Brief for the Respondents in Opposition — Curtin v. Superior Court of California

&

o~

e

2 ian

a

y ;

a

o

AT. & BP. Ry. Co. v. District Court (Okla, 1956) 298

P24 627, cort. den. 952 US. OT... 2... 12

Baltimess & Obic Ry. Co. v. Kepner (1961) 3144 US. 44... 8,9

Broderick v. Ronmer (1935) 294 US. @29............... 1

C. & O. Ry. Co. v. Donovan (1964) 29 1124 178......... 12

CBRL & PR. Co v. Riedever (Mo, 1970) 64 6.W24 25 13

Douglas v. N.Y, NH. & H.R Co. (1999) 299 US. 377... 11

Bilictt v. Johnson (1956) 265 Mo. @81..............._. eB

Giles v. Western Air Lines (1967) 73 Pupp. 616........ 13

Gonsales v. AT. & GF. Ry. Co. (1962) 169 Ken. 689.... 12

ii Tams or Avewcmems Crm

Gondwine v. Superior Court (1985) 63°94 481.......... 13, 18

Gore v. US. Steed Corp. (1954) 15 NJ. 201, cor. den. 348

sep othe te @Gieintine ieia =

Koster v. Lambermens Mutual Co. (1967) 399 US. S18... 13

Lect v. Union Pasifie Ry. Co. (1984) 25 C2465........ 7

Lomard v. Vicuburg, S&P. R Co (1988) 198 US. 486 10

Miles v. Mlineie General R. Go. (2963) 335 US. 698 ae 8.9

Minneapolis ete. B. Co. v. Merrick (1930) 254 US. 376... 20

Missouri v. Mayfield (1950) 340 US.1............. 569,12.

Se a es Ca eee &.

EE Keciccccccccccccccessccesocesssdecsoes 9, 10

Price v. AT. & BF. Ry. Co. (1954) 42 C.24 577, 250 P24

C00, © ALMSS TER, cost. dem. Ont 04, 056, 808 US.

Rink v. NV.C. RCo. (4888) 429 Pa. 235, 200 A.0d 372 13

futher By. Cov. Meine (a.App. 1967) 196 Sad

EE scicsmisiedideen: Membaaniaetekeaskbenete 13

‘Thompson v. Continental Ins. Do. (1967) 66 C24 728....13,18

Utley v. St. Petersburg (1983) 292 US. 106............. 0

Williams v. North Carolina (1962) 317 US. 287.......... il

Rtstutes

California Code of Civil Procedure : |

Ra ckscnaanesoowanil ar °

Sd: cinipcecsdnaberpoencéoanosessoooons

28 UBL. MOKe)........... ici seia cilttibmiiatenk otis 1

Pederal Employers Liability Act (VP ELA) eae’ /,

(6 UBLA. BB)... welvonbine noetesonecill pasar

<s..

No.1900

Einanen V. Ocamm, as Administentein of the |

Estate of George F. Giheon, Deceased, ete.,

Suremson Cover or rue Srate or Causronsa, ,

" Ix axp por THE CouNTY oF ALAMEDA,

?

Gasat Nonruzax Ranway Compan, 6

Respondent, (Real Party sn Interest ).

)

GESPORGENT AND REAL PARTY i INTEREST.

, a

“oe

PoaEwoarn .

The instant petition represents the third attempt of

petitioner's counsel, following two prior failures, to

obtain from this Court a writ to review a judgment

of dismissal, on grounds of inconvenient forum, en-

‘tered in an “imported” ease brought in the Superior

Court of California pursuant to the Federal Employ. ‘

® |

_ a, |

J

{ \

~~

April 6, 1970 (397 US. _,'S Led2f 522).

‘ ,

The essential facts of this case are sufficiently stated

in the opinion of the Court of Appeal of California

for the First Apneliate District (mow cflicially re-

ported, 12 C.A2d 105), a copy of which opinion is

annexed as. Exhibit 5 to the petition: se pp. vi and

vii of Exhibit B.

Petitioner dors not appear to challenge the Court's

statement, except for the gratuitous (and wholly er-

roneous) assertion (her brief, p. 2) that she had

**made an uncontradicted showing of clear lability so

that no econvemence of defense witnemes was shown

to be in any way involved as to liability.” The fact

is that no such showing, or otherwise,

was made by petitioner at any stage of the case. To

«the contrary, Grest Northern has contended at all

se

e e e

3 a

ties, and silt conten, thet it wos whally tro of

megligence (and thus of liability) in connection with

the accident upon whic the suit was based; and, if

an action predicated upon that accident is commenced

and tried im 4 ‘convenient forum” (e.g. a competent

Court in the State of Washington), Great ‘Northern

will be prepared to and will call as many as are avail-

able of the ten (or more) witnesses referred to in the

opinion of the Court of Appeal. :

The essential similarity of this case to the Farmer

case is chown when the facts of the two cases are con-

aheibeneGogtias te pens araggae

ing briefs in the two sapes ave compared.

Both cases involve alleged injuries suffered by op-

erating employees of Great Northern. Both employees

resided at or néar Spokane, Washington. The widew .

of the employee (George. Gibson), whose accidental

death gives rise to the case at bench, still resides at

Spokane. Farmer's alleged accident occurred at a sta-

tion (Thama, Idaho) on Great Northern's main line,

some 60 miles eact uf Spokane, Washington. Gibson's

aceident cecurred at or near a station (Stratford,

Washington) on the came main line, some 60 miles ‘-

west of Spokane.

The eame counsel who represented Vesmer st all

stages of that ease also represents the petitioner in

ease at bench. The same counsel also represented

plaintiff, (who petitioned this Court for certiorari)

in the Price case, supra.

To emphasize further the similarities, the essential

contention here presented (p. 34 of petitioner's brief )

4

in verbatim from the language used in Farmer (p. 28

Farmer; and in fact exactly reproduces much of that

brief, line for line and word for word. Attached

hersto, as Appendix A, is a listing of the pages, or

petitioner’s brief is no more than a repetition of the

of an action, must retain and decide that action, even

though the facts presented demonstrate that that

eourt is not a “‘eonvenient forum”, and that a greatly '

That very question wes presented to and decided

by this Court in Missouri v. Mayfield (1950), 340 US.

1, in whieh it was said (at pp. 4-5): |

dl

433] elie

ine aa

il if if

a

i

Hit

.

Hea

Shortly following M

(Price v. A.TAB.F. Ry. Oo.

SF

Pp. x, xi, xii, xiv),

Exhibit B to petitioner's brief,

In Price, the plaintiff, an employee of the defendant

railroad (The. A.T.48.F. Ry. Co.), was a resident of

New Mexico, While so employed he was

in-

jured in accidents oceurring in that state. The defend-

J

7

ant railroad was (and is) a Kansas corporation with —

ters offices in both New Mexico and California. Price's

action, under the F.E.L.A., was brought in the Su-

perior Court of California for Los Angeles County.

The defendant railroad in Price moved fod dis-

missal on grounds of foram non conveniens. The mo-

tion was granted by the trial court and judgment was

duly entered ; but, upon appeal to the State Appellate

Court, that judgment was reversed (250 P.2d 664).

The defendant railroad then petitioned the Supreme

Court of California to hear the case, and upon such

hearing, the judgment of dismissal rendered by the

trial court was affirmed.

In the Supreme Court of California, Price (who

was represented at al] stages by the same counsel who

represented Farmer in his reeent case, and who now

represents the petitioner in the case at bench) ad-

vanced the same contention now made in the instant *

petition; namely, that he had ‘‘an absolute right” to

have his ease retained and tried in the Court of his

choice in California once venue was established pur-

suant to Section 56 of the F.E.L.A. (v, 42 C.2d, p.

586; and compare pp. 4-5, 32-35, of petitioner's brief

herein ).

In the Price opinion the Supreme Court of Cali-

fornia referred to its earlier decision in Leet v, Union

Pacifie Ry. Co, (1944), 25 C.2d 605, in which it had

held that in F.E.L.A. cases brought in California —

there was ‘“‘no room” for the doctrine of* forum non

convenions, eaying (43 0.24 pp. a:

teed

/

Fa

|

i

|

in which the

doctrine of forum non conveniens has been con-

sidered and discussed by this court, ‘and as al-

ready mentioned we rejected it in connection with

the PELA litigation there involved because of

our belief that we were so compelled by the de-

eision of the United States Supreme Court in the

Miles case. Lut sinee that court, in the Mayfield

case, has now lifted that compulsion (if it ever

intended any), we perceive no reason why the

doctrine should not be available in this state, upon

a proper showing and without discrimination

against either non-citizens of California or

against VELA cases,”

Court of California (No, 180, October Term, 1964).

As previously stated, that petition was denied, with-

out opinion (October 14, 1954; 348 U.S, 839, 99 L.ed.

asserted to support the present petition (see pp. 5, 7, —

8, 9-10, 24-25, 32, 34); .

Baltimore & Ohio Ry. Co. v. Kepner (1941),

Bu US. 4; - ace

Miles v. Iinoin Central R, Co, (1941), 315

U.S, 608; | eae

Pope vi ALL, BR, Co. (1953), 345 U.S, 379,

It was then Price’s basic argument, and similarly

it was later strenuously contended by Farmer, that by

these decisiong the rule was established that a plaint-

iff in an F.E.L.A. ease has an absolute right to select

any forum in which venue ean be iaid, and that this

selection eannot be defeated or disturbed on the

ground of forum non conveniens, —

The cunclusive answer to this contention, which was

declared and given effect in Mayfield (by this Court,

340 U S., at pp. 4-5) and Price (by the Supreme Court

of California, 42 C.2d, at pp. 561-582, following May-

field), is that neither Kepner nor Miles forbids the

application of forum non conveniens in an F.E.L.A.

action. The same is equally true so far as concerns

Pope, inasmueh as this Court denied review in Price,

and again later in Farmer, although in both eases, the

Pope, Kepner and Miles decisions were cited and re

lied upon by the petitioners in virtually the same eon-

notation,

The propriety of a dismissal of an F.E.L.A. case on

grounds of ineonvenient forum by the State Court in

which the case was filed was also by this

Court in Parsons v, Chesapeake & Ohio R. Co, (1963)

375 U.S. 71, in whieh this Court compared the “dis-

eretionary determinations” required in state and fed-

eral courts in cases in which motions invoking this —

principle are presented, It appeared, in Persons, that

an F.E.L.A. aetion had heen dismissed on this ground,

by the State Court (at Chieago) in which it had heen

filed; and thereupon an identical action was filed in

the Federal Court at Chicago, The latter Court held

apolis ete, B. Co, v, Merrick (1920) 254 U.S, 376 ;

(if any) is not “substantial.” That question, to the

extent any federal implications are involved, has heen

fully considered and determined by this Court; and

Ts lo cubed thet no haste eulate for the grésding

of the petition upon the supposed ground that a fed-

(>) ‘Tho action of the State Courts in this ence constituted

In petitioner's brief reference is made to Section

tion is earnestly advaneed by petitioner (her brief,

pp. 11-13) that “Federal Law Governs,” and that

“This case would not even justify transfer in a fed-

eval court,” ete, (her brief, pp. 31-82).

This argument is completely misdirected, The State

Courts obviously did not undertake to act pursuant

to Beetion 1404(a), Instead, the State Court of Ap-

peal recognized and stated the prineiple of forum non

conveniens, and directed the application of that prin-

ciple by the trial, (Superior) Court, The principle

thus applied was developed in the eourts of many of

the states, as well as in federal practice, long prior to

the enactment (1948) of Section 1404(a) : Gulf Oil Co.

v, Gilbert (1047), 330 U.S, 501 (604-506); Broderick —

v. Bonner (1935) 204 U.S, 429 (643); Williams v.,

North Carolina (1942) 317 U.S, 287 (204); Douglas

v. N.Y., N.HaH. B;Co, (1920) 279- U.S, 377 (387),

ina

~

ann ciitiieath tence beep enn beat

rather than federal law, saying (340 U.S. at p. 4):

e

“But if @ State chooses to ‘{prefer] residents in

—accens to often over-crowded courts’ and to deny

access to all

3

.

Te

Va

|

178;

AT, & BF. Ry Co, v. District Court (Okia.,

1956) 208 P.2d 427 (cert, den. 352 U.8, 879) ;

Goneales v, A.T. & 8.F.. Ry. Co, (1968) 180

é Kan, 680; ee |

Johnson v, C.B, dQ, Ry. Co, (1964) 243 Minn. -

66;

6

;

Southern Ry. Co, v.\MeVubbine (Pia.App., |

1987) 196 Bo.24 512; |

Rint v. N.YL.B. Co, (1968) 429 Pa. 235, 240 |

A2d 372; '

CSO Oe, «, Liane Gia, 1970) 454

S.W2426. . : |

Compare, also, the following cases in whieh forum

“hon conconens was rocogniaed in setons other than

under the P.E.L.A.:

Gulf Of Co. v. Gilbert, eupra;

” Kester vy, Lanformens Mutual Os. (3001) $80

U.S. 518;

Giles vv, Western Air Lincs (1987)73 VStupy.

616;

Gore ¥, UB. Steet Corp, (1964) 16 ¥.3. 901

(cert, den., 348 U.S, 861);

Riliott v, Johnson (1956) 265 Mo, GB1; -.

~ Goodwine v. Superior Court (1965) @ C24

461;

Thompson v, Continental Ins, ———

C2178, #327»

procedure when a motion is made for a “change of

place of trial”, i.c., a change of “venue”. Again, on

tie

ili ast

iil

4122]

SUP

TRH

ii

OTHE

= This principle can and does apply only in an

individual ease (whether under V.E.L.A., or other-

_ wise) where the fnets demonstrate that it would not

he eonvenient to retain and try the ease in the court

would he eonvenient no to

where it was brought,

do in another court of

juriadiction, As this

> Court said in the Gulf

16

least two forums in which the defendant is amen-

able to process; the doctrine furnishes criteria

for choice between them.”

The fallacy of petitioner’s argument, predicated

upon considerations of venue, is apparent at the very

outset of her brief, where, as already noted, she re-

fers to and quotes Section 400 of the California Code

of Civil Procedure, and asserts that Great Northern’s

application for mandate, presented to the California

Court of Appeal, was made pursuant to that section.

The wording of Section 400 makes clear that it

deals only with procedure following the granting (or

denial) of a motion in the trial court ‘‘to change the

place of trial” of an action pending there. No such

motion was made by Great Northern in the case at

bench; no question of ‘“‘place of trial” (i.e, of

‘‘venue”) was ever raised. The motion in the trial

court was specifically, and solely, for dismissal on the

ground of inconvenient forum, and was of the same

precise character as the motions which were granted

in the Price and Farmer cases.

Petitioner goes to great length (her brief, pp. 14-

26) to argue her contention (brief, p. 24) that ‘“‘to

say that an F.E.L.A. non-resident plaintiff cannot sue

a defendant corporation doing business in California

- when every other non-resident creditor on every other

debt has a right to bring such an action” is ‘‘obviously

a denial of the privileges and immunities of the citi-

zens of other states.” The simple and complete answer

to this contention is that Great Northern has not as-

17

serted, and the California Courts have not held even

by implication, that an F.E.L.A. non-resident plaintiff

may not sue a non-resident defendant doing business

in California. In fact, in the opinion now attacked

by petitioner, it is said (Exhibit B to the petition, pp,

“It is conceded that under the F.E.L.A, an action

may be filed in any state where a defendant

railroad company ‘resides’, or where the cause of

action arose, or in which it may be doing business

at the time of the commencement of the action

(Title 45 U.S.C., 656). Since Great Northern

was doing business in California at the time of

the subject action, its venue was properly laid in

that state, which became vested with risdiction

over both the subject matter of ‘wetion and

its parties.” (Emphasis as in the @

It is erroneous for petitioner to contend, as ap-

parently she does (e.g., at pp. 20, 24, 32, of her brief),

that California applies the principle of forum non

conventens in F.E.L.A. cases only, but declines to ap-

ply that principle in other cases, The Supreme Court

of California has recognized that this principle is of

general application in cases where the cause of action

arose in another state, and the plaintiff or other real

party in interest is a noh-resident, provided also that

ee, _-—

the other criteria warranting its application (as set

forth, for example, in the Gulf Oil opinion, 330 U,B8.,

at pp. 507-509) are also present. In Price, tho Su-

preme Court of California pointed out (42 C,2d, at

p. 583) with the citation of numerous prior decisions,

that:

This conclusion was obviously acceptable to, and ac-

cepted by, this Court, since certiorari was denied (348

U.S, 830),

In the petition for certiorari in the Farmer case,

the same contention was again advaneed (vy. pp. 4, 10,

12-14 of that petition); and, as already nota\, that

petition wan likewise denied (25 L.ed.2d 532), thus

agnin indieating this Court's view that the petitioner's

Note may: also be taken of the two deeisiczs of the

State Supreme Court, rendered subsequently to Price,

and already cited herein, which demonstrate that in

California the doctrine of forum non conveniens in

not limited in its application to P.E.L.A. cases

brought by or for the benefit of non-residents. In

Goodwine ¥, Superior Court, wapra, the Court held

(63 0.24, at p, 485) that forum non conveniens ‘‘is

accepted in this jurindiction (citing Price), and ap-

plies to for support” (citations), In Thomp-

won v, Cont Ins, Co,, wapra, the Court referred

(66 C.2d, at pp. 742-744) to both Price and Goodwine,

and cited various typical cases in the several states,

and in the federal courts, in which the doctrine has

heen widely recognized.

19 Q

The general application-of the doctrine in Califor-

nia, without limitation to F.E.L.A. cases only, is-

evidenced further by the recent (1970) enactment of

Section 410.30 of the California Code of Civil Pro-

cedure (quoted by the Court of Appeal; Exhibit B to

the petition, at p, x). It will be noted that this ytatute

may be employed in any pending action, of whatever

type, in which it is found ‘‘that in the interest of sub-

stantial justice (the) action should be heard in a

forum outside this state.” P

It is clear that in California, as elsewhere in the

courts of the United States and most, if not all of the

states, forum non conveniens is an accepted principle,

which is applied where the relevant facts so warrant,

and without discrimination either for or against

F.E.L.A. plaintiffs,

The petitioner's brief herein is distinctive, not so

much for its content (which ix almost entirely irrele-

vant), as for its omissions,

The first conspicuous omission consists of the fail-

ure to discuss the Price decision or even to mention

that case except (a) in passing (pp. 12, 27), (b) to

characterize the case as ‘poorly considered” (p, 32),

and (¢) to quote the dissenting opinion in part (pp.

32-33).

fay as concerned the doctrine of forum non conven-

ated in the opinion of the Court of Appeal (Exhibit |

B, at pp. xv-xvill) as determining whether ‘in this or

any other. case forum non conveniens should be ap-

plied, It is thus in effect conceded by petitioner (as

indeed it has been no conceded at all the earlier stages

of this ease) that if this were other than an F.E.L.A,

case, there would be no question but that forum non

conveniens whould apply,

| As emphasized previously, this is the third attempt,

by the same counsel, to persuade this Court to review

decisions of the higher courts of California in which

dismissals of imported F.E.L.A, cases were held to be

appropriate, Both of the earlier petitions were denied

(Price, 348° U.S, 839; Farmer, 307 U.S. ........ 25 Led,

2d 882), The later of these denials (in Farmer) took

place on April 6, 1970, lens than one year ago,

thone presented here, particularily so

A: tat Cain i sis

No persuasive reason is urged for the reversal of

these prior determinations, It is submitted that the

petition should therefore be summarily denied. |

Dated, Oakland, California,

February 24, 1971,

Respectfully,

Burrow Mason,

Attorney for Respondent

- (Real Party in Interest),

Great Northern Railway Company, —

Onossy, Hzavey, Roacn & May, |

~ ProvgasionaL Corporation,

Of Counsel for Respondent

(Real Party in Interest),

Great Northern Railway Company,

>

seit 8

(Appendix A Follows)

/

/

—_—

Appendix A

The following is a list of close resemblances he-

- tween petitioner's brief herein to and the correspond-

ing brief in Farmer v, Great Northern Ry, Co,, No. -

1229, Detober Term, 1960 (cert, denied, 4-6-70, 25

L.ed2d 532), This list is illustrative, but not all-

erg

1, The topie ‘ Jurisdiction”, at p, 4, and the fol-

lowing discussion, to the end of the first

graph on p, 5, is virtually word-for-w

cine the sreaponding tpi tnd damn

topien! heading on p, 8 is the same as ~~~

p. 7 of the Farmer brief; the dis-

cussion which follows, on pp, 8 down to the center

pela to ay ee ee

‘and the top of p. 8 of tte Farmer brief,

htlentnn Matas ak one it, 12, 13, 14, 15, 16

and the upper two-thirds of p, 17, are identical

with the content of the Farmer brief, commencing —

Ae Oe ee

tinuing to the center of p, 14, |

5. {he topical heading at the top of p. 27 and

all of the folowing discussion extending to the

foot of p, 20, ineluding the second heading on

p. 27, ave an exact reproduction of the ion

of the Farmer brief commencing in the center of

ito]

P ’ ¢ ’

3 yais- 35% gt3. We

a

i: 2

3 ass -etes 33334)

Ari te Wl it i

ee + 3

ali ; wHRY a3

Hane sre TUueE Ԥ

toting

cane, at

on p, 2%

Court,

District

cited

decisions

without

in this

mdi, Hee tained nes

clowe reproductions of the corresponding portions in

the brief of the Farmer case, which was filed by the

name counsel leas than one year ago,

~~ the petitioner's brief herein (hottom.of p. 4 through

"p81 inolusive) ave either verbatim or exceedingly