Loring et al v. Southern Air Charter Company Ltd. et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 6/26/2018. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AILA TUULIKKI LORING, et al.,
Civil Action No. PX 16-3844
SOUTHERN AIR CHARTER
COMPANY, LTD., et al.
Pending before the Court is Defendant Alpha Gibbs’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(7) and the common law doctrine of forum non
conveniens. See ECF No. 93. Gibbs alternatively requests transfer of this action to the Supreme
Court of the Bahamas. ECF No. 93. Also pending is Plaintiffs’ motion to strike the Defendants’
surreply in support of the forum non conveniens motion. For the following reasons, the motion
to strike, ECF No. 114, is GRANTED and the motion to dismiss, ECF No. 93, is DENIED.
On December 2, 2014, Seldon Loring, a citizen of Massachusetts, boarded a Piper PA 31-
350 aircraft in Governor’s Harbour Airport, Eleuthera, Bahamas, with a final destination of
Lynden Pindling International Airport, New Providence Island, Nassau, Bahamas. ECF No. 109
at ¶ 39. Loring had purchased his ticket from Southern Air Company, Ltd. (“Southern Air
The following facts are taken from Plaintiffs’ Complaint, ECF No. 109, as well as evidence or testimony submitted
to the Court during the life of this case. To the extent that the Court describes and considers matters outside the
pending motions’ pleadings, the Court draws all reasonable inferences and factual conflicts in favor of the nonmoving party, Plaintiffs. Accord Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981); Am. Gen. Life & Accident
Ins. Co. v. Wood, 429 F.3d 83, 92 (4th Cir. 2005); see also Nygard v. Dipaolo, No. 17-60027-UU, 2017 WL
4303825, at *1 (S.D. Fla. May 23, 2017).
Bahamas”), and expected to make the short trip to New Providence Island on a Southern Air
Bahamas aircraft. However, the Southern Air Bahamas flight was overbooked, so Southern Air
rebooked Loring and his wife, Aila Tulikki Loring, also a Massachusetts citizen, on a Fergs Air
Limited (“Fergs Air”) flight to the same destination. ECF No. 109 at ¶¶ 30–31. The Lorings did
not pay Fergs Air for their tickets, and although the plane was registered to Fergs Air, the flight
was operated by Southern Air Bahamas. ECF No. 109 at ¶¶ 30–31. All passengers on the Fergs
Air flight purchased their tickets from Southern Air Bahamas, and seven of the eleven
passengers were American citizens. ECF No. 98-5; see also ECF No. 100-2.
As the aircraft approached New Providence Island, several technical problems forced a
crash landing in the ocean. ECF No. 109 at 1. Loring died shortly thereafter from injuries
sustained during the crash. ECF No. 109 at 1. All other passengers were taken to a local
hospital and treated for their injuries. See ECF Nos. 98-5. Southern Air Bahamas employees
and the company’s lawyer visited the passengers in the hospital, and a Southern Air Bahamas
supervisor issued a written report on the incident. See ECF No. 100-2.
On or about November 30, 2016, Aila Tuulikki Loring, as Personal Representative of the
Estate of Seldon Loring and Leila and Jaana Loring Melia, on behalf of their deceased father,
Seldon Loring (collectively “Plaintiffs”), filed a wrongful death action under the Death on the
High Seas Act (“DOHSA”), 46 U.S.C. §§ 762 et cet., against Southern Air Bahamas, Southern
Air Charter Company, Ltd. (“Southern Air Maryland”), and Alpha Gibbs (“Gibbs”), the
president of Southern Air Maryland and, through his accounting firm, the chief financial officer
of Southern Air Bahamas. See ECF Nos. 71, 72, 73, 92-2 at 10:2–15:17, 92-4 at ¶ 1, 92-9 at ¶
8. Southern Air Bahamas is a corporation organized under the laws of the Bahamas, whereas
Southern Air Maryland is a Maryland corporation, incorporated on May 9, 2013, with its
principal place of business in Prince George’s County, Maryland. Gibbs is a citizen of the
United States residing in Prince George’s County, Maryland. See, e.g. ECF No. 109 at ¶¶ 4–6.
All Defendants were served on January 10, 2017, and Southern Air Maryland timely
answered the Complaint. ECF Nos. 7, 8, 9, 13. Defendant Gibbs then moved to dismiss the
Complaint “for failure to state a claim upon which he can be held personally liable,” and
Southern Air Bahamas filed a motion to dismiss for lack of personal jurisdiction. ECF Nos. 11
& 12. On February 17, 2017, Plaintiffs moved for leave to conduct jurisdictional discovery
under Federal Rule of Civil Procedure 56(d), arguing that this Court had general jurisdiction over
all Defendants because Southern Air Bahamas and Southern Air Bahamas were alter-egos of
each other, and that Southern Air Bahamas “continuously and systematically” conducted its
business in Maryland through the activities and conduct of Defendant Gibbs. See ECF No. 25 at
¶¶ 13–14. The Court granted Plaintiffs’ motion on March 29. The Court also set new deadlines
for the Defendants to renew their motion to dismiss, if it wished, at the close of jurisdictional
Thereafter, this Court granted multiple extensions of the deadlines for completion of
jurisdictional discovery due to the Defendants’ dereliction in the discovery process. Plaintiffs
filed a letter motion to compel on November 17, explaining that discovery had stalled because
Defendants had not provided financial documents for Southern Air Bahamas or Southern Air
Maryland, and as such, Plaintiffs could not take the necessary corporate deposition of Southern
Air Bahamas. See ECF No. 47. Plaintiffs also informed the Court that defense counsel was
unresponsive to requests for subpoenaed documents. ECF No. 47; see also ECF Nos. 47-1, 47-2,
47-3. The Court held a recorded status conference on November 29, 2017 at which it found that
Defendants were delinquent in producing discovery, and set a discovery of December 1, 2017,
where Defendants were to fulfill its obligations or risk sanctions. See ECF No. 51.
Defendants again failed to produce any documents, and on December 4, Plaintiffs moved
formally to compel discovery and for sanctions. See ECF No. 52. Defendants opposed, arguing
that Southern Air Maryland and Gibbs had attempted to complete discovery “to best of his
ability” and had performed “an exhaustive search for responsive documents” and that
“[i]nformation that does not exist cannot be compelled.” ECF Nos. 53 & 57.
On January 12, 2018, Plaintiffs informed the Court, via letter pleading, Plaintiffs had
received, by way of third-party subpoena, documents reflecting the sale of two aircraft to
Southern Air Maryland, which it “leased” to Southern Air Bahamas for its use and operation.
ECF No. 58. These documents, which were not provided during discovery, supported Plaintiffs’
claim that Southern Air Maryland was the functional alter ego of Southern Air Bahamas. ECF
No. 58; see also ECF No. 58-7. Plaintiff also submitted depositions of Alpha Gibbs in his
personal capacity and as the corporate designee of Southern Air Maryland under Federal Rule of
Civil Procedure 30(b)(6). See ECF Nos. 60 & 61. The depositions were rife with Gibbs’ evasive
or non-responsive answers, reflecting an overall intent to thwart rather than facilitate
jurisdictional discovery. The Court, therefore, scheduled a motions hearing on the pending
motion to compel for January 25, 2018 at which Gibbs’ personal appearance was ordered. See
ECF No. 59.
Gibbs failed to appear at the January 25th motions hearing, prompting this Court to hold
him in contempt. See ECF No. 64. As grounds in support, the Court noted that Defendants had
not participated in discovery in good-faith and willfully ignored the deadlines established by the
Court’s previous Orders. ECF Nos. 64 & 65. The Court provided Gibbs an opportunity to purge
the finding of contempt by appearing on February 1, 2018. ECF No. 65.
At the January 25 hearing, argument was also heard on the pending motion to compel
jurisdictional discovery. ECF No. 64. The Court noted that in light of Defendants’ systematic
dereliction with respect to conducting jurisdictional discovery, and because Southern Air
Bahamas had failed to renew its motion to dismiss for lack of personal jurisdiction by the Courtordered deadline, any affirmative defenses as to jurisdiction were waived. The Court determined
that it retained personal jurisdiction over all three Defendants.2
Plaintiffs’ motion to compel discovery was also granted. ECF No. 64. As a gesture of
good faith and to limit future discovery costs, Defendants volunteered to make all potential
witnesses available for deposition near Plaintiffs’ home in Boston, Massachusetts. At the same
hearing where the Court discussed the propriety of initial disclosures under Federal Rule of Civil
Procedure 26, defense counsel represented to the Court that Defendants did not have insurance to
cover Plaintiffs’ claims. ECF No. 64.
The Court also put in place a series of specific conditions on how merits discovery would
proceed so as to ensure Defendants’ future compliance and facilitate the orderly progression of
this case. Specifically, the Court required Gibbs to produce an under oath affirmation that Gibbs
had performed a diligent search and provided in a timely manner all responsive documents
within his possession, custody, or control. Further, the Court ordered that any future deposition
of Gibbs would take place in the United States District Court Greenbelt Division courthouse to
ensure Court’s availability in the event Gibbs once again evaded relevant questions. See ECF
Defense counsel agreed on the record that Southern Air Bahamas’ had waived all jurisdictional challenges.
The following week, the Court held Gibbs’ contempt hearing, and found that by
personally appearing and agreeing to participate in discovery meaningfully, Gibbs had purged
the contempt. The Court explained to Gibbs his discovery obligations, and again reminded all
Defendants that the Court was disinclined to entertain future attempts to delay merits discovery.
See generally ECF Nos. 64 & 78. Defendants answered the Complaint on February 1, 2018. See
ECF Nos. 71, 72, 73, 80, 83. The Court thereafter issued a scheduling order including mutually
agreed upon discovery deadlines. ECF Nos. 80 & 94.
On April 25, 2018, Plaintiffs again informed the Court that Defendants were derelict in
their discovery obligations. Defendants had not responded to document requests or submitted
answers to interrogatories. See ECF No. 89. Plaintiffs also moved for judgment as to liability
under the fraud on the Court doctrine, arguing that Defendants have falsely denied factual
allegations, provided knowingly false testimony during jurisdiction discovery, and willfully
withheld responsive documents. ECF Nos. 91 & 92. This motion remains pending.
Rather than ensure that Defendants made good on their discovery obligations,
Defendants3 instead moved to dismiss or “transfer venue” for forum non conveniens. In this
motion, Gibbs argued that the Court must dismiss the case under Federal Rule of Civil Procedure
12(b)(7) for failure to join an indispensable party or, in the alternative, the doctrine of forum non
conveniens “in favor of transferring venue to [t]he Supreme Court of the Bahamas, and award
Defendants costs and attorney’s fees.” ECF No. 93. Despite the pendency of this case for
Notably, the motion to dismiss is titled “Southern Air Charter Company, Ltd. et al’s motion to dismiss and request
for transfer of venue.” ECF No. 93. However, the motion itself indicates that the motion is brought by “Defendant
Alpha Gibbs,” and the reply and surreply brief in support were also filed by Gibbs. See ECF Nos. 93, 104, 113. The
closing paragraph of the initial motion, however, again indicates that it is brought by Defendant “Southern Air
Charter, Ltd., et al.” Further adding to the confusion, the Court’s docket indicates the initial motion and reply to
Plaintiffs’ opposition brief as brought by Defendant Alpha Gibbs. See ECF Nos. 93, 104, 113. Because the majority
of the pleadings indicate the dismissal motion was brought on Gibbs’ behalf, the Court will hereafter refer to it as
eighteen months, Gibbs raised for the first time that venue was more proper in the Bahamas. He
provided no explanation for the significant delay in so moving.
During a recorded status conference on May 8, the Court granted Plaintiffs’ motion to
compel discovery, ECF No. 89, and ordered Defendants to answer interrogatories and produce
all responsive documents — and specifically corporate Defendants’ insurance policies — no
later than close of business on May 15, 2018, or risk all available sanctions, to include default
judgment. ECF Nos. 95 & 96. Gibbs also was directed to personally appear before the Court to
show cause as to the delay. ECF Nos. 95 & 96. The Court also granted Plaintiffs’ motion to file
an amended Complaint, adding a fifth count against Defendants. See ECF No. 108.
On May 24, Plaintiffs filed yet another motion to compel discovery, informing the Court
that despite the Court’s May 8 Order setting a final production of May 15, Defendants had only
provided ten additional pages of responsive documents, consisting of: a single invoice from
Fergs Air; the decedent’s travel itinerary; the passenger manifest for the subject flight, flight 302;
a three-page incident report about the accident, prepared by a Southern Air employee; and
several pages of correspondence from Southern Air employees with an unknown insurance entity
regarding property lost on flight 302. See ECF No. 100. Stunningly, Defendants had yet to
confirm whether Defendants maintained insurance. See ECF No. 100. Further, the vast majority
of Defendants’ responses were inadequate and objections were overbroad. See ECF No. 100-2.
On May 29, 2018, Defendants opposed Plaintiffs’ motion to compel, and produced an
additional forty pages in discovery, including two purported insurance policies. ECF Nos. 105,
105-1, 105-2. Defendants argued that this document production, together with the ten pages
submitted earlier in the month, satisfied all discovery obligations and mooted the motion to
compel. ECF No. 105 at ¶ 1. The Court has now reviewed the documents and finds that they are
disorganized and not produced consistent with Rule 34 of the Federal Rules of Civil Procedure,
which requires that the responsive party either indicate which documents are responsive to each
specific numbered request or affirm that the documents have been produced as they are kept in
the usual course of business. See Fed. R. Civ. P. 34(b)(2)(E). Nor did Defendants’ submit
Gibbs’ sworn affirmation that the documents were produced after diligent search, as previously
ordered. See ECF No. 68.
On May 30, 2018, the Court held a hearing regarding Defendants’ continued failure to
comply with discovery and the Court’s orders. At the hearing, Defendants’ counsel represented
that Defendants’ failure to timely comply with the Order was because Gibbs produced
responsive documents to defense counsel via email on May 12, but that this transmission
inexplicably went into the “spam” folder of counsel’s email account. The email then went
unnoticed for over a week, at which point the documents were provided to Plaintiffs. ECF No.
110. Defendants’ counsel also represented at the May 30 hearing that he had not communicated
with anyone at Southern Air Bahamas at all during this litigation, and thus had not coordinated
whatsoever with Southern Air Bahamas employees, aside from Gibbs, regarding Southern Air
Bahamas’ discovery obligations. See ECF No. 110.
The Court then questioned Gibbs directly as to the persistent discovery deficiencies. The
Court also permitted Plaintiff to ask questions designed to determine, once and for all, whether
available insurance existed. Gibbs testified that the insurance policies were valid, but that he had
not placed the insurance carrier on notice of this litigation, nor did he have personal knowledge
of any other officer of Southern Air Bahamas notifying their insurance provider of this case.
ECF No. 110.
The Court then turned to the pending dismissal motion. Defendants confirmed that this
case in the Bahamas is subject to a three-year statute of limitations. Defense counsel also
admitted that limitations had expired, thus directly contradicting his written pleadings. See ECF
No. 104 at 3–5. Defendants further conceded that the eighteen month discovery saga — which
was largely of Defendants’ own making — effectively ran the limitations clock, barring the
filing of suit in the Bahamas. Several days after the hearing, on June 4, and without seeking the
requisite leave of Court, Gibbs filed a surreply in support of the forum non conveniens motion.
See Loc. R. 105.2(a); ECF No. 113. Plaintiffs then filed the pending motion to strike the
surreply. ECF No. 114.
a. Failure to join an indispensable party
Federal Rule of Civil Procedure 12(b)(7) requires dismissal for failure to join a party
deemed indispensable under Rule 19. See Fed. R. Civ. P. 12(b)(7); Fed. R. Civ. P. 19. Rule 19,
as amended in 2007, requires a two-part inquiry for determining whether a court must dismiss an
action for failure to join an indispensable party. First, a court must determine whether the
person is “required” under Rule 19(a). Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83,
92 (4th Cir. 2005). Importantly, it “has long been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single lawsuit.” See Temple v. Synthes Corp., Ltd.,
498 U.S. 5, 7 (1990) (citing cases); see also R. Civ. P. 19(a) advisory committee’s note to 1966
amendment (stating “a tortfeasor with the usual ‘joint-and-several’ liability is merely a
permissive party to an action against another with like liability”). If the absent party is required,
the court must order its joinder and the action may continue. However, if joinder is required but
is not feasible, the court must then determine under Rule 19(b) whether the party is
“indispensable” such that the action must be dismissed. Wood, 429 F.3d at 92. Dismissal for
non-joinder is a remedy employed with great reservation, and “only when the defect cannot be
cured and serious prejudice or inefficiency will result.” Provident Tradesmens Bank & Trust Co.
v. Patterson, 390 U.S. 102, 118 (1968). The moving party bears the burden of demonstrating
that the absent party must be joined. Wood, 429 F.3d at 92.
Here, Defendants argue that Fergs Air is a necessary party under Rule 19, but do not
marshal any evidence by which this Court can find Fergs Air to be indispensable. See ECF Nos.
93 & 104. Rather, as Plaintiffs rightly point out, the Complaint’s allegations, as well as the
evidence generated during jurisdictional discovery, demonstrate that Fergs Air is at best a joint
tortfeasor, which may, but need not, be joined. ECF No. 98 at 15–16. Given Defendants’
failure to rebut these facts, “no inquiry under Rule 19(b) is necessary, because the threshold
requirements of Rule 19(a) have not been satisfied.” See Temple, 498 U.S. at 8; Wood, 429 F.3d
at 92. Defendants’ motion to dismiss under Rule 12(b)(7) is DENIED.
b. Forum Non Conveniens
Under the common law doctrine of forum non conveniens, dismissal of an action is only
compelled where “an alternative forum has jurisdiction to hear the case, and when trial in the
chosen forum would establish oppressiveness and vexation to the defendant out of all proportion
to the plaintiff's convenience, or when the chosen forum is inappropriate because of
considerations affecting the court’s own administrative and legal problems.” Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 241 (1981) (internal quotation marks and alterations omitted) (quoting
Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).
“A defendant invoking forum non conveniens ordinarily bears a heavy burden in
opposing the plaintiff’s chosen forum.” Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping
Corp., 549 U.S. 422, 430 (2007); see also Piper Aircraft, 454 U.S. at 255–56. This deference is
particularly acute where, as here, the plaintiff is a United States citizen and a defendant is the
resident of the forum he seeks to have declared inconvenient for litigation. DiFrederico v.
Marriott Intern., Inc., 714 F.3d 796, 802–03 (4th Cir. 2013) (“A citizen plaintiff’s choice is
preemptively convenient, and should be overridden only when the defendant ‘establish[es] such
oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s
convenience, which may be shown to be slight or nonexistent.”) (quoting Koster, 330 U.S. at
524); Galustian v. Peter, 591 F.3d 724, 732 (4th Cir. 2010).
Courts analyze forum non conveniens dismissal using a two-step approach. First, the
court must consider whether an alternative forum is adequate and available. See Piper, 454 U.S.
at 254 n. 22; see also In re Compania Naviera Joanna S.A., 531 F. Supp. 2d 680, 684–85 (D.
S.C. 2007), aff’d 569 F.3d 189 (4th Cir. 2009), cert denied 558 U.S. 1112 (2010). If the
alternative forum is available and adequate, the court then considers multiple factors to
determine whether dismissal is in the interests of the private litigants as well as the public. See
Piper, 454 U.S. at 257–61. At this stage, Defendants must “establish such oppressiveness and
vexation” would result from not trying the case in the requested forum that is “out of all
proportion to plaintiff’s convenience.” DiFrederico, 714 F.3d at 802–03.
Defendants have failed to establish that the Supreme Court of the Bahamas is an available
and adequate forum for this case. See ECF Nos. 93 & 98. Gibbs contends this action can be
pursued under the Bahamian Fatal Accidents Act (“BFAA”). This statute requires suit to be filed
within three years from the date of the death caused by the fatal accident. See ECF Nos. 98 &
113. Where limitations have expired in the alternate forum, dismissal under forum non
conveniens is precluded. See Compania Naviera, 569 F.3d at 202–03 (holding that the
expiration of the statute of limitations in the alternate forum did not bar dismissal where
plaintiffs deliberately allowed the deadline for filing claims to pass); see also DiFrederico, 714
F. 3d at 801; Kontoulas, 745 F.2d at 316. Because the December 2, 2014 crash killed Loring that
day, Plaintiffs would have to have filed its BFAA claim by no later than December 2, 2017.
Simply put, limitations have long expired. See ECF Nos. 98-1, 98-2, 98-3.
Gibbs also does not put forward any evidence supporting whether a Bahamian court
could or would waive the BFAA’s statute of limitations. See ECF Nos. 93 & 104. To the
contrary, Gibbs has inexplicably claimed that the BFAA’s three-year statute of limitations does
not apply to this action, see ECF No. 104 at 3–5, only then to switch course and argue that in
Bahamian courts, “time bar claims are only valid when Defendants affirmatively assert a statute
of limitations defense” and Defendants are “entirely willing to waive their statute of limitations
defense.” ECF No. 113 at 5. Notably, Gibbs’ surreply was not accompanied by a sworn
affidavit to this effect, as is custom in forum non conveniens cases. See ECF No. 113. Plaintiffs
have now filed a motion to strike the surreply, ECF No. 114, and based on Defendants’ failure to
provide any good cause for the late filing, the Court GRANTS Plaintiffs’ motion to strike. In
short, Defendants have given this Court no proof that Plaintiffs could maintain a cause of action
in the Bahamas.
Alternatively, even if the Court were to make the leap of faith that suit is viable in the
Bahamas, the Court would still deny Defendants’ motion. This is because the “relevant public
and private interests” in this case do not “strongly favor a specific, adequate, and available
alternative forum.” Jiali Tang v. Snutra Intern. Inc, 656 F.3d 242, 246 (4th Cir. 2011); see also
DiFrederico, 714 F.3d at 802–03; Sonoco Products Co. v. Guven, No. 4:12-790-RBH, 2013 WL
4018612, at *2–*3 (D. S. Ca. Aug. 6, 2013). “[T]he locus of alleged wrongful conduct is just
one of several private and public interest factors that should be weighed to determine whether the
alternative forum is more convenient.” Jiali Tang, 656 F.3d at 252. The Court addresses the
competing interests below.
Under forum non conveniens doctrine, the private interests for consideration include
“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
premises, if view would be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.” Piper Aircraft, 454 U.S. at 241 n. 6; see Jiali
Tang, 656 F.3d at 246. Here, two of the three Defendants are citizens of Maryland, and Southern
Air Bahamas conceded in its answer that it is also “at home” in Maryland. See ECF Nos. 71, 72,
73; contra In re Compania Naviera, 531 F. Supp. 2d at 689 (noting that the “United States has
absolutely no connection to the events giving rise to this action. None of the parties is a United
States entity or citizen. Neither vessel was registered in the United States. [. . .] No United States
citizens are in fact witnesses.”).
Further, while much of the evidence pertaining to the accident may be located in the
Bahamas, many of the pertinent documents are in the Defendants’ possession or should be easily
available to them.4 This is especially the case where Defendants have conceded that all
communications regarding this case between counsel and the corporate defendants has been
facilitated by Alpha Gibbs, who resides and works in Maryland. Defendants have further
demonstrated that it can, and has, submitted in discovery documents obtained from Air Bahamas
via email. Accordingly, even if paper copies of relevant discovery are housed in the Bahamas,
the documents may be inexpensively transmitted to the United States. Accord Sonoco Products
In particular, given Gibbs’ extensive involvement in the management of both corporate Defendants, Gibbs should
have access or should not have any difficulty obtaining all records possessed by Southern Air Maryland and
Southern Air Bahamas.
Co., 2013 WL 4018612, at *3 (citing Calvao Growers of Calif. v. Belgium, 632 F.2d 963, 969
(2d Cir. 1980) (Newman, J. concurring). The parties also agree that inspection of the aircraft is
highly improbable because the damaged airplane sunk and was deemed unrecoverable. ECF No.
98 at 12–13; see also ECF No. 98-5.
Additionally, with respect to availability of witnesses in this action as compared to the
Bahamas, the Court notes that seven of the eleven passengers on flight 302 are American citizens
and so would be subject to this Court’s compulsory process. See ECF No. 98-5. Defendants
have also agreed to make Southern Air Bahamas and Southern Air Maryland witnesses available
for depositions in Massachusetts. Whatever remaining witnesses or evidence not otherwise
addressed may be compelled through the well-outlined procedure provided under Bahamian law.
See ECF No. 98-5. Plaintiffs have already hired Bahamian counsel to expedite this process, and
submitted their first request for production on June 19, 2018. See ECF Nos. 98 at 13, 98-3, 118.
Defendants also argue that their pending suit against Fergs Air in the Supreme Court of
the Bahamas concerning the December 2, 2014 airplane crash weighs in favor of dismissal so as
to avoid having to litigate two cases at once. See ECF Nos. 103 & 104. The Court is mindful of
the difficulties inherent in simultaneous litigation of multiple, complex civil lawsuits. However,
it is noteworthy that Defendants filed their action against Fergs Air well after litigation in this
matter commenced, and so this burden is largely one of Defendants’ own creation. See ECF No.
116. The ongoing action in the Supreme Court of the Bahamas against Fergs’ Air does not
outweigh Plaintiffs’ competing interests.
Nor does dismissal further the public interest. Defendants do not argue that any of the
customary public interest concerns are at play here. Piper Aircraft, 454 U.S. at 241 n. 6; see also
Jiali Tang, 656 F.3d at 249. Nor do Defendants contend that the Court will be required to apply
Bahamian law to adjudicate this dispute; and even if the Court must, it is capable of applying
laws of other fora. See ECF Nos. 93, 104, 113. Plaintiffs further note that damages in this action
will be determined by the Death on the High Seas Act (“DOHSA”), which will require the
application of United States maritime law. See generally ECF Nos. 93, 104; see also ECF No.
98 at 10 n.3; 46 U.S.C. §§ 30301-08 et seq. Moreover, the public interest in resolving
domestically a serious case involving death and injury to several United States citizens, allegedly
caused by the acts and omissions of one Maryland corporation and Maryland citizen, outweighs
any non-specific concern for “Bahamian tourism.” See ECF Nos. 93, 98, 104; contra Jiali Tang,
656 F.3d at 252–53 (affirming dismissal where the plaintiffs were all Chinese citizens and
residents, the district court was likely to encounter complex issues of Chinese law, and China
clearly had a greater interest in the dispute); Compania Naviera, 569 F.3d at 200–05 (affirming
dismissal under forum non conveniens where the record showed that a collision between two
foreign-corporation owned ships“ ha[d] absolutely no connection” to the United States). The
Court’s considerable familiarity with this case also promotes a just and efficient use of judicial
resources by continuing the action here, rather than having the parties begin anew in the
A final word on Defendants’ motion: The Court is especially reluctant to grant dismissal
in light of Defendants’ persistent and protracted dilatory conduct. It does not go unnoticed that
Defendants initially filed their motion to dismiss for lack of personal jurisdiction — only to
abandon it — after months of discovery battles that were wholly of Defendants’ making. This is
reflected in the Court granting Plaintiffs’ numerous motions to compel discovery, imposing
sanctions against Defendants, and order holding Defendant Alpha Gibbs in contempt. See ECF
Nos. 64, 65, 78. Through transparent foot dragging, Defendants were able to run down the
limitations clock on any companion suit in the Bahamas, and only then file their motion to
dismiss for forum non conveniens. See ECF No. 93. Such calculated efforts to thwart the
prosecution of this case cannot be countenanced. Accord. Compania Naviera, 569 F.3d at 202–
Accordingly, because Defendants have not sustained their burden show why dismissal is
warranted for forum non conveniens, the motion is DENIED.
For the foregoing reasons, Plaintiffs’ motion to strike Defendants’ surreply is GRANTED
and Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(7) and the
common law doctrine of forum non conveniens is DENIED. A separate Order follows.
United States District Judge
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