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United States Court of Appeals

Fifth Circuit

FILED

January 7, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

______________________________

No. 03 - 60802

______________________________

BEATRIZ DOMINGUEZ-COTA; GUADALUPE GLORIA COTA-LEYVA, Individually

and on behalf of the wrongful death beneficiaries of Leticia

Dominguez-Cota, Deceased; MARIA GUADALUPE LARA-DOMINGUEZ;

GUADALUPE GLORIA COTA-LEYVA, Individually and on behalf of the

wrongful death beneficiaries of Axel Dominguez, Deceased.

Plaintiffs-Appellants-Cross-Appellees,

VERSUS

COOPER TIRE & RUBBER CO., JOHN DOES 1-20,

Defendants- Appellees.

and

GENERAL MOTORS CORPORATION; JOHN T. EBERT,

Defendants-Cross-DefendantsAppellees-Cross-Appellees,

VERSUS

VICENTE DOMINGUEZ-MENDOZA,

Defendant-Cross-ClaimantAppellee-Cross-Appellant

_______________________________________________________

Appeal from the United States District Court for the Northern

District of Mississippi

_______________________________________________

Before REAVLEY, DAVIS and WIENER, Circuit Judges, 

PER CURIAM:

This is an appeal from an order granting the Defendants’
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motion to dismiss the Plaintiffs’ claims on the basis of forum

non conveniens. For the reasons set forth below, we vacate the

order and remand the case to the district court.

I.

The underlying litigation in this appeal arises out of a

single vehicle accident that occurred on June 26, 2001, on a

Mexican national highway in Camino Tijuana/Cabo San Lucas,

Mexico. Plaintiffs, all of whom are Mexican nationals, allege

that the General Motors vehicle in which they traveled as well as

a Cooper Tire & Rubber Company tire on the vehicle, were

defective and contributed to the accident. The Plaintiffs have

also named Vincente Dominguez-Mendoza, their family member and

the driver of the vehicle, as a defendant in the underlying

action, alleging negligence and that he was thus at least

partially responsible for causing the accident. The district

court dismissed the action based on forum non conveniens.

II.

In granting the Defendants’ motion, the district court

reached the forum non conveniens issue before deciding whether it

had subject matter jurisdiction over the controversy. It is a

settled principle that, “before proceeding with a case, federal

trial and appellate courts have the duty to examine the basis for

their subject matter jurisdiction, doing so on their own motion

if necessary”. Torres v. Southern Peru Copper Corp., 113 F.3d
1See also, 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

¶12.30 (Matthew Bender 3d edition), “[E]ven if the litigants do

not identify a potential problem [with respect to subject matter

jurisdiction], it is the duty of the court - at any level of the

proceedings - to address the issue sua sponte whenever it is

perceived”.

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540, 542 (5th Cir. 1997).1 Appellees argue that the Supreme

Court’s holding in Ruhrgas AG v. Marathon Oil Co., et al., 526

U.S. 574 (1999), grants courts the discretion to evaluate

threshold “non-merits issues” before ruling on subject matter

jurisdiction. Characterizing forum non conveniens as such a “nonmerits issue”, Appellees argue that the district court’s

dismissal of this case was justified. Appellees read Ruhrgas too

broadly. 

In Ruhrgas, the Supreme Court held only that, while Article

III “requires a federal court to satisfy itself of its

jurisdiction over the subject matter before it considers the

merits of a case”, Ruhrgas, 526 U.S. at 583, the district court

did not abuse its discretion in evaluating personal jurisdiction

before it reached subject matter jurisdiction. We disagree with

Appellee that the Supreme Court’s holding can be stretched to

encompass “non-merits” issues, other than jurisdiction, such as

forum non conveniens.

Thus, we hold that the district court erred in dismissing

the case on forum non conveniens grounds without first

determining whether it had subject matter jurisdiction.

In so holding, we disagree with other Circuits that have
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addressed this issue, namely the 2nd Circuit and the DC Circuit.

See In the Matter of Arbitration between Monegasque De

Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 497

- 498 (2nd Cir. 2002). See also In re Minister Papandreou, 139

F.3d 247 (D.C. Cir. 1998).In Monegasque De Reassurances S.A.M.,

the Second Circuit held that, because it was not being called

upon to decide a constitutional issue, it was not first required

to pass on the question of jurisdiction before ruling on forum

non conveniens, a creature of statute. Monegasque de Reassurances

S.A.M., 311 F.3d at 498. Similarly, in Papandreou, a case decided

before Ruhrgas, the D.C. Court of Appeals held that “what is

beyond the power of courts lacking jurisdiction is adjudication

on the merits, the act of deciding the case”. Papandreou, 139

F.3d at 255. The holding, therefore, is that an issue not

involved with the merits is not beyond the power of courts

lacking jurisdiction. The arguments of both courts are

represented by the following passage from the D.C. opinion:

Thus, although subject-matter jurisdiction is special for 

many purposes (e.g., the duty of courts to bring it up on 

their own), a court that dismisses on other non-merits 

grounds such as forum non conveniens and personal 

jurisdiction, makes no assumption of law declaring power 

that violates the separation of power principles underlying 

Mansfield and Steel Company.

Papandreou, 139 F.3d at 255. Thus, both Circuits label forum non

conveniens as a non-merits issue and so hold valid the process of

using forum non conveniens as a grounds for dismissal where
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subject matter jurisdiction has not first been decided. For the

following reasons, we disagree with this analysis.

Before the Supreme Court decided Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83 (1998), courts sometimes employed

a doctrine similar to that followed by the 2nd and D.C. Circuits.

This doctrine, called “hypothetical jurisdiction”, allowed a

court to assume jurisdiction for the purpose of deciding the

merits of the case without first assessing the court’s

jurisdiction. The Court, in Steel Co., rejected this technique

and held that subject matter jurisdiction must be decided first.

Steel Co., 523 U.S. at 94. In Ruhrgas, the Court reinforced Steel

Co.’s holding, but relaxed it with respect to personal

jurisdiction. That is, the Court held that where a district court

is “convinced that the challenge to the court’s subject-matter

jurisdiction is not easily resolved” and has before it a

straightforward personal jurisdiction issue, then the court does

not abuse its discretion by turning directly to personal

jurisdiction. Ruhrgas, 526 U.S. at 588. 

Appellants urge an expansive reading of Ruhrgas, arguing

that the Supreme Court authorized a court to pretermit a ruling

on jurisdiction and decide the case on any “non-merits” issue.

They then characterize forum non conveniens as a non-merits

issue. As stated above, we do not read Ruhrgas broadly enough to

allow us to pretermit a decision on jurisdiction before deciding

some other “non-merits” issue. Even, however, if we could read
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Ruhrgas that broadly, we are satisfied, based on our precedent,

that “the question of the convenience of the forum is not

‘completely separate from the merits of the action.’” Van

Cauwenbreghe v. Biard, 486 U.S. 517, 527 -28 (1988). See also

Partrederieit Treausre Saga v. Joy Mfg. Co., 804 F.2d 308, 310

(5th Cir. 1986). 

The forum non conveniens inquiry consists of several steps. 

First, the defendant invoking the doctrine must establish 

that an alternate forum is both available and adequate. An 

available forum is one where the case and all the parties 

can come within its jurisdiction...

Having established an available and adequate forum, the

defendant must then show that certain private factors 

support dismissal. These private factors are: (1) the 

relative ease of access to sources of proof; (2) the 

availability of compulsory process for attendance of 

unwilling, and the costs of obtaining attendance of willing,

witnesses; (3) probability of an opportunity to view the 

premises, if view would be appropriate to the action; and 

(4) other factors affecting the ease, speed, and expense of 

trial or the enforceability of a judgment if obtained. 

If these private interest factors do not indicate that 

another forum is better suited for trial of the case, the 

court should then examine certain public interest 

factors...The public interest factors are: The 

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.

Brokerwood Products International, Inc. V. Cuisine Crotone, Inc.,

No. 03-30622, 2004 U.S. App. LEXIS 14224, at **17 (5th Cir. July

9, 2004). In order to apply this analysis, the court must look at

the particular facts of the case, and to this extent, it must
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reach the merits. For example, the court, in evaluating the

“private factors” must review the evidence in order to determine

whether or not it will be accessible in the respective forums and

consider the fairness of litigating in the respective forums and

evaluate the difficulty of litigating the case in a forum which

has few contacts with the litigants or with the accident. For

these reasons the Supreme Court, in Biard, found that when a

federal court considers the private and public interest factors

of a forum non conveniens analysis, “the district court becomes

entangled in the merits of the underlying dispute”. Biard, 486

U.S. at 528 (1988). As a result, therefore, we are unable to

characterize forum non conveniens as a “non-merits” issue akin to

personal jurisdiction.

For the above reasons, we vacate the district court’s order

and remand the case to the district court to determine whether it

has subject matter jurisdiction over this controversy.

VACATED and REMANDED.