                                                                                       ACCEPTED
                                                                                   01-15-00989-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              12/3/2015 1:47:58 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK


                       No. 01-15-00989-CV
           _________________________________________
                                                                  FILED IN
                                                           1st COURT OF APPEALS
                            IN THE                             HOUSTON, TEXAS
                   FIRST COURT OF APPEALS                  12/3/2015 1:47:58 PM
                           at Houston                      CHRISTOPHER A. PRINE
                                                                   Clerk
        ______________________________________________

                    ARNOLD & ITKIN, LLP, ET AL.
                           Petitioners,

                                    v.

          MARIA SANTOS LOPEZ DOMINGUEZ, ET AL.
                          Respondents,
        ______________________________________________

                 Trial Court Cause Number 2015-28543
       From the 11th Judicial District Court of Harris County, Texas
        ______________________________________________

RESPONDENTS’ MOTION TO DISMISS FOR LACK OF APPELLATE
     JURISDICTION AND RESPONSE TO PETITIONERS’
         PETITION FOR PERMISSION TO APPEAL
      ______________________________________________

  THE KASSAB LAW FIRM                      DOHERTY✯WAGNER
 LANCE CHRISTOPHER KASSAB                       BRETT WAGNER
  Texas State Bar No. 00794070           Texas State Bar No. 20654270
lck@TexasLegalMalpractice.com                brett@dwlawyers.com
      DAVID ERIC KASSAB                      LARRY JOE DOHERTY
  Texas State Bar No. 24071351           Texas State Bar No. 05950000
dek@TexasLegalMalpractice.com                larry@dwlawyers.com
         1420 Alabama                13810 Champion Forest Drive, Suite 225
     Houston, Texas 77004                   Houston, Texas 77069
     Phone (713) 522-7400                    Phone (281) 583-8700
    Facsimile (713) 522-7410               Facsimile (281) 583-8701

                  ATTORNEYS FOR RESPONDENTS
                 IDENTITY OF PARTIES AND COUNSEL

      The following is a list of all parties, and the names and addresses of all

counsel.

Defendants-Petitioners:          Beck Redden LLP, Russell Post, Fields
                                 Alexander, Jas Brar, Arnold & Itkin, LLP, Kurt
                                 Arnold, Cory Itkin, Jason Itkin, Albritton Law
                                 Firm and Eric Albritton

Petitioners’ Counsel             Reagan W. Simpson
(Trial Court and on Appeal):     YETTER COLEMAN LLP
                                 909 Fannin, Suite 3600
                                 Houston, Texas 77010
                                 Tel. (713) 632-8000
                                 Fax (713) 632-8002
                                 Counsel for Defendants-Petitioners
                                 Beck Redden LLP, Russell Post, Fields
                                 Alexander and Jas Brar

                                 Jeremy L. Doyle
                                 James Schuelke
                                 Reynolds Frizzell LLP
                                 1100 Louisiana, Suite 3500
                                 Houston, Texas 77002
                                 Counsel for Defendants-Petitioners
                                 Arnold & Itkin, L.L.P., Kurt Arnold,
                                 Cory Itkin and Jason Itkin

                                 Sam Houston
                                 Scott, Clawater & Houston L.L.P.
                                 2777 Allen Parkway, 7th Floor
                                 Houston, Texas 77019-2133
                                 Counsel for Defendants-Petitioners
                                 Arnold & Itkin, L.L.P., Kurt Arnold,
                                 Cory Itkin and Jason Itkin




                                       I
                         John Black
                         Daly & Black, P.C.
                         2211 Norfolk, Suite 800
                         Houston, Texas 77008
                         Counsel for Defendants-Petitioners
                         Arnold & Itkin, L.L.P., Kurt Arnold,
                         Cory Itkin and Jason Itkin

                         Billy Shepherd
                         Allison Standish Miller
                         Shepherd Prewett Miller PLLC
                         770 South Post Oak Lane, Suite 420
                         Houston, Texas 77056
                         Counsel for Defendants-Petitioners
                         Albritton Law Firm and Eric Albritton


Plaintiffs-Respondents   Maria Santos Lopez Dominguez, Individually
                         and as next friend of Karen Marien Andrade
                         Lopez, Mairet Sameli Andrade Lopez and Imar
                         Gerardine Andrade Lopez on behalf of the
                         Estate of Omar Gerardo Andrade Zarate;
                         Gabriel Gonzalez Toral; Jorge Arturo Jimenez
                         Rangel; Antonio Montero Hernandez; Juan
                         Antonio Palafox Navarrete; Leonel Fernandez
                         Rivera; Fernando Augusto Cervera Ramirez;
                         Libia Arredondo Chavez; individually and as
                         Next Friend of Jorge Ricardo Barrancos
                         Arredondo and Pedro Santiago Barrancos
                         Arredondo on behalf of the Estate of Jorge
                         Alonso Barrancos Dzul; Pastor Garcia Ocana;
                         Jorge Guzman Martinez; Aldo Antonio Lopez
                         Lorenzo and Monica Lopez; Miguel Cobos
                         Salas, Jose Pedro Cobos Quiroz, Oscar Romero
                         Ortega, Sergio Rosado Cortes, Sergio Solis
                         Ponce, Martin Zuñiga Salazar, Josefa Santos
                         Castellano, Individually and as Representative
                         of the Estate of Benito De Los Santos, Joel
                         Santos Ventura, Individually and as

                              II
                              Representative of the Estate of Benito De Los
                              Santos, Aleli Jiminez Perez, Individually and
                              as Representative of the Estate of Aroer May
                              Jimenez,     Tayde    Maria     Pozo     Roble,
                              Individually and as Representative of the Estate
                              of Leandro Manuel Hernandez Pozo, Miguel
                              Hernandez Chan, Individually and as
                              Representative of the Estate of Leandro
                              Manuel Pozo, and Eudocio Alejandro Jacome
                              Gomez

Respondents’ Counsel          Lance Christopher Kassab
(Trial Court and on Appeal)   David Eric Kassab
                              THE KASSAB LAW FIRM
                              1420 Alabama
                              Houston, Texas 77004

                              Brett Wagner
                              Larry Joe Doherty
                              Ryan W. Smith
                              DOHERTY✯WAGNER
                              13810 Champion Forest Drive, Suite 225
                              Houston, Texas 77069




                                   III
                                         TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ……………………………………....I
TABLE OF CONTENTS ....................................................................................... .IV
INDEX OF AUTHORITIES..................................................................................... V
PREFACE ..................................................................................................................1
RECORD REFERENCES………………………………………………………….1
STATEMENT OF THE CASE ..................................................................................2
STATEMENT OF FACTS ........................................................................................2
  A. FACTUAL BACKGROUND ...................................................................................2
  B. PROCEDURAL BACKGROUND ............................................................................7
ARGUMENT ...........................................................................................................10
  A. THE PETITION SHOULD BE DENIED BECAUSE THE LAWYERS HAVE
     ALSO FILED A MANDAMUS………………………………..……………....... 10
  B. THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT
         DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS CONTROLLING
         TO THIS COURT ……………………………...……………….……….….... 11
  C.     THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE APPEALED
         IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH THERE IS A
         SUBSTANTIAL DIFFERENCE OF OPINION …………………………..……….... 12
  D.     THE PETITION SHOULD BE DENIED BECAUSE AN IMMEDIATE APPEAL
         WILL NOT MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE
         LITIGATION BUT WILL LEAD TO JUDICIAL INEFFICIENCY ..................................17

CONCLUSION & PRAYER ...................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22

VERIFICATION ......................................... ATTACHED TO END OF RESPONSE

APPENDIX ................................................. ATTACHED TO END OF RESPONSE




                                                           IV
                                    INDEX OF AUTHORITIES

TEXAS STATE CASES                                                                                     PAGE(S)
Alexander v. Turtur & Assocs.,
        146 S.W.3d 113 (Tex. 2004)……………………………………….…………………….14
America Online, Inc. v. Williams,
        958 S.W.2d 268 (Tex. App. – Houston [14th Dist.] 1997, no pet.)……………..……….17
Bland Indep. Sch. Dist. v. Blue,
        34 S.W.3d 547 (Tex. 2000)………………………………….…………………………….2
Borowski v. Ayers,
        432 S.W.3d 344 (Tex. App.—Waco 2013, no pet.)………………………..…………….15
Diamond Prods. Int’l., Inc. v. Handsel,
        142 S.W.3d 491 (Tex. App.—Houston [14th Dist.] 2004, no pet.)……………….……..15
Fertitta Hospitality, LLC v. O'Balle,
        2014 Tex. App. LEXIS 12141
         (Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.)…………………………………15
Great Am. E & S Ins. Co. v. Lapolla Indus., Inc.,
        2014 Tex. App. LEXIS 6746, 2014 WL 2895770
         (Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.)…….……………..12
Gulf Coast Asphalt Co., L.L.C. v. Lloyd,
        457 S.W.3d 539 (Tex. App.—Houston [14th] 2015, no pet.)……………12, 13, 16, 17, 19
Gulley v. State Farm Lloyds,
        350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.)…..……………………....10, 12
In re Estate of Fisher,
        421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.) ………...…...…….……….10, 19
King-A Corp. v. Wehling,
        2013 Tex. App. LEXIS 2761
        (Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)………………….…….15
Lehmann v. Har-Con Corp.,
        39 S.W.3d 191 (Tex. 2001)………………………………………………………………13
Texas Animal Health Com’n v. Garza,
        27 S.W.3d 54 (Tex. App.—San Antonio 2000, pet. denied)…………………….………14
Texas Ass’n of Bus. v. Texas Air Control Bd.,
        852 S.W.2d 440 (Tex. 1993)………….…….……………….…………………………….2
Vanderweyst v. Boudreaux,
        2003 Tex. App. LEXIS 8549, 2003 WL 22255833
        (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.))………….….2, 18
Vestalia, Ltd. v. Taylor-Watson,
        2015 Tex. App. LEXIS 6249, 2015 WL 3799505
         (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (mem. op.)……….…..11, 13, 14
Warren v. Weiner,
        2015 Tex. App. LEXIS 8148
         (Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.)..............................................10, 14


                                                        V
TEXAS STATUTES                                                   PAGE(S)
TEX. CIV. PRAC. & REM. CODE § 51.014(a)……………………………..………………………..13
TEX. CIV. PRAC. & REM. CODE. § 51.014(d)…………………………………….....……8, 9, 12, 17
TEX. CIV. PRAC. & REM. CODE § 51.014(f)…………………………………..…………………....1

TEXAS RULES                                                      PAGE(S)
TEX. R. APP. P. 28.3(e)(3). . ......………...……………..……………………………………..…....1
TEX. R. APP. P. 28.3(f) ….………………………..…………………………………………..…....1
TEX. R. APP. P. 28.3, cmt….……....……………..…………………………….……………..…....1




                                   VI
                                    PREFACE
      Texas Rule of Appellate Procedure 28.3(e)(3) is clear that a petition for

permissive appeal should “argue clearly and concisely why the order to be

appealed involves a controlling question of law as to which there is a substantial

ground for difference of opinion and how an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” TEX. R. APP. P.

28.3(e)(3). Petitioners-Defendants’ Petition for Permission to Appeal Interlocutory

Order (“Petition”) spends one single page attempting to comply with this rule. See

Pet. Mot., at p. 11. In the remaining twenty-three (23) pages of the Petition,

Petitioner-Defendants argue the merits of the trial court’s decision. To this extent,

the Petition is defective and Respondents-Plaintiffs move to strike these irrelevant

portions.

      Accordingly, Respondents-Plaintiffs’ focus this Response on why a

permissive appeal is inappropriate. TEX. R. APP. P. 28.3(f). In the event the Court

grants a permissive appeal, Respondents-Plaintiffs will address the merits of the

trial court’s decision in further appellate briefing. See TEX. R. APP. P. 28.3, cmt.;

See also TEX. CIV. PRAC. & REM. CODE § 51.014(f).

                            RECORD REFERENCES

                Source                                   Citation Format
Petitioners’ Appendix Tabs                   Pet. Tab [number]
Respondents’ Appendix Tabs                   Resp. Tab [number]

                                         1
                              STATEMENT OF FACTS
       The statement of facts will be taken primarily from Respondents-Plaintiffs’

Second Amended Petition because this was the live pleading before the trial court

when it ruled on Petitioners’ pleas to the jurisdiction.1 When necessary, the facts

will also be supported by additional evidence. See Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). The statements of fact as set forth in

Respondents’ pleadings (and as set forth herein) must be liberally construed in

Respondents’ favor and taken as true. See Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); See also Vanderweyst v.

Boudreaux, No. 01-02-00928-CV, 2003 Tex. App. LEXIS 8549, 2003 WL

22255833, at *10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied)

(mem. op.).

       A.     FACTUAL BACKGROUND.

       Respondents-Plaintiffs Maria Santos Lopez Dominguez, et al. (the

“Clients”) are offshore oilfield workers (or the surviving representatives of oil field

workers) who were working on the mobile drilling rig, Usumacinta located in the

Bay of Campeche, Mexico and who were injured or killed as a result of the




1
  For reasons unknown, Petitioners improperly attached Respondents’ Third Amended Petition
filed on September 25, 2013 to their Petition which was filed after the trial court denied the
subject pleas on September 17, 2015. See Resp. Tab 4.
                                              2
underlying defendants’ acts or omissions occurring on or about October 23, 2007.

Resp. Tab 1, p. 4-5; Pet. Tab 5, p. 2-3.

      One or more of the Clients were improperly solicited to retain Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin (“Itkin”) to represent them in

claims against the parties responsible for causing the injuries or death. Resp. Tab 1,

p. 5. Eventually, however, all Clients retained Itkin to represent them in their

claims. Id. Eric Albritton and the Albritton Law Firm (“Albritton”) were enlisted

by Itkin as local counsel. Id. Later, Beck Redden, LLP, Russell Post, Fields

Alexander and Jas Brar (“Beck”) also represented the Clients in seeking

reinstatement of the Clients’ claims in the United States. Id. Itkin, Albritton and

Beck will be referred to collectively as the “Lawyers.”

      In October of 2008, the Itkin-Albritton, on behalf of the Clients, filed

various lawsuits in the United States Federal District Court for the Eastern District

of Texas (the “District Court”) seeking actual and punitive damages against a

number of American individuals and companies (the “underlying lawsuit”). Resp.

Tab 1, p. 6; Pet. Tab 7, p. 2. Itkin-Albritton alleged claims based on Texas state

law, general federal or international maritime law, including the Jones Act, and

Mexican law. Resp. Tab 1, p. 6-7.

      The District Court dismissed the Clients’ state law claims with prejudice,

finding they were preempted by the Jones Act. Resp. Tab 1, p. 7. In addition, the

                                           3
District Court dismissed the Clients’ federal maritime claims because the Lawyers

negligently “failed to allege that there was no available remedy in Mexico, as

required to pursue a federal maritime claim under the Jones Act.” Pet. Tab 5, p. 5.

Thus, the Clients allege that, due to the negligence of the Lawyers, the only claims

remaining were the Clients’ Mexican claims for civil liability and moral damages.

Resp. Tab 1, p. 7.

      The District Court, on September 15, 2010, consolidated the underlying

lawsuit with six other lawsuits filed by other plaintiffs and a number of other law

firms for the purpose of briefing and deciding a forum non conveniens issue raised

by underlying defendants common to each case. Id. In responding to the forum non

conveniens motions, the Lawyers failed to argue and submit evidence establishing

that Mexico was not an available or adequate forum to litigate the underlying case.

Id. at p. 7-8. The Clients allege that, had the appropriate substantive arguments

been properly asserted by the Lawyers in the response to the forum non conveniens

motion, the motion would not have been granted by the District Court thereby

allowing the Clients’ claims to proceed forward in the chosen forum. Id.

      On March 10, 2011, the District Court conditionally granted the forum non

conveniens motion. Id. at 8-9. The order acknowledged the underlying defendants’

agreement to waive any statute of limitations defense that they did not possess as

of the date the underlying case was filed. Id.; See also Pet. Tab 5, p. 27. The order

                                         4
also carried with it a return jurisdiction clause stating, “[s]hould the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than

Plaintiffs’ refusal to pursue an action or to comply with the procedural

requirements of Mexican courts, this Court may reassert jurisdiction upon

timely notification of the same.” Pet. Tab 5, p. 27 (emphasis added). The Clients

allege that the Lawyers’ negligent failure to appeal the May 4, 2011 order was one

proximate cause of damage. Resp. Tab 1, p. 11.

      Between February and May of 2013, the Lawyers refiled in Mexico only

eleven (11) of the more than eighty (80) original cases. Id. at p. 9. Due to the

Lawyers’ failure to comply with procedural requirements, the Mexican courts

immediately rejected jurisdiction of the cases. Id. at p. 9-10; See also Pet. Tab 7, p.

4-5. Five months later on October 18, 2013, the Lawyers filed a motion to reinstate

the Clients’ underlying case in District Court, arguing Mexico would not accept

jurisdiction over the cases. Resp. Tab 1, p. 10.

      The District Court denied the Lawyers’ attempt to re-file the cases in Texas

and exposed their lack of good faith in great detail, noting the Lawyers “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Pet. Tab 7, p.

9. Judge Crone continued, “Because counsel made no attempt to litigate those

cases in Mexico in compliance with the court’s Memorandum and Order, there is

no basis upon which to reopen them here.” Id. Therefore, with regard to all of the

                                          5
underlying cases, save and except the eleven that were refiled in Mexico, the

Clients allege the Lawyers grossly failed to litigate diligently and in good faith

thereby invalidating the waiver of the statute of limitations. Resp. Tab 1, p. 11. The

Clients also allege the waivers were invalid under both Texas and Mexican law

because they were indefinite and not specific. Id. Additionally, at this late date, any

new filing in Mexico would be untimely.

      With regard to the eleven cases that were refiled in Mexico, the District

Court found that the Lawyers simply “did not prosecute the cases in good faith.”

Pet. Tab 7, p. 9. Thus, on May 14, 2014, as a direct and proximate result of the

Lawyers’ negligence, the District Court dismissed the Clients’ underlying lawsuits.

Id. at p. 11-15. Because the Lawyers failed to follow the District Court’s

reinstatement requirements, the District Court placed an additional burden on the

Clients, stating the Clients could “not seek reinstatement in [the District Court]

unless and until they have pursued their claims in Mexico with diligence and good

faith, including seeking final appellate review of any Mexican dismissal

order.” Id. at p. 15 (emphasis added).

      Several months after the dismissal, Kurt Arnold sent out deceitful

withdrawal letters wherein he attempted to conceal and downplay the significance

of the Lawyers’ malfeasance and abandoning the Clients. Resp. Tab 2, Ex. D. The

one bit of truth contained within these letters was Mr. Arnold’s recognition of the

                                          6
unlikelihood of the cases being reinstated in the United States: “I think the chances

of the Court accepting the jurisdiction for these cases even after following all steps

[and refiling the cases in Mexico] is remote.” Resp. Tab 2, Ex. D. This statement

by Mr. Arnold is accurate and comports with the Clients’ allegations (supported by

expert testimony) that any claim now filed in Mexico would be dismissed on

limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to timely refile the cases in Mexico and litigate these cases

diligently and in good faith. Resp. Tab 1, p. 11. Accordingly, the Clients’ pleadings

and the Lawyers’ admissions establish that the waivers and stipulations are of no

consequence at this late date and, as a result, the Clients’ underlying claims are

forever barred in both the United States and Mexico. Id.; See also Resp. Tab 3, at

Ex. A, p. 11-13.

      B.     PROCEDURAL BACKGROUND.

      The Lawyers filed (or joined in) various Pleas to the Jurisdiction, and, in the

Alternative, Pleas in Abatement (the “Pleas”) arguing the underlying case was not

yet concluded and seeking to dismiss or abate this case until the underlying claims

were resolved. The Clients disputed this issue of fact, arguing the underlying

claims were “concluded” and that the Clients underlying claims could not now be

refiled in Mexico due to the Lawyers’ negligence. Resp. Tab 2 and 3. The Clients

also responded by arguing (and proving through expert testimony) that, even if the

                                          7
claims could be refiled in Mexico, the Clients suffered injury when the Lawyers

negligently allowed the Clients’ United States cases to be dismissed on forum non

conveniens grounds as litigating in Mexico hinders the Clients’ ability to pursue

their claims. Resp. Tab 3. On September 17, 2015, the trial court agreed with the

Clients and signed an order simply denying the Lawyers’ Pleas. Resp. Tab 4.

      The Lawyers subsequently filed (or joined in) Motions for Permission to File

Interlocutory Appeals moving the trial court to amend the original order to comply

with the requirements of section 51.014(d) of the Texas Civil Practice & Remedies

Code. The Clients opposed this request. Resp. Tab. 5. At the hearing on the

motion, the trial court noted that its September 17, 2015 Order did not rule on any

controlling question of law, stating: “I agree with you. I am not even sure what the

issues are.” Resp. Tab 5, p. 12. The trial court was very candid in expressing its

concern about the validity of a permissive appeal due to the complexity of the

factual issues involved:

      I kind of doubt also this is the sort of thing they had in mind because
      of the multiplicity of the issues and how complex it is. To say that
      there is some central narrow controlling legal issue that can be
      determined here that is outcome determinative, I think that is wishful
      thinking. I think that is probably the response you are going to get
      from [the court of appeals].

Id. at p. 10. The trial court further expressed that it is not possible to generalize

what the controlling issues are in this case because there are so many issues


                                         8
involved with the Pleas. Id. at p. 12. Nonetheless, the trial court granted the

Lawyers’ request to file a permissive appeal even though it “had [its] doubts” with

regard to the validity of such appeal, stating “[l]et’s see what the court of appeals

thinks if [the Lawyers] are correct or not.” Id. Thus, on November 9, 2015, the trial

court entered an amended order attempting to comply with section 51.014(d) and

identifying the “controlling question of law” as “[w]hether this case, as pleaded by

the plaintiffs, is ripe for adjudication.” Pet. Tab 1, p. 2.

       The Lawyers’ filed this Petition on November 24, 2015. The Lawyers have

concurrently filed a Petition for Writ of Mandamus that is pending before this

Honorable Court wherein they assert an identical argument.2 Not only should the

Petition be dismissed because the Lawyers’ mandamus is currently pending before

this Court, but the Lawyers have failed to demonstrate their right to a permissive

appeal.




2
 See Cause No. 15-00990-CV; In re Arnold & Itkin, LLP, et al.; In the First Court of Appeals of
Texas, at Houston.
                                              9
                                  ARGUMENT
      A.    THE PETITION  SHOULD BE DENIED BECAUSE THE             LAWYERS
            HAVE ALSO FILED A MANDAMUS.

      This Honorable Court has recognized that a permissive appeal is

inappropriate when, as here, the issues are raised in connection with a petition for

writ of mandamus. See Warren v. Weiner, 2015 Tex. App. LEXIS 8148, at *1

(Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.). Although not articulated in

Warren, the rationale for such a holding is likely premised on the notion that

“[s]ubsection (d) was added to Section 51.014 to promote judicial efficiency.” In

re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.);

Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-208 (Tex. App.—San Antonio

2011, no pet.). Requiring the parties to brief and this Court to consider identical

issues in two separate appellate proceedings does not “promote judicial efficiency”

and, therefore, the Petition should be denied. See Warren, 2015 Tex. App. LEXIS

8148, at *1; See also In re Estate of Fisher, 421 S.W.3d at 685-686 (“Here, judicial

economy will not be served if permissive appeal is allowed at this stage, since an

unhappy party is free to appeal the order which would be expected to result soon

from the court's summary judgment ruling…”).




                                        10
          B.     THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT
                 DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS
                 CONTROLLING TO THIS COURT.

          The Lawyers contend that the “controlling question of law” or “The Issue”

to be appealed is “[w]hether this case, as pleaded by the Clients, is ripe for

adjudication.” Pet. Mot., p. 10. Importantly, however, the trial court never found

this issue to be controlling. Pet. Tab 1, p. 2 (“The Court is uncertain about the

meaning of a controlling issue of law for purposes of section 51.0149(d), but

believes that The Issue may be controlling.”)(emphasis added). The uncertainty

reflected in the trial court’s order is further highlighted by the transcript from the

hearing on the Lawyers’ motion to file a permissive appeal wherein the trial court

stated that its order denying the Lawyers’ Pleas did not rule on any controlling

question of law.3 Resp. Tab 5, p. 12 (“I agree with you. I am not even sure what the

issues are.”). Rather, the trial court merely deferred a ruling on the legal issue to

this Court. Id. (“Let’s see what the court of appeals thinks if [the Lawyers] are

correct or not.”).

          The trial court’s deferral of ruling on any substantive legal issues deprives

this Court of jurisdiction. See Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-

CV, 2015 Tex. App. LEXIS 6249, 2015 WL 3799505, at *2 (Tex. App.—Houston

[1st Dist.] June 18, 2015, no pet.) (mem. op.)(denying petition for permissive

3
    This transcript, of course, was omitted from the Lawyers’ record.
                                                 11
appeal when, among other things, “the trial court did not rule on a controlling

question of law…”); See also Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No.

01-14-00372-CV, 2014 Tex. App. LEXIS 6746, 2014 WL 2895770, at *2 (Tex.

App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.); See also Gulley, 350

S.W.3d at 207 (“[w]e have found no reported case in which 51.014(d) was used in

this manner to present an intermediate court of appeals with a ‘controlling legal

question’ prior to the trial court making a substantive ruling on the legal issue.”).4

Thus, the Petition should be denied. See Id.

       C.      THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE
               APPEALED IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH
               THERE IS A SUBSTANTIAL DIFFERENCE OF OPINION.

        “There has been little development in the case law construing section

51.014 regarding just what constitutes a controlling legal issue about which there is

a difference of opinion and the resolution of which disposes of primary issues in

the case.” Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539, 544 (Tex.

App.—Houston [14th] 2015, no pet.). Nonetheless, the Fourteenth Court of

Appeals, citing to applicable legal treatises, has stated:

       [A] controlling question of law is one that deeply affects the ongoing
       process of litigation. If resolution of the question will considerably
       shorten the time, effort, and expense of fully litigating the case, the
       question is controlling. Generally, if the viability of a claim rests upon
4
 For reasons not present in this case, the court in Gulley held that the statutory requirements for
an agreed interlocutory appeal technically were met and it had jurisdiction over the appeal. See
Gulley, 350 S.W.3d at 208, n.2.
                                                12
      the court’s determination of a question of law, the question is
      controlling

Id. at 544-545. The Lawyers have failed to establish this first element.

      The Lawyers argue that the trial court’s denial of their Pleas was a ruling on

a controlling legal issue for which an immediate appeal may advance the ultimate

termination of litigation because the trail court’s ruling dealt with jurisdiction. Pet.

Mot., at p. 11. The Lawyers’ logic is flawed. There is no doubt that jurisdiction is

necessary in order for any court to entertain litigation of any kind. However, only

specific interlocutory orders regarding jurisdiction are immediately appealable.

See TEX. CIV. PRAC. &     REM.   CODE § 51.014(a). Otherwise, Texas law is clear:

appeals may only be taken from final judgments. Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001).

      The only “legal issue” that the trial court ruled on was “whether this case, as

pleaded by plaintiffs, is ripe for adjudication.” Pet. Tab 1, at p. 2. Although it is

true that the trial court, at the request of the Lawyers, amended its original order

merely denying the Pleas, the amendment is of no consequence because the

amended order failed to provide a basis for the denial. Pet. Tab 1. “When a trial

court in its order … provides no basis for its denial, the trial court fails to make [a]

substantive ruling on the controlling question of law sought to be appealed.”

Vestalia, 2015 Tex. App. LEXIS 6249 at *1-2. In Vestalia, this Court denied a


                                          13
petition for permissive appeal even though the trial court’s order stated that it

“involve[d] questions of law as to which there is a substantial ground for difference

of opinion” and listed the questions because the trial court merely denied the

summary judgment motion without explanation. Id. at *2. Just as in Vestalia, the

trial court wholly failed to explain the reason for the denial and thus, the Petition

should be denied. See also Warren, 2015 Tex. App. LEXIS 8148, at *1 (mere

denial of a plea to the jurisdiction insufficient to warrant permissive appeal

because such orders do not involve controlling questions of law as to which there

are substantial grounds for difference of opinion).

      Furthermore, there exist disputed questions of fact which render a

permissive appeal inappropriate. The question of whether the Clients’ underlying

claims are actually barred from being refiled in Mexico is the proximate cause

element of the Clients’ negligence claim and is a question of fact for the jury to

decide. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 122 (Tex. 2004)

(requiring fact finder to decide what a judge would have decided in the underlying

case under hypothetical circumstances). Likewise, mitigation of damages is a

defensive issue upon which the Lawyers bear the burden of proof at trial and is

generally a question of fact. See Texas Animal Health Com’n v. Garza, 27 S.W.3d

54, 62 (Tex. App.—San Antonio 2000, pet. denied). These unresolved factual

issues preclude a permissive appeal.

                                         14
      In Fertitta Hospitality, LLC v. O'Balle, 2014 Tex. App. LEXIS 12141

(Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.), this Court held that a

permissive appeal of a denial of a summary judgment was inappropriate “[b]ecause

the parties ha[d] identified neither a controlling legal principle nor an agreed set

of facts[.]” Id. at *10 (emphasis added). The facts of this case are heavily in

dispute: the Lawyers have an unsupported belief that the Clients can refile their

underlying claims in Mexico whereas the Clients believe – and have provided

expert testimony to support the fact that – their underlying claims cannot be refiled

in Mexico and are barred by limitations. Without an undisputed or agreed set of

facts, a permissive appeal is inappropriate. See Id.; See also Borowski v. Ayers, 432

S.W.3d 344, 348 (Tex. App.—Waco 2013, no pet.)(dismissing permissive appeal

of denial of summary judgment motion because factual issues were in dispute); See

also King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 Tex. App. LEXIS 2761,

at *8-9(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)(dismissing

permissive appeal on issue of whether party exercised due diligence in securing

service of process because this is generally a question of fact); See also Diamond

Prods. Int’l., Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th

Dist.] 2004, no pet.) (“The statute does not contemplate permissive appeals of

summary judgments where the facts are in dispute”).



                                         15
      Moreover, whether the Clients’ claims are ripe under the disputed facts

plead by the Clients is not a legal question that is subject to substantial grounds for

disagreement. “Substantial grounds for disagreement exist when the question

presented to the court is novel or difficult, when controlling circuit law is doubtful,

when controlling circuit law is in disagreement with other courts of appeals, and

when there simply is little authority upon which the district court can rely[.]”

Lloyd, 457 S.W.3d at 544-545. In an effort to contort the question presented into a

“novel” or “difficult” one, the Lawyers argue that the “issue presented” is “whether

dismissal on forum non conveniens grounds in favor of Mexico conditioned on a

limitations waiver and with a return jurisdiction clause represents the accrual of an

injury for purposes of a legal malpractice claim.” Pet. Mot., at p. 11. Yet, this was

not the question ruled upon by the trial court. Rather, the question was simply

“whether this case, as pleaded by plaintiffs, is ripe for adjudication.” Pet. App. Tab

1, at p. 2. This is not a “novel or difficult” question the resolution of which will

further Texas jurisprudence. Likewise, the courts of appeals are not struggling or in

conflict with one another to determine the ripeness of the Clients’ claims. Simply

put; there is nothing “novel” or “controlling” about the trial court’s denial of the

Lawyers’ Pleas and, therefore, the Petition should be dismissed.




                                          16
      D.     THE PETITION  SHOULD BE DENIED BECAUSE AN IMMEDIATE
             APPEAL WILL NOT MATERIALLY ADVANCE THE ULTIMATE
             TERMINATION OF THE LITIGATION BUT WILL LEAD TO JUDICIAL
             INEFFICIENCY.

      The second element of the statute requires the Lawyers to show that “an

immediate appeal from the order may materially advance the ultimate termination

of the litigation.” TEX. CIV. PRAC. & REM. CODE. § 51.014(d)(emphasis added).

“Generally, a district court will make a finding that the appeal will facilitate final

resolution of the case when resolution of the legal question dramatically affects

recovery in a lawsuit.” Lloyd, 457 S.W.3d at 544-545 (emphasis added)(internal

brackets omitted). While a ruling on the Pleas may be “important” to the Lawyers,

“it does not dispose of controlling issues in the case.” See Lloyd, 457 S.W.3d at

545. Rather, a ruling on the Lawyers’ Pleas – which sought to either dismiss or

abate this lawsuit pending the Clients filing and litigating their claims in Mexico

through exhaustion of all appeals – will merely postpone and delay this litigation,

not terminate it. Indeed, abatement, by definition, means “to cause to cease for a

time; to postpone; to stay, delay, or hinder; to discontinue temporarily, but with an

expectation or purpose of resumption.” America Online, Inc. v. Williams, 958

S.W.2d 268, 272 (Tex. App. – Houston [14th Dist.] 1997, no pet.)(emphasis

added).




                                         17
      Judicial economy will not be served if a permissive appeal is allowed

because the Lawyers will be delaying the inevitable malpractice suit as well as

creating three other judicial proceedings: (1) the permissive appeal relating to the

trial court’s denial of the Pleas; (2) the mandamus proceeding relating to the trial

court’s denial of the Pleas; and, if either are successful; (3) another lawsuit in

Mexico plus numerous appeals of any decision. Whatever the outcome, however,

the Clients’ claims against the Lawyers will remain relating to the failure to

properly respond to the forum non conveniens motions which caused the Clients to

have to refile the claims in Mexico in the first instance.

      More specifically, the Clients contend that, due to the Lawyers’ negligence,

the underlying court granted the forum non conveniens motion and required the

Clients to file their claims in Mexico, where, even if the claims are not barred, they

are now faced with virtually non-existent discovery, no procedural protections,

extensive delays to any resolution and the unlikelihood of any attorney taking their

case. Resp. Tab 1 and Tab 3, at Ex. A. The lost benefit of pursuing their claims in a

United States court is at least some “concrete injury” which has already occurred

and is not contingent on any future event, thereby rendering these claims ripe. See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15 (lost opportunity found to

constitute injury sufficient to demonstrate ripeness even if other damages were

speculative, holding “[t]he loss of that benefit, whatever it may ultimately be

                                          18
determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”).

Accordingly, a ruling on the Lawyers’ proposed legal question will not terminate

this litigation because the Clients will still have claims against the Lawyers for

these damages and thus, the Petition should be denied. See Lloyd, 457 S.W.3d at

545 (dismissing permissive appeal because trial court’s ruling on summary

judgment only affected “one facet” of the client’s malpractice claim); See also In

re Estate of Fisher, 421 S.W.3d at 686 (denying permissive appeal because “[t]he

parties may also have the opportunity to appeal other future orders that adjudicate a

substantial right and end various phases of the probate proceeding.”).

                           CONCLUSION & PRAYER

      For these reasons, the Clients request this Honorable Court to deny the

Lawyers’ Petition for Permission to Appeal Interlocutory Order and grant the

Clients all other relief to which they may be entitled.




                                          19
Respectfully submitted,

THE KASSAB LAW FIRM

   / s / David Eric Kassab
   LANCE CHRISTOPHER KASSAB
   Texas State Bar No. 00794070
   lck@texaslegalmalpractice.com
   DAVID ERIC KASSAB
   Texas State Bar No. 24071351
   dek@texaslegalmalpractice.com
   1420 Alabama
   Houston, Texas 77004
   t. 713.522.7400
   f. 713.522.7410

DOHERTY✯WAGNER

   / s / Brett Wagner
   BRETT WAGNER
   Texas State Bar No. 20654270
   brett@dwlawyers.com
   LARRY JOE DOHERTY
   Texas State Bar No. 05950000
   larry@dwlawyers.com
   RYAN W. SMITH
   Texas State Bar No. 24063010
   ryan@dwlawyers.com
   13810 Champion Forest Drive, Suite 225
   Houston, Texas 77069
   t. 281 583-8700
   f. 281 583-8701

ATTORNEYS FOR RESPONDENTS




        20
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this motion/response contains approximately 4,487 words excluding the allowable

items set forth in Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-

generated document created in Microsoft Word 2010, using 14-point typeface for

all text, except for footnotes which are in 12-point typeface. In making this

certificate of compliance, I am relying on the word count provided by the software

used to prepare the document.

      Dated: December 3, 2015

                                                   / s / David Eric Kassab
                                                   David Eric Kassab




                                        21
                        CERTIFICATE OF SERVICE

      The undersigned certifies that on December 3, 2015, the foregoing response

was served electronically on the following parties in accordance with the

requirements of the Texas Rules of Appellate Procedure:

      Reagan W. Simpson                        Jeremy L. Doyle
      State Bar No. 18404700                   State Bar No. 24012553
      rsimpson@yettercoleman.com               jdoyle@reynoldsfrizzell.com
      YETTER COLEMAN LLP                       REYNOLDS FRIZZELL LLP
      909 Fannin, Suite 3600                   1100 Louisiana, Suite 3500
      Houston, Texas 77010                     Houston, Texas 77002
      Tel. 713-632-8000                        Tel. 713-485-7200
      Fax 713-632-8002                         Fax 713-488-7250
      Counsel for Petitioners                  Counsel for Petitioners
      Beck Redden LLP,                         Arnold & Itkin, L.L.P.,
      Russell Post, Fields                     Kurt Arnold, Cory Itkin
      Alexander and Jas Brar                   and Jason Itkin

      Billy Shepherd                           Sam Houston
      State Bar No. 18219700                   State Bar No.10059550
      bshpeherd@spmlegal.com                   shouston@sschlaw.com
      SHEPHERD PREWETT MILLER PLLC             SCOTT, CLAWATER & HOUSTON L.L.P.
      770 South Post Oak Lane                  2777 Allen Parkway, 7th Floor
      Suite 420                                Houston, Texas 77019-2133
      Houston, Texas 77056                     Tel. 713-650-6600
      Tel. 713-955-4440                        Fax 713-766-6542
      Fax +1 713-766-6542                      Counsel for Petitioners Arnold &
      Counsel for Petitioners                  Itkin,
      Albritton Law Firm and                   L.L.P., Kurt Arnold, Cory Itkin and
      Eric Albritton                           Jason Itkin




                                       22
John Black
State Bar No. 24012292
jblack@dalyblack.com
DALY & BLACK, P.C.
2211 Norfolk, Suite 800
Houston, Texas 77008
Tel. 888-492-2671
Fax 713-655-1587
Counsel for Petitioners Arnold & Itkin,
L.L.P., Kurt Arnold, Cory Itkin and
Jason Itkin


                                          / s / David Eric Kassab
                                          David Eric Kassab




                                  23
                                 VERIFICATION

STATE OF TEXAS                            §
COUNTY OF HARRIS                          §


      BEFORE ME, the undersigned notary, on this day, personally appeared

David Eric Kassab, a person whose identity is known to me. After I administered

an oath to him, upon his oath, he said:

       "My name is David Eric Kassab. I am one of the attorneys for Plaintiffs in
the trial court and in this appeal. All pleadings, motions, order(s), and/or other
documents attached to the Appendix of Plaintiffs-Respondents' Motion to Dismiss
for Lack of Appellate Jurisdiction and Response to Petitioners' Petition for
Permission to Appeal are true and correct copies of documents filed with, or
obtained from, the trial court."




      SUBSCRIBED AND SWORN TO BEFORE ME by David Eric Kassab, on

this the 3rdday of December, 2015.




                                          My commission expires:
                No. 01-15-00989-CV
    _________________________________________

                     IN THE
            FIRST COURT OF APPEALS
                    at Houston
 ______________________________________________

             ARNOLD & ITKIN, LLP, ET AL.
                    Petitioners,

                             v.

   MARIA SANTOS LOPEZ DOMINGUEZ, ET AL.
                   Respondents,
 ______________________________________________

          Trial Court Cause Number 2015-28543
From the 11th Judicial District Court of Harris County, Texas
 ______________________________________________

           RESPONDENTS’ APPENDIX
 ______________________________________________
                 INDEX OF APPENDIX

TAB NUMBER   DOCUMENT

    1        Plaintiffs’ Second Amended Petition
    2        Plaintiffs’ Response to All Defendants’ Plea to the
             Jurisdiction, and, In the Alternative, Plea in Abatement
    3        Plaintiffs’ Sur-Reply to All Defendants’ Plea to the
             Jurisdiction, and, In the Alternative, Plea in Abatement

    4        September 17, 2015 Order Denying Defendants’ Plea to
             the Jurisdiction, and, In the Alternative, Plea in Abatement
    5        October 19, 2015 Transcript of Status Conference on
             Defendants’ Motion for Permission to File Interlocutory
             Appeal
Appendix Tab 1
                                   CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ,                       §              IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND                     §
OF KAREN MARIEN ANDRADE LOPEZ,                      §
MAIRET SAMELI ANDRADE LOPEZ                         §
AND IMAR GERARDO ANDRADE LOPEZ                      §
ON BEHALF THE ESTATE OF OMAR                        §
GERARDO ANDRADE LOPEZ, ET AL                        §
                                                    §
V.                                                  §            OF HARRIS COUNTY, TEXAS
                                                    §
ARNOLD & ITKIN, L.L.P.,                             §
BECK REDDEN, L.L.P.,                                §
ALBRITTON LAW FIRM,                                 §
KURT ARNOLD, CORY ITKIN,                            §
JASON ITKIN, RUSSELL POST,                          §
FIELDS ALEXANDER, JAS BRAR and                      §
ERIC ALBRITTON                                      §              11TH JUDICIAL DISTRICT

                      PLAINTIFFS’ SECOND AMENDED PETITION
                          AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:

       COME NOW Plaintiffs, Maria Santos Lopez Dominguez, Individually and as next friend

of Karen Marien Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade

Lopez on behalf of the Estate of Omar Gerardo Andrade Zarate; Gabriel Gonzalez Toral; Jorge

Arturo Jimenez Rangel; Antonio Montero Hernandez; Juan Antonio Palafox Navarrete; Leonel

Fernandez Rivera; Fernando Augusto Cervera Ramirez; Libia Arredondo Chavez; individually

and as Next Friend of Jorge Ricardo Barrancos Arredondo and Pedro Santiago Barrancos

Arredondo on behalf of the Estate of Jorge Alonso Barrancos Dzul; Pastor Garcia Ocana; Jorge

Guzman Martinez; Aldo Antonio Lopez Lorenzo and Monica Lopez; and Miguel Cobos Salas

complaining of Defendants, Arnold & Itkin, L.L.P., Beck Redden, L.L.P., Albritton Law Firm,

Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields Alexander, Jas Brar and Eric Albritton,

and would respectfully show as follows:


PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 1 OF 20
                                          I
                               DISCOVERY CONTROL PLAN

       Based upon this Petition, this case should be controlled by discovery control plan Level 3

pursuant to the Texas Rules of Civil Procedure, Rule 190.4. Plaintiffs seek monetary relief over

$1,000,000.00.

                                              II
                                           PARTIES

       Plaintiff, Maria Santos Lopez Dominguez, Individually and as next friend of Karen

Marien Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade Lopez on

behalf of the estate of Omar Gerardo Andrade Zarate is a resident of Mexico.

       Plaintiff, Gabriel Gonzalez Toral is a resident of Mexico.

       Plaintiff, Jorge Arturo Jimenez Rangel is a resident of Mexico.

       Plaintiff, Antonio Montero Hernandez is a resident of Mexico.

       Plaintiff, Juan Antonio Palafox Navarrete is a resident of Mexico.

       Plaintiff, Leonel Fernandez Rivera is a resident of Mexico.

       Plaintiff, Fernando Augusto Cervera Ramirez is a resident of Mexico.

       Plaintiffs, Libia Arredondo Chavez, individually and as Next Friend of Jorge Ricardo

Barrancos Arredondo and Pedro Santiago Barrancos Arredondo on behalf of the Estate of Jorge

Alonso Barrancos Dzul is a resident of Mexico.

       Plaintiff, Pastor Garcia Ocana is a resident of Mexico.

       Plaintiff, Jorge Guzman Martinez is a resident of Mexico.

       Plaintiff, Aldo Antonio Lopez Lorenzo and Monica Lopez are residents of Mexico.

       Plaintiff, Miguel Cobos Salas is a resident of Mexico.

       Defendant, Arnold & Itkin, L.L.P., is a Texas Limited Liability Partnership formed for

the practice of law and has answered herein.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                      PAGE 2 OF 20
       Defendant, Beck Redden, L.L.P., is a Texas Limited Liability Partnership formed for the

practice of law and has answered herein.

       Defendant, Albritton Law Firm is a law firm located in Longview, Texas and has

answered herein.

       Defendant, Kurt Arnold, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

       Defendant, Jason Itkin, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

       Defendant, Cory Itkin, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

       Defendant, Russell Post, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

       Defendant, Jas Brar, is an individual residing in and/or doing business in Harris County,

Texas and has answered herein.

       Defendant, Eric Albritton, is an individual residing in and/or doing business in Gregg

County, Texas and has answered herein.

                                           III
                                 JURISDICTION AND VENUE

       This Court has subject matter jurisdiction over the controversy because the claims

asserted in this Petition arose, in whole or in part, in Texas and the amount in controversy

exceeds the minimum jurisdictional limits of this Court.

       This Court has personal jurisdiction over each Defendant because the acts and omissions

complained of herein occurred in Texas, each Defendant does and/or did do business in the State

of Texas, has committed a tort, in whole or in part in Texas, is a resident and citizen of Texas,


PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                      PAGE 3 OF 20
and/or has minimum contacts with the State of Texas during the period of time complained of

herein.

          Venue is properly laid in the Harris County, Texas because Defendant, Arnold & Itkin,

LLP has a principal office and headquarters in Harris County, Texas. See TEX. CIV. PRAC. &

REM. CODE § 15.002(a)(3). All other Defendants jointly represented Plaintiffs in the underlying

case and are responsible for each other’s conduct. Because the claims and causes of action

against all other Defendants arise out of the same transaction, occurrence, or series of

transactions or occurrences, the Court has venue for all Defendants. See TEX. CIV. PRAC. & REM.

CODE § 15.005.

                                            IV
                                   FACTUAL BACKGROUND

          This is a legal malpractice case arising out of a grossly tragic, yet entirely avoidable

mobile off-shore platform accident which took place off the Bay of Campeche, Mexico in

October of 2007. The accident caused the death of twenty-two workers and injured sixty-three

more. After the explosion, Plaintiffs were herded by the lawyers to sue the various American and

Mexican oil companies responsible. Unfortunately, the lawyers, after filing the lawsuits, were

found by the court to have failed to “prosecute the cases in good faith” thereby causing the cases

to be dismissed. With the statute of limitations lapsed and unwaivable under Mexico law, the

cases are forever barred to being refiled. In the end, the fatal negligence of the lawyers deprived

these Plaintiffs of their right to seek redress for the injuries and deaths they sustained. The

disastrous series of events is as follows.

          A.     THE ACCIDENT

          Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile


PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 4 OF 20
drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored. An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform. As a result, twenty two offshore

workers (including two rescuers) died and sixty three others were injured. Plaintiffs were among

those injured and/or survivors of those killed in the tragedy.

        B.      THE IMPROPER SOLICITATION.

        On information and belief, Plaintiffs were illegally and unethically contacted via

telephone by an individual claiming to be a representative of a law firm (the “runner”) shortly

after the incident. The runner told some of the Plaintiffs that the law firm was interested in

representing them against the American companies responsible for the faulty valve and

ultimately the incident and their injuries. The runner advised some of the Plaintiffs to recruit

others to be solicited by the law firm for representation. The runner then met with other

Plaintiffs to solicit them into hiring the attorneys.

        C.      THE UNDERLYING LAWSUIT

        Thereafter, Plaintiffs, either individually or collectively, retained Defendants Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin, Jason Itkin, (“Defendants” or “Lawyers”) to represent

them in claims against the parties responsible for causing the injuries and deaths. Thereafter,

Eric Albritton and the Albritton Law Firm (“Albritton Defendants”) were enlisted as local

counsel to represent the Plaintiffs. Beck Redden, L.L.P., Russell Post, Fields Alexander and Jas

Brar (“Beck Defendants”) were also enlisted to represent Plaintiffs with regard to the attempt to

reinstate Plaintiffs’ cases in the United States.



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                          PAGE 5 OF 20
       Beginning in October of 2008, Defendants, on behalf of Plaintiffs, filed various lawsuits

in the United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of Mexican and American companies including Gulf Coast Marine & Associates, Inc.,

Schlumberger Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel

Company (the “underlying lawsuit”).

       In the underlying lawsuit, the Lawyers alleged negligence, gross negligence, products

liability, and wrongful death claims. These Texas corporate defendants were responsible for

making policy, safety, corporate, manufacturing, supervision, and design decisions, in their

United States headquarters, that directly affected the events relevant in the underlying lawsuit.

More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying defendants breached

their duties by negligently failing to provide a safe working environment, accurate weather

information, proper supervision, proper equipment that was in good repair; accurate information

as to soil conditions and platform placement; and failing to timely engage in rescue efforts,

among other claims. Defendants, on Plaintiffs’ behalf, alleged that Schlumberger and Halliburton

were liable for strict products liability for defective design and manufacture of the safety valves

and/or sensors that failed in the underlying incident. Even more specifically, Defendants alleged

that the valve design defect posed an unreasonably dangerous rate of fouling, a process leading

to the buildup of solids which creates a false seal that erodes with time, significantly increasing

the risk of a perilous and incessant oil and gas leak. Defendants also alleged that products in

question contained inadequate warnings. Defendants alleged that these product defects rendered

the offending products unreasonably dangerous and, therefore, Schlumberger and Halliburton

were liable for all damages caused thereby without regard to fault. These claims were based on



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 6 OF 20
Texas state law, general federal or international maritime law, including the Jones Act, and

Mexican law.

       The District Court dismissed Plaintiff’s state law claims with prejudice, finding that they

were preempted by the Jones Act. In addition, the District Court dismissed Plaintiff’s federal

maritime claims because the Lawyers negligently failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act. Thus, due

to the negligence of the Lawyer Defendants, including the Albritton Defendants, the only claims

remaining were Plaintiff’s Mexican claims for civil liability and moral damages.1

       The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case. More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute. More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum. The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.

       In response, the Lawyers, including the Albritton Defendants, merely argued that all of

the underlying defendants were U.S. companies or citizens and, therefore, the documents and

witnesses regarding liability were located in the United States. However, the Defendants, the




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 7 OF 20
Albritton Defendants and the Beck Defendants wholly failed to argue, among other things, that

Mexico was not an available forum because:

            1. The waiver of the statute of limitations is invalid under Mexican law;

            2. Mexico lacks jurisdiction over United States residents and the unilateral
               consent by the underlying defendants does not create jurisdiction in
               Mexico;

            3. Plaintiff would not be voluntarily choosing the Mexican forum as required
               under Mexican law; and

            4. Mexico had lost any initial jurisdiction it ever had over the case after the
               case was initially filed in the United States.

        Additionally, all of the Defendants wholly failed to argue, among other things, that

Mexican courts were not adequate for adjudicating the case because:

            1. Mexico does not have procedural safeguards to permit the Plaintiff to
               develop his evidence; and

            2. Proceedings in Mexico will not be concluded within a reasonable time
               frame.

As discussed further below, had the foregoing substantive arguments been properly asserted by

all of the Defendants in the response to the forum non conveniens, the outcome of the underlying

case would have been different and the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum.

        After a hearing on that motion on March 10, 2011, the District Court conditionally

granted the motion. The granting of the motion carried five crucial conditions to the survival of

Plaintiff’s claims:




1
 Pursuant to Articles 500 and 502 of the Federal Labor Law in Mexico allows only approximately $9,500.00 U.S.
Dollars as compensation for civil liability in death cases. Moral damages in Mexico are equally inadequate to
compensate worker’s personal injuries.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                                  PAGE 8 OF 20
           1. Defendants agree to appear and submit themselves to the jurisdiction of a
              Mexican federal or state court, waiving any jurisdictional defenses they
              might normally possess;

           2. Defendants agree to waive any statute of limitations defense that they did
              not possess as of the date each of the seven cases was originally filed;

           3. Defendants agree to submit to discovery in the Mexican forum in
              accordance with the procedural rules of the Mexican court;

           4. Defendants agree that they will make all relevant witnesses and documents
              available in Mexico to the extent consistent with Mexican law;

           5. Defendants further agree that they will make any employee witness
              available for trial in Mexico to the extent consistent with Mexican law.

       The order also carried with it a return jurisdiction clause stating that, “Should the courts

of Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this

Court may reassert jurisdiction upon timely notification of the same.”

       From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases. The underlying defendants then challenged the Mexican court’s

jurisdiction due to Defendants failure to comply with the District Court’s Order. In what appears

to be part of Defendants’ sophomoric, jejune and grossly negligent trial strategy to have

Plaintiffs’ claims tried in Texas (where Defendants’ practice and reside) as soon as possible,

Defendants attempted to bypass the dictates of the District Court’s Orders. Specifically, the

Defendants did not make use of the stipulation to Mexican jurisdiction the underlying defendants

signed as part of the dismissal in the District Court or otherwise contest the underlying

defendant’s resistance to Mexican jurisdiction.         Not surprisingly, the Mexican courts

immediately rejected jurisdiction of the cases.




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 9 OF 20
       Moreover, rather than appeal the dismissal for lack of jurisdiction to a higher Mexican

court, all of the Defendants simply filed a motion to reinstate the Plaintiffs’ case in District Court

on or about October 18, 2013. After extensive briefing, the District Court denied Defendants’

attempt to re-file the cases in Texas. In her May 14, 2014 memorandum opinion, Judge Marcia

Crone exposed Defendants’ fraud on the courts in great detail, noting that Defendants “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Judge Crone continued,

“Because counsel made no attempt to litigate those cases in Mexico in compliance with the

court’s Memorandum and Order, there is no basis upon which to reopen them here.” Therefore,

with regard to all of the underlying cases, save and except the eleven that were refiled in Mexico,

Defendants grossly failed to litigate diligently and in good faith.

       With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.” Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge

Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly. Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying lawsuits.

       With the accident and resulting injuries and deaths occurring in October of 2008, the

Plaintiffs’ underlying lawsuit may not be refiled in Mexico because it is now barred by



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                          PAGE 10 OF 20
limitations. Moreover, while the underlying defendants agreed to stipulate to jurisdiction in

Mexico and waive the statute of limitations, these stipulations and waivers were invalid under

Texas and Mexican law from the outset. See Sacks v. Four Seasons Hotel Ltd., 2006 U.S. Dist.

LEXIS 17768 at *18 (E.D. Tex. Mar. 7, 2006)(denying motion to dismiss under the doctrine of

forum non conveniens based, in part, on Mexican law experts testimony that “stipulations made

before a United States court to waive the Mexican statute of limitations are meaningless in

Mexico.”). The Lawyers, including all Defendants herein, wholly failed to raise these points in

response to various motions to dismiss. Had such evidence, arguments and authority been

presented, the District Court would not have dismissed the case and the case would have

remained in the Texas District Court. Moreover, and in the alternative, all Defendants failed to

appeal the District Court’s rulings based upon the above arguments and authority. Had this

appeal been undertaken, it would have been successful and the case would have remained in

District Court.

       Furthermore, the waivers became invalid and unenforceable when the Lawyers, including

the Albritton Defendants, failed to comply with the initial March 10, 2011 order from the District

Court requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in

good faith. Accordingly, the waivers and stipulations are of no consequence. As a result,

Plaintiffs’ claims are forever barred in both the United States and Mexico.

       Obviously, Defendants attempted to make jurisdiction in the United States as quickly as

possible no matter what the cost to their clients. This is demonstrated by the fact that the suits

were filed in Texas first rather than exhausting all remedies in Mexico. When that failed,

Defendants filed only eleven cases in Mexico rather than waste their time filing all of them in

Mexico. Even then, Defendants purposefully, intentionally and willfully sabotaged the cases so



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 11 OF 20
that the Mexican courts would quickly dismiss them for lack of jurisdiction, which is exactly

what they did. The obviousness of this failed strategy is underscored by the fact that Defendants

chose to file similarly-worded and woefully inadequate complaints even after receiving dismissal

orders from the Mexican courts for the first several cases instead of correcting the inadequacies

by expressly stating that Defendants had submitted to Mexico’s jurisdictions in writing.

       To add insult to injury, after the May 14, 2014 dismissal, some of the Defendants sent

deceitful withdrawal letters to the Plaintiffs wherein they attempted to conceal and downplay the

significance of their actions and conceal their wrongdoing. Not only this, but to the extent the

decision of the District Court was erroneous, all Defendants neglected to appeal the decision of

the District Court or even advise the Plaintiffs of their rights to do so within the prescribed

period of time. As a result of all the Defendants’ grossly incompetent strategy, Plaintiffs were

left with no remedy for themselves or their loved ones who lost lives.

                                          V
                                  RESPONDEAT SUPERIOR

       At all times material hereto, Defendants, including the Albritton Defendants represented

Plaintiffs in the legal matters described herein. Additionally, the Beck Defendants represented

Plaintiffs with regard to strategy and litigation related to the attempted reinstatement of

Plaintiffs’ cases in the United States. Thus, at all times material hereto all of the specific acts

complained of herein below are attributable to the conduct of the individual Defendants, who

were attorneys associated with their respective law firm Defendant, as a partner, agent, servant,

representative and/or employee. Thus, the liability and responsibility of the Defendants herein is

vicarious and joint and several, and, further, Plaintiffs plead the legal theory of respondeat

superior as between the individual Defendants and their respective law firms. Therefore, as




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 12 OF 20
Plaintiffs’ lawyers, Defendants, including the Albritton Defendants and the Beck Defendants

owed Plaintiffs fiduciary and other duties of care as a matter of law.

                                          VI
                                  STATEMENT OF CLAIMS

       Therefore, it has become necessary to bring this suit to collect a legal debt of money

damages owing to Plaintiffs due to all of the Defendants’ conduct as listed above and below. All

the Defendants’ actions, either individually or in consert constitute negligence, gross negligence,

breach of fiduciary duty, fraud and constructive fraud as those terms are understood in law.

Defendants also violated section 32.45 of the Texas Penal Code (Misapplication of Fiduciary

Property).

       A.      NEGLIGENCE

       It has become necessary to bring this suit to collect a legal debt of money damages owing

to Plaintiffs because of all of the Defendants’ negligence as that term is understood in law.

Specifically, Plaintiffs would show the following errors and/or omissions as to the conduct of

some or all Defendants in their legal representation of Plaintiffs:

       1.      Failure to properly represent Plaintiffs;

       2.      Failure to preserve Plaintiffs’ rights and interests;

       3.      Failure to make the proper arguments in response to the motions filed in
               the District Court.

       4.      Failure to properly prosecute Plaintiffs’ causes of action in Mexican courts
               in good faith;

       5.      Failure to properly advise and/or inform Plaintiffs regarding the benefits
               and/or risks associated with the course of action taken by Defendants in
               the prosecution of their claims;

       6.      Failure to timely and fully advise Plaintiffs as to the status of their claims;




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                           PAGE 13 OF 20
       7.      Failing to timely file suit against parties against whom Plaintiffs had
               lawful claims;

       8.      Accepting representation for litigation for which Defendants were not
               competent to handle;

       9.      Failing to fully comply with Judge Wards April 20 and May 4, 2011
               Orders;

       10.     Failing to comply with the procedural laws of Mexico;

       11.     Failing to put forth sufficient evidence, argument and authority to the
               District Court to establish that any waivers of limitations or stipulations to
               jurisdiction by the underlying defendants would be invalid under Mexican
               law thereby rendering Mexico an inadequate forum;

       12.     Conceding that Mexico is an available and adequate forum for the
               adjudication of Plaintiff’s claims when it was not;

       13.     Failing to advise Plaintiffs of their right to appeal the decisions of the
               District Court or undertaking this appeal within the proscribed period of
               time; and

       14.     Failing to properly plead the Jones Act.

       Of Course, nothing Plaintiffs did or failed to do caused or in any way contributed to

cause the occurrences which resulted in losses and damages. On the contrary, all of the

Defendants wholly failed and neglected to properly represent Plaintiffs, and their conduct was a

proximate and/or producing cause of Plaintiffs’ losses and damages.

       B.      GROSS NEGLIGENCE

       The acts and omissions of all Defendants described herein constitute gross negligence for

which Plaintiffs now sue. All of the Defendants herein owed Plaintiffs a duty to render legal

services with the care, skill and diligence of an attorney of ordinary and reasonable skill and

knowledge. All of the Defendants failed to perform as an attorney of ordinary and reasonable

prudence to a gross extent. Moreover, some or all of the Defendants hold themselves out as

superior lawyers in ability and ethics, rising themselves to the status of an expert lawyer. In fact,


PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                         PAGE 14 OF 20
some of the lawyer Defendants classify and market themselves as “Super Lawyers.” Thus, these

Lawyer Defendants are held to the expert lawyer standard. Unfortunately however, all of hte

Defendants’ incompetence, as shown by the way they handled the underlying case, does not even

rise to the level of an ordinarily prudent lawyer. All of the Defendants herein wholly failed to

even uphold this minimal standard of care. Instead, all of the Defendants chose to treat Plaintiffs

with an entire want of care, such that all of these Defendants’ actions constitute an actual

conscious disregard to the rights, welfare and safety of Plaintiffs. Thus, all of the Defendants’

negligence and gross negligence proximately resulted in legal damages for which Plaintiffs sue.

       C.      BREACH OF FIDUCIARY DUTY

       An attorney client relationship existed between Plaintiffs and all Defendants herein.

Thus, all the Defendants owed Plaintiffs various fiduciary duties as a matter of law, including:

       1.      Duty to act with loyalty and utmost good faith;
       2.      Duty to act with absolute perfect candor, openness, and honesty, and
               without any deception or concealment, no matter how slight;
       3.      Duty to refrain from self-dealing, which extends to dealings with persons
               whose interests are closely identified with those of the fiduciary;
       4.      Duty to act with integrity of the strictest kind;
       5.      Duty of fair, honest dealing;
       6.      Duty of full disclosure; that is, a duty not to conceal matters that might
               influence a fiduciary to act in a manner prejudicial to the principal;
       7.      Duty to represent Plaintiffs with undivided loyalty;
       8.      Duty to make a full and fair disclosure of every facet regarding the matters
               material to the representation;

       Some or all of the Defendants knowingly and intentionally breached any one or all of the

above fiduciary duties owed to Plaintiffs by the acts and omissions stated herein and above. All




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                          PAGE 15 OF 20
of the Defendants’ various breaches of the fiduciary duties owed to Plaintiffs resulted in legal

damages to Plaintiffs and/or a benefit to Defendants, for which Plaintiffs now sue.

       D.      FRAUD AND CONSTRUCTIVE FRAUD

       Plaintiffs will show that the acts and omissions of some or all of the Defendants

constitute fraud in that: (i) Defendants made material misrepresentations (ii) Defendants made

the misrepresentations (and/or non-disclosures) with knowledge of its falsity or made them

recklessly without any knowledge of the truth and as a positive assertion; (iii) the

misrepresentations (and/or non-disclosures) were made with the intention that they should be

acted and/or relied upon by Plaintiffs; and (iv) Plaintiffs relied on the misrepresentations (and/or

non-disclosures) and suffered injury. Specifically, Defendants represented they would follow the

District Court’s Orders and litigate in good faith by re filing the underlying suits in Mexico and

by exhausting all remedies in Mexico prior to reopening the cases in the United States.

Defendants had no intention of following the District Court’s Orders, nor litigate in good faith in

Mexico as outlined above. Plaintiffs relied on these Defendants misrepresentations and/or lack

thereof to their detriment. This was not only a fraud perpetrated against Plaintiffs, the Lawyers

own clients, but was a fraud upon the Court as well.

       E.      MISAPPLICATION OF FIDUCIARY PROPERTY

       Defendants herein violated section 32.45 of the Texas Penal Code (Misapplication of

Fiduciary Property). Pursuant to section 32.45, a violation occurs when a fiduciary intentionally,

knowingly or recklessly misapplies property he holds as a fiduciary in a manner that involves

substantial risk of loss to the owner of the property or to a person for whose benefit the property

is held. These Defendants owed a fiduciary duty to Plaintiffs as a matter of law. Further,

Plaintiffs’ underlying lawsuit was considered “property” as that term is understood in law and



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                        PAGE 16 OF 20
was held in these Defendants’ safe keeping. These Defendants intentionally, knowingly or

recklessly misapplied Plaintiffs’ property (1) by attempting to bypass Mexican procedural law;

(2) by failing to follow the simple dictates of Judge Ward’s Orders; (3) by not diligently

prosecuting Plaintiffs’ claims; (4) by failing to argue that Mexican law does not recognize

stipulations made in other jurisdictions; and (5) by failing to appeal Judge Ward’s April 20 and

May 4, 2011 Orders. Clearly, such conduct involved a substantial risk of loss to Plaintiffs’

property, and in fact, such property was lost due to Defendants’ actions. Therefore, Defendants

violated section 32.45 of the Texas Penal Code. Moreover, pursuant to Civil Practice and

Remedies Code, Section 41.008 (c) the statutory caps for punitive and/or exemplary damages do

not apply to this case.

       F.      VIOLATION OF THE BARRATRY STATUTE

       Texas Disciplinary Rule of Professional Conduct 8.04(a) prohibits an attorney from

“engage[ing] in conduct that constitutes barratry as defined by the law of this state.” TEX. DISCP.

R. PROF’L CONDUCT 8.04. A person commits barratry “if, with intent to obtain an economic

benefit the person… pays or gives or offers to pay or give a person money or anything of value

to solicit employment.” TEX. PENAL CODE § 38.12(a)(4). Simply put, “[b]arratry is the

solicitation of employment to prosecute or defend a claim with intent to obtain a personal

benefit.” State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994). An agreement

procured through barratry is voidable by the client. Cobb v. Stern, Miller & Higdon, 305 S.W.3d

36, 42 (Tex. App.—Houston [1st Dist.] 2009, no pet.). As stated above, Defendants violated the

foregoing rules and statutes by engaging third parties to personally contact Plaintiffs and solicit

Defendants’ employment in the underlying lawsuit.




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                       PAGE 17 OF 20
                                             VII
                                           DAMAGES

       A.      ACTUAL DAMAGES

       Regarding the causes of action and conduct alleged above, Plaintiffs sustained pecuniary

losses that were proximately caused by all of the Defendants’ conduct.            Plaintiffs’ actual

damages exceed the minimum jurisdictional limits of this court. After completion of discovery,

Plaintiffs will amend their pleadings in order to indicate more specifically the damages they have

suffered.

       B.      EXEMPLARY DAMAGES

       Due to all of the Defendants’ gross negligence, breach of fiduciary duty and fraud,

Plaintiffs are entitled to exemplary/punitive damages which they seek herein. Moreover, based

upon Defendants violation of the Texas Penal Code, Section 32.45, punitive damages are not

capped pursuant to Section 41.008 of the Texas Civil Practice and Remedies Code with regard to

these Defendants. Thus, Plaintiffs seek punitive damages to the maximum extent of what the jury

awards.

                                            VIII
                                      DISCOVERY RULE

       To the extent that any party pleads the statute of limitations as a defense, Plaintiffs hereby

assert the provision of the “Discovery Rule” as pronounced by the Texas Supreme Court in

Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988), and would say and show that said suit has been

filed within two years of the Plaintiffs’ knowledge of such facts as would lead a reasonably

prudent person to discover all of the Defendants’ wrongful acts.




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                         PAGE 18 OF 20
                                             IX
                                        JURY DEMAND

        Plaintiffs desire to have a jury decide this case and make this formal request pursuant to

Tex. R. Civ. P. 216. This request is filed more than thirty days before this case has been set for

trial. A jury fee has been tendered herewith in the above entitled and numbered cause.

                                          X
                                REQUEST FOR DISCLOSURE

        Pursuant to Texas Rule of Civil Procedure 194, all of the Defendants are requested to

disclose, within fifty (50) days of service of this request, the information or material described in

Rule 194.2 (a) - (l).

                                               XI
                                             PRAYER

        WHEREFORE, Plaintiffs pray that after trial herein, that judgment be entered against all

of the Defendants jointly and severally as prayed for, that costs of court be taxed against all

Defendants herein, that Plaintiffs be given prejudgment as well as post judgment interest, and for

such other and further relief, at law and in equity to which Plaintiffs may show themselves to be

justly entitled, to which the Court believes Plaintiffs to be deserving, and for which Plaintiffs

will ever pray.




PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                         PAGE 19 OF 20
                                                 Respectfully submitted,

                                                 THE KASSAB LAW FIRM

                                                    / s / Lance Christopher Kassab
                                                    LANCE CHRISTOPHER KASSAB
                                                    Texas State Bar No. 00794070
                                                    lck@texaslegalmalpractice.com
                                                    DAVID ERIC KASSAB
                                                    Texas State Bar No. 24071351
                                                    dek@texaslegalmalpractice.com
                                                    1420 Alabama
                                                    Houston, Texas 77004
                                                    t.713.522.7400
                                                    f.713.522.7410

                                                 DOHERTY✯WAGNER

                                                    / s / Brett Wagner
                                                    BRETT WAGNER
                                                    Texas State Bar No. 20654270
                                                    brett@dwlawyers.com
                                                    LARRY JOE DOHERTY
                                                    Texas State Bar No. 05950000
                                                    larry@dwlawyers.com
                                                    RYAN W. SMITH
                                                    Texas State Bar No. 24063010
                                                    ryan@dwlawyers.com
                                                    13810 Champion Forest Drive, Suite 225
                                                    Houston, Texas 77069
                                                    t.281 583-8700
                                                    f.281 583-8701

                                                 ATTORNEYS FOR PLAINTIFFS


                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 11th day
of August, 2015.


                                                    /s/ Lance Christopher Kassab
                                                    Lance Christopher Kassab



PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE                      PAGE 20 OF 20
Appendix Tab 2
                                              CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ,                                      §     IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND                                    §
OF KAREN MARIEN ANDRADE LOPEZ,                                     §
MAIRET SAMELI ANDRADE LOPEZ                                        §
AND IMAR GERARDO ANDRADE LOPEZ                                     §
ON BEHALF THE ESTATE OF OMAR                                       §
GERARDO ANDRADE LOPEZ, ET AL                                       §
                                                                   §
V.                                                                 §   OF HARRIS COUNTY, TEXAS
                                                                   §
ARNOLD & ITKIN, L.L.P.,                                            §
BECK REDDEN, L.L.P.,                                               §
ALBRITTON LAW FIRM,                                                §
KURT ARNOLD, CORY ITKIN,                                           §
JASON ITKIN, RUSSELL POST,                                         §
FIELDS ALEXANDER, JAS BRAR and                                     §
ERIC ALBRITTON                                                     §     11TH JUDICIAL DISTRICT

            PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE
          JURISDICTION, AND, IN THE ALTERNATIVE, PLEA IN ABATEMENT
TO THE HONORABLE JUDGE MIKE MILLER:

         COME NOW Plaintiffs, Maria Santos Lopez Dominguez, et al., and files this, their

Response to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement,

and would respectfully show as follows:

                                                        I
                                                  INTRODUCTION

         Plaintiffs, Maria Santos Lopez Dominguez, et al., are Mexican nationals and former

clients of Defendants. Defendants are Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason

Itkin (the “Itkin Defendants”), Beck Redden, L.L.P., Russell Post, Fields Alexander, Jas Brar

(the “Beck Redden Defendants”) and Eric Albritton and his law firm Albritton Law Firm (the

“Albritton Defendants”) (collectively “Defendants” or the “Lawyers”).

         Plaintiffs sued the Lawyers for, among other claims, negligence after Plaintiffs’

underlying claims were dismissed. Specifically, Plaintiffs allege that their underlying maritime

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 1 OF 29
claims were wrongfully dismissed because “the Lawyers negligently failed to allege that there

was no available remedy in Mexico, as required to pursue a federal maritime claim under the

Jones Act.”1 “Thus, due to the negligence of the [Lawyers] the only claims remaining were

Plaintiffs’ Mexican claims for civil liability and moral damages.”2 Second, Plaintiffs allege that

the Lawyers allowed Plaintiffs’ remaining underlying claims to be wrongfully dismissed on

forum non conveniens grounds because the Lawyers “wholly failed to argue, among other things,

that Mexico was not an available forum” or that “that Mexican courts were not adequate for

adjudicating the case…”3 Plaintiffs allege that “had the [identified] substantive arguments been

properly asserted by the Lawyers in the response to the forum non conveniens, the outcome of

the underlying case would have been different and the forum non conveniens would not have

been granted by the District Court thereby allowing Plaintiffs’ claims to proceed forward in the

chosen forum.”4 Finally, Plaintiffs allege that with the accident and resulting injuries and deaths

occurring in October of 2007, “the Plaintiffs’ underlying lawsuit may not be refiled in Mexico

because it is now barred by limitations.”5

         The Beck Redden Defendants and the Itkin Defendants both filed the pending Plea to the

Jurisdiction, and, in the Alternative, Plea in Abatement arguing that this lawsuit should be

dismissed because it is not ripe. More specifically, the Lawyers allege that because Plaintiffs’

underlying claims can allegedly be refiled in Mexico, “Plaintiffs have not suffered any concrete

injury” and this case is therefore “premised on contingent and hypothetical events that have not

yet come to pass.”6 Simply put; the Lawyers argue that Plaintiffs must continue to pursue their

underlying claims in Mexico and, upon dismissal, again attempt to have the underlying case


1
  PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
2
  PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
3
  PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
4
  PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 2 OF 29
reinstated in Texas before their legal malpractice claims are ripe for adjudication. The Albritton

Defendants joined in the other Defendants’ pleas to the jurisdiction and requests for abatement.

          The Lawyers’ pleas to the jurisdiction and request for abatement should be denied for at

least the following reasons:

                  The plea to the jurisdiction is premature because it implicates the merits of
                   this lawsuit and there are genuine issue of material fact regarding a
                   disputed jurisdictional facts and, therefore, the trial Court cannot grant the
                   motion to dismiss;
                  Plaintiffs have asserted negligence claims against Defendants for failing to
                   properly assert their federal maritime claims and nothing about Plaintiffs’
                   ability or inability to pursue Mexican law claims in Mexico changes the
                   effect of Defendants’ malpractice related to these claims;
                  Defendants’ negligence in failing to assert and prove the proper
                   substantive arguments in the response to the forum non conveniens caused
                   the District Court to render the decision that it did and had such arguments
                   been properly asserted, the outcome of the underlying case would have
                   been different and, even if the cases could be refiled in Mexico, Plaintiffs’
                   damages would be the difference between the value of the case in Mexico
                   verses the United States;
                  There are genuine issues of material fact as to whether the waiver of
                   limitations would be valid in Mexico as the case law is conflicting on this
                   issue; and
                  Even if a waiver of limitations is valid under Mexico law, the waiver
                   became invalid due to the lapse of time caused by Defendants’ delay in
                   litigating the underlying case and, more importantly, the waiver is void as
                   against public policy under Texas law and thus Plaintiffs’ underlying case
                   may not be refiled in Texas even if a Mexico court denied jurisdiction.

                                                   II
                                          FACTUAL BACKGROUND

          In ruling on this motion, the Court is required to construe the pleadings in the Plaintiffs’

favor. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).




5
    PLAINTIFFS’ SECOND AMENDED PETITION, p. 10-11.
6
    ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                              PAGE 3 OF 29
Accordingly, the factual background will be comprised of Plaintiffs’ most recent petition and,

when necessary, filings from the underlying proceedings.7

         Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile

drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. 8 On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored.9 An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform.10 As a result, twenty two

offshore workers (including two rescuers) died and sixty three others were injured.11 Plaintiffs

were among those injured and/or survivors of those killed in the tragedy.12

         In October of 2008, the Lawyers, on behalf of Plaintiffs, filed various lawsuits in the

United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of American companies including Gulf Coast Marine & Associates, Inc., Schlumberger

Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel Company (the

“underlying lawsuit”).13 In the underlying lawsuit, the Lawyers alleged negligence, gross

negligence, products liability, and wrongful death claims. These Texas corporate defendants

were responsible for making policy, safety, corporate, manufacturing, supervision, and design


7
  Plaintiffs have included the affidavit of their counsel, David Eric Kassab, as Exhibit “G” authenticating the
pleadings from the underlying case as well as other exhibits which may be helpful to the Court’s resolution of the
issues.
8
  PLAINTIFFS’ SECOND AMENDED PETITION, pp. 4-5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 2-3.
9
  PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.
10
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.
11
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.
12
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.
13
   PLAINTIFFS’ SECOND AMENDED PETITION, pp. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                         PAGE 4 OF 29
decisions, in their United States headquarters, that directly affected the events relevant in the

underlying lawsuit.14 More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying

defendants breached their duties by negligently failing to provide a safe working environment,

accurate weather information, proper supervision, proper equipment that was in good repair;

accurate information as to soil conditions and platform placement; and failing to timely engage

in rescue efforts, among other claims.15 Defendants, on Plaintiffs’ behalf, alleged that

Schlumberger and Halliburton were liable for strict products liability for defective design and

manufacture of the safety valves and/or sensors that failed in the underlying incident. Even more

specifically, Defendants alleged that the valve design defect posed an unreasonably dangerous

rate of fouling, a process leading to the buildup of solids which creates a false seal that erodes

with time, significantly increasing the risk of a perilous and incessant oil and gas leak. 16

Defendants also alleged that products in question contained inadequate warnings. Defendants

alleged that these product defects rendered the offending products unreasonably dangerous and,

therefore, Schlumberger and Halliburton were liable for all damages caused thereby without

regard to fault.17 These claims were based on Texas state law, general federal or international

maritime law, including the Jones Act, and Mexican law.18

         The District Court dismissed Plaintiffs’ state law claims with prejudice, finding that they

were preempted by the Jones Act.19 In addition, the District Court dismissed Plaintiffs’ federal

maritime claims because the Lawyers negligently “failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act.”20 This


14
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.
15
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.
16
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.
17
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.
18
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 6-7.
19
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5.
20
   Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                   PAGE 5 OF 29
allegation would have been successful as Section 1916 of the Mexican Civil Code provides for

recovery of only 1/3 of the amount of civil liability.21 Even then, Section 1916 requires to

plaintiff to have “material damages” and is only recoverable for “illegal” conduct on part of the

defendants.22 Moreover, Mexican law only allows the plaintiff to recover from the specific

person responsible for the illegal act.23 Therefore, a Mexico forum would be inadequate to

compensate Plaintiffs. Nonetheless, due to the negligence of Defendants, the only claims

remaining were Plaintiffs’ Mexican claims for civil liability and moral damages.24

         The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case.25 More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute.26 More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum.27 The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.28

         In response, the Lawyers merely argued that all of the underlying defendants were U.S.

companies or citizens and, therefore, the documents and witnesses regarding liability were


21
   Exhibit “C” – Moral Damages in Mexican Law, p. 254.
22
   Exhibit “C” – Moral Damages in Mexican Law, p. 254-255.
23
   Exhibit “C” – Moral Damages in Mexican Law, p. 256.
24
   Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
25
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.
26
   Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
27
   Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                   PAGE 6 OF 29
located in the United States.29 However, the Lawyers wholly failed to argue, among other things,

that Mexico was not an available forum because:

               1. The waiver of the statute of limitations is invalid under Mexican law;

               2. Mexico lacks jurisdiction over United States residents and the unilateral
                  consent by the underlying defendants does not create jurisdiction in
                  Mexico;

               3. Plaintiffs would not be voluntarily choosing the Mexican forum as
                  required under Mexican law; and

               4. Mexico had lost any initial jurisdiction it ever had over the case after the
                  case was initially filed in the United States.30

Additionally, the Lawyers wholly failed to argue and establish, among other things, that Mexican

courts were not adequate for adjudicating the case because:

               1. Mexico does not have procedural safeguards to permit the Plaintiffs to
                  develop their evidence; and

               2. Proceedings in Mexico would not be concluded within a reasonable time
                  frame.31

Plaintiffs allege that, had the foregoing substantive arguments been properly asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum. 32 As

demonstrated below, Defendants have not (and cannot) affirmatively show that “but for” their

failures, the District Court would have ruled the same.




28
     Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
29
     Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 5-6; See also PLAINTIFFS’ SECOND AMENDED PETITION, p.
7.
30
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
31
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
32
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                    PAGE 7 OF 29
         After a hearing on the underlying defendants’ forum non conveniens motion on March

10, 2011, the District Court conditionally granted the motion.33 The granting of the motion

carried five crucial conditions to the survival of Plaintiffs’ claims:

              1. The underlying defendants agree to appear and submit themselves to the
                 jurisdiction of a Mexican federal or state court, waiving any jurisdictional
                 defenses they might normally possess;

              2. The underlying defendants agree to waive any statute of limitations
                 defense that they did not possess as of the date each of the seven cases was
                 originally filed;

              3. The underlying defendants agree to submit to discovery in the Mexican
                 forum in accordance with the procedural rules of the Mexican court;

              4. The underlying defendants agree that they will make all relevant witnesses
                 and documents available in Mexico to the extent consistent with Mexican
                 law;
              5. The underlying defendants agree that they will make any employee
                 witness available for trial in Mexico to the extent consistent with Mexican
                 law.34

The order also carried with it a return jurisdiction clause stating that, “Should the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this

Court may reassert jurisdiction upon timely notification of the same.”35 The Lawyers did not

appeal the May 4, 2011 order.36 Plaintiffs allege that, had the Lawyers appealed this order, the

appeal would have been successful.37 Again, Defendants have not (and cannot) affirmatively

show that “but for” this failure, the appeal would have been unsuccessful.




33
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27.
34
   PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8-9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27.
35
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 27.
36
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.
37
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                  PAGE 8 OF 29
         From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases.38 However, Defendants did not make use of the stipulation to

Mexican jurisdiction the underlying defendants signed as part of the dismissal in the District

Court or otherwise contest the underlying defendant’s resistance to Mexican jurisdiction.39 As a

result, the Mexican courts immediately rejected jurisdiction of the cases.40

         On October 18, 2013, Defendants filed a motion to reinstate Plaintiffs’ case in District

Court arguing that Mexico would not accept jurisdiction over the cases.41 After extensive

briefing, the District Court denied Defendants’ attempt to re-file the cases in Texas and exposed

Defendants’ lack of good faith in great detail, noting that Defendants “filed some, but not all, of

the cases dismissed by Judge Ward in Mexico.”42 Judge Crone continued, “Because counsel

made no attempt to litigate those cases in Mexico in compliance with the court’s Memorandum

and Order, there is no basis upon which to reopen them here.”43 Therefore, with regard to all of

the underlying cases, save and except the eleven that were refiled in Mexico, Plaintiffs allege

that Defendants grossly failed to litigate diligently and in good faith thereby invalidating the

waiver of the statute of limitations.44 Further, as discussed below, the waivers were invalid under

Texas law because they were indefinite and not specific.

         With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.”45 Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge


38
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 3.
39
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5.
40
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5.
41
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 5.
42
   Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.
43
   Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.
44
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 10.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                  PAGE 9 OF 29
Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly.46 Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying

lawsuits.47 The District Court stated that Plaintiffs could “not seek reinstatement in [the District

Court] unless and until they have pursued their claims in Mexico with diligence and good faith,

including seeking final appellate review of any Mexican dismissal order.”48

         Several months after the dismissal, the Itkin Defendants sent out deceitful withdrawal

letters wherein they attempted to conceal and downplay the significance of their wrongdoing and

abandoning Plaintiffs.49 The one bit of truth contained within these letters was Kurt Arnold’s

recognition that the chances of the District Court accepting jurisdiction over the cases in light of

what had occurred was slim. Specifically, Mr. Arnold states: “I think the chances of the Court

accepting the jurisdiction for these cases even after following all steps [and refiling the cases in

Mexico] is remote.”50 Mr. Arnold is accurate as any claim now filed in Mexico would be

dismissed on limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to comply with the initial March 10, 2011 order from the District Court

requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in good


45
   Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.
46
   Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11-15.
47
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; See Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11-
15.
48
   Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 15.
49
   Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.
50
   Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                  PAGE 10 OF 29
faith.51 In fact, as explained below, the waiver was invalid under Texas law to begin with and,

under Mexican law, limitations may only be waived for a certain period of time. Accordingly,

the waivers and stipulations are of no consequence at this late date and, as a result, Plaintiffs’

claims are forever barred in both the United States and Mexico.52

          Immediately after this lawsuit was filed, the Lawyers filed the present pleas to the

jurisdiction arguing that Plaintiffs must continue to pursue their clearly-barred underlying claims

in Mexico and, upon dismissal, again attempt to have the underlying case reinstated in Texas

before their legal malpractice claims are ripe for adjudication. Thus, the Lawyers request the

Court to dismiss this action or, alternatively, abate these proceedings until the filings of the

underlying case have occurred. For the reasons stated herein, Defendants’ pleas to the

jurisdiction and request for abatement should be denied.

                                                III
                                       ARGUMENT & AUTHORITIES

          Ripeness is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000). Ripeness focuses on when an action may be brought. Id. at 851.

“[R]ipeness, like standing, is a threshold issue that implicates subject matter jurisdiction, and like

standing, emphasizes the need for a concrete injury for a justiciable claim to be presented.” Id.

When, as here, a defendant asks a court to dismiss the case for want of subject matter

jurisdiction, the Court must overrule the motion unless the moving parties’ evidence clearly

demonstrates that the court lacks jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). Defendants have utterly failed to carry their burden.




51
     PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 11 OF 29
         A.        DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE
                   IT IMPLICATES THE MERITS OF PLAINTIFFS’ CLAIMS.

         Defendants essentially argue that their conduct caused no damage to Plaintiffs because

the underlying cases can still be refiled in Mexico.53 However, as discussed above, the failure of

Defendants to litigate Plaintiffs’ case in good faith is only one act of negligence at issue.

Plaintiffs have also sued Defendants for failing to properly maintain Plaintiffs’ maritime claims,

failing to properly respond to the forum non conveniens motions and, alternatively, failing to

appeal the District Court’s dismissal of the underlying case.54 Regardless, the malpractice

concerning Defendants’ good faith necessarily implicates the merits of this lawsuit because if the

statute of limitations waiver is void due to Defendants’ failure to litigate the claims in good faith,

then Plaintiffs have been damaged as a result of Defendants’ negligence because the lawsuits

may not be refiled in Mexico.

         The Beck Redden Defendants argue that “there has been no court order…indicating that

the statute of limitations on Plaintiffs’ claims has run, or that the statute of limitations would not

be honored by the Mexican courts.”55 However, a plaintiff in a legal malpractice case who is

suing his attorney for missing a statute of limitations is not required to file the underlying case

anyway in order to obtain a court order stating that the statute of limitations has run on the

plaintiff’s claim. See Rhodes v. Batilla, 848 S.W.2d 833, 842 (Tex. App. – Houston [14th Dist.]

1993, writ denied)(“there was no requirement that [the client] appeal the final assessment by the

IRS in order to establish the open and obvious malpractice committed by appellant…”). Rather,

the plaintiff must prove that his claims are barred (i.e. causation) by way of expert testimony.

Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)(“In


52
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.
53
   See BECK REDDEN DEFENDANTS’ PLEA, p. 7; ITKIN DEFENDANTS’ PLEA, p. 3.
54
   PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8, 11, 13-14.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 12 OF 29
general, one proves causation in a legal malpractice suit by expert testimony.”). Thus, to prove

causation in this case, Plaintiffs must introduce expert testimony to establish that, even if they

would refile the claims in Mexico, they would be dismissed due to the Defendants’ conduct. See

Id. (affirming summary judgment against client because the client “did not offer expert testimony

from which one could infer that the underlying case would have had merit…”); See also

Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex. 2004)(in a legal malpractice case a

jury, with the benefit and guidance of expert testimony, is required to determine whether the

“omitted evidence was different from, and more compelling than, the evidence and testimony

presented [to the underlying judge]” and “whether the result of the underlying …proceeding

would have been different but for the alleged malpractice.”).

          When jurisdictional facts are disputed, the manner in which the trial court analyzes the

jurisdictional challenge depends on whether the disputed jurisdictional fact issues do or do not

implicate the merits of the plaintiff's case. See University of Tex. v. Poindexter, 306 S.W.3d 798,

806-07 (Tex. App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do not

implicate the merits, the court—not the jury—must make the necessary factual findings to

resolve the jurisdictional issue. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). However, when, as here, “the jurisdictional inquiry does implicate the merits of the

plaintiff’s case, a very different standard applies.” Martin v. Nat'l Instruments Corp., 2013 Tex.

App. LEXIS 7021, at *6 (Tex.App. – Austin June 11, 2013, no pet.). “In that instance, the trial

court does not act as a fact-finder.” Id. (emphasis added)(citing Poindexter, 306 S.W.3d at 807

and Miranda, 133 S.W.3d at 227-28). “If the evidence submitted by the parties creates a genuine

issue of material fact regarding a disputed jurisdictional fact, then the trial court cannot grant the

motion to dismiss, and the fact issue must be resolved by the fact-finder at trial.” Id. at *6-*7.

55
     See BECK REDDEN DEFENDANTS’ PLEA, p. 2.
PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 13 OF 29
           At this stage, the Defendants that have the burden to show through their pleas to the

jurisdiction and attached evidence that this Court lacks jurisdiction as a matter of law. Miranda,

133 S.W.3d at 228. The only evidence submitted by Defendants are certain pleadings from the

underlying proceedings and court orders stating that Plaintiffs can allegedly refile their cases in

Mexico.56 Using these exhibits, Defendants argue that the statements in Plaintiffs’ pleadings are

invalid and that Plaintiffs’ underlying claims are not forever barred because Plaintiffs have not

validly attempted to re-assert their claims in the Courts of Mexico and, therefore, jurisdiction is

not conferred upon this Court.57 However, the Texas Supreme Court and the Houston Court of

Appeals have made clear that such an assertion “attacks [the plaintiff’s] right of recovery” and

should be made in a motion for summary judgment, not in a plea to the jurisdiction. See

Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App –

Houston [14th Dist.] 2006, pet. denied)(citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-

77 (Tex. 2000)). “The right of a plaintiff to maintain a suit, while frequently treated as going to

the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief

rather than to the jurisdiction of the court to afford it.” Kazi, 12 S.W.3d at 76-77. Therefore, the

Court should deny Defendants’ pleas to the jurisdiction as they implicate the merits of Plaintiffs’

claims. See Concerned, 209 S.W.3d at 673 (holding it was error for the trial court to dispose of

claims by way of a plea to the jurisdiction rather than a summary judgment when the defendants

alleged that the court lacked jurisdiction because plaintiff had not made a valid open records

claim to confer jurisdiction).




56
     See, e.g., BECK REDDEN DEFENDANTS’ PLEA, at Exhibits, generally.
57
     ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 14 OF 29
          B.       DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE
                   DEFENDANTS’ NEGLIGENCE CAUSED THE DISMISSAL OF PLAINTIFFS’
                   FEDERAL LAW CLAIMS AND THESE CLAIMS CANNOT BE REFILED IN
                   MEXICO.

          Defendants’ sole argument for lack of jurisdiction and/or abatement is based on the false

premise that Plaintiffs’ malpractice claims all relate to their inability to pursue their Mexican law

claims in Mexico. While that is certainly part of Plaintiffs’ negligence allegations against

Defendants, Plaintiffs’ live pleading also alleges that Defendants negligently lost Plaintiffs’

ability to pursue Jones Act claims in the United States by failing to properly plead those claims

and/or competently resist the underlying defendants’ attempts to dismiss Plaintiffs’ underlying

claims.58 Specifically, Plaintiffs allege: “the District Court dismissed Plaintiff’s federal maritime

claims because the Lawyers negligently failed to allege that there was no available remedy in

Mexico, as required to pursue a federal maritime claim under the Jones Act.” 59 Nothing about

Plaintiffs’ ability or inability to pursue Mexican law claims in Mexico changes the effect of

Defendants’ malpractice related to Plaintiffs’ Jones Act claims.

          “The party contesting jurisdiction must meet the summary-judgment standard of proof to

support its contention that the trial court lacks subject-matter jurisdiction.” HSBC Bank USA,

N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012, pet. dism'd). “This means the

movant must support its plea with conclusive evidence establishing facts that defeat

jurisdiction.” Id. “If the movant fails to meet its burden, the claimant has no burden at all, and the

jurisdictional challenge fails.” Id. “The defendant cannot simply deny the existence of

jurisdictional facts and force the plaintiff to raise a fact issue.” Id. (internal quotations omitted).

Even if Plaintiffs could still pursue their Mexican law claims in Mexico, which Plaintiffs deny,

Plaintiffs have forever lost their ability to pursue their Jones Act claims in the United States due


58
     PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                            PAGE 15 OF 29
to the negligence of Defendants. Defendants’ pleas to the jurisdiction are devoid of any

argument, analysis or evidence proving, as a matter of law, that these claims could be refiled in

Mexico. For this reason alone, Defendants’ pleas to the jurisdiction should be denied.

         C.        DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE
                   DEFENDANTS’ NEGLIGENCE CAUSED THE DISTRICT COURT TO DISMISS
                   PLAINTIFFS’ TEXAS CASE IN THE FIRST INSTANCE.

         Defendants’ pleas to the jurisdiction should also be denied because Defendants have not

disproven Plaintiffs’ theory that, had the proper substantive arguments been asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court.60 This theory of malpractice may be simplified by the venerable principle “garbage in,

garbage out.”61 If a court is presented with inaccurate or incomplete evidence and argument it is

going to reach inaccurate conclusions and produce an inaccurate result. See United States v.

Seminerio, 680 F. Supp. 2d 523, 542 (S.D.N.Y. 2010)(noting that ethics opinion was “a classic

illustration of ‘garbage in, garbage out’ because the individual seeking the opinion omitted

material facts in requesting the opinion); See also Moyle v. Liberty Mut. Ret. Benefit Plan, 2013

U.S. Dist. LEXIS 2237 at *7 (S.D. Cal. Jan. 7, 2013)(noting the difficulty of the court in having

to render a ruling because of inadequate and confusing briefing, stating: “[t]he Court has been

asked to rule and it will do so. The result, considering the confusing, incomplete mishmash

before the Court, may be a function of the old adage, ‘garbage in, garbage out.’”); Smith v. ABN

AMRO Mortg. Group, Inc., 2007 U.S. Dist. LEXIS 26585 (S.D. Ohio Mar. 27, 2007)(ordering

pro se plaintiffs to obtain counsel due to the inadequacies of their court filings and recognizing


59
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.
60
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
61
   This principle is most commonly referred to in computer science but is traced back to the philosopher Charles
Babbage: “On two occasions I have been asked,—'Pray Mr. Babbage, if you put into the machine wrong figures,

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                        PAGE 16 OF 29
that, because of this, “the ‘garbage in - garbage out’ computer analogy may characterize the

Court's attempt to render a fair and just verdict.”); Hunt v. Sullivan, 1992 U.S. Dist. LEXIS

13091 at *9 (N.D. Ill. Aug. 31, 1992)(noting that Appeals Counsel’s decision denying

supplemental security income was based on an inadequate record, stating “[t]his was simply the

social security version of what in familiar computer jargon bears the GIGO acronym: ‘Garbage

in, garbage out.’”).

         In articulating this concept with respect to the judicial system, one California court noted

that, while “[t]he federal judicial process is not a GIGO (garbage in, garbage out) system” with

respect to the law – because “a federal judge has the responsibility to make his or her decision

based on the correct law” – it may certainly be so with respect to the facts as “the federal judge is

dependent on the parties to present the competent, credible evidence from which the judge is to

make the required findings of fact.” Cal. Franchise Tax Bd. v. Wilshire Courtyard (In re

Wilshire Courtyard), 2015 Bankr. LEXIS 1172 at *19 (B.A.P. 9th Cir. Apr. 7, 2015)(emphasis

added). In this case, Plaintiffs allege that the Lawyers wholly failed to argue a litany of reasons as

to why Mexican courts were not adequate for adjudicating the case and, had the listed substantive

arguments been properly asserted by the Lawyers in the response to the forum non conveniens, the

outcome of the underlying case would have been different. 62 Simply put, had the Lawyers put forth

competent, credible evidence before the District Court concerning the adequacy of the Mexican

forum rather than allowing the inaccurate “garbage” that was presented to it by the underlying

defendants to go uncontroverted, then the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiffs claims to proceed forward in their chosen forum.63



will the right answers come out?' . . . I am not able rightly to apprehend the kind of confusion of ideas that could
provoke such a question.” Charles Babbage, PASSAGES FROM THE LIFE OF A PHILOSOPHER 67 (1864).
62
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
63
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                            PAGE 17 OF 29
         The Texas Supreme Court has held that, in a legal malpractice case such as this, what

would have happened had proper argument and evidence been submitted in the underlying case

is a fact question for the jury. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex.

2004). Specifically, a jury, with the benefit and guidance of expert testimony, is required to

determine whether the “omitted evidence was different from, and more compelling than, the

evidence and testimony presented [to the underlying judge]” and “whether the result of the

underlying …proceeding would have been different but for the alleged malpractice.” Id. at 118.

Thus, because this Court at this juncture must take Plaintiffs’ pleadings as true, Miranda, 133

S.W.3d at 226, whether the omitted evidence and argument set forth in Plaintiffs’ Petition –

which was omitted from the response filed by the Lawyers in the underlying case – “was

different from, and more compelling than, the evidence and testimony presented” to the courts in

the underlying case and whether the District Court would have ruled differently had this

evidence and argument been presented are all fact issues for the jury. See Alexander 146 S.W.3d

at 118 (in legal malpractice case, jury was charged with deciding whether, in reasonable

probability, a bankruptcy judge would have decided the underlying adversary proceeding

differently, absent the alleged malpractice). Accordingly, Defendants’ pleas to the jurisdiction

are without merit.

         D.        DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE
                   NEITHER A MEXICO NOR A TEXAS COURT WILL ACCEPT JURISDICTION OF
                   THE UNDERLYING CASE AS THE CLAIMS ARE BARRED BY LIMITATIONS.

         Defendants argue that dismissal is appropriate because Plaintiffs’ malpractice claims are

not yet ripe as “Plaintiffs have not suffered any concrete injury” and the question of whether a

Mexico court will still accept jurisdiction over Plaintiffs’ claims “is a hypothetical one at this




PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 18 OF 29
point.”64 To support this argument, Defendants claim that Texas courts have “determined that

statute of limitations defenses can be waived under Mexico law” and cite Seguros Comercial

Ams. S.A. De C.V. v. American President Lines, 933 F. Supp. 1301 (S.D. Tex. 1996) as support.

Yet, in Seguros, the plaintiff’s expert did not provide the court with any authority for its position

that waivers of limitations were invalid under Mexican law. Id. at 1308. Thus, that court never

analyzed Mexican law in this regard or considered the overall validity of the waivers. See Id.

          The Beck Redden Defendants also cite to Zermeno v. McDonnell Douglas Corp., 246 F.

Supp. 2d 646 (S.D. Tex. 2003) and Dominguez-Cota v. Cooper Tire & Rubber Co., 284 F. Supp.

2d 444 (N.D. Miss. 2003) to support their wavier of limitations argument.65 Like the court in

Seguros, however, neither the courts in Zermeno nor Dominguez-Cota truly analyzed the ability

to waive limitations under Mexican law. See Zermeno, 246 F. Supp. 2d at 658 (holding

stipulation to waive limitations is valid under Mexican law without any analysis); see also

Dominguez-Cota, 284 F. Supp. 2d at 448 (holding same).

          On the other hand, in the more recent Texas federal case Sacks v. Four Seasons Hotel

Ltd., 2006 U.S. Dist. LEXIS 17768 (E.D. Tex. Mar. 7, 2006), the court denied the defendants’

motion to dismiss on forum non conveniens based, in part, on the plaintiff’s Mexican law

experts’ properly supported testimony that waivers of limitations are meaningless in Mexico. Id.

at *18. In Sacks, the plaintiff sued a Four Seasons hotel in Mexico for the death of her husband.

Id. at *2-3. The hotel sought to dismiss the action on forum non conveniens grounds and, like the

underlying defendants, agreed to waive any defense of limitations. Id. at *10. In denying the

hotel’s motion, the Sacks court considered Mexican law as supported by plaintiff’s Mexican law

expert and recognized that “stipulations made before a United States court to waive the Mexican


64
     ITKIN DEFENDANTS’ PLEA, p. 6.
65
     BECK REDDEN DEFENDANTS’ PLEA, p. 5-6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                          PAGE 19 OF 29
statute of limitations are meaningless in Mexico.” Id. at *18. Thus, the Sacks court found that

the case could not be refiled in Mexico because it was past the statute of limitations and,

therefore, the plaintiff did not have an adequate remedy under Mexican law. See Id. Accordingly,

more recent Texas case law indicates that, when properly and/or competently challenged with

reference to evidence and Mexican law, waivers of limitations are ineffective as a basis for

granting a forum non conveniens.

         In fact, the underlying defendants’ waiver of limitations is invalid under Texas law and,

therefore, Plaintiffs may not refile their underlying case in Texas or anywhere else because the

claims are past the statute of limitations – thereby rendering a “concrete injury” to Plaintiffs. In

Texas, parties may agree to waive the statute of limitations before or after the statutory bar has

fallen. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 280-281 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied); Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex. App.--Austin

1996, no writ); American Alloy Steel v. Armco, Inc., 777 S.W.2d 173, 177 (Tex. App. – Houston

[14th Dist.] 1989, no writ); However, “[a] general agreement in advance to waive or not to plead

the statute of limitations on a particular obligation is void as against public policy.” Segal, 155

S.W.3d at 281; American Alloy, 777 S.W.2d at 177. Rather, “[t]he agreement must be specific

and for a pre-determined length of time.” Segal, 155 S.W.3d at 281. The same rule applies under

Federal law. Lett v. Crown Cork & Seal Co., 2015 U.S. Dist. LEXIS 14627, at *9-*10, at n. 2

(N.D. Tex. Feb. 5, 2015).

         Intentionally ignoring the foregoing authority, Defendants contend that dismissal is

appropriate because Plaintiffs can still allegedly refile their claims in Mexico or, if the Mexican

courts refuse jurisdiction, the District Court, because “the underlying defendants … have filed a

binding stipulation in Federal Court stating that they have waived any argument that the statute



PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 20 OF 29
of limitations on those claims have expired.”66 However, the alleged stipulation concerning the

statute of limitations in the underlying case did not meet the criteria for an effective tolling. The

stipulation merely stated “Defendants agree to waive any statute of limitations or laches defense

that they did not possess as of the date this lawsuit was originally filed.”67 The sentence is not

specific and does not provide a pre-determined length of time for a tolling period. See Duncan,

912 S.W.2d at 859; Lett, 2015 U.S. Dist. LEXIS 14627, at *9-*10. Therefore, as a matter of

Texas law, Plaintiffs would not be entitled to a tolling of the statute for an undetermined period

of time. See Hoff v. Texas Med. Liab. Trust, 1998 Tex. App. LEXIS 2219, at *8 (Tex.App. –

Austin Apr. 16, 1998, pet. denied)(affirming summary judgment on statute of limitations ground

because a waiver of limitations was void as against public policy because it was not specific and

did not provide for a pre-determined length of time). Accordingly, with the incident occurring on

October 23, 2007, the statute of limitations on Plaintiffs’ underlying claims have clearly lapsed

and the waiver of limitations is invalid as a matter of law. See Id.

         The waiver of limitations does not fare any better under Mexican law. Plaintiffs’

underlying personal injury claims arise out of a maritime accident that occurred in Mexican

territorial waters, those claims are governed by Mexican federal law, including the Federal Civil

Code.      MEXICAN CONSTITUTION, Art. 27; MEXICAN FEDERAL CIVIL CODE, Art. 1.68 The

limitations period applicable to Plaintiffs’ claims is 2 years from the date on which the injury

occurred. MEXICAN FEDERAL CIVIL CODE, Art. 1934. In this case, absent the filing of any suit,

limitations would have run on Plaintiffs’ claims on October 23, 2009, the second anniversary of

the accident. Id. While the Mexican Federal Civil Code provides that the running of limitations


66
   ITKIN DEFENDANTS’ PLEA, p. 2.
67
   Exhibit “F” – Stipulation, p. 1.
68
   For the Court’s convenience, Plaintiffs have attached English and Spanish versions of the applicable Mexican
statutes and codes referred to herein as Exhibit “E”.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                       PAGE 21 OF 29
may be tolled by the commencement of any action of which the potentially liable party receives

notice, the code also provides that there is no tolling of limitations if the judicial proceeding that

initially tolled limitations is dismissed. See MEXICAN FEDERAL CIVIL CODE, Art. 1168. Applied

literally, Judge Ward’s dismissal of the underlying case in May 2011 had the effect under

Mexican law of stripping Plaintiffs of the benefit of tolling. In other words, by virtue of the 2011

dismissal, Plaintiffs’ Mexican law claims would be deemed to have been barred by limitations as

of October 23, 2009 unless a Mexican court would accept the underlying defendants’ waiver of

limitations.

         While there is some question as to whether a Mexican court would even accept a waiver

of limitations made before a United States court, see Sacks, 2006 U.S. Dist. LEXIS 17768 at *18,

the Mexican Federal Code does seem to provide a proper way for a party to renounce or waive

limitations in Mexico. See MEXICAN FEDERAL CIVIL CODE, Art. 1141. Article 1141 of the

Mexican Federal Civil Code provides:

         Las personas con capacidad para enajenar pueden renunciar la prescripción
         ganada, pero no el derecho de prescriber para lo sucesivo.

Professor Jorge Vargas, in what is viewed as a leading, authoritative translation of the Mexican

Federal Civil Code, translates Article 1141 as follows:

         Any person who has the capacity to convey may renounce the limitations period
         attained, but not the right of adverse possession to accrue in the future.

Jorge A. Vargas, MEXICAN CIVIL CODE ANNOTATED – BILINGUAL EDITION 431 (West 2009)

(emphasis added). The maximum limitations period that can be “attained” is two years for the

claims at issue in the underlying case. MEXICAN FEDERAL CIVIL CODE, Art. 1934. Therefore,

even assuming that a waiver of limitations is valid and appropriately obtained under Mexican

law, the underlying defendants would have had to waive limitations in a Mexican court prior to



PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 22 OF 29
October 23, 2011. Because Defendants did not refile Plaintiffs’ underlying cases in Mexico until

February 2013, Plaintiffs’ claims were subject to a limitations defense by this date that could no

longer be waived in Mexico and the contention that the underlying defendants’ statute of

limitations waivers would still be honored by the Mexican courts in 2015 is incorrect. See

MEXICAN FEDERAL CIVIL CODE, Art. 1141. Thus, Plaintiffs’ Mexican law claims may not be

refiled in Mexico and, with Plaintiffs’ United States claims being irretrievably lost due to

Defendants’ negligence, these claims are also forever barred.

         The Defendants urge this Court to dismiss this action and require Plaintiffs – Mexican

nationals with little or no means and all of whom suffered injury or loss due to the underlying

tragedy – to locate and obtain a Mexican law firm to attempt to pursue their now stale claims

against the underlying defendants. The Lawyers argue that, because Plaintiffs have not done so,

“Plaintiffs’ claimed injury has not and may never occur and consequently, is based entirely on

contingent and hypothetical facts.”69 As support, Defendants cite the Court to two Dallas cases:

Rothrock v. Akin, Gump, Hauer & Feld, 1994 Tex. App. LEXIS 3526 (Tex.App. – Dallas May

11, 1994, no pet.) and Philips v. Giles, 620 S.W.2d 750 (Tex. Civ. App.—Dallas 1981, no writ).

However, not only are Rothrock and Philips distinguishable from the present case, but the

proposition in these cases – that a cause of action for malpractice does not accrue until a

deficiency is assessed – is contrary to Houston Court of Appeals precedent which this Honorable

Court must follow. See Rhodes, 848 S.W.2d at 842.

         In Rhodes, the client sued her attorney for gross negligence in connection with the

client’s tax defense from the IRS. Id. at 837. The attorney argued – similar to Defendants in this

case – that the claim was premature because “she had not exhausted her administrative or

judicial remedies prior to bringing this action.” Id. at 842. Rejecting this argument, the Houston



PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 23 OF 29
Court of Appeals made clear that “there was no requirement that [the client] appeal the final

assessment by the IRS in order to establish the open and obvious malpractice committed by [the

lawyer].” Id.; See also Estate of Jobe v. Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana

2014, no pet.)(distinguishing Philips and holding that malpractice claim may accrue even before

tax penalties are assessed). Defendants’ request for this Court to require Plaintiffs to refile their

clearly already barred claims in Mexico and, later, the District Court (and potentially be subject

to sanctions under Federal Rule of Civil Procedure 1170) is out of line with the law set forth in

Rhodes, Berry and other malpractice cases which do not require a malpractice plaintiff to appeal

decisions or otherwise file lawsuits elsewhere to establish the “open and obvious” malpractice of

Defendants. See Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 785-86

(Tex. 2006)(in malpractice action involving estate planning, cause of action for malpractice

accrued when attorney committed negligent act, not when estate suffered the tax consequences of

that act).

         Texas law has made clear that a cause of action for malpractice accrues “when facts have

come into existence that authorize a claimant to seek a judicial remedy”. Apex Towing Co. v.

Tolin, 41 S.W. 3d 118, 120 (Tex. 2001). “[A] cause of action accrues when a wrongful act causes

some legal injury, even if the fact of injury is not discovered until later, and even if all resulting

damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A legal malpractice

claim is governed by the limitations period prescribed in Section 16.003(a) of the Texas Civil

Practices & Remedies Code because it is considered a claim for personal injury. Estate of Degley

v. Vega, 797 S.W.2d 299, 302-303 (Tex.App. – Corpus Christi 1990, no writ). Section 16.003(a)



69
 BECK REDDEN DEFENDANTS’ PLEA, p. 7.
70
 See Comer v. Interstate United Corp., 119 F.R.D. 392, 393 (N.D. Ill. 1988) (sanctioning attorney under Federal
Rule of Civil Procedure 11 for filing a frivolous pleading because a cursory investigation of documents contained in

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                        PAGE 24 OF 29
states that “a person must bring suit for … personal injury … not later than two years after the

day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.003(a). Thus, the legal

malpractice claims in this case accrued when Plaintiffs suffered some injury and Plaintiffs have a

legal right to file this lawsuit now. A dismissal under these circumstances merely rewards and

incentivizes Defendants dilatory and negligent acts in failing to properly handle Plaintiffs’

underlying claims from the beginning of their representation until they belatedly terminated the

representation.

         E.        DEFENDANTS’ REQUEST FOR ABATEMENT SHOULD ALSO BE DENIED.

         In the alternative, and despite their own failures to comply with the District Court’s

orders over the last several years, Defendants request this Court to abate this case to “wait and

see if Plaintiffs follow through on the federal district courts’ orders…”71 In support of their

request for abetment, Defendants cite primarily to Philips v. Giles, 620 S.W.2d 750 (Tex. Civ.

App.—Dallas 1981, no writ) and In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462

(Tex.App. – Fort Worth 2012, orig. proceeding). Both Philips and Tex. Collegiate are

distinguishable and the circumstances of this case do not warrant abatement.

         In Philips, a wife's ex-husband, as part of a negotiated divorce settlement, executed a

promissory note in her favor for $500,000.00 as compensation for her community property

interest in a jointly-owned business. Id. at 750. The wife’s attorney told her that there would be

no tax consequences arising from a divorce settlement with her ex-husband, including the note

payments. Id. The wife’s accountant disagreed and encouraged her to file income tax returns

which reported the monthly note payments from her ex-husband as income. Id. Relying on the

accountant’s advice, the wife filed the tax returns and sued the defendant for legal malpractice.


plaintiff’s file irrefutably demonstrated that he had not filed his suit within set time limits or, at best, plaintiff's
attorney failed to conduct reasonable investigation before filing suit).

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                                 PAGE 25 OF 29
Id. However, the IRS never assessed any taxes on the money and had not made a determination

at the time suit was filed that the note payments were income. Id. The Dallas Court of Appeals

ruled that the trial court correctly abated the case because the suit for malpractice was premature,

no damages had been established, and it was possible that none would ever be established. Id. at

750. Simply put, there was no certainty of any injury-causing conduct on the part of the attorney.

See Id.

           First, Philips has been severely criticized by the Fifth Circuit Court of Appeals for

placing the client in a discriminating situation:

           Our trouble with this decision is on two levels. First, the court placed the taxpayer
           in an unfortunate “catch-22”. She could choose to pay the IRS the money she
           thinks she owes without being able to recover from the party whose acts caused
           her to owe this liability, or she can deliberately defy the tax code by refusing to
           pay what she perceives to be her full tax liability. This is not a fair choice for the
           taxpayer because, either way, she loses.

State Farm Life Ins. Co. v. Swift (In re Swift), 129 F.3d 792, 800 (5th Cir. Tex. 1997). The court

in Swift also criticized Philips for prematurely dismissing the case for lack of damages contrary

to well-established law concerning the discovery rule:

           We also find the decision troubling in that the court dismissed the suit because of
           a lack of damages when there was a genuine issue of fact concerning the existence
           of damages. As [sic] such an early stage, it was premature for the court to make
           the assumption.

Id. Indeed, the Texarkana Court of Appeals recently noted that “Philips does not stand for the

idea that an injury cannot be discovered until a penalty is actually assessed” because “[s]uch a

holding would be contrary to the caselaw regarding the discovery rule…” Estate of Jobe v.

Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana 2014, no pet.).

           Second, the facts of this case are distinguishable from Philips. As discussed above, the

Lawyers’ failures concerning the Jones Act claims was injury-causing conduct because it

71
     ITKIN DEFENDANTS’ PLEA, p. 8-9.
PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                              PAGE 26 OF 29
immediately damaged Plaintiffs as these claims were immediately lost. Plaintiffs cannot refile

these claims in Mexico because these claims do not exist under Mexican law. Likewise,

Defendants failure to litigate the cases in Mexico in good faith and subsequent lapse of the

statutes of limitations in both Texas and Mexico has now prevented the cases from being refiled

in Mexico or Texas. Accordingly, unlike the yet-to-be-determined damages at issue in Philips,

Plaintiffs have suffered concrete damages and abatement is inappropriate. See Rhodes, 848

S.W.2d at 842.

         Moreover, unlike the parties in this case, the parties in Tex. Collegiate “acknowledge[d]

that the statute of limitations [was] not at issue…” Tex. Collegiate, 367 S.W.3d at 465.

Furthermore, unlike the situation in Tex. Collegiate where the malpractice claims “may have no

merit upon final resolution” of the underlying litigation, the Plaintiffs’ malpractice claims at

issue in this case concerning the Jones Act claims, the failure to appeal the District Court’s order

and the failure to prosecute the claims in good faith leading to the lapsing of the statute of

limitations will have merit irrespective of whether the claims are refiled in Mexico. Accordingly,

abatement is not appropriate.

                                                   IV
                                           CONCLUSION & PRAYER

         The damages at issue are not contingent upon the refiling of the underlying case in

Mexico. Several instances of negligence plead in Plaintiffs’ current pleadings exist whether the

claims are refiled or not. Moreover, the waivers of limitations are invalid under Texas and

Mexico law because they are void against public policy or because of Defendants’ negligence in

failing to timely and diligently prosecute these cases in Mexico. Plaintiffs’ claims against

Defendants accrued when these acts of negligence occurred and Plaintiffs are not required to file




PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 27 OF 29
untimely lawsuits elsewhere to establish the “open and obvious” malpractice of Defendants.

Simply put; Plaintiffs’ claims are ripe for adjudication and should proceed as filed.

         WHEREFORE, Plaintiffs pray that the Court deny Defendants’ Pleas to the Jurisdiction

and Alternative Pleas in Abatement and grant Plaintiffs any further relief, at law and in equity to

which Plaintiffs may show themselves to be justly entitled, to which the Court believes Plaintiffs

to be deserving, and for which Plaintiffs will ever pray.

                                                              Respectfully submitted,

                                                              THE KASSAB LAW FIRM

                                                                   / s / David Eric Kassab
                                                                   LANCE CHRISTOPHER KASSAB
                                                                   Texas State Bar No. 00794070
                                                                   lck@texaslegalmalpractice.com
                                                                   DAVID ERIC KASSAB
                                                                   Texas State Bar No. 24071351
                                                                   dek@texaslegalmalpractice.com
                                                                   1420 Alabama
                                                                   Houston, Texas 77004
                                                                   t.713.522.7400
                                                                   f.713.522.7410

                                                              DOHERTY✯WAGNER

                                                                   / s / Brett Wagner
                                                                   BRETT WAGNER
                                                                   Texas State Bar No. 20654270
                                                                   brett@dwlawyers.com
                                                                   LARRY JOE DOHERTY
                                                                   Texas State Bar No. 05950000
                                                                   larry@dwlawyers.com
                                                                   RYAN W. SMITH
                                                                   Texas State Bar No. 24063010
                                                                   ryan@dwlawyers.com
                                                                   13810 Champion Forest Drive, Suite 225
                                                                   Houston, Texas 77069
                                                                   t.281 583-8700
                                                                   f.281 583-8701

                                                              ATTORNEYS FOR PLAINTIFFS


PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                   PAGE 28 OF 29
                                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 12th day
of August, 2015.

                                                                   /s/ David Eric Kassab
                                                                   David Eric Kassab




PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 29 OF 29
Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 1 of 27 PageID #: 4642

                                                                            EXHIBIT "A"
                                              IN THE UNITED STATES DISTRICT COURT
                                               FOR THE EASTERN DISTRICT OF TEXAS
                                                         LUFKIN DIVISION

 MARIA SANTOS LOPEZ DOMINGUEZ                                   §
 Individually and next friend of KAREN                          §
 MARLEN ANDRADE LOPEZ, et al,                                   §
        Plaintiffs,                                             § CIVIL ACTION NO. 9:08-cv-200 (TJW)
                                                                §
 v.                                                             §
                                                                §
 GULF COAST MARINE & ASSOCIATES,                                §
 INC, et al,                                                    §
        Defendants.                                             §

                                                  MEMORANDUM OPINION AND ORDER

               Pending before the Court is Defendants’ Consolidated Motion to Dismiss for Forum Non

 Conveniens (Dkt. No. 196 in Case No. 9:08cv200).                        On September 15, 2010, the Court

 consolidated the following seven cases for the limited purpose of briefing and deciding the

 common forum non conveniens issue in each case: Dominguez v. Gulf Coast Marine & Assoc.,

 Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv150; Friaz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf

 Coast Marine & Assoc., Inc., et al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine &

 Assoc., Inc., et al., Case No. 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al.,

 Case No. 9:09cv164; De La Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv167 (Dkt. No. 196 in Case No. 9:08cv200).1 The cases all arise out of the same accident

 and involve virtually identical causes of action against the same defendants.2 Pursuant to the

 Court’s Order, Defendants Schlumberger Technology Corporation (“STC”), Schlumberger


 
 1
   The Order is Dkt. No. 63 inCase No. 9:09cv150, Dkt. No. 87 in Case No. 9:09cv162, Dkt. No. 83 in Case No.
 9:09cv156, Dkt. No. 77 in Case No. 9:09cv170, Dkt. No. 51 in Case No. 9:09cv164, and Dkt. No. 100 in Case No.
 9:09cv167.
 2
    Glen Carter is a defendant in Case Nos. 9:08cv200, 9:09cv164, and 9:09cv167, but has been dismissed from Case
 Nos. 9:09cv150, 9:09cv156, 9:09cv162, and 9:09cv170.

                                                                1
 
Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 2 of 27 PageID #: 4643



 Limited (“SL”) (collectively, Schlumberger), Gulf Coast Marine & Associates (“Gulf Coast”),

 Glen Carter (“Carter”),3 Halliburton Energy Services, Inc., f/k/a Halliburton Company

 (“Halliburton”),                     and           Matthews-Daniel   Company   (“Matthews-Daniel”)   (collectively,

 “Defendants”) filed a consolidated motion to dismiss all seven consolidated cases for forum non

 conveniens. The Court held a hearing on Defendants’ consolidated motion on March 10, 2011.

 Having considered the parties’ arguments, the applicable law, and the evidence presented, the

 Court CONDITIONALLY GRANTS Defendants’ Consolidated Motion to Dismiss for Forum

 Non Conveniens (Dkt. No. 225 in Case No. 9:08cv200). The Court FURTHER ORDERS that,

 subject to a return jurisdiction clause and the other conditions laid out in this order, the following

 seven cases be dismissed for forum non conveniens: Dominguez v. Gulf Coast Marine & Assoc.,

 Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv150; Friaz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf

 Coast Marine & Assoc., Inc., et al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine &

 Assoc., Inc., et al., Case No. 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al.,

 Case No. 9:09cv164; De La Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv167.

     I.        Factual Background

               These cases are based on an accident that occurred on a mobile drilling rig and oil

 production platform just north of the Mexican coast in the Gulf of Campeche on October 23,

 2007. On October 21, 2007, the drilling rig Usumacinta was moved alongside the KAB-101

 production platform to begin work on several oil wells in Mexican territorial waters,

 approximately 18 kilometers off the coast in the Bay of Campeche. Mexico’s state-owned oil

 
 3
  Defendant Glen Carter was named in the Motion, but was left out of the ECF filing caption. Glen Carter then filed
 an adoption and joinder in the consolidated motion (Dkt. No. 227).

                                                                      2
 
Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 3 of 27 PageID #: 4644



 company, Petróleos Mexicanos (“PEMEX”), owned the KAB-101 platform, and Perforadora

 Central, a Mexican company, owned the Usumacinta rig and leased it to PEMEX. Plaintiffs are

 all Mexican residents, and they, or their decedents, were employed by Perforadora Central,

 PEMEX, or PEMEX contractors Central de Desarrollos Marinos, S.A. de C.V. and Sercomsa,

 S.A. de C.V. (Servicios Comodatarios), to assist on the rigs.

        On October 23, 2007, the Bay of Campeche was engulfed in hurricane-level conditions

 when a cold front moved into the Bay. The Usumacinta rig shifted positions during the storm

 and struck the KAB-101 platform, damaging one of the oil wells’ production valve trees and

 causing a hydrocarbon leak. After efforts to control the leak failed, Plaintiffs allege that PEMEX

 ordered the evacuation of the platform and drilling rig. The workers boarded two lifeboats,

 known as mandarinas, which PEMEX owned and operated. While in the water, the mandarinas,

 began taking on water and sustained damage in the rough water.           Some of the occupants

 abandoned the mandarinas, both of which eventually capsized. Once the storm subsided, a

 search was undertaken and 68 people were rescued. However, 22 people died as a result of the

 accident.

        Plaintiffs allege that the accident was set into motion when Defendant Matthews-Daniel,

 a United States company based in Texas, approved the decision to move the Usumacinta rig next

 to the KAB-101 platform in near-hurricane-force winds and anchor it to the seafloor next to the

 rig. According to Plaintiffs, Matthews-Daniel had been hired to assess the suitability of the

 seabed and erroneously certified it as “virgin,” based on outdated information. Plaintiffs allege

 that a prudent operator would have done a proper analysis of the seafloor and discovered that

 previous operations had penetrated the seafloor, making it unstable. When the Usumacinta rig

 was moved alongside the KAB-101 platform, the unstable seafloor shifted and caused the rig to



                                                 3
 
Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 4 of 27 PageID #: 4645



 settle and collapse onto the KAB-101 platform. This collision, in turn, caused the hydrocarbon

 leak.

         Plaintiffs further allege that Defendant Gulf Coast, a U.S. company, and Defendant

 Carter, a U.S. resident, were responsible for moving the Usumacinta rig into location and

 anchoring it to the seabed alongside the KAB-101 platform. Plaintiffs claim that Gulf Coast and

 Carter did so without “variable loads”—i.e., adequate loads to maintain the stability of the rig—

 in near hurricane-force winds. Plaintiffs contend that Gulf Coast and Carter should have paid

 closer attention to the weather conditions and should have known that the Usumacinta’s stability

 without a variable load was inadequate for serious weather conditions.

         Finally, Plaintiffs assert that one or both of the subsurface safety valves on the KAB-101

 platform were faulty, failed to cut off the leak, and forced the evacuation of the platform.

 According to Plaintiffs, the valves were intended to stop the flow of oil and gas should anything

 hit the well below or above the water, but the valves failed to seal the oil and gas leak. Plaintiffs

 allege that the valves were designed, manufactured, and installed by Defendants Schlumberger

 and/or Halliburton in the United States. Plaintiffs claim that Schlumberger’s witnesses on the

 design and manufacture of its valve reside in Rosharon and Houston, Texas, and Plaintiffs

 presume that Halliburton’s witnesses reside in Dallas, Texas.

         Numerous investigations of the accident occurred in Mexico.            The most important

 investigation for purposes of the motion to dismiss was a root cause analysis done by Battelle

 Memorial Institute (the “Battelle Report”), which was sponsored by PEMEX. The Battelle

 Report concluded that numerous U.S. companies, including the Defendants in these cases, were

 ultimately responsible for the accident.      Most, if not all, of Plaintiffs’ allegations against

 Defendants are based on the conclusions drawn in the Battelle Report.



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               Plaintiffs’ original complaints in the consolidated cases asserted negligence, gross

 negligence, products liability, and wrongful death claims against various defendants under

 general federal or international maritime law or, in the alternative, under Texas law or the

 relevant law of Mexico. The Court dismissed Plaintiffs’ state law claims with prejudice because

 they were preempted by the Jones Act. In addition, the Court dismissed Plaintiffs’ federal

 maritime claims without prejudice because Plaintiffs failed to alleged that there was no available

 remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act. In their

 amended complaints, Plaintiffs abandoned their federal maritime claims and alleged only state

 law claims and claims under Mexican law. The Court then dismissed, again, Plaintiffs’ state law

 claims as being preempted by the Jones Act. Accordingly, the only claims remaining are

 Plaintiffs’ Mexican law claims for civil liability and moral damages.4

               Defendants argue that Mexico is a more appropriate forum for the adjudication of these

 claims because the cases arise out of the collision of a mobile drilling rig and oil platform in

 Mexican territorial waters during the production of Mexican oil and gas resources. Additionally,

 all of the plaintiffs are Mexican residents and they, or there decedents, were all employed by

 Mexican companies. Defendants argue that because Plaintiffs make claims under Mexican law,

 arising from events that occurred within the jurisdiction of the Mexican courts and involving

 Mexican residents and companies, Mexico is the appropriate forum for adjudicating the claims.

 Defendants also argue that the witnesses and documents regarding the accident and subsequent

 investigation are all located in Mexico. Plaintiffs, however, argue that all of the remaining


 
 4
  Plaintiffs’ claims are identical in every case except for the De La Cruz case, Case No. 9:09cv167. In that case,
 Plaintiffs’ amended complaint included claims under Texas state law, OSHA, DOSHA, Mexican law, and several
 international treaties. See De La Cruz Amended Complaint, ¶¶ 48-93 (Dkt. No. 200). In an Order dated March 7,
 2011, the Court dismissed the De La Cruz plaintiffs’ state law claims, federal maritime law claims, and the
 plaintiffs’ claims under OSHA, DOSHA, and various international conventions and treaties (Dkt. No. 152). As a
 result, only the plaintiffs’ claims under Mexican law survived.

                                                                5
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 Defendants are U.S. companies or citizens and that they made policy, safety, corporate,

 manufacturing, supervision, and design decisions in the United States that directly led to the

 events at issue in the action. Therefore, according to Plaintiffs, the documents and witnesses

 regarding liability are located in the United States.

     II.   Analysis

           In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and

 Koster v. American Lumbermens Mutual Casulty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067

 (1947), the Supreme Court established the principle “that a court may resist imposition upon its

 jurisdiction even when jurisdiction is authorized.” Gulf Oil, 330 U.S. at 507. Therefore, “[t]he

 doctrine of forum non conveniens rests upon a court's inherent power to control the parties and

 cases before it and to prevent its processes from becoming an instrument of abuse or injustice.”

 In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1153-54 (5th Cir.1987)(en banc),

 vacated by Pan Am. World Airways, Inc. V. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d

 400 (1989), reinstated except as to damages by Air Crash Disaster v. Pan Am. World Airways,

 Inc., 883 F.2d 17 (5th Cir.1989)(en banc). According to the Court, in deciding whether to

 exercise or decline jurisdiction, “the ultimate inquiry is where trial will best serve the

 convenience of the parties and the ends of justice.” Koster, 330 U.S. at 527. “The determination

 of what is most convenient rests upon several private and public factors which the Court stated

 should be considered and balanced by a court when presented with a motion to dismiss for forum

 non conveniens.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1162. “A defendant

 of course bears the burden of invoking the doctrine and moving to dismiss in favor of a foreign

 forum.”     Id. at 1164.   “This burden of persuasion runs to all elements of the forum non

 conveniens analysis,” including demonstrating that an “adequate and available forum exists as to



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 all defendants if there are several.” Id. If the defendant meets this initial burden, “it must also

 establish that the private and public interests weigh heavily on the side of trial in the foreign

 forum.” Id. The Supreme Court has held that a moving defendant need not submit overly

 detailed affidavits to carry its burden, but it “must provide enough information to enable the

 district court to balance the parties’ interests.” Reyno, 454 U.S. at 258.


        In Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981),

 the Supreme Court reaffirmed that the principles enunciated in Gulf Oil and Koster are

 appropriate for use in diversity cases. The decision of whether to grant or deny a motion to

 dismiss for forum non conveniens is within the discretion of the court. In re Air Crash Disaster

 Near New Orleans, 821 F.2d at 1165.          The decision “should be an exercise in structured

 discretion founded on a procedural framework guiding the district court's decisionmaking

 process.” Id. The denial of a motion to dismiss for forum non conveniens may be reversed only

 when there has been a clear abuse of discretion. Reyno, 454 U.S. at 255. The trial court's

 decision “deserves substantial deference” when the court has considered all relevant factors and

 where its balancing of the factors is reasonable. Id.

     A. Available and Adequate Alternative Forum

        Prior to balancing the private and public interest factors, a court must first determine

 whether another adequate forum is available to hear the case “because the forum non conveniens

 presupposes the existence of at least two forums in which all defendants are amenable to

 process.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1164. An alternative forum

 is available, for purposes of a forum non conveniens analysis, when the entire case and all parties

 can come within the jurisdiction of that forum. Saqui v. Pride Central America, LLC, 595 F.3d

 206, 211 (5th Cir. 2010).


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               An alternative forum is adequate, for purposes of forum non conveniens analysis, 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. Saqui, 595 F.3d at 212.

 Additionally, 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 that Mexican courts are an

 inadequate alternative forum. Id. The Supreme Court has made it clear that the Court may not

 give substantial weight to the fact that trail in a foreign forum will result in a change in law

 unfavorable to the plaintiff or the fact that the defendants may be motivated by a desire to obtain

 a more favorable forum in bringing the motion to dismiss for forum non conveniens. Id. at 252-

 52 and n. 19.

               Because the Defendants have agreed to submit to the jurisdiction of the Mexican courts,

 Plaintiffs concede that Mexico is an available and adequate forum for the adjudication of these

 claims.5 See In re Ford Motor Co., 591 F.3d 406, 412 (5th Cir. 2009).



 
 5
   Plaintiffs’ consolidated briefing in response to the motion to dismiss for forum non conveniens concedes that
 Mexico is an available and adequate forum for these cases. Plaintiffs also conceded that they were not challenging
 the adequacy or availability of the Mexican courts as an alternative forum during their oral argument at the hearing
 on the motion to dismiss. Counsel for plaintiffs in Case No. 9:09cv167 (the “De La Cruz Plaintiffs”) appeared at the
 hearing and made a passing reference to State Department advisories warning against travel to Mexico. Then, after
 the hearing, the De La Cruz Plaintiffs filed a motion seeking leave to take additional discovery and file post-
 argument supplemental briefing on the motion to dismiss for forum non conveniens (Dkt. No. 155 in Case No.
 9:09cv167). In their motion, the De La Cruz Plaintiffs contested the adequacy of Mexico as an alternative forum for
 the first time. The Court denied the De La Cruz Plaintiffs’ motion for leave to file supplemental briefing on various
 grounds (Dkt. No. 157). However, even if the De La Cruz Plaintiffs had been allowed to belatedly contest the
 adequacy of Mexico as an alternative forum, the Fifth Circuit has made it abundantly clear that where the
 Defendants will submit to jurisdiction, Mexico is an available and adequate forum for the resolution of these types
 of disputes.
            The Fifth Circuit has repeatedly held that Mexico is an available and adequate forum for Mexican residents
 to pursue claims against American companies for injuries arising from accidents in Mexico. See, e.g., Saqui, 595
 F.3d at 211-213; In re Ford Motor Co., 591 F.3d at 412-13; DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785,
 804 (5th Cir. 2007). In In re Ford Motor Co., the Fifth Circuit 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.” 591
 F.3d at 412 (citing Gonzalex v. Chrysler Corp.. 301 F.3d 377, 380 n. 3 (5th Cir. 2002); Vasquez v.
 Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003); DTEX, 508 F.3d at 804). After referencing
 numerous Fifth Circuit opinions on the issue, the Court emphasized that:


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        B. Private and Public Interest Factors

               Plaintiffs have conceded that Mexico is an available and adequate forum for the

 adjudication of these claims, and, therefore, the only issue in dispute is whether the private and

 public interest factors weigh heavily in favor of dismissal to Mexico. In re Air Crash Disaster

 Near New Orleans, 821 F.2d. at 1164. Although a plaintiff’s choice of forum is generally given

 great deference, “a foreign plaintiff's selection of an American forum deserves less deference

 than an American citizen's selection of his home forum.” In re Air Crash Disaster Near New

 Orleans, 821 F.2d at 1164. “When the home forum has been chosen, it is reasonable to assume

 that this choice is convenient. When the plaintiff is foreign, however, this assumption is much

 less reasonable.” Reyno, 454 U.S. at 255-56. Plaintiffs are all Mexican citizens, and, therefore,

 their choice to bring suit in this Court is entitled to less deference in balancing the private and

 public interest factors.

               1. Private Interest Factors

               The private interest factors to be considered in the forum non conveniens analysis are: (1)

 the relative ease of access to sources of proof; (2) the availability of compulsory process for

 attendance of unwilling witnesses; (3) the costs of obtaining attendance of willing witnesses; (4)

 the probability of view of the premises, if view would be appropriate to the action; and (5) all


 
               [t]hese 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’ 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., 591 F.3d at 412. In another recent Fifth Circuit opinion, the Court rejected the argument that
 Mexico was an inadequate forum because (1) the amount of damages would be more limited under Mexican law, (2)
 there exists corruption in the Mexican courts, (3) the case would experience long delays in the Mexican court
 system, and (3) that, under Mexican law, it would be virtually impossible to subpoena out of country witnesses.
 Saqui, 595 F.3d at 212. In reaching this decision, the Fifth Circuit upheld the district court’s ruling that the plaintiff
 had not produced compelling evidence that corruption in the Mexican courts made Mexico an inadequate forum and
 that there would likely be fewer delays in a Mexican court because the accident took place in Mexican waters and
 involved Mexican citizens and corporations. Id. at 212-13.

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 other practical problems that make trial of a case easy, expeditious, and inexpensive. Saqui, 595

 F.3d at 213 (citing Gulf Oil Corp., 330 U.S at 508).

                a. The Relative Ease of Access to Sources of Proof

        The first private interest factor, the relative ease of access to sources of proof, favors

 dismissal. These cases arise out of an accident that occurred on a drilling rig and platform in

 Mexican territorial waters. Plaintiffs are all Mexican residents, and they, or their decedents,

 were working on the platform as a result of their employment by Mexican companies during the

 production of Mexican oil and gas resources. The physical and documentary evidence regarding

 the drilling rig Usumancinta, the KAB-101 production platform, the relevant oil wells, and the

 lifeboats, or mandarinas, that are at the center of this disaster are all located in Mexico. It would

 be impossible to investigate and evaluate the cause or causes of the accident without access to

 this evidence. In addition, the Defendants have shown that Plaintiffs’ employment, tax, and

 medical records, PEMEX’s and Pemex Exploración y Productión’s records, policies, and other

 documents, as well as the rescue workers’ records, policies, and other documents are all located

 in Mexico. Not only are all of these documents located in Mexico, but they are the property of

 third parties who could not be compelled to produce them in this forum. Even if they could

 somehow be obtained, most if not all of these documents are in Spanish and translating them

 would be burdensome, time-consuming, and costly in this forum.

        Plaintiffs, however, argue that although the accident itself took place in Mexico and the

 Plaintiffs are Mexican residents, these facts are secondary to the substantive liability issues.

 Plaintiffs contend that these cases are really about the wrongful conduct of U.S. companies and

 one U.S. resident, Glen Carter, whose acts and omission occurred in the United States. Plaintiffs

 argue that the witnesses and evidence in Mexico go primarily to damages, and that the damage



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 issues are secondary to the liability issues, the evidence for which is primarily in the United

 States. Plaintiffs point out that all of the Defendants are located in the United States, along with

 the evidence and witnesses concerning their liability.

         For example, Plaintiff alleges that: (1) Matthews-Daniel surveyed the seafloor and made

 decisions about the movement and placement of mobile rigs from its offices in Texas, where its

 records are held; (2) Gulf Coast and Glen Carter moved the rig in the Bay of Campeche, but their

 records and witnesses are in the United States; and (3) Schlumberger and Halliburton designed

 the faulty subsurface safety valves in the United States. Plaintiffs argue that the essential

 evidence related to Defendants’ liability is in the United States, including:

     •   Evidence relating to the research, development, design, manufacture, and installation of
         Schlumberger’s Camco valves;
     •   Schlumberger’s testing records relating to its Camco valves;
     •   Schlumberger’s records relating to the accident rate of its Camco valves;
     •   Evidence of Gulf Coast’s analysis of Cold Front No. 4 and its decision to move the
         Usumacinta rig;
     •   Gulf Coast’s policies and procedure regarding moving drilling rigs;
     •   Gulf Coasts’ policies and procedure regarding monitoring weather conditions;
     •   Gulf Coasts’ policies and procedures regarding safety;
     •   Halliburton’s evidence relating to the research, development, design, manufacture, and
         installation of its subsurface valves;
     •   Halliburton’s testing records relating to its subsurface valves;
     •   Halliburton’s records relating to the accident rate of its subsurface valves;
     •   Evidence gathered and discovered in connection with Battelle’s investigation of the
         accident;
     •   Evidence relating to Matthews-Daniel’s decision to move the Usimatica rig alongside the
         KAB-101 platform;
     •   Evidence of Glen Carter’s knowledge, expertise, and decision-making as the person on
         the scene of the move.

 Ultimately, Plaintiffs argue that most of the documents in Mexico relate to damages while the

 documents in the United States related to liability and that the volume of evidence needed to

 prove damages will be less than the volume of documents needed to prove liability. Plaintiffs’

 assertions, however, are not supported by the record. While it is certainly true that some liability


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 evidence is in the Defendants’ possession in the United States, it is simply not true that these

 documents constitute all or even the majority of the liability documents.

        As previously discussed, many of the core liability documents relating to the rig,

 platform, oil wells, and life boats are located in Mexico and in the possession of third parties.

 This is the evidence necessary to demonstrate how the disaster unfolded, what decisions were

 made before, during, and after the disaster, who made those decisions, and what possible causes

 contributed to the accident.     Plaintiffs cannot escape the fact that evidence related to the

 decisions made by those on and in control of the Usumacinta rig and KAB-101 platform at the

 time of the accident are central to the liability issues in this case. Plaintiffs’ argument that the

 Court should give little weight to the damages documents located in Mexico because damages is

 unlikely to be a hotly contested issue is also unpersuasive.          Finally, Plaintiffs theory of

 liability—and their corresponding assertion that most of the liability evidence is in the United

 States—is based largely on the findings of the Battelle Report that liability for the disaster in the

 Bay of Campeche rests not with PEMEX or Perforadora Central but with the Defendants. The

 Battelle Report, however, was commissioned by PEMEX and was the result of an investigation

 of witnesses, documents, and other evidence located largely in Mexico. If these cases were to

 proceed in this Court, the Defendants would not have access to the evidence located in Mexico—

 including PEMEX’s documents and the witnesses to the disaster—in order to challenge the

 conclusions of the Battelle Report. Plaintiffs may not dictate the Defendants’ litigation strategy

 by limiting their access to evidence and, thus, the issues and defenses available to Defendants.

 Keeping the case would require the Court to essentially adopt Plaintiffs’ theory of liability while

 hamstringing the Defendants’ ability to counter that theory.




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         Despite Plaintiffs’ efforts to convince the Court that many of the important liability

 documents and witnesses are in the United States, the reality of the situation is that the vast

 majority of the evidence and witnesses regarding the accident itself are located in Mexico as well

 as all of the documents regarding Plaintiffs’ injuries and damages. While it is true that some of

 the evidence and witnesses are in the United States, the great balance of the evidence is in

 Mexico and would be unavailable in this forum.           The Court, however, recognizes that

 Defendants have relevant witnesses and documentary evidence in the United States that might

 not be readily available in Mexico. Accordingly, the Court ORDERS that the case will not be

 dismissed for forum non conveniens unless and until each defendant enters a stipulation that it

 will make its relevant witnesses and documents available in Mexico to the extent consistent with

 Mexican law.

         The relative ease of access to evidence heavily favors Mexico as the appropriate forum

 for the consolidated cases.

                b. The Availability of Compulsory Process for Attendance of Unwilling
                   Witnesses

         The second private interest factor, the availability of compulsory process for the

 attendance of unwilling witnesses, also weighs heavily in favor of dismissal. This Court cannot

 compel attendance by any unwilling nonparty witness who is in Mexico. DTEX, LLC v. BBVA

 Bancomer, S.A., 512 F.Supp.2d 1012, 1025 (S.D.TX. 2007), affirmed and opinion adopted as the

 opinion of the Fifth Circuit, 508 F.3d 785 (5th Cir. 2007). Defendants argue that many third-

 party witnesses are Mexican residents who will not be subject to the Court’s subpoena power.

 These witnesses include:

     •   PEMEX, Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos
         Marinos, S.A. de C.V., Sercomsa S.A. de C.V., and other employees working on the
         Usumacinta rig, the KAB-101 platform, and Wells 101, 103, and 121;

                                                13
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     •   PEMEX, Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos
         Marinos, S.A. de C.V., Sercomsa S.A. de C.V., and other employees familiar with the
         maintenance and operation of the Usumacinta rig, the KAB-101 platform, Wells 101,
         103, and 121, and the two mandarinas;
     •   Plaintiffs’ medical providers; and
     •   The rescue workers.

 These are the eye witnesses to the events leading up to the accident, the accident itself, and the

 Plaintiffs’ injuries. As such, their testimony is crucial to the issues of liability and damages in

 this case. Even if these witnesses were available, they would likely only be available by

 deposition and would require translators, which would increase the cost of litigation. Obtaining

 depositions of any unwilling witnesses located in Mexico would have to be obtained through

 letters rogatory pursuant to the Hague Convention. “The procedure presents difficulties in

 obtaining adequate deposition testimony, is expensive, and is time consuming.” Vasquez v.

 Bridgestone/Firestone, Inc., 192 F. Supp. 2d 715, 725 (E.D. Tex. 2001), rev’d on other grounds,

 325 F.3d 665 (5th Cir. 2003). “[T]o fix the place of trial at a point where litigants cannot compel

 personal attendance and may be forced to try their cases on deposition is to create a condition not

 satisfactory to court, jury or most litigants.” Perez & Compania (Cataluna), S.A. v. M/V Mexico

 I, 826 F.2d 1449, 1453 (5th Cir. 1987) (citing Gulf Oil Corp., 330 U.S. at 511). This is because

 “conducting a substantial portion of a trial on deposition testimony precludes the trier of fact

 from its most important role; evaluating the credibility of the witnesses.” Torreblanca de

 Aguilar v. Boeing Co., 806 F. Supp. 139, 144 (E.D. Tex. 1992).

         However, Plaintiffs contend that neither Mexico nor the United States has absolute

 subpoena power over all non-party witnesses. Plaintiffs list the following third party witnesses

 as being available only in the U.S.:

     •   ABS Consulting, a subcontractor involved in the investigation and drafting of the Battelle
         Report (as to maritime aspects of offshore oil exploration and production) and its
         employees;

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     •   Sea Engineering Incorporated, a subcontractor involved in the investigation and drafting
         of the Battelle Report (as to soil-foundation issues) and its employees;
     •   Bethlehem Steel Company, the developer and manufacturer of the Usumacinta rig, and its
         employees;
     •   Houston Offshore Joint Venture, the former owner of Usumacinta, and its employees;
     •   Wilkens Weather Technologies and Oceanweather, Inc., both of which performed
         hindcast estimations of the offshore sea conditions caused by Cold Front No. 4, and their
         employees;
     •   Wittaker and Watercraft companies, the manufacturers of the lifeboats, and their
         employees;
     •   Alexander/Ryan Marine & Safety Company, which evaluated the construction and repair
         of the lifeboats, and its employees;
     •   Geoscience Earth & Marine Services, Inc., which evaluated likely scenarios for
         Usumacinta’s sliding and effects of prior footprints on the foundation behavior, and its
         employees;

 Many of these third party witnesses, though, are investigators involved in the Battelle Report

 who have no direct knowledge of the accident.        In addition, much of the direct evidence they

 relied on in their investigation appears to be in Mexico. Thus, even if they are unavailable to

 testify at a trial in Mexico, much of the evidence they rely on in making their conclusions would

 be available. Finally, while Plaintiffs state that these third party witnesses are located in the

 United States, they do not indicate where in the United States. Accordingly, there is no evidence

 that this Court would have subpoena power over them.

         Plaintiffs also lists as potential unwilling third-party witnesses: (1) the component part

 manufacturers for the products at issue; (2) independent contractors or other third parties in the

 United States who were involved in the decision to move or the actual process of moving

 Usumacinta alongside the KAB-101 platform; and (3) independent contractors or other third

 parties in the United States who were involved in the training of the personnel that worked on

 Usumacinta and the KAB-101 platform.           However, Plaintiffs have provided nothing to

 demonstrate or even suggest that there are any such manufacturers or independent contractors in

 the United States.


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        Finally, Plaintiffs argue that the witnesses listed by Defendants as being available only in

 Mexico are mostly oilfield and rescue workers who know very little about the root causes of the

 accident. Plaintiffs contend that the witnesses who participated in the decisions that resulted in

 the accident are in the United States and that these witnesses are more important than the

 witnesses in Mexico. However, the witnesses who participated in the decisions made by the

 Defendants that, according to Plaintiffs, resulted in the accident appear to be primarily party

 witnesses. Plaintiffs have not suggested that such party witnesses would be unavailable if this

 case were to proceed in Mexico. See Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 343

 (8th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 708, 79 L.Ed.2d 172 (1984) (holding that

 the location of witnesses in the Cayman Islands did not weigh strongly in favor of dismissal

 because many of the witnesses were employees of the defendant, which could obtain their

 cooperation in traveling to testify). To ensure that the Defendants will make their employees

 available for trial, the Court ORDERS that as a condition of dismissal, Defendants each sign a

 stipulation that they will make any employee witness available for trial in Mexico to the extent

 consistent with Mexican law. However, the oilfield workers, rescue workers, and accident

 investigators located in Mexico are clearly necessary third party witnesses outside the subpoena

 power of the United States who cannot be made available by a similar stipulation.

        Neither the United States nor Mexico is a perfect forum for these cases as there are third

 party witnesses who will likely be unavailable in each forum; however, the Court finds that the

 majority of the key third party witnesses are located in Mexico. Accordingly, the inability to

 compel the attendance of these third party witnesses weighs heavily in favor of dismissal.




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                 c. The Cost of Obtaining Attendance of Willing Witnesses

         Because of the large number of witnesses located in both Mexico and the United States,

 the cost of obtaining the attendance of willing witnesses will be significant regardless of whether

 the case is tried in this Court or in Mexico. Accordingly, this factor is neutral.

                 d. The Probability of View of the Premises

         The next private interest factor, the ability to view the premises, can only weigh in favor

 of dismissal since the accident took place in Mexican territorial waters. Nonetheless, Plaintiffs

 are correct that viewing the scene of the accident by any court in the United States or in Mexico

 is unlikely because the accident took place 18 miles out to sea. Plaintiffs also persuasively argue

 that viewing the scene of the accident is less important now because of the availability of

 pictures and animation software that can recreate the accident scene. For these reasons, the

 Court gives this factor little weight.

                 e. All Other Practical Problems

         A court must consider practical factors, such as the ability to implead other entities, in its

 forum non conveniens analysis. See Reyno, 454 U.S. at 276-78. The inability to implead

 potential third-party defendants “clearly support[s]” dismissal of the case in favor of trial in a

 foreign court were all claims can be resolved in a single action. Id. Plaintiffs contend that they

 would be unable to implead any unwilling American third party in a Mexican court. Plaintiffs,

 however, do not suggest that there are, in fact, any American third parties they wish to implead.

 Similarly, Defendants argue that their inability to pursue claims for contribution against Mexican

 third parties who are not subject to the jurisdiction of the Court in this action—i.e., PEMEX,

 Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos Marinos, S.A. de

 C.V., Sercomsa S.A. de C.V—weighs in favor of dismissing the case because judicial economy



                                                  17
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 favors resolution of all claims in one trial. On the other hand, Plaintiffs contend that Defendants

 have not shown that they would even be able to implead PEMEX or the other Mexican entities in

 Mexico or that PEMEX would be subject to liability in Mexico. At the hearing, the Court asked

 counsel for Defendants whether PEMEX would be subject to liability in Mexico. Defendants

 repeatedly stated that Mexican courts have exclusive jurisdiction over cases involving PEMEX,

 but could not answer the Court’s question regarding whether PEMEX would be subject to actual

 liability in Mexico.                         As a result, the parties’ supplemental briefing focused on this issue.

 Defendants’ supplemental briefing pointed to statements by their Mexican law experts and

 asserted that PEMEX could be impleaded and would be subject to liability if the consolidated

 cases were dismissed and brought in Mexico. Plaintiffs, however, argue in their supplemental

 brief that the two year statute of limitations has run on any claims against PEMEX or the other

 Mexican entities. Thus, Plaintiffs argue that Defendants would not be able to implead PEMEX

 or any other Mexican company even if the case were to proceed in Mexico.

               In his original expert declaration, filed before the alleged expiration of limitations while

 this case was still pending before Judge Clark, Defendants’ Mexican law expert, Mr. Claus Von

 Wobeser (“Mr. Von Wobeser”) stated that the statute of limitations for negligence claims was

 two years from the date on which the breach occurred and that the breach in this case occurred

 on or about October 23, 2007. Neither party has offered evidence disputing the two year statute

 of limitations or the date on which limitations began to run, nor is there any evidence as to

 whether the statute of limitations would be tolled under Mexican law. Thus, it appears that the

 statute of limitations for any negligence claim against PEMEX or any other Mexican entity may

 have expired on October 23, 2009.6 Even if the statute of limitations has run, it is unclear

 
 6
  The Court notes that the declaration of Mr. Von Wobeser attached to Defendants’ consolidated motion to dismiss
 for forum non conveniens omitted this information, as did the supplemental affidavit of Mr. Von Wobeser attached

                                                                    18
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 whether, under Mexican law, the statue of limitations for negligence claims would apply to any

 contribution claims Defendants might have against PEMEX or other Mexican entities.7 What is

 clear, however, is that PEMEX cannot be impleaded if the cases proceed in this Court, and this

 suggests that this factor leans slightly in favor of transfer.                                                                     Nonetheless, because of the

 uncertainty that any impleader will be available or necessary in either Mexico or this district, the

 Court gives this factor scant weight.

                              f. The Private Interest Factors Weigh in Favor of Dismissal

               The Court finds that the private interest factors alone require dismissal of this case for

 forum non conveniens. In a case strikingly similar to this action, The Fifth Circuit held that the

 private interest factors weighed in favor of granting a motion to dismiss on forum non

 conveniens grounds. Saqui involved the death of a Mexican citizen while working on a mobile

 drilling rig in Mexican territorial waters. Saqui, 595 F.3d 206. The rig was owned by an

 American company and leased to PEMEX, and PEMEX controlled the well operations and

 provided the drilling crew to manage and operate the rig. Id. at 208. In upholding the district

 court’s decision to dismiss the case for forum non conveniens, the Fifth Circuit noted that:

               (1) the accident occurred off the coast of Mexico; (2) the injured crew members
               and their surviving families . . . are citizens of and reside in Mexico; (3) [the
               deceased] died while working aboard a [rig owned by the defendant, American
               company,] that was leased to, and under the control of, Pemex, the national oil
               corporation of Mexico; (4) the maintenance crew . . . were employees of . . . a
               Mexican company with its principal place of business in Mexico; (5) [the
               American defendant] did not control the operations or have any employees aboard
               the vessel; (6) the key physical evidence and most of the witnesses to the accident
               were located in Mexico; and (7) the Mexican National Government investigated

 
 to Schlumberger’s post-hearing supplemental memorandum. Defendants also failed to mention the expiration of the
 statute of limitations to the Court in response to the Court’s direct questioning at the hearing as to whether PEMEX
 could be impleaded and whether it would be subject to liability in Mexico.
 7
   For example, under Texas law, a claim for contribution does not arise until the underlying liability is determined.
 See Arnold v. Garlock Inc., 288 F.3d 234, 237 (5th Cir. 2002) (“The essential prerequisites for a contribution claim
 are a judgment finding the party seeking contribution to be a joint tortfeasor and the payment by such party of a
 disproportionate share of the common liability”) (citation omitted).

                                                                                              19
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         the accident, created documents, and conducted interviews and site inspections in
         Mexico.

 Id. at 213.

         One important difference between Saqui and the present case is that the drilling rig at

 issue in Saqui was manufactured by the American defendant in Mexico. In this case, however,

 the allegedly faulty valves on the Usumacinta rig were developed, manufactured, and installed

 by two of the American defendants—Schlumberger and Halliburton—in the United States.

 Nevertheless, this fact is not enough to overcome the clear weight of the evidence that is located

 in Mexico. In Reyno, the Supreme Court upheld the district court’s determination that fewer

 evidentiary problems would be posed in the trial of American plane manufactures in Scotland for

 liability arising from a plane crash in Scotland. Reyno, 454 U.S. at 257. The Court noted that a

 large proportion of the relevant evidence was in Scotland, despite the fact that documents

 concerning the design, manufacture, and testing of the propeller and plane were located in the

 United States. Id.

         In the present cases, the key evidence and witnesses necessary to effectively investigate

 and try Plaintiffs’ claims are located primarily in Mexico and would likely be unavailable if trial

 were to proceed in this Court. Accordingly, the private interest factors require dismissal in favor

 of trial in a Mexican court.

         2. Public Interest Factors

         Because the Court finds that the private interest factors require dismissal, it need not

 reach the public interest factors. See In re Air Crash Disaster Near New Orleans, 821 F.2d at

 1165 (“If the district court finds that the private interests do not weigh in favor of the dismissal,

 it must then consider the public interest factors”). However, the Court holds that the public

 interest factors also necessitate transfer and will briefly address them as well. The public interest

                                                  20
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 factors include (1) the administrative difficulties flowing from court congestion; (2) the local

 interest in having localized controversies resolved at home; (3) the interest in having the trial of a

 diversity case in a forum that is familiar with the law that must govern the action; (4) the

 avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and (5)

 the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 1162-63.

                a. Administrative Difficulties

        The first public interest factor, administrative difficulties, weighs only slightly in favor of

 dismissal. Defendants claim that the administrative difficulties of obtaining evidence from

 Mexico and applying Mexican law weigh in favor of dismissal. On the other hand, Plaintiffs

 assert that administrative considerations weigh in favor of trying these cases in this Court

 because, according to Plaintiffs’ Mexican law expert, trial in Mexico would likely take a decade.

 The Court finds both arguments compelling. However, given the difficulties in obtaining key

 evidence and witnesses from Mexico and the necessity of applying Mexican law in these cases,

 the Court finds that the administrative difficulties weigh slightly in favor of dismissal despite the

 potential delay in resolution of these cases that may result from dismissal. See DTEX, 512 F.

 Supp. 2d at 1027 (holding that administrative difficulties such as obtaining evidence from

 Mexico and applying Mexican law weigh in favor of dismissal for forum non conveniens).

                b. Local Interest

        The next public interest factor, the interest in resolving local controversies locally,

 supports dismissal in favor of a Mexican court. The Supreme Court has held that a foreign

 country has a strong interest in the litigation when the accident giving rise to the action occurred

 within its borders and where the victims are its citizens because there is a “local interest in

 having localized controversies decided at home.” Reyno, 545 U.S. at 260. Plaintiffs are all



                                                  21
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 Mexican residents and they, or their decedents, were working on the platform as a result of their

 employment by either the Mexico’s state-owned oil company, PEMEX, or various Mexican

 companies working in cooperation with PEMEX during the production of Mexican oil and gas

 resources. In addition, numerous investigations of the accident occurred in Mexico at the behest

 of the Mexican government. For example, multiple Mexican government agencies investigated

 and imposed monetary penalties on Mexican companies as a result of the accident, including the

 Mexican Environmental Protection Agency for environmental violations and the Mexican

 Merchant Marine Department for safety violations.         The Mexican Attorney General also

 investigated the incident for possible criminal wrongdoing. All of this makes it abundantly clear

 that Mexico has a much stronger interest in these cases than the United States.

        Plaintiffs argue that the United States and its citizens have an interest in this lawsuit

 because the defendants are Texas companies and residents and because the decisions—and in

 some cases the manufacturing and installation of allegedly faulty products—resulting in the

 accident were made in Texas. In short, Plaintiffs argue that Texas has a keen interest in the

 activities of companies doing business within its borders. Plaintiffs’ argument, however, is not

 supported by the case law. In Reyno, the Supreme Court upheld the dismissal for forum non

 conveniens of a wrongful death action stemming from an airplane crash in Scotland brought by

 Scottish citizens against the American companies that manufactured the plane and propeller.

 Reyno, 454 U.S. at 260-61.      In doing so, the Court rejected the plaintiffs’ argument that

 American citizens had a strong interest in ensuring that American manufacturers are deterred

 from producing defective products and that additional deterrence might be obtained if the

 American companies were tried in the United States. Id. at 260-61. “The American interest in




                                                 22
 
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 this accident is simply not sufficient to justify the enormous commitment of judicial time and

 resources that would inevitably be required if the case were to be tried here.” Id. at 261.

        Mexico’s strong local interest in resolving these cases weighs heavily in favor of

 dismissal of these cases for forum non conveniens.

                c. The Application of Mexican Law

        The third and fourth public interest factors—the interest in having the trial of a diversity

 case in a forum that is familiar with the law that must govern the action and the avoidance of

 unnecessary problems in conflicts of law, or in the application of foreign law—counsel in favor

 of dismissal because the only remaining claims in all seven of these cases are claims under

 Mexican law. The need to apply foreign law points towards dismissal. Reyno, 454 U.S. at 260.

 The Court is not persuaded by the Plaintiffs’ argument that the applicability of Mexican law is

 immaterial. In deciding Plaintiffs’ Mexican law claims, the Court would require translators to

 translate the Mexican law as well as Mexican legal experts to explain the law. Accordingly, this

 factor weighs heavily in favor of dismissal.

                d. The Burden of Jury Duty

        The final public interest factor, the interest in avoiding an unfair burden on citizens in an

 unrelated forum with jury duty, also weighs in favor of dismissal. As previously noted, Mexico

 has a far greater interest in this case than Texas. In addition, this case has almost no connection

 with the Eastern District of Texas.      The only connection with this district is the fact one

 defendant, Gulf Coast, has an office in Lufkin, Texas. Jury duty should not be imposed on the

 citizens of the Eastern District of Texas in a case that is so slightly connected with the United

 States, much less this district. See In re Bridgestone/Firestone, 420 F.3d at 705 (“The citizens of

 the Western District of Texas have no connection to the Mañez-Reyes accident. The family does



                                                 23
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Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 24 of 27 PageID #: 4665



 not reside there, the accident did not occur there, and the tires at issue were neither designed nor

 manufactured there.”).

                e. The Public Interest Factors Favor Transfer

        Four of the five public interest factors—local interest, trial of a diversity case in a forum

 familiar with the law, avoidance of unnecessary problems in conflict of laws or in application of

 foreign law, and the burden of jury duty—weigh heavily in favor of dismissal for forum non

 conveniens and one factor—administrative difficulties—weighs slightly in favor of dismissal.

 Accordingly, the public interest factors, like the private interest factors, dictate dismissal of all

 seven cases in favor of trial in a Mexican court.

     C. Jurisdictional Stipulations and Return Jurisdiction Clause

        According to the Fifth Circuit, if the court determines that the above considerations favor

 trial in a foreign forum, “it must finally ensure that a plaintiff can reinstate his suit in the

 alternative forum without undue inconvenience or prejudice and that if a defendant obstructs

 such reinstatement in the alternative forum that the plaintiff may return to the American forum.”

 In re Air Crash Disaster Near New Orleans, 821 F.2d at 1166; see also In re Ford Motor Co.,

 591 F.3d at 414 (“There is no guarantee that Mexico will remain an available forum . . . . A

 return jurisdiction clause remedies this concern by permitting parties to return to the dismissing

 court should the lawsuit become impossible in the foreign forum”) (internal quotations and

 citation omitted). The dismissal of the seven consolidated cases for forum non conveniens is,

 therefore, subject to the following return jurisdiction clause: should the courts of Mexico refuse

 to accept jurisdiction for reasons other than Plaintiffs’ refusal to pursue an action or to comply

 with the procedural requirements of Mexican courts, this Court may reassert jurisdiction upon

 timely notification of the same.



                                                     24
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        In addition to the return jurisdiction clause, the dismissal of this action is conditioned on

 Defendants making the following stipulations:

     1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican

        federal or state court, waiving any jurisdictional defenses they might normally possess.

     2) Defendants agree to waive any statute of limitations defense that they did not possess as

        of the date each of the seven cases was originally filed.

     3) Defendants agree to submit to discovery in the Mexican forum in accordance with the

        procedural rules of the Mexican court.

     4) Defendants agree that they will make all relevant witnesses and documents available in

        Mexico to the extent consistent with Mexican law.

     5) Defendants further agree that they will make any employee witness available for trial in

        Mexico to the extent consistent with Mexican law.

 III.   Plaintiffs’ Request for Additional Discovery

        In their response to Defendants’ consolidated motion, Plaintiffs request leave to take

 additional discovery related to the forum non conveniens issue. Plaintiffs admit that Judge Clark

 allowed them to conduct discovery on the forum non conveniens issue in the Dominguez case

 (Case No. 9:08cv200). However, Plaintiffs argue that the discovery was too narrow and request

 that each defendant be required to produce a 30(b)(6) witness on the “factual and legal issues

 raised in this motion” as well as respond to written discovery with regard to “the factual and

 legal issues raised in this motion. The Court does not believe that additional discovery is needed

 in order to rule on the motion to dismiss. The parties have already provided extensive evidence

 on the location of the documents and witnesses in this case as well as evidence relevant to the

 other private and public interest factors in the forum non conveniens analysis. Accordingly,



                                                 25
 
Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 26 of 27 PageID #: 4667



 Plaintiffs’ request for additional discovery related to Defendants’ motion to dismiss for forum

 non conveniens is DENIED.

 IV.    Conclusion

        For the reasons discussed above, the Court CONDITIONALLY GRANTS Defendants’

 Consolidated Motion to Dismiss for Forum Non Conveniens (Dkt. No. 225 in Case No.

 9:08cv200). The Court FURTHER ORDERS that, subject to a return jurisdiction clause and the

 conditions laid out in this order, the following seven cases be dismissed for forum non

 conveniens: Dominguez v. Gulf Coast Marine & Assoc., Inc., et al, Case No. 9:08cv200;

 Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv150; Friaz v. Gulf Coast

 Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf Coast Marine & Assoc., Inc., et

 al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv164; De La

 Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv167.

        The dismissal of each case from the Court’s docket shall become effective once the

 Defendants have tendered a written statement assenting to be bound by the following conditions:

     1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican

        federal or state court, waiving any jurisdictional defenses they might normally possess.

     2) Defendants agree to waive any statute of limitations defense that they did not possess as

        of the date each of the seven cases was originally filed.

     3) Defendants agree to submit to discovery in the Mexican forum in accordance with the

        procedural rules of the Mexican court.

     4) Defendants agree that they will make all relevant witnesses and documents available in

        Mexico to the extent consistent with Mexican law.



                                                 26
 
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     5) Defendants further agree that they will make any employee witness available for trial in

         Mexico to the extent consistent with Mexican law.

 Should any defendant fail to do so by May 2, 2011, Defendants’ Consolidated Motion for

 Dismissal for Forum Non Conveniens will be considered waived, and all seven cases will

 proceed to trial in this Court.

         Should the courts of Mexico refuse to accept jurisdiction of any of these cases for reasons

 other than Plaintiffs’ refusal to pursue an action or to comply with the procedural requirements

 of Mexican courts, this Court may reassert jurisdiction upon timely notification of the same.

         A copy of this order will be filed in each of the following seven consolidated cases:

 Dominguez v. Gulf Coast Marine & Assoc., Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf

 Coast Marine & Assoc., Inc., et al., Case No. 9:09cv150; Friaz v. Gulf Coast Marine & Assoc.,

 Inc., et al., Case No. 9:09cv162; Perez v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

 9:09cv156; Jimenez Govea v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv170;

 Gordillo v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv164; De La Cruz v. Gulf

 Coast Marine & Assoc., Inc., et al., Case No. 9:09cv167.

         IT IS SO ORDERED.

        SIGNED this 20th day of April, 2011.



                                              __________________________________________
                                              T. JOHN WARD
                                              UNITED STATES DISTRICT JUDGE




                                                 27
 
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 1 of 15 PageID #: 6034

                                                       EXHIBIT "B"

 UNITED STATES DISTRICT COURT                                 EASTERN DISTRICT OF TEXAS


 MARIA SANTOS LOPEZ DOMINGUEZ,                     §
 et al.,                                           §
                                                   §
                 Plaintiffs,                       §
                                                   §
 versus                                            §      CIVIL ACTION NO. 9:08-CV-200
                                                   §
 GULF COAST MARINE & ASSOCIATES,                   §
 INC., et al.,                                     §
                                                   §
                 Defendants.                       §

                                 MEMORANDUM AND ORDER

          Pending before the court is Plaintiffs’ Motion to Reinstate Case (#261), wherein Plaintiffs

 seek to reopen this action following a dismissal under the doctrine of forum non conveniens.

 Having reviewed the pending motion, the submissions of the parties, the pleadings, and the

 applicable law, the court is of the opinion that the motion should be denied.

 I.       Background

          This case arises from a fatal maritime accident off the coast of Mexico. On October 23,

 2007, a powerful storm blew across the Bay of Campeche, where the mobile drilling rig

 USUMACINTA was positioned near the oil production platform KAB-101, approximately ten

 miles north of the Mexican coast. As a result of hurricane force winds, the USUMACINTA

 allided with the KAB-101, damaging the platform and causing crude oil and natural gas to leak

 from one of its wells. The workers onboard were forced to evacuate the platform, which

 subsequently exploded. Although the workers boarded two lifeboats, the boats capsized in the

 rough waters. Twenty-two offshore workers (including two rescuers) perished and numerous

 others were injured.
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 2 of 15 PageID #: 6035



        Plaintiffs, who are residents of Mexico, are survivors and relatives of the workers killed

 in the accident as well as representatives of their estates. Those injured or killed in the accident

 worked for Mexico’s state-owned oil company Petróleos Mexicanos (“Pemex”) or Perforadora

 Central (“Perforadora”), a Mexican company that assists Pemex in oil exploration. At the time

 of the incident, Pemex owned the KAB-101 platform and was leasing the USUMACINTA rig from

 Perforadora.

        In October 2008, Plaintiffs filed seven different cases in the Eastern District of Texas,

 Lufkin Division, asserting negligence, gross negligence, products liability, and wrongful death

 claims against four American companies, Defendants Gulf Coast Marine & Associates, Inc. (“Gulf

 Coast”), Schlumberger Technology Corporation, Halliburton Energy Services, Inc., and

 Matthews-Daniel Company, and Defendant Glen Carter, allegedly an American employee of Gulf

 Coast (collectively, “Defendants”).1 The court consolidated the cases on September 15, 2010, for

 the purpose of briefing and deciding the forum non conveniens issue common to each case. See

 Docket No. 196.

        Acting on a motion to dismiss filed by Defendants, former United States District Judge T.

 John Ward conditionally dismissed the case pursuant to the doctrine of forum non conveniens on

 April 20, 2011. As a condition of dismissal, the court required Defendants to tender a written

 statement in which they agreed to “appear and submit themselves to the jurisdiction of a Mexican

 federal or state court, waiving any jurisdictional defenses they might normally possess.” See

 Docket No. 257 (Memorandum Opinion, Apr. 20, 2011). On April 29, 2011, Defendants filed



        1
            Pemex and Perforadora are not defendants in this suit.


                                                     2
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 the required stipulations.2 See Docket No. 258. Accordingly, on May 4, 2011, the court

 dismissed the case based on forum non conveniens, subject to the following return-jurisdiction

 clause:

           Should the courts of Mexico refuse to accept jurisdiction of this case for reasons
           other than Plaintiffs’ refusal to pursue an action or to comply with the procedural
           requirements of Mexican courts, this Court may reassert jurisdiction upon timely
           notification of the same.

 See Order, Docket No. 259. Plaintiffs did not appeal the May 4, 2011, order.

           Pursuant to the court’s order, between February and May 2013, eleven Plaintiffs filed

 separate lawsuits in the State of Campeche.3 Shortly thereafter, however, the Mexican courts

 dismissed the cases. Each court stated that it could not assert jurisdiction over Defendants because

 of the “Interamerican Convention concerning the Jurisdiction on the international sphere for the

 extraterritorial efficacy of foreign verdicts” and “by reason that the territory concerned to which




           2
          The court’s subsequent order dismissing the case pursuant to forum non conveniens acknowledges
 that Defendants filed the required following stipulations:

           1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican
           federal or state court, waiving any jurisdictional defenses they might normally possess.
           2) Defendants agree to waive any statute of limitations defense that they did not possess
           as of the date each of the seven cases was originally filed.
           3) Defendants agree to submit to discovery in the Mexican forum in accordance with the
           procedural rules of the Mexican court.
           4) Defendants agree that they will make all relevant witnesses and documents available in
           Mexico to the extent consistent with Mexican law.
           5) Defendants further agree that they will make any employee witness available for trial
           in Mexico to the extent consistent with Mexican law.
           3
           The eleven Plaintiffs are: (1) Aldo Antonio Lopez Lorenzo; (2) Antonio Montero Hernandez;
 (3) Feliciana Perez Lopez de Alcudia; (4) Virginia Castellanos Casanova de Porter; (5) Maria Candelaria
 Dzul Xool; (6) Julissa Bovio Chagoya de Solis; (7) Maria Santos Lopez Dominguez; (8) Gabriel Gonzales
 Toral; (9) Juan Antonio Palafox Navarrete; (10) Oscar Romero Ortega; and (11) Fernando Augusto
 Cervera Ramirez.

                                                      3
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 4 of 15 PageID #: 6037



 the residence of the defendants are not found in . . . this federal entity to avail itself of the

 acknowledgment of the lawsuit of origin.”4

         Rather than appeal the Mexican dismissals to a higher court, on October 18, 2013,

 Plaintiffs filed a motion to reopen or reinstate the instant case pursuant to the return-jurisdiction

 clause above. Plaintiffs contend that they complied with the court’s order by filing suit in the State

 of Campeche and complying with all of Mexico’s relevant procedural rules. Plaintiffs also

 maintain that they pursued the Mexican cases in good faith without attempting to defeat

 jurisdiction in Mexico.

         Defendants dispute Plaintiff assertions, arguing that: (1) Plaintiffs did not provide

 Defendants notice of the Mexican proceedings; (2) Plaintiffs failed to offer any argument or

 evidence that they informed the Mexican courts of Defendants’ consent to jurisdiction in Mexico;

 (3) Plaintiffs did not appeal the Mexican dismissals; and (4) Plaintiffs’ motion is untimely.

 Defendants also stress that Plaintiffs are improperly attempting to relitigate the adequacy and

 availability of Mexico as an alternative forum.

 II.     Analysis

         A.      FED. R. CIV. P. 60(b)

         Rule 60(b) of the Federal Rules of Civil Procedure provides that a court may relieve a

 party or its legal representative from a final judgment, order, or proceeding for the following

 reasons:

         (1)     mistake, inadvertence, surprise, or excusable neglect;



         4
           In most of the cases, the Mexican courts dismissed the lawsuits one or two days after the cases
 were filed.

                                                    4
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        (2)     newly discovered evidence that, with reasonable diligence, could not have been
                discovered in time to move for a new trial under Rule 59(b);

        (3)     fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
                misconduct by an opposing party;

        (4)     the judgment is void;

        (5)     the judgment has been satisfied, released or discharged; it is based on an earlier
                judgment that has been reversed or vacated; or applying it prospectively is no
                longer equitable; or

        (6)     any other reason that justifies relief.

 FED. R. CIV. P. 60(b).

        A motion brought under Rule 60(b) must be made within a “reasonable time—and for

 reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date

 of the proceeding.” FED. R. CIV. P. 60(c). “The party seeking relief from a judgment or order

 bears the burden of demonstrating that the prerequisites for such relief are satisfied.” Turner v.

 Chase, No. 08-3884, 2010 WL 2545277, at *2 (E.D. La. June 16, 2010) (citing Motorola Credit

 Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009)); see United States v. City of New Orleans, 947

 F. Supp. 2d 601, 615 (E.D. La.), aff’d, 731 F.3d 434 (5th Cir. 2013). “A decision with respect

 to a motion to reconsider pursuant to Rule 60(b) is left to the ‘sound discretion of the district court

 and will only be reversed if there is an abuse of that discretion.’” Laborde v. Lunceford, No.

 6:10-CV-30, 2010 WL 3946508, at *3 (E.D. Tex. Oct. 8, 2010) (quoting Steverson v.

 GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007)); see Gov’t Fin. Servs. One Ltd. P’ship

 v. Peyton Place, Inc., 62 F.3d 767, 770 (5th Cir. 1995) (“[T]o overturn the district court’s denial

 of [a] Rule 60(b) motion, it is not enough that a grant of the motion might have been permissible




                                                   5
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 6 of 15 PageID #: 6039



 or warranted; rather, the decision to deny the motion must have been sufficiently unwarranted as

 to amount to an abuse of discretion.”) (internal quotations omitted).

        Plaintiffs filed the instant motion, asserting that “the [c]ourt may reinstate this case

 pursuant to FED. R. CIV. P. 60(b)(6).” Nonetheless, in their reply brief, Plaintiffs argue that Rule

 60(b)(6) does not apply to cases like this one, where Plaintiffs seek reinstatement pursuant to a

 return-jurisdiction clause following a dismissal for forum non conveniens. Plaintiffs, however,

 cite no case, binding or persuasive, in which a court has expressly concluded that Rule 60(b) does

 not apply under circumstances similar to those presented here. Further, it does not appear that

 the United States Court of Appeals for the Fifth Circuit has spoken on the issue. In contrast,

 several courts have applied Rule 60(b)(6) in considering the propriety of reopening a case after

 a dismissal for forum non conveniens. See Aldana v. Fresh Del Monte Produce, Inc., No. 01-

 3399-CIV, 2012 WL 5364241, at *4-5 (S.D. Fla. Oct. 30, 2012), aff’d, 741 F.3d 1349 (11th Cir.

 2014); see also Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1294 (11th Cir. 2013); Mendes

 Junior Int’l Co. v. Banco Do Brasil S.A., No. 09-3478-CV, 2010 WL 3818094, at *1-2 (2d Cir.

 Oct. 1, 2010).

        Under Rule 60(b)(6), a district court may relieve a party from an order or proceeding for

 any reason that justifies relief, other than those also enumerated in Rule 60(b). See Rocha v.

 Thaler, 619 F.3d 387, 399-400 (5th Cir. 2010), cert. denied, 132 S. Ct. 397 (2011). “Rule

 60(b)(6) is a grand reservoir of equitable power to do justice in a particular case when relief is not

 warranted by the preceding clauses, [and] [the Fifth Circuit] [has] also narrowly circumscribed

 its availability, holding that Rule 60(b)(6) relief will be granted only if extraordinary

 circumstances are present.” Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir. 2010), cert. denied,


                                                   6
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 7 of 15 PageID #: 6040



 131 S. Ct. 2292 (2011) (quoting Batts v. Tow-Motor Forklife Co., 66 F.3d 743, 747 (5th Cir.

 1995)); In re Chinese Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 593 n.19 (5th Cir.

 2014). “‘[T]he rule seeks to strike a delicate balance between two countervailing impulses: the

 desire to preserve the finality of judgments and the “incessant command of the court’s conscience

 that justice be done in light of all the facts.”’” Borne v. River Parishes Hosp., L.L.C., No. 12-

 30749, 2013 WL 5977133, at *2 (5th Cir. Apr. 22, 2013) (quoting Seven Elves, Inc. v. Eskenazi,

 635 F.2d 396, 401 (5th Cir. 1981) (quoting Bankers Mortg. Co. v. United States, 423 F.2d 73,

 77 (5th Cir.), cert. denied, 399 U.S. 927 (1970))). Rule 60(b)(6) is a “catch-all provision, meant

 to encompass circumstances not covered by Rule 60(b)’s other enumerated provisions.” See Hess

 v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002); accord Margoles v. Johns, 798 F.2d 1069, 1073

 n.6 (7th Cir. 1986) (“Relief under Rule 60(b)(6) is appropriate only if the grounds asserted for

 relief do not fit under any of the other subsections of Rule 60(b).”); Hindi v. Toyota Motor Corp.,

 No. 2:05-CV-11, 2011 WL 865488, at *4 (E.D. Tex. Mar. 10, 2011) (“Plaintiff cannot

 circumvent the time limitations of Rule 60(c)(1) by asserting a Rule 60(b)(6) motion with

 allegations that are more appropriate to support a Rule 60(b)(3) motion [which pertain to fraud,

 misrepresentation, or misconduct by the opposing party].”).

        B.      Litigation in the Foreign Forum

        Without regard to whether Rule 60(b)(6)’s “exceptional circumstances” standard applies

 here, “a plaintiff whose case is dismissed for forum non conveniens must litigate in the foreign

 forum in good faith.” In re Air Crash Over the Mid-Atl., 792 F. Supp. 2d 1090, 1095 (N.D. Cal.

 June 15, 2011); see Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir.

 2011) (“If the district court determines that the primary reason the Mexican courts declined to take


                                                  7
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 8 of 15 PageID #: 6041



 jurisdiction of Plaintiffs’ case was Plaintiffs’ actions or inactions in the case, it retains discretion

 to again order dismissal, with appropriate conditions, if any.”); MBI Grp., Inc. v. Credit Foncier

 Du Cameroun, 616 F.3d 568, 573-74 (D.C. Cir. 2010) (holding that plaintiffs were not entitled

 to litigate in United States because they “consistently worked to undermine their suit in

 Cameroon”); In re Bridgestone/Firestone, Inc., 420 F.3d 702, 706-07 (7th Cir. 2005) (remanding

 action to district court to assess whether the plaintiffs’ efforts to litigate in Mexico were taken in

 good faith); Huang v. Advanced Battery Tech., Inc., No. 09-8297, 2011 WL 813600, at *2

 (S.D.N.Y. Mar. 8, 2011) (denying request to reinstate lawsuit dismissed on forum non conveniens

 grounds because “it appears that [plaintiff] has not pursued his claims in China with any real

 diligence”). Indeed, “[a] conditional forum non conveniens dismissal protects a plaintiff against

 the possibility that the foreign forum will not hear his case. It does not give the plaintiff license

 to deliberately prevent his suit in the foreign court from going forward in order to render an

 alternative forum defective.”         MBI Grp., Inc., 616 F.3d at 572; see Vasquez v.

 Bridgestone/Firestone, Inc., 325 F.3d 665, 675 (5th Cir. 2003) (“A return jurisdiction clause

 remedies [the concern that the foreign forum will remain available] by permitting parties to return

 to the dismissing court should the lawsuit become impossible in the foreign forum.”).

         In this case, it is unnecessary to determine whether Rule 60(b)(6) applies, as Plaintiffs have

 not satisfied the terms of the return-jurisdiction provision imposed by Judge Ward. As set forth

 above, the return-jurisdiction clause provided:

         Should the courts of Mexico refuse to accept jurisdiction of this case for reasons
         other than Plaintiffs’ refusal to pursue an action or to comply with the procedural
         requirements of Mexican courts, this Court may reassert jurisdiction upon timely
         notification of the same.



                                                8
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 9 of 15 PageID #: 6042



 Here, Plaintiffs filed some, but not all, of the cases dismissed by Judge Ward in Mexico. Because

 counsel made no attempt to litigate those cases in Mexico in compliance with the court’s

 Memorandum and Order, there is no basis upon which to reopen them here.

        With regard to the cases filed in Mexico, Defendants argue that reinstatement is not

 warranted because Plaintiffs failed to inform the Mexican courts of Defendants’ consent to

 jurisdiction and to comply with the procedural requirements of the Mexican Courts. Essentially,

 Defendants argue that Plaintiffs did not prosecute the cases in good faith. The court agrees.

        First, as explained by Defendants’ Mexican legal expert, Claus Werner von Wobeser

 Hoepfner (“Wobeser Hoepfner”), a Mexican court should defer to the parties’ consent when

 determining whether to exercise jurisdiction over Defendants. See Docket No. 263-1 (Wobeser

 Hoepfner Declaration, Nov. 1, 2013); Docket No. 277-1 (Wobeser Hoepfner Declaration, Jan.

 10, 2014); see also City of New Orleans Emps. Ret. Sys. v. Hayward, 508 F. App’x 293, 296 (5th

 Cir. 2013) (“A defendant’s submission to the jurisdiction of a foreign forum sufficiently satisfies

 the availability requirement.”); Ibarra v. Orica U.S.A. Inc., 493 F. App’x 489, 493 (5th Cir.

 2012) (“Mexico is presumed to be an available forum for tort suits against a defendant willing to

 submit to jurisdiction there.”) (citing In re Ford Motor Co., 591 F.3d 406, 412-13 (5th Cir. 2009)

 (stating that “many decisions create a nearly airtight presumption that Mexico is an available

 forum”)).

        Article 104, section II, of the Mexican Constitution provides that Mexico’s federal courts

 will have jurisdiction over “all controversies of a civil or criminal nature regarding the

 implementation or application of federal laws or of international treaties entered into by the

 Mexican State” and “controversies involving maritime law.” Jorge A. Vargas, Mexican Law for


                                                 9
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 10 of 15 PageID #: 6043



 the American Lawyer, 30-31 (2009); see Docket No 277-1 (Wobeser Hoepfner Declaration). In

 addition, article 4 of the Mexican Navigation and Maritime Trade Act provides that federal

 jurisdiction encompasses “in general all the acts and facts that take place” in the Mexican internal

 marine waters and the Mexican marine zones. LEY DE NAVEGACION Y COMERCI MARITIMOS, art.

 4. Plaintiffs’ Mexican lawyer, Hector Tijerina Aguilar (“Tijerina Aguilar”), appears to agree with

 the proposition that the Mexican courts have subject matter jurisdiction, as he recognized in his

 declaration that a Mexican court “[a]nalyzes its competence by subject, that is to say in this

 concrete case the federal judge is competent by subject because it relates to a petroleum platform

 accident and it occurred in high seas.” See Docket No. 272-1 (Tijerina Aguilar Letter, Nov. 13,

 2013).

          Article 23 of Mexico’s Federal Code of Civil Procedure (“FCCP”) provides that territorial

 jurisdiction can be extended through the mutual consent of the parties. It states:

          The territorial jurisdiction is extendable by the parties’ express or tacit mutual
          consent:

          There is tacit extension:

          I.     By plaintiff, by appearing before the court upon filing its claim;

          II.    By defendant, by answering the complaint and counterclaiming against the
                 plaintiff; and

          III.   By any of the interested parties, when such party desists from a jurisdiction.

 CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES [FCCP], art. 23.

          Absent express or tacit consent to jurisdiction, however, article 24 of the FCCP, section

 IV, states that by reason of territory the competent court is that “from the defendant’s domicile,

 when dealing with . . . personal actions.” CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES


                                                  10
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 11 of 15 PageID #: 6044



 [FCCP], art. 24. Further, the First Chamber of Mexico’s Supreme Court held in April 1998, that

 “when dealing with competence conflicts, . . . full evidentiary weight should be granted to

 documents where it appears that the parties have submitted themselves expressly and conclusively

 to the jurisdiction of certain courts.” See Docket No. 263-1 (Competencia. Para Su Resolución

 Debe Darse Valor Probatorio Pleno a Las Documentales Que Contengansometimiento Expreso de

 Las Partes, 9a. Época; 1a. Sala; S.J.F. y su Gaceta; Tomo VII, Abril de 1998; Pág. 143.).

 Plaintiffs’ expert does not specifically challenge any of the aforementioned authorities, which were

 attached by Wobeser Hoepfner.

        Based on the foregoing authorities, Wobeser Hoepfner opines that where, as here, “a

 potential group of defendants have expressly submitted themselves in writing to the jurisdiction

 of Mexico’s federal courts in connection with a civil dispute arising from events which took place

 in Mexican waters, upon a Plaintiff’s filing informing the court of the defendants’ express

 submission, a federal court will assume jurisdiction under article 23 of the FCCP.” The question

 becomes, then, whether Plaintiffs properly informed the Mexican courts of Defendants’

 stipulations or Judge Ward’s orders dated April 20 and May 4, 2011. The court finds they did

 not.

        Despite Plaintiffs’ assertions to the contrary, the evidence in the record suggests that the

 Mexican courts were not aware of Defendants’ consent to jurisdiction. First, the dismissal orders

 by the Mexican judges made no reference to Defendants’ jurisdictional submission.5              This

 indicates that the Mexican judges were not apprised of Defendants’ position or their stipulations



        5
          The Mexican dismissal orders did not state or suggest, for example, that despite Defendants’
 submission to jurisdiction, the court nonetheless declined to exercise jurisdiction.

                                                  11
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 12 of 15 PageID #: 6045



 by Plaintiffs. Second, the complaints filed in Mexico do not state that Defendants submitted to

 jurisdiction in Mexico. Rather, the complaints contain the following paragraphs:

        [T]he order from the Court of the United States in the East [sic] District of Texas,
        Lufkin Division, the same that serves to justify the facts narrated in this document
        as number 10 and which has its basis on the Articles 129, 130, 132, and the other
        related articles of the Federal Code of Civil Procedures.

        [T]here has been an attempt to sue before the United States Court in the Eastern
        District of Texas, Lufkin Division, the parties hereby sued but nevertheless, such
        Court provided on April 20, 2011, that such claim shall be filed before the
        Mexican Courts, being competence of this District Court.

 Although Plaintiffs cite to these paragraphs as proof the they advised the Mexican courts of

 Defendants’ consent to jurisdiction, these provisions merely acknowledge that the lawsuits were

 previously filed in the Lufkin Division of the Eastern District of Texas. They do not advise the

 court of Defendants’ express consent to jurisdiction. Notably, Plaintiffs’ counsel chose to file

 similarly-worded complaints after receiving dismissal orders for the first several cases instead of

 correcting the inadequacies by expressly stating that Defendants had submitted to Mexico’s

 jurisdiction in writing.

        Third, Plaintiffs did not file translated copies of the stipulations or the court’s orders dated

 April 20 and May 4, 2011. Under article 271 of the FCCP, “any writing in a foreign language

 shall be accompanied by its corresponding translation to Spanish.”            CODIGO FEDERAL DE

 PROCEDIMIENTOS CIVILES [FCCP], art. 271. In addition, Article 569 of the FCCP provides that

 when dealing with “judgments, decisions or jurisdictional determinations that will only be used

 as evidence before the Mexican courts, it will suffice if those documents satisfy the necessary

 requirements to be considered authentic.” CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES

 [FCCP], art. 569. As explained by Wobeser Hoepfner, this court’s documents are considered


                                                  12
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 13 of 15 PageID #: 6046



 authentic in Mexico if they satisfy the requirements from the Hague Convention Abolishing the

 Requirement for Legalization for Foreign Public Documents (Articles 2-5), to which both Mexico

 and the United States are parties, by presenting such documents duly apostilled and with a proper

 translation pursuant to FCCP Article 271. See Jorge A. Vargas, Mexican Law for the American

 Lawyer, 117, 199-200 (2009) (explaining “authentic documents” as a form of evidence and the

 need for an “apostille”6); see also Texas Secretary of State, Authentication of Documents,

 http://www.sos.state.tx.us/authfaqs.shtml.

         Plaintiffs have attached receipts acknowledging the filing of the complaints in Mexico. The

 receipts include a list of exhibits attached to each complaint. A review of the lists, however,

 suggests that Plaintiffs failed to file with the Mexican courts original apostilled copies with their

 corresponding translations into Spanish of Judge Ward’s orders dated April 20, 2011, and May

 4, 2011, or an original apostilled copy and translation of the Defendants’ April 29, 2011,

 stipulations. Several of the receipts make reference to: (i) “simple” copies of the English version

 of the April 20, 2011, order; (ii) “simple” copies of the English version of the April 20, 2011,

 and May 4, 2011, orders; and (iii) “simple” copies of the court’s orders without noting which

 specific order or whether it was in English or Spanish. Some of the lists of attachments also

 mention the inclusion of an “apostille” and “statement of effect of apostille,” but these appear to

 be “simple” copies rather than originals. According to various Mexican precedents, simple copies



         6
            An “apostille” is “a standard certification provided under the Hague Convention for
 authenticating documents used in foreign countries.” BLACK’S LAW DICTIONARY 112 (9th ed. 2009). The
 purpose of an apostille is to “abolish the requirement of diplomatic or consular legalization for foreign
 public documents.” Secretary of State, Authentication of Documents, http://www.sos.state.tx.
 us/authfaqs.shtml. A completed apostille certifies the authenticity of a signature, the capacity in which the
 person signing the document has acted, and identifies the seal/stamp which the document bears. See id.;
 see also Jorge A. Vargas, Mexican Law for the American Lawyer, 117, 199-200 (2009).

                                                      13
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 14 of 15 PageID #: 6047



 (those lacking any stamp, seal, or signature) are accorded little or no probative value unless they

 are weighed together with other evidence. See Docket No. 277-1 (Declaration of Wobeser

 Hoepfner and copies of Mexican precedents). Moreover, except in the case of Plaintiff Feliciana

 Perez Lopez de Alcudia (“Perez Lopez”),7 there appears to be no Spanish translation of Judge

 Ward’s orders.

        Apart from the aforementioned receipts, Plaintiffs have also failed to provide this court

 with any copies of the original apostilled orders issued by Judge Ward or Defendants’ stipulations

 (and their translation into Spanish) with some sort of marking (such as a date stamp by the

 Mexican court) to confirm that the documents were properly filed in the Mexican courts. These

 failures, along with counsel’s decision to omit any express statement in the complaints informing

 the Mexican courts of Defendants’ written submission to jurisdiction strongly suggests that

 Plaintiffs did not provide the Mexican courts with translated copies of Defendants’ stipulations and

 duly apostilled, translated copies of Judge Ward’s April 20 and May 4, 2011, orders.

        Furthermore, although the return-jurisdiction clause in this case did not expressly require

 Plaintiffs to appeal the Mexican judgment, their failure to do so is perplexing given the clear

 Mexican legal authority supporting the exercise of jurisdiction in cases where, as here, Defendants

 have consented in writing to the jurisdiction of the Mexican courts. See Aldana, 2012 WL

 5364241, at *7 (holding that even though the return-jurisdiction clause did not condition

 reinstatement on appellate review by the foreign court, the plaintiffs’ failure to seek “final




        7
         In Perez Lopez’s case, it is unclear from the record which documents were produced in English
 and which were produced in Spanish.

                                                  14
Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 15 of 15 PageID #: 6048



 appellate review” “preclude[ed] [the court] from finding the ‘exceptional circumstances’ standard

 is met”).

        For these reasons, the court finds that Plaintiffs did not comply with Mexican procedural

 law and did not prosecute their cases in good faith. Thus, because they have not satisfied the

 conditions set forth in the return-jurisdiction clause, reinstatement is not warranted.8

 III.   Conclusion

        Consistent with the foregoing analysis, Plaintiffs’ motion to reinstate is DENIED.

 Plaintiffs shall not seek reinstatement in this court unless and until they have pursued their claims

 in Mexico with diligence and good faith, including seeking final appellate review of any Mexican

 dismissal. order.9
         SIGNED at Beaumont, Texas, this 7th day of September, 2004.
            SIGNED at Beaumont, Texas, this 14th day of May, 2014.




                                             ________________________________________
                                                         MARCIA A. CRONE
                                                  UNITED STATES DISTRICT JUDGE




        8
           Given this conclusion, the court need not address Defendants’ other arguments against
 reinstatement.
        9
         According to Defendants’ expert, Plaintiffs’ claims were dismissed without prejudice by the
 Mexican courts. Thus, Plaintiffs can revise their complaints and re-file them in Mexico.


                                                  15
                                                              EXHIBIT "C"

                                                   Loyola Marymount University and Loyola Law School
                                                   Digital Commons at Loyola Marymount
                                                   University and Loyola Law School
Loyola of Los Angeles International and
                                                                                                                                      Law Reviews
Comparative Law Review


3-1-1986

Moral Damages in Mexican Law: A Comparative
Approach
Edith Friedler




Recommended Citation
Edith Friedler, Moral Damages in Mexican Law: A Comparative Approach, 8 Loy. L.A. Int'l & Comp. L. Rev. 235 (1986).
Available at: http://digitalcommons.lmu.edu/ilr/vol8/iss2/2


This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law
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       Moral Damages in Mexican Law: A
             Comparative Approach
                                     EDITH FRIEDLER*


                                I.    INTRODUCTION**

          A California resident is severely injured while vacationing in a
      small Mexican resort. The airline that operates the only flight to
     Los Angeles at the time of the accident refuses to fly the injured
     person home, disregardingthe serious condition and possible threat
     to human life. In an action for wrongful death againstthe airlineby
     the spouse, one of the issues likely to be raised will be whether under
     Mexican law punitive damages are recoverable.

      Situations like this occur rather frequently, raising numerous
legal issues under foreign law. Although the preceding fact situation
may raise conflict of laws issues and issues under the Warsaw Con-
vention, 1 this article deals exclusively with the governing tort liability
and damages. In particular it focuses on "moral damages ' 2 under
Mexican law.
      The geographical proximity between California and Mexico pro-
vides opportunities for commercial and non-commercial interaction
between citizens of Mexico and citizens of the United States. The
relationships thus created often involve legal issues that may eventu-
ally result in litigation. Conflict of laws issues are likely to arise and
application of foreign law is frequent, in spite of modern theories of
      * J.D., 1964, University of Chile; J.D., 1980, Loyola Law School, Los Angeles, Califor-
nia. Associate Professor of Law, Loyola Law School.
     ** The author gratefully acknowledges Professor Harry Laughran's invaluable
suggestions and continuous support in the development of this article. The author is also
grateful to professors Michael Wolfson and Victor Gold for their comments in developing
,various drafts of this article. The writer wishes to thank her research assistants Mary Ann
Morrison and Carmen Castello for their contributions in the preparation of this article.
      1. The Warsaw Convention, formally titled Convention for the Unification of Certain
Rules Relating to International Transportation by Air, was created on October 12, 1929, and
was adhered to by the United States on June 15, 1934. The official text of the treaty is in
French and is published at 49 Stat. 3000 (1934). An English translation is published at 49 Stat.
3014 (1934) and reprinted in T.S. No. 876, 137 L.N.T.S. 11 and 49 U.S.C. app. § 1502 (1976).
For a comprehensive comment, see Lowenfeld and Mendelsohn, The United States and the
 Warsaw Convention, 80 HARV. L. REV. 497 (1967).
      2. Moral damages are damages that can be recovered for a non-pecuniary or non-mate-
rial loss or injury. See infra text accompanying notes 91-93.
                      Loy. L.A. Int'l & Comp. L. J.                                 [Vol. 8:235

interest analysis. 3 Therefore, the California practitioner benefits from
a basic knowledge of civil law and Mexican law.
      While Mexico and the United States are geographically close, so-
cially and culturally they are light years apart. Mexico is part of the
third world. The differences between the United States and Mexico
have many significant implications on legal relations between Mexi-
cans and Americans who visit Mexico. For example, because many
Americans do not realize the hazards of life and business in Mexico,
they cannot anticipate potential problems. Once such problems are
encountered Americans may misjudge what Mexican law can and will
do for them. Americans tend to assume that the moral principles and
value hierarchy that govern life in the United States also govern the
lives of people everywhere. This ethnocentric view of the world
presents a great problem when Americans have dealings in Mexico.
      The law of punitive damages is one of the best illustrations of the
diverging values and expectations concerning the law between Mexico
and the United States. This article will show that while the concept of
moral damages under Mexican law has nothing to do with the notion
of punitive damages present in American jurisprudence, it is similar
to the United States' practice of awarding damages for emotional
distress.
      Since Mexico is a civil law, rather than a common law country,
Section II will discuss fundamental civil law concepts, including a
brief discussion of torts and damages. Section III will explore basic
theories of tort liability according to Mexican law, and deals with the
notion of moral damages in Mexico and applies this concept to spe-
cific fact situations. Section IV discusses the relationship between
moral damages in Mexico and the United States' practice of awarding
damages for emotional distress. 4

     3. Professor Brainard Currie developed the "governmental interest analysis approach"
to choice of law. This approach examines the policies expressed in the respective laws that
may govern a case and the circumstances in which it is reasonable for the respective states to
assert an interest in the application of these policies. If after going through the analysis that
Currie suggests, a court finds that a conflict between the legitimate interests of the two states is
unavoidable, it should apply forum law. See generally B. CURRIE, SELECTED ESSAYS ON THE
CONFLICTS OF LAWS (1963). However, in a recent case between a California grower and a
United States corporation the California Supreme Court held that Mexican law rather than
California law should apply. Wong v. Tenneco, Inc., 39 Cal. 3d 126 (1985). In Wong the
California grower was conducting farming operations in Mexico that were illegal under a Mex-
ican law which prohibited foreign ownership and control of farming operations. He sued the
United States corporation for anticipatory damages for breach of a marketing agreement con-
cerning crops grown in Mexico. Id.
     4. Civil law and common law evolved from different sources and in different ways.
1986]                     Moral Damages in Mexican Law                                     237

 II.    BASIC CIVIL LAW CONCEPTS RELATING TO TORT LIABILITY
                                     AND DAMAGES

                         A.     Fundamentalsof Civil Law
      The term "civil law" originated from the latin words jus civile,
the law of the civitas. Civitas was a Roman city where only Roman
citizens or cives could assert legal rights and privileges under the Ro-
man law. 5 The ius gentium, "principles of law. . . common to man-
kind (gentes) applied to all other free inhabitants of the Roman
          6
Empire."
      The system of civil law is commonly believed to have originated
at the time of the publication of the Law of the XII Tables in Rome in
450 B.C. Today, civil law is the dominant body of law throughout
most of Western Europe, all of Central and South America, many
parts of Asia and Africa, and even in a few enclaves in common law
countries. For example, the United States is a common law country,
but Louisiana and Puerto Rico are civil law jurisdictions. Similarly,
though Canada is a common law country, Quebec is a civil law
              7
jurisdiction.
      The term "civil law" refers to the Roman law as set forth in the
Justinian Code in the 6th Century A.D. 8 as reinterpreted by the

There are terms like "tort" in common law and "fault" in civil law that cannot be translated
from one legal system into the other because the concepts themselves are different. Therefore,
an effort is made to provide the reader with a basic explanation as to the meaning of unfamiliar
terms. To aid in the understanding of the paper, the author uses some conventional terms with
a given meaning. For example, instead of talking about civil delicts and quasi delicts which
together are the closest equivalent in civil law to the common law "tort," the word "civil tort"
is employed. Each term is defined in the section in which it appears.
      5. Dainow, The Civil Law and the Common Law. Some Pointsof Comparison, 15 AM. J.
CoMP. L. 419, 420 (1967).
     6. The ius gentium may be defined as the universal element, in antithesis to the
     national peculiarities (ius civile), to be found in the positive law of every state ...
     In a practical sense ius gentium covered only those rules, institutions and principles
     of actual Roman Law which, owing to their simplicity and correspondence with the
     general practice of mankind, were applied to cives and peregriniindifferently, the ius
     civile describing, in this antithesis, those not so extended.
F. DE ZULUETA, THE SCIENCE OF LAW IN THE LEGACY OF ROME 201-02 (1962).
    7. J. MERRYMAN & D. CLARK, COMPARATIVE LAW: WESTERN EUROPEAN AND
LATIN-AMERICAN LEGAL SYSTEMS, CASES AND MATERIALS 3 (1978).
      8. Roman law was the law of the Roman citizens from 450 B.C., the date of the publica-
tion of the Law of the Twelve Tables, until 565 A.D., the date of the death of the emperor
Justinian. This emperor codified the existing Roman law, including his own legislative enact-
ments in a monumental work, The Corpus Juris Civilis. With the fall of the Roman Empire,
The Corpus Juris Civilis fell into disuse and systems of Roman Vulgar Law (Roman law in a
cruder version) took its place together with Germanic legal customs as the law of the peoples
settling in Western Europe. In the 11th century, with the founding of the University of
238                  Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

Glossators, Commentators, Humanists and Natural Law exponents,
and ultimately recodified in the nineteenth century. 9 Modem civil
law has also been influenced by Canon Law and Germanic customary
law. '0
       There are three fundamental differences between civil law and
common law: (1) the sources of law; (2) the role of the judge; and (3)
the nature of the proceedings.
       In a civil law system the primary source of law is codified legisla-
tion, whereas a common law system relies primarily on stare decisis,
or case law. Civil law codes usually differ from common law statutes
in the following ways:
      A [civil law] code is not a list of special rules for particular situa-
      tions; it is rather, a body of general principles carefully arranged
      and closely integrated. A [civil law] Code achieves the highest
      level of generalization based upon a scientific structure of classifi-
      cation. A [civil law] Code purports to be comprehensive and to

Bologna, The Corpus Juris Civilis of Justinian was not only the subject matter of legal educa-
tion, but it became the law of the Holy Roman Empire. The law courses at Bologna attracted
students from all over Europe. These students in turn, applied Roman law in their own coun-
tries. New universities were founded in the image of Bologna and, so, Roman law became the
ius commune (the common law) of Western Europe.
      There were different opinions as to the right way of approaching the study of Justinian's
The Corpus Juris Civilis and so, Glossators, Post Glossators, Humanists, Natural Law expo-
nents and scholars of the Historical school all left their mark in this system of law. With the
growth of the concept of nation and sovereignty in the 15th Century, the idea of ius commune
faded and Roman law was "received," that is incorporated as a binding body of law in the
national law of each country. Eventually, in the 19th Century the principal states of Western
Europe enacted civil codes (and other codes) of which the French Civil Code of 1804 is the
archetype. Id. at 72-73.
           The subject matter of these civil codes was almost identical with the subject
      matter of the first three books of the Institutes of Justinian and the ius commune of
      medieval Europe. . . . A European or Latin American [Mexican] civil code of to-
      day clearly demonstrates the influence of the Roman law and its medieval revival.
Id. at 73.
      The French Civil Code together with its legal institutions and scholarship has influenced a
majority of civil law countries. The armies of Napoleon carried French law throughout Eu-
rope and later this influence took place under French Colonialism. When the Spanish Empire
in Latin America dissolved in the 19th Century, it was to the French Civil Code that the law
makers of the new nations turned for inspiration. The French Civil Code remains in effect to
this day with revisions, inter alia, in the Spanish Civil Code of 1888. M. GLENDON, M.
GORDON & C. OSAKWE, COMPARATIVE LEGAL TRADITIONS.                     TEXT, MATERIALS AND
CASES   55 (1985). Thus, mentions to the French Civil Code and to French scholarship are
frequent in this paper.
     9. Schiller, The Nature and Significance of Jurists Law, 47 B.U.L. REV. 20, 37-38
(1967).
    10. For a very good study of the influence of Roman Law on Western law see P. Kos-
CHAKER, EUROPA UND DAS ROMISCHE RECHT              (1947).
1986]                     Moral Damages in Mexican Law

      encompass the entire subject matter, not in the details but in the
      principles, and to provide answers for questions which may arise. I'
       Common law statutes do not maintain the same level of general-
 ity as civil law codes do, nor do they purport to be all embracing.
 They do not have the conceptual and terminological consistency
 found in the codes. The legislature resorts to statutes to respond to
 current particularized needs, i.e., rent control, environmental regula-
 tion, labor practices, etc. Statutes outside of the codes are more easily
 amended and, therefore, more appropriate as circumstances change.
       Civil law codes tend to be more general and encompass a broader
 range of circumstances than do common law statutes. In civil law,
 legal scholars' views and treatises are treated as a primary source of
 law, while in common law the legal scholars' views are given less
 weight. In spite of the differences between common law and civil law,
 the growing importance of case decisions in civil law and the greater
 tendency to rely on statutes in common law has begun to create an
 area of convergence between common law and civil law. 12
       The role of the judge in civil law differs from the role of the judge
 in common law. This is due in part to the difference in the source of
 law between the two systems. Civil law judges must apply codified
 law by means of a process of deduction, in which general codified
 principles are applied to a specific case before the judge.' 3 For in-
 stance, in an action for wrongful death brought in a French court, a
judge must look at the specific fact situation and decide whether there
 is a tort which is actionable under section 138214 of the French Civil
 Code. 15
       Civil law codes attempt to cover a wide range of unforeseen fact
 situations by way of substantive provisions of utmost generality and
     11. Dainow, supra note 5, at 424.
     12. For a good analysis of the role of statutes in modem civil law and common law, see
Glendon, The Sources of Law in a ChangingLegal Order,17 CREIGHTON L. REV., 663, 668-69
(1984).
     13. For a good discussion of the role of a judge in civil matters in France, see Perrot, The
Judge: The Extent and Limit of His Role in Civil Matters, 50 TUL. L. REV. 495 (1976).
     14. In France and most civil law countries including Mexico, the code sections are num-
bered using the term article or articulo. These terms have been translated into English as
"articles" or "sections." Since the term "article" is more appropriate for use in constitutional
and international law, for the purposes of this paper, the word "section" will be used where
referring to the codes.
     15. CIVIL CODE [C. CIV.] § 1382 (amended July 1, 1976) (J. Crabb trans. 1976) (Fr.).
Section 1382 is the most important statute on tort liability in French law. In very general
terms it provides that: "Any act whatever of man which causes damage to another obliges him
by whose fault it occurred to make reparation." Id.
240                   Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

flexibility. These so called "general clauses" of the codes may pro-
vide, for example, that all immoral transactions are void or that every
obligation must be performed in good faith. 16 Thus, in an action for
damage of goods in a civil law country which has not enacted anti-
trust legislation, an exclusion of liability clause in a contract will most
likely be considered immoral or contra bonos mores,1 7 and the judge
will declare the exclusion clause void and find for the plaintiff.18
      If there are gaps or lacunae in the code (that is, there are no
statutes which specifically pertain to the particular case), the judge
must nevertheless decide the case, either by use of general clauses, by
analogy, or by applying general principles of law. A judge cannot
refuse to decide a case simply because there is no applicable law gov-
erning the case. 19
      For example, the French legislature in 1804 did not envision lia-
bility for automobile accidents. The only code section that by analogy
could be said to apply to automobiles was section 1384 of the Civil

     16. Section 242 German Civil Code: "The obligor is bound to perform the obligation in
such a way as is required by the principles of bona fides with due regard to existing usage."
The CIVIL CODE. [C. CIV.] § 242 (amended Jan. 1, 1976) (W. Ger.) (. Forrester, S. Goren &
H. Ilgen trans. 1976). The German Civil Code enacted in 1896 and in effect as of January 1,
1900 as amended, remains the law of the German Federal Republic (West Germany). All
references to the German Civil Code in this paper refer to the 1896 (West German) Code as
amended.
     17. Section 138 Subdivision (1) German Civil Code: "A jural act which is contra bonos
mores (violative of the commands of morality) is void." C. civ. § 138 SUB. I (amended Jan. 1,
1976) (W. Ger.) (. Forrester, S. Goren & H. Ilgen trans. 1976).
     18. Many civil law countries use contra bonos mores (against good morals or against good
customs or simply immoral) as a "general clause" that allows a judge great flexibility in decid-
ing whether a particular conduct is immoral and, therefore, becomes a basis of liability. For
example, Section 1133 of the French Civil Code states: "A causa is illicit when it is prohibited
by law, or when it is contrary to morality or public policy." C. av. § 1133 (amended July,
1976) (Fr.) (. Crabb trans. 1976). The same idea is reflected in Section 1910 of the Mexican
Civil Code: "He who acting illegally or against good customs causes damage to another, is
obliged to repair it, unless he proves that the damage occurred in consequence of the fault or
inexcusable negligence of the victim." (M. Gordon trans. 1980). Mexico, like the United
States, is a Federal Republic with twenty nine states, two territories and a federal district like
the District of Columbia. All references to the Mexican Civil Code in this paper are directed
to the Civil Code for the Federal District and Territories, promulgated August 30, 1928, effec-
tive October 1, 1932. This Code has served as a model to the civil code of the individual states
and is also used as a "back up" code for interpreting federal case law. See Butte, Strict Liabil-
ity in Mexico, 18 AM. J. CoMp. L. 805 n.2 (1970).
     19. "The judge who refuses to judge, on pretext of the silence, obscurity or insufficiency
of the law, may be prosecuted as guilty of a denial of justice." C. civ. 4 (amended July 1,
1976) (J. Crabb trans 1976) (Fr.). "The silence, obscurity or insufficiency of the law do not
authorize the judges or courts to refrain from deciding a controversy." Mexican Civil Code
18. (M. Gordon trans. 1980).
1986]                      Moral Damages in Mexican Law

Code which states: "[e]veryone is responsible not only for the dam-
ages caused by his own acts, but also for damage caused by acts of
persons for whom he must answer or by objects in his custody."' 20 In
 1930 the highest French court (Cour de Cassation) decided that this
section established an independent basis of liability and that the custo-
dian (owner or driver) of an automobile (or other instrumentality)
                                                      21
which causes an accident, is presumptively liable.
      The preliminary titles of most civil codes, with the exception of
the German Code, contain directions on interpretation and applica-
tion of the code. 22 The codes normally order judges to base their deci-
sions on specific code sections. 23 Normally, a judge may not base his/
her decision on prior case law. To do so would convert a prior judi-
cial decision into a "general rule of conduct" 24 (staredecisis), which is
not normally permitted in a civil law system.
      Civil law judges must cite at least one statutory provision as a
basis for their decision. A decision based solely on case precedent will
be reversed for "lack of legal basis."' 25 However, in some civil law
countries, including Mexico, a court decision may become law. This
occurs when a particular legal issue is decided by the highest court,
or another specified tribunal, in an appreciable number of cases. The
uniform judicial decisions become juris prudence constante or juris-
prudencia (Mexico), which may become binding law in future cases.
Resort to jurisprudence constante is particularly helpful in situations
where there are very few legislative provisions, as in France in con-

    20.   C. civ. § 1384 (J. Crabb trans. 1976) (Fr.).
    21.   R. SCHLESINGER, COMPARATIVE LAW, CASES AND MATERIALS 514-15 (4th ed.
1980).
     22. "When there is no law exactly applicable to the point in controversy, the customs of
the place shall be observed, and in the absence thereof, the general principles of law." Spanish
Civil Code § 6, quoted in id.at 228. "Juridical controversies of a civil nature shall be decided
in accordance with the letter of the law or its juridical interpretation. In the absence of a law,
they shall be decided in accordance with general legal principles." Mexican Civil Code § 19
(M. Gordon trans. 1980).
     23. "Judges are forbidden to pronounce decisions by way of general and regulative dispo-
sition on causes which are submitted to them." C. civ. § 5 (J. Crabb trans. 1976) (Fr.). A
judge who violates this prohibition is, theoretically, guilty of a criminal offense. CODE PENAL
[C. PEN.] 127 (Fr.) quoted in R. SCHLESINGER, supra note 21, at 578.
     24. R. SCHLESINGER, supra note 21, at 578.
     25. The traditional style of French decisions has historical roots. After the Revolution of
1789, the French people deeply distrusted judges because of the experiences under the royal
regime. Also, Montesquieu had proclaimed the doctrine of separation of powers and only the
legislature could make law in a general way. H. CAPITANT, LES GRANDS ARRETS DE LA JU-
RISPRUDENCE CIVILE (7th ed. 1976) reprinted in H. LIEBESNY, FOREIGN LEGAL SYSTEMS, A
COMPARATIVE ANALYSIS 56-59 (4th ed. 1981).
242                    Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

nection with tort liability. 26
      The final difference between civil law and common law is found
in the nature of the judicial proceeding. In civil law there is neither a
"trial," nor a jury. The civil law system prefers documentary evi-
dence over witness testimony, with the latter receiving very little
weight. 27 In addition, in a civil law court, only the judge cross-exam-
ines witnesses. Civil court proceedings consist of a series of isolated
hearings. Further, there is no formal pre-trial discovery.

                      B.     The Concept of Tort in Civil Law
      In order to comprehend the notion of tort liability under Mexi-
can law, and in particular, moral damages, a brief explanation of the
civil law counterpart of common law tort liability is necessary. The
statements that follow refer to the civil law in general. The basic prin-
ciples of civil law tort liability apply to Mexican law. Any general
differences between Mexican law and civil law will also be discussed
below.
      There is no equivalent civil law term for the common law term
"tort." The common law term "tort" is extremely difficult to trans-
late into civil law terminology because of the fundamental division of
civil law into "public law" and "private law." '2 8 As a consequence of
this division, tort liability belongs to the category of private law and is
part of the law of obligation or a source of an obligation. 29 The law of

    26. It is interesting to observe that out of a total of 2283 sections in the French Civil
Code, only five (1382-86) are devoted to what the common law calls tort liability. Most of the
French law on this subject was developed by the French highest court, the Cour de cassation,
acting very much like a Common Law court. Tunc, The Twentieth Century Development and
Function of the Law of Torts in France, 14 INT'L & COMP. L.Q. 1089, 1091 (1965).
    27. Documentary evidence is similar to common law "writings" which are one category
of demonstrative evidence.   MCCORMICK ON EVIDENCE         524 (E. Cleary 2d ed. 1972).
     28. Roman law and continental European legal doctrine and its offspring divide all law
into public law and private law. Public law is understood to be that body of law which governs
the affairs of the community (state, municipalities, etc.). Private law regulates such legal rela-
tions in which persons (without any display of authority, that is, on the basis of equality) stand
against each other as individuals. M. KASER, ROMAN PRIVATE LAW 22 (R. Sannenberg &
Butterworths trans. 1965).
     29. An obligation is a bond by which the one party is bound to perform and the other
entitled to receive some act or forbearance. The term obligatio sometimes denotes the right,
oftentimes the duty, but more properly it denotes the whole relationship. B. NICHOLAS, AN
INTRODUCTION TO ROMAN LAW           158 (1962). This concept of obligation is derived from the
Roman Law as found in Digest 44.7.1 and Inst. 3, 13.2. (These references are to the Digest and
the Institutes which comprise two parts of Justinian's The Corpus Juris Civilis. See supra note
8). The other two parts are the Code and the Novels. Id. For a good summary of Roman
sources and explanations as to their conventional citation, see A. SCHILLER, ROMAN LAW
1986]                      Moral Damages in Mexican Law                                      243

obligations covers all acts or situations which can give rise to rights or
claims and is customarily divided into three parts: the law of con-
                                                              30
tracts, the law of torts, and the law of unjust enrichment.
     There are two civil law terms which relate to the common law
concept of tort. They are delict and quasi-delict.31 These terms apply
to both criminal and civil causes of action. Penal delicts and penal
quasi-delictsare governed exclusively by the penal codes and therefore
are not pertinent to this discussion of tort liability.
     The terms civil delict and civil quasi-delict parallel the common
law notions of intentional and negligent tort. 32 Generally, a delict is
an unlawful or illicit act committed with intent to harm and a quasi-
                                                                        33
delict is an unlawful or illicit act committed without intent to harm.
     In civil law there are no torts, there is only a law of tort. 34 This
means that in civil law there are no specific torts such as false impris-
onment, assault or battery. Section 1382 of the French Civil Code is
a good example of a civil law code concerning the law of tort. It
provides: "Any act whatever of man which causes aamage to another
obliges him by whose fault it occurred to make reparation. 3 5 The
section is drafted in a very general manner. There are no specific torts
and therefore even the distinction between negligent and intentional
torts becomes irrelevant. The only distinction among the different
theories of liability is reflected in the amount of damages awarded.

chapter 11 (1978). The situations that give rise to an obligation according to the Romans were
contracts, quasi contracts, delicts and quasi-delicts. Inst. 3, 27, 4, 5 respectively.
    30. "The distinction between contractual and delictual (tort) responsibility has been
treated as fundamental in civil law theory, even though both contract and delict are regarded
as parts of the single field of obligations." M. GLENDON, M. GORDON & C. OSAKWE, supra
note 8, at 262.
    31. As an example, one person may have a claim against another because he or she gave a
sum of money to another as a loan. This claim arises from a contract. A person may also have
a claim against another because someone wrongfully damaged a thing belonging to that per-
son. This claim against the wrongdoer arises from the delict. Today, this would be a claim for
damages. M. KASER, supra note 28, at 135.
    32. The term "civil tort" will be used in this paper to refer to civil law torts, that is civil
delicts and civil quasi-delicts (intentional and negligent tort).
    33. A. VON MEHREN & J. GORDLEY, THE CIVIL LAW SYSTEM 577 n.44 (2d ed. 1977).
    34. Speaking of French law, Tunc says: "We have no specific torts. We have a general
law of tort, based on the general principles of Articles 1382 and 1383." Tunc, supra note 26, at
1091. The use of the word in the singular is deliberate. "The common law knows not tort but
torts-a bag of nuts and bolts." Catala & Weir, Delicts and Torts: A Study in ParallelPart I,
37 TUL. L. REV. 573, 580 (1963). "The French law of tort is essentially judicial application of
five articles of the civil code. In contrast, the common law systems know not contracts, but
contract." H. DE VRIES, CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 367 (1973).
    35. C. ciV. § 1382 (J. Crabb trans.) (Fr.).
244                  Loy. L.A. Int'l & Comp. L. J.                             [Vol. 8:235

Tort law in most civil law countries, including Mexico, is founded on
                                                     36
sections 1382 and 1383 of the French Civil Code.
      Sections 1382 and 1383 are derived from the famous Lex Aquilia
enacted by the Romans in 286 B.C. 37 The Lex Aquilia with its exten-
sions provided the most comprehensive and important tort remedy
available in Roman law. A brief look at the Roman notion of "tort"
is necessary to understand the modem civil tort.
      Roman law was also divided into public and private law. 38 Con-
sequently, the Romans distinguished between crimes against the com-
munity or state, called crimina publica and wrongs against the
individual, his family or his property, called delicta privata. Crimina
publica were litigated by the state and typically involved treason and
assaults on government officials. The delicta privata, from which to-
day's civil law concepts of delict and quasi-delict originated, could be
litigated in a private suit only by the victim. The wrongdoer was
treated as the debtor of the victim, which meant that the victim was
entitled to a sum of money from the wrongdoer. Thus, the Roman
law delict action gave rise to an obligation to pay a sum of money
(poena)39 to the victim, in addition to any other damages awarded to
the victim. 40
      For example, delictal actions were classified as penal (actio ex

     36. "Any act whatever of man which causes damage to another obliges him by whose
fault it occurred to make reparation." C. civ. § 1382 (J. Crabb trans.) (Fr.). "Everyone is
responsible for the damage he causes, not only by his act, but also by his negligence or his
imprudence." Id. at § 1383.
     37. The Lex Aquilia allegedly of 286 B.C. was voted as a plebiscite, that is by the con-
silium plebis, the assembly of the Plebeians. Initially it would only have been enforced
amongst the Plebeians, but in the same year the Lex Hortensiawas passed and it gave plebi-
scites general force of law over Patricians and Plebeians alike. JORS & KUNKEL, DERECHO
PRIVADo ROMANO, 364-65 (1965). The text of the Lex Aquilia as extended by the Praetor
(the Roman magistrate in charge of judicial affairs) and with the comments of the jurists is
found in Digest, 2, 1-11. See supra note 29.
     38. See supra note 28.
     39. The poena (punishment) is pecuniary and its purpose is to benefit the victim. This is
a residue of the primitive concept that the sanction for every wrong was private vengeance
from which the wrongdoer could not escape unless the victim or his family would accept
ransom money. That the punishment was a sum of money and that the cause of action be-
longed to the victim does not prevent it from being primarily a way of inflicting punishment.
V. ARANGIo-Ruiz, LAS ACCIONES EN EL DERECHO PRIVADO ROMANO 127-28 (1945). The
same line of thought is found in W. BUCKLAND & A. McNAIR, ROMAN LAW AND COMMON
LAW 344 (1952).
   40. B. NICHOLAS, supra note 29, at 210. R. MONIER, MANUEL DE DROIT ROMAIN.
LES OBLIGATIONS 38 (1954).
1986]                     Moral Damages in Mexican Law                                     245

delicto).4 1 In contrast, all other private law actions, whether in rem 4 2
or in personam,4 3 were classified as compensatory actions (reipersecu-
tory or ad rem persequendam).4 One of the delictaprivata was theft
(furtum), and the appropriate action for theft was the actio furti, a
penal action. It allowed for the recovery of double, triple, or quadru-
ple the value of the stolen thing according to certain distinctions in
the law. If the stolen thing was in the hands of a third party, the
victim could use the actio furti as rei persequendam to recover the
                                45
stolen property or its value.
      Unlike civil law today, Roman law did not use the terms delict
and quasi-delict to distinguish between intentional and negligent ac-
tions. However, the terms delict and quasi-delict did exist in Roman
law. In Roman law, delict referred to four fact patterns which consti-
tuted a private offense. These four private law delicts (delictaprivata)
were: (1) theft (furtum), (2) robbery (rapina), (3) damage unlawfully
caused (danum iniuriadatum), and (4) insult (iniuria).4 6 A delict in
Roman law could consist of either intentional or negligent conduct.
      There were also only four fact situations which comprised the
Roman law quasi-delict. These were: (1) judicial acts contrary to the
law (iudex, qui litem suam fecerit); (2) things thrown or poured into
the street from a dwelling (directum vel effusum); (3) something
placed on, or suspended from, a building which fell and injured some-
one (positum vel suspensum); and (4) loss to a customer by thievery or
by damaging the customer's property caused by an innkeeper's assist-
ants (nauta, caupo and stabularius).4 7 Thus, Roman law quasi-delicts
could consist of either intentional or negligent conduct. Furthermore,
the last three situations actually gave rise to actions based on what the
common law would consider strict liability. The criteria for catego-
rizing the aforementioned fact patterns as either delicts or quasi-de-
licts remains unclear.

    41. Examples of these actiones delicto are: actiofurti (theft), actio iniurarum (bodily in-
jury and insult to person). B. NICHOLAS, supra note 29.
    42. Typical actions in rem were reivindicatio(protection of property) and vindicatio servi-
tutis (protection of easement). Id.
   43.   Frequently used actions in personam were actio certae creditaepecuniae (recovery of
money loaned) and actio venditi (action of the seller to obtain payment for the thing sold). Id.
   44. "A rei persecutory action commonly results in the payment of compensation, and a
penal action in the payment of more than compensation, but the essential distinction is to be
found in the punitive or vindicative character of the penal action." Id. at 210.
   45.   Id. at 212-13.
   46.   Gaius, Institutes 3, 182. See supra note 29 for reference to Roman sources.
   47.   Digest 44.7.5; Inst. 4, 5. See supra note 29.
                        Loy. L.A. Int'l & Comp. L. J                               [Vol. 8:235

      The concept of fault or culpa, the cornerstone of civil tort liabil-
ity, originated from the Lex Aquilia which introduced extra-contrac-
tual fault 48 for the first time (although the concept of fault existed in
contract actions prior to the Lex Aquilia). The Lex Aquilia essentially
made the defendant liable for damages if the defendant acted iniuria,
that is, non iure or without a right. 49 The Roman law concept of
"fault" was referred to as Aquilian or delictal in order to differentiate
it from contractual fault. Aquilian or delictal fault formed the basis of
French civil tort liability5° which in turn formed the basis of Mexican
civil tort liability.
      The French Civil Code does not define fault. However, section
 1382 of the French Civil Code alludes to the concept of fault. Section
 1382 provides that: "[a]ny act whatever of man which causes damage
to another obliges him by whose fault it occurred to make repara-
tion."5 The French scholar Toullier, stated that:
          The true meaning of our article 1382 is, therefore, that one who
          causes damage to another by doing something which he does not
          have the right to do or by neglecting to do what he ought to do, is
          obligated to make52 reparation for the damage that has occurred
          through his fault.
      In common law terms, French civil law "fault" exists when there
is a breach of a duty of care. Modern civil law scholars Von Mehren
and Gordley stated that "besides duties imposed by the criminal law
and by specific texts from the civil or other codes, it [French civil law
"duty of care"] includes a general duty not to act in such a way as to
injure others. '5 3
      This duty of care is owed to all the world and therefore the de-

    48. It originated in actions not involving a contract.
    49.     "To act without a right came to mean to act with dolus or culpa, that is, willfully or
negligently." A.   VON MEHREN & J. GORDLEY, supra note 33, at 567.
    50.     OURLIAC ET MALAFOSSE, L'HISTOIRE Du DROIT PRIVE. LEs OBLIGATIONS 375
(1961).
    51. The French Civil Code merges the delict and quasi-delict under the generic term
"fault." "The idea of fault includes all; it is the unjustified injury which gives rise to the
obligation to indemnify; it matters little in what manner the injury was caused." 2 PLANIOL,
TRAITE ELEMENTAIRE Du DROIT CIVIL 442, Part I, No. 827 (Louisiana State Law Institute
trans. 1959).
    52. Toullier, Le Droit Francais,in A. VON MEHREN & J. GORDLEY, supra note 33, at
576.
    53. A. VON MEHREN & J. GORDLEY, supra note 33, at 581. The well-known contempo-
rary French scholar Andr6 Tunc uses the same language: "The duty of care is owed not to
certain people or to certain circles of people. It is a general duty to the public at large." Tunc,
supra note 26, at 1091.
 1986]                    Moral Damages in Mexican Law                                     247

fendant will almost always be found at fault with respect to
         54
someone.

                            C.    "Damages" in Civil Law

      In order to understand the notion of "moral damages" in Mexi-
can law, it is important to understand the civil law concept of dam-
ages. The term "damages" is often used to refer to two distinct
concepts: "injury," which constitutes grounds for a suit, and "recov-
ery," what the court awards to the plaintiff. To avoid confusion, the
words "damage" and "damages" will be used herein to refer to the
civil law injury, loss, or violation of rights suffered by the plaintiff.
The term "recovery" will be used, instead of "damages," to denote
the civil law recovery awarded by the court to the plaintiff.
      Most civil law scholars define damage as any loss of a person's
"patrimony. ' '5 5 The word "patrimony" is a term of art which, like
many other civil law terms, does not have an equivalent term in com-
mon law. 56 There is some disagreement as to the definition of patri-
mony. Some scholars define patrimony as the totality of a person's
legal rights and assets 57 which include: (1) real and personal property
(referred to in civil law as "material" property), and (2) rights (re-
ferred to in civil law as "moral rights" or "rights of personality").
"Rights" include such things as the right to be free from emotional
distress, the right to maintain and protect one's honor and reputation,
and rights comparable to those espoused in the United States Consti-
tution Bill of Rights.
     Some civil law scholars who disagree with the view that patri-
mony consists of both material property and moral rights 58 define pat-
rimony as consisting of only the totality of a person's personal
property and real property rights ("material" property). These schol-
ars use the term "extra-patrimony" to refer to the totality of one's
moral rights.

   54.   Id.
   55. R. ROjINA VILLEGAS, DERECHO CIVIL MEXICANO 117 (3d ed. 1976); E. GUTIER-
REZ Y GONZALEZ, DERECHO DE LAS OBLIGACIONES 640 (5th ed. 1974).
    56. The term patrimony is a legal fiction which is separate and independent from its
individual components. In a sense, the notion of patrimony is similar to the common law
concept of a corporation which is a legal fiction independent from its individual shareholders.
   57.   E. GUTIERREZ Y GONZALEZ, supra note 55, at 642.
   58.   M. BORJA SORIANO, TEORIA GENERAL DE LAS OBLIGACIONES 427 (7th ed. 1971).
See also PLANIOL, supra note 51, at 471.
                     Loy. L.A. Intl & Comp. L. J.                              [Vol. 8:235

                       D. Moral Damages in Civil Law
     Most civil law scholars define moral damage in a negative sense
as any loss which does not affect material property. 59 More accu-
rately, moral damage is a loss to the "rights of personality" (droits de
la personalite), or moral rights, which involve an affront to one's
                                                          60
honor, reputation, feelings, emotions, or peace of mind.
      Civil law scholars classify moral damages into three categories.
These are: (a) injuries involving social concerns, such as one's honor,
prestige, or reputation in the community; (b) injuries involving a per-
son's feelings (similar to common law emotional distress and pain and
suffering injuries); and (c) physical injuries which have an emotional
impact on the victim (such as scars, disfiguration and the like, which
might not involve physical disability, but cause emotional distress). 6'
Material damage, unlike moral damage, occurs when there is loss or
injury to one's real or personal property ("material" property).
      Civil law scholars are in disagreement as to whether the courts
should award recovery for moral damages. Civil law scholars can be
divided into three groups on this point: (1) those who do not believe
there should be any recovery at all for moral damages; (2) those who
believe there should be recovery for moral damages only if there is
proof of material damage; and (3) those who believe that there should
be recovery for moral damages even if there is no proof of material
damage. The argument of the first group of scholars against awarding
any recovery for moral damages is similar to common law arguments
that negligent infliction of emotional distress should not be an in-
dependent cause of action due to the difficulty of measuring and prov-
ing loss, and the likelihood of abuse. The second group of scholars
would require, for example, that moral damage recovery be awarded
to a widow for the wrongful death of her deceased husband only if the
widow established that she had been financially dependent upon her
husband and that her relationship (marriage) with her husband prior
to his death was sanctioned by law. Finally, the third group would
permit recovery for the interference with a person's religious or patri-
otic feelings and beliefs. 62
   59. R. BREBBIA, EL DANO MORAL 75 (1967); M. BORJA SORIANO, supra note 58; Y.
AVILA RAMIREZ, LA REPARACION DEL DANO MORAL 30-34 (1960).
   60.   R. ROJINA VILLEGAS, supra note 55, at 128.
   61.   M. BORJA SORIANO, supra note 58, at 427.
   62.   The following discuss all three scholarly arguments:  PLANIOL, supra note 51, at 471;
R. TOULEMON & J. MOORE, LE PREJUDICE CORPOREL ET MORAL EN DROIT COMMUN. 135
(3d ed. 1968); Catala & Weir, Delicts and Torts: A Study in ParallelPartIII, 39 TUL. L.R. 663,
 19861                    Moral Damages in Mexican Law                                     249

      French courts previously adhered to the view that there should
not be any recovery for moral damages. French courts would not
allow recovery unless the loss or injury constituted material damage,
and could be measured in monetary terms. Since moral damages con-
sist of violations of moral rights, such as the right to free exercise of
religion, the French courts would not grant recovery because of the
difficulty of putting a price tag on such damage. Therefore, French
courts only permitted recovery for loss to one's "material" property.
Recently, the French courts adopted the third view and began award-
ing recovery for moral damages without requiring proof of material
damage. 63 However, the majority of civil law jurisdictions still follow
the second view and allow recovery for moral damage only if there is
proof of material damage.
      Civil law scholars are well aware of the difficulty of putting a
price tag on moral damage injuries. Under the French Civil Code,
determination of awards for moral damages is extremely subjective
because there are no specific code guidelines or limitations. French
Civil Code" section 1382 simply requires the wrongdoer "to make
reparation. '65 French scholars, acutely aware of the subjective, vague
nature of the French Civil Code's provision for awarding moral dam-
ages recovery, often facetiously quote French writer Anatole France's
statement that "justice is giving each one his due: to the wealthy, his
                                      ' 66
wealth and to the poor, his poverty."

   III.    TORT LIABILITY AND RECOVERY UNDER MEXICAN LAW

                 A. General Theories of Tort Liability
       An overview of the fundamental concepts of tort liability under
701 (1964). E. GUTIERREZ Y GONZALEZ, supra note 55, at 646-49;M. BORJA SORIANO, supra
note 58, at 428-30; A.M. VERA CID, EL DANO MORAL 37-42 (1966); and Y. AVILA RAMIREZ,
supra note 59, at 37.
    63. This change of attitude is clearly noticed by Toulemon and Moore when they say:
"La jurisprudence, a fini par admettre le prejudice sentimental sans aucun alliage de dommage
pecuniare et pour ainsi dire a l'etat pur." Judicial decisions have finally accepted the idea of
sentimental (non-pecuniary) damage without any relationship to a finding of material damage,
in a pure state, so to speak (translation by the author). R. TOULEMON & J. MOORE, supra note
62, at 138.
    64. See supra text accompanying note 15.
    65. In the words of Touleman and Moore, "le judge lorsqu'il applique Particle 1382 a
pourfonction, non de punir lafaute, mais d'ordonnerla reparationdu dommage. Le Prejudice
Corporelet Moral," R. TOULEMAN & J. MOORE, supra note 62, at 115. The judge in applying
Section 1382 has the task, not of punishing the negligent act, but of decreeing the reparation
of the damage that has been caused (translation by the author).
    66. R. TOULEMON & J. MOORE, supra note 62, at 119.
250                    Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

Mexican law will assist in the comparison of Mexican moral damages
with the common law notion of punitive damages. The fundamental
basis of tort liability in Mexican law, as in French law, is the occur-
rence of an unlawful or illicit act causing injury which necessitates
reparation. This is known as the "subjective" theory of tort liability
which is based on fault (culpa). Section 1910 of the Mexican Civil
Code sets forth the obligation to repair and reads as follows: "[h]e
who acting illegally or against good customs, causes damage to an-
other, is obliged to repair it unless he proves that the damage oc-
curred in consequence of the fault or inexcusable negligence of the
          67
victim."
      This section, like section 1382 of the French Civil Code, bases
civil tort liability squarely on fault. 68 The term "illegally" in section
 1910 refers to illegal conduct, whether intentional (dolosa) or negli-
gent (culposa). Although today's civil law term delict refers to inten-
tional conduct and quasi-delict refers to negligent conduct, under
section 1910 of the Mexican Civil Code (and section 1382 of the
French Civil Code) there is no distinction between intentional and
negligent conduct. 69 For example, a defendant driving a car commits
the illicit act of hitting the plaintiff in the crosswalk as the plaintiff
crosses the street. The defendant is at "fault" regardless of whether
the defendant intentionally hit the plaintiff or negligently failed to no-
tice the plaintiff crossing the street.
      In 1928, Mexican Civil Code section 1913 introduced for the first
time an additional theory of tort liability which is still in effect in
essentially its original form. 70 This additional form of liability focuses
exclusively on whether there has been injury due to the defendant's
use of a dangerous instrumentality. This theory, called "objective" or
 "created risk" liability, abandons the Roman law tradition of looking
to "fault" as the source of civil tort liability. Under section 1913,
objective liability is quite similar to the common law notion of strict
liability, and in particular, strict liability for ultrahazardous activity. 7'

   67.    Mexican Civil Code § 1910 (M. Gordon trans. 1980).
   68.    See supra text accompanying notes 54-55.
   69. With respect to the distinction between delict and quasi-delict, Planiol says:
    On closer analysis, there appears to be no reason for maintaining two distinct catego-
      ries of the sources of obligations, both are illicit acts, both obligate their authors in
    the same manner to repair the damage they cause. It would seem then that the
    distinction should disappear, it not being founded on any practical difference.
PLANIOL, supra note 51, at 443.
   70. Mexican Civil Code § 1913 (M. Gordon trans. 1980).
   71.    Id.
 1986]                    Moral Damages in Mexican Law

Section 1913 of the Mexican Civil Code provides as follows:
    When a person makes use of mechanisms, instruments, apparatus
    or substances which are dangerous in themselves, by reason of ve-
    locity which they develop, their explosive or inflammable nature,
    the strength of the electric current they conduct, or for other
    analogous causes, he is liable for the damage he causes although he
    does not act illegally, unless he proves that such damage was pro-
                                                                 72
    duced by the fault or inexcusable negligence of the victim.
Under section 1913, the defendant who hit the plaintiff crossing the
street will be held liable (unless the plaintiff was contributorily negli-
gent), regardless of whether there was civil fault, because the defend-
ant caused injury to the plaintiff by using a dangerous
                        73
instrumentality, a car.
     Whether or not a plaintiff can recover for moral damage depends
upon whether or not the plaintiff must prove fault. Proof of fault is
required under section 1910, but is not required if the cause of action
is based on section 1913. Proof of fault is an essential prerequisite to
                                      74
obtaining moral damages recovery.

                     B.    Mexican Law Civil Tort Recovery
     Section 1910 of the Mexican Civil Code provides the fundamen-
tal basis for Mexican tort liability and recovery. 75 Most Mexican
scholars follow the civil law majority view that a plaintiff can recover
for "material" and "moral" damage. 76 This view is based on the fact
that section 1916 of the Mexican Civil Code 77 specifically refers to
moral damages.
     The general rule for Mexican civil tort recovery is found in sec-
tion 1915, subdivision (1) of the Mexican Civil Code, which provides

    72. Id.
    73. Id.
    74. Id. § 1910.
    75. "He who acting illegally or against good customs causes damage to another, is
obliged to repair it, unless he proves that the damage occurred in consequence of the fault or
inexcusable negligence of the victim." Mexican Civil Code § 1910 (M. Gordon trans. 1980).
See also M. BORJA SORIANO, supra note 58, at 409.
    76. M. BoRJA SORIANO, supra note 58, at 409, 428-30.
    77. The statutory basis for the award of moral damages in Mexico is § 1916:
           Independently of the damages and losses, the judge may grant in favor of the
     victim of an illegal act, or of his family if the victim dies, an equitable indemnity as a
     moral reparation to be paid by the person responsible for the act. Such indemnity
     cannot exceed one-third (1/3) of the amount of civil liability. The provisions of this
     article shall not be applied to the State in the case mentioned in Article 1928.
Mexican Civil Code § 1916 (M. Gordon trans. 1980).
                        Loy. L.A. Int'l & Comp. L. J                             [Vol. 8:235

as follows: "The repair of the damage shall consist, at the election of
the injured party, in the restoration of the status previously existing, 78
when this is possible, or in the payment of damages and losses."
     Section 1915, as originally enacted, was modeled after the French
Cour de Cassation's 79 interpretation of French Civil Code section
1382.80 According to the Cour de Cassation, section 1382 provided
recovery for "the damage, the whole damage and nothing but the
damage." 8' 1 Originally, section 1915 of the Mexican Civil Code also
provided for complete reparation of loss to the victim, regardless of
                                    82
the nature of damage suffered.
                                                                            83
      Section 1915 originally provided for two methods of reparation.
These were: (1) reparation by restitution, that is, restoration of the
item lost (exact reparation), and (2) reparation by providing compen-
sation equivalent in value to that which was lost. 84 Since the purpose
of section 1915 was to return the victim to the status quo ante, exact
reparation was the preferred method of reparation. Normally, the
plaintiff would only receive monetary compensation if it was impossi-
                                     85
ble to provide exact reparation.
      Section 1915, as amended in 1940, now contains two additional
subdivisions. Today section 1915, subdivisions (2) and (3), provide:
     (2) When the damage is caused to persons and produces death,
     total permanent, partial permanent, total temporary or partial tem-
     porary incapacity, the amount of the indemnity shall be deter-
     mined according to the provisions established by the Federal Labor
     Law. To calculate the appropriate indemnity one shall take as the
     base four times the minimum daily salary, which is the highest in
     force in the region and shall be multiplied by the number of days
     indicated in the Federal Labor Laws for each of the incapacities
     mentioned.
           (3) Credits for indemnity when the victim is a wage-earner are

    78.   Id. § 1915.
    79.   R. ROJINA     VILLEGAS,   supra note 55, at 130.
    80.   See supra note 36.
    81.   R. TOULEMON & J. MOORE, supra note 62, at 116.
    82. The original version of Section 1915 read as follows: "The reparation of damage shall
consist in the restoration to the status existing prior to the damage and when this is not possi-
ble, in the payment of damages and losses." R. ROJINA VILLEGAS, supra note 55, at 130.
    83.   Id.
     84. Id.
     85. A literal reading of this section as originally enacted allowed the Mexican courts to
follow the lead of the French Cour de cassation and to order the repair of "the damage, the
whole damage and nothing but the damage" without any distinction as to the type of injury
suffered by the victim. R.     ROJINA VILLEGAS,    supra note 55, at 130 n.17.
1986]                   Moral Damages in Mexican Law

      not transferable and shall be paid preferentially in a single pay-
      ment, except when otherwise agreed amongst the parties. The
      foregoing provisions shall be observed in the case of Article 2647 of
                86
      this Code.
      Subdivision (2), in particular, changed the previous theory of
complete reparation. Today section 1915 provides for complete repa-
ration only when the illicit act causes damage to "things. ' s7 When
the injury is to persons, the amount of monetary recovery is limited to
the provisions established by the Federal Labor Law.8 8 An example
of the Federal Labor Law reads as follows:
     In case of death of the worker, the indemnification to the persons
     to which the preceding article refers shall be an amount equal to
     the sum of seven hundred and thirty-five days of wages, without
     deducting the indemnification received by the worker during the
     period in8 9which he was subject to the rules for temporary
      disability.
This is why personal injury awards in the United States are often
much higher than Mexican personal injury awards.
     Other factors contribute to the significant difference between
United States and Mexican personal injury awards. First, the absence
of a jury in the Mexican judicial system means that the judge alone
will hear and decide all aspects of the case. Second, most countries
which adhere to civil law principles, including Mexico, do not have
compulsory insurance, such as mandatory car insurance. Therefore,
there is no "deep pocket" from which to recover. In most cases, the
defendant will bear the entire financial burden of the award. Third,
punitive damages for tort liability are not permitted. Only a criminal
law judge can award punitive damages in Mexico. 90

                         C. Mexican Moral Damages
     Most Mexican scholars agree with the civil law view that there
are two types of damage: "material" damage, also referred to as "pat-
rimonial" damage, and "moral" damage, also referred to as "extra-
patrimonial" damage. However, one of Mexico's best known legal
    86. Mexican Civil Code § 1915 (M. Gordon trans. 1980).
    87. See supra text accompanying note 78.
    88. Mexican Labor Law art. 502 (CCH) 227 (1974), quoted in Kozolchyk, Mexican Law
of Damagesfor Automobile Accidents: Damages or Restitution?, 1 ARIZ. J. INT'L & COMP. L.
189, 203 (1982).
   89.   Id.
   90. See infra text accompanying note 99.
                      Loy. L.A. Int'l & Comp. L. J                             [Vol. 8:235

scholars, E. Gutierrez y Gonzalez, strongly believes that moral rights
should be included as part of one's patrimony, rather than categorized
as extra-patrimony. 9 - He therefore believes the Court should award
recovery for moral damages as well as for material damages under
                          92
certain circumstances.
      Mexican Civil Code section 1916 specifically provides for recov-
ery for moral damages:
     Independently of the damages and losses, the judge may grant in
     favor of the victim of an illegal act, or of his family if the victim
     dies, an equitable indemnity as a moral reparation to be paid by the
     person responsible for the act. Such indemnity cannot exceed one-
     third (1/3) of the amount of civil liability. The provisions of this
     article shall not be applied to the State in the case mentioned in
                   93
     Article 1928.
Section 1916 raises a number of important issues, such as: (1) whether
section 1916 requires a finding of material damage before moral dam-
ages recovery will be awarded; (2) whether moral damages recovery is
available only upon proof of fault committed by the defendant; and
(3) who is liable for moral damages recovery? These will be discussed
separately.

 1. Whether section 1916 requires proof of material damage before
          moral damages recovery will be awarded
     Most Mexican scholars agree that section 1916 is literally consis-
tent with the civil law view that recovery for moral damage is recover-
able only if there is proof of material damage. 94 However, most
Mexican scholars also agree that section 1916 should be amended to
allow moral damages recovery regardless of whether there is proof of
                   95
material damage.
     The Mexican courts seem to share this view. The landmark case
ConstructoraCross, S.A. 96 dealt with the issue of whether the father of

    91. E. GUTIERREZ Y GONZALEZ, supra note 57, at 642.
    92. Id.
    93. Mexican Civil Code § 1916 (M. Gordon trans. 1980).
    94. M. BORIA SORIANO, supra note 58, at 428-30; E. GUTIERREZ Y GONZALEZ, supra
note 55, at 651.
    95. M. BORIA SORIANO, supra note 58, at 428-30. "It is only objectionable in our view,
that the amount of the moral damage is limited to one-third of the material damage since this
appears to state that there is necessarily a relationship between patrimonial and moral damage,
which is completely inaccurate." R. BREBBIA, supra note 59, at 142 (translation by the
author).
   96.     ConstructoraCross, S.A., 15 S/F 6a 4:290 (1958). Decisions of the Mexican Supreme
19861                    Moral Damages in Mexican Law

a minor child killed by a truck driven by an employee of the defend-
ant corporation was entitled to recover for the death of his son even
though there was no proof of material damage. The defendant
claimed that since the minor was not employed and the father had not
been financially dependent upon him, there was no material damage
and, therefore, the plaintiff could not recover anything.
      The Supreme Court of Mexico said that the theory that a father
cannot receive reparation for the death of his minor child because the
child did not contribute to the economic welfare of the family,
     is devoid of any legal justification and is repugnant to the most
     basic principles of justice. The greatest asset a father can have is
     the life of a child and its death results in an obvious damage, that
     goes beyond- because it has no limit-the notion of damage and
     loss employed by the law to refer to the responsibility of one of the
     parties for the breach of an agreed obligation. 97
The Court suggested that there should be recovery regardless of
whether the parents suffered material damage of financial loss. How-
ever, the Court did not go so far as to conclude that proof of material
damage is not required for moral damage recovery. The Court con-
strued the parents' loss of their son as material damage rather than as
moral damage. Nevertheless, the parents were still unable to recover
for their son's death as is explained in the next section. 98

 2.    Whether moral damages recovery is available only upon proof
          of "illicit" conduct committed by the defendant
     According to a literal reading of section 1916, the defendant's
conduct must be illegal. Section 1916 states that "the judge may
grant in favor of the victim of an illegal act. . . an equitable indem-
nity as moral reparation." 99
     An act is illicit or illegal if there is proof of fault. Fault exists
when the wrongdoer has acted without right. The wrongdoer has ac-
Court are reported in the Semanario Judicialde la Federacion, created in 1870 and the only
authorized official publication of these reports. Decisions of the Federal Supreme Court are
the only court decisions that are regularly published. See Butte, supra note 18, at 807 n.5.
Professor Butte has created his own method of citing Mexican cases. This same method will
be followed throughout this article: volume number, followed by epoch number, followed by
part number, followed by page number. For example: 15 S/F 6a 4:290 means that the case is
in Volume 15 of the Sixth Epoch of the Semanario Judicial, on page 290 of the Fourth Part of
the volume. Id.
    97. ConstructoraCross, S.A., 15 S/F 6a 4:290, 296 (translation by the author).
    98. See infra text accompanying note 101.
    99. Mexican Civil Code § 1916 (M. Gordon trans. 1980) (emphasis added).
                      Loy. L.A. Int'l & Comp. L. J                         [Vol. 8:235

ted without right when his/her conduct is in violation of law or
against good customs. In other words, that conduct is immoral or
contra bonos mores.
     In ConstructoraCross, S.A. ,100 the Supreme Court of Mexico dis-
agreed with the trial and appellate courts' decision allowing recovery
for moral damages. The Court declared that moral damages recovery
can only be recovered from the person responsible for the "illicit"
act. 101
     In other words, even if the Court in Constructora Cross, S.A. con-
cluded that there was proof of material damage, the plaintiff could not
recover for moral damages because the alleged cause of action was
premised on Mexican Civil Code section 1913.102 This code section
overlooks civil fault and presumes fault by imposing strict liability.
Conversely, section 1910 requires proof of fault. 10 3 If the plaintiff had
asserted a cause of action based on section 1910, he might have been
awarded a moral damage recovery.
     Alternatively, a plaintiff could base his or her action on section
 1913, which provides for "objective liability" for injury caused by use
of a dangerous instrumentality. However, the Court will not award
recovery for moral damages since the defendant's injurious conduct,
consisting of the use of a dangerous instrumentality which under
Mexican law includes the act of driving a car or flying a plane, nor-
mally is lawful.
      Section 1913 relieves the plaintiff of the burden of proving fault
because of the inherent danger of certain activities which the defend-
ant undertakes knowing full well that he is risking the safety of
others. In Constructora Cross, S.A., the Supreme Court of Mexico
held:
     [S]ince in the present case there was no finding of any fault whatso-
     ever on the part of the defendant corporation, nor was the accident
     caused by mechanic [sic] defects of the truck, nor due to any other
     causes attributable to the said corporation, the order [of the lower
     court] directing the defendant corporation to pay moral damages is
     in violation of sections 1910 and 1916 of the Civil Code and, there-
     fore, the defendant is entitled to the constitutional protection it

   100.    ConstructoraCross, S.A., 15 S/F 6a 4:290, 299-300.
   101.    Id.
   102.    Mexican Civil Code § 1913 (M. Gordon trans. 1980). See supra text accompanying
note 72.
   103.    Mexican Civil Code § 1910 (M. Gordon trans. 1980). See supra note 75.
1986]                     Moral Damages in Mexican Law                                     257

      requests. 10 4
      Mexican scholars have criticized the Court for this conclusion.
These critics claim there are no grounds which justify requiring proof
of illegal conduct in order to recover for moral damages while al-
lowing recovery for material damages regardless of whether or not the
defendant's conduct is legal or illegal. 105
     Justice Garcia Rojas articulates this criticism in his dissent in
ConstructoraCross, S.A. 10 6 He stated that the term "illegal conduct,"
as used in the Mexican Civil Code, was not intended to limit recovery
to instances where there is proof of fault. 10 7 According to Justice
Rojas, although the Mexican Civil Code occasionally refers to "negli-
gent" and "intentional" conduct as "illegal," this does not necessarily
mean that there must be proof of fault in order for there to be "illegal
conduct."' 1 8 Justice Rojas defines "illegal conduct" as any "conduct
done without right that causes damages or loss in someone's patri-
mony, whether intentional, whether negligent, or without proof of
either."' 0 9 Therefore, there is no need to determine whether the de-
fendant's conduct is intentional or negligent. All that is required is a
finding of damage. "[H]e who causes injury is acting illegally; it is a
fundamental principle of the law not to injure others." 110
     For example, in an action for wrongful death caused by an auto-
mobile accident, the plaintiff cannot recover for moral damages be-
cause under section 1913 driving an automobile is a dangerous

   104. Constructora Cross, S.A., 15 S/F 6a 4:290, 300:
     Como en el caso concreto no se ha atribruido culpa de ningun genero a la sociedad
     demandada, ni el atropellamiento se produjo por defectos del camion materialista o
     por othas causas imputables a la propia sociedad, la condena a pagar el dano moral
     que le impuso la autoridad responsable viola los ariculos 1910 y 1916 del Codigo
     Civil por lo que por este concepto debe otorgarsele la protecion constitucional que
     solicita.
Id. (translation in the text by the author).
   105. E. GUTIERREZ Y GONZALEZ, supra note 55, at 651.
   106. Constructora Cross, S.A., 15 S/F 6a 4:290, 303 (Garcia Rojas, J., dissenting).
   107. Id.
   108. Id.
   109. Id. at 303. "Es acto ilicito todo dano que se causa sin derecho a un patrimonio, haya
culpa, haya doo, o no los haya." Id. (translation in text by the author).
   110. Id. at 305. "[Eli que produce un dano obra ilicitamente, es principio basico del der-
echo: no danar a otro." Id. (translation in text by the author). This approach is similar to the
one followed by the French courts.
     [D]amage must be assessed in its entirety, independently of the fault committed; it is
     only for the criminal judge to inflict a punishment. The judge in a civil proceeding
     must award the total reparation of the damage caused by the fault, even if this fault is
     minimal.
R. TOULEMON & J. MOORE, supra note 62, at 131.
258                    Loy. L.A. Intl & Comp. L. J.                            [Vol. 8:235

activity and fault is presumed. However, if the death is caused by a
horse and buggy, there will be recovery for moral damages since such
activity is not considered a dangerous activity. In the latter instance,
recovery will be premised on section 1920 which does not presume
fault. 1
      In spite of Justice Rojas' strong dissenting opinion and scholars'
criticism, the Supreme Court of Mexico continues to deny recovery
for moral damages in actions based on section 1913 objective liability,
as seen in the cases that follow.
      In Pensionarios Unidos del Suroeste de Jalisco, S.A. de C.V ,112
the plaintiff, spouse of the deceased victim, requested recovery for
both material and moral damages from defendant corporation for the
death of her husband. Plaintiff's husband was killed when an em-
ployee of the defendant corporation, while driving a company truck,
collided with the decedent's car. Plaintiff brought suit under section
 1834 of the Civil Code of the State of Jalisco. At the time of suit,
section 1834 was identical to section 1913 of the Mexican Civil
        13
Code.
      The Supreme Court reversed the lower court's award to the
plaintiff of recovery for moral damages. The Supreme Court's hold-
ing was based on a literal reading of section 1913 (section 1834), the
objective liability provision, and section 1916 (section 1837), the
moral damages provision. The Court reiterated "that the cause of
action founded on objective liability is independent from a finding of
legality or illegality of the facts that give rise to it."14 Therefore, repa-
ration for moral damages will only lie where plaintiff squarely bases
his or her action on section 1910 and there is a finding of fault on the
part of the defendant." 5
      Although the plaintiff failed to expressly assert a cause of action
founded on section 1910, and based her action entirely on section
1913, the Court's decision was suspect since the plaintiff provided evi-
dence of the defendant's negligence." 6 In other words, the Court did
not make an independent finding of negligence on the part of the
driver (subjective liability under section 1910), although the plaintiff
introduced such evidence. The Court denied recovery for moral dam-

  111.   ConstructoraCross, S.A., 15 S/F 6a 4:290, 303 (Garcia Rojas, J., dissenting).
  112.   PensionariosUnidos del Suroeste de Jalisco, S.A. de C. V., 41 S/F 7a 6:83 (1972).
  113.   Id.at 99.
  114.   Id.at 106.
  115.   Id. at 105.
  116.   Id. at 106.
 1986]                     Moral Damages in Mexican Law                                     259

ages basing its decision solely upon section 1913 (objective liability),
which does not require proof of fault. 117
     In PensionariosUnidos del Suroeste de Jalisco S.A. de C.V , 18 the
plaintiff provided evidence that defendant's truck was loaded with
lumber protruding fifty centimeters from each side of the truck bed,
thus preventing vehicles from passing it on the extremely narrow
road. The protruding lumber violated section 105 of the Jalisco State
Traffic Ordinance. In addition, there was evidence that the truck had
stopped where the road curved, which also constituted a State Traffic
Ordinance violation."t 9 Justice Jose Abitia Arazapalo stated in his
dissent that the cause of action should be treated as based on both the
objective liability theory of section 1834120 of the Civil Code of Jalisco
and on Jalisco Civil Code section 1831,121 which provides for liability
based on fault and permits moral damages recovery. 122 He argued
there is no inconsistency or contradiction in asserting a cause of ac-
tion based on the objective liability of section 1834 and simultane-
ously asserting a section 1831 cause of action based on fault. "The
coexistence of the moral damage that arises from an illicit act and
objective liability, which, as is well known, is independent from a find-
ing of fault on the part of the wrongdoer.                   . .   do not necessarily con-
tradict each other."' 123
       The majority of the Court, however, did not elaborate on this
point, nor did it mention the possibility of recovery based on fault
(violation of statute).' 24 The Court might have decided in the plain-
tiff's favor if the plaintiff had founded her cause of action on section
1910 and proved fault based on the Jalisco Traffic Ordinance
violations. 125
   117.   Id.
   118. Id.
   119. Id. at 94.
   120. Id. at 97.
   121. Id.
   122. Id. at 106 (Jose Abitia Arazapalo, J., dissenting).
   123. Id.
   124. This type of negligence is similar to the common law concept of negligence per se.
Prosser describes it as follows:
     When a statute provides that under certain circumstances particular acts shall or
     shall not be done, it may be interpreted as fixing a standard for all members of the
     community, from which it is negligence to deviate. Within the limits of municipal
     authority, the same may be true of ordinances.
W. PROSSER, LAW OF TORTS 190 (4th ed. 1974).
   125.   In Wings, S.A. y Jesus Garcia Moreno, 75 S/F 7a 7:16 (1983), a case reported in the
latest Semanario Judicialde la Federacion,supra note 96, the Mexican Supreme Court, follow-
ing the reasoning of the dissent in PensionariosUnidos del Suroeste de Jalisco, S.A. de C. V., 41
260                   Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

     In its decision, the Court did not mention that the truck driver,
either in his individual or employee capacity, should be held liable
based on "fault" and should compensate the plaintiff for moral dam-
ages. This may be due to the fact that the truck driver committed a
                                                                    12 6
hit and run offense and could not be found at the time of the trial.

                          3. Liability for moral damages
    Mexican Civil Code section 1916127 states that the judge may
grant moral damages "recovery to the victim of an illegal act and
                                                                        128
such reparation shall be paid by the person responsiblefor the act.'
Therefore, only when there is a finding of illegal conduct or fault will
the judge consider awarding moral damages recovery. A majority of
civil tort cases involve actions based on section 1913 objective liability
in which the Court has consistently denied moral damages recovery
because objective liability does not require proof of illegal conduct.
      The Court articulates its narrow reading of section 1916 in Con-
structora Cross, S.A .,129 Pensionarios Unidos del Suroeste de Jalisco,
S.A. de C. V 130 and in Octavio Gonzalez.'
      In Octavio Gonzalez, one of the defendants violated a traffic ordi-
nance and hit the co-defendant's station wagon, which in turn injured

S/F 7a 6:83, stated that liability under Sections 1910 and 1913 of the Mexican Civil Code are
not mutually exclusive. In Wings, S.A. y Jesus Garcia Moreno the court in deciding an action
for wrongful death and personal injuries against the defendant corporation and its employee
driver, stated:
      Subjective and objective liability, provided by Section 1910 and Section 1913 of the
      Civil Code for the Federal District, are not mutually exclusive and can co-exist since
      a person who makes use of mechanisms, instruments, apparatus or substances which
      are dangerous in themselves, by reason of their explosive or inflammable nature, even
      if not acting unlawfully, can in addition, perform illicit acts that can cause damage to
      another person. Therefore, the plaintiff in a suit for civil tort liability can validly base
      his cause of action on both these sections, so that the objection that they contradict
      each other will not hold.
Wings, S.A. y Jesus GarciaMoreno, at 55-56 (translation by the author). Here, plaintiff had
based her action on both these sections and the defendant driver had been sentenced by the
criminal judge. However, recovery for moral damages was not at issue.
    126. PensionariosUnidos del Suroeste de Jalisco S.A., at 87.
    127. Mexican Civil Code § 1916 (M. Gordon trans. 1980) (emphasis added).
    128. Independently of the damages and losses, the judge may grant in favor of the
      victim of an illegal act, or of his family if the victim dies, an equitable indemnity as a
      moral reparation to be paid by the person responsible for the act. Such indemnity
      cannot exceed one-third of the amount of the civil liability. The provisions of this
      article shall not be applied to the State in the case mentioned in article 1928.
Id.
    129. See text accompanying supra note 96-98.
    130. See text accompanying supra note 112-15.
    131. Octavio Gonzalez, 15 S/F 6a 20:197 (1958).
1986]                     Moral Damages in Mexican Law

the plaintiff. Both defendants were found jointly liable under the ob-
jective liability section 1810 of the Code of Nuevo Leon, 132 which is
identical to section 1913 of the Mexican Civil Code. 133 The driver
who violated the traffic ordinance and hit the co-defendant's station
wagon, was ordered to pay moral damages recovery to the plaintiff.
The Court concluded that the co-defendant (whose station wagon was
hit) was not at fault because he did not create any risk of harm to the
plaintiff. The Court stated:
     Section 1810 of the Local Civil Code, identical to section 1913 of
     the Code of the Federal District, provides for objective liability for
     the use of mechanisms, instruments, apparatus or substances po-
     tentially dangerous, independently of whether damage is caused il-
     legally, whether intentionally or negligently; that is, with respect to
     the person who suffers the injury, the responsible parties are those
     who cause it, for the only reason of having created the risk, and
     therefore, are jointly liable for the damage caused, pursuant to Sec-
     tion 1814. The determination of which of the responsible actors
     was the direct or immediate cause of the happening of the risk is
     totally irrelevant to the victim and should be a matter for the
     wrongdoers to deal between themselves.' 34
       In Quirina de Aquilar Vda de Nino135 the Supreme Court once
again denied moral damages recovery. There the plaintiff sued a bus
company (a corporation) and its insurer. The company owned the
bus in which plaintiff's husband had been a passenger and it had em-
ployed the driver of the bus. While maneuvering the bus down a
curvy road, the driver crashed into the center divider. Both the driver
and the plaintiff's husband died as a result. 36
      The defendant corporation and its insurance company were both
found liable only for material damages because the suit was based on
section 1913. It is unclear from the opinion whether if the bus driver
had lived, he would have been liable for moral damages, since evi-
dence suggested the driver was at fault and lacked adequate train-
ing. 137 The Court stated:
      Moral damages may only be recovered from the person who is lia-
      ble for the illicit act as provided by section 1910 of the same code, a

  132.   Id. at 200.
  133.   Id.
  134.   Id. (translation by the author).
  135.   Quirina de Aguilar Vda de Nino, 2 S/F 6a 4:158 (1957).
  136.   Id. at 159-60.
  137. Id. at 164.
                      Loy. L.A. Int'l & Comp. L. J.                              [Vol. 8:235

      liability that is different from the object one prescribed by section
      1913. In the case at bar, only the objective liability of the defendant
      was proved by the use of a potentially dangerous mechanism, but
      in the performance of a lawful activity as is the carriage of persons.
      In order to subject the defendant to the payment of moral damages
      it is indispensable to prove that the wrongful death of Jose Nino
      Ruiz was due to an intentional act of the defendant company or to
      a negligent act of the same, as for example, that the accident oc-
                                                                  38
      curred due to the lack of maintenance of the vehicle.'
The question remains whether the Court would have affirmed the
award of moral damages if the plaintiff had proved defendant at fault
for selecting an incompetent driver. There is no indication that such
an attempt was made in the case.13 9
     In his strong dissenting opinion in Quirina de Aguilar Vda de
Nino,140 Justice Garcia Rojas points out that the Court should not
                                                                       41
focus on whether there was an illicit act as defined by section 1910.1
Section 1910 broadly defines an illicit act as not only an act which is
against the law or good morals, but also includes any act which causes
physical injury. In addition, he stated that there is sufficient showing
of lack of training on the part of the driver and of the driver's fault.
Justice Rojas, therefore, agrees with the lower court's order directing
the defendant corporation to pay the plaintiff $1,600.00 (Mexican pe-
                          1 42
sos) as moral reparation.

         D. Moral Damages Versus Punitive Damages Recovery
     As a result of the prerequisite proof of fault or illegal conduct for
moral damages recovery, some scholars believe that moral damages
recovery is the equivalent of punitive damages in American law. 14   3
                                                                        In

    138. Id. (translation by the author).
    139. The plaintiff could have also pursued an action under Section 1924 which creates a
rebuttable presumption of fault or negligence in the selection or supervision of one's employees
who, while acting within the scope of their employment, injure others. Section 1924 provides a
theory of recovery which is separate and distinct from a 1913 cause of action which involves
use of a dangerous instrumentality. Section 1924 provides: "Managers and owners of mercan-
tile establishments are liable for the damages caused by their workmen or servants in the exer-
cise of their duties. This liability ceases if they show that in the commission of the damage no
fault or negligence can be imputed to them." Mexican Civil Code § 1924 (M. Gordon trans.
1980). See Butte, supra note 18, at 813.
    140. Quiriniade Aguilar Vda de Nino, 2 S/F 6a 4:158 (1957).
    141. Id. at 165-66 (Garcia Rojas, J., dissenting).
    142. Id. See also Constructora Cross, S.A., 15 S/F 6a 4:290, 303-05 (Garcia Rojas, J.,
dissenting).
    143. "Mexico's Supreme Court has drawn a sharp line between the entitlement to morals,
 1986]                     Moral Damages in Mexican Law                                      263

actuality, moral damages recovery has nothing to do with the com-
mon law notion of punitive damages. Proof of fault (willful or negli-
gent conduct) is required in order to establish that the act was illicit,
not for the purpose of establishing motivation or malice. Moral dam-
ages recovery is not awarded for the purpose of punishing the wrong-
doer, although it does ultimately result in decreasing the wrongdoer's
assets. The purpose of moral damages recovery in civil law tort ac-
tions is to compensate the victim. 144
      Unlike the distinction in tort liability between common law puni-
tive damages and civil law moral damages, in Mexican criminal law,
moral damage awards are much like the common law concept of pu-
nitive damages. Therefore under Mexican law, the court's approach
to resolving criminal disputes differs from its approach to resolving
civil tort disputes. In civil tort proceedings the court focuses on com-
pensating the victim. Whereas, in criminal proceedings, the court's
primary function is to punish the wrongdoer. This fundamental dis-
tinction between criminal and civil proceedings is derived from
French law. 145
     It is only for the criminal judge to inflict a punishment. The judge
     in a civil proceeding must award total reparation of the damage
     caused by the illegal conduct [or fault] even if this fault is mini-
      mal .... The function of the criminal judge is to order sanctions;
      that of the civil judge is to make reparation. . . . In order to in-
      sure complete reparation, the [civil] judge must not take into con-
      sideration those 46circumstances that may increase or decrease the
      degree of fault. 1
The Mexican scholar Rafael Rojina Villegas points out:
    In the criminal proceeding, moral damages will be awarded even
    without proof of material damage, since the former is not deter-
   mined in function of the latter as unjustly required by section 1916
   of the civil code. The amount of both moral and material damages

or punitive damages in actions based upon 'illicit' acts, i.e. willful or negligent torts and those
based upon the strict liability of dangerous mechanisms or instrumentalities." Kozolchyk,
supra note 88, at 206. Moral damages understood as punitive damages is also found in S.
BAYITCH & J. SIQUEIROS, CONFLICT OF LAWS: MEXICO AND THE UNITED STATES                          149
(1968).
   144. M. BORJA SORIANO, supra note 58, at 431.
   145. Although Roman private law appears to have included a notion of punitive damages
in its concept of penal action, the drafters of the French Civil Code did not follow this ap-
proach. They left it up to the criminal judge to impose any sanction as punishment on the
wrongdoer as opposed to compensation for the victim.
  146. R. TOULEMON & J. MOORE, supra note 62, at 131, 142.
264                       Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

        is left to the judge's discretion and the financial ability of the
                     147
        defendant."
     The erroneous equating of moral damage recovery with punitive
damages in tort actions may be a cause of a confusion with Mexico's
Penal Code. The Penal Code specifically refers to moral damages
when discussing punishment to the wrongdoer.1 48 However, moral
damages in the Civil Code are not punitive. They are limited to dam-
ages awarded as satisfaction to the victim.149

 IV.         RELATIONSHIP BETWEEN MORAL DAMAGES RECOVERY IN
                   MEXICO AND COMMON LAW DAMAGES
                                 FOR EMOTIONAL DISTRESS

A.          Comparison Between Common Law Emotional Distress Recovery
                 and Civil Law "Affective Patrimony" Recovery
     The concept of moral damages encompasses a broad range of in-
juries. It includes such injuries as harm to one's honor or reputation
or loss of one's personal freedom, which would normally constitute
common law defamation and false imprisonment, respectively.
     The term "moral damages" also includes loss of, or interference
with, a variety of inherent rights; for example, the right to good
health, the right to the pursuit of happiness, and the right to be free
from interference with one's personal feelings and intellect.15 0 Inter-
ference with these interests involves injuries similar to those which
form the basis of common law emotional distress actions. This type
of injury, detrimentally affecting the plaintiffs feelings, is referred to
in civil law as "affective patrimony" damage. Moral damages recov-
ery is most frequently awarded for "affective patrimony" damage.
Mexican Civil Code section 1916 specifically provides for such

     147.    R.   ROJINA VILLEGAS,   supra note 55, at 129. See also R.   BREBBIA,   supra note 59, at
142. "The amount of reparation shall be determined by the judges in light of the damage that
must be repaired according to the evidence presented at trial." Codigo Penal ParaEl Distrito
Federal (Penal Code for the Federal District) § 31 (amended 1984).
  148. Section 30 of the Mexican Penal Code for the Federal District provides in part:
    The reparation of injury includes:
              1. The restitution of the thing obtained because of the offense, and if this is not
      possible, then the value of the same, and
           2. Repair of the material and moral damages caused by the injury.
   149. "Satisfaction is distinct from punishment since it concerns the injured person, not the
wrongdoer. While punishment inflicts a wound, satisfaction is intended to heal a wound."
Stroll, Penal Purposes in the Law of Torts, 18 AM. J. COMP. L. 3, 6 (1970).
   150. M. BOIRA SORIANO, supra note 58, at 427-28.
1986]                     Moral Damages in Mexican Law

recovery. 15'
     Although there is no equivalent common law term for "affective
patrimony" damage, the common law concept of infliction of emo-
tional distress comes the closest to the Mexican law notion of "affec-
tive patrimony."1 52 As previously mentioned, there are no distinct
"torts" in civil law. There is only the Law of Civil Tort. 153 There-
fore, it is unnecessary in Mexican civil law to establish whether the
conduct causing "affective patrimony" damage was negligent or in-
tentional. However, section 1916154 implies that there must be mate-
rial damage in order to recover for affective patrimony damage, just
as in many common law jurisdictions the plaintiff must establish
physical injury before he can recover for infliction of emotional dis-
tress. Section 1916 states that recovery for moral damage (which in-
cludes affective patrimony damage) cannot exceed one-third (1/3) of
the material damage. 155 Thus, absence of material damage precludes
moral damage recovery.
       It is unclear why this limitation of moral damages recovery in
section 1916 was enacted. Mexican legislators may have intended to
adopt the view of numerous scholars that moral damages recovery
                                                                     156
should not be awarded unless there is proof of material damage.
Also, they may have wanted to prevent flagrant abuse and unfair sub-
jectivity in awarding moral damages recovery. 57 Alternatively, these
legislators simply may have wanted to provide the judge with defini-
tive, somewhat objective guidelines of determining the amount of
moral damages recovery to be awarded.
       There seems to be no indication in the treatises as to the exact
motivation for the wording of section 1916. However, both Mexican
scholars Rafael Rojina Villegas1 58 and Ernesto Gutierrez y Gonza-
lez 1 59 believe that the Mexican legislature intended to adopt what is
called a "mixed theory" award for moral damages recovery which

  151. See supra note 77.
  152. "Moral damages," which include the things we would call pain and suffering,
    mental anguish, loss of consortium and so on may be given to the victim, or to his
    family if he dies, only if he is the victim of an illicit act, which the plaintiff must
    prove and which brings the case under article 1910 instead of 1913.
Butte, supra note 18, at 814.
  153. A. VON MEHREN & J. GORDLEY, supra note 33, at 577 n.44.
  154. See supra note 77.
  155. Mexican Civil Code § 1916 (M. Gordon trans. 1980).
  156. See supra text accompanying note 94.
  157. See supra text accompanying note 62.
  158. R. ROJINA VILLEGAS, supra note 55, at 137.
  159. E. GUTIERREZ Y GONZALEZ, supra note 55, at 651.
266                 Loy. LA. Int'l & Comp. L J.                              [Vol. 8:235

allows an award for moral damage recovery, but makes such award
contingent upon a finding of material damage. 6° Mexican scholar
Manuel Borja Soriano states that "with respect to the second part of
Article 1916 of our Civil Code, it must be mentioned that there cannot
be an award of moral damages without a prior finding of material
damage."161
      Consistent application of the "mixed theory" is hindered by the
wording of section 1916 and the fact that civil law judges are bound to
strict rules of interpretation of the codes.' 62 Judges are forbidden
from assuming the role of a legislator. 63 Therefore, normally, when
the meaning of a code is clear on its face, the literal meaning of the
code shall not be disregarded even though the spirit and intent of the
code arguably contradict the literal meaning of the code. 164 Since sec-
tion 1916 does not specifically provide for an independent cause of
action for intentional or negligent infliction of moral damages, courts
are unlikely to allow moral damages recovery independent of material
damage.
      In order for the courts to consistently grant recovery for moral
damages, section 1916 must be amended such that: (1) the award of
moral damage recovery is mandatory and not permissive as it is now;
(2) moral damages recovery is available regardless of the legality of
the wrongdoer's conduct; (3) the award for moral damages recovery
does not require a prior finding of material damage; and (4) there be
no arbitrary limitation upon recovery to one-third of the material
          65
damage.
B.    Mexican Law Actions for Intentional and Negligent Infliction of
                                 Emotional Distress
      This section of the Article will discuss possible outcomes in Mex-

   160. Id. at 647.
   161. "En orden a la segunda parte del articulo 1916 de nuestro codigo Civil, hay que ob-
servar que no prodra haber indemnizacion de un dano moral si no acompanaa un dano mate-
ral". M. BORJA SORIANO, supra note 58, at 432 (emphasis added) (translation in text by
author).
   162. See supra note 31 and accompanying text.
   163. See supra note 18 and accompanying text.
   164. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See also R. SCHLESINGER,
supra note 21, at 514-15.
   165. However, it is interesting to note that California has adopted this idea of a cap on
pain and suffering damages awards in medical malpractice cases. The ceiling placed by the
medical Injury Compensation Act of 1975 is $250,000. See Fine v. Permanents Medical
Group, 38 Cal. 3d 137 (1985).
1986]                     Moral Damages in Mexican Law

ican courts of various fact situations which under California law
would constitute actions for negligent infliction of emotional distress.
      In Accounts Adjustment Bureau v. Cooperman,166 decided July
22, 1984, the California Court of Appeals held that parents could as-
sert a cause of action for negligent infliction of emotional distress
against a psychologist who allegedly misdiagnosed their son's learning
disability, if the parents established the serious nature of the misdiag-
nosis. 16 7 In Cooperman, the parents took their son to a psychologist
for diagnosis and treatment of his learning problems. The psycholo-
gist misdiagnosed the child as suffering from DSMII non-psychotic
organic brain syndrome 309.9.168 The parents argued that a proper
diagnosis would have revealed that their son did not have any sort of
psychological problem, but was merely going through a typical child-
hood readjustment phase.
     California courts follow the requirements set forth in Dillon v.
Legg169 in situations of non-impact injury 170 which is the situation
created by the facts of Cooperman. In these cases, in order to deter-
mine whether a plaintiff is entitled to protection from negligent inflic-
tion of emotional distress the foreseeability of risk is the critical
inquiry. 17'
     In Molien v. Kaiser Foundation Hospitals,'72 the California
Supreme Court refined Dillon v. Legg for application of the non-im-
pact type case. 73 In Molien, the court defined Mr. Molien as a "di-
rect victim' ' 174 of the defendant's negligence, although he was not the
primary victim of the diagnosis. By defining the plaintiff as a "direct
victim," the court established that a duty was owed to the plaintiff
without showing that the plaintiff was foreseeable within the bounds

   166. Accounts Adjustment Bureau v. Cooperman, 158 Cal. App. 3d 844, 204 Cal. Rptr.
881 (1984).
   167. Id.
   168. Id. at 848.
   169. 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968).
   170. The factors delineated in Dillon with respect to foreseeability of risk are: (1) proxim-
ity of the bystander to the scene of the accident; (2) sensory and contemporary observation by
the bystander of the accident; and (3) closeness of the relationship between the victim and the
bystander. Id. at 740-41.
   171. Dillon, 68 Cal. 2d at 741.
   172. 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980).
   173. The defendant physicians in Molien negligently misdiagnosed Mrs. Molien as having
syphilis. Mrs. Molien was advised to inform her husband of the diagnosis. The misdiagnosis
crated suspicion and tension in the marriage, eventually resulting in dissolution of marriage.
Mr. Molien sought damages for negligent infliction of emotional distress.
   174. Molien, 27 Cal. 3d at 922-23.
268                  Loy. L.A. Int'l & Comp. L. J.            [Vol. 8:235

set by the Dillon factors.17 5 The court also noted the difficulty in
drawing a line between physiological and psychological injury, and
concluded: "the attempted distinctions between physical and psycho-
logical injury merely clouds the issue. The essential question is one of
proof; whether the plaintiff has suffered a serious and compensable
injury should not turn on this artificial and often arbitrary classifica-
               176
tion scheme."'
      Molien held that physical injury is not required for recovery for
negligent infliction of emotional distress as long as there is some
"guarantee of genuiness"' 77 found in the circumstances of the case.
Accordingly, Molien mandates that courts now leave to the jury ques-
tions of whether a plaintiff's claim is genuine and whether a defend-
                                                                  78
ant's conduct caused the plaintiff serious emotional distress.1
      Under Mexican law the analysis would be different. Fundamen-
tal civil law concepts help explain how a Mexican court would decide
the Cooperman case. The codes, in particular the Civil Code, being
the main sources of law, must be addressed at the beginning of any
analysis of a particular fact situation. 79 These codes are necessarily
general to encompass a broad range of circumstances. 80° The judge
must interpret these general statutes and by a process of deduction
apply the general law to the specific fact situation before him/her.' 8 '
      The specific sections of the Mexican Civil Code which apply in
the Cooperman case are sections 1910, 1915 and 1916.182 These stat-
utes pertain to tort liability damages and moral damage recovery.
Even though these statutes might not cover a particular fact situation,
section 18 of the Preliminary Provisions of the Civil Code states:
"[tihe silence, obscurity or insufficiency of the law do not authorize
the judges or courts to refrain from deciding a controversy."'' 8 3 In
addition, section 19 of the same Preliminary Provisions states: "Ju-
ridical controversies of a civil nature shall be decided in accordance
with the letter of the law or its juridical interpretation. In the absence
of a law, they shall be decided in accordance with general legal princi-

  175.   Id.
  176.   Id. at 929-30.
  177.   Id. at 930.
  178.   Id.
  179.   See supra text accompanying notes 11-24.
  180.   Id.
  181.   Id.
  182.   See supra text accompanying notes 67, 72 and 93.
  183.   Mexican Civil Code § 18 (M. Gordon trans. 1980).
19861                      Moral Damages in Mexican Law

ples." 1 This latter section is frequently referred to by courts review-
         84


ing lower court decisions because the party appealing the lower court
decision usually argues that the lower court erred in its interpretation
of the codes. 8 5 Section 1910 provides for subjective liability by saying
that "he who acting illegally or against good customs causes damage
to another is obliged to repair it .... ,"186 As previously mentioned,
there are no independent torts in Mexican law. There is only a law of
tort.'8 7 Since there is no independent cause of action for either inten-
tional or negligent infliction of emotional distress, the only significant
issue is whether the victim suffered injury due to the "fault" of the
wrongdoer.
      As in California, to recover for negligence under Mexican Civil
Code section 1910, the parents of the misdiagnosed child must prove
actual damages to the child and/or parents. 8 8 This is, of course, in
addition to establishing duty, breach, and causation. In Cooperman,
the child could allege that as a proximate cause of the negligent diag-
nosis by the psychologist, the child will be prevented from procuring
appropriate life and medical insurance and will also be precluded
from pursuing certain occupations in the future. The child's moral
damages, arguably, would consist of any detrimental impact caused
by the misdiagnosis on the child's ability to fully enjoy a normal

   184. Mexican Civil Code § 19 (M. Gordon trans. 1980).
   185. This review is normally available by filing a "writ ofamparo." Amparo is a procedure
directed at challenging certain acts performed by the authorities in violation of rights recog-
nized by the Constitution of Mexico for the protection of nationals and foreigners. It is also
directed to the maintenance of the respect for legality by means of the guarantee of the exact
and accurate application of the law. During the 113 years which have elapsed since it was
incorporated in article 102 of the Constitution of 1857, amparo has evolved into a highly com-
plex and, in some respects, peculiarly Mexican institution performing three distinct functions:
(1) the defense of the civil liberties enumerated in the first twenty-nine articles of the Constitu-
tion; (2) the determination of the constitutionality of federal and state legislation; and (3) cau-
sation. R. BAKER, JUDICIAL REVIEW IN MEXICO: A STUDY OF THE AMPARO SUIT 267
(1971). In the words of C. Schwartz:
      The Amparo operates formally to protect the individual and social rights guaranteed
      by the first twenty-nine articles of the Mexican Constitution, the 'Bill of Rights.' But
      because of modem statutory and judicial interpretation of articles fourteen and six-
      teen of the constitution, the writ may extend to violations of other constitutional
      limits on governmental activity as well. Article fourteen permits district courts to
      enjoin officials who fail to follow essential formalities of procedure and statutes issued
      prior to the controversy. Article sixteen requires officials to demonstrate the compe-
      tency of their authority and the legal basis and justification for the action taken.
Schwartz, Rights and Remedies in the FederalDistrict Courts of Mexico and the United States,
4 HASTINGS CONST. L.Q. 67, 72 (1977).
   186. See supra text accompanying note 67.
   187. See supra text accompanying note 34.
   188. See supra text accompanying notes 67-69.
                      Loy. L.A. Intl & Comp. L. J.                             [Vol. 8:235

life. 189 However, in order for the parents to recover damages, most
likely a finding of material damage to the parents would be a
prerequisite. 190
      In contrast to California case law, Mexican courts do not distin-
guish between physical and non-physical injury.1 9 1 Therefore, proof
of foreseeability of harm to the plaintiff, which is required in Califor-
nia courts in order to establish that the defendant owed the plaintiff a
duty of care, would not be required in a case like Cooperman in Mexi-
can courts. Additionally, since the prerequisite factors set forth in
Dillon 192 are not required in Mexican law, lawsuits are arguably more
prone to fraudulent claims. One way Mexican courts can guard
against fraud, abuse and unfairness is in limiting the award for the
moral damages recovery. Section 1916 limits these awards for moral
                                                              93
damages to one-third of the award for material damage.'
      Another way the Mexican courts guard against fraudulent or
abusive claims is to only award moral damages recovery "in favor of
the victim of an illegal act, or of his family if the victim dies. . .."194
Unless the victim dies, section 1916 clearly only allows the victim of
an illegal act to recover moral damages. Therefore, only the child in
Cooperman could recover moral damages under section 1916. Never-
theless, as the California Court of Appeals points out in Cooperman, it
is difficult to envision a two-year old child suffering from emotional
distress caused by the misdiagnosis of a psychologist. The parents are
the ones who are more likely to suffer emotional distress from the
misdiagnosis of their child.' 95
      Even if the Mexican court concludes that the child's difficulty in
pursuing certain types of occupations and obtaining medical and life
insurance constitutes moral damage to the parents, the court still
might not award the parents moral damages recovery. Section 1916

  189. However, the broad interpretation given by the Supreme Court of Mexico to the term
"patrimonial damage" in ConstructoraCross, S.A., 15 S/F 6a 4:290, may indicate a willingness
to allow recovery for damages even if under the label of "patrimonial" (material) instead of
extra-patrimonial (moral).
  190.     Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying
note 93.
   191.    Instead, Section 1916 of the Mexican Civil Code seems to require a prior finding of
material   damage. See supra text accompanying note 93.
   192.    See supra note 170.
   193.    Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying
note 93.
   194.    Id.
   195.    Cooperman, 158 Cal. App. 3d 844 (1984).
 1986]                    Moral Damages in Mexican Law

 does not specifically provide that parents (nonvictims) can recover
 moral damages for harm suffered by their child.196 However, section
 19 of the Preliminary Provisions of the Mexican Civil Code specifi-
 cally states that the judge must decide judicial controversies "in ac-
cordance with the letter of the law or its juridical interpretation."'1 97
This means the court must consider whether awarding moral damages
recovery to the parents would result in reversal by the Supreme Court
of Mexico due to such award constituting a mistake of law or misin-
terpretation of the law. In a civil law country such as Mexico, a judge
would be accused of usurping legislative functions were he or she to
extend the award of moral damages recovery to the parents under the
facts of Cooperman.
      The only way the parents could recover for moral damages, other
than by amending section 1916, is for the court to conclude that sec-
tion 1916 is inapplicable. There would then, arguably, be a gap or
lacuna 198 in the law codes and the court could award moral damages
recovery to the parents pursuant to section 19 of the Preliminary Title
which provides that in the "absence of law," the court may decide a
case "inaccordance with general legal principles."'' 99 In order to de-
termine what are the applicable relevant "general legal principles, ' ' 200
the court will look to the writings of both Mexican and civil law
scholars. It will also, usually, consider the decisions of the highest
courts of Mexico and other civil law countries; in particular, the
French Cour de Cassation.
      If Molien2°l had been decided by a Mexican court pursuant to
Mexican law, the plaintiffs husband probably would not recover
moral damages compensation from the doctors who negligently mis-
diagnosed his wife as having syphilis, for the same reason the parents
in Cooperman would not be able to recover for moral damages. The

   196. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying
note 93.
   197. See supra text accompanying note 184 (emphasis added).
   198. See supra text accompanying note 19.
   199. Id.
   200. There is disagreement as to the meaning of "general principles of law" in the different
codes. During the 19th Century, (when codification began) it was believed that these princi-
ples derived only from positive norms of a given national system, thus sharply differentiating
the "general principles" from natural law. In recent years, "general principles of law," are
found in the enacted law and also outside of it. See R. SCHLESINGER, supra note 21, at 602-03.
See also R. DAVID & J. BRIELEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY 114-18
(1968).
   201. 27 Cal. 3d 916.
                     Loy. L.A. Int'l & Comp. L. J.                             [Vol. 8:235

delegation by the California Supreme Court to the trier of fact of the
duty to determine the genuiness of a claim and whether there is relia-
ble proof of serious injury20 2 cannot be accomplished under Mexican
law since there is no jury.
       In Slaughter v. Legal Process and Courier Service 20 3 a process
server improperly served the plaintiff by merely dropping a copy of a
complaint in the plaintiff's mailbox while the plaintiff was away on
vacation. The process server then signed a sworn affidavit of personal
service on plaintiff Slaughter. Based upon this affidavit, a default
judgment was entered against the plaintiff. In an action by the tenant
 against Legal Process and others alleging, inter alia, intentional and
 negligent infliction of emotional distress, the California Court of Ap-
 peals denied defendant's summary judgment motion only on the issue
                                                   2 °4
 of negligent infliction of emotional distress.
       If Slaughter had been decided by a Mexican court under Mexi-
 can law, the Mexican court very likely would have awarded to the
 plaintiff moral damages. The court would reason that the plaintiff
 was the victim of the defendant's wrongful conduct and suffered ma-
 terial damage (eviction) as a result of the improper service of process.
 The plaintiff in Slaughtermight also possibly recover moral damages
 compensation from the defendant based on the civil law theory of
 abuse of right. 20 5 According to this theory, conduct which is per se
 lawful may20 6 become illegal and therefore constitute a civil tort if the
 conduct constitutes an abuse of right, which in turn constitutes
 "fault. ' 20 7 If there is "fault" or an "illicit act," the court can award
 moral damages recovery. However, moral damages recovery based
 on this reasoning has not yet been argued before the Mexican courts.
 This is strange since section 1912 of the Civil Code expressly provides

   202. The court in Molien stated that in emotional distress cases when proof of mental
distress is not of a medically significant nature, "the jurors are best situated to determine
whether and to what extent the defendant's conduct caused emotional distress, by referring to
their own experience." 27 Cal. 3d at 930.
   203. 162 Cal. App. 3d 1236, 209 Cal. Rptr. 189 (1984).
   204. Id. at 1251.
   205. For a good understanding of the civilian notion of abuse of right, see Gutteridge,
Abuse of Rights, 5 CAMBRIDGE L.J. 22 (1933).
   206. That is, the owner of a house erected a tall dummy chimney on his roof for the sole
purpose of annoying a neighbor by depriving him of the access of light to certain of his rooms.
Although this owner was doing something that he had an absolute right to do (lawful per se),
the French Cour de cassation held the act to be wrongful as an abuse of right. Gutteridge,
supra note 205, at 32.
   207. PLANIOL, supra note 51, at 477.
 1986]                     Moral Damages in Mexican Law                                     273

 for a cause of action for abuse of right. 20 8
      The abuse of rights theory of recovery for moral damages might
also be used in instances involving section 1913 strict liability. 20 9 As
has been explained, 2 10 this section does away with the requirement of
fault, making the legality or illegality of defendant's conduct irrele-
vant as long as it is dangerous, and, thereby, precluding moral dam-
ages recovery. However, since a finding of abuse of right carries with
it the element of fault (whether intentional or negligent) an argument
can be made in favor of a moral damages award even under a strict
                                                2
liability theory as provided by section 1913. 11
      Finally, the fact situation described at the outset of this Article
should be examined. A widow of a California resident has a cause of
action against a Mexican airline for the wrongful death of her hus-
band who was seriously injured while vacationing in a Mexican re-
sort. The outrageous conduct of the airline in refusing to fly the
injured man to Los Angeles raises the possibility of a moral damage
award.
      The plaintiff could base her action on section 1913212 (objective
liability) since an airline, like an automobile, is considered a danger-
ous instrumentality. Fault or negligence by the airline will be pre-
sumed and the court will order the airline to pay damages. However,
the widow will not be able to receive an additional amount as recov-
ery for moral damages. If, on the other hand, the plaintiff bases her
cause of action on section 1910213 (subjective liability) it is very likely
that she will be able to prove illegal conduct by the airline on the facts
mentioned. This is also one of those few instances in which a cause of
action for immoral conduct, or contra bonos mores, may be successful,
especially if the plaintiff manages to prove monopoly on the part of

   208. "When in the exercise of a right, damage is caused to another, there is an obligation
to indemnify such damage, if it is proved that the right was exercised merely for the purpose of
causing the damage, without profit to the owner of the right." Mexican Civil Code § 1912 (M.
Gordon trans. 1980).
   209. See supra text accompanying note 72.
   210. See supra text accompanying notes 103-04.
   211. See supra text accompanying note 72. This appears to be a novel approach to the
problem in strict liability actions. Mexican scholars have not discussed this possibility. Tradi-
tionally the theory of abuse of rights was confined to intentional and malicious acts that caused
damage without benefit to the actor. Only recently has this theory been extended to negligent
abuse of a right. See Bolgar, Abuse of Rights in France, Germanyand Switzerland: A Survey of
a Recent Chapter in Legal Doctrine, 35 LA. L. REV. 1016, 1020 (1975).
   212. See supra text accompanying note 72.
   213. See supra text accompanying note 67.
                      Loy. L.A. Int'l & Comp. L. J.                               [Vol. 8:235

the airline.2 1 4 Assuming that causation is not at issue, there will be a
finding of fault and very likely the court will award her recovery for
moral damages. An analogy to the reasoning employed by the
Supreme Court of Mexico in Constructora Cross, S.A., 21 5 demon-
strates that plaintiff suffered "material damage" by the loss of her
husband. In that case, the Court discussed what the death of a minor
son meant to a father even though the son did not as yet have an
income. Therefore, whether or not plaintiff depended on her deceased
husband for support is irrelevant. 216
     The airline would be "the person responsible for the act" under
the theory of respondeatsuperior as provided by section 1924 of the
Mexican Civil Code. 21 7 If the victim dies, the widow would qualify as
family 218 entitled to an equitable indemnity as moral reparation.

                                    V.     CONCLUSION

      Tort liability in civil law countries generally, and in Mexico in
particular, developed from historical and legal concepts different from
those of the Anglo-American tradition. The characterization of this
discipline as the "law of tort" in opposition to that of the "law of
torts" leads to sharp conceptual differences in the approach to tort
liability in civil law versus common law. The emphasis on liability
based on fault in contrast to strict liability also accounts for some of
the conceptual differences between the two legal systems. This liabil-
ity based on fault does not distinguish conceptually between inten-
tional and negligent conduct: either one will trigger fault or illegal
conduct under the system.
      This approach is totally different from a common law analysis
with respect to a cause of action for intentional tort and the analysis
that is required in dealing with a cause of action based on negligence.
Thus, different results as to liability and damage awards may be easier
to understand. The lack of juries, the unsophisticated insurance laws
and limitations in the amount of the awards contained in the statutes

   214. See supra text accompanying note 18.
   215. See supra text accompanying note 96.
   216. See supra text accompanying note 97.
   217. "Managers and owners of mercantile establishments are liable for damages caused by
their workmen or servants in the exercise of their duties. This liability ceases if they show that
in the commission of the damage no fault or negligence can be imputed to them." Mexican
Civil Code § 1924 (M. Gordon trans. 1980).
  218.     Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying
note 97.
1986]               Moral Damages in Mexican Law

also explain differences in the amount of damages awarded. Addi-
tionally, the strict concept of separation of powers in Mexico that pre-
vents a judge from creating law hampers the ability of the judges to
decide novel issues in areas like negligent infliction of emotional
distress.
      With respect to moral damages, the clearly marked role of the
judge in a civil proceding as that of ordering damages to provide satis-
faction to the victim, in contrast to the role of the judge in a criminal
proceeding, who orders damages as punishment to the wrongdoer, ini-
tially explains the absence of punitive damages in tort liability.
      This difference in roles between the civil and criminal judges in
turn results from the Roman distinction between public law and pri-
vate law. This division of the law is also expressed in the strict con-
cept of separation of powers that is followed in Mexico and most civil
law countries. The statutory scheme that places a limit to the amount
of moral damage and requires a finding of material damage further
explains the absence of punitive damages in tort law.
      All the considerations point to a marked difference in the area of
damage award for tort liability between Mexican law and American
law. At a time in which much is heard about crisis in our tort system
and a need to restructure our insurance laws, it may be useful to learn
about the experiences of our neighbors and that of other legal systems
in order to arrive at a more realistic determination of damage award
for liability in tort.
                                                                                                        EXHIBIT "D"
                                                                                                
                                                                          

                                                              October 3, 2014

Via Email

          Re:        Usumacinta Case.


         I am writing you to update you concerning recent developments in your case. I am very sad to inform you
that we have suffered another significant setback in your case after years of work. By way of background, I want to
remind you about the timeline of the litigation.

         We initially filed the case in Texas against the various defendants that we believe played a role in the
explosion. The Defendants moved to dismiss the case back to Mexico in January 2009. We timely opposed the
motion in May 2009. The federal judge in the Eastern District of Texas dismissed the case in July 2009.
Subsequently, he vacated the award and the case was transferred to a different federal judge from the Eastern
District of Texas. The Defendants again filed a motion to dismiss in December 2010. We responded in January
2011. Unfortunately, the judge rejected our arguments and dismissed the case back to Mexico in April 2011.

          My firm undertook an extensive search to retain Mexican counsel. We drafted extensive petitions and filed
the cases in Mexico consistent with the Court’s order. The Mexican Court dismissed the petitions for lack of
jurisdiction in May 2013. Subsequently, we moved to reopen the cases again in the United States.

        Defendants moved in November 2013 to dismiss the cases again arguing that the cases were still proper to
be prosecuted in Mexico only. However, the cases in the United States were assigned to a different federal judge.
We opposed Defendants motions. Unfortunately, the Judge dismissed the cases again in May of this year.

         I truly regret that we were not able to obtain justice for you. We spent hundreds of thousands of dollars
seeking to hold the Defendants accountable on your behalf. The most recent judge provided a possibility that the
cases could be brought again in the United States. I have attached the order to this letter. Unfortunately, I think the
chances of the Court accepting the jurisdiction for these cases even after following all steps is remote.

         As a result, my firm and The Gomez Law Firm P.L.L.C. are withdrawing as counsel. I urge you to seek the
advice of Mexican Counsel concerning refiling these cases in Mexico to see if the Courts will accept jurisdiction
consistent with the requirements of the Eastern District of Texas order.

         Please call or email if you have any questions or need access to any documents from the file and we will be
happy to assist.

                                                                              Sincerely,



                                                                              Kurt B. Arnold




     6009 Memorial Drive  •  Houston, TX 77007  •  Phone 713.222.3800  •  Toll Free 866.222.2606  •  Fax 713.222.3850  •  www.arnolditkin.com 
 
                                                                                                
                                                                          
                                                           3 de octubre del 2014

Via Email

          Asunto: Caso Usumacinta.


         Le estoy escribiendo a usted para actualizarlo sobre lo que concierne recientes desarrollos en su caso.
Estoy muy triste en informarle a usted que hemos sufridos otro obstáculo significante en su caso después de años de
trabajo. Por medio de los antecedentes, yo quiero recordarle a usted acerca de la cronología de la litigación.

         Nosotros inicialmente presentamos el caso en Texas en contra varios demandados que creíamos tomaron un
papel en la explosión. Los Demandados tomaron medidas para rechazar el caso para atrás a México en enero del
2009. Nosotros oportunamente presentamos contraposición a la moción en mayo del 2009. El juez federal en el
Distrito Este de Texas rechazó el caso en julio del 2009. Subsiguientemente, él dejó sin efecto el fallo y el caso fue
traspasado a un juez federal diferente del Distrito Este de Texas. Los Demandados de nuevo presentaron una
moción para rechazar en diciembre del 2010. Nosotros respondimos en enero del 2011. Desafortunadamente, el
juez rechazó nuestros argumentos y rechazó el caso para atrás a México en abril del 2011.

         Mi abogacía emprendió una extensiva búsqueda para retener un abogado en México. Nosotros borramos
extensivos petitorios y presentamos los casos en México consistente con la orden del Tribunal. El Tribunal de
México rechazó los petitorios por falta de jurisdicción en mayo del 2013. Subsiguientemente, nosotros presentamos
una medida para reabrir los casos de nuevo en los Estados Unidos.

         Los Demandados presentaron una medida en noviembre del 2013 para rechazar los casos de nuevo
alegando que los casos todavía estaban apropiados para ser perseguidos en sólo México. Sin embargo, los casos en
los Estados Unidos fueron asignados a un juez federal diferente. Nosotros estábamos en contraposición con las
mociones de los Demandados. Desafortunadamente, el juez rechazó los casos de nuevo en mayo del presente año.

         Yo realmente arrepiento que nosotros no fuimos capaces de obtener justicia para usted. Nosotros gastamos
cienes de miles de dólares buscando a mantener los Demandados responsables por parte suya. El juez más reciente
proveyó una posibilidad que los casos podrían ser presentados de nuevo en los Estados Unidos. Yo he anexado la
orden a esta carta. Desafortunadamente, yo pienso que las posibilidades que el Tribunal aceptará la jurisdicción por
estos casos aun después de seguir todos los pasos son remotas.

         Como un resultado, mi abogacía y la abogacía de Julian C. Gomez nos estamos retirando como abogados.
Le urjo a usted que busque el consejo de un Abogado de México sobre los que concierne presentando estos casos de
nuevo en México para ver si los Tribunales acepten jurisdicción consistente con los requerimientos de la orden del
Distrito Este de Texas.

        Favor de llamar o enviarnos un correo electrónico si usted tiene algunas preguntas o necesita acceso a
cualesquiera documentos del archivo y estaríamos gustosos de asistirlo.

                                                                              Sinceramente,



                                                                              Kurt B. Arnold




     6009 Memorial Drive  •  Houston, TX 77007  •  Phone 713.222.3800  •  Toll Free 866.222.2606  •  Fax 713.222.3850  •  www.arnolditkin.com 
 
                                EXHIBIT
                                EXHIBIT "E"
                                        "E"                                  I



                                                                        '[




                           MEXICAN
                         CIVIL CODE
                        ANNOTATED
! .



                           Bilingual Edition


                                  2009 Edition


                             Translated and Updated by

                       PROFESSOR JORGE A. VARGAS
                               University of San Diego
                                   School of Law




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      Mat # 40695131
                         CODIGO CIVIL FEDERAL

                   DISPOSICIONES PRELIMINARES

Articulo 1 Las disposiciones de este C6digo regiran en toda la Republica en
    asuntos del orden federal.
Articulo 2 La capacidad jurfdica es igual para el hombre y la mujer; en
    consecuencia, la mujer no queda sometida, por raz6n de su sexo, a restricci6n
    alguna en la adquisici6n y ejercicio de sus derechos civiles.
Articulo 3 Las leyes, reglamentos, circulares 0 cualesquiera otras disposiciones
    de observancia general, obligan y surten sus efectos tres dias despues de Sll
    publicaci6n en el Peri6dico Oficial.
    En los distintos lugares en que se publique el Peri6dico Oficial, para que las
    leyes, reglamentos, etc., se reputen publicados y sean obligatorios, se necesita
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    publicaci6n haya sido anterior.
Articulo 5 A ninguna ley ni disposici6n gubernativa se Ie dara efecto retroactivo en
    perjuicio de persona alguna.
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    si no se hace en terrninos claros y precisos, de tal suerte que no quede duda del
    derecho que se renuncia.
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    interes publico seran nulos, excepto en los casos en que la ley ordene 10
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    10declare expresamente 0 que contenga disposiciones total 0 parcialmente
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    practica en contrario.
Articulo 11 Las leyes que establecen excepci6n a las reglas generales, no son aplicables
    a caso alguno que no este expresamente especificado en las mismas leyes.

2
                                                          FEDERAL CIVIL CODE

RES                                                  PRELIMINARY PROVISIONS
1   la Republica en            Article 1 The provisions of this Code shall apply to the entire Republic in matters
                                   of a Federal nature.
la mujer; en                   Article 2 The civil status of men and women is equal; wherefore, women are not
: su sexo, a restriccion           restricted, by reason of their sex, in the full enjoyment and exercise of their
iles.                              civil rights.
1 otras disposiciones          Article 3 The laws, regulations, circulars, or any other provisions of general
; dias despues de su               observance are compulsory and take effect three (3) days after their publication
                                   in the official daily.
Oficial, para que las              For the laws, regulations, etc., to be deemed published and become obligatory
rligatorios, se necesita           in places other than where the official daily is published, the time period
urra un dia mas por                determined in the preceding paragraph shall be increased by one (1) additional
ceda de la mitad.                  day for each forty (40) kilometers of distance, or fraction thereof exceeding
bservancia general,                one-half (112), from the place of such publication.
e dia, con tal de que su       Article 4 If a law, regulation, circular or provision of general observance designates
                                   the day when it is to take effect, it shall take effect on such day, provided it was
lra efecto   retroactivo en        previously published.
                               Article 5 No law or other governmental provision which shall be applied in a
Je la observancia                  retroactive manner to the prejudice of any person.
arse los derechos              Article 6 No person may be exempted by agreement from observance of the law,
 cuando la renuncia no             nor may alter or modify it. Private rights can only be waived when they do not
                                   directly affect the public interest or impair the rights of third parties.
produce efecto alguno          Article 7 The waiver authorized in the preceding Article produces no effect unless
que no quede duda del              it is made in clear and precise terms, so that there is no doubt as to the rights
                                   waived.
prohibitivas 0 de              Article 8 Any act prohibited by law or those contrary to the public interest shall be
la ley ordene 10                   null and void, unless otherwise provided by law.
                               Article 9 A law is abrogated or repealed only by a subsequent law which expressly
iosterior que as!                  so declares it or which contains provisions totally or partially incompatible
na! 0 parcialmente                 with the previous law.
                               Article 10 Disuse, custom or contrary practice cannot be alleged for
se desuso, costumbre       0       noncompliance with the law.
                               Article 11 Laws that establish an exception to general rules are not applicable to
ierales, no son aplicables         cases not expressly specified in the excepting laws.
 mismas leyes.

                                                                                                                       3
             TITULO SEPTIMO DE LA PRESCRIPCION

                   Capitulo I-Disposiciones          Generales
Articulo 1135 Prescripci6n es un medio de adquirir bienes 0 de librarse de             A
    obligaciones, mediante el transcurso de cierto tiempo y bajo las condiciones
    establecidas por la ley.
Articulo 1136 La adquisici6n de bienes en virtud de la posesi6n se llama               A
    prescripci6n positiva; la liberaci6n de obligaciones, por no exigirse su
    cumplimiento, se llama prescripci6n negativa.
Articulo 1137 Solo pueden prescribirse los bienes y obligaciones que estan en el       A
    comercio, salvo las excepciones establecidas por la ley.
Articulo 1138 Pueden adquirir por prescripci6n positiva todos los que son capaces
    de adquirir por cualquier otro titulo; los menores y demas incapacitados pueden    A
    hacerlo por medio de sus legftimos representantes.
Articulo 1139 Para los efectos de los articulos 826 y 827, se dice legalmente
    cambiada la causa de la posesi6n cuando el poseedor que no poseia a titulo
    de duefio comienza a poseer con este caracter, y en tal caso la prescripci6n no    A
    corre sino desde el dia en que se haya cambiado la causa de la posesi6n.
Articulo 1140 La prescripci6n negativa aprovecha a todos, aun a los que por sf
    mismos no pueden obligarse.
Articulo 1141 Las personas con capacidad para enajenar pueden renunciar la
    prescripci6n ganada, pero no el derecho de prescribir para 10 sucesivo.
                                                                                               I

                                                                                       ),
Articulo 1142 La renuncia de la prescripci6n es expresa 0 tacita, siendo esta ultima
    la que resulta de un hecho que importa el abandono del derecho adquirido.
Articulo 1143 Los acreedores y todos los que tuvieren legitimo interes en que la
                                                                                       j
    prescripci6n subsista, pueden hacerla valer aunque el deudor 0 el propietario
    hayan renunciado los derechos en esa virtud adquiridos.
Articulo 1144 Si varias personas poseen en comun alguna cosa, no puede ninguna
                                                                                           j
    de elias prescribir contra sus copropietarios 0 coposeedores; pero sf puede
    prescribir contra un extrafio, y en este caso la prescripci6n aprovecha a todos
    los partfcipes.




430
                              TITLE SEVEN LIMITATIONS OF ACTIONS

                                         Chapter 1-. General Provisions
  se de           Article 1135 Limitations of actions is the means whereby one can acquire property
  mdiciones           or be released from an obligation by the passage of a specified period of time
                      and under conditions established by law.
 rna
                  Article 1136 The acquisition of assets by possession is referred to as affirmative
 .e su
                      limitations of actions; the release from obligations for failure to demand with
                      its compliance is referred to as negative limitations.
 estan en el      Article 1137 Only those assets and obligations that are in the stream of commerce
                      can be the subject of limitations of actions, except for those specifically
 : son cap aces       exempted by law.
 itados pueden
                  Article 1138 All persons can acquire property by affirmative prescription if
                      they have capacity to acquire title in any other manner. Minors and other
 lmente               incompetents can acquire property by affirmative limitations through their legal
fa a titulo           representatives.
scripcion no
                  Article 1139 For the purposes of Articles 826 and 827, the character of possession
.esion,
                      changes when the person in possession no longer holds as owner but thereafter
[ue por sf            asserts possession as such. The statute of limitations begins to run from the
                      time of the change in the character of the asserted possession.
nciar la          Article 1140 Negative limitation is available to all persons, including those who
sivo.                 cannot incur an obligation in their own name.
fo esta ultima    Article 1141 Any person who has the capacity to convey may renounce the
dquirido,             limitations period attained, but not the right of adverse possession to accrue in
                      the future.
s en que la
propietario       Article 1142 The renunciation of limitations is either express or implied. An
                      implied renunciation results from some act that implies the abandonment of
                      acquired rights.
ede ninguna
i puede           Article 1143 Creditors and all others who have a legitimate interest in the
ha a todos            subsistence of limitations may assert their rights against the owner of the
                      property or the obligor, even though the owner/obligor has renounced any
                      rights so acquired.
                  Article 1144 If more than one person has possession of an asset, none of them
                      can assert adverse possession against his co-owner or co-possessors; but one
                      person's adverse holding shall be effective against a third party and shall inure
                      to the benefit of all the co-possessors.



                                                                                                      431
Mexican Civil Code Annotated

            Capitulo V-De        la Interrupcion      de la Prescripcion

Articulo 1168 La prescripcion se interrumpe:
    I.     Si el poseedor es privado de la posesion de la cosa 0 del goce del
           derecho por mas de un ario;
    II.    Por demanda u otro cualquier genero de interpelacion judicial notificada
           al poseedor 0 al deudor en su caso.
           Se considerara la prescripcion como no interrumpida por la
           interpelacion judicial si el actor desistiese de ella 0 fuese desestimada
           su demanda;
    III.   Porque la persona a cuyo favor corre la prescripcion reconozca
           expresamente, de palabra 0 por escrito, 0 tacitamente por hechos
           indudables, el derecho de la persona contra quien prescribe.
           Empezara a contarse el nuevo terrnino de la prescripcion, en caso de
           reconocimiento de las obligaciones, desde el dia en que se haga; si se
           renueva el documento, desde la fecha del nuevo titulo, y si se hubiere
           prorrogado el plazo del cumplimiento de la obligacion, desde que este
           hubiere vencido.

                           TESIS SOBRESALIENTE
      PRESCRIPCION ADQUISITIVA. EXISTE RENUNCIA TACITA A ESA
      FORMA DE ADQUIRlR LA PROPRIEDAD, CUANDO EL POSEEDOR
      RECONOCE EL DERECHO DEL PROPIETARIO, ANTES THE
      PROMOVER EL JUICIO DE USUCAPION (LEGISLACrON DEL ESTADO
      DE PUEBLA).-" ... cuando el beneficiado con la prescripcion positiva, antes
      de solicitar a la autoridad judicial competente la declaratoria de usucapion
      en su favor, reconoce por hecho indubitable el derecho del propietario, debe
      entenderse que renuncio tacitamente a la prescripcion que habia comenzado 0
      ... ganado, toda vez que la interrupcion de que habla la ley, evidentemente deja
      sin efectos los derechos del poseedor con respecto a la prescripcion, hasta el
      momenta del reconocimiento."
      Amparo directo 418/987. Jose Flores Tobon. 14 de abril de 1988. Unanimidad
      de votos. Ponente: Enrique Duenas Sarabia. Secretario: Ramon Sandoval
      Hernandez. Primer Tribunal Colegiado del Sexto Circuito. Informe rendido a
      la Suprema Corte de Justicia de la Nacion por su Presidente, Tercera Parte,
      Vol. IL Mayo Ediciones, S. de R.L. Mexico, 1988, p. 755.
Articulo 1169 Las causas que interrumpen la prescripcion respecto de uno de los
    deudores solidarios, la interrumpen tambien respecto de los otros.
Articulo 1170 Si el acreedor, consintiendo en la divisi6n de la deuda respecto de
    uno de los deudores solidarios, s610 exigiere de ella parte que Ie correspond a,
    no se tendra por interrumpida la prescripcion respecto de los demas.
Articulo 1171 Lo dispuesto en los dos articulos anteriores es aplicable a los
    herederos del deudor.

454
                        TITLE    SEVEN LIMITATIONS   OF ACTIONS                                 Article 1168
    rcion                            Chapter V-Tolling            of the Statute of Limitations

                        Article 1168 The running of the statute of limitations shall be interrupted:
     goce del
                            I.       If the possessor is deprived of possession of the property or of the
                                     enjoyment of a right for more than one year;
    dicial notificada
                            II.      By the commencement of any action or proceeding where the possessor
                                     or obligor is notified.
    r Ja
                                     There is no interruption in the running of the statute oflimitations if
    ) desestimada
                                     the plaintiff subsequently waives his claim or the judicial proceeding or
                                     action is dismissed;
    mozca
    r hechos                III.     If the person who asserts adverse title or bar expressly acknowledges,
     be.                             verbally or in writing, or impliedly through unequivocal acts, the right
                                     of the person against whom the statute is running.
    I, en caso de

    se haga; si se                   The statute shall commence to run anew, in case of such
     si se hubiere                   acknowledgement, from the date it is made; and if a credit instrument is
    lesde que este                   renewed, from its new issue date, and if extended from its new due date.

                                                        SALIENT THESIS

                            ADQUISITIVE PRESCRIPTION. THERE EXISTS A TACIT
 fAAESA                     RENUNCIATION TO THAT FORM OF ADQUIRING PROPERTY, WHEN
 )SEEDOR                    THE POSSESSOR RECOGNIZES THE RIGHT OF THE OWNER, BEFORE
IE                          FILING AN USUCAPIION LAW SUIT (LEGISLATION OF THE STATE
)ELESTADO                   OF PUEBLA).-" ... when the beneficiary who has the positive prescription,
iositiva, antes             prior to requesting the declaration of usucapion to a competent judicial
usucapion                   authority, recognizes by an undoubtable fact, the right of the owner, it has to
etario, debe                be understood that he/she tacitly renounced to the prescription that he/she had
 comenzado 0                started or ... won, since the interruption established by law evidently leaves the
entemente deja              rights of the possessor without effects with respect to prescription, up until the
ion, hasta el               moment of recognition."
                            Arnparo directo 418/987. Jose Flores Toben. 14 de abril de 1988. Unanimidad
? Unanimidad                de votos. Ponente: Enrique Duenas Sarabia. Secretario: Ramon Sandoval
 Sandoval                   Hernandez. Primer Tribunal Colegiado del Sexto Circuito. Informe rendido a
me rendido a                la Suprema Corte de Justicia de la Nacion por su Presidente, Tercera Parte,
rcera Parte,                Vol. II, Mayo Ediciones, S. de RL. Mexico, 1988, p. 755.
                        Article 1169 If the running of the statute of limitations is interrupted for any reason
ie uno de los               against one of joint and several obligors, it shall be interrupted against all.
s.
                        Article 1170 If the obligee of a joint and several obligation consents to the division
I respecto de
                            of the obligation as to one of the obligors and demands of him only his
. correspond a,
                            proportional share, the running of the statute shall not be interrupted against the
nas.
                            other joint obligors.
de a los
                        Article 1171 The provisions of Articles 1169 and 1170 are applicable to the heirs of
                            the debtor.

                                                                                                            455
Mexican Civil Code Annotated                                                               TIT

  Capitulo V-De        las Obligaciones que Nacen de los Actos Ilicitos
                     (Responsabilidad Extra-Contractual)
                                                                                           Ar
Articulo 1910 El que obrando ilicitamente 0 contra las buenas costumbres cause
    dana a otro, esta obligado a repararlo, a menos que demuestre que el dana se
    produjo como consecuencia de culpa 0 negligencia inexcusable de la victima,
Articulo 1911 EI incapaz que cause dana debe repararlo, salvo que la                       Ar
    responsabilidad recaiga en las personas de el encargadas, conforme 10 dispuesto
    en los articulos 1919, 1920, 1921 Y 1922.
Articulo 1912 Cuando al ejercitar un derecho se cause dana a otro, hay obligaci6n          Ar
    de indemnizarlo si se demuestra que el derecho s610 se ejercit6 a fin de causar
    el dafio, sin utilidad para el titular del derecho.
Articulo 1913 Cuando una persona hace uso de mecanismos, instrumentos,                     AI
     aparatos 0 sustancias peligrosas por sf mismos, por la velocidad que
     desarrolIen, por su naturaleza explosiva 0 inflamable, por la energia de la
     corriente electrica que conduzcan 0 por otras causas analogas, esta obligada
    a responder del dana que cause, aunque no obre ilicitamente; a no ser que
     demuestre que ese dana se produjo por culpa 0 negligencia inexcusable de la
    victima.
Articulo 1914 Cuando sin el empleo de mecanismos, instrumentos, etc., a que se
    refiere el articulo anterior, y sin culpa 0 negligencia de ninguna de las partes, se
     producen dafios, cada una de elIas los soportara sin derecho a indemnizacion.
Articulo 1915 La reparacion del dana debe consistir, a eleccion del ofendido, en el        A
     restablecimiento de Iisituacion anterior, cuando ella sea posible, 0 en el pago
     de dafios y perjuicios.
    Cuando el dana se cause a las personas y produzca la muerte, incapacidad total
    permanente, parcial permanente, total temporal 0 parcial temporal, el grado
    de la reparacion se determinara atendiendo a 10 dispuesto por la Ley Federal
    del Trabajo. Para calcular la indemnizaci6n que corresponda se tornara como
    base el cuadruplo del salario rninimo mas alto que este en vigor en la region
    y se extendera al nurnero de dias que para cada una de las incapacidades
    mencionadas sefiala la Ley Federal del Trabajo. En caso de muerte, la
    indemnizaci6n correspondera a los herederos de la victima,
    Los creditos por indemnizaci6n, cuando la vfctima fuere un asalariado, son
    intransferibles y se cubriran preferentemente en una sola exhibicion, salvo
    convenio entre las partes.
    Las anteriores disposiciones se observaran en el caso del articulo 2647 de este
    codigo.
             TITLE   ONE ORIGINS   OF OBLIGATIONS                                        Article 1910
licitos                   Chapter V-Liabilities              From Illicit Acts (Torts)

             Article 1910 Whoever, by acting illicitly or against the good customs, causes
 cause           damage to another shall be obligated to compensate him/her, unless he/she
afio se          can prove that the damage was caused as a result of the fault or inexcusable
ictima,          negligence of the victim.

             Article 1911 If an incompetent     person causes damage, he/she is obligated to
Iispuesto        compensate   for it, unless the liability falls on those responsible for him/her in
                 accordance   with the provisions of Articles 1919 to 1922 inclusive.

ligaci6n     Article 1912 If in the exercise of a right damage is caused to another, there is
. causar         an obligation to indemnify the injured party if it is shown that the right was
                 exercised only to cause injury, without any benefit to the holder of the right.

             Article 1913 If a person employs mechanisms,       instruments, equipment or
                 substances which are inherently dangerous, because of the speed they develop,
 la              their explosive nature or inflammable characteristics,     or by the intensity ofthe
gada             electric current, or similar causes, he/she is liable for the damages or injuries
ue               they cause even though he/she is using them licitly, unless he can prove that the
: de la          damage was caused by the fault or inexcusable negligence of the victim.

             Article 1914 Ifwithout   the use of machinery, equipment, etc., as referred to in
que se            Article 1913 and without fault or negligence of either party damages are
iartes, se      . caused, each party shall bear his/her own losses, without a right of indemnity
acion,            from the other.

10, en el    Article 1915 Damages shall consist, at the election of the injured party, either
:1 pago          in the restoration of the damaged item to its previous      condition   when this is
                 possible or in the payment of the damages and loss.

 ad total        If an injury is caused to individuals and causes death or disability (either total
·ado             or partial, temporary or permanent), the amount due for reparations shall be
deral            determined by the provisions of the Federal Labor Act. In order to calculate the
como             indemnity due, the highest minimum daily wage in force in the region shall be
gi6n             multiplied by four (4), and shall extend for the number of days during which
                 the victim suffers from each of the incapacities set forth in the Federal Labor
                 Act. In the event ofthe victim's death, the indemnity shall
                                                                          ,    be paid to his/her
                 heirs.

son              If the injured party is a wage-earner,     the indemnification cannot be assigned or
vo               transferred, and it shall preferably     be paid in one lump sum, except as agreed
                 between the parties.

Ie este          The preceding provisions     shall be followed    in those cases referred to by Article
                 2647 of this Code.




                                                                                                        653
Mexican Civil Code Annotated                                                               TITJ

Articulo 1916 (Reformado      segun enmienda    publicada   en el OOF del 13 de abril de   Art
     2007)

      Por dana moral se entiende la afectacion que una persona sufre en sus
      sentimientos, afectos, creencias, decoro, honor, reputacion, vida privada,
      configuracion  y aspectos fisicos, 0 bien en la consideracion    que de si misma
      tienen los demas, Se presumira que hubo dana moral cuando se vulnere 0
      menoscabe ilegitimamente     la libertad 0 la integridad fisica 0 psiquica de las
      personas.

      Cuando un hecho u omision ilicitos produzcan un dana moral, el responsable
      del mismo tendra la obligacion de repararlo mediante una indemnizacion       en
      dinero, con independencia de que se haya causado dana material, tanto en
      responsabilidad  contractual como extracontractual.   Igual obligaci6n de reparar
      el dana moral tendra quien incurra en responsabilidad    objetiva conforme al
      articulo 1913, asi como el Estado y sus servidores publicos, conforme a los
      articulos 1927 y 1928, todos ellos del presente codigo.

      La accion de reparacion    no es transmisible a terceros por pacto entre vivos
      y solo pasa a los herederos de la victima cuando esta haya intentado la
      accion en vida.

      EI monto de la indemnizacion    10 determinara el juez tomando en cuenta los
      derechos lesionados, el grado de responsabilidad,    la situacion economica del
      responsable y la de la victima, asi como las demas circunstancias     del caso.

      Cuando el daiio moral haya afectado a la victima en su decoro, honor,
      reputacion 0 consideracion,    el juez ordenara, a peticion de esta y con cargo
      al responsable, la publicacion de un extracto de la senten cia que refleje
      adecuadamente    la naturaleza y alcance de la misma, a traves de los medios
      informativos que considere convenientes. En los casos en que el dana derive de
      un acto que haya tenido difusion en los medios informativos, el juez ordenara
      que los mismos den publicidad al extracto de la sentencia, con la misma
      relevancia que hubiere tenido la difusion original.

      DANO MORAL, DERECHO                 A LA REPARACION         DEL. SE DA EN
      FAVOR DE UNA PERSONA,               COMO CONSECUENCIA             DE UNA
      INADECUADA         ATENCION        MEDICA PRESTADA          POR UN CENTRO
      HOSPITALARIO          QUE VULNERE         0 MENOSCABE         SU INTEGRIDAD
      FiSICA 0 PSiQUICA.-En            terminos del articulo 1916 del Codigo Civil
      para el Oistrito Federal y Codigo Civil Federal, el dana moral consiste en
      la afectacion que una persona sufre en sus sentimientos, afectos, creencias,
      decoro, honor, reputacion, vida privada, configuracion     y aspectos ffsicos, 0
      bien en la consideracion   que de si misma tienen los dernas, Se presumira que
      hay dana moral, cuando se vulnere 0 menoscabe ilegftimamente         la libertad
      o la "integridad ffsica 0 psiquica" de las personas, siendo independiente el
      dafio moral, del dafio material que se cause; luego, si un centro hospitalario Ie
      presta a una persona una inadecuada atencion medica y por esa circunstancia


654
             TITLEONE ORIGINSOFOBLIGATIONS                                         Article 1916
: abril de   Article 1916 (As amended by DOF of April 13,2007)
                For moral damage it is understood the injuries inflicted upon a person's
                feelings, affections, beliefs, decorum, honor, reputation, privacy, image and
ida,            physical appearance, or how that person is perceived in the opinion of others.
mrsma           Moral damages shall be presumed when a person's freedom or hislher physical
re 0            or psychological integrity is illegitimately injured or diminished.
 de las
                If an illicit act or omission causes moral damage, the person responsible shall
                be liable to pay a monetary indemnification, independent of any other liability
isable          for material damages by virtue of a contract or extra-contractually. He/she
'n en           shall also be liable for moral damages resulting from strict liability, pursuant to
en              Article 1913, including the state and its public servants as provided by Articles
reparar         1927 and 1928 of this Code.
e al
                The cause of action for moral damage cannot be transferred to third parties and
 los
                can only be passed to the victim's heirs when the victim has filed it when he/
                she was alive.
 VIVOS
                The amount of the indemnification shall be determined by the judge taking
la
                into account the injured person's rights, the degree of liability, the economic
                situation of the responsible, and that of the victim, as well as the other
los             circumstances of the case.
1 del
                When the moral damage has injured the victim's decorum, honor, reputation
:0.
                or personal esteem, the judge shall order, at the victim's request and at the
                expense of the responsible, the publication of the judgment's summary which
go              is to adequately reflect its nature and scope, through the news media deemed
                appropriate. In case [moral] damage derives from an act that has disseminated
os              through the mass media, the judge shall order said media to publicize
rive de         the judgment's summary with the same prominence given to the original
.nara           dissemination.
                MORAL, RIGHT DAMAGE TO THE REPAIR OF. THERE HAPPENS
                IN FAVOR OF A PERSON, AS CONSEQUENCE OF INADEQUATE
                UNA MEDICAL ATTENTION GIVEN BY A HOSPITABLE CENTER
                THAT DAMAGES OR REDUCES IDS PHYSICAL OR PSYCIDC
RO              INTEGRITY.-In        terms of the article 1916 of the Civi I Code for the
DAD             Federal District and Civil Federal Code, the moral damage consists of the
                affectation that a person suffers in his feelings, affections, credence, decorum,
                honor, reputation, private life, configuration and physical aspects, or in the
s,              consideration that of yes same have the others. It will be presumed that there is
 o              moral damage, when there is damaged or reduces illegitimately the freedom or
que             the "physical or psychic integrity" of the persons, being independent the moral
d               damage, of the property damage that is caused; then, if a hospitable center
I               gives to a person an inadequate medical attention and for this circumstance is
io Ie
cia


                                                                                                  655
                                                                                        TITLE
Mexican Civil Code Annotated

    III.      Por la caida de sus arboles, cuando no sea ocasionada por fuerza mayor;       II
    IV.       Por las emanaciones de cloacas 0 depositos de materias infectantes;
    V.        Por los depositos de agua que humedezcan la pared del vecino 0
              derramen sobre la propiedad de este;                                          \
    VI.       Por el peso 0 movimiento de las maquinas, por las aglomeraciones de
              materias 0 animales nocivos a la salud, 0 por cualquier causa que sin         \
              derecho origine algun dafio.
Articulo 1933 Los jefes de familia que habiten en una casa 0 parte de ella, son
    responsables de los dafios causados por las cosas que se arrojen 0 cayeren de la    Arti:
    rrnsma.                                                                                 t
                                                                                            1:
Articulo 1934 La accion para exigir la reparacion de los dafios causados en los
    terminos del presente capitulo, prescribe en dos afios contados a partir del dia
    en que se haya causado el dafio,




662
                TITLE ONE ORIGINS   OF OBLlGA TlONS                                   Article 1932
fuerza mayor;       III.   From falling trees, if not caused by force majeure;
fectantes;          IV.    From the escape of noxious substances from drainage ditches or holding
cmo 0                      tanks;
                    v.     From water tank filtrations through the wall of the neighbor or their
.aciones de                spillage onto his property;
sa que sin          VI.    From the weight or vibration of machines, the accumulation of
                           hazardous materials or animals that are injurious to health, or from the
ella, son                  existence of any unlawful condition he creates.
cayeren de la   Article 1933 The head of a household who resides therein or occupies a part
                    thereof is liable for damages resulting from objects thrown or falling from the
os en los           building.
irtir del dfa   Article 1934 A cause of action for damages resulting from any of the acts referred
                    to in this Chapter shall be barred after two years from the date that the damage
                    occurred.
Case 9:08-cv-00200-MAC             Document 258-1       Filed 04/29/11     Page 1 of 4 PagelD #: 4673

                                                       EXHIBIT "F"
                                                       EXHIBIT "F"
                            IN THE UNITED STATES DISTRICT COURT
                                 EASTERN DISTRICT OF TEXAS
                                       LUFKIN DIVISION

 MARIA SANTOS LOPEZ DOMINGUEZ,                        §
 ET AL.,                                              §
                                                      § Civil Action No. 9:08-CV-200-TJW
            Plaintiffs,                               §
                                                      §
 v.                                                   §
                                                      §
 GULF COAST MARINE &                                  §
 ASSOCIATES, INC., ET AL.,                            §
                                                      §
            Defundanb.                                §

                   STIPULATION       OF DEFENDANTS REGARDING DISMISSAL

            COME NOW, Defendants Gulf Coast Marine & Associates, Inc., Glen Carter,

 Halliburton Energy Services, Inc., f/k/a Halliburton Company, Schlumberger Technology

 Corporation, and Matthews Daniel Company (collectively, "Defendants"), and file their

 stipulation in accordance with the Court's Memorandum Opinion and Order conditionally

 granting Defendants' Consolidated Motion to Dismiss for Forum Non Conveniens.               (Docket

 Entry 257.)

                                             STIPULATIONS

            In the event the Plaintiffs in this lawsuit re-file any of their claims arising from the

 allegations set forth in their Complaint in a Mexican court, Defendants hereby stipulate to the

 following:

            1.      Defendants agree to appear and submit themselves to the jurisdiction of a

                    Mexican federal or state court, waiving any jurisdictional defenses they might

                    normally possess.

            2.      Defendants agree to waive any statute of limitations or laches defense that they

                    did not possess as of the date this lawsuit was originally filed.


 DB 1/67142056.2
Case 9:08-cv-00200-MAC       Document 258-1 Filed 04/29/11         Page 2 of 4 PagelD #: 4674




       3.     Defendants agree to submit to discovery in the Mexican forum in accordance with

              the procedural rules of the Mexican court.

       4.     Defendants agree that they will make all relevant witnesses and documents

               available in Mexico to the extent consistent with Mexican law.

       5.      Defendants further agree that they will make any employee witness available for

              trial in Mexico to the extent consistent with Mexican law.

 Dated: April 29, 2011                       Respectfully submitted,


                                             /s/ Hugh E. Tanner
                                             Hugh E. Tanner
                                               Texas Bar No. 19637400
                                             MORGAN, LEWIS & BOCKIUS LLP
                                             1000 Louisiana St., Suite 4200
                                             Houston, TX 77002-5006
                                             Telephone: (713) 890-5000
                                             Fax: (713) 890-5001
                                             htanner@MorganLewis.com

                                             ATTORNEY-IN-CHARGE FOR DEFENDANT
                                             SCHLUMBERGER TECHNOLOGY
                                             CORPORATION


                                              /s/ Michael D. Williams"
                                              Michael D. Williams
                                                Texas Bar No. 21564330
                                              BROWN SIMS, P.C.
                                               1177 West Loop South, 10th Floor
                                              Houston, Texas 77027-9007
                                              Telephone: (713) 629-1580
                                              Facsimile: (713) 629-5027

                                              ATTORNEY-IN-CHARGE FOR DEFENDANTS
                                              GULF COAST MARINE & ASSOCIATES, INC.,
                                              AND GLEN CARTER




                                                2
Case 9:08-cv-00200-MAC       Document 258-1        Filed 04/29/11   Page 3 of 4 PagelD #: 4675




                                             lsi R. Bruce Hurley*
                                             R. Bruce Hurley
                                              State Bar No.1 0311400
                                             KING & SPALDING
                                             1100 Louisiana, Suite 3300
                                             Houston, Texas 77002-5219
                                             Telephone: 713.751.3200
                                             Fax: 713.751.3290

                                             ATTORNEY-IN-CHARGE  FOR DEFENDANT
                                             HALLIBURTON ENERGY SERVICES, INC.
                                             FIKfA HALLIBURTON CO.


                                             lsi Mark C. Clemer*
                                             Mark C. Clemer
                                              Texas Bar No. 04372300
                                             Brown Sims, P.C.
                                             1177 West Loop South, Tenth Floor
                                             Houston, Texas 77027
                                             [t] 713-629-1590
                                             [f] 713-629-5027
                                             mclemer@brownsims.com

                                             ATTORNEY-IN-CHARGE FOR DEFENDANT
                                             MATTHEWS ODANIELCOMPANY

 *Signed by Hugh E. Tanner with express permission.




                                               3
Case 9:08-cv-00200-MAC          Document 258-1       Filed 04/29/11    Page 4 of 4 PagelD #: 4676




                                   CERTIFICATE OF SERVICE

          I hereby certify that on the 29th day of April, 2011, I electronically   filed the foregoing

 with the clerk of the court by using the CMlECF system, which will send a notice of electronic

 filing to all CMlECF participants.

                                                     /s/ Hugh E. Tanner
                                                    Hugh E. Tanner




 DBI/67142056.2
                                                      EXHIBIT
                                                      EXHIBIT "G"
                                                              "G"
                                      CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ,                          §             IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND                        §
OF KAREN MARIEN ANDRADE LOPEZ,                         §
MAIRET SAMELI ANDRADE LOPEZ                            §
AND IMAR GERARDO ANDRADE LOPEZ                         §
ON BEHALF THE ESTATE OF OMAR                           §
GERARDO ANDRADE LOPEZ, ET AL                           §
                                                       §
V.                                                     §         OF HARRIS COUNTY, TEXAS
                                                       §
ARNOLD & ITKIN, L.L.P.,                                §
BECK REDDEN, L.L.P.,                                   §
ALBRITTON LAW FIRM,                                    §
KURT ARNOLD, CORY ITKIN,                               §
JASON ITKIN, RUSSELL POST,                             §
FIELDS ALEXANDER, JAS BRAR and                         §
ERIC ALBRITTON                                         §             11TH JUDICIAL DISTRICT

                             AFFIDAVIT OF DAVID ERIC KASSAB

STATE OF TEXAS                   §
                                 §
COUNTY OF HARRIS                 §

       BEFORE ME, the undersigned authority, on this day personally appeared David Eric
Kassab who, being by me duly sworn, deposed as follows:

       "My      name is David Eric Kassab. I am of sound mind, over the age of eighteen
       (18)    years, capable of making this affidavit and personally acquainted with the
       facts    herein stated and they are true and correct. The opinions contained herein, if
       any,    are based upon my experience, training and education as an attorney and are
       held    to a reasonable degree of legal probability.

       I am an attorney licensed to practice law in the State of Texas. I have been
       licensed to practice law by the State of Texas since 2010 and I am in good
       standing. I am a lawyer at the Law Offices of Lance Christopher Kassab, P.C.
       d/b/a The Kassab Law Firm, which has been retained to represent Plaintiffs in the
       above-entitled case. I am an attorney of record for the Plaintiffs in this case and
       have been very active in all aspects of this case. In representing Plaintiffs in this
       case, I have obtained documents from the underlying action Civil Action No.
       9:08-cv-200; Maria Santos Lopez Dominguez, et al., v. Gulf Coast Marine &
       Associates, Inc. et at; In the United States District Court for the Eastern District of
       Texas Lufkin Division (the "underlying case").




AFFIDAVIT OF DAVID ERIC KASSAB                                                             PAGE10F2
       Attached to Plaintiffs' Response to All Defendants Plea to the Jurisdiction, and, in
       the Alternative, Plea in Abatement (the "Response") as Exhibit "A" is a true and
       correct copy of the April 20, 2011 Memorandum Opinion and Order from Judge
       T. John Ward which my office obtained from the official governmental website
       PACER (Public Access to Court Electronic Records).

       Attached to Plaintiffs' Response as Exhibit "B" is a true and correct copy of the
       May 14,2014 Memorandum and Order from Judge Marcia A. Crone which my
       office obtained from the official governmental website PACER (Public Access to
       Court Electronic Records).

       Attached to Plaintiffs' Response as Exhibit "C" is a true and correct copy of the
       Law Review Article Moral Damages in Mexican Law: A Comparative Approach
       which my office obtained from online legal resources.

       Attached to Plaintiffs' Response as Exhibit "D" is a true and correct copy of an
       October 3, 2014 letter sent from Arnold & Itkin, LLP to one of the Plaintiffs in
       this lawsuit which I obtained from my client in this case.

       Attached to Plaintiffs' Response as Exhibit "E" are true and correct copies of the
       relevant sections of the Mexican Civil Code Annotated (Bilingual Edition)
       authored by Professor Jorge A. Vargas of the San Diego School of Law.

       Attached to Plaintiffs' Response as Exhibit "F" is a true and correct copy of the
       Stipulation of Defendants Regarding Dismissal filed by the defendants in the
       underlying case which my office obtained from the official governmental website
       PACER (Public Access to Court Electronic Records).

       I am one of the custodians of records for The Kassab Law Finn and I have care,
       custody and control of the records and litigation files maintained in this case. The
       Exhibits attached to the Response are kept in the regular course of business of The
       Kassab Law Firm and maintained by The Kassab Law Firm on behalf of Plaintiff
       as during the course of this litigation.

Further, Affiant saith not."




SWORN TO AND SUBSCRIBED before me on the 12th day of Augu:u--.~~ ..




AFFIDAVIT OF DAVID ERIC KASSAB                                                          PAGE20F2
                                    CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ,                        §            IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND                      §
OF KAREN MARIEN ANDRADE LOPEZ,                       §
MAIRET SAMELI ANDRADE LOPEZ                          §
AND IMAR GERARDO ANDRADE LOPEZ                       §
ON BEHALF THE ESTATE OF OMAR                         §
GERARDO ANDRADE LOPEZ, ET AL                         §
                                                     §
V.                                                   §        OF HARRIS COUNTY, TEXAS
                                                     §
ARNOLD & ITKIN, L.L.P.,                              §
BECK REDDEN, L.L.P.,                                 §
ALBRITTON LAW FIRM,                                  §
KURT ARNOLD, CORY ITKIN,                             §
JASON ITKIN, RUSSELL POST,                           §
FIELDS ALEXANDER, JAS BRAR and                       §
ERIC ALBRITTON                                       §           11TH JUDICIAL DISTRICT

          ORDER DENYING DEFENDANTS’ PLEA TO THE JURISDICTION
                       AND PLEA IN ABATEMENT

       On this day came on to be considered the Plea to the Jurisdiction, and, in the Alternative,

Plea in Abatement of Defendants, ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P.,

ALBRITTON LAW FIRM, KURT ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL

POST, FIELDS ALEXANDER, JAS BRAR AND ERIC ALBRITTON, and Plaintiff’s

Response to All Defendants’ Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement,

and the Court, after considering same and hearing argument of counsel is of the opinion that said

motion and pleas should be denied, and it is, therefore

       Ordered that all Pleas to the Jurisdiction and all Pleas in Abatement of Defendants,

ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P., ALBRITTON LAW FIRM, KURT

ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS ALEXANDER, JAS

BRAR AND ERIC ALBRITTON, are hereby denied in their entirety.
Signed this _____ day of ________________________, 2015.



                          _____________________
                          Judge Mike Miller
Appendix Tab 3
                                             CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ,                                       §     IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT FRIEND                                     §
OF KAREN MARIEN ANDRADE LOPEZ,                                      §
MAIRET SAMELI ANDRADE LOPEZ                                         §
AND IMAR GERARDO ANDRADE LOPEZ                                      §
ON BEHALF THE ESTATE OF OMAR                                        §
GERARDO ANDRADE LOPEZ, ET AL                                        §
                                                                    §
V.                                                                  §   OF HARRIS COUNTY, TEXAS
                                                                    §
ARNOLD & ITKIN, L.L.P.,                                             §
BECK REDDEN, L.L.P.,                                                §
ALBRITTON LAW FIRM,                                                 §
KURT ARNOLD, CORY ITKIN,                                            §
JASON ITKIN, RUSSELL POST,                                          §
FIELDS ALEXANDER, JAS BRAR and                                      §
ERIC ALBRITTON                                                      §     11TH JUDICIAL DISTRICT

            PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE
          JURISDICTION, AND, IN THE ALTERNATIVE, PLEA IN ABATEMENT
TO THE HONORABLE JUDGE MIKE MILLER:

         COME NOW Plaintiffs, Maria Santos Lopez Dominguez, et al., and files this, their Sur-

Reply to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement, and

would respectfully show as follows:

                                                       I
                                                 INTRODUCTION

         Only “some injury” needs to be shown for Plaintiffs’ claims to be ripe. See Vanderweyst

v. Boudreaux, No. 01-02-00928-CV, 2003 Tex. App. LEXIS 8549, 2003 WL 22255833, at *4

(Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.); In re Marriage of Pyrtle,

433 S.W.3d 152, 164 (Tex. App.—Dallas 2014, pet. denied). Defendants do not dispute that, had

the forum non conveniens motion been denied in the underlying case, Plaintiffs, at minimum,

could have pursued their Mexican law claims in the United States. Plaintiffs contend that, due to

Defendants’ negligence, the underlying court granted the forum non conveniens motion and

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 1 OF 28
required Plaintiffs to file their claims in Mexico, where, even if the claims are not barred, they

are now faced with virtually non-existent discovery, no procedural protections, extensive delays

to any resolution and the unlikelihood of any attorney taking their case. The lost benefit of

pursuing their claims in a United States court is at least some “concrete injury” which has already

occurred and is not contingent on any future event, thereby rendering these claims ripe. See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-*15 (lost opportunity found to constitute

injury sufficient to demonstrate ripeness even if other damages were speculative, holding “[t]he

loss of that benefit, whatever it may ultimately be determined to be worth, constitutes the first of

[the plaintiff’s] pled injuries.”).

         Further, the underlying proceedings have clearly been concluded. Plaintiffs’ United

States case has been dismissed. While the Jones Act claims were dismissed without prejudice,

they were dismissed on September 20, 2010. The entire United States case was then dismissed

on April 20, 2011. Plaintiffs cannot re-file their Jones Act claims because they are now barred by

limitations. The dismissal of the Jones Act claims is not an “interlocutory order” as Defendants

contend, but is a final judgment because the claims may not be refiled. And, because Defendants’

refused to timely pursue these claims in Mexico, the “return jurisdiction” clause is inapplicable.

Accordingly, Plaintiffs’ claims are barred by limitations in both Mexico and the United States.

This may be proven through expert testimony and Plaintiffs are not required to re-file clearly

barred claims to litigate this malpractice case. Alexander v. Turtur & Assocs., 146 S.W.3d 113,

122 (Tex. 2004)(client proves what court would have done under different circumstances by way

of expert testimony); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied)(client filed lawsuit against attorney without first filing the underlying product liability

suit); Garcia v. Boyar & Miller, P.C., 2007 U.S. Dist. LEXIS 63432 (N.D. Tex. Aug. 28,



PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 2 OF 28
2007)(client not required to exhaust administrative remedies prior to suing attorney); Mayer v.

Biafore, Florek & O'Neill, 245 Conn. 88, 89 (Conn. 1998)(“because the trier of fact hearing the

plaintiff's malpractice case must determine … whether [the underlying] action is time barred,

there is no need for a prior determination that the statute of limitations has run as a condition

precedent to the plaintiff pursuing this case.”).

                                             II
                            SUR-REPLY TO DEFENDANTS’ ARGUMENTS

           A.      RIPENESS STANDARD AND REVIEW.

           A claim is ripe for review if the pleadings demonstrate at least some injury – no matter

how slight. See Vanderweyst, 2003 Tex. App. LEXIS 8549, at *4 (fact that amount of damages

was not yet determined at time of filing did not make plaintiff's claims unripe where record

showed “some injury” to plaintiff at that time). In addition, a claim is ripe if the pleadings

demonstrate that further injury is merely “likely to occur.” Robinson v. Parker, 353 S.W.3d 753,

755 (Tex. 2011). In making its determination, the Court is required to construe the pleadings in

the Plaintiffs’ favor. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). More importantly, the Court must overrule the motion unless Defendants’ evidence

clearly demonstrates that the Court lacks jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000). Generally, no order on a plea to the jurisdiction filed by a party

other than a governmental unit may be appealed before final judgment. TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(8); Prada de Portugal v. Prada, 2005 Tex. App. LEXIS 192, at *5 (Tex.App.

– San Antonio Jan. 12, 2005, no pet.)(“an appellate court will not entertain an interlocutory

appeal from a court’s denial of a plea to the jurisdiction unless it relates to a governmental

unit.”).




PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 3 OF 28
           B.      PLAINTIFFS’ CLAIMS ARE RIPE BECAUSE PLAINTIFFS HAVE SUFFERED AT
                   LEAST SOME INJURY CAUSED BY DEFENDANTS’ CONDUCT.

           Defendants contend that “there obviously has not been any final outcome in the

underlying case, so any malpractice lawsuit relating to how the attorneys handled the venue

arguments is premature, and must be either dismissed or abated.”1 Yet, the underlying United

States case was dismissed with Judge Ward’s April 20, 2011 order dismissing the case on forum

non conveniens grounds.2 In the Fifth Circuit, “[d]ismissals for forum non conveniens … have

been considered final and appealable by right.” Koke v. Phillips Petroleum Co., 730 F.2d 211,

214 (5th Cir. Tex. 1984) (emphasis added); See also Vinson v. Am. Bureau of Shipping, 318

S.W.3d 34, 41 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)(noting that “dismissal of a

case on grounds of forum non conveniens is deemed a final judgment appealable . . . even though

it does not end the litigation.”). In fact, Defendants appealed the prior final dismissal entered by

Judge Clark on May 29, 2009 on forum non conveniens grounds, but the case was remanded to

allow Judge Ward to indicate to the Court of Appeals whether he was inclined to vacate Judge

Clark’s dismissal of this case in light of Judge Clark’s subsequent recusal. See Dominguez v.

Gulf Coast Marine & Assocs., 607 F.3d 1066, 1076 (5th Cir. Tex. 2010). The “conditions”

placed on the dismissal are immaterial to creating finality. See Id. at 1072, n. 3 (“this Court has

held that conditional forum non conveniens dismissals are final, despite the fact that the orders

may literally appear to have more typically nonfinal characteristics because they are

conditional.”)(internal quotations omitted).

           It is undisputed that, had the forum non conveniens motion been decided differently,

Plaintiffs would have, at bare minimum, been permitted to pursue their Mexican law or general

maritime tort law claims in the United States because these claims were not pre-empted by the


1
    See ARNOLD & ITKIN REPLY, at p. 6.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 4 OF 28
Jones Act. Lorenzana v. Gulf Coast Marine & Assocs., 2010 U.S. Dist. LEXIS 99356, at *15

(E.D. Tex. Sept. 20, 2010); Stier v. Reading & Bates Corp., 992 S.W.2d 423, 434 (Tex. 1999).

Thus, the “injury” caused by Defendants’ failure to assert the proper evidence and argument in

response to the forum non conveniens motion or, alternatively, timely appeal the dismissal is

having to spend time and effort in exhausting their remedies in Mexico which, according to

Plaintiffs’ experts, will be futile.3

         The underlying defendants stipulated that they would “agree to submit to discovery in the

Mexican forum in accordance with the procedural rules of the Mexican court” and make “all

witnesses and documents available in Mexico to the extent consistent with Mexican law.”4 As

a result of Defendants’ negligence, Plaintiffs are now required to pursue their claims in Mexico

according to these stipulations. Even if Plaintiffs’ claims are not barred in Mexico and a Mexican

court would accept jurisdiction (which they would not), then Plaintiffs have still suffered a

“concrete” injury that is not contingent on any future events because the courts in Mexico

provide for very limited discovery and do not afford Plaintiffs with procedural safeguards, which

will undoubtedly hinder Plaintiffs’ ability to pursue these claims.5

         To demonstrate this point, Plaintiffs have attached the joint affidavit of Mexican attorney

and conflicts of law professor, Aranau Muria and professor of Mexican law, Henry Saint Dahl,

two Mexican law experts. Mr. Muria and Mr. Dahl opine that “Mexico has no discovery and no

depositions.”6 When filing the lawsuit, the plaintiff “has to produce all the documentary

evidence, and without discovery” and “Mexican law is very clear in the sense that documents



2
  See PLAINTIFFS’ RESPONSE, at Exhibit “A”.
3
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
4
  See PLAINTIFFS’ RESPONSE, at Exhibit “F”, p. 2 (emphasis added).
5
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10-11.
6
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 5 OF 28
found after the lawsuit is filed, are inadmissible[.]”7 Witness testimony must take place in open

court and “[a] party can only present up to five witnesses for each fact…”8 “This means that, in a

case where plaintiff needs to prove some type of engineering malfunctioning, for instance if a

valve failed to operate as intended to, and the defendants are in the U.S., the support afforded by

Mexican evidentiary rules is close to zero.”9 Simply put, “Mexican law completely rejects any

American type of discovery.”10 The lack of these procedural safeguards and ability to conduct

discovery that would have been available to them in the United States is at least some concrete

“injury” that is not contingent on any further hypothetical or undeveloped facts.

         In Vanderweyst v. Boudreaux, supra, the Houston Court of Appeals held that a damages

claim, though speculative, was “fodder for a summary judgment motion, not a dismissal for lack

of ripeness in a plea to the [trial court's] jurisdiction.” Vanderweyst, 2003 Tex. App. LEXIS

8549, at *14-15. There, the plaintiff sued the defendant for her lost opportunity to execute a

judgment against Nationwide. Id. at *13. The defendant filed a plea to the jurisdiction based on

ripeness, asserting that the trial court lacked subject matter jurisdiction over the plaintiff’s claims

because Nationwide had appealed the judgment obtained by the plaintiff and because the “appeal

was still pending, judgment had not been rendered on the bond.” Id. at *5-6. Further, defendants

alleged that, even if [the plaintiff] had a right to collect on the judgment today, and Nationwide

could not satisfy the judgment, [the plaintiff] has never attempted to collect on the supersedeas

bond, nor does she allege.” Id. at *6. Thus the defendants argued, similar to Defendants in this

case, that plaintiff’s claims were “premature because it is possible that she will not prevail on




7
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10.
8
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11.
9
  Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11.
10
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 6 OF 28
appeal, or if she does prevail, it is possible she may recover on the bond.” Id. The trial court

granted the plea to the jurisdiction and the client appealed. Id. at *7.

         The First Court of Appeals reversed and remanded the case. Id. at *13. The court found

that the plaintiff’s “lost opportunity” to immediately execute on the judgment against Nationwide

was at least some injury caused to the plaintiff regardless of whether said injuries were merely

hypothetical or still undetermined. Id. at *14 (“The loss of that benefit, whatever it may

ultimately be determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”). The

Houston Court of Appeals noted that even if the damages were speculative, that issue was more

appropriately obtained by way of summary judgment, not a motion to dismiss. Id. Accordingly,

the Houston Court of Appeals allowed the claim to proceed even without the underlying

litigation to reach a conclusion. See Id.

         The Northern District of Texas case Garcia v. Boyar & Miller, P.C., 2007 U.S. Dist.

LEXIS 63432 (N.D. Tex. Aug. 28, 2007) is also instructive. In Garcia, the clients,

undocumented workers, sued their attorneys Boyar & Miller after they failed to file timely

immigration applications. Id. at *3. In response, Boyar & Miller filed a motion to dismiss

arguing, like Defendants herein, that the clients’ claims were not ripe because they had not

exhausted their future administrative remedies and that the applications may be accepted. Id.

More specifically, Boyar & Miller argued that the clients’ claims were “based on speculative

future events and therefore are not ripe” because “they [were] based on the assumption that their

[a]pplications will be denied solely on the ground that they are untimely…” Id. at *14-*15. Thus,

Boyer & Miller contended that the clients had “not exhausted their administrative remedies in an

attempt to adjust their status” and that, should the clients appeal the decision, a “reviewing court




PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                          PAGE 7 OF 28
may conclude that the [a]pplications were timely” and therefore, the clients’ malpractice claims

were not ripe. Id. at *15.

         In response, the clients in Garcia contended that their malpractice claims were ripe and

not hypothetical because, notwithstanding what any administrative agency or reviewing court

may conclude, as a result of Boyer & Miller’s conduct “there is very little likelihood that [they]

will ever obtain permanent residency or United States citizenship, [they] can expect to be

deported, and [they] must begin the application process anew, facing the long delays and

improbabilities that accompany the process.” Id. at *18 (emphasis added). The Garcia court

rejected Boyer & Miller’s ripeness and failure-to-appeal argument, stating “plaintiffs have

alleged that they will be unable to cure insuperable impediments to obtaining lawful

permanent residency through the administrative process, except by remaining outside the United

States for ten years and initiating the adjustment process anew.” Id. at *20-*21. Thus, the delay

caused to the clients was sufficient to demonstrate ripeness of clients’ claims. Id.

         Just as the plaintiff in Vanderweyst, Plaintiffs’ have lost the benefit and opportunity to

pursue their claims in the United States in a timely fashion. “The loss of that benefit, whatever it

may ultimately be determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14. Moreover, similar to the clients in Garcia,

Plaintiffs will suffer long delays in the resolution of these claims in Mexico, if any, and the

“improbabilities that accompany the process” of refiling the claims in Mexico or proving their

claims through Mexican discovery rules. Garcia, 2007 U.S. Dist. LEXIS 63432 at *20-21.

         Caselaw outside Texas on ripeness of legal malpractice claims is consistent with the

Texas law cited by Plaintiffs’ herein. For instance, the Connecticut Supreme Court case Mayer v.

Biafore, Florek & O'Neill, 245 Conn. 88, 89 (Conn. 1998) is directly on point and supports



PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 8 OF 28
Plaintiffs’ common-sense argument that one does not need to file clearly barred underlying

claims prior to instituting a malpractice case. The sole issue in Mayer was nearly identical to the

issue at hand: whether the plaintiff “must obtain a judicial determination that the statute of

limitations bars his claim for uninsured motorist benefits before he can bring th[e] legal

malpractice action against the [the defendant lawyers].” Id. at 89. The court echoed Plaintiffs’

contentions in this case: “there is no need for a prior determination that the statute of limitations

has run as a condition precedent to the plaintiff pursuing th[e] case.” Id. at 93.

         In Mayer, the client sued the lawyers alleging that they failed to file an action against his

automobile insurance carrier, Aetna, for uninsured motorist benefits. Id. The lawyers, like

Defendants in this case, argued that the claims were not ripe because, if the client continued to

pursue the underlying claim, “he still might prevail in an action against Aetna for uninsured

motorist benefits.” Id. at 90. More specifically, the lawyers asserted the same “we don’t know

what a court will do” argument that the Defendants argue herein:

         [T]he defendants argue that Aetna may choose not to raise the statute of
         limitations as an affirmative defense. Therefore, they contend that until a court
         determines, after the statute of limitations defense is asserted by Aetna, that the
         statute of limitations has run, the plaintiff's malpractice action against the
         defendants is not ripe for adjudication.

Id. at 91. The trial court granted the motion and the appellate court affirmed concluding that

“because the plaintiff’s claim against Aetna has not been adjudicated, and consequently no

determination has been made that the plaintiff is time barred from pursuing his claim against

Aetna, no actual controversy exists between the parties in this dispute.” Id.

         In reversing the trial court and the court of appeals, the Connecticut Supreme Court held

that an “antecedent determination by a court that the plaintiff’s uninsured motorist action against




PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                          PAGE 9 OF 28
Aetna is time barred is unnecessary…” Id. Through well-reasoned analysis equally applicable to

this case, the Mayer court explained:

         The fact that the defendants contest the issues of causation and damages does not
         require the plaintiff first to file an action against Aetna. Merely because the issues
         in this case concern claims between a party and a nonparty does not require such
         an action. To require the plaintiff to obtain a separate ruling that his uninsured
         motorist action is time barred does not further judicial economy… All legal
         malpractice cases are based on underlying rights, for which the plaintiff originally
         sought legal representation. To require that the underlying dispute as to those
         rights, in all cases, must be completely resolved prior to bringing a malpractice
         action would unduly restrict the plaintiff's remedy against the allegedly negligent
         lawyer. Here, because the trier of fact hearing the plaintiff's malpractice case
         must determine, on the basis of proper instructions as to the law [i.e. expert
         testimony], whether an uninsured motorist action is time barred, there is no
         need for a prior determination that the statute of limitations has run as a
         condition precedent to the plaintiff pursuing this case.

Id. at 92 (emphasis added). Thus, the Mayer court rejected the ripeness contentions and reversed

the lower courts. Id.

         The same rationale applies to this case. Defendants argue, without citing a single

Mexican legal authority, that the present claims are not ripe because Plaintiffs may still be able

to file their claims in Mexico and there has been no determination that the claims are actually

barred by limitations. Yet, Plaintiffs contend that these claims may not be refiled in Mexico due

to the negligence of Defendants because, among other things, the claims are barred by

limitations. Consistent with Mayer, “the trier of fact hearing the plaintiff's malpractice case must

determine,” supported by the proper expert testimony, “whether [the underlying] action is time

barred, [and] there is no need for a prior determination that the statute of limitations has run as a

condition precedent to the [Plaintiffs] pursuing this case.” Id.; See also Finch v. Tooher,Wocl &

Leydon, LLC, 2010 U.S. Dist. LEXIS 136958, at *3 (D. Conn. Dec. 28, 2010)(client’s

malpractice case against lawyer was ripe even while underlying suit was still pending, noting

that “[a]lthough the resolution of the [underlying case] may have an impact on the quantity of


PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                           PAGE 10 OF 28
damages [the client] may be able to recover from the firm, this suit is nevertheless still ripe for

review now.”); Augman v. Colwart, 874 So. 2d 191, 194 (La.App. 1 Cir. Feb. 23, 2004)(client’s

claim against attorney was ripe even though underlying case had not yet gone to trial); In re

Street, 283 B.R. 775, 777 (Bankr. D. Ariz. 2002)(client’s claim against lawyer for failing to

properly prepare deed of trust was ripe even though a separate lawsuit relating to the

appropriateness of the deed of trust was pending because client incurred costs in remedying

lawyers’ errors); Schaeffer v. Kessler, Civ. No. 12-8576 PKC, 2013 U.S. Dist. LEXIS 38781,

2013 WL 1155587, at *11 (S.D.N.Y. March 20, 2013)(legal malpractice claim against attorney

for drafting fraudulent contracts was “ripe for adjudication” even though attorney had filed suit

to enforce those contracts because and “even if not all of the possible damages resulting from his

alleged malpractice have materialized.”).

         Legal malpractice cases are unique in the ripeness context because they necessarily

require the fact finder to consider a hypothetical set of facts to establish causation. See

Alexander, 146 S.W.3d at 122 (requiring fact finder to decide what a judge would have decided

in the underlying case under hypothetical circumstances). “[B]ecause of the backward-looking

nature of a legal malpractice claim, the question [of causation] is posed in a merely hypothetical

sense…” Wonders v. Johnson, 2013 Tex. App. LEXIS 8750 (Tex.App. – Houston [1st Dist.] July

16, 2013, no pet.)(citing Gunn v. Minton, 133 S. Ct. 1059, 1068 (U.S. 2013)). With causation in a

legal malpractice case “posed in a merely hypothetical sense”, Plaintiffs may demonstrate what

would have happened had their underlying claims been properly prosecuted through expert

testimony. Alexander, 146 S.W.3d at 122. Indeed, as noted by the Texas Supreme Court in

Alexander, it is this very expert testimony that converts proximate causation in a malpractice

case from mere speculation to reasonable legal probability. See Id. at 120 (“without competent



PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 11 OF 28
expert testimony in a trial malpractice case demonstrating that the result of the underlying

proceeding would have been different but for the alleged negligence, the factfinder would be

compelled to speculate as to proximate causation.”)(internal quotations omitted).Plaintiffs’

claims in this case became ripe when the case was dismissed from the United States thereby

subjecting Plaintiffs’ to the detriments of a Mexican court11 and, further, after Defendants failed

to prosecute Plaintiffs’ Mexico cases diligently and in good faith thereby causing the statutes of

limitations to lapse on Plaintiffs’ Mexico claims.12 See Vanderweyst, 2003 Tex. App. LEXIS

8549, at *4. Simply put, Plaintiffs’ have alleged some injury – their lost benefit – which is

already established and concrete and Plaintiffs are not required to re-file clearly barred claims in

Mexico.13 See Id. at *14; Garcia, 2007 U.S. Dist. LEXIS 63432 at *20-21; Mayer, 245 Conn. at

89.

         C.        THE LOSS OF PLAINTIFFS’ JONES ACT AND GENERAL MARITIME CLAIMS
                   CONSTITUTE FURTHER INJURY.

         As discussed above, the dismissal of Plaintiffs’ Jones Act claims was not interlocutory; it

was final when the entire United States lawsuit was dismissed. This final dismissal of Plaintiffs’

United States lawsuit caused the loss of their Jones Act and general maritime law claims.

Defendants contend that Plaintiffs’ damages relating to the loss of these claims does not

constitute injury because (1) the claims were dismissed without prejudice and may be refiled

pursuant to the “return jurisdiction” clause should a Mexico court decline jurisdiction; and (2)

the Jones Act claims are inapplicable to Plaintiffs – Mexican nationals – because Plaintiffs have

a remedy under Mexican law.14 Both arguments are unavailing.



11
   See, generally, Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
12
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 12-13.
13
   See, generally, Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
14
   ARNOLD & ITKIN REPLY, at p. 9-10.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 12 OF 28
         First, Plaintiffs cannot now file their case in Mexico.15 While Plaintiffs’ pleadings are

sufficient to demonstrate this fact, Plaintiffs have retained Mr. Dahl and Mr. Muria, the two

aforementioned Mexican law experts, to shed further light on this subject.16 Mr. Dahl is licensed

and has been admitted to practice law in Texas, New York, Washington, D.C., Buenos Aires,

Argentina and Madrid, Spain.17 Mr. Dahl holds a J.D. and an LL.D. degree from Buenos Aires

University, an L.L.M. from London University and is an expert in the field of comparative law. 18

Although Mr. Dahl is not licensed in Mexico, he was an adjunct professor of Mexican law at

SMU school of Law and since 1993 has undertaken a “deep and continuous study of how [forum

non conveniens] interacts with legal systems in Latin America, including Mexico…”19 As the

Secretary General of the Inter-American Bar Association and General Editor of its Law Review,

Mr. Dahl has consulted with and studied among Mexican Bars and Mexican attorneys on a

variety of issues of Mexican law.20 Mr. Dahl supports his opinions in the joint affidavit through

testimony from Mr. Muria, a practicing Mexican attorney and law professor at the University of

Guadalajara who teaches, among other subjects, conflict of laws.21

         It is Mr. Dahl and Mr. Muria’s opinion that Mexico would not accept jurisdiction of this

case.22 It is Mr. Dahl and Mr. Muria’s further opinion that, due to Defendants’ delay, any

opportunity for Plaintiffs to refile these claims in Mexico has now passed and the claims are

barred by limitations.23 This is one of the reasons why a Mexico court would not accept




15
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
16
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1.
17
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1.
18
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1.
19
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1.
20
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1.
21
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 2.
22
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 4-10.
23
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11-13.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                      PAGE 13 OF 28
jurisdiction of these claims even if they were to be refiled.24 Moreover, the “return jurisdiction”

clause does not then permit Plaintiffs to refile the case in the United States because Judge Ward

conditioned the continued jurisdiction on Defendants’ good faith effort to prosecute the cases in

Mexico:

         Should the courts of Mexico refuse to accept jurisdiction of any of these cases for
         reasons other than Plaintiffs’ refusal to pursue an action or to comply with the
         procedural requirement of Mexican courts, this Court may reassert jurisdiction
         upon timely notification of the same.25

Plaintiffs contend in their pleadings (and as supported by the affidavit of Mr. Dahl and Mr.

Muria) that the Defendants’ “refusal to pursue the action” in Mexico caused the claims to be

forever barred in Mexico by limitations.26 At this stage, the Court must take these allegations as

true unless Defendants can conclusively rebut them and show that, even on the face of the

pleadings, the court is deprived of jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53,

56 (Tex. App. – Houston [14th Dist.] 2005, no pet.). Defendants’ have failed to do so and their

conclusory, self-serving and unsupported arguments that the claims are not barred in Mexico or

that a federal court will still accept jurisdiction despite their own lack of diligence are conclusory

and unmeritorious.

         With the Jones Act and general maritime claims clearly barred to refiling, the issue

becomes whether they would have been successful. In their petition, Plaintiffs allege that the

Defendants “failed to allege that there was no available remedy in Mexico, as required to pursue a

federal maritime claim under the Jones Act.”27 These allegations must be taken as true. Davies, 158

S.W.3d at 56. Defendants argue in their Reply that Plaintiffs have not suffered an injury because



24
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
25
   See PLAINTIFFS’ RESPONSE, at Exhibit A, p. 27 (emphasis added).
26
   See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.
27
   See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                          PAGE 14 OF 28
Plaintiffs allegedly have a remedy under Mexican law and, if they do not, Plaintiffs may refile

these claims in federal court.28 This argument ignores the reality of the situation.

         It is Plaintiffs’ contention as set forth in the pleadings that they have no remedy in

Mexico.29 This contention is supported by the opinions of Mr. Dahl and Mr. Muria, experts in

this field.30 Even if a Mexico court rejects jurisdiction, Plaintiffs could not refile their Jones Act

and maritime claims in the district court because these claims were finally dismissed on April 20,

2011 when Judge Ward entered the order dismissing the case on forum non conveniens grounds.

See Koke, 730 F.2d at 214. “The pertinent statutes of limitations provide that claims under the

Jones Act and general maritime law are time-barred unless commenced within three years from

the day the cause of action accrued.” Jones v. Tidewater Marine LLC, 262 Fed. Appx. 646, 648

(5th Cir. La. 2008)(internal quotations omitted). Thus, even taking the April 20, 2011 dismissal

date as the date when limitations would begin accruing, Plaintiffs’ Jones Act and general

maritime law claims were barred by April 20, 2014. See Id.

         The wavier of limitations executed by Defendants is immaterial and did not act to toll

these claims. First, the underlying defendants only agreed to waive limitations in the event that

Plaintiffs refiled the case in Mexico, not the United States.31 Moreover, this waiver of limitations

would be invalid under Texas and federal law because it was not specific and did not provide for

a pre-determined length of time. See Hoff v. Texas Med. Liab. Trust, 1998 Tex. App. LEXIS

2219, at *8 (Tex.App. – Austin Apr. 16, 1998, pet. denied)(affirming summary judgment in

medical malpractice case on statute of limitations ground because a waiver of limitations was

void as against public policy because it was not specific and did not provide for a pre-determined


28
   ARNOLD & ITKIN REPLY, at p. 10.
29
   See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.
30
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
31
   See PLAINTIFFS’ RESPONSE, at Exhibit F, p. 1-2.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                          PAGE 15 OF 28
length of time). Plaintiffs’ pleadings, which must be taken as true, are sufficient to demonstrate

this fact and, even if the damages alleged are speculative, this is “fodder for a summary judgment

motion, not a dismissal for lack of ripeness in a plea to the [trial court's] jurisdiction.”

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15.

         D.        PLAINTIFFS’ PLEADINGS DEMONSTRATE THAT, HAD SUFFICIENT
                   ARGUMENT AND EVIDENCE BEEN PRESENTED IN RESPONSE TO THE
                   FORUM NON CONVENIENS MOTION, THE OUTCOME WOULD HAVE BEEN
                   DIFFERENT.

         Plaintiffs allege that, had certain substantive argument and evidence been presented to the

underlying court in response to the forum non conveniens motion, the Eastern District of Texas

federal court would not have granted the forum non conveniens motion and allowed, at

minimum, Plaintiffs’ Mexico claims to proceed.32 In fact, the Eastern District of Texas did rule

differently under similar circumstances when the proper evidence, expert testimony and

argument were presented. Sacks v. Four Seasons Hotel Ltd., 2006 U.S. Dist. LEXIS 17768 (E.D.

Tex. Mar. 7, 2006).33 Nonetheless, Defendants argue the Sacks opinion is immaterial because the

Mexican law experts in Sacks, including one of Plaintiffs’ experts in this case, Mr. Dahl, were

allegedly “discredited, and, in the end, were not relied upon by the court.”34 This statement is

completely inaccurate and false.

         After the court in Sacks denied the defendants forum non conveniens motion, the

defendants requested the court to reconsider its decision, arguing that one of the plaintiffs’

experts, Mr. Pereznieto, should be discredited due to alleged fraud in a separate proceeding.35

The defendants also argued that the opinions of Mr. Dahl, who was a second expert for the


32
   PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.
33
   This is the same court that granted the motion and dismissed the underlying case because Defendants failed to
make these arguments.
34
   ARNOLD & ITKIN REPLY, at p. 14.
35
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 12.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                       PAGE 16 OF 28
plaintiffs in Sacks, should likewise be discredited because his affidavit was influenced by the

opinions of Mr. Pereznieto.36 Although the Magistrate Judge was not convinced that Mr.

Pereznieto’s alleged fraud in another case necessitated complete disregard of his opinions, the

Magistrate did so out of an abundance of caution.37 However, despite Defendants’ contentions in

their Reply, the Magistrate considered the expert opinion from Mr. Dahl reliable.38

         Specifically, the Magistrate stated “the Court is not convinced Dahl’s opinions, as an

independent expert on Mexican law, are inextricably linked to Pereznieto’s fraud in the Indiana

case as to invalidate Dahl’s opinions in this case.”39 Thus, the Magistrate Judge specifically

considered Mr. Dahl’s opinions, including (1) that the effect of forum non conveniens violates

Mexican law; (2) how after a case is filed in the United States, Mexican jurisdiction is

preempted; (3) how procedural rights that may be subject to negotiation in the United States

cannot be agreed to by the parties in Mexico; and (4) the lack of jurisdiction over non-residents

in Mexico.40 Mr. Dahl’s opinions provided in this case are consistent with those he provided in

Sacks but are further supported by Mr. Muria, a Mexican attorney and law professor. Thus, the

Magistrate found that Mr. “Dahl’s affidavit provide[d] adequate support for the Court’s

conclusion regarding the lack of an available forum in Mexico.”41

         Having considered Mr. Dahl’s affidavit, the Magistrate found that Mexico was not an

available forum because the claims were barred by limitations and the “tolling statute only

applies to lawsuits filed within the territories of Mexico.”42 The Magistrate also relied upon Mr.

Dahl’s affidavit to conclude that “stipulations made before a United States court to waive the


36
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13.
37
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13.
38
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13.
39
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13.
40
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13-14.
41
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 14.
42
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 14.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                      PAGE 17 OF 28
Mexican statute of limitations are meaningless in Mexico.”43 The Magistrate, citing further to

Mr. Dahl’s affidavit, also found Mexico to be an unavailable forum because Mexico cannot

accept jurisdiction “no matter how adamantly Defendants want to submit themselves to the

jurisdiction of the Mexican court…”44 Simply put, the Magistrate in Sacks heavily considered

Mr. Dahl’s affidavit in affirming her denial of the defendants’ forum non conveniens motion.45

         The Defendants in this case argue that the district court in Sacks “upheld the denial of the

forum non conveniens motion in that case, but in doing so the court disregarded the Mexican law

opinions Plaintiffs herein attempt to rely upon because of the evidence discrediting them.”46 This

is incorrect as the court in Sacks affirmed the Magistrate’s exclusion of Mr. Pereznieto’s

opinions but relied on Mr. Dahl’s opinions to find that Mexico is not an available forum:

         The Magistrate Judge properly removed from her consideration all of Dr.
         Pereznieto’s opinions and found Nayarit, Mexico is not an available and
         adequate alternative forum. Each finding, alone, prevents a dismissal of this
         case.

Sacks v. Four Seasons Hotel Ltd., 2007 U.S. Dist. LEXIS 98050, at *9 (E.D. Tex. Sept. 10,

2007)(emphasis added). Regardless, the objections to Mr. Dahl’s affidavit at issue in Sacks – that

he relied on a discredited Mexican law expert – are not at issue in this case because Mr. Dahl’s

affidavit is supported by that of Mr. Muria, a Mexican attorney and law professor.47

         In further effort to rebut Plaintiffs’ inadequate forum argument, Defendants contend that

“Plaintiffs do not cite a single case where a court has held that such a waiver of limitations is

invalid or unenforceable under Texas or federal law.”48 Yet, Defendants confuse the burden.

Plaintiffs’ pleadings allege that the waivers of limitations are invalid and these allegations must

43
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 15.
44
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 15.
45
   Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13-18.
46
   ARNOLD & ITKIN REPLY, at p. 14.
47
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
48
   ARNOLD & ITKIN REPLY, at p. 15.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 18 OF 28
be taken as true. Davies, 158 S.W.3d at 56. If the waivers are invalid, then Plaintiffs may not

refile their claims in Mexico and, as a result, Plaintiffs’ claims are ripe.

           Defendants further allege that “[c]ourts routinely require defendants who move for forum

non conveniens to waive statute of limitations defenses as a condition to granting their motion.”49

Yet, the cases cited by Defendants either did not discuss the language of the waivers, See Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 242 (U.S. 1981), or failed to discuss the validity of the

waivers under the foreign law. See Taylor v. Tesco Corp. (US), 754 F. Supp. 2d 840, 849 (E.D.

La. 2010). Again, for an agreement to waive limitations it “must be specific and for a

predetermined length of time” and “[a] general agreement in advance to waive or not plead the

statute of limitations on a particular obligation is void as against public policy. See Lett, 2015

U.S. Dist. LEXIS 14627, at *10, n. 2. Defendants argue that “this Court is not the proper forum

to speculate about whether a hypothetical court in Mexico would accept the stipulations filed by

the [underlying defendants].”50 Plaintiffs agree. In this malpractice case it is the jury (not this

Court) who must decide what a court (Mexico or otherwise) would have done in the underlying

case under hypothetical circumstances. See Alexander, 146 S.W.3d at 122.

           E.      GUNN V. MINTON AND RANGEL V. LAPIN SUPPORT PLAINTIFFS’ POSITION.

           In their Further Reply, Defendants contend that Gunn v. Minton, 133 S. Ct. 1059 (2013)

and Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) do not

support Plaintiffs’ position because “both show that … Plaintiffs may not prove causation by

offering expert testimony about the hypothetical outcome of the unresolved underlying case.”51

In the same breath, Defendants acknowledge that in Minton, the state court was required to

decide “the hypothetical case within the case” and that, no matter this decision, “the real-world


49
     ARNOLD & ITKIN REPLY, at p. 14-15.
50
     ARNOLD & ITKIN REPLY, at p. 16.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 19 OF 28
result of the prior federal patent litigation will not change.”52 Nonetheless, Defendants contend

that Minton is distinguishable because the underlying case had been finally resolved and “the

final resolution of the patent case was essential to the outcome in Minton.”53 Defendants are

mistaken.

         Just as in Minton, Plaintiffs must prove causation in a hypothetical sense because their

underlying United States case has been finally dismissed. There is evidence that they may not

now be re-filed in Mexico due to, among other reasons, lack of diligence and limitations.54 The

delay in re-filing was caused by Defendants’ “refusal to pursue an action” in Mexico and thus,

the “return jurisdiction” clause is inapplicable here.55 With the underlying claims final, the same

“hypothetical case within a case” discussed in Minton will be applicable. The jury’s resolution of

the malpractice claim will not reverse “the real-world result” of Defendants’ failure to properly

handle these claims in the first instance.

         Defendants also contend that Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) “supports the arguments made by Defendants in this suit” i.e. that

“Plaintiffs cannot use expert testimony to prove causation when they have not, in fact, lost out on

the opportunity to proceed with the underlying case.”56 Rangel undoubtedly supports Plaintiffs’

position because in Rangel, the underlying case that the client alleged he lost due to the lawyer’s

conduct was never even filed. Id. at 19-20. In that case, the client was involved in an automobile

collision. Id. at 19-20. The client hired the attorneys to represent him in a lawsuit against the

other vehicles driver. Id. at 20. The law firm agreed, but later withdrew from this representation

after it discovered that no party carried insurance. Id. The client then, without even attempting


51
   See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 1.
52
   See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 2 (emphasis added).
53
   See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 2
54
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 20 OF 28
to bring a lawsuit against Honda, sued the lawyers alleging that their erroneous advice to sell

the Honda that he was driving “prevented him from pursuing a products liability case against

[Honda] with respect to the Honda Accord’s passive restraint system.” Id.

           Although a court was free to consider its own jurisdiction, See Waco Indep. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 850 (Tex. 2000), the Houston Court of Appeals did not dismiss the

malpractice claims as unripe because the lawsuit against Honda had never even been attempted.

See Rangel, 177 S.W.3d at 20. Rather, the Rangel court implicitly indicated that the case was

ripe for review and acknowledged that “one proves causation in a legal malpractice suit by

expert testimony.” Id. at 22. “Here, the underlying case against Honda required expert testimony,

to show that [the client] would have prevailed against Honda, had the suit properly been

prosecuted.” Id. Because the client did not provide expert testimony to support the underlying

product liability case, the Rangel court held that the client “failed to raise a material fact issue on

the suit-within-a-suit causation element of his legal malpractice claim.” Id. at 23. Like the client

in Rangel who was not required to file the products liability suit clearly lost by the lawyers’

conduct, Plaintiffs are not required to file their clearly-barred claims in Mexico. See Id. Plaintiffs

need only prove their damages through expert testimony on causation. Id. at 22. Defendants’

contention that “Mexican courts may accept [Plaintiffs] lawsuit given the waiver of limitations”

is immaterial to this Court’s jurisdiction. See Mayer, 245 Conn. at 92 (“because the trier of fact

hearing the plaintiff's malpractice case must determine … whether an [underlying] action is time

barred, there is no need for a prior determination that the statute of limitations has run as a

condition precedent to the plaintiff pursuing this [malpractice] case.”).




55
     See PLAINTIFFS’ RESPONSE TO DEFENDANTS’ PLEA TO THE JURISDICTION, at Exhibit A, p. 27 (emphasis added).
56
     See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 3.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                  PAGE 21 OF 28
         F.        ABATEMENT   IS NOT APPROPRIATE BECAUSE PLAINTIFFS ARE NOT
                   REQUIRED TO FILE THEIR CLEARLY-BARRED CLAIMS IN MEXICO.

         Plaintiffs agree with Defendants that “the viability of the malpractice action depends on

the outcome of the underlying litigation.”57 The fundamental disagreement, however, concerns

whether the underlying proceedings have been concluded. As discussed above, the underlying

claims in the United States reached their conclusion in April of 2011 and Plaintiffs’ claims in

Mexico are now time barred.58 Defendants’ unsupported assertion that the claims may still be

filed in Mexico because of the waivers of limitations are not evidence sufficient to overcome

Plaintiffs’ pleadings and expert opinions from Mr. Muria and Mr. Dahl. See In re Manion, No.

07-08-0318-CV; 2008 Tex. App. LEXIS 6813, 2008 WL 4180294 *7 (Tex. App. – Amarillo

Sept. 11, 2008, orig. proceeding) (memo. op.)(“statements of counsel are not evidence”).

         Abating this case would be equal to dismissing it for lack of jurisdiction because either

way the Court would be requiring Plaintiffs to re-file clearly time barred claims in Mexico or,

subsequently, the federal district court and subject themselves to paying costs of the litigation in

Mexico59 or Rule 11 sanctions. See Comer v. Interstate United Corp., 119 F.R.D. 392, 393 (N.D.

Ill. 1988). The mere fact that Plaintiffs are required to carry out this hopeless endeavor rather

than immediately purse their claims in the United States – which is what Plaintiffs would have

been able to do “but for” Defendants’ negligence – underscores the salient fact that Plaintiffs

have suffered at least some injury as a result of Defendants’ negligence. See Vanderweyst, Tex.

App. LEXIS 8549, at *4. And even a slight injury is sufficient for this Court to maintain

jurisdiction over these claims. Id.



57
   ARNOLD & ITKIN REPLY, at p. 16.
58
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, at p. 13.
59
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.


PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                        PAGE 22 OF 28
           Defendants argue that Plaintiffs have failed to offer “any valid reason that this Court

should not follow the precedent of Philips, Texas Collegiate and Rothrock v. Akin, Gump, Hauer

& Feld, 1994 WL 183318 *7 (Tex.App. – Dallas 1994, no pet.), which Plaintiffs do not even

attempt to distinguish.”60 Yet, as noted in Plaintiffs’ Response, the Court need not follow Texas

Collegiate because in that case it was undisputed that the malpractice claims were premature as

the underlying litigation had not concluded. Tex. Collegiate, 367 S.W.3d at 465 (“Wolf does not

dispute that the malpractice claims are premature or that the trial court could have chosen to

abate the malpractice claims.”)(emphasis added). Here, Plaintiffs’ contend that the underlying

litigation has, in every practical sense, concluded.

           Similarly, the Court does not need to follow Philips because, unlike the plaintiff in

Philips who did not know whether she would incur any tax liability, Plaintiffs have already

incurred at least some injury caused by Defendants’ negligence. Philips, 620 S.W.2d at 751

(“Since it has not been determined whether relator is liable for the taxes in question, she has not

been harmed and, therefore, her cause of action has not accrued.”). At minimum, Defendants’

failure to properly handle the forum non conveniens motion injured Plaintiffs by depriving them

of their right to initiate their Mexican law claims in the United States where they would not be

hampered by the limited-to-non-existent discovery and procedural rules of Mexico.61 See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15.

           As to Rothrock v. Akin, Gump, Plaintiffs did not waste the ink to distinguish this case in

their initial Response because it is patently distinguishable on its face. The only abatement at

issue in that case dealt with an “agreed order which abated the lawsuit so that the proper DTPA

notices could be delivered and acted upon.” Rothrock, 1994 Tex. App. LEXIS 3526 at *8.


60
     ARNOLD & ITKIN REPLY, at p. 18.
61
     Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 23 OF 28
Further, the case does not discuss ripeness, and the only issue even remotely relating to

jurisdiction concerned the trial court’s jurisdiction to grant summary judgment against a party

not before the court. Id. at *33 (“it was error to render judgment against him because the trial

court lacked jurisdiction over the trustee and his claims.”). It is baffling why Defendants even

cited Rothrock in the first instance.

           Defendants’ next argue that various “practical concerns” support their abatement request

because, if the case is not abated to allow Plaintiffs to refile their claims in Mexico, Defendants

would have to inquire “into the advice given by Plaintiffs’ current counsel, and whether they

bear any responsibility to the extent any of Plaintiffs’ underlying claims are ‘lost.’”62 Such

arguments are at best red herrings and at worst patently and intentionally misleading. First, the

undersigned counsel was not hired to re-file the underlying claims; Defendants were and have

had this opportunity since April 2011. Second, it is no secret that Plaintiffs have not refiled their

claims in Mexico because they understand (and, in fact, have expert opinion) that these claims

are now barred by limitations due to Defendants’ gross malfeasance.63 Defendants do not, as they

contend, need to probe into the privileged mental impressions of Plaintiffs’ current malpractice

counsel to determine why Plaintiffs “are not pursuing th[e] claims in Mexico at all.”64 These

claims are barred and were barred prior to the retention of the undersigned counsel or the

initiation of this lawsuit months ago. Thus, Plaintiffs’ malpractice counsel could in no way “bear

any responsibility” for the loss of Plaintiffs’ underlying claims. Defendants’ threat to seek clearly

privileged information is specious.

           On the other hand, abating or dismissing this case and requiring another attorney to re-

file Plaintiffs’ claims in Mexico will exacerbate Plaintiffs’ already established injuries by


62
     ARNOLD & ITKIN REPLY, at p. 19.
63
     Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                         PAGE 24 OF 28
subjecting Plaintiffs to further attorney’s fees to pursue these barred claims and, perhaps, costs

and sanctions for filing a frivolous lawsuit.65 In fact, Mr. Dahl and Mr. Muria have opined that

“[i]f an attempt were made to file the underlying lawsuit once again in Mexico, it would

certainly be dismissed due to the statute of limitations” and Plaintiffs, as the defeated party,

“would likely have to pay the adversary’s costs, as determined by the Federal Code of Civil

Procedure…”66 Defendants in this case may then have a legitimate responsible third party

argument or at least would argue some superseding or intervening cause on the part of the new

lawyer, further complicating these matters.

         Defendants contend that “[i]t is not appropriate to engage in a battle of experts about

what might happen if Plaintiffs were to pursue their underlying claims to resolution.”67 But

Defendants know full well that Plaintiffs’ underlying claims have been dismissed in the United

States and are doomed in Mexico.68 To quote Kurt Arnold “the chances of the Court accepting

the jurisdiction for these cases even after following all steps [and refiling the cases in Mexico] is

remote.”69 That is why they withdrew from the representation in October 2014 and “urge[d]

[Plaintiffs] to seek the advice of Mexican Counsel concerning refiling these cases in Mexico to

see if the Courts will accept jurisdiction consistent with the requirements of the Eastern District

of Texas order.”70 Mexican counsel has indicated that a Mexico court will not accept jurisdiction

due to Defendants’ malfeasance and these claims are ripe for adjudication.71 Suddenly, after




64
   ARNOLD & ITKIN REPLY, at p. 19.
65
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
66
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 13.
67
   See ARNOLD & ITKIN REPLY, at p. 19.
68
   See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.
69
   See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients (emphasis added).
70
   See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.
71
   Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                    PAGE 25 OF 28
being sued, Mr. Arnold shamelessly shifts to a contrary position simply because it is

convenient.72

         Causation in malpractice cases are often a “battle of the experts.” See Creech v. Columbia

Med. Ctr. of Las Colinas Subsidiary, L.P., 411 S.W.3d 1, 14-15 (Tex. App.—Dallas 2013, no

pet.)(medical malpractice case); Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth

2005, pet. denied) (en banc)(medical malpractice case); see also Alexander, 146 S.W.3d at 120.

“It is particularly within the jury’s province to weigh opinion evidence and the judgment of

experts.” Creech, 411 S.W.3d at 15. In the legal malpractice context, expert testimony is what

converts mere speculation as to what would have happened in the underlying case into actual

causation. See Alexander, 146 S.W.3d at 120. Abating this case to require Plaintiffs to obtain a

ruling on whether their Mexican claims are barred would be prejudicial to Plaintiffs as Mr. Dahl

and Mr. Muria have opined that “it would be impossible to obtain a Mexican attorney willing to

take the underlying lawsuit on a contingency basis since it is so obviously vulnerable to the

statute of limitations.”73 Such a course of action would be a waste of judicial resources and

significant time, as the federal Mexican legal process can take up to five years. 74 The re-filing

serves no legitimate interest and, more importantly, is not required under the law. See Garcia,

2007 U.S. Dist. LEXIS 63432, at *18; Mayer, 245 Conn. at 92 (“because the trier of fact hearing

the plaintiff's malpractice case must determine … whether an [underlying] action is time barred,

there is no need for a prior determination that the statute of limitations has run as a condition

precedent to the plaintiff pursuing this [malpractice] case.”).




72
  The Texas Supreme Court has admonished such conduct, stating “for the law to countenance this abrupt and
shameless shift of positions would give prominence (and substance) to the image that lawyers will take any position,
depending on where the money lies, and that litigation is a mere game and not a search for truth.” Mallios v. Baker,
11 S.W.3d 157, 163 (Tex. 2000)(internal quotations omitted).

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                       PAGE 26 OF 28
                                                   III
                                           CONCLUSION & PRAYER

           At minimum, the lost benefit of pursuing the underlying Mexican law claims in a United

States court is at least some “concrete injury” which has already occurred and is not contingent

on any future event, thereby rendering these claims ripe. See Vanderweyst, 2003 Tex. App.

LEXIS 8549, at *14-*15. For this reason, and the reasons set forth in Plaintiffs’ Response and

herein, Defendants’ Pleas to the Jurisdiction and Alternative Pleas in Abatement should be

denied.

           WHEREFORE, Plaintiffs pray that the Court deny Defendants’ Pleas to the Jurisdiction

and Alternative Pleas in Abatement and grant Plaintiffs any further relief, at law and in equity to

which Plaintiffs may show themselves to be justly entitled, to which the Court believes Plaintiffs

to be deserving, and for which Plaintiffs will ever pray.




73
     Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.
74
     Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                       PAGE 27 OF 28
                                                              Respectfully submitted,

                                                              THE KASSAB LAW FIRM

                                                                    / s / David Eric Kassab
                                                                    LANCE CHRISTOPHER KASSAB
                                                                    Texas State Bar No. 00794070
                                                                    lck@texaslegalmalpractice.com
                                                                    DAVID ERIC KASSAB
                                                                    Texas State Bar No. 24071351
                                                                    dek@texaslegalmalpractice.com
                                                                    1420 Alabama
                                                                    Houston, Texas 77004
                                                                    t.713.522.7400
                                                                    f.713.522.7410

                                                              DOHERTY✯WAGNER

                                                                    / s / Brett Wagner
                                                                    BRETT WAGNER
                                                                    Texas State Bar No. 20654270
                                                                    brett@dwlawyers.com
                                                                    LARRY JOE DOHERTY
                                                                    Texas State Bar No. 05950000
                                                                    larry@dwlawyers.com
                                                                    RYAN W. SMITH
                                                                    Texas State Bar No. 24063010
                                                                    ryan@dwlawyers.com
                                                                    13810 Champion Forest Drive, Suite 225
                                                                    Houston, Texas 77069
                                                                    t.281 583-8700
                                                                    f.281 583-8701

                                                              ATTORNEYS FOR PLAINTIFFS

                                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 31st day
of August, 2015.

                                                                    /s/ David Eric Kassab
                                                                    David Eric Kassab




PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION                                   PAGE 28 OF 28
                    EXHIBIT
                    EXHIBIT "A"
                            "A"

             AFFIDA VIT OF ARNAU MURIA AND HENRY SAINT DAHL


WASHINGTON, D.C.
     and             : SS
GUADALAJARA, MEXICO:


        I.      My name is Henry Saint Dahl. I am of age, sound of mind and otherwise

competent to sign the present affidavit. As stated with more detail in my resume (attached

as Exhibit 1), I am an attorney-at-law,   having been admitted to the practice of law in

Buenos Aires, Argentina (1973), in New York (1982), in Texas (1990), in Madrid, Spain

(I991) and in Washington, D.C. (2003). I have also been admitted to the Bar of the U.S.

District COUli, Northern District of Texas (1996) and to the U.S. Court of Appeals for the

Fourth Circuit (1998).

       2.       I have a J.D. and an LL.D. degree from Buenos Aires University, where I

studied law between 1968 and 1973. I also hold an L.L.M. from London University,

where I studied comparative   law in 1976-1977. I also hold a post-graduate degree from

Leningrad University (now Saint Petersburg University, Russia), where I studied

comparative   law in 1977-1979.

       3.       I have published nine books and approximately     forty articles dealing with

international and comparative law. Some of these publications deal extensively with

forum non conveniens ("FNC" from now on). One of my books, Dahl's Law Dictionary

(English and Spanish) (fifth edition, 2010), contains a detailed treatment of Mexican law.

During 1997-1998 I was an adjunct law professor of Mexican law at the SMU School of

Law. Since 1993 I have undertaken a deep and a continuous study of how FNC interacts

with legal systems in Latin America, including Mexico, and in Europe, particularly
France. I have been a consultant on the issue of FNC to several Latin American countries,

to France and to the Inter-American    Juridical Committee. Until recently, as the Adjunct

Secretary General and Secretary General of the Inter-American       Bar Association (IABA)1

and as the General Editor ofthe Inter-American      Bar Association Law Review, I have

been in contact with Mexican Bars, Mexican attorneys on a variety of issues of Mexican

law. I am also very familiar with the Spanish and with the French legal systems, the two

main sources of Mexican law.

        4.      I have worked extensively on cases dealing with FNC, including Mexico,

but these Mexican cases have. now ended .. My FNC work as a practitioner and as an

academic has always been consistent.      My statements are based on my personal

knowledge and the translations mentioned below are true and correct.

        5.      My name is Arnau Muria, I am of age, sound of mind and otherwise

competent to sign the present affidavit. As stated with more detail in my resume (attached

as Exhibit 2), I am an attorney-at-law,   admitted to practice in Mexico and in good

standing.

        6.      Since 2004 I have been a law professor at the University of Guadalajara

where I teach, among other subjects, conflict of laws. Since 2003 I have worked as an

attorney in Guadalajara,   in matters related to litigation, to foreign investments and other

legal areas.




 1The IABA was founded in 1940 to promote the rule of law and the administration of
justice throughout the Americas and to advance the science of jurisprudence, particularly
the study of comparative law. It is headquartered in Washington, DC and it has branches
 and chapters throughout the Americas, including Mexico. More details are available at
 ww\v. iaba.org


                                                                                                2
           7.       My work as a law professor and as a practitioner has often put me in

contact with matters of domestic and international jurisdiction,     evidence, and

constitutional    law among many others. Because of the nature of my practice and my

teaching I am very familiar with Mexican federal law, and the law of the remaining

Mexican States, the latter tending to be very uniform. My statements are based on my

personal knowledge and the translations mentioned below are true and correct.

           8.       Included in Exhibit 3 are the pertinent report sections from the

Inter-American      Juridical Committee (lAJC),2 an official organ of the Organization of

American States, to which.both Mexico and the United States are parties. This report

was drafted by Henry Dahl, at the request ofthe IAJC. Included in Exhibit 4 are the

relevant texts, in their original Spanish, of Mexican Federal Code of Civil Procedure and

of the Federal Civil" Code cited in this affidavit.

           9.      We have been asked by attorney Lance Kassab, counsel for plaintiffs in

    Maria Santos Lopez Dominguez et al. v. Arnold & Itkin, L.L.P. et al., and to prepare a

    report on the effectiveness   of the defense against the a forum non conveniens defense,

    filed in Maria Santos Lopez Dominguez et al. v. Gulf Coast Marine & Associates et al.,

    Civil Action NO. 9:08-cv-200    (TJW), from now on referred to as "the underlying

    lawsuit".




2 The Inter-American Juridical Committee dates back to the Resolution adopted by the III
American Conference held in Rio de Janeiro in 1906. According to the OAS Charter
"the pUlpose of the Inter-American Juridical Committee is to serve the Organization as
an advisory body on juridical matters; to promote the progressive development and the
codification of international Law; and to study juridical problems related to the
integration of the developing countries of the Hemisphere and, insofar as may appear
desirable, the possibility of attaining uniformity in their legislation." (Art. 99). "The
Inter-American Juridical Committee represents all of the Member States of the
Organization, and has the broadest possible technical autonomy." (Art. 102).


                                                                                               3
           10.       We understand that the underlying events took place in Mexican territorial

    waters which, from a Mexican point of view, makes Mexican federal law applicable.             In

    order to form an opinion we have studied the following       pleadings filed in the

    underlying lawsuit:

       •   Plaintiffs' Motion to Reinstate the Case with Exhibits;
       •   Defendants'. Joint Response In Opposition to Plaintiffs' Motion to Reinstate Case;
       •   Plaintiffs' Reply In Support of Motion to Reinstate Case;
       •   Defendants' Joint Sur-Reply In Opposition to Plaintiffs' Motion to Reinstate
           Case;
       •   Judge Clark's May 29,2009 Order Re: Motions to Dismiss For Forum Non
           Conveniens;
       •   Judge Ward's Memorandum and Order Dismissing the Case;
       •   Judge Ward's Order Dismissing the Case;
       •   Judge Marcia A. Crone May 14,2014 Memorandum and Order.


           11.       We have reviewed the relevant Mexican law, particularly the Mexican
                                                  ,
    Federal Code of Civil Procedure; the Federal Mexican Civil Code; and the Mexican

    Federal Constitution.

           12.       We find that the following arguments could have been raised in the

    underlying case.

                            I.      Mexico Is Not An Available Forum

           13.       We are not aware of any Mexican judgment that knowingly accepts the

filing ofa lawsuit pursuant to a FNC dismis~al. FNC is an unknown concept in Mexican

law. The effects of FNC violate Mexican law not only in a strictly juridical sense, but

also politically.'     Since the effects of FNC are illegal in Mexico, no jurisdiction attaches



3 FNC is perceived throughout Latin America as "judicial imperialism" where a court of
country A determines what will happen in the courts of country B, as the following
indicates: "Sovereignty. It is injurious for a country that aforeign judge unilaterally
imposes the commission of certain procedural acts in such country, for instance thefiling
of a claim." (1999 IAJC Report, at p. 3, see Exhibit 3).


                                                                                                   4
pursuant to a FNC dismissal. The Mexican judge cannot provide help in violating his

own legal system. Consequently,            Mexico is not an alternative jurisdiction.

                                    1,1.     Preemptive Jurisdiction

             14.      The theory of preemptive jurisdiction,    known as competencia preventiva,

is deeply rooted in Mexican law. Even if Mexico had had concurrent jurisdiction,              once

one court issues summons, the jurisdiction           that the other court might have had is

dissolved. Therefore, no alternative court remains.

             15.      This principle is established in the Federal Code of Civil Procedure, which

states in its pertinent part as follows:

             Article 328.- The effects of summons are:
             1. To preempt the lawsuit in favor of the issuing court,
             II. To bind the defendant to follow the lawsuit with the court that summoned him,
             if it had jurisdiction at' the time of issuing the summons.
             [, .. J (Emphasis added. See Exhibit 4 for the original Spanish text).


             16.      Further, supervening changes that take place after the issuance of

summons, do not alter the jurisdiction          acquired through summons:

             Article 12.- Changes in factual situations, that take place after the issuance of
             summons, do not change jurisdiction. (See Exhibit 4 for the original Spanish
             text).

             17.      Thus, under Mexican law, the filing before the U.S. Court preempts

Mexican jurisdiction.

             18.      The 2000 tAlC Report describes the impact of preemptive jurisdiction         on

a filing resulting from an FNC dismissal as not generating jurisdiction           in the Mexican

court.

             "Even when there is concurrent jurisdiction, the claim filed before one court
         I   extinguishes the jurisdiction of the other court." (At pp. 2 - 3, see Exhibit, 3).
   k



                                                                                                        5
        19.     The principle of preemptive jurisdiction      is uniformly followed in Mexico,

and it applies to international as well as to domestic cases. The Supreme Court of Mexico

issued a ruling in 1989, concerning conflict of jurisdictions      between two Mexican States,

but equally applicable to international cases since the Mexican norms in question are the

same. In this decision, attached as Exhibit 5, the Supreme COUl1held that "jurisdiction

shall lie in the defendant's   domicile [... ] if there were several defendants with different

domiciles, the procedural      rules [of Mexican-States]   agree that the court of the domicile

of one of the defendants, as chosen by plaintiff, shall havejurisdiction,"      The Supreme

Court concludes by holding that "when jurisdictional        rules grant jurisdiction   to several

courts, the one hearing the case first shall preempt the others."

              III.     Mexican Procedural Law Tends to Be Nonnegotiable

        20.     Mexican law, including of course its notion of jurisdiction,       cannot be
modified by stipulations, as the Federal Code of Civil Procedure states:


        Article 3.- The reciprocal relationships between the parties, inside the
        proceeding, with their respective rights and duties as well as terms, challenges,
        and all types of measures that this Code grants, the parties, their actions in the
        case, cannot be modified, in any way, due to laws or statutes relative to the way of
        operating, or by one of the parties being special, whether plaintiff or defendant. At
        any rate, the principle of equality between the parties must be observed within the
        proceeding, even if the parties' role becomes inverted during the case. (Emphasis
        added). (See Exhibit 4 for the original Spanish text).



        21.     Accordingly,     stipulations made before a U.S. court are completely

meaningless in Mexico:

        "The promises made to a foreign court [e.g. a U.S. Court] about the wish
        to submit to a Latin American jurisdiction do not generate jurisdiction in
        Latin America. SUGhpromises, regardless of how sincere, are procedurally
        irrelevant." (1999 lAIC Report, at p. 7, see Exhibit 3).




                                                                                                    6
        22.           Due to the above, the underlying Defendants'      consent or
submission to the Mexican legal system in the underlying lawsuit would not
confer jurisdiction       to Mexican courts.


                                IV.      Jurisdiction in Defendant's Domicile

        23.           Mexican law determines that jurisdiction    in a personal action lies in the

defendant's        domicile.

        Article 24.- Territorial jurisdiction        is determined by
        [   ...]
        IV. The defendant's domicile for real actions over chattels, or personal actions, or
        class actions or those referring to civil status.
        [ ... J (See Exhibit 4 for the original Spanish text).


        24.          Mexican law does not go into determining by itself where precisely that

domicile is located in the given foreign country, what venue rules it may trigger, ~tc.

Mexico refers to defendant's          'country, allowing such country to apply its internal rules in

determining the location of the domicile in question and its jurisdictional          significance.

Obviously, Mexican law does not, and could not, impose jurisdiction             on such foreign

country. Said Article 24 becomes operative if the foreign country has jurisdiction

according to its own legal system.

                                           V. Mexico's Policy

        25.          Mexico    does not have any law, interest or policy which prevents              its

nationals     from reaching to a judicial system abroad and benefit from the advantages

offered by the legal system of that forum.

        26.          To the contrary,     Mexico has a long history of supporting        its nationals

when asserting their rights in foreign tribunals. For instance, Mexico adhered, on March

23, 1991, to the United Nations International Covenant on Civil and Political Rights.




                                                                                                       7
Under Articles 14 and 26 of the Covenant, our nationals are entitled to avail themselves

with the rights and remedies afforded by laws of a foreign forum that is a party to the

Covenant, just as foreign citizens would be entitled likewise to the rights and remedies

afforded by Mexican laws. The United States adhered to said treaty on June 9, 19924.

Said articles 14 and 26 state as follows:


       Article 14
       I. All persons shall be equal before the courts and tribunals. [... J

       Article 26
       All persons are equal before the law and are entitled without any discrimination to
       the equal protection ofthe law. In this respect, the law shall prohibit any
       discrimination and guarantee to all persons equal and effective protection against
       discrimination on any ground such as race, colour, sex, language, religion,
       political or other opinion, national or social origin, property, birth or other status",
       (Emphasis added.)


       27.     This goes a long way into explaining why a Mexican court would not take

kindly to the argument of "less deference" being accorded to a Mexican plaintiff because

he resides in Mexico. In fact, if a Mexican judge accepted that posture he or she would be

violating the Mexican Constitution", which states as follows:


        Article 1. Every person in the United Mexican States shall enjoy the guarantees
       granted by this Constitution, which cannot be restricted or suspended except in
       such cases and under such conditions as are herein provided. (See Exhibit 4 for
       the original Spanish text).


       28.     Just as the U.S. and most countries in the world, Mexican law grants

supremacy to international treaties, i.e. the International Covenant of Political and Social

Rights. A Mexican judge who knowingly accepted jurisdiction       based on "less deference"




4 In https://treaties.l:1n.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg no=iv-
4&lang=en it can be seen that both, Mexico and the USA are parties to this Convention.


                                                                                              8
having been granted to a Mexican litigant by a foreign court would be violating Article 1

of the Mexican Constitution,            as well as many of the other Mexican rules explained in this

opinion. In other words, absolute procedural equality is a constitutional                  right in Mexico,
                                                          J




which clashes with the "less deference" theory. This is another reason why Mexico is not

an alternative forum.


       VI.     Mexican Rejection of FNC Does not "Trump" or "Antagonize" US Law

             29.      FN~ is a highly technical issue where Comparative                Law and Conflict of

Laws converge. As many other topics, a political angle could or could not be added to it.

In Latin America, including Mexico, FNC usually causes problems of illegality, loss of

evidence and a score of other practical obstacles which, strictly speaking, are notmore

convenient for reaching a decision on the merits.

             30.      When these obstacles are raised in opposition to FNC, sometimes the reply

by FNC proponents is more political than legal:


             One often hears replies such as: it would be impermissible to allow the law of
             country X to trump American law in an American court, or that it would be
             absurd for country Y to dictate to this court whether to apply FNC or not.
             This argument is misplaced. FNC explicitly refers to the foreign legal system. It is
             not that the law of Paraguay, for example, "invades" US law or "prevents"
             American law from being applied. Quite to the contrary, US law expressly calls
             for the application of the foreign legal system concerned.
             American law is not challenged or antagonized by a foreign system that becomes
             applicable by express mandate of American law. Those who state the opposite are
             confusing the status of an invitee with that of a trespasser. (See Dahl, H. S.




5 In http://viww.ohchr.org/en/professionalinterest/pages/ccpr.aspx                    the whole Convention
is available.
6   Article I also bans any discrimination   based on nationality.   See Exhibit 4.



                                                                                                              9
        Forum Non Conveniens,         Latin America and Blocking Statutes7, 35 Inter-
       I American   Law Review, 44 (2003).).

        31.     As stated in a Us federal case, also representative     of Mexico:

        Implied in defendants'    argument that Costa Rican law should not be able to
        dictate to American judges what cases they must hear, is the notion that it-is
        simply unfair that Costa Rica can take a position that undercuts American forum
        non conveniens law, and thus "dictate" what cases they must hear. However, it
        should be emphasized that this Court could never reach the forum non conveniens
        issue if it had not first been established that it is fundamentally fair for this action
        to proceed in this Court, (See Lucas Pastor Canales Martinez et al. v. Dow
        Chemical Company, et al., 219 F. Supp. 2d 719; 2002 U.S. Dist. LEXIS 13481, at
        p.9).


        32.     The above helps understanding      why Mexico never was an alternative

forum in the underlying    lawsuit.


                          VII.   Mexico Is Not an Adequate Forum

        33.     Mexico's evidentiary law is remarkably weak when compared to the U.S.

legal system. For instance, Mexico has no discovery and no depositions. When filing a

lawsuit the plaintiff has to produce all the documentary     evidence, and without discovery:

        Article 323.- Together with the claim, plaintiff must file the documents on which
        the action is based. Ifhe did not have them, he must indicate the archive 01' place
        where the originals are so that, at his expense, a copy of those documents be
        made, as determined by law, before the claim can be admitted. It is understood
        that the claimant has the documents available, provided that he can legally request
        an authorized copy of the originals.'(See Exhibit 4 for the original Spanish text).

        34.      Mexican law is very clear in the sense that documents found after the
lawsuit is filed, are inadmissible:

        Article 324.- Together with the claim all documents held by plaintiff, and which
        he means to rely on, must be filed and, those presented later, in violation of this
        rule, shall not be admitted. [ ... ](Emphasis added. See Exhibit 4 for the original
        Spanish text).


7 In http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1l89&context=umialr
the complete article is available.


                                                                                               10
                                            ,
          35.     Mexican law knows, of course of testimonial evidence.      But this takes

place in open court, without the possibility of having interrogated the witness previously.

Further, Mexican law does not admit requests to produce documents by abstract

categories. As Article 323 of the Federal Code of Civil Procedure states, if the plaintiffs

is not in possession" of the documentary evidence, he must "indicate the archive or place

"wherethe originals are."

          36.     Even the testimonial evidence available in Mexico is severely limited:

          Article 166.- A party can only present up to five witnesses for each fact, except
      I   express legal rule to the contrary. (See Exhibit 4 for the original Spanish text).

          37.    This means that, in a case where plaintiff needs to prove some type of

engineering malfunctioning,     for instance if a valve failed to operate as intended to, and

the defendants are in the U.S., the support afforded by Mexican evidentiary rules is close

to zero. X.     Mexican law 'completely rejects any American type of discovery. That is

why the Federal Rules of Civil Procedure have incorporated the following article that

effectively bans any type of U.S. discovery from Mexican soil:


          Article 561.- The duty to produce documents and objects in proceedings taking
          place abroad shall not include the one to produce documents or copies of
          documents identified by generic characteristics.
          In no way can a national court order or carry out a general inspection of archives
          that are not of public access, except in cases allowed by national laws. (Emphasis
          added. See Exhibit 4 for the original Spanish text).

          38.    For such reasons, stipulations agreeing "to submit to discovery in the

Mexican/arum in accordance with the procedural rules a/the Mexican court" are

nonsensical since there is no discovery in Mexico. Stipulations agreeing to "make all

relevant witnesses and documents available in Mexico, to the extent consistent with



                                                                                                11
Mexican law" are not really an advantage since Mexican law is, as shown above, very

restrict ive.

           39.     Leaving evidentiary issues behind, Mexico is also an inadequate forum

since lawsuits in Mexico take considerably          longer than what they would in the U.S.

International service of process, for instance, against several defendants residing in

various U.S. states, could take between one and two years. Reaching a final decision

could take five or six years.

                                  VIII.   Statute of Limitations

           40.    The Mexican statute of limitations applicable to torts is of two years, as

determined by the Mexican Federal Civil Code:

           Article 1161.- A two-year term applies to the statute of limitations concerning:
           [...]
           V. Civil liability emerging from torts;
           The statute of limitations begins to run as from the day when the acts in question
           were committed. (See Exhibit 4 for the original Spanish text).

           41.    The Civil Code also establishes that the statute oflimitations    comes into

effect automatically,    without the need of any act in particular:

           Article 1158.- The statute of limitations accrues by the mere passage of the time
       I
                                                J
           determined by law. (See Exhibit 4 for the original Spanish text).



           42.    As stated above, in Mexico the statute of limitations for torts is of two

years. The accident in question took place in 2007. Therefore the underlying action is

already time barred in Mexico.


           43.    The statute ofiimitations,   once accrued, provides an unbeatable defense,

so strong that it is constitutionally   protected, in a way akin to due process in the U.S. In

this sense the Mexican Federal Constitution         states as follows:




                                                                                                 12
        Article 14. [... J
       Nobody can be deprived from his freedom or of his property, possessions or rights
       except with a lawsuit followed before pre-established courts and according to the
       Laws in place before the acts in question. [... J (Emphasis added). (See Exhibit 4
       for the original Spanish text).


       44.           As explained below, neither the Mexican filing, nor the filing of the

underlying lawsuit in the U.S. can toll the action in Mexico.         In this respect the Mexican

Federal Civil Code states:

       Article 1168.- The statute of limitations is tolled:
        I. [ ... J
                 II. By the filing of a lawsuit or any other claim before ajudge, served to
       the person in possession or to the debtor, as the case may be;
       It will be considered that the action is not tolled through a judicial claim if the
       plaintiffnonsuits    it, or if the claim were dismissed. (See Exhibit 4 for the original
       Spanish text).                           '



       45.           We understand that, in the underlying case, the claim that was filed in

Mexico where: a) it was not served on the defendants and, b) it was dismissed. For any

of these two reasons, and with greater reason for both, the Mexican filing did not toll the

statute of limitations, as determined by the said Article 1168.


       46.           Since the underlying lawsuit was also finally dismissed by the American

Court, such U.S. filing cannot be raised in Mexico as having tolled the action.


       47.           If an attempt were made to file the underlying lawsuit once again in

Mexico, it would certainly be dismissed due to the statute of limitations, as explained

above. Further, the defeated party would likely have to pay the adversary's         costs, as

determined by the Federal 'Code of Civil Procedure:


      I Article      7. The losing party must pay the adversary's costs. [... J



                                                                                                    13
                 48.     Further, it would be impossible to obtain a Mexican attorney willing to

take the underlying lawsuit on a contingency basis since it is so obviously vulnerable to

the statute of lim itations.

                                              IX.       Conclusions

                 49.     We are of the opinion that the reasons stated above could have. been raised

before the American court in the underlying lawsuit. We believe that had such defenses

been raised, forum non conveniens would not have been granted.

                 50.     We further think that, strategically,   discovery in the U.S. and according to

American law would have been the best way to obtain evidence.

                 51.     We also believe that the underlying lawsuit is irretrievably time-barred in

Mexico.

                 52.     Finally, we are quite certain, that no Mexican attorney would be willing to

litigate the underlying lawsuit, in Mexico, under a contingency agreement.

                 53.     Further affiants say naught.


I, Arnau Muria, declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

Executed on August              2 Cj, 2015,   in Jalisco, Mexico .
                     .
                     ~       h ~-Z--t
                             ~./~

   --,~~/                       -.-~.--
            ,.
                 t


I, Henry Saint Dahl, declare under penalty of perjury that the foregoing is true and
correct.
                                      t~
Executed on August             3 0 ~2015,      in Washington, DC.




                                                                                                     14
  EXHIBIT 1




   Resume of

Henry Saint Dahl
                                HENRY SAINT DAHL
                             1301 Connecticut Avenue, N.W.
                                        Suite 350
                                Washington, D.C. 20036
                                   Tel (434) 284-1934

PRESENT & PAST ACTIVITIES
   • International Legal Consulting. Consultant to US, European and Latin American
     law firms in matters of international and comparative law. (2015 -       ).
   • Boudreau & Dahl, Partner. Washington, D.C.; Dallas, TX. International business
     law, international litigation, international arbitration. (1990 - 2014).
   " Law Professor. On international & comparative law, in the US, in Latin America
     and in France, as described below. (1984 - 2010).
   • Consultant to Foreign and U.S. Governmental Entities.
   • Associate Attorney. M&M Bomchil (Argentina), Curtis-Mallet, Prevot & Mosie
     (N.Y.) (1979 - 1983).
   • Author. Of legal books and scholarly articles,
   • Latest Positions Held. President, Inter-American Bar Foundation (2010 - 2013).
     Secretary General, Inter-American Bar Association (2014 - 2015). Vice President
     (2012-2013) and President (2014-2015), Inter-American Legal Affairs '
     Committee, Washington, D.C. Bar.

REPRESENTATIVE        WORK
   • Handling contractual/governmental     aspects of the installation of an oil rig in the
     South Atlantic.
   • Representing a British manufacturer in the sale of aircraft to a Latin American
     nation.
   • International loan agreements, foreign investments, transfer of technology
     involving US, Latin' American and European enterprises.
   • US AID - Evaluating project on the Administration of Justice. Assessing and
     reporting on criminal law systems of Central America.
   • Helping a U.S. mining company to establish operations throughout Latin
     America.
   • Consultant tothe Bureau du Droit Europeen et International en Matiere Civile et
     Commerciale (France).
   • Opening contacts and negotiating contracts in Europe and in the U.S. for a
     Brazilian corporation.
   • Litigation over lead contamination in Mexico.                              .
   • Representing a U.S. TV personality before a French District Court and the Paris
     COUli of Appeals, pleading in French. Case won in both instances.
   • Advising a consortium of law firms who obtained the highest settlement in the
     U.S. for a massive tort committed abroad.
   •   Helping the authorities of Argentina, Costa Rica, Colombia, Uruguay and
       Venezuela obtain the donation of Swedish software to fight child pornography
       and human trafficking.
   •   Consultant to the Inter-American Juridical Committee of the Organization of
       American States on matters of international litigation (Washington, D.C., Rio de
       Janeiro ).
   •   As lead attorney, representing a local importer against one of the biggest
       multinational corporations, obtained the biggest award ever granted for an
       arbitration in Costa Rica.
   •   Forum non conveniens litigation in Ivory Coast and Burkina Faso.
   •   Appearing as an expert on Latin America and on French law in court proceedings
       throughout the U.S.
   •   Asbestos litigation in Spain.
   •   International class actions in Argentina in matters of consumer fraud.
   •   Lawsuit in the U.S. for environmental contamination in Peru, advising group of
       U.S. law firms.
   •   Triggered a $1.8MM donation to the health system of Guatemala by suing the US
       government due to non-consented experiments on Guatemalan children.
       http://ww·w.washingtonpost.com/nationallhealth-science/us-plcdges-18-mi    lIion-
       in-response-tounethical-
       guatemalan-medical-studies/2012/0'1/10/gIQAGeXLpP         _story.html

LICENSED TO PRACTICE IN
   • U.S.A. Washington, D.C. (2003).
   • Texas (1990, presently inactive).
   • New York (1982)
   • Spain. Madrid (1991, presently inactive).
   • Argentina. Buenos Aires (1973, presently inactive).

FOREIGN LANGUAGES         .                                                                ,
  • Spanish, mother tongue together with English.
  • French, fluent.
  • Russian, fluent.
  • Italian, fluent.
  • Portuguese, fluent.

UNIVERSITY DEGREES
  • LL.D. Buenos Aires University, School of Law, Argentina. (1980).
   • Stazhor. Leningrad University, School of Law, Russia. (1979).
  • LL.M. London University, King's College, England. (1977).
  • LL.B. Buenos Aires, University, School of Law, Argentina. (1973).
  • Translator (legal French). Buenos Aires University, School of Law, Argentina.
     (1972).
  • Translator (legal English). Buenos Aires University, School of Law, Argentina.
     (1971).

                                           2
SCHOLARSHIPS AND DISTINCTIONS
   • Scholarship granted by the British Government for post-graduate legal studies in
     England (1976 - 1977):
   • Scholarship granted by the Russian Government for post-graduate legal studies
     in the Russia. (1977 - 1979).
   • Scholarship granted by the French Government for post-graduate legal studies
     in France. (1977).
   • William Roy Vallance Award, Inter-American Bar Foundation (2012).

CONSULT ANT TO FOREIGN AND U.S. GOVERNMENTAL                     ENTITIES
  • Congress of Peru, on international litigation, 2015.
  • Congress of Brazil, on international litigation, 2010.
  .. Bureau du Droit Europeen et International en Matiere Civile et Commerciale
     (France), on Forum Non Conveniens, 2006.
  • Congress of Panama, on international litigation, 2006 - 2007.
  • U.S.AID, on improving the business legal system in EI Salvador 2003 - 2004.
  • Attorney General of Ecuador, on international law, 1999.
  • Inter-American Juridical Committee of the Organization of American States, on
     international litigation, 1999 - 2000.
  • Congress of Guatemala, 1997, on international litigation.
  • Congress of Costa Rica, 1997, on international litigation.
  • U.S.AID, Evaluating project on the Administration of Justice. Assessing and
     reporting on criminal law systems of Latin America, 1987 - 1988.

DRAFTSMAN OF LAWS & OTHER STATUTORY MATERIALS
Brazil:
    • Bill Determining Damages in International Litigation.
Costa Rica:
    • Law for the Defense of Procedural Rights of Citizens and Residents. Bill Number
         12.655, Unanimous' Affirmative Opinion by the Permanent Juridical Committee
         of the Legislative Assembly of Costa Rica, dated June 10, 1997.
Dominica:
    • Transnational Causes of Action (Product Liability) Act 1997.
Ecuador.
    • Interpretative Law 0.[ Articles 27, 28, 29 and 30 of the Code of Civil Procedure
        for Cases of International Concurrent Jurisdiction, published in the Registro
         Oficial, 1/30/98, pp. 1 and 2
Guatemala:
   • Lawlor the Defense 0.[ Procedural Rights of Nationals and Residents, enacted on
        May 14, 1997.
Honduras:
   • Resolution in the Defense of Legislative Sovereignty, Judicial Independence and
        Procedural Rights, Honduras Congress, March 1996.
Model Law / Litigation.


                                           3
    • Latin American Model Law on International Litigation:
Model Law I Human Rights.
    • Latin American Model Law on Human Rights.
Nicaragua:
   • Law for the Defense of Procedural Rights ofNationals and Residents in
       Nicaragua; bill filed on May 12, 1997.
Organization of American States:
   • Proposalfor an Inter-American Convention on the Effects and Treatment of the
       Forum Non Conveniens Theory. OAS/Ser.Q, CJIIdoc.29/99, July 14, 1999.
   • Proposal for an Interamerican Convention on the Effects and Treatment of the
       Forum Non Conveniens Theory. Forum non conveniens and the Hague'
       Convention. Latin American Position, OAS/Ser.Q, CJIIdoc.2/00, March 3, 2000.
   e Proposal for an Inter-American       Convention to Fight the Use of Tobacco.
       The Use of Tobacco in Latin America and its Possible Control. OAS/Ser.Q,
       eJI/doc.1I00, March 3 2000.
Panama:
    • Law 32 of June 26, 2006 Establishing Rules for the Resolution of International
        Conflicts in Matters of Private Law and Determining other Issues.
    • Bill Amending Law 45 of October 31, 2007, Adding Art. J 25 on International
        Consumer Litigation.
    • Law 19, of February 18,2008, allowing foreign plaintiffs.
Parlatino:
    • Model Law on International Jurisdiction and Applicable Law to Tort Liability.
Peru:
    • Draft Law on International Litigation.

APPEARED AS EXPERT
   • Law of France. Express One International, Inc. v. Caisse Nationale de Credit
     Agricole. US Bankruptcy Court for the Eastern District of Texas, Sherman
     Division. Case No. 95A 1189. (1999).                                     .
   • Law of Ecuador. Carlos Zambrano Ferrin et al. v. Million Air, Inc. et al. Circuit
     Court of the 11th Judicial Circuit, in and for Miami Dade County, Florida. General
     Jurisdiction Division. Case No. 98-22638 CA 15. (1999).
   • Law of France. MGE UPS Systems, Inc. v. Fakouri Electrical Engineering, Inc.
     et al. US District Court for the Northern District of Texas, Fort Worth Division.
     Civil Action No. 4-04CV -445- Y. (2005 - 2006).
   • Law of Venezuela. Banco Standard Chartered, S.A. v. Stone Container
     Corporation. US District Court, Northern District of Illinois, Eastern Division.
     Case No. 00-C-0274. Venezuelan law. (2000).
   • Law of The Philippines. Antonio Omus v. Royal Caribbean Cruises Ltd. Circuit
     Court of the 11th Judicial Circuit, in and for Miami Dade County, Florida. General
     Jurisdiction Division. Case No. 00-7612 CA 21. Law of the Philippines. (2000).
   • Law of Costa Rica. Super Helechos, S.A. et al. v. E. J Du Pont de Nemours &
     Company, Inc. et al. Circuit Court of the Eleventh Judicial Circuit in and for
     Miami-Dade County, ~lorida. Case No. 01-06932 CA 23. (2001).


                                           4
   •   Law of Peru. Julio Alberto Lira Garcia v. Ravenscroft Shipping, Inc. et al.
       Circuit COUliof the 11th Judicial Circuit, in and for Miami Dade County, Florida.
       General Jurisdiction. Case No. 01-6665 CA 04. (2002).
   •   Law of Venezuela. Carolina Pru Bellorin et al. v. Bridgestone / Firestone
       Corporation et al. District Court of Dallas County, Texas, 116th Judicial District.
       Case No. 02-03033-F. (2002).
   •   Law of Panama. Central de Finanzas, S.A. v. Bridgefarmer & Associates, Inc.
       US District COUli for the Northern District of Texas, Dallas Division,. Cause No.
       3-01-CV-1841-R. (2002).
   •   Law of Honduras. Fantome, S.A. et al. v. Sarah Frederick et al. US District
       COUli, Southern District of Miami. Miami Division "In Admiralty". (2002).
   •   Law of Guatemala. Margarita Perez Mendez et al. v. Teledyne Technologies,
       Inc. et al. US District COUlifor the Southern District of Texas, Corpus Christi
       Division. Civil Action No. C-O 1-226. (2002).
   •   International and comparative law. Holly Ann Sacks et al. v. Four Seasons
       Hotels et al. U.S. District Court for the Eastern District of Texas. Case No. 5:04-
       cv-073. (2005).
   •   Law of Nicaragua. Martha A. Downs Callaso, as Personal Representative of the
       Estate of William Smith, deceased v. Morton & Company et al. Circuit COUliof
       the 11th Judicial Circuit, in and for Miami Dade County, Florida. General
       Jurisdiction. Case No. 01-10488 CA 02. (2002).
   •   Law of Argentina. Juan Carlos Esteban v. Maria Laura Beade. US District
       COUli. Middle District of Florida. Orlando Division. Case No. 6:03.CV-408-0RL-
       18-DAB. (2003).
   •   Law of Panama. Intcomex Holdings, LLC v. Grant Thorton International and
       Grant Thorton LLP. Circuit Court of the 11th Judicial Circuit, in and for Miami
       Dade County, Florida. Case No. 03-03543 CA 06. (2005).


PUBLICATIONS
Books
   • OHADA, Traites, Actes Uniformes et Reglements Annates, Paris 2013,2014.
      Co-author.
   • Dahl's Law Dictionary. Spanish - English and English - Spanish. USA, 1992,
      1995,1999,2010.    Available in LEXIS.
   • Dahl's Law Dictionary. French - English and English - French. 1995, 1998,
      2001,2007 USA, France. Available in LEXIS.
   • Costa Rica, Family and Succession Law. International Encyclopaedia of Laws,
      The Hague, 2003. Co-author.
   • McGraw-Hili's Spanish ami English Law Dictionary, August 2003.
   • Legal Accountability for Human Rights Violations in Argentina: One Step
      Forward and Two Steps Backward. 8 Human Rights Law Journal, 283 - 477
      (1987) [Co-author]
   • Multinational Corporations. Investments, Technology, Tax, Labor and
      Securities: European, North and Latin American Perspectives. Co-editor (USA,
      1986). Reviewed: Revue International de Droit Compare (France), April - June

                                            5
           1987, Nr. 2, at p. 517 (by Andre Tunc).
    •   West's Law ami Commercial Dictionary in Five Languages. English, Spanish,
        French, Italian and German, in two volumes. Senior editor (USA, 1985).
        Reviewed: The American Journal of Comparative Law, vol. 34, Summer 1986,
        Nr. 3 (by Thomas Reynolds). Available in WESTLAW.
    •   Soviet Private Law" (Argentina, 1981).

Articles
    •   Forum Non Conveniens, Latin America and Blocking Statutes. 35: 1 Inter-
        American Law Review 21 - 63 (2003 - 2004).
        http://repository.lavv.miami.edu/cgi/viewcontent.cgi?article=1189&context=umial
        r
   •    International Commercial Arbitration. On-Line course for Salamanca
        University, Spain (2003).
   •    International Torts: A Latin American Point of View. XXVII (2000) Curso de
        Derecho Internacional, Inter-American Juridical Committee, Organization of
        American States, 563 - 578. Corresponding course taught in Rio de Janeiro,
        Brazil.
   •    The Protection of People, Natural Resources and the Environment Through
        International Law. * XXVI (1999) Curso de Derecho Internacional, Inter-
        American Juridical Committee, Organization of American States, 359 - 365.
        Corresponding course taught in Rio de Janeiro, Brazil.
   •    USA: Bankruptcy Under Chapter 11**,5 International Business Law Journal,
        555 - 566 (1992)
   •    The Influence and Application of the Standard Penal Codefor Latin America,
        17 American Journal of Criminal Law 235-285 (1990).
   •    U.S. Restrictions on High Technology Transfer. Impact Abroad and Domestic
        Consequences. 26: 1 Columbia Journal of Transnational Law, 27-52 (1987).
   •    Socialist Law in the Americas. Theforeign Trade Point of View. 3:2
        Connecticut journal of International Law, 273 - 309.
   •    Enforcement of American Judgments in Spain. 5 Boston University
        International Law Journal, 29 - 57, (1987).
   •    International Commercial Arbitration in Cuba. A Convergence of Soviet and
        Latin American Trends. Lawyer of the Americas 441-466 (1984 ). [Co-author].
        Republished in 7 Modern Legal Systems Cyclopedia 66-89 (1985).
   •    Argentina's System of Foreign Investments. 6 Fordham International Law
        Journal 33 -71 (1982-83).

Notes and Translations
   •    SUI'un droit europeen du contrat, IABA XL Conference,
   •    French Contract Law - Similarities and Differences with the U.S. System,
        Texas Transnational Law Quarterly, vol. 13, No.4, June 1998, pp. 3 - 9.
   •    Criminal Liability of Enterprises in French Law, Texas Transnational Law
        Quarterly, vol. 12, No.3, October 1995, pp. 46 - 50.
   •    Simplified Corporations in France, Texas Transnational Law Quarterly, vol. 10,


                                               6
       no. 2, May 1994, pp. 11 -12.
   •   France, Latest Developments, Securities Law, 24:3 The International Lawyer,
       817-824 (1990).
   •   France, Consumer Law, 24: 1 The International Lawyer, 269 - 274 (1990).
   •   France, New Statutes, 2: 1 The International Lawyer, 577-582 (1988).
   •   France, Competition Law, 22:2 The International Lawyer, 217-221 (1988).
   •   The Use of Arbitration in Cuba: International Solutions to Solve Domestic
       Problems *. ABA Section of International Law and Practice, Conferencia sabre
       Arbitraje Internacional, 153 -164 (1988). Republished in Arbitraje Comercial y
       Laboral en America Central, ABA Section of Int'l Law and Practice (USA 1990).
   •   Argentina: Judgment on Human Rights Violations by Military Leaders.
       Introductory Note and Translation. 26 International Legal Materials, 317-372
       (1987).
   •   Procedural Law, a Latin American Bibliography. Encyclopedia Britannica
       (1987)
   •   Argentine Draft Code of Private International Law. An Introductory Note and
       a Translation. 24 (2) International Legal Materials 269-291 (1985) .
   •   Enforcing a Foreign Judgment in Spain. West's International Law Bulletin, 25
       (Spring 1984).
   •   Telex Contracts in English Law, Place of Formation. West's International Law
       Bulletin, 26 (Winter 1984).
   •   Latin American Trends in Foreign Sovereign Immunity. Wests's International
       Law Bulletin, 24 (Winter 1984).
   •   Handbook on International Maritime Law. Argentine Section. (The
       Netherlands 1983). [Co-author].
   •   Contracts with the U.S. and the U.S.S.R. Six Points of Comparison * D. La Ley,
       61 (1981), (Argentina).
   •   International Commercial Arbitration in the U.S.S.R. 78 The Law Society's
       Gazette, 636 (1981), (England).
   •   Argentina's New Promotional Mining Regime. 8 Bulletin of Argentine Legal
       Development, 1 (1980), (Argentina).
   •   Private International Law, a Comparative Glance* A La Ley, 812 (1978),
       (Argentina).
   •   One Aspect of the English Common Law, a Divided Profession * 54 Juris, 15
       (1977), (Argentina).

Book Reviews
   •   Droit des AJJaires. 25 The International Lawyer 295-297 (1991).
   •   Economic Integration Among Developing Nations: Law and Policy. 2 Latin
       American Legal Link (1987).
   •   Legal Aspects of Doing Business in Latin America. 2 Latin American Legal
       Link, 35 (1986).
   •   U.S. Claims Court Reporter. West's International Law Bulletin, 16 (Winter
       1984).
   •   El Derecho en el Socialismo Desarrollado. 10 Review of Socialist Law, 91

                                           7
       (1984).

Editorial Work
   • Latin American Legal Link, co-founder and editor, (1984-1986).

LAW PROFESSOR
USA
   • Southern Methodist University, School of Law (Dallas). Adjunct profe.ssor of
     Mexican law. Associate Director of the SMU NAFTA Law Center. (Spring 1997
     - 1998).
   • Texas Wesleyan University. Adjunct professor of Comparative Business Law
     and of Mexican Law. (Fall 1991 - 1993).
   • University of Texas at Dallas. Adjunct professor of International Business
     Transactions. (Summer 1993).
  • Southern Methodist University, ScllOOI of Law. (Dallas) Visiting professor.
  • International Litigation and Arbitration, Comparative Trade Law. (Spring 1987).
  • University of San Diego, School of Law. Teaching East/West Trade Law, in
     Russia and in Poland. (Summer 1986 and 1987).

Europe
   • Paris University (France). American Business Law. (2009 - 2010).
   • Conservatoire National Des Arts et Metiers (Paris, France). One annual course
       on American law, to French attorneys. (October - November 1986 - 2007).
   • Paris Bar. American law, to French attorneys. (October 1993 - 1995.).
   • Universite de Cergy-Pontoise, School of Law. American business law. (October
       1995).
   • Universite de Bordeaux, School of Law. Visiting professor. American business
       law. (Summer 1985). .
   • Universidad de Barcelona. School of Law. Visiting Professor. Russian and
       American Conflict of Laws. (Summer 1984).

Latin America
    • Puerto Rico University, School of Law. Law Professor, Comparative Business
       Law, International Business Law, Doing Business in Eastern Europe and
       Introduction to Law. (Spring and Fall 1989).
    • Sao Paulo University, School of Law (Brazil). Visiting professor teaching U.S.
       Business Organizations. (August - September 1986).
    • Buenos Aires School of Law (Argentina). Adjunct professor of law teaching
       Commercial Law and Conflict of Laws. (January - December 1975:- 1976.).

PODIUM
  • The Implementation of the UN Principles on Business and Human Rights in
     Private International Law, Swiss Institute of Comparative Law, Lausanne, 10
     October 2014.
   • Legal Myths and Reality. Guatemalan Bar Association, October 23,2013.


                                           8
•  Proposed Human Rights Exception to the FSIA,U.S. Congress, October 8,
   2013.
• International Litigation and Arbitration, Zaragoza Bar Association, Spain,
   September 2013.
• International Commercial Arbitration, Guatemalan Bar (Guatemala), November
   2012.
• Approaches to International Litigation, Colombian Bar (Bogota), November
   2012.
• Model Law for International Litigation in Latin America*. 40th IABA
   Congress, Madrid, Spain, June 24,2004.
• Amending the Latin American Codes of International Civil Procedure in
  Matters of International Litigation *, IABA 39th Conference, New Orleans, June
   18,2003.
• The Free Trade Agreement Chile - USA, IABA 39th Conference, New Orleans,
  June 19,2003.                        .
• What To Do (and Not 'To Do) When a Latin American Case Hits Your Desk,
  Inter-American Bar Association, Washington, DC, May 30, 2003.
• International Business Law and Arbitration, University of Lima, Peru, May 19 -
  20,2003.
• How Napoleonic Codes Work, American Translators' Association, New Jersey,
  May 5, 2003
• Legal and Business English *, Peruvian-American Chamber of Commerce, Lima,
  Peru, 3 - 5 March, 2003.
• Latin America and Blocking Statutes, University of Miami Law School, March
  28,2003.
~ Cours de Droit des Affaires Americain?", CNAM, Paris, France, October 28-
  November 25, 2002.
• Sltuacion Economica en Iberoamerica. Riesgos y Garantias, Inter-American Bar
  Association, Granda, Spain, November 15,2002.
• Tour d'Horizon du Droit des USA **, CEPRIM, Paris, France, November 23,
  2002.
• Les Societes dans Ie Droit Americain" *, Centre de Formation Professionnelle
  Notariale de Paris, France, November 19, 2002.
• Enjeux Financiers et Ethique**, Centre National des Professions Financieres,
  Paris, France, November 6, 2002.
• Lobbying in American Law*, UCES, Buenos Aires, Argentina, October 10,2002.
• Litigation in Cases of International Pollution. American University, Washington
  College of Law, June 4, 2002.
• International Law: Regionalism and Universalism. Inter-American Juridical
  Committee, OAS, Rio de Janeiro, Brazil August, 2000.
• International Law and the Protection of Natural Resources, the Environment
  and Health Inter-American Juridical Committee, OAS, July, 1999, Rio de
  Janeiro, Brazil.
• Doing Business in Mexico. Dallas Bar Association. September, 1993.
• Copyright Protection and Piracy. * El Salvador Bar Association, San Salvador,

                                      9
          September, 1992.
     •    Entering and Remaining in the American Market. * E.A.D.A. Barcelona, Spain,
          October 1991.
     •    Legal Aspects 0/ Doing Business with the European Community. Paper on
          Merger Control and Competition Law, Dallas Bar Association, International Law
          Section, January 1991.
     •    New Dimensions in International Trade. International Trade Summit. (October,
          1990, Arkansas).
     •    International Arbitration. Puerto Rico University School of Law. Co-chairman
          of conference on The Civil Code Centenary. (November, 1989).
     •    International Solutions to Solve Domestic Problems. A.B.A. Conference on
          International Commercial Arbitration. (March 1988, Costa Rica) (Published).
     •    Socialist Law in the Americas. UCLA School of Law, Conference on Latin
          American Law. (November 1986). (Published).
     •    U.S. Restrictions on Exports/rom Third Countries 0/ U.S._Technology. Madrid
          University, School of Law (Spain). Private International law convention (May,
          1986). (Published).
     •    Reorganization 0/ Multinational Enterprises: Legal and Tax Aspects.
          Louisiana State University, Law Center. Co-Chairman of conference. (October,
          1984). (Published).

MEMBER OF
  • Inter-American Bar Association, Adjunct Secretary General (2004-2007);
    Secretary General (2013 - 2015 ).
  • Inter-American Legal Affairs Committee of Washington D.C. Bar, Vice-President
    (2011 - 2013); President (2013 - 2015).
  • Founding member of Cercle K-2, a think tank headquartered in Paris, France.
    https://www.cercle-k2.fr!(2014   - )
  • ICDR, Neutral's List, Arbitrator (2007
                                        ,   - 2012).
  • Russian-American Chamber of Commerce (President 1992 - 1994).
  • USA-Argentine Chamber of Commerce (President 1994 - 1996).
  • Advisory Council of the Dallas Bar Association, International Law Section (1992
    - 1996).
  • American Society of International Law (1994 - 2002).




*   In Spanish   **   In French




                                            10
   EXHIBIT 2




    Resume of

Arnau Muria Tunon
                                             Arnau Muria Tunon
             Bogota 3155 . Dpto. 30 I . Col. Colomos-Providencia            . Guadalajara, Jalisco .
                                      amuria@yahoo.com        . 3642.3929


Law Professor
University of Guadalajara, Jalisco (2004 -               ). Teaching   International    Conflict of Laws and
International Business Law.
Teaching Citizen's Lawat the Master's Program.


Mexican Senate.
Advisor to the PRI in legal matters. (2012 - ).


Attorney.
Guadalajara, Jalisco. Administrative       law, civil law, litigation, foreign investments. (2003 -    ).


Staff Attorney.
Permanent Bureau at The Hague Conference of Private International Law. Working on matters of
International Contlict of Laws, International Procedural Law, and Family Law. The Hague, Holland
(2000 - 2003).


Associate Attorney.
At the law firm of Garcia Barragan y Villela Abogados,             S.c. Corporate law. Contracts.      Foreign
investments. Mexico, D.F. (1998-1999).
At the law firm of attorney Miguel Claudio Jimenez Vizcarra (1993-1997)


Electoral Board Officer.
Electoral Commission     for the Federal District of Mexico City. (1997).


Education.
Escuela Libre de Derecho. Diploma on International Business Law. Mexico, D.F. (1998-1999).
Pittsburgh University. Master on International and Comparative         Law. (1997 - 1998).
The Hague Academy of International            Law. Course on Public International        Law and on Private
International Law. (200 I - 2002).
University of Pompeu Fabra, Barcelona,          Spain. Master in International       Relations, specialty law.
(1999 - 2001).
University of Guadalajara.    J.D. Graduation thesis on State Liability for Illegal Administrative          Acts ..
( 1997).
Harvard University. Introduction to American Government and US Foreign Policy. (1994).


Scholarships for master's studies.
MacArthur/Ford/Hewlett       Foundation.
Magdalena O. Vda. de Brockmann Foundation.
Concejo Nacional para la Ciencia y la Tecnologla (CONACYT).
Casals, of the Generalitat de Catalufia, Spain ..


Distinctions.
Pace University, N.Y. Second place in competition on the Convention for the International      Sale of
Goods. (1998).                   '
First Prize for the best legal thesis of 1997, Guadalajara University.
Scholarship for outstanding students, obtained twice, 1994 and 1995. Guadalajara Uni~ersity.
Mariano Otero Prize, awarde to the highest GPA. (1994).
International Book Market. First Prize for short stories (1990).
Champion at the Mathematics Olympic Games (1989).


Other Activities and Associations.
Columnist at the El Occidental news paper.
Sworn translator, Judiciary Power of Guadalajara:    English and Spanish.
American Association of Private International Law, full member.
Mexican Academy of Private International and Comparative        Law, full member.
Mexican Bar Association, full member.
SERV   As International, full member.

Foreign Languages.
English, fluent.
Catalan, fluent.
French, intermediate.
Portuguese, intermediate.
                  EXHIBIT 3




 ORGANIZATION OF AMERICAN STATES
        INTER-AMERICAN JURIDICAL COMMITTEE




                                             CJJTI

PROPOSAL FOR AN INTER-AMERICAN  CONVENTION
    ON THE EFFECTS AND TREATMENT OF THE
        FORUM NON CONVENIENS THEORY
               ORGANIZATION OF AMERICAN STATES
                           INTER-AMERICAN JURIDICAL COMMITTEE




                                                                                CJJTI
55th Regular Period of Sessions                                            OEA/Ser.Q
August 2 to 27, 1999                                                       CJI/doc.29/99
Rio de Janeiro, Brazil                                                     14 July. 1999
                                                                           Original: Spanish




              PROPOSAL FOR AN INTERAMERICAN  CONVENTION
                 ON THE EFFECTS AND TREATMENT OF THE
                     FORUM NON CONVENIENS THEORY


                          (Prepared by Dr. Gerardo Trejos Salas)

                 FORUM NON CONVENIENS               IN LATIN AMERICA

         This study outlines the effects caused in the region by forum non conveniens and
it describes the reactions triggered in several countries and international organizations. In
order to explain the issues involved more realistically, the text is illustrated by the
following cases where forum non conveniens was applied: Piper Aircraft v. Reyno',
Delgado v. Shell Oil Co. ii, Gerardo Dennis Patrickson et al v. Dole Food Company, Inc.
et al'" and Ruth Linares Polanco v. H B. Fullerlv.

         Latin America reacted against forum non conveniens with an overwhelming
rejection. Several countries produced official opinions from the respective Attorney
General's Office, judgments that have even reached the Supreme Court, Congressional
Resolutions, including that of an international organization and even laws specifically
enacted to counter this issue". In spite of this, forum non conveniens continues to cause
problems in the region, as the following shows.

                 I. ILLEGALITY OF AND PROBLEMS CAUSED BY
                            FORUM NON CONVENIENS

       Several are the reasons why forum non conveniens contravenes Latin American
law and, consequently, it cannot generate jurisdiction. These reasons are so strong that
Latin American judges just have to cite a few -constitutional, procedural, a special
statute- before reaching the conclusion that the case should be dismissed. Notice first how
this doctrine operates as a whole:

         The foreign judge has full jurisdiction and lacks any personal reason (e.g. kinship,
degree of friendship, etc ... ) to decline the case. However, he decides, against the
plaintiff's will, that there is another court -with concurrent jurisdiction- that is more
convenient and sends the plaintiff there, to file a new claim. When the "more convenient"
court is abroad, the original judge does not send any rogatory letter and does not request
the consent of the foreign authorities in any other wall. He simply orders the plaintiff to
file a new claim in another country'?'. Frequently the original judge imposes certain
conditions -for instance that the claim be filed within 30 days, that defendants cannot
raise certain exception -e.g. statute of limitations-, that to return to the original court it is
necessary to have a judgment from the Supreme Court of the second country establishing
lack of jurisdiction, etc ...

       Under such system, Latin American plaintiffs must refile their claim in their
country of origin, with the following peculiar results:

        a) The original judge continues to have underlying jurisdiction and it is normal
that the parties appear before him from time to time, to complain about what the other
party does or omits doing in the second court, to request reconsideration of a previous
ruling, etc. . .                '

        b) The plaintiffs are gagged, not being able to tell the judge of the second court
that they are there against their will or that they believe that such judge should rule for
lack of jurisdiction.

        c) When plaintiffs return to the original court with a ruling for lack of jurisdiction
from the second court, it becomes standard for defendant to object and to request that the
original court consider the dismissal by the second court as "inappropriate", "abusive",
"the result of procedural bad faith", etc ... vi~i

         A foreign judge who unilaterally imposes workix on a Latin American colleague is
acting as if he were hierarchically superior, The foreign judge who imposes, again
unilaterally, the commission of certain procedural acts in Latin America, establishing
conditions, terms, etc ... behaves in a no less offensive way.

       Briefly stated, the following are some of the specific violations caused by forum
non conveniens:

1. Constitutional Law. Forum non conveniens contravenes about six principles usually . /'
found in Latin American constitutions":                                             j:{
a) Sovereignty. It is injurious for a country that a foreign judge unilaterally imposes the
commission of certain procedural acts in such country, for instance the filing of a claimxi.



                                                                                                 2
b) Supremacy of international treaties. Forum non conveniens violates the supremacy of
several bilateral and multilateral international treaties.

         - Bilateral treaties. No fewer than eleven Latin American countries have signed
bilateral treaties of Friendship, Commerce and Navigation with the United States of
Americaxii. Typically these conventions include an article that assures the access by the
nationals of one country to the courts of the otherxiii. " ... it is not clear how the
application of a judicial theory (t'forum non conveniens "), inferior in ranking to
international treaties, can close the doors of American courts to citizens of my
country. »xiv
         - Multilateral treaties. Forum non conveniens also violates the following
multilateral treaties that guarantee a free access to the courts of law:

       a) Convention Regarding the Status of Aliens in the Respective Territories of the
Contracting Parties (art. sty,             .
       b) American Declaration of the Rights and Duties of Man (arts. II, XVII and
xvnn=',
        c) Universal Declaration of Human Rights (arts, 7 and    st
                                                                  vii,and
        d) finally, as forum non conveniens discriminates against the foreign plantiff, it
also violates the Charter of the Organization of American Statesxviii.

        Since forum non conveniens is an institution of the internallawxix of some
countries, it cannot be used to block the rights stemming from international conventions -
whether bilateral or multilateral-, as is clearly established by the Vienna Convention on
the Law of Treaties":

c) Equality before the law. This concept as a strong constitutional root in Latin American
countriesxxi. Forum non conveniens cases are based on the Piper case which explicitly
and clearly discriminates against the foreign plaintiff?", This discrimination is not even
covert and it appears .from the mere reading of forum non conveniens judgments'?". A
Latin America judge cannot accept and give continuity to a claim whose legal basis is a
foreign judgment that discriminates procedurally against the plaintiff, because the latter is
a foreigner in the original court. Such discrimination against the foreign plaintiff is so
generalized in some countries that it is even held as correct and forum non conveniens
judgments explain it clearly, as if it were something very naturafxiv.

d) Lis pendens. Some countries have constitutional clauses establishing that: "No court
can hear cases pending before another. »xxv

e) Removal of a judge with jurisdiction. Another principle found in several constitutions
is that: "No person can be removed/rom the judge with jurisdiction »xxvi Some countries
include such principle in their codes of civil proceduref?",

j) Principle of legality. Obviously, forum non conveniens is an unknown theory in Latin
 American systems. Accordingly, it cannot be a factual basis to generate jurisdiction'Y'",



                                                                                             3
j) Jurisdiction and service. In Latin American law the court has jurisdiction or not,
 according to what the law determines. If the defendants have or have not been served is
 an independent factor, unrelated to jurisdiction. The service of summons and of the claim
 causes important procedural consequences. For instance, it sets a time limit to answer.
 However, the service of summons is not a basis for jurisdiction. The fact that the
 defendant promises, before the first court, that he will accept service of summons from
 the second court, is not a jurisdictional basis eitherxliii.

k) Promises to submit are inoperative. An example of how this topic causes confusion in
the common law is seen when the second court assumes that, not the submission but the
mere statement about having the intention to Isubmit is procedurally relevant and should             . //
be informed to the judge in the second court" IV.                                                   !%
         That is not so. The promises made to a foreign court, about the wish to submit to a
Latin American jurisdiction do not generate jurisdiction in Latin America. Such
promises, regardless of how sincere, are procedurally irrelevant. What could be relevant
is the actual submission, express or implicit. However, the constitutional and procedural
impediments that forum non conveniens creates in Latin American legal systems renders
the actual submission inoperative.           .

I) Claims ruled by the corresponding    law. Eventually the plaintiffs would return to the
first court with a judgment for lack of jurisdiction from the second court. It is not unusual
then for defendants to charge plaintiffs with having drafted the second claim "in bad
faith", by including or omitting certain information. The truth is that the Latin American
codes of civil procedure have sections where the requirements that the claim must contain
are specifically mentioned. For instance: Argentina, mi. 330; Bolivia, art. 327; Costa
Rica, art. 290; Ecuador, art. 71; Panama, art. 654, etc ...

         In these legal systems it is nor a requirement to state if defendants have expressed
or not their intention to submit to such jurisdiction. Accordingly, it seems wrong that the
court of the first country could impose certain consequences against plaintiff for not
having done, before the second court, what the law of that country does not require. The
plaintiffs cannot be forced to litigate before the second court abiding by rules and
requirements that are not contemplated in such legal system'".

m) Illusory submission by defendants. In Patrickson and Delgado it can be seen how
forum non conveniens lends itself for the defendants to litigate abroad without running
the risk of paying an adverse judgment. Such technique works in the following way:

         To obtain that the case be moved to another country the defendants promise the
first judge that they will submit to the jurisdiction of foreign courts. Following the
procedure of the first country, defendants file a pleading before the first court where the
promise to submit is recorded. But in the same pleading, together with the promise of
"submission" to the foreign court, defendants "reserve the right to contest" a final
judgment of such foreign court, before the first court and for legal grounds of the first
country'!".



                                                                                                7
                 ORGANIZATION OF AMERICAN STATES
                              INTER-AMERICAN JURIDICAL COMMITTEE




                                                                                               CJJli
56th REGULAR PERIOD OF SESSIONS                                                            OEA/Ser.Q
March 20-3 I, 2000                                                                       CJI/doc.2/00
Washington, DC, USA                                                                      3 March 2000
                                                                                         Original: English
                                                                                        Restricted"


               PROPOSAL FOR AN INTER-AMERICAN   CONVENTION
                   ON THE EFFECTS AND TREATMENT OF THE
                       FOR UM NON CONVENIENS THEORY



                             (Presented by Dr. Gerardo Trejos Salas)

                                   Forum non conveniens and the
                                          Hague Convention.
                                       Latin American Position


                                    I.INTRODUCTION
                          ILLEGALITY AND PROBLEMS CAUSED
                              BY FORUM NON CONVENIENS

          During the previous period of regular sessions a report on forum non conveniens
(FNC) was introduced (OEA/Ser. Q, CIJ/doc.29/99, July 14, 1999). Some of the
illegalities and problems caused by said theory can be summarized as follows:

         No jurisdiction if no acts performed in the country. Latin American
jurisdictional notions, not surprisingly, are different from those in Common Law systems.
By a US standard, Latin American jurisdiction seems more restricted. Absent, for
instance, is the American theory of "long-arm jurisdiction", or the idea that service of
process confers jurisdiction. Also, when a person has performed all the activity in
question outside the Latin American country, there would be no national jurisdiction
either'. If adverse effects follow from conduct deployed abroad, Latin American law                           f



I For instance, the Code of Civil Procedure of Costa Rica states that there is local jurisdiction" When the
action is based on a/act occurred or in an act that took place in Costa Rica." (art. 46, para 3). .Such
assumes that jurisdiction lies in the foreign country where the acts occurred. Conversely,
Latin American countries would have jurisdiction over acts performed there, even if the
consequences in question take place abroad.

        In spite of this, some foreign judges persist in applying FNC and ordering that
lawsuits be filed in Latin America when the relevant acts took place abroad, although
there is no jurisdiction in Latin America.

         Lack of jurisdiction if no power to constrain. As it can be seen in footnotes 60
and 61, together with their accompanying text, the FN C defendant is not bound to obey a
final judgment from the second court. That is also a reason causing lack of jurisdiction,
since jurisdiction cannot exist "without the power to compel the enforcement of what has
been ordered." (M. Morales Lebron, Diccionario Juridico Segun la Jurisprudencia del
Tribunal Supremo de Puerto Rico, p. 563, San Juan, 1977).

        Jurisdiction is terminated. Even when there is concurrent jurisdiction, the claim)
filed before one court extinguishes the jurisdiction of the other court'.

        And is not reborn. For jurisdiction to be reborn in Latin America, there has to be
a (voluntary) nonsuit of the first case and annew (voluntary") filing of the claim before
the second court. A FNC filing does not generate jurisdiction.

       Despite such a clear rule, some foreign courts persist in applying FNC. When the
Latin American court dismisses the case for lack of jurisdiction, they refuse to accept the


interpretation was held in Carlos Luis Abarca et al. v. Shell Gil Company et al., affirmed by the Costa
Rican Supreme Court on 2/21/96. In Brazil, art. 88~ of the Code of Civil Procedure, states exactly the same
principle: "Brazilian courts have jurisdiction when ... III The case is based on afact that.occurred, or in an
act that was performed in Brazil." In Honduras, mi. 146, first paragraph, of the Ley de Organizaci6n y
Atribuciones de los Tribunales, does' not grant jurisdiction against a corporation who did not perform any acts in
Honduras (Attorney General of Honduras, opinion of 6/2/95). According to the Attorney General of Nicaragua, in
his opion of 5/24/95, "The procedural rules 0/ our system do not grant jurisdiction to Nicaraguan courts against
manufactureres ... who have only made and sold their product abroad, without having pelf armed acts in Nicaraguan
territory. Code a/Civil Procedure, article 265, para. I" III Panama, there is a judgment from the Primer Tribunal
Superior de Justicia, of 4/18/95, stating that jurisdiction over foreign corporations lies: " ... with the court situated
where the corporations have their principal office." This precedent was followed twice in FNC cases, in 1995 and in
1999.                        .
2 Such a territorial notion has a political angle. It is a way of protecting the borders and the sovereignty of
the country concerned: by refraining-from judging acts performed abroad, under foreign laws, it is more
probable that foreign courts will refrain from judging acts that took place in our country. It is a variation of
the expression par in parem imperium non habet. In this way Latin America departs from French law,
where the plaintiff's nationality generates local jurisdiction, even for acts performed abroad (France, Civ.
Code, art. 14).
3 Once jurisdiction attaches, it cannot be altered, see for instance, Codes of Civil Procedure of Guatemala,
art. 5; Ecuador, 311.15 (see also Ecuadorian Constitution, art. 24, para. II); Honduras, arts. 138 and 141;
Panama, art. 253, Brazil, art. 87, Nicaragua, art. 255. The term of art for this is "prevencion", or
"competencia preventiva". From "prevenire", a Latin term meaning to arrive (venire) earlier (pre) and
consequently preventing or blocking the way for others.
4 It is so basic that a lawsuit cannot be ordered by the courts that Latin American procedural codes do not
bother to mention this principle. As an exception, the Code of Civil Procedure of Costa Rica elaborates
that "Nobody can be forced to file a lawsuit ... " (arts. 122 and 477).



                                                                                                                            2
 case, or they allow it to remain dormant for years. (For instance, see footnotes 15 - 18
 and their corresponding text.)

        Procedural freedom. FNCforces and/or constrains plaintiff to file the second
lawsuit. It is intolerable for a national judge to force or to constrain a citizen to file a
claim5. It is worse still if who forces and constrains is a foreign judge.

          Actor sequitur forum rei. The proper court for personal actions is the one of the
defendant's domicile6. A foreign court with jurisdiction cannot export its FNC theories
when they clash with this principle.

       Bilateral treaties with the USA. FNC is a domestic law. Consequently, it is
trumped by international treaties. It then follows that FNC cannot block access to the
courts which is, precisely, what these treaties guarantee".

         Sovereignty. A foreign judge should not try to impose, unilaterally, the
performance of procedural acts in Latin America, particularly when such conduct
breaches Latin American law". FNC cannot be exported ifit violates the second country's
laws 10.

        Equality before the law. This principle is a constitutional rule!'. FNC
discriminates openly against the foreign plaintifft", Logically, a Latin American judge


5  Latin American law knows the theory of acto personalisimo. These are acts where the free will of the
 person is so important that they cannot be forced upon anybody. Examples are marriage and the making of
 a will. No judge can order someone 1'0 get married, or to make a will. The filing of a claim falls in this same
 category. A Latin American judge cannot order anyone to file a claim. And with greater reason, a Latin
 American judge cannot preside over a lawsuit that has been filed following a foreign court's order. The
 functional equivalent of this would be to expect Latin American notions of forced heirship, in a US probate
 proceeding, just because the decedent was Latin. See also, for instance, the Constitution of Honduras, mt.
 70: cc ••• nobody can be forced to do what the law does not command, nor preventedfrom doing what the
 law does not prohibit." Obviously, FNC cannot breach this rule.
 6 It just suffices to mention article 323 of the Bustamante Code, adopted by Bolivia, Brazil, Chile, Costa
 Rica, Cuba, Dominican Republic, Ecuador, EI Salvador, Guatemala, Haiti, Honduras, Nicaragua,
 Panama and Peru. Latin American countries that have not adopted the Bustamante Code still follow the
 same principle. Example: Argentina, Code of Civil Procedure, alt. 5 (4) states that: "In personal actions
 stemming from civil liability [jurisdiction lies with the court] of the place where the facts occurred, or of
 the defendant'S domicile, as chosen bv plainti(f" (emphasis added).
 7 Vienna Convention on the Law of Treaties, art. 27. See, for instance, the Constitution of Honduras,        arts,
  16 and 18 (Supremacy of Treaties),
 8 In some treaties, the right of access to courts is unfettered. In others, access is granted on equal footing
 with nationals.
 9 For instance, the Constitution of Honduras,     art. 82, establishes that "The citizens of the Republic have
free access to the courts, to exercise their action in the way determined by the laws ", Obviously, said laws
 are Honduran, not the foreign ones.                                                               .
 10 Latin American codes, special statutes, judgments and opinions of Attorneys General say very explicitly
 that FNC violates important constitutional and procedural rules,
 II For instance, see the Constitutions  of: Brazil, art. 5; Costa Rica, mt. 33; Ecuador, art, 23(3);
 Guatemala, art. 4 and Honduras, art. 60, para I and 2, and art. 61.
 12 For instance, in Gerardo Denis Patrickson et al. v. Dole Food Company, Inc. et al., cuse Nr. 97-0156,
 before the United States District COUlt for the District of Hawaii, determines that "When the plaintiff is



                                                                                                                  3
cannot, and should not, become the successor, or the accomplice, of the procedural
discrimination initiated by theoriginal court. It should be added that the discrimination
against the foreign plaintiff that FNC perpetrates, also breaches important multilateral
treaties as, for instance, the OAS Organizational Charter             13•


         The first court remains as an appeals court for the second and it behaves as a
 Constitutional Court for the second country. Strange as it may seem, the final
judgment of the second cOUli, is not really final. According to American law such
judgment can still be challenged before the first court, and on grounds of American lawl4.
Final control over the case -ordering effectively that the defendant pay an adverse
decision- remains under the first court's control. The supposed "jurisdiction" and
"sovereignty" of the second court is just an illusion. This explains why Latin American
judges are not enthusiastic about accepting these cases.

         Lis pendens. 'While the case is being prosecuted in the second country, the FNC
dismissal could still be under appeal in the first country. Usually the second court is not


non-foreign, there is a strong presumption infavor of the plaintiff's choice of forum, which may be
overcome only when the private and public interest factors weigh infavor of trial in the alternative forum,
See Piper Aircraft Co. v. Reyno, 454 u.s. 235, 255-56 (1981). This is because "[wjhen the homeforum has
been chosen, it is reasonable to assume that this choice is convenient. " Id. When the plaintiff is foreign,
however, this assumption is less reasonable and the plaintiff's choice is afforded less deference, Id In
such cases, the showing required to obtain dismissal is reduced See Empresa Lineas Maritimas Argentinas
SA v. Schichau-Unterwesser A,G" 955 F2d 368 ts" Cir. 1992). (Bold added).
           The forum non conveniens judgment in Delgado v. Shell Oil Company, published in 890 F, Supp,
 1324 (S,D, Tex. 1995), says virtually the same.
           Another example is Ruth Linares Polanco, v. H. B. Fuller, cause Nr. 3-96-8, before the US
District Court, District of Minnesota, Third Division. A judgment of September 23, 1996, while applying
the theory of forum non conveniens states, at page 25, in reference to the Piper case, as follows:
           "The Court began its Otl'n analysis by noting that while a plaintiff's choice of forum was normally
entitled a strong favorable presumption, district courts are "fully justified" in according less weight to this
choice when the plaintiff is foreign. Id at 255-256. This is because it is much less reasonable to assume
that a foreign plaintiff has chosen an Americanforum for reasons of convenience. (Bold added).
       . At page 35, in the same ruling, an identical thought is expressed:
          "Plaintiff's continuing reliance on Reid-Walen is again misplaced, because the plaintiff in that
case was an American citizen, a fact which entitled the plaintiff to a strong presumption of deference in
her forum choice." (Bold' added).
13 Article 5(j) of the Chatter of the Organization of American States, re-numbered as 3(j) in its 1967
version, says as follows:
          "The American States proclaim the fundamental rights of the individual without distinction as to
race, nationality, creed or sex." [Emphasis added]. The United States ratified this convention first on June
19, 1951 (see U.S.T. 2394, T.I.A.S. Nr. 2361 and, after the Buenos Aires Protocol, the same text was
ratified by the United States on April 26, 1968 (see T.I.A.S. Nr. 6847. O.A.S.T.S. Nr. I-A, O.A.S.O.R.,
O.E.A./Ser.A/2.add2). The second draft of the convention entered into force in the United States on
February 27, 1970. All Latin American countries, with the exception of Cuba, are members of this treaty.
           It should be added that in 1959 the OAS created an Inter-American       Human Rights
Commission, whose goal was to further respect for human rights, expressly "those established in the
American Declararion of the Rights and Duties of Man." In 1967, when the OAS Charter was restructured,
the Inter-American Human Rights Commission was given the rank of "principal organ" (art. 51). Protecting
compliance with human rights falls within the purview of this Commission. (See Thomas Burgenthal, The
Revised OAS Charter and the Protection of Human "Rights 69 A.J. Int'I L. 828, 1975.)
14 See section VIII, below, for more detail.




                                                                                                             4
 informed about this appeal since the plaintiff is "gagged" by the first court and the
defendant does not want to jeopardize his possibility to remain in the second court. This
happened, for instance in the Delgado and in the Patrickson cases. The Latin American
judges in these cases could one day be informed, to their surprise, that a foreign court of
appeals has decided that the cases shall return to the first country.

         The judge who applies ,FNC resorts to an exceptional mechanism. Having
jurisdiction and not being disqualified by personal reasons he expects another judge to
take charge of the case. If the second court rules it has no jurisdiction, then first court
should reassume adjudicating the case. In ieEcuadorean Shrimp Litigation 1 5 this did not
happen. Here the case was dismissed on FNC and plaintiffs were ordered to refile in
Ecuador. The US court had established that it would reassume adjudicating the case if the
Supreme Court of Ecuador ruled for lack of jurisdiction. Eventually the Ecuadorian
Supreme Court upheld lower rulings for lack of jurisdiction and the case was brought
again before the US court. The American judge still refused to take the case based on two
reasons. One reason was that Ecuadorian law (law 55 and art 15 of the Code of Civil
Procedure) "has the effect of vitiating Florida law onforum non conveniens andforcing
Florida courts to accept jurisdiction ... " The second reason was that plaintiffs had acted
in bad faith by lobbying for, the enactment of Ecuadorian law 55, which destroyed the
FNC option.

       These two arguments are flawed and they illustrate why FNC cannot be exported.
The fact that said Ecuadorian laws "vitiated" Florida FNC law is not a reason to ignore
them. FNC is the subservient system to foreign law. It is not that foreign law should
accommodate FNC, but exactly the opposite should happen 16.

        The second argument also fails. Latin American constitutions allow, and even
encourage, people to present petitions to the authorities (derecho de peticionar a las
autoridades) 17. This is in fact one of the pillars of any democratic system. When plaintiffs
-Ecuadorian nationals- were sent to Ecuador they had a perfect right, while in Ecuador, to
lobby for whatever laws they wanted 18. It is politically incorrect for a foreign judge to
send plaintiffs to refile a lawsuit in Ecuador and to punish them later because they availed
themselves, while litigants in Ecuador, of rights granted by the Ecuadorian Constitution.


15 Case Nr. 94-10139 (27), Circuit Court of the I ih Judicial Circuit, in and for Broward County, Florida,
ruling of 9/24/99. Other times the foreign court does not openly reject the Latin American decision for lack
of jurisdiction, but it does not accept jurisdiction either, allowing the case to remain dormant for years. As
an example, see Delgado v. Shell- Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995).
16 FNC is based on the "availability"   of a foreign forum. FNC theory does not say that foreign laws that do
not accommodate FN C lawsuits shall be disregarded. FNC is subordinated to the existence of an alternative
available forum. It is not the other way around.
17 See, for instance, the Constitution of Honduras,     art. 80 "Any person '" has the right to present petitions'
to the authorities ... "
18 As the origin of the word indicates, lobbying was invented, and is widely practiced in the USA. In 1992,
a group of FNC defendants (Alfaro case) lobbied -successfully- to have Texas anti-FNC law abolished.
Tobacco companies are famous for lobbying the US Congress. They even lobby Congresses in Latin
America. No US court penalizes US corporations for lobbying. Why cannot Latin American plaintiffs do
the same in their own country?



                                                                                                                 5
              EXHIBIT 4




MEXICAN FEDERAL   RULES OF CIVIL PROCEDURE

       MEXICAN FEDERAL    CIVIL CODE

     MEXICAN FEDERAL     CONSTITUTION




                                             ,
                  MEXICAN FEDERAL RULES OF CIVIL PROCEDURE

Available at http://www.diputados..gob.mx/LevesBiblio/pdt/6.pdf
                                                                                                      f




                  CODIGO FEDERAL DE PROCEDIMIENTOS                     CIVILES




 ARTICULO 3°._ Las relaciones reciprocas de las partes, dentro del proceso, con sus respectivas
facultades y obligaciones asi como los terrninos, recursos y toda clase de medios que este C6digo
concede para hacer valer, los contendientes, sus pretensiones en ellitigio, no pueden sufrir
modificaci6n, en ningun sentido, por virtud de Jeyes 0 estatutos relativos almodo de funcionar 0
de ser especial de una de las partes, sea actora 0 demandada. En todo caso, debe observarse la
norma tutelar de la igualdad de las partes dentro del proceso, de manera tal que su curso fuera el
mismo aunque se invirtieran los papeles de los litigantes.

ARTICULO 7°._ La parte que pierde debe reembolsar a su contraria las costas del proceso. [... ]

ARTICULO 12.- No influyen, sobre la competencia, los cambios en el estado de hecho que
tengan lugar despues de verificado el emplazamiento.

ARTICULO 24.- Por razon de territorio es tribunal competente:
I.":El dellugar que el demandado haya sefialado para ser requerido judicialmente sobre el
cumplimiento de su obligaci6n;                     .
11.- El dellugar convenido para el cumplimiento de la obligaci6n;
111.- El de la ubicaci6n de la cosa, tratandose de acciones reales sobre inmuebles 0 de
controversias derivadas del contrato de arrendamiento. Si las cosas estuvieren situadas en, 0
abarcaren dos 0 mas circunscripciones territoriales, sera competente el que prevenga en el
conocimiento del negocio;
IV. El del domicilio del demandado, tratandose de acciones reales sobre muebles 0 de acciones
personales, colectivas 0 del estado civil;       .
V.- El dellugar del domicilio del deudor, en caso de concurso.
Es tarnbien competente el tribunal de que trata esta fracci6n para conocer de los juicios seguidos
VI.- El dellugar en que haya tenido su domicilio el autor de la sucesion, en la epoca de su
muerte, tratandose de juicios hereditarios; a falta de ese domicilio, sera competente el de la
ubicacion de los bienes raices sucesorios, observandose, en 10 aplicable, 10 dispuesto en la
fraccion III. A falta de domicilio y bienes raices, es competente el dellugar del fallecimiento del
autor de la herencia.
Es tambien competente el tribunal de que trata esta fraccion, para conocer:
a).- De las acciones de peticion de herencia;
b).- De las acciones contra la sucesion, antes de la partici6n y adjudicaci6n de los bienes, y
c).- De las acciones de nulidad, rescision y eviccion de la particion hereditaria;
 VII.- El dellugar en que se hizo una inscripci6ri en el Registro Publico de la Propiedad, cuando
 la acci6n que se entable no tenga mas objeto que decretar su cancelaci6n;
VIII.- En los actos de jurisdicci6n voluntaria, salva disposici6n contraria de la ley, es juez
 competente el del domicilio del que promueve; pero, si se trata de bienes raices, 10 es el dellugar
 en que esten ubicados, observandose, en 10 aplicable, 10 dispuesto en la fracci6n III.
 Cuando haya varios tribunales competentes conforme a las disposiciones anteriores, en caso de
conflicto de competencias se decidira a favor del que haya prevenido en el conocimiento, y
IX.- Tratandose de juicios en los que el demandado sea indigena, sera juez competente el del
 lugar en el que aquel tenga su domicilio; si ambas partes son indigenas, 10 sera el juez que ejerza
jurisdicci6n en el domicilio del.dernandante.

ARTICULO 166.- Una parte s610 puede presentar hasta cinco testigos sobre cada hecho, salvo
disposici6n divers a de la ley.

ARTICULO 323.- Con la demanda debe presentar el actor los documentos en que funde la
acci6n. Si no los tuviere a su disposici6n, designara el archivo 0 lugar en que se encuentren los
originales, para que, a su costa, se rnande expedir copia de ellos, en la forma que prevenga la ley,
antes de admitirse la demanda. Se entiende que el actor tiene a su disposici6n los documentos,
siempre que legal mente pueda pedir copia autorizada de los originales.
Si el autor no pudiese presentar los documentos en que funde su acci6n, por las ca1.fsasprevistas
en el articulo 213, antes de admitirse la demanda se le recibira informaci6n testimonial u otra
prueba bastante para acreditar los hechos por virtud de los cuales no puede presentar los
documentos, y cuando esta prueba no sea po sible, declarara, bajo protesta de decir verdad, la
causa por Ia que no puede presentarlos.

ARTICULO 324.- Con la demanda se acornpafiaran todos los documentos que el actor tenga en.
su poder y que hayan de servir como pruebas de su parte, y, los que presentare despues, con
violacion de este precepto, no le seran admitidos. S6lo Ie seran admitidos los documentos que le
sirvan de prueba contra las excepciones alegadas por el demandado, los que fueren de fecha
posterior a la presentaci6n de la demand a y aquellos que, aunque fueren anteriores, bajo protesta
de decir verdad, asevere que no tenia conocimiento de ellos.
Con las salvedades del parrafo anterior, tampoco se le recibira la prueba documental que no obre
en su poder al presentar la demanda, si en ella no hace menci6n de la misma, para el efecto de
que oportunamente sea recibida.

ARTICULO 328.- Los efectos del emplazamiento son:
1.- Prevenir el juicio en favor del tribunal que 10 hace;
1[- Sujetar al emplazado a seguir el juicio ante el tribunal que 10 emplaz6, siendo competente al
tiempo de la citaci6n;                            .
III.- Obligar al demand ado a contestar ante el tribunal que 10 emplaz6, salvo siempre el derecho
de promover la incompetencia, y .
IV.- Producir todas las consecuencias de la interpelaci6njudicial.

ARTICULO 561.- La obligaci6n de exhibir documentos y cosas en procesos que se sigan en el
extranjero no comprendera la de exhibir documentos 0 copias de documentos identificados por
caracteristicas genericas,
En ningun caso podra un tribunal nacional ordenar ni llevar a cabo la inspeccion general de
archivos que no sean de acceso al publico, salvo en los casos permitidos por las leyes nacionales.



                               MEXICAN FEDERAL CIVIL CODE

Available at httQ:llwww.diQutados.gob.mx/LeyesBiblio/pdf/2        241213.Qdf


                                   CODIGO FEDERAL CIVIL

Articulo 1161.- Prescriben en dos afios:
[...]
IV. La responsabilidad civil por injurias ya sean hechas de palabra 0 por escrito, y la que nace
del dana causado por personas 0 animales, y que la ley impone al representante de aquellas 0 al
duefio de estes.
La prescripcion comienza a correr des de el dia en que se recibio 0 fue conocida la injuria 0 desde
aquel en que se cause el dana; [... ]

Articulo 1158.- La prescripcion negativa se verifica por el solo transcurso del tiempo fijado por
la ley.

Articulo 1168.- La prescripcion se interrumpe:
1. Si el poseedor es privado de la posesion de la cosa 0 del goce del derecho por mas de un afio;
II. Por demanda u otro cualquiera genero de interpelacion judicial notificada al poseedor 0 al
deudor en su caso;
Se considerara la prescripcion como no interrumpida por la interpelacion judicial, si el actor
desiste de ella, 0 fuese desestimada su demanda; [... ]


                                 Mexican Federal Constitution

Available at: httQ:llwww.diputados.gob.mx/LeyesBiblio/htmll.htm


                                Constituci6n Federal de Mexico


Articulo 10. En los Estados Unidos Mexicanos todas las personas gozaran de los derechos
humanos reconocidos en esta Constitucion y en los tratados internacionales de los que el Estado
Mexicano sea parte, asi como de las garantias para su proteccion, cuyo ejercicio no podra
restringirse ni suspenderse, salvo en los casos y bajo las condiciones que esta Constitucion
establece.

l-..]
Queda prohibida toda discriminaci6n motivada par origen etnico 0 nacional, el genero, la edad,
las discapacidades, la condicion social, las condiciones de salud, la religion, las opiniones, las
preferencias sexuales, el estado civil 0 cualquier otra que atente contra la dignidad humana y
tenga por objeto anular 0 menoscabar los derechos y libertades de las personas.
                               ,




        EXHIBITS




MEXICAN SUPREME   COURT CASE
RESPONSABILIDAD       OBJETIVA.   COMPETENCIA      EN UN JUICIO.     EN CONTRA      DE
DEMANDADOS       CON DOMICILIOS     DIVERSOS SI EL ACTOR NO ELiGIO UN JUEZ QUE
EJERZA JURISDICCION      SOBRE ALGUNO      DE SUS DOMICILIOS.      CORRESPONDE AL
JUEZ DEL DOMICILIO      DE LOS DEMANDADOS        QUE PREVINO. (LEGISLACIONES DE
LOS ESTADOS DE JALISCO Y NAYARIT).



 De conformidad con 10 establecido por el articulo 24, fracci6n IV, del C6digo
 Federal de Procedimientos Civiles aplicable por estar en conflicto los c6digos
 procedimentales civiles de los Estados de Jalisco y Nayarit, cuando se ejerce una
 acci6.n personal como 10 es la responsabilidad objetiva originada en los dafios
 causados en un accidente de transite, sera competente el juez del domicilio del
 demandado. Ahora bien, si existen varios demandados con domicilios diversos las
 legislaciones procesales civiles de las entidades federativas citadas concuerdan en
 que sera competente el juez que del domicilio de alguno de los demandados haya
-elegido el actor. Sin embargo, si el juez elegido por el actor fue el del lugar en que
 ocurri6 el accidente de transite y que no ejerce jurisdicci6n sobre el domicilio de
 alguno de los demandados, ante la inexistencia en los C6digos de Procedirnientos
 Civiles de los Estados de Jalisco y Nayarit de una regia competencial para esta
 hip6tesis, resulta aplicable supletoriamente el articulo 24, fracci6n VIII, del C6digo
 Federal de Procedimientos Civiles que establece que cuando conforme a las reglas
 de competencia resulten competentes diversos tribunales, se decidira en favor del
 que haya prevenido en el conocimiento, de 10 que cabe concluir que cuando haya
 demandados con domicilios diversos sin que el actor haya elegido un juez que
 ejerza jurisdicci6n sobre alguno de sus domicilios, sera competente el juez que del
 domicilio de alguno de 16s demandados haya prevenido en el conocimiento del
 asunto.




 Competencia 7/89. Suscitada entre los Jueces Septimo de 10 Civil de Guadalajara,
.Jalisco y Mixto de Primera lnstancla de Santiago lxcuintla, Nayarit. 13 de julio de
 1989. Cinco votos. Ponente: Mariano Azuela Guitron. Secretaria: Marfa Estela
 Ferrer Mac Gregor Poisot
 Competencia civil 191/88.' Suscitada entre los jueces Septimo de 10 Civil de
 Guadalajara, Jalisco, y Mixto de Primera lnstancia de Santiago lxcuintla, Nayarit. 13
de julio     de   1989.   Cinco    votes.     Ponente:    Mariano   Azuela   Guitron.   Secreta ria:
Lourdes Ferrer Mac Gregor Poisot.
vease: Semanario Judicia! de ta Federacion, Septima Epoca,                   volurnenes 217-228,
Cuarta parte, pagina 287.
Netas:
En el lnforme       de 1989, esta tesis aparece          bajo el rubro    "COMPETENCIA      EN UN
JUICIO      DE RESPONSABILlDAD              OBJETiVA     EN CONTRA       DE DEMANDADOS         CON
DOMIClUOS         DIVERSOS SI EL ACTOR NO EUGIO UN JUEZ QUE EJERZA JURISDICCION
SOBRE ALGUNO DE SUS DOMICILlOS.                   CORRESPONDE AL JUEZ DEL DOMICILIO              DE
LOS DEMANDADOS            QUE PREVINO (ESTADOS DE JALlSCO Y NAYAR!T).".
En ef Torno IV del Semanario          Judicial de la Federacion      se cita como precedents e1
publicado     en la Septima       EPOC3, Volumenes       217-228,   Cuarta   Parte, pagina 337, el
cual se corrige como aqui se sefiala.
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 1 of 18 PageID #: 3074



                         IN THE UNITED STATES DISTRICT COURT
                           OF THE EASTERN DISTRICT OF TEXAS
                                  TEXARKANA DIVISION


  HOLLY ANN SACKS, Individually and             §
  as Representative of the Estate of            §                    EXHIBIT "B"
  RICHARD TODD SACKS, MELVIN                    §
  PHILLIP SACKS, and MARILYN                    §
  PROCTOR,                                      §
                              Plaintiffs        §
                                                §
  V.                                            §               No. 5:04CV73
                                                §
  FOUR SEASONS HOTEL LIMITED                    §
  and FOUR SEASONS PUNTA MITA,                  §
  S.A. de C.V.,                                 §
                      Defendants                §

                            REPORT AND RECOMMENDATION
                       OF THE UNITED STATES MAGISTRATE JUDGE

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the

  Adoption of Local Rules for Assignment of Duties to United States Magistrate Judges, Defendants’

  Motion for Relief from Court Order (Docket Entry # 119) was referred to the Honorable Caroline

  M. Craven for the purpose of preparing a report and recommendation. The Court, having reviewed

  the relevant briefing and hearing arguments of counsel,1 recommends Defendants’ motion be

  DENIED.

                                                    I.

                                    FACTUAL BACKGROUND

         Holly Ann Sacks, Individually and as Representative of the Estate of Richard Todd Sacks,

  Melvin Phillip Sacks, and Marilyn Proctor (“Plaintiffs”) bring this diversity cause of action against

  Four Seasons Hotels Limited, a Canadian corporation, and Four Seasons Punta Mita, S.A. de C.V.,


         1
             The Court conducted a hearing on Defendants’ motion on May 30, 2007.
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 2 of 18 PageID #: 3075



  a Mexican corporation (“Defendants”), alleging on or about June 6, 2003, Plaintiff Holly Ann Sacks

  and Richard Todd Sacks checked into the Four Seasons Resort, Punta Mita, Mexico (“the resort”).

  Plaintiffs assert negligence, breach of duty of care, wrongful death, and survival causes of action

  against Defendants arising from the death of Richard Sacks (the “decedent”) on June 8, 2003, while

  the Sacks were staying in the resort. At the time of his death, the decedent resided in Texas. Holly

  Sacks currently resides in Dallas County, Texas. Melvin Sacks is a citizen of Texas, and Marilyn

  Proctor is a citizen of Massachusetts.

                                                    II.

                                  PROCEDURAL BACKGROUND

         On July 7, 2005, Defendants filed their Motion to Dismiss Under the Doctrine of Forum Non

  Conveniens. The next day, Defendants filed their Motion for Determination of Law Pursuant to Rule

  44.1. After a hearing on Defendants’ motions, on March 7, 2006, the undersigned issued a Report

  and Recommendation recommending Defendants’ motion to dismiss be denied. The undersigned

  further recommended that the Court’s ruling on Defendant’s motion for determination of law

  pursuant to Rule 44.1 be that Texas law shall apply to both liability and damages in this case.

         In the Report and Recommendation, the undersigned determined that Mexico is not an

  available foreign forum in this case for the following six reasons. First, under Mexican law, the

  statute of limitations for refiling had expired. Second, in Mexico, parties cannot consent to U.S.

  procedural rights, such as jurisdiction. Third, because the theory of preemptive jurisdiction is deeply

  rooted in Mexican law, Mexico is not available because Plaintiffs have not chosen Mexico as the

  forum. Fourth, the primary wrongdoing in this case originated in Canada and the United States, and

  therefore, no alternative forum can exist in Mexico. Fifth, a “return jurisdiction” clause does not



                                                    2
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 3 of 18 PageID #: 3076



  change the Court’s opinion that Mexico is not an available alternative forum. Sixth, a Mexican court

  lacks territorial jurisdiction over Canadian defendant Four Seasons Hotels Limited.

         In addition, the undersigned held Mexico is not an adequate forum. Specifically, the

  undersigned found that a transfer to Mexico would be unfair to Plaintiffs because (1) Mexico does

  not have procedural safeguards to permit Plaintiffs to develop their evidence; (2) no Mexican

  attorney would be likely to take this case on a contingency fee basis; (3) proceedings in Mexico will

  not be concluded within a reasonable time frame; (4) Mexico’s very limited damages recovery

  scheme is so clearly unsatisfactory in this case that these Plaintiffs would, in essence, have no

  remedy; and (5) the United States is strongly connected to the parties and evidence in this case.

  (Report and Recommendation at pg. 14).

         Even though the undersigned found Defendants had not met their initial burden of

  establishing that Mexico is an available and adequate foreign forum, the Court still weighed the

  private and public interest factors. After consideration of the factors, the undersigned concluded they

  weighed in favor of keeping Plaintiffs’ case in the United States. (Id. at pgs. 17-21).

         Finally, the undersigned weighed the relevant factors in considering choice of law and

  concluded Texas law should apply to both liability and damages because Texas has the “most

  significant relationship.” In so concluding, the undersigned first found Texas has the strongest

  interest in determining Plaintiffs’ damages theory, stating it “makes little sense to apply Mexico’s

  measure of damages, which indexes the amount of recovery to the prevailing wages set by the labor

  law of that nation, when [the parties] are residents of Texas.” (Report and Recommendation at pg.

  36, quoting Gutierrez v. Collins, 583 S.W.2d312, 319 (Tex. 1979)). The undersigned noted the only

  party that Mexican law would protect is Defendant Four Seasons Punta Mita whereas the decedent,



                                                    3
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 4 of 18 PageID #: 3077



  two Texas plaintiffs, one Massachusetts plaintiff, and a Canadian defendant, do not derive their

  earnings from Mexican wages. The undersigned further found Texas has the “most significant

  relationship” in determining Defendants’ liability, noting some of the alleged tortious conduct that

  allegedly caused Mr. Sacks’ death occurred in Canada and the United States, not Mexico.

         On March 24, 2006, the District Court adopted the Report and Recommendation as the

  findings and conclusions of the Court. On October 19, 2006, the Court certified the March 24, 2006

  Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On January 22, 2007, the United

  States Court of Appeals for the Fifth Circuit denied leave to appeal from the Court’s interlocutory

  order entered on October 19, 2006.

                                                  III.

               DEFENDANTS’ MOTION FOR RELIEF FROM COURT ORDER

  A.     Defendants’ original motions

         In their original motions, Defendants requested Plaintiffs’ claims against them be dismissed

  under the doctrine of forum non conveniens and determine that Mexican law governs the issues in

  this case. According to Defendants, Mexico provides an adequate alternative forum in this case, and

  the private and public interest factors also weigh in favor of resolving this case in Mexico.

  Defendants further asserted Mexico, not Texas, has the “most significant relationship” to this case,

  weighing in favor of Mexican law. In support of their motions, Defendants submitted affidavits from

  Jorge de Presno and Carlos Serna, both Mexican attorneys, who provided expert opinions on the law

  of Mexico and the State of Nayarit.

         Plaintiffs opposed both motions, asserting (1) Mexican courts do not provide an adequate or

  alternative forum; (2) the public and private interest factors weigh in favor of the United States; and



                                                    4
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 5 of 18 PageID #: 3078



  (3) the Court should apply Texas law in this case. In their responses, Plaintiffs submitted the

  Affidavits of Dr. Leonel Pereznieto-Castro and Henry S. Dahl. Pereznieto is an expert on the laws

  of Mexico and the Mexican State of Nayarit. He is a practicing attorney and law professor in

  Mexico, specializing in conflict of laws. Dahl is an expert in international and comparative law.

  He has worked on cases in Mexico specifically related to forum non conveniens issues.

  B.      Defendants’ current motion

          Currently, Defendants move for relief from this Court’s March 24, 2006 Order adopting the

  Magistrate Judge’s March 7, 2006 Report and Recommendation denying Defendants’ forum non

  conveniens motion to dismiss and Defendants’ Rule 44.1 motion for application of the law of

  Nayarit, Mexico. Defendants move for relief, asserting there is newly discovered evidence and

  evidence of fraud warranting a reconsideration of this Court’s March 24, 2006 Order. See FED . R.

  CIV . P. 60(b)(2) and (3). Specifically, Defendants assert Plaintiffs’ lead expert on the law of Nayarit

  and Mexico, Dr. Pereznieto, was sanctioned on December 18, 2006 by the United States District

  Court for the Southern District of Indiana and ordered to pay $100,000 for his “double role” as the

  “mastermind” behind perpetuating a fraud upon the court regarding his service as an expert on

  Mexico law relative to a forum non conveniens motion that was before that court. In re:

  Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 2006 WL 3895059 (S.D. Ind. Dec.

  18, 2006). The court ordered Pereznieto barred from providing further testimony against those

  defendants as long as the monetary sanctions remain unpaid, and the court struck all of Pereznieto’s

  opinions on Mexican law from being considered on the forum non conveniens issue. Id. at *2.

          According to Defendants, the Indiana court sanctioned Pereznieto for the fraud he perpetrated

  on the court, which was directly related to Pereznieto’s fraudulent activity in obtaining the dismissal



                                                     5
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 6 of 18 PageID #: 3079



  of the related case in Morelos, Mexico. Here, Pereznieto relied heavily on the result from the same

  case from Morelos, Mexico as a basis for his opinions on forum non conveniens that the courts of

  Nayarit, Mexico would not accept jurisdiction over the instant case and therefore would not provide

  an “available” alternative forum. Defendants assert Pereznieto’s opinions on the jurisdiction of the

  courts in Nayarit, Mexico and his opinions on the availability of the courts in the instant case as well

  as his reliance on the Morelos decision for those opinions have been directly discredited due to the

  fraud. Defendants further assert consideration of this fraud should lead the Court to grant

  Defendants’ forum non conveniens and Rule 44.1 motions.

                                                    IV.

                                         APPLICABLE LAW

  A.      The Doctrine of Forum Non Conveniens

          “The doctrine of forum non conveniens rests upon a court’s inherent power to control the

  parties and cases before it and to prevent its processes from becoming an instrument of abuse or

  injustice.” In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1153-54 (5th Cir. 1987)(en

  banc), vacated by Pan Am. World Airways, Inc. V. Lopez, 490 U.S. 1032 (1989), reinstated except

  as to damages by Air Crash Disaster v. Pan Am. World Airways, Inc., 883 F.2d 17 (5th Cir. 1989)(en

  banc). Applying this power, a federal court may decline to exercise jurisdiction, even though the

  court has jurisdiction and venue, “where it appears that the convenience of the parties and the court

  and the interests of justice indicate that the action should be tried in another forum.” Id. at 1154.

  A “federal court sitting in a diversity action is required to apply the federal law of forum non

  conveniens when addressing motions to dismiss a plaintiff’s case to a foreign forum.” Id. at 1159.

          In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and Koster v. American Lumbermens



                                                     6
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 7 of 18 PageID #: 3080



  Mutual Casulty Co., 330 U.S. 518 (1947), the Supreme Court established the principle “that a court

  may resist imposition upon its jurisdiction even when jurisdiction is authorized.” Gulf Oil, 330 U.S.

  at 507. According to the Court, in deciding whether to exercise or decline jurisdiction, “the ultimate

  inquiry is where trial will best serve the convenience of the parties and the ends of justice.” Koster,

  330 U.S. at 527. “The determination of what is most convenient rests upon several private and

  public factors which the Court stated should be considered and balanced by a court when presented

  with a motion to dismiss for forum non conveniens.” In re Air Crash Disaster Near New Orleans,

  821 F.2d at 1162.

          The decision of whether to grant or deny a motion to dismiss for forum non conveniens is

  within the discretion of the court. Id. at 1165. The decision “should be an exercise in structured

  discretion founded on a procedural framework guiding the district court’s decisionmaking process.”

  Id. “A defendant of course bears the burden of invoking the doctrine and moving to dismiss in favor

  of a foreign forum.” Id. at 1164. “This burden of persuasion runs to all elements of the forum non

  conveniens analysis,” including demonstrating that an “adequate and available forum exists as to all

  defendants if there are several.” Id. If defendant meets this initial burden, “it must also establish that

  the private and public interests weigh heavily on the side of trial in the foreign forum.” Id.

  B.      Available and Adequate Alternative Forum

          In Piper Aircraft Co. V. Reyno, 454 U.S. 235, 255 (1981), the Supreme Court reaffirmed the

  principles enunciated in Gulf Oil and Koster as appropriate for use in diversity cases. In Reyno, the

  Court emphasized that prior to balancing the private and public interest factors, a court must first

  determine whether another adequate forum is available to hear the case “because the forum non

  conveniens presupposes the existence of at least two forums in which all defendants are amenable


                                                      7
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 8 of 18 PageID #: 3081



  to process.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1164. “The Reyno court also

  stated that a foreign plaintiff’s selection of an American forum deserves less deference than an

  American citizen’s selection of his home forum.” Id. However, a citizen’s selection of his home

  forum is not dispositive, and “if the balance of conveniences suggests that trial in the chosen forum

  would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Reyno, 454

  U.S. at 257, n. 23.

         The issue of whether an available and adequate foreign forum exists is a two-part inquiry:

  availability and adequacy. In re Air Crash Disaster Near New Orleans, 821 F.2d at 1165. “A

  foreign forum is available when the entire case and all parties can come within the jurisdiction of that

  forum.” Id. “A foreign forum is adequate when 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.” Id.

  C.     Private and Public Interest Factors

         If the court decides the foreign forum is both available and adequate, the court should then

  consider what forum is most convenient by balancing the numerous private and public interest

  factors. Id. at 1162, 1165. The private interest factors to be considered are “the relative ease of

  proof; availability of compulsory process for attendance of unwilling witnesses; and the costs of

  obtaining attendance of willing. . . witnesses; probability of view of premises, if view would be

  appropriate to the action; and all other practical problems that make trial of a case easy, expeditious,

  and inexpensive.” Id. at 1162. “If the district court finds that the private interests do not weigh in

  favor of the dismissal, it must then consider the public interest factors.” Id. at 1165. The public

  interest factors include “the administrative difficulties flowing from court congestion; the local


                                                     8
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 9 of 18 PageID #: 3082



  interest in having localized controversies resolved at home; the interest in having the trial of a

  diversity case in a forum that is familiar with the law that must govern the action; the avoidance of

  unnecessary problems in conflicts of law, or in application of foreign law; and the unfairness of

  burdening citizens in an unrelated forum with jury duty.” Id. at 1162-63.

          According to the Fifth Circuit, if the court determines the above consideration favor trial in

  a foreign forum, “it must finally ensure that a plaintiff can reinstate his suit in the alternative forum

  without undue inconvenience or prejudice and that if a defendant obstructs such reinstatement in the

  alternative forum that the plaintiff may return to the American forum.” Id. at 1166. The denial of

  a motion to dismiss for forum non conveniens may be reversed only when there has been a clear

  abuse of discretion. Id. The trial court’s decision “deserves substantial deference” when the court

  has considered all relevant factors and where its balancing of the factors is reasonable. Id.

                                                    V.

                                       PEREZNIETO’S FRAUD

          In In re Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917,

  920 (S.D. Ind. Nov. 14, 2006), the district court initially granted the defendants’ forum non

  conveniens motion, dismissing the plaintiffs’ complaint stemming from the 2002 death of their

  husband and father as a result of a roll-over of the Ford Explorer he was driving in Veracruz,

  Mexico. Pereznieto was a retained expert for some of the plaintiffs in the Indiana case and had

  submitted an affidavit on their behalf in opposition to the defendants’ motion. The plaintiffs

  appealed the dismissal of their complaint.

          While the appeal was pending, the plaintiffs’ counsel informed the Seventh Circuit Court of

  Appeals that the plaintiffs had hired Pereznieto as Mexican counsel and had attempted to sue the


                                                     9
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 10 of 18 PageID #: 3083



   defendants in a court in Morelos, Mexico. According to the plaintiffs, the Mexican court determined

   it did not have jurisdiction to hear the case. In re Bridgestone/Firestone, Inc. Tires Product Liability

   Action, 420 F.3d 702, 705 (7th Cir. 2005). Based on this new evidence, the Seventh Circuit found

   the Mexican forum was not available under the circumstances, but remanded to the district court for

   further investigation of the circumstances surrounding the Morelos decision because the court

   expressed concerns about whether the Morelos case was handled in good faith and whether the

   Morelos decision was entitled to recognition by the district court. Id. at 706.

          On remand, the Indiana court conducted extensive discovery and held an evidentiary hearing.

   In re Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917, 919-20

   (S.D. Ind. Nov. 14, 2006). The evidence established that in filing the case in Morelos, Mexico, the

   attorneys for the plaintiffs acted with the clear purpose of having the case dismissed and in seeking

   that result, “manipulated the process to insure that the dismissal would be based on a particular

   reason that was calculated to improve the chances of the dismissal being sustained on appeal.” Id.

   at 920. The court further held the Morelos orders were obtained in bad faith and were not subject

   to recognition by courts in the United States. Id.

          The Indiana court further discussed Pereznieto’s involvement and found he “played a double

   role in this attempted fraud on the court - as Plaintiffs’ Mexican counsel in the Morelos suit and as

   an expert witness. In addition, he accepted a contingent fee interest in Plaintiffs’ recovery from the

   Defendants as a compensation for his work.” Id. at 928.

          On December 18, 2006, the Indiana court amended its November 14, 2006 Order and

   sanctioned Pereznieto for the fraud he perpetrated on the court. In re Bridgestone/Firestone, Inc.

   Tires Product Liability Litigation, 2006 WL 3895059 (S.D. Ind. Dec. 18, 2006). The court called


                                                     10
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 11 of 18 PageID #: 3084



   Pereznieto the “apparent mastermind behind these frauds on the U.S. and Mexican courts” and

   ordered him to pay over, as a personal sanction, the amount of one hundred thousand dollars. Id. at

   *2. The court further ordered that as long as the sanction remains unpaid, Pereznieto is barred from

   providing any testimony against any defendant in that cause of action anywhere in the United States.

   Id. The court also struck all sworn opinions of Pereznieto, whether made directly or indirectly, in

   the remaining cases in the Bridgestone/Firestone multidistrict litigation. Id.

                                                    VI.

                                             DISCUSSION

          On March 7, 2006, the undersigned recommended Defendants’ forum non conveniens and

   Rule 44.1 motions be denied, first finding that Mexico is neither an available nor an adequate

   alternative forum in this case. Now, Defendants assert Pereznieto’s fraud in the Indiana case should

   lead the Court to grant Defendants’ forum non conveniens and Rule 44.1 motions.

          In the March 7, 2006 Report and Recommendation, the Court first determined that Mexico

   is not an available forum for six detailed reasons. In this portion of the Court’s analysis, the Court

   referenced Pereznieto’s affidavit for the proposition that Mexico lacks territorial jurisdiction over

   Canadian Defendant Four Seasons, and therefore is not an available forum. The undersigned made

   no reference to the Morelos decision in its discussion. Using a different case referenced by

   Pereznieto, Garcia v. Ford Motor Company, et al., as one example and Article 30, Section IV of the

   Code of Civil Procedure for the State of Nayarit, the Court concluded that “a Mexican court lacks

   territorial jurisdiction over Canadian defendant Four Seasons Hotels Limited.” The Court also gave

   five other reasons to find that Mexico is not an available forum. These reasons are separate and apart

   from the principle of territorial jurisdiction, which was the only principle connected to the Morelos


                                                    11
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 12 of 18 PageID #: 3085



   decision.

           Now, not only do Defendants assert the Morelos decision should be removed as authority in

   this case, with which Plaintiffs and the Court fully agree, but Defendants also assert all of

   Pereznieto’s opinions on the jurisdiction and availability of the courts in Nayarit, Mexico in the

   instant case have been directly discredited due to the fraud in the Indiana case. However, according

   to Plaintiffs, Defendants fail to articulate any valid reason for disregarding the entire expert

   testimony of Pereznieto. Plaintiffs assert the fact that an expert witness has been criticized and

   sanctioned in another case against another defendant by a another court, does not, standing alone,

   justify tossing out all of that witness’ work in the instant case.

           Unlike the factual situation in this case, the allegations against Pereznieto in the Indiana case

   were fully developed after almost one year of discovery and a two-day evidentiary hearing. There,

   the evidence established that in filing the case in Morelos, Mexico, the attorneys for the plaintiffs,

   along with Pereznieto, acted with the clear purpose of having the case dismissed and in seeking that

   result, “manipulated the process to insure that the dismissal would be based on a particular reason

   that was calculated to improve the chances of the dismissal being sustained on appeal.” In re

   Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917, 920 (S.D. Ind.

   Nov. 14, 2006). Here, Defendants have not presented evidence of any fraud being perpetrated upon

   this Court in this case. Instead, Defendants rely on the fraud found by the Indiana court, asserting

   that finding justifies invalidation of Pereznieto’s opinions in this case. Defendants further assert

   Pereznieto’s fraud in the Indiana case affected this Court’s ruling on its forum non conveniens and




                                                      12
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 13 of 18 PageID #: 3086



   Rule 44.1 motions.2

          Although the Court is not convinced Pereznieto’s fraud in the Indiana case necessitates the

   Court’s complete disregard of Pereznieto’s opinions in this case, out of an abundance of caution, the

   Court disregards the Morelos decision and strikes all of Pereznieto’s opinions offered in this case.

   However, the Court disagrees with Defendants that taking the Morelos decision and Pereznieto’s

   opinions completely out of this case and out of the forum non conveniens analysis warrants a

   different ruling from the Court on Defendants’ forum non conveniens and Rule 44.1 motions. This

   is so for the following reasons.

          Even disregarding the Morelos case and Pereznieto’s affidavit in its entirety, Plaintiffs have

   offered other extensive analysis of Mexican law from Plaintiffs’ other expert, Henry S. Dahl. The

   Court specifically relied on and made reference to Dahl’s affidavit in its March 7, 2006 Report and

   Recommendation on pages 11 through 14.

          Defendants assert Dahl’s affidavit is infected by Pereznieto’s fraud because Dahl stated he

   had read Pereznieto’s affidavit and agreed with his views. However, the Court is not convinced

   Dahl’s opinions, as an independent expert on Mexican law, are inextricably linked to Pereznieto’s

   fraud in the Indiana case as to invalidate Dahl’s opinions in this case. The Court therefore considers

   Dahl’s affidavit.

          In his affidavit, Dahl opines that Mexico is not an available forum and states his reasons,

   primarily based upon his interpretation of Mexican law. First, Dahl opines that the effects of forum

   non conveniens violate Mexican law. Second, Dahl explains preemptive jurisdiction in Mexican law,



          2
           Again, the undersigned made no reference to the Morelos decision in its March 7, 2006
   Report and Recommendation.

                                                    13
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 14 of 18 PageID #: 3087



   concluding that after a case has been filed in a United States court, Mexican jurisdiction is

   preempted. Third, Dahl expresses his opinion that procedural rights that may be subject to

   negotiation in the United States legal system cannot be agreed to by the parties in the Mexican

   context. Fourth, Dahl explains that jurisdiction over Canadian Defendant Four Seasons would not

   be in Mexico. Dahl’s affidavit provides adequate support for the Court’s conclusion regarding the

   lack of an available forum in Mexico.

           Moreover, in response to Defendants’ current motion, Plaintiffs have filed with the Court

   seventeen cases filed by Mexican citizens that were refiled in Mexico after dismissed in the United

   States on forum non conveniens grounds. In each case, the Mexican court dismissed the case for lack

   of jurisdiction.3

           The Court, having considered the cases filed by Plaintiffs and without relying on the Morelos

   decision or Pereznieto’s opinions, remains of the opinion, based on the facts of this case, that Mexico

   is not an available forum. First, there is the limitations issue. Under the Civil Code for the State of

   Nayarit Article 1145, the statute of limitations for this case is two years. The decedent died on June

   8, 2003, and Plaintiffs persuasively argue Defendants improperly assert the expired two-year statute

   of limitations in this case would be tolled. According to Plaintiffs, Nayarit’s tolling statute only

   applies to lawsuits filed within the territories of Mexico.

           As for Defendants’ offer to consent to the jurisdiction of the Mexican legal system, Dahl


           3
            The Court notes that in the Indiana case, the court was not concerned with the
   availability of Mexico as a forum in general, but only with the two specific questions referred by
   the Seventh Circuit Court of Appeals. Therefore, the Indiana court did not consider the decisions
   submitted by the plaintiffs wherein Mexican courts had refused jurisdiction. In re
   Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 470 F.Supp.2d 917, 920 n.5 (S.D.
   Ind. 2006).


                                                     14
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 15 of 18 PageID #: 3088



   makes clear in his affidavit that many procedural rights that are subject to negotiation in the United

   States legal system cannot be agreed to by the parties in a Mexican court. According to Dahl,

   stipulations made before a United States court to waive the Mexican statute of limitations are

   meaningless in Mexico. The Court questions whether Defendants’ consent or submission to the

   jurisdiction of a Mexican court would actually confer jurisdiction under the laws of Mexico.

          Moreover, there is a question of whether a Mexican court would even accept jurisdiction over

   this action. Dahl explains in his affidavit that the theory of preemptive jurisdiction is deeply rooted

   in Mexican law, and the filing before this Court preempts Mexican jurisdiction. Plaintiffs have not

   chosen, and will not be voluntarily choosing, the Mexican forum to file suit as is required under

   Article 8 of Nayarit’s Civil Procedure law– no matter how adamantly Defendants want to submit

   themselves to the jurisdiction of the Mexican court or if this Court dismisses this case on forum non

   conveniens grounds.

          Second, a Mexican court lacks territorial jurisdiction over Canadian Defendant Four Seasons

   Hotels Limited. According to Dahl, Article 30, Section IV of the Code of Civil Procedure for the

   State of Nayarit, determines that jurisdiction in a personal injury action lies in the defendant’s

   domicile, and when a defendant is not domiciled in a particular judge’s jurisdiction, the Mexican

   judge will declare himself without jurisdiction and must refuse to accept or admit the case into his

   court. Defendants have failed to show that Mexico is an available alternative forum in this case.

   Even though Defendants have failed to show that a Mexican forum is available and the Court need

   not proceed further into the forum non conveniens inquiry, assuming arguendo Mexico is an

   available forum, the next step would be to analyze the adequacy of Mexico as an alternative forum.

          In the March 7, 2006 Report and Recommendation, the undersigned found that Mexico is an


                                                     15
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 16 of 18 PageID #: 3089



   inadequate alternative forum. In so doing, the undersigned gave five reasons for the recommendation

   to retain this case. None of the reasons contained any reference to the Morelos decision, and this

   issue has nothing to do with the Morelos decision. Even though the undersigned considered

   Pereznieto’s affidavit regarding discovery practices in Mexico and Mexico’s limited damages

   recovery scheme, the Court’s conclusion is not altered even removing from the Court’s consideration

   Pereznieto’s affidavit.

            Dahl, Plaintiffs’ other expert on Mexican law, opines that Mexico is not an adequate forum

   because of the limited possible recovery and the unlikelihood of obtaining Mexican counsel on a

   contingency fee basis. Thus, the affidavit of Dahl provides adequate support for the Court’s

   conclusion regarding the lack of an adequate forum in Mexico. The Court, having removed

   Pereznieto’s opinions from its consideration, remains of the opinion Mexico is not an adequate

   forum.

            Even if the Court were to find Mexico is an adequate foreign forum, Defendants’ motion for

   relief from the Court’s March 24, 2006 Order still fails because the private and public interest factors

   weigh in favor of keeping Plaintiffs’ case in the United States. The Court has determined that, if

   Mexico were an available and adequate forum, only two of the four private interest factors would

   weigh in favor of resolving this case in Mexico. In addition, the Court finds the public interest

   factors (the administrative difficulties flowing from court congestion, the local interest in having

   localized controversies decided at home, 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, the avoidance of unnecessary problems in

   conflict of laws, and the unfairness of burdening citizens in an unrelated forum with jury duty) weigh

   in favor of resolving this litigation in Texas.


                                                     16
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 17 of 18 PageID #: 3090



           The Court notes that in response to Defendants’ current motion, Plaintiffs have provided the

   Court the February 27, 2004 Order by the Southern District of Indiana, wherein the court denied the

   defendants’ motions to dismiss for forum non conveniens as the United States resident plaintiffs for

   accidents occurring in Mexico and where there was a non-Mexican defendant.                        In re

   Bridgestone/Firestone, Inc. Tires Products Liability Litigation (S.D. Ind. February 27, 2004). The

   court held the United States resident plaintiffs’ cases should not be dismissed because the

   presumption of convenience accorded a plaintiff’s choice of her home forum as well as the balance

   of the private and public interest factors pointed toward retention of the cases in the federal courts

   of Texas. Id.

           Here, two of the three plaintiffs reside in Texas. Both Defendants conduct business in Texas.

   The relationship between the parties began in Texas. The Court finds Plaintiffs’ case should not be

   dismissed because the presumption of convenience accorded Plaintiffs’ choice of her home forum,

   as well as the balance of the private and public interest factors, weigh in favor of retaining this case.

                                                    VII.

                                         RECOMMENDATION

           In sum, the Court removes from its consideration all of Pereznieto’s opinions. The finding

   that a Mexican forum is unavailable or the finding that a Mexican forum is inadequate, each alone,

   prevents a dismissal of this case. Even so, the Court continued with its forum non conveniens

   analysis and found that the balance of private and public interest factors favored resolving the case

   in Texas. Again, this finding that the interest factors weigh in favor of United States jurisdiction,

   alone, prevents dismissal. At each of the three steps in the Court’s analysis (availability, adequacy,

   and balance of interest factors), and without any reliance on the Morelos decision referred to by


                                                      17
Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 18 of 18 PageID #: 3091



     Pereznieto in his affidavit or any of Pereznieto’s other opinions, the Court concludes that Plaintiffs’

     case should not be dismissed and transferred to Mexico. For all these reasons, the Court

     recommends Defendants’ motion for relief from the Court’s March 24, 2006 Order be denied. Based

     on the foregoing, it is

             RECOMMENDED that Defendants’ Motion for Relief from Court Order (Docket Entry

     # 119) be DENIED.

             Within ten (10) days after receipt of the magistrate judge’s report, any party may serve and

     file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A.
 .
     636(b)(1)(C).

             Failure to file written objections to the proposed findings and recommendations contained

     in this report within ten days after service shall bar an aggrieved party from de novo review by the

     district court of the proposed findings and recommendations and from appellate review of factual

     findings accepted or adopted by the district court except on grounds of plain error or manifest

     injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

     Cir.1988).

           SIGNED this 7th day of June, 2007.




                                                         ____________________________________
                                                         CAROLINE M. CRAVEN
                                                         UNITED STATES MAGISTRATE JUDGE




                                                       18
Appendix Tab 4
                                                                              8/12/20153:54:48    PM
                                                                              Chris Daniel - District Clerk
                                                                              Harris County
                                                                              Envelope No: 6469324
                                                                              By: TOLMAN, TAMMY E
                                                                              Filed: 8/12/2015 3:54:48 PM
                                                                                                          Pgs-2
                                                                                                          Pgs-2
                                    CAUSE NO. 2015-28543
                                                                                                        PABAY
MARIA SANTOS LOPEZ DOMINGUEZ,                         §              IN THE DISTRICT      COURT         PJURY
INDIVIDUALLY AND AS NEXT FRIEND                       §
OF KAREN MARIEN ANDRADE LOPEZ,                        §
MAIRET SAMELI ANDRADE LOPEZ                           §
AND IMAR GERARDO ANDRADE LOPEZ                        §
ON BEHALF THE ESTATE OF OMAR                          §
GERARDO ANDRADE LOPEZ, ET AL                          §
                                                      §
V.                                                    §          OF HARRIS COUNTY, TEXAS
                                                      §
ARNOLD & ITKIN, L.L.P.,                               §
BECK REDDEN, L.L.P.,                                  §
ALBRITTON LAW FIRM,                                   §
KURT ARNOLD, CORY ITKIN,                              §
JASON ITKIN, RUSSELL POST,                            §
FIELDS ALEXANDER, JAS BRAR and                        §
ERIC ALBRITTON                                        §             11TH JUDICIAL      DISTRICT

           ORDER DENYING DEFENDANTS' PLEA TO THE JURISDICTION
                         AND PLEA IN ABATEMENT

        On this day came on to be considered the Plea to the Jurisdiction, and, in the Alternative,

Plea in Abatement of Defendants, ARNOLD           & ITKIN,     L.L.P., BECK REDDEN,         L.L.P.,

ALBRITTON         LAW FIRM, KURT ARNOLD,             CORY ITKIN, JASON ITKIN, RUSSELL

POST,    FIELDS     ALEXANDER,       JAS BRAR AND ERIC              ALBRITTON,      and Plaintiffs

Response to All Defendants' Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement,

and the Court, after considering same and hearing argument of counsel is of the opinion that said

motion and pleas should be denied, and it is, therefore

        Ordered    that all Pleas to the Jurisdiction and all Pleas in Abatement of Defendants,

ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P., ALBRITTON                       LAW FIRM, KURT

ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS ALEXANDER,                               JAS

BRAR AND ERIC ALBRITTON,              are hereby denied in their entirety.
Signed this __   day of                         , 2015.


                    Signed: . ~ /)D   I
                                      A   rs:
                 9/17/2015 fWd'
                          ---------
                                    J~
                          Judge Mike Miller
Appendix Tab 5
                                                              1
                        Status Conference
                         October 19, 2015


1                        REPORTER'S RECORD
                       VOLUME 1 OF 1 VOLUMES
2                TRIAL COURT CAUSE NO. 2015-28543

3

4    LOPEZ DOMINGUEZ, ET AL    ) IN THE DISTRICT COURT
                               )
5    vs.                       ) HARRIS COUNTY, TEXAS
                               )
6    ARNOLD & ITKIN, LLP, ET AL) 11th JUDICIAL DISTRICT

7
8

9

10        _____________________________________________
11                      STATUS CONFERENCE
          _____________________________________________
12

13
14

15

16
17

18       On the 19th day of October, 2015, the following

19   proceedings came on to be held in the above-titled and
20   numbered cause before the Honorable Mike Miller, Judge

21   Presiding, held in Houston, Harris County, Texas.

22       Proceedings reported by computerized stenotype
23   machine.

24

25


                      TERRI W. ANDERSON, CSR
            201 CAROLINE, #945   HOUSTON, TEXAS     77002
                                                            2
                        Status Conference
                         October 19, 2015


1                          APPEARANCES

2
     Mr. David Kassab
3    KASSAB LAW FIRM
     1420 W. Alabama Street
4    Houston, Texas 77004
     Telephone: 713-522-7400
5    Counsel for PLAINTIFFS

6
     Mr. Samuel A. Houston
7    SHEPHERD, SCOTT, CLAWATER & HOUSTON, LLP
     2777 Allen Parkway, 7th Floor
8    Houston, Texas 77019
     Telephone: 713-650-6600
9    Counsel for DEFENDANT ARNOLD & ITKIN, LLP

10
     Mr. Reagan W. Simpson
11   YETTER COLEMAN, LLP
     909 Fannin St., #3600
12   Houston, Texas 77010
     Telephone: 713-632-8002
13   Counsel for DEFENDANTS BECK REDDEN, RUSSELL POST, FIELDS
     ALEXANDER, JAS BRAR
14

15

16
17

18

19
20

21

22
23

24

25


                      TERRI W. ANDERSON, CSR
            201 CAROLINE, #945   HOUSTON, TEXAS   77002
                                                                  3
                           Status Conference
                            October 19, 2015


1                      P R O C E E D I N G S
2

3                     THE COURT:   Here we go.   I will be the

4    first one to admit that it was fairly obvious, I think,
5    that I was wavering under the misimpression that all

6    denials of the Pleas to the Jurisdiction were subject to

7    interlocutory appeal.     I was confusing them, I guess,
8    because the City of Houston takes up every single one.

9    I guess there is no specific statutory prerogative to do

10   the same in this context.      It was obvious that is what I
11   thought.

12                    Anyway, I read -- I want to be candid,

13   okay, that to say I was absolutely confident that I was
14   making the right ruling with regard to whether we have

15   sufficient ripeness in this case, I do not have -- I

16   still have some level of ambivalence.       It may be my lack
17   of familiarity with malpractice cases and how they

18   typically run.     It seems to me there is probably some

19   requirement -- like I said last time, I was certainly
20   under the impression that I thought and, frankly, I

21   thought you had to try the case, take it up on appeal

22   and go the whole nine yards before you can file a
23   malpractice case.     I always believed that to be the

24   circumstance.

25                    But then the cases you cited.    I am not


                      TERRI W. ANDERSON, CSR
            201 CAROLINE, #945   HOUSTON, TEXAS       77002
                                                                     4
                          Status Conference
                           October 19, 2015


1    sure really -- that is the case in every Summary
2    Judgment I deny.    I can say the same thing on every

3    single Summary Judgment.       If I deny the Summary

4    Judgment, that means we are going to have to try the
5    case.   Spend all that money.      Would it help everyone to

6    know if I did it right?    Sure.     We don't do things that

7    way.
8                    I am not sure that I see any distinction

9    in this case from every other Summary Judgment that I am

10   not sure whether I did the right thing when I deny it.
11   If I am wrong and I should have granted it, yeah, we

12   wouldn't have to try the case.       It would save a lot of

13   time 18 months from now when we get the opinion.
14                   Anyway, I don't know.     I am about as sure

15   or unsure the issue you are presenting today as I was

16   when I had to deal with that ruling on the Plea to the
17   Jurisdiction.

18                   MR. HOUSTON:     Well, appreciate that.   But

19   really what we set this morning it is about the status
20   conference, which I appreciate what you are saying.

21                   I do think it is a little different than

22   your normal denial of a Summary Judgment when you have
23   two parties.    This case involves already 15 plaintiffs

24   and they brought in more, however many the other day.

25   We are talking about much more intense discovery, much


                       TERRI W. ANDERSON, CSR
             201 CAROLINE, #945   HOUSTON, TEXAS      77002
                                                                    5
                          Status Conference
                           October 19, 2015


1    more long term.
2                    Also particularly since we are talking

3    about a novel issue, that is whether or not a plaintiff

4    can sue their lawyers when all that has been happening
5    is you have had a conditional grant of a forum non

6    conveniens.    In other words, there is no case law.

7    There is no Texas case law specifically addressing it.
8                    Really all we are asking because I know

9    you struggled with the issue on whether the abatement

10   and Plea to the Jurisdiction are correct, but under this
11   statute, the permissive appeal, it seems to me this

12   would be the perfect situation for it.       It is not your

13   run of the mill Summary Judgment.       We are very early in
14   the case so we can decide about the abatement.       They

15   still have an opportunity to pursue the case.       If we are

16   right, they need to go ahead and pursue the cases in
17   Mexico and that is what they need to do.

18                   Really I looked at this and looking at the

19   statute, I don't know how often you have addressed this
20   issue.    But it is really a two-step process.

21                   THE COURT:     Haven't done it in seven

22   years.
23                   MR. HOUSTON:     It is a two-step process and

24   this is what is important.       The order we submitted and,

25   again, the issues that I think were before you simply


                        TERRI W. ANDERSON, CSR
              201 CAROLINE, #945   HOUSTON, TEXAS     77002
                                                                      6
                         Status Conference
                          October 19, 2015


1    allows us within 15 days to see if the Court of Appeals
2    is going to look at it anyway.      A lot of those issues

3    that you raised and whether or not they -- we would know

4    --
5                   THE COURT:     Tell me about that.     Assuming

6    that I were to say, yes, you still have to convince the

7    Court of Appeals that I had a lick of sense when I said
8    yes, right?

9                   MR. HOUSTON:     Right.

10                  THE COURT:     Frankly, from the cases they
11   have cited, that doesn't happen very often, does it?

12                  MR. HOUSTON:     Maybe not.

13                  THE COURT:     Are there opinions -- do they
14   write an opinion when they say, yes, we will agree to

15   hear that?

16                  MR. SIMPSON:     Sure.    They write an
17   opinion.

18                  MR. HOUSTON:     I don't think there is a lot

19   of case law period on this.
20                  MR. SIMPSON:     When the statute was first

21   passed, both sides had to agree.         That didn't happen

22   very often.   Sometimes it did.
23                  THE COURT:     Every now and then it can.

24   Both sides can say -- I agree.      It can happen.

25                  MR. SIMPSON:     There have been instances


                      TERRI W. ANDERSON, CSR
            201 CAROLINE, #945   HOUSTON, TEXAS         77002
                                                                   7
                           Status Conference
                            October 19, 2015


1    where both sides agree and the Court of Appeals said,
2    no, we don't agree.    They have to make a decision about

3    using their judicial resources in what they decide and

4    (inaudible).
5                   Here our argument is it is a controlling

6    issue of law on whether it is ripe and you would have a

7    conditional dismissal for forum non conveniens.        That is
8    an issue that itself has not been addressed by any Texas

9    case.   It is a novel issue.

10                  They cite some -- they claim analogous
11   cases from other jurisdictions.     We have an analogous

12   case from this jurisdiction.     But there is nothing that

13   has been dealt with in terms of -- the Court has dealt
14   with the conditional dismissal which is all we are

15   talking about in this case.     It is a novel issue.     It

16   hasn't been decided.
17                  THE COURT:   The problem is there is so

18   many issues is my difficulty.     It is not just one issue.

19   I will be -- I felt like I had a reasonable grasp of all
20   the different layers and arguments.

21                  What you-all are saying is even if it is

22   not -- you are saying there is a cause of action out
23   there from the fact that they couldn't pursue their

24   Mexican law claims in the U.S., even if it is not

25   otherwise ripe?   Tell me about that again.


                       TERRI W. ANDERSON, CSR
             201 CAROLINE, #945   HOUSTON, TEXAS    77002
                                                                    8
                           Status Conference
                            October 19, 2015


1                     MR. KASSAB:     Absolutely, Your Honor.
2    David Kassab on behalf of the plaintiffs.        That issue is

3    if the lawyers would have handled the forum non

4    conveniens motion from the outset properly, the argument
5    is that they would have been able to pursue those

6    Mexican law claims even if that is all that is left at

7    the end of the day in the U.S.
8                     We have submitted expert testimony from

9    Dahl and another Mexican law lawyer that says that being

10   limited in Mexico they're not entitled to the same
11   amount of discovery that they have in the United States.

12   They're essentially limited in how they can pursue and

13   prove their case.     So we have argued that their ability
14   to pursue those Mexican law claims even in the U.S. is

15   some benefit that the lawyers deprive them of through

16   their malpractice.
17                    MR. SIMPSON:    But it is a conditional

18   dismissal.     That is the problem.     The court said:    Go to

19   Mexico.     If you don't succeed down there, come back to
20   us.   They haven't lost anything at this point.

21                    It is sort of like -- it is not exactly

22   the same -- but let's say I am a plaintiff's lawyer, I
23   don't argue well enough about a continuance and my case

24   gets delayed six months.

25                    THE COURT:     My difficulty is and, again, I


                         TERRI W. ANDERSON, CSR
               201 CAROLINE, #945   HOUSTON, TEXAS     77002
                                                                    9
                         Status Conference
                          October 19, 2015


1    am going to be candid with you.    I don't think that
2    analogy is appropriate in this case.    I think -- if you

3    send them back to Mexico at this point and tell them

4    they have to litigate through the entire system, I think
5    it is a black hole that they will never come back from.

6    I think you are dismissing the case.    I think it is

7    dispositive of the case.    There is really not a remedy
8    that will allow them -- how many plaintiffs are there?

9                  MR. KASSAB:    Your Honor, we have added

10   additional ones.   I believe -- we have some we haven't
11   quite filed yet.   I believe there is going to be around

12   20.

13                 THE COURT:    You are going to have to go
14   file and litigate 20 cases, take it all the way through

15   the appellate system before they have a right to bring

16   this case.   I just have a sense that is a burden that
17   they will never -- my sense is that what you are doing

18   here, if I grant this Plea to the Jurisdiction, it is

19   dispositive of the case.    That is the whole idea.     They
20   will never come back.   You will never see --

21                 Then we have to argue whether it is a

22   final judgment in Mexico and whether or not there were
23   other appellate remedies they could have pursued.       It

24   will never become ripe, ever.

25                 I very honestly think that is precisely


                      TERRI W. ANDERSON, CSR
            201 CAROLINE, #945   HOUSTON, TEXAS      77002
                                                                 10
                            Status Conference
                             October 19, 2015


1    what is going on here is that we are going to send it
2    down the black hole and it is never going to come back.

3    That is just my impression.

4                   As is often the case, my ruling may have
5    been more of a pragmatic -- it may turn out that is what

6    the law is.   Sorry.    You have got to go back and

7    litigate all these and we all know we are never going to
8    see them again if that happens.     Maybe that is the

9    outcome we will get.     But I don't feel comfortable doing

10   that.   I still don't feel comfortable doing that.      That
11   is kind of where I ended up for a variety of reasons.

12                  I kind of doubt also this is the sort of

13   thing they had in mind because of the multiplicity of
14   the issues and how complex it is.     To say that there is

15   some central narrow controlling legal issue that can be

16   determined here that is outcome determinative, I think
17   that is wishful thinking.     I think that is probably the

18   response you are going to get from them.

19                  They do have the prerogative to do that.
20   As you pointed out in your cases, that seems to be what

21   they more often do than not, right?

22                  MR. KASSAB:    They are just talking about
23   deny it for lack of jurisdiction.

24                  THE COURT:    I don't know.   The Court of

25   Appeals will say that this is inappropriate for a


                       TERRI W. ANDERSON, CSR
             201 CAROLINE, #945   HOUSTON, TEXAS     77002
                                                                   11
                          Status Conference
                           October 19, 2015


1    permissive appeal.
2                    MR. KASSAB:     Then they will dismiss it for

3    lack of jurisdiction under those circumstances because

4    they don't have the jurisdiction under this statute.
5                    THE COURT:     Isn't that what you found --

6    your argument, in essence, is this isn't a proper case

7    and you have cited all the cases where they agreed with
8    you and refused to hear it?

9                    MR. KASSAB:     But I think that the trial

10   court is the first doorway to prevent us from going
11   through that unnecessary process.

12                   THE COURT:     I will tell you what I am

13   going to do.    I will give you your opportunity in the
14   Court of Appeals.    If the Court of Appeals agree it is a

15   controlling issue, then perhaps I got it so wrong that

16   they want to jump in there to address it.       I will give
17   you the opportunity to do that.       I will give you the

18   chance and we will see what the Court of Appeals says.

19   I have my doubts.    That doesn't seem unreasonable to me.
20   Frankly, I think most of the time they're not going to

21   do it.

22                   MR. KASSAB:     I understand the Court's
23   instruction.    Are you going to be giving them that

24   opportunity with the order that is currently in place?

25                   MR. HOUSTON:     I was about to say, can we


                        TERRI W. ANDERSON, CSR
              201 CAROLINE, #945   HOUSTON, TEXAS     77002
                                                                         12
                          Status Conference
                           October 19, 2015


1    just put together one order for all the defendants and
2    submit it?

3                    THE COURT:     See if you-all can agree on

4    something.    Do you want to sit down and do that while
5    you-all are all here today?       Or do you want to -- is

6    everyone going to go back to their office and start

7    sending e-mails?
8                    MR. HOUSTON:    What do you want to do?

9                    MR. KASSAB:     I would prefer to have Lance

10   available.    Lance is not available because he is out of
11   town.    So have him look at it.     We are in disagreement

12   with the issues that they think are controlling.           That

13   is the problem, Your Honor.
14                   THE COURT:     I agree with you.    I am not

15   even sure what the issues are.       They contend that that

16   answers the question and there are so many involved I
17   think.    That is the whole point.     Let's see what the

18   Court of Appeals thinks if they're correct or not.              I

19   don't see there is a lot of downside to that and it can
20   be dealt with within reasonable time constraints.           I

21   think that is a sensible solution.       I will give you the

22   chance to do it.
23                   MR. HOUSTON:     One thing.   There has been a

24   lot of discovery proposed, admissions.        Can we stay

25   discovery while we are doing that, the admissions and


                        TERRI W. ANDERSON, CSR
              201 CAROLINE, #945   HOUSTON, TEXAS       77002
                                                                     13
                         Status Conference
                          October 19, 2015


1    all?
2                   THE COURT:     No.   Why do we need to do

3    that?

4                   MR. HOUSTON:     Well, there is 172
5    admissions.

6                   THE COURT:     Requests for Admissions?

7                   MR. HOUSTON:     Yes.
8                   MR. KASSAB:     Your Honor, in all fairness,

9    they're true and false for the questions.

10                  THE COURT:     Go ahead and answer it.      If
11   the Court of Appeals wants to stay it, let them do it.

12   I try not to stay discovery unless I am required to.            I

13   am going to let you-all go give it a shot.       You can
14   answer the admissions.

15

16
17                        (HEARING CONCLUDED)

18

19
20

21

22
23

24

25


                       TERRI W. ANDERSON, CSR
             201 CAROLINE, #945   HOUSTON, TEXAS      77002
                                                                 14
                           Status Conference
                            October 19, 2015


1    STATE   OF   TEXAS:
2    COUNTY OF HARRIS:

3

4        I, Terri W. Anderson, Official Court Reporter in
5    and for the 11th District Court of Harris, State of

6    Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all
8    portions of evidence and other proceedings requested in

9    writing by counsel for the parties to be included in

10   this volume of the Reporter's Record in the above-styled
11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.

13       I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits,

15   if any, offered by the respective parties.

16       I further certify that the total cost for the
17   preparation of this Reporter's Record is $            and

18   was paid/will be paid by                                .

19
20
                                Terri W. Anderson, CSR
21                              Texas CSR 877
                                Official Court Reporter
22                              11th District Court
                                Harris County, Texas
23                              201 Caroline, #945
                                Houston, Texas 77002
24                              Telephone: 713-368-6030
                                Expiration: 12/31/16
25


                       TERRI W. ANDERSON, CSR
             201 CAROLINE, #945   HOUSTON, TEXAS   77002
                                        Word Index - Status Conference - p. 1

                                      agreed [1] 11/7                           can [14] 3/22 4/2 5/4 5/14 6/23 6/24
1                                     ahead [2] 5/16 13/10                       6/24 8/12 10/15 11/25 12/3 12/19
11th [3] 1/6 14/5 14/22               AL [2] 1/4 1/6                             12/24 13/13
12/31/16 [1] 14/24                    Alabama [1] 2/3                           candid [2] 3/12 9/1
1420 [1] 2/3                          ALEXANDER [1] 2/13                        Caroline [1] 14/23
15 [2] 4/23 6/1                       all [21]                                  case [25]
16 [1] 14/24                          Allen [1] 2/7                             cases [8] 3/17 3/25 5/16 6/10 7/11
172 [1] 13/4                          allow [1] 9/8                              9/14 10/20 11/7
18 [1] 4/13                           allows [1] 6/1                            cause [4] 1/2 1/20 7/22 14/11
19th [1] 1/18                         already [1] 4/23                          central [1] 10/15
                                      also [2] 5/2 10/12                        certainly [1] 3/19
2                                     always [1] 3/23                           certify [3] 14/6 14/13 14/16
20 [2] 9/12 9/14                      am [11] 3/25 4/8 4/9 4/11 4/14 8/22 9/1   chambers [1] 14/12
201 [1] 14/23                          11/12 12/14 13/12 13/13                  chance [2] 11/18 12/22
2015 [1] 1/18                         ambivalence [1] 3/16                      circumstance [1] 3/24
2015-28543 [1] 1/2                    amount [1] 8/11                           circumstances [1] 11/3
2777 [1] 2/7                          analogous [2] 7/10 7/11                   cite [1] 7/10
28543 [1] 1/2                         analogy [1] 9/2                           cited [3] 3/25 6/11 11/7
                                      Anderson [2] 14/4 14/20                   City [1] 3/8
3                                     another [1] 8/9                           claim [1] 7/10
3600 [1] 2/11                         answer [2] 13/10 13/14                    claims [3] 7/24 8/6 8/14
6                                     answers [1] 12/16                         CLAWATER [1] 2/7
                                      any [3] 4/8 7/8 14/15                     COLEMAN [1] 2/11
6030 [1] 14/24                        anything [1] 8/20                         come [4] 8/19 9/5 9/20 10/2
6600 [1] 2/8                          anyway [3] 3/12 4/14 6/2                  comfortable [2] 10/9 10/10
7                                     appeal [4] 3/7 3/21 5/11 11/1             complex [1] 10/14
                                      Appeals [9] 6/1 6/7 7/1 10/25 11/14       computerized [1] 1/22
713-368-6030 [1]   14/24               11/14 11/18 12/18 13/11                  CONCLUDED [1] 13/17
713-522-7400 [1]   2/4                APPEARANCES [1] 2/1                       conditional [4] 5/5 7/7 7/14 8/17
713-632-8002 [1]   2/12               appellate [2] 9/15 9/23                   conference [2] 1/11 4/20
713-650-6600 [1]   2/8                appreciate [2] 4/18 4/20                  confident [1] 3/13
7400 [1] 2/4                          appropriate [1] 9/2                       confusing [1] 3/7
77002 [1] 14/23                       are [28]                                  constraints [1] 12/20
77004 [1] 2/4                         argue [2] 8/23 9/21                       contains [1] 14/7
77010 [1] 2/12                        argued [1] 8/13                           contend [1] 12/15
77019 [1] 2/8                         argument [3] 7/5 8/4 11/6                 context [1] 3/10
7th [1] 2/7                           arguments [1] 7/20                        continuance [1] 8/23
8                                     ARNOLD [2] 1/6 2/9                        controlling [4] 7/5 10/15 11/15 12/12
                                      around [1] 9/11                           conveniens [3] 5/6 7/7 8/4
8002 [1] 2/12                         as [4] 4/14 4/15 10/4 10/20               convince [1] 6/6
877 [1] 14/21                         asking [1] 5/8                            correct [3] 5/10 12/18 14/7
9                                     Assuming [1] 6/5                          correctly [1] 14/14
                                      available [2] 12/10 12/10                 cost [1] 14/16
909 [1] 2/11                                                                    could [1] 9/23
945 [1] 14/23                         B                                         couldn't [1] 7/23
A                                      back [7] 8/19 9/3 9/5 9/20 10/2 10/6     counsel [4] 2/5 2/9 2/13 14/9
                                        12/6                                    COUNTY [4] 1/5 1/21 14/2 14/22
abatement [2] 5/9 5/14                 be [15]                                  court [19]
ability [1] 8/13                       because [5] 3/8 5/8 10/13 11/3 12/10     Court's [1] 11/22
able [1] 8/5                           BECK [1] 2/13                            CSR [2] 14/20 14/21
about [12] 4/14 4/19 4/25 5/3 5/14 6/5 become [1] 9/24                          currently [1] 11/24
 7/2 7/15 7/25 8/23 10/22 11/25        been [8] 5/4 6/25 7/8 7/13 7/16 8/5
above [3] 1/19 14/6 14/10               10/5 12/23                              D
above-styled [1] 14/10                 before [4] 1/20 3/22 5/25 9/15           Dahl [1] 8/9
above-titled [1] 1/19                  behalf [1] 8/2                           David [2] 2/2 8/2
absolutely [2] 3/13 8/1                being [1] 8/9                            day [3] 1/18 4/24 8/7
action [1] 7/22                        believe [2] 9/10 9/11                    days [1] 6/1
added [1] 9/9                          believed [1] 3/23                        deal [1] 4/16
additional [1] 9/10                    benefit [1] 8/15                         dealt [3] 7/13 7/13 12/20
address [1] 11/16                      black [2] 9/5 10/2                       decide [2] 5/14 7/3
addressed [2] 5/19 7/8                 both [3] 6/21 6/24 7/1                   decided [1] 7/16
addressing [1] 5/7                     BRAR [1] 2/13                            decision [1] 7/2
admissions [5] 12/24 12/25 13/5 13/6 bring [1] 9/15                             DEFENDANT [1] 2/9
 13/14                                 brought [1] 4/24                         defendants [2] 2/13 12/1
admit [1] 3/4                          burden [1] 9/16                          delayed [1] 8/24
again [4] 5/25 7/25 8/25 10/8                                                   denial [1] 4/22
agree [8] 6/14 6/21 6/24 7/1 7/2 11/14 C                                        denials [1] 3/6
 12/3 12/14                            came [1] 1/19


                                          TERRI W. ANDERSON, CSR
                                  201 CAROLINE, #945 HOUSTON, TEXAS 77002
                                             Word Index - Status Conference - p. 2

                                         FIRM [1] 2/3                                isn't [2] 11/5 11/6
D                                        first [3] 3/4 6/20 11/10                    issue [12] 4/15 5/3 5/9 5/20 7/6 7/8 7/9
deny [4] 4/2 4/3 4/10 10/23              Floor [1] 2/7                                7/15 7/18 8/2 10/15 11/15
deprive [1] 8/15                         following [1] 1/18                          issues [6] 5/25 6/2 7/18 10/14 12/12
determinative [1] 10/16                  foregoing [1] 14/6                           12/15
determined [1] 10/16                     forum [3] 5/5 7/7 8/3                       it [60]
did [3] 4/6 4/10 6/22                    found [1] 11/5                              ITKIN [2] 1/6 2/9
didn't [1] 6/21                          frankly [3] 3/20 6/10 11/20                 itself [1] 7/8
different [2] 4/21 7/20                  further [2] 14/13 14/16
difficulty [2] 7/18 8/25                                                             J
disagreement [1] 12/11                   G                                           JAS [1] 2/13
discovery [5] 4/25 8/11 12/24 12/25      get [3] 4/13 10/9 10/18                     Judge [1] 1/20
13/12                                    gets [1] 8/24                               judgment [7] 4/2 4/3 4/4 4/9 4/22 5/13
dismiss [1] 11/2                         give [5] 11/13 11/16 11/17 12/21 13/13       9/22
dismissal [3] 7/7 7/14 8/18              giving [1] 11/23                            judicial [2] 1/6 7/3
dismissing [1] 9/6                       go [9] 3/3 3/22 5/16 8/18 9/13 10/6         jump [1] 11/16
dispositive [2] 9/7 9/19                 12/6 13/10 13/13                            jurisdiction [8] 3/6 4/17 5/10 7/12 9/18
distinction [1] 4/8                      going [16]                                   10/23 11/3 11/4
DISTRICT [4] 1/4 1/6 14/5 14/22          got [2] 10/6 11/15                          jurisdictions [1] 7/11
do [22]                                  grant [2] 5/5 9/18                          just [5] 7/18 9/16 10/3 10/22 12/1
does [1] 6/11                            granted [1] 4/11
doesn't [2] 6/11 11/19                   grasp [1] 7/19                              K
doing [4] 9/17 10/9 10/10 12/25          guess [2] 3/7 3/9                           Kassab [3] 2/2 2/3 8/2
DOMINGUEZ [1] 1/4                                                                    kind [2] 10/11 10/12
don't [13] 4/6 4/14 5/19 6/18 7/2 8/19   H                                           know [7] 4/6 4/14 5/8 5/19 6/3 10/7
8/23 9/1 10/9 10/10 10/24 11/4 12/19     had [7] 3/21 4/16 5/5 6/7 6/21 7/19          10/24
done [1] 5/21                            10/13
doorway [1] 11/10                        handled [1] 8/3                             L
doubt [1] 10/12                          happen [3] 6/11 6/21 6/24                   lack [3] 3/16 10/23 11/3
doubts [1] 11/19                         happening [1] 5/4                           Lance [2] 12/9 12/10
down [3] 8/19 10/2 12/4                  happens [1] 10/8                            last [1] 3/19
downside [1] 12/19                       HARRIS [5] 1/5 1/21 14/2 14/5 14/22         law [10] 2/3 5/6 5/7 6/19 7/6 7/24 8/6
                                         has [5] 5/4 7/8 7/13 7/13 12/23              8/9 8/14 10/6
E                                        hasn't [1] 7/16                             lawyer [2] 8/9 8/22
e-mails [1] 12/7                         have [37]                                   lawyers [3] 5/4 8/3 8/15
early [1] 5/13                           haven't [3] 5/21 8/20 9/10                  layers [1] 7/20
end [1] 8/7                              he [1] 12/10                                left [1] 8/6
ended [1] 10/11                          hear [2] 6/15 11/8                          legal [1] 10/15
enough [1] 8/23                          HEARING [1] 13/17                           let [2] 13/11 13/13
entire [1] 9/4                           held [2] 1/19 1/21                          let's [2] 8/22 12/17
entitled [1] 8/10                        help [1] 4/5                                level [1] 3/16
essence [1] 11/6                         here [6] 3/3 7/5 9/18 10/1 10/16 12/5       lick [1] 6/7
essentially [1] 8/12                     hereby [1] 14/6                             like [3] 3/19 7/19 8/21
ET [2] 1/4 1/6                           him [1] 12/11                               limited [2] 8/10 8/12
even [5] 7/21 7/24 8/6 8/14 12/15        hole [2] 9/5 10/2                           litigate [3] 9/4 9/14 10/7
ever [1] 9/24                            honestly [1] 9/25                           little [1] 4/21
every [5] 3/8 4/1 4/2 4/9 6/23           Honor [4] 8/1 9/9 12/13 13/8                LLP [4] 1/6 2/7 2/9 2/11
everyone [2] 4/5 12/6                    Honorable [1] 1/20                          long [1] 5/1
evidence [1] 14/8                        Houston [8] 1/21 2/4 2/6 2/7 2/8 2/12       look [2] 6/2 12/11
exactly [1] 8/21                         3/8 14/23                                   looked [1] 5/18
exhibits [1] 14/14                       how [5] 3/17 5/19 8/12 9/8 10/14            looking [1] 5/18
expert [1] 8/8                           however [1] 4/24                            LOPEZ [1] 1/4
Expiration [1] 14/24                                                                 lost [1] 8/20
                                         I                                           lot [5] 4/12 6/2 6/18 12/19 12/24
F                                        idea [1] 9/19
fact [1] 7/23                            important [1] 5/24                          M
fairly [1] 3/4                           impression [2] 3/20 10/3                    machine [1] 1/23
fairness [1] 13/8                        inappropriate [1] 10/25                     mails [1] 12/7
false [1] 13/9                           inaudible [1] 7/4                           make [1] 7/2
familiarity [1] 3/17                     included [1] 14/9                           making [1] 3/14
Fannin [1] 2/11                          instances [1] 6/25                          malpractice [3] 3/17 3/23 8/16
feel [2] 10/9 10/10                      instruction [1] 11/23                       many [4] 4/24 7/18 9/8 12/16
felt [1] 7/19                            intense [1] 4/25                            may [3] 3/16 10/4 10/5
FIELDS [1] 2/13                          interlocutory [1] 3/7                       Maybe [2] 6/12 10/8
file [2] 3/22 9/14                       involved [1] 12/16                          me [6] 3/18 5/11 6/5 7/25 11/19 14/12
filed [1] 9/11                           involves [1] 4/23                           means [1] 4/4
final [1] 9/22                           is [84]                                     Mexican [4] 7/24 8/6 8/9 8/14



                                            TERRI W. ANDERSON, CSR
                                    201 CAROLINE, #945 HOUSTON, TEXAS 77002
                                          Word Index - Status Conference - p. 3

                                         perhaps [1] 11/15                         ruling [3] 3/14 4/16 10/4
M                                        period [1] 6/19                           run [2] 3/18 5/13
Mexico [5] 5/17 8/10 8/19 9/3 9/22       permissive [2] 5/11 11/1                  RUSSELL [1] 2/13
Mike [1] 1/20                            place [1] 11/24
mill [1] 5/13                            plaintiff [1] 5/3                         S
Miller [1] 1/20                          plaintiff's [1] 8/22                      said [4] 3/19 6/7 7/1 8/18
mind [1] 10/13                           plaintiffs [4] 2/5 4/23 8/2 9/8           same [4] 3/10 4/2 8/10 8/22
misimpression [1] 3/5                    Plea [3] 4/16 5/10 9/18                   Samuel [1] 2/6
money [1] 4/5                            Pleas [1] 3/6                             save [1] 4/12
months [2] 4/13 8/24                     point [3] 8/20 9/3 12/17                  say [9] 3/13 4/2 6/6 6/14 6/24 8/22
more [5] 4/24 4/25 5/1 10/5 10/21        pointed [1] 10/20                          10/14 10/25 11/25
morning [1] 4/19                         portions [1] 14/8                         saying [3] 4/20 7/21 7/22
most [1] 11/20                           POST [1] 2/13                             says [2] 8/9 11/18
motion [1] 8/4                           pragmatic [1] 10/5                        SCOTT [1] 2/7
Mr [3] 2/2 2/6 2/10                      precisely [1] 9/25                        see [8] 4/8 6/1 9/20 10/8 11/18 12/3
much [2] 4/25 4/25                       prefer [1] 12/9                            12/17 12/19
multiplicity [1] 10/13                   preparation [1] 14/17                     seem [1] 11/19
my [8] 3/16 7/18 8/23 8/25 9/17 10/3     prerogative [2] 3/9 10/19                 seems [3] 3/18 5/11 10/20
10/4 11/19                               presenting [1] 4/15                       send [2] 9/3 10/1
                                         Presiding [1] 1/21                        sending [1] 12/7
N                                        prevent [1] 11/10                         sense [3] 6/7 9/16 9/17
narrow [1] 10/15                         probably [2] 3/18 10/17                   sensible [1] 12/21
need [3] 5/16 5/17 13/2                  problem [3] 7/17 8/18 12/13               set [1] 4/19
never [7] 9/5 9/17 9/20 9/20 9/24 10/2   proceedings [4] 1/19 1/22 14/8 14/14      seven [1] 5/21
10/7                                     process [3] 5/20 5/23 11/11               SHEPHERD [1] 2/7
nine [1] 3/22                            proper [1] 11/6                           shot [1] 13/13
nine yards [1] 3/22                      properly [1] 8/4                          should [1] 4/11
no [6] 1/2 3/9 5/6 5/7 7/2 13/2          proposed [1] 12/24                        sides [3] 6/21 6/24 7/1
non [3] 5/5 7/7 8/3                      prove [1] 8/13                            simply [1] 5/25
normal [1] 4/22                          pursue [6] 5/15 5/16 7/23 8/5 8/12 8/14   Simpson [1] 2/10
not [22]                                 pursued [1] 9/23                          since [1] 5/2
nothing [1] 7/12                         put [1] 12/1                              single [2] 3/8 4/3
novel [3] 5/3 7/9 7/15                                                             sit [1] 12/4
now [2] 4/13 6/23                        Q                                         situation [1] 5/12
numbered [2] 1/20 14/11                  question [1] 12/16                        six [1] 8/24
                                         questions [1] 13/9                        so [6] 5/14 7/17 8/13 11/15 12/11
O                                        quite [1] 9/11                             12/16
obvious [2] 3/4 3/10                                                               solution [1] 12/21
occurred [1] 14/11                       R                                         some [6] 3/16 3/18 7/10 8/15 9/10
October [1] 1/18                         raised [1] 6/3                             10/15
offered [1] 14/15                        read [1] 3/12                             something [1] 12/4
office [1] 12/6                          Reagan [1] 2/10                           Sometimes [1] 6/22
Official [2] 14/4 14/21                  really [6] 4/1 4/19 5/8 5/18 5/20 9/7     Sorry [1] 10/6
often [5] 5/19 6/11 6/22 10/4 10/21      reasonable [2] 7/19 12/20                 sort [2] 8/21 10/12
okay [1] 3/13                            reasons [1] 10/11                         specific [1] 3/9
one [5] 3/4 3/8 7/18 12/1 12/23          RECORD [4] 1/1 14/10 14/13 14/17          specifically [1] 5/7
ones [1] 9/10                            REDDEN [1] 2/13                           Spend [1] 4/5
open [1] 14/11                           reflects [1] 14/14                        St [1] 2/11
opinion [3] 4/13 6/14 6/17               refused [1] 11/8                          start [1] 12/6
opinions [1] 6/13                        regard [1] 3/14                           STATE [2] 14/1 14/5
opportunity [4] 5/15 11/13 11/17 11/24   remedies [1] 9/23                         States [1] 8/11
order [3] 5/24 11/24 12/1                remedy [1] 9/7                            status [2] 1/11 4/19
other [6] 4/9 4/24 5/6 7/11 9/23 14/8    reported [2] 1/22 14/12                   statute [4] 5/11 5/19 6/20 11/4
otherwise [1] 7/25                       Reporter [2] 14/4 14/21                   statutory [1] 3/9
our [1] 7/5                              REPORTER'S [4] 1/1 14/10 14/13            stay [3] 12/24 13/11 13/12
out [4] 7/22 10/5 10/20 12/10             14/17                                    stenotype [1] 1/22
outcome [2] 10/9 10/16                   requested [1] 14/8                        step [2] 5/20 5/23
outset [1] 8/4                           Requests [1] 13/6                         still [4] 3/16 5/15 6/6 10/10
                                         required [1] 13/12                        Street [1] 2/3
P                                        requirement [1] 3/19                      struggled [1] 5/9
paid [2] 14/18 14/18                     resources [1] 7/3                         styled [1] 14/10
paid/will [1] 14/18                      respective [1] 14/15                      subject [1] 3/6
Parkway [1] 2/7                          response [1] 10/18                        submit [1] 12/2
particularly [1] 5/2                     right [8] 3/14 4/6 4/10 5/16 6/8 6/9      submitted [2] 5/24 8/8
parties [3] 4/23 14/9 14/15               9/15 10/21                               succeed [1] 8/19
passed [1] 6/21                          ripe [3] 7/6 7/25 9/24                    sue [1] 5/4
perfect [1] 5/12                         ripeness [1] 3/15                         sufficient [1] 3/15



                                           TERRI W. ANDERSON, CSR
                                   201 CAROLINE, #945 HOUSTON, TEXAS 77002
                                          Word Index - Status Conference - p. 4


S                                        V
Summary [6] 4/1 4/3 4/3 4/9 4/22 5/13    variety [1] 10/11
sure [7] 4/1 4/6 4/8 4/10 4/14 6/16      very [4] 5/13 6/11 6/22 9/25
 12/15                                   volume [2] 1/1 14/10
system [2] 9/4 9/15                      VOLUMES [1] 1/1
T                                        W
take [2] 3/21 9/14                       want [5] 3/12 11/16 12/4 12/5 12/8
takes [1] 3/8                            wants [1] 13/11
talking [4] 4/25 5/2 7/15 10/22          was [11] 3/4 3/5 3/7 3/10 3/13 3/13
Telephone [4] 2/4 2/8 2/12 14/24         3/19 4/15 6/20 11/25 14/18
tell [4] 6/5 7/25 9/3 11/12              wavering [1] 3/5
term [1] 5/1                             way [2] 4/7 9/14
terms [1] 7/13                           we [35]
Terri [2] 14/4 14/20                     well [3] 4/18 8/23 13/4
testimony [1] 8/8                        were [5] 3/6 5/25 6/6 9/22 14/12
TEXAS [12] 1/5 1/21 2/4 2/8 2/12 5/7     what [17]
 7/8 14/1 14/6 14/21 14/22 14/23         when [8] 4/10 4/13 4/16 4/22 5/4 6/7
than [2] 4/21 10/21                      6/14 6/20
that [87]                                where [3] 7/1 10/11 11/7
their [7] 5/4 7/3 7/23 8/13 8/13 8/16    whether [8] 3/14 4/10 5/3 5/9 6/3 7/6
 12/6                                    9/21 9/22
them [9] 3/7 8/15 9/3 9/3 9/8 10/8       which [3] 4/20 7/14 14/11
 10/18 11/23 13/11                       while [2] 12/4 12/25
then [5] 3/25 6/23 9/21 11/2 11/15       whole [3] 3/22 9/19 12/17
there [22]                               Why [1] 13/2
these [1] 10/7                           will [19]
they [35]                                wishful [1] 10/17
they're [5] 8/10 8/12 11/20 12/18 13/9   within [2] 6/1 12/20
thing [4] 4/2 4/10 10/13 12/23           words [1] 5/6
things [1] 4/6                           would [8] 4/5 4/12 5/12 6/3 7/6 8/3 8/5
think [17]                               12/9
thinking [1] 10/17                       wouldn't [1] 4/12
thinks [1] 12/18                         write [2] 6/14 6/16
this [25]                                writing [1] 14/9
those [4] 6/2 8/5 8/14 11/3              wrong [2] 4/11 11/15
thought [3] 3/11 3/20 3/21
through [4] 8/15 9/4 9/14 11/11          Y
time [4] 3/19 4/13 11/20 12/20           yards [1] 3/22
titled [1] 1/19                          yeah [1] 4/11
today [2] 4/15 12/5                      years [1] 5/22
together [1] 12/1                        yes [4] 6/6 6/8 6/14 13/7
total [1] 14/16                          yet [1] 9/11
town [1] 12/11                           YETTER [1] 2/11
transcription [1] 14/7                   you [42]
trial [2] 1/2 11/9                       you-all [4] 7/21 12/3 12/5 13/13
true [2] 13/9 14/7                       your [9] 4/22 5/12 8/1 9/9 10/20 11/6
truly [1] 14/14                           11/13 12/13 13/8
try [4] 3/21 4/4 4/12 13/12
turn [1] 10/5
two [3] 4/23 5/20 5/23
two-step [2] 5/20 5/23
typically [1] 3/18
U
U.S [3] 7/24 8/7 8/14
under [5] 3/5 3/20 5/10 11/3 11/4
understand [1] 11/22
United [1] 8/11
unless [1] 13/12
unnecessary [1] 11/11
unreasonable [1] 11/19
unsure [1] 4/15
up [3] 3/8 3/21 10/11
us [3] 6/1 8/20 11/10
using [1] 7/3



                                            TERRI W. ANDERSON, CSR
                                    201 CAROLINE, #945 HOUSTON, TEXAS 77002
