Petition for a Writ of Mandamus to the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 00-9373-C-B/S, MDL No. 1373 -- Sarah Evans Barker, Judge.
Before Kanne, Diane P. Wood, and Evans, Circuit
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge
SUBMITTED OCTOBER 30, 2002
OPINION SEPTEMBER 12, 2003
Several hundred products liability lawsuits filed in federal court against Ford Motor Company and Bridgestone/Firestone North American Tire, LLC (Firestone) concerning the allegedly defective designs of certain models of Firestone tires and the Ford Explorer are currently consolidated for pretrial proceedings in the Southern District of Indiana.*fn2 This matter addresses 121 of those cases. Each case was filed initially in a district court sitting within Alabama, California, Florida, or Mississippi by Venezuelan or Colombian nationals (or their representatives). These plaintiffs claim that they were injured or killed in their home countries in accidents caused by the allegedly defective products.
Ford and Firestone moved to dismiss the cases under the doctrine of forum non conveniens, asserting that trial in the courts of Venezuela and Colombia would be more convenient. The district court denied the motions after it concluded, among other things, that the courts of Venezuela were not an available alternative forum, and that even though the Colombian court system provides an adequate alternative forum, on balance, with respect to both Venezuela and Colombia, the private and public interest favored retention of the lawsuits in the United States. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F. Supp. 2d 1125 (S.D. Ind. 2002). Ford and Firestone asked the district court to certify its order for interlocutory appeal under 28 U.S.C. § 1292(b), but the court denied this motion as well, concluding that Ford and Firestone had not met the requirements for certification. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 212 F. Supp. 2d 903 (S.D. Ind. 2002). Ford and Firestone then petitioned this court under 28 U.S.C. § 1651(a) for a writ of mandamus directing the district judge either to grant their motions to dismiss or to certify her order denying their motions to dismiss for interlocutory appeal. In an order dated November 13, 2002, we denied that petition for the reasons set forth in this opinion.
Mandamus is a drastic remedy traditionally used to confine a lower court to the lawful exercise of its jurisdiction or to compel it to exercise its authority when it has a duty to do so. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) ( per curiam ). A writ of mandamus may issue only if the challenged order is effectively unreviewable at the end of the case, it inflicts irreparable harm, and it "so far exceed[s] the proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous." In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir. 1995). By their nature, forum non conveniens decisions are ill-suited to this remedy. They are instead committed to the sound discretion of the district court, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981), and so a litigant's right to a particular result will rarely be "clear and indisputable." Allied Chemical, 449 U.S. at 36. Nevertheless, even in the context of discretionary decisions, mandamus remains an appropriate remedy if the trial judge commits a "clear abuse of discretion," see Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953), or "patent[ ] error[ ]." Rhone-Poulenc Rorer, 51 F.3d at 1295.
Because mandamus is not a substitute for an appeal, the terms "clear abuse of discretion" or "patent error" are not synonymous with the type of ordinary error that would justify reversal in a direct appeal. See Will v. United States, 389 U.S. 90, 104 (1967) (quoting Bankers Life, 346 U.S. at 382, 383 (mandamus is not available for all reversible errors; the function of the writ is not to control the decision of the trial court, but rather to confine the trial court "to the sphere of its discretionary power")); In re Lewis, 212 F.3d 980, 982 (7th Cir. 2000); Eisenberg v. United States District Court, 910 F.2d 374, 375 (7th Cir. 1990); In re Ralston Purina Co., 726 F.2d 1002, 1004-05 (4th Cir. 1984). The petitioner must demonstrate that the error is so serious that it amounts to an abuse of the trial judge's authority. In re Balsimo, 68 F.3d 185, 186-87 (7th Cir. 1995); Rhone-Poulenc Rorer, 51 F.3d at 1295; In re Moore, 776 F.2d 136, 139 (7th Cir. 1985); In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995).
We find no such abuse of authority in the district court's decision here. The non-statutory doctrine of forum non conveniens permits a case to be dismissed if trial in the plaintiff's chosen forum would be oppressive and vexatious to the defendant, out of all proportion to the plaintiff's convenience, and if it is also true that an alternative foreign forum exists. Piper Aircraft, 454 U.S. at 241. In determining whether to dismiss, courts consider whether an adequate alternative forum is available to hear the case, and whether various private and public interest factors clearly indicate that the suggested alternative forum is superior. Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802-03 (7th Cir. 1997). The private interest factors considered are "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Kamel, 108 F.3d at 803. The public interest factors include "the administrative difficulties stemming from court congestion; the local interest in having localized disputes decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of laws or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty." Kamel, 108 F.3d at 803 (citing Piper Aircraft, 454 U.S. at 241 n.6). The defendant carries the burden of persuading the district court that a lawsuit should be dismissed on forum non conveniens grounds. Ford v. Brown, 319 F.3d 1302, 1311 (11th Cir. 2003); Aguinda v. Texaco, Inc., 303 F.3d 470, 476 (2d Cir. 2002); Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2d Cir. 2001) ( en banc ).
The first question the court resolved was whether the courts of Venezuela provide an adequate alternative forum for that group of plaintiffs. Resolving a conflict in expert testimony, the judge decided that they did not. Whether her ultimate decision to credit the testimony of the plaintiffs' expert, Tatiana B. deMaekelt, who opined that the Venezuelan courts would lack subject matter jurisdiction over these cases, was correct is not the issue. As the Supreme Court held in Von Cauwenberghe v. Biard, 486 U.S. 517 (1988), orders denying motions to dismiss for forum non conveniens are normally reviewed only after final judgment in a case. Our present task in deciding whether to issue a writ of mandamus is only to determine whether the trial judge usurped her authority. Here, where the court took the question before it seriously, gave careful consideration to the relevant factors that bear on a forum non conveniens motion, and came to a reasoned conclusion, there is no sign of such abuse.
Although the district court could have rested its decision with respect to the Venezuelan cases solely on its determination of the availability of that country's courts, it did not do so. Instead, it took the precaution of assuming for the sake of argument that Venezuela's courts were available and it turned to the second part of the inquiry: the balancing of public and private interests. This step was necessary in any event for the Colombian plaintiffs, because everyone agreed that the Colombian courts were available. On balance, the court concluded, all of the cases should remain in the United States.
Once again, Ford and Firestone have confused the kinds of arguments they might make after a final judgment has been entered and those that are relevant to considering a petition for a writ of mandamus. They urge, for example, that the district court gave too much weight to the foreign plaintiffs' choice of forum. The district court was aware that this was a significant issue in the case, given the interplay between two treaties and the forum non conveniens doctrine. The treaties (the Treaty of Peace, Friendship, Navigation, and Commerce, June 20, 1836, U.S.-Venez., art. XIII, 8 Stat. 466; and the Treaty of Peace, Amity, Navigation, and Commerce, Dec. 12, 1846, U.S.-Colom. (then Republic of New Granada), art. XIII, 9 Stat. 881) are essentially identical. Both provide that the courts of the signatory nations shall be "open and free" to the other's citizens "on the same terms which are usual and customary with the... citizens of the country in which they may be...." In short, citizens of treaty countries are entitled to treatment equivalent to that given to U.S. citizens when they appear in courts in the United States.
The district court acknowledged that, while there is usually a strong presumption in favor of the plaintiff's choice of forum, the strength of the presumption is tempered when the plaintiff is a foreign national suing in the United States. See Piper Aircraft, 454 U.S. at 255. It chose to follow the approach of the Second Circuit in Iragorri v. United Technologies Corp., 274 F.3d 65, 69 n.2 (2d Cir. 2001) ( en banc ), under which expatriate U.S. nationals and treaty nationals residing in their home countries are entitled to the same degree of deference on their choice of forum as U.S. plaintiffs enjoy, but with the consideration that suing in the United States while residing in a foreign country is less likely to be convenient. In ...