729 F.2d 641
United States Court of Appeals,
Ninth Circuit.
Erin Rayne OLSEN, a Minor by
Patty SHELDON, Maternal Grandmother and Guardianad Litem,
Plaintiffs-Appellants,
v.
GOVERNMENT OF MEXICO,
Defendant-Appellee.
Ursula Baines SANCHEZ, By and
Through her Guardians ad Litem Joseph J. CERNIEand Sally Z. Cernie,
Plaintiffs-Appellants,
v.
The REPUBLIC OF MEXICO, a Foreign
Government, Defendant-Appellee.
Nos. 83-5626, 83-5629.
Argued and Submitted Oct. 6,
1983.
Decided March 30, 1984.
As amended July 16, 1984.
Children brought suit for wrongful death of their parents
who, as prisoners of Mexican government, were being transferred to authorities
for incarceration in United States pursuant to Prisoner Exchange Treaty between
United States and Mexico, when plane crashed in California while attempting to
land at Tijuana airport. The
United States District Court for the Southern District of California, J.
Lawrence Irving, J., dismissed claims, and plaintiffs appealed. The Court of
Appeals, Nelson, Circuit Judge, held that: (1) Mexico was not immune under
Foreign Sovereign Immunities Act and there was subject matter jurisdiction, and
(2) personal jurisdiction was consistent with due process requirements.
Reversed and remanded.
*643 Donald S.
White, Bonnie Pastor, Maupin, Cutler, Teplinsky & White, Los Angeles, Cal.,
for Olsen.
Mark S.
Hennings, Shield & Smith, Los Angeles, Cal., for Sanchez.
Christopher J.
Schatz, Ramon Castro, Jack Sleeth, Sheela, Lightner & Castro, San Diego,
Cal., for defendant-appellee.
Appeal from the
United States District Court for the Southern District of California.
Before FLETCHER and NELSON, Circuit Judges, and HARDY, [FN*]
District Judge.
FN* Honorable Charles L. Hardy, United States District Judge
for the District of Arizona, sitting by designation.
NELSON, Circuit Judge:
Erin Olsen and Ursula Sanchez appeal from the dismissal of
their wrongful death claims for lack of personal jurisdiction. The district
court held that general contacts between the defendant and the forum state
provided no basis for jurisdiction. Additionally, the court concluded that
personal jurisdiction based on defendant's forum-related activities would be
unreasonable and thus violative of due process requirements.
On appeal, the Government of Mexico ("Mexico")
also challenges subject matter jurisdiction under the Foreign Sovereign
Immunities Act of 1976, Pub.L. No. 94-583, 90 Stat. 2891-98, 28 U.S.C. ¤¤ 1330,
1332(a)(2), (4), 1391(f), 1441(d), 1602-1611 (1980) [hereinafter cited as the
FSIA].
We find that both subject matter jurisdiction and personal
jurisdiction exist and therefore reverse.
FACTS
Appellants Olsen and Sanchez, United States citizens
domiciled in California, are minor children claiming the wrongful death of
their parents. As prisoners of the Mexican government, the parents of
appellants were to be transferred to authorities for incarceration in the
United States pursuant to the Prisoner Exchange Treaty between the United
States and Mexico.
On the night of October 27, 1979, a twin-propeller plane
owned and operated by the Mexican government carrying guards, pilots and
appellants' parents departed Monterrey, Mexico for Tijuana, where the transfer
was to take place. En route, the pilots, employees of the Mexican Department of
Justice, learned of thick fog and diminishing visibility at their destination.
They requested an instrument landing which, at Tijuana Airport, requires the
airplane to enter United States airspace so it can approach the runway from the
west. Following procedures established by a Letter of Agreement between
aviation authorities of the United
States and Mexico, Tijuana air control sought and received permission for the
airplane to cross the border. In addition to providing access to United States
airspace during hazardous weather conditions, the Letter also allows for
coordinated navigational assistance.
Because its radar and instrument landing navigational system
were inoperative, Tijuana air control asked its counterpart in San Diego to
radio direction headings, altitude and location data necessary for an
instrument landing to the aircraft. Unfortunately, *644 neither the San Diego air controllers
nor the pilots were bilingual. Instead, the San Diego air controllers relayed
the information via the telephone "hotline" to Tijuana air control
who radioed their translation to the pilots.
In this manner, the aircraft penetrated almost 12 miles into
United States airspace, made a wide turn and began to descend toward Tijuana
Airport. Having strayed one mile off the proper course, the pilot abandoned the
approach at the border and re-entered Mexican airspace.
San Diego air control advised the pilot to proceed to other
airports where visual landings would be possible. The pilot declined and
decided to attempt another instrument landing. With the continued use of
navigational data from San Diego air control, the airplane re-entered United
States airspace. The pilots aligned the aircraft with the proper compass
heading and descended on course, but failed to maintain the proper altitude.
After striking a telephone pole,
the airplane crashed three-quarters of a mile inside the United States, killing
all on board. The crash site was two and one-half miles from the beginning of the
runway.
DISCUSSION
The FSIA sets forth criteria which must be satisfied to
establish both statutory subject matter jurisdiction and personal jurisdiction.
The FSIA confers subject matter jurisdiction upon district courts in nonjury
civil actions where the foreign state is not entitled to immunity as defined by
its substantive provisions, 28 U.S.C. ¤ 1330(a) (1976). Personal jurisdiction
is established whenever subject matter jurisdiction exists and service of
process has been made in accord with section 1608 of the FSIA. 28 U.S.C. ¤ 1330(b) (1976). Thus, both
forms of jurisdiction turn on whether the foreign state is entitled to
sovereign immunity. If the dispute does not come within one of the exceptions
to sovereign immunity explicitly provided by sections 1605-1607, the district
court lacks both subject matter jurisdiction and personal jurisdiction.
I. Subject Matter Jurisdiction
As section 1330(a) indicates, sovereign immunity is not
merely a defense under the FSIA. It absence is a jurisdictional
requirement. See Verlinden, B.V.
v. Central Bank of Nigeria, 103 S.Ct. 1962, 1971 n. 20, 76 L.Ed.2d 81 (1983)
("Verlinden"). We begin our inquiry, therefore, by considering
whether Mexico is entitle to immunity.
The FSIA grants blanket immunity to foreign states, 28
U.S.C. ¤ 1604, and then carves out specific exceptions to immunity in sections
1605 to 1607. Appellants allege that their wrongful death claims come within
the so-called "noncommercial torts" exception, section 1605(a)(5),
which provides:
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in any case--
* * * (5) not otherwise encompassed in paragraph (2) above,
[the commercial activity exception] in which money damages are sought against a
foreign state for personal injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious act or omission of
that foreign state or of any official or employee of that foreign state while
acting within the scope of his office or employment;
28 U.S.C. ¤ 1605(a)(5) (1982).
Mexico argues that section 1605(a)(5) does not apply and it
is therefore immune from suit. First, Mexico contends that Congress, in
enacting the FSIA, adopted the restrictive theory of sovereign immunity and
that Mexico's conduct was of the *645
public nature held to be immune under that theory. Second, Mexico
asserts that the 1605(a)(5) exception to immunity requires all the acts or omissions constituting the tort to
occur within the United States. Finally, Mexico characterizes its activities
which led to the crash as discretionary functions, thus falling within the
exception to jurisdiction set forth in section 1605(a)(5)(A). We consider these
arguments in turn.
A. The FSIA and the Restrictive Theory of Sovereign Immunity.
It is clear that the FSIA, for the most part, codifies the
restrictive principle of sovereign immunity. See Verlinden, 103 S.Ct. at 1968. Under this principle, the
immunity of a foreign state is "restricted" to suits involving that
state's public acts (jure imperii) and does not extend to suits based on its
private or commercial acts (jure qestionis). McKell v. Islamic Republic of Iran, 722 F.2d 582, 587 n. 6
(9th Cir. 1983).
Mexico argues that this public/private distinction applies
not only to the FSIA generally, but specifically to section 1605(a)(5), the
noncommercial torts exception to immunity. According to Mexico's
interpretation, foreign states would be immune from jurisdiction for those
torts which otherwise come within the bounds of section 1065(a)(5) but which
are public in nature.
Section 1605(a)(5) cannot be read, however, other than in
conjunction with section 1605(a)(5)(A), which exempts from the reach of section
1605(a)(5) those torts committed in a foreign state's discretionary capacity. 28 U.S.C. ¤ 1605(a)(5)(A) (1982).
Discretionary functions, as discussed below, include those acts or decisions
made at the policy-making or
planning level of government. Those torts involving acts or omissions of
a fundamentally governmental nature are not actionable. Thus, despite section
1605(a)(5) a foreign state remains largely immunized from torts committed in
its governmental capacity. Mexico's position, that governmental acts are
automatically read out of section 1605(a)(5), would render section
1605(a)(5)(A) superfluous. Its argument is therefore untenable.
B. The Location of the Tortious Conduct.
Section 1605(a)(5) requires the injury complained of to
occur in the United States. [FN1] The provision does not indicate that the
conduct causing the tort must also take place in the United States. Ordinarily,
this would end our inquiry and there would be no need to consider the location
of the tortious conduct. Where, as in the instant case, the injuries occurred
in the United States, and all other requirements of section 1605(a)(5) are met,
the foreign state would not be immune. However, the legislative history to
section 1605(a)(5) indicates that "the tortious act or omission must occur
within the jurisdiction of the United States...." House Report at 21, U.S.Code Cong.
& Admin. News 1976, p. 6619.
FN1. Section 1605(a)(5) specifies that foreign states are
not immune from jurisdiction in any case in which money damages are sought
"for personal injury or death, or damage to or loss of property, occurring
in the United States and caused by the tortious act or omission of that foreign
state ..." 28 U.S.C. ¤
1605(a)(5) (1982).
A careful reading of the record in this case suggests that
many potentially tortious acts and omissions occurring both in Mexico and the
United States caused the crash. Pilot error, the absence of operational radar
and navigational aids at Tijuana airport, defective aircraft instruments, the
decision to forego a visual landing at another airport, inaccurate data from
San *646 Diego air control, and
other factors may have contributed causally to the accident.
Mexico, relying on Matter of SEDCO, 543 F.Supp. 561, 567
(S.D.Tex.1982) ( SEDCO ), contends that section 1605(a)(5) must be construed to
require all of the tortious conduct to occur in the United States before a
foreign state will be denied immunity. In SEDCO, an exploratory off-shore well
operated by Pemex, the Mexican national oil company, exploded in Mexican
waters. The resulting oil slick washed up on the shores of Texas. Citizens
there sued Pemex and other parties under section 1605(a)(5). Citing that
section's legislative history requiring the tortious act or omission to occur
within the United States, the court held that for the noncommercial tort
exception to apply, "the tort, in whole, must occur in the United
States." SEDCO, 543 F.Supp. at 567. [FN2] Thus, Mexico argues, because
some allegedly tortious acts or omissions took place outside the United
States--such as the maintenance of the aircraft and the inoperative radar at
Tijuana airport--Mexico should be immune.
FN2. See also Perez v. The Bahamas, 652 F.2d 186, 188-89
(D.C.Cir.), cert. denied, 454 U.S. 865, 102 S.Ct. 326, 70 L.Ed.2d 166
(1981). Perez is distinguishable
from this case because both the tortious conduct and injury occurred outside
the United States.
The instant case is distinguishable from SEDCO in one
crucial respect. In SEDCO, none of the alleged acts or omissions, only the
resultant injury, occurred in the United States. [FN3] By requiring every
aspect of the tortious conduct to occur in the United States, a rule such as in
SEDCO would encourage foreign states to allege that some tortious conduct
occurred outside the United States. The foreign state would thus be able to
establish immunity and diminish the rights of injured persons seeking recovery.
Such a result contradicts the purpose of the FSIA, which is to "serve the
interests of justice and ... protect the rights of both foreign states and
litigants in United States courts."
28 U.S.C. ¤ 1602. The FSIA requires us to protect the rights of
plaintiffs while respecting the sovereignty of foreign states. Consequently, we
hold that if plaintiffs allege at least one entire tort occurring in the United States, they
may claim under section 1605(a)(5). In this case, appellants allege conduct
constituting a single tort--the negligent piloting of the aircraft--which
occurred in the United States. We are satisfied that appellants have alleged
sufficient conduct occurring in the United States to bring this case within the
noncommercial torts exception as expressed in section 1605(a)(5) and its
legislative history.
FN3. See also Persinger v. Islamic Republic of Iran, 729
F.2d 835 (D.C.Cir. 1984) (distinguishable on same grounds).
C. The Discretionary Function Exception.
Section 1605(a)(5)(A) provides an exception to noncommercial
tort jurisdiction for claims based upon a state's discretionary function.
[FN4] Mexico
seeks to bring the airplane crash within this exception by contending that the
conduct which led to the crash was discretionary.
FN4. Section 1605(a)(5) does not apply to:
(A) any claim based upon the exercise or performance or the
failure to exercise or perform a discretionary function regardless of whether
discretion be abused.
28 U.S.C. ¤ 1605(a)(5)(A) (1982).
The FSIA provides considerable guidance as to which acts or
decisions constitute discretionary functions. Not only does the language of the
FSIA discretionary function exception replicate that of the Federal Tort Claims
Act (FTCA), 28 U.S.C. ¤ 2680(a), but the legislative history of the FSIA, in
explaining section 1605(a)(5)(A), directs us to the FTCA. House Report at 21. To determine the
scope of the discretionary function exception of the FSIA, we *647 therefore turn to the interpretation
given the similar FTCA provision. [FN5]
FN5. The Federal Tort Claims Act does not apply to:
(a) Any claim
... based upon the exercise or performance or failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee
of the Government, whether or not the discretion involved be abused.
28 U.S.C. ¤ 2680(a) (1982).
The seminal case defining the scope of the discretionary
function exception within the context of the FTCA, Dalehite v. United States, 346
U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), held "discretion" to
mean:
"more than the initiation of programs and activities.
It also includes determinations made by executives or administrators in
establishing plans, specifications or schedules of operations. Where there is
room for policy judgment and decision there is discretion."
Id. at 35-36, 73 S.Ct. at 968. In so defining discretion,
the Court adhered to the legislative purpose behind the exception: to allow
government executives to make policy decisions in an atmosphere free of concern
over possible litigation. Id. at
32, 73 S.Ct. at 966.
Over the years, the definition of discretion has been
refined and qualified somewhat.
See Driscoll v. United States, 525 F.2d 136, 138 (9th Cir.1975). This
circuit employs a test which distinguishes between the "planning
level" of governmental activity and those acts designed to carry out
policy, the "operational level." Thompson v. United States, 592 F.2d 1104, 1111 (9th
Cir.1979). Because decisions at the planning level establish governmental
policy, they are not actionable. But where decisions occur at the operational
level, the discretionary function exemption provides no protection from
liability even though such decisions or acts may involve elements of
discretion. Lindgren v. United
States, 665 F.2d 978, 980 (9th Cir.1982);
see also Thompson, 592 F.2d at 1111; Driscoll, 525 F.2d at 138. In addition to examining the
level at which the conduct occurred, we also consider two other factors which
are particularly important when determining the immunity of foreign states: The
ability of United States courts to evaluate the act or omission of the state,
and the potential impairing effect such an evaluation would have on the
effective administration of the state's government. Lindgren, 665 F.2d at 980; Driscoll, 525 F.2d at 138.
We conclude that of those alleged acts or omissions on the
part of Mexico which contributed to the accident, none was discretionary.
First, while Mexico's decision to enter into the Prisoner Exchange Treaty with
the United States or to transfer these particular prisoners to United States
custody might well be deemed discretionary, those decisions are not implicated
in the instant action. Rather, appellants allege that Mexico negligently
maintained, directed and piloted the aircraft. Such conduct represents measures
taken to implement the broader policy or plan to exchange prisoners. The acts
or omissions in question involved the transportation of prisoners, an act
remote from the policy decision to transfer them. While the pilot and air
controllers had considerable discretion in carrying out their assigned tasks,
see Lindgren, 665 F.2d at 980;
Thompson, 592 F.2d at 1111;
Driscoll, 525 F.2d at 138, it is clear they acted on the operational
level, far from the centers of policy judgment. See also Ingham v. Eastern Air Lines, Inc., 373 F.2d 227,
238 (2d Cir.1967) (air controller's failure to comply with regulations occurred
at operational level); United Air
Lines, Inc. v. Wiener, 335 F.2d 379, 396 (9th Cir.1964); Eastern Air Lines v.
Union Trust *648 Co., 221 F.2d 62, 78 (D.C. Cir.1955) (control tower operators
act at operational level).
Second, this dispute does not raise questions of policy
decisions of Mexico, only issues of historical fact and tort liability.
Therefore, the trial court can readily evaluate the allegedly tortious acts as
it is well suited to the task of determining facts and applying the relevant
law.
Third, we see nothing which suggests that denying immunity
will impair the effectiveness of Mexico's penal or aviation authorities. A
trial on the merits will call for the testimony of individuals involved in the
accident, primarily Mexican air traffic control personnel. There seems little
doubt that the air traffic authorities and other relevant governmental entities
can function without diminished efficacy while their employees testify in
discovery or court proceedings.
In conclusion, the claims asserted by appellants fall within
the exception to immunity for noncommercial torts as provided by section
1605(a)(5) of the FSIA. Additionally, the conduct of Mexican personnel which
may have led to the crash occurred at the operational level and was not
discretionary. Thus, Mexico is not immune under the FSIA and subject matter
jurisdiction exists.
II. Personal Jurisdiction
Personal jurisdiction over a foreign state exists in any
case where the foreign state is not entitled to immunity under the FSIA and
service has been made in
accordance with the statute's requirements. 28 U.S.C. ¤ 1330(b) (1982). There has been no assertion that
service did not comply with the statute, but we must still consider whether the
exercise of personal jurisdiction exceeds the constitutional limits imposed by
the due process clause. Because California's long-arm statute extends the
state's jurisdiction to the very limits of due process under the federal
constitution, we examine personal jurisdiction in light of due process as
defined by the United States Supreme Court. Thomas P. Gonzalez Corp. v. Consejo Nacional de Produccion
de Costa Rica, 614 F.2d 1247, 1250 (9th Cir.1980), (quoting Threlkeld v.
Tucker, 496 F.2d 1101, 1103 (9th Cir.1974)), cert. denied, 419 U.S. 1023, 95
S.Ct. 499, 42 L.Ed.2d 297 (1974). As stated in International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), due process
requirements are met only if the defendant has sufficient minimum contacts with
the forum "such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.' " Id. at 316, 66 S.Ct. at 158.
In our circuit, the defendant's contacts with the forum
state are analyzed in two ways. If the non-resident defendant's activities
within a state are "substantial" or "continuous and
systematic," there is a sufficient relationship between the defendant and
forum to support jurisdiction even if the cause of action is unrelated to the
defendant's forum-related
activities. Perkins v.
Benguet Consolidated Mining Co., 342 U.S. 437, 446- 48, 72 S.Ct. 413, 418-19,
96 L.Ed. 485 (1952); Data Disc,
Inc., v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir.1977).
If, however, the defendant's activities are not so pervasive as to subject the
defendant to general jurisdiction, personal jurisdiction turns on the nature
and quality of the defendant's contacts relating specifically to the cause of
action. Data Disc, 557 F.2d at
1287. To find limited jurisdiction based on the defendant's forum-related activities,
we require (1) the non-resident defendant to perform some act by which he
purposefully avails himself of the benefits and protections of the forum's
laws; (2) the plaintiff's claim to arise out of or result from the *649 defendant's forum-related activities,
and; (3) the exercise of jurisdiction to be reasonable. Raffaele v. Compagnie Generale
Maritime, 707 F.2d 395, 397 (9th Cir.1983); Data Disc, 557 F.2d at 1287. Because we find sufficient
contacts to justify limited jurisdiction, it is unnecessary to consider whether
general jurisdiction exists.
The first two requirements of the Data Disc minimum contacts
analysis are easily satisfied. In order to land during hazardous weather
conditions, the pilot of the aircraft sought and received permission to enter
United States airspace pursuant to procedures negotiated for precisely those
circumstances. While receiving navigational assistance from San Diego air
control, the pilot twice intentionally entered United States airspace. In
so doing, Mexico purposefully
availed itself of the benefits of operating its aircraft over California. In
addition, the claims of appellants arise from the plane's flight and crash in
California.
Jurisdiction is reasonable where "under the totality of
the circumstances the defendant could reasonably anticipate being called upon
to present a defense in a distant forum." Taubler v. Giraud, 655 F.2d 991, 993 (9th Cir.1981); World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). While there is no
mechanical or quantitative test for determining the reasonableness of
jurisdiction, at least seven factors are relevant. Insurance Co. of North America v. Marina Salina Cruz, 649
F.2d 1266, 1270 (9th Cir.1981) [hereinafter cited as I.N.A.]. To determine
reasonableness, we consider the relative significance of each factor and
balance them all. Id. at 1273. We
apply these factors below and conclude that personal jurisdiction over Mexico
is reasonable.
A. Extent of Purposeful Interjection.
The extent of Mexico's purposeful interjection into
California was substantial. The pilots intentionally entered United States
airspace with the approval of Tijuana air control in order to make an
instrument landing. While the decision to enter was made under exigent
circumstances, the flight over California was neither accidental nor
fortuitous. The pilot and Tijuana air control followed detailed procedures
agreed to by Mexico and set forth in the
Letter of Agreement in anticipation of weather conditions necessitating
instrument landings. Furthermore, after the second missed approach, the pilot
rejected a suggestion to land the aircraft at alternate airports in favor of
another instrument approach over San Diego.
B. Burden of Defending.
While a primary concern in assessing the reasonableness of
jurisdiction is the burden on the defendant, it is not dispositive and is to be
considered in light of other relevant factors; World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. Raffaele, 707 F.2d at 398.
Undoubtedly, litigating abroad imposes significant
inconveniences upon the party appearing in a foreign country. Transportation of
witnesses, attorneys and physical evidence presents problems of logistics and
expense, as does the need to translate testimony and documents. However, these
inconveniences are minimized in the instant case. The physical evidence,
including the wreckage and crash site, is located in San Diego. Other evidence,
such as National Transportation Safety Board (NTSB) reports and the testimony
of San Diego air traffic controllers and NTSB investigators, is in English and
is available in San Diego as well. Additionally, advances in international
transportation and communication facilities have diminished many of the burdens
of litigating in a foreign nation.
See *650 Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2
L.Ed.2d 1283 (1958); See Raffaele, 707 F.2d at 398; Important Mexican witnesses, such as the Tijuana
air traffic controllers, are located just across the border and are readily
accessible via modern transportation and communication links. Litigating the
instant case in San Diego is far less burdensome to the defendant than much of
the interstate litigation routinely pursued in the United States. Indeed, the
burden on Mexico to defend in San Diego is as small as any foreign defendant
may be expected to bear. Compare
Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 .2d 1355, 1359 (9th Cir.1983);
Raffaele, 707 F.2d at 398; N.A.,
649 F.2d at 1271-72.
C. Conflict with Mexico's Sovereignty.
Mexico argues that its sovereignty raises a barrier to the
reasonableness of jurisdiction. As was recognized in I.N.A., the reasonableness
of jurisdiction depends to some extent on the potential affront to the
sovereignty of defendant's state.
I.N.A., 649 F.2d at 1272. While a defendant's sovereignty may weigh
against allowing jurisdiction, that effect is minimal here. By denying immunity
to foreign states defending certain claims, the FSIA reflects the modern
realities of the interdependence of nations. Because personal jurisdiction
turns on a determination of immunity, the FSIA represents Congress' decision
that jurisdiction does not pose an affront to the sovereignty of the defending
nation so serious as to preclude it. Thus, while we are respectful of Mexico's
sovereignty, we find that in the present case it does not weigh heavily against
the reasonableness of jurisdiction.
D. Interests of Forum State.
California has strong interests in protecting its residents
from injury and in furnishing a forum where their injuries may be
remedied. Raffaele, 707 F.2d at
398. It has a special interest in exercising jurisdiction over those who have
committed tortious acts within its boundaries. By subjecting the tortfeasor to
liability for damages which are the proximate result of the tort, California
acts to deter wrongful conduct affecting those within the state. Data Disc, 557 F.2d at 1288.
In addition, California also has an interest in ensuring
that its citizens are fully compensated for their injuries. Such an interest is
important both to ensure that injured individuals recover for their losses and
to protect the state's economic resources from unnecessary expenditures.
Finally, the forum state's interest in protecting the welfare of its minor
residents is unquestionably important.
Kulko v. California Superior Court, 436 U.S. 84, 98, 98 S.Ct. 1690,
1700, 56 L.Ed.2d 132 (1978).
E. Most Efficient Resolution.
District court in San Diego would be the most efficient
judicial forum. A court sitting in the district where the injury occurred and
where the evidence is located ordinarily will be the most efficient forum. Raffaele, 707 F.2d at 399. As discussed
above, San Diego will most likely be the richest source of physical evidence,
witnesses and documents.
The district court is required to apply California's choice
of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct.
1020, 1021, 85 L.Ed. 1477 (1941). If Mexican law should apply, that would
admittedly have a negative effect on the efficiency of proceeding in the United
States. I.N.A., 649 F.2d at 1273.
However, we cannot tell from the briefs or record whether a true conflict of
law exists. Mexico has not shown how its law conflicts with relevant California
law or why its law should be applied. In any event, we are confident that a
court in California can be trusted to apply properly the law of a foreign
*651 state. Thus, choice of law
considerations are not a major impediment to the efficient resolution of this
dispute.
F. Convenient and Effective Relief for Plaintiffs.
Undoubtedly, a California court affords appellants the most
convenient and effective site for judicial relief. Not only is important
evidence present in the United States, but concerns for appellants' personal
comfort and convenience argue in favor of a United States forum. As this court
observed in Raffaele, "Individual claimants 'would be at a severe
disadvantage if they were forced to follow the ... [defendant] to a distant
state in order to hold it legally accountable. When claims were small or
moderate individual claimants frequently could not afford the cost of bringing
an action in a foreign forum--thus in effect making the company judgment
proof.' " Raffaele, 707 F.2d
at 399 (quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78
S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)). Access to a California court is
important to appellants for obtaining relief.
Finally, appellants' likelihood of enforcing a judgment
against Mexico also bears on the effectiveness of a California court as a forum
for resolving the dispute. I.N.A.,
649 F.2d at 1273. Mexico is not immune to jurisdiction and thus enforcement of
a judgment is not barred. Mexico has not shown how a judgment against it is
unenforceable and thus we cannot conclude that such enforcement is so unlikely
as to weigh against the reasonableness of jurisdiction.
G. Availability of an Alternate Forum.
Appellants recognize that Mexico affords an alternative
forum but argue that it is, for practical purposes, unavailable. While the
practicality of the alternative forum must be considered, see Hedrick, 715 F.2d at 1359; Raffaele,
707 F.2d at 399; Appellants must carry the burden of proving the unavailability
of an alternative forum. I.N.A.,
649 F.2d at 1273. Appellants allude to a severe maximum limit on wrongful death
recoveries, see Hurtado v. Superior Court, 11 Cal.3d 574, 578-79, 114 Cal.Rptr.
106, 108, 522 P.2d 666, 668 (1974), but offer no proof of applicable Mexican
law to substantiate their allegation. Because appellants fail to carry their
burden of proof, we cannot conclude that they are left without an alternative
forum.
After considering all the relevant factors, we conclude
that, on balance, it would be reasonable for a California court to exercise
jurisdiction over Mexico and thus, personal jurisdiction is consistent with due
process requirements.
REVERSED AND REMANDED.
History
(Showing 5 of 5 documents)
Direct History
KeyCited Citation:
Olsen by Sheldon v. Government of Mexico, 729 F.2d 641 (9th
Cir.(Cal.) Mar 30, 1984) (NO. 83-5626, 83-5629)
Certiorari Denied by
United Mexican States v. Olsen by Sheldon, 469 U.S. 917, 105
S.Ct. 295, 83 L.Ed.2d 230 (U.S.Cal. Oct 15, 1984) (NO. 84-295)
Negative Indirect History (U.S.A.)
Abrogation Recognized by
Joseph v. Office of Consulate General of Nigeria, 830 F.2d
1018 (9th Cir.(Cal.) Oct 19, 1987) (NO. 86-2630, 86-2707) HN: 5 (F.2d)
Declined to Extend by
Alicog v. Kingdom of Saudi Arabia, 860 F.Supp. 379 (S.D.Tex.
Aug 10, 1994) (NO. CIV. A. H-93-4169)
Distinguished by
Meadows v. Dominican Republic, 628 F.Supp. 599 (N.D.Cal. Feb
05, 1986) (NO. C-80-4626-WWS)
HN: 9 (F.2d)