Cheng v. Boeing Co.

• Decision Date: 20 June 1983
• Docket Number: 82-4284 and 82-4288,Nos. 82-4267,82-4283,NAI-CHAO,s. 82-4267
• Parties: 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, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, et al., Defendants-Appellees. to 82-4302.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1406

708 F.2d 1406

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.

Argued and Submitted April 12, 1983.

Decided June 20, 1983.

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 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.

                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 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 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:

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.

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 alternative forums within the United States, the common law governs when it is a choice between a United States and a foreign forum. Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 670 (9th Cir.1975). When a court decides in its discretion that a case before it should more appropriately be tried in a foreign forum, it may dismiss the case. Miskow v. Boeing Co., 664 F.2d 205, 208 (9th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982).

In Gulf Oil v. Gilbert the Supreme Court set forth the factors which a trial court must consider in ruling on a motion to dismiss on the ground of forum non conveniens. The Court enumerated both the "private interest factors" affecting the convenience of the litigants and the "public interest factors" affecting the convenience of the forum. The private interest factors include "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." 330 U.S. at 508, 67 S.Ct. at 843. The public interest factors include the administrative difficulties flowing from court congestion; the local interest in having localized controversies resolved at home; the interest in having the trial of a diversity case in a forum that is familiar with the law that must govern the action; the avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 508-09, 67 S.Ct. at 843.

The Court in Gilbert noted that the plaintiff's choice of forum should not be disturbed ...