# Petition — HARTZELL PROPELLER, INC. v. GAYNELL REYNO (Nos. 80-883, 80-848) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1911%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 ## Text 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 co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1911%3A1. Public record. Not legal advice.