“Catching and Killing” Suits Against Boeing
October 5, 2022
A recent decision by the Northern District of Illinois (Judge Franklin Valderrama) exemplifies the phenomenon that TLB advisor Zach Clopton has termed catch and kill jurisdiction: when federal courts stretch to take cases from state courts only to dismiss them on procedural grounds that the state courts would not have applied. In Wragge v. Boeing, Boeing first used “snap removal” to remove the case from Illinois state court to federal court. It then convinced the federal court to dismiss the case for forum non conveniens even though numerous Illinois state court judges had rejected similar motions brought by Boeing in similar cases. The expansive application of federal power to kill off non-federal claims that the state courts are perfectly happy to hear raises serious federalism concerns.
Catching: “Snap Removal”
Two Australian pilots, Kieren Wragge and David Beard, sued Boeing for design defects, arguing that Boeing’s “bleed air” system exposed them to toxic fumes during flights in Australia. They filed suit against Boeing in Cook County, Illinois, where Boeing maintains its global headquarters. Before they could serve Boeing with the complaint, however, Boeing removed the case to federal court on the basis of diversity jurisdiction.
The removal statute (28 U.S.C. § 1441) prevents a defendant from removing a case on the basis of diversity jurisdiction if the defendant is sued in its home state courts. This “forum defendant rule” has a loophole, however, that well-resourced defendants like Boeing have successfully exploited. Section 1441(b)(2) provides that “A civil action otherwise removable solely on the basis of [diversity] jurisdiction . . . may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Because Boeing filed a notice of removal before it was served, it argued the forum defendant rule does not apply—a procedural maneuver known as “snap removal.”
As Judge Valderrama noted in an earlier decision, the propriety of snap removal has split the lower courts, including judges within the Northern District of Illinois. Pointing to the plain language of the statute, he agreed with Boeing that the forum defendant rule did not prevent removal of this suit. He tried to reassure the plaintiffs, however, that “it is not as if allowing forum defendants to remove diversity cases deprives plaintiffs of a forum to hold defendants accountable for allegedly dangerous processes.” Then came Boeing’s motion to dismiss for forum non conveniens.
Killing: The Federal Doctrine of Forum Non Conveniens
In opposing Boeing’s motion to dismiss for forum non conveniens, the plaintiffs emphasized that Illinois state courts have repeatedly rejected similar efforts by Boeing to dismiss suits brought by foreign plaintiffs regarding airplane accidents outside the United States. In orders appended to the plaintiffs’ response, Cook County judges reasoned that no single forum would be convenient when plaintiffs, defendants, witnesses, and documents are scattered across the globe; that modern technology makes it easy to transport documents; that Illinois has a public interest in resolving cases brought against corporations based in Illinois; and that Illinois courts “are competent to … apply foreign law if necessary.”
These decisions indicate that an Illinois state court might well have refused to dismiss this case for forum non conveniens. Further, Ill. Sup. Ct. R. 187(a) requires forum non conveniens motions to be filed within 90 days of the last day allowed for filing the moving party’s answer. Boeing filed its motion to dismiss fifteen months after removing the case to federal court and seven months after the district court refused to remand it.
The federal district court, however, saw things differently. In weighing the private and public interest factors, it credited Boeing’s position that necessary evidence and witnesses were in Australia and may be difficult or expensive to bring to Illinois. While the court acknowledged the plaintiffs’ argument that they would have the same problem in reverse, it relied on Boeing’s promise to “[m]ake available” its evidence and witnesses to the extent ordered by the Australian courts—a rather minimal commitment. And it rejected the plaintiffs’ point about technology easing logistical difficulties solely because they had “fail[ed] to cite to any federal authority holding that the Court should afford this factor less weight in the modern age.”
While I disagree with the court’s outdated approach to the private interest factors, its analysis of the public interest factors is more problematic. First, it cited to docket congestion in the Northern District as a reason to dismiss the suit. If the Northern District is too congested to hear cases against Illinois defendants, then it shouldn’t have stretched to take such a case from the state courts. In response to the likely retort that the court was compelled to keep the case because of the plain language of 28 U.S.C. § 1441, I would point out that Congress’s concern for docket congestion is precisely why it included the forum defendant rule as a limit on removal—a purpose that should have informed the district court’s interpretation of § 1441(b)(2).
As for the local interest in the case, the district court asserted that “Australia’s interest in protecting the health of its citizens outweighs Illinois’ interest in the case based on the location of Boeing’s corporate headquarters.” Although half a dozen recent Illinois state court decisions have concluded the exact opposite, the federal court dismissed these decisions as merely “Illinois state authority.” Perhaps, however, state courts are better positioned than the federal courts to identify what is in fact in the state’s interests.
Finally, the district court reasoned that the applicability of Australian law weighed in favor of dismissal as well. Although the court acknowledged that the application of foreign law is not a sufficient reason by itself for dismissing a case, it worried about having to “delve into the tenets of an unfamiliar legal system.” One has to wonder, if Australian law is too hard for a U.S. judge to figure out, then what foreign law could we ever expect a U.S. court to apply? Further, as the plaintiffs pointed out, the state and federal courts in Illinois are already hearing toxic fume cases against Boeing just like this one. Again, without a hint of irony, the district court waived away this argument because “all but one of the cases cited by plaintiffs is or was litigated in Illinois state courts, with only one having been pending in the Northern District of Illinois.” If the expertise in such cases is in the state courts, perhaps this case belongs there as well.
Erie and Forum Non Conveniens
In sum, it seems almost certain that if this case had remained in state court, it would not have been dismissed—at least at this late stage—for forum non conveniens. That difference in outcome, however, is not due to any real difference in the test for forum non conveniens: Illinois has largely adopted the federal doctrine of forum non conveniens, applying the same reduced deference to the forum choice of non-U.S. plaintiffs and weighing the same set of private and public interest factors. Instead, the difference in likely outcome reflects more subtle distinctions in how state versus federal courts apply these factors (as well as Illinois’ stricter time limit on raising such motions).
But in other states, there are real differences between the state and federal doctrines of forum non conveniens, as Bill Dodge, Chris Whytock and I have recently documented (and as I previously summarized for TLB readers). For example, state courts in Colorado, Louisiana, South Carolina, Virginia, and Texas cannot use forum non conveniens to dismiss cases when the plaintiff is an in-state resident, while those in Oregon and Washington do not discount foreign plaintiffs’ choice of a U.S. forum. Delaware—where Boeing is incorporated—has a higher bar for dismissal where, like here, there is no litigation already pending in another court, but it also doesn’t require an available and adequate alternative forum. Overall, we found that 17 states have forum non conveniens doctrines that meaningfully differ from the federal doctrine.
The district court in Wragge flagged the Erie question of whether federal courts should apply state doctrines of forum non conveniens to non-federal claims and noted that no binding precedent answers it. Based solely on the conclusion reached by “the majority of courts that have addressed the issue,” the court asserted that forum non conveniens is a procedural matter that doesn’t implicate substantive rules of decision, thus permitting application of the federal doctrine of forum non conveniens. I have elsewhere critiqued such use of non-binding authority to “count noses” without any independent analysis. The Erie question is not an easy one: in states like Louisiana and Virginia, for example, the use of the federal doctrine can be outcome determinative, and it is not obvious what overriding federal interest requires uniform treatment of private tort disputes.
Nonetheless, the Erie question is moot in a state like Illinois that does follow the federal doctrine (and where state courts not infrequently rely on federal precedent in applying it). But the district court inexplicably asserted that the Illinois state cases provided by the plaintiffs “are inconsistent with federal precedent,” thereby obviating any reason to consider them. The Illinois state courts were applying the same test as the federal courts; the decisions are “inconsistent” with federal precedent only to the extent that they assessed the factors in a way that did not favor dismissal.
Corporate Litigation Strategies
As civil procedure professors like to say, procedure is power. Boeing monitors the court dockets in Cook County to facilitate snap removal. In prior cases, this gambit has failed, with other Northern District judges remanding transnational suits against Boeing back to the state court. (In one of these cases, Vivas v. Boeing, the state court later rejected Boeing’s motion to dismiss for forum non conveniens.)
This time Boeing got lucky and drew a federal judge willing to tolerate snap removal. It then waited to move to dismiss for forum non conveniens for many more months, by which time the plaintiffs had produced documents supporting their damages calculations and made an offer of settlement. As the plaintiffs argued to the federal court, Boeing’s delay caused them to rack up significant legal fees only to have to start over fresh in a different country, presumably with different lawyers. Make no mistake: it is extremely unlikely at this point that the plaintiffs will be able to do so. Not only did Boeing play this procedure game well, but it generated federal caselaw along the way that will make it easier for federal courts to “catch and kill” future transnational tort cases brought against it in its home courts—even when state courts in that same jurisdiction stand ready to hear them.