Case: 08-41059   Document: 00511009113   Page: 1    Date Filed: 01/21/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 January 21, 2010

                                 No. 08-41059                Charles R. Fulbruge III
                                                                     Clerk

MARIA LUISA SANDRIA SAQUI,

                                           Plaintiff-Appellant
v.

PRIDE CENTRAL AMERICA LLC; PRIDE CENTRAL AMERICA LLC
(Mexican Branch); GULF OF MEXICO PERSONNEL SERVICES
S. DE R.L. DE C.V.,

                                           Defendants-Appellees




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        This appeal involves the death of a Mexican citizen, Christian Spinosa
Sandria (“Sandria”), who died while working on board the Pride Mississippi, a
vessel owned by the Appellee, Pride Central America, LLC (“PCA”). Appellant
Maria Luisa Sandria Saqui (“Saqui”), the personal representative of Sandria,
appeals from a district court’s order dismissing her claims against PCA for forum
non conveniens (“FNC”). For the reasons discussed below, we affirm.
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            I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2004, Petroleos de Mexico (“Pemex”), the national oil company of
Mexico, leased the Pride Mississippi from PCA. Pemex’s operations included
drilling a well that is located approximately 47.18 nautical miles from Ciudad
Del Carmen on the eastern coast of Mexico.         Pemex controlled the well
operations and provided the drilling crew to manage and operate the rig. A
Mexican corporation, Gulf of Mexico Personnel Services S. de R. L. de C. V.
(“GOMPS”), provided a maintenance crew.
      Sandria was employed by GOMPS as part of the maintenance crew
assigned to assist Pemex with its offshore drilling operations aboard the Pride
Mississippi. While Sandria and other crew members were tying down a piece
of equipment in preparation for a pending storm, it became disconnected from
the rig and fell into the water, pulling Sandria and two other crew members
overboard. Sandria and another crew member were killed. The third crew
member was rescued. The accident occurred in Mexican waters in the Gulf of
Mexico.
      The Mexican Ministry of Labor and Social Security assumed jurisdiction
over the accident and investigated its cause. Participants in the investigation
included Mexico’s Federal Labor Inspectors as well as representatives of the
Safety and Health Commission. The investigations occurred entirely in Mexico.
According to accident reports, the family members of the deceased crew members
were to be compensated in accordance with the laws of Mexico.
      On September 12, 2006, Saqui, a Mexican citizen, filed suit in the
Southern District of Texas as Sandria’s personal representative against PCA,
alleging that PCA failed to provide a safe workplace. On October 12, 2006, PCA
filed a motion to dismiss on FNC grounds. In its motion, PCA asserted that it
would agree to submit to the jurisdiction of the Mexican courts and to make
available there any witnesses under its control. On November 6, 2006, Saqui


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filed a response to PCA’s motion to dismiss, arguing that Mexico did not provide
an available forum.
      PCA and Saqui both presented evidence as to whether Mexico was an
available forum. PCA submitted an affidavit from Octavio Canton (“Canton”),
an attorney licensed to practice law in Mexico. Canton’s affidavit stated that
Mexico has jurisdiction to adjudicate Saqui’s claims, and that the laws of Mexico
provide Saqui with a legal remedy. Saqui countered Canton’s opinion with that
of Henry St. Dahl (“Dahl”), an expert in international law. Dahl’s affidavit
incorporated an affidavit from Leonel Pereznieto-Castro (“Pereznieto”).
Pereznieto’s affidavit stated that there is “preemptive jurisdiction” anytime a
court in the United States dismisses a case on FNC grounds in favor of a forum
in Mexico. Preemptive jurisdiction allegedly requires the Mexican court to reject
jurisdiction over the case, even if the defendant agrees to submit to the
jurisdiction of Mexican courts.
      Pereznieto’s affidavit relied on a case where he was retained as an expert,
pending in multi-district litigation (“MDL”), as proof that “preemptive
jurisdiction” is a real legal concept in Mexico. Pereznieto explained that when
the plaintiff in that case, Sofia Lopez de Manez (“Manez”), re-filed her case in
Mexico, the Mexican court dismissed it for lack of jurisdiction.         In In re
Bridgestone/Firestone, Inc., Tires Prod. Liab. Action, 

, 939
(S.D. Ind. 2004), the MDL court dismissed Manez’s claims on FNC grounds. On
appeal, the Seventh Circuit reversed. The Seventh Circuit opined that the case
would be an “easy candidate for straightforward affirmance,” but that Manez
had presented evidence that she filed the case in Mexico after the district court’s
dismissal and the Mexican court had determined that it lacked jurisdiction to
hear the case. In re Bridgestone/Firestone, Inc., Tires Prod. Liab. Action, 

, 705 (7th Cir. 2005). The defendants asserted, however, that Manez
acted improperly because she (1) failed to notify the defendants that she was


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filing suit and (2) did not file suit in the Mexican state where the underlying
accident in the case occurred. 

Thus, the Seventh Circuit remanded
and instructed the MDL court to hold an evidentiary hearing on those issues.

      The MDL court held an evidentiary hearing to determine whether (1) the
plaintiff’s actions were taken in good faith, and (2) the Mexican court decisions
were entitled to recognition in the United States. In re Bridgestone/Firestone,
Inc., Tires Prod. Liab. Litig., 

, 919-20 (S.D. Ind. 2006). The
MDL court explained that Manez retained Pereznieto to pursue her claim in
Mexican court. 

The MDL court found that Manez “appear[ed] to
have contrived this ‘adverse’ ruling by intentionally filing the case in a [Mexican]
court lacking jurisdiction, and when the dismissal came, those orders . . . were
submitted to the Seventh Circuit as proof that Mexican courts severally were
unavailable.” 

Furthermore, the MDL court sanctioned Pereznieto,
“the apparent mastermind behind these frauds on the U.S. and Mexican courts”
and ordered him to pay a personal sanction in the amount of $100,000. In re
Bridgestone/Firestone, Inc., Tires Product Liab. Litig., 

, 933
(S.D. Ind. 2006).
      On February 14, 2007, the district court denied PCA’s motion to dismiss.
The court determined that PCA’s and Saqui’s experts, including Pereznieto, were
equally credible. The court did not mention the MDL court’s November 16th or
December 14th orders, that found Pereznieto to have committed fraud.
      On July 27, 2007, PCA filed a renewed motion to dismiss on FNC grounds.
PCA asserted that after investigating the Manez case, it uncovered that
Pereznieto committed fraud and then took Dahl’s deposition. Dahl admitted
that he relied heavily on Pereznieto’s affidavit.      Dahl conceded that if the
Mexican court decisions he relied upon were obtained by a fraudulent
manipulation of the Mexican court to procure dismissals, they were weak


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authority for the proposition that a Mexican court might not hear the instant
case. Dahl went on to concede that survivors, beneficiaries, and heirs have a
remedy under Mexico’s civil code for tort claims. Finally, Dahl agreed that an
employee working for a Mexican company on the Continental Shelf of Mexico
adjacent to the Mexican shoreline, under contract to the Mexican National Oil
Company, is certainly within the reach of Mexico’s laws. Saqui opposed PCA’s
motion to dismiss.
      While the instant case was percolating in the district court, Pereznieto
appealed the MDL court’s sanctions order against him. Manez v. Bridgestone
Firestone N. Am. Tire, LLC, 

(7th Cir. 2008). On July 11, 2008, the
Seventh Circuit held that the MDL court erred in awarding sanctions, because
“Pereznieto did not receive constitutionally adequate notice and an opportunity
to be heard in the proceedings that led to the $100,000 fine and other sanctions
against him.” 

Thus, the Seventh Circuit vacated the district
court’s order and remanded for reconsideration in light of its opinion.
      In this case, the district court referred PCA’s renewed motion to dismiss
on FNC grounds to the magistrate judge. On September 5, 2008, the magistrate
judge issued its Report and Recommendation (“R & R”), conditionally granting
PCA’s motion to dismiss on FNC grounds. The R & R noted that “Dahl concedes
in his deposition testimony, [that] his opinion is based heavily on the opinion
of Dr. Pereznieto who, the [c]ourt now knows, was previously involved in
perpetrating a fraud upon another United States District Court.” The R & R
determined that in light of this “new” information, it could not consider Saqui’s
experts to be credible. The R & R then recognized that Fifth Circuit law has
consistently held that when a defendant submits to the jurisdiction of an
alternate forum, that renders the forum available for purposes of FNC analysis.
Thus, the R & R found Mexico to be an available forum. The R & R did not
reference the Seventh Circuit’s opinion vacating the MDL court’s sanctions


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against Pereznieto. Ultimately, the R & R recommended that the district court
grant PCA’s motion to dismiss on FNC grounds if PCA submitted to the
jurisdiction of Mexico’s courts. The R & R also recommended that the district
court resume jurisdiction if the Mexican court did not accept the case. On
September 29, 2008, the district court accepted the R & R in its entirety. In
doing so, it stated that it had given the “matter de novo review under 28 U.S.C.
§ 636(b)(1)(c).”
        On appeal, Saqui raises two points of error which we address in turn.
                               II. DISCUSSION
A.      PCA’s Renewed Motion to Dismiss
        Saqui alleges that the district court committed clear error by reviewing
its February 14, 2007 order denying PCA’s motion to dismiss on FNC grounds
because there was evidence of Pereznieto’s alleged fraud available before that
order was issued and PCA did not exercise due diligence in trying to get this
information to the district court prior to its ruling. Saqui also argues that the
district court did not engage in a de novo review of the magistrate’s R & R,
because it adopted it ten days after it was issued. These arguments have no
merit.
        As an initial matter, the district court’s February 14th order was an
interlocutory order, not a final judgment. This court has explained that when
a district court rules on an interlocutory order, it is “free to reconsider and
reverse its decision for any reason it deems sufficient, even in the absence of
new evidence or an intervening change in or clarification of the substantive
law.” Lavespere v. Niagra Mach. & Tool Works, Inc., 

, 185 (5th Cir.
1990), abrogated on other grounds by Little v. Liquid Air Corp., 

(5th Cir. 1994).
        Furthermore, PCA exercised diligence in bringing the evidence of
Pereznieto’s alleged fraud to the attention of the district court. The MDL court


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did not issue sanctions against Pereznieto until after the briefing had concluded
on the issue of FNC before the district court. After the district court denied
PCA’s claims, it sought to depose Dahl to determine the basis for his opinions.
After PCA received the transcript of Dahl’s testimony, it filed the motion to
reconsider. It was entirely reasonable for PCA to wait to file its motion to
reconsider until after it received Dahl’s testimony indicating that he had
misgivings regarding his previous reliance on Pereznieto’s affidavit.
        Lastly, Saqui argues that the district court did not engage in a de novo
review of the magistrate’s R & R, because it adopted it ten days after it was
issued. In Freeman v. County of Bexar, 

, 852 (5th Cir. 1998), this
court noted that a district court reviewing a magistrate judge’s R & R has wide
discretion to consider and reconsider the magistrate judge’s recommendation.
There is no record support for Saqui’s notion that the district court failed to
exercise the broad discretionary review described in Freeman. Saqui only offers
conjecture that the district court did not engage in a proper de novo review
because it accepted the R & R ten days after it was issued. No case law or
statutory law supports this meritless argument. The district court reviewed the
R & R, considered Saqui’s objections to the R & R, and stated that it had given
the matter de novo review. District court judges have broad discretion in
managing their own dockets. Sims v. ANR Freight Sys. Inc., 

, 849
(5th Cir. 1996). It is not error for the district court to resolve an issue promptly.
        In sum, we find that there was no error in the district court’s handling
of PCA’s renewed motion to dismiss based upon FNC grounds.
B.      Mexico as an Alternative Forum
        Saqui next argues that the district court erred in its decision to grant
PCA’s motion to dismiss for FNC. We review a district court’s dismissal on the
basis of FNC for clear abuse of discretion. See Gonzales v. Chrysler Corp., 

, 379 (5th Cir. 2002) (citing Baumgart v. Fairchild Aircraft Corp., 981


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F.2d 824, 835 (5th Cir. 1993)). In order for a case to be dismissed for FNC,
there must be another forum that could hear the case, and therefore the district
court must first determine whether an alternative forum exists. Piper Aircraft
Co. v. Reyno, 

, 254 n.22 (1981). An alternative forum exists when
it is both available and adequate. In re Air Crash Disaster Near New Orleans,
La., 

, 1165 (5th Cir. 1987) (en banc) (citations omitted), vacated
on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 

(1989), reinstated except as to damages by In re Air Crash Disaster Near New
Orleans, La., 

(5th Cir. 1989) (en banc). If an alternative forum is
both adequate and available, the district court must then weigh various private
and public interest factors to determine whether dismissal is warranted. 

that the district court abused its discretion in finding
Mexico to be an available alternative forum. An alternative forum is available
when “the entire case and all parties can come within the jurisdiction of that
forum.” In re Air Crash 

. Mexico’s availability as an
alternative forum was recently addressed by this court in In re Ford Motor Co.,
— F.3d —, 

(5th Cir. Dec. 16, 2009). In re Ford Motor Co.
involves claims transferred from the MDL court back to the Western District of
Texas. The court noted that “[w]e 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.” 

It recounted this court’s decisions in Gonzales
v. Chrysler Corp., 

, 380 n.3 (5th Cir. 2002), Vasquez v.
Bridgestone/Firestone, Inc., 

, 671 (5th Cir. 2003), and DTEX, LLC
v. BBVA Bancomer, S.A., 

, 804 (5th Cir. 2007), and explained that




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      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 . . . that
      Mexico is an available forum for tort suits against foreign
      defendants. “Our rule of orderliness ‘forbids one of our panels from
      overruling a prior panel.’” 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.

In re Ford Motor Co., 

, at *5 (footnote omitted). The court
went on to note that “[u]nless 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.” 

has agreed to submit to the jurisdiction of the Mexican court,
thereby making Mexico an available forum. In addition, the district court’s
order gives Saqui a right to return to a United States court if the Mexican court
refuses to grant jurisdiction. Finally, Saqui has failed to establish that the
district court abused its discretion in discounting Dahl’s testimony because of
his reliance on Pereznieto’s affidavit.
      Similarly, the district court did not abuse its discretion in determining
that Mexico is an adequate forum. An alternative forum “is adequate when the
parties will not be deprived of all remedies or treated unfairly, even though they
might not enjoy the same benefits as they might receive in an American court.”
In re Air Crash 

(citing Piper Aircraft 

; Syndicate 420 at Lloyd’s London v. Early Am. Ins. Co., 

, 829


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(5th Cir. 1986)). Saqui argues that Mexico is an inadequate forum because: (1)
the amount of damages would be more limited under Mexican as opposed to
American law; (2) there exists corruption in the Mexican courts; (3) long delays
in the Mexican court system; and (4) a “virtual impossibility” to subpoena out
of country witnesses.
      The R & R thoroughly addressed each of the errors Saqui now points to
on appeal. The R & R first found that “the mere fact that the amount of
damages would be more limited under Mexican as opposed to American law,
does not provide ‘the basis for finding Mexican courts an inadequate alternative
forum.’” (quoting 

). The R & R then found that Saqui
failed to support her assertions, or present compelling evidence, that corruption
in the Mexican courts made Mexico an inadequate form. The R & R also found
unpersuasive Saqui’s argument that Mexican courts are known for their “long
delays,” in part because the United States courts are unequipped to compel
testimony from nonparty witnesses located in Mexico, just as Mexican courts
are unequipped to compel testimony from witnesses located in the United
States. The R & R also noted that the case had been stalled in the United
States courts because of the inability of the parties to conduct discovery in
Mexico. The R & R further found that there would likely be fewer delays in the
Mexican courts because the accident occurred in Mexico and involved Mexican
citizens and corporations.
      As mentioned above, this court employs a “clear abuse of discretion”
standard of review when reviewing a motion to dismiss based on FNC.

. The R & R thoroughly reviewed Saqui’s claims and
found them to be without merit. Saqui failed to “plainly demonstrate” that she
is highly unlikely to obtain justice in Mexico, and therefore has failed to
establish how the district court abused its discretion in accepting the R & R’s
reasonable findings.


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       The district court determined that the private and public interest factors
weighed in favor of Mexico as a forum. Saqui contends that the district court
improperly weighed the private factors in its decision to dismiss the case for
FNC.    The factors pertaining to the private interests of the litigants include:
(1) the ease of access to evidence; (2) the availability of compulsory process for
the attendance of unwilling witnesses; (3) the cost of obtaining attendance of
willing witnesses; (4) the possibility of a view of the premises, if appropriate;
and (5) any other practical factors that make trial expeditious and inexpensive.
Gulf Oil Corp. v. Gilbert, 

, 508 (1947).
       Saqui argues that PCA failed to meet its burden of showing that the
private interest factors weighed in PCA’s favor, because PCA did not present
sufficiently detailed evidence of the location of the witnesses and their
anticipated testimony. This court, however, has stated that defendants “must
provide enough information to enable the district court to balance the parties’
interests.” In re Air Crash 

. The district court did not
abuse its discretion in determining that PCA presented sufficient evidence in
support of the private interest factors. PCA established that: (1) the accident
occurred off the coast of Mexico; (2) the injured crew members and their
surviving families, including Saqui, are citizens of and reside in Mexico; (3)
Sandria died while working aboard a PCA owned offshore oil rig that was leased
to, and under the control of, Pemex, the national oil corporation of Mexico; (4)
the maintenance crew, including Sandria, were employees of GOMPS, a
Mexican corporation with its principal place of business in Mexico; (5) PCA did
not control the operations or have any employees aboard the vessel; (6) key
physical evidence and most of the witnesses to the accident were located in
Mexico; and (7) the Mexican National Government investigated the accident,
created documents, and conducted interviews and site inspections in Mexico.




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      This court has held that similar private interest factors weigh in favor of
granting a motion to dismiss on FNC grounds. See, e.g., 

. Vasquez involved personal injuries resulting from a vehicle crash
involving Firestone tires in Mexico. In concluding that the private interest
factors weighed in favor of granting a motion to dismiss on FNC grounds, this
court noted that:
      The driver of the vehicle, and all decedents are Mexican citizens. .
      . . [T]he vehicle and tires were manufactured, purchased, and
      maintained in Mexico. The vehicle had a Mexican owner, and the
      trip took place entirely in Mexico. All the physical evidence and
      medical reports are in Mexico . . . . Federal courts have no power of
      compulsory process over Mexican citizens, including the surviving
      driver and passenger, the police, and mechanics who serviced and
      maintained the vehicle.

case, the R & R engaged in a thorough review of the private interest
factors. Its determination that the factors weighed in PCA’s favor comports
with this court’s case law, and is similar to what this court approved as
sufficient in Vasquez. As a result, the district court did not abuse its discretion
in finding that the private interest factors weighed in favor of dismissal.
      Although the district court found that the private interest factors weighed
in favor of dismissal, it nevertheless weighed the public interest factors and
found that they also weighed strongly in favor of dismissal. See In re Air Crash

(holding that a court is required to examine the
public interest factors only if it cannot determine whether the private interest
factors weigh in favor of dismissal). The relevant public interest factors are: (1)
the administrative difficulties flowing from court congestion; (2) the local




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interest in having localized controversies decided at home; (3) 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; (4) the avoidance of unnecessary problems in conflict
of laws, or in the application of foreign law; and (5) the unfairness of burdening
citizens in an unrelated forum with jury duty. 

      On appeal, Saqui did not address the public interest factors in her brief,
so objections to the district court’s judgment on this issue are waived. See
Audler v. CBD Innovis Inc., 

, 255 (5th Cir. 2008) (“A party waives
an issue if he fails to adequately brief it” on appeal.). Even if we were to
assume that Saqui did not waive her objections, a review of the R & R fails to
demonstrate that the district court abused its discretion. The district court
considered the public interest factors, and determined that this case does not
have a general nexus with Texas that is sufficient to justify Texas’s
commitment of judicial time and resources to it. The R & R explained that the
record does not contain information relative to court congestion in the Mexican
courts. See 

. The R & R then noted that PCA is a
Delaware corporation, that conducted and managed its operations in Mexico.
The R & R then determined that “Mexican law likely will apply to this case, or,
at a minimum, be critical.” Finally, the R & R determined that jury duty would
unfairly burden Texas citizens because Mexico had a far greater interest in the
case than Texas.
      Ultimately, the R & R found that the “case was governed by Mexican law
regarding the deaths of Mexican nationals while working for a Mexican
company while in the waters of Mexico. Other than the Defendant PCA having
an office in Houston, Texas, this case has no meaningful connection to this
forum.” The R & R carefully considered each factor. The district court stated
that it conducted a de novo review of the R & R and considered Saqui’s
objections. The court then accepted the R & R in its entirety. The record fails


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to establish how the court’s determination that the public interest factors
weighed strongly in favor of dismissal was a clear abuse of discretion.
                           III. CONCLUSION
      For the foregoing reasons, we affirm the district court’s judgment in its
entirety.
      All pending motions are DENIED.




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