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FAAT v. HONEYWELL INTERNATIONAL INC.

October 5, 2005.

KHASANOV FAAT FATKHIBOYANOVICH AND KHASANOVA ZALIA SHARIFOVNA, et al., Plaintiffs,
v.
HONEYWELL INTERNATIONAL INC., et al., Defendants.



The opinion of the court was delivered by: JOSEPH RODRIGUEZ, Senior District Judge

OPINION

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 granted.

  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, 2004.

  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.

  DISCUSSION

  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 (1947).

  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 plaintiff.
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 ...


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