Festor et al v. Wolf

Filing 18

ORDER DENYING 5 Defendant's Motion to Dismiss for Forum Non Conveniens. Signed by Judge Xavier Rodriguez. (rg)

In the United States District Court for the Western District of Texas
R o g e r Festor, Steve McKim, and L e t ic ia Cisneros, Plaintiffs v. M a r y Wolf Defendant § § § § § § § § §

C iv il No.: SA:09-CV-0054-XR

O rder O n this date, the Court considered Defendant Mary Wolf's Motion to D is m is s for Forum Non Conveniens (Docket Entry No. 5) and Plaintiffs' R e s p o n s e (Docket Entry No. 11) thereto. After careful consideration, the Court w ill deny the motion to dismiss on the basis of forum non conveniens. I . Background T h e Defendant, Mary Wolf, owned a fractional interest in an unfinished p r o p e r t y development, Mision La Serena, in Puerto Los Cabos, San Jose del C a b o , Baja California Sur, Mexico (the "Property"). The interest was for twelve c o n s e c u tiv e periods starting in week fifty-one of 2008.1 According to Wolf, a M is io n La Serena agent named Dan West contacted her and informed her that th e Plaintiffs, Roger Festor, Steve McKim, and Leticia Cisneros (the "Plaintiffs"),

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Docket Entry No. 4, Ex. A, ¶ 16.

w is h e d to purchase her interest in the Property.2 West forwarded a letter via fa cs im ile to Wolf that included an Interim Agreement that both Wolf and the P la in t if fs subsequently signed. Wolf then sent the Interim Agreement back to M is io n La Serena employees.3 O n January 7, 2008, the parties signed a Letter of Intent prepared by M is io n La Serena employees that set forth the terms for the assignment of Wolf's e n tir e fractional ownership interest to the Plaintiffs.4 After Wolf executed the L e tt e r of Intent, she returned it to Mision La Serena without contacting the P la in tiffs .5 The Plaintiffs claim that West, then acting as Wolf's agent, sent t h e m the Letter of Intent.6 Pursuant to the Letter of Intent, the Plaintiffs then w ir e d the $722,384.00 purchase price to Defendant's account.7 O v e r the next several months Wolf and Plaintiff Festor exchanged several p h o n e calls and documents regarding the transaction.8 In those phone calls Wolf a s s u r e d Festor that a deed would be forthcoming, and at Festor's request, Wolf m a ile d to Festor paperwork issued by Mision La Serena regarding the d e v e lo p m e n t .9 The Plaintiffs also contacted the developer, who requested that
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Id. ¶ 15. Docket Entry No. 4, Ex. A, ¶ 16. Id.; Docket Entry No. 17, Ex. A. Docket Entry No. 4, Ex. A, ¶ 16. Docket Entry No. 17, ¶ 3.1. Docket Entry No. 4, Ex. A, ¶ 17. Docket Entry No. 4, Ex. A, ¶¶ 19-20, 23; Docket Entry No. 11, Ex. A. Docket Entry No. 4, Ex. A, ¶ 20.

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t h e Plaintiffs provide them with an "executed agreement." 1 0 In November 2008, F e s t o r then sent a letter to Wolf that included a Transaction Agreement.1 1 S ig n e d by Wolf and the Plaintiffs, the Transaction Agreement is distinguishable fr o m the Letter of Intent only in that the former confirmed that Plaintiffs had w ir e d the money to Defendant's account and stated that both parties intended t o honor their remaining obligations under the Letter of Intent.1 2 After signing th e Transaction Agreement, Wolf returned it to Festor by using the selfa d d r e s s e d envelope that Festor sent with the letter and agreement.13 A ft e r the parties signed the Transaction Agreement, Wolf neither c o n v e y e d the deed to the fractional interest, nor returned the Plaintiffs' money. P la in t iffs also allege that around this time the Mision La Serena developer in fo r m e d Wolf of the resort's precarious financial situation.1 4 At present, the fr a c tio n a l interest in the Property is allegedly unusable because "the developer c lo s e d the Property and ceased operations."15 T h e Plaintiffs have filed this suit alleging breach of contract, c o m m o n law fraud, statutory fraud/fraud in a real estate transaction, restitution, u n ju s t enrichment, and violations under the Texas Deceptive Trade Practices

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Docket Entry No. 17, ¶ 3.3. Docket Entry No. 4, Ex. A, ¶ 21. Docket Entry No. 17, Ex. B. Docket Entry No. 4, Ex. A, ¶ 21. Docket Entry No. 17, ¶ 3.4. Id.

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A c t.1 6 Defendant Wolf moves to dismiss on the basis of forum non conveniens. I I . Analysis A . The Legal Standard for Forum Non Conveniens in an I n t e r n a t i o n a l Context A federal court sitting in diversity applies the federal law of forum non c o n v e n ie n s in deciding a motion to dismiss. DTEX, LLC v. BBVA Bancomer, S .A ., 508 F.3d 785, 793 (5th Cir. 2007). The "doctrine of forum non conveniens p r o c e e d [s ] from [the] premise [that] ... [i]n rare circumstances, federal courts can r e l in q u is h their jurisdiction in favor of another forum." Q u a c k e n b u s h v. Allstate Ins. Co., 517 U.S. 706, 722 (1996)). A forum non conveniens analysis in an international context has two steps. F ir s t, "the court must determine whether there exists an alternative forum." D T E X , 508 F.3d at 794. A foreign forum is available if "the entire case and all p a r t ie s can come within the jurisdiction of that forum." Id. at 796. (quoting B a u m g a r t v. Fairchild Aircraft Corp., 981 F.2d 824, 835 (1993)). The alternative fo r u m "is adequate when the parties will not be deprived of all remedies or t r e a te d unfairly, even though they may not enjoy the [sic] all the benefits of an A m e r i c a n court." DTEX, 508 F.3d at 796. "The substantive law of the foreign f o r u m is presumed to be adequate unless the plaintiff makes some showing to t h e contrary, or unless conditions in the foreign forum made known to the court, p l a in ly demonstrate that the plaintiff is highly unlikely to obtain basic justice Id. (quoting

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Docket Entry No. 17, ¶¶ 4.1-4.20.

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t h e r e ." Id. (quoting Tjontveit v. Den Norske Bank ASA, 997 F.Supp. 799, 805 (S .D .T e x . 1998)). Second, if an alternative forum is both available and adequate, a court m u s t determine which forum is best suited to the litigation. DTEX, 508 F.3d at 7 9 4 . In performing this second step, a court must consider whether "certain p r iv a t e and public interest factors weigh in favor of dismissal." Id. Private in te r e s t factors include: (i) the relative ease of access to sources of proof; (ii) availability of c o m p u ls o r y process for attendance of unwilling, and the cost of obtaining a t te n d a n c e of willing, witnesses; (iii) possibility of view of [the] premises, if view would be appropriate to the action; (iv) all other practical problems th a t make trial of a case easy, expeditious and inexpensive . . . e n f o r c e a b ilit y of judgment[; and whether] the plaintiff [has sought to] " v e x , " "harass," or "oppress" the defendant. Id . (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Should the private interest factors weigh against dismissal, a court will c o n s id e r the public interest factors. Gonzalez v. Chrysler Corp., 301 F.3d 377 (5 th Cir. 2002) (citing Baumgart, 981 F.2d at 837). The "public interest" factors in c lu d e : (i) the administrative difficulties flowing from court congestion; (ii) the lo c a l interest in having localized controversies resolved at home; (iii) the in te r e s t in having a [sic] the trial of a diversity case in a forum that is f a m ilia r with the law that must govern the action; (iv) the avoidance of u n n e c e s s a r y problems in conflicts of law, or in application of foreign law; a n d (v) the unfairness of burdening citizens in an unrelated forum with ju r y duty. DTEX, 508 F.3d at 794. If these factors weigh in the movant's favor, the court m a y dismiss the case. Id.

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T h e court must bear in mind that "the ultimate inquiry is [to locate the t r ia l] where [it] will best serve the convenience of the parties and the interests o f justice." Id. Defendants bear the burden of proof on all elements of the forum n o n conveniens analysis. Id. (citing In re Ford Motor Co., Bridgestone/Firestone N o r th American Tire, 344 F.3d 648, 652 (7th Cir. 2003)). The Supreme Court h a s held that a moving defendant need not submit overly detailed affidavits to c a r r y its burden, but it "must provide enough information to enable the district c o u r t to balance the parties['] interests." Camejo v. Ocean Drilling &

E x p l o r a t io n , 838 F.2d 1374, 1379-80 (5th Cir. 1988) (citing Piper Aircraft v. R e y n o , 454 U.S.235, 258 (1981)).1 7 Ordinarily a strong favorable presumption is applied to the plaintiff's choice of forum. DTEX, 508 F.3d at 795. "[U]nless t h e balance is strongly in favor of the defendant, the plaintiff's choice of forum s h o u ld rarely be disturbed." Id. B . The Adequacy and Availability of the Alternative Forum B o th parties submitted affidavits from Mexican legal experts addressing t h e adequacy and availability of the forum. Wolf's legal expert, Carlos

H e r n a n d e z - O je d a , argued that Mexican courts would be available to adjudicate t h e Plaintiffs' claims because the real property identified in the contract, Mision L a Serena, is located in Mexico.1 8 Under Mexico's Foreign Investment Law,

The Supreme Court has not explained how much detail by a moving defendant is required. The necessary detail will likely depend upon the particular facts and issues of each case. Camejo, 838 F.2d at 1380 n. 17.
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Docket Entry No. 5, Ex. A, ¶¶ 7, 9.

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fo r e ig n nationals can only invest in properties like Mision La Serena by using a special trust-like mechanism called fideicomiso.1 9 Hernandez-Ojeda added that M e x ic a n courts were an adequate forum because they allowed non-resident A m e r ic a n s to litigate contract breach claims, civil fraud, and restitution "in a p p r o p r ia te circumstances."2 0 B y contrast, the Plaintiffs' expert, Rene Cacheaux, argued that Mexican c o u r t s were not available fora for the adjudication of time-sharing rights because o f their unique nature as fractional property rights, which are not recognized u n d e r Mexican law.2 1 Such rights would be treated as personal or contractual r ig h t s instead of as real property rights.2 2 Questioning Mexico's personal

ju r is d ic t io n over the parties, Cacheaux added that Mexican law contained no c o n c e p t similar or equivalent to "minimum contacts." 2 3 He also stated that M e x ic a n courts were inadequate because Mexican law failed to recognize c o m m o n -la w fraud, fraud in a real estate transaction in a "civil litigation

Id. ¶ 8. A fideicomiso is a property-ownership arrangement complying with Article 27 of the Mexican Constitution under which a Mexican Bank Trust obtains legal title to a piece of real property within a prohibited zone, and a foreigner, as the beneficiary of the trust, enjoys the beneficial interest in the property, including all the usual rights of ownership. Gale v. Carnite, 559 F.3d 359, 361n. 2 (5th Cir. 2009).
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Id. ¶ 11. Docket Entry No. 11, Ex. D, ¶ 2.10.

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Id. Cacheaux also questions the opinion of Wolf's legal expert that the present cause of action was directly related to the property itself and therefore implicated fideicomiso. He argues that the subject matter of the litigation is not the trust itself, but the parties' transaction that assigned the trust. Id. ¶ 5.5.
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Id. ¶¶ 4.1, 4.3.

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c o n te x t," and the Texas Deceptive Trade Practices Act.2 4 Remedies such as p u n it iv e damages, considered against Mexican public policy, are also not r e c o g n iz e d by the Mexican legal system.25 T h e affidavits, motion, and motion response demonstrate that Mexico's a v a ila b i lit y as a legal forum remains in question. Personal jurisdiction also r e m a in s unsettled in Baja California Sur since neither party is a resident or d o m ic ilia r y of Mexico or subject to the jurisdiction thereof. Quintero v. Klaveness S h ip Lines, 914 F.2d 717 (5th Cir. 1990). Since Defendant's assertion that M e x ic o is an available forum remains in question, Defendant has failed to carry h e r burden of persuasion. See Camejo, 838 F.2d at 1380. In contrast to availability, Mexico appears to be an adequate forum. W o lf's expert points out that Mexico recognizes breach of contract, civil fraud, a n d restitution as causes of action. Cacheaux's attempt to distinguish civil fraud f r o m common law fraud and fraud in a real estate transaction fails to d e m o n s tr a te that the Plaintiffs are left without a remedy or access to basic ju s tic e . DTEX, 508 F.3d at 796. Thus, although the remedies might be

s o m e w h a t different, the Plaintiffs are not left without a remedy altogether.26
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Id. ¶ 6.1. Id.

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Mexico's rejection of punitive damages as against public policy and lack of an equivalent to the Texas Deceptive Trade Practices Act does not necessarily result in a finding that Baja California Sur is an inadequate forum. Indeed, adequacy does not require that the alternative forum provide the same relief as an American court. DTEX, 508 F.3d at 796. In Gonzalez, 301 F.3d at 380-82, for example, "the plaintiff argued that the facts that Mexican law did not recognize strict liability and capped damages at approximately $2,500 made the Mexican courts inadequate." DTEX, 508 F.3d at 797. The court found that "Mexico, as a sovereign nation, has made a deliberate [policy] choice in providing a specific remedy for this

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A s noted, the availability of Mexico as an adequate forum remains open t o question. However, the Court will presume that Mexico is an available and a d e q u a te forum and consider the remaining factors. C. The Private Interest Factors 1 . Relative Ease of Access to Sources of Proof W o lf asserts that the private interest factors would favor dismissal since M e x ic o would be a better forum given that "all of the plaintiffs' claims rest upon t h e factual and legal assertion that the defendant did not do what she promised to do [in the contract] and that [Mision La Serena] had ceased operations."2 7 W o lf asserts that her own actions or omissions related to the Property, Mision L a Serena's property developer, and documented evidence related to the P r o p e r t y , would be more accessible in Mexico.2 8 The Plaintiffs, on the other h a n d , argue that their "claims arise out of conduct that occurred in the United S ta te s ."2 9 B a s e d on the parties' affidavits, Defendant's motion, Plaintiffs' response to the motion, and Defendant's Rule 26(a) Disclosures (Docket Entry No. 15), a c c e s s to proof weighs in favor of denying a dismissal for forum non conveniens. T h e center of the dispute lies in the actions or omissions by Wolf in regards to
tort cause of action. It would be inappropriate-even patronizing-for us to denounce this legitimate policy choice . . . ." Id. (citation omitted). Moreover, other courts have held that a foreign forum's lack of an equivalent to the Texas Deceptive Trade Practices Act does not make that forum inadequate. DTEX, 508 F.3d at 797.
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Docket Entry No. 5, ¶ 8a. Id. Docket Entry No. 11, ¶ 6.2.

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h e r obligations under the Letter of Intent and the Transaction Agreement. D e fe n d a n t also submits the Fractional Ownership Rights Agreement as a d o c u m e n t in support of her claims.3 0 In all, these documents are readily

a c c e s sib le within the United States and thus weigh against denying the motion t o dismiss on the basis of forum non conveniens.31 A d d it io n a lly , Defendant's Rule 26(a) disclosures of persons with d is c o v e r a b le information include only the parties to the Letter of Intent and T ra n sa ctio n Agreement, and the Defendant's husband, Douglas Wolf.3 2 A d d it io n a l people who might have discoverable information but who were not in c lu d e d under the Rule 26(a) disclosures include Mision La Serena Sales R e p r e s e n t a t iv e Dan West and the property developer. Wolf states in her

a f fid a v i t that West contacted her about the purchasers' interest in her p r o p e r t y .3 3 Wolf also provides proof of this correspondence with documentation i n the motion.3 4 The documentation, however, fails to indicate if West played a n y role beyond what is demonstrated by the proof already placed before this C o u r t .3 5 The property developer's representations to the Defendant regarding t h e financial state of the property may also be an important piece of evidence.

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Docket Entry No. 15. See Docket Entry No.17, Ex. A-B. Docket Entry No. 15. Docket Entry No. 4, ¶ 15. Docket Entry No. 4, Ex. A. See, e.g., Docket Entry No. 11, Ex. A-C; and Docket Entry No. 17, Ex. A-B; Docket Entry No. 4.

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Y e t , based on the documentation proffered by both parties and the absence o f West and the property developer from the Defendant's Rule 26(a) disclosures, t h is Court can reasonably conclude that neither West nor the developer will be d i s p o s it iv e to a determination of the ease of access to proof and therefore do not w e ig h t this factor so as to warrant dismissal. Moreover, the signatories to the tr a n s a c tio n are within the United States, and the Defendant has cited no specific d o c u m e n t s that would not be available for discovery within the United States. T h u s , the relative ease of access to evidence within the United States slightly fa v o r s denying the motion to dismiss on the basis of forum non conveniens. 2. Compulsory Process for Attendance and Cost of Attendance T h e availability of compulsory process for attendance of unwilling w itn e s s e s weighs against dismissal. As noted above, Wolf has not specifically id e n t if ie d any parties in Mexico that would fall outside this court's ability to s u b je c t them to process. Moreover, the parties to this litigation reside in the U n it e d States. Still, Wolf asserts that requiring willing witnesses from Mexico t o participate in a trial in San Antonio would be burdensome.3 6 Yet, the

D e fe n d a n t fails to identify any key party or nonparty witnesses that would be s o burdened. Given that Wolf argues that Mexico would be a better forum to a d ju d ic a te this matter, the necessary detail favoring this motion should include s u c h witnesses in Mexico in order for the Defendant to carry her burden in a fo r u m non conveniens analysis. See Camejo, 838 F.2d at 1380 n. 17. Moreover,

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Docket Entry No. 5, ¶ 8a.

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t h e parties to this action are already so geographically separated, the costs of a tt e n d a n c e of willing non-parties and unidentified witnesses is unlikely to be m o r e burdensome in an American forum than in a Mexican forum. See BBC C h a r te r in g & Logistic GMBH & Co. K.G. v. Siemens Wind Power A/S, 546 F .S u p p .2 d 437, 447 (S.D. Tex. 2008) (citing DTEX, 508 F.3d at 800). Therefore, t h e availability of compulsory process for the attendance of unwilling witnesses fa v o r s denying the motion to dismiss for forum non conveniens. 3 . View of the Premises A view of the premises would undoubtedly be unavailable from an A m e r ic a n forum. In determining whether Mision La Serena has indeed ceased o p e r a t io n s , a view of the premises would be helpful. Yet, given that the subject m a t te r of the dispute between the parties centers almost entirely on actions or o m is s io n s taken by the seller, and the majority, if not all, of this dispute could b e resolved without determining the state of operations of Mision La Serena, a v ie w of the premises weighs only slightly in favor of dismissal. 4. Other Practical Problems O t h e r practical problems such as enforceability of the judgment neither w e ig h in favor of or against dismissal for forum non conveniens. The Defendant a r g u e s that "[a]bsent some material defect in the foreign proceedings, such as la c k of jurisdiction over the person or the subject matter, the judgment from a M e x ic a n court would be enforceable in Virginia under that state's version of the

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U n ifo r m Foreign Money Judgment Recognition Act." 3 7 However, a Texas or V ir g in ia judgment would be equally enforceable in Virginia, the state of Wolf's r e s id e n c e . Wolf has not shown that any part of a judgment issued by a United S t a te s court on Plaintiffs' claims would need to be enforced in Mexico, and P la in t iffs are not seeking specific performance. Thus, this private factor neither fa v o r s nor opposes dismissal. Since the private factors do not favor dismissal on the basis of forum non c o n v e n ie n s , we proceed to weigh the public factors. D. The Public Interest Factors 1 . Administrative Difficulties N e it h e r side cites administrative difficulties such as court congestion as a relevant factor affecting the public interest. This factor is therefore neutral. 2 . The Interests of the Local Forum T h e second public interest factor, the local interest in having localized c o n t r o v e r s ie s resolved at home, also weighs against dismissal. Wolf's expert a r g u e s that since "the subject of the dispute involves investors from several ju r is d ic tio n s , `there is a local interest in having localized controversies decided a t home.'" 3 8 Yet resolving this dispute does not necessarily involve determining t h e state of the real property that formed the basis of the fractional property in t e r e s t in Mision La Serena. Instead, the affidavits submitted by both parties

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Docket Entry No. 5, ¶ 8b. Docket Entry No. 5, Ex. A, ¶ 9a (quoting Gulf Oil, 330 U.S. at 509).

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s u g g e s t that the dispute centers on actions or omissions in the assignment of the f r a c t io n a l interest in the Letter of Intent and the Transaction Agreement. A l t h o u g h Mision La Serena parties were involved as interlocutors in the e x e c u t io n of the Letter of Intent, both the Letter of Intent and the Transaction A g r e e m e n t were signed in the United States by American citizens domiciled in t h e United States. Likewise, the breach of contract and tort actions accrued as a result of actions or omissions that occurred in the United States between A m e r i c a n citizens who were parties to agreements that were executed in the U n it e d States. Thus, this forum has a greater interest in deciding allegations m a d e by Texas citizens against a Virginia citizen than a Mexican forum. 3. The Governing Law A l t h o u g h Mexican fideicomiso law may be relevant to the nature of the p r o p e r ty that was the subject of the contract, the facts offered by the parties in t h e ir affidavits suggest that fideicomiso law is unlikely to apply to the u n d e r l y i n g claims in this case because the dispositive elements of this dispute a r e the actions or omissions related to the Letter of Intent and Transaction A g r e e m e n t. DTEX, 508 F.3d at 802. In a diversity action, this Court applies Texas choice of law rules. See C a t o n v. Leach Corp., 896 F.2d 939, 942 (5th Cir. 1990). In choosing the

g o v e r n in g law, Texas follows the "most significant relationship test" set out in t h e RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 and § 145. Torrington Co. v . Stutzman, 46 S.W.3d 829, 848 (Tex. 2000); Gutierrez v. Collins, 583 S.W.2d

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3 1 2 , 318 (Tex.1979). Section 6 of the Restatement sets out the following general fa c to r s relevant to the choice of law: (a) the needs of the interstate and international systems, (b) the relevant p o lic ie s of the forum, (c) the relevant policies of other interested states and t h e relative interests of those states in the determination of the particular is s u e , (d) the protection of justified expectations, (e) the basic policies u n d e r l y i n g the particular field of law, (f) certainty, predictability and u n ifo r m it y of result, and (g) ease in the determination and application of t h e law to be applied. T o r r in g t o n Co., 46 S.W.3d at 848 (citing RESTATEMENT (SECOND) OF CONFLICT OF L AWS § 6(2) (1971)). T h e s e factors are applied through Restatement provisions that are more s p e c ific to the type of dispute involved. In a contract action, for example, where t h e parties did not designate a choice of law, Texas applies the Restatement (S e c o n d ) of Conflict of Laws § 188. Sonat Exploration Co. v. Cudd Pressure C o n tr o l, Inc., 271 S.W.3d 228, 233 (Tex. 2008). Section 188 provides that "an is s u e in contract [is] determined by the local law of the state which, with respect t o that issue, has the most significant relationship to the transaction and the p a r t ie s . " Id. In making that decision, the court takes five contacts into account: (a ) the place of contracting, (b) the place of negotiation, (c) the place of p e r fo r m a n c e , (d) the location of the subject matter, and (e) the domicile, place of in c o r p o r a tio n , and place of business of the parties. Id. Similar to a contract action, the Restatement also designates relevant c o n ta ct s for consideration in a tort action including: (a) the place where the in ju r y occurred; (b) the place where the conduct causing the injury occurred; (c)

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t h e domicil[e], residence, nationality, place of incorporation and place of business o f the parties; and (d) the place where the relationship, if any, between the p a r tie s is centered. Torrington, 46 S.W.3d at 848 (citing RESTATEMENT (SECOND)
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CONFLICT OF LAWS § 145(2) (1971)). The analysis "should not turn on the

n u m b e r of contacts, but more importantly on the qualitative nature of those c o n t a c t s ." Gutierrez, 583 S.W.2d at 319. After arguing that the subject matter of the dispute would be a personal o r contractual right, the Plaintiffs' expert contends that Mexican courts would n o t have jurisdiction over a "United States agreement, negotiated and executed b e t w e e n United States citizens residing in [the] United States." 3 9 Venue for such p e r s o n a l or contractual rights would be governed by Article 156, section IV in B a ja California Sur's Code of Civil Procedure instead, which states that venue is proper in a cause of action over personal or contractual rights in "the court of th e domicile of the defendant." 40 In this case, the United States has the most significant relationship b e c a u s e of the high qualitative nature of American contacts to this case. Based o n the Plaintiffs' First Amended Complaint, Defendant's motion and affidavits, a n d the Plaintiffs' response to the motion and affidavits, it appears that the a lle g e d breach of contract and tortious acts occurred within the United States b e t w e e n American citizens domiciled in the United States. There is no

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Docket Entry No. 11, Ex. D, ¶ 1.3. Docket Entry No. 11, Ex. D, ¶ 1.3.

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in d i c a t io n that Mexican law should govern the claims at issue. Thus, under T e x a s 's most significant relationship test, American law is likely to govern the m e r it s issues, and this factor weighs against dismissal on the basis of forum non c o n v e n ie n s . 4 . Application of Foreign Law A lt h o u g h American law is likely to govern the merits, it appears that M e x ic a n law will be relevant to collateral issues such as the nature of the p r o p e r ty that is the subject of the contract. An American forum would

n everth e le s s be capable of handling the difficulties posed by Mexican fideicomiso la w should the court need to do so. Indeed, American forums have competently a d ju d i c a t e d matters involving Mexican fideicomiso property interests on other o c c a s io n s . See Gale v. Carnrite, 559 F.3d 359 (5th Cir. 2009) (holding that a s e l le r did not breach its contract by averring that there would be no tax liability in c u r r e d by the sale of a Baja California Sur condominium owned pursuant to fid e ic o m is o law); Brady v. Brown, 51 F.3d 810 (9th Cir. 1995) (concluding that a district court's ordering parties to establish a fideicomiso so that the parties c o u ld transfer property interests was not a violation of Mexican law). Thus, the d iffic u ltie s in application of foreign law does not weigh in favor of dismissal. 5 . Burden of Jury Duty T h e final factor, the unfairness of burdening citizens in an unrelated fo r u m with jury duty weighs against dismissal. Imposing jury duty on Baja C a lifo r n ia Sur's citizens to adjudicate a contract or tort action between American

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c itiz e n s domiciled in the United States would be unfair given that the only r e la tio n s h ip Baja California Sur's citizens would have to the action is that the r ig h t s assigned by the American parties were to a beneficial interest in real p r o p e r ty that is the situs of Mision La Serena. III. Conclusion The analysis above demonstrates that the Defendant has failed to carry th e burden of demonstrating that dismissal for forum non conveniens is w a r r a n t e d . Therefore, Defendant's motion to dismiss on the basis of forum non c o n v e n ie n s (docket no. 5) is DENIED. It is so ORDERED. S I G N E D this 11th day of August, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

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