United States Court of Appeals

For the Eighth Circuit 

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No. 22-1563

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Nicolas Valadez Rey, Individually, and as Next Friends; 

Jessica Leanne Quinn, Individually, and as Next Friends

 Plaintiffs - Appellants

v.

General Motors, LLC

 Defendant - Appellee

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Appeal from United States District Court 

for the Western District of Missouri

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Submitted: November 16, 2022

Filed: August 11, 2023

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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

Nicolas Valadez Rey sustained a spinal injury during a rollover car accident 

in Mexico. Rey, along with his wife, Jessica Quinn, (collectively, “Plaintiffs”) filed 

a claim for damages against General Motors, LLC (“GM”) on theories of strict 
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liability, negligence, and loss of consortium. The district court1 applied the law of 

Coahuila, Mexico, under Missouri’s choice of law principles, and granted GM’s 

motion for summary judgment. Plaintiffs appeal the district court’s choice of law 

decision. We affirm. 

I. Background

Rey, Quinn, and their three children traveled from Kansas City, Missouri, to

Torreón in Coahuila, Mexico, to stay with family in July 2019. They drove their 

2006 GMC Yukon. The purpose of the trip was related, at least in part, to Rey’s 

legal status in the United States. Rey is a Mexican citizen, and at the time of the 

accident, he could not legally re-enter the United States due to an expired visa. The 

plan was for Quinn and the children to return to the United States after about a month

in Mexico, and for Rey to return once the process for updating his visa was complete.

 After at least a month in Torreón, the family drove the Yukon back to the 

United States border on or about August 30, 2019. Rey’s intention was to take a bus 

from the border back to Torreón and for his family to continue home to Missouri in 

the family’s vehicle. But once they reached the border, Quinn had a change of heart. 

Rather than returning to the United States, she decided to stay in Mexico with her 

husband. The family turned around in the Yukon to drive back to Torreón. Before 

they reached their destination, though, their Yukon was involved in a single-vehicle 

rollover crash on the morning of August 31. Rey’s cervical spine was injured and 

he is not expected to walk again.

Rey and Quinn sued GM in the Western District of Missouri, asserting various 

claims related to the design and performance of the vehicle’s roof and other features 

in the event of a rollover accident. GM is a Delaware limited liability company, and 

its principal place of business is in Michigan. The district court determined the 

Yukon was assembled in Wisconsin, originally distributed by General Motors 

1

The Honorable Greg Kays, United States District Judge for the Western 

District of Missouri.
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Corporation to a dealership in Texas, resold by several third parties, and eventually 

sold to Rey at a dealership in Kansas City, Missouri. Rey and Quinn live in Kansas 

City, Missouri.

Within approximately a week after the action was filed it was clear in the 

record that the accident occurred in Mexico. The district court issued a Rule 16 

scheduling order which, after subsequent motions for extensions, had a discovery 

deadline of October 1, 2020, a choice of law motion deadline of October 8, and a 

trial date of July 20, 2021. The district court’s scheduling order cautioned the parties 

against filing choice of law motions too early. It stated, “[w]hile such motions may 

be filed any time before [the deadline to file dispositive motions] . . . [the Court]

may defer ruling on a choice of law motion if the parties have not presented a factual 

record full enough to permit the Court to properly undertake the appropriate 

analysis.”

On October 8, Plaintiffs and GM each filed a choice of law motion. Plaintiffs 

argued the law of Missouri should apply, and GM argued the law of Coahuila, 

Mexico, should apply. The district court agreed with GM, entering an order that 

Mexico’s law would govern the claims. Shortly thereafter, with leave of the district 

court, Plaintiffs filed an amended complaint to replead their claims under the law of 

Coahuila, Mexico. The updated causes of action were for Count I, “Negligence & 

Damages under the Coahuila Civil Code,” and Count II, Quinn’s “Moral Damages 

under Coahuila Law.”

GM filed a motion to dismiss Count II, arguing Coahuila does not recognize 

“indirect” moral injuries, which the district court granted. GM then filed a motion 

for summary judgment on Count I, the remaining “negligence” claim, which, again, 

the district court granted. Plaintiffs appeal.
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II. Analysis

The only issue on appeal is whether the district court erred when it concluded 

the law of Coahuila, Mexico, governed the action. Plaintiffs advance two main 

arguments in support of reversing the district court’s decision: (1) GM waived the 

application of foreign law by failing to raise it in a timely manner; and (2) under 

Missouri’s choice of law principles, Missouri had a more significant relationship 

with the parties and the occurrence than Mexico. 

A. Waiver

We turn first to the issue of waiver. As we have previously observed, whether 

foreign law has been timely raised under Federal Rule of Civil Procedure 44.1 is a 

determination that “implicates the discretionary powers of the district court to 

supervise litigation.” Azarax, Inc. v. Syverson, 990 F.3d 648, 652–53 (8th Cir. 

2021). It is within the realm of decisions with which “[t]he district court is entitled 

to considerable deference,” and we will not disturb the ruling below unless there was 

an abuse of discretion. Id. at 654.

The text of Rule 44.1 says nothing about when notice of intent to raise an issue 

about a foreign country’s laws must be given. It says: “A party who intends to raise 

an issue about a foreign country’s law must give notice by a pleading or other 

writing.” Fed. R. Civ. P. 44.1. The purpose of this notice requirement, however, is 

to avoid unfair surprise. Azarax, 990 F.3d at 652. Thus, a timeliness aspect is 

implicated by the rule. Whether the notice a party provided is timely in a particular 

case turns on the facts and circumstances of that case. See id. at 653 (indicating the 

timing of the notice ought to be “reasonable in light of the interests of all parties and 

the court” (quoting DP Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 

F.3d 829, 847 (9th Cir. 2001)). There are multiple factors that could be at play 

including, but not limited to: “[t]he stage which the case had reached at the time of 

the notice, the reason proffered by the party for his failure to give earlier notice, and 

the importance to the case as a whole of the issue of foreign law sought to be raised.” 
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Id. at 653 (brackets in original) (quoting Fed. R. Civ. P. 44.1 advisory committee’s 

note to 1966 adoption).

Plaintiffs argue the timing of this notice was unreasonable because: (1) it was 

practical for GM to provide an earlier notice since it was clear from the beginning 

of litigation the accident happened in Mexico; (2) GM’s choice of law motion was 

filed after discovery closed; and (3) Plaintiffs had conducted their discovery under 

the assumption that Missouri law would apply. In Plaintiffs’ view, the district 

court’s decision to apply Mexican law “pulled the rug out from under” them—i.e., 

they were unfairly surprised by the application of Mexico’s law.

GM paints a different picture. As it sees things, there was no unfair surprise 

here because GM complied with the district court’s Rule 16 scheduling order for 

filing choice of law motions, and it filed the motion nine months before the thenscheduled trial. At oral argument, GM pointed out additional facts as well: 

Plaintiffs’ choice of law motion (filed the same day as GM’s) acknowledged the 

Missouri-law presumption that the law of the place of the injury generally governs

and sought to rebut that principle, and Plaintiffs initially opposed continuing the trial 

date. To GM, these facts show Plaintiffs were not truly surprised by GM’s desire to 

rely on Mexican law and, even if they were surprised, it worked no unfairness against 

them.

As a practical matter, GM’s notice could have been provided earlier in the 

proceedings. This fact is one that may weigh against the timeliness of GM’s notice. 

See Fed. R. Civ. P. 44.1 advisory committee’s note to 1966 adoption (“In some 

situations the pertinence of foreign law is apparent from the outset; accordingly the 

necessary investigation of that law will have been accomplished by the party at the 

pleading stage . . . .”). But that is not the only fact at play in this case, and it alone 

is not dispositive.

At the time GM filed the motion in October 2020, the trial date was scheduled 

for July 2021—still nine months away. Although discovery had closed, Plaintiffs 
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did not seek to reopen discovery. Nor, on appeal, have they identified factual gaps 

for their claims under Mexican law that did not exist under Missouri law that they 

would have tried to fill in with a different discovery strategy. We also find it notable 

that Plaintiffs’ own choice of law motion, filed on the same date, acknowledged 

application of Mexican law was on the table under Missouri’s choice of law 

principles because it was the place of the injury. This seems particularly relevant 

because GM’s reason for raising the issue when it did was because the district court 

had cautioned the parties not to raise choice of law issues too early, and GM 

understood its actions to simply conform to the district court’s scheduling order. 

Under all the facts and circumstances of this case we conclude the district court did 

not abuse its discretion when it determined GM had not waived its ability to assert 

the application of Mexican law. 

To avoid this conclusion, Plaintiffs rely on our recent decision in Azarax. In 

Azarax, we held a district court did not abuse its discretion by denying a party’s 

motion to rely on Mexico’s law. 900 F.3d at 654. The district court had relied on 

the fact that the case had been pending for more than three years, the party had not 

provided a reason for the late notice, and the delay was unreasonable. Id. at 653. 

The appellant argued the delay “was justified because it did not learn that” foreign 

law was relevant until that time in the proceedings. Id. We disagreed, concluding 

the record put the party on notice that Mexican law was at issue. Id. We also agreed 

with the district court’s conclusion that the notice was not timely because discovery 

had closed and “[t]he court would have been required either to decide an issue of 

foreign law without the benefit of thorough briefing or to extend litigation that was 

already three years old to permit additional briefing and discovery.” Id. at 654.

Plaintiffs emphasize our statement that “[i]t is only fair to provide notice of 

potential application of foreign law as early as is practicable” under Rule 44.1. Id. 

at 653 (brackets in original) (quoting DP Aviation, 268 F.3d at 847). Their analysis

ignores, however, the end of the sentence which adds: “and, in any event, at a time 

that is reasonable in light of the interests of all parties and the court.” Id. (quoting 

same). We do not read Azarax as creating an early-as-is-practicable hardline rule. 
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Just because GM could have provided notice earlier does not mean such notice was 

so unreasonable that GM waived its right to request application of foreign law.

Plaintiffs also emphasize that part of our reasoning in Azarax related to the 

fact discovery had closed, and discovery had also closed in this case when GM filed 

their choice of law motion. There are differences between these cases, though. 

Unlike the party in Azarax, GM had a legitimate explanation for its delay. And the 

length of that delay—approximately thirteen months from the beginning of the 

proceedings—is much shorter than the three-year delay in Azarax. Moreover, the 

district court extended the litigation. At the time the district court entered its order 

on the choice of law motion on October 13, 2021, trial was scheduled for November 

8. On October 27, the district court sua sponte continued the trial and later set the 

new trial date for March 16, 2022. Our conclusion in Azarax that the district court 

did not abuse its discretion by refusing to allow a party to rely on foreign law, does 

not lead to the conclusion the district court abused its discretion here when it decided 

the opposite under different facts. 

B. Choice of Law

Next, Plaintiffs take aim at the district court’s choice of law determination. 

When reviewing a district court’s decision on choice of law, this court considers the 

matter de novo. C.H. Robinson Worldwide, Inc. v. Traffic Tech, Inc., 60 F.4th 1144, 

1148 (8th Cir. 2023). Because our jurisdiction is based on diversity, we apply the 

forum’s choice of law rules, id., which in this case is Missouri.

When “interpreting and applying Missouri state law, ‘we are bound by the 

decisions of the Supreme Court of Missouri.’” Burdess v. Cottrell, Inc., 53 F.4th 

442, 447 (8th Cir. 2022) (quoting Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 

897 (8th Cir. 2014)). “Where the Supreme Court of Missouri has not spoken, we 

must predict how the court would rule, and we follow decisions from the 

intermediate state courts when they are the best evidence of Missouri law.” Id.

(cleaned up) (quoting same). 
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Before addressing the merits of the decision, Plaintiffs argue the district court 

erred by reaching the question of whether to apply Missouri or Mexican law because 

the case involved a “false conflict” of laws under Missouri law. For this argument, 

Plaintiffs rely on Colonial Presbyterian Church v. Heartland Presbytery, 375 

S.W.3d 190 (Mo. Ct. App. 2012), and the district court’s statement that Rey was a 

Missouri resident. Colonial Presbyterian says: “A false conflict of laws exists when 

the policy of the foreign jurisdiction would not be advanced by application of its law 

because there is no resident of the foreign jurisdiction before the court who would 

benefit from the foreign jurisdiction’s law.” Id. at 199.

GM responds that, whatever the merits of Plaintiffs’ position, they waived this 

argument because they did not raise it before the district court. We agree. Review 

of the arguments presented below shows the no-conflict argument Plaintiffs raised 

below was based on whether the law of the different jurisdictions would yield 

different results, rather than the rule identified in Colonial Presbyterian. Because 

we do not address arguments raised for the first time on appeal, this argument is 

waived. See St. Paul Fire & Marine Ins. Co. v. Compaq Comput. Corp., 539 F.3d 

809, 824 (8th Cir. 2008) (concluding choice of law argument not presented to the 

district court was waived).2

That brings us to the merits of the district court’s choice of law decision. 

Missouri has adopted the “most significant relationship” test of the Restatement 

(Second) of Conflict of Laws to determine the applicable law for tort claims. Wolfley 

v. Solectron USA, Inc., 541 F.3d 819, 823 (8th Cir. 2008); see also Parrott v. Severs 

2

The Missouri Supreme Court has not expressly endorsed the rule of Colonial 

Presbyterian. Thus, even if we were to “reach that question today, [and] make the 

appropriate ‘Erie-educated guess,’” Olmsted Med. Ctr. v. Continental Cas. Co., 65 

F.4th 1005, 1010 (8th Cir. 2023) (quoting Blankenship v. USA Truck Inc., 601 F.3d 

852, 856 (8th Cir. 2010)), we are skeptical the Missouri Supreme Court would adopt 

the rule, and even more skeptical the Missouri Supreme Court would extend the rule 

to the context of a foreign citizen who could not legally enter the United States at 

the time of the injury. 
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Trucking, LLC, 422 S.W.3d 478, 482 (Mo. Ct. App. 2014). Section 145 provides 

the general guiding principle for choice of law in all tort actions: “the rights and 

liabilities of the parties will be determined by the law of the state with the most 

significant relationship to the accident and the parties.” Dorman v. Emerson Elec. 

Co., 23 F.3d 1354, 1358 (8th Cir. 1994). Section 146 provides the rule specific for

personal injury actions:

the local law of the state where the injury occurred determines the rights 

and liabilities of the parties, unless, with respect to the particular issue, 

some other state has a more significant relationship under the principles 

stated in § 6 to the occurrence and the parties, in which event the local 

law of the other state will be applied

Restatement (Second) of Conflict of Laws § 146 (1971). “This formulation 

essentially establishes a presumption that the state with the most significant 

relationship is the state where the injury occurred, absent an overriding interest of 

another state based on the factors articulated in section 6.” Wolfley, 541 F.3d at 823 

(quoting Dorman, 23 F.3d at 1358).

Applying the Restatement’s principles is easier in some cases than others. We 

have observed that when “the injury and the conduct causing the injury occur in the 

same state, the Restatement principles are easy to apply.” Dorman, 23 F.3d at 1358. 

In that scenario, the state where the injury and the conduct causing the injury 

occurred will most likely govern. See Nelson v. Hall, 684 S.W.2d 350, 352–53 & 

n.3 (Mo. Ct. App. 1984) (recognizing a state’s “obvious interest in regulating the 

conduct of persons within its territory and in providing redress for injuries that 

occurred there” means “the local law of the state where conduct and injury occurred 

will be applied,” “subject only to rare exceptions” (emphasis omitted) (quoting 

Restatement (Second) of Conflict of Laws § 145 cmt. d (1971)). 

The complexity of the analysis increases when “the injury and the conduct 

causing the injury take place in separate states.” Dorman, 23 F.3d at 1358–59. That 

is the position we find ourselves in today. In this case, Rey’s injury occurred in 
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Mexico. GM assembled the vehicle in Wisconsin and it is unclear where it was 

designed. Thus, we return to the guiding principles of the Restatement to ask 

whether “some other state has a more significant relationship under the principles 

stated in § 6 to the occurrence and the parties” than Mexico. Restatement § 146.

The only state Plaintiffs ask us to consider under the § 6 factors is Missouri. 

Although there are seven factors listed in § 6, Plaintiffs focus on subsections (b), (c), 

and (e). See Dorman, 23 F.3d at 1359 (identifying (b), (c), and (e) as the most 

relevant factors in personal injury claims caused by accidents); Wilson v. Image 

Flooring, LLC, 400 S.W.3d 386, 397 (Mo. Ct. App. 2013) (“Generally, the only 

factors that are relevant in a tort action are those identified in subsections (b) and (c) 

. . . .”). These factors are “the relevant policies of the forum,” “the relevant policies 

of other interested states and the relative interests of those states in the determination 

of the particular issue,” and “the basic policies underlying the particular field of 

law.” Restatement (Second) of Conflict of Laws § 6(2)(b)–(c) and (e) (1971). 

Plaintiffs emphasize Missouri’s interest in seeing them, as long-time residents

of Missouri, compensated for their injuries. Missouri’s law does not lead decisively 

to the conclusion that, because Plaintiffs claims may be more likely to succeed under 

Missouri’s law, Missouri’s law should be applied. In Wilson, the Missouri Court of 

Appeals distinguished between “a right of recovery as opposed to a question of 

liability.” 400 S.W.3d at 398. If the issue was over “a rule of recovery or a question 

of compensation, the domicile of the parties is the most significant contact.” Id. For 

that reason, the Wilson court declined to apply Kansas’s law placing a cap on noneconomic damages when the plaintiffs were Missouri domiciliaries and the 

defendant was a Missouri corporation, even though Kansas was the place of the 

injury, the place where the conduct occurred that gave rise to the injury, and the 

center of the location of the relationship between the parties. Id.; see also Rider v. 

Young Men’s Christian Ass’n of Greater Kan. City, 460 S.W.3d 378, 388 (Mo. Ct. 

App. 2015). Here, the issue with Plaintiffs’ claims is whether GM committed any 

tort at all—i.e., a question of liability—rather than with how much Plaintiffs are 

entitled to recover. This is evident based on how the district court resolved this case 
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against Plaintiffs on GM’s motion to dismiss and motion for summary judgment. 

And Plaintiffs appear to concede that the switch to the law of Coahuila, Mexico, 

substantively doomed their claims. Therefore, Missouri’s interest in Plaintiffs’ 

“right of recovery” does not outweigh Mexico’s interest in determining “the right of 

remedy.” Rider, 460 S.W.3d at 388.

Plaintiffs try to reduce Mexico’s relative interest by arguing Mexico’s contact 

with the parties and the occurrence was irrelevant under the “enhanced injury” 

doctrine and was otherwise merely fortuitous. The enhanced injury doctrine 

“distinguishes between the conduct or circumstances which cause an accident and 

an alleged design defect which causes an injury to the plaintiff.” Thornton v. Gray 

Auto. Parts Co., 62 S.W.3d 575, 587 (Mo. Ct. App. 2001). “Under the correct 

circumstances,” the doctrine means “the manufacturer cannot even raise the 

misconduct of the plaintiff as a basis for comparative fault.” Id. Although Plaintiffs 

insist the application of this doctrine is important in choice of law, they do not cite 

any cases applying the doctrine to the inquiry. Without something more, we have 

no reason to believe the Missouri Supreme Court would extend this doctrine to the 

context of choice of law. See Burdess, 53 F.4th at 447 (providing our role is to 

predict how the Missouri Supreme Court would rule if it is silent on an issue).

The Restatement recognizes the role of the place of the injury will be less 

important “when the place of injury can be said to be fortuitous . . . .” Restatement 

§ 145 cmt. e. “The quintessential example of a contact being fortuitous is the 

‘flyover’ case where the plaintiff is injured while passing over a state during air 

flight, so that the place of the injury is inconsequential.” Dorman, 23 F.3d at 1360 

(citing Nelson, 684 S.W.2d at 352 n.3). This case bears little resemblance to the 

quintessential example. At the time of the accident, Plaintiffs had been in Mexico 

for at least a month, had recently decided to remain there even longer, and it was 

uncertain when they would return to the United States. Like the district court 

observed, these are not “fortuitous” contacts with Mexico, but intentional contacts.
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Lastly, Plaintiffs argue the basic policies underlying the field of strict liability 

law would be undermined by applying Mexico’s law because Mexico does not allow 

a claim for strict liability. A comment to § 6 provides that, subsection (e) “is of 

particular importance in situations where the policies of the interested states are 

largely the same but where there are nevertheless minor differences between their 

relevant local law rules.” Restatement § 6 cmt. h. Such is not the case here, where, 

according to Plaintiffs, the substantive laws are different to the extent that Mexico 

does not even recognize claims for strict liability. For that reason, this factor does 

not tilt things in Plaintiffs’ favor.

After considering the § 6 factors and the parties’ arguments, we conclude 

Missouri’s relationship to this case does not overcome the presumption that the place 

of the injury—Coahuila, Mexico—is the place with the most significant relationship 

to the parties and occurrence. 

III. Conclusion

The judgment of the district court is affirmed.

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