Zermeno v. Mcdonnell Douglas Corp.

• Decision Date: 18 February 2003
• Docket Number: No. CIV.A.H-02-2862.,CIV.A.H-02-2862.
• Citation: 246 F.Supp.2d 646
• Parties: Julio Jasso ZERMENO, et al., Plaintiff, v. MCDONNELL DOUGLAS CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

Page 646

246 F.Supp.2d 646

Julio Jasso ZERMENO, et al., Plaintiff, v. MCDONNELL DOUGLAS CORPORATION, et al., Defendants.

No. CIV.A.H-02-2862.

United States District Court, S.D. Texas, Houston Division.

February 18, 2003.

COPYRIGHT MATERIAL OMITTED

Peter Michael Kelly, Kelly Jeremiah et al, Houston, TX, for plaintiffs.

David J Beck, Beck Redden and Secrest, Houston, TX, John D Dillow, Perkins Coie LLP, Seattle, WA, for McDonnell Douglas Corporation, The Boeing Company, defendants.

William V Dalferes, Jr, McGlinchey Stafford, New Orleans, LA, Erin F Parkinson, Vanessa Lee Vance, McGlinchey Stafford PLLC, Houston, TX, John D. Dillow, Perkins Coie, LLP, Seattle, WA, for Nasco Aircraft Brake, Inc., defendant.

John A Camp, Reed Smith LLP, Pittsburgh, PA, John D. Dillow, Perkins Coie, LLP, Seattle, WA, for Westinghouse Air Brake, Inc., defendant.

Martin E Rose, Rose*Walker LLP, Dallas, TX, for Crane Corp., defendant.

Jad J. Stepp, Houston, TX, John D. Dillow, Perkins Coie, LLP, Seattle, WA, for First Security Bank of Utah, N.A. Wells Fargo Bank, N.A., Aerovias de Mexico SA de CV, Wells Fargo Bank Northwest, N.A., defendants.

MEMORANDUM AND ORDER

ROSENTHAL, District Judge.

This case arises from an airplane accident in Reynosa, Mexico. On October 6, 2000, an AeroMexico flight from Mexico City landed at the Reynosa airport during bad weather. The aircraft left the runway during the landing and struck the house where Julio Jasso Zermeno and his family lived. Zermeno's wife and three of his children were in the house when the aircraft struck and died in the accident. Julio Jasso Zermeno filed suit in Texas state court on behalf of himself and his minor son, Julio Cesar de los Santos. Plaintiffs sued the aircraft manufacturer and designer, McDonnell Douglas Corporation and Boeing Company; the owner and lessor, First Security Bank of Utah, N.A., Wells Fargo Bank Northwest, N.A., and Wells Fargo Bank Northwest, N.A.; and the operator, Aerovias de Mexico, S.A. de CV. ("AeroMexico").¹ Plaintiffs asserted a Texas common law negligence and strict liability claim against McDonnell Douglas and its parent company, Boeing, and First Security and a negligence claim against AeroMexico. Plaintiffs sought damages under the Texas Wrongful Death Statute, Tex. Civ. Prac. & Rem.Code § 71.001 et seq., and under the Texas Survival Statute, Tex. Civ. Prac. & Rem.Code § 71.021 et seq. Plaintiffs subsequently added, and have moved for an extension of time to serve, two defendants, Crane Corporation and Hydro-Aire, Inc., alleging that they were involved in the design and manufacture of the aircraft braking system. (Docket Entries Nos. 24, 26, 36, 61).

Defendants removed the case to federal court, arguing that AeroMexico had been fraudulently joined and that the remaining parties were completely diverse to plaintiffs, giving this court jurisdiction.² Plaintiffs moved to remand to Texas state court.³ Before this court could rule on plaintiffs' motion to remand, defendants moved to dismiss on the grounds of forum non conveniens. (Docket Entries No. 34, 41). Plaintiffs filed a reply to this motion; defendants filed a response to the reply. Plaintiffs have moved for leave to file a sur-reply to defendants' response; defendants oppose this motion.

Based on a careful review of the pleadings; the motions, responses, and replies; the record evidence; and the applicable law, this court DENIES the motions by Crane and Hydro-Aire to dismiss for improper service and GRANTS plaintiffs' motion to extend time to effect service on these defendants. This courts conditionally GRANTS defendants' motion to dismiss on the basis of forum non conveniens. Plaintiffs' motion to remand is MOOT.⁴

The reasons for these rulings are set out below.

I. Background

On October 6, 2000, a DC-9 aircraft, leased by AeroMexico and operating as AeroMexico Flight 250, flew from Mexico City to Reynosa, Mexico. (Docket Entry No. 1, ¶ 4.1). A nearby tropical storm made the weather in Reynosa poor. (Docket Entry No. 34, Ex. B, ¶ 2.1.6). As the aircraft landed in Reynosa, it slid off the end of the runway and crashed into plaintiffs' house, killing Zermeno's wife and three of his children. (Docket Entry No. 1, ¶ 4.5). Zermeno and his son Julio were not home at the time.

The aircraft was designed and manufactured by McDonnell Douglas, a Maryland corporation with its headquarters in Illinois and with operations in Kansas, Oklahoma, Pennsylvania, and Washington, D.C. (Docket Entry No. 1, ¶ 7). McDonnell Douglas is a wholly-owned subsidiary of Boeing Company, which is headquartered in Illinois and which has operations in Washington, California, Missouri, and Kansas. (Id, ¶ 6; Docket Entry No. 2,¶ 6). Plaintiffs allege that the braking system was designed by or included components designed by Crane and/or Hydro-Aire. (Docket Entry No. 23, ¶ 5.1). Crane is a Delaware corporation with its principal place of business in Connecticut. (Id at ¶ 2.8). Hydro-Aire is a Delaware corporation with its principal place of business in California. (Id at ¶ 2.9). The plane was owned by defendant Wells Fargo Bank Northwest, N.A. (the successor-in-interest to First Security Bank of Utah, N.A.), a national banking association with its principal place of business in Utah and a subsidiary of defendant Wells Fargo, N.A., a national banking association with its principal place of business in California. (Docket Entry No. 23,¶ 6.1; Docket Entry No. 1, ¶ 8; Docket Entry No. 51, Ex. E).

AeroMexico leased the aircraft from Wells Fargo and was operating it when the crash occurred. (Docket Entry No. 23, ¶¶ 2.10, 7.1; 3.5). AeroMexico is a Mexican corporation with its principal place of business in Mexico City. (Docket Entry No. 65 (Declaration of Pablo R. Lopez, Vice-President of Engineering for Aero-Mexico), ¶¶ 4, 10; Ex. B). AeroMexico's Maintenance Programs Department is located in Mexico City. (Id at Ex. D). AeroMexico has a foreign air carrier permit granted by the United States Department of Transportation, allowing it to operate flights between points in Mexico and the United States. (Id at ¶ 4, Ex. B). Aero-Mexico also has an office in Houston, Texas. (Docket Entry No. 51, Ex. N). Juan Alejandro Corzo y Rosales, the pilot of the aircraft, is a Mexican citizen and lives in Mexico. (Docket Entry No. 63, ¶ 3). The accident occurred at the conclusion of a flight that originated and ended in Mexico.

The Mexican Civil Aeronautics Administration investigated the accident and issued a report on May 7, 2001. (Docket Entry No. 34, Ex. B). The report concluded that the probable cause of the accident was "landing and long contact, after a high approach with excessive speed as a result of a non-precision approach onto a flooded runway and under adverse meteorological conditions, [causing] the aircraft [to veer] off to the opposite end [of the runway]." (Id). The Mexican authorities investigating the accident sent parts of the braking and antiskid systems, as well as the flight voice and data recorders, to laboratories in the United States for analysis. (Docket Entry No. 34, Ex. B (Accident Report) at ¶¶ 1.11.1-1.11.2, 1.17.3). The report does not indicate that any other parts of the aircraft were sent out of Mexico. The tests of the braking system indicated that it functioned properly at the time of the accident. (Id at ¶ 1.17.4).

Most of the physical evidence and information the Mexican authorities used in investigating the crash was located in Mexico. The evidence included the aircraft itself and tape recordings of conversations between air traffic controllers in Monterrey and Reynosa. (Id. at ¶ 1.9). The Federal Attorney General's Office in Reynosa retained medical information about the decedents and the injured passengers. (Id. at ¶ 1.13). The aircraft maintenance records were kept at Aero-Mexico's maintenance headquarters in Mexico City. (Docket Entry No. 64, Declaration of Pablo Lopez, Vice President of Engineering for AeroMexico, ¶¶ 11-12).

After the accident, Zermeno executed settlement agreements and releases with defendant AeroMexico on behalf of himself and his surviving son. Zermeno signed agreements releasing all of his claims against AeroMexico in return for Mex$1,000,000, and releasing his son's claims for Mex$600,000. (Docket Entry No. 34, Ex. C). The settlement agreements stated that Zermeno had received counsel and was "free of all coercion and defect in consent" when he executed the documents. (Id.). Zermeno contends that the releases are ineffective. He asserts that he initially rejected AeroMexico's attempts to have him sign releases. (Docket Entry No. 51, Ex. B (English translation of Affidavit of Julio Jasso Zermeno)). He alleges that AeroMexico representatives took him to a hotel bar, gave him several glasses of whiskey, and tried again to have him sign the releases, but that he again refused. Zermeno claims that two days later, his attorney, Armendariz, again pressured Zermeno to sign the releases. Zermeno alleges that although his sister recommended Armendariz, AeroMexico paid the lawyer's fees. The next day, Zermeno finally agreed to sign the releases on behalf of himself and his son. Zermeno asserts that his release is void because he signed under duress and that his minor son's release is invalid because it was made without judicial supervision and approval.

In support of the removal, defendants argues that the releases are valid and binding under applicable Mexican law and preclude plaintiffs' claims against Aero-Mexico. (Docket Entry No. 33, pp. 13-16). Defendants also contend that under the applicable Mexican law, the statute of limitations has run and precludes plaintiffs' recovery against AeroMexico. (Id. at p. 11). Defendants contend that plaintiffs fraudulently joined AeroMexico to defeat federal diversity jurisdiction and urge this court to deny plaintiffs' motion to remand. (Id. at pp. 7-8). Plaintiffs respond that AeroMexico has not been fraudulently joined because...