King v. Cessna Aircraft Co.

• Decision Date: 27 March 2009
• Docket Number: No. 08-11033.,08-11033.
• Citation: 562 F.3d 1374
• Parties: Jack KING, as personal representative of the Estate of Jessica King, deceased, Plaintiff Cross-Appellee, Barbara Brega, Anette Forsman, individually and/or as personal representative and/or as the Person legally authorized under applicable law to bring this wrongful death case for herself, all potential beneficiaries and/or the Estate of Robin Forsman, deceased, et al., Plaintiffs-Appellants, v. CESSNA AIRCRAFT CO., a Kansas corporation, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

562 F.3d 1374

Jack KING, as personal representative of the Estate of Jessica King, deceased, Plaintiff Cross-Appellee, Barbara Brega, Anette Forsman, individually and/or as personal representative and/or as the Person legally authorized under applicable law to bring this wrongful death case for herself, all potential beneficiaries and/or the Estate of Robin Forsman, deceased, et al., Plaintiffs-Appellants, v. CESSNA AIRCRAFT CO., a Kansas corporation, Defendant-Appellee Cross-Appellant.

No. 08-11033.

United States Court of Appeals, Eleventh Circuit.

March 27, 2009.

Joel D. Eaton, Podhurst Orseck, P.A., Miami, FL, Gerald C. Sterns, Sterns & Walker, Oakland, CA, for Plaintiffs.

Miguel A. Estrada, Gibson, Dunn & Crutcher, LLP, Washington, DC, for Cessna Aircraft Co.

Appeals from the United States District Court for the Southern District of Florida.

Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:

Sixty-nine European plaintiffs appeal the district court's order dismissing their case against Cessna Aircraft Company on the basis of forum non conveniens. We find no abuse of discretion and therefore affirm.

I. BACKGROUND

This case arises out of a tragic plane crash that occurred at Linate Airport in Milan, Italy, on October 8, 2001. On that foggy morning, a private Cessna jet operated by Air Evex, a German charter company, made a wrong turn and taxied toward an active runway, causing it to collide with Scandinavian Airlines Flight 686, which was just taking flight. One hundred eighteen people died, including everyone on board both planes and four people on the ground, and others on the ground were injured.

In March 2003, a complaint was filed against Cessna Aircraft Company (Cessna) in the Southern District of Florida by the King family, acting as personal representatives of the estate of Jessica King (King Plaintiffs). Thereafter, 69 European plaintiffs (European Plaintiffs) brought suits against Cessna, which were consolidated with the King Plaintiffs' case for administrative purposes. On October 21, 2005, the district court granted in part Cessna's motion to dismiss the case as to the European Plaintiffs on forum non conveniens grounds, denied in part the motion with regard to the King Plaintiffs, and stayed the King Plaintiffs' case pending resolution of Italian disputes relating to the European Plaintiffs. King ex rel. Estate of King v. Cessna Aircraft Co., 405 F.Supp.2d 1374, 1381 (S.D.Fla.2005). After both groups of plaintiffs appealed, we vacated the district court's stay and dismissal orders and remanded the case. King v. Cessna Aircraft Co., 505 F.3d 1160, 1173 (11th Cir.2007). Without expressing any view on the correctness of the district court's forum non conveniens analysis, we instructed the district court to consider whether, knowing "it could not avoid dual proceedings by staying the King case, it might have dismissed all of the plaintiffs, including King, or allowed all of the plaintiffs to proceed here, or perhaps pursued some other avenue." Id.

On remand, Cessna renewed its motion to dismiss both the King Plaintiffs' and European Plaintiffs' complaints on the basis of forum non conveniens. The district court "elect[ed] to `pursue some other avenue'" and, for the reasons it previously gave, granted in part the motion to dismiss with regard to the European Plaintiffs and denied it in part with regard to the King Plaintiffs. King v. Cessna Aircraft Co., No. 03-20482, 2008 WL 276015, at *2 (S.D.Fla. Jan. 31, 2008). On February 11, 2008, Cessna filed a motion to amend the judgment, asking the district court to "certify its decision to dismiss the [European Plaintiffs] as a final judgment" pursuant to Fed.R.Civ.P. 54(b) and "include a certificate for interlocutory review pursuant to 28 U.S.C. § 1292(b)" of the portion of the order denying the motion to dismiss the King Plaintiffs. The district court issued a final judgment pursuant to Rules 54 and 58, but denied Cessna's motion for certification under § 1292(b). The European Plaintiffs appealed their dismissal, and Cessna filed a cross-appeal of the order "to the extent said order ... denied Cessna's motion to dismiss the claims of plaintiff Jack King."

II. JURISDICTION

Dismissal of a suit on the basis of forum non conveniens is a final, appealable order. Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir.1985). The district court did not consolidate the European Plaintiffs' case with the King Plaintiffs' case for all purposes, so the European Plaintiffs can appeal the dismissal of their case without waiting for a final determination of the King Plaintiffs' case. See Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1048-49 (11th Cir. 1989). The district court's order is final as to the European Plaintiffs, so we have jurisdiction to review their appeal.

We do not, however, have jurisdiction to review Cessna's cross-appeal. Unlike the main appeal, the denial of a motion to dismiss on the basis of forum non conveniens is not a final order. See Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 1953, 100 L.Ed.2d 517 (1988). Furthermore, we cannot infer the district court intended to certify for immediate review the denial of the motion to dismiss the King Plaintiffs. The motion for entry of a Rule 54(b) certification filed by Cessna asked for a Rule 54(b) certification only with regard to the dismissal of the European Plaintiffs, and the district court denied Cessna's request for certification of that denial under 28 U.S.C. § 1292(b). Cessna argues this Court has pendent appellate jurisdiction to review its cross-appeal. We disagree.

Pendent appellate jurisdiction is present when a nonappealable decision is "inextricably intertwined" with the appealable decision or when "review of the former decision [is] necessary to ensure meaningful review of the latter." Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995); see also Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir.1999). Under these guidelines, such jurisdiction can be present even when the pendent appeal involves a party not in the main appeal.¹ Still, the Supreme Court has signaled that pendent appellate jurisdiction should be present only under rare circumstances. See Johnson v. Jones, 515 U.S. 304, 318, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995) (indicating pendent appellate jurisdiction is only appropriate "sometimes"); Swint, 514 U.S. at 49-50, 115 S.Ct. at 1211 (expressing concern that "a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay ... collateral orders into multi-issue interlocutory appeal tickets"). As noted in Swint, a more expansive exercise of such jurisdiction would undermine the statutory scheme governing interlocutory appeals. Swint, 514 U.S. at 45-50, 115 S.Ct. at 1209-11; see also 28 U.S.C. § 1292(b), (e); Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.Cir.1996) (noting the many factors that weigh against exercising pendent appellate jurisdiction). Our Circuit has found pendent appellate jurisdiction in only limited factual scenarios.

In Fox v. Tyson Foods, Inc., we found there was pendent jurisdiction to review those portions of an otherwise nonappealable collective action order the district court relied on when denying the motion to intervene that was appealed. 519 F.3d 1298, 1302 (11th Cir.2008); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir.1997) (exercising pendent jurisdiction to review an otherwise nonappealable compel order because the appealed sanctions order was issued in part for the defendant's purported violation of the compel order). We expressly determined there was no jurisdiction, however, to review findings in the collective action order upon which the district court did not rely. Fox, 519 F.3d at 1302. In United States v. Lopez-Lukis, we exercised pendent appellate jurisdiction over an otherwise nonappealable order striking a paragraph of the indictment because the strike was "closely related to [the district court's] exclusion of the Government's evidence" that was on review. 102 F.3d 1164, 1167 n. 10 (11th Cir.1997). We reasoned that "review of the evidentiary ruling necessarily implicate[d] review of the order striking [the paragraph] from the indictment" because "[b]oth orders resulted from the same determination[.]" Id.

Importantly, we have found such jurisdiction did not exist when resolution of the nonappealable issue was not necessary to resolve the appealable one. See Summit Med. Assocs., 180 F.3d at 1335 ("[W]e may resolve the Eleventh Amendment immunity issue here without reaching the merits of standing[, so t]hese issues are neither `inextricably intertwined' nor `necessary to ensure meaningful review' of one another."); Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 n. 3 (11th Cir.1998) ("Because we may resolve the qualified immunity issue in this case without reaching the merits of appellants' challenge to ... standing, ... we conclude that the latter issue ... does not fall within our pendent appellate jurisdiction under Swint."); Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir.1997) (declining pendent appellate jurisdiction because the qualified immunity issue could be resolved "without reaching the merits of the remaining questions" raised by the parties).

In the Eleventh Circuit, we have never exercised pendent appellate jurisdiction to review an issue like the one raised by the cross-appeal. The district court did not base its decision of whether to dismiss the European Plaintiffs on its decision as to the King Plaintiffs. See King ex rel. Estate of King, 405 F.Supp.2d at 1378-81 (cited by King, 2008 WL 276015, at *2); cf. Fox, 519 F.3d at 1302; Chudasama, 123 F.3d at 1365. The orders did not result from the same determination because, although some of the factors in the forum non conveniens analysis applied equally to...