Œ The order issued with a notation that an opinion would follow.

Because our decision preceded the opinion, we granted the petitioners an extension of time for filing a petition for rehearing until

14 days after the issuance of this opinion, should they choose to

file such a petition. See Smith v. American Arbitration Ass’n, 233

F.3d 502, 502 n.* (7th Cir. 2000).

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3111

IN RE: FORD MOTOR COMPANY AND

BRIDGESTONE/FIRESTONE NORTH

AMERICAN TIRE, LLC, as successor to

Bridgestone/Firestone, Inc.,

Petitioners.

____________

Petition for a Writ of Mandamus to the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 00-9373-C-B/S, MDL No. 1373—Sarah Evans Barker, Judge.

____________

SUBMITTED OCTOBER 30, 2002—DECIDED NOVEMBER 13, 2002Œ

OPINION SEPTEMBER 12, 2003

____________

Before KANNE, DIANE P. WOOD, and EVANS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Several hundred products liability lawsuits filed in federal court against Ford

Motor Company and Bridgestone/Firestone North American
2 No. 02-3111

1 Many of these cases have already been resolved by the district

court. As a result, this court has already had occasion to consider

various other aspects of this complex litigation. See, e.g., In re

Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763

(7th Cir. 2003); In re Bridgestone/Firestone, Inc., 288 F.3d 1012

(7th Cir. 2002). 

Tire, LLC (Firestone) concerning the allegedly defective

designs of certain models of Firestone tires and the Ford

Explorer are currently consolidated for pretrial proceedings in the Southern District of Indiana.1

 This matter addresses 121 of those cases. Each case was filed initially in

a district court sitting within Alabama, California, Florida,

or Mississippi by Venezuelan or Colombian nationals (or

their representatives). These plaintiffs claim that they were

injured or killed in their home countries in accidents caused

by the allegedly defective products.

 Ford and Firestone moved to dismiss the cases under

the doctrine of forum non conveniens, asserting that trial

in the courts of Venezuela and Colombia would be more

convenient. The district court denied the motions after it

concluded, among other things, that the courts of Venezuela

were not an available alternative forum, and that even

though the Colombian court system provides an adequate

alternative forum, on balance, with respect to both Venezuela and Colombia, the private and public interest favored

retention of the lawsuits in the United States. See In re

Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F.

Supp. 2d 1125 (S.D. Ind. 2002). Ford and Firestone asked

the district court to certify its order for interlocutory appeal

under 28 U.S.C. § 1292(b), but the court denied this motion

as well, concluding that Ford and Firestone had not met the

requirements for certification. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 212 F. Supp. 2d 903

(S.D. Ind. 2002). Ford and Firestone then petitioned this

court under 28 U.S.C. § 1651(a) for a writ of mandamus
No. 02-3111 3

directing the district judge either to grant their motions to

dismiss or to certify her order denying their motions to dismiss for interlocutory appeal. In an order dated November

13, 2002, we denied that petition for the reasons set forth

in this opinion.

I

Mandamus is a drastic remedy traditionally used to confine a lower court to the lawful exercise of its jurisdiction or

to compel it to exercise its authority when it has a duty to

do so. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34

(1980) (per curiam). A writ of mandamus may issue only

if the challenged order is effectively unreviewable at the

end of the case, it inflicts irreparable harm, and it “so far

exceed[s] the proper bounds of judicial discretion as to be

legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very

least, patently erroneous.” In re Rhone-Poulenc Rorer, Inc.,

51 F.3d 1293, 1295 (7th Cir. 1995). By their nature, forum

non conveniens decisions are ill-suited to this remedy. They

are instead committed to the sound discretion of the district

court, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257

(1981), and so a litigant’s right to a particular result will

rarely be “clear and indisputable.” Allied Chemical, 449

U.S. at 36. Nevertheless, even in the context of discretionary decisions, mandamus remains an appropriate remedy

if the trial judge commits a “clear abuse of discretion,” see

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383

(1953), or “patent[ ] error[ ].” Rhone-Poulenc Rorer, 51 F.3d

at 1295.

Because mandamus is not a substitute for an appeal, the

terms “clear abuse of discretion” or “patent error” are not

synonymous with the type of ordinary error that would

justify reversal in a direct appeal. See Will v. United States,

389 U.S. 90, 104 (1967) (quoting Bankers Life, 346 U.S. at
4 No. 02-3111

382, 383 (mandamus is not available for all reversible errors; the function of the writ is not to control the decision of

the trial court, but rather to confine the trial court “to the

sphere of its discretionary power”)); In re Lewis, 212 F.3d

980, 982 (7th Cir. 2000); Eisenberg v. United States District

Court, 910 F.2d 374, 375 (7th Cir. 1990); In re Ralston

Purina Co., 726 F.2d 1002, 1004-05 (4th Cir. 1984). The petitioner must demonstrate that the error is so serious that

it amounts to an abuse of the trial judge’s authority. In re

Balsimo, 68 F.3d 185, 186-87 (7th Cir. 1995); Rhone-Poulenc

Rorer, 51 F.3d at 1295; In re Moore, 776 F.2d 136, 139 (7th

Cir. 1985); In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995).

We find no such abuse of authority in the district court’s

decision here. The nonstatutory doctrine of forum non

conveniens permits a case to be dismissed if trial in the

plaintiff’s chosen forum would be oppressive and vexatious

to the defendant, out of all proportion to the plaintiff’s

convenience, and if it is also true that an alternative foreign

forum exists. Piper Aircraft, 454 U.S. at 241. In determining

whether to dismiss, courts consider whether an adequate

alternative forum is available to hear the case, and whether

various private and public interest factors clearly indicate

that the suggested alternative forum is superior. Kamel v.

Hill-Rom Co., Inc., 108 F.3d 799, 802-03 (7th Cir. 1997).

The private interest factors considered are “the relative

ease of access to sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view 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.” Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 508 (1947); see also Kamel, 108 F.3d at 803. The

public interest factors include “the administrative difficulties stemming from court congestion; the local interest in

having localized disputes decided at home; the interest in

having the trial of a diversity case in a forum that is at
No. 02-3111 5

home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of laws or in the

application of foreign law; and the unfairness of burdening

citizens in an unrelated forum with jury duty.” Kamel, 108

F.3d at 803 (citing Piper Aircraft, 454 U.S. at 241 n.6). The

defendant carries the burden of persuading the district

court that a lawsuit should be dismissed on forum non

conveniens grounds. Ford v. Brown, 319 F.3d 1302, 1311

(11th Cir. 2003); Aguinda v. Texaco, Inc., 303 F.3d 470, 476

(2d Cir. 2002); Iragorri v. United Techs. Corp., 274 F.3d 65,

71 (2d Cir. 2001) (en banc). 

The first question the court resolved was whether the

courts of Venezuela provide an adequate alternative forum

for that group of plaintiffs. Resolving a conflict in expert

testimony, the judge decided that they did not. Whether her

ultimate decision to credit the testimony of the plaintiffs’

expert, Tatiana B. deMaekelt, who opined that the Venezuelan courts would lack subject matter jurisdiction over

these cases, was correct is not the issue. As the Supreme

Court held in Von Cauwenberghe v. Biard, 486 U.S. 517

(1988), orders denying motions to dismiss for forum non

conveniens are normally reviewed only after final judgment

in a case. Our present task in deciding whether to issue a

writ of mandamus is only to determine whether the trial

judge usurped her authority. Here, where the court took the

question before it seriously, gave careful consideration to

the relevant factors that bear on a forum non conveniens

motion, and came to a reasoned conclusion, there is no sign

of such abuse.

Although the district court could have rested its decision

with respect to the Venezuelan cases solely on its determination of the availability of that country’s courts, it did not

do so. Instead, it took the precaution of assuming for the

sake of argument that Venezuela’s courts were available

and it turned to the second part of the inquiry: the balanc-
6 No. 02-3111

ing of public and private interests. This step was necessary

in any event for the Colombian plaintiffs, because everyone

agreed that the Colombian courts were available. On balance, the court concluded, all of the cases should remain in

the United States.

Once again, Ford and Firestone have confused the kinds

of arguments they might make after a final judgment has

been entered and those that are relevant to considering a

petition for a writ of mandamus. They urge, for example,

that the district court gave too much weight to the foreign

plaintiffs’ choice of forum. The district court was aware that

this was a significant issue in the case, given the interplay

between two treaties and the forum non conveniens doctrine. The treaties (the Treaty of Peace, Friendship, Navigation, and Commerce, June 20, 1836, U.S.-Venez., art. XIII,

8 Stat. 466; and the Treaty of Peace, Amity, Navigation,

and Commerce, Dec. 12, 1846, U.S.-Colom. (then Republic

of New Granada), art. XIII, 9 Stat. 881) are essentially

identical. Both provide that the courts of the signatory nations shall be “open and free” to the other’s citizens “on

the same terms which are usual and customary with the . . .

citizens of the country in which they may be. . . .” In short,

citizens of treaty countries are entitled to treatment equivalent to that given to U.S. citizens when they appear in

courts in the United States.

The district court acknowledged that, while there is usually a strong presumption in favor of the plaintiff’s choice

of forum, the strength of the presumption is tempered when

the plaintiff is a foreign national suing in the United States.

See Piper Aircraft, 454 U.S. at 255. It chose to follow the

approach of the Second Circuit in Iragorri v. United Technologies Corp., 274 F.3d 65, 69 n.2 (2d Cir. 2001) (en banc),

under which expatriate U.S. nationals and treaty nationals

residing in their home countries are entitled to the same

degree of deference on their choice of forum as U.S. plain-
No. 02-3111 7

tiffs enjoy, but with the consideration that suing in the

United States while residing in a foreign country is less

likely to be convenient. In the absence of contrary authority

from this court (and there is none), this too was a reasoned

and responsible analysis which would be subject to appellate review at the end of the case.

The petitioners also raise other arguments, but they all

amount to disagreements with the way the court applied

the established legal tests. At best, Ford and Firestone

may have identified some close calls on questions like the

balance between local interests and national interests, or

the inconvenience posed by the fact that relevant evidence

will be located abroad and will be in the Spanish language.

But, to repeat the point, the mandamus remedy is not appropriate for correcting a close call about how to apply

particular facts to the law. Otherwise, we would have nothing left of the final judgment rule.

II

Finally, Ford and Firestone ask us to order the trial judge

to certify her order denying their motions to dismiss for interlocutory review under 28 U.S.C. § 1292(b). To certify, the

district court must find that the order presents a “controlling question of law as to which there is substantial ground

for difference of opinion and that an immediate appeal from

the order may materially advance the ultimate termination

of the litigation.” 28 U.S.C. § 1292(b); Ahrenholz v. Bd. of

Trustees of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir.

2000). Ford and Firestone presented five issues for certification:

(1) Whether the denial of forum non conveniens-based

dismissal of these cases is consistent with relevant

precedents holding that the United States is an in-
8 No. 02-3111

convenient forum for products liability cases involving

foreign accidents brought by foreign plaintiffs.

(2) Whether a foreign forum may be held to be unavailable solely because of plaintiffs’ refusal to file suit in

that forum, where the accidents occurred and in

which plaintiffs reside.

(3) Whether treaties of friendship between the United

States and Venezuela and Colombia require the Court

to accord a greater level of deference to a foreign

plaintiff who chooses to file suit in the United States.

(4) Whether the Court must analyze the local interests of

the forum state in any trial, rather than the general

interest of the United States as a whole. 

(5) Whether Fed. R. Civ. P. 44.1 permits the Court to set

aside expert submissions on foreign law questions on

credibility grounds.

212 F. Supp. 2d at 906 (emphasis in original). The district

court found that questions (1) and (2) were not abstract

legal issues certifiable under § 1292(b); that (3) was not a

controlling question of law as to which there is substantial

ground for difference of opinion; and that (4) and (5) were

not controlling questions of law because reversal on either

ground would not affect the decision not to dismiss. The

court additionally found that interlocutory review would not

materially advance the ultimate termination of the litigation because the parties would be no closer to resolving

their disputes if the suits were dismissed for forum non

conveniens.

Certification by the district court is a jurisdictional prerequisite to interlocutory review under § 1292(b), and normally the district court’s refusal to certify is the end of the

matter in this court. Hewitt v. Joyce Beverages of Wis., Inc.,

721 F.2d 625, 626 (7th Cir. 1983). Most courts have held

that mandamus is not appropriate to compel a district court
No. 02-3111 9

to certify under § 1292(b). See In re Phillips Petroleum Co.,

943 F.2d 63, 67 (Temp. Emer. Ct. App. 1991); Arthur Young

& Co. v. United States District Court, 549 F.2d 686, 698 (9th

Cir. 1977); In re Cessna Aircraft Distributorship Antitrust

Litig., 518 F.2d 213, 216-17 (8th Cir. 1975); In re Maritime

Serv. Corp., 515 F.2d 91, 92 (1st Cir. 1975) (per curiam);

Plum Tree, Inc. v. Stockment, 488 F.2d 754, 755 n.1 (3d Cir.

1975); Leasco Data Processing Equip. Corp. v. Maxwell, 468

F.2d 1326, 1344 (2d Cir. 1972). See also 16 CHARLES ALAN

WRIGHT,ARTHUR R.MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3929, at 373 & n.31 (2d ed.

1996); Note, Interlocutory Appeals in the Federal Courts

under 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607, 616-17

(1975). We agree. This wealth of authority exists for a very

good reason. The whole point of § 1292(b) is to create a dual

gatekeeper system for interlocutory appeals: both the

district court and the court of appeals must agree that the

case is a proper candidate for immediate review before the

normal rule requiring a final judgment will be overridden.

If someone disappointed in the district court’s refusal to

certify a case under § 1292(b) has only to go to the court of

appeals for a writ of mandamus requiring such a certification, there will be only one gatekeeper, and the statutory

system will not operate as designed. 

In the past, we have not ruled out the possibility of a writ

of mandamus in the § 1292(b) context for a truly egregious

situation, if it seemed that the district court was seriously

abusing its authority, see Anschul v. Sitmar Cruises, Inc.,

544 F.2d 1364, 1369 (7th Cir. 1976) (per curiam) (quoting

Parkinson v. April Indus., Inc., 520 F.2d 650, 660 (2d Cir.

1975) (Friendly, J., concurring)). But the way to secure

appellate consideration in such a situation is not by seeking

a writ of mandamus to require the district court to certify

something under § 1292(b). It is simply to file a petition
10 No. 02-3111

for a writ of mandamus directed to the underlying problem.

And so we end up right where we started, evaluating

whether this particular case is one that warrants extraordinary measures. 

Ford and Firestone do not contend that the district court

denied certification for an improper purpose; nor do they

contend that the district court applied an incorrect legal

standard. Rather, they argue only that the district court

failed to appreciate the magnitude of this case, and in so

doing, it “misapplied” the statute. They assert that the

grounds for intermediate review in this case are so strong

that mandamus is appropriate to compel certification, and

they remind us that Von Cauwenberghe confirmed that

§ 1292(b) is an appropriate avenue to review orders denying

forum non conveniens motions. 486 U.S. at 529-30. But Von

Cauwenberghe holds only that orders denying motions to

dismiss for forum non conveniens do not fall within the

collateral order doctrine of Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), and thus that some other

avenue for interlocutory relief, such as a § 1292(b) certification, must be used. 486 U.S. at 527. It comes nowhere close

to holding that district courts will abuse their discretion if

they deny § 1292(b) certifications when they have rejected

motions to dismiss for forum non conveniens.

III

This case is one, like many in today’s world, that touches

more than one country. The tires and vehicles were designed and manufactured in the United States, and they

were used in another country. People were injured outside

of the United States. Reasonable people can disagree on the

question of which country’s courts will provide the optimal

forum for litigating these issues. The district court here, for

the reasons we have explained, did not abuse her discretion

so gravely as to warrant the exercise of our mandamus
No. 02-3111 11

powers to force a different result. We therefore DENY the

petition for a writ of mandamus.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-12-03