Gschwind v. Cessna Aircraft Co., 97-3164

• Decision Date: 18 September 1998
• Docket Number: No. 97-3164,97-3164
• Citation: 161 F.3d 602
• Parties: 98 CJ C.A.R. 5785 Virginie GSCHWIND, in her own right and administratrix of the estate of Cyril Gschwind and Alexandra Gschwind, Plaintiff--Appellant, v. CESSNA AIRCRAFT COMPANY; Pratt & Whitney Canada, Inc., Defendants--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 602

161 F.3d 602

98 CJ C.A.R. 5785

Virginie GSCHWIND, in her own right and administratrix of the estate of Cyril Gschwind and Alexandra Gschwind, Plaintiff--Appellant, v. CESSNA AIRCRAFT COMPANY; Pratt & Whitney Canada, Inc. Defendants--Appellees.

No. 97-3164.

United States Court of Appeals Tenth Circuit.

Sept. 18, 1998.

Ordered Published Nov. 10, 1998.

Catherine B. Slavin, Wolk & Genter, Philadelphia, Pennsylvania (Ken. M. Peterson, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kansas, with her on the briefs), for Appellant.

John C. Nettels, Jr., Morrison & Hecker, Wichita, Kansas, for Appellee Cessna Aircraft Company.

Curtis C. Landherr, Baker, Sterchi, Cowden & Rice, L.L.C., Overland Park, Kansas, (John W. Cowden, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, Missouri, with him on the brief), for Appellee Pratt & Whitney Canada, Ltd.

Before TACHA, McWILLIAMS, and KELLY, Circuit Judges.

TACHA, Circuit Judge.

This case arises from a plane crash that occurred in France and killed the pilot, Cyril Gschwind. Defendants, the Cessna Aircraft Company and Pratt & Whitney Canada, moved for dismissal based on forum non conveniens. The district court granted their motion, finding that France would be a significantly more convenient forum for this dispute. We take jurisdiction of the plaintiff's appeal pursuant to 18 U.S.C. § 1291 and affirm.

On August 16, 1993, Cyril Gschwind, a French citizen living in Belgium, died when the Cessna Caravan 208B that he was piloting crashed near Cannes, France. At the time of his death, the decedent was the European distributor for Cessna Caravan Aircraft. His company, Aviation & Services Europe, had offices in Mandelieu, France. Nonetheless, Mr. Gschwind's business brought him to the United States on a number of occasions, and he had been trained to fly the Cessna Caravan in Miami, Florida.

There may have been one eyewitness to the crash, which was investigated by French authorities. The aircraft involved in the accident had only approximately fifty hours of actual flight time; no maintenance had been performed on it since it had left the United States. Although French authorities sent some components of the aircraft to the United States for testing, the wreckage is still in France.

A lawsuit relating to the financial position of the decedent's business at the time of his death was filed in Cannes, France, shortly after the crash. In the suit, a British aircraft company named Titan alleges that Gschwind kept money that was to be used for the purchase of a Cessna aircraft. This evidence, along with a note written by Mr. Gschwind to a business associate named Peter Bennedsen and faxed to him shortly before the crash, suggests the possibility of suicide. The note read:

I am obliged to take a flight today with which I don't feel comfortable at all. Should anything happen to me, and since you are the only person I trust, could you please: (1) wire back the extra money you receive from me [to a Swiss bank account, and] (2) take care as best you can, of the interest of my small family (wife & baby).

Appellant App. at 295.

Mr. Gschwind's widow, Virginie Gschwind, brought this wrongful death action against Cessna, the Kansas manufacturer of the Caravan 208B aircraft, Pratt & Whitney Canada, a Quebec company that manufactured the engine used in the Caravan, and Hartzell Propeller Inc., an Ohio company that makes some (but not all) of the propellers for the Caravan aircrafts. Plaintiff based her action on various product liability and negligence claims. The parties eventually dismissed Hartzell from the case by stipulation.

The Plaintiff sued in the Court of Common Pleas for Montgomery County, Ohio, and the Defendants removed to federal court. Defendant Cessna then filed a motion to dismiss on the grounds of forum non conveniens or for a change of venue to the U.S. District Court for the District of Kansas. Pratt & Whitney moved to dismiss for lack of personal jurisdiction or, in the alternative, for dismissal based on forum non conveniens. The Magistrate handling the case recommended that Defendants' forum non conveniens motions be denied. The Magistrate did, however, grant the lesser request of a transfer to the District of Kansas. The case was transferred to the District of Kansas, where the Defendants appealed the Magistrate's forum non conveniens recommendation. The district court agreed with Defendants and dismissed the case based on forum non conveniens. The district court conditioned its dismissal on Defendants' agreement to: (1) produce their respective employees, officers and records in France, at their own cost; (2) make good faith and reasonable efforts to obtain the attendance of former employees and officers; (3) waive any limitations defenses that would not have been available to them had plaintiff initiated her litigation in France on the same day she filed her complaint in Ohio; (4) transport all physical evidence brought from Europe back to France; (5) voluntarily enter their appearance before the court when plaintiff initiates her litigation in France; and (6) consent to reinstatement of this case in its present posture in the event that the French courts refuse to accept jurisdiction over the matter.

I.

"[T]he central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). There are two threshold questions in the forum non conveniens determination: first, whether there is an adequate alternative forum in which the defendant is amenable to process, see id. at 254 n. 22, 102 S.Ct. 252, and second, whether foreign law applies, see Rivendell Forest Prod., Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 994 (10th Cir.1993). If the answer to either of these questions is no, the forum non conveniens doctrine is inapplicable. If, however, the answer to both questions is yes, the court goes on to weigh the private and public interests bearing on the forum non conveniens decision.

The private interest factors to be considered are: (1) the relative ease of access to sources of proof; (2) availability of compulsory process for compelling attendance of witnesses; (3) cost of obtaining attendance of willing non-party witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all other practical problems that make trial of the case easy, expeditious and inexpensive. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The public interest factors include: (1) administrative difficulties of courts with congested dockets which can be caused by cases not being filed at their place of origin; (2) the burden of jury duty on members of a community with no connection to the litigation; (3) the local interest in having localized controversies decided at home; and (4) the appropriateness of having diversity cases tried in a forum that is familiar with the governing law. See id. at 508-09, 67 S.Ct. 839.

As the district court noted, normally there is a strong presumption in favor of hearing the case in the plaintiff's chosen forum. See Piper, 454 U.S. at 255, 102 S.Ct. 252. That presumption is overcome "only when the private and public interest factors clearly point towards trial in the alternative forum." Id. A foreign plaintiff's choice of forum, however, warrants less deference. See id. at 256, 102 S.Ct. 252. When the plaintiff is foreign, the private and public interest factors need not so heavily favor the alternate forum. See id.

Plaintiff alleges error by the district court on a number of grounds. First, Plaintiff complains that the district court erred in its consideration of the availability of an alternate forum, its determination that French law will govern the case, and its weighing of the private and public interest factors. Second, Plaintiff contends that Defendant failed to provide a sufficient factual record in support of its motion.

Our standard for reviewing a district court's decision to grant or deny a motion for forum non conveniens is as follows:

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.

Id. at 257, 102 S.Ct. 252. Nonetheless, appellate review is not perfunctory; we carefully examine the reasoning of the district court. See Rivendell, 2 F.3d at 992.

A.

We address first the district court's alleged error in determining that there is an adequate and available alternate forum--in this case, France. Plaintiff correctly notes that the defendant bears the burden of proving that an adequate alternative forum exists. See, e.g., El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 677 (D.C.Cir.1996); Schertenleib v. Traum, 589 F.2d 1156, 1160 (2d Cir.1978). The defendant must prove that the alternative forum is both available and adequate. Kamel v. Hill-Rom Co., 108 F.3d 799, 802 (7th Cir.1997); Reid-Walen v. Hansen, 933 F.2d 1390, 1393 n. 2 (8th Cir.1991).

In this case, Defendants agreed to be subject to suit in France. That concession is generally enough to make the alternative forum available. See Piper, 454 U.S. at 254 n. 22, 102 S.Ct. 252 ("Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process' in the other jurisdiction.") (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) (finding France an available alternative forum where the defendants had agreed to French jurisdiction); R. Maganlal & Co. v. M.G. Chem. Co. ., 942 F.2d 164, 167 (2d. Cir.1991) (finding India was adequate and available forum where defendant agreed to submit to...