# Respondents Brief — Piper Aircraft Co. v. Reyno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1982
- **Citation:** 454 U.S. 235

## Text

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

I.

The Writs of Certiorari in This Matter Were Improv-

I NG hss dics cuass cijanad seven abba dicrnrceces 9

Il

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

iv

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

vi

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

10

17

20

22

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

ix

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 =]

-

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
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.S. 207
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‘ .Ed.
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32
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
22
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84
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195
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, 25
397
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; Smith v. Butler (1

; Newsom v. Smyth (196
reh. den. 366 U
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87
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; Moon v. M

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S.Ct. 1730; Odom v. United

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

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Seas

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Monks v. New Je
1563

w
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."’

iF

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

7

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

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A05. Public record. Not legal advice.