-BGS Compression Leasing Services, Inc. v. Rocha Trucking & Parking, Inc. et al, No. 3:2010cv01939 - Document 14 (S.D. Cal. 2012)
Court Description: ORDER denying 7 Motion to Dismiss Under Doctrine of Forum Non Conveniens. No later than five calendar days from the date this order is issued, the parties are to meet and confer, and contact the chambers of Magistrate Judge Bernard Skomal to arrange for an early neutral evaluation and a case management conference to set dates, both of which are to be held no later than March 30, 2012. Signed by Judge Larry Alan Burns on 3/1/12. (kaj)
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-BGS Compression Leasing Services, Inc. v. Rocha Trucking & Parking, Inc. et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COMPRESSION LEASING SERVICES, INC., CASE NO. 10cv1939-LAB (BGS) 12 ORDER DENYING MOTION TO DISMISS UNDER DOCTRINE OF FORUM NON CONVENIENS Plaintiff, 13 vs. 14 15 16 ROCHA TRUCKING & PARKING, INC., et al., Defendants. 17 18 This case arises out of a road accident that occurred in Mexico. Plaintiff Compression 19 Leasing Services, Inc. (“Compression”) hired Defendant Rocha Trucking and Parking 20 (“Rocha”), a California company, to transport a compressor from Calexico, California to Valle 21 de Las Palmas, Mexico. The compressor was loaded onto the truck in California and driven 22 into Mexico without incident. While Defendant Marco Antonio Carmona Ortiz was driving it 23 south of Tecate, Mexico when he lost control of his truck, causing the compressor to fall off. 24 The complaint alleges the compressor was not adequately secured when it was loaded, and 25 that Carmona’s negligent driving also caused the accident which damaged the compressor. 26 Although not named as a party, St. Paul Fire & Marine Insurance is apparently a party in 27 interest. St. Paul paid Compression for most of the cost of the compressor, and 28 Compression is seeking to recover that amount as well as $25,000 of uninsured loss due to -1- 10cv1939 Dockets.Justia.com 1 its deductible. Carmona’s employer Transportes Internacionales Celjor S.A. de C.V. (“TIC”), 2 a Mexican company, is also named as a Defendant but neither TIC nor Carmona have 3 answered or appeared. The complaint identifies diversity as the basis for the Court’s 4 exercise of jurisdiction. 5 Defendants have moved for dismissal based on the doctrine of forum non conveniens, 6 arguing that this case should be tried in Mexico. They have agreed to accept service if this 7 action is filed in Mexico. Application of this doctrine is governed by the factors set forth in 8 Gulf Oil v. Gilbert, 330 U.S. 501, 509–10 (1947). The Court is also mindful of the purpose 9 of the doctrine, and guidance for its application, set forth in Carijano v. Occidental Petroleum 10 11 Corp., 643 F.3d 1216 (9th Cir. 2011). As pointed out there, 17 The doctrine of forum non conveniens is a drastic exercise of the court's “inherent power” because, unlike a mere transfer of venue, it results in the dismissal of a plaintiff's case. . . . Therefore, we have treated forum non conveniens as “an exceptional tool to be employed sparingly,” and not a “doctrine that compels plaintiffs to choose the optimal forum for their claim.” Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir.2002) (quoting [Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000)]) (internal quotations omitted). The mere fact that a case involves conduct or plaintiffs from overseas is not enough for dismissal. See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1181–82 (9th Cir. 2006) (“Juries routinely address subjects that are totally foreign to them, ranging from the foreign language of patent disputes to cases involving foreign companies, foreign cultures and foreign languages.”) 18 Id. at 1224. This holding makes clear the doctrine will be applied only in exceptional cases, 19 not merely for the sake of increasing convenience, but where the chosen venue is decidedly 20 inconvenient, perhaps even chosen for the sake of its inconvenience to a defendant. Id. 21 Although this opinion does not discuss the application of these standards to the facts of this 22 situation in great depth, the Court has carefully considered the parties’ positions as set forth 23 in their briefing, and applied these standards in reaching its decision. 12 13 14 15 16 24 A defendant bears the burden of demonstrating that the doctrine should be applied, 25 because of the availability of an adequate alternative forum, and because the balance of 26 private and public interest factors favors dismissal. Carijano, 643 F.3d at 1224. The standard 27 has also been stated more simply as requiring “a clear showing of facts which establish such 28 oppression and vexation of a defendant as to be out of proportion to a plaintiff's -2- 10cv1939 1 convenience.” Boston Telecommunications Group, Inc. v. Wood, 588 F.3d 1201, 1212 (9th 2 Cir.2009). The Court need not rely solely on the pleadings, but may accept declarations 3 outside the pleadings. See Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988). 4 The parties do not dispute that Mexico is available as a forum or that Mexican law and 5 the Mexican legal system could provide an adequate remedy; their dispute concerns 6 primarily the private factors, and secondarily the public interest factors. 7 The complaint alleges that, in Rocha’s facilities in California, all Defendants loaded 8 the compressor onto a TIC truck, which Carmona then drove into Mexico where the accident 9 occurred. Compression argues Rocha was negligent in selecting TIC and Carmona, all 10 Defendants were negligent in the way they loaded and secured the compressor, and 11 Carmona was negligent in the manner in which he drove the truck. 12 For its part, Rocha gives a different story. Rocha says it had no agreement with 13 Compression at all, but that instead there was agreement between Rocha and a customer, 14 Henkels de Mexico S.A. de R.L. de C.V.,1 for Rocha to transport the compressor. In its 15 answer, Rocha raised as a defense failure to join Henkels as a necessary party, though 16 Rocha has separately moved to dismiss on this basis. In their answer, Defendants say 17 Rocha’s driver only transported the compressor into Mexico, where it was safely delivered 18 to TIC for further transportation, and the driver returned in his truck to the U.S. (Answer, ¶ 19 11.) The answer does not say whether the compressor was unloaded or whether it remained 20 secured on a trailer when delivered to TIC. The answer also alleges that Compression 21 interfered with the Mexican government’s investigation of the accident, by paying to have the 22 compressor released from official impound. The Court will assume these pleaded facts to 23 be true for purposes of ruling on this motion, though ordinarily they would be proved by 24 declaration or other competent evidence. For reasons discussed below, whether the pleaded 25 facts are true or not, the Court’s ruling would be the same. 26 /// 27 1 28 The compressor was to have been delivered to Henkels’ facility in Mexico. Rocha says Henkels is a Mexican company. Compression argues Henkels is merely a Mexican affiliate of an American company. -3- 10cv1939 1 Because the Court is sitting in diversity, it applies the law of the forum state. Salve 2 Regina College v. Russell, 499 U.S. 225, 226 (1991) (citing Erie R. Co. v. Tompkins, 304 3 U.S. 64 (1938)). Although the parties have discussed insurance contracts, insurance plays 4 no real role in this dispute. It may be that the parties owe obligations to third parties, such 5 as insurers, but neither St. Paul nor any other insurer is a party to this action, nor has either 6 party claimed that an insurer is a necessary party. The claims sound in tort, rather than in 7 contract. 8 Ordinarily a plaintiff’s choice of forum is entitled to some deference. Obviously it is not 9 dispositive, or no forum non conveniens motion would ever be granted. Where no plaintiff 10 is a resident of the chosen forum, however, the choice is entitled to less deference than 11 otherwise. Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir. 12 1999). That is the case here: only Rocha is California citizen; Compression is a Wyoming 13 company. 14 The alleged tort or torts giving rise to Compression’s claim for damages allegedly 15 occurred both in California and in Mexico, although the connections to Mexico are stronger. 16 If, as alleged, Rocha improperly secured the compressor when it first left Rocha’s facility in 17 California, or if Rocha was negligent in entrusting the compressor to TIC and Carmona, a 18 portion of the tort occurred in California. At the same time, Carmona’s and TIC’s acts or 19 omissions in Mexico (because of their alleged failure to confirm the compressor was properly 20 secured before it left TIC’s facility, or for Carmona’s allegedly negligent driving) would have 21 contributed more directly to the damage. It is possible, even accepting the complaint’s 22 allegations, that TIC’s and Carmona’s negligence might serve as an intervening cause and 23 cut off Rocha’s liability. The negligent entrustment claim, if accepted, necessarily occurred 24 in both California (where Rocha is) and in Mexico (where TIC and Carmona were). Defenses 25 such as indemnity, spoliation of evidence by Compression, inequitable conduct by 26 Compression after the accident, Compression’s failure to mitigate damages, and third-party 27 negligence, are based on alleged events in Mexico. 28 /// -4- 10cv1939 1 The most relevant corresponding evidence therefore appears to be in Mexico. The 2 accident scene is there, and most witnesses are there. Relevant documents, such as the 3 accident report, are in Spanish, though Compression points out they are available and can 4 be translated. Compression also argues that necessary witnesses can be deposed in 5 Mexico. The accident site has been photographed and can still be inspected or visited by 6 experts or other witnesses. Considering all the likely evidence, it appears the major part 7 would be in Mexico but still obtainable in this action. More importantly, Rocha’s briefing 8 focuses on convenience, expeditiousness, and expense, rather than absolute unavailability. 9 The only suggestion of actual prejudice that is supported by evidence is the unavailability of 10 Mexican officials, such as those present at the border crossing and those who investigated 11 the accident. At the same time, there is no showing that these witnesses are hostile or would 12 resist giving evidence, either by deposition or otherwise. considering all the factors raised 13 in the briefing, the Court concludes that although the private factors show Mexico would be 14 somewhat more convenient, they do not show this District is inconvenient enough to meet 15 the standard. See Gulf Oil, 330 U.S. at 508 (“[U]nless the balance is strongly in favor of the 16 defendant, the plaintiff's choice of forum should rarely be disturbed.”) 17 The public interest factors are of even less help to Rocha. Among these factors are 18 court congestion, imposition of jury duty on a community with no relation to the litigation, and 19 the benefits of deciding local controversies locally. Here, both communities have some 20 relationship to the dispute. The community in this District has an interest in the regulation of 21 businesses located here, while Mexico has an interest in adjudicating claims arising from an 22 accident there. The remaining factors do not weigh strongly either way. 23 In view of the applicable standards, the Court concludes Rocha has not met its 24 burden of showing why this action should be dismissed pursuant to the forum non 25 conveniens doctrine. The motion is therefore DENIED. 26 No later than five calendar days from the date this order is issued, the parties are to 27 meet and confer, and contact the chambers of Magistrate Judge Bernard Skomal to arrange 28 /// -5- 10cv1939 1 for an early neutral evaluation and a case management conference to set dates, both of 2 which are to be held no later than March 30, 2012. 3 4 5 IT IS SO ORDERED. DATED: March 1, 2012 6 7 HONORABLE LARRY ALAN BURNS United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 10cv1939
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