Opinion
NO. 3-01-CV-1576-L
April 23, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Delendant Bell Helicopter Textron, Inc. ("Bell") has filed a motion for reconsideration of the September 24, 2001 order denying its motion to dismiss on the ground of forum non conveniens. For the reasons stated herein, the motion should be granted and this case should be dismissed without prejudice.
I.
This is a products liability and negligence action arising out of a Bell Model 47 helicopter crash in Ontario, Canada on August 13, 1998. Plaintiffs allege that the crash was caused by the failure of at least one main rotor blade grip which separated from the main rotor head during flight. (Plf. Orig. Compl. at 3, ¶ 10). The forgings for the main rotor grips were manufactured by an affiliate of TIC United Corp. ("TIC defendants") and purchased from an authorized Bell dealer in the United States. ( Id. at 3, ¶ 11). As a result of this crash, the helicopter pilot, Roland Robert, sustained a broken back and other serious injuries. ( Id. at 4-5, ¶ 16). Robert and his wife, Janice, are both Canadian citizens.
On August 1, 2000, the Roberts sued Bell and the TIC defendants in the Galveston Division of the United States District Court for the Southern District of Texas. Bell subsequently filed a motion to dismiss on the ground of forum non conveniens. The TIC defendants joined in the motion. On November 7, 2000, while the motion to dismiss was still pending, TIC United Corp. filed for bankruptcy in the Northern District of Texas. Thereafter, Bell filed a motion to transfer venue to this district pursuant to 28 U.S.C. § 157 (b)(5). Although plaintiffs initially opposed the motion, they later withdrew their objection and consented to the transfer. The case was transferred to the Dallas Division of the Northern District of Texas on August 9, 2001. Robert v. Bell Helicopter Textron, Inc., No. G-00-449 (S.D. Tex. Aug. 9, 2001).
This statute provides:
The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending.28 U.S.C. § 157 (b)(5).
On September 24, 2001, the district judge originally assigned to the case summarily denied Bell's motion to dismiss. Bell now seeks reconsideration of that decision or, alternatively, findings of fact and conclusions of law. The motion has been fully briefed by the parties and is ripe for determination.
This case was originally assigned to Judge Joe Kendall, who resigned from the federal bench on January 22,2002. Upon his resignation, the case was reassigned to Judge Sam A. Lindsay and referred to Magistrate Judge Jeff Kaplan for pretrial management.
II.
A district court may revise or reconsider an interlocutory order at any time before a final judgment is entered. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir. 1993). Ordinarily, a motion for reconsideration is appropriate only when: (1) there has been an intervening change in controlling law; (2) new evidence exists that was not previously available; or (3) there is a need to correct a clear error of law or prevent manifest injustice. See Atkins v. Marathon LeTourneau Co., 130 FR. D. 625, 626 (S.D. Miss. 1990), citing Natural Resources Defense Council v. United States Environmental Protection Agency, 705 F. Supp. 698, 702 (D.D.C. 1989), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989).
Here, reconsideration is warranted because the district judge summarily denied Bell's motion to dismiss without articulating the reasons for his decision. The Fifth Circuit has held that a district court must follow the procedural framework of a forum non conveniens analysis. "A summary uisposition or failure to address the relevant principles or balance the relevant factors may constitute an abuse of discretion." McLennan v. American Eurocopter Corp., Inc., 245 F.3d 403, 424 (5th Cir. 2001). Since the case has now been reassigned to a different judge, the failure to conduct a forum non conveniens analysis can only be corrected by reconsideration of the motion.
III.
Bell argues that dismissal is proper under the doctrine of forum non conveniens because Canada is an adequate and available forum for the resolution of this dispute and both the relevant private and public interest factors militate in favor of dismissal. Plaintiffs contend that this case is not subject to a traditional forum non conveniens analysis because, as Canadian citizens, they have a statutory right to litigate their tort claims in federal district court under the Alien Tort Claims Act ("ATCA"). The Court will first consider the applicability of the ATCA.
A.
The ATCA provides that "[t]he district courts of the United States shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Under the Act, the commission of a tort that violates international law or a treaty of the United States can be redressed by a civil suit brought in federal district court. Smith v. Socialist Peoples Lybian Arab Jamahiriya, 101 F.3d 239, 241 (2d Cir. 1996), cert. denied, 117 S.Ct. 1599 (1997); see also Xuncax v. Gramajo, 886
F. Supp. 162, 180 (D. Mass. 1995).
Plaintiffs argue that Robert was injured because defendants violated an "agreement" between the United States and Canada regarding the import and export of aircraft parts. This "agreement" provides, in relevant part:
If the airworthiness authority of the exporting State certifies to the airworthiness authority of the importing State that the type design of a product, or a change to a product type design previously approved by the airworthiness authority of the importing State, complies with airworthiness and environmental criteria prescribed by the airworthiness authority of the importing State, the airworthiness authority of the importing State shall, in finding compliance with its own laws, regulations, standards, and requirements for granting type design approval, give the same validity to the technical evaluations, determinations, tests, and inspections made by the airworthiness authority of the exporting State as if it had made them itself . . .
(Plf. App., Exh. E at 8, § 5(a)) (emphasis added). Plaintiffs allege that Bell manufactured and exported a defective helicopter blade grip which did not meet United States airworthiness standards and was unsafe for operation. This, according to plaintiffs, constitutes a violation of the "agreement." (Plf. Resp. at 5). Bell responds that the "agreement" between the United States and Canada is not a "treaty" within the meaning of the ATCA because it was not made by the President or ratified by the Senate. (Bell Reply Br. at 3).
Assuming arguendo that the "agreement" at issue constitutes a treaty and that defendants are subject to liability for violations thereof, the ATCA does not preclude the Court from considering whether this case should be dismissed on the basis of forum non conveniens. See In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493, 500 (9th Cir. 1992), cert. denied, 113 S.Ct. 2960 (1993) ("Such limitations as venue and the doctrine of forum non conveniens are available in § 1350 cases as in any other."); Aguinda v. Texaco, Inc., 142 F. Supp.2d 534, 553-54 (S.D.N.Y. 2001) (citing cases applying forum non conveniens analysis to claims brought under ATCA and concluding that none of the "considerations special to these cases materially alters the balance of private and public interest factors" are relevant to such an analysis). Thus, contrary to plaintiffs' suggestion, the existence of an ATCA claim does not pretermit the forum non conveniens inquiry.
One commentator has noted that the ATCA does not confer federal jurisdiction over individual defendants acting independently of a foreign government. Rather, "jurisdiction has been granted over foreign states and individuals acting under the authority of a foreign state." 14A C. WRIGHT, A. MILLER E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3661.1 at 156 (3d ed. 1998) (citing cases).
B.
A case is subject to dismissal on the basis of forum non conveniens when the relevant public and private interests strongly favor a specific, adequate alternative forum. Delgado v. Shell Oil Co., 890 F. Supp. 1315, 1356 (S.D. Tex. 1995), aff'd, 231 F.3d 165 (5th Cir. 2000), cert. denied, 121 S.Ct. 1603 (2001). This determination involves a three-step inquiry which must be followed seriatim. Bans v. Sulpicio Lines, Inc., 932 F.2d 1540, 1551 (5th Cir.), cert. denied, 112 S.Ct. 430 1991). As movant, Bell bears the burden of proof on all elements of this analysis. Seguros Comercial Americas S.A. De C.V. v. American President Lines, Ltd., 933 F. Supp. 1301, 1307 (S.D. Tex. 1996).
1.
The first issue is whether an "available" and "adequate" forum exists. An "available" forum is one that has jurisdiction over the entire case and all parties. A forum is "adequate" when the parties are not deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might enjoy in an American court. See Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 835 (5th Cir.), cert. denied, 113 S.Ct. 2963 (1993).
The Court finds that Ontario, Canada is an "available" forum within the meaning of this test. All defendants have agreed to submit to the personal jurisdiction of an appropriate Canadian court and waive any statute of limitations defense that might apply. ( See Bell Mot., App. II at 1-2, ¶¶ 1 3; TIC Joinder, Exh. B). This concession renders Ontario available for purposes of a forum non conveniens analysis. See Veba-Chemie A. G. v. M/V Getafix, 711 F.2d 1243, 1245 (5th Cir. 1983). Seguros, 933 F. Supp. at 1308-09.
Notwithstanding this stipulation, plaintiffs argue that Ontario is not an "adequate" forum because its civil discovery rules are more restrictive than the Federal Rules of Civil Procedure. For example, Ontario law permits a litigant to depose only one corporate representative as a matter of right, precludes examination of a non-party witness or document production from a non-party without leave of court, and does not allow for the use of evidence obtained in discovery in a different proceeding. (Plf. App., Exh. F). Although these restrictions may make Ontario a less attractive forum for plaintiffs, they do not make it inadequate. A foreign forum is inadequate only if the plaintiff will be deprived of all remedies or treated unfairly. Baumgart, 981 F.2d at 835. The fact that a foreign jurisdiction has different or less favorable discovery procedures is not a relevant consideration unless it leaves the plaintiff with no remedy at all. See Doe v. Hyland Therapeutics Division, 807 F. Supp. 1117, 1123-24 (S.D.N.Y. 1992). Such is not the case here. Foreign jurisdictions with discovery rules much more restrictive than Ontario's have been found "adequate" for purposes of a forum non conveniens analysis. See id. at 1124 (finding Ireland to be an adequate alternative forum despite fact that pretrial discovery is limited to documents and depositions are not permitted). Nor is there any evidence to suggest that Ontario law is "so clearly inadequate or unsatisfactory that [it offers] no remedy at all." Piper, 102 S.Ct. at 265-66 n. 22. See also Quintero v. Klaveness Ship Lines, 914 F.2d 717, 728 (5th Cir. 1990), cert. denied, 111 S.Ct. 1322, citing Vaz Borralho v. Keydril Co., 696 F.2d 379, 392 (5th Cir. 1983), overruled on other grounds by In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d 1147. 1163 n. 25 (5th Cir. 1987) (recognizing presumption that the substantive law of a foreign jurisdiction is adequate). Indeed, other federal courts have recognized that Ontario provides adequate legal redress for injuries caused by defective products. See, e.g. Ledingham v. Parke-Davis Division of Warner-Lambert Co., 628 F. Supp. 1447, 1449-50 (E.D.N.Y. 1986) (Ontario law permits product liability claims to be brought under theories of negligence, failure to warn, and breach of implied warranty of merchantability).
Bell relies on the affidavit of Christopher Andrew Chekan, an attorney licenced to practice law in both Ontario and Michigan, in an attempt to show that plaintiffs' reading of the Ontario discovery rules is too restrictive. (Bell Reply to Mot. for Rec., Exh. A). This evidence, submitted for the first time in a reply brief on reconsideration, will not be considered by the Court. See Springs Industries, Inc. v. American Motorists insurance Co., 137 F.R.D. 238, 23940 (N.D. Tex. 1991).
For these reasons, the Court concludes that Ontario is an adequate and available alternative forum for the resolution of this dispute.
2.
The Court next must consider whether the private interest factors weigh in favor of dismissal. These factors include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses and the costs associated with the production of willing witnesses; (3) the enforceability of a judgment if one is obtained; and (4) any other practical problems that may affect the ease, expediency, and expense of trial. Gulf Oil Co., v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 LEd. 1055 (1947). The choice of an American forum by a United States citizen, although not dispositive, should be given deference in this analysis. Piper Aircraft Co., v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981); Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989). By contrast, because plaintiffs are citizens of Canada, their choice of an American forum is afforded little weight. Piper Aircraft Co., 102 S.Ct. at 255-56.
a.
The first consideration is the relative ease of access to sources of proof. The evidence shows that many, if not most, of the documents related to the design and manufacture of the helicopter parts at issue in this proceeding are located in both Texas and Canada. (Plf. App., Exh. D at 2, ¶ 5. Documents concerning the airworthiness certification of the helicopter and the rotor grips also sire available in both jurisdictions. ( Id., Exh. D at 2, ¶¶ 10-11). Although the main rotor grip was tested by a Bell metallurgist in Texas, copies of documents related to his inspection are also available at Textron's facility in Mirabel, Quebec. ( Id., Exh. D at 2, ¶ 8; Bell Mot., App. II at 1, ¶ 3).
While the location of this important evidence appears to be a neutral consideration, other documents appear to be available only in Canada. These include: (1) installation and maintenance records pertaining to the replacement of the main rotor grips in 1993; (2) documents and photographs related to the investigation conducted by the Canadian Transportation Safety Board; (3) records concerning Robert's training and experience as a helicopter pnot; and (4) inspection and maintenance records for the helicopter made the basis of this suit. (Bell Mot., App. I at 2-3, ¶¶ 6-8, 10). In addition, the crash occurred near Windsor, Ontario and the helicopter wreckage is being stored in Chatham, Ontario. ( Id., App. I at 2, ¶¶ 5, 9). Discovery in this case undoubtedly will require inspection of the crash site and the helicopter wreckage.
Moreover, documents relevant to Robert's damages, including medical bills and records, are available only in Canada. Contrary to plaintiffs' suggestion, the Court does not have the power to compel the production of these documents under Rule 34. See FED. R. Civ. P. 34(a) (party can be compelled to produce document in its "possession, custody, or control"); Clark v. Vega Wholesale Inc., 181 F.R.D. 470, 472 (D. Nev. 1998) (patient does not "control" his medical records in the sense mandated by Rule 34); Neal v. Boulder, 142 F.R.D. 325, 327 (D. Cob. 1992) (same). Nor can a federal court subpoena documents from non-parties located in Canada. See FED. R. CIV. P. 34(c) 45(b)(2). Consequently, the Court finds that this factor weighs in favor of dismissal.
Plaintiffs list five doctors, including one identified as Robert's "primary treating physician," who allegedly reside in Michigan. (Plf. Resp. at 18). However, as Bell points out in its reply brief, these doctors examined Robert at Bell's request. (Bell Reply Br. at 18-19). Bell reiterates that "all of Robert's treating physicians and all of their evidence are in Canada — outside this Court's jurisdiction." ( Id. at 19) (emphasis in original). Plaintiffs do not dispute this assertion in any of their pleadings.
b.
The second private interest consideration is the availability of compulsory process to secure the presence of unwilling witnesses and the costs of attendance for willing witnesses. Here, a significant number of witnesses are located in Canada. These witnesses include Robert's treating physicians. eyewitnesses to the accident, and the mechanics who worked on the helicopter. (Bell Mot., App. I at 2, ¶ 5). Plaintiffs themselves also live in Canada. ( Id.).
The mechanic who installed the rotor grips, Ken Eytcheson, apparently suffered a major cerebral vascular accident in June 1999. Eytcheson's treating physician, Irene C. Bergn, states that he is only able to answer simple yes or no questions. (Plf. App., Exh. H). Nevertheless, defendants are entitled to depose Eytcheson to determine the extent of his knowledge.
The only Texas-based witnesses identified by plaintiffs are unnamed employees of Bell, TIC, Ag-Rotors, and the FAA. (Plf. Resp. at 18). Without evidence that any of these witnesses are either unwilling or unable to travel to Canada for trial, or that their testimony is even relevant, this factor weighs in favor of dismissal.
c.
The third factor is the enforceability of a judgment if one is obtained. Defendants have stipulated that any judgment obtained in this case will not be contested solely because it is rendered in Canada. (Bell Mot., App. II at 3, ¶ 8; TIC Joinder, Exh. B). In view of this stipulation, this factor favors resolution of the dispute in a Canadian forum.
d.
Finally, the Court notes that Bell will be unable to implead potential third-party defendants if the case remains in this district. These additional parties, all of whom reside in Canada, include: (1) the mechanic who installed the replacement main rotor grips in 1993; (2) Ag-Rotors, Inc., the owner of the helicopter; and (3) Heli Co., the company that leased the helicopter before it was sold to Ag-Rotors. (Bell Mot. at 15 App. I at 2-3, ¶ 10).
The inability to implead potential third-party defendants strongly favors a forum non conveniens dismissal. See Piper Aircraft Co., 102 S.Ct. at 267; Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 374 (5th Cir. 1992); de Melo v. Lederle Laboratories, Division of American Cyanamid Corp., 801 F.2d 1058, 1063 (8th Cir. 1986). Plaintiffs counter that "[t]here is no possibility that any Canadian party's negligence caused or contributed to this accident" because the Canadian Transportation Safety Board concluded that the main rotor grips failed due to a manufacturing defect. (Plf. Resp. at 15). The problems with this self-serving conclusory assertion are obvious. Indeed, the CTSB report clearly states that "[i]t is not the function of the Board to assign fault or determine civil or criminal liability." (Plf. App., Exh. A at 2).
Accordingly, the Court finds that the private interest factors militate strongly in favor of Canada as a more convement forum for the resolution of this lawsuit.
3.
If the private interest factors weigh in favor of dismissal, no further inquiry is required. Baris, 932 F.2d at 1550-51. Nevertheless, the Court finds that the public interest factors also support dismissal. These factors include: (1) administrative difficulties flowing from court congestion; (2) the local interest in having localized controversies resolved at home; (3) the proposed alternative forum's familiarity with the law that governs the action; (4) the avoidance of unnecessary problems with conflicts of law or in the application of foreign law; and (5) the unfairness of burdening citizens with jury duty in an unrelated forum. Gulf Oil, 67 S.Ct. at 843. The central question to be resolved in analyzing these factors is whether the case has a general nexus with the forum sufficient to justify the forum's commitment of judicial time and resources. Seguros, 933 F. Supp. at 1313.
The predominate consideration in this case involves the potential application of foreign law. Were the Court to retain jurisdiction of this diversity action, it would be required to apply the choice-of-law rules of this forum. Klaxon Co. v. Stentor Electric Manufacturing Co., 61 S.Ct. 1020, 1021 (1941); In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 576 (5th Cir.), cert. denied, 117 S.Ct. 583 (1996). Texas has adopted the "most significant relationship" test in tort cases. Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 249 (5th Cir. 1990), citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420-21 (Tex. 1984). Under this test, the relevant factors in determining which law ultimately governs the resolution of a dispute are: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; and (3) the place where the relationship between the parties is centered. CPS International, Inc. v. Dresser Industries, Inc., 911 S.W.2d 18, 29 (Tex.App.-El Paso 1995, writ denied), citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971). The domicile, residence, nationality, place of incorporation, and place of business of the parties also are relevant considerations. Id. at 19. The number of contacts with a particular forum is not outcome determinative. Rather, the selection of applicable law depends on the qualitative nature of the contacts. Mitchell, 913 F.2d at 249, citing Gutierrez v. Collins, 583 S.W.2d 312, 319 (Tex. 1979).
Neither party has presented sufficient evidence or argument to enable the Court to perform a thorough choice-of-law analysis. However, it does not seem at all unlikely that Canadian law may apply to this dispute. In personal injury cases, the place of injury plays a central role in determining applicable law, unless the place of injury was merely fortuitous. Spence v. Glock, Ges.m.b.H., 227 F.3d 308, 315 (5th Cir. 2000), citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145, cmt. e. The helicopter at issue in this case was registered, owned, and operated by a citizen of Ontario, Canada and crashed during routime agricultural spraying activities in that province. The fact that the crash occurred in Ontario was not merely fortuitous.
Courts have recognized that the practical problems involved in gaining access to the relevant rules, statutes, and case law of a foreign jurisdiction favor a forum non conveniens dismissal. Seguros, 933 F. Supp. at 1313. Moreover, the Ontario courts are infinitely more familiar with the laws of that province. Allowing those courts to interpret and apply Canadian law to this case will avoid unnecessary difficulties that might arise should this Court attempt to do so.
RECOMMENDATION
Bell's motion for reconsideration should be granted. This case should be dismissed without prejudice on the ground of forum non conveniens.