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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 921

## Text

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

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

a

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

+
7

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

_ *
a4

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,

2

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?

SS

Statement
F
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.

4

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.

5

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
Attorney General of the
State of New York Pro Se

Samvet A. HrrsHowrrz
First Assistant Attorney General

Davin L. Brrcx
Assistant Attorney General
of Counsel

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2357%3A3. Public record. Not legal advice.