however, is predicated on a conditional promise: if the Court grants the
motion and dismisses the French Actions, and those Actions are
subsequently filed in France, Defendants will agree, with respect to the
French Actions: (1) to consent to the jurisdiction of the courts of
France for trial; (2) not to contest liability for full compensatory
damages in the courts of France to any plaintiff or beneficiary who,
under the applicable law, suffered a compensable injury as a proximate
result of the accident and promptly to try such damages if the claim
cannot be settled; (3) to promptly pay any damages awarded by the courts
of France, subject to any right to appeal in that forum; and (4) to treat
as tolled any statute of limitations under French law for any plaintiff
or named beneficiary in a pending U.S. Flight 800 action, provided that
proceedings are commenced in France within 120 days of forum non
conveniens dismissal. The crux of Defendants' position is that agreeing
not to contest liability removes the major justification for trial in the
United States; since damages evidence as to the French Actions is most
likely to be located in France, it would be proper to grant the motion to
Defendants' motion is a well-crafted attempt to avoid some of the more
obvious legal barriers to a motion to dismiss on forum non conveniens
grounds. Nevertheless, for the reasons set forth below, the motion will
I. The Doctrine of Forum Non Conveniens
The doctrine of forum non conveniens leaves much to the discretion of
the court to which plaintiff resorts. Gilbert, 330 U.S. at 508, 67 S.Ct.
839. "[D]ismissal will ordinarily be appropriate where trial in the
plaintiffs chosen forum imposes a heavy burden on the defendant or the
court, and where the plaintiff is unable to offer any specific reasons of
convenience supporting his choice." Piper Aircraft Co. v. Reyno,
454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
There are two steps to resolving a forum non conveniens motion. See
Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996). First,
the court must determine whether an adequate alternative forum is
available. See id.; Blanco v. Banco Indus. de Venez., S.A., 997 F.2d 974,
981 (2d Cir. 1993). If an adequate alternative forum is available, the
court must then consider the relevant "private" and "public" interest
factors and determine whether the balance of convenience tilts strongly
in favor of trial in the foreign forum. R. Maganlal & Co. v. M.G.
Chem., Co., 942 F.2d 164, 167 (2d Cir. 1991).
Before proceeding to the merits, however, it is necessary to dispose of
Plaintiffs' two threshold objections that the motion should be barred for
(1) untimeliness, and (2) lack of evidentiary support.
II. The Motion Is Not Time-Barred
A late forum non conveniens motion is disfavored "because a defendant's
dilatoriness promotes and allows the very incurrence of costs and
inconvenience the doctrine is meant to relieve." In re Air Crash Disaster
Near New Orleans, La., on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir.
1987). vacated on other grounds, sub nom, Pan American World Airways,
Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). As
Plaintiffs point out, this motion was made two-and-one-half years after
the first filed case and two years after the first hearing before this
Court. The parties and this Court have invested significant time and
resources in this action to date. Substantial liability discovery and
investigation have been completed, damages documents have been
collected, and witnesses have been interviewed.
However, costs and inconvenience, although not specifically mentioned
among the Gilbert public and private interest
factors, are generally considered within the context of those factors.
See Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 613-14 (3d
Cir. 1991). Considering costs and inconvenience as a threshold matter,
therefore, would make redundant any subsequent consideration under the
private and public interest factors, and perhaps give these aspects
excessive weight in the analysis. Indeed, in New Orleans — the
primary case upon which Plaintiffs rely for their untimeliness objection
— the court stated that "the timeliness of the motion is one of the
private `practical problems' to be considered under the [Gilbert] and
Reyno principles." New Orleans, 821 F.2d at 1165 n. 30. Timeliness can
also impact on the public interest factor of court congestion and
Therefore, to the extent Plaintiffs have incurred costs and
inconveniences which weigh in favor of denying the instant motion, such
costs and inconveniences will be considered in Part V below, in the
context of the private and public interest factors.
III. The Motion Is Not Barred for Lack of Evidentiary Support
Plaintiffs also assert that Defendants' motion must be rejected as a
matter of law because it is supported only by the argument of counsel and
fails to present necessary proof. However, the holdings of the cases
cited by Plaintiffs do not support such an assertion. See, e.g., Lacey
v. Cessna Aircraft Co., 862 F.2d 38, 44 (3d Cir. 1988); La Seguridad v.
Transytur Line, 707 F.2d 1304, 1308-09 (11th Cir. 1983); Recumar, Inc.
v. KLM Royal Dutch Airlines, 608 F. Supp. 795, 799 (S.D.N.Y. 1985). These
cases stand generally for the proposition that "the level of detail a
moving defendant must submit depends upon the particular facts of the
case." Lacey, 862 F.2d at 44 (citing New Orleans, 821 F.2d at 1165 n.
28).*fn2 As with the untimeliness objection, the strength of the
evidence submitted by a defendant in a forum non conveniens motion must
be weighed in its proper context — that is to say, in considering
whether an adequate alternative forum is available and whether the
private and public interest factors weigh for or against dismissal.
Where, as here, Defendants are willing not to contest liability, the
level of detail needed to sustain the motion may be reduced.
IV. France Is An Adequate Alternative Forum
"In all cases in which the doctrine of forum non conveniens comes into
play, it presupposes at least two forums in which the defendant is
amenable to process; the doctrine furnishes criteria for choice between
them." Gilbert, 330 U.S. at 506-07, 67 S.Ct. 839. Gilbert's determination
has been interpreted to mean that an adequate alternative forum must
exist. See Reyno, 454 U.S. at 254 n. 22, 102 S.Ct. 252. Thus, the parties
must be subject to personal jurisdiction and service of process in the
alternative forum. See Gilbert, 330 U.S. at 507, 67 S.Ct. 839. As to
adequacy, the possibility that the alternative forum might result in an
unfavorable change in the law for the plaintiff is not accorded
substantial weight. See Reyno, 454 U.S. at 252 n. 19, 102 S.Ct. 252.
However, "where the remedy offered by the other forum is clearly
unsatisfactory, the other forum may not be an adequate alternative." Id.
at 254 n. 22, 102 S.Ct. 252.
As indicated above, Defendants have agreed to submit to suit in France
if this Court grants this motion. Acceptance by the French courts of
Defendants' submission to suit can also be made a condition of
dismissal. Conditional dismissals have frequently been used by courts to
ensure that an alternative forum will exist. See, e.g. Calavo Growers v.
Belgiun, 632 F.2d 963, 968 (2d Cir. 1980). An alternative forum is thus
presumptively available. Moreover. Defendants point to the pendency of
actions in France against Boeing and TWA as evidence of the ability of
French courts to exercise jurisdiction over Defendants.
As for the adequacy of the French forum several courts have previously
found that French tort law provides an alternative to U.S. law sufficient
to satisfy the standard of Reyno. See, e.g., Magnin v. Teledyne
Continental Motors, 91 F.3d 1424, 1429 (11th Cir. 1996) Mediterranean
Golf, Inc. v. Hirsh, 783 F. Supp. 835, 841 n. 6 (D.N.J. 1991) ("French
law has a very broad statutory basis for tort liability").*fn3
Plaintiffs object that France is an inadequate forum on the grounds
that (1) the Warsaw Convention (the Convention) bars jurisdiction in
France because (a) Defendants have not shown that the French Actions
could have been brought in France, and (b) forum non conveniens is not
available when Plaintiffs have exercised their option to sue under
Article 28 of the Convention; and (2) Defendants have failed to establish
that a French court will accept a waiver of the statute of limitations of
Article 29 of the Convention.
Article 28(1) of the Convention reads:
An action for damages must be brought, at the option
of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the
domicile of the carrier or of his principal place of
business, or where he has a place of business through
which the contract has been made, or before the court
at the place of destination.
Convention for the Unification of Certain Rules Relating to International
Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876
(1934), reprinted in 49 U.S.C.A. § 40105 note, at 41 (1997).