935 F.2d 604 (3rd Cir. 1991), 90-3522, Lony v. E.I. Du Pont de Nemours & Co.

Docket Nº:90-3522.
Citation:935 F.2d 604
Party Name:Adolf LONY, Appellant, v. E.I. DU PONT de NEMOURS & COMPANY, Appellee.
Case Date:June 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 604

935 F.2d 604 (3rd Cir. 1991)

Adolf LONY, Appellant,



No. 90-3522.

United States Court of Appeals, Third Circuit

June 7, 1991

Argued Nov. 6, 1990.

Page 605

[Copyrighted Material Omitted]

Page 606

Paul F. Doyle (argued), Alan R. Kusinitz, Steven E. Bizar, Kelley, Drye & Warren, New York City, Richard K. Herrmann, Bayard, Handelman & Murdoch, P.A., Wilmington, Del., for appellant.

William H. Sudell, Jr. (argued), Donald F. Parsons, Jr., Luke W. Mette, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellee.

Before SLOVITER, Chief Judge [*], SCIRICA and ALITO, Circuit Judges.


SLOVITER, Chief Judge.

This case comes before us for a second time on Adolf Lony's appeal of a district court order dismissing its complaint against E.I. Du Pont de Nemours & Co. (Du Pont) on the basis of forum non conveniens. We vacated an earlier order of the district court that dismissed the action on the same basis and remanded for further proceedings in light of our opinion. Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628 (3d Cir.1989) (Lony I ). On remand, after the parties had conducted substantial merits discovery, after the court had set a trial date, and after Du Pont made a concession which could have a significant bearing on its liability, Du Pont renewed its motion to dismiss on the basis of forum non conveniens, predicated in part on additional evidence. Over the objection of Lony that the remand neither contemplated nor permitted that procedure, the district court revisited the issue and again concluded that the action should be dismissed on forum non conveniens grounds.


Facts and Procedural History

Our opinion in Lony I contains a thorough review of the facts leading to this action, so we will only briefly summarize the relevant facts as well as events that occurred subsequent to our earlier opinion. Appellant Adolf Lony is a sole proprietorship based in the Federal Republic of Germany. It buys cellophane from manufacturers such as Du Pont and Wolff Walsrode AG (a German corporation not a party here) and processes it for sale as food wrappings. Du Pont is a Delaware corporation with its principal place of business in that state. At the time it did business with Lony, Du Pont manufactured cellophane at a plant in Kansas that it has since sold to a nonparty, Flexel, Inc.

In 1985, Lony bought cellophane from Du Pont, processed it into candy wrappers, and sold it to its largest customer, Haribo, a German corporation. Haribo sought assurances that the cellophane did not contain diethylene glycol (DEG), a toxic chemical about which there had been a recent public health scare in Europe. Lony sought confirmation from Du Pont, as well as from its other supplier, Wolff, that the cellophane it purchased contained no DEG. Du Pont told its distributor, Transparent Paper Ltd., from whom Lony purchased the Du Pont product, that the cellophane contained no DEG.

The key representation at issue in this case is the following statement in a letter of October 17, 1985 by William Percival of the Regulatory Affairs Group of Du Pont's Polymer Products Department to Transparent:

In response to your question to W. Pierce, I am informing you that there is no diethylene glycol in any type of Du Pont Company Cellophane Film handled by your Company.

Page 607

I trust this provides the assurance you were seeking.

App. at 786. Transparent transmitted the response to Lony, which alleges that in reliance on this representation it shipped the wrappers to Haribo. Haribo later tested the cellophane it received from Lony, found traces of DEG, and cancelled its contracts with Lony. Lony claims it suffered substantial losses.

Lony brought this action in June 1988 in the district of Delaware against Du Pont, alleging tortious misrepresentation, common law fraud, statutory fraud, breach of warranty, and breach of fiduciary duty. Simultaneously with its answer, Du Pont filed a motion to dismiss the case on forum non conveniens grounds. After discovery limited to that issue, the court granted the motion to dismiss subject to several conditions imposed upon Du Pont that were designed to ensure Lony could institute the action in Germany. On appeal by Lony, this court vacated the dismissal order, concluding that the district court had made legal errors in assessing how the balance of private interest components of the forum non conveniens analysis affected the dismissal of the action, and that it abused its discretion both in assessing the public interest factors and in failing to give adequate consideration to the amount of deference due to Lony's choice of forum. Lony I, 886 F.2d at 634, 643-44.

On remand, the district court set a trial date and allowed merits discovery to proceed with a deadline of November 1990. Du Pont renewed its motion to dismiss. After extensive discovery proceedings from December 1989 through April 1990, the district court, in response to a motion by Du Pont, allowed both parties to submit additional evidence relevant to the forum non conveniens analysis. The court then heard oral argument and again dismissed Lony's complaint on forum non conveniens grounds, once more contingent on several conditions to which Du Pont agreed. One of these conditions was that Du Pont would stipulate to one of the significant facts it had earlier vigorously denied: that the cellophane it sold to Lony contained "small amounts" of DEG. Du Pont further stipulated that it would make available documents, witnesses and other evidence from its former cellophane plant that are now in control of Flexel, Inc. It based that stipulation on a letter it received from Flexel's attorney promising that Flexel would "make reasonably available to both Du Pont and Lony relevant Flexel witnesses and documents." App. at 1354.

Lony now appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988). Our scope of review is limited because a "forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); see also Lony I, 886 F.2d at 631.




Lony initially argues that the district court improperly ignored both the letter and spirit of this court's mandate when it permitted Du Pont to reopen the record with respect to the forum non conveniens issue more than four months after the remand and after substantial merits discovery was underway. Lony argues that because this court "reversed" for legal errors rather than factual deficiencies, the district court was not free to reopen the issue or, at the very least, should not have considered matters that were in or could have been in the record at the time of its original consideration of this issue.

We note at the outset that this court did not reverse the district court's order but instead vacated that order and remanded for further consideration in light of our opinion. Although there may have been some expectation by this court at the time of its opinion that the district court's reconsideration would be on the basis of the factors and evidence then before it, that was never made explicit in our opinion. We have carefully reviewed our opinion in Lony I and see no indication that we limited

Page 608

the district court to the then existent record. Thus, we cannot agree with Lony that the district court's decision to revisit the issue based on allegedly new evidence was a violation of the mandate.

We do not suggest that the appropriateness of dismissal on forum non conveniens grounds is or should be an open issue throughout the proceedings in the district court. While there may be some issues which fall within that category, see e.g., Fed.R.Civ.P. 23(c)(1) (explicitly providing that an order on the maintenance of a class action "may be conditional, and may be altered or amended before the decision on the merits"), the interests of judicial expediency require that there must come an end to litigation on the forum non conveniens issue, particularly when there has been substantial activity with regard to the merits of the dispute. Nonetheless, we are not prepared to enunciate a rule precluding the district court from reconsidering the issue on an expanded record in all circumstances, although we assume that such reconsideration will be limited to exceptional circumstances. In any event, because we believe that the extent of the activities on the merits already undertaken in the district court is a significant factor which must be considered in addition to the balancing of the public and private interest factors, Lony's objections in this regard will be taken up hereafter.


This case is puzzling in that frequently the forum non conveniens issue is raised by a defendant sued away from home who seeks to convince the court that the balance of relevant factors should be tipped against requiring it to defend in a forum far from its home jurisdiction. See, e.g., Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). Here, in contrast, Du Pont, which is headquartered in Wilmington, Delaware, and is the largest employer in that state, seeks to move the action against it to a forum more than 3,000 miles away. It is, as Alice said, "curiouser and curiouser." Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 510, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) (referring to plaintiff who objected to suit in his home community as making a "strange argument").

Our earlier opinion adheres to the jurisprudence of the doctrine of forum non conveniens laid out by the Supreme Court, principally in Gilbert and Piper. The parties agree that the district court has...

To continue reading