In a “split decision”, a Federal District Court in Florida dismissed to Nigeria on the grounds of forum non conveniens wrongful death actions brought on behalf of non-U.S. decedents arising out of the June 3, 2012 crash of a Nigerian domestic flight but permitted the actions on behalf of US decedents to remain in Florida.1
Dana Airlines Flight 992 crashed while attempting to land in Lagos, Nigeria, resulting in the deaths of all 153 persons on board as well as 10 people on the ground. While the majority of the actions brought in Florida were on behalf of the citizens or residents of Nigeria, a second smaller group consisted of actions where the decedent was a US citizen or resident. Although there was no basis for personal jurisdiction over Dana Airlines in the United States, plaintiffs fortuitiously located and served in the United States the daughter of the pilot who was the personal representative of her father’s estate. After limited discovery and extensive briefing, the District Court held that Nigeria was the more appropriate forum for actions brought on behalf of non-US citizens or residents and that the actions brought on behalf of decedents who were US citizens or residents could remain in the Southern District of Florida for trial.
The Court performed the ritual analysis in deciding a forum non conveniens motion, first determining whether the proposed alternative forum was adequate and available and, if so, then evaluating whether the public and private interest factors of Gulf Oil v. Gilbert2 justified retention of the actions in the United States.
In support of her motion for forum non conveniens dismissal, Defendant agreed to permit her counsel to accept service of process from a Nigerian court, to waive any statute of limitation defenses and not to contest liability in any action brought in Nigeria. Plaintiffs’ experts conceded that these stipulations made Nigeria an available forum.
Plaintiffs argued, however, that Nigeria is not an adequate forum, asserting that it is unsafe to travel there, that its judicial system is corrupt and that there are excessive delays in the civil legal system. In rejecting the plaintiffs’ argument, the Court concluded that while Nigeria may be unsafe at the present time based on State Department travel warnings, those similar warnings were in effect at the time of the accident and that every decedent had either lived or worked in Nigeria or had gone there voluntarily. Moreover, none of the safety concerns specifically related to individuals identified with the litigation. The Court also found that State Department reports of official corruption and a widespread perception that Nigerian judges are easily bribed were “exactly the types of ‘generalized anecdotal complaints of corruption’ that are insufficient to declare that a country cannot serve as an adequate forum.”3 Finally, with respect to the court delay, defendant’s expert pointed out that recent reforms to the Nigerian judicial system have reduced the delays associated with the courts.
After finding that Nigeria is an adequate and alternative forum, the Court then turned to a consideration of the private and public interest factors. With respect to the availability of evidence, the Court found that, while the liability evidence in the case resided in Nigeria, such evidence was not critical since defendant had agreed not to contest liability. The critical damages evidence, however, would likely be located where each decedent lived prior to the plane crash. Plaintiffs argued that a number of the survivors who claimed damages as a result of the decedents’ deaths were US citizens or residents, thus justifying a US forum. In rejecting this argument, the Court found that the relevant damage data was likely to be located where the decedent resided prior to the accident, not where the survivors claiming damages reside. Thus where the decedent resided in the United States, the Court declined to dismiss those actions brought on behalf of US decedents.
The Court then touched on public interest factors and concluded that Nigeria has a more compelling interest than the United States in resolving the lawsuits since the Dana Airlines accident was the second deadliest airplane crash in the history of Nigeria. Accordingly, considering the relevant factors, the Court found that Nigeria was the more appropriate and convenient forum for the litigation to proceed with respect to foreign decedents, with the United States being the more appropriate forum for litigation involving US resident or citizen decedents.
Finally, the Court dealt with an issue raised by the plaintiffs concerning “unclean hands” of the defendants with the plaintiffs claiming, somewhat reminiscent of Claude Rains’ portrayal as Captain Renault in Casablanca4, that it was “shocking and inequitable” that the defendants had settled the claim of the pilot’s estate so that they could secure the cooperation of the estate’s counsel in supporting the filing of a forum non conveniens motion. The Court pointed out neither of these events could be characterized as “shocking” since amicable settlements are highly encouraged by the judicial system. Moreover, a forum non conveniens objection in an airplane crash litigation is nothing out of the ordinary. The Court found no more shocking the defendant’s preference to defend the cases in Nigeria than the plaintiffs’ preference to litigate the cases in Florida.
The Florida Court’s decision in this matter is consistent with the current judicial trend to dismiss foreign accident cases that do not have a strong US connection and where the plaintiffs have been drawn, somewhat like a moth to the light,5 to litigate in the US courts in the hope of a more bountiful damage recovery.
1 Onita-Olojo v. Sellers, 2014 WL 1319304 (S.D. Fl. 2014).
2 330 U.S. 501, 508 (1947).
3 2014 WL 1319304, *3.
4 Renault: “I’m shocked, shocked to find that gambling is going on in here!”
Employee of Rick’s: “Your winnings, sir”.
Renault: “Oh, thank you, very much. Everybody out at once!”
5 Judge Lord Denning’s comment in Smith Kline & French Lab Ltd. v. Block,  1 W.L.R. 730.