Benz Group, Lynx Petroleum, Ltd., Robert Samuel Braswell, IV., Fortune Jaubert Alexander, Tom Schmidt and Benz Liquidation, LLC v. Flavio MacH Barreto
404 S.W.3d 92
Tex. App.2013Background
- Brokers sued Flávio Barreto and ETX Servicos De Perfuraçao et Sondagem for unpaid commissions on a Petrobras project in Brazil.
- Contract negotiations and primary meetings occurred in Brazil; ETX and IROME’s contract was Brazilian-governed with Brazilian courts as proper forum.
- ETX expanded its role in the Petrobras project in late 2008 and continued for eight years.
- Brokers alleged an oral partnership with Barreto/ETX providing for 4% of gross profits; several non-Brazilian participants were identified.
- Barreto moved to dismiss under the doctrine of forum non conveniens; trial court granted dismissal; brokers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brazil is an adequate alternative forum | Barreto’s Brazil forum is available and adequate | Brazil is available; governing contract and witnesses largely in Brazil | Yes; Brazil is an adequate forum |
| Whether private interests favor dismissal | Texas forum should be favored due to plaintiff residence | Most witnesses/proofs located outside Texas; Brazil better forum | Private interests weighed in favor of dismissal |
| Whether public interests favor dismissal | Texas procedures and law should apply; forum is Texas | Brazilese nexus and lack of treaty support enforcement; public policy favors Brazil | Public interests weighed in favor of dismissal |
| Whether the trial court properly balanced the forum non conveniens factors given the record | Record shows forum isn’t appropriately burdensome to keep in Texas | Record supports transfer to Brazil under Gulf Oil test | Court acted within discretion; balance weighed toward dismissal |
Key Cases Cited
- Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (establishes Gilbert test for forum non conveniens)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (balanced considerations; strong preference for plaintiff’s forum absent strong reasons)
- Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28 (Tex. 2010) (deference to trial court’s forum non conveniens ruling; weighing private/public interests)
- In re Omega Protein, Inc., 288 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2009) (application of Gulf Oil framework to determine dismissal)
- In re Pirelli Tire, L.L.C., 247 S.W.3d 670 (Tex. 2007) (plurality guidance on Gulf Oil test in forum non conveniens)
- Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico, S.A., 336 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2010) (expansion of international commerce factors in balancing equities)
- DTEX LLC v. BBVA Bancomer, S.A., 508 F.3d 785 (5th Cir. 2007) (recognizes Gulf Oil framework in international disputes)
- Easter v. Technetics Mgmt. Corp., 135 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2004) (discusses deference to resident-plaintiff forum choice; later developments limited)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse-of-discretion standard for forum non conveniens)
- Arising context for international disputes, 821 F.2d 1147 (5th Cir. 1987) (illustrative precedent on forum transfer considerations)