Refracting Domestic and Global Choice-of-Forum Doctrine Through the Lens of a Single Case

There is nothing new under the sun, but there are lots of old things we don't know. - Ambrose Bierce, The Devil's Dictionary Large portions of the civil procedure curriculum are devoted to the question of forum selection. Doctrines of personal jurisdiction, subject matter jurisdiction, removal, venue, transfer, and forum non conveniens all address the single issue of whether the litigation is proceeding in a proper place.1 In law school, students soon see that parties sometimes engage in titanic litigation over where the case should proceed.2 Why do the parties care about the forum? Everyone can understand why a plaintiff might want to litigate at home-to be in familiar surroundings, to employ her own lawyer in that lawyer's locus of familiarity and influence, and to put her fate in the hands of local jurors who may understand and sympathize with her plight. Moreover, everyone can appreciate that the plaintiff might choose a forum that forces the defendant to travel or forces the defendant's lawyer to work in unfamiliar surroundings, or that enhances the possibility of having favorable law apply. What is less obvious at the outset is that the defendant has an impressive array of tools to override the plaintiffs forum selection, and that strategic use of these tools may have a profound effect on the progress3-and even the outcome-of the litigation. On its face, Piper Aircraft Co. v. Reyno4 concerns only one forum-selection doctrine-the forum non conveniens dismissal in favor of a foreign tribunal.5 While professors have their own views on whether the Piper opinion is a good effort in this regard,6 they recognize it as a canonical case; it is the staple forum-non-conveniens case in the casebooks.7 A close inspection of its facts, however, reveals that Piper's instructional value vastly exceeds its use as a vehicle for discussing forum non conveniens. The fact pattern permits a review of virtually the whole of forum-selection-an impressive array of issues relating to personal jurisdiction, subject matter jurisdiction, venue, transfer, choice of law, and, as a bonus, a nice exercise in statutory interpretation. It also opens the door to discuss the role of American courts and American law in a global perspective. Ultimately, it demonstrates that the party who controls forum selection may control outcome. So while Piper is nothing new under the sun, its use as a didactic tool may be; it permits professors to demonstrate to students why these doctrines-that may seem so dry and technical-matter to real-world lawyers. In an era of decreased credit hours, a vehicle that allows professors to cover so much ground and to integrate so much material is a worthy friend. Though Piper is assigned in the section of the course on forum non conveniens, in class I surprise students by not addressing that topic until we have examined-expressly for purposes of review-a panoply of other issues, most of which the Court was not required to address. I do so by recounting the facts of the litigation as though they were facts on an examination and by asking sixteen questions, none of which relates to forum non conveniens. At the end of the day, in my opinion, Piper is the greatest teaching case in the civil procedure curriculum. But its greatness has surprisingly little to do with the doctrine for which it is famous. I. THE FACTS OF PIPER WITHOUT FORUM NON CONVENIENS Imagine the facts of Piper as an exam hypothetical.8 A twin-engined airplane manufactured by Piper Aircraft Company in Lock Haven, Pennsylvania, crashed in Scotland. The airplane was fitted with propellers manufactured by Hartzell Propeller, Inc. in Piqua, Ohio. The plane was owned by Air Navigation and Trading Co., Ltd., of Great Britain.9 Air Navigation maintained the plane in England. McDonald Aviation, Ltd., another British corporation, operated a commercial air taxi service. When one of its planes was inoperable, it leased the plane in question from Air Navigation to take a charter group of five passengers from Blackpool, England to Perth, Scotland. …