In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1827
IN RE: BRIDGESTONE/FIRESTONE, INC.,
TIRES PRODUCT LIABILITY ACTION.
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Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 03-5790-C-B/S—Sarah Evans Barker, Judge.
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ARGUED DECEMBER 10, 2004—DECIDED AUGUST 24, 2005
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Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. José Samuel Mañez-Reyes, a
Mexican soccer professional of some note, died on the day
after Christmas, 2002, when his Ford Explorer rolled over
in Veracruz, Mexico. His family sued the Ford Motor
Company and Bridgestone/Firestone, Inc., in Val Verde
County, Texas, alleging that a defect in one of the Ex-
plorer’s Firestone tires caused the accident. After being
removed to the Western District of Texas, the case was
transferred to the Southern District of Indiana, joining
the over 700 cases that are part of the Bridgestone/
Firestone Multidistrict Litigation (MDL). In February 2004,
the district court granted in part and denied in part the
defendants’ forum non conveniens motion, which sought to
dismiss the four cases stemming from accidents that
occurred in Mexico. The court determined that the three
accidents involving U.S. resident plaintiffs should be
litigated in the United States, while the one complaint
2 No. 04-1827
involving a Mexican resident, the Mañez-Reyes case, should
be litigated in Mexico. The Mañez-Reyes family appealed.
In light of some potentially relevant intervening events, we
remand to the district court for further findings.
I
The common law doctrine of forum non conveniens
allows a trial court to “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., 108 F.3d 799, 802 (7th Cir. 1997). Before a court
should grant a defendant’s motion, the plaintiff’s chosen
forum must be “oppressive and vexatious to the defen-
dant, out of all proportion to the plaintiff’s convenience.” In
re Ford Motor Co., 344 F.3d 648, 651 (7th Cir. 2003) (citing
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)). The
district court should not deem itself inconvenient, however,
unless the defendant is able to identify an adequate
alternative forum. See Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 506-07 (1947) (noting that the doctrine of forum non
conveniens “presupposes at least two forums in which the
defendant is amenable to process”). After all, it is tough to
argue that the present forum—which by definition has both
subject matter jurisdiction and personal jurisdiction over all
parties—is “out of all proportion to plaintiff’s convenience,”
when the plaintiff has no other options. Assessing whether
an alternative forum exists involves a two-part inquiry:
availability and adequacy. Kamel, 108 F.3d at 802. A forum
is “available” if “all parties are amenable to process and are
within the forum’s jurisdiction.” Id. at 803 (citing Piper, 454
U.S. at 254 n.22). A forum is “adequate” if “the parties will
not be deprived of all remedies or treated unfairly.” Id.
If an adequate alternative forum is available, the court
decides whether to keep or dismiss the case by weighing
various private and public interest factors. See, e.g., In re
No. 04-1827 3
Ford Motor Co., 344 F.3d at 651. The private interest
factors 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.”
Gulf Oil Corp., 330 U.S. at 508. Among the public interest
factors are “the administrative difficulties stemming from
court congestion; the local interest in having localized
disputes 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 conflicts of laws or in the application of foreign
law; and the unfairness of burdening citizens in an unre-
lated forum with jury duty.” Kamel, 108 F.3d at 803 (citing
Piper Aircraft, 454 U.S. at 241 n.6). “[U]nless the balance is
strongly in favor of the defendant, the plaintiff’s choice of
forum should rarely be disturbed.” Gulf Oil Corp., 330 U.S.
at 508.
Initially (an important qualification, as we are about
to see), the parties agreed that Mexico was an adequate and
available alternative forum. The plaintiffs’ opening brief
addressed only the district court’s balancing of the private
and public interest factors. On this ground, the plaintiffs
argued that although a foreign plaintiff’s choice of forum
deserves less deference than the choice made by a U.S.
citizen or resident, see Kamel, 108 F.3d at 803, the court’s
decision to dismiss their case because they are Mexican
citizens and residents was capricious and unfair. We do not
approach the district court’s decision to dismiss on a clean
slate, however. To rule in favor of the Mañez-Reyes family,
we would have to conclude that the district court’s analysis
of the private and public interest factors constituted an
abuse of discretion. See Piper Aircraft, 454 U.S. at 257
(“The forum non conveniens determination is committed to
4 No. 04-1827
the sound discretion of the trial court.”). On the state of the
record as it was before the district court, it would be
impossible for us to come to that conclusion. Indeed, from
that perspective, the court’s decision to hinge its forum non
conveniens determination on the residence of the plaintiff
was quite reasonable.
The MDL is now in its final stages and most of the
collective, U.S.-specific information has already been
established. Discovery concerning the design and manu-
facture of the tires ended in 2002 and thus most of the
evidence that remains to be collected concerns the partic-
ulars of each individual accident. Accident-specific evidence
is likely to be found near where the accident occurred or
near where the plaintiff resides. In this case, both the
residence of the plaintiffs and the location of the accident is
Mexico. José Mañez-Reyes’s medical, employment, vehicle,
and tax records are in Mexico, as is evidence of the family’s
pain and suffering.
The public interest factors also support the soundness
of the district court’s decision. The court did not have
sufficient evidence to enable it to assess the congestion
of Mexican courts, but given the overwhelming docket
now being carried by the district courts in Texas, the
judge concluded that this factor would be a wash at
best. The parties have offered nothing to disrupt this
conclusion. As for the respective local interests, the court
noted that while the United States has an interest in
regulating domestic companies, its interest is matched
by Mexico’s interest in regulating the use of allegedly
defective products within its borders. Mexico also has an
interest in protecting the health and safety of its resi-
dents. As for pressing jurors into service, the citizens of the
Western District of Texas have no connection to the Mañez-
Reyes accident. The family does not reside there, the
accident did not occur there, and the tires at issue were
neither designed nor manufactured there.
No. 04-1827 5
II
Given the reasonableness of the court’s conclusion and
particularly given the abuse of discretion standard of review
we apply to forum non conveniens decisions, this case looks
like an easy candidate for a straightforward affirmance. But
there is a wrinkle. The parties notified this court that while
this appeal was pending, the Mañez-Reyes family sued
Bridgestone/Firestone and Ford in the Fourth Court of First
Instance for Civil Cases of the First Judicial District in
Morelos, Mexico. That court determined that it did not have
jurisdiction to hear the case, a ruling “confirmed” by the
Auxiliary Chamber of the Supreme Court of Justice of the
State of Morelos. The Morelos Court of First Instance
determined that because “the defendants have their main
administration outside the territory of Mexico, [and be-
cause] the acts charged and that constitute the grounds for
the lawsuit, consisting of the design and manufacture of a
tire and a vehicle, were performed by persons legally
independent of the person whose domicile is located within
the territory of this court . . . , it is appropriate to declare
the lack of jurisdiction of this Court to try the matter
brought before it.” Essentially, the court found that it did
not have personal jurisdiction over Ford and Bridgestone/
Firestone. Thus, on the face of things, it appears that the
very first forum non conveniens requirement—an avail-
able alternative forum—is no longer satisfied. Mexico,
apparently, has refused to hear the case.
We gave the defendants an opportunity to respond to
the judicial documents tendered to this court by the plain-
tiffs. In a nutshell, the defendants urge us either to disre-
gard those documents or to conclude that they are insuffi-
cient to prove that a Mexican forum is truly unavailable.
First, the defendants argue that we should ignore
the Morelos courts’ rulings because the plaintiffs have
waived the right to argue that Mexico is an unavailable
forum. Yet waiver does not apply on these facts. Assuming
6 No. 04-1827
the plaintiffs acted in good faith (an issue to which we shall
turn in a moment), the plaintiffs could not have known that
Mexico would reject their claims. At the time the district
court ruled, there was (as it said) “no indication that the
Mexican courts would not accept” the defendants’ stipula-
tion submitting to personal jurisdiction in Mexico.
Given the shared assumption that Mexico would take
the case, we thought it appropriate to take judicial notice of
the existence of the rulings of the Mexican courts that the
plaintiffs proffered. But we emphasize that it is only the
existence of these rulings we are recognizing; as we explain
below, we make no assumptions about what those rulings
do or do not establish. It would be unfair, however, to
pretend that nothing had occurred at all, particularly
because the district court’s assumption about the availabil-
ity of a Mexican forum might, in the end, prove to be
erroneous. Cf. McKnight v. General Motors Corp., 908 F.2d
104, 108 (7th Cir. 1990) (“A party should be allowed to take
advantage of a decision rendered during the pendency of his
case, even if he had not reserved the point decided, if the
decision could not reasonably have been anticipated.”).
Our caution about the actions of the Mexican courts
arises from information proffered in the defendants’
responses. According to the defendants, a suspicious haze
surrounds the plaintiffs’ actions in Mexico. The plaintiffs
apparently did not inform Bridgestone/Firestone of the
Mexican proceedings nor did they inform the Morelos courts
of the on-going proceedings in the United States. The
plaintiffs insist that they did not have to notify the defen-
dants because, “in Mexico a defendant is notified of a
lawsuit and is required to respond only pursuant to a court
order admitting the case for further proceedings, which is
issued only after the Mexican trial judge first makes a
determination . . . that the court . . . has jurisdiction to hear
the case.” As for informing the Morelos court of the proceed-
ings north of the border, the plaintiffs contend that this
No. 04-1827 7
information “would not have been relevant to the Morelos
trial judge’s determination of domicile for the purposes of
jurisdiction.” The defendants disagree. They argue with
some force that the Morelos court would have asserted
jurisdiction over the complaint had it known that the
defendants were willing to submit to its jurisdiction.
It is also unclear why the plaintiffs sued the defen-
dants in the Mexican state of Morelos instead of Veracruz,
where the accident occurred. The plaintiffs contend that
they had to file in Morelos because it is the only state in
Mexico where the defendants are domiciled. According to
submissions by the plaintiffs’ expert on Mexican law, the
plaintiffs’ claim could “be prosecuted only in the forum
where the defendant responsible for the design or manufac-
ture of the product is domiciled in Mexico.” This too may or
may not be so. Before the district court, the defendants
submitted declarations from two Mexican law professors
who assured the court that the Veracruz courts would
accept the case so long as the defendants did not object. The
plaintiffs did not contest these conclusions at the time.
While we have substantial misgivings about the plaintiffs’
actions, we do not have an adequate record to assess
whether the plaintiffs’ actions were taken in good faith.
Given these uncertainties, we believe it prudent to vacate
the district court’s dismissal and order a remand so that the
district court can thoroughly explore the circum-
stances surrounding the Morelos decisions. See Bank of
Credit and Commerce Int’l (Overseas) Ltd. v. State Bank of
Pakistan, 273 F.3d 241, 246-47 (2d Cir. 2001) (remanding
the district court’s forum non conveniens dismissal after
a key Pakistani law was repealed while the plaintiff’s
appeal was pending). If the district court determines that
the plaintiffs acted in good faith and that the Mexican court
decisions are entitled to recognition here, those decisions
establish that Mexico is not an available forum. If it is not
available, the Mañez-Reyes family should be able to
8 No. 04-1827
continue to pursue their claim against the defendants in the
United States. If, however, the court concludes that the
Morelos decisions are not entitled to recognition or that the
plaintiffs did not act in good faith and manipulated the
dismissal of their case in Mexico, the district court should
regard itself as free once again to dismiss this complaint.
Although it is possible that as a matter of Mexican law, a
court in Veracruz might honor the Morelos decisions no
matter what, for purposes of U.S. law a forum may not be-
come unavailable by way of fraud.
III
For these reasons, we VACATE the district court’s decision
and REMAND for further proceedings consistent with this
opinion.
No. 04-1827 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-05