Boreri v. Fiat S.p.A.

• Citation: 763 F.2d 17
• Decision Date: 30 May 1985
• Docket Number: No. 84-1774,84-1774
• Parties: Robert J. BORERI, et al., Plaintiffs, Appellees, v. FIAT S.P.A., Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 17

763 F.2d 17

2 Fed.R.Serv.3d 486

Robert J. BORERI, et al., Plaintiffs, Appellees, v. FIAT S.P.A., Defendant, Appellant.

No. 84-1774.

United States Court of Appeals First Circuit.

Argued March 7, 1985.

Decided May 30, 1985.

Richard L. Edwards, Boston, Mass., with whom Richard P. Campbell and Campbell & Associates Professional Corp., Boston, Mass., were on brief for defendant, appellant.

Lawrence Moniz, Taunton, Mass., with whom Francis M. O'Boy and O'Boy & Moniz, P.C., Taunton, Mass., were on brief for plaintiffs, appellees.

Before TORRUELLA and ALDRICH, Circuit Judges, and SELYA, ^* District Judge.

SELYA, District Judge.

This proceeding has its roots in a traffic accident which occurred on August 12, 1979 in Freetown, Massachusetts. On that date, Robert J. Boreri was severely injured when his 1972 Fiat 128AF station wagon left the road. Contending that the proximate cause of the mishap was the failure of the vehicle's steering mechanism, Boreri brought this product liability suit on August 9, 1982 in the United States District Court for the District of Massachusetts. ¹ We review in some detail the factual/procedural backdrop against which this appeal is played out before attempting to frame the issues.

I. BACKGROUND.

Boreri's complaint, which asserted claims sounding in negligence, breach of warranty and strict liability, was sued out against both Fiat S.p.A. (Fiat), the manufacturer of his vehicle, and Fiat Motors of North America, Inc. (Fiat N.A.), Fiat's distributor in the United States. Fiat is an Italian corporation with its principal place of business in Turin, Italy. Fiat N.A., which is not a party to this appeal, is a New York corporation headquartered in Montvale, New Jersey.

On November 22, 1982, Boreri filed and served a set of interrogatories to be answered by Fiat in accordance with Fed.R.Civ.P. 33. But, the attention of the parties was soon diverted from this initiative. On February 4, 1983, Fiat moved to dismiss the action against it for lack of personal jurisdiction, arguing that it was an Italian corporation wholly distinct from Fiat N.A., doing no business in Massachusetts, and not susceptible to the amenities of a Massachusetts forum. Fiat also moved to quash service of the summons and complaint, claiming a failure of compliance with the provisions of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163 (1969). The district court denied Fiat's motion to dismiss on July 25, 1983 and ordered the parties to resolve any dispute anent service on that basis. That decree, in time, rekindled the parties' interest in the dormant interrogatories; on December 23, 1983, they moved jointly to extend Fiat's time to "answer or otherwise respond" until February 1, 1984. (The court below never ruled on this motion.)

On the appointed date (February 1), Fiat served no answers; instead, it filed a broadbrush motion to strike the interrogatories, on the ground that they had been promulgated without regard to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, done March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, codified at 28 U.S.C. Secs. 1781 et seq. (Hague Convention). The appellant requested, inter alia, an order that it be exempted from future discovery except in strict accordance with the Hague Convention. The motion was unaccompanied by any affidavits, documentary proffers, or source material referable to the stance of the Italian government. The district court's attention was not directed to any specific provision of foreign law. See Fed.R.Civ.P. 44.1.

We digress for a moment. The Hague Convention "was designed to deal with the frustration of American lawyers seeking evidence in foreign countries and foreign nations' perceptions of excessively broad discovery from America." Note, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad, 132 U.Pa.L.Rev. 1461, 1465 (1984). In the United States in this modern era, civil pretrial discovery is not only extensive, but is in the first instance conducted by the parties themselves. Such a concept is alien to the ways of most civil law countries, where the taking of all evidence is exclusively a function of the court. In those countries, discovery American-style is often considered an affront to the nation's judicial sovereignty.

The Hague Convention represented an attempt to bridge this gap between the American and civil law methods of obtaining discovery. It outlines three methods of securing evidence, i.e., (i) letters of request (Articles 1-14), (ii) taking of evidence by diplomatic officers of the forum state (Articles 15-16), and (iii) taking of evidence by duly appointed commissioners (Article 17). Under Article 23, however, signatory nations may refuse to execute any or all letters of request. Most of the member nations have imposed some restriction on the procedure; five nations, including Italy, have precluded it entirely. The United States ratified the Convention in 1972, but Italy did not do so until 1982 (and then, only with the plenary exercise of its Article 23 right).

It is in the albedo of this delicate diplomatic byplay that we return to the case at bar. On February 22, 1984, a magistrate of the district court, to whom the nondispositive motion to strike had been referred, see Fed.R.Civ.P. 72(a), denied the motion in its entirety. The magistrate held that the motion was untimely; that Fiat had waived its right to object both by utilizing standard pretrial discovery techniques to its own behoof (the appellant, for example, had sought to depose Boreri's expert pursuant to Fed.R.Civ.P. 26) and by moving for the aforementioned extension of time; and that use of the Hague Convention was in any event not obligatory, but was discretionary with the judicial officers of the contracting states. Noting that Fiat had failed affirmatively to demonstrate that the Italian government objected to private litigants utilizing the Federal Rules of Civil Procedure to propound interrogatories to Italian citizens who do business in the United States, the magistrate declined to impress the strictures of the Convention upon the appellee.

On March 6, 1984, Fiat moved to have the district court reconsider and set aside the magistrate's order. ² On August 10, 1984, the district court summarily affirmed the magistrate's order denying Fiat's motion to strike, and simultaneously entered an order denying Fiat's request that it reconsider the magistrate's decision.

The instant appeal thereupon ensued. ³ Instanter, we issued an order questioning appellate jurisdiction in light of the absence of any final judgment. Fiat vouchsafed the appropriateness of our jurisdiction under 28 U.S.C. Sec. 1291, contending that the August 10 decrees met all of the criteria required of immediately-appealable collateral orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Alternatively, Fiat requested that we treat its appeal as a petition for a writ of mandamus, thereby conferring jurisdiction under 28 U.S.C. Sec. 1651. After full briefing upon the jurisdictional issues, we entered an order on December 3, 1984 reserving those questions for decision until the time of hearing on the merits of Fiat's appeal. Incremental briefing and oral argument followed in due course.

Inasmuch as we conclude, for the reasons which are stated below, that this appeal is not seasonably before us, we have no occasion to attempt to calibrate the delicate balance of competing concerns which must eventually be struck in determining the force and effect of the Hague Convention in civil litigation throughout our federal court system. ⁴

II. COLLATERAL ORDER JURISDICTION.

Congress has empowered the federal courts of appeal to review "all final decisions of the district courts." 28 U.S.C. Sec. 1291. Discovery orders, in the ordinary course, are not considered "final", as the litigation in conjunction with which the discovery has been sought continues to pend in the district court. Grinnell Corp. v. Hackett, 519 F.2d 595, 596 (1st Cir.), cert. denied sub nom. Chamber of Commerce v. United Steelworkers of America, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975). Hence, such orders are not, usually, immediately appealable. Id. Fiat, however, argues that the exigencies of its situation warrant special treatment under the exception to the finality rule enunciated by the Court in Cohen, 337 U.S. at 545-47, 96 S.Ct. at 1225-26, and further explicated in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-172, 94 S.Ct. 2140, 2148-2150, 40 L.Ed.2d 732 (1974). To be eligible for review as a collateral order under the grace of Cohen, the ruling "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); see also Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981).

In this circuit,

"(f)our requisites of appealability have been gleaned from the Cohen opinion and the cases applying it. The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is "unfinished" or "inconclusive"; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court's discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979). See also, to like effect, In...