Friday, May 01, 2009
Ind. Decisions - One Indiana decision today from 7th Circuit
In Abad et al. v. Bayer Corp.(ND Ill.) / Pastor v. Bridgestone/Firestone (SD Ind., Judge Barker), a 19-page opinion, Judge Posner writes:
We have consolidated for decision two appeals (Abad and Pastor) that present similar issues concerning the doctrine of forum non conveniens (“inappropriate forum”). The doctrine allows a court to dismiss a suit if there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. In both our cases the plaintiffs are Argentine citizens, resident in Argentina, who filed products-liability suits in federal district courts against American manufacturers under the diversity (technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) jurisdiction for injuries sustained in Argentina. In each case the district judge, on the defendants’ motion, after considerable pretrial discovery, invoked forum non conveniens and dismissed the case in favor of the courts of Argentina. The plaintiffs have appealed; dismissal of a case on grounds of forum non conveniens is deemed a final judgment appealable under 28 U.S.C. § 1291 even though it does not end the litigation. [cites omitted] * * *
[Abad] When the decision of a case is uncertain because the orthodox sources of law do not provide adequate guidance (apparently no code provision or judicial decision in Argentina accepts or rejects marketshare liability), the court asked to decide must make law, in this case Argentine law; and an Argentine court is the more competent maker of Argentine law—more competent in the sense of more legitimate, but also more competent in the sense of being better able to decide the case correctly because more at home in the relevant legal tradition than an American court would be. * * *
[Pastor] In support of the district judge’s order we note that the case will not remain in Indianapolis in any event; it will go to Florida for trial if it does not go to Argentina. Proceedings in two courts would not be avoided even if we reversed the order dismissing the suit. In neither case did the judge abuse his or her discre- tion, and therefore the judgments are AFFIRMED.
Posted by Marcia Oddi on May 1, 2009 12:48 PM
Posted to Ind. (7th Cir.) Decisions