Introduction
Readers may recall the report in the February 2011 Bulletin on the ruling by Judge Charles Breyer dismissing claims arising from the 2009 crash of Air France flight 447 on the basis that the US District Court was forum non conveniens (FNC). Subsequently, in a bid to circumvent this decision, some of those plaintiffs re-filed suit (the Dardengo and Guennoon actions) against the US manufacturers only, omitting all French defendants. The previously dismissed plaintiffs additionally sought reconsideration of the original decision on the grounds that, if the Dardengo and Guennoon actions were to proceed in the US, so too should the original suits, albeit with the French defendants removed.
Thus the matter was put before Judge Breyer for a second time on 3 June 2011 for hearing of the US manufacturing defendants' motion to dismiss the Dardengo and Guennoon actions under the FNC doctrine and the plaintiffs' motion for reconsideration. In granting the dismissal and denying the reconsideration, Judge Breyer concluded that the US is not the proper forum in the context of this case, once again demonstrating that FNC can be a potent defensive weapon in multi-jurisdictional aviation litigation.
The ruling
Judge Breyer agreed with the defendants' submission that the plaintiffs themselves created the jurisdictional uncertainty complained of, and could therefore not rely on that uncertainty to defeat the dismissal motion. Furthermore, in the alternative, dismissal under FNC would be appropriate because France still presents an available forum. The decision was based on the following line of reasoning:
The plaintiffs cannot make France unavailable by artificially declining to name French defendants
In the 2009 case In re Compania Naviera Joanna S.A. it was stated that '[a] party should not be allowed to assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct'. In the AF447 case, the plaintiffs re-filed suits that omitted the French Defendants despite the fact that they had previously alleged them to be liable, and still seemed to hold them at least partially responsible. Furthermore, the court in Castillo v Shipping Corp. of India noted that '[i]t would be a strange world if a litigant could "bootstrap" himself into a [United States] court...' by purposefully defeating the availability of a foreign forum. Moreover, in both In re Compania Naviera Joanna S.A. and Castillo the foreign fora were no longer open as the statutes of limitation had run, whereas there is a stronger case for FNC in this instance as France is still available (see below).
The plaintiffs cannot re-file in the US with the purpose of defeating a prior FNC dismissal
Of the 30 plaintiffs in the Dardengo and Guennoon actions, 18 were subject to the original FNC dismissal order. A further seven had filed cases naming French defendants by the time of the first FNC dismissal order and so would have been subject to the order once their actions were consolidated into the multi district litigation. Crucially, there was absent a meaningful change in facts regarding liability to justify the change in parties. The plaintiffs should therefore have litigated in the foreign forum in good faith and not contrived to defeat its jurisdiction.
France remains an available forum
Although a French court would not hear the Dardengo and Guennoon actions as pleaded, "availability" turns on the existence of a remedy rather than a plaintiff's ability to bring the exact same action filed in the US in the foreign forum. Indeed, in Lueck, '[t]he district court was not required to ask whether plaintiffs could bring this lawsuit in New Zealand, but rather, whether New Zealand offers a remedy for their losses'. The plaintiffs here would undoubtedly have a remedy in France, including against the US manufacturing defendants. They could either have re-filed the dismissed actions in France or filed the Dardengo and Guennoon actions there and added one or more French defendants. Requiring the plaintiffs to name the additional parties could hardly be considered onerous given that they previously identified them in the same matter.
A French court would not sua sponte dismiss the Dardengo and Guennoon actions
The issue of sua sponte dismissal (dismissal by a court of its own motion) was crucial because the defendants had agreed to submit to French jurisdiction and the plaintiffs would be obliged, under US law as a condition of an FNC dismissal, not to contest French jurisdiction. However, given consideration of Article 92 of the French Code of Civil Procedure and the plaintiffs' lack of convincing authority that a French appellate court would sua sponte dismiss the Dardengo and Guennoon actions, France is confirmed as an available forum.
Private and public interest factors
In Judge Breyer's prior ruling, the private and public interest factors were held to favour dismissal. The Plaintiffs acknowledged that none of the changes to their current suit affected this. Moreover, since that first ruling further physical evidence had been discovered and was held in France where it was thus more easily accessible.
Conclusion
This bid to manipulate artificially the potential availability of multiple fora in international disputes has been rejected. For a second time in the context of the Air France litigation, Judge Breyer has allowed an FNC motion to thwart 'forum shopping' in the US. The decision has been appealed.
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