Lake v. Richardson-Merrell, Inc.

• Decision Date: 26 April 1982
• Docket Number: C80-1722 and C80-1723.,C80-569,C80-620,No. C80-561,C80-561
• Citation: 538 F. Supp. 262
• Parties: Josee LAKE, a minor by her natural parents and natural guardians, Claude Lake and Francine Lake, and Claude Lake and Francine Lake, in their own right, 8603 Henri-Julien Street Montreal, Canada, Plaintiffs, v. RICHARDSON-MERRELL, INC., c/o C. T. Corporation Union Commerce Building Cleveland, Ohio 44115, Defendant. Gilles HEBERT, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant. Omer COLLINS, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant. Paul HADDAD, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant. Marcel MORIN, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

538 F. Supp. 262

Josee LAKE, a minor by her natural parents and natural guardians, Claude Lake and Francine Lake, and Claude Lake and Francine Lake, in their own right, 8603 Henri-Julien Street Montreal, Canada, Plaintiffs, v. RICHARDSON-MERRELL, INC., c/o C. T. Corporation Union Commerce Building Cleveland, Ohio 44115, Defendant.

Gilles HEBERT, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant.

Omer COLLINS, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant.

Paul HADDAD, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant.

Marcel MORIN, et al., Plaintiffs, v. RICHARDSON-MERRELL, INC., Defendant.

Nos. C80-561, C80-569, C80-620, C80-1722 and C80-1723.

United States District Court, N. D. Ohio, E. D.

April 26, 1982.

COPYRIGHT MATERIAL OMITTED

Donald P. Traci, Spangenberg, Shibley, Traci & Lancione, Cleveland, Ohio and Arthur Raynes, Raynes, McCarty, Binder & Mundy, Philadelphia, Pa., for plaintiffs.

R. Crawford Morris, Arter & Hadden, Cleveland, Ohio and Peter N. Perretti, Jr., Morristown, N. J., for defendant.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Four days after this Court issued an order denying the defendant's motion to dismiss the five cases at bar on the ground of forum non conveniens,¹ the Supreme Court, in Piper Aircraft Co. v. Reyno, ___ U.S. ___, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reviewed the application of the doctrine of forum non conveniens to foreign plaintiffs. The defendant then filed a motion to reconsider this Court's order, on the ground that the Court had relied heavily on the Third Circuit's opinion in Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980), which the Supreme Court had reversed.

Because the Supreme Court's opinion deals with almost precisely the same issue that these five cases present, the Court granted the motion to reconsider and held oral argument on February 10, 1982. Having reviewed its prior order in these cases, the Supreme Court's opinion in Reyno, and the extensive briefs submitted by the parties for the motion to dismiss and the motion to reconsider, the Court again denies the defendant's motion to dismiss on the ground of forum non conveniens, but modifies its order of December 4, 1981 (as modified by its January 5, 1982 order) as follows:

Josee Lake, Gilles Hebert, Omer Collins, Paul Haddad, Marcel Morin, and the parents of each instituted actions in this Court against Richardson-Merrell, Inc. (hereinafter RMI), to recover damages for injuries allegedly suffered as a result of the alleged ingestion by the mothers of these five plaintiffs of thalidomide and/or bendectin, so-called morning sickness drugs sold and distributed by RMI. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332 (1976). RMI has filed a motion to dismiss all five cases on the ground of forum non conveniens.² Because it has failed to show that the proposed alternative forums are more convenient than this Court, RMI's motion to dismiss for forum non conveniens is denied.

I. Factual Background and Arguments of the Parties

The plaintiffs are citizens of Canada. Josee Lake, Paul Haddad, Marcel Morin, and their parents currently reside in Quebec; Gilles Hebert and his parents, in New Brunswick; and Omer Collins and his parents, in Ontario.

Each of the children-plaintiffs was born in the early 1960s with birth defects, which the plaintiffs have alleged were proximately and actually caused by thalidomide and/or bendectin, drugs the mothers allegedly ingested when pregnant with the children. Josee Lake and Gilles Hebert were born in Quebec; Omer Collins and Paul Haddad, in Ontario; and Marcel Morin, in Saskatchewan. The plaintiffs based their claims against RMI on theories of negligence, strict liability, breach of implied and express warranties, and wanton recklessness. RMI denied or claimed a lack of information or belief as to these allegations.

RMI filed motions to dismiss each case for forum non conveniens, arguing that the factors to be balanced under this doctrine justified a finding that the Canadian courts are a more convenient forum than this Court.³ The defendant concluded that, "in the instant matter there is no necessity to engage in an end process of weighing, balancing, and tallying." Brief in Support of Defendant's Motion to Dismiss on the Ground of Forum Non Conveniens at 46, Lake v. Richardson-Merrell, Inc., No. C80-561 (N.D.Ohio, filed April 14, 1980) (hereinafter cited as Defendant's Brief).⁴

The plaintiffs responded, in essence, that since the factors to be balanced did not weigh heavily in the defendant's favor, the Court should not disturb the plaintiffs' choice of forum.⁵ They urged, "This Court should summarily determine that this Ohio defendant ... is answerable in Ohio." Brief in Opposition to Motion to Dismiss on Grounds of Forum Non Conveniens at 9-10 (hereinafter cited as Plaintiff's Brief).

While both sides have presented strong arguments for the disposition of this motion, they are both wrong to urge the Court to decide the issue summarily. The doctrine of forum non conveniens implicates matters of private concern and public policy that a court must carefully balance to determine whether to keep an action or to dismiss it, not because jurisdiction is lacking, but because another forum is more appropriate.

II. The Doctrine of Forum Non Conveniens

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court, acknowledging that the doctrine of forum non conveniens is applicable in the federal courts, described the factors that a district court judge should weigh to dispose of such a motion. The federal courts have not clearly decided whether the factors are to be weighed in accordance with state law or federal common law, but where, as in Ohio, the law is similar in both jurisdictions, the question need not be decided. See id. at 509, 67 S.Ct. at 843.

According to this doctrine, a court may reject jurisdiction in a case even where jurisdiction is authorized by a general venue statute. But unless the factors weigh heavily in the movant's favor, the district judge, who has wide discretion to dismiss or keep a case, should not dismiss a case on this basis. Id. at 507-08, 67 S.Ct. at 842-43.

RMI has contended, citing Ionescu v. E. F. Hutton & Co., 465 F.Supp. 139, 143 (S.D.N.Y.1979), that the choice of forum of foreign plaintiffs is entitled to less weight than the choice of a resident of the United States. Defendant's Brief, supra, at 23. Although the circuits had been divided on the issue, the Supreme Court recently upheld this position. While it noted that when a resident or citizen chooses a home forum, "it is reasonable to assume that this choice is convenient," the Court concluded that "when the plaintiff is foreign, ... this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference." Piper Aircraft Co. v. Reyno, ___ U.S. at ___, 102 S.Ct. at 266.

Because the allegedly more convenient forums in these cases are not within the federal judicial system, the Court can only either (1) keep the cases or (2) dismiss them with or without prejudice and/or with conditions, e.g., that the movant submit to service of process in the forum it alleges is more convenient. See, e.g., id.; Hoffman v. Goberman, 420 F.2d 423, 425 (3d Cir. 1970).⁶

To move for dismissal on the ground of forum non conveniens, a defendant must first show that there is at least one alternative forum in which it may be sued. Piper Aircraft Co. v. Reyno, ___ U.S. at ___ n.22, 102 S.Ct. at 265; see Gulf Oil Corp. v. Gilbert, 330 U.S. at 506-07, 67 S.Ct. at 842. Although the defendant can usually meet this requirement when he is "amenable to process" in the other jurisdiction, occasionally "where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative ...." Piper Aircraft Co. v. Reyno, ___ U.S. at ___ n.22, 102 S.Ct. at 264 n.22.

Once the defendant has shown the existence of an alternative forum, it must make a compelling showing that the alternative forum is more convenient than the one the plaintiff chose. Where a foreign plaintiff has chosen a United States court, however, the defendant's burden is somewhat lighter. See id. at ___, 102 S.Ct. at 268.

The Supreme Court, in Gilbert, explained that, to decide a forum non conveniens motion, a court must first consider private factors that affect the parties themselves, and then the public factors, which involve court administration. No one factor by itself is dispositive of the motion, and unless the defendant shows that retaining jurisdiction will cause manifest injustice, the court should not dismiss the case. Hoffman v. Goberman, 420 F.2d at 428; see Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Balancing the factors is entrusted to the sound discretion of the district judge, whose decision on such a motion will not be overturned unless he clearly has abused his discretion. Piper Aircraft Co. v. Reyno, ___ U.S. at ___, 102 S.Ct. at 266; Gulf Oil Corp. v. Gilbert, 330 U.S. at 507-08, 67 S.Ct. at 842-43.

The private factors, which involve the "advantages and obstacles" to a fair trial, include:

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.

In weighing these factors, the court should consider whether the plaintiff chose an inconvenient forum to vex or harass the defendant "by inflicting upon him expense or trouble not necessary to his own...