# Amicus Brief — Piper Aircraft Co. v. Reyno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1982 - **Citation:** 454 U.S. 235 ## Text 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 i so 2258:2 Bs g22is8 aE ie: 333 ge23% bipigeee? Su gsfis] 3° = PEnEE THI THR sett P23 Eset ) the proper Third that a doctrines of for “interest of , exactly opposite conclusion was v. Douglas Aircraft Co., 332 F.2d 73 (2d cert. denied, 397 U.S. 904 (1964). He held that the interest of the state of manufacture was in having its products enter terms as products manufactured elsewhere: foreign states on the same He 2 : ln g SHE # Hed i? el l ue uy eal yee tieedt AG ee sellin. TE AEH PTH ATE digas nla HAAG as Pa HET Hint 17 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A08. Public record. Not legal advice.