Petition — HARTZELL PROPELLER, INC. v. GAYNELL REYNO (Nos. 80-883, 80-848)

Supreme Court, U.S.

FILED

NOV 25 1980

No.8 0 - 8 83 [acm CLERK

IN THE

Supreme Court of the United States

October Term, 1980

HARTZELL PROPELLER, INC., a Corporation,

PIPER AIRCRAFT COMPANY, a Corporation, and AVCO

LYCOMING ENGINE GROUP, a Division of Avco Corporation

v.

GAYNELL REYNO, as Personal Representative of the Estates of

William Fehilly, Liam Stewart Fehilly, William James

McDougall Storm, David Vincent Moran and Peter Cunning-

ham Scott,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Ronap C, Scotr

KrusEN EvANS AND BYRNE

500 Public Ledger Building

Philadelphia, PA 19106

Telephone (215) 923-4400

Counsel of Record for Petitioner,

Hartzell Propeller, Inc.

STEPHEN C. BAKER

ADRIAN J. GORDON

KrusEN EvANS AND BYRNE

Attorneys for Petitioner,

Hartzell Propeller, Ine.

international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

QUESTIONS PRESENTED

1. Must a motion to dismiss on grounds of forum non

conveniens be denied whenever the law of the alternate

forum is less favorable to recovery than that which would

be applied by the district court?

2. Is the choice of forum of a non-resident alien plain-

tiff entitled to the same weight as that of a citizen or resi-

dent plaintiff in consideration of a motion to dismiss on

grounds of forum non conveniens?

3. Under what circumstances does the determination

of a district court that factors of public interest and fac-

tors of private interest, such as availability of compulsory

process, ease of access to sources of proof, view of the

scene, and ability to implead third parties weigh in favor

of dismissal of an action on grounds of forum non con-

veniens constitute an abuse of discretion?

4, Must a party seeking dismissal of an action on

forum non conveniens grounds identify with particularity

witnesses and the substance of their testimony in order

for the factor of convenience of witnesses to be weighed

in favor of its motion to dismiss? *

1. Parties to the proceeding in the United States Court of

Appeals for the Third Circuit were: Gaynell Reyno, as personal

representative of the Estates of William Fehilly, Liam Stewart

Fehilly, William James McDougall Storm, David Vincent Moran,

and Peter Cunningham Scott; Piper Aircraft Company; and Hartzell

Propeller, Inc.

Petitioner Hartzell Propeller, Inc. has no parent company or

affiliates. Piqua Aircraft Company is a subsidiary of Hartzell Pro-

peller, Inc.

(i)

TABLE OF CONTENTS

STATEMENT OF JURISDICTION ......-sseseeeceeeseeeeeeeees

STATEMENT OF THE CASE .....csscceccccccccccccessecsess

APPENDIX:

Court of Appeals Opinion .......... cee seescceeceecs

Court of Appeals Order Amending Opinion ...........

District Court Memorandum ...........+eeeeeseeeees

Court of Appeals Judgment ...........+eeeeeeeeeeees

Court of Appeals Order Extending Time for Filing

Petition for Rehearing ...........sseeeeeeeeseees

Court of Appeals Order Denying Petition for Rehearing

En Banc ......sseeeeees sccccccccccoccccvccecs

Affidavit of Ronald C. Scott, Reyno v. Piper Aircraft Co.,

479 F. Supp. 727 (M. D. Pa. 1979) .........+.+5

Affidavit of Robert H. Arnold, Dahl v. United Tech-

nologies Corp., 472 F. Supp. 696 (D. Del. 1979)

(without exhibits) ..........cscecccsccccscees

Affidavit of Frode Ringdal, Dahl v. United Technologies

Corp., 472 F. Supp. 696 (D. Del. 1979) ..........

(ii)

ATS

A78

TABLE OF AUTHORITIES

Cases: Page

Abouchalache v. Hilton International Co., 464 F. Supp. 94

CED Ne UTE, wi becceReks Vas eeeansacerbewer’ os 9, 16

Aigner v. Bell Helicopters, Inc., 86 F. R. D. 532 (N. D. Ill.

MEE Chis wektvicchbdcnaereweusepecedewsbe, abaches ss 18

Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 1980

A. M. C, 309 (2d Cir.), cert. denied, — U. S. — (1980) 18

Alegria v. Grand Bassa Tankers, Inc., 337 F. Supp. 401 (S. 2.

a oe ERDAS Pia GT ie AAG 17

Burt v. Isthmus Development Co., 218 F. 2d 353 (5th Cir.),

cert. denied, 349 U. S. 922 (1955) .........ccceeeeees 17

Canada Malting Co. v. Paterson Steamships, 285 U. S. 413

RED Li NGa bcs Neo kien bi'ehda Ws Padacabintghunbawes se’ 15

Dahl v. United Technologies Corp., Nos. 79-2596-9 (3d Cir.

SU NE Ts MOONE, BN Re A CNS shes ch INDedweeaadess 6 8, 24

Danser v. Firestone Tire & Rubber Co., 86 F. R. D. 120

CU Be Sk OOD VeeeN av hea dos ook cusats hath secs 8

Del Monte Corp. v. Everett Steamship Corp., S. A., 402 F.

Supe. B57. CN. DD. Cabs OTS). veiieveicdacddvecsovcees 18

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

cert. denied, 435 U. S. 904 (1978) ............eeeeeee 7,14

Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910 (S. D.

N. Y. 1977), affd, 588 F. 2d 880 (2d Cir. 1978) ....15, 16,24

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

denied, 423 U. S. 1052 (1976) ................ 8, 9, 10, 16, 24

Founding Church of Scientology of Washington, D. C. v.

Verlag, 536 F. 2d 429 (D. C. Cir. 1976) .............. 18, 21

Garis v. Compania Maritima San Basilio, S. A., 386 F. 2d 155

(Bb MS ROOD vce dccvcatccns PEE as ee ee 24

TABLE OF AUTHORITIES (Continued)

Cases (Continued): Page

Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947) ........ 10, 11, 14,

20, 21, 23

Hoffman v. Globerman, 420 F. 2d 423 (3d Cir. 1970) ...... 18

Horovitz v. Renault, Inc., 162 F. Supp. 344 (S. D. N. Y. 1958) 17

Ionescu v. E. F. Hutton & Co. (France) S. A., 465 F. Supp.

139 (S. D. N. Y. 1979), appeal docketed, No. 79-7221

(2d Cir. filed March 28, 1979) ........ceececcceceee 16

J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., 462

FP TED CRAs BUTE oven cd ctadwadesecececstens 11, 17

John Fabick Tractor Co. v. Penelope Shipping Co., 278 F.

Sen. Bon CB, TNs Ss TORT) a vacidbsics'cvepeievtvcess 17

Koster v. Lumbermens Mutual Casualty Co., 330 U. S. 518

EPEE ALORA ae cg gARaKAAUa RASS CRRMEE KaVonecnee-s 14

Koupetoris v. Konkar Intepid Corp., 535 F. 2d 1392 (2d Cir.

SE Mikakicccends ce ckpaubeanaradckpevisiabkne tke 8

Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.

Se Tee CRE GR TIED in Se cnc cbaNevdecdpesdacecees 16

Lee-Hy Paving Corp. v. O’Connor, 439 U. S. 1034 (1978) .. 22

Malka v. E. F. Hutton & Co., Inc., 465 F. Supp. 131 (S. D.

N. Y. 1979), appeal docketed, No. 79-7209 (2d Cir. filed

WEROO SEs SPE oko svi ea WdadieNansdvabuuedecescees 16

Maybruck v. Haim, 290 F; Supp. 721 (S. D. N. ¥. 1968) .... 17

McCarthy v. Canadian National Railways, 322 F. Supp. 1197

Cae MEN EEAD: we cde dec oLeseuedenbsbsisccdsrevec 18

Michell v. General Motors Corp., 439 F. Supp. 24 (N. D.

PMN R Soha husk Wks ah euecinande nee se cusnadavess 18

Mizokami Bros. of Arizona, Inc. v. Baychem Corp., 556 F. 2d

975 (9th Cir. 1977) (per curiam), cert. denied, 434 U. S.

DO RED ius cau kobe nbacuKhis sued’ aaeonemses 17, 18

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

(3d Cir.), cert. denied, 385 U. S. 945 (1966) .......... 18

M/S Bremen v. Zapata Off-Shore Co., 407 U. S. 1907 (1972) 11

Olympic Corp. v. Societe Generale, 462 F. 2d 376 (2d Cir.

WTB) secivccecenr PROT ery TTT Thee pabedveseede 16

TABLE OF AUTHORITIES (Continued)

Cases (Continued): Page

Reavis v. Gulf Oil Corp., 85 F. R. D. 666 (D. Del. 1980) ... 18

Reyno v. Piper Aircraft Co., No. CV-77-3181-IH (C. D. Cal.

Sin: BIO E Sia oo hahha dv adsdcobiesecs 4

Reyno v. Piper Aircraft Co., No. 79-2747 (3d Cir. filed July

24, 1980), rehearing denied (3d Cir. filed August 27,

DET .. wast siatonce cutest 2, 3, 4, 5, 7, 8, 15, 16, 20, 21, 22, 23

Reyno v. Piper Aircraft Co., 479 F. Supp. 727 (M. D. Pa.

1979), rev'd, No. 79-2747 (3d Cir. filed July 24, 1980),

rehearing denied (3d Cir. filed August 27, 1980) ....1,2,4,5

Shepard Niles Crane & Hoist Corp. v. Fiat S.p.A., 84 F. R. D.

SD CW: Ths SE: FD sidan s ecvivciwe denntactacee’ 8, 9,14

Swift & Co. Packers v. Compania Colombiana del Caribe,

Bi, SER UW, B GOR CIOD oiin ickctisceccdiesiessccce 15, 18

Texaco Trinidad, Inc. v. Astro Exito Navegacion, S. A.,

Panama, 437 F. Supp. 331 (S. D. N. Y. 1977) ......... 9, 16

The Belgenland, 114 U. S. 355 (1885) ...........0eeee0e- 20

Thomson v. Palmieri, 355 F. 2d 64 (2d Cir. 1966) ......... 16

Top Form Mills, Inc. v. Sociedad Nationale Industria Ap-

plicazioni Viscosa, 428 F. Supp. 1237 (S. D. N. Y. 1977) 16

Van Dusen v. Barrack, 376 U. S. 612 (1964) ............0. 7,14

Vanity Fair Mills v. T. Eaton Co., 234 F. 2d 633 (2d Cir.),

cert. denied, 352 U. S. 871 (1956) .........0cceeeee: 16

Webb v. Zern, 422 Pa. 424, 290 A. 2d 853 (1966) .......... 7

Williams v. Green Bay & Western Railroad, 326 U. S. 549

PN ian 5 cg ckcaltiiutaice web okuseas cae 20, 21

Xerakis v. Greek Line, Inc., 382 F. Supp. 774 (E. D. Pa.

ss Tiss cinass cbVesunaneucced pacclacaunctont 10, 18

Statutes: Page

25 'U. BC SEMIN) CIBTE) «nn is ooo scien ccc ccccccecce 1

98 U.S. C. §1404(a) (1976) ..........ccecceeeeeees 4,7, 14, 23

TABLE OF AUTHORITIES (Continued)

Authorities:

Address of Peter Martin, Solicitor of the Supreme Court,

London, United Kingdom, “Litigation of Claims Arising

Out of Foreign Aircraft Accidents”, Before the Section on

Insurance, Compensation, and Negligence Law, Com-

mittee on Aviation and Space Law, 1980 Annual Meeting

of the American Bar Association, Honolulu, Hawaii,

OR CET Ter Pere ree

Hollenshead & Conway, An Overview: International Products

Liability, 16 Triau 50 (November, 1980) .............

Kennelly, Transitory Tort Litigation—The Need for Uniform

Rules Pertaining to In Personam Jurisdiction, Forum Non

Conveniens, Choice of Laws, and Comparative Negli-

gence, 22 Tr. L. Gume 422 (1979) ............ee eens

Morley, Forum Non Conveniens—Restraining Long-Arm

. Jurisdiction, 68 Nw. L. Rev. 24 (1973) ...........505.

Orban, Product Liability: A Comparative Legal Restatement

—Foreign National Law and the EEC Directive, 8 Ga.

J. Iner. & Conap. L. S42 (1978) 2... ccc ccc cece ccceaes

TSE Eh te ERNE Worcs cd ebbaviedeodscccsescdns

Ret Oe Be Ny Bs CAFE, Ce ndc coi ceaniescescenibeses

(vi)

12

13

19

19

OPINIONS

The opinion of the United States District Court for

the Middle District of Pennsylvania is reported as: Reyno

v. Piper Aircraft Co., at 479 F. Supp. 727 (1979) (A44).

The opinion of the United States Court of Appeals for

the Third Circuit is unreported to date. (Al)

JURISDICTION

On July 24, 1980, the United States Court of Appeals

for the Third Circuit rendered the judgment which peti-

tioner seeks to have reviewed. On August 7, 1980, that

court granted petitioner's motion for an extension of time

to file petition for rehearing to August 15, 1980. Peti-

tioner’s petition for rehearing before that court en banc

was filed on August 15, 1980. On August 27, 1980, the

United States Court of Appeals for the Third Circuit de-

nied petitioner's petition for rehearing en banc.

The jurisdiction of this Court is invoked pursuant to

28 U. S. C. § 1254(1) (1976).

(1)

2 Petition for Writ of Certiorari

STATEMENT OF THE CASE

On July 27, 1976, a commercial aircraft crashed in

the Scottish highlands, near the town of Talla. The pilot

and all five passengers were killed.

The pilot and passengers were all Scottish subjects

and left Scottish survivors.

The aircraft involved in the accident was a seven-

year-old twin-engine Piper PA 23-250 aircraft manufac-

tured by Piper Aircraft Company (Piper), a Pennsyl-

vania corporation. The propellers of the aircraft were

manufactured by Hartzell Propeller Inc. (Hartzell), an

Ohio corporation.

The aircraft was operated by McDonald Aviation,

Ltd., a Scottish air taxi service. It was owned and main-

tained by another Scottish firm, Air Navigation and Trad-

ing, Ltd. Those firms came to own, maintain and operate

the aircraft by some series of transactions unknown to

Hartzell.

Preceding the crash, the aircraft was under the con-

trol of Scottish air traffic control. No eyewitnesses to the

impact have been located. However, a number of investi-

gators and witnesses regarding the background of the

aircraft and of the pilot have been found in the United

Kingdom.’

It was determined in an adversary proceeding in

Edinburgh, at which the estates of the deceased pas-

sengers had the opportunity to present evidence,* that

2. See Affidavit of Ronald C. Scott, Reyno v. Piper Aircraft

Co., 479 F. Supp. 727 (M. D. Pa. 1979), printed infra at pp. A75-77.

3. R. 163. “R” refers to the record appendix filed in the court

of appeals. See Appendices to Appellant's Opening Brief, Reyno

v. Piper Aircraft Co., No. 79-2747 (3d Cir. filed July 24, 1980) re-

hearing denied (3d Cir. filed August 27, 1980).

Petition for Writ of Certiorari 3

the pilot had been flying in violation of his own com-

pany’s flight regulations. The review board found that

the airplane struck the ground in a tailspin and that there

was inadequate evidence to demonstrate any mechanical

failure in the aircraft.

The law of Scotland, while affording decedents’ sur-

vivors avenues of relief, does not now provide for a

claim by the personal representative of the estate of a

decedent, an unlimited claim for damages for wrongful

death, or a claim grounded in strict liability in tort.

Litigation arising from this accident is pending in the

courts of the United Kingdom. An action has been

brought against Piper, Hartzell, Air Navigation and Trad-

ing, Ltd., and McDonald Aviation, Ltd. on behalf of the

estate of the one decedent not a party to the instant case,

the pilot. The survivors of other decedents, repre-

sented herein, have also brought suit against Air Naviga-

tion and Trading, Ltd. and McDonald Aviation, Ltd.

Hartzell and Piper are not parties to that action.

Gaynell Reyno (“Reyno”) of California, not a real

party in interest herein, was appointed administratrix of

the estates of the deceased passengers by a California

court. Reyno brought a wrongful death and survival ac-

tion in the Superior Court of California on behalf of those

estates against various defendants, including Hartzell and

4. R. 179-181. Talla is located in a mountainous area of

Scotland. The pilot was flying in an area noted for “mountain

waves.” “Mountain waves” are areas of severe turbulence caused

by winds crossing the mountains. The review board found that

the pilot was flying in violation of his company’s regulations re-

specting altitude of flight in such areas. Id.

5. R. 181-82.

6. R. 99-100; Reyno v. Piper Aircraft Co., No. 79-2747 at 26,

30-31, and 37.

4 Petition for Writ of Certiorari

Piper.” The complaint sounded in negligence and strict

liability in tort.

The action was removed to the United States District

Court for the Central District of California by petition in

August, 1977.° Hartzell contended that it was not sub-

ject to the jurisdiction of California courts. It did not

join in the petition for removal.

When the action was recommenced in the District

Court for the Central District of California, Hartzell filed

a motion to dismiss for lack of jurisdiction or, in the al-

ternative and in the event jurisdiction was found to exist,

for transfer pursuant to 28 U. S. C. § 1404(a) (1976).”°

In November, 1977, Piper filed a motion for transfer

pursuant to 28 U. S. C. § 1404(a) (1976).”

On December 21, 1977, the District Court for the Cen-

tral District of California entered an order which granted

the motion of Piper to transfer * and quashed service of

7. R. 1-12. The complaint also named Avco Lycoming Engine

Group, a Division of Avco Corporation (“Avco”), as a defendant.

R. 1-12.

8. R. 1-12.

9. R. 14-20. On November 28, 1977, the District Court for

the Central District of California granted Avco’s motion to dismiss

the actions as to it. Reyno v. Piper Aircraft Co., No. CV-77-3181-IH

(C. D. Cal. Nov. 28, 1977) (order granting motion to dismiss).

10. R. 36-54. The contingent character of Hartzell’s applica-

tion for transfer was clear from the motion and memorandum in

support thereof. See R. 37, 41 and 49. Further, the contingent

character of the application was recognized by the District Court

for the Central District of California, R. 83, the District Court for

the Middle District of Pennsylvania, Reyno v. Piper Aircraft Co.,

479 F. Supp. 729 (M. D. Pa. 1979) and the Court of Appeals for

Te Sees eyne ® Piper Aircraft Co., No. 79-2747, at 3

(3d Cir. 1980).

1l. R. 68-79.

12. R., 84.

Petition for Writ of Certiorari 5

process as to Hartzell."* The district court declined to

dismiss the action as to Hartzell in view of its order trans-

ferring the action to the Middle District of Pennsylvania,

where valid service on Hartzell could be made.“

Following transfer, plaintiff made service of process

on Hartzell in the Middle District of Pennsylvania.

Hartzell filed a motion to dismiss on grounds of forum

non conveniens."* Piper filed a similar motion styled a

request for judgment on the pleadings or summary

judgment.”*

The district court for the Middle District of Pennsyl-

vania granted the motions of Hartzell and Piper and dis-

missed the action on forum non conveniens grounds."

Respondent appealed to the United States Court of

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

court reversed the district court and remanded the ac-

tion."* On August 7, 1980 the court of appeals granted

Hartzell’s motion for an extension of time in which to file

a petition for rehearing to August 15, 1980. Hartzell filed

a petition for rehearing before the court en banc on

August 15, 1980. The court denied that petition on

August 27, 1980. This petition for a writ of certiorari

followed.

13. R. 84.

14. R. 84.

15. R. 93-104.

16. Motion of Defendant Piper Aircraft Co. for Judgment on

the Pleadings or for Summary Judgment, Reyno v. Piper Aircraft

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

17. Reyno v. Piper Aircraft Co., 479 F. Supp. 727 (M. D. Pa.

1979). The dismissal was granted on condition that Hartzell and

Piper submit to personal jurisdiction in Scotland and waive any

Scottish statute of limitations. Id. at 738.

18. Reyno v. Piper Aircraft Co., No. 79-2747 (3d Cir. filed

July 24, 1980), rehearing denied (3d Cir. filed August 27, 1980).

6 Petition for Writ of Certiorari

ARGUMENT

The decision of the court of appeals below, which

conflicts with decisions of this court and other courts of

appeals, is a sweeping transformation and redefinition of

‘the doctrine of forum non conveniens which threatens to

reduce the doctrine to a nullity. This decision concerns a

recurring question of federal civil procedure with signifi-

cant domestic and international economic implications.

In support of its petition for a writ of certiorari peti-

tioner respectfully asserts as follows:

I. The Decision Below Conflicts With the Decision of

Another Court of Appeals as to the Disposition of a

Motion to Dismiss on Forum Non Conveniens Grounds

Where the Law of the Alternate Forum Is Less Favorable

to Recovery, and Presents an Important Question of

Federal Law Which Has Not Been, But Should Be,

Settled by This Court.

In the decision below, the court of appeals reiterated

a position in direct conflict with that of the Court of Ap-

peals for the Second Circuit on a point critical to continued

viability of the doctrine of forum non conveniens.

As noted above, this action against American manu-

facturers is based upon allegations of negligence and strict

liability. It is brought on behalf of the estates of Scottish

decedents in connection with an aircraft accident in Scot-

land. Scottish law does not presently recognize a cause

of action for strict liability in tort.

A question exists as to whether respondent’s case

against Hartzell is governed by the law of Pennsylvania

or Scotland. The district court concluded that Scottish

law, which does not now recognize strict liability, ap-

plied.” The court of appeals disagreed and determined

19. 479 F. Supp. at 736-37.

Petition for Writ of Certiorari 7

that Pennsylvania law, which recognizes strict liability,”

applied.”

So finding, the court of appeals then concluded that

the action could not be dismissed,” as dismissal would

result in a change in applicable law.” The court stated:

Even under the district court’s choice of law anal-

ysis . . . it is apparent that the dismissal would work

a change in the applicable law so that the plaintiff's

strict liability claim would be eliminated from the case

. . » » 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 dis-

missal be justified.*

This position is not a novel development. It reaf-

firms a doctrine previously enunciated by the Court of

Appeals for the Third Circuit.”

20. Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (1966).

21. Reyno v. Piper Aircraft Co., No. 79-2747, at 34-37.

22. Id. at 22-23.

23. Id. at 22. The court observed that the affidavit of Scottish

counsel before the district court indicated that upon a dismissal

and subsequent trial in Scotland, Scotland, under its lex loci delecti

choice of law rule for torts, would apply its own law to the claims.

24. Id. at 22-23.

25. See De Mateos v. Texaco, Inc., 562 F. 2d 895, 899 (3d Cir.

1977), cert. denied, 435 U. S. 904 (1978). The stauce taken in

De Mateos is the result of misapplication of the principle of Van

Dusen v. Barrack, 376 U. S. 612, 626-43 (1964), that a transfer

pursuant to 28 U. S. C. § 1404(a) (1976) should not work a change

in applicable law. The De Mateos panel determined that “[t]hat

principle is no less applicable to a dismissal on forunt non con-

veniens grounds.” 562 F. 2d at 899.

8 Petition for Writ of Certiorari

The De Mateos-Reyno rule directly conflicts with the

position of the Court of Appeals for the Second Circuit.

In Fitzgerald v. Texaco, Inc.,” plaintiffs argued that their

action should not be dismissed on forum non conveniens

grounds, as the law to be applied in the alternate forum

was less attractive to recovery.” The court concluded

that

[a] district court has discretion to dismiss an

action under the doctrine of forum non conveniens

. .. 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 less likely to recover.”

Fitzgerald is the settled law of the Second Circuit.”

25. (Cont'd. )

That language is quoted with approval in the decision below.

Reyno v. Piper Aircraft Co., No. 79-2747, at 22. See also Dahl v.

United Technologies Corp., Nos. 79-2596-9, at 11 (3d Cir. filed

August 7, 1980).

26. 521 F. 2d 448 (2d Cir. 1975), cert. denied, 423 U. S. 1052

(1976).

27. The court summarized plaintiffs’ argument as follows:

Plaintiffs claim that the difference between the interpre-

tation by the English and American courts of general maritime

law might adversely affect their chances of prevailing on the

merits, and that ‘the ends of justice’ require that they be al-

lowed to retain the advantageous interpretations of the law

made by their chosen forum, even if, under all the other

criteria, that forum is an inconvenient one.

521 F. 2d at 452.

28. Id. at 453 (citation omitted).

29. See Koupetoris v. Konkar Intrepid Corp., 535 F. 2d 1392,

1397 n. 22 (2d Cir. 1976); Danser v. Firestone Tire & Rubber Co.,

86 F. R. D. 120, 122 (S. D. N. Y. 1980); Shepard Niles Crane &

Petition for Writ of Certiorari 9

A conflict between the Courts of Appeals for the Sec-

ond and Third Circuits on this issue is momentous. Much

of the litigation of foreign claims involving issues of

forum non conveniens would be expected to occur in those

circuits and the districts of which they are comprised. A

major portion of American maritime commerce takes place

in those circuits. Vast numbers of American manufac-

turers are incorporated in the district of Delaware and/or

maintain their principal place of b"siness in the southern

district of New York. In preparation of this petition

counsel for petitioner examined eighty-seven decisions in-

volving the doctrine of forum non conveniens. Fifty-

nine of those decisions (or approximately sixty-eight per-

cent) were rendered by courts of appeals or district

courts within the Second and Third circuits.”

29. (Cont'd. )

Hoist Corp. v. Fiat S.p.A., 84 F. R. D. 299, 306 (W. D. N. Y. 1979),

quoting Fitzgerald, supra n. 26, at 453; Abouchalache v. Hilton

International Co., 464 F. Supp. 94, 94 (S. D. N. Y. 1978), quoting

Fitzgerald, supra n. 26, at 453; Texaco Trinidad, Inc. v. Astro Exito

Navegacion, S. A., Panama, 437 F. Supp. 331, 334 (S. D. N. Y.

1977), quoting Fitzgerald, supra n. 26, at. 453. Texaco Trinidad

presents an excellent example of application of the Fitzgerald rule.

There, plaintiffs potential recovery in the action in the American

forum was $5,000,000. The district court dismissed the action

despite the fact that plaintiffs recovery would be limited to

$710,000 under the law to be applied in the alternative foreign

forum. 437 F. Supp. at 333-34.

30. The geographical breakdown of decisions consulted is as

follows: First Circuit—one (or one percent); Second Circuit—

forty-six (or fifty-three percent); Third Circuit—thirteen (or fifteen

percent); Fourth Circuit—four (or five percent); Fifth Circuit—

six (or seven percent); Sixth Circuit—one (or one percent); Seventh

Circuit—one (or one percent); Eighth Circuit—five (or six per-

cent); Ninth Circuit—seven (or eight percent); Tenth Circuit—

zero (or zero percent); and District of Columbia Circuit—three

(or three percent).

10 Petition for Writ of Certiorari

A conflict of this magnitude between the two circuits

which most frequently apply and interpret the doctrine

of forum non conveniens will confuse district judges na-

tionwide. It is a serious impediment to uniformity of

federal law.

Furthermore, the decision of the court below threatens

to destroy the viability of the doctrine of forum non con-

veniens. As was aptly observed in Fitzgerald, it is hardly

to be expected that a plaintiff will choose a forum which

will apply law disadvantageous to recovery. Surprisingly,

the decision below creates a danger which one member of

the panel had previously recognized. As then district

judge Higginbotham observed, “we live in an international

community and by definition from the view of certain

interests the laws of some other countries may be more or

less favorable to that special interest. But we are not a

super-court of international jurisdiction ....”" The

instant decision is the realization of Judge Higginbotham’s

fear. A foreign plaintiff unsatisfied with the law of his

own nation may now, by artful forum-shopping, force a

district court to adjudicate a claim with no connection

whatever to that forum.

Thus the decision below repudiates a delicate process

of weighing numerous factors mandated by this Court,”

in favor of a one-dimensional methodology for resolution

of issues of forum non conveniens which elevates a plain-

tiffs choice of forum to a position of supremacy. This

Court and other courts of appeals have assiduously

avoided promulgating inflexible rules for the disposition

of motions to dismiss for forum non conveniens. As

Justice Clark observed, the question of whether to dismiss

on forum non conveniens grounds is “peculiarly one for

the exercise of judgment by those in daily proximity to

31. Xerakis v. Greek Line, Inc., 382 F. Supp. 774, 777 (E. D.

Pa. 1974).

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

Petition for Writ of Certiorari 11

these delicate problems of trial litigation.” * This decision

precludes the exercise of such judgment and, therefore,

consideration of other public and private interests recog-

nized by this Court.“ The effect of the decision below is

a substantial alteration of the doctrine of forum non

conveniens and a significant departure from the standards

established in Gulf Oil Corp. v. Gilbert.”

Further, a practical result of the decision is to estab-

lish the district courts as world courts. By the rule an-

nounced by the court below, a citizen of any nation,

injured anywhere in the world, may seek from an Ameri-

can manufacturer, whose product was allegedly involved

to any extent in the accident, damages measured by an

American standard. If the law of the plaintiffs nation

does not provide avenues or measures of relief deemed

satisfactory to him, he is openly encouraged to litigate in

a United States district court with attractive substantive

law and conflict of laws principles, and is guaranteed that,

no matter how tenuous the connection between the forum

and the case, the case may not be dismissed as incon-

venient. Forum shopping is thus transformed to an art

form.

The decision below also presents troubling questions

regarding the role of the federal courts and American law

in the world. Implicit in the conclusion of the court of

appeals is a belief in some inherent superiority or right-

eousness of American law which justifies its world-wide

application. Such an ethnocentric view was rejected by

this Court in M/S Bremen v. Zapata Off-Shore Co.,®

33. J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd.,

462 F. 2d 998, 1000 (8th Cir. 1972) (Mr. Justice Clark, sitting by

designation ).

34. See Gilbert, supra n. 32.

35. 330 U. S. 501 (1947).

36. 407 U. S. 1907 (1972).

12 Petition for Writ of Certiorari

wherein it was aptly noted that “[w]e cannot have trade

and commerce in world markets and international waters

exclusively on our terms, governed by our laws, and re-

solved in our courts.” *”

Moreover, it is highly questionable whether such

open-ended disbursement of American jurisprudence is

appropriate or necessary. First,

[i]t is by now plain that the sole reason for mak-

ing of claims by foreigners in the United States is

that damage awards are, by and large, higher and

that the contingent fee system enables persons not

otherwise able to meet the cost of litigation in the

United States at no financial risk to themselves. [sic] **

Whether this development and the instant case, which

further encourages such foreign claims, are consistent with

the proper role of the federal courts, should be settled

by this Court.

The conclusion of the court below that the doctrine of

forum non conveniens is confined to cases in which the

law to be applied in the district court is only equally or

less favorable to recovery than that which would be

applied in the courts of plaintiff's own nation will have far-

reaching domestic and international economic implica-

tions. All American manufacturers will be significantly

affected by this decision. In time, the consequences of

the instant case will touch all American consumers.

Strict liability in tort has gained far less acceptance

37. Id. at 1913.

38. Address of Peter Martin, Solicitor of the Supreme Court,

London, United Kingdom, Litigation of Claims Arising Out of

Foreign Aircraft Accidents, Before the Section on Insurance, Com-

pensation, and Negligence Law, Committee on Aviation and Space

Law, 1980 Annual Meeting of the American Bar Association,

Honolulu, Hawaii, August 4, 1980.

Petition for Writ of Certiorari 13

abroad than it has in the United States. Given the status

of products liability law abroad and the rule announced

by the Court below, the result mandated by the decision

below is clear. So long as strict liability is not the law of

a given nation, any citizen or subject of that nation who

brings an action in a district court which applies strict

liability is absolutely insulated from the possibility of a

forum non conveniens dismissal, no matter how incon-

venient litigation in the district court might be. Such,

in fact, was the result in the decision below.

The economic impact of such a rule will be momen-

tous. Under this rule, American manufacturers will be

placed at a tremendous competitive disadvantage vis-a-vis

foreign competitors in both the domestic and foreign

markets. For example, an American manufacturer whose

product is exported to a non-strict liability nation may be

strictly liable before the courts of the United States for

product-related injuries which may occur in the non-strict

liability nation. Yet its foreign competitor will not be so

liable before the courts of its nation for product-related

injuries which may occur there. Inevitably, the dis-

proportionate amounts which must be spent by the

American manufacturer to satisfy judgments constitutes an

increased cost of business and must be reflected in pricing

policy. Just as inevitably, an inequitable upward price

pressure is an erosive influence upon the American man-

ufacturer’s ability to meet its foreign competition in the

domestic and foreign markets. Further, it is elemental

that the manufacturer's increased costs must be passed on

to American consumers.

Ignoring the wise counsel of one district court that

“courts have an obligation to consider the effect on com-

39. See Hollenshead & Conway, An Overview: International

Products Liability, 16 Tran 50 (November, 1980); Orban, Product

Liability: A Comparative Legal Restatement—Foreign National

Law and the EEC Directive, 8 Ga. J. Int. & Comp. L 342 (1978).

14. Petition for Writ of Certiorari

merce of the application of certain traditional legal prin-

ciples to international legal disputes,” *° the court of

appeals rendered the instant opinion without consideration

of its potential for economic damage. Petitioner respect-

fully submits that the court was clearly in error. In any

case, the gravity of the decision renders it appropriate for

consideration by this Court.

This Court’s last thorough consideration of forum non

conveniens came over thirty years ago.“' In light of the

potential impact of the decision below, the reliance upon

a previous decision of this Court‘? to support the De

Mateos-Reyno rule,“ and the length of time since this

Court has spoken, this case presents an important ques-

tion of federal law which has not been, but should be,

settled by this Court.

II. The Decision Below Conflicts in Principle With the

Decisions of This Court, Conflicts With the Decisions of

Other Courts of Appeals, Adds to a General State of

Confusion Among the Lower Federal Courts, and Presents

an Important Question of Federal Law Which Has Not

Been, But Should Be, Settled by This Court: Whether

the Choice of Forum of a Non-Resident Alien Plaintiff Is

Entitled to the Same Weight in Consideration of a Motion

to Dismiss on Grounds of Forum Non Conveniens as That

of a Citizen or Resident Plaintiff.

The court below determined that a defendant’s bur-

den on a motion to dismiss on forum non conveniens

40. Shepard Niles Crane & Hoist Corp., supra n. 29, at 303.

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

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

42. Van Dusen v. Barrack, supra n. 25.

43. See note 25, supra. The application of Van Dusen further

impliedly raises the question of to what extent principles relevant

to transfer pursuant to 28 U. S. C. § 1404(a) are applicable to dis-

position of questions of forum non conveniens.

Petition for Writ of Certiorari 15

grounds is: not affected by whether or not the plaintiff is

an American citizen.“* Thus, the court of appeals in effect

concluded that the choice of forum of a non-resident alien

plaintiff is entitled to the same weight upon consideration

of such a motion as that of a citizen plaintiff. That deci-

sion is the latest addition to a murky body of law which

calls for resolution by this Court.

The decision of the court of appeals conflicts in prin-

ciple with the decision of this Court in Swift & Co. Packers

v. Compania Colombiana del Caribe.“ There this Court

recognized that citizenship of the parties was relevant in

disposition of a motion to dismiss on forum non con-

veniens grounds, noting that “[a]pplication of forum non

conveniens principles to a suit by a United States citizen

against a foreign respondent brings into force con-

siderations very. different from those in suits between

foreigners.” “°

The decision below also conflicts with the position

taken by the Courts of Appeals for the Second, Fifth, and

Eighth Circuits on this question. In Farmanfarmaian v.

Gulf Oil Corp." the court affirmed a district court deci-

sion “* which dismissed on forum non conveniens grounds

44. Reyno v. Piper Aircraft Co., No. 79-2747 at 12-13.

45. 339 U. S. 684 (1950).

46. Id. at 697. The preferred position of the choice of forum

of an American citizen was reflected in this Court’s conclusion that

it was improper under the circumstances here shown to remit

a United States citizen to the courts of a foreign country with-

out assuring the citizen that respondents would appear in those

courts and that security would be given equal to what had

been obtained by attachment in the District Court.

Id, at 697-98. See also Canada Malting Co. v. Paterson Steamships,

285 U. S. 413 (1932).

47; 588 F. 24 880 (2d Cir, 1978).

' 48. Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910 (S. D.

N. Y. 1977), affd, 588 F. 2d 880 (2d Cir. 1978).

16 Petition for Writ of Certiorari

“the claim of a foreign plaintiff, whose choice of forum

should be given less weight than the choice of an Ameri-

can plaintiff... .”* The rule in Farmanfarmaian is

bolstered by other decisions of the Court of Appeals for

the Second Circuit ® and the district courts of which it

is composed indicating citizenship of the parties is to be

considered. |

49. 437 F. Supp. at 927. The district court also stated that the

right of a foreign plaintiff to sue in American courts “is clearly of

lesser magnitude than that of an American citizen.” Id. at 923.

The opinion herein inaccurately stated that the court of ap-

peals in Farmanfarmaian “disapproved” the district court's enuncia-

tion of the application of the forum non conveniens to noncitizens.

Reyno v. Piper Aircraft Co., No. 79-2747 at 13. To the contrary,

Farmanfarmaian held that the district court's characterization has

no application “where . . . a treaty between the United States and

the foreign plaintiffs country allows nationals of both countries

access to each country’s courts on terms no less favorable than

those applicable to nationals of the court’s country.” 588 F. 2d at

882. No such treaty is applicable herein.

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

1980 A. M. C. 309 (2d Cir. 1980), cited by the court below, Reyno

v. Piper Aircraft Co., No. 79-2747, at 13, does not go as far as that

court’s interpretation would suggest. In this respect, Nordic Regent

holds only that a forum non conveniens dismissal may not be

denied strictly because the plaintiff is an American citizen.

50. Fitzgerald, supra n. 26, at 451; Leasco Data Processing

Equipment Corp. v. Maxwell, 468 F. 2d 1326, 1344 (2d Cir. 1972);

Olympic Corp. v. Societe Generale, 462 F. 2d 376, 378 (2d Cir.

1972); Thomson v. Palmieri, 355 F. 2d 64, 65 (2d Cir. 1966);

Vanity Fair Mills v. T. Eaton Co., 234 F. 2d 633 (2d Cir.), cert.

denied, 352 U. S. 871 (1956).

51. Ionescu v. E. F. Hutton & Co. (France) S. A., 465 F. Supp.

139, 145 (S. D. N. Y. 1979), appeal docketed, No. 79-7221 (2d Cir.

filed March 28, 1979); Malka ov. E. F. Hutton & Co., Inc., 465 F.

Supp. 131 (S. D. N. Y. 1979), appeal docketed, No. 79-7209 (2d

Cir. filed March 13, 1979); Abouchalache, supra n. 29, at 97;

Texaco Trinidad, supra n. 29, at 333-34; Top Form Mills Inc. v.

Sociedad Nationale Industria Applicazioni Viscosa, 428 F. Supp.

Petition for Writ of Certiorari 17

The decision of the court below also conflicts with

the decision of the Court of Appeals for the Fifth Circuit

in Burt v. Isthmus Development Co.," wherein the court

considered it “inconsistent with the very purpose and func-

tion of the federal courts to hold that one may decline to

hear a case and thereby in effect decree that a citizen must

go to a foreign country to seek redress of an alleged

»” 63

The decision below additionally conflicts in principle

and/or by implication with J. F. Pritchard & Co. v. Dow

Chemical of Canada, Ltd.,* where the court of appeals

for the Eighth Circuit emphasized plaintiffs’ status as

assignee of a foreign corporation in affirming a dismissal

on forum non conveniens

The decision of the court vil is not supported by

the view of the Court of Appeals for the Ninth Circuit in

Mizokami Bros. of Arizona, Inc. v. Baychem Corp.,”

which concluded that American citizenship of the plaintiff,

standing alone, is not sufficient ground for opposition to a

motion to dismiss for forum non conveniens." The fol-

51. (Cont’d.)

1237, 1253 (S. D. N. Y. 1977); Alegria v. Grand Bassa Tankers,

Inc., 337 F. Supp. 401, 403 (S. D. N. Y. 1971); Maybruck ov. Haim,

290 F. Supp. 721, 725 (S. D. N. Y. 1968); John Fabick Tractor Co.

v. Penelope Shipping Co., 278 F. Supp. 182, 183 (S. D. N. Y. 1967);

Horovitz vo. Renault, Inc., 162 F. Supp. 344, 346 (S. D. N. Y. 1958).

52. 218 F. 2d 353 (5th Cir.), cert. denied, 349 U. S. 922

(1955).

53. 218 F. 2d at 357.

54. 462 F. 2d 998 (8th Cir. 1972).

55. Id. at 1002.

56. 556 F. 2d 975 (9th Cir. 1977) (per curiam), cert. denied,

434 U. S. 1085 (1978).

57. 556 F. 2d at 978.

18 Petition for Writ of Certiorari

lowing statement of the court indicates that Mizokami in-

volved a situation far different from that herein:

The plaintiff falls back on its United States citi-

zenship as the sole and only possible basis for suing

defendants in a court of the United States. This is

not enough. In an era of increasing international

commerce, parties who choose to engage in interna-

tional transactions should know that when their

foreign operations lead to litigation they cannot ex-

pect always to bring their foreign opponents into a

United States forum when every reasonable considera-

tion leads to the conclusion that the site of the liti-

gation should be elsewhere.”

Thus, a conflict as to the issue presented exists be-

tween the decision below and the decisions of the Courts

of Appeals for the Second, Fifth, and Eighth Circuits. The

divergence between those decisions, as well as the varied

pronouncements of other federal courts,” indicates the

confusion that accompanies consideration of the question.

Similar disagreement and confusion exists among com-

mentators. One commentator has suggested that forum

58. Id.

59. See Founding Church of Scientology of Washington, D. C.

v. Verlag, 536 F. 2d 429 (D. C. Cir. 1976); Aigner v. Bell Heli-

copters, Inc., 86 F. R. D. 532, 546 (N. D. Ill. 1980); Michell v.

General Motors Corp., 439 F. Supp. 24 (N. D. Ohio 1977); Del

Monte Corp. v. Everett Steamship Corp., 402 F. Supp. 237 (N. D.

Cal. 1973); McCarthy v. Canadian National Railways, 322 F. Supp.

1197 (D. Mass. 1971).

The decision below even conflicts in principle with previous

decisions of the Third Circuit. See Hoffman v. Globerman, 420

F, 2d 423 (3d Cir. 1970); Mobil Tankers Co. v. Mene Grande Oil

Co., 363 F. 2d 611 (3d Cir.), cert. denied, 385 U. S. 945 (1966).

See also Reavis v. Gulf Oil Corp., 85 F. R. D, 666, 670 (D. Del.

1980), citing Swift & Co. Packers, supra n. 45, Xerakis, supra n. 31,

at 776,

Petition for Writ of Certiorari 19

non conveniens should be held inapplicable whenever any

defendant in an action is an American corporation,” an-

other that residence in the United States is just one of the

factors to be weighed in consideration of the doctrine,”

another that no deference is due the American citizenship

of a defendant corporation,” and yet another that it may

be appropriate to grant an American defendant's motion

where the plaintiff is an alien.”

This question is one to which this Court's attention is

deserved. Resolution of the impact of citizenship on

forum non conveniens requires judgment respecting the

role of the federal judiciary which only this Court is

equipped to provide. As one observer noted:

U. S. citizens are entitled to know whether they

may be denied access to a U. S. court merely because

it is deemed to be inconvenient. In view of the con-

fusion among the circuits over such questions, the

Supreme Court could profitably elaborate its views

on an area of the law which it has not addressed

directly in three decades. Considering the volume

of international trade and investment today, such an

effort is long overdue.”

The instant case presents the opportunity for such

essential review.

60. Kennelly, Transitory Tort Litigation—The Need for Uni-

form Rules Pertaining to In Personam Jurisdiction, Forum Non

Conveniens, Choice of Laws, and Comparative Negligence, 22

Tr. L. Gume 422, 465 (1979).

61. Morley, Forum Non Conveniens—Restraining Long-Arm

Jurisdiction, 68 Nw. L. Rev. 24, 42 (1973).

62. 7 Tex. Int. L. J. 513, 515 (1972).

63. 17 Va. J. Int. L. 755, 778 (1977).

64. Id. at 791.

20 Petition for Writ of Certiorari

III. The Decision of the Court Below Conflicts With the

Decisions of This Court as to What Constitutes an Abuse

of Discretion by a District Court in the Determination

to Dismiss an Action on Grounds of Forum Non

Conveniens and Presents an Important Question of

Federal Law Which Has Not Been, But Should Be,

Settled by This Court.

The court below recognized that the standard of re-

view of a district court dismissal on forum non conveniens

grounds is whether the district court abused its discre-

tion.”

The term “abuse of discretion” is not susceptible of

precise definition. However, this Court has developed

general principles to guide courts of appeals in applica-

tion of the proper standard. In The Belgenland,” this

Court quoted with approval the statement that an abuse

of discretion exists where “the judge has exercised his

discretion on wrong principles or that he has acted so

absolutely differently from the view which is held by the

court of appeals, that they are justified in saying he has

exercised it wrongly.” “

In Williams v. Green Bay & Western Railroad,” this

Court determined that an abuse of discretion in resolving

a forum non conveniens motion arises where the district

court fails to consider factors critical to a proper disposi-

tion. The district court herein met its obligation to give

judicious consideration to the factors which must be con-

sidered in connection with a motion to dismiss on forum

65. Reyno vo. Piper Aircraft Co., No. 79-2747, at 14. See Gulf

Oil Corp. v. Gilbert, supra n. 32, at 508.

66. 114 U. S. 355 (1885).

67. Id. at 368.

68. 326 U. S. 549 (1946).

Petition for Writ of Certiorari 21

non conveniens grounds. After enumerating ® those fac-

tors, as were set forth by this Court in Gulf Oil Corp. v.

Gilbert,” the court then gave careful consideration to

each of those factors. Unlike the district court in Williams,

which had ignored important facts, the district court in

the instant case carefully considered both the private and

public interests involved in considering a forum non con-

veniens dismissal. The district court’s analysis was com-

pletely consistent with the requirement, for example, that

it weigh the relative advantages of each forum and not

merely consider the drawbacks of one.”

Due to the district court’s judicious consideration, the

court of appeals could not demonstrate an abuse of dis-

cretion. Instead, that court merely substituted its judg-

ment. For example, the district court found that defend-

ants’ inability to implead third parties would be unfair

and unduly burdensome.” The court of appeals differed —

with the district court and stated:

We therefore conclude that defendants’ inability to

implead other potentially liable parties would in-

deed make litigation here more burdensome, but de-

fendants have not shown that it would also be unfair.

It is properly a factor in their favor on the motion to

dismiss, but it is not as weighty as they contend.”

Such a substitution of judgment was criticized by this

Court in Gulf Oil Corp. v. Gilbert.“ There the district

69. 479 F. 2d 730.

70.. 330 U. S. 508.

71. Founding Church of Scientology, supra n. 59, at 436.

72. 479 F. Supp. 733.

73. Reyno v. Piper Aircraft Co., No. 79-2747 at 20 (emphasis

added).

74, 330 U. S. 511.

22 Petition for Writ of Certiorari

court had dismissed the complaint even though the plain-

tiff assured the court that it would bring all the necessary

witnesses from Virginia to the court in New York.” The

court of appeals reversed, in part based upon its objection

to the district court’s refusal to accept the plaintiff's as-

surances.” In reversing the court of appeals’ decision

that the district court had abused its discretion, this Court

stated that “such matters are for the district court to de-

cide in the exercise of sound discretion.” ™

The district court also determined that the necessity

of a view of the wreckage and accident scene was one

of the factors which pointed to Scotland as the appropri-

ate forum for this litigation.” The court of appeals took

exception to that decision in part because it was “unclear

whether the trial judge in fact ascribed any significant

weight to this element... .”" The court of appeals also

asserted that “the topography of Scotland may, to the

extent relevant, be readily proved by testimony.” ”

Again, the court of appeals substituted its judgment for

the trial court’s judgment." The trial judge considered

75. Id.

76. Id.

Te Be:

78. 479 F. Supp. at 732.

79. Reyno v. Piper Aircraft Co., No. 79-2747 at 20.

80. Id.

81, Moreover, the judgment of the court of appeals is highly

dubiovs. In Lee-Hy Paving Corp. v. O'Connor, 439 U. S. 1034

(1978), Justice Powell, in dissent from a denial of certiorari,

notei that “[i]t is routine procedure for the judge and jury to view

the scene: of the ‘accident, often more than once. Jurors drawn

from the venue of the accident may be better able to understand

testimony pertaining to local conditions and geography.” Id. at

1037 (Powell, J., dissenting) (footnote omitted). Justice Powell

described this factor as “traditionally considered under the doctrine

of forum non conveniens ...” Id. at 1036 (Powell, J., dissenting).

Petition for Writ of Certiorari 23

this element as one of several elements he was required

to evaluate in reaching his decision. Thus the district

court fulfilled its obligations to conduct the analysis re-

quired by Gilbert. The criticism of the court of appeals

amounts to no more than a difference of opinion.

The court of appeals did not establish that the dis-

trict court applied incorrect principles, nor did it estab-

lish outrageous application of otherwise valid authority.

Thus the decision below conflicts with the decisions of

this Court.

The decision below represeuts a significant modifica-

tion of the respective roles of the district courts and

courts of appeals. It allows, in effect, for consideration

de novo in a court of appeals of a matter hitherto en-

trusted to the discretion of a district court. This important

question should be resolved by this Court.

IV. The Decision Below Conflicts With the Decision of

Another Court of Appeals Respecting Whether a Party

Must Identify Witnesses and the Substance of Their

Testimony in Order for the Factor of Convenience of

Witnesses to Be Weighed in Favor of Its Motion to

Dismiss an Action on Grounds of Forum Non Conveniens,

and Presents an Important Question of Federal Law

Which Has Not Been, But Should Be, Settled by This

Court.

The court below held that the factor of convenience

of witnesses cannot be weighed in favor of the forum non

conveniens motion of a party that fails to identify those

witnesses and indicate the substance of their testimony.™

82. Reyno v. Piper Aircraft Co., No. 79-2747 at 16. This hold-

ing is based on the court’s view that the rule for transfer pursuant

to 28 U. S. C. §1404(a) (1976) is applicable in the forum non

conveniens context. Reyno v. Piper Aircraft Co., No. 79-2747,

at 16.

24 Petition for Writ of Certiorari

That determination directly conflicts with the deci-

sion of the Court of Appeals for the Second Circuit in

Fitzgerald v. Texaco, Inc.” It also is in apparent con-

flict with other Second Circuit decisions in which a forum

non conveniens dismissal was affirmed despite no indica-

tion that the identity or testimony of witnesses had been

specified.”

The instant portion of the decision is an aberration.

Petitioner's counsel located no reported decision which

supports the Third Circuit's requirement. Moreover, a

decision rendered © two weeks after this case by the same

circuit, involving the same issues and similar facts, made

no mention of the requirement.”

Moreover, the Reyno rule will have grievous conse-

quences for the doctrine of forum non conveniens. It

should not be overlooked that a motion for dismissal on

grounds of forum non conveniens must be timely made.

An unyielding requirement that a party seeking a forum

non conveniens dismissal must first conduct successful

discovery as to witnesses without benefit of compulsory

process destroys the vitality of the doctrine itself. In-

deed, availability of forum non conveniens would be de-

stroyed in every similar foreign-based situation, except

the rare case where defendant conducted, or could con-

duct, discovery and investigation extensive enough to

identify witnesses and the subjects of their testimony.

83. Fitzgerald, supra n. 26, at 451 n. 3.

84. Farmanfarmaian, supra n. 48, at 924; Garis v. Compania

Maritima San Basilio, S. A., 386 F. 2d 155 (2d Cir. 1967).

85. Dahl v. United Technologies Corp., supra n. 25.

86. Id. The strikingly similar affidavits filed by Hartzell herein

and by defendant in Dahl, which yielded such strikingly dis-

similar results, are printed infra at A75-89.

Petition for Writ of Certiorari 25

The impact of this decision on the vitality of forum

non conveniens is clear. Further, the Reyno requirement

constitutes the sort of departure from established practice

and precedent which should not stand unless sanctioned

by this Court.

CONCLUSION

Hartzell Propeller, Inc. respectfully prays the Court

to issue a writ of to review the judgment of the

United States Co Appeals for the Third Circuit.

Respectfully submitted,

Ronatp C. Scotr

KrusEN Evans AND BYRNE

500 Public Ledger Building

Philadelphia, PA 19106

(215) 923-4400

Counsel of Record for Petitioner,

Hartzell Propeller, Inc.

STEPHEN C. BAKER

ADRIAN J. GoRDON

KRUSEN EVANS AND BYRNE

500 Public Ledger Building

Philadelphia, PA 19106

(215) 923-4400

Attorneys for Petitioner,

Hartzell Propeller, Inc.

Appendix.

Opinion of the United States Court of Appeals for the

Third Circuit, Gaynell Reyno, as Personal Repre-

sentative of the Estate of William Fehilly, Liam

Stewart Fehilly, William James McDougall Storm,

David Vincent Moran, and Peter Cunningham Scott,

Appellant v. Piper Aircraft Company, a Corporation;

Avco Lycoming Engine Group, a Division of Avco

Corporation; Hartzell Propeller, Inc., a Corporation,

Appellees, No. 79-2747, Filed July 24, 1980.

UNITED STATES COURT OF APPEALS

For THE Turrp Cimcuir

No. 79-2747

GAYNELL REYNO, as Personal Representative of the

Estate of William Fehily, Liam Stewart Fehilly,

William James McDougall Storm, David Vincent

Moran, and Peter Cunningham Scott,

Appellant

0.

PIPER AIRCRAFT COMPANY, a corporation; AVCO

LYCOMING ENGINE GROUP, a Division of AVCO

CORPORATION; HARTZELL PROPELLOR, INC.,

a corporation

On APPEAL FroM THE UNITED STATEs Districr Court

FOR THE Mipp.e Districr OF PENNSYLVANIA

C. A. No. 77-1159

(Al)

A2 Court of Appeals Opinion

Argued May 22, 1980

Before: ApAMs, VAN DusEN and HiccINBOTHAM,

Circuit Judges

(Filed July 24, 1980)

DaniEL C. CATHCART

Micuaet D. Moorueap (Argued )

Macana, CaTucart, McCartuy & Pierry

Los Angeles, Cal. 90067

Attorneys for Appellant

Cuares J. McKELvEy,

ANN PEPPERMAN (Argued)

McNERNEY, PAGE, VANDERLIN & HALL

Williamsport, Penna. 17701

Attorneys for Appellee,

Piper Aircraft Corporation

Ronatp C. Scorr (Argued )

KRUSEN EVANS AND BRYNE

Philadelphia, Penna. 19106

Attorneys for Appellee

Hartzell Propeller, Inc.

Opinion of the Court

Apams, Circuit Judge

This is an appeal from a dismissal of a wrongful

death action on grounds of forum non conveniens. The

issues include the factors to be considered in such a dis-

missal, the burden of persuasion on the motion, the scope

of the trial judge’s discretion, and the application of

choice of law rules of California and Pennsylvania.

The event giving rise to this dispute was the crash

of a Piper aircraft in Scotland in July 1976. The plane

was owned by a Scottish air taxi service, the passengers

Court of Appeals Opinion A3

and crew of which were Scottish. All persons aboard

were killed and no witnesses survived the crash. There

are indications, however, that something went wrong with

the left engine for which compensatory action by the

pilot was impossible, was unnecessarily difficult, or was

ineptly handled by the pilot.’ ~

Gaynell Reyno, a California resident and personal

representative of the estates of various Scottish decedents,

sued on their behalf in a California state court. Named as

defendants were Piper Aircraft Corp., a Pennsylvania

corporation that manufactured the aircraft; Avco Lycom-

ing Engine Group, which produced the engine; and

Hartzell Propeller, Inc., an Ohio corporation that built the

propeller. The wrongful death action is based on theories

of strict liability and negligence.’

On motions by Piper and Avco based on diversity of

citizenship, the case was removed from the California

state court to the federal district court in California.

After the removal, Hartzell moved to dismiss for lack of

personal jurisdiction or, in the alternative, to transfer the

case to the Middle District of Pennsylvania under 28

1. Determination of these issues by the ultimate factfinder, of

course, will be dealt with when the merits of the case are reached.

2. Plaintiff contends that the engine mulfunction itself was the

result of a design or manufacturing defect for which Piper is liable.

In addition, the following dangerous and defective conditions in

the aircraft are alleged: (1) inadequacies associated with the left

propeller mechanism that prevented institution of emergency pro-

cedures in the event of engine loss; (2) design and manufacture of

an aircraft incapable of single engine flight with a “windmilling”

propeller; (3) manufacture of an aircraft with improper instru-

ments for maintaining single engine operation; and (4) inaccuracies

and omissions in the Aircraft Owners Handbook and flight manuals

pertaining to emergency procedures and single engine operating

A4 Court of Appeals Opinion

U.S. C. § 1404(a).* Piper moved to dismiss for failure to

state a cause of action or, alternatively, to transfer the

case to the Middle District of Pennsylvania and to strike

the claim for punitive damages. The action was dis-

missed as to Avco with the agreement of plaintiff.

The district court in California entered an order (1)

granting the motion to quash service of process as to

Hartzell on the ground that personal jurisdiction over

Hartzell was neither authorized by California law nor in

accord with due process; and (2) transferring the case to

the Middle District of Pennsylvania pursuant to § 1404(a).

Subsequent to the transfer, Hartzell was validly

served with process in Pennsylvania and then moved to

dismiss the case on the common law ground of forum non

conveniens. Piper filed a similar motion captioned as a

request for judgment on the pleadings or summary judg-

ment. Both motions were accompanied by affidavits. On

the basis of the affidavits, the trial judge granted the

motions to dismiss because of forum non conveniens on

condition that defendants submit to personal jurisdiction

in Scotland and waive any statute of limitations there.

Reyno filed a timely appeal.

In this Court, Reyno raises two major contentions:

(1) The judge erred in not holding defendants equitably

estopped to assert that Scotland was a more appropriate

forum, inasmuch as Piper had maintained in California

that Pennsylvania was the most appropriate forum. (2)

The trial judge abused his discretion in dismissing the

action. Subsidiary, but arguably crucial, to this second

point is the claim that the district judge’s order was based

on a legal error as to whether Scottish or Pennsylvania

law applied to most or all of the case.

3. That section provides: “For the convenience of parties and

witnesses, in the interest of justice, a district court may transfer

any civil action to any other district or division where it might have

been brought.

Court of Appeals Opinion A5

I. THe INTERACTION OF A TRANSFER UNDER § 1404(a), A

SUBSEQUENT Forum Non CoNVENIENS MOTION, AND

THE CONCEPT OF PRECLUSION

Reyno argues that the district court erred in not

considering whether the defendants were equitably es-

topped from moving to dismiss. Essentially, she con-

tends that, by following a successful motion to transfer

the case from California to Pennsylvania with a motion

to dismiss so that the case would have to be filed in Scot-

land, the defendants are trifling with the court and wast-

ing judicial and litigant time and resources.

The district court’s opinion did, however, consider

plaintiff's argument and rejected it, albeit in a somewhat

summary fashion:

No cases are cited in support of that proposition and

we believe that is a sufficient indicator of the merit

of that argument. ... The papers filed concerning

the motion to transfer are, of course, irrelevant to

the question we have decided. They were filed early

on in this proceeding before many of the important

facts of this case were uncovered. Also, Defendants

should not be punished for their failure to file a mo-

tion to dismiss for forum non conveniens first, in-

stead of the motion to transfer. If they would have

filed such a motion we feel sure that the California

district court would have likewise dismissed this

action.‘

The Court of Appeals for the Fifth Circuit has re-

versed the dismissal of an admiralty claim on forum non

conveniens grounds for the reasons now pressed by

Reyno. It declared that the defendant should not be

permitted, after securing a statutory transfer from Lou-

isiana to Georgia, to contend that Georgia was not really

4. 479 F. Supp. at 738.

A6 Court of Appeals Opinion

an appropriate forum; the defendant “may not ‘so trifle

with the judicial process.’” *

Defendants here urge, and the district court seemed

to accept, that they did not take inconsistent positions

before the district court in California and that in Penn-

sylvania. The motion in California, defendants argue,

simply represented that Pennsylvania was a better forum

than California, whereas the present motion contends

that Scotland is better yet. Furthermore, they aver,

any inconsistencies are a result of fuller knowledge of the

relevant facts.

Examination of the motions made by defendants in

California reveals that their prior allegations are indeed

at variance with their present contentions. A statutory

transfer, as well as a common law dismissal, must be

shown to be not only more convenient, but also in the

interest of justice. In meeting that burden, Hartzell as-

serted in California that “the plaintiffs would easily have

their interests herein protected and adjudicated by appli-

cation to the courts located in the State of Pennsylvania,

and in fact such would be overwhelmingly fair to all the

parties herein.”* Similarly, Piper argued that “[t]he pro-

priety of transferring the within action to Pennsylvania

for the convenience of the witnesses appears to overwhelm

other factors, in view of the apparent theories of liability

as against the defendants.” * 2

5. Insurance Co. of North America v. Ozean/Stinnes-Linien,

367 F. 2d 224, 227 (5th Cir. 1966) (quoting Livesay Ind. v. Live-

say Window Co., 202 F. 2d 378, 382 (5th Cir.), cert. denied, 346

U. S. 855 (1953) ).

6. Hartzell’s Memorandum of Points and Authorities in Sup-

port of Motion to Dismiss for Lack of Jurisdiction over the Person

or for Transfer under 28 U. S. C. § 1404(a) at 8. No. CV-77-3181-

IH (C. D. Cal., filed Oct. 11, 1977).

7. Piper's Memorandum of Points and Authorities in Support

of Motion to Transfer under 28 U. S. C. § 1404(a) at 6. No. CV-

77-3181-IH (C. D. Cal., filed Nov. 23, 1977).

Court of Appeals Opinion A7

Both defendants averred that, because the claim

was based on strict liability, virtually all the evidence and

material witnesses as to product and design would be in

Pennsylvania or Ohio.’ Furthermore, they argue that new

facts bearing on forum non conveniens were discovered

after motions were filed in California.

At the time of the transfer motion all facts now al-

leged to be relevant—e.g., where various witness are,

where the crash occurred, where the wreckage was lo-

cated, and who owned the plane—were known. All that

seems new was that a British administrative agency would

investigate and report on the accident and that the de-

cedents’ estates would institute a separate action against

the air taxi service in Scotland. Although these last facts

are indeed relevant to a forum non conveniens motion,

they are hardly surprising or significantly new. What

defendants really are arguing is that the case was not

thoroughly researched before making the transfer motion.

Nevertheless, two factors weigh against an absolute

preclusion to raise a forum non conveniens motion in this

case: (1) The thrust of Hartzell’s motion in the California

court, and the contention accepted by that tribunal, was

lack of personal jurisdiction. Arguably, then, it is not

fair to make Hartzell responsible for proceedings there,

even if it would be fair and proper as against Piper.

8. Hartzell stated in its memorandum that “the records and

employees of the . . . defendants herein are prospective evidence

and witnesses; respectively.” Piper asserted, “Necessarily, it would

seem that all material witnesses on the liability issues reside in

either Pennsylvania or Ohio.” In reply to plaintiffs opposition to

the transfer, Piper argued that the respective employees of Piper

. . . and Hartzell Propeller, who were involved in the design,

manufacture, testing, and assembly of the component parts in ques-

tion, will be material witnesses, but they are located in Pennsyl-

vania and Ohio. It is clear that the convenience of these witnesses

is better served if the within action is pending in the State of Penn-

sylvania than if it is pending in the Central District of California.”

A8 Court of Appeals Opinion

(2) Forum non conveniens entails important considera-

tions of public interest, in addition to those of the private

litigants themselves. If defendants are correct in their

assertion that trial in Pennsylvania would be wnduly

burdensome to the court and the juror community, it

might be self-defeating to raise an absolute barrier to

pleading forum non conveniens. Hence, although a party

who moves for transfer under § 1404(a) will not be

automatically estopped to assert forum non conveniens

after a transfer is accomplished, the fact that a party pre-

viously succeeded in a statutory transfer ought to be

weighed against dismissing for forum non conveniens

and as adding to a defendant's already substantial burden

on the later motion.

II. Forum Non Conventrens DIsMIssAL

The doctrine that an otherwise validly brought claim

may be dismissed because the forum chosen was incon-

venient for trial had its origin in the common law of

Scotland,’ became part of the common law of many

states,”® and has a long history of use in federal admiralty

actions." It was introduced into federal diversity juris-

9. Braucher, The Inconvenient Federal Forum, 60 Harv. L.

Rev. 908, 909-11 (1947). The issue of inconvenient forum as a

question on the merits rather than of jurisdiction may be traced at

least to 1845. See id. at 909 (citing M’Morine v. Cowie, 7 Dunl.

270 (1845) ).

10. See Blair, The Doctrine of Forum Non Conveniens in

Anglo-American Law, 29 Colum. L. Rev. 1 (1929); Braucher, supra

note 9, at 911-12.

11. The doctrine in admiralty is thought to derive from dictum

in Mason v. The Ship Blaireau, 6 U. S. 143, 157, 2 Cranch 240, 264

(1804). See Bickel, The Doctrine of Forum Non Conveniens as

Applied in the Federal Courts in Matters of Admiralty, 35 Cornell

L. Rev. 12, 12 & n. 10 (1949); Braucher, supra note 9, at 920 &

n. 79. But cf. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 505 n. 4

(“The doctrine did not originate in federal but in state courts.”).

Court of Appeals Opinion AQ

diction by Gulf Oil Corp. v. Gilbert” and Koster v.

(American) Lumbermens Mutual Casualty Co.," decided

in 1974.

Simple in enunciation but complex in application,

the principle of the doctrine is “that a court may resist

imposition upon its jurisdiction even when” neither juris-

diction nor venue is defective.'* Forum non conveniens

as a common law doctrine has bee. dormant for purposes

of interstate dismissals within the federal system since the

passage of 28 U. S. C. §1404(a) soon after the two

seminal Supreme Court cases." That statute is similar to

the common law doctrine, but authorizes transfers within

the federal court system with a lesser burden—both sub-

stantively and procedurally—than a motion to dismiss.”

The question whether federal or state law of forum

non conveniens applies in a diversity case was left open

by the Supreme Court and has not definitively been de-

cided by any court of appeals.’” In this case, as in many

12. 330 U. S. 501 (1947).

13. 330 U. S. 518 (1947).

14. Gulf Oil Corp. v. Gilbert, 330 U. S. at 507.

15. 62 Stat. 937 (1948) (codified at 28 U. S. C. § 1404).

16. The statute is a revision rather than just a codification of

forum non conveniens. It permits federal courts to grant transfers

on a lesser showing of inconvenience than is required under the

common law doctrine and there is no need for pleadings or docu-

ments to be refiled in the transferee court. The relevant factors to

be considered, however, are the same. Norwood v. Kirkpatrick,

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

17. The Erie question was a matter in controversy in both

Gilbert and Koster until the cases reached the Supreme Court. In

Gilbert the district court, relying on Weiss v. Routh, 149 F. 2d 193

(2d Cir. 1945), held New York law to apply and dismissed the

action. 62 F. Supp. 291, 294 (S. D. N. Y. 1945). The Court of

Appeals distinguished Weiss, held that federal law controlled, and

reversed the trial judge for abuse of discretion. 153 F. 2d 883, 886

A10 Court of Appeals Opinion

17. (Cont'd. )

(2d Cir. 1946). A separate panel deciding Koster also applied

federal law, but cautiously noted that the result would have been

the same under state law. 153 F. 2d 888, 890 n. 2 (2d Cir. 1946).

In considering the merits of the dismissal, the Supreme Court relied

exclusively on Supreme Court cases, but then avoided discussion

of the Erie problem with the following:

The law of New York as to the discretion of a court to apply

the doctrine of forum non conveniens, and as to the standards

that guide discretion is, so far as here involved, the same as

the federal rule. . . . It would not be profitable, therefore,

to pursue inquiry as to the source from which our rule must

flow.

330 U. S. at 509 (citations to New York cases omitted). In Koster

the Court was equally inscrutable. See 330 U. S. at 529 (“Since

this case is pending in New York and is a diversity case, it is ap-

propriate to observe that the law of New York, if applicable, is to

the same effect as to the considerations to govern forum non

conveniens questions in this class of cases.” )

The Court’s decision not to decide was sharply criticized by

Professor Braucher who observed that it

seems to have been arrived at by something like main force: in

the Koster case it was contrary to the unanimous view of the

circuit judges [that federal law applied], and in the Gilbert

case it was reached only by ignoring the state court decision

most nearly in point, which had been cited with approval by

the New York Court of Appeals. Since the circuit court of

appeals had not regarded the New York law as controlling,

previous decisions suggest that if New York law were held to

govern, the normal practice of the Supreme Court would be to

remit the case to the lower court to determine that law.!**

123. Wertheim v. Clergue, 53 App. Div. 122, 65 N. Y. Supp.

750 (1st Dep't 1900); see Gregonis v. Philadelphia & R. C. & I.

Co., 235 N. Y. 152, 139 N, E. 223, 225 (1923). The Wertheim

case reversed dismissal of an action based upon false repre-

sentations in the inducement and performance of a contract on

the ground there was no discretion in “cases arising out of

commercial transactions and affecting property.” 53 App. Div.

at 126, 65 N. Y. Supp. at 753. The Supreme Court relied on

Court of Appeals Opinion All

brought before the federal courts, federal law has been

argued at all stages in the litigation."* Upon specific re-

quest for supplementary briefing in this Court, all three

parties agree that if a choice is necessary, federal law

should be followed, and cite numerous district court

opinions and commentaries in support of that position.”

17. (Cont'd. )

New York cases containing general statements that there is

discretion to dismiss tort actions.

Braucher, supra note 9, at 928 (footnotes 122 and 124 omitted).

Since the Gilbert and Koster cases, the Second Circuit has altered

its position to indicate that the Erie question is an open one. See

Thomson v. Palmieri, 355 F. 2d 64, 66-67 (2d Cir. 1966).

18. See Founding Church of Scientology v. Verlag, 536 F. 2d

429, 434 n. 13 (D. C. Cir. 1976) (“Although the issue has never

been squarely addressed by this Court, federal courts in the District

[of Columbia] have in practice used the federal law of forum non

conveniens.” )

19. A footnote in Koster addressing the question whether fed-

eral courts have discretion to decline granted jurisdiction strongly

points, along with the structure of the Court's reasoning in both

Gilbert and Koster, toward use of federal rather than state law.

Some of our cases appear to hold broadly that the federal

courts must exercise their jurisdiction when they have it. [cit-

ing cases]. But this is not a case in which it is urged that a

state statute restricting remedy to state proceedings defeats

federal diversity jurisdiciton, as [those cases] were... . In

those cases, the Court held that when a state recognizes a

cause of action, suit may be brought on it in federal court if

diversity jurisdiction is established. That holding has nothing

to do with this case. We are concerned here with the autono-

mous administration of the federal courts in the discharge of

their own judicial duties, subject of course to the control of

Congress.

330 U. S. at 520 n. 1 (emphasis added). Moreover, in Parsons v.

Chesapeake & O. R. Co., 375 U. S. 71, 73 (1963), which was not a

diversity case, the Court held that “a prior state court dismissal on

Al2 Court of Appeals Opinion

They assert, nevertheless, that it is probably not necessary

to decide between federal and state law because the cases

dealing with forum non conveniens in both California and

Pennsylvania have mirrored federal law in all essential

respects. We agree.”

19. (Cont'd. )

the ground of forum non conveniens can never serve to divest a

federal district judge of the discretionary power [to transfer a case

under § 1404(a)].” Virtually all the district courts and commen-

tators that have squarely faced the issue have decid: d to apply

federal law. See, e.g., Poe v. Marquett Cement Manuf. Co., 376

F. Supp. 1054, 1057-59 (D. Md. 1974); Lapides v. Doner, 248 F.

Supp. 883, 885-94 (E. D. Mich. 1965); Shulman v. Compagnie

Generale Transatlantique, 152 F. Supp. 833, 834-36 (S. D. N. Y.

1957); 1A (pt. 2) Moore’s Federal Practice [0.317[2], at 3232-33

(2d ed. 1978); 15 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure § 3828, at 181 & n. 19 (1976).

20. Opinions of the Pennsylvania Supreme Court have adopted

almost verbatim the factors to be considered that are set out in

Gilbert's and Koster, scope of trial court discretion, and standard of

appellate review. See Rini v. N. Y. Central R. Co., 429 Pa. 235,

240 A. 2d 372 (1968); Plum v. Tampax, Inc., 399 Pa. 553, 160 A. 2d

549 (1960). The section of the Restatement regarding forum non

conveniens, on which the Pennsylvania courts also rely, in turn

relies on the major federal cases. See Restatement (2d) Conflict of

Laws § 84 note (1971). California’s forum non conveniens doctrine,

formerly of common law origin, is now statutorily codified at Cal.

Civ. Proc. Code § 410.30. Archibald v. Cinerama Hotels, 15 Cal.

3d 853, 858, 544 P. 2d 947, 950, 126 Cal. Rptr. 811, 814 (1976).

California law precludes, except in extra ordinary cases, a wial

court from dismissing on forum non conveniens grounds an action

brought, as in this case, by a California resident. Id. at 859, 126,

544 P. 2d at 950, Cal. Rptr. at 814. An exception to this limitation

is made where, also as here, a California resident sues in a repre-

sentative capacity for foreign beneficiaries. See id. at 860 & n. 6,

544 P. 2d at 951 & n. 6, 126 Cal. Rptr. at 815 & n. 6. In all respects

relevant to this case, then, we find no dissimilarities in the factors

considered under federal and California law. Cf. Jagger v. Superior

Court, 96 Cal. App. 3d 579, 585-87, 158 Cal. Rptr. 163, 166 (1979)

Court of Appeals Opinion A13

A. Comparative Burdens, Trial Court Discretion,

and Standard of Review

A plaintiff is generally conceded the choice of forum

as long as the requirements of personal and subject matter

jurisdiction, as well as venue, are satisfied. He should

not be deprived of the advantages presumed to come

from that choice unless the defendant clearly shows facts

that “either (1) establish such oppressiveness and vexation

to a defendant as to be out of all proportion to plaintiffs

convenience .. . or (2) make trial in the chosen forum

inappropriate because of considerations affecting the

court’s own administrative and legal problems.” ** A court

must balance these private and public interest factors,

“[b]ut unless the balance is strongly in favor of the de-

fendant, the plaintiffs choice of forum should rarely be

disturbed.” *

The district judge believed that the plaintiff's choice

of forum is of diminished significance, and the defendants’

burden of showing inconvenience correspondingly less,

when the plaintiff—more precisely, the real parties in

interest—is foreign or when the forum chosen is not the

plaintiff's home ground.” Neither of these burden-shift-

ing principles may be found in opinions of the Supreme

Court or this Court.

20. (Cont’d.)

(outlining California law in manner essentially following Gilbert

and Koster; concluding that satisfaction in divorce action between

foreign celebrities should be deferred to English courts).

21. Koster, 330 U. S. at 524.

22. Gilbert, 330 U. S. at 508; see Schertenleib v. Fraum, 589

F. 2d 1156, 1164 (2d Cir. 1978) (“We begin by noting that plaintiff

chose this forum and defendant resides here. This weighs heavily

against dismissal.”); Hoffman v. Goberman, 420 F. 2d 423, 426-27

(3d Cir. 1970).

23. 479 F. Supp. at 731.

Al4 Court of Appeals Opinion

In support of the proposition that less solicitude is

due a foreign plaintiff's choice of forum, the district court

relied on a decision of the District Court for the Southern

District of New York which stated that a foreign plaintiff's

“choice of forum should be given less weight than the

choice of an American plaintiff.” ** The court of appeals

affirmed the judgment in that case, but disapproved of the

district court’s characterization of the forum non con-

veniens doctrine applicable to noncitizens.” Indeed, as

the Court of Appeals for the Second Circuit has recently

held, the citizenship of the plaintiff does not affect the

defendant’s burden under Gilbert and Koster. American

citizenship of the plaintiff does not increase the defend-

ant’s burden, just as foreign citizenship may not lessen it.”

The holding by the trial judge that a plaintiff's choice

is entitled to less weight when it is not the plaintiff's state

of residency is somewhat difficult to follow when, as here,

that party has already been forced to cede the “home court

advantage” as a result of the defendants’ previous motion

to transfer the case from California to Pennsylvania.” It

24, Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 927

(S. D. N. Y. 1977), affd on other grounds, 588 F. 2d 880 (2d Cir.

1978).

25. See Farmanfarmaian v. Gulf Oil Corp., 588 F. 2d 880, 882

(2d Cir. 1978).

26. Alcoa Steamship Co., Inc. v. M/V Nordic Regent, No.

78-7054, slip op. at 5060-68, 5973 (2d Cir. Feb. 25, 1980) (en banc).

The court of appeals en banc thus seems to have overturned with-

out specific mention the panel holding in Olympic Corp. v. Societe

Generale, 462 F. 2d 376, 378 (2d Cir. 1972), that the defendant's

burden is greater if an American plaintiff is to be relegated to a

foreign forum. The Olympic Corp. opinion was also relied on by

the district court here.

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

445, 453 (D. Del. 1978). The district court relied on Fitzgerald v.

Texaco, Inc., 521 F. 2d 448, 451 (2d Cir. 1975), cert. denied, 423

Court of Appeals Opinion Al5

would be the rare situation in which a defendant could

complain of being vexed or harassed by defending a law-

suit on his home ground.

Of course, the Supreme Court has stated that “[t]he

doctrine [of forum non conveniens] leaves much to the

discretion of the court to which plaintiff resorts,” but this

broad proposition was followed by the explanatory ob-

servation that “experience has not shown a judicial tend-

ency to renounce one’s own jurisdiction so strong as to

result in many abuses.” ** The standard of review is one

of abuse of discretion,” but if the trial court has not held

the defendants to their proper burden or has clearly

erred in weighing the factors to be considered, the

equivalent of an abuse of discretion has been demon-

strated. Discretion must be exercised within the applica-

ble standards.” The district court’s wide discretion may

27. (Cont'd. )

U. S. 1052 (1976), which may have relied too literally on Koster's

mention of deference to a plaintiffs choice of his home forum in

setting forth the defendant’s burden of establishing inconvenience.

See 330 U. S. at 524. It is apparent that the Koster court was

simply setting forth the proposition that, as between diverse citizens,

convenience of a particular forum to one party will almost in-

evitably mean inconvenience to the other. Given this trade-off, the

plaintiffs choice will generally be respected.

28. Gilbert, 330 U. S. at 508.

29. DeMateos v. Texaco, Inc., 562 F. 2d 895, 897 (3d Cir.

1977), cert. denied, 435 U. S. 904 (1978).

30. Cf. Founding Church of Scientology v. Verlag, 536 F. 2d

429, 436 (D. C. Cir. 1976) (“Where, as here, there has been no

weighing of the relative advantages of each forum but only a con-

sideration of the drawbacks of one, that discretion has been

abused.”). By way of analogoy, it appears appropriate to note that

on appeal from the grant of a preliminary injunction, “The standard

of appellate review is simply whether the issuance of the injunction,

in the light of the applicable standard, constituted an abuse of

Al6 Court of Appeals Opinion

not serve the defendants as a burden-shifting device on

appeal from an order in their favor.

B. The Applicable Factors

The Gilbert Court divided the elements to be con-

sidered into those affecting the private interests of the

litigants and those in which the public has an interest.

The former include

the relative ease of access to sources of proof; avail-

ability of compulsory process for attendance of un-

willing, and the cost of obtaining attendance of will-

ing, witnesses; possibility of view of premises, if

view would be appropriate to the action; and all

other practical problems that make trial of a case

easy, expeditious and inexpensive. There may also

be questions as to the enforcibility of a judgment if

one is obtained.”

Also relevant is the inability to implead other parties di-

rectly involved in the controversy.” These various ingre-

dients are weighed to determine the “relative advantages

and obstacles to fair trial.” *

30. (Cont’d.)

discretion.” Doran v. Salem Inn, Inc., 422 U. S. 922, 931-32 (1975)

(emphasis added). Thus, an order for a preliminary injunction

may be reversed if the trial court “commits an obvious error in

applying the law, or makes a serious mistake in considering the

proof.” A. O. Smith Corp. v. FTC, 530 F. 2d 515, 525 (3d Cir.

1976); see Continental Group, Inc. v. Amoco Chemicals Corp., 614

F, 2d 351, 357 (3d Cir. 1980).

31. 330 U. S. at 508.

32. Id. at 511; Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 453

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

33. Id. at 508.

Court of Appeals Opinion Al7

Among the public interest factors are problems of

creating court congestion and imposing jury duty in liti-

gation centers that are removed from the origin of the

controversy, the benefit in a matter of public concern of

holding the trial in a place accessible to the locality, and

the appropriateness of having the trial in a forum that is

familiar with the law governing the case rather than

having a court elsewhere untangle foreign law.™

We will examine each of these factors to determine

whether the defendants met their burden.

C. Private Interests

1. Convenience of Witnesses

If a dismissal is to be premised on the convenience

of witnesses, more than a mere allegation to that effect is

required. The rule for a statutory transfer, which is to be

more readily granted, is no less applicable to a dismissal

for forum non conveniens:

The party seeking the transfer must clearly specify

the key witnesses to be called and must make a gen-

eral statement of what their testimony will cover.

The emphasis must be on this showing rather than

on numbers. One key witness may outweigh a great

number of less important witnesses. If a party has

merely made a general allegation that witnesses will

be necessary, without identifying them and indicat-

ing what their testimony will be the application for

transfer will be denied.”

34. Gilbert, 330 U.S. at 508-09.

35. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure § 3851, at 270-71 (1976); see Marbury-Patillo Construc-

tion Co., Inc. v. Bayside Warehouse Co., 490 F. 2d 155, 158

(5th Cir. 1974); Texas Gulf Sulphur Co. v. Ritter, 371 F. 2d 145,

148 (10th Cir. 1967). This rule has wide authority in the district

Al18 Court of Appeals Opinion

The district court opinion does not discuss the need for

such a showing, but rather merely refers generally to

witnesses as to damages and witnesses as to the potential

supervening negligence of the Scottish air taxi service, all

of whom are in Scotland.® Nor do the defendants direct

us to any affidavits setting forth the requisite specific in-

formation, and our search of the record detects none.

The requirement of specificity would seem more acute in

this case in view of the fact, mentioned above, that in

motions before the district court in California the de-

fendants made the claim, in some sense inconsistent with

the position now taken though perhaps more accurate,

that all witnesses relevant to strict liability or negligence

in manufacturing are in Pennsylvania or Ohio.”

At the least, then, the district court did not have

sufficient information to weigh the convenience of wit-

nesses, and its conclusion that this factor favored de-

fendants appears to be without the requisite foundation.

One further error in discerning the balance of in-

convenience to witnesses deserves mention. The trial

judge stated that the convenience of expert witnesses,

like that of counsel, “is of small importance.” ** No ex-

planation was given for this assertion,” but the theory

35. (Cont'd. )

courts as well. See, e.g., Follansbee Metals Co., Inc., v. John T.

Clark & Son of N. H., Inc., 387 F. Supp. 574, 581 (W. D. Pa. 1974);

Clay v. Overseas Carrier Corp., 61 F. R. D. 325, 331 (E. D. Pa.

1973); Shulof v. Westinghouse Elec. Corp., 402 F. Supp. 1262, 1264

(S. D. N. Y. 1975).

36. 479 F. Supp. at 732.

37. See pp. 5-6 & note 8 supra.

38. 479 F. Supp. at 732.

39. The district court cited Car-Freshner Corp. v. Auto Aid

Mfg. Corp., 438 F. Supp. 82, 85 (N. D. N. Y. 1977), which simply

cites other cases without explaining. The proposition seems to be

Court of Appeals Opinion A19

seems to be either that expert witnesses are fungible or

that their testimony can be introduced effectively by dep-

osition. We agree with the authors of a noted treatise

that this view is unsound.” In this case, as in many

others, the testimony of expert witnesses will be crucial.

Finding the most trustworthy and credible experts is not

often easy, and the advantages of live testimony are not

to be discounted.”

B. Availability of Compulsory Process and Impleader

The defendants’ major factual contention when the

case comes to trial will be that the fatal crash at issue

was caused not by any manufacturing or design defects,

but by pilot error or the negligence of the foreign air taxi

service. Inability to implead foreign third-party defend-

ants was argued vigorously here as a problem with a trial

in this country, and it has, of course, generally been con-

sidered an important consideration favoring a forum non

conveniens dismissal.“* Because there is an action pend-

39. (Cont'd. )

traceable to Nacona Leather Goods Co. v. A. G. Spaudling & Bros.,

Inc., 159 F. Supp. 269, 270-71 (D. Del. 1958), the judge in that

case simply concluded that the inconvenience to plaintiffs expert

in one forum was counter-balanced by the inconvenience to de-

fendant’s expert of trial in the other forum. It was not that the

two were insignificant, but that they cancelled each other out.

40. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 3852, at 275 (1976).

41. Id.; see Lykes Bros. S. S. Co. v. Sugarman, 272 F. 2d 679,

681 (2d Cir. 1959); Berkshire Int'l Corp. v. Alba-Waldensian, Inc.,

352 F. Supp. 831, 834-35 (S. D. N. Y. 1972) (Weinfeld, J.); Medich

v. American Oil Co., 177 F. Supp. 682 (E. D. Pa. 1959) (Biggs, J.,

sitting by designation).

42. See Gilbert, 330 U. S. at 511; Fitzgerald v. Texaco, Inc.,

521 F. 2d 448, 453 (2d Cir. 1975), cert. denied, 423 U. S. 1052

(1976).

A20 Court of Appeals Opinion

ing in Scotland by the decedents’ estates against the ap-

propriate Scottish defendants, which lawsuit Piper and

Hartzell have consented to join as codefendants, defend-

ants argued, and the district court concluded, that it

would be unfair and unduly burdensome for them to be

subjected to both trials. Although the extra burden is

readily apparent, the unfairness is not. The defendants

state their point as follows:

Defendants’ inability to join [the Scottish] parties as

defendants in this case would seriously prejudice

Defendants, through exposure to unnecessary, ‘du-

plicitous litigation, and inconsistent verdicts. If De-

fendants are found liable here, they will be forced

to file an indemnity or contribution action in Scotland

against these parties. In light of the fact that

Pennsylvania and Scottish law differ greatly with re-

spect to products liability, Piper faces the substan-

tial possibility, and great prejudice, of being held

liable on a products liability theory in this case but -

being forced to prove negligence in an indemnity or

contribution action in Scotland. Even if the same

standard of liability is applied in this action and in

an indemnity or contribution action in Scotland, De-

fendants run the substantial risk that different juries

will find different facts and, hence, produce incon-

sistent results.

43. Brief of Appellee Piper at 22. Hartzell's argument on this

point is simply conclusory:

As is reinforced by the plaintiffs survivors action against the

air carrier employing the pilot, the agency owning and main-

taining the airplane and the estate of the pilot in Scotland,

those parties should be joined as defendants and cannot be

joined in the United States but could be joined in the proper

Forum.

Brief of Appellee Hartzell at 13.

Court of Appeals Opinion A21

If the defendants are found liable on strict liability

here but must prove negligence against the air carrier to

obtain indemnity, that is not unfair, but simply the result

reached under the laws of the jurisdictions in which the

two companies reside. The air taxi operates exclusively

in Scotland and plans its operations and expenses ac-

cording to Scottish law. Piper and Hartzell reside in

strict liability jurisdictions, conduct most of their business

in strict liability states, and plan accordingly.

The defendants’ risk of inconsistent verdicts would

only exist if neither Pennsylvania nor Scotland followed

principles of res judicata. Under those principles, any

subsequent verdict for plaintiffs would merge with a pre-

vious favorable judgment or be barred by a prior judg-

ment against the plaintiffs.“ Res judicata is clearly ap-

plicable in American jurisdictions and we may assume,

in the absence of any affidavits or citations of Scottish

law to the contrary, that it is followed in Scotland as well.”

We therefore conclude that defendants’ inability to

implead other potentially liable parties would indeed

make litigation here more burdensome, but defendants

have not shown that it would also be unfair. It is properly

a factor in their favor on the motion to dismiss, but it is

not as weighty as they contend.

2. Desirability of Viewing the Premises

The district court concluded that, to the extent weight

was to be assigned this factor, it favored defendants:

“Familiarity with the topography around Tulla, Scotland

44. See generally Restatement (2d) Judgments $§ 47, 48, 68.1

(Tent. Draft No. 1, March 28, 1973).

45. Defendants submitted affidavits from Scottish counsel only

on’ the following points of Scottish law: (1) choice of law, (2)

damages that may be awarded, (3) statutes of limitations, and (4)

capacity to sue.

A22 Court of Appeals Opinion

and inspection of the wreckage of the plane would be

aided by a trial in the British Isles.” *

It is unclear whether the trial judge in fact ascribed

any significant weight to this element, and still more un-

certain is what benefit a lay jury would obtain from ob-

serving the wreckage in deciding whether the plane

crashed because the engine or propeller were incorrectly

manufactured or the pilot was negligent. Furthermore,

the topography of Scotland may, to the extent relevant,

be readily proved by testimony.

D. The Public Interest

The parties in arguing this case, and the trial judge

in deciding it, have placed the greatest importance on

whether, under the applicable choice of law rules,

American or Scottish law would apply to major aspects

of the claims. The district court concluded that, for the

most part, Pennsylvania law should apply to Piper and

Scottish law to Hartzell.“ Because application of different

laws to the different defendants might confuse the jury,

and because ascertainment of Scottish law would make

the trial more difficult, the necessity of applying foreign

law to a portion of the case was considered the “upper-

most” factor favoring dismissal.**

46. 479 F. Supp. at 734.

47. The trial court opinion stated:

Uppermost in our weighing of these public interest factors is

that a trial in this forum would be hopelessly complex and con-

fusing for a jury as different laws will apply to different parties.

From our review of the applicable choice of law rules, it ap-

pears that Pennsylvania law would apply to Defendant Piper

and that Scottish law would apply to Defendant Hartzell.

479 F. Supp. at 734.

48. See id.

Court of Appeals Opinion A23

As will be discussed below, we conclude that the

district court erred in its choice of law determinations.

But even if the district court were correct in its conclu-

sion that a mixture of Scottish and American law would

be required, dismissal would not have been justified under

this Court’s settled principles of forum non conveniens.

1. The Necessity of Applying Foreign Law

First, we held in Hoffman v. Goberman that “[i]t is

settled that the mere fact that the court is called upon to

determine and apply foreign law does not present a legal

problem of the sort which would justify the dismissal of

a case otherwise properly before the court. The district

court was, therefore, in error in basing its action, in part

at least, on this ground.”* Although there may be cir-

cumstances in which the application of foreign law would

present difficulties sufficient to favor dismissal—because

of difficulties of translation or because the foreign law

itself has principles unknown to our jurisprudence—we

are not faced with such a case here. Negligence prin-

ciples are well-known on this side of the Atlantic and of

course there will be no translation problems in dealing

with Scottish law.

Second, if trial here would confuse the jury because

a different country’s law would apply to each defendant,

that confusion would either not be eliminated by a trial

in Scotland or would be eliminated only by unacceptable

unfairness to the plaintiff. If, as is unlikely, a Scottish

49, 420 F. 2d 423, 427 (3d Cir. 1970) (footnote omitted) (law

of Netherlands Antilles involved); accord Mobil Tankers Co. v.

Mene Grande Oil Co., 363 F. 2d 611, 615 (3d Cir.) (Venezuelan

law), cert. denied, 385 U. S. 945 (1966); Burt v. Isthmus Dev. Co.,

218 F. 2d 353, 357 (5th Cir.), cert. denied, 349 U. S. 922 (1955);

see Founding Church of Scientology v. Verlag, 536 F. 2d 429, 436

(D. C. Cir. 1976) (difficulty in applying German law not sufficient).

50. 420 F. 2d at 427.

A24 Court of Appeals Opinion

court as a “transferee” court would apply the same choice

of law rulings as would the court here, it would have an

equally difficult problem in applying the laws of different

countries to different defendants. Dismissal here would

not eliminate the difficulty, but only shift it to a foreign

forum.

The district court, though, had the affidavit of Scot-

tish counsel that Scotland’s choice of law rule for torts

was to apply the law of the place of injury to all facets of

the case, and therefore Scotland probably would apply

its own law to all claims. Even under the district court's

choice of law analysis, requiring a mixture of American

and Scottish law, it is apparent that the dismissal would

work a change in the applicable law so that the plaintiff's

strict liability claim would be eliminated from the case.

But this Court has held that a dismissal for forum non

conveniens, 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.

2. Choice of Law Rules Under Klaxon and Barrack

As a federal court deciding a case premised on di-

versity jurisdiction, we are required by the Klaxon rule ®

51. De Mateos v. Texaco, Inc., 562 F. 2d 895, 899 (3d Cir.

1977), cert. denied, 435 U. S. 904 (1978). The point is made by

Professor Bickel in terms of fairness to the plaintiff. See, Bickel,

supra note 11, at 28 & n. 68 (because premise of forum non

conveniens is existence of jurisdiction, “a case will be retained

whenever it is not perfectly clear that plaintiff can recover else-

where if the facts he alleges are true”).

52. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487,

496 (1941).

Court of Appeals Opinion A25

to apply the conflicts of law rules of the state in which

we sit. We are not permitted to fashion our own rules,

however more clear or salutory they might seem.” Com-

plicating matters here is that, for purposes of this litiga-

tion and its choice of law problems, we are in effect “sit-

ting” in two different states. Moreover, though not

entirely disinterested, each state is in the position of

choosing between the laws of two other states.

The action against Piper was transferred under

§ 1404(a) from California to Pennsylvania. The law of

the transferor forum—i.e., California’s choice of law rules

—should therefore, under Van Dusen v. Barrack,“ be

applied as to Piper.

53. The Supreme Court reaffirmed Klaxon in strong terms in

Day & Zimmermann, Inc. v. Challoner, 423 U. S. 3, 4 (1975) (per

curiam) (reversing appellate court determination that, as a matter

of federal choice of law, a federal court could not apply the choice

of law rule of the state in which it sat if that jurisdiction had no

policy interest in the case). Thus the Court has, at least for now,

answered scholarly criticism of Klaxon and exhortations that it be

overruled. See, e.g., Baxter, Choice of Law and the Federal Sys-

tem, 16 Stan. L. Rev. 1, 32-42 (1963); Horowitz, Toward a Federal

Common Law of Choice of Law, 14 U.C. L. A. L. Rev. 1191 (1967);

cf. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart &

Wechsler’s The Federal Courts and the Federal System 713-18 (2d

ed. 1973) (making point by rhetorical questions).

54. 376 U. S. 612 (1964). The Barrack rule—that a transfer

should work no change in the applicable law—is a “general” one,

the Court added this qualifier:

[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 at-

tempt to determine whether, for example, the same considera-

tions would govern if a plaintiff sought transfer under § 1404

(a) or if it was contended that the transferor State would

simply have dismissed the action on the ground of forum non

A26 Court of Appeals Opinion

Hartzell’s situation is more complex. The California

district court ruled that personal jurisdiction over

Hartzell was lacking, both under California law and the

Due Process Clause. The court did not dismiss the case

against Hartzel, but rather quashed service of process

and ordered transfer to Pennsylvania along with co-

defendant Piper. Although this Court has held that

transfer under § 1404(a) is proper even though the trans-

feror state lacked personal jurisdiction,” that does not

54. (Cont'd. )

Id. at 639-40 (footnote omitted). Piper does contend that a Cali-

fornia court would have dismissed this action on the ground of

forum non conveniens. This is implicit in its argument that we

should now dismiss the case on that ground and that California

law on this issue is the same as the federal law on which the issue

has generally been argued. Both Piper and Reyno agree, however,

that California’s choice of law rules govern the case as to Piper.

To follow the Court’s caveat would, moreover, be inefficient and

wasteful of judicial resources, for it would require the transferee

court, after the transferor court had granted a 1404(a) transfer, to

examine the transferor State’s law to ascertain whether the de-

fendant should have brought a motion to dismiss rather than to

transfer in the first place. See In re Air Crash Disaster at Boston,

Massachusetts on July 31, 1973, 399 F. Supp. 1106, 1121-22 (D.

Mass. 1975).

55. In Goldlawr, Inc. v. Heiman, 369 U. S. 463, 466 (1962), the

Supreme Court held that transfer for improper venue under 28

U. S. C. § 1406(a) was proper whether or not the court in which

the motion was filed had personal jurisdiction over the defendants.

Cf. Martin v. Stokes, No. 78-3390, slip op. at 5-6 (6th Cir. filed

June 19, 1980) (“following a transfer under § 1406(a), the trans-

feree district court should apply its own state law rather than the

state law of the transferor district court”) (citing cases). This

Court applied Goldlawr by analogy to § 1404(a) and held that if

lack of both venue and personal jurisdiction could not defeat a

transfer, then want of the latter alone could not. United States v.

Berkowitz, 328 F. 2d 358, 361 (3d Cir.), cert. denied, 379 U. S. 821

(1964).

Court of Appeals Opinion A27

resolve the problem whether the Klaxon and Barrack

rules would still require us to apply the choice of laws

rule of the transferor state.

To state the problem is, we believe, to explain why

California’s law may not apply to Hartzell: if California's

exercise of jurisdiction would violate due process, so

would application of that state’s choice of law rules.”

Furthermore, Barrack is not so rigid. The Court there

stated as a general rule of statutory construction of

§ 1404(a) that, to be “in the interest of justice,” a transfer

should not work a change in the applicable law.” We

conclude that this case comes within an exception, the

possibility of which it was noted in Barrack,” to the appli-

cation of the transferor state’s law. As with any other

statute, we must construe § 1404(a) to avoid any consti-

56. See Kirgis, The Roles of Due Process and Full Faith and

Credit in Choice of law, 62 Cornell L. Rev. 94, 103 (1976) (forum

must have reasonable due process basis for applying own law,

which does not exist if party opposing application of forum’s law

has no minimum contacts with forum, the transaction giving rise to

the claim is not connected with the forum, or application of the

forum’s law would otherwise be manifestly unfair).

57. The plaintiff in the Barrack case challenged, by writ of

mandamus, the district court’s order transferring the case from

Pennsylvania to Massachusetts. He contended that the transfer

could not be, as § 1404(a) requires, “in the interest of justice,” be-

cause it was likely to be accompanied by a prejudicial change in

the state law to be applied. 376 U. S. at 626. The district court

had held that transfer could be ordered regardless of the possibility

of a change in law, id. at 626-27, our Court agreed with the plain-

tiff that it could not, see Barrack v. Van Dusen, 309 F. 2d 953 (3d

Cir. 1963), and the Supreme Court, disagreeing with both the trial

and appellate courts, reversed. A transfer would not be unfair, it

held, because “[a] change of venue under § 1404(a) generally

should be, with respect to state law, but a change of courtrooms.”

376 U. S. at 639.

58. See note 54 supra.

A28 Court of Appeals Opinion

tutional problem,” and so hold that when there has been

an interestate transfer without personal jurisdiction, the

transferor state’s choice of law does not apply to that de-

fendant. Because Pennsylvania does have personal juris-

diction, it is that state in which the federal court is located

for the Klaxon purpose of finding the choice of law rules

governing the case as to Hartzell.

Our analysis so far does not differ from that of the

district court, which held that California’s choice of law

rules applied to Piper and Pennsylvania’s rules applied to

Hartzell. The court went on to hold that under Cali-

fornia’s governmental interest approach the Scottish law of

wrongful death would apply to make Reyno an improper

litigant, but Pennsylvania’s law of strict liability rather

than Scotland’s negligence law would govern the theory

of the tort.“ Pennsylvania’s significant contacts ap-

proach was thought to require that Scottish law apply to

all facets of the claim against Hartzell. We must exam-

ine these rulings to determine whether they are erroneous

as a matter of law.

a. California Conflicts Law Applied to Piper

California was a pioneering state in the governmental

interest analysis approach to choice of law that was de-

59. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U. S.

490, 507 (1979).

60. 479 F. Supp. at 734.

61. The district court relied primarily on Reich v. Purcell, 67

Cal. 2d 551, 432 P. 2d 727, 63 Cal. Rptr. 31 (1967); and Hurtado v.

Superior Court, 11 Cal. 3d 574, 522 P. 2d 666, 114 Cal. Rptr. 106

(1974), while mentioning in passing Bernhard v. Harrah's Club, 16

Cal. 3d 313, 546 P. 2d 719, 128 Cal. Rptr. 215, cert. denied, 429

U. S. 859 (1976), 479 F. Supp. at 735-36.

62. See 479 F. Supp. at 736-37 (relying on Griffith v. United

Airlines, 416 Pa. 1, 203 A. 2d 796 (1964); and Lewis v. Chemetron,

448 F. Supp. 211 (W. D. Pa. 1978) ).

Court of Appeals Opinion A29

veloped by Professor Currie.“ In Reich v. Purcell, the

California Supreme Court abandoned the traditional view

that the law of the place of wrong (injury) must be ap-

plied in tort actions regardless of the issues, and estab-

lished in its stead the principle that “[t]he forum must

search to find the proper law to apply based upon the

interests of the litigants and the involved states.” “

Also integral to the holding in Reich v. Purcell was

the introduction into California law of the concept of

“false conflicts.” In Reich, the wrongful death action

arose from an automobile accident that occurred in Mis-

souri between an Ohio plaintiff and a California defend-

ant. Missouri, the state of injury, limited compensation

for wrongful death, but neither California nor Ohio had

any limitation. The California Supreme Court held that

as to the issue of the extent of damages, as opposed to

the standard of conduct on which liability was based,

there was no true conflict in governmental interests.

Since California had no limitation on damages, it had no

63. Professor Brainerd Currie is generally considered to be the

father of modern governmental interest analysis. See Bernhard v.

Harrah's Club, 16 Cal. 3d 313, 546 P. 2d 719, 722, 128 Cal. Rptr.

215, 218, cert. denied, 429 U. S. 859 (1976); Reese, American

Trends in Private International Law: Academic and Judicial Ma-

of Choice of Law Rules in Tort Cases, 33 Vand. L. Rev.

717, 720 (1980); Brilmayer, Interest Analysis and the Myth of Leg-

islative Intent, 78 Mich. L. Rev. 392, 392-93 (1980). Most of his

writing on the subject is collected in B. Currie, Selected Essays on

the Conflict of Laws (1963).

64. 67 Cal. 2d 551, 432 P. 2d 727, 63 Cal. Rptr. 31 (1967).

65. 67 Cal. 2d 553, 432 P. 2d at 729, 63 Cal. Rptr. at 33.

66. The term was not explicitly used in that case, but the

methodology was. See id. at 555-56, 432 P. 2d at 730-31, 63 Cal.

Rptr. at 34-35, Bernhard v. Harrah’s Club, 16 Cal. 3d 313, 546 P. 2d

719, 722, 128 Cal. Rptr. 215, 218, cert. denied, 429 U. S. 859 (1976).

A30 Court of Appeals Opinion

interest in protecting its resident defendant from a higher

recovery. Moreover, the defendant’s California insurance

policy would be calibrated to the potential burdens of

larger claims. Missouri had an interest in the standard

of conduct for behavior within its borders, but its interest

in limiting damages was solely to protect in-state defend-

ants. It had no substantial interest in extending that pro-

tection to defendants from states with no such limitations,

and Ohio, as the state where the decedents’ estates were

probated, did have a substantial interest in unlimited re-

covery. Therefore, Ohio's law as to the damages issue

was applied.”

Subsequent cases indicate a further refinement of the

governmental interest and false conflict methodology

termed a “comparative impairment” approach.” This ap-

proach comes into practice only after a “ ‘preliminary

analysis has identified a true conflict of the government

interests involved.’” Once this preliminary step is satisfied,

the court resolves a true conflict by ““determin[ing] which

state’s interest would be more impaired if its policy were

subordinated to the policy of the other state... . [T]rue

conflicts should be resolved by applying the law of the

67. Reich v. Purcell, 67 Cal. 2d 551, 432 P. 2d 727, 731, 63 Cal.

Rptr. 31, 35 (1967), see Hurtado v. Superior Court, 11 Cal. 3d 574,

581-83, 522 P. 2d 666, 670-71, 114 Cal. Rptr. 106, 110-11 (1974)

(false conflict between plaintiffs’ state’s limitation of damages and

defendant’s state’s allowance of full recovery; full recovery al-

lowed). The false conflicts methodology is also attributable to

Professor Currie, as well as Professor Cavers, see B. Currie, supra

note 62, at 189; D. Cavers, The Choice-of-Law Process 89-90 (1965),

both of whom are extensively cited in Hurtado.

68. Offshore Rental Co., Inc. v. Continental Oil Co., 22 Cal. 3d

157, 165-66, 583 P. 2d 721, 726, 148 Cal. Rptr. 867, 872 (1978);

Bernhard v. Harrah’s Club, 16 Cal. 3d at 321, 546 P. 2d at 723-24,

128 Cal. Rptr. at 219-20 (1976).

Court of Appeals Opinion A31

state whose interest would be the more impaired if its law

were not applied.’” ®

Among the relevant factors to be considered in de-

termining choice of law under California’s comparative

impairment approach are the following:

(1) The status of the law—whether it is to be con-

sidered anachronistic or ascendant in the common law

jurisdictions. “‘If one of the competing laws is archaic

and isolated . . . , it may not unreasonably have to yield

to the more prevalent and progressive law, other factors

of choice being roughly equal.’” ”

(2) Insurance and other planning for risks. Parties

may be expected to plan their activities with insurance

in mind, and that planning may affect the comparative

fairness of two competing rules of liability.”

As we have mentioned, the district court divided the

case against Piper into distinct issues, and ruled that a

California court would apply its law as to one and Scottish

law as to others. He then employed what conflicts scholars

refer to as depecage, defined as “the process of applying

the rules of different states to determine different issues in

the same case.” Although the California Supreme Court

has not explicitly adopted this method, it is implicit in that

69. Offshore Rental Co., Inc. v. Continental Oil Co., 22 Cal. 3d

157, 165-66, 583 P. 2d 721, 726, 148 Cal. Rptr. 867, 872 (1978)

(quoting Bernhard, supra note 68).

70. Id. (emphasis deleted) (quoting Freund, Chief Justice

Stone and the Conflict of Laws, 59 Harv. L. Rev. 1210, 1216

(1946) ).

71. Id. at 167, 583 P. 2d at 734, 148 Cal. Rptr. at 872.

72. Reese, Depecage: A Common Phenomenon in Choice of

Law, 73 Colum. L. Rev. 58, 75 (1973); see Broome v. Antler’s

Hunting Club, 595 F. 2d 921, 923 (3d Cir. 1979); R. Leflar, Ameri-

can Conflicts Law § 109, at 221-22 (3d ed. 1977).

A32 Court of Appeals Opinion

court’s analysis of cases and it is consistent with modern

governmental interest analysis to examine comparative

governmental interests as to each issue, to the extent the

issues are separable and the balance of comparative inter-

ests may vary.” We shall therefore examine separately

the issues identified by the parties and the district court:

the standard of liability, damages for wrongful death, and

the capacity of the plaintiff to bring a wrongful death suit

as a representative.

Any asserted conflict between American strict liability

and Scottish negligence law is, we believe, a false one.

Two basic policies underly theories of tort liability: de-

terrence of harm-causing conduct and compensation of

persons injured by that conduct. In private tort law, in

which civil rather than criminal liability is imposed, the

deterrent function is accomplished by compensation of

the plaintiff. The choice between holding a manufacturer

liable only for negligence and holding it strictly liable for

any dangerous products or design is, practically speaking,

a matter both of searching for optimal deterrence of harm-

ful conduct and of allocating the costs of injuries either

to producers or consumers. A negligence standard is,

broadly speaking, more protective of producers, while

strict liability is more solicitous of consumers.

The perceived conflict in this case is between Scot-

land’s interest in encouraging industry by protecting manu-

facturers and making it relatively more difficult for con-

sumers to recover. Pennsylvania, by contrast, in adopting

strict liability, has shifted some of the burdens of injuries

from consumers to producers. By adopting this policy of

increased deterrence, it hopes to make manufacturers more

73. See R. Leflar, supra note 72, at 222; Reese, supra note 72,

at 75. The approach is also implicit in the analysis of Professor

Cavers, whose work is often cited by the California Supreme Court.

See D. Cavers, supra note 67, at 40-43.

Court of Appeals Opinion A33

careful in production and design than they would be if

held to a negligence standard.”

Applying Pennsylvania’s strict liability standard to

its resident manufacturer would serve that state's interest

in the regulation of manufacturing. Scotland's interest

in encouraging industry within its borders would not be

impaired, however, by applying a stricter standard of

care on a foreign corporation which has no industrial op-

erations in Scotland. Furthermore, Scotland would have

to interest in denying compensation to its residents for

the purpose of benefiting a foreign corporation. Finally,

imposition of strict liability on Piper cannot be said to be

unfair to it. Inasmuch as Pennsylvania, the state in

which Piper makes its product, and the vast majority of

American jurisdictions in which most of Piper's aircraft

74. In a recent case in which the California Supreme Court

adopted comparative negligence into strict liability, the underlying

policy of the latter was said to be to shift the cost of injuries from

defective products from consumers to manufacturers. But the court

emphasized that strict liability is not absolute liability and does not

make the manufacturer an insurer of his product’s safety. Daly v.

General Motors Corp., 20 Cal. 3d 725, 733, 575 P. 2d 1162, 1166,

144 Cal. Rptr. 380, 384 (1978). In addition to spreading the costs

of accidents, strict liability is intended to increase a manufacturer's

incentive to produce safe products. See id. at 737-38, 575 P. 2d at

1169, 144 Cal. Rptr. at 387. See Calabresi, Optimal Deterrence and

Accidents, 84 Yale L. J. 656 (1975) (strict liability better serves

goal of optimal deterrence—minimization of accident and preven-

tion costs); Calabresi & Hirschoff Toward a Test for Strict Liability

in Torts, 81 Yale L. J. 1055, 1074-84 (1972) (shift from negligence

to strict liability cannot be explained simply in terms of better dis-

tribution of costs: strict liability’s appeal is also in greater deter-

rence of harmful conduct); cf. Prosser, The Assault Upon the

Citadel (Strict Liability to the Consumer ), 69 Yale L. J. 1121, 1122

(1960) (one argument that has convinced courts is that supplier of

pee ier athe tam re uate ae Shame regardless

of fault).

A34 Court of Appeals Opinion

are sold and fly, have strict liability,” that is the legal

standard under which it plans its operations.

Pennsylvania’s interest in deterring defects in products

can be served without impairing any significant interest

of Scotland. Application of Scotland’s negligence law

would only harm resident beneficiaries without any

countervailing benefit to its industrial economy. We

therefore conclude that, as between Pennsylvania and

Scottish law on this issue, a California court would apply

Pennsylvania’s strict liability standard. Similar considera-

tions would govern any greater restrictions on recovery

for wrongful death that Scotland may have.”

The district court declined to make any definitive

ruling on the issue of plaintiff's capacity to sue because

of the paucity of available information for balancing

comparative governmental interests. 479 F. Supp. at

735. There was thought to be no need to decide this

question, because the court concluded for other reasons

75. See, e.g., Wade, On Product “Design Defects” and Their

Actionability, 33 Vand. L. Rev. 551, 555 (1980) (major point of

controversy in America is no longer whether strict liability should

be adopted, but what its precise standards should be).

76. Courts employing governmental interest analysis have not

struggled long to determine that a state where plaintiff but not de-

fendant resides has no interest in restricting recovery for wrongful

death of its citizens against foreign corporations. See, e.g., Hurtado

v. Superior Court, 11 Cal. 3d 574, 522 P. 2d 666, 114 Cal. Rptr. 106

(1974); Cf. Rosenthal v. Warren, 475 F. 2d 438 (2d Cir.) (apply-

ing New York government interest analysis; New York forum would

apply its own unlimited recovery rather than limitation of state of

defendant where all tortious conduct occurred), cert. denied, 414

U. S. 856 (1973); Kuhne, Choice of Law in Products Liability, 60

Calif. L. Rev. 1, 28 (1972) (“Under a governmental-interest ap-

proach, [a] proplanitiff tendency will be conceptualized . . . by

imputing a greater state interest to recovery law than to those

refusing recovery.” )

Court of Appeals Opinion A35

that the action should be dismissed and brought anew in

Scotland.”

Because we reverse the dismissal, it will be necessary

for the trial judge to decide that issue based upon addi-

tional information. If it is held that Reyno does not have

representative capacity, it will be necessary to allow a

substitution of parties so that the decedents’ estates can

bring the action directly. Such a substitution would not

destroy diversity and should be granted in the interests

of justice.”

Guiding the trial judge’s decision should be the re-

quirement of Fed. R.Civ. P. 17(b) that the capacity of an

individual to sue in a representative capacity “shall be

determined by the law of the state in which the district

court is held.”” In addition to examining the laws of

77. On the choice of law issue as to representative capacity,

the court stated: “We . . . only have affidavits from lawyers from

_ Scotland as to what the rules of law are in that country and thus

we cannot make . . . any definitive ruling on the purpose of the

Scottish law or thereby the choice of law.” 479 F. Supp. at 735.

It later concluded only that “it appears the law of Scotland would

be applied to Defendant Piper with respect to the wrongful death

laws. Under this interpretation Plaintiff would not be a proper

litigant.” Id. at 736.

78. Fed. R. Civ. P. 17(a); see Field v. Volkswagenwerk AG,

No. 79-1710, slip op. at 24-25 (3d Cir. July 10, 1980).

79. Rule 17(b) in full provides:

The capacity of an individual, other than one acting in a repre-

sentative capacity, to sue or be sued shall be determined by the

law of his domicile. The capacity of a corporation to sue or

be sued shall be determined by the law under which it was

organized. In all other cases capacity to sue or be sued shall

be determined by the law of the state in which the district

court is held, except [(1) a special rule for partnerships and

other "aaa associations; and (2) bankruptcy re-

ceivers|.

A36 Court of Appeals Opinion

California and Pennsylvania to determine whether Reyno

has representative capacity,” the trial court should con-

sider whether the defendants’ challenge to the plaintiff's

capacity to sue has come too late in the litigation.”

b. Pennsylvania Conflicts Law Applied to Hartzell

Citing Griffith v. United Airlines,” the district court

applied the “significant contacts” approach to determine

79. (Cont'd. )

(emphasis added); see General Heat & Power Co. v. Diversified

Mortgage Investors, 552 F. 2d 556, 557 n. 1 (3d Cir. 1977) (sug-

gesting that Rule 17(b) encompasses the state's conflict of law

rules under Klaxon); Jacobs v. Adams, 601 F. 2d 176, 178-79 (5th

Cir. 1979) (applying conflicts of laws rule to determine scope of

power or right to bring suit).

80. The court “is held” in California as to Piper and in Penn-

sylvania as to Hartzell. See pp. 24-26 supra.

81. Fed. R. Civ. P. 9(a) requires that a party desiring to raise

an issue as to “the capacity of any party to sue . . . or the author-

ity of a party to sue . . . in a representative capacity . . . do so

by specific negative averment.” The federal rules do not make

clear when in the stage of a litigation lack of capacity ma: be

averred, but because lack of capacity is a dilatory defense, Profes-

sors Wright and Miller state that it “should be raised promptly.

Any unreasonable delay may encourage the court to deny the ob-

jection on the ground of prejudice.” 6 C. Wright & A. Miller,

Federal Practice and Procedures § 1542, at 640 (1971) (footnote

omitted). See 5 Id. § 1295, at 397 (objection to party's capacity

should be analogized to an affirmative defense and waived if not

asserted early in the litigation by motion or responsive pleading).

The record reveals that Reyno’s capacity was not challenged by

Piper until it joined Hartzell’s motion to dismiss after the case had

been transferred to the Middle District of Pennsylvania. This

motion came after Piper had moved to remove the case from a

California state court to a federal court, had filed its answer to the

complaint, and had successfully moved to transfer the case to the

Middle District of Pennsylvania.

82. 416 Pa. 1, 203 A. 2d 796 (1964).

Court of Appeals Opinion A37

that Scotland’s standard of liability, rather than that of

Ohio or Pennsylvania, applied to Hartzell.“ But a close

examination of Griffith and, more importantly, subsequent

elaborations by the Pennsylvania Supreme Court reveals

that Pennsylvania's approach to choice of law is quite

similar, at least for purposes of this litigation, to that of

California. Pennsylvania first looks to identify and thus

avoid false conflicts, and then, when a true conflict is

present examines and compares the competing govern-

mental interests.

In Griffith, the Pennsylvania Supreme Court over-

turned the old rule that the law of the state of wrong gov-

erns all issues in tort actions,“ but it did not specifically

set forth the contours of that rule’s replacement. In fact,

as the court later indicated, once governmental interests

were examined Griffith involved a false conflict situation.”

The state in which an airplane crashed was held to have

no interest in enforcing its limitation of damages for

wrongful death when neither party was a resident.”

The Pennsylvania Supreme Court noted three general

approaches competing to replace the old rule: (1) Pro-

fessor Currie’s early emphasis on applying the forum’s

law when the forum has a legitimate interest in the issue

presented; *’ (2) Professor Ehrenzweig’s stress on the

83. 479 F. Supp. at 736-37. All three jurisdictions have con-

tacts with or interests in the alleged tort. Scotland is the residence

of the decedents and the place of the fatal crash. Hartzell manu-

factured the allegedly defective propeller in Ohio and it was as-

sembled into the Piper aircraft in Pennsylvania.

84. 416 Pa. at 21-23, 203 A. 2d at 805-06.

85. Kuchinic v. McCrory, 422 Pa. 620, 624 & n. 4, 222 A. 2d

897, 899 n. 4 (1966).

86. Griffith, 416 Pa. at 24, 203 A. 2d at 807.

87. Id. at 14, 203 A. 2d at 802 (citing Currie, Comments on

Babcock v. Jacksons, 63 Colum. L. Rev. 1212, 1233 (1963) ).

Court of Appeals Opinion A39

be determined within the matrix of specific litigation.

What should be sought is an analysis of the extent to

which one state rather than another has demonstrated,

by reason of its policies and their connection and

relevance to the matter in dispute, a priority of inter-

est in the application of its rule of law.”

The latest discussion in Cipolla v. Shaposka ® summarized

the approach of the three cases discussed above as calling

upon the court to determine which state “has the greater

interest in the application of its law to the question now

before us.” Moreover,

In determining which state has the greater interest

in the application of its law, one method is to see

what contacts each state has with the accident, the

contacts being relevant only if they relate to the

“policies and interests underlying the particular issue

before the court.” When doing this it must be re-

membered that a mere counting of contacts is not

what is involved. The weight of a particular state’s

contacts must be measured on a qualitative rather

than quantitative scale.”

These cases indicate to us that the primary approach of

the Pennsylvania Supreme Court in choice of law is gov-

ernmental interest analysis. Our determination as to

whether the Pennsylvania court would apply American

strict liability and unlimited recovery for wrongful death,

rather than the negligence and damage limitations law

of Scotland, therefore follows our prediction of California

92. McSwain v. McSwain, 420 Pa. 86, 94, 215 A. 2d 677, 682

(1966) (citing Griffith, as well as California and New York cases).

93. 439 Pa. 563, 565, 267 A. 2d 854, 855 (1970).

94. Id. at 566, 267 A. 2d at 856 (quoting Griffith, 416 Pa. at 21,

203 A. 2d at 805).

A40 Court of Appeals Opinion

law. Indeed, the district court ruled that American

standards of liability would control under governmental

interest analysis applied as to California.” It is apparent,

then, that the district court erred in concluding that for-

eign law would govern a substantial part of the case, and

it is likewise apparent that the choice of law factor

weighted heavily in favor of dismissal for forum non

conveniens.

E. Other Elements of Public Interest

We have held that under the applicable choice of

law rules, Pennsylvania and Ohio are the jurisdictions

with the greatest policy interest in this dispute. It follows

that any other public interest factors that should be con-

sidered under the Supreme Court cases of Gilbert and

Koster favor trial in this country rather than Scotland.

95. There is some difference between California and Pennsyl-

vania, on the one hand, and Ohio on the other as to the standard of

proof in strict liability. Ohio has adopted in full Restatement (2d)

Torts 402A, subjecting to liability one who sells a product in a de-

fective condition “unreasonably dangerous.” See, e.g., Temple v.

Wean United, Inc., 50 Ohio St. 2d 317, 364 N. E. 2d 267, 168

(1977) (Syllabus by the Court); cf. Anton v. Ford Motor Co., 400

F. Supp. 1270, 1273-76 (S. D. Ohio 1975) (reviewing products lia-

bility decisions of the Ohio Supreme Court). Pennsylvania and

California have removed the “unreasonableness” requirement as

being inconsistent with the policy of strict liability. See e.g.,

Barker v. Lull Eng. Co., Inc., 20 Cal. 3d 413, 423-27, 573 P. 2d 443,

449-52, 143 Cal. Rptr. 225, 231-34 (1978); Azzarello v. Black Bros.

Co., 480 Pa. 547, 391 A. 2d 1020 (1978). Indeed, our Court in

interpreting Pennsylvania law has repeatedly held that use in a

jury charge of the Restatement 2d’s “unreasonably dangerous” lan-

guage is reversible error. E.g., Matlocks v. Daylin, Inc., 611 F. 2d

30 (3d Cir. 1979); Bailey v. Atlas Powder Co., 602 F. 2d 585 (3d

Cir. 1979). Giving separate charges on the Ohio standard for

Hartzell and the Pennsylvania standard for Piper need not neces-

sarily confuse the jury.

Court of Appeals Opinion A4l

III. ConcLusion

Because the defendants did not meet the burden re-

quired of them for a forum non conveniens dismissal, the

judgment of the district court will be reversed and the

cause remanded for further proceedings consistent with

this opinion.

A42 Court of Appeals Order

Order Amending Opinion and Amendment to Opinion of

the United States Court of Appeals for the Third

Circuit, Gaynell Reyno, as Personal Representative

of the Estate of William Fehilly, Liam Stewart

Fehilly, William James McDougall Storm, David

Vincent Moran, and Peter Cunningham Scott, Ap-

pellant v. Piper Aircraft Company, a Corporation;

Avco Lycoming Engine Group, a Division of Avco

Corporation; Hartzell Propeller, Inc., a Corporation,

Appellees No. 79-2747, Filed September 15, 1980.

UNITED STATES COURT OF APPEALS

For THE Turrp Circulr

No. 79-2747

GAYNELL REYNO, as Personal Representative of the

Estate of William Fehilly, Liam Stewart Fehilly,

William James McDougall Storm, David Vincent

Moran, and Peter Cunningham Scott,

Appellants

v.

PIPER AIRCRAFT COMPANY, a corporation; AVCO

LYCOMING ENGINE GROUP, a Division of AVCO

CORPORATION; HARTZELL PROPELLER, INC.,

a corporation

On APPEAL FROM THE UNITED STATES Districr Court

FOR THE Mipp_e District OF PENNSYLVANIA

C. A. No. 77-1159

Argued May 22, 1980

Court of Appeals Order A43

Before: ApAMs, VAN DusEN and HiccinsoTHaM,

Circuit Judges

ORDER AMENDING OPINION

It is Orperep that the slip opinion filed July 24, 1980

in the above matter be and is hereby amended as follows:

Page 7, first paragraph should read:

At the time of the transfer motion, critical facts

such as where various witnesses are, where the crash

occurred, where the wreckage was located, and who

owned the plane, were known. All that seems new

was that a British administrative agency would in-

vestigate and report on the accident and that the

decedents’ estates would institute a separate action

against the air taxi service in Scotland. Although these

last facts are indeed relevant to a forum non con-

veniens motion, they are hardly surprising or signifi-

cantly new.

By THE COURT,

Artin M. ADAMS

Circuit Judge

Dated: September 15, 1980.

A44 District Court Memorandum

Memorandum of the United States District Court for the

Middle District of Pennsylvania, Gaynell Reyno, as

Personal Representative of the Estate of William

Fehilly; Liam Stewart Fehilly, William James Mc-

Dougall Storm, David Vincent Moran, and Peter

Cunningham Scott, Plaintiffs v. Piper Aircraft Com-

pany, a Corporation; Avco Lycoming Engine Group,

a Division of Avco Corporation; Hartzeil Propeller,

Inc., a Corporation, Defendants, Civil Action No.

77-1159, Filed October 19, 1979, 479 F. Supp. 727

(1979).

UNITED STATES DISTRICT COURT

M. D. PENNSYLVANIA

Oct. 19, 1979.

Gaynell REYNO, Personal Representative of William

Fehilly, Liam Stuart Fehilly, William James Mc-

Dougall Storm, David Vincent Moran and Peter

Cunningham Scott, Plaintiffs,

0.

PIPER AIRCRAFT COMPANY, a corporation, Avco

Lycoming Engine Division, a Division of Avco Corpo-

ration, Hartzell Propeller, Inc., a corporation, De-

fendants.

Civ. A. No. 77-1159.

MEMORAN)JUM

Herman, District Judge.

This action arises out of an airplane crash near Tulla,

Scotland on July 27, 1976 in which all persons aboard were

District Court Memorandum A45

killed. The Plaintiff, Gaynell Reyno, instituted this suit as

the personal representative of five decedents, William

Fehilly, Liam Stuart Fehilly, William James McDougall

Storm, David Vincent Moran, and Peter Cunningham Scott.

Gaynell Reyno seeks general damages for the heirs and

next of kin of the above decedents and damages for funeral

and burial expenses in this suit styled as one for wrongful

death on the basis of products liability and negligence

theories. The remaining Defendants, Piper Aircraft Com-

pany and Hartzell Propeller, Inc., were the manufacturers

of the aircraft and propeller respectively. A number of

motions are presently before the court, a motion to dismiss

filed by Defendant Hartzell Propeller, a motion for judg-

ment on the pleadings or for summary judgment filed by

Piper Aircraft, and two motions to strike a responsive brief

filed by the Plaintiff. After reviewing the extensive mate-

rials submitted by all parties, we have concluded that this

action must be dismissed on the ground of forum non con-

veniens. This dismissal will be conditioned on the De-

fendants abiding by their stipulation to submit to the

jurisdiction of the courts of Scotland and their waiver of

the Scottish statute of limitations.

Several issues were raised by the motions of the De-

fendants. Other than their main argument that the action

should be dismissed under the doctrine of forum non con-

veniens, the Defendants also asserted that under applicable

choice of laws rules that the law of Scotland would control

this action and that pursuant to Scottish law, the Plaintiff

neither has standing nor a right to proceed under the theory

of strict tort liability. This question of the applicable law

is interrelated with the analysis for forum non conveniens

and because of our decision that the Defendants have

shown overwhelming reasons for dismissal under this doc-

trine, we need not directly confront the standing and lia-

bility issues. The Plaintiff has also raised the question of

estoppel which we have found to be unpersuasive.

A46 District Court Memorandum

Our primary attention therefore is focused on the

factors applicable to the doctrine of forum non conveniens

and the question whether we should exercise jurisdiction

over this action brought by reason of an aircraft accident in

Scotland, in which Scottish citizens who were passengers

and a Scottish pilot, acting in the course of his employment

with a Scottish Air Service, were killed while flying in

Scottish airspace and when all decedents’ survivors, the

real parties in interest, are citizens and residents of Scot-

land and more particularly, when the only contact with

Pennsylvania is that it was the site of the manufacture of

the airplane involved in this litigation, not the propeller

which was manufactured and designed in Ohio, over seven

years prior to the date of the fatal accident. Too much

has happened from the date the airplane left the plant of

Piper Aircraft, which goes to the heart of the question of

liability, that the contact with this forum with respect to

this action can at best be described as plainly insignificant.

The procedural history of this case is important to our

decision of dismissal. The action was instituted by Plain-

tiff Reyno in the Superior Court of the state of California

for the county of Los Angeles in July of 1977. After being

removed to federal court in August of that year, Defend-

ant Hartzell filed a motion to dismiss the action for lack

of persona’ urisdiction or in the alternative to transfer the

action pursuant to 28 U. S. C. §1404(a). Defendant

Piper then joined in Defendant Hartzell’s motion to trans-

fer the action on November 23, 1977. The District Court

entered an order on December 21, 1977 granting Defend-

ant Hartzell’s motion to quash service of process and

granting the motion to transfer this action to the United

States District Court for the Middle District of Penn-

sylvania. The quashing of service of process to Hartzell

was based on due process considerations set forth in Inter-

national Shoe Company v. Washington, 326 U. S. 310, 66

District Court Memorandum A47

S. Ct. 154, 90, L. Ed. 95 (1945). The court did not dis-

miss the action against Defendant Hartzell since valid

service against it was possible in the Middle District of

Pennsylvania. The importance of the transfer of the

action and the quashing of service against Hartzell lies in

the applicable choice of laws rule that is relevant to each

Defendant under rules of Van Dusen v. Barrack, 376 U. S.

612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) and Klaxon

Co. v. Stentor Electric Manufacturing, 313 U. S. 487, 61

S. Ct. 1020, 85 L. Ed. 1477 (1944).

The facts as noted center on the crash of an aircraft

on July 27, 1976 in which the pilot and all passengers were

killed in the navigable air space near Tulla, Scotland. The

aircraft involved in the accident was a Piper Model TA-23

bearing British registration mark G-AYSF which was man-

ufactured by Defendant Piper at Lock Haven, Pennsyl-

vania. The plane’s propeller was designed and manufac-

tured by Defendant Hartzell Propeller, Inc. in Ohio. The

aircraft was being piloted at the time of the accident by a

Scottish citizen and resident, over mountainous terrain in

southern Scotland. Subsequent to the manufacture of the

aircraft involved in this accident it was sold and delivered

to a purchaser in Ohio for use in the United States. By a

chain of events, apparently still unknown to the Defend-

ants, the plane came to be owned and operated by a

Scottish air-taxie company in Scotland and the British

Isles. The plane was owned, operated, maintained, and

serviced by the Scottish owner for several years preceding

the accident of July 27, 1976. The British Department of

Trade Investigation investigated the accident shortly after

its occurrence. Presently, what remains of the wreckage

is in the possession of the British Department of Trade

Investigation.

The Plaintiff, Gaynell Reyno instituted this action as

the personal representative of the estates of five of the de-

A48 District Court Memorandum

cedents. All of these decedents were citizens and resi-

dents of the country of Scotland. Also, all heirs and next

of kin, and all those persons entitled to recover by virtue of

the deaths of the passengers, (if any recovery is decreed),

are citizens and residents of the country of Scotland.

Plaintiff Reyno is a citizen and resident of California and

is not related to the decedents.

The Defendants assert that the accident was due to

pilot error or improper maintenance and servicing of the

aircraft and in this respect have stated their desire and

inability to join the operating company by whom the pilot

was employed, the pilot’s estate, and the owner and main-

tainer of the aircraft. A lawsuit has been brought before

the courts of Scotland naming as defendants the operating

company, MacDonald Aviation, Ltd., the owner of the

plane, Air Navigation and Trading Company, Ltd., the

executor of the pilot’s estate, and the Civil Aviation Au-

thority. Also an action was commenced in the courts of

Great Britain against Piper Aircraft and Hartzell Propellers

along with McDonald Aviation and Air Navigation and

Trading Company by a personal representative of the

sixth passenger in the aircraft at the time of the accident,

the only passenger not represented by Gaynell Reyno in

the instant action. Therefore at least one action is pend-

ing before the courts in the United Kingdom against the

present Defendants and other involved parties.

We now begin with a discussion of the factors that we

believe substantially point to the dismissal of this action

under the doctrine of forum non conveniens. We have the

inherent power to refuse jurisdiction over a case such as

this one where the interests of justice require that the suit

be brought in a foreign country. Gulf Oil Corporation v.

Gilbert, 330 U. S. 501, 67 S. Ct. 839, 91 L. Ed. 1055

(1947); DeMateos v. Texaco, Inc., 562 F. 2d 895 (3d Cir.

1977), cert. denied 435 U. S. 904, 98 S. Ct. 1449, 55 L. Ed.

District Court Memorandum A49

2d 494 (1978); Fitzgerald v. Texaco, Inc., 521 F. 2d 448

(2d Cir. 1975) cert. denied 423 U. S. 1052, 96 S, Ct. 781,

46 L. Ed. 2d 641 (1976); Dahl v. United Technologies Cor-

poration, 472 F. Supp. 696 (D. Del. 1979).

The general factors that, we must consider in de-

termining whether to dismiss an action for forum non

conveniens were set forth by the Supreme Court in Gulf

Oil Corporation v. Gilbert, 330 U. S. 501, 67 S. Ct. 839,

91 L. Ed. 1055 (1947). Mr. Justice Jackson enumerated

in that decision numerous private and public interests that

should be considered under the doctrine. The factors

to the private interests of the litigants are the

“relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the

cost of obtaining attendance of willing witnesses; possi-

bility of view of premises, if view would be appropriate

to the action; and all other practical problems that make

trial of a case easy, expeditious, and inexpensive” Id. at

508, 67 S. Ct. at 843. The public factors bearing on the.

question include the administrative difficulties flowing

from court congestion, an interest in having local contro-

veries decided at home, the interest in having the trial of a

diversity case in a forum that is at home with the law that

must 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. Id. at 508-509, 67 S. Ct. 839.

The above cited factors have generally been followed

by all courts presented with the issue of whether a case

should be dismissed because a foreign forum is the more

convenient one, See, e.g., DeMateos v. Texaco, Inc., 562,

F. 2d 895, 899 (3d Cir. 1977); Fitzgerald v. Texaco, Inc.,

521 F. 2d 448, 450-51 (2d Cir. 1975); J. F. Pritchard and

Co. v. Dow Chemical of Canada, 462 F. 2d 998, 1000 (8th

Cir. 1972); Fitzgerald v. Westland Marine Corporation,

A50 District Court Memorandum

369 F. 2d 499, 501-02 (2d Cir. 1966); Dahl v. United

Technologies Corporation, 472 F. Supp. 696, 699 (D. Del.

1979); Top Form Mills v. Sociedad Nationale Industria,

428 F. Supp. 1237, 1252-53 (S. D. N. Y. 1977); Michell

v. General Motors Corporation, 439 F. Supp. 24, 26-27

(N. D. Ohio 1977); Texaco Trinidad, Inc. v. Astro Exito

Navegacion S. A., 437 F. Supp. 331, 332 (S. D. N. Y.

1977); Farmanfarmaian v. Gulf Oil Corporation, 437 F.

Supp. 910, 923 (S. D. N. Y. 1977); DelRio v. Ballenger

Corporation, 391 F. Supp. 1002, 1004 (D. S. C. 1975);

Domingo v. States Marine Lines, 340 F. Supp. 811, 814-13

(S. D. N. Y. 1972); McCarthy v. Canadian National Rail-

ways, 322 F. Supp. 1197, 1199 (D. Mass. 1971); Olympic

Corporation v. Societe Generale, 333 F. Supp. 121, 123-24

(S. D. N. Y. 1971). We have carefully read each of the

above cited decisions and in light of these decisions and

their analysis of the Gulf Oil factors, it is clear that it

would be no less than an abuse of our discretion if we did

not dismiss this action on forum non conveniens grounds

as the Gulf Oil criteria overwhelmingly point to dismissal.

The first factor that we must consider is whether an

alternative forum is open to the Plaintiff if this motion is

dismissed. Generally, it has been stated by the courts that

the doctrine of forum non conveniens presupposes that an

alternative more appropriate and convenient forum is

available. See, e.g., DelRio v. Ballenger Corporation, 391

F. Supp. 1002, 1006 (D. S. C. 1978), Texaco Trinidad v.

Astro Exito Navegacion S, A. 437 F. Supp. 331, 332 (S. D.

» N.Y. 1977); Farmanfarmaian v. Gulf Oil Corporation, 437

F, Supp. 910, 915 (S. D. N. Y. 1977). This principle is

taken from the Gulf Oil decision in which it is stated “[i]n

all cases in which the doctrine of forum non conveniens

comes into play, it presupposes at least two forums in

which the defendant is amenable to process... .” Gulf

Oil, 330 U. S. at 506-07, 67 S. Ct. at 842. In the instant

District Court Memorandum A51

motion the Defendants have consented to submit to the

jurisdiction of the Scottish courts of law and we have

noted our intention of conditioning the dismissal of this

action on their submission to the jurisdiction of such courts

and their waiver of any statute of limitation. Plaintiff has

an alternative forum available to her and in fact a case is

proceeding in the foreign courts already.

Next, we turn to the important factor of Plaintiff's

choice of forum. As stated in Gulf Oil, “unless the bal-

ance is strongly in favor of the defendant, the plaintiff's

choice of forum should rarely be disturbed.” Id. at 508,

67 S. Ct. at 843. Here the Plaintiff's first choice was the

California state Superior Court. Plaintiff relies on a num-

ber of cases under 28 U. S. C. § 1404(a) in which the

Plaintiffs were American citizens. This case, however,

does not involve section 1404(a) as the determination

rests on our inherent power to dismiss and it also does

not involve Americans as real parties in interest. Rather,

the Plaintiff is a representative of foreign citizens and resi-

dents seeking a forum in the United States because of the

more liberal rules concerning products liability law.

Generally, the courts have been less solicitous when

the plaintiff is not an American citizen or resident and,

particularly when the foreign citizens seek to benefit from

the more liberal tort rules provided for the protection of

citizens and residents of the United States. As stated in

Farmanfarmaian v. Gulf Oil Corporation, 437 F. Supp.

910, 927 (S. D. N. Y. 1977), when a case involves a “claim

of a foreign plaintiff, [his] choice of forum should be

given less weight than the choice of an American plain-

tiff... .” And in Olympic Corporation v. Societe Gen-

erale, 462 F.. 2d 376, 378 (2d Cir. 1972), the court stressed

that the balance of the Gulf Oil factors need not be as

strong in favor of defendants when the plaintiff is not an

American citizen. See also, Olympic Corporation v. So-

A52 District Court Memorandum

ciete Generale, 333 F. Supp. 121, 124 (S. D. N. Y. 1971);

Michell v. General Motors Corporation, 439 F. Supp. 24

(N. D. Ohio 1977).

Also, the plaintiff's choice of forum is generally given

less weight when the forum selected is not the plaintiff's

home jurisdiction. Fitzgerald v. Texaco, Inc., 521 F. 2d

448, 451 (2d Cir. 1975); McCarthy v. Canadian National

Railways, 322 F. Supp. 1197, 1199 (D. Mass. 1971). in

this case the real parties in interest, the heirs and next of

kin of William Fehilly, Liam Stuart Fehilly, William James

McDougall Storm, David Vincent Moran, and Peter Scott,

are not American citizens or residents, but rather, citizens

and residents of Scotland. Since the real parties in inter-

est are not American citizens, and the forums of either

California or the Middle District are not in any way their

“home” forum, this factor of plaintiff's choice of forum

is entitled to little weight.

The next grouping of factors that we will weigh are

the private interests of the litigants, including relative ease

of access to sources of proof, availability of compulsory

process, cost of obtaining willing witnesses, necessity of a

view of the premises, and the site of the investigation of an

accident. A review of the facts in this case illustrates that

all such private interests point to Scotland as the appro-

priate forum for this litigation.

Nearly all events relevant to this action occurred out-

side of the Middle District of Pennsylvania. The only con-

nection with this forum is the fact that the plane was

manufactured here over seven years before the accident.

The only contact with Plaintiff's choice of forum, Cali-

fornia, is that Plaintiff's attorney and expert reside there.

Convenience to counsel or to expert witnesses, it should be

noted, is of small importance in the balancing of factors.

See Car-Freshner Corporation v. Auto Aid Manufacturing

Corporation, 438 F. Supp. 82, 85 (N. D. N. ¥Y. 1977). The

District Court Memorandum A53

connections with Scotland are overwhelming. The acci-

dent occurred in Scotland, the real parties in interest are

citizens of Scotland, the decedents were all citizens of

Scotland, the investigation of the accident occurred in

Scotland, the aircraft was owned, operated, and maintained

by a Scottish company, the pilot was Scottish, the wreck-

age remains in the possession of the foreign authorities,

nearly all witnesses needed for the defense of this suit are

located in Scotland, and all witnesses to damages are

located in Scotland.

The ease of access to proof element strongly points to

dismissal of this action. First, all evidence as to damages,

both witnesses and documents, is located in Scotland. Ease

of access to sources of proof of damages is an important

factor in a wrongful death action. Domingo v. States

Marine Lines, 340 F. Supp. 811, 815 (S. D. N. Y. 1972).

Furthermore, nearly all witnesses necessary for the defense

of this suit are located in the British Isles. For example,

witnesses regarding the maintenance of the aircraft are in

Great Britain, witnesses concerning the training of the pilot

are located there, and witnesses relating to the investiga-

tion of the accident are in the British Isles. None of these

witnesses are subject to compulsory process. Clearly, these

witnesses are critical to this case and since they are located

in Scotland, it would be more convenient for the witnesses

and less costly for the litigants to litigate this matter in

Scotland. See, Fitzgerald v. Texaco, Inc., 521 F. 2d 448,

451 (2d Cir. 1975); Dahl v. United Technologies Corpora-

tion, 472 F. Supp. 696 (D. Del. 1979); Domingo v. States

Marine Lines, 340 F. Supp. 811, 815 (S. D. N. Y. 1972);

Top Form Mills v. Sociedad Nationale Industria, 428 F.

Supp. 1237, 1253 (S. D. N. Y. 1977); J. F. Pritchard & Co.

v. Dow Chemical of Canada, 462 F. 2d 998, 1002 (8th Cir.

1972); DelRio v. Ballenger Corporation, 391 F. Supp. 1002,

1004 (D. S. C. 1975).

Ad4 District Court Memorandum

Plaintiff relies on the argument that the essential ele-

ments needed for proof of her case are present in this forum

since the plane was designed and manufactured here. We

note that the alleged defective component part, the pro-

peller, was designed and manufactured outside of this

forum. Also the aircraft was manufactured over seven

years prior to the accident and evidence of any changes in

the plane is located in Scotland. Even Plaintiff admits

that all witnesses to damages reside in Scotland. Further-

more, we cannot accept Plaintiff's argument that the evi-

dence going to legitimately raised defenses is irrelevant to

our determination. The interests of justice require that a

trial be fair to all parties, not just the Plaintiff.

While there are no doubt numerous cases that have

reached this same conclusion based on fundamental fair-

ness, we will specifically point to just two. The first case

we rely on is Michell v. General Motors Corporation, 439

F. Supp. 24 (N. D. Ohio 1977). In Michell the court held

that mere design and manufacture of an infant seat in

Michigan was not crucial in the balancing of factors and it

dismissed the suit on forum non conveniens grounds where

the injury was to Canadian plaintiffs, involved a Canadian

accident, when presentation of Canadian witnesses was

necessary and could not be guaranteed in the United

States. Id. at 25-26. All of these factors are present in the

instant case and like the Michell court, we find the evidence

relating to design in this action to be overwhelmed by the

evidence needed from Scottish sources.

The second case on point on this question is Dahl v.

United Technologies Corporation, 472 F. Supp. 696 (D.

Del. 1979). Dahl was brought in Delaware by the personal

representative of four Norwegians who died in a crash of a

Norwegian owned and operated helicopter in Norwegian

territorial waters against the helicopter manufacturer on

the basis of design and manufacture defects. Chief Judge

District Court Memorandum A55

Latchum discussed the nearly identical factual pattern as

we have here in the following manner:

. . a substantial amount of the testimonial evidence

will come from Norwegians. Testimony from persons

who knew the decedents will be relevant to the dam-

ages issue. Among the potential liability witnesses are

employees of Helikopter Service A/S, employees from

other firms in Norway that serviced or made installa-

tions on the ‘helicopter, and the Norwegian govern-

ment officials who investigated the accident.

Id. at 700. We think the chief judge was absolutely cor-

rect, that we must look to all evidence that is necessary for

a fair trial and in this case the place to find such evidence

is Scotland.

Interrelated with the above discussion is the fact that

the witnesses and other evidentiary materials that are

located in Scotland are beyond the reach of compulsory

process of this court. The unavailability of compulsory

process to compel the attendance of witnesses necessary for

a complete and fair trial has been recognized as a critical

factor in the dismissal of cases for forum non conveniens.

See e.g., Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 451 (2d

Cir. 1975); Fitzgerald v. Westland Marine Corporation, 369

F. 2d 499 (2d Cir. 1966); Dahl v. United Technologies

Corporation, 472 F. Supp. 696, 700 (D. Del. 1979); Michell

v. General Motors Corporation, 439 F. Supp. 24, 27 (N. D.

Ohio 1977); Texaco Trinidad, Inc. v. Astro Exito Nave-

gacion S. A., 437 F. Supp. 331 (S. D. N. Y. 1977); DelRio

v. Ballenger Corporation, 391 F. Supp. 1002, 1004 (D. S. C.

1975); Domingo v. States Marine Lines, 340 F. Supp. 811,

815 (S. D. N. Y. 1972).

Finally, the absence of necessary third parties weighs

heavily on our determination that the Middle District is

A56 District Court Memorandum

not a suitable forum for this litigation. The Defendants

have persuasively argued that persons located in Scotland

ought to be made parties to this suit. These include the

pilot, the owner cf the plane, and the operating company.

Since the Defendants in this action cannot implead these

necessary parties it would be unfair to make Piper and

Hartzell proceed to trial in this forum. This inability to

implead parties located in foreign countries has likewise

been viewed as a critical factor by the courts. See e.g.,

Gulf Oil Corporation v. Gilbert, 330 U. S. 501, 511, 67

S. Ct. 839, 91 L. Ed. 1055 (1946); Texaco Trinidad, Inc. v.

Astro Exito Navegacion S. A., 437 F. Supp. 331, 334 (S. D.

N. Y. 1977); Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 453

(2d Cir. 1975); Fitzgerald v. Westland Marine Corpora-

tion, 369 F. 2d 499, 502 (2d Cir. 1966); Olympic Corpo-

ration v. Societe Generale, 333 F. Supp. 121, 124 (S. D.

N. Y. 1971); Domingo wv. States Marine Lines, 340 F. Supp.

811, 816 (S. D. N. Y. 1972). These potential defendants

could be reached in Scotland and in fact they have been

joined with the instant Defendants in a suit in the British

Isles. Certainly it would be fairer to all parties and less

costly if the entire case was presented to one jury with

available testimony from all relevant witnesses.

The last factor that we will discuss pertaining to

the private interests is the necessity of a view. More gen-

erally, we believe this factor of Gulf Oil requires us to

consid

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