UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AMPA PUNYEE, on behalf of her minor

child JOHN DOE, ET AL.,

Plaintiffs,

VS.

NICHOLAS BREDIMUS,

Defendant.

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)

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) CIVIL ACTION NO.

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) 3:04-CV-0893-G

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)

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)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the plaintiffs -- Ampa Punyee, on behalf of

her minor child John Doe #1, Pongsri Surinpoa, on behalf of her minor child John

Doe #2, and Pranom Seanmai, on behalf of his minor child John Doe #3

(collectively, the “plaintiffs”) -- to relieve them from the court’s judgment, dated

November 29, 2004, dismissing the case on the basis of forum non conveniens. For the

reasons discussed below, the plaintiffs’ motion for reconsideration is denied. 

I. BACKGROUND

The parents are the parents of minor children and resident citizens of

Thailand. Plaintiffs’ Original Complaint (“Complaint”) ¶¶ 1-3; Plaintiffs’ Motion to

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1 Specifically, the court’s judgment gave the plaintiffs 120 days to file a

case in Thailand, required that Bredimus submit to jurisdiction in the Thai courts,

and mandated that Bredimus agree that any final judgment rendered by the Thai

courts would be entitled to full faith and credit in the United States. See generally

Judgment (entered Nov. 29, 2004). This deadline was subsequently extended to June

6, 2005. See Order Granting Extension of Time (filed Feb. 3, 2005). 

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Relieve Plaintiffs From This Court’s Judgment Dated November 29, 2004,

Dismissing the Complaint on Grounds of Forum Non Conveniens and Brief in Support

Thereof (“Plaintiffs’ Motion”) at 1. The three minor children, on whose behalf this

case is brought, allege that they are victims of Nicholas Bredimus (“Bredimus”)’s

intentional and deliberate sexual assault which resulted in severe physical and

emotional injury to them. Plaintiffs’ Motion at 1-2. On August 10, 2004, Bredimus

filed a motion to dismiss on grounds of forum non conveniens. Id. at 2. The court

granted Bredimus’s motion on November 5, 2004, and entered judgment on

November 29, 2004.1

 Id.

On June 7, 2005, the plaintiffs filed the instant motion seeking relief from this

court’s judgment pursuant to Federal Rule of Civil Procedure 60. See generally

Plaintiffs’ Motion. Raul Loya (“Loya”), counsel for the plaintiffs, visited Thailand

and contends that no Thai attorney is willing to take this case because the maximum

recovery under Thai law is approximately $25,000 in United States currency. Id. at

3; Affidavit of Attorney Raul Loya (“Loya Affidavit”) ¶¶ 2-4, attached to Plaintiffs’

Motion as Exhibit A. Additionally, Loya asserts that the Thai courts will not apply

United States law if the case were filed in Thailand. Id. at 3; Loya Affidavit ¶ 6,

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2 Despite the fact the plaintiffs state that their first amended complaint

was filed alongside the instant motion, no such filing has been made with the court. 

See Docket Sheet. 

3 Although Bredimus raised several objections to the Loya Affidavit in his

responsive brief, the plaintiffs did not respond to any of the objections. 

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attached to Plaintiffs’ Motion as Exhibit A. The plaintiffs also aver that they have filed

a first amended complaint seeking redress under 18 U.S.C. §§ 2255 and 2423 and

that a forum non conveniens dismissal is inappropriate to such claims.2

 Id. at 3.

II. ANALYSIS

A. Bredimus’s Objections to the Affidavit of Raul Loya

Before considering the merits of the instant motion for reconsideration, the

court will first consider the objections Bredimus has raised in regard to certain

portions of the Loya Affidavit filed in support of the motion for reconsideration.3

Bredimus first objects to paragraph three of the Loya Affidavit, which states

that Loya discovered the maximum recovery available to the plaintiffs is

approximately one million Baht or $25,000 in United States currency. Defendant’s

Response to Plaintiffs’ Motion to Relieve Plaintiff From the Court’s Judgment Dated

November 29, 2004 and Brief in Support Thereof (“Bredimus’s Response) ¶ 4.A. 

Bredimus contends that this statement is not based on Loya’s personal knowledge, is

hearsay, and is an opinion which does not meet the requirements of Federal Rule of

Evidence 702. Id. According to Federal Rule of Evidence 602, “[a] witness may not

testify to a matter unless evidence is introduced sufficient to support a finding that

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the witness has personal knowledge of the matter.” FED. R. EVID. 602. In his

affidavit, Loya stated that this statement and figure was based on his personal

investigation in Thailand. See Loya Affidavit ¶ 3, attached to Plaintiffs’ Motion as

Exhibit A. Thus, Loya has articulated the basis for his personal knowledge. Further,

since this evidence is not clearly hearsay nor clearly without foundation, it will be

admitted. Bredimus’s objections to paragraph three of the Loya Affidavit are denied. 

Bredimus objects to paragraph four of the Loya Affidavit which states that one

million Baht is a “relatively small sum by Thai standards.” Bredimus’s Response

¶ 4.B. Bredimus also objects to the statement that none of the referenced attorneys

were interested in representing the plaintiffs in a lawsuit in Thailand due to the low

recovery in Thai law. Id. Bredimus asserts that these statements are not based on

personal knowledge and are hearsay. Id. Although Loya failed to clearly articulate

the basis for his understanding of matters presumably outside of his personal

knowledge, this will only go to the weight and not the admissibility of the evidence. 

Additionally, since the Loya’s statements are not hearsay, they will be admitted. For

this reason, Bredimus’s objections to paragraph four of the Loya Affidavit are denied. 

Bredimus objects to paragraph five of the Loya Affidavit which states that

Justice Werasak Rungrat (“Justice Rungrat”), a member of the Supreme Court of

Thailand, “mentioned that the personal injury case would in all probability be

summarily dismissed.” Loya Affidavit ¶ 5, attached to Plaintiffs’ Motion as Exhibit A;

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see also Bredimus’s Response ¶ 4.C. Bredimus contends that Loya has no personal

knowledge concerning the matter and the statement is hearsay. Bredimus’s Response

¶ 4.C. The Federal Rules of Evidence define hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” FED. R. EVID. 801(c). The statement made

by Justice Rungrat to Loya is unquestionably hearsay. As a result, because no hearsay

exceptions apply, this statement is inadmissible hearsay evidence and will not be

considered by the court. Bredimus’s objection to paragraph five of the Loya Affidavit

is granted. 

Finally, Bredimus objects to paragraphs six and seven of the Loya Affidavit on

the basis that Loya’s conclusions are not the subject of proper expert testimony

pursuant to Federal Rule of Evidence 702. Bredimus’s Response ¶ 4.D. Bredimus

claims that Loya is not qualified as an expert on Thai law by knowledge, skill,

experience, training or education. See id. Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case. 

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FED. R. EVID. 702. This standard essentially involves three elements. First, the expert

must demonstrate to the trial court that he or she is qualified -- “by knowledge, skill,

experience, training, or education” -- to proffer an opinion. See id. Second, by

referring to “scientific, technical, or other specialized knowledge,” Rule 702 requires

“evidentiary reliability” in the principles and methods underlying the expert’s

testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90

(1993); FED. R. EVID. 702. Third, the expert’s testimony must assist the trier of fact

in that the testimony must “fit” the facts of the case. See Daubert, 509 U.S. at 592-

93. Moreover, 

[t]he trial judge in all cases of proffered expert testimony

must find that it is properly grounded, well-reasoned, and

not speculative before it can be admitted. The expert’s

testimony must be grounded in an accepted body of

learning or experience in the expert’s field, and the expert

must explain how the conclusion is so grounded.

FED. R. EVID. 702 advisory committee’s note. In this case, the plaintiffs have not met

the first element and thus, the court finds that Loya is not qualified as an expert. His

testimony is based on a one-week visit to Thailand and alleged conversations with

two Thai lawyers and one judge. Moreover, his testimony is neither based on

sufficient facts or data, nor is the product of reliable principles. Accordingly, the

court finds that these paragraphs should be stricken and the remainder of Loya’s

affidavit is properly before the court.

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B. Motion for Reconsideration

The Federal Rules “do not recognize a ‘motion for reconsideration’ in haec

verba.” Lavespere v. Niagra Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.

1990), cert. denied, 510 U.S. 859 (1993). Courts in the Fifth Circuit treat so-called

motions to reconsider either as motions to alter or amend under Rule 59 or as

motions for relief from judgment under Rule 60. Id. If the motion is served within

ten days of the rendition of the judgment, it falls under Rule 59(e); if the motion is

served after that time, it falls under Rule 60(b). Id.; Harcon Barge Co., Inc. v. D & G

Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (en banc), cert. denied, 479 U.S. 930

(1986).

In this case, because of the lapse of time since rendition of the judgment, the

motion is governed by Rule 60(b). See Pryor v. U.S. Postal Service, 769 F.2d 281, 285

(5th Cir. 1985). Under Rule 60(b), a party may obtain relief from a final judgment

or order in six circumstances: where there is (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence which by due diligence could not

have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or

other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has

been satisfied, released, or discharged, or a prior judgment upon which it is based has

been reversed or otherwise vacated, or it is no longer equitable that the judgment

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should have prospective application; or (6) any other reason justifying relief from the

operation of the judgment. See FED. R. CIV. P. 60(b). 

“Motions for reconsideration serve the narrow purpose of allowing a party to

correct manifest errors of law or fact or to present newly discovered evidence.” Texas

Instruments, Inc. v. Hyundai Electronics Industries, Company Ltd., 50 F. Supp. 2d 619,

621 (E.D. Tex. 1999) (quoting Lupo v. Wyeth-Ayerst Laboratories, 4 F. Supp. 2d 642,

643 (E.D. Tex. 1997)) (internal quotation marks omitted); see also McNamara v.

Bre-X Minerals Ltd., 68 F. Supp. 2d 759, 760-61 (E.D. Tex. 1999) (quoting Waltman

v. International Paper Company, 875 F.2d 468, 473 (5th Cir. 1989)). Such a motion is

not “the proper vehicle for rehashing old arguments or advancing theories of the case

that could have been presented earlier.” Resolution Trust Corporation v. Holmes, 846 F.

Supp. 1310, 1316 (S.D. Tex. 1994). A motion for reconsideration based on recycled

arguments serves only to waste the court’s resources. Texas Instruments, 50 F. Supp.

2d at 621. Accordingly, the court expects litigants to advance their strongest case the

first time the court considers the matter. Id. 

In the case at bar, the court finds that the plaintiffs have failed to meet the

standards for Rule 60(b) relief. In particular, they fail to articulate which of these

subsections support the relief requested. Nevertheless, the court assumes that the

plaintiffs seek relief under subsections (b)(1) and (b)(6), for they have not

demonstrated the existence of mistake, inadvertence, surprise, excusable neglect,

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fraud, misrepresentation, or other misconduct by an adverse party. Additionally, the

plaintiffs have not demonstrated that the judgment dismissing this case and allowing

the plaintiffs to proceed in a Thai forum was manifestly unjust. The Fifth Circuit has

held that Rule 60(b)(6) motions “‘will be granted only if extraordinary circumstances

are present.’” Hess v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002) (citation

omitted). The plaintiffs have failed to articulate any “extraordinary circumstances” to

justify relief from this court’s prior order. See, e.g., Batts v. Tow-Motor Forklift

Company, 66 F.3d 743, 749-51 (5th Cir. 1995) (holding that a significant change in

state decisional law did not constitute extraordinary circumstances to justify relief

from the judgment), cert. denied, 517 U.S. 1221 (1996). The only plausible argument

the plaintiffs raise under Rule 60(b)(6) is that the amount they can ultimately recover

in a Thai court renders that forum inadequate. This argument, however, is

completely unavailing and contradicts well-established case law governing the

doctrine of forum non conveniens. The fact that damages may be severely limited in the

alternative forum or that all causes of action may not be available does not render the

alternative forum inadequate. See, e.g., Piper Aircraft Company v. Reyno, 454 U.S. 235,

247, 255 and n.22 (1981) (noting that even though the alternative forum’s

substantive law may be less favorable to the plaintiffs, this should not be given

substantial weight in forum non conveniens determinations and that where the

alternative forum offers a remedy for the plaintiffs’ claims, the foreign forum is

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adequate); Gonzalez v. Chrysler Corporation, 301 F.3d 377, 379-80, 381-82 (5th Cir.

2002) (rejecting the contention that Mexico’s severe limitation on damages and the

unavailability of the theory of strict liability, even where a lawsuit may cease to be

economically viable, rendered the forum inadequate), cert. denied, 538 U.S. 1012

(2003); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 672 and n.4 (5th Cir.

2003) (holding that Mexico was an appropriate forum in spite of expert testimony

that the law of Nuevo Leon limited wrongful liability to approximately $5,700 plus

unspecified “moral damages” as compensation for mental anguish). Therefore,

although the plaintiffs may be limited to a maximum recovery of $25,000 in

Thailand, this limit does not affect Thailand’s adequacy as an alternative forum. The

plaintiffs have causes of action for the recovery of their alleged damages under Thai

law and the relief available on these claims is not so negligible as to render the

available remedy illusory. 

The plaintiffs have not revealed the existence of any likely ground for relief. 

Rather, in their motion for reconsideration, the plaintiffs seek to rehash issues that

have previously been briefed exhaustively by the parties and considered carefully by

the court. In short, the plaintiffs are attempting a second bite at the same issues that

were already addressed by the parties and ruled upon by the court. Another in-depth

analysis of these issues would only serve to waste the resources of this court. 

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4 As mentioned above, the plaintiffs maintain that they filed a first

amended complaint along with their motion for relief from judgment. However, the

court need not consider that amended complaint at this time given that the court’s

prior ruling and judgment will remain in place. 

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Consequently, the plaintiffs’ motion to reconsider this court’s prior ruling must be

denied.4

III. CONCLUSION

For the reasons stated above, the plaintiffs’ motion for reconsideration is

DENIED.

SO ORDERED.

July 29, 2005.

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