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REYNO v. PIPER AIRCRAFT CO.

October 19, 1979

Gaynell REYNO, Personal Representative of William Fehilly, Liam Stuart Fehilly, William James McDougall Storm, David Vincent Moran and Peter Cunningham Scott, Plaintiffs,
v.
PIPER AIRCRAFT COMPANY, a corporation, Avco Lycoming Engine Division, a Division of Avco Corporation, Hartzell Propeller, Inc., a corporation, Defendants.



The opinion of the court was delivered by: HERMAN

MEMORANDUM

This action arises out of an airplane crash near Tulla, Scotland on July 27, 1976 in which all persons aboard were killed. The Plaintiff, Gaynell Reyno, instituted this suit as the personal representative of five decedents, William Fehilly, Liam Stuart Fehilly, William James McDougall Storm, David Vincent Moran, and Peter Cunningham Scott. Gaynell Reyno seeks general damages for the heirs and next of kin of the above decedents and damages for funeral and burial expenses in this suit styled as one for wrongful death on the basis of products liability and negligence theories. The remaining Defendants, Piper Aircraft Company and Hartzell Propeller, Inc., were the manufacturers of the aircraft and propeller respectively. A number of motions are presently before the court, a motion to dismiss filed by Defendant Hartzell Propeller, a motion for judgment on the pleadings or for summary judgment filed by Piper Aircraft, and two motions to strike a responsive brief filed by the Plaintiff. After reviewing the extensive materials submitted by all parties, we have concluded that this action must be dismissed on the ground of Forum non conveniens. This dismissal will be conditioned on the Defendants abiding by their stipulation to submit to the jurisdiction of the courts of Scotland and their waiver of the Scottish statute of limitations.

 Our primary attention therefore is focused on the factors applicable to the doctrine of Forum non conveniens and the question whether we should exercise jurisdiction over this action brought by reason of an aircraft accident in Scotland, in which Scottish citizens who were passengers and a Scottish pilot, acting in the course of his employment with a Scottish Air Service, were killed while flying in Scottish airspace and when all decedents' survivors, the real parties in interest, are citizens and residents of Scotland and more particularly, when the only contact with Pennsylvania is that it was the site of the manufacture of the airplane involved in this litigation, not the propeller which was manufactured and designed in Ohio, over seven years prior to the date of the fatal accident. Too much has happened from the date the airplane left the plant of Piper Aircraft, which goes to the heart of the question of liability, that the contact with this forum with respect to this action can at best be described as plainly insignificant.

 The procedural history of this case is important to our decision of dismissal. The action was instituted by Plaintiff Reyno in the Superior Court of the state of California for the county of Los Angeles in July of 1977. After being removed to federal court in August of that year, Defendant Hartzell filed a motion to dismiss the action for lack of personal jurisdiction or in the alternative to transfer the action pursuant to 28 U.S.C. § 1404(a). Defendant Piper then joined in Defendant Hartzell's motion to transfer the action on November 23, 1977. The District Court entered an order on December 21, 1977 granting Defendant Hartzell's motion to quash service of process and granting the motion to transfer this action to the United States District Court for the Middle District of Pennsylvania. The quashing of service of process to Hartzell was based on due process considerations set forth in International Shoe Company v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The court did not dismiss the action against Defendant Hartzell since valid service against it was possible in the Middle District of Pennsylvania. The importance of the transfer of the action and the quashing of service against Hartzell lies in the applicable choice of laws rule that is relevant to each Defendant under rules of Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) and Klaxon Co. v. Stentor Electric Manufacturing, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1944).

 The facts as noted center on the crash of an aircraft on July 27, 1976 in which the pilot and all passengers were killed in the navigable air space near Tulla, Scotland. The aircraft involved in the accident was a Piper Model TA-23 bearing British registration mark G-AYSF which was manufactured by Defendant Piper at Lock Haven, Pennsylvania. The plane's propeller was designed and manufactured by Defendant Hartzell Propeller, Inc. in Ohio. The aircraft was being piloted at the time of the accident by a Scottish citizen and resident, over mountainous terrain in southern Scotland. Subsequent to the manufacture of the aircraft involved in this accident it was sold and delivered to a purchaser in Ohio for use in the United States. By a chain of events, apparently still unknown to the Defendants, the plane came to be owned and operated by a Scottish air-taxi company in Scotland and the British Isles. The plane was owned, operated, maintained, and serviced by the Scottish owner for several years preceding the accident of July 27, 1976. The British Department of Trade Investigation investigated the accident shortly after its occurrence. Presently, what remains of the wreckage is in the possession of the British Department of Trade Investigation.

 The Plaintiff, Gaynell Reyno instituted this action as the personal representative of the estates of five of the decedents. All of these decedents were citizens and residents of the country of Scotland. Also, all heirs and next of kin, and all those persons entitled to recover by virtue of the deaths of the passengers, (if any recovery is decreed), are citizens and residents of the country of Scotland. Plaintiff Reyno is a citizen and resident of California and is not related to the decedents.

 The Defendants assert that the accident was due to pilot error or improper maintenance and servicing of the aircraft and in this respect have stated their desire and inability to join the operating company by whom the pilot was employed, the pilot's estate, and the owner and maintainer of the aircraft. A lawsuit has been brought before the courts of Scotland naming as defendants the operating company, MacDonald Aviation, Ltd., the owner of the plane, Air Navigation and Trading Company, Ltd., the executor of the pilot's estate, and the Civil Aviation Authority. Also an action was commenced in the courts of Great Britain against Piper Aircraft and Hartzell Propellers along with MacDonald Aviation and Air Navigation and Trading Company by a personal representative of the sixth passenger in the aircraft at the time of the accident, the only passenger not represented by Gaynell Reyno in the instant action. Therefore at least one action is pending before the courts in the United Kingdom against the present Defendants and other involved parties.

 We now begin with a discussion of the factors that we believe substantially point to the dismissal of this action under the doctrine of Forum non conveniens. We have the inherent power to refuse jurisdiction over a case such as this one where the interests of justice require that the suit be brought in a foreign country. Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947); DeMateos v. Texaco, Inc., 562 F.2d 895 (3d Cir. 1977), cert. denied 435 U.S. 904, 98 S. Ct. 1449, 55 L. Ed. 2d 494 (1978); Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975) cert. denied 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed. 2d 641 (1976); Dahl v. United Technologies Corporation, 472 F. Supp. 696 (D.Del.1979).

 The general factors that we must consider in determining whether to dismiss an action for Forum non conveniens were set forth by the Supreme Court in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Mr. Justice Jackson enumerated in that decision numerous private and public interests that should be considered under the doctrine. The factors pertaining to the private interests of the litigants 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" Id. at 508, 67 S. Ct. at 843. The public factors bearing on the question include the administrative difficulties flowing from court congestion, an interest in having local controversies decided at home, the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action, the avoidance of unnecessary problems and conflicts of law foreign to the Court, and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 508-509, 67 S. Ct. 839.

 The above cited factors have generally been followed by all courts presented with the issue of whether a case should be dismissed because a foreign forum is the more convenient one. See, e.g., DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (3d Cir. 1977); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 450-51 (2d Cir. 1975); J. F. Pritchard and Co. v. Dow Chemical of Canada, 462 F.2d 998, 1000 (8th Cir. 1972); Fitzgerald v. Westland Marine Corporation, 369 F.2d 499, 501-02 (2d Cir. 1966); Dahl v. United Technologies Corporation, 472 F. Supp. 696, 699 (D.Del.1979); Top Form Mills v. Sociedad Nationale Industria, 428 F. Supp. 1237, 1252-53 (S.D.N.Y.1977); Michell v. General Motors Corporation, 439 F. Supp. 24, 26-27 (N.D.Ohio 1977); Texaco Trinidad, Inc. v. Astro Exito Navegacion S. A., 437 F. Supp. 331, 332 (S.D.N.Y.1977); Farmanfarmaian v. Gulf Oil Corporation, 437 F. Supp. 910, 923 (S.D.N.Y.1977); DelRio v. Ballenger Corporation, 391 F. Supp. 1002, 1004 (D.S.C.1975); Domingo v. States Marine Lines, 340 F. Supp. 811, 814-13 (S.D.N.Y.1972); McCarthy v. Canadian National Railways, 322 F. Supp. 1197, 1199 (D.Mass.1971); Olympic Corporation v. Societe Generale, 333 F. Supp. 121, 123-24 (S.D.N.Y.1971). We have carefully read each of the above cited decisions and in light of these decisions and their analysis of the Gulf Oil factors, it is clear that it would be no less than an abuse of our discretion if we did not dismiss this action on Forum non conveniens grounds as the Gulf Oil criteria overwhelmingly point to dismissal.

 The first factor that we must consider is whether an alternative forum is open to the Plaintiff if this motion is dismissed. Generally, it has been stated by the courts that the doctrine of Forum non conveniens presupposes that an alternative more appropriate and convenient forum is available. See, e.g., DelRio v. Ballenger Corporation, 391 F. Supp. 1002, 1006 (D.S.C.1978), Texaco Trinidad v. Astro Exito Navegacion S. A., 437 F. Supp. 331, 332 (S.D.N.Y.1977); Farmanfarmaian v. Gulf Oil Corporation, 437 F. Supp. 910, 915 (S.D.N.Y.1977). This principle is taken from the Gulf Oil decision in which it is stated "(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 . . .." Gulf Oil, 330 U.S. at 506-07, 67 S. Ct. at 842. In the instant motion the Defendants have consented to submit to the jurisdiction of the Scottish courts of law and we have noted our intention of conditioning the dismissal of this action on their submission to the jurisdiction of such courts and their waiver of any statute of limitations. Plaintiff has an alternative forum available to her and in fact a case is proceeding in the foreign courts already.

 Next, we turn to the important factor of Plaintiff's choice of forum. As stated in Gulf Oil, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 508, 67 S. Ct. at 843. Here the Plaintiff's first choice was the California state Superior Court. Plaintiff relies on a number of cases under 28 U.S.C. § 1404(a) in which the Plaintiffs were American citizens. This case, however, does not involve section 1404(a) as the determination rests on our inherent power to dismiss and it also does not involve Americans as real parties in interest. Rather, the Plaintiff is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law.

 Generally, the courts have been less solicitous when the plaintiff is not an American citizen or resident and, particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States. As stated in Farmanfarmaian v. Gulf Oil Corporation, 437 F. Supp. 910, 927 (S.D.N.Y.1977), when a case involves a "claim of a foreign plaintiff, (his) choice of forum should be given less weight than the choice of an American plaintiff . . .." And in Olympic Corporation v. Societe Generale, 462 F.2d 376, 378 (2d Cir. 1972), the court stressed that the balance of the Gulf Oil factors need not be as strong in favor of defendants when the plaintiff is not an American citizen. See also, Olympic Corporation v. Societe Generale, 333 F. Supp. 121, 124 (S.D.N.Y.1971); Michell v. General Motors Corporation, 439 F. Supp. 24 (N.D.Ohio 1977).


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