United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2019 Decided January 10, 2020

No. 18-7193

IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN ON 

MARCH 8, 2014,

ELIZABETH SMITH, AS PERSONAL REPRESENTATIVE OF THE 

SPOUSES, NEXT OF KIN, OTHER STATUTORY BENEFICIARIES,

AND THE ESTATES OF THE MH370 PASSENGERS (SEE 

COMPLAINT FOR STATUTORY BENEFICIARIES), ET AL.,

APPELLANTS

v.

MALAYSIA AIRLINES BERHAD, DOING BUSINESS AS MALAYSIA 

AIRLINES, ET AL.,

APPELLEES

Consolidated with 18-7195, 18-7196, 18-7197, 18-7198

Appeals from the United States District Court

for the District of Columbia

(No. 1:16-mc-01184)

Stephen F. Rosenthal argued the cause for appellants 

Thomas C. Gaspard, et al. With him on the briefs was Floyd 

A. Wisner.
2

Caitlyn E. Hubbard argued the cause for appellant 

Thomas Wood. With her on the briefs were Marianne M. 

Auld and Hugh G. Connor II.

Mary Schiavo was on the brief for appellants Elizabeth 

Smith, et al. Jodi W. Flowers entered an appearance.

Eric B. Wolff argued the cause for appellees. With 

him on the joint brief were Gregory F. Miller, Telly Andrews, 

and Richard A. Walker. Eric J. Rhine entered an appearance.

Before: WILKINS and RAO, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: This appeal arises out of the 

unexplained disappearance of Malaysia Airlines Flight 

MH370 somewhere over the Southern Indian Ocean in the 

early hours of March 8, 2014. A series of extensive searches 

and investigations conducted over more than four years 

yielded no definitive answers as to the cause of this tragedy, 

and all passengers and crew members on board the flight are 

presumed dead. Representatives of many of the passengers 

filed lawsuits in the United States asserting, inter alia, 

Montreal Convention claims against Malaysia Airlines 

Systems Berhad, Malaysia’s national airline at the time of 

Flight MH370, its current national airline, Malaysia Airlines 

Berhad, and the airlines’ insurers, as well as state law 

products liability and wrongful death claims against Boeing, 

which manufactured the aircraft in question in Washington 

state. 
3

Those lawsuits were centralized into a multidistrict 

litigation in the United States District Court for the District of 

Columbia and coordinated for pretrial purposes. Appellees 

moved jointly to dismiss for forum non conveniens and the 

district court granted that motion in full, concluding that 

Malaysia is a more convenient forum to hear all of the

appellants’ claims. While the Court has great sympathy for 

the victims of this tragedy and their families, we cannot 

disregard the narrow standard governing our review in this 

case. We conclude that the district court did not clearly abuse 

its discretion in dismissing appellants’ lawsuits for forum non 

conveniens and affirm the decision in full.

I.

The district court’s opinion recounts the factual history 

surrounding Flight MH370’s disappearance and the ensuing 

investigations in detail. See In re Air Crash Over S. Indian 

Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018). We will therefore 

focus only on the facts pertinent to this appeal. 

Malaysia Airlines Flight MH370 disappeared en route 

from Kuala Lumpur International Airport in Malaysia to 

Beijing, China, early in the morning on March 8, 2014. On 

board Flight MH370 were 227 passengers and 12 Malaysian 

crew members. The 227 passengers were of 14 nationalities, 

including 152 Chinese citizens, 38 Malaysian citizens, and 3 

United States citizens. The aircraft in question was a Boeing 

777-2H6ER that was designed and manufactured at Boeing’s 

facility in Washington state and delivered to the airline in new 

condition in May 2002. 

An extensive search for the missing aircraft ensued

following the plane’s disappearance. The search team 
4

ultimately concluded that Flight MH370 likely crashed in the 

Southern Indian Ocean after running out of fuel, but neither 

the plane nor other critical pieces of evidence, such as the 

cockpit voice recorder and flight data recorder, were 

recovered. In addition to the search for physical evidence, the 

Malaysian government took the lead on a separate civil 

investigation into why Flight MH370 had disappeared. This 

investigation culminated in a 449-page report, which 

concluded that while the investigation team was “unable to 

determine the real cause for the disappearance of MH370,” 

human interference or error were more likely the cause of the 

plane’s disappearance than aircraft or system malfunction. In 

connection with this investigation and a related criminal 

investigation, the civil investigation team and the Malaysian 

government conducted numerous interviews of witnesses 

located in Malaysia, including airline employees, family 

members and acquaintances of the Malaysian crew, air traffic 

controllers, cargo shippers, and Malaysian investigators.

At the time of Flight MH370’s disappearance, Malaysia 

Airlines Systems Berhad (“MAS”) served as the national 

airline of Malaysia and the Malaysian government held a 

direct, controlling stake in the company. After the crash, the 

Malaysian government enacted the Malaysian Airline System 

Berhad (Administration) Act 2015 (“Act 765”). Act 765

incorporated a new, separate entity—Malaysia Airlines 

Berhad (“MAB”)—as the new Malaysian national airline, 

transferred MAS’s assets to MAB, and placed MAS under 

administration. Under the explicit terms of Act 765, MAB is 

not a successor corporation to MAS and has not assumed any 

of MAS’s liabilities related to Flight MH370. 
5

Beginning in early 2016, a total of forty lawsuits related 

to Flight MH370’s disappearance were filed in various federal 

district courts across the United States, and the Judicial Panel 

on Multidistrict Litigation transferred them to the District of 

Columbia district court for pretrial proceedings. The various 

plaintiffs, all legal representatives or beneficiaries of 

decedents, divided into two groups in the proceedings below, 

one represented by Podhurst Orseck, P.A. and Wisner Law 

Firm, P.C. (the “Podhurst Appellants”), and another 

represented by Motley Rice LLC and Spagnoletti & Co. (the 

“Motley Rice Appellants”). The parties are largely the same 

on appeal, except that one appellant, Thomas Wood, now 

proceeds individually. Appellant Wood is a U.S. citizen and 

resident suing on behalf of his deceased brother, Philip Wood, 

a U.S. citizen who was living in Malaysia at the time of Flight 

MH370.1

Following more than a year of court-ordered discovery 

on various threshold issues, appellees filed a joint motion to 

dismiss under the doctrine of forum non conveniens. 

MAS/MAB also sought dismissal on other threshold grounds, 

including sovereign immunity under the Foreign Sovereign 

Immunities Act (“FSIA”) and lack of subject matter 

1 Numerous civil cases arising out of Flight MH370’s 

disappearance are also pending in Malaysia. Seventy-seven of the 

eighty-eight decedents represented in the legal actions that 

comprise this litigation are also represented in cases pending in 

Malaysia. Boeing has not been named as a party to any of the 

Malaysian suits to date, but Boeing has consented to the jurisdiction 

of the Malaysian courts and agreed to make all relevant evidence 

available in Malaysia as a condition of dismissal for forum non 

conveniens.
6

jurisdiction under the Montreal Convention. Relying on the 

Supreme Court’s decision in Sinochem International Co. v. 

Malaysia International Shipping Corp., the district court 

declined to reach the jurisdictional challenges and instead 

dismissed on the basis of forum non conveniens. In re Air 

Crash Over S. Indian Ocean, 352 F. Supp. 3d at 35 (citing 

549 U.S. 422, 425 (2007)). This timely appeal followed. 

II.

A party seeking dismissal for forum non conveniens bears 

the burden of showing both (1) that an adequate alternative 

forum is available to hear the dispute, and (2) if so, that the 

balance of certain public and private interest factors strongly 

counsels in favor of trying the dispute in the alternative 

forum. See, e.g., Agudas Chasidei Chabad of U.S. v. Russian 

Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008). The Supreme 

Court has instructed that “[t]he forum non conveniens 

determination is committed to the sound discretion of the trial 

court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).

So long as the district court “has considered all relevant 

public and private interest factors, and ... its balancing of 

these factors is reasonable,” we must afford that decision 

“substantial deference” and will overturn only if we find a 

“clear abuse of discretion.” Id. Under this narrow standard, 

we find no basis to reverse the district court’s reasoned 

decision.

First, the district court did not abuse its discretion when it 

concluded that Malaysia is an adequate, available forum for 

appellants’ Montreal Convention and state law products 

liability and wrongful death claims. Only the Motley Rice 

Appellants directly challenge this determination on appeal. 
7

They argue that the Malaysian government “has demonstrated 

clear intent to, and did, deprive [appellants] of any real 

adequate and available forum in Malaysia” through its 

enactment of Act 765, which transferred all of MAS’s assets 

to MAB without deeming MAB a successor entity to MAS. 

For the first time on appeal, the Motley Rice Appellants also 

contend that Malaysian law would provide such insignificant 

damages for appellants’ tort claims against Boeing that 

forcing appellants to try those claims in Malaysia would 

“obliterate[] any real likelihood of trial.” 

We agree with the district court that the enactment of Act 

765 does not render Malaysia an inadequate forum. As the 

district court explained, MAS appears to have an insurance 

policy that would apply to appellants’ Montreal Convention 

claims—and even assuming Act 765 did render MAS 

judgment proof, a U.S. forum would not provide any greater 

likelihood of redress. Moreover, because the Motley Rice 

Appellants failed to raise any challenge to the adequacy of 

tort damages under Malaysian law before the district court, 

those arguments are forfeited. See Gov’t of Manitoba v. 

Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent 

exceptional circumstances, a party forfeits an argument by 

failing to press it in district court.”).

In any event, in the context of a forum non conveniens 

inquiry, “a foreign forum is not inadequate merely because it 

has less favorable substantive law.” Agudas Chasidei Chabad, 

528 F.3d at 950 (citation and quotation marks omitted); 

accord Piper Aircraft, 454 U.S. at 247 (“The possibility of a 

change in substantive law should ordinarily not be given 

conclusive or even substantial weight in the forum non 

conveniens inquiry.”). Where, as here, it appears undisputed
8

that an alternative forum would provide a plaintiff at least 

some remedy, a district court acts within its discretion in 

deeming that forum an adequate alternative to a U.S. court.

See, e.g., Piper Aircraft, 454 U.S. at 254 n.22 (explaining that 

a forum will only be deemed inadequate “[i]n rare 

circumstances ... where the remedy offered by the other 

forum is clearly unsatisfactory,” such as “where the 

alternative forum does not permit litigation of the subject 

matter of the dispute”).2

Nor did the district court clearly abuse its discretion in 

concluding that the balance of relevant public and private 

interest factors weighs heavily in favor of trying appellants’ 

cases in Malaysia. The relevant public interest factors include, 

inter alia, the “‘administrative difficulties’ when ‘litigation is 

piled up in congested centers,’” the “‘local interest in having 

localized controversies decided at home,’” and the desire to 

avoid requiring a court to “‘untangle problems in conflict of 

laws, and in law foreign to itself.’” Shi v. New Mighty U.S. 

Tr., 918 F.3d 944, 952 (D.C. Cir. 2019) (quoting Gulf Oil 

Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947)). The private 

interest analysis, on the other hand, focuses on “‘the relative 

ease of access to sources of proof,’” the costs and procedural 

2

In his discussion of the public interest factors governing the forum 

non conveniens analysis, Appellant Wood argues that his difficulty 

in securing the counsel of his choice in Malaysia “casts doubt on 

whether Malaysia constitutes an adequate, alternative forum.” 

Neither Wood nor any of the Podhurst Appellants raised this 

argument in the proceedings below. Thus, to the extent this passing 

reference can be construed as a standalone challenge to Malaysia’s 

adequacy as an alternative forum, that challenge has been forfeited. 

See Manitoba, 923 F.3d at 179.
9

mechanisms required to secure the attendance of witnesses, 

and “‘all other practical problems that make trial of a case 

easy, expeditious and inexpensive.’” Id. at 950 (quoting 

Gilbert, 330 U.S. at 508). 

The district court found that Malaysia’s public interest in 

hearing claims arising out of Flight MH370’s disappearance 

far outweighs that of the United States, even as to the tort 

claims asserted against U.S.-based manufacturer Boeing. The 

district court further held that the private interest factors tilt 

strongly in favor of trying these cases in Malaysia, given the 

overwhelming amount of evidence and witnesses located in 

Malaysia and the potentially insurmountable challenges that 

would arise from attempting to make that evidence available 

in a United States court. 

We affirm on substantially the same grounds provided in 

the district court’s well-reasoned opinion, but pause here to 

address two points raised by appellants. The first relates to the 

degree of deference the district court applied to the various 

appellants. As the court recognized, the starting point for the 

forum non conveniens analysis is “a strong presumption in 

favor” of a plaintiff’s chosen forum. Simon v. Republic of 

Hungary, 911 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting

Piper Aircraft, 454 U.S. at 255–56). But the precise degree of 

deference afforded a plaintiff’s forum choice varies 

depending on the plaintiff’s connection to the forum. A

plaintiff who chooses to sue in his home forum receives the 

strongest presumption, whereas a foreign plaintiff with 

minimal or no connections to the United States is entitled to 

less deference. Piper Aircraft, 454 U.S. at 256. Accordingly, 

the district court afforded Appellant Wood, as a U.S. citizen 

and resident representing a U.S. citizen decedent, “the highest 
10

degree of deference” and tailored its analysis of the remaining 

appellants’ interests in having their claims heard in the United 

States to their particular circumstances. In re Air Crash Over 

S. Indian Ocean, 352 F. Supp. 3d at 45.

On appeal, the foreign appellants contend that the district 

court erroneously refused to afford any deference at all to

their decision to sue in the United States. They also criticize 

the district court for failing to specify the precise degree of 

deference it applied to them, claiming that “[t]his omission, in 

and of itself, was reversible error.” These arguments rest on a

fundamental misconception of what the forum non conveniens 

analysis requires. Indeed, this Court has stressed that 

“applying the correct burden of proof is not a box-checking 

exercise.” Simon, 911 F.3d at 1185. What matters is not the 

particular words a district court uses but whether the court’s 

analysis fits the proper standard.

Here, the district court’s analysis reflected a careful 

consideration of the foreign appellants’ interests in trying 

these cases in the United States and a thoughtful balancing of 

the public and private interest factors with respect to those 

individuals specifically. Moreover, as already noted, the 

district court correctly recognized that Appellant Wood was 

entitled to the greatest degree of deference. Because the court 

concluded that even Wood’s substantial interest in trying 

these claims in the United States could not overcome the 

significant evidentiary problems posed by proceeding in a 

U.S. court, it necessarily followed that the foreign 

appellants—who were concededly entitled to less deference 

than Wood—could not succeed in showing that the balance of 

interests weighed in favor of maintaining their claims here. 

We find no reversible error in the district court’s reasoning 
11

regarding the appropriate levels of deference afforded to 

appellants’ claims. 

Second, appellants argue that the district court erred by 

first declining to reach the separate sovereign immunity

challenges raised by MAS/MAB and then relying on the 

existence of potentially “intractable immunity questions” as a 

justification for its forum non conveniens dismissal. 

According to appellants, this analysis was inconsistent with 

Sinochem, under which a court may elect to grant a motion for 

forum non conveniens while “bypassing” threshold issues 

relating to the court’s subject matter jurisdiction. See 549 U.S. 

at 432. 

As an initial matter, appellants incorrectly suggest that 

the district court treated MAS/MAB’s immunity challenges 

under the FSIA “as granted for purposes of its forum non 

conveniens analysis.” Nor did the court impermissibly 

“leapfrog” the immunity questions and then rely on the same 

unresolved immunity issues to deny appellants their chosen 

forum. Instead, the district court merely conducted a 

preliminary assessment of MAS/MAB’s immunity claims and 

concluded that “[t]he potential of intractable immunity 

questions that might stymie Boeing’s ability to implead other 

defendants raises the prospect of precisely the kind of 

oppressive and vexatious outcome that forum non conveniens

dismissal is designed to avoid.” In re Air Crash Over S. 

Indian Ocean, 352 F. Supp. 3d at 53 (citation omitted). 

Nothing in Sinochem requires district courts to conclusively 

determine whether a defendant enjoys sovereign immunity 

before considering immunity as a relevant factor in its forum 

non conveniens analysis. Here, Boeing and MAS/MAB raise 

serious arguments regarding MAS/MAB’s likely immunity, 
12

and it was entirely proper for the district court to recognize

that serious jurisdictional questions exist and weigh that as a 

factor in favor of dismissal.

In addition, appellants argue that the district court placed 

undue weight on sovereign immunity concerns as a private 

interest factor favoring dismissal. The district court’s opinion, 

however, makes clear that it considered all relevant

circumstances, including the potential immunity issues, and 

concluded that “taken as a whole, the private interest factors 

favor dismissal of these claims.” In re Air Crash Over S. 

Indian Ocean, 352 F. Supp. 3d at 53 (emphasis added). 

Sinochem imposes no bar on a district court’s ability to 

acknowledge the existence of meaningful jurisdictional 

questions in determining whether “a foreign tribunal is plainly 

the more suitable arbiter of the merits of the case.” See 

Sinochem, 549 U.S. at 425. Thus, appellants’ Sinochem-based 

challenges also fail.

* * *

In considering appellees’ motion to dismiss for forum 

non conveniens, the district court carefully weighed the 

relevant public and private interest factors and reasonably 

concluded that Malaysia is a more convenient forum to try 

appellants’ claims. Because we find no “clear abuse of 

discretion” in the district court’s reasoning, we affirm. 

So ordered.