United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, CHIEF JUDGE
Dordieski alleges that she suffered a horrible injury at the
hands of agents of Austrian Airlines when they broke her leg
by forcibly stuffing her into an airplane seat when the leg
was rigid and unbendable due to spina bifida. Ms.
Dordieski lives in Crown Point, Indiana. Austrian Airlines is
incorporated in Austria and conducts substantial and
continuous business within the United States, including in
Indiana and Illinois. The injury occurred in Canada. The
airline has moved to dismiss the action on forum non
start with the facts as they are detailed in the second
amended complaint which I will accept as true at this point.
Dordieski is an adult who suffers from spina bifida,
as a result of which her right leg is deformed and has always
been outstretched and rigid since birth. Mary is confined to
a wheelchair and incapable of any self- support. Mary’s
mother and caregiver Svetlana Dordieski purchased airline
tickets for herself and Mary for an Austrian Airlines flight
leaving Chicago, Illinois and bound for Vienna with a final
destination of Skopje, Macedonia. To accommodate Mary’s
disability, Svetlana purchased two tickets in the bulkhead
section of the plane - a section that provides more space for
and Svetlana boarded the flight without incident. But on the
way to Austria, the airplane encountered mechanical
difficulties and made an emergency landing in Toronto,
Canada. The passengers were transported to a Toronto hotel
and asked to return to the airport the following day to
complete the trip. Mary and Svetlana returned to the airport
the next morning to continue their adventure.
new flight leaving Toronto, Austrian Airlines did not assign
Mary and Svetlana the same seats in the bulkhead section.
Instead, the airline issued them boarding passes for regular
seats that did not accommodate Mary’s disability. This
posed a problem given Mary’s condition. Svetlana
protested that Mary could not be seated in the newly assigned
seat given the deformity of her leg. Mary claims that,
despite her protests, the airline’s employees or agents
forced Mary’s outstretched leg into the inadequate
space, causing it to break.
undisputed that Mary’s claims for damages are governed
by the Convention for the Unification of Certain Rules for
International Carriage by Air, known as the Montreal
Convention. It is also undisputed that Article 33 of the
Convention governs where plaintiffs can bring claims. The
Montreal Convention states that an action for damages
“must be brought, at the option of the plaintiff, in
the territory of one of the States Parties, either before the
court of the domicile of the carrier or of its principal
place of business, or where it has a place of business
through which the contract has been made or before the court
at the place of destination.” Convention for the
Unification of Certain Rules for International Carriage by
Air, Art. 33, ¶1 (May 28, 1999), S. Treaty Doc. No.
106-45 at 27, 2242 U.N.T.S. 350. Paragraph 2 of Article 33
also identifies a fifth jurisdiction, applicable only for
passenger death or injury claims, permitting an action to be
brought “in the territory of a State Party in which at
the time of the accident the passenger has his or her
principal and permanent residence and to or from which the
carrier operates services for the carriage of passengers by
air....” Id. at ¶2. It is this latter
provision that authorizes Dordieski to bring her claim in
this court because she lives here in the Northern District of
Airlines moves to dismiss Mary’s complaint based on
forum non conveniens. The doctrine of forum non
conveniens applies equally to claims under the Montreal
Convention brought in U.S. courts as it does to cases brought
in U.S. courts under U.S. laws. See, e.g., In re
Caribbean Airways, S.A., 619 F.Supp.2d 1299, 1316-17
(S.D. Fla. 2007), aff’d sub nom. Pierre-Louis v.
Newyac Corp., 584 F.3d 1052 (11th Cir. 2009).
Dismissal under forum non conveniens is appropriate
if: (1) there is an adequate alternative forum in which the
case can be tried, and (2) the relevant private and public
interests favor dismissal. See Fischer v. Magyar
Allamvasutak Zrt., 777 F.3d 847 (7th Cir.
2015); see also Kamel v. Hill-Rom Co., Inc., 108
F.3d 799, 802 (7th Cir. 1997). Austrian Airlines
argues that Canada is adequate alternative forum and that the
private and public interests favor dismissal.
first issue is whether the motion to dismiss is untimely, as
it was filed more than three months after the
airline filed its answer to the second amended complaint. It
is true that Rule 12(b) provides a list of defenses requiring
motions to be “made before pleading if a responsive
pleading is allowed, ” and dismissal on forum non
conveniens grounds is a species of the defense of
improper venue, which appears as Rule 12(b)(3) in the list.
Deb v. SIRVA, Inc., __F.3d __, 2016 WL 4245497, *2
(7th Cir. Aug. 11, 2016) (“Subsumed within
this last category [improper venue] were the common law
principles of forum non conveniens and abstention.”).
Rule 12(b) also says that “[n]o defense or objection is
waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion.”
This reluctance to find waiver is underscored in Rule
12(h)(1)(B), which provides that a party waives a defense
listed in Rule 12(b)(2)-(5) by failing to either assert the
defense by motion or to include it in a responsive pleading.
In this case, the airline’s forum non
conveniens challenge was clearly articulated in its
answer and, in particular, in its second affirmative defense.
Here’s what the airline said in that responsive filing:
“This action should be dismissed for the convenience of
the parties and/or witnesses and in the interests of
justice.” [DE 69 at 22.] What’s more, in response
to Dordieski’s venue allegations, the airline answered
that it lacked knowledge or information sufficient to form a
belief as to the truth or falsity of the allegations, and so
denied them. [Id. at 3.] In the face of these timely
challenges to Dordieski’s venue selection in the
airline’s answer, and in view of the airline’s
earlier assertion of a forum non conveniens motion
in response to each of Dordieski’s two previous
pleadings [DE 14, DE 37], I am not persuaded that the timing
of the current motion can be viewed as a waiver.
it’s on to the forum non conveniens
determination. Here’s the broad outline of the doctrine
as explained by the Supreme Court:
A federal court has discretion to dismiss a case on the
ground of forum non conveniens when an alternative forum has
jurisdiction to hear the case, and trial in the chosen forum
would establish oppressiveness and vexation to a defendant
out of all proportion to plaintiff’s convenience, or
the chosen forum [is] inappropriate because of considerations
affecting the court’s own administrative and legal
Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 429 (2007) (internal citations
omitted). As the Seventh Circuit reminded us a couple weeks
ago, a plaintiff’s choice of forum should seldom be
disturbed, unless the balance of convenience falls strongly
in defendant’s favor. Deb, 2016 WL 4245497,
*2, citing Gulf Oil v. Gilbert, 330 U.S 501, 504
(1947). A dismissal under the doctrine of forum non
conveniens is characterized as an “exceptional
one” that should be used “sparingly.”
Id. It is for this reason that defendants who invoke
forum non conveniens bear a heavy burden,
particularly when the plaintiff’s choice is his home
forum. Id. at *3. The defendant’s heavy burden
takes into consideration the fact that granting such a motion
usually launches a plaintiff into a foreign court and the
logistical hassles that come with it.
Seventh Circuit breaks down an adequate alternative forum
into a “two-part inquiry: availability and
adequacy.” Kamel, 108 F.3d at 802.
Availability is when “all parties are amenable
to process and are within the forum’s
jurisdiction.” Stroitelstvo Bulgaria Ltd. v.
Bulgarian-American Enterprise Fund, 589 F.3d 417, 419
(7th Cir. 2009). Adequacy requires that a
forum provide the plaintiff with a “fair hearing to
obtain some remedy for the alleged wrong.” Id.
indicated, Article 33 of the Montreal Convention governs
where the plaintiff can bring her claims. Article 33
identifies five forums that ...