In re Air Crash Over the Mid–atl. On June 1, 2009.

• Decision Date: 04 October 2010
• Docket Number: MDL No. 10–2144–CRB.
• Citation: 760 F.Supp.2d 832
• Parties: In re AIR CRASH OVER the MID–ATLANTIC ON JUNE 1, 2009.
• Court: U.S. District Court — Northern District of California

760 F.Supp.2d 832

In re AIR CRASH OVER the MID–ATLANTIC ON JUNE 1, 2009.

MDL No. 10–2144–CRB.

United States District Court, N.D. California.

Oct. 4, 2010.

ORDER GRANTING FORUM NON CONVENIENS DISMISSAL

CHARLES R. BREYER, District Judge.

In one of the most tragic airline accidents in history, an Air France flight left Brazil for France and crashed over the Atlantic Ocean on June 1, 2009. All 228 passengers and crew lost their lives. Many representatives of those passengers have filed lawsuits in the United States, and those suits were consolidated for pre-trial purposes in this Court. The Court has great sympathy for all the families who lost loved ones in this horrific accident and is interested in seeing those families fairly and timely compensated. But sympathy cannot be a substitute for an unbiased application of the law. Because in this Court's view an unbiased application of the law shows that these matters should be dismissed for forum non conveniens, that is the Court's Order.

I. GENERAL PROCEDURAL FRAMEWORK

There are four Motions before the Court, all broadly concerning where litigation regarding the crash should (and should not) take place.¹ The four Motions are as follows: (1) Air France's Motion pursuant to Rule 12(b)(1) to dismiss the domestic Plaintiffs' case on the ground that this Court lacks subject matter jurisdiction under the MC; (2) Air France's Motion pursuant to Rule 12(b)(1) to dismiss the third-party claims brought by the Manufacturing Defendants on the ground that this Court lacks subject matter jurisdiction under the MC; (3) Air France's Motion to Dismiss all actions in which it is a party on forum non conveniens grounds; and (4) the Manufacturing Defendants' Motion to Dismiss all actions on forum non conveniens grounds.

This Opinion proceeds as follows. First, the Court discusses and rejects Air France's Motion to Dismiss the domestic Plaintiffs on jurisdictional grounds. Second, the Court discusses why this case is dismissed for forum non conveniens.

II. AIR FRANCE'S MOTION TO DISMISS THE DOMESTIC PLAINTIFFS UNDER RULE 12(B)(1) FOR LACK OF SUBJECT MATTER JURISDICTION

Air France moves to dismiss the domestic Plaintiffs' case because, in its view, this Court lacks subject matter jurisdiction under the MC. The MC is a treaty, enacted in the United States on November 4, 2003, that covers “all international carriage of persons, baggage or cargo performed by aircraft for reward.” MC Art. 1(1). It provides the “exclusive basis for a lawsuit against an air carrier for injuries arising out of international transportation.” Kruger v. United Airlines, Inc., 481 F.Supp.2d 1005, 1008 (N.D.Cal.2007).

The MC sets forth five jurisdictions in which an action by a passenger against a carrier may be brought:

(1) “the court of domicile of the carrier”

(2) the location of the carrier's “principal place of business”

(3) “where the carrier has a place of business through which the contract has been made”

(4) “the court at the place of destination”

(5) “the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence ....”²

MC, Art. 33(1), (2) (emphasis added). A passenger's “principal and permanent residence” is defined as “the one fixed and permanent abode of the passenger at the time of the accident.” MC, Art. 33(3)(b). The parties agree that, if jurisdiction over the domestic Plaintiffs' claims against Air France is proper in the United States, it is proper pursuant to the “fifth jurisdiction.”

A. Background Facts

Air France sets forth facts that it believes show that the domestic Plaintiffs—representing Mr. and Mrs. Harris who perished in the crash—cannot invoke the “fifth jurisdiction” because the decedents' “principal and permanent residence” “at the time of the accident” was in Brazil, not the United States. Air France's Mot. to Dismiss Under Rule 12(b)(1) (Dkt. 156) at 7.³ Air France points to, among other things, the following:

• at the time of the accident, decedents were living in Brazil;

• at the time of the accident, Mr. Harris was working for a foreign affiliate of an American company;

• at the time of the accident, Mr. Harris had been residing in Brazil for approximately 13 months and Mrs. Harris had been residing in Brazil for approximately 12 months;

• at the time of the accident, decedents were traveling on round trip tickets purchased in Brazil with no stops in the United States;

• at the time of the accident, decedents represented that they were “bona fide residents” of Brazil and paid income tax there; and

• six months prior to the accident, the decedents moved over 5000 pounds worth of household goods from Texas to Brazil.

Id.

Plaintiffs provide facts to show that the Harrises' “principal and permanent residence” was in the United States even though they were living in Brazil at the time of the accident. Plaintiffs point to, among other things, the following:

• Mr. Harris regularly spent time away from home on temporary international assignments;

• Mr. Harris never expressed that he had an interest in leaving the United States permanently;

• The assignment he was on was temporary; • The Harrises kept their home in Texas and Mrs. Harris's son lived in and maintained it;

• The Harrises received mail at their Texas home;

• The Harrises left their cars in Texas;

• The Harrises filed tax returns in Texas.

Domestic Pls.' Resp. in Opp'n to Air France's Mot. to Dismiss (Dkt. 642) at 16–19.

B. Legal Standard

Attacks on jurisdiction under Rule 12(b)(1) can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). For facial attacks, the allegations in the complaint are taken as true. See, e.g., Whisnant v. U.S., 400 F.3d 1177, 1179 (9th Cir.2005). When the motion challenges the jurisdictional facts presented in the complaint, the court may consider evidence properly before it, and the party opposing the motion has the burden of establishing subject matter jurisdiction. See, e.g., Savage v. Glendale Union High School, 343 F.3d 1036, 1040 (9th Cir.2003). Where, as here, the motion attacks facts relevant to the determination of whether there is subject matter jurisdiction, the declarations submitted by the parties can be reviewed by the Court. See Polanski v. KLM Royal Dutch Airlines, 378 F.Supp.2d 1222, 1228 (S.D.Cal.2005) (discussing Rule 12(b)(1) challenge under predecessor to the MC).

C. The Harrises' “Principal and Permanent Residence” at the Time of the Accident was in the United States

The district court in Hornsby, 593 F.Supp.2d at 1132, conducted a thorough analysis of the meaning of the phrase “principal and permanent residence” in the MC. That case dealt with a suit by an American plaintiff against a foreign carrier as a result of injuries sustained onboard a plane. Id. At the time of the accident, the plaintiff was living in Germany. As in this case, the carrier argued that the court should dismiss for want of subject matter jurisdiction because the MC made the “fifth jurisdiction” the location where the plaintiff was living at the time of the accident (Germany). The issue before the court in Hornsby—the meaning of “principal and permanent residence” and “fixed and permanent abode”—is the issue before this Court as well. If those phrases combine to mean something like “domicile” then Plaintiffs prevail, but if they combine to mean something like “residence” then Air France prevails.

Hornsby reached the following conclusion as to the meaning of the phrases:

The only conclusion to be drawn ... is that the phrase “fixed and permanent abode” is closer in meaning to the word “domicile” than the word “residence,” and that the intent of the party is relevant to determining his or her “fixed and permanent abode.” Thus, intent must also be relevant to the phrase “principal and permanent residence” ....

593 F.Supp.2d at 1137–38.

The conclusion drawn by the court in Hornsby makes sense. The word “permanent” implies something other than just a determination of where a person was living at the time of the accident, and the available drafting history does not support the conclusion that the drafters meant to eschew a meaning similar to “domicile.” Id. Although there was some disagreement among the delegates about including the word “domicile,” and it ultimately was not included, that disagreement stemmed from the word's different meaning in English than in French. To avoid confusion, the drafters used the phrase “principal and permanent residence,” “[b]ut the fact that the language was changed does not necessarily indicate that the new language in the English version was intended to have a substantially different meaning [than domicile].” Hornsby, 593 F.Supp.2d at 1139. Moreover, treating “principal and permanent residence” like “domicile” is consistent with the purpose of the fifth jurisdiction—“enhanc[ing] passengers' rights under the [ ] treaty.” Baah, 473 F.Supp.2d at 597 n. 8; Hornsby, 593 F.Supp.2d at 1139.

Air France rejects the analysis in Hornsby on several grounds and argues that the Court should focus on the decedents' residence at the time of the accident. None of Air France's arguments are persuasive.

First, Air France cites to Seales v. Panamanian Aviation Co., No. 07–CIV–2901, 2009 WL 395821 (E.D.N.Y. Feb. 18, 2009), which it asserts adopted a different reading of “principal and permanent residence” that did not resemble “domicile.” But Seales did not conduct any analysis of the meaning of “principal and permanent residence.” Rather, the court simply held that the plaintiff failed to meet his burden of establishing that his “principal and permanent residence” was in the United States. Id. at *10.

Second, Air France stresses that the inclusion of the language “at the time of the accident” forecloses the conclusion that the language means something akin to “domicile.” That...