708 F.2d 1406 (9th Cir. 1983), 82-4267, Cheng v. Boeing Co.

Docket Nº82-4267, 82-4283, 82-4284 and 82-4288 to 82-4302.
Citation708 F.2d 1406
Party NameNina CHENG, Individually and as personal representative of the Estate of Thomas T.O. Cheng, Deceased, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, et al., Defendants-Appellees. Shunsaku HARADA and Masa Harada, in their individual capacities and as Heirs at Law and Legal Successors of Akiko Harada, Deceased, et al., Plaintiffs-Appellants, v
Case DateJune 20, 1983
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1406

708 F.2d 1406 (9th Cir. 1983)

Nina CHENG, Individually and as personal representative of

the Estate of Thomas T.O. Cheng, Deceased, et al.,

Plaintiffs-Appellants,

v.

The BOEING COMPANY, et al., Defendants-Appellees.

Shunsaku HARADA and Masa Harada, in their individual

capacities and as Heirs at Law and Legal

Successors of Akiko Harada, Deceased, et

al., Plaintiffs-Appellants,

v.

The BOEING COMPANY, et al., Defendants-Appellees.

LUI SU NAI-CHAO, et al., Plaintiffs-Appellants,

v.

The BOEING COMPANY, et al., Defendants-Appellees.

Nos. 82-4267, 82-4283, 82-4284 and 82-4288 to 82-4302.

United States Court of Appeals, Ninth Circuit

June 20, 1983

Argued and Submitted April 12, 1983.

Page 1407

Paul H. Due, Due, Dodson, deGravelles, Baton Rouge, La., Arthur S. Katayama, Los Angeles, Cal., for plaintiffs-appellants.

Michael M. Marron, Marron, Reid & Sheehy, David W. Gordon, Bronson, Bronson & McKinnon, San Francisco, Cal., Frank A. Silane, Condon & Forsyth, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, SNEED, and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

The Cheng and Harada plaintiffs brought actions against Boeing, United Airlines, and Far Eastern Air Transport in the U.S. District Court for the Northern District of

Page 1408

California on claims arising out of the crash of a commercial airliner in Taiwan in 1981. Defendants asserted that Taiwan was a more convenient forum and moved that plaintiffs' cause be dismissed on the ground of forum non conveniens. The district court granted defendants' motion. Plaintiffs appeal.

The crash involved a Boeing 737-200 operated by Far Eastern Air Transport. Boeing manufactured the plane in 1968 and United Airlines operated it within the United States until 1976, when it sold it to Far Eastern. From 1976 until the day of the crash, Far Eastern operated and serviced the aircraft. Far Eastern performed all maintenance in accordance with a program authorized by Boeing. At the time of the accident Boeing had trained 54 members of Far Eastern's maintenance staff.

The crash occurred on August 22, 1981, during an intra-Taiwan flight and killed all aboard. The airplane exploded shortly after take-off at 20,000 feet, scattering debris over a wide area of rugged terrain south of Taipei. The China Civil Aeronautics Authority, with the assistance of the U.S. National Transportation Safety Board, Boeing, and United, conducted a full-scale investigation of the accident. Much of the wreckage was taken to the United States for examination and testing but was later returned to Taiwan. It remains there, although Boeing retains some fragments.

Four days after the district court granted Boeing's motion to dismiss on grounds of forum non conveniens, the Taiwan Ministry of Communications announced the results of the investigation. The Authority found, inter alia, that there were no eyewitnesses to the accident, that there was no pilot or crew error, that there were no maintenance defects, that there were no adverse weather conditions at the time of the crash, and that the cause of the accident was the rupture under pressure of the body of the aircraft due to cracks in its structure caused by rust and corrosion. The Authority noted that the U.S. Federal Aviation Agency had documented 237 instances of similar cracks in 154 Boeing planes of the same type.

This appeal consolidates nineteen separate wrongful death actions filed by representatives of passengers killed in the accident. The passengers included citizens of Taiwan, Japan, Canada, and the United States. At the time Boeing's motion to dismiss was argued before the district court, most of the Cheng plaintiffs were Taiwanese. Among the plaintiffs, however, were seven Americans and four Taiwanese residents of the United States. Boeing and United have since settled with most of these eleven plaintiffs and, at this time, only a small number of plaintiffs who are either citizens or residents of the United States remain active in this litigation. The Harada plaintiffs are forty-six Japanese citizens, suing in behalf of eighteen Japanese decedents.

This litigation began when the Cheng plaintiffs filed three complaints in the Northern District of California naming Boeing and other American corporations as defendants. At the same time they sought to depose two Boeing employees. Boeing successfully moved to quash the notices of deposition and to stay discovery pending its filing of a motion to dismiss on the ground of forum non conveniens.

Boeing filed a motion to dismiss or, in the alternative, to transfer the case to the Western District of Washington. Ten days later the Harada plaintiffs filed fifteen actions, naming Boeing, United Airlines, and Far Eastern Air Transport as defendants. On that day the district court granted Boeing's motion to quash the notices of deposition and stayed all discovery.

On January 11, 1982, the Cheng plaintiffs amended their complaint, adding more plaintiffs, dropping all the original defendants but Boeing, and adding United as a defendant. On January 22 Boeing and United argued the motion to dismiss on the ground of forum non conveniens. On March 1 Far Eastern answered the Harada complaint, raising forum non conveniens as an affirmative defense. With Boeing's and United's motion under submission, the court ordered a stay on all matters pending decision on the motion. On March 8 and 12

Page 1409

plaintiffs moved for leave to file additional documents or, in the alternative, for an evidentiary hearing on the pending motion. After reviewing plaintiffs' documents, the court denied the motion.

On April 13, 1982, the court granted defendants' motion to dismiss on the ground of forum non conveniens but conditioned the dismissal on Boeing's and United's agreement to the following four-part undertaking:

  1. The courts of Taiwan have, and will assert, jurisdiction over these actions.

  2. Defendants will submit themselves to the jurisdiction of the Taiwanese court, and will make their employees available to testify in Taiwan.

  3. Defendants agree to waive any statute of limitations claims arising from the date that these actions were filed to the date that this Order dismissing the complaints becomes effective.

  4. Defendants consent to satisfy any judgment that may be rendered against them in Taiwan.

The dismissal as to Far Eastern was unconditional.

STANDARD OF REVIEW

Our standard of review is narrow:

The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981).

ISSUE

The only issue is whether the district court abused its discretion in dismissing these cases on the ground of forum non conveniens. We affirm.

ANALYSIS

Whether the district court abused its discretion by granting defendants' motion to dismiss on the ground of forum non conveniens depends on the application to the facts of this case of the doctrine which the Supreme Court enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The district court found that the facts in Reyno were sufficiently analogous to the facts in this case to justify dismissal on grounds of forum non conveniens. Plaintiffs argued on appeal that there are sufficient differences between the two cases to justify a contrary result in the case now before us and that the district court's failure to recognize the consequences of these differences was an abuse of discretion.

The doctrine of forum non conveniens permits a court to decline to exercise its jurisdiction for prudential reasons. Although 28 U.S.C. Sec. 1404(a) codifies the rule of forum non conveniens when the choice is between...

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137 practice notes
  • 220 F.R.D. 582 (S.D.Iowa 2004), 4:03-cv-40648, Schweyer Import-Schnittholz GmbH v. Genesis Capital Fund, L.P.
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • April 22, 2004
    ...because the diversity statute does not provide for a foreign plaintiff suing a foreign defendant. Id. at 991 (citing Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th The court went on to reason: Moreover, if Nike had filed this suit as the sole plaintiff, it could not have relied on the distri......
  • 434 F.Supp.2d 766 (C.D.Cal. 2006), CV 02 2530, Van Schijndel v. The Boeing Co.
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • May 1, 2006
    ...at 238-41, 257-61], 102 S.Ct. 252, Lueck[ v. Sundstrand Corp., 236 F.3d 1137, 1143-48 (9th Cir.2001) ], Page 771 and Cheng[ v. Boeing Co. 708 F.2d 1406, 1410-12 (9th Cir.1983) ], it is far from evident that there is any single alternative forum more convenient than the United States. ( Id. ......
  • 159 B.R. 984 (S.D.Fla. 1993), 90-1755, Carnival Cruise Lines, Inc. v. Oy Wartsila Ab
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • October 19, 1993
    ...an inadequate forum), nor is it improper to weigh the competing opinions of experts in assessing foreign law. See Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 Moreover, we fully expect that Defendants will continue to provid......
  • 598 F.Supp.2d 875 (N.D.Ill. 2009), 08 C 3056, Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • February 24, 2009
    ...filing fees amounting to one percent of claim and an additional one-half percent for each appeal), aff'd sub nom. Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir.1983). Other circuits have reached similar conclusions. See, e.g., Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1353 (1st Cir.1992......
  • Request a trial to view additional results
133 cases
  • 220 F.R.D. 582 (S.D.Iowa 2004), 4:03-cv-40648, Schweyer Import-Schnittholz GmbH v. Genesis Capital Fund, L.P.
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • April 22, 2004
    ...because the diversity statute does not provide for a foreign plaintiff suing a foreign defendant. Id. at 991 (citing Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th The court went on to reason: Moreover, if Nike had filed this suit as the sole plaintiff, it could not have relied on the distri......
  • 434 F.Supp.2d 766 (C.D.Cal. 2006), CV 02 2530, Van Schijndel v. The Boeing Co.
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • May 1, 2006
    ...at 238-41, 257-61], 102 S.Ct. 252, Lueck[ v. Sundstrand Corp., 236 F.3d 1137, 1143-48 (9th Cir.2001) ], Page 771 and Cheng[ v. Boeing Co. 708 F.2d 1406, 1410-12 (9th Cir.1983) ], it is far from evident that there is any single alternative forum more convenient than the United States. ( Id. ......
  • 159 B.R. 984 (S.D.Fla. 1993), 90-1755, Carnival Cruise Lines, Inc. v. Oy Wartsila Ab
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Florida
    • October 19, 1993
    ...an inadequate forum), nor is it improper to weigh the competing opinions of experts in assessing foreign law. See Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 Moreover, we fully expect that Defendants will continue to provid......
  • 598 F.Supp.2d 875 (N.D.Ill. 2009), 08 C 3056, Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • February 24, 2009
    ...filing fees amounting to one percent of claim and an additional one-half percent for each appeal), aff'd sub nom. Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir.1983). Other circuits have reached similar conclusions. See, e.g., Mercier v. Sheraton Int'l, Inc., 981 F.2d 1345, 1353 (1st Cir.1992......
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4 books & journal articles
  • Federalism, forum shopping, and the foreign injury paradox.
    • United States
    • William and Mary Law Review Vol. 51 Nbr. 1, October 2009
    • October 1, 2009
    ...of American resident's claim arising from plane crash in Spain allegedly caused by defects in a Boeing plane); Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (affirming forum non conveniens dismissal of claims by American residents against an American corporation because Taiwan wa......
  • Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power
    • United States
    • Iowa Law Review Nbr. 91-3, March 2006
    • May 1, 2006
    ...to be out of proportion to plaintiff's convenience, which may be shown to be slight or nonexistent'" (quoting Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir. 1983))), with Iragorri v. United Techs. Corp., 274 F.3d 65, 71-72 (2d Cir. 2001) (en banc) (embracing a sliding scale of pres......
  • Foreign corporations: forum non conveniens and change of venue.
    • United States
    • Defense Counsel Journal Vol. 61 Nbr. 4, October 1994
    • October 1, 1994
    ...U.S. 962 (1991). (11.) 677 F.Supp. 803 (E.D. Pa. 1987), aff'd, 383 F.2d 1206 (3d Cir. 1988). (12.) 720 F.2d 224 (I st Cir. 1983). (13.) 708 F.2d 1406 (9th Cir.), cert. denied, 464 U.S. 1017 (1983). (14.) 637 F.2d 775 (D.C. Cir. 1980), cert. denied, 454 U.S. 1 128 (198 1). (15.) 472 F.Supp. ......
  • Jurisdictional theory "made in Japan": convergence of U.S. and Continental European approaches.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 37 Nbr. 5, November 2004
    • November 1, 2004
    ...for UA in Mukoda in a Japanese court. (113.) Nai-Chao v. Boeing Co., 555 F. Supp. 9, 10-11 (N.D. Cal. 1982), aff'd, Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983). (114.) Id. at 11. (115.) Mukoda v. Boeing Co., 1196 HANREI JIHO 87, 87-88, 604 HANREI TAIMUZU 138, 138-39 (Tokyo Dist. Ct.,......