# Petition — Lui Su Nai-Chao v. Boeing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0830%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 1017 ## Text 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 i 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. iv 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- Vv 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. vi 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. ix 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- x 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. xi 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 XV 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 XX 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. © cs Ubndbeccsavecuauaunneenwen oes 76 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. 2 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. 3 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. 4 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. 5 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 19. " Id. at 20. * Id. 6 “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. © 555 F. Supp at 19, 20, 21-22: 708 F.2d at 1411. '* 708 F.2d at 1409. 8 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). 9 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). 10 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.” 1] 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. 12 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). 13 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); 14 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). 15 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). 16 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. 17 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. 18 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. 19 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. 20 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. 21 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). 22 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. © 555 F. Supp. at 21-22; 708 F.2d at 1411. Alcoa Steamship 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 23 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). 24 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 25 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 26 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 27 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. VA 28 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 29 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 Fe 30 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. 31 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 32 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 33 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- 34 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 35 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 a 36 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 37 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- 38 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- 39 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. 40 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. 41 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. 42 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 43 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. At 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. 45 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 46 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.‘ Il A [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. ’ ~~ 47 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.” 48 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. 49 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 50 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- 51 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 ‘ : : a q | : 52 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. B [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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0830%3A1. Public record. Not legal advice.