Alma Torreblanca de Aguilar v. Boeing Co.

• Decision Date: 22 September 1992
• Docket Number: Civ. A. No. 1-92-CV-14.
• Citation: 806 F. Supp. 139
• Parties: Alma TORREBLANCA DE AGUILAR et al., Plaintiffs, v. The BOEING COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

806 F. Supp. 139

Alma TORREBLANCA DE AGUILAR et al., Plaintiffs, v. The BOEING COMPANY, et al., Defendants.

Civ. A. No. 1-92-CV-14.

United States District Court, E.D. Texas, Beaumont Division.

September 22, 1992.

Edward H. Green, Mitchell Toups, Weller Wheelus & Green, Beaumont, Tex., Dennis C. Reich, Houston, Tex., for plaintiffs.

Howard Louis Close, Orgain Bell & Tucker, Beaumont, Tex., Richard C. Coyle, David J. Russell, Perkins Coie, Keith Gerrard, Perkins Coie, Seattle, Wash., for defendant Boeing Co.

Gerald Leigh Bracht, Mayor Day Caldwell & Keeton, Houston, Tex., for defendants B.F. Goodrich Co. and Goodyear Tire & Rubber Co.

Jad Jonathon Stepp, Eastham Watson Dale & Forney, Houston, Tex., for defendant Delta Air Lines Inc.

George Steven McCall, G. Don Swaim, Kern & Wooley, Irving, Tex., for defendant Parker Hannifin Corp.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR FORUM NON CONVENIENS

COBB, District Judge.

FACTS

On March 30, 1986, a Mexicana Airlines Boeing 727 flew non-stop from Chicago's O'Hare Airport to Guadalahara, Mexico, and then to Mexico City. The following day, March 31, 1986, it crashed after takeoff killing its crew and passengers. The airplane, operating as Mexicana Airlines Flight 940, was en route from Mexico City to Puerto Vallarta. An agency of the Mexican government investigated the accident. It concluded a tire explosion in the aircraft's wheel well resulted in an in-flight fire. The fire disabled critical aircraft systems and caused the airplane to break-up in mid-air.

Litigation arising from the crash has flown across the United States several times. In each case, the court dismissed the plaintiffs' claims holding that Mexico is the proper, convenient forum.¹ The Rodriguez case was brought in the Western District of Texas. That court also dismissed the case on the grounds that Western District was a forum non conveniens. Plaintiffs now bring suit in the Eastern District claiming the Eastern District, unlike the Western District, is a proper forum. This court disagrees.

DISCUSSION

A. Direct Estoppel

Direct estoppel, a form of issue preclusion, "bars a party from relitigating issues of fact or law that were necessary to the court's judgment and actually determined in a prior action." Sidag Aktiengesellschaft v. Smoked Foods Products Co., 776 F.2d 1270, 1275 (5th Cir.1985). The traditional requirements for application of issue preclusion are:

1. the issue to be precluded must be identical to that involved in the prior action;

2. in the prior action, the issue must have been actually litigated; and

3. the determination made of the issue must have been necessary to the resulting judgment.

White v. World Finance Meridian, Inc., 653 F.2d 147, 151 (5th Cir.1981). A judgment need not be on the merits to preclude relitigation of issues determined in the prior action. Restatement of Judgments § 45 cmt. d (1942). For example, in Pastewka v. Texaco, Inc., 565 F.2d 851, 854 (3d Cir.1977), the Third Circuit held that a plaintiff was precluded from relitigating the issue of forum non conveniens. In that case, the plaintiff brought suit in the District of Delaware after the Southern District of New York dismissed the action on the basis of forum non conveniens. The court explained that the doctrine of direct estoppel was applicable to a forum non conveniens dismissal despite the fact that the dismissal did not resolve the merits of plaintiff's claim. Id. at 853 (citing Restatement of Judgments § 49 cmt. b (1942)). The Third Circuit held:

In this case the appellants point to identical objective criteria and rely on identical material facts underlying the application of those criteria. Their contentions amounts to no more than a wish that, in applying the objective criteria to the undisputed facts, a different judge would make the discretionary forum non conveniens determination. If appellants expected the district judge in Delaware to exercise a more discreet discretion than his judicial brother in the Southern District of New York, then they should have begun their litigation in Delaware. Having now finally lost in New York, they cannot relitigate the same factual and legal issues in Delaware.

Id. at 854 (footnote omitted).

To avoid the preclusive effect of a prior forum non conveniens determination, "the plaintiff in the new forum must do more than ask for a rebalancing of forum non conveniens considerations underlying the previous consideration. He must show objective facts relevant to the issue that materially alter the considerations underlying the previous resolution." Villar v. Crowley Maritime Corp., 780 F.Supp. 1467, 1482 (S.D.Tex.1992).

Plaintiffs have not shown that this jurisdiction is any more convenient than the other fora from which their claims have already been dismissed. If anything, this forum is less convenient. For example, in Washington, plaintiffs could at least point to the presence of Boeing's corporate office and the fact that the airframe of the accident crash was designed and manufactured there as factors favoring the exercise of jurisdiction. Likewise, in Illinois, plaintiffs could assert that the maintenance performed by Delta in Chicago the day before the accident was a possible factor connecting the claims to Illinois. Despite these connections, both the Washington and Illinois courts dismissed this case on the grounds of forum non conveniens. No such connections exist in the Eastern District of Texas.

Plaintiffs assert that changed circumstances preclude direct estoppel. The only specific circumstance plaintiffs identify is their "new stipulations." Plaintiffs, however, made nearly identical stipulations when they brought this case in the Western District of Texas in David Rodriguez Diaz v. Mexicana de Avion S.A., No. SA-86-CA-1065 (W.D.Tex.1987). For example, in Rodriguez, plaintiffs offered to pay the reasonable costs for the Defendants' counsel to go to Mexico in order to take depositions of witnesses. (Exhibit A in Coyle Aff. at 3 hereinafter "Exhibit A"). In this case, plaintiffs offer to pay for "at least two defense counsel to travel to Mexico and depose the Plaintiffs ... and any non-party witnesses located there." (See Plaintiffs' Response to Defendants' Motion to Dismiss on Ground of Forum Non Conveniens Subject to Plaintiffs' Motion to Remand and Plaintiffs' Motion to Reconsider the Court's Order Denying Plaintiffs' Motion to Remand at 13 hereinafter "Plaintiffs' Response"). In Rodriguez, the plaintiffs stipulated to the admissibility of all inspection and investigative reports by the governmental authorities of Mexico. (Exhibit A at 4). Plaintiffs in this case stipulate to the admissibility of the crash report from the Mexican government's investigation. (Plaintiffs' Response at 13). Finally, in Rodriguez, Plaintiffs stipulated to use only American experts or Mexican experts who would be brought to San Antonio for deposition. (Exhibit A at 4). In this case, Plaintiffs agree to use only American experts as to both liability and damages. (Plaintiffs' Response at 13). This court fails to see any new stipulations which would preclude the application of direct estoppel.

One apparent but immaterial difference between this action and the prior actions is the names of the plaintiffs. The Washington action, for example, was brought by Bruce Wolf, a Washington attorney, as personal representative and special administrator for the estates of the 69 decedents. The present action, on the other hand, is brought by 36 different personal representatives. However, this action names 69 decedents and the same 80 surviving relatives as were named in the Wolf complaint. The rule of issue preclusion cannot be evaded simply by bringing successive actions through different representatives. "If the beneficiaries are the same, it is immaterial that the nominal plaintiffs in the two actions are different." Restatement (Second) of Judgments § 47 cmt. c (1982). The persons seeking to benefit by this action are the same persons for whose benefit the Wolf action was brought.

In summary, the legal standard and the facts material to the issue of forum non conveniens are either the same of less favorable to the plaintiffs in this forum than where the plaintiffs previously litigated and lost. All of the requirements for issue preclusion are met and the plaintiffs are estopped from maintaining this action.

B. Alternatively, the Gulf Oil criteria mandate dismissal

Even under traditional forum non conveniens analysis, the Eastern District of Texas is not the appropriate forum for this action. The only possible connection with Texas is that en route from Chicago to Mexico, the 727 flew over Texas the day before the crash.

1. Adequacy and availability of a foreign forum

At the outset of any forum non conveniens inquiry, the district court must first decide whether an available and adequate foreign forum exists. In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d 1147 (5th Cir.1987). The burden of proving that such a forum exists is on the defendant. Perusahaan Umum Listrik Negara v. M/V Tel Aviv, 711 F.2d 1231, 1238 (5th Cir.1983).

A foreign forum is available when the entire case and all parties can come within its jurisdiction. Id. at 1165. A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court. Id. As defendants point out in their brief, they have previously agreed to submit to the jurisdiction of Mexican courts. A defendant's submission to the jurisdiction of an alternative forum renders that forum available. Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1245 (5th Cir.1983).

There is a presumption that the substantive law of a foreign forum is adequate. Vaz Borralho v. Keydril Co., 696 F.2d 379, 392 (5th Cir.1983). Even if the Mexican law is less favorable, that ground cannot defeat a...