Petition — Piper Aircraft Co. v. Reyno

8 0 we 8 4 8 “tore Court, U. $

QV 25 1980

No.

ee ee

IN THE

Supreme Court of the United States

\CTOBER TERM, 1980

Prrper AIRCRAFT COMPANY, Petitioner,

V.

GAYNELL REYNO, ef al., Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

CHARLES J. MCKELVEY

Counsel of Record

ANN S. PEPPERMAN

MCNERNEY, PAGE,

VANDERLIN & HALL

433 Market Street

P. O. Box 7

Williamsport, PA 17701

(717) 326-6555

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTION PRESENTED

Whether, in an action in federal district court

brought by foreign plaintiffs against American defend-

ants, the plaintiffs may defeat a motion to dismiss on

the ground of forum non conveniens merely by showing

that the substantive law that would be applied if the case

were litigated in the district court is more favorable to

them than the law that would be applied by the courts of

their own nation.'

' Parties to the proceeding in the United States Court of Appeals

for the Third Circuit were: Gaynell Reyno, as personal represen-

tative of the Estates of William Fehilly, Liam Stewart Fehilly,

William James McDougall Storm, David Vincent Moran, and Peter

Cunningham Scott; Piper Aircraft Corporation; and Hartzell Pro-

peller, Inc. Petitioner Piper Aircraft Corporation is a subsidiary of

Bangor Punta Corporation. Piper Aircraft Corporation has no sub-

sidiaries or affiliates.

Hartzell Propellor, Inc. is only nominally a Respondent to this

Petition and is filing its own Petition for a writ of certiorari to

review the judgment below.

iii

TABLE OF CONTENTS

PAGE

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STATEMENT OF JURISDICTION .........0000cseeeeeeeees 2

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iv

TABLE OF AUTHORITIES

CASES: PAGE

Alcoa Steamships Co., Inc. v. M/V Nordic Regent, No.

78-7054 (2nd Cir. February 25, 1980)............ 10, 13

Canada Malting Co., Ltd. v. Paterson Steamships, 285:

UB. SEU b ciru si nch nteaver cegvewabe 8, 9, 10, 12

Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735

COR ES LIF TD: iva 5 boc whee eb:sdaened supaarebans e's 15

Dahl vy. United Technologies, No. 79-2596/97/98/99

CRE, TETHER bis bc devo dbiedwordbebiedstccsccess 17

DeMateos v. Texaco, Inc., 562 F.2d 880 (2nd Cir.

SEE Nise diwedersdebonercepeead beeresgudoussr 8, 18

Farmanfarmaian v. Gulf Oil Corporation, 588 F.2d 880

GO ITE A oki bs skecbchedadicnpiasactsevene ne 13

Fitzgerald v. Westland Marine Corp., 369 F.2d 499 (2nd

Ct PURGE ssc bis Kesdpesewetaceberidsne eenn'e<

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

cert. denied, 423 U.S. 1052 (1976) ............. 8, 10, 15

Gulf Oil Corporation v. Gilbert, 330 U.S. 501

Ca ceaskns Lateaiashesee seeks 3, 7, 13, 14, 16, 19

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

Limited, 462 F.2d 998 (8th Cir. 1972) ...........5.

Klaxon Co. v. Stentor Electric Manufacturing Co., 313

SO RT MUTE 8.55 c'uian-44 CdR Sale SP Eb OMY be ce dip 'an

Koster v. Lumbermen Mutual Casualty Company, 330

Ly SURE 0k dc Civn eh cde eee a et eaehhl se'eeces

QN.D,. OMO 1977) ccvciccvessteccvccccsvcvcccies

Olympic Corporation v. Societe Generale, 462 F.2d 376

Ge ee NUM dtc ah wo FoR eewn ances beneeee 13, 15

Paper Operations Consultants International Ltd. v. SS

Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975)... 13

Table of Authorities Continued

CASES: PAGE

Swift & Co. Packers v. Companie Colombiana Del

Caribe, 339 U.S. 684 (1950) .........ceceeeeeeees 12, 16

The Kanto Maru, 112 F.2d 564 (9th Cir. 1940)

Van Dusen v. Barrack, 376 U.S. 613 (1964)

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No.

PiPpER AIRCRAFT COMPANY, Petitioner,

GAYNELL REYNO, ef al., Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals (App. A infra,

pp. la-38a) is not yet reported. The opinion of the

District Court (App. C infra pp. Ic-2l1c) is reported at

479 F.Supp. 727 (D.C. Pa. 1979).

2

JURISDICTION

The judgment of the Court of Appeals for the Third

Circuit was entered on July 24, 1980 (App D infra p.

4a), and amended by order dated September 15, 1980.

(App. B infra pp. 1b-2b). A timely petition for rehearing

en banc was denied on August 27, 1980 (Appendix E in-

fra p. le). This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

STATEMENT OF THE CASE

This suit is a foreign-soil aircraft accident action

arising out of a commercial flight between points in

Great Britain and Scotland which crashed on July 27,

1976 in mountainous terrain near Talla, Scotland. All six

persons aboard the aircraft were killed. The decedents,

as well as their heirs and next of kin, were Scottish

citizens and residents. The aircraft involved, a Piper

Aztec, was piloted by a Scottish citizen and resident act-

ing in the course of his employment with a Scottish air

taxi service, McDonald Aviation Limited, which leased

and operated the aircraft at the time of the accident. The

aircraft was registered in Great Britain and was owned

and maintained by another Scottish concern, Air Naviga-

tion Ltd.

On July 21, 1977, Gaynell Reyno, a California resi-

dent, brought this suit on behalf of five of the six Scot-

tish decedents, William Fehilly, Liam Stewart Fehilly,

William James McDougall Storm, David Vincent Moran,

and Peter Cunningham Scott, in the California Superior

Court against Petitioner, Hartzell Propeller, Inc. (‘‘Hart-

zell’’) and Avco Lycoming.' Respondent Reyno is not

‘ Avco Lycoming was dismissed with the consent of the Respon-

dent on November 29, 1977 by order of the United States District

Court for the Central District of California.

3

related to the decedents or their heirs and next of kin,

the real parties in interest and, as such, would not be en-

titled to represent the decedents under Scottish law. The

complaint asserts a wrongful death cause of action based

on American law, as the law of Scotland does not

recognize such a cause of action, based on American

products liability theories, also not recognized under

Scottish law, and on negligence claims, which are

recognized in Scotland. Petitioner and Hartzell denied

liability, contending, inter alia, that the accident was the

result of pilot error and/or improper maintenance and

repairs by McDonald Aviation Limited and Air Naviga-

tion Ltd., Scottish third parties who are beyond the

jurisdiction of the American courts. The action was

removed to federal court on the basis of diversity

jurisdiction under 28 U.S.C. § 1332(a) pursuant to 28

U.S.C. § 1441. On November 23, 1977, Petitioner

moved to transfer the action to Pennsylvania, which mo-

tion was granted over Respondent’s strenuous objections

as to the convenience and fairness of the Middle District

of Pennsylvania. Upon further consideration of the case,

particularly facts which were discovered only after the

transfer of the action to Pennsylvania, Petitioner and

Hartzell moved to dismiss or for judgment on the

pleadings on the grounds of forum non conveniens in

May, 1978. Petitioner’s motion was supported by a list

of the witnesses which it would call. (App. F infra

1f-3f).

After careful consideration of the case, and the af-

fidavits submitted by the parties, the District Court

dismissed the action on the grounds of forum non con-

veniens, on the basis of the public and private interests

identified by this Court in Gulf Oil Corporation v.

Gilbert, 330 U.S. 501 (1947). (App. C. infra pp. 1c-21c).

The dismissal was conditioned on the stipulation of the

4

defendants below that they would agree to their joinder

as defendants in a Scottish suit brought on behalf of the

Plaintiff’s beneficiaries and to waive any statute of

limitations defense arising after the date of the institu-

tion of the instant action.

In terms of the private interests of the parties, the

District Court relied heavily on the fact that the suit was

brought on behalf of Scottish nationals, not American

citizens, in a forum which was not their home forum.

Since the real parties in interest were not American

citizens and had not chosen their home jurisdiction, the

District Court afforded their choice of an American

forum less weight than an American plaintiff’s

preference to sue in his own home jurisdiction.

Another factor found to counsel strongly in favor

of dismissal by the District Court was the fact that vir-

tually all of the contacts with the suit were in Scotland.

These contacts included the fact that the suit arose out

of the death of Scottish citizens, that the accident occur-

red in Scotland, that the aircraft was operated and main-

tained by a Scottish company and owned by another

Scottish company, that the pilot of the fatal flight was

Scottish, that the aircraft had been registered, serviced

and maintained in Great Britain for at least seven years

before the accident, that the decedents’ estates would be

administered in Scotland and that any economic loss to

the real parties in interest occurred in Scotland and any

monetary recovery would be spent in Scotland for their

benefit. In contrast, the only contact the United States

had with the controversy was the manufacture of the air-

craft and propeller in Pennsylvania and Ohio, respective-

ly, more than ten years ago.

The Court reasoned further that all of the evidence

of damages lay in Scotland, and virtually all of the

5

evidence relating to Petitioner’s and Hartzell’s defenses,

as well as Respondent’s claims, was located in Scotland.

These Scottish witnesses and documents would not only

be difficult and costly to transport to the United States,

but also would be beyond the compulsory process of

American courts if voluntary cooperation was refused.

Further, the British Department of Trade Investigation

had conducted an extensive investigation into the acci-

dent, including three weeks of adversary hearings in

Edinburgh, Scotland, at which hearings the decendents’

heirs and next of kin and the defendants in this action

were represented by counsel, and the remains of the

wreckage are in the custody and possession of the British

Department of Trade. The presence of virtually all of

the evidence of both liability and damages in Scotland

and the absence of compulsory process to obtain the

Scottish witnesses and documents for a trial -in the

United States, as well as Scotland’s substantial invest-

ment of time and effort in the case, was another private

interest factor the District Court determined weighed

heavily in favor of dismissal.

The District Court also relied on the fact that this

accident was the subject of two other, duplicative suits in

the foreign jurisdiction and that there were necessary

third party defendants who could not be joined in this

suit but who could be joined in Scotland, and were even

parties to the pending foreign actions, as factors strongly

favoring dismissal of the American suit in favor of con-

solidation of the litigation in Scotland. A second action

was filed in Great Britain in July, 1978 against Piper

Aircraft Corporation, Hartzell Propeller, Inc., Air

Navigation and Trading Company, Ltd. and McDonald

Aviation, Limited by the representatives of the pilot, the

one person aboard the aircraft who is not represented in

this action. In addition, the Scottish heirs and next of

kin of the Scottish decedents on whose behalf this action

6

is brought have brought a civil action in their home

forum, Scotland, against the two Scottish companies in-

volved, Air Navigation and Training, Ltd. and

McDonald Aviation Limited. These are the necessary

third party defendants who Petitioner and Hartzell claim

may be responsible for the accident but cannot be joined

in this action.

In terms of the public interest, the District Court,

after determining that Scottish and Pennsylvania law

would govern different issues in the case, was concerned

with the confusion that would arise from the application

of different substantive law to the different parties in the

same case and the burden on the local courts and com-

munities of trying a Scottish aircraft case in which they

had little interest. The Court rejected the Respondent’s

claim that the possibility that Scottish courts would

apply Scottish law to the Scottish beneficiaries’ claims,

which law was less favorable to the Scottish

beneficiaries’ chances of recovery, if the suit was

dismissed, precluded a forum non conveniens dismissal,

noting:

That the law of Scotland is not as helpful to the

real parties in interest is not a weighty considera-

tion. We must determine which forum is proper

because of convenience and the interests of justice

and the decision cannot be correctly made if the

amount of a plaintiff’s likely award is given undue

weight. Generally, the cases that have been dis-

missed on the ground of forum non conveniens all

involve situations where a party enters a forum with

the hope of seeking more liberal rules of recovery.

If the foreign law that ought to govern a case does

not protect its citizens as fully as the law of the

ing forum, that is a matter to be dealt with

in the foreign forum. (App. C infra p. 20c).

7

The Court of Appeals for the Third Circuit reversed

the District Court and remanded the case for trial. The

Court below held that the District Court erred in con-

sidering the nationality of the real parties in interest and

by applying a less stringent burden of proof in a suit

‘brought on behalf of foreign nationals than that which

applies to a suit brought by American citizens, determin-

ing that the nationality of the plaintiff or the real parties

in interest was irrelevant to the merits of a forum non

conveniens dismissal. With respect to the balance of the

public and private interests, the Court eschewed reliance

on the established factors in favor of a new factor held

to be determinative of a forum non conveniens motion

and, as a result, concluded that the District Court had

erred in its balance of the interests. Although the Court

below noted the factors set forth in Gulf Oil Corpora-

tion v. Gilbert, supra, the Court gave little, if any,

weight to the traditional forum non conveniens factors,

relying instead on the effect of a forum non conveniens

dismissal on the plaintiff’s chances of recovery. Having

determined that under the applicable choice of law

rules,? American law would be applicable to the plain-

tiff’s claims if these claims were tried in American courts

and that American law was more favorable to the plain-

tiff’s chances of recovery than Scottish law, the law of

the decedents’ home forum, because Pennsylvania law

2 A federal court exercising diversity jurisdiction must apply the

choice of law rules of the forum state. Klaxon Co. v. Stentor Elec-

tric Manufacturing Co., 313 U.S. 487 (1941). Where, as here an

action has been transferred pursuant to 28 U.S.C. § 1404(a), the

transferee court must apply the law of the state of the transferor

forum. Van Dusen v. Barrack, 376 U.S. 613 (1964). In the instant

case, this rule led to the application of California choice of law

rules to plaintiff’s claims against Piper and Pennsylvania rules to

those against Hartzell. The Circuit Court determined that under

both rules, American, not Scottish, law would apply to the case.

recognizes products liability theories and wrongful death

causes of action not recognized under Scottish law, the

Court concluded:

But this Court has held that a dismissal for forum

non conveniens, like a statutory transfer, ‘‘should

not, despite its convenience, result in a change in

the applicable law.’””? Only when American law is

not applicable, or when the foreign jurisdiction

would, as a matter of its own choice of law, give

the plaintiff the benefit of the claim to which she is

entitled here, would dismissal be justified. (App. A,

infra pp. 22a-22b).

REASONS FOR GRANTING THE WRIT

The Third Circuit Court of Appeals held that a

foreign citizen has an absolute right to maintain a suit in

a federal district court, essentially without regard to

whether the foreign citizen’s home jurisdiction is the

more fair or convenient forum, whenever American law

is more favorable or generous to the foreign plaintiff

than is the law of his own jurisdiction. This novel con-

clusion squarely conflicts with this Court’s decision in

Canada Malting Co., Ltd. v. Paterson Steamships, 285

U.S. 413 (1932), a decision which has been explicitly

followed by the Second Circuit in Fitzgerald v. Texaco,

Inc., 521 F.2d 448 (2nd Cir. 1975), cert. denied 423 U.S.

1052 (1976). The decision below also conflicts in princi-

ple with the standards established by this Court and by

* The Circuit Court was quoting a prior decision, DeMateos v.

Texaco, Inc., 562 F.2d 895, 899 (3rd Cir. 1977), cert. denied, 535

U.S. 904 (1978). In DeMateos, a forum non conveniens dismissal

was affirmed only after the Third Circuit determined that a

dismissal would not impair the foreign plaintiff's chances of

recovery because under the choice of law rules of the forum state,

foreign law would apply to the foreign plaintiff’s claims.

9

the other Courts of Appeals for the application of the

doctrine of forum non conveniens.

The issue posed by this case bears significantly on

the power of federal courts to decline to exercise

jurisdiction over foreign controversies, the litigation of

which belongs in a foreign forum. This Court should

grant review in order to resolve the conflict created by

the decision below and to determine whether federal

courts must leave their doors permanently open to forum

shopping by foreign plaintiffs.

1. The decision of the Court below directly conflicts

with this Court’s decision in Canada Malting Co., Ltd.

v. Paterson Steamships, supra. \n Canada Malting the

libellant had contended that the action could not be

dismissed for forum non conveniens because a dismissal

would work a change in the law governing the case from

American law to Canadian law, which law was the law

of the libellant’s home forum and was less favorable to

its chances of recovery. The respondent argued that

dismissal was not precluded because foreign law would

apply to the libellant’s claims even if the suit were tried

in American courts. This Court affirmed the dismissal

without resolving the question of what law would govern

the case and hence, without resolving whether a dismissal

would result in a change in the applicable substantive

law, thereby sanctioning the granting of forum non con-

veniens dismissals irrespective of the effect of a dismissal

on the law applicable to the case or the plaintiff’s

chances of recovery and affirming the propriety of a

Jorum non conveniens dismissal despite such claims as to

an adverse effect on the plew'iff’s chances of recovery.

The Court stated, ‘‘[wje have no occasion to inquire by

what law the rights of the parties are governed as we are

of the opinion that, under any view of that question, it

10

lay within the discretion of the District Court to decline

to assume jurisdiction over the controversy.’’ 285 U.S. at

419-420.

The decision of the Court below is also in direct

conflict with the decision of the Second Circuit Court of

Appeals‘ in Fitzgerald y. Texaco, Inc., supra, which also

involved a suit on behalf of foreign nationals against an

American corporation. There, as here, the plaintiff had

claimed that a suit could not be dismissed under the

forum non conveniens doctrine if the law of the alter-

nate, foreign forum is less favorable to the plaintiff's

chances of recovery. The Second Circuit rejected this

argument, stating:

A district court has discretion to dismiss an action

under the doctrine of forum non _ conveniens,

however, even though the law applicable in the

alternative forum may be less favorable to the

Plaintiff’s chance of recovery. Canada Malting Co.,

Lid. v. Paterson Steamships, 285 U.S. 413, 418-20,

52 S. Ct. 413, 76 L.Ed. 837 (1932). A contrary

holding would emasculate the doctrine, for a plain-

tiff rarely chooses to bring an action in forum,

especially a foreign one, where he is less likely to

recover. Id. at 453.’

* The forum non conveniens cases now appear to be concentrated

in the Second and Third Circuits. See Alcoa Steamships Co., Inc.

v. M/V Nordic Regent, No. 78-7054 (2nd Cir., February 25, 1980).

Unfortunately, the two circuits have adopted very different, incon-

sistent approaches to the forum non conveniens doctrine. The Third

Circuit has adopted a liberal approach to the exercise of federal

diversity jurisdiction over foreign controversies, while the Second

Circuit has been more restrained in the exercise of its jurisdiction in

such cases, granting forum non conveniens dismissals more liberal-

ly, Alcoa Steamships Co., Inc. v. M/V Nordic Regent, supra.

* At least one district court in the Ninth Circuit has also held that

the effect of a forum non conveniens dismissal on a foreign plain-

tiff’s chances of recovery is irrelevant to the merits of the dismissal.

ro ay! v. General Motors Corporation, 439 F. Supp. 24 (N.D.

1977).

The decision of the Court below that the district

court never has any discretion to dismiss a suit for

forum non conveniens when the law of the alternate,

foreign forum is less favorable to the plaintiff squarely

conflicts with this decision of the Second Circuit. This

Court has criticized the insistence on the application of

American law, particularly to foreign claims or foreign

plaintiffs, as an unnecessarily parochial, ethnocentric ap-

proach. In M/S Bremen v. Zapata Off-Shore Company,

407 U.S. 1 (1972), the Court stated, relative to the en-

forceability of forum selection clauses calling for the

trial of a case in a foreign forum, that ‘‘we cannot have

trade and commerce in world markets and international

waters exclusively on our terms, governed by our laws,

and resolved in our courts.’’ 407 U.S. at 9. The Court

also rejected the argument that the forum clause was

contrary to American public policy because the

designated forum, England, would enforce an ex-

culpatory clause, which American courts would not en-

force for public policy reasons. 407 U.S. at 15-16. Thus,

the Third Circuit’s decision in this case also conflicts in

principle with this decision of the Court that the ap-

plicable substantive law and the plaintiff's chances of

recovery are not appropriate considerations in determin-

ing the proper venue for the trial of foreign

controversies.

Moreover, by showing a special solicitude for

foreign plaintiffs seeking to exploit the differences be-

tween American law and the law of their own country,

the Court below significantly departed from the direction

pointed by the decisions of this Court in cases involving

the doctrine of forum non conveniens. This Court has

held that a foreign plaintiff’s choice of an American

forum is not entitled to the same weight as an American

plaintiff’s choice of an American forum, and is certainly

12

not entitled to any significant weight. In both Swift &

Co. Packers v. Compania Colombiana Del Caribe, 339

U.S. 684 (1950) and Canada Malting Co., Ltd.. v. Pater-

son Steamships, supra, the Court distinguished suits

brought on behalf of foreign nationals from suits by

American citizens in balancing the forum non conveniens

factors, requiring a much stronger balance of the public

and private interests in favor of the dismissal if the suit

was brought on behalf of an American plaintiff who

would be forced to sue in a foreign country if the

American suit were dismissed than in a suit brought on

behalf of foreign nationals. In Swift & Co. Packers v.

Compania Colombiana Del Caribe, supra, an admiralty

action brought by an American company against a

foreign concern, the Court held that the application of

the forum non conveniens doctrine to a suit by an

American plaintiff brings into consideration different

factors than those in suits between foreign nationals,

stressing the significance of the fact that the plaintiff had

chosen its home jurisdiction as the forum for the suit.

339 U.S. at 697.

The refusal of the Court below to afford less

weight to the Scottish heirs’ and next of kins’ selection

of a forum foreign to them is also inconsistent with the

Court’s reasoning in Koster v. Lumbermens Mutual

Casualty Company, 330 U.S. 518 (1947). In Koster, the

Court reviewed the rationale for deferring to a plaintiff’s

choice of forum, and declined to give the plaintiff’s

choice such deference where these reasons were not

present. As in Koster, the reasons for affording the

plaintiff’s choice of forum deference, such as the conve-

nience and related benefits to the plaintiff from a suit in

his home forum, are not present here, such that the

plaintiff’s choice of forum should have been given little,

if any, weight by the Court below.

13

The decision of the Court below relative to the

significance of the citizenship of the real parties in in-

terest is also in direct conflict with the decisions of the

Second and Ninth Circuits applying the forum non con-

veniens doctrine. The Second Circuit has distinguished

suits brought by Americans in American courts where

the application of this doctrine would relegate an

American to a foreign court from suits brought by a

foreign plaintiff where declining to exercise jurisdiction

would remit the foreign plaintiffs to their remedies in

their own courts. The Second Circuit has held that the

balance of factors must be much stronger in the former

cases than in the latter. Olympic Corporation v. Societe

Generale, 462 F.2d 376, 378 (2nd Cir. 1972); see Far-

manfarmaian v. Gulf Oil Corporation, 588 F.2d 880,

882 (2nd Cir. 1978).*

In Paper Operations Consultants International Ltd.

v. SS Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975),

the Ninth Circuit Court of Appeals stressed that one of

the ‘‘foremost factors’’ in favor of the refusal to exercise

* The Second Circuit has permitted one exception, which applies

where there is a treaty between this country and the foreign plain-

tiffs’ country guaranteeing the foreign plaintiff access to American

courts on terms no less favorable than those afforded American

citizens. Where such a treaty is brought to the court’s attention, the

Second Circuit affords the foreign plaintiff's choice of an American

forum the same weight given an American’s choice. A/coa Steam-

ship Co., Inc. v. M/V Nordic Regent, supra; Farmanfarmaian v.

Gulf Oil Corp., supra. No such treaty is involved in the instant

case. The Court below was aware of the Second Circuit's rule, but

attempted to circumvent the conflict with a footnote stating that

Olympic Corp. v. Societe Generale, supra, had apparently been

overruled sub silento by Alcoa Steamship Co., Inc. v. M/V Nordic

Regent, supra. This is not an accurate explanation of Alcoa Steam-

ships Co., Inc. v. M/V Nordic Regent, supra, as the Court there

and in Farmanfarmaian v. Gulf Oil Corporation, supra, clearly af-

firmed the rule of Olympic, only limiting its applicability in cases

where it would conflict with this country’s treaty obligations.

14

the court’s jurisdiction therein was the fact that the par-

ties were foreign nationals. Jd. at 672.

The Court below has created a new, preclusive test

for the application of the doctrine of forum non con-

veniens, a test that has no sanction in this Court’s prior

decisions. The plaintiff’s chances of recovery was not

one of the factors identified by the Court in its seminal

decision of Gulf Oil Corporation v. Gilbert, supra,

wherein the Court first outlined the public and private

interest factors to be considered in resolving a forum

non conveniens motion in a diversity action, or in any of

the other decisions by the Court relating to forum non

conveniens. In Gulf Oil Corporation v. Gilbert, supra,

the Court was afforded the opportunity to identify the

benefits to the plaintiff’s chances of recovery in the

present forum as a relevant factor, as the plaintiff there

admitted that he had selected the original forum because

he thought he would receive a more liberal jury verdict

there, id. at 510, but the Court did not view this as

precluding dismissal and affirmed the forum non conve-

niens dismissal. More significantly, by relying solely on

the applicable substantive law to deny a forum non con-

veniens dismissal, the Third Circuit has drastically re-

vised the governing forum non conveniens standard to

one which ignores the public and private interests enun-

ciated by the Court in Gulf Oil Corporation v. Gilbert,

supra, reducing the forum non conveniens standard to

one factor, the law which will govern the suit. This is a

very different standard from that recognized by this

Court.’

’ The decision of the Court below is inconsistent with the deci-

sions of other Circuit Courts in a related respect, i.e., by discoun-

ting the significance of the absence of third party defendants who

are beyond the jurisdiction of American courts, but subject to pro-

cess in the foreign national’s home jurisdiction, and the pendency

15

2. The decision of the Court below raises important

and recurrent questions relative to the exercise of

jurisdiction by the federal courts. The case raises impor-

tant questions as to the propriety of federal court en-

forcement of a parochial, ethnocentric view that the sup-

posed benefits of American law must be afforded to and

imposed on the world community, to the encourage-

ment, even reward, of wholesale forum shopping by

foreign plaintiffs with the consequent burden on United

States courts and domiciliaries from the increase in

litigation which belongs, and is even pending, in other

courts. Serious concerns are also posed relative to the

assessment of liability against American citizens in favor

of foreign domiciliaries in excess of the recovery their

own home jurisdiction would provide to the detriment of

American manufacturers. Indeed, the future, if any, of

the forum non conveniens doctrine is in question as a

result of the decision below.

The fundamental, and only, mechanism for con-

trolling the exercise of federal jurisdiction over foreign

cases is the forum non conveniens doctrine. The decision

of another action by the foreign decedents’ heirs and next of kin in

the foreign forum against these absent third parties. The Court

below noted that these considerations were factors in the forum non

conveniens balance, but gave them virtually no weight, in part due

to the Court’s erroneous understanding of res judicata principles.

(App. A infra pp 19a-20a). In contrast to this summary disregard

of the significance of the prejudice and burden of the inability to

implead third parties and of duplicative law suits, the First, Second,

Eighth, and Ninth Circuits have given those factors substantial

weight, as did the District Court in this suit. E.g., J. F. Pritchard &

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

1972); Fitzgerald v. Texaco, Inc., supra; Fitzgerald v. Westland

Marine Corp., 369 F.2d 499 (2nd Cir. 1966); Olympic Corp. v.

Societe Generale, supra; Codex Corp. v. Milgo Electronic Corp.,

= F.2d 735 (ist Cir. 1977); The Kanto Maru, 112 F.2d 564 (9th

Cir. 1940).

16

below emasculates the forum non conveniens doctrine,

replacing the long-recognized public and private interest

factors of Gulf Oil Corporation v. Gilbert, supra, with

one consideration, the effect on the plaintiff’s chances of

recovery if the suit is dismissed. If, as the Third Circuit

held, the suit cannot be dismissed if dismissal would im-

pair the plaintiff’s chances of recovery, then the conve-

nience of and prejudice to the defendants and third par-

ties and the interests of the local courts and com-

munities, the raison d’etre of the forum non conveniens

doctrine, Swift & Co. Packers v. Compania Colombiana

Del Caribe, supra; Gulf Oil Corporation v. Gilbert,

supra, are of secondary, if any, significance. As a result,

the very policies and concerns this Court sought to im-

plement by its recognition of the forum non conveniens

doctrine in federal diversity actions will no longer be

secured by this doctrine, policies and concerns which are

still quite viable in the 1980’s.

As a result of the Third Circuit’s elevation of the

applicable law to a dispositive role in forum non conve-

niens motions, it has become generally recognized that

the outcome of a case will now turn on the applicable

choice of law rules. This is not the intended, or even im-

agined, result of the various state’s choice of law rules,

and these principles should not be forced into service for

a purpose they were not designed to fulfill. Perhaps

more significantly, this was not the basis for the applica-

tion of the forum non conveniens doctrine intended by

this Court. The decision of the Court below must be

_ reviewed and reversed to return the forum non conve-

niens doctrine to its original foundations and the litiga-

tion of foreign accident cases to the appropriate forum.

Because the choice of law rules of the original

forum state will have such a substantial impact on the

17

outcome of any forum non conveniens motions filed in

the case, the plaintiff’s counsel can pre-determine the

resolution of such a motion by careful forum selection.

An astute plaintiff’s attorney can select an original

forum with choice of law rules which will lead to the ap-

plicability of American law to the plaintiff’s claims on

the facts of the particular case, thereby guaranteeing the

outcome of any forum non conveniens motion in the

case. Federal jurisdiction should turn on more weighty

considerations than the plaintiff’s forum shopping skills.

Indeed, if the Third Circuit’s decision is allowed to

stand, forum non conveniens will virtually be eliminated

by careful selection of the initial forum.

This dispositive effect the Third Circuit’s rule gives

to choice of law rules will also result in inconsistent

dispositions of forum non conveniens motions in cases

involving substantially the same or similar facts, due to

differences in the applicable choice of law rules. The

various American jurisdictions recognize several very dif-

ferent choice of law rules, such as /ex loci, ‘‘governmen-

tal interests’’ and ‘‘significant contacts.’ If the substan-

tive law applicable to the case is dispositive of the merits

of a forum non conveniens dismissal, actions involving

substantially similar facts will have different results in

terms of forum non conveniens, solely because dif-

ferences in the forum’s conflict of law rules will lead to

the application of different substantive law. An apt ex-

ample of this dilemma are the opposite conclusions

reached on similar facts as a result of the application of |

different choice of law rules in the instant action and

Dahl v. United Technologies, No. 79-2596/97/98/99

(August 7, 1980), wherein a forum non conveniens

dismissal was affirmed, decided within weeks of each

other by the Third Circuit. The forum non conveniens

doctrine should be applied with an even hand across the

board, without regard to the state or circuit in which the

action is initially brought.

The decision of the Court below also raises impor-

tant questions as to whether it is, or should be, the role

of our federal courts to guarantee foreign plaintiffs

rights and monetary recoveries the laws and courts of

their own jurisdiction saw fit to withhold. It is somewhat

presumptuous of the American system of justice to state

that foreign nationals can only be adequately protected

by our courts and our legal system and that Scotland or

other countries cannot be trustec’ to do justice to their

own citizens. The presumption of the Third Circuit that

federal courts must retain jurisdiction over claims by

foreign nationals to ensure that they receive the benefits

of our laws is the type of parochial outlook criticized by

the Court in M/S Bremen v. Zapata Off-Shore Com-

pany, supra at 15-16. The Third Circuit itself has aptly

characterized such a claim in DeMateos v. Texaco, Inc.,

supra, as ‘a variety of social jingoism, which presumes

that the ‘‘liberal purposes’’ of American law must be ex-

ported to wherever our multinational corporations are

permitted to do business.’ Jd. at 902.

The necessary corollary to the Third Circuit’s rule

and its assumption that foreign plaintiffs must be treated

the same as American plaintiffs and cannot be deprived

of the benefits of our laws is that our federal courts

must become ‘‘international courts’’ for the adjudication

of any controversy involving an American product

anywhere in the world. Neither the federal courts nor the

local communities are equipped to handle such a task,

and have no real interest in so doing. Not only do the

federal courts not have any interest in assuming such a

role, but also there is no need for such activism. Virtual-

19

ly all foreign countries have a judicial system which

would afford these foreign claimants a hearing and

recognize compensatory rules of law for injured parties.

In the instant action, both Piper and Hartzell had

established that Scotland recognized and applied

negligence principles and various measures of damages.

If the alternate, foreign country did not provide a forum

for the plaintiff’s claim, one of the prerequisites to a

forum non conveniens dismissal, an alternate forum in

which the suit should have been brought, Gulf Oil Cor-

poration v. Gilbert, supra, would be absent. Thus the

federal courts are not needed to fulfill an international

judicial function, and where there is a need for a forum,

the forum non conveniens doctrine already provides for

the necessary limitations on dismissal through a different

requirement.

CONCLUSION

The Petition for a writ of certiorari should be

granted.

Respectfully submitted,

CHARLES J. MCKELVEY

ANN S. PEPPERMAN

McNERNEY, PAGE,

VANDERLIN & HALL

433 Market Street

P. O. Box 7

Williamsport, PA 17701

(717) 326-6555

EXHIBITS

la

EXHIBIT A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2747

GAYNELL REYNO, as Personal Representative

of the Estate of William Fehily, Liam Stewart

Fehilly, William James McDougall Storm, David

Vincent Moran, and Peter Cunningham Scott,

Appellant

v.

PIPER AIRCRAFT COMPANY, a corporation;

AVCO LYCOMING ENGINE GROUP, a Division of

AVCO CORPORATION; HARTZELL PROPELLER,

INC., a corporation

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

C. A. No. 77-1159

Argued May 22, 1980

Before: ADAMS, VAN DUSEN and HIGGINBOTHAM,

Circuit Judges

(Filed July 24, 1980)

DANIEL C. CATHCART

MICHAEL D. MOORHEAD (Argued) |

Magana, Cathcart, McCarthy & Pierry —

Los Angeles, Cal. 90067

Attorneys for Appellant

2a

CHARLES J. McKELVEY,

ANN PEPPERMAN (Argued)

McNerney, Page, Vanderlin & Hall

Williamsport, Penna. 17701

Attorneys for Appellee,

Piper Aircraft Corporation

RONALD C. SCOTT (Argued) ©

Krusen Evans and Bryne

Philadelphia, Penna. 19106

Attorneys for Appellee

Hartzell Propeller, Inc.

OPINION OF. THE COURT

ADAMS, Circuit Judge

This is an appeal from a dismissal of a wrongful

death action on grounds of forum non conveniens. The

issues include the factors to'be considered in such a dis-

missal, the burden of persuasion on the motion, the

scope of the trial judge’s discretion, and the application

of choice of law rules of California and Pennsylvania.

The event yiving rise to this dispute was the crash

of a Piper aircraft in Scotland in July 1976. The plane

was owned by a Scottish air taxi service, the passengers

and crew of which were Scottish. All persons aboard

were killed and no witnesses survived the crash. There

are indications, however, that something went wrong

with the left engine for which compensatory action by

the pilot was impossible, was unnecessarily difficult, or

was ineptly handled by the pilot.'

Gaynell Reyno, a California resident and personal

representative of the estates of various Scottish dece-

1. Determination of these issues by the ultimate factlinder. of

course. will be dealt with when the merits of the case are reached.

3a

dents, sued on their behalf in a California state court.

Named as defendants were Piper Aircraft Corp., a Penn-

sylvania corporation that manufactured the aircraft;

Avco Lycoming Engine Group, which produced the en-

gine; and Hartzell] Propeller, Inc., an Ohio corporation

that built the propeller. The wrongful death action is

based on theories of strict liability and negligence.”

On motions by Piper and Avco based on diversity of

citizenship, the case was removed from the California

state court to the federal district court in California. After

the removal, Hartzell moved to dismiss for lack of per-

sonal jurisdiction or, in the alternative, to transfer the

case to the Middle District of Pennsylvania under 28

U.S.C. §1404(a).* Piper moved to dismiss for failure to

state a cause of action or, alternatively, to transfer the

case to the Middle District of Pennsylvania and to strike

the claim for punitive damages. The action was dis-

missed as to Avco with the agreement of plaintiff.

The district court in California entered an order (1)

granting the motion to quash service of process as to

Hartzell on the ground that personal jurisdiction over

Hartzell was neither authorized by California law nor in

accord with due process; and (2) transferring the case to

2. Plaintiff contends that the engine malfunction itself was the

result of a design or manufacturing defect for which Piper is liable.

In addition, the following dangerous and defective conditions in the

aircraft are alleged: (1 ) inadequacies associated with the left propel-

ler mechanism that prevented institution of emergency procedures

in the event of engine loss; (2) design and manufacture’of an air-

craft incapable of single engine flight with a “windmilling” propel-

ler; (3) manufacture of an aircraft with improper instruments for

maintaining single engine operation: and (4) inaccuracies and

omissions in the Aircraft Owners Handbook and flight manuals per-

taining to emergency procedures and single engine operating

specds.

3. That section provides: “For the convenience of parties and

witnesses, in the interest of justice. a district court may transfer any

civil acuion to any other district or division where it might have been

brought.

4a

the Middle District of Pennsylvania pursuant to

§1404(a).

Subsequent to the transfer, Hartzell was validly

served with process in Pennsylvania and then moved to

dismiss the case on the common law ground of forum

non conveniens. Piper filed a similar motion captioned

as a request for judgment on the pleadings or summary

judgment. Both motions were accompanied by affida-

vits. On the basis of the affidavits, the trial judge granted

the motions to dismiss because of forum non conveniens

on condition that defendants submit to personal jurisdic-

tion in Scotland and waive any statute of limitations

there. Reyno filed a timely appeal.

In this Court, Reyno raises two major contentions:

(1) The judge erred in not holding defendants equitably

estopped to assert that Scotland was a more appropriate

forum, inasmuch as Piper had maintained in California

that Pennsylvania was the most appropriate forum. (2)

The trial judge abused his discretion in dismissing the

action. Subsidiary, but arguably crucial, to this second

point is the claim that the district judge's order was

based on a legal error as to whether Scottish or Pennsy!l-

vania law applied to most or all of the case.

], THE INTERACTION OF A TRANSFER UNDER

§1404(a), A SUBSEQUENT FORUM NON

CONVENIENS MOTION, AND THE CONCEPT

OF PRECLUSION

Reyno argues that the district court erred in not

considering whether the defendants were equitably es-

topped from moving to dismiss. Essentially, she con-

tends that, by following a successful motion to transfer

the case from California to Pennsylvania with a motion

to dismiss so that the case would have to be filed in Scot-

land, the defendants are trifling with the court and wast-

ing judicial and litigant time and resources.

Sa

The district court’s opinion did, however, consider

plaintiff's argument and rejested it, albeit in a somewhat

summary fashion:

No cases are cited in support of that proposition and

we believe that is a sufficient indicator of the merit

of that argument.. . . The papers filed concerning

the motion to transfer are, of course, irrelevant to

the question we have decided. They were filed early

on in this proceeding before many of the important

facts of this case were uncovered. Also, Defendants

should not be punished for their failure to file a mo-

tion to dismiss for forum non conveniens first, in-

stead of the motion to transfer. If they would have

filed such a motion we feel sure that the California

district, court would have likewise dismissed this

action.

The Court of Appeals for the Fifth Circuit has re-

versed the dismissal of an admiralty claim on forum non

conveniens grounds for the reasons now pressed by

Reyno. It declared that the defendant should not be

permitted, after securing a statutory transfer from Lou-

isiana to Georgia, to contend that Georgia was not really

an appropriate forum; the defendant “may not ‘so trifle

with the judicial process.’ "®

Defendants here urge, and the district court seemed

to accept, that they did not take inconsistent positions

before the district court in California and that in Penn-

sylvania. The motion in California, defendants argue,

simply represented that Pennsylvania was a better fo-

rum than California, whereas the present motion con-

tends that Scotland is better yet. Furthermore, they aver.

4. 479 F. Supp. at 738.

5. Insurance Co, of North America vy, Ozean/Sunnes-Linien.

367 F.2d 224, 227 (Sth Cir. 1966) (quoting Livesay Ind. v. Livesay

bye ott Co., 202 F.2d 378, 382 (5th Cir.), cert denied. 346 U.S. 855

»

6a

any inconsistencies are a result of fuller knowledge of

the relevant facts.

Examination of the motions made by defendants in

California reveals that their prior allegations are indeed

at variance with their present contentions. A statutory

transfer, as well as a common law dismissal, must be

shown to be not only more convenient, but also in the

interest of justice. In meeting that burden, Hartzell as-

serted in California that “the plaintiffs would easily have

their interests herein protected and adjudicated by appli-

cation to the courts located in the State of Pennsylvania,

and in fact such would be overwhelmingly fair to all the

parties herein.’ Similarly, Piper argued that “(t|}he pro-

priety of transferring the within action to Pennsylvania

for the convenience of the witnesses appears to over-

whelm other factors, in view of the apparent theories of

liability as against the defendants.”

Both defendants averred that, because the claim

was based on strict liability, virtually all the evidence and

material witnesses as to production and design would be

in Pennsylvania or Ohio.® Furthermore, they argue that

6. Hartzell's Memorandum of Points and Authoriues in Sup-

port of Motion to Dismiss for Lack of Jurisdiction over the Person or

for Transfer under 28 U.S.C. §1404(a) at 8. No. CV-77-3181-I1H

(C.D. Cal., filed Oct. 11, 1977).

7. Piper's Memorandum of Points and Authorities in Support

of Motion to Transfer under 28 U.S.C. §1404(a) at 6. No.

CV-77-3181-1H (C.D. Cal., filed Nov. 23, 1977).

8. Hartzell stated in its memorandum that “the records and

employees of the. . . defendants herein are prospective evidence

and witnesses, respectively.” Piper asserted, “Necessarily, it would

seem that all material witnesses on the liability issues reside in ei-

ther Pennsylvania or Ohio.” In reply to plaintiff's opposition to the

transfer, Piper argued that the respective employees of Piper. . .

and Hurtzell Propeller, who were involved in the design, manufac-

ture, testing, and assembly of the component parts in question, will

be material witnesses, but thev are located in Pennsylvania and

Oho. It is clear that the convenience of these witnesses is better

served if the within action is pending in the State of Pennsylvania

than if it is pending in the Central District of California.”

7a

new facts bearing on forum non conveniens were dis-

covered after motions were filed in California.

At the time of the transfer motion ,all facts now al-

leged to be relevant — e.g., where various witness are,

where the crash occurred, where the wreckage was lo-

cated, and who owned the plane — were known. All that

seems new was that a British administrative agency

would investigate and report on the accident and that

the decedents’ estates would institute a separate action

against the air taxi service in Scotland. Although these

last facts are indeed relevant to a forum non conveniens

motion, they are hardly surprising or significantly new.

What defendants really are arguing is that the case was

- not thoroughly researched before making the transfer

motion.

Nevertheless, two factors weigh against an absolute

preclusion to raise a forum non conveniens motion in

this case: (1) The thrust of Hartzell’s motion in the Cali-

fornia court, and the contention accepted by that tribu-

nal, was lack of personal jurisdiction. Arguably, then, it

is not fair to make Hartzell responsible for proceedings

there, even if it would be fair and proper as against Piper.

(2) Forum non conveniens entails important consider-

ations of public interest, in addition to those of the pri-

vate litigants themselves. If defendants are correct in

their assertion that trial in Pennsylvania would be un-

duly burdensome to the court and the juror community,

it might be self-defeating to raise an absolute barrier to

pleading forum non conveniens. Hence, although a par-

ty who moves for transfer under §1404(a) will not be

automatically estopped to assert forum non conveniens

after a transfer is accomplished, the fact that a party pre-

viously succeeded in a statutory transfer ought to be

weighed against dismissing for forum non conveniens

and as adding to a defendant's already substantial bur-

den on the later motion. :

8a

Il. FORUM NON CONVENIENS DISMISSAL

The doctrine that an otherwise validly brought

claim may be dismissed because the forum chosen was

inconvenient for trial had its origin in the common law of

Scotland,® became part of the common law of many

states, '° and has a long history of use in federal admiral-

ty actions.'' It was introduced into federal diversity ju-

risdiction by Gulf Oil Corp. v. Gilbert'* and Koster v.

(American) Lumbermens Mutual Casualty Co.,'* decid-

ed in 1974.

Simple in enunciation but complex in application,

the principle of the doctrine is “that a court may resist

imposition upon its jurisdiction even when” neither ju-

risdiction nor venue is defective.’* Forum non’

conveniens as a common law doctrine has been dormant

for purposes of interstate dismissals within the federal

system since the passage of 28 U.S.C. §1404(a) soon

after the two seminal Supreme Court cases.'® That stat-

ute is similar to the common law doctrine, but author-

izes transfers within the federal court system with a lesser

9. Braucher, The Inconvenient Federal Forum, 60 Harv. L.

Rev. 908, 909-11 (1947). The issue of inconvenient forum as a

question on the merits rather than of jurisdiction may be traced at

least to 1845. See id. at 909 (citing M'Morine v. Cowie, 7 Dunl. 270

(1845)).

10. See Blair, The Doctrine of Forum Non Conveniens in

Anglo-American Law, 29 Colum. L. Rev. 1 (1929); Braucher, supra

note 9, at 911-12.

11. The doctrine in admiralty is thought to derive from dictum

in Mason v. The Ship Blaireau, 6 U.S. .43, 157, 2 Cranch 240, 264

(1804). See Bickel, The Doctrine of Forum Non Conveniens as Ap-

plied in the Federal Courts in Matters of Admiralty, 35 Cornell L.

Rev. 12, 12 & n.10 (1949); Braucher, supra note 9, at 920 & n.79.

But cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505 n.4 (“The doc-

trine did not originate in federal but in state courts.").

12. 330 U.S. 501 (1947).

13. 330 U.S. 518 (1947).

14. Gulf Oil Corp. v. Gilbert, 330 U.S. at 507.

15. 62 Stat. 937 (1948) (codified at 28 U.S.C. §1404).

9a

burdea — both substantively and procedurally — than a

motion to dismiss. '®

The question whether federal or state law of forum

non conveniens applies in a diversity case was left open

by the Supreme Court and has not definitively been de-

cided by any court of appeals.'” In this case, as in many

16. The statute is a revision rather than just a codification of

forum non conveniens. It permits federal courts to grant transfers

on a lesser showing of inconvenience than is required under the

common law doctrine and there is no need for pleadings or docu-

ments to be refiled in the transferee court. The relevant factors to be

considered, however, are the same. Norwood v. Kirkpatrick. 349

U.S. 29, 32 (1955).

17. The Erie question was a matter in controversy in both Gil-

bert and Koster until the cases reached the Supreme Court. In Gil-

bert the district court, relying on Weiss v. Routh, 149 F.2d 193 (2d

“Cir. 1945), held New York law to apply and dismissed the action. 62

F. Supp. 291, 294 (S.D.N.Y. 1945). The Court of Appeals distin-

guished Weiss, held that federal law controlled, and reversed the

trial judge for abuse of discretion. 153 F.2d 883, 886 (2d Cir. 1946).

A separate panel deciding Koster also applied federal law, but cau-

tiously noted that the result would have been the same under state

law. 153 F.2d 888, 890 n.2 (2d Cir. 1946). In considering the merits

of the dismissal, the Supreme Court relied exclusively on Supreme

Court cases, but then avoided discussion of the Erie problem with

the following:

The law of New York as to the discretion of a court to apply the

doctrine of forum non conveniens, and as to the standards that

guide discretion is, so far as here involved, the same as the fed-

eral rule. . . . It would not be profitable, therefore, to pursue

inquiry as to the source from which our rule must flow.

330 U.S. at 509 (citations to New York cases omitted). In Koster the

Court was equally inscrutable. See 330 U.S. at 529 (“Since this case

is pending in New York and is a diversity case, it is appropriate to

observe that the law of New York, if applicable, is to the same effect

as to the considerations to govern forum non conveniens questions

in this class of cases.")

The Court's decision not to decide was sharply criticized by

Professor Braucher who observed that it

seems to have been arrived at by something like main force: in

the Koster case it was contrary to the unanimous view of the

10a

brought before the federal courts, federal law has been

argued at all stages in the litigation.'® Upon specific re-

quest for supplementary briefing in this Court, all three

parties agree that if a choice is necessary. federal law

should be followed, and cite numerous district court

opinions and commentaries in support of that position. '®

NOTE 17 —(Continued)

circuit judges (that federal law applied], and in the Gilbert case

it was reached only by ignoring the state court decision most

nearly in point, which had been cited with approval by the New

York Court of Appeals. Since the circuit court of appeals had

not regarded the New York law as controlling, previous deci-

sions suggest that if New York law were held to govern, the

normal practice of the Supreme Court would be to remit the

case to the lower court to determine that law. '?°

123. Wertheim v. Clergue, 53 App. Div. 122, 65 N.Y. Supp. 750

(1st Dep't 1900); see Gregonis v. Philadelphia & R. C.& |. Co..

235 N.Y. 152, 139 N.E. 223, 225 (1923). The Wertheim case

reversed dismissal of an action based upon false representa-

tions in the inducement and periormance of a contract on the

ground there was no discretion in “cases arising out of com-

mercial transactions and affecting property.” 53 App. Div. at

126, 65 N.Y. Supp. at 753. The Supreme Court relied on New

York cases containing general statements that there is discre-

tion to dismiss tort actions.

Braucher, supra note 9, at 928 (footnotes 122 and 124 omitted).

Since the Gilbert and Koster cases, the Second Circuit has altered

its position to indicate that the Ene question is an open one. See

Thomson v. Palmieri, 355 F.2d 64. 66-67 (2d Cir. 1966).

18. See Founding Church of Scientology v. Verlag. 536 F.2d

429. 434 n.13 (D.C. Cir. 1976) (“Although the issue has never been

squarely addressed by this Court, federal courts in the District |of

Columbia| have in practice used the federal law of forum non

conveniens.”)

19. A footnote in Koster addressing the question whether ted-

eral courts have discretion to decline granted jurisdiction strongly

points. along with the structure of the Court's reasoning in both Gil-

bert and Koster. toward use of federal rather than state law:

Some of our cases appear to hold broadly that the iederal courts

must exercise their jurisdiction. when thev have it. {citing

cases|. But this is not a case in which it is urged that a state

They assert, nevertheless, that it is probably not neces-

sarv to decide between federal and state law because the

cases dealing with forum non conveniens in both Cali-

fornia and Pennsylvania have mirrored federal law in all

essential respects. We agree.”°

statute restricting remedy to state proceedings defeats federal

diversity jurisdiction, as [those cases] were... . In those

cases, the Court held that when a state recognizes a cause of

action, suit may be brought on it in federal court if diversity ju-

risdiction is established. That holding has nothing to do with

this case. We are concerned here with the autonomous admin-

istration of the federal courts in the discharge of their own ju-

dicial duties, subject of course to the control of Congress.

330 U.S. at 520 n.]1 (emphasis added). Moreover, in Parsons v.

Chesapeake & O.R. Co., 375 U.S. 71, 73 (1963), which was not a

diversity case, the Court held that “a prior state court dismissal on

the ground of forum non conveniens can never serve to divest a fed-

eral district judge of the discretionary power (to transfer a case un-

der §1404(a)].” Virtually all the district courts and commentators

that have squarely faced the issue have decided to apply federal law.

See, e.g.. Poe v. Marquett Cement Manuf. Co., 376 F. Supp. 1054.

1057-59 (D. Md. 1974); Lapides v. Doner, 248 F. Supp. 883. 885-94

(E.D. Mich. 1965); Shulman v. Compagnie Generale Transatlan-

tique, 152 F. Supp. 833, 834-36 (S.D.N.Y. 1957); 1A (pt. 2) Moore's

Federal Practice 10.317(2], at 3232-33 (2d ed. 1978); 15 C. Wright.

A. Miller & E. Cooper, Federal Practice and Procedure §3828. at

181 & n.19 (1976).

20. Opinions of the Pennsylvania Supreme Court have adopted

almost verbatim the factors to be considered that are set out in Gil-

bert’s and Koster, scope of trial court discretion, and standard of ap-

pellate review. See Rini v. N. Y. Central R. Co., 429 Pa. 235. 240

A.2d 372 (1968); Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549

(1960). The section of the Restatement regarding forum non

conveniens, on which the Pennsylvania courts also rely, in turn re-

lies on the major federal cases. See Restatement (2d) Conflict ol

Laws §84 note (1971). California's forum non conveniens doctrine.

formerly of common law origin, is now statutorily codified at Cal.

Civ. Proc. Code §410.30. Archibald v. Cinerama Hotels. 15 Cal. 3d

853, 858, 544 P.2d 947, 950, 126 Cal. Rptr. 811, 814 (1976). Cali-

fornia law precludes, except in extra ordinary cases. a trial court

12a

A. Comparative Burdens, Trial Court Discretion,

and Standard of Review

A plaintiff is generally conceded the choice of forum

as long as the requirements of personal and subject mat-

ter jurisdiction, as well as venue, are satisfied. He should

not be deprived of the advantages presumed to come

from that choice unless the defendant clearly shows

facts that “either (1) establish such oppressiveness and

vexation to a defendant as to be out of all proportion to

plaintiff's convenience. . . or (2) make trial in the cho-

sen forum inappropriate because of considerations af-

. fecting the court’s own administrative and legal prob-

lems.”2! A court must balance these private and public

interest factors, “(b]ut unless the balance is strongly in

favor of the defendant, the plaintiff's choice of forum

should rarely be disturbed.”

The district judge believed that the plaintiff's choice

of forum is of diminished significance, and the defend-

ants’ burden of showing inconvenience correspondingly

NOTE 20 — (Continued)

from dismissing on forum non coveniens grounds an action

brought, as in this case, by a California resident. Id. at 859, 126, 544

P.2d at 950, Cal. Rptr. at 814. An exception to this limitation is

made where, also as here, a California resident sues in a representa-

tive capacity for foreign beneficiaries. See id. at 860 & n.6, 544 P.2d

at 951 & n.6, 126 Cal. Rptr. at 815 & n.6. In all respects relevant to

this case, then, we find no dissimilarities in the factors considered

under federal and California law. Cf. Jagger v. Superior Court, 96

Cal. App. 3d 579, 585-87, 158 Cal. Rptr. 163, 166 (1979) (outlining

California law in manner essentially following Gilbert and Koster;

concluding that satisfaction in divorce action between foreign ce-

lebrities should be deferred to English courts).

21. Koster, 330 U.S. at 524.

22. Gilbert, 330 U.S. at 508; see Schertenleib v. Fraum, 589

F.2d 1156. 1164 (2d Cir. 1978) (“We begin by noting that plaintiff

chose this forum and defendant resides here. This weighs heavily

against dismissal.”); Hioffman v. Goberman, 420 F.2d 423, 426-27

(3d Cir. 1970).

13a

less, when the plaintiff — more precisely, the real parties

in interest — is foreign or when the forum chosen is not

the plaintiffs home ground.”* Neither of these

burden-shifting principles may be found in opinions of

the Supreme Court or this Court.

In support of the proposition that less solicitude is

due a foreign plaintiff's choice of forum, the district

court relied on a decision of the District Court for the

Southern District of New York which stated that a for-

eign plaintiff's “choice of forum should be given less

weight than the choice of an American plaintiff."** The

court of appeals affirmed the judgment in that case, but

disapproved of the district court's characterization of the

forum non conveniens doctrine applicable to nonciti-

zens.*° Indeed, as the Court of Appeals for the Second

Circuit has recently held, the citizenship of the plaintiff

does not affect the defendant's burden under Gilbert and

Koster. American citizenship of the plaintiff does not in-

crease the deferdant's burden, just as foreign citizen-

ship may not lessen it.”®

The holding by the trial judge that a plaintiff's

choice is entitled to less weight when it is not the plain-

tiffs state of residency is somewhat difficult to follow

when, as here, that party has already been forced to cede

23. 479 F. Supp. at 731.

24, Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 927

(S.D. N.Y. 1977), aff'd on other grounds, 588 F.2d 880 (2d Cir.

1978).

25. See Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882

(2d Cir. 1978).

26. Alcoa Steamship Co.. Inc. v. M/V Nordic Regent, No.

78-7054, slip op. at 5960-68, 5973 (2d Cir. Feb. 25, 1980) (en banc).

The court of appeals en banc thus seems to have overturned with-

Out specific mention the panel holding in Olympic Corp. v. Societe

Generale, 462 F.2d 376, 378 (2d Cir. 1972), that the defendant's

burden is greater if an American plaintiff is to be relegated to a for-

eign forum. The Olympic Corp. opinion was also relied on by the

district court here. :

14a

the “home court advantage” as a result of the defend-

ants’ previous motion to transfer the case from California

to Pennsylvania.?’ It would be the rare situation in

which a defendant could complain of being vexed or har-

assed by defending a lawsuit on his home ground.

Of course, the Supreme Court has stated that “|t)he

doctrine [of forum non conveniens] leaves much to the

discretion of the court to which plaintiff resorts,” but this

broad proposition was followed by the explanatory obser-

vation that “experience has not shown a judicial tend-

ency to renounce one's own jurisdiction so strong as to

result in many abuses.””* The standard of review is one

of abuse of discretion,”® but if the trial court has not held

the defendants to their proper burden or has clearly

erred in weighing the factors to be considered, the

equivalent of an abuse of discretion has been demon-

strated. Discretion must be exercised within the applica- .

ble standards.*° The district court's wide discretion may

27. Phoenix Canada Oil Co., Ltd. v. Texaco, Inc., 78 F.R.D.

445. 453 (D. Del. 1978). The district court relied on Fitzgerald v.

Texaco, Inc., 521 F.2d 448, 451 (2d Cir. 1975), cert. denied, 423

U.S. 1052 (1976), which may have relied too literally on Koster’s

menuon of deference to a plaintiff's choice of his home forum in set-

ung forth the defendant's burden of establishing inconvenience. See

330 U.S. at 524. It is apparent that the Koster court was simply set-

ting forth the proposition that, as between diverse citizens, conven-

ience of a particular forum to one party will almost inevitably mean

inconvenience to the other. Given this trade-off, the plaintiff's

choice will generally be respected.

28. Gilbert, 330 U.S. at 508.

29. DeMateos v. Texaco, Inc., 562 F.2d 895, 897 (3d Cir.

1977), cert. denied, 435 U.S. 904 (1978).

30. Cf. Founding Church of Scientology v. Verlag, 536 F.2d

429, 436 (D.C. Cir. 1976) (“Where, as here, there has been no

weighing of the relative advantages of each forum but only a consid-

eration of the drawbacks of one, that discretion has been abused.").

Bv way of analogy, it appears appropriate to note that on appeal from

the grant of a preliminary injunction, “the standard of appellate re-

view'is simply whether the issuance of the injunction, in the light of

the applicable standard, constituted an abuse of discretion.” Doran

15a

not serve the defendants as a burden-shifting device on

appeal from an order in their favor.

B. The Applicable Factors

The Gilbert Court divided the elements to be con-

sidered into those affecting the private interests of the

litigants and those in which the public has an interest.

The former include

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

ability of compulsory process for attendance of un-

willing, and the cost of obtaining attendance of will-

ing, witnesses; possibility of view of premises, if

view would be appropriate to the action; and all

other practical problems that make trial of a case

easy, expeditious and inexpensive. There may also

be questions as to the enforcibility of a judgment if

one is obtained.?!

. Also relevant is the inability to implead other parties di-

rectly involved in the controversy.** These various ingre-

dients are weighed to determine the “relative advantages

and obstacles to fair trial."**

Among the public interest factors are problems of

creating court congestion and imposing jury duty in Liti-

gation centers that are removed from the origin of the

controversy, the benefit in a matter of public concern of

holding the trial in a place accessible to the locality, and

the appropriateness of having the trial in a forum that is

v. Salem Inn, Inc., 422 U.S. 922, 931-32 (1975) (emphasis added).

Thus, an order for a preliminary injunction may be reversed if the

trial court “commits an obvious error in applying the law, or makes a

serious mistake in considering the proof." A. O. Smith Corp. v. FTC.

530 F.2d 515, 525 (3d Cir. 1976); see Continental Group. Inc. v.

Amoco Chemicals Corp.. 614 F.2d 351. 357 (3d Cir. 1980).

31, 330 U.S. at 508.

32. Id, at 511; Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453

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

33. Id. at 508.

16a

familiar with the law governing the case rather than

having a court elsewhere untangle foreign law.**

We will examine each of these factors to determine

whether the defendants met their burden.

C. Private Interests

1. Convenience of Witnesses

If a dismissal is to be premised on the convenience

of witnesses, more than a mere allegation to that effect is

required. The rule for a statutory transfer, which is to be

more readily granted, is no less applicable to a dismissal

for forum non conveniens:

The party seeking the transfer must clearly specify

the key witnesses to be called and must make a gen-

eral statement of what their testimony will cover.

The emphasis must be on this showing rather than.

on numbers. One key witness may outweigh a great

number of less important witnesses. If a party has

merely made a general allegation that witnesses will

be necessary, without identifying them and indicat-

ing what their testimony will be the application for

transfer will be denied.

The district court opinion does not discuss the need for

such a showing, but rather merely refers generally to

witnesses as to damages and witnesses as to the poten-

tial supervening negligence of the Scottish air taxi serv-

ice, all of whom are in Scotland.*® Nor do the defendants

34. Gilbert, 330 U.S, at 508-09.

35. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure §3851, at 270-71 (1976); see Marbury-Patillo Construc-

tion Co., Inc. v. Bayside Warehouse Co., 490 F.2d 155, 158 (Sth Cir.

1974); Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (10th

Cir. 1967). This rule has wide authority in the district courts as well.

See, v.y., Follansbee Metals Co., Inc. v. John T. Clark & Son of N.

H.. Inc., 387 F. Supp. 574, 581 (W.D. Pa. 1974); Clay v. Overseas

Carner Corp., 61 F.R.D. 325, 331 (E.D. Pa. 1973); Shulof v. West-

inghouse Elec. Corp., 402 F. Supp. 1262, 1264 (S.D.N.Y. 1975).

36. 479 F. Supp. at 732.

17a

direct us to any affidavits setting forth the requisite spe-

cific information, and our search of the record detects

none. The requirement of specificity would seem more

acute in this case in view of the fact, mentioned above,

that in motions before the district court in California the

defendants made the claim, in some sense inconsistent

with the position now taken though perhaps more accu-

rate, that all witnesses relevant to strict liability or negli-

gence in manufacturing are in Pennsylvania or Ohio.*’

At the least, then, the district court did not have suf-

ficient information to weigh the convenience of wit-

nesses, and its conclusion that this factor favored de-

fendants appears to be without the requisite foundation.

One further error in discerning the balance of in-

convenience to witnesses deserves mention. The trial

judge stated that the convenience of expert witnesses,

like that of counsel, “is of small importance.”** No expla-

nation was given for this assertion,®® but the theory

seems to be either that expert witnesses are fungible or

that their testimony can be introduced effectively by de-

position. We agree with the authors of a noted treatise

that this view is unsound.*° In this case, as in many

others, the testimony of expert witnesses will be crucial.

Finding the most trustworthy and credible experts is not

37. See pp. 5-6 & note 8 supra.

38. 479 F. Supp. at 732.

39. The district court cited Car-Freshner Corp. v. Auto Aid

Mfg. Corp., 438 F. Supp. 82, 85 (N.D.N.Y. 1977), which simply

cites other cases without explaining. The proposition seems to be

traceable to Nacona Leather Goods Co. v. A. G. Spaudling & Bros..

Inc., 159 F. Supp. 269, 270-71 (D. Del. 1958). the judge in that case

simply concluded that the inconvenience to plaintiff's expert in one

forum was counter-balanced by the inconvenience to defendant's

expert of trial in the other forum. It was not that the two were insig-

nificant, but that they cancelled each other out.

40. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure §3852, at 275 (1976).

often easy, and the advantages of live testimony are not

to be discounted.*!

B. Availability of Compulsory Process and

Impleader

The defendants’ major factual contention when the

case comes to trial will be that the fatal crash at issue

was caused not by any manufacturing or design defects.

but by pilot error or the negligence of the foreign air taxi

service. Inability to implead foreign third-party defend-

ants was argued vigorously here as a problem with a trial

in this country, and it has, of course, generally been con-

sidered an important consideration favoring a forum non

conveniens dismissal.*? Because there is an action pend-

ing in Scouand by the decedents’ estates against the ap-

propriate Scottish defendants, which lawsuit Piper and

Hartzell have consented to join as codefendants, defend-

ants argued, and the district court concluded, that it

would be unfair and unduly burdensome for them to be

subjected to both trials. Although the extra burden is

readily apparent, the unfairness is not. The defendants

state their point as follows:

Defendants’ inability to join [the Scottish] parties as

defendants in this case would seriously prejudice

Defendants, through exposure to unnecessary,

duplicitous litigation, and inconsistent verdicts. If

Defendants are found liable here, they will be forced

to file an indemnity or contribution action in Scot-

41. Ild.: see Lvkes Bros. S.S. Co. v. Sugarman. 272 F.«.u 679.

681 (2d Cir. 1959); Berkshire Int'l Corp. v. Alba-Waldensian. Inc..

352 F. Supp. 841. 834-35 (S.D.N.Y. 1972) (Weinfeld. J.); Medich v.

American Oil Co., 177 F. Supp. 682 (E.D. Pa. 1959) (Biggs. J.. sit-

tung by designation ).

42. See Gilbert. 330 U.S. at 51): Fitzgerald v. Texaco. Inc.

521 F.2d 448. 453 (2d Cir. 1975). cert. denied. 423 U.S. 1052

(1976).

19a

land against these parties. In light of the fact that

Pennsylvania and Scottish law differ greatly with re-

spect to products liability, Piper faces the substan-

tial possibility, and great prejudice, of being held lia-

ble on a products liability theory in this case but

being forced to prove negligence in an indemnity or

contribution action in Scotland. Even if the same

standard of liability is applied in this action and in

an indemnity or contribution action in Scotland, De-

fendants run the substantial risk that different ju-

ries will find different facts and, hence, produce in-

consistent results.**

If the defendants are found liable on strict liability ©

here but must prove negligence against the air carrier to

obtain indemnity, that is not unfair, but simply the result

‘reached under the laws of the jurisdictions in which the

two companies reside. The air taxi operates exclusively

in Scotland and plans its operations and expenses ac-

cording to Scottish law. Piper and Hartzell reside in

strict liability jurisdictions, conduct most of their busi-

ness in strict liability states, and plan accordingly.

The defendants’ risk of inconsistent verdicts would

only exist if neither Pennsylvania nor Scotland followed

principles of res judicata. Under those principles. anv

subsequent verdict for plaintiffs would merge with a pre-

vious favorable judgment or be barred by a prior judg-

ment against the plaintiffs.** Res judicata is clearly ap-

43. Brief of Appellee Piper at 22. Hartzell's argument on this

point is simply conclusory:

As is reinforced by the plaintiffs survivors action against the air

carrier employing the pilot, the agency owning and maintain-

ing the airplane and the estate of the pilot in Scotland, those

parties should be joined as defendants and cannot be joined in

the United States but could be joined in the proper Forum.

Brief of Appellee Hartzell at 13.

44. See generally Restatement (2d) Judgments §§47. 48. 68.1

(Tent. Draft No. 1, March 28, 1973).

20a

plicable in American jurisdictions and we may assume,

in the absence of any affidavits or citations of Scottish

law to the contrary, that it is followed in Scotland as

well.*°

We therefore conclude that defendants’ inability to

implead other potentially liable parties would indeed

make litigation here more burdensome, but defendants

have not shown that it would also be unfair. It is properly

a factor in their favor on the motion to dismiss, but it is

not as weighty as they contend.

2. Desirability of Viewing the Premises

The district court concluded that, to the extent

weight was to be assigned this factor, it favored defend-

ants: “Familiarity with the topography around Tulla,

Scotland and inspection of the wreckage of the plane

would be aided by a trial in the British Isles.”*®

It is unclear whether the trial judge in fact ascribed

any significant weight to this element, and still more un-

certain is what benefit a lay jury would obtain from ob-

serving the wreckage in deciding whether the plane

crashed because the engine or propeller were incorrectly

manufactured or the pilot was negligent. Furthermore,

the topography of Scotland may, to the extent relevant,

be readily proved by testimony.

D. The Public Interest

The parties in arguing this case, and the trial judge

in deciding it, have placed the greatest importance on

whether, under the applicable choice of law rules,

American or Scottish law would apply to major aspects

of the claims. The district court concluded that, for the

most part, Pennsylvania law should apply to Piper and

45. Delendants submitted affidavits from Scottish counsel

only on the following points of Scottish law: (1) choice of law. (2)

damages that may be awarded, (4) statutes of limitations, and (4)

Capacity to sue.

46. 479 F. Supp. at 744.

2la

Scottish law to Hartzell.*” Because application of difler-

ent laws to the different defendants might confuse the

jury, and because ascertainment of Scottish law would

make the trial more difficult, the necessity of applying

foreign law to a portion of the case was considered the

“uppermost” factor favoring dismissal. *®

As will be discussed below, we conclude that the

district court erred in its choice of law determinations.

But even if the district court were correct in its conclu-

sion that a mixture of Scottish and American law would

be required, dismissal would not have been justified un-

der this Court's settled principles of forum non

conveniens.

1. The Necessity of Applying Foreign Law

First, we held in Hoffman v. Goberman that "|i]t is

settled that the mere fact that the court is called upon to

determine and apply foreign law does not present a legal

problem of the sort which would justify the dismissal of

a case otherwise properly before the court. The district

court was, therefore, in error in basing its action, in part

at least, on this ground.”*® Although there may be cir-

47. The trial court opinion stated:

Uppermost in our weighing of these public interest factors is

that a trial in this forum would be hopelessly complex and con-

fusing for a jurv as different laws will apply to different parties.

From our review of the applicable choice of law rules. it appears

that Pennsvivania law would apply to Defendant Piper and that

Scottish law would apply to Defendant Hartzell.

479 F. Supp. at 734.

48. See id.

49. 420 F.2d 423. 427 (3d Cir. 1970) (footnote omitted ) (law of

Netherlands Antilles involved); accord Mobil Tankers Co. v. Mene

Grande Oil Co., 363 F.2d 611, 615 (3d Cir.) (Venezuelan law), cert.

denied. 385 U.S. 945 (1966): Burt v. Isthmus Dev. Co., 218 F.2d

353. 357 (Sth Cir. ). cert. denied, 349 U.S. 922 (1955); see Founding

Church of Scientology v. Verlag. 536 F.2d 429. 436 (D.C. Cir. 1976)

(difficulty in applying German law not sufficient).

22a

cumstances in which the application of foreign law

would present dilliculties sufficient to favor dismissal —

because of difficulties of translation or because the for-

eign law itself has principles unknown to our jurispru-

dence — we are not faced with such a case here.*° Neg-

ligence principles are well-known on this side of the

Atlantic and of course there will be no translation prob-

lems in dealing with Scottish law.

Second. if trial here would confuse the jury because

a different country's law would apply to each defendant,

that confusion would either not be eliminated by a trial

in Scotland or would be eliminated only by unacceptable

unlairness to the plaintiff. If, as is unlikely, a Scottish

court as a “transieree” court would apply the same

choice of law rulings as would the court here, it would

have an equally difficult problem in applying the laws of

different’ countries to different defendants. Dismissal —

here would not eliminate the difficulty, but only shift it

to a foreign forum.

The district court, though, had the affidavit of Scot-

tish counsel that Scotland's choice of law rule for torts

was to apply the law of the place of injury to all facets of

the case, and therefore Scotland probably would apply

its own law to all claims. Even under the district court's

choice of law analysis, requiring a mixture of American

and Scottish law, it is apparent that the dismissal would

work a change in the applicable law so that the plaintiff's

strict liability claim would be eliminated from the case.

But this Court has held that a dismissal for forum non

conveniens, like a statutory transfer, “should not, de-

spite its convenience, result in a change in the applica-

ble law.”°' Only when American law is not applicable, or

50. 420 F.2d at 427.

51. De Mateos v. Texaco, Inc., 562 F.2d 895, 899 (3d Cir.

1977), cert. denied, 435 U.S. 904 (1978). The point is made by Pro-

fessor Bickel in terms of fairness to the plaintilf. See, Bickel, supra

note 11, at 28 & n.68 (because premise of forum non conveniens is

23a

when the foreign jurisdiction would. as a matter of its

own choice of law. give the plaintiff the benefit of the

claim to which she is entitled here. would dismissal be

justified.

2. Choice of Law Rules Under Klaxon and Barrack

As a federal court deciding a case premised on di-

versity jurisdiction. we are required by the Klaxon rule”

to apply the conflicts of law rules of the state in which

we sit. We are not permitted to fashion our own rules.

however more clear or salutory they might seem.** Com-

plicating matters here is that, for purposes of this litiga-

tion and its choice of law problems. we are in effect “sit-

ting’ in two different states. Moreover, though not

entirely disinterested, each state is in the position of

choosing between the laws of two other states.

The action against Piper was transferred under

§1404(a) from California to Pennsylvania. The law of the

transferor forum — i.e., California’s choice of law rules

existence of jurisdiction, “a case will be retained whenever it is not

perfectly clear that plaintiff can recover elsewhere if the facts he al-

leges are true’).

52. Klaxon Co. vy. Stentor Elec. Mfg. Co.. Inc.. 313 U.S. 487.

496 (1941). ,

53. The Supreme Court reaffirmed Klaxon in strong terms in

Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3. 4 (1975) (per

curiam) (reversing appellate court determination that, as a matter of

federal choice of law, a federal court could not apply the choice of

law rule of the state in which it sat if that jurisdiction had no policy

interest in the case). Thus the Court has. at least for now. answered

scholarly criticism of Klaxon and exhortations that it be overruled.

See. ¢.g.. Baxter. Choice of Law and the Federal System. 16 Stan. L.

Rev. 1. 32-42 (1963); Horowitz, Toward a Federal Common Law of

Choice of Law, 14 ULCLLA. L. Rev. 1191 (1967): cf P. Bator. P.

Mishkin, D. Shapiro & H. Wechsler. Hart & Wechsler's The Federal

Courts and the Federal System 713-18 (2d ed. 1973) (making point

bv rhetorical questions ).

24a

— should therefore, under Van Dusen v. Barrack,™ be

applied as to Piper.

Hartzell's situation is more complex. The California

district court ruled that personal jurisdiction over

Hartzell was lacking, both under California law and the

Due Process Clause. The court did not dismiss the case

against Hartzell, but rather quashed service of process

and ordered transfer to Pennsylvania along with

codefendant Piper. Although this Court has held that

transfer under §1404(a) is proper even though the trans- .

feror state lacked personal jurisdiction,®® that does not

resolve the problem whether the Klaxon and Barrack

54. 376 U.S. 612 (1964). The Barrack rule — that a transfer

should work no change in the applicable law — is a “general” one.

the Court added this qualifier:

|Wje do not and need not consider whether in all cases

§1404(a) would require the application of the law of the trans-

feror, as opposed to the transferee, State. We do not attempt to

determine whether, for example, the same considerations

would govern if a plaintiff sought transfer under §1404(a) or if

it was contended that the transferor State would simply have

dismissed the action on the ground of forum non conveniens

Id. at 639-40 (footnote omitted). Piper does contend that a Califor-

nia court would have dismissed this action on the ground of forum

non conveniens. This is implicit in its argument that we should now

dismiss the case on that ground and that California law on this issue

is the same as the federal law on which the issue has generally been

argued. Both Piper and Reyno agree, however, that California's

choice of law rules govern the case as to Piper. To follow the Court's

caveat would, moreover, be inefficient and wasteful of judicial re-

sources, for it would require the transferee court, after the trans-

feror court had granted a 1404(a) transfer, to examine the transfer-

or State’s law to ascertain whether the defendant should have

brought a motion to dismiss rather than to transfer in the first place.

See In re Air Crash Disaster at Boston, Massachusetts on July 31,

1973, 399 F. Supp. 1106, 1121-22 (D. Mass. 1975).

55. In Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962), the

Supreme Court held that transfer for improper venue under 28

U.S.C. §1406(a) was proper whether or not the court in which the

25a

rules would still require us to apply the choice of laws

rule of the transferor state.

To state the problem is, we believe, to explain why

California’s law may not apply to Hartzell: if California's

exercise of jurisdiction would violate due process, so

would application of that state’s choice of law rules.

Furthermore, Barrack is not so rigid. The Court there

stated as a general rule of statutory construction of

§ 1404(a) that, to be “in the interest of justice,” a transfer

should not work a change in the applicable law.°’ We

NOTE 55 — (Continued)

motion was filed had personal jurisdiction over the defendants. Cf.

Martin v. Stokes, No. 78-3390, slip op. at 5-6 (6th Cir. filed June 19,

1980) (“following a transfer under §1406(a), the transferee district

_ court should apply its own state law rather than the state law of the

transferor district court”) (citing cases). This Court applied

Goldlawr by analogy to §1404(a) and held that if lack of both venue

and persona) jurisdiction could not defeat a transfer, then want of

the latter alone could not. United States v. Berkowitz, 328 F.2d 358,

361 (3d Cir.), cert. denied, 379 U.S. 821 (1964).

56. See Kirgis, The Roles of Due Process and Full Faith and

Credit in Choice of law, 62 Cornell L. Rev. 94, 103 (1976) (forum

must have reasonable due process basis for applying own law,

which does not exist if party opposing application of forum's law has

no minimum contacts with forum, the transaction giving rise to the

claim is not connected with the forum, or application of the forum's

law would otherwise be manifestly unfair).

57. The plaintiff in the Barrack case challenged, by writ of

mandamus, the district court's order transferring the case from

Pennsylvania to Massachusetts. He contended that the transfer

could not be, as §1404(a) requires, “in the interest of justice.” be-

cause it was likely to be accompanied by a prejudicial change in the

state law to be applied. 376 U.S. at 626. The district court had held

that transfer could be ordered regardless of the possibility of a

change in law, id. at 626-27, our Court agreed with the plaintiff that

it could not, see Barrack v. Van Dusen, 309 F.2d 953 (3d Cir. 1963),

and the Supreme Court, disagreeing with both the trial and appel-

late courts, reversed. A transfer would not be unfair, it held, because

“[a] change of venue under §1404(a) generally should be, with re-

spect to state law, but a change of courtrooms.” 376 U.S. at 639.

26a

conclude that this case comes within an exception, the

possibility of which was noted in Barrack,™ to the appli-

cation of the transferor state’s law. As with any other

statute, we must construe §1404(a) to avoid any consti-

tutional problem,™” and so hold that when there has

been an interstate transfer without personal jurisdiction,

the transferor state's choice of law does not apply to that

detendant. Because Pennsylvania does have personal ju-

risdiction, it is that state in which the federal court is lo-

cated for the Klaxon purpose of finding the choice of law

rules governing the case as to Hartzell.

Our analysis so far does not differ from that of the

district court, which held that California's choice of law

rules applied to Piper and Pennsylvania's rules applied to

Hartzell.©° The court went on to hold that under Califor-

nia’s governmental interest approach the Scottish law of

wrongful death would apply to make Reyno an improper

litigant, but Pennsylvania's law of strict liability rather

than Scotland's negligence law would govern the theory

of the tort.°' Pennsylvania's significant contacts ap-

proach was thought to require that Scottish law apply to

all facets of the claim against Hartzell.°* We must exam-

ine these rulings to determine whether they are errone-

ous as a matter of law.

58. See note 54 supra.

59. Sev, ¢.g.. NLRB v. Catholic Bishop of Chicago. 440 U.S.

490, 507 (1979).

60. 479 F. Supp. at 734.

61. The district court relied primarily on Reich v. Purcell, 67

Cal. 2d 551, 432 P.2d 727, 63 Cal. Rptr. 31 (1967); and Hurtado v.

Superior Court. 11 Cal. 3d 574, 522 P.2d 666. 114 Cal. Rptr. 106

(1974). while mentioning in passing Bernhard v. Harrah's Club, 16

Cal, 3d 313, 546 P.2d 719, 128 Cal. Rptr. 215. cert. denied. 429 U.S.

458. 1976), 479 F. Supp. at 735-36.

62. See 479 FF. Supp. at 736-37 crelving on Griffith v. United

Mrlines, 416 Pa, 1. 203 A.2d 796 (1964); and Lewis v. Chemetron.

448 F. Supp. 211 (WD. Pa. 1978).

27a

a. California Conflicts Law Applied to Piper

California was a pioneering state in the governmen-

tal interest analysis approach to choice of law that was

developed by Professor Currie.® In Reich v. Purcell,

the California Supreme Court abandoned the traditional

view that the law of the place of wrong (injury) must be

applied in tort actions regardless of the issues, and estab-

lished in its stead the principle that “(t]he forum must

search to find the proper law to apply based upon the in-

terests of the litigants and the involved states."®°

Also integral to the holding in Reich v. Purcell was

the introduction into California law of the concept of

“false conflicts." In Reich, the wrongful death action

' arose trom an automobile accident that occurred in Mis-

souri between an Ohio plaintiff and a California defend-

_ant. Missouri, the state of injury, limited compensation

for wrongful death, but neither California nor Ohio had

any limitation. The California Supreme Court held that “

as to the issue of the extent of damages, as opposed to

the standard of conduct on which liability was based.

there was no true conflict in governmental interests.

Since California had no limitation on damages, it had no

63. Professor Brainerd Currie is generally considered to be the

father of modern governmental interest analysis. See Bernhard v.

Harrah's Club, 16 Cal. 3d 313, 546 P.2d 719, 722, 128 Cal. Rptr.

215. 218, cert. denied, 429 U.S. 859 (1976); Reese, American

Trends in Private International Law: Academic and Judicial Ma-

nipulation of Choice of Law Rules in Tort Cases, 33 Vand. L. Rev.

717, 720 (1980); Brilmayer, Interest Analysis and the Myth of Leg-

islative Intent, 78 Mich. L. Rev. 392, 392-93 (1980). Most of his

writing on the subject is collected in B. Currie, Selected Essays on

the Conflict of Laws (1963).

64. 67 Cal. 2d 551, 432 P.2d 727, 63 Cal. Rptr. 31 (1967).

65. 67 Cal. 2d 553, 432 P.2d at 729. 63 Cal. Rptr. at 33.

66. The term was not explicitly used in that case. but the

methodology was. See id. at 555-56, 432 P.2d at 730-31. 63 Cal.

Rptr. at 34-35, Bernhard v. Harrah's Club. 16 Cal. 3d 313. 546 P.2d

719, 722, 128 Cal. Rptr, 215, 218, cert. denied, 429 U.S. 859 (1976).

,

interest in protecting its resident defendant from a high-

er recovery. Moreover, the defendant's California insur-

ance policy would be calibrated to the potential burdens

of larger claims. Missouri had an interest in the standard

of conduct for behavior within its borders, but its interest

in limiting damages was solely to protect in-state defend-

ants. It had no substantial interest in extending that pro-

tection to defendants from states with no such limita-

tions, and Ohio, as the state where the decedents'’

estates were probated, did have a substantial interest in

unlimited recovery. Therefore, Ohio's law as to the dam-

ages issue was applied.®’ -

Subsequent cases indicate a further refinement of

the governmental interest and false conflict methodol.

ogy termed a “comparative impairment” approach.® —

This approach comes into practice only after a “ ‘prelimi-

nary analysis has identified a true conflict of the govern-.

ment interests involved.’ Once this preliminary step is

satisfied, the court resolves a true conflict by “ ‘deter-

min|ing] which state's interest would be more impaired

if its policy were subordinated to the policy of the other

state. . . . [T]rue conflicts should be resolved by apply-

ing the law of the state whose interest would be the more

impaired if its law were not applied.’ "®°

67. Reich v. Purcell, 67 Cal. 2d 551, 432 P.2d 727, 731, 63 Cal.

Rptr. 31, 35 (1967), see Hurtado v. Superior Court, 11 Cal. 3d 574,

581-83, 522 P.2d 666, 670-71. 114 Cal. Rptr. 106, 110-11 (1974)

(false conflict between plaintiffs’ state's limitation of damages and

defendant's state's allowance of full recovery; full recovery allowed).

The false conflicts methodology is also attributable to Professor

Currie, as well as Professor Cavers, see B. Currie, supra note 62, at

189; D. Cavers, The Choice-of-Law Process 89-90 (1965), both of

whom are extensively cited in Hurtado.

68. Offshore Rental Co., Inc. v. Continental Oil Co., 22 Cal. 3d

157. 165-66, 583 P.2d 721, 726. 148 Cal. Rptr. 867, 872 (1978);

Bernhard v. Harrah's Club. 16 Cal. 3d at 321, 546 P.2d at 723-24,

128 Cal, Kptr. at 219-20 (1976).

69. Offshore Rental Co., Inc. v. Continental Oil Co.. 22 Cal. 3d

157, 165-66, 583 P.2d 721, 726. 148 Cal. Rptr. 867. 872 (1978)

(quoting Bernhard, supra note 68).

29a

Among the relevant factors to be considered in de-

termining choice of law under California's comparative

impairment approach are the following:

(1) The status of the law — whether it is to be con-

sidered anachronistic or ascendant in the common law

jurisdictions. “ ‘If one of the competing laws is archaic

and isolated. . ., it may not unreasonably have to yield

to the more prevalent and progressive law, other factors

of choice being roughly equal.’ "”°

(2) Insurance and other planning for risks. Parties

may be expected to plan their activities with insurance

in mind, and that planning may affect the comparative

' fairness of two competing rules of liability.”

As we have mentioned, the district court divided the

‘case against Piper into distinct issues, and ruled that a

California court would apply its law as to one and Scot-

tish law as to others. He then employed what conflicts

scholars refer to as depecage, defined as “the process of

applying the rules of different states to determine differ-

ent issues in the same case.””* Although the California

Supreme Court has not explicitly adopted this method, it

is implicit in that court's analysis of cases and it is con-

sistent with modern governmental interest analysis to

examine comparative governmental interests as to each

issue, to the extent the issues are separable and the bal-

70. Id. (emphasis deleted) (quoting Freund, Chief Justice

Stone and the Conflict of Laws, 59 Harv. L. Rev. 1210, 1216

(1946)).

71. Id. at 167, 583 P.2d at 734, 148 Cal. Rptr. at 872.

72. Reese, Depecage: A Common Phenomenon in Choice of

Law’, 73 Colum. L. Rev. 58. 75 (1973); see Broome v. Antler’s Hunt-

ing Club, 595 F.2d 921, 923 (3d Cir. 1979); R. Leflar, American

Conflicts Law §109, at 221-22 (3d ed. 1977).

30a

ance of comparative interests may vary.’* We shall

therefore examine separately the issues identified by the

parties and the district court: the standard of liability,

damages for wrongful death, and the capacity of the

plaintiff to bring a wrongful death suit as a

representative.

Any asserted conflict between American strict liabil-

ity and Scottish negligence law is, we believe, a false

one. Two basic policies underly theories of tort liability:

deterrence of harm-causing conduct and compensation

of persons injured by that conduct. In private tort law, in

which civil rather than criminal liability is imposed, the

deterrent function is accomplished by compensation of

the plaintiff. The choice between holding a manufac- .

turer liable only for negligence and holding it strictly lia-

ble for any dangerous products or design is, practically

speaking, a matter both of searching for optimal deter- °

rence of harmful conduct and of allocating the costs of

injuries either to producers or consumers. A negligence

standard is, broadly speaking, more protective of produc-

ers, while strict liability is more solicitous of consumers.

The perceived conflict in this case is between Scot-

land's interest in encouraging industry by protecting

manufacturers and making it relatively more difficult for

consumers ‘to recover. Pennsylvania, by contrast, in

adopting strict liability, has shifted some of the burdens

of injuries from consumers to producers. By adopting

this policy of increased deterrence, it hopes to make

manufacturers more careful in production and design

than they would be if held to a negligence standard. “*

73. See R. Leflar, supra note 72, at 222; Reese, supra note 72,

at 75. The approach is also implicit in the analysis of Professor

Cavers. whose work is often cited by the California Supreme Court.

See D. Cavers. supra note 67, at 40-43.

74. In a recent case in which the California Supreme Court

adopted comparative negligence into strict liability, the underlying

policy of the latter was said to be to shift the cost of injuries from

defective products from consumers to manufacturers. But the court

3la

Applving Pennsylvania's strict liabilitv standard to

its resident manufacturer would serve that state's inter-

est in the regulation of manufacturing. Scotland's inter-

est in encouraging industry within its borders would not

be impaired, however, by applying a stricter standard of

care on a foreign corporation which has-no industrial op-

erations in Scotland. Furthermore, Scotland would have

to interest in denying compensation to its residents for

the purpose of benefiting a foreign corporation. Finallv.

imposition of strict liability on Piper cannot be said to be

unfair to it. Inasmuch as Pennsylvania. the state in

which Piper makes its product, and the vast majority of

American jurisdictions in which most of Piper's aircraft

are sold and flv. have strict liability.”> that is the legal

standard under which it plans its operations.

Pennsyivania's interest in deterring defects in prod-

ucts can be served without impairing any significant in-

terest of Scotland. Application of Scotland's negligence

emphasized that strict liability is not absolute liability and does not

make the manufacturer an insurer of his product's safety. Dalv v.

General Motors Corp., 20 Cal. 3d 725, 733. 575 P.2d 1162. 1166.

144 Cal. Rptr. 380. 384 (1978). In addition to spreading the costs of

accidents, strict liability is intended to increase a manufacturer's in-

centive to produce safe products. See id. at 737-38, 575 P.2d at

1169, 144 Cal. Rptr. at 387. See Calabresi, Optimal Deterrence and

Accidents, 84 Yale L. J. 656 (1975) (strict liability better serves goal

of optimal deterrence — minimization of accident and prevention

costs); Calabresi & Hirschoff Toward a Test for Strict Liability in

Torts, 81 Yale L. J. 1055, 1074-84 (1972) (shift from negligence to

strict liability cannot be explained simply in terms of better distribu-

tion of costs: strict liability’s appeal is also in greater deterrence of

harmful conduct); cf. Prosser, The Assault Upon the Citadel (Strict

Liability to the Consumer), 69 Yale L. J. 1121. 1122 (1960) (one

argument that has convinced courts is that supplier of goods should

be responsible for the harm they cause. regardless of fault).

75. See. e.g.. Wade. On Product “Design Defects” and Their

Actionability. 33 Vand. L. Rev. 551. 555 (1980) (major point of con-

troversy in America is no longer whether strict liability should be

adopted. but what its precise standards should be).

32a

law would only harm resident beneficiaries without any

countervailing benefit to its industrial economy. We

therefore conclude that, as between Pennsylvania and

Scottish law on this issue, a California court would apply

Pennsylvania's strict liability standard. Similar consider-

ations would govern any greater restrictions on recovery

for wrongful death that Scotland may have.”®

The district court declined to make any definitive

ruling on the issue of plaintiff ’s capacity to sue because

of the paucity of available information for balancing

comparative governmental interests. 479 F. Supp. at

735. There was thought to be no need to decide this

question, because the court concluded for other reasons

that the action should be dismissed and brought anew in -

Scotland. ”’

Because we reverse the dismissal, it will be neces-

sary for the trial judge to decide that issue based upon

76. Courts employing governmental interest analysis have not

struggled long to determine that a state where plaintiff but not de-

fendant resides has no interest in restricting recovery for wrongful

death of its citizens against foreign corporations. See, e.g., Hurtado

v. Superior Court, 11 Cal. 3d 574, 522 P.2d 666, 114 Cal. Rptr. 106

(1974); Cf. Rosenthal v. Warren, 475 F.2d 438 (2d Cir.) (applying

New York government interest analysis; New York forum would ap-

ply its own unlimited recovery rather than limitation of state of de-

fendant where all tortious conduct occurred), cert. denied, 414 U.S.

856 (1973); Kuhne, Choice of Law in Products-Liability, 60 Calif.

L. Rev. 1, 28 (1972) (“Under a governmental-interest approach, [a]

proplaintiff tendency will be conceptualized . . . by imputing a

greater state interest to recovery law than to those refusing

recovery.”)

77. On the choice of law issue as to representative capacity,

the court stated: “We. . . only have affidavits from lawyers from

Scotland as to what the rules of law are in that country and thus we

cannot make. . . any defnitive ruling on the purpose of the Scot-

tish law or thereby the choice of law.” 479 F. Supp. at 735. It later

concluded only that “it appears the law of Scotland would be applied

to Defendant Piper with respect to the wrongful death laws. Under

this interpretation Plaintiff would not be a proper litigant.” Jd. at

736.

33a

additional information. If it is held that Reyno does not

. have representative capacity, it will be necessary to allow

a substitution of parties so that the decedents’ estates

can bring the action directly. Such a substitution would

not destroy diversity and should be granted in the inter-

ests of justice. ”®

Guiding the trial judge’s decision should be the re-

quirement of Fed. R. Civ. P. 17(b) that the capacity of an

individual to sue in a representative capacity “shall be

determined by the law of the state in which the district

court is held.””® In addition to examining the laws of

California and Pennsylvania to determine whether

Reyno has representative capacity,®° the trial court

should consider whether the defendants’ challenge to

the plaintiff 's capacity to sue has come too late in the

litigation. ®?

78. Fed. R. Civ. P. 17(a); see Field v, Volkswagenwerk AG, No.

79-1710, slip op. at 24-25 (3d Cir. July 10, 1980).

79. Rule 17(b) in full provides:

The capacity of an individual, other than one acting in a repre-

sentative capacity, to sue or be sued shall be determined by the

law of his domicile. The capacity of a corporation to sue or be

sued shall be determined by the law under which it was organ-

ized. In all other cases capacity to sue or be sued shall be deter-

mined by the law of the state in which the district court is held,

except [(1) a special rule for partnerships and other

unincorporated associations; and (2) bankruptcy receivers}.

(emphasis added); see General Heat & Power Cv. v. Diversified

Mortgage Investors, 552 F.2d 556, 557 n.1 (3d Cir. 1977) (suggest-

ing that Rule 17(b) encompasses the state's conflict of law rules un-

der Klaxon); Jacobs v. Adams, 601 F.2d 176, 178-79 (Sth Cir. 1979)

(applying conflicts of laws rule to determine scope of power or right

to bring suit).

80. The court “is held” in California as to Piper and in Pennsyl-

vania as to Hartzell. See pp. 24-26 supra.

81. Fed. R. Civ. P. 9(a) requires that a party desiring to raise an

issue as to “the capacity of any party tosue. . . or the authority of a

party to sue. . . in a representative capacity. . . do so by specific

negative averment.” The federal rules do not make clear when in

34a

b. Pennsylvania Conflicts Law Applied to Hartzell

Citing Griffith v. United Airlines,®? the district

court applied the “significant contacts” approach to de-

termine that Scotland's standard of liability, rather than

that of Ohio or Pennsylvania, applied to Hartzell.®* But a

close examination of Griffith and, more importantly,

subsequent elaborations by the Pennsylvania Supreme

Court reveals that Pennsylvania’s approach to choice of

law is quite similar, at least for purposes of this litigation,

to that of California. Pennsylvania first looks to identify

and thus avoid false conflicts, and then, when a true

conflict is present, exmaines and compares the compet-

ing governmental interests.

In Griffith. the Pennsylvania Supreme Court over-

turned the old rule that the law of the state of wrong gov-

erns all issues in tort actions,”* but it did not specifically

NOTE 81 — (Continued)

the stage of a litigation lack of capacity must be averred, but be-

cause lack of capacity is a dilatory defense. Professors Wright and

Miller state that it “should be raised promptly. Any unreasonable de-

lay may encourage the court to deny the objection on the ground of

prejudice.” 6 C. Wright & A. Miller. Federal Practice and Proce-

dures §1542. at 640 (1971) (footnote omitted). See 5 Id. §1295, at

397 (objection to party's capacity should be analogized to an affirm-

ative delense and waived if not asserted early in the litigation by mo-

tion or responsive pleading). The record reveals that Reyno’s capac-

ity was not challenged by Piper until it joined Hartzell’s motion to

dismiss after the case had been transferred to the Middle District of

Pennsylvania. This motion came after Piper had moved to remove

the case from a California state court to a federal court, had filed its

answer to the complaint, and had successfully moved to transfer the

case to the Middle District of Pennsylvania.

82. 416 Pa. 1. 203 A.2d 796 (1964).

83. 479 F. Supp. at 736-37. All three jurisdictions have con-

tacts with or interests in the alleged tort. Scotland is the residence of

the decedents und the place of the fatal crash. Hartzell manulac-

tured the allegedly detective propeller in Ohio and it was assembled

into the Piper aircralt in Pennsylvania.

84. 416 Pa. at 21-23. 203 A.2d at 805-06,

35a

set forth the contours of that rule's replacement. In tact,

as the court later indicated, once governmental interests

were examined Griffith involved a false conflict situa-

tion.®® The state in which an airplane crashed was held

to have no interest in enforcing its limitation of damages

for wrongful death when neither party was a resident.”

The Pennsylvania Supreme Court noted three gen-

eral approaches competing to replace the old rule: (1)

Professor Currie’s early emphasis on applying the fo-

rum's law when the forum has a legitimate interest in

the issue presented;®’ (2) Professor Ehrenzweig’s stress

on the interests of the parties, specifically looking to

whether the defendant would have planned by insur-

. ance for the risks to which he would be exposed by the

applicable law;®® and (3) the “significant contacts” ap-

proach of the Restatement (Second) of Conflicts, under

‘which a court applies the law of the state with the most

significant relationship with the occurrence and the par-

ties.°° Rather than choose among these alternative ap-

proaches, the Pennsylvania Supreme Court adopted

what it believed was the essence of all three: “a more

flexible rule which permits analysis of the policies and

interests underlying the particular issue before the

court.”"°°

Subsequent cases confirm that Pennsylvania courts

follow a governmental interest analysis approach, with a

state’s contacts being considered significant only when

85. Kuchinic v. McCrory, 422 Pa. 620, 624 & n.4, 222 A.2d

897, 899 n.4 (1966).

86. Griffith, 416 Pa. at 24, 203 A.2d at 807.

87. Id. at 14, 203 A.2d at 802 (citing Currie, Comments on

Babcock v. Jacksons, 63 Colum. L. Rev. 1212, 1233 (1963)).

88. Id. (citing Ehrenzweig, Comments on Babcock v. Jackson,

63 Colum. L. Rev. 1212, 1243 (1963)).

89. Id. at 14-15. 203 A.2d at 802-03 (citing Restatement (2d)

Conflict of Laws §§379, 389a (1971) and writings of its Reporter.

Professor Reese).

90. Id. at 21, 203 A.2d at 805 (footnote omitted).

36a

the behavior giving rise to the contact furthers or abro-

gates a state policy. Where the place of accident is

fortuitious and the state where the accident occurred

has no interest in the regulatory standard at issue, any

conflict between that state and a state truly interested

because, for example, it constituted the residency. of the

parties is, Pennsylvania appears to suggest, a false one.®'

In McSwain v. McSwain, the court stated its ap-

proach as follows:

Whether the policies of one state rather than an-

other should be furthered in the event of conflict

can only be determined within the matrix of specific

litigation. What should be sought is an analysis of

the extent to which one state rather than another

has demonstrated, by reason of its policies and their

connection and relevance to the matter in dispute, a‘

priority of interest in the application of its rule of

law.

The latest discussion in Cipolla v. Shaposka®*? summa-

rized the approach of the three cases discussed above as

calling upon the court to determine which state “has the

greater interest in the application of its law to the ques-

tion now before us.” Moreover,

In determining which state has the greater interest

in the application of its law, one method is to see

what contacts each state has with the accident, the

contacts being relevant only if they relate to the

“policies and interests underlying the particular is-

sue before the court.” When doing this it must be

91. Kuchinic v. McCrory, 422 Pa. at 624 & n.4, 222 A.2d at 899

& n.4.

92. McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682

(1966) (citing Griffith, as well as California and New York cases).

93. 439 Pa. 563, 565, 267 A.2d 854, 855 (1970).

37a

remembered that a mere counting of contacts is not

what is involved. The weight of a particular state's

contacts must be measured on a qualitative rather

than quantitative scale.®

These cases indicate to us that the primary approach of

the Pennsylvania Supreme Court in choice of law is gov-

ernmental interest analysis. Our determination as to

whether the Pennsylvania court would apply American

strict liability and unlimited recovery for wrongful death.

rather than the negligence and damage limitations law

of Scotland, therefore follows our prediction of California

law. Indeed, the district court ruled that American

. standards of liability would control under governmental

interest analysis applied as to California.® It is apparent.

then, that the district court erred in concluding that for-

‘eign law would govern a substantial part of the case, and

it is likewise apparent that the choice of law factor

94. Id. at 566, 267 A.2d at 856 (quoting Griffith, 416 Pa. at 21.

203 A.2d at 805).

95. There is some difference between California and Pennsyl-

vania, on the one hand, and Ohio on the other as to the standard of

proof in strict liability. Ohio has adopted in full Restatement (2d)

Torts 402A, subjecting to liability one who sells a product in a defec-

tive condition “unreasonably dangerous.” See, ¢.g., Temple v. Wean

United, Inc., 50 Ohio St. 2d 317, 364 N.E.2d 267, 168 (1977) (Svl-

labus by the Court); cf. Anton v. Ford Motor Co., 400 F. Supp. 1270.

1273-76 (S.D. Ohio 1975) (reviewing products liability decisions of

the Ohio Supreme Court). Pennsylvania and California have re-

moved the “unreasonableness” requirement as being inconsistent

with the policy of strict liability. See ¢.g., Barker v. Lull Eng. Co..

Inc., 20 Cal. 3d 413, 423-27, 573 P.2d 443, 449-52, 143 Cal. Rptr.

225, 231-34 (1978); Azzarello v. Black Bros. Co., 480 Pa. 547. 391

A.2d 1020 (1978). Indeed, our Court in interpreting Pennsylvania

law has repeatedly held that use in a jury chasge of the Restatement

2d’s “unreasonably dangerous” language is reversible error. E.q..

Matlocks v. Daylin, Inc., 611 F.2d 30 (3d Cir. 1979); Bailey v. Atlas

Powder Co., 602 F.2d 585 (3d Cir. 1979). Giving separate charges

on the Ohio standard for Hartzell and the Pennsylvania standard for

Piper need not necessarily confuse the jury.

38a

weighted heavily in favor of dismissal for forum non

conveniens.

E. Other Elements of Public Interest

We have held that under the applicable choice of

law rules, Pennsylvania and Ohio are the jurisdictions

with the greatest policy interest in this dispute. It follows

that any other public interest factors that should be con-

sidered under the Supreme Court cases of Gilbert and

Koster favor trial in this country rather than Scotland.

III. CONCLUSION

Because the defendants did not meet the burden re-

quired of them for a forum non conveniens dismissal,

the judgment of the district court will be reversed and .

the cause remanded for further proceedings consistent

with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Ib

EXHIBIT B

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 79-2747

GAYNELL REYNO,as Personal Representative of the Estate of

William Fehilly, Liam Stewart Fehilly, William James

McDougall Storm, David Vincent Moran, and

Peter Cunningham Scott, Appellant

Vv.

Piper AIRCRAFT COMPANY, a corporation; Avco LYCOMING

Enaine Group, a Division of Avco CORPORATION;

HARTZELL PROPELLER, INC., a corporation

On Appeal From The United States District Court For The

Middle District Of Pennsylvania

C. A. No. 77-1159

Argued May 22, 1980

Before: ADAMS, VAN DusEN and HIGGINBOTHAM,

Circuit Judges

Order Amending Opinion

It is OnDERED that the slip opinion filed July 24, 1980 in

the above matter be and is hereby amended as follows:

Page 7, first paragraph

should read:

At the time of the transfer motion, critical facts such

as where various witnesses are, where the crash occurred,

where the wreckage was located, and who owned the

plane, were known. All that seems new was that a British

administrative agency would investigate and report on the

accident and that the decedents’ estates would institute a

separate action against the air taxi service in Scotland.

Although these last facts are indeed relevant to a forum

2b

non conveniens motion, they are hardly surprising or

significantly new.

Dated: September 15, 1980.

A True Copy:

Teste:

By THe Court,

ArLIN M. ADAMS

Circuit Judge

Clerk of the United States

Court of Appeals for the

Third Circuit

Ic

EXHIBIT C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil Action No. 77-1159

GAYNELL REYNO, Personal Representative of WILLIAM

Fenty, Liam STUART FeHILLY, LiAM STUART FEHILLY,

WituiaM James McDouca.t Storm, DAvip VINCENT MARAN

and Peter CUNNINGHAM Scott, Plaintiffs

v.

Piper AiRCRAFT COMPANY, a corporation; Avco LYCOMING

EnotnE Division, a Division of Avco Corporation;

HARTZELL PROPELLER, INC., a corporation, Defendants

Memorandum

(filed October 19, 1979)

This action arises out of an airplane crash near Tulla,

Scotland on July 27, 1976 in which all persons aboard were

killed. The Plaintiff, Gaynell Reyno, instituted this suit as the

personal representative of five decedents, William Fehilly,

Liam Stuart Fehilly, William James McDougal Strom, David

Vincent Moran, and Peter Cunningham Scott. Gaynell Reyno

seeks general damages for the heirs and next of kin of the

above decendents and damages for funeral and burial

expenses in this suit styled as one for wrongful death on the

basis of products liability and negligence theories. The

remaining Defendants, Piper Aircraft Company and Hartzell

Propeller, Inc., were the manufacturers of the aircraft and

propeller respectively. A number of motions are presently

before the court, a motion to dismiss filed by Defendant

Hartzell Propeller, a motion for judgment on the pleadings or

for summary judgment filed by Piper Aircraft, and two

motions to strike a responsive brief filed by the Plaintiff.

+ fter reviewing the extensive materials submitted by all

parties, we have concluded that this action must be dismissed

on the ground of forum non conveniens. This dismissal will

2c

be conditioned on the Defendants abiding by their stipulation

to submit to the jurisdiction of the courts of Scotland and

their waiver of the Scottish statute of limitations.

Several issues were raised by the motions of the

Defendants. Other than their main argument that the action

should be dismissed under the doctrine of forum non

conveniens, the Defendants also asserted that under applicable

choice of laws rules that the law of Scotland would control

this action and that pursuant to Scottish law, the Plaintiff

neither has standing nor a right to proceed under the theory

of strict tort liability. This question of the applicable law is

interrelated with the analysis for forum non conveniens and

because of our decision that the Defendants have shown

overwhelming reasons for dismissal under this doctrine, we

need not directly confront the standing and liability issues.

The Plaintiff has also raised the question of estoppel which

we have found to be unpersuasive.

Our primary attention therefore is focused on the factors

applicable to the doctrine of forum non conveniens and the

question whether we should exercise jurisdiction over this

action brought by reason of an aircraft accident in Scotland,

in which Scottish citizens who were passengers and a Scottish

pilot, acting in the course of his employment with a Scottish

Air Service, were killed while flying in Scottish airspace and

when all decedents’ survivors, the real parties in interest, are

citizens and residents of Scotland and more particularly, when

the only contact with Pennsylvania is that it was the site of

the manufacture of the airplane involved in this litigation, not

the propeller which was manufactured and designed in Ohio,

over seven years prior to the date of the fatal accident. Too

much has happened from the date the airplane left the plant

of Piper Aircraft, which goes to the heart of the question of

liability, that the contact with this forum with respect to this

action can at best be described as plainly insignificant.

The procedural history of this case is important to our

decision of dismissal. The action was instituted by Plaintiff

Reyno in the Superior Court of the state of California for the —

>

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county of Los Angeles in July of 1977. After being removed

to federal court in August of that year, Defendant Hartzell

filed a motion to dismiss the action for lack of personal

jurisdiction or in the alternative to transfer the action

pursuant to 28 U.S.C. §1404(a). Defendant Piper then joined

in Defendants Hartzell’s motion to transfer the action on

November 23, 1977. The District Court entered an order on

December 21, 1977 granting Defendant Hartzell’s motion to

quash service of process and granting the motion to transfer

this action to the United States District Court for the Middle

District of Pennsylvania. The quashing of service of process

to Hartzell was based on due process considerations set forth

in INTERNATIONAL SHOE COMPANY v. WASHINGTON, 326 U.S.

310 (1945). The court did not dismiss the action against

Defendant Hartzell since valid service against it was possible

in the Middle District of Pennsylvania. The importance of the

transfer of the action and the quashing of service against

Hartzell lies in the applicable choice of laws rule that is

relevant to each Defendant under rules of VAN DuSEN v.

BARRACK, 376 U.S. 612 (1964) and KLAxon Co. v. STENTOR

EvLectric MANUFACTURING, 313 U.S. 481 (1944).

The facts as noted center on the crash cf wn aircraft on

July 27, 1976 in which the pilot and all passengers were killed

in the navigable air space near Tulla, Scotland. The aircraft

involved in the accident was a Piper Model TA-23 bearing

British registration mark G-AYSF which was manufactured by

Defendant Piper at Lock Haven, Pennsylvania. The plane’s

propeller was designed and manufactured by Defendant

Hartzell Propeller, Inc. in Ohio. The aircraft was being

piloted at the time of the accident by a Scottish citizen and

resident, over mountainous terrain in southern Scotland.

Subsequent to the manufacture of the aircraft involved in this

accident it was sold and delivered to a purchaser in Ohio for

use in the United States. By a chain of events, apparently still

unknown to the Defendants, the plane came to be owned and

operated by a Scottish air-taxy company in Scotland and the

British Isles. The plane was owned, operated, maintained, and

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serviced by the Scottish owner for several years preceding the

accident of July 27, 1976. The British Department of Trade

Investigation investigated the accident shortly after its

occurrence. Presently, what remains of the wreckage is in the

possession of the British Department of Trade Investigation.

The Plaintiff, Gaynell Reyno instituted this action as the

personal representative of the estates of five of the decedents.

All of these decedents were citizens and residents of the

country of Scotland. Also, all heirs and next of kin, and all

those persons entitled to recover by virtue of the deaths of the

passengers, (if any recovery is decreed), are citizens and

residents of the country of Scotland. Plaintiff Reyno is a

citizen and resident of California and is not related to the

decedents.

The Defendants assert that the accident was due to pilot

error or improper maintenance and servicing of the aircraft

and in this respect have stated their desire and inability to join

the operating company by whom the pilot was employed, the

pilot’s estate, and the owner and maintainer of the aircraft. A

lawsuit has been brought before the courts of Scotland

naming as defendants the operating company, McDonald

Aviation, Ltd., the owner of the plane, Air Navigation and

Trading Company, Ltd., the executor of the pilot’s estate,

and the Civil Aviation Authority. Also an action was

commenced in the courts of Great Britain against Piper

Aircraft and Hartzell propellers along with MacDonald

Aviation and Air Navigation and Trading Company by a

personal representative of the sixth passenger in the aircraft at

the time of the accident, the only passenger not represented

by Gaynell Reyno in the instant action. Therefore at least one

action is pending before the courts in the United Kingdom

against the present Defendants and other involved parties.

We now begin with a discussion of the factors that we

believe substantially point to the dismissal of this action under

the doctrine of forum non conveniens. We have the inherent

power to refuse jurisdiction over a case such as this one where

the interests of justice require that the suit be brought in a

Se

foreign country. GULF Or. CorporaTION v. GILBERT, 330 U.S.

501 (1947); DeMarteos v. Texaco, Inc., 562 F.2d 895 (3d Cir.

1977), cert. denied 435 U.S. 904 (1978); Firzogratp v.

Texaco, Inc., 521 F.2d 448 (2d Cir. 1975) cert. denied, 423

U.S. 1052 (1976); Damnit v. Unitep TECHNOLOGIES

CorPoRATION, 1472 F. Supp. 696 (D. Del. 1979).

The general factors that we must consider in determining

whether to dismiss an action for forum non conveniens were

set forth by the Supreme Court in Gutr Om CorporarION v.

Gupert, 330 U.S. 501 (1947). Mr. Justice Jackson

enumerated in that decision numerous private and public

interests that should be considered under the doctrine. The

factors pertaining to the private interests of the litigants are

the “‘relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the cost

of obtaining attendance of willing witnesses; possibility of

view of premises, if view would be appropriate to the action;

and all other practical problems that make trial of a case

easy, expeditious, and inexpensive’ /d. at 508. The public

factors bearing on the question include the administrative

difficulties flowing from court congestion, an interest in

having local controversies decided at home, the interest in

having the trial of a diversity case in a forum that is at home

with the law that must govern the action, the avoidance of

unnecessary problems and conflicts of law foreign to the

Court, and the unfairness of burdening citizens in an

unrelated forum with jury duty. /d. at 508-509.

The above cited factors have generally been followed by

all courts presented with the issue of whether a case should be

dismissed because a foreign forum is the more convenient

one. See, e.g., DEMATEBOS v. TEXACO, INC., 562 F.2d 895, 899

(3d Cir. 1977); Firzoeratp v. Texaco, Inc., 521 F.2d 448,

450-51 (2d Cir. 1975); J. F. Prircuarp Anp Co. v. Dow

CHEMICAL Or CANADA, 462 F.2d 998, 1000 (8th Cir. 1972);

FITZGERALD Vv. WESTLAND MARINE CORPORATION, 369 F.2d

499, 501-02 (2d Cir. 1966); Dani v. Unirep TecHNoLocres

CORPORATION, 472 F. Supp. 696, 699 (D. Del. 1979); Top

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Form Mits v. SOCIEDAD NATIONALE INDUSTRIA, 428 F. Supp.

1237 1252-53 (S.D.N.Y. 1977); Micnett v. General Motors

Corporation, 439 F. Supp. 24, 26-27 (N.D.Ohio 1977);

Texaco TRINIDAD, INC. v. Astro Exito NAveGcacion §.A.,

437 F. Supp. 331, 332 (S.D.N.Y. 1977); FARMANFARMAIAN V.

Guir Om Corporation, 437 F. Supp. 910 923 (S.D.N.Y.

1977); De.Rio v. BALLENGER CORPORATION, 391 F. Supp.

1002, 1004 (D.S.C. 1975); Dominco v, STATES MARINE LINES,

340 F. Supp. 811, 814-13 (S.D.N.Y. 1972); McCarrny v.

CANADIAN NATIONAL RAILWays, 322 F. Supp. 1197, 1199

(D.MASS. 1971); Otympic CoRPORATION v. SOCIETE

GENERALE, 333 F. Supp. 121, 123-24 (S.D.N.Y. 1971). We

have carefully read each of the above cited decisions and in

light of these decisions and their analysis of the Gulf Oil

factors, it is clear that it would be no less than an abuse of

our discretion if we did not dismiss this action on forum non

conveniens grounds as the Gulf Oil criteria overwhelmingly

point to dismissal.

The first factor that we must consider is whether an

alternative forum is open to the Plaintiff if this motion is

dismissed. Generally, it has been stated by the courts that the

doctrine of forum non conveniens presupposes that an

alternative more appropriate and convenient forum is

available. See, e.g., DeLRio v. BALLENGER CORPORATION, 391

F. Supp. 1002, 1006 (D.S.C. 1978), Texaco TrinmpapD v.

Astro Exito Naveoacion §.A., 439 F. Supp. 331, 332

(S.D.N.Y¥Y. 1977); FARMANFARMAIAN v. GULF OIL

CorPoraTION, 1437 F. Supp. 910, 915 (S.D.N.Y. 1977). This

principle is taken from the Gulf Oil decision in which it is

stated ‘‘[iJn all cases in which the doctrine of forum non

conveniens comes into play, it presupposes at least two

forums in which the defendant is amenable to process... .”’

Guir On at 506-07. In the instant motion the Defendants

have consented to submit to the jurisdiction of the Scottish

courts of law and we have noted our intention of conditioning

the dismissal of this action on their submission to the

jurisdiction of such courts and their waiver of any statute of

Tc

limitation. Plaintiff has an alternative forum available to her

and in fact a case is proceeding in the foreign courts already.

Next, we turn to the important factor of Plaintiff's

choice of forum. As stated in Gutr On, ‘‘unless the balance

is strongly in favor of the defendant, the plaintiff’s choice of

forum should rarely be disturbed’’ /d. at 508. Here the

Plaintiff's first choice was the California state Superior Court.

Plaintiff relies on a number of cases under 28 U.S.C. §1404(a)

in which the Plaintiffs were American citizens. This case,

however, does not involve section 1404(a) as the

determination rests on our inherent power to dismiss and it

also does not involve Americans as real parties in interest.

Rather, the Plaintiff is a representative of foreign citizens and

residents seeking a forum in the United States because of the

more liberal rules concerning products liability law.

Generally, the courts have been less solicitous when the

plaintiff is not an American citizen or resident and,

particularly when the foreign citizens seek to benefit from the

more liberal tort rules provided for the protection of citizens

and residents of the United States. As stated in

FARMANFARMAIAN V. GULF Ort CorPoRATION, 437 F. Supp.

910, 927 (S.D.N.Y. 1977), when a case involves a ‘‘claim of a

foreign plaintiff, (his) choice of forum should be given less

weight than the choice of an American plaintiff... .’’ And in

OLyMPiC CORPORATION Vv. SOCIETE GENERALE, 462 F.2d 376,

378 (2d Cir. 1972), the court stressed that the balance of the

Gulf Oil factors need not be as strong in favor of defendants

when the plaintiff is not an American citizen. See also,

Otympic CORPORATION Vv. SOCIETE GENERALE, 333 F. Supp.

121, 124 (S.D.N.Y. 1971); Micuett v. Genera Morors

CorPoRATION, 439 F. Supp. 24 (N.D. Ohio 1977).

Also, the plaintiff’s choice of forum is generally given

less weight when the forum selected is not the plaintiff’s home

jurisdiction. FirzGeRaLp v. Texaco, Inc., 521 F.2d 448, 451

(2d Cir. 1975); McCartuy v. CANDIAN NATIONAL RAILWays,

322 F.Supp. 1197, 1199 (D.Mass. 1971). In this case the real

parties in interest, the heirs and next of kin of William

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Fehilly, Liam Stuart Fehilly, William James McDougall

Strom, David Vincent Moran, and Peter Scott, are not

American citizens or residents, but rather, citizens and

residents of Scotland. Since the real parties in interest are not

American citizens, and the forums of either California or the

Middle District are not in any way their ‘“‘home’’ forum, this

factor of plaintiff’s choice of forum is entitled to little weight.

The next grouping of factors that we will weigh are the

private interests of the litigants, including relative ease of

access to sources of proof, availability of compulsory process,

cost of obtaining willing witnesses, necessity of a view of the

premises, and the site of the investigation of an accident. A

review of the facts in this case illustrates that all such private

interests point to Scotland as the appropriate forum for this

litigation.

Nearly all events relevant to this action occurred outside

of the Middle District of Pennsylvania. The only connection

with this forum is the fact that the plane was manufactured

here over seven years before the accident. The only contact

with Plaintiff’s choice of forum, California, is that Plaintiff's

attorney and expert reside there. Convenience to counsel or to

expert witnesses, it should be noted, is of small importance in

the balancing of factors. See CAR-FRESHNER CORPORATION V.

Auto Arp MANUFACTURING CORPORATION, 438 F. Supp. 82,

85 (N.D.N.Y. 1977). The connections with Scotland are

overwhelming. The accident occurred in Scotland, the real

parties in interest are citizens of Scotland, the decedents were

all citizens of Scotland, the investigation of the accident

occurred in Scotland, the aircraft was owned, operated, and

maintained by a Scottish company, the pilot was Scottish, the

wreckage remains in the possession of the foreign authorities,

nearly all witnesses needed for the defense of this suit are

located in Scotland, and all witnesses to damages are located

in Scotland.

The ease of access to proof element strongly points to

dismissal of this action. First, all evidence as to damages,

both witnesses and documents, is located in Scotland. Ease of

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access to sources of proof of damages is an important factor

in a wrongful death action. Dominco v. STATES MARINE

Lines, 340 F. Supp. 811, 815 (S.D.N.Y. 1972). Furthermore,

nearly all witnesses necessary for the defense to this suit are

located in the British Isles. For example, witnesses regarding

the maintenance of the aircraft are in Great Britain, witnesses

concerning the training of the pilot are located there, and

witnesses relating to the investigation of the accident are in

the British Isles. None of these witnesses are subject to

compulsory process. Clearly, these witnesses are critical to this

case and since they are located in Scotland, it would be more

convenient for the witnesses and less costly for the litigants to

litigate this matter in Scotland. See, FitzGERALD v. TEXACO,

Inc., 521 F.2d 448, 451 (2d Cir. 1975); Dam v. Unirep

TECHNOLOGIES CORPORATION, 472 F. Supp. 696, (D.Del.

1979); Dominco v. STATES MARINE Linzs, 340 F. Supp. 811,

815 (S.D.N.Y. 1972); Top Form Mmts v. SocieDAD

NATIONALE INDUsTRIA, 428 F. Supp. 1237, 1253 (S.D.N.Y.

1977); J.F. PrircHarD & Co. v. Dow CHEMICAL OF CANADA,

462 F.2d 998, 1002 (8th Cir. 1972); DetRio v. BALLENGER

’ CorporATION, 391 F. Supp. 1002, 1004 (D.S.C. 1975).

Plaintiff relies on the argument that the essential elements

needed for proof of her case are present in this forum since

the plane was designed and manufactured here. We note that

the alleged defective component part, the propeller, was

designed and manufactured outside of this forum. Also the

aircraft was manufactured over seven years prior to the

accident and evidence of any changes in the plane is located in

Scotland. Even Plaintiff admits that all witnesses to damages

reside in Scotland. Furthermore, we cannot accept Plaintiff’s

argument that the evidence going to legitimately raised

defenses is irrelevant to our determination. The interests of

justice require that a trial be fair to all parties, not just the

Plaintiff.

While there are no doubt numerous cases that have

reached this same conclusion based on fundamental fairness,

we will specifically point to just two. The first case we rely on

10c

is MICHELL v. GENERAL Motors Corporation, 439 F. Supp.

24 (N.D. Ohio 1977). In MicHett the court held that mere

design and manufacture of an infant seat in Michigan was not

crucial in the balancing of factors and it dismissed the suit on

forum non conveniens grounds where the injury was to

Canadian plaintiffs, involved a Canadian accident, when

presentation of Canadian witnesses was necessary and could

not be guaranteed in the United States. /d. at 25-26. All of

these factors are present in the instant case and like the

MICHELL court, we find the evidence relating to design in this

action to be overwhelmed by the evidence needed from

Scottish sources.

The second case on point on this question is DAHL v.

UNITED TECHNOLOGIES CORPORATION, 472 F. Supp. 696 (D.

Del. 1979). Dani was brought in Delaware by the personal

representative of four Norwegians who died in a crash of a

Norwegian owned and operated helicopter in Norwegian

territorial waters against the helicopter manufacturer on the

basis of design and manufacture defects. Chief Judge

Latchum discussed the nearly identical factual pattern as we

have here in the following manner:

. . . a substantial amount of the testimonial evidence will

come from Norwegians. Testimony from persons who

knew the decedents will be relevant to the damages issue.

Among the potential liability witnesses are employees of

Helikopter Service AIS, employees from other firms in

Norway that serviced or made installations on the

helicopter, and the Norwegian government officials who

investigated the accident.

Id. at 700. We think the chief judge was absolutely correct,

that we must look to all evidence that is necessary for a fair

trial and in this case the place to find such evidence is

Scotland.

Interrelated with the above discussion is the fact that the

witnesses and other evidentiary materials that are located in

Scotland are beyond the reach of compulsory process of this

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court. The unavailability of compulsory process to compel the

attendance of witnesses necessary for a complete and fair trial

has been recognized as a critical factor in the dismissal of

cases for forum non conveniens. See e.g., FITZGERALD V.

Texaco, INc., 521 F. 2d 448, 451 (2d Cir. 1975): FitzGERALD

vy. WESTLAND MARINE CORPORATION, 369 F.2d 499 (2d Cir.

1966); Dani v. UntTED TECHNOLOGIES CORPORATION, 472 F.

Supp. 696, 700 (D.Del. 1979); MicHELL v. GENERAL Motors

Corporations, 439 F. Supp. 24, 27 (N.D.Ohio 1977); Texaco

TRINIDAD, INc. v. Astro Exrro Naveacacion S.A., 437 F.

Supp. 331 (S.D.N.Y. 1977); DetRio v. BALLENGER

CorPoRATION, 391 F. Supp. 1002, 1004 (D.S.C. 1975);

Dominco v. STATES MARINE Lines, 340 F. Supp. 811, 815

(S.D.N.Y. 1972).

Finally, the absence of necessary third parties weighs

heavily on our determination that the Middle District is not a

suitable forum for this litigation. The Defendants have

pursuasively argued that persons located in Scotland ought to

be made parties to this suit. These include the pilot, the owner

of the plane, and the operating company. Since the

Defendants in this action cannot implead these necessary

parties it would be unfair to make Piper and Hartzell proceed

to trial in this forum. This inability to implead parties located

in foreign counties has likewise been viewed as a critical

factor by the courts. See e.g., GuLF Om CORPORATION Vv.

GiBert, 330 U.S. 501, 511 (1946); Texaco TrinipaD, INC. v.

Astro Exito Navecacion §S.S., 437 F. Supp. 331, 334

(S.D.N.Y. 1977); FirzGeRALD v. Texaco, INC., 521 F.2d 448,

453 (2d Cir. 1975); FiTzGERALD v. WESTLAND MARINE

CORPORATION, 369 F.2d 499, 502 (2d Cir. 1966); Orympic

CORPORATION v. SOCIETE GENERALE, 333 F. Supp. 121, 124

(S.D.N.Y. 1971); Dominco v. STATES MARINE Lines, 340 F.

Supp. 811, 816 (S.D.N.Y. 1972). These potential defendants

could be reached in Scotland and in fact they have been

joined with the instant Defendants in a suit in the British

Isles. Certainly it would be fairer to all parties and less costly

if the entire case was presented to one jury with available

testimony from all relevant witnesses.

12¢

The last factor that we will discuss pertaining to the

private interests is the necessity of a view. More generally, we

believe this factor of Gulf Oil requires us to consider, as

many courts have done, where the accident or event took

place. All facts relevant to the crash are in Scotland, other

than the fact that the manufacture and design of the plane

occurred in the United States seven years before. If weight

should be assigned to this ‘‘view’’ criteria, it certainly favors

the Defendants. Familiarity with the topography around

Tulla, Scotland and inspection of the wreckage of the plane

would be aided by a trial in the British Isles where the

accident occurred.

We now will look to the factors concerning the public

interest which we believe even more strongly point to

dismissal. These factors include court congestion, local

interest in the lawsuit, court familiarity with the law that will

govern the action, the avoidance of unnecessary problems and

conflicts of law foreign to the court and the unfairness of

burdening citizens in an unrelated forum with jury duty. GULF

On Co. v. Gupert, 330 U.S. 501, 507-09 (1946); DemaTEos

v. Texaco, INc., 562 F. 2d 895, 899, n. 2 (3d Cir. 1977);

MICHELL v. GENERAL Motors CorporaTION, 439 F. Supp. 24,

27 (N.D. Ohio 1977).

Uppermost in our weighing of these public interest

factors is that a trial in this forum would be hopelessly

cv.aplex and confusing for a jury as different laws will apply

to different parties. From our review of the applicable choice

of law rules, it appears that Pennsylvania law would apply to

Defendant Piper and that Scottish law would apply to

Defendant Hartzell.

The law is clear that we must apply the choice of law rule

of the state in which we sit, Pennsylvania. KLAxon Co. v.

STENTOR ELECTRIC MANUFACTURING, Co., 313 U.S. 487

(1941). However, when a case is transferred pursuant to 28

U.S.C. §1404(a), we then apply the choice of law rules of the

state from which the case was transferred. VAN DuseEN v.

BARRACK, 376 U.S. 612 (1964). Thus in this case we must

13¢

apply the California choice of law rules to Defendant Piper.

In applying the choice of law rules of California we have

three choices of law, California, Pennsylvania, and Scottish.

With respect to Defendant Hartzell, the applicable law is not

as easily arrived at.

Defendant Hartzell as previously noted, was found to

have insufficient contact with the state of California and

service was quashed. The District Court of California did not

dismiss the action to Defendant Hartzell, but instead properly

transferred the action to this forum. We use ‘“‘properly’’ in

the sense that the court had the power to transfer the action

as to Defendant Hartzell even though service was quashed.

Plaintiff argues that the Van Dusen rule applies to Hartzell as

well as Defendant Piper, however, for the reasons that follow,

we cannot accept this assertion.

The purpose of the Van Dusen rule was to prevent a

party from obtaining a change in the law that would be

applied to a case by seeking a transfer of the action. In

essence, the Van Dusen Court ruled that a transfer under

section 1404 should result in a change of courtrooms only,

not a change in the applicable law. In the instant case the

district court of California held that the law of California

could not apply to Defendant Hartzell because of insufficient

contacts with that state. The question we are presented with is

whether the Plaintiff in this action can capture the law of

California under Van Dusen for transportation to this district

and have it apply to Defendant Hartzell when service against

Defendant Hartzell was improper in California. We hold that

Plaintiff cannot accomplish this. Simply, the Plaintiff cannot

take advantage of the law of California when she could not

properly obtain jurisdiction over Defendant Hartzell there.

Thus, to Hartzell we must apply Pennsylvania choice of law

rules.

First, we will briefly discuss whether California choice of

law rules require that we apply California, Pennsylvania, or

Scottish law to Defendant Piper. California courts follow the

governmental interest approach in resolving conflict of law

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issues. REICH v. PURCELL, 67 Cal. 2d 551, 432 P2d 727 (1967);

Hurtaps v. Superior Court, 11 Cal. 3d 574, 522 P.2d 666

(1974). As Plaintiff states in her brief the ‘governmental

interest approach differs greatly from the significant contacts

approach utilized in Pennsylvania.’’ The governmental interest

approach, in determining the law applicable in a California

forum, applies to situations involving a foreign country and

the choice between the two. HurTapo v. Superior Court, 11

Cal. 3d 574, 522 P.2d 666 (1974). The objective of the

analysis is to determine the law that most appropriately

applies to the issue involved.

The governmental interest approach involves three steps

of analysis. First, the applicable legal issue and law must be

identified. Second, the state interest underlying the law must

be determined. Third, it must then be determined if that

interest would be furthered through application of the states’

law to resolve the specific issues involved in the case. We

intend to make no definitive ruling on what law will apply

under the California governmental interest analysis. Rather,

our discussion will go only so far as to hold that either

Pennsylvania or Scottish law will apply under the California

choice of laws rules. We are relegated to this less that

complete analysis because of our unfamiliarity with Scottish

law which in itself is a factor supportive of dismissal of the

action.

Areas of conflict are present between these three

jurisdictions, i.e. Pennsylvania, California, and Scotland.

First, Scottish law does not allow a personal representative to

bring an action of this kind in Scotland. Under Scottish law,

a personal representative may only bring an action for funeral

expenses. Otherwise, an action of this type may be brought

only by the deceased’s relatives or dependents. We have

previously stated that Gaynell Reyno meets neither of these

requirements. Both Pennsylvania and California appear to

permit such suits. Second, the law of Scotland has not

adopted and does not recognize the theory of strict products

liability. The only basis for liability in Scotland for the

15¢ ’

manufacturer of a defective product is negligence. In contrast,

both Pennsylvania and California recognize strict liability.

What interests of the state these laws promote must be

identified by reference to the interpretations of the laws by

the respective forum courts. California courts have held that

the states interest in creating a cause of action for wrongful

death lies in governing the distribution of proceeds to

beneficiaries and also the interest of deterring conduct within

its borders that takes life. HurTADOo v. Superior Court, 114

Cal. 3d 574, 522 P.2d 666 (1974). For the purposes of this

discussion we will assume that similar interests are promoted

by the Pennsylvania laws. Since the accident did not occur in

either Pennsylvania or California and because none of the

decedents were residents of either of these states, it would

appear that the application of either Pennsylvania or

California law would not further the purpose of the wrongful

death laws. If the purpose of the Scottish law, permitting

recovery for relatives of decendents, is similar, it would seem

that its interests would be furthered by the application of the

law of Scotland.

Particularly, this is true with respect to the rule of law in

Scotland that only relatives or dependents of a deceased may

bring an action of the type of the instant action and not a

personal representative unrelated to the decedent. We,

however, only have affidavits from lawyers from Scotland as

to what the rules of law are in that country and thus we

cannot make, as we said before, any definitive ruling on the

purpose of the Scottish law or thereby the choice of law. We

do agree with the Plaintiff that in line with the California

decisions, that the restrictions on recovery that exist in

Scotland would generally not be applied in a choice of laws

situation as the foreign country would likely have no interest

in restricting any recovery its citizens might receive in foreign

courts from foreign defendants. See, HURTADO v. SUPERIOR

Court, 114 Cal. 3d 574, 522 P.2d 666 (1974). We do not

believe the provisions restricting suits of this nature to

relatives of the decedents fall within this general principle

16c

however. Such a restriction would likely be for the purpose of

insuring that suits are brought by persons interested in the

action so that competence of counsel and administration of a

suit are in the hands of those parties with the ultimate

interest.

We therefore return to our previously enunciated

conclusion that the law of California would not be applied

under the choice of law rules of California as that state has

no interest in having its laws apply. Plaintiff admits this fact.

Furthermore, we believe that Pennsylvania also has no

governmental interest in having its wrongful death laws apply.

For the protection of the real parties in interest in this suit we

believe that the application of Scottish law would further the

purpose of the laws of Scotland with respect to the

restrictions on proper plaintiffs. We believe that ine

California courts would therefore apply the law of Scotland

to this suit. Even if we assume that the Plaintiff is correct and

that Pennsylvania law would be applied by the California

courts to this case, this does not aid the Plaintiffs position.

There exists a conflict among the three forums in the law

of products liability. Scotland only recognizes negligence as a

basis for liability while the two states apply the rule of strict

liability. California has no interests in having its products

liability law apply and thus under the California choice of law

rules it would not apply its own law. See, BERNHARD Vv.

Harran’s Crus, 16 Cal. 3d 313, 546 P.2d 719 (1976); Reicn

v. Purceit, 67 Cal. 2d 551, 432 P.2d 727 (1967). Our choice

is thus between Scottish law and the law of Pennsylvania.

The law of Scotland in not recognizing strict liability is

more limited in terms of liability than Pennsylvania.

Generally, such a restriction provides an indication that the

law seeks to limit the liability of its resident manufacturers to

those cases where negligence can be shown; that only culpable

conduct will result in liability. If the only purpose of the

requirement of proof of negligence is to aid manufacturers in

Scotland, then we may assume that the purpose of the law

will not be furthered by applying it to American

manufacturers.

17c

Pennsylvania’s interests in recognizing strict liability is

foremost in ensuring that citizens will be compensated for

injuries resulting from defective products. There does exist in

the imposition of strict liability on manufacturers an element

of deterence. While the element of compensating injured

residents outweighs the deterence factor, at least some slight

interest on the part of the state of Pennsylvania would be

furthered if the law of Pennsylvania were applied to

Defendant Piper. No Pennsylvania governmental interest,

however, would be promoted by the application of

Pennsylvania law to Defendant Hartzell. Since none of the

decedants nor their relatives were Pennsylvania citizens,

Pennsylvania’s interest in compensating its injured citizens is

of little weight. While the interest of Pennsylvania in applying

its laws is indeed slight, neither of the other forums has any

apparent interest in applying their laws and we therefore

assume that California courts would apply Pennsylvania law

under the choice of law rules of California.

In summary, under the California choice of law rules, it

appears the law of Scotland would be applied to Defendant

Piper with respect to the wrongful death laws. Under this

interpretation, Plaintiff would not be a proper litigant.

Second, the strict liability law of Pennsylvania would likely

apply to Defendant Piper and not the negligence law of

Scotland.

Next, we will briefly review the law that should apply to

Defendant Hartzell under Pennsylvania choice of law rules.

As Plaintiff accurately points out in her brief, the courts of

Pennsylvania follow the significant contacts approach. In

GrirfitH v. Unirep AlrRLINES, 416 Pa. 2d 1, 203 A.2d 796

(1964), the Supreme Court of Pennsylvania adopted the rule

of the Restatement Second of Conflicts of Laws, section 145,

which states that in a tort action, the rights and liabilities of

the parties are determined by the local law which has the most

significant relationship to the occurrence or to the_ parties.

“To determine which law has the most significant

relationship, the court is instructed to consider: the place

18¢

where the injury occurred; the place where the conduct

causing the injury occurred; the domicile, residence, place of

incorporation, or the place of business of the parties; and the

place where the relationship between the parties is centered.’

Lewis v. CHEMETRON CorporRATION, 448 F. Supp. 211, 212

(W.D. Pa. 1978); Zurzora v. GENERAL Morors

CorporaTion, 503 F.2d 403 (3d Cir. 1974); SAMUELSON v.

Susen, 576 F.2d 546 (3d Cir. 1978). Any analysis of the

relevant contacts in the instant suit leads to the inevitable

conclusion that the courts of Pennsylvania would apply the

law of Scotland to this action.

To reiterate some of the crucial aspects of the contacts,

we begin with the fact of the accident in Scotland. The

conduct giving rise to the injury occurred in one of three

places, Ohio, Pennsylvania, or Scotland. The real parties in

interest are domiciled in Scotland, are residents of Scotland,

while the Defendants are located in Ohio and Pennsylvania.

We will not outline the contact in any more detail as we find

the weight of the contacts with Scotland to be overwhelming.

We hold that the law of Scotland would apply in the instant

action to Defendant Hartzell.

We will now once again turn our attention to the public

interest factors of Gulf Oil. As Gulf Oil recognized an

extremely important factor in the balance of interests is the

fact that foreign law will govern all or part of a case. 330

U.S. at 508; see also, FARMANFARMAIAN v. GULF OIL

CorPorRaATION, 437 F. Supp. 910, 924 (S.D.N.Y. 1977);

Dominco v. STATES MARINE Lines, 340 F. Supp. 811, 816

(S.D.N.Y. 1972); MicHELL v. GENERAL Motors CORPORATION,

439 F. Supp. 24, 27 (N.D. Ohio 1977); De_Rio v. BALLENGER

CorPoraATION, 391 F. Supp. 1002, 1004 (D.S.C. 1975);

FITZGERALD v. WESTLAND MARINE CORPORATION, 369 F.2d

499, 502 (2d Cir. 1966); McCartuy v. CANADIAN NATIONAL

RaiLways, 322 F. Supp. 1197 (D. Mass. 1971). We have

determined that Scottish law will govern part of this case. We,

of course, are not familiar with the law of Scotland and

would have to rely on experts from that country. See,

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

Clearly, it would be better for all parties for this case to

proceed in a court in Scotland that is at home with the law of

that country. This case is further complicated by the fact that

different laws would apply to different parties. The result of

this would no doubt cause hopeless confusion and would

likely lead to inconsistent or an inequitable result if a trial

were held here. Dismissal of this action avoids unnecessary

probelems of conflict of laws and the application of foreign

law.

Another factor that Gulf Oil suggests that we consider is

the unfairness of burdening citizens in this forum with jury

duty when this forum has little connection with the

controversy. The only connection with this forum is that the

plane was manufactured in this district years before this

accident. Trial of this case would take weeks and we do find

that it would be an unfair burden to impose this on the

citizens in this community. Also, it would be a huge burden

on this court in terms of both time and the costs involved.

Our court is too congested for us to try an action that belongs

in a foreign forum. See, Gulf Oil at 508509; DeLRio v.

BALLENGER CORPORATION, 391 F. Supp. 1002, 1005 (D.S.C.

1975); MircHett v. GeNngeRAL Motors Corporation, 439 F.

Supp. 24, 28 (N.D. Ohio 1977); Dominoo v. STaTEs MARINE

Lines, 340 F. Supp. 811, 816 (S.D.N.Y. 1972); Dam v.

UntTED TECHNOLOGIES CORPORATION, 472 F. Supp. 696, 701

(D. Del. 1979).

If we attempted to try this action in this forum the

administrative and legal difficulties would be extreme. The

legal problems include determining the serious and complex

conflict of law questions, which this memorandum has only

touched on. Likewise, the large numbers of witnesses that

would be needed from Scotland, the British Isles, Ohio, and

California would likely cause administrative difficulties. The

physical evidence is in Scotland or the British Isles. We also

note that Scotland has a large interest in the outcome of this

litigation as it occurred in its airspace. The case thus may

20

shed light on considerations which affect the safety of its

citizens. See, FirzGeratp v. Texaco, INnc., 521 F.2d 448 (2d

Cir, 1975)). All of these matters lead us to conclude that the

public interest would be better served by a trial in Scotland.

That the law of Scotland is not as helpful to the real

parties in interest is not a weighty consideration. We must

determine which forum is proper because of convenience. and

the interests of justice and the decision cannot be correctly

made if the amount of a plaintiff's likely award is given

undue weight. Generally, the cases

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