     Case: 13-20230      Document: 00512638369         Page: 1    Date Filed: 05/21/2014




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

                                                                                   FILED
                                                                                 May 21, 2014
                                      No. 13-20230
                                                                                Lyle W. Cayce
                                                                                     Clerk
COTEMAR S.A. DE C.V.; EXETER MARINE LIMITED; OCEAN OIL
CONSTRUCTION AND SERVICES S.A.R.L.,

                                                 Plaintiffs - Appellants
v.

HORNBECK OFFSHORE SERVICES, L.L.C.; OSV HOS BEAUFORT, IN
REM; HORNBECK OFFSHORE SERVICES, INCORPORATED;
HORNBECK OFFSHORE OPERATORS, L.L.C.,

                                                 Defendants - Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:11-CV-4409


Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this case, the district court dismissed Appellants’ maritime tort action
based on the doctrine of forum non conveniens. Pursuant to Appellees’ motion,
the district court concluded that the Mexican judicial system constitutes an
available and adequate forum for this litigation. Then, based on its assessment
of the relevant private interest and public interest factors, the district court
also concluded that the Mexican judicial system would be a more convenient


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 13-20230      Document: 00512638369         Page: 2    Date Filed: 05/21/2014



                                      No. 13-20230
forum for Appellants’ lawsuit.            Accordingly, the district court granted
Appellees’ motion to dismiss.
       This appeal followed. As explained below, we conclude that the district
court’s balancing of the private interest and public interest factors did not
constitute an abuse of the district court’s discretion. We nonetheless remand
this case on two narrow grounds. First, the district court must clarify its
order’s return jurisdiction clause with respect to the possibility that
Appellants’ access to relief may now be time-barred in Mexico. Second, we
direct the district court to consider whether any part of the forum non
conveniens analysis in this case is altered by the recent seizure of Appellees’
vessel in the Eastern District of Louisiana.
                                             I.
       On June 24, 2011, Appellants’ vessel, the SSV Iolair (“the Iolair”), was
struck by Appellees’ vessel, the OSV HOS Beaufort (“the Beaufort”),
approximately forty-four miles off the coast of Mexico in the Bay of Campeche. 1
In October 2011 and April 2012, Appellees preemptively filed two petitions in
the Mexican courts to limit their liability for damage to the Beaufort.
According to Appellants, certain Appellants were named and properly served
with process in the Mexican limitation proceedings, while other Appellants
were not named and properly served with process. The record reflects that
Appellants have not yet participated in the limitation proceedings or in any
other Mexican judicial proceedings in relation to the events of this case.
       On December 15, 2011, Appellants filed a complaint against Appellees



       1The Iolair was flagged in the Marshall Islands, and Appellants are companies located
in the Bahamas, Luxembourg, and Mexico. The Beaufort was flagged in the United States,
and Appellees are all companies located in the United States who conduct business in Mexico
through subsidiaries or related companies. At the time of the accident, both the Iolair and
the Beaufort were performing services for Mexico’s state-owned oil company, Petróleos
Mexicanos or “Pemex.”
                                             2
     Case: 13-20230       Document: 00512638369         Page: 3    Date Filed: 05/21/2014



                                      No. 13-20230
in the district court. Appellants raised a number of claims based on theories
of negligence, gross negligence, and the unseaworthiness of the Beaufort. On
May 11, 2012, Appellees filed a motion to dismiss on the basis of forum non
conveniens. The district court granted this motion on March 29, 2013, after
concluding that litigation would be more convenient in a Mexican forum. As
the district court explained, Appellants’ contributory negligence is a disputed
issue in this case. Accordingly, the district court reasoned that the testimony
of Mexican regulatory authorities and investigators, as well as the
documentary records within the control of those entities, will be relevant to the
issue of Appellants’ contributory negligence.
       Appellants then brought this appeal. Meanwhile, shortly before oral
argument, Appellants seized the Beaufort pursuant to a warrant of arrest
issued by the United States District Court for the Eastern District of
Louisiana. On April 3, 2014, the district judge in that case denied Appellees’
motion to vacate the arrest. Accordingly, while Appellants’ original lawsuit
against Appellees in the Southern District of Texas has now been dismissed,
Appellants’ action in rem against Appellees’ vessel is still ongoing in the
Eastern District of Louisiana.
                                             II.
       This court will reverse the grant or denial of a motion to dismiss on the
basis of forum non conveniens only where there has been a “clear abuse of
discretion.” 2 Where a district court has reasonably balanced the relevant
private interest and public interest factors, the district court’s decision
“deserves substantial deference.” 3 Although a plaintiff’s choice of forum is



       2 Gonzalez v. Chrysler Corp., 301 F.3d 377, 379 (5th Cir. 2002); Baumgart v. Fairchild
Aircraft Corp., 981 F.2d 824, 835 (5th Cir. 1993).
       3 DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 794 (5th Cir. 2007) (quoting

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)); see also Van Cauwenberghe v. Biard,
                                             3
     Case: 13-20230        Document: 00512638369          Page: 4     Date Filed: 05/21/2014



                                        No. 13-20230
entitled to a presumption in favor of convenience, the presumption applies with
less force “[w]hen the plaintiff’s choice is not its home forum.” 4
       As we explained in Gonzalez v. Chrysler Corp., 301 F.3d 377, 379-80 (5th
Cir. 2002), the forum non conveniens inquiry consists of four steps that must
be considered in sequence:
       First, the district court must assess whether an alternative forum
       is available. An alternative forum is available if the entire case
       and all parties can come within the jurisdiction of that forum.
       Second, the district court must decide if the alternative forum is
       adequate. An alternative forum is adequate if the parties will not
       be deprived of all remedies or treated unfairly, even though they
       may not enjoy the same benefits as they might receive in an
       American court. If the district court decides that an alternative
       forum is both available and adequate, it next must weigh various
       private interest factors. If consideration of these private interest
       factors counsels against dismissal, the district court moves to the
       fourth consideration in the analysis. At this stage, the district
       court must weigh numerous public interest factors. If these factors
       weigh in the moving party’s favor, the district court may dismiss
       the case. 5

As the quoted passage indicates, and as is further clarified by Empresa Lineas
Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 371-
72 (5th Cir. 1992), the “availability and adequacy” of the alternative forum are
“threshold requirements” that must be established before the private interest
factors and public interest factors are considered.




486 U.S. 517, 529 (1988) (“[T]he district court is accorded substantial flexibility in evaluating
a forum non conveniens motion . . . .”).
        4 Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007)

(citing Piper Aircraft Co., 454 U.S. at 255-56); see also Empresa Lineas Maritimas Argentinas,
S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 373 (5th Cir. 1992) (“When a plaintiff
chooses a foreign forum for its claims, courts are reluctant to assume that convenience
motivated that choice.”).
        5 Gonzalez, 301 F.3d at 379-80 (internal citations and quotation marks omitted).

                                               4
     Case: 13-20230       Document: 00512638369          Page: 5     Date Filed: 05/21/2014



                                       No. 13-20230
                                             III.
       When considering the threshold requirements that an alternative forum
must be adequate and available, district courts are obligated “to ensure that
plaintiffs can reinstate suits in American courts if the defendants obstruct
jurisdiction in the alternative forum.” 6 Accordingly, when a district court
dismisses a case on the basis of forum non conveniens, the “failure to include a
return jurisdiction clause . . . constitutes a per se abuse of discretion.” 7 In the
present case, the district court did include a return jurisdiction clause, but
failed to address the parties’ evidence in the record regarding this litigation’s
potential untimeliness in the Mexican forum. As explained below, we now
remand so that the district court may consider that issue.
       Where litigation in a particular forum has become time-barred, that
forum is no longer an available forum for the purposes of a forum non
conveniens analysis. As we observed in Veba-Chemie A.G. v. M/V Getafix, 711
F.2d 1243, 1248 (5th Cir. 1983), it would be “exceedingly harsh” to dismiss for
forum non conveniens “if no other forum is available to plaintiff at the time of
dismissal” due to the expiration of a time limit in a foreign jurisdiction. In the
same decision, however, we also acknowledged that “if the plaintiff’s plight is
of his own making—for instance, if the alternative forum was no longer
available at the time of dismissal as a result of the deliberate choice of an
inconvenient forum—the court would be permitted to disregard this
consideration and dismiss.” 8 Other courts have applied the same analysis. 9


       6 Baris v. Sulpicio, 932 F.2d 1540, 1551 (5th Cir. 1991).
       7 Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 675 (5th Cir. 2003) (quoting
Robinson v. TCI/US W. Commc’ns Inc., 117 F.3d 900, 907-08 (5th Cir. 1997)).
       8 Veba-Chemie, 711 F.2d at 1248 n.10.
       9 Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d

189, 203 (4th Cir. 2009) (concluding that “knowingly and purposefully opt[ing] to miss the
deadline for filing . . . claims in [China]” would defeat the untimeliness argument with respect
to the Chinese court’s availability as an alternative forum); Castillo v. Shipping Corp. of
                                               5
     Case: 13-20230       Document: 00512638369         Page: 6     Date Filed: 05/21/2014



                                       No. 13-20230
       In the present case, although the record suggests that untimeliness may
become a significant issue in the Mexican judicial proceedings, the district
court did not account for this possibility in its return jurisdiction clause.
Instead, the district court simply stated that it would “condition . . . dismissal
on the [Appellees’] stipulation that they will fully submit to jurisdiction in
Mexico for purposes of this dispute.”             The district court then instructed
Appellees to “waiv[e] any jurisdictional defenses they might normally possess.”
Based on the ambiguous record, however, it is unclear whether this instruction
accords with our reasoning in Veba-Chemie, 711 F.2d at 1248 n.10.
       One of the affidavits proffered by Appellants in the proceedings before
the district court was authored by Mr. Jose-Davis Enriquez-Rosas, an expert
on Mexican law. According to the affidavit, “the opportunity for Cotemar, S.A.
de C.V. to appear in the limitation proceedings has already lapsed,” although
the affidavit does not mention the other two Appellants. We also observe that
the record contains translations of Mexican court documents suggesting that
ordinary creditors must “present their claims for review within a period of
thirty working days” and that “claimants residing abroad . . . shall be given a
deadline of sixty working days to present their claims.” It therefore appears
possible that one or more Appellants no longer can obtain relief against
Appellees in the Mexican courts based on untimeliness. 10                     Additionally,
although the district court has instructed Appellees to “submit fully” to the



India, 606 F. Supp. 497, 504 (S.D.N.Y. 1985) (“It would be a strange world if a litigant could
‘bootstrap’ himself into a New York court by missing the statute of limitations in the proper
forum.”).
        10 On the other hand, we also note Appellants’ own contention that “[t]he Mexican

Limitation Proceeding is not a lawsuit,” perhaps implying that a separate proceeding must
be instituted in Mexico to prove liability and damages. The time bar identified by Mr.
Enriquez-Rosas with respect to the limitation proceeding therefore may not have any effect
on such a proceeding. It may also be that the time bar affects only those Appellants who were
properly served in the limitation proceedings.
                                              6
     Case: 13-20230       Document: 00512638369         Page: 7    Date Filed: 05/21/2014



                                      No. 13-20230
Mexican judicial proceedings, there is no indication of whether this instruction
would also require Appellees to waive any legitimate defenses relating to
untimeliness that Appellees may have acquired based on Appellants’ lack of
diligence under Veba-Chemie, 711 F.2d at 1248 n.10.
       On remand, we direct the district court to make findings regarding the
availability of the Mexican courts with respect to the untimeliness issue. The
district court must then revise its return jurisdiction clause in accordance with
our decision in Veba-Chemie, 711 F.2d at 1248 n.10. The district court should
also consider Appellants’ argument regarding the reasonableness of bringing
their claims first in the United States, rather than simultaneously submitting
to jurisdiction in Mexico initially by entering an appearance in the limitation
proceedings. If access to relief in the Mexican courts has become time-barred
for reasons not of Appellants’ “own making,” then the Mexican courts are no
longer an available alternative forum. If such is the case, then Appellants’
lawsuit must proceed in the United States. On the other hand, if Appellants
may still pursue relief in the Mexican courts, or if any time bar now in effect
has resulted from Appellants’ “deliberate choice,” then the district court may
“disregard this consideration and dismiss.”
                                            IV.
       We reject each of Appellants’ other arguments regarding the adequacy
of the Mexican courts as a forum 11 and the district court’s evaluation of the
private interest and public interest factors. Most notably, Appellants are
wrong to suggest, based on our decision in Baris v. Sulpicio, 932 F.2d 1540,
1550 n.14 (5th Cir. 1991), that Appellees failed to provide sufficient proof for


       11In particular, with respect to the adequacy of the remedies available in the Mexican
courts, Appellees argue that the amount of damages available in the Mexican courts is
extremely low in comparison to the amount of damages available in the United States. We
have rejected this argument in several previous cases, however. See Gonzalez, 301 F.3d at
381-83; Vasquez, 325 F.3d at 672.
                                             7
     Case: 13-20230       Document: 00512638369          Page: 8     Date Filed: 05/21/2014



                                       No. 13-20230
the district court to believe that litigation in Mexico would improve access to
witnesses and evidence. As explained in Empresa Lineas, 955 F.2d at 371-72,
“the Baris affidavit requirement” is necessary only for “determining forum
availability and adequacy” and does not apply to “all elements of defendant’s
burden.” Rather, when the district court is faced with balancing the private
interest and public interest factors, a defendant may successfully invoke forum
non conveniens simply by producing “enough information to enable the District
Court to balance the parties’ interests.” 12
       Here, the materials before the district court included documentary
evidence showing that Mexican officials had investigated the events of the
present case. It was reasonable for the district court to conclude that these
investigators’ testimony would be relevant to adjudicating Appellants’
contributory negligence. Contrary to Appellants’ suggestions, the district court
need not assess whether Appellees’ arguments regarding contributory
negligence are likely to prevail. Accordingly, the district court did not abuse
its discretion by concluding that the private interest factors weighed in favor
of litigating in Mexico. 13 We also find that the district court did not abuse its
discretion with respect to evaluating the public interest factors.
       We observe, however, that Appellants’ seizure of Appellees’ vessel in the
Eastern District of Louisiana may constitute a supervening change of
circumstances with respect to balancing the private interest and public
interest factors. As we observed in Concerned Citizens of Vicksburg v. Sills,


       12 Empresa Lineas, 955 F.2d at 372 (“[The imposition of a blanket rule requiring
affidavit evidence as to [the private interest and public interest factors] would invite
protracted discovery in every case, and would tend to inflict an impossible burden on
defendants who are seeking dismissal for the very reason that they cannot compel evidence,
including the evidence necessary to argue for dismissal.”) (citing Piper Aircraft Co., 454 U.S.
at 258); see also Taylor v. Tesco Corp. (US), 754 F. Supp. 2d 840, 843 n.2 (E.D. La. 2010).
       13 See Van Cauwenberghe, 486 U.S. at 529; DTEX, LLC, 508 F.3d at 794 (citing Piper

Aircraft Co., 454 U.S. at 257).
                                              8
     Case: 13-20230      Document: 00512638369         Page: 9    Date Filed: 05/21/2014



                                      No. 13-20230
567 F.2d 646, 649-50 (5th Cir. 1978), and reaffirmed more recently in
unpublished decisions, 14 supervening changes of circumstances must be taken
into account even where they materialize during the pendency of an appeal:
       [A]n appellate court is obligated to take notice of changes in fact or
       law occurring during the pendency of a case on appeal which would
       make a lower court’s decision, though perhaps correct at the time
       of its entry, operate to deny litigants substantial justice. . . . [T]he
       preferred procedure is to remand to give the district court an
       opportunity to pass on the changed circumstances. 15

In this regard, Appellants now suggest that the seizure of the vessel might
potentially oblige the parties to litigate one action in Louisiana and another in
Mexico at the same time.           Without prejudging the result, therefore, we
conclude that the district court should determine whether simultaneously
pursuing an in rem action against Appellees’ vessel in the Eastern District of
Louisiana would render litigation in Mexico less convenient based on one or
more of the private interest and public interest factors.
                                            V.
       Accordingly, as set forth above, we AFFIRM in part and VACATE in part
the judgment of the district court conditionally granting Appellees’ motion to
dismiss for forum non conveniens. We REMAND for further proceedings in
accordance with this opinion.
       AFFIRMED in part, VACATED in part, and REMANDED.




       14Illusions-Dallas Private Club Inc. v. Steen, 320 F. App’x 274, 275 (5th Cir. 2009);
Vodicka v. Peruna Properties Inc., 286 F. App’x 160, 162 (5th Cir. 2008).
      15 Sills, 567 F.2d at 649-50 (internal citations and quotation marks omitted).

                                             9
