# Brief for the Respondents in Opposition — Curtin v. Superior Court of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0710%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1971 - **Citation:** 401 U.S. 1013 ## Text & 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 ) ‘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 ‘§ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0710%3A2. Public record. Not legal advice.