ellen-lumenta-individually-and-as-personal-representative-of-the-estate-of ( 2015 )

Opinion issued August 27, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00207-CV
———————————
ELLEN LUMENTA, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF ROY MEYERS REVELINO
NAWAWI, DECEASED, Appellant
V.
BELL HELICOPTER TEXTRON, INC., BELL HELICOPTER
CORPORATION, BELL HELICOPTER INTERNATIONAL SALES
CORPORATION, BELL HELICOPTER INTERNATIONAL, INC., BELL
HELICOPTER KOREA, INC., PRATT & WHITNEY, AND
UNITED TECHNOLOGIES CORP., Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2013-45235A
MEMORANDUM OPINION
Appellant, Ellen Lumenta, individually and as personal representative of the
estate of Roy Meyers Revelino Nawawi (“Nawawi”), deceased, challenges the trial
court’s order dismissing, under the doctrine of forum non conveniens,1 her
wrongful death and survival claims against appellees, Bell Helicopter Textron,
Inc., Bell Helicopter Corporation, Bell Helicopter International Sales Corporation,
Bell Helicopter International, Inc., Bell Helicopter Korea, Inc. (collectively,
“Bell”), Pratt & Whitney (“Pratt”), and United Technologies Corporation
(“United”). In four issues, Lumenta contends that the trial court erred in denying
her motion for continuance, granting appellees’ motion for protection from
discovery, and dismissing her claims against appellees.
We affirm.
Background
In her first amended petition, Lumenta, who is a citizen of the Republic of
Indonesia, alleged that on August 30, 2011, her son, Nawawi, also a citizen of
Indonesia, was a passenger on a helicopter that crashed on Dua Saudera Mountain
in Bitung, North Sulawesi, Indonesia. She also alleged that the helicopter’s
avionics, power train, and instrumentation and navigational systems were
defective, proximately causing the crash and the death of Nawawi, seven other
1
See TEX. CIV. PRAC. & REM. CODE § 71.051 (Vernon 2008).
2
passengers, the pilot, and the engineer. Lumenta further alleged that Bell was
responsible for the overall design, construction, and maintenance of the helicopter;
Pratt was “secondarily responsible” for the engines; and, Honeywell and Northern
Airborne Technology (“NAT”) 2 were “responsible for the avionics, including an
early warning system that should have warned the pilot[] of approaching dangerous
obstacles, such as mountains, but utterly failed to do so.” She asserted claims for
products liability, negligence, and gross negligence against numerous defendants,
including appellees.
Bell filed a motion to transfer venue and an answer subject thereto. In its
motion to transfer, Bell argued that venue was not proper in Harris County because
it was not a location of any of the defendants’ principal offices, not the site of the
“alleged wrong,” and not where the helicopter was designed. Bell asserted that
venue was proper in Tarrant County, Texas. In its answer, Bell generally denied
the allegations. Pratt and United also answered, generally denying the allegations
and asserting various affirmative defenses.
Subsequently, Bell filed a motion to dismiss Lumenta’s claims under the
doctrine of forum non conveniens (the “FNC motion”). In its FNC motion, Bell
asserted that “Indonesia is an available, adequate, and alternate forum.” And it
argued that the private interests of the parties and the public interest of the state
2
Honeywell and NAT are not parties to this appeal.
3
overwhelmingly favor presenting this case in Indonesia because Lumenta’s claims
“center on a series of events that occurred within the jurisdiction of the Indonesian
courts and involve[] Indonesian citizens.”
Bell noted that on August 3, 2011, Nawawi, an Indonesian citizen, “boarded
a Bell Helicopter at Sam Ratulangi Airport (also known as, Manado International
Airport) in Manado, North Sulawesi, Indonesia.” Of the seven other passengers on
board, three were Indonesian, two were Australian, and two were South African.
The pilot and the engineer were also Indonesian. The helicopter, operated by PT
Nyamen Air and chartered by PT Nusa Helmahera Mineral, both based in
Indonesia, was bound for Gosowong, Halmahera Island, Indonesia. Minutes after
takeoff, it crashed into the side of Dua Saudera Mountain in Bitung, North
Sulawesi, Indonesia, approximately twenty-five kilometers southeast of the
departure site. The Indonesian National Transportation Safety Committee (the
“INTSC”) investigated the site and recovered the wreckage, which remains in
Indonesia.
Bell argued that Indonesia is the forum with the most significant contact
with the lawsuit because Indonesia is the site of the crash; the helicopter wreckage;
the pilot records and flight logs; and the maintenance records. Moreover, all the
“key witnesses” are in Indonesia, including the INTSC representatives, who
conducted the official investigation of the crash and recovery of the wreckage; the
4
Manado Airport employees, who tracked and communicated with the helicopter;
the mechanics, who serviced the helicopter; and all the employees of the
companies that owned, chartered, maintained, and operated the helicopter. Bell
asserted that the “key witnesses and evidence” would be “beyond the subpoena
power of any Texas court” and the “cost, time, and scheduling difficulties to obtain
evidence and present witness testimony would be far greater if the case were tried
in Texas.”
In support of its FNC motion, Bell attached the INTSC’s “Aircraft Accident
Investigation Report,” in which it concluded:
• The aircraft was airworthy prior to the accident and there was no
pilot report of any system malfunction during the flight.
• The crew had a valid license and medical certificate.
• The pilot was fasting on the day of [the] accident.
• The aircraft flew via direct track to Gosowong, which was not a
published VFR [Visual Flight Rules] route.
• The wreckage and impact analysis indicated that the engine, main
and tail rotors were functioning properly during impact.
• The weather at the accident site prevented a flight [from being]
performed under VFR.
• The flight was conducted under VFR while the weather was below
the VFR minima.
The INTSC classified the collision as a “Controlled Flight into Terrain (‘CFIT’),”
meaning that an “airworthy aircraft, under [the] control of the pilot, un-
intentionally collided with terrain.” Bell also attached to its motion the affidavit of
5
Ignatius Andy, a practicing attorney in Indonesia and an expert on Indonesian civil
and commercial litigation, who testified that Indonesia is an adequate alternate
forum in this case. Pratt and United joined Bell’s FNC motion, but did not file
separate evidence.
Bell, in conjunction with its FNC motion, filed a motion for protection,
seeking to stay “merits discovery” pending the trial court’s ruling on its FNC
motion. Bell asserted that a stay was necessary to prevent undue burden and the
unnecessary expense of participating in discovery on the merits before the trial
court ruled on the threshold FNC issue, which could end the litigation. Pratt and
United filed a motion in support of Bell’s motion for protection.
In her response to appellees’ collective motion for protection, Lumenta
asserted that the Texas Rules of Civil Procedure provide that “discovery shall not
be abated by [the] pendency of a motion to transfer venue.”3 And she argued that
“all discovery” was relevant to the FNC motion because the parties needed to
ascertain the “whereabouts of the wreckage” and “the key liability witnesses,”
“what they [were] going to testify to,” and “any evidence of design defects, as well
as the manufacturing and maintenance product defects [sic] of the helicopter.” She
asserted that the FNC motion would “take several years to resolve.”
3
See TEX. R. CIV. P. 88.
6
On December 16, 2013, the trial court, at a hearing on appellees’ motion for
protection, “grant[ed] the motion with regard to merits discovery on the case in its
entirety, . . . except that for discovery related to forum non conveniens.”
On February 6, 2014, Lumenta, in Texas, took the deposition of Harold
Barrentine, a Bell safety investigator, who had previously flown to Indonesia at the
request of the INTSC and assisted with the investigation of the crash. And, on
February 7, 2014, Lumenta filed a verified motion to continue the hearing on
appellees’ FNC motion, which was set for February 10, 2014, in order to review
Barrentine’s testimony and respond to appellees’ FNC motion.
Lumenta, on February 10, 2014, filed a response to appellees’ FNC motion
and a supplement to her motion for continuance. In her response, she asserted that
Texas is the forum with the most significant connection to the lawsuit. And she
argued that Indonesia “does not provide an adequate remedy at law and is not an
adequate alternative forum” because the courts of Indonesia have held that they do
not have jurisdiction over a lawsuit, as here, in which an “Indonesian citizen is
injured or killed by the negligence or product defect of a non-resident corporation.”
Rather, the “Indonesian citizen must go to the domicile of the negligent foreign
corporation . . . and sue them there.” Lumenta further asserted that the relevant
witnesses in this case are “[a]ll the American witnesses” who “handled the design,
manufacture, sale and maintenance” of the helicopter, power train, and
7
instrumentation and navigational systems, and who “investigated the crash on
behalf of appellees.” She stipulated that she would “pay the cost of moving the
wreckage from Indonesia to Texas for investigation and the trial” and use “only
Texas-based experts.”
In support of her response, Lumenta attached excerpts from the Central
Jakarta District Court’s judgments in Rukmi Indah Indiarti v. Bell Helicopter
Textron, Inc. 4 She also attached a letter from Arthur B. Childers, president of
Aviation Safety & Analysis of Washington, D.C., who recommended a “complete
investigation” of the helicopter wreckage. Based on his review of all the
information presented to him, Childers noted that there were “many reasons” for
the crash. And he explained that it would be necessary to “examine the wreckage
and interview the people associated with the manufacture, operation and
maintenance of the helicopter, both in the United States and Indonesia.” Childers
opined that “there will most probably be a larger number of relevant witnesses who
reside in the United States,” but he noted that it was “too early to make a precise
determination.” In her supplemental motion for continuance, Lumenta requested
ninety days to “prove up . . . the holding of the Indonesian Courts.”
4
Civil Case Numbers 97 and 144, dated September 23, 2005 and November 20,
2008.
8
Also on February 10, 2014, the trial court granted appellees’ FNC motion
and dismissed Lumenta’s causes of action against them. In a separate order, the
trial court severed Lumenta’s claims against appellees into the instant lawsuit.
Forum Non Conveniens
In her second, third, and fourth issues, Lumenta argues that the trial court
erred in dismissing her claims against appellees under the doctrine of forum non
conveniens because she will now have to pursue her lawsuit in Indonesia, which
does not provide an adequate alternate forum, the pertinent private interest factors
establish that Texas is the most convenient forum, and the pertinent public interest
factors weigh in favor of Texas as the appropriate forum.
We review a trial court’s decision to dismiss a case under the doctrine of
forum non conveniens for an abuse of discretion. In re Gen. Elec. Co., 271 S.W.3d
681, 685 (Tex. 2008); Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 42–53
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). A court abuses its discretion if
its decision is arbitrary, unreasonable, or made without reference to guiding
principles. Gen. Elec., 271 S.W.3d at 685. In the absence of findings of fact and
conclusions of law, as here,5 we imply that the trial court found all facts necessary
5
Although Texas Civil Practice and Remedies Code section 71.051 requires a trial
court to issue findings of fact and conclusions of law, the record provided to us
contains no such findings and conclusions. See TEX. CIV. PRAC. & REM. CODE
ANN. § 71.051(f). And the record does not reflect that Lumenta requested findings
9
to support its decision so long as they are also supported by the evidence. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
The Texas Civil Practice and Remedies Code provides,
If a court of this state, on written motion of a party, finds that in the
interest of justice and for the convenience of the parties a claim or
action to which this section applies would be more properly heard in a
forum outside this state, the court shall decline to exercise jurisdiction
under the doctrine of forum non conveniens and shall stay or dismiss
the claim or action. In determining whether to grant a motion to stay
or dismiss an action under the doctrine of forum non conveniens, the
court may consider whether:
(1) an alternate forum exists in which the claim or action may be
tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state
would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of the parties
or otherwise, can exercise jurisdiction over all the defendants
properly joined to the plaintiff's claim;
(5) the balance of the private interests of the parties and the public
interest of the state predominate in favor of the claim or action
being brought in an alternate forum, which shall include
consideration of the extent to which an injury or death resulted
from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.
TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b) (Vernon 2008). Section 71.051
neither places the burden of proof on a particular party in regard to the above
or filed a notice of past-due findings. See Curtis v. Comm’n for Lawyer
Discipline, 20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
10
factors, nor does it require that a party prove each factor. Gen. Elec., 271 S.W.3d
at 686. Rather, section 71.051 “simply requires the trial court to consider the
factors, and it must do so to the extent the factors apply.” Id. at 687. “To the
extent evidence is necessary to support the positions of the parties, the trial court
must base its findings and decision on the weight of the evidence, and certainly is
entitled to take into account the presence or absence of evidence as to some issue
or position of a party.” Id.
Adequate Alternative Forum
Lumenta first argues that Indonesia is not an adequate alternative forum
primarily because the courts of Indonesia will not adjudicate wrongful death claims
against foreign defendants. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.051(b)(1)-(2).
“Ordinarily, an alternate forum is shown if the defendant is ‘amenable to
process’ in the other jurisdiction.” Gen. Elec., 271 S.W.3d at 688 (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 102 S. Ct. 252, 265 (1981)). “That
the substantive law of an alternative forum may be less favorable to the plaintiff is
entitled to little, if any, weight.” In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 678
(Tex. 2007). Although “[t]here may be circumstances where an alternate forum is
not adequate because the remedies it offers are so unsatisfactory that they really
comprise no remedy at all,” “comparative analyses of procedures and substantive
11
law in different forums should be given little weight in forum non conveniens
analysis because such analyses pose significant practical problems.” Gen. Elec.,
271 S.W.3d at 688. Thus, “a comparative analysis of the procedures, rights, and
remedies” available in Texas and Indonesia “should only be given weight” if
Indonesia “would in substance provide no remedy at all.” Id.; see also Pirelli Tire,
247 S.W.3d at 678 (“[A]n alternative forum is adequate if the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court.”) (citations omitted);
Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C., 204 S.W.3d
473, 483 (Tex. App.—Corpus Christi 2006, pet. denied) (“[P]rimary consideration
is whether the alternate forum entitles appellants to a remedy for their losses, even
if compensation for their injuries is less than what may be awarded in a Texas
court.”).
Here, Bell presented the trial court with the affidavit of Ignatius Andy, who
testified that he is licensed to practice law before all Indonesian courts, has spoken
on choice-of-forum issues, and has served as an expert witness in products-liability
cases and “on Indonesian Civil and Commercial Litigation law in various
international judicial proceedings.” Andy explained that an Indonesian party may
submit a civil claim against a foreign party in an Indonesian court, Indonesian law
does allow litigation of the subject matter of Lumenta’s lawsuit, and it provides for
12
a remedy. He noted that Lumenta “may submit claims for product liability,
negligence, or gross negligence” to the courts of Indonesia and recover actual and
punitive damages. 6 Further, “Indonesian courts have jurisdiction of the witnesses
and evidence in this case,” and appellees are amenable to service of process, which
may be accomplished through diplomatic channels. 7 Andy further explained that
Lumenta’s claims will not be barred by the Indonesian statute of limitations, which
will expire in thirty years, and the Indonesian legal system affords numerous
procedural safeguards, including adversarial presentation of oral and written
evidence, provisions for compelling unwilling witnesses to testify, and appellate
review. Andy noted that Indonesian courts follow the principle that “[t]he court
6
See Indonesian Consumer Protection Law No. 8 (1999); Indonesian Civil Law
(“ICC”), arts. 1365 (“Every tort/unlawful act causing damage to another person
shall oblige the person causing the damage to pay compensation.”), 1366
(“Everyone shall be responsible not only for damage caused by his act, but also for
damage caused by his negligence or imprudence.”), 1367(1) (“Everyone shall be
responsible not only for damage caused by his act alone, but also for damage
caused by any person on his responsibility or goods under his supervision.”), 1370
(“In the context of . . . negligence which causes death, . . . parents of the victim,
who usually earn a living out of the deceased’s earning, are entitled to claim for
compensation . . . .”).
7
See Circular Letter of the Chairman of the Supreme Court of the Republic of
Indonesia (May 11, 1991); Guidelines of the Administration and Judicature
Technical 21 (2007 ed.); Reglement op de Burgerlijke Rechtsvordering (Rv), art.
100 (providing, “[A] foreign party, who is a non-resident or who even does not
hold any actual dwelling place in Indonesia may be claimed before Indonesian
court in relation to his obligations . . . that must be performed in Indonesia or
anywhere else to an Indonesian.”).
13
shall assist the justice pursuer and strive to overcome all obstacles and barriers to
achieve the implementation of [a] simple, quick, and low cost proceeding.”8
Appellees noted that several United States District Courts have previously
concluded, in regard to the doctrine of forum non conveniens, that Indonesia is an
available and adequate alternate forum, “dismissing cases similar to the lawsuit at
bar.” See, e.g., Gonzales v. P.T. Pelangi Niagra Mitra Int’l, 196 F. Supp. 2d 482,
489 (S.D. Tex. 2002) (concluding, in personal injury suit brought by Ecuadorian
citizens against oil company headquartered in Texas for injuries sustained in
Indonesia, that Indonesian courts provided an “available and adequate forum”).
Lumenta asserts that “the Courts of Indonesia will not adjudicate this case.”
Rather, they “consistently hold” that when an Indonesian is “injured or killed as a
result of the negligence or product defect of a foreign corporation,” the “surviving
Indonesian must sue the foreign [d]efendant in its domicile or home state.” In
support of her assertion, she directs us to excerpts, which she attached to her
response to Bell’s FNC motion, taken from the Central Jakarta District Court’s
judgments in Rukmi Indah Indiarti v. Bell Helicopter Textron, Inc., Civil Case
Numbers 97 and 144, dated September 23, 2005 and November 20, 2008.
Lumenta asserted to the trial court below that the Jakarta District Court “expressly
8
See Law No. 48, arts. 2, 4 (2009).
14
held that there is no remedy available to an Indonesian Plaintiff suing a foreign
corporation for its negligence or product defect in the Indonesia Court,” as follows:
Considering, that speaking of the Court’s competence to
examine and adjudicate any civil case, the reference is to provision in
Article 118 of HIR, that says that a suit should be filed in the domicile
of the Defendants.
Considering, that in the case aquo the Defendants are domiciled
in the jurisdiction of the United States of America, in particular, in the
[S]tate of Texas.
Considering, that for that reason, the Central Jakarta District
Court has no jurisdiction to examine and adjudicate the case aquo in
harmony with the provisions of Article 118 of HIR.
We note that the excerpts of the judgments, which appear in the record
attached to Lumenta’s response, are missing pages and appear to be incomplete.
Regardless, contrary to Lumenta’s assertion, nothing in the language of the
excerpts provided conclusively establishes that all Indonesian courts “expressly
h[o]ld that there is no remedy available to an Indonesian Plaintiff suing a foreign
corporation for its negligence or product defect in [an] Indonesia Court.” And the
record does not reflect that Lumenta submitted anything in the trial court to explain
the applicability of “Article 118 of HIR” to this case. 9
9
Although Indiarti sued Bell in Texas and appealed the district court’s summary
judgment entered against her, after her case had been “dismissed twice for want of
jurisdiction in Indonesia,” the grounds for the dismissal were not discussed in the
opinion of the court of appeals. See Idniarti v. Bell Helicopter Textron, Inc., No.
02-12-00045-CV, 2013 WL 1908291, at *1 (Tex. App.—Fort Worth May 9, 2013,
15
Appellees presented evidence demonstrating that Indonesia will allow
Lumenta recovery on her claims. Thus, the trial court could have reasonably
concluded that Indonesia is an adequate alternative forum. See Gonzales, 196 F.
Supp. 2d at 489; see also Berg v. AMF Inc., 29 S.W.3d 212, 217 (Tex. App.—
Houston [14th Dist.] 2000, no pet.) (concluding appellees demonstrated adequate
remedy under Canadian law because it allowed for some recovery).
Private and Public Interest Factors
Lumenta next argues that the balance of the pertinent private and public
interest factors weigh in favor of Texas as the appropriate forum because there are
a greater number of “key witnesses” in the United States, the helicopter was
designed and manufactured in Texas and was subject to United States Safety
regulations, and she will obtain a more expedient resolution of her suit in Texas.
See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b)(5).
Generally, the private interest factors that are to be considered are the
relative ease of access to proof, the availability of compulsory process for the
attendance of unwilling witnesses, the cost of obtaining willing witnesses, the
possibility of viewing the premises, and other practical problems that make a trial
easy, expeditious, and inexpensive. Gen. Elec., 271 S.W.3d at 691 (citing Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843 (1947)); In re Omega
pet. denied) (mem. op.). We note that the spelling of the plaintiff’s name, Rukmi
Indah Indiarti, or Idniarti, varies among the filings and judicial documents.
16
Protein, Inc., 288 S.W.3d 17, 20 (Tex. App.—Houston [1st Dist.] 2009, orig.
proceeding). The public interest factors to be considered are the administrative
difficulties related to court congestion, burdening the people of a community with
jury duty when they have no relation to the litigation, local interest in having
localized controversies decided at home, and the appropriateness of trying a case in
the forum that is at home with the law that governs the case. Gen. Elec., 271
S.W.3d at 691 (citing Gilbert, 330 U.S. at 508–09, 67 S. Ct. 839); Omega Protein,
288 S.W.3d at 21. Although the private and public interest factors are “appropriate
for most transfer cases, they are not necessarily exhaustive or exclusive” and
“none . . . can be said to be of dispositive weight.” In re Volkswagen of Am., Inc.,
545 F.3d 304, 315 (5th Cir. 2008).
Appellees assert that Indonesia is the forum with the most ease of access to
proof. It is undisputed that Indonesia is the site of the crash; the helicopter
wreckage; the INTSC representatives, who conducted the official investigation of
the crash and recovery of the wreckage; the Manado Airport employees, who
tracked and communicated with the helicopter pilot; the pilot records and flight
logs; the mechanics, who serviced the helicopter, and their maintenance records;
and the companies that owned, chartered, maintained, and operated the helicopter,
along with their records.
17
Lumenta asserts that the primary liability issue in her case is whether the
instrumentation and navigation systems of the helicopter were “working properly”
at the time of the crash. Therefore, the “key to the liability phase of the case are
the Bell witnesses, who know the design, manufacture[,] and assembly of the
Power Train and the Navigation[] and Instrumentation system of the helicopter.”
She further asserts that all of these witnesses are “Americans, living in the U.S.,”
and she directs us to Childers’s letter, in which he generally opines that there will
“most probably be a larger number of relevant witnesses who reside in the United
States.”
In support of her argument that Texas is the forum with the most significant
connection to the lawsuit, Lumenta relies on Vinson v. American Bureau of
Shipping. 318 S.W.3d 34. In Vinson, the plaintiff, who was a United States citizen
and an Alabama resident, suffered personal injuries when a derrick collapsed while
he was working on a drilling rig located on a barge in a Singapore shipyard. Id. at
38. The plaintiff sued his employer, which also owned the rig, and two of the
derrick manufacturers—all United States companies headquartered in Houston—
for products liability and negligence. Id. at 39. The defendants moved to dismiss
the lawsuit on the ground of forum non conveniens, asserting that Singapore, and
not Houston, was the forum with the most significant connection to the lawsuit. Id.
at 38–39. On appeal from the trial court’s dismissal, we held that although
18
Singapore constituted an adequate alternate forum, the private and public interest
factors weighed in favor of the Houston forum. Id. at 44, 53. We explained that
the plaintiff was a United States citizen suing three Houston-based companies for
injuries he sustained on a vessel that happened to be in Singapore at the time of his
injuries, but was, at the time of trial, located in the Gulf of Mexico. Id. at 46.
Further, the derrick collapse was investigated by a Houston firm and the relevant
witnesses and documents were located in Houston. Id. at 48. And, nearly all of
the plaintiff’s medical care took place in Texas and Alabama. Id. Notably, the
employer/owner-defendant conceded that there were no witnesses in Singapore
with relevant knowledge of the collapse, the design or fabrication of the derrick,
the condition of the barge, or the investigation. Id. And the evidence showed that
the witnesses employed by the defendants frequently traveled between Texas and
Singapore. Id. at 49.
Here, unlike in Vinson, it is undisputed that Lumenta, the plaintiff, is a
citizen of the Republic of Indonesia, as was the decedent; the crash occurred in
Indonesia; Indonesian officials conducted the investigation of the crash and
recovered the wreckage, which remains in Indonesia; the mechanics, who
maintained the helicopter, and the maintenance records, are in Indonesia; the
Manado Airport employees, who tracked and communicated with the pilot of the
helicopter, which crashed three minutes after take-off, are in Indonesia; and the
19
companies that owned, chartered, maintained, and operated the helicopter, and
their records, are in Indonesia.
In In re Air Crash Disaster Over Makassar Strait, Sulawesi, an Indonesian
airliner, traveling between the islands of Java and Sulawesi, disappeared over the
Makassar Strait. No. 09-cv-3805, 2011 WL 91037, at *1 (N.D. Ill. Jan. 11, 2011).
When the wreckage was located nine days later, all 102 passengers and crew on
board were presumed dead. Id. The Indonesian government, with assistance from
the United States National Transportation Safety Board, conducted an investigation
and issued a report citing “inadequate maintenance” and “pilot error” as
contributing causes of the crash. Id. The investigators concluded that the
airplane’s Inertial Reference System (“IRS”) had malfunctioned, which led to pilot
error. Id. Representatives of the decedents brought, in the United States District
Court, claims, alleging strict products liability and negligence, against several
United States corporations, including the manufacturer of the airplane, the
manufacturer of its IRS, a company in charge of its maintenance, and the owner
and lessor of the plane. Id. at *2. None of the decedents were United States
citizens, nor were their representatives. Id.
The Air Crash defendants moved to dismiss the suit on the ground that
Indonesia was the more convenient forum, asserting that much of the essential
evidence was in Indonesia. Id. at *3. The plaintiffs argued that the United States
20
was the more convenient forum because crucial evidence, including documents
pertaining to the design and manufacture of the plane and its component parts, as
well as testimony from those individuals who participated in these processes, were
located in the United States. Id. at *6. The court concluded that the plaintiffs’
argument “carried little weight” because the defendants had agreed to make
available all evidence in their possession at the direction of the Indonesian forum.
Id. (citing Clerides v. Boeing Co., 534 F.3d 623, 629 (7th Cir. 2008)); see also
Piper Aircraft, 454 U.S. at 258–59, 102 S. Ct. at 267 (upholding forum non
conveniens dismissal in case arising from plane crash in Scotland, notwithstanding
evidence relevant to products-liability claims in U.S. manufacturer’s possession).
The court noted that, conversely, those in possession of much of the remaining
proof, namely, the owner of the airplane and the Indonesian governmental
investigators, were in Indonesia and had not agreed to produce evidence in the
litigation. Id.
The court further noted that the Air Crash plaintiffs alleged that the airplane
had not been adequately maintained and almost all of the evidence about the
airline’s maintenance operations, and the government’s investigation thereof, was
in Indonesia. Id. Thus, the court concluded that the location of the sources of
proof weighed in favor of the Indonesian forum. Id. (citing Clerides, 534 F.3d at
21
629 (reaching similar conclusion where evidence related to airline, flight crew, and
post-accident investigation in foreign forum)).
Here, as in Air Crash, although Lumenta asserts that the crucial evidence
concerns the design and manufacture of the helicopter and its component parts,
Bell stipulated in the trial court that, “to the extent [it] is in possession, custody, or
control of any witnesses or evidence relevant to [Lumenta’s] causes of action,” it
will “make such evidence and witnesses available to [Lumenta] in Indonesia.” See
id. Although Lumenta stipulated that she would “pay all the costs of travel of
defendants’ counsel to go to Indonesia for depositions,” this would not resolve the
matter of the costs pertaining to the Indonesian witnesses’ travel to Texas.
Also, as in Air Crash, Lumenta asserts that the primary issue presented in
this case is whether the “instrumentation or navigation system of the helicopter”
was “working properly” at the time of the crash. See id. And again, we note that
the mechanics, who maintained the helicopter; the maintenance records; the
companies that owned, maintained, and operated the helicopter, and their records;
and the Indonesian officials who conducted the investigation of the crash, are in
Indonesia. See id. Thus, the location of the sources of proof weighs in favor of the
Indonesian forum.
Similarly, the location of numerous witnesses beyond the compulsory
process of Texas courts weighs in favor of the Indonesian forum. See id. at *7; see
22
also Gen. Elec., 271 S.W.3d at 691–92 (citing TEX. R. CIV. P. 176.3 (“A person
may not be required by subpoena to appear or produce documents or other things
in a county that is more than 150 miles from where the person resides or is
served.”)). Appellees assert that although “compulsory process may be available
under the Hague Convention, such process is time consuming, uncertain as to
result, and unlikely to bear fruit in time for trial.” See Pirelli Tire, 247 S.W.3d at
678–79. We note that Indonesia is not a signatory to the Hague Convention on
Service Abroad. See Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20
U.S.T. 361, art. 1; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,
698, 108 S. Ct. 2104, 2107 (1988) (noting purpose of Hague Service Convention is
“to provide a simpler way to serve process abroad, to assure that defendants sued
in foreign jurisdictions would receive actual and timely notice”).
Conversely, Andy testified that Indonesian courts have the power to compel
the appearance of the Indonesian witnesses. And the witnesses with knowledge of
the design and manufacture of the helicopter who reside in the United States will
be available in the Indonesian forum in light of appellees’ willingness to produce
them. See Air Crash, 2011 WL 91037, at *7. Thus, the comparative ability to
produce the relevant witnesses also weighs in favor of the Indonesian forum. See
id. (citing Piper Aircraft, 454 U.S. at 242, 102 S. Ct. at 259 (noting importance of
23
witnesses who could testify regarding maintenance of aircraft, training of pilot, and
investigation of crash)).
Further, appellees assert that there remain named defendants in Indonesia
who have not been served, “making it impossible for Bell to seek indemnification
against them for their alleged contribution to [Lumenta’s] damages.” See Air
Crash, 2011 WL 91037, at *7 (noting no personal jurisdiction because airline had
never operated in United States). In Piper Aircraft, as here, the plaintiffs alleged
that manufacturing defects caused a plane crash; the defendants asserted that pilot
error and owner negligence caused the crash. 454 U.S. at 259, 102 S. Ct. at 267.
Because the defendants could implead the airplane’s owner in the foreign
jurisdiction, rather than having to seek indemnity in a separate suit, the Supreme
Court held that “the problems posed by the inability to implead potential third-
party defendants clearly supported holding the trial in [the foreign forum].” Id.
Thus, this factor weighs in favor of an Indonesian forum.
Appellees also assert that the “cost, time, and scheduling difficulties to
obtain evidence and present witness testimony would be far greater if the case were
tried in Texas.” See In re Ensco Offshore Int’l Co., 311 S.W.3d 921, 926 (Tex.
2010). The United States Court of Appeals for the Fifth Circuit has held that
“[w]hen the distance between an existing venue for trial of a matter and a proposed
venue . . . is more than 100 miles, the factor of inconvenience to witnesses
24
increases in direct relationship to the additional distance to be traveled.” In re
Volkswagon AG, 371 F.3d 201, 204–05 (5th Cir. 2004). The court noted that it is
an “obvious conclusion” that it is more convenient for witnesses to testify at home
and “[a]dditional distance means additional travel time; additional travel time
increases the probability for meal and lodging expenses; and additional travel time
with overnight stays increases the time which these fact witnesses must be away
from their regular employment.” Id. at 205. Here, as to the witnesses identified by
appellees, it is apparent that it would be more convenient for them if this case is
tried in Indonesia. Moreover, Lumenta, herself, currently resides in Indonesia.
And, again, the witnesses with knowledge of the design and manufacture of the
helicopter who reside in the United States will be available in the Indonesian forum
in light of appellees’ willingness to produce them. See Air Crash, 2011 WL
91037, at *7.
Finally, in regard to the possibility of viewing the premises, given that the
crash occurred in Indonesia, this factor weighs in favor of the Indonesian forum.
And Andy testified that the Indonesian courts will provide for inspection of the
premises.
Lumenta argues that appellees did not “provide enough information to
enable the [trial court] to balance the parties’ interest[s]” because they did not
“furnish the [trial court] with a list of witnesses, their location, the substance of
25
their expected testimony, and the costs of producing such witnesses for depositions
[and] trial.” However, the forum non conveniens statute does not place the burden
of proof on either party. ENSCO Offshore Int’l, 311 S.W.3d at 927. We note that
neither party provided the trial court with a list of specific witnesses, the substance
of their testimony, or the costs of producing such witnesses. In General Electric,
the Texas Supreme Court explained that details regarding which witnesses would
be called and what evidence would be unavailable is not necessary in cases, as
here, in which the “practical problems of trying a personal injury case hundreds of
miles from the scene of the occurrence, the place where the lay witnesses reside,
and where most other evidence is located is manifest.” 271 S.W.3d at 691.
Lumenta further argues that the fact that appellees are domiciled in Texas is
“entitled to significant weight” because it is fair to infer that one’s own domicile is
not an inconvenient place to be sued. The presence of a corporate headquarters in
Texas, however, is an insufficient basis for keeping a non-resident’s suit in Texas
when, as here, all of the other factors favor another forum. See Omega Protein,
288 S.W.3d at 23; see also Volkswagen of Am., 545 F.3d at 315 (noting no single
factor of dispositive weight).
In sum, the record evidence establishes that most of the relevant documents
and witnesses in this lawsuit are located in Indonesia. Thus, we conclude that the
pertinent private interest factors weigh heavily in favor of an Indonesian forum.
26
In regard to the pertinent public interest factors, Lumenta asserts, without
directing us to any evidence, that “[t]here is no doubt that this case can be more
quickly . . . resolved in Court in Texas than it can in the Courts of Indonesia.”
Andy testified that proceedings in the Indonesian district courts “usually take 6
months to complete,” and “[c]assation and civil review proceedings usually take 1
to 2 years.”
In regard to local interest, several factors indicate that Indonesian citizens
have a greater interest in this litigation: the crash giving rise to this lawsuit
occurred in Indonesia; the helicopter was owned and operated by an Indonesian
entity, subject to Indonesian flight regulations, and predominantly carrying
Indonesian citizens; an Indonesian governmental entity recovered the wreckage
and investigated the crash; and this lawsuit involves redress for a citizen of
Indonesia. Lumenta argues that the Texas forum has local interest in her lawsuit
because the helicopter, which she alleges was defective, was manufactured in
Texas and subject to United States regulations. That an allegedly defective product
is available does not create a stake in the resolution of this controversy. See
Volkswagen of Am., 545 F.3d at 318. That the citizens of Indonesia have extensive
connections with the events that gave rise to this suit weighs in favor of dismissal.
27
Finally, we note that to the extent that there exists a conflict and a choice of
law question in this case that needs to be untangled, either forum, Texas or
Indonesia, would likely have to undertake such an analysis.
Accordingly, the trial court could have reasonably concluded that the
pertinent public interest factors weigh in favor of Indonesia as the appropriate
forum.
Remaining Considerations
Appellees assert that, without the necessary evidence and testimony, and the
ability to seek redress from other named defendants, their defense will be
prejudiced, resulting in substantial injustice. See TEX. CIV. PRAC. & REM. CODE
ANN. §.71.051(b)(3); Gen. Elec., 271 S.W.3d at 689 (“[R]equiring parties to
litigate a case such as this in Texas until it becomes clear that it is impossible to
defend the case due to unavailability of evidence and fact witnesses because they
are beyond the reach of compulsory process is a waste of private and public
resources.”). And the record does not demonstrate that Lumenta would suffer
substantial injustice as a result of the trial of her claims in Indonesia. See TEX.
CIV. PRAC. & REM. CODE ANN. § 71.051(b)(3).
Lumenta argues that the trial court’s dismissal will result in unreasonable
duplication of litigation because it results in two lawsuits: the Texas case against
the nonmoving defendants (Honeywell and NAT) would remain pending while a
28
new suit would be filed against appellees in Indonesia. See TEX. CIV. PRAC. &
REM. CODE ANN. § 71.051(b)(6). However, in General Electric, the Texas
Supreme Court held that the extent to which the trial court’s dismissal of part of an
action for forum non conveniens resulted in “fragmented or duplicated” litigation
did not turn on the trial court’s decision to grant the motions. 271 S.W.3d at 692–
93. Rather, it depended on the plaintiff’s own decision to file suits outside the
proper forum. Id. at 693.
Accordingly, the trial court could have reasonably concluded that the
remaining considerations weigh in favor of Indonesia as the appropriate forum.
In sum, the trial court could have reasonably concluded that Indonesia is an
adequate alternative forum and the pertinent public and private interest factors, and
the remaining considerations, weigh in favor of Indonesia as the appropriate forum.
Accordingly, we hold that the trial court did not err in granting appellees’ motion
to dismiss Lumenta’s claims under the doctrine of forum non conveniens. See
Gen. Elec., 271 S.W.3d at 685.
We overrule Lumenta’s second, third, and fourth issues.
Discovery and Motion for Continuance
In her first issue, Lumenta argues that the trial court erred in “granting
appellees’ motion for protection and, at the same time, denying [her] motion for
29
continuance” because the “net effect” was that she was not given a “reasonable
opportunity for discovery and development of the FNC facts.”
We review a trial court’s decision to deny a motion for continuance for a
clear abuse of discretion. Marchand, 83 S.W.3d at 800. A trial court abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law. Id.
A trial court may rule on a forum non conveniens motion only after a
hearing, with notice to all parties not less than 21 days before the date specified for
the hearing. TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(d). It “shall afford all
of the parties ample opportunity to obtain discovery of information relevant to the
motion prior to a hearing.” Id. A trial court may, however, “in the interest of
justice,” issue a protective order to “protect the movant from undue burden,
unnecessary expense, harassment, annoyance, or invasion of personal,
constitutional, or property rights.” TEX. R. CIV. P. 192.6(b); In re Alford
Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). Trial courts should limit
discovery when “the burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the case, the amount in controversy,
the parties’ resources, the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues.” Alford Chevrolet-
Geo, 997 S.W.2d at 181 (citing TEX. R. CIV. P. 192.4(b)). And a trial court may
30
limit discovery pending resolution of threshold issues, such as forum non
conveniens. Id.; see also Piper Aircraft, 454 U.S. at 258, 102 S. Ct. at 267 (noting
requirement of extensive investigation would defeat purpose of forum non
conveniens motion). Although a trial court has broad discretion to schedule and
define the scope of discovery, it abuses its discretion if it acts unreasonably. See In
re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998).
Here, Lumenta filed the instant suit on August 2, 2013 and then served
appellees with requests for disclosure. And she served Bell with interrogatories
and requests for production and admissions. In response, Bell produced Andy’s
affidavit and the INTSC crash reports. On November 20, 2013, appellees filed
motions for protection and for dismissal of Lumenta’s claims on the ground of
forum non conveniens.
The record shows that the trial court, at the December 16, 2013 hearing on
appellees’ motion for protection, orally granted the motion “with regard to merit
discovery on the case in its entirety,” but “except[ed] that for discovery related to
forum non conveniens.” The trial court instructed the parties to immediately
convene and determine “what’s forum non, and what’s merit.” The parties agreed
to meet preliminarily and that Lumenta would later submit interrogatories asking
appellees to list their witnesses. The trial court approved, noting that it “would
work with [the parties] if there [was] something that [was] intertwined” and needed
31
to be “flush[ed] out.” Bell asserts that on December 30, 2013, it responded to
Lumenta’s supplemental discovery requests, and, thereafter, she served no new
written discovery.
On February 6, 2014, Lumenta, in Texas, took the deposition of Harold
Barrentine, a Bell safety investigator, who had previously flown to Indonesia at the
request of the INTSC to assist in the investigation of the crash and was the only
U.S. resident involved in the investigation. The next day, Lumenta filed a verified
motion to continue the hearing on appellees’ FNC motion, requesting forty-five
days to review Barrentine’s testimony and respond to appellees’ FNC motion.
On February 10, 2014, Lumenta filed a response to appellees’ FNC motion
and a supplemental motion for continuance, requesting ninety days to “submit a
detail[ed] record of the Indiarti holdings.” Also, on February 10, 2014, the trial
court granted appellees’ FNC motion and dismissed Lumenta’s claims.
Lumenta argues that the trial court erred in granting appellees’ motion for
protection because it “ke[pt] [her] from engaging in necessary discovery on the
FNC motion.” The record shows, however, that the trial court expressly granted
appellees’ motion for protection “with regard to merit discovery on the case in its
entirety,” but “except[ed] that for discovery related to forum non conveniens.”
Thus, the trial court did not prohibit or restrict discovery related to the FNC
motion.
32
Lumenta next argues that the trial court erred in denying her motion for
continuance because “it is patently clear that [she] was not given adequate time for
discovery.” Childers, in his letter, which Lumenta attached to her supplemental
motion, asserted that it would “take several months to examine the wreckage and
interview the people associated with the manufacture, operation and maintenance
of the helicopter, both in the United States and Indonesia.” And Lumenta asserts
that Barrentine “really knew nothing about the FNC merits,” which “illustrates
why [she] needed to depose other Bell witnesses from the U.S. and the [t]rial
[c]ourt seriously erred in not letting [her] do so.”
The record reflects that Lumenta, in October and November 2013, served
appellees with written discovery requests. Bell asserts that it responded to her
supplemental discovery requests on December 30, 2013, and thereafter she served
no new written discovery. The record does not show that Lumenta ever filed a
motion to compel or otherwise attempted to obtain any further written discovery.
In January 2014, she noticed Barrentine’s deposition, and the record does not
reflect that she sought to depose any other witnesses. Further, Lumenta did not, in
either her motion for continuance or supplement, specify the forum-non-
conveniens-related discovery that needed to be completed. Rather, she globally
sought more time and requested forty-five days to review Barrentine’s testimony
and respond to appellees’ FNC motion, and ninety days to “submit a detail[ed]
33
record of the Indiarti holdings.” Lumenta, in her motion for continuance, which
she filed three days before the February 10, 2014 hearing on appellees’ FNC
motion, argued that she could not respond to appellees’ FNC motion because “all
of the Defendants” had “not yet responded fully” to her requests for production and
she needed more time to review the transcript of Ballentine’s deposition.
However, the record shows that she filed her response to the FNC motion on
February 10, 2014.
In support of her argument that the trial court erred in denying her motion
for continuance, Lumenta relies on McInnis v. Mallia, 261 S.W.3d 197 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). In McInnis, however, the issue
presented was whether the trial court erred in granting the defendants a no-
evidence summary judgment without affording the plaintiff an “adequate time for
discovery” under the summary-judgment rules. Id. at 200 (applying TEX. R. CIV.
P. 166a(i)). Generally, a summary judgment is a decision on the merits. See
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex. 1995). Whereas,
“forum non conveniens is a non-merits basis for dismissal because it is a
determination that the merits of the claims should be decided elsewhere.”
Schippers v. Mazak Props., Inc., 350 S.W.3d 294, 296 (Tex. App.—San Antonio
2011, pet. denied) (citing Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549
U.S. 422, 432, 127 S. Ct. 1184, 1192 (2007)). And a motion to dismiss for forum
34
non conveniens does not call for a detailed development of the entire case. Camejo
v. Ocean Drilling & Exploration, 838 F.2d 1374, 1380 n.17 (5th Cir. 1988).
Rather, it merely requires “enough information to enable the [trial] court to balance
the parties’ interests.” Piper Aircraft, 454 U.S. at 258, 102 S. Ct. at 267.
“The scope of discovery is largely within the discretion of the trial court.”
Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). And we must
defer to that discretion, absent abuse. See Colonial Pipeline, 968 S.W.2d at 941.
Here, the trial court’s decision to deny Lumenta’s motion for continuance was not
arbitrary or unreasonable and was not made without reference to guiding rules and
principles. See Marchand, 83 S.W.3d at 800.
Accordingly, we hold that the trial court did not err in granting appellees’
motion for protection and denying Lumenta’s motion for continuance.
We overrule Lumenta’s first issue.
35
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
36