IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2009
No. 09-50109
Charles R. Fulbruge III
Clerk
In re: FORD MOTOR CO., a Delaware Corporation;
BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE LLC,
the Successor to Bridgestone/Firestone, Inc.,
Petitioners.
Petition for Writ of Mandamus to
the United States District Court
for the Western District of Texas
No. 2:03-CV-100
ON PETITION FOR REHEARING EN BANC
(Opinion 580 F.3d 308 (Aug. 21, 2009))
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a petition for panel rehear-
ing, the petition for panel rehearing is DENIED. No member of the panel or
judge in regular active service having requested that the court be polled on re-
hearing en banc (F ED. R. A PP. P. 35 and 5 TH C IR. R. 35), the petition for rehear-
ing en banc is DENIED.
No. 09-50109
The following opinion is substituted for the original opinion for the purpose
of correcting minor factual errors and providing additional explanation. No
further request for rehearing or rehearing en banc will be permitted.
**********
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ford Motor Company (“Ford”) and Bridgestone/Firestone North American
Tire LLC (“Firestone”) 1 requested that the district court reconsider a pretrial for-
um non conveniens (“FNC”) motion that had been denied by a multidistrict liti-
gation (“MDL”) court. The district court declined the request, so petitioners seek
a writ of mandamus. We grant the writ.
I.
Plaintiffs are several Mexican citizens who were injured in Mexico in vehi-
cle accidents involving Ford sport utility vehicles and Firestone tires. They sued
Petitioners in Val Verde County, Texas, state court, and petitioners removed to
federal court in the Western District of Texas (sometimes referred to as the
“Western District”). The case was transferred, under 28 U.S.C. § 1407, to the
MDL court in the Southern District of Indiana, which had been established to
deal with the more than 700 similar cases against Ford and Firestone.2 See In
re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 305 F. Supp. 2d 927, 929
(S.D. Ind. 2004). At about the same time that plaintiffs filed this suit, another
1
We refer to Ford and Firestone collectively as “petitioners.”
2
Unlike the instant case, the vast majority of these MDL cases involved plaintiffs domi-
ciled in the United States.
2
No. 09-50109
case, Manez, involving similar circumstances, was also transferred to the MDL
court.
Before considering the plaintiff’s case, the MDL court examined the merits
of a FNC motion in Manez. Petitioners (who were also the defendants in Manez)
filed the FNC motion, claiming that Mexico was an availableSSand more appro-
priateSSforum. The defendants “stipulated that they [would] submit to personal
jurisdiction in Mexico.” Id. at 932. The court stated, relying on Fifth Circuit
precedent, that “[n]umerous 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.” Id. (citing Gonzalez v. Chrysler Corp.,
301 F.3d 377, 379-83 (5th Cir. 2002)). The MDL court granted the FNC motion
in Manez. Id. at 939.
The Manez plaintiffs appealed to the Seventh Circuit Court of Appeals, as
is proper under MDL procedure. See In re Bridgestone/Firestone, Inc., 420 F.3d
702 (7th Cir. 2005). On appeal, the court noted that the district court’s FNC de-
cision was “quite reasonable” and said that “this case looks like an easy candi-
date for a straightforward affirmance.” Id. at 704-05. The court then noted,
however, that there was a “wrinkle” that prevented the easy affirmance: two ex
parte Mexican court decisions that stated the case could not be tried in Mexican
courts. Id. at 705. The court noted that it had “substantial misgivings about the
plaintiffs’ actions” in submitting the orders but held that it did “not have an
adequate record to assess whether the plaintiffs’ actions were taken in good
faith.” Id. at 706. It remanded for the MDL district court “thoroughly [to] ex-
plore the circumstances” surrounding the Mexican decisions. Id.
On remand, the district court “conducted an evidentiary hearing to thor-
oughly explore the circumstances surrounding the [Mexican] courts’ decisions.”
In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 470 F. Supp. 2d 917,
919 (S.D. Ind. 2006). The court concluded that in seeking the Mexican dismissal
3
No. 09-50109
order, “the attorneys for Plaintiffs acted with the clear purpose of having the
case dismissed[] and, in seeking that result, manipulated the process to insure
that the dismissal would be based on a particular reason that was calculated to
improve the chances of the dismissal being sustained on appeal.” Id. at 920.
Specifically, it noted e-mails between attorneys discussing how one Mexican
judge “confirmed that she will throw out the suit according to what we planned.”
Id. at 925. The MDL court dismissed the case on FNC grounds, and the decision
was not appealed. The MDL court later sanctioned the Manez plaintiffs’ expert
witness, Dr. Leonel Pereznieto, noting that he was “the apparent mastermind
behind these frauds on the U.S. and Mexican courts.” In re Bridgestone/Fire-
stone, Inc., Tires Prods. Liab. Litig., 470 F. Supp. 2d 931, 933 (S.D. Ind. 2006).3
After that dismissal, the MDL court asked all parties to show cause why
their cases should not be dismissed. Plaintiffs did not initially respond, but an-
other plaintiff did submit a reply. Petitioners responded to that reply and speci-
fically asked that plaintiffs’ case be dismissed.
Plaintiffs then filed a response, insisting that Mexico was not an available
forum. Filed with the response were several dismissal orders, obtained ex parte
from Mexican courts, that allegedly claimed that foreign defendants cannot be
sued in Mexico for tort cases, even if they submit to jurisdiction there.4
The MDL court agreed with plaintiffs that Mexico is not an available for-
um; it denied petitioners’ motion to dismiss. The court then ordered a condition-
al return of the case to the Western District.
Petitioners filed a motion for reconsideration, an alternative motion to
3
The Seventh Circuit overturned the sanctions decision on the ground that Pereznieto
had not received “constitutionally adequate notice and an opportunity to be heard in the pro-
ceeding that led to the $100,000 fine.” Manez v. Bridgestone/Firestone N. Am. Tire, LLC, 533
F.3d 578, 593-94 (7th Cir. 2008). The matter is currently pending in the MDL court on re-
mand.
4
Petitioners have agreed to submit themselves to the jurisdiction of Mexican courts.
4
No. 09-50109
certify the issue for interlocutory appeal to the Seventh Circuit, and an objection
to the conditional remand order. Plaintiffs opposed all the motions; the MDL
court did not rule on any of them before the MDL panel returned the case to the
Western District. Six weeks after that occurred, the MDL court dismissed all of
the motions as moot.
After the case had been returned to the Western District, Petitioners again
filed a motion for reconsideration of the MDL court’s FNC decision. They sub-
mitted new evidence regarding the ex parte dismissal orders, allegedly showing
that they had been fraudulently obtained. Judge Hudspeth of the Western Dis-
trict denied the motion, opining that “[w]hen a civil action has been through the
MDL process and has been remanded . . . the pretrial rulings made by the trans-
feree court should be reconsidered, if at all, under only the most extraordinary
circumstances. To do so would go a long way toward defeating the entire purpos-
es of the MDL process.” (citing Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202
n.5 (7th Cir. 1996); In re Food Line, Inc., 73 F.3d 528, 531-32 (4th Cir. 1996)).
Judge Hudspeth expressed his view that such extraordinary circumstances are
not present in this case and that he believed that the petitioners did not actually
want to have their case tried in Mexico but only wanted to delay the trial. Also,
he denied an interlocutory appeal to this court because, in his opinion, this was
a delay tactic. Petitioners ask us to grant mandamus on the FNC issue.
II.
The issueSSwhether we can grant mandamus on a district court’s refusal
to reconsider a pretrial MDL decisionSSis one of first impression in this circuit.
We examine the question in two parts. First, we see whether the district court
improperly denied the motion for reconsideration. If we decide that the district
court did err, we next look to see whether we can properly grant mandamus in
the procedural posture of Judge Hudspeth’s denial of reconsideration.
5
No. 09-50109
A.
We begin by addressing how MDL transferor courts review the pretrial de-
terminations of transferee MDL courts.5 We have not established a standard for
review of this question, though we note that authorities are unanimous that
some deference must be given to the transferee court’s decisions.
[I]t would be improper to permit a transferor judge to overturn or-
ders of a transferee judge even though error in the latter might re-
sult in reversal of the final judgment of the transferor court. If
transferor judges were permitted to upset rulings of transferee judg-
es, the result would be an undermining of the purpose and useful-
ness of transfer under [28 U.S.C. §] 1407 for coordinated or consoli-
dated pretrial proceedings because those proceedings would then
lack the finality (at the trial court level) requisite to the convenience
of witnesses and parties and to efficient conduct of actions.[6 ]
That view is nothing short of a bright-line rule that a transferor court cannot
overrule a transferee court. Several courts have cited this maxim.7
Other commentators and courts, however, have rejected a bright-line ap-
proach and instead have advocated only substantial deference to the transferee
court. “The general rules are not surprising: deference to the decisions reached
by the prior judge and jurisdiction or authority to modify those rulings. This is
particularly true for rulings which the transferee court could have itself modi-
fied.” M ULTIDISTRICT L ITIGATION M ANUAL § 10:17. “It would vitiate much of the
purpose of consolidating litigation if, after remand, parties could simply re-visit
the transferee court’s pre-trial rulings, and force the common defendant to deal
5
A transferor court refers to the court in which the suit was begun (here, the Western
District of Texas); the transferee court refers to the court to which the case was transferred
for MDL pretrial rulings (the Southern District of Indiana).
6
Stanley A. Weigle, The Judicial Panel on Multidistrict Litigation, Transferor Courts
and Transferee Courts, 78 F.R.D. 575, 577 (1978).
7
See, e.g., In re Food Lion, Inc. Fair Labor Standards Act Effective Scheduling Litig.,
73 F.3d 528, 531 (4th Cir. 1996).
6
No. 09-50109
piecemeal with once-collective matters.” Winkler v. Eli Lilly & Co., 101 F.3d
1196, 1202 n.5 (7th Cir. 1996).
Instead of promoting general deference, others have stated that the “law
of the case” should apply where a transferor court is deciding whether to over-
turn the decision of a transferee court. “Although the transferor judge has the
power to vacate or modify rulings made by the transferee judge, subject to comi-
ty and ‘law of the case’ considerations, doing so in the absence of a significant
change of circumstances would frustrate the purposes of centralized pretrial
proceedings.” M ANUAL FOR C OMPLEX L ITIGATION § 20.133. Some courts have
agreed with this viewpoint.8
The better view is the latterSSthat transferor courts should use the law of
the case doctrine to determine whether to revisit a transferee court’s decision.
Moreover, a bright-line rule cannot be reconciled with our precedent in similar
situations: “The revisitation by the court of [an] earlier order . . . was not error
because . . . a court may correct its own errors. The fact that [the judge] was not
correcting his own error, but that of another judge who initially had been in
charge of the case, is no moment.” Fernandez-Montes v. Allied Pilots Ass’n, 987
F.2d 278, 284 (5th Cir. 1993) (citation omitted).
We have also used the law of the case doctrine when examining a situation
“in which one judge has rendered an order or judgment and the case is then
transferred to another judge.” United States v. O’Keffe, 128 F.3d 885, 892 (citing
Albshire v. Seacost Prods., 668 F.2d 832, 838 (5th Cir. 1982)). “Under the law
of the case doctrine and general principles of comity, a successor judge has the
same discretion to reconsider an order as would the first judge, but should not
8
See, e.g., In re Multi Piece Rim Prods. Liab. Litig., 653 F.2d 671, 678 (D.C. Cir. 1981)
(“The doctrine of the law of the case has its application in multidistrict litigation as well as in
traditional litigation.” (citing ABC Great States, Inc. v. Globe Ticket Co., 316 F. Supp. 449 (E.D.
Pa. 1970)).
7
No. 09-50109
overrule the earlier judge’s order or judgment merely because the later judge
might have decided matters differently.” Id. (citing Loumar, Inc. v. Smith, 698
F.2d 759, 762-63 (5th Cir. 1983)).
In reviewing transferee court decisions under the law of the case doctrine,
transferor courts should rarely reverse, because any widespread overturning of
transferee court decisions would frustrate the principle aims of the MDL process
and lessen the system’s effectiveness. The law of the case doctrine “requires at-
tention to the special authority granted to the multidistrict transferee judge” and
ensures that transferor courts respect the transferee court’s decisions. Multi-
Piece Rim, 653 F.3d at 678. That doctrine also has the virtue of allowing trans-
feror courts to correct serious errors of the transferee court.
B.
The law of the case doctrine requires that courts not revisit the determina-
tions of an earlier court unless “(i) the evidence on a subsequent trial was sub-
stantially different, (ii) controlling authority has since made a contrary decision
of the law applicable to such issues, or (iii) the decision was clearly erroneous
and would work . . . manifest injustice.” Propes v. Quarterman, 573 F.3d 225,
228 (5th Cir. 2009) (citing Goodwin v. Johnson, 224 F.3d 450, 457-58 (5th Cir.
2000)) (ellipses in original). Since the MDL court’s ruling, no new controlling au-
thority has overruled the decision. Though petitioners have presented new evi-
dence that calls into question the plaintiffs’ ex parte orders from Mexico,9 we
need not decide whether that evidence is enough to invoke the law of the case
9
Plaintiffs claim that this evidence could not be considered by the transferor court, so
we therefore cannot consider it. This is incorrect. Under the law of the case doctrine, one of
the explicit reasons for overturning an earlier decision is the submission of new evidence; this
would be impossible under plaintiffs’ theory. If new evidence has been acquired since the
transferee court’s decision, it may be submitted to the transferor court.
8
No. 09-50109
doctrine.10
Instead, we conclude that the transferee court’s FNC decision is so clearly
erroneous that it would work manifest injustice in this case. Because the trans-
feror court should have recognized its serious error, its decision not to vacate its
decision regarding FNC was also clearly erroneous.
We have held in numerous cases that Mexico is an available forum for tort
suits against a defendant that is willing to submit to jurisdiction there. In Vas-
quez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003), we exam-
ined a case in which the defendant had stipulated to the jurisdiction of Mexican
courts.11 The district court found that the “stipulation . . . made Mexico an avail-
able forum.” Id. We agreed with that conclusion, noting that there was no dis-
pute regarding whether Mexico was available as long as the defendant submit-
ted to jurisdiction. Id.
Again, in Gonzalez v. Chrysler Corp., 301 F.3d 377, 380 n.3 (5th Cir. 2002),
we held that “[i]t is undisputed that Mexico is an amenable forum because the
defendants have agreed to submit to the jurisdiction of the Mexican courts.”
Both Vasquez and Gonzales involved torts against foreign defendantsSSthe same
kind of suit that the instant plaintiffs allege is not available in Mexico even
where a defendant submits to jurisdiction.
Finally, in DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 804 (5th
Cir. 2007), we agreed with the district court’s finding that “Mexico is an ade-
quate and available forum.” Other district courts have also concluded that Mexi-
10
Nothing in this opinion should prevent the transferor court, on any later reconsidera-
tion of the MDL decision, from examining petitioners’ evidence that rather convincingly shows
the ex parte orders may be fraudulent.
11
Vasquez is importantly similar to the instant case in that it involved personal injuries
resulting from a vehicle crash involving Firestone tires in Mexico.
9
No. 09-50109
co is an available forum in such cases.12 Similarly, a “defendant’s submission to
the jurisdiction of an alternative forum renders that forum available for the pur-
poses of [FNC] analysis.” Veba-Chemie A.G. v. M/V GETAFIX, 711 F.2d 1243,
1245 & n.3 (5th Cir. 1983).13
These many decisions create a nearly airtight presumption that Mexico is
an available forum. We have held that if a defendant submits to jurisdiction,
there is a presumption of forum availability; petitioners have done so here. We
have held in tort cases (even one case involving nearly identical facts) that Mexi-
co is an available forum for tort suits against foreign defendants. “Our rule of
orderliness ‘forbids one of our panels from overruling a prior panel.’” 14 Thus,
unless this court en banc or the Supreme Court decides otherwise, petitioners’
willingness to submit to jurisdiction in Mexico makes it an available forum for
FNC purposes, based on the binding precedent of this court.
District courts do not have to start from scratch each time they consider
a forum’s availability; if we have found a forum to be available in earlier cases,
district courts can rely on our precedent in similar cases to hold that it is still
available. Unless plaintiffs can show evidence distinguishing this case from our
precedent, an order from a Mexican court dismissing this exact case for lack of
jurisdiction, or reliable evidence of some subsequent change in Mexican law that
calls our earlier determinations into serious question, plaintiffs cannot prevail
in their FNC defense. Because no such evidence was presented, the transferee
12
See de Aguilar v. Boeing Co., 806 F. Supp. 139 (E.D. Tex. 1992); see also Zermeno v.
McDonnell Douglas Corp., 246 F. Supp. 2d 646, 658-59 (S.D. Tex. 2003).
13
Even the plaintiffs seem to concede that Veba-Chemie is harmful to their position.
In a supplemental letter brief, plaintiffs interpret Veba-Chemie “to mean that where it is un-
known or cannot be easily determined whether a foreign jurisdiction is or is not an available
forum, it can be presumed that it would be available when there is a consent to jurisdiction.”
14
Pretus v. Diamond Offshore Drilling, Inc., 571 F.3d 478, 487 (5th Cir. 2009) (Smith,
J., dissenting) (quoting Teague v. City of Flower Mound, Tex., 179 F.3d 377, 383 (5th Cir.
1999)).
10
No. 09-50109
and transferor courts clearly erred in refusing to grant the FNC dismissal.15
Along with failing to consider our earlier binding opinions, the MDL court
erred when it relied solely on the plaintiffs’ ex parte orders from Mexican courts
without any expert testimony. At oral argument, plaintiffs’ counsel conceded
that they had submitted only two experts to the MDL court: Leonel Pereznieto
and Mexican Judge Garcia Estrada. Counsel also admitted that the MDL court
struck both Pereznieto’s and Estrada’s testimony. Thus, plaintiffs had no ex-
perts on whom to rely. Instead, they submitted only ex parte orders allegedly
showing Mexico is not an available forum. The MDL court relied on those orders
in denying petitioners’ FNC motion.
The MDL court erred twice in using the ex parte orders to reach its deci-
sion. First, the court should have required expert testimony to analyze the ex
parte orders and other important materials, such as Mexican code provisions and
Mexican Supreme Court or appellate decisions.16 Second, relying solely on these
ex parte orders was error. We recognize that in Mexican courts, jurisdictional
15
Though the MDL court was not sitting in the Fifth Circuit, plaintiffs’ cases all orig-
inated in the district courts of this circuit. Merely moving this case from the Western District
of Texas to the Southern District of Indiana does not allow plaintiffs to circumvent our earlier
binding precedent that Mexico is an available forum. Such a perverse result would allow a
case to proceed improperly just because it happened to be before an MDL panel.
The result that occurred here undermines the goals of § 1407(a), which requires MDL
cases to be transferred to promote “the just and efficient conduct” of proceedings. 28 U.S.C.
§ 1407(a) (emphasis added). It is not “just” to require petitioners to defend their suit in the
Western District merely because plaintiffs were able to transfer to an MDL panel in another
circuit. Although there is disagreement among courts on this point, the better view is that,
because forum-availability law is “geographically non-uniform, a transferee court should use
the rule of the transferor forum in order to implement the central conclusion of [Van Dusen
v. Barrack, 376 U.S. 612 (1964)] and [Ferens v. John Deere Co., 494 U.S. 516 (1990)]: that a
transfer . . . accomplishes “but a change of courtrooms.” Eckstein v. Balcor Film Investors,
8 F.3d 1121, 1127 (7th Cir. 1993). For there to be “but a change of courtrooms” here, the MDL
court should have applied Vasquez and Gonzales to find that Mexico is an available forum.
16
Even with this expert testimony, the experts would have to present strong evidence
that their case is distinguishable from our earlier precedent in order to overcome the presump-
tion that Mexico is an available forum.
11
No. 09-50109
decisions can be given ex parte without necessarily violating any rules. Plain-
tiffs, however, have not submitted any evidence to show that these orders must
be issued without the opposing counsel’s being present. Especially in a case such
as thisSSwhere other similarly situated plaintiffs have acted fraudulentlySSthe
MDL court should have asked for orders that were issued in courts in which both
parties were present, to ensure there was no fraud. By not having expert testi-
mony, and by relying on ex parte orders obtained without the presence of oppos-
ing counsel, the MDL court again erred.
Finally, but importantly, we note that petitioners were and are willing to
submit to a return jurisdiction clause. As we noted for the plaintiff in Vasquez,
“[t]here is no guarantee that [Mexico] will remain an available forum or that de-
fendants will submit to its jurisdiction. A return jurisdiction clause remedies
this concern by permitting parties to return to the dismissing court should the
lawsuit become impossible in the foreign forum.” Vasquez, 325 F.3d at 675. Pe-
titioners stated that they will accept a return jurisdiction clause, and this weighs
heavily in favor of finding that the MDL court erred.
The evidence put before the MDL court was rather equivocal on whether
Mexico was an available forum; both sides submitted experts,17 code provisions,
court decisions, and orders showing Mexico to be either an available or unavail-
able forum. With such uncertainty, a return-jurisdiction clause must weigh
heavily in favor of granting the FNC motion. That clause will allow both sidesSS
rather than just plaintiffsSSto go before a judge in Mexico and find out whether
this specific suit can be tried there. If Mexico will not hear the case, plaintiffs
can re-file in Texas and proceed to trial. In the face of evidence and caselaw
showing Mexico to be an available forum, it was clear error for the MDL court
to reject this option.
17
Plaintiffs’ experts’ testimony was struck from the record.
12
No. 09-50109
For all of these reasons, under the law of the case doctrine, the transferor
court should have reconsidered the MDL court’s FNC decision for manifest injus-
tice. In light of the binding caselaw, the lack of expert evidence, and the willing-
ness of the petitioners to submit to a return jurisdiction clause, Mexico was the
proper forum. Having found that there was manifest injustice and that the
transferor court clearly erred in not reconsidering the MDL court’s FNC deci-
sion, we now must see whether this case meets our criteria for granting manda-
mus relief.
III.
Mandamus is an appropriate remedy for “exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.”
Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004) (citations and internal quota-
tion marks omitted); see In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th
Cir. 2008) (en banc), cert. denied, 129 S. Ct. 1336 (2009). Plainly, a transferor
court’s refusal to reexamine a transferee court’s FNC decision can be one of the
“exceptional circumstances,” so long as the refusal meets our stringent criteria
for granting mandamus. “[C]ourts reviewing petitions for mandamus ‘must be
careful lest they suffer themselves to be misled by labels such as ‘abuse of discre-
tion’ and ‘want of power’ into interlocutory review of nonappealable orders on the
mere ground that they may be erroneous.’” Volkswagen, 545 F.3d at 309 (citing
Will v. United States, 389 U.S. 90, 98 n.6 (1967)).
In Volkswagen, we noted that an abuse of discretion occurs where a court
“(1) relies on clearly erroneous factual findings; (2) relies on erroneous conclu-
sions of law; or (3) misapplies the law to the facts.” Id. at 310 (citation omitted).
“On mandamus review, we review for these types of errors, but we only will
grant mandamus relief when such errors produce a patently erroneous result.”
Id. Showing that there was a clear abuse of discretion, however, is not enough:
13
No. 09-50109
The Supreme Court has established three requirements that must
be met before a writ may issue: (1) the party seeking issuance of the
writ must have no other adequate means to attain the relief he de-
siresSSa condition designed to ensure that the writ will not be used
as a substitute for the regular appeals process; (2) the petitioner
must satisfy the burden of showing that [his] right to issuance of the
writ is clear and indisputable; and (3) even if the first two prerequi-
sites have been met, the issuing court, in the exercise of its discre-
tion, must be satisfied that the writ is appropriate under the cir-
cumstances.
Id. at 311. (citation, internal quotation marks and brackets omitted). “These
hurdles, however demanding, are not insuperable.” Id. (citation omitted).
For the reasons we have explained, there was a clear abuse of discretion,
because the transferor court refused to alter a transferee court’s decision that re-
lied on an erroneous conclusion of law. Petitioners submitted to jurisdiction in
Mexico, and our caselaw plainly holds that Mexico is an available forum. It was
patently erroneous for the MDL court to ignore this binding precedent and
equally erroneous for the transferor court to accept that decision.
We additionally find comfort in granting mandamus in light of the fact
that this is an extraordinary case. Snippets of the record that counsel that re-
sult include, in no particular order of significance, the fact that plaintiffs’ expert
on Mexican law was the same person who had been employed by the Manez
plaintiffs and who had been sanctioned by the MDL court for bad faith and
fraudulent conduct. Moreover, to show that Mexico was unavailable, plaintiffs
submitted ex parte dismissal orders that were suspiciously similar to orders prof-
fered in Manez, in which the MDL court had declared that those plaintiffs had
deliberately and fraudulently obtained the dismissals for the express purpose of
defeating an FNC motion. Then, on the same day it denied the FNC motion, the
MDL court suggested to the JPML that the cases be remanded immediately to
the district courts a quo.
14
No. 09-50109
As a result of that remand, the MDL court never ruled on petitioners’ mo-
tion to reconsider, but just dismissed the motion as moot long after the matter
had been remanded to the transferor court and after the MDL court no longer
had jurisdiction.18 The transferor court never considered the merits of the
motion to reconsider, but only denied that motion on the mistaken belief that the
court lacked discretion to reach the merits.19
Petitioners also lack any other adequate means to attain relief. They at-
tempted to have the MDL court’s decision certified for appeal to the Seventh Cir-
cuit and asked for reconsideration by both the MDL court and the transferor
court. All of these attempts were rejected.20
We also held en banc in Volkswagen that, in these FNC cases, mandamus
18
Because the motion to reconsider involved only the handful of plaintiffs in the instant
case, a ruling by the MDL court would not have had broad implications for the caselaw on
MDL proceedings. That serves as another reason why that court should have ruled on the mo-
tion to reconsider.
19
Reconsideration by the transferor court would have posed no threat to the MDL pro-
cess and, in fact, would have fostered the salutary goal of consistency in that process. The in-
consistencies between the treatment of the Manez and the instant plaintiffs are striking.
First, the MDL court dismissed Manez on FNC grounds by concluding that Mexico is
an available forum under Fifth Circuit precedent. Second, after the Seventh Circuit had re-
manded Manez, the MDL court ruled that those plaintiffs had acted in bad faith in securing
fraudulent dismissals in Mexico to strengthen their position in the MDL proceedings; the MDL
court thus dismissed again, on FNC grounds, stating that Mexico was available.
Third, the MDL court departed from its earlier ruling and denied the present peti-
tioners’ FNC motion on the ground that they had not proven their contention that Mexico is
available. Fourth, in a bizarre reversal, the court granted an FNC motion in the almost-identi-
cal case of Cantu, concluding that, in reliance on Fifth Circuit caselaw, Mexico is an available
alternative forum.
20
We note our distaste at plaintiffs’ argument that this case should not be considered
by this court because it should have been appealed to the Seventh Circuit. Petitioners moved
for leave to take an interlocutory appeal to the Seventh Circuit, but plaintiffs opposed the mo-
tion. Plaintiffs’ wish was granted, and the Seventh Circuit declined to hear the case. It is dis-
ingenuous at best for them now to claim that this court’s jurisdiction was improper, when they
opposed all other avenues for reconsideration of the decision.
15
No. 09-50109
is appropriate on this prong because, if the issue is argued only on any eventual
direct appeal, there is no way to show that the outcome of the case would have
been different, and any inconvenience to the parties “will already have been done
by the time the case is tried and appealed.” Id. at 318-19. “[T]he writ is not here
used as a substitute for an appeal, as an appeal will provide no remedy for a pa-
tently erroneous failure to transfer venue.” Id. at 319. We were straightforward
in Volkswagen that these FNC cases are in the “no other means to attain relief”
category. Id. at 318.
Additionally, the petitioners have a clear and indisputable right to the
writ. That follows from our finding of a clear abuse of discretion: “If the district
court clearly abused its discretion . . . in denying [the] motion, then [the petition-
ers’] right to issuance of the writ is necessarily clear and indisputable.” Id. at
311. There was a clear abuse of discretion, so petitioners are entitled to a writ
of mandamus.
Finally, we must be satisfied that the writ is appropriate in this circum-
stance. A writ of mandamus is “supervisory in nature and [is] particularly ap-
propriate when the issues also have an importance beyond the immediate case.”
Id. at 319 (citation omitted). There are at least two other similar cases pending
in the MDL court that were initially filed in Texas. In addition, other suits may
be filed in our district courts involving the question whether Mexico is an avail-
able forum in our circumstances. This issue is not specific to this case but is rel-
evant for a variety of similar cases that have arisen or may arise in the district
courts of this circuit. Recognizing this, a writ of mandamus is called for here.
Considering the return-jurisdiction clause and our the binding precedent, it is
plain that this trial should not take place in American courts unless a Mexican
forum is unavailable.
For all of the above reasons, the district court erred in not overruling the
MDL court’s FNC decision, and that error is serious enough to require manda-
16
No. 09-50109
mus as the appropriate relief. We direct the district court to render a judgment
of dismissal without prejudice, because Mexico is an available and appropriate
forum. Plaintiffs can re-file this suit and proceed to trial in the Western District
of Texas on a sufficient showing that the Mexican courts are unavailable for this
litigation despite petitioners’ submission to jurisdiction there. Plaintiffs must
litigate in good faith in Mexican courts, and evidence showing otherwise may
justify sanctions against plaintiffs and their counsel.
The petition for writ of mandamus is GRANTED.
17