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In re Air Crash over Southern Indian Ocean

United States District Court, District of Columbia

November 21, 2018




         The legal claims in this multi-district litigation (“MDL”) arise from one of the greatest aviation mysteries of modern times: the disappearance of Malaysia Airlines Flight MH370 somewhere in the southern Indian Ocean in the early morning hours of March 4, 2014. Flight MH370 took off from Kuala Lumpur International Airport in Malaysia at 12:42 AM that morning, en route to Beijing, China, with 227 passengers and 12 crew members aboard the plane. Thirty-nine minutes after takeoff, while the Boeing 777 aircraft was flying over the South China Sea and transitioning from Malaysian to Vietnamese airspace, Malaysian air traffic controllers lost radar contact with the aircraft. At Malaysia's behest, a massive international search and rescue effort ensued, but neither the plane nor any wreckage was recovered, and on January 28, 2015, the Malaysian Department of Civil Aviation (“MDCA”) announced that all aboard Flight MH370 were presumed deceased. Some pieces of wreckage have since washed ashore on islands in the Indian Ocean and on the eastern coast of Africa, but, to date, most of the plane remains unaccounted for, including the cockpit voice recorder and the flight data recorder.

         Following the disappearance of Flight MH370, litigation commenced in both Malaysia and in the United States; many plaintiffs have filed suit in both jurisdictions. In the United States, complaints were filed in California, the District of Columbia, Illinois, New York, South Carolina, and Washington state, and the Judicial Panel on Multidistrict Litigation subsequently centralized the pretrial proceedings with respect to all of these cases in this District. (See Transfer Order, ECF No. 1.) The complaints in these matters can generally be grouped into two categories. First, there are cases that assert claims under the Montreal Convention against the defendant airlines-Malaysia Airlines System Berhad (Administrator Appointed) (“MAS”) and Malaysia Airlines Berhad (“MAB”)-and/or their insurers, Allianz Global Corporate & Specialty SE (“AGCS SE”), and Henning Haagen, an officer at AGCS SE. Second, there are cases that assert common law wrongful death and products liability claims against airplane manufacturer Boeing, including claims based on a res ipsa loquitor tort theory. There is also a single complaint that resides in the overlap between these two groups-it asserts Montreal Convention, wrongful death, and personal injury claims, and names MAS, MAB, AGCS SE, Haagen, and Boeing as defendants. All told, 40 complaints are currently pending in this MDL.

         Before this Court at present are five ripe motions pertaining to particular threshold issues that various defendants have raised: (1) a joint motion seeking dismissal of all pending cases based on the doctrine of forum non conveniens, in which Defendants argue that it would be more convenient to ligate these matters in Malaysia, as opposed to the United States (see Joint Mem. in Supp. of Mot. to Dismiss on the Ground of Forum Non Conveniens (“FNC Mem.”), ECF No. 37-1); (2) a motion by MAS and MAB seeking dismissal of the claims against them on the grounds that they are agencies of the Malaysian government and immune from suit in United States courts pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 (see Defs.' MAS and MAB's Mem. in Supp. of Their Rule 12(b)(1) Mot. to Dismiss on the Ground of Immunity Pursuant to the Foreign Sovereign Immunities Act (“FSIA Mem.”), ECF No. 39-1)[1]; (3) a motion by MAS seeking dismissal of the Montreal Convention claims against it on the grounds that no provision of the Convention provides a court in the United States with jurisdiction over these claims (see Def. MAS's Mem. in Supp. of Its Rule 12(b)(1) Mot. to Dismiss on the Ground of Lack of Subject Matter Juris. Pursuant to the Montreal Convention (“Montreal Convention Mem.”), ECF No. 38-1)[2]; (4) a motion by AGCS SE seeking dismissal of the claims against it for lack of personal jurisdiction, because it is a foreign company that did not engage in any conduct connected to the loss of Flight MH370 in any of the jurisdictions in which it has been sued (see Def. AGCS SE's Rule 12(b)(2) Mot. to Dismiss for Lack of Personal Juris. (“AGCS SE Pers. Juris. Mot.”), ECF No. 35-1); and (5) a motion by AGCS SE and Haagen seeking dismissal for failure to state a claim upon which relief can be granted, in which they argue that Plaintiffs' attempt to make them representatives of MAS and MAB, based solely on their status as alleged insurers of MAS, has no legal foundation (see Defs. AGCS SE and Henning Haagen's Mem. in Supp. of Their Rule 12(b)(6) Mot. to Dismiss for Failure to State a Claim (“Reinsurer Rule 12(b)(6) Mem.”), ECF No. 36-1).

         This Court has carefully parsed the myriad dismissal arguments Defendants have presented, and as fully explained below, it has determined that, on balance, the claims asserted in the consolidated complaints have a substantial and overriding nexus to Malaysia that outweighs the less substantial connection to the United States. As such, litigation of these claims in the United States is comparatively inconvenient, and Defendants' joint motion for dismissal based on forum non conveniens will be GRANTED, and Plaintiffs' cases will be DISMISSED without prejudice. The remaining threshold motions will be DENIED as moot. A separate Order consistent with this Memorandum Opinion will follow.


         A. The Incident And Its Aftermath

         1. Flight MH370's Disappearance

         At 12:42 AM on the morning of March 8, 2014, Flight MH370 took off from Kuala Lumpur International Airport in Malaysia, en route to Beijing, China. (See Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Factual Information Safety Investigation For MH370 (March 8, 2015, updated on April 15, 2015) (“Factual Investigation Rpt.”), ECF No. 37-4, at 21; Malaysian Department of Civil Aviation Press Release (“MDCA Press Release”), ECF No. 37-3, ¶ 3.)[4] MAS was the national airline of Malaysia at that time (see Decl. of Rizani Bin Hassan, Ex. 2 to FISA Mem., ECF No. 39-3, ¶¶ 5, 8, 20-21), and 12 Malaysian citizens staffed Flight MH370-a pilot, a first officer, and 10 cabin crew (see MDCA Press Release ¶ 4; Decl. of Mohd Fuad Bin Mohd Sharuji, Ex. 3 to FNC Mem., ECF No. 37-5, at ¶ 15). Also on board were 227 passengers of 14 nationalities, including 152 Chinese citizens, 38 Malaysian citizens, and three United States citizens. (See Decl. of Tan Sri Dato Seri Adbull Hamid Embong, Ex. 10 to FNC Mem., ECF No. 37-12, ¶ 13).[5]

         At 1:19 AM, while the aircraft was over the South China Sea and transitioning from Malaysian airspace to Vietnamese airspace, Malaysian air traffic controllers instructed Flight MH370 to contact Vietnamese air traffic controllers on a specific radio frequency, a request that the pilot in charge acknowledged with, “Good night Malaysian Three Seven Zero.” (Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Safety Investigation Report (July 2, 2018) (“Safety Investigation Rpt.”), ECF No. 102-1, at 48, 477.) The pilot “did not read back the assigned frequency, which was inconsistent with radio-telephony procedures.” (Id. at 477.) This was the last recorded radio transmission that the pilots of Flight MH370 sent, and two minutes later, at 1:21 AM, Malaysian air traffic controllers lost radar contact with the aircraft. (Id. at 48-49.)[6]

         “The Malaysian military radar and radar sources from two other countries, namely Vietnam and Thailand, also captured the disappearance of the radar position symbol of MH370” in this same timeframe. (Id. at 49.) Once Malaysian air traffic controllers lost sight of Flight MH370 on their radar, Malaysian military radar showed a “blip” that appeared to be the plane. However, this “blip” appeared to be diverting from Flight MH370's northerly flight plan; it briefly veered to the right, and then turned left dramatically, flying west-southwest across Malaysia, at variable altitudes and speeds, before turning right when the plane was south of Penang Island, off of the western coast of Malaysia. (See Id. at 50, 55.) The “blip” indicated that the plane was flying in a west-northwest direction, and it disappeared from the military radar entirely at 2:22 AM, 10 nautical miles north of a flight navigation way point known as MEKAR. (See Id. at 52, 55.)

         The Boeing 777 the Malaysia Airlines used as equipment for Flight MH370 was equipped with a satellite communications system, and except for two brief periods, “the aircraft [itself] communicated through the Inmarsat Indian Ocean Region . . . I-3 Satellite and the [Ground Earth Station] in Perth, Australia.” (See id. at 165.)[7] The satellite connections were briefly lost sometime between 1:07 AM and 2:03 AM, presumably as the result of equipment failing or being powered down, but Flight MH370's satellite data unit logged back onto the system and sent a “handshake” at 2:25 AM. (See Id. at 171.) The aircraft then initiated five additional “handshakes” before the satellite communications system again briefly lost power, likely as a result of fuel running low and engines losing power, but then logged back on. (See Id. at 171-175; 480.) The system initiated a seventh and final “handshake” at 6:19 AM, but when the Perth ground station attempted to contact the plane again at 7:15 AM, it did not receive any response. (See Id. at 175-76.)

         2. Search Efforts And Subsequent Investigations

         Malaysia's Minister of Transport authorized a team of officials-known as the Malaysian ICAO Annex 13 Safety Investigation Team for MH370 (hereinafter referred to as the “Malaysian MH370 Investigation Team”)-to coordinate the initial search and rescue efforts, and also to investigate the cause of Flight MH370's disappearance. (MDCA Press Release ¶ 28.)[8] On March 17, 2014, at Malaysia's request, the Australian Transportation Safety Board (“ATSB”) “took charge of the coordination of the search and rescue operation[, and o]ver the next 6 weeks from 18 March, an intensive aerial and surface search was conducted by assets from Australia, Malaysia, China, Japan, Korea, UK and the USA.” (ATSB, MH370-Definition of Underwater Search Areas (updated Aug. 18, 2014) (“ATSB June 2014 Rpt.”), Ex. E to Pls.' Resp. in Opp'n to Defs.' Mot. to Dismiss on the Ground of Forum Non Conveniens (“Motley Rice FNC Opp'n”), ECF No. 67-6, at 7.)

         ATSB's initial search for Flight MH370 was focused on the South China Sea, which was the flight's last known location as detected by air traffic control. “The search area was later extended to the Straits of Malacca, to the west of Malaysia, based on military radar showing that an aircraft like Flight MH370 had made an air turn back from the South China Sea and headed west back across the Malaysian Peninsula.” (Decl. of Hillary Barr (“Barr Decl.”), Ex. 5 to FNC Mem., ECF No. 37-7, ¶ 4.) Using the satellite data “handshakes, ” investigators plotted the plane's likely course, which included making a southern turn shortly after passing the northern tip of Sumatra, after the plane had disappeared from military radar. (See Safety Investigation Rpt. at 184.) “The 52 days of the surface search involving aircraft and surface vessels covered an area of several million square kilometres[, ]” and an extensive “sub surface search for the aircraft's underwater locator beacons was also conducted[.]” (Id. at 67.)[9]

         Ultimately, the search team concluded that Flight MH370 likely crashed in the Southern Indian Ocean after running out of fuel. (See id.) “[T]he search and rescue phase transitioned to a search and recovery phase” on April 28, 2014 (MDCA Press Release ¶ 9), and on January 28, 2015, having not located the plane or any wreckage, the MDCA announced that the “data supports the conclusion that MH370 ended its flight in the southern Indian Ocean[, ]” away from any possible landing site. (Id. ¶ 20.) Accordingly, the MDCA presumed that all passengers and crew had perished. (Id. ¶ 23.)

         Three pieces of confirmed wreckage and more than 20 pieces of likely wreckage have since washed ashore on islands in the Indian Ocean and on the eastern coast of Africa, but most of the plane remains unaccounted for, including the cockpit voice recorder and the flight data recorder. (See Id. at 185-99.)[10] In January of 2017, the governments of Malaysia, Australia, and China officially suspended the underwater search for Flight MH370. (See Id. at 67.) Thereafter, in January of 2018, a private company, Ocean Infinity, entered into a contract with the Malaysian government to conduct an additional underwater search for wreckage, centered on an area that it believed was most likely to contain wreckage from the aircraft. (See Id. at 67, 184.) Over a period of 90 days, Ocean Infinity searched an additional 112, 000 square kilometers north of this initial search area, also to no avail. (See id.)

         3. The Annex 13 Report And Criminal Investigation

         With Australia taking the lead on locating the physical remains of Flight MH370, the Malaysian MH370 Investigation Team-consisting of an Investigator in Charge and 18 additional subordinates-worked with representatives from seven countries to determine why Flight MH370 had disappeared; this investigation is known as “the Annex 13 Safety Investigation[.]” (See Safety Investigation Rpt. at 15, 443.) The United States participated in the Annex 13 Safety Investigation through the National Transportation Safety Board (“NTSB”), because the United States is the county of manufacture and design of the aircraft, and in this regard, Boeing-which designed and manufactured the aircraft at issue (see infra Part I.B)-served as a technical adviser to the NTSB. (Barr Decl. ¶ 9.)

         Australia, the United Kingdom, Singapore, France, China, and Indonesia also participated in the Annex 13 Safety Investigation. (See Safety Investigation Rpt. at 15.) The collective investigative effort involved interviewing more than 120 people, including MAS employees, crew member relatives, Malaysia aviation officials, and representatives of companies that were shipping cargo on Flight MH370. (See Malaysian ICAO Annex 13 Safety Investigation Team for MH370, Interim Stmt., Safety Investigation for MH370 (9M-MRO) (Mar. 8, 2015) (“Safety Investigation Interim Stmt.”), Ex. 6 to FNC Mem., ECF No. 37-8, at 3.) The team also reviewed airline-maintenance records, as well as Boeing's records, air traffic control records and recordings, closed-circuit footage of the crew, bank records, and statements from friends, relatives, co-workers, and medical providers of the crew members. (See id.; Safety Investigation Rpt. at 71, 82.) Annex 13 investigators thoroughly researched the pilots and the crew members, and even analyzed the voices on the flight's radio transmissions to detect signs of stress. (See Safety Investigation Rpt. at 71-84.)

         On July 2, 2018, the Malaysian MH370 Investigation Team issued a 449-page report, which was the culmination of the years-long Annex 13 Safety Investigation's inquiry into the causes of the flight's disappearance. (See generally Safety Investigation Rpt.; see also Id. at 21 (noting that the “sole objective of the investigation [was] prevention of accidents and incidents [and not] to apportion blame or liability”).) In that report, the team noted that it “was likely” that the left turn that took the aircraft back over Malaysia “was under manual control and not the autopilot.” (Id. at 475.) However, the investigators could not determine whether or not “the other two turns over the south of Penang and the north of MEKAR were made under manual control or autopilot.” (Id.) The report also found that Malaysian air traffic controllers “did not comply fully with established [air traffic control] procedures” and did not initiate emergency procedures “in a timely manner[, ]” and that Vietnamese air traffic controllers had also failed to communicate timely with Malaysian controllers about the disappearance of the plane. (Id. at 476.)

         With respect to the initial loss of communication, investigators reported that

[a]lthough it cannot be conclusively ruled out that an aircraft or system malfunction was a cause, based on the limited evidence available, it is more likely that the loss of communication (VHF and HF communications, ACARS, SATCOM and Transponder) prior to the diversion is due to the systems being manually turned off or power interrupted to them or additionally in the case of VHF and HF, not used, whether with intent or otherwise.

(Id. at 478.) However, the investigation did not otherwise reveal any apparent issues with the crew, nor did it indicate any problems with the plane's systems, maintenance, or cargo. (See Id. at 486-89.)

         Ultimately, the Annex 13 Investigation Team reported that it was simply “unable to determine the real cause for the disappearance of MH370.” (Id. at 489.) According to the report, this inconclusive result was primarily due to the lack of aircraft wreckage or data from any of the flight recorders-an acute absence of critical information that prevented investigators from definitively ruling in or ruling out any specific causes. (See Id. at 488-89 (“Without the benefit of the examination of the aircraft wreckage and recorded flight data information, the investigation was unable to identify any plausible aircraft or systems failure mode that would lead to the observed systems deactivation, diversion from the filed flight plan route and the subsequent flight path taken by the aircraft. However, the same lack of evidence precluded the investigation from definitely eliminating that possibility. The possibility of intervention by a third party cannot be excluded either.”).)

         The Annex 13 Safety Investigation was not the only review of the potential causes of the Flight MH370 disaster; Malaysian authorities also launched a criminal investigation into Flight MH370's disappearance. As part of the criminal investigation, the Royal Malaysian Police seized a flight simulator from the home of the pilot in charge (see Safety Investigation Rpt. at 73), and analysis of this simulator revealed “that there were seven ‘manually programmed' waypoint coordinates . . . that when connected together, will create a flight path from [Kuala Lumpur International Airport] to an area south of the Indian Ocean through the Andaman Sea” (id. (footnote omitted)). However, the analysis “did not find any data that showed the aircraft was performing climb, attitude or heading manouevres, nor did [it] find any data that showed a similar route flown by MH370.” (Id.) In connection with its investigation, the Royal Malaysian Police also obtained statements “from the next of kin and relatives, doctors/care givers, co-workers, friends and acquaintances” of the crew members, and reviewed “financial records of the flight crew [and] CCTV recordings at [the airport in Kuala Lumpur, ]” along with “analy[zing] the radio transmission made between MH370 and ground Air Traffic Control.” (See Id. at 404.)[11]

         4. The Reorganization Of MAS And The Passage Of Act 765

         Malaysia Airlines System Berhad (referred to herein as “MAS”) is a “Government Linked Company” under Malaysian law, meaning that “it is a company in which the Government of Malaysia has a direct controlling stake.” (FSIA Mem. at 16.) Following the disappearance of Flight MH370, Khazanah Nasional Berhad-a political subdivision of the Government of Malaysia and its sovereign wealth fund-purchased the remaining ownership shares of MAS from minority shareholders, and MAS was delisted from the Malaysian stock exchange. (See Id. at 17.) The Malaysian government then enacted a law entitled the Malaysian Airline System Berhad (Administration) Act 2015 (“Act 765”), pursuant to which MAS was placed under administration and a new, separate entity-Malaysia Airlines Berhad (“MAB”)-was incorporated to operate as the national airline. (See id.) Among other things, Act 765 empowers MAS's Administrator to manage and compromise liabilities for the company (Act 765 §§ 9(1)(b-e)); defend MAS in litigation (id. §§ 10(g-h)); transfer assets from MAS to MAB (id. §10(o)); and liquidate the assets of MAS (id. §10(e)). (See Id. at 32- 33.) MAB assumed certain rights and liabilities from MAS, but under the terms of Act 765, MAB is not a successor corporation of MAS, see Id. § 25(1)(a), and has not assumed any liabilities in connection with Flight MH370, (see Ex. 5 to FNC Reply).

         5. Litigation In Malaysia

         As of the briefing of the threshold issues that are now before this Court, there are 27 civil cases pending in the High Court of Malaya at Kuala Lumpur (Civil Division) relating to the loss of Flight MH370, and these cases have been transferred to a single judge for coordinated proceedings. (Decl. of Saranjit Singh (“Singh Decl.”), Ex. 13 to FNC Mem, ECF No. 37-13, ¶ 7.) Of the 88 decedents represented in legal actions that are part of the instant MDL, 77 are also represented in the cases pending in Malaysia, and the defendants in the Malaysian cases include MAS, MAB, AGCS SE, and a number of Malaysian governmental entities. (See Id. ¶ 9.) Boeing has not been named as a defendant in any of the Malaysian cases.

         The Malaysian High Court has declined the plaintiffs' request to stay the Malaysian proceedings pending resolution of the instant forum non conveniens motion. (See id. ¶¶ 10-13.) In addition, the Malaysian High Court also denied the request of some of the attorneys who have filed MDL cases to be admitted to represent their clients in the Malaysian matters. (See Decl. of Tommy Thomas, Ex. 1 to Podhurst FNC Opp'n, ECF No. 68-1, ¶ 11.)

         B. The Design, Manufacture, And Maintenance Of The Aircraft

         The equipment for Flight MH370 was a Boeing 777-2H6ER (Serial Number 28420) that was designed and manufactured at Boeing's facility in Washington state in May of 2002, and was delivered to MAS in new condition on May 31, 2002. (See Barr Decl. ¶ 17; Fact Investigation Rpt. at 42.) It is undisputed that all of the records related “to the design, manufacture, assembly, testing, and certification of the 777 model aircraft” are located in Boeing's facilities in Washington, as are the Boeing employees who have knowledge of these matters. (See Barr Decl. ¶ 17.) In addition, records related to any customer support that Boeing may have provided to MAS regarding the plane are also located in the United States, possibly in California. (See id.)

         After delivery of the aircraft, the MDCA certified the plane as airworthy, and that certification was current at the time of Flight MH370's disappearance. (See Safety Investigation Rpt. at 409.) MAS was responsible for maintenance of the aircraft, and original records related to such work are located in Malaysia, as are the MAS employees who completed the work. (See Barr Decl. ¶¶ 12-13.) Review of MAS's maintenance files during the Annex 13 investigation indicated that MAS conducted regular maintenance on the aircraft, and that “all applicable Airworthiness Directives for mandatory compliance were complied with.” (See Fact Investigation Rpt. at 44; Safety Investigation Rpt. at 409-411.)[12] The only maintenance issue that the Annex 13 Investigation revealed was that the battery on the plane's solid state flight data recorder underwater locator beacon was overdue for replacement. (See Safety Investigation Rpt. at 183.)


         A. The Commencement Of Litigation In The United States

         In early 2016, many of the legal representatives or beneficiaries of passengers who had perished on Flight MH370 initiated litigation in the United States related to the disappearance of the flight-a total of 40 cases were initially filed in four different locations (the District of Columbia, California, New York, and Illinois). (See Sch. A to Transfer Order, ECF No. 1; Sch. CTO-1 to Conditional Transfer Order (“CTO-1”), ECF No. 2.) On June 6, 2016, the JPML centralized all proceedings regarding the disappearance of Flight MH370 in this Court (see Transfer Order), and issued orders transferring the pending cases to this Court for coordinated pretrial proceedings (see Id. at 3; CTO-1 at 1). After the MDL was created and the initial transfers took place, two additional cases were filed-one in the District of South Carolina, and another in the Western District of Washington-and those two cases were also transferred to this Court. (See Conditional Transfer Order, ECF No. 57, at 3.)

         1. The Plaintiffs

         For the purpose of the instant threshold motions, Plaintiffs have self-divided into two groups, with one group consisting of legal representatives/beneficiaries who are represented by the law firms of Podhurst Orseck, P.A., and Wisner Law Firm P.C. (collectively, the “Podhurst Plaintiffs”), and the second group consisting of similar individuals represented by Motley Rice LLC, and Spagnoletti & Co. (collectively, the “Motley Rice Plaintiffs”). The Podhurst Plaintiffs can be further subdivided into two groups, with the first consisting of the plaintiffs in two cases brought against MAS and MAB under the Montreal Convention, [13] and the second consisting of the plaintiffs in 32 cases that assert state law wrongful death and products liability claims against Boeing.[14] (See infra Part II.A.3.) The Motley Rice Plaintiffs can similarly be subdivided into groups on the basis of the claims they are asserting. (See infra, Part II.A.3.) One group of Motley Rice Plaintiffs has brought claims under the Montreal Convention against MAS and MAB, and their complaints additionally name reinsurers AGCS SE and Haagen as defendants.[15] A second group of Motley Rice Plaintiffs have filed suits that assert state law wrongful death and products liability claims against Boeing.[16] The final Motley Rice Plaintiffs group consists of a single case that has scores of named plaintiffs and asserts claims related to 44 of the Flight MH370 decedents.[17] This group asserts both Montreal Convention claims and wrongful death/products liability claims against all of the defendants.

         The Podhurst Plaintiffs are citizens and residents of a variety of countries-four are citizens of the United States; one is a resident of the United States; and 24 are citizens and residents of India, Australia, or China. (See Podhurst FNC Opp'n. at 21- 22; see also infra, Part IV.A.2; IV.B.2.) The Podhurst Plaintiffs represent, or are otherwise related to, 62 of the passengers of the fateful Flight MH370, only one of whom was a citizen of the United States. The rest of the decedents who are referenced in the Podhurst Plaintiffs' complaints are citizens and/or residents of India, Australia, Indonesia, Japan, and China. (See Podhurst FNC Opp'n at 21-22.)

         Two of the Motley Rice Plaintiffs are citizens of the United States (see Compl., Keith v. The Boeing Co., 17cv0518, ECF No. 1, ¶ 1; Compl., Smith v. Malaysia Airlines Berhad, 16cv0439, ECF No. 1, ¶ 39), and one appears to be a citizen of Malaysia (see Notice of Removal, Kanan v. The Boeing Co., 16cv1159, at 6), while the remainder appear to be citizens of China (see Compl., Zhang v. Malaysia Airlines Berhad, 16cv1048, ECF No. 1, ¶¶ 42, 44-84). Of the decedents who are referenced in the Motley Rice complaints, two are United States citizens who were residents of China, and one is a lawful permanent resident of the United States who was living in China at the time of Flight MH370's disappearance. (See Pls.' Resp. to Def. MAS's Montreal Conv. Mot. (“Motley Rice Montreal Convention Opp'n”), ECF No. 66, at 6.) One appears to be a citizen of Malaysia, and the remainder appear to be citizens of China. (See Kanan Notice of Removal at 6; Zhang Compl., ¶¶ 42, 44-84.)

         2. The Defendants

         The various complaints that comprise this MDL name one or more of five defendants. Defendants MAS and MAB are based in Malaysia, while Boeing's commercial aircraft operations are based on the west coast of the United States, in Washington state. (See Part I.B., supra.) Four of the pending complaints also name as a defendant AGCS SE, alleging that it is an insurer of MAS; AGCS SE contends that it is a “Societas Europaea”-organized corporation that exists under the laws of the European Union, and that it maintains its principal place of business in Munich, Germany. (See AGCS SE Pers. Juris. Mot. at 9.)[18] The final defendant-Haagen-is an executive of AGCS SE; he is named as a defendant in two complaints. (Id.)

         3. The Claims

         As noted above, the complaints consolidated in this MDL assert two different types of claims: Montreal Convention claims against MAS and MAB (and in some cases, their insurers), and state law wrongful death and products liability claims against Boeing.

         a. The ...

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