Opposition — Mizokami Bros. of Arizona, Inc. v. Baychem Corp.

Court, U.S, ~\

aT

DEC 27 1977

MICHAEL RODAK, jr.

In THE A __.

Supreme Court of the United States

OctoBeR TERM, 1977

No. 77-741

MIZOKAMI BROS. OF ARIZONA, INC., an Arizona corporation,

Pettitoner,

v.

BAYCHEM CORPORATION, a Delaware and New Jersey corpo-

ration; BAYER DE MEXICO, S.A., a corporation of the United

States of Mexico; and BAYER AG, a corporation of the Federal

Republic of Germany,

Respondents.

— —

———— —_

BRIEF OF BAYCHEM CORPORATION IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

S. THomMas CHANDLER

1110 Transamerica Building

177 North Church Avenue

Tucson, Arizona, 85701

Attorney for Respondent,

Of Counsel: Baychem Corporation

JAcK REDHAIR

Rospert E. LUNDQUIST

CHANDLER, TULLAR, UDALL & REDHAIR

1110 Transamerica Building

177 North Church Avenue

Tucson, Arizona 85701

a.

TABLE OF CONTENTS

PAGE

ee er IED nc cucveeseceseeséucesees ii

ty SID cc ncntageteecnscseuseéios l

STATEMENT OF THE CASE ......... neasecnneeed ie OU

REASONS FOR DENYING THE WRIT .............. 9

I, A District Court Has INHERENT DISCRE-

TIONARY POWER TO DISMISS A COMPLAINT ON

THE Basis oF Forum Non Conveniens, Nor-

WITHSTANDING 28 U.S.C. § 1404 (a) (1976) 9

II. THe District Court Dip Not Asuse Its

DISCRETION IN DISMISSING THE CASE AS

AGAINST RESPONDENT BAYCHEM ON THE

Grounp oF Forum Non Conveniens; THE

NINTH Crrcu1t Court oF APPEALS APPLIED

THE PROPER STANDARD IN REVIEWING THE

District Court’s DECISION AND AFFIRMANCE

Wee EE 3.4 di-0c oe dbcbbuneasdedeutess 12

A. Construction of the Pleadings and Other

Materials Presented to the District Court

on a Motion to Dismiss for Lack of Per-

sonal Jurisdiction or for Forum Non Con-

GET - cdéctdabbed ahasietcecchébenes 12

B. The District Court’s Dismissal of this Case

as Against Respondent Baychem on the

Ground of Forum Non Conveniens Was

Not an Abuse of Discretion ............ 14

III. THere Are No SrectAL or IMPORTANT REa-

SONS FOR GRANTING A WRIT OF CERTIORARI... 18

ED Cu ced neue cae beds OVeseieabecnees 19

APPENDIX

ii

TABLE OF AUTHORITIES

PAGE

CASES:

B. M. Heede, Inc. v. West India Machinery & Sup-

ply Co., 272 F.Supp. 236 (S.D.N.Y. 1967) .... 11

Burt v. Isthmus Development Co., 218 F.2d 353,

(5th Cir.), cert. denied, 349 U.S.922 (1955) .... 12

Collins v. American Automobile Insurance Co., 230

ee See EE ES GED oc cccvsvceececneees 10-11

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

cert. denied, 423 U.S.1052 (1976) ............ 9

Gross v. Owen, 221 F.2d 94 (D.C. Cir. 1955) ..... 10

Gulf Oil Corp. v. Gilbert, 33C U.S.501 (1947) .14, 15, 18

Harbolt v. Carpenter, 536 F.2d 791 (8th Cir. 1976) 11

Heffman v. Goberman, 420 F.2d 423 (3d Cir. 1970) 18

Ireland v. Woods, 246 U.S.323 (1917) .......... 18

J. I. Case Co. v. NLRB, 321 U.S.332 (1944)...... 18

J. F. Pritchard & Co. v. Dow Chemical of Canada,

Ltd., 462 F.2d 998 (8th Cir. 1972). ..9-10, 11, 17, 18

Jensen v. McInerney, 299 F.Supp. 1309 (D.V.1., 13

DD <cuvdenddedh eed nansewneedevessoceneess

Kisko v. Penn Central Transportation Co., 408 F.

Se. Sire CHG. BO, BESO ccccsccvvccccvcces 11

Norwood v. Kirkpatrick, 349 U.S.29 (1955) ..... 10

Paper Operations Consultants International, Lid. v.

SS Hong Kong Amber, 513 F.2d 667 (9th Cir.

PP eee 9, 14, 18

Prack v. Weissinger, 276 F.2d 446 (4th Cir. 1960) 10

Rogers v. Helvering, 320 U.S.410 (1943) ........ 18

=

iii

PAGE

Schwartz v. Schwartz, 103 Ariz.562, 447 P.2d 254

DE ¢40cakednts ks beedateereeceeseteesee 16

Timberlane Lbr. Co. v. Bank of America, N.T. &

S.A., 549 F.2d 597 (9th Cir. 1976) ........... 13

United States v. Orshek, 164 F.2d 741 (8th Cir.

EE hae E4 56 ceee bane wake CHkGs 6nd dckacnes 13

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

(2d Cir.), cert. denied, 352 U.S.871 (1956) ..10, 11

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

DE 344d46n4ceSshGeyessaCeirunresdonaddas 10

STATUTES AND RULEs:

uk Sl errr reer 9,14

Lg RI a ora a ne ge 18

Pan Be Gav. ©. BS CRE), CB) 2c ccccccccccccce 12

OTHER AUTHORITIES:

1 J. Moore, Feperat Practice § 0.145 (2d ed.

SE ee ee errr rT rere 10

5 C. Wricut & A. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1363 (1969) ............00000s 12

15 C. Wricnt, A. MILLER & E. Cooper, FEDERAL

PRACTICE AND PROCEDURE § 3828 (1976) ...... 10

In THE

Supreme Court of the United States

OctTosER TERM, 1977

No. 77-741

M1zoKAMI Bros. OF ARIZONA, INc.,

an Arizona corporation,

Petitioner,

Vv.

BAYCHEM CoRPORATION, a Delaware and New Jersey cor-

poration; BAYER pE Mexico, S.A., a corporation of the

United States of Mexico; and Bayer AG, a corporation

of the Federal Republic of Germany,

Respondents.

dé.

.s

BRIEF OF BAYCHEM CORPORATION IN OPPOSI-

TION TO PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

I. Whether a district court has inherent discretionary

power to dismiss a civil complaint on the basis of forum

non conveniens where the only proper forum is in a foreign

country.

II. Assuming the answer to the first question is posi-

tive, whether the district court abused its discretion in dis-

missing the complaint against Respondent Baychem on the

ground of forum non conveniens where (a) allegedly Peti-

tioner is an Arizona corporation with a subsidiary in Mex-

ico who entered into agreements in Mexico concerning the

2

financing of crops grown in Mexico; (b) the claim arose out

of the sale of an insecticide in Mexico, where alleged mis-

representations were made by a Mexican citizen or citizens

.o another Mexican citizen or citizens concerning the ac-

ceptability by the United States and Canada of bell peppers

on which the insecticide was used; (c) it was conceded in

the district court that the law of Mexico would apply to

the case, and the complaint refers to and relies on the ap-

plicability of Mexican law; (d) most of the witnesses neces-

sary for Respondents to defend this case are citizens of

Mexico and beyond the process of the courts of the United

States; and (e) the only matters forming a nexus between

the forum in Arizona and the alleged wrong are that Peti-

tioner resides in the forum, Respondent Baychem does

business in the forum (in matters unrelated to the cause of

action), and some of the peppers grown by Petitioner’s

business associates in Mexico were denied entry to the

United States at a border station located in the forum.

(The matters raised by Petitioner’s Questions Pre-

sented III, IV and V concern minimum due process con-

tacts necessary for in personam jurisdiction over the other

respondents. Respondent Baychem will defer to those par-

ties for responses to these questions. )

STATEMENT OF THE CASE

Petitioner’s complaint was filed below in October, 1973

(R. 6). Respondents timely filed motions to dismiss based

on lack of in personam jurisdiction and on forum non con-

veniens (R. 71, 123 and 159). Numerous affidavits were

filed by all parties, voluminous interrogatories were sub-

mitted and answered, and requests for production of docu-

ments were filed and complied with. The record alone in

this case consists of over 1,400 pages plus hundreds of

pages of exhibits filed as attachments to answers to inter-

3

rogatories. It is on these affidavits, interrogatory answers

and exhibits, and on memoranda and arguments of counsel

that the District Court for the District of Arizona based

its ruling herein and entered its judgment on May 27, 1975.

Transcript of Hearing on the Motions to Dismiss at 43

(Supplemental Designation of Record on Appeal). Con-

trary to Petitioner’s assertion which is inherent throughout

its brief but is not specifically stated until page 23 thereof,

in ruling on a motion to dismiss for lack of personal juris-

diction or on the basis of forum non conveniens, the “plead-

ings and other material” (Petition at 23, emphasis added),

are not to be construed most favorably to the plaintiff or

taken as true, but, rather, in considering such motions, the

district court is to view the affidavits, interrogatory

answers, and other evidence submitted in determining the

facts to which the applicable legal principles are then

applied. See III. A, infra. The district court determined

the facts necessary for analysis under the applicable prin-

ciples and, in the exercise of its discretion, dismissed the

case as to all parties on the ground of forum non conveniens,

and as to Bayer AG and Bayer de Mexico on the ground

of lack of in personam jurisdiction. The Ninth Circuit

Court of Appeals applied the appropriate standard of

review and affirmed the district court in the opinion attached

in the appendix to the Petition at pages A-1 through A-4.

There are no special or important reasons for granting a

writ of certiorari in this case.

Petitioner’s complaint alleged losses due to the failure

of a portion of a crop grown in Mexico to gain entry into

the United States, because the crop, bell peppers, contained

a residue of a pesticide called Tamaron. These bell peppers

were grown, harvested and shipped in Mexico by a Mex-

ican grower or growers allegedly financed by Petitioner’s

Mexican subsidiary corporation.

4

Tamaron was manufactured by Baychem. Baychem is

a once-removed subsidiary of Bayer AG. Bayer de Mexico

is a corporation formed under the laws of Mexico and is

also a once-removed subsidiary of Bayer AG.

Contrary to Petitioner’s assertion that “Bayer AG dom-

inated and controlled its subsidiary, Baychem” (Petition

at 5), the evidence adduced below did not establish this, nor

does Petitioner’s citation to R. 1265-1270 support this alle-

gation. That citation is to a document entitled “Plaintiff's

Summary of Defendants’ Answers to Interrogatories” and

is merely Petitioner’s characterization of what it would like

to have seen the trial court draw from those answers. Obvi-

ously, the trial court did not draw these conclusions, as

indeed it should not have, since the Bayer AG-Baychem

relationship involved only those incidents which are normal

between a parent and subsidiary (R. 93-95, 97, 102, 104,

243, 287, 301, 314, 346, 359, 361, 366, 1008, 1010-11, 1019).

The fact remains that they are independent corporations.

Furthermore, Petitioner’s allegation that Baychem and

Bayer de Mexico are the agents of each other and therefore

that the acts of Bayer de Mexico and Baychem became

binding on each other is an argument not presented below

and not supported by any legal authority. The evidence set

forth in the citations listed by Petitioner establishes only

that Baychem entered into an agreement with Bayer de

Mexico, written in Spanish, which permitted the latter to

solicit orders for the former’s products. Any such order

procured was noi to be binding on Baychem until it had

Baychem approval, the prices of Baychem’s products were

subject to change without notice, and Bayer de Mexico

was in no way authorized to bind Baychem. (There is no

evidence that Bayer de Mexico ever procured orders pur-

suant to this agreement.) This “agency” certainly is not

such that the acts of “Bayer de Mexico and Baychem . . .

became binding on each other” (Petition at 6).

5

The pepper crop was grown in Mexico in 1973. Tamaron

insecticide was manufactured in the United States by Bay-

chem and sold to Bayer AG.’ Bayer AG in turn sold it

to Bayer de Mexico. Bayer de Mexico in turn distributed

Tamaron in Mexico through a completely independent

Mexican entity called Vamex, who in turn allegedly sold

it to the Mexican growers. Thus, the cause of action arose

out of a sale of the pesticide in Mexico between citizens of

Mexico. Central to the claim are the representations of

employees of Vamex to the Mexican growers. The affidavits

cited by Petitioner show these representations to involve

what may have been said by representatives of Vamex to

the growers, what may have been said by representatives

of Bayer de Mexico to the growers, what may have been

said by Bayer de Mexico to Vamex concerning the insecti-

cide, and what may have been said by Vamex to the growers

about what the employees of Bayer de Mexico had said to

Vamex concerning the insecticide.

The assertion on page 6 of the Petition that Petitioner,

rather than the Mexican growers, had purchased the Tama-

ron from Vamex was not raised below and there is no sup-

port for it in any of the materials presented to the Court

ychem sent a document entitled “Technical Data Sheet” under

heading” Chemagro, a division of Baychem, dated Apri 1972 to

Bayer AG*(R. 314 & attached exhibit). In bold letters at the top,

the document declared “FOR EX IMENTAL USE ONLY.”

Id. It further declared that “Monitor [Tamaron] is available for

tasting & Co Seneiene Sine below. Wis required that the nature

of a contemplated project be specified when samples.” Jd.

Yn this. docu

6

below. The Record at 1049 merely refers to a “consolidated

financial statement” for the 1972-73 growing season which

claimed insecticide as an expense by the growers and

the Record at 1060 is simply unrelated to any such argu-

ment. Furthermore, Petitioner answered an interrogatory

below by stating the contrary position that it bought crops

“through” its Mexican subsidiary (R. 1045).

Petitioner states:

“The Respondents knew that such Tamaron was

being purchased by Petitioner for use on peppers

grown for export into Arizona and for consumption

in the United States and Canada . . . [and] both

expressly and impliedly warranted that Tamaron

was suitable for use on Petitioner’s bell peppers in-

tended for importation into Arizona.” Petition at 7.

The only citations to the record offered in support of this

assertion are to Petitioner’s complaint. The extent of dis-

covery and litigation subsequent to the filing of the com-

plaint is manifest from the size of the record. As noted

below, the allegations of Petitioner’s complaint are not to

be taken as true under such circumstances, Indeed, as to

Baychem, the uncontroverted evidence before the district

court establishes that Baychem did not have such knowl-

edge, nor did it warrant anything to anyone other than

what was expressed in its technical data sheets to Bayer

AG (see n.1, supra).

Petitioner spends numerous paragraphs detailing “the

events which occurred in Arizona” in its brief at 7-9. The

only event of possible significance which occurred in Ari-

zona is that when small portions of the peppers reached

the United States border, and later Canada, they were

denied entry because they contained a residue of Tamaron.

The remainder of Petitioner’s assertions are merely at-

tempts to manufacture as many “events” as possible, which

7

are in reality merely incident to the rejection, and which

could have no possible effect on the issues here involved.

Moreover, many of these asserted “events” have no support

in the record.

Petitioner further asserts in its statement of the case

that the convenience of the witnesses iavors Arizona, This

statement is not correct—the convenience of Petitioner’s

witnesses may favor Arizona. Respondent Baychem would

have been precluded from defending this case altogether

had the district court accepted jurisdiction. Although

Petitioner recognizes that “some other testimony of events

occurring in Mexico may be needed ... ”, Petition at 10,

it claims that both the quantity and quality of testimony

concerning events in Arizona will be greater than that con-

cerning the events in Mexico. This would surely be the case

had this matter been tried in the District of Arizona and

for good reason—witnesses necessary for Respondent Bay-

chem’s defense, such as the Mexican growers, employees of

Vamex, and other potential witnesses would have been be-

yond the subpoena power of the courts of the United

States. An absent witness produces no quantity or quality

evidence.

Petitioner asserts that the “short statute of limitations in

Mexico has run (1278, 1404)” (Petition at 10). The only

evidence presented before the district court concerning the

Mexican statute of limitations consisted of an affidavit of

a Mexican lawyer filed by Respondents giving the opinion

that the statute had not run (R. 163-169); Petitioner in

response thereto filed a letter authored by another Mexican

lawyer which contended that a different Mexican statute

applied and that this statute had in fact run out. Thus, it is

unclear whether the statute has run in Mexico. In any

event, Petitioner has made no attempt to bring an action

in Mexico, Furthermore, Respondent Baychem offered to

waive the statute of limitations in Mexico in connection

8

with the appeal to the Ninth Circuit Court of Appeals if

in fact the statute had run (Appendix at la).

Petitioner’s attack on the opinion of the Ninth Circuit

Court of Appeals in this matter is unavailing. That court,

faced with this record, the briefs filed therein, and apply-

ing the correct standard of review in such a matter merely

affirmed that the district court did not abuse its discretion

in this case. It is readily apparent that the Ninth Circuit’s

statements that all transactions between the parties, as well

as the claim itself, arose in Mexico and that the only effect

alleged in Arizona was the loss to Petitioner by the failure

of the vegetables to gain entry into this country are true.

Petitioner’s novel assertion that it, while in Arizona, pur-

chased the Tamaron from Vamex, and that it had not been

purchased by the Mexican growers from Vamex, is not

supported by the record. Moreover, it is raised here for the

first time. This contention, as well as the contention that

Baychem sold the Tamaron knowing that some of it would

be imported into Arizona on Petitioner’s peppers, was dealt

with above. Beyond this, however, Petitioner borders on the

scandalous, when it implies that Baychem had recommended

Tamaron (Monitor 4) for use on bell peppers to American

farmers even though it had not been properly registered

in the United States, but that Baychem “had not . . . been

caught” (Petition at 12). There is no support for such an

outlandish assertion. The citation to the record there con-

tained is meaningless.

Petitioner carries its pettifoggery one step further when

it asserts that the Ninth Circuit Court of Appeals confused

Baychem, the U.S. subsidiary, with a foreign corporation.

Anyone reading a pleading in this case can determine other-

wise, and it has never been asserted otherwise. The state-

ment of the Ninth Circuit quoted by Petitioner in support

of this unusual assertion was preceded by an entire para-

graph which gives it its meaning:

9

“The Plaintiff falls back on its United States Citi-

zenship as the sole and only possible basis for suing

these Defendants in a Court of the United States.

This is not enough. In an era of increasing inter-

national commerce, parties who choose to engage in

international transactions should know when their

foreign operations lead to litigation they cannot ex-

pect always to bring their foreign opponents into a

United States forum when every reasonable con-

sideration leads to the conclusion that the site of the

litigation should be elsewhere.” Appendix to the

Petition at A-4.

This statement was obviously a general reference to for-

eign defendants in commercial situations involving personal

jurisdiction questions and not to Baychem.

The other assertions advanced by Petitioner in this sec-

tion of the brief have been previously discussed and will not

be belabored here.

REASONS FOR DENYING THE WRIT

I

A DISTRICT COURT HAS INHERENT DISCRETIONARY

POWER TO A COMPLAINT ON THE BASIS OF

FORUM NON CONVENIENS, NOTWITHSTANDING 28 U.S.C

§ 1404(a) (1976).

Notwithstanding the passage of 28 U.S.C. § 1404(a)

(1976) in 1948, the district court retains the inherent dis-

cretionary power to refuse jurisdiction on the ground of

forum non conveniens. Fitzgerald v. Texaco, 521 F.2d 448

(2d Cir. 1975), cert. denied, 423 U.S. 1052 (1976) ; Paper

Operations Consultants International Ltd. v. SS Hong

Kong Amber, 513 F.2d 667 (9th Cir. 1975) ; J. F. Pritchard

& Co. v. Dow Chemical of Canada, Ltd., 462 F.2d 998 (8th

10

Cir. 1972); Yerostathis v. A. Luisi, Ltd., 380 F.2d 377

(9th Cir. 1967); Prack v. Weissinger, 276 F.2d 446 (4th

Cir. 1960); Vanity Fair Mills, Inc. v. T. Eaton Co., 234

F.2d 633 (2d Cir.), cert. denied, 352 U.S. 871 (1956);

Gross v. Owen, 221 F.2d 94 (D.C. Cir. 1955); 1 J. Moore,

FEDERAL Practice { 0.145 (2d ed. 1975). 15 C. Wricut,

A. MILLer & E. Cooper, FEDERAL PRACTICE AND PROCE-

DURE § 3828 (1976).

Petitioner relies on a statement from Norwood v. Kirk-

patrick, 349 U.S. 29 (1955) to the effect that 28 U.S.C.,

§ 1404(a) eliminated dismissal of an action for forum non

conveniens. However, that case involved no foreign parties

and no foreign transactions. The only issue before this

Court in Norwood was whether the case should have been

transferred from one district court to another district

court where the factors which led to the transfer order

would not have been a sufficient showing of inconvenience

to warrant dismissal for forum non conveniens prior to

1948. This case held merely that the statute was “intended

to permit courts to grant transfers upon a iesser showing

of inconvenience” than that required by the doctrine of

forum non conveniens, 349 U.S. at 32, and that the order of

transfer was proper. Norwood, therefore, does not conflict

with the Ninth Circuit’s finding in this case that, because

the district court does not have the power to transfer this

case to the proper jurisdiction, Mexico, it has the inherent

power to refuse the case after analysis under the stricter

requirements of forum non conveniens.

Petitioner's assertion that there is a “conflict in the cir-

cuits” involving this question is shown untrue by an exami-

nation of the very cases cited by Petitioner. None of them

invoived a contention that a foreign country was the proper

venue. Collins v. American Automobile Insurance Co.,

230 F.2d 416 (2d Cir. 1956) reversed a dismissal of a

suit in the Southern District of New York where the dis-

11

missal was based on a finding that the proper venue was

in the Eastern District of Louisiana. Moreover, Collins

was decided by the Second Circuit about the same time

as it decided Vanity Fair, supra, and the latter case held

precisely the opposite of what Petitioner contends the

former case stands for. It is obvious that the Second

Circuit dealt with different issues in the two cases.

Similarly, B. M. Heede, Inc. v. West India Machinery

& Supply Co., 272 F. Supp. 236 (S.D.N.Y. 1967), involved

a denial of a motion to dismiss or transfer to the District

of Puerto Rico for forum non conveniens. Harbolt v.

Carpenter, 536 F.2d 791 (8th Cir. 1976), reversed a dis-

missal of a suit in the Western District of Missouri jor

improper venue upon a finding that the proper venue was

in the District of Kansas. Moreover, the Eighth Circuit

did not overrule the previous Eighth Circuit case, J. F.

Prichard & Co., supra, which held that the trial court has

discretionary power to dismiss for forum non conveniens

where a foreign venue was proper. Kisko v. Penn Central

Transportation Co., 408 F. Supp. 984 (M.D. Pa. 1976),

granted a motion to transfer between district courts.

Thus, the district court has inherent power to dismiss

a case for forum non conveniens where, after a proper

analysis, it finds a foreign venue required. There is no

conflict among the circuit courts concerning this point.

12

II

THE DISTRICT COURT DID NOT ABUSE ITS DISCRE-

TION IN DISMISSING THE CASE AS AGAINST RESPON-

DENT BAYCHEM ON THE GROUND OF FORUM NON

CONVENIENS; THE NINTH CIRCUIT COURT OF APPEALS

APPLIED THE PROPER STANDARD IN REVIEWING THE

DISTRICT COURT’S DECISION AND AFFIRMANCE WAS

PROPER.

A. Construction of the Pleadings and Other Ma-

terials Presented to the District Court on a Motion to

Dismiss for Lack of Personal Jurisdiction or for Forum

Non Conveniens.

Petitioner contends at page 23 of the Petition that plead-

ings and “other material should be construed favorably to

the Plaintiff when considering a Motion to Dismiss based

on lack of personal jurisdiction or proper forum.” The very

citations contained in the Petition at this point show this to

be incorrect. 5C. WricHTt AND A. MILLER, FEDERAL PRAc-

TICE AND ProcepuRE § 1363 (1969), describes motions

under Fed. R. Civ. P. 12 (b) (2) (lack of in personam juris-

diction) and (3) (improper forum), as defenses by way of

abatement which do not go to the sufficiency of the pleading.

Id. at 654. The burden is on the pleader to establish personal

jurisdiction. Jd. Thus such a motion to dismiss is to be

decided by the trial court in the same manner as any other

“speaking motion,” namely, by examination of the discovery

filed in court, affidavits, etc. With respect to a forum non

conveniens motion, however, the district court and the Ninth

Circuit properly placed the burden of showing improper

venue on movant Baychem. /d. at 655; Burt v. Isthmus

Development Co., 218 F.2d 353, 357 (Sth Cir.), cert. denied,

349 U.S. 922 (1955). Both the district court and the

Ninth District recognized the extreme burden placed upon

———EE

15

Respondents. However, this burden does not mean that

Petitioner’s pleadings and “other materials” cannot be over-

come by suitable evidence presented to the district court.

This principle is exemplified by Jensen v. McInerney, 299

F.Supp. 1309 (D. V. I. 1969), cited by Petitioner, where

defendant’s motion to dismiss for lack of personal juris-

diction failed:

“The plaintiff contends that it is clear from the

allegations of his complaint that the defendant, at

the time of the plaintiff’s injury, was transacting

business and contracting to supply services or things

in this territory .... these allegations may of course,

later be proved by the defendant to be untrue, but

since defendant has not asked leave at this stage of

the case to offer evidence to controvert them, I must

take them to be true for purposes of the present

motion.” 299 F.Supp. at 1312 (emphasis added).

Obviously a defendant may challenge the allegations of a

complaint in the context of a forum non conveniens or per-

sonal jurisdiction motion. The record in this case shows

that Petitioner’s allegations were indeed challenged and

overcome.

The other case cited by Petitioner, United States v.

Orshek, 164 F.2d 741 (8th Cir. 1947), stated only that it

was the defendant’s burden to show that neither of them

resided in that division of the district court if they were

to challenge venue under the Miller Act, and that since de-

fendants had not produced any affidavits or other evidence,

and since both had been personally served within the dis-

trict, venue was held to be proper. See also Timberlane Lbr.

Co. v. Bank of America, N.T. & S.A., 549 F.2d 597 (9th

Cir. 1976) (Summary judgment treatment not required

for “speaking motion” to dismiss for lack of subject matter

jurisdiction).

14

Therefore, the district court decided the forum non

conveniens issue on the basis of the facts it found from the

record herein. The application of the doctrine of forum non

conveniens is entrusted to the sound discretion of the trial

court and may be reversed only if it constitutes an abuse

of discretion—it is not the reviewing court’s role to decide

how it would have ruled on the case had the facts been

presented to it. Papers Operations Consultants Internation-

al, Ltd., supra, 513 F.2d at 670.

B. The District Court’s Dismissal of this Case as

Against Respondent Baychem on the Ground of Forum

Non Conveniens Was Not an Abuse of Discretion.

The principles governing federal forum non conveniens

issues were set out in the opinion of Mr. Justice Jackson

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

are generally two areas of inquiry when a court is con-

fronted with a forum non conveniens motion (to be dis-

tinguished from a motion presented pursuant to 28 U.S.C.

§ 1404(a)): the private interests of the litigants and the

public interests. In assessing the interests of the litigants,

the factors relied on include plaintiff’s initial choice of

the forum; relative ease of access to sources of proof; avail-

ability of compulsory process for attendance of unwilling

witnesses and the cost of obtaining the attendance of will-

ing witnesses; possibility of view of the premises, if that

would be appropriate; questions as to the enforceability of

a judgment if one is obtained; relative advantages and ob-

stacles to a fair trial for the parties; and all other practical

considerations that make the trial of a case easy, expeditious,

and inexpensive. This may be described as the nexus be-

tween the forum and the alleged wrong. In assessing the

public interest, considerations include administrative diffi-

culties that follow from court congestion; a local interest

in having localized controversies decided at home and a

15

reluctance to burden the people residing in the forum with

a case having nothing to do with that forum; and the ap-

propriateness of having the trial of a diversity case in the

forum that is at home with the law that must govern the

case, rather than having a court in some other forum un-

tangle problems in conflicts of laws, and in law foreign to

itself. Gulf Oil Corp. v. Gilbert, supra.

Although the plaintiff’s choice of forum should rarely

be disturbed unless on the balance it would be unfair and

vexatious to the defendant to require him to litigate in that

forum, the burden of showing vexation and unfairness cer-

tainly is not overwhelming. In the case sub judice, Petition-

er’s choice of the District of Arizona as its forum could

only have been because it resided therein. This and the fact

that the bell peppers were rejected by a border station which

happened to be located in Arizona are the only facts con-

necting this case with the forum. This could hardly be called

a nexus between the forum and Petitioner’s case, On the

other hand, the district court was presented with facts that

showed that allowing the litigation to proceed in Arizona

would be patently unfair and vexatious to the defendants.

Concerning access to proof, the alleged misrepresentations

and warranties were made by Mexican citizens in Mexico

to other Mexican citizens. The laws and the statutes of

Mexico were relied on in the complaint and the violations

thereof were alleged to have occurred in Mexico. The wit-

nesses as to these matters obviously could not be compelled

to attend the trial of the case in Arizona, leaving Baychem

in the position of having to defend a case made up of evi-

dence produced by witnesses called by Petitioner, with no

compulsory process available to obtain evidence from others

who had knowledge of the allegations in order that they

could be made to testify for Baychem. From the size of

the record in this case, consisting mainly of discovery di-

rected towards the jurisdictional and forum non conveniens

16

issues, it is clear that more discovery would be had and

that many witnesses would be involved, most of whom

would be beyond process. These include people having direct

knowledge of the transactions which are the subject of the

complaint, most of whom were present in Mexico where

the Tamaron was allegedly sold in violation of Mexican

law, where the insecticide was allegedly warranted and mis-

represented to Mexican growers, where it was allegedly ap-

plied to Mexican crops pursuant to information furnished

by Mexican citizens to the Mexican growers, and where

such crops were subsequently harvested, packaged, and

shipped by Mexican residents to the United States. Fur-

thermore, with respect to Petitioner’s alleged damages, an

unidentified but substantial portion of the vegetables fi-

nanced by Mizokami and turned back at the border may

have been consumed in Mexico. (R. 1087-88) Although

the total number of witnesses concerning all of the above

aspects of the case can only be speculated, it is apparent that

the number would be substantial. None of them couid be

compelled to be in attendance in the United States, whether

in support of Petitioner’s or Respondents’ contentions. The

only jurisdiction where a trial of this matter would be fair

is Mexico.

Moreover, the complaint relies on Mexican law, and

based on Arizona’s choice of law principles, the law of Mex-

ico would apply to the allegations in any event. Schwartz

v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968). Neither

the parties nor the judge could offer clear translations and

opinions of that Mexican law which was considered in the

trial court. Transcript of the Hearing on Motions to Dismiss

at 44 [Supplemental Designation of Record on Appeal].

It would be both unjust and improper for the district court

inadvertently to apply Mexican law in a manner different

from that which would govern if the Mexican courts con-

ducted the trial. Mizokami can proceed in Mexico and that

is the only proper forum.

ee

17

With respect to the public interests of the forum, beyond

the manifest unfairness to all of the Respondents, the litiga-

tion of this case in the district court in Arizona would impose

an extreme burden on the resources of that court and the

community. Once again, most sources of proof and material

witnesses are located in Mexico; most witnesses are likely

to speak only Spanish; any documents related to the litiga-

tion are undoubtedly written in Spanish; and it is conceded

the case is to be governed by Mexican law. Thus, the lan-

guage barrier would be an additional hardship imposed upon

a district judge and an American jury attempting to under-

stand, interpret and evaluate Mexican citizens’ testimony

and documents written in Spanish. The translations of

questions and answers alone would automatically at least

double the time ordinarily required for the testimony in the

case. The case is so entirely Mexican that it brings to mind

the comment of the Eighth Circuit in J. F. Pritchard & Co.,

supra, where, after dismissing a plaintiff's complaint against

a Canadian defendant on forum non conveniens grounds

because the plaintiff’s Canadian subsidiary had contracted

with defendant and then had assigned its rights to the

plaintiff, the Court said:

“There was more than a Canadian nexus here. The

whole case is Canadian .. . . [Plaintiff] made his

bed in Canada; now he must lie in it if he wishes

to proceed.” 462 F.2d at 1002.

Beyond the appropriateness of this admonition to the Peti-

tioner here, it is simply unfair to Respondents to require

them to litigate in an American court this Mexican cause

of action which must be proved and defended against by

Mexican witnesses, documents, etc., and the trial of which

should rightfully be a burden carried by the courts of Mexi-

co rather than by the United States and the District of

18

Arizona. Gulf Oil Corp. v. Gilbert, supra; J. F. Pritchard

& Co. v. Dow Chemical of Canada, Ltd., supra; Paper

Operations Consultants International, Ltd. v. SS Hong

Kong Amber, supra; Hoffman v. Goberman, 420 F.2d 423

(3d Cir. 1970).

THERE ARE NO SPECIAL OR IMPORTANT REASONS

FOR GRANTING A WRIT OF CERTIORARL

Review on writ of certiorari is not a matter of right

but of sound judicial discretion. /reland v. Woods, 246 U.S.

323 (1917). Supreme Court Rule 19 provides that a writ

will be granted only where there are special and important

reasons therefor. It is to be exercised sparingly and only

in cases of gravity and importance, J. /. Case Co. v. NLRB,

321 U.S. 332 (1944); Rogers v. Helvering, 320 U.S. 410

(1943), since, if carelessly exercised, it might defeat the

very purpose of the Article creating the Supreme Court,

and the act creating the courts of appeals. There seems to

be no clearcut definition of what the term “special and

important reasons” means, but it would seem that Peti-

tioner would be obligated to call to the attention of the Court

some reason of importance that would justify the granting

of a petition for a writ of certiorari. Petitioner’s attempt

to make this case appear to be of particular significance

fails upon examination of the cases its Petition cites.

19

CONCLUSION

There are no special and important reasons for the

granting of a writ of certiorari in this case. There is no

conflict among the circuit courts concerning the legal prin-

ciples involved herein. The opinion of the Ninth Circuit

Court of Appeals is not in conflict with previous opinions

of this Court. The District Court for the District of Ari-

zona correctly applied the legal principles and weighed the

voluminous evidence presented to it before rendering its

decision, That decision was not an abuse of discretion.

Certiorari should be denied.

Respectfully submitted,

S. THomas CHANDLER

CHANDLER, TULLAR, UDALL

& REDHAIR

1110 Transamerica Building

177 North Church Avenue

Tucson, Arizona 85701

Attorney for Respondent,

Baychem Corporation

Of Counsel:

Jack REDHAIR

Rosert E. Lunpguist

CHANDLER, TULLAR, UDALL & REDHAIR

1110 Transamerica Building

177 North Church Avenue

Tucson, Arizona 85701

Appendices

la

April 14, 1977

The Honorable Walter Ely

Judge, U.S. Court of Appeals

1621 U.S. Courthouse

Los Angeles, California 90012

Re: Mizokami vs. Baychem

No. 752991

Dear Judge Ely:

With reference to your question, “Will the Baychem Corpo-

ration waive any applicable statute of limitations which

might be available if this litigation were filed in the country

of Mexico?” the answer is that Baychem Corporation will

waive any applicable statute of limitations which may or

might be available to Baychem Corporation if the United

States Court of Appeals for the Ninth Circuit affirms the

decision of the District Court, District of Arizona, and if

plaintiff in the above-captioned matter files in substance the

identical lawsuit in the country of Mexico.

Your very truly,

CHANDLER, TULLAR, UDALL & REDHAIR

JR/sa

ec: John F. Molloy, Esq.

Jack Brown, Esq.

Wright W. Crummett, Esq.