Dtex, LLC v. Bbva Bancomer, S.A.

• Decision Date: 09 April 2007
• Docket Number: Civil Action No. H-06-0188.
• Citation: 512 F.Supp.2d 1012
• Parties: DTEX, LLC, Plaintiff, v. BBVA BANCOMER, S.A., Defendant.
• Court: U.S. District Court — Southern District of Texas

512 F.Supp.2d 1012

DTEX, LLC, Plaintiff, v. BBVA BANCOMER, S.A., Defendant.

Civil Action No. H-06-0188.

United States District Court, S.D. Texas, Houston Division.

April 9, 2007.

I. Faison Hicks, Parker Poe et al., Charlotte, NC, Kevin A. Dunlap, Parker Poe Adams Bernstein LLP, Spartanburg, SC, Suzanna Caroline Bonham, William E. Junell, Jr., Schwartz Junell Greenberg et al., Houston, TX, for Plaintiff.

Thomas H. Grace, William Steven Bryant, Locke Liddell et al., Houston, TX, for Defendant.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

In January 2006, Dtex, L.L.C. ("Dtex"), a South Carolina company that trades in used textile equipment, sued BBVA Bancomer, S.A., Institution de Banca Grupo Financiero BBVA Bancomer ("Bancomer"), A Mexican banking corporation that maintains a permanent foreign bank agency in Houston, Texas. In both the original and amended complaints, Dtex sought damages for tortious interference with contract, intentional interference with prospective contractual relations, and conversion. (Docket Entries No. 20, 33). The claims arose from Bancomer's alleged interference with Dtex's rights to certain textile equipment, which Dtex purchased in Mexico in an auction sponsored by the Mexican government. Bancomer asserted a lien on the same textile equipment. Dtex's and Bancomer's competing claims to the equipment has been the subject of extensive and numerous legal proceedings in Mexican courts since 2002.

Dtex filed two lawsuits in the United States challenging Bancomer's actions with respect to the textile equipment in Mexico. In July 2004, Dtex sued Bancomer in the United States District Court for the District of South Carolina, asserting most of the causes of action later alleged in this case. (Docket Entry No. 30). That case was dismissed for lack of personal jurisdiction. Dtex then used Bancomer in this court.

Bancomer's pending amended motion to dismiss is based on comity or forum non conveniens. (Docket Entry No. 45). Dtex has responded to the motion, (Docket Entry No. 50), Bancomer has replied, (Docket Entry No. 61), Dtex has surreplied (Docket Entry No. 66), and Bancomer has filed a surresponse, (Docket Entry No. 67).¹

Based on a careful review of the pleadings, the motion to dismiss and response, the parties' submissions, and the applicable law, this court grants Bancomer's motion to dismiss on the basis of forum non conveniens. (Docket Entry No. 45). The reasons are set out below.

I. Background

The dispute between Bancomer and Dtex began with loans by Bancomer to a Mexican textile manufacturer located in Chihuahua, Mexico. That textile manufacturer, Denimtex, S.A. de C.V., borrowed approximately $30 million from Bancomer from 1994 through 2000. Bancomer claims that it received a first priority lien on certain textile equipment, including equipment at the Denimtex plant in Chihuahua, as security for the loans.

In 2000, Denimtex defaulted on the loans. In 2001 and 2002, Bancomer was involved in collection actions against Denimtex in Mexican courts, obtaining judgments. In 2002, in, one of the foreclosure proceedings, the court appointed a judicial administrator to secure the equipment at the Denimtex plan on Bancomer's behalf. Dtex alleges that this administrator, Duarte Sanchez, was "hand-picked" by Bancomer and was "not an `independent' judicial administrator, officer, or agent. He is in every respect Bancomer's man. He represents Bancomer's interests." (Docket Entry No. 51 at 7-8). Bancomer asserts that Sanchez was independent and that his selection and activities were subject to court oversight. (Docket Entry No. 46 at 5, Ex. B at 2; Docket Entry No. 61, Ex. B at 19).

In 2001, the Denimtex plant employees' union sued Denimtex for unpaid wages. In December 2001, the Mexican Labor Board granted the employees an award and judgment for the workers' wage claims. The Labor Board attached Denimtex's property, including the textile equipment at the plant, to secure the wage claims and conducted an auction of the equipment. Dtex asserts that the wage claims had a first priority lien on Denimtex's assets, superior to all existing claims, and that the tribunal conducting the auction published written notices of the auction as required by Mexican law. (Docket Entry No. 52 at 13-15).

In July 2002, Dtex submitted a winning bid at the auction for the equipment, 37,887,120 Mexican pesos (approximately $3,866,850). (Docket Entry No. 50 at 2). Dtex transferred the funds from its headquarters in South Carolina to the Labor Board in Mexico City. On July 25, 2002, Dtex entered into a contract to sell the equipment to a third party, Gibbs International, Inc., for $7,950,000. (Docket Entry No. 46, Ex. D at 17).

In August 2002, Bancomer filed a legal proceeding with the tribunal that had conducted the auction, challenging the validity of the auction under Mexican law. (Docket Entry No. 50 at 3; Docket Entry No. 46 at 4). Bancomer asserted that despite its status as the first-priority secured lien-holder, it had not received proper notice of the auction and as a result had not submitted a bid. Dtex was not a party to this proceeding. Dtex alleged that Bancomer, "falsely and fraudulently misrepresented to the Labor Board that, if it would conduct [another] auction, the defendant might find a third party to bid more money." (Docket Entry No. 20 at 8). On October 10, 2002, the tribunal ruled against Bancomer.

On October 28, 2002, Bancomer filed a proceeding called an "Amparo Indirecto" in a court in Mexico City, alleging that the tribunal conducting the auction had violated Bancomer's rights. (Docket Entry No. 50 at 4). At that time, Dtex was not a party in the proceeding. In the Mexico City Amparo proceeding, the court granted Bancomer's request for a stay preventing any entity, including Dtex, from taking possession of the textile equipment pending a full hearing. Bancomer was required to post a significant bond as a condition for the stay order.² The stay was issued on December 6, 2002. On January 8, 2003, the court that had issued the stay ruled against Bancomer, dismissing its claim. (Docket Entry No. 20 at 9). Decisions in subsequent appeals, issued on February 21 and May 14, 2003, affirmed this result. Dtex alleges that in the Mexico City Amparo proceeding, Bancomer used "its vast financial resources, as well as its tremendous influence and political power throughout Mexico" to obtain the stay "with the knowledge that it was not legally entitled to upset the plaintiff's winning bid." (Docket Entry No. 20 at 10). Dtex acknowledges that despite these efforts, the Mexican courts ruled against Bancomer. Dtex asserts that under Mexican law, the May 14, 2003 judgment fully disposed of Bancomer's challenge to the auction; Dtex claims the decision is res judicata as to Bancomer's claim that it owns the textile equipment. (Docket Entry No. 50 at 4-5; Docket Entry No. 52 at 14).

Dtex alleges that Sanchez violated the stay order that had been issued in the Amparo and seized possession of the equipment "through threats of violence and actual acts of violence." (Docket Entry No. 20 at 12). Dtex alleges that after May 14, 2003, when the Mexican court determined that Dtex owned the equipment, Bancomer or Sanchez kept possession of the equipment by posting security guards and blocking Dtex. (Docket Entry No. 20 at 13; Docket Entry No. 50 at 5). Dtex alleges that in December 2003, even after it received an order allowing it to take possession of the equipment, Bancomer or Sanchez used security guards to prevent that from occurring. (Docket Entry No. 20 at 13-14).

On December 16, 2003, Sanchez filed a second Amparo action, this one in Chihuahua, Mexico seeking to invalidate the rulings in Dtex's favor and asking for a stay to prevent Dtex from taking the equipment. (Docket Entry No. 50 at 7; Docket Entry No. 56 at 5). Dtex alleges that Bancomer, through Sanchez, fraudulently failed "to disclose to that court the fact that Denimtex was out of business." (Docket Entry No. 20 at 12). On January 4, 2004, however, before Sanchez had posted the bond required for a stay, the Labor Board issued orders that allowed Dtex to take the equipment and store it in a Denimtex storage facility. On January 15, 2004, Sanchez posted the bond in the Chihuahua Amparo case, which prevented Dtex from removing the equipment from the Denimtex storage facility. Dtex alleges that this stay was obtained in bad faith and that Bancomer, through Sanchez, "falsely and fraudulently omitted to disclose to the Mexican court the material fact that the equipment had already been purchased by the plaintiff and was the plaintiff's property." (Docket Entry No. 20 at 11, 16). Dtex also alleges that on January 16, 2004, "25-30 `thugs' hired by the defendant suddenly and without warning showed up at the Denimtex plant and attempted by force to gain entry into the secured Denimtex facility where the plaintiff's equipment was stored." (Docket Entry No. 30 at 19). The police prevented that from occurring. (Id. at 20). Dtex alleges that the individual that led "the mob" "approached the plaintiff's Mexican lawyer and offered him a bribe, stating that Bancomer would pay [the lawyer] a monthly bribe if he would allow the [Bancomer's] agents to have access" to the equipment. (Id.). Dtex also alleges, that Bancomer "posted people just outside the Equipment site" starting on January 18, 2004. (Id.).

On December 3, 2004, the Federal Labor Court denied the Chihuahua Amparo action Sanchez had filed, and the First Collegiate Tribunal in Civil and Labor Matters in Chihuahua denied the appeal on April 14, 2005. (Docket Entry No. 46 at 5; Docket Entry. No. 50 at 8). Bancomer asserts that Dtex appeared and participated in these proceedings, which ended in Dtex's favor. (Docket Entry No. 46 at 5). Dtex denies that it was a party to the proceedings but agrees that the courts ultimately ruled against the judicial administrator who was acting on...