In re Air Crash Disaster of Aviateca Flight 901

• Decision Date: 29 August 1997
• Docket Number: No. 96-2094-CIV.,96-2094-CIV.
• Parties: In re AIR CRASH DISASTER OF AVIATECA FLIGHT 901 NEAR SAN SALVADOR, EL SALVADOR ON AUGUST 9, 1995.
• Court: U.S. District Court — Southern District of Florida

29 F.Supp.2d 1333

In re AIR CRASH DISASTER OF AVIATECA FLIGHT 901 NEAR SAN SALVADOR, EL SALVADOR ON AUGUST 9, 1995.

No. 96-2094-CIV.

United States District Court, S.D. Florida.

August 29, 1997.

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Aaron J. Podhurst, Barry Meadow, Joel S. Perwin, Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, P.C., Miami, FL, for Plaintiffs.

Michael J. Holland, Steven C. Rickman, Judith R. Nemsick, Condon & Forsyth, New York City, John Murray, Kathleen O'Connor, Thornton Davis & Murray, Miami, FL, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER OR TREATY JURISDICTION, DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO DISMISS ON THE GROUNDS OF FORUM NON VENIENS, AND DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS ON THE GROUNDS OF RES JUDICATA

UNGARO-BENAGES, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion To Dismiss On The Grounds of Lack of Subject Matter Jurisdiction or Treaty Jurisdiction (D.E.59); Defendants' Motions to Dismiss On the Grounds of Forum Non Conveniens (D.E.56, 57, 58, 89); and Defendant's Motion to Dismiss on the Grounds of Res Judicata and Collateral Estoppel (D.E.59). The parties have submitted memoranda and supporting documentation for the Court's consideration, and the parties appeared before the undersigned on August 8, 1997 for oral argument, at which counsel for the Plaintiffs and counsel for the Defendants were present.

BACKGROUND

This case arises out of the August 9, 1995 crash of a Boeing 737-200 Series aircraft, United States Registration Number N125GU, that was operated by Defendant Aviateca, S.A. ("AVIATECA") as flight 901, during a regularly scheduled flight from Guatemala City, Guatemala, to San Salvador, El Salvador. Beginning in September of 1995, surviving relatives and representatives of the estates of nineteen of the decedents filed wrongful death actions against Aviateca and the other Defendants in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. The Defendants removed the actions to this Court on the grounds that Plaintiffs' claims arose under a treaty of the United States, the Warsaw Convention. Plaintiffs then moved to remand the actions, and the Court granted Plaintiffs' Motions.

After the remands, Defendant Aviateca tions on the grounds that the state court lacked subject matter or "treaty" jurisdiction under the Warsaw Convention. The state trial court denied Defendant's motions in nine of the actions, and, before the motions were heard in the remaining actions, Plaintiffs voluntarily dismissed the other nine cases. Defendant Aviateca then petitioned the Third District Court of Appeal for a Writ of Prohibition precluding the trial court from exercising subject matter jurisdiction over the nine cases in which its motions to dismiss had been denied. The Third District granted the writ and held:

In applying Article 28(1), it is clear that the trial court does not have subject matter jurisdiction over these nine wrongful death cases. First, Aviateca's domicile is not in the United States. Second, Aviateca's principal place of business is not in the United States. Third, the place of business through which each contract was made was not in the United States. Finally, the place of destination was not in the United States. Therefore, since the United States is not one of the four mandatory for a set forth in Article 28 of the Warsaw Convention, we grant the petition for writ of prohibition.

Aviateca, S.A. v. Friedman 678 So.2d 387 (Fla. 3d DCA 1996) ("the Friedman decision"). Plaintiffs next filed a motion for rehearing in the Third District which was denied in September of 1996. Plaintiffs also petitioned the Florida Supreme Court for issuance of a Writ of Mandamus, which was denied on December 3, 1996. The trial court then dismissed the nine actions governed by the Friedman decision.

In September, 1996, prior to the state court's final dismissal of the nine actions pursuant to the Friedman decision, Plaintiffs began filing actions arising from the crash against the Defendants in this Court. In all, surviving relatives and representatives of the estates of sixty-one decedents filed actions in this Court seeking relief for the alleged wrongful death of crew members and passengers.¹ It should be noted, however, that although claims arising out of the deaths of sixty-one individuals are now pending in this Court, many of the Plaintiffs consolidated their actions with those of others, and, therefore, only ten separate case files were opened.² Moreover, those ten case files were further consolidated by the Court by Order dated November 22, 1996 such that all discovery and motion practice have proceeded in one case file having the style and caption set forth above.

The Defendants initially sought to stay the proceedings in this Court pending the final dismissal of the actions by the state court. In the alternative, Defendants requested that this Court order Plaintiffs to respond to their forum non conveniens motions which they had filed in state court. In addition, Defendants filed a Motion to Dismiss one of the actions, Blazquez v. Aviateca. et al., Case No. 96-2166, on the grounds of lack of treaty jurisdiction and urged the Court to adopt the findings of the state court that Aviateca's "principal place of business" is not in the United States. The undersigned held a conference with the parties at which all parties were represented by counsel. There, the Court ordered the parties to proceed with discovery directed to the issues of forum non conveniens and the "principal place of business" of the carrier under the Warsaw Convention.

The parties have now completed discovery as to the issues of forum non conveniens and principal place of business. The three motions now pending before the Court are: (1) Defendant Aviateca's Motion to Dismiss on the Ground of Lack of Subject Matter or Treaty Jurisdiction; (2) all Defendants' Motion to Dismiss on the Grounds of Forum Non Conveniens; and (3) Defendant Aviateca's Motion to Dismiss on the Grounds of Res Judicata.

LEGAL ANALYSIS

I. Consolidation of Actions

At the outset, the Court points out that although the claims arising out of the deaths of sixty passengers and crew members that are pending in this Court after the settlement of the Blazquez cases are asserted in only eight case files bearing eight case numbers,³ it is the Court's position, and the parties agree, that sixty separate but consolidated cases are pending before the Court. The significance of this is that these cases can remain in this Court only if there is an independent basis for the exercise of federal subject matter jurisdiction in each of the sixty cases, or if there is federal question jurisdiction in at least some of the cases and, therefore, the ability to exercise supplemental jurisdiction over all or some of the remaining cases. See United States v. Tippett, 975 F.2d 713, 716 (10th Cir.1992) (court must have independent basis for federal jurisdiction over case, even where consolidated with other cases); Kuehne & Nagel v. Geosource, Inc., 874 F.2d 283, 287 (5th Cir.1989); McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.1982).

II. Federal Jurisdiction

The Plaintiffs argue that there is original federal question jurisdiction in twenty-nine of the cases because they arise under and are governed by the Warsaw Convention ("the Warsaw cases"). Thus, Plaintiffs argue that the Court could exercise supplemental jurisdiction over the remaining "non-Warsaw" cases pursuant to 28 U.S.C. § 1367(a) if there is no other independent basis for federal jurisdiction over those cases.⁴ Plaintiffs concede that if the Court determines that there is no treaty jurisdiction over any of the cases and, therefore, the Court dismisses Aviateca from those cases governed by the Warsaw Convention, the Court may not exercise supplemental jurisdiction over the "non-Warsaw" cases, despite the fact that there would be complete diversity in many of the remaining "Warsaw claims" as a result of Aviateca's dismissal.⁵ See 28 U.S.C. § 1367(b); Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559 (11th Cir. 1994) (court does not have authority to exercise supplemental jurisdiction over claims that would destroy the Court's original diversity jurisdiction).

The Court agrees that if jurisdiction is proper in the United States pursuant to the Warsaw Convention over any of the claims presented herein, then the Court may, in its discretion, exercise supplemental jurisdiction over any other claims arising out of the same air crash that may be brought in the United States pursuant to 28 U.S.C. § 1367(a). See United Mine Workers v. Gibbs, 383 U.S. 715, 724-25, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Alvarez v. Servicios Aereos de Honduras, S.A., Case No. H-93-3060-CIV, Memorandum and Order (S.D.Tex. January 11, 1994, Lee H. Rosenthal, United States District Judge). Therefore, as an initial matter, the Court must determine whether there is jurisdiction in the United States over the 29 "Warsaw cases" pursuant to the Warsaw Convention. The Court points out that Plaintiffs are the parties seeking to invoke the Court's jurisdiction, and, therefore, Plaintiffs bear the burden of establishing that jurisdiction lies in this Court. Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573 (Fed.Cir.1993); Wenz v. Memery Crystal, 55 F.3d 1503 (10th Cir. 1995).

A. Warsaw Jurisdiction

As noted above, twenty-nine⁶ of the cases before the Court rely upon Article 28 of the Warsaw Convention⁷ for federal subject matter jurisdiction (hereinafter referred to as "the Warsaw Plaintiffs"). It is undisputed that because the flights of the twenty-nine "Warsaw Plaintiffs" were to begin and end in signatory nations or were to begin in signatory nations with stopping places in other territories, the passengers in these cases were injured in "international travel"...