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In re Friede & Goldman, LLC

Court of Appeals of Texas, First District

May 9, 2019

IN RE FRIEDE & GOLDMAN, LLC F/K/A FGL BUYER, LLC D/B/A FRIEDE & GOLDMAN, LTD., Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          RUSSELL LLOYD JUSTICE.

         Relator Friede & Goldman, LLC f/k/a FGL Buyer, LLC d/b/a Friede & Goldman, Ltd. ("FGL") petitions for a writ of mandamus directing the trial court to grant its motion to dismiss the underlying lawsuit[1] for forum non conveniens. American Bureau of Shipping ("ABS"); ABS Group of Companies, Inc.; ABS Consulting Ltd.; and ABS Consulting, Inc. (collectively, the "ABS Entities"), also defendants below, joined in FGL's trial-court motion to dismiss and have joined FGL's petition before us. In a single issue, FGL and the ABS Entities argue that the trial court abused its discretion by denying their joint motion to dismiss because Texas is an inconvenient forum for the lawsuit. We deny the petition.

         Background

         The vessel Troll Solution, a "jack-up rig," was working on an offshore oil well in Mexico's territorial waters in the Bay of Campeche when it listed and partially dipped beneath the water's surface. The incident allegedly resulted in one worker's death and in personal injuries to many others. At the time of the incident, the vessel was contracted to Mexico's national oil company.

         Forty-four plaintiffs filed suit in Harris County district court based on the incident. Forty-one of the plaintiffs are workers who were aboard the Troll Solution during the incident. The remaining three plaintiffs are the deceased worker's estate's representative and his two children. Of the forty-one worker plaintiffs, one is a citizen and resident of Poland, another is a citizen and resident of India, and all the rest are citizens and residents of Mexico. The worker plaintiffs were working for Mexico-based employers at the time of the incident, and Mexico-based healthcare providers treated their injuries.

         Plaintiffs sued FGL and the ABS Entities, who allegedly have principal places of business and headquarters in Houston. Plaintiffs alleged that the Troll Solution "was defectively designed, in that it was unreasonably dangerous when sold and marketed by Defendants . . . ."

         The Troll Solution is the product of work performed around the globe. According to FGL's Vice President of Operations, a Chinese manufacturer had contracted with FGL's Dutch affiliate "to supply a license for a basic jack-up rig design for a jack-up rig that" the manufacturer "was building at its shipyard in Nantong, China." The Dutch affiliate subcontracted with FGL to supply the basic design. FGL's Vice President described the design process:

Upon information and belief, the rig [that the Chinese manufacturer] ultimately built using, in part, the basic jack-up rig design supplied by [FGL's Dutch affiliate], is now known as the TROLL SOLUTION, the jack-up rig at issue in the Lawsuit.
The basic jack-up rig design drawings provided by FGL to [its Dutch affiliate] and ultimately to [the manufacturer] were not, in and of themselves, sufficient to build a working, operating jack-up rig. Only after the detailed design phase could the jack-up rig be built and put into operation. FGL played no role in the detailed design phase for the jack-up rig at issue in the Lawsuit. Presumably, that work was carried out by [the manufacturer] at its shipyard in Nantong, China, or by other contractors hired by [the manufacturer].

         FGL prepared the basic jack-up rig design at its office in Houston.

         Plaintiffs allege that FGL failed to properly design the Troll Solution, damaging them.

         Plaintiffs also allege that the ABS Entities were "negligent in [their] inspection, review, and classification" of the Troll Solution before it entered into service. ABS's Chief Surveyor/Offshore averred that ABS was not involved with the operation or management of the Troll Solution from the date it began to be manufactured to the date of the incident. The evidentiary record reflects that the Troll Solution's Shipmanager, Operator, and Technical Manager, as well as its Registered Owner, are entities with addresses in Germany. FGL disputes this. It argues that the Shipmanager/Operator entity and the Registered Owner entity are instead Mexican companies. ABS's Chief Surveyor/Offshore also averred that "ABS has attended surveys and prepared reports at intervals from the date of the commencement of the Troll Solution's construction through the date of the incident," all of which were conducted outside of the U.S. by non-US ABS affiliates or branch offices.

         FGL and the ABS Entities jointly moved for dismissal of Plaintiffs' suit for forum non conveniens, arguing that the suit should be dismissed for refiling in a court in Mexico. The trial court denied the motion without explanation.

         Mandamus Proceedings Seeking Dismissal for Forum Non Conveniens

         In their sole issue, FGL and the ABS Entities seek a writ of mandamus directing the trial court to dismiss the suit for forum non conveniens.

         I. Standard of Review and Applicable Law

         Mandamus is appropriate to remedy an improper denial of a motion to dismiss for forum non conveniens. In re ENSCO Offshore Int'l Co., 311 S.W.3d 921, 923 (Tex. 2010) (orig. proceeding) (per curiam). We review a trial court's ruling on a motion to dismiss for forum non conveniens for an abuse of discretion. Id. A trial court has no discretion in determining what the law is or in applying the law to particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Aside from determining or applying the law though, "a reviewing court cannot substitute its discretion for that of the trial court"; therefore, "to find an abuse when factual matters are in dispute, the reviewing court must conclude that the facts and circumstances of the case extinguish any choice in the matter." In re Mahindra, USA Inc., 549 S.W.3d 541, 550 (Tex. 2018) (orig. proceeding).

         In actions for a wrongful death or personal injury, when a party moves for a forum non conveniens dismissal, Texas courts are to apply the factors listed in Civil Practice & Remedies Code § 71.051(b). Tex. Civ. Prac. & Rem. Code § 71.051(i). The "statute does not place the burden of proof on either party," so courts must resolve disputes under the statute's factors "based on the 'greater weight of the evidence.'" Mahindra, USA, 549 S.W.3d at 550 (quoting ENSCO Offshore Int'l, 311 S.W.3d at 927); accord In re Gen. Elec. Co., 271 S.W.3d 681, 687 (Tex. 2008) (orig. proceeding).

         The statute "requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas." Gen. Elec., 271 S.W.3d at 686. "The statute does not mandate that a movant prove each factor or that each factor must weigh in favor of dismissal to require a motion to be granted." Id. at 687. "To the extent evidence is necessary to support the positions of the parties," courts must weigh the factors based "on the weight of the evidence" and are "entitled to take into account the presence or absence of evidence as to some issue or position of a party." Id.

         When "all the factors do not conclusively favor the alternative forum[, ] . . . we cannot say that the trial court abused its discretion in denying" a motion to dismiss for forum non conveniens. Mahindra, USA, 549 S.W.3d at 550.

         A forum non conveniens analysis generally affords the plaintiff's choice of forum great deference, but that deference is "substantially less" when the plaintiff is a nonresident of the forum. In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 188 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding). The doctrine "recognizes that the plaintiff's choice must sometimes yield in the public interest, and in the interest of fundamental fairness. Dismissal on forum non conveniens grounds is appropriate when . . . the case itself has no significant connection to the forum state." Id. at 188-89 (internal quotation and citation omitted). "[I]t is fundamentally unfair to burden the people of Texas with the cost of providing courts to hear cases that have no significant connection with the State." Id. at 189. However, forum non conveniens decisions are subject to the trial court's discretion and will be set aside only for a clear abuse of discretion. Mahindra, USA, 549 S.W.3d at 545 (citing Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam)).

         II. Balancing Section 71.051(b)'s factors

         We proceed with determining whether the greater weight of the evidence requires us to overrule the trial court's exercise of its discretion.

         A. An alternate forum-Mexico's courts-exists in which the action may be tried.

         First, we must consider whether "an alternate forum exists in which the claim or action may be tried." Tex. Civ Prac & Rem Code § 71051(b)(1) An alternate forum exists when the defendants are amenable to process in that forum ENSCO Offshore Int'l, 311 S.W.3d at 924 This first factor is sometimes referred to as whether an alternate forum is "available" See, eg, In re Oceanografia, SA de CV, 494 S.W.3d 728, 732 (Tex 2016) (orig proceeding) (per curiam); In re Pirelli Tire, LLC, 247 S.W.3d 670, 677-78 (Tex 2007) (orig proceeding) (plurality op); Id. at 683 (Willett, J, concur ring); cf. In re Ford Motor Co., 591 F.3d 406, 412-13 (5th Cir. 2009).

         The Supreme Court of Texas has "held that the defendant had demonstrated the availability of an adequate forum [in Mexico] by stipulating that it would submit to personal jurisdiction in Mexico and would not assert a statute-of-limitations defense." Oceanografia, 494 S.W.3d at 732 (citing Pirelli Tire, 247 S.W.3d at 677-78 (plurality op.)).

         In their joint motion to dismiss in the trial court, FGL and the ABS Entities argued that all defendants in the action "have agreed to submit to jurisdiction in Mexico for purposes of this dispute" because employees of each of FGL, ABS, and ABS Group, respectively, averred in the trial court that if "Plaintiffs proceed with the same or substantially the same claims in an appropriate court in Mexico, [FGL, ABS, and ABS Group, respectively, ] agrees not to assert any objection to the Mexican court's personal jurisdiction or its equivalent over it for purposes of that proceeding only." FGL reurges this argument in its petition before us, which the ABS Entities have joined in and adopted by reference.

         FGL and the ABS Entities also provided the trial court, and rely on before us, an affidavit of an attorney licensed to practice in Mexico. The attorney averred that, "[b]ased on the facts asserted in the Plaintiffs' Original Complaint, Mexican law would provide a basis for jurisdiction, in a Mexican forum, over Defendants" ABS, ABS Group, and FGL, "as well as other potential parties including but not limited to" the Troll Solution's owner and operator; the vessel's managing company; and Mexico's national oil company, which was the entity to which the Troll Solution was contracted at the time of the incident.

         Plaintiffs respond in two ways. First, they argue that the affidavits are silent about whether FGL and the ABS Entities would assert limitations defenses in Mexico's courts. If they did assert them, that would arguably make the alternative Mexican forum unavailable. Second, relying on common-law forum non conveniens authority, Plaintiffs argue that not only the defendants but also "the entire case and all the parties" must "come within the jurisdiction" of the alternative forum. They argue that this suit fails that test because it is ...


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