                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                            _______________________

                                 No. 00-11938
                           ________________________

                        D.C. Docket No. 98-07128-CV-LCN

JULIO IGNACIO LOURIDO LEON,
GINA MERCEDES VALDIVIESO SANTOS, et al.,

                                                     Plaintiffs-Appellants,
                          versus

MILLON AIR INC., a Florida corporation, MILLON
AIR CARGO, INC., a Florida corporation et al.,

                                                     Defendants-Appellees.

                            _______________________

                       Appeal from the United States District
                      Court for the Southern District of Florida
                            _______________________
                                   (May 21, 2001)

Before EDMONDSON, FAY and NEWMAN*, Circuit Judges.

NEWMAN, Circuit Judge:
_________________________

       *Honorable Jon O. Newman, U.S. Circuit Judge for the Second Circuit, sitting by
designation.
         This appeal concerns application of the doctrine of forum non conveniens in the

context of a fatal airplane crash. The appeal is from the May 17, 1999, order of the

District Court for the Southern District Florida (Lenore C. Nesbitt, District Judge)

dismissing on the ground of forum non conveniens a suit by Julio Ignacio Lourido

Leon and numerous other plaintiffs, all of whom are citizens of Ecuador. The suit was

brought against Millon Air, Inc. (“Millon Air”), an air cargo carrier and other

defendants whom the plaintiffs claim are responsible for the October 22, 1996, crash

of a cargo-carrying aircraft owned and operated by Millon Air. The plane, which had

no passengers, crashed shortly after take-off from Manta, Ecuador. In addition to

killing the three members of the crew (who are not plaintiffs) the crash killed 30

residents of Ecuador living in the neighborhood of the crash site, and injured many

others. The appeal is also from the District Court's March 29, 2000, order denying the

Plaintiffs' motions for new trial under Fed. R. Civ. P. 59 and 60. We conclude that the

District Judge did not exceed her discretion in dismissing the suit, but that the

dismissal should have been appropriately conditioned. We therefore modify the order

of dismissal, affirm the order as modified, and affirm the denial of the motion for new

trial.




                                            2
                                  Procedural History

      More than 700 people allegedly injured by the crash have filed approximately

100 lawsuits in state and federal courts in the United States. In 1997, thirty-six of the

cases in the Southern District of Florida were consolidated before Judge Nesbitt under

Case No. 96-3165, which is referred to in the pending litigation as Cedeno v. Millon

Air (although its caption is Joza, et al v. Millon Air). On January 12, 1998, Judge

Nesbitt dismissed the consolidated Cedeno cases on the ground of forum non

conveniens. The Court retained jurisdiction “over the enforcement of the concessions

made by the Defendants and approved by this Court.” Cedeno Op. at 12. These were

(1) concession of “primary liability for damage caused” by the crash, (2) acceptance

of service and jurisdiction of the Ecuadorian courts, (3) waiver of statute of limitations

defenses, and (4) satisfaction of any final judgments entered by the Ecuadorian courts.

Id. The Cedeno plaintiffs timely appealed.

      On January 27, 1998, the Congress of Ecuador enacted “Law No. 55,” which

provides:

      Without affecting its literal meaning, articles 27, 28, 29 and 30 of the
      Civil Procedure Law, are hereby interpreted so that, in case of
      international concurrent jurisdiction, the plaintiff can freely choose to
      demand [i.e., to file a complaint], in Ecuador or in another country, with
      the sole exception of cases which -- pursuant to an explicit provision of
      law, must be resolved by Ecuadorian Judges, like the divorce of an
      Ecuadorian citizen . . . . In the case that the demand is filed outside of

                                            3
      Ecuador, the national competence and the jurisdiction of the Ecuadorian
      Judges on the case will be terminated forever.

      In December 1997, just prior to the enactment of Law No. 55, a Broward

County state court dismissed a consolidated action brought against Millon Air by 106

Ecuadorans allegedly injured by the crash. Some of these plaintiffs subsequently filed

suit in an Ecuadorian court of first instance, which in April 1998 dismissed the case

because of Law No. 55.

      This development prompted the Cedeno plaintiffs in September 1998 to ask this

Court to stay the Cedeno appeal and remand the case to the District Court.

Meanwhile, on October 13, 1998, the Superior Court of Justice of Portoviejo

(Ecuador) reversed the trial court’s decision in the case involving the 106 plaintiffs

in the Broward County suit, holding that Law No. 55 did not apply to cases that a

United States court had dismissed because of forum non conveniens. “It should be

supposed that law 55 is in effect when a foreign judge has taken up the cause and is

hearing it, but not in a case in which the foreign judge has refused to hear the lawsuit,

as has done the Broward County Judge in his decision.”

      Ultimately, this Court remanded the Cedeno litigation to the District Court,

without adjudicating the correctness of the forum non conveniens dismissal.

      On October 15, 1998, the Plaintiffs in the pending case (“Plaintiffs” or “Leon


                                           4
Plaintiffs”) filed their complaint in the Southern District of Florida. The Defendants

and counsel were the same as in the Cedeno action. In December 1998, the

Defendants filed a motion to dismiss the Leon action based on forum non conveniens.

The motion included affidavits from American and Ecuadorian lawyers, vouching for

the adequacy of the Ecuadorian legal system. In April 1999, the Plaintiffs responded

to the Millon Air motion, first by informal letter and then by a formal pleading. In

their formal Response, the Plaintiffs argued that the Ecuadorian legal system was so

fragile that it was not an effective forum to decide the case. They alleged that the

Ecuadorian legal system was in turmoil and had been recently shut down by a strike

of the judges. The Plaintiffs said they were “rely[ing] on prior filings” (presumably

from the Cedeno case). The Leon plaintiffs also discussed the possibility (in their

informal letter, which was appended as an exhibit to the formal pleading) that Law

No. 55 had eliminated the jurisdiction of the Ecuadorian courts.

      On May 17, 1999, Judge Nesbitt entered an order dismissing the case on the

ground of forum non conveniens. Noting the marked similarity between the Leon and

the Cedeno cases, she relied primarily on her reasons for dismissing Cedeno

(described below), adding only explicit consideration of Law No. 55. On that issue,

she acknowledged that Law No. 55 had been enacted since her Cedeno decision, but

said that the Ecuadorian appellate court had ruled that Law No. 55 did not bar an

                                          5
Ecuadorian court from hearing claims dismissed because of forum non conveniens.

Judge Nesbitt also noted that Millon Air had given the Leon Plaintiffs the same

promises given to the Cedeno Plaintiffs. She therefore dismissed the case, although

she did not explicitly make Millon Air's concessions a condition of her dismissal

order, as she had done in Cedeno.

      The Leon Plaintiffs subsequently moved for a new trial, alleging newly

discovered evidence that Millon Air had denied liability in one of the Ecuadorian

actions, in violation of their Cedeno promise to contest only damages. The District

Court rejected this motion, on the ground that the Ecuadorian action where Millon Air

was contesting liability did not involve a Cedeno plaintiff.

B. The Cedeno Decision

      In dismissing the pending case, Judge Nesbitt relied primarily on the reasons

she had given for dismissing the Cedeno case. In Cedeno, Judge Nesbitt required

Millon Air to show that there was an adequate alternative forum, that the balance of

“private interests” and “public interests” weighed in favor of dismissing the litigation

to the alternative forum (with the public interests coming into play only where the

private interests were at or near “equipoise”), and that there would be no

inconvenience or prejudice to plaintiff in filing in the foreign forum. See Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 266-69 (1981); Gulf Oil Corp. v. Gilbert, 330

                                           6
U.S. 501, 507-09 (1947).

      Judge Nesbitt found that Millon Air had made each of the required showings.

First, she found that the Ecuadorian courts were an adequate alternative forum. She

acknowledged that there had been a strike by judges and that some judges had been

removed from the Supreme Court, but concluded, based on Millon Air affidavits, that

the strike was over and that the “instability has been resolved and the Ecuadorian legal

system is again functioning normally.” Cedeno Op. at 4 (unreported). The fact that

punitive damages would be unavailable in Ecuador was of no moment because the

“potential for a smaller damage award is not a basis for the denial” of a forum non

conveniens motion; the remedy provided by the Ecuadorian courts would not be “‘so

clearly inadequate or unsatisfactory that it is no remedy at all.’” Id. at 6 (quoting

Piper, 454 U.S. at 254).

      Second, Judge Nesbitt weighed private interests, i.e., location of proof,

availability of compulsory process, and other practical problems. Judge Nesbitt found

that the private interests weighed in favor of dismissing the case, primarily because

the witnesses as to damages (the only issue in the case, since Millon Air conceded

liability) were located in Ecuador, beyond the reach of the District Court’s compulsory

process, and “presumably” most of them spoke only Spanish. Judge Nesbitt conceded

that a plaintiff’s choice of forum was accorded deference, particularly where the

                                           7
forum was the defendant’s home forum. However, Judge Nesbitt noted that foreign

plaintiffs litigating in the United States were entitled to “‘less deference’” in their

forum choice. Id. at 9 (quoting Piper, 454 U.S. at 256). “Accordingly, the Plaintiffs’

choice of forum in this case does not deserve any deference other than considering it

in the context of the overall convenience of the parties and in that light, Ecuador is

still the most convenient forum for the parties to try this case.” Id.

      Next, the District Court considered the public interests, i.e., “administrative

difficulties stemming from court congestion, the interest in having local controversies

decided in their home forum and the interest in having laws determined by their home

tribunal.” Id. at 9-10. Judge Nesbitt indicated that her inquiry here was academic,

since she believed that public interests come into play only when the private interests

are at or near equipoise, interests she had already found strongly favored dismissing.

Nevertheless, the District Court noted that the public interest factors also favored

dismissing. Judge Nesbitt said she was “cognizant of the backlog in Ecuador’s court

system” but noted that the damages issue was “very simple,” and that the Cedeno

claims could be consolidated in Ecuador with the Broward cases. Id. at 10. The Court

also noted that Ecuador had an interest in trying cases that bore on Ecuador’s air

traffic control system, and that Ecuador would be better able to cope with Spanish-

speaking witnesses. Id. at 10-11.

                                           8
      Finally, the Court noted that it would be possible to reinstate the case in

Ecuador, since all defendants had agreed to jurisdiction and service of process. The

Court did not in this opinion discuss Law No. 55, since it had not at that time been

enacted.

                                      Discussion

      A court of appeals reviews a dismissal based on forum non conveniens for

abuse of discretion, according the District Court “‘substantial deference.’” Republic

of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 951 (11th Cir. 1997)

(quoting Piper, 454 U.S. at 257). Factual determinations are reviewed for clear error.

Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1196 (11th Cir. 1983).

      Except in one particular, we agree with the District Court’s summary of the law

of forum non conveniens. The moving party must demonstrate that (1) an adequate

alternative forum is available, (2) the public and private factors weigh in favor of

dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without

undue inconvenience or prejudice. See Republic of Panama, 119 F.3d at 951; C.A. La

Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). As described

more fully below, balancing private interests requires determining the convenience of

the parties, affording domestic plaintiffs “a strong presumption” that their forum

choice is sufficiently convenient, id. (internal quotation marks omitted), and a weaker

                                           9
presumption applying in cases brought by foreign plaintiffs, Piper, 454 U.S. at 256.

However, in stating that the balance of public interests was superfluous because such

factors enter the equation only when the private interest factors are at or near

“equipoise,” Cedeno op. at 3, see also C.A. La Seguridad, 707 F.2d at 1307, Judge

Nesbitt somewhat overstated the matter. As a leading commentator has noted, even

though the private factors are “generally considered more important” than the public

factors, the better rule is to consider both factors in all cases, 17 Moore’s Federal

Practice § 111.74[3][b] at 111-221 (3d ed. 2000), and this has been our approach in

recent cases, Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283-84 (11th Cir.

2001).

      In challenging the District Court's application of these criteria, the Appellants

dispute (a) the adequacy of the Ecuadorian forum and (b) the District Court’s

balancing of the private interests.

      A. Availability and Adequacy of the Ecuadorian Forum

      A defendant has the burden of persuasion as to all elements of a forum non

conviens motion, including the burden of demonstrating that an adequate alternative

forum is available. Republic of Panama, 119 F.3d at 951. Availability and adequacy

warrant separate consideration. See Satz, 244 F.3d at 1283-84. An alternative forum

is “available” to the plaintiff when the foreign court can assert jurisdiction over the

                                          10
litigation sought to be transferred. See Piper, 454 U.S. at 254 n.22 (citation omitted)

(“Ordinarily, [the requirement of an alternative forum] will be satisfied when the

defendant is ‘amenable to process’ in the other jurisdiction.”). In the pending case,

the dispute about whether Law No. 55 precludes Ecuadorian courts from asserting

jurisdiction over Plaintiffs’ claims is a dispute about availability.

      A defendant also bears the burden of proving the “adequacy” of the alternative

forum. See Satz, 244 F.3d at 1282 (defendant carried burden of proving Argentina

was an adequate forum). In Piper, the Supreme Court has noted that dismissal may

be improper where “the remedy provided by the alternative forum is so clearly

inadequate or unsatisfactory that it is no remedy at all.” 454 U.S. at 254. Courts have

been strict about requiring that defendants demonstrate that the alternative forum

offers at least some relief. See, e.g., Mercier v. Sheraton International, Inc., 935 F.2d

419, 425 (1st Cir. 1991) (reversing forum non conveniens dismissal required where

defendant failed to prove “expressly that Turkish law recognizes claims for breach of

contract and tortious interference with contract”).

      However, “[a]n adequate forum need not be a perfect forum,” Satz, 244 F.3d

at 1283, and courts have not always required that defendants do much to refute

allegations of partiality and inefficiency in the alternative forum. As Judge Ryskamp

has noted, the argument that the alternative forum is too corrupt to be adequate “does

                                           11
not enjoy a particularly impressive track record.” Eastman Kodak Co. v. Kavlin, 978

F. Supp. 1078, 1084 (S.D. Fla. 1997). However, while “[s]ome inconvenience” to

litigants does not indicate that a forum is inadequate, Satz, 244 F.3d at 1283 (internal

quotation marks omitted), courts have said that extreme amounts of partiality or

inefficiency may render the alternative forum inadequate. See, e.g., Bhatnagar v.

Surrendra Overseas Ltd., 52 F.3d 1220, 1227-31 (3d Cir. 1995) (Indian forum was

inadequate where delays of up to 25 years were possible).

      The reluctance to hold an alternative forum inadequate on these grounds has

manifested itself not only in the degree of corruption or inefficiency that must be

shown, but also in the allocation of the burdens of proof. Some courts have said that

an alternative forum is presumptively impartial and efficient, and have put at least the

burden of production on the plaintiff to show that this is not so. See, e.g., Vaz

Borralho v. Keydril Co., 696 F.2d 379, 393-94 (5th Cir. 1983) (“the district court may

presume that the foreign law is adequate, unless the plaintiff makes some showing to

the contrary, or unless conditions in the foreign forum otherwise made known to the

court, plainly demonstrate that the plaintiffs are highly unlikely to obtain basic justice

therein”), overruled on other grounds, In re Air Crash Disaster Near New Orleans,

Louisiana on July 9, 1982, 821 F.2d 1147, 1163 n.25 (5th Cir. 1987); cf. El-Fadl v.

Central Bank of Jordan, 75 F.3d 668, 678 (D.C. Cir. 1996) (plaintiff’s general

                                           12
allegations of lack of impartiality insufficient to make forum inadequate); Mercier v.

Sheraton International, Inc., 981 F.2d 1345, 1351 (1st Cir. 1992) (“Mercier II”)

(rejecting plaintiffs’ attack on Turkish courts’ ability to treat women fairly, as not

substantiated by any evidence). Going further, the Second Circuit has said that

“[c]onsiderations of comity preclude a court from adversely judging the quality of a

foreign justice system absent a showing of inadequate procedural safeguards,” PT

United Can Co. v. Crown, Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998), though

more recently that court has indicated a willingness to reject judgments of

dysfunctional foreign legal systems, Bridgeway Corp. v. Citibank, 201 F.3d 134, 141-

42 (2d Cir. 2000) (declining to enforce judgment by Liberian court).

       In Eastman Kodak, the District Court for the Southern District of Florida

determined that, where the plaintiff had produced evidence of serious partiality in

Bolivia, the defendants had failed to meet their burden of persuading the Court that

this evidence was incorrect, and that the forum was in fact adequate. 978 F. Supp. at

1087.1 We think this was the correct approach: defendants have the ultimate burden

of persuasion, but only where the plaintiff has substantiated his allegations of serious


       1
         In other cases where the alternative forum has been found to be potentially inadequate
because of a dysfunctional legal system, the burden of persuasion has not been clearly identified;
in practice the plaintiffs have usually come forward with some evidence. See, e.g., Bhatnagar, 52
F.3d at 1228.

                                               13
corruption or delay. Thus, where the allegations are insubstantially supported, as in

Mercier II and El-Fadl, a District Court may reject them without considering any

evidence from the defendant. But where the plaintiff produces significant evidence

documenting the partiality or delay (in years) typically associated with the

adjudication of similar claims, and these conditions are so severe as to call the

adequacy of the forum into doubt, then the defendant has the burden to persuade the

District Court that the facts are otherwise. See Eastman Kodak, 978 F. Supp. at 1087;

cf. Satz, 244 F.3d at 1283 (defendant’s evidence was sufficient to sustain burden of

demonstrating adequacy of Argentine forum). This approach forbids dismissal to

alternative forums that realistically are not capable of producing a remedy for the

plaintiff’s injuries,2 without crediting cursory attacks on legal systems simply because

they are somewhat slower or less elaborate than ours.

       Applying the foregoing approach to the pending case, we first consider whether

the Ecuadorian courts are available notwithstanding Law No. 55. In her opinion in the

pending case, Judge Nesbitt explicitly considered the one factor distinguishing the


       2
         A survey conducted by Prof. Robertson found that few dismissed cases are actually litigated
to a judgment in the alternative forum. David R. Robertson, Forum Non Conveniens in America and
England: "A Rather Fantastic Fiction”,103 L.Q. Rev. 398, 419 (1987). Robertson reported that of
the eighty-five dismissals in his study, only three actually resulted in a judgment by a foreign court.
See also Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 683 (Tex. 1990) (Doggett, J.,
concurring) ("A forum non conveniens dismissal is often, in reality, a complete victory for the
defendant.").

                                                  14
forum non conveniens claim in Leon from the prior claim in Cedeno--the significance

of Law No. 55. Law No. 55 provides that once a lawsuit is filed outside Ecuador, “the

national competence and the jurisdiction of the Ecuadorian Judges on the case will be

terminated forever.” Judge Nesbitt determined that the Plaintiffs’ Law No. 55 claim

was defeated by the Portoviejo appellate court’s ruling that Law No. 55 did not apply

to litigation dismissed from a foreign court on the ground of forum non conveniens.

While the Plaintiffs contend that there remains controversy in Ecuador concerning

Law No. 55, we cannot say that Judge Nesbitt’s determination as to the current

interpretation of Law No. 55 in Ecuador was clearly erroneous. Nor is the alleged

uncertainty over Law No. 55 an obstacle to dismissal; the District Court would

presumably reassert jurisdiction over the case in the event that jurisdiction in the

Ecuadorian courts is declined. See Gschwind v. Cessna Aircraft Co., 161 F.3d 602,

607 (10th Cir. 1998) (conditions of dismissal included consent to reinstatement if

jurisdiction in France was declined).

      The next issue concerns the Plaintiffs’ attack on the efficiency and impartiality

of the Ecuadorian courts. To meet their burden of production on this issue, the

Plaintiffs rely entirely on the arguments and affidavits submitted in the Cedeno action.

The Plaintiffs’ major allegation in Cedeno was that the judges of Ecuador were out on

strike and the 31 justices of the Supreme Court had been removed by the Congress.

                                          15
However, Judge Nesbitt noted that as of the time of her ruling in Cedeno, “[t]he

judges have returned to work,” “the instability has been resolved[,]” and “the

Ecuadorian legal system is again functioning normally.” Cedeno op. at 4. The

Plaintiffs do not contend on this appeal that these findings were clearly erroneous.3

       The Plaintiffs’ other challenge in the Cedeno litigation to the adequacy of the

Ecuadorian forum was a claim of specific, chronic shortcomings with the Ecuadorian

legal system. In the Cedeno record, affidavits from observers of Ecuadorian courts

identified these deficiencies: a lack of financial resources, illustrated by the allocation

to the courts of less than two percent of the national budget, the use of manual

typewriters in 90 percent of the courts, and the absence of computers in the trial

courts; congestion and delays, illustrated by case filings of one thousand lawsuits per

judge, with disposition of 200-300 cases per judge; and backlogs, illustrated by one


       3
         We note that since Judge Nesbitt’s dismissal of Cedeno and the pending case, a district court
in the Southern District of New York sua sponte has raised the issue of the adequacy of Ecuador’s
legal system, in considering whether to dismiss a case involving alleged complicity by the
Ecuadorian government in massive environmental torts. See Aguinda v. Texaco, Inc., No. 93 Civ.
7527 (TSR) (S.D.N.Y. Jan. 31, 2000). The Court was concerned about a military coup that, eleven
days prior to the writing of the opinion, had overthrown the democratically elected president; the
Court re-opened the record for submissions on the adequacy of the Ecuadorian courts in the
confused aftermath of the coup, but has so far not issued a final ruling on the forum non conveniens
motion. However, the Ecuadorian political situation was much more relevant in that suit than in this
case, which implicates no sovereign interests and involves private parties only. Additionally, there
is some reason to believe that the Ecuadorian government has stabilized in the past year. See Pilar
Valero, Ecuadorian Chief Faces Protests Like Those That Sparked Coup, EFE News Service, Jan.
22, 2001 (describing peaceful protests on anniversary of coup, without backing from the armed
forces).

                                                 16
commercial case that has been pending for 12 years.

       We do not believe this evidence is sufficient to satisfy the Plaintiffs’ burden of

production. While the logistical and financial problems facing the Ecuadorian courts

are undoubtedly substantial, the Plaintiffs have not made a sufficient showing that

such problems would preclude the fair and reasonably expeditious adjudication of the

simple damages issues presented by the pending case.4 Significantly, the Ecuadorian

courts handling claims by other Manta air crash victims have issued their

jurisdictional rulings in short order, and they appear to be taking submissions on the

merits in at least one case (that of Ms. Roca, discussed below) where Millon Air is

disputing liability. On this record, the District Court did not exceed its discretion in

finding Ecuador to be an adequate forum.

       B. Balancing the Private and Public Interests



       4
          The two percent allocation of the Ecuadorian national budget to the judiciary is
insufficiently probative of an inadequate forum when one considers that in the United States the
federal judiciary's budget is only two-tenths of one percent of the national budget. See Judith Resnik,
Trial As Error, Jurisdiction As Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev.
924, 954 (2000). Although there are few computers or electric typewriters in Ecuadorian courts, our
courts dispensed justice for nearly two centuries before the advent of electric typewriters and
computers. The identification of one long-delayed commercial case is not a persuasive basis to
gauge the adequacy of entire court system. Cf. United States v. Secretary of Housing and Urban
Development, 239 F.3d 211 (2d Cir. 2001) (original complaint filed in 1980). The large number of
filings is not remarkable either, as some federal judges endure staggering numbers of annual filings,
see Administrative Office of the United States Courts, Judicial Business of the United States Courts,
Table X-1A, at 388 (1999) (1,029 weighted filings per judgeship in Southern District of California);
id. at 387 (900 weighted filings per judgeship in Western District of Texas).

                                                  17
      “Private interests” include, in Justice Jackson’s phrasing, “ease of access to

sources of proof; availability of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witnesses . . . and all other practical

problems that make trial of a case easy, expeditious and inexpensive.” Gilbert, 330

U.S. at 508. As already noted, there is normally a strong presumption that the plaintiff

has chosen a sufficiently convenient forum, and defendants in such cases are required

to prove “vexation” and “oppressiveness” that are “out of all proportion” to the

plaintiff’s convenience. Piper, 454 U.S. at 241 (internal quotation marks omitted).

However, the presumption that a plaintiff has chosen a sufficiently convenient forum

“weakens” when the plaintiff is a foreigner litigating far from home, C.A. La

Seguridad, 707 F.2d at 1308 n.7, and in such cases plaintiff’s forum choice is

accorded “less deference,” Piper, 454 U.S. at 256.

      Yet even according Plaintiffs’ forum choice at least the diminished presumption

of convenience to which it is entitled, the District Judge did not exceed her discretion

in finding the private factors to weigh in favor of dismissal. Judge Nesbitt’s finding

was premised on the Defendants’ having conceded liability for the crash in the Cedeno

action, which meant that the only triable dispute was whether the deaths or injuries of




                                          18
the Plaintiffs were caused by the crashing airplane or the impact of debris from it,5 and

the extent of damages.6 As Judge Nesbitt noted, the evidence necessary to litigate

these matters was located in Ecuador and was in the Spanish language. While the

Plaintiffs have agreed to appear in the District Courts and to assume the cost of

deposing witnesses in Ecuador, cf. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46

(2d Cir. 1996) (offer to transport witnesses offset inconvenience of witnesses’ foreign

location), the Plaintiffs’ offer did not extend to guaranteeing the presence in the

United States of non-plaintiffs who could verify whether in fact a plaintiff had been

injured by the crash, and to the degree alleged. These persons will presumably be

among the key defense witnesses.

       We also note that the Plaintiffs have not challenged Judge Nesbitt’s finding that

the public interests strongly favored dismissal. As she observed, the Ecuadorian

courts are already hearing Manta crash cases, and Ecuador has an interest in

determining the extent of damages payable when planes crash in Ecuador on


       5
         The damages determination will necessarily involve an issue of causation, not in the sense
of whether negligence caused the crash, but only in the sense of whether the crash caused the
Plaintiff's injuries.
       6
         The Plaintiffs contend that, despite the Defendants' admission of liability, evidence in Miami
will be relevant to the issue of comparative fault. However, the Defendants have made it clear that
their admission of liability is absolute, and are not claiming an apportionment for comparative fault.
They also point out that comparative fault is not recognized in Ecuador, and, in any event, would
be an unlikely defense to claims of people injured on the ground by a crashing airplane.

                                                  19
Ecuadorian citizens. See Cedeno op. at 9. Since the Plaintiffs have not met their

burden of producing sufficient evidence that Ecuador is an inadequate forum, and

since the Defendants have shown that Ecuador is an available forum and that the

public and private factors both weigh in favor of dismissal, Judge Nesbitt’s decision

to dismiss was within her discretion (subject to the modification described below).




                                         20
       C. Denial of a New Trial

       The Plaintiffs unsuccessfully sought to challenge the dismissal order by motion

for a new trial under Fed. R. Civ. P. 59 and 60(b), on the ground that Millon Air,

despite its concession as to liability in Cedeno, had disputed its liability to Rosa Amira

Delgado Roca in an Ecuador court. The District Court properly denied relief, noting

that the concession as to liability applied only to plaintiffs in the Cedeno (and Leon)

litigation, and that Roca was not among those plaintiffs.

       D. Conditions of the Dismissal

       Unlike the dismissal order in Cedeno, the dismissal order in the pending case

(perhaps inadvertently) did not recite the conditions to which the Defendants had

agreed. We therefore modify the dismissal order in this case, see 28 U.S.C. § 2106

(authority of appellate court to modify), to include the four conditions recited in the

Cedeno order. See Cedeno Order of January 12, 1998, at 12 (Concessions A-D). In

addition, because of the arguable uncertainty concerning the future interpretation of

Law No. 55 in Ecuador, we further modify the dismissal order in this case to provide

that any case dismissed pursuant to the District Court's order may be reinstated in the

event that jurisdiction to entertain such a case is rejected by a final decision of a court

in Ecuador. See Gschwind, 161 F.3d at 607. We note that conditioning the dismissal

does not destroy finality, nor leave the case pending in the District Court. See Sigalas

                                            21
v. Lido Maritime, Inc., 776 F.2d 1512, 1515-16 (11th Cir. 1985).

                                            Conclusion

       The Order of the District Court dismissing on the ground of forum non

conveniens is modified as provided in this opinion, and, as modified, is affirmed. The

Order denying a new trial is AFFIRMED.7




       7
         We also deny the Appellees' motion for counsel fees, which alleged that the Leon Plaintiffs
have failed to cite any part of the record in their appellate brief. That motion was referred to this
panel. The Plaintiffs have adequately indicated their reliance on the record in the Cedeno litigation,
on which Judge Nesbitt explicitly relied, and, especially since counsel for both sides were the same
in both cases, the Appellees have suffered no prejudice or added expense simply because the Cedeno
affidavits were not formally made part of the record in the Leon litigation.


                                                 22
