Grodinsky v. Fairchild Industries, Inc.

• Decision Date: 03 February 1981
• Docket Number: Civ. A. No. M-80-722 to M-80-728 and M-79-2330.
• Citation: 507 F. Supp. 1245
• Parties: William S. GRODINSKY, et al. v. FAIRCHILD INDUSTRIES, INC.
• Court: U.S. District Court — District of Maryland

507 F. Supp. 1245

William S. GRODINSKY, et al. v.FAIRCHILD INDUSTRIES, INC.

Civ. A. Nos. M-80-722 to M-80-728 and M-79-2330.

United States District Court, D. Maryland.

February 3, 1981.

Evans W. North, Washington, D. C. and J. Willard Nalls, Jr., Bethesda, Md., for plaintiff.

James L. Shea and Charles Iliff, Jr., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

This litigation arose out of the crash of Quebecaire flight # 255 at Ancienne Lorette Airport in Quebec, Canada, on March 29, 1979.The plaintiff in Civil ActionNo. M-79-2330(the Proulx case) is the representative of the estate of a deceased passenger.The plaintiffs in Civil ActionNos. M-80-722 through M-80-728, are passengers who were allegedly injured in the same airplane crash.All plaintiffs are subjects of the Dominion of Canada and reside in that country.DefendantFairchild Industries, Inc.(Fairchild), is a Delaware corporation with its principal place of business in Maryland.

The F-27 aircraft involved in the crash was manufactured, partially redesigned, and tested at Fairchild's place of business in Maryland.The aircraft was delivered to Quebecaire on September 17, 1958, at Hagerstown, Maryland, and was equipped with Dart-6 engines manufactured by Rolls Royce (Canada), Ltd., an English corporation operating in Quebec.Plaintiffs sue under theories of negligence, breach of express and implied warranties, and strict liability.Neither Quebecaire nor Rolls Royce (Canada), Ltd., have been named as defendants in the actions pending in this court.

I.History of the Case

The Proulx case, Civil ActionNo. M-79-2330, was originally filed in the United States District Court for the Eastern District of New York as 79 Civ. 1890, on July 23, 1979(PaperNo. 2).Subsequently, plaintiff sought to have Proulx consolidated with Cavagnaro v. Fairchild Industries, Inc., 79 Civ. 1889, an action involving the same airplane crash brought by a resident of New York on behalf of a deceased passenger (PaperNo. 6).

Defendant, in Proulx,79 Civ. 1890, filed a motion to dismiss on the ground of forum non conveniens(PaperNo. 5).Plaintiff opposed that motion contending that Proulx,79 Civ. 1890, should be tried in New York with the Cavagnaro case.Plaintiff also suggested that if the court found Maryland to be a more appropriate forum than New York, the case could be transferred to the District of Maryland rather than dismissed.(PaperNo. 7).

A hearing on defendant's motion to dismiss was held before Judge Charles P. Sifton on October 26, 1979(PaperNo. 9).Plaintiff's motion to consolidateProulx,79 Civ. 1890, with Cavagnaro,79 Civ. 1889, was not considered because the latter case had been settled.As to defendant's motion to dismiss on the ground of forum non conveniens, Judge Sifton ruled as follows:

"I find New York is not the proper forum for this law suit, and that neither the private interest of the litigants or the public interest favor its being retained here.But at the same time I find it inappropriate at this stage to dismiss in favor of prosecution of law suit in Quebec, and I do that after looking at the large number of factors that have been presented to me.

Among those factors are the choice of the plaintiff.Of course, the choice of the plaintiff initially was not Maryland but it was for litigation in this country and the choice was, I find, not on its face designed to harass the defendant.The law suit was combined with another law suit being handled by the same law firm in this District in which the plaintiffs were New York citizens seeking relief from New York courts and New York juries.

I also take into account the rights which undoubtedly the Canadian plaintiffs, as they are entitled to, undoubtedly have in mind in seeking relief in this country, that is, the right to pursue punitive damages, if they are appropriate, and the right to a jury trial, if that is appropriate.

At the same time it bears noting that going to Maryland the jury which they are invoking is a jury of citizens who have undoubtedly some interest, which one might feel might favor the defendants.

The fact that the cause of action as it is outlined at this initial stage of litigation appears to be an action arising out of product liability, and that the records with regard to the design and the other issues which go into a product liability case strictly viewed are in Maryland is also a fact that I take into account.

Combining those factors in what appears to me to be a close case, even recognizing the rule of Gilbert, that the plaintiff's choice of forum is to be respected unless the factors weigh heavily against it, I think here they do weigh heavily against the choice of New York, and it points to Maryland as the next best solution.

As I say, however, the matter is sufficiently close so that it bears re-examining in the light of what I take will be the Maryland Court's better view of its own interest, and accordingly I will dismiss without prejudice of the renewal of the application in Maryland."

Paper No. 9, at 15-17(emphasis supplied).

In accordance with his ruling, Judge Sifton, pursuant to 28 U.S.C. § 1404(a), orderedProulx,79 Civ. 1890, to be transferred to the District of Maryland, without prejudice to defendant's right to renew its forum non conveniens motion.(PaperNos. 10 & 11).

After the Proulx case was docketed in this District, seven passengers allegedly injured in the Quebecaire crash filed complaints in this Court, seeCivil ActionNos. M-80-722 through M-80-728.Fairchild then filed a motion to consolidate all cases involving the crash (PaperNo. 30), which was granted by Order dated July 2, 1980(PaperNo. 38).¹These consolidated cases are now before the court on Fairchild's motion to dismiss for forum non conveniens(PaperNo. 3).

Before examining the merits of Fairchild's motion, the court is constrained to address plaintiffs' preliminary objections to this court's entertaining defendant's motion.Plaintiffs first contend that the transferor court exceeded its authority by allowing Fairchild to renew in this court its motion to dismiss after transferring the Proulx case, 79 Civ. 1890, pursuant to 28 U.S.C. § 1404(a).Plaintiffs' second contention is that once a case has been transferred under section 1404(a), "the law of the case is established" such that the transferee court may not dismiss for forum non conveniens.Both contentions are without merit.

A section 1404(a) transfer order is not reviewable by the transferee court.Starnes v. McGuire,512 F.2d 918, 924(D.C. Cir.1974).SeePreston Corp. v. Raese,335 F.2d 827, 828(4th Cir.1964).This court, therefore, is not at liberty to question directly the propriety of Judge Sifton's decision.On the other hand, a transfer order pursuant to section 1404(a) has no res judicata effect.Hoffman v. Blaski,363 U.S. 335, 340 n. 9, 80 S.Ct. 1084, 1088 n. 9, 4 L.Ed.2d 1254(1960).Consequently, this court may make an independent determination as to whether this action should proceed in this District.SeeBuhl v. Jeffes,435 F.Supp. 1149, 1151-52(M.D.Pa.1977);Central GMC, Inc. v. E.T. & T. Leasing, Inc.,371 F.Supp. 437, 438(D.Md.1974).The timing of a forum non conveniens motion rests in the sound discretion of the district court.Snam Progetti S.P.A. v. Lauro Lines,387 F.Supp. 322, 323(S.D.N.Y.1974), and Fairchild cannot be said to have waived its right so to move in this District.Fairchild advocated dismissal, rather than transfer, while the case was pending in the Eastern District of New York.Cf.Insurance Company of North America v. Ozean/Stinnes-Linien,367 F.2d 224, 226-27(5th Cir.1966)(party who had moved successfully in Louisiana for a transfer cannot, after transfer to Georgia, move for the first time for dismissal).The approach advocated by plaintiffs would bar a court from ever dismissing or retransferring a case once an initial section 1404(a) transfer had been ordered.This would defeat the equitable purposes underlying these rules.

II.The Forum Non Conveniens Analysis

The common law doctrine of forum non conveniens has enjoyed limited application in the federal courts subsequent to the enactment of section 1404(a) in 1948.The doctrine has retained vitality, however, primarily when the "more convenient forum" is a foreign country, rather than another federal district.See, e. g., Schertenleib v. Traum,589 F.2d 1156, 1163(2d Cir.1978);DeMateos v. Texaco, Inc.,562 F.2d 895, 899(3d Cir.1977), cert. denied,435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 494(1978);Yerostathis v. A. Luisi, Ltd.,380 F.2d 377, 379(9th Cir.1967).See alsoPoe v. Marquette Cement Mfg. Co.,376 F.Supp. 1054, 1060(D.Md.1974)(doctrine also applicable where only alternative forum is state court).

Numerous federal cases have discussed the doctrine of forum non conveniens under factual circumstances similar to those presented in this case.See, e. g.Dahl v. United Technologies Corp.,632 F.2d 1027, 15AviationCas. 18, 352(CCH)(3d Cir., 1980);Reyno v. Piper Aircraft Co.,630 F.2d 149(3d Cir.1980);Michell v. General Motors Corp.,439 F.Supp. 24(N.D.Ohio1977);Del Rio v. Ballenger Corp.,391 F.Supp. 1002(D.S.C.1975).All analyses, however, center upon the Supreme Court's seminal pronouncement in Gulf Oil Corp. v. Gilbert,330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055(1947).In that casethe Court recognized that federal district courts have inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens.330 U.S. at 504-05, 67 S.Ct. at 840-41.Although the need to exercise this power has diminished considerably since the enactment of section 1404(a), it nevertheless remains a viable remedy in the appropriate case.Accordingly, when there exists an alternative forum and transfer under section 1404(a) is not an option, the district court may dismiss for forum non conveniens if the defendant has carried its burden...