s interest is especially obvious here because it is also

conducting the official civil investigation and an official criminal investigation”);

Torreblanca de Aguilar, 806 F. Supp. at 144 (finding that public interest favored

Mexico where, among other things, “[t]he accident investigation was conducted by the

Mexican government at considerable expenditure of resources”); In re Disaster at

Riyadh Airport, Saudi Arabia, on Aug. 19, 1980, 540 F. Supp. 1141, 1152 (D.D.C.

1982) (dismissing case based on forum non conveniens where airplane was owned and

operated by national corporation of proposed alternative forum and maintained in that

foreign country, and where alternative forum conducted the official investigation of the

accident); Lumenta v. Bell Helicopter Textron, Inc., No. 01-14-00207-CV, 2015 WL

5076299, at *6 (Tex. App. Aug. 27, 2015) (granting forum non conveniens motion

where crash occurred in Indonesia, and witnesses and relevant records related to

maintenance of aircraft and air traffic control communications with aircraft before crash

were located in Indonesia).

Setting aside the fact that three of the plaintiffs in the MDL cases that assert

Montreal Convention claims have connections to the United States, and four of the

related decedents were either citizens or legal residents of the United States—factors

that are discussed separately in Part IV.A.2.c below—the United States’s interest in

33 Plaintiffs’ Montreal Convention claims against MAS and MAB is relatively minor.

Indeed, the best that the Motley Rice Plaintiffs can muster on this front is the argument

that “the President of the United States promised these plaintiffs, families of the

relatives of MH370, in English and Chinese, that the United States of America would

do ‘all we can to help in the search efforts to find the plane that carried your family

members[.]’” (Motley Rice FNC Opp’n at 4 (alterations omitted)). Of course, this is

far from a commitment to make the U.S. court system available as a forum for the

litigation of these family members’ legal claims against Malaysia’s national air carrier.

And “given the comparatively limited interest that the United States has in resolving

litigation stemming from the crash,” it is relatively easy to find “that the burden on the

judiciary and potential jurors if these matters were kept here is another public interest

factor favoring dismissal.” Air France, 760 F. Supp. 2d at 84; see also Vivendi SA v. T-

Mobile USA, Inc., 586 F.3d 689, 696 (9th Cir. 2009); see also In re Disaster at Riyadh

Airport, Saudi Arabia, on Aug. 19, 1980, 540 F. Supp. at 1152 (finding that “jury duty

ought not to be imposed upon the people of the United States nor should United States

courts be clogged by processing these cases when the underlying accident has such

tenuous contacts to the United States”).

Finally, this Court notes that these cases will likely present complex conflicts-of-

law questions, which is another public interest factor that weighs in favor of dismissal

on forum non conveniens grounds. See Piper Aircraft Co., 454 U.S. at 265 (noting that

“the public interest factors point towards dismissal where the court would be required

to untangle problems in conflict of laws, and in law foreign to itself” (internal quotation

marks and citation omitted)); see also Air France, 760 F. Supp. 2d at 847 (explaining

34 that “the possibility that French law will apply is an additional factor favoring

dismissal”); Proyectos Orchimex de Costa Rica, S.A. v. E.I. du Pont de Nemours & Co.,

896 F. Supp. 1197, 1204 (M.D. Fla. 1995) (“Without deciding the choice of law issue,

the court finds that the possibility that foreign law will apply weighs strongly in favor

of dismissal.”). Indeed, “[t]he selection of the applicable law in aircraft disaster

litigation has been a vexing issue for courts over time.” In re Air Crash at Belle

Harbor, New York on Nov. 12, 2001, No. MDL 1448 (RWS), 2006 WL 1288298, at *4

(S.D.N.Y. May 9, 2006); see also In re Air Crash Off Long Island, New York, on July

17, 1996, No. 96-cv-7986, 1998 WL 292333, at *11 (S.D.N.Y. June 2, 1998) (noting

that “[d]ifficult choice of law issues arise when an aircraft transporting people from

several nations meets a tragic end in federal territory not belonging to any state”), aff’d

and remanded, 209 F.3d 200 (2d Cir. 2000). Courts presiding over cases involving

airline disasters have to decide whether to apply the law of the primary place of

business of the airline, the law of the decedent’s residence, or the law of the place

where the accident took place, among other options. See In re Air Crash Disaster Near

Chicago, Ill. on May 25, 1979, 644 F.2d 594, 604 (7th Cir. 1981). The parties here

have already pointed to a variety of jurisdictions as possible sources of governing law

in this case, including Malaysian law, Chinese law, the U.S. Death on the High Seas

Act, and the common law of the various states where the plaintiffs initially filed their

complaints. (See FNC Mem. at 42; Podhurst FNC Opp’n at 53–55.)

“The doctrine of forum non conveniens . . . is designed in part to help courts

avoid conducting complex exercises in comparative law.” Piper Aircraft Co., 454 U.S.

at 251. It is also potentially troubling that this Court might be called upon to consider

35 the validity of Act 765, which the Motley Rice Plaintiffs have alleged is invalid and

improper. (Motley Rice FNC Opp’n at 13–16.) Questions regarding the validity of

foreign laws that are effective in foreign countries are better left to courts in those

countries, see Hourani, 796 F.3d at 11–12; thus, the possibility that this Court might

have to address such complex, novel legal issues is another public interest factor that

weighs heavily in favor of dismissing the Montreal Convention claim cases.

b. The Private Interests Also Generally Weigh In Favor Of Litigating Plaintiffs’ Montreal Convention Claims In Malaysia

As explained above, the relevant private interest factors in the forum non

conveniens analysis include “the relative ease of access to sources of proof; [the]

availability of compulsory process for attendance of unwilling [witnesses] and the cost

of obtaining attendance of willing[] witnesses; [the] possibility of view of premises, if

view would be appropriate to the action; and all other practical problems that make trial

of a case easy, expeditious and inexpensive.” Gulf Oil Corp., 330 U.S. at 508. This

Court’s evaluation of these and similar private interest factors begins with the

recognition that standard Montreal Convention claims are strict liability claims that

ordinarily raise limited questions of fact—specifically, whether an accident occurred

with respect to a carrier’s aircraft, and the amount of damages suffered. See Art. 21,

Montreal Conv. (imposing strict liability on a carrier for damages up to a set amount of

special drawing rights). Moreover, here, in addition to the lack of any dispute

regarding the existence of the Flight MH370 disaster, Plaintiffs have agreed to make all

damages-related evidence available, at their own expense, in the United States. (See

Podhurst FNC Opp’n at 33 n.59.) Thus, litigation of Plaintiff’s strict liability Montreal

Convention claims in the United States will not necessarily inconvenience Defendants.

36 However, with respect to the Montreal Convention claims at issue in this MDL,

the private interest-balancing inquiry does not stop there, because Plaintiffs have made

clear that they are seeking damages in excess of the first 113,000 special drawing

rights. (See, e.g., Compl., Wood v. Malaysia Airlines Berhad, 16cv0053, ECF No. 1,

¶ 59; Compl., Smith v. Malaysia Airlines Berhad, 16cv0439, ECF No. 1, ¶ 115.) The

Montreal Convention permits plaintiffs to recover such excess damages (assuming their

evidence establishes those loss values), but the carrier is also authorized to defend

against any such judgment by demonstrating that the “accident is entirely attributable to

events wholly outside the carrier’s control.” Delgado, 2013 WL 9838339, at *4. And it

is that inquiry that will necessarily expand the scope of the litigation related to

Plaintiffs’ Montreal Convention claims such that litigating these claims in the United

States could become unduly burdensome.

This is so because the logical alternative party to which MAS/MAB could point

as being responsible for the disappearance of Flight MH370 is aircraft manufacturer

Boeing—Plaintiffs have acknowledged (and embraced) this possibility, presumably

because Boeing is a U.S. corporation. (See Podhurst FNC Opp’n at 31–35; see also id.

at 35–36 (observing that the evidence pertaining to Boeing’s role in manufacturing the

aircraft at issue is located in the United States).) And Boeing’s response to any such

charge might well be to contend that the design and manufacture of the aircraft was not

responsible for Flight MH370’s disappearance; instead its loss was caused by some

other factor—such as pilot suicide, cargo fire, or terrorism—and such allegations

plainly open the door to an assessment of what, in fact, caused Flight MH370 to

disappear. In other words, because a carrier sued under the Montreal Convention can

37 cast blame on other potentially responsible parties to defend against the plaintiffs’

recovery of amounts in excess of the 113,000 drawing rights strict-liability cap, and

those other parties can point to other potential causes, any claim for excess damages

necessarily involves the possibility of full-blown litigation into the fault issue that the

strict-liability aspect of Montreal Convention claims seeks to avoid.

And, of course, once liability is at issue, MAS/MAB and any other implead

defendants would be entitled to take discovery on that topic. See Fed. R. Civ. P 26(b)

(authorizing parties to take discovery “regarding any nonprivileged matter that is

relevant to any party’s claim or defense”). Here, liability-related evidence might

include satellite-communication evidence located in the United Kingdom, debris

evidence in France and Australia, and search records that are also located in Australia,

and the discovery quest would also inevitably include seeking the potentially vast

amounts of materials and information that are located in Malaysia, including personnel

files, airline maintenance records, manuals, air traffic control recordings, video

recordings, cargo records, and bank records. See Pain, 637 F.2d at 786–87 (noting that

maintenance records and accident reports prepared by a foreign government were

relevant to an aircraft manufacturer’s defense or tort claims arising from crash). Many

relevant witnesses are also located in Malaysia, including airline employees, family

members and acquaintances of the crew, air traffic controllers, cargo shippers, and

Malaysian investigators, among others. And the fact that Malaysia is not a party to the

Hague Convention means that the only way to enforce any discovery requests on any

unwilling Malaysian parties would be through the “burdensome, costly, and time-

consuming” letters rogatory process. Quaak v. KPMG Bedrijfsrevisoren, 361 F.3d 11,

38 21 & n.4 (1st Cir. 2004). (See also FNC Mem. at 31; Podhurst FNC Opp’n at 42

(acknowledging that Malaysia is not subject to the Hague Convention).)

Courts regularly find that the inability to compel witnesses and evidence except

through letters rogatory is a compelling factor that weighs in favor of dismissal based

on forum non conveniens. See, e.g., Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1331 (11th

Cir. 2011) (affirming forum non conveniens dismissal where United States court

“lack[ed] the authority to compel certain witnesses to attend proceedings in that

jurisdiction”); Clerides v. Boeing Co., 534 F.3d 623, 630 (7th Cir. 2008) (affirming

forum non conveniens dismissal where “the court concluded reasonably that the

superiority of live testimony and the inconvenience of taped depositions obtained by

letters rogatory favored dismissal”). This Court considers this potential practical

problem to be a compelling argument that supports dismissal of the instant cases.

Plaintiffs’ response is to insist that there is really no need to look at Malaysian

sources of evidence, nor should the Court be concerned about the difficulty of enforcing

any discovery-related subpoenas, because the Annex 13 Safety Investigation did not

unearth any issues with maintenance of the plane, the pilots, the weather, cargo, or

anything else that pointed to the cause of the incident, so it is safe to assume that no

relevant evidence currently exists in Malaysia. (See Motley Rice FNC Opp’n at 4

(“[A]lmost no evidence is in Malaysia—a fact confirmed in Malaysia’s Safety

Investigation for MH370.”); Mot. Hr’g Tr. (Dec. 19, 2017), ECF No. 90, at 39:25–40:1

(arguing that “there is no evidence in Malaysia relevant to the question of what

happened to this plane”).) Plaintiffs fail to cite a single case that squarely supports the

proposition that a civil defendant is barred from revisiting issues and evidence that were

39 explored during an investigation conducted under Annex 13 of the Convention on

International Civil Aviation, much less that a court must grant preclusive effect to the

conclusions of any such Annex 13 investigation in the context of related civil litigation.

Rather, it is axiomatic that civil defendants have the right to develop and present their

defense, and in this case, because Plaintiffs are seeking damages in excess of the strict-

liability drawing rights cap, the defense would necessarily involve discovery pertaining

to the issue of fault, including exploration of any and all potential causes of the

disappearance of Flight MH370. See Nolan v. Boeing Co., 762 F. Supp. 680, 683 (E.D.

La. 1989), aff’d, 919 F.2d 1058 (5th Cir. 1990).

Two final points bear noting. First, except as discussed in Part IV.A.2(c) below,

the vast majority of the Montreal Convention decedents appear to have no connections

whatsoever to the United States or Malaysia. 42 of the 45 decedents who are referenced

in Motley Rice’s cases, in particular, are citizens of China. (See, Compl., Zhang v.

Malaysia Airlines Berhad, 16cv1048, ECF No. 1, ¶¶ 42, 44–84; Compl., Kanan v.

Malaysia Airlines System Berhad, 16cv1062, ¶ 8 (naming a Malaysian decedent);

Compl., Smith v. Malaysia Airlines Berhad, 16cv0439, ECF No. 1, ¶¶ 41–42 (naming

two American decedents).) The plaintiffs who are proceeding on behalf of these 42

individuals appear to have brought these Montreal Convention claims in the United

States solely by virtue of Defendants AGCS SE American and Haagen—alleged

reinsurers of MAS/MAB who purportedly do business in the United States. (See Pls.’

Resp. in Opp’n to Def. MAB’s Mot. to Dismiss Pls.’ Compls. on the Ground of Lack of

Subject Matter Jurisdiction Pursuant to the Montreal Convention, ECF No. 66 at 12–

13.) This means that most of the evidence related to the damages claimed in Motley

40 Rice’s cases will likely be located in China or Malaysia. And it is no more convenient

to have that evidence translated into English and brought to the United States than it is

to have that evidence translated to Malay and brought to the Malaysian courts to be

considered along with any other evidence pertaining to both damages and liability that

the parties will marshal in litigating the expanded universe of issues that these Montreal

Convention claims raise. See In re Air Crash at Madrid, Spain, on Aug. 20, 2008, 893

F. Supp. 2d 1020, 1033 (C.D. Cal. 2011) (noting that “no matter where these suits are

tried, one side will face difficulty in gathering evidence and presenting witnesses for its

case”), amended on reconsideration in part sub nom. In re Air Crash at Madrid, Spain,

No. 2:10-ML-02135-GAF, 2011 WL 2183972 (C.D. Cal. May 16, 2011), and aff’d sub

nom. Fortaner v. Boeing Co., 504 F. App’x 573 (9th Cir. 2013).

The second residual point is the fact that, because Plaintiffs have opted to sue

both MAS and MAB (on the grounds that MAB is, in effect, a successor to MAS),

evidence regarding the contractual relationship between these two entities is likely to be

relevant to any determination of which entity is responsibility for the payment of

damages with respect to Plaintiffs’ Montreal Convention claims. See Paleteria La

Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 247 F. Supp. 3d 76, 88

(D.D.C. 2017) (explaining that a successor corporation generally does not assume

liabilities of predecessor unless, among other things, there was an agreement to transfer

the liabilities). That evidence, too, will be undoubtedly be located in Malaysia—yet

another factor that weighs in favor of dismissal of Plaintiffs’ Montreal Convention

claims on forum non conveniens grounds.

41 c. The Fact That Some Of Plaintiffs’ Montreal Convention Claims Involve Plaintiffs Or Decedents With United States Connections Is Insufficient to Alter The Outcome

The strongest point that Plaintiffs make in favor of maintaining the Montreal

Convention claims against MAS/MAB in United States courts is the fact that a

plaintiff’s choice of forum generally controls, and that some of the plaintiffs and/or

decedents in the cases at issue here have connections to the United States. (See

Podhurst FNC Opp’n at 21–22.) It is clear beyond cavil that, when faced with a motion

seeking dismissal based on forum non conveniens, a court must grant deference to a

plaintiff’s choice of forum. See Piper Aircraft Co., 454 U.S. at 255. The level of

deference varies based on the nationality of the plaintiff, with a foreign plaintiff being

entitled to less deference than a domestic plaintiff. Id. at 255–256; see also Ravelo

Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000) (noting that “less deference is not

the same thing as no deference”). “The presence of American plaintiffs, however, is

not in and of itself sufficient to bar a district court from dismissing a case on the ground

of forum non conveniens”; rather, a court must still conduct the Piper Aircraft

balancing test. Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983); see also

Pain, 637 F.2d at 795–99 (holding that a district court did not abuse its discretion in

granting forum non conveniens motion, notwithstanding the presence of an American

plaintiff, when aviation accident took place in the North Sea).

Two of the Montreal Convention plaintiffs in this MDL, Smith and Gaspard, are

United States citizens who are the personal representatives of the estates of decedent

passengers, and their choice of forum is therefore afforded deference under Piper

Aircraft. See Piper Aircraft Co., 454 U.S. at 255. However, it is not readily apparent

that either Smith or Gaspard had any pre-accident connection to the decedents, and the

42 possibility that they were selected solely for purposes of this litigation cases doubt on

the suggestion that their choice of forum warrants significant deference. (See Gaspard

v. Malaysia Airlines Berhad, 16cv0419; Smith v. Malaysia Airlines Berhad, 16cv0439.)

See also Piper Aircraft Co., 454 U.S. at 239 (noting that personal representative “was a

legal secretary to the attorney who filed this lawsuit” and did “not know any of the

decedents or their survivors”). Plaintiff Gaspard represents, among others, a family of

three decedents, Rui Wang (who was employed by an American company and the

provider of the family), Weiwei Jiao, and Shuling Dai (collectively, the “Wang

Decedents”). (See Gaspard Compl., ECF No. 1, ¶¶ 3–7; Podhurst FNC Opp’n at 33.)

Plaintiff Smith represents, among others, Nicole and Leo Meng, minor children who

were United States citizens by birth and who resided with their parents in China. (See

Smith Compl., ECF No. 1, ¶¶ 39–42.) Smith also represents Meng Zhang, a Chinese

citizen who held a United States green card, and who was residing in China with her

new husband when she flew aboard Flight MH370. (See id.; see Motley Rice Montreal

Convention Opp’n at 6.) 24

Only one other Montreal Convention plaintiff has any connection to the United

States: Thomas Wood, who is a United States citizen and the personal representative of

his brother, Flight MH370 decedent Philip Wood, who was also a United States citizen.

(See Wood v. Malaysia Airlines Berhad, 16-cv-0053.) This Court will afford Thomas

Wood’s choice of forum the highest degree of deference. See Piper Aircraft Co., 454

24 The Meng children and Zhang are all Motley Rice plaintiffs, and their counsel filed complaints on their behalf in three separate districts. Those complaints are the subject of a motion for leave to file a consolidated amended complaint (see Pls.’ Mot. for Leave to File Consolidated Compl., ECF No. 24), which is yet another motion that is mooted by the Court’s instant decision. For the purpose of the forum non conveniens analysis, this Court has focused on Smith v. Malaysia Airlines Berhad, 16cv0439, the complaint that contains the most allegations regarding connections to the United States.

43 U.S. at 255. Decedent Wood worked for IBM and resided in Texas until late 2010/early

2011, when he moved to China for a three-year international assignment, following his

separation from his wife. (See Pls.’ Resp. to Malaysia Airlines’ Motion to Dismiss for

Lack of Subject Matter Jurisdiction, ECF No. 63, at 40.) While in China, Wood began a

romantic relationship, and thereafter moved to Malaysia when he accepted a two-year

assignment with IBM-Malaysia in Kuala Lumpur. This assignment would have ended

in February of 2016 (and could have been renewed for additional terms). (See id. at 21

n.37, 40.)

Notably, the fact that all of the decedents were living abroad (i.e., not in the

United States) at the time of their deaths is an additional consideration to be taken into

account when determining what weight to give to the United States connections that

Plaintiffs have asserted in these cases. See Varnelo v. Eastwind Transp., Ltd., No. 02-

cv-2084, 2003 WL 230741, at *12 (S.D.N.Y. Feb. 3, 2003) (noting the choice of forum

of “an expatriate U.S. citizen living abroad” is afforded a “diminished degree of

deference”). As the Second Circuit has explained, United States residence supports a

plaintiff’s choice to litigate in the United States “not because of chauvinism or bias in

favor of U.S. residents” but “rather because the greater the plaintiff’s ties to the

plaintiff’s chosen forum, the more likely it is that the plaintiff would be inconvenienced

by a requirement to bring the claim in a foreign jurisdiction.” Wiwa v. Royal Dutch

Petroleum Co., 226 F.3d 88, 102 (2d Cir. 2000). Alternatively, where a plaintiff (or the

decedent whom that plaintiff represents) is (or was) located overseas, the inconvenience

of having to litigate issues pertaining to damages and other matters in a non-U.S. forum

is somewhat lessened.

44 With the relative degrees of deference that must be afforded to these U.S.-

connected plaintiffs and/or decedents in mind, this Court has undertaken to determine

whether the balance of the public and private interests discussed above shifts. With

respect to the Wang Decedents, the United States’ interest in these claims is still

minimal, as the sole connection to this country (other than the citizenship of the

personal representative) is the fact that the Wang Decedents’ tickets were purchased

through a US-based online travel agent. (See Gaspard Compl. ¶ 18(g).) Likewise, the

United States has a relatively minor interest in claims associated with the death of

Zhang, because although she was a United States green card holder, she had been

residing in China with her new husband in the years prior to her death. (See Resp. to

MAS’s and MAB’s Interrogs. for Passenger Meng Zhang, at Nos. 3–12, Ex. 51 to

Montreal Convention Mem., ECF No. 38-52.) By contrast, the United States interest in

the claims related to the Meng children and Decedent Wood is substantial, because

these decedents are citizens of the United States. See Air France, 760 F. Supp. 2d at

847 (acknowledging “the importance of making courts in this country available to

American citizens”).

In Air France, the court considered whether or not to dismiss on forum non

conveniens grounds Montreal Convention claims that had been brought by U.S.-citizen

plaintiffs involving U.S.-citizen decedents, see Air France, 760 F. Supp. 2d 832, and

was unmoved by the suggestion that the citizenship status of the small number of

represented parties was sufficient to sway the analysis toward maintaining the lawsuits

in the United States. The Air France litigation arose from the crash over the Atlantic

Ocean of an Air France flight that had “left Brazil for France carrying a plurality of

45 French citizens and just two Americans living abroad at the time of the crash[,]” and the

Air France plaintiffs had sued the American companies that manufactured component

parts of the aircraft, among others, in United States courts. Id. at 845. In the context of

its forum non conveniens analysis, the court specifically found that, while “the

American interest here, ensuring the quality of component parts on aircraft and

protecting the rights of two American citizens, is real and legitimate[,]” it was “less

significant than the French interest.” Id. (emphasis added).

So it is here. All told, the Montreal Convention cases in this MDL involve only

six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either

plaintiffs or decedents. Among the hundreds of passengers on that flight, only three

were citizens of the United States (see Part IV.A.2.a., supra), and while the United

States undoubtedly has a strong public interest in the claims involving their deaths, its

interest pales in comparison to Malaysia’s interest in litigating these claims.

Malaysia’s public interest includes not only an interest in the untimely deaths of the

Malaysian pilot and crew, but also an interest in determining precisely what happened

to Flight MH370, given that a Malaysian airline owned, operated, and maintained the

aircraft; the flight took off from an airport in Malaysia for a destination outside the

United States; and it disappeared from radar when Malaysian air traffic controllers were

handing off the flight. And Malaysian authorities made substantial investments of time

and resources in the wake of this disaster: Malaysia conducted extensive civil and

criminal investigations, and changes in Malaysian law led to the creation of a new

national Malaysian airline. It is Malaysia’s strong interest in the events that give rise to

the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding

46 the presence of the few Americans onboard Flight MH370. Thus, just as the Air France

court found that France had a greater public interest in the Montreal Convention claims

concerning U.S. plaintiffs and decedents than the United States did, so too does this

Court find that, on balance and comparatively speaking, Malaysia has a greater public

interest in the instant Montreal Convention claims, even taking into account the United

States citizenship of plaintiffs Wood, Smith, and Gaspard, and of Philip Wood and the

Meng children.

In addition to this public interest, this Court must also consider the private

interests that, as noted above, implicate the practicality of litigating a particular matter

in one forum or another. See Am. Dredging Co., 510 U.S. at 448 (requiring the court to

consider, among other things, access to sources of proof, enforceability of judgment,

and the location of relevant evidence and witnesses). When considering the Montreal

Convention claims of plaintiffs and decedents with connections to the United States, the

most substantial difference on the private interest front could be the location of, and

access to, evidence and witnesses regarding damages. However, no such differences

exist with respect to the Meng children who, while United States citizens, spent almost

all of their lives with their parents in China. (See Resps. to MAS’s and MAB’s First

Set of Interrogs. for Bing Meng, at Nos. 2–3, Ex. 14 to FNC Mem., ECF No. 37-16.)

Zhang and the Wang Decedents are on somewhat different footing: Zhang had some

employment history in the United States and allegedly intended to return there, even

though her most recent work history appears to have been in China (see Motley Rice

Montreal Convention Opp’n at 6), and Rui Wang’s wages from a U.S.-based employer

supported the Wang Decedents (See Podhurst FNC Opp’n at 33). Likewise, evidence

47 regarding damages in regard to Decedent Wood’s estate and his heirs will likely be

located in the United States, given his United States citizenship and family connections,

and his employment with IBM. (See Podhurst FNC Opp’n at 32–33.)

Nevertheless, as discussed in Part IV.A.2.b., supra, the relevant evidence in this

case extends beyond damages and into the realm of causation. And as far as this Court

can tell, a substantial amount of this causation evidence is located outside of the United

States, including documentary items such as cargo records, personnel files, airline

maintenance records, manuals, air traffic control recordings, video recordings, and bank

records, as well as witnesses, such as crew family members, air traffic controllers,

cargo shippers, and maintenance technicians. See Pain, 637 F.2d at 786–87. Cf. In re

W. Caribbean Crew Members, 632 F. Supp. 2d 1193, 1201–03 (S.D. Fla. 2009)

(denying forum non conveniens motion where plane was located in United States for 19

years before crash, and relevant maintenance records were therefore located in the

United States). As explained, significant practical problems with gathering such

evidence could arise in the context of both discovery and trial, even taking into account

that some of the damages evidence would be located in the United States with respect to

these claims. See Tazoe, 631 F.3d at 1335 (finding that district court did not abuse its

discretion in dismissing claims arising from death of an American citizen in a plane

crash that occurred in Brazil where the defendant manufacturers’ “inability to compel

third-party witnesses or the production of documents from those witnesses, and the

inability to implead potentially liable third-parties, is both unusually extreme and

materially unjust”). Indeed, even where claims involving United States parties are

involved, courts considering forum non conveniens motions regularly find that

48 “difficulties in obtaining testimony and evidence located in foreign jurisdictions is a

strong factor favoring forum non conveniens dismissal.” Torreblanca de Aguilar, 806

F. Supp. at 144; see, also, e.g., Clerides, 534 F.3d at 629–30; Lleras, 354 F. App’x at

587.

To summarize, after considering the availability and adequacy of Malaysia as an

alternative forum for ligating Plaintiffs’ Montreal Convention claims, balancing the

relative public interests of Malaysia and the United States in resolving these claims, and

weighing the private interests that inform whether litigating in Malaysia would be

substantially more convenient than in the United States, this Court has determined that

the substantial and overriding connections to Malaysia outweigh the connections these

claims have to the United States, such that forum non conveniens dismissal is warranted

here.

B. On Balance, Malaysia Is A More Convenient Forum Than The United States For Litigating Plaintiffs’ Wrongful Death And Products Liability Claims Against Boeing

Thirty-five of the cases currently pending in this MDL assert wrongful death and

products liability claims against Boeing. (See Notes 14, 16–17, supra (listing 32

Podhurst products liability cases and three Motley Rice products liability cases).)

Podhurst and Motley Rice have filed these cases on behalf of various plaintiffs. Five of

the products liability plaintiffs (Wood, Gaspard, Li Li, Smith, and Keith) are United

States citizens, as are three of the various decedents these plaintiffs represent (Philip

Wood, Nicole Meng, and Leo Meng). One products liability plaintiff resides in the

United States (Yang Chen). 25 In addition, one of the decedents represented in the

25 See Chen v. The Boeing Co., 16cv1165.

49 products liability cases (Meng Zhang) held a United States green card.

While the public and private considerations with respect to these claims differ

from those involved with the Montreal Convention claims, this Court reaches the same

conclusion regarding the forum non conveniens analysis, as explained below. Once

again, the Court agrees with Boeing that these claims must be dismissed, because, on

balance and in light of the relevant factors, litigation of these claims in the United

States will be less convenient than in Malaysia.

1. Malaysia Is An Available And Adequate Forum For Plaintiffs’ Wrongful Death And Products Liability Claims

Just as with Plaintiffs’ Montreal Convention claims, this Court finds that

Malaysia is an available and adequate alternative forum for litigation of Plaintiffs’

wrongful death and products liability claims against Boeing. See Giro, 2011 WL

2183171, at *7; Simcox, 152 F.R.D. at 700; Jayaraman, 1991 WL 61071, at *4.

Plaintiffs do not contend that such legal claims are unavailable in Malaysian courts. Cf.

Domanus v. Lewicki, 645 F. Supp. 2d 697, 702 n.2 (N.D. Ill. 2009) (finding that Poland

was not an adequate alternative forum where “Polish law does not recognize many of

the causes of action asserted, including shareholder derivative claims”). And Boeing

has consented to being subjected to the jurisdiction of Malaysia’s courts as a condition

of the forum non conveniens dismissal of this matter. (See FNC Mem. at 22 & n.5.)

Boeing has further agreed to toll the statute of limitations with respect to any such

claims for 120 days (id.), and it is well established that defendant concessions of this

type undermine the argument that a foreign forum is not available and/or is inadequate

to litigate claims against the agreeing party. See, e.g., Piper Aircraft Co., 454 U.S. at

254 n.22; Pain, 637 F.2d at 785.

50 Once again, the Podhurst Plaintiffs do not dispute that Malaysia is an available

and adequate forum for the products liability claims that they seek to litigate. (See

Podhurst FNC Opp’n at 20 n.30.) The Motley Rice Plaintiffs object to dismissal in

favor of Malaysia, on the grounds that Boeing has not specifically agreed to “participate

in U.S.-style discovery” in that jurisdiction, and because the other defendants in this

matter have not provided assurances about participating in litigation in Malaysia.

(Motley Rice FNC Opp’n at 17.) But Motley Rice has not pointed to any particular

prejudicial deficiencies in Malaysia’s own fact-finding process that would indicate the

inadequacy of such proceedings such that a concession in this regard is needed.

Moreover, and in any event, the fact that the United States may have a more robust

discovery process than that of another country is not sufficient to establish that the

other forum is unavailable or inadequate for forum non conveniens purposes. See, e.g.,

FieldTurf USA Inc. v. TenCate Thiolon Middle E., LLC, No. 11-cv-50, 2011 WL

13234176, at *5 (N.D. Ga. Aug. 8, 2011) (holding that Dubai was an adequate forum

even though its law “does not provide for oral testimony, full discovery, or independent

experts”).

Courts have long credited defendants’ representations that they will submit to the

jurisdiction of a foreign forum for the purpose of forum non conveniens analysis,

without extensive evaluation of whether the procedural rules that govern the course of

litigation in the other forum are comparable to those applied in federal courts in the

United States. See, e.g., Melgares v. Sikorsky Aircraft Corp., 613 F. Supp. 2d 231, 246

(D. Conn. 2009); Jose v. M/V Fir Grove, 801 F. Supp. 349, 352 (D. Or. 1991). And,

here, Boeing has expressly represented that it will “agree to consent to jurisdiction in

51 Malaysia as a condition to dismissal[,]” (FNC Mem. at 22)—a representation that this

Court accepts, and deems sufficient with respect to the adequacy issue. See Fortaner,

504 F. App’x at 580 (noting that the requirement of an available and adequate

alternative forum “is ordinarily satisfied when the defendant agrees to submit to the

jurisdiction of the alternative forum” (citation omitted)); see also Azima, 305 F. Supp.

3d at 173 (rejecting defendant’s forum non conveniens argument where defendant was

“careful to avoid making any representation that it would necessarily consent to the

[alternative court’s] jurisdiction with respect to the [plaintiff’s] claims”).

2. The Balance Of The Public And Private Interests Weighs In Favor Of Dismissal Of These Claims On Convenience Grounds

a. Malaysia’s Public Interest In These Products Liability Claims Is Generally Greater Than That Of The United States

Boeing’s status as an aircraft manufacturing company that is founded and

headquartered in the United States necessarily means that the United States has a

significant public interest in any products liability claims that are brought against it.

See Lueck, 236 F.3d at 1147 (noting that “[t]he citizens of Arizona certainly have an

interest in the manufacturing of defective products by corporations located in their

forum”). But when a disaster like the one at issue here occurs, the key question as far

as the forum non conveniens balancing is concerned is whether the significant public

interest of the country that manufactured the aircraft outweighs the public interest of

the country that maintained and operated the ill-fated plane, and courts evaluating

similar products liability ligation have routinely considered the public interest of the

carrier’s country to be weighed most heavily in the context of their consideration of

forum non conveniens. See Schijndel v. Boeing Co., 263 F. App’x 555, 557 (9th Cir.

2008) (finding, in litigation arising from crash that occurred in Singapore, that the

52 district court did not abuse its discretion in granting forum non conveniens motion

based on finding that Singapore’s interest in litigation was greater, even though “the

aircraft and some components were manufactured in the United States”) (internal

quotation marks omitted); see also Clerides, 534 F.3d at 630 (recognizing the interest

of foreign countries “in regulating the use of allegedly defective products within their

borders”).

One can certainly conceive of a case in which the interest of the country where

the aircraft is manufactured might be considered superior to that of the country where

the aircraft was maintained and operated—say, in a case involving specific allegations

of fact pertaining to a single identified design or manufacturing defect that allegedly

caused the crash. See, e.g., D.F. by & through Amador v. Sikorsky Aircraft Corp., No.

13-cv-0331, 2017 WL 4922814, at *2 (S.D. Cal. Oct. 30, 2017) (alleging that an

individual’s death was caused by a known defect in a helicopter’s wiring). But, here,

Plaintiffs intend to proceed on a res ipsa theory of causation. (See, e.g., Compl., Keith

v. The Boeing Co., 17cv0518, ECF No. 1-3, ¶ 58 (alleging that “there are no reasonable

causes and no evidence of other causes for the disappearance of Flight MH370” beyond

a product defect); Compl., Wood v. Boeing Co., 16cv1149, ECF No. 1-3, ¶¶ 44–45

(alleging that because the safety investigation “has, to a reasonable degree of certainty,

foreclosed . . . pilot error, pilot suicide, terrorism or other foul play, maintenance error,

and weather” as the cause of the disappearance of Flight MH370, “a reasonable

inference that can be drawn from all of the available evidence is that the disappearance

of Flight MH370 was the result of one or more defects in the manufacture and/or design

of the airplane”); see also Motley Rice FNC Opp’n at 8 (noting that “[t]he Malaysia

53 investigation report found no problems with the pilots and other crew, training,

maintenance, security and cargo”).) And given that no one specific cause of the

disappearance of Flight MH370 has been claimed affirmatively, much less that a certain

known design or manufacturing defect precipitated this accident, this Court is hard

pressed to find that the interests of the United States in resolving the instant product-

defect claims against Boeing outweigh what is, at its core, a Malaysian tragedy, for the

reasons explained above.

Put another way, despite Plaintiffs’ general contention that (by process of

elimination) a mechanical problem with the U.S.-manufactured Boeing aircraft must

have caused the events that give rise to their claims, “a defendant’s manufacturing

activities within the U.S. do not tilt the public interest in favor of retaining jurisdiction

where overseas events are the primary catalyst for litigation initiated by foreign

plaintiffs.” In re Air Crash Near Peixoto De Azeveda, 574 F. Supp. 2d at 288; see also

Air France, 760 F. Supp. 2d at 845 (explaining that “the American interest here,

ensuring the quality of component parts on aircraft and protecting the rights of two

American citizens, is real and legitimate but less significant than the French interest”);

Clerides, 534 F.3d at 630 (noting that while the “United States has an interest in

regulating domestic companies, its interest is matched by the interests of Greece and

Cyprus in regulating the use of allegedly defective products within their borders”). The

same public interest factors discussed in Part IV.A.2.a., supra, that weigh in favor of

the dismissal of the MDL cases involving Montreal Convention claims are equally

applicable to the MDL cases that involve wrongful death and products liability claims,

because both sets of claims arise from the same underlying set of facts. And under the

54 circumstances presented here, there can be no dispute that Malaysia—which owned and

operated the aircraft at issue as part of its fleet of national carriers on the day of the

plane’s disappearance—has the primary public interest in litigating these products

liability claims.

b. There Are Compelling Private Interests On Both Sides, But Much Relevant Evidence Is Located Outside The United States, And The Prospect Of Impleading Raises Complex Immunity Considerations That Weigh In Favor Of Dismissal

The balancing of the private interests is a closer call in the products liability

context than it was with respect to the Montreal Convention claims. Plaintiffs are

asserting manufacturing and design products liability claims directly against Boeing—a

United States party—and it is undeniable that most of the evidence pertaining to these

claims is inside the United States. This would suggest that the private interest factor

concerning the location of the evidence points squarely in the direction of litigating the

claims in the United States; however, notably, Boeing has agreed to make all such

evidence available in Malaysia, and has also agreed to pay any judgment that the

Malaysian courts hand down. (See FNC Mm. at 22 n.5.)

Most importantly, “[e]ven if plaintiffs intend to base their case on the negligence

of defendants in the planning, design, manufacture, assembly, testing, service and

inspection of the aircraft and its engines, the evidence regarding the crash itself and the

actions of [the airline] are central to the tragedy.” Nolan, 762 F. Supp. at 683; see also

King v. Cessna Aircraft Co., 562 F.3d 1374, 1384 (11th Cir. 2009) (affirming forum non

conveniens dismissal where evidence regarding causation was located in the foreign

forum); Lueck, 236 F.3d at 1146 (affirming forum non conveniens dismissal where

foreign evidence relating to the cause of the accident was “essential”). This is

55 particularly so because Plaintiffs plan to proceed both on traditional negligence and

strict products liability theories, and on a res ipsa loquitur theory of causation, as noted

above. (See Mot. Hr’g Tr. at 38:4–8.) To succeed on the latter theory, Plaintiffs will

have to rule out other likely causes of the plane’s disappearance—e.g., weather,

terrorism, crew sabotage, and the like—and a substantial portion of the evidence

regarding possible alternative causes is located in Malaysia, as previously discussed.

(See Part IV.A.2.b., supra.) Similar evidence pertaining to the cause of the disaster is

likely located in Australia, the United Kingdom, and other non-U.S. countries. (See

Podhurst FNC Opp’n at 15 (noting that the pieces of wreckage that washed ashore were

taken to Australia, and that the Inmarsat satellite communication data is located in the

United Kingdom).) 26 Thus, when the nature of these claims and the scope of the related

litigation is carefully considered, the location-of-the-evidence aspect of the private

interest factor tips in favor of dismissing the instant claims.

It is also clear that other types of relevant evidence—including damages

evidence—is largely located outside of the United States. That is, while Plaintiffs’

counsel and their retained expert witnesses are, in fact, located inside the United States

(see Motley Rice FNC Opp’n at 10; Podhurst FNC Opp’n at 28), the vast majority of

the decedents and the plaintiffs are from places other than Malaysia, such as China and

Australia (see, e.g., Podhurst FNC Opp’n at 17–18). Therefore, evidence pertaining to

damages with respect to the products liability claims in these MDL cases is located

abroad—in locales other than the United States or Malaysia—and, indeed, it might well

be more convenient and less costly to bring these claims to trial in Malaysia, given that

26 Plaintiffs maintain that the satellite communication data “is also in the possession of Boeing in the United States” (Podhurst FNC Opp’n at 14), but have not cited any evidence regarding this contention.

56 the places where most of the damages evidence is likely to be are physically closer to

Malaysia than to the United States. See In re Air Crash at Madrid, Spain, on Aug. 20,

2008, 893 F. Supp. 2d at 1033 (noting that the costs of transporting witnesses to trial

would be lower if case were litigated in Spain). In other words, the dearth of U.S.-

based plaintiffs or decedents means that both Plaintiffs and Defendants will likely face

evidence-related burdens regardless of where the products liability cases are litigated.

See id.

An additional private interest factor related to the litigation of Plaintiffs’

products liability claims in the United States is the extent to which Boeing could, or

would, seek to implead all potential defendants. See Piper Aircraft Co., 454 U.S. at

259 (noting that the ability to implead the estate of the pilot was a factor that weighed

in favor of a forum non conveniens dismissal). Whether or not Boeing can implead

MAS or MAB as third party defendants raises questions of sovereign immunity, given

that both MAS and MAB appear to be agencies or instrumentalities of the Malaysian

government for purposes of the Foreign Sovereign Immunities Act. (See Plaintiffs’

Resp. to MAS’s Rule 12(b)(1) Mot. to Dismiss Under the Foreign Sovereign Immunities

Act, ECF No. 64, at 10 n.6 (conceding that MAS and MAB are agencies or

instrumentalities of the Malaysian government but opposing dismissal based on

sovereign immunity); see also FSIA Mem. at 12 (arguing that MAS and MAB are

presumptively immune from suit and that Plaintiffs have not established that any FSIA

exception applies).) And there appear to be other potentially sovereign defendants: the

plaintiffs in the Flight MH370-related cases that are pending in Malaysia have named

several Malaysian government entities as defendants, including the Department of Civil

57 Aviation, the Royal Malaysian Air Force, the Immigration Department of Malaysia, and

the Government of Malaysia, as well as certain individual Malaysian officials. (See

Singh Decl. ¶ 9.) Any effort to implead such defendants would substantially complicate

any litigation involving the wrongful death and products liability claims that are

pending against Boeing in the United States. See Kryvicky v. Scandinavian Airlines

Sys., 807 F.2d 514, 516 (6th Cir. 1986) (finding that district court did not abuse its

discretion in granting forum non conveniens dismissal where, among other things, “the

defendants could not implead Spanish aviation authorities or [foreign airline] in U.S.

courts”).

The potential of intractable immunity questions that might stymie Boeing’s

ability to implead other defendants raises the prospect of precisely the kind of

“oppressive and vexatious outcome that forum non conveniens dismissal is designed to

avoid”—namely, a manufacturer defendant that is “unable to seek indemnification in

the same action in which they are being sued by foreign [p]laintiffs[.]” Air France, 760

F. Supp. 2d at 847. And in the final analysis of the private interest factors at issue, it is

this circumstance that persuades this Court that, taken as a whole, the private interest

factors favor dismissal of these claims. See Piper Aircraft Co., 454 U.S. at 259 (noting

that “the inability to implead potential third-party defendants” is a factor that can weigh

in favor of a forum non conveniens dismissal); In re Air Crash Near Peixoto De

Azeveda, Brazil, on Sept. 29, 2006, 574 F. Supp. 2d at 289 (finding that the “lack of

jurisdiction in this forum over potentially liable parties” was an “important factor[]” in

favor of forum non conveniens dismissal).

58 c. Dismissal Is Warranted Even With Respect To The Cases With Concrete Connections To The United States

Finally, the Court has considered whether the fact that some of the plaintiffs and

decedents in these MDL products liability cases have concrete connections to the

United States impacts the forum non conveniens analysis, and for the following reasons,

it has determined that such ties do not demand a different result. Thus, even when the

products liability claims of U.S. plaintiffs and/or U.S. decedents are isolated and that

status is taken into account, the United States is still not a convenient forum for the

litigation of manufacturing claims against Boeing related to the Flight MH370 disaster.

The Wood lawsuit presents the closest call in this regard, given that there are

U.S. parties on both sides, and an American decedent, which suggests that much of the

relevant discovery involves evidence that is inside the United States. (See Wood v. The

Boeing Co., 16cv1149.) But as previously explained, given the tort theories on which

Plaintiffs are proceeding, evidence and witnesses pertaining to the aircraft, the crew,

the events preceding the disappearance, and the search will be indispensable to

litigating Plaintiffs’ claims. See Nolan, 762 F. Supp. at 683; King, 562 F.3d at 1384;

Lueck, 236 F.3d at 1146. This same evidence will likewise be necessary to resolve the

products liability claims that Plaintiff Li Li—a United States citizen residing in

China—and Plaintiff Yang Chen—a Chinese citizen residing in the United States—have

brought on behalf of their deceased parents, who were both Chinese citizens. (See Li v.

The Boeing Co., 16cv1128; Chen v. The Boeing Co., 16cv1165.) And just as with the

Montreal Convention claims, the United States’ strong public interest in securing a

legal remedy for its citizens—specifically, Decedent Wood and the Meng children—is

nonetheless overshadowed by Malaysia’s overwhelming interest in the resolution of

59 claims concerning this national disaster. See In re Air Crash Near Peixoto De Azeveda,

574 F. Supp. 2d at 288; Air France, 760 F. Supp. 2d at 845; Clerides, 534 F.3d at 630.

The handful of other cases that have concrete connections to the United States

concern attenuated relationships that do not give rise to a significant public or private

interest in having the claims litigated in the United States, for the reasons laid out

above, in Part IV.A.2.c. 27 The Court does give some deference to the plaintiff’s choice

of forum when the products liability and wrongful death claims are brought by, or on

behalf of, American citizens, just as with the Montreal Convention claims. But in this

Court’s view, even when Boeing is the defendant, the balance of the Piper factors

weighs against litigation of these claims in the United States. See, e.g., Fortaner, 504

F. App’x at 580–81 (affirming forum non conveniens dismissal of products liability

claims against Boeing); Nolan, 919 F.2d at 1069 (same).

V. CONCLUSION

At its core, this case is about the unexplained disappearance of a passenger plane

operated by Malaysia Airlines as part of its national air carrier fleet following its

departure from a Malaysian airport. The disappearance of Flight MH370 was the

subject of a years-long investigation by Malaysian authorities, and while a host of other

countries undeniably participated and undoubtedly have some interest in the legal

claims that have been made in the wake of this tragedy—including China, Australia,

27 Plaintiffs Keith and Richards are United States citizens, and thus their choice of forum is entitled to deference, but as with Plaintiffs Gaspard and Smith, it appears that they may have no pre-accident connections to the decedents they represent and may have been selected solely for purposes of this litigation. (See Part IV.A.2.c., supra.) See also Piper Aircraft Co., 454 U.S. at 239. Plaintiff Chen is a resident of the United States, but not a citizen, and Meng Zhang’s connection to the United States is predicated on her status as a green-card holder and her past work and residence in the United States. In the Gaspard case, the Wang Decedents’ connection is premised on Gaspard’s citizenship, and Rui Wang’s employment with an American company, even though he lived and worked overseas.

60 India, and the United States—these other points of connection do not alter the

fundamental and substantial nexus between this tragic incident and the country of

Malaysia. In consideration of all of the relevant forum non conveniens factors, this

Court has concluded that litigation in the United States related to the Flight MH370

disaster is inconvenient, and that dismissal of the MDL cases in favor of Malaysia is

warranted. Thus, as reflected in the attached Order and subject to the conditions laid

out therein, Defendants’ joint motion for forum non conveniens dismissal is

GRANTED, and the cases in this MDL are DISMISSED without prejudice. Moreover,

Defendants’ other threshold motions are DENIED as moot.

DATE: November 21, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge