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Esheva v. Siberia Airlines

June 28, 2007

TATYANA MICHAILOVNA ESHEVA, INDIVIDUALLY, AND ANDREY ALEXANDROVICH AND TATAYANA MICHAILOVNA ESEHVA, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF ILIA ANDREEVICH ESHEV, DECEASED, ET AL., PLAINTIFF,
v.
SIBERIA AIRLINES, PRESENTLY KNOWN AS S7 AIRLINES, A FOREIGN CORPORATION, AND AIRBUS LEASING II, INC, A DELAWARE CORPORATION, DEFENDANTS.
DHZHURA NISHANOVICH NISHANOV, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EVGENIA NISHANOVA, ET AL., PLAINTIFFS,
v.
SIBERIA AIRLINES, AND AIRBUS LEASING II, INC, DEFENDANTS.
AIRBUS LEASING II, INC., A DELAWARE CORPORATION, THIRD-PARTY PLAINTIFFS,
v.
SIBERIA AIRLINES, PRESENTLY KNOWN AS S7 AIRLINES, A FOREIGN CORPORATION, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION AND ORDER

One of the two defendants in this action arising from a 2006 airliner crash in Russia has moved to dismiss the action under the doctrine of forum non conveniens. Its motion is conditionally granted.

BACKGROUND

On July 9, 2006, a Siberia Airlines ("Sibir") regularly scheduled domestic flight from Moscow landed in Irkutsk and overran the runway, striking a concrete barrier and several buildings. While 79 passengers and crew members survived the crash, 124 died. Sixteen of the passengers were residents of countries other than Russia, but none were U.S. residents and none of the passenger tickets involved transportation connecting with the United States. Russia has investigated the accident through its Interstate Aviation Committee, issuing a report highly critical of Sibir, and has initiated a criminal investigation. The Russian government has custody of the wreckage and the recorders from the aircraft.

The aircraft was designed and manufactured by Airbus, S.A.S. in France, owned by Wilmington Trust Company, and leased to Airbus Leasing II, Inc. ("Airbus"), a Delaware corporation with its principal place of business in Virginia. Airbus subleased the aircraft to Sibir. The plane was registered in France, and maintained in both Russia and Germany. Its crew was licensed in Russia and employed by Sibir.

On October 24, Podhurst Orseck, P.A. ("Podhurst") filed a complaint on behalf of 158 passengers and crew members, suing Sibir and Airbus. These plaintiffs included one victim who was on the ground and had already settled with Sibir and eight victims who held tickets providing for international air carriage governed exclusively by international treaty law which precludes suit against Sibir in the United States. The Podhurst complaint alleges negligence and vicarious liability against Sibir and vicarious liability against Airbus.

On November 21, Kreindler & Kreindler LLP ("Kreindler") filed a separate complaint against the same two defendants on behalf of 26 passengers and crew members, alleging essentially the same causes of action. It is noteworthy that in neither the Podhurst nor the Kreindler actions have the plaintiffs appointed personal representatives to pursue these actions. See Rule 17, Fed. R. Civ. P. This failure raises a serious question as to the extent to which the plaintiffs are actually participating in this litigation.*fn1

Anticipating this motion to dismiss, on October 18, 2006, Podhurst and Airbus entered into an agreement ("Agreement") in which the plaintiffs agreed to waive punitive damage claims against Airbus, sue no other Airbus entity in this action, not sue Airbus outside this district except in France, and dismiss all claims against Airbus if their claims against Sibir are dismissed in this action. Airbus for its part agreed to sue Sibir, to refrain from moving to dismiss claims filed in New York on the ground of forum non conveniens, and to oppose efforts to sever or dismiss the New York action. The parties agreed that French law governs the claims amongst them.

Living up to its commitments in the Agreement, Airbus filed a cross claim against Sibir on November 1, 2006 in both of the actions. Those claims, however, are now resolved. In the Spring of 2007, Sibir agreed to indemnify Airbus. On May 18, 2007, Airbus accepted Sibir's Offer of Judgment. As a result, the third-party actions no longer have significance to the issues raised in this motion.*fn2

On April 9, Sibir moved to dismiss both actions on the ground of forum non conveniens. It has agreed not to contest liability in Russia, to pay full compensatory damages to all plaintiffs as determined by a Russian court, and to waive any statute of limitations for actions filed in Russia within six months of dismissal here. The motion was fully submitted on May 25.

DISCUSSION

The Court has broad discretion in applying the principle of forum non conveniens. In exercising this discretion, it applies the three-step analysis that the Court of Appeals described in Iragorri v. United Techs. Corp., 274 F.3d 65, 72-76 (2d Cir. 2001).

At step one, a court determines the degree of deference properly accorded the plaintiff's choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute. Finally, at step three, a court ...


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