Amicus Brief — Piper Aircraft Co. v. Reyno

Nos. 86-848; 80-883

In THE

Supreme Court of the United States

OctToser TERM, 1980

HARTZELL PROPELLER, INC.,

and

Piper AIRCRAFT COMPANY,

Petitioners,

Vv.

GAYNELL REYNO,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

OF AMICI CURIAE

BRIEF FOR THE BOEING COMPANY, °

LOCKHEED CORPORATION,

McDONNELL DOUGLAS CORPORATION,

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

May 9, 1981

KeiTH GERRARD

JouN D. DiLtow*

RICHARD C. CoyLe

PERKINS, Cok, STONE,

OLSEN & WILLIAMS

1900 Washington Building

Seattle, Washington 98101

(206) 682-8770

Attorneys for Amicus Curiae

The Boeing Company

JOHN E. CAVANAGH

SAMUEL F. Pearce*

JOSEPH TWOMEY

P.O. Box 551

Burbank, California 91520

(203) 847-6601

Attorneys for Amicus Curiae

Lockheed Corporation

Tuomas C. WaLsH*

JOHN J. HENNELLY, Jr.*

BRYAN, CAVE, MCPHEETERS

& McRoserts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

Attorneys for Amicus Curiae

McDonnell Douglas Corporation

* Counsel of Record

Nos. 80-848; 80-883

In THE

Supreme Court of the United States

Ocroper Term, 1980

HARTZELL PROPELLER, INC.,

and

Piper AIRCRAFT COMPANY,

Petitioners,

v.

GAYNELL REYNO,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF

OF AMICI CURIAE

The Boeing Company, Lockheed Corporation, and

McDonnell Douglas Corporation hereby respectfully move for

leave to file the attached brief as amici curiae in this case. The

consent of the attorney for the respondent and of the attorneys

for the petitioners was requested but refused.

The interest of The Boeing Company, Lockheed Corpo-

ration, and McDonnell Douglas Corporation in this case arises

from their business as manufacturers of commercial jet aircraft

which are used worldwide. From time to time, these aircraft

are involved in accidents in countries other than the United

States. In the past decade, Boeing, Lockheed, and McDonnell

Douglas have been subject to an increasing number of lawsuits

2

brought in the United States arising out of foreign aircraft

accidents. Because much of the evidence is located abroad, the

operator and other key actors are not partics to the American

suit, and the attendance at trial of key foreign witnesses cannot

ve compelled, these cases are extremely difficult for the manu-

facturer to defend.

The doctrine of forum non conveniens has provided manu-

facturers with an important procedural safeguard against litiga-

tion which can more fairly be tried in foreign courts. However,

in the instant case, the Court of Appeals concluded that a

federal court could not dismiss any action on the basis of forum

non conveniens where the dismissal would result in a change in

the applicable law. Reyno v. Piper Aircraft Co., 630 F.2d 149,

164 (3d Cir. 1980). This decision, if affirmed, will emasculate

the doctrine of forum non conveniens since plaintiffs rarely

choose to bring suits in a forum which will apply a less

favorable law than another, more convenient forum.

The brief which amici curiae are requesting permission to

file addresses important issues not heretofore considered by this

Court concerning the relationship between the principles set

forth in Van Dusen v. Barrack, 376 U.S. 612 (1964), and the

doctrine of forum non conveniens. If the argument of amici

curiae is accepted, it would be dispositive of this case.

Respectfully submitted,

Kerrh GERRARD

Joun D. Ditow*

Ricuarp C. CoyYLe

Perkins, Co1z, STONE,

Ovsen & WILLIAMS

1900 Washington Building

Seattle, Washington 98101

(206) 682-8770

Attorneys for The Boeing Company

May 9, 1981

JouN E. CAVANAGH

SAMUEL F. Pearce*

JosepH TWOMEY

P.O. Box 551

Burbank, California 91520

(203) 847-6601

Attorneys for Lockheed Corporation

JOHN J. HENNELLY, Jr.*

Tuomas C. WaLsH*

Bryan, Cave, MCPHEETERS

& McRoserts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

Attorneys for McDonnell Douglas

Corporation

*Counsel of Record

Nos, 80-848; 80-883

IN THE

Supreme Court of the United States

Octoser Term, 1980

HarTzeit Propeicer, INC.,

and

Piper AIRCRAFT COMPANY,

Petitioners,

Vv.

GAYNELL REYNO,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE BOEING COMPANY,

LOCKHEED CORPORATION,

McDONNELL DOUGLAS CORPORATION,

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

TABLE OF CONTENTS

PAGE

PRELIMINARY STATEMENT. l

INTEREST OF AMICI CURIAE 2

STATEMENT OF THE CASE 4

I. Commencement of the Action and Transfer..................... 4

Il. The District Court’s Dismissal 5

Ill. The Court of Appeals’ Reversal 6

SUMMARY OF ARGUMENT 7

ARGUMENT 9

THE COURT OF APPEALS ERRED IN GIVING

DECISIVE WEIGHT TO ITS ASSUMPTION THAT A

SCOTTISH COURT WOULD APPLY A LAW LESS

FAVORABLE TO PLAINTIFF THAN THE LAW

pale WOULD BE APPLIED BY AN AMERICAN .

CONCLUSION 20

ii

TABLE OF AUTHORITIES

CASES PAGE

In re Air Crash Disaster at Boston, Mass., 399 F. Supp. 1106 (D.

Mass. 1975) 13

In re Air Crash Disaster Near Illinois, on May 25, 1979,

500 F. 1044 (N.D. Ill. 1980), rev'd on other grounds, 16

Av. Cas. 17,122 (7th Cir. January 5, 1981)

Aanseoy Co., Inc. v. M/V Nordic Regent, 636 F.2d 860 (2d Cir.

15

Anglo-American Grain Co. v. The A/T Mina D’Amico, 169 F.

908 (E.D. Va. 1959) 18

Archibald vy. Cinerama Hotels, 15 Cal. 3d 811, 544 P.2d 947, 126

Cal. Rptr. 853 (1976) 12

Bouvy- v. Pan American World Airways, Inc., 15 Av. Cas.

17,153 (S.D.N.Y. 1978) 3,7

Canada Malting Co., Lid. v. Paterson Steamships, Lid., 285 U.S.

413 (1932) 8,17 ,18

One. Motors Corp., 80 Wis.2d 91, 258 N.W.2d 680. ‘

Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F. Supp. 433

(S.D.N.Y. 1964) 14

Clayton v. Warlick, 232 F.2d 699 ( 4th Cir. 1956) 20

Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980). 3

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

denied, 435 U.S. 904 (1978)

Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929)......... 14

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938 )..........-.-..-.10,11,13,19 ,20

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

denied, 423 US. 1052 (1976)

Forsyth v. Cessna Aircraft Co., 520 F.2d 608 ( 9th Cir. 1975) ......... 15

Fosen v. United Technologies Corp., 633 F.2d 203 (2d Cir. 1980).. 3

George v. Aircraft Co., 332 F.2d 73 (2d Cir.),

denied, 397 S. 904 (1964) Sopa

oon) Eastern Air Lines, Inc., 391 F. Supp. 31 (S.D.N.Y. %

Gould, Inc. v. Health Science, Inc., 54 Cal. App. 34 687, 126 Cal.

Rptr. 726 (1976) Tt

Great Northern Ry. Co. v. Superior Court, 12 Cal. 3d 105, 90

Cal. Rptr. 46111970). See ll

Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964).......... 7

CASES PAGE

Wee ‘ "cma Industries, Inc., Civ. No. M-80-722 (D.Md. 8

eb. 3,

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ......cceccsceeserees 7,14,15 ,18

H. L. Green Co. v. MacMahon, 312 F.2d 650 (2d Cir. 1962), cert.

denied, 372 U.S. 928 (1963) ; 18

Harrison v. Wyeth Laboratories, No. 79-2788 (E.D. Pa. July 1, "

1980) l

H v. Boeing Co., 106 Cal. App. 3d 576, 165 Cal. Rptr.

190 (1980) 11,12

Junco vy. Eastern Air Lines, Inc., 399 F. Supp. 666 (S.D.N.Y.

1975), aff'd, 538 F.2d 310 (2d Cir. 1976) 7

Koster v. Lu mbermens Mi Casualty Co., 330 U.S. 518 (1947). 14

Lapides v. Doner, 248 F. Supp. 883 (E.D.Mich. 1965) ..............00++ 14

Macedo v. Boeing Co., . Nos. 79-C-2488, 4771, and 4772

N.D. Ill. Jan. 11, 1980), appeal docketed, No. 80-1559 (7th

ir. April 25, 1980) 3

or General Motors Corp., 439 F. Supp. 24 (N.D. Ohio Ms

Norwood v. k, 349 U.S. 29 (1955) 10

Orr v. Boeing Co., CV-79-526 (C.D. Cal. — 23, 1979), appeal

docketed, No. 79-3404 ( 9th wg ALD, 9) 3

Pain v. United ico wp 9-4 Corp, 637 F.2d 775 (D.C. Cir. 1980). 3

Parsons v. Chesapeake & O.R. Co., 375 U.S. 71 (1963) ........ccesse000 14

In ory Aety R. Co. Securities and Antitrust Litigation,

543 F.2d 1058 (3d Cir. 1976) 20

bhi’ AOA sad ana Cement Mfg. Co., 376 F. Supp. 1054 (D.Md. re

Robinson v. Reed-Prentice Division of Package Machinery Co., 49

N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 ( 1980)............. 17

Scheinbart v. Certain-Teed Products Corp., 367 F. Supp. 707

(S.D.N.Y. 1973) 19

Shields v. Mi Construction Co., Civ. No. 79-628 (S.D.N.Y.

Feb. 21, 1981) 15

gay ng FSasaad v. Avco Lycoming Corp., 411 F.Supp. 598 (D.

Szantay v. Beech Ai t Corp., 349 F.2d 60 (4th Cir. 1965)......... 14

Bi v. Wean United, Inc., 50 Ohio St. 2d 317, 364 N.E.2d 267

(1977) 17

Thomson v. Palmieri, 355 F.2d 64 (2d Cir. 1966) 14

Van Dusen v. Barrack, 376 U.S. 612 (1964)........00+++ 2,8,9,11,13,18 ,19

STATUTES

28 U.S.C. § 1404(a) ... 4,8,10,13 ,18

OTHER

Restatement (Second ) of Conflict Laws § 8, Comment k................ 16

Nos. 80-848; 80-883

In THE

7

Supreme Court of the United States

OctTosper Term, 1980

HARTZELL PROPELLER, INC.,

and

Piper AIRCRAFT COMPANY,

Petitioners,

Vv.

GAYNELL REYNO,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE BOEING COMPANY,

LOCKHEED CORPORATION,

McDONNELL DOUGLAS CORPORATION,

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

PRELIMINARY STATEMENT

This matter presents important issues not previously ad-

dressed by this Court concerning the relationship between the

2

principles set forth in Van Dusen v. Barrack, 376 US. 612

(1964), and the doctrine of forum non conveniens. Respond-

ent is the personal representative of five Scottish citizens killed

in an aircraft accident which occurred on a domestic Scottish

flight. Petitioners are the American manufacturer of the

aircraft and the American manufacturer of one of its com-

ponents. The principal issue presented is the following:

Does this Court’s decision in Van Dusen prevent a federal

court from dismissing an action on forum non conveniens

grounds whenever the American court would apply a law more

favorable to the plaintiff than the law which would be applied

in the jurisdiction where the matter could more conveniently be

heard?

INTEREST OF AMICI CURIAE

Amici curiae are manufacturers of commercial jet aircraft

which are used world-wide. From time to time these aircraft are

involved in accidents in countries other than the United States.

In the past decade, amici curiae have been subjected to an

increasing number of lawsuits brought in the United States

arising out of foreign aircraft accidents. These actions have

been brought by claimants who have sought out or been sought

out by American lawyers and have come to the United States

seeking the more favorable law and more generous awards

available here.

In addition to the burden placed on the American court

system by having these large and complex cases tried here,

these cases are frequently extremely difficult for an American

manufacturer to defend. Much of the critical evidence as to

liability and all of the evidence as to damages is located in a

foreign country and is available to the American manufacturer

either not at all or only after a cumbersome international

discovery process which often requires diplomatic intervention.

Attendance at trial of key foreign witnesses cannot be com-

pelled. In contrast, the American manufacturers, when they

have had actions moved to the convenient foreign forums, have

generally agreed to make their witnesses and documents avail-

able in the foreign court.

3

Although these actions frequently are cast solely as product

liability suits against the manufacturer, such casting is mis-

leading. The airline or others involved in the maintenance,

operation and control of the aircraft are not parties to the

American suit may be due to any of several reasons: they may

not be subject to jurisdiction in the United States; they may

have limited liability by virtue of a treaty or internal statute or

regulation of the foreign country; or, as in this case, an action

against the operator may actually be pending in the foreign

courts. Moreover, American products liability law is such that

the plaintiff may prevail against the manufacturer without

showing that the conduct of the manufacturer was a major

contributing cause of the accident. Joint and several liability

and expanded concepts of product liability for design defects,

failure to warn, and failure to have warning or other safety

devices can create a major exposure for the manufacturer for

what is essentially an operational accident.' If these essentially

“foreign” cases remain in the United States, the manufacturer is

placed in the difficult position of having to defend its product in

a suit to which the other key actors are not parties and the focus

is unfairly placed upon the product. All of these problems can

be avoided by trial in the foreign forum where the participation

of all interested parties can easily be obtained. Thus, the courts

have properly responded to the recent spate of imported

litigation with a number of decisions dismissing these actions on

the basis of forum non conveniens.?

Amici curiae have requested permission to submit this brief

because they believe that the decision of the Court of Appeals,

1 See, e.g., Chart v. General Motors Corp., 80 Wis.2d 91, 258 N.W.2d 680

(1977) (automobile manufacturer only 12 percent at fault required to pay

entire judgment because operator of vehicle was insolvent); Sun Valley

Airlines v. Avco Lycoming Corp., 411 F Supp. 598 (D. Idaho 1976) (operator

90 per cent at fault; manufacturer 10 per cent at fault).

2 See, ¢.g., Pain v. United Technologies Corp., 637 oA erlang

1980); Fosen v. United Technologies Corp., 633 F.2d 203 (2d Cir. 1980);

Dahl vy. United Technologies Corp., 632 F.24 1027 nth ct 1980); Macedo v.

Boeing Co., Civ. Nos. 79-C-2488, 4771, and 4 hgh D. Il. Jan. 11, 1980),

appeal docketed, No. 80-1559 (7th Cir. April 25 ); Orr v. Boeing Co.,

CV-79-526 (C.D. Cal. April 23, 1979), ape docked No. 79-3404 (9th

Cir. July 19, 1979). See also Bouvy-Loggers v. Pan American World Airways,

Inc., 15 Av. Cas. 17,153 (S.D.N.Y. 1978).

4

if affirmed, will emasculate the doctrine of forum non con-

veniens and deprive manufacturers of an important procedural

protection. The Court of Appeals concluded that a federal

court could not dismiss any action on the basis of forum non

conveniens where the dismissal would result in a change in the

applicable law. 630 F.2d at 164. Since plaintiffs rarely choose

to bring suits in a forum which will apply a less favorable law

than another more convenient forum, the doctrine of forum non

conveniens could rarely be invoked. Amici curiae believe that

the rule enunciated by the Court of Appeals is not correct and

should not be followed.

STATEMENT OF THE CASE

Amici curiae will not attempt to set forth herein a detailed

statement of the facts and procedural history. These were

described in detail in the petitions and will, no doubt, be

adequately described in the briefs of the parties. The prior

proceedings and the decisions below will, therefore, be dis-

cussed summarily.

L

COMMENCEMENT OF THE ACTION AND TRANSFER

This action was originally commenced against defendants

Piper Aircraft Company (“Piper”) and Hartzell Propeller, Inc.

(“Hartzell”) in California state court by a person who was

appointed personal representative of the decedents in Califor-

nia but who had no preexisting relationship with the decedents.

The action was removed to the United States District Court for

the Central District of California and defendants then moved to

transfer the action to a federal court in Pennsylvania. The

bases for the motions were that jurisdiction over Hartzell was

lacking in California and that the convenience of parties and

- witnesses and the interests of justice favored trial in Pennsylva-

nia rather than California which had no relationship to the

transaction or the parties. The California federal court agreed

with defendants and ruled that the actions should be trans-

ferred pursuant to 28 U.S.C. § 1404(a) to the Middle District

of Pennsylvania.

5

IL

THE DISTRICT COURT’S DISMISSAL

After transfer, defendants moved, inter alia, to dismiss the

action on the basis of forum non conveniens. The district court

granted the motions and dismissed the action on the condition

that defendants submit to jursidiction in Scotland and waive

any defense based on the statute of limitations. Reyno v. Piper

Aircraft Co., 479 F. Supp. 727 (M.D. Pa. 1979).

In so ruling, the court analyzed the action in terms of the

public and private interest factors set forth by this Court in Gulf

Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and found that they

“overwhelmingly point to dismissal.” 479 F. Supp. at 731.

Among those private interest factors that the court considered

most significant were that “nearly all witnesses needed for the

defense of this suit are located in the British Isles” (id. at 732),

that “all evidence as to damages, both witnesses and docu-

ments, is located in Scotland” (id.), that “the only connection

with [Pennsylvania] is the fact that the plane was manufac-

tured [t]here over seven years before the accident” (id.), that

“(t}he only contact with ... California is that Plaintiff's

attorney and expert reside there” (id.), “(t]he unavailability of

compulsory process to compel the attendance of witnesses

necessary for complete and fair trial” (id. at 733), “[the]

inability to implead parties located in” Scotland (id.), and that

“(familiarity with the topography around Tulla, Scotland and

inspection of the wreckage of the plane would be aided by trial

in the British Isles” (id. at 734).

The district court found that the public interest factors

“even more strongly point to dismissal.” Jd. As recited by the

district court, “[t]hese factors include court congestion, local

interest in the lawsuit, court familiarity with the law that will

govern the action, the avoidance of unnecessary problems and

conflicts of law foreign to the court and the unfairness of

burdening citizens in an unrelated forum with jury duty.” Jd.

With respect to choice of law, the court noted that a trial in

Pennsylvania “would be hopelessly somplex and confusing for

a jury as different laws will apply to different parties.” Jd. The

6

court found that under California conflict of laws applicable to

the claim against Piper, Scottish law applied as to who could

bring an action for wrongful death and Pennsylvania law

applied with respect to the availability of an action based on

strict liability in tort. Jd. at 736. With respect to the claim

against Hartzell, the court concluded that Scottish law applied

to all issues. Jd. at 737. Thus, having determined that Scottish

law would govern part of the action, the court concluded that

“it would be better for all parties for this case to proceed in a

court in Scotland that is at home with the law of that country.”

Id.

The district court also addressed, and rejected, plaintiff's

contention that the action should not be dismissed because the

law of Scotland was not as favorable to her:

That the law of Scotland is not as helpful to the real parties

in interest is not a weighty consideration. We must

determine which forum is proper because of convenience

and the interests of justice and the decision cannot be

correctly made if the amount of a plaintiff's likely award is

given undue weight. Generally, ihe cases that have been

dismissed on the ground of forum non conveniens all

involve situations where a party enters a forum with the

hope of seeking more liberal rules of recovery. If the

foreign law that ought to govern a case does not protect its

citizens as fully as the law of the dismissing forum, that is a

matter to be dealt with in the foreign forum.

Id. at 738.

il.

THE COURT OF APPEALS’ REVERSAL

The Court of Appeals reversed. Reyno v. Piper Aircraft

Co., 630 F.2d 149 (3d Cir. 1980). While the Court of Appeals

disagreed with the district court on several points, the most

significant difference, and the principal reason for the reversal,

was with respect to the governing law. As noted, the district

court had concluded that because Scottish law would apply to

7

at least some issues were the action to remain in Pennsylvania,

and because there were difficulties associated with the appli-

cation of different laws to the claims against the different

defendants, the public interest favored dismissal of the action.

The Court of Appeals, while apparently not disagreeing with

the district court that Scottish law might apply to some issues,?

concluded, contrary to the district court’s analysis, that the strict

liability law of Ohio would apply to the claim against Hartzell.

630 F.2d at 169-171 and especially n. 95. The court further

concluded that because a Scottish court would not apply

American strict liability law, dismissal on the basis of forum

non conveniens wis inappropriate: “[A] dismissal for forum

non conveniens, like a statutory transfer, ‘should not, despite its

convenience, result in a change in the applicable law.””

Id. at 164.

SUMMARY OF ARGUMENT

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

Court held that the decision to grant or deny a motion to

dismiss an action on the ground of forum non conveniens is

entrusted to the sound discretion of the trial judge, who must

consider a aumber of factors, no one of which is necessarily

3 The Court of Appeals’ opinion is difficult to follow on this point. While

the court states that “the negligence and damage limitations law of Scotland”

would not apply (630 F.2d at 171), and that “the district court erred in

concluding that foreign law would govern a substantial part of the case” (id. ),

it leaves open the issue of whether plaintiff had “representative capacity”

without expressly disputing the district court's conclusion that this issue should

be resolved by reference to Scottish law. Furthermore, while the Court of

Appeals speaks of “damage limitations,” there is no indication in the record

that Scotland has any damage limitations as such. While the elements of

recovery or the class of persons entitled to benefit from the award may be

more restricted in Scotland, a long line of decisions has found that the law of

the decedents’ and beneficiaries’ domicile has the greatest interest in these

matters. See, ¢.g., Junco v. Eastern Air Lines, Inc., 399 F.Supp. 666

(S.D.N.Y. 1975), aff'd, 538 F.2d 310 (2d Cir. 1976); Gordon v. Eastern Air

Lines, Inc., 391 F. Supp. 31 (S.D.N.Y. 1975); Bouvy-Loggers v. Pan

American World Airways, Inc., 15 Av. Cas. 17,153 (S.D.N.Y. 1978); Griffith

v. United Air Lines, 416 Pa.i, 203 A.2d 796 (1964). Cf. In re Air Crash

Disaster near Chicago, Illinois, on May 25, 1979, 500 F. Supp. 1044, 1047-

1048 (N.D. Ill. 1980), rev'd on other grounds, 16 Av. Cas. 17,122 (7th Cir.

Jan. 5, 1981) (“[C]ompensatory damages probably are to be governed by

the law of the domicile of the plaintiffs or their decedents.”)

determinative. Previously, in Canada Malting Co., Lid. v.

Paterson Steamships, Lid., 285 U.S. 413 (1932), this Court had

held that a dismissal on the basis of forum non conveniens may

be entered even though the more convenient alternative forum

will apply a law less favorable to the plaintiff. In spite of these

precedents, the Court of Appeals in this case held that this

Court’s decision in Van Dusen v. Barrack, 376 U.S. 612 (1964),

precludes a federal district court from dismissing an action on

the basis of forum non conveniens whenever the more con-

venient forum will apply a law less favorable to the plaintiff.

By so ruling, the Court of Appeals created an exception to the

forum non conveniens doctrine so large that the doctrine itself is

swallowed. Thus, at issue in this case is the continued existence

in the federal courts of the doctrine of forum non conveniens.

That the Court of Appeals’ decision will encourage forum

shopping for a favorable law is apparent. Furthermore, the

decision is based on a misunderstanding of the principles

involved in Van Dusen. In Van Dusen, this Court held that in a

diversity action transferred from one federal district court to

another under 28 U.S.C. § 1404(a), the substantive law of the

transferor state should continue to apply. This holding was

based on the Erie doctrine and was intended to assure that the

“accident of federal diversity jurisdiction” did not result in the

application of a different law than would have been applied by

the ‘state courts in the place where the action was filed. The

Court of Appeals in this case turned Van Dusen on its head and

established a rule that will not only leave litigation in inconven-

ient forums and promote rather than deter forum shopping, but

will cause a different result to be reached in federal court than

would have been reached in state court.

Because the decision of the Court of Appeals lacks any

sound precedential or policy basis, it is incorrect and should be

reversed.

9

ARGUMENT

THE COURT OF APPEALS ERRED IN GIVING DECISIVE

WEIGHT TO ITS ASSUMPTION THAT A SCOTTISH

COURT WOULD APPLY A LAW LESS FAVORABLE

TO PLAINTIFF THAN THE LAW WHICH WOULD BE

APPLIED BY AN AMERICAN COURT

The paramount reason for the Court of Appeals’ reversal

of the district court's dismissal of the action was that

the dismissal would work a change in the applicable law so

that plaintiff's strict liability claim would be eliminated

from the case. ...[A] dismissal for forum non con-

veniens, like a statutory transfer, “should not, despite its

convenience, result in a change in the applicable law.”

Only when American law is not applicable, or when the

foreign jurisdiction would, as a matter of its own choice of

law, give the plaintiff the benefit of the claim to which she

is entitled here, would dismissal be justified.

630 F.2d at 163-164 (footnote omitted). This conclusion was

based on the same court’s prior opinion in DeMateos v. Texaco,

Inc., 562 F.2d 895 (3d Cir. 1977), cert. denied, 435 U.S. 904

(1978), which, in turn, was purportedly based on this Court’s

decision in Van Dusen v. Barrack, 376 U.S. 612 (1964).

Amici curiae believe that both DeMateos and the decision

of the Court of Appeals in this case reflect a fundamental

misunderstanding of this Court’s holding in Van Dusen and the

policy reasons for that holding. Van Dusen, like the present

case, arose out of an aircraft accident. However, in Van Dusen,

unlike the present case, the action was originally brought in the

plaintiffs’ and decedents’ home state, which was also the

destination of the flight. There was no element of forum

shopping involved and no suggestion that the actions met the

test for a forum non conveniens dismissal. Rather, the actions

were transferred from one appropriate forum (Pennsylvania)

to another appropriate and more convenient forum ( Massachu-

setts). As this Court noted in Van Dusen, “the most convenient

forum is frequently the place where the cause of action arose.”

10

376 U.S. at 628. The transfers did not involve a forum non

conveniens dismissal but rather were made pursuant to a

federal statute (28 U.S.C. § 1404(a)) which had previously

been construed by this Court “to permit courts to grant transfers

upon a lesser showing of inconvenience.” Norwood v. Kirk-

patrick, 349 U.S. 29, 32 (1955).

In Van Dusen, this Court held that on the facts before it the

transferee court must apply the same law as the transferor court

would have applied, including its choice of law rules. 376 U.S.

at 639. This result was required by the doctrine of Erie R. Co.

v. Tompkins, 304 U.S. 64 (1938). As this Court stated:

We believe, therefore, that both the history and purposes

of § 1404(a) indicate that it should be regarded as a

federal judicial housekeeping measure, dealing with the

placement of litigation in the federal courts and generally

intended, on the basis of convenience and fairness, simply

to authorize a change of courtrooms.

Although we deal here with a congressional statute

apportioning the business of the federal courts, our inter-

pretation of that statute fully accords with and is supported

by the policy underlying Erie R. Co. v. Tompkins, 304 US.

64.... As this Court said in Guaranty Trust Co. v. York,

326 U.S. 99, 109:

“Erie R. Co. v. Tompkins was not an endeavor to

formulate scientific legal terminology. It expressed a

policy that touches vitally the proper distribution of

judicial power between State and federal courts... .

The nub of the policy that underlies Erie R. Co. v.

Tompkins is that for the same transaction the accident

of a suit by a non-resident litigant in a federal court

instead of a State court a block away should not lead

to a substantially different result.”

Applying this analysis to § 1404(a), we should ensure

that the “accident” of federal diversity jurisdiction does not

enable a party to utilize a transfer to achieve a result in

Sederal court which could not have been achieved in the

courts of the State where the action was filed. This purpose

would be defeated in cases such as the present if nonresi-

dent defendants, properly subjected to suit in the transferor

State (Pennsylvania), could invoke § 1404(a) to gain the

benefits of the laws of another jurisdiction (Massachu-

setts). What Erie and the cases following it have sought

was identity or uniformity between federal and state

courts; and the fact that in most instances this could be

achieved by directing federal courts to apply the laws of

the States “in which they sit” should not obscure that, in

applying the same reasoning to § 1404(a), the critical

identity to be maintained is between the federal district

court which decides the case and the courts of the State in

which the action was filed.

376 U.S. at 636-639 (footnotes omitted; emphasis added).

The Van Dusen actions would not have been dismissed on

forum non conveniens grounds by a Pennsylvania state court,

and the plaintiffs in those actions would have been entitled to

have their claims decided by a Pennsylvania state court under

Pennsylvania law, including its conflict of laws rules. Thus,

Erie and its progeny required that the federal courts also apply

Pennsylvania law, including its conflict of laws rules, to the

actions properly filed in Pennsylvania federal court but trans-

ferred pursuant to “a federal statute apportioning the business

of the federal courts.”

The present case is not the same as Van Dusen, however,

and to the extent that the Erie doctrine is relevant to this case, it

supports a result exactly opposite to that reached by the Court

of Appeals here. This suit was brought in California, a

jurisdiction whose only contact with any of the parties or the

transaction at issue was the fact that one of the defendants was

apparently subject to suit there. Thus, California was plaialy an

inconvenient forum and, had the action remained in the

California state courts, a dismissal on the grounds of forum non

conveniens would have been a certainty. See, e.g., Hemmelgarn

v. Boeing Co., 106 Cal. App. 3d 576, 165 Cal. Rptr. 190

(1980); Gould, Inc. v. Health Science, Inc., 54 Cal. App. 3d

687, 126 Cal. Rptr. 726 (1976); Great Northern Ry. Co. v.

Superior Court, 12 Cal. App. 3d 105, 90 Cal. Rptr. 461 (1970).

Moreover, the fact of critical significance to the Court of

Appeals—that the foreign court would not apply a law as

12

favorable to plaintiff as that which the California courts would

apply—would not have prevented the California courts from

dismissing this action on forum non conveniens grounds. In

Hemmelgarn, which like the present case involved an action on

behalf of foreign nationals arising out of a foreign aircraft

accident, the court assumed that a change in the applicable law

might result from the dismissal but dismissed the action

nonetheless:

The difficulty with the present case is that it is not

possible to satisfy all of California’s policy considerations

by retaining the case here and it is equally impossible to

satisfy all those policy considerations by requiring trial in

Canada. In either situation some policy trade-offs are

necessary which the court must consider in the exercise of

its discretion.

Here, accepting plaintiffs’ premise on damages as true,

... and although defendants Rohr and Boeing may not

feel the full sting of damages as computed in accordance

with California law, they nevertheless will feel some sting

from the damages imposed by the Canadian court.

165 Cal. Rptr. at 197.4

4 See also Archibald v. Cinerama Hotels, 15 Cal. 34 853, 544 P.2d 947,

126 Cal. Rptr. 811 (1976). Archibald was a class action against a number of

Hawaii hotels. The trial court dismissed the action on the ground of forum

non conveniens. On appeal plaintiff contended that forum non conveniens

was inapplicable because there was no suitable alternative forum. The basis

for this contention was that Hawaii class action procedures were less

favorable to plaintiff than those of California. The California Supreme Court

rejected this contention, stating:

We do, however, address one argument presented by piaintiff since

its determination would preclude the exercise of any discretion by the

trial court in the matter.

Plaintiff argues that defendants have failed to show the existence of

a suitable alternative forum (see Gulf Oil Co. v. Gilbert, supra, 330 U.S.

501, 506-507, 67 S.Ct. 839, 91 L.Ed. 1055), and consequently that the

trial court lacks the discretion to stay proceedings in California.

Plaintiff's argument rests on a comparison of class action procedures

in California and Hawaii.

sees

Any attempt on our part to predict how Hawaiian courts will resolve

unsettled issues of class action procedure would be purely speculative.

But, contrary to plaintiff’s contention, the existence of unsettled questions

of Hawaiian procedure does not compel the trial court to conclude as a

matter of law that Hawaii is not a suitable alternative forum.

" 15 Cal. 3d at 861-862 (footnote omitted; emphasis added).

13

This review of California law demonstrates that the rule

adopted by the Third Circuit in this case frustrates rather than

furthers the Erie principles which underly Van Dusen. Unlike

Van Dusen, where the effect of continued application of the law

of the transferor forum was that the same law would be applied

by the state and federal forums, in the present case the effect of

a refusal to dismiss the action on the ground of forum non

conveniens is not oniy to leave the action in an inconvenient

forum but to achieve an entirely different result in the federal

court than would have been reached in the state court. This

action would have been dismissed by the California state courts

on the ground of forum non conveniens and plaintiff would

have lost any opportunity to have California choice of law rules

apply.5 Van Dusen does not require the federal courts to reach a

different result. Indeed, the tenor of Van Dusen is precisely the

opposite.

One point should be emphasized. Amici curiae do not

contend that forum non conveniens dismissals in diversity cases

must be resolved by reference to state law. This issue was left

5 This fact also casts doubt the conclusion of both lower courts that

as to the claim against Piper law would necessarily a after a

§ 1404(a) transfer. of te California bane courts would hawe dieaioed tis

action on forum non conveniens —thereby defeating plaintiff's

attempt to invoke California law—Van Dusen does not require a different

result in federal court. This point was expressly recognized by this Court in

Van Dusen:

..» [W]e do not and need not consider whether in all cases § 1404

(a) would require the application of the law of the transferor, as opposed

to the transferee, State. We do not attempt to determine whether, for

example, the same considerations would govern if . . . it was contended

that the transferor State would simply have dismissed the action on the

ground of forum non conveniens.

376 US. at 639-640 (footnotes omitted ).

The Court of Appeals cited one case, In re Air Crash Disaster at Boston,

Mass, 399 F. Supp. 1106, 1121-1122 (D. Mass. 1975), in support of its

position that California law still applied. In Boston, the court concluded that

it would be inappropriate to apply the law of the transferee forum because:

An assumption that a plaintiff, after dismissal, would choose to bring his

action in the transferree forum is plainly unjustified in any case in which

another more favorable forum is open to him.

Id. at 1121.

sislsciea ae Meeaile OF ee desde tees Seer ab ened og tor ond kate

forum less inconvenient than the original choice but with a choice of law rule

more favorable chan the rule followed in the convenient forum to which the

action was transferred.

14

open by this Court in Gulf Oil and Koster v. Lumbermens

Mutual Casualty Co., 330 U.S. 518 (1947), and the lower

federal courts have tended to consider the propriety of such

dismissals a matter of federal law. See e.g., Thomson v.

Palmieri, 355 F.2d 64, 66 (2d Cir. 1966); Szantay v. Beech

Aircraft Corp., 349 F.2d 60, 65 (4th Cir. 1965); Grodinsky v.

Fairchild Industries, Inc., Civ. No. M-80-722 (D.Md. Feb. 3,

1981); Poe v. Marquette Cement Mfg. Co., 376 F. Supp. 1054

(D.Md. 1974); Lapides v. Doner, 248 F. Supp. 883 (E.D.Mich.

1965); Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.

Supp. 433, 442 (S.D.N.Y. 1964). Thus, the absence of a state

law doctrine of forum non conveniens would not preclude a

federal court from dismissing a diversity action on this basis

since many of the factors involved in the decision whether to

grant a forum non conveniens dismissal are matters of federal

concern.® Similarly, it can at least be argued that a federal

court need not dismiss on forum non conveniens grounds a

diversity action which would have been dismissed in state court,

at least to the extent that factors such as court congestion, not

present in a particular federal court but present in state court,

would have been a major reason for the latter’s decision to

dismiss the action, had it been brought there. Cf. Parsons v.

Chesapeake & O.R. Co., 375 U.S. 71, 73 (1963) (federal court

need not transfer under 28 U.S.C. § 1404( a) an action based on

federal law even though state court had dismissed identical

action based on forum non conveniens; Court noted, “there is

nothing to show that the problem in the federal court in

Chicago [of “docket congestion”] is identical . . . to the

problem in the Cook County court system”).

In any event, complicated hypothetical conflicts between

state and federal law need not be resolved here. In the present

case all parties agreed, and the Court of Appeals found, that no

difference exists among California, Pennsylvania and federal

forum non conveniens principles, see 630 F.2d at 158. Thus the

question of what law controls if there is a conflict can be

resolved another day. Under the Gulf Oil factors used by all

® The converse situation, a state court dismissal of a federal claim by

application of the state’s standards for forum non conveniens dismissals, was

approved in Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929).

15

three jurisdictions, problems of foreign law and conflict of laws

have been held to be relevant in two ways to the trial court’s

discretionary decision whether to dismiss a case on forum non

conveniens grounds. First, there is a public interest “in having

the trial . . . in a forum that is at home with the . . . law that

must govern the case, rather than having a court in some other

forum untangle problems in conflict of laws, and in law foreign

to itself.” Gulf Oil, 330 U.S. at 509. Second, the lower federal

courts have not suggested that the new forum must afford

precisely the same protection to a plaintiff as the inconvenient

forum but have held only that the law and procedures which

would be applied by the new forum must not be so devoid of

due process that plaintiff would be deprived of “an adequate

alternative forum.” See, e.g., Shields vy. Mi Ryung Construction

Co., Civ. No. 79-628 (S.D.N.Y. Feb. 21, 1981); Alcoa S.S.

Co., Inc. v. M/V Nordic Regent, 636 F.2d 860, 871-872 (2d Cir.

1980) (en banc).

The public interest in avoiding problems associated with

conflict of laws and application of foreign law strongly supports

the dismissal of this action. The transaction giving rise to this

litigation is centered in Scotland and, as apparently conceded

by all parties and found by both courts, the Scottish courts

would probably apply Scottish law. In contrast, this case

presents to an American court “a classic example of the

wilderness in which courts sometimes find themselves when

searching for solutions to problems arising under the judicial

nightmare known as Conflict of Laws.” Forsyth v. Cessna

Aircraft Co., 520 F.2d 608, 609 (9th Cir. 1975).7 Furthermore,

7 It is difficult to imagine a case which better illustrates how “tangled”

some problems in conflict of laws can be. The district court concluded that

choice of law doctrine required application of Scottish law to

the issue of whether a cause of action in strict products liability existed. The

Court of Appeals disagreed, holding that the Pennsylvania approach to

conflict of laws was similar to the California “interest analysis” approach and

that under “interest analysis” Ohio had an interest in applying strict liability

to its resident manufacturer whereas Scotland had no interest in making it

more difficult for its residents to recover by requiring that they prove

negligence. Thus, there was a threshold dispute among the Pennsylvania

eT

choice iw.

(footnotes continued on following page)

16

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cert. denied, 397 U.S. 904 (1964). He held that the interest of the state

of manufacture was in having its products enter

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trial in Pennsylvania and trial in Scotland is that while strict

liability would be available in Pennsylvania, plaintiff must

prove negligence in order to recover in Scotland. This is hardly

the kind of difference which would deprive the plaintiff of a fair

trial in Scotland. Much more fundamental objections to the

adequacy of the foreign forum were made in Shields and Alcoa

and rejected.

There is no federal rule automatically precluding a forum

non conveniens dismissal merely because the forum in which

the action must be refiled would apply a different law to the

plaintiff's claim. Indeed, this Court has expressly rejected such

a rule. In Canada Malting Co., Ltd. v. Paterson Steamships,

Lid., 285 U.S. 413 (1932), this Court affirmed a dismissal on

forum non conveniens grounds of a suit in admiralty notwith-

standing libellants’ assertion that a Canadian court would, by

application of a different choice of law rule, apply Canadian

law which would not have created joint and several liability in

favor of libellants. Libellants’ assertion as to the content of

Canadian choice of law doctrine was disputed, but this Court

stated:

® Significantly, the plaintiff's allegations here involve primarily defects in

design and inadequate warnings. See 630 F.2d at 154 n.2. In a design defect

or failure to warn case it is doubtful that there should be amp difference

between strict liability and negligence. Certainly there is no difference under

Ohio law which the Court of Appeals held applicable to Hartzell. See Temple

v. Wean United, Inc., 50 Ohio St. 2d 317, 364 N.E.2d 267, 272-273 (1977):

We have thus far discussed appellees’ liability in terms of strict tort

liability. It is, however, apparent that the rule imposing obligation on the

manufacturer or seller to give suitable warning of a dangerous propensity

of a product is a rule fixing a standard of care, and any tort resulting from

the failure to meet this duty is, in essence, a negligent act.

** &

To date, no Ohio case has specifically defined the duties of a

manufacturer relative to product design, but the general rule is that“. .

{i]t is the duty of a manufacturer to use reasonable care under the

circumstances to so design his product as to make it not accident or

foolproof, but safe for the use for which it is intended.” Gosset v. Chrysler

Corp. (C.A.6, 1966), 359 F.2d 84, 87.

The law in other jurisdictions is similar. See ¢.g., Robinson v. Reed-

Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 479, 403 N.E.2d

440, 443, 426 N.Y.S.2d 717, 720 (1980). (“Since no product may be

completely accident proof, the ultimate question in determining whether an

article is defectively designed involves a balancing of the likelihood of harm

against the burden of taking precaution against that harm.”)

We have no occasion to enquire by what law the

rights of the parties are governed, as we are of the opinion

that, under any view of that question, it lay within the

discretion of the District Court to decline to assume

jurisdiction over the controversy.

285 U.S. at 419-420. Accord, Fitzgerald v. Texaco, Inc., 521

F.2d 448 (2d Cir. 1975), cert. denied, 423 U.S. 1052 (1976);

Anglo-American Grain Co. v. The S/T Mina D’Amico, 169 F.

Supp. 908 (E.D. Va. 1959). As the Second Circuit held in

Fitzgerald:

A district court has discretion to dismiss an action

under the doctrine of forum non conveniens, however, even

though the law applicable in the alternative forum may be

less favorable to the plaintiff's chance of recovery. A

contrary holding would emasculate the doctrine, for a

plaintiff rarely chooses to bring an action in a forum,

especially a foreign one, where he is !ess likely to recover.

521 F.2d at 453 (citation omitted).

It is thus apparent that the position taken by the Court of

Appeals in this case concerning the test for a forum non

conveniens dismissal is not supported by Gulf Oil, is contrary to

Canada Malting, and is at odds with, rather than compelled by,

the federalism principles involved in Van Dusen. Indeed, the

rule enunciated by the Third Circuit can only have the effect of

encouraging the sort of forum shopping which occurred here.

To encourage forum shopping by allowing plaintiff to pick his

law at will and hold on to it forever is most definitely not the

public policy this Court sought to promote in Van Dusen.

Indeed, even before Van Dusen was decided, the proper scope

of the Van Dusen principle was analyzed by the Second Circuit

in H.L. Green Co. v. MacMahon, 312 F.2d 650 (2d Cir. 1962),

cert. denied, 372 U.S. 928 (1963). That decision is instructive.

H.L. Green was an action commenced in the Southern

District of New York in which the plaintiff, a New York

corporation, alleged violations of § 10(b) of the Securities

Exchange Act and common law fraud. The defendant moved

to have the action transferred to the Southern District of

Alabama under § 1404(a) and the motion was granted. In its

19

petition to the Second Circuit for a writ of mandamus prohibit-

ing the transfer, plaintiff asserted that the transfer would not be

in the interests of justice, in part because its effect would be that

Alabama law, which was less favorable than New York law,

would be applied to the common law claim. Anticipating Van

Dusen, the Court of Appeals for the Second Circuit refused to

grant the writ noting that, because of Erie, New York law

(including, as to the common law claim, its conflict of laws

rules) should continue to apply. 312 F.2d at 652-653. How-

ever, this Court went to some length to emphasize that when

federalism considerations were put aside a plaintiff does not

have an unfettered right to shop for the most favorable law:

A plaintiff may not resist the transfer of his action to

another district court on the ground that the transferee

court will or may interpret federal law in a manner less

favorable to him. We agree with the Court of Appeals for

the Fourth Circuit that if there is a conflict of views among

circuits, “this presents a matter for consideration by the

Supreme Court on application for certiorari, not for consid-

eration by a district judge on application for transfer * * *.

We have no sympathy with shopping around for forums.”

Clayton v. Warlick, 232 F.2d 699, 706 (4 Cir. 1956); see

Torres v. Walsh, 221 F.2d 319 (2 Cir.), cert. denied, 350

U.S. 836, 76 S.Ct. 72, 100 L.Ed. 746 (1955).

312 F.2d at 652 (emphasis added). Accord, Scheinbart v.

Certain-Teed Products Corp., 367 F. Supp. 707, 710-711

(S.D.N.Y. 1973):

Plaintiff argues that the interests of justice will be

served by trial in New York because the Second Circuit

Court of Appeals, in Rosenfeld v. Black, 445 F.2d ‘1337

(2d Cir. 1971), has held that the Advisers Act prohibits an

investment advisor from profiting by the sale of its fidu-

ciary office. Plaintiff claims that since the law in the Third

Circuit is unclear on this issue, she “should not be required

to litigate her cause [there] and to shoulder the burden of

seeking to establish the standard applied in Rosenfeld in

another jurisdiction.”

20

Plaintiff's argument amounts to mere forum shopping.

The federal courts, and this court in particular, have little

sympathy for forum shopping. ... Plaintiff's obvious

forum shopping merely adds weight to the other consid-

erations favoring transfer.

( Footnotes omitted; emphasis added.) See also In re Pittsburgh

& L.E. R. Co. Securities and Antitrust Litigation, 543 F.2d

1058, 1065 n.19 (3d Cir. 1976); Clayton v. Warlick, 232 F.2d

699, 706 (4th Cir. 1956).

The lesson of these decisions is clear: There is a federal

policy against forum shopping such that when continued appli-

cation of the law of the transferor siate is not required to

effectuate Erie principles, the plaintiff will not be allowed to

hold on to a favorable law for which he has shopped in an

inconvenient forum. In the present case, plaintiff's effort to

avoid dismissal because a slightly less favorable law will be

applied in the more convenient forum is not only contrary to

this federal policy against forum shopping, but is inconsistent

with, rather than compelled by, Erie principles.

CONCLUSION

For the reasons stated, the order of the Court of Appeals

for the Third Circuit reversing the district court’s order dis-

missing this action, with conditions, on the ground of forum non

conveniens should be reversed and the matter remanded to the

Court of Appeals with directions to reinstate the district court’s

order of dismissal.

RESPECTFULLY SUBMITTED this 9th day of May,

1981.

KerrH GERRARD

Joun D. DiLLow

RicHarD C. CoYLe

Perkins, Coie, Stone,

Olsen & Williams

1900 Washington Building

Seattle, Washington 98101

(206) 682-8770

Attorneys for Amicus Curiae

The Boeing Company

21

JOHN E. CAVANAGH

SAMUEL F. PEARCE

JosepH TWOMEY

P.O. Box 551

Burbank, California 91520

(203) 847-6601

Attorneys for Amicus Curiae

Lockheed Corporation

Tuomas C. WALSH '

JOHN J. HENNELLY, Jr.

Bryan, Cave, McPheeters

& McRoberts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

Attorneys for Amicus Curiae

McDonnell Douglas Corporation