Francisca Gutierrez, et al v. Advanced Medical Optics, Inc.

Filing

FILED OPINION (JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR. and ROBERT CLIVE JONES) VACATED; REMANDED. Judge: JBR Concurring & Dissenting, Judge: MDS Authoring, Judge: RCJ . FILED AND ENTERED JUDGMENT. [7708289]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCA PALOMINO GUTIERREZ;
PEDRO CEDILLO RODRIGUEZ;
ANGELICA ALDANA ESPARZA;
RAFAEL SALDANA TREJO; MARIA
REYES RESENDIZ MIRANDA;
RODRIGUEZ HERNANDEZ TOMAS;
FELIPA GONZALEZ CORONADO; and
MARIA DEL SOCORRO LIERIO
HERNANDEZ,
Plaintiffs-Appellants,
v.
ADVANCED MEDICAL OPTICS, INC., a
Delaware corporation,
Defendant-Appellee.





No. 09-55860
D.C. No.
8:08-cv-01130DOC-AN
OPINION



Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
November 4, 2010—Pasadena, California
Filed April 7, 2011
Before: Johnnie B. Rawlinson and Milan D. Smith, Jr.,
Circuit Judges, and Robert C. Jones, District Judge.*
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Rawlinson
*The Honorable Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.

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COUNSEL
Edward C. Snyder and Jesse R. Castillo, Castillo Snyder,
P.C., Attorneys for plaintiffs-appellants Francisca Palomino
Gutierrez, et al.
Richard H. Nakamura, Jr., Maureen M. Home, Marilyn Muir
Jager, and Wendi J. Frisch, Morris Polich & Purdy, LLP,
Attorneys for defendant-appellee Advance Medical Optics,
Inc.

OPINION
M. SMITH, Circuit Judge:
Plaintiffs appeal the district court’s dismissal of their complaint on forum non conveniens grounds. Plaintiffs, who were
grievously injured when they developed eye infections after
surgery in Mexico, initially brought suit against DefendantAppellee Advanced Medical Optics, Inc. (Defendant) in the
Central District of California. Defendant moved to dismiss the
lawsuit, arguing that Mexico was an adequate alternative
forum, and that both public and private interests weighed in
favor of dismissal. The district court agreed, and dismissed
the case without placing any conditions on the dismissal. The
district court also denied Plaintiffs’ motion for reconsideration of its dismissal order.
Plaintiffs appealed to our court, but contemporaneously
filed an action in Mexico. During the pendency of Plaintiffs’

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appeal, the Mexican courts declined to exercise jurisdiction
over Plaintiffs’ suit filed there. Plaintiffs argue that the district
court erred in finding that Mexico was an available alternative
forum and by not placing conditions on the dismissal of the
case.
While we conclude that, based on the evidence before it at
the time, the district court did not err in its initial forum non
conveniens analysis, intervening events compel a reconsideration of its ruling. We therefore vacate and remand to the district court.
BACKGROUND, PRIOR PROCEEDINGS, AND
JURISDICTION
For purposes of this appeal, we accept as true the facts
alleged in the complaint. See Cariajano v. Occidental Petroleum Corp., 626 F.3d 1137, 1142 (9th Cir. 2010) (citing
Vivendi SA v. T-Mobile USA, Inc., 586 F.3d 689, 691 n.3 (9th
Cir. 2009).
Plaintiffs are elderly residents of Monterrey, Nuevo Leon,
Mexico, who each suffered grievous injuries in October 2007
after undergoing eye surgery in that Mexican state. Specifically, between October 11, 2007, and October 16, 2007, each
of the eight Plaintiffs had cataract surgery performed on one
eye by a Mexican surgeon with twenty-five years of experience and a specialization in cataract surgery. Within hours
after completion of their surgeries, each Plaintiff contracted a
severe case of bacterial endophthalmitis, and suffered severe
pain in the affected eye. Plaintiffs further suffered symptoms
of red eyes filled with runny puss, fevers, nausea, and vomiting. Plaintiffs were treated at local hospitals for their injuries,
some for several weeks. Ultimately, physicians were compelled to remove the infected eye of three of the Plaintiffs,
and the other five went completely blind in the affected eye.
Plaintiffs allege that their injuries were caused by Defendant’s defective Healon viscoelastic product, which was used

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in all of the eye surgeries. Defendant manufactured, or subcontracted manufacture of, the Healon product used in each
of the surgeries. After the Plaintiffs’ surgical complications
occurred, unopened batches of Defendant’s Healon product
were tested and found to be infected with a virulent strain of
bacteria that causes endophthalmitis.
Plaintiffs initially filed suit against Defendant in the Central
District of California. Defendant’s1 corporate headquarters
and its principal place of business are located in Santa Ana,
California. Defendant does not have a place of business, nor
is it domiciled, in Mexico. The district court dismissed this
case on forum non conveniens grounds on April 2, 2009, finding that Mexico was an available and adequate forum because
Defendant agreed to submit to the jurisdiction of the Mexican
courts. The district court’s order of dismissal did not include
conditions or a “return-jurisdiction” clause to become effective in the event Mexico’s courts declined jurisdiction.
Plaintiffs filed this appeal on June 5, 2009. On June 22,
2009, Plaintiffs commenced litigation against Defendant in
the Mexican federal district court in Nuevo Leon, Mexico.
The parties do not dispute that during the pendency of this
appeal, the Mexican Federal District Court dismissed the
Plaintiffs’ case for lack of jurisdiction. That dismissal was
affirmed by the Mexican Federal Court of Appeals. Plaintiffs
then filed a federal constitutional challenge in Mexico before
the Amparo court, which also affirmed the Mexican Federal
District Court’s dismissal of the case on November 12, 2009.
The parties dispute the reasons for the Mexican courts’ dismissal of the Plaintiffs’ complaint filed there.2
1

Defendant is now known as Abbot Medical Optics, Inc.
Because there is an issue of fact as to why the Mexican courts did not
have jurisdiction and dismissed the case, we previously declined to take
judicial notice of the opinions of the Mexican courts.
2

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We have jurisdiction pursuant to 28 U.S.C. § 1291. The
district court’s dismissal of this case on forum non conveniens
grounds is reviewed for an abuse of discretion. Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 257 (1981); Lueck v. Sundstrand
Corp., 236 F.3d 1137, 1143 (9th Cir. 2001).
DISCUSSION
A district court has discretion to decline to exercise jurisdiction by invoking the doctrine of forum non conveniens in
a case where litigation in a foreign forum would be more convenient for the parties. Lueck, 236 F.3d at 1142. However, the
doctrine of forum non conveniens is “an exceptional tool to be
employed sparingly.” Dole Food Co. v. Watts, 303 F.3d 1104,
1118 (9th Cir. 2002) (internal quotation marks omitted).
Before invoking the doctrine of forum non conveniens to dismiss a case, a district court must examine: (1) whether an adequate alternative forum exists, and (2) whether the balance of
private and public interest factors favors dismissal. Piper Aircraft, 454 U.S. at 254 n.22; Lueck, 236 F.3d at 1142. “The
defendant bears the burden of proving the existence of an adequate alternative forum.” Lueck, 236 F.3d at 1142 (quoting
Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983)).
I.

Mexico’s Availability as an Alternative Forum

[1] Before the doctrine of forum non conveniens may be
applied to dismiss a case, a district court must first determine
whether an adequate alternative forum is available to the
plaintiff. Lueck, 236 F.3d at 1143. An alternative forum is
adequate if the intended forum is capable of “provid[ing] the
plaintiff with a sufficient remedy for his wrong.” Dole Food,
303 F.3d at 1118. “An alternative forum ordinarily exists
when defendants are amenable to service of process in the foreign forum” and “ ‘when the entire case and all parties can
come within the jurisdiction of that forum.’ ” Id. (emphasis
omitted) (quoting Alpine View Co. v. Atlas Copco, 205 F.3d
208, 221 (5th Cir. 2000)). Plaintiffs do not challenge the ade-

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quacy of Mexico as an alternative forum if it takes jurisdiction; rather, they argue that the district court erred in finding
Mexico was an available forum.
Plaintiffs argue that the District Court erred because it
shifted the burden of proof on the availability of an alternative
forum to them. Plaintiffs further contend that the district court
erred in granting the motion to dismiss when experts disagreed as to whether Mexico would have jurisdiction over the
case. We disagree and do not fault the district court’s initial
forum non conveniens analysis.
Here, the district court considered the expert opinions presented by both sides in determining that Mexico was an available forum. Defendant presented evidence through its expert
that Mexican courts would have jurisdiction of the case if
Defendant agreed to submit to its forum. Defendant’s expert
opined that “the Mexican court in Nuevo Leon would have
jurisdiction over this lawsuit under the express submission
doctrine.”
[2] Additionally, Plaintiffs’ expert on Mexican law stated
that parties could agree to submit to jurisdiction. According
to Plaintiffs’ expert: “As a general rule, especially in all kinds
of contracts, the parties will be allowed to agree to designate
a forum for the resolution of disputes but both parties have to
fully agree on such jurisdiction clause.” Plaintiffs’ expert
qualified his opinion by stating that it is not enough for one
party to submit to jurisdiction in Mexico; rather, both parties
must consent. Based on the evidence presented to the district
court, it appeared that Plaintiffs would be asserting their
claims and that Defendant had expressly agreed to submit to
Mexican jurisdiction. Ordinarily, to show an available forum,
all that is required is that the defendant is amenable to service
of process in the foreign jurisdiction. See Piper Aircraft, 454
U.S. at 254 n.22. Accordingly, we find that the district court
reasonably concluded that Mexico was an available alternative forum.

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Normally, the trial court’s decision, in the absence of other
facts, merits substantial deference. See Lueck, 236 F.3d at
1143 (“[W]here the court has considered all relevant public
and private interest factors, and where its balancing of these
factors is reasonable, its decision deserves substantial deference.” (quoting Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd.,
61 F.3d 696, 699 (9th Cir. 1995))). However, while “this case
looks like an easy candidate for a straightforward affirmance”
of the district court’s forum non conveniens analysis, In re
Bridgestone/Firestone, Inc., 420 F.3d 702, 705 (7th Cir.
2005), we cannot ignore the procedural history of this case in
Mexico after the district court rendered its decision.
[3] At its core, the doctrine of forum non conveniens is
concerned with fairness to the parties. See, e.g., Piper Aircraft, 454 U.S. at 255. We are therefore compelled to address
the fact that Mexico has declined to accept jurisdiction. Chief
Justice John Marshall proclaimed the judicial objective “that
every right, when withheld, must have a remedy, and every
injury its proper redress.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163 (1803) (internal quotation marks omitted);
see also Piper Aircraft, 454 U.S. at 254 n. 22 (explaining that
“where the remedy offered by the other forum is clearly
unsatisfactory, the other forum may not be an adequate alternative”). Here, to simply affirm the district court without
acknowledging that Plaintiffs do not have a forum in which
to bring their case would, apparently, be to leave their horrific
injuries wholly unredressed. As the Seventh Circuit stated in
similar circumstances, “[i]t would be unfair . . . to pretend that
nothing had occurred at all, particularly because the district
court’s assumption about the availability of a Mexican forum
might, in the end, prove to be erroneous.” In re Bridgestone/Firestone, Inc., 420 F.3d at 706.
We note that we are not the first circuit to address unusual
circumstances in which affirming a forum non conveniens dismissal would have potentially left plaintiffs without a forum.
In Bridgestone/Firestone, the district court dismissed a case

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involving a Mexican resident who was injured when his vehicle rolled over in Veracruz, Mexico. Id. at 703. While on
appeal to the Seventh Circuit, the Mexican courts ruled that
Mexico did not have personal jurisdiction over Ford and
Bridgestone/Firestone because, like Defendant here, they
were not domiciled in Mexico. Id. at 705. The Seventh Circuit
held that while it could not fault the district court’s forum non
conveniens analysis, it was appropriate to send the matter
back to the district court for additional findings about whether
the plaintiffs had abused the Mexican process by not indicating defendants’ willingness to submit to Mexico’s jurisdiction
or whether it was truly an unavailable forum. Id. at 706-07.
Similarly, other circuits have held that substantial changes
in law or politics after the district court’s forum non conveniens analysis may warrant revisiting its decision. In Abdullahi v. Pfizer, Inc., 562 F.3d 163, 172 (2d Cir. 2009), the
Second Circuit noted that after the plaintiffs appealed the district court’s dismissal on forum non conveniens grounds, “tectonic change . . . altered the relevant political landscape,”
which included the government of the foreign jurisdiction
bringing charges against the defendant. As a result, the defendant no longer sought a foreign venue. Id. at 189. The court
concluded that the matter was properly remanded for the district court to revisit its analysis. Id.; see also Bank of Credit
& Commerce Int’l (OVERSEAS) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246-47 (2d Cir. 2001) (remanding for the
district court to consider the implications of a new Pakistani
law that was enacted while the plaintiff’s appeal was pending).
[4] We are persuaded by the reasoning of our sister circuits, and join them in holding 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

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so it can reconsider its decision based upon updated information.
On remand, the district court should consider appropriate
evidence from the parties (remaining mindful that the burden
of showing the availability of an alternative forum remains
with the Defendant, Lueck, 236 F.3d at 1143), and make findings of fact as to why the Mexican courts declined to take
jurisdiction in this case. If the district court determines that
the primary reason the Mexican courts declined to take jurisdiction of Plaintiffs’ case was Plaintiffs’ actions or inactions
in the case, it retains discretion to again order dismissal, with
appropriate conditions, if any.
[5] On the other hand, if the district court determines that
the Mexican courts declined to take jurisdiction of Plaintiffs’
case because Defendant is not domiciled in Mexico and cannot submit to Mexico’s jurisdiction, it would be an abuse of
discretion for the district court to dismiss Plaintiffs’ case
based on forum non conveniens grounds.
Because we leave it to the district court to evaluate whether
the Plaintiffs “gamed” the system in Mexico, combined with
the fact that the district court retains the discretion to dismiss
the case if it makes such a finding, we disagree with our dissenting colleague’s view that we are rewarding scofflaws, and
encouraging litigants to manipulate the system. Dissent at
4743.
II.

Whether the District Court Erred by Not Including a
Return Jurisdiction Condition

Plaintiffs’ second assignment of error is that the district
court did not place any conditions on its dismissal of the case.
Plaintiffs argue that, because there was an evidentiary dispute
as to whether Mexico was an available forum, the district
court abused its discretion by failing to place any conditions
or include a “return jurisdiction” clause within its forum non

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conveniens dismissal order. Plaintiffs further urge us to adopt
out-of-circuit authority that it is a per se abuse of discretion
to not include conditions with a forum non conveniens dismissal. We decline to do so.
[6] We have previously held that whether a district court
places conditions on a forum non conveniens dismissal is
within the discretion of the court, under most circumstances.
Leetsch v. Freedman, 260 F.3d 1100, 1103-04 (9th Cir. 2001).
We have also declined to hold that a district court’s failure to
include a return jurisdiction clause in its order of dismissal is
a per se abuse of discretion. For example, in Leetsch, the
plaintiff argued that because the district court declined to
impose conditions retaining jurisdiction and providing for
return jurisdiction over the defendants, the district court’s
order should be reversed. Id. at 1103. Leetsch based his argument on case law from the Fifth Circuit, which held that “failure to impose a return jurisdiction clause was a per se abuse
of discretion.” Id. at 1104.
We rejected Leetsch’s argument on the grounds that a
bright line test of per se abuse of discretion for failing to
impose a return-jurisdiction clause was “not controlling in this
circuit.” Id. We reasoned that a bright line test would “contradict[ ] the Supreme Court’s observation that forum non conveniens determinations . . . ‘need to retain flexibility.’ ” Id.
(quoting Piper Aircraft, 454 U.S. at 249). As a three judge
panel of our court, we are not at liberty to overrule existing
precedent without having the matter considered en banc or a
contrary ruling by the Supreme Court. Miller v. Gammie, 335
F.3d 889, 889-900 (9th Cir. 2003) (en banc).
However, we have also determined that the inclusion of
conditions in some dismissal orders relying on the doctrine of
forum non conveniens is appropriate. In particular, “[a] district court can be required to impose conditions if there is a
justifiable reason to doubt that a party will cooperate with the
foreign forum.” Leetsch, 260 F.3d at 1104; see also Caria-

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jano, 626 F.3d at 1156 (holding that the district court abused
its discretion by failing to impose conditions on its dismissal
as the record showed justifiable reasons to doubt defendant’s
full cooperation in the foreign forum). Nonetheless, as we
stated in Leetsch, “[o]ur willingness to impose conditions in
some cases . . . does not create an inflexible requirement that
a trial court must impose similar conditions across the board.”
260 F.3d at 1104.
[7] Here, Defendant agreed in the district court to submit
to the jurisdiction of the Mexican court. Defendant provided
expert testimony that in Mexico, a defendant can submit to
jurisdiction in any Mexican court of law. In addition, Plaintiffs’ expert also opined that under Mexican law, a foreign
national defendant can agree to jurisdiction in Mexico, and
thereby provide jurisdiction to a court in Mexico. Thus, the
evidence before the District Court did not create a justifiable
doubt that Defendant would not cooperate with a foreign
forum. See Leetsch, 260 F.3d at 1104.
[8] On remand, if, within the limitations of this opinion,
the district court again dismisses the case, in light of new evidence before it, it retains discretion to reconsider its decision
to not impose conditions or a return-jurisdiction clause in its
order of dismissal.
CONCLUSION
For the foregoing reasons, we reject Plaintiffs’ arguments
that the district court abused its discretion by granting Defendant’s motion to dismiss Plaintiffs’ case on forum non conveniens grounds, based on the evidence before it at the time, and
by not imposing return conditions. We nonetheless recognize
that subsequent changes in the factual circumstances previously considered by the district court compel a new forum non
conveniens analysis based upon those new facts. We therefore
vacate the district court’s dismissal and remand the case to the

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district court for further proceedings consistent with this opinion.
VACATED AND REMANDED.

RAWLINSON, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues in the majority that the dismissal of this case on forum non conveniens grounds is
reviewed for an abuse of discretion. I also agree that the district court acted within its discretion when it granted the
Defendant’s motion to dismiss. Nevertheless, the majority
goes further and holds that the district court must now reconsider its admittedly correct ruling. I expressly decline to join
that portion of the majority opinion. I am not convinced that
we “are therefore compelled to address the fact that Mexico
has declined to accept jurisdiction.” Majority Opinion, p.
4737. Indeed, the fact that a court in Mexico declined to
accept jurisdiction says nothing about whether Mexico was an
alternative forum for Plaintiffs’ lawsuit. Indeed, courts in this
country routinely dismiss cases due to a lack of jurisdiction
for a variety of reasons. See e.g., Sackett v. U.S. E.P.A., 622
F.3d 1139, 1147 (9th Cir. 2010) (dismissing case for lack of
subject matter jurisdiction); Kelly v. Fleetwood Enter., Inc.,
377 F.3d 1034, 1039-40 (9th Cir. 2004), as amended (dismissing case for failure to meet the amount in controversy);
Sapp v. Kimbrell, 623 F.3d 813, 828 (9th Cir. 2010) (dismissing case for failure to exhaust administrative remedies); Marley v. United States, 567 F.3d 1030, 1038 (9th Cir. 2009), as
amended (dismissing case for failure to file the action within
the applicable period of limitations). I doubt that anyone
would interpret those rulings as determinations that those
courts were not available to the Plaintiffs. Indeed, our precedent is to the contrary. See e.g., Hensley v. United States, 531
F.3d 1052, 1056-58 (9th Cir. 2008) (lamenting that the statute

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of limitations “makes it impossible to enforce what was otherwise a valid claim.”).
Unlike the majority, I am not persuaded that the reasoning
of In re Bridgestone/Firestone, Inc., 420 F.3d 702 (7th Cir.
2005) should be followed.
In the Bridgestone case, the Seventh Circuit remanded the
case to the district court after the Plaintiffs informed the
appellate court that the Mexican court declined to assume
jurisdiction. See id. at 706. As in this case, significant questions were raised regarding the actions of the plaintiffs in the
Mexican courts that contributed to the determination of a lack
of jurisdiction. See id. Notably, the Seventh Circuit did not
state that any precedent compelled a remand. Rather, the
Court remanded because it “believe[d] it prudent” to do so. Id.
I disagree that it is prudent to remand a case where the
remand essentially rewards a party who has sought remand on
a cloudy record before a tribunal outside this country. If we
follow the Seventh Circuit’s example, we will simply encourage litigants to manipulate the legal system to procure a more
favorable forum.
The only authority cited by the Seventh Circuit was Bank
of Credit and Commerce Int’l (OVERSEAS) Ltd. v. State Bank
of Pakistan, 273 F.3d 241, 246-47 (2d Cir. 2001). See id. at
706-07. However, that case presented a totally different set of
facts. In Bank of Credit and Commerce, the district court
relied on the Pakistani Banking Act to support its finding that
an alternative forum existed. See 273 F.3d at 246. After the
Second Circuit was made aware that the Banking Act had
been repealed, it remanded the forum non conveniens determination to the district court for further consideration. See id. at
246-47. The Second Circuit’s remand was predicated on the
occurrence of an objectively verifiable event, the repeal of a
statute. In contrast, the circumstances the Seventh Circuit considered and those we confront would require a trial to sort out

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the degree to which the plaintiffs manipulated the legal system in Mexico to precipitate a dismissal.
There is no dispute that the district court’s decision dismissing the case was correct. There is considerable dispute
regarding whether the dismissal in Mexico resulted from
plaintiffs’ shenanigans. I see no reason to disturb the district
court’s correct resolution of this case in view of the murky
basis for the requested remand, especially considering our
extremely narrow review of forum non conveniens determinations. See Loya v. Starwood Hotels & Resorts Worldwide,
Inc., 583 F.3d 656, 664 (9th Cir. 2009) (“[T]he forum non
conveniens determination is committed to the sound discretion of the trial court and may be reversed only when there
has been a clear abuse of discretion.”) (citation and parentheses omitted).
In the nearly six years since In re Bridgestone was decided,
no other court has followed its lead. We should not be the
first. Rather, we should affirm the district court’s decision that
no one challenges as incorrect. Because the majority opinion,
in my view, goes astray by following the Seventh Circuit’s
ruling, I respectfully dissent.