Respondents Brief — Piper Aircraft Co. v. Reyno

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FILED

JUL 18 1981

ALEXAND!R L. STEVAS,

Gites

Nos. 80-883, 80-848

IN THE

Supreme Court of the United States

October Term, 1980.

PipER AIRCRAFT COMPANY,

Petitioner,

vs.

GAYNELL REYNO,

Respondent.

HARTZELL PROPELLER, INC.,

Petitioner,

vs.

GAYNELL REYNO,

Respondent.

On Writs of Certiorari to the United States Court

of Appeals for the Third Circuit.

BRIEF FOR RESPONDENT GAYNELL REYNO.

DANIEL C, CATHCART,

Counsel of Record,

MICHAEL D. MOorRHEAD,

CAROLYN D. RICH,

MAGANA, CATHCART, MCCARTHY & PIERRY,

1801 Avenue of the Stars, Suite 810,

Los Angeles, Calif. 90067,

(213) 553-6630,

Attorneys for Respondent

Gaynell Reyno.

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

rains 2 yu rt, US.

—

Questions Presented.

Whether, in an action in Federal District Court brought

by foreign plaintiffs against American defendants, the plain-

tiffs 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. [No. 80-848

(Piper)}.

Whether a motion to dismiss on the ground of forum non

conveniens should be denied because the law of the alter-

native forum is expected to be less favorable to the foreign

plaintiff than the law that would be applied by the court

deciding the motion. [No. 80-883 (Hartzell)].

Parties Below.

Respondent Gaynell Reyno, appellant in the Third Circuit

Court of Appeals, brought suit as personal representative

of the Estates of William Fehilly, Liam Stewart Fehilly,

William James McDougall Storm, David Vincent Moran

and Peter Cunningham Scott. The petitioners were the de-

fendants and appellees below. The petitioner Hartzell Pro-

peller, Inc., an Ohio corporation, is affiliated only with its

subsidiary Piqua Aircraft Company; Petitioner Piper Aircraft

Company, a Pennsylvania corporation, is a subsidiary of

Bangor Punta Corporation. Although petitions for certiorari

were filed separately by each Petitioner, the cases have been

consolidated for purposes of argument before this Court.

TABLE OF CONTENTS

Page

CRED MUMNNEOE oka TisiceVincccopdexcdrnaescanheatevawe i

I kN rh dh 50 Liss lone bdesenbiedbivatespenescons i

EE CE IOD inc ccccdeocvbidéseWocedenetenddeoccvens 1

Summary Of Argument ...........scoccccssscscocsvccsscesees 7

POE “ss RdiebOckip ec vobigeddasvonsd Vedder vevecersbcccsedese 9

The Writs of Certiorari in This Matter Were Improv-

I NG hss dics cuass cijanad seven abba dicrnrceces 9

Important Considerations Support the Principle That

the Plaintiff's Choice of a Forum Should Rarely

WE ENON sesh knidcheeradilhs echgdbucedsabnbstcccsscsseds 19

Il.

The Requirement That an Alternative Forum Be

Available to Plaintiff Under the Doctrine of Forum

Non Conveniens Includes a Remedy and Law

Which Are Acceptable and Adequate .............. 26

CIO oo ics shcncedabebuminoaceukshdbenbadsdocboctoveene 33

iii

TABLE OF AUTHORITIES

Cases Page

Aetna Ins. Co. v. Illinois C. R. Co, 302 U.S. 652, 82

LBg S06, SS S.C. 269 CISST) iedendiniesscceresoose 9

Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 453

FT PO LDCs AGIBD evscedsscoteeceseovereces 20

Antypas v. Cia Maritima San Basilio, S.A., 541 F.2d

FEE EE As RUPEE it ios Whawnsbivcdbsobadeacborsdoneceesave 19

Atchley v. California, 366 U.S. 207, 6 L.Ed.2d 233,

eA SPE REDON) vd sesi'sbccavensecssenevunis 10, 12, 13

Baldonado v. California, 366 U.S. 417, 6 L.Ed.2d 380,

SE AOD CHPIED Kp dcabicthsetedvevnrdedecsecdoes 10, 13

Bartholomew v. Universe Tankships, Inc., 263 F.2d

437 (2d Cir. 1959), cert. den., 359 U.S. 1000

GRRE: i veakcdbisdndopdusbsvmentier chberedbacsaducas cvteicas 19

Bartolacci v. Corp. of Presiding Bishop, Etc., 476

F.Supp 381 (D.C. Pa: 1979) i... .csscisccccsccsevcesedes 20

Belcher v. Stengel, 429 U.S. 118 (1976) .......... 13, 15

Bentsen v. Blackwell, 347 U.S. 925, 98 L.Ed. 1078,

Fk ARDEP iia tke second dacsabsdeiibtacccsscccccees 9

Benz v. New York State Thruway Authority, 369 U.S.

147, 7 L.Ed.2d 634, 82 S.Ct. 764 (1962) ........... 10

Blue Bell, Inc. v. Jaymar-Ruby, Inc., 311 F.Supp. 942

rte FeO aine ses baldbensodpanavsas doaanscded cnanons 20

Bolanos v. Gulf Oil Corp., 502 F.Supp. 689 (W.D. Pa.

DIN di 3h siks picdvlak ed ocalies cunesdpbinad eoviiee dé ceeetacees 20

Bostic v. United States, 402 U.S. 547, 29 L.Ed.2d 102,

91 S.Ct. 2174, reh. den., 404 U.S. 875, 30 L.Ed.2d

SAO AAs Se CATED hcdhecccabucdcbecddbicosesoceeces 10

Bullock v. South Carolina, 365 U.S. 292, 5 L.Ed.2d

570, 81 S.Ct. 686 (1961) ...........ccccceceeeeeeeee 10, 12

Burbank Intern. Ltd. v. Gulf Con. Intern., Inc., 441

F.Supp. 819 (D.C. Tex. 1977) ........ccceeseeeseeeeees 20

Page

Burrell v. McCray, 426 U.S. 471 (1975) .......... 14, 15

Calavo Growers of California v. Belgium, 632 F.2d 963

COE GO TROP i os voc ste des caceecovovapnecbdocamanaveseaeese 26

Cheeseman v. Carey, 485 F.Supp. 203 (D.C.N.Y.

ROGUE) Sianccs cdsdeticonccddcngvananbaeevadahvendeotphbhes ouvoese 22

Chirinos de Marin (Alvarez) v. Creole Petroleum Corp.,

613 F.2d 1240 (3d Cir. 1980) ..........ccceeeeeeeeeeees 31

Cichos v. Indiana, 385 U.S. 76, 17 L.Ed.2d 175, 87

S.Ct. 271, reh. den., 385 U.S. 1020, 17 L.Ed.2d

S59. ST B.Ce.:; GOD (C1DGO i wecieccckatre cu seecksbcsoecce 10

Collins v. American Automobile Ins. Co. of St. Louis,

Mo., 128 F.Supp. 228 (D.C.N.Y. 1955) ............. 20

Conway v. California Adult Authority, 396 U.S. 107,

24 L.Ed.2d 295, 90 S.Ct. 312, reh. den., 396 U.S.

1030, 24 L.Ed.2d 527, 90 S.Ct. 544 (1969) ........ 10

Dahl v. United Technologies Corp., 472 F.Supp. 696

CENA RO OTD) oi. cdi scndabdeoeumnccdeeleeniaite eos 31, 32

Daquila v. Schlosberg, 253 F.2d 888 (D.C. Cir.

LG ic cnisiceses ice vcdhddducebecahasescscontatbensecees ooh} 20

Davis v. Currie, 266 U.S. 182, 69 L.Ed. 234, 45 S.Ct.

Be UD Daiis as vicins sae canganabilees sox bedacecosbevedsuuees. 9

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

cert. den., 435 U.S. 904 (1975) ...... 5, 6, 17, 26, 31

Dresner v. Tallahassee, 378 U.S. 539, 12 L.Ed.2d 1018,

B4S.Ct. 1895 (19G4) on. .ccccccrecccvercccsccrvevcedeceves 10

Duncan v. Tennessee, 405 U.S. 127, 31 L.Ed.2d 86,

OZ S04, FOS:CIGTZ): Sos sesecthinevhs dbacksetedscnctivtes 10

Erie R. Co. v. Kirkendall, 266 U.S. 185, 69 L.Ed. 236,

4S SEG FS UGTA) icsibienstesatsiae cciPbeketertnvossse cess 9

Fisher v. Agios Nicolaos V, 628 F.2d 308 (Sth Cir.

BDI scss eithndanchnchteretecetcadensorguaeincchparcad 19, 20

Page

Fosen v. UTC, 484 F.Supp. 490 (D.C.N.Y.

SPUD ae va son cchantersdnasesssr fsa oencabeaesovdeive 26, 27, 32

Furness, Withy & Co. v. Yang-Tsze Ins. Asso., 242

U.S. 430, 61 L.Ed. 409, 37 S.Ct. 141 (1917) ...... 9

Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178,

BF ts LOS CADRE) vncnencncsccbcbdgeserepttesccesocveye 10

Goins v. United States, 306 U.S. 622, 83 L.Ed. 1027,

SR BAy TAP AIS OO) vosadiccsdecesbiborcscchsccecesvsbsese 9

Gotthilf v. Sills, 375 U.S. 79, 11 L.Ed.2d 159, 84 S.Ct.

SEPAGUS) sivccocchdcdvecavbabanbouccivebsabblboascaeshuawes 10

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

capaouehes 6, 7, 8, 17, 19, 20, 21, 26, 27, 30, 31, 32, 33

Hodges v. United States, 368 U.S. 139, 7 L.Ed.2d 184,

Re EAs MOT ME UTED Cisse cecdhcardeakercsddusbdessccsbeses 10

Houston Oil Co. v. Goodrich, 245 U.S. 440, 62 L.Ed.

38S, 38 S.Ct. 140 (1918) ...........ssecerecccecccceneces 9

Hurtado v. Superior Court, 11 Cal.3d 574, 522 P.2d

GE CATIA nciksoes icchinesicdincudcdenses dhpslennss siipovects 25

Insurance Co. of North America v. Ozean/Stinnes-

Linien, 367 F.2d 224 (Sth Cir. 1966) ...............6. 3

Iowa Beef Packers, Inc. v. Thompson, 405 U.S. 228,

31 L.Ed.2d 165, 92 S.Ct. 859 (1972) ............008 10

Johnson v. Massachusetts, 390 U.S. 511, 20 L.Ed.2d

69, 88 S.Ct. 1155 (1968) .............cscscecesecescscers 10

Jones v. Hildebrant, 432 U.S. 183, 53 L.Ed.2d 209,

PED OARS BROS CAOTED oSciniececsvevtaveasadansssscive snes 10

Jones v. State Board of Education, 397 U.S. 31, 25

L.Ed.2d 27, 90 S.Ct. 779, reh. den., 397 U.S. 1018,

25 L.Ed.2d 432, 90 S.Ct. 1230 (1970) ............08. 10

Keller v. Adams-Campbell Co. , 264 U.S. 314, 68 L.Ed.

705, 44 S.Ct. 356 (1924) ............cccccccecscsseeeseee 9

Page

Kimbrough v. United States, 364 U.S. 661, 5 L.Ed.2d

362, 81 S.Ct. 390, reh. den., 365 U.S. 825, 5

L.Ed.2d 703, 81 S.Ct. 688 (1961) .........:.ceeceeee:

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 67 L.Ed. 712, 43 S.Ct. 422

RAMI cide desacicdenurecdksibabethasbsntveseheetbebives acs 9,

MEPEP Gheshacouisceccdatedsbacsyveechocecthwstheabserecescedes

Lieb v. American Pac. Intern., Inc., 489 F.Supp. 690

SEE he COUN dnkktWanaterersessbisvecpestersndbetivaress

Livesay Ind. v. Livesay Window Co., 202 F.2d 378

(5th Cir. 1953), cert. den., 346 U.S. 855 (1953) ...

Loftus v. Illinois, 337 U.S. 935, 93 L.Ed. 1741, 69

BR ADEE LIGA ist ivessveresesasnauctensdeteccecscrees

Massachusetts v. Painten, 389 U.S. 560, 19 L.Ed.2d

770, 88 S.Ct. 660 (1968) .......... cece cece cece cece eee

Mattes v. National Hellenic American Line, S.A., 427

PD, OLS (5.DIN 8 AGT T) ccccscctecedosccssoccbvese

McCarthy v. Bruner, 323 U.S. 673, 89 L.Ed. 547, 65

GR, LO CROWS) hiiinecssscovsecccevenseorsboscosscorsers

McClanahan v. Morauer & Hartzell, Inc., 404 U.S. 16,

30 L.Ed.2d 136, 92 S.Ct. 170 (1971) ........... 10,

McCullough v. Kammerer Corp., 323 U.S. 327, 89

L.Ed: 273, 65:S.Ct. 297 (1945S) .......c.ccceccececeees

McGann v. United States, 362 U.S. 214, 4 L.Ed.2d

666, 80 S.Ct. 629 (1960) ..........cccecececeeeceeeeeeees

Medich v. American Oil Company, 177 F.Supp. 682

GF Key BOs SOON tes tlie cae iakbneccababeiavedsonegesesces

Mellon v. McKinley, 275 U.S. 492, 72 L.Ed. 390, 48

EE SO NGLE) ice rdectsctacadncesanssetlntalercebescesss

Melville v. American Home Assur. Co., 443 F.Supp.

LOGS CEG PA TOT E) i ctdscticsscccesnsdeagessscseccetes

vii

Page

Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d 56,

86 S.Ct. 958, reh. den., 384 U.S. 934, 16 L.Ed.2d

535, 86 S.Ct. 1440 (1966) .........ccccsescececeserereee 10

Missouri-Kansas-Texas R. Co., 275 U.S. 494, 72 L.Ed.

SED Ae OTRO GED f chdbberdscdedvinvoressccvsassces 9

Missouri P. R. Co. v. Hanna, 266 U.S. 184, 69 L.Ed.

Boy tO take IO CANAAN) Sevediccievernovtdocedecescrtcese 9

Mitchell v. Oregon Frozen Foods Co., 361 U.S. 231,

4 L.Ed.2d 267, 80 S.Ct. 365 (1960) ............02008: 9

Mizokami Bros. of Arizona v. Mowbay Chemical

Corp., 483 F.Supp. 201 (D.C. Mo. 1980) ........... 20

Molloy v. Bemis Bro. Bag Company, 130 F.Supp. 265

POLE t ROOD CEL Urlihn sass hlneduowesetbchoncvecvosbadds 20

Monks v. New Jersey, 398 U.S. 71, 26 L.Ed.2d 54,

DOS. Cr USGS CITI iienhc sc ckbdeccvdecscbsgptedncees 10, 13

Moon v. Maryland, 398 U.S. 319, 26 L.Ed.2d 262, 90

AR TPO CEO EAs s cbdcovebiobdesecsesctssunsessa pes 10

Murel v. Baltimore City Criminal Court, 407 U.S. 355,

32 L.Ed.2d 791, 92 S.Ct. 2091 (1972) .......... 10, 13

Needleman v. United States, 362 U.S. 600, 4 L.Ed.2d

980, 80 S.Ct. 960, reh. den., 363 U.S. 858, 4

L.Ed.2d 1739, 80 S.Ct. 1606 (1960) ............. 9, 10

Newsom v. Smyth, 365 U.S. 604, 5 L.Ed.2d 803, 81

BATTS CIGOE) \ saisveciilsccccescdstsssevesdsccsdivcsrpes 10

Odom v. United States, 400 U.S. 23, 27 L.Ed.2d 122,

91 S.Ct. 112, reh. den., 400 U.S. 984, 27 L.Ed.2d

306, 91 S.Ct. 363 (1970) ........cccececececeereeeeeeeees 10

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

CO EI BOTED vin cpcrice dosing sods sovnuns sacnwstesscquehiives 20

Pain v. United Technologies Corp. , 637 F.2d 775 (D.C.

Che LORD) iss viencacccarscchodancesebspacetenareisccds oahbeyte 18

Page

Palmieri v. Florida, 393 U.S. 218, 21 L.Ed.2d 389, 89

S.Ct. 440, reh. den., 393 U.S. 1045, 21 L.Ed.2d

596, 89 S.Ct. G11 (1968) ..... cece cece eeeeceeeeeeees 10

Paper Operations Consultants International, Ltd. v. S.S.

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

SFE haan cides NambAApaoadn sas needa bocdhtiMbardhvecbscipe 20, 21

Parker v. County of Los Angeles, 338 U.S. 327, 94

L.Ed. 144, 70 S.Ct. 161 (1949) oo... .ccccecececeeeeees 9

Phillips v. ‘New York, 362 U.S. 456, 4 L.Ed.2d 874,

BO S.Ch.. B74 (19GO) on .rcccccccccccccverecccesseercces 9, 13

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

445 (D.C. Del. 1978) ................ 27, 28, 29, 30, 31

Piccirillo v. New York, 400 U.S. 548, 27 L.Ed.2d 596,

TNs Da MOEA) cachicddpdiceahebigahegsacceosceddccas 10

Preiser v. Newkirk, 422 U.S. 395 (1975) .............. 15

Ramsey v. New York, 440 U.S. 444, 59 L.Ed.2d 440,

Fr. c, LOND CLIP) es hinseduncdadecdacdsiuidsdasceadenss 10

Reavis v. Gulf Oil Corp., 85 F.R.D. 666 (D. Del.

BUMNED Navekdacodwondes ccambees on Mddasodvedacde 21, 22, 23, 27

Rice y. Sioux City Cemetery, 349 U.S. 70, 99 L.Ed.

897, 75 S.Ct. G14 (1955) «0... ccccecccneeeeeeeveees ll, 14

Roe v. Wade, 410 U.S. 113 (1973) .........ccccccecenees 15

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 1

L.Ed.2d 493, 77 S.Ct. 443, reh. den., 353 U.S. 943,

1 L.Ed.2d 764, 77 S.Ct. 808 (1957) ...........cceeee 9

Rogge v. Menard County Mutual Fire Ins. Co., 184

F.Supp. 289 (D.C. Ul. 1960) .........cccceeceseeeeeeees 20

Ryan v. Clark Equipment Co., 268 Cal.App,.2d 679,

74 Cal.Rptr. 329 (1969) ..........ccccececceeeeceeeeeenes 25

Sanchez v. Gautiery Borras, 283 U.S. 798, 75 L.Ed.

1421, 51 S.Ct. 490 (1931) oo... cec eee ee eeeeeees 9

Page

Sarno v. Illinois Crime Investigating Com., 406 U.S.

482, 32 L.Ed.2d 243, 92 S.Ct. 1677 (1972) ........ 10

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

eaRUDAAAah ie dcbaneWipudiansevaagtehs ch Ribheah bonewneseades veo 27

Schilling-Hillier S.A.I.E.C. v. Virginia-Car. Chem.

Corp., 19 F.R.D. 271 (S.D.N.Y. 1956) ............4. 21

SEC v. Medical Committee for Human Rights, 404 U.S.

CRS TED ob Chui denaavandgnndcasdindich sesconadeedasiescte<es 15

Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir.

RED Raid duvhsunebiey sehdavasaaheWbadaccddeocedccneradnescve 20

Smith v. Butler, 366 U.S. 161, 6 L.Ed.2d 184, 81 S.Ct.

937, reh. den., 366 U.S. 941, 6 L.Ed.2d 852, 81

ee MONE COMOED sadeccdccccecsadedebnedeccsives 10, 13, 14

Smith v. Mississippi, 373 U.S. 238, 10 L.Ed.2d 321,

GS, S.CR. LAGS CUDGS) acsciscccsescasvccseeccccesgnceseess 10

Snowden v. Red River & B. D. G. Levee & Drainage

Dist., 284 U.S. 592, 76 L.Ed. 510, 52 S.Ct. 198

CRIN OR Caine anc tcdb bad hechand conden sak Ueuneaddenaspenssnens 9

Southern Power Co. v. North Carolina Public Service

Co., 263 U.S. 508, 68 L.Ed. 413, 44 S.Ct. 164

RDP RNAs ddeks eco Nodancaueoe bene aaabapeatigs ec 9, 17

Steffel v. Thompson, 415 U.S. 452 (1974) ............. 15

Stevenson v. U.S., 197 F.Supp. 355 (D.C. Tenn.

CSE esas cov weucuoeesitits vacatcadcadaeiacess seule 20

Sutter v. Midland Valley R. Co., 280 U.S. 521, 74

L.Ed. 590, 50 S.Ct. 65 (1929) ........ccceseeseeeeeeees 9

Taggart v. Weinacker’s, Inc., 397 U.S. 223, 25 L:Ed.2d

240, 90 S.Ct. 876 (1970) .......ccccccccceeesesseeeeeeees 10

Tax Com. of Ohio v. Wilbur, 304 U.S. 544, 82 L.Ed.

1518, 58 S.Ct. 1036, reh. den., 305 U.S. 668, 83

L.Ed. 433, 59 S Ct. 55 (1938) ..........c cece cece ce eee 9

Page

Texas & N. O. R. Co. v. Neill, 302 U.S. 645, 82 L.Ed.

501, 58 S.Ct. 118, reh. den., 302 U.S. 778, 82 L.Ed.

GOR SBS Ce Ba CASS Ey scacsisek sc cccescccccécsssoscees 9

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

180, 3 L.Ed.2d 723, 79 S.Ct. 710, reh. den., 359

U.S. 999, 3 L.Ed.2d 986, 79 S.Ct. 1115 (1959)

Dy UGE Nelia Teh iedadeki’s itetss seca deveatahebscepanddes 16

Tyrrell v. District of Columbia, 243 U.S. 1, 61 L.Ed.

Sere: ed ale, SON KAGE EDickacdvapedcbeadecedesacvense 9, 16

United States v. McFarland, 275 U.S. 485 (1927) .... 16

United States v. Munsingwear, Inc., 340 U.S. 36

CRODUR Yecddssstiudabssacctadvineddbindetascedhecccgboeresccons 15

United States v. Rimer, 220 U.S. 547, 55 L.Ed. 578,

SR BGs POG CURRED lacks cssendseoccsccssdensansoctens 9, 16

Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805,

11 L.Ed.2d 945 (1964) .......ccccececeeecseenrenes 6, 17

Vandusen v. J.C. Penney Co., 207 F.Supp. 529 (D.C.

PAEMLSUOME, cin dcksdvccaagudccoadeves Sesvensnabsucesorcacees 20

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

(2d Cir. 1956), cert. den., 352 U.S. 871, 77 S.Ct.

96, 1 L.Ed.2d 76 (1956) ........ccceccecneeseeseeeeeeees 30

Williams v. Zuckert, 371 U.S. 531, 9 L.Ed.2d 486, 83

S.Ct. 403, vac., 372 U.S. 765, 10 L.Ed.2d 136, 83

ER OUR: CPOE nc wean ceccaddedes devbcacbidelideccccccases 10

Wisconsin Electric Co. v. Dumore Co., 282 U.S. 813

Ce Ne ae re ce sdabaueatbbotecedcect 17

Wolf v. Weinstein, 372 U.S. 633, 10 L.Ed.2d 33, 83

S.Ct. 969, reh. den., 373 U.S. 928, 10 L.Ed.2d 427,

DP BAe RO COMER dc sadabvdandoudegatnondiehsevocesesive 10

Zelman v. Bethlehem Steel Company, 186 F.Supp. 246

(D.C. Pa. 1960) ......ssccceessreeessseeeereeesereeeeteeees 20

Page

Statute

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

Lind tute keheteeds RiGmeAd ebeeenEbbabcusdnenaeee 2, 3, 6, 12, 17

Textbooks

Annot. ‘*Whe. Will Supreme Court Dismiss Writ of

Certiorari as Improvidently Granted’’, Sheldon R.

Shapiro, J.D., 30 L. Ed. 2d 829 .............ccceeceees i9

Miller, C.O., ‘‘Aviation Accident Investigation: Func-

tional and Legal Perspectives’’, Journal of Air Law

and Commerce, Vol. 46, 1981, p. 283 ............64. 23

Scotland Law Digest: Death; Martindale-Hubbell Law

Directory, Vol. VIII, 1981, p. 4101 ........cccceceees 24

Supreme Court Practice, Fifth Ed., 1978, Sec. 5.15, p.

DE pieccthevdtkubescsncuaubeasbadpancetoamibecsdmedesipodsse 12

Nos. 80-883, 80-848

IN THE

Supreme Court of the United States

October Term, 1980.

PIPER AIRCRAFT COMPANY,

Petitioner,

vs.

GAYNELL REYNO,

Respondent.

HARTZELL PROPELLER, INC.,

Petitioner,

vs.

GAYNELL REYNO,

Respondent.

BRIEF FOR RESPONDENT GAYNELL REYNO.

Statement of the Case.

On July 27, 1976, a small, commercial chartered aircraft

went down in the Scottish highlands near Moffat, on a flight

from Blackpool to Perth. (JA 18, 66, 95-96).' All six per-

sons aboard the aircraft were killed. (JA 66).

The plane, a Piper Aztec, was owned by a Scottish air

taxi service, and the five passengers and single pilot were

Scottish. (JA 118). There were no witnesses to the crash,

‘Citations denoted by JA are to the Consolidated Joint Appendix.

ae, Si

but there were indications that the left engine malfunctioned

(JA 25; JA 118), although the case has not proceeded far

enough on a factual basis to determine the exact nature of

the cause of the crash. (JA 48).

Respondent Gaynell Reyno, acting as personal repre-

sentative of the estates of the five passenger decedents, first

instituted this action in the Superior Court of the State of

California for the County of Los Angeles in July, 1977.

(JA 68; JA 118-119). The bases for respondent’s complaint

for wrongful death were strict liability and negligence. (JA

119). Plaintiff contended that the malfunction of the left

engine was the result of a design or manufacturing defect,

and that there were several dangerous and defective con-

ditions in the aircraft itself, including inadequacies asso-

ciated with the left propeller mechanism and with the in-

strumentation. (JA 119).

On motion by Piper and another defendant, (Avco), later

dismissed from the case by stipulation, the matter was re-

moved from the California state court to the Federal District

Court in California. Subsequently, Hartzell moved to dis-

miss for lack of personal jurisdiction or, in the alternative,

to transfer the case to the Middle District of Pennsylvania,

pursuant to 28 U.S.C. §1404(a). Piper then joined in this

motion and moved to dismiss, alternatively, for failure to

state a cause of action, and to strike the claim for punitive

damages. (JA 119). In the course of these motions, both

defendants strenuously, ardently and successfully argued

that the traditional determinative factors embodied in the

Statute and in case law mandated that the action be trans-

ferred to the District Court in Pennsylvania. (JA 44-47).

The District Court agreed that it did not have personal ju-

risdiction over Hartzell, granted the motion to quash service

of process, and transferred the entire matter to the Middle

pare,

District of Pennsylvania under 28 U.S.C. §1404(a). (JA

119-120).

Soon after the transfer, both defendants brought motions

to dismiss the case on the ground of forum non conveniens,

contending that the matter should be heard in Scotland.

(JA67). Again, the defendants offered strenuous argument

in favor of another forum, this time Scotland rather than

Pennsylvania. (JA 29-42).

On October 19, 1979, the District Court, R. Dixon Her-

man, United States District Judge, ordered that the action

“*be dismissed on the conditions that Defendants waive any

defense that they might have relating to any statute of lim-

itations that did not exist prior to the initiation of this suit

and that they abide by their stipulation to submit to the

jurisdiction of the Scottish courts.’’ (JA 88).

The Court of Appeals reversed, concluding that the de-

fendants did not meet the burden required of them for a

forum non conveniens dismissal. (JA 156). The Court’s first

point was that the defendants had attempted to ‘‘trifle’’ with

the judicial process by initially arguing that Pennsylvania

was the proper forum and then averring the same with re-

spect to Scotland. In this regard, the Court relied on a

decision of the Court of Appeals for the Fifth Circuit (JA

121),? and added that a history of a successful §1404(a)

transfer prior to a forum non conveniens motion ought to

add to the burden already imposed on the moving party.

(JA 124).

The Court then went on to discuss comparative burdens,

trial court discretion and the standard of review to which

it was bound.

"Insurance Co. of North America v. Ozean/Stinnes-Linien, 367 F.2d

224, 227 (Sth Cir. 1966) ( ing Livesay Ind. v. Livesay Window Co..,

202 F.2d 378, 382 (Sth Cir. 1953), cert. denied, 346 U.S. 855 (1953)).

—

Addressing first the plaintiff's choice of a forum, the

Court cited the well known rule that the plaintiff's choice

of a forum should rarely be disturbed, and that the nation-

ality of the plaintiff, according to opinions of the Third

. Circuit and of the Supreme Court, carries little weight to-

ward diminishing the significance of that choice (JA 129),

or affecting the burden of the defendant. (JA 130). The

Court also pointed out the significance in this instance of

the plaintiff already having ceded the ‘‘home court advan-

tage’’, stating that ‘‘[i]t would be the rare situation in which

a defendant could complain of being vexed or harassed by

defending a lawsuit on his home ground’’. (JA 130).

The Court then made clear the applicable standard of

review. It stated that abuse of discretion was the sole stand-

ard, but that such an abuse of discretion was readily dem-

onstrated if the trial court did not hold a defendant to its

proper burden, or had clearly erred in weighing the factors

to be considered. It held that the ‘‘district court’s wide

discretion may not serve the defendants as a burden-shifting

device on appeal from an order in their favor.’’ (JA 131)

The Court then went on to weigh individually the factors

involved in the determination of a motion on forum non

conveniens grounds.

With respect to the convenience of witnesses, the Court

held that the defendants had not met with requisite speci-

ficity the requirement that they set forth the key witnesses

to be called and the essence of their testimony. (JA 133).

The Court then concluded that the district court was, at the

very least, without sufficient information to adequately

weigh this factor, and that its conclusion that this particular

factor favored the defendants was without foundation. (JA

134).

With respect to the availability of compulsory process

and impleader, the Court noted that defendants contended

that their inability to join the Scottish parties as defendants

would be unfair and unduly burdensome. However, the

Court, after reasoning the question, stated that ‘‘[i]f 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 re-

side’’. (JA 135-136). The Court then concluded that al-

though the defendants’ inability to join other potentially

liable parties might make litigation in Pennsylvania more

burdensome, the defendants had failed to demonstrate the

inherent unfairness of such a circumstance. The Court noted

that although this factor did indeed weigh in favor of the

defendants, it was not greatly determinative. (JA 137).

The Court then dealt swiftly with the factor concerning

viewing the premises, stating that any benefit in such a

viewing was doubtful. (JA 137).

Going on to the public interest factors, the Court em-

barked on a lengthy and comprehensive discussion con-

cerning choice of law. (JA 140-156). Prior to such discus-

sion, however, the Court considered briefly whether foreign

law should be applied. The Court stated that Scotland would

in all probability apply its own law to all claims, rather than

struggle with a mixture of American and Scottish law. (JA

139). The Court then went on to quickly reiterate the as yet

unassailed holding of DeMateos v. Texaco, Inc., 562 F.2d

895, 899 (3d Cir. 1977), cert. denied, 435 U.S. 904 (1978),

my Wi

that a dismissal for forum non conveniens should not result

in a change in the applicable law. (JA 140).’

The Court’s discussion with respect to choice of appli-

cable law was thorough. However, because the issues dis-

cerned and conclusions reached are not presently before this

Court, an analysis thereof need not be set forth here.

The Court then went on to instruct that the district court

must proceed to determine the capacity to sue of plaintiff

Reyno, allowing that an attack on her capacity at this stage

of the proceedings may be too late. (JA 150-151).

Finally, the Court stated that since applicable choice of

law rules lead to the recognition that Pennsylvania and Ohio

are the jurisdictions with the greatest policy interest in this

dispute, other public interest factors under Gilbert favor

trial in the United States. (JA 156).

"The in DeMateos in this regard is as follows: ‘‘However,

iuicedaatien he teanciawy of acvoate tenaiet possess 40 28 USC.

$1404(a), the Court has that such a transfer should not,

despite its convenience, ina in the applicable law. Van

Dusen v. Barrack, 376 U.S. 612, 626-43, 84 S.Ct. 805, 11 L.Ed.2d

945 (1964). That principle is no less applicable to a dismissal on forum

This bit of dictum in the Court of Appeals opinion in Reyno was

seized upon by Petitioners and made the basis for their argument before

a, Nib

In conclusion, the Court held that defendants hau not met

the burden required of them for a forum non conveniens

dismissal; therefore, the judgment of the district court must

be reversed and the cause remanded.

The Petitions for Certiorari followed.

Summary of Argument.

Certiorari in this matter was improvidently granted. Be-

cause the essence of the Court of Appeals’ decision rests

on choice of law principles, the question now before this

Court is entirely academic. Since this Court has elected not

to hear argument on the propriety of the Third Circuit’s

choice of law analysis, the decision of the Supreme Court

should have no effect on the actual rights and liabilities of

these particular parties, as determined by the Court of

Appeals.

Il.

The weight to be accorded the plaintiff's choice of a

forum, as instructed by Gilbert and its progeny, is consid-

erable. The reasons are many, but beyond all of the irre-

futable and uncontradicted arguments in favor of bestowing

upon the injured plaintiff the right to seek redress wherever

he sees fit, there is a further, highly just and desirable benefit

to be derived from according the plaintiff his choice of a

forum: The defendant accused of wrongdoing will always

be held to the highest available standard of accountability

for his actions and resulting injuries and damages. In this

way are persons and entities such as the defendant manu-

facturers now before this Court made aware of the extent

to which they may be answerable for a panoply of wrongful

acts — in this instance the dissemination of defective prod-

ucts into the worldwide mainstream of commerce and

industry.

The public policy to be advanced by this vehicle is ob-

vious. As between a jurisdiction holding manufacturers only

to the standard of due care (Scotland), and a jurisdiction

holding the same manufacturers to the standard of strict

liability (United States), the latter can clearly be seen to

better advance a policy of deterrence of wrongful conduct,

while at the same time provide the injured plaintiff with the

best opportunity for compensatory redress.

Thus, to look at the law of a particular forum only in

terms of its ‘‘favorability’’ to the plaintiff is to eclipse the

other, highly important half of the same concept, the ability

of that forum to insure that the actions of prospective de-

fendants are within the limits of acceptable conduct within

the jurisdiction.

Ill.

One of the threshold instructions in Gulf Oil Corp. v.

Gilbert,’ acknowledged as the premier forum non conven-

iens decision, mandated the existence of an alternative

forum before dismissal on that ground could be considered.

Inherent in that mandate is the concept that plaintiff must

have an adequate remedy and law available to him before

another forum can be considered an acceptable alternative.

“330 U.S. 501 (1947).

or ae

ARGUMENT.

The Writs of Certiorari in This Matter Were Im-

providently Granted.

In many cases before this Court in the past, the decision

has been reached that a writ of certiorari should never have

been granted, and was so done improvidently.°

‘United States v. Rimer (1911) 220 U.S. 547, 55 L.Ed. 578, 31 S.Ct.

596; Furness, Withy & Co. v. Yang-Tsze Ins. Asso. (1917) 242 U.S.

430, 61 L.Ed. 409, 37 S.Ct. 141; Tyrrell v. District of Columbia (1917)

243 U.S. 1, 61 L.Ed. 557, 37 S.Ct. 361; Houston Oil Co. v. Goodrich

(1918) 245 U.S. 440, 62 L.Ed. 385, 38 S.Ct. 140; Layne & Bowler

Corp. v. Western Well Works, Inc. (1923) 261 U.S. 387, 67 L.Ed. 712,

43 S.Ct. 422; Southern Power Co. v. North Carolina Public Service

Co. (1924) 263 U.S. 508, 68 L.Ed. 413, 44 }

Campbell Co. (1924) 264 U.S. 314, 68 L.Ed. 705, ; S.Ct. 356; Davis

P. R. Co. v. Hanna (1924) 266 U.S. | Ed.

Erie R. Co. v. Kirkendall (1924) 266 U.S. 185, 69 L.Ed. Ce

33; Mellon v. McKinley (1927) 275 U.S. 492, 72 L.Ed. 390, 48 S.Ct

“

.Ed. 58 S.Ct. .

. 544, 82 L.Ed. 1518, 58 S.Ct. 1036, reh. den. 305

3, 59 S.Ct. 55; Goins v. United States (1939)

306 U.S. 622, 83 L.Ed. 1027, 59S.

9 273, 65 S.Ct. 297; McCarthy

Ed. 547, 65 S.Ct. 126;

=~arc

58e

Yow

abet

“asd

i> =]

rae?

E S. 673, 89 l

v. Illinois (1949) 337 U.S. 935, 93 L.Ed. 1741, 69 S.Ct. 1511; Parker

v. County of Los Angeles (1949); 338 U.S. 3 144, 70 S.Ct.

161; Bentsen v. Blackwell (1954) 347 U.S. 925, 98 L.Ed. 1078, 74

S.Ct. 528; Rogers v. Missouri Pacific R. Co. (1957) 352 U.S. 500,

524, 559, 1 L.Ed.2d 493, 515, 77 S.Ct. 443, 459, 478, reh. den. 353

U.S. 943, 1 L.Ed.2d 764, 77 S.Ct. 808; The Monrosa v. Carbon Black

Export, Inc. (1959) 359 U.S. 180, 3 L.Ed.2d 723, 79 S.Ct. 710, reh.

den. 359 U.S. 999, 3 L.Ed.2d 986, 79 S.Ct. 1115; Mitchell v. Oregon

Frozen Foods Co. (1960) 361 U.S. 231, 4 L.Ed.2d 267, 80 S.Ct. 365;

McGann v. United States (1960) 362 U.S. 2

S.Ct. 629; Phillips v. New York (1960) 362 U.S. 456

80 S.Ct. 874; Needleman v. United States (1960)

L.Ed.2d 980, 80 S.Ct. 960, reh. den. 363 U.S. 858, 4 L.Ed.2d 1739,

(footnote continued on following page)

—10—

The dismissal of a writ of certiorari as improvidently

granted has been ordered for a variety of reasons, all re-

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v. New York (1979) 440

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366

.S. 207

366 U.

s(l

Ct. 67:

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Ct. 12

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Ed.2d

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‘ .Ed.

ourt

s v. Hildebrant (1977) 432 U.S. 183,

; Massachusetts v. Painten (1968) 389

.Ct. 660; Johnson v. Massachusetts

.Ct. 1895; Mishkin v. New Y:

86 S.Ct. 958, reh. den. 384 U.

. 1440; Cichos v. Indiana (1966) 385 U.S.

. California (1967) 388 U.S. 263, 18

v. United States (

reh, den. 365

. 271, reh. den. 385 U.S. 1020, 17 L.Ed.2d

“80

Bullock v. South Carolina (196

lbert

195

770,

L.Ed.

596,

, 25

397

970)

; Smith v. Butler (1

; Newsom v. Smyth (196

reh. den. 366 U

(

Ct. B ;

.Ed.

1265

36,

018

Ed.

, 20

rsey

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; Moon v. M

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S.Ct. 1730; Odom v. United

122, 91 S.Ct. 112, reh. den.

Seas

Monks v. New Je

1563

ae heohent Se Fe Pen et ee Pe arene.

a 5

volving around the fact that in the final analysis, there was

no dispute justifying the attention of this Court.°

As stated by co-authors Robert L. Stern and Eugene

Gressman:

**After certiorari has been granted, it may become ap-

parent to the Court upon oral argument and upon further

study that the basis upon which review was permitted

is in fact non-existent. ‘Examination of a case on the

merits, on oral argument, may bring into proper focus

a consideration which, though present in the record at

the time of granting the writ, only later indicates that

the grant was improvident.’ The Monrosa v. Carbon

Black, Inc., 359 U.S. 180, 184. As stated by Mr.

Justice Frankfurter in Armstrong v. Armstrong, 350

U.S. 568, 572 ‘[A}fter a case has been heard on the

merits, it is to be disposed of on the precise issue that

full study of the case discloses, and not on the basis

of the preliminary examination of the questions that

were urged in the petition for certiorari. Due regard

for the working of the certiorari system réquires this.

In view of the fact that about 1,300 applications were

made last term for leave to be heard . . ., determination

during this sifting process of the jurisdictional merits

in all these 1,300 cases can hardly be expected. Theory

and practice alike reject any such notion. The inevitable

cursory consideration that is normally given in a case

“In Rice v. Sioux City Cemetery, 349 U.S. 70, 99 L.Ed. 897, 75

S.Ct. 614 (fn. 2) (1955), the Court set forth an extensive list of cases

in which writs had been dismissed as improvidently granted up to the

time of that decision. The list was followed by a statement of the court

as follows: ‘‘Only in the light of argument on the merits did it become

clear in these numerous cases that the petitions for certiorari should not

Io crhm In some instances an asserted conflict turned out to

bod neve th in others, a federal question was wanting or decision could

the cpadion wiaaet eapetecaee hay tho litiga Sod thd ust rchones

question was merely to tigants not present

an issue of immediate public significance."’

pty, sae

on the preliminary round precludes the assumption that

a tentative finding of a federal question will survive

the thorough study of the record which consideration

of a case on the merits implies.’ ’’’

A review of the specific question to be considered by this

Court, taken in totality with the entire background of this

case, and particularly the decision of the Court of Appeals

below, indicates that certiorari herein may have been im-

providently granted.

This Court has made it clear that it wishes to limit its

consideration herein, leaving nearly all of the Third Circuit's

decision, and specifically its choice of law analysis, to stand

unassailed. That choice of law analysis is extensive and

thorough (JA 140-156), and it is clear that the law of the

United States will apply to determine the rights and liabilities

of the parties in this matter."

In determining whether or not certiorari has been im-

providently granted, this Court has not reached a decision

in past instances without a careful examination of the totality

of the circumstances surrounding each particular case. Bul-

lock v. South Carolina, 365 U.S. 292 (1961); Atchley v.

California, 366 U.S. 207 (1961); Monks v. New Jersey,

398 U.S. 71 (1970); Murel v. Baltimore City Criminal

"Supreme Court Practice, Fifth Ed., 1978 $5.15, p. 369, et seq.

rea ie eer oeemnne Om Smart Oe chains of

law rules of ia (the transferor state with respect to Piper), the

strict liability standard of Pennsylvania should apply to that defendant

(JA 149), and under the interests analysis h of

Pennsylvania (applied to ll, since the case against it had not been

transferred pursuant to 28 U.S.C. §1404(a)), the strict liability standard

of the United States, as embodied in the laws of either Ohio or Penn-

Ivania, should be applied as to that defendant. (JA 152, 155). (The

*s attention is directed to footnote 95 of the Third Circuit's opinion

(JA 155), in which the Court indicated that should Ohio law apply to

Hartzell, rather than Pennsylvania law to both defendants, ‘‘[gliving

separate on the Ohio standard for Hartzell and the Pennsylvania

standard for need not necessarily confuse the jury.’’).

OE ES

Court, 407 U.S. 355 (1972). In Phillips v. New York, 362

U.S. 456 (1960), the Court stated:

**After hearing oral argument and fully examining the

record . . ., we conclude that the totality of circum-

stances as the record makes them manifest did not

warrant bringing the case here.’’ 362 U.S. at 460. (See

also Baldonado v. California, 366 U.S. 417 (1961),

where the totality of circumstances disclosed failed to

support the substantial due process issues tendered in

the petitions for certiorari.).

Once the Court has had an opportunity to fully examine

a matter before it, it has often in the past become convinced

that the writ it had previously granted should be dismissed.

In Belcher v. Stengel, 429 U.S. 118 (1976), the Court was

faced with determining whether an off-duty policeman had

acted under ‘‘color of law’’ in breaking up a barroom brawl.

Full consideration of the record showed that this question

was groundless since evidence already introduced below

indicated that the question had already been independently

determined on several occasions by several means. The

Court stated:

**Now that plenary consideration has shed more light

on this case than in the nature of things was afforded

at the time the petition for certiorari was considered,

we have concluded that the writ should be dismissed

as improvidently granted."’

429 U.S. at 119-120.

Similarly, in Smith v. Butler, 366 U.S. 161 (1961), the

Court held that ‘*[a]fter full argument and due consideration,

it became manifest that the course of the litigation and the

decisions in the [state] courts did not turn on the issue on

the basis of which certiorari was granted.’’ 366 U.S. at 161.

Accordingly, the writ was dismissed.

pat ok

The case of Rice v. Sioux City Cemetery, 349 U.S. 70

(1955), is also instructive. In that case, this Court deter-

mined the propriety of its hearing a question of intellectual

interest, but entirely devoid of any pithy meaning within

the context of the underlying case. The Court stated:

**A federal question raised by a petition may be ‘of

substance’ in the sense that, abstractly considered, it

may present an intellectually interesting and solid prob-

lem. But this Court does not sit to satisfy a scholarly

interest in such issues. Nor does it sit for the benefit

of the particular litigants. (Magnum Import Co. v.

Coty, 262 U.S. 159, 163, 67 L.Ed. 922, 924, 43 S.Ct.

531; see also Address of Mr. Chief Justice Vinson,

before the American Bar Association, September 7,

1949, 69 S.Ct. v, vi; Address of Mr. Chief Justice

Hughes before the American Law Institute, May 10,

1934, XI Proc Am Law Inst 313). Special and impor-

tant reasons imply a reach to a problem beyond the

academic or the episodic.”’

349 U.S. at 74. (Emphasis added).

Similarly, in Burrell v. McCray, 426 U.S. 471 (1975),

Mr. Justice Stevens spoke for the Court:

‘*. . , just as the Court’s broad control of its discre-

tionary docket includes the power to dismiss the writ

because circumstances disclosed by a careful study of

the record were not fully apprehended at the time the

writ was granied, The Monrosa v. Carbon Black, Inc.,

359 U.S. 180, 183, 3 L.Ed.2d 723, 79 S.Ct. 1115,

so also, we should retain the power to take like action

when our further study of the law disclosed that there

is no need for an opinion of this Court on the questions

presented by the petition. Even though I agree with

Mr. Justice Brennan that the questions in this case are

important, I am nevertheless persuaded that the state

of the law applicable to the facts disclosed by this

seins

record is sufficiently clear that the dismissal of the writ

is a permissible exercise of the Court’s discretionary

power.

423 U.S. at 472-473.

Similarly, if the judgment below is clearly correct on

another ground, decision of the question upon which cer-

tiorari was granted may prove unnecessary. Belcher v. Sten-

gel, 429 U.S. 118 (1976); S.S. Monrosa v. Carbon Black

Export, 359 U.S. 180 (1959). Respondent respectfully sub-

mits that this is the circumstance now facing the Court.

Since the decision below rests on choice of law, an analysis

and decision by this Court on the question of the degree of

favorability of foreign law toward the plaintiff is unneces-

sary and would serve no purpose.

The purely academic nature of the question extant can

also be seen to overlap onto the principle of mootness. This

is a clear violation of the rule that there must be an actual

live controversy extant at all stages of appellate or certiorari

review. Preiser v. Newkirk, 422 U.S. 395, 401 (1975);

Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974); Roe

v. Wade, 410 U.S. 113, 125 (1973); SEC v. Medical Com-

mittee for Human Rights, 404 U.S. 403 (1972); United

States v. Munsingwear, Inc., 340 U.S. 36 (1950). Aithough

there is such a controversy as between the parties hereto

with respect to the final rights and liabilities of each of

them, as for an actual, live controversy with respect to the

particular issue before the Court, it is clear that none exists.

This Court has also decreed that the interest of the public

in a question before it may not be enough to warrant atten-

tion. ‘‘While this Court decides questions of public impor-

tance, it decides them in the context of meaningful litigation.

its fonction. in eesctving conflicts smsong te Courts of Ap-

peal is judicial, not simply administrative or managerial.”’

ers)

S.S. Monrosa v. Carbon Black Export, supra, 359 U.S.

180, 184 (1959).

Further, if the full record in a matter does not reflect an

adequate presentation of the question upon which certiorari

was granted, the writ will be dismissed as improvidently

granted. McClanahan v. Morauer & Hartzell, 404 U.S. 16

(1971); Tyrrell v. District of Columbia, 243 U.S. 1 (1917).

In the present case, it can be seen that the entire record has

dealt in the main with the traditional Gilbert factors deter-

minative of a forum non conveniens motion. More specif-

ically, choice of law issues based upon various interest

analysis approaches has consumed much of the time and

attention of the courts below in this matter. The question

presently before this Court is unique herein for its novelty,

and since there is a patently adequate ground for the decision

of the Court of Appeals, there is no need for the matter to

be heard anew.

The case of U.S. v. Rimer, 220 U.S. 547 (1911), though

not one of this Court’s more recent decisions, is nonetheless

instructive. In that case the Court dismissed the writ, holding

that the record and oral argument did not actually require

the Supreme Court to decide the question which it had

expected to answer when it granted certiorari. The Court

a closer scrutiny of the record made it exceedingly doubtful

whether the action of the court below dealt with the principle

which was deemed to have rendered necessary the granting

of the writ of certiorari. In a like manner, the Court dis-

missed a writ as improvidently granted in U.S. v. Mc-

Farland, 275 U.S. 485 (1927), holding that the writ should

be revoked because a decision in the case did not require

a decision of the questions which were presented in the

petition for certiorari. The Court exercised its discretionary

pe ee

power to so revoke the writ pursuant to Southern Power

Co. v. North Carolina Pub. Serv. Co., 263 U.S. 508 (1924).

Finally, in Layne and Bowler Corp. v. Western Well

Works, Inc., 261 U.S. 387 (1923), the Court said that al-

though certiorari had been granted on the ground that the

Courts of Appeals for two circuits were in conflict, careful

examination revealed that such decisions were really in har-

mony and not in conflict, and that there was thus no ground

for allowing the writ. Certiorari was also revoked in Wis-

consin Electric Co. v. Dumore Co., 282 U.S. 813 (1931),

the Court holding that it appeared that the asserted conflict

in decisions arose from differences in states of fact and not

in the application of a principle of law.

These cases indicate that the present situation calls for

revocation of the writs of certiorari. The decision of the

Court of Appeals below leaves empty the question now

extant. Whether or not a plaintiff might defeat a motion to

dismiss on the ground of forum non conveniens because the

law of an alternative forum is less favorable to her cause

of action than the law of the forum hearing the motion is

irrelevant by reason of the choice of law analysis of the

Court of Appeals. In addition, any purported conflict be-

tween the Second and Third Circuits fails to take into ac-

count two factors: First, DeMateos v. Texaco, Inc., 562

F.2d 895 (3d Cir. 1977), cert. denied, 435 U.S. 904 (1978),

held that the command in Van Dusen v. Barrack, 376 U.S.

612 (1964), that a transfer pursuant to 28 U.S.C. $1404(a)

not result in a change in the applicable law, was likewise

applicable to a forum non conveniens dismissal (562 F.2d

at 899). This holding still prevails and remains unrepu-

diated. Thus, all Circuits should, at the very least, take this

decision into account when the facts before them so warrant.

Second, the facts of an individual case cannot be considered

in a vacuum with respect only to the law of the alternate

forum vis 4 vis the law of the forum hearing the matter.

Rather, each of the Gilbert factors, juxtaposed with the facts

of the particular case, must be considered before a deter-

mination one way or another can be reached.

Therefore, Respondent respectfully submits that when

each of the cases in which there is an apparent conflict

between Circuits is analyzed, it becomes manifest that in

each instance the court acted correctly precisely because a

balancing of all of the Gilbert factors indicated only one

clear choice.

The assertions of Petitioners herein that the Court of

Appeals based its entire decision on the favorability to the

plaintiff of United States law and the unfavorability of the

law of Scotland thereto, simply fail to take into account the

massive balancing process in which the Third Circuit en-

gaged before reaching its decision in this matter. Further-

more, that balancing process was justified, since it was clear

to the Court that the District Court had abused its discretion

in not holding the defendants to their proper burden. (JA

131, 156).”

The irrefutable fact of this matter is that the basis for the

Court of Appeals’ decision was choice of law. Thus, how-

ever this Court decides the singular question now before it,

the result is the same: United States law as applied by the

Circuit Court will govern this controversy. Further, because

choice of law is such an important component of the doctrine

of forum non conveniens, it is highly unlikely that the Dis-

*See Pain v. United Technologies Corp., 637 F.2d 775 (D.C. Cir.

1980), in which the court stated: “*As this court concluded in Founding

Church v. Verlag (536 F.2d 429, 436 [D.C. Cir. 1976}):

not unlimited discretion to apply the doctrine

pat (ae

trict Court upon remand will refrain from accepting juris-

diction, in view of the fact that this country’s law is to be

applied, pursuant to the dictate of the Court of Appeals."°

The writs of certiorari herein were, therefore, improvidently

granted and should be revoked."

Important Considerations Support the Principle

That the Plaintiff's Choice of a Forum Should

Rarely Be Disturbed.

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the

Court set forth a threshold consideration to be weighed in

determining the merits of a motion grounded upon the doc-

trine of forum non conveniens. The point was made at the

very beginning of the Court’s opinion, thereby lending to

it the importance which in the Court’s estimation it deserved.

The language concerning the plaintiff's choice of a forum

was as follows:

‘*The principle of forum non conveniens is simply that

a court may resist imposition upon its jurisdiction even

when jurisdiction is authorized by the letter of a general

venue statute. These statutes are drawn with a neces-

sary generality and usually give a plaintiff a choice of

"In Fisher v. Agios Nicolaos V, 628 F.2d 308 (Sth Cir. 1980), the

court first set forth the ple that where it is determined that foreign

law applies, the United States court is free to retain or refuse jurisdiction.

The court then said: *‘However, for similar forum non conveniens rea-

sons, if United States law is icable, the American court should

retain jurisdiction rather than re the controversy to a foreign tri-

bunal.’’ 628 F.2d at 315. See also v. Cia. Maritima San Basilio,

S.A., 541 F.2d 307 (2d Cir. 1976); Bartholomew v. eygeeey ayer a

Inc., 263 F.2d 437, 443 (2nd Cir. 1959), cert. denied, 359 U.S. 1

(1959); Mattes v. National Hellenic American Line, S.A., 427 F.Supp.

619, 629 (S.D.N. By jh

An instructive ve annotation on this subject is en-

titled ‘When Will States Ceont Dieolee Writ of Conan eo Im-

providently Granted’’, Sheldon R. Shapiro, J.D., 30 L.Ed.2d 829.

—2—

courts, so that he may be quite sure of some place in

which to pursue his remedy . . . It is often said that

the plaintiff may not, by choice of an inconvenient

forum, ‘vex’, ‘harass’, or ‘oppress’ the defendant by

inflicting upon him expense or trouble not necessary

to his own right to pursue his remedy. But unless the

balance is strongly in favor of the defendant, the plain-

tiff’s choice of forum should rarely be disturbed.’’ 330

U.S. at 507-508.

With few variations," this consideration, announced at

the outset by the Supreme Court in Gilbert, remains para-

mount whenever courts consider a forum non conveniens

issue.”

"Petitioners have weakl to that this consideration

should be re t minor stats when te fal partyin inert

™ ,

oa tasie hc Metal & 10, & ea), ones a ae of

nted out, ‘The district judge believed that the plaintiff”

nes lt ah Beedle vaswey sedate leek. eon a ie

burden onvenience corresponding) , when "

tiff — more ot the plaitif's home ground — is foreign or when

the forum re glee is spe om corte tory gerafd these

burden- the Suprens

Court or on sy HOA l in ions

"Lehman v. Napier, 101 F Supp, 13, ‘516-317 (D.C. lowa po

Collins v. American Automobile Ins. Co. of St. Louis, Mo., 128 F.S

ys 230 (D.C.N.Y. 1955); Molloy v. Bemis Bro, Bag Company,

F.Supp. 265, , 267 (D.C.N.Y. 1955), Medich v. American Oil C. ’

682, 683 (D.C. Pa. Den. Menard County Mutual

Fire ine 0., 164 F.Su . 289, 292 (D.C. Ill. 1960); Zelman v. Beth-

lehem Steel Cc F. Supp. 246, 248 (D.C. Pa. 1960); Vandusen

v. J.C. Penney Co., 407 F. . 529, 533, 534, 536 (D.C. Ark. 1962);

la v. Schlosberg, 253 888, 889 (D.C. Cir, 1958); Blue Bell,

Inc. v. Jaymar-Ruby, Inc., 311 F. . 942, 943-44 (D.C.N.Y. 1969);

Bartolacci v. Corp. Presiding Bishop, Etc., 476 F.Supp. 381, 383

dove Pa. 1979), B Intern. Lid. v. Gulf Con. Intern., Inc., 441

. 819, 822 (D.C. Tex. 1977); Alcoa Steamship Co., Inc. v.

hiv ordic Regent, 453 F.Supp. 10, 11 (D.C.N.Y. 1978); Mizokami

of Arizona v. Mobay hemical Corp. 483 F.Supp. 201, 206

Oe. Sho. 1980); Bolanos v. Gulf Oil Corp., 502 F. . 689, 690

(W.D. Pa. 1980); Shutte v. Armco Steel Corp., 431 F. 22, 25 (3d

Cir. 1970); Fisher v. Gales Neeeen < 628 F.2d 308, 312 (Sth Cir.

pad Jy a ‘onsultants International, Ltd. v. S.S. Hong

i r, 513 F. 2 661, 671 (9th Cir. 1975); 0. Cc

i rignk Se sesh am Bets “engi al

as enn. ): a

to choose Sip. 388 the law an alternative, is recognized as

a valuable right of choice which not be disturbed in the absence

of strong reasons therefor.’

im, pa

Indeed, the concept of the plaintiff being allowed his

choice of location in bringing suit is fundamentally tied to

the concepts of balancing and the burden on the defendant,

both of which are inherent in the doctrine of forum non

conveniens. In Paper Operations Consultants International,

Lid. v. §.S. Hong Kong Amber, 513 F.2d 667 (9th Cir.

1975), the Court reiterated the factors set forth in Gilbert

which must always be considered, then stated:

**The court in Gulf Oil Corp. cautioned that in con-

sidering these and other factors, the plaintiff's choice

of forum should ‘rarely be disturbed’ unless the balance

is strongly in favor of adjudicating the matter in another

forum.’ 513 F.2d at 671.

Any restriction upon the plaintiff's original choice is to

be arrived at only after this careful balancing process has

been completed. Gulf Oil Corp. v. Gilbert, supra, 330 U.S.

at 507-508; Reavis v. Gulf Oil Corp., 85 F.R.D. 666 (D.

Del. 1980). In Schilling-Hillier S.A.1I.E.C. v. Virginia-Car.

Chem. Corp., 19 F.R.D. 271 (S.D.N.Y. 1956), the Court

held:

**In Gulf Oil Corp. v. Gilbert, . . . the Supreme Court

declared that ‘unless the balance [of convenience] is

strongly in favor of the defendant, the plaintiff's choice

of forum should rarely be disturbed’. This was inter-

preted by the Court of Appeals for this circuit to mean

that the defendant ‘has the burden of making out a

strong case for a transfer’ which overweighs not only

the convenience of the plaintiff but the right of the

plaintiff to choose his forum. Ford Motor Co. v. Ryan,

182 F.2d 329, 330 (2d Cir. 1950).’’ 19 F.R.D. at 272.

Furthermore, if bringing the matter in another forum

would merely shift the convenience from one party to the

other, dismissal is not justified to overturn the plaintiff's

original choice:

aa, , ae

**The facts of this case present what has been described

as an ‘equitable standoff’; both parties are likely to

suffer roughly equal inconvenience. Under such cir-

cumstances, the transfer to another forum would

merely shift the inconvenience from the defendants to

the plaintiffs. Consequently, the plaintiffs’ choice of

forum should not be disturbed. (Citations omitted).’’

Lieb v. American Pac. Intern., Inc., 489 F.Supp. 690,

697 (D.C. Pa. 1980).

In Cheeseman v. Carey, 485 F.Supp. 203 (D.C.N.Y.

1980), the court considered the plaintiff's right to choose

a forum in connection with the dangers of forum shopping:

**A court seeking reasons for choosing one or the other

of these conflicting doctrines [i.e., deference accorded

plaintiff's choice vs. forum shopping] is inevitably led

to Mr. Justice Jackson’s analysis of the doctrine of

forum non conveniens in Gulf Oil Corp. v. Gilbert

(citation omitted). Forum shopping is no more an evil

than any other tactical determination a party makes in

its behalf. Any competent lawyer chooses a forum with

his or her client’s interests in mind. This is undoubtedly

why Justice Jackson made clear that a party had to do

more than forum shop to justify invoking forum non

conveniens; the choice of forum must have been made

with some harassment in mind to have justified dis-

missal of the action.’’ 485 F.Supp. at 215.

Finally, two other points have been made by the courts

which presage the retention of litigation in the forum of the

plaintiff's original choice. In Reavis v. Gulf Oil Corp., 85

F.R.D. 666 (D. Del. 1980), the court held:

‘*Finally, at least two miscellaneous considerations

support the denial of defendant’s motion. First, Del-

aware is the state in which two of the defendants are

incorporated; an especially strong showing is required

to support a forum non conveniens motion where plain-

tiff has ceded defendants the ‘home turf’ advantage.

ra, ee

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

at 453.'* Second, a particularly strong showing of vex-

atiousness, harassment, or oppression is required where

defendant’s economic capabilities are disproportion-

ately greater than plaintiff's. . . . D’Angelo v. Petro-

leos Mericanos, 398 F.Supp. 72, 84 (D. Del. 1975).

On the basis of these considerations . . . it is apparent

that plaintiff in this case should not be denied the forum

of his choice.’’ 85 F.R.D. at 673."

It is clear from the above that the plaintiff's choice of a

forum is to be accorded great weight as mandated by Gilbert

and its progeny. However, beyond all of the traditional,

irrefuted and irrefutable arguments for granting such weight

to the plaintiff's selection, there is yet another, highly just

and desirable benefit to be accomplished by this accord: A

defendant, be it individual or business entity, will in this

way be held to the highest possible standard of accounta-

bility for his purported wrongdoing.

Like many American companies, the defendant manu-

facturers herein disseminate their products on a world-wide

basis."° To allow such defendants to use the forum non

lp ee oe

ts’ burden on the present motion. (JA 120-124)

‘It is apparent that both of these factors are applicable in the case

extant. Aircraft . is a Pennsylvania corporation, while Hart-

Inc. is an corporation. (JA 119). Further, it goes

without saying that their economic capabilities far exceed those of the

nearly destitute Scottish heirs who are the real parties in interest.

*As stated C.O. Miller in his article entitled **Aviation Accident

me lh yrontow yp hoy agg

—u4—

conveniens vehicle to override the plaintiff's choice of a

forum is to allow them to escape their responsibility for

competent and careful manufacturing practices. In the pre-

sent instance, the defendants are seeking to hide behind the

fact of the real parties’ in interest foreign citizenship to

obviate their responsibilities as perpetrators of defective

products which lead to injury and death, and further to

obviate the fact that recompense is due and owing, no matter

where the plaintiffs reside.

Respondent does not attempt to hide the fact that her

prospective recovery in the courts of the United States is

much greater than in those of Scotland. It is openly conceded

that the choice of a United States forum was made precisely

because the jurisdictions in this country allow the cause of

action for strict liability for manufacture of defective prod-

ucts and the cause of action for wrongful death while in

Scotland, the sole basis upon which an aggrieved plaintiff

can recover in a case such as this is a survival action based

on negligence. The principles of strict liability accepted by

courts in the United States are not so accepted uader Scottish

law."’

While it may be true that a plaintiff will always seek the

forum with the most favorable law, it is clear that within

that concept of what is *‘favorable’’ is included a standard

or standards of conduct such that a defendant will be held

more highly accountable therein than he would be in a

supposedly ‘‘unfavorable’’ forum. Thus, to advance the

plaintiff's choice is to advance a highly desirable objective

and public policy.

Defendant-manufacturers, then, are eager to avoid being

held answerable for wrongdoing in American courts apply-

"Scotland Law : Death; Martindale-Hubbell Law Directory,

Vol. VIII, 1981, p. 4101.

—25.

ing American law. The reason is obvious. Monetary judg-

ments tend to be considerably higher under the laws of

courts in the United States than in other forums. To force

the present plaintiff, as well as other similarly situated plain-

tiffs, into a foreign jurisdiction will preclude her from bring-

ing causes of action to which she is rightfully entitled. It

can only be concluded that Petitioners desire to have this

matter heard in such a jurisdiction precisely because of the

limitation on applicable causes of action, as well as the

unavoidable fact that Petitioners stand to have a larger mon-

etary judgment entered against them here.

The result, then, is a ‘‘two-way street’’. Sacrifice the

plaintiff's choice of a forum and we sacrifice the high stand-

ard to which a defendant might prospectively be held. Main-

tain the weight long accorded the plaintiff's choice, and we

simultaneously maintain higher standards which manufac-

turers and other disseminators of products must meet.'* The

latter, obviously, is the more favorable alternative.

The Court below concluded that the defendants had not

met their burden in demonstrating that the balance of equities

and the balance of the other Gilbert factors should swing

in their direction. In reaching that conclusion, it gave the

proper weight to the plaintiff’s choice of forum, juxtaposing

alongside that choice the other relevant factors as outlined

by the Court in Gilbert and its offspring. The outcome was

that the plaintiff's choice was not inconvenient, and that her_.

selection of a forum should stand. Respondent respectfully

submits that the court acted correctly in weighing each of

"This, of course, ua Sho oceans of deutennne

oe Clark Equipment Co., Cal.A Oa 79, 74

),; Hurtado v. Superior Court, 11 36 514, 522 Pad 666

(1974)}. In its choice of law analysis, the Court of Appeals dealt sub-

with this concept (JA 147 -149), reac the conclusion that

would have absolutely no interest in its own law to

eo se since it domiciled neither of the y wrongdoing man-

ao, waa

the applicable factors and in according the plaintiff's choice

its proper value and significance."

The Requirement That an Alternative Forum Be

Available to Plaintiff Under the Doctrine of Forum

Non Conveniens Includes a Remedy and Law Which

Are Acceptable and Adequate.

Along with setting forth the importance of the plaintiff's

choice of a forum, and indeed even prior thereto, the Su-

preme Court in Gulf Oil Corp. v. Gilbert, supra, stated that

the doctrine of forum non conveniens absolutely requires

the availability of an alternative forum in which an aggrieved

plaintiff might seek his remedy, before a motion grounded

upon the doctrine could be granted. The court set forth the

relevant language in this regard as follows:

**In all cases in which the doctrine of forum non con-

veniens comes into play, it presupposes at least two

forums in which the defendant is amenable to process;

the doctrine furnishes criteria for choice between

them.”’ 330 U.S. at 506-507.

This requirement has been carefully heeded so that when

a plaintiff, truly wronged, has nonetheless chosen an in-

convenient site for litigation, he may still be assured of his

day in court — somewhere. (DeMateos v. Texaco, Inc.,

562 F.2d 895, 899 (3d Cir. 1977); Calavo Growers of Cal-

ifornia v. Belgium, 632 F.2d 963, 968 (2d Cir. 1980); Fosen

v. UTC, 484 F.Supp. 490, 503 (D.C.N.Y. 1980).)

"Granting the pb mospaadbages g pal ce

seem to result Mente wd ap pe litigation Yolsted

Teas ant thaasavet ee Glens at wes

courts >

iter...

In Reavis v. Gulf Oil Corp., 85 F.R.D. 666 (D.C. Del.

1980), the court made clear the importance of this principle:

**Under no circumstances, however, according to Gil-

bert and subsequent cases, may a court dismiss an

action under the doctrine of forum non conveniens

unless an adequate alternative forum exists. Gulf Oil

Corp. v. Gilbert, 330 U.S. at 506-507. See also North

Branch Products, Inc. v. Fisher, 109 U.S. App. D.C.

182, 284 F.2d 611 (D.C. Cir. 1960), cert. denied, 365

U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961); Dom-

ingo v. States Marine Lines, 340 F.Supp. 811 (S.D.

N.Y. 1972); J.F. Pritchard & Co. v. Dow Chemical

of Canada, Ltd., 331 F.Supp. 1215 (W.D. Mo. 1971),

aff d 462 F.2d 998 (8th Cir. 1972).’’ 85 F.R.D. at

670.

Further, demonstration of the existence of an alternative

forum is part of the defendant’s general forum non con-

veniens burden, Fosen v. UTC, supra, at p. 503; Scherten-

leib v. Traum, 589 F.2d 1156, 1160 (2d Cir. 1978).

The Court in Gilbert did not elaborate on the concept of

an alternative forum, so as to mar clear what constituted

an acceptable alternative. However, several courts have

since come to the conclusion that included therein of ne-

cessity are an adequate remedy and law, so that forcing

plaintiff out of the forum originally chosen will not com-

pletely deprive him of the rights and advantages he sought

there.

In Phoenix Canada Oil Co. Lid. v. Texaco, Inc., 78

F.R.D. 445 (D.C. Del. 1978), the court dealt at length with

the Gilbert mandate requiring an alternative forum, and the

ramifications thereof, speaking as follows:

** ‘A prerequisite to dismissal under the doctrine of

forum non conveniens is the existence of an alternative

forum where plaintiff can litigate his claims.’ Wan v.

Avis Rent A Car System, Inc., No. 75-28 (D. Del. Jan.

a ee

20, 1976) (Memorandum Opinion) (footnote omitted).

‘(T]he action will not be dismissed unless a suitable

alternative forum is available to the plaintiff.’ Re-

statement (Second) of Conflict of Laws §84, Comment

c (1971), “That there is an alternative forum that will

take jurisdiction of the case and where plaintiff can get

the relief he would get in the federal court must clearly

appear before dismissal can be ordered.’ C. Wright,

Law of Federal Courts 186 n. 23 (1976). ‘Limitation

upon or denial of recovery is in and of itself grounds

for not disn.issing on forum non conveniens grounds.’

Fitzgerald v. Texaco, Inc., 521 F.2d 448, 458 (2d Cir.

1975) (Oakes J., dissenting), cert. denied, 423 U.S.

641 (1976).

**That the Third Circuit Court of Appeals believes the

existence of a suitable alternative forum to be critical

is boldly demonstrated in this passage from Mobil

Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611,

614 (3d Cir.), cert. denied, 385 U.S. 945, 87 S.Ct.

318, 17 L.Ed.2d 225 (1966):

‘The issue of convenience aside, the more important

question is whether the relinquishment of jurisdiction

would best serve the ends of justice. The court below

seemed to think that it would, but with this we cannot

agree. There is no evidence in the record that the

retention of jurisdiction would seriously prejudice

[defendant]. However, the relinquishment of juris-

diction could result in serious detriment to |plain-

tiffs’ | causes of action. It would relegate the libelants

to a foreign forum in which the procedural remedies

are far less conducive to the fair administration of

justice than those available under our admiralty

rules... .’

‘Thus the Third Circuit has apparently endorsed the

concept that not only must an alternative forum exist,

and not only must that forum provide relief for the

actions alleged to violate United States law, but the

aay ae

alternate forum must also provide comparable proce-

dural protections to those in the United States. This

Court needs not hold as much. Sufficient doubt arises

with respect to the existence of an alternative forum

and ‘he availability of relief for the alleged actions to

justify a decision not to dismiss the case without resort

to a comparison of alternative procedural safeguards.’’

78 F.R.D. at 455. (Emphasis added).”

The court went on to discuss factual considerations with

respect to the particular circumstances then before it, and

stated:

**Finally, even if an Ecuadorian tribunal will hear the

case, jurisdiction is had over all defendants, and plain-

tiff financially is able to proceed in Ecuador, it appears

that no generally codified Ecuadorian legal remedy

exists for unjust enrichment or the tort claims asserted

here.”’

78 F.R.D. at 456.

the of , counsel for then- Reyno spoke tele

rewaey fhoes Michael J. R. Simpson, of T

urray & Jamieson in Edinburgh. He informed us that Scottish courts

do as we know them in the United States

Only if a is to attend the of the matter is counsel

a’

Such is the situation here. Since Scotland recognizes no

causes of action for wrongful death and strict products li-

ability, it is evident that defendants’ assertions that that

country presents an acceptable alternative forum are un-

founded. To force Respondent into the courts there would

do more than deny her a higher monetary recovery; such

a move would be tantamount to the denial of basic rights

which exist here in the United States. There is, therefore,

no acceptable alternative forum as mandated by Gilbert.

The Phoenix court went on to consider and reject the

applicability of Vanity Fair Mills, Inc. v. T. Eaton Co., 234

F.2d 633 (2d Cir. 1956), cert. denied, 352 U.S. 871, 77

S.Ct. 96, 1 L.Ed.2d 76 (1956). In Vanity Mills, a dismissal

based on forum non conveniens was granted. The Canadian

justice system had already rendered certain decisions con-

cerning the trademarks in issue and it was not disputed that

plaintiff could obtain fair adjudication in Canada. The Sec-

ond Circuit examined relevant Canadian law to assure exis-

tence of a legal remedy. The Vanity Mills Court stated:

**Were this merely a transitory tort action in which

disputed facts could be litigated as conveniently here

as in Canada, we would think. the jurisdiction of the

district court should be exercised. But we do not think

it the province of United States district courts to de-

termine the validity of trade-marks which officials of

foreign countries have seen fit to grant.’

234 F.2d at 647.

In concluding, the Phoenix court determined that the

United States forum should retain jurisdiction:

**In the case at bar, there is (1) an alleged connected

tort action that can be litigated here; and (2) the absence

of a clear issue under a developed body of foreign law

hinging upon a previous determination under that for-

eign law. For these reasons, Vanity Mills is not dis-

positive of this action.’’

78 F.R.D. at 457.

pear a

These cases clearly indicate that the existence of an al-

ternative forum, the sine qua non set forth in Gilbert, is not

simply an abstract concept. Rather,,.before another juris-

diction can be considered as a possibly acceptable alter-

native, the defendant moving for dismissal based upon

forum non conveniens must demonstrate that an adequate

remedy and law are available in the second forum, so that

plaintiff might enjoy substantially the same rights and pros-

pects for recovery as he would have in the original court.

In other words, as set down by the Third Circuit in DeMateos

v. Texaco, supra, even a forum non conveniens dismissal

must result only in a change of courts, and not also in a

change of law, rights and liabilities. (562 F.2d at 899). See

also Chirinos de Marin (Alvarez) v. Creole Petroleum

Corp., 613 F.2d 1240 (3d Cir. 1980).

Both Petitioners herein have relied on Dahi v. United

Technologies Corp., 472 F.Supp. 696 (D.C. Del. 1979),”'

urging that the facts therein are so substantially similar to

those of the case now at bar that the Third Circuit should

have followed the example of the Dahl court in dismissing

on the ground that the foreign forum is far more suitable

for the trial of this matter. Petitioners’ reliance is misplaced.

The Dahl case involved the crash of a Norwegian owned

and operated helicopter in Norwegian waters. The four

Norwegian nationals aboard were killed. Acting upon a

motion based upon forum non conveniens, the American

court, prior to turning to the merits of the motion, considered

the applicability of Phoenix Canada Oil Co. v. Texaco,

Inc., supra, but rejected the holding therein. Precisely be-

cause an almost identical remedy was permitted under Nor-

wegian law, the court concluded that Norway presented an

acceptable alternative forum, and went on to dismiss the

"Brief for Petitioner Hartzell, pp. 11, 12, 17, 30, 34; Brief for

Petitioner Piper, p. 30.

the.

matter because of this and other traditional forum non con-

veniens factors. The court’s language is of crucial impor-

tance in the case now under consideration:

**. . . the plaintiffs argue that Norway is not an ac-

ceptable alternative forum because there is no evidence

that it will afford them remedies or procedural protec-

tions comparable to those available in the United

States. The record, however, refutes that argument.

UTC has filed an affidavit by a Norwegian attorney

which indicates that . . . under Norwegian law UTC

would be subject to unlimited liability for injuries and

damages resulting from the helicopter crash shown to

have been caused by its negligence. The affidavit also

states: ‘Norway is in the process of developing case

law built up around product liability cases’ . . . Ac-

cordingly, the Court finds that Norway is a suitable

alternative forum and turns to the merits of the defen-

dant’s motion.’’ 472 F.Supp. at 699. (Emphasis

added).

See also Fosen v. United Technologies Corp., 484 F.Supp.

490, 504 (S.D.N.Y. 1980).

That the Dahil court gave primary consideration to the

suitability of the proposed alternative before turning to the

motion on the merits is significant. As did the court in

Gilbert, the Dahl court realized that such a question is of

threshold importance, and that a determination in this re-

spect must be made before the court can go on to the other

Gilbert factors. Should the alternative forum not be found

suitable, the case must remain in the original court. Fosen

v. United Technologies Corp., supra, 484 F.Supp. 490

(S.D.N.Y. 1980).

' In the present case, it is clear that plaintiff will suffer

great prejudice of her right to bring certain causes of action

if this matter is forced to trial in Scotland. Unable to pros-

ecute causes of action for wrongful death and strict products

wie:

liability, and limited solely to proving negligence, she will

be denied fundamental rights granted her under American

law. On this basis alone, all considerations of the amount

of any possible recovery aside, it is obvious that Scotland

does not rise to the status of an acceptable alternative forum.

Even before any of the merits of the Petitioners’ arguments

are heard, it is impossible for them to successfully proceed

past the threshold directive of this Court in its decision in

Gulf Oil Corp. v. Gilbert that such an alternative be found.

For this reason, this matter must, under any notions of

justice and fairness, proceed in the courts of the United

States.

Conclusion.

For all of the foregoing reasons, it is respectfully sub-

mitted that the decision and order of the Court of Appeals

for the Third Circuit were correct, and that this matter should

be remanded to the United States District Court for the

Middle District of Pennsylvania for trial.

Dated: July 10, 1981.

Respectfully submitted,

DANIEL C. CATHCART,

Counsel of Record,

MICHAEL D. MOORHEAD,

CAROLYN D. RICH,

MAGANA, CATHCART, MCCARTHY & PIERRY,

Attorneys for Respondent, Gaynell Reyno.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.