United States Court of Appeals

Fifth Circuit

FILED

April 4, 2003

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 01-41161

_______________

MARIA O. VASQUEZ, ET AL.,

Plaintiffs-Appellants,

ALEJANDRA MARLEN R. DELUNA,

 Intervenor Plaintiff-Appellant,

VERSUS

BRIDGESTONE/FIRESTONE, INC., ET AL.,

 Defendants-Inervenor

Defendants- Appellees.

* * * * * * * * * * * * * * * * * * *
2

_______________

m 02-40053

_______________

MARIA O. VASQUEZ, ET AL.,

Plaintiffs-Appellants,

ALEJANDRA MARLEN R. DELUNA,

Intervenor Plaintiff-Appellant,

DANA R. ALLISON, ET AL.,

Appellants,

VERSUS

BRIDGESTONE/FIRESTONE, INC., ET AL.

Defendants-Appellees,

_________________________

Appeals from the United States District Court

for the Eastern District of Texas

_________________________

Before GARWOOD, SMITH, and BARKSDALE,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Car crash victims’ survivors sued the tire

manufacturer and other defendants in state

court. After defendants removed to federal

court, the district court dismissed on grounds

of forum non conveniens (“f.n.c.”), finding

Mexico to be the more convenient forum. The

court also enjoined plaintiffs from pursuing
3

any claim against defendants in Texas state

court or federal court. We vacate the f.n.c.

dismissal so that a return jurisdiction clause

maybe added, and we order that the injunction

be modified to conform to the Anti-Injunction

Act, 28 U.S.C. § 2283. The dismissal and

injunction are otherwise free of error.

I.

This action arises from an automobile accident in the state of Nuevo Leon, Mexico,

that killed six passengers, all Mexican citizens.

Plaintiffs and intervenors, who are family

members of the decedents, allege that the

vehicle and one of itstires were defective, that

the vehicle was improperly maintained, and

that the driver was careless. Plaintiffs first

filed wrongful death and survival claims

against defendantsBridgestone/Firestone,Inc.

(“Bridgestone”), GeneralMotorsCorporation

(“General Motors”), Lucent Technologies,

Inc., and Lucent Technologies Maquiladoras,

Inc.,1in federal district court in Brownsville,

Texas (“Vasquez I”). That suit was dismissed

for lack of diversity jurisdiction.

The instant case (“Vasquez II”) wasfiled in

OrangeCounty, Texas, and removed to federal

district court in Beaumont, Texas. That court

dismissed on grounds off.n.c., concluding that

the dispute should be heard in Mexico. The

location of the accident, the sources of proof,

plaintiffs’ home, and the lack of local interest

were factors that the court found favored

Mexico. The court also determined that

Mexican law would govern. The court dismissed with prejudice, noting in its

memorandum opinion that “[a] judgment of

dismissal under forum non conveniens here

should act to preclude a future lawsuit brought

elsewhere in this country.” 

Before the court dismissed Vasquez II,

plaintiffs filed a separate state court suit in

Cameron County, Texas (“Vasquez III”).

They initially were represented by different

counsel before the dismissal of Vasquez II; at

that time, counsel of record filed an amended

petition and a petition in intervention on plaintiffs’ behalf. Vasquez III was removed to federal court and ultimately dismissed by stipulation.2

 

Following the f.n.c. dismissal in VasquezII,

plaintiffs also sued in Webb County, Texas.

This suit, Vasquez IV, named five defendants

not named in the three previous suits:

Bridgestone Corporation, Bridgestone/Firestone de Mexico, S.A., Rudolph Miles and

Sons, Inc., Dicex International, Inc., and the

driver of the vehicle, Villanueva. Vasquez IV

also included two new plaintiffs, the parents of

one of the deceased crash victims, Ivonne

Juarez. After defendants removed VasquezIV

to federal court, the Vasquez II court sua

sponte issued a temporary restraining order

barring plaintiffs and their attorneys from arguing their pending motion to remand and

from prosecuting any new suits. 

The Vasquez II court later issued a

permanent injunction that prohibited

plaintiffs, their attorneys, their agents,

and all persons acting on behalf of plaintiffs, or in concert with any and all of the

plaintiffs or their attorneys from

prosecuting, filing, or pursuing any suit

1 Lucent Technologies, Inc., and Lucent

Technologies Maquiladoras, Inc., have since settled

and are no longer parties to this appeal.

2 The Vasquez II court found that Vasquez III

was “an attempt by the Plaintiffs to relitigate this

case.”
4

or case or cause of action against the

defendants herein in any district court of

the State of Texas, and any United

States District Court in the State ofTexas against the said movants.

The court reasoned that the All Writs Act, 28

U.S.C. § 1651(a), permitted it to protect the

finality of its f.n.c. dismissal. Plaintiffs argue

that the injunction violatesthe Anti-Injunction

Act, specifically that it does not fall under the

Act’s relitigation exception. This appeal consolidates plaintiffs’ challenge to the VasquezII

court’s dismissaland the permanent injunction.

II.

Federal courts apply the federal version of

f.n.c. in resolving a motion to dismiss where

the alternative forum is a foreign tribunal. De

Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th

Cir. 1993). We review an f.n.c. dismissal for

abuse of discretion. Gonzalez v. Chrysler

Corp., 301 F.3d 377, 379 (5th Cir. 2002),

petition for cert. filed, 71 U.S.L.W. 3489 (Jan.

7, 2003) (No. 02-1044). To obtain an f.n.c.

dismissal, a party must demonstrate (1) the

existence of an available and adequate

alternative forum and (2) that the balance of

relevant private and public interest factors

favor dismissal. Alpine View Co. v. Atlas

Copco AB, 205 F.3d 208, 221-22 (5th Cir.

2000). Under federal f.n.c. principles, the

court properly found that Mexico is the more

convenient forum.

A.

An alternative forumis considered available

if the entire case and all parties can come

within its jurisdiction.3 The district court

found that defendants’stipulation to submit to

a Mexican court’s jurisdiction in the state of

Nuevo Leon made Mexico an available forum.

Plaintiffsnow argue that because Mexican federal law provides greater damages than does

the law of Nuevo Leon, defendants should

have been required to submit to the jurisdiction of a Mexican federal court in Mexico

City. Forum availability and adequacy are separate inquiries, however, so we reject

plaintiffs’ attempt to bootstrap the two.

Indeed, plaintiffs do not dispute that an

available Mexican forum existsin the courts of

Nuevo Leon.

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

an American court.” Gonzalez, 301 F.3d at

379-80 (citation and internal quotation marks

omitted). In Gonzalez, we rejected the

plaintiffs’ contention that a foreign

jurisdiction’s decision to limit damages and

limit the availability of strict liabilitySSeven to

the point at which the lawsuit ceases to

become economically viableSSsomehow

renders that jurisdiction inadequate. Id. at

381. Importantly, Gonzalez also involved

Mexican plaintiffs suing an American vehicle

manufacturer over a car accident in Mexico.

Id. at 383. The fact that Mexico provides a

wrongful death cause of action, albeit with

severe damage caps,4 makes the country an

3

In re Air Crash Disaster Near New Orleans,

La. on July 9, 1982, 821 F.2d 1147, 1165 (5thCir.

(continued...)

3

(...continued)

1987) (en banc), vacated on other grounds sub

nom. Pan Am. World Airways, Inc. v. Lopez, 490

U.S. 1032 (1989).

4 Defendants’ expert stated that Nuevo Leon

lawlimits wrongful death liability to approximately

(continued...)
5

adequate forum. Piper Aircraft Co. v. Reyno,

454 U.S. 235, 255 (1981).

B.

Once a court determinesthat there is an adequate alternative forum, it must balance the

relevant private and public interest factors. Id.

at 254-55. Private interest factors include

the relative ease of access to sources of

proof; the availability of compulsory

process for attendance of unwilling, and

the cost of obtaining attendance of

willing, witnesses; the possibilityofview

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.

McLennan v. Am. Eurocopter Corp., Inc., 245

F.3d 403, 424 (5th Cir. 2001) (internal

quotation marks and citation omitted). In

Piper, the Court stated that “there is ordinarily

a strong presumption in favor of the plaintiff’s

choice of forum, which may be overcome only

when the private and public factors clearly

point towards trial in the alternative forum.”

454 U.S. at 255. Still, the district court

determined, consistently with Piper, that

because plaintiffs are residents of a foreign

country, their forum choice should be

accorded less deference. Id. at 255-56. 

Plaintiffs contend the court erred, because

a treaty between the United States and

Mexico, the International Covenant of Civil

and PoliticalRights, entitles Mexican plaintiffs

to the same deference as American citizens,

only with the understanding that suing in the

United States may be less convenient.5 Article

14(1) of the treaty states, inter alia: “All personsshall be equal before the courts and tribunals. In the determination of . . . rights and

obligations in a suit at law, everyone shall be

entitled to a fair and public hearing by a

competent, independent, and impartial

tribunal.”6 We need not decide this issue,

however, because the private and public

factors “clearly point towards” trial in

Mexico.7 Piper, 454 U.S. at 255.

Analyzing the private factors, the court correctly determined that trial should be held in

Mexico. The court emphasized that plaintiffs,

the driver of the vehicle, and all decedents are

Mexican citizens. In addition, the vehicle and

tiresweremanufactured, purchased, andmain4

(...continued)

$5,700 plus an unspecified amount of “moral

damages” designed to compensate for humiliation,

injury to reputation, and mental anguish. 

5 Plaintiffs cite In re Bridgestone/Firestone,

Inc. Tires Products Liability Litig., 190 F. Supp.

2d 1125, 1136 (S.D. Ind. 2002), which held that

the Treaty of Peace, Friendship, Navigation and

Commerce between the United States and Venezuela gives “expatriate U.S. nationals and treaty

nationals residing in their home countries . . . the

same preference of their choice of forum, with the

consideration that suing in a United States forum

while residing in a foreign country is less likely to

be convenient.” Plaintiffs, however, invoke the

International Covenant on Civil and Political

Rights, a separate treaty, so it is hard to see how In

re Bridgestone/Firestone is relevant.

6

International Covenant on Civil and Political

Rights, Dec. 16, 1966, art. 14(1), 999 U.N.T.S.

171.

7

See James v. Gulf Int’l Marine Corp., 777

F.2d 193, 194 n.2 (5th Cir. 1985) (stating that

even where courts have interpreted forum-access

treaty provisions broadly, they have “still

dismissed suits where the balance weighs in favor

of another forum”). 
6

tained in Mexico. The vehicle had a Mexican

owner, and the trip took place entirely in

Mexico. All the physical evidence and medical

reports are in Mexico; conducting trial in the

United States would require the translation of

numerous reports and witness testimony.

Federal courts have no power of compulsory

process over Mexican citizens, including the

surviving driver and passenger, police, and

mechanics who serviced and maintained the

vehicle.

Plaintiffs point out that documents relating

to the design and manufacture of the vehicle’s

tires are located in the United States and must

be translated into Spanish. They also aver that

the court’s refusal to permit additional

discovery prevented themfromdemonstrating

the exact role of General Motors and

Bridgestone in designing and fabricating their

products.8 Yet, even without the aid of

additional discovery, plaintiffs argued in the

district court that the design information is

located in the United States, so we do not see

how they have been prejudiced.9 

Assuming arguendo that all information relating to the design and manufacture of the

tires and vehicle is located in the United

States, we still find the court’s analysis

correct. The tires and vehicle were

manufactured and sold inMexico;the vehicle’s

servicing records and the dri ver’s

recordsSSboth vital to plaintiffs’ alternative

theories of liabilitySSare also located there.

C.

Plaintiffs maintain that the court erred in

applying the relevant public f.n.c. factors,

which are

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. 

McLennan, 245 F.3d at 424 (internal

quotation marks and citation omitted). The

court determined these factors favor trial in

Mexico, because the case would overburden

its already overcrowded docket, Texas has

little local interest in the outcome, and

Mexican law should govern the controversy.

Plaintiffs assert the location of Bridgestone’s main plant in Orange County, Texas,

8 Again, plaintiffs’ reliance on In re Bridgestone/Firestone Tires Products Liability Litig.,

190 F. Supp. 2d 1125, is problematic. Although,

in that case, the multi-district litigation court denied the defendant’s motion to dismiss on grounds

of f.n.c., some of the vehicles and tires, unlike the

situation in this case, were manufactured in the

United States. Id. at 1139-40. More importantly,

the suit involved traffic accidents in Colombia, not

Mexico; that country’s procedure rules would have

required American deponents to travel there to

ratify their testimony. Id. at 1138. Finally, the

court believed that political unrest could make trial

in Colombia difficult. Id. at 1143-44.

9

See HC Gun & Knife Shows, Inc. v. City of

Houston, 201 F.3d 544, 549 (5th Cir. 2000) (stat-

(continued...)

9

(...continued)

ing that a discovery ruling should be reversed only

if the complaining party demonstrates that it was

prejudiced by the ruling).
7

refutesthe court’s conclusion that there islittle

local interest. In fact, the plant that plaintiffs

reference is not the company’s principal place

of business, nor does it even produce tires.

Conversely, Mexico has an interest in protecting its own citizens from defective products acquired in Mexico and causing injury

there.10 

The linchpin of plaintiff’s argumentSSthat

the alleged wrongful act was the original design ofthe vehicle and tiresSSreaches back too

far in the accident’s causal chain. Identifying

the situs of the wrongful conduct as an

American designer’s drawing board ignores

the production, sale, and alleged failure of the

product, which all occurred in Mexico. If

accepted, plaintiffs’ argument would curtail

the rights of foreign governments to regulate

their internal economies and threaten to engulf

American courts with foreign claims, Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

In addition, plaintiffs’ attempt to place the

alleged wrongful conduct in the United States

ignores their own alternative liability theories

that impropermaintenance and careless driving

caused the accident. 

Plaintiffs are permitted to plead in the alternative. FED. R. CIV. P. 8(e)(2). For purposes of f.n.c., however, they cannot present

only one of their multiple liability theories for

the sole purpose of gaining a favorable forum.

For similar reasons, plaintiffs’ contention

that the court erred in its choice-of-law

determination is unavailing.11 A federal court

sitting in diversity applies the conflict-of-laws

rules of the state in which it sits. Klaxon Co.

v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496

(1941). Texas applies the “most significant relationship” test, Gutierrez v. Collins, 583

S.W.2d 312, 318-19 (Tex. 1979), which considers various contacts: the place where the injury occurred, the place where the injury causing conduct occurred, the parties’ residence,

and the place where the relationship, if any,

between the parties is centered.12 

Even if the design of the tires and vehicles

is characterized as the conduct causing injury,

the aggregate of other specific contactsfavors

application of Mexican law. As the court recognized, allthe decedents and plaintiffs are citizens of Mexico, the accident and subsequent

investigation took place in Mexico, and the

vehicle and tires were manufactured and

purchased there.

The most significant relationship test further requiresthat the specific contacts be evaluated in light of policy considerations. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414,

10 See Delgado v. Shell Oil Co., 231 F.3d 165,

181 (5th Cir. 2000) (“[T]hose foreign countries

[where the plaintiffs hailed from and had suffered

injury] obviously have an interest in protecting the

rights and welfare of their citizens.”); Kamel v.

Hill-Rom Co., 108 F.3d 799, 804-05 (7th Cir.

1997) (noting that Indiana residents “have a mere

passing interest” where a foreign plaintiffisinjured

in a foreign land); Torreblanca de Aguilar v.

Boeing Co., 806 F. Supp. 139, 144 (E.D. Tex.

1992) (stating that Mexico has a “paramount interest” in resolving claims brought by Mexican

plaintiffs arising from an air crash in Mexico that

was investigated by Mexican authorities). 

11 We review a court’s choice-of-law

determination de novo. Spence v. Glock, Inc., 227

F.3d 308, 311 (5th Cir. 2000).

12 RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 145 (1971). 
8

421 (Tex. 1984). These considerations are

(a) the needs of the interstate and

international systems; (b) the relevant

policies of the forum; (c) the relevant

policies of other interested states and the

relative interests of those states in the

determination of the particular issue;

(d) the protection of justified

expectations; (e) the basic policies

underlying the particular field of law; (f)

certainty, predictability and uniformity

of result; and (g) ease in the

determination and application of the law

to be applied.

RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 6 (1971). A proper choice-of-law

“achieve[s] the best possible accommodation”

of both nations’ policies. Id. cmt. f. 

We are mindful of the disparate levels of

wrongfuldeathdamages provided under Texas

and Mexican law and the incentive for plaintiffsto sue in the United States. Given that all

decedents and plaintiffs are Mexican, however,

there is little justification for applying Texas

law, which seeks to “protect[] the rights of its

citizens to adequate compensation.”13 Were

we to apply Texas law as a means of righting

any perceived inequities of Mexican law, we

would be undercutting Mexico’s right to

create a hospitable climate for investment.14

Uniformity, predictability, and accommodation

of the competing policies of the two nations

favor applying Mexican law.

D.

There is no guarantee that Nuevo Leon will

remain an available forum or that defendants

will submit to its jurisdiction. A return

jurisdiction clause remedies this concern by

permitting parties to return to the dismissing

court should the lawsuit become impossible in

the foreign forum. The “failure to include a

return jurisdiction clause in an f.n.c. dismissal

constitutes a perse abuse of discretion.” Robinson v. TCI/US West Communications, Inc.,

117 F.3d 900, 907-08 (5th Cir. 1997). As we

said in In re Air Crash Disaster, 821 F.2d at

1166:

If the district court decides that the

[public and private interest factors] favor in a foreign forum, it must finally ensure that a plaintiff can reinstate his suit

in the alternative forum without undue

inconvenience or prejudice and that if

the defendant obstructs such

reinstatement in the alternative forum

that the plaintiff may return to the

American forum.

The court did not include a return jurisdiction

clause in its dismissal order, so we vacate and

remand with instructions that one be added.

13 See Trailways, Inc. v. Clark, 794 S.W.2d

479, 486 (Tex. App.SSCorpus Christi 1990, writ

denied) (emphasis added); see also Baird v. Bell

Helicopter Textron, 491 F. Supp. 1129, 1150-51

(N.D. Tex. 1980).

14 See Gonzalez, 301 F.3d at 381-82 (“In

making this policy choice, theMexican government

(continued...)

14(...continued)

has resolved a trade-off among the competing

objectives and costs of tort law, involving interests

of victims, of consumers, of manufacturers, and of

various other economic and cultural values. In

resolving this trade-off, the Mexican people,

through their duly-elected lawmakers, have decided

to limit tort damages. . . .”).
9

III.

The district court halted plaintiffs’ “judicial

hopscotch” by invoking the All Writs Act,

which authorizes federal courts “to issue all

writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the

usages and principles of law.” 28 U.S.C.

§ 1651. This power dovetails with the relitigation exception to the Anti-Injunction Act,

which, although generally prohibiting federal

courts from enjoining state proceedings, permits a court to enjoin a state court “where necessary in aid of itsjurisdiction, or to protect or

effectuate its judgments.” 28 U.S.C. § 2283.

The relitigation exception is grounded in

principles ofres judicata and collateral estoppel. Chick Kam Choo v. Exxon Corp., 486

U.S. 140, 147 (1988). The test for the

relitigation exception is the same test used to

determine claim preclusion or res judicata:

“(1) the parties in a later action must be

identical to (or at least in privity with) the

parties in a prior action; (2) the judgment in

the prior action must have been rendered by a

court of competent jurisdiction; (3) the prior

action must have concluded with a final

judgment on the merits; and (4) the same claim

or cause of action must be involved in both

suits.” Regions Bank v. Rivet, 224 F.3d 483,

488 (5th Cir. 2000) (internal quotation marks

and citation omitted); N.Y. Life Ins. Co. v.

Gillispie, 203 F.3d 384, 387 (5th Cir. 2000).

In Next Level Communications LP v. DSC

Communications Corp., 179 F.3d 244, 250

(5th Cir. 1999), we recognized that the

relitigation exception also applies where issue

preclusion, or collateral estoppel, exists.15 The

district court sought to protect its f.n.c. dismissalSSa judgmentSSso we must decide

whether it is res judicata for purposes of the

relitigation exception.

The permanent injunction prohibited

plaintiffs and counsel from pursuing “any suit

or cause of action against defendants” in any

Texas state or federal court.16 The district

court determined that an f.n.c. dismissal is entitled to claim-preclusive effect as a final judgment on the merits, finding also that Texas

state courts would apply the same choice-oflaw rules and “virtually the same” f.n.c. test as

a federal court. We conclude that an f.n.c. dismissal is not a decision on the merits, so we direct the court to modify its injunction to prevent plaintiffs from relitigating only the

choice-of-law determination.

Plaintiffs contend the injunction is

inappropriate because defendants failed to

15 “Collateral estoppel exists where: (1) the issue at stake is identical to the one involved in the

(continued...)

15(...continued)

prior action; (2) the issue was actually litigated in

the prior action; (3) the determination of the issue

in the prior action was a necessary part of the judgment in that earlier action; and (4) the legal

standard used to assess the issue is the same in

both proceedings.” Next Level, 179 F.3d at 250

(citations and internal quotation marks omitted).

16 The permanent injunction order broadly forbids plaintiffs from pursuing “any suit or cause of

action” against defendants; only the memorandum

opinion and temporary restraining order limit relitigation of claims “arising from the August 12,

1999 accident.” Plaintiffs do not attack the

permanent injunction order on this technicality,

however, so neither will we. See Royal Ins. Co. v.

Quinn-L Capital Corp., 960 F.2d 1286, 1294 (5th

Cir. 1992) (“We thus reject appellants’

construction of the declaratory judgment as

artificial and unnecessarily formalistic.”).
10

demonstrate imminent harm or the lack of an

adequate remedy. Rondeau v. Mosinee Paper

Corp., 422 U.S. 49, 57 (1975). Plaintiffs argue that pleas of res judicata, where appropriate, are sufficient to protect the Vasquez

II court’s dismissal. The court’s finding that

Vasquez IV was plaintiffs’ second attempt to

relitigate its “final judgment” was sufficient,

however, to enjoin further litigation. Quintero

v. Klaveness Ship Lines, 914 F.2d 717, 721

(5th Cir. 1990); Next Level, 179 F.3d at 257.

In Quintero, 914 F.2d at 720-21, we

affirmed a decision to enforce the principles of

res judicata in the first instance by enjoining

state court relitigation of a choice-of-law determination. Though we conclude that the injunctionimpermissiblyprohibits plaintiffsfrom

suing in state court, the district court did not

err by invoking the relitigation exception,

which seeks to prevent the wasteful and

harassing revisiting of previously decided

matters.

A.

At least where there is claim preclusion, the

relitigation exception applies only to the actual

parties of the first proceeding and those in

privity with them. Rivet, 224 F.3d at 488.

The permanent injunction designated

“plaintiffs, their attorneys, their agents, and all

persons acting on behalf of plaintiffs, or in

concert with any and all of the plaintiffs or

their attorneys,” as well as the moving

defendants. Vasquez IV contains two new

plaintiffsSSthe parents of decedent Ivonne

JuarezSSand five new defendants not named in

Vasquez II. 

Privity has been described as nothing more

than a “legal conclusion that the relationship

between the one who is a party on the record

and the non-party issufficiently close to afford

application of the principle of preclusion.”

SouthwestAirlines,Inc. v. TexasInt’lAirlines,

Inc., 546 F.2d 84, 95 (5th Cir. 1977) (citation

omitted). Privity exists where, for example, a

party’s claim is derivative of the original

party’s claim.17

Ivonne Juarez’s estate representative, Jessica Juarez, is a party in Vasquez II, but her

parents did not join the litigation until the advent of Vasquez IV. Given that both seek

wrongful death claims on behalf of Ivonne

Juarez and are represented by the same

counsel, they are in privity with one another. 

Our conclusion is bolstered by the fact that

plaintiffs’ counsel named Juarez’s parents as

parties in two motions filed in Vasquez II; the

parents also submitted a list of all companies

sued previously to the Vasquez II court. The

court’s reference to all parties acting “on behalf of” or “in concert with” plaintiffs means

that Juarez’s parents were among those

properly enjoined.

The five new defendants, on the other hand,

are not proper subjects of the injunction. The

court enjoined suit against only the moving

defendants and did not make any findings asto

17 See Terrell v. DeConna, 877 F.2d 1267,

1270-73 (5th Cir. 1989) (holding that a wife bringing a loss-of-consortium claim cannot relitigate

issues that had been decided in her husband’s

personal injury suit); Meador v. Oryz Energy Co.,

87 F. Supp. 2d 658, 665 (E.D. Tex. 2000) (finding

that where two estate beneficiaries were “in privity

with their common ancestor for a claim belonging

to that ancestor, it follows that they are also in

privity with each other”).
11

privity. Quintero, 914 F.2d at 721.18 Though

it is arguable that plaintiffs could have sued

these five defendantsin the original action, the

relitigation exception, as noted, requires that

the claims actually be litigated in the first proceeding. Hatcher, 152 F.3d at 544. Even if

the injunction otherwise falls within the relitigation exception, its express terms prevent

enjoining litigation against non-Vasquez II

defendants.

B.

An f.n.c. dismissal, based on a doctrine “of

procedure rather than of substance,” Am.

Dredging Co. v. Miller, 510 U.S. 443, 453

(1994), does not resolve the substantivemerits

and therefore falls outside the relitigation exception.19 In Chick Kam Choo, 486 U.S. at

142-43, aSingapore resident brought maritime

and Texasstate law claimsin federal court. In

granting defendant’s motion to dismiss on

grounds of f.n.c., the district court found that

Singapore law governed. The court enjoined

the plaintiff after she refiled the Texas state

law claimand brought a new claimunder Singapore law in Texas state court. 

The Supreme Court vacated the injunction

so far as it prohibited litigating the Singapore

law claim, noting that the f.n.c. dismissal “did

not resolve the merits of this claim.” Id. at

148. In other words, instead of the substantive

merits, “the only issue decided by the District

Court was that petitioner’s claims should be

dismissed under the federal forum non conveniens doctrine.” Id.

Rule 41(b) states that an order of dismissal

“operates as an adjudication on the merits”

unless the court states otherwise or the dismissal isfor lack ofjurisdiction, improper venue, or failure to join a party under Rule 19.

FED. R. CIV. P. 41(b).20 Because an f.n.c.

dismissal involves the court’s “declin[ing] to

exercise itsjurisdiction, even though the court

hasjurisdiction and venue,” Piper, 454 U.S. at

250, it does fall under one of the three

exceptionsSSlack of jurisdiction, lack of

venue,21 or failure to join a party. Nor did the

18 See Hatcher v. Avis Rent-A-Car Sys., Inc.,

152 F.3d 540, 544 (5th Cir. 1998) (“Since these

individuals were not named in the federal court action, no claimagainst themwas actually decided by

the federal court.”).

19 Baris v. Sulpicio Lines, Inc., 74 F.3d 567,

572-73 (5th Cir.), vacated, 74 F.3d 575 (1996),

reh’g en banc, 101 F.3d 367 (1996). The panel

opinion inBaris was vacated; an equally divided en

banc court affirmed the court’s enjoining of relitigation following the district court’s f.n.c. dismissal.

20 FED. R. CIV. P. 41(b) states:

 For failure of the plaintiff to prosecute or

to comply with these rules or any order of

court, a defendant may move for dismissal

of an action or of any claim against the

defendant. Unless the court in its order for

dismissal otherwise specifies, a dismissal

under thissubdivision and any dismissal not

provided for in this rule, other than a

dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication

upon the merits.

21 Although theCourt has observed that f.n.c. is

a “supervening venue provision,” Am. Dredging,

510 U.S. at 453, there is a long-standing distinction

between a 28 U.S.C. § 1404(a) f.n.c. transfer and

an “improper forum,” Tel-Phonic Servs. v. TBS

Int’l, Inc., 975 F.2d 1134, 1141 (5th Cir. 1992).

This, we feel, warrants a distinction between an

(continued...)
12

district court state that the dismissal was

involuntary; the court instead stated that by

dismissing with prejudice, it sought to

preclude plaintiffsfromrelitigating their claims

“elsewhere in this country.” 

Previously, rule 41(b)’s effect regarding

claim preclusion was questioned because of

the limited enumerated exceptions to its

default rule that judgments generally be

deemed “on the merits.” 18 CHARLES ALAN

WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 4435, at 140 (2d ed. 2002).

Many types of dismissals “do not seem to fall

within the categories‘provided for in thisrule’

and yet clearly should notSSand do

notSSoperate as an adjudication that precludes

a second action on the same claim.” Id.

In Semtek Int’l, Inc. v. Lockheed Martin

Corp., 531 U.S. 497 (2001), the Court reigned

in rule 41(b) as a determinant of claimpreclusion, recognizing that the meaning of

“judgment on the merits” has changed over

time and “has come to be applied to some

judgments” (like the instant district court’s

f.n.c. dismissal) “that do not pass upon the

merits of a claim and hence do not (in many

jurisdictions) entail claim-preclusive effect.”

Id. at 502. The Court determined that rule

41(b) primarily “relatesto the dismissing court

itself.” That is, an “adjudication on the merits”

bars refiling of the same claim in the same

court but does not establish claim preclusion.

Id. at 505-06. Semtek held that when a

diversity court dismisses a claim on state

substantive law grounds, the preclusive effect

of the judgment is measured not by rule 41(b),

but by the preclusion law of the state in which

the court sits. 

The district court, although exercising diversity jurisdiction, dismissed on federal procedural grounds, thus distinguishing Semtek.

And despite rule 41(b)’s enabling the court to

prevent relitigation of federal f.n.c. principles

in a Texas federal court,22 we cannot, after

Semtek, look to the rule as a guide to the

judgment’s claim-preclusive effect elsewhere.

Semtek statesthat rule 41(b) “would be a highly peculiar context in which to announce a federally prescribed rule on the complex question

of claim preclusion, saying in effect, ‘All

federal dismissals (with three specified

exceptions) preclude suit elsewhere, unlessthe

court otherwise specifies.’” Id. at 503. Also,

permitting a rule of civil procedure to control

the effect given a federal judgment by a state

court arguably violates the jurisdictional limitation of the Rules Enabling Act.23

 Id.

Instead, we look to the longstanding rule

that “federal common law governs the claimpreclusive effect of a dismissal by a federal

court sitting in diversity.” Id. at 508 (citation

omitted). Fortunately, Chick Kam Choo,

21(...continued)

f.n.c. dismissal and an “improper venue” dismissal.

22 Our statement in Quintero that an f.n.c. dismissalmay bedesignated “‘with prejudice,’so long

as the plaintiff’s ability to reinstate the action is

otherwise adequately protected,” means only that a

court may prevent relitigation of the federal f.n.c.

issue. 914 F.2d at 722. So far as Quintero may

be read as permitting an f.n.c. dismissal to be

afforded a broader preclusive effect, that case dealt

only with an injunction barring relitigation of a

choice-of-law determination, so it is dictum. Id.

23 The Rules Enabling Act states that the rules

“shall not abridge, enlarge or modify any

substantive right.” 28 U.S.C. § 2072(b).
13

which makes no mention of rule 41, reveals

that an f.n.c. dismissal is not a claim-preclusive

judgment. 

Chick Kam Choo characterizes a dismissal

based on federalf.n.c. principles as one not resolving the underlying substantive issues. 486

U.S. at 148. The principle of f.n.c., as “nothing more or lessthan a supervening venue provision,” Am. Dredging, 510 U.S. at 453,

contemplates resolving the merits in another

forum, negating the possibility of claimpreclusion. Although an f.n.c. dismissal designated on the merits may bar reconsideration of

the claims in another Texas federal court,24it

cannot forever bar the controversy from all

American courts. To conclude otherwise

would prevent states from deciding the

openness of their courts.25

Defendants seek to distinguish Chick Kam

Choo because Texas f.n.c. law has changed;

they argue that today Texas would apply the

same or even a less deferential standard than

the federal f.n.c. standard, permitting

application of the relitigation exception. In

contrast to the situation in Semtek, where the

dismissal’s preclusive effect was dictated by

state preclusion law, defendants seek to have

the preclusive effect ofthe f.n.c. dismissal turn

on differences between federal and state f.n.c.

law. 

This would have the undesirable effect of

varying the preclusive effect accorded a federal

f.n.c. dismissal based on the law of the interpreting state. Instead, the type of federal

common law applied to a federal procedural

dismissal, unlike a dismissal based on state

substantive law, does not incorporate state

law. Chick Kam Choo, 531 U.S. at 508. The

threats of “forum-shopping . . . and . . .

inequitable administration of the laws” that

Erie seeks to avoid, Hanna v. Plumer, 380

U.S. 460, 468 (1965), are non-existent where

a dismissal is based on federal procedure.

Chick Kam Choo’s observation regarding the

differences between the Texas “open courts”

policy and federal f.n.c. law serves only to

emphasize the likelihood of a different result in

state court.

C.

Whereas the f.n.c. dismissal did not decide

the substantive merits of plaintiffs’ claims, the

court’s choice of Mexican law did. This is

somewhat counter-intuitive, given that a

choice-of-lawdeterminationis a necessarypart

of an f.n.c. dismissal. Piper, 454 U.S. at 245.

The result is that plaintiffs are not barred from

pursuing their claims in Texas state court so

long as they bring only Mexican law claims.

Key to Chick Kam Choo’sreasoning isthat

a choice-of-law determination made in

24 Even where a court enters a final f.n.c. dismissal, it may reconsider the issue if there is a

change in the material facts underlying the

judgment. Exxon Corp. v. Chick Kam Choo, 817

F.3d 307, 312 (5th Cir. 1987), rev’d on other

grounds, 486 U.S. 140 (1988).

25 Chick Kam Choo, 486 U.S. at 148-49

(“Federal forum non conveniens principles simply

cannot determine whether Texas courts, which

operate under a broad “open-courts” mandate,

would consider themselves an appropriate forum

for petitioner’s lawsuit . . . . [W]hether the Texas

state courts are an appropriate forum for

petitioner’s Singapore law claims has not yet been

litigated.”); see also Picco v. Global Marine

Drilling Co., 900 F.2d 846, 848 (5th Cir. 1990)

(“[Chick Kam Choo] held that a federal forum non

conveniens dismissal was not per se necessarily

res judicata of the appropriateness of state courts

as a forum for the same litigation . . . .”).
14

furtherance of an f.n.c. dismissal is a decision

on the merits. Regarding the Texas law claims

previously dismissed in federal court on

grounds of f.n.c., Chick Kam Choo stated that

the “validity of the claim was adjudicated”

once the lower court determined that

Singapore law governed. Chick Kam Choo,

486 U.S. at 150. In other words, the district

court’s choice-of-law determination

“necessarilyprecludesthe applicationofTexas

law, [so] an injunction preventing relitigation

of that issue in state court is within the scope

of the relitigation exception to the AntiInjunction Act.”26

 Id.; see also Quintero, 914

F.2d at 722. 

Following the reasoning of Chick Kam

Choo, the district court’s decision to apply

Mexican law adjudicated plaintiffs’ Texas law

claims. Even if the other f.n.c. factors were

found to favor Texas over Mexico, plaintiffs’

Texas law claims would be unsustainable in

light of the court’s adverse choice-of-law determination. As the district court observed, it

actually rendered two judgments: (1) Mexican

law governs the controversy; and (2) the f.n.c.

factors favor dismissal and trial in Mexico.

Under Chick Kam Choo, only the former is a

decision on the merits.

Even if a choice-of-law determination were

not considered a judgment separate from the

f.n.c. dismissal, issue preclusion would make it

a proper subject of the relitigation exception.

Next Level, 179 F.3d at 249-50. The choiceof-law issue was “distinctly put in issue,

litigated, and determined in the former action.”

Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th

Cir. 1991) (citation omitted). As noted,

federal courts apply the same choice-of-law

analysis as the state in which they sit. Klaxon,

313 U.S. at 497. Also, issue preclusion does

not require that the accompanying

judgmentSSin this case the f.n.c. dismissalSSbe

adjudicated on the merits. Acree v. Air Line

Pilots Ass’n, 390 F.2d 199, 203 (5th Cir.

1968). Consistent, however, with Chick Kam

Choo, our finding that the choice-of-lawdetermination actually adjudicated the Texas state

lawclaims, therebytriggering claim preclusion,

prevents application of the injunction beyond

the plaintiffs and those in privity.27

For the foregoing reasons, we VACATE

the f.n.c. dismissal and permanent injunction

and REMAND with instruction to add a return

jurisdiction clause to the judgment and modify

the injunction enjoining plaintiffs from relitigating the court’s choice-of-law determination.

26 In maritime cases, choice-of-law is a

determination on the merits and may be treated as

the equivalent of a motion for summary judgment.

Quintero, 914 F.2d at 721; Nunez-Lozano v.

Rederi, 634 F.2d 135, 137 (5th Cir. Unit A 1980).

No reason comes to mind for limiting this principle

to maritime cases.

27 Unlike claim preclusion, collateral estoppel

does not always require complete identification of

parties. Next Level, 179 F.3d at 255-56; Meza v.

Gen. Battery Corp., 908 F.2d 1262, 1273 (5thCir.

1990).