Macedo v. Boeing Co., 80-1559

• Decision Date: 23 November 1982
• Docket Number: No. 80-1559,80-1559
• Citation: 693 F.2d 683
• Parties: Manuel Joaquim MACEDO, etc., et al., Plaintiffs-Appellants, v. The BOEING COMPANY, et al., Defendants-Appellees. Keith L. BOSKOFF, etc., et al., Plaintiffs-Appellants, v. TRANSPORTES AEREOS PORTUGUESES, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 683

693 F.2d 683

Manuel Joaquim MACEDO, etc., et al., Plaintiffs-Appellants, v. The BOEING COMPANY, et al., Defendants-Appellees.

Keith L. BOSKOFF, etc., et al., Plaintiffs-Appellants, v. TRANSPORTES AEREOS PORTUGUESES, etc., Defendant-Appellee.

No. 80-1559.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1980.

Decided Nov. 23, 1982.

Charles F. Krause, New York City, for plaintiff-appellants.

Donald M. Haskell, Haskell & Perrin, Chicago, Ill., George N. Tomplins, Jr., New York City, for defendants-appellees.

Before SWYGERT and FAIRCHILD, Senior Circuit Judges, and BARTELS,* Senior District Judge.

FAIRCHILD, Senior Circuit Judge.

On November 19, 1977, a Boeing Airliner owned and operated by Transportes Aereos Portugueses (TAP) crashed on landing at Funchal Airport, Madeira, Portugal. The flight had originated at Lisbon. One hundred thirty-two (132) persons on board were killed and 32 were injured.

A number of plaintiffs began an action, 79-C-2498, in the Northern District of Illinois, against TAP, Boeing, and five manufacturers of components. Diversity jurisdiction was alleged. TAP moved to dismiss for lack of complete diversity and, with respect to the five Boskoff plaintiffs, that if the entire complaint is not dismissed, the Boskoffs' claims against TAP be severed and stayed pending the outcome of prior pending litigation between the Boskoffs and TAP in a New York state court. The other defendants moved for dismissal on the grounds of forum non conveniens, stating the matter should be litigated in Portugal. Alternatively, they moved for transfer to the Western District of Washington. On January 11, 1980, 79-C-2498 was dismissed for lack of diversity. No appeal has been taken from that dismissal.

On November 14, 1979, however, plaintiffs had filed two other diversity actions, informing the court that the original action had essentially been separated into the two new actions, and suggesting that the motion of defendant manufacturers be deemed to have been made in the new Macedo action. Treating the motion as applicable to both new actions, the court granted dismissal on the ground of forum non conveniens. After a motion to reconsider, the Judge entered the order appealed from, dismissing the actions subject to the conditions that all defendants consent to the jurisdiction of the courts of Portugal and that defendants not raise any statute of limitations defense in Portugal.

Action No. 79-C-4771 was brought by five plaintiffs who make claims on account of the deaths of Leslie and Barbara Boskoff. Leslie and Barbara, residents of Florida, were the only United States passengers on the flight. The Boskoff plaintiffs reside in the United States, but none of them in Illinois. The defendant is TAP. It is claimed that TAP knew or should have known that the aircraft was unsafe and not airworthy and was not suitable for operation into an airport having runways less than 6,500 feet long, and that TAP operated the aircraft negligently. The Boskoff plaintiffs are also plaintiffs in an action pending in a New York state court. Boeing and TAP are defendants. The claim against TAP is the same.

Action No. 79-C-4772 was brought by fifteen plaintiffs who were injured, and by 157 plaintiffs on account of 68 deaths. All the injured plaintiffs are aliens and eight are citizens of Portugal. Of the 157 plaintiffs, 91 are citizens of Portugal, and all are aliens except the five Boskoff plaintiffs, and one resident of Massachusetts who is one of five plaintiffs asserting a claim on account of the death of one of the alien decedents. The defendants are Boeing and five manufacturers of components, i.e., United Technologies Corporation, engines; The Crane Company and Hydro-Aire, Inc., skid control system; B.F. Goodrich Corporation, wheels, tires, and brakes; and The Bendix Corporation, braking equipment. Describing the claims very broadly, they are, among other things, that defendants knew or should have known that the aircraft would be used to land at Funchal on a wet runway only 5,052 feet long, and that they failed to manufacture the aircraft and components so that the aircraft would not be unreasonably dangerous, were negligent with respect to manufacturing, testing, instructions, and warnings, and breached express and implied warranties.

We must examine the decision of the district court to determine whether it was a clear abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).

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. at 266.

In its January 11, 1980 decision, the district court adverted to the private and public interest factors enumerated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).

With respect to sources of proof, the Judge wrote that they

are located in several countries. The foreign plaintiffs maintain that the aircraft was defective and, therefore, relevant materials include, inter alia, documents relating to the design and specifications of the aircraft and to investigations into its safety. These documents are located in the United States. However, the wreckage of the aircraft, the airport, witnesses, maintenance records, air traffic controllers, documents relating to the operating procedures of TAP, the flight data recorder and transcripts of conversations of the crew, and official investigations and reports, are all in Portugal.... In addition, evidence relating to damages is located overwhelmingly in Portugal and other European countries although the evidence relevant to damages of American plaintiffs is located here.

With respect to compulsory process and cost of obtaining unwilling witnesses, the Judge said:

All witnesses to the air crash are located outside the United States. It is doubtful whether a court of the United States could enforce process compelling the attendance of persons, with relevant knowledge, who are not parties to the litigation. However Portuguese persons and agencies are, presumably, subject to the jurisdiction of the courts of Portugal which could enforce its process. The witnesses who can testify as to the design and manufacture of the aircraft or its parts are, for the most part, agents or employees of the defendants. Thus compelling their attendance should be no problem.

With respect to a view of the premises, the Judge noted plaintiffs' argument that a view is unnecessary, but stated that the circumstances of the crash are relevant to such a case.

As to public interest factors, the Judge considered the congestion of the docket of the district; the lack of any relation between the litigation and the community from which the jurors would come. He observed:

The fact that the aircraft was manufactured in the United States does not make the accident, involving a Portuguese airline, an airport in Portugal, predominantly Portuguese plaintiffs and Portuguese witnesses, any less a matter of local Portuguese interest. Plaintiffs cannot, by characterizing their causes of action as products liability claims, eliminate the very intimate relation of Portugal to the accident; the products liability claims arise in the context of a Portuguese accident.

The court noted that courts give more deference to the choice of forum of an American plaintiff, but pointed out that "Illinois is not the residence of the American plaintiffs, and Illinois bears no relation to any issue relevant to the litigation."

The manufacturer defendants had moved, alternatively, for transfer under 28 U.S.C. Sec. 1404(a) to the Western District of Washington. Conceding that the principal place of business of several defendants is in the Pacific Northwest, the Judge concluded that "the litigation of these claims should take place in Portugal" and that Seattle is not a significantly more convenient forum than Chicago.

Plaintiffs filed a motion for reconsideration, which was considered in a decision dated January 25, 1980. The Judge noted several matters brought to his attention by plaintiffs. Although he had previously overlooked the presence of the six American plaintiffs among the 157 in 79-C-4772, he concluded this did not alter the fact that "the controversy remains one involving a Portuguese accident of a Portuguese owned and maintained aircraft, witnessed by Portuguese citizens."

The Judge noted that, as plaintiffs asserted, TAP had moved for dismissal of 79-C-2498 for lack of diversity and had not claimed forum non conveniens. Thus there had not been a motion for dismissal of 79-C-4771 on that basis, although the Judge had so assumed. In any event, TAP filed its opposition to the motion for reconsideration, supporting the dismissal on the ground of forum non conveniens.

In the January 11 decision, the Judge had said, in finding the courts of Portugal a significantly more convenient forum, that all defendants will voluntarily submit to jurisdiction there, and "The courts of Portugal, furthermore, are able to provide complete relief. No one has argued to the contrary." On motion for reconsideration plaintiffs contended that the courts of Portugal cannot provide complete relief. Although deeming it unlikely that the courts of Portugal would refuse to entertain suits by aggrieved individuals, whether the suits be based on products liability or any other theory, the Judge ordered defendants to respond. The parties submitted affidavits of Portuguese counsel. Evidently, finding those of defendants more persuasive, the court denied the motion to reconsider on March 18, 1980, and on March 21, 1980 ordered the actions dismissed subject to the following conditions:

1. That all defendant...