Gutierrez v. Advanced Med. Optics Inc.

• Decision Date: 07 April 2011
• Docket Number: No. 09–55860.,09–55860.
• Citation: 2011 Daily Journal D.A.R. 5087,11 Cal. Daily Op. Serv. 4223,640 F.3d 1025
• Parties: Francisca Palomino GUTIERREZ; Pedro Cedillo Rodriguez; Angelica Aldana Esparza; Rafael Saldana Trejo; Maria Reyes Resendiz Miranda; Rodriguez Hernandez Tomas; Felipa Gonzalez Coronado; and Maria Del Socorro Lierio Hernandez, Plaintiffs–Appellants,v.ADVANCED MEDICAL OPTICS, INC., a Delaware corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

640 F.3d 1025

11 Cal. Daily Op. Serv. 4223

2011 Daily Journal D.A.R. 5087

Francisca Palomino GUTIERREZ; Pedro Cedillo Rodriguez; Angelica Aldana Esparza; Rafael Saldana Trejo; Maria Reyes Resendiz Miranda; Rodriguez Hernandez Tomas; Felipa Gonzalez Coronado; and Maria Del Socorro Lierio Hernandez, Plaintiffs–Appellants,

v.ADVANCED MEDICAL OPTICS, INC., a Delaware corporation, Defendant–Appellee.

No. 09–55860.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 2010.Filed April 7, 2011.

Edward C. Snyder and Jesse R. Castillo, Castillo Snyder, P.C., Attorneys for plaintiffs-appellants Francisca Palomino Gutierrez, et al.Richard H. Nakamura, Jr., Maureen M. Home, Marilyn Muir Jager, and Wendi J. Frisch, Morris Polich & Purdy, LLP, Attorneys for defendant-appellee Advance Medical Optics, Inc.Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:08–cv–01130–DOC–AN.Before: JOHNNIE B. RAWLINSON and MILAN D. SMITH, JR., Circuit Judges, and ROBERT C. JONES, District Judge.^*

OPINION

M. SMITH, Circuit Judge:

Plaintiffs appeal the district court's dismissal of their complaint on forum non conveniens grounds. Plaintiffs, who were grievously injured when they developed eye infections after surgery in Mexico, initially brought suit against Defendant–Appellee Advanced Medical Optics, Inc. (Defendant) in the Central District of California. Defendant moved to dismiss the lawsuit, arguing that Mexico was an adequate alternative forum, and that both public and private interests weighed in favor of dismissal. The district court agreed, and dismissed the case without placing any conditions on the dismissal. The district court also denied Plaintiffs' motion for reconsideration of its dismissal order.

Plaintiffs appealed to our court, but contemporaneously filed an action in Mexico. During the pendency of Plaintiffs' appeal, the Mexican courts declined to exercise jurisdiction over Plaintiffs' suit filed there. Plaintiffs argue that the district court erred in finding that Mexico was an available alternative forum and by not placing conditions on the dismissal of the case.

While we conclude that, based on the evidence before it at the time, the district court did not err in its initial forum non conveniens analysis, intervening events compel a reconsideration of its ruling. We therefore vacate and remand to the district court.

BACKGROUND, PRIOR PROCEEDINGS, AND JURISDICTION

For purposes of this appeal, we accept as true the facts alleged in the complaint. See Cariajano v. Occidental Petroleum Corp., 626 F.3d 1137, 1142 (9th Cir.2010) (citing Vivendi SA v. T–Mobile USA, Inc., 586 F.3d 689, 691 n. 3 (9th Cir.2009)).

Plaintiffs are elderly residents of Monterrey, Nuevo Leon, Mexico, who each suffered grievous injuries in October 2007 after undergoing eye surgery in that Mexican state. Specifically, between October 11, 2007, and October 16, 2007, each of the eight Plaintiffs had cataract surgery performed on one eye by a Mexican surgeon with twenty-five years of experience and a specialization in cataract surgery. Within hours after completion of their surgeries, each Plaintiff contracted a severe case of bacterial endophthalmitis, and suffered severe pain in the affected eye. Plaintiffs further suffered symptoms of red eyes filled with runny puss, fevers, nausea, and vomiting. Plaintiffs were treated at local hospitals for their injuries, some for several weeks. Ultimately, physicians were compelled to remove the infected eye of three of the Plaintiffs, and the other five went completely blind in the affected eye.

Plaintiffs allege that their injuries were caused by Defendant's defective Healon viscoelastic product, which was used in all of the eye surgeries. Defendant manufactured, or subcontracted manufacture of, the Healon product used in each of the surgeries. After the Plaintiffs' surgical complications occurred, unopened batches of Defendant's Healon product were tested and found to be infected with a virulent strain of bacteria that causes endophthalmitis.

Plaintiffs initially filed suit against Defendant in the Central District of California. Defendant's ¹ corporate headquarters and its principal place of business are located in Santa Ana, California. Defendant does not have a place of business, nor is it domiciled, in Mexico. The district court dismissed this case on forum non conveniens grounds on April 2, 2009, finding that Mexico was an available and adequate forum because Defendant agreed to submit to the jurisdiction of the Mexican courts. The district court's order of dismissal did not include conditions or a “return-jurisdiction” clause to become effective in the event Mexico's courts declined jurisdiction.

Plaintiffs filed this appeal on June 5, 2009. On June 22, 2009, Plaintiffs commenced litigation against Defendant in the Mexican federal district court in Nuevo Leon, Mexico. The parties do not dispute that during the pendency of this appeal, the Mexican Federal District Court dismissed the Plaintiffs' case for lack of jurisdiction. That dismissal was affirmed by the Mexican Federal Court of Appeals. Plaintiffs then filed a federal constitutional challenge in Mexico before the Amparo court, which also affirmed the Mexican Federal District Court's dismissal of the case on November 12, 2009. The parties dispute the reasons for the Mexican courts' dismissal of the Plaintiffs' complaint filed there.²

We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court's dismissal of this case on forum non conveniens grounds is reviewed for an abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir.2001).

DISCUSSION

A district court has discretion to decline to exercise jurisdiction by invoking the doctrine of forum non conveniens in a case where litigation in a foreign forum would be more convenient for the parties. Lueck, 236 F.3d at 1142. However, the doctrine of forum non conveniens is “an exceptional tool to be employed sparingly.” Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir.2002) (internal quotation marks omitted). Before invoking the doctrine of forum non conveniens to dismiss a case, a district court must examine: (1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favors dismissal. Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252; Lueck, 236 F.3d at 1142. “The defendant bears the burden of proving the existence of an adequate alternative forum.” Lueck, 236 F.3d at 1142(quoting Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.1983)).

I. Mexico's Availability as an Alternative Forum

Before the doctrine of forum non conveniens may be applied to dismiss a case, a district court must first determine whether an adequate alternative forum is available to the plaintiff. Lueck, 236 F.3d at 1143. An alternative forum is adequate if the intended forum is capable of “provid [ing] the plaintiff with a sufficient remedy for his wrong.” Dole Food, 303 F.3d at 1118. “An alternative forum ordinarily exists when defendants are amenable to service of process in the foreign forum” and “ ‘when the entire case and all parties can come within the jurisdiction of that forum.’ ” Id. (emphasis omitted) (quoting Alpine View Co. v. Atlas Copco, 205 F.3d 208, 221 (5th Cir.2000)). Plaintiffs do not challenge the adequacy of Mexico as an alternative forum if it takes jurisdiction; rather, they argue that the district court erred in finding Mexico was an available forum.

Plaintiffs argue that the District Court erred because it shifted the burden of proof on the availability of an alternative forum to them. Plaintiffs further contend that the district court erred in granting the motion to dismiss when experts disagreed as to whether Mexico would have jurisdiction over the case. We disagree and do not fault the district court's initial forum non conveniens analysis.

Here, the district court considered the expert opinions presented by both sides in determining that Mexico was an available forum. Defendant presented evidence through its expert that Mexican courts would have jurisdiction of the case if Defendant agreed to submit to its forum. Defendant's expert opined that “the Mexican court in Nuevo Leon would have jurisdiction over this lawsuit under the express submission doctrine.”

Additionally, Plaintiffs' expert on Mexican law stated that parties could agree to submit to jurisdiction. According to Plaintiffs' expert: “As a general rule, especially in all kinds of contracts, the parties will be allowed to agree to designate a forum for the resolution of disputes but both parties have to fully agree on such jurisdiction clause.” Plaintiffs' expert qualified his opinion by stating that it is not enough for one party to submit to jurisdiction in Mexico; rather, both parties must consent. Based on the evidence presented to the district court, it appeared that Plaintiffs would be asserting their claims and that Defendant had expressly agreed to submit to Mexican jurisdiction. Ordinarily, to show an available forum, all that is required is that the defendant is amenable to service of process in the foreign jurisdiction. See Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252. Accordingly, we find that the district court reasonably concluded that Mexico was an available alternative forum.

Normally, the trial court's decision, in the absence of other facts, merits substantial deference. See Lueck, 236 F.3d at 1143 (“[W]here the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” (quoting Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 699 (9th Cir.1995))). However, while “this case looks like an easy...