End in Sight for Long-Running Forum Non Conveniens Battle

The plaintiffs opposed the original forum non conveniens motion on the ground that the case was governed by the international aviation treaty known as the Montreal Convention of 1999 (Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, ICAO Doc. No. 9740 (entered into force Nov. 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292734)), which sets forth the exclusive fora in which a plaintiff may maintain an action falling within the terms of the treaty (i.e., (1) the domicile of the carrier; (2) the carrier’s principal place of business; (3) the place of business where the contract of carriage was made; (4) the place of destination, and (5) the principal or permanent residence of the passenger). The plaintiffs challenged the district court's authority to dismiss a Montreal Convention case on the basis of forum non conveniens where the action is brought in one of the exclusive forums permitted by the Montreal Convention.

In the first decision to address the availability of forum non conveniens dismissal under the Montreal Convention, the district court ruled that the doctrine of forum non conveniens is appropriate in a case governed by the Montreal Convention. See In re West Caribbean Airways, S.A., 619 F. Supp. 2d 1299 (S.D. Fla. 2007). Two years later, the Eleventh Circuit affirmed the district court's dismissal of the action on the same grounds, explicitly finding that the Montreal Convention does not preclude application of the forum non conveniens doctrine even where the plaintiffs have brought the action in one of the exclusive Montreal Convention forums. See Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009), cert denied sub. nom., Bapte v. West Caribbean Airways, 130 S. Ct. 3387 (2010). After the U.S. Supreme Court denied certiorari in 2010, the plaintiffs petitioned the court in Martinique to decline jurisdiction over their claims, in effect asking the court to rule that the U.S. court was wrong to dismiss the case when it was filed in one of the five mandated jurisdictions under the Montreal Convention. The plaintiffs argued that the Martinique court lacked jurisdiction because under French law (Martinique is an overseas department of the Republic of France), jurisdiction in Montreal Convention cases is determined solely by the plaintiff's choice of forum, and because the plaintiffs chose to file their actions in the Southern District of Florida, the Martinique court was without authority to override that choice and exercise jurisdiction over the case.

The Martinique Court of First Instance rejected the argument, as did the appellate court. The plaintiffs then petitioned France's highest court, the Cour de Cassation, which, on December 7, 2011, quashed the ruling of the French appellate court and held that a Montreal Convention action must be maintained in a forum chosen by the plaintiffs and, because the plaintiffs did not choose the Martinique court, the forum was "currently" unavailable for the litigation of the plaintiffs' claims.

The Cour de Cassation ruled that notwithstanding the fact that Martinique was one of the five permissible fora under the Montreal Convention, the plaintiffs' choice of forum should prevail, and once the plaintiffs filed in their chosen forum, it divested the French courts of jurisdiction over the case. The Cour de Cassation stated that the Montreal Convention "requires the plaintiff to have the sole option of deciding on the forum in which the action will be brought, without the possibility of a national rule of procedure thwarting the plaintiff's imperative choice of jurisdiction."

Armed with this decision, the plaintiffs returned to the Southern District of Florida and filed a motion seeking relief from the 2007 forum non conveniens dismissal order under Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) is equitable in nature and allows for a court to relieve a party from a final order based on extraordinary circumstances justifying relief. The plaintiffs posed two reasons for requesting relief from the FNC order: (1) Martinique no longer is an available forum in light of the decision of the Cour de Cassation that the forum was not "currently" available, and (2) the plaintiffs will suffer undue hardship if they cannot litigate their claims in the United States.

The district court flatly rejected the attempt to re-open the 2007 dismissal order finding that the plaintiffs had not acted in good faith in seeking dismissal of their claims in Martinique, where jurisdiction was otherwise proper. The court characterized the plaintiffs' strategy as a "four-year campaign to subvert the forum non conveniens dismissal," and an untimely "substitute for appeal" that "threatens to disturb the finality of the court's FNC order." In re West Caribbean Airways, 2012 U.S. Dist. LEXIS 74149 (S.D. Fla., May 16, 2012). The court analogized to cases involving blocking statutes invoked by foreign courts, where the U.S. courts have held that "once an American court has ruled that a foreign forum is available, a foreign ruling declining jurisdiction will not necessarily warrant reinstatement of the action, particularly where plaintiffs themselves have advocated against jurisdiction in the foreign forum." Id., citing Scotts Co. v. Hacienda Loma Linda, 2 So.3d 1013 (Fla. 3d DCA 2009) and Del Istmo Assur. Corp. v. Platon, 2011 WL 5508641 (S.D. Fla. Nov. 9, 2011).

The district court found that if "Martinique is unavailable, it is only because plaintiffs have made it so" and noted that there have been several cases where courts have refused to reconsider a forum non conveniens dismissal where the plaintiffs engaged in conduct that was designed to result in the rejection of the case by the foreign court. See, e.g., Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir. 2011) ("If the district court determines that the primary reason the Mexican courts declined to take jurisdiction of plaintiffs' case was plaintiffs' actions or inactions in the case, it retains discretion to again order dismissal, with appropriate conditions, if any."); MBI Grp., Inc. v. Credit Foncier du Cameroon, 616 F.3d 568 (D.C. Cir. 2010); In re Compania Naviera Joanna S.A. v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir. 2009) ( "'A party should not be allowed to assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct.’”); In Re Air Crash Over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d 1090, 1094 (N.D. Cal. 2011) (plaintiffs should not be permitted to "assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct."); Snaza v. Howard Johnson Franchise Sys., Inc., 2008 WL 5383155, *6 n. 4 (N.D. Tex. Dec. 24, 2008) ("Any attempt by a plaintiff to file in the wrong court or file surreptitiously expressly to defeat jurisdiction, of course, would be viewed as bad faith"); In re Bridgestone/Firestone, Inc. Tires Products Liab. Litig., 470 F. Supp. 2d 917, 920 (S.D. Ind. 2006) (district court refused to reinstate case where plaintiffs filed their action in Mexico with the clear purpose of having the case dismissed); Cruz v. Maritime Co. of Philippines, 655 F. Supp. 1214, 1216 (S.D.N.Y. 1987) (court denied plaintiff's motion to reinstate, noting that it appeared "that plaintiff's procurement of the dismissal of his action in the Philippine Regional Trial Court was merely a ruse to force the U.S. Court to accept jurisdiction").

In short, the district court rejected the notion that "a foreign court's determination that it lacks jurisdiction because of Plaintiffs' decision to contest jurisdiction in the alternative forum . . . renders the alternative forum, where jurisdiction is otherwise proper, unavailable."

By a decision dated May 6, 2013, the Eleventh Circuit affirmed the district court. While not as critical of the plaintiffs as the district court, the Eleventh Circuit held that plaintiffs failed to show that they are entitled to relief under Rule 60(b). The court noted that Rule 60(b) "seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court's conscience that justice be done in light of all the facts" and that, a motion under Rule 60(b)(6) must show that "absent such relief, an extreme and unexpected hardship will result." Because a motion for Rule 60(b) relief is a matter within the district court's sound discretion, an abuse-of-discretion standard applies on appeal and requires plaintiffs to "demonstrate a justification so compelling that the district court was required to vacate its [prior] order."

Addressing the particulars of the plaintiffs' argument, the court noted that the Cour de Cassation's ruling with respect to the application of the forum non conveniens doctrine does not abrogate the rulings of the district court and Eleventh Circuit to the contrary, and also does not warrant Rule 60(b) relief from those rulings. The Eleventh Circuit found one factor determinative of the appeal: that the first time the plaintiffs ever challenged the adequacy of Martinique as an alternative forum was in the French courts after dismissal by the U.S. courts. The court held that the motion to vacate "appears to be nothing more than an effort to raise arguments in opposition to the forum non conveniens dismissal which they failed to raise initially in their opposition to Defendants' motion to dismiss" and "such circumstances are not sufficiently extraordinary to warrant the requested relief."

It remains to be seen whether the plaintiffs will finally concede defeat in this forum battle or file yet another petition for certiorariin this case.

Keywords: litigation, mass torts, WCA Flight 708, Montreal Convention, Martinique, Cour de Cassation

^{Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}