In re Oceanografia, S.A. de C.V., Otto Candies LLC

• Decision Date: 01 July 2016
• Docket Number: No. 14–0963,14–0963
• Citation: 494 S.W.3d 728
• Parties: In re Oceanografia, S.A. de C.V., Otto Candies LLC, Candies Mexican Investments, and OSA International, Relators
• Court: Texas Supreme Court

494 S.W.3d 728

In re Oceanografia, S.A. de C.V., Otto Candies LLC, Candies Mexican Investments, and OSA International, Relators

No. 14–0963

Supreme Court of Texas.

Opinion delivered: July 1, 2016

David G. Oliveira, Roerig Oliveira & Fisher LLP, McAllen, Jason A. Itkin, Kurt Brynilde Arnold, Arnold & Itkin LLP, Russell S. Post, Beck Redden LLP, William Robert Peterson, Morgan, Lewis & Bockius LLP, Houston, for Real Party in Interest Marisela Olan Jimenez.

Alfred J. Rufty III, Harris & Rufty, LLC, New Orleans, LA, Eduardo R. Rodriguez, Atlas Hall Rodriguez, LLP, Brownsville, for Relators Candies Mexican Investments, Oceanografia, S.A. de C.V., OSA International, Otto Candies LLC.

PER CURIAM

The Seba'an, a merchant vessel registered in Mexico and sailing under the Mexican flag with a Mexican crew, was ferrying workers, all citizens of Mexico, from the Mexican port of Ciudad del Carmen to an offshore drilling site when it caught fire and sank off the coast of Mexico. One worker drowned. The others were rescued. All the survivors still live in Mexico except one, who lives in Illinois. Oceanografia, S.A. de C.V., a Mexican entity, operated the ship and employed its captain and crew. Oceanografia chartered the ship from its owner, Candies Mexican Investments, S. de R.L. de C.V. (CMI), a Mexican entity controlled by an affiliate, Otto Candies LLC, a Louisiana entity. Oceanografia's marketing affiliate, OSA International, LLC, is a Texas entity, though it was not created until after the incident.

The deceased worker's beneficiaries and 91 of the surviving workers sued Oceanografia, CMI, Otto Candies, and OSA for damages in a district court in Cameron County, Texas. The trial court refused to dismiss the action for forum non conveniens under Section 71.051 of the Texas Civil Practice and Remedies Code

. The court of appeals denied mandamus relief, concluding that defendants' lack of diligence in pursuing relief had prejudiced plaintiffs. 492 S.W.3d 330 (Tex.App.–Corpus Christi–Edinburg, orig. proceeding) (mem. op.). We grant relief.

Plaintiffs filed suit in July 2008. Oceanografia, CMI, and Otto Candies moved to dismiss based on forum non conveniens, and Oceanografia filed a special appearance. In March and April 2010, the trial court overruled the special appearance and denied the motion to dismiss. Oceanografia appealed the former ruling. The court of appeals affirmed in December 2011, Oceanografia, S.A. de C.V. v. Hernandez, No. 13–10–00223–CV, 2011 WL 6142789 (Tex.App.–Corpus Christi–Edinburg Dec. 8, 2011, pet. denied)

(mem.op.), and we denied Oceanografia's petition for review in June 2013, 56 Tex. Sup.Ct. J. 613 (June 7, 2013).

Oceanografia's appeal stayed commencement of a trial, see Tex. Civ. Prac. & Rem. Code § 51.014(b)

, but the parties engaged in discovery. Seven plaintiffs were deposed and some documents exchanged. Two attempts at mediation were unsuccessful. Plaintiffs moved the trial court to conduct separate trials for groups of plaintiffs, beginning with an initial group of eight. In August 2013, defendants moved for summary judgment. In April 2014, defendants jointly moved for reconsideration of the motions to dismiss, though OSA had not previously filed a motion to dismiss. The court denied reconsideration but allowed the plaintiffs who had been unable to obtain visas to enter the United States to withdraw from the first trial group. In June 2014, defendants sought mandamus relief from the court of appeals.

Whether a party's delay in asserting its rights precludes mandamus relief depends on the circumstances. In Rivercenter Associates v. Rivera,

we denied review of a trial court's refusal to enforce a waiver of jury trial in a commercial lease because of the plaintiff's unjustified four-month delay in moving to quash the defendant's jury demand. 858 S.W.2d 366, 367 (Tex.1993). But in In re International Profit Associates, Inc., we held that neither a party's four-month delay in obtaining a hearing on its motion to dismiss based on a contractual forum-selection clause, nor the following eight-month delay in obtaining a corrected order denying the motion, precluded mandamus review because the delays were not the party's fault. 274 S.W.3d 672, 675–76 (Tex.2009)

. And in In re E.I. du Pont de Nemours & Co., a case much like the present one, we held that a defendant's four-year delay in moving for dismissal for forum non conveniens under Section 71.052 while challenging in personam jurisdiction did not preclude mandamus relief, especially when the delay had not prejudiced the plaintiffs. 92 S.W.3d 517, 524–25 (Tex.2002) (DuPont ). We said:

The plaintiffs argue that by asserting special appearances and conducting limited discovery DuPont waived any relief under [the forum non conveniens statute]. The plaintiffs have failed to show how the delay has prejudiced them in any way. Even if they had made such a showing, the plaintiffs cite nothing to indicate that the Legislature intended for a defendant to elect between a special appearance and a motion to dismiss under [the statute]. Absent any such legislative intention, we cannot conclude that a party must exercise its rights under [the statute] when to do so would compromise its assertion that the trial court lacked personal jurisdiction over it.

Id.

Oceanografia, like DuPont, cannot be faulted for the delay in seeking mandamus relief from the denial of its motion to dismiss for forum non conveniens when to press ahead might have compromised its appeal of the denial of its special appearance. Nor was CMI's and Otto Candies's decision to await Oceanografia's jurisdictional appeal unreasonable. Plaintiffs argue that defendants should have sought mandamus relief immediately after the appeal was over. Defendants counter that their nine-month delay in moving for reconsideration of the motions to dismiss after the appeal ended was not unreasonable because of developing evidence that plaintiffs would have to be tried in groups and some of the plaintiffs would not even be allowed into the United States. We agree. OSA's delay in tagging along on the motion for reconsideration did not contribute to the delay in obtaining a ruling or in seeking mandamus review.

Moreover, plaintiffs, like those in DuPont,

have shown no prejudice from any delay. They argue that Oceanografia should not be permitted to move for summary judgment and wait for an unfavorable ruling before pursuing its motion to dismiss for forum non conveniens . But the trial court never ruled on the motion for summary judgment. Plaintiffs argue that they incurred litigation expenses after the motions to dismiss were initially denied, but they have not demonstrated why their litigation efforts to date cannot be fully used in a trial in Mexico. Plaintiffs argue in passing that defendants' delay in moving for reconsideration until two months before a trial setting caused them to incur trial preparation expenses that are now lost. But plaintiffs have provided no detail whatsoever regarding any such expenses.

In this case, as in DuPont

, defendants' delay in seeking dismissal for forum non conveniens was not unreasonable. Defendants' explanations were sufficient to show that they did not “slumber on their rights.” Rivercenter, 858 S.W.2d at 367. And as in DuPont, defendants' delay did not prejudice plaintiffs.

Section 71.051(b)

lists six factors to be considered in determining whether a claim should be dismissed for forum non conveniens :

(1) an alternate forum exists in which the claim or action may be tried; (2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff's claim;

(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result

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