John M. Merritt (argued), Merritt Associates, P.C., Oklahoma City, OK, for Plaintiffs-Respondents. ON PETITION FOR REHEARING EN BANC (Opinion 580 F.3d 308 (Aug. 21, 2009)) Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
This conclusion is supported by the fact that federal courts routinely find that Mexico is an adequate forum for forum non conveniens purposes. See, e.g., Loya v. Starwood Hotels Resorts Nationwide, Inc., 583 F.3d 656 (9th Cir. 2009) (breach of contract and wrongful death claims); In re: Ford Motor Co., 580 F.3d 308 (5th Cir. 2009) (conditioning dismissal on Mexican court's acceptance of jurisdiction); DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785 (5th Cir. 2007); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (finding that Mexico was an available and adequate forum, but also finding that the district court's failure to include a return jurisdiction clause was an abuse of discretion); Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th Cir. 2002); Navarrete De Pedero v. Schweizer Aircraft Corp., 635 F. Supp. 2d 251 (W.D.N.Y. 2009). The second threshold inquiry is whether foreign law applies. If domestic law applies, forum non conveniens is inapplicable.Gschwind, 161 F.3d at 605; Rivendell, 2 F.3d at 993 n. 4. A federal district court assessing forum non conveniens in a diversity case applies the choice of law rules of the state in which it sits. Piper Aircraft, 454 U.S. at 244 (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)).
The remaining motions were pending upon transfer to the Eastern District of Pennsylvania and consolidation under MDL-875. As to the five motions ruled on by Judge Gex, "there is nothing in the text [of ยง 1407] that authorizes a transferee judge to vacate or modify an order of a transferor judge," In re Pharmacy Benefit Managers Antitrust Litig., Civ. No. 07-1151, ___ F.3d ___, 2009 WL 3030370, at *6 (3d Cir. Sept. 24, 2009), unless it is warranted after application of law of the case principles.Id. at *7; see also, In re Ford Motor Co., 580 F.3d 308, 312 (5th Cir. Aug. 21, 2009). Under the circumstances of this case, the orders entered by Judge Gex on any motions to remand are binding on this Court.
See, e.g., In re Pirelli Tire, 247 S.W.3d at 678; Loya v. Starwood Hotels Resorts Worldwide, Inc., 583 F.3d 656 (9th Cir. 2009); In re Ford Motor Co., 580 F.3d 308 (5th Cir. 2009); DTEX, 508 F.3d at 797; Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003); Gonzalez v. Chrysler Corp., 301 F.3d 377, 382 (5th Cir. 2002); Navarrete De Pedrero v. Schweizer Aircraft Corp., 635 F.Supp.2d 251, 261 (W.D.N.Y. 2009). Vinmar also contends that it has already been the victim of corruption by the Mexican court system related to this controversy.