ORDER ON DEFENDANTS’ MOTION TO DISMISS MEXICAN ACCIDENT CASES ON FORUM NON CONVENIENS GROUNDS
Defendants Bridgestone/Firestone North American Tire, LLC, successor to Bridgestone/Firestone, Inc., (“Firestone”) and Ford Motor Company (“Ford”) (collectively “Defendants”) filed a motion to dismiss certain Mexican accident cases on grounds of forum non conveniens, and subsequently, a motion to amend their motion to dismiss in order to direct it to all of the cases listed in this caption. For the reasons set forth in detail below, Defendants’ motion to amend is GRANTED, and Defendants’ motion to dismiss these Mexican accident cases for forum non conve-niens is GRANTED with respect to Plaintiffs Salazar, Soto, and Plaintiffs Manez-Lopez and DENIED with respect to Cisneros, Plaintiffs de Becerra, Plaintiffs Arjona, and Plaintiffs Sandoval. As a result of this ruling, the case of Sofía Lopez de Manez, et al. (IP 03-5790-C-B/S) is DISMISSED.
Factual and Procedural Background
Approximately 700 personal injury and wrongful death cases against Ford and/or Firestone have been filed in or removed to federal courts around the country alleging that defects in Ford Explorers and certain models of Firestone tires were responsible for the accidents causing the injuries suffered by Plaintiffs. The cases were transferred to this court by the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, on October 26, 2000. A number of these cases were filed by Plaintiffs who were injured in accidents that occurred in foreign countries, including Mexico. On January 10, 2003, Firestone filed a Motion to Dismiss Mexican Accident Cases on Forum Non Conveniens Grounds. This original forum non conve-niens motion applied to eight cases, only one of which, Rodolfo Cisneros (IP 01-5454-C-B/S), remains pending. However, also in the MDL as of January 10, 2003, but not included in Firestone’s motion of that date, was the case of Athenea Gonzalez de Becerra, et. al. (IP 02-5635-C-B/S). 1 Since the filing of Firestone’s January 10, 2003 motion, two additional Mexican accident cases have entered the MDL, Hugo Zacarías Sandoval, et al. (IP 03-5787-C-B/S) and Sofia Lopez de Manez, et al. (IP 03-5790-C-B/S).
Before the court is Firestone’s Motion to Amend its Motion to Dismiss Mexican Accident Cases on Forum Non Conveniens Grounds to include de Becerra, et al.; Sandoval, et al.; and de Manez, et al. Plaintiffs de Becerra, et al., and Sandoval, et al., filed responses thereto. Having considered Firestone’s motion to amend and Plaintiffs’ responses, the Court determines that it should be GRANTED. Firestone’s motion to dismiss is hereby amended to reflect the cases listed in the caption.
Next, we turn to the merits of Firestone’s motion to dismiss these Mexican cases on grounds of forum non conve-niens .. Defendants contend consistently that these cases involve Mexican citizens and residents injured in accidents occurring in Mexico. See, e.g., Defs.’ Memo. p. 2. Upon closer inspection, however, this description of the fact scenario is not always accurate. The case-specific facts follow.
Plaintiff Rodolfo Cisneros (“Cisneros”) alleges in his Complaint that he is a resident and citizen of Mexico. Cisneros Am. Compl. § II, p. 2. However, in our January 10, 2003 Order Denying [Cisneros’s] Motion to Remand, we found that Cisne-ros’s deposition testimony established that he is also a permanent resident alien of the United States residing in Texas. Id. pp. 2-3. Because Defendants relied on Cisne-ros’s Texas residency to establish its jurisdictional toehold justifying removal of this case to federal court under 28 U.S.C. § 1332(a), they cannot now disclaim it. We will therefore consider Cisneros a U.S. resident Plaintiff for purposes of this motion. Cisneros was injured on September 21, 2000, when a Firestone tire on the 1994 Jeep Cherokee he was driving failed, causing the vehicle to become uncontrollable and to roll over. Compl. § V, p. 6. The accident occurred in Mexico; Cisneros received medical treatment for his injuries in both the U.S. and Mexico. Defs.’ Memo p. 3. The allegedly faulty tire was designed and manufactured in the U.S. and/or Canada, and was sold to Cisneros in Weslaco, Texas. Id.; Compl. § V, pp. 5-6.
Athenea Gonzalez de Becerra, et al. (IP 02-5635-C-B/S)
Plaintiff Athenea Gonzalez de Becerra is a citizen of Mexico, but also a legal resident alien 2 of the United States residing in Texas. Her children, Plaintiffs Christopher Emmanuel Becerra and Athenea Elizabeth Becerra, are U.S. citizens and residents of the State of Texas, de Becer-ra, et. ah, Supplemental Mot. to Remand ¶ 2. (Collectively, Athenea, Christopher, and Athenea Elizabeth will be called “Plaintiffs de Becerra.”) Plaintiff Oziel R. Arjona, a citizen of Mexico, is a legal resident alien of the United States residing in California. Plaintiffs Norma D. Arjona, Oziel Evan Arjona, and Vanessa Arjona are U.S. citizens and residents of California. At the time of the accident, however, the Arjona family (collectively, “Plaintiffs Arjona”) was residing in Texas. Id. ¶ 3. Plaintiff Lizbeth Salazar Cantu and her children, Plaintiffs Wendy Maridol Rico Salazar and Salvador Rico Salazar (collectively “Plaintiffs Salazar”), as well as Plaintiff Juan Ezequiel Mendoza Soto (“Soto”) are citizens and residents of Mexico. Id. ¶ 4.
On May 10, 2000, the decedents of Plaintiffs de Becerra and Plaintiffs Salazar as well as Oziel R. Arjona and Soto were involved in a single vehicle accident on a highway outside Monterrey, Mexico. A Firestone tire on a 1998 Chevrolet Suburban driven by Rosa Maria Mejia Martinez failed, allegedly causing the deaths of Martinez and passengers Jose Manuel Becerra and Salvador Rico Lopez, and injuring passengers Oziel R. Arjona and Soto, de
Hugo Zacarías Sandoval, et. al. (IP 03-5787-C-B/S)
Plaintiff Hugo Zacarías Sandoval is a Mexican citizen and a legal permanent resident alien of the United States residing in Texas. Plaintiffs Anna Maria Serrano and Brenda Yanely Zacarías are U.S. citizens and residents of Texas. Sandoval Resp. ¶2.2. (Collectively, Hugo, Anna Maria, and Brenda will be known as “Plaintiffs Sandoval.”) On July 20, 2003, Hugo Zaca-rías Sandoval was driving a 1996 Ford Explorer from Monterrey to Nuevo Laredo, Mexico, when the tread of the right rear Firestone tire separated from the tire, causing the vehicle to lose control and rollover. Plaintiffs Sandoval sustained injuries; Plaintiffs Sandoval’s decedent, Hugo Zacarías, Jr., also suffered severe injuries from which he ultimately died. Id. ¶¶ 1.1-1.2.
Sofia Lopez de Manez, et al. (IP 03-5790-C-B/S)
Plaintiffs Sofía Lopez de Manez and her children, Plaintiffs Joseph Samuel Manez-Lopez and Kery Jennifer Manez-Lopez, (collectively “Plaintiffs Manez-Lopez”), are citizens and residents of Mexico. Manez-Lopez Compl. ¶ 2. On December 26, 2002, Plaintiffs Manez-Lopez’s decedent, Jose Samuel Manez-Reyes, was riding in a 1998 Ford Explorer on an expressway in Veracruz, Mexico, when the tread on the left-rear Firestone tire separated from the tire. The vehicle rolled over, fatally injuring him. The tire at issue was designed and tested in either Tennessee or Texas, manufactured in Canada, and attached to the subject vehicle in Kentucky. Id. ¶¶ 10-11.
For purposes of the following legal analysis, we group the above-named Plaintiffs as follows: (1) U.S. residents, including both U.S. citizens and resident aliens, and (2) foreign residents. Although our research has not uncovered a case explicitly dictating such a grouping, courts in other contexts have allowed U.S. resident aliens access to U.S. courts comparable to that of U.S. citizen-residents and greater than that of foreign residents.
See, e.g.,
28 U.S.C. § 1332(a) (“For [diversity jurisdiction purposes], an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled”); 46 U.S.C. § 688(b) (“No action may be maintained under [the Jones Act] or under any other maritime law of the United States for maintenance and cure or for damages for the injury or death of a person who was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action... ”);
In re Silicone Gel Breast Implant Products Liability Litig.,
Legal Analysis
Under the doctrine
oí forum non conveniens,
“a trial court may dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice.”
Kamel v. Hill-Rom Co., Inc.,
Adequate Alternative Forum
The first step in any
forum non conveniens
analysis is to determine whether there are adequate alternative forums in which to hear these cases.
Piper Aircraft Co. v. Reyno,
Defendants have stipulated that they will submit to personal jurisdiction in Mexico
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-and that they will not assert any statute of limitations defense based on the time that has elapsed while these cases were pending before this court. Defs.’ Memo. p. 1, n. 2. There is no indication that the Mexican courts would not accept such a stipulation. Therefore, Mexico is an available forum.
Gonzalez v. Chrysler Corp.,
Plaintiffs argue, however, that despite its availability, Mexico is an inadequate forum. They contend that certain evidence presumed admissible in the United States would not be admissible in Mexico, and that the Mexican judicial system’s lack of resources would result in an undue delay in the resolution of these cases. However, Mexico provides “some potential avenue for redress,” which is all that is required of an adequate alternative forum in a
forum non conveniens
analysis.
Kamel,
Numerous cases have held Mexico to be an adequate forum for tort litigation involving American-made products, despite differences in Mexican and U.S. substantive and procedural law.
See, e.g., Gonzalez,
Balancing the Interests
Having found Mexico to be both an available and an adequate forum, we turn to the task of balancing the private and public interest factors relevant to the choice of forum. Private factors are usually analyzed separately from public factors, and Defendants continue to bear the burden of persuasion as to this element of the
forum non conveniens
analysis.
In re Bridgestone/Firestone, Inc.,
At the outset, the parties dispute the degree of deference to which Plaintiffs are entitled with regard to their choice of forum. Before being transferred to the MDL, these cases were filed in either the Southern or the Western District of Texas. In
Piper,
the Supreme Court determined that “there is ordinarily a strong presumption in favor of the plaintiffs choice of forum, which may be overcome only when the private and public factors clearly point towards trial in the alternative forum.”
While it is reasonable to assume that a plaintiffs choice of her home forum is convenient, it is “much less reasonable” to presume convenience when a foreign plaintiff chooses a forum in the United States.
Id.
at 255-56,
Plaintiffs argue that the International Covenant on Civil and Political Rights (“the ICCPR”), of which both the United States and Mexico are signatories, accords the foreign resident Plaintiffs’ choice of forum “the same presumption of correctness enjoyed by U.S. citizens filing claims in these courts.” Pis.’ Resp. pp. 11-12. Article 14(1) of the ICCPR provides that “All persons shall be equal before the courts and tribunals [of all signatory countries].”
See Dubai Petroleum v. Kazi,
For the U.S. resident Plaintiffs, who currently reside or at the time of filing resided in Texas, trial in the Southern or Western District of Texas is very likely to be convenient. Consequently, the U.S. resident Plaintiffs are entitled to a strong presumption in favor of their choices- of forum. With regard to the foreign resident Plaintiffs, we conclude that Texas is less likely to be a convenient forum, and therefore, that this factor weighs in favor of dismissal of these cases on grounds of
forum non conveniens.
Any perceived difference in treatment between foreign and U.S. national plaintiffs is “not because of chauvinism or bias in favor of [United States] residents.”
Zermeno v. McDonnell Douglas Corp.,
Private Interest Factors
Next, we examine the private interest factors impacting the choice of forum. Important considerations concerning the private interests of the litigants include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive [including] questions as to the enforcibility [sic] of a judgment if one is obtained.”
In re Bridgestone/Firestone, Inc.,
We look first at ease of access to sources of proof, including documents and witness testimony, as they are often considered together.
See, e.g., Roynat v. Richmond Transp. Corp.,
Plaintiffs, however, assert that Defendants’ seemingly generous offers are il
To challenge Plaintiffs’ claims that the vehicles and/or tires were defective and the proximate cause of Plaintiffs’ injuries, Defendants will seek to introduce case-specific evidence of lack of causation, contributory negligence, and third-party negligence. This evidence may include testimony of witnesses to the accident, testimony and reports of accident investigators and emergency medical personnel, and records of vehicle maintenance. The accident-related evidence for all of the cases is located in Mexico, the site of all of the accidents. In addition, based on the facts before us, we think it likely that Plaintiffs’ vehicles were serviced and maintained near Plaintiffs’ places of residence-Texas for the U.S. resident Plaintiffs and Mexico for the foreign resident Plaintiffs.
Defendants assert that this case-specific evidence located in Mexico may not be available for trial in the U.S. because these sources of proof are outside of a federal court’s power of compulsory process and not under either party’s control.
See Urena Taylor v. Daimler Chrysler Gorp.,
Evidence of damages, like evidence of vehicle maintenance, tends to be found where Plaintiffs reside. Such evidence may consist of. medical, employment, and
In addition to the availability of certain documents and witnesses, we must consider the expense and inconvenience of translation. Regardless of where the cases are tried, some evidence will be presented in translation. For example, English translations of eyewitness and medical testimony would be necessary for proceedings in Texas. Mexican courts, in turn, would require Spanish translations of documents and testimony concerning the alleged defect, which Plaintiffs argue are voluminous. (Defendants do not address this issue.) In order to determine the effect of the need for translation on the
forum non conve-niens
analysis, we weigh the amount of evidence that must be translated if the trial remains in the U.S. forum against the amount of evidence to be translated if the trial is held in a foreign forum. We find that the necessity of translation weighs in favor of a U.S. forum because, for each case, the amount of accident-specific and damages-related evidence will be less than the amount of evidence needed to prove defect and damages.
In re Bridgestone/Firestone,
Another private interest factor, namely, the relevance and necessity of the fact finder having a view of the accident scene, weighs in favor of dismissal in all cases subject to the motion under consideration. Although of less importance because we assume photographs of the crash sites would be available to a Texas court, a Mexican court “would be aided by familiarity with [the local] topography.”
Piper,
Having discussed the various private interest factors, we now summarize them with respect to the U.S. resident and the foreign resident cases:
In the cases involving U.S. resident Plaintiffs, the question of which forum affords the greater access to proof is a fairly close one. Certain private interest factors are neutral: Defendants have pledged to make available in either forum documents discovered through the MDL as well as any of their employees that Plaintiffs wish to call as witnesses. They have also agreed to satisfy any final judgment rendered by an American or Mexican court. Certain other private interest factors favor trial in the U.S.: Evidence related to vehicle service, damages, and possibly Plaintiffs’ medical treatment would be found in Texas and in English. In addition, the large number of documents and depositions related to the alleged product defects would not have to be translated into Spanish. Yet other private interest factors, however, favor trial in Mexico: View of an accident scene is possible only by a local, Mexican court. Evidence pertaining to the accident, its investigation, and perhaps Plaintiffs’ emergency medical treatment would likely be in Spanish and located in Mexico, outside a U.S. federal court’s power of compulsory process. Although one may generally infer that these sources of
In the foreign resident Plaintiffs’ cases, however, we conclude that access to sources of proof would be greater in Mexican courts. As stated above, Defendants have stipulated that’ they will make available in either forum documents and deposition testimony discovered through the MDL as well as any employees whom Plaintiffs wish to call as fact witnesses. Defendants have also agreed not to challenge the admission into evidence of copies of these documents and to satisfy any final judgment rendered by a Mexican court. Any third-party defendants and all of the documentary evidence and witnesses related to the accident, the investigation of the accident by law enforcement, the emergency medical treatment received by Plaintiffs, the service of Plaintiffs’ vehicles, and the measurement of Plaintiffs’ damages would be found in Mexico, outside compulsory process in the United States. A Mexican court would also be able to view the accident scene. Although the issue of translation weighs in favor of retaining jurisdiction in the U.S., following the weight of authority, we find that the burden of translation does not outweigh the benefit of easier access to proof in the Mexican courts.
See, e.g., Zermeno,
Public Interest Factors
Next we consider the public interest factors. The public interest factors focus on the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
In re Bridgestone/Firestone, Inc.,
First, with regard to court congestion, the burden of trial does not fall on our court, a fact which makes us slightly less comfortable with determining where these cases can best be accommodated. While federal courts in Texas have crowded dockets,
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“Defendant’s description of the [Mexican] alternative is not sufficiently detailed to permit the court to make an informed comparison or balance.”
Prevision Integral de Servicios Funerarios, S.A. v. Kraft,
Next, we examine the respective local interests of the forums under consideration. In the U.S. resident cases, Texas has an interest in protecting the health and safety of its residents, but this interest must be weighed against Mexico’s interest in regulating the use of allegedly defective products within its borders. In the foreign resident cases, Mexico has an interest in protecting the health and safety of its residents as well as an interest in regulating potentially dangerous products used within its borders. Plaintiffs also argue that the United States as a whole has an interest “in regulating the conduct of companies that operate their global business from within these borders,” Pis.’ Br. p. 29.
Plaintiffs recite the maxim that a defendant’s home forum, in this case a U.S. federal court, has a strong interest in providing a forum for redress of injuries caused by its citizens. This maxim holds true in the U.S. resident cases because it supports the right of U.S. citizens and permanent residents to access U.S. courts in order to seek redress for their grievances.
See Reid-Walen v. Hansen,
Related to the idea that Mexico and Texas both have an interest in protecting the lives and health of their respective residents is the idea that it would not be unduly burdensome for other residents of these related forums to be pressed into jury service. Thus, allocating the burden of jury duty also supports retention of the U.S. resident cases and dismissal of the foreign resident cases.
The choice-of-law analysis required to balance the remaining public interest factors, “the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action” and “the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law,” is complicated and ultimately unnecessary to the resolution of this motion. Many courts have found that Mexican law applies to accidents occurring in Mexico and involving Mexican citizens/residents.
See, e.g., Vasquez v. Bridgestone/Firestone, Inc.,
Similarly, with regard to the U.S. resident cases, even if we were to assume
arguendo,
as Defendants contend, that Mexican law governs the resolution of Plaintiffs’ claims of liability and compensatory damages, the balance of public interest factors does not compel the dismissal of these cases on the ground of
forum non conveniens.
Defendants do not assert that Mexican law would apply to issues of punitive or exemplary damages.
See
Defs.’ Mot. to Determine and Apply the Law of Mexico at p. 1, n. 1. In addition, when the presumption in favor of a U.S. resident’s choice of her home forum and the private interest factors weigh heavily in favor of retaining jurisdiction of these cases, we have no doubt that the federal courts in Texas will be up to the task of applying the law of Mexico, if and as necessary.
See In re Bridgestone/Firestone,
Conclusion
For the reasons explicated above, we find that: (1) for the purpose of deciding this motion, the Plaintiffs in these Mexican accident cases are best divided into two groups based on their residency, U.S. and foreign; (2) the U.S. resident Plaintiffs’s cases should not be dismissed on grounds of forum non conveniens because the presumption of convenience accorded a plaintiffs choice of her home forum as well as the balance of private and public interest factors clearly points toward retention of these cases in the federal courts of Texas; and (3) the foreign resident Plaintiffs’ cases, however, should be dismissed on grounds of forum non conveniens because a plaintiffs choice of forum different from her home forum is less likely to be convenient, a conclusion supported by a weighing of private and public interest factors that clearly points toward dismissal of these cases to Mexico. Accordingly, Defendants Motion to Amend the Motion to Dismiss Mexican Accident Cases on Forum Non Conveniens Grounds is GRANTED, and Defendants Motion to Dismiss the Mexican Accident Cases on Forum Non Conveniens Grounds is GRANTED with respect to the foreign resident Plaintiffs (Plaintiffs Salazar, Soto, and Plaintiffs Ma-nez-Lopez) and DENIED with respect to the U.S. resident Plaintiffs (Cisneros, Plaintiffs de Becerra, Plaintiffs Arjona, and Plaintiffs Sandoval). As a result of this ruling, the case of Sofia Lopez de Manez, et al. (IP 03-5790-C-B/S) is DISMISSED.
Notes
. This court received, from the Judicial Panel on Multi-District Litigation, a Certified Transfer Order for the de Becerra case on June 21, 2002.
. The U.S. Citizenship and Immigration Service gives the term "resident alien” three different meanings, all of which apply "to non-U.S. citizens currently residing in the United States.” The term may refer to a permanent resident, a conditional resident, and a returning resident. A permanent resident is defined as "any person not a citizen of the United States who is residing in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant.” A conditional resident is "any alien granted permanent resident status on a conditional basis (e.g., a spouse of a U.S. citizen; an immigrant investor), who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status.” Finally, a returning resident is "any lawful permanent resident who has been outside the United States and is returning to the U.S.” See http://us-cis.gov/graphics/glossary3.htin. The meaning of "resident alien” as applied to Athenea Gonzalez de Becerra and Oziel R. Arjona is not specified. However, all three resident alien classifications have a permanent resident element, which is sufficient for the purposes of our analysis.
. We recognize that Mexico is a federal republic, comprised of 31 states and one federal district, each of which' has its own laws. See http://www.cia.gOv/c ia/publications/fact-book/geos/mx.html# Intro. To avoid undue complexity, however, we refer, in general, to "Mexico,” “Mexican law,” and "Mexican courts.”
. The fact-specific discovery deadlines for U.S. resident Plaintiffs Sandoval and foreign resident Plaintiffs Manez-Lopez are set for later this spring. Therefore, we do not draw any inferences from the parties’ failure to identify any specific document, witness or third-party defendant in Mexico that would be unavailable for trial in the U.S.
. The Southern District of Texas, the only district for which information was readily and publicly available, has a greater number of weighted filings per judgeship than the national average. In addition, it completes slightly more than twice the number of trials
. The Eighth Circuit suggested that it would treat U.S. permanent residents like U.S. citizens.
See Reid-Walen,