## Facts

- On August 20, 2008, Spanair Flight JK5022, a McDonnell Douglas MD-82 aircraft, crashed during takeoff at Madrid-Barajas Airport in Madrid, Spain.
- Plaintiffs alleged the aircraft’s takeoff warning system failed to alert the pilots that the wings were not configured correctly for takeoff.
- The crash killed 154 people and injured 18; most victims, including the pilots, were Spanish nationals.
- More than 200 foreign plaintiffs (the “Spanish plaintiffs”), none of whom were U.S. citizens, filed more than 100 wrongful-death and personal-injury suits in multiple U.S. district courts.
- Plaintiffs sued McDonnell Douglas Corporation and its successor, The Boeing Company, along with other component manufacturers (collectively, the aircraft and component manufacturers).
- The actions were consolidated in a single federal district court as part of the Madrid air-crash MDL.
- Defendants moved to dismiss on forum non conveniens grounds and, as conditions of dismissal, agreed to: submit to Spanish jurisdiction, toll limitations for a specified period after dismissal, make U.S.-located evidence and witnesses available in Spain, and pay any final Spanish judgment.
- The district court granted the forum non conveniens motion and dismissed the actions subject to those conditions.
- Plaintiffs moved for reconsideration, pointing to a newly decided Spanish case involving Spanair and arguing it showed Spanish civil claims would be stayed until completion of related criminal proceedings against two airplane mechanics, causing an indefinite delay.
- In the alternative, plaintiffs asked the court to retain jurisdiction to supervise discovery involving evidence located in the United States after refiling in Spain.

## Issues

1. Whether newly presented information suggesting Spanish civil actions could be stayed pending related criminal proceedings made Spain an inadequate alternative forum, warranting reconsideration of the forum non conveniens dismissal.
2. Whether the plaintiffs satisfied the standard for reconsideration of the prior dismissal order.
3. Whether the court should retain jurisdiction to manage discovery in the United States after dismissing the merits in favor of litigation in Spain.

## Decision

- The court denied the motion for reconsideration and left the forum non conveniens dismissal in place.
- The court held Spain remained an adequate alternative forum; the chance of a stay or lengthy delay in Spain did not show plaintiffs would be left without a remedy.
- The court concluded the new Spanish decision did not change the earlier adequacy analysis or justify setting aside the dismissal order.
- The court denied plaintiffs’ request that it retain jurisdiction over U.S.-based discovery, reasoning that discovery should be managed by the court handling the merits and that continued U.S. supervision would conflict with dismissal.
- The conditional dismissal terms remained in effect, including defendants’ submission to Spanish jurisdiction, temporary limitations tolling, cooperation to make U.S. evidence and witnesses available in Spain, and payment of any final Spanish judgment.

## Legal Principles

- Forum non conveniens dismissal requires (1) an adequate alternative forum and (2) a balance of private and public interest factors favoring litigation in the foreign forum.
- A foreign forum is generally adequate when defendants are amenable to process there and the forum provides some remedy; it is inadequate only when the remedy is so clearly unsatisfactory that it amounts to no remedy.
- Possible delay, even significant delay tied to the sequencing of civil and criminal proceedings, does not by itself make a foreign forum inadequate absent a showing that claims cannot be heard or relief cannot be obtained.
- A motion for reconsideration requires more than disagreement with the court’s analysis; it must show a recognized basis for revisiting the order (such as new evidence that materially changes the result or a clear error).
- When a case is dismissed on forum non conveniens grounds, courts generally do not retain a continuing role to supervise discovery; discovery is ordinarily controlled by the forum that will decide the merits, especially where defendants agree to provide U.S.-located witnesses and evidence abroad as a condition of dismissal.
- Conditional forum non conveniens dismissals may be used to address fairness concerns by requiring defendants to accept foreign jurisdiction, waive or toll limitations for a period, assist with access to evidence, and satisfy final foreign judgments.

## Conclusion

In this MDL arising from the Spanair crash in Madrid, the district court refused to reconsider its forum non conveniens dismissal because the new materials about Spanish proceedings showed, at most, the possibility of delay while related criminal matters proceeded, not the absence of a meaningful civil remedy in Spain; the court also declined to keep a U.S. discovery role after dismissal, relying instead on the conditions requiring defendants to cooperate with access to U.S.-based evidence and witnesses in Spain.


In re Air Crash at Madrid, Spain, 893 F. Supp. 2d 1020 (2011)