Petition for Writ of Certiorari — Nisiotakis v. Columbus Aircraft Division of Rockwell International Corp.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

VASILIKI NISIOTAKIS, CONSTANDINOS NISIOTAKIS, and

STELLA NISIOTAKIS, individually; CHRISTOS NISIOTAKIS,

a minor, and KOosTAS NISIOTAKIS, a minor, by and

through their Guardian ad Litem, EUGENE J. MAR-

SHALL; as heirs of THEODOROS NISIOTAKIS, deceased,

. Petitioners,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, a corporation

and

STENCEL AERO ENGINEERING CORPORATION, a subsidiary

of TALLEY INDUSTRIES, INC., a corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES H. Toms

(Counsel of Record)

TOMS & BAZZLE, P. A.

P.O. Box 988

201 North Main Street

Hendersonville, NC 287938

(704) 693-0421

MELVIN M. BELLI, SR.

PAUL M. MONZIONE

LAW OFFICES OF MELVIN M. BELLI

722 Montgomery Street

San Francisco, CA 94111

(415) 981-1849

Attorneys for Appellant

WiILson - Eras Printine Co.. inc. - 789-0096 - WasHINGTON. D.C. 20001

QUESTIONS PRESENTED

The questions presented are whether the Fourth Circuit

Court of Appeals erred in failing to defer to the presiding

District Court Judge for the Southern District of Ohio[,]

Eastern Division in his interpretation and construction of

Ohio law; and whether this failure to defer resulted in

a denial of due process of law.

(i) (

ee anneal

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................... 8

TABLE OF AUTHORIT IE

4 ˙ TT

JURISDICTION

STATUTES INVOLVED ................

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT .....................

I. The Court of Appeals should have upheld the de-

cision of the Ohio United States District Judge.

II. Plaintiffs are denied due process of law, by an

ex post facto amendment to the Ohio statute,

taking away their rights, if the interpretation

of Ohio law by the Court of Appeals is sustained..

, ..

F ESSENSE SES AR Sa

APPENDIX E (ß „„ „„

APPENDIX F.

APPENDIX G.

J 1. SSH indian aca

(i)

TABLE OF AUTHORITIES

CASES Page

Anderson v. City of Bessemer City, —— U.S. ——.

105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) 9,14

Ball v. Victor K.\Browning & Co., Inc., et al.;

Union Carbide Corp., 21 Ohio App. 3d 175, 487

N.E. 2d 326 (1984) 12

Bishop v. Wood, 426 U.S. 314, 49 L.Ed.2d 684, 96

00 Ee ome er ar oy Ree 10, 14

French v. Dwiggins, 9 Ohio St. 8d 32, 458 N.E. 2d

827 (1984) ........ — than

Propper v. Clark, 337 U.S. 472, 93 L.Ed. 1480, 69

%% —V—V—V——Vdd ae eee 10

Taylor v. Black & Decker Mfg. Co., a.k.a. Black &

Decker (U.S.), Inc., 21 Ohio App. 3d 186, 486

N. E. 2d 1173 (1984) por ae 12

United States v. Durham Lumber Co., 363 U.S. 522,

4 L.Ed.2d 1371, 80 S.Ct. 1282 (1960) 10

OTHER AUTHORITIES

28 U.S.C. § 1254 (1) 8 . 2

28 U.S.C. § 1406 (a) 8

Ohio Revised Code Annotated Section 2125. . 2, 4, 7

Ohio Revised Code Annotated Section 2125.02 3, 5, 11

Rule 56, Federal Rules of Civil Procedure 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No.

VASILIKI NISIOTAKIS, CONSTANDINOS NISIOTAKIS, and

STELLA NISIOTAKIS, individually; CHRISTOS NISIOTAKIS,

a minor, and Kostas NISIOTAKIS, a minor, by and

through their Guardian ad Litem, EUGENE J. Mar-

SHALL; as heirs of THEODOROS NISIOTAKIS, deceased,

Petitioners,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, a corporation

and

STENCEL AERO ENGINEERING CORPORATION, a subsidiary

of TALLEY INDUSTRIES, INC., a corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is an unpublished opinion entered on

February 27, 1986 (App. A, infra, pp. la-10a).

Petition suggesting hearing by the Court of Appeals

in bane was filed on March 13, 1986 (App. B, infra, pp.

11a-14a), and this petition was denied by the Court of

Appeals in unpublished order entered on April 1, 1986

(App. C, infra, pp. 15a-16a).

Further opinions below, necessary to consider the is-

sues in this petition, are the unpublished opinion and

order of Woodrow W. Jones, United States District

Judge, W.D., N.C., filed December 17, 1984 (App. D,

infra, pp. 17a-24a); and four orders and opinions of

Joseph P. Kinneary, United States District Judge, S. D.,

Ohio: (a) Order of October 27, 1982, applying the wrong-

ful death statute of limitations of Greece in Ohio, under

Ohio choice of law rules, and thus denying summary

judgment to Defendant Rockwell (App. E, infra, pp.

25a-32a) ; (b) Opinion and order of April 6, 1988, deny-

ing Defendant Rockwell’s motion to reconsider the pre-

vious denial of summary judgment (App. F, infra, pp.

33a-35a); (e) Opinion and order of June 27, 1984, in

response to motion of Defendant Stencel to dismiss or in

the alternative, for summary judgment (App. G, infra,

pp. 36a-48a); (d) Order of July 31, 1984, transferring

the lawsuit from the United States District Court for

the Southern District of Chio, to the United States Dis-

trict Court for the Western District of North Carolina

(App. H, infra, p. 44a).

JURISDICTION

Denial of petitioners’ suggestion for hearing in banc to

the United States Court of Appeals for the Fourth Cir-

cuit was entered on April 1, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254 (1).

STATUTES INVOLVED

Sec. 2125.01 of the Ohio Revised Code states as follows:

When the death of a person is caused by wrongful

act, neglect, or default which would have entitled the

party injured to maintain an action and recover dam-

had not ensued, the corporation which

or the person who would have been liable if death had

to an action for damages, not-

thstanding death of the person injured and

although the death was caused under circumstances

which make it murder in the first or second degree,

or manslaughter. When the action is against such

administrator or executor the damages recovered

shall be a valid claim against the estate of such de-

When death is caused by a wrongful act, neglect,

or default in another state, territory, or foreign

country, for which a right to maintain an action and

recover damages is given by a statute of such other

state, territory, or foreign country, such right of

action may be enforced in this state. Every such ;

action shall be commenced within the time prescribed

for the commencement of such actions by the statute

of such other state, territory, or foreign country.

The same remedy shall apply to any such cause of

action now existing and to any such action commenced

before January 1, 1932, or attempted to be com-

menced in proper time and now appearing on the files

of any court within this state, and no prior law of

this state shall prevent the maintenance thereof.

Sec. 2125.02 of the Ohio Revised Code states as follows: |

An action for wrongful death must be brought in

the name of the personal representative of the de-

ceased person, but shall be for the exclusive benefit

of the yo eine. Se eg the children, and other next

of kin of the t. The jury may give such dam-

Wers

ages as it thinks proportioned to the pecuniary in-

jury resulting from such death to the persons, re-

spectively, for whose benefit the action was brought,

and the reasonable funeral expenses incurred as a

result of the wrongful death. In its verdict the jury

shall set forth separately the amount of damages, if

any, awarded for reasonable funeral expenses. Ex-

cept as otherwise provided by law, very such action

must be commenced within two years after the death

of such deceased person. Such personal representa-

tive, if he was appointed in this state, with the con-

sent of the court making such appointment may, at

any time before or after the commencement of the

suit, settle with the defendant the amount to be paid.

Section 2125.01 of the Ohio Revised Code was amended

on February 5, 1982, and reads as follows:

When the death of a person is caused by wrongful

act, neglect, or default which would have entitled

the party injured to maintain an action and recover

damages if death had not ensued, the person who

would have been liable if death had not ensued, or

the administrator or executor of the estate of such

person, as such administrator or executor, shall be

liable to an action for damages, notwithstanding the

death of the person injured and although the death

was caused under circumstances which make it ag-

gravated murder, murder, or manslaughter. When

the action is against such administrator or executor,

the damages recovered shall be a valid claim against

the estate of such deceased person. No action for the

wrongful death of a person may be maintained

against the owner or lessee of the real property upon

which the death occurred if the cause of the death

was the violent unprovoked act of a party other than

the owner, lessee, or a person under the control of

the owner or lessee, unless the acts or omissions of

the owner, lessee, or person under the control of the

owner or lessee constitute gross negligence.

When death is caused by a wrongful act, neglect,

or default in another state or foreign country, for

which a right to maintain an action and recover

damages is given by a statute of such other state or

foreign country, such right of action may be en-

forced in this state. Every such action shall be com-

menced within the time prescribed for the com-

mencement of such actions by the statute of such

other state or foreign country.

The same remedy shall apply to any such cause of

action now existing and to any such action com-

menced before January 1, 1932, or attempted to be

commenced in proper time and now appearing on

the files of any court within this state, and no prior

law of this state shall prevent the maintenance of

such cause of action.

Section 2125.02 of the Ohio Revised Code was amended

on February 5, 1982, and reads as follows:

(A) (1) An action for wrongful death shall be

brought in the name of the personal representative

of the decedent for the exclusive benefit of the sur-

viving spouse, the children, and the parents of the

decedent, all of whom are rebuttably presumed to

have suffered damages by reason of the wrongful

death, and for the exclusive benefit of the other next

of kin of the decedent.

(2) The jury, or the court if the action is not tried

to a jury, may award damages authorized by divi-

sions (B) and (C) of this section, as it determines

are proportioned to the injury and loss resulting to

these beneficiaries by reasun of the wrongful death,

and may award the reasonable funeral and burial

expenses incurred as a result of the wrongful death.

In its verdict, the jury or court shall set forth sepa-

rately the amount, if any, awarded for the reasonable

funeral and burial expenses incurred as a result of

the wrongful death.

(3) The date of the decedent’s death fixes the

status of all beneficiaries of the action for purposes

of determining the damages suffered by them and the

amount of damages to be awarded. A person who is

conceived prior to the decedent’s death and who is

born alive after his death is a beneficiary of the

action.

In determining the amount of damages to be

awarded, the jury or court may consider all factors

existing at the time of the decedent’s death that are

relevant to a determination of the damages suffered

by reason of the wrongful death.

(B) Compensatory damages may be awarded in

an action for wrongful death and may include dam-

ages for the following:

(1) Loss of support from the reasonably expected

earning capacity of the decedent;

(2) Loss of services of the decedent ;

(3) Loss of the society of the decedent, including

loss of companionship, consortium, care, assistance,

attention, protection, advice, guidance, counsel, in-

struction, training, and education, suffered by the

Surviving SOUR, BUNGE Geen ROAR OF. HOOF

(4) Loss of prospective inheritance, to the dece-

dent’s heirs at law at the time of his death;

(5) The mental anguish incurred by the surviving

spouse, minor children, parents, or next of kin.

state, with the consent of the court making the ap-

pointment, may, at any time before or after the

commencement of an action for wrongful death,

settle with the defendant the amount to be paid.

(D) All actions for wrongful death sball be com-

menced within two years after a decedent's death.

STATEMENT OF THE CASE

Plaintiffs initially filed suit on August 29, 1978, in

the Superior Court of the State of California, alleging

that the deceased Theodoro Nisiotakis, a citizen of

Greece and a pilot in the Greek Armed Forces, was killed

when the ejection seat for the T-2E jet aircraft he was

flying malfunctioned and the aircraft subsequently

crashed on July 8, 1977. On March 10, 1980, all proceed-

ings were stayed pending initiation of further proceed-

ings in a more convenient forum. On November 2, 1981,

Plaintiffs instituted suit in the Common Pleas Court,

Franklin County, Ohio, seeking to recover damages for

the alleged wrongful! death of Theodoros Nisiotakis. Serv-

ice of process was had on the Defendant, the Columbus

Division of Rockwell International Corporation. The case

was removed to the United States District Court for the

Southern District of Ohio, Eastern Division, on December

8, 1981, upon the request of the Defendant Rockwell.

Rockwell filed its answer on February 4, 1982, and

moved for summary judgment pursuant to Rule 56, Fed-

eral Rules of Civil Procedure on May 12, 1982, on the

grounds that the Ohio two-year statute of limitations had

run and was a bar to the Plaintiffs’ claim, even though

the accident and death of Nisiotakis had occurred in

Greece, not in Ohio.

On August 9, 1982, Defendant Stencel Aero Engineer-

ing Corporation was served with process. On September

20, 1982, Defendant Stencel filed its answer.

On October 27, 1982, the Ohio court ruled on Defend-

ant Rockwell’s motion for summary judgment and held

that under the Ohio Revised Code, Section 2125.01, the

court must look to the relevant statute of limitations

applicable to the wrongful death action under Greek law.

The court thereafter found that the Greek statute allowed

five years from the time the victim learned of the damage

and of the person obligated to make reparations, in which

to file suit. In that the death occurred on July 8, 1977,

and suit was filed on November 2, 1981, the court ruled

that the action had been timely filed and denied Rock-

well’s motion for summary judgment (App. E, infra, pp.

25a-82a). Defendant Rockwell’s subsequent motion for

econsideration of the denial of its motion for summary

udgment was denied. (App. F, infra, pp. 38a-35a).

On June 20, 1982, Defendant Stencel moved to dismiss

he action based upon lack of jurisdiction and moved for

ummary judgment, alleging that the action was barred

y the Ohio two-year statute of limitations. The court,

n its order (App. F, infra, pp. 33a-35a), found that the

laintiffs had failed to sustain their burden in showing

hat the Defendant Stencel was transacting business in

he state of Ohio and, therefore, amenable to the personal

urisdiction of that court. The court, however, did not

lismiss the action as to Defendant Stencel; it denied the

Plaintiffs’ motion to transfer the action back to Cali-

‘ornia and indicated it would favorably entertain a mo-

ion to transfer the action pursuant to 28 U.S.C. § 1406

(a) te some other forum where personal jurisdiction may

xist.

On July 81, 1984, Judge Joseph Kinneary transferred

he lawsuit to the United States District Court, Western

District of North Carolina, Asheville Division, “in the

nterests of justice” (App. H, infra, p. 44a).

On Wovember 6, 1984, in North Carolina, Defendant

Rockwell moved for summary judgment, alleging that

the lawsuit was barred by the applicable statute of

imitations of North Carolina.

On November 9, 1984, in North Carolina, Defendant

Stencel moved to dismiss, alleging lack of jurisdiction

over the Defendant or the subject matter, insufficiency of

process and service of process, and failure to state a

claim upon which relief may be granted. Defendant

Stencel also moved for summary judgment, alleging that

the claim was barred by the statute of limitations of

North Carolina.

On December 17, 1984, Woodrow W. Jones, United

States District Judge, granted the Defendants’ motions

for summary judgment and dismissed the action against

Defendant Rockwell and Defendant Stencel, applying

North Carolina law to the case (App. D, infre, pp. 17a-

24a).

On appeal from Judge Jones’ dismissal, the United

States Court of Appeals for the Fourth Circuit, in its

opinion, reevaluated the law of Ohio that had previously

been ruled upon by the United States District Judge sit-

ting in Ohio. The court determined that the two-year

Ohio statute of limitations for wrongful death overrode

the “borrowing” section of the Ohio Code and ruled that

the actions against Defendant Rockwell and Defendant

Stencel were thus barred by the two-year Ohio statute of

limitations (App. A, infra, pp. Ia-10a)

REASONS FOR GRANTING THE WRIT

In this case, the United States Court of Appeals for the

Fourth Circuit, reviewing the case after it arrived in

the Fourth Cireuit under a transfer order from the

federal trial court in Ohio, disposed of the case by in-

terpreting the Ohio conflict of laws rules differently from

the interpretation given by the United States District

Judge sitting in Ohio, regarding the laws of his state.

In its evaluation of Ohio law, the Court of Appeals for

the Fourth Circuit was incorrect, apparently overlook-

ing controlling decisions by the Ohio courts interpreting

the same laws.

Petition should be granted in this case to emphasize

further the desirability of having federal appellate courts

defer to trial courts sitting in the states whose laws are

being interpreted, on questions of interpretation of state

law. Only by such a wise deferral to the expertise of the

trial courts, reviewing these decisions under the “clearly

erroneous” standard set out by this Court in Anderson v.

City of Bessemer City, —— U.S. ——, 105 S.Ct. 1504,

84 L.Ed.2d 518 (1985), can an orderly functioning of the

federal court system be assured and errors of interpreta-

tion of state law affecting federal litigants be minimized.

I. The Court of Appeals should have upheld the decision

of the Ohio United States District Judge.

In the decision by the United States Court of Appeals

for the Fourth Circuit, it is stated that

the Ohio district judge erred by failing to give

proper consideration to a recent, retroactive amend-

fling of all wrongful death galt in Ohio within tre

sui within two

years 185 the decedent’s death. (App. A, infra,

at p. 5a

This Court has held that there is a strong presumption

that a decision by a district court judge, presiding in

the state where the action originally was heard, is the

correct interpretation of the state law. Bishop v. Wood,

426 U.S. 314, 49 L.Ed.2d 684, 96 S.Ct. 2074 (1976). In

that decision, this-Court referred to United States v.

Durham Lumber Co., 363 U.S. 522, 4 L.Ed.2d 1371, 80

S.Ct. 1282 (1960) and Propper v. Clark, 387 US. 472,

93 L.Ed. 1480, 69 S.Ct. 1333 (1949). In footnote 10,

in Bishop, supra, the Court citing Propper, supra, at 486-

487, stated

It is suggested that a United States District Judge

knows the law of the state in which he sits far better

than a federai trial or appellate judge sitting in a differ-

ent state or circuit. Further, judicial economy and a

desire to minimize friction on transfer of cases support

appellate courts’ deference to lower court decisions.

The decision by the Fourth Circuit Court of Appeals

appears to be incorrect as it interprets Ohio law. The

case cited in the opinion of the court as controlling is

French v. Dwiggins, 9 Ohio St. 3d 32, 458 N.E. 2d 827

(1984). Judge Sneeden, in the opinion of the United

States Fourth Circuit Court of Appeals, stated that he

believed in reading the 1982 amendment to the Ohio Code,

as well as French, supra, that the Legislature clearly in-

tended to “place a two-year cap on the amount of time

within which all wrongful death actions may be com-

menced” (App. A, infra, at p. 8a). However, in looking

at the decision of the Ohio Supreme Court in French,

supra, we find that that decision in that case centered

on a controversy as to whether an expansion of the dam-

ages a party could recover in a wrongful death action

would be allowed. Under the 1982 amendment to the

Ohio Code, the amount of damages allowed in a wrongful

death action was greatly expanded. The Ohic Supreme

Court, in looking at the facts in that case, stated that it

interpreted legislative intent to be such that the measure

of damages should be expanded, thereby applying the

statute retroactively to a case that was pending at the

time of the amendment to the Ohio Code, Section 2125.02.

The Ohio Supreme Court did not address the issue of

whether the amended statute would apply to other cases

pending at that time in determining what statute of

limitations should apply in wrongful death actions. The

Ohio Supreme Court stated in French, supra, that the

1982 amendment would allow greater damages than the

pre-existing statutes.

The Court of Appeals, in its evaluation of Ohio law,

apparently missed other relevant case law of Ohio, which

it did not cite. In speaking to the effect of the amend-

ment to the Ohio Code Section 2125.02, the Court of

Appeals of Ohio stated on December 17, 1984, in Taylor

v. Black & Decker Mfg. Co., a.k.a. Black & Decker (U.S.),

Inc., 21 Ohio App. 3d 186, 486 N.E. 2d 1173 (1984),

that “the Court in Dwiggins, supra, held that the amended

version of the statute amply provided for the scope of

recovery for those entitled to receive damages in a wrong-

ful death action. RC 2125.02 as amended, was remedial

in nature due to a change in the existing duties, rights,

obligations and elements in order to impose additional

ones. The legislative amendments did not alter any of

the substantive aspects of the wrongful death action.”

See aiso Ball v. Victor K. Browning & Co., Inc., et al.;

Union Carbide Corp., 21 Ohio App. 3d 175, 487 N.E. 2d

326 (1984).

The Court of Appeals ignored the fact that Section

2125.01 of the Ohio Revised Code, as amended in 1982,

specifically provides for the use of a foreign statute of

limitations in Ohio for actions arising in that foreign

country. This section of the Ohio Revised Code is sub-

stantially the same as the provision prior to 1982 and

was the basis of Judge Kinneary’s decision. If the Ohio

legislature had intended to place a two-year cap on all

wrongful death actions, Section 2125.01 would have been

omitted.

The theoretical basis, history, public policy, and inter-

pretation of the relevant Ohio Statutes were carefully

evaluated by United States District Judge Joseph P.

Kinneary, in his orders and opinions, App. E, F, and G,

infra. It is regrettable that the Fourth Cireuit Court of

Appeals disposed of the case by simply disagreeing with

the interpretation of Ohio’s laws, reached by the federal

judge sitting in that state. Such practice does not pro-

mote judicial economy and uniformity, nor does it do

justice to litigants by having the courts with the most

expertise in matters of state law speak with authority

on those matters.

II. Plaintiffs are denied due process of law, by an ex post

facto amendment to the Ohio statute, taking away their

rights, if the interpretation of Ohio law by the Court

of Appeals is sustained.

At the time of the filing of their lawsuit in Ohio, in

November, 1981, Section 2125.01 of the Ohio Revised Code

clearly provided for the “borrowing” of the five-year

Greek statute of limitations, since the wrongful death

elaini arose under the laws of Greece. The Court of

Appeals is taking the position that the Ohio legislature

subsequently changed the law. As suggested above, it is

argued that the Court of Appeals has misapplied Ohio law

in this regard.

The effect of what the Court of Appeals has done is to

take away from the Plaintiffs a property right, the right

to pursue a Greek cause of action for wrongful death in

Ohio, vested under Ohio law when their lawsuit was

filed.

- Such an unjust result, and the consequent denial of

procedural due process of law predicated in the loss of

a valuable property right, are wholly unnecessary, if the

Court of Appeals would wisely defer to the expertise of

the Ohio court, in interpreting the laws of Ohio, as ar-

gued herein.

CONCLUSION

The Court should review this case to assure uniformity

of interpretation of matters of unique state law applica-

tion among the federal courts by ciearly re-emphasizing

the principle of deference to the expertise of trial courts

sitting in the state whose laws are being interpreted, as

set out by this Court in Anderson v. City of Bessemer

City, —— U.S. ——, 105 S.Ct. 1504, 84 L.Ed.2d 518

(1985) and Bishop v. Wood, 426 U.S. 314, 49 L.Ed.2d

684, 96 S.Ct. 2074 (1976).

Respectfully submitted,

JAMES H. Toms

(Counsel of Record)

Toms & BAZZLE, P. A.

P. O. Box 988

201 North Main Street

Hendersonville, NC 28793

(704) 693-0421

MELVIN M. BELLI, SR.

PAUL M. MONZIONE

LAW OFFICES OF MELVIN M. BELLI

722 Montgomery Street

San Francisco, CA 94111

(415) 981-1849

Attorneys for Appellant

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

85-1006 (L)

VASILIKI NISIOTAKIS; CONSTANDINOS NISIOTAKIS and

STELLA NISIOTAKIS, individually; CHRISTOS NISIOTAKIS,

a minor, and Kosta NISIOTAKIS, a minor by and through

their Guardian ad Litem, EUGENE J. MARSHALL; as

heirs of THEODOROS NISIOTAKIS, deceased,

Appellants,

versus

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL INTER-

NATIONAL CORPORATION, a corp.; STENCEL AERO ENGI-

NEERING CorP., a subsidiary of TALLEY INDUSTRIES,

INC., a corp., Appellees.

85-1040

VASILIKI NISIOTAKIS; CONSTANDINOS NISIOTAKIS and

STELLA NISIOTAKIS, individually; CHRISTOS NISIOTAKIS,

a minor, and Kosta NISIOTAKIS, a minor by and through

their Guardian ad Litem, EUGENE J. MARSHALL; as

heirs of THECDOROS NISIOTAKIS, deceased,

Appellants,

versus

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, a corp.,

and Appellant,

STENCEL AERO ENGINEERING Cokp., a subsidiary of

TALLEY INDUSTRIES, INC., a corp.,

Defendant.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville

Woodrow W. Jones, District Judge

(C/A 84-294)

Argued: July 31, 1985 Decided: February 27, 1986

Before WIDENER, CHAPMAN, and SNEEDEN, Cir-

cuit Judges.

James H. Toms; Ervin W. Bazzle (Toms and Bazzle, P.A.

on brief) for Appellants; Harry Dumont; Hada V. Haul-

see (Theodore M. Munsell; Collis Gundy Lane; Lane,

Alton & Rice on brief) for Appellees.

SNEEDEN, Circuit Judge:

This is a complicated conflict of laws case stemming

Plaintiffs appealed the North Carolina court’s ruling.

A cross appeal was filed by the defendants, alleging the

trial judge in Ohio erred in refusing to find the suit time

barred in that state. For the following reasons, we affirm

the dismissal of the action.

venient form. However, in July of 1980, plaintiffs filed

a suit in Federal District Court for the Central District

of California. This action was never served on Rockwell.

The district court, on its own motion, dismissed the case

for lack of prosecution on March 3, 1981.

On November 2, 1981, the plaintiffs initiated the pres-

the federal court dismiss the claim. On May 12, 1982,

the company moved for summary judgment, claiming that

the action was barred by Ohio’s two-year statute of limi-

tations for wrongful death. This motion was denied in

October of 1982. The trial court determined that, under

Ohio choice of law rules, the five-year Greek statute of

limitations applied. Applying the Greek statute, the trial

judge held the suit was timely.

1 Stencel is a corporation organized under North Carolina laws.

Hurricane Mesa, Utah. All of Stencel’s products are designed and

manufactured in North Carolina. The Utah facility is used solely

for product testing. Stencel therefore claimed th. it did not have

sufficient minimum contacts with Ohio such that maintenance of

;

8 5

2 Section 1406 states in pertinent part that It Ihe district

of a district in which is filed a case laying venue in the

division or district shall dismiss, or if it be in the interest

could have been brought.” 28 U.S.C. § 1408 (a).

Section 1404 provides in pertinent part that [lor the con-

venience of parties and witnesses, in the interest of justice, a dis-

trict court may transfer any civil action to any other district or

division where it might have bee a brought.” 28 U.S.C. 1404(a).

* Stencel also filed a motien for judgment on the pleadings, a

motion to dismiss for lack of jurisdiction over the defendant and

ral

Sb f th

en i (h

i 121 215 3] 4 * 14

SEE . ia

mitt 11345 f JURY a

ie Hite Hi

45 — 15 * Ha

ea goers 137 S38

1 11 1111 15

1155 fi i e ei

tlt

ii”

Defendant Rockwell insists that Ohio Revised Code

Section 2125.02 is the controlling statute of limita-

. ˙ thet alaintifs cause

1115

the subject matter, a motion to dismiss for insufficiency of process

and service of process as well as 1 motion to dismiss for failure

to state a claim for which relief could be granted. Joint Appendix

at pp. 118-120.

5 See Appellant’s Brief at 7; Appellee’s Brief at 25.

fore, Section 2125.02 is not

Section 2125.02 states in relevant part:

Except as otherwise provided by law, every such

Mil

However, Section 2125.02 does not

instant case because the law clearly

wise.

;

FLEE

Rae

state, territory, or foreign country. Ohio Re-

vised Code § 2125.01 (emphasis added).

Thus, Section 2125.01 requires that the Court look

to the relevant statute of limitations applicable to

wrongful death actions under Greek law.

Joint Appendix at 58-59 (emphasis supplied by court).

The court found that, under Greek law, plaintiffs had

five years in which to file a wrongful death suit.“

The district court’s analysis is flawed in one important

respect, however, the court relies on a statutory provi

sion, section 2125.01, that was altered by a

1982 amendment. See Ohio Rev. Code Ann. § 2125.02

(Page 1985). The Ohio Supreme Court has ruled the

Joint Appendix at 60.

amended version of the statute is to be applied retro-

„„ See French v.

Dwiggins, 9 Ohio St. 3d 32, 458 N. E. 2d 827 (1984).

A comparison of the old and new versions of section

2125.02 demonstrates the Ohio legislature’s efforts to

clarify the controlling nature of that provision.

Before it was amended, section 2125.02 stated in

pertinent part that “[e]xcept as otherwise provided by

law, every such action [for wrongful death] must be

commenced within two years after the death of such

deceased person.” See Ohio Rev. Code Ann. § 2125.02

(Anderson 1981). In his October 27, 1982 order, the

after a decedent’s death.” Ohio Rev. Code Ann. § 2125.02

(d) (Page 1985) (emphasis added).

7 The legislative amendment to section 2125.02 became effective

February 5, 1982. This action was filed in state court in Ohio on

November 2, 1981. Although at first blush it may appear that the

amendment could not affect a suit filed before its effective date,

the Ohio Supreme Court has clearly stated that the amended section

2125.02 “applies to all wrongful death actions tried in any forum

on or after that [February 5, 1982] date.“ French, 458 N.E.2d

at 831 (emphasis added). This case was actually tried months later

than February of 1982. Defendant Stencel was not served with

process until August 9, 1982. Furthermore, it was not until October

of 1982 that the Ohio district court rejected Rockwell’s assertion

that section 2125.02 made the plaintiffs’ suit untimely and refused

to grant the defendant’s motion for summary judgment. See also

Jones v. VIP Development Co., 15 Ohio St. 3d 90, 472 N.E.2d 1046

(1984) (holding that in an action filed before, but tried after, the

1982 effective date of amended section 2125.02, the trial court erred

in denying the plaintiff an opportunity to prove damages under the

amended version of the statute.)

Joint Appendix at 59.

We believe the 1982 amendment clearly indicates the

Ohio legislature’s intent to place a two-year cap on the

amount of time within which all wrongful death actions

may be commenced. Plaintiffs have argued that this in-

terpretation of the 1982 amendment would, in effect,

render void the statutory section that permits the bor-

rowing of a foreign country’s statute of limitations.

Section 2125.01 states, however, that when a foreign

country’s right of action is enforced in Ohio, “[e]very

such action shall be commenced within the time pre-

scribed by the commencement of such action by the

statute of such other state or foreign country.” (em-

phasis added). We believe a common sense reading of

the “within the time prescribed” language of Section

2125.01 merely prevents a plaintiff from prosecuting a

suit in Ohio if his right to do so has lapsed in the

foreign country. Thus, the foreign statute of limitations

could only serve to shorten the period of time in which a

plaintiff would be required to file suit in Ohio. Giving

effect to both the Ohio and the Greek statutes of limita-

prescribed by Greek law, but in no event may it be

pursued in Ohio more than two years after the decedent’s

death.“

To support tLeir argument that section 2125.01 dictates the

adoption of a five-year statute of limitations in this case, appellants

cite Fox v. Motor Freight, 25 Ohio St. 2d 198, 267 N.E.2d 405

(1971). In Foz, the Ohio Supreme Court uses language which

suggests that a foreign state or country’s statute of limitations

would be incorporated into section 2125.02. Foz, 25 Ohio St. 2d at

197. However, Fox was decided eleven years before the Ohio

General Assembly amended section 2125.02 to declare that all

wrongful death actions must be brought within two years in that

state. Furthermore, the language in Fox upon which appellants

rely states only that the Ohio legislature intended to incorporate

the foreign state or country’s statute of limitations into section

2125.01. The incorporation would not exclude Ohio’s statute of

limitations. Rather, as we have explained, both statutory pro-

visions must be complied with.

plain language, and providing no exceptions, the

legislature of Ohio mandated in section 2125.02 that all

wrongful death actions must be filed e bene.

of the decedent’s 33 state. The plaintiffs filed

this elaim more e e ears after Theodoros Nisio-

takis’ death. I “a age time barred under the Ohio

bias ater ge e

III.

For the foregoing reasons, we affirm the dismissal of

the plaintiffs’ claims.

Affirmed.

10a

WIDENER, Circuit Judge, concurring:

I concur in the result reached by the panel.

I also concur in the opinion of the panel as to the

defendant Rockweli.

As to the defendant Stencel I believe that North Caro-

lina’s choice of law rules apply and would affirm the

district court’s judgment for the reasons stated in its

opinion.

lla

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Record Nos. 84-1006 (L)

85-1040

VASILIKI NISIOTAKIS; CONSTANDINOS NISIOTAKIS and

STELLA NISIOTAKS, individually; CHRISTOS NISIOTAKIS,

a minor, and Kosta NISIOTAKIS, a minor by and through

their Guardian ad Litem, EUGENE J. MARSHALL; as

heirs of THEODOROS NISIOTAKIS, deceased,

a Appellants,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL INTER-

NATIONAL CORPORATION, a corp., and STENCEL AERO

ENGINEERING CorRP., a subsidiary of TALLEY INDUS-

TRIES, INC., a corp., Appellees,

[Filed Mar. 14, 1986]

PETITION SUGGESTING HEARING BY THE

COURT OF APPEALS IN BANC UNDER FRAP 35

JAMES F. Toms

ERVIN W. BAZZLE

TOMS AND BAZZLE, P.A.

Post Office Box 988

Hendersonville, NC 28739

(704) 693-0421

PAUL M. MONZIONE

Law Offices of Melvin Belli

722 Montgomery Street

San Francisco, CA 94111

(415) 981-1849

12a

Now come the Plaintiff / Appellants, who respectfully

petition that the United States Court of Appeals for

the Fourth Circuit rehear this case in banc, as provided

in Rule 35, Federal Rules of Appellate Procedure. We

respectfully suggest that the present proceeding involves

a question of exceptional importance, that is, whether a

cause of action for wrongful death arising under the

laws of Greece may be denied enforcement in the United

States against a United States defendant, by construing

Ohio law retrospectively to prevent the prosecution of the

claim. The present suit was initiated in the courts of

Ohio, and removed to the Federal District Court in Ohio,

wherein the Defendant Rockwell sought unsuccessfully to

have the Federal Court dismiss the claim, asserting that

the action was barred by Ohio’s two year statute of

limitations for wrongful death. Rockwell sought this

dismissal even though the five year Greek statute of

limitations had not run. The trial court determined that

under Ohio choice of law rules, the five year Greek statute

of limitations applied and thus held that the suit was

timely filed in Ohio. The law suit then was transferred

to the Western District of North Carolina, due to lack

of in personam jurisdiction over Stencel Aero Engineer-

ing Corporation, the other defendant, a sub-assembler of

the aircraft in which Theodoris Nisiotakis, a Greek Air

Force Officer, was killed in Greece. In North Carolina,

the United States District Court applied North Carolina

law to the case and dismissed the iaw suits against Rock-

well and Stencel, and an appeal then followed to this

Court.

The panel of this Court which issued its opinion on

February 27, 1986, in this law suit, re-evaluated the law

of Ohio which had previously been considered by the

United States District Judge sitting in Ohio when he

denied Rockwell’s Motion for Summary Judgment, and

the appellate court determined that the two year Ohio

statute of limitations for wrongful death overrides the

the books as the law of Ohio.

The effect of this Court’s opinion is to construe Ohio

law as establishing an absolute cap of two years on the

filing of any law suit in Ohio for wrongful death, no

matter where the cause of action may have arisen, even

though the Legislature of Ohio has passed and has in

continued effect the “borrowing” statute which provides

expressly as follows:

When death is caused by a wrongful act, neglect, or

default in another state, territory, or foreign country,

for which a right to maintain an action and recover

damages is given by a statute of such other state,

territory, or foreign country, such right of action

may be enforced in this state. Every such action

shall be commenced within the time prescribed for

the commencement of such action by the statute of

such other state, territory, cr foreign country. Ohio

Revised Code § 2125.01.

To give effect to the panel’s interpretation of Ohio law,

is to in effect say that the Ohio Legislature intended

to repeal the above quoted section of the Ohio law, even

though the Ohio Legislature clearly did not do so.

A further troubling issue presented is whether an

enforceable cause of action for wrongful death, properly

filed and pending under Ohio law, may be destroyed by an

act of the Legislature, subsequent to the filing of the

claim in the Ohio Courts. It is suggested that such a

14a

construction of the Ohio law gives violence to the express

enactment of the “borrowing” statute, and further creates

an ex post facto abolition of a ciaim lawfully established

and pending in the Ohio courts.

For our United States Court of Appeals for the Fourth

Circuit to construe the laws of Ohio as the panel in this

case has done thus far, would be to interpret the laws of

that State in such a way as to permit the Nisiotakis

heirs to enter the courts of that State and establish a

cause of action for wrongful death, and then determine

that after they have done so, by inference, the Legislature

has cut off their right to be heard and that they shall

never have their day in court to determine the merits of

their controversy against the Defendant Rockwell. Such

a construction of the Ohio laws surely does violence to

fundamental American concepts of due process and fair

play, and we respectfully suggest may even amount to a

deprivation of equal protection of the laws.

We thus most earnestly request and suggest recon-

sideration of this claim in bane, and an opportunity to

further brief these important issues now presented by this

case in its present posture.

Respectfully submitted.

March 13, 1986.

Toms & BAZZLE, P.A.

By: /s/ James H. Toms

JAMES H. Tous

By: /s/ Ervin W. Bazzle

P. O. Box 988

Hendersonville, N.C. 28793

704-693-0421

[Certificate Omitted in Printing]

15a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-1006

VASILIKI NISIOTAKIS, et al.,

Appellants,

versus

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, ETC., et al.,

Appellees.

No, 85-1040

VASILIKI NISIOTAKIS, et al.,

Appellees,

versus

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, ETC., et al.,

Appellant,

and

STENCEL AERO ENGINEERING CORP., ETC.,

Defendant.

[Filed Apr. 1, 1986]

Appeals from the United States District Court

for the Western Distriet of North Carolina, at Asheville

Woodrow W. Jones, District Judge

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Chapman, with the

concurrence of Judge Widener.

For the Court,

/s/ John M. Greacen

Clerk

VASILIKI NISIOTAKIS, et al.,

Plaintiffs,

THE CoLUMBUS AIRCRAFT DIVISION OF ROCKWELL IN-

TERNATIONAL CORPORATION and STENCEL AERO ENGI-

NEERING CORPORATION, a subsidiary of TALLEY INDUS-

TRIES, INC.,

Defendants.

Filed Dec. 17, 1984]

MEMORANDUM OF DECISION

Plaintiffs instituted this action in the Common Pleas

18a

cel Aero Engineering Corporation (Stencel). In his opin-

ion Judge Kinneary stated that while he could not trans-

fer the action to California as requested by Plaintiffs’

motion, he would “favorably entertain a motion to trans-

fer this action, pursuant to 28 U.S. C. A. 1406 (a), to

sore other forum where personal jurisdiction may exist.”

Plaintiffs thereafter filed a motion for change of venue

and the action was transferred to this Court by order

of Judge Kinneary entered July 31, 1984.

The matter is presently before the Court on Defend-

ants’ motions for summary judgment on grounds that the

action is barred by the statute of limitations. The Court

heard the motions ia Asheville, North Carolina on No-

vember 16, 1984. After careful consideration of the file,

briefs and arguments of counsel the Court now enters

its findings and conclusions.

The deceased, Theodoros Nisiotakis, was a citizen of

Greece and a pilot in the Greek armed forces. On July

8, 1977 he was piloting a T-2E jet aircraft near Cala-

mata, Greece when the aircraft crashed resulting in his

death. The aircraft was manufactured by Defendant

Rockwell. Plaintiffs allege that Nisiotakis was able to

eject from the aireraft prior to the crash but that the

ejection seat malfunctioned and was therefore a contrib-

uting proximate cause of the decedent’s death. The ejec-

tion seat which was installed in the T-2E aircraft the

decedent was piloting had been designed and manufac-

tured by the Defendant Stencel.

This action was filed on November 2, 1981. Service

of process was promptly had on Defendant Rockwell.

However, as to Defendant Stencel, summons was not is-

sued until August 5, 1982. Defendent Stencel was served

by certified mail at its offices in Asheville, North Caro-

lina on August 9, 1982. It is therefore undisputed that

service of process was not made on the Defendant Stencel

until more than five years after the death of Theodoros

Nisiotakis.

Eat te e pee

Ht file N ee dealt ill

HET Ht Hain Sn ay

Aden Pe es ity

1 HARE e

aH 15 1 TH Hie 12115 117055

2113 1115 ul 141. sd 11

8 5 a 59 825

Ati ii Hine eae

outcome which could not have achieved in the courts

of the state where the action was filed. Plaintiffs would

thus be encouraged to file stale claims in states having

liberal limitations periods even though the defendant was

not subject to that state’s jurisdiction, knowing that the

action could later be transferred to a federal court in

pal

Moreover, the Court concludes, as of

Appeals for the Third Circuit in Reyno v. Piper Aircraft

Co., 630 F.2d 149, 165 (8rd Cir. 1980), rev’d on other

grounds, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419

(1981), that to permit the application of the transferor

forum’s choice of law to a defendant over

transferor forum lacked jurisdiction would

decision. North Carolina law provides that actions for

damages on account of the wrongful death of a person

must be filed within two years of the date of death. N.C.

Gen. Stat. § 1-53. This action was not filed within two

years of the decedent’s death and must therefore be dis-

missed as to Defendant Stencel.

e A W te oe oe

21a

merits of a General Motors’ defense.

The issue presently before the Court is the issue the

Court did not address in In re Cragar Industries, Inc.

That issue is whether the choice of law rules of the

transferor or the transferee forum must be applied when

the transferor court has jurisdiction over one of two or

more defendants but lacks jurisdiction over one or more

of the remaining defendants.

The most direct guidance the Court has located con-

cerning this issue is the decision of the Court of Appeals

for the Fifth Circuit in Ellis v. Great Southwestern

Corp., supra, the decision of the Court of Appeals for the

Sixth Cireuit in Martin v. Stokes, 623 F.2d 469 (6th

Cir. 1980), and the Supreme Court’s decision in Van

22a

Dusen, swpra. In Ellis the Court held that following a

section 1406 (a) transfer, regardless of which party re-

quested the transfer or the purpose behind the transfer,

the transferee court must apply the choice of law rules of

the state in which it sits.” 646 F.2d at 1110. See also,

623 F.2d at 472-73. In Van Dusen the Supreme Court

concluded that, under the Erie! doctrine, a substantially

different result should not be reached whether the case

in which the action was filed. 376 U.S. at 638-39, 84

S. Ct. at 830. Both Ellis and Martin relied principally on

Van Dusen’s rationale that the results should be similar

whether the action was heard in state or federal court.

In the instant case, assuming Judge Kinneary’s in-

terpretation of Ohio choice of law rules was correct, the

Plaintiffs would not have been barred from prosecuting

their claims against Rockwell in the

of Ohio. However they would not have been permitted to

the

sarily have been that the action could have proceeded as

to Rockwell and all claims against

been dismissed. In order to maintain their entire action

tained over both Defendants. Both Defendants have suffi-

cient contacts with North Carolina that subjecting them

to the jurisdiction of this State does not violate due

process.

Plaintiffs predictably availed themselves of Judge Kin-

neary’s invitation to transfer this action in order that

this action might continue as to both Defendants and

so that Stencel would not be relieved from potential lia-

1 Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d

1188 (1988).

bility. In so doing the Plaintiffs made a tactical error

which offered a limitations defense not previously avail-

able to Rockwell. Were the Court writing on a clean

slate it would be inclined to retransfer this action to

Ohio. Although the Court is not bound by the decision in

In re Cragar Industries, Inc., supra, it appears likely,

based upon the logic of that decision, that a retransfer

would constitute an abuse of discretion.

The Court therefore concludes that North Carolina

choice of law rules must apply with respect to Rockwell

as well as to Stencel. As previously discussed Plaintiffs’

action is barred by the North Carolina statute of limita-

tions. The motions of both Rockwell and Stencel should

therefore be allowed.

A judgment in accordance with these findings and con-

clusions shall be entered simultaneously herewith.

This the 14th day of December, 1984.

/s/ Woodrow H. Jones

United States District Judge

24a

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

ASHEVILLE DIVISION

A-C-84-294

VASILIKI NISIOTAKIS, et al.,

a Plaintiffs,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL INTER-

NATIONAL CORPORATION and STENCEL AERO ENGINEER-

ING CORPORATION, a subsidiary of TALLEY INDUSTRIES,

INC., Defendants.

[Filed Dec. 17, 1984]

JUDGMENT

THIS MATTER having come before the Court upon

the Defendants’ motions for summary judgment pursu-

ant to Rule 56 of the Federal Rules of Civil Procedure

and the issues having been determined as shown by a

Memorandum of Decision entered simultaneously here-

with;

IT IS, THEREFORE, ORDERED, ADJUDGED AND

DECREED that Defendants’ motions for summary judg-

ment be and the same are hereby granted and this action

is hereby dismissed with prejudice.

The Clerk is directed to send a copy of the Memo-

randum of Decision and this Judgment to the attorneys

for the parties.

This the 14th day of December, 1984.

/8/ Woodrow H. Jones

United States District Judge

25a

APPENDIX E

IN THE UNITED STATES. DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

C-2-81-1437

VASILIKI NISIOTAKIS, et al., ETC.,

Plaintiffs

vs.

TRE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, et al.,

Defendants

[Filed Oct. 27, 1982]

ORDER

This matter is before the Court upon the motion of

defendant Rockwell International Corporation (Rockwell)

for summary judgment pursuant to Rule 56 of the Fed-

eral Rules of Civil Procedure. The defendant seeks

summary judgment on the ground that the statute limi-

tations is a bar to the plaintiffs’ claims.

This action for wrongful death is brought by certain

dependents of the late Theodoros Nisiotakis, who was a

pilot and officer in the Greek Air Force. Mr. Nisiotakis

was killed in an airplane crash on July 8, 1977, some-

where near Calamata, Greece. At the time of the acci-

dent he was operating a Rockwell T-2E jet aircraft. He

ejected himself from the aircraft before it crashed, but

he fell to the earth and died. Defendant Rockwell ad-

26a

mits that it designed and assembled the aircraft flown

by Mr. Nisiotakis at the time of his death and also

admits that it provided field engineering services in

Greece with respect to that aircraft. The other defend-

ant in this action, Stencel Aero Engineering Corporation,

designed, manufactured, and supplied parts for the ejec-

tion system of the aircraft. The plaintiffs brought this

wrongful death action against both defendants asserting

several products liability theories. Suit was commenced

on November 12, 1981 by the filing of a complaint with

the Franklin County Court of Common Pleas. Subse-

quently, the action was removed to this Court on the

motion of Rockwell on the basis of diversity of citizen- .

ship jurisdiction.

Rockwell first contends that the plaintiffs’ cause of

action is barred by Ohio Revised Code Section 2125.02

that provides a two year statute of limitations for cer-

tain wrongful death actions, as over four years have

elapsed between the demise of the decedent and the filing

of this lawsuit. The plaintiffs, on the other hand, con-

tend that because Greece was the locus delicti of the ac-

cide... the five year statute of limitations provided by

Article 937 of the Greek Civil Code is the applicable

statute and that the plaintiffs’ cause of action is there-

fore not barred. Rockwell also asserts that the action

must be dismissed because it was not brought in the

name of the real party in interest, the personal rep-

resentative.

I. The Conflict of Laws Problem

In this diversity case the Court sits as an Ohio Court,

and is bound to apply Ohio law. The Court must as a

threshold matter of Ohio conflict of laws principles de-

cide whether Ohio law or Greek law is controlling with

respect to the relevant statute of limitations.

“The . . long established rule in Ohio is that limi-

tation provisions are remedial in nature and are there-

han those specified in our statute are governed

as to limitation by the Ohio Statute in like manner as

causes of action accruing within the state.” Pinney v.

Cummings, 26 Ohio St. 46 (1875). “Statutes of limita-

tion relate to remedy and are and must be governed by

the law of the forum... A Court has the power to say

when its doors shall be open, and also has the power to

say when they shail be closed.” Kerper v. Wood, 48 Chio

St. 613, 622 (1891).

Some cases suggest an apparent exception to this rule,

and state that where the statute of limitations in the

foreign state terminates the right rather than the rem-

edy, the foreign statute is controlling. E.g., see Maki

v. George V. Cook Co., 124 F.2d 663, 665 (6th Cir.

1942}. But the cases warrant application of this rule

only where the foreign statute terminates the substan-

tive right of action before the forum state’s statute of

limitations has run. Where the foreign state whose sub-

stantive law is being applied defines the substantive

right of a party as to extinguish the right after a given

lapse of time, the forum state by application of its own

purely procedural statute of limitations cannot enlarge

the duration of the substantive right. This rule merely

restates the lex loci delicti rule that the law of the for-

eign state where the wrong occurred governs substan-

tive rights. The Court notes that this approach is con-

sistent with §§ 142-143 of the Restatement (2d) of the

Confliet of Laws:

“§ 143. Foreign Statute of Limitations Barring the

Right

An action will not be entertained in another state

if it is barred in the state of the otherwise appli-

28a

cable law by a statute of limitations which bars the

right and not merely the remedy.”

Under the Restatement’s approach, the law of the for-

eign state governs substantive rights, and the law of the

forum state may terminate the remedy. Cf. Kerper v.

Wood, supra. Thus, the Court must look to Ohio law

to determine the appropriate statute of limitations.

II. The Relevant Statute of Limitations

_ Defendant Rockwell insists that Ohio Revised Code

Section 2125.02 is the controlling statute of limitations.

Rockwell correctly states that plaintiff’s cause of action

under Ohio law has expired. See Ohio Rev. Code Ann.

§ 2125.02 (Anderson 1981). However, the plaintiff’s

cause of action is brought under the Greek Wrongful

Death Act and not the Ohio Act. Therefore, Section

2125.02 is not necessarily controlling. Section 2125.02

states in relevant part: :

Except as otherwise provided by law, every such ac-

tion [for wrongful death} must be commenced within

two years after the death of such deceased person.

Ohio Rev. Code Ann. § 2125.02 (emphasis added).

However, Section 2125.02 does not apply in the instant

case because the law clearly provides otherwise.

“When death is caused by a wrongful act, neglect,

or default in another state, territory, or foreign

country, for which a right to maintain an action and

recover damages is given by a statute of such other

state, territory, or foreign country, such right of

action may be enforced in this state. Every such

action shall be commenced within the time prescribed

for the commencement of such actions by the statute

of such other state, territory, or foreign country.”

Ohio Revised Code § 2125.01 (emphasis added).

Thus, Section 2125.01 requires that the Court look to the

relevant statute of limitations applicable to wrongful

29a

death actions under Greek law. Even though the Greek

statute of limitations for wrongful death is purely pro-

cedural as Professor John Kozyris undoubtedly correctly

states in his affidavit, Ohio law mandates the application

of the Greek statute." The Greek statute applicable to

wrongful death actions provides that

[a] tort claim is barred at the end of five years

from the time that the victim learned of the dam-

age and of the person obligated to make repara-

tions; in any event, the claim is barred after the

lapse of twenty years since the act occurred.” Ar-

ticle 987 Civil Code of Greece (current text, transla-

tion by Professor John Kozyris, Professor of Law,

Ohio State University College of Law).

The defendant does not contend nor can it seriously ar-

gue that this five years statute of limitations if ap-

plicable would not allow the plaintiffs to maintain their

cause of action. Rockwell’s own expert in Greek law,

Professor Kozyris, admitted in his affidavit concerning

Greek law that Greek Civil Code Article 937 applies to

wrongful death actions. The Court must therefore con-

1The Court notes that neither of the two parties that briefed

this issue brought this matter to the attention of the Court. How-

ever, in its memorandum in support of its motion for summary

judgment, defendant Rockwell stated, quoting a sentence from

Section 2125.01 of the Ohio Revised Code:

“When death is caused by a wrongful act, neglect or default

in another state, territory, or foreign country, for which a

right to maintain an action and recover damages is given by a

statute of such other state, territory, or foreign country, such

right of action may be enforced in this state.”

Nevertheless, Rockwell's counsel! mentions nowhere in its argument

er memorandum the very next sentence of the statute that states:

„Every such action shall be commenced within the time pre-

scribed for the commencement of such actions by the statute of

such other state, territory, or foreign country.” Ohio Rev,

Code Ann. § 2125.01.

clude that the plaintiffs’ cause of action is not barred by

the statute of limitations.

IV. The Real Party in Interest

The defendant also seeks dismissal of the action on

the ground that it was not brought in the name of the

real party in interest. Under Ohio law, the “personal

name

representative of the deceased. Thus, they have not

in-

Nevertheless, neither dismissal of the action nor sum-

mary judgment in favor of the defendants are appropri-

ate remedies for failure to bring on action in

of the real party in interest. Under Rule 17 of the

Federal Rules of Civil Procedure,

no action shall be dismissed on the ground that it

is not prosecuted in the name of the real party in

interest until a reasonable time has been allowed

after objection for ratification of commencement

of the action by, or joinder or substitution of, the

real party in interest; and such ratification, joinder,

or substitution shall have the same effect as if the

action had been commenced in the name of the real

matter to the attention of the Court is most perplexing.

31a

unwarranted at this juncture in the proceedings. Id. See

3A Moore’s Federal Practice 17.151 (1981). If an

executor or administrator of the estate of Theodoros

Nisiotakis has been appointed under the laws of Greece,

§ 2129.04. Ancillary administration of the estate

be had upon the application of any interested per-

in Ohio in which is located property

the decedent. Id. “An action for wrongful death is

an decedent’s estate and is, therefore, suffi-

cient to justify the appointment of an administrator or

ancillary administrator in this state, even though there

existed no other necessity for such an appointment, and

the deceased was not domiciled in the state, and left no

roperty [other than the action for wrongful death] in

this state.” De Garza v. Chetister, 62 Ohio App. 2d 149

(Lucas County App. 1978). Thus, an ancillary adminis-

trator may be appointed to administrate the decedent’s

;

tion over the matter appoints an administrator, he or

she could be joined or substituted in this action.

The Court determines that a period of ninety (90)

days is a reasonable time for the plaintiffs to obtain the

ratification of the action by, or joinder or substitution

of, the real party in interest, this period being subject,

of course, to such extensions of time as the Court may

deem necessary to advance the cause of justice. If the

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7s Joseph P. Kinneary

United States Distriet Judge

IT IS SO ORDERED.

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38a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

C-2-81-1437

VASILIKI NISIOTAKI, et al.,

Plaintiffs,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, et al.,

Defendants.

OPINION AND ORDER

aHe

the Supreme Court of Ohio in Fox v. Morrison Motor

Freight, Inc., 54 Ohio Ops. 2d 301, 304-305 (1971)

(Duncan, J.). There the Court stated that:

The simple meaning of [Ohio Revised Code!

2125.01 is that a right to sue for an alleged wrong-

ful death occurring in another state may be enforced

in the courts of Ohio, While the General Assembly

did, in effect, incorporate the statute of limitations

of the situs state; its failure to specifically require

any further application of foreign law supports our

conclusion that there is no intended requirement that

the entire Illinois statute be utilized ... (emphasis

changed).

Thus, the Ohio Supreme Court holds that where an action

is brought in Ohio under Ohio Revised Code § 2125.01 to

enforce the wrongful death statute of a foreign situs,

the Court must apply the statute of limitations of that

situs.’ Fox, supra, at 304. In its Opinion and Order of

Ohio Revised Code § 2125.01 provides in part:

Every such action [brought under the statute of a foreign

state, territory, or country] shall be commenced within the

time prescribed for the commencement of such actions by the

statute of such cther state, territory, or foreign country.

The Supreme Court of Ohio in Foz, supra, 54 Ohio Ops. 2d at 304,

stated in unambiguous terms that this provision is intended to

fendant’s request for certification for interlocutory ap-

peal pursuant to 28 U.S.C. § 1202 (b) is contrary to the

interests of justice, and the request is therefore DENIED.

IT IS SO ORDERED.

/s/ Joseph P. Kinneary

United States District Judge

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

C-2-81-1437

VASILIKI NISIOTAKIS, et al.,

Plaintiffs

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, et al.,

Defendants

Filed June 27, 1984}

OPINION AND ORDER

This matter is currently before the Court on a mo-

tion to dismiss or, in the alternative, for summary judg-

ment filed by the defendant, Stencel Aero E

Corporation. Defendant’s motion to dismiss is predicated

upon its belief that this Court lacks personal jurisdiction

with respect to defendant. Defendant’s motion for sum-

mary judgment is predicated upon its belief that this

action, as it relates to defendant, is time-barred by the

applicable statute of limitations. Plaintiffs in this action

are seeking to recover monetary relief from the defend-

ants, The Columbus Division of Rockwell International

Corp. and Stencel Aero Engineering Corp., for the death,

87a

allegedly caused by the defendants, of Theodoros Nisio-

takis.*

RELEVANT FACTS

Stencel Aero Engineering Corp. (hereinafter “Sten-

cel”) is a corporation organized and existing under the

laws cf North Carolina. It is a manufacturer of com-

ponent parts used in aircrafts which contain an ejection

escape system. Its only facilities are located in Asheville,

North Carolina and Hurricane Mesa, Utah. Its prod-

ucts are designed and manufactured solely at its North

Carolina facility. The facility in Utah is used solely for

the purpose of testing its products.

Stencel’s work is done pursuant to contracts entered

inte with the United States Defense Department. The

resulting products are delivered to the United States

Military at the North Carolina plant. The Military is

then responsible for the later incorporation of Stencel’s

component parts into Military aircraft. In the context

of this case, it is apparent that the Military delivered

Stencel’s ejection escape system to the defendant, The

Columbus Aircraft Division of Rockwell International

Corp. (hereinafter Rockwell“), for incorporation into

Rockwell’s airplanes, specifically an airplane known as

the T-2E.

The deceased, Theodoras Nisiotakis, was a citizen of

Greece and a member of the Greek military. It is al-

leged, by the plaintiffs, that Nisiotakis, on July 8, 1977,

was piloting a Rockwell T-2E airplane near Calamata,

Greece when the aircraft crashed causing his death.

Plaintiffs further alleged that the resulting death was

caused by the manufacturing and design defects of the

T-2E. With respect to Stencel, plaintiffs specifically al-

1 The facts relevant to the issues which this Court must consider

herein are not substantially in dispute. Therefore, the Court need

not conduct an evidentiary hearing. Welsh v. Gibbs, 631 F.2d 436

lege that the T-2E’s ejection system, allegedly manufac-

tured by Stencel, malfunctioned because of a manufac-

turing and/or design defect and was, therefore, at least

partially the proximate cause of Nisiotakis’ death.

Plaintiffs’ cause of action arose on July 8, 1977, the

date upon which the aircraft Nisiotakis was piloting

crashed causing his death. This action was filed on No-

vember 2, 1981 in the Common Pleas Court of Franklin

County, Ohio. It was subsequently removed, upon the

request of the defendant Rockwell, to this Court on De-

cember 3, 1981. Plaintiffs served Stencel with a copy

of the Complaint in this case on August 9, 1982.

DISCUSSION

The Court will initially discuss Stencel’s motion to dis-

miss. That motion is predicated upon Stencel’s belief

that this Court lacks personal jurisdiction. A ruling

in favor of Stencel, with respect to this motion, will elimi-

nate the need for this court to consider Stencel’s alterna-

tive motion for summary judgment.

The law governing personal jurisdiction is, although

difficult to apply, well established. It is clear that Ohio’s

long-arm statute, Ohio Rev. Code Ann. § 2307.382, per-

mits the exercise of personal jurisdiction to the limits

allowed by due process. In order to subject a defendant

to the personal jurisdiction of the Court, due process re-

quires that there exist certain “minimum contacts” with

the forum “such that maintenance of the suit does not

offend ‘traditional notions of fair play and substantial

justice.’” International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945).

In considering Ohio’s requirements for invoking its

jurisdiction over a nonresident defendant, pursuant to

§ 2307.382, the Ohio courts have formulated the following

three-part test:

39a

First, the defendant must purposefully avail himself

of the privilege of acting in the forum state or caus-

ing a consequence in the forum state. Second, the

cause of action must arise from the defendant’s ac-

tivities there. Finally, the acts of the defendant

must have a substantial enough connection with the

forum state to make the exercise of jurisdiction over

the defendant reasonable. (citations omitted).

Southern Machine Co. v. Mohasco Industries, Inc., 401

F.2d 874, 381 (6th Cir. 1968). In order to determine

whether plaintiffs have met their burden under the rule

enunciated herein, the Court must closely evaluate the

particular facts of this case.

The only contact which Stencel has with the State of

Ohio is that certain parts manufactured at its plant in

North Carolina were installed in airplanes manufactured

in Ohio by defendant Rockwell. There is no evidence that

Stencel is authorized te do business in Ohio or that it

solicits business in Ohio. Further, there is no evidence

that employees of Stencel have ever travelled to Ohio

for the purpose of soliciting or carrying on business.

Nor does the record indicate that Stencel regularly, or

even occasionally, sells its products directly to Ohio cus-

tomers. Aside from the incorporation of Stencel’s com-

ponent parts into Rockwell’s airplanes, there is no evi-

dence to suggest that Stencel has any contacts with

Ohio.

Stencel’s contact with the State of Ohio, through Rock-

well, is made even more tenuous in that the parts ulti-

mately used by Rockwell were not directly purchased

from Stencel. Rather, such parts were received by Rock-

well from the United States Military. It was the Mili-

tary that purchased such parts from Stencel and those

purchases were made in North Carolina. Nonetheless,

plaintiffs contend that Stencel is subject to the personal

jurisdiction of this Court, pursuant to § 2307.382 (A)

40a

(1), because it is, and has been, “. . . transacting. . .

business in this state.” ?

Plaintiffs, to a considerable degree, rely upon Gray v.

American Radiator & Standard Sanitary Corp., 22 III. 2d

432, 176 N. E. 2d 761 (1961), and its progeny for their

argument that Stencel, because it should reasonably have

foreseen that its products would travel to Ohio, was “...

transacting . . . business in this state.” Gray and its

progeny, however, are distinguishable in one very im-

portant respect. In all of those cases, the tortious injury

of which the plaintiff or plaintiffs complained occurred

in the state in which the suit was brought. Here, how-

ever, the tortious injury of which plaintiffs complain

occurred in Greece.“ In Gray, the Court stated:

As a general proposition, if a corporation elects to

to sell its products for ultimate use in another State,

it is not unjust to hold it answerable there for any

damage caused by defects in those products.

176 N. E. ad at 766. In this case, the product at issue was

not “ultimately used” in Ohio. P uther, it was “ultimately

used” in Greece.

It is clear that the only plausible subsection of § 2807.382(A)

under which plaintiffs may argue that personal jurisdiction exists

is subsection (1). Subsections (3), (4) and (5), the alternative

subsectioms under which plaintiffs argue that personal jurisdiction

exists witth respect to Stencel, require that the “tortious injury”

have occurred in Ohio. Busch v. Service Plastics, Inc., 261 F.Supp.

136 (N. D. Ohio 1966). The tortious injury of which the plaiutiffs

complain herein clearly did not occur in Ohio. In Gray v. American

Radiator & Standard Sanitary Corp., 22 III. 2d 432, 176 N.E.2d 761

(1961), the court stated:

It is well established. .. that in law the place of a wrong is

where the last event takes place which is necessary to render

the actor liable. Restatement of Conflict of Laws, sec. 77.

Id. at 762. In this case, the place of the wrong was, and, there-

fore, the tortious injury occurred in, Greece. It was in Greece

where the crash giving rise to potential liability occurred.

3 See note 2, supra.

4la

The importance of the distinction between this case

give, with respect to the issue of personal jurisdiction, to

orum state’s interests in maintaining jurisdiction

foreign corporation. If a foreign corporation has,

through its business contacts with the forum state,

availed itself of the laws of that state, or if a product

manufactured by such a corporation injured a resident

of the forum state, or merely injured a person present

in the forum state, the forum state’s interest in resolv-

ing the subsequent controversy is obvious. In this case,

however, it is difficult to speculate in what manner the

Ohio courts would be at all interested in resolving the

existing dispute between plaintiffs and Stencel. The

products manufactured by Stencel were never used by

a consumer in this state. Nor would such use have been

reasonably foreseeable by Stencel. Neither did Stencel

seek to avail itself of the protections and benefits of Ohio

law. For example, Stencel could not sue Rockwell for

nonpayment of a debt arising with respect to the prod-

ucts at issue. Stencel was presumably paid in full by the

United States Military.

The Court, in its consideration of the issue herein

presented, must held that it does not have personal juris-

diction over defendant Stencel. The contacts which Sten-

cel has, or has had, with the State of Ohio, if such can

be appropriately termed contacts, are not sufficient to

meet the three-part test delineated in Southern Machine

Co. v. Mohasco Industries, Inc., supra, or, for that mat-

ter, the strict requirements of due process. With re-

spect to the first part of the Southern Machine test, it

is fairly clear that Stencel did not “. . . purposefully

avail [itself] of the privilege of acting in the forum

state or causing a consequence in the forum state.”

Stencel did not derive incume from customers of its

products in Ohio. Rather, Stencel derived its income

from the United States Military. While it may be ar-

ate

42a

gued that Stencel indirectly derived income from goods

from Stencel if such goods were not to be used in Rock-

well aircraft manufactured in Ohio, such is, in the

Court’s opinion, insufficient to confer personal jurisdic-

tion over Stencel. The type of impact to which the court

in Southern Machine refers is of a considerably greater

magnitude than that which is present here.

If the Court were to take plaintiffs’ foreseeability

theory to its logical conclusion, Stencel would be amen-

able to suit in every state or country in which the

United States Military delivered Stencel products for

incorporation into military machinery. This Court is not

inclined to adopt the notion that a product sold by the

manufacturer or seller of such product is, in effect, the

agent of such manufacturer or seller for purposes of

service of process. World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 296 (1980). It is the Court’s

opinion, therefore, that plaintiffs have failed to show,

to the requisite degree, that defendant Stencel has, or

has had, sufficient contacts with the State of Ohio to

make it amenable to suit in the Courts of Ohio. Plain-

tiffs are required, with respect to issue of personal juris-

diction,

. . . to make a prima facie case of jurisdiction,

that is [they] need only “demonstrate facts which

support a finding of jurisdiction in order to avoid a

motion to dismiss.”

631 F.2d 436, 438 (6th Cir. 1980). Plaintiffs have

failed to sustain their burden. In the langne~e of Ohio

Rev. Code Ann. § 2307.882(A) (1), plaintiffs nave failed

to show that Stencel was ,and is, . . transacting any

business in this state.”

II.

The Court, because of its findings herein, need not con-

sider Stencel’s alternative motion for summary judgment.

It must, however, consider plaintiff’s motion to transfer

43a

this action back to California. This action had initially

been filed in California. However, it was determined by

the Superior Court of California that California was not

a convenient forum for the adjudication of this case.

In light of this finding, the Court cannot consent to send

this action, as it relates to defendant Stencel, back to

California. The Court would, however, favorably enter-

tain a motion to transfer this action, pursuant to 28

U.S.C. § 1406 (a), to some other forum where personal

jurisdiction may exist.

WHEREUPON, the Court shall refrain from ruling

upon the motions discussed herein until such time as

plaintiffs have had an opportunity to request a transfer

of this action to an appropriate forum.

Plaintiffs are hereby given leave to file a motion for

change of venue, pursuant to 28 U.S.C. § 1406, within

30 days from the date of this order.

IT IS SO ORDERED.

Js, Joseph P. Kinneary

United States District Judge

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

C-2-81-1437

VASILIKI NISIOTAKIS, et al.,

Plaintiffs,

THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL

INTERNATIONAL CORPORATION, et al.,

Defendants.

[Filed July 2, 1984]

ORDER

This matter is currently before the Court on the motion

of plaintiffs, Vasiliki Nisiotakis, et al., for change of

venue. Specifically, plaintiff’s request, in the interests of

justice, that this action be transferred to the United

States District Court, Western District of North Caro-

lina, Asheville Division. Upon consideration and being

rey Maric Pye Racism: oe Bw

be meritorious and it is, therefore, GRANTED. This ac-

tion, in its entirety, hereby tr transferred to the United

States District Court, Western District of North Caro-

lina, Asheville Division.

IT IS SO ORDERED.

/s/ Joseph P. Kinneary

United States District Judge

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