NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SERPIL CAN, as the surviving wife of RAMAZAN CAN, deceased, for herself and on behalf of all surviving beneficiaries of RAMAZAN CAN, deceased; AYSEGUL KARADAG, as the surviving wife of OSMAN KARADAG, deceased, for herself and on behalf of all surviving beneficiaries of OSMAN KARADAG, deceased; and FATMA VURUCU, as the surviving wife of ADEM VURUCU, deceased, for herself and on behalf of all surviving beneficiaries of ADEM VURUCO, deceased, Plaintiffs/Appellants, v. MD HELICOPTERS, INC., an Arizona corporation, Defendant/Appellee. 1 CA-CV 10-0367 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CV 2008-016953 The Honorable Larry Grant, Judge AFFIRMED Begam, Lewis & Marks, P.A. By Richard P. Traulsen Phoenix
and Nolan Law Group By Thomas P. Routh Attorneys for Plaintiffs-Appellants Gust Rosenfeld P.L.C. By Charles W. Wirken James Marbuger Morrison & Foerster, L.L.P. By William D. Janicki Attorneys for Defendants/Appellees Chicago Phoenix San Diego H A L L, Judge 1 Serpil Can, Aysegul Karadag, and Fatma Virucu (collectively, appellants, residents and citizens of the Republic of Turkey (Turkey, appeal from the trial court s ruling dismissing their lawsuit against MD Helicopters, Inc. (MD Helicopters on grounds of forum non conveniens. For the reasons discussed below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 2 The following relevant facts are undisputed. In October 2004, MD Helicopters, whose principal facilities are located in Mesa, Arizona, delivered a helicopter to Turkey to be used by the Turkish National Police (TNP. After delivering the helicopter, MD Helicopters continued to provide customer support to TNP and trained TNP personnel in Arizona on piloting and maintaining the aircraft. On July 19, 2006, while being operated by TNP personnel in Turkey, the helicopter crashed into 2
the ground, causing the deaths of everyone on board, including appellants spouses. 3 On July 18, 2008, appellants filed a wrongful death complaint against MD Helicopters alleging claims of product defect, negligence, and breach of warranty. In October 2008, MD Helicopters filed a motion to dismiss the complaint on grounds of collateral estoppel because the Indiana state court had recently dismissed a parallel lawsuit filed by appellants against manufacturers of the helicopter s component parts (Goodrich and Rolls-Royce based on the doctrine of forum non conveniens. Indeed, MD Helicopters noted that the Indiana court ordered appellants to file their claims in Turkey. After hearing oral argument on the issue, the trial court held that it is not required to give full faith and credit to that portion of the Indiana court s ruling ordering that the Plaintiffs file their action in the Republic of Turkey and denied MD Helicopter s motion to dismiss. 4 On June 29, 2009, MD Helicopters filed another motion to dismiss for forum non conveniens arguing that Arizona has almost no connection to this lawsuit and that the accident wreckage, aircraft records, and accident witnesses are all believed to be located in Turkey in the custody of the TNP. MD Helicopters further asserted that Turkey is an available and adequate forum and noted that it is already defending claims 3
stemming from the helicopter crash in Turkey. Finally, MD Helicopters attached a stipulation to its motion to dismiss stating that it would submit to the personal jurisdiction of the Turkish civil court and waive any statute of limitations defense it could otherwise assert. It also attached a signed affidavit of a practicing Turkish attorney who avowed that, under Turkish law, a defendant can waive the applicable statute of limitations. 5 In their August 3, 2009 response to the motion to dismiss, appellants asserted that their case has significant ties to Arizona, most notably, that the helicopter was manufactured in Arizona and the pilot of the aircraft was trained at an MD Helicopters facility in Arizona approximately one month before the crash. Appellants further argued that, absent evidence they had brought the action in Arizona to vex, harass, or annoy MD Helicopters, the court should defer to their forum preference. Finally, appellants claimed that most of the documentary evidence and witnesses they need to prove their product liability case are located either in Arizona or in the United States. 6 The trial court held oral argument on this issue on August 26, 2009. At the outset of the hearing, counsel for MD Helicopters noted that the parties did not dispute that Turkey is an available and adequate alternative forum; rather, the 4
parties disputed whether Arizona is a convenient forum. MD Helicopters argued that the public and private factors to be considered in evaluating whether Arizona is a convenient forum weigh in favor of a finding that Arizona is an inconvenient forum, namely, that: (1 the accident occurred in Turkey; (2 all of the passengers were Turkish; (3 all of the eyewitnesses are Turkish; (4 most of the wreckage remains in Turkey; (5 over fifty Turkish government personnel investigated the accident; and (6 numerous relevant documents, such as maintenance records and pilot logs, are located in Turkey. In addition, MD Helicopters argued that Turkish law would govern the case, which would require the translation of the applicable code and common law and the expertise of Turkish lawyers. MD Helicopters also asserted that defending claims arising out of the helicopter accident in both the United States and Turkey would be unduly burdensome and that all of the litigation should be joined in Turkey. Finally, MD Helicopters noted that the Arizona court would have no jurisdiction to compel the testimony of Turkish witnesses, but it had already stipulated to submitting to the jurisdiction of the Turkish court. 7 In response, appellants countered that Arizona law, not Turkish law, would govern the case. Appellants also claimed that the Turkish court would have no jurisdiction over Goodrich and Rolls-Royce, the manufacturers of some of the helicopters 5
component parts, which would impede their ability to present their case. Before the trial court took the matter under advisement, however, MD Helicopters noted that Goodrich and Rolls-Royce had likewise entered a stipulation to submit to the Turkish court before the lawsuit in Indiana was dismissed. 8 On October 22, 2009, the trial court dismissed the appellants lawsuit based on forum non conveniens, finding that (1 Turkey is an available and adequate alternative forum; (2 appellants choice of a foreign forum is not assumed reasonable and is therefore entitled to little deference; (3 the crash site and eyewitnesses are located in Turkey and MD Helicopters has stipulated to submit to the jurisdiction of Turkey; (4 many of the documents and transcripts relevant to the litigation are written in Turkish and would require translation if the matter were litigated in Arizona; and (5 parallel litigation is currently pending in Turkey and [d]uplication of effort is not an effective use and administration of justice. 1 9 Appellants timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S. section 12-2101(B (2003. 1 Subsequent to the trial court s ruling in this case, the United States District Court in Connecticut dismissed appellants parallel litigation against Goodrich based on the preclusive effect of the Indiana court s forum non conveniens determination, but also independently finding forum non conveniens as well. Can v. Goodrich Pump & Engine Control Sys., Inc., 711 F.Supp.2d 241 (D. Conn. 2010. 6
DISCUSSION 10 As their sole issue on appeal, appellants contend that the trial court erred by dismissing their lawsuit on grounds of forum non conveniens. They argue that the overwhelming weight of private and public interest factors favor Arizona as a convenient forum. 11 Because a decision on forum non conveniens requires a weighing of imponderables, we will not overturn the trial court s ruling on the application of forum non conveniens absent an abuse of discretion. Parra v. Continental Tire N. Am., Inc., 222 Ariz. 212, 214-15, 8, 213 P.3d 361, 363-64 (App. 2009 (internal quotation omitted. Indeed, when the trial court has considered all relevant public and private interest factors, and its balancing of those factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981. 12 As a preliminary matter, a court must consider the extent of deference that should be accorded the plaintiff s choice of forum. See Piper Aircraft Co., 454 U.S. at 255. Generally, there is a strong presumption in favor of a plaintiff s choice of forum, which may be overcome only when the private or public interest factors clearly point towards trial in the alternative forum. Id. When the plaintiff is foreign, however, this assumption is much less reasonable. 7
Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff s choice deserves less deference. Id. at 256. 2 13 In this case, appellants are citizens of Turkey and their choice of forum therefore warrants less deference. Nonetheless, MD Helicopters, as the party seeking dismissal on grounds of forum non conveniens, bears the burden of demonstrating that: (1 there is an available and alternative forum to hear the case, and (2 on balance, the alternative forum is a more convenient place to litigate the case. Parra, 222 Ariz. at 215, 10-11, 213 P.3d at 364. 14 Generally, the requirement of an adequate and available alternative forum is satisfied when the defendant is amenable to process in the other jurisdiction. Piper Aircraft, 454 U.S. at 254 n.22 (internal quotation omitted. Only [i]n rare circumstances, such as when the alternative forum will not permit litigation of the subject matter of the dispute, will an alternative forum be deemed inadequate. Id. In the trial court, the parties did not dispute that Turkey was an available and adequate alternative forum. Thus, to the extent appellants 2 Contrary to appellants claim in their opening brief, a trial court need not find that an action is oppressive or vexatious to dismiss it on grounds of forum non conveniens. As explained in Parra, that is not the test to be applied in ruling on a forum non conveniens motion in Arizona. 222 Ariz. at 215 n.3, 213 P.3d at 364 n.3. 8
argue on appeal that Turkey s statute of limitations bars their filing a claim there, we note that this argument and the supporting evidence attached to appellants opening brief were not presented to the trial court and we therefore do not consider it. N. Ariz. Gas Serv., Inc. v. Petrolane Transp., Inc., 145 Ariz. 467, 472, 702 P.2d 696, 701 (App. 1984 (explaining appellate court review is limited to the evidence before the trial court when a ruling on a motion was decided. 15 The second prong of the forum non conveniens analysis requires the court to balance private and public reasons of convenience. Parra, 222 Ariz. at 215, 10, 213 P.3d at 364. The factors of private interest the court should consider include: (1 the relative ease of access to sources of proof, (2 the availability of compulsory process for attendance of unwilling, and the cost of obtaining the attendance of unwilling witnesses, (3 the possibility to view the premises, and (4 all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. at 215, 12, 213 P.3d at 364 (internal quotation omitted. 16 Here, the record supports the trial court s finding that critical evidence relating to the investigation and analysis of the helicopter wreckage as well as technical support, pilot training, and maintenance records are located in the United States and under MD Helicopters control. On the 9
other hand, the record also reflects that the eyewitnesses to the crash and numerous Turkish investigation reports are located in Turkey. Thus, as to access to sources of proof, whether the matter is litigated in Turkey or Arizona, significant witness testimony and other evidence will need to be translated. Balancing this factor with the other private interest factors, including the location of the accident and eyewitnesses, and MD Helicopters stipulation to submit to Turkey s jurisdiction, the private factors preponderate in favor of a finding that Arizona is not a convenient forum. 17 Next, the court should consider public interest factors, including: (1 the local interest of the lawsuit, (2 the court s familiarity with the relevant law, (3 the burden on the local courts and juries, (4 court congestion, and (5 the costs involved in resolving the dispute. Parra, 222 Ariz. at 217, 20, 213 P.3d at 366. 18 In this case, the record reflects that the helicopter at issue was owned by the TNP, the crash occurred in Turkey, and all of the victims on board were Turkish citizens or residents. Under these circumstances, Turkey has a substantial connection and interest in the case. In contrast, Arizona s connection to the matter is much weaker. Although the trial court did not expressly determine whether Turkish law would govern the case, given Turkey s relatively strong relationship to the case, its 10
law would most likely govern. See Garcia v. Gen. Motors Corp., 195 Ariz. 510, 516, 20, 990 P.2d 1069, 1075 (App. 1999 ( Which forum s law applies to a particular issue depends on which forum has the most significant relationship to the issue. ; see also Restatement (Second of Conflicts of Law 175 ( In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship... in which event the local law of the other state will be applied.. Requiring the trial court to interpret and apply Turkish law would present a substantial burden on the court. Moreover, MD Helicopters is currently defending another case stemming from this crash in Turkey and, even accepting appellants argument that the matters could not be consolidated, all of the relevant evidence produced in that matter would need to be translated into English should the matter proceed in Arizona. Thus, on balance, the public interest factors weigh heavily in favor of finding Arizona is not a convenient forum. Therefore, the trial court did not abuse its discretion in dismissing appellants case on grounds of forum non conveniens. 11
CONCLUSION 19 For the foregoing reasons, we affirm the trial court s dismissal of appellants case. CONCURRING: /s/ PHILIP HALL, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge /s/ JON W. THOMPSON, Judge 12