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October 12, 1999


The opinion of the court was delivered by: Sweet, District Judge.


Defendants The Boeing Company and Trans World Airlines, Inc. have moved, on the ground of forum non conveniens, to dismiss each action in this multidistrict litigation arising from the death of a French domiciliary (the "French Actions"). For the reasons set forth below, the motion is denied.

Prior Proceedings

This multidistrict litigation arises from the catastrophic destruction of TWA Flight 800 on July 17, 1996, shortly after its departure from John F. Kennedy International Airport in New York for a flight to Paris and Rome. This Court has previously summarized the factual background of the case in other opinions, familiarity with which is assumed. See In re Air Crash Off Long Island, 27 F. Supp.2d 431 (S.D.N.Y. 1998); In re Air Crash Off Long Island, Nos. 96 Civ. 7986 (RWS) and MDL 1161 (RWS), 1998 WL 292333 (S.D.N.Y. June 2, 1998).

The largest number of foreign domiciliaries on Flight 800 were from France. The families and other beneficiaries of forty-five French decedents have one or more unresolved actions pending before this Court.*fn1

Several proceedings connected with the incident are simultaneously taking place in France. France's Department of Treasury has paid death benefits to the French beneficiaries of two Flight 800 decedents who were French government employees: Dominique D'Humieres and Yvon Lamour. The Department of Treasury has filed an action against TWA in France to recoup these payments. The D'Humieres and Lamour beneficiaries have suits pending before this Court. Defendants also have notice of suits filed against TWA and Boeing in France by the Caisse Primaire d'Assurances Maladie ("CPAM") of seven French towns, to recoup social security-like benefits paid to the beneficiaries of four Flight 800 decedents: Guy Dupont, Alain Laforge, Jean-Pierre Hochart, and Rodolf Merieux.

The motion was filed on April 28, 1999. Opposition and reply papers were received through August 6, 1999, at which time the motion was deemed fully submitted.


As jurisdictional statutes are drawn with a "necessary generality," often giving plaintiffs more than one choice of forum, "the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). To thwart such mischief, the doctrine of forum non conveniens was developed, permitting a court to dismiss an action and transfer it to, or enable it to be re-filed in, a more convenient forum. See Canada Malting Co. v. Paterson S.S., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837 (1932).

At first blush, one might well wonder why Defendants would possibly move to dismiss a large number of actions in this litigation on forum non conveniens grounds. The accident occurred over United States territorial waters approximately eight nautical miles off the coast of New York State, all defendants are United States corporations, and most — if not all — of the evidence pertaining to liability is located in the United States. The motion, 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 dismiss.

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 be denied.

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 administration.

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 ...

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