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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0098%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1035

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0098%3A4. Public record. Not legal advice.