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.
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
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
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
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 ...