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DISPENZA v. EASTERN AIR LINES

February 12, 1981

Joseph DISPENZA, Individually and as Administrator of the Estates of Connie Dispenza and Tina Dispenza and as Natural Tutor of his minor child Sandy Dispenza, Plaintiff,
v.
EASTERN AIR LINES, INC., The Boeing Company, Collins Radio, Inc. and United States Aviation Underwriters, Inc. and/or United States Aviation Insurance Group, Inc., Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. Peter Joseph CALDARERA, Jr., Individually and as Tutor of and on behalf of the Minor Christopher Moore Caldarera, Plaintiff, v. EASTERN AIR LINES, INC., The Boeing Company, and United States of America, Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. Edgar A.G. BRIGHT, Jr., Individually and as Executor of the Successions of Mrs. Ethel Fox Bright and Edgar A.G. Bright, Plaintiff, v. EASTERN AIR LINES, INC., Eugene S. Eberhart, as Administrator of the Estate of W.S. Eberhart, Mrs. Charlotte E. Kleven, as Administratrix of the Estate of J.W. Kleven, The Boeing Company and United States Aviation Underwriters, Inc., Managers/United States Aircraft Insurance Group, Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. Maunsel W. HICKEY, Individually and as Executor of the Succession of Mrs. Jane Bright Hickey, Harold H. White, III, and Michael B. White, Plaintiffs, v. EASTERN AIR LINES, INC., Eugene S. Eberhart, as Administrator of the Estate of W.S. Eberhart, Mrs. Charlotte E. Kleven, as Administratrix of the Estate of J.W. Kleven, The Boeing Company, United States Aviation Underwriters, Inc., Managers/United States Aircraft Insurance Group, and United States of America, Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. Harold H. STREAM, II, and Matilda Gray Stream, Plaintiffs, v. EASTERN AIR LINES, INC., The Boeing Company, and United States of America, Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. Nell B. NOLAND, Iveson B. Noland, III, Daniel W. Noland and John B. Noland, Individually and as Executor of Succession of Iveson B. Noland, Plaintiffs, v. EASTERN AIR LINES, INC., The Boeing Company, United States Aviation Underwriters, Inc., Managers/United States Aircraft Insurance Group, and United States of America, Defendants. EASTERN AIR LINES, INC., Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.



The opinion of the court was delivered by: BRAMWELL

Upon its return to this Court from its interlocutory journey to the United States Court of Appeals for the Second Circuit, the multidistrict litigation that arose from the tragic crash of Eastern Air Lines flight # 66 on June 24, 1975 once again has become the source of numerous motions and cross motions. The activity presently before this Court evolves from motions made by the instant plaintiffs (hereinafter referred to as "the Louisiana plaintiffs") who originally commenced their actions in Louisiana district courts. *fn1"

Through the combined efforts of the Judicial Panel on Multidistrict Litigation, see In re Air Crash at John F. Kennedy Int'l Airport on June 24, 1975, 407 F. Supp. 244 (Jud.Pan.Mult.Lit.1976), and this Court, these cases previously were transferred to this Court for a consolidated trial on the issue of liability. *fn2" At this trial, a jury found Eastern liable for the crash of flight # 66. *fn3" This finding was affirmed on appeal. In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 635 F.2d 67, at 77 (2d Cir. 1980). With the instant motions, the Louisiana plaintiffs urge that all further proceedings in their cases be conducted in their original forums.

 Specifically, the plaintiffs contend that an order of this Court dated December 15, 1977, *fn4" and 28 U.S.C. § 1404(a) (1976) should be the guide for the disposition of their transfer motions. This assertion is correct. As this Court noted in In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 479 F. Supp. 1118 (E.D.N.Y.1978), the December 15, 1977 entry, which expressed this Court's willingness to entertain requests by Louisiana plaintiffs for return of their actions to Louisiana for damage trials, *fn5" implicitly reflected this Court's intention to implement 28 U.S.C. § 1404(a) (1976) as the guide for such motions. See 479 F. Supp. at 1121-23.

 
28 U.S.C. § 1404(a) (1976) provides:
 
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

 In light of this statute, it is noteworthy in the cases at bar that all plaintiffs involved reside in the districts to which they seek a transfer, *fn6" and that the business records of the plaintiffs and their decedents are located in Louisiana. *fn7" Similarly, most damage witnesses reside in Louisiana. *fn8"

 In accordance with 28 U.S.C. § 1404(a) (1976), it also is abundantly clear that the actions of the Louisiana plaintiffs are cases that "might have been brought" in a Louisiana forum. In fact, the requested transferee forums represent the plaintiffs' original choice of forum. *fn9" With respect to defendant Eastern, a basis for in personam jurisdiction and venue exists in Louisiana, since Eastern does business in Louisiana and has been served with process there. *fn10" Accordingly, this Court concludes that the convenience of parties and witnesses and the interests of justice command that the cases at bar be transferred to the districts in Louisiana in which they were commenced.

 Indeed, in December of 1978, this Court issued a similar ruling in the Hickey, Bright, Noland, Caldarera and Stream cases. 479 F. Supp. 1121-23. These rulings were stayed, however, in anticipation of Eastern's multifaceted interlocutory appeals. All of those appeals now have been decided. And, in one such decision, the Second Circuit expressed its view that the transfers to Louisiana granted by this Court "would be permissible, as well as desirable, when the only issue remaining to be resolved concerns the amount of awardable damages." Winbourne v. Eastern Air Lines, Inc., 632 F.2d 219, 227 (2d Cir. 1980). *fn11"

 Defendant Eastern has seized upon the final clause of this expression of the appellate court, and has transformed it into the cornerstone of its opposition to the plaintiffs' motions. Thus, Eastern has asked this Court to observe that issues regarding the capacity to sue of the Louisiana plaintiffs or their representatives, the status of the cases sought to be transferred that are covered by the Warsaw Convention and the Montreal Agreement and the liability of Eastern's alleged insurers remain unresolved in the cases in which motions to transfer have been filed. Characterizing these issues as relating to "liability" and, therefore, within the sole province of this Court, Eastern contends that a transfer of the cases in which these issues remain outstanding would be improper at this time.

 1. Capacity to Sue

 In all of the cases sought to be transferred, Eastern has cross moved to dismiss the claims brought by the plaintiffs in their individual capacity. This request is predicated under New York's wrongful death law. *fn12" In the alternative, Eastern's cross motions seek a dismissal of claims brought by Louisiana plaintiffs in their capacity as personal representatives of the decedents under the appropriate provisions of Louisiana law. *fn13" Implicit in such cross motions is Eastern's request for a determination by this Court of the law governing the capacity to sue issue prior to any transfer of the actions of the Louisiana plaintiffs.

 With respect to capacity to sue, however, this Court is of the belief that the principles of convenience underlying 28 U.S.C. § 1404(a) (1976) would best be furthered if, in the cases sought to be transferred, determination of the capacity to sue issue, as well as the issue of damages, were made by a fact finder sitting in the judicial districts in Louisiana where the actions initially were brought. Indeed, all of the parties and proffered representatives subject to Eastern's capacity to sue attack are Louisiana residents *fn14" , and all records relevant to such attacks are situated in Louisiana. *fn15" Thus, as Mr. Sincoff stated at the January 16, 1981 status conference in this multidistrict litigation:

 
in the cases where there is a defense of capacity to sue (the plaintiffs), at the time of trial, would put the representative of the estate on the stand to testify on the issue of capacity to sue during the damage trial, and that would be the proof (the plaintiffs) would be submitting for the Court to make a decision of law as to whether that individual had capacity to sue. But it would occur during the damage trial.

 Transcript of January 16, 1981 conference in MDL 227 at 13. At the January 16 conference, this Court intimated that it approved of such a ...


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