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Lacey v. Cessna Aircraft Co.

filed: April 23, 1991; As Corrected August 6, 1991.


On Appeal From the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 87-01506.

Becker and Nygaard, Circuit Judges and Louis H. Pollak, District Judge.*fn* Pollak, District Judge, concurring. Nygaard, Circuit Judge, dissenting.

Author: Becker


BECKER, Circuit Judge

This appeal requires us to revisit the doctrine of forum non conveniens and to explore again the impact of Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), on that doctrine. The setting is the marathon struggle of Graeme MacArthur Lacey, an Australian citizen who suffered severe burns as a result of a plane crash in British Columbia, to litigate his products liability action in the Western District of Pennsylvania. Lacey's antagonists are Cessna Aircraft Company ("Cessna"), the manufacturer of the aircraft; Teledyne, Inc. ("Teledyne"), the manufacturer of the aircraft's engines; and Hanlon & Wilson Company ("Hanlon & Wilson"), the manufacturer of the aircraft's exhaust system. These defendants insist that Lacey's action cannot proceed fairly in the Western District of Pennsylvania, and that instead it should be litigated in British Columbia.

The district court, accepting defendants' arguments, dismissed Lacey's suit on forum non conveniens grounds. We reversed, holding, inter alia, that the defendants had not submitted sufficient evidence to facilitate proper forum non conveniens analysis, and that the district court had not adequately considered the relevant private and public interest factors outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), and in Piper. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 49 (3d Cir. 1988). On remand, the district court again dismissed Lacey's suit, conditioning its dismissal on the fulfillment of several requirements, most notably on the defendants' agreement to "make available to plaintiff in British Columbia, for discovery and trial, all relevant witnesses and documents within defendants' control." Lacey v. Cessna Aircraft Co., 736 F. Supp. 662, 669 (W.D. Pa. 1990). The district court, in response to our earlier reversal, accorded specific deference to Lacey's forum choice and analyzed seriatim the private and public interest factors. In so doing, the court concluded that the relevant factors preponderate strongly in favor of proceeding in British Columbia. This appeal followed.

Lacey challenges the court's second forum non conveniens dismissal on numerous grounds. Positing that there is a special obligation on defendants to proceed expeditiously with forum non conveniens motions, Lacey attacks as an abuse of discretion the court's decision to admit certain untimely materials, particularly Hanlon & Wilson's "statement of position." Absent this submission, Lacey claims, defendants' forum non conveniens motions would have failed as a matter of law. Additionally, Lacey insists that the district court's forum non conveniens analysis is flawed because the court failed: (1) to indicate with the requisite precision the amount of deference due plaintiff's forum choice; (2) to "entangle" itself sufficiently in the facts of the case; and (3) to analyze adequately and correctly the relevant private and public interest factors.

With respect to this latter point, Lacey places particular emphasis on the court's assessment of three factors, namely, relative ease of access to sources of proof, application of foreign law, and relative advantages and obstacles to a fair trial. He argues that the district court's treatment of these factors was in error because it incorrectly: (1) assumed that the evidence essential to plaintiff's products liability claim is in defendants' control; (2) concluded that plaintiff would be able to discover in British Columbia evidence in the possession of non-parties in the United States; (3) determined that British Columbia law would apply if this case were to proceed in the Western District of Pennsylvania; and (4) assigned dispositive weight to the possibility of joining all potentially culpable parties in British Columbia.

Many of Lacey's challenges fall well short of the mark. In particular, we think that the district court: (1) acted within its discretion in accepting Hanlon & Wilson's untimely submission; (2) accorded adequate weight to plaintiff's forum choice; and (3) immersed itself sufficiently in the facts of the case. Furthermore, we are mindful that the district court's forum non conveniens determination may be reversed only if there has been a clear abuse of discretion. If the district court has considered and balanced reasonably all of the relevant private and public interest factors, we must affirm. Piper, 454 U.S. at 257. Despite our deferential standard of review, we believe, regretfully, that Lacey has identified a serious shortcoming in the district court's analysis that requires yet another remand.

At this stage of the litigation, the crux of Lacey's complaint is that a defect in the aircraft's exhaust system, which allegedly was manufactured by Hanlon & Wilson in Pennsylvania, caused the crash. That theory is supported by the final report of the Canadian Aviation Safety Board ("CASB"). In May of 1985, however, Hanlon & Wilson sold its aircraft exhaust system business to an Oklahoma corporation and transferred to that company all of the documents pertaining thereto. As a result, and contrary to the assumption on which the district court's order overtly depends, Hanlon & Wilson now represents that no documents relating to or personnel familiar with the company's prior aircraft exhaust business are under its control. Lacey therefore contends that the court's order requiring defendants to produce in British Columbia all relevant witnesses and documents in their custody is inadequate to ensure his access to sources of proof. We agree. Lacey also submits that this problem is exacerbated by his inability to discover in British Columbia, or, still more important, ultimately obtain, evidence within the control of non-parties in the United States. We think that this submission has force as well.

In dismissing Lacey's action, the district court did not consider the impediments that Lacey might face in gaining access to sources of proof in British Columbia, impediments that potentially rob British Columbia of its practical value as a forum. In view of this error, as well as other subsidiary points discussed below, we are unable to defer to the district court's conclusion "that the public and private interests both preponderate strongly in favor of dismissal." 736 F. Supp. at 669. Rather, we think that an order which dismisses a suit on forum non conveniens grounds without taking into account a critical limitation on the plaintiff's ability to prosecute his or her action in the alternative forum constitutes an abuse of discretion. We therefore will reverse the district court's dismissal of Lacey's suit and remand the case with instructions to determine whether Lacey would have access in British Columbia to witnesses and documents essential to his products liability action. If Lacey would not have access to essential evidence at trial in British Columbia, we believe that the court must deny defendants' motions to dismiss. In the course of our extended discussion, we will explain why this holding fully comports with the Supreme Court's decision in Piper.


Because the instant undertaking represents the fifth published opinion this case has spawned,*fn1 we will abbreviate our recitation of the facts. Lacey is an Australian citizen who, in 1985, was working temporarily in British Columbia for that province's forest service. Lacey boarded a Cessna 421A aircraft for a non-scheduled passenger flight from Invermere Airport to Kamloops, both of which are in British Columbia. Five people, in addition to Lacey, were on board -- the pilot, Chris Pederson, and four other passengers, all of whom were residents of British Columbia. Almost immediately after takeoff, the aircraft's right engine lost power, and the plane crashed in a clearing not far from the runway. Lacey, the other passengers, and the pilot were able to exit the aircraft, but they sustained serious burn injuries. Lacey was treated for three months at Foothills Hospital in Calgary, and then transferred to a hospital in Melbourne, Australia. After the crash, certain parts of the aircraft were sent to the CASB for examination. The CASB's final report attributed the crash to the plane's exhaust system, stating that "the right engine lost power when metal pieces from the deteriorating internal sliding sleeves in the exhaust stack entered the turbocharger and prevented the turbine from turning."

The Cessna 421A in which Lacey was a passenger was manufactured by Cessna, a Kansas corporation with its principal place of business in Kansas. The aircraft's engines were manufactured by Teledyne, a Delaware corporation with its principal place of business in California, and the aircraft's exhaust system was manufactured by Hanlon & Wilson, a Pennsylvania corporation with its principal place of business in Pennsylvania. The actions of the following non-party British Columbia corporations were also implicated by the crash: Sunrise Aviation Ltd., which operated the aircraft; Shaffer Aero Ltd., which maintained the aircraft; and Warner Aviation Ltd. or Capital Glass Ltd., which owned or leased the aircraft.

On July 17, 1987, Lacey instituted the instant diversity action in the district court for the Western District of Pennsylvania seeking compensatory and punitive damages. Two months later, defendants Cessna, Hanlon & Wilson, and Teledyne moved separately to dismiss Lacey's suit on forum non conveniens grounds. Claiming that the crash was caused either in whole or in part by pilot error or by negligent maintenance, and noting that both the pilot and the corporations responsible for maintaining the aircraft are citizens of British Columbia and not subject to the district court's personal jurisdiction, the defendants asserted that this case cannot proceed fairly in the Western District of Pennsylvania.

On November 9, 1987, the district court granted defendants' motions, concluding that the forum non conveniens issue is "resolved quite simply by reference to Piper." 674 F. Supp. at 11. The court condensed its entire analysis into three paragraphs:

The case at bar closely mirrors Reyno, and all the factors suggest a more appropriate forum is British Columbia, Canada. None of the potential witnesses, on either liability or damages, are located here. All are clearly beyond the reach of compulsory process. Even those persons plaintiff identifies as witnesses on the issue of product defect are located in such places as Witchita [sic], Kansas, Oklahoma City, Oklahoma, and Burbank, California, all inconvenienced by this forum as much as by British Columbia. The plane itself and all other physical evidence is located in Canada. Plaintiff's physicians and all medical records and damages evidence are located in either Canada or Australia. Such pertinent information as plane maintenance reports, weather information, and crash investigations is located in Canada.

In short, Pennsylvania's only connection with the litigation is the fact that defendant Hanlon & Wilson is a Pennsylvania corporation. Consequently, Pennsylvania has at best a negligible interest in this matter, in contrast to that of British Columbia. In stark counterpoint to this forum's lack of interest in the matter is the burden imposed. The length and complexity of the case would appear to be considerable, and the choice of law principles may require us to divine and apply Canadian or Australian law.

This forum having only a tangential interest in the subject matter of the case at hand, and this forum imposing serious inconvenience on the witnesses and parties alike, the action will be dismissed on the basis of forum non conveniens. An alternative forum, convenient to more of the witnesses and the situs of important physical evidence, is British Columbia, Canada.


Although the legal profession generally extols conciseness as a virtue, in this particular instance, we held that the court's brevity was a vice:

A district court abuses its discretion when it summarily grants or denies a motion to dismiss on forum non conveniens grounds. Rather, the district court is required to develop adequate facts to support its decision and to articulate specific reasons for its conclusion.

862 F.2d at 39. Concluding that the district court had not fulfilled this responsibility, we remanded for further consideration. Lacey's suit thereafter lay dormant for almost four months, until the district court ordered the defendants to submit supplemental briefs and supporting evidentiary material. Cessna and Teledyne filed their material before the court's March 31st deadline, but Hanlon & Wilson did not, prompting Lacey to object "loudly." Although the district court "share[d] plaintiff's distaste for defendant's delay," 717 F. Supp. at 365-66, it allowed Hanlon & Wilson to state its position with respect to Cessna's and Teledyne's forum non conveniens arguments by filing its own papers, which Hanlon & Wilson ultimately did on August 25th.

Upon review of the affidavits and supplemental briefs submitted by the parties on remand, the court again dismissed Lacey's complaint. Heeding our instructions, the court acknowledged that although Lacey is a foreign citizen, his forum choice is entitled to "at least some weight." The district court accordingly stated that it would "not lightly disturb plaintiff's choice of forum" and that it would "hold defendants to establishing a strong preponderance in favor of dismissal." 736 F. Supp. at 664.

The district court then analyzed each of the relevant private and public interest factors. It determined that certain factors favor dismissal (relative ease of access to sources of proof, relative advantages and obstacles to a fair trial, imposition of jury duty on people of an unrelated forum, local interest in local controversies, application of foreign law, and the ability of a forum to deal with the litigation as a whole); that other factors are neutral; and that no factors favor keeping the case in Pennsylvania. Overall, the court concluded that "the public and private interests both preponderate strongly in favor of dismissal." Id. at 669. This dismissal, however, was "conditioned on several items designed to protect plaintiff and to ameliorate to the extent possible any inconvenience imposed on plaintiff by discovery and trial in British Columbia." Id.*fn2

Lacey advances several contentions on appeal. He argues, first, that the district court abused its discretion in allowing Hanlon & Wilson to submit out of time its "statement of position." He asserts, second, that the court failed adequately to assess the deference due his forum choice. Finally, Lacey contends that the district court's examination of the various relevant factors involved both abuses of discretion and errors of law. We will examine each of these arguments in turn.


Throughout his brief, Lacey takes the defendants to task for failing to prosecute vigorously their motions to dismiss after the case was remanded to the district court. Lacey also criticizes the district court for not strictly enforcing its own deadlines. The legal anchor for these claims is Lacey's theory, grounded in certain language in In re Air Crash Near New Orleans, La. on July 9, 1982, 821 F.2d 1147 (5th Cir. 1987), vacated on other grounds sub nom. Pan American Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S. Ct. 1928, 104 L. Ed. 2d 400 (1989), that defendants have a special obligation to proceed expeditiously with forum non conveniens motions. Lacey points out that the defendants waited almost four full months following our remand before taking any action and that they acted at that time only because of the district court's prodding. Lacey protests, further, that even after the district court set a deadline for the parties' submissions, Hanlon & Wilson still did not timely file any material. More importantly, Lacey notes that the district court allowed Hanlon & Wilson to file papers almost five months after the deadline.

A few of Lacey's challenges can be dispatched without much discussion. To begin with, the four-month delay between our remand and the district court's order setting a briefing schedule was not excessive. Given the substantial caseload with which the district court has been saddled and the priority accorded criminal trials, it is not remarkable that the matter remained idle for almost four months. Nor do we think that defendants were obliged to prod the court on remand. Lacey was, of course, free to approach the district court immediately following our order and ask it to set a prompt briefing schedule. Furthermore, Lacey has not identified any prejudice stemming from the delay, and absent such a showing, we prefer to allow the district court substantial discretion in managing its own docket.*fn3

The main target of Lacey's timeliness contention is Hanlon & Wilson's conduct, which he characterizes as "dilatory in the extreme." Lacey argues that the district court improperly permitted Hanlon & Wilson to state its position almost five months after the court's cutoff date for such submissions had passed. If the district court had not accepted Hanlon & Wilson's submission, Lacey contends, defendants' forum non conveniens motions would have failed as a matter of law. To be a suitable alternative forum, the foreign jurisdiction must have jurisdiction over all defendants. See infra [Slip Op.] at 21. Lacey claims that Hanlon & Wilson did not consent to British Columbia's jurisdiction until it filed its "statement of position." Hence, Lacey asserts, without Hanlon & Wilson's untimely submission, British Columbia would not have been an adequate alternative as to all defendants.

Lacey's timeliness argument is derived primarily from In re Air Crash. In that case, the Fifth Circuit stated:

[A] defendant must assert a motion to dismiss for forum non conveniens within a reasonable time after the facts or circumstances which serve as the basis for the motion have developed and become known or reasonably knowable to the defendant. While untimeliness will not effect a waiver, it should weigh heavily against the granting of the motion because a defendant's dilatoriness promotes and allows the very incurrence of costs and inconvenience the doctrine is meant to relieve.

821 F.2d at 1165 (citations omitted). Since the information contained in Hanlon & Wilson's "statement of position" was "reasonably knowable" to that defendant long before the court's March 31st deadline, Lacey asserts that consideration of Hanlon & Wilson's submission was precluded by In re Air Crash.

Contrary to Lacey's assertions, the Fifth Circuit's main concern in In re Air Crash was the timeliness of the defendant's motion itself, not the timeliness of supporting papers. See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure ยง 3828, at 291 (2d ed. 1986) ("If the litigation has progressed significantly in the federal court a defendant's belated assertion that that forum is not a convenient one is likely to be dimly viewed by the court."), cited in In re Air Crash, 821 F.2d at 1165. In requiring defendants to make their motions in a timely manner, the In re Air Crash court sought to prevent eleventh-hour forum non conveniens motions. If a defendant raises a forum non conveniens objection "'"for the first time after the defendant has answered, taken depositions, proceeded to pretrial and caused the plaintiff to incur expense in preparing for trial,"'" such delay should weigh against granting the motion. Creamer v. Creamer, 482 A.2d 346, 353 (D.C. 1984) (citations omitted), cited in In re Air Crash, 821 F.2d at 1165.

In this case, however, the timeliness of Hanlon & Wilson's original forum non conveniens motion has never been at issue. In fact, Lacey was fully apprised of Hanlon & Wilson's position within three months of filing his complaint. When we reversed the district court's first dismissal, we stated that defendants had not submitted adequate information in support of their motions. The district court thereafter instructed the defendants to file "a Supplemental Brief and any evidentiary material in support of their Motion to dismiss." It was implicit in this order that defendants' earlier motions were still pending, and that the district court simply sought further supporting material as required by our reversal.

The issue then becomes whether the district court abused its discretion by allowing Hanlon & Wilson to submit untimely supporting material. Because Hanlon & Wilson was not on record as opposing or acquiescing in its co-defendants' post-remand forum non conveniens arguments,*fn4 the district court "require[d] [Hanlon & Wilson] to state its position . . . either by filing its own motion and brief, or by joining in the other defendants' motions, or by filing a Response to those motions." 717 F. Supp. at 366. The decision whether to penalize non-compliance with a deadline is entrusted to the discretion of the court that imposed it. Here, the district court determined that justice would be better served by examining "the substance of the defendant's position," than by castigating Hanlon & Wilson for its delay. Id. at 366. It is not for us to micro-manage the district court's docket.*fn5 Because we see no reason to second-guess the court's judgment, we reject Lacey's contention that the court improperly considered Hanlon & Wilson's untimely material.


A. Scope of Review

Our scope of review of the district court's forum non conveniens determination is quite constrained. As the Supreme Court stated in Piper:

The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.

454 U.S. at 257. In light of this admonition, we have held that "our review is limited to consideration of whether the district court abused its discretion, and we do not perform a de novo resolution of forum non conveniens issues." Lacey, 862 F.2d at 43. We have also held, however, that a district court abuses its discretion: (1) "when it fails to consider adequately and to determine the amount of deference due the foreign plaintiff's choice of forum," or (2) "when it clearly errs in weighing the factors to be considered." Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 632 (3d Cir. 1989).

B. Deference Due a Foreign Plaintiff's Forum Choice

In Piper, the Supreme Court remarked that although "there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, . . . that . . . presumption applies with less force when the plaintiff or real parties in interest are foreign." 454 U.S. at 255. Proceeding from this language, the district court, in its first dismissal, simply stated that Piper accorded "little weight" to a foreign plaintiff's forum choice. 674 F. Supp. at 11. On appeal, we held that this treatment was inadequate, noting that the district court had "not articulate[d] whether it accorded any deference to plaintiff's forum choice." 862 F.2d at 45 (emphasis in original). Concluding that Lacey's choice "should have been accorded at least some weight," we remanded the case to the district court with instructions to consider that neither British Columbia nor Pennsylvania is convenient to Lacey and to indicate how much deference it accords Lacey's choice. Id. at 46.

Before the district court reopened this case on remand, we decided another forum non conveniens case, Lony, in which we again commented on the deference due a foreign plaintiff's forum choice. Parsing the language of Piper, we stated that "the reason for giving a foreign plaintiff's choice less deference is not xenophobia, but merely a reluctance to assume that the choice is a convenient one." Lony, 886 F.2d at 634. We noted, however, that this reluctance "can readily be overcome by a strong showing of convenience." Id. Accordingly, we held that:

In ruling on a forum non conveniens motion, the district court must indicate the amount of deference it is giving to plaintiff's choice. Where a foreign plaintiff has made a strong showing of convenience, we hold that the district court must indicate how far that showing goes toward putting the foreign plaintiff on the same footing as a domestic plaintiff.

Id. (citation omitted).

With Piper, Lony, and our first Lacey opinion as authority, the district court proceeded to discuss the deference due Lacey's forum choice:

We recognize that a certain presumption attaches to plaintiff's choice of forum, and that choice is not to be lightly disturbed. However, the degree of deference to be accorded plaintiff's choice of forum in this case is problematic. Because plaintiff is a foreign national with no connection to the forum, his choice is not entitled to the same degree of deference accorded a resident or citizen who chooses his own forum. On the other hand, the Court of Appeals in remanding this case has indicated that, because plaintiff is forced to choose between two inconvenient fora, his choice is due "at least some weight." Of course, this provides little direction and is impossible to quantify. But suffice it to say we will not lightly disturb plaintiff's choice of forum and will hold defendants to establishing a strong preponderance in favor of dismissal.

736 F. Supp. at 663-64 (citations omitted). Lacey argues that this analysis is inadequate because the court did not indicate the "amount of deference" it accorded his forum choice. We disagree.

Lony requires a district court to indicate the amount of deference it gives a foreign plaintiff's forum choice. Unlike Lacey, we do not read this language as requiring a court somehow to mark on a continuum the precise degree of deference it accords a plaintiff's choice. Indeed, the district court in this case expressly eschewed such an illusory exercise, stating frankly that it was "impossible to quantify" the applicable level of deference. 736 F. Supp. at 663. The court instead indicated the amount of deference it accorded Lacey's forum choice by expressly imposing on defendants a more stringent burden. Specifically, the court stated that defendants must establish "a strong preponderance in favor of dismissal." This treatment, we think, satisfies both our remand instructions and the requirements set forth in Lony. Although other formulas may be equally sound, the one used here demonstrates that the court accorded not insignificant weight to the plaintiff's forum choice and indicates roughly how much weight was accorded.*fn6


The Defendants' Burden

"It is settled that the defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis." Lacey, 862 F.2d at 43-44. This burden comprises two basic elements. The defendant must establish, initially, that an adequate alternative forum exists as to all defendants. Id. at 44. If the defendant satisfies this burden, it must then ...

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