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. CESSNA AIRCRAFT COMPANY; PRATT & WHITNEY CANADA, INC., Defendants - Appellees. No. 97-3164

ORDER Filed November 10, 1998
Before TACHA, McWILLIAMS, and KELLY, Circuit Judges

.

Appellee’s motion to publish the order and judgmentfiled on September 18, 1998, is granted. The published opinion is att ached 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 Tenth Circuit 

### SEP 18 1998 

### PATRICK FISHER Clerk PUBLISH 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. CESSNA AIRCRAFT COMPANY; PRATT & WHITNEY CANADA, INC., Defendants - Appellees. No. 97-3164

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D. Ct. No. 96-1269-MLB)
Catherine B. Slavin, Wolk & Genter, Philadelphia, P ennsylvania (Ken. M. Peterson, Morris, Laing, Evans, Brock & Kennedy, Wi chita, Kansas, with her on the briefs), appearing for Appellant. John C. Nettels, Jr., Morrison & Hecker, Wichita, K ansas, 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 & R ice, L.L.C., Kansas City, Missouri, with him on the brief), appearing for App ellee Pratt & Whitney Canada, Ltd.- 2 -

Before TACHA , McWILLIAMS , and KELLY , Circuit Judges.

TACHA , Circuit Judge.
This case arises from a plane crash that occurred i n France and killed the pilot, Cyril Gschwind. Defendants, the Cessna Airc raft Company and Pratt & Whitney Canada, moved for dismissal based on forum non conveniens. The district court granted their motion, finding that F rance would be a significantly more convenient forum for this dispute. We take ju risdiction of the plaintiff’s appeal pursuant to 18 U.S.C. § 1291 and affirm. On August 16, 1993, Cyril Gschwind, a French citize n living in Belgium, died when the Cessna Caravan 208B that he was pilot ing crashed near Cannes, France. At the time of his death, the decedent was the European distributor for Cessna Caravan Aircraft. His company, Aviation & S ervices 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, wh ich was investigated by French authorities. The aircraft involved in th e accident had only approximately fifty hours of actual flight time; no maintenance had been- 3 -

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 thatGschwind kept money that was to be used for the purchase of a Cessna aircraf t. This evidence, along with a note written by Mr. Gschwind to a business associat e 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 do n’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 f amily (wife & baby). Appellant App. at 295. Mr. Gschwind’s widow, Virginie Gschwind, brought th is wrongful death action against Cessna, the Kansas manufacturer of the Caravan 208B aircraft, Pratt & Whitney Canada, a Quebec company that manuf actured the engine used in the Caravan, and Hartzell Propeller Inc., an Ohio c ompany that makes some (but not all) of the propellers for the Caravan aircraft s. Plaintiff based her action on various product liability and negligence claims. T he parties eventually dismissed- 4 -

Hartzell from the case by stipulation. The Plaintiff sued in the Court of Common Pleas forMontgomery County, Ohio, and the Defendants removed to federal court. Defendant Cessna then filed a motion to dismiss on the grounds offorum non conveniens or for a change of venue to the U.S. District Court for the District o f 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 o f a transfer to the District of Kansas. The case was transferred to the District o f 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 employee s, 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) wa ive any limitations defenses that would not have been available to them had plai ntiff initiated her litigation in France on the same day she filed her complaint in O hio; (4) transport all physical evidence brought from Europe back to France; (5) vo luntarily enter their appearance before the court when plaintiff initiate s her litigation in France; and- 5 -

(6) consent to reinstatement of this case in its pr esent posture in the event that the French courts refuse to accept jurisdiction over th e 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 thCir. 1993). If the answer to either of these ques tions is no, the forum
non conveniens doctrine is inapplicable. If, however, the answerto both questions is yes, the court goes on to weigh the pr ivate 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 atte ndance of willing non-party witnesses; (4) possibility of a view of the premise s, if appropriate; and (5) all other practical problems that make trial of the cas e easy, expeditious and inexpensive. See Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508 (1947). The public interest factors include: (1) administrative diffic ulties of courts with congested- 6 -

dockets which can be caused by cases not being file d at their place of origin; (2) the burden of jury duty on members of a community w ith no connection to the litigation; (3) the local interest in having locali zed controversies decided at home; and (4) the appropriateness of having diversity cas es 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 foru m.” 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 intere st 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 i n its consideration of the availability of an alternate forum, its determinati on that French law will govern the case, and its weighing of the private and publi c 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 decis ion to grant or deny a motion for forum non conveniens is as follows:- 7 -

The forum non conveniens determination is committed to the sound discretion of the trial court. It may be rev ersed only when there has been a clear abuse of discretion; wh ere the court has considered all relevant public and privat e interest factors, and where its balancing of these factors i s reasonable, its decision deserves substantial deference. Id. at 257. Nonetheless, appellate review is not perf unctory; 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 errorin 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 thatthe 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 thCir. 1991). In this case, Defendants agreed to be subject to su it in France. That concession is generally enough to make the alternat ive forum available. See Piper , 454 U.S. at 254 n.22 (“Ordinarily, this requireme nt 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- 8 -

France an available alternative forum where the def endants had agreed to French jurisdiction); R. Maganlal & Co. v. M.G. Che m. Co ., 942 F.2d 164, 167 (2d. Cir. 1991) (finding India was adequate and ava ilable forum where defendant agreed to submit to Indian court jurisdic tion); Contact Lumber Co. v. P.T. Moges Shipping Co., Ltd. , 918 F.2d 1446, 1450 (9 thCir. 1990) (agreement to be subject to jurisdiction of Philippine courts established available alternate forum). Plaintiff points out that there was no evi dence that the French courts would in fact accept jurisdiction, even with Defend ants’ consent. Defendants certainly would have greatly assisted this court’s review by providing evidence of relevant French law. Nevertheless, the districtcourt determined that France is an available alternate forum, and, for several r easons, we find no clear error in this conclusion. First, French law recognizes product liability and wrongful death actions,

see Martindale-Hubbell, France Law DigestinMartindale-Hubbell International Law DigestFRA-31 (Coudert Brothers and Coudert Freres eds., 1998); Piper , 454 U.S. at 254 n.18 (“Rules roughly equivalent t o 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 againstdefendants in French courts- 9 -

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 Kansa s if the French courts refuse jurisdiction. That condition, combined with the co urt’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 Internat ional, Inc. , the case cited by Plaintiff. See Mercier v. Sheraton Int’l, Inc. , 935 F.2d 419, 426 (1 stCir. 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 Fren ch court system is adequate. First, Plaintiff’s brief implies that th e French system is inadequate because of the delay that might be involved in a Fr ench 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 differe nces 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 s ufficiently harmful of due process to prevent dismissal on the ground of forum non conveniens

. . . .- 10 - . . . . . . . . The French proceeding remains adequate, eve n 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 allof their limitations defenses in the foreign country. Instead, the district court only required that Defendants waive limitations defenses that would not have been avail able 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 thCir. 1987). Moreover, the remedy provided by the alternate foru m 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.- 11 - B. Plaintiff next asserts that the district court erre d in its determination that, under applicable choice of law principles, French l aw will govern the case. As we noted, choice of law is a threshold determinatio n for application of forum
non conveniens . We review choice of law decisions de novo. Need ham v. Phillips Petroleum Co. of Norway , 719 F.2d 1481, 1483 (10 thCir. 1983). The district court correctly determined that Ohio’s cho ice of law jurisprudence governs this suit and carefully analyzed the factor s under Ohio law. After independently reviewing the record and applicable l aw, we agree with the analysis and conclusion of the district court. Pla intiff asserts that the district court gave too little weight to Kansas as the alleg ed situs of the tortious conduct and to the interest of Kansas in the litigation. The district court, however, properly recognized that there are numerou s places where the tortious conduct could have occurred, and it gave the intere st of Kansas adequate weight. C. Plaintiff’s third group of arguments relates to the district court’s weighing of the private interest factors. Plaintif f contends that the district court failed to assign sufficient weight to the fac t that all of the evidence relating to the aircraft’s component certification, and much of the evidence- 12 -

relating to Mr. Gschwind’s flight training and busi ness dealings, is located in the United States. The district court analyzed thi s evidence when considering the first private interest factor: relative ease of access to sources of proof. With respect to the component certification and fli ght training records, the district court made the following conclusion: “ The parties themselves, their employees and records, are equally accessible in bo th France and Kansas because the parties are subject to personal jurisdi ction 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 facto r favored Defendants because most of the evidence relevant to the defend ants’ claim that Mr. Gschwind was either contributorily negligent or com mitted suicide was more readily available in France. This evidence include d, among other things, accounts of the decedent’s business dealings. Alth ough Plaintiff claims that much of the business-related evidence is in the Uni ted States, the district court found that the decedent was doing business primaril y in Europe. We do not find this conclusion clearly erroneous. Furthermor e, because the district court performed a reasoned analysis of this factor, we fi nd that the district court did not abuse its discretion in weighing it in favor of Defendant. Plaintiff further argues that the district court er red by failing to state the- 13 -

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 r ecognition on the part of the district court that a foreign plaintiff’s choic e of forum merits some deference, but not as much as that of a domestic pl aintiff. 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 de gree of deference it accords a plaintiff’s choice. Indeed, the district court in this case expressly eschewed such an illus ory exercise, stating frankly that it was “impossible to quantify ” the applicable level of deference. . . . Specifically, the court stated that defendants must establish a “strong pre ponderance 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 discret ion by the district court. Plaintiff also argues that the district court erred in weighing the private interest factors because it did not consider that C essna, a party seeking dismissal, was a forum resident. Plaintiff contend s that this fact should have weighed heavily against dismissal. It is true thata forum resident should have to make a stronger case than others for dismissal b ased on forum non- 14 -

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 fu rther diluted by the fact that Cessna is an international organization; the fact t hat 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-base d corporation. See id. Furthermore, Cessna’s residency did weigh against i t 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 excessi vely 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 “administrativ e difficulties” factor in favor of Defendants. With respect to this factor, the di strict court said that- 15 -

“[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 s ix months.” Dist. Ct. Mem. & Order, at 27. According to Plaintiff, it is unfa ir 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. Th e court was not referring to congestion in this particular case, but rather abuild-up of motions and cases before the District of Kansas as a whole. Under Pi perand Gulf Oil , it is proper for the district court to consider the administrati ve difficulties this case would pose to the District of Kansas in deciding the forum non conveniens issue. Next, Plaintiff asserts that the district court pla ced too much reliance on its unfamiliarity with French law. That considerat ion 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 thCir. 1993). Considering, however, that we have de termined that the district court did not err in weighing the admi nistrative burden against the plaintiff, along with the fact that France had a gr eater “localized” interest in the matter, it can hardly be said that the district cou rt relied solely on its unfamiliarity with French law. We find the distric t court’s analysis of the- 16 -

factors to be reasonable. There is no abuse of dis cretion with regard to the public interest factors. II. Plaintiff’s second argument is that Defendants fail ed to provide a factual record sufficient to support a finding that the pub lic and private interests weighed in favor of dismissal. In Piper , the Supreme Court said: [The Court of Appeals] suggested that defendants se eking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the t estimony these witnesses would provide if the trial were hel d 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 c ompulsory process, and thus are difficult to identify or inte rview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide e nough 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 p arty 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 enabl e 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 c aused the crash that gave rise to the lawsuit, as Defendants here d o. In Lacey , however, the- 17 -

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 provi ded 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. Admitte dly, Defendants have presented a bare minimum of evidence necessary for the court to conduct an informed balancing of factors. This court certainl y would have benefitted from additional evidence in the record. Nevertheless, i n 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 i ssue with the district court’s conclusion that most sources of proof relevant to D efendants’ 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 fi nd the district court’s- 18 -

conclusion with regard to this evidence clearly err oneous. Plaintiff also contends that there is no record evi dence for the fact that the decedent regularly conducted business in France. N ot 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 findin g France to be an available alternate forum or in balancing the relevant privat e and public interest factors in this case. Furthermore, the factual findings of th e district court are not clearly erroneous. We AFFIRM.