JF Pritchard & Co. v. Dow Chemical of Canada, Ltd.

• Decision Date: 29 June 1972
• Docket Number: No. 71-1552.,71-1552.
• Parties: J. F. PRITCHARD AND COMPANY, Appellant, v. DOW CHEMICAL OF CANADA, LIMITED, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.2d 998 (1972)

J. F. PRITCHARD AND COMPANY, Appellant, v. DOW CHEMICAL OF CANADA, LIMITED, Appellee.

No. 71-1552.

United States Court of Appeals, Eighth Circuit.

Submitted April 11, 1972.

Decided June 29, 1972.

James F. Duncan, Kansas City, Mo., Allan L. Bioff, Kansas City, Mo., Thomas R. McDade, Houston, Tex., for appellant; Watson, Ess, Marshall & Enggas, Kansas City, Mo., Fulbright, Crooker & Jaworski, Houston, Tex., of counsel.

John C. Thurlo, Kansas City, Mo., Richard K. Andrews, Kansas City, Mo., for appellee; Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, Mo., of counsel.

Before Mr. Justice CLARK,^* and VOGEL and LAY, Circuit Judges.

Mr. Justice CLARK.

This appeal is here on a dismissal, without prejudice, on the ground of forum non conveniens of the complaint of appellant J. F. Pritchard and Company to recover an alleged balance of $339,000 due to appellant assignee of its subsidiary, Pritchard Canadian, Ltd. on a contract performable in Canada between the subsidiary and the appellee Dow Chemical of Canada, Ltd. The trial judge, in a first-rate opinion, concluded that even though the assignment by Pritchard Canadian, Ltd. to J. F. Pritchard & Co. "is legally sufficient to establish jurisdiction in this Court, it is clearly apparent that, considering all relevant factors, jurisdiction should be declined by this Court under the doctrine of forum non conveniens." J. F. Pritchard and Company v. Dow Chemical of Canada, Ltd., 331 F.Supp. 1215 (1971). We agree and the judgment is affirmed.

1. The doctrine of forum non conveniens as enunciated in 28 U.S.C.A. § 1404(a) states: "For the convenience of the parties and the witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Only the year before the Supreme Court had held that the doctrine was available in federal courts and that a court could dismiss a suit though it had jurisdiction and venue if there existed another forum so much more convenient for the parties and the courts that the plaintiff's privilege of choosing his forum was outweighed. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). Most of the decisions following Collett and Section 1404(a) reflect how a court has weighed the various factors involved in a dismissal or transfer. It is clear, however, that the problem is "peculiarly one for the exercise of judgment by those in daily proximity to these delicate problems of trial litigation." Lykes Bros. SS Inc. v. Sugarman, 272 F.2d 679 (2 Cir. 1959). The same circuit earlier had quipped with reference to the problem that at best the judge must guess, and we should accept his guess unless it is too wild. At 680. And Mr. Justice Jackson put it both more sedately and clearly in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), when he said that forum non conveniens means "simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute . . . A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." At 507, 67 S.Ct. at 843. And, he added:

"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."

My brother Jackson then proceeded to adumbrate some factors to be considered including the private interest of the litigant; the relative ease of access to sources of proof; the availability of compulsory process on the unwilling and the cost of obtaining the presence of the willing witnesses, documents, etc.; the possibility of viewing the premises involved and "all other practical problems that make trial of a case easy, expeditious and inexpensive," such as the enforceability of a judgment once obtained and the relative advantages and obstacles to fair trial. At 508, 67 S.Ct. at 843. Finally, the Justice admonished: "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." We believe that this is one of those rare instances.

In its opinion the district court outlined the factors it considered controlling i. e. the contract was executed by Canadian companies in Canada and was performable there, with the sole exception of "some of the design work" that was done in Missouri; none of the equipment suppliers were located in Missouri nor was any of the fabrication or construction work done there; and finally, that the majority of the work under the contract was done in Ontario, Canada. The opinion also noted that the contract calls for the application of Canadian law and that any judgment obtained in Missouri would have to be enforced in Canada. It also pointed out that a suit was pending in the Ontario Supreme Court involving the construction of the plant involved in the contract in which all of the parties involved, including appellant, were before the Canadian court. We believe it might be helpful if we added a short statement to the able discussion given the problem by the trial judge.

2. The negotiations leading up to the contract providing for the designing, engineering and construction of the Dow plant in Canada were initiated by Dow in 1964 and were held largely in Kansas City, Missouri. At the specific instance of the appellant, the contract was drawn in the name of appellant's Canadian subsidiary, Pritchard Canadian, Ltd. and was executed by the latter and Dow in Canada on September 23, 1964. However, Pritchard Canadian, Ltd. had only a few employees in Canada, primarily salesmen and clerks and appellant therefore opened a construction office there on December 14, 1964, and continued to maintain it until after the Dow plant was completed i. e. August 10, 1965. Appellant...