Petition for Writ of Certiorari — Thomas Wood, Individually and as Personal Representative of the Estate of Philip Talmadge Wood, Petitioner v. The Boeing Co.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2019

Decided January 10, 2020

No. 18-7193

IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN

ON MARCH 8, 2014,

ELIZABETH SMITH, AS PERSONAL REPRESENTATIVE OF

THE SPOUSES, NEXT OF KIN, OTHER STATUTORY

BENEFICIARIES, AND THE ESTATES OF THE MH370

PASSENGERS (SEE COMPLAINT FOR STATUTORY

BENEFICIARIES), ET AL.,

APPELLANTS

MALAYSIA AIRLINES BERHAD, DOING BUSINESS AS

MALAYSIA AIRLINES, ET AL.,

APPELLEES

Consolidated with 18-7195, 18-7196, 18-7197, 18-7198

Appeals from the United States District Court

for the District of Columbia

(No. 1:16-mc-01184)

Stephen F. Rosenthal argued the cause for appellants

Thomas C. Gaspard, et al. With him on the briefs was

Floyd A. Wisner.

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Caitlyn E. Hubbard argued the cause for appellant

Thomas Wood. With her on the briefs were Marianne M.

Auld and Hugh G. Connor II.

Mary Schiavo was on the brief for appellants Elizabeth Smith, et al. Jodi W. Flowers entered an appearance.

Eric B. Wolff argued the cause for appellees. With him

on the joint brief were Gregory F. Miller, Telly Andrews,

and Richard A. Walker. Eric J. Rhine entered an appearance.

Before: WILKINS and RAO, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: This appeal arises out of the unexplained disappearance of Malaysia Airlines Flight

MH370 somewhere over the Southern Indian Ocean in the

early hours of March 8, 2014. A series of extensive

searches and investigations conducted over more than

four years yielded no definitive answers as to the cause of

this tragedy, and all passengers and crew members on

board the flight are presumed dead. Representatives of

many of the passengers filed lawsuits in the United States

asserting, inter alia, Montreal Convention claims against

Malaysia Airlines Systems Berhad, Malaysia’s national

airline at the time of Flight MH370, its current national

airline, Malaysia Airlines Berhad, and the airlines’ insurers, as well as state law products liability and wrongful

death claims against Boeing, which manufactured the aircraft in question in Washington state.

Those lawsuits were centralized into a multidistrict litigation in the United States District Court for the District

of Columbia and coordinated for pretrial purposes. Appellees moved jointly to dismiss for forum non conveniens

and the district court granted that motion in full, concluding that Malaysia is a more convenient forum to hear all of

the appellants’ claims. While the Court has great sympathy for the victims of this tragedy and their families, we

cannot disregard the narrow standard governing our review in this case. We conclude that the district court did

not clearly abuse its discretion in dismissing appellants’

lawsuits for forum non conveniens and affirm the decision

in full.

The district court’s opinion recounts the factual history

surrounding Flight MH370’s disappearance and the ensuing investigations in detail. See In re Air Crash Over S.

Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018). We will

therefore focus only on the facts pertinent to this appeal.

Malaysia Airlines Flight MH370 disappeared en route

from Kuala Lumpur International Airport in Malaysia to

Beijing, China, early in the morning on March 8, 2014. On

board Flight MH370 were 227 passengers and 12 Malaysian crew members. The 227 passengers were of 14 nationalities, including 152 Chinese citizens, 38 Malaysian

citizens, and 3 United States citizens. The aircraft in question was a Boeing 777-2H6ER that was designed and manufactured at Boeing’s facility in Washington state and delivered to the airline in new condition in May 2002.

An extensive search for the missing aircraft ensued following the plane’s disappearance. The search team ultimately concluded that Flight MH370 likely crashed in the

Southern Indian Ocean after running out of fuel, but neither the plane nor other critical pieces of evidence, such as

the cockpit voice recorder and flight data recorder, were

recovered. In addition to the search for physical evidence,

the Malaysian government took the lead on a separate civil

investigation into why Flight MH370 had disappeared.

This investigation culminated in a 449-page report, which

concluded that while the investigation team was “unable

to determine the real cause for the disappearance of

MH370,” human interference or error were more likely

the cause of the plane’s disappearance than aircraft or system malfunction. In connection with this investigation and

a related criminal investigation, the civil investigation

team and the Malaysian government conducted numerous

interviews of witnesses located in Malaysia, including airline employees, family members and acquaintances of the

Malaysian crew, air traffic controllers, cargo shippers, and

Malaysian investigators.

At the time of Flight MH370’s disappearance, Malaysia Airlines Systems Berhad (“MAS”) served as the national airline of Malaysia and the Malaysian government

held a direct, controlling stake in the company. After the

crash, the Malaysian government enacted the Malaysian

Airline System Berhad (Administration) Act 2015 (“Act

765”). Act 765 incorporated a new, separate entity—Malaysia Airlines Berhad (“MAB”)—as the new Malaysian

national airline, transferred MAS’s assets to MAB, and

placed MAS under administration. Under the explicit

terms of Act 765, MAB is not a successor corporation to

MAS and has not assumed any of MAS’s liabilities related

to Flight MH370.

Beginning in early 2016, a total of forty lawsuits related to Flight MH370’s disappearance were filed in various federal district courts across the United States, and

the Judicial Panel on Multidistrict Litigation transferred

them to the District of Columbia district court for pretrial

proceedings. The various plaintiffs, all legal representatives or beneficiaries of decedents, divided into two groups

in the proceedings below, one represented by Podhurst

Orseck, P.A. and Wisner Law Firm, P.C. (the “Podhurst

Appellants”), and another represented by Motley Rice

LLC and Spagnoletti & Co. (the “Motley Rice Appellants”). The parties are largely the same on appeal, except

that one appellant, Thomas Wood, now proceeds individually. Appellant Wood is a U.S. citizen and resident suing

on behalf of his deceased brother, Philip Wood, a U.S. citizen who was living in Malaysia at the time of Flight

MH370.1

Following more than a year of court-ordered discovery

on various threshold issues, appellees filed a joint motion

to dismiss under the doctrine of forum non conveniens.

MAS/MAB also sought dismissal on other threshold

grounds, including sovereign immunity under the Foreign

Sovereign Immunities Act (“FSIA”) and lack of subject

matter jurisdiction under the Montreal Convention. Relying on the Supreme Court’s decision in Sinochem International Co. v. Malaysia International Shipping Corp., the

district court declined to reach the jurisdictional challenges and instead dismissed on the basis of forum non

conveniens. In re Air Crash Over S. Indian Ocean, 352 F.

Supp. 3d at 35 (citing 549 U.S. 422, 425 (2007)). This timely

appeal followed.

II.

A party seeking dismissal for forum non conveniens

bears the burden of showing both (1) that an adequate alternative forum is available to hear the dispute, and (2) if

so, that the balance of certain public and private interest

factors strongly counsels in favor of trying the dispute in

the alternative forum. See, e.g., Agudas Chasidei Chabad

of U.S. v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir.

Numerous civil cases arising out of Flight MH370’s disappearance are also pending in Malaysia. Seventy-seven of the eighty-eight

decedents represented in the legal actions that comprise this litigation

are also represented in cases pending in Malaysia. Boeing has not

been named as a party to any of the Malaysian suits to date, but Boeing has consented to the jurisdiction of the Malaysian courts and

agreed to make all relevant evidence available in Malaysia as a condition of dismissal for forum non conveniens.

2008). The Supreme Court has instructed that “[t]he forum non conveniens determination is committed to the

sound discretion of the trial court.” Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 257 (1981). So long as the district

court “has considered all relevant public and private interest factors, and … its balancing of these factors is reasonable,” we must afford that decision “substantial deference” and will overturn only if we find a “clear abuse of

discretion.” Id. Under this narrow standard, we find no

basis to reverse the district court’s reasoned decision.

First, the district court did not abuse its discretion

when it concluded that Malaysia is an adequate, available

forum for appellants’ Montreal Convention and state law

products liability and wrongful death claims. Only the

Motley Rice Appellants directly challenge this determination on appeal. They argue that the Malaysian government “has demonstrated clear intent to, and did, deprive

[appellants] of any real adequate and available forum in

Malaysia” through its enactment of Act 765, which transferred all of MAS’s assets to MAB without deeming MAB

a successor entity to MAS. For the first time on appeal,

the Motley Rice Appellants also contend that Malaysian

law would provide such insignificant damages for appellants’ tort claims against Boeing that forcing appellants to

try those claims in Malaysia would “obliterate[] any real

likelihood of trial.”

We agree with the district court that the enactment of

Act 765 does not render Malaysia an inadequate forum. As

the district court explained, MAS appears to have an insurance policy that would apply to appellants’ Montreal

Convention claims—and even assuming Act 765 did render MAS judgment proof, a U.S. forum would not provide

any greater likelihood of redress. Moreover, because the

Motley Rice Appellants failed to raise any challenge to the

adequacy of tort damages under Malaysian law before the

district court, those arguments are forfeited. See Gov’t of

Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019)

(“Absent exceptional circumstances, a party forfeits an argument by failing to press it in district court.”).

In any event, in the context of a forum non conveniens

inquiry, “a foreign forum is not inadequate merely because

it has less favorable substantive law.” Agudas Chasidei

Chabad, 528 F.3d at 950 (citation and quotation marks

omitted); accord Piper Aircraft, 454 U.S. at 247 (“The possibility of a change in substantive law should ordinarily not

be given conclusive or even substantial weight in the forum non conveniens inquiry.”). Where, as here, it appears undisputed that an alternative forum would provide

a plaintiff at least some remedy, a district court acts within

its discretion in deeming that forum an adequate alternative to a U.S. court. See, e.g., Piper Aircraft, 454 U.S. at

254 n.22 (explaining that a forum will only be deemed inadequate “[i]n rare circumstances … where the remedy

offered by the other forum is clearly unsatisfactory,” such

as “where the alternative forum does not permit litigation

of the subject matter of the dispute”).2

Nor did the district court clearly abuse its discretion in

concluding that the balance of relevant public and private

interest factors weighs heavily in favor of trying appellants’ cases in Malaysia. The relevant public interest factors include, inter alia, the “‘administrative difficulties’

when ‘litigation is piled up in congested centers,’” the “‘local interest in having localized controversies decided at

In his discussion of the public interest factors governing the forum non conveniens analysis, Appellant Wood argues that his difficulty in securing the counsel of his choice in Malaysia “casts doubt on

whether Malaysia constitutes an adequate, alternative forum.” Neither Wood nor any of the Podhurst Appellants raised this argument

in the proceedings below. Thus, to the extent this passing reference

can be construed as a standalone challenge to Malaysia’s adequacy as

an alternative forum, that challenge has been forfeited. See Manitoba, 923 F.3d at 179.

home,’” and the desire to avoid requiring a court to “‘untangle problems in conflict of laws, and in law foreign to

itself.’” Shi v. New Mighty U.S. Tr., 918 F.3d 944, 952

(D.C. Cir. 2019) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 508–09 (1947)). The private interest analysis, on the

other hand, focuses on “‘the relative ease of access to

sources of proof,’” the costs and procedural mechanisms

required to secure the attendance of witnesses, and “‘all

other practical problems that make trial of a case easy, expeditious and inexpensive.’” Id. at 950 (quoting Gilbert,

330 U.S. at 508).

The district court found that Malaysia’s public interest

in hearing claims arising out of Flight MH370’s disappearance far outweighs that of the United States, even as to

the tort claims asserted against U.S.-based manufacturer

Boeing. The district court further held that the private

interest factors tilt strongly in favor of trying these cases

in Malaysia, given the overwhelming amount of evidence

and witnesses located in Malaysia and the potentially insurmountable challenges that would arise from attempting to make that evidence available in a United States

court.

We affirm on substantially the same grounds provided

in the district court’s well-reasoned opinion, but pause

here to address two points raised by appellants. The first

relates to the degree of deference the district court applied

to the various appellants. As the court recognized, the

starting point for the forum non conveniens analysis is “a

strong presumption in favor” of a plaintiff’s chosen forum.

Simon v. Republic of Hungary, 911 F.3d 1172, 1182 (D.C.

Cir. 2018) (quoting Piper Aircraft, 454 U.S. at 255–56).

But the precise degree of deference afforded a plaintiff’s

forum choice varies depending on the plaintiff’s connection

to the forum. A plaintiff who chooses to sue in his home

forum receives the strongest presumption, whereas a foreign plaintiff with minimal or no connections to the United

States is entitled to less deference. Piper Aircraft, 454

U.S. at 256. Accordingly, the district court afforded Appellant Wood, as a U.S. citizen and resident representing

a U.S. citizen decedent, “the highest degree of deference”

and tailored its analysis of the remaining appellants’ interests in having their claims heard in the United States to

their particular circumstances. In re Air Crash Over S.

Indian Ocean, 352 F. Supp. 3d at 45.

On appeal, the foreign appellants contend that the district court erroneously refused to afford any deference at

all to their decision to sue in the United States. They also

criticize the district court for failing to specify the precise

degree of deference it applied to them, claiming that

“[t]his omission, in and of itself, was reversible error.”

These arguments rest on a fundamental misconception of

what the forum non conveniens analysis requires. Indeed, this Court has stressed that “applying the correct

burden of proof is not a box-checking exercise.” Simon,

911 F.3d at 1185. What matters is not the particular words

a district court uses but whether the court’s analysis fits

the proper standard.

Here, the district court’s analysis reflected a careful

consideration of the foreign appellants’ interests in trying

these cases in the United States and a thoughtful balancing of the public and private interest factors with respect

to those individuals specifically. Moreover, as already

noted, the district court correctly recognized that Appellant Wood was entitled to the greatest degree of deference. Because the court concluded that even Wood’s substantial interest in trying these claims in the United States

could not overcome the significant evidentiary problems

posed by proceeding in a U.S. court, it necessarily followed

that the foreign appellants—who were concededly entitled

to less deference than Wood—could not succeed in showing that the balance of interests weighed in favor of maintaining their claims here. We find no reversible error in

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the district court’s reasoning regarding the appropriate

levels of deference afforded to appellants’ claims.

Second, appellants argue that the district court erred

by first declining to reach the separate sovereign immunity challenges raised by MAS/MAB and then relying on

the existence of potentially “intractable immunity questions” as a justification for its forum non conveniens dismissal. According to appellants, this analysis was inconsistent with Sinochem, under which a court may elect to

grant a motion for forum non conveniens while “bypassing” threshold issues relating to the court’s subject matter

jurisdiction. See 549 U.S. at 432.

As an initial matter, appellants incorrectly suggest

that the district court treated MAS/MAB’s immunity challenges under the FSIA “as granted for purposes of its forum non conveniens analysis.” Nor did the court impermissibly “leapfrog” the immunity questions and then rely

on the same unresolved immunity issues to deny appellants their chosen forum. Instead, the district court

merely conducted a preliminary assessment of

MAS/MAB’s immunity claims and concluded that “[t]he

potential of intractable immunity questions that might

stymie Boeing’s ability to implead other defendants raises

the prospect of precisely the kind of oppressive and vexatious outcome that forum non conveniens dismissal is designed to avoid.” In re Air Crash Over S. Indian Ocean,

352 F. Supp. 3d at 53 (citation omitted). Nothing in Sinochem requires district courts to conclusively determine

whether a defendant enjoys sovereign immunity before

considering immunity as a relevant factor in its forum non

conveniens analysis. Here, Boeing and MAS/MAB raise

serious arguments regarding MAS/MAB’s likely immunity, and it was entirely proper for the district court to recognize that serious jurisdictional questions exist and

weigh that as a factor in favor of dismissal.

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In addition, appellants argue that the district court

placed undue weight on sovereign immunity concerns as a

private interest factor favoring dismissal. The district

court’s opinion, however, makes clear that it considered all

relevant circumstances, including the potential immunity

issues, and concluded that “taken as a whole, the private

interest factors favor dismissal of these claims.” In re Air

Crash Over S. Indian Ocean, 352 F. Supp. 3d at 53 (emphasis added). Sinochem imposes no bar on a district

court’s ability to acknowledge the existence of meaningful

jurisdictional questions in determining whether “a foreign

tribunal is plainly the more suitable arbiter of the merits

of the case.” See Sinochem, 549 U.S. at 425. Thus, appellants’ Sinochem-based challenges also fail.

***

In considering appellees’ motion to dismiss for forum

non conveniens, the district court carefully weighed the

relevant public and private interest factors and reasonably

concluded that Malaysia is a more convenient forum to try

appellants’ claims. Because we find no “clear abuse of discretion” in the district court’s reasoning, we affirm.

So ordered.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

[November 21, 2018]

IN RE: AIR CRASH OVER

THE SOUTHERN INDIAN

OCEAN, ON MARCH 8, 2014

This Document Relates To:

MDL Docket No. 2712

Misc. No. 16-1184 (KBJ)

ALL CASES

MEMORANDUM OPINION

The legal claims in this multi-district litigation

(“MDL”) arise from one of the greatest aviation mysteries

of modern times: the disappearance of Malaysia Airlines

Flight MH370 somewhere in the southern Indian Ocean in

the early morning hours of March 4, 2014. Flight MH370

took off from Kuala Lumpur International Airport in Malaysia at 12:42 AM that morning, en route to Beijing,

China, with 227 passengers and 12 crew members aboard

the plane. Thirty-nine minutes after takeoff, while the

Boeing 777 aircraft was flying over the South China Sea

and transitioning from Malaysian to Vietnamese airspace,

Malaysian air traffic controllers lost radar contact with the

aircraft. At Malaysia’s behest, a massive international

search and rescue effort ensued, but neither the plane nor

any wreckage was recovered, and on January 28, 2015, the

Malaysian Department of Civil Aviation (“MDCA”) announced that all aboard Flight MH370 were presumed deceased. Some pieces of wreckage have since washed

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ashore on islands in the Indian Ocean and on the eastern

coast of Africa, but, to date, most of the plane remains unaccounted for, including the cockpit voice recorder and the

flight data recorder.

Following the disappearance of Flight MH370, litigation commenced in both Malaysia and in the United

States; many plaintiffs have filed suit in both jurisdictions.

In the United States, complaints were filed in California,

the District of Columbia, Illinois, New York, South Carolina, and Washington state, and the Judicial Panel on Multidistrict Litigation subsequently centralized the pretrial

proceedings with respect to all of these cases in this District. (See Transfer Order, ECF No. 1.) The complaints in

these matters can generally be grouped into two categories. First, there are cases that assert claims under the

Montreal Convention against the defendant airlines—Malaysia Airlines System Berhad (Administrator Appointed)

(“MAS”) and Malaysia Airlines Berhad (“MAB”)—and/or

their insurers, Allianz Global Corporate & Specialty SE

(“AGCS SE”), and Henning Haagen, an officer at AGCS

SE. Second, there are cases that assert common law

wrongful death and products liability claims against airplane manufacturer Boeing, including claims based on a

res ipsa loquitor tort theory. There is also a single complaint that resides in the overlap between these two

groups—it asserts Montreal Convention, wrongful death,

and personal injury claims, and names MAS, MAB, AGCS

SE, Haagen, and Boeing as defendants. All told, 40 complaints are currently pending in this MDL.

Before this Court at present are five ripe motions pertaining to particular threshold issues that various defendants have raised: (1) a joint motion seeking dismissal of all

pending cases based on the doctrine of forum non conveniens, in which Defendants argue that it would be more convenient to ligate these matters in Malaysia, as opposed to

the United States (see Joint Mem. in Supp. of Mot. to

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Dismiss on the Ground of Forum Non Conveniens (“FNC

Mem.”), ECF No. 37-1); (2) a motion by MAS and MAB

seeking dismissal of the claims against them on the

grounds that they are agencies of the Malaysian government and immune from suit in United States courts pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1330, 1602 (see Defs.’ MAS and MAB’s Mem. in Supp.

of Their Rule 12(b)(1) Mot. to Dismiss on the Ground of

Immunity Pursuant to the Foreign Sovereign Immunities

Act (“FSIA Mem.”), ECF No. 39-1) 1; (3) a motion by MAS

seeking dismissal of the Montreal Convention claims

against it on the grounds that no provision of the Convention provides a court in the United States with jurisdiction

over these claims (see Def. MAS’s Mem. in Supp. of Its

Rule 12(b)(1) Mot. to Dismiss on the Ground of Lack of

Subject Matter Juris. Pursuant to the Montreal Convention (“Montreal Convention Mem.”), ECF No. 38-1) 2; (4) a

motion by AGCS SE seeking dismissal of the claims

against it for lack of personal jurisdiction, because it is a

foreign company that did not engage in any conduct connected to the loss of Flight MH370 in any of the jurisdictions in which it has been sued (see Def. AGCS SE’s Rule

12(b)(2) Mot. to Dismiss for Lack of Personal Juris.

(“AGCS SE Pers. Juris. Mot.”), ECF No. 35-1); and (5) a

motion by AGCS SE and Haagen seeking dismissal for

failure to state a claim upon which relief can be granted, in

which they argue that Plaintiffs’ attempt to make them

representatives of MAS and MAB, based solely on their

status as alleged insurers of MAS, has no legal foundation

(see Defs. AGCS SE and Henning Haagen’s Mem. in Supp.

MAB and AGCS SE have moved to join this motion. (See Motion for

Joinder, ECF No. 41.)

MAB and AGCS SE have moved to join this motion. (See Motion for

Joinder, ECF No. 40.)

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of Their Rule 12(b)(6) Mot. to Dismiss for Failure to State

a Claim (“Reinsurer Rule 12(b)(6) Mem.”), ECF No. 36-1).

This Court has carefully parsed the myriad dismissal

arguments Defendants have presented, and as fully explained below, it has determined that, on balance, the

claims asserted in the consolidated complaints have a substantial and overriding nexus to Malaysia that outweighs

the less substantial connection to the United States. As

such, litigation of these claims in the United States is comparatively inconvenient, and Defendants’ joint motion for

dismissal based on forum non conveniens will be

GRANTED, and Plaintiffs’ cases will be DISMISSED

without prejudice. The remaining threshold motions will

be DENIED as moot. A separate Order consistent with

this Memorandum Opinion will follow.

I. FACTUAL BACKGROUND3

A. The Incident And Its Aftermath

1. Flight MH370’s Disappearance

At 12:42 AM on the morning of March 8, 2014, Flight

MH370 took off from Kuala Lumpur International Airport

in Malaysia, en route to Beijing, China. (See Malaysian

ICAO Annex 13 Safety Investigation Team for MH370,

Factual Information Safety Investigation For MH370

(March 8, 2015, updated on April 15, 2015) (“Factual Investigation Rpt.”), ECF No. 37-4, at 21; Malaysian

The facts contained within this section are derived from the complaints filed in the various underlying actions, as well as the exhibits

that the parties have attached to their various filings in this matter.

See Johnson v. PPI Tech. Servs., L.P., No. 11cv2773, 2012 WL

1865713, at *2 (E.D. La. May 22, 2012) (explaining that a court adjudicating a forum non conveniens motion “is not limited to the allegations in the complaint, but may consider all of the evidence before it”);

see also Goldberg v. UBS AG, 660 F. Supp. 2d 410, 419 (E.D.N.Y. 2009)

(relying on the complaint and materials that the parties had submitted

when ruling on a motion seeking dismissal based on forum non conveniens).

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Department of Civil Aviation Press Release (“MDCA

Press Release”), ECF No. 37-3, ¶ 3.) 4 MAS was the national airline of Malaysia at that time (see Decl. of Rizani

Bin Hassan, Ex. 2 to FISA Mem., ECF No. 39-3, ¶¶ 5, 8,

20–21), and 12 Malaysian citizens staffed Flight MH370—

a pilot, a first officer, and 10 cabin crew (see MDCA Press

Release ¶ 4; Decl. of Mohd Fuad Bin Mohd Sharuji, Ex. 3

to FNC Mem., ECF No. 37-5, at ¶ 15). Also on board were

227 passengers of 14 nationalities, including 152 Chinese

citizens, 38 Malaysian citizens, and three United States

citizens. (See Decl. of Tan Sri Dato Seri Adbull Hamid

Embong, Ex. 10 to FNC Mem., ECF No. 37-12, ¶ 13). 5

At 1:19 AM, while the aircraft was over the South

China Sea and transitioning from Malaysian airspace to

Vietnamese airspace, Malaysian air traffic controllers instructed Flight MH370 to contact Vietnamese air traffic

controllers on a specific radio frequency, a request that the

pilot in charge acknowledged with, “Good night Malaysian

Three Seven Zero.” (Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Safety Investigation Report

(July 2, 2018) (“Safety Investigation Rpt.”), ECF No. 1021, at 48, 477.) The pilot “did not read back the assigned

frequency, which was inconsistent with radio-telephony

procedures.” (Id. at 477.) This was the last recorded radio

transmission that the pilots of Flight MH370 sent, and two

Page numbers cited herein refer to those that Court’s electronic case

filing system automatically assigns.

The U.S. citizens were Philip Wood, Leo Meng, and Nicole Meng.

(See No. 1:16cv01063, Huang First Am. Compl. ECF No. 9, at ¶ 8; No.

1:16cv01048, Zhang 2d Am. Compl., ECF No. 7, ¶ 10; No. 1:16cv00439,

Smith Compl., ECF No. 1, at ¶ 8; and 1:16cv00053, Wood Compl., ECF

No. 1, at ¶ 23.) All three were living overseas at the time of the incident.

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minutes later, at 1:21 AM, Malaysian air traffic controllers

lost radar contact with the aircraft. (Id. at 48– 49.)6

“The Malaysian military radar and radar sources from

two other countries, namely Vietnam and Thailand, also

captured the disappearance of the radar position symbol

of MH370” in this same timeframe. (Id. at 49.) Once Malaysian air traffic controllers lost sight of Flight MH370 on

their radar, Malaysian military radar showed a “blip” that

appeared to be the plane. However, this “blip” appeared

to be diverting from Flight MH370’s northerly flight plan;

it briefly veered to the right, and then turned left dramatically, flying west-southwest across Malaysia, at variable

altitudes and speeds, before turning right when the plane

was south of Penang Island, off of the western coast of Malaysia. (See id. at 50, 55.) The “blip” indicated that the

plane was flying in a west-northwest direction, and it disappeared from the military radar entirely at 2:22 AM, 10

nautical miles north of a flight navigation waypoint known

as MEKAR. (See id. at 52, 55.)

The Boeing 777 the Malaysia Airlines used as equipment for Flight MH370 was equipped with a satellite communications system, and except for two brief periods, “the

aircraft [itself] communicated through the Inmarsat Indian Ocean Region . . . I-3 Satellite and the [Ground Earth

Station] in Perth, Australia.” (See id. at 165.)7 The satellite

connections were briefly lost sometime between 1:07 AM

and 2:03 AM, presumably as the result of equipment failing or being powered down, but Flight MH370’s satellite

Thirty minutes later, at 1:52 AM, a mobile phone tower at Bandar

Baru Farlim Penanang recorded a signal “hit” from the First Officer’s

mobile telephone, but no actual call took place. (See Safety Investigation Rpt. at 66.)

Plaintiffs represent that Inmarasat is located in the United Kingdom. (See Pls.’ Resp. to the Defs.’ Mot. to Dismiss Under the Doctrine

of Forum Non Conveniens, (“Podhurst FNC Opp’n’), ECF No. 68, at

13 n.4.)

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data unit logged back onto the system and sent a “handshake” at 2:25 AM. (See id. at 171.) The aircraft then initiated five additional “handshakes” before the satellite

communications system again briefly lost power, likely as

a result of fuel running low and engines losing power, but

then logged back on. (See id. at 171–175; 480.) The system

initiated a seventh and final “handshake” at 6:19 AM, but

when the Perth ground station attempted to contact the

plane again at 7:15 AM, it did not receive any response.

(See id. at 175–76.)

2. Search Efforts And Subsequent Investigations

Malaysia’s Minister of Transport authorized a team of

officials—known as the Malaysian ICAO Annex 13 Safety

Investigation Team for MH370 (hereinafter referred to as

the “Malaysian MH370 Investigation Team”)—to coordinate the initial search and rescue efforts, and also to investigate the cause of Flight MH370’s disappearance.

(MDCA Press Release ¶ 28.)8 On March 17, 2014, at Malaysia’s request, the Australian Transportation Safety

Board (“ATSB”) “took charge of the coordination of the

search and rescue operation[, and o]ver the next 6 weeks

The Convention on International Civil Aviation, also known as the

Chicago Convention, established the International Civil Aviation Organization (“ICAO”), a specialized agency of the United Nations that

works with the Convention’s 192 Member States (including the United

States and Malaysia) to establish standards for regulating international civil aviation. See About ICAO, available at https://www.

icao.int/about-icao/Pages/default.aspx; see also Convention on Int’l

Aviation, opened for signature Dec. 7, 1944, 61 Stat. 1180. Annex 13 to

the Chicago Convention, which adopts procedures for aircraft accident and incident investigation, requires a member state to investigate both incidents that take place inside its territory and also accidents involving aircraft registered in the member state in circumstances where the location of the incident cannot be determined to be

in any particular state. See Sections 5.1, 5.3 of Annex 13 to Convention

Int’l

Aviation

(available

https://www.emsa.europa.eu/retro/Docs/marine_casualties/annex_13.pdf).

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from 18 March, an intensive aerial and surface search was

conducted by assets from Australia, Malaysia, China, Japan, Korea, UK and the USA.” (ATSB, MH370—Definition of Underwater Search Areas (updated Aug. 18, 2014)

(“ATSB June 2014 Rpt.”), Ex. E to Pls.’ Resp. in Opp’n to

Defs.’ Mot. to Dismiss on the Ground of Forum Non Conveniens (“Motley Rice FNC Opp’n”), ECF No. 67-6, at 7.)

ATSB’s initial search for Flight MH370 was focused on

the South China Sea, which was the flight’s last known location as detected by air traffic control. “The search area

was later extended to the Straits of Malacca, to the west of

Malaysia, based on military radar showing that an aircraft

like Flight MH370 had made an air turn back from the

South China Sea and headed west back across the Malaysian Peninsula.” (Decl. of Hillary Barr (“Barr Decl.”), Ex.

5 to FNC Mem., ECF No. 37-7, ¶ 4.) Using the satellite

data “handshakes,” investigators plotted the plane’s likely

course, which included making a southern turn shortly after passing the northern tip of Sumatra, after the plane

had disappeared from military radar. (See Safety Investigation Rpt. at 184.) “The 52 days of the surface search involving aircraft and surface vessels covered an area of several million square kilometres[,]” and an extensive “sub

surface search for the aircraft’s underwater locator beacons was also conducted[.]” (Id. at 67.)9

Ultimately, the search team concluded that Flight

MH370 likely crashed in the Southern Indian Ocean after

running out of fuel. (See id.) “[T]he search and rescue

phase transitioned to a search and recovery phase” on

The subsurface search was massive in both scope and scale: “[t]he

underwater search started with a bathymetry survey which mapped a

total of 710,000 square kilometres of Indian Ocean seafloor and continued with a high-resolution sonar search which covered an area in

excess of 120,000 square kilometres.” (Safety Investigation Report at

67.)

20a

April 28, 2014 (MDCA Press Release ¶ 9), and on January

28, 2015, having not located the plane or any wreckage, the

MDCA announced that the “data supports the conclusion

that MH370 ended its flight in the southern Indian

Ocean[,]” away from any possible landing site. (Id. ¶ 20.)

Accordingly, the MDCA presumed that all passengers and

crew had perished. (Id. ¶ 23.)

Three pieces of confirmed wreckage and more than 20

pieces of likely wreckage have since washed ashore on islands in the Indian Ocean and on the eastern coast of Africa, but most of the plane remains unaccounted for, including the cockpit voice recorder and the flight data recorder. (See id. at 185–99.)10 In January of 2017, the governments of Malaysia, Australia, and China officially suspended the underwater search for Flight MH370. (See id.

at 67.) Thereafter, in January of 2018, a private company,

Ocean Infinity, entered into a contract with the Malaysian

government to conduct an additional underwater search

for wreckage, centered on an area that it believed was

most likely to contain wreckage from the aircraft. (See id.

at 67, 184.) Over a period of 90 days, Ocean Infinity

searched an additional 112,000 square kilometers north of

this initial search area, also to no avail. (See id.)

3. The Annex 13 Report And Criminal Investigation

With Australia taking the lead on locating the physical

remains of Flight MH370, the Malaysian MH370 Investigation Team—consisting of an Investigator in Charge and

18 additional subordinates—worked with representatives

from seven countries to determine why Flight MH370 had

disappeared; this investigation is known as “the Annex 13

Safety Investigation[.]” (See Safety Investigation Rpt. at

The various pieces of debris have been taken to different locations

for analysis, including France, Australia, and Malaysia. (See Barr

Decl. ¶ 13.)

21a

15, 443.) The United States participated in the Annex 13

Safety Investigation through the National Transportation

Safety Board (“NTSB”), because the United States is the

county of manufacture and design of the aircraft, and in

this regard, Boeing—which designed and manufactured

the aircraft at issue (see infra Part I.B)—served as a technical adviser to the NTSB. (Barr Decl. ¶ 9.)

Australia, the United Kingdom, Singapore, France,

China, and Indonesia also participated in the Annex 13

Safety Investigation. (See Safety Investigation Rpt. at

15.) The collective investigative effort involved interviewing more than 120 people, including MAS employees, crew

member relatives, Malaysia aviation officials, and representatives of companies that were shipping cargo on

Flight MH370. (See Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Interim Stmt., Safety Investigation for MH370 (9M-MRO) (Mar. 8, 2015) (“Safety Investigation Interim Stmt.”), Ex. 6 to FNC Mem., ECF No.

37-8, at 3.) The team also reviewed airline-maintenance

records, as well as Boeing’s records, air traffic control records and recordings, closed-circuit footage of the crew,

bank records, and statements from friends, relatives, coworkers, and medical providers of the crew members.

(See id.; Safety Investigation Rpt. at 71, 82.) Annex 13 investigators thoroughly researched the pilots and the crew

members, and even analyzed the voices on the flight’s radio transmissions to detect signs of stress. (See Safety Investigation Rpt. at 71–84.)

On July 2, 2018, the Malaysian MH370 Investigation

Team issued a 449-page report, which was the culmination

of the years-long Annex 13 Safety Investigation’s inquiry

into the causes of the flight’s disappearance. (See generally Safety Investigation Rpt.; see also id. at 21 (noting

that the “sole objective of the investigation [was] prevention of accidents and incidents [and not] to apportion

blame or liability”).)

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In that report, the team noted that it “was likely” that

the left turn that took the aircraft back over Malaysia “was

under manual control and not the autopilot.” (Id. at 475.)

However, the investigators could not determine whether

or not “the other two turns over the south of Penang and

the north of MEKAR were made under manual control or

autopilot.” (Id.) The report also found that Malaysian air

traffic controllers “did not comply fully with established

[air traffic control] procedures” and did not initiate emergency procedures “in a timely manner[,]” and that Vietnamese air traffic controllers had also failed to communicate timely with Malaysian controllers about the disappearance of the plane. (Id. at 476.)

With respect to the initial loss of communication, investigators reported that

[a]lthough it cannot be conclusively ruled

out that an aircraft or system malfunction

was a cause, based on the limited evidence

available, it is more likely that the loss of

communication (VHF and HF communications, ACARS, SATCOM and Transponder) prior to the diversion is due to

the systems being manually turned off or

power interrupted to them or additionally

in the case of VHF and HF, not used,

whether with intent or otherwise.

(Id. at 478.) However, the investigation did not otherwise

reveal any apparent issues with the crew, nor did it indicate any problems with the plane’s systems, maintenance,

or cargo. (See id. at 486–89.)

Ultimately, the Annex 13 Investigation Team reported

that it was simply “unable to determine the real cause for

the disappearance of MH370.” (Id. at 489.) According to

the report, this inconclusive result was primarily due to

the lack of aircraft wreckage or data from any of the flight

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recorders—an acute absence of critical information that

prevented investigators from definitively ruling in or ruling out any specific causes. (See id. at 488–89 (“Without

the benefit of the examination of the aircraft wreckage and

recorded flight data information, the investigation was unable to identify any plausible aircraft or systems failure

mode that would lead to the observed systems deactivation, diversion from the filed flight plan route and the subsequent flight path taken by the aircraft. However, the

same lack of evidence precluded the investigation from

definitely eliminating that possibility. The possibility of

intervention by a third party cannot be excluded either.”).)

The Annex 13 Safety Investigation was not the only review of the potential causes of the Flight MH370 disaster;

Malaysian authorities also launched a criminal investigation into Flight MH370’s disappearance. As part of the

criminal investigation, the Royal Malaysian Police seized

a flight simulator from the home of the pilot in charge (see

Safety Investigation Rpt. at 73), and analysis of this simulator revealed “that there were seven ‘manually programmed’ waypoint coordinates . . . that when connected

together, will create a flight path from [Kuala Lumpur International Airport] to an area south of the Indian Ocean

through the Andaman Sea” (id. (footnote omitted)). However, the analysis “did not find any data that showed the

aircraft was performing climb, attitude or heading

manouevres, nor did [it] find any data that showed a similar route flown by MH370.” (Id.) In connection with its investigation, the Royal Malaysian Police also obtained

statements “from the next of kin and relatives, doctors/care givers, co-workers, friends and acquaintances”

of the crew members, and reviewed “financial records of

the flight crew [and] CCTV recordings at [the airport in

Kuala Lumpur,]” along with “analy[zing] the radio

24a

transmission made between MH370 and ground Air Traffic Control.” (See id. at 404.)11

4. The Reorganization Of MAS And The Passage

Of Act 765

Malaysia Airlines System Berhad (referred to herein

as “MAS”) is a “Government Linked Company” under Malaysian law, meaning that “it is a company in which the

Government of Malaysia has a direct controlling stake.”

(FSIA Mem. at 16.) Following the disappearance of Flight

MH370, Khazanah Nasional Berhad—a political subdivision of the Government of Malaysia and its sovereign

wealth fund—purchased the remaining ownership shares

of MAS from minority shareholders, and MAS was delisted from the Malaysian stock exchange. (See id. at 17.)

The Malaysian government then enacted a law entitled the

Malaysian Airline System Berhad (Administration) Act

2015 (“Act 765”), pursuant to which MAS was placed under administration and a new, separate entity—Malaysia

Airlines Berhad (“MAB”)—was incorporated to operate

as the national airline. (See id.) Among other things, Act

765 empowers MAS’s Administrator to manage and compromise liabilities for the company (Act 765 §§ 9(1)(b–e));

defend MAS in litigation (id. §§ 10(g–h)); transfer assets

from MAS to MAB (id. § 10(o)); and liquidate the assets of

MAS (id. § 10(e)). (See id. at 32– 33.) MAB assumed certain rights and liabilities from MAS, but under the terms

of Act 765, MAB is not a successor corporation of MAS,

see id. § 25(1)(a), and has not assumed any liabilities in connection with Flight MH370, (see Ex. 5 to FNC Reply).

Citing to news reports, Plaintiffs contend that the United States’

Federal Bureau of Investigation also participated in the Royal Malaysian Police’s criminal investigation, including analyzing data from the

flight simulator. (See Podhurst FNC Opp’n at 16 n.20.)

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5. Litigation In Malaysia

As of the briefing of the threshold issues that are now

before this Court, there are 27 civil cases pending in the

High Court of Malaya at Kuala Lumpur (Civil Division)

relating to the loss of Flight MH370, and these cases have

been transferred to a single judge for coordinated proceedings. (Decl. of Saranjit Singh (“Singh Decl.”), Ex. 13

to FNC Mem, ECF No. 37-13, ¶ 7.) Of the 88 decedents

represented in legal actions that are part of the instant

MDL, 77 are also represented in the cases pending in Malaysia, and the defendants in the Malaysian cases include

MAS, MAB, AGCS SE, and a number of Malaysian governmental entities. (See id. ¶ 9.) Boeing has not been

named as a defendant in any of the Malaysian cases.

The Malaysian High Court has declined the plaintiffs’

request to stay the Malaysian proceedings pending resolution of the instant forum non conveniens motion. (See

id. ¶¶ 10–13.) In addition, the Malaysian High Court also

denied the request of some of the attorneys who have filed

MDL cases to be admitted to represent their clients in the

Malaysian matters. (See Decl. of Tommy Thomas, Ex. 1

to Podhurst FNC Opp’n, ECF No. 68-1, ¶ 11.)

B. The Design, Manufacture, And Maintenance Of

The Aircraft

The equipment for Flight MH370 was a Boeing 7772H6ER (Serial Number 28420) that was designed and

manufactured at Boeing’s facility in Washington state in

May of 2002, and was delivered to MAS in new condition

on May 31, 2002. (See Barr Decl. ¶ 17; Fact Investigation

Rpt. at 42.) It is undisputed that all of the records related

“to the design, manufacture, assembly, testing, and certification of the 777 model aircraft” are located in Boeing’s

facilities in Washington, as are the Boeing employees who

have knowledge of these matters. (See Barr Decl. ¶ 17.) In

addition, records related to any customer support that

26a

Boeing may have provided to MAS regarding the plane

are also located in the United States, possibly in California. (See id.)

After delivery of the aircraft, the MDCA certified the

plane as airworthy, and that certification was current at

the time of Flight MH370’s disappearance. (See Safety Investigation Rpt. at 409.) MAS was responsible for maintenance of the aircraft, and original records related to such

work are located in Malaysia, as are the MAS employees

who completed the work. (See Barr Decl. ¶¶ 12–13.) Review of MAS’s maintenance files during the Annex 13 investigation indicated that MAS conducted regular maintenance on the aircraft, and that “all applicable Airworthiness Directives for mandatory compliance were complied

with.” (See Fact Investigation Rpt. at 44; Safety Investigation Rpt. at 409–411.)12 The only maintenance issue that

the Annex 13 Investigation revealed was that the battery

on the plane’s solid state flight data recorder underwater

locator beacon was overdue for replacement. (See Safety

Investigation Rpt. at 183.)

II. PROCEDURAL HISTORY

A. The Commencement Of Litigation In The

United States

In early 2016, many of the legal representatives or beneficiaries of passengers who had perished on Flight

MH370 initiated litigation in the United States related to

the disappearance of the flight—a total of 40 cases were

initially filed in four different locations (the District of Columbia, California, New York, and Illinois). (See Sch. A to

Plaintiffs assert that there are “364 Airworthiness Directives currently posed on the FAA website” related to the Boeing 777-200 aircraft, many of which “concern potential electrical and structure failure[s] of the 777-200[.]” (Motley Rice FNC Opp’n at 7–8.) Plaintiffs

further contend that records pertaining to these directives are located

in the United States. (Id.)

27a

Transfer Order, ECF No. 1; Sch. CTO-1 to Conditional

Transfer Order (“CTO-1”), ECF No. 2.) On June 6, 2016,

the JPML centralized all proceedings regarding the disappearance of Flight MH370 in this Court (see Transfer

Order), and issued orders transferring the pending cases

to this Court for coordinated pretrial proceedings (see id.

at 3; CTO-1 at 1). After the MDL was created and the initial transfers took place, two additional cases were filed—

one in the District of South Carolina, and another in the

Western District of Washington—and those two cases

were also transferred to this Court. (See Conditional

Transfer Order, ECF No. 57, at 3.)

1. The Plaintiffs

For the purpose of the instant threshold motions,

Plaintiffs have self-divided into two groups, with one

group consisting of legal representatives/beneficiaries

who are represented by the law firms of Podhurst Orseck,

P.A., and Wisner Law Firm P.C. (collectively, the

“Podhurst Plaintiffs”), and the second group consisting of

similar individuals represented by Motley Rice LLC, and

Spagnoletti & Co. (collectively, the “Motley Rice Plaintiffs”). The Podhurst Plaintiffs can be further subdivided

into two groups, with the first consisting of the plaintiffs

in two cases brought against MAS and MAB under the

Montreal Convention,13 and the second consisting of the

plaintiffs in 32 cases that assert state law wrongful death

and products liability claims against Boeing.14 (See infra

See Wood v. Malaysia Airlines Berhad, 16cv0053; Gaspard v. Malaysia Airlines Berhad, 16cv0419.

Li v. The Boeing Co., 16cv1128; Xiao v. The Boeing Co., 16cv1129;

Gao v. The Boeing Co., 16cv1130; Feng v. The Boeing Co., 16cv1131;

Wang v. The Boeing Co., 16cv1132; Wang v. The Boeing Co., 16cv1134;

Pang v. The Boeing Co., 16cv1135; Liang v. The Boeing Co., 16cv1136;

Hu v. The Boeing Co., 16cv1137; Zhou v. The Boeing Co., 16cv1138;

Hu v. The Boeing Co., 16cv1139; Wang v. The Boeing Co., 16cv1140;

Zhang v. The Boeing Co., 16cv1143; Tian v. The Boeing Co., 16cv1144;

28a

Part II.A.3.) The Motley Rice Plaintiffs can similarly be

subdivided into groups on the basis of the claims they are

asserting. (See infra, Part II.A.3.) One group of Motley

Rice Plaintiffs has brought claims under the Montreal

Convention against MAS and MAB, and their complaints

additionally name reinsurers AGCS SE and Haagen as defendants15 A second group of Motley Rice Plaintiffs have

filed suits that assert state law wrongful death and products liability claims against Boeing.16 The final Motley Rice

Plaintiffs group consists of a single case that has scores of

named plaintiffs and asserts claims related to 44 of the

Flight MH370 decedents.17 This group asserts both Montreal Convention claims and wrongful death/products liability claims against all of the defendants.

The Podhurst Plaintiffs are citizens and residents of a

variety of countries—four are citizens of the United

States; one is a resident of the United States; and 24 are

citizens and residents of India, Australia, or China. (See

Podhurst FNC Opp’n. at 21–22; see also infra, Part

IV.A.2; IV.B.2.) The Podhurst Plaintiffs represent, or are

otherwise related to, 62 of the passengers of the fateful

Li v. The Boeing Co., 16cv1145; Shirath v. The Boeing Co., 16cv1146;

Jia v. The Boeing Co., 16cv1147; Gaspard v. The Boeing Co., 16cv1148;

Wood v. The Boeing Co., 16cv1149; Santhanam v. The Boeing Co.,

16cv1151; Huang v. The Boeing Co., 16cv1152; Kolekar v. The Boeing

Co., 16cv1153; Han v. The Boeing Co., 16cv1161; Zhang v. The Boeing

Co., 16cv1164; Chen v. The Boeing Co., 16cv1165; Kolekar v. The Boeing Co., 16cv1166; Gaspard v. The Boeing Co., 16cv1296; Gaspard v.

The Boeing Co., 16cv1299; Zhang v. The Boeing Co., 16cv1306; Yuan

v. The Boeing Co., 16cv1307; Weeks v. The Boeing Co., 16cv1167; Richards v. The Boeing Co., 17cv0503.

See Smith v. Malaysia Airlines Berhad, 16cv0429; Kanan v. Malaysia Airlines Sys. Berhad, 16cv1062; Huang v. Malaysia Airlines

Berhad. 16cv1063.

Kanan v. The Boeing Co., 16cv1159, Keith v. The Boeing Company,

17cv0518.

Zhang v. Malaysia Airlines Berhad, 16cv1048.

29a

Flight MH370, only one of whom was a citizen of the

United States. The rest of the decedents who are referenced in the Podhurst Plaintiffs’ complaints are citizens

and/or residents of India, Australia, Indonesia, Japan, and

China. (See Podhurst FNC Opp’n at 21-22.)

Two of the Motley Rice Plaintiffs are citizens of the

United States (see Compl., Keith v. The Boeing Co.,

17cv0518, ECF No. 1, ¶ 1; Compl., Smith v. Malaysia Airlines Berhad, 16cv0439, ECF No. 1, ¶ 39), and one appears

to be a citizen of Malaysia (see Notice of Removal, Kanan

v. The Boeing Co., 16cv1159, at 6), while the remainder appear to be citizens of China (see Compl., Zhang v. Malaysia Airlines Berhad, 16cv1048, ECF No. 1, ¶¶ 42, 44–84).

Of the decedents who are referenced in the Motley Rice

complaints, two are United States citizens who were residents of China, and one is a lawful permanent resident of

the United States who was living in China at the time of

Flight MH370’s disappearance. (See Pls.’ Resp. to Def.

MAS’s Montreal Conv. Mot. (“Motley Rice Montreal Convention Opp’n”), ECF No. 66, at 6.) One appears to be a

citizen of Malaysia, and the remainder appear to be citizens of China. (See Kanan Notice of Removal at 6; Zhang

Compl., ¶¶ 42, 44–84.)

2. The Defendants

The various complaints that comprise this MDL name

one or more of five defendants. Defendants MAS and

MAB are based in Malaysia, while Boeing’s commercial

aircraft operations are based on the west coast of the

United States, in Washington state. (See Part I.B., supra.)

Four of the pending complaints also name as a defendant

AGCS SE, alleging that it is an insurer of MAS; AGCS SE

contends that it is a “Societas Europaea”-organized corporation that exists under the laws of the European Union,

and that it maintains its principal place of business in

30a

Munich, Germany. (See AGCS SE Pers. Juris. Mot. at 9.)18

The final defendant—Haagen—is an executive of AGCS

SE; he is named as a defendant in two complaints. (Id.)

3. The Claims

As noted above, the complaints consolidated in this

MDL assert two different types of claims: Montreal Convention claims against MAS and MAB (and in some cases,

their insurers), and state law wrongful death and products

liability claims against Boeing.

a. The Montreal Convention

The Montreal Convention—formally titled the “Convention for the Unification of Certain Rules for International Carriage by Air” —is an international treaty to

which both the United States and Malaysia are parties.

See May 28, 1999, S. Treaty Doc. No. 10645, 1999 WL

33292734 (2000).19 The Montreal Convention “sets forth

uniform rules for claims that arise out of incidents that occur during international air transportation[,]” Marotte v.

Am. Airlines, Inc., 296 F.3d 1255, 1258–59 (11th Cir.

2002), and it “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward[,]” Art. 1.1, Montreal Conv. There is no dispute that

the disappearance of Flight MH370 involved international

carriage within the meaning of the Montreal Convention.

Article 17 of the Montreal Convention provides that an

air “carrier is liable for damage sustained in case of death

or bodily injury of a passenger upon condition only that

the accident which caused the death or injury took place

AGCS SE describes its relationship with MAS as “the reinsurer of

a retrocession of reinsurance issued by a Malaysian company to the

actual direct insurer of MAS”—in other words, a reinsurer of a reinsurer. (Id.)

The Montreal Convention, which became effective on November 4,

2003, succeeded the Warsaw Convention. See Bassam v. Am. Airlines, 287 Fed. Appx. 309, 312 (5th Cir. 2008) (per curiam).

31a

on board the aircraft or in the course of any of the operations of embarking or disembarking.” Art. 17, Montreal

Conv. “According to Article 21, a carrier is strictly liable

up to [113,000] Special Drawing Rights (SDR) . . . for damages sustained in case of death or bodily injury to passengers[.]” Delgado v. Delta Air Lines, Inc., No. 12-23272,

2013 WL 9838339, at *4 (S.D. Fla. Oct. 31, 2013) (internal

quotation marks and citation omitted).20 In addition, an air

carrier is liable for damages in excess of the initial 113,000

SDR if the plaintiff claims and establishes such damages,

unless the carrier can establish that the “accident is entirely attributable to events wholly outside the carrier’s

control.” Id.

The Montreal Convention specifies that a plaintiff generally can file a lawsuit seeking damages under the treaty

for passenger death or personal injury, as well as damage

to property, “before the court of the [1] domicile of the carrier or [2] of its principal place of business, or [3] where it

has a place of business through which the contract has

been made or [4] before the court at the place of destination.” Montreal Conv., Art. 33. Moreover, where the claim

involves the death or injury of a passenger, a legal action

may also be filed in the country where “at the time of the

accident the passenger has his or her principal and permanent residence and to or from which the carrier operates

services for the carriage of passengers by air, . . . and in

which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.” Id.

“An SDR is a unit of artificial currency which fluctuates based on

the global currency market.” Lee v. Air Canada, 228 F. Supp. 3d 302,

306 n.5 (S.D.N.Y. 2017). The Montreal Convention strict liability cap,

which was originally set at 100,000, is adjusted periodically, and was

113,000 at the time of the incident.

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b. Wrongful Death And Products Liability

Tort Claims Pertaining To Aviation Disasters

Wrongful death claims are a creature of state law, and

in the United States typically exist to provide “just compensation” to the survivors of a person wrongfully killed.

See Reiser v. United States, 786 F. Supp. 1334, 1335 (N.D.

Ill. 1992) (citing Ill. Rev. Stats. Ch. 70 ¶ 2); see also Aspinall v. McDonnell Douglas Corp., 625 F.2d 325, 327 (9th

Cir. 1980) (noting that “[u]nder California law the right of

a survivor to recover under the wrongful death theory is

purely statutory”); Rentz v. Spokane Cty., 438 F. Supp. 2d

1252, 1257 (E.D. Wash. 2006) (explaining that Washington

law permits a personal representative of a deceased individual to maintain a wrongful death suit for the benefit of

the heirs). The evidence in a wrongful death case in the

context of an aviation disaster, as in other wrongful death

cases, typically involves proof of the traditional elements

of a negligence claim: duty, breach, causation, and damages, including proof that the injury was a death. See Kasongo v. United States, 523 F. Supp. 2d 759, 792 (N.D. Ill.

2007).

Products liability claims, which are generally brought

under state common law, can proceed under either a strict

liability or a negligence theory, and require proof of the

causal relationship between a manufacturer’s product and

the injury a plaintiff has suffered. Thornton v. M7 Aerospace LP, 796 F.3d 757, 770 (7th Cir. 2015); see also Joy v.

Bell Helicopter Textron, Inc., 999 F.2d 549, 554 (D.C. Cir.

1993) (explaining that “[i]n order to recover, an injured

plaintiff must demonstrate not only that the product is defective, but also that the defect proximately caused plaintiff’s injury in that but for the defect, the injury would not

have occurred” (internal quotation marks and citation

omitted)). Thus, such cases typically involve evidence regarding the nature of the defect (manufacturing, design,

33a

or otherwise); the incident itself; and the damages suffered. See id. Plaintiffs here intend to rely upon a res ipsa

loquitur theory of causation, pursuant to which a jury can

infer that a manufacturer’s negligence caused the plaintiff’s injury based on the circumstances of the case, rather

than direct proof of a product defect. (See Mot. Hr’g Tr.

at 38:4–8.) See also Restatement (Third) of Torts: Phy. &

Emot. Harm § 17 (2010). With respect to aviation disasters, which might involve negligence by someone other

than the plane manufacturer, “res ipsa loquitur can be

found applicable only if the plaintiff has offered evidence

tending to negate the presence of causes other than the

defendant’s negligence.” Restatement (Third) of Torts:

Phy. & Emot. Harm § 17.

B. Defendants’ Threshold Motions

At the parties’ request, this Court ordered initial discovery limited to six topics—forum non conveniens; jurisdiction under the Foreign Sovereign Immunities Act; jurisdiction under the Montreal Convention; personal jurisdiction; plaintiffs’ capacity to bring suit; and whether

plaintiffs have stated a plausible claim against AGCS SE

and Haagen—and set a schedule for the briefing and filing

of dispositive motions related solely to those topics. (See

Scheduling Order, ECF No. 14, at 1–2.) Following the discovery period, Defendants filed the joint motion seeking

dismissal under the doctrine of forum non conveniens that

is the subject of this opinion. (See Joint Mot. to Dismiss

on the Ground of Forum Non Conveniens (“FNC Mot.”),

ECF No. 37.) Various defendants filed four other motions