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

nena

Ottlee-Supreme Court, U.S.

FILED

4AM 10 1961

No. 80-883 ALEKANDER L. STEVAS,

Supreme Court of the United States

October Term, 1980

HARTZELL PROPELLER, INC.,

: Petitioner,

0.

GAYNELL REYNO, as Personal Representative of the

Estates of William Fehilly, et al.,

Respondent.

REPLY BRIEF OF PETITIONER

Ronaxp C, Scorr

Krusen Evans AND BYRNE

500 Public Ledger Building

Philadelphia, PA 19106

Telephone (215) 923-4400

Counsel of Record for Petitioner,

ortaclt Promalten

, Inc.

KRUSEN EvANs - BYRNE

artes gel

International Printing Co., 711 So, 60th St., Phila., Pa. 19143 — Tol. (218) 727-8711

TABLE OF AUTHORITIES

Cases: Page

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

(S. D. N. Y. 1978), aff'd, 628 F. 2d 1344 (2d Cir, 1980) 5

Collins v. Hilton International Co., 628 F. 2d 1344 (2d Cir.

WOOD) ccccccccccccccccscccccccccccccccvccccccccoces 5

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

(8. D. Ni. ¥. 1080) ..ccccccccccccscccccccccscvevcves 5

DeMateos v. Texaco, Inc., 435 U. S. 904 (1978) ........... 6

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

cert. denied, 423 U. S. 1052 (1976) .........seeeeee 2, 4, 5,6

Fitzgerald v. Texaco, Inc., 423 U. S. 1052 (1976) .......... 6

Fosen v. United Technologies Corp., — F. 2d — (2d Cir.

BOB) arccaccccroccccccccccccccccscscccccccccsovcce 5

Gulf Oil Corp. v. Gilbert, 330 U. S, 501 (1947) ........555. 3

Hartzell Propeller, Inc. v. Reyno, No, 80-883 (U. S. docketed

November 25, 1080) .....ccccccccccccvecsevesseeees 1

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

WTO) crccccccccccccccccccccccrcccccccccccccccccces 5

Orion Insurance Co., Ltd. v. United Technologies Corp., 15

Av. Cas. 18,061 (S. D. N. ¥. 1980) .....ccceccceeeeees 5

Pain v. United Technologies Corp., Nos. 79-1730-34 (D. C.

Cie, BRB). vccvcccccccccccccvcccccccccecccccecccces 6

Piper Aircraft Co. v. Reyno, No, 80-848 (U. S. docketed

Novemiber 25, 1980) .....cccccccsccccccesccceecnens 1

Shepard Niles Crane & Hoist Corp. v. Fiat, S. p. A, &4

F. R. D. 200 (W. D. N. Y¥. 1979) .....cccccecceceeees 5

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

Panama, 437 F. Supp. 331 (S. D. N. Y. 1977) .......... 5

Van Dusen v. Barrack, 376 U. S. 612 (1964) ..........008 2,3,4

Statutes:

28 U.S. C. § 1404(a) (1976) 2... .cceeeeeccncvccvcscvces 3,4

ARGUMENT

The petition of Hartzell Propeller, Inc. (“Hartzell”)

for a writ of certiorari to the United States Court of Ap-

peals for the Third Circuit was docketed on November 25,

1980." Respondent Gaynell Reyno has filed an Opposi-

tion to Petitions for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit (“Brief in Opposi-

tion”).* The following reply to Respondent's Brief in

Opposition is made necessary by numerous mischaracteri-

limited to a response to what is termed an “overriding

concern” * with and “undue emphasis” * upon the holding

of the court below that the doctrine of forum non con-

the Third Circuit at n. 1, Hartzell

2 Argument

attention erroneously circumscribes* the decision below

and the doctrine of forum non conveniens itself.°

Such an argument is blind both to the significance of

this case and to its potential for emasculation* of the doc-

trine as announced by this Court.*

This argument further mischaracterizes the grounds

upon which review is sought. It reveals an inability to

meet Petitioner's assertions in support thereof. The peti-

tion herein presents four questions for review. The sub-

ject to which the Brief in Opposition is directed is but

one of those questions.’

Second, Respondent’s argument opposing review of

the lower court’s determination as to change of substan-

tive law is erroneous and highly misleading. Respondent

incorrectly concludes that the decision of this Court in Van

Dusen v. Barrack * supports the DeMateos-Reyno rule.”

In Van Dusen this Court considered whether a transfer.

between federal district courts ought to result in a change

in applicable substantive law. It did not consider whether

5. Id. at 10.

6. Id. at 8.

7. See Fitzgerald v. Texaco, Inc., 521 F. 2d 448, 453 (2d Cir.

1975), cert. denied, 423 U. S. 1052 (1976). See also Petition at

10-14.

8. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947).

9. See Petition at (i).

Notably, the majority of Petitioner's argument concerns sub-

jects which the Brief in Opposition ignores. Respondent does not

contest the grounds and necessity for review of questions concern-

ing the weight of the choice of forum of a non-resident alien

plaintiff, the standard for appellate review, and the extent to which

witnesses and their testimony must be specified.

10. 376 U. S. 612 (1964).

11. See Petition at 6-8.

Argument 3

declination of jurisdiction in favor of litigation in the

courts of a foreign nation, rather than mere transfer in

favor of another federal district court, ought to result in

a change in applicable substantive law. The limitation of

the decision is clearly indicated by this Court’s thought-

ful analysis of 28 U. S. C. § 1404(a) termed “a congres-

sional statute apportioning the business of the federal

courts... .”?* That statute, of course, makes no reference

to transfer to or declination of jurisdiction in favor of a

foreign tribunal.” Further, this Court observed that

both the history and purposes of § 1404(a) indicate

that it should be regarded as a federal judicial house-

keeping measure, dealing with the placement of liti-

gation in the federal courts and generally intended,

on the basis of convenience and fairness, to authorize

a change of courtrooms.”*

Furthermore, Van Dusen:is a decision fundamentally

grounded in choice of law.” This Court’s paramount

12. Van Dusen, supra n. 10, at 637.

13. See 28 U.S. C. § 1404(a) (1976).

The inapplicability of Van Dusen to the international forum

non conveniens context is illustrated by this Court’s statement that

a “change in venue under § 1404(a) generally should be, with

respect to state law, but a change in courtrooms.” Van Dusen,

supra, n. 10, at 639. Forum non conveniens does not relate to

change in venue within a single legal system. It concerns discre-

tion of a legal system to decline jurisdiction. Gulf Oil Corp. v.

Gilbert, supra, n. 8 at 504. Thus, decisions under a statute au-

thorizing change in venue between federal district courts are not

applicable to the issue presented herein.

14. Van Dusen, supra n. 10, at 636-37.

15. It is noteworthy that the Van Dusen Court gave little con-

sideration to the criteria for transfer. That attention extended

4 Argument

concern was what law was to be applied upon transfer

of an action from. one federal district court to another.

This Court is empowered to determine what law

should be applied by the transferee forum, a federal dis-

trict court, under such circumstances. However, the in-

stant case presents no question for decision by any Ameri-

can court as to what law shall be applied by the potential .

“transferee” forum, i.e., Scotland. Indeed, it could not.

Any foreign state has the power and right to change its

own choice of law rules or substantive law at any time.

Given the foregoing, Respondent's reliance upon Van

Dusen to support the DeMateos-Reyno rule is unwar-

ranted.

Respondent also contends that no conflict exists be-

tween the decisions of the Courts of Appeals for the

Second and Third Circuits as to the effect of a change in

substantive law.”* Principal support for this argument is

derived from an artful attempt to distinguish the facts of

the instant case from those of Fitzgerald v. Texaco, Inc."

Variance between the facts of those cases, if it exists, is a

distinction without a difference. No amount of factual

contortion can alter the direct conflict between the legal

principles for which each case stands.

Further, Respondent’s attempt to distinguish the two

decisions does not remove the material and direct conflict

between the courts of appeals. Respondent recognizes

that the Court of Appeals for the Third Circuit has held

that a motion to dismiss on grounds of forum non conven-

15. (Cont'd. )

only to a reminder to lower courts that, in resolution of motions

for transfer under Section 1404(a), difficulties in application of

foreign law by a transferee forum are to be considered. Van

Dusen, supra n. 10, at 643-46.

16. Brief in Opposition at 7 and 10.

17. Supra, n. 7.

Argument 5

iens must be denied whenever dismissal would result in a

change in the applicable law adverse to plaintiff..° No

authority is provided to refute the assertion of Petitioner

that the Court of Appeals for the Second Circuit and the

district courts of which that circuit is comprised have con-

sistently ** determined to the contrary.

Respondent additionally distinguishes the instant case

from Fitzgerald on the ground that, unlike Fitzgerald, the

instant case is one in which “there has been posited by

plaintiff strict liability on the part of two domestic corpo-

rations, with no intervening causative organizations or in-

dividuals.” *° That statement is literally correct, yet it is

highly misleading. It ignores actions presently pending

before the courts of the United Kingdom in which Re-

spondent seeks recovery from precisely such “intervening

causative organizations or individuals.”** Indeed, Peti-

tioner’s inability to implead the defendants in those actions

if the instant case proceeds in the United States is one of

the strongest factors in favor of a forum non conveniens

18. Brief in Opposition at 4-5.

19. See Collins v. Hilton International Co., 638 F. 2d 1344 (2d

Cir. 1980); Fosen v. United Technologies Corp. — F. 2d —

(2d Cir. 1980); 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); Orion Insurance Co.,

Ltd. 0. United Technologies Corp., 15 Av. Cases 18,061, 18,062

(S. D. N. Y. 1980), quoting Fitzgerald, supra n. 7, at 453; Shepard

Niles Crane & Hoist Corp. vo. Fiat S. p. A. 84 F. R. D. 299, 306

(W. D. N. iBegin Pitti ogee ig agen

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

(S. D. N. Y. 1978), quoting Fitzgerald, supra n. 7, 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. 7,

at 453.

20. Brief in Opposition at 7 (emphasis added).

21. See Petition at 2-3.

6 Argument

dismissal. Such an approach was followed both in Fitz-

gerald and the very recent decision of the Court of Ap-

peals for the District of Columbia Circuit in Pain v. United

Technologies Corp.”

Additionally, Respondent attempts to denigrate the

conflict between the courts of appeals on the question of

change of law by representation that “this Court has to

date declined to comment on such alleged discrepancy

between the Circuits. . . .”* In support thereof Re-

spondent cites denials of petitions for writs of certiorari in

Fitzgerald and in DeMateos v. Texaco, Inc.* Denial of

those petitions * does not indicate a refusal to comment

upon the conflict presented herein. The Fitzgerald rule

was announced by the Court of Appeals for the Second

Circuit in 1975. The DeMateos-Reyno rule initially arose

upon the Court of Appeals for the Third Circuit’s decision

in DeMateos in 1977. It is elemental, therefore, that this

Court could not decline to comment upon a conflict non-

existent at the time of its denial of certiorari in Fitzgerald

in 1976. Further, this Court’s denial of certiorari in De-

Mateos in 1978 does not show a refusal to comment upon

the conflict between the circuits presented herein. In

DeMateos petitioner did not seek review with respect to

the questions of forum non conveniens which are the sub-

ject of the instant petition.

22. Fitzgerald, supra n. 7 at 453; Pain v. United Technologies

Corp., Nos. 79-1730-34 at 27-29 (D. C. Cir. 1980).

23. Brief in Opposition at 7.

24. Brief in Opposition at 7 n. 11, citing Fitzgerald v. Texaco,

Inc., 423 U. S. 1052 (1976); DeMateos v. Texaco, Inc., 435 U. S:

904 (1978).

25. See Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit, DeMateos v. Texaco, Inc.,

435 U. S. 904 (1978); Petition for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit, Fitzgerald vo. Tex-

aco, Inc., 423 U. S. 1052 (1976).

Argument 7

Third, Respondent has misstated the facts of this case.

It is alleged that “[a]lthough some inconsistencies remain

regarding the cause of the aircrash, it has become clear

that prior to the crash . . . [a] . . . propeller malfunction

occurred.” ** The record does not support this statement.”

Fourth, Respondent has persisted in a practice of dis-

ingenuous confusion between and group reference to your

petitioner and Piper Aircraft Company. Reference is made

to “defendants’ prior insistence, in the context of formal

motions, that . . . [Pennsylvania] . . . represents the most

appropriate forum for the resolution of this dispute.” *

The petition herein makes clear that this statement is

inaccurate.”

Finally, Respondent argues that the inquiry disposi-

tive of the instant petition for review is whether the de-

cision below was “prejudicial” and “disruptive of federal

law.” *° Petitioner finds no authority for the proposition

that these are the standards for disposition of a petition

for writ of certiorari.

26, Brief in Opposition at 1.

27. See Petition at 3, nn. 4 & 5.

28. Brief in Opposition at 2. See also Id. at 9.

29, See Petition at 4 n. 10.

30. See Brief in Opposition at 1 and 4.

8 Conclusion

CONCLUSION

For the foregoing reasons and those set forth in the

petition, Hartzell Propeller, Inc. respectfully prays the

Court to issue a writ of certiorari to review the judgment

of the United States Court of Appeals for the Third

Circuit. ¢

Respectfully submitted,

Ronaxp 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.