Petition for Writ of Certiorari — Forsman v. Cessna Aircraft Co (No. 09-206)

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D No~ 09-206 AUG 1 4 2009

Mn Thor’ CE OF THE GLERK

Supreme Court of the United States

ANETTE FORSMAN, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATES OF ROBIN FORSMAN

AND CHRISTER FORSMAN, ET AL.,

Petitioners,

Vv.

CESSNA AIRCRAFT COMPANY,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL P. VERNA JOEL D. Eaton

BOWLES & VERNA Counsel of Record

2121 No. Ca.tirorniA BLvp. #875 PODHURST ORSECK, P.A.

WaLnut CrREEK, CA 94596 25 WEST FLAGLER STREET

(925) 935-3300 Surre 800

Miami, FL 33130

GERALD C. STERNS (305) 358-2800

STERNS & WALKER

901 CLay STREET Attorneys for Petitioners

OAKLAND, CA 94607

(510) 267-0500

August 14, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

On a foggy morning in Milan, Italy, a Cessna sales

demonstration flight disobeyed its taxi instructions,

became lost in the fog, and taxied onto an active

runway in front of a departing SAS airliner, killing

118 people and injuring four others. One of the

decedents was a U.S. citizen. Her seven survivors, all

U.S. citizens, filed a wrongful death action against

Cessna, a U.S. corporation, in a U.S. district court.

The survivors of 68 other decedents (and one personal

injury victim) -- citizens of seven different European

nations -- filed suit in the same court. Cessna moved

to dismiss all 70 cases for forum non conveniens.

Mindful of the heightened deference given to a U.S.

citizen’s choice of a U.S. forum in a suit against a U.S.

corporation, the district court denied Cessna’s motion

to dismiss the action of the U.S. citizens. However,

and notwithstanding that 39 citizens of Italy and

Denmark were the beneficiaries of bilateral

international treaties promising their citizens “no less

favorable” treatment than a U.S. citizen would receive

when bringing suit in a U.S. court, the district court

dismissed the cases of all 69 European plaintiffs. The

court of appeals affirmed. It concluded, in direct

conflict with a consistent line of decisions from the

Second Circuit, that the “no less favorable” language

in the treaties did not entitle the foreign plaintiffs to

the favorable deference to which the U.S. citizens were

entitled -- and that “the lesser deference given by the

district court to the European Plaintiffs’ choice of

forum was consistent with the treaty obligations of the

United States.” App. A, 14a-15a. The question

presented is therefore this:

li

Where a bilateral international treaty guarantees

a foreign national “no less favorable” access to U.S.

courts to redress injuries caused by a U.S. actor than

a U.S. citizen would enjoy, was it permissible for the

court of appeals to conclude that the foreign plaintiffs’

choice of forum in this case was entitled to less

favorable treatment than that afforded to the U.S.

citizens’ choice of forum?

ill

RULE 14.1(b) STATEMENT

A list of all parties to the proceeding in the court

below whose judgment is the subject of this petition is

as follows:

Plaintiffs-Appellants and Petitioners: Anette Forsman,

individually and as pers. rep. of the estates of Robin

Forsman and Christer Forsman; Catharina Lindgren,

individually and as pers. rep. of the estate of Tobias

Lindgren; Ruth Lund, Bjarne Lund, Torben Lund,

individually and as co-pers. reps. of estate of Vibeke

Vindahl Lund; Birgitte Andersen and Sven Andersen,

individually and as co-pers. reps. of the estate of Hans

Peter Andersen; Mathias Vindahl Lund Andersen;

Caroline Vindah] Lund Andersen; Cecilie Vindahl

Lund Andersen; Heidi J. Nielsen, individually and as

pers. rep. of the estate of Jens Nielsen; Hugo Edward

Nielsen; Dante Jens Nielsen; Sofie Holstein-Krag,

individually and as pers. rep. of the estate of Anders

Hyllander; Jenny Holstein-Krag; Fanny Holstein-

Krag; Heli Karjaluoto, individually and as pers. rep. of

the estates of Jan Karjaluoto and Alexander

Karjaluoto; Josefine Karjaluoto; Marie Stjernlof,

individually and as pers. rep. of the estate of Hakan

Andersson; Caroline Stjernlof; Ingemar Essebro and

Barbro Essebro, individually and as co-personal reps.

of the estate of Robert Essebro; Harri Vaara,

individually and as pers. rep. of the estate of Arja

Jasperi; Aune Mecklin, individually and as pers. rep.

of the estate of Anu Mecklin; Ari Makela, individually

and as pers. rep. of the estate of Anitta Mattsson;

Jonathan M. Kruger, individually and as pers. rep. of

the estate of Michael L. Kruger; Eva-Britta Naslund,

individually and as pers. rep. of the estate of Eric

Edward Kruger; Dumitru Gaucan, individually and as

iv

pers. rep. of the estate of Gabriela Gaucan; Kent

Eriksson, individually and as pers. rep. of the estate of

Gunilla Eriksson; Lena Blidborg, individually and as

pers. rep. of the estate of Par Eriksson; Kurt Stromme

and Liv Sisdel Stromme, individually and as co-pers.

reps of the estate of Jan Marc Stromme; Roy Johansen

and Liv Bentzen, individually and as co-pers. reps. of

the estate of Heidi Falch; Jan Andersson, individually

and as co-pers. rep. of the estate of Gunilla Fristedt;

Leif Schytt Larsen and Vivi Schytt Larsen,

individually and as co-pers. reps. of the estate of Steen

Schytt Larsen; Larissa Pukkonen, individually and as

pers. rep. of the estates of Bert-Arne Karlsson and

Daniel Karlsson; Camilla Karlsson; Maritta

Paakkinen, individually and as pers. rep. of the estate

of Tarmo Honkaranta; Tor Ivar Heggelund and Nanne

Heggelund, individually and as co-pers. reps. of the

estate of Espen Heggelund; Bernt Kristensen and

Kirsten Lis Olesen, individually and as co-pers. reps.

of the estate of Pia Kristensen; Bertil Johansson,

individually and as pers. rep. of the estate of Ola

Pettersson; Torbjorn Soderberg, individually and as

pers. rep. of the estate of Olaf Jakobsson; Nina

Hartman Gustafsson, individually and as pers. rep. of

the estate of Joakim Gustafsson; Emil Gustafsson,

Rasmus Gustafsson, Anna Gustafsson and Alberte

Gustafsson; Mette Felthaus and Mai Britt Myllerup

Laursen, individually and as co-pers. reps. of the

estate of Inger Marie Felthaus; Henryk Grynfeld and

Klara Sigvardsson, individually and as co-pers. reps.

of the estate of Helena Grynfeld; Charlotte Von Hueck,

individually and as pers. rep. of the estate of Janne

Penttinen; Claudia Bergna, individually and as pers.

rep. of the estate of Renato Cairo; Christiano Cario;

Rasmus Lindin and Helena Lindin, individually and as

co-pers. reps. of the estate of Kurt Ake Larsson; Bodil

Vv

Britha Iversen, individually and as pers. rep. of the

estate of Ulla Helga Iversen; Bodil Britha Iversen and

Katarine Kristensen, individually and as co-pers. reps.

of the estates of Thyge Lund Iversen and Asger Lund

Iversen; Jimmy Bruun Felthaus and Mette Felthaus,

individually and as co-pers. reps. of the estate of Arly

Felthaus; Vagn Mogensen and Keth Ulla Mogensen,

individually and as co-pers. reps. of the estate of Lars

Mogensen; Cyril Olsen and Birgit Schlichter Olsen,

individually and as co-pers. reps. of the estate of Anja

Schlichter Olsen; Katarine Kristensen, individually

and as pers. rep. of the estate of Poul Lund Kristensen;

Donatella Perrone, individually and as pers. rep. of the

estate of Marco Cantu; Alessia Cantu; Adam Ludvig

Friboe Garde and Marie Luise Garde, individually and

as co-pers. reps. of the estate of Mette Friboe Garde;

Bjarni Danielsen and Sofia Danielsen, individually

and as co-pers. reps. of the estate of Eiler S. Danielsen;

Luigi Fogliani and Piera Corno, individually and as co-

pers. reps. of the estate of Laura Fogliani; Ib Fleming

Olesen and Lise Olesen, individually and as co-pers.

reps. of the estate of Marianne Olesen; Anne Helen

Jeppesen, individually and as pers. rep. of the estate

of Mads Lassen; Lorena Venturo Frigerio, individually

and as pers. rep. of the estate of Franco Frigerio;

Valentina Frigerio; Giorgio Frigerio; Pasquale

Padovano, individually and Teresa Bruni, individually,

and as parents and natural guardians of Anna

Padovano; Silvia Pastore, individually and as pers.

rep. of the estate of Lorenzo Pettinaroli; Beatrice

Pettinaroli; Maria Rosa Colleoni, individually and as

pers. rep. of the estate of Osvaldo Renato Rosello;

Francesca Kosello; Ehsabetta Previati, individually

and as pers. rep. of the estate of Peppino Salati;

Caterina Salati; Chiara Salati; Ole Ricard Andersen

and Birgitte C. Christiansen, individually and as co-

vl

pers. reps. of the estate of Lise Lotte Andersen;

Vittorio Agosti and Mirta Faverzani, individually and

as co-pers. reps. of the estate of Simone Agosti; Chiara

Giussani, individually and as pers. rep. of the estate of

Michele Fontana; Martino Fontana; Leonardo

Fontana; Roberto Vanelli and Giuliana Tosi,

individually and as co-pers. reps. of the estate of

Viviana Vanelli; Lodovico Gioacchini and Carla

Azimonti, individually and as co-pers. reps. of the

estate of Riccardo Gioacchini; Knud Erik Lassen and

Annie Celia Lassen, individually and as co-pers. reps.

of the estate of Finn Lassen; Giuseppe Conte and

Franca Furlotti, individually and as co-pers. reps. of

the estate of Andrea Conte; Adele Scarani Pesapane,

individually and as pers. rep. of the estate of Maurizio

Pesapane; Filippo Pesapane; Lucia Pesapane; Serena

Pesapane; Silvana Massa, individually and as pers.

rep. of the estate of Giancarlo Savio; Mariangela Savio;

Erica Savio; Egidio Poli, individually and as pers. rep.

of the estate of Riccardo Poli; Angelo Prandi and

Fernanda Saccaggi, individually and as co-pers. reps.

of the estate of Massimo Prandi; Sara Avigo Predaroli,

individually and as pers. rep. of the estate of Filippo

Predaroli; Claudio Giumelli and Serena Pruno,

individually and as co-pers. reps. of the estate of

Valentina Giumelli; Giacomo Moscatello, individually

and as pers. rep. of the estate of Francesco Moscatello;

Stefano Bo., individually and as pers. rep. of the estate

of Natalie Kaye Micallef.

Plaintiffs-Cross-Appellees: Jack King,individually and

as pers. rep. of the estate of Jessica King, was not

adversely affected below and is not a petitioner here.

Defendant-Appellee-Cross-Appellant and Respondent:

Cessna Aircraft Company, a Kansas Corporation.

Vil

TABLE OF CONTENTS

QUESTION PRESENIED ..... ccc cece evewees i

RULE 14.1(b) STATEMENT .. ww. cece cee cees ill

p71 * 2k get ps yy. er eee Vii

TAbeiae Ce ARTERIES 6 tee ew renee aves 1X

PETITION FOR WRIT OF CERTIORARI ....... }

COP EPCHIEOEE CUUUEIE 6 i ee eh eee ela eee 1

Ce oe naa eens 6 ee ee eee ]

CONSTITUTIONAL AND TREATY PROVISIONS

SIN oss Cau ya aig oa lcd pple ok aa 2

STATE MEN) OF THE CASE .. «1.5. ccc vesecs 3

REASONS FOR GRANTING THE PETITION ... 7

CSE EIE sv 9 o-oo eee ea ese es 17

APPENDIX

Appendix A: Eleventh Circuit Opinion, March

De ss een re Cee ee ae la

Appendix B: District Court Order on Renewed

Motion to Dismiss for Forum Non Convenierns,

Rs ee. a er aur oie: 18a

Appendix —: Eleventh Circuit Opinion, October

WE cs i ee eee ee 22a

Vill

Appendix D: District Court Order on Forum

Non Conventens, October 21,2005 ........ 47a

Appendix E: District Court Order Denying

Motion to Dismiss, October 29,2004 ...... 6la

Appendix F: Eleventh Circuit Order Denying

Petition fer Rehearing and Petition for

Rehearing En Banc, May 22, 2009 ........ 76a

1X

TABLE OF AUTHORITIES

CASES

Alcoa S.S. Co., Inc. v. M/V Nordic Regent,

654 F.2d 147 (2d Cir. 1980) (en banc) ....... 10

Blanco v. Banco Industrial De Venezuela,

997 F.2d 974 (2d Cir. 1993) ............ 10, 11

Burt v. Isthmus Dev. Co.,

218 F.2d 36S (6th Civ. 1965) ... ccs ane ce 8

Chan v. Korean Air Lines, Ltd..,

S06 U.5. Fae Ci «ks eh vee ee ee 15

Farmanfarmaian v. Gulf Oil Corp.,

588 F.2d 880 (2nd Cir. 1978) ... 9, 10, 11, 12, 14

Founding Church of Scientology v. Verlag,

636 F’.24 428 (D.C. Civ. 1676) . occ esc ee 8

Grimandi v. Beech Aircraft Corp.,

§12 F. Supp. 764 (D. Kan. 1981) ........... 16

In Re Bridgestone/ Firestone, Inc., Tires Products

Liability Litigation,

190 F. Supp. 2d 1125 (S.D. Ind. 2002) ...... 16

In Re Ford Motor Co.,

a44 F.36 6465 Cith Cir. Ze). sc hs een eee 16

Irish National Ins. Co., Ltd. v. Aer Lingus

Teoranta,

139 ¥.2a 90 (26 Cir. 1064) . 0. 4 hae 10, 11

Jennings v. Boeing Co.,

660 F. Supp. 796 (E.D. Pa. 1987), affd, 838 F.2d

oS Se | ra 16

La Seguridad v. Transylter Line,

707 F.2d 1304 (11th Cir. 1983) ............. 8

Lehman v. Humphrey Cayman, Ltd.,

713 F.2d 339 (8th Cir. 1983) ............... 8

Murray v. British Broad. Corp.,

Oi Fe S08 (ae Cit. BOOS) «www cee cease 11

Oxley v. Wyeth Laboratories, Inc., No. 91-1285

1992 WL 116308 (E.D. Pa. 1992) .......... 16

Piper Aircraft Co. v. Reyno, Personal Representative

of the Estates of Fehilly et al.,

PO MUEED bck vc cee se vec eeeaess 7

Pollux Holding Ltd. v. The Chase Manhattan Bank,

329 F.3d 64 (2d Cir. 2003) .... 10,11, 12, 14, 15

SME Racks, Inc. v. Sistemas Mecanicos Para

Electronica, S.A.,

382 F.3d 1097 (11th Cir. 2004) ............. 8

Sumitomo Shoji America, Inc. v. Avagliano,

ee Bs | a ae 14

The Amiable Isabella,

6 Wheat. 1,5 L. Ed. 191 (1821) ............ 15

CONSTITUTION

ij. Cet. Ort. Vi, G1.2 2... 20 esses. i « oe

xi

STATUTES

Bae EE sin cca eae e eek aveeeen

OTHER AUTHORITIES

Article V.4 of the Treaty of Friendship, Commerce,

and Navigation between the United States and

Italy of July 26, 1949, 63 Stat. 2255, T.LAS.

No. 1965, 1949 WL 37628 .................

Articles V.1 and XXI1.1 of the Treaty of Friendship,

Commerce and Navigation between the United

States and the Kingdom of Denmark, July 30,

1961, 12 U.S.T. 908, T.1.A.S. No. 4797, 1961 WL

SN reese cee aoe Tae ee eee ae

1

PETITION FOR WRIT OF CERTIORARI

The petitioners respectfully pray that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit appears at Appendix A, la-

17a, and is reported at 562 F.3d 1374.

The opinion of the United States District Court for

the Southern District of Florida appears at Appendix

B, 18a-21la, and is unofficially reported at 2008 WL

276015.

The prior opinion of the United States Court of

Appeals for the Eleventh Circuit appears at Appendix

C, 22a-46a, and is reported at 505 F.3d 1160.

The prior opinion of the United States District

Court for the Southern District of Florida appears at

Appendix D, 47a-60a, and is reported at 405 F. Supp.

2d 1374.

The initial opinion of the United States District

Court for the Southern District of Florida appears at

Appendix E, 61la-75a, and is unpublished.

JURISDICTION

The Court of Appeals judgment was entered on

March 27, 2009. A timely petition for rehearing and

rehearing en banc was denied by an order filed May

22, 2009, which appears at Appendix F, 762-/7a. The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND TREATY

PROVISIONS INVOLVED

The Supremacy Clause of the Constitution provides

in relevant part: “|All Treaties made, or which shall

be made, under the Authority of the United States

shall be the Supreme Law of the Land.” U.S. CONST

art. VI, cl.2.

Article V.4 of the Treaty of Friendship, Commerce,

and Navigation between the United States and Italy of

July 26, 1949, provides:

The nationals . of either High Contracting

Party shall enjoy freedom of access to the courts

of justice ...in the territories of the other High

Contracting Party, in all degrees of jurisdiction

established by law, both in pursuit and in

defense of their rights; shall be at liberty to

choose and employ lawyers and representatives

in the prosecution and defense of their rights

before such courts ...; and shall be permitted

to exercise all these rights and privileges, in

conformity with the applicable laws and

regulations, upon terms no less favorable than

the terms which are or may hereafter be

accorded to the nationals ... of the other High

Contracting Party and no less favorable than

are or may hereafter be accorded to the

nationals of any third country.

63 Stat. 2255, T.1LAS. No. 1965, 1949 WL 37628

(emphasis supplied).

Articles V.1 and XXII.1 of the Treaty of Friendship,

Commerce and Navigation between the United States

and the Kingdom of Denmark, July 30, 1961, provide:

Nationals... of either Party shall be accorded

national treatment and most-favored nation

treatment with respect to access to courts of

justice ... within the territories of the other

Party, in all degrees of jurisdiction, both in

pursuit and in defense of their rights. . . .

The term “national treatment” means treatment

accorded within the territories of a Party upon

terms no less favorable than the treatment

accorded therein, in like situations, to nationals

of such Party

12 US.T. 908, T.LAS. No. 4797, 1961 WL 62672

(emphasis supplied).

STATEMENT OF THE CASE

On a foggy morning in Milan, Italy, nearly eight

years ago, a Cessna sales demonstration flight

disobeyed its taxi instructions, became lost in the fog,

and taxied onto an active runway in front of a

departing SAS airliner, killing 118 people and injuring

four others on the ground. One of the decedents was

a U.S. citizen, domiciled in Californta. In March, 2003,

her seven survivors, all U.S. citizens, filed a wrongful

death action against Cessna, a U.S. corporation, in the

United States District Court for the Southern District

of Florida. The survivors of 68 other decedents (and

one personal injury victim) -- citizens of seven different

4

European nations -- filed suit in the same court.’

Cessna moved to dismiss all 70 cases for forum non

conventens.

On October 29, 2004, quoting from _ binding

precedent in the Eleventh Circuit, the district court

observed that the defendant must present “positive

evidence of unusually extreme circumstances’ and

‘thoroughly convince |this Court] that material

injustice is manifest before ousting a domestic plaintiff

from this Country’s courts’.”; it concluded that “the

Defendant has failed to show that a material injustice

would be manifest if the case were tried in the United

States”; and it denied the motion to dismiss. App. E,

61la-63a. In the process, it rejected the contention of

the 39 plaintiffs from Italy and Denmark that they

were entitled to the same level of deference given to

the U.S. claimants because of the “no less favorable”

treatment treaties quoted in relevant part at pages 2-

3, supra. App. E, 65a-67a. Although it acknowledged

the existence of a long line of Second Circuit decisions

supporting the plaintiffs’ contention, it declined to

follow them.

It criticized the decisions for not “directly

analyzling| why a treaty should affect the level of

deference to be applied during the forum non

conveniens doctrine analysis.” App. E, 65a. _ It

characterized the square holdings in the decisions as

mere dicta, which it was “not bound to follow.” App. E,

66a. It characterized the decisions as “unworkable,”

' The European plainuffs represent 2} Swedtsh citizens, 20 Italian citizens,

19 Danish citizens, 4 Finnish citizens, 3 Norwegian citizens, | Romanian

ciuuzen, and one British citizen

5

because “courts would be routinely forced to interpret

the language of many different treaties.” App. E, 66a.

It observed that “the court’s inherent power to protect

the integrity of its process through forum non

conveniens was analogous to its “inherent power to

punish contempt” -- and that “faJllowing a treaty,

including its legislative history, to have such an

arbitrary impact on the courts inherent powers is

another reason not to adopt counsel’s position.” App.

EK, 66a-67a. And finally, it chose to align itself with

three district court decisions that had declined to

afford foreign plaintiffs the same deference as a U.S.

citizen would receive, without recognizing that the

treaties relied upon in those cases provided only

“access to courts,” rather than “no less favorable”

treatment than a U.S. citizen would receive. App. E,

67a.’

Although Cessna had originally conceded that “the

[tatian ‘legal issues [were] fairly simple,” it changed

its position dramatically after its motion to dismiss

was denied. During a two-day hearing to determine

Italian law shortly before the scheduled trial date,

Cessna’s expert now disagreed with the plaintiffs’

expert on nine different issues of Italian law. App. D,

56a. Because “[li]lssues of Italian law which were

deemed simple in the past, have now become

complicated” and because of “the apparent direct

conflict in the experts’ testimony,” the district court

sua sponte asked the parties “to rebrief the

Ihe representatives of the four Fins, the three Norwegians, and the

Romanian who died in the accident are protected by “freedom of access”

and “access” treaties. App. A, 13a, n2. The plaintiffs did not contend in the

coun of appeals that these treaties entitled these citizens to “no less

favorable” treatment than U S. citizens would enjoy

6

Reconsideration of the Motion to Dismiss based on

forum non conveniens.” App. D, 48a-49a, 58a. And on

October 21, 2005, more than a year after initially

denying Cessna’s motion to dismiss, and after invoking

Emerson’s “a foolish consistency is the hobgoblin of

small minds,” it dismissed the cases of the 69

European plaintiffs. App. D, 58a. It did not dismiss

the case of the U.S. citizens, however; rather, it stayed

their case “pending resolution of this case in the

Italian courts.” App. D, 58a.

All 70 plaintiffs appealed to the United States

Court of Appeals for the Eleventh Circuit. Two years

later, on October 24, 2007, the court of appeals

concluded that the district court had abused its

discretion in staying the U.S. citizens’ case for an

indefinite and protracted period of time, and it vacated

the stay order. App. C, 44a. It declined to review the

dismissal of the European plaintiffs’ cases, however,

and simply remanded to the district court “to decide in

the first instance how to proceed from here.” App. C,

46a. On remand, the district court again dismissed

the European plaintiffs’ cases, but allowed the U.S.

citizens’ case “to proceed before this Court.” App. B,

21a. The European plaintiffs’ appealed the dismissal

order; Cessna cross-appealed the denial of its motion

to dismiss the U.S. citizens’ case. App. A, 4a.

On March 27, 2009, the court of appeals concluded

that it lacked jurisdiction to entertain Cessna’s cross-

appeal, and the cross-appeal was dismissed. App. A,

4a-9a. It affirmed the dismissal of all the European

plaintiffs’ cases. App. A, 17a. It acknowledged one of

the several Second Circuit decisions holding that “a

foreigner’s right to sue in the United States is not of a

lesser magnitude than an American’s right when a

f

treaty exists between the two countries giving a

foreigner ‘no less favorable’ access to the other

country’s courts.” App. A, 13a. But it purported to

find a different rule in a subsequent Second Circuit

decision, and it held (without endorsing a single one of

the reasons given by the district court) that “the lesser

deference given by the district court to the European

plaintiffs’ choice of forum was consistent with the

treaty obligations of the United States.” App. A, 14a-

15a. The European plaintiffs’ timely petitions for

rehearing and rehearing en banc were denied on May

22, 2009.

Nearly eight years have elapsed since the European

plaintiffs lost their loved ones as a result of Cessna’s

negligence. In the argument that follows, we intend to

demonstrate that the court of appeals misread and

misapplied the subsequent Second Circuit decision

upon which it relied; that its decision is in direct

conflict with a long and consistent line of Second

Circuit decisions to the contrary; and that the conflict

is in need of and worthy of resolution by this Court.

REASONS FOR GRANTING THE PETITION

In the Eleventh Circuit -- and in other courts of

appeals -- a defendant must shoulder an extremely

heavy burden to oust a U.S. plaintiff from a U.S. court:

While the Supreme Court has been clear that.

“dismissal should not be automatically barred

when a [domestic] plaintiff has filed suit in his

home forum,” Piper Aircraft Co., 454 U.S. at 255

n. 23, 102 S. Ct. 252 (emphasis added), in this

Circuit we have long mandated that district

courts “require positive evidence of unusually

8

extreme circumstances, and _ should be

thoroughly convinced that material injustice is

manifest before exercising any such discretion

as may exist to deny a United States citizen

access to the courts of this country.” La

Seguridad, 707 F.2d at 1308 n. 7 (quoting Burt

v. Isthmus Dev. Co., 218 F.2d 353, 357 (5th Cir.

1955)); see also Lehman v. Humphrey Cayman,

Ltd., 713 F.2d 339, 342 (8th Cir. 1983)

(requiring same standard); Founding Church of

Scientology v. Verlag, 536 F.2d 429, 435 (D.C.

Circuit 1976) (same).

SME Racks, Inc. v. Sistemas Mecanicos Para

Electronica, S.A., 382 F.3d 1097, 1101-02 (11th Cir.

2004) (footnotes omitted).

Mindful of the heightened deference required by

this mandate, the district court permitted the U.S.

citizens to proceed with their case against Cessna in

the U.S. But notwithstanding that the representatives

of at least 39 of the 69 foreign nationals who died or

were injured in the same aviation accident were

entitled to “no less favorable” treatment by treaties

with their nations, the district court afforded them far

less deference and dismissed their cases. Because the

U.S. citizens’ case was permitted to proceed and all the

Furopean plaintiffs were tossed out of court, it is

undeniable that the European plaintiffs received far

less favorable treatment than the U.S. citizens -- in

direct contravention of the plain language of these

international treaties, effectively rendering the

treaties of their various nations meaningless.

This result could not have been reached in the

Second Circuit:

9

We feel constrained to comment... on

statements in the judge’s opinion to the effect

that a foreign plaintiffs “right to sue in the

United States is clearly of a less magnitude

than that of an American citizen.” 3

Whatever the merits of that proposition

generally, which does find some support in

cases suggesting that our courts should be quite

cautious in dismissing on forum nonconveniens

grounds when suit is brought by an American

citizen... , we think it has no application

where, as here, a treaty between the United

States and the foreign plaintiffs country allows

nationals of both countries access to each

country’s courts on terms no less favorable than

those applicable to nationals of the court’s

country. ...

Farmanfarmaian v. Gulf Ou Corp., 588 F.2d 880, 882

(2nd Cir. 1978) (emphasis supplied).

Farmanfarmaian remains the law in the Second

Circuit:

We have ruled ... that when a treaty with a

foreign nation accords its nationals access to our

courts equivalent to that provided American

citizens, identical forum non _ conveniens

standards must be applied to such nationals by

American Courts. [Citations omitted]. Because

such a treaty exists between the United States

and Venezuela... ,no discount may be imposed

upon the plaintiffs initial choice of a New York

forum in this case solely because {the plaintiff)

is a foreign corporation.

LO

Blanco v. Banco Industrial De Venezuela. 997 F.2d

974. 981 (2d Cir. 1993)

Similarly

Because of the existence of the two

international compacts, the district court

should have applied the same forum non

conveniens standards that it would have

applied to a United States’ citizen

lcitations omitted]. It specifically failed

to doso, and this failure tainted its entire

holding

Irish National Ins. Co., Ltd. v. Aer Lingus Teoranta,

739 F.2d 90, 91-92 (2d Cir. 1984)

Finally, in Alcoa S.S. Co., Inc. v. M/V Nordic

Regent, 654 F.2d 147, 152-53 (2d Cir. 1980) (en banc),

the Second Circuit, sitting en banc, acknowledged and

reaftirmed its decision in Farmanfarmaian, stressed

that “no less favorable” treaty obligations are

“paramount under the Constitution”; stated that they

require “a uniform standard for determining forum

non conveniens;” and stated that, to read them

otherwise would “do violence to our treaty obligations.’

secause this was anen banc decision, no subsequent

panel could possibly have reached a_ different

conclusion

Nevertheless, the court of appeals in the instant

case purported to find that different conclusion in a

more recent Second Circuit decision, Pollux Holding

Ltd. v. The Chase Manhattan Bank, 329 F.3d 64 (2d

Cir. 2003). We respectfully submit that the decision

was misread and misapplied. At issue in Pollua

Holding was a treaty between the U.S. and Liberia

which merely promised “freedom of access” to the

courts of the respective countries -- not “no less

favorable” treatment -- and the Second Circuit was

careful to distinguish between the two types of

treaties

With respect to the United States treaty with

Liberia, the treaty merely grants the citizens of

each country “freedom of access” to the courts of

the other country (Citation omitted] The

treaty stops well short of granting the nationals

of both countries “access to each country’s

courts on terms no less favorable than those

applicable to nationals of the court’s country

See Farmanfarmaian v. Gulf Oil Corp., 588

F.2d 880, 882 (2d Cir. 1978). As we have noted

before, “|hlistory and practice . teach that a

principle of equal access must be explicitly

adopted.” Murray v. British Broad. Corp., 81

3d 287, 291 (2d Cir. 1996)

Further, in prior forum non conveniens cases

where we have required that a foreign plaintifl

be treated on terms no less favorable than those

applicable to U.S. nationals, the foreign plaintiff

was a beneficiary of a treaty with an explicit

provision providing national access. or

treatment See Blanco v. Banco Indus. De

Venezuela, S.A., 997 F.2d 974, 981 (2d Cir

1993) (acknowledging a treaty with Venezuela

that “accords its nationals access to our courts

equivalent to that provided American citizens’)

lcitation omitted]; Jrish Nat'l Ins. Co., Ltd. 1

Air Lingus Teoranta, 739 F.2d 90, 91-92 (2d Cir

1984) (“Under the terms of a separate treaty

12

between the United States and Ireland,

appellant was entitled to ‘national treatment

with respect to... having access to the courts of

justice”) [citation omitted]; Farmanfarmaian,

588 F.2d at 882 [citation omitted}.

Because “freedom of access” cannot be taken to

mean “national access,” the Liberian treaty does

not afford the plaintiffs’ choice of a United

States forum the same deference as that

afforded the choice of a U.S. citizen. Instead

Pollux and Springwell’s choice of forum only

merits the lesser degree of deference typically

afforded foreign plaintiffs. .

329 F.3d at 72-73. Without more, there is simply no

way in which the court of appeals in the instant case

could legitimately have concluded that, in the face of

the plain language of a “no less favorable” treatment

treaty, Pollux Holding permits a court to afford “less

favorable” treatment to a foreign national’s choice of

forum than a U.S. citizen would enjoy

Nevertheless, the court of appeals purported to find

a justification for the “less favorable” treatment it

authorized in the instant case in selective bits and

pieces of a dictum in Pollux Holding that followed the

passage quoted above, which we will quote with some

added emphasis so there can be no question that it did

not purport to overrule Farmanfarmaian, its progeny,

or the en banc decision that later ratified it

Even assuming that, by treaty, [the Liberian]

plaintiffs were entitled to access to American

courts on the same terms as American citizens

, our case law does not support plaintiffs’

issertion that such a treaty would require that

their choice of forum be afforded the same

deterence afforded toa U.S. citizen bringing suit

in his or her home forum. Such a proposition

impermissibly conflate citizenship and

CONnVenIENCe

A court considering a motion for dismissal «

the grounds of forum non conveniens does no

assign “talismanic. significance to the

citizenship or residence of the parties ind

there is no inflexible rule that protects |

citizen or resident plaintiffs from having then

CAUSC dism} ed ior forum ror corverite?

A|ppellants cannot successfully lay claim to th

deference owed an American citizen or resident

uling in her home forum. Plaintiffs are only

entitled, at best, to the lesser deference afforded

‘

1 U.S. citizen living ibroad who sué inal

}

Oru’

App. A, 14a (empha supplied)

The court of appeals in the instant case went on to

state, “Thi analysis makes clear that although

citizens hip ofte n acts as a proxy for convenience in the

forum non conveniens analysis, the appropriate inquiry

is indeed convenience. App. A, 14a. As the words

emphasized above demonstrate, the “analysis” in thi

dictum was addressed to treaties providing mere

“access -- not to “no less favorable” treatment treatie

And the most that the dictum says is this: because

even an action filed in a U.S. court by a U.S. citizen

can be dismissed for forum non conveniens in

ippropriate circumstances, an acce treaty provide

14

no greater insulation from dismissal of a foreig:

plaintiff in the appropriate circumstances

Most re pectfully, Pollux llolding does not even

irguably purport to overrule armanfarmaian, its

progeny, or the en banc decision that later ratified it

[t does not hold that “the appropriate inquiry is indeed

convenience’ when a “no less favorable” treatment

treaty establishes the appropriate level of de ference to

be afforded a foreign national’s choice of forum. And

it most certainly cannot justify the result reached in

the instant case where, in the face of two treatie

quarely guaranteeing 39 plaintiffs “no less favorable

treatment than the U.S. citizens would enjoy, the U.S

citizens choice of forum was given heightened

deference and they were permitted to proceed, and the

Kuropean plaintiffs choice of forum was given so littl

deference that the y were to ed out of court

Interpretation of Friendship, Commerc: ind

Navigation Treaties like these “must, of course, begin

with the language of the Treaty itself The cleat

import of treaty language controls unle: ipplication

of the words of the treaty according to their obviou

meaning effects a result inconsistent with the intent or

expectations of its signatories.” Sumitomo Shoji

America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982

Most respectfully, the words “no less favorable” simply

annot mean “less favorable.”

And when, as here, the language of a treaty is plain

ind unambiguous, it must be enforced as written

because it is, according to Art. VI | 2, of the

Constitution, “the Supreme Law of the Land

Wihere the text ts clear, as i1lL1S here, we have

no power to insert an amendment. As Justi

Story wrote for the Court more than a cen

ind a half ave

('T'jo alter, amend, or add to any treaty

by inserting any clause, whether small o1

great, important or trivial, would be o1

ur part an usurpation of power, and not

an exercise of judicial functions. It would

be to make, and not to construe a treaty

Neither can this Court supply a casu

omissus in a treaty, any more than 1n a

law. We are to find out the intention ot

the parties by just rules of interpretatio:

applied to the subject matter, and having

found that, our duty 1s to follow it as far

iS it goe: and to stop where that top

whatever may be the Impertection !

difficulties which it leaves behind [he

Amiuable lsabs lia. 6 W he “ wae Oy op » | hed

191] (1821)

We re pectfully ibmit that the Second Cuircu

ecisions enforcing the “clear import’ of the plain

language of these “no less tavorable” treatment

:

treaties are correct The court of appeals attempt ls

listinguish those decisions was based on a failure to

recognize the difference between “no less tavorabl

treatment treaties and “freedom of access’ treatie

and upon a misreading of Pollux Holding. The conflict

that now exists between the Eleventh Circuit and the

Second Circuit 1 undeniable And no good reason

16

suggests itself why the conflict should be allowed to

percolate among the lower courts, because there is no

ambiguity in the words “no less favorable” that

deserves to be explored by multiple judges to

illuminate their plain meaning.

In addition, district courts confronting the question

in the future will find no clear guidance in the

decisional law and the conflict will likely widen if not

resolved by this Court. Prior to the Eleventh Circuit’s

decision, several district courts in other Circuits

followed the Second Circuit’s decisions. See, e. g.,

Grimandi v. Beech Aircraft Corp., 512 F. Supp. 764,

777-78 (D. Kan. 1981); Jennings v. Boeing Co., 660 F.

Supp. 796, 800 (E.D. Pa. 1987), affd, 838 F.2d 1206

(3rd Cir. 1988) (table); Oxley v. Wyeth Laboratories,

Inc., No. 91-1285, 1992 WL 116308 (E.D. Pa. 1992); In

Re _ Bridge-stone/Ftrestone, Inc., Tires Products

Liability Litigation, 190 F. Supp. 2d 1125, 1136-37

(S.D. Ind. 2002). In denying mandamus review of the

district court’s decision in Bridgestone/ Firestone, the

Seventh Circuit observed that, “[i]n the absence of

contrary authority from this court (and there is none),”

the district court’s election to follow the Second

Circuit’s decisions on the point “was a reasoned and

responsible analysis.” [x Re Ford Motor Co., 344 F.3d

648, 653 (7th Cir. 2002). It is now clear what the law

is in the Second and Eleventh Circuits, but it is

unsettled everywhere else, and the remainder of the

district courts of this nation deserve better guidance

on the question than the conflicting appellate decisions

frorn which they must choc.e at present. The

petitioners therefore respectfully urge the Court to

resolve the conflict.

17

CONCLUSION

The petition for writ of certiorari should be grante1.

Respectfully submitted,

JOEL D. EATON, ESQ.

Counsel of Record

PODHURST ORSECK, P.A.

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

MICHAEL P. VERNA, ESQ.

BOWLES & VERNA

2121 No. California Blvd. #875

Walnut Creek, California 94596

(925) 935-3300

GERALD C. STERNS., ESQ.

STERNS & WALKER

901 Clay Street

Oakland, California 94607

(510) 267-0500

Attorneys for Petitioners

APPENDIX

la

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-11033

D.C. Docket No. 03-20482-CV-FAM

[Filed March 27, 2009]

JACK KING, as personal representative of

the Estate of Jessica King, deceased,

Plaintiff

Cross-Appellee,

BARBARA BREGA,

ANETTE FORSMAN, individually and/or

as personal representative and/or as the

Person legally authorized under applicable

law to bring this wrongful death case for

herself, all potential beneficiaries and/or

The Estate of Robin Forsman, deceased, e¢ al.,

Plaintiffs-Appellants,

versus

CESSNA AIRCRAFT CO.,

a Kansas corporation,

Defendant-Appellee

Cross-Appellant.

ee ee ee ee ee ee ee ee ee ee a a, _ ee 4

2a

Appeals from the United States District Court

for the Southern District of Florida

(March 27, 2009)

Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:

Sixty-nine European plaintiffs appeal the district

court’s order dismissing their case against Cessna

Aircraft Company on the basis of forum non

conveniens. We find no abuse of discretion and

therefore affirm.

I. BACKGROUND

This case arises out of a tragic plane crash that

occurred at Linate Airport in Milan, Italy, on October

8, 2001. On that foggy morning, a private Cessna jet »

operated by Air Evex, a German charter company,

made a wrong turn and taxied toward an active

runway, causing it to collide with Scandinavian

Airlines Flight 686, which was just taking flight. One

hundred eighteen people died, including everyone on

board both planes and four people on the ground, and

others on the ground were injured.

In March 2003, a complaint was filed against

Cessna Aircraft Company (Cessna) in the Southern

District of Florida by the King family, acting as

personal representatives of the estate of Jessica King

(King Plaintiffs). Thereafter, 69 European plaintiffs

(European Plaintiffs) brought suits against Cessna,

3a

which were consolidated with the King Plaintiffs’ case

for administrative purposes. On October 21, 2005, the

district court granted in part Cessna’s motion to

dismiss the case as to the European Plaintiffs on

forum non conveniens grounds, denied in part the

motion with regard to the King Plaintiffs, and stayed

the King Plaintiffs’ case pending resolution of Italian

disputes relating to the European Plaintiffs. King ex

rel. Estate of King v. Cessna Aircraft Co., 405 F. Supp.

2d 1374, 1381 (S.D. Fla. 2005). After both groups of

plaintiffs appealed, we vacated the district court’s stay

and dismissal orders and remanded the case. King v.

Cessna Aircraft Co., 505 F.3d 1160, 1173 (11th Cir.

2007). Without expressing any view on the correctness

of the district court’s forum non conveniens analysis,

we instructed the district court to consider whether,

knowing “it could not avoid dual proceedings by

staying the King case, it might nave dism:..2d all of

the plaintiffs, including King, or allowed all of the

plaintiffs to proceed here, or perhaps pursued some

other avenue.” /d.

On remand, Cessna renewed its motion to dismiss

both the King Plaintiffs’ and European Plaintiffs’

complaints on the basis of forum non conveniens. The

district court “elect{ed] to ‘pursue some other avenue”

and, for the reasons it previously gave, granted in part

the motion to dismiss with regard to the European

Plaintiffs and denied it in part with regard to the King

Plaintiffs. King v. Cessna Aircraft Co., No. 03-20482,

2008 WL 276015, at *2 (S.D. Fla. Jan. 31, 2008). On

February 11, 2008, Cessna filed a motion to amend the

judgment, asking the district court to “certify its

decision to dismiss the [European Plaintiffs} as a final

judgment” pursuant to Fed. R. Civ. P. 54(b) and

“include a certificate for interlocutory review pursuant

4a

to 28 U.S.C. § 1292(b)” of the portion of the order

denying the motion to dismiss the King Plaintiffs. The °

district court issued a final judgment pursuant to

Rules 54 and 58, but denied Cessna’s motion for

certification under § 1292(b). The European Plaintiffs

appealed their dismissal, and Cessna filed a

cross-appeal of the order “to the extent said order...

denied Cessna’s motion to dismiss the claims of

plaintiff Jack King.”

Il. JURISDICTION

Dismissal of a suit on the basis of forum non

corveniens is a final, appealable order. Sigalas v. Lido

Mar., Inc., 776 F.2d 1512, 1516 (11th Cir. 1985). The

district court did not consolidate the European

Plaintiffs’ case with the King Plaintiffs’ case for all

purposes, so the European Plaintiffs can appeal the

dismissal of their case without waiting for a final

determination of the King Plaintiffs’ case. See Lewis

Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046,

1048-49 (11th Cir. 1989). The district court’s order is

final as to the European Plaintiffs, so we have

jurisdiction to review their appeal.

We do not, however, have jurisdiction to review

Cessna’s cross-appeal. Unlike the main appeal, the

denial of a motion to dismiss on the basis of forum non

conveniens is not a final order. See Van Cauwenberghe

v. Biard, 486 U.S. 517, 529, 108 S. Ct. 1945, 1953

(1988). Furthermore, we cannot infer the district court

intended to certify for immediate review the denial of

the motion to dismiss the King Plaintiffs. The motion

for entry of a Rule 54(b) certification filed by Cessna

asked for a Rule 54(b) certification only with regard to

the dismissal of the European Plaintiffs, and the

5a

district court denied Cessna’s request for certification

of that denial under 28 U.S.C. § 1292(b). Cessna

argues this Court has pendent appellate jurisdiction to

review its cross-appeal. We disagree.

Pendent appellate jurisdiction is present when a

nonappealable decision is “inextricably intertwined”

with the appealable decision or when “review of the

former decision [is] necessary to ensure meaningful

review of the latter.” Swint v. Chambers County

Comm'n, 514 U.S. 35, 51, 115 S. Ct. 1203, 1212 (1995);

see also Summit Med. Assocs., P.C. v. Pryor, 180 F.3d

1326, 1335 (11th Cir. 1999). Under these guidelines,

such jurisdiction can be present even when the

pendent appeal involves a party not in the main

appeal.’ Still, the Supreme Court has signaled that

‘The King Plaintiffs argued Swint absolutely bars “pendent party

jurisdiction”—.e., pendent jurisdiction over a party not involved

inthe main appeal. However, the appropriate inquiry under Swint

is not whether the pendent appeal involves a different party than

isin the main appeal but whether the issues of the nonappealable

decision are “inextricably intertwined” with the appealable

decision or when “review of the former decision [is) necessary to

ensure meaningful review of the latter.” See Swint,514 U.S. at 51,

115 S. Ct. at 1212. Indeed, the Supreme Court, our Circuit, and

nearly every other court of appeals has exercised pendent

appellate jurisdiction over closely related issues even when the

pendent appeal involved parties not involved in the main appeal.

See Clinton v. Jones, 520 U.S. 681, 707 n.41, 117 S. Ct. 1636, 1651

n.41 (1997) (affirming jurisdiction to review Paula Jones’

cross-appeal as pendent to President Clinton’s immunity appeal

even though Jones’ appeal involved a party who was not involved

in the immunity appeal); Sierra Club v. Van Antwerp, 526 F.3d

1353, 1358-59 (11th Cir. 2008) (exercising jurisdiction to review a

grant of summary judgment pertaining to al] defendants because

it “provided the basis for the injunction” entered against and

appealed by a few of the defendants); see also Global NAPs, inc.

6a

pendent appellate jurisdiction should be present only

under rare circumstances. See Johnson v. Jones, 515

U.S. 304, 318, 115 S. Ct. 2151, 2159 (1995) (indicating

pendent appellate jurisdiction is only appropriate

“sometimes”); Swint, 514 U.S. at 49-50, 115 S. Ct. at

1211 (expressing concern that “a rule loosely allowing

pendent appellate jurisdiction would encourage parties

to parlay .. . collateral orders into multi-issue

interlocutory appeal tickets”). As noted in Swint, a

more expansive exercise of such jurisdiction would

undermine the statutory scheme governing

interlocutory appeals. Swint,514 U.S. at 45-50, 1155S.

uv. Mass. Dep’t of Telecomms. & Energy, 427 ¥.3d 34, 43 (ist Cir.

2005); Morley v. Ciba-Geigy Corp., 66 F.3d 21, 22 n.1 (2d Cir.

1995); In re Tutu Wells Contamination Litig., 120 F.3d 368, 382

(3d Cir. 1997); Mattox v. City of Forest Park, 183 F.3d 515, 523-24

(6th Cir. 1999); Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d

486, 491 (7th Cir. 2001); Eagle v. Morgan, 88 F.3d 620, 628 (8th

Cir. 1996); Huskey v. City of San Jose, 204 F.3d 893, 904 (9th Cir.

2000); Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.

1995); NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C. Cir.

1996).

In cases with the same factual scenario as Swint—an official

immunity appeal in which there was an appeal by another party

who could not assert official immunity—we have declared there

was no “pendent party jurisdiction.” See, e.g., Hudson v. Hall, 231

F.3d 1289, 1292 n.1 (11th Cir. 2000); Harris v. Bd. of Educ. of

Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) (per curiam); Pickens

v. Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995). Although we

interpreted Swint to bar pendent party jurisdiction under those

circumstances, the Supreme Court left open the possibility for

such jurisdiction in other, albeit narrow, contexts. See Swint, 514

U.S. at 5051, 115 S. Ct. at 1212 (declining to “definitively or

preemptively settle ... whether or when it may be proper .. . to

review, conjunctively, related rulings that are not themselves

independently appealable”); Charles Alan Wright & Arthur R.

Miller, 16 Federal Practice & Procedure § 3937 (2008).

Va

Ct. at 1209-11; see also 28 U.S.C. § 1292(b), (e); Gilda

Marx, Ine. v. Wildwood Exercise, Inc. , 85 F.3d 675, 679

(D.C. Cir. 1996) (noting the many factors that weigh

against exercising pendent appellate jurisdiction). Our

Circuit has found pendent appellate jurisdiction in

only limited factual scenarios.

In Fox v. Tyson Foods, Inc., we found there was

pendent jurisdiction to review those portions of an

otherwise nonappealable collective action order the

district court relied on when denying the motion to

intervene that was appealed. 519 F.3d 1298, 1302

(11th Cir. 2008); see also Chudasama v. Mazda Motor

Corp., 123 F.3d 1353, 1365 (11th Cir. 1997) (exercising

pendent jurisdiction to review an _ otherwise

nonappealable compel order because the appealed

sanctions order was issued in part for the defendant’s

purported violation of the compel order). We expressly

determined there was no jurisdiction, however, to

review findings in the collective action order upon

which the district court did not rely. Fox, 519 F.3d at

1302. In United States v. Lopez-Lukis, we exercised

pendent appellate jurisdiction over an otherwise

nonappealable order striking a paragraph of the

indictment because the strike was “closely related to

[the district court’s] exclusion of the Government’s

evidence” that was on review. 102 F.3d 1164, 1167n.10

(lith Cir. 1997). We reasoned that “review of the

evidentiary ruling necessarily implicateld] review of

the order striking [the paragraph) from the

indictment” because “[{b]oth orders resulted from the

same determination|.}” Jd.

Importantly, we have found such jurisdiction did

not exist when resolution of the nonappealable issue

was not necessary to resolve the appealable one. See

Sa

Summit Med. Assocs., 180 F.3d at 1335 (“[Wje may

resolve the Eleventh Amendment immunity issue here

without reaching the merits of standing|, so t]hese

issues are neither ‘inextricably intertwined’ nor

‘necessary to ensure meaningful review’ of one

another.”); Moniz v. City of Fort Lauderdale, 145 F.3d

1278, 1281 n.3 (11th Cir. 1998) (“Because we may

resolve the qualified immunity issue in this case

without reaching the merits of appellants’ challenge to

... Standing, ... we conclude that the latter issue...

does not fall within our pendent appellate jurisdiction

under Swint.”); Harris v. Bd. of Educ. of Atlanta, 105

F.3d 591, 595 (11th Cir. 1997) (declining pendent

appellate jurisdiction because the qualified immunity

issue could be resolved “without reaching the merits of

the remaining questions” raised by the parties).

In the Eleventh Circuit, we have never exercised

pendent appellate jurisdiction to review an issue like

the one raised by the cross-appeal. The district court

did not base its decision of whether to dismiss the

European Plaintiffs on its decision as to the King

Plaintiffs. See King ex rel. Estate of King, 405 F. Supp.

2d at 1378-81 (cited by King, 2008 WL 276015, at *2);

cf. Fox, 519 F.3d at 1302; Chudasama, 123 F.3d at

1365. The orders did not result from the same

determination because, although some of the factors in

the forum non conveniens analysis applied equally to

both the European Plaintiffs and the King Plaintiffs,

the district court’s order clearly shows the analysis

was conducted separately for both groups. See King ex

rel. Estate of King, 405 F. Supp. 2d at 1378-81 (cited by

King, 2008 WL 276015, at *2); cf Lopez-Lukis, 102

F.3d at 1167 n.10. Furthermore, a determination of the

propriety of the district court’s refusal to dismiss the

King Plaintiffs is not necessary to resolve the propriety

Ya

of its decision to dismiss the EHuropean Plaintiffs for

forum non conveniens. See Summit Med. Assocs., 180

F.3d at 1335; Moniz, 145 F.3d at 1281 n.3; Harris, 105

F.3d at 595. For these reasons, we will review the

European Plaintiffs’ appeal but we do not have

jurisdiction to review Cessna’s cross-appeal.

II. STANDARD OF REVIEW

A district court’s forum non _ conveniens

determination “may be reversed only when there has

been a clear abuse of discretion; where the court has

considered all relevant public and private interest

factors, and where its balancing of these factors is

reasonable, its decision deserves’ substantial

deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235,

257, 102 S. Ct. 252, 266 (1981). Specifically, when

applying abuse of discretion review, the Supreme

Yourt has instructed appellate courts not to “losfe]

sight of this rule, and substitute[ their] own judgment

for that of the District Court.” /d., 102 S. Ct. at 266-67.

IV. DISCUSSION

When it made its motion for dismissal on grounds

of forum non conveniens, Cessna must have

demonstrated “that (1) an adequate alternative forum

[was] available, (2) the public and private factors

weigh|[ed] in favor of dismissal, and (3) the plaintiffls

could] reinstate [their] suit in the alternative forum

without undue convenience or prejudice.” See Leon v.

Milion Atr, Inc., 251 F.8d 1305, 1310-11 (11th Cir.

2001). The Supreme Court outlined a number of

private and public interest factors for courts to

consider in a forum non conveniens determination. See

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.

10a

Ct. 839, 843 (1947). In Gilbert, the Court listed these

factors in detail:

An interest to be considered, and the one likely

to be most pressed, ts the private interest of the

litigant. Important considerations are _ the

relative ease of access to sources of proof;

availability of compulsory process _ for

attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses;

possibility of view of premises, if view would be

appropriate to the action; and all other practical

problems that make trial of a case easy,

expeditious and inexpensive. There may also be

questions as to the enforcibility of a judgment if

one is obtained. The court will weigh relative

advantages and obstacles to fair trial. It is often

said that the plaintiff may not, by choice of an

inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’

the defendant by inflicting upon him expense or

trouble not necessary to his own right to pursue

his remedy. But unless the balance is strongly

in favor of the defendant, the plaintiff's choice of

forum should rarely be disturbed.

Factors of public interest also have place in

applying the doctrine. Administrative

difficulties follow for courts when litigation is

piled up in congested centers instead of being

handled at its origin. Jury 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

lla

learn of it by report only. There is a local

interest in having localized controversies

decided at home. There is an appropriateness,

too, in having the trial of a diversity case in a

forum that is at home with the state law that

must govern the case, rather than having a

court in some other forum untangle problems in

conflict of laws, and in law foreign to itself.

Id. (footnote omitted).

These factors are not exhaustive or dispositive, and

courts are free to be flexible in responding to cases as

they are presented. Sigalus, 776 F.2d at 1519. A trial

court will look at the private interests first and then,

if the balance of the private interests are found “to be

in equipoise or near equipoise,” it will “determine

whether or not factors of public interest tip the balance

in favor of a trial in a foreign forum.” See La

Seguridad v. Transytur Line, 707 F.2d 1304, 1307

(11th Cir. 1983).

A. Availability and Adequacy of the Italian Forum

The defendant bears the burden of demonstrating

an adequate alternative forum is_ available.

“Availability and adequacy warrant separate

consideration.” Leon, 251 F.3d at 13811. Ordinarily, an

alternative forum is available “when the defendant is

‘amenable to process’ in the other jurisdiction.” Piper,

454 USS. at 255 n.22, 102 S. Ct. at 265 n.22 (citation

omitted). An alternative forum is adequate if it

provides for litigation of the subject matter of the

dispute and potentially offers redress for plaintiffs’

injuries. See id. “An adequate forum need not be a

perfect forum,” but it must provide a satisfactory

12a

remedy. Satz v. McDonnell Douglas Corp., 244 F.3d

1279, 1283 (11th Cir. 2001).

In this case, Italy is an available forum because

Cessna is willing to submit to jurisdiction and is

amenable to process there. In declaring Italy an

adequate forum, the district court noted Italian courts

have addressed similar cases and awarded satisfactory

remedies. Both parties agree Italian Jaw provides the

rule of decision regardless of whether the claims are

litigated in Milan or Miami. Although they disagree

over whether Cessna will be found liable to the

European Plaintiffs under Italian law, Italian tort law

provides the plaintiffs with comparable remedies for

their injuries. See, e.g., Membreno v. Costa Crociere

S.P.A., 425 F.3d 932, 937 (11th Cir. 2005) (recognizing

Italy as an adequate forum for tort claims). For these

reasons, we find the district court did not abuse its

discretion in finding Italy was an adequate alternative

forum for the European Plaintiffs’ claims.

B. Private Interest Factors

With regard to weighing the private interests, a

“plaintiffs choice of forum should rarely be disturbed.”

Gilbert, 330 U.S. at 508, 67 S. Ct. at 843. The

presumption ir favor of the plaintiffs forum choice is

strongest when the plaintiffis a United States citizen,

resident, or corporation. See SME Racks, Inc. v.

Sistemas Mecanicos Para Electronica, S.A., 382 F.3d

1097, 1101 (11th Cir. 2004). A foreign plaintiffs choice

of forum, however, is a weaker presumption that

receives less deference. Piper, 454 U.S. at 256, 1028S.

Ct. at 266; SME Racks, 382 F.3d at 1101; Ford v.

Brown, 319 F.3d 1302, 1307 (11th Cir. 2003); Leon, 251

F.3d at 1315. The European Plaintiffs point out a

l3a

majority of them are from countries having bilateral

treaties with the United States that accord them “no

less favorable” access to U.S. courts to redress injuries

caused by American actors.’ Thus, they argue, the

district court erred in giving their choice less

deference. We disagree.

The Second Circuit in Farmanfarmaian v. Gulf Oil

Corp., 588 F.2d 880 (2d Cir. 1978), concluded a

foreigner’s right to sue in the United States is not of a

lesser magnitude than an American’s right when a

treaty exists between the two countries giving a

foreigner “no less favorable” access to the other

country’s courts. Jd. at 882. However, in a later case,

Pollux Holding Ltd. v. Chase Manhattan Bank, 329

F.3d 64 (2d Cir. 2003), the Second Circuit further

* The European Plaintiffs represent 21 Swedish citizens, 19

Italian citizens, 19 Danish citizens, 4 Finnish citizens, 3

Norwegian citizens, 1 Romanian citizen, and 1 British citizen.

There is also one Italian personal injury claimant. Those

representing the Italian and Danish decedents and the Italian

personal injury claimant-—-39 of the 69 plaintiffs—are entitled by

treaty to “no less favorabie” treatment than an American national

when suing in U.S. courts’ See Treaty of Friendship, Commerce

and Navigation, U.S.-Italy, art. V.4, July 26, 1949, 63 Stat. 2255,

1949 WL 37628; Treaty of Friendship, Commerce and Navigation,

U.S.-Denmark, arts. V.1 & XXII.1, July 30, 1961, 12 U.S.T. 908,

1961 WL 62672. Eight others-—-representing the Finns,

Norwegians, and Romanian—are entitled to “freedom of access”

or “access” to U.S. courts. Treaty of Friendship, Commerce and

Consular Rights, U.S.-Finland, art. I, Aug. 10, 1934, 49 Stat. 2659,

1934 WL 29046; Treaty of Friendship, Commerce and Consular

Rights, U.S.-Norway, art. I, Sept. 15, 1932, 47 Stat. 2135, 1932

WL 31050; Agreement on Trade Relations between the United

States and Romania, U.S.-Romania, arts. IV.2 & V.2, Aug. 3,

1975, 26 U.S.T. 2605, 1975 WL 165548.

l4a

explained the level of deference that would be given to

a foreign piaintiffs choice of forum:

Even assuming that, by treaty, plaintiffs

were entitled to access American courts on the

same terms as American citizens .. ., our case

law does not support plaintiffs’ assertion that

such a treaty would require that their choice of

forum be afforded the same deference afforded

to a U.S. citizen bringing suit in his or her home

forum. Such a _ proposition impermissibly

conflates citizenship and convenience... .

A court considering a motion for dismissal on

the grounds of forum non conveniens does not

assign “talismanic. significance to the

citizenship or residence of the parties,” ... and

there is no inflexible rule that protects U.S.

citizen or resident plaintifts from having their

causes dismissed for forum non conveniens. . . .

[A] ppellants cannot successfully lay claim to

the deference owed an American citizen or

resident suing in her home forum. Plaintiffs are

only entitled, at best, to the lesser deference

afforded a U.S. citizen living abroad who sues in

a U.S. forum.

Id. at 73 (citations omitted). This analysis makes clear

that although citizenship often acts as a proxy for

convenience in the forum non conveniens analysis, the

appropriate inquiry is indeed convenience.

In this case, then, the lesser deference given by the

district court to the European Plaintiffs’ choice of

forum was consistent with the treaty obligations of the

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United States. Just as it would be less reasonable to

presume an American citizen living abroad would

choose an American forum for convenience, so too can

we presume a foreign plaintiff does not choose to

litigate in the United States for convenience. See

Stnochem Int'l Co. v. Malaysia Int'l Shipping Corp.,

549 U.S. 422, 430, 1275S. Ct. 1184, 1191 (2007) (“When

the plaintiffs choice is not its home forum, .. . the

presumption in the plaintiffs favor ‘applies with less

force,’ for the assumption that the chosen forum is

appropriate is in such cases ‘less reasonable.” (quoting

Piper, 454 U.S. at 255-56, 102 S. Ct. at 266)).

Accordingly, the district court did not abuse its

discretion by according the European Plaintiffs’ choice

of forum less deference.

Other relevant private interest factors include “the

relative ease of access to sources of proof; availability

of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witness; . . .

and all other practical problems that make trial of a

case easy, expeditious and inexpensive.” Gilbert, 330

U.S. at 508, 67 S. Ct. at 843. The location of much of

the evidence of this case is in Italy. Although some

evidence has already been gathered and the crash

reports have been translated, the district court pointed

out that Cessna disputes the tort element of causation

based on intervening factors, the evidence of which can

only be obtained from Italian witnesses. See Ford, 319

F.3d at 1308 (“Perhaps the most important ‘private

interest’ of the litigants is access to evidence.”); see

also Magnin v. Teledyne Continental Motors, 91 F.3d

1424, 1430 n.2 (11th Cir. 1996) (rebuffing the

contention that _a French accident report was an

adequate substitute for defendant’s desire to present

live French witnesses to establish the cause of a

16a

foreign airplane crash). The district court also found

there were “practical problems” that complicated

trying the case in the United States, including

differing liability issues and damages among the

Plaintiffs and the fact that some Plaintiffs have

already litigated and continue to litigate a similar suit

in Italy concerning the crash.

C. Public Interest Factors

After discussing the private interests and having

found them in or near equipoise, the district court

analyzed the public interest factors weighing in favor

of dismissal of the European Plaintiffs’ case. Public

interest factors include each forum’s interest in

hearing the case, the administrative burdens placed on

the Court in hearing the case, and the need to apply

foreign law. See Gilbert, 330 U.S. at 508-09, 67 S. Ct.

at 843. The district court found that Italy has a strong

interest in resolving this case, especially because the

tragic event occurred on Italian land. The court

expressed concern that evaluating liability and

damages issues as to each of these European Plaintiffs

would place a heavy burden on its limited resources.

Finally, after conducting a two-day Italian law

hearing, the court concluded application of Italian law

to the numerous issues in this case weighed in favor of

dismissal. See Sigalas, 776 F.2d at 1519 (“The need to

resolve and apply foreign law should ‘point the trial

court towards dismissal.” (quoting Piper, 454 U.S. at

260, 102 S. Ct. 252)).

In the trial court’s analysis, these public interest

factors tipped the balance in favor of a trial in Italy for

the European Plaintiffs’ case. The district court

engaged in a thorough, reasonable analysis of the

17a

relevant private and public interest factors, and it did

not abuse its discretion in finding the factors weighed

in favor of dismissal of the European Plaintiffs.

D. Conditions of the Dismissal

We modify the dismissal order to require Cessna to

submit to the jurisdiction of the Italian courts and

waive the statute of limitations. See 28 U.S.C. § 2106

(giving appellate courts the authority to modify). We

further modify the dismissal order to provide that any

case dismissed pursuant to the district court’s order

may be reinstated in the event that jurisdiction to

entertain such a case is rejected by a final decision of

a court in Italy. We note that conditioning the

dismissal does not destroy finality, nor leave the case

pending in the district court. See Leon, 251 F.3d at

1316; Sigalas, 776 F.2d at 1515-16.

V. CONCLUSION

Echoing the district judge’s sentiments, we are

extremely sympathetic to those affected by this tragic

airplane crash. Still, our sympathy for the victims and

their families cannot alter our conclusion that the

district court did not abuse its discretion in dismissing

the European Plaintiffs on the grounds of forum non

conveniens. Accordingly, the district court’s order is

modified as provided in this opinion and, as modified,

is affirmed.

AFFIRMED IN PART, DISMISSED IN PART.

18a

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Case Number: 03-20482-CIV-MORENO

[Filed January 31, 2008]

JACK KING, as Personal Representative of the

Estate of JESSICA KING, et al.,

Plaintiffs,

CESSNA AIRCRAFT CO., a Kansas corporation,

)

)

)

)

)

VS. )

)

)

)

Defendant. )

)

ORDER ON RENEWED MOTION TO DISMISS

FOR FORUM NON CONVENIENS

This case’ is now before the Court on remand from

the United States Court of Appeals for the Eleventh

Circuit’s order and mandate in King v. Cessna Aircraft

Co., 505 F.3d 1160 (11th Cir. 2007), which vacated this

Court’s October 2005 Order on Forum Non Conveniens,

' The companion case is Brega v. Cessna Aircraft Co., No.

03-22669-CIV-MORENO.

19a

King v. Cessna Aircraft Co., 405 F. Supp. 2d 1374 (S.D.

Fla. 2005) that stayed the King case and dismissed the

foreign Plaintiffs. The Eleventh Circuit remanded the

case to this Court for a determination as to “what, if

anything, the court might have done differently had it

known that it could not stay proceedings in the King

case.” King, 505 F.3d at 1173. The Court responds that

it would have reached the same conclusion in its forum

non conveniens analysis. Accordingly, for the reasons

stated in this Court’s previous Order, King v. Cessna

Aircraft Co., 405 F. Supp. 2d 1374, the foreign

Plaintiffs are dismissed, and Plaintiff Jack King shall

proceed in this Court.

BACKGROUND’

These cases stem from the deadliest aviation

disaster in Italian history. On a foggy morning in

October of 2001 at the Linate airport in Milan, Italy, a

private Cessna jet, operated by Air Avex, collided with

a Scandinavian Air Systems jet killing one hundred

and eighteen people. In addition to the continuing

litigation in Italian courts, the _ personal

representatives of the estates of sixty-nine victims and

one personal injury claimant have filed lawsuits in the

Southern District of Florida against the Defendant. All

but one of the Plaintiffs are European citizens. The

remaining Plaintiff, Jack King, is the personal

representative of the estate of his daughter, Jessica

King, an American citizen.

’ For a more comprehensive case history, see the Eleventh

Circuit’s opinion, King v. Cessna Aircraft Co., 505 F.3d 1160,

63-65 (11th Cir, 2007).

20a

The Defendant filed motions to dismiss all of the

actions on grounds of forum non conveniens. The Court

initially denied those motions. The Court further

denied the Defendant’s motion for reconsideration.

However, in response to changed circumstances within

the litigation, the Court invited the parties to re-brief

Cessna’s motion for reconsideration based on the issue

of forum non conveniens. After considering the parties’

briefs and hearing oral argument on the matter, the

Court issued an Order on Forum Non Conveniens in

which it granted in part the Defendant’s motion for

reconsideration. King, 405 F. Supp. 2d 1374. The Court

dismissed the actions of the foreign Plaintiffs based on

forum non conveniens but stayed the King case

pending the resolution of the litigation underway in

the Italian courts. Id. at 1381.

On appeal, the Eleventh Circuit affirmed this

Court’s decision that Jessica King was a citizen of the

State of California for purposes of establishing subject

matter jurisdiction based on diversity, but reversed

this Court’s indefinite stay of the King case. King, 505

F.3d at 1173. The Eleventh Circuit remanded the case

to this Court to deterniine what impact, if any, the

stay of the King case had on the Court’s decision to

dismiss the foreign Plaintiffs. 1d.

DISCUSSION

Specifically, the question presented to this Court by

the Eleventh Circuit is whether, “liJf the district court

had known it could not avoid dual proceedings by

staying the King case,” it would have (1) “dismissed all

of the plaintiffs, including King,” or (2) “allowed all of

the plaintiffs to proceed here,” or (3) “pursued some

other avenue.” Id. at 1173. Further, the Eleventh

2la

Circuit clarified that it neither “express{es] nor

impl[ies] any view on the correctness of any options

that the district court may choose on remand.” Id.

Upon consideration of these options, the Court elects

to “pursue some other avenue.” The Eleventh Circuit

aptly noted that through the Court’s previous Order,

which “stay[ed] the King case and nudg{[ed] the foreign

plaintiffs toward litigation in a more appropriate

forum,” the Court attempted to “avoid wasteful and

duplicative litigation.” Id. at 1173. Although the Court

recognizes that avoiding duplicative litigation by

staying the King case was one consideration in its

decision to dismiss the foreign Plaintiffs, it did not so

heavily impact the Court’s forum non conveniens

analysis that vacating the stay would have precluded

the dismissal of the foreign Plaintiffs. Accordingly, for

the reasons stated in this Court’s previous opinion,

King v. Cessna Aircraft Co., 405 F. Supp. 2d 1374 (S.D.

Fla. 2005), Defendant’s Motion to Dismiss for Forum

Non Conveniens is granted in part. The foreign

Plaintiffs are dismissed, and Plaintiff Jack King shall

proceed before this Court.

DONE AND ORDERED in Chambers at Miami,

Florida, this 3lst day of January, 2008.

/s/

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

22a

APPENDIX C

(PUBLISH)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed October 24, 2007]

No. 06-10519

D. C. Docket No. 03-20482-CV-FAM

JACK KING, as personal representative of

the Estate of Jessica King, deceased,

ANETTE FORSMAN, individually and/or

personal representative and/or as the Person

legally authorized under applicable law to

bring this wrongful death case for herself,

all potential beneficiaries and/or the Estate

of Robin Forsman, deceased, et al.,

Plaintiffs-Appellants,

versus

CESSNA AIRCRAFT COMPANY, a foreign

corporation,

Defendant-Appellee.

ee ee eee Oe Se

23a

No. 06-10994

D. C. Docket No. 03-22669-CV-FAM

BARBARA BREGA, individually, and/or as

Personal Representative and/or as the

persons legally authorized under applicable

law to bring this wrongful death case for

themselves, all potential beneficiaries and/or

the Estate of Stefano Romanello, deceased,

Plaintiff-Appellant,

versus

CESSNA AIRCRAFT CO., a Kansas corporation,

JEFFERSEN SANDERSON, INC., a Delaware

corporation, d.b.a. Jeppesen Company,

Defendants-Appellees.

ee a ee ae ee ae ae a a Le Le Le Le Le ee ee

Appeals from the United States District Court

for the Southern District of Florida

(October 24, 2007)

24a

Before CARNES and WILSON, Circuit Judges, and

STAGG, District Judge.

CARNES, Circuit Judge:

These cases arise out of a tragic accident that

occurred one foggy morning in October of 2001 at the

Linate airport in Milan, Italy. A private Cessna jet

operated by Air Evex, a German charter company,

made a wrong turn, taxiing toward an active runway.

After air traffic controllers apparently failed to make

the problem clear to the plane’s pilots, the Air Evex jet

collided with a Scandinavian Air Systems jet that was

just taking flight. One hundred and eighteen people

died, including everyone on board both planes and four

people on the ground. Another person was seriously

injured. It was the deadliest aviation disaster in

Italian history.

In addition to litigation that is ongoing in the

Italian courts, lawsuits were filed in the Southern

District of Florida against Cessna Aircraft Company,

an American corporation, by the estates of seventy

victims and one personal injury claimant. The

decedents in sixty-nine of the estates were European

citizens, as is the personal injury claimant. We will be

calling them the European plaintiffs. The remaining

plaintiff is Jack King, the personal representative of

the estate of his daughter, Jessica King, an American

citizen.

* Honorable Tom Stagg, United States District Judge for the

Western District of Louisiana, sitting by designation

25a

The district court ordered all of the complaints that

had been filed before it, except one (which was the only

complaint that stated a contractual claim),

consolidated into a master complaint for

administrative purposes. Cessna filed a motion to

dismiss in favor of the Italian courts on grounds of

forum non conveniens. The district court eventually

granted that motion as to all of the European

plaintiffs. While the district court denied the motion as

to the King plaintiff, it did grant a stay of proceedings

in that case pending resolution by the Italian courts of

Italian law issues relating to Cessna’s liability and any

damages the company might owe the plaintiffs. The

district court then de-consolidated the cases. We

re-consolidated them for purposes of appeal.

This appeal by all seventy-one plaintiffs does not

involve any liability or damages issues. Instead, it

presents a threshold question of appellate jurisdiction

and a question of subject matter jurisdiction. The

non-jurisdictional issue presented is whether the

district court abused its discretion in dismissing the

European plaintiffs’ actions on forum non conveniens

grounds and staying further proceedings in the King

case.

Cessna filed its motions to dismiss all of the

lawsuits on forum non conveniens grounds in January

and March of 2004. The district court initially denied

those motions. In an order issued in October 2004, the

court concluded that Jack King, a citizen of the United

States, deserved the full deference to his choice of

forum normally afforded domestic plaintiffs. Although

it concluded that the foreign plaintiffs were not

~

26a

entitled to that same deference, the court reasoned

that it made little sense to dismiss the foreign

plaintiffs’ suits while retaining King’s lawsuit. Doing

that would result in two sets of lawsuits involving the

same accident proceeding in different jurisdictions,

ostensibly in the name of convenience. The court noted

that the plaintiffs’ theory of liability turned on acts at

Cessna’s corporate headquarters in the United States,

and it found that, while the dispute was governed by

the substantive law of Italy, the Italian law issues

were “fairly simple.” After balancing the relevant

public and private interest factors, the court concluded

that Cessna had “failed to show that a material

injustice would be manifest” if the case proceeded to

trial in the United States.

Cessna moved for reconsideration. The district

court denied that motion as well, but had some doubt

about its subject matter jurisdiction based on the

domicile of Jessica King at the time of her death. The

court invited Cessna to file a motion to dismiss on that

ground, which it did. After considering that motion to

dismiss and the plaintiffs’ opposition, the district court

concluded that the presence of the King plaintiff did

not destroy the diversity of citizenship which was

necessary to the court’s subject matter jurisdiction

over the lawsuit.

After the district court had denied Cessna’s motions

to dismiss, and as the litigation progressed, the court

found that the cases had changed in two ways relevant

to this appeal. First, the court perceived that the

plaintiffs’ claims had evolved from a theory of liability

that focused on acts and omissions by Cessna at its

corporate headquarters in the United States to a

theory dependent on acts by Cessna’s agents at the

27a

Linate airport in Milan. This shift in the factual locus

of liability, combined with changes in Cessna’s defense

strategy, convinced the court that the Italian law

issues were going to be more complicated than it had

thought. The second way in which the circumstances

had changed is that Cessna presented the district

court with evidence that some of the plaintiffs in the

cases before it, including Jack King, were litigating a

civil action in Italy against Air Evex and various

Italian governmental entities.

Responding to these changed circumstances, the

district court asked the parties to re-brief Cessna’s

motion for reconsideration of the forum non conveniens

issue. After considering those briefs and hearing

argument on the matter, the court issued an order in

October of 2005 in which it re-weighed the public and

private forum non conveniens factors and concluded

that a dismissal based on forum non conveniens was

warranted as to the actions of all of the foreign

plaintiffs but not as to Jack King’s lawsuit.

The district court’s order dismissing the foreign

plaintiffs’ actions on forum non conveniens grounds

was based on the combined effect of several factors.

The nature of the claims and defense strategy had

changed, complicating the Italian law issues and

making Italy an increasingly attractive forum for

resolution of the disputes. The fact that some of the

plaintiffs were already litigating in Italy made parallel

litigation unavoidable.

Still, the court decided not to dismiss the King

lawsuit on forum non conveniens grounds. The

difference betwcen King and the European plaintiffs,

the court explained, is that, as a United States citizen

28a

plaintiff, King is entitled to a presumption in favor of

his chosen forum. Moreover, it noted, much of the

evidence relating to King’s claims either already had

been discovered in the United States or was likely to

be found here.

Even though the district court thought King was

entitled to litigate his lawsuit here, the court was not

ready to proceed with it. Instead, the court decided to

stay the King case pending resolution of the related

litigation in the Italian courts, which hopefully would

provide answers to some of the Italian law issues. By

staying the case, the district court reasoned that. it

could reduce the cost of duplicative litigation, increase

the likelihood that it would resolve the Italian law

issues correctly, and provide King with the forum to

which he was entitled.

This is the appeal of the district court’s order by the

European plaintiffs dismissing their actions on forum

non conveniens grounds, and King’s appeal of the

order staying proceedings in his case pending the

outcome of the Italian litigation.

II.

We begin our analysis with a review of our

jurisdiction to hear this appeal because, if the

requirements for appellate jurisdiction are not met “we

cannot review whether a judgment is defective, not

even where the asserted defect is that the district

court lacked jurisdiction.” United States v. Machado,

465 F.3d 1301, 1306 (11th Cir. 2006). On February 8,

2006, we issued the following jurisdictional question:

29a

Whether the district court’s November 1, 2005,

order dismissing the case as to the 69 foreign

plaintiffs and staying the case as to plaintiff

Jack King and the December 14, 2005, order

denying reconsideration are final and

appealable? See 28 U.S.C. § 1291; Gillespie v.

United States Steel Corp., 379 U.S. 148, 152, 85

S. Ct. 308, 311, 13 L.Ed.2d 199 (1964);

FOGADE v. ENB Revocable Trust, 263 F.3d

1274, 1285 (11th Cir. 2001); Sigalas v. Lido

Mar., Inc., 776 F.2d 1512, 1516 (11th Cir. 1985);

Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365,

1368-69 (llth Cir 1983); Broussard _v.

Lippman, 643 F.2d 1131, 1133 (5th Cir. Unit A

Apr. 1981).

Cessna responded with a motion to dismiss the appeal,

[Appellee’s Mot. to Dismiss Appeal] contending that

the district court’s order was not a final judgment as to

all parties, because the court had stayed rather than

dismissed King’s claims.

The general rule is that a stay is not a final

disposition, and thus not immediately appealable. See

Moses H. Cone Mem’! Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 10 n.11, 103 S. Ct. 927, 934 n.11 (1983).

However, there is an exception for stays that put a

plaintiff “effectively out of court,” and in applying that

exception we have held that a stay order that is

immoderate and involves a protracted and indefinite

period of delay is final and appealable under 28 U.S.C.

§ 1291. Id; see also Am. Mfrs. Mut. Ins. Co. v. Edward

D. Stone, Jr. & Assoc., 743 F.2d 1519, 1523-24 (11th

Cir. 1984); CTl-Container Leasing Corp. v. Uiterwyk

Corp., 685 F.2d 1284, 1287-88 (11th Cir. 1982).

30a

Cessna attempts to escape the force of those

precedents by equating the principle they apply to the

“death knell” doctrine, see generally Kmart Corp. v.

Aronds, 123 F.3d 297, 300 (5th Cir. 1997). It argues

that we need not follow those precedents because the

Supreme Court’s decision in Quackenbush v. Allstate

Insurance Co., 517 U.S. 706, 116 S. Ct. 1712 (1996),

sounded the death knell of the death knell doctrine.

The Supreme Court first recognized the doctrine at

issue in this case, the “effectively out of court” version

of finality, in Idlewild Bon Voyage Liquor Corp.

Epstein, 370 U.S. 713, 715 n.2, 82S. Ct. 1294, 1296 n.2

(1962). In that case a liquor distributor filed a

complaint in federal court seeking a declaratory

judgment that the New York Alcoholic Beverage

Control Law would be unconstitutional as it was

applied. Id. at 714, 82 S. Ct. at 1295. The distributor

asserted a statutory right to have its case heard by a

three judge panel. Id. The district court refused to

convene a three judge court and stayed the lawsuit

based on the Pullman abstention doctrine, under

which federal courts abstain from _ resolving

constitutional disputes where a_ state court’s

clarification of its own law might render a

constitutional ruling unnecessary. Id. at 714, 82S. Ct.

at 1295-96; see R.R. Comm’n v. Pullman Co., 312 U.S.

496, 501-02, 61S. Ct. 643, 645—46 (1941). The Second

Circuit found that it had jurisdiction over the appeal

and held that the district court had erred in refusing

to convene a three judge panel, but nonetheless

dismissed the appeal for reasons not relevant to our

discussion. Idlewild, 370 U.S. at 714, 715 n.2, 825. Ct.

at 1296 & n.2. On review the Supreme Court noted:

“The Court of Appeals properly rejected the argument

that the order of the District Court ‘was not final and

3la

hence unappealable under 28 U.S.C. §§ 1291, 1292,

pointing out that ‘appeiiant was effectively out of

court.” Id. at 715 n.2, 82S. Ct. at 1296 n.2. The Court

offered no further explanation. Id.

Two decades later in Moses H. Cone, the Supreme

Court applied Idlewild’s “effectively out of court”

doctrine. Moses H. Cone, 460 U.S. at 9-10, 103 S. Ct.

at 933-34. There a federal district court had stayed an

action under the Colorado River abstention doctrine,

which permits a federal court to abstain from

exercising concurrent jurisdiction with a state court

under certain exceptional circumstances. Id. at 4, 103

S. Ct. at 931; see Colo. River Water Conservation Dist.

v. United States, 424 U.S. 800, 817-21, 96S. Ct. 1236,

1246-48 (1976). The Fourth Circuit reversed the stay,

and the Supreme Court affirmed. Moses H. Cone, 460

U.S. at 4, 103 S. Ct. at 931. In doing so, the Court

explained that since it had found that it had

jurisdiction over the Idlewild appeal, it must also have

jurisdiction over the Moses H. Cone appeal, because

“the argument for finality of the District Court’s order

is even clearer” under Colorado River abstention than

under Pullman abstention. Id. at 10, 103 S. Ct. at 933.

That is so because “[a} district court stay pursuant to

Pullman abstention is entered with the expectation

that the federal litigation will resume in the event that

the plaintiff does not obtain relief in state court on

state-law grounds.” Id. at 10, 103 S. Ct. at 934. By

contrast, a stay under Colorado River usually

contemplates there will be no further litigation in the

federal forum. Id.

The Supreme Court in Moses H. Cone did clarify

that Idlewild had not created a broad exccption to “the

usual rule that a stay is not ordinarily a final decision

3Za

for purposes of § 1291, since most stays do not put the

plaintiff ‘effectively out of court.” Id. at 10n.11, 103 S.

Ct. at 934 n.11. What it was doing in Moses H. Cone,

the Court explained, was no more than extending the

Idlewild decision to cases involving Colorado River

abstention “or a closely similar doctrine.” Id.

The Court also made clear in Moses H. Cone that

the “effectively out of court” doctrine was not the same

thing as the “death knell” doctrine, which by then had

been scrapped. Id. The difference, the Court explained,

is that in a “death knell” case “the order sought to be

appealed hals] no legal effect on the named plaintiffs

ability to proceed with his individual! claim in federal

court,” although the plaintiff may elect not to continue.

Id. For example, when a court refuses to certify a class,

the named plaintiff has a legal right to proceed, even

though the economic incentive to do so has been

diminished. Id. By contrast, in a case where the

district court’s order puts the plaintiff “effectively out

of court” continued federal court litigation is not an

option. “There is an obvious difference between a case

in which the plaintiff himself may choose not to

. proceed, and a case in which the district court refuses

to allow the plaintiff to litigate his claim in federal

court.” Id.

Finally came the Quackenbush case, in which the

Supreme Court examined the appealability of an

abstention-based remand order entered under the

Burford abstention doctrine, under which federal

courts may dismiss certain cases in deference to

complex state administrative procedures.

Quackenbush, 517 U.S. at 709, 116 S. Ct. at 1717;

Burford v. Sun Oil Co., 319 U.S. 315, 333 n.29, 63 S.

Ct. 1098, 1107 n.29 (1943). The Court concluded that

33a

the “order remanding on grounds of Burford abstention

is in all relevant respects indistinguishable from the

stay order we found to be appealable in Moses H.

Cone.” 517 U.S. at 714, 116 S. Ct. at 1719. The

“relevant respects” the Court identified were that the

order put the litigants “effectively out of court” and

that “it conclusively determine|d] an issue that [was]

separate from the merits, namely, the question

whether the federal court should decline to exercise its

jurisdiction in the interest of comity and federalism.”

Id. at 714, 116 S. Ct. at 1719-20.

Our Circuit has had several opportunities to apply

the “effectively out of court” doctrine. See Stone, 743

F.2d at 1522-24; CTI-Container Leasing Corp., 685

F.2d at 1287-88; Hines v. D’Artois, 531 F.2d 726,

730—32 (5th Cir. 1976). In Hines, which was issued

after the Supreme Court’s decision in Idlewild but

before its decisions in Moses H. Cone and

Quackenbush, we held that we had jurisdiction over an

appeal from a district court order staying litigation in

an employment discrimination lawsuit until the

plaintiffs filed a complaint with the Equal

Employment Opportunity Commission and pursued it

to final EEOC action. Hines, 531 F.2d at 728. In

CTI-Container, also decided before Moses H. Cone, we

found that we had jurisdiction over an order staying a

lawsuit pending a determination by the Iran-United

States Claims Tribunal of its jurisdiction to hear the

claims raised in that lawsuit. CTI-Container, 685 F.2d

at 1286, 1288.

In Stone we had our first opportunity to apply the

Idlewild doctrine in light of the Moses ¥. Cone

decision. Stone, 743 F.2d at 1523. The district court in

Stone had entered a stay pending the resolution of a

34a

previously filed state action. Id. at 1521. Both of the

“parties acknowledge[d] that the state lawsuit will not

decide the issues presented in [the plaintiffs] federal

claim.” Id. at 1523. We held that we have jurisdiction

over litigants placed “effectively out of court” even

where a “state decision will not have res judicata effect

on the merits of |the plaintiffs] federal claim.” Id.

We have yet to address the effect of the

Quackenbush decision on the scope of Moses H. Cone.

Four years after Quackenbush, we did on facts similar

to those here vacate as “immoderate” a stay of a case

pending the resolution of a related one in another

country. See Ortega Trujillo v. Conover & Co.

Comme'ns, 221 F.3d 1262, 1264-65 (11th Cir. 2000).

However, our Trujillo opinion did not recognize any

jurisdictional issue, much less explain why we had

jurisdiction to decide the appeal. See generally id. The

implication of our Trujillo decision—that we have

jurisdiction in this situation—does not bind us,

because the prior precedent rule does not extend to

implicit jurisdictional holdings. See Okongwu v. Reno,

229 F.3d 1327, 1330 (11th Cir. 2000). We are free to

decide the issue here, just as though there were no

Trujillo decision, but we reach the same conclusion.

Applying the “effectively out of court” doctrine to

the facts before us, it is apparent that King is at least

as “effectively out of court” as the plaintiff in Idlewild

was. The only notable difference between this case and

Idlewild is that the stay in this case was issued in

favor of foreign litigation, while the stay in Idlewild

was issued in favor of state court litigation. The

question, then, is whether that distinction matters to

application of the “effectively out of court” exception to

the finality rule of appellate jurisdiction.

35a

Cessna, of course, contends that it does matter. It

argues that “[flor purposes of appealability, the

significance of abstention doctrines based on

federalism is that generally, when a federal court

abstains in deference to a state court or [state]

regulatory agency, the abstention necessarily ends the

federal court’s involvement with the suit.” (quotation

marks and alternations in original omitted). That is

true, Cessna says, because the resulting judgment in

state court will often have res judicata effect on any

later federal litigation. This is a_ sophisticated

argument, but not one that can be squared with the

Idlewild decision.

If the Idlewild doctrine were confined to cases in

which abstention necessarily will end federal court

involvement in the lawsuit, or generally does so, the

Supreme Court was mistaken about the disposition of

that very case, and for our purposes the Supreme

Court never makes a mistake. In Idlewild the district

court had stayed the federal litigation based on

Pullman abstention. See Moses H. Cone, 460 U.S. at 9,

103 S. Ct. at 933. As the Supreme Court later

reminded us in Moses H. Cone, the Pullman doctrine

is not one of the state court abstention doctrines that

is likely to result in a res judicata effect on subsequent

federal litigation. Id. at 10, 103 S. Ct. at 934. Instead,

“taj district court stay pursuant to Pullman abstention

is entered with the expectation that the federal

litigation will resume in the event that the plaintiff

does not obtain relief in state court on state law

grounds.” Id. If, as Cessna argues, the Idlewild

doctrine did not apply to cases in which “the

expectation {is} that the federal litigation will resume”

should the plaintiff be unhappy with the state court

36a

results, the Supreme Court would have reached the

opposite jurisdictional holding in Idlewild itself.

Cessna’s characterization of the “effectively out of

court” exception could only be correct if Moses H. Cone

or Quackenbush overturned Idlewild. Neither did.

Both indicate that Idlewild remains good law. See id.

at 10 n.11 (“This answers the dissent’s argument that

Idlewild was overruled. .. .” (citations omitted));

Quackenbush, 517 U.S. at 713, 116 S. Ct. at 1719

(referring to its holding as “this reliance on Idlewild”).

We can conclude that the Supreme Court meant what

Cessna says it did only if we assume that the Supreme

Court overlooked a significant fact in Idlewild,

discovered that oversight in Moses H. Cone, and then

misstated what it had done on two later occasions.

Even if we wanted to make such a dubious

assumption, we would be barred from doing so for two

reasons. The first is that we have held even after

Moses H. Cone that the Idlewild “effectively out of

court” doctrine applies to stays in which the other

lawsuit will not decide the issues presented in the

federal case. Stone, 743 F.2d at 1523. We must follow

our Stone precedent until it is clearly overruled by

either this Court sitting en banc or by the Supreme

Court. Main Drug, Inc. v. Aetna U.S. Healthcare, Inc.,

475 F.3d 1228, 1230 (11th Cir. 2007). Even if we were

to conclude that Cessna’s reading of Moses H. Cone

and Quackenbush is a viable one, “we are not at liberty

to disregard binding [circuit] case law that is so closely

on point and has been only weakened, rather than

directly overruled, by the Supreme Court.” Fla. League

of Prof Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462

(Lith Cir. 1996).

37a

The second reason we cannot hold that Moses H.

Cone or Quackenbush implicitly overruled the Idlewild

decision is that the Supreme Court has repeatedly

instructed us that: “If a precedent of this Court has

direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the

Yourt of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas vy.

Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.

Ct. 1917, 1921-22 (1989); accord, e.g., Hohn v. United

States, 524 U.S. 236, 252-53, 118 S. Ct. 1969, 1978

(1998); Agostini v. Felton, 521 U.S. 203, 237, 1175S. Ct.

1997, 2017 (1997).

Where this leaves us is that the “effectively out of

court” exception to the final judgment rule is not

categorically inapplicable where a stay has been

entered in favor of foreign court litigation. Its

application in a particular case depends on the formula

enunciated in Quackenbush: Whether the litigant has

been placed “effectively out of court,” which will

happen when a federal court stays its hand to allow

another court to assume partial jurisdiction over the

merits of the suit. Quackenbush, 517 U.S. at 714, 116

S. Ct. at 1719-20. In making that determination we

must be careful not to breathe new life into the

moribund “death knell” doctrine by permitting an

appeal where the “order sought to be appealed has] no

legal effect on the named plaintiffs ability to proceed

with his individual claim|[s] in federal court.” Moses H.

Cone, 460 U.S. at 10 n.11, 103 S. Ct. at 934 n.11.

Jack King’s appeal fits within the “effectively out of

court” exception to the final judgment rule. He has for

all practical effects been put out of court indefinitely

38a

while litigation whose nature, extent, and duration are

unknown, is pending in Italy. The district court has

held its hand while Italian courts assume or continue

what amounts to jurisdiction over the merits of the

lawsuit. Their decision of Italian law issues will be

followed by the district court. The stay order does have

the legal effect of preventing King from proceeding

with his claims in federal court for an indefinite period

of time, potentially for years. Because he has been

effectively put out of court, we have jurisdiction to

review the order that did put him out.

We do not mean that there are no differences

between federalism and international comity for

purposes of evaluating the merits of a stay order, as

distinguished from deciding whether appellate

jurisdiction exists to review the stay order. As Cessna

has reminded us, we have previously observed that:

“The relationship between the federal courts and the

states (grounded in federalism and the Constitution)

is different from the relationship between federal

courts and foreign nations (grounded in the historical

notion of comity).” Posner v. Essex Ins. Co., 178 F.3d

1209, 1223 (11th Cir. 1999). Those important

differences do not, however, affect the extent to which

a plaintiff is placed “effectively out of court,” which is

the measure that defines our appellate jurisdiction

over stay orders.

IIT.

We turn now to the issue of whether the district

court had subject matter jurisdiction over this lawsuit

based on diversity of citizenship. The plaintiffs argue

that Cessna’s contention that jurisdiction is lacking is

not properly before us because Cessna did not file a

39a

cross-appeal from the district court’s conclusion that it

did have jurisdiction. It is not too unkind to label this

argument frivolous, because “every federal appellate

court has a special obligation to satisfy itself not only

of its own jurisdiction, but also that of the lower courts

in a cause under review.” Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541, 106 S. Ct. 1326, 1331

(1986) (quotation marks omitted); accord Defiance

Water Co. v. City of Defiance, 191 U.S. 184, 194, 24S.

Ct. 63, 67 (1903) (“The fundamental question of

jurisdiction, first, of this court, and then of the court

from which the record comes, presents itself on every

writ of error or appeal, and must be answered by the

court, whether propounded by counsel or not.”);

Anderson v. Watt, 138 U.S. 694, 701, 11S. Ct. 449,

450-51 (1891); see also Fed. R. Civ. P. 12¢h)(3)

(“Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action.”).

Cessna contends here, as it did in the district court,

that the presence of the estate of Jessica King destroys

diversity. Where an estate is a party, the citizenship

that counts for diversity purposes is that of the

decedent, and she is deemed to be a citizen of the state

in which she was domiciled at the time of her death. 28

U.S.C. § 1332(c)(2); Palmer v. Hosp. Auth. of Randolph

County, 22 F.3d 1559, 1562 n.1 (11th Cir. 1994).

Cessna argues that although she was born in

California, Jessica King had severed her ties to her

home state and at the time of her death was domiciled

abroad, specifically in Denmark. If Cessna is correct

that King was domiciled abroad, there is no diversity

of citizenship. A United States citizen with no domicile

in any state of this country is “stateless” and cannot

40a

satisfy the complete diversity requirement when she,

or‘her estate, files an action against a United States

citizen. (Cessna is a Kansas corporation, making it a

citizen ofat least one state.) See Newman-Green, Inc.

v. Alfonzo-Larrain, 490 U.S. 826, 828, 109S. Ct. 2218,

2221 (1989).

Cessna points to substantial evidence that Jessica

King maintained only minimal ties to California after

last residing there in 1990, eleven years before her

death. It also argues that the district court erroneously

placed the burden of proof on Cessna to show a change

in King’s domicile.

King argues that his daughter’s California domicile,

which she acquired at birth, was unaffected by her

subsequent travels, because she never formed the

requisite intent to change that domicile during her

foreign residency. Instead, she resided abroad only as

part of her mobile career in hotel management. Both

parties submitted evidence to the district court

concerning whether Jessica King had changed her

domicile from California, and the court found that she

had not.

The crux of Cessna’s attack on the district court’s

finding is its assertion that the court erred by failing

to apply a presumption that Jessica King was

domiciled in the country in which she resided at the

time of her death. Where, as here, the plaintiff asserts

diversity jurisdiction, he has the burden to prove that

there is diversity. Slaughter v. Toye Bros. Yellow Cab

Co., 359 F.2d 954, 956 (5th Cir. 1996) (“The burden to

show the jurisdictional fact of diversity of citizenship

4la

lis] on the . . . plaintiff.”).’ However, once a plaintiff

shows a former domicile, “the presumption is that it

continues to exist,” and the burden shifts to the

defendant to present evidence that the domicile

changed. Id. at 955 (quoting Stine v. Moore, 213 F.2d

446, 447 (5th Cir. 1954)).

One way for the defendant to satisfy the burden of

producing evidence that the domicile changed is by

showing that the plaintiff resided elsewhere at the

crucial time, which in this case is the time of death. Id.

at 956 (“The presumption, upon which the [plaintiff]

relies, of the continuance of the domicile of origin is

met by the counter-presumption of domicile in the

jurisdiction where the party is a resident at the crucial

time... .”). If the defendant meets this burden, the

plaintiff must come forward with evidence showing

that the relocation was “for some particular purpose,

expected to be only of a temporary nature, or in the

exercise of some particular profession, office, or

calling.” Ennis v. Smith, 55 U.S. (14 How.) 400, 423

(1853). If the plaintiff fails to show that, the place of

residence at the crucial time in the litigation becomes

the domicile. Id.

According to Cessna, in waltzing through these

presumptions the district court tripped over its feet by

requiring that Cessna prove King had changed her

domicile of birth even after it had proven that King

resided abroad at the time of her death. Casting the

‘In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Fleventh Circuit adopted as _ binding

precedent all Fifth Circuit decisions handed down prior to the

close of business on September 30, 1981.

42a

issue as a lega) one would help Cessna escape the

highly deferential clearly erroneous standard that is

applicable to fact findings relating to diversity, see

Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d

1242, 1248 (11th Cir. 2005), because we review de novo

whether the district court applied the correct legal

standard. Rolling Greens MHP, L.P. v. Comcast SCH

Holdings L.L.C., 374 F.3d 1020, 3921 (11th Cir. 2004).

The district court, however, did not trip up on the

law. Instead, the court recognized, in its words, that

there is a “presumption which flows from residency at

the time of death.” It rejected Cessna’s position not

because the company had failed to meet its burden of

production, but because the King plaintiff had

presented convincing evidence that King’s stay abroad

was, again in the court’s words, “temporary or

transitory in nature due to her work and career goals.”

The notion that a citizen of a state does not lose her

domicile when her employer sends her abroad is as old

as the presumption that a plaintiffs foreign residence

is her domicile. In recognizing the presumption on

which Cessna relies, the Supreme Court in 1853

carved out an exception for business travel. Ennis, 55

U.S. (14 How.) at 423. The Court wrote:

But when there is a removal, unless it can be

shown or inferred from circumstances that it

was for some particular purpose, expected to be

only of a temporary nature, or in the exercise of

some particular profession, office, or calling,

[residence elsewhere] does change the domicil.

Id. The district court, in applying the relevant

precedent, did not ignore the presumptive effect of

43a

Jessica King’s residence abroad at the time of her

death; instead, the court found from the evidence that

she was there, in Ennis terms, “in the exercise of some

particular profession,” that profession being hotel

management.

Because the district court committed no legal error

in analyzing the facts related to the diversity issue, we

are left with the question whether its finding that

King traveled pursuant to her career is clearly

erroneous. It is not. Cessna did present substantial

evidence that Jessica King’s ties to California had

grown increasingly attenuated, but the estate

countered with evidence that she had spent her years

abroad slowly building experience with the Marriott

corporation. As the district court carefully laid out in

its findings, Jessica King’s residence in each foreign

country where she had lived was in pursuit of her

career goals. She continued to visit California

regularly while she was residing abroad, and her

parents testified that she intended to return there.

Although King may have left the “when” of her return

open, she had decided the “whether’” of it, and in this

context whether is what matters. District of Columbia

v. Murphy, 314 U.S. 441, 455 n.9, 62 S. Ct. 303, 309

n.9 (1941).

As so often is the case, the evidence gave rise to

conflicting inferences, but that is why we have

factfinders. Acting in its role as factfinder, the district

court resolved the conflicts in favor of the plaintiff and

found, as it properly could, that Jessica King retained

her original domicile in California. In hght of that

finding, there is diversity of citizenship subject matter

jurisdiction.

44a

IV.

Having concluded that both we and the district

court have jurisdiction over this case, we turn to the

question of whether the district court abused its

discretion in staying further proceedings in the King

case. We have repeatedly held that a stay order which

is “immoderate” and involves a “protracted and

indefinite period” of delay is impermissible. Stone, 743

F.2d at 1523-24; see also Trujillo, 221 F.3d at

1264-65; CTI-Container, 685 F.2d at 1288—90; Hines,

531 F.2d at 733-35.

Trujillo is particularly instructive. In that case we

vacated as immoderate a stay pending litigation in the

Bahamas because it “seem|ed] indefinite” and it

appeared that the stay would expire only after the

conclusion of litigation in that foreign forum. Trujillo,

221 F.3d at 1264. This stay, likewise, seems indefinite

and apparently will expire only after the conclusion of

litigation in Italy. The only way in which this stay

materially differs from the one entered in Trujiilo is

that there the district court expressly found that the

litigation already pending in the Bahamas would

“directly relate” to those issues raised before the

federal court. Id. That distinction, however, only helps

King’s argument. Here, we have minimal evidence to

assess the scope of litigation in Italy and no assurance

at al! that the Italian proceedings will directly relate

to the issues in this lawsuit. Although the district

court has asked the parties to submit status reports on

the Italian litigation, Trujillo rejected the idea that

regular reports can save an otherwise indefinite stay.

Vd. at 1264 n.3.

45a

Cessna argues that this stay bears a strong

similarity to an order certifying questions of state law,

a practice this circuit regularly follows. A certified

question, however, immediately triggers a_ state

proceeding on the precise question at issue in the

federal litigation, and we are assured by past

experience that our state court colleagues will act with

reasonable dispatch. By contrast, there is no indication

when, if ever, the Italian litigation will resolve the

claims raised in this case, and whether King will have

a meaningful opportunity to participate in those

proceedings.

For all of these reasons, we will vacate the stay the

district court entered in the King lawsuit and remand

that case for further proceedings consistent with this

opinion.

V.

The final issue before us is whether the district

court abused its discretion in dismissing the actions of

the European plaintiffs on forum non conveniens

grounds. We will not address that issue on the merits

in this appeal, because we think the most prudent

course is to vacate that order and remand for further

consideration in light of our decision vacating the

order staying proceedings in the King case. In

balancing the forum non conveniens factors and

concluding that it should dismiss the foreign plaintiffs,

the district court relied in part on its belief that by

staying the King case and nudging the foreign

plaintiffs towards litigation in a more appropriate

forum it could avoid wasteful and duplicative

litigation.

46a

Because we are vacating the stay order and

recognizing King’s right to proceed in the district

court, one of the considerations that led to the district

court’s ruling in the cases of the European plaintiffs

has changed. If the district court had known it could

not avoid dual proceedings by staying the King case, it

might have dismissed all of the plaintiffs, including

King, or allowed all of the plaintiffs to proceed here, or

perhaps pursued some other avenue. Rather than

speculate as to what, if anything, the court might have

done differently had it known that it could not stay

proceedings in the King case, we will vacate and

remand this entire case to the district court so that it

can decide. In doing so, we neither express nor imply

any view on the correctness of any optiens that the

district court may choose on remand. Our decision in

this appeal is limited to holding that the court had

subject matter jurisdiction based on diversity of

citizenship, that the stay of the King case cannot

stand, and that the district court ought to decide in the

first instance how to proceed from here.

We VACATE the order staying the King case and

the order dismissing the cases of the foreign plaintiffs,

and we REMAND the cases to the district court for

further proceedings consistent with this opinion.

A’‘/a

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 03-20482-CIV-MORENO

(Filed October 21, 2005]

JACK KING, as Personal Representative of the )

Estate of JESSICA KING, et al., )

)

Plaintiff, )

)

VS. )

)

CESSNA AIRCRAFT CO., a Kansas )

corporation,, )

)

Defendant. )

)

ORDER ON FORUM NON CONVENIENS

I. Background

This case stems from a tragic airplane crash at the

Linate airport in Milan, Italy, in 2001. Plaintiffs are

numerous personal representatives of the estates of

those who died as a result of the crash. Defendant

Cessna chartered an aircraft for a demonstration flight

for potential aircraft purchasers. As the Cessna

48a

aircraft taxied for take-off in dense fog, it crossed an

active runway and collided with a departing

commercial aircraft. The collision killed all persons on

board both aircrafts. In sum, 118 people died and four

ground personnel were injured.

With their first complaint, Plaintiffs alleged that

the crash was caused by Defendant’s failure to

properly implement policies and procedures in relation

to the demonstration flight. Plaintiffs’ claims have

since been modified and Plaintiffs now allege that

Defendant is strictly liable for conducting the

ultra-hazardous activity of flying an aircraft in dense

fog, and that Defendant is directly liable for the

negligent hiring and supervision of the chartered flight

crew.

Shortly after Plaintiffs filed their first complaint,

Defendant moved this Court to dismiss the case for

forum non conveniens. This Court denied the motion,

though it was a close case. The Court deferred to the

choice of forum of Jack King, the plaintiff in the first

filed case, because he is a United States citizen. Prior

to that decision, the Court, for the sake of economy and

efficiency consolidated Jack King’s case with those of

the 69 other Plaintiffs, all European citizens.

Following the denial of its motion to dismiss,

Defendant moved for Reconsideration, and the Court

again denied Defendant’s motion without an opinion

and with leave to refile after the King trial.

Since the prior denied motions, the case has

changed. Both parties have modified their claims.

Issues of Italian law which were deemed simple in the

past, have become complicated. The Court, sua sponte,

asked parties to re-brief the Reconsideration of the

49a

Motion to Dismiss based on forum non conveniens, and

oral arguments were heard on October 7, 2005.

Il. Standard of law - Forum Non Conveniens

At its discretion, a court may dismiss a case for

forum non conveniens “when trial in the chosen forum

would establish .. . oppressiveness and vexation to a

defendant ... out of all proportion to plaintiffs

convenience, or when the chosen forum _lis|

inappropriate because of consideration affecting the

court’s own administrative and legal problems.” Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981).

Furthermore, “dismissal will ordinarily be appropriate

where trial in the plaintiffs chosen forum imposes a

heavy burden on the defendant or the court and where

the plaintiff is unable to aver any specific reasons of

convenience supporting its choice.” Id.

In a motion to dismiss for forum non conveniens,

the movant must show that “(1) an adequate

alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the

plaintiffcan reinstate his suit in the alternative forum

without undue inconvenience or prejudice.” Leon v.

Million Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001).

The above factors are balanced with the court looking

at the advantages and the disadvantages of each forum

and with no one factor controlling. See Warter v.

Boston Securities, S.A., 380 F. Supp. 2d 1299, 1306

(S.D. Fla. 2004). When analyzing the private and

public factors, however, the private factors are

considered first. See SME Racks, Inc. v. Sistemas

Mecanicos Para Electronica, $.A., 382 F.3d 1097, 1100

(11th Cir. 2004). lf the private factors are found to be

50a

“equipoise or near equipoise” then the Court will turn

to the public factors to tip the balance. Jd.

Ill. Analysis

A. Deference to Plaintiffs’ Choices of Forum

In a forum non conveniens inquiry, courts show

deference to a plaintiffs choice of forum. See SME

Racks, Inc., 382 F.3d at 1101 (citing Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 508 (1947)). This presumption

for the plaintiffs choice is strongest when the plaintiff

is a United States citizen, resident, or corporation. /d.

In fact, a material injustice must manifest before a

court can deny a United States citizen access to a

United States court. Jd. A foreign plaintiffs choice of

forum, however, is a weaker presumption and receives

far less deference. See Leon v. Millon Air, Inc., 251

F.3d 1305, 1311 (11th Cir. 2001); see also In re Atr

Crash over the Taiwan Strait on May 25, 2002, 331 F.

Supp. 2d 1176, 1190 (C.D. Cal. 2004) (holding that

“because foreign plaintiffs typically have fewer

contacts with the forum,” it is likely “that they have

chosen it for some reason other than convenience”).

In this case, the members of the King family are

the oniy plaintiffs who are United States citizens. All

other plaintiffs are from European’ countries.

Therefore, in the following forum non conveniens

analysis, the King Plaintiffs’ choice of forum will

receive a high level of deference and a presumption of

convenience. All other foreign plaintiffs’ choices,

however, will receive less deference because it is likely

that their choice was made “for some reason other

than convenience.”

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B. An Adequate Forum

The first question the Court must answer is

whether the alternative forum, an Italian court in this

case, is available and adequate. At the time of the

Court’s initial order regarding forum non conveniens,

the parties agreed that Italy provided an available and

adequate forum. Now, however, Plaintiffs dispute the

adequacy of an Italian forum under Defendant’s

version of Italian law.

“An adequate forum need not be a perfect forum;”

however, the forum must afford a satisfactory remedy.

Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283

(11th Cir. 2001); see also Warter, 380 F. Supp. 2d at

1307 (holding that an alternative forum is inadequate

if the remedy it affords is “clearly unsatisfactory” or is

“essentially no remedy at all”). A forum is adequate

even though it provides a remedy that would be

substantially less than the remedy in the United

States. See Sigalas v. Lido Maritime, Inc., 776 F.2d

1512, 1519 (11th Cir. 1985); see also Pain v. United

Technologies Corp., 637 F.2d 775, 794 (D.C. 1980)

(holding that “the comparative amount of recovery

obtainable in two alternative jorums has never been

considered a factor relevant (to the forum non

conveniens inquiry’).

Furthermore, an adequate forum is usually found

when “the defendant is amenable to process” in that

other forum.” Satz, 244 F.3d at 1283. Differences in

law and procedure do not make the forum inadequate.

For example, the ability of a plaintiff to hire an

attorney on a contingency basis in the alternative

forum is not considered. See Margin v. Teledyne

Continental Motors, 91 F.3d 1424, 1430 (11th Cir.

52a

1996) (holding that if the availability of a contingency

fee arrangement was given substantial weight, “then

a case could almost never be dismissed because

contingency fees are not allowed in most forums”). Also

not considered is the fear of delay in foreign courts. See

Satz, 244 F.3d at 1283.

In this case, Defendant is willing to submit to

jurisdiction in Italy and is amenable to process in

Italy. Therefore, Italy provides an adequate forum.

Plaintiffs argue that Defendant’s claim that Italian

law provides no relief to Plaintiffs precludes Defendant

from arguing that Italy is an adequate forum.

Defendant's claim, however, has yet to be decided and,

at any rate, can be decided best by an Italian court.

Italy is an adequate forum. Italian courts have many

times addressed tort liability and damages in airplane

crash cases and many times produced satisfactory

remedies.

C. Private and Public Interest Factors

The Supreme Court has outlined a number of

factors for courts to consider in a forum non conveniens

determination. These factors, however, are not

exhaustive or dispositive and the Court is free to be

flexible in responding to cases as they are presented.

See Sigalas, 776 F.2d at 1519. The private interest

factors include (1) ease of access to sources of proof and

evidence, (2) availability and costs of obtaining willing

and unwilling witnesses, and (3) “all other practical

problems that make the trial of the case easy,

expeditious and inexpensive.” Gilbert, 330 U.S. at 508.

If the private interest factors are at equipvise, the

Court will also consider the following public interest

factors: “(1) the sovereigns’ interests in deciding the

53a

dispute, (2) the administrative burdens posed by trial,

and (3) the need to apply foreign law.” Warter, 380 F.

Supp. 2d at 1314 (quoting Satz, 244 F.3d at 1284).

1. Private Factors

The analysis of private factors begins with the ease

of access to evidence and availability of witnesses. The

Court will first identify the elements of a plaintiffs

causes of action and then determine the location of the

evidence necessary to prove and disprove each

element. The location of much of the evidence in this

case is Italy. Although the Court’s initial order

emphasized the importance of the evidence already

gathered , the depositions already taken, and the crash

reports already translated, the Court failed to mention

Defendant’s need to gather evidence on the tort

element of causation. Defendant disputes causation

based on intervening factors, the evidence of which c

an only come from Italian witnesses, such as

individuals working with air traffic control at the

Linate airport.

Additionally and more importantly, at the time of

the Court’s initial order, the Court assumed that only

one trial on liability for all Plaintiffs would be

necessary. However, it is apparent that the liability

issues differ among Plaintiffs because not all Plaintiffs

have signed the same release form in settling with the

other potentially liable parties in Italy. The damages

will also differ because under Italian law, each

Plaintiff is entitled to only the support which she was

actually receiving from the decedent. As the case now

stands, the lack of commonalities among the Plaintiffs

and the additional effort that would have to be exerted

by the Court to deal with each Plaintiff individually

54a

fall under the “practical problems” factor hsted in

Gilbert. The process will no longer be expeditious and

inexpensive. For example, with regard to the foreign

plaintiffs, most of the discovery has yet to begin and

all evidence necessary to determine liability and

damages is located in Europe. The Court does note,

however, that with regard to the King Plaintiffs, much

if not all of the evidence has already been gathered.

Additionally, the King evidence on damages 1s likely

located in the United States.

A further “practical problem” exists in that some

plaintiffs have already litigated and continue to

litigate a similar suit in Italy concerning the Linate

crash. In its initial order, the Court held that it would

retain jurisdiction of all cases in order to avoid paralle}

htigation in other courts. However, this reason has

been undermined by fact that suits are ongoing on

these issues in the Court of Milan. Additionally,

because Defendant Cessna is willing to submit to

jurisdiction in Italy, the Court of Milan is the only

forum where Plaintiffs will be able to resolve all of

their claims in a single proceeding, which would be the

most expeditious and inexpensive way to resolve the

case.

2. Public Factors

The public factors mentioned by the Supreme Court

include each forum’s interest in hearing the case, the

administrative burdens placed on this Court in

hearing the case, and the need to apply foreign law. In

the Court’s initial order denying the motion to dismiss,

the Court recognized that both the United States and

Italy have strong interests in deterring negligent

conduct. The Court reasoned that the United States

55a

had a greater interest in hearing the case because

Italy had already settled its claims and filed criminal

charges in regard to the Linate crash. Now, however,

the Court has been told that c'aims are ongoing in

Italy. Thus, Italy retains its interest in resolving this

case, especially since the tragic event occurred on

italian land. The Court’s order also noted that this

case may be resolved more quickly in the United

States. This conclusion is no longer certain. Here, the

Court will potentially have to try all 70 Plaintiffs

individually on both the liability and damages issues.’

This prospect places a heavy burden on the Court’s

limited resources and uses United States tax dollars

and juries to try a case that resolves the disputes of

European Plaintiffs in a United States forum.

In addition to these concerns, the public interest

factors include “the need to apply foreign law.”

Memodreno v. Costa Crociere S.P.A., No. 04-16732, slip

op. at 3688 (11th Cir. July 27, 2005). The Eleventh

Circuit has repeatedly held that “the need to resolve

and apply foreign law should ‘point the trial court

towards dismissal.” Sigalas, 776 F.2d at 1519 (quoting

Piper,454 U.S. at 260); see also Proyectos Orchimex de

Costa Rica, S.A. v. E.]. Dupont de Nemours & Co., 896

F. Supp. 1197, 1204 (M.D. Fla.) (“even the possibilty

that foreign law apples to a dispute is sufficient to

warrant dismissal on forum non conveniens grounds’).

' Plaintiffs’ counsel suggests that in airplane crash cases, only a

few “representative” Plaintiffs proceed to trial. furthermore, the

releases signed by the Plaintiffs could be grouped. Thus, it is

highly unlikely that the Court would actually try 70 cases on the

same accident. The Court acknowledges counsel’s experience in

these types of cases, but must still make a ruling that is devoid of

speculations.

56a

Dismissal is warranted so that events occurring on

foreign land are adjudicated by foreign courts,

especially where the foreign court has already

adjudicated similar issues. See Ford, 319 F.3d at 1310;

see also Piper, 454 U.S. at 260 (holding that there is “a

local interest in having localized controversies decided

at home”). Furthermore, the Supreme Court has held

that courts are better off applying the laws with which

they are familiar. See Piper, 454 U.S. at 260; see also

Magnin v. Teledyne Continental Motors, 91 F.3d 1424,

1430 (llth Cir. 1996) (holding that since French

substantive law applied, it would be “far better that

the case be tried in France by one or more jurists” who

are familiar with French law). In Ford, the Eleventh

Circuit explained, “[TJort law is rife with nuances that

are not consistently found throughout all jurisdictions.

Therefore, the foreign country is ordinarily the best

place to litigate a dispute revolving around a foreign

rule of decision.” Ford v. Brown, 319 F.3d 1302, 1310,

n. 24 (11th Cir. 2003).

The nuances of foreign tort law are especially

obvious in this case as the Court and the parties

witnessed at the two-day Italian law hearing. In the

Court’s initial order denying the motion to dismiss, the

Court held that the parties agreed that the Italian

“legal issues [were] fairly simple.” However, this is no

longer the case. At the Italian law hearing, the parties’

Italian law experts interpreted the same Italian codes

and cases in opposing ways. Additionally, now the

Court must potentially decide nine different issues of

Italian law. The numerous Italian law issues that will

need to be decided, and the Italian interest in ongoing

litigation with some Plaintiffs “point the trial court

towards dismissal.”

57a

If this case is dismissed, Plaintiffs will still have

the opportunity to litigate in Italy. At oral argument

Plaintiffs’ counsel made an impassioned plea _ to

consider the plight of the “widows and orphans” who

have been waiting for justice from the airplane crash

four years ago. The court is extremely sympathetic to

anyone who has lost a loved one, even those whw are

not “widows and orphans,” such as the first filed

plaintiff Jack King, the father of the decedent, Jessica

King. Nevertheless, courts in Italy also dispense

justice and, in fact, have done so in this case already.

We in the United States may differ with our friends in

Europe on the amount of compensation due to victims

of accidents, just as we apparently disagree on other

important issues such as welfare, the degree of

government intrusion in private businesses, the death

penalty, et cetera. But just because we believe that our

judicial system is better for us does not automatically

open our courts to resolve these suits brought by 69

Kuropean plaintiffs claiming negligence resulting from

an airplane crash occurring in Italy. The Court, in

exercising its discretion, has balanced the various

public and private interests already discussed.

Therefore it is ordered that the claims of all European

plaintiffs be dismissed so that they may pursue just

compensation before Italy’s courts where the litigation

regarding this accident has been ongoing for years.

Plaintiffs’ counse! are understandably disturbed

that they have relied on this Court’s initial denial of

Defendant’s motion to dismiss. It is true that the Court

should have granted such motion earlier. Yet, a court's

decision not to correct an error just compounds that

error. Requirements that counsel seek redress at the

trial level before arguing error on appeal exist to give

a trial judge the opportunity to correct mistakes made

58a

by the Court. This Court avails itself of such

opportunity, albeit later than it should have. A judge

is bound to follow the law irrespective of any emotional

pleas once that judge has recognized the law despite

his own prior rulings to the contrary.”

As this case now stands, it is clear that the Court of

Milan in Italy would be a more convenient forum for

the Plaintiffs and the Defendants. Further, the Court

recognizes the deference given to United States

Plaintiffs and their choice o° a United States forum.

Foreign plaintiffs, however, receive no such deference.

Therefore, the Court deconsolidates the United States

Plaintiffs (the King family) from the 69 other

Kuropean Plaintiffs. The Court dismisses this case as

to the European Plaintiffs for forum non convenienes.

The King case, however, will remain in the United

States because King is an American plaintiff who has

selected a Florida forum and is thus entitled to a

presumption of his choice of forum

Additionally, the King Plaintiffs’ case is stayed

pending resolution of this case in Italian courts. The

Court is bound to apply Italian law. The reluctance of

the Court in applying Italian law is not due to its

difficulty, but as te the apparent direct conflict in the

experts’ testimony. Because the King case will be

stayed until the Italian courts have resolved the

Italian law disputes as they relate to the 69 other

plaintiffs, this Court will have the benefit of actual

Italian court decisions that are related to this precise

case, and there will not be any conflict in following

* After all, “a foolish consistency is the hobgoblin of small minds.”

(Ralph Waldo Emerson).

59a

Italian law. In fact, the King ‘amily has apparently

litigated a civil suit against other European

defendants in the Court of Milan seeking recovery for

the same injuries that are the subject of this litigation.

At oral argument, counsel for the Plaintiffs were

unable to provide any details of the civil action alleged

to have been prosecuted by -"ack King as claimed by

Defendant in footnvte one, page 5, of the Memorandum

in Support of Further Reconsideration of Cessna’s

Motion to Dismiss for Forum Non Conveniens.

Therefore, the American !-:aintiff who chose to proceed

in an Italian court already, is not prejudiced if his case

in an American court proceeds after the Italian court

decides the same Plaintiffs suit over the same

accident, albeit against other defendants. Staying the

King trial will reduce the costs to both Plaintiffs and

Defendant in litigating the issues of Italian law prior

to disposition of any of the King family members suit

against Cessna.

IV. Conclusion

Based on the foregoing, Defendant’s Motion for

Reconsideration of the Order Denying Motion to

Dismiss is GRANTED IN PART as to the 69 European

Plaintiffs, and DENIED IN PART as to the American

Plaintiffs, the King family. Furthermore, the King case

will be stayed until the Italian courts have resolved

the Italian law disputes as they relate to the other 69

Plaintiffs. This case will thus be removed from the

trial calendar and placed in the civil suspense file. The

parties must report in writing every twelve months on

the progress of the litigation in Italy in order to

reactivate this case after the issues of Italian law have

been decided by Italian courts.

60a

DONE AND ORDERED in Chambers at Miami,

Florida, this 20" day of October, 2005.

/s/

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

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APPENDIX E

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 03-20482-CIV-MORENO

[Filed October 29, 2004]

JACK KING, as Personal Representative of the

Estate of JESSICA KING, ef a/.,

Plaintiff,

vs.

CESSNA AIRCRAFT CO., a Kansas corporation,

Defendant.

ee ee

ORDER DENYING MOTION TO DISMISS

An American Plaintiff, along with many foreign

Plaintiffs, have sued an American Defendant in an

American Court as a result of an aircraft accident

which occurred in Italy. The Defendant moves to

dismiss the complaint alleging that Italy is a more

convenient forum. After weighing the various private

and public interest factors and giving the required

level of deference to the Plaintiffs’ choice of forum, the

Court finds that the Defendant has failed to show that

62a

a material injustice would be manifest if the case were

tried in the United States. Therefore, the Motion to

Dismiss on forum non-conveniens grounds is DENIED.

BACKGROUND

This case arises out of a terrible tragedy which

occurred on a foggy runway in Milan, Italy in the early

morning hours of October 8, 2001. Plaintiffs are

numerous personal representatives of the estates of

those who died as a result of the accident. The

Defendant is a Delaware corporation which

manufacturers and sells aircrafts. Although it

conducts business nationally and worldwide, its

headquarters is in the State of Kansas. It is registered

to do business in Florida and regularly conducts

business in Florida. Most of its business is conducted

in the United States.

On October 8, 2001, the Defendant Cessna

chartered a Cessna aircraft from a former client, Air

Evex, to whom it had recently sold the aircraft.

Defendant Cessna chartered the aircraft so that it

could more conveniently show a prospective purchaser

the benefits of owning a Cessna aircraft. These flights

are known as demonstration flights. The aircraft flew

from Germany to Milan, Italy to pick up a Cessna

sales associate and the prospective buyer. As the small

Cessna aircraft taxied for take-off, it crossed an active

runway. As it did so, it collided with a large

commercial aircraft departing the Milan airport. The

collision killed all persons on board both aircrafts. In

total, 118 people were killed and 4 ground personnel

were injured. The Plaintiffs filed suit in the United

States District Court for the Southern District of

Florida alleging claims of wrongful death and

63a

negligence on the part of Cessna. Plaintiffs allege that

the crash was caused by the Defendant’s failure to

properly implement policies and procedures in relation

to demonstration flights. Defendant Cessna has moved

this Court to dismiss this case on the grounds of forum

non-conveniens.

STANDARD

The burden is on the movant to show that it is

entitled to the relief sought. Defendant seeks to have

the case dismissed under the doctrine of forum non-

conveniens and to have the case decided by an Italian

judge. This is a diversity case and federal forum non-

conveniens law governs diversity cases. Esfeld v. Costa

Crociere, S.P.A., 289 ¥.3d 1300 (11th Cir. 2002). In

deciding whether to dismiss a case on forum non-

conveniens grounds, courts are to examine (1) the

availability of an alternative and adequate forum;

(2) the appropriate deference to be given to the

Plaintiffs’ choice of forum; (3) the private interest

factors, and (4) the public interest factors. Piper

Aircraft Co. V. Reyno, 454 U.S. 235, 257 (1981). In the

end, the Defendant must present “positive evidence of

unusually extreme circumstances” and “thoroughly

convince [this Court] that material injustice is

manifest before ousting a domestic plaintiff from this

Country’s courts”. SME Racks Inc. v. Sistemas

Mecanicos Para Electronica, S.A. ,382 F.3d 1097, 1101-

1102 (llth Cir. 2004) (citing La Seguridad v.

Transytur Line, 707 F.2d 1304, 1308 n.7 (11th Cir.

1983) (emphasis added). The Defendant agreed at oral

argument that this is a high standard, albeit not an

insurmountable one.

64a

SUMMARY OF FACTORS

I. Available and Adequate Forum

The parties agree that Defendant Cessna _ is

amenable to process in Italy and they agree that Italy

is an available forum. Defendant has presented

uncontested evidence that the law and remedies are

substantially the same between the two fora. Thus, the

Court finds that Italy is an adequate and available

alternative forum.

II. Deference

A. Domestic Plaintiff

A “plaintiffs’ choice of forum should rarely be

disturbed ‘unless the balance is strongly in favor of the

defendant.” SME Racks, 382 F.3d at 1101 (quoting

Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947)).

The Eleventh Circuit has repeatedly held that a

domestic plaintiffs choice of forum is entitled to a

strong presumption that the forum is convenient and

the Court is to give a high level of deference to that

choice. Leon v. Miller Atr, Inc., 251 F.3d 13805, 1811

(11th Cir. 2001). Plaintiff Jack King, as representative

of the estate of Jessica King, is a citizen of the United

States and thus deserving of the full deference

normally given to a domestic Plaintiff.

B. Foreign Plaintiffs

Although Jack King is a United States citizen, the

remaining Plaintiffs are European. Plaintiffs argue

that various treaties require the Court to apply the

same level of deference given to a domestic plaintiff.

65a

Defendant argues that the Court is to afford the

foreign Plaintiffs much less deference due to the fact

that they are not citizens of the United States.

The Effect of Treaties

At the hearing, the Plaintiffs’ counsel argued at

length that varieus Friendship, Navigation, and

Commerce treaties should have an equalizing effect on

the Court’s deference standard. He argued that the

“most favored nation” or the “no less favorable

treatment” language found in the treaties means that

a foreign plaintiff is entitled to the same deference as

a domestic plaintiff. At oral argument Plaintiffs’

counsel, rather than answering the Court’s questions,

proceeded to repeat. what he had written in his four

page written response. The Court was not persuaded

by the written response, much less by the evasive oral

presentation.

Counsel] relies heavily on Second Circuit opinions,

which do not directly analyze why a treaty should

affect the level of deference to be applied during the

forum non-conveniens doctrine analysis.’ See

Farmanfarmaian v. Gulf Oil Co., 588 F.2d 880 (2nd

Cir. 1978); . Alcoa Steamship Co., Inc., v. M/V Nordic

Regent, 654 F.2d 147 (2nd Cir. 1980) (en bane); Trish

National Insurance Co. Ltd., v. AER Lingus Teoranta,

739 F.2d 90 (2nd Cir. 1984); Blanco v. Banco

Industrial de Venezuela, S.A., 997 F.2d 974 (2nd Cir.

' See Allen Jay Stevenson, Comment, Forum Non-Conveniens and

Equal Access Under Friendship, Commerce, and Navigation

Treaties: A Foreign Plaintiff's Rights, 13 HASTINGS INT’L & COMP.

L. REV. 267 (citing a history of the opinions but not providing an

analysis of the impact on the forum non-conventens doctrine)

66a

1993); lragorri v. United Technologies Corp., 274 F.3d

65 (2nd Cir. 2001) and Pollux Holding Ltd., v. Chase

Manhatten Bank, 329 F.3d 64, 72-73 (2nd Cir. 2003).

All of these opinions refer to the earlier Second

Circuit’s opinion in Farmanfarmaian and, although

the court in that case mentioned the treaty with Iran,

the court also stated that the issue was not outcome

determinative, and thus it is dicta. Farmanfarmaian,

588 F.2d at 882. This Court is not bound to follow

Second Circuit dicta and nothing suggested by

Plaintiffs counsel at oral argument has assisted the

Court in reaching the conclusion sought by the

Plaintiffs on this issue.

The Second Circuit opinions demonstrate that

using the language ofa treaty to determine the level of

deference which should be afforded to a foreign

plaintiff's choice of forum would be unworkable. Were

this Court to adopt counsel’s position, courts would be

routinely forced to interpret the language of many

different treaties. See Murray v. British Broadcasting

Corp., 81 F.3d 287 (2nd Cir. 1996) and Pollux, 329 F.3d

at 72-73 (2nd Cir. 2003). The Second Circuit has even

gone as far as examining the legislative history of such

treaties. Jd at 291. Such legislative history and intent

of treaties are far removed from the analysis required

in order to decide the motion to dismiss on forum non-

conveniens grounds.

The Eleventh Circuit, sitting en banc, has

compared “the court’s inherent power to protect the

integrity of its process through forum non-conveniens”

to a “court’s inherent power to punish contempt.” See

Sibaja v. Dow Chemical, Co., 757 F.2d 1215, 1218

(llth Cir. 1985). Allowing a treaty, including its

legislative history, to have such an arbitrary impact on

67a

the courts’ inherent powers is another reason not to

adopt counsel’s position.

The history and principles underlying the doctrine

of forum non-conveniens also support. this Court's

decision not to adopt counsel’s position regarding

treaties. The forum non-conveniens doctrine, although

originating in Scotland, became part of the common

law of many states and federal admirality law. Piper,

454 U.S. at 248 n.13. The doctrine is based on

principles of fairness and justice; the same principles

incorporated into the due process clause. The law is

clear that a treaty stands on the same footing as law

created by Congress. But a treaty does not stand on

the same footing as Constitutional principles.

Plaintiffs’ counsel argues that an “access to courts’

clause found in an treaty modifies the law on forum

non-conveniens. This Court, however, joins the courts

which have held that treaties have no effect on the

forum non-conveniens analysis. See Morales v. Ford

Motor Co., 313 F.Supp.2d 672 (S.D. Tex. 2004);

Dominguez-Cota v. Cooper Tire & Rubber Co., 284

F Supp.2d 444, 4650 (N.D. Miss. 2003) and Zermeno v.

McDonnell Douglas Corp., 246 F.Supp2d 646, 661-62

(S.D. Tex. 2003).

Furthermore, there are some Plaintiffs from

Sweden. The Plaintiffs have been unable to locate any

treaty between Sweden and the United States.

Adopting Plaintiffs’ argument would result in three

different classes of Plaintiffs. This provides an

additional reason to reject Plaintiffs’ position.

Plaintiffs’ counsel asks the Court to apply the same

analysis to the Swedish Plaintiffs because these “these

types of treaties are difficult to track down...”

68a

Difficulties in locating these documents is not a basis

to institute a rule of law.

Level of Deference

The Eleventh Circuit has held that a foreign

plaintiffs choice of forum is deserving of less

deference. Leon, 251 F.3d 1311. Defendant argues that

this equates to little deference. However, the Eleventh

Circuit has also ruled that “nationality of the parties

is relevant only insofar as it relates to convenience and

fairness of the forum.” La Seguridad, 707 F.2d at 1308.

Here, nationality is just one factor to be examined in

determining the level of deference to be given to a

plaintiff's choice of forum.

When a domestic plaintiff is joined with a foreign

plaintiff, as here, the Court has basically three options.

First, it can adopt Defendant's suggestion, effectively

ignoring the deference to be given to the domestic

plaintiffs choice of forum, and then dismiss the entire

case. Second, it can apply a strong presumption to the

domestic plaintiffs case but not to the foreign

plaintiffs’ case and then dismiss the foreign plaintiffs’

cases while retaining the domestic plaintiffs case. This

second alternative would result in the two cases

proceeding in different jurisdictions, all in the name of

convenience itself! The third option is to allow foreign

plaintiffs to bring these claims in the United States

based on the fact that there is also a United States

Plainuff and a United States Defendant. This third

alternative is the more reasonable approach.

69a

Ill. Private Interest Factors

As a court examines the private interest factors it

must keep in mind that no single factor is controlling

and should look at “all other practical problems that

make trial of a case easy, expeditious and

inexpensive.” Satz, 244 F.3d at 1283 (quoting Republic

of Panama, 119 F.3d at 952 (quoting Gulf Oil uv.

Gilbert, 330 U.S. 501, 508)). The private factors are

generally considered more important than the public

factors, but both should be considered in every case.

See Leon, 251 F.3d at 1311 (citing Satz v. McDonnell

Douglas Corp., 244 F.3d 1279, 1283-84 (llth Cir.

2001). If the private factors are “at or near equipoise”

the Court is to look to sce if the public factors tip the

scales in the Defendant’s favor. SME Racks, 382 F.3d

1097. The Court must give a high level of deference to

the Plaintiffs choice of forum and the Defendant

carries the heavy burden of showing that a material

injustice is manifest.

Defendant relies heavily on Satz to support its

motion to dismiss. Satz v. McDonnell Douglas Corp.,

244 F.3d 1279. Defense counsel argued well at the

hearing that in Satz both the defendant and the

plaintiff were citizens of the United States.’

Nevertheless, nationality is not dispositive of the level

of deference issue as the undersigned judge well knows

since he was recently reversed in SME Racks. SME

Racks, 382 F.3d 1097. The rest of the Satz opinion

dealt on whether an alternative forum was available

and adequate, an issue not in dispute here.

*The Eleventh Circuit found that the location of the evidence to

be a controlling factor in that case.

70a

SME Racks is most helpful to the forum non-

conventens analysis. In reversing this Court’s adoption

of the magistrate’s report and recommendation, the

Eleventh Circuit held that a court must apply the

presumption during its analysis of the private interest

factors and must take into account the public interest

when those factors are “at or near equipoise.” See SME

Racks, 382 F.3d at 1102. A court must also specifically

weigh the relative advantages and disadvantages of

each forum as it examines the private interest factors

and consider them consistently with the presumption

in favor of plaintiff's choice of forum. SME Racks, 382

F.3d at 1103. These decisions demonstrate that the

analysis is ‘fact intensive and no one factor ts

controlling, including whether the party is a citizen of

the United States.

Private Interest Factors Favoring Retention

1. Evidence Gathered to Date

There are two reports on the incident which deal

with the causes of the crash, one created by the Italian

government and one created by Defendant Cessna.

These have already been translated into English.

Numerous depositions have already been conducted by

the parties. Although not focused on the damages

aspect, the depositions have touched upon lability

because they are inextricably intertwined with the

forum non-conveniens issues. The Court must also

consider the considerable amount of time and money

expended by the parties in taking these depositions,

which, according to counsel’s representations at oral

argument, will not be helpful in Italy because

discovery is apparently not allowed in that country.

Tila

2. The Omission of Acts in the United States

The Defendant argues that the case has no contacts

with the United States because the collision occurred

in Italy. Yet, the Plaintiffs’ theory of liability is based

on a failure to implement “demonstration flight”

policies from the Defendant’s headquarters in the

United States. Plaintiffs claim that there was a

breach, continuous in nature, which eventually

resulted in an accident in Italy. It is much like a

design defect in the package of services which are

provided by Cessna. Most of this evidence will be in

the English language, ‘which would need to be

translated if the case were to be tried in Italy. This

would mean additional costs if the case were dismissed

in the United States and to be tried in Italy.

Defendant continually refers to the fact that the

wreckage is located in Italy but does not state the

relevance of such factor. As mentioned above, reports

exist that have already been prepared in which the

investigators have explained the tragedy in

painstaking detail. No evidence has been presented

indicating that an Italian judge wil! visit the crash site

or examine the four year old wreckage. The real issue

is whether resolution of Plaintiffs’ claims involves

gathering evidence in Italy. It does not.

3. Cost of Obtaining Attendance of Willing Witnesses

There are only two witnesses living abroad who are

likely to be witnesses and who were involved in the

chartering of the flight and they are agents of the

Defendant. The rest of the witnesses, who are also

Defendant’s employees live and work in the United

States. These employees allegedly are in charge of

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creating and implementing policies related to flight

safety. Trying the case in Italy is no more convenient,

even if Defendant is ready to bare those costs.

4. Defendant’s Home Forum

As the Eleventh Circuit has made clear, courts are

not limited to the typical factors but instead should

look at any factors which reasonably bare on the

fairness of having the case heard in either forum. Just

as a foreign plaintiffs choice might be considered less

reasonable or inconvenient, the same holds true for a

domestic Defendant. Although the Defendant is not

entitled to any presumption, it is reasonable to

consider the Defendant’s nationality during the forum

analysis. The Court has considered it, although it has

not given it great weight.

Private Interest Factors Favoring Dismissal

Contribution by Other Defendants

Defendant continues to focus on the poss:bility of

other likely defendants to share in any liability verdict

and to contribute financially to any possible damage

amount. Defendant’s argument relating to potential]

liability of these other defendants boils down to the

effect of certain releases. The Court can rule on the

impact of those releases without including other

defendants, over which it has no jurisdiction. In any

event, the Defendant has not made any significant

showing that third party defendants are necessary.

Therefore, these private interest factors also weigh

in favor of Plaintiffs’ choice of forum.

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IV. Public Interest Factors

The Court must consider public interest factors as

well, especially if the private interest factors are “at or

near equipoise.”

Public Interest Factors Favoring Retention

1. Court Congestion

Defendant and Plaintiffs’ experts agree that

resolution of the case in Italy will take between three

to five years. The transfer of this case to Italy will

apparently burden an already overtaxed system,

resulting in undue delay. At the present time, this

Court’s docket will allow for sooner disposition of the

case because much of the discovery has been

completed.

2. Federal Interest

The Eleventh Circuit has held that there are

factors supporting a finding that there is a strong

federal interest. See SME Racks, 382 F.3d 1104. There

is a strong federal interest in ensuring that a domestic

plaintiff have a place to bring suit. Jd. “Relevant public

interest factor includes the sovereigns’ interest in

deciding the dispute.” Republic of Panama, v. BCCI

Holdings (Luxembourg) S.A., 119 F.3d 935, 953 (11th

Cir. 1997). There is a strong federal interest in

deterring negligent conduct by an American company

operating nationally.

Defendant is a United States company and ninety

percent of its business is conducted in the United

States. Although this is not a products lability case,

T4a

the Defendant manufactures the aircraft in the United

States and its parent company, Boeing, is located in

the United States. Plaintiff King is a citizen of the

United States.

Florida also has an interest in this case. The

Defendant does much business here and is licensed in

this state. Although the crash did occur in Italy, the

Italian government has already settled its claims and

has even charged numerous persons criminally.

Defendant admits that it does very little business in

Italy. In fact, it concedes that such flights are

“anomalies.”

Therefore, the Court finds strong federal and state

interests in trying the case in the United States.

Public Interest Factors Favoring Dismissal

Application of Foreign Law

The parties agree that Italian law controls the case

but that the legal issues are fairly simple. There are a

few legal issues related to the effect of certain releases

found in other settlement agreements entered into by

the Plaintiffs. The Plaintiffs argue that the releases

entered into by the other European actors act as a bar

to any contribution sought by the Defendant. The

Defendant believes that these other releases also act

to release Defendant Cessna from liability. Courts are

charged with contract interpretation and this Court

has been obligated to interpret foreign law in the past

in other cases, and with counsel’s assistance will

assume such obligations again. The foreign law factor

alone is simply not enough to overcome the level of

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deference given to Plaintiffs’ choice of forum. See SME

Racks, 382 F.3d at 1104.

Finally, the Defendant argues that it is not lable.

If true, a sooner disposition, for example, at the

summary judgment stage, would benefit the

Defendant. That apparently is more likely to occur

sooner here than in Italy.

CONCLUSION

The Defendant has failed to show that a material

injustice would be manifest if the case were tried in

the Untied States. The Court must defer to the

Plaintiffs’ choice forum.

WHEREFORE the Defendant’s Motion to Dismiss

on Forum Non-Conveniens Grounds (D.E. No. 39) is

DENIED.

DONE AND ORDERED in Chambers at Miami,

Florida, this 29" day of October, 2004.

/s/

FEDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

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APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-11033-CC

[Filed May 22, 2009]

JACK KING, as personal representative of

the Estate of Jessica King, deceased,

Plaintiff

Cross-Appellee,

BARBARA BREGA,

ANETTE FORSMAN, individually and/or

as personal representative and/or as the

Person legally authorized under applicable

law to bring this wrongful death case for

herself, all potential beneficiaries and/or

The Estate of Robin Forsman, deceased, et al.,

Plaintiffs-Appellants,

versuS

CESSNA AIRCRAFT CO.,

a Kansas corporation,

Defendant-Appellee

Cross-Appellant

meee eee ee”

On Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before: DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ .

UNITED STATES CIRCUIT JUDGE