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In re Air Crash over the Southern Indian Ocean on March 8, 2014, 946 F.3d 607 (2020) Prod.Liab.Rep. (CCH) P 20,797

[2] balance of factors favored trying cases in Malaysia. KeyCite Blue Flag – Appeal Notification Petition for Certiorari Docketed by THOMAS WOOD, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP Affirmed. TALMADGE WOOD v. THE BOEING CO., U.S., July 30, 2020 946 F.3d 607 Procedural Posture(s): On Appeal; Motion to Dismiss for United States Court of Appeals, Forum Non Conveniens. District of Columbia Circuit.

IN RE: AIR CRASH OVER THE SOUTHERN West Headnotes (19) INDIAN OCEAN ON MARCH 8, 2014, Elizabeth Smith, as Personal Representative [1] Federal Courts Public and private of the Spouses, Next of Kin, Other Statutory interests; balancing interests Beneficiaries, and the Estates of the Federal Courts Availability and adequacy MH370 Passengers (See Complaint for Statutory Beneficiaries), et al., Appellants Federal Courts Presumptions and burden of proof v. Malaysia Airlines Berhad, doing business A party seeking dismissal for forum non conveniens bears the burden of showing both (1) as Malaysia Airlines, et al., Appellees that an adequate alternative forum is available to No. 18-7193 Consolidated with hear the dispute, and (2) if so, that the balance 18-7195, 18-7196, 18-7197, 18-7198 of certain public and private interest factors | strongly counsels in favor of trying the dispute in Argued November 25, 2019 the alternative forum. | Decided January 10, 2020 [2] Federal Courts Discretion in general Synopsis The forum non conveniens determination is Background: Following unexplained disappearance of committed to the sound discretion of the trial Malaysia Airlines flight somewhere over southern Indian court. Ocean, representatives or beneficiaries of passengers, all of whom were presumed deceased, filed lawsuits asserting Montreal Convention claims against Malaysia's current and prior national airlines and their insurers, and asserting state [3] Federal Courts Forum non conveniens law products liability and wrongful death claims against Under the forum non conveniens doctrine, so manufacturer of aircraft in Washington. After lawsuits long as the district court has considered all were centralized into multidistrict litigation for pretrial relevant public and private interest factors, and purposes, the United States District Court for the District its balancing of these factors is reasonable, Court of Columbia (No. 1:16-mc-01184), Ketanji Brown Jackson, of Appeals must afford that decision substantial J., 352 F.Supp.3d 19, granted defendants' joint motion for deference and will overturn only if the district dismissal under doctrine of forum non conveniens. Plaintiffs court has committed a clear abuse of discretion. appealed.

[4] Federal Courts Availability and adequacy Holdings: The Court of Appeals, Rao, Circuit Judge, held Malaysia was adequate available forum for that: Montreal Convention claims against current and former Malaysian national airlines and [1] Malaysia was adequate available forum, and their insurers and Washington law products liability and wrongful death claims against

Washington aircraft manufacturer, asserted on Ocean forfeited argument that his difficulty in behalf of passengers on Malaysian Airlines flight securing counsel of his choice in Malaysia cast that disappeared over southern Indian Ocean; doubt on whether Malaysia constituted adequate although Malaysia enacted statute transferring alternative forum for his Montreal Convention all assets of prior national airline to current claims against current and former Malaysian national airline without deeming it as successor, national airlines and their insurers and for his Montreal Convention claims appeared to be Washington law tort claims against Washington covered by insurance policy, and United States aircraft manufacturer, where representative forum would not provide any greater likelihood failed to raise argument in proceedings below. of redress even if Malaysian statute rendered national airline judgment proof. [9] Federal Courts Public and private interests; balancing interests [5] Federal Courts Matters of Substance Under the forum non conveniens doctrine, On appeal of grant of motion to dismiss for forum the relevant public interest factors include the non conveniens, representatives of passengers administrative difficulties when litigation is piled on Malaysian Airlines flight that disappeared up in congested centers, the local interest in over southern Indian Ocean forfeited argument having localized controversies decided at home, that Malaysian law would provide insignificant and the desire to avoid requiring a court to damages for their Washington law tort claims untangle problems in conflict of laws and in law against Washington aircraft manufacturer, so foreign to itself. that forcing them to try claims in Malaysia allegedly would obliterate any real likelihood of trial, where representatives failed to raise before [10] Federal Courts Public and private district court any challenge to adequacy of tort interests; balancing interests damages under Malaysian law. Under the forum non conveniens doctrine, the private interest analysis focuses on the relative ease of access to sources of proof, the costs [6] Federal Courts Availability and adequacy and procedural mechanisms required to secure In the context of a forum non conveniens inquiry, the attendance of witnesses, and all other a foreign forum is not inadequate merely because practical problems that make trial of a case easy, it has less favorable substantive law. expeditious, and inexpensive.

[7] Federal Courts Availability and adequacy [11] Federal Courts Public and private On a motion to dismiss for forum non interests; balancing interests conveniens, where it appears undisputed that an Balance of public and private interest factors alternative forum would provide a plaintiff at weighed in favor of trial in Malaysia for least some remedy, a district court acts within Montreal Convention claims against current and its discretion in deeming that forum an adequate former Malaysian national airlines and their alternative to a United States court. insurers and Washington law products liability and wrongful death claims against Washington aircraft manufacturer on behalf of passengers [8] Federal Courts Matters of Substance on Malaysian Airlines flight that disappeared over southern Indian Ocean; Malaysia's public On appeal of grant of motion to dismiss interest in hearing claims far outweighed that for forum non conveniens, representative of of United States, and private interest factors United States passenger on Malaysian Airlines tilted strongly in favor of Malaysia due to flight that disappeared over southern Indian

overwhelming amount of evidence and witnesses in Malaysia and potentially insurmountable [17] Federal Courts Parties' choice of forum; challenges in making that evidence available in forum-shopping United States court. In granting dismissal under forum non conveniens doctrine, district court's reasoning was appropriate as to levels of deference [12] Federal Courts Parties' choice of forum; afforded to representatives of passengers on forum-shopping Malaysian Airlines flight that disappeared, for their Montreal Convention claims against current The starting point for the forum non conveniens and former Malaysian national airlines and their analysis is a strong presumption in favor of a insurers and for their Washington law tort claims plaintiff’s chosen forum. against Washington aircraft manufacturer; court carefully considered foreign representatives' interests in trying cases in United States and [13] Federal Courts Parties' choice of forum; thoughtfully balanced their public and private forum-shopping interests, and court correctly recognized that On a motion to dismiss for forum non United States citizen representing United States conveniens, the precise degree of deference decedent was entitled to greatest deference. afforded a plaintiff’s forum choice varies depending on the plaintiff’s connection to the forum. [18] Federal Courts Forum Non Conveniens District courts are not required to conclusively determine whether a defendant enjoys sovereign [14] Federal Courts Presumptions and burden immunity before considering immunity as a of proof relevant factor in its forum non conveniens On a motion to dismiss for forum non analysis. conveniens, a plaintiff who chooses to sue in his home forum receives the strongest presumption, whereas a foreign plaintiff with minimal or no [19] Federal Courts Forum Non Conveniens connections to the United States is entitled to less On a motion to dismiss for forum non deference. conveniens, district court is not barred from acknowledging the existence of meaningful jurisdictional questions in determining whether [15] Federal Courts Presumptions and burden a foreign tribunal is plainly the more suitable of proof arbiter of the merits of the case. On a motion to dismiss for forum non conveniens, applying the correct burden of proof is not a box-checking exercise.

*610 Appeals from the United States District Court for the [16] Federal Courts Forum non conveniens District of Columbia (No. 1:16-mc-01184) On appellate review of a district court's grant or Attorneys and Law Firms denial of a motion to dismiss under the forum non conveniens doctrine, what matters is not the Stephen F. Rosenthal, Miami, FL, argued the cause for particular words the court uses but whether the appellants Thomas C. Gaspard, et al. With him on the briefs court’s analysis fits the proper standard. was Floyd A. Wisner.

Caitlyn E. Hubbard, Fort Worth, TX, argued the cause for appellant Thomas Wood. With her on the briefs were I. Marianne M. Auld and Hugh G. Connor II, Fort Worth, TX. The district court’s opinion recounts the factual history Mary Schiavo was on the brief for appellants Elizabeth Smith, surrounding Flight MH370’s disappearance and the ensuing et al. Jodi W. Flowers, Mount Pleasant, SC, entered an investigations in detail. See In re Air Crash Over S. Indian appearance. Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018). We will therefore focus only on the facts pertinent to this appeal. Eric B. Wolff, Seattle, WA, argued the cause for appellees. With him on the joint brief were Gregory F. Miller, Telly *611 Malaysia Airlines Flight MH370 disappeared en route Andrews, Chicago, IL, and Richard A. Walker. Eric J. Rhine, from Kuala Lumpur International Airport in Malaysia to Houston, TX, entered an appearance. Beijing, China, early in the morning on March 8, 2014. On board Flight MH370 were 227 passengers and 12 Malaysian Before: Wilkins and Rao , Circuit Judges, and Randolph, crew members. The 227 passengers were of 14 nationalities, Senior Circuit Judge. including 152 Chinese citizens, 38 Malaysian citizens, and 3 United States citizens. The aircraft in question was a Boeing Opinion 777-2H6ER that was designed and manufactured at Boeing’s Rao, Circuit Judge: facility in Washington state and delivered to the airline in new condition in May 2002. This appeal arises out of the unexplained disappearance of Malaysia Airlines Flight MH370 somewhere over the An extensive search for the missing aircraft ensued following Southern Indian Ocean in the early hours of March 8, the plane’s disappearance. The search team ultimately 2014. A series of extensive searches and investigations concluded that Flight MH370 likely crashed in the Southern conducted over more than four years yielded no definitive Indian Ocean after running out of fuel, but neither the plane answers as to the cause of this tragedy, and all passengers nor other critical pieces of evidence, such as the cockpit and crew members on board the flight are presumed dead. voice recorder and flight data recorder, were recovered. In Representatives of many of the passengers filed lawsuits in addition to the search for physical evidence, the Malaysian the United States asserting, inter alia, Montreal Convention government took the lead on a separate civil investigation claims against Malaysia Airlines Systems Berhad, Malaysia’s into why Flight MH370 had disappeared. This investigation national airline at the time of Flight MH370, its current culminated in a 449-page report, which concluded that national airline, Malaysia Airlines Berhad, and the airlines’ while the investigation team was “unable to determine insurers, as well as state law products liability and wrongful the real cause for the disappearance of MH370,” human death claims against Boeing, which manufactured the aircraft interference or error were more likely the cause of the in question in Washington state. plane’s disappearance than aircraft or system malfunction. In connection with this investigation and a related criminal Those lawsuits were centralized into a multidistrict litigation investigation, the civil investigation team and the Malaysian in the United States District Court for the District of Columbia government conducted numerous interviews of witnesses and coordinated for pretrial purposes. Appellees moved located in Malaysia, including airline employees, family jointly to dismiss for forum non conveniens and the district members and acquaintances of the Malaysian crew, air traffic court granted that motion in full, concluding that Malaysia is controllers, cargo shippers, and Malaysian investigators. a more convenient forum to hear all of the appellants’ claims. While the Court has great sympathy for the victims of this At the time of Flight MH370’s disappearance, Malaysia tragedy and their families, we cannot disregard the narrow Airlines Systems Berhad (“MAS”) served as the national standard governing our review in this case. We conclude airline of Malaysia and the Malaysian government held a that the district court did not clearly abuse its discretion in direct, controlling stake in the company. After the crash, dismissing appellants’ lawsuits for forum non conveniens and the Malaysian government enacted the Malaysian Airline affirm the decision in full. System Berhad (Administration) Act 2015 (“Act 765”). Act 765 incorporated a new, separate entity—Malaysia Airlines Berhad (“MAB”)—as the new Malaysian national airline,

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 In re Air Crash over the Southern Indian Ocean on March 8, 2014, 946 F.3d 607 (2020) Prod.Liab.Rep. (CCH) P 20,797 transferred MAS’s assets to MAB, and placed MAS under non conveniens determination is committed to the sound administration. Under the explicit terms of Act 765, MAB is discretion of the trial court.” Piper Aircraft Co. v. Reyno, not a successor corporation to MAS and has not assumed any 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). of MAS’s liabilities related to Flight MH370. So long as the district court “has considered all relevant public and private interest factors, and ... its balancing of Beginning in early 2016, a total of forty lawsuits related to these factors is reasonable,” we must afford that decision Flight MH370’s disappearance were filed in various federal “substantial deference” and will overturn only if we find a district courts across the United States, and the Judicial Panel on Multidistrict Litigation transferred them to the District “clear abuse of discretion.” Id. Under this narrow standard, of Columbia district court for pretrial proceedings. The we find no basis to reverse the district court’s reasoned various plaintiffs, all legal representatives or beneficiaries decision. of decedents, divided into two groups in the proceedings below, one represented by Podhurst Orseck, P.A. and Wisner [4] First, the district court did not abuse its discretion Law Firm, P.C. (the “Podhurst Appellants”), and another when it concluded that Malaysia is an adequate, available represented by Motley Rice LLC and Spagnoletti & Co. (the forum for appellants’ Montreal Convention and state law “Motley Rice Appellants”). The parties are largely the same products liability and wrongful death claims. Only the Motley on appeal, except that one appellant, Thomas Wood, now Rice Appellants directly challenge this determination on proceeds individually. Appellant Wood is a U.S. citizen and appeal. They argue that the Malaysian government “has resident suing on behalf of his deceased brother, Philip Wood, demonstrated clear intent to, and did, deprive [appellants] of a U.S. citizen who was living in Malaysia at the time of Flight any real adequate and available forum in Malaysia” through its enactment of Act 765, which transferred all of MAS’s MH370. 1 assets to MAB without deeming MAB a successor entity to MAS. For the first time on appeal, the Motley Rice *612 Following more than a year of court-ordered discovery Appellants also contend that Malaysian law would provide on various threshold issues, appellees filed a joint motion to such insignificant damages for appellants’ tort claims against dismiss under the doctrine of forum non conveniens. MAS/ Boeing that forcing appellants to try those claims in Malaysia MAB also sought dismissal on other threshold grounds, would “obliterate[ ] any real likelihood of trial.” including sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”) and lack of subject matter [5] We agree with the district court that the enactment of jurisdiction under the Montreal Convention. Relying on the Act 765 does not render Malaysia an inadequate forum. Supreme Court’s decision in Sinochem International Co. As the district court explained, MAS appears to have an v. Malaysia International Shipping Corp., the district court insurance policy that would apply to appellants’ Montreal declined to reach the jurisdictional challenges and instead Convention claims—and even assuming Act 765 did render dismissed on the basis of forum non conveniens. In re Air MAS judgment proof, a U.S. forum would not provide Crash Over S. Indian Ocean, 352 F. Supp. 3d at 35 (citing any greater likelihood of redress. Moreover, because the 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 Motley Rice Appellants failed to raise any challenge to the (2007)). This timely appeal followed. adequacy of tort damages under Malaysian law before the district court, those arguments are forfeited. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional circumstances, a party forfeits an *613 II. argument by failing to press it in district court.”). [1] [2] [3] A party seeking dismissal for forum non [6] [7] [8] In any event, in the context of a forum non conveniens bears the burden of showing both (1) that an conveniens inquiry, “a foreign forum is not inadequate merely adequate alternative forum is available to hear the dispute, and (2) if so, that the balance of certain public and private because it has less favorable substantive law.” Agudas interest factors strongly counsels in favor of trying the dispute Chasidei Chabad, 528 F.3d at 950 (citation and quotation in the alternative forum. See, e.g., Agudas Chasidei marks omitted); accord Piper Aircraft, 454 U.S. at 247, Chabad of U.S. v. Russian Fed’n, 528 F.3d 934, 950 (D.C. Cir. 102 S.Ct. 252 (“The possibility of a change in substantive law 2008). The Supreme Court has instructed that “[t]he forum should ordinarily not be given conclusive or even substantial

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 In re Air Crash over the Southern Indian Ocean on March 8, 2014, 946 F.3d 607 (2020) Prod.Liab.Rep. (CCH) P 20,797 weight in the forum non conveniens inquiry.”). Where, as chosen forum. Simon v. Republic of Hungary, 911 F.3d here, it appears undisputed that an alternative forum would provide a plaintiff at least some remedy, a district court 1172, 1182 (D.C. Cir. 2018) (quoting Piper Aircraft, 454 acts within its discretion in deeming that forum an adequate U.S. at 255–56, 102 S.Ct. 252). But the precise degree of deference *614 afforded a plaintiff’s forum choice varies alternative to a U.S. court. See, e.g., Piper Aircraft, 454 depending on the plaintiff’s connection to the forum. A U.S. at 254 n.22, 102 S.Ct. 252 (explaining that a forum plaintiff who chooses to sue in his home forum receives will only be deemed inadequate “[i]n rare circumstances ... the strongest presumption, whereas a foreign plaintiff with where the remedy offered by the other forum is clearly minimal or no connections to the United States is entitled to unsatisfactory,” such as “where the alternative forum does not less deference. Piper Aircraft, 454 U.S. at 256, 102 S.Ct. permit litigation of the subject matter of the dispute”). 2 252. Accordingly, the district court afforded Appellant Wood, as a U.S. citizen and resident representing a U.S. citizen [9] [10] Nor did the district court clearly abuse its discretion decedent, “the highest degree of deference” and tailored in concluding that the balance of relevant public and private its analysis of the remaining appellants’ interests in having interest factors weighs heavily in favor of trying appellants’ their claims heard in the United States to their particular cases in Malaysia. The relevant public interest factors include, circumstances. In re Air Crash Over S. Indian Ocean, 352 F. inter alia, the “ ‘administrative difficulties’ when ‘litigation is Supp. 3d at 45. piled up in congested centers,’ ” the “ ‘local interest in having localized controversies decided at home,’ ” and the desire to [15] [16] On appeal, the foreign appellants contend that the avoid requiring a court to “ ‘untangle problems in conflict of district court erroneously refused to afford any deference at all laws, and in law foreign to itself.’ ” Shi v. New Mighty U.S. to their decision to sue in the United States. They also criticize Tr., 918 F.3d 944, 952 (D.C. Cir. 2019) (quoting Gulf Oil the district court for failing to specify the precise degree of Corp. v. Gilbert, 330 U.S. 501, 508–09, 67 S.Ct. 839, 91 L.Ed. deference it applied to them, claiming that “[t]his omission, 1055 (1947)). The private interest analysis, on the other hand, in and of itself, was reversible error.” These arguments rest focuses on “ ‘the relative ease of access to sources of proof,’ on a fundamental misconception of what the forum non ” the costs and procedural mechanisms required to secure the conveniens analysis requires. Indeed, this Court has stressed attendance of witnesses, and “ ‘all other practical problems that “applying the correct burden of proof is not a box- that make trial of a case easy, expeditious and inexpensive.’ ” checking exercise.” Simon, 911 F.3d at 1185. What matters Id. at 950 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). is not the particular words a district court uses but whether the court’s analysis fits the proper standard. [11] The district court found that Malaysia’s public interest in hearing claims arising out of Flight MH370’s disappearance [17] Here, the district court’s analysis reflected a careful far outweighs that of the United States, even as to the tort consideration of the foreign appellants’ interests in trying claims asserted against U.S.-based manufacturer Boeing. The these cases in the United States and a thoughtful balancing district court further held that the private interest factors tilt of the public and private interest factors with respect to strongly in favor of trying these cases in Malaysia, given the those individuals specifically. Moreover, as already noted, the overwhelming amount of evidence and witnesses located in district court correctly recognized that Appellant Wood was Malaysia and the potentially insurmountable challenges that entitled to the greatest degree of deference. Because the court would arise from attempting to make that evidence available concluded that even Wood’s substantial interest in trying these in a United States court. claims in the United States could not overcome the significant evidentiary problems posed by proceeding in a U.S. court, it [12] [13] [14] We affirm on substantially the same necessarily followed that the foreign appellants—who were grounds provided in the district court’s well-reasoned concededly entitled to less deference than Wood—could not opinion, but pause here to address two points raised by succeed in showing that the balance of interests weighed in appellants. The first relates to the degree of deference the favor of maintaining their claims here. We find no reversible district court applied to the various appellants. As the court error in the district court’s reasoning regarding the appropriate recognized, the starting point for the forum non conveniens levels of deference afforded to appellants’ claims. analysis is “a strong presumption in favor” of a plaintiff’s

Second, appellants argue that the district court erred by that serious jurisdictional questions exist and weigh that as a first declining to reach the separate sovereign immunity factor in favor of dismissal. challenges raised by MAS/MAB and then relying on the existence of potentially “intractable immunity questions” [19] In addition, appellants argue that the district court placed undue weight on sovereign immunity concerns as a as a justification for its forum non conveniens dismissal. private interest factor favoring dismissal. The district court’s According to appellants, this analysis was inconsistent with opinion, however, makes clear that it considered all relevant Sinochem, under which a court may elect to grant a motion circumstances, including the potential immunity issues, and for forum non conveniens while “bypassing” threshold issues concluded that “taken as a whole, the private interest factors relating to the court’s subject matter jurisdiction. See 549 favor dismissal of these claims.” In re Air Crash Over S. U.S. at 432, 127 S.Ct. 1184. Indian Ocean, 352 F. Supp. 3d at 53 (emphasis added). Sinochem imposes no bar on a district court’s ability [18] As an initial matter, appellants incorrectly suggest that to acknowledge the existence of meaningful jurisdictional the district court treated MAS/MAB’s immunity challenges questions in determining whether “a foreign tribunal is under the FSIA “as granted for purposes of its forum plainly the more suitable arbiter of the merits of the case.” non conveniens analysis.” Nor did the court impermissibly “leapfrog” the immunity questions and then rely on the See Sinochem, 549 U.S. at 425, 127 S.Ct. 1184. Thus, same unresolved immunity issues to deny appellants their appellants’ Sinochem-based challenges also fail. chosen forum. Instead, the district court merely conducted a preliminary assessment of MAS/MAB’s immunity claims * * * and concluded that “[t]he potential of intractable immunity questions that might stymie Boeing’s ability to implead In considering appellees’ motion to dismiss for forum non other defendants raises the prospect of precisely the kind of conveniens, the district court carefully weighed the relevant oppressive and vexatious outcome that forum non conveniens public and private interest factors and reasonably concluded dismissal is designed to avoid.” In re Air Crash Over S. Indian that Malaysia is a more convenient forum to try appellants’ Ocean, 352 F. Supp. 3d at 53 (citation omitted). Nothing in claims. Because we find no “clear abuse of discretion” in the district court’s reasoning, we affirm. Sinochem requires district courts to *615 conclusively determine whether a defendant enjoys sovereign immunity So ordered. before considering immunity as a relevant factor in its forum non conveniens analysis. Here, Boeing and MAS/MAB raise serious arguments regarding MAS/MAB’s likely immunity, All Citations and it was entirely proper for the district court to recognize 946 F.3d 607, Prod.Liab.Rep. (CCH) P 20,797

Footnotes

1 Numerous civil cases arising out of Flight MH370’s disappearance are also pending in Malaysia. Seventy- seven of the eighty-eight decedents represented in the legal actions that comprise this litigation are also represented in cases pending in Malaysia. Boeing has not been named as a party to any of the Malaysian suits to date, but Boeing has consented to the jurisdiction of the Malaysian courts and agreed to make all relevant evidence available in Malaysia as a condition of dismissal for forum non conveniens. 2 In his discussion of the public interest factors governing the forum non conveniens analysis, Appellant Wood argues that his difficulty in securing the counsel of his choice in Malaysia “casts doubt on whether Malaysia constitutes an adequate, alternative forum.” Neither Wood nor any of the Podhurst Appellants raised this argument in the proceedings below. Thus, to the extent this passing reference can be construed as a standalone challenge to Malaysia’s adequacy as an alternative forum, that challenge has been forfeited. See Manitoba, 923 F.3d at 179.