In re Ski Train Fire in Kaprun Austria On Nov. 11., MDL No. 1428 (SAS).
| Decision Date | 19 June 2007 |
| Docket Number | No. 03-CV-8961 (SAS).,No. 03-CV-8960 (SAS).,No. 07-CV-935 (SAS).,No. 07-CV-3881 (SAS).,MDL No. 1428 (SAS).,No. 06-CV-2811 (SAS).,03-CV-8960 (SAS).,03-CV-8961 (SAS).,06-CV-2811 (SAS).,07-CV-935 (SAS).,07-CV-3881 (SAS). |
| Citation | 499 F.Supp.2d 437 |
| Parties | In re SKI TRAIN FIRE IN KAPRUN AUSTRIA ON NOVEMBER 11, 2000. This document relates to the following actions: Johann Blaimauer, et al., Plaintiffs, v. Omniglow Corporation, et al., Defendants. Herman Geier, et al., Plaintiffs, v. Omniglow Corporation, et al., Defendants. Nanae Mitsumoto, et al., Plaintiffs, v. The Republic of Austria, et al., Defendants. Nanae Mitsumoto, et al., Plaintiffs, v. Robert Bosch Corporation, et al., Defendants. Joop H. Stadman, et al., Plaintiffs, v. Austrian National Tourist Office Inc., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Edward D. Fagan, Esq., c/o Hantman & Associates, Robert J. Hantman, Esq., Hantman & Associates, New York, NY, James F. Lowy, Esq., International Law Group, LLC, Tampa, FL, for Plaintiffs.
Paul P. Rooney, Esq., Reed Smith LLP, New York, NY, Liaison Counsel for all Defendants.
Ryan M. Morettini, Esq., Kirkland & Ellis LLP, Robert W. Littleton, Esq., Littleton Joyce Ughetta & Park LLP, New York, NY, Brant W. Bishop, Esq., Kirkland & Ellis LLP, Washington, D.C., for Defendant Siemens Transportation Systems, Inc.
Arnd N. von Waldow, Esq., Paul P. Rooney, Esq., Reed Smith LLP, New York, NY, for Defendant Robert Bosch Corp.
Eileen T. McCabe, Esq., Stephen Roberts, Esq., William Lalor, Esq., Mendes & Mount LLP, New York, NY, for Defendant Wika Instrument Corp.
Nancy Ledy-Gurren, Esq., Ledy-Gurren, Bass & Siff LLP, New York, NY, for Defendant Hydac Technology Corp.
E. Gordon Haesloop, Esq., Bartlett McDonough, Bastone & Monaghan LLP, Mineola, NY, for Defendants American Cyanamid Inc. and Omniglow Corp.
John F. Tully, Esq., Robert Owen, Esq., Fulbright & Jaworski LLP, New York, NY, for Defendant Exxon Mobil.
These cases arise from a disaster that occurred on November 11, 2000, in which a ski train in Kaprun, Austria caught fire, killing 155 people. American and foreign survivors and/or relatives of those who died in the fire brought a number of lawsuits in federal court against numerous defendants alleging, inter alia, negligence and strict liability. The Judicial Panel on Multidistrict Litigation assigned these actions to this Court for coordinated or consolidated pretrial proceedings. The actions within this multidistrict litigation ("MDL") fall easily into two groups — those filed on behalf of American plaintiffs,1 and those filed on behalf of foreign plaintiffs. There are five actions falling in the latter category, and defendants now jointly move to dismiss three of them ("Blaimauer," "Geier" and "Mitsurnoto v. Robert Bosch") on several grounds, including forum non conveniens.2 For the reasons stated below, defendants' motion is granted, and all five of the foreign plaintiffs' actions are dismissed.3
Both Blaimauer and Geier were filed originally on November 10, 2003, and since have been amended numerous times. According to the most recently amended complaints, the Blaimauer plaintiffs all hail from Germany, Austria, Japan and Slovenia;5 the Geier plaintiffs are all "citizens and/or residents of Germany."6 The defendants in both actions are identical and include the following parties: Cyalume Technologies Inc., Omniglow Limited Partners of New York ("Omniglow"), Siemens Transportation Systems Inc. ("STS"), Bosch Rexroth Corporation ("Bosch"), Hydac Technology Corporation ("Hydac") and Wika Instrument Corporation ("Wika").
Because all defendants named in Blaimauer and Geier are American corporations, this Court presumably has federal diversity jurisdiction pursuant to section 1332 of title 28 of the United States Code.7 Although several defendants' individually-filed motions to dismiss raise colorable jurisdictional questions, I do not reach them here, as this Court "has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection."8
"Under the doctrine of offensive collateral estoppel, a plaintiff may preclude a defendant from relitigating an issue the defendant has previously litigated and lost to another plaintiff."9 In order to bar a defendant from raising a legal issue on collateral estoppel grounds, a plaintiff must show that (1) the issues in both proceedings are identical; (2) the issue in the prior proceeding was actually litigated and decided; (3) the defendant had a "`full and fair opportunity" to litigate the issue in the prior proceeding; and (4) "the issue previously litigated ... [was] necessary to support a valid and final judgment on the merits.'"10
"Forum non conveniens is a discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim."11 The doctrine authorizes courts to dismiss cases where "an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience."12 Courts may decline to exercise jurisdiction under this doctrine when it is determined that, weighing "relative advantages and obstacles to fair trial" in the alternative fora, and the practical considerations of which forum will "make trial of a case [more] easy, expeditious and inexpensive," "the balance is strongly in favor" of the defendant's request for dismissal in favor of a more convenient forum.13
In deciding whether to dismiss for forum non conveniens, courts in this Circuit undertake a three-step analysis. First, courts determine the degree of deference due the plaintiffs choice of forum.14 Second, courts examine whether there is an adequate alternative forum for the dispute.15 Third, courts engage in a balanced assessment of the competing private interests of the parties in the choice of forum, and the public interests of the alternative fora under consideration.16 Throughout this analysis, the defendant bears the burden of showing that each step "tilt[s] strongly in favor of trial in the foreign forum."17 "The action should be dismissed only if the chosen forum is shown to be genuinely inconvenient and the selected forum significantly preferable."18
"Any review of a forum non conveniens motion starts with `a strong presumption in favor of the plaintiffs choice of forum.'"19 However, the strength of this presumption, and the degree of deference due the plaintiffs selection, "varies with the circumstances."20 The degree of deference to be accorded the plaintiff's choice of forum is not determinative of the final outcome; rather, it merely re-calibrates the scales for the remaining two steps of the analysis.21 "[T]he greater the degree of deference to which the plaintiffs choice of forum is entitled, the stronger a showing of inconvenience the defendant must make to prevail in securing forum non conveniens dismissal."22 Conversely, where less deference is due, "the easier it becomes for the defendant to succeed on a forum non conveniens motion by showing that convenience would be better served by litigating in another country's courts."23
A "plaintiff's choice of forum is generally entitled to great deference when the plaintiff has sued in the plaintiff's home forum."24 "The reason great deference is generally afforded a plaintiffs choice of its home forum `is because it is presumed to be convenient.'"25 By contrast, the choice of a United States forum by a foreign plaintiff is entitled to less deference, for the presumption that the choice is convenient "is much less reasonable."26
Courts must also consider whether the plaintiffs choice of forum appears to be "motivated by desire to impose tactical disadvantage on the defendant."27 Additionally, where indicia of forum shopping are present, the presumption in favor of the plaintiff's choice of forum "may not apply, either at all or with full force."28 Indicia of forum shopping may include: "attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case ... [and] the inconvenience and expense to the defendant resulting from litigation in that forum."29
After determining the appropriate degree of deference to accord plaintiff's choice, "the court must consider whether an adequate alternative forum exists."30 The movant bears the burden to demonstrate the adequacy of the alternate forum.31 32 The mere fact that the substantive law in the alternative forum is less favorable to the plaintiffs is not sufficient to show that the alternative forum is inadequate.33 However, proposed alternative fora have been ruled inadequate "where the alternative forum does not permit litigation of the subject matter of the dispute,"34 and where "a statute of limitations bars the bringing of a case in a foreign forum that would be timely in the United States."35
However, it is the plaintiff that carries the burden of proof when contesting the adequacy of the alternate forum on the basis that the court system is corrupt or inefficient, because "considerations of comity preclude a court from adversely judging the quality of a foreign justice system absent a showing of inadequate procedural safeguards."36 are reluctant "`to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.'"37 Consequently...
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