Elena Fortaner v. The Boeing Company ( 2013 )

FILED
NOT FOR PUBLICATION JAN 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELENA CELLA FORTANER, Personal No. 11-55951
Representative of the Estate of Maria Del
Carmen Fortaner Nou, Deceased; et al., D.C. No. 2:10-cv-01149-GAF-RZ
Plaintiffs - Appellants,
MEMORANDUM *
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
ANTONIO GARCIA MARTIN, As No. 11-55952
Special Administrator of the Estate of
Laudencio Garcio Martin, Deceased, As D.C. No. 2:10-cv-01150-GAF-RZ
Special Administrator of the Estate of
Elena Garcia Hernandez, Deceased, and
As Special Administrator of the Estate of
Carlos Garcia Hernandez, Deceased,
Plaintiff - Appellant,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
KIM IVONNE TATE PEREZ, No. 11-55959
Individually; et al.,
D.C. No. 2:09-cv-07285-GAF-RZ
Plaintiffs - Appellants,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
ANA MARIA SANCHEZ DIEZ, No. 11-55960
Individullay and as Personal
Representative of the Estate of Betsabe D.C. No. 2:10-cv-01148-GAF-RZ
Ibanez Sanchez, decedent; et al.,
Plaintiffs - Appellants,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
VIRGINIA PINO HERNANDEZ No. 11-55961
MARTIN, Individually and as
Representative of the Estate of Zenaida D.C. No. 8:10-cv-01262-GAF-RZ
Hernandez Martin, Deceased; et al.,
Plaintiffs - Appellants,
v.
THE BOEING COMPANY; et al.,
2
Defendants - Appellees.
CARMELO ALVARADO CASTRO, as No. 11-55962
personal representative of the estate of
Robert Alvarado Coruna and AVELINA D.C. No. 2:10-cv-01114-GAF-RZ
CORUNA DIAZ, as co-personal
representative of the estate of Robert
Alvarado Coruna,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA LORETO GONZALEZ No. 11-55963
CABANAS, as co-personal representative
of the Estate of Clara Diaz Gonzalez, D.C. No. 2:10-cv-01120-GAF-RZ
deceased and JOSE LUIS DIAZ DIAZ, as
co-personal representative of the Estate of
Clara Diaz Gonzalez, deceased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
3
GLORIA ESTER DIEPA MARTIN, as No. 11-55964
personal representative of the Estate of
Oscar Gabriel Alvarado Diepa, deceased, D.C. No. 2:10-cv-01107-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
HIGINIO IBANEZ FRACA, as personal No. 11-55966
representative of the estate of Betsabe
Ibanez Sanchez, deceased, D.C. No. 2:10-cv-01108-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
CARLOS BAIXERAS LLANO, as No. 11-55968
Personal Representative and Special
Administrator of the Estate of MARIA D.C. No. 2:11-cv-00576-GAF-RZ
DEL PINO DJAZ MENDOZA, deceased;
et al.,
Plaintiffs - Appellants,
4
v.
THE BOEING COMPANY,
Defendant - Appellee.
JUAN DIEPA HERNANDA, as co- No. 11-55969
Personal Representatives of the Estate of
Monica Diepa Leon, deceased and D.C. No. 2:10-cv-01115-GAF-RZ
FRANCISCA LEON RIVERA, as co-
Personal Representatives of the Estate of
Monica Diepa Leon, deceased,
Plaintiffs - Appellants,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
GLORIA ESTER DIEPA MARTIN, as No. 11-55971
personal representative of the estate of
Roberto Alexander Alvarado Diepa, D.C. No. 2:10-cv-01106-GAF-RZ
deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
5
GLORIA ESTER DIEPA MARTIN, as No. 11-55971
personal representative of the estate of
Roberto Alexander Alvarado Diepa, D.C. No. 2:10-cv-01106-GAF-RZ
deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA DOLORES FLOREZ No. 11-55972
RODRIGUEZ, as personal representative
of the estate of Maria Lourdes Romero D.C. No. 2:10-cv-01116-GAF-RZ
Florez, deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
SONIA MARIA CASTILLO No. 11-55973
MARTINEZ, as personal representative of
the Estate of Maria Sonia Rodriguez Del D.C. No. 2:10-cv-01117-GAF-RZ
6
Castillo, deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
JOSEFA ORTIZ PEREA, as personal No. 11-55974
representative of the estate of Maria
Cristian Domiguez Ortiz, deceased, D.C. No. 2:10-cv-01113-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA DEL CARMEN HERNANDEZ, No. 11-55976
Personal Representative of the Estate of
Ruben Santan Mateo, deceased, D.C. No. 2:10-cv-01101-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
7
Defendants - Appellees.
EUGENIO NUNEZ PAVILLARD, as No. 11-55977
personal representative of the Estate of
Jorge Nunez Piretti, deceased, D.C. No. 2:10-cv-01110-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
SHIRLEY MANI, as Personal No. 11-55978
Representative of the Estate of Mukesh
Bacho Mani, deceased, D.C. No. 2:10-cv-01111-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
JOSE JESUS PLACERES PEREZ, as No. 11-55979
Personal Representative of the Estate of
Ines Placeres Perez, deceased, D.C. No. 2:10-cv-01123-GAF-RZ
8
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
LEANDRO ORTEGA PENA, No. 11-55980
Plaintiff - Appellant, D.C. No. 2:10-cv-01104-GAF-RZ
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
ANGEL FRANCISCO SANTA No. 11-55981
CASTILLO, as personal representative of
the estate of Carmen Isabel Santana D.C. No. 2:10-cv-01138-GAF-RZ
Castillo, deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
9
YOLANDA VILLANUEVA MARTIN, as No. 11-55982
co-personal representative of the estate of
Alejandro Villanueva Santans, deceased; et D.C. No. 2:10-cv-01139-GAF-RZ
al.,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
DANIEL ESTEVEZ RUIZ, as Personal No. 11-55984
Representative of the Estates of Susana
Marin Ramos, deceased, D.C. No. 2:10-cv-01119-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
YOLANDA VILLANUEVA MARTIN, as No. 11-55985
co-Personal Representatives of the Estate
of Dara Villanueva Santana, deceased and D.C. No. 2:10-cv-01140-GAF-RZ
ANGEL FRANCISCO SANTANA
CASTILLO, as co-Personal
Representatives of the Estate of Dara
Villanueva Santana, deceased,
10
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
RAFAEL MORENO PEREZ and No. 11-55986
ANGELES CARPINTERO RUIZ,
D.C. No. 2:10-cv-01127-GAF-RZ
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
CONCEPCION MARIA DE LA PAZ No. 11-55988
SOTO LLOVES, as personal
representative of the Estate of Cecilia D.C. No. 2:10-cv-01129-GAF-RZ
Gomez Soto, deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
11
YOLANDA VILLANUEVA MARTIN, as No. 11-55989
co-Personal Representatives of the Estate
of Keila Villanueva Santana, deceased and D.C. No. 2:10-cv-01142-GAF-RZ
ANGEL FRANCISCO SANTANA
CASTILLO, as co-Personal
Representatives of the Estate of Keila
Villanueva Santana, deceaased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA CANDELARIA PERE MATEO, No. 11-55990
as co-Personal Representatives of the
Estate of Ruben Daniel Sanchez Perez, D.C. No. 2:10-cv-01125-GAF-RZ
deceased and JUAN ANDRES SANCHEZ
HERNANDEZ, as co-Personal
Representatives of the Estate of Ruben
Daniel Sanchez Perez, deceased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
12
MARIA JESUS MELIAN PEREZ, as No. 11-55991
personal representative of the estate of
Araceli Yolanda Dominguez Melian, D.C. No. 2:10-cv-01141-GAF-RZ
deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
TEREZA SUAREZ QUEBEDO, as No. 11-55992
personal representative of the estate of
Jose Vicente Robaina Suarez, deceased, D.C. No. 2:10-cv-01126-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA JESUS MELIAN PEREZ, as No. 11-55993
personal representative of the estate of
Alicia Dominguez Melian, deceased, D.C. No. 2:10-cv-01143-GAF-RZ
Plaintiff - Appellant,
v.
13
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
YOLANDA VILLANUEVA MARTIN, as No. 11-55995
Personal Representative of the Estate of
Alejandro Villanueva martin, deceased, D.C. No. 2:10-cv-01133-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
ANGELES CARPINTERO RUIZ and No. 11-56000
RAFAEL MORENO PEREZ, her
husband, D.C. No. 2:10-cv-01105-GAF-RZ
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
14
OZLEM ERDIL; et al., No. 11-56001
Plaintiffs - Appellants, D.C. No. 2:10-cv-07228-GAF-RZ
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
VICENTE GUERRERO, as personal No. 11-56005
representative of the Estate of Gabriel
Guerrero, deceased, D.C. No. 2:10-cv-01112-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA ESTRELLA CIGALA No. 11-56009
MARRERO, as co- Personal
Representatives of the Estate of Jorge D.C. No. 2:10-cv-01130-GAF-RZ
Naranjo Gomez, deceased and
CONCEPCION MARIA DE LA PAZ
SOTO LLOVES, as co-Personal
Representatives of the Estate of Jorge
Naranjo Gomez, deceased,
Plaintiffs - Appellants,
15
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA ESTRELLA CIGALA No. 11-56012
MARRERO, as personal representative of
the estate of Jorge Naranjo Cigalo, D.C. No. 2:10-cv-01128-GAF-RZ
deceased,
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIA ESTRELLA CIGALA No. 11-56017
MARRERO, as personal representative of
the estate of Raquel Naranjo Gomez, D.C. No. 2:10-cv-01131-GAF-RZ
deceased and CONCEPCION MARIA DE
LA PAZ SOTO LLOVES, as personal
representative of the estate of Raquel
Naranjo Gomez, deceased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
16
CORPORATION; et al.,
Defendants - Appellees.
EUGENIO NUNEZ PAVILLARD, as No. 11-56019
Personal Representative of the Estate of
Maria Eugenia Nunez Piretti, deceased, D.C. No. 2:10-cv-01137-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
TANAUSU GONZALEZ OLIVA, As No. 11-56021
Personal Representative of the Estate of
Tanausu Gonzalez Hernandez, D.C. No. 2:10-cv-07193-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIANA PUYE, as Co-Personal No. 11-56024
Representative for the Estate of Mustapha
17
Puye, Deceased and ALASAN PUYE, as D.C. No. 2:10-cv-07224-GAF-RZ
Co-Personal Representative of the Estate
of Mustapha Puye, Deceased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MARIANA PUYE, as Co-Personal No. 11-56025
Representative for the Estate of Sira Puye,
Deceased and ALASAN PUYE, as Co- D.C. No. 2:10-cv-07225-GAF-RZ
Personal Representative for the Estate of
Sira Puye, Deceased,
Plaintiffs - Appellants,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MAXIMO DIAZ DELGADO, as personal No. 11-56026
representative of the estate of Lidia
Delgado Estevez, deceased, D.C. No. 2:10-cv-01124-GAF-RZ
Plaintiff - Appellant,
18
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
JUAN DE DIOS FONT MARIN, as No. 11-56027
Personal Representative of the Estate of
Maria Jesus Font Rodriguez, deceased, D.C. No. 2:10-cv-01122-GAF-RZ
Plaintiff - Appellant,
v.
MCDONNELL DOUGLAS
CORPORATION; et al.,
Defendants - Appellees.
MANFRED MROTZEK, as personal No. 11-56174
representative of the estate of Gerd
Mrotzek, deceased, D.C. No. 2:10-cv-01134-GAF-RZ
Plaintiff - Appellant,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
19
MANFRED MROTZEK, as personal No. 11-56176
representative of the estate of Niklas
Mrotzek, deceased, D.C. No. 2:10-cv-01135-GAF-RZ
Plaintiff - Appellant,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
MANFRED MROTZEK, as personal No. 11-56177
representative of the estate of Lucas
Mrotzek, deceased, D.C. No. 2:10-cv-01136-GAF-RZ
Plaintiff - Appellant,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
IRINA HULT, as personal representative No. 11-56178
of the estate of Ann Marie Helene Hult,
deceased, D.C. No. 2:10-cv-01145-GAF-RZ
Plaintiff - Appellant,
v.
THE BOEING COMPANY; et al.,
20
Defendants - Appellees.
JOHAN L. RONDONUWU, as co- No. 11-56179
Personal Representative of the Estate of
Nguni Toka Rondonuwu, deceased and D.C. No. 2:10-cv-01146-GAF-RZ
SYULL MAINSIOUW, as co-Personal
Representative of the Estate of Nguni Toka
Rondonuwu, deceased,
Plaintiffs - Appellants,
v.
THE BOEING COMPANY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted December 3, 2012
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
This is an appeal from an order of the United States District Court for the
Central District of California, dismissing 116 consolidated suits on forum non
conveniens grounds.
This litigation arises out of a 2008 airplane accident in Madrid, in which a
21
Spanair flight crashed on takeoff, killing 154 people and injuring 18 others, none of
whom were United States citizens or residents. Two hundred and four plaintiffs,
mostly Spanish nationals, brought wrongful death and personal injury actions in
various United States district courts. The complaints asserted negligence and strict
products liability claims against Boeing Company and various component
manufacturers (“Boeing”), alleging that a takeoff warning system (“TOWS”) failed
to alert the Spanair crew to misconfiguration of the plane’s wing flaps and slats. The
Judicial Panel on Multidistrict Litigation consolidated the suits in the Central District
of California.
Boeing filed a forum non conveniens motion to dismiss, arguing that the suits
should proceed in Spain. The district court first found that the Spanish courts were
an adequate alternative forum. After weighing various private and public interest
factors, the district court granted the motion to dismiss. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of
discretion the district court’s forum non conveniens ruling. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981). Finding no abuse of discretion, we affirm.
1. “At the outset of any forum non conveniens inquiry, the court must
determine whether there exists an alternative forum.” Id. at 254 n.22. This
requirement is ordinarily satisfied when the defendant agrees to submit to the
22
jurisdiction of the alternative forum, id., and Boeing has agreed to submit to the
jurisdiction of the Spanish courts. Plaintiffs argued below that the Spanish courts
were not an adequate forum because civil claims could be stayed there while criminal
proceedings were pending. But, because all Spanish criminal proceedings have
concluded, these concerns are now moot.
2. In determining whether a suit should be dismissed on grounds of forum non
conveniens, the private interest factors to be considered include:
(1) the residence of the parties and the witnesses; (2) the forum’s
convenience to the litigants; (3) access to physical evidence and other
sources of proof; (4) whether unwilling witnesses can be compelled to
testify; (5) the cost of bringing witnesses to trial; (6) the enforceability
of the judgment; and (7) “all other practical problems that make trial of
a case easy, expeditious and inexpensive.”
Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir. 2001) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). The district court carefully discussed
each of these factors in its order of dismissal.
Plaintiffs argue that in considering the costs of bringing witnesses to trial, the
district court did not grant proper weight to the willingness of Plaintiffs to travel to the
Central District. But, as the district court noted, the plaintiffs’ travel costs are not the
only relevant considerations; there are also costs associated with bringing other
witnesses to trial. The district court’s conclusion that the greater costs of proceeding
23
in the United States slightly favored dismissal was not unreasonable.
Plaintiffs also argue that the district court improperly focused on witnesses and
physical evidence in Spain. They characterize this evidence as unimportant because
Plaintiffs have agreed to stipulate to the negligence of the flight crew, Spanair, and
airport personnel, and their claims concern only a defect in the design of the TOWS
system. Boeing contests that any TOWS defect was the proximate cause of the
accident. It argues that the negligence of the crew and ground personnel caused the
accident and, alternatively, that the fault of various Spanish actors should reduce any
of the manufacturers’ liability. The district court recognized the parties’ differing
theories of the case, and properly found that cockpit recordings, information about the
crash, and the results of investigations by Spanish authorities would be more difficult
to access in the United States than in Spain. See Lueck, 236 F.3d at 1146-47.
Plaintiffs further argue that because Spanair has filed for bankruptcy in Spain,
the private factors no longer weigh in favor of that forum. But that filing, which
occurred after the district court’s order of dismissal, does not mean that Spanair
employees are not relevant witnesses since we could not find a part of the record
discussing whether Spanish law will limit Plaintiffs’ ability to lay claims against the
airline’s assets, insurers, or employees.
3. The public interest factors include: “(1) local interest of [the] lawsuit; (2)
24
the court’s familiarity with governing law; (3) burden on local courts and juries; (4)
congestion in the court; and (5) the costs of resolving a dispute unrelated to this
forum.” Lueck, 236 F.3d at 1147. The district court’s order also carefully balanced
these factors.
Plaintiffs argue that the district court improperly discounted California’s
interest as the site of the airplane’s manufacturer. The district court did not abuse its
discretion, however, in giving greater weight to Spain’s interest as the locale of the
crash site and home of the majority of the decedents. See Piper, 454 U.S. at 260-61.
Plaintiffs also argue that the district court inappropriately relied upon docket
congestion in the Central District in ordering dismissal. Although a district court
cannot rely solely on congestion when dismissing for forum non conveniens, it may
consider congestion as one of several relevant factors, as the court did here. See Gates
Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984).
4. Finally, Plaintiffs argue that the district court should have retained
jurisdiction to resolve future discovery disputes. A district court’s decision whether
to place conditions on a forum non conveniens dismissal is reviewed for abuse of
discretion. Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir.
2011). Plaintiffs have not demonstrated such an abuse. Discovery disputes are not
unusual in complex litigation, and there has been no showing that Boeing is unlikely
25
to participate in any discovery that is permitted under Spanish law or that future
discovery disputes mandate retention of jurisdiction.
AFFIRMED.
26