Navarrete De Pedrero v. Schweizer Aircraft Corp.

• Decision Date: 30 March 2009
• Docket Number: No. 08-CV-117S.,08-CV-117S.
• Citation: 635 F.Supp.2d 251
• Parties: Rosa Cecilia NAVARRETE DE PEDRERO, Individually, and as Representative of the Estate of Sergio Pederero, et al., Plaintiffs, v. SCHWEIZER AIRCRAFT CORP., Defendant.
• Court: U.S. District Court — Western District of New York

635 F.Supp.2d 251

Rosa Cecilia NAVARRETE DE PEDRERO, Individually, and as Representative of the Estate of Sergio Pederero, et al., Plaintiffs, v. SCHWEIZER AIRCRAFT CORP., Defendant.

No. 08-CV-117S.

United States District Court, W.D. New York.

March 30, 2009.

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Harrison Bettis Staff, McFarland & Weems, LLP, D. Mitchell McFarland, of Counsel, Houston, TX, for Plaintiffs.

Bond Schoeneck & King, PLLC, Lillian Abbot Pfohl, Thomas D. Keleher, of Counsel, Syracuse, NY, for Defendant.

ORDER

WILLIAM M. SKRETNY, District Judge.

1. This Court received this wrongful death action on February 8, 2008, after transfer from the United States District Court for the Southern District of Texas. (Docket No. 32.) On June 16, 2008, Defendant filed a Motion to Dismiss for forum non conveniens. (Docket No. 52.) This Court referred Defendant's motion to the Honorable Leslie G. Foschio, United States Magistrate Judge, on June 30, 2008, for the issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket No. 57.)

On January 21, 2009, Judge Foschio filed a Decision & Order and Report & Recommendation, which, in pertinent part,¹ recommends that Defendant's Motion to Dismiss for forum non conveniens be granted. (Docket No. 75.) Plaintiffs filed objections to the Report & Recommendation portion of Judge Foschio's decision on February 24, 2009, which Defendant responded to on March 11, 2009. (Docket Nos. 79, 81.) This Court took the objections under advisement without oral argument.

3. This Court has carefully reviewed the Report & Recommendation section of Judge Foschio's Decision & Order and Report & Recommendation, as well as Plaintiff's objections thereto, and finding no error, will accept Judge Foschio's recommendation that Defendant's Motion to Dismiss be granted on forum non conveniens grounds.

IT HEREBY IS ORDERED, that this Court accepts Judge Foschio's Decision & Order and Report & Recommendation (Docket No. 75) in its entirety, including the authorities cited and the reasons given therein.

FURTHER, that Defendant's Motion to Dismiss on forum non conveniens grounds (Docket No. 52) is GRANTED, consistent with Judge Foschio's Report & Recommendation.

FURTHER, that Plaintiffs' Objections (Docket No. 79) are DENIED.

FURTHER, that this case is DISMISSED.

FURTHER, that the Clerk of the Court is directed to close this case.

SO ORDERED.

DECISION and ORDER

REPORT and RECOMMENDATION¹

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Hon. William M. Skretny on February 22, 2008 for disposition of all non-dispositive pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and on June 30, 2008 for report and recommendation on Defendant's motion to dismiss pursuant to § 636(b)(1)(B). It is presently before the court on the Defendant's motion to dismiss on the ground of forum non conveniens, filed June 16, 2008 (Docket No. 52) ("Defendant's Motion"), and Plaintiffs' motion for leave to file a sur-reply and to strike a reply declaration, filed August 1, 2008 (Docket No. 67) ("Plaintiffs' Motion").

BACKGROUND

This case was originally filed in the Southern District of Texas on June 22, 2007 (Docket No. 32, Att. 1) alleging Defendants' product liability and negligence. Plaintiffs, all Mexican citizens, are the heirs and beneficiaries of three individuals killed in a helicopter crash which occurred in Cuidad Juarez, Mexico on May 30, 2006. The helicopter was designed and manufactured in New York state by Defendant, Schweizer Aircraft Corp. ("Schweizer"), a Delaware corporation with its principal place of business in Horseheads, New York. The helicopter was purchased by ARINC Engineering Services, LLC ("ARINC") in New York on behalf of the United States government for use by the Mexican government in counter-narcotics efforts in Mexico. The helicopter was delivered by ARINC to Brownsville, Texas, where it was transported to Mexico by representatives of the Mexican government. On May 30, 2006, the helicopter landed for refueling at the International Airport of Cuidad Juarez, Mexico. After refueling, the helicopter took off and crashed into an industrial park near the Cuidad Juarez airport. The pilot and two passengers on board were killed and are believed to have been working for the Mexican government at the time of their deaths.

In the Texas district court, Schweizer moved to dismiss the suit for lack of personal jurisdiction. In response, Plaintiffs moved to dismiss the claims against ARINC, and to transfer the case to the Western District of New York based on diversity of citizenship between Plaintiffs and Schweizer and Schweizer's admission that personal jurisdiction could be maintained in this district.² On February 4, 2008, the court granted Plaintiffs' motions and the matter was transferred to this court on February 8, 2008 (Docket No. 32).

In this court, Schweizer filed its answer to the Complaint on May 29, 2008. As noted, on June 16, 2008, Schweizer filed the instant motion to dismiss based on forum non conveniens. In support of Defendant's motion, Schweizer filed a declaration of David Lopez, an expert in Mexican law (Docket No. 54) ("Lopez Declaration") and an affidavit of Steven Gleason, Schweizer's chief accident investigator (Docket No. 53) ("Gleason Affidavit"). In opposition, Plaintiffs filed the declaration of Henry Saint Dahl, Plaintiffs' Mexican law expert (Docket No. 61) ("Dahl Declaration"). Defendant filed a reply, including the reply declaration of Mr. Lopez (Docket No. 64) ("Lopez Reply Declaration"). Plaintiffs sought leave to file a sur-reply, simultaneously filing a motion for permission and the proposed sur-reply (Docket No. 67), including an additional declaration of Mr. Dahl (Docket No. 69) ("Dahl Sur-Reply Declaration"). As part of Plaintiffs' motion, Plaintiffs also seek an order striking portions of the Lopez Reply Declaration. On August 25, 2008, Schweizer filed a memorandum of law in opposition to the Plaintiffs' motion (Docket No. 73) ("Defendant's Memorandum"). On August 27, 2008, Plaintiffs filed a reply (Docket No. 74). Based in the following, Plaintiffs' motion is GRANTED in part and DENIED in part; Defendant's motion should be GRANTED.

FACTS³

According to Mr. Gleason, the helicopter was manufactured in New York state in 2005 (Gleason Affidavit ¶ 2). It was purchased by ARINC Engineering Services, LLC in New York on behalf of the United States government (Id. ¶ 3). ARINC delivered the helicopter to Brownsville, Texas, where representatives of the Mexican government took possession of the helicopter and flew it to Mexico, where the helicopter was subsequently maintained and operated (Id. ¶ 4). On May 30, 2006, the helicopter crashed shortly after take-off following refueling at the International Airport of Cuidad Juarez, Mexico, resulting in the deaths of the pilot and two passengers (Id. ¶¶ 5, 6). Mexican authorities led the investigation into the accident and retained control of the wreckage (Id. ¶¶ 9, 10).

Gleason represents that Schweizer will consent to the jurisdiction of the Mexican courts to litigate this action. Additionally, to the extent that any claims that Plaintiffs have against Schweizer became time-barred under Mexican law during the pendency of the litigation, Schweizer agrees to waive any applicable statute of limitations defenses available to Schweizer. Finally, Gleason states that if Defendant's motion is granted, Schweizer also will consent to produce in Mexico all necessary design witnesses and relevant documents for pretrial discovery and trial in Mexico's courts (Docket No. 53, ¶¶ 11-12).

Lopez stated that the Mexican Attorney General's office investigated the accident and determined that, following refueling, the helicopter's fuel tank filler cap was not properly replaced and secured (Lopez Declaration ¶ 1.6(f)). According to Lopez, upon take-off, fuel spilled out of the fuel tank, coming into contact with various heat-generating components of the aircraft, and ignited (Id.). The official investigation of the accident revealed the resulting fire caused the helicopter cabin to fill with smoke, causing the pilot to lose control of the aircraft, which then crashed (Id. ¶ 1.6(f)).

Lopez avers that Mexican civil law applies to acts and events that occur in Mexican territory (Lopez Declaration ¶ 3.1). According to Lopez, Plaintiffs' product liability and negligence claims against Schweizer would be treated by Mexican courts as claims for "subjective liability" under Article 1910 of the Federal Civil Code of Mexico (Id., ¶ 4.2), allowing Plaintiffs to recover "material" or economic damages for the deaths of Plaintiffs' decedents (Id. ¶ 4.5). Such damages would include two months wages for each decedent for their respective funeral expenses plus an indemnification to Plaintiffs in an amount equal to four times the highest daily minimum wage in effect in the region⁴ for each decedent for a period of 730 days. Lopez also opined that under Mexican law such compensation is shared by surviving spouses, minor children under the age of 16, disabled children 15 years and older, and surviving parents if they were economically dependent on the decedent (Id. ¶¶ 4.5-4.8). Additionally, under Mexican law, Lopez states Plaintiffs may be entitled to recover "moral" damages for the detrimental impact to their feelings and affections caused by the deaths of the decedents based on Defendant's liability for a defective product and negligence which caused the decedents' deaths (Id. ¶¶ 5.4-5.6). Mr. Lopez also stated that Mexican courts can compel the production of witnesses and evidence (Id. ¶¶ 7.1-7.6).

In opposition, Plaintiffs submitted a declaration of Henry Saint Dahl, who Plaintiffs represent as an expert in Mexican law. According to Dahl, under Mexican law, subject matter jurisdiction over this case by Mexican courts lies solely in the...