                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 25 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LAURO GONZALEZ MORENO,                           No. 09-55672

              Plaintiff - Appellant,             D.C. No. 2:07-cv-07981-ABC-JC

  v.
                                                 MEMORANDUM *
OMNILIFE USA, INC.,

              Defendant - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                        Argued and Submitted May 9, 2012
                               Pasadena, California

Before: NOONAN and FISHER, Circuit Judges, and GRITZNER, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
             The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.
      Lauro Gonzalez Moreno appeals from the district court’s order dismissing

on forum non conveniens grounds his case against Omnilife USA, Inc. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Moreno brought this lawsuit in California state court against Omnilife USA,

several related Mexican corporations, and Omnilife USA’s owner for claims

arising out of a breach of an employment agreement. Omnilife USA removed this

action to the United States District Court for the Central District of California

based on diversity of citizenship jurisdiction. Shortly after filing this lawsuit,

Moreno filed an action before a Mexican special arbitration board asserting claims

under Mexican law arising out of the same events that led to this lawsuit. This

lawsuit proceeded in district court but was ultimately dismissed on forum non

conveniens grounds. The district court found that Mexico provided an adequate

alternative forum and that the balance of private and public interest factors

weighed in favor of dismissal. As of the date of dismissal, Moreno had only been

able to serve Omnilife USA. This appeal followed.

      During the pendency of this appeal, the Mexican special arbitration board

dismissed Moreno’s case for lack of jurisdiction, finding that Moreno did not meet

the requirements imposed by Mexican law when an employee is to provide

services abroad. However, on direct constitutional appeal of that decision, a


                                           2
Mexican appellate court reversed the special arbitration board’s dismissal and

directed the special arbitration board to consider the merits of Moreno’s claims.1

      On appeal, Moreno challenges the district court’s finding that Mexico is an

adequate alternative forum. “We review the district court’s order dismissing the

lawsuit on the basis of forum non conveniens for an abuse of discretion.” Carijano

v. Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011).

      The requirement for an adequate alternative forum is usually satisfied if a

defendant is amenable to process in the foreign jurisdiction. Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 254 n.22 (1981). “In rare circumstances, however, where the

remedy offered by the other forum is clearly unsatisfactory, the other forum may

not be an adequate alternative, and the initial requirement may not be satisfied.”

Id. One of these rare circumstances would be “where the alternative forum does

not permit litigation of the subject matter of the dispute.” Id. Omnilife USA

presented undisputed evidence that Mexico would have jurisdiction over and

would provide a remedy for claims like Moreno’s. The district court also found

that Moreno himself considered Mexico to be an adequate alternative forum

because Moreno voluntarily chose to file suit there. Therefore, the district court


      1
        Moreno’s Motion Requesting Judicial Notice filed June 17, 2010 (ECF No.
18) and Omnilife USA’s Motion for Judicial Notice filed November 8, 2011 (ECF
No. 53) regarding tribunal proceedings in Mexico are both granted.

                                          3
did not abuse its discretion in concluding that Mexico is an adequate alternative

forum.

      Moreno argues, however, that subsequent developments in his action in

Mexico require reversal of the forum non conveniens dismissal. In Gutierrez v.

Advanced Medical Optics, Inc., 640 F.3d 1025, 1031 (9th Cir. 2011), we held

      that when intervening developments in a foreign jurisdiction, subsequent
      to a district court’s initial forum non conveniens ruling, could leave
      plaintiffs without an available forum in which to bring their claims, it is
      appropriate to remand the matter back to the district court so it can
      reconsider its decision based upon updated information.

In Gutierrez, while the appeal of the forum non conveniens dismissal was pending

before this court, the plaintiff commenced litigation in a foreign court, which

dismissed for lack of jurisdiction. Id. at 1028. We found remand appropriate

because the intervening developments in the foreign jurisdiction—the foreign court

declining to exercise jurisdiction over the plaintiffs’ cases—left the plaintiffs

without an available forum. Id. at 1031.

      At oral argument in the present case, Moreno admitted that his action in

Mexico is moving forward but asserted that some, but not all, of the defendants in

the Mexican action were now challenging service of process. Even if this

challenge to service, which is not in the record, were successful, Moreno would

still be able to pursue his claims against the remaining defendants, and Moreno has


                                           4
made no showing that the absence of any of the defendants who are allegedly

challenging service would impact his remedy. Therefore, this case is readily

distinguishable from Gutierrez. Because Mexico is still an available forum and

Moreno is actively pursuing his claims there, remand is inappropriate.

      Moreno also challenges the timeliness of Omnilife USA’s motion to dismiss.

Omnilife USA filed its motion to dismiss the day before the motion cutoff date and

more than one year after Moreno filed his action in Mexico. Citing no binding

authority, Moreno argues that the delay in filing the motion was unreasonable and

should result in a waiver. During this time, however, Moreno did not engage in

motion practice or propound any discovery, and Moreno was actively litigating his

claims in Mexico. Assuming without deciding that waiver of a right to bring a

motion to dismiss for forum non conveniens could occur, we are satisfied that

under the facts of this case no such waiver occurred.

      AFFIRMED.




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