IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-5099
_____________________
ALMA TORREBLANCA DE AGUILAR, ET AL.,
Plaintiffs-Appellants,
versus
THE BOEING COMPANY, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
_________________________________________________________________
(December 22, 1993)
Before SNEED,* REYNALDO G. GARZA, and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The plaintiffs in this case are doggedly determined to find
some court in the United States--any court--in which to try their
foreign-based claims. Once again they fail. This suit is but the
latest in a succession of wrongful death litigation arising out of
the crash of a Mexicana Airlines plane in Mexico. In the first
action, the plaintiffs filed suit in state court in Bexar County,
Texas; the defendants removed to federal district court for the
Western District of Texas; and the district court dismissed the
*
Senior Circuit Judge of the Ninth Circuit, sitting by
designation.
action on federal forum non conveniens grounds stating that Mexico
was the appropriate forum. Rodriguez Diaz v. Mexicana De Avion,
S.A., No. SA-86-CA-1065, 1987 U.S. Dist. LEXIS 13399 (W.D. Tex.
1987), aff'd mem., 843 F.2d 498 (5th Cir.), cert. denied, 488 U.S.
826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988). In the second action,
the parties repeated the same pattern in Illinois resulting in
dismissal on federal forum non conveniens law. In the most recent
action before the instant case,1 the plaintiffs filed suit in
Washington state court, which dismissed the action on state forum
non conveniens grounds. Wolf v. Boeing Co., 810 P.2d 943 (Wash.
Ct. App.), review denied, 818 P.2d 1098 (1991).2 After the Supreme
Court of Texas ruled that the doctrine of forum non conveniens was
no longer recognized under Texas law for wrongful death actions,
Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex. 1990), cert.
denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991), the
plaintiffs filed this suit in state court in Jefferson County,
Texas, without pleading a specific amount of damages. After the
1
The relatives and personal representatives of the estates
of those who perished in the Mexicana Airlines plane crash also
filed suit in California state court against Boeing, Mexicana,
and others while the Illinois action was pending. After the
defendants removed to federal court in California, the plaintiffs
voluntarily abandoned their action against Boeing and the rest of
the defendants, except Mexicana. The Ninth Circuit eventually
held that Mexicana, as a foreign sovereign, was not subject to
suit in the United States. Compania Mexicana de Aviacion, S.A.
v. United States Dist. Court, 859 F.2d 1354 (9th Cir. 1988).
2
Claims are currently pending against Mexicana Airlines in
Civil District Court in Mexico by survivors of the victims of the
plane crash.
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defendants removed to federal district court, the plaintiffs
argued, inter alia, that: (1) the district court should remand to
Texas court because the amount in controversy per decedent was less
than the minimum required for diversity jurisdiction; or
alternatively, (2) the district court should apply Texas law
instead of federal law in resolving the forum non conveniens issue.
The district court denied the motion to remand for lack of subject
matter jurisdiction and dismissed the case based on federal forum
non conveniens law. Finding no error, we affirm.
I
On March 31, 1986, a Mexicana Airlines plane manufactured by
the Boeing Company ("Boeing") crashed in Mexico killing all aboard.
The personal representatives of the estates of those killed and the
relatives of the victims filed this wrongful death action in Texas
court. The plaintiffs did not specify the amount of damages in
their complaint because Texas Rule of Civil Procedure 47(b) forbids
such specificity. Boeing removed the case to federal district
court pursuant to 28 U.S.C. § 1441. The plaintiffs moved to remand
arguing that the amount in controversy did not exceed $50,000 per
plaintiff thus depriving the district court of diversity
jurisdiction. In support of their position, the plaintiffs
submitted the affidavits of their attorneys stating that the
damages did not exceed $49,000 per plaintiff. Boeing and the other
defendants contested the motion by proffering evidence that the
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plaintiffs in the instant case had claimed damages of up to
$5,000,000 each in the previous actions filed in other courts.
The district court denied the motion to remand for lack of
subject matter jurisdiction because the court found the amount in
controversy at the time of removal exceeded $50,000. The court
further held that the attorney affidavits constituted subsequent
events that could not divest the court of jurisdiction. It then
dismissed the case on two alternative grounds: First, the
preclusive effect of the prior adjudications of the plaintiffs'
forum non conveniens issue; and second, even if not bound by the
other judgments, the federal law of forum non conveniens required
dismissal in this case. The plaintiffs appeal this ruling.
II
A
The plaintiffs contend that the district court lacked
diversity jurisdiction and, thus, should have remanded the case to
Texas state court, because the amount in controversy did not exceed
$50,000, as shown by their attorney's affidavits. Plaintiffs rely
on Asociacion Nacional De Pescadores A Pequena Escala O Artesanales
De Colombia (ANPAC) v. Dow Quimica De Columbia S.A., 988 F.2d 559,
566 (5th Cir. 1993), for the proposition that their attorney's
affidavits are dispositive of the jurisdictional question. The
plaintiffs' argument fails because it overestimates the reach of
Dow Quimica.
In Dow Quimica, we stated:
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[A]t least where the following circumstances are present,
[the removing party's burden to establish jurisdiction]
has not been met: (1) the complaint did not specify an
amount of damages, and it was not otherwise facially
apparent that the damages sought or incurred were likely
above $50,000; (2) the defendants offered only a
conclusory statement in their notice of removal that was
not based on direct knowledge about the claims; and (3)
the plaintiffs timely contested removal with a sworn,
unrebutted affidavit indicating that the requisite amount
in controversy was not present.
Dow Quimica, 988 F.2d at 566 (emphasis added).
First, although the complaint in the instant case did not specify
an amount of damages, it is facially apparent that damages sought
by the plaintiffs here exceed $50,000. Unlike Dow Quimica, id. at
565, which involved damages for the skin rashes and lost income of
small-scale Columbian fishermen, the instant case involves, inter
alia, a claim for wrongful death. It is facially apparent that the
claims in this case--claims for wrongful death, terror in
anticipation of death, loss of companionship, and funeral
expenses--did exceed $50,000 at the time of removal. Thus, the
necessary predicate for consideration of the attorney affidavits
under Dow Quimica is absent in this case and, consequently, the
district court properly disregarded the affidavits.
Alterntively, even if the amount in controversy were not
facially apparent, plaintiffs' reliance on Dow Quimica is
nevertheless misplaced because the attorney affidavits that the
plaintiffs offered in support of their motion to remand were
rebutted by the defendant. Clearly, the affidavit of a lawyer
without personal knowledge of the extent of each of the plaintiffs'
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claims sheds little, if any, light on the actual amount in
controversy.3 In Dow Quimica, 988 F.2d at 565-66, however, this
court had before it only the unrebutted affidavit of the
plaintiffs' attorneys and the defendant's conclusory statement in
their notice of removal, i.e., a mere scintilla of evidence on each
side of the amount in controversy issue. Left with nothing but
minimal offsetting evidence, the Dow Quimica Court, id. at 566,
held that the removing parties, the defendants, had not met their
burden to establish that the amount in controversy exceeded $50,000
and remanded to state court. In contrast, the defendants in the
instant case offered testimonial evidence and published precedent
showing that damages in the instant case and in similar cases would
probably exceed $50,000 per plaintiff. Further, the defendants
offered evidence that the plaintiffs in this action claimed damages
of up to $5,000,000 in other courts for the same injuries. The
inconsistency between the plaintiffs' prior claims and their
current claims--at least as represented by the post-removal
attorney affidavits--may indicate that the plaintiffs, rather than
trying to clarify the actual amount in controversy, engaged in
artful post-removal pleading in order to avoid the consequences of
3
Further, St. Paul Mercury Indemnity Co. v. Red Cab Co., 303
U.S. 283, 292-93, 58 S.Ct. 586, 592, 82 L.Ed. 845 (1938) struck
the tactic of using stipulations or affidavits to reduce the
amount of the claims below the jurisdictional requisite after
removal. See Reisman v. New Hampshire Fire Ins. Co., 312 F.2d
17, 19 (5th Cir. 1963) ("The decisions under 28 U.S.C.A. § 1447
make it clear that once jurisdiction has attached, it cannot be
subsequently divested").
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federal forum non conveniens law. Diversity jurisdiction, however,
derives from Article III of the Constitution, is defined by
Congress, and is not subject to delimitation by such imaginative
post-hoc tactics of litigants.
B
Even if our precedent in Dow Quimica does not require our
reversal of the district court, the plaintiffs nevertheless contend
that the district court's denial of their motion to remand must be
reversed because the removing parties have not met their burden of
proving to a legal certainty that the amount in controversy exceeds
$50,000. When the plaintiff's complaint does not allege a specific
amount of damages, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
exceeds $50,000. See Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th
Cir. 1992); Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763
(E.D. Mich 1990). Here, the defendants easily met this burden by
showing that many of the same plaintiffs in this action pled
damages of up to $5,000,000 in other forums for the same injuries.
C
The plaintiffs also contend that the district court erred in
applying federal law to resolve the forum non conveniens issue
instead of Texas law. We have previously held:
[A] federal court sitting in a diversity action is
required to apply the federal law of forum non conveniens
when addressing motions to dismiss a plaintiff's case to
a foreign forum.
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In re Air Crash Near New Orleans, La. on July 9, 1982, 821 F.2d
1147, 1159 (5th Cir. 1987), vacated on other grounds sub nom., Pan
American World Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct.
1928, 104 L.Ed.2d 400, reinstated save as to damages under original
nom., 883 F.2d 17 (5th Cir. 1989).
We recently confirmed this view in Villar v. Crowley Maritime
Corp., 990 F.2d 1489, 1498 (5th Cir. 1993). Accordingly, the
district court did not err in applying the federal law of forum non
conveniens.
D
The plaintiffs proffer several other arguments on appeal; each
is without merit. The plaintiffs argue that the district court
should have remanded to state court once it had decided that it
would decline jurisdiction under forum non conveniens. This
argument is without merit because the power to invoke forum non
conveniens presupposes the existence of federal jurisdiction and
thus does not require remand to an equally inconvenient forum.
Nolan v. Boeing Co., 919 F.2d 1058, 1070 (5th Cir. 1990). Next,
the plaintiffs contend that the district court erred in holding
that issue preclusion required dismissal because the prior courts
did not address whether Texas forum non conveniens law should apply
to the case. This contention fails both because the plaintiffs
have made no showing of "objective facts that materially alter the
considerations underlying the previous resolutions," and because,
in any event, federal forum non conveniens law applies in federal
district court. Id. (quoting Exxon Corp. v. Chick Kam Choo, 817
F.2d 307, 314 (5th Cir. 1987), rev'd on other grounds, 486 U.S.
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140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988)). Finally, the
plaintiffs contend that the district court misapplied the federal
forum non conveniens factors of Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). We hold that the district
court's agreement with the other courts that have ruled that Mexico
is a more convenient forum was not an abuse of discretion. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70
L.Ed.2d 419 (1981).
III
For the foregoing reasons, the district court's judgment
denying the plaintiffs' motion to remand and dismissing the action
is
A F F I R M E D.
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