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ABIAAD v. GMC

March 5, 1982

Maroun Najib ABIAAD and Francisca Abiaad
v.
GENERAL MOTORS CORPORATION



The opinion of the court was delivered by: WEINER

This is a diversity jurisdiction action for personal injuries brought under a products liability theory. Presently before the court is the motion of the defendant to dismiss for forum non conveniens. For the reasons which follow, and subject to the conditions specified herein and our accompanying order, the motion is granted.

 I

 Viewed in the light most favorable to the plaintiff, the facts are as follows. Plaintiff-husband is a citizen of the country of Lebanon; plaintiff-wife is a citizen of the country of Brazil. Both now reside in Philadelphia, as they did at the time this suit was commenced in the Court of Common Pleas, Philadelphia County. Defendant subsequently effected removal to this court.

 The incident which gave rise to this action occurred in Abu Dhabi, United Arab Emirates. Plaintiffs allege that plaintiff-husband was injured while working on a 1977 Cadillac Eldorado manufactured by defendant, when the engine burst into flames. The car had been sold by General Motors Overseas Distribution Corporation to Saeed Bin Ahmed Al-Otaiba and Son, an independent dealer located in Abu Dhabi. The car was owned by the Pan Arabian Company of the United Arab Emirates, and was operated regularly by the manager of the company, Wael Alzein. It had been brought to plaintiff-husband for repair of a "miss in the engine" believed to be due to a fuel injection problem.

 The work was being conducted in plaintiff-husband's rented automobile repair shop in Abu Dhabi, by both plaintiff-husband and his employees. They had previously worked on the same car approximately one month earlier. The remains of the vehicle are in Abu Dhabi. All medical treatment received by plaintiff-husband was administered in Abu Dhabi by local medical personnel.

 II

 The doctrine of forum non conveniens permits a court to resist imposition upon its jurisdiction in certain circumstances even though it has jurisdiction and venue is proper. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1946). The doctrine "involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else." Norwood v. Kirkpatrick, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789 (1955). Among other reasons, "when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems,' the court may, in the exercise of its sound discretion, dismiss the case." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S. Ct. 252, 258, 70 L. Ed. 2d 419 (1981); quoting Koster v. Lumbermen's Mut. Cas. Co., 330 U.S. 518, 67 S. Ct. 828, 91 L. Ed. 1067 (1947).

 As an initial matter, application of the doctrine presupposes the existence of an adequate alternative forum in which the action can be brought. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22, 102 S. Ct. 252, 265, n.22, 70 L. Ed. 2d 419. The court must then employ the balancing test set forth in the Gulf Oil case. As explained in the Reyno case, the court should be guided by the Gulf Oil v. Gilbert "list of 'private interest factors' affecting the convenience of the litigants, and a list of 'public interest factors' affecting the convenience of the forum." Piper Aircraft Co. v. Reyno, at , 102 S. Ct. at 258.

 (A)

 The threshold question of availability of an alternative forum does give us some pause, for the law and customs and practices of Abu Dhabi, United Arab Emirates, are not matters with which we are greatly familiar. Nonetheless, plaintiffs have not brought to our attention and we are not aware of any information that would lead us to conclude that this is one of those "rare circumstances... where the remedy offered by the other forum is clearly unsatisfactory... [so that] the other forum may not be an adequate alternative...." Reyno at n.22, 102 S. Ct. at 265, n.22. Cf. Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 78 F.R.D. 445 (D.C.Del. 1978), in which the court refused to dismiss in favor of the proposed alternative forum of Ecuador, for among other reasons, uncertainty as to Ecuador's ability to obtain jurisdiction over the defendants, and possible lack of legal remedy in Ecuador for the legal theories advanced by the plaintiff. Id. at 456. Unlike that court however, as discussed below, this court finds the other factors which must be considered in deciding forum non conveniens questions to weigh in favor of dismissal. Thus we believe that the mere unsubstantiated possibility that the United Arab Emirates is not an adequate alternative forum is not enough to warrant imposition upon this court's jurisdiction of a case which really ought to be heard in that other forum. Dismissal seems particularly appropriate when conditioned upon those requirements set out at the end of this opinion. In addition, we are persuaded to dismiss even after careful reading of the thoughtful opinion in Fiorenza v. United States Steel International, Ltd., 311 F. Supp. 117 (S.D.N.Y.1969), and the cases relied on therein. The court there held that when an alternate forum "is not truly available for any reason... the doctrine of forum non conveniens will not be applied to dismiss the action," and found that the "prospective unavailability of the alternate forum in the Bahamas outweigh" other factors favoring dismissal. Id. at 121. In our view, the prospective unavailability of an alternate forum in the United Arab Emirates is but pure conjecture. Had we before us some tangible support for the proposition that the alternative forum is clearly inadequate, we might have reached a different result.

 (B)

 In ruling on the existence and adequacy of an alternative forum issue in particular, and on the balancing of conveniences in forum non conveniens cases in general, it is now clear that dismissal may not be defeated "merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiff than that of the present forum." Piper Aircraft Co. v. Reyno, U.S. at , 102 S. Ct. at 261.

 Neither the briefs or other material supplied to the court by the parties, nor the research conducted from resources available to this court in the time since defendant's motion was filed, is sufficient for us to determine with any certainty just what the law of products liability, negligence, and personal injury is in the United Arab Emirates. Nevertheless, it need not equal that of Pennsylvania in order for dismissal to be proper. Less favorable law and chance of recovery does not by itself bar dismissal. Id. at , 102 S. Ct. at 262. Indeed, if the law was otherwise the court would find itself engaged in just those difficult interpretations of the law of foreign jurisdictions and complex exercises in comparative law that the doctrine of forum non conveniens was designed, in part, to avoid. Id. For that reason, despite our lack of clarity regarding the exact nature of the law in the alternative jurisdiction, we are constrained to dismiss this case. Even assuming that the law is less favorable to plaintiffs, as already noted in II(A), above, it simply has not been demonstrated that dismissal will deprive plaintiffs of any remedy at all. See Id. at , 102 S. Ct. at 265.

 One other matter deserves attention before turning to the Gulf Oil v. Gilbert analysis. We are presented not with a plaintiff who is a resident of some foreign country, but with a plaintiff who, albeit not a citizen, is a permanent resident of the United States and whose choice of forum is his country of residence. Thus this case differs in that respect from Piper Aircraft Co. v. Reyno. However, some guidance is provided by the Supreme Court in that case. The court recognized a "distinction between resident or citizen plaintiff and foreign plaintiffs... [as] fully justified." Id. at , 102 S. Ct. at 266. The court reasoned that "a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum... [because] [when] the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable... [so that] a foreign plaintiff's choice deserves less deference." Id. In the accompanying footnote, the court was careful to note that despite the greater deference given a resident plaintiff suing at home, forum non conveniens is nonetheless available to the court in appropriate circumstances.

 
"Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be ...

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