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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

Y | eiLeo
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:

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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

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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

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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-

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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

15a

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.”

5la

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0829%3A1. Public record. Not legal advice.