Filed: Jun. 07, 2012
Latest Update: Mar. 26, 2017
Summary: 10-4406-cv (L) Frederiksson v. Sikorsky Aircraft Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
Summary: 10-4406-cv (L) Frederiksson v. Sikorsky Aircraft Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE N..
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10-4406-cv (L)
Frederiksson v. Sikorsky Aircraft Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7th day of June, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 Circuit Judges,
9 MIRIAM GOLDMAN CEDARBAUM,
10 District Judge.*
11
12
13 ULLA CHRISTINE FREDERIKSSON, individually, and as personal
14 representative of the ESTATE OF PETER JARL FREDERIKSSON and
15 as guardian ad litem for her minor children, NICLAS
16 FREDERIKSSON, SEBASTIAN FREDERIKSSON AND NICOLE
17 FREDERIKSSON,
18
19 Plaintiff-Counter-Defendant-Appellant,
20
21 MARJATTA PEURALA, individually, and as personal
22 representative of the ESTATE OF SEPPO ANTERO PEURALA, ANTTI
23 OLAVI PEURALA, PIRKKO ONVERVA KOOPERI, Individually, and as
24 personal representative of the ESTATE OF ONNI MATTI KOPPERI,
25 MARIKA KOPPERI-GRONLUND,
26
27 Plaintiffs-Appellants,
28
29 -v.- 10-4406-cv (Lead)
30 10-4444-cv (Con)
*
Judge Miriam Goldman Cedarbaum, of the United States
District Court for the Southern District of New York, sitting by
designation.
1 HR TEXTRON, INC., a wholly owned subsidiary of TEXTRON,
2 INC.,
3
4 Defendant-Counter-Claimant-Appellee,
5
6 SIKORSKY AIRCRAFT CORPORATION, INC., HELICOPTER SUPPORT,
7 INC., COPTERLINE OY, PLASMA TECH INC.,
8
9 Defendants-Appellees.
10
11
12 FOR APPELLANT: MICHAEL P. VERNA, Bowles & Verna, LLP,
13 Walnut Creek, CA (Gerald C. Sterns,
14 Sterns & Walker, Oakland, CA, on the
15 brief), for Plaintiffs-Appellants Ulla
16 Christine Frederiksson, et al.
17
18 FOR APPELLEE: CATHERINE SLAVIN, Cozen O’Connor,
19 Philadelphia, PA, for Appellee HR
20 Textron, Inc.
21
22 David M.S. Shaiken, David Shaiken LLC,
23 Vernon, CT, for Appellee Plasma Tech.
24 Inc.
25
26 James W. Hunt, Alice Chan, Fitzpatrick &
27 Hunt, Tucker, Collier, Pagano, Aubert
28 LLP, New York, NY, for Appellees Sikorsky
29 Aircraft Corp. & Helicopter Support, Inc.
30
31
32 Appeal from the United States District Court for the
33 District of Connecticut (Eginton, J.)
34
35 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
36 AND DECREED that the judgment of the United States District
37 Court for the District of Connecticut be VACATED AND
38 REMANDED.
39 Plaintiffs-Appellants appeal from the September 28,
40 2010 and October 8, 2010 orders of the district court
2
1 (Eginton, J.) granting Appellees’ motion to dismiss on the
2 ground of forum non conveniens. We assume the parties’
3 familiarity with the underlying facts, procedural history,
4 and issues on appeal.
5 We review a district court’s decision to dismiss on
6 forum non conveniens grounds for clear abuse of discretion.
7 Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.
8 2001) (en banc). “A district court abuses its discretion
9 when it rests its decision on a clearly erroneous finding of
10 fact or makes an error of law.” Citigroup Global Mkts.,
11 Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d
12 30, 34 (2d Cir. 2010) (quoting Almontaser v. N.Y.C. Dep’t of
13 Educ.,
519 F.3d 505, 508 (2d Cir. 2008)). Abuse of
14 discretion is also shown when a district court “applies the
15 incorrect legal standard.” Otokoyama Co. Ltd. v. Wine of
16 Japan Import, Inc.,
175 F.3d 266, 270 (2d Cir. 1999); see
17 also Wiwa v. Royal Dutch Petroleum Co.,
226 F.3d 88, 107 (2d
18 Cir. 2000).
19 Our circuit’s precedent dictates a three-step analysis
20 to determine whether dismissal for forum non conveniens is
21 appropriate.
22 At step one, a court determines the degree of
23 deference properly accorded the plaintiff’s choice
24 of forum. At step two, it considers whether the
3
1 alternative forum proposed by the defendants is
2 adequate to adjudicate the parties’ dispute.
3 Finally, at step three, a court balances the
4 private and public interests implicated in the
5 choice of forum.
6
7 Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146,
8 153 (2d Cir. 2005) (internal citations omitted).
9 When conducting the first step of this analysis to
10 determine the appropriate level of deference accorded to a
11 plaintiff’s choice of forum, a court may consider several
12 factors: (1) whether the plaintiff is a U. S. citizen; (2)
13 convenience of the plaintiff’s residence in relation to the
14 chosen forum; (3) availability of witnesses or other
15 evidence to the forum; (4) defendant’s amenability to suit
16 in the forum; (5) availability of appropriate legal
17 assistance; and (6) evidence of forum shopping to be subject
18 to favorable law. Iragorri, 274 F.3d at 71-72. These
19 factors, however, imply a temporal framework. That is, they
20 must be analyzed in reference to a distinct point in time:
21 for step-one purposes, that point is the time at which the
22 complaint was filed. See id. at 75.
23 In this case, however, in conducting its step-one
24 analysis, the court erroneously examined facts that arose or
25 came to light long after the complaint was filed. For
26 example, the court relied on the Final Accident Report to
4
1 conclude that Appellants ignored the significance of the
2 evidence in Finland. But the Final Accident Report was not
3 released until August 2008, well after Appellants filed
4 their complaint. Similarly, the court considered Appellees’
5 stipulations that they would provide evidence for trial in
6 Finland.1 But just as a defendant’s representation that it
7 will submit to jurisdiction in the foreign venue is
8 irrelevant to the first prong of the analysis because
9 plaintiffs cannot anticipate that defendants will so
10 stipulate, see Norex Petroleum, 416 F.3d at 156, a
11 defendant’s post-complaint stipulation to provide evidence
12 in a foreign forum is irrelevant to the step-one analysis
13 because plaintiffs cannot anticipate such a stipulation when
14 they file a complaint.
15 By erroneously relying on post-complaint facts to grant
16 only “some deference” to Appellants’ choice of forum, the
17 district court applied an incorrect legal standard and
18 abused its discretion. We also observe that when an
19 American defendant claims that a foreign forum is more
20 convenient than a home forum, some suspicion of forum
21 shopping must arise. We therefore remand to allow the court
1
There is no evidence in this record that without
Defendants’ subsequent consent to personal jurisdiction that
Defendants could have been sued in Finland.
5
1 to apply the correct legal standard, but we leave open the
2 possibility that the court may make the same decision to
3 dismiss after doing so. See id. at 155-57.
4 In addition to applying an incorrect legal standard in
5 the step-one analysis, we question the court’s step-three
6 analysis as it relates to the Copterline settlement,
7 especially in light of the fact that Appellees had the
8 burden of demonstrating that the public and private interest
9 factors weighed in favor of adjudication in the Finnish
10 forum. See Aguinda v. Texaco, Inc., 303 F.3d 470, 476 (2d
11 2002). It would be premature in light of the remand to
12 determine if the balance of public and private interest
13 factors necessarily weighed against Appellees. However, on
14 remand, the district court should explicitly analyze the
15 effect of the Copterline settlement by explaining the
16 application of factors outlined in Gulf Oil Corp. v.
17 Gilbert,
330 U.S. 501, 508-09 (1947), superceded by statute
18 on other grounds.
19 The court did not fully consider the Copterline
20 settlement based on its apparent reliance on Piper Aircraft
21 Co. for the proposition that dismissal is proper where,
22 among other things, defendants would be unable to implead a
23 foreign third-party defendant (in this case, Copterline).
6
1 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259 (1981).
2 Here, because the settlement agreement would prevent
3 Appellees from impleading Copterline in any forum, including
4 Finland, this factor of Piper Aircraft is inapplicable, and
5 the court’s reliance on it is therefore questionable. The
6 inability to implead Copterline further affects the balance
7 of public interest factors in that it eliminates any
8 potential Finnish defendants. Yet the court failed to
9 explicitly consider this distinction between the instant
10 case and Piper Aircraft.
11 Finally, the magistrate judge’s report, which has been
12 adopted by the district court, appears to have been guided
13 heavily by another District of Connecticut forum non
14 conveniens opinion. See Melgares v. Sikorsky Aircraft Co.,
15
613 F. Supp. 2d 231 (D. Conn. 2009). The court’s dismissal
16 in Melgares relied in part on the inability of the court to
17 exercise personal jurisdiction over potential third-party
18 defendants to the suit. The magistrate judge’s report and
19 recommendation here similarly pointed to the unavailability
20 of process in the United States over Copterline and its
21 employees, apparently overlooking the fact that the
22 Copterline settlement prevents Copterline’s impleader
23 regardless of issues of personal jurisdiction.
7
1 These factual errors combined with the court’s
2 erroneous reliance on post-complaint facts to determine the
3 level of deference due to Appellants’ choice of forum
4 convince us that the district court abused its discretion in
5 dismissing the case. We make no finding, however, as to
6 whether the court’s ultimate conclusion that dismissal for
7 forum non conveniens is correct. Rather, we remand to the
8 district court with instructions to consider the deference
9 owed to Appellants’ choice of forum using only those facts
10 known at the time of pleading and to conduct the remainder
11 of the analysis in light of the Copterline settlement
12 agreement.
13 For the foregoing reasons, the judgment of the district
14 court is hereby VACATED AND REMANDED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
8
