Delgado v. Delta Air Lines, Inc.
| Decision Date | 19 August 2013 |
| Docket Number | Case No. 12–23272–CIV. |
| Citation | 43 F.Supp.3d 1261 |
| Parties | Sonia DELGADO, et al., Plaintiffs, v. DELTA AIR LINES, INC., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Lea P. Valdivia, Podhurst Orseck, P.A., Steven Craig Marks, Podhurst Orseck Josefsberg, et al., Miami, FL, for Plaintiffs.
Christopher G. Kelly, Sarah G. Passeri, Holland & Knight, LLP, New York, NY, Lyndall Molthan Lambert, Holland & Knight, Miami, FL, for Defendant.
THIS CAUSE comes before the Court upon Delta Air Lines, Inc.'s Motion to Dismiss for Forum Non–Conveniens and Supporting Memorandum of Law [D.E. 41].
THE COURT has reviewed the Motion, pertinent portions of the record, and is otherwise fully advised in the premises.
Mrs. Sonia Delgado, Mr. Juan Enrique Delgado, and Mrs. Jacqueline Cabrera (collectively referred to as “Plaintiffs”) allege that on or about May 31, 2012, Juan Delgado (“Mr. Delgado”) fell down a portable staircase used to allow passengers from Air France Flight No. 695 to disembark from the airplane onto the tarmac at Charles de Gaulle Airport in Paris, France. [D.E. 1]. According to the complaint, the fall caused Mr. Delgado to suffer extensive head trauma, which led to his death in a French hospital shortly thereafter. Id.
On September 7, 2012, Plaintiffs brought a wrongful death suit against Defendant Delta Air Lines, Inc. (“Delta”) pursuant to the Convention for the Unification of Certain Rules for International Carriage by Air, Done at Montreal May 28, 1999, S. Treaty Doc. No. 106–45, 1999 WL 33292734 ()1 . Id. at ¶¶ 4–10. Plaintiffs allege that even though Air France operated the flight from Miami to Paris, Mr. Delgado purchased his ticket through Delta and, as a result, Delta is bound by the contractual code-share agreement with Air France and is required to accept all responsibility for the entirety of the code-share journey.Id. at ¶¶ 15–19.
On July 15, 2013, Delta moved to dismiss Plaintiffs complaint on the basis of forum non conveniens. [D.E. 41]. Delta's position is that France is the more appropriate forum for this litigation and Plaintiffs emphatically disagree.
The Court may dismiss an action under the doctrine of forum non conveniens, on the grounds that a court abroad is the more appropriate and convenient forum for adjudicating the controversy. Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). To succeed, “the moving party must demonstrate that (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate [their] suit in the alternative forum without undue inconvenience or prejudice.” Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.2001) (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 951 (11th Cir.1997) ). In addition, “a defendant has the burden of persuasion as to all elements of a forum non conveniens [sic] motion, including the burden of demonstrating that an adequate alternative forum is available.” Id. at 1311.
Moreover, the Parties agree that the Montreal Convention governs the dispute between them. [D.E. 1, 41 at 5]. As noted, the United States of America and France are signatories to the Montreal Convention and are bound by its provisions. See Pierre–Louis v. Newvac, 584 F.3d 1052, 1056 n. 5 (11th Cir.2009).
“Availability and adequacy are separate issues” and will be addressed separately below. Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F.3d 1283, 1291 (11th Cir.2009) (citing Leon, 251 F.3d at 1311 ). First, in order for a forum to be “available” to a plaintiff, the foreign court must be able to “assert jurisdiction over the litigation sought to be transferred.” Id. In the present case, Delta has agreed to submit to jurisdiction in France. [D.E. 41 at 12]. By doing so, Courts have found that this submission to jurisdiction is generally enough to satisfy the availability of the alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506–07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ); Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1429 (11th Cir.1996) (); Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 608 (10th Cir.1998). However, in light of a recent decision from the Cour de Cassation, the French Supreme Court, this Court expresses doubt as to the availability of an alternative forum in France after a forum non conveniens dismissal.
In In re West Caribbean Airways, S.A., 619 F.Supp.2d 1299 (S.D.Fla.2007) (Ungaro, J.), there were two issues of first impression before the court: (1) whether forum non conveniens was an available procedural tool under Article 33(4) of the Montreal Convention2 ; and (2) whether is was appropriate to dismiss the suit on that basis. See In re West Caribbean Airways, S.A., 619 F.Supp.2d 1299 (S.D.Fla.2007). After an exhaustive analysis, Judge Ungaro held that “the doctrine of forum non conveniens [was] applicable in [that] proceeding pursuant to Article 33(4) of the Montreal Convention” and dismissed the case on the basis that Martinique was a more appropriate forum. Id. On appeal, the Eleventh Circuit affirmed Judge Ungaro's decision holding that “the Montreal Convention was not a bar to the application of the forum non conveniens doctrine and that the district court did not abuse its discretion in applying the doctrine to dismiss the case.” In re West Caribbean Airways, S.A., 2012 WL 1884684, *3 (S.D.Fla.2012) ; see Pierre–Louis, 584 F.3d 1052 (11th Cir.2009).
Post dismissal, certain plaintiffs brought suit in Martinique arguing, oddly enough, that the Court of First Instance in Martinique did not have jurisdiction under the Montreal Convention. Id. at *4. After an opinion by the Cour d'Appel, the French Appellate Court, essentially agreeing with the U.S. District Court and extending jurisdiction after a forum non conveniens dismissal, the Cour de Cassation quashed the ruling and expressly disagreed with the U.S. District Court's interpretation that forum non conveniens applied to Article 33 of the Montreal Convention. Cour de Cassation [Cass.] [supreme court for judicial matters] le civ., Dec. 7, 2011, Bull. civ. I, No. Q10–30.919 (Fr.). The Cour de Cassation focused on the “option of the plaintiff” language in Articles 33(1) and 46 of the Montreal Convention in concluding that the plaintiff alone has the choice of deciding which forum to bring suit3 . Id. The Cour de Cassation further found that an internal rule of procedure that contradicts the plaintiff's selected forum (i.e. a forum non conveniens dismissal) is improper, and once the plaintiff has made a choice of forum, “the other courts designated by the Convention are definitely devoid of the possibility of ruling on the dispute and must consequently waive exercising their jurisdiction.” Id.; see Galbert v. West Caribbean Airways, 715 F.3d 1290, 1293–94 (11th Cir.2013). Ultimately, the Cour de Cassation “declared the ‘unavailability of the French venue.’ ” Id.
By refusing to exercise jurisdiction on the grounds that the plaintiffs initially selected the United States to litigate their claims, the Cour de Cassation stands in direct conflict with the Eleventh Circuit Court of Appeals. This Court is bound by the decisions of the Eleventh Circuit Court of Appeals and will find the doctrine of forum non conveniens to be applicable; however, in light of the Cour de Cassation's position, this Court expresses doubt as to the availability of an alternative forum in France after a forum non conveniens dismissal.
Turning now to the “adequacy” of an alternative forum, the Supreme Court held that dismissal may be improper when “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.” Leon, 251 F.3d at 1311 (quoting Piper, 454 U.S. at 254, 102 S.Ct. 252 ). Additionally, a foreign court system need not afford plaintiffs identical relief or causes of action. Esheva v. Siberia Airlines, 499 F.Supp.2d 493, 497–98 (S.D.N.Y.2007). As stated above, the Montreal Convention applies in this case and provides the exclusive means of liability assessment and damage recovery. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (). France and the United States of America are signatories to the treaty and, as a result, the ability to enforce treaty provisions lies within both countries. See Pierre–Louis, 584 F.3d at 1056 n. 5 ; Montreal Convention, Article 33. Moreover, there have been a number of cases finding France to be an adequate forum for wrongful death claims.See Magnin, 91 F.3d 1424 (11th Cir.1996) ; Gschwind, 161 F.3d 602 (10th Cir.1998) ; Reers v. Deutsche Bahn AG, 320 F.Supp.2d 140 (S.D.N.Y.2004).
In support of its motion, Delta provides an affidavit from Mme. Maylis Casati–Ollier, a practicing attorney in France, explaining the french civil law system as well as claims for wrongful death and recoverable damages. [D.E. 41–1]. Plaintiffs argue that France is inadequate because it would not recognize the pretrial discovery work already accomplished by the parties, most notably the depositions and reports of experts. This Court acknowledges the additional costs Plaintiffs would incur if this case were transferred; however, Plaintiffs concerns about the costs of additional litigation do not factor into an “adequacy” analysis since it is not alleged that the remedy offered by the...
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