Judge: Ronald F. Frank, Case: 23TRCV01792, Date: 2023-08-23 Tentative Ruling
Case Number: 23TRCV01792 Hearing Date: September 28, 2023 Dept: 8
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HEARING DATE: August 23, 2023¿¿
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CASE NUMBER: 23TRCV01792
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CASE NAME: Mahdi A. M. Zougub, et al. v. Robinson Helicopter
Company, et al.
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MOVING PARTY: (1)
Plaintiffs on the Letter Rogatory; Defendants on the Forum Non Motion
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RESPONDING PARTY: (1) None on the Letters Rogatory, and Plaintiffs on the Forum
Non Motion
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TRIAL DATE: Not
Set.
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Tentative Rulings: (1) Plaintiff’s Motion for Letters Rogatory
to New Zealand High Court to Issue Subpoena for Helicopter Inspection is GRANTED. California-based counsel and experts ought to
have easier access to inspect, test, measure and analyze the damaged parts in California. The Court
will inquire of counsel as to steps intended to be taken to secure the components
and ensure access in the US to all parties.
(2)
Defendants Robinson Helicopter Company’s and Weldon Pump, LLC’s Motion to Stay
or Dismiss for Forum Non Conveniens, and Parker Hannifin’s Joinder in the Forum
Non Motion, are tentatively GRANTED. The
Court will take oral argument on the application of New Zealand law to this dispute,
including Plaintiffs’ contention that New Zealand is not a suitable forum at all
because one of the four plaintiffs could not recover for loss of consortium in
a New Zealand court but could recover under California’s more liberal law if
that law would apply to this case. The Court
will also take oral argument as to the factors it considered in the balancing
of private and public interests. The
Court tentatively finds that the balance tilts in favor of a New Zealand forum
for a catastrophic helicopter crash that occurred in New Zealand that is
alleged to have caused injuries to four New Zealand-domiciled Plaintiffs, where
all the named defendants including specially appearing Defendant Avco have stipulated
to jurisdiction, venue, witness availability, waiver or tolling agreement on the
statute of limitations, and other aspects of litigating in New Zealand courts.
I. BACKGROUND¿¿
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A. Factual¿¿
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This case is
based on a helicopter accident that occurred in New Zealand. Plaintiffs now
file this Motion for Letters
Rogatory to New Zealand High Court to Issue Subpoena for Helicopter Inspection, enabling California-based counsel and
US-based experts to study, test, and analyze the damaged helicopter parts in the
US rather than in New Zealand.
B. Procedural¿¿
On August 1, 2023, Plaintiff filed the Motion
for Letters Rogatory to New Zealand High Court to Issue Subpoena for Helicopter
Inspection. No opposition has been filed. On August 23, 2023, this Motion was originally
on calendar, but continued. Subsequently, the parties stipulated to continue
this motion to September 28, 2023.
On August 16, 2023, Defendant Robinson
Helicopter Company filed a Motion to Stay or Dismiss Action for Forum Non
Conveniens. On August 17, Defendant, Weldon Pump, LLC also filed a Motion to
Stay or Dismiss for Forum Non Conveniens. On August 18, Parker Hannifin joined
in the Forum Non Motion. On September
14, 2023, Plaintiffs filed an opposition. On September 18, 2023, Specially
Appearing Defendant AVCO Corporation joined Defendant Robinson Helicopter
Company, Inc.’s Motion to Stay or Dismiss Action for Forum Non Conveniens. On
September 20, 2023, Robinson Helicopter Company, Inc. filed a reply brief.
Subsequently, on September 20, Defendant, Weldon Pump, LLC also joined in reply
of Plaintiff’s opposition.
¿II. REQUEST FOR JUDICIAL NOTICE
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In
filing their moving papers, Plaintiffs have requested this Court take judicial
notice of the following:
1.
Decision by New Zealand High Court: Republic of
Kazakhstan v Mega (2016) NZHC 963 issuing New Zealand subpoena pursuant to
letter of request from U.S. District Court for Southern District of New York in
Case 1:15-cv-01900-ER-HB].
Pursuant to
Evidence Code § 310, this Court GRANTS Plaintiffs’ request and takes judicial
notice of the above.
III. EVIDENTIARY OBJECTIONS
Plaintiffs’ objections to
Defendants’ Evidence Offered on Reply is overruled. In the Court’s view, these declarations do
not offer any materially new information that was not presented in the moving
papers, and merely supplement the fact that all Defendants (except the one
defendant challenging personal jurisdiction) have consented to jurisdiction in
New Zealand and are willing to waive statute of limitations issues that may
arise were this matter transferred to and tried in New Zealand.
IV. ANALYSIS¿
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A.
Letters
Rogatory
Legal Standard
Code
of Civil Procedure section 2027.010(e) provides:
“On
motion of the party seeking to take an oral deposition in a foreign nation, the
court in which the action is pending shall issue a commission, letters
rogatory, or a letter of request, if it determines that one is necessary or
convenient. The commission, letters rogatory, or letter of request
may include any terms and directions that are just and appropriate. The
deposition officer may be designated by name or by descriptive title in the
deposition notice and in the commission. Letters rogatory or a letter of
request may be addressed: “To the Appropriate Judicial Authority in [name of
foreign nation].” ”
(emphasis
added.)
New Zealand is not a signatory to
the Hague Evidence Convention, but New Zealand will participate in discovery if
a Letter Rogatory is issued by a US Court. The New Zealand High Court reviews a
foreign letters rogatory on comity grounds, recognized as a basis of customary
international law even in the absence of a bilateral or multi-lateral treaty.
New Zealand’s Evidence Act of 2006 contains provisions relating to evidence to
be used in civil proceedings overseas, i.e., sections 184 to 187 containing the
relevant procedure. Here, Plaintiffs rely on sections 184 and
185, which note:
184
Application to High Court for assistance in obtaining evidence for civil
proceedings in another court
The
High Court or a Judge may exercise the powers conferred by section 185(1) if an
application is made to the High Court or a Judge for an order for evidence to
be obtained in New Zealand and the court or Judge is satisfied- (a) that the
application is made to implement a request issued by or on behalf of a
requesting court; and (b) that any requirements prescribed in rules or
regulations made under section 200 as to the form of the application and the
manner in which it must be made are satisfied; and (c) that the evidence to
which the application relates is to be obtained for the purposes of civil
proceedings which either have been instituted before the requesting court or
whose institution before that court is contemplated.
185
Power of High Court to give effect to application for assistance
(1)
If this section applies, the High Court or a Judge may- (a) order that any
provision for the taking of evidence in New Zealand that the High Court or the
Judge considers appropriate for giving effect to the request to which the
application relates, be made: (b) include in that order a requirement for any
specified person to do any specified thing that the High Court or the Judge
considers appropriate for that purpose. (2) An order under subsection (1) may
include, without limitation, provision- ( a) for the examination of witnesses,
either orally or in writing at any agreed time or at any specified time and
place: (b) for the production of documents: (c) for the inspection,
photographing, preservation, custody, or detention of any property: (bold added)
. . .
The
Court also notes that in determining whether to exercise power under Section
185, a New Zealand court will leave a determination of relevance to the
requesting overseas court. (See Republic of Kazakhstan v Mega [2016]
NZHC 1898 at [42].) New Zealand courts will
attempt to balance the legitimate requirements of the foreign court against the
burden placed on the intended witness. (Republic of Kazakhstan v Mega [2016]
NZHC 1898, at [45].) Additionally, the principle of comity will be important,
but the court will seek to protect intended witnesses from any oppressive
request. (Ibid.) Lastly, requests will only be approved to the extent
that they relate to evidence that could be compelled in a civil proceeding in
New Zealand. (Section 186) The procedure cannot be used to facilitate an
investigatory inquiry or equivalent to general discovery. (See Republic
of Kazakhstan v Mega [2016] NZHC 1898 at [47].)
Discussion
Here, Plaintiffs attached a copy of
the Letter of Request as Exhibit A. Plaintiffs’ letter seeks inspection of the
wreckage of the Robinson R44 helicopter and its competent parts: R44 II model
helicopter (Registration No. ZK-HVX); Lycoming IO-540 model engine;
Parker-Hannifin pressure relief valve, Part No. D321-1; Weldon Pump auxiliary
fuel pump. The Court understands the allegations in the Complaint and makes the
factual finding that the discovery appears reasonably necessary and relevant to
the prosecution and defense of the pending lawsuit. Plaintiff contends that
both comity and the interests of New Zealand would be furthered as four New
Zealand citizens were severely injured in a helicopter crash, in New Zealand,
by a helicopter allegedly designed and manufactured in Torrance, California as
well as an engine allegedly designed and manufactured in Pennsylvania. These
facts, taken with the fact that California courts have a strong interest in
addressing severe personal injury claims arising from product liability design
and manufacture claims claimed to have arisen in part in Los Angeles County weighs
into the comity analysis.
Further, this Court notes that
pursuant to New Zealand’s Evidence Act of 2006 section 186, the evidence
sought appears highly relevant as trial evidence, whether the trial takes place
in Alabama, Pennsylvania, Texas, California, or New Zealand. Plaintiff’s Complaint alleges that the
helicopter crash was due to the failure of the helicopter and its component
parts. Plaintiff notes that the inspection of the wreckage and component parts
would determine if the failure occurred in the helicopter or its component
parts and can be shown to the jury at trial and explained by expert witnesses who
can more readily measure, test, and analyze the damaged components in a US lab
than in New Zealand. It appears from the Plaintiffs’ request that the
helicopter components, once transported to the United States, will be made
available to counsel and experts for any and all parties, having considerable
transportation costs and enabling more ready expert access on multiple occasions
than would be economically feasible fi the components remained in New
Zealand. The Court agrees that such
evidence is necessary to Plaintiffs’ case, and that because Plaintiff is only
requesting specific component parts, and is paying shipping and transportation
costs for the items to be sent, that this request will not place an undue
burden on New Zealand. Because this satisfies New Zealand’s Evidence Act of
2006, the Court GRANTS Plaintiff’s motion and will issue the Letters Rogatory
to the New Zealand court for processing.
The Court will inquire of counsel as
to steps intended to be taken to secure the components, to prevent damage or deterioration
in transit, the intended location for storage of the components in the United States,
and plan for allowing reasonable access by a party, counsel and experts
including maintenance of a visitor log to document when and by who the damaged
components are subject to inspection.
B.
Defendants’
Motion to Stay or Dismiss for Forum Non Conceniens
Legal Standard
“When a court upon motion of a party or its own motion
finds that in the interest of substantial justice an action should be heard in
a forum outside this state, the court shall stay or dismiss the action in whole
or in part on any conditions that may be just.” (Code Civ. Proc., § 410.30,
subd. (a).) “In applying the traditional forum non conveniens analysis, the
trial court must engage in a two-step process, on which the defendant bears the
burden of proof. (Stangvik v. Shiley Inc. (1991)
54 Cal.3d 744, 751; Chong v. Superior Court (1997) 58 Cal.App.4th 1032
1037- 1038; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.) In
the first step, the court must determine whether a suitable alternative forum
exists. (Stangvik, supra, 54 Cal.3d at p. 751.) "If the court finds that a
suitable alternative forum exists, it must then balance the private interests
of the litigants and the interests of the public in retaining the action in
California.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193
Cal.App.4th 466, 472.) The trial court’s balancing is given substantial
deference on appeal. (Chong, supra, 58 Cal.App.4th at p. 1038.)
Discussion
Suitable Alternative
Defendants’
motions and Joinder argues that New Zealand is a suitable alternative forum.
Defendants note New Zealand is a member state of the Commonwealth nations, and
that Courts have previously held that members of the Commonwealth, such as New
Zealand, provide a suitable forum for resolving products liability suits where
the defendant is subject to, or stipulates to, process in the jurisdiction. (Ministry
of Health, Providence of Ontario, Canada v. Shiley Inc. (C.D. Cal. 1994)
858 F.Supp 1426, 1441.) Here, Defendants note that New Zealand has a suitable
alternative remedy for Plaintiffs under New Zealand’s Accident Compensation
Act, 2001. Defendants also cite to Lueck v. Sundstrand Corp. (9th Cir.
2001) 236 F.3d 1137, 1142, where the Court of Appeal held that New Zealand
provided an adequate alternative forum, even though its administrative accident
compensation system barred an identical suit, and affirmed the dismissal on a
forum non conveniens grounds.
Robinson supported it motion with the declaration of New
Zealand barrister and solicitor, John Miller, who confirms the Accident
Compensation legislation which governed the Plaintiffs’ case in the Lueck
litigation was an earlier version of the present Accident Compensation Act, but
only differs from the one in Lueck in that it reintroduced lump sums for
permanent impairment instead of the quarterly payments. Robinson also notes that all of the other
Defendants have agreed to submit to jurisdiction of New Zealand and have also
agreed to toll any statute of limitation that might be available in New
Zealand. Lastly, Robinson contends that though it bears the burden of proving
an adequate alternative forum exists, where the plaintiff is foreign, the
assumption that the plaintiff’s choice of forum is convenient is given less
weight. (citing Leuck, 236 F.3d at 1143; Piper Aircraft Company v.
Reyno (1981) 454 U.S. 235, 255; see Judicial Council Comment on Code
Civ. Proc., § 410.30.)
In opposition, Plaintiffs argue that not all defendants
have submitted to jurisdiction in New Zealand nor have all of them waived the
statute of limitations. However, the Court finds Plaintiffs’ argument on this point
to be incorrect. All defendants including specially appearing defendant Avco
have stipulated in writing that they will not object to jurisdiction in New
Zealand, will make witnesses available in New Zealand, and will waive statute
of limitations defenses if the case were transferred to New Zealand on forum
non grounds. Avco has a pending motion
to quash service on it in this action. Next,
Plaintiffs also argue that the alternative forum must provide all plaintiffs
with a remedy, however, Plaintiffs argue that New Zealand’s system does not
allow a person to bring proceedings in a New Zealand court for compensatory damages
arising directly or indirectly out of personal injury. Plaintiffs even note
that Defendants have admitted that recovery for a loss of consortium measure of
damages was outlawed in New Zealand. As such, Plaintiff contends that Plaintiff
Eric Jordan cannot bring his claim for loss of consortium in New Zealand, which
means it does not offer him a remedy at all. Defendants argue that there is an
alternative cause of action for Eric Jordan to bring in New Zealand, “Nervous
Shock.” However, Plaintiff argues that in order for him to bring such a claim,
he would have to have suffered “psychiatric illness from witnessing or hearing
his wife’s accident” akin to California’s bystander restriction on emotional
distress damages claimed by a plaintiff who was not a direct victim of the subject
incident. (See, e.g., Thing v. La Chusa (1989) 48 Cal.3d 644; Dillon
v.Legg (1968) 68 Cal.2d 728.) Plaintiffs also note that Defendants fail to
provide any definition of what the term “psychiatric illness” means under New
Zealand law, what the elements of “nervous shock” are, exactly what damages and
amounts of damages such a claim provides, etc.. Plaintiffs note that Jordan was
not in the helicopter when it crashed and did not witness the crash as it
happened.
Based on this, Plaintiffs argue that although he can prove
loss of consortium under California law, he does not meet the necessary
requirements to bring a claim for “nervous shock” in New Zealand. But would California
law even apply to Mr. Jordan if the trial of a New Zealand plaintiff’s claim
for injuries sustained in New Zealand for an accident that occurred in New Zealand
under California’s choice of law rules? The
Court invites oral argument on this point.
If the Court’s
analysis of Eric Jordan’s adequate remedy were found to be in plaintiffs’
favor, then the Court would not ever reach the balancing of public and private
factors. But if the Court were to find for Defendants on that point, the Court would
need to begin the balancing analysis with the litany of factors articulated by
SCOTUS in Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, repeated
or restated in multiple decisions since then by SCOTUS, the California Supreme Court,
California courts of appeal, and in the Judicial Council Comment to Section 410.30. The Gilbert Court stated, bracketed
factor numbers added, as follows at pp. 508–509:
“If the combination and
weight of factors requisite to given results are difficult to forecast or
state, those to be considered are not difficult to name. An interest to be
considered, and the one likely to be most pressed, is the private interest of
the litigant. Important considerations are [1] the relative ease of access to
sources of proof; [2] availability of compulsory process for attendance of
unwilling, and [3] the cost of obtaining attendance of willing, witnesses; [4] possibility
of view of premises, if view would be appropriate to the action; and all [5] other
practical problems that make trial of a case easy, expeditious and inexpensive.
There may also be [6] questions as to the enforcibility of a judgment if one is
obtained. The court will weigh relative advantages and obstacles to fair trial.
It is often said that [7] the plaintiff may not, by choice of an inconvenient
forum, ‘vex,’ ‘harass,’ or ‘oppress' the defendant by inflicting upon him
expense or trouble not necessary to his own right to pursue his remedy.8
But unless the balance is strongly in favor of the defendant, the plaintiff's
choice of forum should rarely be disturbed.”
“Factors of public
interest also have place in applying the doctrine. Administrative difficulties
follow for courts [8] when litigation is piled up in congested centers instead
of being handled at its origin. [9] Jury duty is a burden that ought not to be
imposed upon the people of a community which has no relation to the litigation.
[10] In cases which touch the affairs of many persons, there is reason for
holding the trial in their view and reach rather than in remote parts of the
country where they can learn of it by report only. [11] There is a local
interest in having localized controversies decided at home. There is an
appropriateness, too, in having the trial of a diversity case in [12] a forum
that is at home with the state law that must govern the case, rather than
having a court in some other forum untangle problems in conflict of laws, and
in law foreign to itself.”
The Stangvik case added another public factor, weighing
the competing interests of California and the alternative jurisdiction in the litigation. (Stangvik, supra, 54 Cal.3d at p. 751.) In Stanvik, the plaintiffs were
residents of foreign countries who filed suit in California against heart valve
manufacturers located in California, and the California Supreme Court held that
the California product liability suit should be stayed pending the outcome of
suits in Sweden and Norway, even though as a general rule, “it is for the
plaintiff to choose the place of suit, [and her or ] his choice of a forum
should not be disturbed except for weighty reasons.” (Judicial Council Comment on Code Civ. Proc.,
§ 410.30.) This general rule or presumption
applies with less force when the plaintiff or real parties in interest are
foreign. (Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 255 [balance
of factors in airplane crash case favored trial in Scotland rather than
domicile state of airplane manufacturer].)
Here, Plaintiffs are residents of the proposed alternative forum, New
Zealand.
The
Court notes that the prospect for a much larger dollar recovery in the Plaintiffs’
elected forum versus the alternative forum is not a factor to be
considered.
In the
Court’s view, factor [1] the relative ease of access to sources of proof, is neutral
between California and New Zealand. All
parties currently have California counsel who hae been collecting evidence and attempting
to secure access to sources of proof.
Whether in California where Letter Rogatory can be issued to New Zealand
for discovery of evidence sch as the damaged helicopter components, or in New
Zealand where experts and counsel could visit for on-site inspection if the
helicopter parts remained in that country, all parties have access to the most critical
evidence. Similar analysis applies to obtaining
repair and maintenance records, which appear to be mostly located in New Zealand
but some of which may be located at various defendants’ corporate headquarters.
Evidence of defendants’ US-based manufacturing, design, testing, and other records
would likely be more cumbersome under New Zealand procedural law if the case
were transferred there, but Plaintiffs all live in New Zealand and arrangements
would need to be made to bring them to the lawyers or the lawyers to them for
depositions, production of medical records, etc. Factor [2] is availability of compulsory
process for attendance of unwilling, and [3] the cost of obtaining attendance
of willing, witnesses, appears to be a relatively neutral factor as well as
between the competing forums. There is
an open question as to whether Avco is subject to jurisdiction in California,
and it has a pending motion to quash that was postponed so plaintiff can
conduct jurisdictional discovery. Plaintiff’s
opposition argues that there is no evidence that Acco witnesses would be
subject to discovery if this case were transferred to a New Zealand court, but
Avco’s joinder indicates its consent to jurisdiction in New Zealand. At this point, it appears that witnesses in
this case will be located in multiple locations, including Alabama, Ohio, Pennsylvania,
Texas, California, Nevada, and New Zealand.
Most witnesses will need to board an airplane to testify in person,
absent an agreement to allow remote trial testimony which COVID has made more acceptable
to many. Accordingly, the Court views this
factor as neutral as between California and New Zealand as potential
forums.
Factor
[4], the possibility of a view of the crash site premises, favors the New
Zealand forum. Factor [5], other
practical problems that make trial of a case easy, expeditious and inexpensive,
likely favors a California forum because of counsel’s familiarity with and
access to things like court reporters and daily transcripts, trial presentation
equipment, and far less transportation costs versus relocating such personnel
and equipment to the Southern Hemisphere across the International Date
Line. Factor [6] concerns the enforceability
of a judgment if one is obtained, which the Court assesses as a neutral factor
since a New Zealand judgment could be “domesticated” in the United States to
levy on a defendant’s assets here if necessary.
With respect to factor [7], the risk that a plaintiff may seek to ‘vex,’
‘harass,’ or ‘oppress' the defendant by inflicting expense or trouble not
necessary to pursue plaintiff’s remedy, also appears to be a neutral factor
given Defendants’ willingness to stipulate to jurisdiction and tolling of the statute
of limitations viz-a-viz the New Zealand forum.
The Court also weighs the
public interest factors. These include factor
[8] administration of justice difficulties for courts such as congested centers
of litigation such as Los Angeles versus being handled at this matter’s New
Zealand origin. Plaintiffs point out in their
opposing papers that Los Angeles County has over 400 judges to help manage its
massive, congested dockets and ranks in the middle of the road for states in
case resolutions per capita. But California
courts routinely suffer from problems with calendaring and IC courts in Los
Angeles County are among the most congested in the State. This Court, in the Southwest District, has
over 1,200 cases on its docket at the present time, and is setting new cases
for trial in the first quarter of 2025 because of that congested state. There is no evidence that New Zealand courts
have an equal or greater problem in this regard. This factor seems to weigh in
favor of a New Zealand forum.
Consideration of Factor [9]
Jury duty is a burden that ought not to be imposed upon the people of a
community which has no relation to the litigation. While Plaintiff vigorously
argues California’s relationship to the litigation, and the number of Robinson
employees in the community and jury pool, those employees would likely be
excused from jury service for cause or peremptory challenge. Would a prospective Los Angeles County juror have
a relationship to a case where foreign nationals have traveled half-way around the
world to use California courts to seek recovery for injuries sustained in New
Zealand? Would that be a greater relationship
to the litigation than a New Zealand juror would find in favor of hearing a
bodily injury case involving New Zealand country members as against US-based
companies? The Court finds this factor
weighs in favor of a New Zealand forum.
Factor [10] addresses cases
which touch the affairs of many persons, and that factor favors a California
forum given the far greater number of helicopters in California and Los Angeles
versus those in New Zealand, where the public and prospective jurors would likely
have a greater stake in the safety of the more numerous such aircraft. Factor [11] is the local interest in having
localized controversies decided at home. The parties vigorously dispute this factor. One of the defendants, Robinson Helicopter,
has their principal place of business in California but none have a principal
place of business in New Zealand. But
New Zealand was the location of the crash, the home to all four plaintiffs, and
the site of the subject helicopter’s operation and maintenance for 15
years. Parker Hannifin and Weldon Pump
are both Ohio corporations with their principal place of business in
Cleveland. Plaintiff’s Appleby
Declaration attests to the large number of cases that Robinson Helicopter,
Lycoming Engines aka Avco, and Parker Hannifin have litigated in California courts,
but neither side has provided similar data on the number of suits these
defendants have litigated in foreign countries after the granting of a forum
non motion. The Court finds this factor
to be somewhat neutral given Robinson’s domicile as the lead defendant here and
Plaintiffs’ domicile in New Zealand.
Finally, factor [12] concerns
a forum that is at home with the state law that must govern the case, rather
than having a court in some other forum untangle problems in conflict of laws,
and in law foreign to itself. Since the
crash occurred in New Zealand, injuring New Zealand residents, it appears to the
Court that New Zealand law would likely apply to the trial of this matter
whether it was conducted in California or New Zealand under California conflict
of interest laws. The Court will
consider oral argument on this factor which was touched on by both sides in their
briefing, but the Court tentatively finds this factor favors a New Zealand
forum.