274 F.3d 65 (2nd Cir. 2001), 99-7481, Iragorri v United Technologies Corp.

Docket Nº:99-7481
Citation:274 F.3d 65
Party Name:HAIDEE IRAGORRI, individually and as ancillary administratrix of the estate of Mauricio Iragorri, Patricia Iragorri and Maurice Iragorri, Plaintiffs-Appellants, v. UNITED TECHNOLOGIES CORPORATION AND OTIS ELEVATOR COMPANY, Defendants-Appellees.
Case Date:December 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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274 F.3d 65 (2nd Cir. 2001)

HAIDEE IRAGORRI, individually and as ancillary administratrix of the estate of Mauricio Iragorri, Patricia Iragorri and Maurice Iragorri, Plaintiffs-Appellants,



No. 99-7481

United States Court of Appeals, Second Circuit

December 4, 2001

Argued: June 6, 2001

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ANTHONY J. NATALE, Pepe & Hazard LLP, Hartford, CT (Richard F. Wareing on the brief), for Plaintiffs-Appellants.

ALLAN B. TAYLOR, Day, Berry & Howard LLP, Hartford, CT (Edward W. Mayer, Jr., and Patrick Noonan, Delaney, Zemetis, Donahue, Durham & Noonan, P.C., Wallingford, CT, on the brief), for Defendants-Appellees.

Rory O. Millson and Rowan D. Wilson, Cravath, Swaine & Moore, New York, NY, on the brief for Amici Curiae Royal Dutch Petroleum Company and the "Shell" Transport and Trading Company, p.l.c.


LEVAL and JOSE A. CABRANES, Circuit Judges.

Our court convened this rehearing en banc not out of dissatisfaction with the panel's disposition, Iragorri v. Int'l Elevator, Inc., 243 F.3d 678 (2d Cir. 2001) (per curiam), but because we believed that it would be useful for the full court to review the relevance of a plaintiff's residence in the United States but outside the district

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in which an action is filed when the defendants seek dismissal for forum non conveniens, especially in light of our court's recent decisions in Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142 (2d Cir. 2000), Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), and DiRienzo v. Philip Services Corp., 232 F.3d 49 (2d Cir. 2000).1 The en banc order states that we convene to answer the question common to those decisions and the instant case, namely, "what degree of deference should the district court accord to a United States plaintiff's choice of a United States forum where that forum is different from the one in which the plaintiff resides." Iragorri v. United Techs. Corp., 243 F.3d 678, No. 99-7481, at 1-2 (2d Cir. Mar. 22, 2001) (order granting rehearing en banc).2


On October 3, 1992, Mauricio Iragorri -- a domiciliary of Florida since 1981 and a

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naturalized United States citizen since 1989 -- fell five floors to his death down an open elevator shaft in the apartment building where his mother resided in Cali, Colombia. Mauricio left behind his widow, Haidee, and their two teenaged children, Patricia and Maurice, all of whom are the plaintiffs in this action. The plaintiffs have been domiciliaries of Florida since 1981. At the time of the accident, however, Haidee and the two children were living temporarily in Bogota, Colombia, because the children were attending a Bogota school as part of an educational exchange program sponsored by their Florida high school. Iragorri, 243 F.3d at 679-80; (Iragorri-Smith Aff. P 3).

The Iragorris brought suit in the United States District Court for the District of Connecticut (Arterton, J.) on September 30, 1994. The named defendants were Otis Elevator Company ("Otis"), a New Jersey corporation with its principal place of business in Connecticut; United Technologies Corporation ("United") -- the parent of Otis -- a Delaware corporation whose principal place of business is also in Connecticut; and International Elevator, Inc. ("International"), a Maine corporation, which since 1988 had done business solely in South America. It is alleged that prior to the accident, an employee of International had negligently wedged open the elevator door with a screwdriver to perform service on the elevator, thereby leaving the shaft exposed and unprotected.

The complaint alleged two theories of liability against defendants Otis and United: that (a) International acted as an agent for Otis and United so that the negligent acts of its employee should be imputed to them, and (b) Otis and United were liable under Connecticut's products liability statute for the defective design and manufacture of the elevator which was sold and installed by their affiliate, Otis of Brazil.

On February 12, 1998, the claims against International Elevator were transferred by Judge Arterton to the United States District Court for the District of Maine. That district court then dismissed the case against International Elevator on forum non conveniens grounds, and the First Circuit affirmed. Iragorri v. Int'l Elevator, Inc., 203 F.3d 8 (1st Cir. 2000).

Defendants Otis and United meanwhile moved to dismiss under forum non conveniens, arguing that plaintiffs' suit should be brought in Cali, Colombia, where the accident occurred. On March 31, 1999, Judge Arterton granted the motion and dismissed the claims against Otis and United on the condition that they agree to appear in the courts of Cali. Iragorri v. United Techs. Corp., 46 F.Supp.2d 159 (D. Conn. 1999).

A panel of this Court vacated and remanded to the District Court for reconsideration in light of our recent decisions on forum non conveniens. Iragorri, 243 F.3d at 680-81. Nearly simultaneously, this Court issued the order to hear the case en banc.


I. The Degree of Deference Accorded to Plaintiff's Choice of Forum

The United States Supreme Court authorities establish various general propositions about forum non conveniens. We are told that courts should give deference to a plaintiff's choice of forum. "Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil

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Corp. v. Gilbert, 330 U.S. 501, 508, 91 L.Ed. 1055, 67 S.Ct. 839 (1947). We understand this to mean that a court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiff's choice of forum will stand unless the defendant meets the burden of demonstrating the points outlined below.

At the same time, we are led to understand that this deference is not dispositive and that it may be overcome. Notwithstanding the deference, "dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 n.23, 70 L.Ed. 2d 419, 102 S.Ct. 252 (1981).

We are instructed that the degree of deference given to a plaintiff's forum choice varies with the circumstances. We are told that plaintiff's choice of forum is generally entitled to great deference when the plaintiff has sued in the plaintiff's home forum. Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 91 L.Ed. 1067, 67 S.Ct. 828 (1947); see also Piper, 454 U.S. at 255-56, 256 n.23. But we are also instructed that the choice of a United States forum by a foreign plaintiff is entitled to less deference. Piper, 454 U.S. at 255-56 ("The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. . . .When the plaintiff is foreign, . . . [the] assumption [favoring the plaintiff's choice of forum] is much less reasonable.").

In our recent cases on the subject of forum non conveniens, our Court has faced situations involving a fact pattern not directly addressed by the Supreme Court: a United States resident plaintiff's suit in a U.S. district other than that in which the plaintiff resides. As a full court, we now undertake to apply to this general fact pattern the principles that we find implicit in Supreme Court precedents.

We regard the Supreme Court's instructions that (1) a plaintiff's choice of her home forum should be given great deference, while (2) a foreign resident's choice of a U.S. forum should receive less consideration, as representing consistent applications of a broader principle under which the degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations.

The Supreme Court explained in Piper that the reason we give deference to a plaintiff's choice of her home forum is because it is presumed to be convenient: "When the home forum has been chosen, it is reasonable to assume that this choice is convenient." Id. at 255-56. In contrast, when a foreign plaintiff chooses a U.S. forum, it "is much less reasonable" to presume that the choice was made for convenience. Id. at 256. In such circumstances, a plausible likelihood exists that the selection was made for forum-shopping reasons, such as the perception that United States courts award higher damages than are common in other countries. Even if the U.S. district was not chosen for such forum-shopping reasons, there is nonetheless little reason to assume that it is convenient for a foreign plaintiff.

Based on the Supreme Court's guidance, our understanding of how courts should address the degree of deference to be given to a plaintiff's choice of a U.S. forum is essentially as follows: The more it appears that a domestic or foreign plaintiff's choice of forum has been dictated by

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reasons that the law recognizes as valid, the greater the deference that will be given to the plaintiff's forum choice. Stated differently, the greater the plaintiff's or the lawsuit's bona fide connection3 to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens.4 Thus, factors that argue against forum non conveniens dismissal include the convenience of the plaintiff's residence in relation to the chosen forum, the availability of...

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