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CALI v. EAST COAST AVIATION SERVICES LTD.
November 14, 2001
BRIAN J. CALI, INDIVIDUALLY AND AS SURVIVING SPOUSE AND AS EXECUTOR OF THE ESTATE OF DONNA BARBINI-CALI, DECEASED, AND FOR THE BENEFIT OF DECEDENT'S ESTATE AND DECEDENT'S SURVIVORS, ET AL., PLAINTIFFS,
EAST COAST AVIATION SERVICES., LTD. D/B/A EXECUTIVE AIRLINES; BAE SYSTEMS PLC.; BAE SYSTEMS REGIONAL AIRCRAFT, INC.; AND BAE SYSTEMS REGIONAL AIRCRAFT, LTD., DEFENDANTS.
The opinion of the court was delivered by: Glasser, District Judge.
Plaintiff Brian Cali and nine other plaintiffs bring eight (8)
separate diversity actions against East Coast Aviation Services,
Ltd. d/b/a/ Executive Airlines ("Executive Airlines"), BAE
Systems Plc ("BAE Systems"), BAE Systems Regional Aircraft,
Inc., and BAE Systems Regional Aircraft, Ltd., (hereinafter
referred to as the "BAE defendants"), alleging claims for their
decedents' wrongful deaths in an Executive Airlines plane crash
in Bear Township, Pennsylvania.*fn1 All of the seventeen
passengers aboard the plane, and the two pilots, died in the
crash. Eight (8) actions for the deaths of ten (10) passengers
have been filed in the Eastern District of New York ("EDNY"),
and seven (7) actions for the deaths of seven (7) passengers
have been filed in the Middle District of Pennsylvania ("MDPA").
Executive Airlines now moves to transfer venue the eight (8)
actions filed in this Court to the MDPA.
For the reasons that follow, the motion is granted.*fn2
On May 21, 2000, an Executive Airlines airplane crashed near
Wilkes-Barre/Scranton Airport in Pennsylvania. (See Brian J.
Cali Compl. ("Cali Compl.") ¶ 10.) The flight had been chartered
by Caesar's Hotel in Atlantic City, New Jersey and carried
seventeen (17) passengers, all of whom were Pennsylvania
residents. (See Daniel F. Hayes Affidavit in Support of Motion
to Transfer ("Hayes Aff.") ¶ 6.) The crash purportedly occurred
when the airplane lost power to both of its engines. (See Cali
Compl. ¶ 15.)
The airplane was a British Aerospace (now BAE Systems Plc)
Jetstream model 3100 twin-engine, registered as N16EJ, which was
manufactured in the United Kingdom by BAE Systems. (See Hayes
Aff. ¶ 5.) Defendants BAE Systems Plc and BAE Systems Regional
Aircraft, Ltd. are incorporated under the laws of England, and
defendant BAE Systems Regional Aircraft, Inc. is a Delaware
Corporation with its headquarters in Herndon, Virginia.
(Memorandum of Law in Support of Motion to Transfer ("Mem.") at
12-13.) Executive Airlines is an on-demand charter company, with
its headquarters located at Republic Airport, Farmingdale,
Suffolk County, within this district, and is incorporated under
the laws of New York State. (See Hayes ¶ 5.) The two pilots
flying the plane were Executive Airlines employees. (Id.)
The first three actions arising out of this plane crash were
filed against Executive Airlines only in the Court of Common
Please in Luzerne County, Pennsylvania on June 20, 2000
(hereinafter referred to as the "Fumanti actions"). (See Hayes
Aff. ¶¶ 10-11.) On July 21, 2000, the actions were removed to the
MDPA and consolidated thereafter. (Id. ¶ 11.) Upon stipulation
that removal was proper, District Judge A. Richard Caputo then
ordered the plaintiffs to file complaints by a certain date.
(Id.) Instead, the plaintiffs filed complaints in new actions
under the Court's original diversity jurisdiction on December 1,
2000 against both Executive Airlines and the BAE defendants.
(Id. ¶ 12.) Judge Caputo then entered an order
administratively closing the earlier removed actions, and
consolidating the three original jurisdiction actions. (Id. ¶
On November 20, 2000, the first cases were filed in the EDNY.
(Id. ¶ 15; Granito Aff. ¶ 12.) On or about April 4, 2001, the
plaintiffs in the Fumanti actions filed a motion before the
Judicial Panel on Multi-District Litigation ("JPMDL"),
requesting transfer of the actions filed in the EDNY to the MDPA
for pre-trial purposes only, pursuant to 28 U.S.C. § 1407. (See
Hayes Aff. ¶ 19; Motion to Transfer to Multi-District
Litigation, dated April 4, 2001, attached to Hayes Aff. as Ex.
D.) The unopposed motion was heard before the JPMDL on July 26,
2001. (See Hayes Aff. ¶ 19; Granito Aff. ¶ 14.) A decision on
that motion is pending.
The Cali plaintiffs and the Frantz plaintiffs raise similar
claims against Executive Airlines and the BAE Defendants for
wrongful death and survival damages based on negligence, and
against the BAE
Defendants for wrongful death and survival damages based on
strict products liability and breach of implied warranty of
fitness for intended use. (See Cali Compl. and Frantz Compl.)
Specifically, the plaintiffs assign legal responsibility to
Executive Airlines for, inter alia, the use, operation,
control, inspection, repair, maintenance, and servicing of the
aircraft that crashed on May 1, 2000, and to the BAE defendants
for the unsafe design, manufacture, sale, service and field
support of the subject aircraft, including the aircraft's fuel,
propeller and power plant systems. (See Cali Compl. ¶¶ 20-21,
29, 39-40; Frantz Compl. ¶¶ 16, 24, 37.)
Executive Airlines now moves to transfer these cases to the
MDPA pursuant to 28 U.S.C. § 1404(a). In support of transfer,
Executive Airlines argues that: (1) the MDPA is a district were
the actions could have been brought, as required by
28 U.S.C. § 1404(a), because the MDPA had personal jurisdiction over all
defendants at the time this action was commenced; (2) the MDPA
is presumptively the appropriate venue under the "first filed
rule"; (3) the MDPA is the more convenient district; and (4)
choice of law rules will likely lead to the application of
Pennsylvania law. The Cali and Frantz plaintiffs reject these
arguments on the grounds that Executive Airlines fails to
adequately challenge by "clear and convincing" evidence the
plaintiffs' chosen forum or that the actions could have been
originally filed in the MDPA.
I. Standard Under § 1404(a)
The change of venue statute, 28 U.S.C. § 1404(a), provides:
"[f]or 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." The purpose of Section 1404(a) "is to prevent `waste
of time, energy and money' and `to protect litigants, witnesses
and the public against unnecessary inconvenience and
expense. . . .'" Van Dusen v. Barrack, 376 U.S. 612, 626, 84
S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Cont'l Grain Co. v.
Barge FBL-585, 364 U.S. 19, 26, 27, 80 S.Ct. 1470, 4 L.Ed.2d
1540 (1960)). In deciding whether transfer is appropriate, the
court must engage in a two part inquiry: first, whether this
action might have been brought in the proposed transferee
district, and, second, if the action could have been brought in
the proposed district, whether a transfer to that district is
appropriate considering the convenience of the parties and the
witnesses and the interest of justice. See United States
Fidelity and Guar. Co. v. Republic Drug Co., Inc., 800 F. Supp. 1076,
1079 (E.D.N.Y. 1992) (citations omitted).
It is well established that motions for transfer of venue "lie
within the broad discretion of the district court and are
determined upon notions of convenience and fairness on a
case-by-case basis." In re Cuyahoga Equip. Corp.,
980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)).
The burden of demonstrating that a case should be transferred is
on the movant, Haskel v. FPR Registry, Inc., 862 F. Supp. 909,
916 (E.D.N.Y. 1994) (citation omitted), and a "clear-cut
showing" must be made that transfer is in the best interest of
the litigation, Connors v. Lexington Ins. Co., 666 F. Supp. 434,
454 (E.D.N.Y. 1987); Smart v. Goord, 21 F. Supp.2d 309,
315 (S.D.N.Y. 1998).
II. Whether the Actions Could Have Been Brought in the
A "district . . . where [an action] might have been brought"
interpreted to mean a district where an action might have been
brought as of right by the plaintiff as to both venue and
jurisdiction at the time the action was filed by the plaintiff.
Hoffman v. Blaski, 363 U.S. 335, 344, 80 S.Ct. 1084, 4 L.Ed.2d
1254 (1960); Elam v. Ryder, No. 94-CV-151A, 1994 WL 705290, at
*3 (W.D.N.Y. Nov. 1, 1994). The parties do not dispute that
venue is proper in the MDPA under 28 U.S.C. § 1391(a). In
diversity actions, such as the cases here, venue is proper in "a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred."*fn3 28 U.S.C.
§ 1391(a)(2). Here, the airplane crashed near the
Wilkes-Barre/Scranton Airport in Pennsylvania. Thus, a
substantial part of the events giving rise to the claims
occurred in the MDPA, and venue is therefore proper in that
district. See Lethbridge v. British Aerospace PLC, Nos.
89-CV-1407, 90-CV-5265, 1991 WL 233206, at *2 (S.D.N.Y. Oct. 30,
1991) (holding venue proper in forum where airplane crash
occurred under Section 1391(a)(2)); Dwyer v. General Motors
Corp., 853 F. Supp. 690, 692 (S.D.N.Y. 1994) (holding venue
proper in state where car accident occurred).
The parties dispute, however, whether the MDPA had personal
jurisdiction over the BAE defendants at the time the suits were
commenced in the EDNY.*fn4 The plaintiffs argue that
Executive Airlines has failed to establish by clear and
convincing evidence that personal jurisdiction in the MDPA is
proper as to the BAE defendants, and, moreover, that the BAE
defendants' informal consent to jurisdiction via its "Notice of
Request" for transfer, is inadequate to satisfy personal
jurisdiction. See Hoffman, 363 U.S. at 342-44, 80 S.Ct. 1084
(party may not consent to personal jurisdiction in transferee
court after-the-fact in order to satisfy Section 1404(a)
requirement). In opposition, Executive Airlines argues that the
present case is distinguishable from Hoffman, and thus
transfer is warranted even though personal jurisdiction over the
BAE defendants has not been established. In the alternative,
Executive Airlines argues that, if the Court requires a showing
of personal jurisdiction over all defendants before it will
allow the cases to be transferred, then it can make a prima
facie showing of personal jurisdiction over the BAE defendants
under either alter-ego or "stream of commerce" theories.
A. Consent to Personal Jurisdiction
In Hoffman, the Supreme Court held that, for purposes of the
change of venue statute, personal jurisdiction over all
defendants must exist in the proposed transferee court
independent of defendant's consent. 363 U.S. at 342-44, 80 S.Ct.
1084. The Cali and Frantz plaintiffs contend that the BAE
defendants' informal consent/waiver of personal jurisdiction
based on their "Notice of Request" for transfer to the MDPA will
not permit Executive Airlines to unilaterally defeat the
plaintiffs' chosen forum.
Executive Airlines asks this Court to transfer the EDNY cases
regardless of whether personal jurisdiction has been established
over the BAE defendants, because Executive Airlines is not
attempting to "create venue" for purposes of transfer. Executive
Airlines argues that the purpose
of the Hoffman decision was to deter defendants from creating
venue solely in order to obtain transfers to their chosen
forums. Executive Airlines points out that, in reaching its
conclusion, the Hoffman Court was able to assume three
propositions, all of which are not present in the cases before
this Court. In Hoffman, it was conceded that (1) the actions
were properly brought in the transferor forums; (2) statutory
venue did not exist over either defendant in the transferee
districts; and (3) the defendants were not within the reach of
the process of the transferee courts. 363 U.S. at 341, 80 S.Ct.
1084. Here, Executive Airlines argues that (1) the plaintiffs
had the right to bring their actions in the MDPA; (2) venue and
jurisdiction exist in the MDPA over the moving defendant; and
(3) lack of jurisdiction in the MDPA over the BAE defendants is
no less disputed in the MDPA than it is in the EDNY. (See
Reply Memorandum ("Reply Mem.") at 12-13.) Based on these
distinctions, Executive Airlines argues that the intent of
Hoffman will not be frustrated by transferring these cases,
because Executive Airlines is within the personal jurisdiction
of the MDPA and must defend other MDPA cases regardless of this
Court's decision on the present motion. Thus, Executive Airlines
asserts that it cannot be accused of attempting to create venue
in a district with no relationship to the actions about which
transfer is sought.
This Court is unaware of any cases which have overlooked
Hoffman's holding based on the distinguishing factors
highlighted by Executive Airlines. The cases in this Circuit to
apply Hoffman have consistently refused to transfer cases in
situations where personal jurisdiction could not be established
over all defendants at the time the action commenced. See,
e.g., Kenwin v. La., No. 97-CV-907, 1999 WL 294800, at *2-3
(S.D.N.Y. May 11, 1999); Animation v. Chicago Bulls,
992 F. Supp. 382, 383-84 (S.D.N.Y. 1998); Wine Mkts. Int'l, Inc. v.
Bass, 939 F. Supp. 178, 179-81 (E.D.N.Y. 1996); Elam, 1994 WL
705290, at *5. Accordingly, while Executive Airlines' argument
is not uncreative, the Court will endeavor, as its sister courts
have done, to determine whether personal jurisdiction would have
been proper over all the defendants in the transferee district.
B. Personal Jurisdiction Standard in Change of Venue
Executive Airlines asserts that it has made a prima facie
case of both general and specific personal jurisdiction over the
BAE defendants in the MDPA, and that a prima facie showing is
sufficient in order to allow transfer. (See Reply Mem. at 15.)
Executive Airlines does not cite to any cases which hold that
only a prima facie showing is required for transfer under
Section 1404(a), and this Court is not aware of any cases which
do. However, when a motion to dismiss for lack of personal
jurisdiction is brought before any discovery has been conducted,
only a prima facie showing of personal jurisdiction is
required to defeat the motion to dismiss. Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). Based
on the fact that very little discovery has taken place in these
cases, it seems reasonable to require only a prima facie
showing of personal jurisdiction to satisfy the jurisdictional
requirement under Section 1404(a).*fn5 Cf. Wine Mkts.
Int'l, 939 F. Supp. at 180
(In a federal question case, court found sufficient minimum
contacts to establish personal jurisdiction over defendant based
on allegations in plaintiffs complaint.). Therefore, if
Executive Airlines can establish a prima facie case of
personal jurisdiction, such a showing will be sufficient to
satisfy the first prong of the transfer venue analysis.
C. Personal Jurisdiction Over the BAE Defendants
Rule 4(e) of the Federal Rules of Civil Procedure "authorizes
personal jurisdiction over non-resident defendants to the extent
permissible under the law of the state where the district court
sits." Pennzoil Prods. Co. v. Colelli, 149 F.3d 197, 200 (3d
Cir. 1998) (quoting Mellon Bank (East) PSFS, Nat'l Ass'n v.
Farino, 960 F.2d 1217, 1221 (3d Cir. 1992)). In this case, that
state is Pennsylvania. Pennsylvania's long-arm statute,
42 U.S.C. Pa. Cons. Stat. A. § 5322, permits courts to exercise
jurisdiction over non-resident defendants "to the constitutional
limits of the [D]ue [P]rocess [C]lause of the [F]ourteenth
[A]mendment." Farino, 960 F.2d at 1221 (citations omitted);
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