Dominguez et al v. Gulf Coast Marine, et al

Filing 278

MEMORANDUM OPINION AND ORDER. Plaintiffs' 261 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. Signed by Judge Marcia A. Crone on 5/14/14. (ljw, )

UNITED STATES DISTRICT COURT

MARIA SANTOS LOPEZ DOMINGUEZ,
et al.,
Plaintiffs,
versus
GULF COAST MARINE & ASSOCIATES,
INC., et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 9:08-CV-200

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.

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

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.

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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

(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

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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. 013399-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,

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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. 1230749, 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

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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

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

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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

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[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.

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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

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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).

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(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

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.

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