         10-4406-cv (L)
         Frederiksson v. Sikorsky Aircraft Corp.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 7th day of June, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                           Circuit Judges,
 9                MIRIAM GOLDMAN CEDARBAUM,
10                           District Judge.*
11
12
13       ULLA CHRISTINE FREDERIKSSON, individually, and as personal
14       representative of the ESTATE OF PETER JARL FREDERIKSSON and
15       as guardian ad litem for her minor children, NICLAS
16       FREDERIKSSON, SEBASTIAN FREDERIKSSON AND NICOLE
17       FREDERIKSSON,
18
19                        Plaintiff-Counter-Defendant-Appellant,
20
21       MARJATTA PEURALA, individually, and as personal
22       representative of the ESTATE OF SEPPO ANTERO PEURALA, ANTTI
23       OLAVI PEURALA, PIRKKO ONVERVA KOOPERI, Individually, and as
24       personal representative of the ESTATE OF ONNI MATTI KOPPERI,
25       MARIKA KOPPERI-GRONLUND,
26
27                                      Plaintiffs-Appellants,
28
29                                            -v.-                          10-4406-cv (Lead)
30                                                                          10-4444-cv (Con)

                *
               Judge Miriam Goldman Cedarbaum, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1   HR TEXTRON, INC., a wholly owned subsidiary of TEXTRON,
 2   INC.,
 3
 4               Defendant-Counter-Claimant-Appellee,
 5
 6   SIKORSKY AIRCRAFT CORPORATION, INC., HELICOPTER SUPPORT,
 7   INC., COPTERLINE OY, PLASMA TECH INC.,
 8
 9                       Defendants-Appellees.
10
11
12   FOR APPELLANT:    MICHAEL P. VERNA, Bowles & Verna, LLP,
13                     Walnut Creek, CA (Gerald C. Sterns,
14                     Sterns & Walker, Oakland, CA, on the
15                     brief), for Plaintiffs-Appellants Ulla
16                     Christine Frederiksson, et al.
17
18   FOR APPELLEE:     CATHERINE SLAVIN, Cozen O’Connor,
19                     Philadelphia, PA, for Appellee HR
20                     Textron, Inc.
21
22                     David M.S. Shaiken, David Shaiken LLC,
23                     Vernon, CT, for Appellee Plasma Tech.
24                     Inc.
25
26                     James W. Hunt, Alice Chan, Fitzpatrick &
27                     Hunt, Tucker, Collier, Pagano, Aubert
28                     LLP, New York, NY, for Appellees Sikorsky
29                     Aircraft Corp. & Helicopter Support, Inc.
30
31
32        Appeal from the United States District Court for the
33   District of Connecticut (Eginton, J.)
34
35       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

36   AND DECREED that the judgment of the United States District

37   Court for the District of Connecticut be VACATED AND

38   REMANDED.

39       Plaintiffs-Appellants appeal from the September 28,

40   2010 and October 8, 2010 orders of the district court

                                  2
1    (Eginton, J.) granting Appellees’ motion to dismiss on the

2    ground of forum non conveniens.   We assume the parties’

3    familiarity with the underlying facts, procedural history,

4    and issues on appeal.

5        We review a district court’s decision to dismiss on

6    forum non conveniens grounds for clear abuse of discretion.

7    Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.

8    2001) (en banc).   “A district court abuses its discretion

9    when it rests its decision on a clearly erroneous finding of

10   fact or makes an error of law.”   Citigroup Global Mkts.,

11   Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d

12   30, 34 (2d Cir. 2010) (quoting Almontaser v. N.Y.C. Dep’t of

13   Educ., 519 F.3d 505, 508 (2d Cir. 2008)).   Abuse of

14   discretion is also shown when a district court “applies the

15   incorrect legal standard.”   Otokoyama Co. Ltd. v. Wine of

16   Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999); see

17   also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107 (2d

18   Cir. 2000).

19       Our circuit’s precedent dictates a three-step analysis

20   to determine whether dismissal for forum non conveniens is

21   appropriate.

22       At step one, a court determines the degree of
23       deference properly accorded the plaintiff’s choice
24       of forum. At step two, it considers whether the


                                   3
1        alternative forum proposed by the defendants is
2        adequate to adjudicate the parties’ dispute.
3        Finally, at step three, a court balances the
4        private and public interests implicated in the
5        choice of forum.
6

7    Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146,

8    153 (2d Cir. 2005) (internal citations omitted).

9        When conducting the first step of this analysis to

10   determine the appropriate level of deference accorded to a

11   plaintiff’s choice of forum, a court may consider several

12   factors: (1) whether the plaintiff is a U. S. citizen; (2)

13   convenience of the plaintiff’s residence in relation to the

14   chosen forum; (3) availability of witnesses or other

15   evidence to the forum; (4) defendant’s amenability to suit

16   in the forum; (5) availability of appropriate legal

17   assistance; and (6) evidence of forum shopping to be subject

18   to favorable law.   Iragorri, 274 F.3d at 71-72.     These

19   factors, however, imply a temporal framework.      That is, they

20   must be analyzed in reference to a distinct point in time:

21   for step-one purposes, that point is the time at which the

22   complaint was filed.   See id. at 75.

23       In this case, however, in conducting its step-one

24   analysis, the court erroneously examined facts that arose or

25   came to light long after the complaint was filed.      For

26   example, the court relied on the Final Accident Report to

                                   4
1    conclude that Appellants ignored the significance of the

2    evidence in Finland.     But the Final Accident Report was not

3    released until August 2008, well after Appellants filed

4    their complaint.   Similarly, the court considered Appellees’

5    stipulations that they would provide evidence for trial in

6    Finland.1   But just as a defendant’s representation that it

7    will submit to jurisdiction in the foreign venue is

8    irrelevant to the first prong of the analysis because

9    plaintiffs cannot anticipate that defendants will so

10   stipulate, see Norex Petroleum, 416 F.3d at 156, a

11   defendant’s post-complaint stipulation to provide evidence

12   in a foreign forum is irrelevant to the step-one analysis

13   because plaintiffs cannot anticipate such a stipulation when

14   they file a complaint.

15        By erroneously relying on post-complaint facts to grant

16   only “some deference” to Appellants’ choice of forum, the

17   district court applied an incorrect legal standard and

18   abused its discretion.     We also observe that when an

19   American defendant claims that a foreign forum is more

20   convenient than a home forum, some suspicion of forum

21   shopping must arise.     We therefore remand to allow the court


          1
            There is no evidence in this record that without
     Defendants’ subsequent consent to personal jurisdiction that
     Defendants could have been sued in Finland.

                                     5
1    to apply the correct legal standard, but we leave open the

2    possibility that the court may make the same decision to

3    dismiss after doing so.   See id. at 155-57.

4        In addition to applying an incorrect legal standard in

5    the step-one analysis, we question the court’s step-three

6    analysis as it relates to the Copterline settlement,

7    especially in light of the fact that Appellees had the

8    burden of demonstrating that the public and private interest

9    factors weighed in favor of adjudication in the Finnish

10   forum.   See Aguinda v. Texaco, Inc., 303 F.3d 470, 476 (2d

11   2002).   It would be premature in light of the remand to

12   determine if the balance of public and private interest

13   factors necessarily weighed against Appellees.   However, on

14   remand, the district court should explicitly analyze the

15   effect of the Copterline settlement by explaining the

16   application of factors outlined in Gulf Oil Corp. v.

17   Gilbert, 330 U.S. 501, 508-09 (1947), superceded by statute

18   on other grounds.

19       The court did not fully consider the Copterline

20   settlement based on its apparent reliance on Piper Aircraft

21   Co. for the proposition that dismissal is proper where,

22   among other things, defendants would be unable to implead a

23   foreign third-party defendant (in this case, Copterline).


                                   6
1    See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259 (1981).

2    Here, because the settlement agreement would prevent

3    Appellees from impleading Copterline in any forum, including

4    Finland, this factor of Piper Aircraft is inapplicable, and

5    the court’s reliance on it is therefore questionable.         The

6    inability to implead Copterline further affects the balance

7    of public interest factors in that it eliminates any

8    potential Finnish defendants.       Yet the court failed to

9    explicitly consider this distinction between the instant

10   case and Piper Aircraft.

11       Finally, the magistrate judge’s report, which has been

12   adopted by the district court, appears to have been guided

13   heavily by another District of Connecticut forum non

14   conveniens opinion.   See Melgares v. Sikorsky Aircraft Co.,

15   613 F. Supp. 2d 231 (D. Conn. 2009).       The court’s dismissal

16   in Melgares relied in part on the inability of the court to

17   exercise personal jurisdiction over potential third-party

18   defendants to the suit.    The magistrate judge’s report and

19   recommendation here similarly pointed to the unavailability

20   of process in the United States over Copterline and its

21   employees, apparently overlooking the fact that the

22   Copterline settlement prevents Copterline’s impleader

23   regardless of issues of personal jurisdiction.


                                     7
1        These factual errors combined with the court’s

2    erroneous reliance on post-complaint facts to determine the

3    level of deference due to Appellants’ choice of forum

4    convince us that the district court abused its discretion in

5    dismissing the case.   We make no finding, however, as to

6    whether the court’s ultimate conclusion that dismissal for

7    forum non conveniens is correct.   Rather, we remand to the

8    district court with instructions to consider the deference

9    owed to Appellants’ choice of forum using only those facts

10   known at the time of pleading and to conduct the remainder

11   of the analysis in light of the Copterline settlement

12   agreement.

13       For the foregoing reasons, the judgment of the district

14   court is hereby VACATED AND REMANDED.

15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




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