Opposition — Piper Aircraft Co. v. Reyno

Supreme Court, U. S. bi,

FILED

)

No. 80-883 (Hartzell) EC 29 1960

No. 80-848 (Piper) MICHAEL RODAK

IN THE a.Gm

Supreme Court of the United States

October Term, 1980

HARTZELL PROPELLER, INC., a Corporation,

and

PipER AIRCRAFT COMPANY, a Corporation,

Petitioners,

vs.

GAYNELL REYNO, as Personal Representative of the Estates

of William Fehilly, Liam Stewart Fehilly, William James

McDougall Storm, David Vincent Moran and Peter

Cunningham Scott,

Respondent.

Opposition to Petitions for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit.

DANIEL C. CATHCART,

1801 Avenue of the Stars, Suite 810,

Los Angeles, Calif. 90067,

(213) 553-6630.

Counsel of Record for Respondent

GAYNELL REYNO, etc.

MAGANA, CATHCART,

McCarRTHY & PiERRY,

MICHAEL D. Moor-

HEAD,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Question Presented.

Was the decision of the United States Court of Appeals

for the Third Circuit prejudicial to Petitioners and disruptive

of federal law, such that this Court must intervene to reverse

that decision?

TABLE OF CONTENTS

Page

Question Presented ..............ccceeeseeneeneeeeeeererenees i

Statement of the Case ..........:ccccceeeeeceeeeeeeeeeenenees 1

APQUMENE ...........00eeeeeceecssecceneanerenensensreneeeeees 4

CONCHUSION ......ccrevcssevccccscececescceceveseeeeeenecesess 10

TABLE OF AUTHORITIES

Cases Page

Data General Corp. v. Skinner, 438 F.Supp. 901 (Del.

SORT aaaieheivecncauhdectadcgbighaccssbnessAgsddtweescscwasss

DeMateos v. Texaco, Inc. , 562 F.2d 895 (3d Cir. 1977),

cert. den. 435 U.S. 904 (1978) ................. 3; 6,

First Nat. City Bank v. Nanz, Inc., 437 F.Supp. 184

SRRNESIEY, PUEDE BoA wcihaseipvaneciccayendecnseevecsccess

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

cert. den. 423 U.S. 1052 (1976) ..........ccceceees 6,

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1974) ... 8,

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

Koster v. Lumbermens Mutual Casualty Co. , 330 U.S.

REED Get nceGiv Us vnsdinncnenmustpadeeriesnenad4eecceees

National Super Spuds, Inc. v. New York Mercantile

Exchange, 425 F.Supp. 665 (D.C.N.Y. 1977) ......

Reyno v. Piper Aircraft Co., 630 F.2d 163 (3d Cir.

BEE han inb tags cedehteantetabadensbadgheesscaeabe 4, 5, 8,

Schertenleib v. Fraum, 589 F.2d 1156 (2d Cir. 1978)

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

Top Form Mills v. Sociedad Nationale Ind., Etc., 428

F.Supp. 1237 (S.D.N.Y. 1977) .......cccceeseeeeeeeees

Van Dusen v. Barrack, 376 U.S. 612 (1964) ....... » F

Statute

United States Code, Title 28, Sec. 1404(a) ...... 2, 5,

10

10

No. 80-883 (Hartzell)

No. 80-848 (Piper)

IN THE

Supreme Court of the United States

October Term, 1980

HARTZELL PROPELLER, INC., a Corporation,

and

PipER AIRCRAFT COMPANY, a Corporation,

Petitioners,

VS.

GAYNELL REYNO, as Personal Representative of the Estates

of William Fehilly, Liam Stewart Fehilly, William James

McDougall Storm, David Vincent Moran and Peter

Cunningham Scott,

Respondent.

Opposition to Petitions for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit.

Statement of the Case.

On July 27, 1976, a Piper Model TA-23 aircraft crashed

near Talla, Scotland. There were no witnesses to the aircrash

itself and all aboard were killed on impact. Although some

inconsistencies remain regarding the cause of the aircrash,

it has become clear that prior to the crash an engine and

resulting propeller malfunction occurred. Plaintiff below,

the personal representative of the heirs of the deceased pas-

sengers on the plane, has therefore asserted various claims

aes

arising out of the crash based on strict products liability and

negligence against the defendants.

The defendants herein are both incorporated and conduct

business almost exclusively within the United States. The

aircraft which crashed was manufactured in the United

States, and the plaintiff was before the honorable courts of

the State of Pennsylvania precisely because of defendants’

prior insistence, in the context of formal motions, that said

state represents the most appropriate forum for the resolution

of this dispute.

The initial action for damages was filed in 1977 in the

Los Angeles, California Superior Court. Subsequently, de-

fendant PIPER AIRCRAFT COMPANY and another de-

fendant, later dismissed, (AVCO LYCOMING ENGINE

GROUP), filed a Petition for Removal to the United States

District Court of the Central District of California. That

petition was granted.

Petitioner HARTZELL thereafter filed a Motion to Dis-

miss for lack of in personam jurisdiction and for a transfer

pursuant to 28 U.S.C. $1404(a) to the Court of Pennsyl-

vania. In September 1977, Petitioner PIPER filed a Motion

to Dismiss for failure to state a claim upon which relief may

be granted and to strike the plaintiff's claim for punitive

damages.

In November, 1977, a motion was filed by PIPER for

transfer under 28 U.S.C. $1404(a) to the United States

District Court for the Eastern District of Pennsylvania. The

request to transfer the case to the Eastern District was sub-

sequently discovered to be inadvertent and when the court

granted the motion to transfer, the Order stated that the

matter was actually to be taken in the Middle District of

Pennsylvania.

ae

The action was then commenced for a third time in Penn-

sylvania. There followed motions by Petitioner HARTZELL

for dismissal on the ground of forum non conveniens, and

by Petitioner PIPER for Judgment on the Pleadings or for

Summary Judgment.

On October 19, 1979, the Court, after lengthy filings

from all parties pursuant to the above motions, ordered the

action dismissed on the ground of forum non conveniens,

conditioned upon defendants’ submission to the jurisdiction

of the courts of Scotland, and their waiver of any statute

of limitations defense in that country.

Subsequently, plaintiff REYNO appealed from the judg-

ment of the District Court to the United States Court of

Appeals for the Third Circuit. On July 24, 1980, that Court

reversed the District Court, and on August 27, 1980, denied

HARTZELL’s Petition for a rehearing en banc. Thereafter,

both HARTZELL and PIPER filed the within Petitions for

Writs of Certiorari.'

' herein, for the convenience of the Court and the parties,

to both petitions with this single opposition.

idles

ARGUMENT.

A thorough reading of both of the petitions submitted

herein indicates that Petitioners have too narrowly construed

the opinion of the U.S. Court of Appeals for the Third

Circuit, so as to lend to it an interpretation which revolves

solely around the issues of the prospective result of the

application of one forum's law over another and the plain-

tiff’s choice of forum.

Respondent respectfully submits that the analysis made

by the Court of Appeals was pervasive and thorough, and

clearly not limited to the two factors which Petitioners have

elected to bring to the attention of this Court.

WAS THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PREJUDICIAL TO PETITIONERS AND DISRUP-

TIVE OF FEDERAL LAW, SUCH THAT THIS

COURT MUST INTERVENE TO REVERSE THAT

DECISION?

Petitioners have demonstrated an overriding concern with

the proposition that the Court of Appeals placed undue em-

phasis on the less favorable aspects of Scottish liability laws

as they would apply in this matter, as opposed to the more

liberal American law of products liability which would be

applied in the U.S. District Court in Pennsylvania. The

Court of Appeals reversed the District Court and held that

a dismissal by the American court would result in a change

of applicable law, the very prospect of such a change and

its consequences thereby precluding dismissal. The court

noted as follows:

Even under the district court’s hale of law analysis

. 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

sil

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

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

cable 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.’

This holding was initially enunciated in DeMateos v.

Texaco, Inc.’ which reflected the landmark decision of Van

Dusen v. Barrack’ by this Court that a transfer under 28

U.S.C. §1404(a) should not work a change in applicable

law as determined by the transferor court.

The DeMateos court held that the ‘‘principle is no less

applicable to a dismissal on forum non conveniens grounds.’’*

Summarily, and without any support whatsoever for its

contention, Petitioner HARTZELL stated in footnote 25 at

page 7 of its Petition that ‘‘[t}he stance taken in DeMateos

is the result of misapplication of the principle of Van Dusen

v. Barrack’’. This conclusion is unwarranted, especially in

view of the fact that Van Dusen took up the matter of

prejudice to a plaintiff, and held that the ruling of the District

Court below

assumed that transfer to a more convenient forum may

be granted on a defendant’s motion even though that

transfer would seriously prejudice the plaintiff's legal

claim.°

The Van Dusen decision also went on to state:

Although in the present case the contentions concern

rules relating to capacity to sue and damages, in other

‘Reyno v. Piper Aircraft Co., 630 F.2d at 163-164 (3d Cir. 1980).

‘$62 F.2d 895, 899 (3d Cir. 1977), cert. den. 435 U.S. 904 (1978).

“376 U.S. 612, 626-43 (1964).

*$62 F.2d at 899.

°376 U.S. at 627.

tines

Although in the present case the contentions concern

rules relating to capacity to sue and damages, in other

cases the transferee forum might have a shorter statute

of limitations or might refuse to adjudicate a claim

which would have been actionable in the transferor

State. In such cases a defendant’s motion to transfer

would be tantamount to a motion to dismiss.’

This Court concluded that the potential prejudice to the

plaintiff therein was so substantial as to require review of

the assumption that a change in state law is permissible

under a 28 U.S.C. §$1404(a) transfer, stating that

There is nothing ... in the language or policy of

$1404(a) to justify its use by defendants to defeat the

advantages accruing to plaintiffs who have chosen a

forum which, although it was inconvenient, was a

proper venue."

Both Petitioners contend that DeMateos, in addition to

being a misapplication of federal law as enunciated by this

Court, also conflicts sorely with the position on this issue

of the Court of Appeals for the Second Circuit, and rely on

Fitzgerald v. Texaco, Inc.” in support thereof. Petitioners’

reliance is misplaced.

Fitzgeraid concerned a maritime collision off the Dover

Straits of England. The only connection with the U.S. in

this matter was that a Delaware corporation (Texaco, Inc.)

owned all of the stock of the foreign company which owned

(but did not manage) the vessel, and was also the thrice

removed owner of the foreign company (TOT) which man-

aged the vessel." Other than such a tenuous link with

America, this case had absolutely no connection with the

United States courts, and the Court therein was justified in

"376 U.S. at 629-30.

"376 U.S. at 633-34.

°§21 F.2d 448 (2d Cir. 1975), cert. den. 423 U.S. 1052 (1976).

"This is obtained from DeMateos v. Texaco, Inc., 562 F.2d

895 (3d Cir. 1977).

ae, ae

holding that England was by far the more convenient forum.

The decisive factors were far more compelling in that case

than in the present one, including the fact that there were

witnesses to the collision itself, and those witnesses resided

in England.

In addition, not one individual resident of the United

States could be shown to have any responsibility for the

events surrounding the collision. In the present case, an-

tithetically, there has been posited by plaintiff strict liability

on the part of two domestic corporations, with no interven-

ing causative organizations or individuals. Therefore, all

the witnesses and documentary evidence relating to the

plaintiff's claims reside in the United States and near the

Pennsylvania forum. These include witnesses and docu-

ments on the design, manufacture, testing, certification and

approval of the aircraft. Petitioners’ therefore, have asserted

a conflict which Respondent submits does not really exist,

since it might be hypothetically assumed that the Second

Circuit, given the extensive contacts between the matter

extant and the United States, would resolve the question in

the same manner as the Third Circuit. Rhetorical though the

question may at present be, the fact of the extensive analysis

by the Third Circuit panel remains to discredit the conflict

between the Circuits as alleged by Petitioners, and Peti-

tioners have completely neglected the extensive balancing

of factors undertaken and completed herein by the Third

Circuit Court. Furthermore, this Court has to date declined

to comment on such an alleged discrepancy between the

Circuits'' without the resulting confusion of federal law

which Petitioners so strenuously fear.

"Certiorari was denied in DeMateos v. Texaco, Inc. at 435 U.S. 904

(1978); Certiorari was ~Riseaasad denied in Fitzgerald v. Texaco, Inc.

at 423 U.S. 1052 (1976).

Petitioners also expressed grave concern over the pur-

portedly undue weight given by the Third Circuit to the

plaintiff's choice of a forum, one of the factors enumerated

in Gulf Oil Corp. v. Gilbert'® to be weighed by courts faced

with forum non conveniens dismissal issues.

It must be reiterated at the outset that this concern on the

part of Petitioners reflects a narrow interpretation of the

actual balancing of many factors carried out by the Court

of Appeals. The Court’s opinion clearly demonstrates an

almost overly thorough analysis of every single element

outlined in the Gilbert case,'’ and Petitioners’ respective

analyses have unnecessarily and unjustifiably narrowed the

parameters of the forum non coveniens doctrine.

It is well established that a plaintiff's choice of forum,

given proper venue, is rarely to be disturbed in the absence

of a compelling showing that a defendant, by being taken

to trial in that forum, will be vexed, harassed, and subject

to such undue burden so as to violate all notions of fairness

in the trial process."

Further, after the balancing process is carried out pursuant

to Gilbert, the trial court must find the result more than

mefely leaning in favor of the defendant; such result must

be strongly in favor thereof. In the absence of such an

outcome, the plaintiff's choice of forum is not to be dis-

turbed,'® and both Petitioners have failed to demonstrate

that the balance is strongly in their favor or that they would

suffer undue hardship and prejudice if put to trial in the

United States. Rather, as Respondent maintained before the

"330 U.S. 501 (1947).

"Reyno v. te e§ Aircraft Co., 630 F.2d at 159-171. It should be

noted that pp. 163-171 primarily concern the Court's choice of law

discussion.

“Koster v. Lumbermens Mutual Casualty Co., 330.U.S. 518 (1947).

°330 U.S. at 508.

Sei

Court of Appeals, Petitioners would merely have this Court

exchange the convenience of Respondent in the prosecution

of this matter for that of their own, all the while ignoring

the major contacts between the accident herein and the site

of the tortious conduct by Petitioners.

Respondent would also respectfully remind this Court

that not only has the U.S. been chosen as a forum by her,

but it was previously strenuously argued by Petitioners in

California as a convenient forum as well.'®

Further, the inescapable fact remains that both Petitioners

reside and do business almost exclusively in the United

States, and cases were cited by the Third Circuit in support

of the proposition that suit brought in a forum which not

only represents the plaintiff's choice, but also the residence

of the defendant, weighs heavily against dismissal."’

In Top Form Mills v. Sociedad Nationale Ind., Etc.,"* the

Court was faced with much the same situation as the one

extant, the party seeking a forum non conveniens dismissal

urging that trial would more suitably be held in Italy. The

court rejected this contention, noting:

The fact that witnesses located in Italy may have to be

called here to testify at some expense and inconveni-

ence similarly does not compel dismissal. Trial in Italy

would require [the responding party] to shoulder the

equally onerous burden of transporting its witnesses

to that country . . . and [re Italian witnesses] if nec-

essary examination in Italy by letters rogatory may be

possible."

"*Reyno v. Piper, 630 F.2d at 156.

"Ibid., at 12, citing Schertenleib v. Fraum, 589 F.2d 1156, 1164

eo ng 1978); Hoffman v. Goberman, 420 F.2d 423, 426-27 (3d Cir.

1970).

"428 F.Supp. 1237 (S.D.N.Y. 1977).

"428 Lage “hg 1253. See also Thomson v. Palmieri, 355 F.2d 64,

66 (2d Cir. 1966).

cia

Finally, with respect to nearly every other Gilbert factor,

it may be seen that the balance was carefully considered by

the Court of Appeals and found to lean heavily in favor of

Respondent herein. Petitioners below failed to meet the

substantial respective burdens required of them to show that

the relevant factors of convenience weigh clearly in their

favor.” For Petitioners now to assert that the Court of Ap-

peals inappropriately limited its consideration to that sin-

gular factor dealing with the weight to be given the plain-

tiff’s choice of a forum, represents an erroneous

circumscription of the Court of Appeals’ decision.

Conclusion.

Because of the assertion of a false conflict by Petitioners,

and because of the narrow construction given by them to

the decision of the Third Circuit, Respondent respectfully

prays that the within Petitions for Writs of Certiorari be

denied.

Respectfully submitted,

MICHAEL D. MOORHEAD,

Counsel of Record for Respondent

GAYNELL REYNO; etc.

MAGANA CATHCART,

McCARTHY & PIERRY,

MICHAEL D. Moor-

HEAD,

Of Counsel.

*Data General Corp. v. Skinner, 438 F.Supp. 901 (Del. 1977);

National Super §; , Inc. v. New York Mercantile Exchange, 425.

F.Supp. (D.C.N.Y. 1977); First Nat. City Bank v. Nanz, Inc., 437

F.Supp. 184 (D.C.N.¥. 1975).