OPINION OF THE COURT
This is аn appeal from a dismissal of a wrongful death action on grounds of forum non conveniens. The issues include the factors to be considered in such a dismissal, the burden of persuasion on such motion, the scope of the trial judge’s discretion, and the application of choice of law rules of California and Pennsylvania.
The event giving rise to this dispute was the crash of a Piper aircraft in Scotland in July 1976. The plane was owned by a Scottish air taxi service, the passengers and crew of which were Scottish. All persons aboard were killed and no witnesses survived the crash. There are indications, however, that something went wrong with the left engine for which compensatory action by the pilot was impossible, was unnecessarily difficult, or was ineptly handled by the pilot.
Gaynell Reyno, a California resident and personal representative of the estates of various Scottish decedents, sued on their behalf in a California state court. Named as defendants were Piper Aircraft Corp., a Pennsylvania corporation that manufactured the aircraft; Avco Lycoming Engine Group, which produced the engine; and Hartzell Propeller, Inc., an Ohio corporation that built the propeller. The wrongful death action is based on theories of strict liability and negligence.
On motions by Piper and Avco based on diversity of. citizenship, the case was removed from the California state court to the federal district court in California. After the removal, Hartzell moved to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the case to the Middle District of Pennsylvania under 28 U.S.C. § 1404(a).
Subsequent to the transfer, Hartzell was validly served with process in Pennsylvania and then moved to dismiss the case on the common law ground of forum non conveniens. Piper filed a similar motion captioned as a request for judgment on the pleadings or summary judgment. Both motions were accompanied by аffidavits. On the basis of the affidavits, the trial judge granted the motions to dismiss because of forum non conveniens on condition that defendants submit to personal jurisdiction in Scotland and waive any statute of limitations there. Reyno filed a timely appeal.
In this Court, Reyno raises two major contentions: (1) The judge erred in not holding defendants equitably estopped to assert that Scotland was a more appropriate forum, inasmuch as Piper had maintained in California that Pennsylvania was the most appropriate forum. (2) The trial judge abused his discretion in dismissing the action. Subsidiary, but arguably crucial, to this second point is the claim that the district judge’s order was based on a legal error as to whether Scottish or Pennsylvania law applied to most or all of the case.
I. THE INTERACTION OF A TRANSFER UNDER § 1404(a), A SUBSEQUENT FORUM NON CONVENIENS MOTION, AND THE CONCEPT OF PRECLUSION
Reyno argues that the district court erred in not considering whether the defendants were equitably estopped from moving to dismiss. Essentially, she contends that, by following a successful motion to transfer the case from California to Pennsylvania with a motion to dismiss so that the case would have to be filed in Scotland, the defendants are trifling with the court and wasting judicial and litigant time and resources.
The district court’s opinion did, however, consider plaintiff’s argument and rejected it, albeit in a somewhat summary fashion:
No cases are cited in support of that proposition and we believe that is a sufficient indicator of the merit of that argument. . . . The papers filed concerning the motion to transfer are, of course, irrelevant to the question we have decided. They were filed early on in this proceeding before many of the important facts of this case were uncovered. Also, Defendants should not be punished for their failure to file a motion to dismiss for forum non conveniens first, instead of the motion to transfer. If they would have filed such a motion we feel sure that the California district court would have likewise dismissed this action.4
The Court of Appeals for the Fifth Circuit has reversed the dismissal of an admiralty claim on forum non conveniens grounds for the reasons now pressed by Reyno. It declared that the defendant should not be permitted, after securing a statutory transfer from Louisiana to Georgia, to contend that Georgia was not really an appropriate forum; the defendant “may not ‘so trifle with the judicial process.’ ”
Defendants here urge, and the district court seemed to accept, that they did not take inconsistent positions before the district court in California and that in Pennsylvania. The motiоn in California, defendants claim, simply represented that Pennsylvania was a better forum than California, whereas the present motion contends that Scotland is better yet. Furthermore, they aver, any inconsistencies are a result of fuller knowledge of the relevant facts.
Both defendants asserted that, because the claim was based on strict liability, virtually all the evidence and material witnesses as to production and design would be in Pennsylvania or Ohio.
At the time of the transfer motion critical facts such as where various witnesses are, where the crash occurred, where the wreckage was located, and who owned the plane, were known. All that seems new was that a British administrative agency would investigate and report on the accident and that the decedents’ estates would institute a separate action against the air taxi service in Scotland. Although these last facts are indeed relevant to a forum non conveniens motion, they are hardly surprising or significant.
Nevertheless, two factors weigh against an absolute preclusion to raise a forum non conveniens motion in this case: (1) The thrust of Hartzell’s motion in the California court, and the contention accepted by that tribunal, was lack of personal jurisdiction. Arguably, then, it is not fair to make Hartzell responsible for proceedings there, even if it would be fair and proper as against Piper. (2) Forum non conveniens entails important considerations of public interest, in addition to those of the private litigants themselves. If defendants arе correct in their proposition that trial in Pennsylvania would be unduly burdensome to the court and the juror community, it might be self-defeating to raise an absolute barrier to pleading forum non conveniens. Hence, although a party who moves for transfer under § 1404(a) will not be automatically estopped to assert forum non conveniens after a transfer is accomplished, the fact that a party previously succeeded in a statutory transfer ought to be weighed against dismissing for forum non conveniens and as adding to a defendant’s already substantial burden on the later motion.
II. FORUM NON CONVENIENS DISMISSAL
The doctrine that an otherwise validly brought claim may be dismissed because the forum chosen was inconvenient for trial originated in the common law of Scotland,
Simple in enunciation but complex in application, the principle of the doctrine is that a court may resist imposition upon its jurisdiction even when neither jurisdiction nor venue is defective.
The question whether federal or state law of forum non conveniens applies in a diversity case was left open by the Supreme Court and has not definitively been decided by any court of appeals.
A plaintiff is generally conceded the choice of forum so long as the requirements of personal and subject matter jurisdiction, as well as venue, are satisfied. He should not be deprived of the advantages presumed to come from that choice unless the defendant clearly adduces facts that “either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience . or (2) make trial in the chosen forum, inappropriate because of considerations affecting the court’s own administrative and legal problems.”
The district judge believed that the plaintiff’s choice of foram is of diminished significance, and the defendants’ burden of showing inconvenience correspondingly less, when the plaintiff — more precisely, the real party in interest — is foreign or when the forum chosen is not the plaintiff’s home ground.
In support of the proposition that less solicitude is due a foreign plaintiff’s choice of forum, the district court relied on a decision of the District Court for the Southern District of New York which stated that a foreign plaintiff’s “choice of forum should be given less weight than the choice of an American plaintiff.”
The holding by the trial judge that a plaintiff’s choice is entitled to less weight when it is not the plaintiff’s state of residency is somewhat difficult to follow when, as here, that party had already been forced to cede the “home court advantage” as a result of the defendants’ previous motion to transfer the case from California to Pennsylvania.
Of course, the Supreme Court has stated that “[t]he doctrine [of forum
B. The Applicable Factors
The Gilbert Court divided the elements to be considered into those affecting the private interests of the litigants and those in which the public has an interest. The former 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.31
Also relevant is the inability to implead other parties directly involved in the controversy.
Among the public interest factors are a) problems of creating court congestion and imposing jury duty in litigation centers that are removed from the origin of the controversy, and b) benefits of holding the trial in a place accessible to the witnesses to the accident and of having the trial in a forum where the court is familiar with the law governing the case rather than having a court elsewhere untangle foreign law.
We shall examine each of these elements to determine whether the defendants met their burden.
C. Private Interests
1. Convenience of Witnesses
If a dismissal is to be premised on the convenience of witnesses, more than a mere allegation to that effect is required. The rule for a statutory transfer, which is to be more readily granted, is no less applicable to a dismissal for forum non conveniens:
The party seeking the transfer must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. The emphasis must be on this showing rather than on numbers. One key witness may outweigh a great number ofless important witnesses. If a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be the application for transfer will be denied. 35
The district court opinion does not discuss the need for such a showing, but rather merely refers generally to witnesses on the damages issue and witnesses on the potential supervening negligence of the Scottish air taxi service, all of whom are in Scotland.
At the least, then, the district court did not have sufficient information to weigh the convenience of witnesses, and its conclusion that this factor favored defendants appears to be without the requisite foundation.
One further error in discerning the balance of inconvenience to witnesses deserves mention. The trial judge stated that the convenience of expert witnesses, like that of counsel, “is of small importance.”
2. Availability of Compulsory Process and Impleader
The defendants’ major factual contention when the case comes to trial will be that the fatal crash at issue was caused not by any manufacturing or design defects, but by pilot error or by the negligence of the foreign air taxi service. Inability to implead foreign third-party defendants was argued vigorously here as a problem with a trial in this country, and it has, of course, generally been considered an important consideration favoring a forum non conveniens dismissal.
Defendants’ inability to join [the Scottish] parties as defendants in this case would seriously prejudice Defendants, through exposure to unnecessary, duplicitous litigation, and inconsistent verdicts. If Defendants are found liable here, they will be forced to file an indemnity or contribution action in Scotland against these parties. In light of the fact that Pennsylvania and Scottish law differ greatly with respect to products liability, Piper faces the substantial possibility, and great prejudice, of being held liable on a products liability theory in this case but being forced to prove negligence in an indemnity or contribution action in Scotland. Even if the same standard of liability is applied in this action and in an indemnity or contribution action in Scotland, Defendants run the substantial risk that different juries will find different facts and, hence, produce inconsistent results.43
If the defendants are found liable on strict liability here but must prove negligence against the air carrier to obtain indemnity, that is not unfair, but simply the result reached under the laws of the jurisdictions in which the two companies reside. The air taxi operates exclusively in Scotland and plans its operations and expenses according to Scottish law. Piper and Hartzell reside in strict liability jurisdictions, conduct most of their business in strict liability states, and plan accordingly.
The defendants’ risk of inconsistent verdicts would only exist if neither Pennsylvania nor Scotland followed principles of res judicata. Under those principles, any subsequent verdict for plaintiffs would merge with a previous favorable judgment or be barred by a prior judgment against the plaintiffs.
We therefore conclude that defendants’ inability to implead other potentially liable parties would indeed make litigation here more burdensome, but defendants have not shown that it would also be unfair. It is properly an element in their favor on the motion to dismiss, but it is not as weighty as they contend.
3. Desirability of Viewing the Premises
The district court concluded that, to the extent weight was to be assigned this factor, it favored defendants: “Familiarity with the topography around Tulla, Scotland and inspection of the wreckage of the plane would be aided by a trial in the British Isles.”
It is unclear whether the trial judge in fact ascribed any significant weight to this consideration, and still more uncertain is what benefit a lay jury would obtain from observing the wreckage in deciding whether the plane crashed because
D. The Public Interest
The parties in arguing this case, and the trial judge in deciding it, have placed the greatest importance on whether, under the applicable choice of law rules, American or Scottish law would apply to major aspects of the claims. The district court concluded that, for the most part, Pennsylvania law should apply to Piper and Scottish law to Harzell.
As will be discussed below, we conclude that the district court erred in its choice of law determinations. But even if the district court were correct in its conclusion that a mixture of Scottish and American law would be required, dismissal would not have been justified under this Court’s settled principles of forum non conveniens.
1. The Necessity of Applying Foreign Law
First, we held in Hoffman v. Goberman that “[i]t is settled that the mere fact that the court is сalled upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court. The district court was therefore, in error in basing its action, in part at least, on this ground.”
Second, if trial here would confuse the jury because a different country’s law would apply to each defendant, that confusion would either not be eliminated by a trial in Scotland or would be eliminated only by unacceptable unfairness to the plaintiff. If, as is unlikely, a Scottish court as a “transferee” court would apply the same choice of law rulings as would the court here, it would have an equally difficult problem in applying the laws of different countries to different defendants. Dismissal here would not eliminate the difficulty, but only shift it to a foreign forum.
The district court, though, had the affidavit of Scottish counsel that Scotland’s choice of law rule for torts was to apply the law of the place of injury to all facets of the case, and therefore Scotland probably would apply its own law to all claims. Even under the district court’s choice of law analysis, requiring a mixture of American and Scottish law, it is apparent that the dismissal would work a change in the applicable law so that the plaintiff’s
2. Choice of Law Rules Under Klaxon and Barrack
As a federal court deciding a case premised on diversity jurisdiction, we are required by Klaxon
The action against Piper was transferred under § 1404(a) from California to Pennsylvania. The law of the transferor forum — i. e., California’s choice of law rules — should therefore, under Van Dusen v. Barrack,
Iiartzell’s situation is more complex. The California district court ruled that personal jurisdiction over Hartzell was lacking, both under California law and the Due Process Clause. The court did not dismiss the case against Hartzell, but rather quashed service of process and ordered transfer to Pennsylvania along with eodefendant Piper. Although this Court has held that transfer under § 1404(a) is proper
To state the problem is, we believe, to explain why California’s law may not apply to Hartzell: if California’s exercise of jurisdiction over Hartzell would violate due process, so would application of that state’s choice of law rules.
Our analysis so far does not differ from that of the district court, which held that California’s choice of law rules applied to Piper and Pennsylvania’s rules applied to Hartzell.
a. California Conflicts Law Applied to Piper
California was a pioneering state in the governmental interest analysis approach to choice of law that was developed by Professor Currie.
Also integral to the holding in Reich v. Purcell was the introduction into California law of the concept of “false conflicts.”
Subsequent cases indicate a further refinement of the governmental interest and false conflict methodology termed a “comparative impairment” approach.
Among the relevant factors to be considered in determining choice оf law under California’s comparative impairment approach are the following:
(1) The status of the law — whether it is to be considered anachronistic or ascendant in the common law jurisdictions. “ ‘If one of the competing laws is archaic and isolated . . . , it may not unreasonably have to yield to the more prevalent and progressive law, other factors of choice being roughly equal.’ ”
(2) Insurance and other planning for risks. Parties may be expected to plan their activities with insurance in mind, and that planning may affect the comparative fairness of two competing rules of liability.
As we have mentioned, the district court divided the case against Piper into distinct issues, and ruled that a California court would apply its law as to one and Scottish law as to others. He then employed what conflicts scholars refer to as depecage, defined as “the process of applying the rules of different states to determine different issues in the same case.”
Any asserted conflict between American strict liability and Scottish negligence law is, we believe, a false one. Two basic policies underlie theories of tort liability: deterrence of harm-causing conduct and compensation of persons injured by that conduct. In private tort law, in which civil rather than criminal liability is imposed, the deterrence function is accomplished by compensation of the plaintiff. The choice between holding a manufacturer liable only for negligence and holding it strictly liable for any dangerous products or design is, practically speaking, a matter both of searching for optimal deterrence of harmful conduct and of allocating the costs of injuries either to producers or consumers. A negligence standard is, broadly speaking, more protective of producers, while strict liability is more solicitous of consumers.
The perceived conflict in this case is between Scotland’s interest in encouraging industry by protecting manufacturers and' making it relatively more difficult for consumers to recover. Pennsylvania, by contrast, in adopting strict liability, has shifted some of the burdens of injuries from consumers to producers. By adopting this policy of increased deterrence, it seeks to make manufacturers more careful in production and design than they would be if held to a negligence standard.
Pennsylvania’s interest in deterring defects in produсts can be served without impairing any significant interest of Scotland. Application of Scotland’s negligence law would only harm resident beneficiaries without any countervailing benefit to its industrial economy. We therefore conclude that, as between Pennsylvania and Scottish law on this issue, a California court would apply Pennsylvania’s strict liability analysis. Similar considerations would govern any greater restrictions on recovery for wrongful death that Scotland may have.
The district court declined to make any definitive ruling on the issue of plaintiff’s capacity to sue because of the paucity of available information for balancing comparative governmental interests.
Because we reverse the dismissal, it will be necessary for the trial judge to decide that issue based upon additional information. If it is held that Reyno does not have representative capacity, it will be necessary
Guiding the trial judge’s decision should be the requirement of Fed.R.Civ.P. 17(b) that the capacity of an individual to sue in a representative capacity “shall be determined by the law of the state in which the district court is held.”
b. Pennslyvania Conflicts Law Applied to Hartzell
Citing Griffith v. United Airlines,
In Griffith, the Pennsylvania Supreme Court overturned the old rule that the law of the state of wrong governs all issues in tort actions
The Pennsylvania Supreme Court noted three general approaches competing to replace the old rule: (1) Professor Currie’s early emphasis on applying the forum’s law when the forum has a legitimate interest in the issue presented;
Subsequent cases confirm that Pennsylvania courts follow a governmental interest analysis approach, with a state’s contacts being considered significant only when the behavior giving rise to the contact furthers or abrogates a state policy. Where the place of accident is fortuitous and the state where the accident occurred has no interest in the regulatory standard at issue, any conflict between that state and a state truly interested because, for example, the parties resided there, Pennsylvania appears to suggest, a false one.
In McSwain v. McSwain, the court stated its approach as follows:
Whether the policies of one state rather than another should be furthered in the event of conflict can only be determined within the matrix of specific litigation. What should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.92
The latest discussion in Cipolla v. Shaposka
In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the “policies and interests underlying the particular issue before the court.” When doing this, it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale.94
Griffith, McSwain and Cipolla indicate to us that the primary approach of the Pennsylvania Supreme Court in choice of law is governmental interest analysis. Our determination as to whether the Pennsylvania court would apply American strict liability and unlimited recovery for wrongful death,
E. Other Elements of Public Interest
We have held that under the applicable choice of law rules Pennsylvania and Ohio are the jurisdictions with the greatest policy interest in this dispute. It follows that the other public interest factors that should be considered under the Supreme Court cases of Gilbert and Koster favor trial in this country rather than Scotland.
III. CONCLUSION
Because the defendants did not meet the burden required of them for a forum non conveniens dismissal, the judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion.
Notes
. Determination of these issues by the ultimate factfinder, of course, will be dealt with when the merits of the case are reached.
. Plaintiff contends that the engine malfunction itself was the result of a design or manufacturing defect for which Piper is liable. In addition, the following dangerous and defective conditions in the aircraft are alleged: (1) inadequacies associated with the left propeller mechanism that prevented institution of emergency procedures in the event of engine loss; (2) design and manufacture of an aircraft incapable of single engine flight with a “windmilling” propeller; (3) manufacture of an aircraft with improper instruments for maintaining single engine operation; and (4) inaccuracies and omissions in the Aircraft Owners Handbook and flight manuals pertaining to emergency procedures and single engine operating speeds.
. That section provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
.
. Insurance Co. of North America v. Ozean/Stinnes-Linien,
. Hartzell’s Memorandum of Points and Authorities in Support of Motion to Dismiss for Lack of Jurisdiction over the Person or for Transfer under 28 U.S.C. § 1404(a) at 8. No. CV-77-3181-IH (C.D.Cal., filed Oct. 11, 1977).
. Piper’s Memorandum of Points and Authorities in Support of Motion to Transfer under 28 U.S.C. § 1404(a) at 6. No. CV-77-3181-IH (C.D.Cal., filed Nov. 23, 1977).
. Hartzell stated in its memorandum that “the records and employees of the . . defendants herein are prospective evidence and witnesses, respectively.” Piper asserted, “Necessarily, it would seem that all material witnesses on the liability issues reside in either Pennsylvania or Ohio.” In reply to plaintiffs opposition to the transfer, Piper argued that the respective employees of Piper and Hartzell Propeller, who were involved in the design, manufacture, testing, and assembly of the component parts in question, will be material witnesses, but they are located in Pennsylvania and Ohio. It is clear that the conveniеnce of these witnesses is better served if the within action is pending in the State of Pennsylvania than if it is pending in the Central District of California.
. Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909-11 (1947). The issue of inconvenient forum as a question on the merits rather than of jurisdiction may be traced
. See Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929); Braucher, supra note 9, at 911 12.
. The doctrine in admiralty is thought to derive from dictum in Mason v. The Ship Blaireau,
.
.
. Gulf Oil Corp. v. Gilbert,
. 62 Stat. 937 (1948) (codified at 28 U.S.C. § 1404).
. The statute is a revision rather than just a codification of forum non conveniens. It permits federal courts to grant transfers on a lesser showing of inconvenience than is required under the common law doctrine and there is no need for pleadings or documents to be refiled in the transferee court. The relevant factors to be considered, however, are the same. Norwood v. Kirkpatrick,
. The Erie question was a matter in controversy in both Gilbert and Koster until the cases reached the Supreme Court. In Gilbert the district court, relying on Weiss v. Routh,
The law of New York as to the discretion of a court tо apply the doctrine of forum non conveniens, and as to the standards that guide discretion is, so far as here involved, the same as the federal rule. ... It would not be profitable, therefore, to pursue inquiry as to the source from which our rule must flow.
The Court’s decision not to decide was sharply criticized by Professor Braucher who observed that it
seems to have been arrived at by something like main force: in the Koster case it was contrary to the unanimous view of the circuit judges [that federal law applied], and in the Gilbert case it was reached only by ignoring the state court decision most nearly in point, which had been cited with approval by the New York Court of Appeals. Since the circuit court of appeals had not regarded the New York law as controlling, previous decisions suggest that if New York law were held to govern, the normal practice of the Supreme Court would be to remit the case to the lower court to determine that law.123
Wertheim v. Clergue,
Braucher, supra note 9, at 928 (footnotes 122 and 124 omitted). Since the Gilbert and Koster cases, the Second Circuit has altered its position to indicate that the Erie question is an open one. See Thomson v. Palmieri,
. See Founding Church of Scientology v. Verlag,
. A footnote in Koster addressing the question whether federal courts have discretion to decline granted jurisdiction strongly points, along with the structure of the Court’s reasoning in both Gilbert and Koster, toward use of federal rather than state law:
Some of our cases appear to hold broadly that the federal courts must exercise their jurisdiction, when they have it. [citing cases]. . But this is not a case in which it is urged that a state statute restricting remedy to state proceedings defeats federal diversity jurisdiction, as [those cases] were .... In those cases, the Court held that when a state recognizes a cause of action, suit may be brought on it in federal court if diversity jurisdiction is established. That holding has nothing to do with this сase. We are concerned here with the autonomous administration of the federal courts in the discharge of their own judicial duties, subject of course to the control of Congress.
. Opinions of the Pennsylvania Supreme Court have adopted almost verbatim the factors to be considered that are set out in Gilbert and Koster: scope of trial court discretion, and standard of appellate review. See Rini v. N. Y. Central R. Co.,
. Koster,
. Gilbert,
.
. Farmanfarmaian v. Gulf Oil Corp.,
. See Farmanfarmaian v. Gulf Oil Corp.,
. Alcoa Steamship Co., Inc. v. M/V Nordic Regent, No. 78 7054, slip op. at 5960-68, 5973 (2d Cir. Feb. 25, 1980) (en banc). The court of appeals en banc thus seems to have overturned without specific mention the panel holding in Olympic Corp. v. Societe Generale,
. Phoenix Canada Oil Co., Ltd. v. Texaco, Inc.,
. Gilbert,
. DeMateos v. Texaco, Inc.,
. Cf. Founding Church of Scientology v. Verlag,
.
. Id. at 511,
. Id. at 508,
. Gilbert,
. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3851 at 270-71 (1976); see Marbury-Pattillo Construction Co., Inc. v. Bayside Warehouse Co.,
.
. See pp. 5-6 & note 8 supra.
.
. The district court referred to Car-Freshner Corp. v. Auto Aid Mfg. Corp.,
. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3852, at 275 (1976).
. Id.; see Lykes Bros. S. S. Co. v. Sugarman,
. See Gilbert,
. Brief of Appellee Piper аt 22. Hartzell’s argument on this point is simply conclusory:
As is reinforced by the plaintiffs’ survivors action against the air carrier employing the pilot, the agency owning and maintaining the airplane and the estate of the pilot in Scotland, those parties should be joined as defendants and cannot be joined in the United States but could be joined in the proper Forum.
Brief of Appellee Hartzell at 13.
. See generally Reinstatement (2d) Judgments §§ 47, 48, 68.1 (Tent. Draft No. 1, March 28, 1973).
. Defendants submitted affidavits from Scottish counsel only on the following points of Scottish law: (1) choice of law, (2) damages that may be awarded, (3) statutes of limitations, and (4) capacity to sue.
.
. The trial court opinion stated:
Uppermost in our weighing of these public interest factors is that a trial in this forum would be hopelessly complex and confusing for a jury as different laws will apply to different parties. From our review of the applicable choice of law rules, it appears that Pennsylvania law would apply to Defendant Piper and that Scottish law would apply to Defendant Hartzell.
. See id.
.
.
. DeMateos v. Texaco, Inc.,
. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc.,
. The Supreme Court reaffirmed Klaxon in strong terms in Day & Zimmermann, Inc. v. Challoner,
.
[W]e do not and need not consider whether in all cases § 1404(a) would require the application of the law of the transferor, as opposed to the transferee, State. We do not attempt to determine whether, for example, the same considerations would govern if a plaintiff sought transfer under § 1404(a) or if it was contended that the transferor State would simply have dismissed the action on the ground of forum non conveniens . . .
Id. at 639-40,
. In Goldlawr, Inc. v. Heiman,
. See Kirgis, The Roles of Due Process and Full Faith and Credit in Choice of Law, 62 Cornell L.Rev. 94, 103 (1976) (forum must have reasonable due process basis for applying own law, which does not exist if party opposing application of forum’s law has no minimum contacts with forum, the transaction giving rise to the claim is not connected with the forum, or application of the forum’s law would otherwise be manifestly unfair).
. The plaintiff in the Barrack case challenged, by writ of mandamus, the district court’s order transferring the case from Pennsylvania to Massachusetts. He contended that the transfer could not be, as § 1404(a) requires, “in the interest of justice,” because it was likely to be accompanied by a prejudicial change in the state law to be applied.
. See note 54 supra.
. See, e. g., NLRB v. Catholic Bishop of Chicago,
.
. The district court relied primarily on Reich v. Purcell,
. See
. Professor Brainerd Currie is generally considered to be the father of modern governmental interest analysis. See Bernhard v. Harrah’s Club,
.
.
. The term was not explicitly used in that case, but the methodology was. See id. at 555-56,
. Reich v. Purcell,
. Offshore Rental Co., Inc. v. Continental Oil Co.,
. Offshore Rental Co., Inc. v. Continental Oil Co.,
. Id. (emphasis deleted) (quoting Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1216 (1946)).
. Id. at 167,
. Reese, Depecage: A Common Phenomenon in Choice of Law, 73 Colum.L.Rev. 58, 75 (1973); see Broome v. Antler’s Hunting Club,
. See R. Leflar, supra note 72, at 222; Reese, supra note 72, at 75. The approach is also implicit in the analysis of Professor Cavers, whose work is often cited by the California Supreme Court. See D. Cavers, supra note 67, at 40-43.
. In a recent case in which the California Supreme Court adopted comparative negligence into strict liability, the underlying policy of the latter was said to be to shift the cost of injuries from defective products from consumers to manufacturers. But the court empha
. See, e. g., Wade, On Product “Design Defects" and Their Actionability, 33 Vand.L.Rev. 551, 555 (1980) (major point of controversy in America is no longer whether strict liability should be adopted, but what its precise standards should be).
. Courts employing governmental interests analysis have not struggled long to determine that a state where plaintiff but not defendant resides has no interest in restricting recovery for wrongful death of its citizens against foreign corporations. See, e. g., Hurtado v. Superior Court,
. On the choice of law issue as to representative capacity, the court stated: “We . only have affidavits from lawyers from Scotland as to what the rules of law are in that country and thus we cannot make any definitive ruling on the purpose of the Scottish law or thereby the choice of law.”
. Fed.R.Civ.P. 17(a); see Field v. Volkswagen-werk AG,
. Rule 17(b) in full provides:
The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized, in all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except [(1) a special rule for partnerships and other unincorporated associations; and (2) bankruptcy receivers].
(emphasis added); see General Heat & Power Co. v. Diversified Mortgage Investors,
. The court “is held” in California as to Piper and in Pennsylvania as to Hartzell. See pp. 305 -306 supra.
. Fed.R.Civ.P. 9(a) requires that a party desiring to raise an issue as to “the capacity of any party to sue ... or the authority of a party to sue . . in a representative capacity . . do so by specific negative averment.” The federal rules do not make clear when in the stage of a litigation lack of capacity must be averred, but because lack of capacity is a dilatory defense. Professors Wright and Miller state that it “should be raised promptly. Any unreasonable delay may encourage the court to deny the objection on the ground of prejudice.” 6 C. Wright & A. Miller, Federal Practice and Procedures § 1542, at 640 (1971) (footnote omitted). See 5 Id. § 1295, at 397 (objection to party’s capacity should be analogized to an affirmative defense and waived if not asserted early in the litigation by motion or responsive pleading). The record reveals that Reyno’s capacity was not challenged by Piper until it joined Hartzell’s motion to dismiss after the case had been transferred to the Middle District of Pennsylvania. This motion came after Piper had moved to remove the case from a California state court to a federal court, had filed its answer to the complaint, and had successfully moved to transfer the case to the Middle District of Pennsylvania.
.
.
.
. Kuchinic v. McCrory,
. Griffith,
. Id. at 14,
. Id. (citing Ehrenzweig, Comments on Babcock v. Jacksons, 63 Colum.L.Rev. 1212, 1243 (1963)).
. Id. at 14- 15,
. Id. at 21,
. Kuchinic v. McCrory,
. McSwain v. McSwain,
.
. Id. at 566,
. There is some difference between California and Pennsylvania, on the one hand, and Ohio on the other as to the standard of proof in strict liability. Ohio has adopted in full Restatement (2d) Torts 402A, subjecting to liability one who sells a product in a defective condition “unreasonably dangerous.” See, e. g., Temple v. Wean United, Inc.,