Respondents Brief in Opposition — Plum v. Tampax, Inc. (No. 177)

-—< a. ed

LIBRARY i JUL 24 196]

OT. 1, Se

a

Tats Seok COU.

AMES ® PRIWNING. Clerk

IN THE

Supreme Court of the United States

October Term, 1961.

No. 177.

DAGNY PLUM,

Petitioner,

Vv.

TAMPAX, INC.,

Respondent.

Ow Petition ror a Writ oF CERTIORARI TO THE SUPREME

Court oF PENNSYLVANIA.

BRIEF FOR THE RESPONDENT IN OPPOSITION.

Henry W. Sawyer, III,

1345 Chestnut Street,

Philadelphia 7, Pennsylvania,

Attorney for Respondent.

International, 711 So. SOth St., Phila. 43, Pa.

INDEX.

oy a NG RE DREN Sy Sa eele pani gl on re nD ]

Ly Lo copes: lpeciupusstesecs oaks et MRR ae Nee eee an |

Rg Se ea a Rice ia an ala 2

gL TELE: dP eric en rE AM een a 7

IIE EE ee ea hr 10

TABLE OF CASES CITED.

Page

Brinkerhoff-Farts Trust & Savings Co. v. Hill, 281 U.S. 673

De re a Sr ia we Kulp a wa na hdd hve Cas 8

Fairchild Engine & Airplane Corp. v. Bellanea Corp., 301 Pa.

Fe ee NON ois eke cwacekaveadessesrs 8

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)... 0. cee, 8

Plum v. Tampax, Inc., 399 Pa. 553, 160 A. 2d 549 (1960) 2.0 1,6

Plum v. Tampax, Inc., 402 Pa. 616, 168 A. 2d 315 (1961) .. 3,6

Southern Kailway Co. v. Maytield, 340 U.S. 1 (1950) 2.0... Ss

Tidal Oil Co. v. Flanagan, 203 U.S. 444 (1924) 200. 8

Universal Adjustment Corp. v. Midland Pank, 281 Mass. 303,

sg Wiese kW Wiodin @ oeh 0 0o-4 4 9

Williams v. North Carolina, 317 U.S. 284 (1942) 0020 e., x

IN THE

Supreme Court of the United States.

OQcronen Tenn, 1961

DAGNY PLUM,

Petitioner,

v.

TAMPAX, INCORPORATED,

Respondent.

Ox Petition ror A Wrir or Certiorant TO THE SUPREME

Court oF PENNSYLVANIA.

BRIEF FOR THE RESPONDENT IN OPPOSITION.

OPINIONS BELOW.

In addition to the opinions noted by the Petitioner (Pet.

14-20), the first opinion of the Supreme Court of Pennsyl-

vania is reported at 399 Pa. 533, 160 A. 2d 549 (1960).

QUESTION PRESENTED.

May the Pennsylvania courts apply their doctrine of

forum non conveniens to dismiss the action of a Danish non-

resident against a foreign corporation nonresident in Penn-

sylvania?

2 Rricf for the Respondent in Opposition

STATEMENT.

Petitioner commenced this action against respondent in

the Court of Common Pleas No, lof Philadelphia County by

writ of foreign attachment, naming certain varnishees, and

filed a complaint in equity for an accounting. Respondent

was not served.

The action was dismissed by the Court of Common

Pleas. On appeal it was remanded by the Supreme Court

of Pennsylvania to the lower court to determine whether the

Pennsylvania doctrine of forum non conveniens applied.

On remand, the lower court dismissed the action on the

ground of forum non conveniens. The Supreme Court of

Pennsylvania affirmed that dismissal as a proper exercise of

judicial discretion. Adopting the findings of fact below, the

Pennsylvania Supreme Court summarized these findings as

follows:

‘¢Plaintiff is a Danish subjeet and a nonresident of

this Country and the defendant is a nonresident foreign

corporation, not registered to do business in Pennsyl-

vania and not maintaining any office listings or em-

ployees or agents in Pennsylvania. The contract under-

lying this suit was entered into in Copenhagen,

Denmark, and is to be performed entirely within the

State of New York. No element of the performance of

the contract has taken place, nor is to take place, in the

Commonwealth of Pennsylvania. The contract pro-

vides that any disagreement between the parties as to

its provisions shall be settled in aceordanee with the

laws of Denmark. It also provides that certain Danish

courts, enumerated therein, shall be fully competent to

pass a judgment on any action relating to the agrec-

ment. All of defendant’s witnesses would be required

to come from jurisdictions other than Pennsylvania.

Its books and records sought to be examined by plaintiff

are physically outside Pennsylvania.

Brief forthe Respondent in Opposition 3

“The following alternative forums are available to

the plaintiffs: (a) The courts of Now York State which

are available to foreign nonresident plaintiffs in actions

against corporations doing business in New York State

with their principal offices therein, or (b) The courts of

Denmark which are available to a Danish subject in an

action against the foreign parent corporation of a

Danish corporation which has agreed to submit to the

jurisdiction of certain Danish courts. The statute of

limitations in New York State on actions on contract

has not run against the plaintiff. In addition, and of

creat weight, plaintiff secks to invoke the equity power

of the courts of Pennsylvania in order to require certain

aets to be done by the defendant outside of Pennsyl-

vania. In light of all of these facts we cannot say that

the trial court abused its diseretion.”? Phaniv. Tampa,

Inc., 402 Pa. 616, 618-19, 168 A. 2d 315, 316-17 (1961).

In her complaint petitiorer had alleged the following,

inter alia, coneerning the underlying controversy :

1. Petitioner entered into a written agreement with

respondent on March 15, 1959.

2. In aceordance with this agreement, a corporation

known as Tampax, Seandinavia A/S (‘*The Danish Com-

pany’’) was created under the laws of Denmark and 25‘

of its outstanding and issued stock was transferred to the

petitioner.

3. The Danish Company created a wholly-owned sub-

sidiary, Tampax Scandinavia A/B (‘*The Swedish Com-

pany’’) anda Norwegian Agency (‘‘The Norwey Agency’’).

4. Respondent controls and supervises the operations

of these ‘‘subsidiaries,’’ determines and approves the pur-

chase and sales price of Tampax, the expenditures and all

business activity of these ‘‘subsidiaries,’’ and it makes up,

supervises‘and approves their balance sheets and profit and

loss statements.

4 Brief for the Respcndent in Opposition

5. Respondent has deprived petitioner of her 2507 of

the profits of the Scandinavian business by reducing the

profit margins of the Danish and Swedish companies.

6. Respondent has not permitted petitioner to examine

certain itemized books, records and agreements pertaining

to its various companies. :

7. The books and reeords of these Seandinavian corpo-

rations and certain other foreign subsidiaries of respondent

are kept and maintained by the respondent in its New York

office.

On the basis of these allegations petitioner had asked,

as relief, that respondent be ordered to:

(1) make ‘‘available at its New York office for ex-

amination and inspection’’ by the petitioner ‘*the books

and reeords which will show all the transactions of:

(a) The Danish company

(b) The Swedish company, and

(c) The Nofway Agency”’

(2) ‘*Exhibit for inspection and examination’’ by

the petitioner, ‘‘through her constituted agents, all

agreements and documents in foree through the years

1955, 1956, 1957 and 1958 providing for the sale by the

respondent and the English company and/or the Euro-

pean company to subsidiary companies distributing

tampax in other countries of the world and including

therein the transactions with the Danish and Swedish

companies ;”’

(3) ‘‘Submit an accounting of the profits earned

by the Danish and Swedish companies ;’’

(4) ‘‘Furnish interim balance sheets and_ profit

and loss statements of the Danish and Swedish com-

panies simultaneously with their preparation and de-

livery’’ to the respondent; and

Brief for the Respondent in Opposition i)

(5) ce Mstablish’ in the petitioner hs appropriate

agreements and documents a 25° share of the Nor-

way Agency.”’

Respondent had) filed) Preliminary Objections to the

complaint raising questions of jurisdictien. These had beer

sustained by the Court of Common Pleas No. lof Philadel-

phia on December 28, 195%

An appeal from this decision had been taken by the

petitioner to the Supreme Court of Pennsylvania. On May

4, 1960, that Court, after a careful consideration of the

doetrine of forum non conveniens had reversed the dec.sion

of the lower court and remanded the case for proceedines

in accordance with its opinion, stating: ;

se. The sole connection the case has with Penn-

svlvania is the fact that a debtor of the defendant could

be served herein, thus making a foreign attachment

possible.

“The witnesses which defendant would be required

to have testify in this case are cither in New York City,

Denmark or other European countries; we ean antici-

pate that it would be costly and inconvenient to have

them appear in Pennsylvania. Similar inconveniences

may arise if the books and reeords which apparently

form a substantial part of the proposed evidence must

be brought here from New York City. Finally, the

plaintiff would have us extend our processes and equity

power beyond our borders, on the strength of assets

reached only by the writ of foreign attachment, to com-

pel an examination of books and records and other rele-

‘ant doeuments in New York City and, assuming jude-

ment in the plaintiff’s favor, to render a deerce giving

plaintiff a 25% share of the Norway agency.

‘Nevertheless, even though we might feel that a

Pennsylvania court is a most inappropriate trial forum,

the ease must be remanded. The court below, not having

the benefit of our present decision, has neither exercised

6 Brief for the Respondent in Opposition

any diseretion in this matter nor made any determina-

tion of whether an alternative forum is available to

the plaintiff. While, on the face of the reeord, it

would appear that either New York or Denmark might

provide an appropriate forum, there is the possibility

of a statute of limitations problem and also a question

of whether the courts of New York State or Denmark

would be willing to hear this ease. Proper application

of the doctrine of Forum Non Conveniens necessitates

that the court below make a finding as to the availability

of other forums and then exercise its diseretion after

considering all the faectors.’? Plum v. Tampax, Inc.,

399 Pa. 553, 562-63, 160 A. 2d 549, 554 (1960).

On November 16, 1960, after further pleadings, argu-

ment and the filing of briefs, the complaint had been dis-

missed by the lower Pennsylvania court on the ground of

forum non conveniens.

On appeal, the Srepreme Court of Pennsylvania on

January 30, 1961 affirmed the dismissal of the Complaint for

the reasons stated above at pages 2 and 3.0 Plum v. Tain-

par, Inc., 402 Pa. 616, 168 A. 2d 315 (1961). Petitioner’s

Petition for Reargument was denied, in a per curiam de-

cision, Without opinion, by the Supreme Court of Pennsyl-

vania on March 28, 1961.

Brief for the Respondent in Opposition 7

ARGUMENT.

The issue presented here is not, as petitioner suggests,

whether she may be exeluded from the Pennsylvania courts

on the ground that she is a subjeet and a resident of Den-

mark. She has not been so exeluded. The issue is whether

the petitioner, just because she is a Danish subject, must

be allowed to bring her suit in any state she chooses—even

one that would exelude, under its rule of forum non econ-

veniens, a United States citizen similarly situated if resi-

dent in another state.

That petitioner was not excluded from the Pennsyl-

vania courts on the ground that. she is a subject and resident

of Denmark is obvious from the opinion of the Supreme

Court of Pennsylvania in affirming the dismissal of peti-

tioner’s suit in Pennsylvania. Considering the petitioner’s

case with great concern for the protection of her rights, that

Court carefully stated its reasons tor affirming dismissal, as

set forth above at pages 2 and 3.

Petitioner’s argument, therefore, would seem to be two-

fold: (1) the first nonresident litigant excluded froma

siate’s courts on the ground of forum non conveniens has

been subjected, simpiy because he is the first, to diserimina-

tion forbidden by the Fourteenth Amendment; (2) even if

the doctrine of forum non convenicns had been established

in a state for fifty years in cases invelving nonresident

United States citizens, a treaty granting to a Danish citizen

‘national treatment 2... with respect to access to. the

courts of justice within the territories of the other party,

in all degrees of jurisdiction... in) pursuit) of) their

rights’? prevents the state court from applying its doctrine

of forum non conveniens where a Danish eitizen is a plain-

tiff. Both arguments are completely untenable.

1. Petitioner’s first argument is based on the assertion

that a writ of foreign attachment may be utilized in Penn-

svilvania whenever the defendant is a nonresident owning

8 Brief for the Respondent in Opposition

property within the Commonwealth and that the Pennsyl-

vania Supreme Court ‘thas at all times in the past held

that nonresidents could invoke the Writ of Foreign Attach-

ment in Pennsylvania’? (Pet. 7). For this proposition she

cites several cases where nonresidents have been allowed

to avail themselves of this method of starting suit. She

cites only one ease,’ however, where the Supreme Court of

Pennsylvania discussed the question of forum non con-

veniens and did not dismiss the suit, but she omits the per-

tinent fact that the court merely noted that the lower court

had not abused its diseretion in refusing to apply the doc-

trine under the facts of that case.

But even if a long line of Pennsylvania Supreme Court

cases involving writs of foreign attachment had specifically

denied the existence of the doctrine of forum non conveniens

in Pennsylvania, petitioner’s argument eould only be that a

state is constitutionally prohibited from applying the doc-

trine of forum non conveniens for the first time to a non-

resident. This is obviously absurd. It is well settled that a

state court may decline jurisdiction by applying the doc-

trine ef forum non conveniens,” and, as Justice Frankfurter

has noted, whether a state decides to accept or reject the

doctrine is strietly a matter of state law? It is equally well

cettled that state courts may overrule their own prior deci-

sions without running afoul ef any constitutional guaranties.

This is true even where parties may have relied to their

detriment on the past decisional law,* a reliance which could

not be and has not been shown in this case.

In this case, moreover, the Pennsylvania Supreme

Court carefully examined (in its first opinion) the doctrine

+. Fairchild Engine & .lirplane Corp. v. Bellanca Corp., 391

Pa. 177, 137 A. 2d 248 (1938).

2. See, e.g., Williams v. North Carolina, 317 U. S. 287, 2M

(1942) and discussion in Gulf Oil Corp. v. Gilbert, 330 U.S. S01,

504 (1947).

3. Southern Railway Co. v. Mayfield, 340 U.S. 1. 4 (1950).

4. See, eg., Tidal Oil Co. v. Flanayan, 203 U.S. 444 (1924);

Brinkerhogf Paris Trust & Savinus Co. v. Hill, 231 U.S. 673 (1930).

%

Brief for the Respondent in Opposition 9

of forum non conveniens before setting forth the relevant

factors and remanding the case for decision on the basis of

these factors, and it carefully reviewed (in its second opin-

ion) the application of the doctrine to this petitioner before

deciding that, as a matter of Pennsylvania law, the lower

court had not abused its diseretion in applying the Pennsyl-

vania doctrine of forum non conveniens in dismissing the

suit. In view of the Pennsylvania state courts’ findings of

fact, it is diffeult to conceive of a case in which a state court

could more aptly exercise its diserction to apply the doe-

trine of forum non conveniens, let alone conecive of this case

giving rise to a question deserving of review by this Court.

2 Petitioner’s second argument is equally untenable.

Despite the fact that her controversy is completely lacking

in contacts with Pennsylvania, she maintains that the treaty

with Denmark prohibits Pennsylvania from applying the

doctrine of forum non conveniens to her, Yet the treaty

defines ‘‘national treatment’? as that accorded in like situa-

tions to ‘*nationals’’ of the United States (Pet. 11). It dues

not say that a Danish citizen’s rights are to rise higher with

respect to access to Pennsylvania courts than those of

citizens of the United States—e.g, California citizens—who

are nonresidents of Pennsylvania.

To accept petitioner’s position would require reading

the treaty to afford a Danish plaintiff the absolute right to

bring suit against any defendant in any state where the

defendant was owed money and quast oe rem jurisdiction

was available generally. Thus a Danish plaintitf could dis-

regard states such as New York, which the Pennsylvania

court found has contacts with the controversy here and

which it found available to the petitioner here, and choose

as his forum states like Pennsylvania, California, Alaska or

Hawaii, with no contacts at all with the controversy.

Precisely this type of argument was made and rejeeted in

Universal Adjustment Corp, v. Midland Bank, 281 Mass.

303, IS4 N. KB. 152 (1933), where the Supreme Judicial Court

said :

10 Brief for the Respondent in Opposition

‘The construction of the treaty for which the plain-

tiff contends would give to Russian corporations who

appear in our courts greater rights and priv:'eges than

are accorded to other litigants in numerous particulars.

(1) It would exonerate them from the rule of forum non

conveniens, applicable to all other parties to suits, in-

cluding individual citizens of Russia. (2) It would give

to them greater privileges than are possessed by cor-

porations of sister States of the Union, which always

are held subject to that rule.’? 184 .N. E. 152, 163.

CONCLUSION.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Henry W. Sawyer, II,

Attorney for Respondent.

July, 1961.