Case: 14-13784   Date Filed: 04/28/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________

                            No. 14-13784
                        Non-Argument Calendar
                      ________________________

                  D. C. Docket No. 1:11-cv-23898-PAS

GUADALUPE GALLEGO OCHOA,
GUADALUPE ARANZAZU GAYOSSO GALLEGLO, an alien,

                                                          Plaintiffs-Appellants,

                                  versus

EMPRESAS ICA, S.A.B. DE CV,
an alien corporation,
PEDRO TOPETE VARGA,
an alien,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________
                             (April 28, 2015)


Before TJOFLAT, JULIE CARNES, and ANDERSON, Circuit Judges.
              Case: 14-13784     Date Filed: 04/28/2015    Page: 2 of 5


PER CURIAM:

      Plaintiffs Guadalupe Gallego Ochoa (“Gallego”) and Guadalupe Aranzazu

Gayosso Gallego (“Gayosso”) appeal dismissal of their case for forum non

conveniens. Gallego and Gayosso allege that a Mexican corporation, Empresas

ICA, S.A.B. DE CV (“ICA”), and a Mexican national, Pedro Topete Varga

(“Topete”), defrauded them through a carousel scheme related to a Mexican

highway project. After careful review of the briefs and the record, we affirm.

      We write primarily for the parties, so we assume they are familiar with the

intricacies of the case. In summary, the complaint alleges that Gallego, Gayosso,

and Topete were all business partners in Viabilis Infraestructura, S.A. de C.V.

(“Viabilis”). The Mexican government granted the rights to a highway project

(“Project”) to Viabilis, and Gallego secured financing for the pre-project studies.

Topete and Gallego granted ICA an equity participation interest in the Project in

exchange for $20 Million. Gallego obtained a loan from a Spanish bank that ICA

executives paid off without his knowledge. Topete and others then used fraudulent

documents to obtain control over all equity shares of the Project. With the Project

under their control, Topete and ICA used false accounting to divert funds from the

Project and defraud the Mexican government.

      Plaintiffs argue that the district court erred both by dismissing the case for

forum non conveniens and by denying their motion for reconsideration on the


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matter. Specifically, the district court excluded evidence pertinent to the Plaintiffs’

ability to safely litigate the dispute in Mexico and discredited safety concerns in its

analysis. We review a district court’s dismissal for forum non conveniens for a

“clear abuse of discretion.” Membreno v. Costa Crociere S.p.A., 

,

935-36 (11th Cir. 2005). The Court reviews a district court’s denial of a motion

for reconsideration under Federal Rule of Civil Procedure 59 for abuse of

discretion. Lockard v. Equifax, Inc., 

, 1267 (11th Cir. 1998).

      To sustain dismissal pursuant to the forum non conveniens doctrine, a

defendant must establish that “(1) an adequate alternative forum is available, (2)

the public and private factors weigh in favor of dismissal, and (3) the plaintiff can

reinstate his suit in the alternative forum without undue inconvenience or

prejudice.” Tazoe v. Airbus S.A.S., 

, 1330 (11th Cir. 2011). A

defendant invoking forum non conveniens bears a heavy burden in opposing a

plaintiff’s choice of forum. See SME Racks, Inc. v. Sistemas Mecanicos

Electronica, S.A., 

, 1101 (11th Cir. 2004) (stating that the balancing

of factors must strongly favor a defendant).

      Without rehashing the entire dismissal order, we note that the district court

thoroughly weighed the facts in analyzing the three above requirements while

showing sensitivity to the strong preference in favor of the Plaintiffs’ choice of

forum. The district court also carefully considered the Plaintiffs’ fear of litigating


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in Mexico, and when new evidence related thereto was proffered on motion to

reconsider, the district court granted leave for Plaintiffs to depose Ms. Monserrat.

We cannot conclude that the district court abused its discretion in this regard.

Given the nature of the underlying dispute (including allegations of fraud against

the Mexican government), the location of witnesses and evidence, the availability

of Mexican courts, and the Defendants’ assent to jurisdiction in Mexico, 1 we

cannot say that the district court abused its discretion by dismissing the case for

forum non conveniens.

       The decision whether to reconsider an order pursuant to Federal Rule of

Civil Procedure 59(e) is “committed to the sound discretion of the district judge.”

Mincey v. Head, 

, 1137 (11th Cir. 2000). In analyzing the motion

for reconsideration, the district court provided additional justification for its

decision to dismiss for forum non conveniens. Contrary to the Plaintiffs’

contention, the district court did not wrongfully exclude evidence of danger to the

Plaintiffs in Mexico; rather, the district court concluded that some of the

information presented for reconsideration could have been presented in opposition

to the initial motion to dismiss. And, as noted above, the district court even

permitted limited discovery with respect to the assault on Ms. Monserrat.

Furthermore, the fact that the district court discussed all of the Plaintiffs’ purported

1
        The district court conditioned the dismissal upon the Plaintiffs being able to reinstate this
action in Mexico. If Plaintiffs are unable to do so, the district court will reactivate the action.
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new evidence demonstrates a reasoned decision to uphold its previous ruling. The

district court did not abuse its discretion in denying the motion for reconsideration.

      AFFIRMED.




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