IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20354

RAJET AEROSERVICIOS S.A. DE C.V., 

 Plaintiff - Appellant

v.

LUIS CARLOS CASTILLO CERVANTES, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-4441

Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

PER CURIAM:*

At issue in this diversity action is whether the district court erred by: 

granting defendant-appellee’s motion to dismiss for forum non conveniens

(FNC); and sua sponte dismissing this action pursuant to Federal Rule of Civil 

Procedure 12(b)(7). VACATED and REMANDED. 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2020

Lyle W. Cayce

Clerk

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I.

Rajet Aeroservicios S.A. de C.V. (Rajet), owned by Luis Alfredo Rayet 

Diaz (Rayet), is a Mexican charter-flight company. It filed this diversity action

against Luis Carlos Castillo Cervantes (Castillo), a dual citizen of the United 

States and Mexico who resides in the Southern District of Texas, claiming, 

inter alia, Castillo breached an oral contract and seeking payment of unpaid 

invoices, totaling approximately $1.3 million, for flights from April 2015 

through June 2016. Through the documents identified after the following 

statement of facts, the parties dispute many of the underlying facts giving rise 

to this action. 

Rajet, for its part, alleges it began a contractual relationship with 

Castillo for charter flights as early as 2002. Further, Rajet alleges the 

relationship was between it and Castillo personally, despite Rayet’s agreeing, 

on Rajet’s behalf, that it would accept payment from various of Castillo’s 

companies on his behalf. According to Rajet, Castillo and Rayet ultimately 

agreed, during a 2014 telephone conversation, that Rajet would undertake the 

flights at issue for Castillo, which Rajet alleges included cross-border flights to 

Texas. Rajet also alleges: following this conversation, although Castillo made 

35 payments, through five of his companies, for the agreed-upon flights, he 

failed to pay the account balance of approximately $1.3 million. Castillo, 

according to Rajet, never denied the agreement existed or contended a third 

party owed the debt. 

Castillo, by contrast, alleges he never personally contracted, or even 

communicated, with Rajet regarding private air travel. Although Castillo

acknowledges that he was the administrator for Lucamax, a company that 

ordered and paid for flights by Rajet, he alleges Lucamax was the party to any

contract with Rajet and Lucamax staff handled any communications with it. 

Further, Castillo alleges: Lucamax did not order the specific flights at issue, 

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which, contrary to Rajet’s allegation, all occurred in Mexico. Rather, according 

to Castillo, Rajet provided them for Baltazar Manuel Hinojosa Ochoa’s

(Hinojosa) 2016 campaign for Governor of Tamaulipas, Mexico. Castillo 

alleges: Lucamax recommended Rajet to Hinojosa’s campaign, with which 

Castillo was involved; and the campaign is responsible for paying Rajet’s 

unpaid invoices. 

After Rajet filed its complaint in November 2018, Castillo filed: a motion 

to dismiss for FNC or, alternatively, to transfer venue; and a motion to dismiss 

for failure to state a claim under Rule 12(b)(6). Rajet responded to each motion, 

and Castillo filed replies. 

The parties provided limited evidence regarding FNC. Rajet attached to 

its complaint an unsworn declaration from Rayet, a demand letter from its 

counsel to Castillo, and Spanish-language documentation showing the 

transaction history between Rajet and Castillo. In support of his motion to 

dismiss for FNC, Castillo provided his affidavit and an email chain comprised 

of two emails, both sent by Rajet’s counsel. Rajet’s response attached only a 

new, unsworn declaration from Rayet. To his reply, Castillo attached his new 

affidavit, the same email chain from his motion, and a one-page letter from 

Lucamax’s counsel responding to Rajet’s demand letter. 

In May 2019, the court ruled, and rendered final judgment without 

prejudice, granting Castillo’s motion to dismiss for FNC, but failing to include 

the required return-jurisdiction provision, and also sua sponte independently 

dismissing the action pursuant to Rule 12(b)(7) for failure to join a required 

party. See Memorandum and Order, Rajet Aeroservicios S.A. de C.V. v. Luis 

Carlos Castillo Cervantes, No. 4:18-cv-04441 (S.D. Tex. 17 May 2019) (Order). 

In doing so, the court noted its FNC ruling rendered moot Castillo’s motions to 

transfer venue and to dismiss pursuant to Rule 12(b)(6). 

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II.

Rajet challenges the court’s dismissing the action both for FNC and sua 

sponte pursuant to Rule 12(b)(7). Both challenges succeed.

A.

FNC dismissals are “committed to the sound discretion of the trial court” 

and “may be reversed only when there has been a clear abuse of discretion; 

where the court has considered all relevant public and private interest factors, 

and where its balancing of these factors is reasonable, its decision deserves 

substantial deference”. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)

(citations omitted). We are “to review the [district] court’s decisionmaking 

process and conclusion and determine if it is reasonable; our duty is not to 

perform a de novo analysis and make the initial determination for the district 

court”. In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 

F.2d 1147, 1167 (5th Cir. 1987) (en banc) (italics added and citation omitted), 

vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Pampin 

Lopez, 490 U.S. 1032 (1989), opinion reinstated except as to damages, 883 F.2d 

17 (5th Cir. 1989) (en banc) (per curiam).

For starters, Rajet claims the court abused its discretion by failing to 

include the requisite return-jurisdiction clause in its order of dismissal. More 

fundamentally, Rajet also claims the court abused its discretion by conducting 

an inadequate FNC analysis that neither considered relevant evidence nor 

properly applied the various elements of the FNC doctrine. We agree

regarding both claims.

“[FNC] dismissals and federal venue transfers are entirely distinct 

schemes.” Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1246 (5th Cir. 

1983). Federal venue-transfer statutes “facilitat[e] easy change of venue 

within a unified federal system”, see id. (internal quotation marks and citation 

omitted), whereas “[t]he common-law doctrine of [FNC] has continuing 

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application [in federal courts] only in cases where the alternative forum is 

abroad . . . and perhaps in rare instances where a state or territorial court 

serves litigation[] convenience best”, Sinochem Int’l Co. v. Malay. Int’l 

Shipping Corp., 549 U.S. 422, 430 (2007) (third alteration in original) (internal 

quotation marks and citations omitted).

“[A] federal court sitting in a diversity action is required to apply the 

federal law of [FNC] when addressing motions to dismiss a plaintiff’s case to a

foreign [i.e., non-federal] forum”. Air Crash Disaster, 821 F.2d at 1159. “The 

general principle of the [federal FNC] doctrine is simply that a court may resist 

imposition upon its jurisdiction even when jurisdiction is authorized.” Dickson 

Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 342 (5th Cir. 1999) (internal

quotation marks and citation omitted). 

The doctrine “presupposes at least two forums where the defendant is 

[amenable] to process and simply furnishes criteria for choice between them”, 

and courts follow a two-step inquiry, focused on convenience, when analyzing 

a motion to dismiss for FNC. See id. (citations omitted). First, and obviously, 

there must be an adequate and available alternative forum. See id. (citation 

omitted). “An alternative forum is adequate if the parties will not be deprived 

of all remedies or treated unfairly, even though they may not enjoy the same 

benefits as they might receive in [a federal] court.” Vasquez v. 

Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003) (internal 

quotation marks and citation omitted). “An alternative forum is considered 

available if the entire case and all parties can come within its jurisdiction.” Id.

(citation omitted).

“[O]nce an adequate and available alternate forum is identified, several 

‘private’ and ‘public’ interest factors must be balanced in order to determine if 

dismissal is warranted”. Dickson, 179 F.3d at 342 (citation omitted). Privateinterest factors, relating to litigant convenience, include:

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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.

Piper, 454 U.S. at 241 & n.6 (citations omitted). Public-interest factors, 

relating to forum convenience, include: 

administrative difficulties flowing from court congestion; the local 

interest in having localized controversies 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 conflict of laws, or in the application of 

foreign law; and the unfairness of burdening citizens in an 

unrelated forum with jury duty.

Id. (internal quotation marks and citations omitted).

“[T]here is ordinarily a strong presumption in favor of the plaintiff’s 

choice of forum, which may be overcome only when the private and public 

interest factors clearly point towards trial in the alternative forum”. Id. at 255. 

This presumption, however, is weaker with, as in this instance, a foreign 

plaintiff. Id. at 256 (citations omitted). In any event, “no one private or public 

interest factor should be given conclusive weight”, and “dismissal for [FNC] is 

the exception rather than the rule”. Air Crash Disaster, 821 F.2d at 1163, 1164 

n.26 (citation omitted).

The moving defendant bears the burden on all elements of the FNC 

inquiry. Id. at 1164 (citations omitted). In this regard, “we require a defendant 

to put forth unequivocal, substantiated evidence presented by affidavit 

testimony”. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1550 n.14 (5th Cir. 

1991) (citation omitted). Along that line, “a moving defendant need not submit 

overly detailed affidavits to carry its burden, but it must provide enough 

information to enable the district court to balance the parties[’] interests”. Air 

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Crash Disaster, 821 F.2d at 1164–65 (internal quotation marks and citation 

omitted). And, “[a]lthough the level of detail required is dependent on the facts 

of each particular case, the defendant must at least allege detailed facts in its 

motion for dismissal which, if not controverted, are sufficient to support [an 

FNC] dismissal”. Raytheon Eng’rs & Constructors, Inc. v. H L H & Assocs. Inc., 

No. 97-20187, 1998 WL 224531, at *4 (5th Cir. 17 Apr. 1998) (per curiam) 

(citations omitted). 

1.

In general, a return-jurisdiction clause in a dismissal for FNC “permit[s] 

parties to return to the dismissing court should the lawsuit become impossible 

in the foreign forum”. Vasquez, 325 F.3d at 675. All FNC dismissals must 

include such a clause. See id. (“The failure to include a return[-]jurisdiction 

clause in an [FNC] dismissal constitutes a per se abuse of discretion.” (internal 

quotation marks and citation omitted)); Robinson v. TCI/US W. Commc’ns 

Inc., 117 F.3d 900, 908 (5th Cir. 1997) (“[T]he failure to include a return[-]

jurisdiction clause is a fatal error”. (citing Baris, 932 F.2d at 1551)).

This is because, as our court has repeatedly made clear, “courts must 

take measures, as part of their dismissals in [FNC] cases, to ensure that 

defendants will not attempt to evade the jurisdiction of the foreign courts”. 

Baris, 932 F.2d at 1551. Notably, “[s]uch measures often include agreements 

between the parties to litigate in another forum, to submit to service of process 

in that jurisdiction, to waive the assertion of any limitations defenses, to agree 

to discovery, and to agree to the enforceability of the foreign judgment”. Id.

(citations omitted). A return-jurisdiction clause assists in preventing

defendants from circumventing these measures and ensures plaintiffs have the 

opportunity to proceed with the action in one of the forums. 

Because, as the parties agree, the court did not include a returnjurisdiction clause, “[a]t a minimum, . . . the district court’s ruling on [FNC] 

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must be vacated and remanded for the implementation of [that] clause”. 

Robinson, 117 F.3d at 908.

2.

The scope of our remand, however, must go further. This is because a 

court also abuses its discretion in ruling on a motion to dismiss for FNC “when 

it summarily denies or grants a motion to dismiss without either written or 

oral explanation” or “fails to address and balance the relevant principles and 

factors of the doctrine”. Air Crash Disaster, 821 F.2d at 1166–67 (citations 

omitted). Similarly, a court abuses its discretion by not holding a moving 

defendant to his burden on all elements of the FNC analysis. See Raytheon, 

1998 WL 224531, at *4 (citation omitted). A district court’s findings and 

conclusions, therefore, “must be complete, detailed, and explicit”; and it must 

identify and explain its resolution of any conflicts in the evidence. CTF Cent. 

Corp. v. Inter-Cont’l Hotels Corp., No. 94-20841, 1995 WL 725353, at *7 (5th 

Cir. 13 Nov. 1995) (per curiam) (pursuant to Fifth Circuit Rule 47.5.4: 

precedential, even though unpublished, because issued before 1 January 1996).

As Rajet conceded at oral argument here, the court properly articulated

the FNC legal framework. But its analysis under that framework, quoted in 

full as follows, stated only:

The evidence shows that at least two forums are available to 

the plaintiff as it relates to the defendant -- Mexico and Texas. The 

evidence is also disputed that the Mexican forum is adequate for 

resolution of the parties’ disputes, and that the parties will not be 

deprived of all remedies or otherwise be treated unfairly. Alpine 

View Co., 205 F.3d at 221. [Alpine View Co. v. Atlas Copco AB, 205 

F.3d 208, 221 (5th Cir. 2000).] Moreover, there is no evidence that 

Texas has an interest equal to or greater than that enjoyed by 

Mexico.

Finally, the defendant has established that private and 

public interest[s] favor Mexico. Specifically, Mexico has a primary 

interest in the resolution of this dispute because all witnesses and 

documents are in Mexico, or subject to process there and, the 

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witnesses[’] testimony and the documentary evidence generally 

will require translations and/or interpretations that would 

unnecessarily extend the time and expense associated with a trial 

in Texas.

Order at 4. (In the light of the court’s FNC ruling, it may have meant 

undisputed, not disputed, in the above sentence in the first quoted paragraph: 

“The evidence is also disputed that the Mexican forum is adequate for 

resolution of the parties’ disputes, and that the parties will not be deprived of 

all remedies or otherwise be treated unfairly.” (Emphasis added.))

Regarding the court’s threshold finding that Mexico is an available

alternative forum, it did not describe the “evidence” it used to reach this 

conclusion. And, regarding Mexico’s availability vel non as a forum, it did not 

address the parties’ dispute over the effect of Castillo’s federal-court-imposed

restrictions on his traveling outside the Southern District of Texas (from a 

separate and ongoing criminal matter). The court similarly did not identify 

the “evidence” it relied on in making its threshold adequacy finding. 

Moreover, of the numerous private-interest and public-interest factors 

that require balancing as part of the FNC inquiry, the court’s opinion briefly 

considered only two. Those two factors—practical concerns surrounding 

translations and/or interpretations and the location and availability of 

documents and witnesses—relate to private interests and are mentioned in a 

single, conclusory sentence. 

Therefore, the court’s order did not “address and balance the relevant 

principles and factors of the [FNC] doctrine” with the level of detail our 

precedent demands. See CTF Cent. Corp., 1995 WL 725353, at *7; Air Crash 

Disaster, 821 F.2d at 1166–67 (citations omitted). It also did not resolve 

conflicts in the above-described evidence provided by the parties, particularly 

where evidence cuts against its conclusions, see CTF Cent. Corp., 1995 WL 

725353, at *7, which is vital where, as here, the parties provided conflicting 

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factual accounts. The court, therefore, abused its discretion on this issue. We 

vacate the dismissal on this FNC basis and remand to district court for further 

proceedings consistent with this opinion.

In doing so, and “[a]s is standard in such situations, we ‘intimate no view 

as to what ultimate decision the court should make on the [FNC] issue’”. Royal 

Ten Cate USA, Inc. v. TT Inv’rs, Ltd., 562 F. App’x 187, 191 (5th Cir. 2014) (per 

curiam) (quoting Baris, 932 F.2d at 1552). Moreover, “[t]he district court is 

reminded: with regard to disputed issues of fact in a motion to dismiss for 

[FNC], the moving party retains the burden of proof regarding all issues”, CTF 

Cent. Corp., 1995 WL 725353, at *9 (citations omitted); and the court may take 

additional evidence from the parties in making its new FNC determination,

see, e.g., Royal Ten Cate, 562 F. App’x at 191; Baris, 932 F.2d at 1552. And,

because we review FNC dismissals for clear abuse of discretion, not de novo, 

the district court is also reminded it must provide on remand thorough findings 

of fact and conclusions of law in making its new FNC decision. See, e.g., 

Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir. 1989)

(per curiam). Finally, should the court reach the same conclusion on remand, 

it is again reminded to include a return-jurisdiction clause in its new order of 

dismissal. See, e.g., Vasquez, 325 F.3d at 675 (citation omitted).

B.

Dismissals pursuant to Rule 12(b)(7) (failure to join a required party) are 

also reviewed for abuse of discretion. HS Res., Inc. v. Wingate, 327 F.3d 432, 

438–39 (5th Cir. 2003) (citation omitted). A ruling “based on an erroneous view 

of the law” constitutes such an abuse of discretion. Hood ex rel. Miss. v. City 

of Memphis, 570 F.3d 625, 628 (5th Cir. 2009) (citation omitted).

Rajet contends the court abused its discretion in sua sponte dismissing 

the action pursuant to Rule 12(b)(7) because it misapplied Rule 19 and 

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improperly determined unnamed Mexican parties were indispensable to this 

action. We agree.

In a diversity action, joinder is a question of federal law. Provident 

Tradesmens Bank & Tr. Co. v. Patterson, 390 U.S. 102, 125 n.22 (1968) 

(citation omitted). Rule 12(b)(7) permits dismissal of an action for “failure to 

join a party under Rule 19”, see Fed. R. Civ. P. 12(b)(7), with Rule 19’s detailing 

the requirements for required-party joinder, see Fed. R. Civ. P. 19. 

Rule 19 “requires a two-step inquiry” that “is a highly-practical, factbased endeavor”. Hood, 570 F.3d at 628 (citation omitted). “First a court must 

determine whether a party should be added under the requirements of [Rule] 

19(a); then the court must determine [under Rule 19(b)] whether litigation can 

be properly pursued without the absent party . . . .” August v. Boyd Gaming 

Corp., 135 F. App’x 731, 732 (5th Cir. 2005) (citation omitted). “If the absent 

party should be joined under [R]ule 19(a), but the suit cannot proceed without 

that party under the requirements of [R]ule 19(b), the case must be dismissed.” 

Id. And, although a party may move for a Rule 12(b)(7) dismissal, “[a] court 

with proper jurisdiction may also consider sua sponte the absence of a required 

person and dismiss for failure to join”. Republic of Phil. v. Pimentel, 553 U.S.

851, 861 (2008) (citations omitted). 

For its sua sponte dismissal pursuant to Rule 12(b)(7), the court

identified the relevant law but stated, without further explanation: “The Court 

has performed an appraisal of the facts and concludes that a necessary party 

to the resolution of this dispute is absent. The plaintiff has not presented any 

evidence, beyond its pleadings, that renders doubtful the Court’s appraisal”. 

Order at 6. The court did not then identify the indispensable party or parties, 

but it had stated earlier in its order that “individual Mexican citizens, 

includ[ing] L[u]camax, are indispensable parties over which the Court lacks 

jurisdiction”. Id. at 2. 

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Such conclusory analysis is insufficient to justify a Rule 12(b)(7) 

dismissal. See, e.g., Santiago v. Honeywell Int’l, Inc., 768 F. App’x 1000, 1007 

(11th Cir. 2019) (per curiam) (noting a court “abused its discretion by not 

undertaking a complete Rule 19 analysis” and by not otherwise “adequately 

explain[ing] why [an entity] was an indispensable party”). This is particularly 

true given that the court ruled on the issue sua sponte and without affording 

the parties the opportunity to address it. 

But even assuming arguendo the court’s ruling contains sufficient 

analysis showing how its consideration of the various elements of Rule 19 

justified its Rule 12(b)(7) dismissal, the court’s application of Rule 19 cannot 

be correct. This is because Rule 19 relates to the specific action at bar. See, 

e.g., Fed. R. Civ. P. 19(b) (emphasis added) (“If a person who is required to be 

joined if feasible cannot be joined, the court must determine whether, in equity 

and good conscience, the action should proceed among the existing parties or 

should be dismissed.”). This action is between Rajet and Castillo over, inter 

alia, a claimed breach of contract. It goes without saying that Rule 19 is not 

the proper mechanism for reviewing whether that claimed contract existed or 

Castillo was a party to it. Rather, the rule is designed to evaluate whether a 

non-party either impedes the court’s ability to “accord complete relief among 

existing parties” or has, among additional requirements, “claim[ed] an interest 

relating to the subject of the action”—the only two tests for determining 

whether a person is a required party under Rule 19(a). See Fed. R. Civ. P. 

19(a)(1)(A)–(B). 

That is not the case here: the court can otherwise afford Rajet relief, and 

no non-party has claimed any “interest relating to the subject of the action”—

the claimed contract between Rajet and Castillo. See Fed. R. Civ. P. 

19(a)(1)(B). The court’s sua sponte Rule 12(b)(7) dismissal, therefore, was an 

abuse of discretion. 

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III.

For the foregoing reasons, the dismissals pursuant to FNC and Rule 

12(b)(7) are VACATED; and this action is REMANDED to district court for 

further proceedings—including the FNC issues—consistent with this opinion. 

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