Ellen Lumenta, Individually and as Personal Representative of the Estate of Roy Meyers Revelino Nawawi v. Bell Helicopter Textron, Inc., Bell Helicopter Korea Inc., Bell Helicopter Corporation, Bell Helicopter International Inc., Bell Helicopter International Sales Corporation, Pratt & Whitney and United Technologies Corporation

Opinion issued August 27, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00207-CV
———————————
ELLEN LUMENTA, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF ROY MEYERS REVELINO
NAWAWI, DECEASED, Appellant

V.

BELL HELICOPTER TEXTRON, INC., BELL HELICOPTER
CORPORATION, BELL HELICOPTER INTERNATIONAL SALES
CORPORATION, BELL HELICOPTER INTERNATIONAL, INC., BELL
HELICOPTER KOREA, INC., PRATT & WHITNEY, AND
UNITED TECHNOLOGIES CORP., Appellees

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2013-45235A
 MEMORANDUM OPINION

Appellant, Ellen Lumenta, individually and as personal representative of the

estate of Roy Meyers Revelino Nawawi (“Nawawi”), deceased, challenges the trial

court’s order dismissing, under the doctrine of forum non conveniens,1 her

wrongful death and survival claims against appellees, Bell Helicopter Textron,

Inc., Bell Helicopter Corporation, Bell Helicopter International Sales Corporation,

Bell Helicopter International, Inc., Bell Helicopter Korea, Inc. (collectively,

“Bell”), Pratt & Whitney (“Pratt”), and United Technologies Corporation

(“United”). In four issues, Lumenta contends that the trial court erred in denying

her motion for continuance, granting appellees’ motion for protection from

discovery, and dismissing her claims against appellees.

We affirm.

Background

In her first amended petition, Lumenta, who is a citizen of the Republic of

Indonesia, alleged that on August 30, 2011, her son, Nawawi, also a citizen of

Indonesia, was a passenger on a helicopter that crashed on Dua Saudera Mountain

in Bitung, North Sulawesi, Indonesia. She also alleged that the helicopter’s

avionics, power train, and instrumentation and navigational systems were

defective, proximately causing the crash and the death of Nawawi, seven other

1
See TEX. CIV. PRAC. & REM. CODE § 71.051 (Vernon 2008).

2
passengers, the pilot, and the engineer. Lumenta further alleged that Bell was

responsible for the overall design, construction, and maintenance of the helicopter;

Pratt was “secondarily responsible” for the engines; and, Honeywell and Northern

Airborne Technology (“NAT”) 2 were “responsible for the avionics, including an

early warning system that should have warned the pilot[] of approaching dangerous

obstacles, such as mountains, but utterly failed to do so.” She asserted claims for

products liability, negligence, and gross negligence against numerous defendants,

including appellees.

Bell filed a motion to transfer venue and an answer subject thereto. In its

motion to transfer, Bell argued that venue was not proper in Harris County because

it was not a location of any of the defendants’ principal offices, not the site of the

“alleged wrong,” and not where the helicopter was designed. Bell asserted that

venue was proper in Tarrant County, Texas. In its answer, Bell generally denied

the allegations. Pratt and United also answered, generally denying the allegations

and asserting various affirmative defenses.

Subsequently, Bell filed a motion to dismiss Lumenta’s claims under the

doctrine of forum non conveniens (the “FNC motion”). In its FNC motion, Bell

asserted that “Indonesia is an available, adequate, and alternate forum.” And it

argued that the private interests of the parties and the public interest of the state

2
Honeywell and NAT are not parties to this appeal.

3
overwhelmingly favor presenting this case in Indonesia because Lumenta’s claims

“center on a series of events that occurred within the jurisdiction of the Indonesian

courts and involve[] Indonesian citizens.”

Bell noted that on August 3, 2011, Nawawi, an Indonesian citizen, “boarded

a Bell Helicopter at Sam Ratulangi Airport (also known as, Manado International

Airport) in Manado, North Sulawesi, Indonesia.” Of the seven other passengers on

board, three were Indonesian, two were Australian, and two were South African.

The pilot and the engineer were also Indonesian. The helicopter, operated by PT

Nyamen Air and chartered by PT Nusa Helmahera Mineral, both based in

Indonesia, was bound for Gosowong, Halmahera Island, Indonesia. Minutes after

takeoff, it crashed into the side of Dua Saudera Mountain in Bitung, North

Sulawesi, Indonesia, approximately twenty-five kilometers southeast of the

departure site. The Indonesian National Transportation Safety Committee (the

“INTSC”) investigated the site and recovered the wreckage, which remains in

Indonesia.

Bell argued that Indonesia is the forum with the most significant contact

with the lawsuit because Indonesia is the site of the crash; the helicopter wreckage;

the pilot records and flight logs; and the maintenance records. Moreover, all the

“key witnesses” are in Indonesia, including the INTSC representatives, who

conducted the official investigation of the crash and recovery of the wreckage; the

4
Manado Airport employees, who tracked and communicated with the helicopter;

the mechanics, who serviced the helicopter; and all the employees of the

companies that owned, chartered, maintained, and operated the helicopter. Bell

asserted that the “key witnesses and evidence” would be “beyond the subpoena

power of any Texas court” and the “cost, time, and scheduling difficulties to obtain

evidence and present witness testimony would be far greater if the case were tried

in Texas.”

In support of its FNC motion, Bell attached the INTSC’s “Aircraft Accident

Investigation Report,” in which it concluded:

• The aircraft was airworthy prior to the accident and there was no
pilot report of any system malfunction during the flight.
• The crew had a valid license and medical certificate.
• The pilot was fasting on the day of [the] accident.
• The aircraft flew via direct track to Gosowong, which was not a
published VFR [Visual Flight Rules] route.
• The wreckage and impact analysis indicated that the engine, main
and tail rotors were functioning properly during impact.
• The weather at the accident site prevented a flight [from being]
performed under VFR.
• The flight was conducted under VFR while the weather was below
the VFR minima.

The INTSC classified the collision as a “Controlled Flight into Terrain (‘CFIT’),”

meaning that an “airworthy aircraft, under [the] control of the pilot, un-

intentionally collided with terrain.” Bell also attached to its motion the affidavit of

5
Ignatius Andy, a practicing attorney in Indonesia and an expert on Indonesian civil

and commercial litigation, who testified that Indonesia is an adequate alternate

forum in this case. Pratt and United joined Bell’s FNC motion, but did not file

separate evidence.

Bell, in conjunction with its FNC motion, filed a motion for protection,

seeking to stay “merits discovery” pending the trial court’s ruling on its FNC

motion. Bell asserted that a stay was necessary to prevent undue burden and the

unnecessary expense of participating in discovery on the merits before the trial

court ruled on the threshold FNC issue, which could end the litigation. Pratt and

United filed a motion in support of Bell’s motion for protection.

In her response to appellees’ collective motion for protection, Lumenta

asserted that the Texas Rules of Civil Procedure provide that “discovery shall not

be abated by [the] pendency of a motion to transfer venue.”3 And she argued that

“all discovery” was relevant to the FNC motion because the parties needed to

ascertain the “whereabouts of the wreckage” and “the key liability witnesses,”

“what they [were] going to testify to,” and “any evidence of design defects, as well

as the manufacturing and maintenance product defects [sic] of the helicopter.” She

asserted that the FNC motion would “take several years to resolve.”

3
See TEX. R. CIV. P. 88.

6
 On December 16, 2013, the trial court, at a hearing on appellees’ motion for

protection, “grant[ed] the motion with regard to merits discovery on the case in its

entirety, . . . except that for discovery related to forum non conveniens.”

On February 6, 2014, Lumenta, in Texas, took the deposition of Harold

Barrentine, a Bell safety investigator, who had previously flown to Indonesia at the

request of the INTSC and assisted with the investigation of the crash. And, on

February 7, 2014, Lumenta filed a verified motion to continue the hearing on

appellees’ FNC motion, which was set for February 10, 2014, in order to review

Barrentine’s testimony and respond to appellees’ FNC motion.

Lumenta, on February 10, 2014, filed a response to appellees’ FNC motion

and a supplement to her motion for continuance. In her response, she asserted that

Texas is the forum with the most significant connection to the lawsuit. And she

argued that Indonesia “does not provide an adequate remedy at law and is not an

adequate alternative forum” because the courts of Indonesia have held that they do

not have jurisdiction over a lawsuit, as here, in which an “Indonesian citizen is

injured or killed by the negligence or product defect of a non-resident corporation.”

Rather, the “Indonesian citizen must go to the domicile of the negligent foreign

corporation . . . and sue them there.” Lumenta further asserted that the relevant

witnesses in this case are “[a]ll the American witnesses” who “handled the design,

manufacture, sale and maintenance” of the helicopter, power train, and

7
instrumentation and navigational systems, and who “investigated the crash on

behalf of appellees.” She stipulated that she would “pay the cost of moving the

wreckage from Indonesia to Texas for investigation and the trial” and use “only

Texas-based experts.”

In support of her response, Lumenta attached excerpts from the Central

Jakarta District Court’s judgments in Rukmi Indah Indiarti v. Bell Helicopter

Textron, Inc. 4 She also attached a letter from Arthur B. Childers, president of

Aviation Safety & Analysis of Washington, D.C., who recommended a “complete

investigation” of the helicopter wreckage. Based on his review of all the

information presented to him, Childers noted that there were “many reasons” for

the crash. And he explained that it would be necessary to “examine the wreckage

and interview the people associated with the manufacture, operation and

maintenance of the helicopter, both in the United States and Indonesia.” Childers

opined that “there will most probably be a larger number of relevant witnesses who

reside in the United States,” but he noted that it was “too early to make a precise

determination.” In her supplemental motion for continuance, Lumenta requested

ninety days to “prove up . . . the holding of the Indonesian Courts.”

4
Civil Case Numbers 97 and 144, dated September 23, 2005 and November 20,
2008.

8
 Also on February 10, 2014, the trial court granted appellees’ FNC motion

and dismissed Lumenta’s causes of action against them. In a separate order, the

trial court severed Lumenta’s claims against appellees into the instant lawsuit.

Forum Non Conveniens

In her second, third, and fourth issues, Lumenta argues that the trial court

erred in dismissing her claims against appellees under the doctrine of forum non

conveniens because she will now have to pursue her lawsuit in Indonesia, which

does not provide an adequate alternate forum, the pertinent private interest factors

establish that Texas is the most convenient forum, and the pertinent public interest

factors weigh in favor of Texas as the appropriate forum.

We review a trial court’s decision to dismiss a case under the doctrine of

forum non conveniens for an abuse of discretion. In re Gen. Elec. Co., 271 S.W.3d

681, 685 (Tex. 2008); Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 42–53

(Tex. App.—Houston [1st Dist.] 2010, pet. denied). A court abuses its discretion if

its decision is arbitrary, unreasonable, or made without reference to guiding

principles. Gen. Elec., 271 S.W.3d at 685. In the absence of findings of fact and

conclusions of law, as here,5 we imply that the trial court found all facts necessary

5
Although Texas Civil Practice and Remedies Code section 71.051 requires a trial
court to issue findings of fact and conclusions of law, the record provided to us
contains no such findings and conclusions. See TEX. CIV. PRAC. & REM. CODE
ANN. § 71.051(f). And the record does not reflect that Lumenta requested findings

9
to support its decision so long as they are also supported by the evidence. BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

The Texas Civil Practice and Remedies Code provides,

If a court of this state, on written motion of a party, finds that in the
interest of justice and for the convenience of the parties a claim or
action to which this section applies would be more properly heard in a
forum outside this state, the court shall decline to exercise jurisdiction
under the doctrine of forum non conveniens and shall stay or dismiss
the claim or action. In determining whether to grant a motion to stay
or dismiss an action under the doctrine of forum non conveniens, the
court may consider whether:

(1) an alternate forum exists in which the claim or action may be
tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state
would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of the parties
or otherwise, can exercise jurisdiction over all the defendants
properly joined to the plaintiff's claim;
(5) the balance of the private interests of the parties and the public
interest of the state predominate in favor of the claim or action
being brought in an alternate forum, which shall include
consideration of the extent to which an injury or death resulted
from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.

TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b) (Vernon 2008). Section 71.051

neither places the burden of proof on a particular party in regard to the above

or filed a notice of past-due findings. See Curtis v. Comm’n for Lawyer
Discipline, 20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

10
factors, nor does it require that a party prove each factor. Gen. Elec., 271 S.W.3d

at 686. Rather, section 71.051 “simply requires the trial court to consider the

factors, and it must do so to the extent the factors apply.” Id. at 687. “To the

extent evidence is necessary to support the positions of the parties, the trial court

must base its findings and decision on the weight of the evidence, and certainly is

entitled to take into account the presence or absence of evidence as to some issue

or position of a party.” Id.

Adequate Alternative Forum

Lumenta first argues that Indonesia is not an adequate alternative forum

primarily because the courts of Indonesia will not adjudicate wrongful death claims

against foreign defendants. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 71.051(b)(1)-(2).

“Ordinarily, an alternate forum is shown if the defendant is ‘amenable to

process’ in the other jurisdiction.” Gen. Elec., 271 S.W.3d at 688 (quoting Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 102 S. Ct. 252, 265 (1981)). “That

the substantive law of an alternative forum may be less favorable to the plaintiff is

entitled to little, if any, weight.” In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 678

(Tex. 2007). Although “[t]here may be circumstances where an alternate forum is

not adequate because the remedies it offers are so unsatisfactory that they really

comprise no remedy at all,” “comparative analyses of procedures and substantive

11
law in different forums should be given little weight in forum non conveniens

analysis because such analyses pose significant practical problems.” Gen. Elec.,

271 S.W.3d at 688. Thus, “a comparative analysis of the procedures, rights, and

remedies” available in Texas and Indonesia “should only be given weight” if

Indonesia “would in substance provide no remedy at all.” Id.; see also Pirelli Tire,

247 S.W.3d at 678 (“[A]n alternative forum is adequate if the parties will not be

deprived of all remedies or treated unfairly, even though they may not enjoy the

same benefits as they might receive in an American court.”) (citations omitted);

Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C., 204 S.W.3d

473, 483 (Tex. App.—Corpus Christi 2006, pet. denied) (“[P]rimary consideration

is whether the alternate forum entitles appellants to a remedy for their losses, even

if compensation for their injuries is less than what may be awarded in a Texas

court.”).

Here, Bell presented the trial court with the affidavit of Ignatius Andy, who

testified that he is licensed to practice law before all Indonesian courts, has spoken

on choice-of-forum issues, and has served as an expert witness in products-liability

cases and “on Indonesian Civil and Commercial Litigation law in various

international judicial proceedings.” Andy explained that an Indonesian party may

submit a civil claim against a foreign party in an Indonesian court, Indonesian law

does allow litigation of the subject matter of Lumenta’s lawsuit, and it provides for

12
a remedy. He noted that Lumenta “may submit claims for product liability,

negligence, or gross negligence” to the courts of Indonesia and recover actual and

punitive damages. 6 Further, “Indonesian courts have jurisdiction of the witnesses

and evidence in this case,” and appellees are amenable to service of process, which

may be accomplished through diplomatic channels. 7 Andy further explained that

Lumenta’s claims will not be barred by the Indonesian statute of limitations, which

will expire in thirty years, and the Indonesian legal system affords numerous

procedural safeguards, including adversarial presentation of oral and written

evidence, provisions for compelling unwilling witnesses to testify, and appellate

review. Andy noted that Indonesian courts follow the principle that “[t]he court

6
See Indonesian Consumer Protection Law No. 8 (1999); Indonesian Civil Law
(“ICC”), arts. 1365 (“Every tort/unlawful act causing damage to another person
shall oblige the person causing the damage to pay compensation.”), 1366
(“Everyone shall be responsible not only for damage caused by his act, but also for
damage caused by his negligence or imprudence.”), 1367(1) (“Everyone shall be
responsible not only for damage caused by his act alone, but also for damage
caused by any person on his responsibility or goods under his supervision.”), 1370
(“In the context of . . . negligence which causes death, . . . parents of the victim,
who usually earn a living out of the deceased’s earning, are entitled to claim for
compensation . . . .”).
7
See Circular Letter of the Chairman of the Supreme Court of the Republic of
Indonesia (May 11, 1991); Guidelines of the Administration and Judicature
Technical 21 (2007 ed.); Reglement op de Burgerlijke Rechtsvordering (Rv), art.
100 (providing, “[A] foreign party, who is a non-resident or who even does not
hold any actual dwelling place in Indonesia may be claimed before Indonesian
court in relation to his obligations . . . that must be performed in Indonesia or
anywhere else to an Indonesian.”).

13
shall assist the justice pursuer and strive to overcome all obstacles and barriers to

achieve the implementation of [a] simple, quick, and low cost proceeding.”8

Appellees noted that several United States District Courts have previously

concluded, in regard to the doctrine of forum non conveniens, that Indonesia is an

available and adequate alternate forum, “dismissing cases similar to the lawsuit at

bar.” See, e.g., Gonzales v. P.T. Pelangi Niagra Mitra Int’l, 196 F. Supp. 2d 482,

489 (S.D. Tex. 2002) (concluding, in personal injury suit brought by Ecuadorian

citizens against oil company headquartered in Texas for injuries sustained in

Indonesia, that Indonesian courts provided an “available and adequate forum”).

Lumenta asserts that “the Courts of Indonesia will not adjudicate this case.”

Rather, they “consistently hold” that when an Indonesian is “injured or killed as a

result of the negligence or product defect of a foreign corporation,” the “surviving

Indonesian must sue the foreign [d]efendant in its domicile or home state.” In

support of her assertion, she directs us to excerpts, which she attached to her

response to Bell’s FNC motion, taken from the Central Jakarta District Court’s

judgments in Rukmi Indah Indiarti v. Bell Helicopter Textron, Inc., Civil Case

Numbers 97 and 144, dated September 23, 2005 and November 20, 2008.

Lumenta asserted to the trial court below that the Jakarta District Court “expressly

8
See Law No. 48, arts. 2, 4 (2009).

14
held that there is no remedy available to an Indonesian Plaintiff suing a foreign

corporation for its negligence or product defect in the Indonesia Court,” as follows:

Considering, that speaking of the Court’s competence to
examine and adjudicate any civil case, the reference is to provision in
Article 118 of HIR, that says that a suit should be filed in the domicile
of the Defendants.

Considering, that in the case aquo the Defendants are domiciled
in the jurisdiction of the United States of America, in particular, in the
[S]tate of Texas.

Considering, that for that reason, the Central Jakarta District
Court has no jurisdiction to examine and adjudicate the case aquo in
harmony with the provisions of Article 118 of HIR.

We note that the excerpts of the judgments, which appear in the record

attached to Lumenta’s response, are missing pages and appear to be incomplete.

Regardless, contrary to Lumenta’s assertion, nothing in the language of the

excerpts provided conclusively establishes that all Indonesian courts “expressly

h[o]ld that there is no remedy available to an Indonesian Plaintiff suing a foreign

corporation for its negligence or product defect in [an] Indonesia Court.” And the

record does not reflect that Lumenta submitted anything in the trial court to explain

the applicability of “Article 118 of HIR” to this case. 9

9
Although Indiarti sued Bell in Texas and appealed the district court’s summary
judgment entered against her, after her case had been “dismissed twice for want of
jurisdiction in Indonesia,” the grounds for the dismissal were not discussed in the
opinion of the court of appeals. See Idniarti v. Bell Helicopter Textron, Inc., No.
02-12-00045-CV, 2013 WL 1908291, at *1 (Tex. App.—Fort Worth May 9, 2013,

15
 Appellees presented evidence demonstrating that Indonesia will allow

Lumenta recovery on her claims. Thus, the trial court could have reasonably

concluded that Indonesia is an adequate alternative forum. See Gonzales, 196 F.

Supp. 2d at 489; see also Berg v. AMF Inc., 29 S.W.3d 212, 217 (Tex. App.—

Houston [14th Dist.] 2000, no pet.) (concluding appellees demonstrated adequate

remedy under Canadian law because it allowed for some recovery).

Private and Public Interest Factors

Lumenta next argues that the balance of the pertinent private and public

interest factors weigh in favor of Texas as the appropriate forum because there are

a greater number of “key witnesses” in the United States, the helicopter was

designed and manufactured in Texas and was subject to United States Safety

regulations, and she will obtain a more expedient resolution of her suit in Texas.

See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b)(5).

Generally, the private interest factors that are to be considered are the

relative ease of access to proof, the availability of compulsory process for the

attendance of unwilling witnesses, the cost of obtaining willing witnesses, the

possibility of viewing the premises, and other practical problems that make a trial

easy, expeditious, and inexpensive. Gen. Elec., 271 S.W.3d at 691 (citing Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843 (1947)); In re Omega

pet. denied) (mem. op.). We note that the spelling of the plaintiff’s name, Rukmi
Indah Indiarti, or Idniarti, varies among the filings and judicial documents.

16
Protein, Inc., 288 S.W.3d 17, 20 (Tex. App.—Houston [1st Dist.] 2009, orig.

proceeding). The public interest factors to be considered are the administrative

difficulties related to court congestion, burdening the people of a community with

jury duty when they have no relation to the litigation, local interest in having

localized controversies decided at home, and the appropriateness of trying a case in

the forum that is at home with the law that governs the case. Gen. Elec., 271

S.W.3d at 691 (citing Gilbert, 330 U.S. at 508–09, 67 S. Ct. 839); Omega Protein,

288 S.W.3d at 21. Although the private and public interest factors are “appropriate

for most transfer cases, they are not necessarily exhaustive or exclusive” and

“none . . . can be said to be of dispositive weight.” In re Volkswagen of Am., Inc.,

545 F.3d 304, 315 (5th Cir. 2008).

Appellees assert that Indonesia is the forum with the most ease of access to

proof. It is undisputed that Indonesia is the site of the crash; the helicopter

wreckage; the INTSC representatives, who conducted the official investigation of

the crash and recovery of the wreckage; the Manado Airport employees, who

tracked and communicated with the helicopter pilot; the pilot records and flight

logs; the mechanics, who serviced the helicopter, and their maintenance records;

and the companies that owned, chartered, maintained, and operated the helicopter,

along with their records.

17
 Lumenta asserts that the primary liability issue in her case is whether the

instrumentation and navigation systems of the helicopter were “working properly”

at the time of the crash. Therefore, the “key to the liability phase of the case are

the Bell witnesses, who know the design, manufacture[,] and assembly of the

Power Train and the Navigation[] and Instrumentation system of the helicopter.”

She further asserts that all of these witnesses are “Americans, living in the U.S.,”

and she directs us to Childers’s letter, in which he generally opines that there will

“most probably be a larger number of relevant witnesses who reside in the United

States.”

In support of her argument that Texas is the forum with the most significant

connection to the lawsuit, Lumenta relies on Vinson v. American Bureau of

Shipping. 318 S.W.3d 34. In Vinson, the plaintiff, who was a United States citizen

and an Alabama resident, suffered personal injuries when a derrick collapsed while

he was working on a drilling rig located on a barge in a Singapore shipyard. Id. at

38. The plaintiff sued his employer, which also owned the rig, and two of the

derrick manufacturers—all United States companies headquartered in Houston—

for products liability and negligence. Id. at 39. The defendants moved to dismiss

the lawsuit on the ground of forum non conveniens, asserting that Singapore, and

not Houston, was the forum with the most significant connection to the lawsuit. Id.

at 38–39. On appeal from the trial court’s dismissal, we held that although

18
Singapore constituted an adequate alternate forum, the private and public interest

factors weighed in favor of the Houston forum. Id. at 44, 53. We explained that

the plaintiff was a United States citizen suing three Houston-based companies for

injuries he sustained on a vessel that happened to be in Singapore at the time of his

injuries, but was, at the time of trial, located in the Gulf of Mexico. Id. at 46.

Further, the derrick collapse was investigated by a Houston firm and the relevant

witnesses and documents were located in Houston. Id. at 48. And, nearly all of

the plaintiff’s medical care took place in Texas and Alabama. Id. Notably, the

employer/owner-defendant conceded that there were no witnesses in Singapore

with relevant knowledge of the collapse, the design or fabrication of the derrick,

the condition of the barge, or the investigation. Id. And the evidence showed that

the witnesses employed by the defendants frequently traveled between Texas and

Singapore. Id. at 49.

Here, unlike in Vinson, it is undisputed that Lumenta, the plaintiff, is a

citizen of the Republic of Indonesia, as was the decedent; the crash occurred in

Indonesia; Indonesian officials conducted the investigation of the crash and

recovered the wreckage, which remains in Indonesia; the mechanics, who

maintained the helicopter, and the maintenance records, are in Indonesia; the

Manado Airport employees, who tracked and communicated with the pilot of the

helicopter, which crashed three minutes after take-off, are in Indonesia; and the

19
companies that owned, chartered, maintained, and operated the helicopter, and

their records, are in Indonesia.

In In re Air Crash Disaster Over Makassar Strait, Sulawesi, an Indonesian

airliner, traveling between the islands of Java and Sulawesi, disappeared over the

Makassar Strait. No. 09-cv-3805, 2011 WL 91037, at *1 (N.D. Ill. Jan. 11, 2011).

When the wreckage was located nine days later, all 102 passengers and crew on

board were presumed dead. Id. The Indonesian government, with assistance from

the United States National Transportation Safety Board, conducted an investigation

and issued a report citing “inadequate maintenance” and “pilot error” as

contributing causes of the crash. Id. The investigators concluded that the

airplane’s Inertial Reference System (“IRS”) had malfunctioned, which led to pilot

error. Id. Representatives of the decedents brought, in the United States District

Court, claims, alleging strict products liability and negligence, against several

United States corporations, including the manufacturer of the airplane, the

manufacturer of its IRS, a company in charge of its maintenance, and the owner

and lessor of the plane. Id. at *2. None of the decedents were United States

citizens, nor were their representatives. Id.

The Air Crash defendants moved to dismiss the suit on the ground that

Indonesia was the more convenient forum, asserting that much of the essential

evidence was in Indonesia. Id. at *3. The plaintiffs argued that the United States

20
was the more convenient forum because crucial evidence, including documents

pertaining to the design and manufacture of the plane and its component parts, as

well as testimony from those individuals who participated in these processes, were

located in the United States. Id. at *6. The court concluded that the plaintiffs’

argument “carried little weight” because the defendants had agreed to make

available all evidence in their possession at the direction of the Indonesian forum.

Id. (citing Clerides v. Boeing Co., 534 F.3d 623, 629 (7th Cir. 2008)); see also

Piper Aircraft, 454 U.S. at 258–59, 102 S. Ct. at 267 (upholding forum non

conveniens dismissal in case arising from plane crash in Scotland, notwithstanding

evidence relevant to products-liability claims in U.S. manufacturer’s possession).

The court noted that, conversely, those in possession of much of the remaining

proof, namely, the owner of the airplane and the Indonesian governmental

investigators, were in Indonesia and had not agreed to produce evidence in the

litigation. Id.

The court further noted that the Air Crash plaintiffs alleged that the airplane

had not been adequately maintained and almost all of the evidence about the

airline’s maintenance operations, and the government’s investigation thereof, was

in Indonesia. Id. Thus, the court concluded that the location of the sources of

proof weighed in favor of the Indonesian forum. Id. (citing Clerides, 534 F.3d at

21
629 (reaching similar conclusion where evidence related to airline, flight crew, and

post-accident investigation in foreign forum)).

Here, as in Air Crash, although Lumenta asserts that the crucial evidence

concerns the design and manufacture of the helicopter and its component parts,

Bell stipulated in the trial court that, “to the extent [it] is in possession, custody, or

control of any witnesses or evidence relevant to [Lumenta’s] causes of action,” it

will “make such evidence and witnesses available to [Lumenta] in Indonesia.” See

id. Although Lumenta stipulated that she would “pay all the costs of travel of

defendants’ counsel to go to Indonesia for depositions,” this would not resolve the

matter of the costs pertaining to the Indonesian witnesses’ travel to Texas.

Also, as in Air Crash, Lumenta asserts that the primary issue presented in

this case is whether the “instrumentation or navigation system of the helicopter”

was “working properly” at the time of the crash. See id. And again, we note that

the mechanics, who maintained the helicopter; the maintenance records; the

companies that owned, maintained, and operated the helicopter, and their records;

and the Indonesian officials who conducted the investigation of the crash, are in

Indonesia. See id. Thus, the location of the sources of proof weighs in favor of the

Indonesian forum.

Similarly, the location of numerous witnesses beyond the compulsory

process of Texas courts weighs in favor of the Indonesian forum. See id. at *7; see

22
also Gen. Elec., 271 S.W.3d at 691–92 (citing TEX. R. CIV. P. 176.3 (“A person

may not be required by subpoena to appear or produce documents or other things

in a county that is more than 150 miles from where the person resides or is

served.”)). Appellees assert that although “compulsory process may be available

under the Hague Convention, such process is time consuming, uncertain as to

result, and unlikely to bear fruit in time for trial.” See Pirelli Tire, 247 S.W.3d at

678–79. We note that Indonesia is not a signatory to the Hague Convention on

Service Abroad. See Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20

U.S.T. 361, art. 1; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,

698, 108 S. Ct. 2104, 2107 (1988) (noting purpose of Hague Service Convention is

“to provide a simpler way to serve process abroad, to assure that defendants sued

in foreign jurisdictions would receive actual and timely notice”).

Conversely, Andy testified that Indonesian courts have the power to compel

the appearance of the Indonesian witnesses. And the witnesses with knowledge of

the design and manufacture of the helicopter who reside in the United States will

be available in the Indonesian forum in light of appellees’ willingness to produce

them. See Air Crash, 2011 WL 91037, at *7. Thus, the comparative ability to

produce the relevant witnesses also weighs in favor of the Indonesian forum. See

id. (citing Piper Aircraft, 454 U.S. at 242, 102 S. Ct. at 259 (noting importance of

23
witnesses who could testify regarding maintenance of aircraft, training of pilot, and

investigation of crash)).

Further, appellees assert that there remain named defendants in Indonesia

who have not been served, “making it impossible for Bell to seek indemnification

against them for their alleged contribution to [Lumenta’s] damages.” See Air

Crash, 2011 WL 91037, at *7 (noting no personal jurisdiction because airline had

never operated in United States). In Piper Aircraft, as here, the plaintiffs alleged

that manufacturing defects caused a plane crash; the defendants asserted that pilot

error and owner negligence caused the crash. 454 U.S. at 259, 102 S. Ct. at 267.

Because the defendants could implead the airplane’s owner in the foreign

jurisdiction, rather than having to seek indemnity in a separate suit, the Supreme

Court held that “the problems posed by the inability to implead potential third-

party defendants clearly supported holding the trial in [the foreign forum].” Id.

Thus, this factor weighs in favor of an Indonesian forum.

Appellees also assert that the “cost, time, and scheduling difficulties to

obtain evidence and present witness testimony would be far greater if the case were

tried in Texas.” See In re Ensco Offshore Int’l Co., 311 S.W.3d 921, 926 (Tex.

2010). The United States Court of Appeals for the Fifth Circuit has held that

“[w]hen the distance between an existing venue for trial of a matter and a proposed

venue . . . is more than 100 miles, the factor of inconvenience to witnesses

24
increases in direct relationship to the additional distance to be traveled.” In re

Volkswagon AG, 371 F.3d 201, 204–05 (5th Cir. 2004). The court noted that it is

an “obvious conclusion” that it is more convenient for witnesses to testify at home

and “[a]dditional distance means additional travel time; additional travel time

increases the probability for meal and lodging expenses; and additional travel time

with overnight stays increases the time which these fact witnesses must be away

from their regular employment.” Id. at 205. Here, as to the witnesses identified by

appellees, it is apparent that it would be more convenient for them if this case is

tried in Indonesia. Moreover, Lumenta, herself, currently resides in Indonesia.

And, again, the witnesses with knowledge of the design and manufacture of the

helicopter who reside in the United States will be available in the Indonesian forum

in light of appellees’ willingness to produce them. See Air Crash, 2011 WL

91037, at *7.

Finally, in regard to the possibility of viewing the premises, given that the

crash occurred in Indonesia, this factor weighs in favor of the Indonesian forum.

And Andy testified that the Indonesian courts will provide for inspection of the

premises.

Lumenta argues that appellees did not “provide enough information to

enable the [trial court] to balance the parties’ interest[s]” because they did not

“furnish the [trial court] with a list of witnesses, their location, the substance of

25
their expected testimony, and the costs of producing such witnesses for depositions

[and] trial.” However, the forum non conveniens statute does not place the burden

of proof on either party. ENSCO Offshore Int’l, 311 S.W.3d at 927. We note that

neither party provided the trial court with a list of specific witnesses, the substance

of their testimony, or the costs of producing such witnesses. In General Electric,

the Texas Supreme Court explained that details regarding which witnesses would

be called and what evidence would be unavailable is not necessary in cases, as

here, in which the “practical problems of trying a personal injury case hundreds of

miles from the scene of the occurrence, the place where the lay witnesses reside,

and where most other evidence is located is manifest.” 271 S.W.3d at 691.

Lumenta further argues that the fact that appellees are domiciled in Texas is

“entitled to significant weight” because it is fair to infer that one’s own domicile is

not an inconvenient place to be sued. The presence of a corporate headquarters in

Texas, however, is an insufficient basis for keeping a non-resident’s suit in Texas

when, as here, all of the other factors favor another forum. See Omega Protein,

288 S.W.3d at 23; see also Volkswagen of Am., 545 F.3d at 315 (noting no single

factor of dispositive weight).

In sum, the record evidence establishes that most of the relevant documents

and witnesses in this lawsuit are located in Indonesia. Thus, we conclude that the

pertinent private interest factors weigh heavily in favor of an Indonesian forum.

26
 In regard to the pertinent public interest factors, Lumenta asserts, without

directing us to any evidence, that “[t]here is no doubt that this case can be more

quickly . . . resolved in Court in Texas than it can in the Courts of Indonesia.”

Andy testified that proceedings in the Indonesian district courts “usually take 6

months to complete,” and “[c]assation and civil review proceedings usually take 1

to 2 years.”

In regard to local interest, several factors indicate that Indonesian citizens

have a greater interest in this litigation: the crash giving rise to this lawsuit

occurred in Indonesia; the helicopter was owned and operated by an Indonesian

entity, subject to Indonesian flight regulations, and predominantly carrying

Indonesian citizens; an Indonesian governmental entity recovered the wreckage

and investigated the crash; and this lawsuit involves redress for a citizen of

Indonesia. Lumenta argues that the Texas forum has local interest in her lawsuit

because the helicopter, which she alleges was defective, was manufactured in

Texas and subject to United States regulations. That an allegedly defective product

is available does not create a stake in the resolution of this controversy. See

Volkswagen of Am., 545 F.3d at 318. That the citizens of Indonesia have extensive

connections with the events that gave rise to this suit weighs in favor of dismissal.

27
 Finally, we note that to the extent that there exists a conflict and a choice of

law question in this case that needs to be untangled, either forum, Texas or

Indonesia, would likely have to undertake such an analysis.

Accordingly, the trial court could have reasonably concluded that the

pertinent public interest factors weigh in favor of Indonesia as the appropriate

forum.

Remaining Considerations

Appellees assert that, without the necessary evidence and testimony, and the

ability to seek redress from other named defendants, their defense will be

prejudiced, resulting in substantial injustice. See TEX. CIV. PRAC. & REM. CODE

ANN. §.71.051(b)(3); Gen. Elec., 271 S.W.3d at 689 (“[R]equiring parties to

litigate a case such as this in Texas until it becomes clear that it is impossible to

defend the case due to unavailability of evidence and fact witnesses because they

are beyond the reach of compulsory process is a waste of private and public

resources.”). And the record does not demonstrate that Lumenta would suffer

substantial injustice as a result of the trial of her claims in Indonesia. See TEX.

CIV. PRAC. & REM. CODE ANN. § 71.051(b)(3).

Lumenta argues that the trial court’s dismissal will result in unreasonable

duplication of litigation because it results in two lawsuits: the Texas case against

the nonmoving defendants (Honeywell and NAT) would remain pending while a

28
new suit would be filed against appellees in Indonesia. See TEX. CIV. PRAC. &

REM. CODE ANN. § 71.051(b)(6). However, in General Electric, the Texas

Supreme Court held that the extent to which the trial court’s dismissal of part of an

action for forum non conveniens resulted in “fragmented or duplicated” litigation

did not turn on the trial court’s decision to grant the motions. 271 S.W.3d at 692–

93. Rather, it depended on the plaintiff’s own decision to file suits outside the

proper forum. Id. at 693.

Accordingly, the trial court could have reasonably concluded that the

remaining considerations weigh in favor of Indonesia as the appropriate forum.

In sum, the trial court could have reasonably concluded that Indonesia is an

adequate alternative forum and the pertinent public and private interest factors, and

the remaining considerations, weigh in favor of Indonesia as the appropriate forum.

Accordingly, we hold that the trial court did not err in granting appellees’ motion

to dismiss Lumenta’s claims under the doctrine of forum non conveniens. See

Gen. Elec., 271 S.W.3d at 685.

We overrule Lumenta’s second, third, and fourth issues.

Discovery and Motion for Continuance

In her first issue, Lumenta argues that the trial court erred in “granting

appellees’ motion for protection and, at the same time, denying [her] motion for

29
continuance” because the “net effect” was that she was not given a “reasonable

opportunity for discovery and development of the FNC facts.”

We review a trial court’s decision to deny a motion for continuance for a

clear abuse of discretion. Marchand, 83 S.W.3d at 800. A trial court abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law. Id.

A trial court may rule on a forum non conveniens motion only after a

hearing, with notice to all parties not less than 21 days before the date specified for

the hearing. TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(d). It “shall afford all

of the parties ample opportunity to obtain discovery of information relevant to the

motion prior to a hearing.” Id. A trial court may, however, “in the interest of

justice,” issue a protective order to “protect the movant from undue burden,

unnecessary expense, harassment, annoyance, or invasion of personal,

constitutional, or property rights.” TEX. R. CIV. P. 192.6(b); In re Alford

Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). Trial courts should limit

discovery when “the burden or expense of the proposed discovery outweighs its

likely benefit, taking into account the needs of the case, the amount in controversy,

the parties’ resources, the importance of the issues at stake in the litigation, and the

importance of the proposed discovery in resolving the issues.” Alford Chevrolet-

Geo, 997 S.W.2d at 181 (citing TEX. R. CIV. P. 192.4(b)). And a trial court may

30
limit discovery pending resolution of threshold issues, such as forum non

conveniens. Id.; see also Piper Aircraft, 454 U.S. at 258, 102 S. Ct. at 267 (noting

requirement of extensive investigation would defeat purpose of forum non

conveniens motion). Although a trial court has broad discretion to schedule and

define the scope of discovery, it abuses its discretion if it acts unreasonably. See In

re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998).

Here, Lumenta filed the instant suit on August 2, 2013 and then served

appellees with requests for disclosure. And she served Bell with interrogatories

and requests for production and admissions. In response, Bell produced Andy’s

affidavit and the INTSC crash reports. On November 20, 2013, appellees filed

motions for protection and for dismissal of Lumenta’s claims on the ground of

forum non conveniens.

The record shows that the trial court, at the December 16, 2013 hearing on

appellees’ motion for protection, orally granted the motion “with regard to merit

discovery on the case in its entirety,” but “except[ed] that for discovery related to

forum non conveniens.” The trial court instructed the parties to immediately

convene and determine “what’s forum non, and what’s merit.” The parties agreed

to meet preliminarily and that Lumenta would later submit interrogatories asking

appellees to list their witnesses. The trial court approved, noting that it “would

work with [the parties] if there [was] something that [was] intertwined” and needed

31
to be “flush[ed] out.” Bell asserts that on December 30, 2013, it responded to

Lumenta’s supplemental discovery requests, and, thereafter, she served no new

written discovery.

On February 6, 2014, Lumenta, in Texas, took the deposition of Harold

Barrentine, a Bell safety investigator, who had previously flown to Indonesia at the

request of the INTSC to assist in the investigation of the crash and was the only

U.S. resident involved in the investigation. The next day, Lumenta filed a verified

motion to continue the hearing on appellees’ FNC motion, requesting forty-five

days to review Barrentine’s testimony and respond to appellees’ FNC motion.

On February 10, 2014, Lumenta filed a response to appellees’ FNC motion

and a supplemental motion for continuance, requesting ninety days to “submit a

detail[ed] record of the Indiarti holdings.” Also, on February 10, 2014, the trial

court granted appellees’ FNC motion and dismissed Lumenta’s claims.

Lumenta argues that the trial court erred in granting appellees’ motion for

protection because it “ke[pt] [her] from engaging in necessary discovery on the

FNC motion.” The record shows, however, that the trial court expressly granted

appellees’ motion for protection “with regard to merit discovery on the case in its

entirety,” but “except[ed] that for discovery related to forum non conveniens.”

Thus, the trial court did not prohibit or restrict discovery related to the FNC

motion.

32
 Lumenta next argues that the trial court erred in denying her motion for

continuance because “it is patently clear that [she] was not given adequate time for

discovery.” Childers, in his letter, which Lumenta attached to her supplemental

motion, asserted that it would “take several months to examine the wreckage and

interview the people associated with the manufacture, operation and maintenance

of the helicopter, both in the United States and Indonesia.” And Lumenta asserts

that Barrentine “really knew nothing about the FNC merits,” which “illustrates

why [she] needed to depose other Bell witnesses from the U.S. and the [t]rial

[c]ourt seriously erred in not letting [her] do so.”

The record reflects that Lumenta, in October and November 2013, served

appellees with written discovery requests. Bell asserts that it responded to her

supplemental discovery requests on December 30, 2013, and thereafter she served

no new written discovery. The record does not show that Lumenta ever filed a

motion to compel or otherwise attempted to obtain any further written discovery.

In January 2014, she noticed Barrentine’s deposition, and the record does not

reflect that she sought to depose any other witnesses. Further, Lumenta did not, in

either her motion for continuance or supplement, specify the forum-non-

conveniens-related discovery that needed to be completed. Rather, she globally

sought more time and requested forty-five days to review Barrentine’s testimony

and respond to appellees’ FNC motion, and ninety days to “submit a detail[ed]

33
record of the Indiarti holdings.” Lumenta, in her motion for continuance, which

she filed three days before the February 10, 2014 hearing on appellees’ FNC

motion, argued that she could not respond to appellees’ FNC motion because “all

of the Defendants” had “not yet responded fully” to her requests for production and

she needed more time to review the transcript of Ballentine’s deposition.

However, the record shows that she filed her response to the FNC motion on

February 10, 2014.

In support of her argument that the trial court erred in denying her motion

for continuance, Lumenta relies on McInnis v. Mallia, 261 S.W.3d 197 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). In McInnis, however, the issue

presented was whether the trial court erred in granting the defendants a no-

evidence summary judgment without affording the plaintiff an “adequate time for

discovery” under the summary-judgment rules. Id. at 200 (applying TEX. R. CIV.

P. 166a(i)). Generally, a summary judgment is a decision on the merits. See

Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex. 1995). Whereas,

“forum non conveniens is a non-merits basis for dismissal because it is a

determination that the merits of the claims should be decided elsewhere.”

Schippers v. Mazak Props., Inc., 350 S.W.3d 294, 296 (Tex. App.—San Antonio

2011, pet. denied) (citing Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549

U.S. 422, 432, 127 S. Ct. 1184, 1192 (2007)). And a motion to dismiss for forum

34
non conveniens does not call for a detailed development of the entire case. Camejo

v. Ocean Drilling & Exploration, 838 F.2d 1374, 1380 n.17 (5th Cir. 1988).

Rather, it merely requires “enough information to enable the [trial] court to balance

the parties’ interests.” Piper Aircraft, 454 U.S. at 258, 102 S. Ct. at 267.

“The scope of discovery is largely within the discretion of the trial court.”

Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). And we must

defer to that discretion, absent abuse. See Colonial Pipeline, 968 S.W.2d at 941.

Here, the trial court’s decision to deny Lumenta’s motion for continuance was not

arbitrary or unreasonable and was not made without reference to guiding rules and

principles. See Marchand, 83 S.W.3d at 800.

Accordingly, we hold that the trial court did not err in granting appellees’

motion for protection and denying Lumenta’s motion for continuance.

We overrule Lumenta’s first issue.

35
 Conclusion

We affirm the order of the trial court.

Terry Jennings
Justice

Panel consists of Justices Jennings, Higley, and Huddle.

36