Kolawole v. Sellers

• Decision Date: 21 July 2017
• Docket Number: Nos. 15-13720 & 15-15801,s. 15-13720 & 15-15801
• Citation: 863 F.3d 1361
• Parties: Babasola KOLAWOLE, et al., Plaintiffs-Appellants, v. Stacey SELLERS, as Personal Representative of the Estate of Peter Simon Waxtan, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

863 F.3d 1361

Babasola KOLAWOLE, et al., Plaintiffs-Appellants,

v.Stacey SELLERS, as Personal Representative of the Estate of Peter Simon Waxtan, Defendant-Appellee.

Nos. 15-13720 & 15-15801

United States Court of Appeals, Eleventh Circuit.

July 21, 2017

Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL, Arthur E. Ballen, Law Office of Arthur E. Ballen, Cherry Hill, NJ, Alaina R. Fotiu-Wojtowicz, Michael Scott Olin, Michael S. Olin, PA, Joel S. Perwin, Joel S. Perwin, PA, Miami, FL, for Plaintiffs–Appellants–Cross Appellees.

John Michael Murray, Murray Morin & Herman, PA, Tampa, FL, Laurence Marc Krutchik, Michael G. Shannon, Murray Morin & Herman, PA, Coral Gables, FL, for Defendant–Appellee–Cross Appellant.

Before MARCUS, DUBINA, and WALKER,^* Circuit Judges

WALKER, Circuit Judge:

These two related appeals are brought by representatives of the estates of decedents who perished in a plane crash in Nigeria. Plaintiffs appeal from two judgments entered in the United States District Court for the Southern District of Florida (Scola, J. ) dismissing their claims based upon the doctrine of forum non conveniens and denying their motion for relief pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. We conclude that the district court did not abuse its discretion, either in dismissing the claims or in denying the Rule 60(b) motion, and therefore AFFIRM both the judgment and the order of the district court.

BACKGROUND

The events giving rise to these appeals were tragic. On June 3, 2012, Dana Airlines Flight 992, traveling from Abuja, Nigeria, while on approach to Murtala Muhammed International Airport in Lagos, Nigeria, lost power in both engines and crashed in a densely populated area. All 153 passengers and crew members were killed, along with ten confirmed deaths on the ground. The plane was destroyed in the post-crash fire.

The two flight recorders were analyzed at the U.S. National Transportation Safety Board in Washington, D.C, but only thirty-one minutes of audio could be recovered due to fire damage. The airplane had last undergone maintenance two days before the crash. According to the plane's logs, no mechanical conditions had been reported during the previous month. Published reports indicated that the accident was likely caused by the flight crew's failure to properly monitor fuel flow to the engines and to activate certain fuel pumps.

The pilot, Peter Waxtan, was a United States citizen who resided in Fort Lauderdale, Florida. Mr. Waxtan's estate remains open in Broward County, Florida. Two suits were separately filed against Mr. Waxtan's estate. On September 18, 2012, twenty plaintiffs filed a complaint, styled Olojo v. Sellers , in state court. Defendant Stacey Sellers, Mr. Waxtan's daughter and the representative of his estate, removed that action to federal court. On February 26, 2013, eighteen additional plaintiffs filed a complaint, styled Obot v. Sellers , in the Southern District of Florida. The district court consolidated the Olojo and Obot suits on March 28, 2013.

On April 10, 2013, Sellers moved to dismiss the consolidated action upon the basis of forum non conveniens . The district court denied Sellers' motion regarding claims maintained on behalf of United States citizen or resident decedents ("domestic decedents") but granted it with respect to decedents who had not been United States citizens or residents ("foreign decedents"). On February 6, 2015, the district court declined to grant Plaintiffs relief from the judgment pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. The district court granted Plaintiffs' motion for entry of final judgment, pursuant to Rule 54(b), on July 24, 2015. This appeal followed.

On August 4, 2015, some, but not all, Plaintiffs filed a further motion for reconsideration, pursuant to Rule 60(b), which the district court denied on November 30, 2015. Those Plaintiffs then timely appealed. The two appeals were administratively consolidated.

DISCUSSION

On appeal, Plaintiffs contend that the district court abused its discretion in: (1) granting Sellers' motion to dismiss based upon forum non conveniens and (2) denying the final Rule 60(b), which was submitted on August 4, 2015.

We review for abuse of discretion both a district court's dismissal for forum non conveniens , Republic of Panama v. BCCI Holdings (Luxembourg) S.A. , 119 F.3d 935, 951 (11th Cir. 1997), and denial of relief pursuant to Rule 60(b), Tobinick v. Novella , 848 F.3d 935, 943 (11th Cir. 2017). Abuse of discretion review is "extremely limited" and "highly deferential." Aldana v. Del Monte Fresh Produce N.A., Inc. , 578 F.3d 1283, 1288 (11th Cir. 2009) (internal quotation marks and citation omitted). We must affirm unless the district court applied an incorrect legal standard, applied the law in an unreasonable or incorrect manner, followed improper procedures in making a determination, or made findings of fact that are clearly erroneous. See Aycock v. R.J. Reynolds Tobacco Co ., 769 F.3d 1063, 1068 (11th Cir. 2014).

I.

A.

We must first address the timeliness of these appeals. Sellers does not contest that Plaintiffs timely appealed the denial of their August 4, 2015 Rule 60(b) motion. She argues, however, that the appeal from the dismissal of Plaintiffs' claims was not timely. Sellers' argument, in substance, is that the district court's order dismissing the claims was a final judgment. If Sellers is correct, Plaintiffs were required to file their appeal within thirty days of the February 6, 2015 order denying reconsideration, which they did not do. To remedy this error, Sellers argues, Plaintiffs filed an unwarranted motion for entry of final judgment pursuant to Rule 54(b). When the district court granted that motion, Plaintiffs were therefore improperly provided an additional thirty days to file their appeal. However, because the district court's order dismissing Plaintiffs' claims was not a final judgment, we conclude that the appeal was timely.

A party against whom a district court rules typically has thirty days to file a notice of appeal. See Fed. R. App. P. 4(a)(1)(A). As this case demonstrates, however, when the thirty day period begins is not always clear. An appeal may normally only be taken from a final judgment. See 28 U.S.C. § 1291. The period to file an appeal of a final judgment begins on the later of either two events: (1) when the district court enters the order constituting the final judgment, see Fed. R. App. P. 4(a)(1)(A), or (2) when the court disposes of the last motion seeking relief from the final judgment, Fed. R. App. P. 4(a)(1)(A), (a)(4)(A)(iv), (vi). However, even when a district court enters a non-final judgment, i.e. , one that fails to adjudicate all of the parties' claims, it may still certify the judgment as final if "there is no just reason for delay." Fed. R. Civ. P. 54(b). In such a scenario, the thirty day period begins when the court enters the judgment pursuant to Rule 54(b). See Fed. R. App. P. 4(a)(1)(A), 4(a)(7)(A)(ii).

Where, as here, multiple plaintiffs seek relief in a consolidated action, there occasionally arises some question as to whether the claims constitute multiple suits or a single suit. Potentially dispositive of whether the dismissal of only some plaintiffs' claims is a final judgment, this question can bear directly upon whether the deadline to file an appeal has passed. Whether two actions are consolidated sufficiently to be one suit turns upon the "extent and purposes of the consolidation." Lewis Charters, Inc. v. Huckins Yacht Corp. , 871 F.2d 1046, 1048 (11th Cir. 1989) (citing Ringwald v. Harris , 675 F.2d 768, 770 (5th Cir. 1982) ). In Lewis Charters, Inc. v. Huckins Yacht Corp. , for instance, two independently filed suits remained separate actions because: (1) they were consolidated only for joint hearings and trial, making the consolidation "for limited purposes only" and (2) the suits retained their separate identities because (a) they were to be pleaded separately, (b) each pleading was to be filed in both actions, and (c) the first action was to be tried by a jury before the second would be resolved by the court. Id. at 1048-49. The actions, we concluded, were therefore "essentially severed" rather than "merge[d] into a single cause." Id. at 1049. Another factor we have considered in assessing the extent of consolidation is whether the actions could have initially been filed as a single action. See Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc. , 312 F.3d 1349, 1356 (11th Cir. 2002) (per curiam), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs and Participating Emp'rs , ––– U.S. ––––, 134 S.Ct. 773, 778-79, 187 L.Ed.2d 669 (2014).

Here, Plaintiffs filed their notice of appeal on August 19, 2015. As Sellers notes, thirty days had elapsed since both the district court's order dismissing Plaintiffs' claims and the order disposing of the various motions seeking reconsideration that Plaintiffs filed prior to submitting their Rule 54(b) motion.² Plaintiffs did, however, file their appeal within thirty days of entry of judgment pursuant to Rule 54(b), which occurred on July 24, 2015. As a result, the appeal was timely only if the order dismissing Plaintiffs' claims was not a final judgment and therefore Rule 54(b) certification was necessary to file an appeal.

This is admittedly an unusual scenario because, prior to the court's Rule 54(b) certification, Plaintiffs moved for relief pursuant to Rules 59(e) and 60(b), which is available only when the court has already entered a final judgment, rendering Rule 54(b) certification unnecessary. See Fed. R. Civ. P. 59(e), 60(b) ; Hertz Corp. v. Alamo Rent-A-Car, Inc. , 16 F.3d 1126, 1132 (11th Cir. 1994) ; In re Worldwide Web Sys., Inc. , 328 F.3d 1291, 1294-95 (11th Cir. 2003). Sellers seizes upon this tension, arguing that the filing of the motions for reconsideration...