Gschwind v. Cessna Aircraft Co.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VIRGINIE GSCHWIND, in her own
right and administratix of the estate of
Cyril Gschwind and Alexandra
Gschwind,

Plaintiff - Appellant,

v. No. 97-3164

CESSNA AIRCRAFT COMPANY;
PRATT & WHITNEY CANADA,
INC.,

Defendants - Appellees.

ORDER

Filed November 10, 1998

Before TACHA, McWILLIAMS, and KELLY, Circuit Judges.

Appellee’s motion to publish the order and judgment filed on September

18, 1998, is granted. The published opinion is attached to this order.

Entered for the Court
Patrick Fisher, Clerk of Court

By:
Keith Nelson
Deputy Clerk
 F I L E D
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS SEP 18 1998

TENTH CIRCUIT PATRICK FISHER
Clerk

VIRGINIE GSCHWIND, in her own
right and administratix of the estate of
Cyril Gschwind and Alexandra
Gschwind,

Plaintiff - Appellant,

v. No. 97-3164

CESSNA AIRCRAFT COMPANY;
PRATT & WHITNEY CANADA,
INC.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 96-1269-MLB)

Catherine B. Slavin, Wolk & Genter, Philadelphia, Pennsylvania (Ken. M.
Peterson, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kansas, with her on
the briefs), appearing for Appellant.

John C. Nettels, Jr., Morrison & Hecker, Wichita, Kansas, appearing for Appellee
Cessna Aircraft Company.

Curtis C. Landherr, Baker, Sterchi, Cowden & Rice, L.L.C., Overland Park,
Kansas, (John W. Cowden, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City,
Missouri, with him on the brief), appearing for Appellee Pratt & Whitney Canada,
Ltd.
Before TACHA, McWILLIAMS, and KELLY, Circuit Judges.

TACHA, Circuit Judge.

This case arises from a plane crash that occurred in France and killed the

pilot, Cyril Gschwind. Defendants, the Cessna Aircraft Company and Pratt &

Whitney Canada, moved for dismissal based on forum non conveniens. The

district court granted their motion, finding that France would be a significantly

more convenient forum for this dispute. We take jurisdiction of the plaintiff’s

appeal pursuant to 18 U.S.C. § 1291 and affirm.

On August 16, 1993, Cyril Gschwind, a French citizen living in Belgium,

died when the Cessna Caravan 208B that he was piloting crashed near Cannes,

France. At the time of his death, the decedent was the European distributor for

Cessna Caravan Aircraft. His company, Aviation & Services Europe, had offices

in Mandelieu, France. Nonetheless, Mr. Gschwind’s business brought him to the

United States on a number of occasions, and he had been trained to fly the Cessna

Caravan in Miami, Florida.

There may have been one eyewitness to the crash, which was investigated

by French authorities. The aircraft involved in the accident had only

approximately fifty hours of actual flight time; no maintenance had been

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performed on it since it had left the United States. Although French authorities

sent some components of the aircraft to the United States for testing, the

wreckage is still in France.

A lawsuit relating to the financial position of the decedent’s business at the

time of his death was filed in Cannes, France, shortly after the crash. In the suit,

a British aircraft company named Titan alleges that Gschwind kept money that

was to be used for the purchase of a Cessna aircraft. This evidence, along with a

note written by Mr. Gschwind to a business associate named Peter Bennedsen and

faxed to him shortly before the crash, suggests the possibility of suicide. The

note read:

I am obliged to take a flight today with which I don’t feel
comfortable at all. Should anything happen to me, and since you are
the only person I trust, could you please: (1) wire back the extra
money you receive from me [to a Swiss bank account, and] (2) take
care as best you can, of the interest of my small family (wife &
baby).

Appellant App. at 295.

Mr. Gschwind’s widow, Virginie Gschwind, brought this wrongful death

action against Cessna, the Kansas manufacturer of the Caravan 208B aircraft,

Pratt & Whitney Canada, a Quebec company that manufactured the engine used in

the Caravan, and Hartzell Propeller Inc., an Ohio company that makes some (but

not all) of the propellers for the Caravan aircrafts. Plaintiff based her action on

various product liability and negligence claims. The parties eventually dismissed

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Hartzell from the case by stipulation.

The Plaintiff sued in the Court of Common Pleas for Montgomery County,

Ohio, and the Defendants removed to federal court. Defendant Cessna then filed

a motion to dismiss on the grounds of forum non conveniens or for a change of

venue to the U.S. District Court for the District of Kansas. Pratt & Whitney

moved to dismiss for lack of personal jurisdiction or, in the alternative, for

dismissal based on forum non conveniens. The Magistrate handling the case

recommended that Defendants’ forum non conveniens motions be denied. The

Magistrate did, however, grant the lesser request of a transfer to the District of

Kansas. The case was transferred to the District of Kansas, where the Defendants

appealed the Magistrate’s forum non conveniens recommendation. The district

court agreed with Defendants and dismissed the case based on forum non

conveniens. The district court conditioned its dismissal on Defendants’

agreement to: (1) produce their respective employees, officers and records in

France, at their own cost; (2) make good faith and reasonable efforts to obtain the

attendance of former employees and officers; (3) waive any limitations defenses

that would not have been available to them had plaintiff initiated her litigation in

France on the same day she filed her complaint in Ohio; (4) transport all physical

evidence brought from Europe back to France; (5) voluntarily enter their

appearance before the court when plaintiff initiates her litigation in France; and

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(6) consent to reinstatement of this case in its present posture in the event that the

French courts refuse to accept jurisdiction over the matter.

I.

“[T]he central purpose of any forum non conveniens inquiry is to ensure

that the trial is convenient.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256

(1981). There are two threshold questions in the forum non conveniens

determination: first, whether there is an adequate alternative forum in which the

defendant is amenable to process, see id. at 254 n.22, and second, whether foreign

law applies, see Rivendell Forest Prod., Ltd. v. Canadian Pac. Ltd., 2 F.3d 990,

994 (10 th Cir. 1993). If the answer to either of these questions is no, the forum

non conveniens doctrine is inapplicable. If, however, the answer to both

questions is yes, the court goes on to weigh the private and public interests

bearing on the forum non conveniens decision.

The private interest factors to be considered are: (1) the relative ease of

access to sources of proof; (2) availability of compulsory process for compelling

attendance of witnesses; (3) cost of obtaining attendance of willing non-party

witnesses; (4) possibility of a view of the premises, if appropriate; and (5) all

other practical problems that make trial of the case easy, expeditious and

inexpensive. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The public

interest factors include: (1) administrative difficulties of courts with congested

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dockets which can be caused by cases not being filed at their place of origin; (2)

the burden of jury duty on members of a community with no connection to the

litigation; (3) the local interest in having localized controversies decided at home;

and (4) the appropriateness of having diversity cases tried in a forum that is

familiar with the governing law. See id. at 508-09.

As the district court noted, normally there is a strong presumption in favor

of hearing the case in the plaintiff’s chosen forum. See Piper, 454 U.S. at 255.

That presumption is overcome “only when the private and public interest factors

clearly point towards trial in the alternative forum.” Id. A foreign plaintiff’s

choice of forum, however, warrants less deference. See id. at 256. When the

plaintiff is foreign, the private and public interest factors need not so heavily

favor the alternate forum. See id.

Plaintiff alleges error by the district court on a number of grounds. First,

Plaintiff complains that the district court erred in its consideration of the

availability of an alternate forum, its determination that French law will govern

the case, and its weighing of the private and public interest factors. Second,

Plaintiff contends that Defendant failed to provide a sufficient factual record in

support of its motion.

Our standard for reviewing a district court’s decision to grant or deny a

motion for forum non conveniens is as follows:

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 The forum non conveniens determination is committed to the
sound discretion of the trial court. It 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.

Id. at 257. Nonetheless, appellate review is not perfunctory; we carefully

examine the reasoning of the district court. See Rivendell, 2 F.3d at 992.

A.

We address first the district court’s alleged error in determining that

there is an adequate and available alternate forum--in this case, France.

Plaintiff correctly notes that the defendant bears the burden of proving that an

adequate alternative forum exists. See, e.g., El-Fadl v. Central Bank of Jordan,

75 F.3d 668, 677 (D.C. Cir. 1996); Schertenleib v. Traum, 589 F.2d 1156,

1160 (2d Cir. 1978). The defendant must prove that the alternative forum is

both available and adequate. Kamel v. Hill-Rom Co., 108 F.3d 799, 802 (7 th

Cir. 1997); Reid-Walen v. Hansen, 933 F.2d 1390, 1393 n.2 (8 th Cir. 1991).

In this case, Defendants agreed to be subject to suit in France. That

concession is generally enough to make the alternative forum available. See

Piper, 454 U.S. at 254 n.22 (“Ordinarily, this requirement will be satisfied

when the defendant is ‘amenable to process’ in the other jurisdiction.”)

(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947)); Magnin v.

Teledyne Continental Motors, 91 F.3d 1424, 1429 (11th Cir. 1996) (finding

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France an available alternative forum where the defendants had agreed to

French jurisdiction); R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167

(2d. Cir. 1991) (finding India was adequate and available forum where

defendant agreed to submit to Indian court jurisdiction); Contact Lumber Co. v.

P.T. Moges Shipping Co., Ltd., 918 F.2d 1446, 1450 (9 th Cir. 1990) (agreement

to be subject to jurisdiction of Philippine courts established available alternate

forum). Plaintiff points out that there was no evidence that the French courts

would in fact accept jurisdiction, even with Defendants’ consent. Defendants

certainly would have greatly assisted this court’s review by providing evidence

of relevant French law. Nevertheless, the district court determined that France

is an available alternate forum, and, for several reasons, we find no clear error

in this conclusion.

First, French law recognizes product liability and wrongful death actions,

see Martindale-Hubbell, France Law Digest in Martindale-Hubbell

International Law Digest FRA-31 (Coudert Brothers and Coudert Freres eds.,

1998); Piper, 454 U.S. at 254 n.18 (“Rules roughly equivalent to American

strict liability are effective in France . . . .”); Mediterranean Golf, Inc. v. Hirsh,

783 F. Supp. 835, 841 n.6 (D.N.J. 1991) (noting that French law provides a

broad statutory basis for tort liability). Second, Plaintiff herself admitted in the

record that she could bring a viable action against defendants in French courts

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in Digne, France. Appellant App. at 210. Finally, the district court

conditioned its dismissal for forum non conveniens on Defendants’ consent to

have the action reinstated in the District of Kansas if the French courts refuse

jurisdiction. That condition, combined with the court’s findings on French law,

is enough to ensure that the case will be heard; in fact, such an approach was

explicitly approved in Mercier v. Sheraton International, Inc., the case cited by

Plaintiff. See Mercier v. Sheraton Int’l, Inc., 935 F.2d 419, 426 (1 st Cir. 1991)

(“At a minimum, the district court should have granted a dismissal conditioned

on the [foreign] courts’ actually taking cognizance of a substitute action.”).

Therefore, we find no error in the district court’s conclusion that an alternate

forum is available.

Plaintiff also objects to the finding that the French court system is

adequate. First, Plaintiff’s brief implies that the French system is inadequate

because of the delay that might be involved in a French proceeding. According

to Plaintiff, the French courts would stay a civil action until the completion of

their criminal proceedings. Such a delay does not render the French courts

inadequate, as one court noted in an analogous case:

Regrettably for [the plaintiff], procedural differences
between forums do not bar a forum non conveniens dismissal
in the absence of a “complete denial of due process.” Delays
in an alternative forum’s judicial system are not sufficiently
harmful of due process to prevent dismissal on the ground of
forum non conveniens . . . .

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 ....

. . . . The French proceeding remains adequate, even if
the criminal charge stays the civil process.

Broadcasting Rights Int’l Corp. v. Societe du Tour de France, S.A.R.L., 708 F.

Supp. 83, 85-86 (S.D.N.Y. 1989) (citations omitted).

Second, Plaintiff argues that the French system was inadequate because

Defendants were not required to waive all of their limitations defenses in the

foreign country. Instead, the district court only required that Defendants waive

limitations defenses that would not have been available to them in France on

the day Gschwind filed her initial complaint in the Ohio system. Courts of

appeals have approved conditions similar to the one given by the district court.

See, e.g., Needham v. Phillips Petroleum Co., 719 F.2d 1481, 1483 (10th Cir.

1983); Zekic v. Reading & Bates Drilling Co., 680 F.2d 1107, 1108 (5th Cir.

1982), overruled on other grounds, In re Air Crash Disaster Near New Orleans,

Louisiana on July 9, 1982, 821 F.2d. 1147, 1163-64 n.25 (5 th Cir. 1987).

Moreover, the remedy provided by the alternate forum need not be the same as

that provided by the American court; only when the alternate forum’s remedy is

“so clearly inadequate . . . that it is no remedy at all” should the unfavorable

change in law weigh in the court’s determination. Piper, 454 U.S. at 254-55.

We do not find the French system inadequate on this count.

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 B.

Plaintiff next asserts that the district court erred in its determination that,

under applicable choice of law principles, French law will govern the case. As

we noted, choice of law is a threshold determination for application of forum

non conveniens. We review choice of law decisions de novo. Needham v.

Phillips Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10 th Cir. 1983). The

district court correctly determined that Ohio’s choice of law jurisprudence

governs this suit and carefully analyzed the factors under Ohio law. After

independently reviewing the record and applicable law, we agree with the

analysis and conclusion of the district court. Plaintiff asserts that the district

court gave too little weight to Kansas as the alleged situs of the tortious

conduct and to the interest of Kansas in the litigation. The district court,

however, properly recognized that there are numerous places where the tortious

conduct could have occurred, and it gave the interest of Kansas adequate

weight.

C.

Plaintiff’s third group of arguments relates to the district court’s

weighing of the private interest factors. Plaintiff contends that the district

court failed to assign sufficient weight to the fact that all of the evidence

relating to the aircraft’s component certification, and much of the evidence

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relating to Mr. Gschwind’s flight training and business dealings, is located in

the United States. The district court analyzed this evidence when considering

the first private interest factor: relative ease of access to sources of proof.

With respect to the component certification and flight training records,

the district court made the following conclusion: “The parties themselves, their

employees and records, are equally accessible in both France and Kansas

because the parties are subject to personal jurisdiction in both locations.” Dist.

Ct. Mem. & Order at 20. The court determined that virtually all of the evidence

relating to the products liability claim fell into this category of evidence.

The district court ultimately found that this factor favored Defendants

because most of the evidence relevant to the defendants’ claim that Mr.

Gschwind was either contributorily negligent or committed suicide was more

readily available in France. This evidence included, among other things,

accounts of the decedent’s business dealings. Although Plaintiff claims that

much of the business-related evidence is in the United States, the district court

found that the decedent was doing business primarily in Europe. We do not

find this conclusion clearly erroneous. Furthermore, because the district court

performed a reasoned analysis of this factor, we find that the district court did

not abuse its discretion in weighing it in favor of Defendant.

Plaintiff further argues that the district court erred by failing to state the

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amount of deference due to this foreign plaintiff’s choice of forum. Plaintiff

relies on Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628, 633 (3d Cir.

1989) and Lacey v. Cessna Aircraft Co., 932 F.2d 170, 179 (3d Cir. 1991).

Those cases, however, require nothing more than a recognition on the part of

the district court that a foreign plaintiff’s choice of forum merits some

deference, but not as much as that of a domestic plaintiff. As the Third Circuit

said:

[W]e do not read this language [from Lony] as requiring a
court somehow to mark on a continuum the precise degree of
deference it accords a plaintiff’s choice. Indeed, the district
court in this case expressly eschewed such an illusory exercise,
stating frankly that it was “impossible to quantify” the
applicable level of deference. . . . Specifically, the court
stated that defendants must establish a “strong preponderance
in favor of dismissal.”

Lacey, 932 F.2d at 179. In this case, the district court stated that when, as here,

the plaintiff is foreign, the plaintiff’s choice of forum “deserves less deference.”

Dist. Ct. Mem. & Order at 11 (quoting Piper, 454 U.S. at 25). This statement of

the law is correct, and we find no abuse of discretion by the district court.

Plaintiff also argues that the district court erred in weighing the private

interest factors because it did not consider that Cessna, a party seeking

dismissal, was a forum resident. Plaintiff contends that this fact should have

weighed heavily against dismissal. It is true that a forum resident should have

to make a stronger case than others for dismissal based on forum non

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conveniens. See Reid-Walen v. Hansen, 933 F.2d 1390, 1395 (8th Cir. 1991).

For a number of reasons, however, we conclude that the district court did

not abuse its discretion by failing to mention this consideration. In this case, the

forum resident, Cessna, was not the only defendant arguing for dismissal based

on forum non conveniens. Pratt & Whitney, a company located in Longueil,

Quebec, had also moved for dismissal. Thus, the strength of Plaintiff’s

argument is diluted by at least one-half. It is further diluted by the fact that

Cessna is an international organization; the fact that a defendant is a resident of

the forum has more weight in the forum non conveniens analysis when the

defendant is an individual rather than a broad-based corporation. See id.

Furthermore, Cessna’s residency did weigh against it in this case, though in a

slightly different context. The district court, in its analysis of the public interest

factors, determined that the case would not excessively burden Kansas citizens

because Cessna’s residence in Kansas gave the state a connection to the

litigation. See Dist. Ct. Mem. and Order, at 28.

D.

Plaintiff makes only two arguments relating to the district court’s

evaluation of the public interest factors. First, Plaintiff indicates that the

district court erred in weighing the “administrative difficulties” factor in favor

of Defendants. With respect to this factor, the district court said that

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“[a]llowing the case to proceed in this court will unduly contribute to the

congestion of the court’s docket. There are already numerous civil motions that

have been pending before this court for more than six months.” Dist. Ct. Mem.

& Order, at 27. According to Plaintiff, it is unfair to hold the court’s congested

docket against her in light of the fact that all of the pending motions in this case

had been filed by Defendants.

Plaintiff misinterprets the court’s statements. The court was not referring

to congestion in this particular case, but rather a build-up of motions and cases

before the District of Kansas as a whole. Under Piper and Gulf Oil, it is proper

for the district court to consider the administrative difficulties this case would

pose to the District of Kansas in deciding the forum non conveniens issue.

Next, Plaintiff asserts that the district court placed too much reliance on

its unfamiliarity with French law. That consideration cannot be dispositive

where the balance of factors demonstrates that the plaintiff’s choice is an

appropriate one. See Rivendell Forest Prods., Ltd. v. Canadian Pac. Ltd., 2 F.3d

990, 994 (10 th Cir. 1993). Considering, however, that we have determined that

the district court did not err in weighing the administrative burden against the

plaintiff, along with the fact that France had a greater “localized” interest in the

matter, it can hardly be said that the district court relied solely on its

unfamiliarity with French law. We find the district court’s analysis of the

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factors to be reasonable. There is no abuse of discretion with regard to the

public interest factors.

II.

Plaintiff’s second argument is that Defendants failed to provide a factual

record sufficient to support a finding that the public and private interests

weighed in favor of dismissal. In Piper, the Supreme Court said:

[The Court of Appeals] suggested that defendants seeking
forum non conveniens dismissal must submit affidavits
identifying the witnesses they would call and the testimony
these witnesses would provide if the trial were held in the
alternative forum. Such detail is not necessary. Piper and
Hartzell have moved for dismissal precisely because many
crucial witnesses are located beyond the reach of compulsory
process, and thus are difficult to identify or interview.
Requiring extensive investigation would defeat the purpose of
their motion. Of course, defendants must provide enough
information to enable the District Court to balance the parties’
interests.

Piper, 454 U.S. at 258. Plaintiff notes, correctly, that the defendant’s showing

has been found insufficient in cases in which the party failed to put any relevant

information in the record. See Rivendell, 2 F.3d at 993; Reid-Walen, 933 F.2d

at 1396. The amount of information needed to enable the district court to

perform the balancing test “depends on the facts of the particular case.” Lacey

v. Cessna Aircraft, 862 F.2d 38, 44 (3d Cir. 1988).

In Lacey, the defendants argued that pilot error may have caused the crash

that gave rise to the lawsuit, as Defendants here do. In Lacey, however, the

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defendants did not support their allegations with any factual materials, and

therefore the “failure to provide any record support for their contentions

precluded the district court from scrutinizing the substance of the dispute

between the parties . . . .” Id. In this case, Defendants have come forward with

documentary evidence in support of their theory that the decedent had been

having business difficulties shortly before his death and that he may have taken

his own life. See Appellant’s App. at 293-95. Defendants also provided the

district court with a copy of pertinent articles of the Hague Evidence

Convention, which shed light on the ability of the United States to compel

attendance of unwilling foreign witnesses. Admittedly, Defendants have

presented a bare minimum of evidence necessary for the court to conduct an

informed balancing of factors. This court certainly would have benefitted from

additional evidence in the record. Nevertheless, in the context of this case, the

items offered by defendant gave the district court enough information to conduct

the balancing, and we find no abuse of discretion.

Finally, Plaintiff argues that two of the district court’s factual findings are

unsupported by the record. Plaintiff first takes issue with the district court’s

conclusion that most sources of proof relevant to Defendants’ claim of

contributory negligence and/or suicide will be more readily available in France.

We stated previously in Part I.C. that we do not find the district court’s

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conclusion with regard to this evidence clearly erroneous.

Plaintiff also contends that there is no record evidence for the fact that the

decedent regularly conducted business in France. Not only does this fact have

support in the record, but Plaintiff concedes it in her brief. See Appellant’s Br.

at 19.

III.

The district court did not err in its decision to apply French law to the

case, and it did not abuse its discretion in finding France to be an available

alternate forum or in balancing the relevant private and public interest factors in

this case. Furthermore, the factual findings of the district court are not clearly

erroneous. We AFFIRM.

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