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California Court of Appeal Affirms Forum Non Conveniens Stay for Idaho Helicopter Crash, Clarifies Procedure for Raising Forum Non Conveniens Defense

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California Court of Appeal Affirms Forum Non Conveniens Stay for Idaho Helicopter Crash, Clarifies Procedure for Raising Forum Non Conveniens Defense JULY 30, 2007 California Court of Appeal affirms forum non conveniens stay for Idaho helicopter crash, clarifies procedure for raising forum non conveniens defense In a recent opinion, Britton v. Dallas Airmotive, Inc. (Cal. App. - 1st Dist. [Div. 5], July 7, 2007) 2007 WL 1990140, the First District of the California Court of Appeal affirmed a stay of litigation on forum non conveniens grounds pending re-filing in Idaho.1 The Court confirmed that, absent unreasonable delay or other prejudice to the parties, a defendant may properly bring a forum non conveniens motion pursuant to California Code of Civil Procedure § 410.30 even after making a general appearance in the action. The Court also confirmed that a trial court has authority to raise the forum non conveniens issue on its own motion under the same Code section. The opinion is significant for affirming that the forum non conveniens defense often requires discovery and the parties’ participation in suit before it is ripe for review. Britton involved the crash of an Aerospatiale AS350D helicopter near Webb, Idaho in August of 2003. Plaintiff John Britton was piloting the helicopter during a firefighting operation pursuant to a contract with the Idaho Department of Lands when the engine allegedly failed, resulting in a hard landing which injured Britton and damaged the helicopter. Plaintiffs include Mr. Britton, his wife, and the helicopter owner/operator, Silverhawk Aviation. Both plaintiffs as well as Silverhawk are Idaho residents and nearly all other percipient witnesses are also located in Idaho. Plaintiffs brought suit in Alameda Superior Court, California, in December of 2004 against Rolls Royce Engine Services Oakland, Inc., which had serviced the engine in 1993; Dallas Airmotive, Inc., which allegedly serviced the engine in 1998; and Rolls Royce Corporation which, through a predecessor, manufactured the engine. Other than defendant Rolls Royce Engine Services Oakland, Inc. (“RRES”), no other party has any substantial connection to California. In January of 2005, RRES moved under CCP §§ 418.10 and 410.30 to stay or dismiss the action on the ground of forum non conveniens. Defendants Dallas Airmotive and Rolls Royce both filed joinders to this motion. The trial court concluded, however, that RRES had not met its burden of introducing sufficient evidence of relevant Idaho contacts pursuant to the “public and private” forum non conveniens factors outlined and applied in Stangvik v. Shiley Inc. (1991) 54 Cal. 3d 744. 1 Defendant Dallas Airmotive, Inc. was represented on appeal by Ray Mariani and Paul Stinson of Nixon Peabody’s Aviation Group. Accordingly, the trial court denied the motion without prejudice in the expectation that it would reconsider its ruling should further or different facts come to light through discovery. Plaintiffs later named as an additional defendant Rocky Mountain Holdings, LLC, which also has no substantial connection to California. Thereafter, discovery revealed that RRES’s only involvement with the accident engine was the 1993 service, which did not involve any components possibly implicated in the engine failure. Accordingly, the trial court granted RRES’s unopposed motion for summary judgment in February of 2006. Within weeks of RRES’s dismissal, Dallas Airmotive renewed the forum non conveniens motion, noting that no California party remained in the case and expanding upon the Idaho contacts and witnesses that had been confirmed through discovery. The Alameda Superior Court granted the motion to stay, holding that a weighing of the public and private interest factors “heavily favors an Idaho forum over a California forum.” In so doing the court made clear that it was exercising both its “authority to reconsider Defendant’s prior joinder in the Motion to Dismiss of a now-dismissed defendant, and its power under CCP § 410.30 to consider the convenience of a forum on its own motion.” Plaintiffs appealed, contending that the renewed forum non conveniens motion was untimely, that defendants had “waived” their forum non conveniens defense by answering the complaint, and that the court had no discretion to consider the matter on its own motion. In the published portion of its opinion, the Court of Appeal rejected all of plaintiffs’ procedural arguments. It also affirmed the trial court’s weighing of the public and private Stangvik factors and its stay of the action in favor of an Idaho forum. The first of the two relevant procedural statutes, CCP § 418.10(a)(2), provides that “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . [t]o stay or dismiss the action on the ground of inconvenient forum.” Section 418.10(e)(3) further provides that “[f]ailure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver . .” The second relevant statute, section 410.30 provides: “(a) When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just. (b) The provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance.” Plaintiffs first argued that defendants had waived their forum non conveniens defense under section 418.10(e)(3) because they had answered the complaint and participated in the action. However, the Court rejected this argument on two bases. First, Dallas Airmotive had filed a forum non conveniens motion before appearing by joining in the motion filed by RRES. Second, and more significantly, the Court noted that CCP § 418.10(e)(2) provides that a defendant waives its forum non conveniens defense only by failing to include it in a “demurrer or motion to strike,” neither of which Dallas Airmotive ever filed. Britton, 2007 WL 1990140, at *3. Accordingly, even if defendants had not filed a joinder in the original motion, they were still free, absent unreasonable delay, to raise the defense after answering. Id. at *3-4. Moreover, the Court rejected plaintiffs’ argument that the trial court could not consider the forum non conveniens issue on its own motion due to defendants’ alleged “waiver.” By its terms, section 2 410.30 clearly authorizes a trial court to raise the forum non conveniens issue at any time. Indeed, section 410.30(a) states that a trial court “shall” stay or dismiss the action if it finds that “in the interest of substantial justice an action should be heard in a forum outside this state.” Id. at *2-3. As the Court explained, plaintiffs’ interpretation would lead to absurd results because “to retain a case for the entire duration of the litigation because the lack of connection to California was unclear at the outset would impair the state’s interest in avoiding burdening courts and potential jurors with litigation in which the local community has little concern.” Id. at *4. In sum, the Court construed sections 418.10 and 410.30 “in harmony.” Read together, they provide that where a defendant has not appeared, section 418.10 applies and specifies the procedure for bringing a forum non conveniens motion. Section 410.30 applies after a defendant has appeared. So understood, section 418.10 provides special procedures for pre-answer forum non conveniens motions2, but such motions are not precluded after a defendant has appeared. This is a reasonable rule because it may be necessary to conduct discovery to develop the factual underpinnings of a forum non conveniens motion. (See, e.g., Morris v. Agfa Corp. (2006) 144 Cal. App. 4th 1452, 1462.) Id. Finally, the Court rejected plaintiffs’ contentions that section 418.10 and 410.30 were “unclear,” thus necessitating reference to legislative history. Id. at *2-3. The Court then went on, in the unpublished portion of its opinion, to hold that the trial court did not abuse its discretion in determining that the Stangvik factors favored re-filing in an Idaho forum. Id. at *4-7. The Britton opinion provides explicit authority for the previously implicit notion that a forum non conveniens motion may not always be self-evident simply from the face of a complaint. It confirms that a defendant – and the court itself – may need to raise the defense after answers have been filed and the action has proceeded in discovery for some period of time. Nevertheless, litigants who contemplate raising a forum non conveniens defense should still keep in mind the procedural requirements of section 418.10 and the Britton Court’s reminder that any delay in raising the issue will be taken into account in determining whether to grant the motion. 2 “For example, filing of a motion under section 418.10 extends the defendant’s time to plead until 15 days after notice of entry of an order denying the motion, and a defendant may petition for a writ of mandate if the trial court denies the motion.” Id. at *4 n. 4, citing CCP § 418.10(b), (c). 3 Albany, NY 30 South Pearl Street 518-427-2650 Boston, MA Products Liability Group 100 Summer Street Please feel free to call or e-mail any of the Products Liability 617-345-1000 Group members listed below ([email protected]) Buffalo, NY 40 Fountain Plaza, Suite 500 NEW YORK 716-853-8100 Joseph Ortego (Group Leader) jortego 516-832-7564 Laurie Bloom lbloom 716-853-8102 Chicago, IL Santo Borruso sborruso 516-832-7506 161 North Clark Street
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