Opposition Brief — Sibaja v. Dow Chemical Co.

Supreme Court, U.S.

FILED

OCT 16 198

NO. 85-454 JOSEPH F. SPANIOL, JR.

CLERK

in the

Supreme Court

of the

United States

OCTOBER TERM, 1°35

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS, ET AL

Petitioners,

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vs.

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY

Respondents.

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On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONDENT SHELL OIL COMPANY’S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BERT BALLAFANT and SHERRYLL MARTENS DUNAJ

SHELL OIL CO. FOWLER, WHITE. BURNETT,

Legal Department HURLEY, BANICK &

Litigation Section STRICKROOT, P.A.

P.O. Box 2463, Room 4794 City National Bank Building

One Shell Plaza 25 West Flagler Street

Houston, Texas Miami, Florida 33130

(713) 241-7023 (305) 358-6550

Counsel of Record for Respondent

Shell Oil Company

QUESTION PRESENTED FOR REVIEW

Respondent Shell Oil Company disagrees with the

Petitioners’ statement of the question presented for

review. There may some day be a case which presents

in a factually ripe posture the issue suggested by

Petitioners. It may even arise in Florida. This is not

that case, however, because regardless of whether the

district court applied state or federal principals of forum

non conveniens, the result in this instance would be the

same.

There is no Erie’ issue. As was true in Piper

AirCraft Co. v. Reyno, 454 U.S. 235 (1981) and Gulf Ol

Corp. v. Gilbert, 330 U.S. 501 (1947), “the result of

[Florida] standards that guide discretion is, so far as

here involved, the same as the federal rule.” Gulf Oil,

supra at 509. Furthermore, if in fact this is an issue

which could only arise in Florida, and is therefore

Florida-peculiar, as Petitioners suggest, it must surely

be questioned whether even a case presenting the issue

in a proper factual posture would raise itself to one

presenting “an important question of federal law” which

“should be” settled by this Court. Sup.Ct.R. 17.

Consequently, the sole and only question which

could here be presented for review is whether the

court below abused its discretion in affirming the dismissal

upon the doctrine of forum non conveniens of this

transitory action which arose in Costa Rica and was

brought by Costa Rican citizens and residents. And,

that question presents neither an important question

‘Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

of undecided federal law nor one in conflict with any

applicable decision of this Court. Neither does this

case call for any exercise of this Court’s supervisory

powers.

PARTIES

No party to this action is a citizen of Florida.

Respondents are Shell Oil Company and Dow Chemical

Company, both incorporated in the State of Delaware.

Dow Chemical Company has its principal place of business

in the State of Michigan; Sheli Oil Company has its

principal place of business in the State of Texas. Neither

Respondent corporation has a principal place of business

in the State of Florida, and neither is a Florida corporation.

Petitioners are 58 Costa Rican citizens, all of whom

reside in Costa Rica, where the alleged injuries occurred;

their names have all been listed in Petitioners’ Petition

repeated. However, pursuant to Rule 28(1), Shell Oil

Company lists below all its United States affiliated

companies and subsidiaries, which are not wholly owned,

as defined in said Rule.’

*Quazite Corporation (Houston, Texas), First Harlem Securities

Corp. (New York, New York), Gravecap, Inc. (Schaumburg, Illinois),

Heat Transfer Research, Inc. (S. Pasadena, California), Huntsman

Chemical Co. (Salt Lake City, Utah), Inland Corp. (Cleveland,

Ohio), LOOP, Inc. (New Orleans, Louisiana), Lucky Chance Mining

Co., Inc. (Reno, Nevada), MESBIC Financial Corp. of Houston

(Houston, Texas), and Seadock, Inc. (Freeport, Texas).

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....

Ee ST OL

pe eg _.

JURISDICTION OF THIS Se

STATUTE INVOLVED—RESPONSE ..........

STATEMENT OF THE CASE ..............

ARGUMENT

THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED ......

ee oe oe ee ee ee

CERTIFICATE OF SERVICE .................

iil

Page

TABLE OF AUTHORITIES

Cases Pages

Adams v. Seaboard Coastline Railroad Co.,

224 So.2d 797 (Fla.App. 1969) ................ 4

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

654 F.2d 147 (2nd Cir. 1978) ................. 3

Autry v. Seaboard Coastline R.R. Co.,

32 Fla.Supp. 53 (Cir.Ct. 1968) .............. 6,7

Baker v. Atlantic Coastline Railroad Co.,

21 Fla.Supp. 21 (Cir.Ct. 1963) .............. 6,7

Bishop v. Florida Special Paint Company,

389 So.2d 999 (Fla. 1980) ................... 13

Brown v. Pyle,

310 F.2d 95, 97 (5th Cir. 1962) ............... 12

Byrd v. Blue Ridge Rural Electric Cooperative,

eee 11,12

Cochrane v. Iowa Beef Processors,

596 F.2d 254, 260 (8th Cir. 1979) ............. 12

Day & Zimmermann, Inc. v. Challoner,

SR ee So eee 13

Donovan v. Penn Shipping Company, Inc.,

429 U.S. 648, 649-650 (1977) ................ 12

TABLE OF AUTHORITIES (Continued)

Cases Pages

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) .......... i, ix, 9, 11, 12, 18, 15

Faulkner v. S.A. Empresa de Viaco Airea Rio Grand,

222 So.2d 805 (Fla.App. 1969) .............. 6, 7

Ganem v. de Issa,

225 So.2d 564 (Fla.App. 1969) ............... 6

Guaranty Trust Company v. York,

EE SCR oe. RSA Vee eee twee 11

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947) ............. i, 2, 4, 6, 7, 8, 15

Hagen v. Viney,

124 Fla. 747, 169 So.391 (Fla. 1936) ........... 5

Hanna v. Plumer,

Bee Shs ey SU CRE os ke vec c eel 11,13

Hodson v. A.H. Robins Company, Inc.,

528 F.Supp. 809, 817 (E.D. Va.1981).......... 12

Houston v. Caldwell,

359 So.2d 858, 861 (Fla. 1978), rev’g

347 So.2d 1041 (Fla.App. 1977) ............. 4,8

TABLE OF AUTHORITIES (Continued)

Cases Pages

Hubbard v. Southern Railway Co.,

14 Fla.Supp. 10 (Cir.Ct. 1959) .............. 6, 7

In Re Richardson-Merrill, Inc.,

545 F.Supp. 1130, 1132 (S.D. Ohio 1982)

aff'd 727 F.2d 608 (6th Cir. 1984)............. 12

Killingsworth v. Montgomery Ward & Co.,

327 So.2d 50 (Fla.App. 1976) ................ 6

Alaxton v. Stentor Electric Company, Inc.,

See Ware SEE 45 0 5s Fee eae eee 13

Leroy v. Great Western United Corp.,

443 U.S. TVS, TOD CRGTOD «wis ccwccens 2, 10

Meily v. Agricultural Investment Corp., S.A.,

VO SOMA CE CHOUEE sg ov kc a vk eves usnguees 6,7

Miller v. Davis,

507 F.2d 308 (6th Cir. 1974) ................. 12

Missouri ex rel. Southern Ry Co. v. Mayfield,

ee Ss © I Sg Ana en hehe eee 9

Murphee v. Mississippi Publishing Corporation,

149 F.2d 138, 140 (5th Cir. 1945) ............. 12

vi

TABLE OF AUTHORITIES (Continued)

Cases Pages

PI, Inc. v. Valcoun Imprinted Papers, Inc.,

465 F.Supp. 1218 (S.D.N.Y. 1979) ............ 10

Piper AirCraft Co. v. Reyno,

ee I ee eck oA USA tees i, 4

Seaboard Coastline R. v. Swain,

362 So.2d 17 (Fla. 1978) ................... 5, 8

Seaboard Coastline Railroad Co. v. Swain,

f 3 bg . ee ee 5, 8

Sempe v. Coordinated Caribbean Transport, Inc.,

363 So.2d 194, 197 (Fla.App. 1978) ........... 5

Shaw v. Seaboard Coast Line Ry,

229 So.2d 275 (Fla.App. 1969) ............... 8

Simler v. Conner,

gk & 6 anne aan 12

Southern Railway Co. v. Bowling,

129 So.2d 433 (Fla.App. 1961) ............... 6

Southern Railway Co. v. McCubbins,

196 So.2d 512 (Fla.App. 1967) ............... 6

Underwood v. University of Kentucky,

390 So.2d 433 (Fla.App. 1980) .............. 6, 8

vil

TABLE OF AUTHORITIES (Continued)

Cases

Waite v. Summit Leasing & Capital

International Corp.,

441 So.2d 185 (Fla. App.) ...........

OTHER AUTHORITIES

Civil Code of Costa Rica,

Article 6, 1045-1048 ................

Labor Code of Cesta Rica,

Pp ) re re

Code of Civil Procedures of Costa Rica,

SE ag SS a ee ae ee ee

1 Moore’s Federal Practice,

ee eee

28 U.S.C. §1254(1) . 6... eee eee

Restatement (Second) of Conflict of Laws,

§§145-146 (1971)... 22... eee

Rules of Decision Act,

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Pages

JURISDICTION

Jurisdiction is sought to be invoked pursuant to

28 U.S.C. §1254(1). Petitioners assert that this Court

should exercise its judicial discretion because the Federal

Court of Appeals of the Eleventh Circuit has allegedly

decided an important question of federal law. Sup.Ct.

Rule 17(1\c). Respondent Shell Oil Company disagrees.

There is here presented neither an “important question

of federal law” nor a previously unsettled issue. Neither

the trial Court nor the Eleventh Circuit abused its

discretion —the same discretion accorded Florida Courts

with respect to forum non conveniens. The decision

below is reported at 757 F.2d 1215 (11th Cir. 1985) and

is set out in Petitioners’ Appendix, as is the unreported

decision of the trial Court.

STATUTE INVOLVED

The Rules of Decision Act, 28 U.S.C. §1652 may

impliedly be involved in this purported Erie case, but

it was neither specifically argued nor construed below.

This case involves common-law principles of venue and

Court management.

ix

NO. 85-454

in the

Supreme Court

of the

United States

OCTOBER TERM, 1985

SAUL MUNOZ SYBAJA and

RAFAELA ARRIETA PORRAS, ET AL

Petitioners.

VS.

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

\

RESPONDENT SHELL OIL COMPANY'S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioners are fifty-eight Costa Rican citizens,

who reside and work in Costa Rica. They claim they

were injured in Costa Rica by exposure to pesticides

manufactured by Respondents Shell Oil Company and/or

Dow Chemical Company. Neither Respondent is a Florida

corporation and neither has its principal place of business

in Florida.’ Nonetheless Petitioners brought suit through

their Texas counse! in Miami, Florida. The action was

removed to the Federal Court for the Southern District

of Florida.

The Florida Federal District Court ultimately

dismissed the action upon the doctrine of forum non

conveniens, giving full consideration to all of the public

and private interest factors listed in Gulf Oil Corp. v.

Gilbert, 330 U.S. 501 (1947). The trial Court stated that

“applying these considerations to the case at bar, the

Court finds that the considerations overwhelming{ly]

weigh in favor of dismissal. The private interests are

hampered in that the alleged injuries occurred in Costa

Rica. All of the Plaintiffs are Costa Rican. Most of the

evidence and witnesses are in Costa Rica and none are

in Florida, and compulsory process would not be available

to compe! production of this evidence or attendance of

these witnesses. The cost of obtaining the evidence

would be substantial, if possible. The Defendants would

not be able to implead third parties.”

*While both Respondents were subject to service of process

in Florida, that makes them neither Florida citizens nor is that

fact venue dispositive. Personal jurisdiction and venue are distinctly

different doctrines. Leroy v. Great Western United Corp., 443

U.S. 173, 180 (1973).

As to the public interest factors, the trial Court

noted further that “this case is essentially fifty-eight

different lawsuits with different elements of damages,

negligence, contributory negligence, etc. It could not

help but congest this Court’s docket . . . because of

the logistics of dealing with fifty-eight different plaintiffs

at this distance. It would force the Court to conduct a

complex exercise in comparative law and consider a

foreign law with which this Court is not familiar and

which is in a foreign language. . . . It would require

local jurors to hear and decide a dispute that has no

connection with this community.’ The trial Court’s order

of dismissal was entered on August 25, 1983.

That dismissal was affirmed by the Eleventh Circuit

Court of Appeals by opinion dated April 16, 1985.

ARGUMENT—THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE DENIED

Contrary to the contention of Petitioners, Florida's

Courts have accepted and embraced the doctrine of

forum non conveniens and have, in fact, dismissed cases

thereunder.’ Florida’s Supreme Court has recently

re-enunciated the state’s public policy with respect to

its admittedly narrower but existent forum non

conveniens doctrine —

‘Petitioners have never refuted the further fact, found by the

trial Court, that they have an alternative forum with an adequate

remedy available to them.

‘This is so, notwithstanding the gratuitous and overly broad

statement contained in Alcoa Steamship Co., Inc. v. M/V Nordic

Regent, 654 F.2d 147, 155 n.10 (2nd Cir. 1978).

this state has a fundamental interest in resolving

controversies involving its citizens.

Houston v. Caldwell, 359 So.2d 858, 861 (Fla. 1978),

rev'g 347 So.2d 1041 (Fla.App. 1977). Conversely, the

State need not take an interest in resolving controversies

involving non-citizens of Florida and arising in other

jurisdictions. In those instances, the Florida judge is

vested with the very same federal Court Gilbert/Piper

discretion to dismiss cases improperly instituted in a

Florida forum. Florida’s Supreme Court, in Houston,

supra, adopted this forum non conveniens rule, first

set out in Adams v. Seaboard Coastline Railroad Co.,

224 So.2d 797 (Fla.App. 1969), as follows:

[T]he recognized law of this state [is] that if a

transitory action is filed in a Court of Florida

between nonresident parties seeking to litigate

a cause of action accruing in a foreign jurisdiction,

the trial Court is accorded a sound discretion

in determining whether it should retain

jurisdiction of the action or dismiss it without

prejudice to the right of the plaintiff to

reinstitute the action in a more appropriate

and convenient forum. In the exercise of such

discretion, the trial Court may consider whether

the filing of the action constitutes forum shopping

on the part of the plaintiff; whether it constitutes

undue harassment of defendant .. . ; and,

whether the convenience of the parties and

witnesses, in the interest of justice, requires

the action be litigated in a different forum. In

the ultimate, however, it is seen that the

application of the doctrine of forum non

conveniens is restricted to the limited category

of cases in which both parties to the action are

nonresidents and the cause of action sued upon

arose in a jurisdiction outside of Florida. It is

only after these two factors emerge and coalesce

that the trial Court is authorized to proceed to

a determination of whether the criteria necessary

to bring into play the doctrine of forum non

conveniens have been met.

Accord, Seaboard Ceastline Railroad Co. v. Swain, 362

So.2d 17 (Fla. 1978).

Florida Courts have historically recognized not

only the compelling need to protect its “citizens,” be

they plaintiffs or defendants, through the Florida Court

system, but equally to decline in its discretion access

to its Courts by noncitizens in cases involving non-

Florida issues arising outside of Florida. The Florida

Supreme Court, in Hagen v. Viney, 124 Fla. 747, 169

So.391 (Fla. 1936) first stated this as follows:

It is settled law that Courts of one state are

not required to assume jurisdiction of causes

between nonresidents arising in other

jurisdictions. . . . After all is said, the question

of jurisdiction in transitory actions between

nonresidents is one of discretion on the part of

the Court assuming it... .

While it is true that “a long line of Florida cases

. . restrict the application of doctrine of forum non

conveniens to cases in which neither party to the action

is a resident of Florida and in which the causes of

action arose outside of Florida,” Sempe v. Coordinated

Caribbean Transport, Inc., 363 So.2d 194, 197 (Fla.App.

1978), these Petitioners’ case falls squarely within Florida's

rule allowing dismissal. Petitioners’ action is one between

non-citizens of Florida arising outside of Florida, in

fact outside of the United States. See also, Killingsworth

v. Montgomery Ward & Co., 327 So.2d 50 (Fla.App.

1976).

The doctrine of forum non conveniens is therefore

not unknown in Florida; it is a well entrenched part of

Florida's venue rules. The following cases are clear

examples of its application by Florida Courts: Southern

Railway Co. v. McCubbins, 196 So.2d 512 (Fla.App.

1967); Faulkner v. S.A. Empresa de Viaco Airea Rio

Grand, 222 So.2d 805 (Fla.App. 1969); Meily u Agricultural

Investment Corp., S.A., 276 So.2d 161, (Fla. 1973); Autry

v. Seaboard Coastline R.R. Co., 32 Fla.Supp. 53 (Cir.Ct.

1968); Hubbard v. Southern Railway Co., 14 Fla.Supp.

10 (Cir.Ct. 1959); Baker v. Atlantic Coastline Railroad

Co., 21 Fla.Supp. 21 (Cir.Ct. 1963). See also, Underwood,

v. University of Kentucky, 390 So.2d 433 (Fla.App.

1980) (affirming lack of personal jurisdiction dismissal,

but stating it would so affirm on forum non conveniens

grounds as weil), and Southern Railway Co. v. Bowling,

129 So.2d 433 (Fla.App. 1961) (recognizing applicability

of the private and public factors set out in Gulf Oil

Corp. v. Gilbert, 330 U.S. 501 (1947) but holding that it

was not an “abuse of discretion” for the trial Court to

refuse to exercise its authority to dismiss an action

under the doctrine of forum non conveniens). And see,

Ganem v. de Issa, 225 So.2d 564 (Fla.App. 1969).

In Southern Railway Co. v. McCubbins, supra, neither

of the parties were citizens of the State of Florida and

the claim arose in Tennessee. The plaintiff, resided in

Tennessee; the defendant Railway Company “was a

Virginia corporation [and] its principal place of business

was not in Florida.” Even though the court recognized

that the Railway Company had an office and agent in

Dade County, Florida and operated its trains in Florida

north of Jacksonville, the Court nonetheless dismissed

the action upon forum non conveniens grounds, citing

and relying upon this Court’s decision, Gulf Oil Corp. v.

Gilbert, supra, and holding, in sum, that “it would be

difficult to visualize the making of a stronger case for a

dismissal under the doctrine.”

The same fact pattern is present in Faulkner, supra.

There the tort action arose out of an accident in Peru.

The plaintiffs were not citizens of Florida nor of the

United States. The defendants were Varig Airways

and the Boeing Company. The case was dismissed upon

the doctrine of forum non conveniens; the dismissal

was affirmed upon the authority of Southern Railway

Co. v. McCubbins, si vra, and upon the principles set

out by this Court in Gulf Oil Corp. v. Gilbert, supra.

The same result occurred again, in Meily, supra,

where the plaintiff was a citizen of London, England,

and the defendants were a Panamanian corporation

and Luxembourg corporation. As in Faulkner and in

McCubbins, the cause of action arose outside the State

of Florida.

The Gulf Oil Corp. v. Gilbert, supra, factors, dictating

forum non conveniens dismissal, appear again in the

published trial Court decisions, Autry, Baker, and

Hubbard, supra, all forum non conveniens dismissals.

In Baker, for example, the plaintiff was a citizen and

resident of North Carolina. The defendant railroad was

a Virginia corporation, which did business in the State

of Florida. Adopting, again, this Court’s standards set

out in Gulf Oil Corp. v. Gilbert, supra, the Florida trial

Court declined to exercise its jurisdiction upon the

doctrine of forum non conveniens.®

The three Florida cases cited by Petitioners in

support of their bald statement that “the law of the

State of Florida precludes a forum non conveniens

dismissal of this action” are factually inapposite (see

Petitioners’ Brief, p. 6). In all three, Houston v. Caldwell,

359 So.2d 858 (Fla. 1978); Seaboard Coastline R. v.

Swain, 362 So.2d 17 (Fla. 1978); and Warte v. Summit

Leasing & Capital International Corp., 441 So.2d 185

(Fla.App. 1983), at least one of the parties was in fact a

Florida resident and citizen. This is likewise true of

Shaw v. Seaboard Coast Line Ry, 229 So.2d 275 (Fla.App.

1969). There, dismissal was denied because the defendant

railroad was a Virginia corporation, but because its

principal place of business was in Florida.

That is not so in this instance, however. Here no

party is a Florida citizen; no party has its principal

place of business in Florida.

There may well be 2 case, perhaps arising out of

Florida, in which the Erie issue upon which this Court

‘See also, Underwood v. University of Kentucky, supra, a

libel action. In Underwood, the appellate Court affirmed dismissal

for lack of personal jurisdiction, but commented that

[even] if we were to rule that jurisdiction may lie in the

courts of this state, we would be nonetheless obliged

under the circumstances to dismiss on the basis of

forum non conveniens.

has reserved could be met and resolved once and for

ali, assuming this Court’s attentions should be accorded

to a narrow Florida-peculiar question. This, however,

is not the case.

It is plainly dispositive of this Petition that Florida’s

forum non conveniens doctrine, like the federal doctrine,

authorizes discretionary dismissal upon the balancing

of the relative convenience of the litigants and the

forum upon facts such as are here present. The Eleventh

Circuit neither erred in upholding application of the

federal principals of forum non conveniens (since the

state principals would be the same in this instance) nor

did it permit the so-called “accident of diversity of

citizenship” to constitute the deciding factor in this

action. The Eleventh Circuit, and the trial Court, did

not “defy” Erie. There is and was no “chasm” existing

between the Federal and Florida doctrine in this particular

instance and no amount of rhetoric by Petitioners can

change this.

Furthermore, even assuming arguendo that the

Florida rule would in this case work a different result,

Erie does not dictate that the Florida rule be considered

because forum non conveniens is a matter of procedure,

not of substance. This Court has already labeled it as

such in Missouri ex rel. Southern Ry Co. v. Mayfield,

340 U.S. 1, 3 (1950):

According to its own notions of procedural

policy, a State may reject, as it may accept,

the doctrine [of forum non conveniens| for all

causes of action begun in its courts.

To bolster their position, however, Petitioners argue

that the law respecting personal jurisdiction and service

of process is the law which applies to venue matters.

Respondent does not dispute that a “Federal District

Court sitting in diversity has personal jurisdiction over

the defendant to the extent permitted by state law”

and does not dispute that it was subject to service of

process in Florida. Respondent does however dispute

the Petitioners’ effort to cloud two different and distinct

doctrines by persistent reference to state service of

process cases and rules. As explained in Leroy v. Great

Western United Corp., 443 U.S. 173, 180 (1979), this is

inaccurate. “The question of personal jurisdiction, which

goes to the Court’s power to exercise control over the

parties, is typically decided in advance of venue, which

is primarily a matter of choosing a convenient forum.”

See also, PI, Inc. v. Valcoun Imprinted Papers, Inc., 465

F.Supp. 1218 (S.D.N.Y. 1979) and Moore, 1 Moore’s Federal

Practice, 90.140 [1.-2):

[Federal] jurisdiction of the subject matter

relates to the power of the court to hear and

determine the matter in litigation. In personam,

in rem, and quasi in rem jurisdiction relate to

the court’s power over the person or property

of the defendant. Venue. on the other hand,

relates to the locality of a lawsuit, the forum

where judicial power may be set in motion,

but it does not limit the jurisdiction of the

court.... Another relationship is that a court

may resist imposition upon its jurisdiction even

when jurisdiction is authorized by statute and

the selected forum is proper under venue

statutes. Such resistance is recognized by the

doctrine of forum non conveniens, a facet of

10

venue, and §1404(a) of the Code, which provides

generally for transfer rather than dismissal.

This leaves Petitioners’ final argument: application

of the “outcome determinative” test.

In this regard, Petitioners concentrate on the Erie

statements made by this Court in Guaranty Trust

Company v. York, 326 U.S. 99 (1945) and Hanna uv.

Plumer, 380 U.S. 460 (1965) ignoring one other Erie-

relevant decision, Byrd v. Blue Ridge Rural Electric

Cooperative, 365 U.S. 525 (1958). \

Byrd recognizes the broad Erie policy of adopting

state rules in diversity cases when those rules “bear

substantially on the question of whether the litigation

would come out one way in the federal court and another

way in the state court.” But, Byrd recognizes also that

“outcome” is not the only consideration.

[There] are affirmative countervailing

considerations at work here. The federal system

is an independent system for administering

justice to litigants who properly invoke its

jurisdiction. :.. The policy of uniform

enforcement of state-created rights and

obligations, see, e.g., Guaranty Trust Company

of New York v. York, supra, cannot in every

case exact compliance with a state rule—not

bound up with rights and obligations — which

disrupts the federal system of allocating

functions between judge and jury [citation

omitted]. Thus the inquiry here is whether the

federal policy favoring jury decisions of disputed

fact questions should yield to the state rule in

the interest of furthering the objective that

ll

the litigation should not come out one way in

the federal court and another way in the state

court.

In Byrd, a diversity case, this Court rejected

application of South Carolina’s rule that the defense of

immunity from suit under the workers’ compensation

laws was one to be decided by a judge rather than a

jury. This Court reiterated that “state laws cannot

alter the essential character or function of a federai

court” because that function is not in any sense a local

matter and “state statutes which would interfere with

appropriate performance of that function are not binding

upon the federal court under either the Conformity

Act or the ‘Rules of Decision’ Act.” See also Simler v.

Conner, 372 U.S. 221, 222 (1963) (“the right to a jury

trial in federal courts is to be determined as a matter

of federal law in diversity as well as other actions”);

and Donovan v. Penn Shipping Company, Inc., 429 U.S.

648, 649-650 (1977) (in the federal system “reviewing

the size of jury verdicts is, however, a matter of federal

law” and a plaintiff cannot protest a remittitur he

accepted in order to open it to challenge on appeal).

"The facts of this case make it inappropriate for consideration

of the reserved Erie forum non conveniens question and this

case — on its facts — presents no important question of federal law.

It is nonetheless believed that a federal court in a diversity case is

governed by federal law on this issue and that this Court, given

the appropriate case, will so hold. See Murphee v. Mississippi

Publishing Corporation, 149 F.2d 138, 140 (5th Cir. 1945); Brown 2.

Pyle, 310 F.2d 95, 97 (5th Cir. 1962); Miller v. Davis, 507 F.2d 308

(6th Cir. 19°43; Cochrane v. Iowa Beef Processors, 596 F.2d 254.

260 (8th Cir. 1979); In Re Richardson-Merrill, Inc., 545 F.Supp.

1130, 1132 (S.D. Ohio 1982), affd 727 F.2d 608 (6th Cir. 1984):

Hodson v. A.H. Robins Company, Inc., 528 F.Supp. 809, 817 (E.D.

Va. 1981).

12

The “outcome determinative” argument fails too,

therefore, not only because “outcome determination”

is not the last word when it comes to disruption of the

federal system but also because this case would have

been dismissed by a Florida court not only under its

forum non conveniens principles but for yet another

reason.

Assuming arguendo that forum non conveniens is

a matter of substance, and not a matter of procedural

“housekeeping,”* then being substantive, Florida's choice

of law rules would come into play. A Florida court

would be required to apply the substantive law of the

jurisdiction with the most signficant contacts to this

claim, which would be the law of Costa Rica. See Klaxton

v. Stentor Electric Company, Inc., 313 U.S. 487 (1941);

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

Bishop v. Florida Special Paint Company, 389 So.2d 999

(Fla. 1980). In Bishop, supra, the Florida Supreme Court

adopted the “signficant relationships test” as set forth

in the Restatement (Second) of Conflict of Laws §§145-146

(1971) as applicable te tort actions arising in other

jurisdictions. Under this rule, “the state where the

injury occurred would, under most circumstances, be

the decisive consideration indetermining the applicable

choice of law.” Bishop, supra, at 1001

Petitioners here argue that the Florida forum non

conveniens rule is substantive for Erie purposes, but

are forced to argue, further, that the same forum non

conveniens rule is procedural for choice of law purposes,

because if it is not a procedural rule of Florida then

Costa Rican venue and forum non conveniens principles

‘Hanna v. Plumer, 380 U.S. 460, 473 (1965).

13

will apply in the Florida court. And Costa Rican law

would dictate dismissal, because the jurisdiction of

Costa Rican Courts is strictly territorial; their Courts

entertain no tort actions arising extra-territorially. Civil

Code of Costa Rica, Articles 6 and 1045-1048; Labor

Code of Costa Rica, Articles 219-212; and Code of Civil

Procedures of Costa Rica, Articles 1-7. In sum, therefore,

accepting Petitioners’ view in toto, the real Erie issue

if any exists is not would the outcome have been different

with the application of Florida venue rules but rather

would it have been different with the application of

Costa Rican venue rules, adopted in Florida under its

conflict of laws/choice of law rules. Petitioners want

but cannot have it both ways. The alleged “accident of

diversity” interferes in no fashion with this proceeding.

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CONCLUSION

“A review on writ of certiorari is not a matter of

right but of judicial discretion, and will be granted only

when there are special and important reason therefor.”

Sup.Ct.R.17. Even given the Erie question as yet reserved

by this Court\in Gulf Oil Corp. v. Gilbert, supra, this is

not the case for resolution of that issue. Applying state

or federal (or Costa Rican) principles yields the same

result. If there was any forum shopping, it was on the

part of these Costa Rican plaintiffs and their Texas

lawyers who sought out Florida for this plainly non-

Florida lawsuit.

The decision of the Eleventh Circuit was fully

consistent with established legal principles. Review is

unwarranted.

Respectfully submitted,

BERT BALLAFANT

SHELL OIL CO.

Legal Department

Litigation Section

P. O. Box 2463, Room 4794

One Shell Plaza

Houston, Texas

(713) 241-7023

and

SHERRYLL MARTENS DUNAJ

FOWLER, WHITE, BURNETT,

HURLEY, BANICK &

STRICKROOT, P.A.

City National Bank Building

25 West Flagler Street

Miami, Florida 33130

(305) 358-6550

By:

16

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the

foregoing Brief in Opposition to Petition for Writ of

Certiorari have been mailed by deposit with the United

States post office, first-class postage prepaid on this

16th day of October, 1985, to the following persons:

Jane N. Saginaw, Esq. and

Russell W. Budd, Esq.

Baron & Budd, P.C.

8333 Douglas Avenue

10th Floor

Dallas, TX 75225

Counsel for Petitioners

and

Michael B. Buckley, Esq.

Corlett, Killian, Hardeman,

McIntosh & Levi, P.A.

116 W. Flagler Street

Miami, FL 33130

Counsel for Respondent

Dow Chemical Company

By:

Sherryll Martens Dunaj

17