In Re Air Crash Over the Southern Indian Ocean, 946 F. 3d 607 (2020)
United States Court of Appeals, District of Columbia Circuit
Facts
*611 Malaysia Airlines Flight MH370 disappeared en route from Kuala Lumpur International Airport in Malaysia to Beijing, China, early in the morning on March 8, 2014. On board Flight MH370 were 227 passengers and 12 Malaysian crew members. The 227 passengers were of 14 nationalities, including 152 Chinese citizens, 38 Malaysian citizens, and 3 United States citizens. The aircraft in question was a Boeing 777-2H6ER that was designed and manufactured at Boeing’s facility in Washington state and delivered to the airline in new condition in May 2002.
An extensive search for the missing aircraft ensued following the plane’s disappearance. The search team ultimately concluded that Flight MH370 likely crashed in the Southern Indian Ocean after running out of fuel, but neither the plane nor other critical pieces of evidence, such as the cockpit voice recorder and flight data recorder, were recovered. In addition to the search for physical evidence, the Malaysian government took the lead on a separate civil investigation into why Flight MH370 had disappeared. This investigation culminated in a 449-page report, which concluded that while the investigation team was “unable to determine the real cause for the disappearance of MH370,” human interference or error were more likely the cause of the plane’s disappearance than aircraft or system malfunction. In connection with this investigation and a related criminal investigation, the civil investigation team and the Malaysian government conducted numerous interviews of witnesses located in Malaysia, including airline employees, family members and acquaintances of the Malaysian crew, air traffic controllers, cargo shippers, and Malaysian investigators.
At the time of Flight MH370’s disappearance, Malaysia Airlines Systems Berhad (“MAS”) served as the national airline of Malaysia and the Malaysian government held a direct, controlling stake in the company. After the crash, the Malaysian government enacted the Malaysian Airline System Berhad (Administration) Act 2015 (“Act 765”). Act 765 incorporated a new, separate entity—Malaysia Airlines Berhad (“MAB”)—as the new Malaysian national airline, transferred MAS’s assets to MAB, and placed MAS under administration. Under the explicit terms of Act 765, MAB is not a successor corporation to MAS and has not assumed any of MAS’s liabilities related to Flight MH370.
Beginning in early 2016, a total of forty lawsuits related to Flight MH370’s disappearance were filed in various federal district courts across the United States, and the Judicial Panel on Multidistrict Litigation transferred them to the District of Columbia district court for pretrial proceedings.
Issue(s)
Was it appropriate to dismiss the proceedings in the United States on a forum non conveniens basis?
Discussion
We agree with the district court that the enactment of Act 765 does not render Malaysia an inadequate forum. As the district court explained, MAS appears to have an insurance policy that would apply to appellants’ Montreal Convention claims—and even assuming Act 765 did render MAS judgment proof, a U.S. forum would not provide any greater likelihood of redress. Moreover, because the Motley Rice Appellants failed to raise any challenge to the 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 argument by failing to press it in district court.”).
In any event, in the context of a forum non conveniens inquiry, “a foreign forum is not inadequate merely because it has less favorable substantive law.” Agudas Chasidei Chabad, 528 F.3d at 950 (citation and quotation marks omitted); accord Piper Aircraft, 454 U.S. at 247, 102 S.Ct. 252 (“The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.”). Where, as here, it appears undisputed that an alternative forum would provide a plaintiff at least some remedy, a district court acts within its discretion in deeming that forum an adequate alternative to a U.S. court. See, e.g., Piper Aircraft, 454 U.S. at 254 n.22, 102 S.Ct. 252 (explaining that a forum will only be deemed inadequate “[i]n rare circumstances … where the remedy offered by the other forum is clearly unsatisfactory,” such as “where the alternative forum does not permit litigation of the subject matter of the dispute”).[2]
Nor did the district court clearly abuse its discretion in concluding that the balance of relevant public and private interest factors weighs heavily in favor of trying appellants’ cases in Malaysia. The relevant public interest factors include, inter alia, the “`administrative difficulties’ when `litigation is piled up in congested centers,'” the “`local interest in having localized controversies decided at home,'” and the desire to avoid requiring a court to “`untangle problems in conflict of laws, and in law foreign to itself.'” Shi v. New Mighty U.S. Tr., 918 F.3d 944, 952 (D.C. Cir. 2019) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). The private interest analysis, on the other hand, focuses on “`the relative ease of access to sources of proof,'” the costs and procedural mechanisms required to secure the attendance of witnesses, and “`all other practical problems that make trial of a case easy, expeditious and inexpensive.'” Id. at 950 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839).
The district court found that Malaysia’s public interest in hearing claims arising out of Flight MH370’s disappearance far outweighs that of the United States, even as to the tort claims asserted against U.S.-based manufacturer Boeing. The district court further held that the private interest factors tilt strongly in favor of trying these cases in Malaysia, given the overwhelming amount of evidence and witnesses located in Malaysia and the potentially insurmountable challenges that would arise from attempting to make that evidence available in a United States court.
We affirm on substantially the same grounds provided in the district court’s well-reasoned opinion, but pause here to address two points raised by appellants. The first relates to the degree of deference the district court applied to the various appellants. As the court recognized, the starting point for the forum non conveniens analysis is “a strong presumption in favor” of a plaintiff’s chosen forum. Simon v. Republic of Hungary, 911 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252). But the precise degree of deference *614 afforded a plaintiff’s forum choice varies depending on the plaintiff’s connection to the forum. A plaintiff who chooses to sue in his home forum receives the strongest presumption, whereas a foreign plaintiff with minimal or no connections to the United States is entitled to less deference. Piper Aircraft, 454 U.S. at 256, 102 S.Ct. 252. Accordingly, the district court afforded Appellant Wood, as a U.S. citizen and resident representing a U.S. citizen decedent, “the highest degree of deference” and tailored its analysis of the remaining appellants’ interests in having their claims heard in the United States to their particular circumstances. In re Air Crash Over S. Indian Ocean, 352 F. Supp. 3d at 45.
On appeal, the foreign appellants contend that the district court erroneously refused to afford any deference at all to their decision to sue in the United States. They also criticize the district court for failing to specify the precise degree of deference it applied to them, claiming that “[t]his omission, in and of itself, was reversible error.” These arguments rest on a fundamental misconception of what the forum non conveniens analysis requires. Indeed, this Court has stressed that “applying the correct burden of proof is not a box-checking exercise.” Simon, 911 F.3d at 1185. What matters is not the particular words a district court uses but whether the court’s analysis fits the proper standard.
Here, the district court’s analysis reflected a careful consideration of the foreign appellants’ interests in trying these cases in the United States and a thoughtful balancing of the public and private interest factors with respect to those individuals specifically.
