IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
ANDRES ARTEAGA, et al.,
BELL HELICOPTER TEXTRON, INC.,
and BRISTOW HELICOPTERS, INC.,
C.A. No. N12C-05-008 JRJ
Date Submitted: October 9, 2012
Date Decided: November 30, 2012
Upon Consideration of Defendants’ Joint Motion to Dismiss
on the Grounds of Forum Non Conveniens: DENIED
Richard A. Zappa, Esquire, and Timothy E. Lengkeek, Esquire, Young Conaway Stargatt Taylor,
LLP, 1000 West Street, 17th Floor, P.O. Box 391, Wilmington, DE 19899; John C.
Schwambach, Jr., Esquire (arguing attorney), Stevenson & Murray, 24 Greenway Plaza, Suite
750, Houston, TX 77046; Attorneys for the Plaintiffs.
Joseph J. Bellew, Esquire (arguing attorney), and Iian Rosenbert, Esquire, Cozen O’Connor,
1201 North Market Street, Suite 1400, Wilmington, DE 19801, Attorneys for Defendant Bell
Helicopter Textron, Inc.
David A. Dorey, Esquire, and Elaine D. Solomon, Esquire, Blank Rome, LLP, 1201 Market
Street, Suite 800, Wilmington, DE 19801, Attorneys for Defendant Bristow Helicopters, Inc.
In order to dismiss a complaint on the ground of forum non conveniens, the Court must
first find that an available alternative forum exists. Here, the potential alternative forum is
Mexico. 1 Based on the record before it, the Court does not find that Mexico is an available
alternative forum. Consequently, the motion to dismiss is DENIED.
II. FACTS AND PROCEDURAL HISTORY
In October, 2010, a helicopter crashed in Las Choapas, in the State of Veracruz, Mexico,
killing everyone on board: seven passengers and both pilots. 2 Representatives of the pilots and
five of the seven passengers (together, the “Plaintiffs”) have filed wrongful death actions against
Bell Helicopter Textron, Inc., and Bristow Helicopters, Inc., (together, the “Defendants”). 3
Plaintiffs allege that defects in the manufacturing process of components vital to keeping the
helicopter in flight caused the crash. 4
After briefing, oral argument, 5 and an amended
complaint, 6 Defendants filed a motion to dismiss on the grounds of forum non conveniens. 7
Application of the doctrine of forum non conveniens “presupposes at least two forums in
which [Defendants are] amenable to process; the doctrine furnishes criteria for choice between
Officially, the United Mexican States. See https://www.cia.gov/library/publications/the-worldfactbook/geos/mx.html (last visited 30 Nov. 2012); http://en.wikipedia.org/wiki/Mexico (last visited 30 Nov. 2012).
Opening Brief in Support of Defendant Bell Helicopter Textron, Inc.’s Motion to Dismiss the Complaint for
Forum Non Conveniens at 3, Arteaga v. Bell Helicopter Textron, Inc., N12C-05-008 JRJ (Del. Super. June 22, 2012)
Id. at 1-3.
Plaintiffs’ Consolidated Response and Brief in Opposition to Defendants’ Joint Motions to Dismiss on the Grounds
of Forum Non Conveniens at 3-4, Arteaga v. Bell Helicopter Textron, Inc., N12C-05-008 JRJ (Del. Super. July 23,
2012) [hereinafter Response] (internal citations omitted) (Three of the seven actions were filed on May 1, 2012.
Brief at 1. The remaining four were filed on May 7, 2012. Id. A stipulated motion consolidated the seven actions
on June 1, 2012, mostly for purposes of discovery and this motion to dismiss on the grounds of forum non
Heard on September 10, 2012.
Filed on September 25, 2012.
Motion of Defendant Bell Helicopter Textron, Inc. to Dismiss Plaintiffs’ First Amended Complaints for Forum
Non Conveniens, Arteaga v. Bell Helicopter Textron, Inc., N12C-05-008 JRJ (Del. Super. Oct. 9, 2012).
them.” 8 The fact that Defendants are willing to stipulate to Mexican jurisdiction because it is
(supposedly) more convenient is not sufficient, nor does it change the situation. 9 This is so
because “the determination of forum non conveniens must be made as of the time” Plaintiffs
bring their suit. 10 Not only must there be “a choice of jurisdictions in which to sue,” but that
choice must have been present when Plaintiffs initially filed their complaint. 11
balances a “clear preference in favor of a plaintiffs’ choice of forum” with a defendant’s
potential “overwhelming hardship and inconvenience” only in the presence of two or more
forums amenable to process when a plaintiff files. 12
According to Defendants, Mexico is not only an adequate and available alternative forum
in which to litigate, 13 it is also the most appropriate forum in which to do so. 14 For this reason,
Defendants offer (as a condition of dismissal) to “stipulate[e], if necessary, to a reasonable
tolling of the applicable Mexican statute of limitations,” and to “execute a written agreement
waiving the right to invoke any jurisdictional defenses on the basis of its domicile and
Harry David Zutz Ins., Inc. v. H.M.S. Assocs. Ltd., 360 A.2d 160, 165-66 (Del. Super. 1976), citing Life Assurance
Co. of Pa v. Associated Investors Int’l Corp., 312 A.2d 337, 340 (Del. Ch. 1973), citing Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 506-07 (1947), partially superseded by statute Pub. L. 87-845, § 9, 76A Stat. 699 (superseded only
with respect to the change of venue of federal cases within the federal system; Gilbert remains good law with
respect to federal claims in which the possible alternative forums are state or foreign courts. See, e.g., Mace v.
Mylan Pharm., Inc., 714 S.E.2d 223, 231 (W. Va. 2011) and Cowen v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir.
1983)); see also, Cervantes v. Bridgestone/Firestone N., Tire Co., LLC, 2009 WL 457918 at *1 (Del. Super. Jan.
29, 2009) and Pena v. Cooper Tire & Rubber Co., Inc., 2009 WL 847414 at *1 (Del. Super. Mar. 31, 2009).
See Pena, 2009 WL 847414 at *3.
Dietrich v. Texas Nat’l Petrol. Co., 193 A.2d 579, 589 (Del. Super. 1963).
Id. at 588-89; see also Hoffman v. Blaski, 363 U.S. 335 (1960).
Smith v. Freescale Semiconductor, Inc., 2010 WL 5140751 at *1 (Del. Super. Dec. 13, 2010) (The continued
analysis referred to requires the Court to weigh six factors: “(1) the relative ease of access to proof; (2) the
availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the
controversy is dependent upon the application of Delaware law which the courts of this State more properly should
decide than those of another jurisdiction; (5) the pendency or non-pendency of a similar action or actions in another
jurisdiction; and (6) all other practical problems that would make the trial of the case easy, expeditious and
inexpensive.” Brief at 5, citing Berger v. Intelident Solutions, Inc., 906 A.2d 134, 135-36 (Del. 2006) and Gen.
Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964)).
Defendant Bell Helicopter Textron, Inc.’s Reply Brief in Support of Motion to Dismiss the Complaints for Forum
Non Conveniens, Arteaga v. Bell Helicopter Textron, Inc., N12C-05-008 JRJ at 1-10 (Del. Super. Aug. 3, 2012)
Brief at 1-2 and implied throughout Defendants’ briefing.
specifically agree to jurisdiction in a Mexican forum.” 15
Whether Mexico can exercise
jurisdiction over Defendants is the first (and ultimately, sole) issue before the Court.
Under Mexican law, “competencia refers to the power of the Court to assert jurisdiction
over both the parties and the subject matter of the dispute before it.” 16 In Mexico, “a judge is
required to have jurisdiction over all parties, including the defendant, in order to hear or rule on a
case. . . . Jurisdiction over a defendant is based on the defendant’s domicile. The domicile of a
corporate defendant is the location where its business activities are managed.” 17 Defendants
assert they can waive their domicile and agree to be subject to Mexican jurisdiction when they
answer the complaint or by appearing in court. 18
Plaintiffs, on the other hand, argue that
competencia is decided before defendants are even notified that a suit has been filed against
them, making Defendants’ offer/claim procedurally impossible. 19
The parties’ experts on Mexican law are diametrically opposed on this issue.
Defendants’ expert, Alfonso J. Sepulveda Garcia (“Garcia”), argues that a defendant can “validly
submit to the jurisdiction of the courts of Mexico” when he or she “answers the complaint and
counterclaims against the plaintiff.” 20 Plaintiffs’ expert, Adalberto Chávez Bustos (“Bustos”) –
whose expertise this Court relied upon in Pena v. Cooper Tire & Rubber Co., Inc. 21 – counters,
Id. at 11.
Pena v. Cooper Tire & Rubber Co., Inc., 2009 WL 847414 at *1 n.13 (Del. Super. Mar. 31, 2009) (internal
citations omitted) (emphasis in original).
Response at 7, quoting Affidavit of Adalberto Chavez Bustos, at ¶8, attached as Exhibit 8.
Reply at 2.
Compendium of Exhibits cited in Plaintiffs’ Consolidated Response and Brief in Opposition to Defendants’ Joint
Motions to Dismiss on the Grounds of Forum Non Conveniens at ¶15 of Exhibit 8, Arteaga v. Bell Helicopter
Textron, Inc., N12C-05-008 JRJ (Del. Super. July 23, 2012) [hereinafter Compendium for Response]; Plaintiffs’
Consolidated Sur-Reply and Brief in Opposition to Defendants’ Joint Motions to Dismiss on the Grounds of Forum
Non Conveniens at page 2 of Exhibit 4, Arteaga v. Bell Helicopter Textron, Inc., N12C-05-008 JRJ (Del. Super.
Aug. 17, 2012) [hereinafter Sur-Reply].
Brief at pages 9 and 4-5, respectively, of Declaration of Alfonso J. Sepulveda Garcia.
2009 WL 847414.
arguing that “[t]he fact that the defendants submitted themselves to the jurisdiction of a Mexican
court after the accident has no effect.” 22 According to Bustos:
In Mexico, when a plaintiff submits a demand, the Court first determines if it has
jurisdiction to hear the case. This decision is made without discussing the matter
with the defendant. If the Court determines that it does have jurisdiction, the
defendant is served with notice and the legal action initiates. If the Court does not
have jurisdiction, it dismisses the case. The defendant is not allowed to submit
arguments to the Court regarding whether or not the Court has jurisdiction. 23
Plaintiffs also offer the sworn affidavit of Jorge Luis Guevera Coubert (“Judge Coubert”), a
Mexican judge. 24 Judge Coubert’s affidavit supports Bustos’ expert opinion. 25 Moreover, as
discussed below, Judge Coubert has, essentially, already heard and dismissed this case for lack
of competencia. 26
On November 15, 2011, Maria Alma Gutierrez Baeza, mother of decedent-plaintiff
Jonathan Gutierrez Baeza, sued Bell Helicopter Textron, Inc., in the Fourth Civil Court of the
Judicial District Sitting in Coatzacoalcos, State of Veracruz, for the wrongful death of her son
arising from the same crash at issue in the present case before this Court. 27 There, Judge
Coubert held that “this action is unquestionably of a personal nature, and thus should of necessity
be heard by the judge of defendant’s domicile.” 28 And, “[i]t should not be overlooked that the
domicile of Defendant . . . is in the United States of America.” 29 Thus, because, “the judge who
should hear personal proceedings is the judge of the defendant’s domicile,” Judge Coubert held
Compendium for Response at ¶14 of Exhibit 8.
Id. at ¶15.
Sur-Reply at Exhibit 4.
Id. at page 1 of Exhibit 4.
Compendium for Response at Exhibits 2 and 3.
Id. at Exhibit 3 (italics added).
that “it is evident that the lawsuit cannot be brought before this court, inasmuch as this is not the
defendant’s domicile.” 30 Judge Coubert dismissed the claim for lack of competencia. 31
Defendants argue that they were not given an opportunity to waive jurisdiction by
answering the complaint in that case 32 :
[T]he Mexican court dismissal does nothing to show that Mexico is not an
available forum for Plaintiffs’ suit. This is particularly important because Bell
was never (a) notified of Ms. Gutierrez’s intent to file suit in Mexico so as to
allow Bell to express its consent to the satisfaction of Mexican legal standards; or
(b) given the opportunity to appear in court to submit to or waive territorial
But, according to both Bustos and Judge Coubert, Defendants cannot answer a complaint until
competencia is decided. 34
This is so because the “court notifies the respondent” after a
determination of competencia. 35 “The petitioner does not do it.” 36 Thus, “[o]nly after the
determination that there is jurisdiction and the case is admitted can the respondent receive
official notification of the complaint and obtain a copy of the complaint from court personnel.”37
Defendants offer the expert opinion of Felipe Lopez-Contreras (“Justice Contreras”), a
former Justice of the Mexican Supreme Court. 38 Justice Contreras asserts that Judge Coubert’s
decision was unconstitutional. 39 According to Justice Contreras:
While it is true that, in practice, trial court judges in Mexico – especially in state
courts – frequently dismiss complaints sua sponte when they see that the
defendant is domiciled outside of the place of residence of the court, that practice
has been subject to constitutional scrutiny and found to violate the parties’ due
process rights. 40
Reply at 6-7.
Id. at 7.
Compendium for Response at ¶15 and Sur-Reply at page 2 of Exhibit 4, respectively.
Sur-Reply at page 2 of Exhibit 4.
Reply at Exhibit A.
Id. at page 5 of Exhibit A.
Defendants, however, argue that the cases cited in support of Justice Contreras’ opinion are
“non-binding decisions under Mexican law.” 41 They explain:
Because Mexico does not have the same common law history of stare decisis as
the United States, in order to establish binding precedent (“jurisprudencia
oligatoria”) in Mexico, the federal Supreme Court or circuit courts must hand
down five consecutive decisions upholding the same point of law. This is a basic
tenet of Mexican law, and Contreras cites only two court of appeals cases.42
This Court remains convinced that Mexico is not an available alternative forum.
Mexican courts will almost certainly dismiss this suit because Defendants are domiciled in the
United States of America. According to Delaware law, an available alternative forum must not
only exist, it must exist at the time a plaintiff files a complaint. 43 Mexican courts decide
competencia before defendants are even notified of the claim—before defendants have an
opportunity to answer or counterclaim and before defendants have an opportunity to waive
competencia. A defendant, then, cannot waive competencia by answering a complaint. Justice
Contreras’ opinion supports this, whether he agrees that it is proper or not. Defendants cannot
argue that Mexico is an available alternative forum when they admit that, in practice, Mexican
courts routinely dismiss exactly such cases as this one for lack of competencia. Moreover,
Defendants fail to offer an example of a case in which a similarly-situated defendant successfully
waived competencia by answering a complaint. 44 For these reasons, Defendants’ Motion to
Dismiss on the Grounds of Forum Non Conveniens is denied.
Sur-Reply at 5.
Id. at 5 (internal citations omitted).
See Dietrich v. Texas Nat’l Petrol. Co., 193 A.2d 579, 589 (Del. Super. 1963).
As in Pena, Defendants fail to submit to the Court any comparable cases in which (1) an American court
dismissed because they found that Mexico is an available alternative forum and (2) a Mexican court accepted. Pena
v. Cooper Tire & Rubber Co., Inc., 2009 WL 847414 at *2 (Del. Super. Mar. 31, 2009). The first criterion without
the latter is insufficient.
Because Defendants failed to show that Mexico is an available alternative forum in which
to litigate the consolidated wrongful death actions, the Motion to Dismiss on the Grounds of
Forum Non Conveniens is DENIED.
IT IS SO ORDERED.
Jan R. Jurden, Judge