Sunday, August 25, 2013

11th Circuit Upholds "Forum Non-Conveniens" Dismissal

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In the 2009 case of Kings, et al. v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009), the United States Court of Appeals for the 11th Judicial Circuit upheld the lower court's order dismissal of suits by European plaintiffs against an American aircraft company in the case on the basis of forum non conveniens  The action arose out of a plan crash in Milan, Italy between a German and a Scandinavian aircraft. The lower court dismissed the suits of the European plaintiffs but not that of the American plaintiff (the suits were consolidated for administrative purposes only) on the basis of forum non conveniens.

The Court of Appeals noted that dismissal of the suits of the European plaintiffs on the basis of forum non conveniens is a final, appealable order. The Court noted though that it did not have jurisdiction to review the denial of the defendant's motion to dismiss as to the American plaintiff on the basis of forum non conveniens as it is not a final order. Furthermore, the Court did not find a basis to exercise "pendent appellate jurisdiction" as to the order of denial of dismissal of the American plaintiff. Pendent appellate jurisdiction is present when a nonappealable decision is "inextricably intertwined" with an appealable decision or when review of nonappealable decision is necessary to ensure meaningful review of the appealable decision.

Citing Leon v. Million Air., Inc. 251 F.3d 1305, (11th Cir. 2001), the Court stated that the following three factors must be demonstrated for the dismissal of a case on grounds of forum non conveniens: 1. an adequate alternative forum is available (burden of proof on the defendant), 2. the public and private factors weigh in favor of dismissal, and 3. the plaintiff can reinstate their suit in the alternative forum without undue convenience or prejudice. The Court listed the private and public interest factors to be considered as set forth by the U.S. Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

The Court found that the first factor was met as Italy is available as an adequate alternative forum. The Court noted that the defendant was willing to submit to jurisdiction in Italy and was amenable to process in Italy. The Court also found that Italian courts have addressed similar cases and that Italian law provides the rule of decisions.

The Court also found that the public and private factors weighed in favor of dismissal. The Court stated that although a United States citizens, resident, or corporation is entitled to a presumption in favor of his choice of forum, a foreign plaintiff's choice of forum receives less deference. The Court noted that the lesser deference give to the European plaintiffs' choice of forum was consistent with treaty obligations of the United States, such as Treaties of Friendship, Commerce, and Navigation," which accord "no less favorable" access to U.S. court than an American national to redress injuries caused by American actor. The Court also found other relevant private factors present supporting finding of forum non convenience including the ease of access to sources of proof, availability of compulsory process for attendance, and other practicable problems making the trial easy, expeditious and inexpensive.

The Court stated that the district court found that the public interest factors also weighed in favor of dismissal of the European plaintiffs' case. Public interest factors included Italy's strong interest in hearing the case as the event occurred in Italy, the heavy administrative burdens placed on the court in evaluating liability and damages as to each European plaintiff, and the need to apply Italian law to the numerous issues in the case.

The Court modified the dismissal order so as to require the defendant to submit to the jurisdiction of the Italian courts, to waive the statute of limitations, and to allow for the reinstatement of the case in the event that the Italian courts reject jurisdiction to entertain the case.