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May 3, 1983


The opinion of the court was delivered by: GREENE

On March 9, 1983, the Court granted plaintiff's motion for preliminary injunction restraining defendants from seeking to interfere with the jurisdiction of this Court by means of lawsuits brought in a British court. *fn1" The Court now considers plaintiff's motion for partial summary judgment on forum non conveniens grounds.


 Defendants argue that plaintiff has chosen the wrong vehicle for bringing the forum non conveniens issue before the Court. More specifically, it is said that summary judgment under Rule 56 of the Federal Rules of Civil Procedure is not the proper method for raising this question. While there is a split of authority regarding the availability of Rule 56 for this matter, the better approach, according to Wright & Miller *fn2" is to allow the Rule to be utilized for the grant of partial summary judgment with respect to an affirmative defense. The Court agrees with the Wright & Miller analysis, particularly in the circumstances of this case. As the authors of that text state,

the fact that the order is directed at defensive matter should not prevent it being issued inasmuch as a partial adjudication would serve a useful purpose and remove any prejudice that plaintiff otherwise might suffer if the issue were presented to the jury.

 Wright & Miller at 463.

 Defendants' procedural argument amounts more broadly to a claim that there are no means *fn3" by which a plaintiff may raise the forum non conveniens question, and concomitantly, that it is entirely up to the defendants when the issue may be decided. That contention must be rejected.

 All the defendants list forum non conveniens in their answers to the complaint as an affirmative defense. *fn4" Thus, it is not necessary to determine whether a plaintiff may raise the issue on his own if the defendant has given no indication that he is or may be relying on this defense. The issue is already before the Court, and it is merely a question whether in that posture the plaintiff may bring it to a head by filing a motion.

 Defendants have pointed to neither law nor policy reasons why they should be held to be in absolute control of timing with regard to this matter, and there would clearly be no basis for any such conclusion. If an action is to be dismissed or transferred elsewhere on forum non conveniens grounds, that should obviously be done before the Court has expended time and effort which might subsequently turn out to have been wasted. To wait until the defendants may be prepared, for their own tactical reasons, to raise the issue on their own (slip op. at pp. 10-12 infra) or, as some defendants have suggested, *fn5" to delay until detailed evidence in support of and in opposition to plaintiff's substantive allegations has been amassed (slip op. pp. 6-9 infra), would be wrong and contrary to the spirit of the rules of procedure. See Rule 1, Fed.R.Civ.P., which directs the courts to construe the Rules "to secure the just, speedy and inexpensive determination of every action." *fn6"


 Much of the discussion in the Court's March 9, 1983 Opinion granting plaintiff's motion for preliminary injunction is pertinent here. Briefly, the complaint alleges that the defendants, who in the main are American and foreign air carriers, *fn7" engaged in a scheme to destroy plaintiff's low cost air service on the transatlantic routes between the United States and Europe. The scheme was allegedly perfected in part through the medium of the International Air Transport Association, including through IATA meetings in Florida and in Switzerland.

 When a court considers the issue of forum non conveniens, the plaintiff's choice of forum is, of course, given significant weight and should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947); Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 637 F.2d 775, 783 (D.C.Cir. 1980). *fn8" In view of that general principle, the burden is on those who challenge plaintiff's choice to demonstrate that some other forum is more convenient.

 Defendants have in the main concentrated on the technical grounds disposed of supra,9 and it is therefore somewhat difficult to determine on what substantive basis they oppose plaintiff's choice of forum. As best as can be determined, however, the defendants contend that, since most of the defendants are airlines anchored in Europe, *fn10" it may be assumed that the convenience of the witnesses would be served and the documents would more easily be available if the Court were to defer to the British tribunal.

 Defendants' argument based on the convenience of witnesses has little validity when advanced in the context of a lawsuit involving transatlantic air passenger carriers. The Court takes judicial notice of the fact that these carriers provide frequent flights between the continents; that the time involved and the expense of transporting witnesses would be minimal; *fn11" and that all the defendants maintain extensive business establishments in the United States, including, of course, numerous ticket offices. *fn12"

 Beyond that, there is the key fact of the configuration of the alleged conspiracy. If there was a conspiracy, the United States was its hub and the various countries in Europe were its spokes. See Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). Insofar as transatlantic traffic is concerned -- the focus of the complaint -- each of the non-American air carriers provides service between a particular European country and the United States. *fn13" On that basis, a court in the United States is a far more logical forum ...

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