Opposition — Christovao v. Unisul-Uniao De Coop. Transf. De Tomate Do Sul Do Tejo

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In THE

ities

Supreme Court of the Unite 5

Ocroser Term, 1977 MICHAEL RODAK, JR., CLERK

No. 77-222

JosepH Curistovao, d/b/a Mercantum Trapine

CoMPaNy,

Petitioner,

against

Unisut-Untao De Coop. Transr. De Tomate Do Sut Do

Tro, §.C.R.L.; Cooperattva TransFormapora Dos Pro-

puctos Aaricotas Do Varte Do Sorram, S§.C.R.L.;

Cooperativa Acricora Do Vate Do Sapo, S.C.R.L.;

Coorgrativa Horto-Fruticota Do Roxo, 8.C.R.L.; Co-

OPERATIVA Acricota Do Mirra, S.C.R.L.,

Respondents,

and

AtTToRNEy GENERAL OF THE StaTe oF New York,

Intervenor.

Ce ind

On Peririon ror A Writ or CERTIORARI TO THE

APPELLATE Drvision OF THE SupreME CourRT OF

THE State oF New York, First Jupicta, Depart-

MENT

BRIEF FOR INTERVENOR IN OPPOSITION

Lovis J. Lerxow1Tz

Attorney General of the

State of New York Pro Se

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3447

Samvet A. HirsHow!tz

First Assistant Attorney General

Davin L. Brrcx

Assistant Attorney General

of Counsel

<i> 249 Press of Fremont Payne, Inc., 417 Canal St., N. Y.—966—6570

TABLE OF CONTENTS

PAGE

I NN iis ven anarieninannscis ehoabedas 2

PEE 2 Saw cuavadsteResbdacysannts «ceesses s 2

IE SPU os as ws cen an cab eede ba 2

Statement .......... SPE ES TES? & Ae OE ES 3

Petitioner’s Challenge to the New York Forum

Non Conveniens Statute is Insubstantial and

Is Foreclosed by Prior Decisions of This

Court, by the Trial Court’s Findings of Fact

and by Petitioner’s Failure to Raise the

Issue Properly in State Court ............. 3

I: linc ards tbe ekk he kekwo ib Cocebanccodes 6

TABLE oF AUTHORITIES

Cases:

Bailey v. Anderson, 326 US. 203 (1945) ............ 6

Bankers Trust Co. v. Martin, 51 A D 2d 411, 381 NYS

2d 1001 (1976) (3rd Dept. 1976) .............. 6

Boddie v. Connecticut, 401 U.S. 371 (1971) ........ 4

Dunn v. Blumstein, 405 U.S. 330 .............2605. 5

Fitzgerald: v. Texaco, Inc., 521 F. 2d 448 (2d Cir.

1975), cert. den. 423 U.S. 1052 (1976) .......... 4

Flagg v. Nichols, 307 N Y 96 (1954) ..............

Fry Roofing Co. v. Wood, 344 U.S. 157 (1952) ...... 5, 6

Grayson v. Harris, 267 U.S. 352 (1925) .......... ee

li TABLE OF CONTENTS

PAGE

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ...... 3

Harrison v. Capivary, Inc., 334 F. Supp. 1141 (E.D.

Ee ED wesinre csevewewesuivninnns Ubi Mee 4

Hulbert v. Chicago, 202 U.S. 275 (1906) ........+.+- 6

Missouri ex rel. Southern ~~ Co. v. Mayfield, 340

US. 1 (1950) ........ ST OCT E Lie Ee 4

Ortwein v. Schwab, 410 US. 656 (1973) ............ 4,5

Palmer Oil Corp. v. Amerada Corp., 343 U.S. 390

SEE. ELida ooep onde veneaeetentexesneeeenees 5

Portland R. Co. v. Railroad Commission, 229 U.S. 397

GE, ccminas das tvants babel cake wel deeds oe 5

Shapiro v. United Medical Service Inc., 15 N Y 2d 200

SOE * Wielecwe bel acekedared eet eebesdechetbene

Sosna v. Iowa, 419 U.S. 393 (1975) ..........eeeeee 5

United v. Kras, 409 US. 434 (1973) ................ 4,5

Vanity Fair Mills v. T. Eaton Co., 234 F. 2d 633 (2d

Cir.), cert. den. 352 U.S. 871 (1950) .......... 4

Yerostathus v. A. Luisi, Ltd., 380 F. 2d 377 (9th Cir.

EE débnub dds e8ehckdccebeel cibcceesadanes< +

Zucht v. King, 260 U.S. 174 (1922) ............00.. 5

Statutes Crrep

BP UE, Be 566 6h 0 6bks kn dksceccccde<ocbsnse 2

New York Civil Practice Law and Rules 327 ........ 3,5

IN THE

Supreme Court of the United States

Octoser Term, 1977

No. 77-222

JosepH Curistovao, d/b/a Mercantum TRaDING

ComPANny,

Petitioner,

against

Unisut-Untao De Coop. Transr. De Tomate Do Sut Do

Tezo, 8.C.R.L.; Cooperatrva TransFormMapora Dos Pro-

puctos Agricotas Do Vate Do Sorrara, 8.C.R.L.;

Coorzrativa AcGrico.a Do Vate Do Sano, S§.C.R.L.;

Cooprrativa Horto-Fruticota Do Roxo, 8.C.R.L.; Co-

OPERATIVA AGricota Do Mira, S.C.R.L.,

Respondents,

and

AtTorNEy GENERAL OF THE StaTE oF New York,

Intervenor.

On Peririon ror A Writ or CERTIORARI TO THE

AppeLutatTe Drvision or THE SupreME CourT oF

THE State oF New York, First Jupicia, Depart-

MENT

_ *

BRIEF FOR INTERVENOR IN OPPOSITION

Intervenor opposes the petition for a writ of certiorari

to review an order of the Appellate Division of the Su-

preme Court of the State of New York, First Judicial

Department, dated December 21, 1976, which affirmed the

order of the Supreme Court of the State of New York,

New York County, entered on August 4, 1976, which dis-

missed the complaint due to lack of personal jurisdiction

over the defendants and, with respect to jurisdiction ob-

tained under an order of attachment, because the forum

was not convenient.

Opinions Below

The opinion of the Supreme Court of the State of New

York is unreported and is annexed to the petition (Appen-

dix A, pp. la-4a). The opinion of the Appellate Division

of the Supreme Court of the State of New York, First

Judicial Department is reported at 55 A D 2d 561 and is

annexed to the petition (Appendix A, pp. 5a-lla). The

opinion of the New York Court of Appeals dismissing peti-

tioner’s appeal as of right to that court is reported at 41

N Y 2d 338 and is annexed to the petition (Appendix A,

pp. 1la-13a). Permission to appeal to the Court of Ap-

peals subsequently was denied by the Appellate Division

on April 12, 1977 and by the Court of Appeals on July 5,

1977. Those orders are as yet unreported and are an-

nexed to the petitioner’s appendix at pages 22a and 24a,

respectively.

Jurisdiction

The order of the Court of Appeals denying leave to

appeal is dated July 5, 1977. Petitioner purports to invoke

the jurisdiction of this Court pursuant to 28 U.S.C. § 1257

(3).

Question Presented

Is petitioner’s challenge to the New York forum non

conveniens statute insubstantial and foreclosed by prior

decisions of this Court, by the trial court’s findings of fact

and by petitioner’s failure to raise the issue properly in

State court?

Statement

The Statement of the facts described in pages 4-8 of the

brief of the respondents in opposition is deemed adequate.

The Court is respectfully referred to that statement.

Relevant Statute

‘*When the court finds that in the interest of substantial

justice the action should be heard in another forum, the

court, on the motion of ary party, may stay or dismiss the

action in whole or in part on any conditions that may be

~ just. The domicile or residence in the State of any party

to the action shall not preclude the court from staying or

dismissing the action.’’ New York Civil Practice Law and

Rules 327.

Reasons for Denying the Petition for Certiorari

Petitioner’s Challenge to the New York Forum

Non Conveniens Statute Is Insubstantial and Is

Foreclosed by Prior Decisions of This Court, by

the Trial Court’s Findings of Fact and by Peti-

tioner’s Failure to Raise the Issue Properly in

State Court.

As stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501

(1947) :

‘‘This Court, in one form of words or another, has

repeatedly recognized the existence of the power to

decline jurisdiction in exceptional circumstances’’

**We later expressly said that a state court ‘may in

appropriate cases apply the doctrine of forum non

conveniens.’ Broderick v. Rosner, 294 U.S. 629, 643;

Williams v. North Carolina, 317 U.S. 287, 294 n. 5.”

330 U.S. at 504.

Although in the application of its forum non conveniens

statute a state may not discriminate against a particular

kind of suit or discriminate against citizens of other states,

it may deny access to its courts for reasons of local policy

and its ‘‘acceptance or rejection of the doctrine of forum

non conveniens [is] a question of state law not open to

review here.’’ Missouri ex rel. Southern Ry. Co. v. May-

field, 340 U.S. 1 (1950).

The doctrine of forum non conveniens has often been em-

ployed by federal courts to dismiss an action where the

other available forum is that of a foreign country. See,

Fitzgerald v. Texaco, Inc., 521 F 2d 448 (2d Cir. 1975)

cert. den. 423 U.S. 1052 (1976); Yerostathus v. A. Lwuisi,

Ltd., 380 F 2d 377 (9th Cir. 1967); Vanity Fair Mulls v. T.

Eaton Co., 234 F. 2d 633 (2d Cir.) cert. den. 352 U.S. 871

(1950). (‘‘An American citizen does not have an absolute

right under all circumstances to sue in an American

Court.’’ 234 F 2d at 645-46); Harrison v. Capivary, Inc.,

334 F 2d 1141 (E.D. Mo. 1971). New York CPLR 327 is

New York’s codification of its doctrine of forum non

conveniens and presents no novel or undecided constitu-

tional issue. ‘

Where no fundamental interest is involved, this court

has held that an individual does not have a right to un-

fettered access to the courts notwithstanding the court’s

jurisdiction of the subject and the parties. See United v.

Kras, 409 U.S. 434 (1973). Ortwein v. Schwab, 410 U.S.

656 (1973).*

Petitioner has no more right to access to New York’s

courts than did Kras to the bankruptcy court or the

*In contrasting Kras’ position with that of the plaintiff in

Boddie v. Connecticut, 401 U.S. 371 (1971) cited by petitioner, the

Court noted that the ‘‘[g]overnment’s role with respect to the

private commercial relationship is qualitatively and quantitatively

different from its role in the establishment, enforcement, and dis-

solution of the marriage.” 409 U.S. at 445-46.

welfare recipient Ortwein to the Oregon appellate court.

Petitioner, in fact, does have a forum to which the trial

count found he had access.**

Although ‘‘appropriately defined and uniformly applied

bona fide residence requirements’? Dunn vy. Blumstein, 405

U.S. 330, 342, n. 13 (1972), are permissible, petitioner cites

no authority granting a resident a constitutional right to

access to the courts of his state of residence. See Ortwein

v. Schwab, swpra; United States v. Kras, swpra, Sosna

v. Iowa, 419 US. 393 (1975).

New York’s forum non conveniens statute is the same

proper exercise of its States’ function that has been previ-

ously upheld by this court. Review of that issue is fore-

closed by those prior decisions, and the petition should be

denied. See Palmer Oil Corp, v. Amerada Corp., 343 U.S.

390 (1952); Zucht v. King, 260 US. 174 (1922).

Petitioner’s real complaint is with the trial court’s find-

ing that the petitioner could receive a fair trial in Portugal

and that the nexus of events at issue would be more con-

veniently tried in Portugal for myriad reasons. (See deci-

sion of the court, petitioner’s appendix 2a-4a). This find-

ing was upheld by all of the Appellate Division judges.

Insofar as petitioner requests this court to review the ap-

plication of CPLR 327 to him, he requests the court to

review a factual determination of a State court, a request

that generally will not support a petition for certiorari,

see Fry Roofing Co. v. Wood, 344 U.S. 157 (1952) ; Grayson

v. Harris, 267 U.S. 352 (1952); Portland R. Co. v. Railroad

Commission, 229 U.S. 397 (1913).

Apart from the foregoing, the full record demonstrates

that petitioner did not present the constitutional claim al-

leged here in the trial court. Under New York Law, the

** The trial court conditioned its dismissal on respondents’ ac-

ceptance of service of process in Portugal, appearance in that court

and waiver of any statute of limitations defense.

issue was thus waived. See Shapira v. United Medical

Service, Inc., 15 N Y 2d 200 (1965); Flagg v. Nichols, 307

N Y 96 (1954); Bankers Trust Co. v. Martin, 51 A D 2d

411, 381 N Y S 2d 1001, 1004 (1976) (3rd Dept. 1976), and

has been held to preclude review by this Court. Bailey v.

Anderson, 326 U.S. 2038 (1945); Hulbert v. Chicago, 202

U.S. 275 (1906).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Dated: New York, New York

September 29, 1977

Respectfully submitted,

Louis J. Lerxowrrz