 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 25, 2019          Decided January 10, 2020

                       No. 18-7193

 IN RE: AIR CRASH OVER THE SOUTHERN INDIAN OCEAN ON
                    MARCH 8, 2014,

  ELIZABETH SMITH, AS PERSONAL REPRESENTATIVE OF THE
 SPOUSES, NEXT OF KIN, OTHER STATUTORY BENEFICIARIES,
    AND THE ESTATES OF THE MH370 PASSENGERS (SEE
    COMPLAINT FOR STATUTORY BENEFICIARIES), ET AL.,
                      APPELLANTS

                            v.

MALAYSIA AIRLINES BERHAD, DOING BUSINESS AS MALAYSIA
                  AIRLINES, ET AL.,
                     APPELLEES


   Consolidated with 18-7195, 18-7196, 18-7197, 18-7198


       Appeals from the United States District Court
               for the District of Columbia
                   (No. 1:16-mc-01184)


       Stephen F. Rosenthal argued the cause for appellants
Thomas C. Gaspard, et al. With him on the briefs was Floyd
A. Wisner.
                              2




       Caitlyn E. Hubbard argued the cause for appellant
Thomas Wood. With her on the briefs were Marianne M.
Auld and Hugh G. Connor II.

       Mary Schiavo was on the brief for appellants Elizabeth
Smith, et al. Jodi W. Flowers entered an appearance.

       Eric B. Wolff argued the cause for appellees. With
him on the joint brief were Gregory F. Miller, Telly Andrews,
and Richard A. Walker. Eric J. Rhine entered an appearance.

   Before: WILKINS and RAO, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge RAO.

     RAO, Circuit Judge: This appeal arises out of the
unexplained disappearance of Malaysia Airlines Flight
MH370 somewhere over the Southern Indian Ocean in the
early hours of March 8, 2014. A series of extensive searches
and investigations conducted over more than four years
yielded no definitive answers as to the cause of this tragedy,
and all passengers and crew members on board the flight are
presumed dead. Representatives of many of the passengers
filed lawsuits in the United States asserting, inter alia,
Montreal Convention claims against Malaysia Airlines
Systems Berhad, Malaysia’s national airline at the time of
Flight MH370, its current national airline, Malaysia Airlines
Berhad, and the airlines’ insurers, as well as state law
products liability and wrongful death claims against Boeing,
which manufactured the aircraft in question in Washington
state.
                                3



     Those lawsuits were centralized into a multidistrict
litigation in the United States District Court for the District of
Columbia and coordinated for pretrial purposes. Appellees
moved jointly to dismiss for forum non conveniens and the
district court granted that motion in full, concluding that
Malaysia is a more convenient forum to hear all of the
appellants’ claims. While the Court has great sympathy for
the victims of this tragedy and their families, we cannot
disregard the narrow standard governing our review in this
case. We conclude that the district court did not clearly abuse
its discretion in dismissing appellants’ lawsuits for forum non
conveniens and affirm the decision in full.

                                I.

    The district court’s opinion recounts the factual history
surrounding Flight MH370’s disappearance and the ensuing
investigations in detail. See In re Air Crash Over S. Indian
Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018). We will therefore
focus only on the facts pertinent to this appeal.

     Malaysia Airlines Flight MH370 disappeared en route
from Kuala Lumpur International Airport in Malaysia to
Beijing, China, early in the morning on March 8, 2014. On
board Flight MH370 were 227 passengers and 12 Malaysian
crew members. The 227 passengers were of 14 nationalities,
including 152 Chinese citizens, 38 Malaysian citizens, and 3
United States citizens. The aircraft in question was a Boeing
777-2H6ER that was designed and manufactured at Boeing’s
facility in Washington state and delivered to the airline in new
condition in May 2002.

     An extensive search for the missing aircraft ensued
following the plane’s disappearance. The search team
                              4



ultimately concluded that Flight MH370 likely crashed in the
Southern Indian Ocean after running out of fuel, but neither
the plane nor other critical pieces of evidence, such as the
cockpit voice recorder and flight data recorder, were
recovered. In addition to the search for physical evidence, the
Malaysian government took the lead on a separate civil
investigation into why Flight MH370 had disappeared. This
investigation culminated in a 449-page report, which
concluded that while the investigation team was “unable to
determine the real cause for the disappearance of MH370,”
human interference or error were more likely the cause of the
plane’s disappearance than aircraft or system malfunction. In
connection with this investigation and a related criminal
investigation, the civil investigation team and the Malaysian
government conducted numerous interviews of witnesses
located in Malaysia, including airline employees, family
members and acquaintances of the Malaysian crew, air traffic
controllers, cargo shippers, and Malaysian investigators.

     At the time of Flight MH370’s disappearance, Malaysia
Airlines Systems Berhad (“MAS”) served as the national
airline of Malaysia and the Malaysian government held a
direct, controlling stake in the company. After the crash, the
Malaysian government enacted the Malaysian Airline System
Berhad (Administration) Act 2015 (“Act 765”). Act 765
incorporated a new, separate entity—Malaysia Airlines
Berhad (“MAB”)—as the new Malaysian national airline,
transferred MAS’s assets to MAB, and placed MAS under
administration. Under the explicit terms of Act 765, MAB is
not a successor corporation to MAS and has not assumed any
of MAS’s liabilities related to Flight MH370.
                                 5



     Beginning in early 2016, a total of forty lawsuits related
to Flight MH370’s disappearance were filed in various federal
district courts across the United States, and the Judicial Panel
on Multidistrict Litigation transferred them to the District of
Columbia district court for pretrial proceedings. The various
plaintiffs, all legal representatives or beneficiaries of
decedents, divided into two groups in the proceedings below,
one represented by Podhurst Orseck, P.A. and Wisner Law
Firm, P.C. (the “Podhurst Appellants”), and another
represented by Motley Rice LLC and Spagnoletti & Co. (the
“Motley Rice Appellants”). The parties are largely the same
on appeal, except that one appellant, Thomas Wood, now
proceeds individually. Appellant Wood is a U.S. citizen and
resident suing on behalf of his deceased brother, Philip Wood,
a U.S. citizen who was living in Malaysia at the time of Flight
MH370.1

     Following more than a year of court-ordered discovery
on various threshold issues, appellees filed a joint motion to
dismiss under the doctrine of forum non conveniens.
MAS/MAB also sought dismissal on other threshold grounds,
including sovereign immunity under the Foreign Sovereign
Immunities Act (“FSIA”) and lack of subject matter

1
   Numerous civil cases arising out of Flight MH370’s
disappearance are also pending in Malaysia. Seventy-seven of the
eighty-eight decedents represented in the legal actions that
comprise this litigation are also represented in cases pending in
Malaysia. Boeing has not been named as a party to any of the
Malaysian suits to date, but Boeing has consented to the jurisdiction
of the Malaysian courts and agreed to make all relevant evidence
available in Malaysia as a condition of dismissal for forum non
conveniens.
                                6



jurisdiction under the Montreal Convention. Relying on the
Supreme Court’s decision in Sinochem International Co. v.
Malaysia International Shipping Corp., the district court
declined to reach the jurisdictional challenges and instead
dismissed on the basis of forum non conveniens. In re Air
Crash Over S. Indian Ocean, 352 F. Supp. 3d at 35 (citing
549 U.S. 422, 425 (2007)). This timely appeal followed.

                                II.

    A party seeking dismissal for forum non conveniens bears
the burden of showing both (1) that an adequate alternative
forum is available to hear the dispute, and (2) if so, that the
balance of certain public and private interest factors strongly
counsels in favor of trying the dispute in the alternative
forum. See, e.g., Agudas Chasidei Chabad of U.S. v. Russian
Fed’n, 528 F.3d 934, 950 (D.C. Cir. 2008). The Supreme
Court has instructed that “[t]he forum non conveniens
determination is committed to the sound discretion of the trial
court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).
So long as the district court “has considered all relevant
public and private interest factors, and … its balancing of
these factors is reasonable,” we must afford that decision
“substantial deference” and will overturn only if we find a
“clear abuse of discretion.” Id. Under this narrow standard,
we find no basis to reverse the district court’s reasoned
decision.

     First, the district court did not abuse its discretion when it
concluded that Malaysia is an adequate, available forum for
appellants’ Montreal Convention and state law products
liability and wrongful death claims. Only the Motley Rice
Appellants directly challenge this determination on appeal.
                              7



They argue that the Malaysian government “has demonstrated
clear intent to, and did, deprive [appellants] of any real
adequate and available forum in Malaysia” through its
enactment of Act 765, which transferred all of MAS’s assets
to MAB without deeming MAB a successor entity to MAS.
For the first time on appeal, the Motley Rice Appellants also
contend that Malaysian law would provide such insignificant
damages for appellants’ tort claims against Boeing that
forcing appellants to try those claims in Malaysia would
“obliterate[] any real likelihood of trial.”

     We agree with the district court that the enactment of Act
765 does not render Malaysia an inadequate forum. As the
district court explained, MAS appears to have an insurance
policy that would apply to appellants’ Montreal Convention
claims—and even assuming Act 765 did render MAS
judgment proof, a U.S. forum would not provide any greater
likelihood of redress. Moreover, because the Motley Rice
Appellants failed to raise any challenge to the adequacy of
tort damages under Malaysian law before the district court,
those arguments are forfeited. See Gov’t of Manitoba v.
Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent
exceptional circumstances, a party forfeits an argument by
failing to press it in district court.”).

     In any event, in the context of a forum non conveniens
inquiry, “a foreign forum is not inadequate merely because it
has less favorable substantive law.” Agudas Chasidei Chabad,
528 F.3d at 950 (citation and quotation marks omitted);
accord Piper Aircraft, 454 U.S. at 247 (“The possibility of a
change in substantive law should ordinarily not be given
conclusive or even substantial weight in the forum non
conveniens inquiry.”). Where, as here, it appears undisputed
                                  8



that an alternative forum would provide a plaintiff at least
some remedy, a district court acts within its discretion in
deeming that forum an adequate alternative to a U.S. court.
See, e.g., Piper Aircraft, 454 U.S. at 254 n.22 (explaining that
a forum will only be deemed inadequate “[i]n rare
circumstances … where the remedy offered by the other
forum is clearly unsatisfactory,” such as “where the
alternative forum does not permit litigation of the subject
matter of the dispute”).2

     Nor did the district court clearly abuse its discretion in
concluding that the balance of relevant public and private
interest factors weighs heavily in favor of trying appellants’
cases in Malaysia. The relevant public interest factors include,
inter alia, the “‘administrative difficulties’ when ‘litigation is
piled up in congested centers,’” the “‘local interest in having
localized controversies decided at home,’” and the desire to
avoid requiring a court to “‘untangle problems in conflict of
laws, and in law foreign to itself.’” Shi v. New Mighty U.S.
Tr., 918 F.3d 944, 952 (D.C. Cir. 2019) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947)). The private
interest analysis, on the other hand, focuses on “‘the relative
ease of access to sources of proof,’” the costs and procedural

2
  In his discussion of the public interest factors governing the forum
non conveniens analysis, Appellant Wood argues that his difficulty
in securing the counsel of his choice in Malaysia “casts doubt on
whether Malaysia constitutes an adequate, alternative forum.”
Neither Wood nor any of the Podhurst Appellants raised this
argument in the proceedings below. Thus, to the extent this passing
reference can be construed as a standalone challenge to Malaysia’s
adequacy as an alternative forum, that challenge has been forfeited.
See Manitoba, 923 F.3d at 179.
                                9



mechanisms required to secure the attendance of witnesses,
and “‘all other practical problems that make trial of a case
easy, expeditious and inexpensive.’” Id. at 950 (quoting
Gilbert, 330 U.S. at 508).

     The district court found that Malaysia’s public interest in
hearing claims arising out of Flight MH370’s disappearance
far outweighs that of the United States, even as to the tort
claims asserted against U.S.-based manufacturer Boeing. The
district court further held that the private interest factors tilt
strongly in favor of trying these cases in Malaysia, given the
overwhelming amount of evidence and witnesses located in
Malaysia and the potentially insurmountable challenges that
would arise from attempting to make that evidence available
in a United States court.

     We affirm on substantially the same grounds provided in
the district court’s well-reasoned opinion, but pause here to
address two points raised by appellants. The first relates to the
degree of deference the district court applied to the various
appellants. As the court recognized, the starting point for the
forum non conveniens analysis is “a strong presumption in
favor” of a plaintiff’s chosen forum. Simon v. Republic of
Hungary, 911 F.3d 1172, 1182 (D.C. Cir. 2018) (quoting
Piper Aircraft, 454 U.S. at 255–56). But the precise degree of
deference afforded a plaintiff’s forum choice varies
depending on the plaintiff’s connection to the forum. A
plaintiff who chooses to sue in his home forum receives the
strongest presumption, whereas a foreign plaintiff with
minimal or no connections to the United States is entitled to
less deference. Piper Aircraft, 454 U.S. at 256. Accordingly,
the district court afforded Appellant Wood, as a U.S. citizen
and resident representing a U.S. citizen decedent, “the highest
                              10



degree of deference” and tailored its analysis of the remaining
appellants’ interests in having their claims heard in the United
States to their particular circumstances. In re Air Crash Over
S. Indian Ocean, 352 F. Supp. 3d at 45.

     On appeal, the foreign appellants contend that the district
court erroneously refused to afford any deference at all to
their decision to sue in the United States. They also criticize
the district court for failing to specify the precise degree of
deference it applied to them, claiming that “[t]his omission, in
and of itself, was reversible error.” These arguments rest on a
fundamental misconception of what the forum non conveniens
analysis requires. Indeed, this Court has stressed that
“applying the correct burden of proof is not a box-checking
exercise.” Simon, 911 F.3d at 1185. What matters is not the
particular words a district court uses but whether the court’s
analysis fits the proper standard.

     Here, the district court’s analysis reflected a careful
consideration of the foreign appellants’ interests in trying
these cases in the United States and a thoughtful balancing of
the public and private interest factors with respect to those
individuals specifically. Moreover, as already noted, the
district court correctly recognized that Appellant Wood was
entitled to the greatest degree of deference. Because the court
concluded that even Wood’s substantial interest in trying
these claims in the United States could not overcome the
significant evidentiary problems posed by proceeding in a
U.S. court, it necessarily followed that the foreign
appellants—who were concededly entitled to less deference
than Wood—could not succeed in showing that the balance of
interests weighed in favor of maintaining their claims here.
We find no reversible error in the district court’s reasoning
                               11



regarding the appropriate levels of deference afforded to
appellants’ claims.

     Second, appellants argue that the district court erred by
first declining to reach the separate sovereign immunity
challenges raised by MAS/MAB and then relying on the
existence of potentially “intractable immunity questions” as a
justification for its forum non conveniens dismissal.
According to appellants, this analysis was inconsistent with
Sinochem, under which a court may elect to grant a motion for
forum non conveniens while “bypassing” threshold issues
relating to the court’s subject matter jurisdiction. See 549 U.S.
at 432.

     As an initial matter, appellants incorrectly suggest that
the district court treated MAS/MAB’s immunity challenges
under the FSIA “as granted for purposes of its forum non
conveniens analysis.” Nor did the court impermissibly
“leapfrog” the immunity questions and then rely on the same
unresolved immunity issues to deny appellants their chosen
forum. Instead, the district court merely conducted a
preliminary assessment of MAS/MAB’s immunity claims and
concluded that “[t]he potential of intractable immunity
questions that might stymie Boeing’s ability to implead other
defendants raises the prospect of precisely the kind of
oppressive and vexatious outcome that forum non conveniens
dismissal is designed to avoid.” In re Air Crash Over S.
Indian Ocean, 352 F. Supp. 3d at 53 (citation omitted).
Nothing in Sinochem requires district courts to conclusively
determine whether a defendant enjoys sovereign immunity
before considering immunity as a relevant factor in its forum
non conveniens analysis. Here, Boeing and MAS/MAB raise
serious arguments regarding MAS/MAB’s likely immunity,
                               12



and it was entirely proper for the district court to recognize
that serious jurisdictional questions exist and weigh that as a
factor in favor of dismissal.

     In addition, appellants argue that the district court placed
undue weight on sovereign immunity concerns as a private
interest factor favoring dismissal. The district court’s opinion,
however, makes clear that it considered all relevant
circumstances, including the potential immunity issues, and
concluded that “taken as a whole, the private interest factors
favor dismissal of these claims.” In re Air Crash Over S.
Indian Ocean, 352 F. Supp. 3d at 53 (emphasis added).
Sinochem imposes no bar on a district court’s ability to
acknowledge the existence of meaningful jurisdictional
questions in determining whether “a foreign tribunal is plainly
the more suitable arbiter of the merits of the case.” See
Sinochem, 549 U.S. at 425. Thus, appellants’ Sinochem-based
challenges also fail.

                           *   *    *

     In considering appellees’ motion to dismiss for forum
non conveniens, the district court carefully weighed the
relevant public and private interest factors and reasonably
concluded that Malaysia is a more convenient forum to try
appellants’ claims. Because we find no “clear abuse of
discretion” in the district court’s reasoning, we affirm.

                                                    So ordered.
