Onita-Olojo et al v. Sellers

Filing 258

ORDER denying 207 Motion to Dismiss the claims brought by Pamela A. Norris, as personal representative of the Estate of Kim Edgar Norris. Signed by Judge Robert N. Scola, Jr. on 9/18/2015. (rss)

United States District Court
for the
Southern District of Florida
Christina Onita-Olojo, as Personal
Representative of the Estate of
Jennifer Onita, and others, Plaintiffs
v.
Stacey Veolette Sellers, as
Personal Representative of the Estate
of Peter Simon Waxtan, Defendant

)
)
) Civil Action No. 12-62064-Scola
)
(Consolidated Case Nos. 13-60443, 14)
60627, 14-61237, & 14-61267)
)
)

Order Denying Defendant’s Motion To Dismiss
In June 2012, Dana Airlines Flight 992 crashed while attempting to land
in Lagos, Nigeria. One of those killed in the crash was Kim Edgar Norris. His
wife, Pamela A. Norris, brought this wrongful-death lawsuit as the personal
representative of his Estate. The Defendant, Sellers, argues that Norris’s case
should proceed in the courts of Nigeria, and that this Court should dismiss
Norris’s claims under the doctrine of forum non conveniens. For the reasons
explained in this Order, the Court denies Sellers’s motion to dismiss.
1. 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
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).
2. Analysis
A. Availability and Adequacy of Nigerian Jurisdiction
This Court has previously determined that Nigeria is an available and
adequate alternative forum to litigate the claims raised in this litigation. OnitaOlojo v. Sellers, No. 12-62064, 2014 WL 1319304, at *4–5 (S.D. Fla. Mar. 31,
2014). That determination remains accurate. The Court now turns to the
private and public factors.
B. Private Interests
Private factors that a court must consider 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.
(1) Liability Evidence
In its previous forum non conveniens order, the Court noted that
although most of the liability evidence in this case is in Nigeria, the Plaintiffs
argue that they can prove the pilot’s liability by presenting expert witnesses.

Onita-Olojo, 2014 WL 1319304, at *4. The Court relied heavily on the Sellers’s
stipulation that she would not contest liability if the Plaintiffs brought their
cases in Nigeria. Despite this promise, Sellers did contest liability in several
cases filed in Nigeria. It was only after the Nigerian court rejected Sellers’s
argument that she dropped this defense. While it appears that Sellers is no
longer contesting liability in the Nigerian court, these developments move the
scale in Norris’s favor to keep her case in this Court.
(2) Damages Evidence
In its previous order, the Court determined that the damages evidence
“for the cases where the decedent resided in Nigeria will be substantially more
accessible in Nigeria.” Id. at *5. And that “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.” Id. These conclusions
set the stage for the Court’s ultimate holding in that prior order—to dismiss the
foreign-decedent cases and to retain the U.S.-decedent cases. Id. at *7.
Norris’s case is more like the U.S.-decedent cases than the foreigndecedent cases, despite the fact that Kim Edgar Norris was a resident of
Ontario, Canada prior to his death. Sellers has not made any fact-specific
arguments about Norris’s situation. (See Def.’s Mot. Dismiss, ECF No. 207)
(merely adopting its previously filed motion to dismiss).) Norris, on the other
hand, presents compelling arguments that the damages evidence in her case
will largely be found in the United States. (See Norris Decl. ¶¶ 4–7, ECF No.
243-2.) Mr. Norris, who lived just 60 miles from the U.S.-Canadian border,
was a contractor for the International Monetary Fund—an entity headquartered
in Washington, D.C. (Id. ¶ 4.) His supervisors are in Washington, D.C., he was
paid from Washington, D.C., and he had a bank account in Washington, D.C.
(Id. ¶ 5.) To the extent that some evidence is located in Canada, the Estate will
have access to that evidence through letters rotatory, (Resp. 9, ECF No. 243);
this was not the case with Nigerian-decedent cases, (Mot. Dismiss 21, ECF No.
24).
Sellers argues that the Court previously dismissed another Canadiandecedent’s case based upon the forum non conveniens argument. (Reply ¶ 1,
ECF No. 253 (referring to the Estate of Olukayode Adebayo Okikiolu, Case No.
14-60627).) But in that case, the decedent’s only connection with the United
States was a family vacation to Florida. (See Okikiolu Decl. ¶¶ 1–14, ECF No.
8-1 in Case No. 14-60627.) Norris’s case is significantly distinguishable.

C. Public Interests
Previously, this Court determined that the public-interest factors of the
forum non conveniens analysis in this case was a close call. Onita-Olojo, 2014
WL 1319304, at *6. It remains so.
3. Conclusion
The forum non conveniens analysis in this case is a very close call. The
first time the Court undertook the analysis in this case, it distinguished
between foreign-decedent cases and U.S.-decedent cases, largely because of the
location of damages evidence, but also because the forum non conveniens case
law draws a distinction between cases filed by United States citizens or
residents and cases filed by foreign plaintiffs. Even the previous Canadian
decedent lacked any real connection with the United States.
Two things are different now. First, Norris had significant ties to the
United States, and therefore the damages evidence for this case is largely
available here. Second, Sellers’s stipulation that she will not contest liability if
Norris refiles her case in Nigeria is not as compelling as it once was since she
has already gone back on that promise before. These two differences are
enough to tip the balance in favor of keeping Norris’s case in this Court.
For the reasons explained in this Order, the Court denies Sellers’s
motion to dismiss Norris’s claims (ECF No. 207).
Done and ordered at Miami, Florida on September 18, 2015.
_______________________________
Robert N. Scola, Jr.
United States District Judge