[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15175 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 06-22748-CV-UU
SYLVIA BAPTE, Individually and as personal representative
of the Estate of Christiane Bapte, deceased,
STEPHANIE ISABELLE BAPTE,
MARYVONNE BAPTE,
Plaintiffs-Appellants,
versus
WEST CARIBBEAN AIRWAYS, a Colombian corporation,
NEWVAC CORPORATION, a Florida corporation,
GO 2 GALAXY, INC., a Florida corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 25, 2010)
Before TJOFLAT, WILSON and COX, Circuit Judges.
PER CURIAM:
In August 2005, while en route from Panama to Martinique, West Caribbean
Airlines, S.A. Flight 708 crashed in Venezuela, killing all passengers and crew on
board. Representatives of the passengers filed several lawsuits, which were
consolidated in the United States District Court for the Southern District of Florida.
They asserted wrongful death and strict liability claims against Defendants West
Caribean Airlines, Newvac Corporation, Go 2 Galaxy, Inc., and Jacque Cimieter
pursuant to 28 U.S.C. § 1369. In addition, representatives of the crew members
brought products liability lawsuits against manufacturers of the airplane and
negligence suits against Newvac in the same district court. The crew cases were
consolidated with one another, but were not consolidated with the passenger cases.
In November 2007, the district court dismissed the passenger cases on forum
non conveniens grounds, and the passengers’ representatives appealed. We affirmed
the district court’s order dismissing the cases in Pierre-Louis v. Newvac Corp., 584
F.3d 1052 (11th Cir. 2009). In May 2009, while the appeal of the dismissal was still
pending, the district court denied a motion to dismiss the crew cases on forum non
conveniens grounds. Believing that the denial of the motion to dismiss the crew cases
changed the circumstances surrounding the prior dismissal of the passenger cases, the
representatives of the passengers filed a motion for relief from judgment with the
district court. See Fed. R. Civ. P. 60(b).
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The district court issued an order on the Rule 60(b) motion while the appeal of
its dismissal of the passenger cases was still pending. It held that due to the pendency
of the appeal, it lacked jurisdiction to rule on the motion for relief from judgment.
(R.19-251 at 1.) Even so, the court addressed the merits of the motion and wrote “to
advise the parties and the Eleventh Circuit Court of Appeals that if this Court had
jurisdiction, it would deny the Motion.” (Id.) The court explained that “[t]he Motion
is based on no just or equitable reason which warrants relief” (id. at 2), and its order
denying the motion to dismiss the crew cases on forum non conveniens grounds did
not mean that the continued application of its order dismissing the passenger cases
was no longer equitable. (Id. at 4.)
After review of the record, we conclude that the district court erred in holding
it lacked jurisdiction to consider the motion. We have held that a district court retains
jurisdiction to consider a Rule 60(b) motion for relief from judgment even after an
appeal of the judgment from which relief is sought has been noticed. See Parrott v.
Wilson, 707 F.2d 1262, 1266-67 n.8 (11th Cir. 1983) (citing Lairsey v. Advance
Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976); Ferell v. Trailmobile, Inc., 223
F.2d 697, 698-99 (5th Cir. 1955)). Nevertheless, because the motion does not assert
adequate grounds for relief from judgment, we conclude that the erroneous
jurisdictional ruling was harmless, and we affirm the denial of relief.
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The passengers’ representatives argue that the denial of the motion to dismiss
the crew cases created an automatic right, under 28 U.S.C. § 1369, for the passengers
to intervene in the crew cases. They argue that the denial established the Southern
District of Florida as the appropriate forum for resolving any claim arising out of the
crash of Flight 708 and constituted changed circumstances justifying relief under
Rule 60(b)(5) and/or (6). We agree, however, with the district court’s well-reasoned
analysis on page four of its order explaining that 28 U.S.C. § 1369 merely provides
the court with jurisdiction over all claims arising out of the disaster and that it
exercised that jurisdiction when it applied the doctrine of forum non conveniens to
dismiss the passenger cases. (R.19-251 at 4.) We agree that its denial of a motion to
dismiss the crew cases on forum non conveniens grounds did not make continued
application of its dismissal of the passenger cases inequitable. (Id.)
The district court had jurisdiction to consider the Rule 60(b) motion, but the
motion did not assert appropriate grounds for relief from judgment. Therefore, we
vacate denial of the motion for want of jurisdiction, and amend the order to deny the
motion on the merits. We affirm the order as amended.
ORDER AMENDED AND AFFIRMED.
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