Court Grants Defense Motions to Dismiss Cases in EgyptAir Flight 990 Litigation
On March 29, 2010, U.S. District Court Judge Brian M. Cogan granted defense motions to dismiss the claims of many of the remaining plaintiffs in the multidistrict litigation In Re Air Crash Off the Coast of Nantucket Island, Mass. on Oct. 31, 1999.1 The litigation arose out of the EgyptAir Flight 990 accident on October 31, 1999. The aircraft, a Boeing 767, crashed into the Atlantic Ocean, approximately 60 miles south of Nantucket Island, Massachusetts, on a flight from New York’s John F. Kennedy International Airport to Cairo International Airport in Egypt. All 217 persons on board the aircraft died in the accident.
Judge Cogan’s decision pertained to three complaints that had been filed by multiple plaintiffs on behalf of multiple decedents and were referred to as the Dimitri, Habashy and Mohamed cases. Motions to dismiss were filed jointly by the Boeing Company (the aircraft’s manufacturer), Parker Hannifin Corporation (a component-part manufacturer) and EgyptAir (the operator of the aircraft).2 On the first motion, Judge Cogan dismissed the claims of various plaintiffs in the Dimitri and Habashy cases on the grounds that the plaintiffs had executed agreements to dismiss claims pending in the United States in exchange for payment, but subsequently refused to dismiss the claims. On the second motion, Judge Cogan dismissed the claims of one of the plaintiffs in the Mohamed case on the basis of lack of capacity to sue because the plaintiff’s appointment as personal representative was nearly 10 years after the accident and well after the expiration of the limitations period in the Death on the High Seas Act (DOHSA). On the third and fourth motions, Judge Cogan dismissed for failure to prosecute the claims made by various plaintiffs in all three cases.
Enforcing the Executed Settlement Agreements
Judge Cogan dismissed the claims of various plaintiffs in the Dimitri and Habashy cases on the basis that the plaintiffs had executed settlement agreements in 2003 agreeing to dismiss with prejudice their claims pending in the United States. The agreements acknowledged that the plaintiffs had received the advice of U.S. counsel and that the plaintiffs “waive and renounce all legal remedies which may be available ... anywhere in the world arising out of this Accident, save such remedies that may be available to us in Egypt.” The plaintiffs accepted payment as consideration for executing the agreements but refused to dismiss their claims.
Judge Cogan discussed, and found no merit in, the following points raised by the plaintiffs in opposition to the motion: (1) the agreements were invalid because the plaintiffs did not execute “Certificates of Acknowledgment of Execution of an Instrument”; (2) there was no evidence of final payment; (3) the settlement amounts were redacted on the copies of the agreements included with the motion papers; (4) the families of other victims received similar payments without having their cases dismissed; and (5) prior letters to the court demonstrated that the plaintiffs were not “under the impression” that their cases settled.
Judge Cogan determined that the executed settlement agreements were clear and unambiguous and that the agreements required the plaintiffs to dismiss their claims pending in the United States in exchange for the agreed upon sum of money that was paid. In addition, Judge Cogan noted that the plaintiffs did not contest the meaning of the agreements, did not dispute the authenticity of the agreements, and did not claim that the agreements were the product of mistake, duress, coercion or fraud or any other ground typically asserted to invalidate a settlement agreement.
Plaintiff’s Lack of Capacity to Sue
Judge Cogan dismissed the claims of a plaintiff in the Mohamed case on the basis of lack of capacity to sue. At issue was whether DOHSA’s requirement that the action be brought by the personal representative of the decedent’s estate was satisfied by the plaintiff’s appointment as personal representative nearly 10 years post-accident − well after the expiration of the statute of limitations imposed by DOHSA for the commencement of the suit.
Judge Cogan held that an attorney’s failure to complete the appointment process in a timely fashion does not justify tolling the DOHSA limitations period and that Rule 17(a) of the Federal Rules of Civil Procedure does not “relate back” the recent appointment to the commencement of the suit. Judge Cogan notably rejected the plaintiff’s argument that the defendants − who had raised the capacity to sue defense in their answer − had waived their right to challenge the plaintiff’s capacity to sue by not moving to dismiss at an earlier time.
Dismissal for Failure to Prosecute
Finally, Judge Cogan dismissed for failure to prosecute the claims made by various plaintiffs in all three cases. Recognizing that granting such relief is “a harsh remedy to be utilized only in extreme situations,” Judge Cogan determined that the facts of the litigation warranted dismissal under the five-factor analysis articulated by the Second Circuit: (1) the duration of the plaintiff’s failures; (2) whether the plaintiff received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether an appropriate balance has been struck between alleviating the court’s calendar congestion and protecting the litigants’ due process rights; and (5) whether lesser sanctions would be appropriate.3
Judge Cogan determined, inter alia, that: (1) the sanction of dismissal was warranted because the plaintiffs were only in the preliminary stages of discovery even though the litigation had been pending for more than nine years; (2) the defendants suffered prejudice due to the plaintiffs’ inaction, especially since the NTSB’s investigation of the accident was completed in 2002 and there was a strong likelihood that witnesses would have faded memories and that remaining physical evidence would be hard to find; and (3) there was “no point in subjecting defendants to the cost and delay that alternative sanctions would likely produce.” The plaintiff's counsel has filed a notice of appeal and a motion for reargument.
1 No. 1:00-MD-01344 (E.D.N.Y. March 29, 2010).
2 Although EgyptAir was not a defendant in the Habashy and Mohamed cases, it participated in the motions relating to the Dimitri case.
3 See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004).