* This text was reproduced and reformatted from the text available at the United States Court of Appeals for the 11th Circuit website: (visited August 17, 2009) <http://www.ca11.uscourts.gov/opinions/ops/200811033.pdf.

1 King ex rel. Estate of King v. Cessna Aircraft Co., 405 F. Supp. 2d 1374, 1381 (S.D. Fla. 2005).

2 King v. Cessna Aircraft Co., 505 F.3d 1160, 1173 (11th Cir. 2007) (disapproving of the stay of U.S. proceedings because “there is no indication when, if ever, the Italian litigation will resolve the claims raised in this case, and whether [the American Plaintiffs] will have a meaningful opportunity to participate in those proceedings”).

3 Id.

4 King v. Cessna Aircraft Co., No. 03-20482, 2008 WL 276015, at *2 (S.D. Fla. Jan. 31, 2008).

5 King v. Cessna Aircraft Co., 562 F.3d 1374, 1382 (11th Cir. 2009) [hereinafter King].

6 Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 424 (2007).

7 King, 562 F.3d. at 1384.

8 Id.

9 Id. at 1382.

10 Id. at 1384.

11 Id.

12 Id. at 1382 (citing SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir. 2004)).

13 Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981)).

14 Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).

15 Id. at 1383.

16 Id. (citing Sinochem, 549 U.S. at 430).

17 Id. (quoting Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 73 (2d Cir. 2003)).

18 Id.

19 Myers v. Boeing Co., 794 P.2d 1272, 1281 (Wash. 1990)

20 Radeljak v. DaimlerChrysler Corp., 719 N.W.2d 40, 71 (Mich. 2006) (Kelly, J., dissenting).

21 See Elizabeth Lear, Congress, the Federal Courts and Forum Non Conveniens: Friction on the Frontier of the Inherent Power, 91 Iowa L. Rev. 1147, 1175-77 (2006) (citing, for example, Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001)). 22 See, e.g., Wiwa v. Royal Dutch Petroleum Co.,226 F.2d 88, 101 (2d Cir. 2000) (giving deference to the forum choice of “lawful United States resident plaintiffs”); Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir. 1998) (finding that plaintiffs not “resident” in the forum are entitled to reduced deference).

23 King, 562 F.3d at 1382 (citing SME Racks, Inc., 382 F.3d at 1101); see also Reid-Walen v. Hansen, 933 F.2d 1390, 1395 n.6 (8th Cir. 1991) (deferring to the forum choice of American “citizens or residents”); Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1246 (7th Cir. 1990) (same); Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 613–14 (6th Cir. 1984) (same). This blurring of the lines between citizens and residents is not accidental; indeed, it derives from the text of the Supreme Court’s decision in Piper. See 454 U.S. at 255 (“The District Court’s distinction between resident or citizen plaintiffs and foreign plaintiff’s is fully justified”) and id. at 255 n.23 (“[c]itizens or residents deserve somewhat more deference than foreign plaintiffs. . .”)

24 King, 505 F.3d at 1170–71.

25 This is, in fact, the rule for determining the existence of diversity jurisdiction. Under 28 U.S.C. § 1332(c)(2), it is the domicile of the decedent, and not the personal representative of her estate, that matters. See King, 505 F.3d 1160, 1170. Some courts have applied this rule in the forum non conveniens context as well. See Fitzgerald v. Westland Marine Corp., 369 F.2d 499 (2d Cir. 1966) (considering the Spanish residency of the decedents, and not the U.S. residency of their personal representative, in a mass tort action dismissed on forum non conveniens grounds); Myers, 794 P.2d 1272 (considering the Japanese residency of the decedents, and not the U.S. residency of their personal representatives, in a mass tort action dismissed on forum non conveniens grounds).

26 637 F.2d 775 (D.C. Cir. 1980)

27 Pain v. United Techs. Corp., 637 F.2d 775, 797 (D.C. Cir. 1980).

28 King, 562 F.3d. at 1383. Another interesting point for consideration in King v. Cessna: Pain involved a mass tort action that included one American-resident plaintiff, and her claims were dismissed on forum non conveniens grounds along with all the others. Pain, 637 F.2d at 798–99; see also Wiwa, 226 F.2d at 101 (dismissing action brought by four Nigerian citizens, including of two who resided in the United States).

29 See supra note 23.

30 There is virtual uniformity across U.S. jurisdictions that the right of court access in bilateral treaties “is intended to guarantee treaty nationals equal treatment with respect to procedural matters like filing fees, the employment of lawyers, legal aid, security for costs and judgment and so forth,” Blanco v. United States, 775 F.2d 53, 61-62 (2d Cir. 1985), but it “do[es] not . . . require a nation’s courts to receive litigation that it reasonably believes would be better conducted in another nation.” Bonzel v. Pfizer, Inc., 439 F.3d 1358, 1365 (Fed. Cir. 2006) (citing Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 980 (2d Cir. 1993) and Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir. 1978)). See also Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 72–73 (2d Cir. 2003); In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F. Supp. 2d 1125, 1136 (S.D. Ind. 2002); Jennings v. Boeing Co., 660 F. Supp. 796, 800 (E.D. Pa. 1987); Myers, 794 P.2d 1272;.

31 By this author’s research, Pain is one of onlythree examples of expatriate Americans receiving less deference in their choice of forum than resident plaintiffs, and having their claims dismissed on forum non conveniens grounds. See also Seales v. Panamanian Aviation Co., No. 07-CV-2901, 2009 WL 395821 (E.D.N.Y. Feb. 18, 2009); Bohn v. Bartels, No. 06 Civ. 1390, 2007 WL 4334667 (S.D.N.Y. Dec.12, 2007).

1 The King Plaintiffs argued Swint absolutely bars “pendent party jurisdiction”—i.e., pendent jurisdiction over a party not involved in the main appeal. However, the appropriate inquiry under Swint is not whether the pendent appeal involves a different party than is in the main appeal but whether the issues of the nonappealable decision are “inextricably intertwined” with the appealable decision or when “review of the former decision [is] necessary to ensure meaningful review of the latter.” See Swint, 514 U.S. at 51, 115 S. Ct. at 1212. Indeed, the Supreme Court, our Circuit, and nearly every other court of appeals has exercised pendent appellate jurisdiction over closely related issues even when the pendent appeal involved parties not involved in the main appeal. See Clinton v. Jones, 520 U.S. 681, 707 n.41, 117 S. Ct. 1636, 1651 n.41 (1997) (affirming jurisdiction to review Paula Jones’ cross-appeal as pendent to President Clinton’s immunity appeal even though Jones’ appeal involved a party who was not involved in the immunity appeal); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1358-59 (11th Cir. 2008) (exercising jurisdiction to review a grant of summary judgment pertaining to all defendants because it “provided the basis for the injunction” entered against and appealed by a few of the defendants); see also Global NAPs, Inc. v. Mass. Dep’t of Telecomms. & Energy, 427 F.3d 34, 43 (1st Cir. 2005); Morley v. Ciba-Geigy Corp., 66 F.3d 21, 22 n.1 (2d Cir. 1995); In re Tutu Wells Contamination Litig., 120 F.3d 368, 382 (3d Cir. 1997); Mattox v. City of Forest Park, 183 F.3d 515, 523-24 (6th Cir. 1999); Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001); Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996); Huskey v. City of San Jose, 204 F.3d 893, 904 (9th Cir. 2000); Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995); NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C. Cir. 1996). In cases with the same factual scenario as Swint—an official immunity appeal in which there was an appeal by another party who could not assert official immunity—we have declared there was no “pendent party jurisdiction.” See, e.g., Hudson v. Hall, 231 F.3d 1289, 1292 n.1 (11th Cir. 2000); Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) (per curiam); Pickens v. Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995). Although we interpreted Swint to bar pendent party jurisdiction under those circumstances, the Supreme Court left open the possibility for such jurisdiction in other, albeit narrow, contexts. See Swint, 514 U.S. at 5051, 115 S. Ct. at 1212 (declining to “definitively or preemptively settle . . . whether or when it may be proper . . . to review, conjunctively, related rulings that are not themselves independently appealable”); Charles Alan Wright & Arthur R. Miller, 16 Federal Practice & Procedure § 3937 (2008).

2 The European Plaintiffs represent 21 Swedish citizens, 19 Italian citizens, 19 Danish citizens, 4 Finnish citizens, 3 Norwegian citizens, 1 Romanian citizen, and 1 British citizen. There is also one Italian personal injury claimant. Those representing the Italian and Danish decedents and the Italian personal injury claimant—39 of the 69 plaintiffs—are entitled by treaty to “no less favorable” treatment than an American national when suing in U.S. courts. See Treaty of Friendship, Commerce and Navigation, U.S.-Italy, art. V.4, July 26, 1949, 63 Stat. 2255, 1949 WL 37628; Treaty of Friendship, Commerce and Navigation, U.S.-Denmark, arts. V.1 & XXII.1, July 30, 1961, 12 U.S.T. 908, 1961 WL 62672. Eight others— representing the Finns, Norwegians, and Romanian—are entitled to “freedom of access” or “access” to U.S. courts. Treaty of Friendship, Commerce and Consular Rights, U.S.- Finland, art. I, Aug. 10, 1934, 49 Stat. 2659, 1934 WL 29046; Treaty of Friendship, Commerce and Consular Rights, U.S.- Norway, art. I, Sept. 15, 1932, 47 Stat. 2135, 1932 WL 31050; Agreement on Trade Relations between the United States and Romania, U.S.-Romania, arts. IV.2 & V.2, Aug. 3, 1975, 26 U.S.T. 2605, 1975 WL 165548.