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NO IN RE PIRELLI TIRE

VIEWS: 6 PAGES: 31

									                               NO. 04-1129


                                   IN THE
                          S UPREME COURT OF TEXAS



                       IN R E P IRELLI TIRE , L.L.C.



                Original Proceeding from No. 2003-03-1350-E,
            Maria Magdalena Meza-Aran v. Pirelli Tire Corporation,
                   f/k/a Pirelli Armstrong Tire Corporation

                On Appeal from the Thirteenth Court of Appeals
                           at Corpus Christi, Texas




              PETITION FOR WRIT OF M ANDAMUS



    C. VERNON H ARTLINE, JR.                DEBORA B. ALSUP
    SCOTT G. EDWARDS                        GRETCHEN E. NEUSEL
    J. GREGORY W HITTEN                     THOMPSON & KNIGHT LLP
    H ARTLINE , D ACUS, B ARGER,            98 San Jacinto Blvd., Suite 1900
    DREYER & K ERN , L.L.P.                 Austin, Texas 78701-4238
    Suite 1000                              (512) 469-6100
    6688 North Central Expressway           (512) 469-6180 Fax
    Dallas, Texas 75206
    (214) 369-2100
    (214) 369-2118 Fax

                      COUNSEL FOR RELATOR

ORAL ARGUMENT R EQUESTED
                      IDENTITY OF PARTIES & COUNSEL

Relator

PIRELLI TIRE, L.L.C.

Represented by:

Debora B. Alsup
Gretchen E. Neusel
Thompson & Knight LLP
98 San Jacinto Boulevard, Suite 1900
Austin, Texas 78701-4238
(512) 469-6111
(512) 469-6180 Fax

C. Vernon Hartline, Jr.
Scott G. Edwards
J. Gregory Whitten
Hartline, Dacus, Barger, Dreyer & Kern, L.L.P.
6688 North Central Expressway, Suite 1000
Dallas, Texas 75206
(214) 369-2100
(214) 369-2118 Fax

Eduardo R. Rodriguez
Joseph A. Rodriguez
Rodriguez, Colvin, Chaney & Saenz, L.L.P.
1201 East Van Buren
Brownsville, Texas 78522
(956) 542-7441
(956) 541-2170 Fax

Respondent

The Honorable Leonel Alejandro
Judge Presiding, 357th District Court
Cameron County Courthouse, 3 rd Floor
974 E. Harrison Street
Brownsville, Texas 78520
(956) 548-9522
(956) 548-9545




                                            i
Real Parties in Interest/Plaintiffs

MARIA MAGDALENA MEZA-ARAN, DAMIAN HERNANDEZ-MEZA, AND
FELIPA ARAN LIMAS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF VALENTIN HERNANDEZ ARAN, DECEASED

Represented by:

Victor M. Carrera
Reed, Carrera & McLain, L.L.P.
1 Paseo Del Prado, Building 101
Edinburg, Texas 78539
or
P. O. Box 9702
McAllen, Texas 78502-9702
(956) 631-5444
(956) 631-9187 Fax




                                      ii
                                                 TABLE OF CONTENTS

                                                                                                                                         Page

IDENTITY OF PARTIES & COUNSEL................................................................................... i

RECORD – LIST OF EXHIBITS ...............................................................................................v

TABLE OF AUTHORITIES ......................................................................................................vi

STATEMENT OF THE CASE.................................................................................................. ix

REQUEST FOR ORAL ARGUMENT.................................................................................... ix

STATEMENT OF JURISDICTION ......................................................................................... ix

ISSUE PRESENTED....................................................................................................................x

STATEMENT OF FACTS.......................................................................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................................ 4

ARGUMENTS AND AUTHORITIES ..................................................................................... 5

I.        Mandamus is Necessary Because Pirelli has No Adequate Appellate Remedy. ...... 5

          A.        New federal and state mandamus decisions favor mandamus........................ 6

          B.        Appellate jurists urge that mandamus be granted in venue matters
                    involving foreign suits. ........................................................................................ 9

          C.        Texas precedent supports mandamus review of forum non
                    conveniens rulings. ............................................................................................. 10

          D.        The trial court’s forum non conveniens decision impacts due process
                    rights. ................................................................................................................... 11

          E.        Comity requires that mandamus issue in this case......................................... 12

II.       Respondent Committed a Clear Abuse of Discretion in Denying Pirelli’s Motion
          to Dismiss on Grounds of Forum Non Conveniens. .................................................. 14

CONCLUSION AND PRAYER .............................................................................................. 15

CERTIFICATE OF SERVICE ................................................................................................. 17


                                                                      iii
                                     TABLE OF CONTENTS – Continued
                                                                                                                                Page

VERIFICATION ........................................................................................................................ 18

APPENDIX

VERIFICATION TO APPENDIX




                                                                  iv
                           RECORD – LIST OF EXHIBITS

TAB

A      Plaintiffs’ Second Amended Original Petition, December 13, 2003

B      Defendant Pirelli Tire, L.L.C.’s Motion to Dismiss on Grounds of Forum Non
       Conveniens, Special Exceptions and Original Answer, April 10, 2003

C      Pirelli Tire, L.L.C.'s Motion to Dismiss on Grounds of Forum Non Conveniens,
       February 24, 2004

D      Pirelli Tire, L.L.C.’s Motion to Apply the Law of Mexico, February 24, 2004,
       and Supplement to Evidence in Support of Motion to Apply the Law of Mexico,
       March 17, 2004

E      Plaintiff's Response to Defendant Pirelli's Motion to Dismiss on Grounds of
       Forum Non Conveniens and Motion to Apply the Law of Mexico, March 25, 2004

F      Pirelli Tire, L.L.C.'s Reply to Plaintiff's Response to Defendant Pirelli's Motion to
       Dismiss on Grounds of Forum Non Conveniens and Motion to Apply the Law of
       Mexico, April 1, 2004

G      Transcript of hearing on Pirelli's Motion to Dismiss, April 1, 2004

H      Order Denying Pirelli's Motion to Dismiss for Forum Non Conveniens and Motion
       to Apply the Law of Mexico, May 12, 2004

I      Pirelli Tire, L.L.C.'s Motion to Reconsider Denial of Motion to Dismiss on
       Grounds of Forum Non Conveniens and Motion to Apply the Law of Mexico,
       June 18, 2004

J      Plaintiffs' Response to Defendant Pirelli's Motion for Reconsideration, July 2,
       2004

K      Order Denying Pirelli's Motion for Reconsideration, July 27, 2004 (withdrawn)

L      Order Setting September 9, 2004 Hearing on Pirelli’s Motion for Reconsideration

M      Docket Sheet reflecting Denial of Motion for Reconsideration on September 9,
       20041

N      Judgment and Memorandum Opinion, In Re Pirelli, Cause No. 13-04-00584-CV
       (Tex. App.–Corpus Christi, Dec. 3, 2004)


       1
            The hearing transcript for the September 9, 2004 hearing on Pirelli’s Motion for
Reconsideration has been ordered and the record will be supplemented once it is received.

                                             v
                                            TABLE OF AUTHORITIES

                                                             CASES

In re AIU Ins. Co.,
       148 S.W.3d 109 (Tex. 2004)........................................................................................... 6

In re Automated Collection Technologies, Inc.,
       48 Tex. Sup. Ct. J. 162, 2004 Tex. LEXIS 1250 (Dec. 3, 2004)................................ 7

Baker v. Bell Helicopter Textron, Inc.,
      985 S.W.2d 272 (Tex. App.–Fort Worth 1999, pet. denied)...............................14, 15

In re Bridgestone/Firestone & Ford Motor Co. Tire Litigation,
       138 S.W.3d 202 (Tenn. Ct. App. 2003)....................................................................... 11

Delgado v. Shell Oil Co.,
      231 F.3d 165 (5th Cir. 2000)......................................................................................... 13

Dominguez-Cota v. Cooper Tire & Rubber Co.,
     284 F. Supp. 2d 444 (N.D. Miss. 2003)....................................................................... 11

Dow Chem. Co. v. Alfaro,
     786 S.W.2d 674 (Tex. 1990)......................................................................................... 11

Feltham v. Bell Helicopter Textron, Inc.,
      41 S.W.3d 384 (Tex. App.–Ft. Worth 2001, no pet.) ................................................ 14

Gonzalez v. Chrysler Corp.,
     301 F.3d 377 (5th Cir. 2002)...................................................................................11, 13

Hernandez v. Bridgestone/Firestone,
     No. C-093-02-F, 332nd Judicial District Court of Cameron County,
     May 5, 2004..................................................................................................................... 11

In re Masonite Corp.,
       997 S.W.2d 194 (Tex. 1999)........................................................................................... 6

In re McClelland Eng’rs, Inc.,
       742 F.2d 837 (5th Cir. 1984)......................................................................................... 11

McClelland Eng'rs, Inc. v. Munusamy,
     784 F.2d 1313 (5th Cir. 1986) ...................................................................................... 13



                                                                  vi
Morales v. Ford Motor Co.,
      313 F. Supp. 2d 672 (S.D. Tex. 2004)......................................................................... 11

Palko v. Connecticut,
      302 U.S. 319 (1937)....................................................................................................... 12

Piper Aircraft Co. v. Reyno,
      454 U.S. 235 (1981)....................................................................................................... 15

Polaris Inv. Mgmt. v. Abascal,
      890 S.W.2d 486 (Tex. App. –San Antonio 1994, orig. proceeding)........................ 10

In re Prudential Insurance Co. of America,
       148 S.W.3d 124 (Tex. 2004)....................................................................................... 8, 9

In re Smith Barney, Inc.,
       975 S.W.2d 593 (Tex. 1998)............................................................................ 10, 11, 14

Steddum v. Kirby Lumber Co.,
      221 S.W. 920 (Tex. 1920) ............................................................................................. 12

Torreblanca de Aguilar v. Boeing Co.,
      806 F. Supp. 139 (E.D. Tex. 1992) .............................................................................. 11

Travelers Indem. Co. of Conn. v. Mayfield,
      923 S.W.2d 590 (Tex. 1996)........................................................................................... 8

United Mexican States v. Ashley,
      556 S.W.2d 784 (Tex. 1977)......................................................................................... 12

Urena Taylor v. Daimler Chrysler Corp.,
      196 F. Supp. 2d 428 (E.D. Tex. 2001)......................................................................... 11

Vasquez v. Bridgestone/Firestone, Inc.,
      325 F.3d 665 (5th Cir. 2003)............................................................................ 11, 13, 15

In re Volkswagen AG,
       371 F.3d 201 (5th Cir. 2004)........................................................................................... 9

Walker v. Packer,
      827 S.W.2d 833 (Tex. 1992)....................................................................................... 6, 8

In re Western Aircraft, Inc.,
       2 S.W.3d 382 (Tex. App.–San Antonio 1999, orig. proceeding) .....................6, 9, 10


                                                               vii
                                                 RULES AND STATUTES

TEX . CIV. P RAC. & R EM. CODE § 71.051...................................................................... 4, 14, 15

TEX . R. CIV. P. 71 ......................................................................................................................... 4




                                                                     viii
                             STATEMENT OF THE CASE

       Nature of the case. The underlying wrongful death action arose out of a one-

vehicle accident in Mexico involving a Mexican-registered pickup truck driven by a

Mexican citizen, and carrying a Mexican passenger. The accident was investigated by

the Mexican police and medical examiner. Plaintiffs sued in Cameron County, Texas,

asserting wrongful death and survival claims against Pirelli, the manufacturer of a tire on

the vehicle. Trial is set for April 25, 2004.

       Trial court. The 357th Judicial District Court of Cameron County, Texas, with

The Honorable Leonel Alejandro presiding.

       Trial court disposition. The trial court denied Pirelli’s Motion to Dismiss for

Forum Non Conveniens and alternative Motion to Apply the Law of Mexico on May 12,

2004. It denied Pirelli’s Motion for Reconsideration on September 9, 2004.

       Court of Appeals disposition. The Court of Appeals, Thirteenth District of Texas,

denied the petition for mandamus styled In re: Pirelli, No. 13-04-00584-CV, by Order

dated December 3, 2004, received on December 9, 2004.

                         REQUEST FOR ORAL ARGUMENT

       Relator requests oral argument on this petition for mandamus.

                          STATEMENT OF JURISDICTION

       This court has jurisdiction over this petition for mandamus under § 22.002 of the

Texas Government Code.




                                                ix
                                  ISSUE PRESENTED

       Texas law of forum non conveniens requires dismissal of suits brought in Texas by

foreign plaintiffs whose claims have no legitimate connection to Texas. The underlying

action involves a wrongful death claim brought by Mexican citizen plaintiffs arising from

an auto accident in Mexico. Because Texas has no legitimate connection with the claims

made in this suit, did the trial court commit a clear abuse of discretion for which there is

no adequate appellate remedy, in refusing to dismiss the case for forum non conveniens

and alternatively, in failing to allow the choice of Mexican law?




                                             x
                                   STATEMENT OF FACTS

       The Accident. This products liability suit stems from a June 28, 2002 one-car

accident in Mexico. 2 (R. Tab A and App. 1) Two Mexican citizens, Valentin Hernandez

Aran and Juan Benitez Mendoza, were driving a 1988 Chevrolet pickup truck on a

Mexican highway between San Fernando and Reynosa, Tampaulipas, Mexico, when the

accident occurred. The pickup was being used in a Mexican seafood transportation

business and was overloaded with a cargo of seafood weighing over 2,500 pounds. (Ex. 5

to R. Tab E) According to the Mexican police report, the driver was speeding on a level

two-lane road when the truck’s right rear tire failed, the driver overcorrected, and the

truck rolled. (Ex. 2 to R. Tab C) The tire was manufactured by Pirelli in Des Moines,

Iowa, in March 1994. (Ex. 2 at 14 to R. Tab E) Pirelli is a Delaware corporation with its

principal place of business in Georgia.

       The Mexican Federal Highway Patrol responded to the accident and prepared an

accident report. Mr. Hernandez was pronounced dead by Mexican officials who arrived

at the scene. (Ex. 2 to R. Tab C) A medical examination was conducted by the Mexican

medical examiner. The Mexican police reported that Hernandez was driving when the

accident occurred, but the Plaintiffs below — relatives of Mr. Hernandez — claim that

Mr. Benitez was the driver. 3 ( App. 1) Benitez has not joined the suit.

       The Vehicle. The 1988 Chevrolet pickup truck was titled in Iowa and sold at


       2
          The Record exhibits are referenced as R. Tab __. The Appendix is referenced as App. __.
       3
          It is now believed that Mr. Benitez moved Mr. Hernandez’s body to the driver’s position after
the accident and then fled the scene because Mexican law can impose criminal penalties on the driver in
auto accidents. However, Benitez’ Mexican lawyer refuses to allow him to be deposed. (Ex. 3 to R. Tab
C)


PETITION FOR WRIT OF MANDAMUS – Page 1
auction in Searcy, Arkansas, on June 12, 2000, to R. Garza Motors of Brownsville,

Texas. (Ex. 6 at 10 to R. Tab E) Eleven days later it was sold in Brownsville to Procorro

Torres, a citizen and resident of Mexico, who imported the truck into Mexico that same

day. (Ex. A to R. Tab I) Thus, in the vehicle’s sixteen-year history, it was in Texas, at

most, 11 days, which is its only Texas connection. Neither the Texas reseller nor the

Mexican importer are parties to this suit.4 From June 23, 2000, until the date of the

accident in June, 2002, two years later, the vehicle was used, maintained, and serviced in

Mexico. (Ex. 1 at 10 to R. Tab C)

       The Key Witnesses. A critical witness, Juan Benitez Mendoza, is the only direct

fact witness to the accident. He has unique knowledge of who was driving the truck, the

eve nts inside the truck, its speed at the time of the accident, the condition of the tires

before the trip, and whether the tires were inspected during the trip. He is a Mexican

citizen and resident and cannot be compelled to testify in the United States. His Mexican

attorney refuses to allow Benitez to be deposed. (Ex. 3 to R. Tab C) Flavi o Alfredo

Torres, the operator of the Mexican seafood business, has unique knowledge of how the

truck was loaded at the time of the accident and how it had been loaded, used, and

maintained for the two years before the accident. He may have information on the

driving ability or lack thereof of Hernandez — he may even have information on who

was driving at the time of the accident. Likewise, he is a Mexican citizen/resident and his

deposition has been refused by his Mexican lawyer, who also represents Benitez. Id.


       4
             The Texas reseller, R. Garza Motors, was originally a defendant, but was nonsuited by
Plaintiffs in consideration of Pirelli’s agreement not to seek removal of the case. (Ex. 8 to R. Tab E)


PETITION FOR WRIT OF MANDAMUS – Page 2
Procorro Torres, the importer of the vehicle into Mexico two years before the accident,

will have knowledge about the condition of the truck and tires at the time of purchase and

whether the tires were ever replaced. He is a Mexican citizen and resident and outside

the subpoena power of the court. Carlos Alberto Torres, the registered owner of the

truck, should have knowledge of the use of the vehicle and tire, as well as their

maintenance and repair history.        He has submitted an inadmissible “Statement,” but

likewise will not testify or be cross-examined. (Id.; Ex. 7 to R. Tab E)

       These four critical witnesses, all Mexican citizens and residents, are essential to

Pirelli’s defense, but all have refused to testify. Furthermore, they are outside the control

of Plaintiffs’ counsel, who has indicated that he cannot produce them for deposition or

trial. (Ex. 4 to R. Tab C) Their Mexican lawyer, Austreberto Tello Jerez, has agreed to

talk to Pirelli counsel only if Pirelli gives him $5,000.00 (US) and a laptop computer,

with no guarantee that he will present the witnesses for deposition even if these demands

are met. (R. Tab I at 4; R. Tab G at 7) All other key witnesses to the accident — the

investigating officers, medical examiner, tow truck driver, persons who repaired the tire

— are also Mexican citizens and residents who are outside the subpoena power of the

trial court.5 Plaintiff Mrs. Felipe Aran Limas has refused to appear for deposition in

Texas even though she filed suit here. (Ex. 7 to R. Tab C)

       Pirelli’s forum non conveniens and choice of law motions. Despite the fleeting

connection with Texas, Plaintiffs filed suit in Cameron County. (App. 1; R. Tab A)


       5
           Although the police officer and medical examiner have now been deposed, their attendance
cannot be compelled at a Texas trial.


PETITION FOR WRIT OF MANDAMUS – Page 3
Pirelli timely filed a Motion to Dismiss on Grounds of Forum Non Conveniens with its

Original Answer on April 10, 2003.6 (App. 2; R. Tab B) On February 24, 2004, Pirelli

filed further briefing in support of its Motion to Dismiss on Grounds of Forum Non

Conveniens. (R. Tab C) It also filed a Motion to Apply the Law of Mexico, in the

alternative. (R. Tab D) At the hearing on these motions, Pirelli agreed to submit to the

jurisdiction of the Mexican courts and stipulated to the use of documentary evidence

from Mexico and enforceability of a judgment in a Mexican court. (R. Tab G at p. 12; R.

Tab I at p. 5) Nonetheless, the trial court entered an order denying both motions. (R. Tab

H) Pirelli subsequently filed a Motion for Reconsideration, which was likewise denied

on September 9, 2004.7 The Corpus Christi Court of Appeals denied Pirelli’s petition for

mandamus by order dated December 3, 2004, which was received on December 9, 2004.

(App. 8; R. Tab N)

                              SUMMARY OF THE ARGUMENT

        This case has virtually no relationship with Texas other than Plaintiffs choosing to

sue here. The Plaintiffs and their decedent are Mexican citizens and residents. The

accident occurred on a Mexican highway, was investigated by Mexican police, a Mexican


        6
           Plaintiffs objected to the timeliness of Pirelli’s forum non conveniens motion in their Response,
R. Tab E. But Pirelli timely filed its motion concurrently with its answer, thus meeting the 180-day
deadline for forum non conveniens dismissal requests under TEX . CIV. P RAC. & REM . CODE § 71.051(d).
In its Motion to Dismiss, it noted that it would later file a brief in support. App. 2 at n.1. Pirelli
submitted the further briefing on February 24, 2004, which it labeled Motion to Dismiss on Grounds of
Forum Non Conveniens. R. Tab 3. The substance of a pleading is controlling, not its title, see TEX . R.
CIV. P. 71.
         7
           See July 27, 2004 Order, attached at App. 5, R. Tab K. The July 27, 2004 Order was withdrawn
by the trial court when it re-opened the issue and set a September 9, 2004 hearing on Pirelli’s motion for
reconsideration. See Order Setting Hearing at R. Tab L. The docket sheet reflects denial of Pirelli’s
Motion for Reconsideration on September 9, 2004, although no written order was entered. App. 6. The
transcript from the September 9, 2004 hearing has been requested, but not yet received.


PETITION FOR WRIT OF MANDAMUS – Page 4
medical examiner analyze d the injuries to the deceased Plaintiff, all witnesses to the

accident are in Mexico, and the 1988 Chevrolet pickup truck was registered and

maintained in Mexico for the two years prior to the accident. In the vehicle’s 16-year

history, its only Texas connection is an 11-day presence in Brownsville before it was

resold to a Mexican citizen. The key Mexican witnesses have refused to give testimony

and one of the Plaintiffs will not come to Texas for deposition even though she sued here.

The Mexican attorney representing many of the critical witnesses has demanded a payoff

before he will agree to talk to Pirelli’s counsel. Nonetheless, suit was filed in Cameron

County, Texas, where the trial court refused to dismiss the case under forum non

conveniens and alternatively, refused to apply Mexican law.

       Exceptional circumstances exist to warrant mandamus review because if the

Cameron County trial court retains jurisdiction, it will deprive Pirelli of access to

discovery, evidence, and the ability to compel witnesses from Mexico for trial. Thus,

Pirelli’s substantive due process rights will be trampled because it cannot adequately

defend itself under the circumstances of this foreign accident case. Ordinary appellate

review is illusory in this instance because before it may be obtained, Pirelli will have to

endure the very harm that the Texas forum non conveniens statute was designed to

prevent — trial in a fundamentally unfair forum. The brazen forum shopping evidenced

here should not be countenanced by this Court.

                          ARGUMENTS AND AUTHORITIES

I.     Mandamus is Necessary Because Pirelli has No Adequate Appellate Remedy.

                        .
       Standard of Review The standards for mandamus are well known. To grant


PETITION FOR WRIT OF MANDAMUS – Page 5
relief, there must be a clear abuse of discretion and no adequate remedy on appeal.

Walker v. Packer, 827 S.W.2d 833, 839, 842 (Tex. 1992). A trial court clearly abuses its

discretion if it reaches a decision so arbitrary and unreasonable that it constitutes a clear

and prejudicial error of law. Id. at 839. That is the case here.

       Appeal is not an adequate remedy in this case because the trial court has acted

with such disregard for guiding principles of law that the harm to Pirelli is irreparable.

See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999).               The circumstances

presented are exceptional — the Plaintiffs and all critical witnesses are Mexican residents

and citizens, many who refuse to testify without a payoff to their Mexican lawyer. There

is no connection to Texas other than the pickup truck briefly passing through the state

two years ago as it was sold to a Mexican citizen in Brownsville. The adverse ruling on

forum non conveniens has placed Pirelli in the position of permanently losing a

substantial right — the constitutional due process right to adequately defend itself at trial.

See In re Western Aircraft, Inc., 2 S.W.3d 382, 385 (Tex. App.–San Antonio 1999, orig.

proceeding) (Green, J., concurring). This Court in Masonite observed that mandamus

standards do not require it “to turn a blind eye to blatant injustice.” 997 S.W.2d at 198.

Pirelli urges this Court to act to correct the blatant injustice here.

       A.     New federal and state mandamus decisions favor mandamus.

       Several recent mandamus decisions from this Court and the Fifth Circuit lend

support for a grant of mandamus here.

       1. In re AIU. Mandamus was issued in In re AIU Ins. Co., 148 S.W.3d 109 (Tex.

2004) to correct the wrongful denial of a motion to dismiss based on a contractual forum


PETITION FOR WRIT OF MANDAMUS – Page 6
selection clause. Although the Court acknowledged that it has not generally granted

mandamus to correct venue decisions, it did so in AIU because failure to do so would

vitiate and render illusory the subject matter of the appeal.8 Id. at 115, 118. The Court

analogized its decisions granting mandamus in the arbitration context as “another type of

forum-selection clause.” Id. at 115. Indeed, the considerations are similar in forum

selection clauses, arbitration, and this foreign forum non conveniens case — the question

is whether trial in the wrong forum is fundamentally unfair.

       The opposing party argued in AIU that appeal was an adequate remedy and

mandamus was not appropriate. But the Court recognized that “[s]ubjecting a party to

trial in a forum other than that agreed upon and requiring an appeal to vindicate the rights

granted in a forum-selection clause is clear harassment. There is no benefit to either the

individual case or the judicial system as a whole.” Id. at 117. This is true in the present

case because trial in Texas — when all forum non conveniens and choice-of-law factors

call for Mexico as a forum with applicable Mexican law — is fundamentally unfair.

Pirelli’s inability to defend itself under the circumstances of this case infringe on its most

basic due process rights. Requiring Pirelli to try this case in Texas without the ability to

compel the presence of crucial Mexican witnesses would result in a sham trial. The

refusal of the trial court to dismiss this case in favor of a Mexican forum, and the refusal

to apply Mexican law, is error so harmful that it is irreparable and cannot be cured by

appeal. Failure to grant mandamus under the exceptional facts presented would vitiate


       8
         See also In re Automated Collection Technologies, Inc., 48 Tex. Sup. Ct. J. 162, 2004 Tex.
LEXIS 1250 (Dec. 3, 2004).


PETITION FOR WRIT OF MANDAMUS – Page 7
and render an appeal illusory.

       The AIU opinion further examines the various contexts in which this Court has

allowed mandamus. It did so in Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d

590 (Tex. 1996) because requiring a party to advance litigation costs of its opponent “so

skews the litigation process that any subsequent remedy by appeal is inadequate.” Id. at

595. And the Court recognized in the seminal decision of Walker v. Packer, 827 S.W.2d

833 (Tex. 1992), that mandamus should issue in the discovery context “where the party’s

ability to present a viable claim or defense at trial is vitiated or severely compromised. .

. .” Id. at 843. The mandamus principles established in those cases are applicable in

spades. The litigation process is wholly skewed in this case and Pirelli’s ability to defend

itself is vitiated or severely compromised.

                         l.
       2. In re Prudentia This Court also granted mandamus in In re The Prudential

Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) involving a contractual waiver of the right

to jury trial. It recognized that: “Mandamus review of significant rulings in exceptional

cases may be essential to preserve important substantive and procedural rights from

impairment or loss . . . and spare private parties and the public the time and money utterly

wasted enduring eventual reversal of improperly conducted proceedings.” Id. at 136.

Such is the case under the facts here — this is an exceptional case in which a loss of

important substantive and procedural rights is threatened. Additionally, the Court opined

that “[p]rudent mandamus relief is also preferable to legislative enlargement of

interlocutory appeals. . . . As a selective procedure, mandamus can correct clear errors in

exceptional cases and afford appropriate guidance to the law without the disruption and


PETITION FOR WRIT OF MANDAMUS – Page 8
burden of interlocutory appeal.”         Id. at 137-38.     Where interlocutory appeal is not

statutorily available, as here, mandamus review is warranted. The intermediate appellate

courts have struggled with forum non conveniens rulings involving foreign accidents and

this Court’s guidance would be beneficial.

                             .
       3. In re Volkswagen AG The Fifth Circuit, in a rare exercise of its mandamus

jurisdiction, recently issued a mandamus on the denial of a motion to transfer venue in In

re Volkswagen AG, 371 F.3d. 201 (5th Cir. 2004).              There the accident was in San

Antonio, as were the numerous fact wi tnesses, including San Antonio policemen, San

Antonio emergency medical technicians, San Antonio medical personnel, and treating

physicians. Id. at 204. The Fifth Circuit found that the district court abused its discretion

in denying Volkswagen’s motion to transfer venue from Marshall, Texas to the San

Antonio division of the Western District. Id. at 206. All of the private and public interest

factors favored San Antonio, the Court found.             Id. at 204-06. As discussed below,

appellate jurists question the propriety of forum non conveniens rulings, particularly

when foreign claims are involved.

       B.     Appellate jurists urge that mandamus be granted in venue
              matters involving foreign suits.

       Texas appellate courts have struggled with the question of whether mandamus is

appropriate in forum non conveniens rulings.              Although mandamus was denied in

Western Aircraft, 2 S.W.3d 382 (Tex. App.–San Antonio 1999, orig. proceeding), Justice

Green’s concurring opinion highlights the danger involved in adverse forum non

conveniens rulings involving foreign countries:



PETITION FOR WRIT OF MANDAMUS – Page 9
               My concern is that relators actually have no adequate remedy by
       appeal . . . . [W]hen it is asserted that the proper forum is a foreign country,
       a trial court’s erroneous denial of a motion to dismiss has much b       roader
       implications than a venue ruling. Appeal cannot be an adequate remedy
       when the case should not have to be tried at all.

               When it is clear this country has no legitimate connection to events
       occurring in a foreign country, our courts should decline to accept
       jurisdiction of cases that arise out of those events . . . . [R]elators make a
       good case that it was an abuse of discretion for the trial court to refuse to
       grant the motion to dismiss. It is fundamentally unfair to require these
       relators to defend themselves in a trial, even if successful. To have to wait
       for an appellate remedy simply compounds the unfairness . . . . Without
       relief, relators will also be subject to extraordinary difficulty and undue
       expense associated with trying to prepare a case for trial in this country in
       connection with events that occurred in another country.

2 S.W.3d at 384-85.9

       Western Aircraft involved a Mexican airliner, with Mexican citizens aboard,

which crashed in Mexico while on a flight between two Mexican cities. Like the present

case, all of the plaintiffs were Mexican citizens and all of the physical evidence and

witnesses were located in Mexico. The defendants did not have their principal place of

business in Texas. Plaintiffs showed, however, that several of the plaintiffs resided in

Texas and mandamus was ultimately denied. Id. at 382, 384. The facts in the present

case are more compelling — no Plaintiffs reside in Texas and one will not even come to

Texas to be deposed. A payoff is required to speak with critical Mexican witnesses.

       C.      Texas precedent supports mandamus review of forum non
               conveniens rulings.

       This Court has considered the policy underlying forum non conveniens rulings in

In re Smith Barney, Inc., 975 S.W.2d 593 (Tex. 1998) (orig. proceeding):

       9
          See also Justice Rickoff’s concurring opinion in Polaris Inv. Mgmt. v. Abascal, 890 S.W.2d
486 (Tex. App.–San Antonio 1994, orig. proceeding).


PETITION FOR WRIT OF MANDAMUS – Page 10
       It is fundamentally unfair to burden the people of Texas with the cost of
       providing courts to hear cases that have no significant connection with the
       State. “The rule of forum non conveniens, properly used, does not prohibit
       a court from entertaining a case it ought to hear. Rather, it protects courts
       from being compelled to hear cases when doing so would be fundamentally
       unfair to the defendants or the public or both.”

Id. at 598 (quoting Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex. 1990). It is

fundamentally unfair to allow this case, with every connection to Mexico and no

connection to Texas, to proceed in a Cameron County district court. Federal courts have

routinely granted forum non conveniens motions involving accidents in Mexico and other

foreign countries.10 The Fifth Circuit likewise has indicated that mandamus relief is

available for the wrongful denial of forum non conveniens motions in egregious cases.

See In re McClelland Eng’rs, Inc., 742 F.2d 837, 839 (5th Cir. 1984). In short, the

Cameron County district court abused its discretion in failing to dismiss this foreign

accident suit.

       D.        The trial court’s forum non conveniens decision impacts due
                 process rights.

       Most striking in this case is Pirelli’s loss of its right to defend itself, which

substantially impacts its due process rights. Due process of law is a comprehensive

       10
            See Morales v. Ford Motor Co., 313 F. Supp. 2d 672 (S.D. Tex. 2004) (Venezuelan single -car
accident involving Venezuelan citizen and plaintiffs dismissed for forum non conveniens); Vasquez v.
Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (forum non conveniens dismissal appropriate
for accident in Mexico brought by Mexican plaintiffs alleging tire defect); Gonzalez v. Chrysler Corp.,
301 F.3d 377 (5th Cir. 2002) (product defect case filed by Mexican plaintiffs arising out of automobile
accident in Mexico dismissed in favor of Mexican forum); Torreblanca de Aguilar v. Boeing Co., 806 F.
Supp. 139 (E.D. Tex. 1992) (suit filed over plane crash in Mexico was properly dismissed where the only
connection to Texas was that the plane flew over the state the day before the crash); see also Urena
Taylor v. Daimler Chrysler Corp., 196 F. Supp. 2d 428 (E.D. Tex. 2001); Dominguez-Cota v. Cooper
Tire & Rubber Co., 284 F. Supp. 2d 444 (N.D. Miss. 2003). State courts have likewise granted forum non
conveniens motions to dismiss under similar circumstances. See In re Bridgestone/Firestone and Ford
Motor Co. Tire Litigation, 138 S.W.3d 202 (Tenn. Ct. App. 2003); Hernandez v. Bridgestone/Firestone,
No. C-093-02-F, 332nd Judicial District Court of Cameron County, May 5, 2004, Ex. C to R. Tab I.


PETITION FOR WRIT OF MANDAMUS – Page 11
constitutional guarantee of respect for those personal immunities that are “so rooted in

the traditions and conscience of our people as to be ranked as fundamental ” or that are

“implicit in the concept of ordered liberty.” Palko v. Conn., 302 U.S. 319, 325 (1937). It

is a fundamental tenet of due process that the opportunity of a party in a lawsuit to be

heard “must be such that he may, if he chooses, cross-examine the witnesses produced to

sustain the claim [against him], and produce witnesses to refute it, if a [fact] is in

issue….”11 Steddum v. Kirby Lumber Co., 221 S.W. 920, 921 (Tex. 1920).

       The circumstances of this case are extraordinary because all of the key fact and

damage witnesses reside in Mexico and are outside the subpoena range of the trial court.

Their lawyer has demanded that Pirelli give him money and goods in order to even speak

with them. And one of the Plaintiffs has refused to come to Texas for her deposition

even though her suit is filed here. Pirelli is therefore hamstrung — it cannot present any

direct testimony to refute Plaintiffs’ theory of the cause of the accident and cannot even

cross-examine one of the Plaintiffs. By denying Pirelli’s forum non conveniens motion,

the trial court has deprived Pirelli of its fundamental right to due process. Mandamus

should issue to correct this loss of a substantive right.

       E.      Comity requires that mandamus issue in this case.

       This Court has also granted mandamus relief where issues of comity and foreign

affairs are involved due to the risk of harm to interstate and international relations. See

United Mexican States v. Ashley, 556 S.W.2d 784 (Tex. 1977) (orig. proceeding), rev’d

       11
          Under Mexican procedural law, depositions must be taken in writing, thus depriving effective
cross-examination, which in turn impacts due process rights. Discovery in Mexico is different than that
conducted under the American legal system. See Affidavit of Professor Jose Serna de la Garza
Concerning the Laws of Tamaulipas, Mexico, ¶ VI, attached as Ex. 5 to R. Tab C.


PETITION FOR WRIT OF MANDAMUS – Page 12
sub nom. on other grounds, McClelland Eng’rs, Inc. v. Munusamy, 784 F.2d 1313 (5th

Cir. 1986). This lawsuit — filed by Mexican Plaintiffs and arising from an accident on a

Mexican highway in a Mexico-registered vehicle — clearly implicates comity and

foreign affairs concerns. Mexico has an undeniable interest in regulating the conduct of

its citizens and ensuring that they are compensated for their injuries. See Vasquez v.

Bridgestone/Firestone, Inc., 325 F.3d 665, 673 (5th Cir. 2003) (trial court correctly

dismissed case for forum non conveniens because Mexico was the proper forum for tire

defect case where accident occurred in Mexico); Delgado v. Shell Oil Co., 231 F.3d 165,

181 (5th Cir. 2000) (upholding dismissal for forum non conveniens where injury was in

Honduras. “[T]hose foreign countries obviously have an interest in protecting the rights

and welfare of their citizens.”) Another sovereign nation’s policy choices should not be

lightly dismissed. As the Fifth Circuit has observed:

       Mexico, as a sovereign nation, has made a deliberate choice in providing a
       specific remedy for this tort cause of action. In making this policy choice,
       the Mexican government 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. . . . It would be inappropriate—even patronizing—for us to
       denounce this legitimate policy choice . . . .

Gonzalez v. Chrysler Corp., 301 F.3d 377, 381-82 (5th Cir. 2002). By contrast, Texas

has no discernible interest in the claims of these non-resident foreign nationals injured

outside the U.S. who are suing for alleged defects in products that were not designed,

manufactured, sold to Plaintiffs, nor used in Texas. See Vasquez, 325 F.3d at 675.




PETITION FOR WRIT OF MANDAMUS – Page 13
II.    Respondent Committed a Clear Abuse of Discretion in Denying Pirelli’s
       Motion to Dismiss on Grounds of Forum Non Conveniens.
       Respondent’s order denying dismissal, and alternatively denying application of

Mexican law, has no support in statutory or case law. Texas Civil Practices & Remedies

Code §71.051(a) governs the forum non conveniens inquiry in this case because Plaintiffs

are all citizens and residents of Mexico.12 Under that statute, dismissal is proper if a court

finds that “the interest of justice” requires a suit to be heard in another forum. See former

TEX . CIV. P RAC. & REM. CODE §71.051(a). Under Texas’s statutory scheme, a party

moving to dismiss a lawsuit involving a foreign country plaintiff has an easier burden

than in a suit involving a foreign state plaintiff, because the same balancing of interests is

not required as under §71.051(b). See Baker v. Bell Helicopter Textron, Inc., 985 S.W.2d

272, 275 (Tex. App.–Fort Worth 1999, pet. denied).

       For a suit brought by foreign country plaintiffs to survive dismissal “in the interest

of justice” under Section 71.051(a), Smith Barney requires that it have a “significant

connection” to Texas.       975 S.W.2d at 598.         The instant lawsuit has no connection

whatsoever to Texas —other than Plaintiffs’ choice to sue here — which is blatant forum

shopping.

       Even though the standard for dismissal under §71.051(a) is easier to meet as to a

foreign country plaintiff than examination of the § 71.051(b) factors for a foreign state

plaintiff, this court may look to those factors in determining whether dismissal for forum

non conveniens is “in the interest of justice.” Feltham v. Bell Helicopter Textron, Inc., 41
       12
           In 2003, the Texas Legislature repealed Section 71.051(a) and adopted the federal forum non
conveniens standard. TEX. CIV. P RAC. & REM . CODE § 71.051(b) (Vernon 2003). This case was filed on
March 12, 2003, before the effective date of the new standard on September 1, 2003.


PETITION FOR WRIT OF MANDAMUS – Page 14
S.W.3d 384, 387 (Tex. App.–Ft. Worth 2001, no pet.); Baker, 985 S.W.2d at 277. Each

and every one of the six factors point to Mexico as the proper forum in this case. First,

an alternative forum exists in Mexico. TEX. CIV. P RAC . & REM. CODE § 71.051(b)(1).

Second, Pirelli consents to Mexico’s jurisdiction. TEX. CIV. P RAC . & R EM. CODE §

71.051(b)(4). Third, Mexico provides an adequate forum for Plaintiffs’ claims. TEX.

CIV. P RAC. & REM. CODE § 71.051(b)(2). See Vazquez, 325 F.3d at 671. In Mexico,

Plaintiffs have access to all witnesses and evidence and can choose between reparation of

damages or payment of compensation. Fourth, prosecution of this case in Texas would

work a substantial injustice to Pirelli, as discussed above . TEX . CIV. P RAC . & REM. CODE

§ 71.051(b)(3).     Pirelli has stipulated that Plaintiffs may introduce evidence and

testimony provided by Pirelli in a Mexican court, obviating concerns about the

availability of evidence in that forum. (R. Tab G at p. 12; R. Tab I at p. 5) See Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257 n.25 (1981). Fifth, the balance of private and

public interests favors Mexico as the proper forum. TEX . CIV. P RAC . & REM. C ODE §

71.051(b)(5). Sixth, the dismissal of Plaintiffs’ claims will not result in unreasonably

duplicative litigation. TEX . CIV. P RAC. & R EM. CODE § 71.051(b)(6).

                             CONCLUSION AND PRAYER

       For the foregoing reasons, Pirelli Tire, L.L.C. respectfully requests that this Court

grant its Petition for Writ of Mandamus and compel Respondent to set aside his April 28,

2003 Order and September 9, 2004 ruling on reconsideration denying Pirelli’s Motion to

Dismiss on Grounds of Forum Non Conveniens and for Reconsideration. Pirelli further

requests any other and further relief to which it may show itself justly entitled.


PETITION FOR WRIT OF MANDAMUS – Page 15
                                          Respectfully submitted,

                                          THOMPSON & KNIGHT LLP


                                          By: ________________________________
                                              Debora B. Alsup
                                              State Bar No. 90001501

                                               Gretchen E. Neusel
                                               State Bar No. 24037170

                                          98 San Jacinto Boulevard, Suite 1900
                                          Austin, Texas 78701-4238
                                          (512) 469-6100
                                          (512) 469-6180 Fax



                                          HARTLINE, DACUS, BARGER, DREYER
                                          & KERN, L.L.P.

                                               C. Vernon Hartline, Jr.
                                               State Bar No. 09159500
                                               Scott G. Edwards
                                               State Bar No. 06461480
                                               J. Gregory Whitten
                                               State Bar No. 00789727

                                          6688 North Central Expressway, Suite 1000
                                          Dallas, Texas 75206
                                          (214) 369-2100
                                          (214) 369-2118 Fax

                                          ATTORNEYS FOR RELATOR
                                          PIRELLI TIRE, L.L.C.




PETITION FOR WRIT OF MANDAMUS – Page 16
                                CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of this Petition for Writ of Mandamus

has been served by certified mail, return receipt requested, on the following Respondent

and counsel of record on this the 22nd day of December, 2004:

The Honorable Leonel Alejandro
Judge Presiding, 357th District Court
Cameron County Courthouse, 3 rd Floor
974 E. Harrison Street
Brownsville, Texas 78520

Victor M. Carrera
Reed, Carrera & McLain, L.L.P.
P. O. Box 9702
McAllen, Texas 78502-9702




                                           ________________________________
                                           Debora B. Alsup




507537 000002 AUSTIN 214798.1




PETITION FOR WRIT OF MANDAMUS – Page 17
                                     VERIFICATION

STATE OF TEXAS                §
                              §
COUNTY OF DALLAS              §

       Before me, the undersigned authority, on this day personally appeared C. Vernon

Hartline, Jr., who was duly sworn, and stated that he is one of the lawyers for Pirelli Tire,

L.L.C., that he has personal knowledge of the facts stated in this Petition, and that those

facts are true and correct.




                                          _________________________________
                                          C. Vernon Hartline, Jr.


       Subscribed and sworn to before me on December _____, 2004.


                                          _________________________________
                                          Notary Public for the State of Texas

My commission expires:

____________________




PETITION FOR WRIT OF MANDAMUS – Page 18
                                     APPENDIX

                                LIST OF EXHIBITS

TAB

1     Plaintiffs’ Second Amended Original Petition, December 13, 2003

2     Defendant Pirelli Tire, L.L.C.’s Motion to Dismiss on Grounds of Forum Non
      Conveniens, Special Exceptions and Original Answer, April 10, 2003

3     Pirelli Tire, L.L.C.'s Motion to Dismiss on Grounds of Forum Non Conveniens,
      February 24, 2004

4     Order Denying Pirelli's Motion to Dismiss for Forum Non Conveniens and Motion
      to Apply the Law of Mexico, May 12, 2004

5     Order Denying Pirelli's Motion for Reconsideration, July 27, 2004 (withdrawn and
      motion denied on September 9, 2004)

6     Order setting hearing on Pirelli’s Motion for Reconsideration for September 9,
      2004; Docket Sheet reflecting denial of Motion for Reconsideration on
      September 9, 2004

7     Texas Civil Practice & Remedies Code § 71.051

8     Judgment and Memorandum Opinion, In Re Pirelli, Cause No. 13-04-00584-CV
      (Tex. App.–Corpus Christi, Dec. 3, 2004)
                                    VERIFICATION

STATE OF TEXAS             §
                           §
COUNTY OF TRAVIS           §

      Before me, the undersigned authority, on this day personally appeared Debora B.

Alsup, one of the lawyers for Pirelli Tire, L.L.C., and after being duly sworn, stated that

the documents in this Appendix are true and correct copies of documents filed in the

underlying case or related proceedings.

                                                _____________________________
                                                Debora B. Alsup



      Subscribed and sworn to before me on December _______, 2004.



                                                _____________________________
                                                Notary Public for the State of Texas

My commission expires:

_________________________

								
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