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
consists of Justices Lloyd, Kelly, and Hightower.
RUSSELL LLOYD JUSTICE.
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 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.
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
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.
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 . . . ."
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].
prepared the basic jack-up rig design at its office in
allege that FGL failed to properly design the Troll
Solution, damaging them.
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.
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
Proceedings Seeking Dismissal for Forum Non
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.
Standard of Review and Applicable Law
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).
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.
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.
"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.
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)).
Balancing Section 71.051(b)'s factors
proceed with determining whether the greater weight of the
evidence requires us to overrule the trial court's
exercise of its discretion.
An alternate forum-Mexico's courts-exists in
which the action may be tried.
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).
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.)).
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.
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
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 ...