Dahl v. United Technologies Corp.

• Decision Date: 19 May 1980
• Docket Number: B,No. 79-2599,I,A,No. 79-2597,No. 79-2598,No. 79-2596,Nos. 79-2596,79-2596,79-2597,79-2598,79-2599,s. 79-2596
• Citation: 632 F.2d 1027
• Parties: Maren DAHL, Personal Representative of the Estate of Stale Dahl, Deceased, Appellant innne Marie DRANGELD, Personal Representative of the Estate of Olan Drangeld, Deceased, Appellant injord Turid FOSEN, Personal Representative of the Estate of Jan Fosen, Deceased, Appellant inngunn KOPPERGARD, Personal Representative of the Estate of Age Koppergard, Deceased, Appellant in, v. UNITED TECHNOLOGIES CORPORATION. to 79-2599. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1027

632 F.2d 1027

Maren DAHL, Personal Representative of the Estate of Stale Dahl, Deceased Appellant in No. 79-2596, Anne Marie DRANGELD, Personal Representative of the Estate of Olan Drangeld, Deceased, Appellant in No. 79-2597 Bjord Turid FOSEN, Personal Representative of the Estate of Jan Fosen, Deceased, Appellant in No 79-2598, Ingunn KOPPERGARD, Personal Representative of the Estate of Age Koppergard, Deceased, Appellant in No. 79-2599, v. UNITED TECHNOLOGIES CORPORATION.

Nos. 79-2596 to 79-2599.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) May 19, 1980.

Decided Aug. 7, 1980.

As Amended Nov. 12, 1980.

Marvin I. Barish, Jack L. Gruenstein, Philadelphia, Pa., John Biggs III, Wilmington, Del., Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., Biggs & Battaglia, Wilmington, Del., for appellants.

Rodney M. Layton, Allen M. Terrell, Jr., William J. Wade, Richards, Layton & Finger, Wilmington, Del., for appellee.

Submitted Under Rule 12(6) May 19, 1980

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Four wrongful death actions arising from a helicopter crash in the icy waters of the North Atlantic filed by Norwegian citizens provide the legal setting for our consideration of whether the United States District Court for the District of Delaware erred in dismissing the actions on the ground of forum non conveniens. The district court determined that trial of the suits properly belonged in the Norwegian courts because this would best serve both the private interests of the parties and the public interest in the lawsuit. All plaintiffs appeal the dismissals. We affirm.

I.

On November 23, 1977, a helicopter designed and manufactured by the defendant, United Technologies Corp. (UTC), crashed into the North Sea off the coast of Norway during a storm. At the time of the crash, the helicopter was carrying employees of the Phillips Petroleum Company to a drilling rig in the North Sea. Plaintiffs' decedents were passengers aboard the helicopter. Tragically, there were no survivors of the crash and the cause of the crash is in dispute.

The helicopter involved was a model S-61N manufactured in 1970 by the Sikorsky Division of UTC in Connecticut. It was sold on November 10, 1970, by United Aircraft International, Inc., a subsidiary of UTC, to All Nippon Airways Co., Ltd., a Japanese corporation, pursuant to a lease agreement with option to purchase. The helicopter was delivered to All Nippon on January 5, 1971, in Connecticut. In accordance with the lease agreement, UTC assisted with the routine maintenance of the helicopter for a three-month period following delivery. This was the last contact that UTC, or its subsidiaries, had with the helicopter. In April 1976, All Nippon sold the aircraft to Helikopter Service A/S, a Norwegian company that only does business in Norway. The latter owned and operated the helicopter when it crashed.

The actions involved in this appeal were commenced in the District Court of Delaware on August 23, 1978. UTC moved to dismiss the complaints on the ground of forum non conveniens. The motion was granted by Chief Judge Latchum on June 9, 1979, Dahl v. United Technologies Corp., 472 F.Supp. 696 (D.Del.1979), and this appeal followed.

II.

The principle of forum non conveniens permits a court to decline jurisdiction even though venue and jurisdiction are proper, on the theory that for the convenience of the litigants and the witnesses, the action should be tried in another judicial forum. See 1 Moore's Federal Practice P 0.145(2) at 1581-82 (2d ed. 1979). The principle originated in state courts concerned with misuse of venue but was formally recognized in the federal courts in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). Forum non conveniens presupposes the existence of two judicial forums each possessing jurisdiction and venue over the action, but posits that one forum may resist invocation of its jurisdiction when trial of the action would more appropriately proceed in the other forum. Courts know from experience that the selection of a forum is sometimes dictated not only by the search for justice but the temptation of the plaintiff "to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." Gulf Oil Corp. v. Gilbert, 330 U.S. at 507, 67 S.Ct. at 842. Therefore, it is a matter of the district court's discretion whether or not to decline jurisdiction on forum non conveniens grounds and "experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses of discretion." Id. at 508, 67 S.Ct. at 843. Our task, therefore, is to determine whether the district court abused its discretion in renouncing jurisdiction and declaring that the Norwegian courts should be the judicial forum for these lawsuits.

Initially we note that the district court found that Norway would be a suitable forum to try these cases. Under Delaware conflict of laws rules, Norwegian law applies to plaintiffs' tort causes of action. Thus, choice of the Norwegian forum would not alter the substantive law to be applied to those causes of action. Nor is there, as plaintiffs contend, a jurisdictional impediment to resolution of this lawsuit in the Norwegian forum. Plaintiffs' assertion that UTC "is not really present in Norway" is merely a conclusory characterization of the facts having no legal significance. See note 1 infra. Moreover, UTC has in these proceedings expressly consented to personal jurisdiction in Norway and the district court has expressly ordered that dismissal of these actions be conditional on UTC's consent to jurisdiction. We find no error in this ruling and accordingly agree with Chief Judge Latchum that Norway is a suitable forum. ¹

We must therefore consider whether the district court was correct in concluding that Norway was the more appropriate forum. In Gulf Oil, supra, the Supreme Court enunciated various considerations which district courts should examine in deciding whether to decline jurisdiction on the basis of forum non conveniens. These concerns may be roughly broken down into factors relating to the private interests of the litigants and those relating to public interest in the outcome and administration of the case. Even though we may not overturn the district court's order absent an abuse of discretion, we must keep in mind that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843.

A. Private Interests

The first set of interests which we must review are those relating primarily to the private litigants. The Supreme Court in Gulf Oil enumerated various factors pertaining to the private interests which the court should weigh in a motion to dismiss on forum non conveniens grounds.

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained.

330 U.S. at 508, 67 S.Ct. at 843. Turning to the first of these considerations, the ease of access to sources of proof, the district court in this case concluded:

No evidence relevant to the claims asserted by the plaintiffs is located in Delaware. These actions arose out of a crash of a Norwegian owned and operated helicopter in the territorial waters of Norway. The recovered parts of the wreckage are located in Norway. The helicopter was based and maintained in Norway and its maintenance, flight and operational records are located there. The Norwegian Civil Aviation Administration is currently conducting an investigation into the probable cause of the accident.

In addition to the demonstrative and documentary evidence just mentioned, a substantial amount of the testimonial evidence will come from Norwegians. Testimony from persons who knew the decedents will be relevant to the damages issue. Among the potential liability witnesses are employees of Helikopter Service A/S, employees from other firms in Norway that serviced or made installations on the helicopter, and the Norwegian government officials who investigated the accident. UTC could not compel the attendance of these Norwegian witnesses at trial in Delaware. Nor could it compel production here of any real or documentary evidence in Norway.

472 F.Supp. at 700 (emphasis added). On appeal, plaintiffs contend that the sources of proof they seek are in the United States. They claim that the theory of the suit will be the "faulty design and/or manufacture" of the helicopter by UTC. All the records concerning UTC's design and manufacture, as well as the engineers and production workers, are in the United States. All testing of the aircraft was done in the United States and it was approved in accordance with FAA regulations. All records dealing with governmental approval of the aircraft are in the United States.

UTC, however, has agreed to make witnesses and documents under its control available to the plaintiffs in Norway should this case be dismissed. Thus, plaintiffs will have access to all records germane to their strict liability theory. Plaintiffs respond, however, that not all relevant material is under UTC's control; e. g., various witnesses may no longer be UTC employees.

We believe that on balance the district court did not err in concluding that access to materials and witnesses militated in favor of a Norwegian forum. Although evidence relating to a strict liability theory appears to be...