PIPER AIRCRAFT CO. v.
REYNO, (1981) (a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in
No. 80-848
Argued: October 14, 1981 Decided: December 8, 1981
Respondent, as representative of the estates of several citizens and
residents of Scotland who were killed in an airplane crash in Scotland during
a charter flight, instituted wrongful-death litigation in a California state court
against petitioners, which are the company that manufactured the plane in
Pennsylvania and the company that manufactured the plane's propellers in
Ohio. At the time of the crash the plane was registered in Great Britain and
was owned and operated by companies organized in the United Kingdom.
The pilot and all of the decedents' heirs and next of kin were Scottish
subjects and citizens, and the investigation of the accident was conducted
by British authorities. Respondent sought to recover from petitioners on the
basis of negligence or strict liability (not recognized by Scottish law), and
admitted that the action was filed in the United States because its laws
regarding liability, capacity to sue, and damages are more favorable to
respondent's position than those of Scotland. On petitioners' motion, the
action was removed to a Federal District Court in California and was then
transferred to the United States District Court for the Middle District of
Pennsylvania, pursuant to 28 U.S.C. 1404(a). The District Court granted
petitioners' motion to dismiss the action on the ground of forum non
conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U.S.
501 , and analyzing the "private interest factors" affecting the litigants'
convenience and the "public interest factors" affecting the forum's
convenience, as set forth in Gilbert, the District Court concluded that
Scotland was the appropriate forum. However, the Court of Appeals
reversed, holding that the District Court had abused its discretion in
conducting the Gilbert analysis and that, in any event, dismissal is
automatically barred where [454 U.S. 235, 236] the law of the alternative
forum is less favorable to the plaintiff than the law of the forum chosen by
the plaintiff.
Held:
1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non
conveniens merely by showing that the substantive law that would be
applied in the alternative forum is less favorable to the plaintiffs than that of
the chosen forum. The possibility of a change in substantive law should
ordinarily not be given conclusive or even substantial weight in the forum
non conveniens inquiry. Canada Malting Co. v. Paterson Steamships,
Ltd., 285 U.S. 413 . Pp. 247-255.
the plaintiff's chosen forum imposes a heavy burden on the defendant or the
court, and where the plaintiff is unable to offer any specific reasons of
convenience supporting his choice. If substantial weight were given to the
possibility of an unfavorable change in law, however, dismissal might be
barred even where trial in the chosen forum was plainly inconvenient, and
the forum non conveniens doctrine would become virtually useless. Such an
approach not only would be inconsistent with the purpose of the forum non
conveniens doctrine, but also would pose substantial practical problems,
requiring that trial courts determine complex problems in conflict of laws
and comparative law, and increasing the flow into American courts of
litigation by foreign plaintiffs against American manufacturers. Pp. 248-252.
(b) Nor may an analogy be drawn between forum non conveniens dismissals
and transfers between federal courts pursuant to 28 U.S.C. 1404(a), which
was construed in Van Dusen v. Barrack, 376 U.S. 612 , as precluding a
transfer if it resulted in a change in the applicable law. The statute was
enacted to permit change of venue between federal courts, and although it
was drafted in accordance with the doctrine of forum non conveniens, it was
intended to be a revision rather than a codification of the common law.
District courts were given more discretion to transfer under 1404(a) than
they had to dismiss on grounds of forum non conveniens. Van Dusen v.
Barrack, supra, distinguished. Pp. 253-254.
2. The District Court properly decided that the presumption in favor of the
plaintiff's forum choice applied with less than maximum force when the
plaintiff or (as here) the real parties in interest are foreign. When the plaintiff
has chosen the home forum, it is reasonable to assume that the choice is
convenient; but when the plaintiff or real parties in interest are foreign, this
assumption is much less reasonable and the plaintiff's choice deserves less
deference. Pp. 255-256. [454 U.S. 235, 237]
3. The forum non conveniens determination is committed to the trial court's
sound discretion and may be reversed only when there has been a clear
abuse of discretion. Here, the District Court did not abuse its discretion in
weighing the private and public interests under the Gilbert analysis and
thereby determining that the trial should be held in Scotland. Pp. 257-261.
(a) In analyzing the private interest factors, the District Court did not act
unreasonably in concluding that fewer evidentiary problems would be posed
if the trial were held in Scotland, a large proportion of the relevant evidence
being located there. The District Court also correctly concluded that the
problems posed by the petitioners' inability to implead potential Scottish
third-party defendants - the pilot's estate, the plane's owners, and the
charter company - supported holding the trial in Scotland. Pp. 257-259.
1
(b) The District Court's review of the factors relating to the public interest
was also reasonable. Even aside from the question whether Scottish law
might be applicable in part, all other public interest factors favor trial in
Scotland, which has a very strong interest in this litigation. The accident
occurred there, all of the decedents were Scottish, and apart from
petitioners, all potential parties are either Scottish or English. As to
respondent's argument that American citizens have an interest in ensuring
that American manufacturers are deterred from producing defective
products and that additional deterrence might be obtained by trial in the
United States where they could be sued on the basis of both negligence and
strict liability, any incremental deterrence from trial in an American court is
likely to be insignificant and is not sufficient to justify the enormous
commitment of judicial time and resources that would be required. Pp. 259-
261.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501
The questions are whether the United States District Court has inherent
power to dismiss a suit pursuant to the doctrine of forum non conveniens
and, if so, whether that power was abused in this case.
The respondent-plaintiff brought this action in the Southern District of New
York, but resides at Lynchburg, Virginia, where he operated a public
warehouse. He alleges that the petitioner-defendant, in violation of the
ordinances of Lynchburg, so carelessly handled a delivery of gasoline to his
warehouse tanks and pumps as to cause an explosion and fire which
consumed the warehouse building to his damage of $41,889.10, destroyed
merchandise and fixtures to his damage of $3,602.40, caused injury to his
business and profits of $20,038.27, and burned the property of customers in
his custody under warehousing agreements to the extent of $300,000. He
asks judgment of $365,529.77 with costs and disbursements, and interest
from the date of fire. The action clearly is one in tort.
The petitioner-defendant is a corporation organized under the laws of
Pennsylvania, qualified to do business in both Virginia and New York, and it
has designated officials of each state as agents to receive service of process.
When sued in New York, the defendant, invoking the doctrine of forum non
conveniens, claimed that the appropriate place for trial is Virginia where the
plaintiff lives and defendant does business, where all events in litigation took
place, where most of the witnesses reside, and where both state and federal
courts are available to plaintiff and are able to obtain jurisdiction of the
defendant.
The case, on its merits, involves no federal question and was brought in the
United States District Court solely because of diversity in citizenship of the
parties. Because of the charact r of its jurisdiction and the holdings of and
under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188,
114A.L.R. 1487, the District Court considered that the law of New York as to
forum non conveniens applied and that it required the case to be left to
Virginia courts. 1 It therefore dismissed.
The Circuit Court of Appeals disagreed as to the applicability of New York
law, took a restrictive view of the application of the entire doctrine in federal
courts and, one judge dissenting, reversed. 2 The case is here on
certiorari. 328 U.S. 830, 66 S.Ct. 1123.
It is conceded that the venue statutes of the United States permitted the
plaintiff to commence his action in the Southern District of New York and
empower that court to entertain it. 3 But that does not settle the question
whether it must do so. Indeed the doctrine of forum non conveniens can
never apply if there is absence of jurisdiction or mistake of venue.
This Court, in one form of words or another, has repeatedly recognized the
existence of the power to decline jurisdiction in exceptional circumstances.
As formulated by Mr. Justice Brandeis the rule is: 'Obviously, the proposition
that a court having jurisdiction must exercise it, is not universally true; else
the admiralty court could never decline jurisdiction on the ground that the
litigation is between foreigners. Nor is it true of courts administering other
systems of our law. Courts of equity and of law also occasionally decline, in
the interest of justice, to exercise jurisdiction, where the suit is between
aliens or nonresidents, or where for kindred reasons the litigation can more
appropriately be conducted in a foreign tribunal.' Canada Malting Co., Ltd., v.
Paterson Steamships, Ltd., 285 U.S. 413 422, 423, 52 S.Ct. 413, 415, 76
L.Ed. 837.
We later expressly said that a state court 'may in appropriate cases apply
the doctrine of forum non conveniens.' Broderick v. Rosner, 294 U.S. 629,
643, 55 S.Ct. 589, 592, 79 l.Ed. 1100, 100 A.L.R. 1133; Williams v. State of
North Carolina, 317 U.S. 287, 294, n. 5, 63 S.Ct. 207, 87 L.Ed. 279,
143 A.L.R. 1273. Even where federal rights binding on state courts under the
Constitution are sought to be adjudged, this Court has sustained state courts
in a refusal to entertain a litigation between a nonresident and a foreign
corporation or between two foreign corporations. Douglas v. New York, N.H.
& H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747; Anglo-American
Provision Co. v. Davis Provision Co. No. 1, 191 U.S. 373, 24 S.Ct. 92, 48 L.Ed.
225. It has held the use of an inappropriate forum in one case an
unconstitutional burden on interstate commerce. Davis v. Farmers' Co-
operative Equity Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996. On
substantially forum non conveniens grounds we have required federal courts
to relinquish decision of cases within their jurisdiction where the court would
2
have to participate in the administrative policy of a state. Railroad
Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 61 S.Ct. 343,
85 L.Ed. 358; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed.
1424; but cf. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9.
And most recently we decided Williams v. Green Bay & Western R. Co., 326
U.S. 549, 66 S.Ct. 284, in which the Court, without questioning the validity of
the doctrine held it had been applied in that case without justification. 4
It is true that in cases under the Federal Employers' Liability Act, 45 U.S.C.A.
51 et seq., we have held that plaintiff's choice of a forum cannot be
defeated on the basis of forum non conveniens. But this was because the
special venue act under which those cases are brought was believed to
require it. Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed.
28, 136 A.L.R. 1222; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct.
827, 86 L.Ed. 1129, 146 A.L.R. 1104. Those decisions do not purport to
modify the doctrine as to other cases governed by the general venue
statutes.
But the court below says that 'The Kepner case * * * warned against refusal
of jurisdiction in a particular case controlled by congressional act; here the
only difference is that congressional act, plus judicial interpretation (under
the Neirbo case), spells out the result.' 153 F.2d at page 885. The Federal
Employers' Liability Act, however, which controlled decision in the Kepner
case, specifically provides where venue may be had in any suit on a cause of
action arising under that statute. What the court below refers to as
'congressional act, plus judicial interpretation,' is the general statute of
venue in diversity suits, plus our decision that it gives the defendant 'a
personal privilege respecting the venue, or place of suit, which he may
assert, or may waive, at his election,' Neirbo Co. v. Bethlehem Shipbuilding
Corp., Ltd., 308 U.S. 165, 168, 60 S.Ct. 153, 154, 84 L.Ed. 167, 128 A.L.R.
1437. The Federal Employers' Liability Act, as interpreted by Kepner,
increases the number of places where the defendant may be sued and
makes him accept the plaintiff's choice. The Neirbo case is only a declaration
that if the defendant, by filing consent to be sued, waives its privilege to be
sued at its place of residence, it may be sued in the federal courts at the
place where it has consented to be sued. But the general venue statute plus
the Neirbo interpretation do not add up to a declaration that the court must
respect the choice of the plaintiff, no matter what the type of suit or issues
involved. The two taken together mean only that the defendant may consent
to be sued, and it is proper for the federal court to take jurisdiction, not that
the plaintiff's choice cannot be questioned. The defendant's consent to be
sued extends only to give the court jurisdiction of the person; it assumes
that the court, having the parties before it, will apply all the applicable law,
including, in those cases where it is appropriate, its discretionary judgment
as to whether the suit should be entertained. In all cases in which the
doctrine of forum non conveniens comes into play, it presupposes at least
two forums in which the defendant is amenable to process; the doctrine
furnishes criteria for choice between them.
The principle of forum non conveniens is simply that a court may resist
imposition upon its jurisdiction even when jurisdiction is authorized by the
letter of a general venue statute. These statutes are drawn with a necessary
generality and usually give a plaintiff a choice of courts, so that he may be
quite sure of some place in which to pursue his remedy. But the open door
may admit those who seek not simply justice but perhaps justice blended
with some harassment. A plaintiff sometimes is under temptation to resort to
a strategy of f rcing the trial at a most inconvenient place for an adversary,
even at some inconvenience to himself.
Many of the states have met misuse of venue by investing courts with a
discretion to change the place of trial on various grounds, such as the
convenience of witnesses and the ends of justice. 5 The federal law contains
no such express criteria to guide the district court in exercising its power.
But the problem is a very old one affecting the administration of the courts
as well as the rights of litigants, and both in England and in this country the
common law worked out techniques and criteria for dealing with it. 6
Wisely, it has not been attempted to catalogue the circumstances which will
justify or require either grant or denial of remedy. The doctrine leaves much
to the discretion of the court to which plaintiff resorts, and experience has
not shown a judicial tendency to renounce one's own jurisdiction so strong
as to result in many abuses. 7
If the combination and weight of factors requisite to given results are difficult
to forecast or state, those to be considered are not difficult to name. An
interest to be considered, and the one likely to be most pressed, is the
private interest of the litigant. Important considerations are the relative ease
of access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive. There may also be questions as to the
enforcibility of a judgment if one is obtained. The court will weigh relative
advantages and obstacles to fair trial. It is often said that the plaintiff may
not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the
defendant by inflicting upon him expense or trouble not necessary to his
own right to pursue his remedy. 8 But unless the balance is strongly in favor
of the defendant, the plaintiff's choice of forum should rarely be disturbed.
3
Factors of public interest also have place in applying the doctrine.
Administrative difficulties follow for courts when litigation is piled up in
congested centers instead of being handled at its origin. Jury duty is a
burden that ought not to be imposed upon the people of a community which
has no relation to the litigation. In cases which touch the affairs of many
persons, there is reason for holding the trial in their view and reach rather
than in remote parts of the country where they can learn of it by report only.
There is a local interest in having localized controversies decided at home.
There is an appropriateness, too, in having the trial of a diversity case in a
forum that is at home with the state law that must govern the case, rather
than having a court in some other forum untangle problems in conflict of
laws, and in law foreign to itself.
The law of New York as to the discretion of a court to apply the doctrine of
forum non conveniens, and as to the standards that guide discretion is, so
far as here involved, the same as the federal rule. Murnan v. Wabash Ry. Co.,
246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Wedemann v. United States Trus
Co. of New York, 258 N.Y. 315, 179 N.E. 712, 79 A.L.R. 1320; see Gregonis v.
Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R.
1. It would not be profitable, therefore, to pursue inquiry as to the source
from which our rule must flow.
Turning to the question whether this is one of those rather rare cases where
the doctrine should be applied, we look first to the interests of the litigants.
The plaintiff himself is not a resident of New York, nor did any event
connected with the case take place there, nor does any witness with the
possible exception of experts live there. No one connected with that side of
the case save counsel for the plaintiff resides there, and he has candidly told
us that he was retained by insurance companies interested presumably
because of subrogation. His affidavits and argument are devoted to
controvering claims as to defendant's inconvenience rather than to showing
that the present forum serves any convenience of his own, with one
exception. The only justification for trial in New York advanced here is one
rejected by the district court and is set forth in the brief as follows: 'This
Court can readily realize that an action of this type, involving as it does a
claim for damages in an amount close to $400,000, is one which may
stagger the imagination of a local jury which is surely unaccustomed to
dealing with amounts of such a nature. Furthermore, removed from
Lynchburg, the respondent will have an opportunity to try this case free from
local influences and preconceived notions which make it difficult to procure a
jury which has no previous knowledge of any of the facts herein.'
This unproven premise that jurors of New York live on terms of intimacy with
$400,000 transactions is not an assumption we easily make. Nor can we
assume that a jury from Lynchburg and vicinity would be 'staggered' by
contemplating the value of a warehouse building that stood in their region,
or of merchandise and fixtures such as were used there, nor are they likely
to be staggered by the value of chattels which the people of that
neighborhood put in storage. It is a strange argument on behalf of a Virginia
plaintiff that the community which gave him patronage to make his business
valuable is not capable of furnishing jurors who know the value of the goods
they store, the building they are stored in, or the business their patronage
creates. And there is no specification of any local influence, other than
accurate knowledge of local conditiions, that would make a fair trial
improbable. The net of this is that we cannot say the District Court was
bound to entertain a provincial fear of the provincialism of a Virginia jury.
That leaves the Virginia plaintiff without even a suggested reason for
transporting this suit to New York.
Defendant points out that not only the plaintiff, but every person who
participated in the acts charged to be negligent, resides in or near
Lynchburg. It also claims a need to interplead an alleged independent
contractor which made the delivery of the gasoline and which is a Virginia
corporation domiciled in Lynchburg, that it cannot interplead in New York.
There also are approximately 350 persons residing in and around Lynchburg
who stored with plaintiff the goods for the damage to which he seeks to
recover. The extent to which they have left the community since the fire and
the number of them who will actually be needed is in dispute. The complaint
alleges that defendant's conduct violated Lynchburg ordinances. Conditions
are said to require proof by firemen and by many others. The learned and
experienced trial judge was not unaware that litigants generally manage to
try their cases with fewer witnesses than they predict in such motions as
this. But he was justified in concluding that this trial is likely to be long and
to involve calling many witnesses, and that Lynchburg, some 400 miles from
New York, is the source of all proofs for either side with possible exception of
e perts. Certainly to fix the place of trial at a point where litigants cannot
compel personal attendance and may be forced to try their cases on
deposition, is to create a condition not satisfactory to court, jury or most
litigants. Nor is it necessarily cured by the statement of plaintiff's counsel
that he will see to getting many of the witnesses to the trial and that some
of them 'would be delighted to come to New York to testify.' There may be
circumstances where such a proposal should be given weight. In others the
offer may not turn out to be as generous as defendant or court might
suppose it to be. Such matters are for the District Court to decide in exercise
of a sound discretion.
The court likewise could well have concluded that the task of the trial court
would be simplified by trial in Virginia. If trial was in a state court, it could
apply its own law to events occurring there. If in federal court by reason of
4
diversity of citizenship, the court would apply the law of its own state in
which it is likely to be experienced. The course of adjudication in New York
federal court might be beset with conflict of laws problems all avoided if the
case is litigated in Virginia where it arose.
We are convinced that the District Court did not exceed its powers or the
bounds of its discretion in dismissing plaintiff's complaint and remitting him
to the courts of his own community. The Circuit Court of Appeals took too
restrictive a view of the doctrine as approved by this Court. Its judgment is
reversed.
Reversed.
Klaus LUECK; Martin G. Alexander; Maree Gray; Ian Gray; Petra
Gray; Elle Gray; Peter Roberts; William McGrory; Murray Brown;
Dean L. Mason; John Austin; Shayne A. Blake; David S. Green;
Robyn Keall, individually and as special representative of the Estate
of Jonathan P. Keall; Jill Dixon, individually and as special
representative of the Estate of Reginald Dixon; Barbara White,
individually and as special representative of the Estate of David
John White; Lucille White; Maxwell White; Paul John Cameron,
Plaintiffs-Appellants, v. SUNDSTRAND CORPORATION; Honeywell
Corporation; Hydraulic Units, Inc., dba Dowty Aerospace; Messier-
Dowty International; Dehavilland, Inc., Defendants-Appellees.
99-15961No.
Decided: January 8, 2001
BACKGROUNDI.
Flight 703 and the Ensuing InvestigationA.
The aircraft crashed into the ground, killing one member of the flight crew
and three passengers and injuring all others on board. Although the
aircraft's GPWS emitted an alarm four seconds before the aircraft hit the
ground, the crew was unable to avoid the accident. While the flight crew
focused on lowering the landing gear, the aircraft flew toward the hilly
terrain leading into Palmerston North. The landing gear of the aircraft failed
to lower hydraulically, so the pilot and co-pilot were forced to lower the
landing gear manually. As the flight approached Palmerston North, the
flight crew prepared for landing. All of the passengers were citizens of New
Zealand, except for one who was a citizen of the United States. The
commuter flight carried 21 persons-three crew members and 18 passengers.
On June 5, 1995, Ansett New Zealand (Ansett) Flight 703 took off from
Auckland with an intended destination of Palmerston North, New Zealand.
The GPWS was manufactured by defendant Sundstrand Corporation in
Washington State.The aircraft, a de Havilland DHC-8, was manufactured in
Canada by defendant de Havilland, a Canadian corporation and a division of
Boeing of Canada, Ltd., a subsidiary of The Boeing Company. 1 The GPWS
operated through the use of a radio altimeter, which was manufacturedThe
GPWS was purchased by Ansett and installed on the aircraft by de Havilland.
by defendant Honeywell in Arizona.
The Commission Report ultimately identified the following causal factors of
the accident:New Zealand's Transport Accident Investigation Commission
(the Commission) investigated the causes and circumstances of the
accident.
the Captain not ensuring the aircraft intercepted and maintained the
approach profile during the conduct of the non-precision instrument
approach, the Captain's perseverance with his decision to get the
undercarriage lowered without discontinuing the instrument approach, the
Captain's distraction from the primary task of flying the aircraft safely during
the First Officer's endeavours to correct an undercarriage malfunction, the
First Officer not executing a Quick Reference Handbook procedure in the
correct sequence, and the shortness of the [GPWS] warning.
The FAA investigation was conducted in Washington and Arizona. Because
the GPWS and radio altimeter were manufactured in the United States,
Canada then asked the FAA to examine the performance of these
components. The Commission asked Canada's transportation ministry to
look into the performance of the GPWS and radio altimeter. The
Commission could not establish the cause of the failure of the GPWS to give
an earlier warning, but speculated that the only reliable scenario was
related to a loss of radio altimeter tracking. However, the Commission
concluded that the GPWS warning was insufficient for the aircraft to be
extricated from its perilous position. The Commission found that the
GPWS had been maintained properly by Ansett and that the radio altimeter
retrieved from the crash site was operating normally. The Commission
evaluated the aircraft's radio altimeter and GPWS. Factory simulations on the
GPWS indicated that at least 12 additional seconds of warning should have
been provided by the system.
New Zealand's Accident Compensation SystemB.
In 1972, the New Zealand legislature passed the Accident Compensation Act
(the Act), amended in 1982, 1992, and 1998, which provides coverage, on
5
a no-fault basis, for those who suffer personal injury arising from accidents. 2
Medical expenses continue to be covered.54). Id. at 1075 (citing 1992 Act,
Instead, the Act now provides for a quarterly allowance based on the
degree of the claimant's disability. Id. at 1074-75. But the 1992
amendments eliminated the lump-sum payments for non-economic losses.
39(1), 48, 70). Id. at 1074 (citing 1992 Act, Under the 1992 Act, the
compensation for lost earnings remains at 80 percent of the claimant's
former salary, but is capped at $1,179 (N.Z.) per week. Richard S. Miller, An
Analysis and Critique of the 1992 Changes to New Zealand's Accident
Compensation Scheme, 52 Md. L.Rev. 1070, 1070 (1993) (citing 1982 Act,
Parts V-VII). Under the 1972 Act, those benefits include[ ][all] medical and
rehabilitative expenses, compensation for eighty percent of lost earnings as
long as disability continued, and lump-sum payments of up to $27,000 (N.Z.)
for non-economic losses 14 (N.Z.), and instead provides for benefits from
the Accident Rehabilitation and Compensation Insurance Corporation
(ACC). 27 (N.Z.), Accident Rehabilitation and Compensation Insurance Act,
1992, 5 (N.Z.), Accident Compensation Act, 1982, The Act bars civil
claims for damages, Accident Compensation Act, 1972,
Id. at 1072 n. 15 (citing Auckland City Council v. Blundell, 1 N.Z.L.R. 732, 739
(1986); Donselaar v. Donselaar, 1 N.Z.L.R. 97, 104-07 (1982)). The Act also
permits suits for punitive or exemplary damages. 4(1), 8(3)). Id. at 1072
(citing 1992 Act, Under the 1992 Act, plaintiffs may sue for damages for
mental distress not resulting from physical injury.
Plaintiffs' Efforts to Be Compensated for Their LossesC.
Their claims against Ansett fo Plaintiffs are also pursuing a lawsuit against
Ansett in New Zealand. All but two of the plaintiffs filed claims with the
ACC and have received compensation, alleging negligence and requesting
exemplary damages. The families of those who were killed, Keall, Dixon,
and White, are also plaintiffs. Plaintiffs Lueck, Alexander, Maree Gray, Ian
Gray, Petra Gray, Elle Gray, Roberts, McGrory, Brown, Mason, Austin, Blake,
Green, and Cameron were all injured in the crash. The trial court judge's
decision was affirmed by the New Zealand Court of Appeal in McGrory.r
compensatory damages were dismissed by the court as statutorily barred by
New Zealand's accident compensation scheme, see McGrory v. Ansett New
Zealand Ltd., 2 N.Z.L.R. 328 (1998), but their claims against Ansett for
exemplary damages were allowed to go forward, as these claims are not
barred by the Act, see id.
Thus, all of the remaining plaintiffs are New Zealand citizens. The only
American citizen onboard the flight, who was the only American plaintiff in
this suit, settled his claims after Plaintiffs filed their notice of appeal to this
Court. The district court granted the motion and dismissed the action.
Defendants moved to dismiss the action, arguing that New Zealand provides
a remedy for Plaintiffs' injuries and is a more convenient location for the suit.
They did not allege gross negligence or seek punitive damages. Plaintiffs
brought suit against Defendants in federal district court for the District of
Arizona, alleging strict liability, negligence, and breach of warranty. With
the exception of defendant deHavilland, all are American corporations. The
defendants in this case are each responsible for manufacturing parts of the
landing gear or the GPWS of the deHavilland aircraft.
DISCUSSIONII.
Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d 1078, 1090 (9th
Cir.1999). We have also held that a district court must make a choice of law
determination in considering whether to dismiss the action. Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 254 n. 22, 257, 102 S.Ct. 252, 70 L.Ed.2d 419
(1981); Gulf Oil, 330 U.S. at 507-09, 67 S.Ct. 839; Ceramic Corp. of America
v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir.1993); Lockman Found. v.
Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir.1991). In
dismissing an action on forum non conveniens grounds the court must
examine: (1) whether an adequate alternative forum exists, and (2) whether
the balance of private and public interest factors favors dismissal. Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). A
district court has discretion to decline to exercise jurisdiction in a case where
litigation in a foreign forum would be more convenient for the parties.
The Supreme Court has held that, where the plaintiff is a United States
citizen, the defendant must satisfy a heavy burden of proof:Cheng v. Boeing
Co., 708 F.2d 1406, 1411 (9th Cir.1983). The defendant bears the burden
of proving the existence of an adequate alternative forum.
When the plaintiff is foreign, however, the assumption is much less
reasonable.When the home forum has been chosen, it is reasonable to
assume that this choice is convenient. plaintiff's choice of forum is entitled
to greater deference when the plaintiff has chosen the home forum [A]
Id. But, as this court stated recently in Ravelo Monegro v. Rosa, 211 F.3d
509, 514 (9th Cir.2000), petition for cert. filed, 69 U.S.L.W. 3346 (Nov. 7,
2000) (No. 00-755), less deference is not the same thing as no deference.
Therefore, the Court held, a foreign plaintiff's choice deserves less
deference. Piper Aircraft, 454 U.S. at 256, 102 S.Ct. 252 (citation omitted).
Creative Tech., 61 F.3d at 699; see also Ceramic Corp., 1 F.3d at 949. The
district court's decision may be reversed only when there has been a clear
abuse of discretion; where the court has considered all relevant public and
private interest factors, and where its balancing of these factors is
6
reasonable, its decision deserves substantial deference. Gemini Capital
Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir.1998); Creative
Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 699 (9th Cir.1995). A forum
non conveniens determination is committed to the sound discretion of the
district court.
Adequate Alternative ForumA.
The Supreme Court has held thatThe first requirement for a forum non
conveniens dismissal is that an adequate alternative forum is available to
the plaintiff. This threshold test is met here because Defendants have
indicated that they are amenable to service of process in New Zealand.
Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252; Contact Lumber Co. v.
P.T. Moges Shipping Co., 918 F.2d 1446, 1449 (9th Cir.1990). an alternative
forum ordinarily exists when the defendant is amenable to service of process
in the foreign forum.
The district court did not abuse its discretion in finding that an adequate
remedy is available in New Zealand. The district court was not required to
ask whether Plaintiffs could bring this lawsuit in New Zealand, but rather,
whether New Zealand offers a remedy for their losses. Plaintiffs' argument,
however, relies on a misdirected forum non conveniens inquiry. Plaintiffs
argue that New Zealand offers no remedy for their losses because it has
legislated tort law out of existence.
Lockman Found., 930 F.2d at 768 (quoting Piper Aircraft, 454 U.S. at 254,
102 S.Ct. 252); see also Ceramic Corp., 1 F.3d at 949. However, it is only in
rare circumstances where the remedy provided by the alternative forum
is so clearly inadequate or unsatisfactory, that it is no remedy at all, that
this requirement is not met. Cheng, 708 F.2d at 1411. As with the other
requirements of a forum non conveniens dismissal, the burden of showing
the existence of an adequate alternative forum is the defendant's. The
foreign forum must provide the plaintiff with some remedy for his wrong in
order for the alternative forum to be adequate.
Piper Aircraft, 454 U.S. at 239, 102 S.Ct. 252. An inquiry into the causes of
the crash found no evidence that the equipment was defective and
concluded that pilot error may have caused the accident as the pilot had
little experience and was flying the aircraft at a lower altitude than that
recommended in the airline's operations manual. The defendants in the
American suit were the American manufacturers of the propeller and the
aircraft. Relatives of the decedents had filed suit against the owners of the
aircraft and air taxi service in the United Kingdom. She was not related to
any of the passengers. The plaintiff was the administratrix, appointed by a
California probate court, of the estates of the five passengers. The victims
of the accident were Scottish, and the companies which owned and operated
the aircraft and the air taxi service were incorporated in the United Kingdom.
There, the suit stemmed from the crash of a chartered aircraft in Scotland.
In Piper Aircraft, the Supreme Court held that a foreign country was not an
inadequate forum merely because its laws offered the plaintiff a lesser
remedy than he could expect to receive in the United States court system.
Id. Plaintiff brought suit in the United States because its laws regarding
liability, capacity to sue, and damages [were] more favorable to her position
than are those of Scotland. Id. at 240, 102 S.Ct. 252. Furthermore,
Scottish law only permitted wrongful death actions when brought by a
decedent's relatives, and, even then, the relatives could only recover for the
loss of support and society of the decedent. Plaintiff brought suit against
the defendants in the United States because Scottish law did not recognize
strict liability in tort.
Id. at 251, 102 S.Ct. 252. The Supreme Court also noted that such a ruling
would have the negative effect of requiring district courts to interpret the
law of foreign jurisdictions; this outcome is diametrically opposed to another
of the doctrine's purposes, as it was designed in part to help courts avoid
conducting complex exercises in comparative law. Id. at 249-51, 102 S.Ct.
252. The Court stated that the Circuit's ruling was contrary to the main
purpose of the forum non conveniens doctrine: convenience. Furthermore,
by allowing dismissal to be avoided solely by showing the foreign forum's
law was less favorable, the Third Circuit had failed to consider the whole
picture and weigh the numerous factors which had previously been held to
underlie the forum non conveniens analysis. Because plaintiffs usually
bring suit in the forum with the most favorable law, the Supreme Court
found, the doctrine would be severely undercut by such a bright-line rule.
The Supreme Court reversed the Third Circuit, which had found that, where
the law of the purported alternative forum is less favorable to the plaintiff,
dismissal on forum non conveniens grounds is inappropriate.
A jury trial in the United States on these facts could yield significantly
higher awards to Plaintiffs than the compensation they will receive from the
ACC. Under Piper Aircraft, however, it is clear that this argument fails. In this
case, Plaintiffs' attorney has candidly admitted that the impetus for the
lawsuit is money: United States law offers Plaintiffs a greater potential
remedy for their losses than New Zealand law.
The effect of Piper Aircraft is that a foreign forum will be deemed adequate
unless i Although New Zealand law does not permit Plaintiffs to maintain
this exact suit, New Zealand, through its no-fault accident compensation
scheme, has provided and continues to provide a remedy for Plaintiffs'
losses. Plaintiffs do not dispute that they can file and have filed claims with
7
the ACC for these losses; nor do they dispute that they have received
compensation from the ACC for these losses. According to the complaint,
the losses for which Plaintiffs seek compensation are their physical injuries
sustained in the accident and the resulting loss of earnings. A New Zealand
remedy is unquestionably available here. t offers no practical remedy for
the plaintiff's complained of wrong. 3 Cf. Jeha v. Arabian American Oil Co.,
751 F.Supp. 122, 125 (S.D.Tex.1990) (holding that a quasi-judicial special
commission, made up of a judge, a legal adviser, a university professor,
and two physicians, and designated to handle medical malpractice claims in
Saudi Arabia, constitutes an adequate alternative forum), aff'd 936 F.2d 569
(5th Cir.1991) (unpublished table decision). The forum non conveniens
analysis does not look to the precise source of the plaintiff's remedy, so we
will not require the alternative forum to offer a judicial remedy. Plaintiffs
have not shown that this type of administrative remedy is so inadequate
that it is tantamount to no remedy at all.
We agree with these other courts, which have found New Zealand's
administrative remedy to be adequate. The Illinois appellate court found
that the parents' wrongful death action could be dismissed on the basis of
forum non conveniens because the parents could receive compensation
under the Act. See id. at 1045, 88 Ill.Dec. 203, 478 N.E.2d 518 (Although
the amount of compensation payable may not equal the damages plaintiffs
could recover in an action brought under the Illinois Wrongful Death Act, that
possibility does not render New Zealand an unavailable forum.). Id. inexpensive.(7)
Stonnell v. Int'l Harvester Co., 132 Ill.App.3d 1043, 88 Ill.Dec. 203, 478
N.E.2d 518 (1985), involved the death in New Zealand of a 17-year-old New
Zealand citizen who had been using a tractor manufactured in Great Britain.
That court clearly held that [r]elegation of a claimant to an administrative
forum for compensation [does] not, in and of itself, preclude dismissal based
on forum non conveniens. The district court in that case found that those
plaintiffs who were residents of New Zealand and had their implant
performed in that country had an adequate remedy in New Zealand if they
could either use the court system or pursue administrative remedies under
the Act. 887 F.Supp. at 1475. In re Silicone Gel Breast Implants Products
Liability Litigation, 887 F.Supp. 1469 (N.D.Ala.1995), involved wrongful death
and personal injury actions against breast-implant manufacturers. Lastly,
we observe that several other courts have found New Zealand's accident
compensation system to provide an adequate alternative remedy.
The Balance of Public and Private FactorsB.
Lockman Found., 930 F.2d at 767 (quoting Piper Aircraft, 454 U.S. at 255 n.
23, 102 S.Ct. 252).[I]f the balance of conveniences suggests that trial in
the chosen forum would be unnecessarily burdensome for the defendant or
the court, dismissal is proper. Gemini Capital, 150 F.3d at 1091. We have
further held that a foreign plaintiff's choice of forum merits less deference
than that of a plaintiff who resides in the selected forum, and the showing
required for dismissal is reduced. Gulf Oil, 330 U.S. at 509, 67 S.Ct. 839.
Ordinarily, a plaintiff's choice of forum will not be disturbed unless the
private interest and the public interest factors strongly favor trial in a
foreign country.
The Private Interest Factors1.
Courts consider the following private interest factors:
the residence of the parties and the witnesses;(1)
the forum's convenience to the litigants;(2)
access to physical evidence and other sources of proof;(3)
whether unwilling witnesses can be compelled to testify;(4)
the cost of bringing witnesses to trial;(5)
the enforceability of the judgment; and(6)
all other practical problems that make trial of a case easy, expeditious and
Id.Id. It should consider them together in arriving at a balanced conclusion.
The district court should look to any or all of the above factors which are
relevant to the case before it, giving appropriate weight to each. Gulf Oil,
330 U.S. at 508, 67 S.Ct. 839; Contact Lumber, 918 F.2d at 1449.
Defendants, on the other hand, focus on the evidence relating to the crash
itself and Plaintiffs' ongoing medical care, so they contend that New Zealand
is a more convenient forum. Plaintiffs focus on the evidence relating to the
testing of the radio altimeter and GPWS, which occurred in the United
States, so they argue Arizona is a more convenient forum. Plaintiffs and
Defendants each find a different forum to be more convenient because each
party focuses on different evidence and witnesses.
Documents and witnesses regarding the maintenance of the GPWS, they
argue, are not necessary because this is not in issue.Specifically, Plaintiffs
reference: (1) documents regarding the manufacturing and testing of the
GPWS and radio altimeter (located in Washington and Arizona); (2)
documents and witnesses regarding FAA compliance testing of the GPWS
(Washington); and (3) evidence relating to the crash, including the flight
8
data recorder, cockpit voice recorder, crash site drawings and photographs,
all of which Plaintiffs say is transportable to Arizona.
They also note the relevance of the documents and witnesses listed by
Plaintiffs that are located in the United States and Canada.Defendants, on
the other hand, list numerous witnesses and evidence which are located in
New Zealand, including the aircraft wreckage, the flight crew, crash
investigators, Plaintiffs, Plaintiffs' doctors and employers, airline and aircraft
records, investigation records, and records regarding the qualifications of the
flight crew and their employment.
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335-36 (9th Cir.1984).
Rather, a court should evaluate the materiality and importance of the
anticipated [evidence and] witnesses' testimony and then determine[ ] their
accessibility and convenience to the forum. We have said previously that a
court's focus should not rest on the number of witnesses or quantity of
evidence in each locale.
For these reasons, records relating to the flight crew and their performance
during the flight will be necessary. Defendants' fair share, however, can
only be determined in relation to Ansett's liability. Plaintiffs suggest that,
because Arizona has done away with joint and several liability, Defendants
need not worry about Ansett because defendants will be responsible only
for their fair share. Finally, when the jury determines damages, it will
consider the relative fault of Defendants and Ansett. As Defendants note,
evidence relating to Plaintiffs' injuries, medical expenses, and loss of
earnings, are crucial to the damages portion of this suit, and these witnesses
and documents, although under Plaintiffs' control, are all in New Zealand.
The New Zealand evidence will go to the liability of Defendants for the crash,
because the jury will need to consider the performance of the equipment in
relation to the performance of the flight crew. However, the performance of
the components during Flight 703 is ultimately in issue, and, for that reason,
the New Zealand evidence relating to the accident is essential to this suit as
well. At trial, the manufacturing of the components will be considered, as
will the post crash tests which were conducted. Both the United States
evidence and the New Zealand evidence are crucial to this dispute.
AlliedSignal has agreed to produce any documents and make available any
witnesses in New Zealand which it would have been required to produce in
the United States. Defendants successfully rebut this argument. They
argue that a New Zealand court could not compel the production of
documents and witnesses under the control of AlliedSignal, a third-party to
the suit. Plaintiffs claim that their access to proof would suffer if the case
moved to New Zealand, because the unit of defendant Sundstrand which is
responsible for the GPWS has been acquired by a different corporation,
AlliedSignal. The district court does not have the power to order the
production or appearance of such evidence and witnesses. Though some of
the New Zealand evidence is under Plaintiffs' control, including Plaintiffs'
medical and employment records, many of the New Zealand documents and
witnesses are under the control of the New Zealand government or Ansett.
The documents and witnesses in New Zealand, however, are not so easily
summoned to the United States. The documents and witnesses in the
United States are all under the control of Plaintiffs and Defendants, so they
can be brought to court, no matter the forum. Although crucial documents
and witnesses exist in both fora, the private interest factors are not in
equipoise.
It is clear that evidence important to this dispute exists in both the United
States and New Zealand.4 However, because the district court cannot
compel production of much of the New Zealand evidence, whereas the
parties control, and therefore can bring, all the United States evidence to
New Zealand, the private interest factors weigh in favor of dismissal.
Given the existence of the related proceedings, it is all the more clear that
the private interest factors weigh in favor of dismissal. Defendants, who
have brought this motion, are willing to cooperate in the production of
evidence. If they are brought into that suit, all the evidence under their
control would have to be produced in New Zealand. Currently, the main
difference is that Defendants are not parties to the Ansett suit. Therefore, a
significant number of the same witnesses will be needed in both proceedings
and much the same evidence will have to be presented to both courts.
Although Plaintiffs characterize the instant suit as focusing on the GPWS
rather than the accident, the fact is that both this and the Ansett lawsuits
revolve around the causes of the accident. Ansett, though not a party to
this suit, controls documents and witnesses that are relevant to this dispute.
Furthermore, as noted above, Plaintiffs are maintaining a suit against
Ansett, the carrier, in New Zealand.
The Public Interest Factors2.
Courts consider the following public interest factors:
local interest of lawsuit;(1)
the court's familiarity with governing law;(2)
burden on local courts and juries;(3)
congestion in the court; and(4)
the costs of resolving a dispute unrelated to this forum.(5)
9
Piper Aircraft, 454 U.S. at 259-61, 102 S.Ct. 252; Gulf Oil, 330 U.S. at 508-
09, 67 S.Ct. 839.
Because the local interest in this lawsuit is comparatively low, the citizens
of Arizona should not be forced to bear the burden of this dispute. The
accident and its aftermath, including the accident investigation, the post-
investigation activity, and the various legal proceedings including an
ongoing criminal probe, have all received significant attention by the local
media. The crash involved a New Zealand airline carrying New Zealand
passengers. Furthermore, the interest in New Zealand regarding this suit is
extremely high. However, this interest is slight compared to the time and
resources the district court in Arizona would expend if it were to retain
jurisdiction over this dispute. The citizens of Arizona certainly have an
interest in the manufacturing of defective products by corporations located
in their forum. One of the defendants is a citizen of the chosen forum:
Honeywell, which manufactured the radio altimeter in issue. None of the
remaining plaintiffs are citizens or residents of the United States. The public
interest factors weigh against maintenance of this action in Arizona.
Choice of Law AnalysisC.
See id. The purpose of a choice of law inquiry in a forum non conveniens
analysis is to determine if one of these statutes would apply. Creative Tech.,
61 F.3d at 700. 56, contain special provisions mandating venue in the
United States district courts. 688(a), and the Federal Employers' Liability
Act, 45 U.S.C. The Jones Act, 46 U.S.C.App. However, the choice of law
analysis is only determinative when the case involves a United States
statute requiring venue in the United States, such as the Jones Act or the
Federal Employers' Liability Act. See Creative Tech., 61 F.3d at 700. Zipfel v.
Halliburton Co., 832 F.2d 1477, 1482 (9th Cir.1987), amended on other
grounds by 861 F.2d 565 (9th Cir.1988). This court has held that [b]efore
dismissing a case for forum non conveniens, a district court must first make
a choice of law determination. 5
Consequently, the applicability of United States law to the various causes of
action should ordinarily not be given conclusive or even substantive
weight.) (quoting Piper Aircraft, 454 U.S. at 247, 102 S.Ct. 252).Lockman
Found., 930 F.2d at 771; see also Gemini Capital, 150 F.3d at 1092 (This
case does not implicate any United States law which mandates venue in the
United States district courts. Because there is no arguably applicable law
that would end the forum non conveniens inquiry [in this case], no
potentially dispositive choice of law determination need have been made.
Where no such law is implicated, the choice of law determination is given
much less deference on a forum non conveniens inquiry. 6
The dismissal of this action is AFFIRMED.Accordingly, because New
Zealand provides an adequate alternative forum and based on the balance
of public and private factors, we find that the district court did not abuse its
discretion in dismissing this suit on forum non conveniens grounds.
Yan Carlos RAVELO MONEGRO; Nelson Rolando Gonzalez Sosa;
Franklin Alvares Galvez; Rafael Micael De La Cruz; Francisco De Los
Santos Heredia; Porfirio Alfred Vasquez Mota; Manuel Acevedo;
Angel Esteban Guillen Solano; Carlos Celedonio Sujilio; Edelmiro
Reyes Santana; Ignacio Henriquez De La Rosa; Fernando Romero;
Tulio Miguel Lizardo Nolosco, Plaintiffs-Appellants, v. Luis ROSA;
Jack Hiatt; San Francisco Baseball Associates, L.P., dba San
Francisco Giants, Defendants-Appellees.
98-16846.No.
Decided: May 3, 2000I
Underscoring this potential for transfer, many of the contracts contained
addenda stating salaries in Bellingham, Washington, Scottsdale, Arizona,
and Shreveport, Louisiana. Although the contracts initially provided that all
the plaintiffs would play baseball for the San Pedro Giants in the Dominican
Republic, the contracts could be assigned, and the players transferred, to
minor or major league teams in the United States. At Rosa's instigation,
each player signed a seven-year minor league contract with the Giants.
When they were between sixteen and twenty years old, they were recruited
by Luis Rosa, the Giants' former Latin America scout. The thirteen plaintiffs
are aspiring professional baseball players who live in the Dominican
Republic.
In April 1998, plaintiffs initiated this suit against the Giants, Rosa and Hiatt.
They also allege that the Giants' management knew or had reason to know
of Rosa's misconduct. All thirteen plaintiffs claim that Rosa expressly
conditioned their continued employment and/or reassignment to United
States teams upon their submitting to his sexual advances, and that Rosa
appropriated part of their earnings or signing bonuses for his own use.
Playing for the San Francisco Giants or some other United States team was
the plaintiffs' common goal.
Plaintiffs timely appeal. The district court granted the defendants' motion
on the ground of forum non conveniens. Noting the pendency of this
parallel proceeding, the defendants moved in June 1998 to dismiss
plaintiffs' complaint on the alternative grounds of forum non conveniens and
abstention. As a result of their complaints, a combined criminal and civil
suit against the Giants and Rosa is now pending in the Dominican Republic.
10
In June 1997, plaintiffs had brought substantially similar allegations to the
attention of authorities in the Dominican Republic.
II
See K.V. Mart Co. v. United Food A district court may abuse its discretion by
relying on an erroneous view of the law, by relying on a clearly erroneous
assessment of the evidence, or by striking an unreasonable balance of
relevant factors. Creative Tech., Ltd. v. Aztech Sys. Pte Ltd., 61 F.3d 696,
699 (9th Cir.1995). A forum non conveniens determination is committed to
[the] sound discretion of the trial court, and may be reversed only when
there has been a clear abuse of discretion. & Commercial Workers Int'l
Union, Local 324, 173 F.3d 1221, 1223 (9th Cir.1999); Creative Tech., 61 F.3d
at 699.
III
See Rivendell Forest Prods. Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 992 (10th
Cir.1993); Royal Bed Since Piper, however, several circuits have held that a
forum non conveniens motion in federal court is governed by federal law.
The Supreme Court expressly avoided deciding this issue in Piper Aircraft v.
Reyno, 454 U.S. 235, 248 n. 13, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). A
threshold issue is whether, under Erie Railroad v. Tompkins, 304 U.S. 64, 58
S.Ct. 817, 82 L.Ed. 1188 (1938), a forum non conveniens motion in federal
court is governed by federal or state law. & Id. at 453, 114 S.Ct. 981
(upholding the application in state court of a state forum non conveniens
rule in a Jones Act admiralty case). Our conclusion is reinforced by the
Supreme Court's statement in American Dredging Co. v. Miller, 510 U.S. 443,
114 S.Ct. 981, 127 L.Ed.2d 285 (1994), that the doctrine [of forum non
conveniens] is one of procedure rather than substance. In re Air Crash
Disaster, 821 F.2d at 1159. We agree with the Fifth Circuit's conclusion that
the interests of the federal forum in self-regulation, in administrative
independence, and in self-management are more important than any
interest in uniformity between the federal and state forums in a single state.
We join these circuits and hold that federal rather than state law governs.
But see In Re Air Crash Disaster, 821 F.2d at 1180-86 (Higginbotham, J.,
concurring in the judgment) (arguing that state forum non conveniens law
should apply to diversity actions in federal court); Weiss v. Routh, 149 F.2d
193, 195 (2d Cir.1945) (L. Hand, J.) (stating that state law should control a
federal court's assertion of jurisdiction). Spring Co. v. Famossul Industria e
Comercio de Moveis, Ltda., 906 F.2d 45, 50 (1st Cir.1990); In re Air Crash
Disaster Near New Orleans, La., 821 F.2d 1147, 1159 (5th Cir.1987) (en
banc), vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d
400 (1989), prior opinion reinstated in relevant part, 883 F.2d 17 (5th
Cir.1989); Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1219 (11th Cir.), cert.
denied, 474 U.S. 948, 106 S.Ct. 347, 88 L.Ed.2d 294 (1985).
See Stangvik v. Shiley, Inc., 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 819 P.2d 14
(Cal.1991).304-306 (3d ed.1985); Holmes v. Syntex Labs., 156 Cal.App.3d
372, 202 Cal.Rptr. 773 (1984), it appears to have become true since then.
Piper, 454 U.S. at 249 n. 13, 102 S.Ct. 252. While this statement was almost
certainly untrue when made, see 2 B. Witkin, California Procedure
Jurisdiction 410.30. When the Supreme Court reserved the Erie issue in
Piper, it observed that California and federal forum non conveniens laws
were virtually identical. See Cal.Civ.Proc.Code We note, however, that
the result in this case would likely be the same if we applied California's law
of forum non conveniens.
IV
See, e.g., Piper, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419. In the second
type, now more commonly encountered, a foreign plaintiff chooses the home
forum of an American defendant in an action that has little or no relation to
the United States in order to take advantage of more favorable American
procedural or substantive rules. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Koster v. Lumbermens Mut. Cas.
Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). In the first type, now
rarely encountered, a foreign or domestic plaintiff chooses a forum with little
or no relation to either the defendant or the action in order to disadvantage
the defendant. There are two types of cases in which forum non conveniens
dismissals have been deemed appropriate in federal court.
Private interest factors included the relative ease of access to sources of
proof, the availability of compulsory process for unwilling witnesses, the
comparative cost of obtaining willing witnesses, the possibility of a view of
any affected premises, the ability to enforce any judgment eventually
obtained, and all other pracId. at 504, 67 S.Ct. 839. In upholding a forum
non conveniens dismissal, the Court articulated a number of private and
public interest factors relevant in assessing whether exceptional
circumstances justified a forum non conveniens dismissal. Gilbert, 330 U.S.
at 502-03, 67 S.Ct. 839. 1404(a), a Virginia plaintiff sued Pennsylvania-
based Gulf Oil in the Southern District of New York based on Gulf's allegedly
negligent delivery of gasoline and an ensuing explosion at Gilbert's Virginia
warehouse. For example, in Gilbert, decided just before the passage of
1404(a) in 1948. The first type of case was common in federal courts before
the adoption of 28 U.S.C. See id. at 508-09, 67 S.Ct. 839.Public interest
factors included court congestion, the unfairness of burdening citizens in an
unrelated forum with jury duty, the interest in having localized controversies
decided at home, the interest in trying the case in a forum familiar with the
11
applicable law, and the interest in avoiding unnecessary conflicts of laws.
Id. at 508, 67 S.Ct. 839. tical problems that make trial of a case easy,
expeditious and inexpensive.
Indeed, foreign plaintiffs typically bring such suits in the quintessentially
convenient forum for the defendant-the defendant's home forum. As a
consequence, a forum non conveniens motion in a Gilbert-type case is now
rare, for foreign plaintiffs seeking to avoid their home forums by filing in the
United States do not typically sue in a forum with little or no relation to
either the defendant or the action. The doctrine of forum non conveniens
survives in federal court only when the alternative forum is in a foreign
country. Section 1404(a) thus serves as a statutory substitute for forum
non conveniens in federal court when the alternative forum is within the
territory of the United States. 1404(a). 28 U.S.C. 1404(a) now allows
transfer of a case from one federal district court to another for the
convenience of parties and witnesses in the interest of justice. Rather than
requiring dismissal and refiling of a suit where the alternative forum is
another federal court,
1404(a) and 1406(a), Pursuant to 28 U.S.C. 1441. Defendants removed themselves. Plaintiffs allege that the Giants, through their agent, Rosa,
the case to federal district court in California under 28 U.S.C. Gaynell
Reyno was appointed as administratrix of the estates of several of the
passengers for the purpose of filing a wrongful death action in California
state court against Piper Aircraft and Hartzell Propeller, the manufacturers of
the plane and its propeller. Piper arose out of the crash of a small plane in
the Scottish highlands that killed the Scottish pilot and five Scottish
passengers. In Piper, the Supreme Court adapted the analytic structure of
Gilbert to take into account the special characteristics of a case in which a
foreign plaintiff sues an American defendant in its home forum. 2 defendants
then secured its transfer to the Middle District of Pennsylvania, the home of
Piper's manufacturing plant.
See Reyno v. Piper Aircraft Co., 479 F.Supp. 727, 732-34 (M.D.Pa.1979).
Finally, the district court stressed that it was unfamiliar with Scottish law,
and that since different law applied to different defendants, a trial in the
United States would be hopelessly complex and confusing. Further, there
was a significant risk of inconsistent verdicts because there was a separate
action filed in Scotland, and defendants Piper and Hartzell could not reduce
or eliminate that risk by impleading as third-party defendants the charter
company and the estate of the pilot. The decedents were Scottish; all the
real plaintiffs in interest and witnesses were Scottish; trial would be aided by
local familiarity with Scottish geography; and crucial evidence in Scotland
was beyond the reach of the district court's compulsory process. Even
though the action was now brought in Piper's home forum, the Pennsylvania
district court granted defendants' motion to dismiss under forum non
conveniens, finding that a combination of the public and private interest
factors derived from Gilbert overwhelmingly favored the Scottish forum.
First, the possibility of less favorable substantive law in the plaintiff's home
forum should ordinarily not be given conclusive or even substantial weight
in the forum non conveniens inquiry.In sustaining the district court's
dismissal, the Supreme Court generally endorsed the district court's reliance
on the Gilbert factors, but gave special attention to two factors peculiar to a
case brought in the United States against American defendants by a foreign
plaintiff. 3 Id. at 256, 102 S.Ct. 252. Second, in contrast to the strong
presumption in favor of a domestic plaintiff's forum choice, a foreign
plaintiff's choice deserves less deference. Piper, 454 U.S. at 247, 102 S.Ct.
252.
V
Based on these contracts, plaintiffs formed the legitimate expectation that if
they demonstrated sufficient skill they would be able to play professional
baseball in the United States, possibly in San Francisco for the Giants
solicited and entered into contracts with the plaintiffs. It is also a forum
with a substantial relation to the action. First, unlike Piper, plaintiffs'
chosen forum is more than merely the American defendants' home forum.
This case is unlike Piper in a number of respects.
Despite this concern, the district court did not make its forum non
conveniens dismissal contingent upon Rosa's participation in the proceeding
in the Dominican Republic, either by so ordering in its original dismissal or
by amending its dismissal order in response to plaintiffs' Rule 60(b) motion.
Indeed, in their Rule 60(b) motion in the district court for reconsideration of
the dismissal, plaintiffs produced affidavits from two people who recount
that Rosa told them he did not plan to return to the Dominican Republic
where he faces possible imprisonment. The plaintiffs expressed concern
that Rosa's agreement was feigned. 111.74[3][c][iii] (3d ed.1997), the
district court did not accord this factor any weight because Rosa agreed to
participate in legal proceedings in the Dominican Republic. Although the
relative ability of the forums to compel the attendance of significant
unwilling witnesses at trial is an important private interest factor, see 17
James Wm. Moore et al., Moore's Federal Practice Indeed, quite the
opposite problem exits in this case: If this suit were dismissed in favor of a
suit in the Dominican Republic, it is not clear that defendant Rosa would
appear, or could be compelled to appear, in that forum. Second, unlike
Piper, there are no possible co-defendants or third-party defendants who
could not be made to appear in the American forum.
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 Indeed, the only evidence before the district court was a declaration tending
to show the opposite, stating that visas would be readily available to
plaintiffs. But there is no evidence to support these assertions. The Giants
asserted in their motion to dismiss in the district court that the costs of
bringing witnesses to California would be significantly greater than litigating
the matter in the Dominican Republic, and that United States citizens have
much easier access to the Dominican Republic than Dominican Republic
citizens have to enter the United States. Third, unlike Piper, there is no
showing that access to proof-even aside from Rosa's testimony-would be
easier in the Dominican Republic.
See Lony v. E.I DuPont de Nemours But less deference is not the same
thing as no deference. We recognize that the Supreme Court in Piper held
that a foreign plaintiff's [forum] choice deserves less deference than the
forum choice of a domestic plaintiff. The record in this case indicates the
district court misunderstood this standard: rather than treating forum non
conveniens as an exceptional tool to be employed sparingly, the district
court perceived it as a doctrine that compels plaintiffs to choose the optimal
forum for their claim. Id. at 1410. In Cheng v. Boeing Co., 708 F.2d 1406
(9th Cir.1983), this court noted that the standard to be applied [to a motion
for dismissal on the ground of forum non conveniens] is whether
defendants have made a clear showing of facts which establish such
oppression and vexation of a defendant as to be out of proportion to
plaintiff's convenience, which may be shown to be slight or nonexistent &
We hold that it was an abuse of discretion for the district court to deny
plaintiffs their choice of federal district court in San Francisco as their
forum.Co., 886 F.2d 628, 633 (3d Cir.1989).
VI
The decision of the district court is therefore REVERSED, and the case is
REMANDED for further proceedings consistent with this opinion.
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