Morales v. Ford Motor Co.

• Decision Date: 31 March 2004
• Docket Number: No. CIV.A. B-03-061.,CIV.A. B-03-061.
• Parties: Jorge Enrique Pineda MORALES et al., Plaintiffs, v. FORD MOTOR CO., Defendant.
• Court: U.S. District Court — Southern District of Texas

Page 672

313 F.Supp.2d 672

Jorge Enrique Pineda MORALES et al., Plaintiffs, v. FORD MOTOR CO., Defendant.

No. CIV.A. B-03-061.

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

March 31, 2004.

Mr. Mark A. Cantu, Mr. Juan Antonio Gonzalez, Office of Mark Cantu, McAllen, TX, for Petitioner.

Mr. Jaime Arturo Saenz, Rodriguez, Colvin, Chaney, Saenz, L.L.P., Brownsville, TX, Mr. Ronald D. Wamsted, Brown McCarroll and Oaks Hartline, Austin, TX, for Respondents.

MEMORANDUM OPINION

HANEN, District Judge.

The Defendant removed this suit from the 107th Judicial District Court, Cameron County, Texas, to this court on March 21, 2003. Docket No. 1. Subsequently, the Defendant filed a "Motion to Dismiss on Forum Non Conveniens Grounds." Docket No. 13. The parties have presented arguments concerning the said motion over an extended period of time in multiple filings. See Docket Nos. 19, 21, 34, 42. For the reasons elaborated below, the court GRANTS the Defendant's motion and DISMISSES this case subject to the conditions enumerated in the conclusion of this memorandum opinion.

I. FORUM NON CONVENIENS DOCTRINE

"[F]ederal courts have discretion to dismiss ... actions, in certain narrow circumstances, under the common-law doctrine of forum non conveniens." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ("The doctrine leaves much to the discretion of the court to which the plaintiff resorts ..."). Provided that the applicable circumstances exist, federal courts may dismiss any given case even though "jurisdiction and proper venue are established," but only when there is an alternative forum abroad. Am. Dredging Co. v. Miller, 510 U.S. 443, 448-49 & n. 2, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). In general, "the central focus of the forum non conveniens inquiry is convenience" and "dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). More particularly, federal courts consider forum non conveniens motions under the analytical framework established in Gulf Oil Corp. and its progeny.¹

The Fifth Circuit Court of Appeals has essentially distilled the Gulf Oil Corp. standard into a tripartite test. Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 835 (5th Cir.1993), cert. denied, 508 U.S. 973, 113 S.Ct. 2963, 125 L.Ed.2d 663 (1993). In order to obtain dismissal on the ground of forum non conveniens, a defendant must first demonstrate "the existence of an available and adequate alternative forum." Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir.2003). If the existence of such a forum has been demonstrated, the court must then proceed to examine a host of "private interest factors." Gonzalez v. Chrysler Corp., 301 F.3d 377, 380 (5th Cir.2002), cert. denied, 538 U.S. 1012, 123 S.Ct. 1928, 155 L.Ed.2d 848 (2003). These private factors include, but are not limited to, the following:

(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling, and the costs of obtaining attendance of willing, witnesses; (3) probability of an opportunity to view the premises, if view would be appropriate to the action; and (4) other factors affecting the ease, speed, and expense of trial or the enforceability of a judgment if obtained.

Baumgart, 981 F.2d at 835-36 (citing Gulf Oil Corp., 330 U.S. at 508, 67 S.Ct. 839). If these factors counsel dismissal, then the court need not proceed further. Id. at 837, 67 S.Ct. 839; see also Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 376 (5th Cir.1992) ("Given the availability of an adequate forum in the Netherlands and the balance of private interest factors favoring dismissal, the district court had no need to consider the public interest factors."). However, if the private interest factors do not weigh in favor of dismissal, then the court proceeds to examine a series of "public interest factors." Gonzalez, 301 F.3d at 380. These public interest factors include, but are not limited to, the following:

(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized controversies resolved at home; (3) the interest in having the trial of a diversity case in the forum that is familiar with the law that must govern the action; (4) the avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and (5) the unfairness of burdening citizens in an unrelated forum with jury duty.

Baumgart, 981 F.2d at 837 n. 14 (citing Gulf Oil Corp., 330 U.S. at 508, 67 S.Ct. 839). These lists of private and public interest factors are "by no means exhaustive, and some factors may not be relevant in the context of a particular case." Van Cauwenberghe v. Biard, 486 U.S. 517, 528-29, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). Considered in conjunction with one another, these factors provide for a flexible inquiry; accordingly, no one factor is dispositive. Piper Aircraft Co., 454 U.S. at 249-50, 102 S.Ct. 252.

II. AVAILABILITY AND ADEQUACY OF THE ALTERNATIVE FORUM

The first step in the forum non conveniens inquiry entails two distinct determinations. See Vasquez, 325 F.3d at 671 ("Forum availability and adequacy are separate inquiries."); In re Air Crash Disaster Near New Orleans, Louisiana On July 9, 1982, 821 F.2d 1147, 1165 (5th Cir.1987) (en banc) ("The district court must first decide whether an available and adequate foreign forum exists. This is a two-part inquiry: availability and adequacy."), vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989), reinstated on remand save as to damages, 883 F.2d 17 (5th Cir.1989) (en banc) (per curiam). A forum is "available" if it has the ability to assert jurisdiction over "the entire case and all parties." Vasquez, 325 F.3d at 671. "An alternative forum is adequate if `the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court.'" Id. (quoting Gonzalez, 301 F.3d at 379-80).

Notwithstanding some confusion over terminology, the parties do not dispute the adequacy of Venezuelan courts to hear this matter.² Instead, the issue is availability. Based on the opinion of one of Plaintiffs' experts, Plaintiffs assert that a Venezuelan court would not exercise jurisdiction over this matter. Docket No. 19 at 7-10. Although another United States District Court has accepted the analysis advanced by the Plaintiffs and their expert, see In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 190 F.Supp.2d 1125, 1130-32 (S.D.Ind.2002), this court cannot agree with the aforesaid analysis. Boiled down to its essence, the Plaintiffs maintain that, because the Plaintiffs are unwilling to submit their case to the Venezuelan judiciary, it is "unavailable" as that term is understood in the law of forum non conveniens. The Plaintiffs write:

Article 40(4) of the [Venezuelan] Statute of Private International Law provides that "Venezuelan Courts shall have jurisdiction to hear trials resulting from the filing of actions in property when the parties should expressly or tacitly submit to their jurisdiction." EXHIBIT B (emphasis added). Dr. deMaekelt states that, a plain reading of Article 40(4) in conjunction with the provision of Article 44 which provides that express submission shall be evidenced in writing, means that a Venezuelan court would not exercise jurisdiction over the actions at issue here unless Plaintiffs and the Defendant submit a writing executed by both parties that expressly submits to the jurisdiction of a Venezuelan court. deMaekelt Aff. II ¶¶ 9-10. For purposes of forum non conveniens analysis, a Venezuelan court will not be available as an alternative forum unless both parties submit to their jurisdiction. deMaekelt Aff. II ¶¶ 9-10. In the case at bar, because Plaintiffs brought their case in the United States, they are not expressly submitting to the jurisdiction of Venezuelan courts.

Docket No. 19 at 9-10 (emphasis in original).

The Plaintiffs, however, have confused their willingness to avail themselves of the Venezuelan forum for its availability. Only the latter concern is relevant to the forum non conveniens inquiry. Supreme Court and the Fifth Circuit case law makes it clear that a foreign forum is available to plaintiffs haling from the forum's country if the defendant submits itself to the foreign jurisdiction. See Piper Aircraft Co., 454 U.S. at 254 n. 22, 102 S.Ct. 252 ("At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is `amenable to process' in the other jurisdiction."); Gonzalez, 301 F.3d at 380 ("It is undisputed that Mexico is an amenable forum because the defendants have agreed to submit to the jurisdiction of the Mexican courts."); Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1245 (5th Cir.1983) ("We hold instead that defendant's submission to the jurisdiction of an alternative forum renders that forum available for the purposes of forum non conveniens analysis."); Vaz Borralho v. Keydril Co., 696 F.2d 379, 393 (5th Cir.1983) (stating that "an agreement by a defendant to submit to the jurisdiction of the foreign forum will satisfy the doctrine's requirement of two forums in which the defendant is amenable to process"), abrogated on other grounds, In re Air Crash, 821 F.2d at 1163 n. 25. The Defendant has made it clear that it will...