Citations
- 352 F. Supp. 3d 19
Full opinion text
The Podhurst Plaintiffs are citizens and residents of a variety of countries-four are citizens of the United States; one is a resident of the United States; and 24 are citizens and residents of India, Australia, or China. (See Podhurst FNC Opp'n. at 21-22; see also infra , Part IV.A.2; IV.B.2.) The Podhurst Plaintiffs represent, or are otherwise related to, 62 of the passengers of the fateful Flight MH370, only one of whom was a citizen of the United States. The rest of the decedents who are referenced in the Podhurst Plaintiffs' complaints are citizens and/or residents of India, Australia, Indonesia, Japan, and China. (See Podhurst FNC Opp'n at 21-22.)
Two of the Motley Rice Plaintiffs are citizens of the United States (see Compl., Keith v. The Boeing Co. , 17cv0518, ECF No. 1, ¶ 1; Compl., Smith v. Malaysia Airlines Berhad , 16cv0439, ECF No. 1, ¶ 39), and one appears to be a citizen of Malaysia (see Notice of Removal, Kanan v. The Boeing Co. , 16cv1159, at 6), while the remainder appear to be citizens of China (see Compl., Zhang v. Malaysia Airlines Berhad , 16cv1048, ECF No. 1, ¶¶ 42, 44-84). Of the decedents who are referenced in the Motley Rice complaints, two are United States citizens who were residents of China, and one is a lawful permanent resident of the United States who was living in China at the time of Flight MH370's disappearance. (See Pls.' Resp. to Def. MAS's Montreal Conv. Mot. ("Motley Rice Montreal Convention Opp'n"), ECF No. 66, at 6.) One appears to be a citizen of Malaysia, and the remainder appear to be citizens of China. (See Kanan Notice of Removal at 6; Zhang Compl. , ¶¶ 42, 44-84.)
2. The Defendants
The various complaints that comprise this MDL name one or more of five defendants. Defendants MAS and MAB are based in Malaysia, while Boeing's commercial aircraft operations are based on the west coast of the United States, in Washington state. (See Part I.B., supra. ) Four of the pending complaints also name as a defendant AGCS SE, alleging that it is an insurer of MAS; AGCS SE contends that it is a "Societas Europaea"-organized corporation that exists under the laws of the European Union, and that it maintains its principal place of business in Munich, Germany. (See AGCS SE Pers. Juris. Mot. at 9.) The final defendant-Haagen-is an executive of AGCS SE; he is named as a defendant in two complaints. (Id. )
3. The Claims
As noted above, the complaints consolidated in this MDL assert two different types of claims: Montreal Convention claims against MAS and MAB (and in some cases, their insurers), and state law wrongful death and products liability claims against Boeing.
a. The Montreal Convention
The Montreal Convention-formally titled the "Convention for the Unification of Certain Rules for International Carriage by Air" -is an international treaty to which both the United States and Malaysia are parties. See May 28, 1999, S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000). The Montreal Convention "sets forth uniform rules for claims that arise out of incidents that occur during international air transportation[,]" Marotte v. Am. Airlines, Inc. , 296 F.3d 1255, 1258-59 (11th Cir. 2002), and it "applies to all international carriage of persons, baggage or cargo performed by aircraft for reward[,]" Art. 1.1, Montreal Conv. There is no dispute that the disappearance of Flight MH370 involved international carriage within the meaning of the Montreal Convention.
Article 17 of the Montreal Convention provides that an air "carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Art. 17, Montreal Conv. "According to Article 21, a carrier is strictly liable up to [113,000] Special Drawing Rights (SDR) ... for damages sustained in case of death or bodily injury to passengers[.]" Delgado v. Delta Air Lines, Inc. , No. 12-23272, 2013 WL 9838339, at *4 (S.D. Fla. Oct. 31, 2013) (internal quotation marks and citation omitted). In addition, an air carrier is liable for damages in excess of the initial 113,000 SDR if the plaintiff claims and establishes such damages, unless the carrier can establish that the "accident is entirely attributable to events wholly outside the carrier's control." Id.
The Montreal Convention specifies that a plaintiff generally can file a lawsuit seeking damages under the treaty for passenger death or personal injury, as well as damage to property, "before the court of the [1] domicile of the carrier or [2] of its principal place of business, or [3] where it has a place of business through which the contract has been made or [4] before the court at the place of destination." Montreal Conv., Art. 33. Moreover, where the claim involves the death or injury of a passenger, a legal action may also be filed in the country where "at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, ... and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement." Id.
b. Wrongful Death And Products Liability Tort Claims Pertaining To Aviation Disasters
Wrongful death claims are a creature of state law, and in the United States typically exist to provide "just compensation" to the survivors of a person wrongfully killed. See Reiser v. United States , 786 F.Supp. 1334, 1335 (N.D. Ill. 1992) (citing Ill. Rev. Stats. Ch. 70 ¶ 2 ); see also Aspinall v. McDonnell Douglas Corp. , 625 F.2d 325, 327 (9th Cir. 1980) (noting that "[u]nder California law the right of a survivor to recover under the wrongful death theory is purely statutory"); Rentz v. Spokane Cty. , 438 F.Supp.2d 1252, 1257 (E.D. Wash. 2006) (explaining that Washington law permits a personal representative of a deceased individual to maintain a wrongful death suit for the benefit of the heirs). The evidence in a wrongful death case in the context of an aviation disaster, as in other wrongful death cases, typically involves proof of the traditional elements of a negligence claim: duty, breach, causation, and damages, including proof that the injury was a death. See Kasongo v. United States , 523 F.Supp.2d 759, 792 (N.D. Ill. 2007).
Products liability claims, which are generally brought under state common law, can proceed under either a strict liability or a negligence theory, and require proof of the causal relationship between a manufacturer's product and the injury a plaintiff has suffered. Thornton v. M7 Aerospace LP , 796 F.3d 757, 770 (7th Cir. 2015) ; see also Joy v. Bell Helicopter Textron, Inc. , 999 F.2d 549, 554 (D.C. Cir. 1993) (explaining that "[i]n order to recover, an injured plaintiff must demonstrate not only that the product is defective, but also that the defect proximately caused plaintiff's injury in that but for the defect, the injury would not have occurred" (internal quotation marks and citation omitted) ). Thus, such cases typically involve evidence regarding the nature of the defect (manufacturing, design, or otherwise); the incident itself; and the damages suffered. See id. Plaintiffs here intend to rely upon a res ipsa loquitur theory of causation, pursuant to which a jury can infer that a manufacturer's negligence caused the plaintiff's injury based on the circumstances of the case, rather than direct proof of a product defect. (See Mot. Hr'g Tr. at 38:4-8.) See also Restatement (Third) of Torts: Phy. & Emot. Harm § 17 (2010). With respect to aviation disasters, which might involve negligence by someone other than the plane manufacturer, "res ipsa loquitur can be found applicable only if the plaintiff has offered evidence tending to negate the presence of causes other than the defendant's negligence." Restatement (Third) of Torts: Phy. & Emot. Harm § 17.
B. Defendants' Threshold Motions
At the parties' request, this Court ordered initial discovery limited to six topics-forum non conveniens ; jurisdiction under the Foreign Sovereign Immunities Act; jurisdiction under the Montreal Convention; personal jurisdiction; plaintiffs' capacity to bring suit; and whether plaintiffs have stated a plausible claim against AGCS SE and Haagen-and set a schedule for the briefing and filing of dispositive motions related solely to those topics. (See Scheduling Order, ECF No. 14, at 1-2.) Following the discovery period, Defendants filed the joint motion seeking dismissal under the doctrine of forum non conveniens that is the subject of this opinion. (See Joint Mot. to Dismiss on the Ground of Forum Non Conveniens ("FNC Mot."), ECF No. 37.) Various defendants filed four other motions related to these threshold topics.
In their joint forum non conveniens motion, Defendants argue that all of the pending complaints should be dismissed in favor of litigation in Malaysia, under the Supreme Court's holding in Piper Aircraft Co. v. Reyno , 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Defendants maintain that Malaysia is an adequate and available forum for litigation of all of Plaintiffs' claims. (See FNC Opp'n at 21-23.) They also argue that the balance of private and public factors weighs in favor of dismissal, because the vast majority of evidence regarding liability is in Malaysia, and that it would be difficult to obtain the testimony of unwilling Malaysian witnesses in the United States. (See id. at 24-32.) Defendants further assert that not all potential defendants can be joined as defendants in United States courts (see id. at 32-33), and that this Court could be called upon in the context of this litigation to determine the validity of Act 765 (see id. at 39-40). Moreover, Defendants contend that Malaysia's interest in resolving lawsuits arising from the disappearance of Flight MH370 far outweighs any interest the United States has in this matter, even taking into account Boeing's status as an American company and the presence of a few American plaintiffs and decedents. (See id. at 37-41.)
Plaintiffs oppose dismissal based on forum non conveniens , and the two plaintiffs groups have filed two separate oppositions. The Podhurst Plaintiffs concede that Malaysia is an adequate and available alternative forum (see Podhurst FNC Opp'n at 20 n.30), while the Motley Rice Plaintiffs assert that, because Act 765 has insulated MAB from liability and there is nothing left of MAS, Malaysia is not an adequate forum (see Motley Rice FNC Opp'n at 11-17). Both sets of plaintiffs' briefs also maintain that little, if any, relevant evidence is located in Malaysia because the plane was never found and the Malaysian investigators were unable to determine the cause of the disappearance even after conducting an extensive investigation. (See Podhurst FNC Opp'n at 35-37; Motley Rice FNC Opp'n at 10.) Plaintiffs further maintain that all records related to Boeing are located in the United States, and that other relevant evidence is located in other countries such as China (records related to Chinese decedents), the United Kingdom (satellite data records), or Australia (search records). (See Podhurst FNC Opp'n at 30-42; Motley Rice FNC Opp'n at 8-11). In this regard, the Podhurst Plaintiffs emphasize that none of the decedents that Podhurst represents are from Malaysia, and that certain of the decedents and plaintiffs in cases they have filed have connections to the United States. (See Podhurst FNC Opp'n at 17-18.) Both plaintiff groups also insist that the United States has a strong public interest in ensuring that an American aircraft manufacturer produces safe airplanes. (See Podhurst FNC Opp'n at 48-49; Motley Rice FNC Opp'n at 22.)
Defendants' joint forum non conveniens motion became ripe for this Court's consideration on September 8, 2017 (see Joint Reply in Supp. of FNC Mot., ECF No. 72), and the Court heard oral argument on all of the threshold motions on December 19, 2017 (see Min. Entry Of Dec. 19, 2017).
III. MOTIONS TO DISMISS BASED ON FORUM NON CONVENIENS
Although a court must ordinarily rule upon questions concerning its own jurisdiction before assessing the merits of any other motion, an exception exists when a forum non conveniens motion is filed; it is well established that a court may opt to decide a forum non conveniens motion before considering any jurisdictional issues. See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). The standard used to evaluate a motion seeking dismissal based on the doctrine of forum non conveniens is clear beyond cavil. The movant bears the burden of showing that (1) there is an available and adequate alternative forum, and (2) the balance of various public and private interest factors indicates that maintaining the case in the current forum is comparatively inconvenient. See Piper Aircraft Co. , 454 U.S. at 254 n.22, 102 S.Ct. 252 ; see also Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ; Agudas Chasidei Chabad of U.S. v. Russian Fed'n , 528 F.3d 934, 950 (D.C. Cir. 2008) ; Azima v. RAK Inv. Auth. , 305 F.Supp.3d 149, 160 (D.D.C. 2018). "[T]he district court is accorded substantial flexibility in evaluating a forum non conveniens motion, and each case turns on its facts." Van Cauwenberghe v. Biard , 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (internal citations and quotation marks omitted). Indeed, "[i]f central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Simon v. Rep. of Hungary , 277 F.Supp.3d 42, 62 (D.D.C. 2017) (internal quotation marks and citation omitted).
A foreign forum is available and adequate when it "provide[s] the plaintiff with 'some' remedy[,]" Loya v. Starwood Hotels & Resorts Worldwide, Inc. , 583 F.3d 656, 666 (9th Cir. 2009), even if the damages available to the plaintiff would be less than those available in the United States, and even if certain theories of liability are not recognized, see Piper Aircraft Co. , 454 U.S. at 247, 255, 102 S.Ct. 252. On the other hand, where the alternative forum could not award any relief to a plaintiff at all, courts will find that the forum is not adequate. See Nemariam v. Fed. Democratic Republic of Ethiopia , 315 F.3d 390, 394 (D.C. Cir. 2003) (finding alternative forum was inadequate because the governing law barred plaintiff from directly filing her claim); Yueh-Lan Wang by & through Winston Wen-Young Wong v. New Mighty U.S. Tr. , 322 F.R.D. 11, 26 (D.D.C. 2017) (holding that alternative forum was inadequate where plaintiff's claim would be time-barred); see also In re Air Crash Disaster Near Bombay, India on Jan. 1, 1978 , 531 F.Supp. 1175, 1191 (W.D. Wash. 1982) (finding that a case involving India's national air carrier should be litigated in India, but denying forum non conveniens motion where Indian forum was unavailable to plaintiffs).
The public interest factors that a court must consider when assessing a motion to dismiss for forum non conveniens include "having localized controversies decided at home"; minimizing "administrative difficulties" such as court congestion and imposing jury duty on citizens in a "community which has no relation to the litigation"; and unnecessarily burdening courts with "problems in choice-of-law and the application of foreign law." D & S Consulting, Inc. v. Kingdom of Saudi Arabia , 322 F.Supp.3d 45, 49-50 (D.D.C. 2018) ; see also Gulf Oil Corp. , 330 U.S. at 508-09, 67 S.Ct. 839 ; Pain v. United Techs. Corp. , 637 F.2d 775, 791-92 (D.C. Cir. 1980). And when balancing the private interests in litigating the claims at issue in a particular forum, a court considers a variety of factors, including "the relative ease of access to sources of proof"; the availability of compulsory process for the attendance of witnesses and the cost of obtaining attendance; the enforceability of any judgment; the "possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Am. Dredging Co. v. Miller , 510 U.S. 443, 448, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (internal quotation marks and citation omitted).
Because forum non conveniens is a procedural question, this Court applies D.C. Circuit law in deciding forum non conveniens motions. See Am. Dredging Co. , 510 U.S. at 453, 114 S.Ct. 981 ; In re Korean Air Lines Disaster of Sept. 1, 1983 , 829 F.2d 1171, 1178 (D.C. Cir. 1987). Moreover, and notably, in the context of aviation disasters, "[t]he plaintiff's choice of forum will not be disturbed unless the private and public interest factors strongly favor trial in the foreign country." In re Air Crash Over Mid-Atl. on June 1, 2009 ("Air France" ), 760 F.Supp.2d 832, 839 (N.D. Cal. 2010). Furthermore, the nationality of the plaintiff has some relevance to a court's consideration of the forum non conveniens question, as the Supreme Court has explained:
[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum.... [H]owever, ... the presumption applies with less force when the plaintiff or real parties in interest are foreign.
Piper Aircraft Co. , 454 U.S. at 255, 102 S.Ct. 252.
IV. ANALYSIS
Defendants' joint motion for dismissal of the instant MDL cases on forum non conveniens grounds requires this Court to consider the adequacy of Malaysia as a forum for litigating claims related to this incident, and, as reflected in the myriad applicable public and private interest factors, the Court must also balance the significant relationship between Malaysia and the claims brought in these cases, on the one hand, against the manifestly less-substantial connection between the Flight MH370 disaster and the United States, on the other. The substantial connections that exist between the country of Malaysia and the tragic incident that precipitated the legal actions that comprise the instant MDL are undeniable, as explained below. Boeing's role as the missing plane's manufacturer and the alleged U.S. citizenship or resident status of a few of the named plaintiffs and decedents are significant considerations too, but this Court's assessment of the established forum non conveniens factors compels the conclusion that neither the Montreal Convention claims nor the wrongful death and products liability claims that are at issue in these cases are ultimately more conveniently litigated in the United States than in Malaysia. As a result, and for the reasons discussed below, the Court concludes that Defendants' motion for dismissal based on forum non conveniens must be granted, and the 40 pending cases that compromise this MDL must be dismissed.
A. On Balance, And When Compared To Malaysia, The United States Is An Inconvenient Forum For The Litigation Of Plaintiffs' Montreal Convention Claims Against MAS/MAB
Six cases currently pending in this MDL assert Montreal Convention claims against MAS and MAB (and, in two instances, their affiliated insurers): two of the cases that the Podhurst Plaintiffs have filed, and four of the cases that the Motley Rice Plaintiffs have filed. See Wood v. Malaysia Airlines Berhad , 16cv0053; Gaspard v. Malaysia Airlines Berhad , 16cv0419; Smith v. Malaysia Airlines Berhad , 16cv0439; Kanan v. Malaysia Airlines Sys. Berhad , 16cv1062; Huang v. Malaysia Airlines Berhad. 16cv1063; Zhang v. Malaysia Airlines Berhad , 16cv1048. Careful consideration of the established forum non conveniens factors persuades this Court that, notwithstanding the fact that some of these cases involve U.S. plaintiffs or decedents, the Montreal Convention claims that these cases raise would be more conveniently litigated in Malaysia than the United States. See Piper Aircraft Co. , 454 U.S. at 255-56, 102 S.Ct. 252.
1. Malaysia Is An Available And Adequate Forum For Litigation Of Plaintiffs' Montreal Convention Claims
With respect to the first factor in the forum non conveniens analysis, this Court readily finds that Malaysia is an available and adequate alternative forum for litigation of Plaintiffs' Montreal Convention claims. See Giro, Inc. v. Malaysian Airline Sys. Berhad , No. 10 CIV. 5550 (JGK), 2011 WL 2183171, at *7 (S.D.N.Y. June 3, 2011) (holding that Malaysia is an adequate alternative forum under the Piper standard); Simcox v. McDermott Intl., Inc. , 152 F.R.D. 689, 700 (S.D. Tex. 1994) (same); Jayaraman v. Salomon, Inc. , No. 87 Civ. 2781 (MJL), 1991 WL 61071, at *4 (S.D.N.Y. Apr. 5, 1991) (same). The Podhurst Plaintiffs do not dispute that the Malaysian courts are available and adequate with respect to litigating these claims (see Podhurst FNC Opp'n at 20 n.30), and as noted, cases brought against MAS and MAB relating to the Flight MH370 disaster are currently pending in that country's courts (see Singh Decl. ¶ 7). Malaysia is also a signatory to the Montreal Convention, and because Malaysia is both the domicile and the principal place of business of the airline that operated Flight MH370, Malaysian courts have the power to hear Plaintiffs' Montreal Convention claims under the terms of the Montreal Convention itself. See Montreal Conv., Art. 33.
The Motley Rice Plaintiffs contend nevertheless that Malaysia is not an available and adequate forum for the purpose of the forum non conveniens analysis because, due to the Malaysian legislature's enactment of Act 765, "there is nothing left of MAS except one 'Administrator' who has no MAS property, records or assets to administer." (Motley Rice FNC Opp'n at 12.) In this Court's view, this assertion is an unpersuasive basis for continuing to litigate these matters in the United States for at least two reasons. First of all, it appears that MAS's status as a former commercial entity is immaterial to its ability to satisfy any judgment against it under the Montreal Convention or otherwise, because MAS holds an insurance policy from which claims and judgments can be paid. (See Decl. of Brendan Baxter, Ex. A to AGCS SE Pers. Juris. Mot., ECF No. 35-2, ¶¶ 20-23.) Moreover, even if MAS is judgment-proof, that status hardly compels the conclusion that the United States is a more convenient forum, which is the relevant issue with respect to the forum non conveniens analysis. Indeed, if the Motley Rice Plaintiffs are correct that MAS no longer has any assets as a result of the Malaysian legislature's enactment of Act 765, it is debatable whether they can obtain the relief they seek even if their cases remain in the United States. Cf. Hourani v. Mirtchev , 796 F.3d 1, 11-12 (D.C. Cir. 2015) (noting that the act of state doctrine "prevents federal courts from declaring invalid the official act of a foreign sovereign involving activities undertaken within its own territory" (alterations, internal quotation marks, and citations omitted) ).
In any event, it is well established that the availability and the adequacy of a forum does not turn on whether exactly the same remedy that exists in the United States is available in the foreign forum. See Piper Aircraft Co. , 454 U.S. at 247, 255, 102 S.Ct. 252 (holding that a forum is adequate so long as some remedy is available, even if the remedy is not as fulsome as in the United States); see also Chin-Ten Hsu v. New Mighty U.S. Tr. , 308 F.Supp.3d 178, 185 (D.D.C. 2018) (noting "[t]he inquiry under [forum non conveniens ] is focused on the availability and adequacy of an alternate forum, not the nuances of each party's respective advantages or disadvantages if the suit is brought abroad" (internal alterations omitted) ). It is only in "rare circumstances where the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory[ ] that it is no remedy at all, that this requirement is not met." Lueck v. Sundstrand Corp. , 236 F.3d 1137, 1143 (9th Cir. 2001) (internal quotation marks, citation, and alterations omitted). And Motley Rice has not provided any reason to suggest that plaintiffs "will be deprived of all remedies or treated unfairly" if these cases are litigated in the Malaysian legal system. Irwin v. World Wildlife Fund, Inc. , 448 F.Supp.2d 29, 33 (D.D.C. 2006). Compare id. at 34 (finding that Gabon was an adequate and available alternative forum because "the Gabonese legal system would allow plaintiffs to maintain an action against defendant to recover for injuries caused by defendant, Gabonese law recognizes claims that are similar or comparable to the claims in the complaint, and these type of claims are routinely heard in Gabon") with Nemariam , 315 F.3d at 394 (holding that alternative forum was inadequate because the legal claim could not be brought under governing law); Yueh-Lan Wang , 322 F.R.D. at 26 (same).
Accordingly, this Court finds that Defendants have satisfied the first prong of the forum non conveniens test. See Piper Aircraft Co. , 454 U.S. at 255, 102 S.Ct. 252.
2. The Balance Of The Public And Private Interests Weighs In Favor Of Litigation In Malaysia
a. Malaysia Has A Significant Public Interest In Litigating The Montreal Convention Claims That Arise From The Disappearance Of Flight MH370
As to the public interest in litigating the claims at issue, this Court finds that Malaysia has an overwhelming interest in the resolution of any Montreal Convention claims that have been asserted against its own national carrier due to one of the largest aviation disasters in Malaysian history. See, e.g., In re Air Crash Near Peixoto De Azeveda , 574 F.Supp.2d 272, 288 (E.D.N.Y. 2008) (noting that Brazil's interest in resolving litigation involving the largest aviation accident in its history "is obvious"), aff'd sub nom. Lleras v. Excelaire Servs. Inc. , 354 F. App'x 585 (2d Cir. 2009) ; see also Torreblanca de Aguilar v. Boeing Co. , 806 F.Supp. 139, 144 (E.D. Tex. 1992) (finding that Mexico had "the paramount interest in this lawsuit" because, among other things, the airline at issue was "owned and regulated by the Mexican government").
To be sure, Flight MH370 disappeared when it was flying over international waters rather than over Malaysian territory (see Podhurst FNC Opp'n at 12-13 (arguing that "Flight MH370 crashed ... not in Malaysia, nor anywhere near Malaysia, but [in the ocean] thousands of miles away") ), but Malaysia's myriad connections to that flight are undeniably substantial. It was Malaysia's national air carrier-MAS-that operated Flight MH370, and the ill-fated aircraft departed from an airport in Kuala Lumpur shortly before its disappearance, as detailed and documented in Part I.A.1 above. Malaysian air traffic controllers were the last persons to have direct contact with the pilot and crew, who were themselves Malaysian citizens. And after the aircraft vanished, Malaysian officials were responsible for leading the civil safety investigation pursuant to an international treaty. Malaysian authorities further conducted a separate criminal investigation concerning individuals who were known to have contact with the flight and/or aircraft, and the Malaysian court system has now undertaken to entertain a host of lawsuits that were filed in that jurisdiction by representatives and heirs of the decedents-in fact, 77 of the 88 Flight MH370 passengers whose interests are represented in the cases that are now before this Court are also the subject of pending Malaysian lawsuits that arise out of these same unfortunate circumstances. What is more, the Flight MH370 disaster was of such significance to the government of Malaysia that it enacted legislation reorganizing MAS and creating MAB in the wake of these events.
All of these facts underscore the very strong Malaysian interest in the Montreal Convention claims arising from this tragedy. See Air France , 760 F.Supp.2d at 846 (explaining that "France's interest is especially obvious here because it is also conducting the official civil investigation and an official criminal investigation"); Torreblanca de Aguilar , 806 F.Supp. at 144 (finding that public interest favored Mexico where, among other things, "[t]he accident investigation was conducted by the Mexican government at considerable expenditure of resources"); In re Disaster at Riyadh Airport, Saudi Arabia, on Aug. 19, 1980 , 540 F.Supp. 1141, 1152 (D.D.C. 1982) (dismissing case based on forum non conveniens where airplane was owned and operated by national corporation of proposed alternative forum and maintained in that foreign country, and where alternative forum conducted the official investigation of the accident); Lumenta v. Bell Helicopter Textron, Inc. , No. 01-14-00207-CV, 2015 WL 5076299, at *6 (Tex. App. Aug. 27, 2015) (granting forum non conveniens motion where crash occurred in Indonesia, and witnesses and relevant records related to maintenance of aircraft and air traffic control communications with aircraft before crash were located in Indonesia).
Setting aside the fact that three of the plaintiffs in the MDL cases that assert Montreal Convention claims have connections to the United States, and four of the related decedents were either citizens or legal residents of the United States-factors that are discussed separately in Part IV.A.2.c below-the United States's interest in Plaintiffs' Montreal Convention claims against MAS and MAB is relatively minor. Indeed, the best that the Motley Rice Plaintiffs can muster on this front is the argument that "the President of the United States promised these plaintiffs, families of the relatives of MH370, in English and Chinese, that the United States of America would do 'all we can to help in the search efforts to find the plane that carried your family members[.]' " (Motley Rice FNC Opp'n at 4 (alterations omitted) ). Of course, this is far from a commitment to make the U.S. court system available as a forum for the litigation of these family members' legal claims against Malaysia's national air carrier. And "given the comparatively limited interest that the United States has in resolving litigation stemming from the crash," it is relatively easy to find "that the burden on the judiciary and potential jurors if these matters were kept here is another public interest factor favoring dismissal." Air France , 760 F.Supp.2d at 847 ; see also Vivendi SA v. T-Mobile USA, Inc. , 586 F.3d 689, 696 (9th Cir. 2009) ; see also In re Disaster at Riyadh Airport, Saudi Arabia, on Aug. 19, 1980 , 540 F.Supp. at 1152 (finding that "jury duty ought not to be imposed upon the people of the United States nor should United States courts be clogged by processing these cases when the underlying accident has such tenuous contacts to the United States").
Finally, this Court notes that these cases will likely present complex conflicts-of-law questions, which is another public interest factor that weighs in favor of dismissal on forum non conveniens grounds. See Piper Aircraft Co. , 454 U.S. at 265, 102 S.Ct. 252 (noting that "the public interest factors point towards dismissal where the court would be required to untangle problems in conflict of laws, and in law foreign to itself" (internal quotation marks and citation omitted) ); see also Air France , 760 F.Supp.2d at 847 (explaining that "the possibility that French law will apply is an additional factor favoring dismissal"); Proyectos Orchimex de Costa Rica, S.A. v. E.I. du Pont de Nemours & Co. , 896 F.Supp. 1197, 1204 (M.D. Fla. 1995) ("Without deciding the choice of law issue, the court finds that the possibility that foreign law will apply weighs strongly in favor of dismissal."). Indeed, "[t]he selection of the applicable law in aircraft disaster litigation has been a vexing issue for courts over time." In re Air Crash at Belle Harbor, New York on Nov. 12, 2001 , No. MDL 1448 (RWS), 2006 WL 1288298, at *4 (S.D.N.Y. May 9, 2006) ; see also In re Air Crash Off Long Island, New York, on July 17, 1996 , No. 96-cv-7986, 1998 WL 292333, at *11 (S.D.N.Y. June 2, 1998) (noting that "[d]ifficult choice of law issues arise when an aircraft transporting people from several nations meets a tragic end in federal territory not belonging to any state"), aff'd and remanded , 209 F.3d 200 (2d Cir. 2000). Courts presiding over cases involving airline disasters have to decide whether to apply the law of the primary place of business of the airline, the law of the decedent's residence, or the law of the place where the accident took place, among other options. See In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979 , 644 F.2d 594, 604 (7th Cir. 1981). The parties here have already pointed to a variety of jurisdictions as possible sources of governing law in this case, including Malaysian law, Chinese law, the U.S. Death on the High Seas Act, and the common law of the various states where the plaintiffs initially filed their complaints. (See FNC Mem. at 42; Podhurst FNC Opp'n at 53-55.)
"The doctrine of forum non conveniens ... is designed in part to help courts avoid conducting complex exercises in comparative law." Piper Aircraft Co. , 454 U.S. at 251, 102 S.Ct. 252. It is also potentially troubling that this Court might be called upon to consider the validity of Act 765, which the Motley Rice Plaintiffs have alleged is invalid and improper. (Motley Rice FNC Opp'n at 13-16.) Questions regarding the validity of foreign laws that are effective in foreign countries are better left to courts in those countries, see Hourani , 796 F.3d at 11-12 ; thus, the possibility that this Court might have to address such complex, novel legal issues is another public interest factor that weighs heavily in favor of dismissing the Montreal Convention claim cases.
b. The Private Interests Also Generally Weigh In Favor Of Litigating Plaintiffs' Montreal Convention Claims In Malaysia
As explained above, the relevant private interest factors in the forum non conveniens analysis include "the relative ease of access to sources of proof; [the] availability of compulsory process for attendance of unwilling [witnesses] and the cost of obtaining attendance of willing[ ] witnesses; [the] possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. , 330 U.S. at 508, 67 S.Ct. 839. This Court's evaluation of these and similar private interest factors begins with the recognition that standard Montreal Convention claims are strict liability claims that ordinarily raise limited questions of fact-specifically, whether an accident occurred with respect to a carrier's aircraft, and the amount of damages suffered. See Art. 21, Montreal Conv. (imposing strict liability on a carrier for damages up to a set amount of special drawing rights). Moreover, here, in addition to the lack of any dispute regarding the existence of the Flight MH370 disaster, Plaintiffs have agreed to make all damages-related evidence available, at their own expense, in the United States. (See Podhurst FNC Opp'n at 33 n.59.) Thus, litigation of Plaintiff's strict liability Montreal Convention claims in the United States will not necessarily inconvenience Defendants.
However, with respect to the Montreal Convention claims at issue in this MDL, the private interest-balancing inquiry does not stop there, because Plaintiffs have made clear that they are seeking damages in excess of the first 113,000 special drawing rights. (See, e.g. , Compl., Wood v. Malaysia Airlines Berhad , 16cv0053, ECF No. 1, ¶ 59; Compl., Smith v. Malaysia Airlines Berhad , 16cv0439, ECF No. 1, ¶ 115.) The Montreal Convention permits plaintiffs to recover such excess damages (assuming their evidence establishes those loss values), but the carrier is also authorized to defend against any such judgment by demonstrating that the "accident is entirely attributable to events wholly outside the carrier's control." Delgado , 2013 WL 9838339, at *4. And it is that inquiry that will necessarily expand the scope of the litigation related to Plaintiffs' Montreal Convention claims such that litigating these claims in the United States could become unduly burdensome.
This is so because the logical alternative party to which MAS/MAB could point as being responsible for the disappearance of Flight MH370 is aircraft manufacturer Boeing-Plaintiffs have acknowledged (and embraced) this possibility, presumably because Boeing is a U.S. corporation. (See Podhurst FNC Opp'n at 31-35; see also id. at 35-36 (observing that the evidence pertaining to Boeing's role in manufacturing the aircraft at issue is located in the United States).) And Boeing's response to any such charge might well be to contend that the design and manufacture of the aircraft was not responsible for Flight MH370's disappearance; instead its loss was caused by some other factor-such as pilot suicide, cargo fire, or terrorism-and such allegations plainly open the door to an assessment of what, in fact, caused Flight MH370 to disappear. In other words, because a carrier sued under the Montreal Convention can cast blame on other potentially responsible parties to defend against the plaintiffs' recovery of amounts in excess of the 113,000 drawing rights strict-liability cap, and those other parties can point to other potential causes, any claim for excess damages necessarily involves the possibility of full-blown litigation into the fault issue that the strict-liability aspect of Montreal Convention claims seeks to avoid.
And, of course, once liability is at issue, MAS/MAB and any other implead defendants would be entitled to take discovery on that topic. See Fed. R. Civ. P 26(b) (authorizing parties to take discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense"). Here, liability-related evidence might include satellite-communication evidence located in the United Kingdom, debris evidence in France and Australia, and search records that are also located in Australia, and the discovery quest would also inevitably include seeking the potentially vast amounts of materials and information that are located in Malaysia, including personnel files, airline maintenance records, manuals, air traffic control recordings, video recordings, cargo records, and bank records. See Pain , 637 F.2d at 786-87 (noting that maintenance records and accident reports prepared by a foreign government were relevant to an aircraft manufacturer's defense or tort claims arising from crash). Many relevant witnesses are also located in Malaysia, including airline employees, family members and acquaintances of the crew, air traffic controllers, cargo shippers, and Malaysian investigators, among others. And the fact that Malaysia is not a party to the Hague Convention means that the only way to enforce any discovery requests on any unwilling Malaysian parties would be through the "burdensome, costly, and time-consuming" letters rogatory process.
Quaak v. KPMG Bedrijfsrevisoren , 361 F.3d 11, 21 & n.4 (1st Cir. 2004). (See also FNC Mem. at 31; Podhurst FNC Opp'n at 42 (acknowledging that Malaysia is not subject to the Hague Convention).)
Courts regularly find that the inability to compel witnesses and evidence except through letters rogatory is a compelling factor that weighs in favor of dismissal based on forum non conveniens. See, e.g., Tazoe v. Airbus S.A.S. , 631 F.3d 1321, 1331 (11th Cir. 2011) (affirming forum non conveniens dismissal where United States court "lack[ed] the authority to compel certain witnesses to attend proceedings in that jurisdiction"); Clerides v. Boeing Co. , 534 F.3d 623, 630 (7th Cir. 2008) (affirming forum non conveniens dismissal where "the court concluded reasonably that the superiority of live testimony and the inconvenience of taped depositions obtained by letters rogatory favored dismissal"). This Court considers this potential practical problem to be a compelling argument that supports dismissal of the instant cases.
Plaintiffs' response is to insist that there is really no need to look at Malaysian sources of evidence, nor should the Court be concerned about the difficulty of enforcing any discovery-related subpoenas, because the Annex 13 Safety Investigation did not unearth any issues with maintenance of the plane, the pilots, the weather, cargo, or anything else that pointed to the cause of the incident, so it is safe to assume that no relevant evidence currently exists in Malaysia. (See Motley Rice FNC Opp'n at 4 ("[A]lmost no evidence is in Malaysia-a fact confirmed in Malaysia's Safety Investigation for MH370."); Mot. Hr'g Tr. (Dec. 19, 2017), ECF No. 90, at 39:25-40:1 (arguing that "there is no evidence in Malaysia relevant to the question of what happened to this plane").) Plaintiffs fail to cite a single case that squarely supports the proposition that a civil defendant is barred from revisiting issues and evidence that were explored during an investigation conducted under Annex 13 of the Convention on International Civil Aviation, much less that a court must grant preclusive effect to the conclusions of any such Annex 13 investigation in the context of related civil litigation. Rather, it is axiomatic that civil defendants have the right to develop and present their defense, and in this case, because Plaintiffs are seeking damages in excess of the strict-liability drawing rights cap, the defense would necessarily involve discovery pertaining to the issue of fault, including exploration of any and all potential causes of the disappearance of Flight MH370. See Nolan v. Boeing Co. , 762 F.Supp. 680, 683 (E.D. La. 1989), aff'd , 919 F.2d 1058 (5th Cir. 1990).
Two final points bear noting. First, except as discussed in Part IV.A.2(c) below, the vast majority of the Montreal Convention decedents appear to have no connections whatsoever to the United States or Malaysia. 42 of the 45 decedents who are referenced in Motley Rice's cases, in particular, are citizens of China. (See , Compl., Zhang v. Malaysia Airlines Berhad , 16cv1048, ECF No. 1, ¶¶ 42, 44-84; Compl., Kanan v. Malaysia Airlines System Berhad , 16cv1062, ¶ 8 (naming a Malaysian decedent); Compl., Smith v. Malaysia Airlines Berhad , 16cv0439, ECF No. 1, ¶¶ 41-42 (naming two American decedents).) The plaintiffs who are proceeding on behalf of these 42 individuals appear to have brought these Montreal Convention claims in the United States solely by virtue of Defendants AGCS SE American and Haagen-alleged reinsurers of MAS/MAB who purportedly do business in the United States. (See Pls.' Resp. in Opp'n to Def. MAB's Mot. to Dismiss Pls.' Compls. on the Ground of Lack of Subject Matter Jurisdiction Pursuant to the Montreal Convention, ECF No. 66 at 12-13.) This means that most of the evidence related to the damages claimed in Motley Rice's cases will likely be located in China or Malaysia. And it is no more convenient to have that evidence translated into English and brought to the United States than it is to have that evidence translated to Malay and brought to the Malaysian courts to be considered along with any other evidence pertaining to both damages and liability that the parties will marshal in litigating the expanded universe of issues that these Montreal Convention claims raise. See In re Air Crash at Madrid, Spain, on Aug. 20, 2008 , 893 F.Supp.2d 1020, 1033 (C.D. Cal. 2011) (noting that "no matter where these suits are tried, one side will face difficulty in gathering evidence and presenting witnesses for its case"), amended on reconsideration in part sub nom. In re Air Crash at Madrid, Spain , No. 2:10-ML-02135-GAF, 2011 WL 2183972 (C.D. Cal. May 16, 2011), and aff'd sub nom. Fortaner v. Boeing Co. , 504 F. App'x 573 (9th Cir. 2013).
The second residual point is the fact that, because Plaintiffs have opted to sue both MAS and MAB (on the grounds that MAB is, in effect, a successor to MAS), evidence regarding the contractual relationship between these two entities is likely to be relevant to any determination of which entity is responsibility for the payment of damages with respect to Plaintiffs' Montreal Convention claims. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V. , 247 F.Supp.3d 76, 88 (D.D.C. 2017) (explaining that a successor corporation generally does not assume liabilities of predecessor unless, among other things, there was an agreement to transfer the liabilities). That evidence, too, will be undoubtedly be located in Malaysia-yet another factor that weighs in favor of dismissal of Plaintiffs' Montreal Convention claims on forum non conveniens grounds.
c. The Fact That Some Of Plaintiffs' Montreal Convention Claims Involve Plaintiffs Or Decedents With United States Connections Is Insufficient to Alter The Outcome
The strongest point that Plaintiffs make in favor of maintaining the Montreal Convention claims against MAS/MAB in United States courts is the fact that a plaintiff's choice of forum generally controls, and that some of the plaintiffs and/or decedents in the cases at issue here have connections to the United States. (See Podhurst FNC Opp'n at 21-22.) It is clear beyond cavil that, when faced with a motion seeking dismissal based on forum non conveniens , a court must grant deference to a plaintiff's choice of forum. See Piper Aircraft Co. , 454 U.S. at 255, 102 S.Ct. 252. The level of deference varies based on the nationality of the plaintiff, with a foreign plaintiff being entitled to less deference than a domestic plaintiff. Id. at 255-256, 102 S.Ct. 252 ; see also Ravelo Monegro v. Rosa , 211 F.3d 509, 514 (9th Cir. 2000) (noting that "less deference is not the same thing as no deference"). "The presence of American plaintiffs, however, is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens "; rather, a court must still conduct the Piper Aircraft balancing test. Cheng v. Boeing Co. , 708 F.2d 1406, 1411 (9th Cir. 1983) ; see also Pain , 637 F.2d at 795-99 (holding that a district court did not abuse its discretion in granting forum non conveniens motion, notwithstanding the presence of an American plaintiff, when aviation accident took place in the North Sea).
Two of the Montreal Convention plaintiffs in this MDL, Smith and Gaspard, are United States citizens who are the personal representatives of the estates of decedent passengers, and their choice of forum is therefore afforded deference under Piper Aircraft . See Piper Aircraft Co. , 454 U.S. at 255, 102 S.Ct. 252. However, it is not readily apparent that either Smith or Gaspard had any pre-accident connection to the decedents, and the possibility that they were selected solely for purposes of this litigation cases doubt on the suggestion that their choice of forum warrants significant deference. (See Gaspard v. Malaysia Airlines Berhad , 16cv0419; Smith v. Malaysia Airlines Berhad , 16cv0439.) See also Piper Aircraft Co. , 454 U.S. at 239, 102 S.Ct. 252 (noting that personal representative "was a legal secretary to the attorney who filed this lawsuit" and did "not know any of the decedents or their survivors"). Plaintiff Gaspard represents, among others, a family of three decedents, Rui Wang (who was employed by an American company and the provider of the family), Weiwei Jiao, and Shuling Dai (collectively, the "Wang Decedents"). (See Gaspard Compl., ECF No. 1, ¶¶ 3-7; Podhurst FNC Opp'n at 33.) Plaintiff Smith represents, among others, Nicole and Leo Meng, minor children who were United States citizens by birth and who resided with their parents in China. (See Smith Compl., ECF No. 1, ¶¶ 39-42.) Smith also represents Meng Zhang, a Chinese citizen who held a United States green card, and who was residing in China with her new husband when she flew aboard Flight MH370. (See id. ; see Motley Rice Montreal Convention Opp'n at 6.)
Only one other Montreal Convention plaintiff has any connection to the United States: Thomas Wood, who is a United States citizen and the personal representative of his brother, Flight MH370 decedent Philip Wood, who was also a United States citizen. (See Wood v. Malaysia Airlines Berhad , 16-cv-0053.) This Court will afford Thomas Wood's choice of forum the highest degree of deference. See Piper Aircraft Co. , 454 U.S. at 255, 102 S.Ct. 252. Decedent Wood worked for IBM and resided in Texas until late 2010/early 2011, when he moved to China for a three-year international assignment, following his separation from his wife. (See Pls.' Resp. to Malaysia Airlines' Motion to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 63, at 40.) While in China, Wood began a romantic relationship, and thereafter moved to Malaysia when he accepted a two-year assignment with IBM-Malaysia in Kuala Lumpur. This assignment would have ended in February of 2016 (and could have been renewed for additional terms). (See id. at 21 n.37, 40.)
Notably, the fact that all of the decedents were living abroad (i.e., not in the United States) at the time of their deaths is an additional consideration to be taken into account when determining what weight to give to the United States connections that Plaintiffs have asserted in these cases. See Varnelo v. Eastwind Transp., Ltd. , No. 02-cv-2084, 2003 WL 230741, at *12 (S.D.N.Y. Feb. 3, 2003) (noting the choice of forum of "an expatriate U.S. citizen living abroad" is afforded a "diminished degree of deference"). As the Second Circuit has explained, United States residence supports a plaintiff's choice to litigate in the United States "not because of chauvinism or bias in favor of U.S. residents" but "rather because the greater the plaintiff's ties to the plaintiff's chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction." Wiwa v. Royal Dutch Petroleum Co. , 226 F.3d 88, 102 (2d Cir. 2000). Alternatively, where a plaintiff (or the decedent whom that plaintiff represents) is (or was) located overseas, the inconvenience of having to litigate issues pertaining to damages and other matters in a non-U.S. forum is somewhat lessened.
With the relative degrees of deference that must be afforded to these U.S.-connected plaintiffs and/or decedents in mind, this Court has undertaken to determine whether the balance of the public and private interests discussed above shifts. With respect to the Wang Decedents, the United States' interest in these claims is still minimal, as the sole connection to this country (other than the citizenship of the personal representative) is the fact that the Wang Decedents' tickets were purchased through a US-based online travel agent. (See Gaspard Compl. ¶ 18(g).) Likewise, the United States has a relatively minor interest in claims associated with the death of Zhang, because although she was a United States green card holder, she had been residing in China with her new husband in the years prior to her death. (See Resp. to MAS's and MAB's Interrogs. for Passenger Meng Zhang, at Nos. 3-12, Ex. 51 to Montreal Convention Mem., ECF No. 38-52.) By contrast, the United States interest in the claims related to the Meng children and Decedent Wood is substantial, because these decedents are citizens of the United States. See Air France , 760 F.Supp.2d at 847 (acknowledging "the importance of making courts in this country available to American citizens").
In AirFrance , the court considered whether or not to dismiss on forum non conveniens grounds Montreal Convention claims that had been brought by U.S.-citizen plaintiffs involving U.S.-citizen decedents, see Air France , 760 F.Supp.2d 832, and was unmoved by the suggestion that the citizenship status of the small number of represented parties was sufficient to sway the analysis toward maintaining the lawsuits in the United States. The AirFrance litigation arose from the crash over the Atlantic Ocean of an Air France flight that had "left Brazil for France carrying a plurality of French citizens and just two Americans living abroad at the time of the crash[,]" and the AirFrance plaintiffs had sued the American companies that manufactured component parts of the aircraft, among others, in United States courts. Id. at 845. In the context of its forum non conveniens analysis, the court specifically found that, while "the American interest here, ensuring the quality of component parts on aircraft and protecting the rights of two American citizens , is real and legitimate[,]" it was "less significant than the French interest." Id. (emphasis added).
So it is here. All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States (see Part IV.A.2.a., supra ), and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370. Thus, just as the AirFrance court found that France had a greater public interest in the Montreal Convention claims concerning U.S. plaintiffs and decedents than the United States did, so too does this Court find that, on balance and comparatively speaking, Malaysia has a greater public interest in the instant Montreal Convention claims, even taking into account the United States citizenship of plaintiffs Wood, Smith, and Gaspard, and of Philip Wood and the Meng children.
In addition to this public interest, this Court must also consider the private interests that, as noted above, implicate the practicality of litigating a particular matter in one forum or another. See Am. Dredging Co. , 510 U.S. at 448, 114 S.Ct. 981 (requiring the court to consider, among other things, access to sources of proof, enforceability of judgment, and the location of relevant evidence and witnesses). When considering the Montreal Convention claims of plaintiffs and decedents with connections to the United States, the most substantial difference on the private interest front could be the location of, and access to, evidence and witnesses regarding damages. However, no such differences exist with respect to the Meng children who, while United States citizens, spent almost all of their lives with their parents in China. (See Resps. to MAS's and MAB's First Set of Interrogs. for Bing Meng, at Nos. 2-3, Ex. 14 to FNC Mem., ECF No. 37-16.) Zhang and the Wang Decedents are on somewhat different footing: Zhang had some employment history in the United States and allegedly intended to return there, even though her most recent work history appears to have been in China (see Motley Rice Montreal Convention Opp'n at 6), and Rui Wang's wages from a U.S.-based employer supported the Wang Decedents (See Podhurst FNC Opp'n at 33). Likewise, evidence regarding damages in regard to Decedent Wood's estate and his heirs will likely be located in the United States, given his United States citizenship and family connections, and his employment with IBM. (See Podhurst FNC Opp'n at 32-33.)
Nevertheless, as discussed in Part IV.A.2.b., supra , the relevant evidence in this case extends beyond damages and into the realm of causation. And as far as this Court can tell, a substantial amount of this causation evidence is located outside of the United States, including documentary items such as cargo records, personnel files, airline maintenance records, manuals, air traffic control recordings, video recordings, and bank records, as well as witnesses, such as crew family members, air traffic controllers, cargo shippers, and maintenance technicians. See Pain , 637 F.2d at 786-87. Cf. In re W. Caribbean Crew Members , 632 F.Supp.2d 1193, 1201-03 (S.D. Fla. 2009) (denying forum non conveniens motion where plane was located in United States for 19 years before crash, and relevant maintenance records were therefore located in the United States). As explained, significant practical problems with gathering such evidence could arise in the context of both discovery and trial, even taking into account that some of the damages evidence would be located in the United States with respect to these claims. See Tazoe , 631 F.3d at 1335 (finding that district court did not abuse its discretion in dismissing claims arising from death of an American citizen in a plane crash that occurred in Brazil where the defendant manufacturers' "inability to compel third-party witnesses or the production of documents from those witnesses, and the inability to implead potentially liable third-parties, is both unusually extreme and materially unjust"). Indeed, even where claims involving United States parties are involved, courts considering forum non conveniens motions regularly find that "difficulties in obtaining testimony and evidence located in foreign jurisdictions is a strong factor favoring forum non conveniens dismissal." Torreblanca de Aguilar , 806 F.Supp. at 144 ; see, also, e.g., Clerides , 534 F.3d at 629-30 ; Lleras , 354 F. App'x at 587.
To summarize, after considering the availability and adequacy of Malaysia as an alternative forum for ligating Plaintiffs' Montreal Convention claims, balancing the relative public interests of Malaysia and the United States in resolving these claims, and weighing the private interests that inform whether litigating in Malaysia would be substantially more convenient than in the United States, this Court has determined that the substantial and overriding connections to Malaysia outweigh the connections these claims have to the United States, such that forum non conveniens dismissal is warranted here.
B. On Balance, Malaysia Is A More Convenient Forum Than The United States For Litigating Plaintiffs' Wrongful Death And Products Liability Claims Against Boeing
Thirty-five of the cases currently pending in this MDL assert wrongful death and products liability claims against Boeing. (See Notes 14, 16-17, supra (listing 32 Podhurst products liability cases and three Motley Rice products liability cases).) Podhurst and Motley Rice have filed these cases on behalf of various plaintiffs. Five of the products liability plaintiffs (Wood, Gaspard, Li Li, Smith, and Keith) are United States citizens, as are three of the various decedents these plaintiffs represent (Philip Wood, Nicole Meng, and Leo Meng). One products liability plaintiff resides in the United States (Yang Chen). In addition, one of the decedents represented in the products liability cases (Meng Zhang) held a United States green card.
While the public and private considerations with respect to these claims differ from those inv