Leon v. Millon Air Inc.

• Citation: 251 F.3d 1305
• Decision Date: 21 May 2001
• Docket Number: No. 00-11938,00-11938
• Parties: (11th Cir. 2001) JULIO IGNACIO LOURIDO LEON, GINA MERCEDES VALDIVIESO SANTOS, et al., Plaintiffs-Appellants, v. MILLON AIR INC., a Florida corporation, MILLON AIR CARGO, INC., a Florida corporation et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1305

251 F.3d 1305 (11th Cir. 2001)

JULIO IGNACIO LOURIDO LEON, GINA MERCEDES VALDIVIESO SANTOS, et al., Plaintiffs-Appellants, v. MILLON AIR INC., a Florida corporation, MILLON AIR CARGO, INC., a Florida corporation et al., Defendants-Appellees.

No. 00-11938.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

May 21, 2001.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 98-07128-CV-LCN

Before EDMONDSON, FAY and NEWMAN^*, Circuit Judges.

NEWMAN, Circuit Judge:

This appeal concerns application of the doctrine of forum non conveniens in the context of a fatal airplane crash. The appeal is from the May 17, 1999, order of the District Court for the Southern District Florida (Lenore C. Nesbitt, District Judge) dismissing on the ground of forum non conveniens a suit by Julio Ignacio Lourido Leon and numerous other plaintiffs, all of whom are citizens of Ecuador. The suit was brought against Millon Air, Inc. ("Millon Air"), an air cargo carrier and other defendants whom the plaintiffs claim are responsible for the October 22, 1996, crash of a cargo-carrying aircraft owned and operated by Millon Air. The plane, which had no passengers, crashed shortly after take-off from Manta, Ecuador. In addition to killing the three members of the crew (who are not plaintiffs) the crash killed 30 residents of Ecuador living in the neighborhood of the crash site, and injured many others. The appeal is also from the District Court's March 29, 2000, order denying the Plaintiffs' motions for new trial under Fed. R. Civ. P. 59 and 60. We conclude that the District Judge did not exceed her discretion in dismissing the suit, but that the dismissal should have been appropriately conditioned. We therefore modify the order of dismissal, affirm the order as modified, and affirm the denial of the motion for new trial.

Procedural History

More than 700 people allegedly injured by the crash have filed approximately 100 lawsuits in state and federal courts in the United States. In 1997, thirty-six of the cases in the Southern District of Florida were consolidated before Judge Nesbitt under Case No. 96-3165, which is referred to in the pending litigation as Cedeno v. Millon Air (although its caption is Joza, et al v. Millon Air). On January 12, 1998, Judge Nesbitt dismissed the consolidated Cedeno cases on the ground of forum non conveniens. The Court retained jurisdiction "over the enforcement of the concessions made by the Defendants and approved by this Court." Cedeno Op. at 12. These were (1) concession of "primary liability for damage caused" by the crash, (2) acceptance of service and jurisdiction of the Ecuadorian courts, (3) waiver of statute of limitations defenses, and (4) satisfaction of any final judgments entered by the Ecuadorian courts. Id. The Cedeno plaintiffs timely appealed.

On January 27, 1998, the Congress of Ecuador enacted "Law No. 55," which provides:

Without affecting its literal meaning, articles 27, 28, 29 and 30 of the Civil Procedure Law, are hereby interpreted so that, in case of international concurrent jurisdiction, the plaintiff can freely choose to demand [i.e., to file a complaint], in Ecuador or in another country, with the sole exception of cases which -- pursuant to an explicit provision of law, must be resolved by Ecuadorian Judges, like the divorce of an Ecuadorian citizen . . . . In the case that the demand is filed outside of Ecuador, the national competence and the jurisdiction of the Ecuadorian Judges on the case will be terminated forever.

In December 1997, just prior to the enactment of Law No. 55, a Broward County state court dismissed a consolidated action brought against Millon Air by 106 Ecuadorans allegedly injured by the crash. Some of these plaintiffs subsequently filed suit in an Ecuadorian court of first instance, which in April 1998 dismissed the case because of Law No. 55.

This development prompted the Cedeno plaintiffs in September 1998 to ask this Court to stay the Cedeno appeal and remand the case to the District Court. Meanwhile, on October 13, 1998, the Superior Court of Justice of Portoviejo (Ecuador) reversed the trial court's decision in the case involving the 106 plaintiffs in the Broward County suit, holding that Law No. 55 did not apply to cases that a United States court had dismissed because of forum non conveniens. "It should be supposed that law 55 is in effect when a foreign judge has taken up the cause and is hearing it, but not in a case in which the foreign judge has refused to hear the lawsuit, as has done the Broward County Judge in his decision."

Ultimately, this Court remanded the Cedeno litigation to the District Court, without adjudicating the correctness of the forum non conveniens dismissal.

On October 15, 1998, the Plaintiffs in the pending case ("Plaintiffs" or "Leon Plaintiffs") filed their complaint in the Southern District of Florida. The Defendants and counsel were the same as in the Cedeno action. In December 1998, the Defendants filed a motion to dismiss the Leon action based on forum non conveniens. The motion included affidavits from American and Ecuadorian lawyers, vouching for the adequacy of the Ecuadorian legal system. In April 1999, the Plaintiffs responded to the Millon Air motion, first by informal letter and then by a formal pleading. In their formal Response, the Plaintiffs argued that the Ecuadorian legal system was so fragile that it was not an effective forum to decide the case. They alleged that the Ecuadorian legal system was in turmoil and had been recently shut down by a strike of the judges. The Plaintiffs said they were "rely[ing] on prior filings" (presumably from the Cedeno case). The Leon plaintiffs also discussed the possibility (in their informal letter, which was appended as an exhibit to the formal pleading) that Law No. 55 had eliminated the jurisdiction of the Ecuadorian courts.

On May 17, 1999, Judge Nesbitt entered an order dismissing the case on the ground of forum non conveniens. Noting the marked similarity between the Leon and the Cedeno cases, she relied primarily on her reasons for dismissing Cedeno (described below), adding only explicit consideration of Law No. 55. On that issue, she acknowledged that Law No. 55 had been enacted since her Cedeno decision, but said that the Ecuadorian appellate court had ruled that Law No. 55 did not bar an Ecuadorian court from hearing claims dismissed because of forum non conveniens. Judge Nesbitt also noted that Millon Air had given the Leon Plaintiffs the same promises given to the Cedeno Plaintiffs. She therefore dismissed the case, although she did not explicitly make Millon Air's concessions a condition of her dismissal order, as she had done in Cedeno.

The Leon Plaintiffs subsequently moved for a new trial, alleging newly discovered evidence that Millon Air had denied liability in one of the Ecuadorian actions, in violation of their Cedeno promise to contest only damages. The District Court rejected this motion, on the ground that the Ecuadorian action where Millon Air was contesting liability did not involve a Cedeno plaintiff.

The Cedeno Decision

In dismissing the pending case, Judge Nesbitt relied primarily on the reasons she had given for dismissing the Cedeno case. In Cedeno, Judge Nesbitt required Millon Air to show that there was an adequate alternative forum, that the balance of "private interests" and "public interests" weighed in favor of dismissing the litigation to the alternative forum (with the public interests coming into play only where the private interests were at or near "equipoise"), and that there would be no inconvenience or prejudice to plaintiff in filing in the foreign forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 266-69 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-09 (1947).

Judge Nesbitt found that Millon Air had made each of the required showings. First, she found that the Ecuadorian courts were an adequate alternative forum. She acknowledged that there had been a strike by judges and that some judges had been removed from the Supreme Court, but concluded, based on Millon Air affidavits, that the strike was over and that the "instability has been resolved and the Ecuadorian legal system is again functioning normally." Cedeno Op. at 4 (unreported). The fact that punitive damages would be unavailable in Ecuador was of no moment because the "potential for a smaller damage award is not a basis for the denial" of a forum non conveniens motion; the remedy provided by the Ecuadorian courts would not be "'so clearly inadequate or unsatisfactory that it is no remedy at all.'" Id. at 6 (quoting Piper, 454 U.S. at 254).

Second, Judge Nesbitt weighed private interests, i.e., location of proof, availability of compulsory process, and other practical problems. Judge Nesbitt found that the private interests weighed in favor of dismissing the case, primarily because the witnesses as to damages (the only issue in the case, since Millon Air conceded liability) were located in Ecuador, beyond the reach of the District Court's compulsory process, and "presumably" most of them spoke only Spanish. Judge Nesbitt conceded that a plaintiff's choice of forum was accorded deference, particularly where the forum was the defendant's home forum. However, Judge Nesbitt noted that foreign plaintiffs litigating in the United States were entitled to "'less deference'" in their forum choice. Id. at 9 (quoting Piper, 454 U.S. at 256). "Accordingly, the Plaintiffs' choice of forum in this case does not deserve any deference other than considering it in the context of the overall convenience of the parties and in that light, Ecuador is still the most convenient forum for the parties to try this case." Id.

Next, the District Court considered the public interests, i.e., "administrative difficulties stemming from court congestion, the interest in having...