# Opposition Brief — Sibaja v. Dow Chemical Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 948

## Text

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,

WME WE 55 v0 80k a

E's wank ad oe dN G Wg oe KK

Vill

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.

14

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0748%3A3. Public record. Not legal advice.