United States District Court, D. New Jersey
October 5, 2005.
KHASANOV FAAT FATKHIBOYANOVICH AND KHASANOVA ZALIA SHARIFOVNA, et al., Plaintiffs,
HONEYWELL INTERNATIONAL INC., et al., Defendants.
The opinion of the court was delivered by: JOSEPH RODRIGUEZ, Senior District Judge
This matter has come before the Court on Defendants Thales
Avionics, Inc.'s and Thales North America, Inc.'s (collectively
"Thales") Motion to Dismiss for Forum Non Conveniens. Defendants Honeywell International, Inc., Honeywell TCAS, Inc.,
L-3 Communications Corp., and Aviation Communications and
Surveillance Systems joined Thales's Motion to Dismiss. For the
reasons discussed herein, Defendants' Motion to Dismiss is
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
____ Plaintiffs filed a Complaint on July 1, 2004 in the
Superior Court of New Jersey against the above-named Defendants,
alleging, inter alia, that Defendants failed to warn, train
and/or provide users of its traffic collision avoidance
system*fn1 ("TCAS") of the proper method for resolving
conflicting TCAS and air traffic controller commands. (Complaint
¶ 29.) The action was subsequently removed to this Court by
Defendant L-3 Communications Corporation ("L-3") on September 2,
On July 1, 2002, a Bashkirian Airways ("BA") aircraft with
sixty-nine passengers and crew members aboard departed Moscow's
Domodedovo airport on a charter flight to Barcelona, Spain.
(Complaint ¶ 21.) That same evening, a DHL cargo aircraft
departed Bergamo, Italy on a flight bound for Brussels, Belgium.
(Complaint ¶ 22.) At 21:29:50, both aircraft were simultaneously
alerted by their respective airborne TCAS that the two planes
were flying at the same altitude on intersecting flight paths.
(Complaint ¶ 23.) The airborne TCAS instructed the crew of the BA
aircraft to "climb" and instructed the crew of the DHL aircraft
to "descend." (Complaint ¶¶ 24, 25.) However, air traffic
controllers instructed the crew of the BA aircraft to "expedite
descent." (Complaint ¶ 24.) Faced with conflicting information,
the crew of the BA aircraft descended. As a result, the BA aircraft and the DHL
aircraft collided in-flight, killing all onboard.
Thales argues that the Plaintiffs' action should be dismissed
under the doctrine of forum non conveniens. In order to
succeed, Thales must satisfy a two-part test. As a threshold
matter, Thales "must establish . . . that an adequate alternative
forum exists as to all defendants." Lacey v. Cessna Aircraft
Co., 932 F.2d 170, 180 (3d Cir. 1991) ("Lacey II"). Then, Thales
"must . . . show that the private and public interest factors
weigh heavily in favor of dismissal." Id. However, the doctrine
of forum non conveniens is to be "sparingly applied,
inasmuch as its application results in the dismissal of a case
over which the Court has jurisdiction and would ordinarily have a
duty to resolve." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
A. Existence of Adequate Alternative Forum
____ An alternative forum is usually deemed to be adequate
"when the defendant is `amenable to process' in the other
jurisdiction." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254
n. 22 (1981). However, an otherwise adequate alternative forum
may be inadequate if it offers "a clearly unsatisfactory remedy."
Lacey II, 932 F.2d at 180. An unsatisfactory remedy may arise
"when the subject matter of the suit is not cognizable in the
alternative forum." Piper, 454 U.S. at 254 n. 22.
In this case, Thales has agreed to condition dismissal on its
voluntary submission to the jurisdiction of the Court of First
Instance in Barcelona, Spain. (Def. Br., p. 25.) Moreover, Thales
has agreed to waive any statute of limitations defense.*fn2
Id. Plaintiffs do not dispute that there is a cognizable claim in the Court of First
Instance in Barcelona, Spain. In fact, the Plaintiffs currently
maintain an action in that court against different defendants
based on the circumstances that give rise to this action.
Therefore, the Court finds that Thales has met its burden to
prove that there is an adequate alternative forum.
B. Amount of Deference Due Plaintiff's Choice of Forum
The Supreme Court has held that "although `there is ordinarily
a strong presumption in favor of plaintiff's choice of forum, . . .
that . . . presumption applies with less force when the
plaintiff or real parties in interest are foreign.'" Lacey II,
932 F.2d at 178 (citing Piper, 454 U.S. at 255). When reviewing
a motion to dismiss on forum non conveniens grounds
the district court must indicate the amount of
deference it is giving to plaintiff's choice. Where a
foreign plaintiff has made a strong showing of
convenience, we hold that the district court must
indicate how far that showing goes toward putting the
foreign plaintiff on the same footing as a domestic
Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628
, 634 (3d
Cir. 1989). However, the Third Circuit does not require the
district court to identify with exact precision the amount of
deference given to plaintiff's choice of forum. Lacey II,
932 F.2d at 179. In Lacey II, the Third Circuit held that the
district court accorded proper weight to plaintiff's choice of
forum by stating that "because plaintiff is forced to choose
between two inconvenient fora, his choice is due `at least some
weight . . . and we will . . . hold defendants to establishing a
strong preponderance in favor of dismissal.'" Id.
Here, Thales argues that Plaintiff's choice of forum should be
accorded minimal deference because this case does not involve the
balance between two inconvenient fora. Thales submits that Spain is more convenient because Spain has
jurisdiction over both Thales, by consent upon dismissal, and BA,
under Article 28 of the Warsaw Convention. (Def. Br., p. 27.)
Plaintiff, relying on Bhatnagar v. Surrendra Overseas Ltd.,
52 F.3d 1220, 1226 n. 4 (3d Cir. 1995), argues that even a
foreign plaintiff's choice of forum is "entitled to considerable
deference." (Pl. Opp., p. 18.) However, in Bhatnagar, the
Third Circuit confirmed that a foreign plaintiff's choice of
forum is entitled to less deference than that of a plaintiff who
resides in the forum. 52 F.3d at 1226 n. 4. Bhatnagar is not of
use to the Plaintiffs because unlike the plaintiff there, who was
faced with the choice of two inconvenient fora, the Plaintiffs
here have already chosen to litigate their claims against certain
defendants in Spain.
While the Court is mindful that a plaintiff's choice of forum
should be accorded great weight, a foreign plaintiff's choice of
forum is entitled to less deference absent a "strong showing of
convenience." Lacey II, 932 F.2d at 179 (emphasis added).
Because some evidence crucial to Plaintiffs' claim is likely to
be found in the United States, this Court concludes that
Plaintiffs' choice of forum should be accorded a small amount of
deference, although not nearly the level of deference owed to a
domestic plaintiff defending a motion to dismiss for forum
C. Private Interest Factors
The Supreme Court has enumerated a list of private and public
interest factors to guide the district courts forum non
conveniens analysis. The private interest factors include, but
are not limited to, relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling
witnesses; cost of obtaining attendance of willing witnesses; and
possibility of view of premises. Gulf Oil, 330 U.S. at 508.
1. Relative ease of access to sources of proof
"In examining the relative ease of access to sources of proof . . .
the district court must scrutinize the `substance of the
dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties
are critical, or even relevant to, the plaintiff's cause of
action and to any potential defenses to the action.'" Lacey v.
Cessna Aircraft Co., 862 F.2d 38, 46 (3d Cir. 1988) ("Lacey I")
(quoting Van Cauwenberge v. Biard, 486 U.S. 517, 528 (1988)).
While it may be true that evidence relating to the design process
of an operator's manual exists in the United States, "evidence of
[a] defendant[`s] negligence constitutes only one element of the
case plaintiffs must present to sustain their burden of proof.
Plaintiffs will also need to establish proof of causation,
product identification, injury, and damages." Doe v. Hyland
Therapeutics Div., 807 F. Supp. 1117, 1125 (S.D.N.Y. 1992). It
is likely that this evidence "might not be easily accessible by
the party seeking dismissal." Miller v. Boston Scientific
Corp., 380 F. Supp. 2d 443, 451-52 (D.N.J. 2005).
The sources of proof needed by the Plaintiffs to prove their
case and by Thales to prove its defenses are located in both the
United States and Europe. Thales argues that Plaintiffs have
access to all of the necessary evidence that is currently located
in Spain, Russia, and the United States. (Def. Br., p. 29.)
First, Thales maintains that evidence relating to European
aviation regulations, including instructions regarding right of
way and resolving conflicts with TCAS is in Europe, and that as a
member of the European Union ("EU"), Spain will be able to compel
the production of other EU countries. Id. Second, Thales
maintains that as a condition of dismissal, it will make relevant
evidence available to Plaintiffs in Spain. Id. Third, Thales
distinguishes this case from one where the parties have already
engaged in significant discovery in the United States. Id. at
29-30. Finally, Thales contends that only a small part of the
necessary evidence is actually available in the United States.
Id. at 30.
Plaintiffs argue that the true focus of this case is whether
Thales "fail[ed] to clearly and unambiguously instruct pilots and
operators to follow the TCAS commands when faced with conflicting ground-based air traffic control instructions." (Pl.
Opp., p. 21.) Plaintiffs maintain that to the extent evidence
relating to the European aviation regulations is necessary, the
information is before the Court by way of the German Federal
Bureau of Aircraft Accidents Investigation ("BFU") report. Id.
at 19. Plaintiffs concede that an issue exists regarding the
conduct of the employees at the Zurich Air Control Center
("ACC"), but argue the operations of the Zurich ACC are set forth
fully in the BFA report. Plaintiffs further note that this Court
should take judicial notice that the lone air traffic controller
on duty when the aircrafts collided subsequently was murdered.
Id. at 21. Finally, Plaintiffs contend that the ambiguities in
Thales TCAS 2000 Pilots Guide, which is available "here in the
United States, in English, and [is] before this Court," were the
cause of the accident. Id. at 23.
Thales responds that the evidence in Spain is directly related
to its ability to prove a gap in the chain of causation. (Def.
Reply, p. 16.) Thales argues that evidence of BA's TCAS training
program for flight crews is available in Spain because the
proceedings against that airline have already commenced. Id.
____ Any evidence of the design, development, marketing,
packaging, and technical support documents relating to the TCAS
2000/TCAS II Traffic Collision Avoidance System Pilot's Guide
will be produced by the Defendants in any action before a Spanish
court. (Def. Br., p. 29.) Moreover, the Spanish court may compel
discovery of necessary documents within the Defendant's control.
See Tomás Fernández-Quirós Tuñón and Alejandro Ferreres
Comella Decl. ¶ 31.*fn3 The Court finds that evidence outside the United States is more
easily accessible in Spain, where related proceedings have
already begun, because the evidence necessary for Plaintiffs to
prosecute their case is presently assembled. The evidence of
damages for Plaintiff's decedents, approximately thirty, is all
located in Russia (and Spain by way of Plaintiffs' corollary
action against BA). (Def. Reply, p. 19.) See In re Air Crash
over Taiwan Straits, 331 F. Supp. 2d 1176, 1196 (C.D.Cal. 2004)
("While the parties dispute the location of the relevant
liability proof, there is no question that damages proof is
overwhelmingly located in Taiwan. Given the number of decedents,
the volume of this evidence is substantial."). Moreover, in order
for Thales to defend Plaintiff's action based on a theory of lack
of causation, it must be able to access the very same evidence
available in Spain. In addition, this case differs from both
Lacey, 932 F.2d at 183-84, and Lony, 886 F.2d at 630, because
unlike the defendants in those cases, who had sold their
respective businesses, Thales remains in control of the
documentation associated with the development and manufacture of
the TCAS Pilot's Manual. Therefore, the Court finds that this
factor weighs in favor of dismissal.
2. Availability of compulsory process for attendance of
unwilling witnesses and cost of obtaining attendance of willing
____ Thales argues that the majority of witnesses will be those
who are knowledgeable about European aviation, and therefore,
located in Europe. (Def. Br., p. 30.) Thales also argues that to
the extent that witnesses in its employ are required, they will
be produced. (Def. Br., p. 30; Def. Reply, p. 18.) Moreover, it should be noted that Plaintiffs have
already instituted an action in Spain against BA placing some of
the necessary witnesses before the Spanish Court of First
Instance No. 41. (Pl. Opp., p. 2.) Plaintiffs argue that the
liability witnesses are located in the United States. In
addition, Plaintiffs argue that any witnesses not in the United
States are either subject to compulsory process or the Hague
Protocol. (Pl. Opp., p. 26.) Many of the witnesses proposed by
Plaintiffs will be required to travel whether the forum is New
Jersey or Spain.*fn4 Therefore, this factor weighs in favor
of dismissal because there are a number of witnesses that will
likely be in Europe, corollary proceedings are taking place in
Europe, and Thales agrees to make witnesses located in the United
States available in Europe.
____3. Possibility of view of premises
____ Thales suggests that it will be easier to view Zurich's
ACC and BA's training facility should the trial be conducted in
Spain. Plaintiff argues that the site of the crash, the Zurich
ACC and the training facility at BA, are immaterial as far as a
view of premises is concerned. The Court agrees with Plaintiff
that the view of the premises factor is at best neutral.
____ 4. Other factors
Thales argues that translation of documents into both English
and Spanish is wasteful and can be avoided by translating the
documents into Spanish for use in a single trial. (Def. Br., p.
32.) Plaintiffs argue that the documents are available in English
already, citing the BFA report as an example. Moreover,
Plaintiffs note that Russian translators are easily found in the
United States. Because some of the documents are translated to English
and interpreters are easily found in the United States, the Court
finds that this factor is neutral.
b. Miscellaneous judgments, impleader, and safety
____ Thales argues that the judgments factor favors dismissal
because they agree, as a condition of dismissal, that they will
honor any final judgment entered by the courts of Spain.*fn5
(Def. Br., p. 32.) Thales also notes that impleader and safety
are neutral because they have no plans to implead additional
parties and safety does not appear to be an issue. Id. at
32-33. Plaintiffs do not challenge any of these propositions
specifically. The Court finds that the miscellaneous factors are
D. Public Interest Factors
____ The public interest factors include, but are not limited
to, administrative difficulties (congestion of the Court); jury
burdens; local interest in the controversy; and familiarity with
the governing law. Gulf Oil, 330 U.S. at 508.
____ 1. Administrative difficulties (congestion of the Court)
Thales argues that this factor "overwhelmingly" supports
dismissal because a related action is already pending before the
Spanish courts. (Def. Opp., p. 34.) Plaintiffs do not discuss
specifically this factor in their brief. It is impossible for
this Court to determine whether the parties will enjoy speedier
resolution in Spain than in the United States on the information
provided; however, because the litigation in Spain has already
begun, it is unlikely that the resolution of Plaintiffs' claims
would be less speedy in the alternative forum. Therefore, while
not given tremendous weight, this factor does favor dismissal. 2. Jury burdens
Specifically, the Supreme Court has stated that "[j]ury duty is
a burden that ought not to be imposed upon the people of a
community which has no relation to the litigation. In cases which
touch the affairs of many persons, there is reason for holding
the trial in their view and reach rather than in remote parts of
the country where they can learn of it by report only." Gulf
Oil, 330 U.S. at 508-09. Thales argues that of approximately
forty parties, only two are residents of New Jersey. (Def. Br.,
p. 34.) Moreover, Thales suggests that none of the actions
alleged by Plaintiffs actually took place in New Jersey. Id.
Plaintiffs do not discuss this fact specifically. The Court finds
that this factor weighs in favor of dismissal.
3. Local interest in the controversy
In making a partial list of factors to be considered, the Court
stated that "[t]here is a local interest in having localized
controversies decided at home." Gulf Oil, 330 U.S. at 509. The
Court is required to "consider the locus of the alleged culpable
conduct, often a disputed issue, and the connection of that
conduct to plaintiff's chosen forum." Lacey I, 862 F.2d at 48
(quoting Van Cauwenberghe, 486 U.S. at 528). Here, it is
difficult to identify the locus of the alleged culpable conduct
because the Plaintiffs argue that Thales designed a defective
Pilot's Manual in the United States, which requires access to
evidence and witnesses located here in order to prove their
claim; while Thales argues that its design was not defective and
did not cause Plaintiffs' decedents' injuries, which requires
access to evidence and witnesses located in Europe in order to
prove its defense. However, the Court is not required to evaluate
the substance of each party's arguments at this point in the
litigation; rather, the Court should assume that both arguments
will be at issue in the trial. Boston Scientific,
380 F. Supp. 2d at 454 (citing Lacey II, 932 F.2d at 182).
Spain's interest in this litigation far outweighs the interest
of the people of New Jersey. Spain is more interested because the
BA aircraft was bound for Spain when it collided with the DHL
plane. (Def. Br., p. 1.) Moreover, litigation regarding this
accident has already commenced in Spain against BA. Id. at 1-2.
While the United States has an interest in ensuring that products
produced in this country by domestic companies are safe, New
Jersey's interest in these actions is minimal because a
substantial portion, if not all, of Thales's conduct relating to
liability occurred outside New Jersey. See Piper,
454 U.S. at 260-61 (holding that "the incremental deterrence that would be
gained if this trial were held in an American court is likely to
be insignificant"). Therefore, the Court finds that this factor
weighs in favor of dismissal.
4. Familiarity with the governing law
While the application of foreign law alone is an insufficient
reason to dismiss a case on forum non conveniens grounds,
Lacey I, 862 F.2d at 48, "the district court should
nevertheless consider the impact of choice-of-law problems on the
forum." Piper, 454 U.S. at 260 n. 29.
New Jersey applies the law of the jurisdiction with the
"greatest interest in governing the specific issue that arises in
the underlying litigation." Gantes v. Kason Corp., 679 A.2d 106
(N.J. 1996).*fn6 It is not clear from the briefs of the
parties what forum's law would apply, but given the interest of
the European counties involved in this litigation, it is likely
that the law of a jurisdiction other than New Jersey would apply
to this case. Russia, Germany, and Spain all have a great
interest in protecting their citizens through the resolution of
this action. "The uncertainty regarding the application of
[foreign] law is itself a factor that weighs in favor of dismissal."*fn7 Miller, 380 F. Supp. 2d at 456. However,
because of the uncertainty, the Court will not give great weight
to the choice-of-law factor in favor of dismissal.
E. Balance of Private and Public Factors
The Court finds that the balance of the public and private
factors weigh in favor of Thales. While the public interest
factors weigh in favor of dismissal, the private interest factors
overwhelmingly suggest this result. Forcing Thales to litigate in
this forum would be "oppressi[ve] and vexatio[us] to the
defendant out of all proportion with the plaintiff[s']
convenience." Piper, 454 U.S. at 241. Therefore, Thales has
overcome the deference that this Court must give to Plaintiffs
and the action must be dismissed.
For the foregoing reasons, Defendant's Motion to Dismiss for
Forum Non Conveniens  will be granted, and Plaintiffs'
Complaint will be dismissed, subject to the conditions proposed
An appropriate Order will issue this date.
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