IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40563

ROSA SARAMIENTO MORENO, 

 Plaintiff – Appellant,

v.

LG ELECTRONICS, USA INCORPORATED; LG ELECTRONICS, 

REYNOSA, S.A. DE C.V.; LG ELECTRONICS REYNOSA; DOES 1–5; LG 

ELECTRONICS USA, INCORPORATED, REYNOSA, 

 Defendants – Appellees.

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, JONES, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Rosa Saramiento Moreno appeals from an order of the district court that 

set aside a clerk’s entry of default against one of the named defendants, 

granted that defendant’s motion to dismiss on the basis of forum non 

conveniens, and denied as moot Moreno’s motion for entry of default against 

the other named defendant. Because Moreno cannot show that any purported 

procedural error prejudiced her, and because the district court’s dismissal on 

forum non conveniens grounds was not an abuse of discretion, we affirm.

United States Court of Appeals

Fifth Circuit

FILED

September 8, 2015

Lyle W. Cayce

Clerk

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I.

After allegedly suffering a disabling injury at her workplace in Mexico, 

Moreno brought this diversity suit against her employer and several other 

defendants: LG Electronics, U.S.A., Inc. (“LG USA”); LG Electronics, U.S.A., 

Inc., Reynosa (“LG Reynosa”); and five unnamed corporate entities.1 Moreno 

requested that the clerk enter defaults against the named defendants, LG USA 

and LG Reynosa. The district court granted the request as to LG USA and 

directed the clerk to enter a default against it, but the district court refused to 

direct entry of a default against LG Reynosa because LG Reynosa was served 

at an address different from the one listed in the summons. Moreno again 

moved for entry of default against LG Reynosa,2 but the district court did not 

immediately rule on the motion because LG USA appeared after its default 

was entered.

LG USA moved to extend time to answer or respond to the complaint, to 

set aside the default entered against LG USA, for a dismissal as to LG Reynosa 

for lack of personal jurisdiction, and for a dismissal as to both LG USA and LG 

Reynosa on the basis of forum non conveniens. In its motions, LG USA 

maintained that LG Reynosa does not exist and that LG USA appeared on its 

behalf out of an abundance of caution.

 

1 The original complaint included as defendants, in addition to five unnamed corporate 

entities and LG USA, two other named corporate entities with names different from (but 

similar to) LG Reynosa. The amended complaint, however, named only the five anonymous 

corporate entities, LG USA, and LG Reynosa.

2 As a point of clarification, although Moreno filed an advisory announcing her intent 

to “file a default judgment,” she in fact never moved for default judgment; her motions sought 

only the clerk’s entry of default under Rule 55(a) of the Federal Rules of Civil Procedure. The 

district court never entered a default judgment against any defendant, and the only default 

that was ever entered in this case was entered by the clerk against LG USA.

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In response to LG USA’s forum non conveniens motion, Moreno argued 

that LG USA, as a defaulting defendant, could not assert procedural defenses, 

but she did not respond to the merits of the motion. Over six months later, the 

district court issued a single order that granted LG USA’s motion to set aside 

its default, granted LG USA’s motion to dismiss on the basis of forum non 

conveniens, and denied as moot Moreno’s motion for entry of default against 

LG Reynosa. Moreno then initiated this appeal, arguing that the district court 

procedurally erred by setting aside the default and ruling on the forum non 

conveniens motion in a single order.

II.

“Federal courts apply the federal version of [forum non conveniens

doctrine] in resolving a motion to dismiss where the alternative forum is a 

foreign tribunal.” Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 

(5th Cir. 2003). To obtain dismissal on the basis of forum non conveniens, the 

defendant must show “(1) the existence of an available and adequate 

alternative forum and (2) that the balance of relevant private and public 

interest factors favor dismissal.” Id. This court reviews for abuse of discretion 

an order dismissing a suit on the basis of forum non conveniens. DTEX, LLC 

v. BBVA Bancomer, S.A., 508 F.3d 785, 787 (5th Cir. 2007). 

When an appellant “challenges the procedural propriety of the district 

court’s entry of final judgment” by alleging that the district court gave no notice 

that it would rule on the merits, she must show “prejudice from the lack of 

notice.” Atl. Richfield Co. v. F.T.C., 546 F.2d 646, 651 (5th Cir. 1977). This 

requires the appellant to demonstrate “‘that the lack of notice caused [her] to 

withhold certain proof which would show his entitlement to relief on the 

merits.’” Id. (quoting Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096, 

1106 (5th Cir. 1972)).

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III.

A.

We first examine whether we have jurisdiction to entertain this appeal. 

Cf. Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir. 2001) (“Even absent 

a challenge by a litigant . . . we must examine the basis of our jurisdiction sua 

sponte . . . .”). In its brief, LG USA states that we have jurisdiction under 28 

U.S.C. § 1291,3 but at the same time, it asserts that the district court’s order

“is arguably not a final and appealable order because there was no separate 

judgment as required by Federal Rule of Civil Procedure 58(a).”

We have jurisdiction over this appeal. The district court entered its order 

dismissing Moreno’s suit on May 7, 2014, and Moreno timely filed her notice of 

appeal on May 29, 2014. As amended in 2002, Rule 4 of the Federal Rules of 

Appellate Procedure explicitly provides that “[a] failure to set forth a judgment 

or order on a separate document when required by Federal Rule of Civil 

Procedure 58(a) does not affect the validity of an appeal from that judgment or 

order.” Fed. R. App. P. 4(a)(7)(B); see also Fed. R. App. P. 4(a)(7)(A)(ii) (treating 

a judgment or order as entered, notwithstanding a district court’s noncompliance with the separate-document rule, if 150 days have run from the 

district court’s entry of the judgment or order). 

Indeed, even before the 2002 amendment to Rule 4, while we granted 

motions to dismiss an appeal where the district court failed to comply with 

 

3 Forum non conveniens dismissals are final and appealable under 28 U.S.C. § 1291. 

See Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955) (“‘A dismissal in application of that 

[forum non conveniens] or any other principle puts an end to the action and hence 

is final and appealable.’” (quoting Jiffy Lubricator Co. v. Stewart–Warner Corp., 177 F.2d 

360, 362 (4th Cir. 1949)); Cuevas v. Reading & Bates Corp., 770 F.2d 1371, 1375 (5th Cir. 

1985) (“Dismissals on forum non conveniens grounds have been considered final and 

appealable as of right.”), abrogated on other grounds by In re Air Crash Disaster Near New 

Orleans, 821 F.2d 1147 (5th Cir. 1987) (en banc).

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Rule 58’s separate-document requirement, see Nagle v. Lee, 807 F.2d 435, 441 

(5th Cir. 1987), we also acknowledged that the requirement “is not 

jurisdictional and may be waived.” Transit Mgmt. of Se. La., Inc. v. Grp. Ins. 

Admin., Inc., 226 F.3d 376, 382 n.8 (5th Cir. 2000); see also Bankers Trust Co. 

v. Mallis, 435 U.S. 381, 387–88 (1978) (holding that a district court’s 

noncompliance with the separate-document rule is waived where the order is 

evidently intended to represent the final decision and the appellee does not 

object); Hanson v. Town of Flower Mound, 679 F.2d 497, 500–01 (5th Cir. 1982)

(reviewing Mallis and holding that “we may take jurisdiction of an appeal from 

a ‘final decision’ under § 1291, even though no separate judgment has 

been entered, when the parties fail to raise the issue”).

By asserting that we have jurisdiction and failing to request a dismissal

of the appeal, LG USA has waived the district court’s noncompliance with the 

separate-document rule. Furthermore, nothing in the record or the district 

court’s order reflects that the district court intended its order to be non-final. 

See Catlin v. United States, 324 U.S. 229, 233 (1945) (“A ‘final decision’ 

generally is one which ends the litigation on the merits and leaves nothing for 

the court to do but execute the judgment.”); cf. Farber v. La. State Bd. of Med. 

Examiners, 265 F. App’x 152, 153 (5th Cir. 2008) (dismissing appeal where 

appellee objected to the district court’s noncompliance with the separatedocument rule and the district court’s order “clearly contemplated further 

filing” by a party). Thus, both under the amended version of Rule 4 and our 

pre-amendment precedent, the district court’s failure to set forth its judgment 

on a separate document does not affect the validity of Moreno’s appeal.

B.

LG USA argues that by failing to request from the district court a second 

opportunity to respond to the motion to dismiss, Moreno waived the issue that 

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she argues on appeal. See State Indus. Prods. Corp. v. Beta Tech., Inc., 575 

F.3d 450, 456 (5th Cir. 2009) (“Under our general rule, arguments not raised 

before the district court are waived and will not be considered on appeal unless 

the party can demonstrate extraordinary circumstances.” (internal quotation 

marks omitted)). LG USA is mistaken. First, it would be nonsensical to 

require Moreno to request a second opportunity to respond to the merits of the 

motion before the district court ruled when the error Moreno asserts is that 

the district court gave no notice it would rule on the merits. More importantly, 

in her response to the motion to dismiss, Moreno specifically argued that “[t]he 

procedural defense of forum non conveniens is not available to Defendant LG 

USA since an entry of default has been entered against it and the Court has 

not yet considered LG USA’s Motion to Set Aside Entry of Default.” Because 

this is the same argument that Moreno advances on appeal, she has preserved 

the issue.

C.

Having determined that we have jurisdiction and that Moreno preserved 

the issue she raises, we proceed to the merits. Moreno argues that LG USA, 

as a defaulting defendant, lacked standing to raise procedural defenses such 

as forum non conveniens. Moreno further argues that it was error for the 

district court to simultaneously set aside the default and grant the motion to

dismiss—a procedural defense that LG USA lacked standing to assert. Moreno 

contends that the district court should have either denied LG USA’s motion to 

dismiss without prejudice or, after setting aside the default, should have given 

her an opportunity to respond to the merits of the now-ripe motion to dismiss.

To begin, we note that Moreno does not argue that the district court erred 

by setting aside LG USA’s default, nor could she. Under Rule 55, a district 

court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). 

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The language of this rule is discretionary, and “the decision 

to set aside a default is committed to the sound discretion of the trial court.” 

In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). Furthermore, district courts 

generally should grant motions to set aside a default unless the default was 

willful, the plaintiff will be prejudiced, or the defendant has no meritorious 

defense. See id. at 183–84; United States v. One Parcel of Real Prop., 763 F.2d 

181, 183–84 (5th Cir. 1985). This is because “courts universally favor trial on 

the merits.” Dierschke, 975 F.2d at 183 (internal quotation marks omitted).

Moreno is correct that defaulting defendants forfeit their right to assert 

certain defenses. Compare Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 

490, 496 (5th Cir. 2015) (defaulting defendant deemed to admit complaint’s 

well-pleaded factual allegations but not its ill-pleaded factual allegations or its 

conclusions of law), and Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 

F.2d 1200, 1206 (5th Cir. 1975) (same), with Jackson v. FIE Corp., 302 F.3d 

515, 523 (5th Cir. 2002) (lack of personal jurisdiction an available defense). 

Assuming arguendo that defaulting defendants cannot raise a forum non 

conveniens defense, however, a defendant most certainly can move for a forum 

non conveniens dismissal after its default is set aside, and we find no support 

for Moreno’s contention that a district court cannot set aside a default and 

dispose of a newly ripened forum non conveniens motion in the same order.

As authority, Moreno principally relies on Tyco Fire & Sec., LLC v. 

Alocer, 218 F. App’x 860 (11th Cir. 2007). Contrary to Moreno’s suggestion, 

the Eleventh Circuit in Alocer did not confront the issue that she raises in her 

appeal. In Alocer, the Eleventh Circuit examined a district court’s order that 

granted a defendant’s motion to dismiss on the basis of forum non conveniens, 

but unlike in this case, the order had simultaneously upheld an entry of default 

against the defendant. Alocer, 218 F. App’x at 861. Noting that a defendant 

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in default has forfeited procedural defenses such as forum non conveniens, the 

Eleventh Circuit concluded that the “rulings in the district court’s order [are] 

internally inconsistent.” Id. at 864. The court, therefore, vacated the order 

and remanded for the district court to determine whether to set aside the 

default, instructing that only if the default were set aside should the district 

court “then reconsider [the defendant’s] motion to dismiss for forum non 

conveniens.” Id. Alocer stands only for the proposition that a district court 

cannot grant a defaulting defendant’s forum non conveniens motion while at 

the same time upholding the entry of default—the opinion does not address 

whether a district court may set aside a defendant’s default and rule on its 

forum non conveniens motion in the same order.

Moreno also cites a magistrate judge’s order directing that, should a 

defendant’s default be set aside, the plaintiff would have ten days to respond 

to the defendant’s forum non conveniens motion. See McCants v. Ala.-W. Fla. 

Conference of United Methodist Church, Inc., No. CA 08-0686–KD–C, 2009 WL 

735198, at *1 (S.D. Ala. Mar. 18, 2009). While this order may model a “best 

practices” approach, it does not cite any precedent requiring such an approach. 

We cannot locate any, either. Presented with no authority to the contrary, we 

decline to hold that a district court is precluded from setting aside a default 

and granting a forum non conveniens motion in a single order. 

Even assuming arguendo that the district court procedurally erred and 

should have given notice that it would rule on the merits of LG USA’s forum 

non conveniens motion, Moreno—a Mexican citizen injured in Mexico in the 

course of her employment with a Mexican company—cannot demonstrate

prejudice from the error because she has not shown that she would succeed in 

preventing dismissal if given another opportunity to respond to the motion. 

Before the district court, Moreno presented no argument against the merits of 

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LG USA’s forum non conveniens motion. Moreno also fails to show prejudice 

on appeal because her only argument against dismissal—that Mexico is not an 

adequate available forum due to its “outdated statutory wage figures” and 

comparatively harsh damages caps—is foreclosed by precedent. 

The doctrine of forum non conveniens allows a court to decline the 

exercise of jurisdiction when the case may be heard in an alternative forum. 

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). “The defendant carries the 

burden of persuading the court that a lawsuit should be dismissed on forum 

non conveniens grounds.” DTEX, 508 F.3d at 794. To invoke the doctrine, 

courts must determine that an alternative forum exists and then must consider 

both the “private interest of the litigant” and “[f]actors of public interest.” 

Gilbert, 330 U.S. at 508. Under the doctrine, “dismissal will ordinarily be 

appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden 

on the defendant or the court, and where the plaintiff is unable to offer any 

specific reasons of convenience supporting his choice.” Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 249 (1981). In particular, “dismissal may be warranted 

where a plaintiff chooses a particular forum, not because it is convenient, but 

solely in order to harass the defendant or take advantage of favorable law.” Id.

at 249 n.15. 

The district court did not abuse its discretion by granting a forum non 

conveniens dismissal in this case, and Moreno has presented no meritorious 

argument demonstrating that the result would be any different were she 

afforded another opportunity to oppose LG USA’s motion. “We have held in 

numerous cases that Mexico is an available forum for tort suits against a 

defendant that is willing to submit to jurisdiction there,” and “[t]hese many 

decisions create a nearly airtight presumption that Mexico is an available 

forum.” In re Ford Motor Co., 591 F.3d 406, 412, 413 (5th Cir. 2009). In light 

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of this strong presumption, district courts are permitted to presume that 

Mexico is still an available forum unless the plaintiff “can show evidence 

distinguishing [his] case from our precedent, an order from a Mexican court 

dismissing [his] exact case for lack of jurisdiction, or reliable evidence of some 

subsequent change in Mexican law that calls our earlier determinations into 

serious question.” Id. at 413 (emphasis in original). 

Moreno never made any such showing in this case, either before the 

district court or before this court on appeal. Therefore, Mexico is an alternative 

available forum. And while Moreno complains on appeal that Mexican tort law 

limits the amount of damages that she can recover, we have previously held 

that this aspect of Mexican law does not render inadequate the alternative 

forum that its courts provide. See Saqui v. Pride Cent. Am., LLC, 595 F.3d 

206, 212 (5th Cir. 2010) (holding that Mexico is an adequate forum even though 

the plaintiff argued that “the amount of damages would be more limited under 

Mexican as opposed to American law”); DTEX, 508 F.3d at 796 (“‘Adequacy’ 

does not require that the alternative forum provide the same relief as an 

American court.”); Vasquez, 325 F.3d at 671–72 (rejecting the argument that 

Mexico’s “severe damage caps” render it inadequate as a forum for relief); see 

also Piper Aircraft Co., 454 U.S. at 249 n.15 (“[D]ismissal may be warranted 

where a plaintiff chooses a particular forum, not because it is convenient, but 

solely in order to . . . take advantage of favorable law.”).

Even ignoring the presumption, the private and public interest factors 

weigh heavily in favor of dismissal here. The “private interest” factors include:

(i) the relative ease of access to sources of proof; (ii) availability of 

compulsory process for attendance of unwilling, and the cost of 

obtaining attendance of willing, witnesses; (iii) possibility of view 

of [the] premises, if view would be appropriate to the action; (iv) 

all other practical problems that make trial of a case easy, 

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expeditious and inexpensive . . . enforceability of judgment[; and 

whether] the plaintiff [has sought to] “vex,” “harass,” or “oppress” 

the defendant.

DTEX, 508 F.3d at 794 (quoting Gilbert, 330 U.S. at 508). The “public interest” 

factors include:

(i) the administrative difficulties flowing from court congestion; (ii) 

the local interest in having localized controversies resolved at 

home; (iii) the interest in having a the [sic] trial of a diversity case 

in a forum that is familiar with the law that must govern the 

action; (iv) the avoidance of unnecessary problems in conflicts of 

law, or in application of foreign law; and (v) the unfairness of 

burdening citizens in an unrelated forum with jury duty.

DTEX, 508 F.3d at 794. 

Moreno is a Mexican citizen and resident. She does not contest that her 

alleged injury occurred in Mexico during the course of her employment with a 

Mexican company, while working in a facility owned and operated by other 

Mexican entities. It is also uncontested that the machine that allegedly caused 

her injury is owned, operated, and maintained by a Mexican company. Under 

these circumstances, all of the physical evidence and the majority (if not 

totality) of material witnesses will be located in Mexico. “Federal courts have 

no compulsory process over Mexican citizens,” Vaquez, 325 F.3d at 673, and 

the cost of obtaining the attendance of willing witnesses would be much higher 

in Moreno’s chosen forum. If a view of the premises were appropriate to the 

action, such viewing would be feasible only if the trial were held in a Mexican 

court. In addition, conducting a trial in the United States would likely require 

the added expense of translating reports and witness testimony. Finally, 

Mexico has an interest in having localized controversies such as this one 

resolved in its own courts, and the federal courts have an interest in avoiding 

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possible conflicts with—and application of—foreign law, and in not burdening 

United States citizens with jury duty in an unrelated forum. The private and 

public interest factors weigh heavily in favor of dismissal, and Moreno has 

failed to show how the balance would tip differently were she given another 

chance to oppose LG USA’s motion. See Atl. Richfield, 546 F.2d at 651 (party 

challenging “the procedural propriety of the district court’s entry of final 

judgment” must show “prejudice from the lack of notice [that the district court 

would rule on the merits]”).

In sum, Moreno has failed to demonstrate that the district court erred 

by setting aside LG USA’s default and granting its forum non conveniens

motion in a single order. Moreover, even assuming that the district court 

committed a procedural error by failing to give notice that it would rule on LG 

USA’s motion, Moreno cannot demonstrate that any such error prejudiced her 

because she has presented no meritorious argument against dismissal.

IV.

In light of the foregoing discussion, we AFFIRM.

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