In the early hours of March 8, 2014, Malaysia Airlines Flight MH370 disappeared somewhere over the Southern Indian Ocean. The Boeing 777 that carried 239 passengers and crew, including three U.S. citizens, has never been found.

Beginning in early 2016, approximately forty lawsuits related to Flight MH370's disappearance were filed in district courts across the United States. The Judicial Panel on Multidistrict Litigation transferred the cases to the U.S. District Court for the District of Columbia for pretrial proceedings.

After a year of discovery on threshold issues, including issues of jurisdiction, the defendants filed a joint motion to dismiss, claiming forum non conveniens. The Malaysian Airline defendants also sought dismissal based on sovereign immunity and lack of subject matter jurisdiction under the Montreal Convention.

Declining to reach the jurisdictional issues, the district court found that Malaysia is an adequate alternative forum for the plaintiffs' Montreal Convention and state law wrongful death and product liability claims (against Boeing). In exercising its discretion, the district court explained that Malaysia is not inadequate merely because it has less favorable substantive law. The district court also balanced the relevant public and private interest factors, ruling that Malaysia's public interest in hearing claims arising from Flight MH370's disappearance far outweighed that of the United States, even as to the tort claims the plaintiffs asserted against Boeing. Further, the district court found that the interests of the parties would be better served by trying the cases in Malaysia in light of the overwhelming amount of evidence and witnesses located there (and the challenges of making that evidence available in a United States court).

The D.C. Circuit, giving substantial deference to the district court's reasoning, as it is obliged to do under standards governing review of forum non conveniens decisions, found that there was no abuse of discretion. It rejected appellants' arguments that the district court failed to give sufficient deference to the plaintiffs' choice of forum, finding that the court's discussion demonstrated that it had given plaintiffs' choice of forum the appropriate consideration, including giving a U.S. citizen plaintiff the highest degree of deference. The D.C. Circuit also rejected appellants' arguments that the district court improperly declined to reach the sovereign immunity challenges raised by the airline while pointing to "intractable immunity questions" as a reason for forum non conveniens dismissal.

Finally, the D.C. Circuit found that appellants had waived multiple arguments they failed to raise before the district court. Thus, the D.C. Circuit did not consider the U.S. citizen's argument that he could not secure counsel of his choice in Malaysia and rejected other appellants' arguments that tort damages are inadequate under Malaysian law.

While the result is perhaps not surprising, the case serves as a reminder that litigants must be careful to preserve their arguments in the trial court. In the press of motions practice, counsel should carefully consider whether to involve appellate practitioners to spot potential arguments to preserve for appeal. In re Air Crash Over the South Indian Ocean, 946 F.3d 607 (D.C. Cir. 2020).

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