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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,
V.
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.

      MEMORANDUM AND ORDER

SUMMARY

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

BACKGROUND

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. ¶ 13.)

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.

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.

DISCUSSION

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 MDPA

A "district . . . where [an action] might have been brought" has been 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 Motion

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. ยง 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); Savin Corp. v. Heritage Copy Prods., Inc., 661 F. ...


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