Onita-Olojo et al v. Sellers

Filing 104

ORDER granting in part and denying in part 24 Defendant's Motion to Dismiss. Signed by Judge Robert N. Scola, Jr. on 3/31/2014. (rss)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-62064-Civ-SCOLA
CHRISTINA ONITA-OLOJO, as
Personal Representative of the Estate
of JENNIFER ONITA, and others,
vs.

Plaintiffs,

Consolidated Case No. 13-60443

STACEY VEOLETTE SELLERS, as
Personal Representative of the Estate of
PETER SIMON WAXTAN,
Defendant.
_____________________________________/

Order Granting In Part, Denying In Part
Defendant’s Forum Non Conveniens Motion
In June 2012, Dana Airlines Flight 992 crashed while attempting to land
in Lagos, Nigeria; everyone on board was killed. These mass-tort lawsuits
followed. The Defendant argues that these matters should proceed in the
courts of Nigeria, and that the cases should be dismissed under the doctrine of
forum non conveniens. For the reasons explained in this Order, the claims
brought by the estates of United States citizens or residents will not be
dismissed; the claims brought by the estates of non-United States citizens or
residents will be dismissed.

1. Background

There are no words to adequately explain the tragedy from which this
case emanates. In June 2012, a Dana Airlines flight crashed on approach to
the Murtala Muhammed Airport in Nigeria. One hundred and sixty-three
people died as a result of the crash; 153 on board the aircraft and 10 people on
the ground. The flight was domestic, traveling from Abuja, Nigeria to Lagos,
Nigeria.
The Plaintiffs in this case consist of the estates of many of the people
who died as a result of this plane crash. For purposes of this Order, there are
two groups of Plaintiffs. The first group is made up of those cases where the
decedent was a citizen or resident of Nigeria (or some country other than the

United Sates). 1 This group is composed of foreign (i.e., non-United States)
citizens or residents. Cf. Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1327 n.2
(11th Cir. 2010) (“An estate shares the same citizenship as its decedent.”). The
second group consists of those cases where the decedent was a citizen or
resident of the United States. These cases are considered United States
citizens or residents when evaluating if this matter should be dismissed
pursuant to the forum non conveniens doctrine. The Defendant in this case is
the estate of the pilot. Stacey Veolette Sellers is the daughter of the pilot and
serves as the personal representative of his estate.
The Defendants moved to dismiss the case on the grounds of forum non
conveniens. The parties conducted limited discovery, and have extensively
briefed the issue. For the reasons explained in this Order, and considering all
of the relevant forum non conveniens factors, this Court finds that Nigeria is the
more appropriate forum for the cases brought by non-United Sates citizens or
residents. But that the United States is the appropriate forum for the cases
where the decedent was a citizen or resident of the United States.

2. Legal Standard: Doctrine of Forum Non Conveniens

The purpose of the common-law doctrine of forum non conveniens (forum
not agreeing) is to ensure that a case can be litigated conveniently in the
setting in which it was filed. See La Seguridad v. Transytur Line, 707 F.2d
1304, 1307 (11th Cir. 1983). By virtue of the doctrine, a district court may
decline to exercise jurisdiction over a case when an adequate, alternative forum
is available. Id.
In undertaking a forum non conveniens analysis, a court must first
consider whether the proposed alternative forum is available and adequate.
See Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). “An
alternative forum is ‘available’ to the plaintiff when the foreign court can assert
jurisdiction over the litigation sought to be transferred.” Id. An alternative
forum is adequate so long as it “offers at least some relief.” Id.
If the court finds that the alternative forum is both available and
adequate, the court must then evaluate both the public and private interests
involved in retaining the case. Leon, 251 F.3d at 1311. Private interests
include “the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of the premises, . . . and all
other practical problems that make trial of a case easy, expeditious and
(Compare Third Am. Compl. ¶¶ 9-31 and 34-41, ECF No. 12 and Compl. ¶¶ 217, ECF No. 1 in Case No. 13-60443-Civ-Scola (non-United States claimants)
with Third Am. Compl. ¶ 2-8, 32-33 (United States claimants).
1

inexpensive.” SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A.,
382 F.3d 1097, 1100 (11th Cir. 2004) (quoting Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508-09 (1947)). Public interests include the administrative burden
imposed upon the court, the imposition of jury duty on the citizens of a
community, and the “local interest in having localized controversies decided at
home.” Id.
“[T]he plaintiffs’ choice of forum should rarely be disturbed unless the
balance is strongly in favor of the defendant.” Id. (internal quotation marks
omitted). A court must “require positive evidence of unusually extreme
circumstances, and should be thoroughly convinced that material injustice is
manifest before” denying a United States citizen or resident access to the
courts of this country. La Seguridad v. Transytur Line, 707 F.2d 1304, 1308
n.7 (11th Cir. 1983). “[A] foreign plaintiff’s choice deserves less deference.”
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981).

3. Analysis

A. Availability and Adequacy of Nigerian Jurisdiction
Nigeria is an available and adequate alternative forum. Sellers begins
her forum non conveniens argument by agreeing to submit to jurisdiction in
Nigeria, agreeing to allow her attorneys to accept service of process from a
Nigerian court, and agreeing to waive any applicable statutes of limitations
defenses. (Mot. Dismiss 2, ECF No. 24.) Sellers has also agreed to not contest
liability if the case is dismissed here and brought in Nigeria, leaving only the
damages determination for each Plaintiff. (Reply 3, ECF No. 89.)
It is undisputed that Nigeria is an available forum. Sellers’s concessions
and stipulations (regarding accepting service, etc.) mean that Nigeria is an
available forum. See Leon, 251 F.3d at 1311. The Plaintiffs’ own expert
concedes this point. (See Oguntade Decl. ¶ 1.16 at p.12, ECF No. 76-11
(explaining the course this case would take if it “were to be tried in Nigeria”).)
Nigeria is also an adequate forum. Professor Fagbohun has provided a
detailed overview of the Nigerian judicial system, specifically the laws and the
court procedures relating to a civil lawsuit brought to recover for wrongfuldeath and personal-injury claims. 2 (Fagbohun Decl. ¶¶ 19-41, ECF No. 24-1
(“Based on the [enumerated] laws of the Federal Republic of Nigeira, it is my
opinion that the Federal High Court is in a position to grant wide legal and
equitable remedies for wrongful death in ways that are substantially similar to

The Defendants expert witness is Professor Olanrewaju Adigun Fagbohun.
He is thoroughly qualified and is both an academic and legal practitioner in
Nigeria. (Fagbohun Decl. ¶¶ 1-4, ECF No. 24-1.)
2

the treatment the United States District Court, Southern District of Florida will
grant to the Plaintiffs in this instant case.”).)
The Plaintiffs argue that Nigeria is inadequate. First, the Plaintiffs assert
that Nigeria is unsafe, citing reports from the United States Department of
State. But similar travel warnings from the State Department were in effect at
the time of the accident and every decedent in this case either lived in Nigeria,
or voluntarily traveled to Nigeria and nearly all were actively traveling within
the Country when this accident occurred. In any event, these arguments are
unpersuasive because none of the safety concerns specifically relate to this
case or the individuals involved in this litigation. See BFI Grp. Divino Corp. v.
JSC Russian Aluminum, 247 F.R.D. 427, 432 (S.D.N.Y. 2007) aff'd, 298 F.
App’x 87 (2d Cir. 2008) (explaining that the plaintiff failed to offer evidence of
violence in Nigeria “directed towards this litigation or individuals connected
with this case”) (internal quotation marks omitted). This argument is further
belied by that fact that some of the decedents’ estates have already brought
claims in Nigeria, including some who were formerly Plaintiffs in this case.
Second, the Plaintiffs argue that Nigeria is not an adequate alternative
forum because the Nigerian Courts are corrupt. Specifically, they cite reports
from the Department of State that “[o]fficial corruption and lack of will to
implement court decisions, [as well as pressure from the legislature and
business interests], interfered with due process.” (Resp. 17, ECF No. 79
(quoting Human Rights Report (Nigeria), Dep’t of State 2011 (pp.22-23), ECF
No. 76-8).)
Citing another Report, they argue there is a “widespread
perception” that Nigerian judges are “easily bribed.” (Resp. 17, ECF No. 79
(quoting Human Rights Report (Nigeria), Dep’t of State 2012 (p.35), ECF No.
76-9).) The fact that the Plaintiffs have retained, as their expert, a retired
justice of the Nigerian Supreme Court undermines this argument. Regardless,
these are exactly the types of “generalized, anecdotal complaints of corruption”
that are insufficient to declare that a country cannot serve as an adequate
forum.” See Stroitelstvo Bulg. Ltd. v. Bulgarian-Am. Enter. Fund, 589 F.3d 417,
421 (7th Cir. 2009); accord Warter v. Boston Sec., S.A., 380 F. Supp. 2d 1299,
1311 (S.D. Fla. 2004) (“Only evidence of actual corruption in a particular case
will warrant a finding that an alternate forum is inadequate.”).
Finally, the Plaintiffs argue that Nigeria is inadequate because of
excessive delays experienced in the civil system. Sellers’s expert, Professor
Fagbohun, has explained that recent reforms to the Nigerian judicial system
“have without doubt yielded positive dividends and reduced the delays
associated with the Courts prior to the reforms.” (Fagbohun Resp. Aff. ¶¶ 4,
28-31, ECF No. 89-2.) Professor Fagbohun also noted that most of the
exemplar cases relied upon by the Plaintiffs’ expert (to show excessive delay in

Nigerian courts) involved complicated land disputes, or a determination as to
the chieftaincy of a particular village under the local customary law. (Id. ¶¶ 3338.) Professor Fagbohun goes on to catalog a random sampling of civil cases
making their way through the Nigerian legal system relatively quickly. (Id. ¶¶
39.) Notably, nowhere in the Plaintiffs’ expert’s affidavit does he state that he
has never seen a civil litigation work its way through the Nigerian legal system
within a reasonable time. (See generally Oguntade Decl., ECF No. 76-11.)
This Court finds that Nigeria is an available and adequate alternative
forum to litigate the claims raised in this litigation. The Court now turns to the
private and public factors.
B. Private Interests
Private factors that must be considered in the forum non conveniens
analysis include “the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of the premises, if view
would be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.” SME Racks, Inc., 382 F.3d at
1100 (quoting Gulf Oil Corp., 330 U.S. at 508-09 (1947)). Domestic plaintiffs
(i.e., United States citizens, residents, or corporations) are afforded “‘a strong
presumption’ that their forum choice is sufficiently convenient.” Leon, 251
F.3d at 1311 (quoting Piper Aircraft Co., 454 U.S. at 256. Courts apply a
“weaker presumption” of convenience when evaluating foreign plaintiffs’ cases.
Id.
Most of the liability evidence in this case is in Nigeria. For example, the
wreckage of the airplane, the aircraft’s maintenance records, Dana Airline
employees responsible for maintaining the aircraft, air traffic controllers who
monitored the flight leading up to the accident, and Nigerian officials
investigating the accident are all located in Nigeria. (Mot. Dismiss 19-20, ECF
No. 24.) Significantly, it appears that the cockpit voice recording and the
transcripts of that recording may only be available through the Nigerian
Aviation Investigation Bureau or by order of a Nigerian court. (Reply 16, ECF
No. 89.) The Plaintiffs respond that “[p]roof of the pilot’s liability here is, to put
it bluntly, likely to be a no-brainer.” (Resp. 34, ECF No. 79.) The Plaintiffs
suggest that they can rely primarily on expert witnesses to prove liability. (Id.
at 35.) The countervailing analysis—whether liability evidence would be
available in Nigeria—is unnecessary because Sellers has agreed to concede
liability for cases refiled in Nigeria. (Reply 17, ECF No. 89.)
The damages evidence will largely be where each decedent lived prior to
the plane crash. Sellers argues that “virtually all of the damages evidence is
located in Nigeria,” including witnesses and documents relevant to the

Plaintiffs’ damages claims. (Mot. Dismiss 18.) The Plaintiffs respond, arguing
that damages evidence for the claims where the personal representative is a
citizen or resident of the United States will be primarily, or completely, located
in the United States. (Resp. 39, ECF No. 79.) The Plaintiffs also argue that a
“substantial number of the survivors who claim damages as a result of the
decedents’ deaths are U.S. citizens or residents as well.” (Id.) Regardless, the
determining factor for where damages evidence is likely to be available is where
the decedent resided prior to the accident, not where any survivors claiming
damages live.
The Plaintiffs’ argument on this point is a silent, but
appropriate, concession: damages evidence for the Nigerian Plaintiffs, both
testimonial and documentary, will largely be found only in Nigeria. (Cf. Resp.
39, ECF No. 79.) The Plaintiffs’ argument that there will be no need to conduct
damages discovery for every claim is not credible.
In summary, evidence of damages for the cases where the decedent
resided in Nigeria will be substantially more accessible in Nigeria because the
damages evidence will come from testimony from the decedent’s family
members, friends, neighbors, and coworkers, as well as from the decedent’s
employment records, school records, and tax records. See 11 Am. Jur. Trials
1, §§ 12-16 (1966). If these Nigerian Plaintiffs proceed in this Court, the
Defendants will be unfairly prejudiced because this Court cannot compel nonparty witnesses in Nigeria to produce documents or to provide testimony. (See
Mot. Dismiss 21, ECF No. 24.) This unfairness is magnified because the
Plaintiffs will be able to use documents and testimony provided by cooperative
witnesses in Nigeria, but Sellers will not be able to compel evidence from
uncooperative witnesses. Cf. Gulf Oil Corp., 330 U.S. at 511 (“Certainly to fix
the place of trial at a point where litigants cannot compel personal attendance
and may be forced to try their cases on deposition, is to create a condition not
satisfactory to court, jury or most litigants.”). This group of uncooperative
witnesses may even include witnesses who are willing to provide their
testimony, but because of the commitments and responsibilities of everyday
life, simply cannot travel 5,627 miles to a foreign country to provide testimony
in this case. On the other hand, evidence of damages for the cases where the
decedent was a United States citizen or resident at the time of his or her death
will be more accessible in the United States because, again, this evidence will
come from testimony from the decedent’s family members, friends, neighbors,
and coworkers, as well as from the decedent’s employment records, school
records, and tax records. See 11 Am. Jur. Trials 1, §§ 12-16 (1966).
C. Public Interests
Public interest factors that should be considered in a forum non
conveniens analysis include: “court congestion and jury duty generated by

controversies having no relation to the forum; the desirability of having
localized controversies decided at home; and the difficulties attendant resolving
conflict-of-laws problems and applying foreign law.” La Seguridad v. Transytur
Line, 707 F.2d 1304, 1307 (11th Cir. 1983). Additionally, “[t]here is a strong
federal interest in making sure that plaintiffs who are United States citizens
generally get to choose an American forum for bringing suit, rather than having
their case relegated to a foreign jurisdiction.” Esfeld v. Costa Crociere, S.P.A.,
289 F.3d 1300, 1311 (11th Cir. 2002).
This is a complex, mass-tort case that will contribute significantly to this
Court’s already crowded docket. And even if liability can be determined
through one trial, there will need to be multiple trials on damages. (See Pls.’
Resp. 33, ECF No. 79.) The burden on the jury-serving public of South Florida
will be significant. This Court will be tasked with having to untangle difficult
conflict-of-law issues, and will be faced with the prospect of having to apply
Nigerian customary law (which is the “organic or living law of indigenous people
of Nigeria regulating their lives and transactions”). 3 Finally, Nigeria clearly has
a more compelling interest than the United States in resolving these lawsuits,
since this accident is among one of the worst aviation disasters in the
Country’s recent history.
All of these factors weigh heavily in favor of Nigeria being a more
appropriate and convenient forum for this case. But the Court must also weigh
the “strong federal interest in making sure that plaintiffs who are United States
citizens generally get to choose an American forum for bringing suit, rather
than having their case relegated to a foreign jurisdiction.” Esfeld, 289 F.3d at
1311. Considering all relevant factors, this Court finds that Nigeria is the more
appropriate and convenient forum for this case to proceed with respect to the
foreign Plaintiffs; and that the United States is the more appropriate and
convenient forum for this case to proceed with respect to the United States
Plaintiffs.
D. Unclean Hands Doctrine
“He who comes into equity must come with clean hands.” Keystone
Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 241 (1933). A court invokes
this Unclean Hands Doctrine where a party’s egregious conduct “shock[s] the
moral sensibilities of the judge.” Art Metal Works v. Abraham & Straus, 70 F.2d
641, 646 (2d Cir. 1934) (Hand, J., dissenting).
Here, the Plaintiffs ask the Court to construe the Defendants’ conduct as
shocking and inequitable. The conduct offered up for such a harsh judgment
is the Defendant’s counsel’s decision to settle an insurance claim filed by the
3

(Fagbohun Resp. Aff. ¶ 36, ECF No. 89-2.)

estate of the deceased pilot, so that the Defendant could raise a forum non
conveniens objection to continuing the case in this Court. Neither of these
events is out of the ordinary, and certainly neither is shocking. First, amicable
settlements are highly encouraged. See Pearson v. Ecological Sci. Corp., 522
F.2d 171, 176 (5th Cir. 1975). Construing the decision to settle the pilot’s
estate’s claim as a nefarious act would discourage such settlements in the
future. Second, a forum non conveniens objection in an airplane-crash case is
nothing out of the ordinary. See, e.g., Clerides v. Boeing Co., 534 F.3d 623 (7th
Cir. 2008); Esheva v. Siberia Airlines, 499 F. Supp. 2d 493 (S.D.N.Y. 2007).
It is not shocking to the Court that the Defendant would prefer to defend
this action in Nigeria, just as it is not shocking that the Plaintiffs would prefer
to prosecute this action in the United States. Neither party has unclean hands
because of their preference of forum. The Plaintiff’s citation to cases where
plaintiffs have preemptively poisoned the foreign forum is not compelling.
(Resp. 12-13, ECF No. 79.) Unlike in those cases, the Defendant’s counsel has
done nothing to make either forum inhospitable to either party. In litigation,
as in life, strategy is a part of the process. Employing a particular strategy to
gain a perceived advantage is not intrinsically inequitable.

4. Conclusion
Sellers has presented competent substantial evidence that Nigeria is an
available and adequate alternative forum. Sellers’s agreement to concede
liability for claims refiled in Nigeria makes it, in some respects, a more
attractive forum than the United States. As further evidence of its availability
and adequacy, several claimants (even some who were previously plaintiffs in
this lawsuit) have brought their claims in Nigeria. (Reply 21, ECF No. 89.)
Weighing both the public and private interest factors the Court
concludes that Nigeria is the more appropriate forum for the cases of Nigerian
and foreign decedents, but that the United States is the more appropriate
forum for the cases of the United States decedents. Considering the factors
with respect to the non-Nigerian and non-United States decedents, the Court
finds that it would be decidedly inconvenient for these cases to proceed in the
United States.
The claimants whose cases are more conveniently litigated in Nigeria will
be able to pursue their claims in Nigeria without undue inconvenience or
prejudice. Sellers has agreed to the following conditions upon dismissal: (1) to
consent to jurisdiction by a Nigerian civil court and to accept service of process
through counsel, (2) to toll any applicable statute of limitations in Nigeria, (3) to
make all relevant documents in Defendant’s possession, custody, or control

available to a Nigerian court, and (4) to not contest liability in Nigeria for the
cases refiled there. (Mot. Dismiss 4; Reply 3.)
It is ordered that the Defendant’s Motion to Dismiss (ECF No. 24) is
granted in part and denied in part. The Court grants the Motion with respect
to cases where the decedent resided in Nigeria or elsewhere outside of the
United States, specifically the cases identified in paragraphs 9-31 and 34-41 of
the Third Amended Complaint (ECF No. 12) and all of the Plaintiffs in the 1360443 Case. These cases are dismissed based on the forum non conveniens
doctrine. The cases identified in paragraphs 1-8 and 32-33 of the Third
Amended Complaint are not dismissed and will remain pending in this Court.
Relatedly, the Plaintiff’s Motion to Strike the Defendant’s Reply Affidavits
(ECF No. 92) is denied for the reasons articulated in the Defendant’s Response
Brief (ECF No. 93).
Done and ordered, in chambers at Miami, Florida, on March 31, 2014.
_______________________________
Robert N. Scola, Jr.
United States District Judge