Memorandum Opinion and Order – Page 1 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAUL HERNANDEZ MARTINEZ, et al., §

§

Plaintiffs, §

§

v. § Civil Action No. 3:06-CV-0421-L

§

THE GOODYEAR TIRE & RUBBER CO., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Defendant’s Opposed Motion to Dismiss for Forum Non

Conveniens, filed August 3, 2007; and (2) Goodyear’s Unopposed Motion for Leave to File its reply

to the Plaintiffs’ Supplemental Filing in Opposition of Goodyear’s Motion to Dismiss for Forum

Non Conveniens, filed November 30, 2007. After considering the motions, briefs, record, and

applicable law, the court grants Defendant’s Opposed Motion to Dismiss for Forum Non

Conveniens and denies as moot Goodyear’s Unopposed Motion for Leave to File its reply to the

Plaintiffs’ Supplemental Filing in Opposition of Goodyear’s Motion to Dismiss for Forum Non

Conveniens.

I. Factual and Procedural Background

This case involves the death of Eulogio Hernandez Pineda a/k/a Eulogio Hernandez

(“Hernandez”), who died in an automobile accident in San Luis Potosi, Mexico. Plaintiffs filed their

Original Complaint on March 8, 2006, asserting claims of negligence and strict liability against

Defendant the Goodyear Tire & Rubber Company (“Defendant” or “Goodyear”). Plaintiffs are

Hernandez’s surviving wife and eight children. Plaintiffs allege that Hernandez died as the result
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of injuries sustained during the crash caused by the catastrophic failure of the right rear Goodyear

tire on his vehicle. Compl. ¶ 10. The accident occurred on the State Road of Cerritos in San Luis

Potosi, Mexico. Id. 

Defendant moves to dismiss this case pursuant to forum non conveniens and argues that San

Luis Potosi is an adequate alternate forum to hear Plaintiffs’ claims. Plaintiffs oppose Defendant’s

motion and contend that their claims should be heard in this court.

II. Legal Standard

A defendant bears the burden of persuasion as to all elements of the forum non conveniens

analysis. In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1164-65 (5th Cir. 1987)

(en banc), vacated on other grounds sub nom., Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032

(1989), opinion reinstated on other grounds, 883 F.3d 17 (5th Cir. 1989) (en banc). When

considering a motion to dismiss for forum non conveniens, “the ultimate inquiry is whether trial will

best serve the convenience of the parties and the ends of justice.” Koster v. Lumbermen’s Mut. Cas.

Co., 330 U.S. 518, 527 (1947). In deciding a motion to dismiss for forum non conveniens, a court

first determines whether an alternate forum is available and adequate. Gonzales v. Chrysler Corp.,

301 F.3d 377, 379-80 (5th Cir. 2002). A foreign forum is available if the entire case and all parties

can come within the jurisdiction of that forum. In re Air Crash Disaster, 821 F.2d at 1165. A

defendant comes within the jurisdiction of an alternate forum when “the defendant is amenable to

process” in the alternate forum at the time of dismissal. Veba-Chemie A.G. v. M/V Getafix, 711 F.2d

1243, 1246 (5th Cir. 1983) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22 (1981)).

A foreign forum is adequate if the parties will not be deprived of all remedies or treated unfairly
Memorandum Opinion and Order – Page 3 

even though they may not enjoy the same benefits as they might receive in an American court. In

re Air Crash Disaster, 821 F.2d at 1165.

Upon determining that an alternative forum is both available and adequate, a court decides

if the alternate forum is more convenient for the litigants by weighing the various private and public

interest factors. Gonzalez, 301 F.3d at 379-80. Only if a court concludes that dismissal is not

appropriate based upon its review of the private interest factors, must it then weigh the public

interest factors. Id. If a court determines that these factors favor the moving party, it may dismiss

the case for forum non conveniens. Id. The decision to grant or deny a motion to dismiss for forum

non conveniens is within the sound discretion of the trial court. American Dredging Co. v. Miller,

510 U.S. 443, 454 (1994). “[O]rdinarily a strong presumption in favor of the plaintiff’s choice of

forum, which may be overcome only when the private and public interest factors clearly point

towards trial in the alternative forum . . . however, that presumption applies with less force when

the plaintiff or real parties in interest are foreign.” Piper Aircraft, 454 U.S. at 255.

III. Analysis

A. Adequacy and Availability of an Alternate Forum

Defendant argues that the courts of San Luis Potosi, Mexico are an adequate and available

alternate forum where Plaintiffs may bring their claims. Defendant has also stated on the record that

it “agrees to subject itself to the jurisdiction of a Mexican court in the State of San Luis Potosi for

purposes of this case only.” Def.’s Brief, 2-3. Plaintiffs acknowledge that the this circuit has held

that Mexican courts are adequate, but argue that a Mexican forum will deprive them of certain Texas

state law claims and that Mexican law has extreme limitations on recovery for personal injury
1

As pleaded in the Complaint, Plaintiffs Saul Hernandez Martinez and Delia Hernandez Martinez are

“citizen[s] of Texas;” Plaintiffs Dometilia Martinez Ruelas a/k/a Dometilia Hernandez, and Maria Felix Tovar

are legal permanent residents of the United States; and Plaintiffs Consuelo Hernandez Martinez, Alberto

Hernandez Martinez, Catalina Hernandez Martinez, Leonor Hernandez Martinez, and Eulogio Hernandez

Martinez are citizens of Mexico. 

Memorandum Opinion and Order – Page 4 

lawsuits. Plaintiffs argue that these Mexican limitations should not be applied to citizens of the

United States.1

The court determines that Defendant’s stipulation of its willingness to submit to jurisdiction

in a Mexican court is sufficient to conclude that the courts of San Luis Potosi, Mexico are an

available forum. The court next considers whether the Mexican courts are adequate. “The fact that

Mexico provides a wrongful death cause of action, albeit with severe damage caps, makes the

country an adequate forum.” Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 672 (5th Cir.

2003) (citing Piper Aircraft, 454 U.S. at 255). Plaintiffs argue that the Mexican forum is inadequate

because some of the Plaintiffs are citizens of the United States, and contend that the cases in which

a Mexican forum has been found adequate reach that conclusion because the plaintiffs are Mexican

citizens.

The parties also dispute the ties of decedent Hernandez to the United States. While Plaintiffs

argue that he was a legal United States resident who lived and worked in Dallas. Defendant points

out that Hernandez was a Mexican citizen, who owned property and lived in Mexico. The court

finds that while Hernandez clearly had ties both to Texas and San Luis Potosi, Mexico, in this

dispute, his ties to Mexico weigh heavily. He owned property in San Luis Potosi, had bought the

vehicle involved in the accident in Mexico, and was injured while driving that truck in Mexico. 

The court determines that the Mexican courts are adequate. While Plaintiff’s choice of

forum may be entitled to some degree of deference because two of the nine Plaintiffs are U.S.
Memorandum Opinion and Order – Page 5 

citizens, the citizenship of Plaintiffs is not the dispositive issue. In Piper Aircraft, in holding that

Scottish courts were adequate even though plaintiffs could not bring strict liability claims, the

Supreme Court did not refer to the citizenship of plaintiffs, but instead held more broadly that

“[a]lthough the relatives of the decedents may not be able to rely on a strict liability theory, and

although their potential damages award may be smaller, there is no danger that they will be deprived

of any remedy or treated unfairly.” 454 U.S. at 254-55. The Fifth Circuit, however, did find “no

warrant for us, a United States court, to replace the policy preference of the Mexican government

with our own view of what is a good policy for the citizens of Mexico.” Gonzalez, 301 F.3d at 382.

The court, considering that the majority of Plaintiffs in this case are not citizens of the United States,

finds that the Mexican court is an adequate alternate forum, but will weigh the United States

citizenship of two Plaintiffs when balancing the private and public factors. 

B. Private Factors

After determining that an adequate and available alternate forum exists, the court must weigh

the private and public factors that may favor dismissal. The private interests 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 possibility of view of

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

practical problem that make trial of a case easy, expeditious and

inexpensive.

Vasquez, 325 F.3d at 672 (quoting McLennan v. American Eurocopter Corp., Inc., 245 F.3d 403,

424 (5th Cir. 2001)). 

As to the first factor, Defendant points out that the accident occurred in Mexico, that

investigative materials and the only surviving witness to the accident are in Mexico, and that the

vehicle was licensed and registered in Mexico. Plaintiff argues that Goodyear’s witnesses are
2

On November 14, 2007, Plaintiffs filed a Supplemental Filing in Opposition to Goodyear’s Motion

to Dismiss for Forum Non Conveniens relating to the status of discovery in this case. The court treats this

filing as a surreply filed without leave of court and strikes the document. Accordingly, the court denies as

moot Goodyear’s Unopposed Motion for Leave to File its reply to the Plaintiffs’ Supplemental Filing in

Opposition of Goodyear’s Motion to Dismiss for Forum Non Conveniens. Even if the court were to consider

the arguments made in the surreply and response to the surreply, the court’s analysis would not change.

Memorandum Opinion and Order – Page 6 

located in the United States, and that Defendant will need to produce large amounts of documents

in this country related to the product design of the tire in question. Plaintiff contends that the

amount of documents that will be produced by Goodyear is greater than the amount of documents

in Mexico. 

Defendant argues that the second factor, regarding the ability to compel witnesses, also

favors dismissal. It points out that this court cannot compel the attendance of Mexican witnesses

or the production of documents in Mexico. Plaintiff argues that it will be unable to compel the

attendance of Goodyear’s witnesses in a Mexican court, and that many of the depositions of

Mexican witnesses have already taken place.2

 Defendant responds that the only living witness to

the accident is in Mexico and has not been deposed and that many of Plaintiff’s witnesses have given

their testimony in Spanish rather than English.

Defendant argues that the third factor – the ability to view the premises – clearly weighs in

favor of dismissal, because the accident occurred in Mexico and it would be impracticable for a jury

in the United States to see the accident site. Plaintiff argues that this is unlikely to be necessary in

this case.

Finally, with respect to the last factor, Defendant argues that the fact that many documents

are in Spanish and many witnesses primarily speak Spanish makes trial in a Mexican court more

efficient and effective than a trial through translators in this court. Defendant also points out that

the tire in question was neither designed nor manufactured in Texas. Plaintiff argues that similar
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difficulties would lie in trial in a Mexican court, because the design documents of Defendant would

need to be translated into Spanish and the focus of discovery will be on the tire failure.

The court has considered the factors, and determines that the private factors weigh in favor

of dismissal. This case is very similar to Vasquez, in which the court held:

[P]laintiffs, the driver of the vehicle, and all decedents are Mexican

citizens. In addition, the vehicle and tires were manufactured,

purchased, and maintained 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 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. 

325 F.3d at 672-73. The court went on in that case to specifically reject an argument similar to

Plaintiff’s regarding the amount of product design documents located in the United States. In

affirming the district court’s dismissal pursuant to forum non conveniens, the court held: “Assuming

arguendo that all information relating to the design and manufacture of the tires and vehicles is

located in the United States, we still find the court’s analysis correct.” Id. at 673.

Here, as in Vasquez, the car accident that is at the heart of this dispute occurred in Mexico,

in a vehicle bought and registered in Mexico, and involved two Mexican citizens. The court does

give some deference to Plaintiffs’ choice of forum because two of the Plaintiffs are United States

citizens. Piper Aircraft, 454 U.S. at 255. This deference, however, is not dispositive, and the court

determines that the private factors weigh heavily in favor of dismissal. Pacific Employers Ins. Co.

v. M/V Capt. W.D. Cargill, 751 F.2d 801, 805-06 (5th Cir.), cert. denied, 474 U.S. 909 (1985)

(“Thus, despite [plaintiff’s] argument that as a United States citizen its choice of a home forum is

entitled to greater deference by a United States court than a foreigner’s choice, a United States court
3

The court recognizes that Defendant has filed a separate motion asking the court to apply Mexican

law, but this motion was filed subject to its motion to dismiss. The court need not rule on the motion to apply

Mexican law because the court determines that this factor will not upset its conclusion in balancing the private

and public factors relating to dismissal. 

Memorandum Opinion and Order – Page 8 

in a forum non conveniens case is not required to make its determination on that factor alone, nor

would it have abused its discretion in not heavily weight that factor.”). The court determines that

because the accident is tied more closely to Mexico and the majority of Plaintiffs are Mexican

citizens, the private factors weigh in favor of dismissal.

C. Public Factors

Having determined that the private factors favor dismissal, the court now considers the

public factors. These factors 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.

Vasquez, 325 F.3d at 673 (quoting McLennan, 245 F.3d at 424) (internal quotation marks and

citation omitted).

The court determines that the first factor – court congestion – does not weigh heavily either

for or against dismissal. The second factor – the local interest – weighs in favor of dismissal. While

Hernandez did live in Dallas and four of the Plaintiffs currently reside in Dallas, the heart of this

case is a Mexican car accident involving a Mexican citizen. While some of the decedent’s surviving

relatives live in this forum, the facts of this case do not involve a controversy local to Dallas or

Texas. The court determines that the third and fourth factors involving the choice of law has not

been briefed adequately to weigh in favor or against dismissal.3

 While Plaintiff does cite a case in
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which a court applied Texas law to a controversy involving a car accident in Mexico, the court

considered several factors in determining which law applied. See Ford Motor Co. v. Aguiniga, 9

S.W.3d 252, 259-261 (Tex. App. – San Antonio 1999, pet. denied). Finally, the last factor related

to the burden on a local jury also weighs in favor of dismissal because this case does not involve a

local issue.

As this dispute is largely about a Mexican accident involving non-citizen Plaintiffs, the court

concludes that the public factors also weigh in favor of dismissal. This result is consistent with the

court’s decision in Vasquez, a case in which the court noted:

The linchpin of plaintiff’s argument – that the alleged wrongful act

was the original design of the vehicle and tires – reaches back too far

int eh 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.

325 F.3d at 674 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). For these reasons, the

court determines that dismissal pursuant to forum non conveniens is appropriate.

IV. Conclusion

For the foregoing reasons, the court grants Defendant’s Opposed Motion to Dismiss for

Forum Non Conveniens and denies as moot Goodyear’s Unopposed Motion for Leave to File its

reply to the Plaintiffs’ Supplemental Filing in Opposition of Goodyear’s Motion to Dismiss for

Forum Non Conveniens. The court dismisses this case pursuant to forum non conveniens. The

dismissal of this case, however, must be conditioned to ensure that Plaintiffs can reinstate their suit

in American courts in the event Defendant evades jurisdiction in Mexico or Mexico declines to

exercise jurisdiction. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1551 (5th Cir.), cert. denied, 502
4

The court conditions any reinstatement of the present action on: (1) a certification by Plaintiffs

following the present forum non conveniens dismissal that Plaintiffs made a good faith effort to initiate the

action in Mexico and were unable to receive an adjudication on the merits under the laws of that country so

that Mexico was unavailable within the meaning of the pertinent authorities; and (2) that upon a filing of a

motion for reinstatement, a reassessment will be made as to the availability of the Mexican forum, and if it

is determined that it is not available, Plaintiff’s motion for reinstatement will be granted and any applicable

statute of limitations will be deemed to have been tolled by the initiation of the present action. 

Memorandum Opinion and Order – Page 10 

U.S. 963 (1991) (citing In re Air Crash Disaster, 821 F.2d at 1166). According, the court conditions

dismissal on the following: (1) Defendant consents to the jurisdiction of Mexico; (2) the acceptance

and exercise of jurisdiction by Mexican courts; (3) Defendant’s waiver of all statute of limitations

defenses if Plaintiffs file suit in Mexico within 90 days of this court’s dismissal; (4) Defendant’s

agreement to the enforceability of a judgment entered by a Mexican court; and (5) Defendant’s

agreement to reinstatement of the action in its present posture in the Northern District of Texas if

Mexico proves to be unavailable, because the highest court of Mexico declines to exercise

jurisdiction despite Plaintiffs’ good faith efforts to initiate the action in Mexico.4 Id. (setting forth

measures a court may take to ensure that a defendant will not attempt toe vade the jurisdiction of the

foreign court).

It is so ordered this 31st day of January, 2008.

_________________________________

Sam A. Lindsay

United States District Judge