delay, we are more concerned with the substance of defendant's position.
If examination of the components were to reveal that H & W was not the manufacturer, the forum non conveniens issue would be cast in a whole new light. However, defendant's argument appears to put the cart before the horse. In essence defendant asks that we await the outcome of discovery and a summary judgment motion before we decide whether this Court should act at all in this case!
Entanglement in the substantive factual details of the underlying claim appear to be inevitable in a forum non conveniens analysis. Our prior attempt to avoid the minutiae in this case received little sympathy from the Circuit. However, we think there is considerable difference between examining the averments of various parties in affidavits, and awaiting completion of discovery and a summary motion.
Plaintiff also points out that examination of the parts may not be as conclusive as defendant asserts. The relevant component is in various fragments and according to one affidavit no identifying marks or numbers are visible on the remaining fragments. At the very least this examination would set up a battle of experts, and in any event H & W may be liable for design of the component even if it did not manufacture it.
For the reasons stated, H & W's Motion to Defer Ruling on the forum non conveniens issue will be denied. However, H & W is not on record as opposing or acquiescing in the renewed forum non conveniens argument. Therefore we will require H & W to state its position on the forum non conveniens arguments either by filing its own motion and brief, or by joining in the other defendants' motions, or by filing a Response to those motions. Plaintiff will then have an opportunity to respond and we will proceed to a resolution of the forum non conveniens issue.
AND NOW, in accord with the accompanying Opinion, it is hereby ORDERED that:
1) Defendant H & W's Motion to Compel Discovery and Motion to Defer Ruling on the Forum Non Conveniens Issue are DENIED.
2) Defendant H & W shall either file a Motion to Dismiss with supporting evidentiary material and brief, join in other defendants' Motions to Dismiss, or file a Response to said motions, on or before August 25, 1989.
3) Plaintiff shall file a Response to H & W's filing with any supplemental brief and/or evidentiary material on or before September 5, 1989.
SO ORDERED this 15th day of August, 1989.
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