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reasoning that since the witnesses central to Plaintiffs' negligence claims are located outside the United States, the cost of bringing them to trial in the United States would be substantial.
Summary of this case from Kleiner v. Spinal Kinetics, Inc.Opinion
Case No. CV 13-05251-VAP (DTBx)
01-10-2014
ROSARIO VELASCO, AN INDIVIDUAL; JESUS GARCIA, AN INDIVIDUAL, Plaintiff, v. AMERICANOS USA, LLC, A TEXAS CORP., GREYHOUND LINES, INC., A DELAWARE CORP., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FORUM NON CONVENIENS
[Motion filed on November 12, 2013]
Before the Court is a Motion to Dismiss or Conditionally Stay for Forum Non Conveniens ("Motion" or "Mot.") (Doc. No. 16) filed by Defendants Greyhound Lines, Inc. and Americanos USA, LLC (collectively, the "Greyhound Defendants") and Defendants Omnibus Americanos S.A. de C.V., Autobuses Americanos S.A. de C.V., Grupo Estrella Blanca, Roja Flecha Corporation, Juan Carlos Castillo Sanchez, and Ceasar Portillo (collectively, the "Grupo Defendants"). Defendants also filed a Motion to Stay Discovery (Doc. No. 27). This matter came before the court for hearing on January 6, 2014. The Court has considered all of the papers file in support of, and in opposition to, the motions. For the reasons stated below, the Court GRANTS the Motion to Dismiss for Forum Non Conveniens, and dismisses this action, with conditions as described below. As the Court dismisses this action on the basis of the forum non conveniens doctrine, the Court DENIES the Motion to Stay Discovery as MOOT.
The Court is permitted to impose conditions on defendants when dismissing for forum non conveniens. See Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir. 2001) (holding that, when dismissing for forum non conveniens, conditions may be imposed but are not required).
I. BACKGROUND
A. Factual Allegations
This case arises out of a bus accident. Plaintiffs Rosario Velasco ("Velasco") and Jesus Garcia ("Garcia") were passengers on a bus that embarked from Aguscalientes, Mexico enroute to El Monte, California, and was proceeding northbound on National Highway 45, on the Montezuma Villa Ahumada Chihuahua segment, traveling to Ciudad Juarez at approximately 4:30 a.m on May 7, 2012. (Notice of Removal (Doc. No. 1) Ex. A (First Amended Complaint ("FAC")) at ¶ 34; see also Declaration of Hortensia Garcia Perez (Doc. No. 17) at ¶ 3.) At around the kilometer marker "204+000," a white 1989 Ford pickup truck sat abandoned in the road, facing northbound. (Id. at ¶ 35.) The bus collided with the truck, causing both Plaintiffs to suffer severe injuries. (Id. at ¶ 36.) Velasco was in a coma for two days, needed 120 sutures on her face, and her right ear and arm were amputated. (Id. at ¶ 38.) Garcia suffered injuries to his arm, hand, back, and neck, lacerations to hisface and forehead, and loss of consciousness. (Id.)
Plaintiffs allege that the bus had two drivers, operating as "partners," Defendants Juan Carlos Castillo Sanchez ("Sanchez") and Cesar Portillo ("Portillo"). (Id. at ¶ 5.) According to Plaintiffs, Sanchez was under the influence of alcohol while driving at the time of the accident, which was a contributing cause of the collision. (Id. at ¶ 48.)
Plaintiffs also make a number of allegations concerning corporate partnerships and other affiliations between the Greyhound and Grupo Defendants. For example, Plaintiffs allege that the bus was owned by Defendant Omnibus Americanos S.A. de C.V. ("Omnibus"), and that Omnibus, Greyhound, and Defendant Sistema Internacional de Transporte de Autobusses, Inc., were in a joint venture named "Autobuses Americanos." (Id. at ¶ 2.) Furthermore, Plaintiffs allege that the bus was leased to Omnibus by Roja Flecha Corporation. (Id.) According to Plaintiffs, a number of the Defendant corporations "have engaged in and continue to engage in an interwoven series of joint ventures/and or other business relationships to provide bus transportation from the southwestern United States, including California, to destinations in Mexico and back." (Id. at ¶ 13.)
The moving Defendants claim that the remaining corporate defendant, Sistema Internacional De Transporte De Autobuses Inc., was dissolved a number of years ago. (Mot. at 6.) All further references to "Defendants" refer only to those that filed the Motion.
Plaintiffs allege that when they purchased their bus tickets they were under the impression they would be traveling on American buses, operated in conjunction with American bus operators, including Defendant Greyhound. (Id. at ¶¶ 62, 73.) Plaintiffs relied on the implied safety of American-operated buses, but the ambiguous corporate structures and non-transparent operating agreements between the Greyhound Defendants and the Grupo Defendants were misrepresented to them. (Id. at ¶¶ 63, 74.)
B. Procedural History
On or about February 22, 2013, Plaintiffs filed the FAC in the California Superior Court for the County of Los Angeles. The FAC contains six claims: (1) Negligence; (2) Negligent Hiring/Retention/Training/Supervision/ Entrustment; (3) Negligent Misrepresentation; (4) Intentional Misrepresentation (Fraud); (5) Negligence (Agency); and (6) Negligence (Common Carrier). Plaintiffs' Complaint alleges not only that the driver of the bus was negligent in causing the accident, but also that the Defendants made negligent and intentional representations that "Plaintiffs' travel would be on safe, secure American buses" when Defendants knew those representations were untrue. (Opp'n at 2.)
The Defendants removed the action to this Court on July 19, 2013. (Notice of Removal (Doc. No. 1).) On November 12, 2103, the Defendants filed the Motion to Dismiss for Forum Non Conveniens. (Doc. No. 16.) With respect to the Motion to Stay Discovery, Defendants filed that motion on November 18, 2013. (Doc. No. 27.) Plaintiffs filed their Oppositions to both motions on December 3, 2013. (Doc. Nos. 33, 35.) On December 9, 2013, the Defendants filed Replies to the Oppositions. (Doc. Nos. 38, 39.) Along with the Reply to the forum non conveniens motion, the Defendants also filed Objections to the Declarations filed by the Plaintiffs in support of their Oppositions. (Doc. No. 43.)
The Court does not find it necessary to rely on any of the evidence objected to by Defendants in order to resolve the Motion, and hence does not reach the merits of these objections.
II. LEGAL STANDARD
"The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). The forum non conveniens doctrine "is based on the inherent power of the courts to decline jurisdiction in exceptional circumstances." Paper Operations Consultants Int'l, Ltd. v. S.S. Hong Kong Amber, 513 F.2d 667, 670 (9th Cir. 1975).
"To prevail on a motion to dismiss based upon forum non conveniens, a defendant bears the burden of demonstrating an adequate alternative forum, and that the balance of private and public interest factors favors dismissal." Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002)). Where the plaintiffs are citizens of the United States, the defendants must satisfy a "heavy burden of proof," whereas "a foreign plaintiff's choice deserves less deference." Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir. 2001) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981)).
III. FORUM NON CONVENIENS
According to Defendants, Mexico is an adequate alternative forum, and the balance of public and private factors favors adjudication of the Plaintiffs' claims in a Mexican court. (Mot. at 2.) Plaintiffs counter that Defendants have not met their burden under the forum non conveniens doctrine to dismiss the case, especially because Plaintiffs here are United States citizens. (Opp'n at 12.)
A. Adequate Alternative Forum
The first factor that the Court must consider in a forum non conveniens analysis is whether there is an "adequate, alternative forum" for the Plaintiffs to bring their claims. An adequate, alternative forum exists where: (1) defendants are amenable to service of process in the foreign forum and (2) the forum provides plaintiff with a sufficient remedy for his or her wrong. Dole Food Co., Inc., 303 F.3d at 1118 (citing Lueck, 236 F.3d at 1143 (citing, in turn, Piper Aircraft Co., 454 U.S. at 254 n. 22)).
1. Defendants are Amenable to Service in Mexico
Five of the Defendants are already subject to jurisdiction in Mexico because they are Mexican residents (Sanchez, Portillo, Omnibus, Autobuses Americanos, and Grupo Estrella Blanca). (See Mot. at 11 n. 1; Declaration of Fernando Arturo Gonzales Gonzales ("Gonzalez Gonzalez Decl.") (Doc. No. 25) at ¶¶ 23-24.) Moreover, Defendants all agree to submit to jurisdiction in Mexico and waive any applicable statute of limitations that may bar the Plaintiffs' claims. (Mot. at 11 ("[A]ll defendants to this action agree to submit themselves to the jurisdiction of Mexico's courts, and to waive any applicable statute of limitations . . . ."). Accordingly, this element is satisfied.
2. Mexico Would Provide Plaintiffs With a Sufficient Remedy for Their Wrongs
Next, Defendants must show that Mexico provides the Plaintiffs with sufficient remedy for their wrongs. "Generally, an alternative forum is available where . . . the forum provides 'some remedy' for the wrong at issue. This test is easy to pass; typically, a forum will be inadequate only where the remedy provided is 'so clearly inadequate or unsatisfactory, that it is no remedy at all.'" Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006). The Ninth Circuit has held that the inability to assert specific claims, for example, those pursuant to RICO and the Lanham Act, does not render a forum inadequate. See Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991).
Arguing that Mexico is an adequate forum, Defendants cite numerous other courts who have so found (See Mot. at 12 (citing, e.g., Martinez v. White, 492 F. Supp. 2d 1186, 1190 (N.D. Cal. 2007) and Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 666 (9th Cir. 2009)). Defendants contend that any argument made by Plaintiffs that litigation outcomes in Mexico would be less favorable to them is not a sufficient basis to find that Mexico is an inadequate forum. (Id.)
Plaintiffs counter that Defendants have merely argued that Mexico has been declared to be an adequate alternative forum in the past, but such an argument, on its own, has been deemed insufficient by the Ninth Circuit in Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d 1078, 1090 (9th Cir. 1999). Plaintiffs rely on the decision in Alpha Therapeutic in vain; this decision was withdrawn by the Ninth Circuit (see Alpha Therapeutic Corp. v. Kyokai, 237 F.3d 1007 (9th Cir. 2001) (withdrawing previous opinion pursuant to a stipulation of the parties)), and therefore has diminished precedential value. See United States v. Ruiz, 935 F.2d 1033, 1037 (9th Cir. 1991) ("Ruling on the basis of a decision that the court knows to have been withdrawn, however, is sure grounds for reversal.").
Plaintiffs plainly alerted the Court that the opinion in Alpha Therapeutic had been withdrawn.
Even assuming that Alpha Therapeutic still has precedential value on the point for which Plaintiffs cite it, i.e., that courts may not solely rely on previous rulings that a foreign jurisdiction is an adequate, alternative forum, as discussed below, the Defendants provided the Court with an expert declaration concerning Mexican law. This declaration suffices to provide the Court with information concerning Mexican law and the adequacy of Mexico as a prospective forum should the Court grant the Motion. Using this information, the Court now turns to whether Mexico would be an adequate forum.
Defendants did not specifically refer to this declaration in the text of the Motion, but they did file it in support of the Motion and the Court has considered it.
a. The Claims Relating to the Accident (Claims One, Two, Five, and Six)
The Court is satisfied that, as to Plaintiffs' negligence claims relating directly to the accident itself (claims one, two, five and six), the Defendants have met their burden that Mexico provides an adequate forum for the adjudication of those claims. Defendants submitted a declaration from Fernando Arturo Gonzalez Gonzalez, a Mexican attorney, explaining various avenues for recovery as a result of civil litigation in Mexico. (See Gonzalez Gonzalez Decl. at ¶¶ 1, 4.) According to Gonzalez Gonzalez, "a Mexican court is a competent forum to judge on this matter," and Plaintiffs could recover on multiple theories sounding in tort: "subjective non-contractual liability" and "objective non-contractual liability." (Gonzalez Gonzalez Decl. at ¶¶ 5, 24.) He further states that, as a result of a transportation accident, a potential plaintiff may collect damages related to medical expenses, as well as "moral damages" for disfigurement. (Id. at ¶ 15.) With respect to related companies, Gonzalez Gonzalez posits that the carrier or transportation company would be liable for its drivers, as would the owner of the vehicle in instances where the owner is not the carrier. (Id. at ¶ 6.)
Taking Gonzalez Gonzalez's uncontroverted representations about Mexican law into account, the Court is satisfied that Mexican law provides for "'some remedy' for the wrong at issue," as it relates to the liability of carriers for damages caused by their drivers.
b. The Misrepresentation Claims (Claims Three and Four)
The issue of an adequate forum as to the misrepresentation claims (claims three and four), however, is not as easily resolved. The Plaintiffs alleged in the FAC that together Americanos and Greyhound engaged in various acts of misrepresentation in connection with the booking of Plaintiffs' return trips to the United States. Plaintiffs alleged that when they booked their return passage on an Americanos-branded bus, they were told that they would be traveling on American-operated buses operated in affiliation with Greyhound, as opposed to Mexican buses; Plaintiffs relied upon these misrepresentations because they thought the Greyhound buses would be safer. (FAC at ¶¶ 62-66, 73-77.) Gonzalez Gonzalez does not address the misrepresentation action in his declaration, and Plaintiffs do not argue they would be able to recover any discrete damages for the alleged misrepresentation.
Even though Mexican law may not explicitly provide a claim for misrepresentation, however, Plaintiffs' damages as a result of any alleged misrepresentation are the same as those that were caused by any negligence on the part of the carriers, i.e., their bodily injuries, emotional distress, and other economic and noneconomic damage suffered as a result of the accident.
Indeed, despite Plaintiffs' attempts to characterize the misrepresentation and the negligence claim as having equal importance, that argument is without merit. The negligence claim is the central claim, and bears far more importance to the core issues in the case than the misrepresentation claims.
For example, in Loya v. Starwood Hotels & Resorts, plaintiffs filed a wrongful death claim against Starwood after a diving accident in Mexico and also filed a claim for false advertising under Washington state law. Loya v. Starwood Hotels & Resorts, 2007 WL 1991163, at *7 (W.D. Wash. July 6, 2007). The District Court noted that the gravamen of the plaintiffs' claims was the wrongful death claim, and that consideration of the wrongful death claim should be central to the Court's analysis. Id. at *7 n. 5 ("The Court recognizes that Plaintiffs have also sued some Defendants for false advertising . . . But all of Plaintiffs' claims revolve around their main claim that Defendants' negligence caused Mr. Loya's death. And it is that wrongful death claim that should be the focus of the Court's analysis."). The Ninth Circuit affirmed the District Court, noting it was not unreasonable to view the wrongful death claim as central because "except for [one claim], all of Loya's claims revolve around the claim that negligence of various people in Mexico caused Ricardo Loya's death." See Loya, 583 F.3d 656, 666 n. 9 (9th Cir. 2009).
Plaintiffs have not identified any category of damages peculiar to their misrepresentation claim. Given that the recovery Plaintiffs would be entitled to should they prevail on the misrepresentation claim would compensate them for the same as that they would be entitled to under their negligence theory, it cannot be said that Mexico does not provide "some remedy" for their wrongs. Thus, Plaintiffs have not "shown that possible recovery on the other tort . . . claims would be 'so clearly inadequate or unsatisfactory that it is no remedy at all,'" to find that Mexico is not an adequate, alternative forum. Lockman Found., 930 F.2d 764 at 769.
Accordingly, the Court finds that Mexico would be an adequate, alternative forum.
B. Preliminary Consideration: Plaintiffs' Chosen Forum
"[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum." Carijano, 643 F.3d at 1227; see also Contact Lumber Co., 918 F.2d at 1449 ("[W]hile a U.S. citizen has no absolute right to sue in a U.S. court, great deference is due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.") (quoting Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir. 1984)).
First, the Court notes that Defendants initially questioned the citizenship of the Plaintiffs for diversity purposes. (See Defendants' Evidentiary Objections (Doc. No. 43) at ¶ 1 ("Plaintiff failed to submit credible evidence of his citizenship status [no California Drivers license or ID card, no U.S. Visa, no U.S. Passport, no Permanent or Temporary Resident Card]; nor did he submit any evidence to demonstrate domicile.").) The FAC states "Plaintiffs . . . at all times herein relevant, were both residents of the County of Los Angeles, State of California." (FAC at ¶ 27.)
As the FAC did not allege Plaintiffs' domicile or citizenship, the Court ordered Plaintiffs to submit new declarations, with supporting evidence if possible, stating their domicile and citizenship at the time of the accident. (See Order (Doc. No. 46).) Plaintiffs filed supplemental declarations, stating they are citizens of the United States, and were California citizens for diversity purposes at the time of the accident. (See Supplemental Declaration of Rosario Velasco ("Velasco Supp. Decl.") (Doc. No. 47) at ¶¶ 2, 8; Supplemental Declaration of Jesus Garcia ("Garcia Supp. Decl.") (Doc. No. 48) at ¶¶ 2, 8).) Plaintiffs attached California driver's licenses and United States passports as exhibits to the supplemental declarations. (Velasco Supp. Decl. Ex. 2-3; Garcia Supp. Decl. Ex. 2-3.)
As United States citizens, and citizens of California, Plaintiffs' choice of forum in this district is entitled "great deference" which the Court will respect. Even considering this deference, however, Plaintiffs' citizenship does not, on its own, end the forum non conveniens analysis. Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983) ("The presence of American plaintiffs, however, is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens."). Keeping this deference in mind, and taking care to give Plaintiffs' choice of forum "the appropriate regard," the Court next turns to the private interest factors. See Neuralstem, Inc. v. ReNeuron, Ltd., 365 F. App'x 770, 771 (9th Cir. 2010) (finding the District Court abused its discretion by failing to weigh the plaintiff's United States residency and choice of forum in the private interest factors analysis).
C. Private Interest Factors
The Court next turns to the private interest factors. When assessing a motion to dismiss for forum non conveniens, the private interest factors to be considered include: (1) the residence of the parties and the witnesses; (2) the forum's convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) "all other practical problems that make trial of a case easy, expeditious and inexpensive." Lueck, 236 F.3d at 1145 (citing Gulf Oil Corp., 330 U.S. at 508 and Contact Lumber Co. v. P.T. Moges Shipping Co. Ltd., 918 F.2d 1446, 1449 (9th Cir. 1990)). "The district court should look to any or all of the above factors which are relevant to the case before it, giving appropriate weight to each. It should consider them together in arriving at a balanced conclusion." Id. (internal citations omitted).
When assessing these private interest factors, courts should evaluate "the materiality and importance of the anticipated [evidence and] witnesses' testimony and then determine[ ] their accessibility and convenience to the forum." Id. at 1146.
1. Residence of the Parties and Witnesses and the Forum's Convenience to the Litigants
a. The Parties
As discussed above, the Plaintiffs are citizens of the United States. Litigation here would be convenient to them, especially because they suffered grave injuries in the accident. (Opp'n at 17.) Also, as previously discussed, the Grupo Defendants are citizens of Mexico, and are subject to Mexican jurisdiction. The remaining Defendants, the Greyhound Defendants, are all citizens of the United States, though none are citizens of California.
In accordance with the deference shown to California residents bringing suit in their home district, this factor weighs against granting the Motion. See Boston Telecommunications Grp., Inc. v. Wood, 588 F.3d 1201, 1207 (9th Cir. 2009) (finding the District Court had erred when it held the private interest factor concerning the parties' residence was "neutral" when plaintiffs were United States citizens and also noting that if plaintiff were a California citizen, he would have been "in a stronger position.").
b. The Witnesses
Defendants contend the vast majority of the witnesses will likely be found in Mexico. Those witnesses include: the bus drivers, the accident investigators, the police and medical personnel who initially responded to the scene, and personnel who ultimately cared for the passengers in medical facilities, the owner of the abandoned truck, the ticket agent who sold the bus tickets to Plaintiffs in Mexico, executives and managers of the Mexican bus companies, and "Mexican engineers and public works professionals." (Mot. at 14-16.)
Plaintiffs disagree, and argue the majority of the relevant witnesses are located in the United States. Those witnesses include: the Plaintiffs, their daughter, Nora Martinez, who will testify she made a telephone call to inquire about what company operated the bus and how tickets were purchased, Gilberto Rosales, a fellow bus passenger and California resident who has also filed a lawsuit in connection with the bus accident, and executives of the Greyhound Defendants. (Opp'n at 14-15.) Moreover, Plaintiffs contend the citizenship of the driver of the white truck is unknown, because he or she has yet to be identified, and furthermore that Defendants' contention that Mexican engineers and public works professionals are necessary is spurious. (Id.)
While Plaintiffs state Gilberto Rosales is a "key percipient witness," they provide no detail as to what he would testify to, or even if he has any recollection of the accident. (See Opp'n at 15.)
The Court finds that the majority of the material witnesses to Plaintiffs' negligence claims reside in Mexico, principally the Defendant bus drivers, the accident investigators, and the first responders to the scene of the accident; Sanchez, the bus driver, is likely the most important of any of the witnesses. Sanchez's testimony concerning what he saw leading up to the accident, his rate of speed at the time of he accident, his state of fatigue -- including the last time he relinquished the wheel to his partner driver, Castillo -- and if he was under the influence of alcohol at the time of the crash, are all critical to Plaintiffs' case. So too is the testimony of the accident reconstruction expert. The accident reconstruction expert's testimony will either support or contradict Sanchez's accounting of events leading up to the collision with the white truck.
The police and medical personnel who responded to the crash are the closest thing to third party percipient witnesses in this case. They will be able to give testimony about the scene immediately after the crash. Any statements from the passengers or from the drivers would have been made to these first responders.
Plaintiffs attempt to diminish further the materiality of these and other foreign witnesses, arguing that "the damages evidence in Mexico is limited to a brief 24 hour period for Mr. Garcia and a 48 hour period for Ms. Velasco, and limited to a handful of paramedics and attending doctors at the Mexican hospital." (Mot. at 17.) But the time period immediately after the collision is of paramount importance to Plaintiffs' case, and cannot be discounted. Though Plaintiffs would rather the Court focus on the numerous American executives present in the United States whose testimony would be relevant to their claims for misrepresentation, the importance of such testimony would easily be dwarfed by the relevance the testimony of the bus driver, accident reconstruction experts, and first responders. As all of those witnesses reside outside of the United States, this forum is not convenient.
In sum, the residence of the parties to the action strongly weighs against granting the Motion, as Plaintiffs' choice of forum is entitled to deference. But the vast majority of the material witnesses are all located in Mexico, which weighs in favor of granting the Motion.
2. Access to Physical Evidence and Other Sources of Proof
Defendants contend that, because the accident occurred in Mexico, and much of the physical evidence, documentary evidence, and witnesses are in Mexico, this factor weighs in favor of dismissal. (Mot. at 16.) For example, the scene of the accident, the bus, and the truck the bus collided with, and many material witnesses are all located in Mexico, as are the employment records and training records of the drivers, the police reports, and the accident reconstruction reports, and the personnel who generated those documents. (Id.)
Plaintiffs counter that the police records have already been made available to all parties and translated into English. (Opp'n at 18 ("All photographs, documents, reports, and records of the Mexican police have been produced to all parties, and have been translated [in]to English.").)
Even if the police records have been made available to all parties and have been translated into English, however, the majority of the other evidence and records are still located in Mexico. Most importantly, the wreckage of the bus and the accident scene itself are in Mexico. (See Declaration of Arturo Martinez Rivas ("Rivas Decl.") (Doc. No. 25) at ¶ 7 ("The autobus in question . . . was at the time of the accident, owned and operated by OMNIBUS. OMNIBUS maintains possession and control over the autobus here in Mexico.").) Plaintiffs contend that because Omnibus has made the bus available for inspection to all parties to the litigation, this factor is at best neutral. (Opp'n at 18.)
Courts have recognized in aviation accident cases, however, that this factor almost always favors dismissal, because the accident wreckage is likely located outside the United States, along with other witnesses and evidence. See Harp v. Airblue Ltd., 879 F. Supp. 2d 1069, 1077 (C.D. Cal. 2012). The situation here is analogous: the wreckage of the bus and the truck it collided with are both located in Mexico. It would be difficult and costly to make that evidence available in California.
Accordingly, the Court finds that this factor weighs in favor of dismissal.
3. Whether Unwilling Witnesses Can Be Compelled to Testify
"Dismissal on the grounds of forum non conveniens may be appropriate when the court finds 'critical witnesses' to the litigation are beyond its jurisdictional reach." Kinjo v. Champion Shipping AS, 2010 WL 3069343, at *6 (E.D. Cal. Aug. 4, 2010) (citing In re Air Crash Over Taiwan Straits on May 25, 2002, 331 F. Supp. 2d 1176, 1200 (C.D. Cal. 2004)).
Defendants contend this factor also weighs in favor of dismissal, because all of the witnesses residing in Mexico are beyond the reach of subpoena. (Mot. at 17.) According to Defendants "[t]he specter of Hague discovery is by itself strong grounds for [forum non conveniens]," citing In re Air Crash at Madrid, Spain, on August 20, 2008, 893 F. Supp. 2d 1020, 1032 (C.D. Cal. 2011).
Plaintiffs, on the other hand, argue that because Defendants did not allege that any witnesses are unwilling to testify and instead merely "identifi[ed] categories of witnesses it intends to call who are outside of its control" they have not met their burden as to this factor. (Opp'n at 19 (citing Carijano, 643 F.3d at 1231).)
First, the Court disagrees with Defendants that the District Court's inability to compel live testimony, and instead requiring litigants to rely on deposition testimony pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, is per se evidence that this factor favors dismissal. "'Any court . . . will necessarily face some difficulty in securing evidence from abroad,' but these complications do not necessarily justify dismissal." Boston Telecommunications, 588 F.3d at 1208 (9th Cir. 2009) (quoting Tuazon, 433 F.3d at 1181).
Indeed, the Court in Madrid undertook a lengthy analysis of this factor, despite its acknowledgment that "courts have noted" the shortcomings of the Hague Convention as a means of discovery. Madrid, 893 F. Supp. 2d at 1032. There, the District Court found this factor only "slightly favored" dismissal.
On the other hand, the Court also disagrees with Plaintiffs that the Ninth Circuit's holding in Carijano compels the Court to find Defendants' evidence concerning witness unavailability is insufficient. In Carijano, the Ninth Circuit reversed the District Court's grant of a forum non conveniens motion in part because the court did not correctly analyze this factor. According to the Ninth Circuit, the District Court erred when it found this factor to be in favor of dismissal, despite the fact that the defendant did not contend any witness was unwilling to testify and because the court failed to consider evidence that five of the defendant's former employees indicated their willingness to testify. Carijano, 643 F.3d at 1231.
Here, Defendants have provided evidence that at least some witnesses are unwilling to appear at trial. Arturo Rivas, legal manager of Grupo, stated in his declaration that "to require individuals to travel to the United States for this lawsuit would impose great difficulties and hardship on me [and] my business . . . it is likely that certain witnesses will be unable or unwilling to travel to the United States . . . ." (Rivas Decl. at ¶ 8.) Plaintiffs, on the other hand, have given no indication that any of the critical witnesses are willing to testify.
Accordingly, as Defendants have shown that multiple witnesses would be unwilling to testify in the United States and the Court cannot compel their appearance, this factor weighs in favor of granting the Motion. See Kinjo, 2010 WL 3069343, at *6 ("Further, where all witnesses to liability are located in a foreign forum and where a court would be aided by familiarity with the local landscape and easy access to the site of an accident, it may be 'unfair' to make foreign defendants proceed to trial in a United States forum.") (quoting Piper, 454 U.S. at 1199).
4. Costs of Bringing Witnesses to Trial
With respect to the costs of bringing witnesses to trial, this factor also supports dismissal. As discussed above, the witnesses central to Plaintiffs' negligence claims are all located outside of the United States; the costs of bringing them to trial would be substantial, whereas the costs would likely be smaller if this action was brought in Mexico, closer to the majority of the material witnesses and to the accident site itself. See id. ("the majority of witnesses to the accident, rescue, and subsequent investigation are located in Hong Kong or Southeast Asia. As such, the cost of bringing witnesses to trial would be substantially less if the claims were litigated in Hong Kong.").
Plaintiffs claim that because some of the Defendants are bus companies, they have access to cost-free transportation of any witnesses from Mexico. (Opp'n at 20.) The Defendants' resources, however, are immaterial. See Vivendi S.A. v. T-Mobile USA, Inc., 2008 WL 2345283, at *13 (W.D. Wash. June 5, 2008) aff'd sub nom. Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689 (9th Cir. 2009) ("As Defendants point out, the fact that the Defendants have substantial resources to pay the costs of bringing the witnesses to trial does not mean that the court should impose upon them the burden of litigating in an otherwise inconvenient forum.") (citation omitted).
Though there will be travel required to maintain this action in either forum, it will be decidedly less costly to have the Plaintiffs, their daughter, and American executives travel to Mexico, than the alternative of having the two bus drivers, the accident investigators, the police officers, medical personnel, and Mexican executives travel to the United States. Accordingly, this factor weighs in favor of dismissal.
5. The Enforceability of the Judgment
This factor is neutral. Defendants argue this factor favors dismissal because "[t]here is no bilateral treaty or multilateral international convention in force between the United States and any other country on reciprocal recognition and enforcement of judgments." (Mot. at 19 (quoting U.S. Department of State, Law & Policy, "Enforcement of Judgments" (2013), available at http://travel.state.gov/law/judicial/judicial_691.html).)
Plaintiffs respond that a United States judgment can be enforced in Mexico through the "homologacion" process. (Opp'n at 20.) Plaintiffs also fault Defendants for failing to have Gonzalez Gonzalez, their Mexican law expert, provide the Court with any information on the subject. (Id.)
As support for this assertion, Plaintiffs attach an article obtained from the internet, which appears to be a white paper available on a law firm's website. The Court attaches very little weight to this piece of evidence.
As neither party presents any persuasive evidence as to this factor, the Court finds it is neutral.
6. Practical Problems
Defendants present two practical problems, essentially in passing, neither of which is particularly compelling. Grupo and Greyhound contend they have an "inter-line" agreement, which allows them to sell each other's tickets, but limits the ability to seek indemnification for damages occurring on the other company's lines. This agreement requires suits brought concerning accidents occurring on Mexican soil to be adjudicated in Mexico. To the extent this argument has any bearing on this factor at all, it only slightly supports dismissal.
Defendants also contend that a forum selection clause on the back of Plaintiffs' tickets requires this action to be brought in Mexico, but makes no serious argument that it should be enforced. (See Mot. at 19; Opp'n at 21-22; Reply at 7.)
Thus, while Plaintiffs have brought suit in their home forum, and litigation here would undoubtedly be convenient to them, the remainder of the private factors, with the exception of the one that is neutral, weigh in favor of granting the Motion. The material witnesses and the most critical evidence is located in Mexico. Moreover, the Court cannot compel those witnesses to testify, and even if those witnesses came willingly, the costs would be substantial in comparison to litigating their claims in Mexico.
The Court now turns to the public interest factors.
D. Public Interest Factors
In addition to the private interest factors, the Court considers public interest factors, which include: "(1) the local interest in the lawsuit, (2) the court's familiarity with the governing law, (3) the burden on local courts and juries, (4) congestion in the court, and (5) the costs of resolving a dispute unrelated to a particular forum." Boston Telecommunications, 588 F.3d at 1211 (citing Tuazon, 433 F.3d at 1181).
1. Local Interest in the Lawsuit
There is a split of authority in this Circuit as to what can be considered when addressing this factor. Carijano, 643 F.3d at 1233 n. 3 (9th Cir. 2011) ("There appears to be a difference of opinion about whether it is appropriate to compare the state interests, or whether this factor is solely concerned with the forum where the lawsuit was filed.").
Under the first view, the Court need "ask only if there is an identifiable local interest in the controversy, not whether another forum also has an interest." Tuazon, 433 F.3d at 1182. Conversely, under the latter view, the Court should balance the foreign forum's interest in the litigation with the domestic forum's. See Lueck, 236 F.3d at 1147 (comparing effects on litigation in New Zealand and Arizona).
a. Local Interest Only
Assessing the local interests under the first view, California clearly "has a strong interest in ensuring the welfare of its residents, U.S. citizens and non-citizens alike." Tuazon, 433 F.3d at 1182 (citing Piper Aircraft, 454 U.S. at 257). Given this, it is likely that California courts have an identifiable interest in the litigation, which can justify proceeding in spite of the other public factors discussed below. Carijano, 643 F.3d at 1232.
At least one California court, however, has found that, on similar circumstances in this case -- a California resident suing a foreign company in California for an automobile accident that occurred in a foreign jurisdiction -- that the mix of private and public factors still favored granting a motion on forum non conveniens grounds. See Girard v. Hilton Int'l Co., 2003 WL 22346401 (Cal. App. Oct. 15, 2003) (unpublished).
b. Balancing of Local Interests
Here, California residents are suing defendants mostly composed of foreign companies and individuals, as well as American companies, over conduct that occurred in Mexico. Mexico, therefore, also has a substantial interest in this case, as "Mexico has an interest in holding businesses operating in Mexico accountable and insuring that foreign tourists are treated fairly." Starwood Hotels & Resorts, 2007 WL 1991163, at *9. Given that the core of the Plaintiffs' case are their claims of negligence, Mexico likely has a stronger interest, on balance, in this case. Id.
But because Ninth Circuit law is unclear whether the Court should consider only California's interest or if the Court should compare California and Mexico's interests, the Court can only say that this factor is neutral.
2. The Court's Familiarity With the Governing Law
Both parties appeared to agree that Mexican law will apply as it relates to Plaintiffs' negligence claims, as the applicability of Mexican law was discussed in Motion and the Opposition. (Mot. at 21-22 (discussing applicability of Mexican law); Opp'n at 24-25 (discussing how Mexican law is analogous to California law)). At the hearing, however, Plaintiffs' counsel noted they did not concede that Mexican law would apply to Plaintiffs' negligence claims.
Plaintiffs also state that the Court is familiar in applying California law to their misrepresentation claims. (Opp'n at 25.) Defendants do not dispute this.
"The mere likelihood or possibility that foreign law would apply weighs in favor of dismissal." Madrid, 893 F. Supp. 2d 1020, 1040 (citing Lueck, 236 F.3d at 1148 n. 6 ("[B]ecause New Zealand law is likely to apply in this suit, the choice of law determination weighs in favor of dismissal.")). On the other hand, "a finding that foreign law applies does not mandate dismissal." Taiwan Straits, 331 F. Supp. 2d at 1206 (citing In re Disaster at Riyadh Airport, Saudi Arabia, on Aug. 19, 1980, 540 F. Supp. 1141, 1153 (D.D.C. 1982)).
Here, this factor weighs only slightly in favor of dismissal. Plaintiffs argue the Mexican Vehicle Code provisions that would be at issue in their negligence claims are analogous to the California Vehicle Code. (Opp'n at 24.) Even if this were so, the Court is unfamiliar with the Mexican Vehicle Code; there is no way of telling, at this point, the breadth of possible statutes that could be implicated during the litigation. And while the Court does not take issue with Plaintiffs' assertion that federal courts routinely apply foreign law (see id.), this factor still weighs in favor of dismissal.
3. Burden on Local Courts and Juries, Congestion in the Court, and the Costs of Resolving a Dispute Unrelated to a Particular Forum
This factor also favors dismissal. Neither party devoted much space in their papers addressing this factor. Defendants maintain this factor carries little weight in any event. (Opp'n at 25 (citing Gates Learjet, 743 F.2d at 1337 ("The real issue is not whether a dismissal will reduce a court's congestion but whether a trial may be speedier in another court because of its less crowded docket.")).)
Even with no information presented by either party concerning the ability of Mexican or American courts to resolve this case, the alleged negligence occurred outside the United States, and was committed by foreign citizens. Hearing the case in this Court will unfairly burden California jurors, requiring them to hear a case in which only connection to California relating to the central claims in the case, i.e., the negligence claims, is the citizenship of the Plaintiffs.
Thus, in analyzing the public interest factors, most of the factors counsel in favor of granting the Motion, including the Court's lack of familiarity with the governing laws of Mexico and the burden this litigation would place on California jurors. The factor concerning the local interest in the lawsuit, the analysis of which is uncertain under current Ninth Circuit law, is neutral, as are the remaining factors unaddressed by the parties. On the whole, however, the public interest factors favor dismissal.
In finding that the Motion should be granted, the Court recognizes that, as United States citizens bringing suit in their local forum, Plaintiffs' choice of forum is entitled to great deference. Furthermore, the Court does not take lightly the conclusion that United States citizens will be deprived of their ability to litigate in a United States court of their choosing. But the facts of this case typify the rare instance in which a plaintiff's claims are too attenuated to maintain their action in the United States and that such claims are so vexatious and oppressive as to be out of proportion with the convenience of the Plaintiffs.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS the Motion and dismisses this action for forum non conveniens. The pending Motion for Protective Order Staying Discovery (Doc. No. 27) is DENIED as MOOT.
The Court imposes the following conditions on this dismissal:
(1) Defendants agree to submit to the jurisdiction of a Mexican court if this action is filed by Plaintiffs there;
(2) Defendants agree to toll days any applicable statute of limitations that may bar Plaintiffs' claims in Mexico for 120 days from the date the mandate is issued in any appeal of this Court's order of dismissal, or if no appeal is taken from this Order, for 120 days from the date of the judgment in this action;
(3) Defendants agree to satisfy any judgment obtained in Mexico, subject to applicable appellate rights; and
(4) Defendants agree to produce, upon reasonable notice, all witnesses employed by the Defendants who are reasonably necessary for purposes of discovery and trial, with any disputes regarding attendance of any such witnesses to be resolved in the Mexican court(s) where the action is pending.
At the hearing on this Motion, counsel for Defendants agreed on the record, on behalf of their respective clients, to each of these conditions.
IT IS SO ORDERED. Dated: January 10, 2014.
/s/_________
VIRGINIA A. PHILLIPS
United States District Judge