Petition — Lui Su Nai-Chao v. Boeing Co.

Supreme Court brief1983

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883-647

No. CLERK

ALEXANDER L. STEVAS,

Inu The ss

Supreme Court of the United States

OCTOBER TERM, 1983

Lu1 Su NAI-CHAO, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF LUI CHO-PON

DECEASED, ET AL.,

Petitioners,

VERSUS

THE BOEING COMPANY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

PETITION FOR CERTIORARI

OF COUNSEL: COUNCIL OF RECORD

FOR PETITIONERS:

David W. Robertson

727 East 26th Street Paul H. Dué

Austin, Texas 78705 Dué, Dodson, deGravelles,

(Area 512) 471-5151 Robinson & Caskey

One Maritime Plaza

(Post Office Box 3158)

Baton Rouge, LA 70802 (70821)

(Area 504) 383-8851

QUESTIONS PRESENTED

I. Whether a United States District Court has dis-

cretion to grant forum non conveniens dismissal (con-

signing American plaintiffs to the courts of a foreign

country) on the basis of the Court’s own administrative

problems, when the traditional “private interest” bal-

ancing process shows that the U.S. and foreign forums

are approximately equally convenient for the litigants.

II. Whether the United States’ interest in deterring

United States manufacturers and sellers from the

worldwide dissemination of dangerously defective prod-

ucts is a strong “public interest” factor favoring retain-

ing U.S. forum jurisdiction in actions against U.S.

manufacturers and sellers.

III. Whether American plaintiffs are entitled to a pre-

sumption favoring retention of jurisdiction by the

United States, when defendants are American corpora-

tions and the applicable law will be the law of the

United States whether the case is tried here or abroad.

LIST OF ALL PARTIES AS REQUIRED BY

SUPREME COURT RULE 21.1(b)

The undersigned counsel for Lui Su Nai-Chao,

et al., petitioners, certifies that the following were par-

ties to the proceedings below:

LUI SU NAI-CHAO, individually, as personal rep-

resentative of the estate of Lui Cho-Pon, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor child LUI YU-CHANG; LUI YU-

TON and LUI SON-JONG, surviving dependent major

children of the decedent, Lui Cho-Pon; LUI SHU-

SHING, LUI CHO-HEA, LUI CHO-YI and LUI

CHO-GI, surviving dependent siblings of the decedent

Lui Cho-Pon; LUI YEE-KOU, surviving dependent

parent of the decedent Lui Cho-Pon.

TSENG CHEN-CHENG, individually and as per-

sonal representative of the estate of Tseng Su-Jing;

TSENG PO-MING, TSENG PO-JEN, TSENG PO-

YONG, TSENG MEI and TSENG YO-JUNG, surviv-

ing dependent siblings of the decedent Tseng Su-Jing;

TSENG LENG-CHO, surviving dependent parent of

the decedent Tseng Su-Jing.

TSEN CHU-CHUN, individually, as personal rep-

resentative of the estate of Tsen Tsin Ching, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of the decedent’s dependent minor siblings;

TSEN CHEN-SHAI, TSEN CHEN-GEE and TSEN

WUEI-CHUN; TSEN CHEN-RONG and TSEN

CHEN-GA, surviving dependent siblings of the dece-

dent Tsen Tsin Ching; TSEN HWANG KWEI-SHO,

surviving dependent parent of the decedent, Tsen Tsin

Ching.

CHAI PIEI YU, individually and as personal rep-

resentative of the estate of Nei Jai-Bin; NEI JUA-FU,

NEI JUA-CHIN, NEI LEE-CHU and NEI MEI-

CHU, surviving dependent siblings of the decedent,

Nei Jai-Bin; NEI CHI-MON and NEI LEE SHEI-

JAU, surviving dependent parents of the decedent Nai

Jai-Bin.

CHEN WEI-CHING, individually and as personal

representative of the estates of Chen Cheng-An and

Chen Pin-Yong; CHEN YI-LI, CHEN YI-HUA,

iii

CHEN LI-YING, CHEN CHENG-TA and CHEN

CHENG-CHAN, surviving dependent siblings of the

decedent Chen Cheng-An; CHEN GIAN CHOU-

CHEO, surviving dependent parent of the decedent

Chen Cheng-An and surviving grandmother of the de-

cedent Chen Pin-Yong; CHEN YA-KAOU, surviving

dependent grandmother of the decedent, Chen Cheng-

An and as the surviving great grandmother of the dece-

dent Chen Pin-Yong.

LEE SHIH-HON, individually and as personal

representative of the estate of Lee Kou-Ling; LEE

MEI-LING and LEE CHIEN-CHEIH, surviving de-

pendent siblings of the decedent Lee Kou-Ling; LEE

LIN SHIU-CHEN, surviving dependent parent of the

decedent Lee Kou-Ling.

NEI CHUANG YUA, individually, as personal

representative of the estate of Nei Shi-Shue, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor children NEI JEN TON, NEI

CHUANG FUA, NEI JEN NA, NEI WAN CHIN and

NEI WAN TIN; NEI CHUN LIN, NEI SHI HO, NEI

WAN YEE and NEI TSAI, surviving dependent sib-

lings of the decedent Nei Shi-Shue; NEI WU KAN,

surviving dependent parent of the decedent Nei Shi-

Shue; NEI WEI YEN, surviving de, ¢ndent grand-

mother of the decedent Nei Shi-Shue.

LU CHEN CHOUN-MEI, individually and as per-

sonal representative of the estate of Lu Chang-Hon;

LU CHANG SHINN and LU SHIN-HEI, surviving

dependent siblings of the decedent Lu Chang-Hon; LU

WEN-TAO and LU SU-MEI, surviving dependent par-

ents of the decedent Lu Chang-Hon.

CHEN SU KWEN-SEI, individually and as per-

sonal representative of the estate of Chen Mei-Chi;

CHEN YU-YE, CHEN CHA-WEI, CHEN SHIANG,

CHEN CHIAR, CHEN YU-CHUN, CHEN YI-YU,

CHEN LING-JUNG, CHEN SUE-SHEN, CHEN

SUE-CHEN and CHEN SUE-YON, § surviving

dependent major children of the decedent Chen

Mei-Chi; CHEN MEI KUWI and CHEN MEI SHI,

surviving dependent siblings of the decedent Chen

Mei-Chi.

SOU CHOU-YEDO, individually, as personal repre-

sentative of the estate of Huang Cheng-Sung, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor child, HUANG YU-CHIN;

HUANG ROU and HUANG LI-RON, surviving depen-

dent major children of the decedent Huang Cheng-Sung;

HUANG CHIN-YU, HUANG CHIAI-SHAN,

HUANG CHIN FON and HUANG YU-CHEN, surviv-

ing dependent siblings of the decedent Huang

Cheng-Sung; HUANG PON-BEAN, surviving depen-

dent parent of the decedent Huang Cheng-Sung.

HSU LIN HSUEH-HSIA, individually and as per-

sonal representative of the estate of Hsu Chun-Yu;

HSU CHUN-HON, HSU CHUN-CHEN, HSU

PIN-CHEN and HSU WEN-CHIN, surviving depen-

dent siblings of the decedent Hsu Chun-Yu; HSU

CHAO-SHING and HSU LIN TONG-KENG, surviv-

ing dependent grandparents of the decedent Hsu

Chun-Yu.

WU LIN HSING TSU, individually and as per-

sonal representative of the estate of Wu Cheng-Lien;

WU CHIN-WEN and WU MING-CHIN, surviving de-

pendent major children of the decedent Wu Cheng-Lien;

WU SHAN-CHUAN and WU TUNG HSIU-YING,

surviving dependent parents of the decedent Wu

Cheng-Lien.

L. S. CHANG, individually, as personal represen-

tative of the estate of K. N. Lai, and as duly appointed

guardian ad litem, next friend and natural parent of her

minor child Y. J. LAI; LILY LAI, PETER CHANG,

C. Y. LAI, S. S. TU, LOBO LAI and Y. P. CHEN,

surviving dependent siblings of the decedent K. N. Lai;

Y. C. LAI and J. B. TSAI LAI, surviving dependent

parents of the decedent K. N. Lai.

LUI JOE JAU, individually, as personal represen-

tative of the estate of Chen Min Kai, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor children, CHEN JEN CHEI aid

CHEN JUN YIN; CHEN SHOE, CHEN MIN-LONG,

CHEN MIN-CHON and CHEN MIN-YAN, surviving

dependent siblings of the decedent Chen Min Kai;

CHEN CHUN HAU and CHEN KUO BAU, surviving

dependent parents of the decedent Chen Min Kai.

LEE TSON-JEN, individually and as personal rep-

resentative of the estate of Lee Jill Mann-Hwey; LEE

SHENG-YI and LEE SHENG-WEI, surviving depen-

dent siblings of the decedent Lee Jill Mann-Hwey; LEE

YU-CHI, surviving dependent parent of the decedent

Lee Jill Mann-Hwey.

LEE CHUN-HUI, individually and as personal

representative of the estate of Lee Chuang Ying-Yu;

LEE YEN-LING, LEE SHIN-YI, LEE YA-LING

and LEE CHU-LING, surviving dependent major chil-

dren of the decedent Lee Chuang Ying-Yu.

CHU CHAO-NAN, individually, as personal repre-

sentative of the estate of Chang Mei-Chu, and as duly

appointed guardian ad litem, next friend and natural

parent of his minor children CHU YUON-CHENG and

CHU YUON-YU; CHANG MEI-GEO, CHANG

MEI-YU, CHANG MEI-GYU, CHANG MEI-HAW,

CHANG MEI-HEIW, CHANG CHUAN-DEE and

CHANG KWEA-YING, surviving dependent siblings

of the decedent Chang Mei-Chu; CHANG YU-LANG

and CHANG CHEN CHAU-YUN, surviving depen-

dent parents of the decedent Chang Mei-Chu.

WANG TEN HWA, individually, as personal rep-

resentative of the estate of Hsu King Kwang, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor child HSU TWEI CHON; HSU

YAN JEN, HSU YUN CHU and HSU CHIN YUN,

surviving dependent major children of the decedent

Hsu King Kwang; HSU TEN HWA, HSU TEN SHOE,

HSU PUAN MEI, HSU GUN MEI and HSU JI MEI,

surviving dependent siblings of the decedent Hsu King

Kwang.

CHO SHU HEI, individually, as personal repre-

sentative of the estate of Chen Lin-Ho, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor child, CHEN YI-HON; CHEN GEE-

RONG, surviving dependent sibling of the decedent

Chen Lin-Ho; WU PEI-KIN and WU WONG YU-

SHIEH, surviving dependent parents of the decedent

Chen Lin-Ho.

LO KUEI-YING, individually, as personal repre-

sentative of the estate of Tsai Hon-Cheng, and as duly

appointed guardian ad litem, next friend and natural

vii

parent of her minor children, TSAI YI-HOE and TSAI

WU-HOA; TSAI KOUEN-MING, TSAI KOUEN-

CHING, TSAI YING-TA, TSAI KOUEN-CHEN,

TSAI LI-JEN, TSAI LI-JIOU, TSAI LI-SHING,

TSAI LI-CHEN and TSAI LI-FIN, surviving depen-

dent siblings of the decedent Tsai Hon-Cheng; TSAI

YONG MEI-CHU, surviving dependent parent of the

decedent Tsai Hon-Cheng.

KUO LEE KUEI MEI, individually, as personal

representative of the estate of Kuo Ji Chun, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children KUO MEI CHU, KUO

BEE JOE and KUO BEE JUN; KUO JIN SU and

KUO LIN YA YE, surviving dependent parents of the

decedent Kuo Ji Chun.

CHANG YU JONG, individually and as personal

representative of the estate of Chen Ho Chun; CHEN

JONG FONG, CHEN SU LIN, CHEN SU JWEI and

HSU CHEN CHUN-HON, surviving dependent sib-

lings of the decedent Chen Ho Chun; LEE TEN SOU

and CHEN YU HUEI, surviving dependent parents of

the decedent Chen Ho Chun; CHEN SHE TON and

CHEN KUO FONG, surviving dependent grandpar-

ents of the decedent Chen Ho Chun.

HUANG SEO SHOW-YEO, individually, as per-

sonal representative of the estate of Huang Jee-Shung,

and as duly appointed guardian ad litem, next friend

and natural parent of her minor children, HUANG

FON-JEN, HUANG SHAU-FUN, HUANG PA-YING

and HUANG CHI-ROUEI; HUANG SHE-CHAN and

HUANG MING-CHANG, surviving dependent siblings

of the decedent Huang Jee-Shung; HUANG PAN and

HUANG SEO-SOAN, surviving dependent parents of

the decedent Huang Jee-Shung.

HUNG TORNG JONG, individually and as per-

sonal representative of the estate of Hung Kong Long;

HUNG JING-MIN, HUNG SUE-MIN, HUNG SING

MEI, HUNG SHWU MEI, HUNG FUH MEI and

HUNG GUEY MEI, surviving dependent siblings of

the decedent Hung Kong Long; HONG HUANG YU-I,

surviving dependent parent of the decedent Hung Kong

Long.

HON WON YIN-JUEI, individually, as personal

representative of the estate of Hon Kong-Chi, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of their minor child HON JA-LUNG; HON

JA-HON, HON MING JEO, HON YI-SHUEIH, HON

JA-JOU and HON CHOEI-YEI, surviving dependent

major children of the decedent Hon Kong-Chi; WUNG

HON JA-SHU, HON RONG-SHEN, HON RONG-

KUO, HUANG HON MEI-NYU, CHEN HON MEI-

SHIEH and HON RONG-CHENG, surviving depen-

dent siblings of the decedent Hon Kong-Chi.

CHEN CHIU MEI, individually and as personal

representative of the estate of Ma Wen-Tong; MA

WU-HSIUNG, MA WEN-MING, MA .WEN-CHING,

MA WEN-CHENG, MA WEN-HO and MA SU-YU,

surviving dependent siblings of the decedent Ma

Wen-Tong; MA CHING-PIAO and MA LIN HSIU-

YUAN, surviving parents of the decedent Ma Wen-

Tong; MA CHANG PEI, surviving dependent grand-

parent of the decedent Ma Wen-Tong.

LIU SHOW CHING, individually, as personal rep-

resentative of the estate of Sun-Fun, and as duly ap-

pointed guardian ad litem. next friend and natural par-

ent of her minor child SUN YU-SU; SUN LEE-

HWUA, surviving dependent sibling of the decedent

Sun-Fun; SUN CHIH-GA and LIN KOEI, surviving

dependent parents of the decedent Sun-Fun.

WANG CHEN MEI FONG, individually, as per-

sonal representative of the estate of Wang Pi Hong,

and as duly appointed guardian ad litem, next friend

and natural parent of her minor children WANG AI

LING, WANG CHEN HWA, WANG HWEI JUN and

WANG SHAU JU; WANG SHIAN, surviving depen-

dent sibling of the decedent Wang Pi Hong; WANG TU

TOU, surviving dependent parent of the decedent

Wang Pi Hong.

CHEN LO HUI-YU, individually and as personal

representative of the estate of Chen Chu-Chou;

LESLIE LEE, CHEN YUNG-TSEN and JOSEPH

J.C. CHEN, surviving dependent major children of

the decedent Chen Chu-Chou.

BETTY SHU, individually, as personal represen-

tative of the estate of Dick Chiang and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor children, CHIANG CHEN FAUN and

CHIANG CHEN TUN; ERIC CHIANG, surviving de-

pendent sibling of the decedent, Dick Chiang; CHIANG

HON-SHING and LIEN CHIN PIN, surviving depen-

dent parents of the decedent Dick Chiang.

HSU CHING-CHIH, individually, as personal rep-

resentative of the estate of Hsu Ko Mei-How, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of his minor children HSU SHE-HEI, HSU

JA-TAI and HSU CHEN-YA; CHANG MEI-YEOU,

surviving dependent sibling of the decedent Hsu Ko

Mei-How; KO CHANG JIN-HO and HSU LIN

YA-TSAI, surviving dependent parents of the dece-

dent Hsu Ko Mei-How.

CHANG YU-CHIEF, individually and as personal

representative of the estate of Chang Sen; CHANG

CHEN-WU, CHANG MIEN, CHANG CHUAN,

CHANG SHU, CHANG LUN and CHANG SHUENG,

surviving dependent siblings of the decedent Chang

Sen; CHANG SHOU-CHEN, surviving dependent par-

ent of the decedent Chang Sen.

CHIANG CHING-TE, individually, as personal

representative of the estates of Cheng Po-Cheng,

Chiang Chan Jin and Chiang Chu Jen, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of his minor child CHIANG PAU LIN; CHOU

YOU YIN, surviving sibling of the decedents Cheng

Po-Cheng, Chiang Chan Jin and Chiang Chu Jen;

CHIANG WEI SHEN MEI, surviving parent of the

decedents Cheng Po-Cheng, Chiang Chan Jin and

Chiang Chu Jen; CHANG LEE CHIN and CHANG

CHIANG YUN MEI, surviving grandparents of the

decedents Cheng Po-Cheng, Chiang Chan Jin and

Chiang Chu Jen.

LO WEN-SHAN, individually, as personal repre-

sentative of the estate of Lo Shih-Chung, and as duly

appointed guardian ad litem, next friend and natural

parent of his minor children, LO CHIA-HUA, LO

DING-CHUNG and LO CHIA-HUI; CHING LI-

YUAN, surviving mother of decedent Lo Shih-Chung.

HUANG CHUNG-SHUNG, individually and as

personal representative of the estates of Kin Kow Yu,

Huang Yi-Jee and Huang Ing-Ling; KIN JAI-CHEN

and KIN TUNG KEI-CHIN, surviving dependent par-

ents of the decedent Kin Kow Yu and surviving grand-

parents of the decedents Huang Yi-Jee and Huang

Lin-Ling.

CHEN TIEN-TSENG, individually and as per-

sonal representative of the estate of Chen Shann-Kang;

CHEN SHANN-JI, CHEN CHING-CHIEN, CHEN

SHANN-JIUN and CHEN JING-YIH, surviving de-

pendent siblings of the decedent Chen Shann-Kang;

SHAN NIEH CHYN-FENN, surviving dependent

parent of the decedent Chen Shann-kang.

CHANG HSIU YU, individually, as personal rep-

resentative of the estate of Lin Huei-Tein, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children LIN HSIN-MIN and LIN

YI-CHIA; LIN CHIN-SHENG and LIN WANG JUI,

surviving dependent parent of the decedent Lin

Huei-Tein.

CHEN YUAN SHUANG, individually and as per-

sonal representative of the estate of Chen Jiei Ming;

CHEN JIEI WEN, surviving dependent sibling of the

decedent Chen Jiei Ming; SHA MEI-MEE, surviving

dependent parent of tiie decedent Chen Jiei Ming.

HSU PI-LING, individually, as personal represen-

tative of the estate of Hsiung Ching-Li, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor children HSIUNG Hs.AO-CHING,

HSIUNG HSIAO-MEI and HSIUNG CHIH-HAO;

HSIUNG LU-KUEI and LEE SHU-FANG, surviving

dependent parents of the decedent Hsiung Ching-Li.

LIN YU-HWA, individually, as personal represen-

tative of the estate of Chen Jin Hwa, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor child CHEN YU-HONG; CHEN

SHOE-YIN, CHEN SHOE-SEA, CHEN LEE-LIU,

CHEN LEE-JONG and CHEN YIN-NEW, surviving

dependent siblings of the decedent Chen Jin Hwa;

CHEN HSIAN and CHEN LEE YU KWEI, surviving

dependent parents of the decedent Chen Jin Hwa.

HUNG TWEI CHI, individually, as personal rep-

resentative of the estate of Yang Yi-Cheng, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children YANG SHIN YE and

YANG SHIN JEN; YANG CHIEN-HO, YANG

HUI-YUN, YANG YI-HON, YANG YI-CHANG and

YANG YI-FANG, surviving dependent siblings of the

decedent Yang Yi-Cheng; YANG YU-PEN and YANG

WEI YA-MEI, surviving dependent parents of the de-

cedent Ya.z Yi-Cheng.

TSENG CHOU KIN-JUN, individually and as per-

sonal representative of the estate of Tseng K. Y.;

TSENG WEN-SHANG, TSENG WEN-KON, TSENG

WEN-LIUNG and TSENG SHEU-FUN, surviving de-

pendent major children of the decedent Tseng K. Y.;

TSENG MU-HSIANG, TSENG JIH-HSIANG,

TSENG KUEI-HSIANG, TSENG HO-HSIANG,

TSENG CHIA-SUNG, TSENG CHIA-YAN and

HUNG TSENG MEI-CHU, surviving dependent rela-

tives of the decedent Tseng K. Y.; TSENG YONG-

KOY, surviving dependent mother of the decedent

Tseng K. Y.

xiii

SING YU-CHING, individually, as personal repre-

sentative of the estate of Sing Ning-Hui, and as duly

appointed guardian ad litem, next friend and natural

parent of his minor children SING WEI-JUN and

SING MON-J''N; SING NING-GUAN and SING

WEI-CHIN, surviving dependent siblings of the dece-

dent Sing Ning-Hui; SING LI SHO-CHI, surviving de-

pendent parent of the decedent Sing Ning-Hui; YANG

GEE-SHE and WON SHEN-HO, surviving dependent

grandparents of the decedent Sing Ning-Hui.

CHENG CHO SHU-CHI, individually, as personal

representative of the estate of Cheng Chen-Chu, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of the minor children CHENG PO-YU,

CHENG ZEE-YU and CHENG WEN-YU; CHENG

SHU-SING, CHENG CHEN-YUN and CHENG

CHEN-SHAW, surviving dependent siblings of the de-

cedent Cheng Chen-Chu; CHENG CHUN-MU and

CHENG HUANG HSING, surviving dependent par-

ents of the decedent Cheng Chen-Chu.

WANG LIN JU-CHU, individually, as personal

representative of the estate of Wang Ming-Fu, and as

duly appointed guardian ad litem, next friend and nat-

ural parent of her minor child, WANG CHIA-YEH;

WANG CHIA-SHENG, surviving dependent major

child of the decedent Wang Ming-Fu; TSAI-TZE, sur-

viving dependent relative of the decedent, Wang

Ming-Fu.

LIAO TI-CHUAN, individually and as personal

representative of the estate of Liao Han-Ghang; LIAO

HAN-CHAO, LIAO HAN-CHIU, LIAO KUANG-

MEI, LIAO AI-MEI, LIAO YU-MEI and LIAO

Xiv

CHING-MEI, surviving dependent siblings of the dece-

dent Liao Han-Ghang; LIN LIEN-FEN, surviving de-

pendent parent of the decedent Liao Han-Ghang.

CHEN SHIEU-ING, individually, as personal rep-

resentative of the estate of Wu William G., and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children WU CHEN-YEN, WU

YEO-TENG and WU YEO-AN; WU CHI-CHON,

WU WEI-BOU, WU WEI-KAN, WU WEI-SHEN,

LUI WU SHOU SHEI and CHEN WU SHOU-LIN,

surviving dependent siblings of the decedent Wu Wil-

liam G.; WU CHOU-CHING and WU CHUNG

YU-SHIEN, surviving dependent parents of the dece-

dent Wu William G.

YEN SHOE CHIN, individually, as personal rep-

resentative of the estate of Lin Shen Yuan, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children, LIN MUN YIN and LIN

JUN JONG; LIN CHEN JEN, LIN SU LIN, LIN SU

JIN, LIN SU YUAN, LIN HONG CHUNG and LIN

SHEN JIN, surviving dependent siblings of the dece-

dent Lin Shen Yuan; CHENG JIN LIEN, surviving

dependent parent of the decedent Lin Shen Yuan.

YIN LIN CHOW, individually and as personal rep-

resentative of the estate of Thomas S. K. Chow; RICH-

ARD CHOW, individually and as the duly appointed

guardian ad litem, next friend and natural parent of his

minor children LAUREN CHOW, RAYMOND CHOW

and KAREN CHOW; MARY CHOW, surviving depen-

dent major child of the decedeut Thomas S. K. Chow.

TAN FAN SHAW-CHI, individually, as personal

representative of the estate of Tan Heh-Chin and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor child TAN IANG-PING.

HSU LIANG-CHUAN, individually and as per-

sonal representative of the estates of Ho Choa-O, Hsu

Kin-Ling and Hsu Eng-Ling.

LEE CHU YA-PING, individually, as personal

representative of the estate of Lee Hui-Shaing, and as

duly appointed guardian ad litem, next fricnd and natu-

ral parent of her minor children LEE SHAN and LEE

JIN; LEE HAN and LEE BIN, surviving dependent

major children of the decedent Lee Hui-Shaing; LEE

WAI-LAN and LEE WAI-CHIN, surviving dependent

siblings of the decedent Lee Hui-Shaing; NG CHIN-HO,

surviving dependent parent of the decedent Lee Hui-

Shaing.

SHEN HO-TZU, individually, as personal repre-

sentative of the estate of Wu Chien Teh, and as guard-

ian ad litem, next friend and natural parent of her

minor children WU HON-CHIH, WU MON-HEI and

WU HON-SHOU.

KO YUEH-ING, individually and as personal rep-

resentative of the estate of Tung Leih-Wei; PAULINE

TUNG DUBOIS, TUNG CHENG-LIN, TUNG SU-

LIN and TUNG CHIANG-LIN, surviving dependent

major children of the decedent Tung Leih-Wei; TUNG

LEIH-TOU, surviving dependent sibling of the dece-

dent Tung Leih-Wei; NEE YU, surviving dependent

parent of the decedent Tung Leih-Wei.

CHEN LIN-BEE, individually, as personal repre-

sentative of the estate of Chen Tung-Sun, and as duly

xvi

appointed guardian ad litem, next friend and natural

parent of the minor children CHEN HWEI-MEI and

CHEN CHIN-MUN; CHEN TON-SUAN; CHEN

TON-SHOW, CHEN TON-YEE and CHEN HOW,

surviving dependent siblings of the decedent Chen

Tung-Sun; CHEN SUAN-YAN, surviving dependent

parent of the decedent Chen Tung-Sun.

WEI HSU CHU-JUN, individually and as personal

representative of the estate of Wei Hon-Chen; WEI

HUNG-CHU, WEI HUNG-YU and WEI TIN-LIN,

surviving dependent siblings of the decedent Wei

Hon-Chen.

WU CHIN-KOU, individually, as personal repre-

sentative of the estate of Wu Chun-Mei, and as duly ap-

pointed guardian ad litem, next friend and natural

grandparent of his minor grandchildren CHANG

CHANG-HSIEN and CHANG KUN-HUI; WU MING

SHUN, WU MING RE, WU MING KIN-FU, WU

MING I and WU SU-HEI, surviving dependent sib-

lings of the decedent Wu Chun-Mei; WU KEN, surviv-

ing dependent relative of the decedent Wu Chun-Mei.

CHEN JENG}#EI, individually, as personal repre-

sentative of the te of Chen Chei-Po, and as duly ap-

pointed guardian 4d litem, next friend and natural par-

ent of her minor child CHEN FOU-MEI; CHEN JEN-

CHAN, CHEN JEN-JA and CHEN JOU-CHU, sur-

viving dependent major children of the decedent Chen

Chei-Po; CHEN CHEI-TO and CHEN CHING, surviv-

ing dependent siblings of the decedent Chen Chei-Po;

CHEN MING-ER, surviving dependent parent of the

decedent Chen Chei-Po.

HUANG LIU SHOEI-LII, individually, as per-

XVii

sonal representative of the estate of Huang Lung-Chou,

and as duly appointed guardian ad litem, next friend

and natural parent of her minor children HUANG

CHUAN YI, HUANG CHUAN MON and HUANG

LI-FONG; HUANG TAI-JOH, HUANG CHUNG

NON, HUANG CHUNG NAN and LIN HUANG

HSIU-MIN, surviving dependent siblings of the dece-

dent Huang Lung-Chou; HUANG JIANN-CHANG and

HUANG CHANG-FONG, surviving dependent parents

of the decedent Huang Lung-Chou; LIU CHING-TIEN,

LIU LIN-CHO and HUANG WEOU, surviving depen-

dent relatives of the decedent Huang Lung-Chou.

CHUNG HENG-TEH, individually, as personal

representative of the estate of Chung Lin-Ying, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of his minor children CHUNG CHUN

HSIUNG and CHUNG CHUN-MING; CHUNG

CHUN-LANG and CHUNG LIN-HUI, surviving de-

pendent siblings of the decedent Chung Lin-Ying;

CHUNG CHAO-WEI, surviving dependent parent of

the decedent Chung Lin-Ying; CHUNG KO LIEN-TUI,

surviving dependent grandparent of the decedent

Chung Lin-Ying.

LIN HUNG MEI-LENG, individually, as personal

representative of the estate of Lin Wu-Yi, and as duly

appointed guardian ad litem, next friend and natural

parent of her minor children LIN WEN JI, LIN

SAN-PIN and LIN LIN-WEN; LIN TE-CHIN, LIN

CHI-FA, LIN CHIN-CHON, LIN CHIN-LUNG, LIN

PEI-FON and LIN CHIN-HWA, surviving dependent

siblings of the decedent Lin Wu-Yi.

CHANG KUN-YUAN, individually, as personal

xviii

representative of the estate of Shieh Ta-Ping, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor child SHIEH CHUNG-TSE;

NIIOKA TAMAMI, surviving dependent sibling of the

decedent Shieh Ta-Ping; MIYAUCHI HIKARI and

MIYAUCHI KANAKO, surviving dependent parents

of the decedent Shieh Ta-Ping.

HUNG YU-SHIN, individually, as personal repre-

sentative of the estate of Hung Mei-Chu, and as duly

appointed guardian ad litem, next friend and natural

parent of his minor children HUNG JUA-FUN, HUNG

MING-YI and HUNG JUN-HON; HUNG TIN-MEI,

surviving dependent parent of the decedent Hung

Mei-Chu; HUNG CHANG SU, surviving dependent

grandparent of the decedent Hung Mei-Chu.

YEN CHEN-PIEN, individually and as personal

representative of the estate of Yen Jen-Chun; YEN

SHE-SHON, YEN SHE-CHUNG, YEN SU-CHU and

YEN SU-MEI, surviving dependent major children of

the decedent Yen Jen-Chun; YEN CHEN-HOEI, YEN

KEI, YEN JOUEI, YEN CHI-CHE, YEN CHOU and

YEN CHON-NOUN, surviving dependent siblings of

the decedent Yen Jen-Chun; YEN SON-SOU and YEN

FU-HEN, surviving dependent parents of the decedent

Yen Jen-Chun.

HUNG CHUN HEI-MEI, individually, as personal

resentative of the estate of Sun Liu Shou-Wuei, and as

duly appointed guardian ad litem, next friend and natu-

ral parent of her minor children HUNG JEE-CHUNG

and HUNG DOU-KOUNG; HO YEN-TEN, individu-

ally and as duly appointed guardian ad litem, next

xix

friend and natural parent of her minor child HUNG

YU-SEN; HUNG FU, HUNG MIN-TAN, HUNG

ING-ING and HUNG HWUA, surviving dependent

siblings of the decedent Hung Ming-Yi; HUNG LIU

YU, surviving dependent mother of the decedent Hung

Ming-Yi.

SUN LIU HUANG, individually, as personal rep-

resentative of ‘he estate of Sun Liu Shou-Wuei, and as

duly appointed guardian ad litem, next friend and natu-

ral grandparent of her minor grandchild SUN LIU

CHIH-HAN; SUN LIU WUAN-KEE, SUN LIU

SHOU-O and SUN LIN SHOU-CHIN, surviving de-

pendent siblings of the decedent Sun Liu Shou-Wuei.

SOO JIN SZE, individually, as personal represen-

tative of the estate of James Nee Sze, and as duly ap-

pointed guardian ad litem, next friend and natural par-

ent of her minor children, Eric Sze, Steve Sze and

Angela Sze; SZE CHENG WEI and SZE CHENG

BENG, surviving major dependent siblings of the dece-

dent James Nee Sze.

MARGARET RIPPIN, surviving widow and per-

sonal representative of the estate of Dennis Rippin;

JULIAN RIPPIN; STANLEY RIPPIN and

ANDREW RIPPIN, surviving dependent major chil-

dren of the decedent, Dennis Rippin.

The following additional parties although not par-

ties to the proceedings below are claimants and thus in-

terested parties:

TAI LI CHEN, individually, as surviving spouse

of Liao Han-Ghang, and as duly appointed guardian ad

litem, next friend and natural parent of her minor child,

LIAO PEI-WEN;

YING CHIUEN WANG, surviving father of dece-

dent, John Wang; Y. L. WANG, surviving mother of

decedent John Wang; LINDA WANG and NELLIE

LIN, surviving major siblings of the decedent, John

Wang.

FRANCES MARRS, individually, as surviving

spouse, and as personal representative of the estate of

Gerald Brooks Marrs, Jr.

—Plaintiffs-A ppellants-Petitioners

THE BOEING COMPANY

AND UNITED AIRLINES, INC.,

—Defendants-Appellees-Respondents

fivk 4 hete Te

DAVID W. ROBERTSON

Attorney for Plaintiffs-Appellants-

Petitioners

Xxi

TALLE OF CONTENTS

Page

I PE i sGtesccslesvanbasdserews i

List of all Parties as Required by ;

Supreme Court Rule 21.1(b)................. 1

I oc cehce bbksscnbnwusoneeaeas XX]

PE UNIO, co oa kav dv veces eecdccseecdn XXIV

EE i 2d ic nds pabes ovdenseatictseues 2

Os ig Pai cae Fi phn whe ue aR Lien 2

Statutes and Treaties Involved ..............05- 2

I TN OD nee cn bien sess vandewnbee 2

Reasons for Granting the Writ ................. 7

I. Certiorari Should be Granted to Estab-

lish That a United States District Court

Lacks Discretion Under “Forum Non

Conveniens” to Dismiss Cases Because

of Its Own Congested Docket and to

Resolve Conflict Among the Circuits

OR: Se EEE cane haces cs susbwhanabeues 7

A. Piper Aircraft Co. v. Reyno, And

Its Use by the Courts Below ....... 7

B. Gilbert, Koster, Piper, and the

PT Sov ta tis oe cakeeas ees 12

C. Conflict Among the Circuits ........ 16

II. Certiorari Should be Granted to

Establish That There is a United States

Interest, Entitled to Weight in Forum

Non Conveniens Determinations, in

Deterring U.S. Manufacturers and

Sellers From the Worldwide Dissem-

ination of Dangerously Defective

POE 65 Kos aw anh eee eh cemenwRee 19

III. Certiorari Should be Granted to Clarify

the Effect of the Piper Decision on the

Presumption Traditionally Accorded

U.S. Plaintiffs’ Choice of a U.S.

xxii

Page

Forum, and to Resolve Conflicts

Among the Circuits on That Issue...... 21

BPs. SAND sc acho oka Caieen eens 24

CE sais Vier scvass scbacsaunwenmenneaee 27

Appendix A — United States Court of Appeals,

Ninth Circuit — Opinion ...........csccccceees 28

Appendix B — United States District Court,

N.D. California —- Opinion and Order......... 41

Appendix C — Judgment of Dismissal

St Seay SNE ais Secs bees cennsunecarse nite 72

Appendix D- Court of Appeals Denial

OF FL Si case dvcvackrodesevsesncsneuel 75

Appendix E — Excerpts from Statutes

RE Sg voy he coececesskidenesvavaianw 76

Federal Aviation Act, 49 U.S.C. §§ 1423,

BE Me iver nckiusancegeuseneciens 76

Taiwan Relations Act, Pub. Law 96-8 (1979):

Sec. 4(b)7, 93 Stat 15, 16 [22 U.S.C.

§ 3303(b)(7)];

Sec. 4(c), 93 Stat. 16 [22 U.S.C. § 3303(c));

Sec. 15(2), 93 Stat 20, 21 [22 U.S.C.

Treaty of Friendship, Commerce and

Navigation Between the United States

of America and the Republic of China

COREE, RUG. Waa 8 6 inccccdsievecceio bance 76

Appendix F - List of U.S. Citizen and U.S.

Permanent Resident Claimants .............. 87

Appendix G — Marron Letter, 4/8/88,

OO FE NEE bbc Sncsadedccnened}aankwnree 90

Appendix H - Other Fertinent Correspondence

from and to the Ninth Circuit ............... 94

Office of the Clerk to All Counsel,

DE Es, Co Us checteuceepubsvenstauees 94

Dué, Dodson, deGravelles, Robinson

& Caskey to Senior Deputy Clerk,

Bent Dy Des « < ving cc pecsasentecereeeaene 94

xxiii

Marron, Reid & Sheehy to Clerk,

TUER auc abscwicccccsccccccs 94

Dué, Dodson, deGravelles, Robinson

& Caskey to Senior Deputy Clerk,

EGE c ab eencesbevcscccccens 94

Appendix I- Plaintiffs’ Brief Seeking CA9

TSE eee 106

Appendix J - Airworthiness Directive........... 120

Appendix K - Excerpts from Boeing Service

TEETER MCRR UGG caeccccccscccccccccs 127

Appendix L - Boeing Affidavit (E.R. 388)

(re all Witnesses in Seattle) ..............0.. 155

Appendix M - Wang and Chow Affidavits ....... 157

XxXiv

TABLE OF AUTHORITIES

Cases: Page

Abiaad v. General Motors Corp., 538 F. Supp.

587, 541 (E.D.Pa. 1982) .......cceeccceeeees 4

Alcoa Steamship Company, Inc. v.

M/V Nordic Regent, 754 F.2d 147, 154-58,

(2d Cir.) (en banc), cert. denied, 449 U.S.

800, 10) S. Ct. B48 (1SGO) . .nccccccccccccces 22

American Rice, Inc. v. Arkansas Rice Growers,

701 F.2d 408, 417 (Sth Cir.

SDs boa vaWecscedeasasdervacds 14, 16, 17, 21, 23

Bailey v. Dolphin International, Inc., 797 F.2d

1268, 1274 (5th Cir. 1983) ............ 14, 16, 17

Chang v. Northwestern Memorial Hospital,

506 F. Supp. 975 (N.D.Tll. 1980)...... 14, 16, 17

deOliveira v. Delta Marine Drilling Co.,

707 F.2d 843, 845 (5th Cir. 1983) ..... 14, 16, 17

Founding Church of Scientology v. Verlag,

537, F.2d 429, 435 (D.C. Cir. 1976) ......... 21

Gahr Development v. Nedlloyd Lijnen, B.V.,

542 F. Supp. 1224, 1227 (E.D. La.

rea RIE Tene BYRNE 4) 14, 16, 17

Gulf Oil Corporation v. Gilbert, 330 U.S. 501,

508, 67 S. Ct. 839, 843 (1947).......... 12, 17, 18

Koster v. Lumbermens Mutual Casualty Co.,

330 U.S. 518, 67 S. Ct. 828 (1947) . 12, 16, 17, 22

Lake v. Richardson-Merrell, Inc., 538 F. Supp.

252 (N.D. Ohio 1982) .............. 14, 16-18, 21

La Seguridad v. Transytur Line, 707 F.2d

1304, 1310 (11th Cir. 1988) ....... cass 14, 16, 17

Lehman v. Humphrey Cayman, Ltd., 713

F.2d 339 (8th Cir. 1983)............ 13-17, 21, 22

Macedo v. Boeing Company, 693 F.2d 683,

Seer Cate Cale ROME see vcwccccevecoses 3, 13-17, 23

Nalls v. Rolls-Royce, Ltd., 702 F.2d 255

Gs EA. MUUMD Koncccvbcvicbuensbantuceeun 23

XXV

Cases: Page

Nebenzahl v. Credit Suisse, 705 F.2d 1139

TE . 0 olesuks Ulu CheseLw routed 22

Pain v. United Technologies Corp., 637 F.2d

775, 791-92 (D.C. Cir. 1980), cert. den.,

454 U.S. 1128, 102 S. Ct. 980 (1981) ........ 6

Paper Operations Consultants International

Ltd. v. S/S Hong Kong Amber, 513 F.2d

ig Oe OE GANS NTOD occ vnsccenesvatsoccs 6, 9

Perusahaan Umom Listrik Negara Pugat v.

Tel Aviv, 711 F.2d 1231, 1232, 1239, 1241

eS gf ek A eee eee ee 17

Piper Aircraft Co. v. Reyno, 454 U.S. 235,

260-61, 102 S. Ct. 252, 268

DER che dS ote ba ede 4-9, 11-13, 16, 17, 19-22, 24

Raffaele v. Compagnie General Maritime. S.A.,

707 F.2d 395, 398-99 (9th Cir.

Rte ib acer ceketccdusecsaken 14, 16, 17, 23

Swift & Company Packers v. Compania

Colombiana del Caribe, 339 U.S. 684, 697,

Te ee Ce BRE, GED CRI) oc cc cececcenscccnas 22

Vaz Borralho v. Keydril Co., 696 F.2d 379,

EE SN ea cb cee ccnsenevenves 14, 16, 17

Statutes and Treaties:

Taiwan Relations Act, Pub. Law 96-8 (1979):

Sec. 4(b)7, 93 Stat. 15, 16 [22 U.S.C.

§ 3303(b)(7)];

Sec. 4(c), 93 Stat. 16 [22 U.S.C. § 3308(c)];

Sec. 15(2), 98 Stat. 20, 21 [22 U.S.C.

RN a4 scaly Cc de ern naeet 2

Treaty of Friendship, Commerce and Navigation

Between The United States of America

and the Republic of China, 63 Stat. 1300,

1305-1306 (1948), Art. VI, § 4 .............. 14

Federal Aviation Act, 49 U.S.C. §§ 1423, 1425,

DE C Cwivscviecéows behhvaest exeakaaat 5

XXVi

Cases: Page

Articles:

“Forum Non Conveniens and American Plaintiffs

in the Federal Courts,” 47 U. Chi. L. Rev.

Se 2) cn Dv uewapecbaceneeararancéus 22

“Forum Non Conveniens and Foreign Plaintiffs

in the Federal Courts,” 69 Geo. L.J. 1257,

RED cuir na piwestaasadoseune beeas 15

Friendly, “Indiscretion About Discretion,”

31 Emory L.J. 747 (1982) .... 8, 9, 11, 16, 18, 19

“The Convenient Forum Abroad Revisited:

A Decade of Development of the Doctrine

of Forum Non Conveniens in International

Litigation in the Federal Courts,”

ce ee ee 10

No.

In The

Supreme Court of the United States

OCTOBER TERM, 1983

Lu1 Su NAI-CHAO, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF LUI CHO-PON

DECEASED, ET AL.,

Petitioners,

VERSUS

THE BOEING COMPANY, ET AL.

Respondents.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

PETITION FOR CERTIORARI

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Lui Su Nai-Chao, et al., petitioners, pray that a

writ of certiorari issue to review the decision of the

United States Court of Appeals for the Ninth Circuit.

That decision upheld the forum non conveniens dismiss-

al of petitioners’ and related wrongful death actions

against United States corporations based on violations

of United States law.

OPINIONS BELOW

Court of Appeals opinion: Sub. nom: Cheng v. Boe-

ing Co., 708 F.2d 1406 (9th Cir. 1983).

District Court opinion: Nai-Chao v. Boeing Co.,

555 F. Supp 9 (N.D. Cal. 1982).

JURISDICTION

The decision of the Court of Appeals was rendered

on June 20, 1983. That Court denied a timely petition

for rehearing on July 21, 1983 (see Appendix D, p. 75).

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES AND TREATIES INVOLVED

The following excerpts from statutory and treaty

provisions are reproduced verbatim in Appendix E,

p. 76:

Federal Aviation Act, 49 U.S.C. §§ 1423, 1425,

1428-1430.

Taiwan Relations Act, Pub. Law 96-8 (1979):

Sec. 4(b)7, 93 Stat. 15, 16 [22 U.S.C. § 3303(b)(7)];

Sec. 4(c), 93 Stat. 16 [22 U.S.C. § 3303(c)];

Sec. 15(2), 93 Stat. 20, 21 [22 U.S.C. § 3314(2)].

Treaty of Friendship, Commerce and Navigation

Between The United States of America and the Repub-

lic of China (1948), 63 Stat. 1300, 1305-1306, Art. VI,

§ 4,

STATEMENT OF THE CASE

On August 22, 1981, a Boeing 737 jetliner, Serial

# B-2603, exploded in midair at 22,000 feet over

Taiwan, killing 104 passengers and six crew members.

Four of the deceased passengers were U.S. citizens.’

The plane was operated by Far Eastern Air Transport

Corporation (“FEAT”), a Taiwanese corporation. It

was on a domestic flight within Taiwan.

Petitioners are 514 personal representatives and

survivors? of 76 deceased passengers who sought

wrongful death recovery in the United States District

Court for the Northern District of California. There are

' The Trial court mistakenly found that only one passenger

was an American citizen. 555 F. Supp. at 10. This mistake was

based on erroneous representations by defendant, who repeated

the error in their appellate brief. These representations were not

corrected by defendants until Boeing’s April 8, 1983, letter to the

9th circuit. (Appendix G, p. 90).

The four American passengers were Richard Mark Clowes,

Harry Grossman, Frank Servin, and Gerald Marrs, Jr. Clowes’

parents’ suit was part of this action. Grossman’s widow and chil-

dren also sued in the United States District Court for the North-

ern District of California, but this suit was not consolidated with

the other litigation. Instead, counsel stipulated to be bound by the

result of the consolidated cases. Servin’s and Marrs’ widows sued

in California state court. Boeing’s defense of these suits without

asserting forum non conveniens is highly significant. (The Marrs

suit was brought after the appeal in the consolidated cases but be-

fore oral argument.)

On November 23, 1982, the 7th Circuit Court of Appeals de-

cided Macedo v. Boeing Co., 693 F.2d 688, reversing forum non

conveniens dismissal of air crash litigation principally because of

the presence of American plaintiffs and decedents. When that

opinion came out, Boeing made a concerted effort to settle the

American citizen claims in this litigation, and four days before oral

argument in the Ninth Circuit informed the Court in the aforemen-

tioned 4/8/83 letter of the settlements that had been achieved.

(Appendix G, p. 90). Ninth Circuit’s conclusion that “all California

state litigation arising out of this aircrash has been settled or dis-

missed,” 708 F.2d at 1412, however, was erroneous. The Marrs

claim is still pending.

* The enumeration of plaintiffs in this Petition includes repre-

sented minors designated as such in the pleadings.

still 9 pending claims brought by U.S. citizens and 12

pending claims brought by U.S. permanent residents.*

Defendants in these actions are two United States

corporations,‘ The Boeing Company (“Boeing”) and

United Airlines, Inc. (“United”)*. Jetliner B-2603 ex-

ploded because cracks in the hull of the plane caused its

body to rupture under pressurization.* The Federal

Aviation Administration documented that 154 Boeing

737 planes in commercial airline operations in the U.S.

and abroad had 237 instances of similar defects.” Boeing

manufactured jetliner B-2603 and sold it to United in

1969. United sold it and other 737’s to FEAT in 1976.

Before the sale to FEAT, both Boeing and United

*> To the extent that plaintiff's citizenship and residency are

significant to forum non conveniens determinations, there is no

basis for distinguishing between American citizens and permanent

resident aliens. Abiaad v. General Motors Corp., 538 F. Supp.

537, 541 (E.D.Pa. 1982). See also Piper Aircraft Co. v. Reyno, 454

U.S. 235, 256, 102 S.Ct. 252, 266, n. 23 (1981) (“citizens or resi-

dents deserve somewhat more deference. . . .”)

The U.S. citizen and U.S. permanent residents are identified

in Appendix F. Most, but not all, were identified in the exchange

of correspondence submitted to the Ninth Circuit and contained in

Appendix F.

The Ninth Circuit’s statement that there were only seven

U.S. citizens and four U.S. permanent resident claimants, 708

F.2d at 1408, was wrong. Before the settlements referred to in

footnote 1, there were at least an additional six U.S. citizen claim-

ants.

“In some of the companion cases, FEAT was also a defen-

dant.

* Boeing and United were both incorporated in Delaware.

Boeing’s principal place of business is Seattle; United’s is Chicago.

* 708 F.2d at 1408.

"Id.

knew of the “cracking” defect in this and other planes.*

On the basis of these facts, petitioners asserted that

Boeing and United are liable for violations of the Fed-

eral Aviation Act, 49 U.S.C. §§ 1423, 1425, 1428-1430,

for negligence, and on the basis of the American law of

strict liability in tort for defective products.

Defendants moved the district court to dismiss

these cases on the basis of forum non conveniens, con-

tending these cases should be tried in Taiwan. The dis-

trict court refused to permit plaintiffs to conduct any

discovery directed to the forum non conveniens issues,

and granted defendants’ motion. The court said Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252

(1981), “mandates the dismissal of these actions.” * It

found support in Piper for: (1) emphasis on the court’s

need to control its own docket is the first of the “public

interest” factors to be considered in the forum non con-

veniens balancing process;'® (2) rejecting petitioners’

argument that the strong United States interest in de-

terring U.S. manufacturers from the worldwide distri-

bution of dangerously defective products was a factor

justifying retention of jurisdiction;"' (3) de-emphasizing

the importance of the presence of United States plain-

tiffs in this action.'? The district court ultimately relied

on its own crowded docket as the factor that caused

* 555 F. Supp. at 12, n. 4. In addition, the Court of Appeals

relied on Piper as confining appellate review to a cursory search

for a “clear abuse of discretion.”

* 555 F. Supp. at 11; emphasis added. The Court also stated:

“Reyno is dispositive of Boeing’s motion to dismiss. . . .” Jd. at 13.

" Id. at 20.

* Id.

“the balance [to tip] decidedly against the plaintiffs’

choice of forum,”'* holding:

“(Defendants have satisfied the [forum non conve-

niens] standard... by making a ‘clear showing’

that ‘trial in the chosen forum [is] inappropriate be-

cause of considerations affecting the court’s own

administrative and legal problems,’ and thus it is

not necessary for defendants to establish ‘such op-

pression and vexation * * * as to be out of propor-

tion to the plaintiff's convenience.’ ”'*

The Court of Appeals affirmed the trial court’s

denial of all discovery.'* It affirmed the trial court’s dis-

missal of these actions on the view that the Piper

decision limits review to a “clear abuse of discre-

tion” standard.'* The Court of Appeals expressly ap-

proved forum non conveniens dismissal, “even when

the private conveniences of the litigants are nearly in

balance,” provided the district court has found “that re-

tention of jurisdiction would be unduly burdensome to

the community... .”"’

"9 Jd. at 19.

‘4 Jd. at 21-22, quoting in part from Paper Operations Consul-

tants International Ltd. v. S/S Hong Kong Amber, 513 F.2d 667,

670 (9th Cir. 1975).

‘708 F.2d at 1412. The Court of Appeal stated that plaintiff

“ordinarily” should be permitted limited discovery and not be

forced to rely on defendants’ affidavit, but found no “abuse of dis-

cretion.”

* Id. at 1409.

‘7 Id. at 1411, quoting from Pain v. United Technologies

Corp., 637 F.2d 775, 791-92 (D.C. Cir. 1980), cert. den., 454 U.S.

1128, 102 S. Ct. 980 (1981).

REASONS FOR GRANTING THE WRIT

I. Certiorari Should be Granted to Establish That a

United States District Court Lacks Discretion Under

“Forur.: Non Conveniens” to Dismiss Cases Because

of its Own Congested Docket and to Resolve Con-

flict Among the Circuits on This Point.

Both courts below thought Piper Aircraft Co. v.

Reyno, supra, supports central emphasis on the

crowded docket of the federal court as a primary factor

supporting forum non conveniens dismissal.'* This ap-

proach yields an unjust result in the present case,'* and

signals confusion about the meaning of the Piper deci-

sion that only this Court can correct. Certiorari should

be granted to correct this mistaken application of Piper

by an influential Court of Appeal, and to resolve con-

flict with the courts of other circuits. The issue is the

applicability of a legal doctrine that can totally deny

plaintiffs a hearing on the merits. The conflict and con-

fusion are not likely to be eliminated by further litiga-

tion in the lower courts, because the difficulties inhere

in the Piper opinion itself.

A. Piper Aircraft Co. v. Reyno,

And Its Use by the Courts Below

Piper was an action by Scottish plaintiffs for

wrongful deaths of Scottish nationals occurring aboard

a small charter aircraft in Scotland. Defendants were

the American manufacturers of the plane and propeller.

'* 708 F.2d at 1409.

The official British investigation of the crash found no

product defects, and pointed to pilot error as the cause

of the crash.” Litigation was ongoing in Britain against

the pilot’s estate, the owner, and the operator of the

aircraft. The district court dismissed the action, and the

Court of Appeals for the Third Circuit reversed. Cer-

tiorari was granted in Piper on one point only—

whether the Court of Appeals was wrong in concluding

that forum non conveniens dismissal is never appropri-

ate when the law of the alternative forum is less favor-

able to the plaintiff. All seven Justices participating in

Piper agreed that the Third Circuit should be reversed

on that point.

Over three dissents, the four-member Piper plural-

ity went beyond the matter on which certiorari was

granted to discuss the standard of appellate review and

the application of the traditional “private interests” and

“public interest” forum non conveniens. All three dis-

senters doubted the wisdom of that exercise. Two of

the dissenters express doubt as to the correctness of

dismissing suits against U.S. defendants who made the

product in this country.*"

In at least two major respects the Piper opinion

creates serious difficulties for any principled adminis-

tration of forum non conveniens law by the lower fed-

eral courts. First, it gave aid and comfort to the empha-

sis in the courts below on the courts’ own docket-

congestion concerns as a forum non conveniens factor

sometimes sufficient in itself to support dismissal. The

70 454 U.S. 235, 239, 102 S. Ct. at 257.

*' Dissent by Justice Stevens, joined by Justice Brennan, 454

U.S. at 261-262, 102 S. Ct. at 269. See also Friendly; “Indiscretion

About Discretion,” 31 Emory L.J. 747, 751 (1982).

Piper opinion suggested that American courts are

already too attractive to foreign plaintiffs,7* emphasized

that our courts are congested,* and stated that an

“enormous commitment of judicial resources . . . would

inevitably be required if the case were to be tried

here.” ** Seizing upon this approach, the district court

below stated that the present case would be even more

difficult to try than Piper,** stressed the congestion of

its own docket”* and held:

“The Court finds that defendants have satisfied the

[forum non conveniens] standard... by making a

‘clear showing’ that ‘trial in the chosen forum [is]

inappropriate because of considerations affecting

the court’s own administrative and legal problems,’

and thus it is not necessary for defendants to es-

tablish ‘such oppression and vexation * * * as to be

out of proportion to the plaintiff's convenience.’ ”?’

The Court of Appeals explicitly approved the district

court’s holding that the court’s own docket concerns can

tip the balance in favor of dismissal, even when the

balance-of-convenience showing normally required of

defendants seeking forum non conveniens dismissal has

not been made, stating:

“[E]ven when the private convenience of the liti-

2 “The American courts, which are already extremely attrac-

tive to foreign plaintiffs, would become even more attractive. The

flow of litigation into the United States would increase and further

congest already crowded courts.” 454 U.S. 235, 252, 102 S. Ct. at

263-64.

3 Id.

™ 454 U.S. at 261, 102 S. Ct. at 268.

#8 555 F. Supp. at 20.

** Id. at 19.

77555 F. Supp. at 21-22, qouting in part from Paper Oper-

ations Consultants International, Ltd. v. S/S Hong Kong Amber,

513 F.2d 667, 670 (9th Cir. 1975).

gants are nearly in balance, a trial court has discre-

tion to grant forum non conveniens dismissal upon

finding that retention of jurisdiction would be un-

duly burdensome to the community... .’ ”**

As Judge Henry Friendly has written, principled

forum non conveniens law is threatened by this kind of

emphasis on docket-control concerns.

“(T]he explosion of litigation has created a strong

incentive for district courts to shunt burdensome

litigation elsewhere.”

*x* * *

[I]n these days of crowded dockets there is an in-

evitable risk of some degree of subconscious bias

when decision whether to dismiss a case because of

forum non conveniens is made by the judge who

will have to try it if the motion is denied.” *

In the present case, we have an instance of open ac-

knowledgement by the trial judge of the power of this

“strong incentive,” and of open approval by the Court

of Appeals of central reliarce thereon. Certiorari should

be granted to make clear that it is not an approved in-

centive.*

28708 F.2d at 1411, quoting from Pain v. United Technolo-

gies Corp., 637 F.2d 775, 791-92 (D.C. Cir. 1980), cert. den., 454

U.S. 1128, 102 S. Ct. 980 (1981). The Court of Appea’ also stated

that forum non conveniens permits a court to decline jurisdiction

for “prudential reasons.” 708 F.2d at 1409.

* Friendly, “Indiscretion About Discretion,” 31 Emory L.J.

747, 750 n. 10. (1982).

* Id. at 754.

** See also Note, “The Convenient Forum Abroad Revisited:

A Decade of Development of the Doctrine of Forum Non Conve-

niens in International Litigation in the Federal Courts,” 17 Va.

J. Int. L. 755, 791 (1977), stating that we badly need clarification

on “whether a court may grant an FNC motion solely for its own

convenience.”

The second difficulty created by Piper is its state-

ment and application of the “clear abuse of discretion”

standard of appellate review.* In the present case, that

portion of Piper was the Court of Appeals’ central sup-

port.** Review was cursory, as evidenced by the sum-

mary nature of the Court of Appeals opinion, by the

Court’s rather casual reference to declining jurisdiction

“for prudential veasons,”™ and by the Court’s totally ig-

noring petitioners’ argument on behalf of a strong U.S.

interest, appropriate to forum non conveniens determi-

nations, in deterring U.S. manufacturers from the

worldwide distribution of dangerously defective air-

craft.

Judge Friendly has been very critical of the Piper

emphasis on the “clear abuse of discretion” review stan-

dard as applied in that case, stating: “I do not regard

the rule of obeisance in the extreme form laid down by

the Piper majority as a healthy one.”** In Judge

Friendly’s view, there is obvious need for the consis-

tent application of clear principles of decision in forum

non conceniens cases,** and abdication of meaningful

* 454 U.S. at 257, 102 S. Ct. at 266.

* 708 F.2d at 1409.

Oe.

* Friendly, supra note_29, 31 Emory L.J. at 754. Judge

Friendly states that Piper required much more than the “substan-

tial deference” ordinarily associated with forum non conveniens

review. Jd. at 751. Elsewhere in the article, he cites Piper as an

arguable instance of “the danger that an inadequately articulated

opinion may do more to engender than to diminish confusion.” /d.

at 758, n. 35.

* 31 Emory L.J. at 769-71.

appellate review guarantees inconsistency among the

more than 500 federal trial judges now sitting.”

Meaningful appellate review did not occur in the

present case. In the process, much settled forum non

conveniens law was ignored or lost sight of. (See Part

I-B of this Petition, infra.). Certiorari should be

granted to correct the difficulties engendered by the

controversial portions of Piper, and to reaffirm those

settled forum non conveniens principles that do lead to

principled and acceptably consistent determinations by

the lower courts.

B. Gilbert, Koster, Piper and the Present Case

In their use of Piper as support for the docket-

control emphasis, the courts below ignored crucial lan-

guage from the uncontroversial portion of that opinion

and crucial principles of the settled law of forum non

conveniens. Piper reaffirmed the traditional forum non

conveniens balancing process originally articulated in

this Court’s 1947 Gilbert and Koster® decisions.“

Both “private interest” factors and “public interest”

factors must be balanced.*' The trial court is not en-

titled to deference unless all relevant factors have been

considered.**? The traditional presumption favoring

37 Id. at 758.

* Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839

(1947).

%* Koster v. Lumbermen’s Mutual Casualty Co., 330 U.S. 518,

67 S. Ct. 828 (1947).

“© Piper, 454 U.S. at 241, 102 S. Ct. at 258.

Id.

“ 454 U.S. at 257, 102 S. Ct. at 266: [Where the [district]

court has considered all relevant public and private interest fac-

tors, and where its balancing of these factors is reasonable, its de-

cision deserves substantial deference.” (Emphasis added.) See also

454 U.S. at 249-250, 102 S. Ct. at 262 (wrong to emphasize any one

forum non conveniens factor).

plaintiffs’ forum choice is itself a factor entitled to inde-

pendent weight in the balancing process.“ The Piper

opinion explicitly states that forum non conveniens dis-

missal is not appropriate unless “trial in the plaintiff's

chosen forum imposes a heavy burden on the defendant

or the court, and .. . the plaintiff is unable to offer any

specific reasons of convenience supporting his choice.” “

Despite being severely handicapped by the district

court’s refusal to permit any discovery, petitioners

were able to demonstrate a number of “specific reasons

of convenience” supporting U.S. forum jurisdiction and

rejecting the reasonableness of forcing plaintiffs to liti-

gate in Taiwan.** (1) Most of the liability witnesses are

in the United States.“ (2) All of the significant wreck-

age of the jetliner was in the United States for testing

by the National Transportation Safety Board and Boe-

ing, but Boeing removed most of it to Taiwan during

the pendency of this litigation. (3) A U.S. court will cer-

tainly do a better job of applying U.S. law than a Tai-

wanese court.*’ (4) Taiwan’s courts require a plaintiff to

* 454 U.S. at 244, 255-56, 102 S. Ct. at 260, 265-66.

“ 454 U.S. at 249, 102 S. Ct. at 262. Emphasis added.

“* The decision of the courts below conflicts with other post-

Piper decisions of other Courts of Appeals and other panels of the

Ninth Circuit on the importance and proper treatment of many of

these “private interest” points. See notes 47-49, 53-55, infra.

“ Boeing admitted in an affidavit that virtually all of its wit-

nesses are based in the U.S. See Appendix L, p. 155. The U.S.

Government officials who participated in the investigation of the

aircraft explosion are also in the U.S.

*’ Both lower courts assumed that U.S. law would control the

case, even in Taiwan courts. 555 F. Supp. at 16-17; 708 F.2d at

1410-11. (The district court later stated it “is quite possible that

Chinese law would be applied to this action.” 555 F. Supp. at 21.)

Post-Piper decisions of other circuits stress the applicability of

U.S. law as an important factor favoring retention of jurisdiction:

Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339 (8th Cir. 1983);

post a cash deposit of 1% of the amount of the claim as a

prerequisite to filing suit.“ (5) Trial by jury is not avail-

able in Taiwan.** (6) According to the sworn evidence of

two experienced Taiwanese judges, Taiwan’s courts

will simply not accept jurisdiction in these cases.®

(7) By federal law Taiwanese citizens are guaranteed

access to U.S. courts,*’ but there is no evidence of any

corresponding guarantee by Taiwan that U.S. citizens

La Seguridad v. Transytur Line, 707 F.2d 1304, 1310 (11th Cir.

1983); De Oliveira v. Delta Marine Drilling Co., T07 F.2d 848, 845

(5th Cir. 1983); American Rice, Inc. v. Arkansas Rice Growers,

701 F.2d 408, 417 (5th Cir. 1983); Bailey v. Dolphin International,

Inc., 697 F.2d 1268, 1274 (5th Cir. 1983); Vaz Borralho v. Keydril

Co., 696 F.2d 379, 384 (5th Cir. 1983); Gahr Development v. Ned-

lloyd Lijnen, B.V., 542 F. Supp. 1224, 1227 (E.D.La. 1982); Lake

v. Richardson-Merrell, Inc., 588 F. Supp. 262, 273-76 (N.D. Ohio

1982).

“ The courts below found this factor to be insignificant. 555

F. Supp. at 16-17; 708 F.2d at 1410. Other post-Piper decisions are

in conflict: Lehman v. Humphrey Cayman, Ltd., n. 47, supra;

Macedo v. Boeing Company, 693 F.2d 683, 688 (7th Cir. 1982); See

especially the Ninth Circuit’s own decision in Raffaele v. Compa-

gnie Generale Maritime, 707 F.2d 395, 398-99 (9th Cir. 1983).

“ See Appendix M, p. 157. Several post-Piper decisions of

other courts have relied upon this factor as supporting retention of

U.S. jurisdiction. Lehman, supra, n. 47; Macedo, supra, n. 48, 698

F.2d at 687.

* See Appendix K, p. 127. The district court did not believe

the evidence of these two judges, relying instead on the affidavit of

defendant’s Chinese-law expert, a young attorney. 555 F. Supp.

at 15-16. However, the court suggested that dismissal should in-

clude the proviso that plaintiffs can refile their American action if

the foreign court refuses jurisdiction. 555 F. Supp. at 15, n. 8, but

did not include that proviso in its order, 555 F. Supp. at 22, or the

judgment of dismissal, Appendix C at p. 72.

* Article VI, sec. 4 of the 1948 Treaty of Friendship, Com-

merce and Navigation between the U.* and Taiwan (Appendix E,

p. 76). On the abrogation of the treaty, Congress passed the Tai-

wan Relations Act (Appendix E, p. 76), which continued the

Treaty’s guarantee of access by Taiwan nationals to U.S. courts.

See also Chang v. Northwestern Memorial Hospital, 506 F. Supp.

975 (N.D. Ill. 1980).

will enjoy access to Taiwan’s courts.* (8) The record is

thus extremely dubious as to whether any plaintiffs,

and particularly the American, Canadian, Brazilian,

and Japanese plaintiffs, can gain access to Taiwan’s

courts. (9) Defendants made no showing and the record

is silent as to the availability of compulsory process for

the attendance of witnesses and discovery in Taiwan.*

(10) The record is silent as to whether Taiwan’s courts

have ever entertained a products liability action,“ and

as to the availability of wrongful death damages in Tai-

wan. (11) Petitioners also showed that in several re-

lated state-court cases arising out of the explosion of

Boeing Jetliner B-2603, Boeing was defending without

seeking forum non conveniens dismissal. This show-

ing demonstrated that Boeing’s present motion is

purely defensive tactics, not a genuine “inconvenient

forum” motion; awarding success to that strategy is

fundamentally inconsistent with the purposes of forum

non conveniens,* with the obvious U.S. interest in in-

sisting that U.S. manufacturers of products intended

for worldwide dissemination comply with the safety re-

quirements of U.S. law, and with fundamental fairness.

* The Court of Appeals refused to consider this argument,

stating that plaintiffs did not raise it in the district court. 708 F.2d

at 1411.

* The importance of these factors was stressed in Lehman,

supra, n. 47, and Macedo, supr, n. 48, 693 F.2d at 687-88.

“ Compare Macedo, supra, n. 48, 698 F.2d at 688.

“ The importance of defendants’ conduct of related litigation

as bearing on the genuineness of the forum non conveniens mution

is stressed in the Seventh Circuit’s Macedo decision, supra, n. 48,

693 F.2d at 689-90. In refusing to consider it, the courts below

ee SP Sa SH CEE SD Sip Tae SRS ae

* See Note, “Forum Non Conveniens and Foreign Plaintiffs in

the Federal Courts,” 69 Geo. L.J. 1257, 1258-59 (1981).

Judge Henry Friendly states that in Koster v.

Lumbermen’s Mutual Casualty Co.,*’ this Court estab-

lished a rule of law that should be at the core of forum

non conveniens determinations:® plaintiff’s forum

choice should not be disturbed unless he makes so poor

a “convenience” showing “as to support the inference

that the forum he chose would not ordinarily be thought

a suitable one to decide the controversy.” Piper’s in-

dication that plaintiffs’ choice should not be disturbed

unless he “is unable to offer any specific reasons of con-

venience supporting his choice”® seems to state the

same rule. Plainly that rule supports petitioners’ choice

of a United States forum in the present case. The

Northern District of California is not a forum that

“would not ordinarily be thought a suitable one” for

these actions, and plaintiffs made the “specific showing

of convenience” called for by Piper. Certiorari should

be granted to establish that plaintiffs should not be

relegated to a distant and foreign forum in the face of

such a showing.

C. Conflict Among the Circuits

The courts of other circuits disagree with the deci-

sion below as to the impact of Piper.*’ A number of deci-

sions from other circuits, decided since the Piper opin-

ion was handed down, have painstakingly analyzed the

“private interest” factors in an effort to arrive at a con-

clusion whether defendants’ “convenience” showing

*” 330 U.S. 518, 67 S. Ct. 828 (1947).

“ Friendly, supra, n. 21, 31 Emory L.J. at 751.

™ 330 U.S. at 581-32, 67S. (+. at 835.

454 U.S. at 249, 102 S. Ct. at 262.

* See cases cited in notes 47-49, 53-55, supra.

should offset plaintiffs’ forum choice.** Further, the

Fifth Circuit Court of Appeals has recently stressed

that careful appellate review is required in forum non

conveniens cases** and emphasized that even when

plaintiff can present

“... no identifiable Gilbert factors supporting the

retention of jurisdiction, plaintiffs nevertheless re-

tain the heavy presumption in favor of their choice

of forum. [Plaintiffs were all foreigners, unlike the

present case.] A plaintiff’s interest in this choice is

itself sufficient to tip the scale in his favor. The

burden is always on defendant to present a collec-

tion of convenience factors which... strongly

favor trial in a specific alternative forum.”™

The decisions below are in conflict with the Fifth Cir-

cuit decision on scope of review and on the appropri-

ate weight to the plaintiffs’ choice factor, and both

courts below held, contrary to the Fifth Circuit, that

defendant need not make the indicated “strong” show-

ing when the court is concerned about its own crowded

docket.**

On the inter-circuit conflict as to Piper's effect on

the legitimacy of docket-protection as a controlling

forum non conveniens factor, see especially Lake v.

Richardson-Merrel:, Inc., 538 F. Supp. 262 (N.D. Ohio

1982), an action by Canadian plaintiffs against U.S.

manufacturers of thalidomide and bendectin for injuries

* /d.

* Perusahaan Umom Listrik Negara Pusat v. M/V Tel Aviv,

711 F.2d 1231, 1282, 1239, 1241 n. 29, 1242 (5th Cir. 1983). Empha-

sis added.

“ Id. at 124° Emphasis added.

* 555 F. Supp. at 19-22; 708 F.2d at 1411.

caused by those products in Canada. Rejecting defen-

dants’ forum non conveniens motion, the court care-

fully analyzed the Piper decision—pointing out several

areas of uncertainty it felt Piper created—and con-

cluded after closely examining the full gamut of “pri-

vate” and “public” factors that plaintiffs’ forum choice

should not be disturbed. The Lake court concluded:

“The docket of this Court will never be so over-

loaded as to require the dismissal of cases legiti-

mately and correctly brought before it. *** The

factor of court administration holds little weight in

determining whether to dismiss these cases for

forum non conveniens.”*

The Lake court’s approach is corr ct forum non

conveniens law, and stands in sharp contrast to the de-

cisions below. In Gilbert, this Court stated that the

flexibility and discretionary nature of forwm non conve-

niens is acceptable because “experience has not shown

a judicial tendency to renounce one’s own jurisdiction so

strong as to result in many abuses.”*’ That comforting

observation is belied by the present case.® If the deci-

sion below is allowed to stand, forum non conveniens

has been transmogrified from a litigant-convenience

doctrine into the preeminent defense strategy in all

complex transnational litigation. As one perceptive

commentator has noted:

“American defendants have turned with increasing

frequency to the forum non conveniens doctrine

because it has proven to be an effective means to

538 F. Supp. at 275.

* Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67S. Ct.

839, 843 (1947).

* See also Judge Friendly, supra, n. 21, 31 Emory L.J. at

THO, n. 10.

avoid litigating an international dispute in federal

court. Although it is common practice, a purely de-

fensive use of forum non conveniens as a litigation

strategy conflicts with the doctrine’s underlying

purpose: ensuring that the defendants are pro-

tected from unnecessary inconvenience. In terms

of convenience, it is not readily apparent why an

American defendant would seek the dismissal of a

suit brought on his own ‘home turf.’ ”®

II. Certiorari Should be Granted to Establish That

There is a United States Interest, Entitled to Weight

in Forum Non Conveniens Determinations, in Deter-

ring U.S. Manufacturers and Sellers From the

Worldwide Dissemination of Dangerously Defective

Products.

Petitioners urged the courts below to retain juris-

diction to further the obvious U.S. interest in deterring

American manufacturers and sellers from distributing

dangerously defective aircraft in a worldwide market.

The district court read Piper to make that argument

entirely irrelevant.”° (The Court of Appeals did not ad-

dress this point at all.)

The Piper plurality opinion stated:

“(T]he incremental deterrence that would be

gained if this trial were held in an American court

is likely to be insignificant. The American interest

in this accident is simply not sufficient to justify

the enormous commitment of judicial time and re-

sources that would inevitably be required if the

case were to be tried here.””’

* Note, supra, note 56, 69 Geo. L.J. at 1258-59.

” 555 F. Supp. at 12 n. 4, and at 20.

” 454 U.S. at 260-261, 102 S. Ct. at 268.

The facts that made the that statement plausible were:

(1) the case involved the crash of a small charter air-

craft; (2) the official investigation of the crash found no

product defects, but pointed to pilot error;”* (3) related

litigation was already under way in Britain; (4) British

courts were familiar with wrongful death litigation

based on defective products and would apply Scottish

negligence law to the American defendants.” It was on

those facts, and those facts only, that the Piper “incre-

mental deterrence” statement made sense.

The case is completely different. It involves terri-

fying defects in hundreds of Boeing’s jetliners.”% No

pilot or maintenance error is suggested,”* and there is

and has been no related litigation pending in Taiwan.

The present record does not show the availability of any

wrongful death damages in Taiwan, or whether Tai-

wan’s courts have ever entertained a death or personal

injury action based on injury by a defective product.

The district court in the present case took Piper's

“incremental deterrence” statement out of context;

Piper is not legitimate support for rejecting the U.S.

deterrence interest in the present facts. Nevertheless,

the Court of Appeals below did not find the point im-

portant enough to comment on, beyond the general

statement that “the facts in Reyno are sufficiently simi-

lar to the facts in the present case to support dis-

7 454 U.S. at 238-239, 102 S. Ct. at 257.

™ 454 U.S. at 239-240, 102 S. Ct. at 257-258, text and n. 3.

™ See the Boeing product advisory, Appendix K, p. 127, for

identification of the U.S. and other air carriers affected by this

product defect.

™ 708 F.2d at 1408.

missal.””* Certiorari should be granted to correct the

misunderstanding of Piper and to make clear that the

U.S. retains its interest in preventing the manufacture

and dissemination of devastatingly dangerous products

in a worldwide market. In addition, certiorari on this

point is necessary to resolve conflicts between the deci-

sion below and post-Piper decisions of the courts of

other circuits.” Further litigation in the lower courts is

not especially likely to eliminate the problem, which

stems from the Piper “incremental deterrence”

statement.

III. Certiorari Should be Granted to Clarify the Ef-

fect of the Piper Decision on the Presumption Tradi-

tionally Accorded U.S. Plaintiffs’ Choice of a U.S.

Forum, and to Resolve Conflicts Among the Circuits

on That Issue.

Before Piper, most federal courts and most com-

mentators treateu the presumption favoring retention

of jurisdiction in actions brought by U.S. plaintiffs as

7° 708 F.2d at 1410.

7 American Rice, Inc. v. Arkansas Rice Growers, 701 F.2d

408, 417 (5th Cir. 1983) (affirming denial of forum non conveniens

dismissal, emphasizing importance of applying U.S. trademark and

unfair competition laws to conduct of U.S. defendant); Lehman v.

Humphrey Cayman, Ltd., 713 F.2d 339 (8th Cir. 1983) text and

n. 6 (reversing forum non conveniens dismissal, relying in part on

desirability of applying U.S. law to conduct that had a nexus here

and caused harm here); Lake v. Richardson-Merrell, Inc., 538

F. Supp. 262, 274-75 (N.D. Ohio 1982) (denying forum non conve-

niens dismissal motion of American products manufacturers sued

by Canadian plaintiffs for Canadian injuries, relying centrally on

the need to deter U.S. manufacturers, and distinguishing Piper on

the basis that much less wrongful activity occurred in the U.S. in

Piper than in the case before the court).

near-conclusive.”* Piper involved only alien plaintiffs,

but the opinion reaffirms the existence of some pre-

sumption for U.S. plaintiffs.”

In the present case the courts below paid lip ser-

vice to the deference due U.S. plaintiffs’ choice of a

U.S. forum, but in fact treated that factor as insignifi-

cant, once again relying squarely on Piper.® This treat-

ment of U.S. plaintiffs puts the present Ninth Circuit

decision at odds with Piper and with this Court’s earlier

decisions in Koster*' and Swift & Company Packers.®

It also puts the present Ninth Circuit decision in

conflict with a number of post-Piper decisions of other

Circuit Courts of Appeals,** and with two post-Piper

7 See, e.g., Founding Church of Scientology v. Verlag, 536

F.2d 429, 435 (D.C. Cir. 1976); Note, “Forum Non Conveniens and

American Plaintiffs in the Federal Courts,” 47 U.Chi. L. Rev. 373

(1980) (arguing against treating U.S. plaintiffs differently from for-

eign plaintiffs but acknowledging the general view to the con-

trary).

7” 454 U.S. at 255-56, 102 S. Ct. at 265-66, text and n. 23.

Company, Inc. v. MV Nordic Regent, 654 F.2d 147, 154-58 (2nd

Cir.) (en banc), cert. denied, 449 U.S. 890, 101 S. Ct. 248, (1980)

and Pain v. United Technologies Corp., 736 F.2d 775, 795-99 (D.C.

Cir. 1980), cert. denied, 454 U.S. 1128, 102 S. Ct. 980 (1981), are

significantly distinguishable. Alcoa involved suit against foreign

defendants on a foreign cause of action. In Pain the U.S. product

liability defendant had to admit liability “as the price for permit-

ting it to shift the case from plaintiffs’ chosen forum.” (736 F.2d at

785. )

* Koster v. Lumbermen’s Mutual Casualty Co., 330 U.S. 518,

524, 67 S. Ct. 828, 831-32 (1947).

* Swift & Company Packers v. Compania Colombiana del

Caribe, 339 U.S. 684, 697, 70 S. Ct. 861, 869 (1950).

* Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339 (8th

Cir. 1983) (Iowa citizen’s suit against Cayman Islands corporation

decisions of other panels of the Ninth Circuit itself.”

Certiorari should be granted to clear up these conflicts

and to establish that United States citizens and resi-

dents are entitled to a strong presumption in favor of

retaining United States jurisdiction. Such a presump-

tion should be especially weighty when defendants are

United States corporations, defendants’ culpable con-

duct occurred in the United States, and Uniied States

for wrongful death occurring in Cayman Islands; trial court

granted forum non conveniens dismissal, but Court of Appeals re-

versed); Macedo v. Boeing Company, 639 F.2d 683, 688 (7th Cir.

1982) (57 plaintiffs, six of whom were Americans, against U.S. and

foreign corporations for deaths occurring in Portuguese airliner

crash in Portugal; trial court granted forum non conveniens dis-

missal, Court of Appeals reversed and rernanded for further con-

sideration); American Rice, Inc. v. Arkansas Rice Growers, 701

F.2d 408, 417 (5th Cir. 1983) (suit between U.S. corporations

based on alleged violations, occurring in Saudi Arabia, of U.S.

trademark and unfair competition laws; Court of Appeals affirmed

trial court refusal to dismiss for forum non conveniens); Nalls v.

Rolls-Royce, Ltd., 702 F.2d 255 (D.C. Cir. 1983) (U.S. residents’

suit against alien corporations for deaths in India airliner crash.

Although there were no U.S. defendants and U.S. law was plainly

not applicable, the trial court refused forum non conveniens dis-

missal and the Court of Appeals refused to review. The only writ-

ten opinion in Nalls is the dissent in the Court of Appeals, which

states that plaintiffs’ American residence was the significant factor

favoring retention of U.S. ju ‘ diction. 702 F.2d at 257).

™ Nebenzahi v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir

1983), (reversing forum non conveniens dismissal of U.S. citizens’

this country”); Raffaele v. Compagnie Generale Maritime, S.A.,

707 F.2d 395, 398-99 (9th Cir. 1983) (reversing dismissal for want

corporation

imposed by traditional justice and fairness, plaintiff “has a right to

enforce obligations imposed by law,” and that this right would not

be meaningful if plaintiff had to go to Germany to assert it).

law will be the governing law whenever the case is

tried.

IV. Conclusion

The decision below is a serious injustice to the

present petitioners, signals confusion and conflict

among the lower courts as to the meaning of this

Court’s Piper decision, and reveals that Piper demands

early clarification by this Court. The difficulties de-

tailed in this Petition are not likely to be cured by fur-

ther litigation in the lower courts, because the Piper

opinion is a prime source of the trouble.

The courts below found support in Piper for central

emphasis on the Courts’ increasing concerns about

docket congestion, affording only very limited appellate

review of forum non conveniens dismissals, disregard-

ing as entirely irrelevant the U.S. interest in subjecting

U.S. manufacturers of products intended for worldwide

distribution to U.S. law, denigrating the traditional

presumption afforded plaintiff’s forum choice, and

greatly diminishing the traditional regard for the

American plaintiff’s choice of an American forum. This

Court should grant certiorari to address those

applications of Piper, and to eliminate the ones that

constitute misunderstandings of fundamental forum

non conveniens law. Failure to do so will mean that

forum non conveniens is no longer a “conveniens” doc-

trine at ail; it will have become the preeminent defen-

sive strategy in all complex transnational litigation in

the federal courts.

Petitioners urge the Court to grant certiorari, to

review this matter fully, and to establish and clarify

forum non conveniens law in these particulars:

(1) Docket congestion is not in and of itself a legitimate

forum non conveniens factor.

(2) Appellate courts must fully review forum non con-

veniens determinations for clear error of law, such as

failing to take relevant factors into account or failing to

give appropriate weight to important factors.

(3) One important “public interest” factor meriting

careful consideration in any tort action against an

American defendant is the U.S. interest in deterring

harmful conduct by U.S. citizens and enterprises.

(4) Plaintiff's forum choice, absent clear indication that

the chosen forum is one that would ordinarily be re-

garded as completely inappropriate for the trial of the

action, is entitled to such presumptive weight that de-

fendant cannot secure forwm non conveniens dismissal

except by making a fully convincing showing that trial

in a foreign forum would be overwhelmingly more con-

venient.

(5) When plaintiff is an American citizen or resident

alien, either alone or necessarily joined in an action

with alien plaintiffs, and defendant is also an American

citizen, resident alien, or enterprise, only the most un-

usual circumstances (e.g., all of the harmful conduct

and all of the damage occurred abroad) can support

forum non conveniens dismissal.

Establishment or reaffirmance of any of the fore-

going propositions would necessitate reversal in the

present case, and petitioners respectfully submit they

are all sound propositions deserving of adoption or

reaffirmance and reemphasis.

Respectfully submitted,

Paul H. Due

Attorney of Record

Dué, Dodson, deGravelles,

Robinson & Caskey

One Maritime Plaza

(Post Office Box 3158)

Baton Rouge, LA 70802 (70821)

(Area 504) 383-8851

David W. Robertson

Of Counsel

727 East 26th Street

Austin, TX 78706

(Area 512) 471-5151

CERTIFICATE

I hereby certify, pursuant to United States Su-

preme Court Rule 28.3, that all counsel of record herein

have been served with three copies each of this Petition

by depositing same in the United States Mail, first class

postage prepaid, properly addressed to counsel at his

post office address.

APPENDIX A

NINA CHENG, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF THOMAS T.O.

CHENG, DECEASED, ET AL..,

Plaintiffs-Appellants,

VERSUS

THE BOEING CoMPANY, ET AL.,

Defendants-Appellees.

SHUNSAKU HARADA AND MASA HARADA, IN THEIR

INDIVIDUAL CAPACITIES AND AS HEIRS AT LAW AND

LEGAL SUCCESSORS OF AKIKO HARADA,

DECEASED, ET AL.,

iinet Plaintiffs-Appellants,

THE BOEING CoMPANY, ET AL.,

Defendant-Appellees.

Lui Su Nal-CHA, ET AL.,

Plaintiffs-Appellants,

VERSUS

THE BOEING CoMPANY, ET AL.,

Defendants-Appellees.

Nos. 82-4267, 82-4283, 82-4284 and 82-4288 to 82-4302.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 12, 1983.

Decided June 20, 1983.

Appeal from the United States District Court for

the Northern District of California.

Before MERRILL, SNEED, and FARRIS, Circuit

Judges.

FARRIS, Circuit Judge:

The Cheng and Harada plaintiffs brought actions

against Boeing, United Airlines, and Far Eastern Air

Transport in the U.S. District Court for the Northern

District of California on claims arising out of the crash

of a commercia! airliner in Taiwan in 1981. Defendants

asserted that Taiwan was a more convenient forum and

moved that plaintiffs’ cause be dismissed on the ground

of forum non conveniens. The district court granted de-

fendants’ motion. Plaintiffs appeal. -

The crash involved a Boeing 737-200 operated by

Far Eastern Air Transport. Boeing manufactured the

plane in 1968 and United Airlines operated it within the

United States until 1976, when it sold it to Far Eastern.

From 1976 until the day of the crash, Far Eastern oper-

ated and serviced the aircraft. Far Eastern performed

all maintenance in accordance with a program autho-

rized by Boeing. At the time of the accident Boeing had

trained 54 members of Far Eastern’s maintenance staff.

The crash occurred on August 22, 1981, during an

intra-Taiwan flight and killed all aboard. The airplane

exploded shortly after take-off at 20,000 feet, scatter-

ing debris over a wide area of rugged terrain south of

Taipei. The China Civil Aeronautics Authority, with the

assistance of the U.S. National Transportation Safety

Board, Boeing, and United, conducted a full-scale in-

vestigation of the accident. Much of the wreckage was

taken to the United States for examination and testing

but was later returned to Taiwan. It remains there, al-

though Boeing retains some fragments.

Four days after the district court granted Boeing’s

motion to dismiss on grounds of forum non conveniens,

the Taiwan Ministry of Communications announced the

results of the investigation. The Authority found, inter

alia, that there were no eyewitnesses to the accident,

that there was no pilot or crew error, that there were

no maintenance defects, that there were no adverse

weather conditions at the time of the crash, and that

the cause of the accident was the rupture under pres-

sure of the body of the aircraft due to cracks in its struc-

ture caused by rust and corrosion. The Authority noted

that the U.S. Federal Aviation Agency had documented

237 instances of similar cracks in 154 Boeing planes of

the same type.

This appeal consolidates nineteen separate wrong-

ful death actions filed by representatives of passenyers

killed in the accident. The passengers included citizens

of Taiwan, Japan, Canada, and the United States. At

the time Boeing’s motion to dismiss was argued before

the district court, most of the Cheng plaintiffs were

Taiwanese. Among the plaintiffs, however, were seven

Americans and four Taiwanese residents of the United

States. Boeing and United have since settled with most

of these eleven plaintiffs and, at this time, only a small

number of plaintiffs who are either citizens or residents

of the United States remain active in this litigation. The

Harada plaintiffs are forty-six Japanese citizens, suing

in behalf of eighteen Japanese decedents.

This litigation began when the Cheng plaintiffs filed

three complaints in the Northern District of California

naming Boeing and other American corporations as de-

fendants. At the same time they sought to depose two

Boeing employees. Boeing successfully moved to quash

the notices of deposition and to stay discovery pending

its filing of a motion to dismiss on the ground of forum

non conveniens.

Boeing filed a motion to dismiss or, in the alterna-

tive, to transfer the case to the Western District of

Washington. Ten days later the Harada plaintiffs filed

fifteen actions, naming Boeing, United Airlines, and

Far Eastern Air Transport as defendants. On that day

the district court granted Boeing’s motion to quash the

notices of deposition and stayed all discovery.

On January 11, 1982, the Cheng plaintiffs amended

their complaint, adding more plaintiffs, dropping all the

original defendants but Boeing, and adding United as a

defendant. On January 22 Boeing and United argued

the motion to dismiss on the ground of forum non con-

veniens. On March 1 Far Eastern answered the Harada

complaint, raising forum con conveniens as an affirma-

tive defense. With Boeing’s and United’s motion under

submission, the court ordered a stay on all matters

pending decision on the motion. On March 8 and 12

plaintiffs moved for leave to file additional documents

or, in the alternative, for an evidentiary hearing on the

pending motion. After reviewing plaintiffs’ documents,

the court denied the motion.

On April 13, 1982, the court granted defendants’

motion to dismiss on the ground of forum non conve-

niens but conditioned the dismissal on Boeing’s and

United’s agreement to the following four-part under-

taking:

1. The courts of Taiwan have, and will assert,

jurisdiction over these actions.

2. Defendants will submit themselves to the juris-

diction of the Taiwanese court, and will make their

employees available to testify in Taiwan.

3. Defendants agree to waive any statute of limita-

tions claims arising from the date that these actions

were filed to the date this Order cismissing the

complaints becomes effective.

4. Defendants consent to satisfy any judgment that

may be rendered against them in Taiwan.

The dismissal as to Far Eastern was unconditional.

STANDARD OF REVIEW

[1] Our standard of review is narrow: The forum

non conveniens determination is committed to the

sound discretion of the trial court. It may be re-

versed only when there has been a clear abuse of

discretion; where the court has considered all rele-

vant public and private interest factors, and where

its balancing of these factors is reasonable, its deci-

sion deserves substantial deference.

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102

S. Ct. 252, 266, 70 L.Ed.2d 419 (1981).

ISSUE

The only issue is whether the district court abused

its discretion in dismissing these cases on the ground of

forum non conveniens. We affirm.

ANALYSIS

Whether the district court abused its discretion by

granting defendants’ motion to dismiss on the ground of

forum non conveniens depends on the application to the

facts of this case of the doctrine which the Supreme

Court enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Piper Air-

craft C. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70

L.Ed.2d 419 (1981). The district court found that the

facts in Reyno were sufficiently analogous to the facts

in this case to justify dismissal on grounds of forum non

conveniens. Plaintiffs argued on appeal that there are

sufficient differences between the two cases to justify a

contrary result in the case now before us and that the

district court’s failure to recognize the consequences of

these differences was an abuse of discretion.

[2, 3] The doctrine of forum non conveniens per-

mits a court to decline to exercise its jurisdiction for

prudential reasons. Although 28 U.S.C. § 1404(a)

codifies the rule of forum non conveniens when the

choice is between alternative forums within the United

States, the common law governs when it is a choice be-

tween a United States and a foreign forum. Paper Oper-

ations Consultants International, Ltd. v. SS Hong

Kong Amber, 513 F.2d 667, 670 (9th Cir.1975). When a

court decides in its discretion that a case before it

should more appropriately be tried in a foreign forum,

it may dismiss the case. Miskow v. Boeing Co., 664 F.2d

205, 208 (9th Cir. 1981), cert. denied, 455 U.S. 1020,

102 S.Ct. 1717, 72 L.Ed.2d 138 (1982).

In Gulf Oil v. Gilbert the Supreme Court set forth

the factors which a trial court must consider in ruling

on a motion to dismiss on the ground of forum non con-

veniens. The Court enumerated both the “private in-

terest factors” affecting the convenience of the litigants

and the “public interest factors” affecting the conveni-

ence of the forum. The private interest factors include

“the relative ease of access to sources of proof; availabil-

ity of compulsory process for attendance of unwilling,

and the cost of obtaining attendance of willing, witnes-

ses; possibility of view of premises, if view would be

appropriate to the action; and all other practical prob-

lems that make trial of a case easy, expeditious and

inexpensive.” 330 U.S. at 508, 67 S.Ct. at 843. The

public interest factors include the administrative dif-

ficulties flowing trom court congestion; the local interest

in having localized controversies resolved at home; the

interest in having the trial of a diversity case in a forum

that is familiar with the law that must govern the ac-

tion; the avoidance of unnecessary problems in conflicts

of law, or in application of foreign law; and the unfair-

ness of burdening citizens in an unrelated forum with

jury duty. Jd. at 508-09, 67 S.Ct. at 843.

The Court in Gilbert noted that the plaintiffs

choice of forum should not be disturbed “unless the ba-

lance is strongly in favor of the defendant.” Jd. at 508,

67 S.Ct. at 843. We have recently indicated that the

standard to be applied is whether, in light of these fac-

tors, defendants have made a “clear showing of facts

which either (1) establish such oppression and vexation

of a defendant as to be out of proportion to the plain-

tiffs convenience, which may be shown to be slight or

nonexistent, or (2) make trial in the chosen forum inap-

propriate because of considerations affecting the court’s

own administrative and legal problems.” Miskow v.

Boeing Co., 664 F.2d at 208, quoting Hoffman v.

Goeberman, 420 F.2d 423, 426-27 (3d Cir. 1970).

In Reyno the representative of the estates of sev-

eral Scottish citizens killed in an airplane accident in

Scotland brought wrongful death actions in a California

state court against two American manufacturers. The

defendants then removed to federal court and the action

was transferred to the Middle District of Pennsylvania.

At the time of the crash the plane was registered in

Great Britain and owned and operated by companies

organized in the United Kingdom. The pilot and all the

decedents’ heirs and next of kin were Scottish citizens.

British authorities conducted the investigation of the

accident. Decedents’ representatives sought to recover

on the basis of negligence or strict liability, the latter

not recognized by Scottish law.

We agree that the facts in Reyno are sufficiently

similar to the facts in the present case to support the

district court’s conclusion that Taiwan was the more ap-

propriate forum. We find no abuse of discretion.

Existence of an adequate alternative forum

The district court began its analysis with a determi-

nation that Taiwan was an adequate alternative forum,

as required by Reyno. 454 U.S. at 254, n. 22, 102 S.Ct.

at 265 n. 22. The Cheng appellants challenged the basis

of that determination, arguing that Taiwan was not an

adequate forum because (1) a Taiwan court would not

have jurisdiction, (2) the filing fee requirements of a

Taiwanese court would be burdensome, and (3) the

American law which would govern these actions would

pose difficulties for a Taiwanese court. The Cheng ap-

pellants offered affidavits of two Chinese legal au-

thorities in support of these arguments, while Boeing

offered the opinion of one expert rejecting these argu-

ments. The trial court considered the affidavits and de-

cided that the view of Boeing’s expert were more per-

suasive.

The court rejected all of plaintiffs’ arguments, find-

ing that a Taiwan court would have jurisdiction over

these cases, that the requirement of a filing fee, al-

though a burden, was not sufficient to deny plaintiffs

access to a Taiwanese court, particularly since they did-

not show that the burden was oppressive; and that

Taiwan courts were fully competent to decide questions

of American law, assuming American law to apply.

Plaintiffs complain that the district court’s finding

that Taiwan was an adequate alternative forum was un-

supported by the evidence and that the court impro-

perly transformed the affirmative burden on Boeing of

showing that an alternative forum existed into a nega-

tive burden on them to demonstrate that the forum

proposed by Boeing was not adequate. Plaintiffs cite

post-Reyno cases for the propositions that the burden

of proving an alternative forum is the defendant’s and

that the remedy must be clear before the case will be

dismissed. See, e.g., Canadian Overseas Ores, Ltd.

v. Compania de Acero del Pacifico, 528 F.Supp. 1337

(S.D.N. Y.1982).

[4] The defendant bears the burden of proving the

existence of an adequate alternative forum. See Scher-

tenleib v. Traum, 589 F.2d 1156, 1160 (2d Cir.1978).

Boeing has provided sufficient proof. The district court

did not abuse its discretion in finding that Boeing’s as-

sertion that Taiwan was an adequate forum was sup-

ported by sufficient evidence.

(5, 6) Plaintiffs argue that the district court failed

to give proper consideration and weight to the fact that

the actions involved several American plaintiffs. The

presence of American plaintiffs, however, is not in and

of itself sufficient to bar a district court from dismissing

a case on the ground of forum non conveniens. Alcoa

Steamship Company, Inc. v. M/V Nordic Regent, 654

F.2d 147, 154-58 (2d Cir.) (en banc), cert. denied, 449

U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980); Pain v.

United Technologies Corp., 637 F.2d 775, 795-99

(D.C.Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct.

980, 71 L.Ed.2d 116 (1981). The record reflects that the

district court gave proper consideration to this factor in

reaching its decision. Plaintiffs also argue that the ab-

rogation by the United States of the 1948 Treaty of

Friendship, Commerce and Navigation between the

United States and Taiwan has eliminated the right of a

United States citizen to sue in a Taiwan court. Because

plaintiffs did not raise this issue in the district court,

we do not consider it on appeal. Finally, plaintiffs argue

that a Taiwan court would have difficulty in applying

American law. We find no error in the district court’s

conclusion that a Taiwan tribunal is competent to decide

questions of American law, if American law should

apply to the issues in this litigation. We recognize that

the necessity of applying American law may add weight

to the factors favoring retention of jurisdiction, Fisher

v. The Agios Nicolags V, 628 F.2d 308, 314-15 (5th Cir.

1980), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70

L.Ed.2d 84 (1981), but we do not find sufficient weight

here to support a rejection of the district court’s conclu-

sion that Taiwan is the more appropriate forum.

The Harada brief makes additional arguments as

to the Japanese plaintiffs based on the 1948 Multilateral

Treaty of Peace with Japan, the 1952 Republic of China-

Japan Treaty of Peace, and Japan’s 1972 unilateral abro-

gation of the 1952 Treaty. These arguments, as well as

the arguments based on Federal Aviation Authority

regulations; the fifth amendment to the U.S. Constitu-

tion, 42 U.S.C. § 1981; the Federal Aviation Act, 49

U.S.C. §§ 1301-1542; the Trading with the Enemy Act,

50 U.S.C.App. §§ 1-44; and 28 U.S.C. §§ 1337 and 1350,

were not raised in the district court.

The district court analyzed the private interest fac-

tors which demonstrate that Taiwan is an adequate al-

ternative forum. See Reyno, 454 U.S. at 241 n. 6, 102

S.Ct. at 258 n. 6. The district court also considered the

public interest factors in its application of the test enun-

ciated in Pain v. United Technologies:

[F]irst, that courts may validly protect their dock-

ets from cases which arise within their jurisdiction,

but which lack significant connection to it; second,

that courts may legitimately encourage trial of con-

troversies in the localities in which they arise; and

third, that a court may validly consider its familiar-

ity with governing law when deciding whether or

not to retain jurisdiction over a case. Thus, even

when the private conveniences of the litigants are

nearly in balance, a trial court has discretion to

grant forum non conveniens dismissal upon finding

that retention of jurisdiction would be unduly bur-

densome to the community, that there is little or

no public interest in the dispute, or that foreign

law will predominate if jurisdiction is retained. ...

637 F.2d at 791-92 (derived from Gulf Oil v. Gilbert,

330 U.S. at 508-09, 67 S.Ct. at 843) (footnotes omitted).

Refusal to permit discovery

[7] Upon filing their complaint, plaintiffs also

sought to depose two Boeing employees. The court

quashed the notices of deposition and barred all further

discovery. However, the court accepted the affidavit of

one of the employees plaintiffs sought to depose. Plain-

tiffs argue that the district court abused its discretion

by denying discovery limited to the forum non conve-

niens issue and then accepting the affidavit of one of

the witnesses that they had sought to depose. The de-

nial of discovery was not an abuse of discretion:

An appellate court will not interfere with the trial

court’s refusal to grant discovery except on the

clearest showing... [of] actual and substantial

prejudice to the litigant... . Discovery, however,

“should be granted where pertinent facts bearing

on the question of jurisdiction are con-

troverted ... or where a more satisfactory show-

ing of the facts is necessary.” Kilpatrick v. Texas

and P. Ry., 72 F. Supp. 635, 638 (S.D.N. Y.1947).

Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d

406, 431 n. 24 (9th Cir.1977). Although it is possible that

discovery might have provided more detail, we find that

Boeing and United provided “enough information to en-

able the District Court to balance the parties’ in-

terests.” Reyno, 454 U.S. at 258, 102 S.Ct. at 267.

Plaintiffs argue that discovery would have shown

that there were other lawsuits arising out of this air-

crash pending in California courts and that Boeing had

not raised forum non conveniens there as a defense.

They also argue that discovery would have demon-

strated that they could obtain jurisdiction over Far

Eastern Air Transport because i a lawsuit in

California in 1975, averring in its Complaint that it was

authorized to do business in California. At oral argu-

ment, however, defendants demonstrated that all

California state litigation arising out of this aircrash has

been settled or dismissed and that the 1975 lawsuit was

brought without Far Eastern’s authorization or its

knowledge.

While plaintiffs correctly assert that forum non

conveniens questions are often an appropriate subject

for directed discovery, Lekkas v. Liberian M/V

Caledonia, 443 F.2d 10 (4th Cir.1971), that a plaintiff

ordinarily should not be required to rely on a movant’s

affidavits on a motion to dismiss, that a plaintiff should

be able to conduct directed discovery on the issues

raised by the motion, Blanco v. Carigulf Lines, 632

F.2d 656, 658 (5th Cir. 1980), we find no abuse of discre-

tion.

Far Eastern Air Transport as a defendant

[8-10] Far Eastern is a Taiwan corporation which

does no business in California. Diversity jurisdiction

does not encompass foreign plaintiffs suing foreing de-

fendants. 28 U.S.C. § 1332. Further, the Federal Avia-

tion Act, 49 U.S.C. §§ 1301-1542, does not apply to the

activities of a foreign carrier operating between two

foreign points without contact in the United States.

49 U.S.C. §§ 1301(23)(c), (24)(c). There is therefore no

federal question jurisdiction over Far Eastern. See 28

U.S.C. § 1331.

Affirmed.

APPENDIX B

Lul Su NAI-CHAO, ET AL.,

Plaintiffs,

VERSUS

THE BOEING COMPANY, ET AL.,

Defendants.

No. C-81-4235 WHO.*

United States District Court,

N.D. California.

April 12, 1982.

OPINION AND ORDER

ORRICK, District Judge.

The complaints that comprise these consolidated or

related actions arise from the crash of a Far Eastern

Air Transport (“FEAT”) Boeing 737 aircraft in Taiwan,

Republic of China, on August 22, 1981. Of the one hun-

dred ten passengers and crew killed in the crash,

eighty-severh were citizens and residents of Taiwan,

eighteen werk citizens of Japan, four were citizens of

Canada, and dne was a citizen of the United States. To

date, five hundred sixty-four plaintiffs, seven of whom

are United States citizens and four of whom are Tai-

wanese citizens presently residing in the United States,

* And Consolidated or Related Case Nos. C-81-3702 WHO,

C-81-3703 WHO, C-81-4710 WHO, C-81-4711 WHO, C-81-4712

WHO, C-81-4713 WHO, C-81-4714 WHO, C-81-4715 WHO, C-81-

4716 WHO, C-81-4717 WHO, C-81-4718 WHO, C-81-4719 WHO,

C-81-4720 WHO, C-81-4721 WHO, C-81-4722 WHO, C-81-4723

WHO, C-81-4724 WHO, C-82-0401 WHO.

have filed suit in this Court’ asserting wrongful death

claims based on theories of strict liability and negli-

gence against The Boeing Company (“Boeing”), the

manufacturer of the aircraft, and United Airlines, Inc.

(“United”), which sold the aircraft to FEAT in 1976.

Defendant Boeing, acting also for defendant

United,? has moved to dismiss these actions on the

‘To date, nineteen separate actions arising from the

accident have been filed in this Court: Chiuen v. Boeing Co., No.

C-81-3702 WHO (Sept. 18, 1981); Chang v. Boeing Co., No. C-81-

3703 WHO (Sept. 18, 1981); Nai-Chao v. Boeing Co., No. C-81-

4235 WHO (Oct. 29, 1981); Harada v. Boeing Co., No. C-81-4710

WHO (Dec. 18, 1981); Miyao v. Boeing Co., No. C-814711 WHO

(Dec. 18, 1981); Mukoda v. Boeing Co., No. C-81-5712 WHO

(Dec. 18, 1981); Shiwachi v. Boeing Co., No. C-81-4713 (Dec. 18,

1981); Suzuki v. Boeing Co., No. C-81-4714 WHO (Dec. 18, 1981);

Suzuki v. Boeing Co., No. C-81-4715 WHO (Dec. 18, 1981);

Takahashi v. Boeing Co., No. C-81-4716 WHO (Dec. 18, 1981);

Takahashi v. Boeing Co., No. C-81-4717 WHO (Dec. 18, 1981);

Tatsumi v. Boeing Co., No. C-814718 WHO (Dec. 18, 1981);

Tamada v. Boeing Co., No. C-81-4719 WHO (Dec. 18, 1981);

Yoshiwara v. Boeing Co., No. C-81-4720 WHO (Dec. 18, 1981);

Zayasu v. Boeing Co., No. C-814721 WHO (Dec. 18, 1981);

Hasegawa v. Boeing Co., No. C-814722 WHO (Dec. 18, 1981);

Kuno v. Boeing Co., No. C-81-4723 WHO (Dec. 18, 1981);

Mimura v. Boeing Co., No. C-81-4724 WHO (Dec. 18, 1981);

Cheng v. Boeing Co., No. C-82-0401 WHO (Jan. 21, 1982).

The first complaints filed by the Chinese plaintiffs on

September 18, 1981, and October 29, 1981, named as defendants

Boeing, The Garrett Corporation, The Signal Companies, Inc.,

Air Research Manufacturing Company of California, and Air Re-

search Aviation Company. Boeing filed its motion to dismiss on

grounds of forum non conveniens on December 9, 1981. The

Japanese complaints were iirst filed on December 18, 1981, and

named as defendants Boeing, United, and FEAT. On January 11,

1982, plaintiffs in the Chinese actions filed an amended com-

plaint, dismissing from the action all the defendants named in the

original complaint with the exception of Boeing, and adding

United as a defendant.

2 The motion to dismiss on grounds of forum non conveniens

was briefed and argued by Boeing, on behalf of both Boeing and

ground of forum non conveniens or, alternatively, to

transfer the actions pursuant to 28 U.S.C. § 1404(a) to

the United States District Court for the Western Dis-

United, and was taken under submission on January 22, 1982.

Pursuant to a stipulation of the parties, United was given until

March 2, 1982, to respwnd to the complaints. On February 26,

1982, this Court granted United’s motion for a further extension

of time to plead and ordered all matters stayed as to all parties

until such time as the Court rendered its decision on the motion

to dismiss.

Despite this Court’s order staying any further action by the

parties, plaintiffs continued to conduct informal discovery in sup-

port of their opposition to defendants’ motion, and submitted

additional documents to the Court pertaining to the cause of the

accident and the circumstances and terms of the sale of the air-

craft from United to FEAT in 1976. On March 8, 1982, the

Japanese plaintiffs filed a motion for inclusion in the record of

such additional documents, and on March 12, 1982, the Chinese

plaintiffs filed a motion seeking permission to file affidavits and

additional documents, or in the alternative, for an evidentiary

hearing on certain issues relevant to the forum non conveniens

motion.

Recognizing that further discovery might yield additional

information which could assist the Court in arriving at a conclu-

sive determination of the many issues raised by defendants’

motion, the Court notes that the very nature and purpose of the

forum non conveniens doctrine precludes unlimited discovery. As

the Supreme Court observed in Piper Aircraft Co. v. Reyno, 454

U.S. 235, 258, 102 S.Ct. 252, 267, 70 L.Ed.2d 419 (1981), “[rJe-

quiring extensive investigation would defeat the purpose of their

motion. Of course, defendants must provide enough information

to enable the District Court to balance the parties’ interests.”

This Court has reviewed the additional documents submitted by

plaintiffs, in order to ascertain whether those documents raise

any new issues which might affect the Court’s decision on defen-

dants’ motion. The Court is satisfied that the additional evidence

presented by plaintiffs would not in any event affect the Court’s

ultimate determination, and thus that an evidentiary hearing or

further briefing by the parties would serve no useful purpose.

Accordingly, these additional documents are not included in the

record, and the Court does not rely on the issues raised in said

documents in arriving at its decision.

trict of Washington.* For the reasons set forth below,

this Court finds that Taiwan is the appropriate forum

for this litigation and that the recent Supreme Court

decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235,

102 S. Ct. 252, 70 L.Ed.2d 419 (1981), mandates the

dismissal of these actions. Accordingly, defendants’ mo-

tion to dismiss is granted, and will become effective

when the Court receives undertakings satisfactory to

the Court from defendants Boeing and United that the

following conditions have been or will be met, namely,

that (1) the courts of Taiwan have, and will assert,

jurisdiction to adjudicate the claims alleged in these ac-

tions; (2) defendants consent to submit themselves to

personal jurisdiction in the appropriate Taiwanese

court and to make their employees available to testify

in Taiwan; (3) defendants agree to waive any statute of

limitations defenses arising during the pendency of

these actions; and (4) defendants consent to satisfy any

judgment rendered against them in Taiwan.

On August 22, 1981, a Boeing 737 owned and oper-

ated by FEAT crashed on a flight between the Taiwan-

ese cities of Taipei and Kaohsiung. Radar contact with

the aircraft was lost about twelve minutes after takeoff

from Taipei, after the aircraft reached its assigned

cruise altitude of 22,000 feet. A number of Taiwanese

reportedly observed the aircraft break up in the air.

The wreckage was scattered over a seven-mile area in

* Seattle, Washington is Boeing’s principal place of business

and is where the subject aircraft was originally designed,

assembled, and tested.

rugged terrain approximately sixty miles southwest of

Taipei. All one hundred four passengers and six crew

members aboard the aircraft were killed.

The Chinese Civil Aeronautics Administration

(“CCAA”) initiated an accident investigation, in which

Boeing, United, and other American officials partici-

pated. The CCAA issued a preliminary report, but has

made no final report and no finding of the probable

cause of the accident. The United States National Trans-

portation and Safety Board (“NTSB”) performed an

analysis of critical parts of the wreckage, and the

CCAA is currently in the process of building a mock-up

of the aircraft with the wreckage pieces to aid in its in-

vestigation.

FEAT purchased the aircraft from United in 1976,

and owned, operated, and maintained the aircraft in the

five-and-a-half years prior to the accident. All major

maintenance of the aircraft was performed by FEAT

personnel at Shungshan Airport in Taipei, pursuant to

a maintenance program developed by Boeing in the

United States, and licensed and approved by the

CCAA.

The complaints charge defendants with negligence

and strict liability based on the allegedly defec ive de-

sign, manufacture, and/or assembly of the aircraft, and

on the allegedly improper inspection and maintenance

of the aircraft prior to the sale to FEAT in 1976. Plain-

tiffs assert that of the possible causes of the crash—de-

fective design or manufacture, pilot error, bad weather,

or sabotage—the most likely cause was a crack in the

forward cargo compartment frame and skin which led

to a loss of pressurization. Plaintiffs have submitted

documentary evidence indicating that such cracks were

discovered in several 737’s operated in the United

States, and that an investigation conducted by the

NTSB revealed massive corrosion and metal fatigue of

the lower forward cargo hold frame which appears con-

sistent with plaintiffs’ theory of the accident.‘

[1, 2) Under the principle of forum non conve-

niens, a court may resist the imposition of jurisdiction,

even if jurisdiction is authorized by a general venue

statute. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67

S.Ct. 839, 91 L.Ed. 1055 (1947). The common law doc-

trine of forum non conveniens was partly displaced by

the provisions of 28 U.S.C. § 1404(a), which require

transfer rather than dismissal if the case can be heard

in a more convenient district or division within the

“In the time since January 22, 1982, when this Court took

defendanis’ forum non conveniens motion under submission,

plaintiffs have submitted additional evidence, including FAA Air-

worthiness Directives and Boeing Service Bulletins. This evi-

dence suggests that the aircraft was manufactured with a certain

sidewall frame defect and a certain bonded skin panel defect

which, alone or together, could be a probable cause of the

accident, and that both Boeing and United learned of these de-

fects prior to the sale in 1 Plaintiffs have also submitted

documents pertaining to the sales contract between United and

FEAT which, plaintiffs claim, demonstrates that United sold the

aircraft with knowledge of its defective condition. The facts

asserted in these documents, though relevant for purposes of

establishing a prima facie case of defect, do not affect this

Court’s decision on defendants’ motion. See note 2, supra.

’

United States;* the common law doctrine remains appli-

cable, however, when the action should have been

brought abroad. Yerostathis v. A. Luisi, Ltd., 380 F.2d

377, 379 (9th Cir. 1967); Paper Operations Consultants

International, Ltd. v. SS Hong Kong Amber, 513 F.2d

667, 670 (9th Cir. 1975).

[3] The factors which the Court must consider in

determining whether to grant a motion to dismiss on

grounds of forum non conveniens were set forth by the

Supreme Court in Gilbert, supra, 330 U.S. at 508-09, 67

S.Ct. at 843. The Court enumerated both the “private

interest factors” affecting the convenience of the liti-

gants and the “public interest factors” affecting the con-

venience of the forum. The private interest factors in-

clude “the relative ease of access to sources of proof;

availability of compulsory process for attendance of un-

willing, and the cost of obtaining attendance of willing,

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.” Jd. at 508, 67 S.Ct. at 843. The public in-

terest factors include the administrative difficulties

flowing from court congestion; the local interest in hav-

ing localized controversies at home; the interest in hav-

ing the trial of a diversity case in a forum that is at

home with the law that must govern the action; the

avoidance of unnecessary problems in conflicts of law,

*28 U.S.C. § 1404(a) provides that:

“For the convenience of parties and witnesses, in the in-

terest of justice, a district court may transfer any civil ac-

tion to any other district or division where it might have

been brought.”

or in application of foreign law; and the unfairness of

burdening citizens in an unrelated forum with jury

duty. Jd. at 509, 67 S.Ct. at 843.

The Court in Gilbert noted that the plaintiff's

choice of forum should not be disturbed “unless the

balance is strongly in favor of the defendant.” Jd. at

508. The Court of Appeals for the Ninth Circuit has

recently indicated that the standard to be applied is

whether, in light of the factors, defendants have made a

“clear showing” so as to establish either “(1) such

oppression and vexation of a defendant as to be out of

all proportion to the plai ‘ff’s convenience, which may

be shown to be slight or non-existent, or (2) make trial

in the chosen forum inappropriate because of considera-

tions affecting the court’s own administrative and legal

problems.” Miskow v. Boeing Co., No. 79-3904 (9th Cir.

Oct. 28, 1981),* quoting Paper Operations, supra, 513

F.2d at 670. Where the issue is whether to dismiss the

action or whether to transfer it to another district or

division within the United States, the Ninth Circuit

indicated in Miskow that dismissal is appropriate where

the district court weighs the Gilbert factors and

determines that transfer to another district or division

will not significantly alleviate the burden that retention

of jurisdiction would impose on private and public in-

terests. Id.

On December 8, 1981, after the filing of Boeing’s

motion to dismiss, the Supreme Court issued its first

* Miskow v. Boeing Co., No. 79-3404 (9th Cir. Oct. 28,

1981), was initially designated as a memorandum opinion, but

was designated as an opinion for publication by order dated

November 30, 1981.

decision addressing the doctrine of forum non con-

veniens in over thirty years, and applied the doctrine in

a factual context strikingly similar to that now before

this Court. In Reyno, supra, the Court elaborated

further on the considerations set forth in Gilbert and

applied the doctrine of forum non conveniens to dismiss

a products liability action arising out of an airplane

crash in Scotland on the grounds that Scotland was the

proper forum. Because this Court finds that Reyno is

dispositive of Boeing’s motion to dismiss these actions,

a detailed examination of the Reyno decision is appro-

priate. ,

In Reyno, the respondent, acting as representative

of the estates of several Scottish citizens killed in an air

crash in Scotland during a charter flight, instituted

wrongful death actions in California state court against

Piper Aircraft, which had designed and manufactured

the plane in Pennsylvania, and Hartzell Corporation,

which had manufactured the propellers in Ohio. At the

time of the crash the plane was registered in Great

Britain and was owned and operated by companies or-

ganized in the United Kingdom. The pilot and all of the

decedents’ heirs and next of kin were Scottish sub-

jects and citizens, and the investigation of the accident

was conducted by British authorities. Respondent

sought to recover from petitioners on the basis of negli-

gence or strict liability, the latter not recognized by

Scottish law, and admitted that the action was filed in

the United States because its laws regarding liability,

capacity to sue, and damages are more favorable to re-

spondent’s position than those of Scotland.

On petitioners’ motion, the action was removed to

the United States District Court for the Central Dis-

trict of California, and was then transferred to the

United States District Court for the Middle District of

Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The dis-

trict court granted petitioners’ motion to dismiss the ac-

tion on the ground of forum non conveniens. Relying

on the test set forth in Gilbert, and analyzing the pri-

vate interest factors affecting the forum’s convenience,

the district court concluded that Scotland was the ap-

propriate forum. The Court of Appeals for the Third

Circuit reversed, holding that the district court had

abused its discretion in conducting the Gilbert analysis

and that, in any event, dismissal is automatically

barred where the law of the alternative forum is less fa-

vorable to the plaintiff than the law of the forum chosen

by the plaintiff.

The Supreme Court granted a petition for a writ of

certiorari and reversed the court of appeals. The Court

held first that the fact that the substantive law that

would be applied in the alternative forum is less favor-

able to plaintiffs than that of the chosen forum does not

preclude dismissal and should ordinarily not be given

even substantial weight in the forum non conveniens

inquiry. Reyno, supra, 454 U.S. at 244-253, 102 S.Ct.

at 260-264. Second, the Court held that plaintiff’s

choice of forum deserves less deference when the plain-

tiff or the real parties in interest are foreign, because,

where the plaintiff is not suing in the home forum, the

assumption that the plaintiff’s choice of forum is conve-

nient is much less reasonable. Third, the Court held

that the district court did not abuse its discretion ir

weighing the private and public interests under the Gil-

bert analysis and determining that the trial should be

held in Scotland.’

With regard to the district court’s analysis of the

private interest factors, the Court found that the dis-

trict court reasonably conciuded that fewer evidentiary

problems would be posed if the trial were held in Scot-

land, because a large proportion of the relevant evi-

dence was located there, and that the problems posed

by the plaintiff’s inability to implead potential Scottish

third-party defendants (the pilot’s estate, the plane’s

owners, and the charter company) supported holding

the trial in Scotland. The Court also found the district

court’s analysis of the public interest factors to be rea-

sonable, noting that, even apart from the question

whether Scottish law might be applicable in part to the

action, all other public interest factors favored trial in

Scotland. The Court found that Scotland had a very

strong interest in the litigation, because the accident

occurred there, and all potential parties were either

’ Justice Marshall delivered the opinion of the Court, in

which Chief Justice Burger and Justices Blackmun and Renquist

joined. Justices Stevens and Brennan dissented on the grounds

that the only issue properly before the Court was whether

dismissal on the ground of forum non conveniens is barred where

the law of the alternate forum is less favorable to recovery than

that of the forum chosen by plaintiffs, and that the case should be

remanded to the Court of Appeals for further consideration of

whether the district court correctly concluded that Pennsylvania

a convenient forum in light of the factors set forth in

‘

Scottish or English. The Court rejected respondent’s

argument that the United States’ interest in deterring

the production of defective products in this country

justified retention of the litigation, noting that any ad-

ditional deterrence that might be obtained from trial in

an American court, where the manufacturer could be

sued on strict liability as well as negligence theories,

was not sufficient to justify the enormous commitment

of judicial time and resources that would be required.

Id. 454 U.S. at 258, 102 S.Ct. at 267.

[4] We turn now to the application of the several

factors which must be considered in determining

whether the applicable law mandates a dismissal or

transfer of the case pursuant to the doctrine of forum

non conveniens as set forth above.

1. The Availability of an Alternative Forum

The Supreme Court held in Reyno that, “{a]t the

outset of any forwm non conveniens inquiry, the court

must determine whether there exists an alternative

forum.” Reyno, supra, 454 U.S. at 254-255 n. 22, 102

S.Ct. at 265 n. 22. An alternative forum is ordinarily

considered “adequate” if the defendant is amenable to

process there. Gilbert, supra, 330 U.S. at 507, 67 S. Ct.

at 842. This Court’s consideration of defendants’ motion

to dismiss for forum non conveniens is premised on the

condition that defendants submit to the jurisdiction of

the Taiwanese court.*

* Several courts have conditioned forum non conveniens

dismissals upon the submission of defendants to the jurisdiction of

The Court recognized in Reyno, however, that

where the remedy afforded by the alternative forum is

so clearly unsatisfactory as to be no remedy at all, the

district court may conclude that dismissal would not be

in the interest of justice:

“In rare circumstances, however, where the rem-

edy offered by the other forum is clearly unsatis-

factory, the other forum may not be an adequate

alternative, and the initial requirement may not be

satisfied. Thus, for example, dismissal would not

be appropriate where the alternative forum does

not permit litigation of the subject matter of the

dispute.”

Reyno, supra, 454 U.S. at 254-255 n. 22, 102 S.Ct. at

265 n. 22.

Plaintiffs suggest that, under the reasoning in

Reyno, Taiwan is not an adequate forum on the

grounds that (1) a Taiwanese court would not have

jurisdiction over these actions; (2) the plaintiffs here

would not have easy access to a Taiwanese court, be-

cause Chinese law requires that plaintiffs pay a filing

fee amounting to one percent of the claim; and (3)

United States law would govern these actions, and the

the foreign court where such jurisdiction might otherwise be

uncertain, and some courts have added the further conditions

that defendants must waive any statute of limitations defenses in

the forum, and that, if the court refuses jurisdiction, plaintiffs

may move the court to restore their action. Such an approach

assures the availability of an alternative forum for plaintiffs. See,

e.g., Paper Operations Consultants International. Ltd., v. SS

Hong Kong Amber, 513 F.2d 667, 672 (9th Cir. 1975); Schertenleib

v. Traum, 589 F.2d 1156, 1166 (2d Cir.1978); Macedo v. Boeing

Co., 15 Av.Cas. (CCH) 18,082 (N.D.IIl. 1980), appea! pending,

No. 80-1559 (7th Cir.).

application of foreign law would pose serious difficulties

for a Taiwanese Court.

Plaintiffs rely heavily on the affidavit of Judge Yu

Ching Wang, a former district court judge in Taiwan,

who is currently an appellate judge and a member of

the Judicial Yuan, the highest judicial body of the Re-

public of China. After careful consideration of plaintiffs’

arguments, however, the Court finds that Taiwan is an

adequate forum and, indeed, is the most appropriate

forum for these plaintiffs.

Plaintiffs first argument is that Taiwan is an inade-

quate forum because the Chinese courts cannot at this

point assme jurisdiction over these cases. According to

Judge Wang, a Chinese court would have jurisdiction if

these actions were originally filed in Taiwan, but can no

longer assert such jurisdiction because the case has al-

ready been brought in the United States: “[SJhould the

United States District Court send the case to the

Republic of China with only the defendants’ agreement,

the Chinese court would not be competent to hear the

case.” Affidavit of Judge Yu Ching Wang attached to

plaintiffs’ motion filing affidavit filed January 22, 1982,

at 2.

Judge Wang’s conclusion is based on a misappre-

hension as to the nature of a dismissal for forum non

conveniens. This Court clearly is not empowered to

“send the case to the Republic of China with only the

defendants’ agreement”; this Court would simply dis-

miss the case, leaving the plaintiffs free to file these ac-

tions in Taiwan if they choose to do so. The affidavit of

defendants’ expert, Dr. Charng-Ven Chen, a practicing

attorney and law professor in Taipei, who has received

Master’s and Doctorate degrees from Harvard Law

School, states that a forwm non conveniens dismissal

would not foreclose these plaintiffs from initiating ac-

tions in Taiwan, and that there is no law or case author-

ity to the contrary. Dr. Chen’s affidavit further states

that the Taiwan court would have jurisdiction over

these cases pursuant to the Civil Code of Procedure of

the Republic of China, because the damage resulting

from the allegedly tortious conduct occurred in China.

Affidavit of Charng-Ven Chen in support of Boeing’s

motion to dismiss filed February 2, 1982, at 2.

The next argument advanced by plaintiffs is that

Taiwan is not an adequate forum because the Chinese

courts require payment of a filing fee amounting to one

percent of the claim, and an additional fee of one-half

percent is required for each appeal. The Court does not

find this argument persuasive. Judge Wang himself

notes that a party may obtain procedural relief from

payment of the fee if the party is “devoid of the means

to pay the cost.” Judge Wang suggests that such relief

is granted only in those cases where the plaintiff is

completely destitute, but the Court notes that the

plaintiffs here have not asserted that the filing fee re-

quirement would make it impossible for them to prose-

cute this action in China, or even that the fee would be

a serious hardship to them. Moreover, as Dr. Chen

points out in his affidavit, under Chinese law the pre-

vailing party may by court judgment recover the court

costs from the losing party. Finally, the Court notes

that the utilization of a filing fee is simply the method

chosen by the Taiwanese government to finance its

court system, and it seems fundamentally unfair to

compel United States’ citizens to “subsidize” an action

which should have been brought in another forum, at

least, where as here, the plaintiffs have not even at-

tempted to argue that the requirements of the foreign

judicial system constitute a serious obstacle. This Court

rejects plaintiffs’ contention that, should foreign laws

require advancement of funds by a litigant not

necessary in the United States, the foreign court must

be deemed an inadequate forum, finding such a position

without support in the case law or in common sense.®

Finally, plaintiffs contend that Taiwan is not an

adequate forum because, under Chinese choice of law

* See Dobson v. Amoco (U.K.) Exploration Co., No. 78-C-

2203 (N.D.Ill. Mar. 21, 1979), mem. op. at 5 (“Plaintiffs also

argue that they should be allowed to escape the English practice

of charging attorneys fees and costs to the losing party. * * *

[W]e can see no reason why this action, which has every con-

nection with England and none with the United States, should be

brought here simply to except it from rules which ordinarily

govern English lawsuits.”) cf. Fiorenza v. U.S. Steel Interna-

tional, Ltd., 311 F.Supp. 117 (S.D.N.Y.1969) (Where Italian

plaintiff asserted claim for injuries sustained on Grand Bahama

Island whle employed by defendant, a Delaware corporation with

its principal place of business in New York, and plaintiff could

not bring suit in the Bahamas because of Bahamian prohibition

against contingent fee arrangements, uncertainty as to whether a

Bahamian court would have jurisdiction, and the possibility that

plaintiff would be deported to Italy, the court found that the

prospective unavailability of the alternative forum outweighed

the other factors considered in Gilbert and denied defendants’

motion to dismiss for forum non conveniens.); D'Angelo v. Pe-

troleos Mexicanas, 398 F.Supp. 72 (D.Del.1975) (Delaware plain-

tiff, receiver of a Delaware corporation, who brought action

against Mexican government agency would not be dismissed on

forum non conveniens where plaintiff could not afford to travel to

Mexico to prosecute the action and where issues involving Mexi-

can law could be determined primarily on the basis of expert

testimony. ).

rules, a Chinese court would be required to apply

United States law to these actions, and the application

of foreign law would be extremely difficult. Judge

Wang asserts that:

As all of the wrongful acts allegedly occurred in the

United States and only the result occurred in the

Republic of China, our jurisprudential interpreta-

tions of ‘lex loci delicti’ mandates that the law of

the United States be applied in this case. * *

From my exp" ice as a District Judge and High

Court Judge, i personally feel it would be nearly

impossible for our court system to adequately

adjudicate this massive case against American de-

fendants according to American law.”

Wang affidavit, supra, at 2.

Under Gilbert, the choice of law issue is properly

considered in the context of the Court’s analysis of the

“public interest factors,” infra. For purposes of plain-

tiffs’ contention that the choice of law problem renders

Taiwan an inadequate forum, it is sufficient to note that

no case known to this Court has held an alternative

forum to be inadquate simply because of the potential

difficulties in applying foreign law, and this Court is un-

willing to accept the proposition that a Chinese court is

less competent than an American court in application of

foreign law. The Court agrees with the reasoning of Dr.

Chen that:

“Assuming for the sake of argument that the court

of the R.O.C. would apply the law of the place of

commission, i.e. U.S. laws, etc., the court of the

R.O.C. will apply such laws without difficulty,

otherwise the very existence of the Law of 6 June

1953 [“Law Governing the of Laws in

Civ Mattern Invclving Portion Kismosts”) noe

its meaning. Any suggestion that the court of the

ROC is not competent to analyse any foreign law is

subject to criticism of prejudice.”

Chen affidavit, supra, at 2-3.

Thus, this Court finds that the threshold re-

quirement of an adequate alternative forum is satisfied

in this case, and proceeds to an analysis of the private

and public interest factors set forth in Gilbert, and re-

affirmed in Reyno.

2. The Private Interest Factors

Perhaps the most important private interest factor

is the relative availability of evidence and witnesses.

Although relevant evidence and witnesses in this case

are located both in the United States and Taiwan, it

appears to the Court that discovery and trial on the

issues of liability and damages will be greatly facilitated

if this action proceeds in Taiwan.

Plaintiffs maintain that all of the documentary and

physical evidence necessary to establish that the air-

craft was defective is located in the United States. It

appears that the evidence relating to the design and

manufacture of the aircraft, maintenance records for

the period that the aircraft was operated by United,

documentation pertaining to 737 certification, and Boe-

ing Airworthiness Directives and Service Bulletins, are

all located in this country. Evidence pertaining to

FEAT’s maintenance, under the supervision of the

CCAA, of the aircraft during the five-and-a-half-year

period preceding the crash, however, is located in

Taiwan."® Evidence pertaining to the investigation of

* Defendants maintain that evidence concerning FEAT’s

maintenance of the aircraft in the five-and-a-half years prior to

the accident by the CCAA, as well as the critical parts

of the wreckage itself, appear to be in Taiwan."' A view

of the premises is obviously available only in Taiwan,

and might assist defendants in establishing that the ac-

cident was caused wholly or in part by something other

than a defective airframe. Moreover, virtually all of the

evidence relating to proof of damages is in Taiwan,

where the overwhelming majority of claimants reside,

and the difficulties of adjudicating these foreign dam-

age claims would be compounded by the presence of

language barriers and the necessity for translation. '?

As to the availability of witnesses, the Court must

consider both the availability of compulsory process for

attendance of unwilling witnesses, and the cost of ob-

taining willing witnesses. Plaintiffs assert that all of the

the crash is of much greater relevance to plaintiffs’ claim than is

evidence concerning United’s maintenance of the aircraft prior to

1976, particularly in view of the Boeing Service Bulletins recom-

mending periodic inspections of the airframe, and FEAT’s claim

to have inspected the aircraft repeatedly in accordance with

Boeing Service Bulletins in the two months preceding the acci-

dent. However, plaintiffs contend that Boeing personnel present

in Taiwan immediately after the accident had ample opportunity

to gather evidence pertaining to FEAT’s maintenance of the

aircraft, and did in fact collect significant amounts of such evi-

dence.

" Plaintiffs claim that critical parts of the wreckage were

brought to the United States for examination by Boeing and the

NTSB; it appears, however, that the parts given to Boeing by

the CCAA have since been returned to Taiwan and are presently

under the control of the CCAA. Defendants also point out that

the CCAA is currently in the process of constructing a mock-up

of the forward area of the aircraft fuselage in Taiwan to assist in

their investigation.

“ Plaintiffs properly point out that, as a practical matter, the

of settlement in the event that defendants are found

liable may render d'scovery and trial of damages unnecessary.

witnesses who can testify as to the design and manufac-

ture of the aircraft, and the maintenance of the craft

prior to the sale, are located in the United States. All

these witnesses are clearly subject to process in this

Court, and it is clearly more convenient for such wit-

nesses to attend trial in this country than in Taiwan. On

the other hand, all witnesses to the air crash, all wit-

nesses who could testify as to the inspection and main-

tenance of the aircraft by FEAT and to supervision by

the CCAA, and all witnesses who could testify regard-

ing the investigation of the accident by Taiwanese au-

thorities, as well as witnesses who knew the decedents

and whose testimony would be necessary to ascertain

damages, are located in Taiwan. It is doubtful whether

this Court could enforce process compelling the atten-

dance of persons with relevantgknowledge who are not

parties to this litigation, and compelling the litigants to

try their case without the benefit of live testimony from

important witnesses would impose a serious hardship

upon them and upon this Court. The Supreme Court in

Gilbert emphasized the importance of this factor, and

said that:

“(t]o fix the place of trial at a point where litigants

cannot compel personal attendance and may be

forced to try their cases on deposition, is to create

a condition not satisfactory to court, jury or most

litigants.”

Gilbert, supra, 330 U.S. at 511, 67 S.Ct. at 844. Al

though mechanisms for obtaining necessary documents

and testimony from abroad exist, various procedural

obstacles would no doubt limit the availability and

scope of foreign discovery to the parties if trial were

conducted in the United States."

Another critical private interest factor, in addition

to the availability of evidence and witnesses, is the

Court’s ability to assert jurisdiction over all parties to

the litigation, including potential third-party defen-

dants. The Court said in Reyno that the aircraft manu-

facturer should not be compelled to go to trial in a

forum where the owner and operator of the aircraft

cannot be joined:

“Joinder of the pilot’s estate, Air Navigation, and

McDonald is crucial to the presentation of petition-

ers’ defense. If Piper and Hartzell can show that

the accident was caused not by a design defect, but

rather by the negligence of the pilot, the plane’s

owners, or the charter company, they will be re-

lieved of all liability. It is true, of course, that if

Hartzell and Piper were found liable after a trial in

the United States, they could institute an action

for indemnity or contribution against these parties

in Scotland. It would be far more convenient, how-

ever, to resolve all claims in one trial.”

Reyno, supra, 454 U.S. at 259, 102 S.Ct. at 267.

In the case at bar, the presence at trial of FEAT,

the owner and operator of the aircraft for the five-and-

one-half years preceding the accident, and of the

CCAA, the Chinese regulatory authority, is critical to

the defense. It is highly unlikely that the CCAA, as a

** The problems inherent in conducting discovery abroad are

well described in Pain v. United Technologies Corp., 637 F.2d

775 (D.C. Cir. 1980).

foreign governmental agency, could be joined as a party

in this action, and it is uncertain whether FEAT would

be subject to general jurisdiction or specific tort juris-

diction based on its transaction of business in Califor-

nia.’* Plaintiffs’ offer to indemnify the defendants for

any liability apportioned by this Court to FEAT and

the CCAA does not, in the opinion of this Court, elimi-

nate the prejudice to defendants arising from their po-

tential inability to implead third-party defendants, be-

cause, as a practical matter, the trier of fact cannot be

‘* Although no United States court has yet attempted to

assert jurisdiction over FEAT, certain documents recently sub-

mitted by plaintiffs describing the circumstances and terms of the

sales contract between FEAT and United raise the possibility

that FEAT might be subject to California’s specific tort jurisdic-

tion in this case. The documents indicate that FEAT and United

conducted negotiations in California, and that the sales agreement

provided for continuing servicing transactions in this state and

for the training of FEAT maintenance personnel in this state.

Thus, the case at bar appears distinguishable from Donahue v.

Far Eastern Transport Corp., 652 F.2d 1082 (D.C.Cir.1981), in

which the court found that FEAT’s activities within the state

were insufficient to support the exercise of the Court’s general

jurisdiction, and that FEAT’s isolated and relatively minor

activities within the state were insufficient to support the

exercise of that state’s specific tort jurisdiction because those

activities were totally unrelated to the accident for which re-

covery was sought in that case. The Donahue court specifically

noted, however, that the commission of “some single or occa-

sional acts” in a state might be sufficient to render a corporation

time and does not rely on the unavailability of FEAT as a neces-

sary ground for granting defendants’ forum non convenienc

expected to evaluate fairly the relative liability of par-

ties not present at the trial.

3. The Public Interest Factors

A consideration of the public interest factors enu-

merated by the Supreme Court in Gilbert place beyond

all doubt any question that this Court might have had

regarding the proper forum for the trial of this lawsuit.

Clearly the balance tips decidedly against the apie

choice of forum. :

The three principles underlying the public interest

factors have been aptly summarized by the D.C. Circuit

in Pain v. United Technologies Corp., 687 F.2d 775

(1980), a decision which the Supreme Court cited with

approval in Reyno:

“[F Jirst, that courts may validly protect their dock-

ets from cases which arise within their jurisdiction,

but which lack significant connection to it; second,

that courts may legitimately encourage trial of con-

troversies in the localities in which they arise; and

third, that a court may validly consider its famili-

arity with governing law when deciding whether or

not to retain jurisdiction over a case. Thus, even

when the private conveniences of the litigants are

nearly in balance, a trial court has discretion to

grant forum non conveniens upon finding that re-

tention of jurisdiction would be unduly burden-

some to the community, that there is little or no

public interest in the dispute, or that foreign law

will predominate if jurisdiction is retained.”

(Footnotes omitted; emphasis added). Jd. at 791-92.

It is beyond dispute that the docket of this Court is

heavily congested, and that the Court can ill afford the

time and expense of adjudicating a controversy which

does not have significant connections to this forum, par-

ticularly where, as here, tlie case will require a massive

expenditure of judicial resources. The Supreme Court

in Reyno emphasized the principle that “there is a local

interest in having localized controversies decided at

home,” Reyno, supra, 454 U.S. at 260, 102 S.Ct. 268;

and found that Scotland had a “very strong interest” in

the case because “the accident occurred in its airspace,

the decedents were Scottish and, apart from Piper and

Hartzell, all potential plaintiffs and defendants were

either Scottish or English.” Jd. at 454 U.S. at 260, 102

S.Ct. at 268. Applying this reasoning to the case at bar,

which involves an accident in Taiwan airspace, a

Taiwan-registered aircraft operated by a Taiwan air-

line, and predominantly (87 of 110) Taiwanese dece-

dents, it would appear that Taiwan has a strong local

interest in this litigation.

Plaintiffs seek to establish a nexus with the United

States by characterizing these actions as American

products liability actions, stressing that the aircraft

was designed and manufactured in this country and

that the aircraft was-inspected and maintained in accor-

dance with the United States regulatory scheme. Plain-

tiffs suggest that, because Boeing aircraft are utilized

extensively in the United States, this country has a

predominant interest in retaining this litigation in order

to deter the production of defective aircraft in the

future.

The Supreme Court in Reyno expressly rejected

the position urged by plaintiffs here, indicating that the

interest of the United States in deterring the produc-

tion of defective products was not sufficient to justify

retention of the litigation:

“Respondent argues that American citizens have

an interest in ensuring that American manufac-

turers are deterred from producing defective prod-

ucts, and that additional deterrence might be ob-

tained if Piper and Hartzell were tried in the

United States, where they could be sued on the

basis of both negligence and strict liability. How-

ever, the incremental deterrence that would be

gained if this trial were held in an American court

is likely to be insignificant. The American interest

in this accident is simply not sufficient to justify

the enormous commitment of judicial time and re-

sources that would inevitably be required if the

case were to be tried here.”

Id. at 454 U.S. at 260-261, 102 S.Ct. at 268. The case at

bar would require a much greater “commitment of ju-

dicial time and resources” than Reyno; and plaintiffs

cannot, by characterizing their causes of action as prod-

uct liability claims against American defendants, escape

the fact that these claims arise in the context of a Tai-

wanese accident and that Taiwan has the predominant

interest in this litigation."

'* The reasoning relied upon by the court in Macedo, supra

note 8, 15 Av.Cas. at 18,034, is equally applicable here:

“The fact that the aircraft was manufactured in the United

States does not make the accident, involving a Portuguese

airline, an airport in Portugal, predominantly Portuguese

——_

The Supreme Court indicated in Gilbert and Reyno

that another public interest factor supporting dismissal

for forum non conveniens, in addition to the adminis-

trative burden on a forum which has only minimal con-

tact with the controversy, and the local interest which

another forum may have in the controversy, is the nec-

essity of applying foreign law or of grappling with diffi-

cult choice of law questions. This Court must apply the

choice of law rules of the California state courts,

Klaxon Co. v. Stentor Electric Manufacturing Co., 313

U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and fol-

low the “governmental interest” approach to determine

whether the law of Taiwan or that of the United States

would govern this action. Reich v. Purcell, 67 Cal.2d

551, 63 Cal.Rptr. 31, 482 P.2d 727 (1967).

In Hurtado v. Superior Court, 11 (Cal.3d 574, 114

Cal.Rptr. 106, 522 P.2d 666 (1974), the California Su-

preme Court enumerated the three distinct govern-

mental interests which may be implicated in wrongful

death actions: (1) compensation for resident survivors;

(2) deterrence of wrongful conduct within the jurisdic-

tion; and (3) limitations upon the amount of damages

recoverable. The parties have not suggested that the

third factor, limitations upon damages, is of concern in

the instant case. With regard to the most important

governmental interest, the interest in compensating

resident survivors, it is clear that Taiwan has the much

greater interest since the vast majority of the beneficia-

ries are Taiwanese and the burden of supporting those

survivors would fall upon the government of Taiwan."*

** See Bouvy-Loggers v. Pan American World Airways, Inc.,

15 Av.Cas. (CCH) 17,158, 17,155 (S.D.N. Y.1978) (“Here, The

With regard to the governmental interest in deterring

wrongful conduct, plaintiffs correctly note that the

United States has an interest in deterring the produc-

tion of defective aircraft which are heavily used in this

country. In view of the relatively limited weight which

the Supreme Court accorded to this interest in Reyno,

however, and the fact that Taiwan has by far the pre-

dominant interest in assuring that its residents receive

compensation, this Court finds it quite possible that

Chinese law would be applied to this action, and thus

that the action is more appropriately tried by a court

familiar with Chinese law.

Finally, plaintiffs contend that the presence of

United States plaintiffs in this action precludes the

granting of defendants’ motion to dismiss under the cir-

cumstances presented here. Plaintiffs attempt to dis-

tinguish Reyno on the grounds that all the plaintiffs in

that case were foreign, and that an Americaaplaintiff’s

choice of forum must be accorded greater deference.

The Supreme Court noted in Reyno that there is

ordinarily a strong presumption in favor of the plain-

tiffs choice of forum, which may be overcome only

when the private and public interest factors clearly

point towards trial in the alternative forum, and

indicated that a plaintiff’s choice of forum is entitled to

greater deference when the plaintiff has chosen the

home forum. Reyno, supra, 454 U.S. at 257-259, 102

S.Ct. at 264-266. The Supreme Court went on to stress,

Netherlands has a strong interest in ensuring that this Dutch

decedent’s heirs are adequately compensated, for if they are not,

responsibility for supporting them.”).

however, that a plainitff’s right to sue in his home

forum is by no means absolute, but rather must be

evaluated in the context of the many other factors rele-

vant to the convenience of the parties and of the Court:

“A citizens forum choice should not be given

disposition weight, however. * * * Citizens or

residents deserve somewhat more deference than

foreign plaintiffs, but dismissal should not be auto-

matically barred when a plaintiff has filed suit in

his home forum. As always, if the balance of con-

veniences suggests that trial in the chosen forum

would be unnecessarily burdensome for the defen-

dant or the court, dismissal is proper.”

Id. at 255-256 n. 23, 102 S.Ct. at 266 n. 23. (emphasis

added). The federal courts have not felt constrained to

retain jurisdiction over predominantly foreign cases

involving American plaintiffs where an examination of

the Gilbert factors demonstrated that the action is more

appropriately Srought in a foreign forum.'’

Although recognizing the deference properly ac-

corded to a plaintiff’s choice of forum, particularly in

‘7 One of the most recent decisions addressing this issue,

Dasi v. Air-India, No. 79 Civ. 4898 (RWS) (S.D.N.Y. Jan. 26,

1981), slip op. at 5, dismissing for forum non conveniens on the

grounds that France was the appropriate forum for the action,

noted:

“No special or ‘talismanic’ significance is attached to the

fact that an American plaintiff who brought the action in a

United States District Court would otherwise be relegated

to a foreign forum. While it is said that the courts are ‘reluc-

tant’ to sanction sending an American citizen abroad to

litigate on the ground of forum non conveniens, that reluc-

tance has not been so profound in practice, and such cases

are to be analyzed according to the same Gulf Oil factors,

with the American plaintiff sufficiently protected by the ad-

regard to the American plaintiffs in this action, the

Court finds that the plaintiffs’ choice of an American

forum is here outweighed by the private and public

interest factors pointing towards dismissal of this

action, and that the presence of a handful of American

plaintiffs does not preclude such dismissal.'* The Court

finds that defendants have satisfied the standard set

forth by the Ninth Circuit in Paper Operations, supra,

513 F.2d at 670, by making a “clear showing” that “trial

in the chosen forum [is] inappropriate because of con-

siderations affecting the court’s own administrative and

legal problems,” and thus it is not necessary for

defendants to establish “such oppression and vexation

* * * as to be out of proportion to the plaintiff’s con-

venience.”

The Court also finds that the Western District of

Washington is not a significantly more convenient

monition of the Gulf Oil court that ‘unféss the balance [of

conveniences] is strongly in favor of the defendant, the plain-

tiff's choice of forum should rarely be disturbed,’ and the

burden thus placed upon the movant-defendant. In deciding a

motion to dismiss on the ground of forum non conveniens, the

court properly considers affidavits submitted by the parties.”

(Citations omitted.)

‘* Insofar as plaintiffs have vigorously asserted that the exis-

tence of treaties between the United States and China and Japan

regarding access by citizens of those countries to the United

States courts renders this Court’s consideration of the plaintiffs’

residence improper, the Court notes that such treaties do not

immunize foreign citizens from application of the forum non con-

veniens doctrine and that the residency of the parties is a

relevant factor in a forum non conveniens inquiry to the extent

that it bears upon the location of evidence and witnesses, the

court’s ability to exercise its jurisdiction over the parties, and the

public interest in the litigation.

forum, on the grounds that transfer would not signifi-

cantly alleviate the burden that retention of jurisdiction

would impose on private and public interest. While it is

true that the principal place of business of defendant

Boeing is in the Seattle area, the Court’s analysis of the

pertinent private and public interest factors compels

the conclusion that Taiwan is the appropriate forum for

these actions.

Accordingly, IT IS HEREBY ORDERED that de-

fendant Boeing’s motion to dismiss on the ground of

forum non conveniens is granted and will become

effective when this Court receives undertakings

satisfactory to this Court from defendants Boeing and

United that the following conditions have been or will

be met, namely, that:

1. The courts of Taiwan have, and will assert,

jurisdiction over these actions.

2. Defendants will submit themselves to the juris-

diction of the Taiwanese court, and will make their

employees available to testify in Taiwan.

3. Defendants agree to waive any statute of limita-

tions claims arising from the date that these actions

were filed to the date that this Order dismissing the

complaints becomes effective.

4. Defendants consent to satisfy any judgment

that may be rendered against them in Taiwan.

IT IS FURTHER ORDERED that all actions filed

in this Court against Boeing and/or United arising from

the airplane crash which is the subject of this Opinion

and Order not heretofore consolidated with these

actions be and they are hereby so consolidated for all

purposes and are accordingly DISMISSED. All motions

filed in any or all of said actions are DENIED.

No motion or motions for reconsideration will be

entertained by this Court.

Defendant Boeing will prepare and lodge with the

Court on or before April 26, 1982, a judgment

consistent with this Opinion and Order.

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LuI Su NAI-CHAO, ET AL.,

Plaintiffs,

No. C-81-4235 WHO

Vs.

THE BOEING COMPANY, ET AL..,

Defendants.

NOTICE OF ENTRY OF

JUDGMENT OF DISMISSAL

AND CONSOLIDATED OR RELATED CASE NOS.

C-81-3702 WHO, C-81-3703 WHO, C-814710 WHO,

C-814711 WHO, C-814712 WHO, C-814713 WHO,

C-81-4714 WHO, C-814715 WHO, C-814716 WHO,

C-814717 WHO, C-814718 WHO, C-814719 WHO,

C-814720 WHO, C-814721 WHO, C-81-4722 WHO,

C-81-4723 WHO, C-814724 WHO, C-82-0401 WHO

TO ALL PARTIES AND THEIR ATTORNEYS

OF RECORD:

PLEASE TAKE NOTICE that the above entitled

Court, on April 27, 1982 executed and entered the at-

tached Judgment of Dismissal.

Dated: April 28, 1982.

MARRON, REID & SHEEHY

MICHAEL R. MARRON

/s/

Michael R. Marron

Attorneys for Defendant

THE BOEING COMPANY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Lul Su Nal-CHao, ET AL.,

Plaintiffs,

No. C-81-4235 WHO

VS.

THE BOEING COMPANY, ET AL.,

Defendants.

JUDGMENT OF DISMISSAL

AND CONSOLIDATED OR RELATED CASE NOS.

C-81-3702 WHO, C-81-3703 WHO, C-814710 WHO,

C-814711 WHO, C-814712 WHO, C-814713 WHO,

C-814714 WHO, C-81-4715 WHO, C-814716 WHO,

C-81-4717 WHO, C-814718 WHO, C-814719 WHO,

C-81-4720 WHO, C-81-4721 WHO, C-81-4722 WHO,

C-814723 WHO, C-814724 WHO, C-82-0401 WHO

The motion of defendant THE BOEING COM-

PANY (“BOEING”) to dismiss on ground of forum non

conveniens or to transfer under Federal Rules of Civil

Procedure Rule 12(b) and Section 1404(a) of Title 28,

United States Code, also acting on behalf of defendant

UNITED AIRLINES, INC. (“UNITED”), having come

on before this Court for hearing on January 22, 1982,

in the above captioned consolidated or related matters,

and the Court having considered the motion papers, in-

cluding extensive points and authorities, appendices

and declarations filed by the parties, the arguments of

counsel, and other written submissions, and the said

defendants having filed undertakings satisfactory to the

Court, pursuant to Opinion and Order of this Court filed

April 13, 1982, showing that:

1. The courts of Taiwan have, and will assert, juris-

diction over these actions if properly filed by plaintiffs

in Taiwanese courts in compliance with Taiwanese law;

2. Defendants will submit themselves to the juris-

diction of the Taiwanese court, and will make their em-

ployees available to testify in Taiwan;

3. Defendants agree to waive any statute of limita-

tions claims arising from the date that these actions

were filed to the date that this Order dismissing the

complaints becomes effective;

4. Defendants consent to satisfy any judgment that

may be rendered against them in Taiwan;

and the Court being fully advised in the premises,

IT IS ORDERED, ADJUDGED AND DECREED

that the said motion to dismiss on grounds of forum non

conveniens be granted and that the above consolidated

and related cases, and each of them, be, and the same

hereby are, DISMISSED.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that all actions filed in or hereinafter trans-

ferred to this Court arising from the airplane crash

which is the subject of this litigation, not heretofore

consolidated with these actions, be and they are hereby

so consolidated for all purposes and are accordingly

DISMISSED.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that all other motions filed in any or all of

said actions be and the same hereby are DENIED.

Dated: 27 April 1982.

/s/ WILLIAM H. ORRICK

Judge, United States District Court

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NINA CHENG, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF

THOMAS T. O. CHENG, DECEASED, ET AL.,

Plaintiffs-Appellants,

CA Nos. 82-4267, 82-4283,

82-4284, and 82-4288

through 82-4302

VERSUS

THE BOEING COMPANY, ET AL.,

Defendants-Appellees.

DC Nos. CY-81-4710 through

4724 and 81-4235

(Northern California)

SHUNSAKU HARADA AND MASA HARADA, IN THEIR

INDIVIDUAL CAPACITIES AND AS HEIRS AT LAW AND

LEGAL SUCCESSORS OF AKIKO HARADA,

DECEASED, ET AL.,

Plaintiffs-Appellants,

VERSUS

THE BOEING COMPANY, ET AL.,

Defendants-Appellees.

Lur Su NAI-CHAO, ET AL.,

Plaintiffs-Appellants,

VERSUS

THE BOEING ComPANyY, ET AL.,

Defendants-Appellees.

Before: MERRILL, SNEED, and FARRIS,

Circuit Judges.

The petitions for rehearing filed July 5, 1983 and

July 8, 1983 are denied.

APPENDIX E

Excerpts from Statutes and Treaties

Federal Aviation Act, 49 U.S.C. §§ 1423, 1425, 1428-

1430

Taiwan Relations Act, Pub. Law 96-8 (1979), sec. 4(b)7,

93 Stat 16 [22 U.S.C. § 3303(b)(7)] and sec. 4(c)

(22 U.S.C. § 3303(c)]; See. 15(2) [22 U.S.C. § 3314(2)]

Treaty of Friendship, Commerce and Navigation Be-

tween the United States of America and The Re-

public of China (1974), Art. VI, § 4

FEDERAL AVIATION ACT

49 § 1423. Aircraft certificates

Authorization to issue; application; investigation;

tests; iss

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