# Petition for Writ of Certiorari — Nisiotakis v. Columbus Aircraft Division of Rockwell International Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2131%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 829 ## Text 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 /r APPENDIX E (ß „„ „„ APPENDIX F. APPENDIX G. J 1. SSH indian aca (i) iv 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, v. \ 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). 2 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 4 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- 5 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. (C) A personal representative appointed in this 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 7 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 8 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 10 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- 11 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 12 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. 13 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. 14 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 la 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. i f 5 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 F E 5 L ; . =F i 8 5 Co 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 5 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 b : é 2 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 : 10 Mil zt gt i + However, Section 2125.02 does not instant case because the law clearly wise. ii fe a it ; : : 1 f 2 i J i i FLEE sf ne Rae = ae 12 8 e 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. 7a 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. 8a 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. 9a 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. m 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, v. 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 5 i pal al IE i i : 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 8 N 1 i ff 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. . 3 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 ; 1 cs 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 11 finger, 1 1 4 be 33 oH 1215 if Tat i 215 3 13 4 1 at 31335225 HTT 1131 7s Joseph P. Kinneary United States Distriet Judge IT IS SO ORDERED. weren ? ER ad bes he! , . eee or | eee | 38a APPENDIX F IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION C-2-81-1437 VASILIKI NISIOTAKI, et al., Plaintiffs, V. THE COLUMBUS AIRCRAFT DIVISION OF ROCKWELL INTERNATIONAL CORPORATION, et al., Defendants. OPINION AND ORDER ¥ aHe 11 it i et H ii f i i 8 15 f ee 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 V. 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. J. 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 P 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, V. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2131%3A1. Public record. Not legal advice.