Arnold & Itkin, L.L.P., Beck Redden LLP, Albritton Law Firm, Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields Alexander, Jas Brar and Eric Albritton v. Maria Santos Lopez Dominguez, Individually and as Next Friend of Karen Marien Andrade Lopez

Opinion

ACCEPTED 01-15-00989-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/3/2015 1:47:58 PM CHRISTOPHER PRINE CLERK

No. 01-15-00989-CV _________________________________________ FILED IN 1st COURT OF APPEALS IN THE HOUSTON, TEXAS FIRST COURT OF APPEALS 12/3/2015 1:47:58 PM at Houston CHRISTOPHER A. PRINE Clerk ______________________________________________

ARNOLD & ITKIN, LLP, ET AL. Petitioners,

v.

MARIA SANTOS LOPEZ DOMINGUEZ, ET AL. Respondents, ______________________________________________

Trial Court Cause Number 2015-28543 From the 11th Judicial District Court of Harris County, Texas ______________________________________________

RESPONDENTS’ MOTION TO DISMISS FOR LACK OF APPELLATE JURISDICTION AND RESPONSE TO PETITIONERS’ PETITION FOR PERMISSION TO APPEAL ______________________________________________

THE KASSAB LAW FIRM DOHERTY✯WAGNER LANCE CHRISTOPHER KASSAB BRETT WAGNER Texas State Bar No. 00794070 Texas State Bar No. 20654270 lck@TexasLegalMalpractice.com brett@dwlawyers.com DAVID ERIC KASSAB LARRY JOE DOHERTY Texas State Bar No. 24071351 Texas State Bar No. 05950000 dek@TexasLegalMalpractice.com larry@dwlawyers.com 1420 Alabama 13810 Champion Forest Drive, Suite 225 Houston, Texas 77004 Houston, Texas 77069 Phone (713) 522-7400 Phone (281) 583-8700 Facsimile (713) 522-7410 Facsimile (281) 583-8701

ATTORNEYS FOR RESPONDENTS IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties, and the names and addresses of all

counsel.

Defendants-Petitioners: Beck Redden LLP, Russell Post, Fields Alexander, Jas Brar, Arnold & Itkin, LLP, Kurt Arnold, Cory Itkin, Jason Itkin, Albritton Law Firm and Eric Albritton

Petitioners’ Counsel Reagan W. Simpson (Trial Court and on Appeal): YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Tel. (713) 632-8000 Fax (713) 632-8002 Counsel for Defendants-Petitioners Beck Redden LLP, Russell Post, Fields Alexander and Jas Brar

Jeremy L. Doyle James Schuelke Reynolds Frizzell LLP 1100 Louisiana, Suite 3500 Houston, Texas 77002 Counsel for Defendants-Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin

Sam Houston Scott, Clawater & Houston L.L.P. 2777 Allen Parkway, 7th Floor Houston, Texas 77019-2133 Counsel for Defendants-Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin

I John Black Daly & Black, P.C. 2211 Norfolk, Suite 800 Houston, Texas 77008 Counsel for Defendants-Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin

Billy Shepherd Allison Standish Miller Shepherd Prewett Miller PLLC 770 South Post Oak Lane, Suite 420 Houston, Texas 77056 Counsel for Defendants-Petitioners Albritton Law Firm and Eric Albritton

Plaintiffs-Respondents Maria Santos Lopez Dominguez, Individually and as next friend of Karen Marien Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade Lopez on behalf of the Estate of Omar Gerardo Andrade Zarate; Gabriel Gonzalez Toral; Jorge Arturo Jimenez Rangel; Antonio Montero Hernandez; Juan Antonio Palafox Navarrete; Leonel Fernandez Rivera; Fernando Augusto Cervera Ramirez; Libia Arredondo Chavez; individually and as Next Friend of Jorge Ricardo Barrancos Arredondo and Pedro Santiago Barrancos Arredondo on behalf of the Estate of Jorge Alonso Barrancos Dzul; Pastor Garcia Ocana; Jorge Guzman Martinez; Aldo Antonio Lopez Lorenzo and Monica Lopez; Miguel Cobos Salas, Jose Pedro Cobos Quiroz, Oscar Romero Ortega, Sergio Rosado Cortes, Sergio Solis Ponce, Martin Zuñiga Salazar, Josefa Santos Castellano, Individually and as Representative of the Estate of Benito De Los Santos, Joel Santos Ventura, Individually and as

II Representative of the Estate of Benito De Los Santos, Aleli Jiminez Perez, Individually and as Representative of the Estate of Aroer May Jimenez, Tayde Maria Pozo Roble, Individually and as Representative of the Estate of Leandro Manuel Hernandez Pozo, Miguel Hernandez Chan, Individually and as Representative of the Estate of Leandro Manuel Pozo, and Eudocio Alejandro Jacome Gomez

Respondents’ Counsel Lance Christopher Kassab (Trial Court and on Appeal) David Eric Kassab THE KASSAB LAW FIRM 1420 Alabama Houston, Texas 77004

Brett Wagner Larry Joe Doherty Ryan W. Smith DOHERTY✯WAGNER 13810 Champion Forest Drive, Suite 225 Houston, Texas 77069

III TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ……………………………………....I TABLE OF CONTENTS ....................................................................................... .IV INDEX OF AUTHORITIES..................................................................................... V PREFACE ..................................................................................................................1 RECORD REFERENCES………………………………………………………….1 STATEMENT OF THE CASE ..................................................................................2 STATEMENT OF FACTS ........................................................................................2 A. FACTUAL BACKGROUND ...................................................................................2 B. PROCEDURAL BACKGROUND ............................................................................7 ARGUMENT ...........................................................................................................10 A. THE PETITION SHOULD BE DENIED BECAUSE THE LAWYERS HAVE ALSO FILED A MANDAMUS………………………………..……………....... 10 B. THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS CONTROLLING TO THIS COURT ……………………………...……………….……….….... 11 C. THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE APPEALED IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH THERE IS A SUBSTANTIAL DIFFERENCE OF OPINION …………………………..……….... 12 D. THE PETITION SHOULD BE DENIED BECAUSE AN IMMEDIATE APPEAL WILL NOT MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION BUT WILL LEAD TO JUDICIAL INEFFICIENCY ..................................17

CONCLUSION & PRAYER ...................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22

VERIFICATION ......................................... ATTACHED TO END OF RESPONSE

APPENDIX ................................................. ATTACHED TO END OF RESPONSE

IV INDEX OF AUTHORITIES

TEXAS STATE CASES PAGE(S) Alexander v. Turtur & Assocs., 146 S.W.3d 113 (Tex. 2004)……………………………………….…………………….14 America Online, Inc. v. Williams, 958 S.W.2d 268 (Tex. App. – Houston [14th Dist.] 1997, no pet.)……………..……….17 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)………………………………….…………………………….2 Borowski v. Ayers, 432 S.W.3d 344 (Tex. App.—Waco 2013, no pet.)………………………..…………….15 Diamond Prods. Int’l., Inc. v. Handsel, 142 S.W.3d 491 (Tex. App.—Houston [14th Dist.] 2004, no pet.)……………….……..15 Fertitta Hospitality, LLC v. O'Balle, 2014 Tex. App. LEXIS 12141 (Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.)…………………………………15 Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., 2014 Tex. App. LEXIS 6746, 2014 WL 2895770 (Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.)…….……………..12 Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539 (Tex. App.—Houston [14th] 2015, no pet.)……………12, 13, 16, 17, 19 Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.)…..……………………....10, 12 In re Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.) ………...…...…….……….10, 19 King-A Corp. v. Wehling, 2013 Tex. App. LEXIS 2761 (Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)………………….…….15 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)………………………………………………………………13 Texas Animal Health Com’n v. Garza, 27 S.W.3d 54 (Tex. App.—San Antonio 2000, pet. denied)…………………….………14 Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)………….…….……………….…………………………….2 Vanderweyst v. Boudreaux, 2003 Tex. App. LEXIS 8549, 2003 WL 22255833 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.))………….….2, 18 Vestalia, Ltd. v. Taylor-Watson, 2015 Tex. App. LEXIS 6249, 2015 WL 3799505 (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (mem. op.)……….…..11, 13, 14 Warren v. Weiner, 2015 Tex. App. LEXIS 8148 (Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.)..............................................10, 14

V TEXAS STATUTES PAGE(S) TEX. CIV. PRAC. & REM. CODE § 51.014(a)……………………………..………………………..13 TEX. CIV. PRAC. & REM. CODE. § 51.014(d)…………………………………….....……8, 9, 12, 17 TEX. CIV. PRAC. & REM. CODE § 51.014(f)…………………………………..…………………....1

TEXAS RULES PAGE(S) TEX. R. APP. P. 28.3(e)(3). . ......………...……………..……………………………………..…....1 TEX. R. APP. P. 28.3(f) ….………………………..…………………………………………..…....1 TEX. R. APP. P. 28.3, cmt….……....……………..…………………………….……………..…....1

VI PREFACE Texas Rule of Appellate Procedure 28.3(e)(3) is clear that a petition for

permissive appeal should “argue clearly and concisely why the order to be

appealed involves a controlling question of law as to which there is a substantial

ground for difference of opinion and how an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” TEX. R. APP. P.

28.3(e)(3). Petitioners-Defendants’ Petition for Permission to Appeal Interlocutory

Order (“Petition”) spends one single page attempting to comply with this rule. See

Pet. Mot., at p. 11. In the remaining twenty-three (23) pages of the Petition,

Petitioner-Defendants argue the merits of the trial court’s decision. To this extent,

the Petition is defective and Respondents-Plaintiffs move to strike these irrelevant

portions.

Accordingly, Respondents-Plaintiffs’ focus this Response on why a

permissive appeal is inappropriate. TEX. R. APP. P. 28.3(f). In the event the Court

grants a permissive appeal, Respondents-Plaintiffs will address the merits of the

trial court’s decision in further appellate briefing. See TEX. R. APP. P. 28.3, cmt.;

See also TEX. CIV. PRAC. & REM. CODE § 51.014(f).

RECORD REFERENCES

Source Citation Format Petitioners’ Appendix Tabs Pet. Tab [number] Respondents’ Appendix Tabs Resp. Tab [number]

1 STATEMENT OF FACTS The statement of facts will be taken primarily from Respondents-Plaintiffs’

Second Amended Petition because this was the live pleading before the trial court

when it ruled on Petitioners’ pleas to the jurisdiction.1 When necessary, the facts

will also be supported by additional evidence. See Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). The statements of fact as set forth in

Respondents’ pleadings (and as set forth herein) must be liberally construed in

Respondents’ favor and taken as true. See Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); See also Vanderweyst v.

Boudreaux, No. 01-02-00928-CV, 2003 Tex. App. LEXIS 8549, 2003 WL

22255833, at *10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied)

(mem. op.).

A. FACTUAL BACKGROUND.

Respondents-Plaintiffs Maria Santos Lopez Dominguez, et al. (the

“Clients”) are offshore oilfield workers (or the surviving representatives of oil field

workers) who were working on the mobile drilling rig, Usumacinta located in the

Bay of Campeche, Mexico and who were injured or killed as a result of the

1 For reasons unknown, Petitioners improperly attached Respondents’ Third Amended Petition filed on September 25, 2013 to their Petition which was filed after the trial court denied the subject pleas on September 17, 2015. See Resp. Tab 4. 2 underlying defendants’ acts or omissions occurring on or about October 23, 2007.

Resp. Tab 1, p. 4-5; Pet. Tab 5, p. 2-3.

One or more of the Clients were improperly solicited to retain Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin (“Itkin”) to represent them in

claims against the parties responsible for causing the injuries or death. Resp. Tab 1,

p. 5. Eventually, however, all Clients retained Itkin to represent them in their

claims. Id. Eric Albritton and the Albritton Law Firm (“Albritton”) were enlisted

by Itkin as local counsel. Id. Later, Beck Redden, LLP, Russell Post, Fields

Alexander and Jas Brar (“Beck”) also represented the Clients in seeking

reinstatement of the Clients’ claims in the United States. Id. Itkin, Albritton and

Beck will be referred to collectively as the “Lawyers.”

In October of 2008, the Itkin-Albritton, on behalf of the Clients, filed

various lawsuits in the United States Federal District Court for the Eastern District

of Texas (the “District Court”) seeking actual and punitive damages against a

number of American individuals and companies (the “underlying lawsuit”). Resp.

Tab 1, p. 6; Pet. Tab 7, p. 2. Itkin-Albritton alleged claims based on Texas state

law, general federal or international maritime law, including the Jones Act, and

Mexican law. Resp. Tab 1, p. 6-7.

The District Court dismissed the Clients’ state law claims with prejudice,

finding they were preempted by the Jones Act. Resp. Tab 1, p. 7. In addition, the

3 District Court dismissed the Clients’ federal maritime claims because the Lawyers

negligently “failed to allege that there was no available remedy in Mexico, as

required to pursue a federal maritime claim under the Jones Act.” Pet. Tab 5, p. 5.

Thus, the Clients allege that, due to the negligence of the Lawyers, the only claims

remaining were the Clients’ Mexican claims for civil liability and moral damages.

Resp. Tab 1, p. 7.

The District Court, on September 15, 2010, consolidated the underlying

lawsuit with six other lawsuits filed by other plaintiffs and a number of other law

firms for the purpose of briefing and deciding a forum non conveniens issue raised

by underlying defendants common to each case. Id. In responding to the forum non

conveniens motions, the Lawyers failed to argue and submit evidence establishing

that Mexico was not an available or adequate forum to litigate the underlying case.

Id. at p. 7-8. The Clients allege that, had the appropriate substantive arguments

been properly asserted by the Lawyers in the response to the forum non conveniens

motion, the motion would not have been granted by the District Court thereby

allowing the Clients’ claims to proceed forward in the chosen forum. Id.

On March 10, 2011, the District Court conditionally granted the forum non

conveniens motion. Id. at 8-9. The order acknowledged the underlying defendants’

agreement to waive any statute of limitations defense that they did not possess as

of the date the underlying case was filed. Id.; See also Pet. Tab 5, p. 27. The order

4 also carried with it a return jurisdiction clause stating, “[s]hould the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than

Plaintiffs’ refusal to pursue an action or to comply with the procedural

requirements of Mexican courts, this Court may reassert jurisdiction upon

timely notification of the same.” Pet. Tab 5, p. 27 (emphasis added). The Clients

allege that the Lawyers’ negligent failure to appeal the May 4, 2011 order was one

proximate cause of damage. Resp. Tab 1, p. 11.

Between February and May of 2013, the Lawyers refiled in Mexico only

eleven (11) of the more than eighty (80) original cases. Id. at p. 9. Due to the

Lawyers’ failure to comply with procedural requirements, the Mexican courts

immediately rejected jurisdiction of the cases. Id. at p. 9-10; See also Pet. Tab 7, p.

4-5. Five months later on October 18, 2013, the Lawyers filed a motion to reinstate

the Clients’ underlying case in District Court, arguing Mexico would not accept

jurisdiction over the cases. Resp. Tab 1, p. 10.

The District Court denied the Lawyers’ attempt to re-file the cases in Texas

and exposed their lack of good faith in great detail, noting the Lawyers “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Pet. Tab 7, p.

9. Judge Crone continued, “Because counsel made no attempt to litigate those

cases in Mexico in compliance with the court’s Memorandum and Order, there is

no basis upon which to reopen them here.” Id. Therefore, with regard to all of the

5 underlying cases, save and except the eleven that were refiled in Mexico, the

Clients allege the Lawyers grossly failed to litigate diligently and in good faith

thereby invalidating the waiver of the statute of limitations. Resp. Tab 1, p. 11. The

Clients also allege the waivers were invalid under both Texas and Mexican law

because they were indefinite and not specific. Id. Additionally, at this late date, any

new filing in Mexico would be untimely.

With regard to the eleven cases that were refiled in Mexico, the District

Court found that the Lawyers simply “did not prosecute the cases in good faith.”

Pet. Tab 7, p. 9. Thus, on May 14, 2014, as a direct and proximate result of the

Lawyers’ negligence, the District Court dismissed the Clients’ underlying lawsuits.

Id. at p. 11-15. Because the Lawyers failed to follow the District Court’s

reinstatement requirements, the District Court placed an additional burden on the

Clients, stating the Clients could “not seek reinstatement in [the District Court]

unless and until they have pursued their claims in Mexico with diligence and good

faith, including seeking final appellate review of any Mexican dismissal

order.” Id. at p. 15 (emphasis added).

Several months after the dismissal, Kurt Arnold sent out deceitful

withdrawal letters wherein he attempted to conceal and downplay the significance

of the Lawyers’ malfeasance and abandoning the Clients. Resp. Tab 2, Ex. D. The

one bit of truth contained within these letters was Mr. Arnold’s recognition of the

6 unlikelihood of the cases being reinstated in the United States: “I think the chances

of the Court accepting the jurisdiction for these cases even after following all steps

[and refiling the cases in Mexico] is remote.” Resp. Tab 2, Ex. D. This statement

by Mr. Arnold is accurate and comports with the Clients’ allegations (supported by

expert testimony) that any claim now filed in Mexico would be dismissed on

limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to timely refile the cases in Mexico and litigate these cases

diligently and in good faith. Resp. Tab 1, p. 11. Accordingly, the Clients’ pleadings

and the Lawyers’ admissions establish that the waivers and stipulations are of no

consequence at this late date and, as a result, the Clients’ underlying claims are

forever barred in both the United States and Mexico. Id.; See also Resp. Tab 3, at

Ex. A, p. 11-13.

B. PROCEDURAL BACKGROUND.

The Lawyers filed (or joined in) various Pleas to the Jurisdiction, and, in the

Alternative, Pleas in Abatement (the “Pleas”) arguing the underlying case was not

yet concluded and seeking to dismiss or abate this case until the underlying claims

were resolved. The Clients disputed this issue of fact, arguing the underlying

claims were “concluded” and that the Clients underlying claims could not now be

refiled in Mexico due to the Lawyers’ negligence. Resp. Tab 2 and 3. The Clients

also responded by arguing (and proving through expert testimony) that, even if the

7 claims could be refiled in Mexico, the Clients suffered injury when the Lawyers

negligently allowed the Clients’ United States cases to be dismissed on forum non

conveniens grounds as litigating in Mexico hinders the Clients’ ability to pursue

their claims. Resp. Tab 3. On September 17, 2015, the trial court agreed with the

Clients and signed an order simply denying the Lawyers’ Pleas. Resp. Tab 4.

The Lawyers subsequently filed (or joined in) Motions for Permission to File

Interlocutory Appeals moving the trial court to amend the original order to comply

with the requirements of section 51.014(d) of the Texas Civil Practice & Remedies

Code. The Clients opposed this request. Resp. Tab. 5. At the hearing on the

motion, the trial court noted that its September 17, 2015 Order did not rule on any

controlling question of law, stating: “I agree with you. I am not even sure what the

issues are.” Resp. Tab 5, p. 12. The trial court was very candid in expressing its

concern about the validity of a permissive appeal due to the complexity of the

factual issues involved:

I kind of doubt also this is the sort of thing they had in mind because of the multiplicity of the issues and how complex it is. To say that there is some central narrow controlling legal issue that can be determined here that is outcome determinative, I think that is wishful thinking. I think that is probably the response you are going to get from [the court of appeals].

Id. at p. 10. The trial court further expressed that it is not possible to generalize

what the controlling issues are in this case because there are so many issues

8 involved with the Pleas. Id. at p. 12. Nonetheless, the trial court granted the

Lawyers’ request to file a permissive appeal even though it “had [its] doubts” with

regard to the validity of such appeal, stating “[l]et’s see what the court of appeals

thinks if [the Lawyers] are correct or not.” Id. Thus, on November 9, 2015, the trial

court entered an amended order attempting to comply with section 51.014(d) and

identifying the “controlling question of law” as “[w]hether this case, as pleaded by

the plaintiffs, is ripe for adjudication.” Pet. Tab 1, p. 2.

The Lawyers’ filed this Petition on November 24, 2015. The Lawyers have

concurrently filed a Petition for Writ of Mandamus that is pending before this

Honorable Court wherein they assert an identical argument.2 Not only should the

Petition be dismissed because the Lawyers’ mandamus is currently pending before

this Court, but the Lawyers have failed to demonstrate their right to a permissive

appeal.

2 See Cause No. 15-00990-CV; In re Arnold & Itkin, LLP, et al.; In the First Court of Appeals of Texas, at Houston. 9 ARGUMENT A. THE PETITION SHOULD BE DENIED BECAUSE THE LAWYERS HAVE ALSO FILED A MANDAMUS.

This Honorable Court has recognized that a permissive appeal is

inappropriate when, as here, the issues are raised in connection with a petition for

writ of mandamus. See Warren v. Weiner, 2015 Tex. App. LEXIS 8148, at *1

(Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.). Although not articulated in

Warren, the rationale for such a holding is likely premised on the notion that

“[s]ubsection (d) was added to Section 51.014 to promote judicial efficiency.” In

re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.);

Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-208 (Tex. App.—San Antonio

2011, no pet.). Requiring the parties to brief and this Court to consider identical

issues in two separate appellate proceedings does not “promote judicial efficiency”

and, therefore, the Petition should be denied. See Warren, 2015 Tex. App. LEXIS

8148, at *1; See also In re Estate of Fisher, 421 S.W.3d at 685-686 (“Here, judicial

economy will not be served if permissive appeal is allowed at this stage, since an

unhappy party is free to appeal the order which would be expected to result soon

from the court's summary judgment ruling…”).

10 B. THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS CONTROLLING TO THIS COURT.

The Lawyers contend that the “controlling question of law” or “The Issue”

to be appealed is “[w]hether this case, as pleaded by the Clients, is ripe for

adjudication.” Pet. Mot., p. 10. Importantly, however, the trial court never found

this issue to be controlling. Pet. Tab 1, p. 2 (“The Court is uncertain about the

meaning of a controlling issue of law for purposes of section 51.0149(d), but

believes that The Issue may be controlling.”)(emphasis added). The uncertainty

reflected in the trial court’s order is further highlighted by the transcript from the

hearing on the Lawyers’ motion to file a permissive appeal wherein the trial court

stated that its order denying the Lawyers’ Pleas did not rule on any controlling

question of law.3 Resp. Tab 5, p. 12 (“I agree with you. I am not even sure what the

issues are.”). Rather, the trial court merely deferred a ruling on the legal issue to

this Court. Id. (“Let’s see what the court of appeals thinks if [the Lawyers] are

correct or not.”).

The trial court’s deferral of ruling on any substantive legal issues deprives

this Court of jurisdiction. See Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-

CV, 2015 Tex. App. LEXIS 6249, 2015 WL 3799505, at *2 (Tex. App.—Houston

[1st Dist.] June 18, 2015, no pet.) (mem. op.)(denying petition for permissive

3 This transcript, of course, was omitted from the Lawyers’ record. 11 appeal when, among other things, “the trial court did not rule on a controlling

question of law…”); See also Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No.

01-14-00372-CV, 2014 Tex. App. LEXIS 6746, 2014 WL 2895770, at *2 (Tex.

App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.); See also Gulley, 350

S.W.3d at 207 (“[w]e have found no reported case in which 51.014(d) was used in

this manner to present an intermediate court of appeals with a ‘controlling legal

question’ prior to the trial court making a substantive ruling on the legal issue.”).4

Thus, the Petition should be denied. See Id.

C. THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE APPEALED IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH THERE IS A SUBSTANTIAL DIFFERENCE OF OPINION.

“There has been little development in the case law construing section

51.014 regarding just what constitutes a controlling legal issue about which there is

a difference of opinion and the resolution of which disposes of primary issues in

the case.” Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539, 544 (Tex.

App.—Houston [14th] 2015, no pet.). Nonetheless, the Fourteenth Court of

Appeals, citing to applicable legal treatises, has stated:

[A] controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon 4 For reasons not present in this case, the court in Gulley held that the statutory requirements for an agreed interlocutory appeal technically were met and it had jurisdiction over the appeal. See Gulley, 350 S.W.3d at 208, n.2. 12 the court’s determination of a question of law, the question is controlling

Id. at 544-545. The Lawyers have failed to establish this first element.

The Lawyers argue that the trial court’s denial of their Pleas was a ruling on

a controlling legal issue for which an immediate appeal may advance the ultimate

termination of litigation because the trail court’s ruling dealt with jurisdiction. Pet.

Mot., at p. 11. The Lawyers’ logic is flawed. There is no doubt that jurisdiction is

necessary in order for any court to entertain litigation of any kind. However, only

specific interlocutory orders regarding jurisdiction are immediately appealable.

See TEX. CIV. PRAC. & REM. CODE § 51.014(a). Otherwise, Texas law is clear:

appeals may only be taken from final judgments. Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001).

The only “legal issue” that the trial court ruled on was “whether this case, as

pleaded by plaintiffs, is ripe for adjudication.” Pet. Tab 1, at p. 2. Although it is

true that the trial court, at the request of the Lawyers, amended its original order

merely denying the Pleas, the amendment is of no consequence because the

amended order failed to provide a basis for the denial. Pet. Tab 1. “When a trial

court in its order … provides no basis for its denial, the trial court fails to make [a]

substantive ruling on the controlling question of law sought to be appealed.”

Vestalia, 2015 Tex. App. LEXIS 6249 at *1-2. In Vestalia, this Court denied a

13 petition for permissive appeal even though the trial court’s order stated that it

“involve[d] questions of law as to which there is a substantial ground for difference

of opinion” and listed the questions because the trial court merely denied the

summary judgment motion without explanation. Id. at *2. Just as in Vestalia, the

trial court wholly failed to explain the reason for the denial and thus, the Petition

should be denied. See also Warren, 2015 Tex. App. LEXIS 8148, at *1 (mere

denial of a plea to the jurisdiction insufficient to warrant permissive appeal

because such orders do not involve controlling questions of law as to which there

are substantial grounds for difference of opinion).

Furthermore, there exist disputed questions of fact which render a

permissive appeal inappropriate. The question of whether the Clients’ underlying

claims are actually barred from being refiled in Mexico is the proximate cause

element of the Clients’ negligence claim and is a question of fact for the jury to

decide. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 122 (Tex. 2004)

(requiring fact finder to decide what a judge would have decided in the underlying

case under hypothetical circumstances). Likewise, mitigation of damages is a

defensive issue upon which the Lawyers bear the burden of proof at trial and is

generally a question of fact. See Texas Animal Health Com’n v. Garza, 27 S.W.3d

54, 62 (Tex. App.—San Antonio 2000, pet. denied). These unresolved factual

issues preclude a permissive appeal.

14 In Fertitta Hospitality, LLC v. O'Balle, 2014 Tex. App. LEXIS 12141

(Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.), this Court held that a

permissive appeal of a denial of a summary judgment was inappropriate “[b]ecause

the parties ha[d] identified neither a controlling legal principle nor an agreed set

of facts[.]” Id. at *10 (emphasis added). The facts of this case are heavily in

dispute: the Lawyers have an unsupported belief that the Clients can refile their

underlying claims in Mexico whereas the Clients believe – and have provided

expert testimony to support the fact that – their underlying claims cannot be refiled

in Mexico and are barred by limitations. Without an undisputed or agreed set of

facts, a permissive appeal is inappropriate. See Id.; See also Borowski v. Ayers, 432

S.W.3d 344, 348 (Tex. App.—Waco 2013, no pet.)(dismissing permissive appeal

of denial of summary judgment motion because factual issues were in dispute); See

also King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 Tex. App. LEXIS 2761,

at *8-9(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)(dismissing

permissive appeal on issue of whether party exercised due diligence in securing

service of process because this is generally a question of fact); See also Diamond

Prods. Int’l., Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th

Dist.] 2004, no pet.) (“The statute does not contemplate permissive appeals of

summary judgments where the facts are in dispute”).

15 Moreover, whether the Clients’ claims are ripe under the disputed facts

plead by the Clients is not a legal question that is subject to substantial grounds for

disagreement. “Substantial grounds for disagreement exist when the question

presented to the court is novel or difficult, when controlling circuit law is doubtful,

when controlling circuit law is in disagreement with other courts of appeals, and

when there simply is little authority upon which the district court can rely[.]”

Lloyd, 457 S.W.3d at 544-545. In an effort to contort the question presented into a

“novel” or “difficult” one, the Lawyers argue that the “issue presented” is “whether

dismissal on forum non conveniens grounds in favor of Mexico conditioned on a

limitations waiver and with a return jurisdiction clause represents the accrual of an

injury for purposes of a legal malpractice claim.” Pet. Mot., at p. 11. Yet, this was

not the question ruled upon by the trial court. Rather, the question was simply

“whether this case, as pleaded by plaintiffs, is ripe for adjudication.” Pet. App. Tab

1, at p. 2. This is not a “novel or difficult” question the resolution of which will

further Texas jurisprudence. Likewise, the courts of appeals are not struggling or in

conflict with one another to determine the ripeness of the Clients’ claims. Simply

put; there is nothing “novel” or “controlling” about the trial court’s denial of the

Lawyers’ Pleas and, therefore, the Petition should be dismissed.

16 D. THE PETITION SHOULD BE DENIED BECAUSE AN IMMEDIATE APPEAL WILL NOT MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION BUT WILL LEAD TO JUDICIAL INEFFICIENCY.

The second element of the statute requires the Lawyers to show that “an

immediate appeal from the order may materially advance the ultimate termination

of the litigation.” TEX. CIV. PRAC. & REM. CODE. § 51.014(d)(emphasis added).

“Generally, a district court will make a finding that the appeal will facilitate final

resolution of the case when resolution of the legal question dramatically affects

recovery in a lawsuit.” Lloyd, 457 S.W.3d at 544-545 (emphasis added)(internal

brackets omitted). While a ruling on the Pleas may be “important” to the Lawyers,

“it does not dispose of controlling issues in the case.” See Lloyd, 457 S.W.3d at

545. Rather, a ruling on the Lawyers’ Pleas – which sought to either dismiss or

abate this lawsuit pending the Clients filing and litigating their claims in Mexico

through exhaustion of all appeals – will merely postpone and delay this litigation,

not terminate it. Indeed, abatement, by definition, means “to cause to cease for a

time; to postpone; to stay, delay, or hinder; to discontinue temporarily, but with an

expectation or purpose of resumption.” America Online, Inc. v. Williams, 958

S.W.2d 268, 272 (Tex. App. – Houston [14th Dist.] 1997, no pet.)(emphasis

added).

17 Judicial economy will not be served if a permissive appeal is allowed

because the Lawyers will be delaying the inevitable malpractice suit as well as

creating three other judicial proceedings: (1) the permissive appeal relating to the

trial court’s denial of the Pleas; (2) the mandamus proceeding relating to the trial

court’s denial of the Pleas; and, if either are successful; (3) another lawsuit in

Mexico plus numerous appeals of any decision. Whatever the outcome, however,

the Clients’ claims against the Lawyers will remain relating to the failure to

properly respond to the forum non conveniens motions which caused the Clients to

have to refile the claims in Mexico in the first instance.

More specifically, the Clients contend that, due to the Lawyers’ negligence,

the underlying court granted the forum non conveniens motion and required the

Clients to file their claims in Mexico, where, even if the claims are not barred, they

are now faced with virtually non-existent discovery, no procedural protections,

extensive delays to any resolution and the unlikelihood of any attorney taking their

case. Resp. Tab 1 and Tab 3, at Ex. A. The lost benefit of pursuing their claims in a

United States court is at least some “concrete injury” which has already occurred

and is not contingent on any future event, thereby rendering these claims ripe. See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15 (lost opportunity found to

constitute injury sufficient to demonstrate ripeness even if other damages were

speculative, holding “[t]he loss of that benefit, whatever it may ultimately be

18 determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”).

Accordingly, a ruling on the Lawyers’ proposed legal question will not terminate

this litigation because the Clients will still have claims against the Lawyers for

these damages and thus, the Petition should be denied. See Lloyd, 457 S.W.3d at

545 (dismissing permissive appeal because trial court’s ruling on summary

judgment only affected “one facet” of the client’s malpractice claim); See also In

re Estate of Fisher, 421 S.W.3d at 686 (denying permissive appeal because “[t]he

parties may also have the opportunity to appeal other future orders that adjudicate a

substantial right and end various phases of the probate proceeding.”).

CONCLUSION & PRAYER

For these reasons, the Clients request this Honorable Court to deny the

Lawyers’ Petition for Permission to Appeal Interlocutory Order and grant the

Clients all other relief to which they may be entitled.

19 Respectfully submitted,

THE KASSAB LAW FIRM

/ s / David Eric Kassab LANCE CHRISTOPHER KASSAB Texas State Bar No. 00794070 lck@texaslegalmalpractice.com DAVID ERIC KASSAB Texas State Bar No. 24071351 dek@texaslegalmalpractice.com 1420 Alabama Houston, Texas 77004 t. 713.522.7400 f. 713.522.7410

DOHERTY✯WAGNER

/ s / Brett Wagner BRETT WAGNER Texas State Bar No. 20654270 brett@dwlawyers.com LARRY JOE DOHERTY Texas State Bar No. 05950000 larry@dwlawyers.com RYAN W. SMITH Texas State Bar No. 24063010 ryan@dwlawyers.com 13810 Champion Forest Drive, Suite 225 Houston, Texas 77069 t. 281 583-8700 f. 281 583-8701

ATTORNEYS FOR RESPONDENTS

20 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this motion/response contains approximately 4,487 words excluding the allowable

items set forth in Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-

generated document created in Microsoft Word 2010, using 14-point typeface for

all text, except for footnotes which are in 12-point typeface. In making this

certificate of compliance, I am relying on the word count provided by the software

used to prepare the document.

Dated: December 3, 2015

/ s / David Eric Kassab David Eric Kassab

21 CERTIFICATE OF SERVICE

The undersigned certifies that on December 3, 2015, the foregoing response

was served electronically on the following parties in accordance with the

requirements of the Texas Rules of Appellate Procedure:

Reagan W. Simpson Jeremy L. Doyle State Bar No. 18404700 State Bar No. 24012553 rsimpson@yettercoleman.com jdoyle@reynoldsfrizzell.com YETTER COLEMAN LLP REYNOLDS FRIZZELL LLP 909 Fannin, Suite 3600 1100 Louisiana, Suite 3500 Houston, Texas 77010 Houston, Texas 77002 Tel. 713-632-8000 Tel. 713-485-7200 Fax 713-632-8002 Fax 713-488-7250 Counsel for Petitioners Counsel for Petitioners Beck Redden LLP, Arnold & Itkin, L.L.P., Russell Post, Fields Kurt Arnold, Cory Itkin Alexander and Jas Brar and Jason Itkin

Billy Shepherd Sam Houston State Bar No. 18219700 State Bar No.10059550 bshpeherd@spmlegal.com shouston@sschlaw.com SHEPHERD PREWETT MILLER PLLC SCOTT, CLAWATER & HOUSTON L.L.P. 770 South Post Oak Lane 2777 Allen Parkway, 7th Floor Suite 420 Houston, Texas 77019-2133 Houston, Texas 77056 Tel. 713-650-6600 Tel. 713-955-4440 Fax 713-766-6542 Fax +1 713-766-6542 Counsel for Petitioners Arnold & Counsel for Petitioners Itkin, Albritton Law Firm and L.L.P., Kurt Arnold, Cory Itkin and Eric Albritton Jason Itkin

22 John Black State Bar No. 24012292 jblack@dalyblack.com DALY & BLACK, P.C. 2211 Norfolk, Suite 800 Houston, Texas 77008 Tel. 888-492-2671 Fax 713-655-1587 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin

23 VERIFICATION

STATE OF TEXAS § COUNTY OF HARRIS §

BEFORE ME, the undersigned notary, on this day, personally appeared

David Eric Kassab, a person whose identity is known to me. After I administered

an oath to him, upon his oath, he said:

"My name is David Eric Kassab. I am one of the attorneys for Plaintiffs in the trial court and in this appeal. All pleadings, motions, order(s), and/or other documents attached to the Appendix of Plaintiffs-Respondents' Motion to Dismiss for Lack of Appellate Jurisdiction and Response to Petitioners' Petition for Permission to Appeal are true and correct copies of documents filed with, or obtained from, the trial court."

SUBSCRIBED AND SWORN TO BEFORE ME by David Eric Kassab, on

this the 3rdday of December, 2015.

My commission expires: No. 01-15-00989-CV _________________________________________

IN THE FIRST COURT OF APPEALS at Houston ______________________________________________

MARIA SANTOS LOPEZ DOMINGUEZ, ET AL. Respondents, ______________________________________________

Trial Court Cause Number 2015-28543 From the 11th Judicial District Court of Harris County, Texas ______________________________________________

RESPONDENTS’ APPENDIX ______________________________________________ INDEX OF APPENDIX

TAB NUMBER DOCUMENT

1 Plaintiffs’ Second Amended Petition 2 Plaintiffs’ Response to All Defendants’ Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement 3 Plaintiffs’ Sur-Reply to All Defendants’ Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement

4 September 17, 2015 Order Denying Defendants’ Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement 5 October 19, 2015 Transcript of Status Conference on Defendants’ Motion for Permission to File Interlocutory Appeal Appendix Tab 1 CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Plaintiffs, Maria Santos Lopez Dominguez, Individually and as next friend

of Karen Marien Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade

Lopez on behalf of the Estate of Omar Gerardo Andrade Zarate; Gabriel Gonzalez Toral; Jorge

Arturo Jimenez Rangel; Antonio Montero Hernandez; Juan Antonio Palafox Navarrete; Leonel

Fernandez Rivera; Fernando Augusto Cervera Ramirez; Libia Arredondo Chavez; individually

and as Next Friend of Jorge Ricardo Barrancos Arredondo and Pedro Santiago Barrancos

Arredondo on behalf of the Estate of Jorge Alonso Barrancos Dzul; Pastor Garcia Ocana; Jorge

Guzman Martinez; Aldo Antonio Lopez Lorenzo and Monica Lopez; and Miguel Cobos Salas

complaining of Defendants, Arnold & Itkin, L.L.P., Beck Redden, L.L.P., Albritton Law Firm,

Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields Alexander, Jas Brar and Eric Albritton,

and would respectfully show as follows:

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 1 OF 20 I DISCOVERY CONTROL PLAN

Based upon this Petition, this case should be controlled by discovery control plan Level 3

pursuant to the Texas Rules of Civil Procedure, Rule 190.4. Plaintiffs seek monetary relief over

$1,000,000.00.

II PARTIES

Plaintiff, Maria Santos Lopez Dominguez, Individually and as next friend of Karen

Marien Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade Lopez on

behalf of the estate of Omar Gerardo Andrade Zarate is a resident of Mexico.

Plaintiff, Gabriel Gonzalez Toral is a resident of Mexico.

Plaintiff, Jorge Arturo Jimenez Rangel is a resident of Mexico.

Plaintiff, Antonio Montero Hernandez is a resident of Mexico.

Plaintiff, Juan Antonio Palafox Navarrete is a resident of Mexico.

Plaintiff, Leonel Fernandez Rivera is a resident of Mexico.

Plaintiff, Fernando Augusto Cervera Ramirez is a resident of Mexico.

Plaintiffs, Libia Arredondo Chavez, individually and as Next Friend of Jorge Ricardo

Barrancos Arredondo and Pedro Santiago Barrancos Arredondo on behalf of the Estate of Jorge

Alonso Barrancos Dzul is a resident of Mexico.

Plaintiff, Pastor Garcia Ocana is a resident of Mexico.

Plaintiff, Jorge Guzman Martinez is a resident of Mexico.

Plaintiff, Aldo Antonio Lopez Lorenzo and Monica Lopez are residents of Mexico.

Plaintiff, Miguel Cobos Salas is a resident of Mexico.

Defendant, Arnold & Itkin, L.L.P., is a Texas Limited Liability Partnership formed for

the practice of law and has answered herein.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 2 OF 20 Defendant, Beck Redden, L.L.P., is a Texas Limited Liability Partnership formed for the

practice of law and has answered herein.

Defendant, Albritton Law Firm is a law firm located in Longview, Texas and has

answered herein.

Defendant, Kurt Arnold, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

Defendant, Jason Itkin, is an individual residing in and/or doing business in Harris

Defendant, Cory Itkin, is an individual residing in and/or doing business in Harris

Defendant, Russell Post, is an individual residing in and/or doing business in Harris

Defendant, Jas Brar, is an individual residing in and/or doing business in Harris County,

Texas and has answered herein.

Defendant, Eric Albritton, is an individual residing in and/or doing business in Gregg

III JURISDICTION AND VENUE

This Court has subject matter jurisdiction over the controversy because the claims

asserted in this Petition arose, in whole or in part, in Texas and the amount in controversy

exceeds the minimum jurisdictional limits of this Court.

This Court has personal jurisdiction over each Defendant because the acts and omissions

complained of herein occurred in Texas, each Defendant does and/or did do business in the State

of Texas, has committed a tort, in whole or in part in Texas, is a resident and citizen of Texas,

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 3 OF 20 and/or has minimum contacts with the State of Texas during the period of time complained of

herein.

Venue is properly laid in the Harris County, Texas because Defendant, Arnold & Itkin,

LLP has a principal office and headquarters in Harris County, Texas. See TEX. CIV. PRAC. &

REM. CODE § 15.002(a)(3). All other Defendants jointly represented Plaintiffs in the underlying

case and are responsible for each other’s conduct. Because the claims and causes of action

against all other Defendants arise out of the same transaction, occurrence, or series of

transactions or occurrences, the Court has venue for all Defendants. See TEX. CIV. PRAC. & REM.

CODE § 15.005.

IV FACTUAL BACKGROUND

This is a legal malpractice case arising out of a grossly tragic, yet entirely avoidable

mobile off-shore platform accident which took place off the Bay of Campeche, Mexico in

October of 2007. The accident caused the death of twenty-two workers and injured sixty-three

more. After the explosion, Plaintiffs were herded by the lawyers to sue the various American and

Mexican oil companies responsible. Unfortunately, the lawyers, after filing the lawsuits, were

found by the court to have failed to “prosecute the cases in good faith” thereby causing the cases

to be dismissed. With the statute of limitations lapsed and unwaivable under Mexico law, the

cases are forever barred to being refiled. In the end, the fatal negligence of the lawyers deprived

these Plaintiffs of their right to seek redress for the injuries and deaths they sustained. The

disastrous series of events is as follows.

A. THE ACCIDENT

Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 4 OF 20 drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored. An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform. As a result, twenty two offshore

workers (including two rescuers) died and sixty three others were injured. Plaintiffs were among

those injured and/or survivors of those killed in the tragedy.

B. THE IMPROPER SOLICITATION.

On information and belief, Plaintiffs were illegally and unethically contacted via

telephone by an individual claiming to be a representative of a law firm (the “runner”) shortly

after the incident. The runner told some of the Plaintiffs that the law firm was interested in

representing them against the American companies responsible for the faulty valve and

ultimately the incident and their injuries. The runner advised some of the Plaintiffs to recruit

others to be solicited by the law firm for representation. The runner then met with other

Plaintiffs to solicit them into hiring the attorneys.

C. THE UNDERLYING LAWSUIT

Thereafter, Plaintiffs, either individually or collectively, retained Defendants Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin, Jason Itkin, (“Defendants” or “Lawyers”) to represent

them in claims against the parties responsible for causing the injuries and deaths. Thereafter,

Eric Albritton and the Albritton Law Firm (“Albritton Defendants”) were enlisted as local

counsel to represent the Plaintiffs. Beck Redden, L.L.P., Russell Post, Fields Alexander and Jas

Brar (“Beck Defendants”) were also enlisted to represent Plaintiffs with regard to the attempt to

reinstate Plaintiffs’ cases in the United States.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 5 OF 20 Beginning in October of 2008, Defendants, on behalf of Plaintiffs, filed various lawsuits

in the United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of Mexican and American companies including Gulf Coast Marine & Associates, Inc.,

Schlumberger Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel

Company (the “underlying lawsuit”).

In the underlying lawsuit, the Lawyers alleged negligence, gross negligence, products

liability, and wrongful death claims. These Texas corporate defendants were responsible for

making policy, safety, corporate, manufacturing, supervision, and design decisions, in their

United States headquarters, that directly affected the events relevant in the underlying lawsuit.

More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying defendants breached

their duties by negligently failing to provide a safe working environment, accurate weather

information, proper supervision, proper equipment that was in good repair; accurate information

as to soil conditions and platform placement; and failing to timely engage in rescue efforts,

among other claims. Defendants, on Plaintiffs’ behalf, alleged that Schlumberger and Halliburton

were liable for strict products liability for defective design and manufacture of the safety valves

and/or sensors that failed in the underlying incident. Even more specifically, Defendants alleged

that the valve design defect posed an unreasonably dangerous rate of fouling, a process leading

to the buildup of solids which creates a false seal that erodes with time, significantly increasing

the risk of a perilous and incessant oil and gas leak. Defendants also alleged that products in

question contained inadequate warnings. Defendants alleged that these product defects rendered

the offending products unreasonably dangerous and, therefore, Schlumberger and Halliburton

were liable for all damages caused thereby without regard to fault. These claims were based on

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 6 OF 20 Texas state law, general federal or international maritime law, including the Jones Act, and

Mexican law.

The District Court dismissed Plaintiff’s state law claims with prejudice, finding that they

were preempted by the Jones Act. In addition, the District Court dismissed Plaintiff’s federal

maritime claims because the Lawyers negligently failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act. Thus, due

to the negligence of the Lawyer Defendants, including the Albritton Defendants, the only claims

remaining were Plaintiff’s Mexican claims for civil liability and moral damages.1

The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case. More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute. More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum. The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.

In response, the Lawyers, including the Albritton Defendants, merely argued that all of

the underlying defendants were U.S. companies or citizens and, therefore, the documents and

witnesses regarding liability were located in the United States. However, the Defendants, the

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 7 OF 20 Albritton Defendants and the Beck Defendants wholly failed to argue, among other things, that

Mexico was not an available forum because:

1. The waiver of the statute of limitations is invalid under Mexican law;

2. Mexico lacks jurisdiction over United States residents and the unilateral consent by the underlying defendants does not create jurisdiction in Mexico;

3. Plaintiff would not be voluntarily choosing the Mexican forum as required under Mexican law; and

4. Mexico had lost any initial jurisdiction it ever had over the case after the case was initially filed in the United States.

Additionally, all of the Defendants wholly failed to argue, among other things, that

Mexican courts were not adequate for adjudicating the case because:

1. Mexico does not have procedural safeguards to permit the Plaintiff to develop his evidence; and

2. Proceedings in Mexico will not be concluded within a reasonable time frame.

As discussed further below, had the foregoing substantive arguments been properly asserted by

all of the Defendants in the response to the forum non conveniens, the outcome of the underlying

case would have been different and the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum.

After a hearing on that motion on March 10, 2011, the District Court conditionally

granted the motion. The granting of the motion carried five crucial conditions to the survival of

Plaintiff’s claims:

1 Pursuant to Articles 500 and 502 of the Federal Labor Law in Mexico allows only approximately $9,500.00 U.S. Dollars as compensation for civil liability in death cases. Moral damages in Mexico are equally inadequate to compensate worker’s personal injuries.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 8 OF 20 1. Defendants agree to appear and submit themselves to the jurisdiction of a Mexican federal or state court, waiving any jurisdictional defenses they might normally possess;

2. Defendants agree to waive any statute of limitations defense that they did not possess as of the date each of the seven cases was originally filed;

3. Defendants agree to submit to discovery in the Mexican forum in accordance with the procedural rules of the Mexican court;

4. Defendants agree that they will make all relevant witnesses and documents available in Mexico to the extent consistent with Mexican law;

5. Defendants further agree that they will make any employee witness available for trial in Mexico to the extent consistent with Mexican law.

The order also carried with it a return jurisdiction clause stating that, “Should the courts

of Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this

Court may reassert jurisdiction upon timely notification of the same.”

From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases. The underlying defendants then challenged the Mexican court’s

jurisdiction due to Defendants failure to comply with the District Court’s Order. In what appears

to be part of Defendants’ sophomoric, jejune and grossly negligent trial strategy to have

Plaintiffs’ claims tried in Texas (where Defendants’ practice and reside) as soon as possible,

Defendants attempted to bypass the dictates of the District Court’s Orders. Specifically, the

Defendants did not make use of the stipulation to Mexican jurisdiction the underlying defendants

signed as part of the dismissal in the District Court or otherwise contest the underlying

defendant’s resistance to Mexican jurisdiction. Not surprisingly, the Mexican courts

immediately rejected jurisdiction of the cases.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 9 OF 20 Moreover, rather than appeal the dismissal for lack of jurisdiction to a higher Mexican

court, all of the Defendants simply filed a motion to reinstate the Plaintiffs’ case in District Court

on or about October 18, 2013. After extensive briefing, the District Court denied Defendants’

attempt to re-file the cases in Texas. In her May 14, 2014 memorandum opinion, Judge Marcia

Crone exposed Defendants’ fraud on the courts in great detail, noting that Defendants “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Judge Crone continued,

“Because counsel made no attempt to litigate those cases in Mexico in compliance with the

court’s Memorandum and Order, there is no basis upon which to reopen them here.” Therefore,

with regard to all of the underlying cases, save and except the eleven that were refiled in Mexico,

Defendants grossly failed to litigate diligently and in good faith.

With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.” Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge

Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly. Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying lawsuits.

With the accident and resulting injuries and deaths occurring in October of 2008, the

Plaintiffs’ underlying lawsuit may not be refiled in Mexico because it is now barred by

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 10 OF 20 limitations. Moreover, while the underlying defendants agreed to stipulate to jurisdiction in

Mexico and waive the statute of limitations, these stipulations and waivers were invalid under

Texas and Mexican law from the outset. See Sacks v. Four Seasons Hotel Ltd., 2006 U.S. Dist.

LEXIS 17768 at *18 (E.D. Tex. Mar. 7, 2006)(denying motion to dismiss under the doctrine of

forum non conveniens based, in part, on Mexican law experts testimony that “stipulations made

before a United States court to waive the Mexican statute of limitations are meaningless in

Mexico.”). The Lawyers, including all Defendants herein, wholly failed to raise these points in

response to various motions to dismiss. Had such evidence, arguments and authority been

presented, the District Court would not have dismissed the case and the case would have

remained in the Texas District Court. Moreover, and in the alternative, all Defendants failed to

appeal the District Court’s rulings based upon the above arguments and authority. Had this

appeal been undertaken, it would have been successful and the case would have remained in

District Court.

Furthermore, the waivers became invalid and unenforceable when the Lawyers, including

the Albritton Defendants, failed to comply with the initial March 10, 2011 order from the District

Court requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in

good faith. Accordingly, the waivers and stipulations are of no consequence. As a result,

Plaintiffs’ claims are forever barred in both the United States and Mexico.

Obviously, Defendants attempted to make jurisdiction in the United States as quickly as

possible no matter what the cost to their clients. This is demonstrated by the fact that the suits

were filed in Texas first rather than exhausting all remedies in Mexico. When that failed,

Defendants filed only eleven cases in Mexico rather than waste their time filing all of them in

Mexico. Even then, Defendants purposefully, intentionally and willfully sabotaged the cases so

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 11 OF 20 that the Mexican courts would quickly dismiss them for lack of jurisdiction, which is exactly

what they did. The obviousness of this failed strategy is underscored by the fact that Defendants

chose to file similarly-worded and woefully inadequate complaints even after receiving dismissal

orders from the Mexican courts for the first several cases instead of correcting the inadequacies

by expressly stating that Defendants had submitted to Mexico’s jurisdictions in writing.

To add insult to injury, after the May 14, 2014 dismissal, some of the Defendants sent

deceitful withdrawal letters to the Plaintiffs wherein they attempted to conceal and downplay the

significance of their actions and conceal their wrongdoing. Not only this, but to the extent the

decision of the District Court was erroneous, all Defendants neglected to appeal the decision of

the District Court or even advise the Plaintiffs of their rights to do so within the prescribed

period of time. As a result of all the Defendants’ grossly incompetent strategy, Plaintiffs were

left with no remedy for themselves or their loved ones who lost lives.

V RESPONDEAT SUPERIOR

At all times material hereto, Defendants, including the Albritton Defendants represented

Plaintiffs in the legal matters described herein. Additionally, the Beck Defendants represented

Plaintiffs with regard to strategy and litigation related to the attempted reinstatement of

Plaintiffs’ cases in the United States. Thus, at all times material hereto all of the specific acts

complained of herein below are attributable to the conduct of the individual Defendants, who

were attorneys associated with their respective law firm Defendant, as a partner, agent, servant,

representative and/or employee. Thus, the liability and responsibility of the Defendants herein is

vicarious and joint and several, and, further, Plaintiffs plead the legal theory of respondeat

superior as between the individual Defendants and their respective law firms. Therefore, as

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 12 OF 20 Plaintiffs’ lawyers, Defendants, including the Albritton Defendants and the Beck Defendants

owed Plaintiffs fiduciary and other duties of care as a matter of law.

VI STATEMENT OF CLAIMS

Therefore, it has become necessary to bring this suit to collect a legal debt of money

damages owing to Plaintiffs due to all of the Defendants’ conduct as listed above and below. All

the Defendants’ actions, either individually or in consert constitute negligence, gross negligence,

breach of fiduciary duty, fraud and constructive fraud as those terms are understood in law.

Defendants also violated section 32.45 of the Texas Penal Code (Misapplication of Fiduciary

Property).

A. NEGLIGENCE

It has become necessary to bring this suit to collect a legal debt of money damages owing

to Plaintiffs because of all of the Defendants’ negligence as that term is understood in law.

Specifically, Plaintiffs would show the following errors and/or omissions as to the conduct of

some or all Defendants in their legal representation of Plaintiffs:

1. Failure to properly represent Plaintiffs;

2. Failure to preserve Plaintiffs’ rights and interests;

3. Failure to make the proper arguments in response to the motions filed in the District Court.

4. Failure to properly prosecute Plaintiffs’ causes of action in Mexican courts in good faith;

5. Failure to properly advise and/or inform Plaintiffs regarding the benefits and/or risks associated with the course of action taken by Defendants in the prosecution of their claims;

6. Failure to timely and fully advise Plaintiffs as to the status of their claims;

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 13 OF 20 7. Failing to timely file suit against parties against whom Plaintiffs had lawful claims;

8. Accepting representation for litigation for which Defendants were not competent to handle;

9. Failing to fully comply with Judge Wards April 20 and May 4, 2011 Orders;

10. Failing to comply with the procedural laws of Mexico;

11. Failing to put forth sufficient evidence, argument and authority to the District Court to establish that any waivers of limitations or stipulations to jurisdiction by the underlying defendants would be invalid under Mexican law thereby rendering Mexico an inadequate forum;

12. Conceding that Mexico is an available and adequate forum for the adjudication of Plaintiff’s claims when it was not;

13. Failing to advise Plaintiffs of their right to appeal the decisions of the District Court or undertaking this appeal within the proscribed period of time; and

14. Failing to properly plead the Jones Act.

Of Course, nothing Plaintiffs did or failed to do caused or in any way contributed to

cause the occurrences which resulted in losses and damages. On the contrary, all of the

Defendants wholly failed and neglected to properly represent Plaintiffs, and their conduct was a

proximate and/or producing cause of Plaintiffs’ losses and damages.

B. GROSS NEGLIGENCE

The acts and omissions of all Defendants described herein constitute gross negligence for

which Plaintiffs now sue. All of the Defendants herein owed Plaintiffs a duty to render legal

services with the care, skill and diligence of an attorney of ordinary and reasonable skill and

knowledge. All of the Defendants failed to perform as an attorney of ordinary and reasonable

prudence to a gross extent. Moreover, some or all of the Defendants hold themselves out as

superior lawyers in ability and ethics, rising themselves to the status of an expert lawyer. In fact,

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 14 OF 20 some of the lawyer Defendants classify and market themselves as “Super Lawyers.” Thus, these

Lawyer Defendants are held to the expert lawyer standard. Unfortunately however, all of hte

Defendants’ incompetence, as shown by the way they handled the underlying case, does not even

rise to the level of an ordinarily prudent lawyer. All of the Defendants herein wholly failed to

even uphold this minimal standard of care. Instead, all of the Defendants chose to treat Plaintiffs

with an entire want of care, such that all of these Defendants’ actions constitute an actual

conscious disregard to the rights, welfare and safety of Plaintiffs. Thus, all of the Defendants’

negligence and gross negligence proximately resulted in legal damages for which Plaintiffs sue.

C. BREACH OF FIDUCIARY DUTY

An attorney client relationship existed between Plaintiffs and all Defendants herein.

Thus, all the Defendants owed Plaintiffs various fiduciary duties as a matter of law, including:

1. Duty to act with loyalty and utmost good faith; 2. Duty to act with absolute perfect candor, openness, and honesty, and without any deception or concealment, no matter how slight; 3. Duty to refrain from self-dealing, which extends to dealings with persons whose interests are closely identified with those of the fiduciary; 4. Duty to act with integrity of the strictest kind; 5. Duty of fair, honest dealing; 6. Duty of full disclosure; that is, a duty not to conceal matters that might influence a fiduciary to act in a manner prejudicial to the principal; 7. Duty to represent Plaintiffs with undivided loyalty; 8. Duty to make a full and fair disclosure of every facet regarding the matters material to the representation;

Some or all of the Defendants knowingly and intentionally breached any one or all of the

above fiduciary duties owed to Plaintiffs by the acts and omissions stated herein and above. All

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 15 OF 20 of the Defendants’ various breaches of the fiduciary duties owed to Plaintiffs resulted in legal

damages to Plaintiffs and/or a benefit to Defendants, for which Plaintiffs now sue.

D. FRAUD AND CONSTRUCTIVE FRAUD

Plaintiffs will show that the acts and omissions of some or all of the Defendants

constitute fraud in that: (i) Defendants made material misrepresentations (ii) Defendants made

the misrepresentations (and/or non-disclosures) with knowledge of its falsity or made them

recklessly without any knowledge of the truth and as a positive assertion; (iii) the

misrepresentations (and/or non-disclosures) were made with the intention that they should be

acted and/or relied upon by Plaintiffs; and (iv) Plaintiffs relied on the misrepresentations (and/or

non-disclosures) and suffered injury. Specifically, Defendants represented they would follow the

District Court’s Orders and litigate in good faith by re filing the underlying suits in Mexico and

by exhausting all remedies in Mexico prior to reopening the cases in the United States.

Defendants had no intention of following the District Court’s Orders, nor litigate in good faith in

Mexico as outlined above. Plaintiffs relied on these Defendants misrepresentations and/or lack

thereof to their detriment. This was not only a fraud perpetrated against Plaintiffs, the Lawyers

own clients, but was a fraud upon the Court as well.

E. MISAPPLICATION OF FIDUCIARY PROPERTY

Defendants herein violated section 32.45 of the Texas Penal Code (Misapplication of

Fiduciary Property). Pursuant to section 32.45, a violation occurs when a fiduciary intentionally,

knowingly or recklessly misapplies property he holds as a fiduciary in a manner that involves

substantial risk of loss to the owner of the property or to a person for whose benefit the property

is held. These Defendants owed a fiduciary duty to Plaintiffs as a matter of law. Further,

Plaintiffs’ underlying lawsuit was considered “property” as that term is understood in law and

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 16 OF 20 was held in these Defendants’ safe keeping. These Defendants intentionally, knowingly or

recklessly misapplied Plaintiffs’ property (1) by attempting to bypass Mexican procedural law;

(2) by failing to follow the simple dictates of Judge Ward’s Orders; (3) by not diligently

prosecuting Plaintiffs’ claims; (4) by failing to argue that Mexican law does not recognize

stipulations made in other jurisdictions; and (5) by failing to appeal Judge Ward’s April 20 and

May 4, 2011 Orders. Clearly, such conduct involved a substantial risk of loss to Plaintiffs’

property, and in fact, such property was lost due to Defendants’ actions. Therefore, Defendants

violated section 32.45 of the Texas Penal Code. Moreover, pursuant to Civil Practice and

Remedies Code, Section 41.008 (c) the statutory caps for punitive and/or exemplary damages do

not apply to this case.

F. VIOLATION OF THE BARRATRY STATUTE

Texas Disciplinary Rule of Professional Conduct 8.04(a) prohibits an attorney from

“engage[ing] in conduct that constitutes barratry as defined by the law of this state.” TEX. DISCP.

R. PROF’L CONDUCT 8.04. A person commits barratry “if, with intent to obtain an economic

benefit the person… pays or gives or offers to pay or give a person money or anything of value

to solicit employment.” TEX. PENAL CODE § 38.12(a)(4). Simply put, “[b]arratry is the

solicitation of employment to prosecute or defend a claim with intent to obtain a personal

benefit.” State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994). An agreement

procured through barratry is voidable by the client. Cobb v. Stern, Miller & Higdon, 305 S.W.3d

36, 42 (Tex. App.—Houston [1st Dist.] 2009, no pet.). As stated above, Defendants violated the

foregoing rules and statutes by engaging third parties to personally contact Plaintiffs and solicit

Defendants’ employment in the underlying lawsuit.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 17 OF 20 VII DAMAGES

A. ACTUAL DAMAGES

Regarding the causes of action and conduct alleged above, Plaintiffs sustained pecuniary

losses that were proximately caused by all of the Defendants’ conduct. Plaintiffs’ actual

damages exceed the minimum jurisdictional limits of this court. After completion of discovery,

Plaintiffs will amend their pleadings in order to indicate more specifically the damages they have

suffered.

B. EXEMPLARY DAMAGES

Due to all of the Defendants’ gross negligence, breach of fiduciary duty and fraud,

Plaintiffs are entitled to exemplary/punitive damages which they seek herein. Moreover, based

upon Defendants violation of the Texas Penal Code, Section 32.45, punitive damages are not

capped pursuant to Section 41.008 of the Texas Civil Practice and Remedies Code with regard to

these Defendants. Thus, Plaintiffs seek punitive damages to the maximum extent of what the jury

awards.

VIII DISCOVERY RULE

To the extent that any party pleads the statute of limitations as a defense, Plaintiffs hereby

assert the provision of the “Discovery Rule” as pronounced by the Texas Supreme Court in

Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988), and would say and show that said suit has been

filed within two years of the Plaintiffs’ knowledge of such facts as would lead a reasonably

prudent person to discover all of the Defendants’ wrongful acts.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 18 OF 20 IX JURY DEMAND

Plaintiffs desire to have a jury decide this case and make this formal request pursuant to

Tex. R. Civ. P. 216. This request is filed more than thirty days before this case has been set for

trial. A jury fee has been tendered herewith in the above entitled and numbered cause.

X REQUEST FOR DISCLOSURE

Pursuant to Texas Rule of Civil Procedure 194, all of the Defendants are requested to

disclose, within fifty (50) days of service of this request, the information or material described in

Rule 194.2 (a) - (l).

XI PRAYER

WHEREFORE, Plaintiffs pray that after trial herein, that judgment be entered against all

of the Defendants jointly and severally as prayed for, that costs of court be taxed against all

Defendants herein, that Plaintiffs be given prejudgment as well as post judgment interest, and for

such other and further relief, at law and in equity to which Plaintiffs may show themselves to be

justly entitled, to which the Court believes Plaintiffs to be deserving, and for which Plaintiffs

will ever pray.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 19 OF 20 Respectfully submitted,

/ s / Lance Christopher Kassab LANCE CHRISTOPHER KASSAB Texas State Bar No. 00794070 lck@texaslegalmalpractice.com DAVID ERIC KASSAB Texas State Bar No. 24071351 dek@texaslegalmalpractice.com 1420 Alabama Houston, Texas 77004 t.713.522.7400 f.713.522.7410

/ s / Brett Wagner BRETT WAGNER Texas State Bar No. 20654270 brett@dwlawyers.com LARRY JOE DOHERTY Texas State Bar No. 05950000 larry@dwlawyers.com RYAN W. SMITH Texas State Bar No. 24063010 ryan@dwlawyers.com 13810 Champion Forest Drive, Suite 225 Houston, Texas 77069 t.281 583-8700 f.281 583-8701

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 11th day of August, 2015.

/s/ Lance Christopher Kassab Lance Christopher Kassab

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 20 OF 20 Appendix Tab 2 CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION, AND, IN THE ALTERNATIVE, PLEA IN ABATEMENT TO THE HONORABLE JUDGE MIKE MILLER:

COME NOW Plaintiffs, Maria Santos Lopez Dominguez, et al., and files this, their

Response to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement,

I INTRODUCTION

Plaintiffs, Maria Santos Lopez Dominguez, et al., are Mexican nationals and former

clients of Defendants. Defendants are Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason

Itkin (the “Itkin Defendants”), Beck Redden, L.L.P., Russell Post, Fields Alexander, Jas Brar

(the “Beck Redden Defendants”) and Eric Albritton and his law firm Albritton Law Firm (the

“Albritton Defendants”) (collectively “Defendants” or the “Lawyers”).

Plaintiffs sued the Lawyers for, among other claims, negligence after Plaintiffs’

underlying claims were dismissed. Specifically, Plaintiffs allege that their underlying maritime

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 1 OF 29 claims were wrongfully dismissed because “the Lawyers negligently failed to allege that there

was no available remedy in Mexico, as required to pursue a federal maritime claim under the

Jones Act.”1 “Thus, due to the negligence of the [Lawyers] the only claims remaining were

Plaintiffs’ Mexican claims for civil liability and moral damages.”2 Second, Plaintiffs allege that

the Lawyers allowed Plaintiffs’ remaining underlying claims to be wrongfully dismissed on

forum non conveniens grounds because the Lawyers “wholly failed to argue, among other things,

that Mexico was not an available forum” or that “that Mexican courts were not adequate for

adjudicating the case…”3 Plaintiffs allege that “had the [identified] substantive arguments been

properly asserted by the Lawyers in the response to the forum non conveniens, the outcome of

the underlying case would have been different and the forum non conveniens would not have

been granted by the District Court thereby allowing Plaintiffs’ claims to proceed forward in the

chosen forum.”4 Finally, Plaintiffs allege that with the accident and resulting injuries and deaths

occurring in October of 2007, “the Plaintiffs’ underlying lawsuit may not be refiled in Mexico

because it is now barred by limitations.”5

The Beck Redden Defendants and the Itkin Defendants both filed the pending Plea to the

Jurisdiction, and, in the Alternative, Plea in Abatement arguing that this lawsuit should be

dismissed because it is not ripe. More specifically, the Lawyers allege that because Plaintiffs’

underlying claims can allegedly be refiled in Mexico, “Plaintiffs have not suffered any concrete

injury” and this case is therefore “premised on contingent and hypothetical events that have not

yet come to pass.”6 Simply put; the Lawyers argue that Plaintiffs must continue to pursue their

underlying claims in Mexico and, upon dismissal, again attempt to have the underlying case

1 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 2 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 3 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 4 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 2 OF 29 reinstated in Texas before their legal malpractice claims are ripe for adjudication. The Albritton

Defendants joined in the other Defendants’ pleas to the jurisdiction and requests for abatement.

The Lawyers’ pleas to the jurisdiction and request for abatement should be denied for at

least the following reasons:

 The plea to the jurisdiction is premature because it implicates the merits of this lawsuit and there are genuine issue of material fact regarding a disputed jurisdictional facts and, therefore, the trial Court cannot grant the motion to dismiss;  Plaintiffs have asserted negligence claims against Defendants for failing to properly assert their federal maritime claims and nothing about Plaintiffs’ ability or inability to pursue Mexican law claims in Mexico changes the effect of Defendants’ malpractice related to these claims;  Defendants’ negligence in failing to assert and prove the proper substantive arguments in the response to the forum non conveniens caused the District Court to render the decision that it did and had such arguments been properly asserted, the outcome of the underlying case would have been different and, even if the cases could be refiled in Mexico, Plaintiffs’ damages would be the difference between the value of the case in Mexico verses the United States;  There are genuine issues of material fact as to whether the waiver of limitations would be valid in Mexico as the case law is conflicting on this issue; and  Even if a waiver of limitations is valid under Mexico law, the waiver became invalid due to the lapse of time caused by Defendants’ delay in litigating the underlying case and, more importantly, the waiver is void as against public policy under Texas law and thus Plaintiffs’ underlying case may not be refiled in Texas even if a Mexico court denied jurisdiction.

II FACTUAL BACKGROUND

In ruling on this motion, the Court is required to construe the pleadings in the Plaintiffs’

favor. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

5 PLAINTIFFS’ SECOND AMENDED PETITION, p. 10-11. 6 ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 3 OF 29 Accordingly, the factual background will be comprised of Plaintiffs’ most recent petition and,

when necessary, filings from the underlying proceedings.7

Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile

drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. 8 On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored.9 An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform.10 As a result, twenty two

offshore workers (including two rescuers) died and sixty three others were injured.11 Plaintiffs

were among those injured and/or survivors of those killed in the tragedy.12

In October of 2008, the Lawyers, on behalf of Plaintiffs, filed various lawsuits in the

United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of American companies including Gulf Coast Marine & Associates, Inc., Schlumberger

Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel Company (the

“underlying lawsuit”).13 In the underlying lawsuit, the Lawyers alleged negligence, gross

negligence, products liability, and wrongful death claims. These Texas corporate defendants

were responsible for making policy, safety, corporate, manufacturing, supervision, and design

7 Plaintiffs have included the affidavit of their counsel, David Eric Kassab, as Exhibit “G” authenticating the pleadings from the underlying case as well as other exhibits which may be helpful to the Court’s resolution of the issues. 8 PLAINTIFFS’ SECOND AMENDED PETITION, pp. 4-5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 2-3. 9 PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3. 10 PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3. 11 PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3. 12 PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3. 13 PLAINTIFFS’ SECOND AMENDED PETITION, pp. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 4 OF 29 decisions, in their United States headquarters, that directly affected the events relevant in the

underlying lawsuit.14 More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying

defendants breached their duties by negligently failing to provide a safe working environment,

accurate weather information, proper supervision, proper equipment that was in good repair;

accurate information as to soil conditions and platform placement; and failing to timely engage

in rescue efforts, among other claims.15 Defendants, on Plaintiffs’ behalf, alleged that

Schlumberger and Halliburton were liable for strict products liability for defective design and

manufacture of the safety valves and/or sensors that failed in the underlying incident. Even more

specifically, Defendants alleged that the valve design defect posed an unreasonably dangerous

rate of fouling, a process leading to the buildup of solids which creates a false seal that erodes

with time, significantly increasing the risk of a perilous and incessant oil and gas leak. 16

Defendants also alleged that products in question contained inadequate warnings. Defendants

alleged that these product defects rendered the offending products unreasonably dangerous and,

therefore, Schlumberger and Halliburton were liable for all damages caused thereby without

regard to fault.17 These claims were based on Texas state law, general federal or international

maritime law, including the Jones Act, and Mexican law.18

The District Court dismissed Plaintiffs’ state law claims with prejudice, finding that they

were preempted by the Jones Act.19 In addition, the District Court dismissed Plaintiffs’ federal

maritime claims because the Lawyers negligently “failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act.”20 This

14 PLAINTIFFS’ SECOND AMENDED PETITION, p. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2. 15 PLAINTIFFS’ SECOND AMENDED PETITION, p. 6. 16 PLAINTIFFS’ SECOND AMENDED PETITION, p. 6. 17 PLAINTIFFS’ SECOND AMENDED PETITION, p. 6. 18 PLAINTIFFS’ SECOND AMENDED PETITION, p. 6-7. 19 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5. 20 Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 5 OF 29 allegation would have been successful as Section 1916 of the Mexican Civil Code provides for

recovery of only 1/3 of the amount of civil liability.21 Even then, Section 1916 requires to

plaintiff to have “material damages” and is only recoverable for “illegal” conduct on part of the

defendants.22 Moreover, Mexican law only allows the plaintiff to recover from the specific

person responsible for the illegal act.23 Therefore, a Mexico forum would be inadequate to

compensate Plaintiffs. Nonetheless, due to the negligence of Defendants, the only claims

remaining were Plaintiffs’ Mexican claims for civil liability and moral damages.24

The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case.25 More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute.26 More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum.27 The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.28

In response, the Lawyers merely argued that all of the underlying defendants were U.S.

companies or citizens and, therefore, the documents and witnesses regarding liability were

21 Exhibit “C” – Moral Damages in Mexican Law, p. 254. 22 Exhibit “C” – Moral Damages in Mexican Law, p. 254-255. 23 Exhibit “C” – Moral Damages in Mexican Law, p. 256. 24 Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 25 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2. 26 Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 27 Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 6 OF 29 located in the United States.29 However, the Lawyers wholly failed to argue, among other things,

that Mexico was not an available forum because:

1. The waiver of the statute of limitations is invalid under Mexican law;

2. Mexico lacks jurisdiction over United States residents and the unilateral consent by the underlying defendants does not create jurisdiction in Mexico;

3. Plaintiffs would not be voluntarily choosing the Mexican forum as required under Mexican law; and

4. Mexico had lost any initial jurisdiction it ever had over the case after the case was initially filed in the United States.30

Additionally, the Lawyers wholly failed to argue and establish, among other things, that Mexican

courts were not adequate for adjudicating the case because:

1. Mexico does not have procedural safeguards to permit the Plaintiffs to develop their evidence; and

2. Proceedings in Mexico would not be concluded within a reasonable time frame.31

Plaintiffs allege that, had the foregoing substantive arguments been properly asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum. 32 As

demonstrated below, Defendants have not (and cannot) affirmatively show that “but for” their

failures, the District Court would have ruled the same.

28 Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 29 Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 5-6; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 30 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 31 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 32 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 7 OF 29 After a hearing on the underlying defendants’ forum non conveniens motion on March

10, 2011, the District Court conditionally granted the motion.33 The granting of the motion

carried five crucial conditions to the survival of Plaintiffs’ claims:

1. The underlying defendants agree to appear and submit themselves to the jurisdiction of a Mexican federal or state court, waiving any jurisdictional defenses they might normally possess;

2. The underlying defendants agree to waive any statute of limitations defense that they did not possess as of the date each of the seven cases was originally filed;

3. The underlying defendants agree to submit to discovery in the Mexican forum in accordance with the procedural rules of the Mexican court;

4. The underlying defendants agree that they will make all relevant witnesses and documents available in Mexico to the extent consistent with Mexican law; 5. The underlying defendants agree that they will make any employee witness available for trial in Mexico to the extent consistent with Mexican law.34

The order also carried with it a return jurisdiction clause stating that, “Should the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this

Court may reassert jurisdiction upon timely notification of the same.”35 The Lawyers did not

appeal the May 4, 2011 order.36 Plaintiffs allege that, had the Lawyers appealed this order, the

appeal would have been successful.37 Again, Defendants have not (and cannot) affirmatively

show that “but for” this failure, the appeal would have been unsuccessful.

33 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27. 34 PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8-9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27. 35 PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 27. 36 PLAINTIFFS’ SECOND AMENDED PETITION, p. 11. 37 PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 8 OF 29 From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases.38 However, Defendants did not make use of the stipulation to

Mexican jurisdiction the underlying defendants signed as part of the dismissal in the District

Court or otherwise contest the underlying defendant’s resistance to Mexican jurisdiction.39 As a

result, the Mexican courts immediately rejected jurisdiction of the cases.40

On October 18, 2013, Defendants filed a motion to reinstate Plaintiffs’ case in District

Court arguing that Mexico would not accept jurisdiction over the cases.41 After extensive

briefing, the District Court denied Defendants’ attempt to re-file the cases in Texas and exposed

Defendants’ lack of good faith in great detail, noting that Defendants “filed some, but not all, of

the cases dismissed by Judge Ward in Mexico.”42 Judge Crone continued, “Because counsel

made no attempt to litigate those cases in Mexico in compliance with the court’s Memorandum

and Order, there is no basis upon which to reopen them here.”43 Therefore, with regard to all of

the underlying cases, save and except the eleven that were refiled in Mexico, Plaintiffs allege

that Defendants grossly failed to litigate diligently and in good faith thereby invalidating the

waiver of the statute of limitations.44 Further, as discussed below, the waivers were invalid under

Texas law because they were indefinite and not specific.

With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.”45 Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge

38 PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 3. 39 PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5. 40 PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5. 41 PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 5. 42 Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9. 43 Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9. 44 PLAINTIFFS’ SECOND AMENDED PETITION, p. 10.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 9 OF 29 Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly.46 Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying

lawsuits.47 The District Court stated that Plaintiffs could “not seek reinstatement in [the District

Court] unless and until they have pursued their claims in Mexico with diligence and good faith,

including seeking final appellate review of any Mexican dismissal order.”48

Several months after the dismissal, the Itkin Defendants sent out deceitful withdrawal

letters wherein they attempted to conceal and downplay the significance of their wrongdoing and

abandoning Plaintiffs.49 The one bit of truth contained within these letters was Kurt Arnold’s

recognition that the chances of the District Court accepting jurisdiction over the cases in light of

what had occurred was slim. Specifically, Mr. Arnold states: “I think the chances of the Court

accepting the jurisdiction for these cases even after following all steps [and refiling the cases in

Mexico] is remote.”50 Mr. Arnold is accurate as any claim now filed in Mexico would be

dismissed on limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to comply with the initial March 10, 2011 order from the District Court

requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in good

45 Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9. 46 Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11-15. 47 PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; See Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11- 15. 48 Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 15. 49 Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients. 50 Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 10 OF 29 faith.51 In fact, as explained below, the waiver was invalid under Texas law to begin with and,

under Mexican law, limitations may only be waived for a certain period of time. Accordingly,

the waivers and stipulations are of no consequence at this late date and, as a result, Plaintiffs’

claims are forever barred in both the United States and Mexico.52

Immediately after this lawsuit was filed, the Lawyers filed the present pleas to the

jurisdiction arguing that Plaintiffs must continue to pursue their clearly-barred underlying claims

in Mexico and, upon dismissal, again attempt to have the underlying case reinstated in Texas

before their legal malpractice claims are ripe for adjudication. Thus, the Lawyers request the

Court to dismiss this action or, alternatively, abate these proceedings until the filings of the

underlying case have occurred. For the reasons stated herein, Defendants’ pleas to the

jurisdiction and request for abatement should be denied.

III ARGUMENT & AUTHORITIES

Ripeness is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000). Ripeness focuses on when an action may be brought. Id. at 851.

“[R]ipeness, like standing, is a threshold issue that implicates subject matter jurisdiction, and like

standing, emphasizes the need for a concrete injury for a justiciable claim to be presented.” Id.

When, as here, a defendant asks a court to dismiss the case for want of subject matter

jurisdiction, the Court must overrule the motion unless the moving parties’ evidence clearly

demonstrates that the court lacks jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). Defendants have utterly failed to carry their burden.

51 PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 11 OF 29 A. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE IT IMPLICATES THE MERITS OF PLAINTIFFS’ CLAIMS.

Defendants essentially argue that their conduct caused no damage to Plaintiffs because

the underlying cases can still be refiled in Mexico.53 However, as discussed above, the failure of

Defendants to litigate Plaintiffs’ case in good faith is only one act of negligence at issue.

Plaintiffs have also sued Defendants for failing to properly maintain Plaintiffs’ maritime claims,

failing to properly respond to the forum non conveniens motions and, alternatively, failing to

appeal the District Court’s dismissal of the underlying case.54 Regardless, the malpractice

concerning Defendants’ good faith necessarily implicates the merits of this lawsuit because if the

statute of limitations waiver is void due to Defendants’ failure to litigate the claims in good faith,

then Plaintiffs have been damaged as a result of Defendants’ negligence because the lawsuits

may not be refiled in Mexico.

The Beck Redden Defendants argue that “there has been no court order…indicating that

the statute of limitations on Plaintiffs’ claims has run, or that the statute of limitations would not

be honored by the Mexican courts.”55 However, a plaintiff in a legal malpractice case who is

suing his attorney for missing a statute of limitations is not required to file the underlying case

anyway in order to obtain a court order stating that the statute of limitations has run on the

plaintiff’s claim. See Rhodes v. Batilla, 848 S.W.2d 833, 842 (Tex. App. – Houston [14th Dist.]

1993, writ denied)(“there was no requirement that [the client] appeal the final assessment by the

IRS in order to establish the open and obvious malpractice committed by appellant…”). Rather,

the plaintiff must prove that his claims are barred (i.e. causation) by way of expert testimony.

Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)(“In

52 PLAINTIFFS’ SECOND AMENDED PETITION, p. 11. 53 See BECK REDDEN DEFENDANTS’ PLEA, p. 7; ITKIN DEFENDANTS’ PLEA, p. 3. 54 PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8, 11, 13-14.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 12 OF 29 general, one proves causation in a legal malpractice suit by expert testimony.”). Thus, to prove

causation in this case, Plaintiffs must introduce expert testimony to establish that, even if they

would refile the claims in Mexico, they would be dismissed due to the Defendants’ conduct. See

Id. (affirming summary judgment against client because the client “did not offer expert testimony

from which one could infer that the underlying case would have had merit…”); See also

Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex. 2004)(in a legal malpractice case a

jury, with the benefit and guidance of expert testimony, is required to determine whether the

“omitted evidence was different from, and more compelling than, the evidence and testimony

presented [to the underlying judge]” and “whether the result of the underlying …proceeding

would have been different but for the alleged malpractice.”).

When jurisdictional facts are disputed, the manner in which the trial court analyzes the

jurisdictional challenge depends on whether the disputed jurisdictional fact issues do or do not

implicate the merits of the plaintiff's case. See University of Tex. v. Poindexter, 306 S.W.3d 798,

806-07 (Tex. App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do not

implicate the merits, the court—not the jury—must make the necessary factual findings to

resolve the jurisdictional issue. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). However, when, as here, “the jurisdictional inquiry does implicate the merits of the

plaintiff’s case, a very different standard applies.” Martin v. Nat'l Instruments Corp., 2013 Tex.

App. LEXIS 7021, at *6 (Tex.App. – Austin June 11, 2013, no pet.). “In that instance, the trial

court does not act as a fact-finder.” Id. (emphasis added)(citing Poindexter, 306 S.W.3d at 807

and Miranda, 133 S.W.3d at 227-28). “If the evidence submitted by the parties creates a genuine

issue of material fact regarding a disputed jurisdictional fact, then the trial court cannot grant the

motion to dismiss, and the fact issue must be resolved by the fact-finder at trial.” Id. at *6-*7.

55 See BECK REDDEN DEFENDANTS’ PLEA, p. 2. PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 13 OF 29 At this stage, the Defendants that have the burden to show through their pleas to the

jurisdiction and attached evidence that this Court lacks jurisdiction as a matter of law. Miranda,

133 S.W.3d at 228. The only evidence submitted by Defendants are certain pleadings from the

underlying proceedings and court orders stating that Plaintiffs can allegedly refile their cases in

Mexico.56 Using these exhibits, Defendants argue that the statements in Plaintiffs’ pleadings are

invalid and that Plaintiffs’ underlying claims are not forever barred because Plaintiffs have not

validly attempted to re-assert their claims in the Courts of Mexico and, therefore, jurisdiction is

not conferred upon this Court.57 However, the Texas Supreme Court and the Houston Court of

Appeals have made clear that such an assertion “attacks [the plaintiff’s] right of recovery” and

should be made in a motion for summary judgment, not in a plea to the jurisdiction. See

Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App –

Houston [14th Dist.] 2006, pet. denied)(citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-

77 (Tex. 2000)). “The right of a plaintiff to maintain a suit, while frequently treated as going to

the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief

rather than to the jurisdiction of the court to afford it.” Kazi, 12 S.W.3d at 76-77. Therefore, the

Court should deny Defendants’ pleas to the jurisdiction as they implicate the merits of Plaintiffs’

claims. See Concerned, 209 S.W.3d at 673 (holding it was error for the trial court to dispose of

claims by way of a plea to the jurisdiction rather than a summary judgment when the defendants

alleged that the court lacked jurisdiction because plaintiff had not made a valid open records

claim to confer jurisdiction).

56 See, e.g., BECK REDDEN DEFENDANTS’ PLEA, at Exhibits, generally. 57 ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 14 OF 29 B. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE DEFENDANTS’ NEGLIGENCE CAUSED THE DISMISSAL OF PLAINTIFFS’ FEDERAL LAW CLAIMS AND THESE CLAIMS CANNOT BE REFILED IN MEXICO.

Defendants’ sole argument for lack of jurisdiction and/or abatement is based on the false

premise that Plaintiffs’ malpractice claims all relate to their inability to pursue their Mexican law

claims in Mexico. While that is certainly part of Plaintiffs’ negligence allegations against

Defendants, Plaintiffs’ live pleading also alleges that Defendants negligently lost Plaintiffs’

ability to pursue Jones Act claims in the United States by failing to properly plead those claims

and/or competently resist the underlying defendants’ attempts to dismiss Plaintiffs’ underlying

claims.58 Specifically, Plaintiffs allege: “the District Court dismissed Plaintiff’s federal maritime

claims because the Lawyers negligently failed to allege that there was no available remedy in

Mexico, as required to pursue a federal maritime claim under the Jones Act.” 59 Nothing about

Plaintiffs’ ability or inability to pursue Mexican law claims in Mexico changes the effect of

Defendants’ malpractice related to Plaintiffs’ Jones Act claims.

“The party contesting jurisdiction must meet the summary-judgment standard of proof to

support its contention that the trial court lacks subject-matter jurisdiction.” HSBC Bank USA,

N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012, pet. dism'd). “This means the

movant must support its plea with conclusive evidence establishing facts that defeat

jurisdiction.” Id. “If the movant fails to meet its burden, the claimant has no burden at all, and the

jurisdictional challenge fails.” Id. “The defendant cannot simply deny the existence of

jurisdictional facts and force the plaintiff to raise a fact issue.” Id. (internal quotations omitted).

Even if Plaintiffs could still pursue their Mexican law claims in Mexico, which Plaintiffs deny,

Plaintiffs have forever lost their ability to pursue their Jones Act claims in the United States due

58 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 15 OF 29 to the negligence of Defendants. Defendants’ pleas to the jurisdiction are devoid of any

argument, analysis or evidence proving, as a matter of law, that these claims could be refiled in

Mexico. For this reason alone, Defendants’ pleas to the jurisdiction should be denied.

C. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE DEFENDANTS’ NEGLIGENCE CAUSED THE DISTRICT COURT TO DISMISS PLAINTIFFS’ TEXAS CASE IN THE FIRST INSTANCE.

Defendants’ pleas to the jurisdiction should also be denied because Defendants have not

disproven Plaintiffs’ theory that, had the proper substantive arguments been asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court.60 This theory of malpractice may be simplified by the venerable principle “garbage in,

garbage out.”61 If a court is presented with inaccurate or incomplete evidence and argument it is

going to reach inaccurate conclusions and produce an inaccurate result. See United States v.

Seminerio, 680 F. Supp. 2d 523, 542 (S.D.N.Y. 2010)(noting that ethics opinion was “a classic

illustration of ‘garbage in, garbage out’ because the individual seeking the opinion omitted

material facts in requesting the opinion); See also Moyle v. Liberty Mut. Ret. Benefit Plan, 2013

U.S. Dist. LEXIS 2237 at *7 (S.D. Cal. Jan. 7, 2013)(noting the difficulty of the court in having

to render a ruling because of inadequate and confusing briefing, stating: “[t]he Court has been

asked to rule and it will do so. The result, considering the confusing, incomplete mishmash

before the Court, may be a function of the old adage, ‘garbage in, garbage out.’”); Smith v. ABN

AMRO Mortg. Group, Inc., 2007 U.S. Dist. LEXIS 26585 (S.D. Ohio Mar. 27, 2007)(ordering

pro se plaintiffs to obtain counsel due to the inadequacies of their court filings and recognizing

59 PLAINTIFFS’ SECOND AMENDED PETITION, p. 7. 60 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 61 This principle is most commonly referred to in computer science but is traced back to the philosopher Charles Babbage: “On two occasions I have been asked,—'Pray Mr. Babbage, if you put into the machine wrong figures,

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 16 OF 29 that, because of this, “the ‘garbage in - garbage out’ computer analogy may characterize the

Court's attempt to render a fair and just verdict.”); Hunt v. Sullivan, 1992 U.S. Dist. LEXIS

13091 at *9 (N.D. Ill. Aug. 31, 1992)(noting that Appeals Counsel’s decision denying

supplemental security income was based on an inadequate record, stating “[t]his was simply the

social security version of what in familiar computer jargon bears the GIGO acronym: ‘Garbage

in, garbage out.’”).

In articulating this concept with respect to the judicial system, one California court noted

that, while “[t]he federal judicial process is not a GIGO (garbage in, garbage out) system” with

respect to the law – because “a federal judge has the responsibility to make his or her decision

based on the correct law” – it may certainly be so with respect to the facts as “the federal judge is

dependent on the parties to present the competent, credible evidence from which the judge is to

make the required findings of fact.” Cal. Franchise Tax Bd. v. Wilshire Courtyard (In re

Wilshire Courtyard), 2015 Bankr. LEXIS 1172 at *19 (B.A.P. 9th Cir. Apr. 7, 2015)(emphasis

added). In this case, Plaintiffs allege that the Lawyers wholly failed to argue a litany of reasons as

to why Mexican courts were not adequate for adjudicating the case and, had the listed substantive

arguments been properly asserted by the Lawyers in the response to the forum non conveniens, the

outcome of the underlying case would have been different. 62 Simply put, had the Lawyers put forth

competent, credible evidence before the District Court concerning the adequacy of the Mexican

forum rather than allowing the inaccurate “garbage” that was presented to it by the underlying

defendants to go uncontroverted, then the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiffs claims to proceed forward in their chosen forum.63

will the right answers come out?' . . . I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.” Charles Babbage, PASSAGES FROM THE LIFE OF A PHILOSOPHER 67 (1864). 62 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 63 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 17 OF 29 The Texas Supreme Court has held that, in a legal malpractice case such as this, what

would have happened had proper argument and evidence been submitted in the underlying case

is a fact question for the jury. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex.

2004). Specifically, a jury, with the benefit and guidance of expert testimony, is required to

determine whether the “omitted evidence was different from, and more compelling than, the

evidence and testimony presented [to the underlying judge]” and “whether the result of the

underlying …proceeding would have been different but for the alleged malpractice.” Id. at 118.

Thus, because this Court at this juncture must take Plaintiffs’ pleadings as true, Miranda, 133

S.W.3d at 226, whether the omitted evidence and argument set forth in Plaintiffs’ Petition –

which was omitted from the response filed by the Lawyers in the underlying case – “was

different from, and more compelling than, the evidence and testimony presented” to the courts in

the underlying case and whether the District Court would have ruled differently had this

evidence and argument been presented are all fact issues for the jury. See Alexander 146 S.W.3d

at 118 (in legal malpractice case, jury was charged with deciding whether, in reasonable

probability, a bankruptcy judge would have decided the underlying adversary proceeding

differently, absent the alleged malpractice). Accordingly, Defendants’ pleas to the jurisdiction

are without merit.

D. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE NEITHER A MEXICO NOR A TEXAS COURT WILL ACCEPT JURISDICTION OF THE UNDERLYING CASE AS THE CLAIMS ARE BARRED BY LIMITATIONS.

Defendants argue that dismissal is appropriate because Plaintiffs’ malpractice claims are

not yet ripe as “Plaintiffs have not suffered any concrete injury” and the question of whether a

Mexico court will still accept jurisdiction over Plaintiffs’ claims “is a hypothetical one at this

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 18 OF 29 point.”64 To support this argument, Defendants claim that Texas courts have “determined that

statute of limitations defenses can be waived under Mexico law” and cite Seguros Comercial

Ams. S.A. De C.V. v. American President Lines, 933 F. Supp. 1301 (S.D. Tex. 1996) as support.

Yet, in Seguros, the plaintiff’s expert did not provide the court with any authority for its position

that waivers of limitations were invalid under Mexican law. Id. at 1308. Thus, that court never

analyzed Mexican law in this regard or considered the overall validity of the waivers. See Id.

The Beck Redden Defendants also cite to Zermeno v. McDonnell Douglas Corp., 246 F.

Supp. 2d 646 (S.D. Tex. 2003) and Dominguez-Cota v. Cooper Tire & Rubber Co., 284 F. Supp.

2d 444 (N.D. Miss. 2003) to support their wavier of limitations argument.65 Like the court in

Seguros, however, neither the courts in Zermeno nor Dominguez-Cota truly analyzed the ability

to waive limitations under Mexican law. See Zermeno, 246 F. Supp. 2d at 658 (holding

stipulation to waive limitations is valid under Mexican law without any analysis); see also

Dominguez-Cota, 284 F. Supp. 2d at 448 (holding same).

On the other hand, in the more recent Texas federal case Sacks v. Four Seasons Hotel

Ltd., 2006 U.S. Dist. LEXIS 17768 (E.D. Tex. Mar. 7, 2006), the court denied the defendants’

motion to dismiss on forum non conveniens based, in part, on the plaintiff’s Mexican law

experts’ properly supported testimony that waivers of limitations are meaningless in Mexico. Id.

at *18. In Sacks, the plaintiff sued a Four Seasons hotel in Mexico for the death of her husband.

Id. at *2-3. The hotel sought to dismiss the action on forum non conveniens grounds and, like the

underlying defendants, agreed to waive any defense of limitations. Id. at *10. In denying the

hotel’s motion, the Sacks court considered Mexican law as supported by plaintiff’s Mexican law

expert and recognized that “stipulations made before a United States court to waive the Mexican

64 ITKIN DEFENDANTS’ PLEA, p. 6. 65 BECK REDDEN DEFENDANTS’ PLEA, p. 5-6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 19 OF 29 statute of limitations are meaningless in Mexico.” Id. at *18. Thus, the Sacks court found that

the case could not be refiled in Mexico because it was past the statute of limitations and,

therefore, the plaintiff did not have an adequate remedy under Mexican law. See Id. Accordingly,

more recent Texas case law indicates that, when properly and/or competently challenged with

reference to evidence and Mexican law, waivers of limitations are ineffective as a basis for

granting a forum non conveniens.

In fact, the underlying defendants’ waiver of limitations is invalid under Texas law and,

therefore, Plaintiffs may not refile their underlying case in Texas or anywhere else because the

claims are past the statute of limitations – thereby rendering a “concrete injury” to Plaintiffs. In

Texas, parties may agree to waive the statute of limitations before or after the statutory bar has

fallen. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 280-281 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied); Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex. App.--Austin

1996, no writ); American Alloy Steel v. Armco, Inc., 777 S.W.2d 173, 177 (Tex. App. – Houston

[14th Dist.] 1989, no writ); However, “[a] general agreement in advance to waive or not to plead

the statute of limitations on a particular obligation is void as against public policy.” Segal, 155

S.W.3d at 281; American Alloy, 777 S.W.2d at 177. Rather, “[t]he agreement must be specific

and for a pre-determined length of time.” Segal, 155 S.W.3d at 281. The same rule applies under

Federal law. Lett v. Crown Cork & Seal Co., 2015 U.S. Dist. LEXIS 14627, at *9-*10, at n. 2

(N.D. Tex. Feb. 5, 2015).

Intentionally ignoring the foregoing authority, Defendants contend that dismissal is

appropriate because Plaintiffs can still allegedly refile their claims in Mexico or, if the Mexican

courts refuse jurisdiction, the District Court, because “the underlying defendants … have filed a

binding stipulation in Federal Court stating that they have waived any argument that the statute

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 20 OF 29 of limitations on those claims have expired.”66 However, the alleged stipulation concerning the

statute of limitations in the underlying case did not meet the criteria for an effective tolling. The

stipulation merely stated “Defendants agree to waive any statute of limitations or laches defense

that they did not possess as of the date this lawsuit was originally filed.”67 The sentence is not

specific and does not provide a pre-determined length of time for a tolling period. See Duncan,

912 S.W.2d at 859; Lett, 2015 U.S. Dist. LEXIS 14627, at *9-*10. Therefore, as a matter of

Texas law, Plaintiffs would not be entitled to a tolling of the statute for an undetermined period

of time. See Hoff v. Texas Med. Liab. Trust, 1998 Tex. App. LEXIS 2219, at *8 (Tex.App. –

Austin Apr. 16, 1998, pet. denied)(affirming summary judgment on statute of limitations ground

because a waiver of limitations was void as against public policy because it was not specific and

did not provide for a pre-determined length of time). Accordingly, with the incident occurring on

October 23, 2007, the statute of limitations on Plaintiffs’ underlying claims have clearly lapsed

and the waiver of limitations is invalid as a matter of law. See Id.

The waiver of limitations does not fare any better under Mexican law. Plaintiffs’

underlying personal injury claims arise out of a maritime accident that occurred in Mexican

territorial waters, those claims are governed by Mexican federal law, including the Federal Civil

Code. MEXICAN CONSTITUTION, Art. 27; MEXICAN FEDERAL CIVIL CODE, Art. 1.68 The

limitations period applicable to Plaintiffs’ claims is 2 years from the date on which the injury

occurred. MEXICAN FEDERAL CIVIL CODE, Art. 1934. In this case, absent the filing of any suit,

limitations would have run on Plaintiffs’ claims on October 23, 2009, the second anniversary of

the accident. Id. While the Mexican Federal Civil Code provides that the running of limitations

66 ITKIN DEFENDANTS’ PLEA, p. 2. 67 Exhibit “F” – Stipulation, p. 1. 68 For the Court’s convenience, Plaintiffs have attached English and Spanish versions of the applicable Mexican statutes and codes referred to herein as Exhibit “E”.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 21 OF 29 may be tolled by the commencement of any action of which the potentially liable party receives

notice, the code also provides that there is no tolling of limitations if the judicial proceeding that

initially tolled limitations is dismissed. See MEXICAN FEDERAL CIVIL CODE, Art. 1168. Applied

literally, Judge Ward’s dismissal of the underlying case in May 2011 had the effect under

Mexican law of stripping Plaintiffs of the benefit of tolling. In other words, by virtue of the 2011

dismissal, Plaintiffs’ Mexican law claims would be deemed to have been barred by limitations as

of October 23, 2009 unless a Mexican court would accept the underlying defendants’ waiver of

limitations.

While there is some question as to whether a Mexican court would even accept a waiver

of limitations made before a United States court, see Sacks, 2006 U.S. Dist. LEXIS 17768 at *18,

the Mexican Federal Code does seem to provide a proper way for a party to renounce or waive

limitations in Mexico. See MEXICAN FEDERAL CIVIL CODE, Art. 1141. Article 1141 of the

Mexican Federal Civil Code provides:

Las personas con capacidad para enajenar pueden renunciar la prescripción ganada, pero no el derecho de prescriber para lo sucesivo.

Professor Jorge Vargas, in what is viewed as a leading, authoritative translation of the Mexican

Federal Civil Code, translates Article 1141 as follows:

Any person who has the capacity to convey may renounce the limitations period attained, but not the right of adverse possession to accrue in the future.

Jorge A. Vargas, MEXICAN CIVIL CODE ANNOTATED – BILINGUAL EDITION 431 (West 2009)

(emphasis added). The maximum limitations period that can be “attained” is two years for the

claims at issue in the underlying case. MEXICAN FEDERAL CIVIL CODE, Art. 1934. Therefore,

even assuming that a waiver of limitations is valid and appropriately obtained under Mexican

law, the underlying defendants would have had to waive limitations in a Mexican court prior to

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 22 OF 29 October 23, 2011. Because Defendants did not refile Plaintiffs’ underlying cases in Mexico until

February 2013, Plaintiffs’ claims were subject to a limitations defense by this date that could no

longer be waived in Mexico and the contention that the underlying defendants’ statute of

limitations waivers would still be honored by the Mexican courts in 2015 is incorrect. See

MEXICAN FEDERAL CIVIL CODE, Art. 1141. Thus, Plaintiffs’ Mexican law claims may not be

refiled in Mexico and, with Plaintiffs’ United States claims being irretrievably lost due to

Defendants’ negligence, these claims are also forever barred.

The Defendants urge this Court to dismiss this action and require Plaintiffs – Mexican

nationals with little or no means and all of whom suffered injury or loss due to the underlying

tragedy – to locate and obtain a Mexican law firm to attempt to pursue their now stale claims

against the underlying defendants. The Lawyers argue that, because Plaintiffs have not done so,

“Plaintiffs’ claimed injury has not and may never occur and consequently, is based entirely on

contingent and hypothetical facts.”69 As support, Defendants cite the Court to two Dallas cases:

Rothrock v. Akin, Gump, Hauer & Feld, 1994 Tex. App. LEXIS 3526 (Tex.App. – Dallas May

11, 1994, no pet.) and Philips v. Giles, 620 S.W.2d 750 (Tex. Civ. App.—Dallas 1981, no writ).

However, not only are Rothrock and Philips distinguishable from the present case, but the

proposition in these cases – that a cause of action for malpractice does not accrue until a

deficiency is assessed – is contrary to Houston Court of Appeals precedent which this Honorable

Court must follow. See Rhodes, 848 S.W.2d at 842.

In Rhodes, the client sued her attorney for gross negligence in connection with the

client’s tax defense from the IRS. Id. at 837. The attorney argued – similar to Defendants in this

case – that the claim was premature because “she had not exhausted her administrative or

judicial remedies prior to bringing this action.” Id. at 842. Rejecting this argument, the Houston

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 23 OF 29 Court of Appeals made clear that “there was no requirement that [the client] appeal the final

assessment by the IRS in order to establish the open and obvious malpractice committed by [the

lawyer].” Id.; See also Estate of Jobe v. Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana

2014, no pet.)(distinguishing Philips and holding that malpractice claim may accrue even before

tax penalties are assessed). Defendants’ request for this Court to require Plaintiffs to refile their

clearly already barred claims in Mexico and, later, the District Court (and potentially be subject

to sanctions under Federal Rule of Civil Procedure 1170) is out of line with the law set forth in

Rhodes, Berry and other malpractice cases which do not require a malpractice plaintiff to appeal

decisions or otherwise file lawsuits elsewhere to establish the “open and obvious” malpractice of

Defendants. See Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 785-86

(Tex. 2006)(in malpractice action involving estate planning, cause of action for malpractice

accrued when attorney committed negligent act, not when estate suffered the tax consequences of

that act).

Texas law has made clear that a cause of action for malpractice accrues “when facts have

come into existence that authorize a claimant to seek a judicial remedy”. Apex Towing Co. v.

Tolin, 41 S.W. 3d 118, 120 (Tex. 2001). “[A] cause of action accrues when a wrongful act causes

some legal injury, even if the fact of injury is not discovered until later, and even if all resulting

damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A legal malpractice

claim is governed by the limitations period prescribed in Section 16.003(a) of the Texas Civil

Practices & Remedies Code because it is considered a claim for personal injury. Estate of Degley

v. Vega, 797 S.W.2d 299, 302-303 (Tex.App. – Corpus Christi 1990, no writ). Section 16.003(a)

69 BECK REDDEN DEFENDANTS’ PLEA, p. 7. 70 See Comer v. Interstate United Corp., 119 F.R.D. 392, 393 (N.D. Ill. 1988) (sanctioning attorney under Federal Rule of Civil Procedure 11 for filing a frivolous pleading because a cursory investigation of documents contained in

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 24 OF 29 states that “a person must bring suit for … personal injury … not later than two years after the

day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.003(a). Thus, the legal

malpractice claims in this case accrued when Plaintiffs suffered some injury and Plaintiffs have a

legal right to file this lawsuit now. A dismissal under these circumstances merely rewards and

incentivizes Defendants dilatory and negligent acts in failing to properly handle Plaintiffs’

underlying claims from the beginning of their representation until they belatedly terminated the

representation.

E. DEFENDANTS’ REQUEST FOR ABATEMENT SHOULD ALSO BE DENIED.

In the alternative, and despite their own failures to comply with the District Court’s

orders over the last several years, Defendants request this Court to abate this case to “wait and

see if Plaintiffs follow through on the federal district courts’ orders…”71 In support of their

request for abetment, Defendants cite primarily to Philips v. Giles, 620 S.W.2d 750 (Tex. Civ.

App.—Dallas 1981, no writ) and In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462

(Tex.App. – Fort Worth 2012, orig. proceeding). Both Philips and Tex. Collegiate are

distinguishable and the circumstances of this case do not warrant abatement.

In Philips, a wife's ex-husband, as part of a negotiated divorce settlement, executed a

promissory note in her favor for $500,000.00 as compensation for her community property

interest in a jointly-owned business. Id. at 750. The wife’s attorney told her that there would be

no tax consequences arising from a divorce settlement with her ex-husband, including the note

payments. Id. The wife’s accountant disagreed and encouraged her to file income tax returns

which reported the monthly note payments from her ex-husband as income. Id. Relying on the

accountant’s advice, the wife filed the tax returns and sued the defendant for legal malpractice.

plaintiff’s file irrefutably demonstrated that he had not filed his suit within set time limits or, at best, plaintiff's attorney failed to conduct reasonable investigation before filing suit).

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 25 OF 29 Id. However, the IRS never assessed any taxes on the money and had not made a determination

at the time suit was filed that the note payments were income. Id. The Dallas Court of Appeals

ruled that the trial court correctly abated the case because the suit for malpractice was premature,

no damages had been established, and it was possible that none would ever be established. Id. at

750. Simply put, there was no certainty of any injury-causing conduct on the part of the attorney.

See Id.

First, Philips has been severely criticized by the Fifth Circuit Court of Appeals for

placing the client in a discriminating situation:

Our trouble with this decision is on two levels. First, the court placed the taxpayer in an unfortunate “catch-22”. She could choose to pay the IRS the money she thinks she owes without being able to recover from the party whose acts caused her to owe this liability, or she can deliberately defy the tax code by refusing to pay what she perceives to be her full tax liability. This is not a fair choice for the taxpayer because, either way, she loses.

State Farm Life Ins. Co. v. Swift (In re Swift), 129 F.3d 792, 800 (5th Cir. Tex. 1997). The court

in Swift also criticized Philips for prematurely dismissing the case for lack of damages contrary

to well-established law concerning the discovery rule:

We also find the decision troubling in that the court dismissed the suit because of a lack of damages when there was a genuine issue of fact concerning the existence of damages. As [sic] such an early stage, it was premature for the court to make the assumption.

Id. Indeed, the Texarkana Court of Appeals recently noted that “Philips does not stand for the

idea that an injury cannot be discovered until a penalty is actually assessed” because “[s]uch a

holding would be contrary to the caselaw regarding the discovery rule…” Estate of Jobe v.

Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana 2014, no pet.).

Second, the facts of this case are distinguishable from Philips. As discussed above, the

Lawyers’ failures concerning the Jones Act claims was injury-causing conduct because it

71 ITKIN DEFENDANTS’ PLEA, p. 8-9. PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 26 OF 29 immediately damaged Plaintiffs as these claims were immediately lost. Plaintiffs cannot refile

these claims in Mexico because these claims do not exist under Mexican law. Likewise,

Defendants failure to litigate the cases in Mexico in good faith and subsequent lapse of the

statutes of limitations in both Texas and Mexico has now prevented the cases from being refiled

in Mexico or Texas. Accordingly, unlike the yet-to-be-determined damages at issue in Philips,

Plaintiffs have suffered concrete damages and abatement is inappropriate. See Rhodes, 848

S.W.2d at 842.

Moreover, unlike the parties in this case, the parties in Tex. Collegiate “acknowledge[d]

that the statute of limitations [was] not at issue…” Tex. Collegiate, 367 S.W.3d at 465.

Furthermore, unlike the situation in Tex. Collegiate where the malpractice claims “may have no

merit upon final resolution” of the underlying litigation, the Plaintiffs’ malpractice claims at

issue in this case concerning the Jones Act claims, the failure to appeal the District Court’s order

and the failure to prosecute the claims in good faith leading to the lapsing of the statute of

limitations will have merit irrespective of whether the claims are refiled in Mexico. Accordingly,

abatement is not appropriate.

IV CONCLUSION & PRAYER

The damages at issue are not contingent upon the refiling of the underlying case in

Mexico. Several instances of negligence plead in Plaintiffs’ current pleadings exist whether the

claims are refiled or not. Moreover, the waivers of limitations are invalid under Texas and

Mexico law because they are void against public policy or because of Defendants’ negligence in

failing to timely and diligently prosecute these cases in Mexico. Plaintiffs’ claims against

Defendants accrued when these acts of negligence occurred and Plaintiffs are not required to file

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 27 OF 29 untimely lawsuits elsewhere to establish the “open and obvious” malpractice of Defendants.

Simply put; Plaintiffs’ claims are ripe for adjudication and should proceed as filed.

WHEREFORE, Plaintiffs pray that the Court deny Defendants’ Pleas to the Jurisdiction

and Alternative Pleas in Abatement and grant Plaintiffs any further relief, at law and in equity to

which Plaintiffs may show themselves to be justly entitled, to which the Court believes Plaintiffs

to be deserving, and for which Plaintiffs will ever pray.

Respectfully submitted,

/ s / David Eric Kassab LANCE CHRISTOPHER KASSAB Texas State Bar No. 00794070 lck@texaslegalmalpractice.com DAVID ERIC KASSAB Texas State Bar No. 24071351 dek@texaslegalmalpractice.com 1420 Alabama Houston, Texas 77004 t.713.522.7400 f.713.522.7410

/ s / Brett Wagner BRETT WAGNER Texas State Bar No. 20654270 brett@dwlawyers.com LARRY JOE DOHERTY Texas State Bar No. 05950000 larry@dwlawyers.com RYAN W. SMITH Texas State Bar No. 24063010 ryan@dwlawyers.com 13810 Champion Forest Drive, Suite 225 Houston, Texas 77069 t.281 583-8700 f.281 583-8701

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 28 OF 29 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 12th day of August, 2015.

/s/ David Eric Kassab David Eric Kassab

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 29 OF 29 Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 1 of 27 PageID #: 4642

EXHIBIT "A" IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

MARIA SANTOS LOPEZ DOMINGUEZ § Individually and next friend of KAREN § MARLEN ANDRADE LOPEZ, et al, § Plaintiffs, § CIVIL ACTION NO. 9:08-cv-200 (TJW) § v. § § GULF COAST MARINE & ASSOCIATES, § INC, et al, § Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Consolidated Motion to Dismiss for Forum Non

Conveniens (Dkt. No. 196 in Case No. 9:08cv200). On September 15, 2010, the Court

consolidated the following seven cases for the limited purpose of briefing and deciding the

common forum non conveniens issue in each case: Dominguez v. Gulf Coast Marine & Assoc.,

Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv150; Friaz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf

Coast Marine & Assoc., Inc., et al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine &

Assoc., Inc., et al., Case No. 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al.,

Case No. 9:09cv164; De La Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv167 (Dkt. No. 196 in Case No. 9:08cv200).1 The cases all arise out of the same accident

and involve virtually identical causes of action against the same defendants.2 Pursuant to the

Court’s Order, Defendants Schlumberger Technology Corporation (“STC”), Schlumberger

 1 The Order is Dkt. No. 63 inCase No. 9:09cv150, Dkt. No. 87 in Case No. 9:09cv162, Dkt. No. 83 in Case No. 9:09cv156, Dkt. No. 77 in Case No. 9:09cv170, Dkt. No. 51 in Case No. 9:09cv164, and Dkt. No. 100 in Case No. 9:09cv167. 2 Glen Carter is a defendant in Case Nos. 9:08cv200, 9:09cv164, and 9:09cv167, but has been dismissed from Case Nos. 9:09cv150, 9:09cv156, 9:09cv162, and 9:09cv170.

1  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 2 of 27 PageID #: 4643

Limited (“SL”) (collectively, Schlumberger), Gulf Coast Marine & Associates (“Gulf Coast”),

Glen Carter (“Carter”),3 Halliburton Energy Services, Inc., f/k/a Halliburton Company

(“Halliburton”), and Matthews-Daniel Company (“Matthews-Daniel”) (collectively,

“Defendants”) filed a consolidated motion to dismiss all seven consolidated cases for forum non

conveniens. The Court held a hearing on Defendants’ consolidated motion on March 10, 2011.

Having considered the parties’ arguments, the applicable law, and the evidence presented, the

Court CONDITIONALLY GRANTS Defendants’ Consolidated Motion to Dismiss for Forum

Non Conveniens (Dkt. No. 225 in Case No. 9:08cv200). The Court FURTHER ORDERS that,

subject to a return jurisdiction clause and the other conditions laid out in this order, the following

seven cases be dismissed for forum non conveniens: Dominguez v. Gulf Coast Marine & Assoc.,

Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv150; Friaz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf

Coast Marine & Assoc., Inc., et al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine &

Assoc., Inc., et al., Case No. 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al.,

Case No. 9:09cv164; De La Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv167.

I. Factual Background

These cases are based on an accident that occurred on a mobile drilling rig and oil

production platform just north of the Mexican coast in the Gulf of Campeche on October 23,

2007. On October 21, 2007, the drilling rig Usumacinta was moved alongside the KAB-101

production platform to begin work on several oil wells in Mexican territorial waters,

approximately 18 kilometers off the coast in the Bay of Campeche. Mexico’s state-owned oil

 3 Defendant Glen Carter was named in the Motion, but was left out of the ECF filing caption. Glen Carter then filed an adoption and joinder in the consolidated motion (Dkt. No. 227).

2  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 3 of 27 PageID #: 4644

company, Petróleos Mexicanos (“PEMEX”), owned the KAB-101 platform, and Perforadora

Central, a Mexican company, owned the Usumacinta rig and leased it to PEMEX. Plaintiffs are

all Mexican residents, and they, or their decedents, were employed by Perforadora Central,

PEMEX, or PEMEX contractors Central de Desarrollos Marinos, S.A. de C.V. and Sercomsa,

S.A. de C.V. (Servicios Comodatarios), to assist on the rigs.

On October 23, 2007, the Bay of Campeche was engulfed in hurricane-level conditions

when a cold front moved into the Bay. The Usumacinta rig shifted positions during the storm

and struck the KAB-101 platform, damaging one of the oil wells’ production valve trees and

causing a hydrocarbon leak. After efforts to control the leak failed, Plaintiffs allege that PEMEX

ordered the evacuation of the platform and drilling rig. The workers boarded two lifeboats,

known as mandarinas, which PEMEX owned and operated. While in the water, the mandarinas,

began taking on water and sustained damage in the rough water. Some of the occupants

abandoned the mandarinas, both of which eventually capsized. Once the storm subsided, a

search was undertaken and 68 people were rescued. However, 22 people died as a result of the

accident.

Plaintiffs allege that the accident was set into motion when Defendant Matthews-Daniel,

a United States company based in Texas, approved the decision to move the Usumacinta rig next

to the KAB-101 platform in near-hurricane-force winds and anchor it to the seafloor next to the

rig. According to Plaintiffs, Matthews-Daniel had been hired to assess the suitability of the

seabed and erroneously certified it as “virgin,” based on outdated information. Plaintiffs allege

that a prudent operator would have done a proper analysis of the seafloor and discovered that

previous operations had penetrated the seafloor, making it unstable. When the Usumacinta rig

was moved alongside the KAB-101 platform, the unstable seafloor shifted and caused the rig to

3  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 4 of 27 PageID #: 4645

settle and collapse onto the KAB-101 platform. This collision, in turn, caused the hydrocarbon

leak.

Plaintiffs further allege that Defendant Gulf Coast, a U.S. company, and Defendant

Carter, a U.S. resident, were responsible for moving the Usumacinta rig into location and

anchoring it to the seabed alongside the KAB-101 platform. Plaintiffs claim that Gulf Coast and

Carter did so without “variable loads”—i.e., adequate loads to maintain the stability of the rig—

in near hurricane-force winds. Plaintiffs contend that Gulf Coast and Carter should have paid

closer attention to the weather conditions and should have known that the Usumacinta’s stability

without a variable load was inadequate for serious weather conditions.

Finally, Plaintiffs assert that one or both of the subsurface safety valves on the KAB-101

platform were faulty, failed to cut off the leak, and forced the evacuation of the platform.

According to Plaintiffs, the valves were intended to stop the flow of oil and gas should anything

hit the well below or above the water, but the valves failed to seal the oil and gas leak. Plaintiffs

allege that the valves were designed, manufactured, and installed by Defendants Schlumberger

and/or Halliburton in the United States. Plaintiffs claim that Schlumberger’s witnesses on the

design and manufacture of its valve reside in Rosharon and Houston, Texas, and Plaintiffs

presume that Halliburton’s witnesses reside in Dallas, Texas.

Numerous investigations of the accident occurred in Mexico. The most important

investigation for purposes of the motion to dismiss was a root cause analysis done by Battelle

Memorial Institute (the “Battelle Report”), which was sponsored by PEMEX. The Battelle

Report concluded that numerous U.S. companies, including the Defendants in these cases, were

ultimately responsible for the accident. Most, if not all, of Plaintiffs’ allegations against

Defendants are based on the conclusions drawn in the Battelle Report.

4  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 5 of 27 PageID #: 4646

Plaintiffs’ original complaints in the consolidated cases asserted negligence, gross

negligence, products liability, and wrongful death claims against various defendants under

general federal or international maritime law or, in the alternative, under Texas law or the

relevant law of Mexico. The Court dismissed Plaintiffs’ state law claims with prejudice because

they were preempted by the Jones Act. In addition, the Court dismissed Plaintiffs’ federal

maritime claims without prejudice because Plaintiffs failed to alleged that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act. In their

amended complaints, Plaintiffs abandoned their federal maritime claims and alleged only state

law claims and claims under Mexican law. The Court then dismissed, again, Plaintiffs’ state law

claims as being preempted by the Jones Act. Accordingly, the only claims remaining are

Plaintiffs’ Mexican law claims for civil liability and moral damages.4

Defendants argue that Mexico is a more appropriate forum for the adjudication of these

claims because the cases arise out of the collision of a mobile drilling rig and oil platform in

Mexican territorial waters during the production of Mexican oil and gas resources. Additionally,

all of the plaintiffs are Mexican residents and they, or there decedents, were all employed by

Mexican companies. Defendants argue that because Plaintiffs make claims under Mexican law,

arising from events that occurred within the jurisdiction of the Mexican courts and involving

Mexican residents and companies, Mexico is the appropriate forum for adjudicating the claims.

Defendants also argue that the witnesses and documents regarding the accident and subsequent

investigation are all located in Mexico. Plaintiffs, however, argue that all of the remaining

 4 Plaintiffs’ claims are identical in every case except for the De La Cruz case, Case No. 9:09cv167. In that case, Plaintiffs’ amended complaint included claims under Texas state law, OSHA, DOSHA, Mexican law, and several international treaties. See De La Cruz Amended Complaint, ¶¶ 48-93 (Dkt. No. 200). In an Order dated March 7, 2011, the Court dismissed the De La Cruz plaintiffs’ state law claims, federal maritime law claims, and the plaintiffs’ claims under OSHA, DOSHA, and various international conventions and treaties (Dkt. No. 152). As a result, only the plaintiffs’ claims under Mexican law survived.

5  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 6 of 27 PageID #: 4647

Defendants are U.S. companies or citizens and that they made policy, safety, corporate,

manufacturing, supervision, and design decisions in the United States that directly led to the

events at issue in the action. Therefore, according to Plaintiffs, the documents and witnesses

regarding liability are located in the United States.

II. Analysis

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and

Koster v. American Lumbermens Mutual Casulty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067

(1947), the Supreme Court established the principle “that a court may resist imposition upon its

jurisdiction even when jurisdiction is authorized.” Gulf Oil, 330 U.S. at 507. Therefore, “[t]he

doctrine of forum non conveniens rests upon a court's inherent power to control the parties and

cases before it and to prevent its processes from becoming an instrument of abuse or injustice.”

In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1153-54 (5th Cir.1987)(en banc),

vacated by Pan Am. World Airways, Inc. V. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d

400 (1989), reinstated except as to damages by Air Crash Disaster v. Pan Am. World Airways,

Inc., 883 F.2d 17 (5th Cir.1989)(en banc). According to the Court, in deciding whether to

exercise or decline jurisdiction, “the ultimate inquiry is where trial will best serve the

convenience of the parties and the ends of justice.” Koster, 330 U.S. at 527. “The determination

of what is most convenient rests upon several private and public factors which the Court stated

should be considered and balanced by a court when presented with a motion to dismiss for forum

non conveniens.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1162. “A defendant

of course bears the burden of invoking the doctrine and moving to dismiss in favor of a foreign

forum.” Id. at 1164. “This burden of persuasion runs to all elements of the forum non

conveniens analysis,” including demonstrating that an “adequate and available forum exists as to

6  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 7 of 27 PageID #: 4648

all defendants if there are several.” Id. If the defendant meets this initial burden, “it must also

establish that the private and public interests weigh heavily on the side of trial in the foreign

forum.” Id. The Supreme Court has held that a moving defendant need not submit overly

detailed affidavits to carry its burden, but it “must provide enough information to enable the

district court to balance the parties’ interests.” Reyno, 454 U.S. at 258.

In Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981),

the Supreme Court reaffirmed that the principles enunciated in Gulf Oil and Koster are

appropriate for use in diversity cases. The decision of whether to grant or deny a motion to

dismiss for forum non conveniens is within the discretion of the court. In re Air Crash Disaster

Near New Orleans, 821 F.2d at 1165. The decision “should be an exercise in structured

discretion founded on a procedural framework guiding the district court's decisionmaking

process.” Id. The denial of a motion to dismiss for forum non conveniens may be reversed only

when there has been a clear abuse of discretion. Reyno, 454 U.S. at 255. The trial court's

decision “deserves substantial deference” when the court has considered all relevant factors and

where its balancing of the factors is reasonable. Id.

A. Available and Adequate Alternative Forum

Prior to balancing the private and public interest factors, a court must first determine

whether another adequate forum is available to hear the case “because the forum non conveniens

presupposes the existence of at least two forums in which all defendants are amenable to

process.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1164. An alternative forum

is available, for purposes of a forum non conveniens analysis, when the entire case and all parties

can come within the jurisdiction of that forum. Saqui v. Pride Central America, LLC, 595 F.3d

206, 211 (5th Cir. 2010).

7  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 8 of 27 PageID #: 4649

An alternative forum is adequate, for purposes of forum non conveniens analysis, when

the parties will not be deprived of all remedies or treated unfairly, even though they might not

enjoy the same benefits as they might receive in an American Court. Saqui, 595 F.3d at 212.

Additionally, the mere fact that the amount of damages would be more limited under Mexican as

opposed to American law, does not provide the basis for finding that Mexican courts are an

inadequate alternative forum. Id. The Supreme Court has made it clear that the Court may not

give substantial weight to the fact that trail in a foreign forum will result in a change in law

unfavorable to the plaintiff or the fact that the defendants may be motivated by a desire to obtain

a more favorable forum in bringing the motion to dismiss for forum non conveniens. Id. at 252-

52 and n. 19.

Because the Defendants have agreed to submit to the jurisdiction of the Mexican courts,

Plaintiffs concede that Mexico is an available and adequate forum for the adjudication of these

claims.5 See In re Ford Motor Co., 591 F.3d 406, 412 (5th Cir. 2009).

 5 Plaintiffs’ consolidated briefing in response to the motion to dismiss for forum non conveniens concedes that Mexico is an available and adequate forum for these cases. Plaintiffs also conceded that they were not challenging the adequacy or availability of the Mexican courts as an alternative forum during their oral argument at the hearing on the motion to dismiss. Counsel for plaintiffs in Case No. 9:09cv167 (the “De La Cruz Plaintiffs”) appeared at the hearing and made a passing reference to State Department advisories warning against travel to Mexico. Then, after the hearing, the De La Cruz Plaintiffs filed a motion seeking leave to take additional discovery and file post- argument supplemental briefing on the motion to dismiss for forum non conveniens (Dkt. No. 155 in Case No. 9:09cv167). In their motion, the De La Cruz Plaintiffs contested the adequacy of Mexico as an alternative forum for the first time. The Court denied the De La Cruz Plaintiffs’ motion for leave to file supplemental briefing on various grounds (Dkt. No. 157). However, even if the De La Cruz Plaintiffs had been allowed to belatedly contest the adequacy of Mexico as an alternative forum, the Fifth Circuit has made it abundantly clear that where the Defendants will submit to jurisdiction, Mexico is an available and adequate forum for the resolution of these types of disputes. The Fifth Circuit has repeatedly held that Mexico is an available and adequate forum for Mexican residents to pursue claims against American companies for injuries arising from accidents in Mexico. See, e.g., Saqui, 595 F.3d at 211-213; In re Ford Motor Co., 591 F.3d at 412-13; DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 804 (5th Cir. 2007). In In re Ford Motor Co., the Fifth Circuit noted that “[w]e have held in numerous cases that Mexico is an available forum for tort suits against a defendant that is willing to submit to jurisdiction there.” 591 F.3d at 412 (citing Gonzalex v. Chrysler Corp.. 301 F.3d 377, 380 n. 3 (5th Cir. 2002); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003); DTEX, 508 F.3d at 804). After referencing numerous Fifth Circuit opinions on the issue, the Court emphasized that:

8  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 9 of 27 PageID #: 4650

B. Private and Public Interest Factors

Plaintiffs have conceded that Mexico is an available and adequate forum for the

adjudication of these claims, and, therefore, the only issue in dispute is whether the private and

public interest factors weigh heavily in favor of dismissal to Mexico. In re Air Crash Disaster

Near New Orleans, 821 F.2d. at 1164. Although a plaintiff’s choice of forum is generally given

great deference, “a foreign plaintiff's selection of an American forum deserves less deference

than an American citizen's selection of his home forum.” In re Air Crash Disaster Near New

Orleans, 821 F.2d at 1164. “When the home forum has been chosen, it is reasonable to assume

that this choice is convenient. When the plaintiff is foreign, however, this assumption is much

less reasonable.” Reyno, 454 U.S. at 255-56. Plaintiffs are all Mexican citizens, and, therefore,

their choice to bring suit in this Court is entitled to less deference in balancing the private and

public interest factors.

1. Private Interest Factors

The private interest factors to be considered in the forum non conveniens analysis are: (1)

the relative ease of access to sources of proof; (2) the availability of compulsory process for

attendance of unwilling witnesses; (3) the costs of obtaining attendance of willing witnesses; (4)

the probability of view of the premises, if view would be appropriate to the action; and (5) all

 [t]hese many decisions create a nearly airtight presumption that Mexico is an available forum. We have held that if a defendant submits to jurisdiction, there is a presumption of forum availability . . . petitioners’ willingness to submit to jurisdiction in Mexico makes it an available forum for FNC purposes, based on the binding precedent of this court.

In re Ford Motor Co., 591 F.3d at 412. In another recent Fifth Circuit opinion, the Court rejected the argument that Mexico was an inadequate forum because (1) the amount of damages would be more limited under Mexican law, (2) there exists corruption in the Mexican courts, (3) the case would experience long delays in the Mexican court system, and (3) that, under Mexican law, it would be virtually impossible to subpoena out of country witnesses. Saqui, 595 F.3d at 212. In reaching this decision, the Fifth Circuit upheld the district court’s ruling that the plaintiff had not produced compelling evidence that corruption in the Mexican courts made Mexico an inadequate forum and that there would likely be fewer delays in a Mexican court because the accident took place in Mexican waters and involved Mexican citizens and corporations. Id. at 212-13.

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other practical problems that make trial of a case easy, expeditious, and inexpensive. Saqui, 595

F.3d at 213 (citing Gulf Oil Corp., 330 U.S at 508).

a. The Relative Ease of Access to Sources of Proof

The first private interest factor, the relative ease of access to sources of proof, favors

dismissal. These cases arise out of an accident that occurred on a drilling rig and platform in

Mexican territorial waters. Plaintiffs are all Mexican residents, and they, or their decedents,

were working on the platform as a result of their employment by Mexican companies during the

production of Mexican oil and gas resources. The physical and documentary evidence regarding

the drilling rig Usumancinta, the KAB-101 production platform, the relevant oil wells, and the

lifeboats, or mandarinas, that are at the center of this disaster are all located in Mexico. It would

be impossible to investigate and evaluate the cause or causes of the accident without access to

this evidence. In addition, the Defendants have shown that Plaintiffs’ employment, tax, and

medical records, PEMEX’s and Pemex Exploración y Productión’s records, policies, and other

documents, as well as the rescue workers’ records, policies, and other documents are all located

in Mexico. Not only are all of these documents located in Mexico, but they are the property of

third parties who could not be compelled to produce them in this forum. Even if they could

somehow be obtained, most if not all of these documents are in Spanish and translating them

would be burdensome, time-consuming, and costly in this forum.

Plaintiffs, however, argue that although the accident itself took place in Mexico and the

Plaintiffs are Mexican residents, these facts are secondary to the substantive liability issues.

Plaintiffs contend that these cases are really about the wrongful conduct of U.S. companies and

one U.S. resident, Glen Carter, whose acts and omission occurred in the United States. Plaintiffs

argue that the witnesses and evidence in Mexico go primarily to damages, and that the damage

10  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 11 of 27 PageID #: 4652

issues are secondary to the liability issues, the evidence for which is primarily in the United

States. Plaintiffs point out that all of the Defendants are located in the United States, along with

the evidence and witnesses concerning their liability.

For example, Plaintiff alleges that: (1) Matthews-Daniel surveyed the seafloor and made

decisions about the movement and placement of mobile rigs from its offices in Texas, where its

records are held; (2) Gulf Coast and Glen Carter moved the rig in the Bay of Campeche, but their

records and witnesses are in the United States; and (3) Schlumberger and Halliburton designed

the faulty subsurface safety valves in the United States. Plaintiffs argue that the essential

evidence related to Defendants’ liability is in the United States, including:

• Evidence relating to the research, development, design, manufacture, and installation of Schlumberger’s Camco valves; • Schlumberger’s testing records relating to its Camco valves; • Schlumberger’s records relating to the accident rate of its Camco valves; • Evidence of Gulf Coast’s analysis of Cold Front No. 4 and its decision to move the Usumacinta rig; • Gulf Coast’s policies and procedure regarding moving drilling rigs; • Gulf Coasts’ policies and procedure regarding monitoring weather conditions; • Gulf Coasts’ policies and procedures regarding safety; • Halliburton’s evidence relating to the research, development, design, manufacture, and installation of its subsurface valves; • Halliburton’s testing records relating to its subsurface valves; • Halliburton’s records relating to the accident rate of its subsurface valves; • Evidence gathered and discovered in connection with Battelle’s investigation of the accident; • Evidence relating to Matthews-Daniel’s decision to move the Usimatica rig alongside the KAB-101 platform; • Evidence of Glen Carter’s knowledge, expertise, and decision-making as the person on the scene of the move.

Ultimately, Plaintiffs argue that most of the documents in Mexico relate to damages while the

documents in the United States related to liability and that the volume of evidence needed to

prove damages will be less than the volume of documents needed to prove liability. Plaintiffs’

assertions, however, are not supported by the record. While it is certainly true that some liability

11  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 12 of 27 PageID #: 4653

evidence is in the Defendants’ possession in the United States, it is simply not true that these

documents constitute all or even the majority of the liability documents.

As previously discussed, many of the core liability documents relating to the rig,

platform, oil wells, and life boats are located in Mexico and in the possession of third parties.

This is the evidence necessary to demonstrate how the disaster unfolded, what decisions were

made before, during, and after the disaster, who made those decisions, and what possible causes

contributed to the accident. Plaintiffs cannot escape the fact that evidence related to the

decisions made by those on and in control of the Usumacinta rig and KAB-101 platform at the

time of the accident are central to the liability issues in this case. Plaintiffs’ argument that the

Court should give little weight to the damages documents located in Mexico because damages is

unlikely to be a hotly contested issue is also unpersuasive. Finally, Plaintiffs theory of

liability—and their corresponding assertion that most of the liability evidence is in the United

States—is based largely on the findings of the Battelle Report that liability for the disaster in the

Bay of Campeche rests not with PEMEX or Perforadora Central but with the Defendants. The

Battelle Report, however, was commissioned by PEMEX and was the result of an investigation

of witnesses, documents, and other evidence located largely in Mexico. If these cases were to

proceed in this Court, the Defendants would not have access to the evidence located in Mexico—

including PEMEX’s documents and the witnesses to the disaster—in order to challenge the

conclusions of the Battelle Report. Plaintiffs may not dictate the Defendants’ litigation strategy

by limiting their access to evidence and, thus, the issues and defenses available to Defendants.

Keeping the case would require the Court to essentially adopt Plaintiffs’ theory of liability while

hamstringing the Defendants’ ability to counter that theory.

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Despite Plaintiffs’ efforts to convince the Court that many of the important liability

documents and witnesses are in the United States, the reality of the situation is that the vast

majority of the evidence and witnesses regarding the accident itself are located in Mexico as well

as all of the documents regarding Plaintiffs’ injuries and damages. While it is true that some of

the evidence and witnesses are in the United States, the great balance of the evidence is in

Mexico and would be unavailable in this forum. The Court, however, recognizes that

Defendants have relevant witnesses and documentary evidence in the United States that might

not be readily available in Mexico. Accordingly, the Court ORDERS that the case will not be

dismissed for forum non conveniens unless and until each defendant enters a stipulation that it

will make its relevant witnesses and documents available in Mexico to the extent consistent with

The relative ease of access to evidence heavily favors Mexico as the appropriate forum

for the consolidated cases.

b. The Availability of Compulsory Process for Attendance of Unwilling Witnesses

The second private interest factor, the availability of compulsory process for the

attendance of unwilling witnesses, also weighs heavily in favor of dismissal. This Court cannot

compel attendance by any unwilling nonparty witness who is in Mexico. DTEX, LLC v. BBVA

Bancomer, S.A., 512 F.Supp.2d 1012, 1025 (S.D.TX. 2007), affirmed and opinion adopted as the

opinion of the Fifth Circuit, 508 F.3d 785 (5th Cir. 2007). Defendants argue that many third-

party witnesses are Mexican residents who will not be subject to the Court’s subpoena power.

These witnesses include:

• PEMEX, Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos Marinos, S.A. de C.V., Sercomsa S.A. de C.V., and other employees working on the Usumacinta rig, the KAB-101 platform, and Wells 101, 103, and 121;

13  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 14 of 27 PageID #: 4655

• PEMEX, Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos Marinos, S.A. de C.V., Sercomsa S.A. de C.V., and other employees familiar with the maintenance and operation of the Usumacinta rig, the KAB-101 platform, Wells 101, 103, and 121, and the two mandarinas; • Plaintiffs’ medical providers; and • The rescue workers.

These are the eye witnesses to the events leading up to the accident, the accident itself, and the

Plaintiffs’ injuries. As such, their testimony is crucial to the issues of liability and damages in

this case. Even if these witnesses were available, they would likely only be available by

deposition and would require translators, which would increase the cost of litigation. Obtaining

depositions of any unwilling witnesses located in Mexico would have to be obtained through

letters rogatory pursuant to the Hague Convention. “The procedure presents difficulties in

obtaining adequate deposition testimony, is expensive, and is time consuming.” Vasquez v.

Bridgestone/Firestone, Inc., 192 F. Supp. 2d 715, 725 (E.D. Tex. 2001), rev’d on other grounds,

325 F.3d 665 (5th Cir. 2003). “[T]o fix the place of trial at a point where litigants cannot compel

personal attendance and may be forced to try their cases on deposition is to create a condition not

satisfactory to court, jury or most litigants.” Perez & Compania (Cataluna), S.A. v. M/V Mexico

I, 826 F.2d 1449, 1453 (5th Cir. 1987) (citing Gulf Oil Corp., 330 U.S. at 511). This is because

“conducting a substantial portion of a trial on deposition testimony precludes the trier of fact

from its most important role; evaluating the credibility of the witnesses.” Torreblanca de

Aguilar v. Boeing Co., 806 F. Supp. 139, 144 (E.D. Tex. 1992).

However, Plaintiffs contend that neither Mexico nor the United States has absolute

subpoena power over all non-party witnesses. Plaintiffs list the following third party witnesses

as being available only in the U.S.:

• ABS Consulting, a subcontractor involved in the investigation and drafting of the Battelle Report (as to maritime aspects of offshore oil exploration and production) and its employees;

14  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 15 of 27 PageID #: 4656

• Sea Engineering Incorporated, a subcontractor involved in the investigation and drafting of the Battelle Report (as to soil-foundation issues) and its employees; • Bethlehem Steel Company, the developer and manufacturer of the Usumacinta rig, and its employees; • Houston Offshore Joint Venture, the former owner of Usumacinta, and its employees; • Wilkens Weather Technologies and Oceanweather, Inc., both of which performed hindcast estimations of the offshore sea conditions caused by Cold Front No. 4, and their employees; • Wittaker and Watercraft companies, the manufacturers of the lifeboats, and their employees; • Alexander/Ryan Marine & Safety Company, which evaluated the construction and repair of the lifeboats, and its employees; • Geoscience Earth & Marine Services, Inc., which evaluated likely scenarios for Usumacinta’s sliding and effects of prior footprints on the foundation behavior, and its employees;

Many of these third party witnesses, though, are investigators involved in the Battelle Report

who have no direct knowledge of the accident. In addition, much of the direct evidence they

relied on in their investigation appears to be in Mexico. Thus, even if they are unavailable to

testify at a trial in Mexico, much of the evidence they rely on in making their conclusions would

be available. Finally, while Plaintiffs state that these third party witnesses are located in the

United States, they do not indicate where in the United States. Accordingly, there is no evidence

that this Court would have subpoena power over them.

Plaintiffs also lists as potential unwilling third-party witnesses: (1) the component part

manufacturers for the products at issue; (2) independent contractors or other third parties in the

United States who were involved in the decision to move or the actual process of moving

Usumacinta alongside the KAB-101 platform; and (3) independent contractors or other third

parties in the United States who were involved in the training of the personnel that worked on

Usumacinta and the KAB-101 platform. However, Plaintiffs have provided nothing to

demonstrate or even suggest that there are any such manufacturers or independent contractors in

the United States.

15  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 16 of 27 PageID #: 4657

Finally, Plaintiffs argue that the witnesses listed by Defendants as being available only in

Mexico are mostly oilfield and rescue workers who know very little about the root causes of the

accident. Plaintiffs contend that the witnesses who participated in the decisions that resulted in

the accident are in the United States and that these witnesses are more important than the

witnesses in Mexico. However, the witnesses who participated in the decisions made by the

Defendants that, according to Plaintiffs, resulted in the accident appear to be primarily party

witnesses. Plaintiffs have not suggested that such party witnesses would be unavailable if this

case were to proceed in Mexico. See Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 343

(8th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 708, 79 L.Ed.2d 172 (1984) (holding that

the location of witnesses in the Cayman Islands did not weigh strongly in favor of dismissal

because many of the witnesses were employees of the defendant, which could obtain their

cooperation in traveling to testify). To ensure that the Defendants will make their employees

available for trial, the Court ORDERS that as a condition of dismissal, Defendants each sign a

stipulation that they will make any employee witness available for trial in Mexico to the extent

consistent with Mexican law. However, the oilfield workers, rescue workers, and accident

investigators located in Mexico are clearly necessary third party witnesses outside the subpoena

power of the United States who cannot be made available by a similar stipulation.

Neither the United States nor Mexico is a perfect forum for these cases as there are third

party witnesses who will likely be unavailable in each forum; however, the Court finds that the

majority of the key third party witnesses are located in Mexico. Accordingly, the inability to

compel the attendance of these third party witnesses weighs heavily in favor of dismissal.

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c. The Cost of Obtaining Attendance of Willing Witnesses

Because of the large number of witnesses located in both Mexico and the United States,

the cost of obtaining the attendance of willing witnesses will be significant regardless of whether

the case is tried in this Court or in Mexico. Accordingly, this factor is neutral.

d. The Probability of View of the Premises

The next private interest factor, the ability to view the premises, can only weigh in favor

of dismissal since the accident took place in Mexican territorial waters. Nonetheless, Plaintiffs

are correct that viewing the scene of the accident by any court in the United States or in Mexico

is unlikely because the accident took place 18 miles out to sea. Plaintiffs also persuasively argue

that viewing the scene of the accident is less important now because of the availability of

pictures and animation software that can recreate the accident scene. For these reasons, the

Court gives this factor little weight.

e. All Other Practical Problems

A court must consider practical factors, such as the ability to implead other entities, in its

forum non conveniens analysis. See Reyno, 454 U.S. at 276-78. The inability to implead

potential third-party defendants “clearly support[s]” dismissal of the case in favor of trial in a

foreign court were all claims can be resolved in a single action. Id. Plaintiffs contend that they

would be unable to implead any unwilling American third party in a Mexican court. Plaintiffs,

however, do not suggest that there are, in fact, any American third parties they wish to implead.

Similarly, Defendants argue that their inability to pursue claims for contribution against Mexican

third parties who are not subject to the jurisdiction of the Court in this action—i.e., PEMEX,

Pemex Exploración y Productión, Perforadora Central, Central de Desarrollos Marinos, S.A. de

C.V., Sercomsa S.A. de C.V—weighs in favor of dismissing the case because judicial economy

17  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 18 of 27 PageID #: 4659

favors resolution of all claims in one trial. On the other hand, Plaintiffs contend that Defendants

have not shown that they would even be able to implead PEMEX or the other Mexican entities in

Mexico or that PEMEX would be subject to liability in Mexico. At the hearing, the Court asked

counsel for Defendants whether PEMEX would be subject to liability in Mexico. Defendants

repeatedly stated that Mexican courts have exclusive jurisdiction over cases involving PEMEX,

but could not answer the Court’s question regarding whether PEMEX would be subject to actual

liability in Mexico. As a result, the parties’ supplemental briefing focused on this issue.

Defendants’ supplemental briefing pointed to statements by their Mexican law experts and

asserted that PEMEX could be impleaded and would be subject to liability if the consolidated

cases were dismissed and brought in Mexico. Plaintiffs, however, argue in their supplemental

brief that the two year statute of limitations has run on any claims against PEMEX or the other

Mexican entities. Thus, Plaintiffs argue that Defendants would not be able to implead PEMEX

or any other Mexican company even if the case were to proceed in Mexico.

In his original expert declaration, filed before the alleged expiration of limitations while

this case was still pending before Judge Clark, Defendants’ Mexican law expert, Mr. Claus Von

Wobeser (“Mr. Von Wobeser”) stated that the statute of limitations for negligence claims was

two years from the date on which the breach occurred and that the breach in this case occurred

on or about October 23, 2007. Neither party has offered evidence disputing the two year statute

of limitations or the date on which limitations began to run, nor is there any evidence as to

whether the statute of limitations would be tolled under Mexican law. Thus, it appears that the

statute of limitations for any negligence claim against PEMEX or any other Mexican entity may

have expired on October 23, 2009.6 Even if the statute of limitations has run, it is unclear

 6 The Court notes that the declaration of Mr. Von Wobeser attached to Defendants’ consolidated motion to dismiss for forum non conveniens omitted this information, as did the supplemental affidavit of Mr. Von Wobeser attached

18  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 19 of 27 PageID #: 4660

whether, under Mexican law, the statue of limitations for negligence claims would apply to any

contribution claims Defendants might have against PEMEX or other Mexican entities.7 What is

clear, however, is that PEMEX cannot be impleaded if the cases proceed in this Court, and this

suggests that this factor leans slightly in favor of transfer. Nonetheless, because of the

uncertainty that any impleader will be available or necessary in either Mexico or this district, the

Court gives this factor scant weight.

f. The Private Interest Factors Weigh in Favor of Dismissal

The Court finds that the private interest factors alone require dismissal of this case for

forum non conveniens. In a case strikingly similar to this action, The Fifth Circuit held that the

private interest factors weighed in favor of granting a motion to dismiss on forum non

conveniens grounds. Saqui involved the death of a Mexican citizen while working on a mobile

drilling rig in Mexican territorial waters. Saqui, 595 F.3d 206. The rig was owned by an

American company and leased to PEMEX, and PEMEX controlled the well operations and

provided the drilling crew to manage and operate the rig. Id. at 208. In upholding the district

court’s decision to dismiss the case for forum non conveniens, the Fifth Circuit noted that:

(1) the accident occurred off the coast of Mexico; (2) the injured crew members and their surviving families . . . are citizens of and reside in Mexico; (3) [the deceased] died while working aboard a [rig owned by the defendant, American company,] that was leased to, and under the control of, Pemex, the national oil corporation of Mexico; (4) the maintenance crew . . . were employees of . . . a Mexican company with its principal place of business in Mexico; (5) [the American defendant] did not control the operations or have any employees aboard the vessel; (6) the key physical evidence and most of the witnesses to the accident were located in Mexico; and (7) the Mexican National Government investigated

 to Schlumberger’s post-hearing supplemental memorandum. Defendants also failed to mention the expiration of the statute of limitations to the Court in response to the Court’s direct questioning at the hearing as to whether PEMEX could be impleaded and whether it would be subject to liability in Mexico. 7 For example, under Texas law, a claim for contribution does not arise until the underlying liability is determined. See Arnold v. Garlock Inc., 288 F.3d 234, 237 (5th Cir. 2002) (“The essential prerequisites for a contribution claim are a judgment finding the party seeking contribution to be a joint tortfeasor and the payment by such party of a disproportionate share of the common liability”) (citation omitted).

19  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 20 of 27 PageID #: 4661

the accident, created documents, and conducted interviews and site inspections in Mexico.

Id. at 213.

One important difference between Saqui and the present case is that the drilling rig at

issue in Saqui was manufactured by the American defendant in Mexico. In this case, however,

the allegedly faulty valves on the Usumacinta rig were developed, manufactured, and installed

by two of the American defendants—Schlumberger and Halliburton—in the United States.

Nevertheless, this fact is not enough to overcome the clear weight of the evidence that is located

in Mexico. In Reyno, the Supreme Court upheld the district court’s determination that fewer

evidentiary problems would be posed in the trial of American plane manufactures in Scotland for

liability arising from a plane crash in Scotland. Reyno, 454 U.S. at 257. The Court noted that a

large proportion of the relevant evidence was in Scotland, despite the fact that documents

concerning the design, manufacture, and testing of the propeller and plane were located in the

United States. Id.

In the present cases, the key evidence and witnesses necessary to effectively investigate

and try Plaintiffs’ claims are located primarily in Mexico and would likely be unavailable if trial

were to proceed in this Court. Accordingly, the private interest factors require dismissal in favor

of trial in a Mexican court.

2. Public Interest Factors

Because the Court finds that the private interest factors require dismissal, it need not

reach the public interest factors. See In re Air Crash Disaster Near New Orleans, 821 F.2d at

1165 (“If the district court finds that the private interests do not weigh in favor of the dismissal,

it must then consider the public interest factors”). However, the Court holds that the public

interest factors also necessitate transfer and will briefly address them as well. The public interest

20  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 21 of 27 PageID #: 4662

factors include (1) the administrative difficulties flowing from court congestion; (2) the local

interest in having localized controversies resolved at home; (3) the interest in having the trial of a

diversity case in a forum that is familiar with the law that must govern the action; (4) the

avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and (5)

the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 1162-63.

a. Administrative Difficulties

The first public interest factor, administrative difficulties, weighs only slightly in favor of

dismissal. Defendants claim that the administrative difficulties of obtaining evidence from

Mexico and applying Mexican law weigh in favor of dismissal. On the other hand, Plaintiffs

assert that administrative considerations weigh in favor of trying these cases in this Court

because, according to Plaintiffs’ Mexican law expert, trial in Mexico would likely take a decade.

The Court finds both arguments compelling. However, given the difficulties in obtaining key

evidence and witnesses from Mexico and the necessity of applying Mexican law in these cases,

the Court finds that the administrative difficulties weigh slightly in favor of dismissal despite the

potential delay in resolution of these cases that may result from dismissal. See DTEX, 512 F.

Supp. 2d at 1027 (holding that administrative difficulties such as obtaining evidence from

Mexico and applying Mexican law weigh in favor of dismissal for forum non conveniens).

b. Local Interest

The next public interest factor, the interest in resolving local controversies locally,

supports dismissal in favor of a Mexican court. The Supreme Court has held that a foreign

country has a strong interest in the litigation when the accident giving rise to the action occurred

within its borders and where the victims are its citizens because there is a “local interest in

having localized controversies decided at home.” Reyno, 545 U.S. at 260. Plaintiffs are all

21  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 22 of 27 PageID #: 4663

Mexican residents and they, or their decedents, were working on the platform as a result of their

employment by either the Mexico’s state-owned oil company, PEMEX, or various Mexican

companies working in cooperation with PEMEX during the production of Mexican oil and gas

resources. In addition, numerous investigations of the accident occurred in Mexico at the behest

of the Mexican government. For example, multiple Mexican government agencies investigated

and imposed monetary penalties on Mexican companies as a result of the accident, including the

Mexican Environmental Protection Agency for environmental violations and the Mexican

Merchant Marine Department for safety violations. The Mexican Attorney General also

investigated the incident for possible criminal wrongdoing. All of this makes it abundantly clear

that Mexico has a much stronger interest in these cases than the United States.

Plaintiffs argue that the United States and its citizens have an interest in this lawsuit

because the defendants are Texas companies and residents and because the decisions—and in

some cases the manufacturing and installation of allegedly faulty products—resulting in the

accident were made in Texas. In short, Plaintiffs argue that Texas has a keen interest in the

activities of companies doing business within its borders. Plaintiffs’ argument, however, is not

supported by the case law. In Reyno, the Supreme Court upheld the dismissal for forum non

conveniens of a wrongful death action stemming from an airplane crash in Scotland brought by

Scottish citizens against the American companies that manufactured the plane and propeller.

Reyno, 454 U.S. at 260-61. In doing so, the Court rejected the plaintiffs’ argument that

American citizens had a strong interest in ensuring that American manufacturers are deterred

from producing defective products and that additional deterrence might be obtained if the

American companies were tried in the United States. Id. at 260-61. “The American interest in

22  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 23 of 27 PageID #: 4664

this accident is simply not sufficient to justify the enormous commitment of judicial time and

resources that would inevitably be required if the case were to be tried here.” Id. at 261.

Mexico’s strong local interest in resolving these cases weighs heavily in favor of

dismissal of these cases for forum non conveniens.

c. The Application of Mexican Law

The third and fourth public interest factors—the interest in having the trial of a diversity

case in a forum that is familiar with the law that must govern the action and the avoidance of

unnecessary problems in conflicts of law, or in the application of foreign law—counsel in favor

of dismissal because the only remaining claims in all seven of these cases are claims under

Mexican law. The need to apply foreign law points towards dismissal. Reyno, 454 U.S. at 260.

The Court is not persuaded by the Plaintiffs’ argument that the applicability of Mexican law is

immaterial. In deciding Plaintiffs’ Mexican law claims, the Court would require translators to

translate the Mexican law as well as Mexican legal experts to explain the law. Accordingly, this

factor weighs heavily in favor of dismissal.

d. The Burden of Jury Duty

The final public interest factor, the interest in avoiding an unfair burden on citizens in an

unrelated forum with jury duty, also weighs in favor of dismissal. As previously noted, Mexico

has a far greater interest in this case than Texas. In addition, this case has almost no connection

with the Eastern District of Texas. The only connection with this district is the fact one

defendant, Gulf Coast, has an office in Lufkin, Texas. Jury duty should not be imposed on the

citizens of the Eastern District of Texas in a case that is so slightly connected with the United

States, much less this district. See In re Bridgestone/Firestone, 420 F.3d at 705 (“The citizens of

the Western District of Texas have no connection to the Mañez-Reyes accident. The family does

23  Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 24 of 27 PageID #: 4665

not reside there, the accident did not occur there, and the tires at issue were neither designed nor

manufactured there.”).

e. The Public Interest Factors Favor Transfer

Four of the five public interest factors—local interest, trial of a diversity case in a forum

familiar with the law, avoidance of unnecessary problems in conflict of laws or in application of

foreign law, and the burden of jury duty—weigh heavily in favor of dismissal for forum non

conveniens and one factor—administrative difficulties—weighs slightly in favor of dismissal.

Accordingly, the public interest factors, like the private interest factors, dictate dismissal of all

seven cases in favor of trial in a Mexican court.

C. Jurisdictional Stipulations and Return Jurisdiction Clause

According to the Fifth Circuit, if the court determines that the above considerations favor

trial in a foreign forum, “it must finally ensure that a plaintiff can reinstate his suit in the

alternative forum without undue inconvenience or prejudice and that if a defendant obstructs

such reinstatement in the alternative forum that the plaintiff may return to the American forum.”

In re Air Crash Disaster Near New Orleans, 821 F.2d at 1166; see also In re Ford Motor Co.,

591 F.3d at 414 (“There is no guarantee that Mexico will remain an available forum . . . . A

return jurisdiction clause remedies this concern by permitting parties to return to the dismissing

court should the lawsuit become impossible in the foreign forum”) (internal quotations and

citation omitted). The dismissal of the seven consolidated cases for forum non conveniens is,

therefore, subject to the following return jurisdiction clause: should the courts of Mexico refuse

to accept jurisdiction for reasons other than Plaintiffs’ refusal to pursue an action or to comply

with the procedural requirements of Mexican courts, this Court may reassert jurisdiction upon

timely notification of the same.

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In addition to the return jurisdiction clause, the dismissal of this action is conditioned on

Defendants making the following stipulations:

1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican

federal or state court, waiving any jurisdictional defenses they might normally possess.

2) Defendants agree to waive any statute of limitations defense that they did not possess as

of the date each of the seven cases was originally filed.

3) Defendants agree to submit to discovery in the Mexican forum in accordance with the

procedural rules of the Mexican court.

4) Defendants agree that they will make all relevant witnesses and documents available in

Mexico to the extent consistent with Mexican law.

5) Defendants further agree that they will make any employee witness available for trial in

III. Plaintiffs’ Request for Additional Discovery

In their response to Defendants’ consolidated motion, Plaintiffs request leave to take

additional discovery related to the forum non conveniens issue. Plaintiffs admit that Judge Clark

allowed them to conduct discovery on the forum non conveniens issue in the Dominguez case

(Case No. 9:08cv200). However, Plaintiffs argue that the discovery was too narrow and request

that each defendant be required to produce a 30(b)(6) witness on the “factual and legal issues

raised in this motion” as well as respond to written discovery with regard to “the factual and

legal issues raised in this motion. The Court does not believe that additional discovery is needed

in order to rule on the motion to dismiss. The parties have already provided extensive evidence

on the location of the documents and witnesses in this case as well as evidence relevant to the

other private and public interest factors in the forum non conveniens analysis. Accordingly,

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Plaintiffs’ request for additional discovery related to Defendants’ motion to dismiss for forum

non conveniens is DENIED.

IV. Conclusion

For the reasons discussed above, the Court CONDITIONALLY GRANTS Defendants’

Consolidated Motion to Dismiss for Forum Non Conveniens (Dkt. No. 225 in Case No.

9:08cv200). The Court FURTHER ORDERS that, subject to a return jurisdiction clause and the

conditions laid out in this order, the following seven cases be dismissed for forum non

conveniens: Dominguez v. Gulf Coast Marine & Assoc., Inc., et al, Case No. 9:08cv200;

Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv150; Friaz v. Gulf Coast

Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf Coast Marine & Assoc., Inc., et

al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv164; De La

Cruz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv167.

The dismissal of each case from the Court’s docket shall become effective once the

Defendants have tendered a written statement assenting to be bound by the following conditions:

1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican

federal or state court, waiving any jurisdictional defenses they might normally possess.

2) Defendants agree to waive any statute of limitations defense that they did not possess as

3) Defendants agree to submit to discovery in the Mexican forum in accordance with the

4) Defendants agree that they will make all relevant witnesses and documents available in

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5) Defendants further agree that they will make any employee witness available for trial in

Should any defendant fail to do so by May 2, 2011, Defendants’ Consolidated Motion for

Dismissal for Forum Non Conveniens will be considered waived, and all seven cases will

proceed to trial in this Court.

Should the courts of Mexico refuse to accept jurisdiction of any of these cases for reasons

other than Plaintiffs’ refusal to pursue an action or to comply with the procedural requirements

of Mexican courts, this Court may reassert jurisdiction upon timely notification of the same.

A copy of this order will be filed in each of the following seven consolidated cases:

Dominguez v. Gulf Coast Marine & Assoc., Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf

Coast Marine & Assoc., Inc., et al., Case No. 9:09cv150; Friaz v. Gulf Coast Marine & Assoc.,

Inc., et al., Case No. 9:09cv162; Perez v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv156; Jimenez Govea v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv170;

Gordillo v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv164; De La Cruz v. Gulf

Coast Marine & Assoc., Inc., et al., Case No. 9:09cv167.

IT IS SO ORDERED.

SIGNED this 20th day of April, 2011.

__________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE

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EXHIBIT "B"

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

MARIA SANTOS LOPEZ DOMINGUEZ, § et al., § § Plaintiffs, § § versus § CIVIL ACTION NO. 9:08-CV-200 § GULF COAST MARINE & ASSOCIATES, § INC., et al., § § Defendants. §

MEMORANDUM AND ORDER

Pending before the court is Plaintiffs’ Motion to Reinstate Case (#261), wherein Plaintiffs

seek to reopen this action following a dismissal under the doctrine of forum non conveniens.

Having reviewed the pending motion, the submissions of the parties, the pleadings, and the

applicable law, the court is of the opinion that the motion should be denied.

I. Background

This case arises from a fatal maritime accident off the coast of Mexico. On October 23,

2007, a powerful storm blew across the Bay of Campeche, where the mobile drilling rig

USUMACINTA was positioned near the oil production platform KAB-101, approximately ten

miles north of the Mexican coast. As a result of hurricane force winds, the USUMACINTA

allided with the KAB-101, damaging the platform and causing crude oil and natural gas to leak

from one of its wells. The workers onboard were forced to evacuate the platform, which

subsequently exploded. Although the workers boarded two lifeboats, the boats capsized in the

rough waters. Twenty-two offshore workers (including two rescuers) perished and numerous

others were injured. Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 2 of 15 PageID #: 6035

Plaintiffs, who are residents of Mexico, are survivors and relatives of the workers killed

in the accident as well as representatives of their estates. Those injured or killed in the accident

worked for Mexico’s state-owned oil company Petróleos Mexicanos (“Pemex”) or Perforadora

Central (“Perforadora”), a Mexican company that assists Pemex in oil exploration. At the time

of the incident, Pemex owned the KAB-101 platform and was leasing the USUMACINTA rig from

Perforadora.

In October 2008, Plaintiffs filed seven different cases in the Eastern District of Texas,

Lufkin Division, asserting negligence, gross negligence, products liability, and wrongful death

claims against four American companies, Defendants Gulf Coast Marine & Associates, Inc. (“Gulf

Coast”), Schlumberger Technology Corporation, Halliburton Energy Services, Inc., and

Matthews-Daniel Company, and Defendant Glen Carter, allegedly an American employee of Gulf

Coast (collectively, “Defendants”).1 The court consolidated the cases on September 15, 2010, for

the purpose of briefing and deciding the forum non conveniens issue common to each case. See

Docket No. 196.

Acting on a motion to dismiss filed by Defendants, former United States District Judge T.

John Ward conditionally dismissed the case pursuant to the doctrine of forum non conveniens on

April 20, 2011. As a condition of dismissal, the court required Defendants to tender a written

statement in which they agreed to “appear and submit themselves to the jurisdiction of a Mexican

federal or state court, waiving any jurisdictional defenses they might normally possess.” See

Docket No. 257 (Memorandum Opinion, Apr. 20, 2011). On April 29, 2011, Defendants filed

1 Pemex and Perforadora are not defendants in this suit.

2 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 3 of 15 PageID #: 6036

the required stipulations.2 See Docket No. 258. Accordingly, on May 4, 2011, the court

dismissed the case based on forum non conveniens, subject to the following return-jurisdiction

clause:

Should the courts of Mexico refuse to accept jurisdiction of this case for reasons other than Plaintiffs’ refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this Court may reassert jurisdiction upon timely notification of the same.

See Order, Docket No. 259. Plaintiffs did not appeal the May 4, 2011, order.

Pursuant to the court’s order, between February and May 2013, eleven Plaintiffs filed

separate lawsuits in the State of Campeche.3 Shortly thereafter, however, the Mexican courts

dismissed the cases. Each court stated that it could not assert jurisdiction over Defendants because

of the “Interamerican Convention concerning the Jurisdiction on the international sphere for the

extraterritorial efficacy of foreign verdicts” and “by reason that the territory concerned to which

2 The court’s subsequent order dismissing the case pursuant to forum non conveniens acknowledges that Defendants filed the required following stipulations:

1) Defendants agree to appear and submit themselves to the jurisdiction of a Mexican federal or state court, waiving any jurisdictional defenses they might normally possess. 2) Defendants agree to waive any statute of limitations defense that they did not possess as of the date each of the seven cases was originally filed. 3) Defendants agree to submit to discovery in the Mexican forum in accordance with the procedural rules of the Mexican court. 4) Defendants agree that they will make all relevant witnesses and documents available in Mexico to the extent consistent with Mexican law. 5) Defendants further agree that they will make any employee witness available for trial in Mexico to the extent consistent with Mexican law. 3 The eleven Plaintiffs are: (1) Aldo Antonio Lopez Lorenzo; (2) Antonio Montero Hernandez; (3) Feliciana Perez Lopez de Alcudia; (4) Virginia Castellanos Casanova de Porter; (5) Maria Candelaria Dzul Xool; (6) Julissa Bovio Chagoya de Solis; (7) Maria Santos Lopez Dominguez; (8) Gabriel Gonzales Toral; (9) Juan Antonio Palafox Navarrete; (10) Oscar Romero Ortega; and (11) Fernando Augusto Cervera Ramirez.

3 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 4 of 15 PageID #: 6037

the residence of the defendants are not found in . . . this federal entity to avail itself of the

acknowledgment of the lawsuit of origin.”4

Rather than appeal the Mexican dismissals to a higher court, on October 18, 2013,

Plaintiffs filed a motion to reopen or reinstate the instant case pursuant to the return-jurisdiction

clause above. Plaintiffs contend that they complied with the court’s order by filing suit in the State

of Campeche and complying with all of Mexico’s relevant procedural rules. Plaintiffs also

maintain that they pursued the Mexican cases in good faith without attempting to defeat

jurisdiction in Mexico.

Defendants dispute Plaintiff assertions, arguing that: (1) Plaintiffs did not provide

Defendants notice of the Mexican proceedings; (2) Plaintiffs failed to offer any argument or

evidence that they informed the Mexican courts of Defendants’ consent to jurisdiction in Mexico;

(3) Plaintiffs did not appeal the Mexican dismissals; and (4) Plaintiffs’ motion is untimely.

Defendants also stress that Plaintiffs are improperly attempting to relitigate the adequacy and

availability of Mexico as an alternative forum.

A. FED. R. CIV. P. 60(b)

Rule 60(b) of the Federal Rules of Civil Procedure provides that a court may relieve a

party or its legal representative from a final judgment, order, or proceeding for the following

reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

4 In most of the cases, the Mexican courts dismissed the lawsuits one or two days after the cases were filed.

4 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 5 of 15 PageID #: 6038

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

FED. R. CIV. P. 60(b).

A motion brought under Rule 60(b) must be made within a “reasonable time—and for

reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date

of the proceeding.” FED. R. CIV. P. 60(c). “The party seeking relief from a judgment or order

bears the burden of demonstrating that the prerequisites for such relief are satisfied.” Turner v.

Chase, No. 08-3884, 2010 WL 2545277, at *2 (E.D. La. June 16, 2010) (citing Motorola Credit

Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009)); see United States v. City of New Orleans, 947

F. Supp. 2d 601, 615 (E.D. La.), aff’d, 731 F.3d 434 (5th Cir. 2013). “A decision with respect

to a motion to reconsider pursuant to Rule 60(b) is left to the ‘sound discretion of the district court

and will only be reversed if there is an abuse of that discretion.’” Laborde v. Lunceford, No.

6:10-CV-30, 2010 WL 3946508, at *3 (E.D. Tex. Oct. 8, 2010) (quoting Steverson v.

GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007)); see Gov’t Fin. Servs. One Ltd. P’ship

v. Peyton Place, Inc., 62 F.3d 767, 770 (5th Cir. 1995) (“[T]o overturn the district court’s denial

of [a] Rule 60(b) motion, it is not enough that a grant of the motion might have been permissible

5 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 6 of 15 PageID #: 6039

or warranted; rather, the decision to deny the motion must have been sufficiently unwarranted as

to amount to an abuse of discretion.”) (internal quotations omitted).

Plaintiffs filed the instant motion, asserting that “the [c]ourt may reinstate this case

pursuant to FED. R. CIV. P. 60(b)(6).” Nonetheless, in their reply brief, Plaintiffs argue that Rule

60(b)(6) does not apply to cases like this one, where Plaintiffs seek reinstatement pursuant to a

return-jurisdiction clause following a dismissal for forum non conveniens. Plaintiffs, however,

cite no case, binding or persuasive, in which a court has expressly concluded that Rule 60(b) does

not apply under circumstances similar to those presented here. Further, it does not appear that

the United States Court of Appeals for the Fifth Circuit has spoken on the issue. In contrast,

several courts have applied Rule 60(b)(6) in considering the propriety of reopening a case after

a dismissal for forum non conveniens. See Aldana v. Fresh Del Monte Produce, Inc., No. 01-

3399-CIV, 2012 WL 5364241, at *4-5 (S.D. Fla. Oct. 30, 2012), aff’d, 741 F.3d 1349 (11th Cir.

2014); see also Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1294 (11th Cir. 2013); Mendes

Junior Int’l Co. v. Banco Do Brasil S.A., No. 09-3478-CV, 2010 WL 3818094, at *1-2 (2d Cir.

Oct. 1, 2010).

Under Rule 60(b)(6), a district court may relieve a party from an order or proceeding for

any reason that justifies relief, other than those also enumerated in Rule 60(b). See Rocha v.

Thaler, 619 F.3d 387, 399-400 (5th Cir. 2010), cert. denied, 132 S. Ct. 397 (2011). “Rule

60(b)(6) is a grand reservoir of equitable power to do justice in a particular case when relief is not

warranted by the preceding clauses, [and] [the Fifth Circuit] [has] also narrowly circumscribed

its availability, holding that Rule 60(b)(6) relief will be granted only if extraordinary

circumstances are present.” Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir. 2010), cert. denied,

6 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 7 of 15 PageID #: 6040

131 S. Ct. 2292 (2011) (quoting Batts v. Tow-Motor Forklife Co., 66 F.3d 743, 747 (5th Cir.

1995)); In re Chinese Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 593 n.19 (5th Cir.

2014). “‘[T]he rule seeks to strike a delicate balance between two countervailing impulses: the

desire to preserve the finality of judgments and the “incessant command of the court’s conscience

that justice be done in light of all the facts.”’” Borne v. River Parishes Hosp., L.L.C., No. 12-

30749, 2013 WL 5977133, at *2 (5th Cir. Apr. 22, 2013) (quoting Seven Elves, Inc. v. Eskenazi,

635 F.2d 396, 401 (5th Cir. 1981) (quoting Bankers Mortg. Co. v. United States, 423 F.2d 73,

77 (5th Cir.), cert. denied, 399 U.S. 927 (1970))). Rule 60(b)(6) is a “catch-all provision, meant

to encompass circumstances not covered by Rule 60(b)’s other enumerated provisions.” See Hess

v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002); accord Margoles v. Johns, 798 F.2d 1069, 1073

n.6 (7th Cir. 1986) (“Relief under Rule 60(b)(6) is appropriate only if the grounds asserted for

relief do not fit under any of the other subsections of Rule 60(b).”); Hindi v. Toyota Motor Corp.,

No. 2:05-CV-11, 2011 WL 865488, at *4 (E.D. Tex. Mar. 10, 2011) (“Plaintiff cannot

circumvent the time limitations of Rule 60(c)(1) by asserting a Rule 60(b)(6) motion with

allegations that are more appropriate to support a Rule 60(b)(3) motion [which pertain to fraud,

misrepresentation, or misconduct by the opposing party].”).

B. Litigation in the Foreign Forum

Without regard to whether Rule 60(b)(6)’s “exceptional circumstances” standard applies

here, “a plaintiff whose case is dismissed for forum non conveniens must litigate in the foreign

forum in good faith.” In re Air Crash Over the Mid-Atl., 792 F. Supp. 2d 1090, 1095 (N.D. Cal.

June 15, 2011); see Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir.

2011) (“If the district court determines that the primary reason the Mexican courts declined to take

7 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 8 of 15 PageID #: 6041

jurisdiction of Plaintiffs’ case was Plaintiffs’ actions or inactions in the case, it retains discretion

to again order dismissal, with appropriate conditions, if any.”); MBI Grp., Inc. v. Credit Foncier

Du Cameroun, 616 F.3d 568, 573-74 (D.C. Cir. 2010) (holding that plaintiffs were not entitled

to litigate in United States because they “consistently worked to undermine their suit in

Cameroon”); In re Bridgestone/Firestone, Inc., 420 F.3d 702, 706-07 (7th Cir. 2005) (remanding

action to district court to assess whether the plaintiffs’ efforts to litigate in Mexico were taken in

good faith); Huang v. Advanced Battery Tech., Inc., No. 09-8297, 2011 WL 813600, at *2

(S.D.N.Y. Mar. 8, 2011) (denying request to reinstate lawsuit dismissed on forum non conveniens

grounds because “it appears that [plaintiff] has not pursued his claims in China with any real

diligence”). Indeed, “[a] conditional forum non conveniens dismissal protects a plaintiff against

the possibility that the foreign forum will not hear his case. It does not give the plaintiff license

to deliberately prevent his suit in the foreign court from going forward in order to render an

alternative forum defective.” MBI Grp., Inc., 616 F.3d at 572; see Vasquez v.

Bridgestone/Firestone, Inc., 325 F.3d 665, 675 (5th Cir. 2003) (“A return jurisdiction clause

remedies [the concern that the foreign forum will remain available] by permitting parties to return

to the dismissing court should the lawsuit become impossible in the foreign forum.”).

In this case, it is unnecessary to determine whether Rule 60(b)(6) applies, as Plaintiffs have

not satisfied the terms of the return-jurisdiction provision imposed by Judge Ward. As set forth

above, the return-jurisdiction clause provided:

Should the courts of Mexico refuse to accept jurisdiction of this case for reasons other than Plaintiffs’ refusal to pursue an action or to comply with the procedural requirements of Mexican courts, this Court may reassert jurisdiction upon timely notification of the same.

8 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 9 of 15 PageID #: 6042

Here, Plaintiffs filed some, but not all, of the cases dismissed by Judge Ward in Mexico. Because

counsel made no attempt to litigate those cases in Mexico in compliance with the court’s

Memorandum and Order, there is no basis upon which to reopen them here.

With regard to the cases filed in Mexico, Defendants argue that reinstatement is not

warranted because Plaintiffs failed to inform the Mexican courts of Defendants’ consent to

jurisdiction and to comply with the procedural requirements of the Mexican Courts. Essentially,

Defendants argue that Plaintiffs did not prosecute the cases in good faith. The court agrees.

First, as explained by Defendants’ Mexican legal expert, Claus Werner von Wobeser

Hoepfner (“Wobeser Hoepfner”), a Mexican court should defer to the parties’ consent when

determining whether to exercise jurisdiction over Defendants. See Docket No. 263-1 (Wobeser

Hoepfner Declaration, Nov. 1, 2013); Docket No. 277-1 (Wobeser Hoepfner Declaration, Jan.

10, 2014); see also City of New Orleans Emps. Ret. Sys. v. Hayward, 508 F. App’x 293, 296 (5th

Cir. 2013) (“A defendant’s submission to the jurisdiction of a foreign forum sufficiently satisfies

the availability requirement.”); Ibarra v. Orica U.S.A. Inc., 493 F. App’x 489, 493 (5th Cir.

2012) (“Mexico is presumed to be an available forum for tort suits against a defendant willing to

submit to jurisdiction there.”) (citing In re Ford Motor Co., 591 F.3d 406, 412-13 (5th Cir. 2009)

(stating that “many decisions create a nearly airtight presumption that Mexico is an available

forum”)).

Article 104, section II, of the Mexican Constitution provides that Mexico’s federal courts

will have jurisdiction over “all controversies of a civil or criminal nature regarding the

implementation or application of federal laws or of international treaties entered into by the

Mexican State” and “controversies involving maritime law.” Jorge A. Vargas, Mexican Law for

9 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 10 of 15 PageID #: 6043

the American Lawyer, 30-31 (2009); see Docket No 277-1 (Wobeser Hoepfner Declaration). In

addition, article 4 of the Mexican Navigation and Maritime Trade Act provides that federal

jurisdiction encompasses “in general all the acts and facts that take place” in the Mexican internal

marine waters and the Mexican marine zones. LEY DE NAVEGACION Y COMERCI MARITIMOS, art.

4. Plaintiffs’ Mexican lawyer, Hector Tijerina Aguilar (“Tijerina Aguilar”), appears to agree with

the proposition that the Mexican courts have subject matter jurisdiction, as he recognized in his

declaration that a Mexican court “[a]nalyzes its competence by subject, that is to say in this

concrete case the federal judge is competent by subject because it relates to a petroleum platform

accident and it occurred in high seas.” See Docket No. 272-1 (Tijerina Aguilar Letter, Nov. 13,

2013).

Article 23 of Mexico’s Federal Code of Civil Procedure (“FCCP”) provides that territorial

jurisdiction can be extended through the mutual consent of the parties. It states:

The territorial jurisdiction is extendable by the parties’ express or tacit mutual consent:

There is tacit extension:

I. By plaintiff, by appearing before the court upon filing its claim;

II. By defendant, by answering the complaint and counterclaiming against the plaintiff; and

III. By any of the interested parties, when such party desists from a jurisdiction.

CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES [FCCP], art. 23.

Absent express or tacit consent to jurisdiction, however, article 24 of the FCCP, section

IV, states that by reason of territory the competent court is that “from the defendant’s domicile,

when dealing with . . . personal actions.” CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES

10 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 11 of 15 PageID #: 6044

[FCCP], art. 24. Further, the First Chamber of Mexico’s Supreme Court held in April 1998, that

“when dealing with competence conflicts, . . . full evidentiary weight should be granted to

documents where it appears that the parties have submitted themselves expressly and conclusively

to the jurisdiction of certain courts.” See Docket No. 263-1 (Competencia. Para Su Resolución

Debe Darse Valor Probatorio Pleno a Las Documentales Que Contengansometimiento Expreso de

Las Partes, 9a. Época; 1a. Sala; S.J.F. y su Gaceta; Tomo VII, Abril de 1998; Pág. 143.).

Plaintiffs’ expert does not specifically challenge any of the aforementioned authorities, which were

attached by Wobeser Hoepfner.

Based on the foregoing authorities, Wobeser Hoepfner opines that where, as here, “a

potential group of defendants have expressly submitted themselves in writing to the jurisdiction

of Mexico’s federal courts in connection with a civil dispute arising from events which took place

in Mexican waters, upon a Plaintiff’s filing informing the court of the defendants’ express

submission, a federal court will assume jurisdiction under article 23 of the FCCP.” The question

becomes, then, whether Plaintiffs properly informed the Mexican courts of Defendants’

stipulations or Judge Ward’s orders dated April 20 and May 4, 2011. The court finds they did

not.

Despite Plaintiffs’ assertions to the contrary, the evidence in the record suggests that the

Mexican courts were not aware of Defendants’ consent to jurisdiction. First, the dismissal orders

by the Mexican judges made no reference to Defendants’ jurisdictional submission.5 This

indicates that the Mexican judges were not apprised of Defendants’ position or their stipulations

5 The Mexican dismissal orders did not state or suggest, for example, that despite Defendants’ submission to jurisdiction, the court nonetheless declined to exercise jurisdiction.

11 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 12 of 15 PageID #: 6045

by Plaintiffs. Second, the complaints filed in Mexico do not state that Defendants submitted to

jurisdiction in Mexico. Rather, the complaints contain the following paragraphs:

[T]he order from the Court of the United States in the East [sic] District of Texas, Lufkin Division, the same that serves to justify the facts narrated in this document as number 10 and which has its basis on the Articles 129, 130, 132, and the other related articles of the Federal Code of Civil Procedures.

[T]here has been an attempt to sue before the United States Court in the Eastern District of Texas, Lufkin Division, the parties hereby sued but nevertheless, such Court provided on April 20, 2011, that such claim shall be filed before the Mexican Courts, being competence of this District Court.

Although Plaintiffs cite to these paragraphs as proof the they advised the Mexican courts of

Defendants’ consent to jurisdiction, these provisions merely acknowledge that the lawsuits were

previously filed in the Lufkin Division of the Eastern District of Texas. They do not advise the

court of Defendants’ express consent to jurisdiction. Notably, Plaintiffs’ counsel chose to file

similarly-worded complaints after receiving dismissal orders for the first several cases instead of

correcting the inadequacies by expressly stating that Defendants had submitted to Mexico’s

jurisdiction in writing.

Third, Plaintiffs did not file translated copies of the stipulations or the court’s orders dated

April 20 and May 4, 2011. Under article 271 of the FCCP, “any writing in a foreign language

shall be accompanied by its corresponding translation to Spanish.” CODIGO FEDERAL DE

PROCEDIMIENTOS CIVILES [FCCP], art. 271. In addition, Article 569 of the FCCP provides that

when dealing with “judgments, decisions or jurisdictional determinations that will only be used

as evidence before the Mexican courts, it will suffice if those documents satisfy the necessary

requirements to be considered authentic.” CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES

[FCCP], art. 569. As explained by Wobeser Hoepfner, this court’s documents are considered

12 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 13 of 15 PageID #: 6046

authentic in Mexico if they satisfy the requirements from the Hague Convention Abolishing the

Requirement for Legalization for Foreign Public Documents (Articles 2-5), to which both Mexico

and the United States are parties, by presenting such documents duly apostilled and with a proper

translation pursuant to FCCP Article 271. See Jorge A. Vargas, Mexican Law for the American

Lawyer, 117, 199-200 (2009) (explaining “authentic documents” as a form of evidence and the

need for an “apostille”6); see also Texas Secretary of State, Authentication of Documents,

http://www.sos.state.tx.us/authfaqs.shtml.

Plaintiffs have attached receipts acknowledging the filing of the complaints in Mexico. The

receipts include a list of exhibits attached to each complaint. A review of the lists, however,

suggests that Plaintiffs failed to file with the Mexican courts original apostilled copies with their

corresponding translations into Spanish of Judge Ward’s orders dated April 20, 2011, and May

4, 2011, or an original apostilled copy and translation of the Defendants’ April 29, 2011,

stipulations. Several of the receipts make reference to: (i) “simple” copies of the English version

of the April 20, 2011, order; (ii) “simple” copies of the English version of the April 20, 2011,

and May 4, 2011, orders; and (iii) “simple” copies of the court’s orders without noting which

specific order or whether it was in English or Spanish. Some of the lists of attachments also

mention the inclusion of an “apostille” and “statement of effect of apostille,” but these appear to

be “simple” copies rather than originals. According to various Mexican precedents, simple copies

6 An “apostille” is “a standard certification provided under the Hague Convention for authenticating documents used in foreign countries.” BLACK’S LAW DICTIONARY 112 (9th ed. 2009). The purpose of an apostille is to “abolish the requirement of diplomatic or consular legalization for foreign public documents.” Secretary of State, Authentication of Documents, http://www.sos.state.tx. us/authfaqs.shtml. A completed apostille certifies the authenticity of a signature, the capacity in which the person signing the document has acted, and identifies the seal/stamp which the document bears. See id.; see also Jorge A. Vargas, Mexican Law for the American Lawyer, 117, 199-200 (2009).

13 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 14 of 15 PageID #: 6047

(those lacking any stamp, seal, or signature) are accorded little or no probative value unless they

are weighed together with other evidence. See Docket No. 277-1 (Declaration of Wobeser

Hoepfner and copies of Mexican precedents). Moreover, except in the case of Plaintiff Feliciana

Perez Lopez de Alcudia (“Perez Lopez”),7 there appears to be no Spanish translation of Judge

Ward’s orders.

Apart from the aforementioned receipts, Plaintiffs have also failed to provide this court

with any copies of the original apostilled orders issued by Judge Ward or Defendants’ stipulations

(and their translation into Spanish) with some sort of marking (such as a date stamp by the

Mexican court) to confirm that the documents were properly filed in the Mexican courts. These

failures, along with counsel’s decision to omit any express statement in the complaints informing

the Mexican courts of Defendants’ written submission to jurisdiction strongly suggests that

Plaintiffs did not provide the Mexican courts with translated copies of Defendants’ stipulations and

duly apostilled, translated copies of Judge Ward’s April 20 and May 4, 2011, orders.

Furthermore, although the return-jurisdiction clause in this case did not expressly require

Plaintiffs to appeal the Mexican judgment, their failure to do so is perplexing given the clear

Mexican legal authority supporting the exercise of jurisdiction in cases where, as here, Defendants

have consented in writing to the jurisdiction of the Mexican courts. See Aldana, 2012 WL

5364241, at *7 (holding that even though the return-jurisdiction clause did not condition

reinstatement on appellate review by the foreign court, the plaintiffs’ failure to seek “final

7 In Perez Lopez’s case, it is unclear from the record which documents were produced in English and which were produced in Spanish.

14 Case 9:08-cv-00200-MAC Document 278 Filed 05/14/14 Page 15 of 15 PageID #: 6048

appellate review” “preclude[ed] [the court] from finding the ‘exceptional circumstances’ standard

is met”).

For these reasons, the court finds that Plaintiffs did not comply with Mexican procedural

law and did not prosecute their cases in good faith. Thus, because they have not satisfied the

conditions set forth in the return-jurisdiction clause, reinstatement is not warranted.8

III. Conclusion

Consistent with the foregoing analysis, Plaintiffs’ motion to reinstate is DENIED.

Plaintiffs shall not seek reinstatement in this court unless and until they have pursued their claims

in Mexico with diligence and good faith, including seeking final appellate review of any Mexican

dismissal. order.9 SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 14th day of May, 2014.

________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

8 Given this conclusion, the court need not address Defendants’ other arguments against reinstatement. 9 According to Defendants’ expert, Plaintiffs’ claims were dismissed without prejudice by the Mexican courts. Thus, Plaintiffs can revise their complaints and re-file them in Mexico.

15 EXHIBIT "C"

Loyola Marymount University and Loyola Law School Digital Commons at Loyola Marymount University and Loyola Law School Loyola of Los Angeles International and Law Reviews Comparative Law Review

3-1-1986

Moral Damages in Mexican Law: A Comparative Approach Edith Friedler

Recommended Citation Edith Friedler, Moral Damages in Mexican Law: A Comparative Approach, 8 Loy. L.A. Int'l & Comp. L. Rev. 235 (1986). Available at: http://digitalcommons.lmu.edu/ilr/vol8/iss2/2

This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons @ Loyola Marymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu. Moral Damages in Mexican Law: A Comparative Approach EDITH FRIEDLER*

I. INTRODUCTION**

A California resident is severely injured while vacationing in a small Mexican resort. The airline that operates the only flight to Los Angeles at the time of the accident refuses to fly the injured person home, disregardingthe serious condition and possible threat to human life. In an action for wrongful death againstthe airlineby the spouse, one of the issues likely to be raised will be whether under Mexican law punitive damages are recoverable.

Situations like this occur rather frequently, raising numerous legal issues under foreign law. Although the preceding fact situation may raise conflict of laws issues and issues under the Warsaw Con- vention, 1 this article deals exclusively with the governing tort liability and damages. In particular it focuses on "moral damages ' 2 under Mexican law. The geographical proximity between California and Mexico pro- vides opportunities for commercial and non-commercial interaction between citizens of Mexico and citizens of the United States. The relationships thus created often involve legal issues that may eventu- ally result in litigation. Conflict of laws issues are likely to arise and application of foreign law is frequent, in spite of modern theories of * J.D., 1964, University of Chile; J.D., 1980, Loyola Law School, Los Angeles, Califor- nia. Associate Professor of Law, Loyola Law School. ** The author gratefully acknowledges Professor Harry Laughran's invaluable suggestions and continuous support in the development of this article. The author is also grateful to professors Michael Wolfson and Victor Gold for their comments in developing ,various drafts of this article. The writer wishes to thank her research assistants Mary Ann Morrison and Carmen Castello for their contributions in the preparation of this article. 1. The Warsaw Convention, formally titled Convention for the Unification of Certain Rules Relating to International Transportation by Air, was created on October 12, 1929, and was adhered to by the United States on June 15, 1934. The official text of the treaty is in French and is published at 49 Stat. 3000 (1934). An English translation is published at 49 Stat. 3014 (1934) and reprinted in T.S. No. 876, 137 L.N.T.S. 11 and 49 U.S.C. app. § 1502 (1976). For a comprehensive comment, see Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 HARV. L. REV. 497 (1967). 2. Moral damages are damages that can be recovered for a non-pecuniary or non-mate- rial loss or injury. See infra text accompanying notes 91-93. Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

interest analysis. 3 Therefore, the California practitioner benefits from a basic knowledge of civil law and Mexican law. While Mexico and the United States are geographically close, so- cially and culturally they are light years apart. Mexico is part of the third world. The differences between the United States and Mexico have many significant implications on legal relations between Mexi- cans and Americans who visit Mexico. For example, because many Americans do not realize the hazards of life and business in Mexico, they cannot anticipate potential problems. Once such problems are encountered Americans may misjudge what Mexican law can and will do for them. Americans tend to assume that the moral principles and value hierarchy that govern life in the United States also govern the lives of people everywhere. This ethnocentric view of the world presents a great problem when Americans have dealings in Mexico. The law of punitive damages is one of the best illustrations of the diverging values and expectations concerning the law between Mexico and the United States. This article will show that while the concept of moral damages under Mexican law has nothing to do with the notion of punitive damages present in American jurisprudence, it is similar to the United States' practice of awarding damages for emotional distress. Since Mexico is a civil law, rather than a common law country, Section II will discuss fundamental civil law concepts, including a brief discussion of torts and damages. Section III will explore basic theories of tort liability according to Mexican law, and deals with the notion of moral damages in Mexico and applies this concept to spe- cific fact situations. Section IV discusses the relationship between moral damages in Mexico and the United States' practice of awarding damages for emotional distress. 4

3. Professor Brainard Currie developed the "governmental interest analysis approach" to choice of law. This approach examines the policies expressed in the respective laws that may govern a case and the circumstances in which it is reasonable for the respective states to assert an interest in the application of these policies. If after going through the analysis that Currie suggests, a court finds that a conflict between the legitimate interests of the two states is unavoidable, it should apply forum law. See generally B. CURRIE, SELECTED ESSAYS ON THE CONFLICTS OF LAWS (1963). However, in a recent case between a California grower and a United States corporation the California Supreme Court held that Mexican law rather than California law should apply. Wong v. Tenneco, Inc., 39 Cal. 3d 126 (1985). In Wong the California grower was conducting farming operations in Mexico that were illegal under a Mex- ican law which prohibited foreign ownership and control of farming operations. He sued the United States corporation for anticipatory damages for breach of a marketing agreement con- cerning crops grown in Mexico. Id. 4. Civil law and common law evolved from different sources and in different ways. 1986] Moral Damages in Mexican Law 237

II. BASIC CIVIL LAW CONCEPTS RELATING TO TORT LIABILITY AND DAMAGES

A. Fundamentalsof Civil Law The term "civil law" originated from the latin words jus civile, the law of the civitas. Civitas was a Roman city where only Roman citizens or cives could assert legal rights and privileges under the Ro- man law. 5 The ius gentium, "principles of law. . . common to man- kind (gentes) applied to all other free inhabitants of the Roman 6 Empire." The system of civil law is commonly believed to have originated at the time of the publication of the Law of the XII Tables in Rome in 450 B.C. Today, civil law is the dominant body of law throughout most of Western Europe, all of Central and South America, many parts of Asia and Africa, and even in a few enclaves in common law countries. For example, the United States is a common law country, but Louisiana and Puerto Rico are civil law jurisdictions. Similarly, though Canada is a common law country, Quebec is a civil law 7 jurisdiction. The term "civil law" refers to the Roman law as set forth in the Justinian Code in the 6th Century A.D. 8 as reinterpreted by the

There are terms like "tort" in common law and "fault" in civil law that cannot be translated from one legal system into the other because the concepts themselves are different. Therefore, an effort is made to provide the reader with a basic explanation as to the meaning of unfamiliar terms. To aid in the understanding of the paper, the author uses some conventional terms with a given meaning. For example, instead of talking about civil delicts and quasi delicts which together are the closest equivalent in civil law to the common law "tort," the word "civil tort" is employed. Each term is defined in the section in which it appears. 5. Dainow, The Civil Law and the Common Law. Some Pointsof Comparison, 15 AM. J. CoMP. L. 419, 420 (1967). 6. The ius gentium may be defined as the universal element, in antithesis to the national peculiarities (ius civile), to be found in the positive law of every state ... In a practical sense ius gentium covered only those rules, institutions and principles of actual Roman Law which, owing to their simplicity and correspondence with the general practice of mankind, were applied to cives and peregriniindifferently, the ius civile describing, in this antithesis, those not so extended. F. DE ZULUETA, THE SCIENCE OF LAW IN THE LEGACY OF ROME 201-02 (1962). 7. J. MERRYMAN & D. CLARK, COMPARATIVE LAW: WESTERN EUROPEAN AND LATIN-AMERICAN LEGAL SYSTEMS, CASES AND MATERIALS 3 (1978). 8. Roman law was the law of the Roman citizens from 450 B.C., the date of the publica- tion of the Law of the Twelve Tables, until 565 A.D., the date of the death of the emperor Justinian. This emperor codified the existing Roman law, including his own legislative enact- ments in a monumental work, The Corpus Juris Civilis. With the fall of the Roman Empire, The Corpus Juris Civilis fell into disuse and systems of Roman Vulgar Law (Roman law in a cruder version) took its place together with Germanic legal customs as the law of the peoples settling in Western Europe. In the 11th century, with the founding of the University of 238 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

Glossators, Commentators, Humanists and Natural Law exponents, and ultimately recodified in the nineteenth century. 9 Modem civil law has also been influenced by Canon Law and Germanic customary law. '0 There are three fundamental differences between civil law and common law: (1) the sources of law; (2) the role of the judge; and (3) the nature of the proceedings. In a civil law system the primary source of law is codified legisla- tion, whereas a common law system relies primarily on stare decisis, or case law. Civil law codes usually differ from common law statutes in the following ways: A [civil law] code is not a list of special rules for particular situa- tions; it is rather, a body of general principles carefully arranged and closely integrated. A [civil law] Code achieves the highest level of generalization based upon a scientific structure of classifi- cation. A [civil law] Code purports to be comprehensive and to

Bologna, The Corpus Juris Civilis of Justinian was not only the subject matter of legal educa- tion, but it became the law of the Holy Roman Empire. The law courses at Bologna attracted students from all over Europe. These students in turn, applied Roman law in their own coun- tries. New universities were founded in the image of Bologna and, so, Roman law became the ius commune (the common law) of Western Europe. There were different opinions as to the right way of approaching the study of Justinian's The Corpus Juris Civilis and so, Glossators, Post Glossators, Humanists, Natural Law expo- nents and scholars of the Historical school all left their mark in this system of law. With the growth of the concept of nation and sovereignty in the 15th Century, the idea of ius commune faded and Roman law was "received," that is incorporated as a binding body of law in the national law of each country. Eventually, in the 19th Century the principal states of Western Europe enacted civil codes (and other codes) of which the French Civil Code of 1804 is the archetype. Id. at 72-73. The subject matter of these civil codes was almost identical with the subject matter of the first three books of the Institutes of Justinian and the ius commune of medieval Europe. . . . A European or Latin American [Mexican] civil code of to- day clearly demonstrates the influence of the Roman law and its medieval revival. Id. at 73. The French Civil Code together with its legal institutions and scholarship has influenced a majority of civil law countries. The armies of Napoleon carried French law throughout Eu- rope and later this influence took place under French Colonialism. When the Spanish Empire in Latin America dissolved in the 19th Century, it was to the French Civil Code that the law makers of the new nations turned for inspiration. The French Civil Code remains in effect to this day with revisions, inter alia, in the Spanish Civil Code of 1888. M. GLENDON, M. GORDON & C. OSAKWE, COMPARATIVE LEGAL TRADITIONS. TEXT, MATERIALS AND CASES 55 (1985). Thus, mentions to the French Civil Code and to French scholarship are frequent in this paper. 9. Schiller, The Nature and Significance of Jurists Law, 47 B.U.L. REV. 20, 37-38 (1967). 10. For a very good study of the influence of Roman Law on Western law see P. Kos- CHAKER, EUROPA UND DAS ROMISCHE RECHT (1947). 1986] Moral Damages in Mexican Law

encompass the entire subject matter, not in the details but in the principles, and to provide answers for questions which may arise. I' Common law statutes do not maintain the same level of general- ity as civil law codes do, nor do they purport to be all embracing. They do not have the conceptual and terminological consistency found in the codes. The legislature resorts to statutes to respond to current particularized needs, i.e., rent control, environmental regula- tion, labor practices, etc. Statutes outside of the codes are more easily amended and, therefore, more appropriate as circumstances change. Civil law codes tend to be more general and encompass a broader range of circumstances than do common law statutes. In civil law, legal scholars' views and treatises are treated as a primary source of law, while in common law the legal scholars' views are given less weight. In spite of the differences between common law and civil law, the growing importance of case decisions in civil law and the greater tendency to rely on statutes in common law has begun to create an area of convergence between common law and civil law. 12 The role of the judge in civil law differs from the role of the judge in common law. This is due in part to the difference in the source of law between the two systems. Civil law judges must apply codified law by means of a process of deduction, in which general codified principles are applied to a specific case before the judge.' 3 For in- stance, in an action for wrongful death brought in a French court, a judge must look at the specific fact situation and decide whether there is a tort which is actionable under section 138214 of the French Civil Code. 15 Civil law codes attempt to cover a wide range of unforeseen fact situations by way of substantive provisions of utmost generality and 11. Dainow, supra note 5, at 424. 12. For a good analysis of the role of statutes in modem civil law and common law, see Glendon, The Sources of Law in a ChangingLegal Order,17 CREIGHTON L. REV., 663, 668-69 (1984). 13. For a good discussion of the role of a judge in civil matters in France, see Perrot, The Judge: The Extent and Limit of His Role in Civil Matters, 50 TUL. L. REV. 495 (1976). 14. In France and most civil law countries including Mexico, the code sections are num- bered using the term article or articulo. These terms have been translated into English as "articles" or "sections." Since the term "article" is more appropriate for use in constitutional and international law, for the purposes of this paper, the word "section" will be used where referring to the codes. 15. CIVIL CODE [C. CIV.] § 1382 (amended July 1, 1976) (J. Crabb trans. 1976) (Fr.). Section 1382 is the most important statute on tort liability in French law. In very general terms it provides that: "Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation." Id. 240 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

flexibility. These so called "general clauses" of the codes may pro- vide, for example, that all immoral transactions are void or that every obligation must be performed in good faith. 16 Thus, in an action for damage of goods in a civil law country which has not enacted anti- trust legislation, an exclusion of liability clause in a contract will most likely be considered immoral or contra bonos mores,1 7 and the judge will declare the exclusion clause void and find for the plaintiff.18 If there are gaps or lacunae in the code (that is, there are no statutes which specifically pertain to the particular case), the judge must nevertheless decide the case, either by use of general clauses, by analogy, or by applying general principles of law. A judge cannot refuse to decide a case simply because there is no applicable law gov- erning the case. 19 For example, the French legislature in 1804 did not envision lia- bility for automobile accidents. The only code section that by analogy could be said to apply to automobiles was section 1384 of the Civil

16. Section 242 German Civil Code: "The obligor is bound to perform the obligation in such a way as is required by the principles of bona fides with due regard to existing usage." The CIVIL CODE. [C. CIV.] § 242 (amended Jan. 1, 1976) (W. Ger.) (. Forrester, S. Goren & H. Ilgen trans. 1976). The German Civil Code enacted in 1896 and in effect as of January 1, 1900 as amended, remains the law of the German Federal Republic (West Germany). All references to the German Civil Code in this paper refer to the 1896 (West German) Code as amended. 17. Section 138 Subdivision (1) German Civil Code: "A jural act which is contra bonos mores (violative of the commands of morality) is void." C. civ. § 138 SUB. I (amended Jan. 1, 1976) (W. Ger.) (. Forrester, S. Goren & H. Ilgen trans. 1976). 18. Many civil law countries use contra bonos mores (against good morals or against good customs or simply immoral) as a "general clause" that allows a judge great flexibility in decid- ing whether a particular conduct is immoral and, therefore, becomes a basis of liability. For example, Section 1133 of the French Civil Code states: "A causa is illicit when it is prohibited by law, or when it is contrary to morality or public policy." C. av. § 1133 (amended July, 1976) (Fr.) (. Crabb trans. 1976). The same idea is reflected in Section 1910 of the Mexican Civil Code: "He who acting illegally or against good customs causes damage to another, is obliged to repair it, unless he proves that the damage occurred in consequence of the fault or inexcusable negligence of the victim." (M. Gordon trans. 1980). Mexico, like the United States, is a Federal Republic with twenty nine states, two territories and a federal district like the District of Columbia. All references to the Mexican Civil Code in this paper are directed to the Civil Code for the Federal District and Territories, promulgated August 30, 1928, effec- tive October 1, 1932. This Code has served as a model to the civil code of the individual states and is also used as a "back up" code for interpreting federal case law. See Butte, Strict Liabil- ity in Mexico, 18 AM. J. CoMp. L. 805 n.2 (1970). 19. "The judge who refuses to judge, on pretext of the silence, obscurity or insufficiency of the law, may be prosecuted as guilty of a denial of justice." C. civ. 4 (amended July 1, 1976) (J. Crabb trans 1976) (Fr.). "The silence, obscurity or insufficiency of the law do not authorize the judges or courts to refrain from deciding a controversy." Mexican Civil Code 18. (M. Gordon trans. 1980). 1986] Moral Damages in Mexican Law

Code which states: "[e]veryone is responsible not only for the dam- ages caused by his own acts, but also for damage caused by acts of persons for whom he must answer or by objects in his custody."' 20 In 1930 the highest French court (Cour de Cassation) decided that this section established an independent basis of liability and that the custo- dian (owner or driver) of an automobile (or other instrumentality) 21 which causes an accident, is presumptively liable. The preliminary titles of most civil codes, with the exception of the German Code, contain directions on interpretation and applica- tion of the code. 22 The codes normally order judges to base their deci- sions on specific code sections. 23 Normally, a judge may not base his/ her decision on prior case law. To do so would convert a prior judi- cial decision into a "general rule of conduct" 24 (staredecisis), which is not normally permitted in a civil law system. Civil law judges must cite at least one statutory provision as a basis for their decision. A decision based solely on case precedent will be reversed for "lack of legal basis."' 25 However, in some civil law countries, including Mexico, a court decision may become law. This occurs when a particular legal issue is decided by the highest court, or another specified tribunal, in an appreciable number of cases. The uniform judicial decisions become juris prudence constante or juris- prudencia (Mexico), which may become binding law in future cases. Resort to jurisprudence constante is particularly helpful in situations where there are very few legislative provisions, as in France in con-

20. C. civ. § 1384 (J. Crabb trans. 1976) (Fr.). 21. R. SCHLESINGER, COMPARATIVE LAW, CASES AND MATERIALS 514-15 (4th ed. 1980). 22. "When there is no law exactly applicable to the point in controversy, the customs of the place shall be observed, and in the absence thereof, the general principles of law." Spanish Civil Code § 6, quoted in id.at 228. "Juridical controversies of a civil nature shall be decided in accordance with the letter of the law or its juridical interpretation. In the absence of a law, they shall be decided in accordance with general legal principles." Mexican Civil Code § 19 (M. Gordon trans. 1980). 23. "Judges are forbidden to pronounce decisions by way of general and regulative dispo- sition on causes which are submitted to them." C. civ. § 5 (J. Crabb trans. 1976) (Fr.). A judge who violates this prohibition is, theoretically, guilty of a criminal offense. CODE PENAL [C. PEN.] 127 (Fr.) quoted in R. SCHLESINGER, supra note 21, at 578. 24. R. SCHLESINGER, supra note 21, at 578. 25. The traditional style of French decisions has historical roots. After the Revolution of 1789, the French people deeply distrusted judges because of the experiences under the royal regime. Also, Montesquieu had proclaimed the doctrine of separation of powers and only the legislature could make law in a general way. H. CAPITANT, LES GRANDS ARRETS DE LA JU- RISPRUDENCE CIVILE (7th ed. 1976) reprinted in H. LIEBESNY, FOREIGN LEGAL SYSTEMS, A COMPARATIVE ANALYSIS 56-59 (4th ed. 1981). 242 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

nection with tort liability. 26 The final difference between civil law and common law is found in the nature of the judicial proceeding. In civil law there is neither a "trial," nor a jury. The civil law system prefers documentary evi- dence over witness testimony, with the latter receiving very little weight. 27 In addition, in a civil law court, only the judge cross-exam- ines witnesses. Civil court proceedings consist of a series of isolated hearings. Further, there is no formal pre-trial discovery.

B. The Concept of Tort in Civil Law In order to comprehend the notion of tort liability under Mexi- can law, and in particular, moral damages, a brief explanation of the civil law counterpart of common law tort liability is necessary. The statements that follow refer to the civil law in general. The basic prin- ciples of civil law tort liability apply to Mexican law. Any general differences between Mexican law and civil law will also be discussed below. There is no equivalent civil law term for the common law term "tort." The common law term "tort" is extremely difficult to trans- late into civil law terminology because of the fundamental division of civil law into "public law" and "private law." '2 8 As a consequence of this division, tort liability belongs to the category of private law and is part of the law of obligation or a source of an obligation. 29 The law of

26. It is interesting to observe that out of a total of 2283 sections in the French Civil Code, only five (1382-86) are devoted to what the common law calls tort liability. Most of the French law on this subject was developed by the French highest court, the Cour de cassation, acting very much like a Common Law court. Tunc, The Twentieth Century Development and Function of the Law of Torts in France, 14 INT'L & COMP. L.Q. 1089, 1091 (1965). 27. Documentary evidence is similar to common law "writings" which are one category of demonstrative evidence. MCCORMICK ON EVIDENCE 524 (E. Cleary 2d ed. 1972). 28. Roman law and continental European legal doctrine and its offspring divide all law into public law and private law. Public law is understood to be that body of law which governs the affairs of the community (state, municipalities, etc.). Private law regulates such legal rela- tions in which persons (without any display of authority, that is, on the basis of equality) stand against each other as individuals. M. KASER, ROMAN PRIVATE LAW 22 (R. Sannenberg & Butterworths trans. 1965). 29. An obligation is a bond by which the one party is bound to perform and the other entitled to receive some act or forbearance. The term obligatio sometimes denotes the right, oftentimes the duty, but more properly it denotes the whole relationship. B. NICHOLAS, AN INTRODUCTION TO ROMAN LAW 158 (1962). This concept of obligation is derived from the Roman Law as found in Digest 44.7.1 and Inst. 3, 13.2. (These references are to the Digest and the Institutes which comprise two parts of Justinian's The Corpus Juris Civilis. See supra note 8). The other two parts are the Code and the Novels. Id. For a good summary of Roman sources and explanations as to their conventional citation, see A. SCHILLER, ROMAN LAW 1986] Moral Damages in Mexican Law 243

obligations covers all acts or situations which can give rise to rights or claims and is customarily divided into three parts: the law of con- 30 tracts, the law of torts, and the law of unjust enrichment. There are two civil law terms which relate to the common law concept of tort. They are delict and quasi-delict.31 These terms apply to both criminal and civil causes of action. Penal delicts and penal quasi-delictsare governed exclusively by the penal codes and therefore are not pertinent to this discussion of tort liability. The terms civil delict and civil quasi-delict parallel the common law notions of intentional and negligent tort. 32 Generally, a delict is an unlawful or illicit act committed with intent to harm and a quasi- 33 delict is an unlawful or illicit act committed without intent to harm. In civil law there are no torts, there is only a law of tort. 34 This means that in civil law there are no specific torts such as false impris- onment, assault or battery. Section 1382 of the French Civil Code is a good example of a civil law code concerning the law of tort. It provides: "Any act whatever of man which causes aamage to another obliges him by whose fault it occurred to make reparation. 3 5 The section is drafted in a very general manner. There are no specific torts and therefore even the distinction between negligent and intentional torts becomes irrelevant. The only distinction among the different theories of liability is reflected in the amount of damages awarded.

chapter 11 (1978). The situations that give rise to an obligation according to the Romans were contracts, quasi contracts, delicts and quasi-delicts. Inst. 3, 27, 4, 5 respectively. 30. "The distinction between contractual and delictual (tort) responsibility has been treated as fundamental in civil law theory, even though both contract and delict are regarded as parts of the single field of obligations." M. GLENDON, M. GORDON & C. OSAKWE, supra note 8, at 262. 31. As an example, one person may have a claim against another because he or she gave a sum of money to another as a loan. This claim arises from a contract. A person may also have a claim against another because someone wrongfully damaged a thing belonging to that per- son. This claim against the wrongdoer arises from the delict. Today, this would be a claim for damages. M. KASER, supra note 28, at 135. 32. The term "civil tort" will be used in this paper to refer to civil law torts, that is civil delicts and civil quasi-delicts (intentional and negligent tort). 33. A. VON MEHREN & J. GORDLEY, THE CIVIL LAW SYSTEM 577 n.44 (2d ed. 1977). 34. Speaking of French law, Tunc says: "We have no specific torts. We have a general law of tort, based on the general principles of Articles 1382 and 1383." Tunc, supra note 26, at 1091. The use of the word in the singular is deliberate. "The common law knows not tort but torts-a bag of nuts and bolts." Catala & Weir, Delicts and Torts: A Study in ParallelPart I, 37 TUL. L. REV. 573, 580 (1963). "The French law of tort is essentially judicial application of five articles of the civil code. In contrast, the common law systems know not contracts, but contract." H. DE VRIES, CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 367 (1973). 35. C. ciV. § 1382 (J. Crabb trans.) (Fr.). 244 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

Tort law in most civil law countries, including Mexico, is founded on 36 sections 1382 and 1383 of the French Civil Code. Sections 1382 and 1383 are derived from the famous Lex Aquilia enacted by the Romans in 286 B.C. 37 The Lex Aquilia with its exten- sions provided the most comprehensive and important tort remedy available in Roman law. A brief look at the Roman notion of "tort" is necessary to understand the modem civil tort. Roman law was also divided into public and private law. 38 Con- sequently, the Romans distinguished between crimes against the com- munity or state, called crimina publica and wrongs against the individual, his family or his property, called delicta privata. Crimina publica were litigated by the state and typically involved treason and assaults on government officials. The delicta privata, from which to- day's civil law concepts of delict and quasi-delict originated, could be litigated in a private suit only by the victim. The wrongdoer was treated as the debtor of the victim, which meant that the victim was entitled to a sum of money from the wrongdoer. Thus, the Roman law delict action gave rise to an obligation to pay a sum of money (poena)39 to the victim, in addition to any other damages awarded to the victim. 40 For example, delictal actions were classified as penal (actio ex

36. "Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation." C. civ. § 1382 (J. Crabb trans.) (Fr.). "Everyone is responsible for the damage he causes, not only by his act, but also by his negligence or his imprudence." Id. at § 1383. 37. The Lex Aquilia allegedly of 286 B.C. was voted as a plebiscite, that is by the con- silium plebis, the assembly of the Plebeians. Initially it would only have been enforced amongst the Plebeians, but in the same year the Lex Hortensiawas passed and it gave plebi- scites general force of law over Patricians and Plebeians alike. JORS & KUNKEL, DERECHO PRIVADo ROMANO, 364-65 (1965). The text of the Lex Aquilia as extended by the Praetor (the Roman magistrate in charge of judicial affairs) and with the comments of the jurists is found in Digest, 2, 1-11. See supra note 29. 38. See supra note 28. 39. The poena (punishment) is pecuniary and its purpose is to benefit the victim. This is a residue of the primitive concept that the sanction for every wrong was private vengeance from which the wrongdoer could not escape unless the victim or his family would accept ransom money. That the punishment was a sum of money and that the cause of action be- longed to the victim does not prevent it from being primarily a way of inflicting punishment. V. ARANGIo-Ruiz, LAS ACCIONES EN EL DERECHO PRIVADO ROMANO 127-28 (1945). The same line of thought is found in W. BUCKLAND & A. McNAIR, ROMAN LAW AND COMMON LAW 344 (1952). 40. B. NICHOLAS, supra note 29, at 210. R. MONIER, MANUEL DE DROIT ROMAIN. LES OBLIGATIONS 38 (1954). 1986] Moral Damages in Mexican Law 245

delicto).4 1 In contrast, all other private law actions, whether in rem 4 2 or in personam,4 3 were classified as compensatory actions (reipersecu- tory or ad rem persequendam).4 One of the delictaprivata was theft (furtum), and the appropriate action for theft was the actio furti, a penal action. It allowed for the recovery of double, triple, or quadru- ple the value of the stolen thing according to certain distinctions in the law. If the stolen thing was in the hands of a third party, the victim could use the actio furti as rei persequendam to recover the 45 stolen property or its value. Unlike civil law today, Roman law did not use the terms delict and quasi-delict to distinguish between intentional and negligent ac- tions. However, the terms delict and quasi-delict did exist in Roman law. In Roman law, delict referred to four fact patterns which consti- tuted a private offense. These four private law delicts (delictaprivata) were: (1) theft (furtum), (2) robbery (rapina), (3) damage unlawfully caused (danum iniuriadatum), and (4) insult (iniuria).4 6 A delict in Roman law could consist of either intentional or negligent conduct. There were also only four fact situations which comprised the Roman law quasi-delict. These were: (1) judicial acts contrary to the law (iudex, qui litem suam fecerit); (2) things thrown or poured into the street from a dwelling (directum vel effusum); (3) something placed on, or suspended from, a building which fell and injured some- one (positum vel suspensum); and (4) loss to a customer by thievery or by damaging the customer's property caused by an innkeeper's assist- ants (nauta, caupo and stabularius).4 7 Thus, Roman law quasi-delicts could consist of either intentional or negligent conduct. Furthermore, the last three situations actually gave rise to actions based on what the common law would consider strict liability. The criteria for catego- rizing the aforementioned fact patterns as either delicts or quasi-de- licts remains unclear.

41. Examples of these actiones delicto are: actiofurti (theft), actio iniurarum (bodily in- jury and insult to person). B. NICHOLAS, supra note 29. 42. Typical actions in rem were reivindicatio(protection of property) and vindicatio servi- tutis (protection of easement). Id. 43. Frequently used actions in personam were actio certae creditaepecuniae (recovery of money loaned) and actio venditi (action of the seller to obtain payment for the thing sold). Id. 44. "A rei persecutory action commonly results in the payment of compensation, and a penal action in the payment of more than compensation, but the essential distinction is to be found in the punitive or vindicative character of the penal action." Id. at 210. 45. Id. at 212-13. 46. Gaius, Institutes 3, 182. See supra note 29 for reference to Roman sources. 47. Digest 44.7.5; Inst. 4, 5. See supra note 29. Loy. L.A. Int'l & Comp. L. J [Vol. 8:235

The concept of fault or culpa, the cornerstone of civil tort liabil- ity, originated from the Lex Aquilia which introduced extra-contrac- tual fault 48 for the first time (although the concept of fault existed in contract actions prior to the Lex Aquilia). The Lex Aquilia essentially made the defendant liable for damages if the defendant acted iniuria, that is, non iure or without a right. 49 The Roman law concept of "fault" was referred to as Aquilian or delictal in order to differentiate it from contractual fault. Aquilian or delictal fault formed the basis of French civil tort liability5° which in turn formed the basis of Mexican civil tort liability. The French Civil Code does not define fault. However, section 1382 of the French Civil Code alludes to the concept of fault. Section 1382 provides that: "[a]ny act whatever of man which causes damage to another obliges him by whose fault it occurred to make repara- tion."5 The French scholar Toullier, stated that: The true meaning of our article 1382 is, therefore, that one who causes damage to another by doing something which he does not have the right to do or by neglecting to do what he ought to do, is obligated to make52 reparation for the damage that has occurred through his fault. In common law terms, French civil law "fault" exists when there is a breach of a duty of care. Modern civil law scholars Von Mehren and Gordley stated that "besides duties imposed by the criminal law and by specific texts from the civil or other codes, it [French civil law "duty of care"] includes a general duty not to act in such a way as to injure others. '5 3 This duty of care is owed to all the world and therefore the de-

48. It originated in actions not involving a contract. 49. "To act without a right came to mean to act with dolus or culpa, that is, willfully or negligently." A. VON MEHREN & J. GORDLEY, supra note 33, at 567. 50. OURLIAC ET MALAFOSSE, L'HISTOIRE Du DROIT PRIVE. LEs OBLIGATIONS 375 (1961). 51. The French Civil Code merges the delict and quasi-delict under the generic term "fault." "The idea of fault includes all; it is the unjustified injury which gives rise to the obligation to indemnify; it matters little in what manner the injury was caused." 2 PLANIOL, TRAITE ELEMENTAIRE Du DROIT CIVIL 442, Part I, No. 827 (Louisiana State Law Institute trans. 1959). 52. Toullier, Le Droit Francais,in A. VON MEHREN & J. GORDLEY, supra note 33, at 576. 53. A. VON MEHREN & J. GORDLEY, supra note 33, at 581. The well-known contempo- rary French scholar Andr6 Tunc uses the same language: "The duty of care is owed not to certain people or to certain circles of people. It is a general duty to the public at large." Tunc, supra note 26, at 1091. 1986] Moral Damages in Mexican Law 247

fendant will almost always be found at fault with respect to 54 someone.

C. "Damages" in Civil Law

In order to understand the notion of "moral damages" in Mexi- can law, it is important to understand the civil law concept of dam- ages. The term "damages" is often used to refer to two distinct concepts: "injury," which constitutes grounds for a suit, and "recov- ery," what the court awards to the plaintiff. To avoid confusion, the words "damage" and "damages" will be used herein to refer to the civil law injury, loss, or violation of rights suffered by the plaintiff. The term "recovery" will be used, instead of "damages," to denote the civil law recovery awarded by the court to the plaintiff. Most civil law scholars define damage as any loss of a person's "patrimony. ' '5 5 The word "patrimony" is a term of art which, like many other civil law terms, does not have an equivalent term in com- mon law. 56 There is some disagreement as to the definition of patri- mony. Some scholars define patrimony as the totality of a person's legal rights and assets 57 which include: (1) real and personal property (referred to in civil law as "material" property), and (2) rights (re- ferred to in civil law as "moral rights" or "rights of personality"). "Rights" include such things as the right to be free from emotional distress, the right to maintain and protect one's honor and reputation, and rights comparable to those espoused in the United States Consti- tution Bill of Rights. Some civil law scholars who disagree with the view that patri- mony consists of both material property and moral rights 58 define pat- rimony as consisting of only the totality of a person's personal property and real property rights ("material" property). These schol- ars use the term "extra-patrimony" to refer to the totality of one's moral rights.

54. Id. 55. R. ROjINA VILLEGAS, DERECHO CIVIL MEXICANO 117 (3d ed. 1976); E. GUTIER- REZ Y GONZALEZ, DERECHO DE LAS OBLIGACIONES 640 (5th ed. 1974). 56. The term patrimony is a legal fiction which is separate and independent from its individual components. In a sense, the notion of patrimony is similar to the common law concept of a corporation which is a legal fiction independent from its individual shareholders. 57. E. GUTIERREZ Y GONZALEZ, supra note 55, at 642. 58. M. BORJA SORIANO, TEORIA GENERAL DE LAS OBLIGACIONES 427 (7th ed. 1971). See also PLANIOL, supra note 51, at 471. Loy. L.A. Intl & Comp. L. J. [Vol. 8:235

D. Moral Damages in Civil Law Most civil law scholars define moral damage in a negative sense as any loss which does not affect material property. 59 More accu- rately, moral damage is a loss to the "rights of personality" (droits de la personalite), or moral rights, which involve an affront to one's 60 honor, reputation, feelings, emotions, or peace of mind. Civil law scholars classify moral damages into three categories. These are: (a) injuries involving social concerns, such as one's honor, prestige, or reputation in the community; (b) injuries involving a per- son's feelings (similar to common law emotional distress and pain and suffering injuries); and (c) physical injuries which have an emotional impact on the victim (such as scars, disfiguration and the like, which might not involve physical disability, but cause emotional distress). 6' Material damage, unlike moral damage, occurs when there is loss or injury to one's real or personal property ("material" property). Civil law scholars are in disagreement as to whether the courts should award recovery for moral damages. Civil law scholars can be divided into three groups on this point: (1) those who do not believe there should be any recovery at all for moral damages; (2) those who believe there should be recovery for moral damages only if there is proof of material damage; and (3) those who believe that there should be recovery for moral damages even if there is no proof of material damage. The argument of the first group of scholars against awarding any recovery for moral damages is similar to common law arguments that negligent infliction of emotional distress should not be an in- dependent cause of action due to the difficulty of measuring and prov- ing loss, and the likelihood of abuse. The second group of scholars would require, for example, that moral damage recovery be awarded to a widow for the wrongful death of her deceased husband only if the widow established that she had been financially dependent upon her husband and that her relationship (marriage) with her husband prior to his death was sanctioned by law. Finally, the third group would permit recovery for the interference with a person's religious or patri- otic feelings and beliefs. 62 59. R. BREBBIA, EL DANO MORAL 75 (1967); M. BORJA SORIANO, supra note 58; Y. AVILA RAMIREZ, LA REPARACION DEL DANO MORAL 30-34 (1960). 60. R. ROJINA VILLEGAS, supra note 55, at 128. 61. M. BORJA SORIANO, supra note 58, at 427. 62. The following discuss all three scholarly arguments: PLANIOL, supra note 51, at 471; R. TOULEMON & J. MOORE, LE PREJUDICE CORPOREL ET MORAL EN DROIT COMMUN. 135 (3d ed. 1968); Catala & Weir, Delicts and Torts: A Study in ParallelPartIII, 39 TUL. L.R. 663, 19861 Moral Damages in Mexican Law 249

French courts previously adhered to the view that there should not be any recovery for moral damages. French courts would not allow recovery unless the loss or injury constituted material damage, and could be measured in monetary terms. Since moral damages con- sist of violations of moral rights, such as the right to free exercise of religion, the French courts would not grant recovery because of the difficulty of putting a price tag on such damage. Therefore, French courts only permitted recovery for loss to one's "material" property. Recently, the French courts adopted the third view and began award- ing recovery for moral damages without requiring proof of material damage. 63 However, the majority of civil law jurisdictions still follow the second view and allow recovery for moral damage only if there is proof of material damage. Civil law scholars are well aware of the difficulty of putting a price tag on moral damage injuries. Under the French Civil Code, determination of awards for moral damages is extremely subjective because there are no specific code guidelines or limitations. French Civil Code" section 1382 simply requires the wrongdoer "to make reparation. '65 French scholars, acutely aware of the subjective, vague nature of the French Civil Code's provision for awarding moral dam- ages recovery, often facetiously quote French writer Anatole France's statement that "justice is giving each one his due: to the wealthy, his ' 66 wealth and to the poor, his poverty."

III. TORT LIABILITY AND RECOVERY UNDER MEXICAN LAW

A. General Theories of Tort Liability An overview of the fundamental concepts of tort liability under 701 (1964). E. GUTIERREZ Y GONZALEZ, supra note 55, at 646-49;M. BORJA SORIANO, supra note 58, at 428-30; A.M. VERA CID, EL DANO MORAL 37-42 (1966); and Y. AVILA RAMIREZ, supra note 59, at 37. 63. This change of attitude is clearly noticed by Toulemon and Moore when they say: "La jurisprudence, a fini par admettre le prejudice sentimental sans aucun alliage de dommage pecuniare et pour ainsi dire a l'etat pur." Judicial decisions have finally accepted the idea of sentimental (non-pecuniary) damage without any relationship to a finding of material damage, in a pure state, so to speak (translation by the author). R. TOULEMON & J. MOORE, supra note 62, at 138. 64. See supra text accompanying note 15. 65. In the words of Touleman and Moore, "le judge lorsqu'il applique Particle 1382 a pourfonction, non de punir lafaute, mais d'ordonnerla reparationdu dommage. Le Prejudice Corporelet Moral," R. TOULEMAN & J. MOORE, supra note 62, at 115. The judge in applying Section 1382 has the task, not of punishing the negligent act, but of decreeing the reparation of the damage that has been caused (translation by the author). 66. R. TOULEMON & J. MOORE, supra note 62, at 119. 250 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

Mexican law will assist in the comparison of Mexican moral damages with the common law notion of punitive damages. The fundamental basis of tort liability in Mexican law, as in French law, is the occur- rence of an unlawful or illicit act causing injury which necessitates reparation. This is known as the "subjective" theory of tort liability which is based on fault (culpa). Section 1910 of the Mexican Civil Code sets forth the obligation to repair and reads as follows: "[h]e who acting illegally or against good customs, causes damage to an- other, is obliged to repair it unless he proves that the damage oc- curred in consequence of the fault or inexcusable negligence of the 67 victim." This section, like section 1382 of the French Civil Code, bases civil tort liability squarely on fault. 68 The term "illegally" in section 1910 refers to illegal conduct, whether intentional (dolosa) or negli- gent (culposa). Although today's civil law term delict refers to inten- tional conduct and quasi-delict refers to negligent conduct, under section 1910 of the Mexican Civil Code (and section 1382 of the French Civil Code) there is no distinction between intentional and negligent conduct. 69 For example, a defendant driving a car commits the illicit act of hitting the plaintiff in the crosswalk as the plaintiff crosses the street. The defendant is at "fault" regardless of whether the defendant intentionally hit the plaintiff or negligently failed to no- tice the plaintiff crossing the street. In 1928, Mexican Civil Code section 1913 introduced for the first time an additional theory of tort liability which is still in effect in essentially its original form. 70 This additional form of liability focuses exclusively on whether there has been injury due to the defendant's use of a dangerous instrumentality. This theory, called "objective" or "created risk" liability, abandons the Roman law tradition of looking to "fault" as the source of civil tort liability. Under section 1913, objective liability is quite similar to the common law notion of strict liability, and in particular, strict liability for ultrahazardous activity. 7'

67. Mexican Civil Code § 1910 (M. Gordon trans. 1980). 68. See supra text accompanying notes 54-55. 69. With respect to the distinction between delict and quasi-delict, Planiol says: On closer analysis, there appears to be no reason for maintaining two distinct catego- ries of the sources of obligations, both are illicit acts, both obligate their authors in the same manner to repair the damage they cause. It would seem then that the distinction should disappear, it not being founded on any practical difference. PLANIOL, supra note 51, at 443. 70. Mexican Civil Code § 1913 (M. Gordon trans. 1980). 71. Id. 1986] Moral Damages in Mexican Law

Section 1913 of the Mexican Civil Code provides as follows: When a person makes use of mechanisms, instruments, apparatus or substances which are dangerous in themselves, by reason of ve- locity which they develop, their explosive or inflammable nature, the strength of the electric current they conduct, or for other analogous causes, he is liable for the damage he causes although he does not act illegally, unless he proves that such damage was pro- 72 duced by the fault or inexcusable negligence of the victim. Under section 1913, the defendant who hit the plaintiff crossing the street will be held liable (unless the plaintiff was contributorily negli- gent), regardless of whether there was civil fault, because the defend- ant caused injury to the plaintiff by using a dangerous 73 instrumentality, a car. Whether or not a plaintiff can recover for moral damage depends upon whether or not the plaintiff must prove fault. Proof of fault is required under section 1910, but is not required if the cause of action is based on section 1913. Proof of fault is an essential prerequisite to 74 obtaining moral damages recovery.

B. Mexican Law Civil Tort Recovery Section 1910 of the Mexican Civil Code provides the fundamen- tal basis for Mexican tort liability and recovery. 75 Most Mexican scholars follow the civil law majority view that a plaintiff can recover for "material" and "moral" damage. 76 This view is based on the fact that section 1916 of the Mexican Civil Code 77 specifically refers to moral damages. The general rule for Mexican civil tort recovery is found in sec- tion 1915, subdivision (1) of the Mexican Civil Code, which provides

72. Id. 73. Id. 74. Id. § 1910. 75. "He who acting illegally or against good customs causes damage to another, is obliged to repair it, unless he proves that the damage occurred in consequence of the fault or inexcusable negligence of the victim." Mexican Civil Code § 1910 (M. Gordon trans. 1980). See also M. BORJA SORIANO, supra note 58, at 409. 76. M. BoRJA SORIANO, supra note 58, at 409, 428-30. 77. The statutory basis for the award of moral damages in Mexico is § 1916: Independently of the damages and losses, the judge may grant in favor of the victim of an illegal act, or of his family if the victim dies, an equitable indemnity as a moral reparation to be paid by the person responsible for the act. Such indemnity cannot exceed one-third (1/3) of the amount of civil liability. The provisions of this article shall not be applied to the State in the case mentioned in Article 1928. Mexican Civil Code § 1916 (M. Gordon trans. 1980). Loy. L.A. Int'l & Comp. L. J [Vol. 8:235

as follows: "The repair of the damage shall consist, at the election of the injured party, in the restoration of the status previously existing, 78 when this is possible, or in the payment of damages and losses." Section 1915, as originally enacted, was modeled after the French Cour de Cassation's 79 interpretation of French Civil Code section 1382.80 According to the Cour de Cassation, section 1382 provided recovery for "the damage, the whole damage and nothing but the damage." 8' 1 Originally, section 1915 of the Mexican Civil Code also provided for complete reparation of loss to the victim, regardless of 82 the nature of damage suffered. 83 Section 1915 originally provided for two methods of reparation. These were: (1) reparation by restitution, that is, restoration of the item lost (exact reparation), and (2) reparation by providing compen- sation equivalent in value to that which was lost. 84 Since the purpose of section 1915 was to return the victim to the status quo ante, exact reparation was the preferred method of reparation. Normally, the plaintiff would only receive monetary compensation if it was impossi- 85 ble to provide exact reparation. Section 1915, as amended in 1940, now contains two additional subdivisions. Today section 1915, subdivisions (2) and (3), provide: (2) When the damage is caused to persons and produces death, total permanent, partial permanent, total temporary or partial tem- porary incapacity, the amount of the indemnity shall be deter- mined according to the provisions established by the Federal Labor Law. To calculate the appropriate indemnity one shall take as the base four times the minimum daily salary, which is the highest in force in the region and shall be multiplied by the number of days indicated in the Federal Labor Laws for each of the incapacities mentioned. (3) Credits for indemnity when the victim is a wage-earner are

78. Id. § 1915. 79. R. ROJINA VILLEGAS, supra note 55, at 130. 80. See supra note 36. 81. R. TOULEMON & J. MOORE, supra note 62, at 116. 82. The original version of Section 1915 read as follows: "The reparation of damage shall consist in the restoration to the status existing prior to the damage and when this is not possi- ble, in the payment of damages and losses." R. ROJINA VILLEGAS, supra note 55, at 130. 83. Id. 84. Id. 85. A literal reading of this section as originally enacted allowed the Mexican courts to follow the lead of the French Cour de cassation and to order the repair of "the damage, the whole damage and nothing but the damage" without any distinction as to the type of injury suffered by the victim. R. ROJINA VILLEGAS, supra note 55, at 130 n.17. 1986] Moral Damages in Mexican Law

not transferable and shall be paid preferentially in a single pay- ment, except when otherwise agreed amongst the parties. The foregoing provisions shall be observed in the case of Article 2647 of 86 this Code. Subdivision (2), in particular, changed the previous theory of complete reparation. Today section 1915 provides for complete repa- ration only when the illicit act causes damage to "things. ' s7 When the injury is to persons, the amount of monetary recovery is limited to the provisions established by the Federal Labor Law.8 8 An example of the Federal Labor Law reads as follows: In case of death of the worker, the indemnification to the persons to which the preceding article refers shall be an amount equal to the sum of seven hundred and thirty-five days of wages, without deducting the indemnification received by the worker during the period in8 9which he was subject to the rules for temporary disability. This is why personal injury awards in the United States are often much higher than Mexican personal injury awards. Other factors contribute to the significant difference between United States and Mexican personal injury awards. First, the absence of a jury in the Mexican judicial system means that the judge alone will hear and decide all aspects of the case. Second, most countries which adhere to civil law principles, including Mexico, do not have compulsory insurance, such as mandatory car insurance. Therefore, there is no "deep pocket" from which to recover. In most cases, the defendant will bear the entire financial burden of the award. Third, punitive damages for tort liability are not permitted. Only a criminal law judge can award punitive damages in Mexico. 90

C. Mexican Moral Damages Most Mexican scholars agree with the civil law view that there are two types of damage: "material" damage, also referred to as "pat- rimonial" damage, and "moral" damage, also referred to as "extra- patrimonial" damage. However, one of Mexico's best known legal 86. Mexican Civil Code § 1915 (M. Gordon trans. 1980). 87. See supra text accompanying note 78. 88. Mexican Labor Law art. 502 (CCH) 227 (1974), quoted in Kozolchyk, Mexican Law of Damagesfor Automobile Accidents: Damages or Restitution?, 1 ARIZ. J. INT'L & COMP. L. 189, 203 (1982). 89. Id. 90. See infra text accompanying note 99. Loy. L.A. Int'l & Comp. L. J [Vol. 8:235

scholars, E. Gutierrez y Gonzalez, strongly believes that moral rights should be included as part of one's patrimony, rather than categorized as extra-patrimony. 9 - He therefore believes the Court should award recovery for moral damages as well as for material damages under 92 certain circumstances. Mexican Civil Code section 1916 specifically provides for recov- ery for moral damages: Independently of the damages and losses, the judge may grant in favor of the victim of an illegal act, or of his family if the victim dies, an equitable indemnity as a moral reparation to be paid by the person responsible for the act. Such indemnity cannot exceed one- third (1/3) of the amount of civil liability. The provisions of this article shall not be applied to the State in the case mentioned in 93 Article 1928. Section 1916 raises a number of important issues, such as: (1) whether section 1916 requires a finding of material damage before moral dam- ages recovery will be awarded; (2) whether moral damages recovery is available only upon proof of fault committed by the defendant; and (3) who is liable for moral damages recovery? These will be discussed separately.

1. Whether section 1916 requires proof of material damage before moral damages recovery will be awarded Most Mexican scholars agree that section 1916 is literally consis- tent with the civil law view that recovery for moral damage is recover- able only if there is proof of material damage. 94 However, most Mexican scholars also agree that section 1916 should be amended to allow moral damages recovery regardless of whether there is proof of 95 material damage. The Mexican courts seem to share this view. The landmark case ConstructoraCross, S.A. 96 dealt with the issue of whether the father of

91. E. GUTIERREZ Y GONZALEZ, supra note 57, at 642. 92. Id. 93. Mexican Civil Code § 1916 (M. Gordon trans. 1980). 94. M. BORIA SORIANO, supra note 58, at 428-30; E. GUTIERREZ Y GONZALEZ, supra note 55, at 651. 95. M. BORIA SORIANO, supra note 58, at 428-30. "It is only objectionable in our view, that the amount of the moral damage is limited to one-third of the material damage since this appears to state that there is necessarily a relationship between patrimonial and moral damage, which is completely inaccurate." R. BREBBIA, supra note 59, at 142 (translation by the author). 96. ConstructoraCross, S.A., 15 S/F 6a 4:290 (1958). Decisions of the Mexican Supreme 19861 Moral Damages in Mexican Law

a minor child killed by a truck driven by an employee of the defend- ant corporation was entitled to recover for the death of his son even though there was no proof of material damage. The defendant claimed that since the minor was not employed and the father had not been financially dependent upon him, there was no material damage and, therefore, the plaintiff could not recover anything. The Supreme Court of Mexico said that the theory that a father cannot receive reparation for the death of his minor child because the child did not contribute to the economic welfare of the family, is devoid of any legal justification and is repugnant to the most basic principles of justice. The greatest asset a father can have is the life of a child and its death results in an obvious damage, that goes beyond- because it has no limit-the notion of damage and loss employed by the law to refer to the responsibility of one of the parties for the breach of an agreed obligation. 97 The Court suggested that there should be recovery regardless of whether the parents suffered material damage of financial loss. How- ever, the Court did not go so far as to conclude that proof of material damage is not required for moral damage recovery. The Court con- strued the parents' loss of their son as material damage rather than as moral damage. Nevertheless, the parents were still unable to recover for their son's death as is explained in the next section. 98

2. Whether moral damages recovery is available only upon proof of "illicit" conduct committed by the defendant According to a literal reading of section 1916, the defendant's conduct must be illegal. Section 1916 states that "the judge may grant in favor of the victim of an illegal act. . . an equitable indem- nity as moral reparation." 99 An act is illicit or illegal if there is proof of fault. Fault exists when the wrongdoer has acted without right. The wrongdoer has ac- Court are reported in the Semanario Judicialde la Federacion, created in 1870 and the only authorized official publication of these reports. Decisions of the Federal Supreme Court are the only court decisions that are regularly published. See Butte, supra note 18, at 807 n.5. Professor Butte has created his own method of citing Mexican cases. This same method will be followed throughout this article: volume number, followed by epoch number, followed by part number, followed by page number. For example: 15 S/F 6a 4:290 means that the case is in Volume 15 of the Sixth Epoch of the Semanario Judicial, on page 290 of the Fourth Part of the volume. Id. 97. ConstructoraCross, S.A., 15 S/F 6a 4:290, 296 (translation by the author). 98. See infra text accompanying note 101. 99. Mexican Civil Code § 1916 (M. Gordon trans. 1980) (emphasis added). Loy. L.A. Int'l & Comp. L. J [Vol. 8:235

ted without right when his/her conduct is in violation of law or against good customs. In other words, that conduct is immoral or contra bonos mores. In ConstructoraCross, S.A. ,100 the Supreme Court of Mexico dis- agreed with the trial and appellate courts' decision allowing recovery for moral damages. The Court declared that moral damages recovery can only be recovered from the person responsible for the "illicit" act. 101 In other words, even if the Court in Constructora Cross, S.A. con- cluded that there was proof of material damage, the plaintiff could not recover for moral damages because the alleged cause of action was premised on Mexican Civil Code section 1913.102 This code section overlooks civil fault and presumes fault by imposing strict liability. Conversely, section 1910 requires proof of fault. 10 3 If the plaintiff had asserted a cause of action based on section 1910, he might have been awarded a moral damage recovery. Alternatively, a plaintiff could base his or her action on section 1913, which provides for "objective liability" for injury caused by use of a dangerous instrumentality. However, the Court will not award recovery for moral damages since the defendant's injurious conduct, consisting of the use of a dangerous instrumentality which under Mexican law includes the act of driving a car or flying a plane, nor- mally is lawful. Section 1913 relieves the plaintiff of the burden of proving fault because of the inherent danger of certain activities which the defend- ant undertakes knowing full well that he is risking the safety of others. In Constructora Cross, S.A., the Supreme Court of Mexico held: [S]ince in the present case there was no finding of any fault whatso- ever on the part of the defendant corporation, nor was the accident caused by mechanic [sic] defects of the truck, nor due to any other causes attributable to the said corporation, the order [of the lower court] directing the defendant corporation to pay moral damages is in violation of sections 1910 and 1916 of the Civil Code and, there- fore, the defendant is entitled to the constitutional protection it

100. ConstructoraCross, S.A., 15 S/F 6a 4:290, 299-300. 101. Id. 102. Mexican Civil Code § 1913 (M. Gordon trans. 1980). See supra text accompanying note 72. 103. Mexican Civil Code § 1910 (M. Gordon trans. 1980). See supra note 75. 1986] Moral Damages in Mexican Law 257

requests. 10 4 Mexican scholars have criticized the Court for this conclusion. These critics claim there are no grounds which justify requiring proof of illegal conduct in order to recover for moral damages while al- lowing recovery for material damages regardless of whether or not the defendant's conduct is legal or illegal. 105 Justice Garcia Rojas articulates this criticism in his dissent in ConstructoraCross, S.A. 10 6 He stated that the term "illegal conduct," as used in the Mexican Civil Code, was not intended to limit recovery to instances where there is proof of fault. 10 7 According to Justice Rojas, although the Mexican Civil Code occasionally refers to "negli- gent" and "intentional" conduct as "illegal," this does not necessarily mean that there must be proof of fault in order for there to be "illegal conduct."' 1 8 Justice Rojas defines "illegal conduct" as any "conduct done without right that causes damages or loss in someone's patri- mony, whether intentional, whether negligent, or without proof of either."' 0 9 Therefore, there is no need to determine whether the de- fendant's conduct is intentional or negligent. All that is required is a finding of damage. "[H]e who causes injury is acting illegally; it is a fundamental principle of the law not to injure others." 110 For example, in an action for wrongful death caused by an auto- mobile accident, the plaintiff cannot recover for moral damages be- cause under section 1913 driving an automobile is a dangerous

104. Constructora Cross, S.A., 15 S/F 6a 4:290, 300: Como en el caso concreto no se ha atribruido culpa de ningun genero a la sociedad demandada, ni el atropellamiento se produjo por defectos del camion materialista o por othas causas imputables a la propia sociedad, la condena a pagar el dano moral que le impuso la autoridad responsable viola los ariculos 1910 y 1916 del Codigo Civil por lo que por este concepto debe otorgarsele la protecion constitucional que solicita. Id. (translation in the text by the author). 105. E. GUTIERREZ Y GONZALEZ, supra note 55, at 651. 106. Constructora Cross, S.A., 15 S/F 6a 4:290, 303 (Garcia Rojas, J., dissenting). 107. Id. 108. Id. 109. Id. at 303. "Es acto ilicito todo dano que se causa sin derecho a un patrimonio, haya culpa, haya doo, o no los haya." Id. (translation in text by the author). 110. Id. at 305. "[Eli que produce un dano obra ilicitamente, es principio basico del der- echo: no danar a otro." Id. (translation in text by the author). This approach is similar to the one followed by the French courts. [D]amage must be assessed in its entirety, independently of the fault committed; it is only for the criminal judge to inflict a punishment. The judge in a civil proceeding must award the total reparation of the damage caused by the fault, even if this fault is minimal. R. TOULEMON & J. MOORE, supra note 62, at 131. 258 Loy. L.A. Intl & Comp. L. J. [Vol. 8:235

activity and fault is presumed. However, if the death is caused by a horse and buggy, there will be recovery for moral damages since such activity is not considered a dangerous activity. In the latter instance, recovery will be premised on section 1920 which does not presume fault. 1 In spite of Justice Rojas' strong dissenting opinion and scholars' criticism, the Supreme Court of Mexico continues to deny recovery for moral damages in actions based on section 1913 objective liability, as seen in the cases that follow. In Pensionarios Unidos del Suroeste de Jalisco, S.A. de C.V ,112 the plaintiff, spouse of the deceased victim, requested recovery for both material and moral damages from defendant corporation for the death of her husband. Plaintiff's husband was killed when an em- ployee of the defendant corporation, while driving a company truck, collided with the decedent's car. Plaintiff brought suit under section 1834 of the Civil Code of the State of Jalisco. At the time of suit, section 1834 was identical to section 1913 of the Mexican Civil 13 Code. The Supreme Court reversed the lower court's award to the plaintiff of recovery for moral damages. The Supreme Court's hold- ing was based on a literal reading of section 1913 (section 1834), the objective liability provision, and section 1916 (section 1837), the moral damages provision. The Court reiterated "that the cause of action founded on objective liability is independent from a finding of legality or illegality of the facts that give rise to it."14 Therefore, repa- ration for moral damages will only lie where plaintiff squarely bases his or her action on section 1910 and there is a finding of fault on the part of the defendant." 5 Although the plaintiff failed to expressly assert a cause of action founded on section 1910, and based her action entirely on section 1913, the Court's decision was suspect since the plaintiff provided evi- dence of the defendant's negligence." 6 In other words, the Court did not make an independent finding of negligence on the part of the driver (subjective liability under section 1910), although the plaintiff introduced such evidence. The Court denied recovery for moral dam-

111. ConstructoraCross, S.A., 15 S/F 6a 4:290, 303 (Garcia Rojas, J., dissenting). 112. PensionariosUnidos del Suroeste de Jalisco, S.A. de C. V., 41 S/F 7a 6:83 (1972). 113. Id.at 99. 114. Id.at 106. 115. Id. at 105. 116. Id. at 106. 1986] Moral Damages in Mexican Law 259

ages basing its decision solely upon section 1913 (objective liability), which does not require proof of fault. 117 In PensionariosUnidos del Suroeste de Jalisco S.A. de C.V , 18 the plaintiff provided evidence that defendant's truck was loaded with lumber protruding fifty centimeters from each side of the truck bed, thus preventing vehicles from passing it on the extremely narrow road. The protruding lumber violated section 105 of the Jalisco State Traffic Ordinance. In addition, there was evidence that the truck had stopped where the road curved, which also constituted a State Traffic Ordinance violation."t 9 Justice Jose Abitia Arazapalo stated in his dissent that the cause of action should be treated as based on both the objective liability theory of section 1834120 of the Civil Code of Jalisco and on Jalisco Civil Code section 1831,121 which provides for liability based on fault and permits moral damages recovery. 122 He argued there is no inconsistency or contradiction in asserting a cause of ac- tion based on the objective liability of section 1834 and simultane- ously asserting a section 1831 cause of action based on fault. "The coexistence of the moral damage that arises from an illicit act and objective liability, which, as is well known, is independent from a find- ing of fault on the part of the wrongdoer. . . do not necessarily con- tradict each other."' 123 The majority of the Court, however, did not elaborate on this point, nor did it mention the possibility of recovery based on fault (violation of statute).' 24 The Court might have decided in the plain- tiff's favor if the plaintiff had founded her cause of action on section 1910 and proved fault based on the Jalisco Traffic Ordinance violations. 125 117. Id. 118. Id. 119. Id. at 94. 120. Id. at 97. 121. Id. 122. Id. at 106 (Jose Abitia Arazapalo, J., dissenting). 123. Id. 124. This type of negligence is similar to the common law concept of negligence per se. Prosser describes it as follows: When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate. Within the limits of municipal authority, the same may be true of ordinances. W. PROSSER, LAW OF TORTS 190 (4th ed. 1974). 125. In Wings, S.A. y Jesus Garcia Moreno, 75 S/F 7a 7:16 (1983), a case reported in the latest Semanario Judicialde la Federacion,supra note 96, the Mexican Supreme Court, follow- ing the reasoning of the dissent in PensionariosUnidos del Suroeste de Jalisco, S.A. de C. V., 41 260 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

In its decision, the Court did not mention that the truck driver, either in his individual or employee capacity, should be held liable based on "fault" and should compensate the plaintiff for moral dam- ages. This may be due to the fact that the truck driver committed a 12 6 hit and run offense and could not be found at the time of the trial.

3. Liability for moral damages Mexican Civil Code section 1916127 states that the judge may grant moral damages "recovery to the victim of an illegal act and 128 such reparation shall be paid by the person responsiblefor the act.' Therefore, only when there is a finding of illegal conduct or fault will the judge consider awarding moral damages recovery. A majority of civil tort cases involve actions based on section 1913 objective liability in which the Court has consistently denied moral damages recovery because objective liability does not require proof of illegal conduct. The Court articulates its narrow reading of section 1916 in Con- structora Cross, S.A .,129 Pensionarios Unidos del Suroeste de Jalisco, S.A. de C. V 130 and in Octavio Gonzalez.' In Octavio Gonzalez, one of the defendants violated a traffic ordi- nance and hit the co-defendant's station wagon, which in turn injured

S/F 7a 6:83, stated that liability under Sections 1910 and 1913 of the Mexican Civil Code are not mutually exclusive. In Wings, S.A. y Jesus Garcia Moreno the court in deciding an action for wrongful death and personal injuries against the defendant corporation and its employee driver, stated: Subjective and objective liability, provided by Section 1910 and Section 1913 of the Civil Code for the Federal District, are not mutually exclusive and can co-exist since a person who makes use of mechanisms, instruments, apparatus or substances which are dangerous in themselves, by reason of their explosive or inflammable nature, even if not acting unlawfully, can in addition, perform illicit acts that can cause damage to another person. Therefore, the plaintiff in a suit for civil tort liability can validly base his cause of action on both these sections, so that the objection that they contradict each other will not hold. Wings, S.A. y Jesus GarciaMoreno, at 55-56 (translation by the author). Here, plaintiff had based her action on both these sections and the defendant driver had been sentenced by the criminal judge. However, recovery for moral damages was not at issue. 126. PensionariosUnidos del Suroeste de Jalisco S.A., at 87. 127. Mexican Civil Code § 1916 (M. Gordon trans. 1980) (emphasis added). 128. Independently of the damages and losses, the judge may grant in favor of the victim of an illegal act, or of his family if the victim dies, an equitable indemnity as a moral reparation to be paid by the person responsible for the act. Such indemnity cannot exceed one-third of the amount of the civil liability. The provisions of this article shall not be applied to the State in the case mentioned in article 1928. Id. 129. See text accompanying supra note 96-98. 130. See text accompanying supra note 112-15. 131. Octavio Gonzalez, 15 S/F 6a 20:197 (1958). 1986] Moral Damages in Mexican Law

the plaintiff. Both defendants were found jointly liable under the ob- jective liability section 1810 of the Code of Nuevo Leon, 132 which is identical to section 1913 of the Mexican Civil Code. 133 The driver who violated the traffic ordinance and hit the co-defendant's station wagon, was ordered to pay moral damages recovery to the plaintiff. The Court concluded that the co-defendant (whose station wagon was hit) was not at fault because he did not create any risk of harm to the plaintiff. The Court stated: Section 1810 of the Local Civil Code, identical to section 1913 of the Code of the Federal District, provides for objective liability for the use of mechanisms, instruments, apparatus or substances po- tentially dangerous, independently of whether damage is caused il- legally, whether intentionally or negligently; that is, with respect to the person who suffers the injury, the responsible parties are those who cause it, for the only reason of having created the risk, and therefore, are jointly liable for the damage caused, pursuant to Sec- tion 1814. The determination of which of the responsible actors was the direct or immediate cause of the happening of the risk is totally irrelevant to the victim and should be a matter for the wrongdoers to deal between themselves.' 34 In Quirina de Aquilar Vda de Nino135 the Supreme Court once again denied moral damages recovery. There the plaintiff sued a bus company (a corporation) and its insurer. The company owned the bus in which plaintiff's husband had been a passenger and it had em- ployed the driver of the bus. While maneuvering the bus down a curvy road, the driver crashed into the center divider. Both the driver and the plaintiff's husband died as a result. 36 The defendant corporation and its insurance company were both found liable only for material damages because the suit was based on section 1913. It is unclear from the opinion whether if the bus driver had lived, he would have been liable for moral damages, since evi- dence suggested the driver was at fault and lacked adequate train- ing. 137 The Court stated: Moral damages may only be recovered from the person who is lia- ble for the illicit act as provided by section 1910 of the same code, a

132. Id. at 200. 133. Id. 134. Id. (translation by the author). 135. Quirina de Aguilar Vda de Nino, 2 S/F 6a 4:158 (1957). 136. Id. at 159-60. 137. Id. at 164. Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

liability that is different from the object one prescribed by section 1913. In the case at bar, only the objective liability of the defendant was proved by the use of a potentially dangerous mechanism, but in the performance of a lawful activity as is the carriage of persons. In order to subject the defendant to the payment of moral damages it is indispensable to prove that the wrongful death of Jose Nino Ruiz was due to an intentional act of the defendant company or to a negligent act of the same, as for example, that the accident oc- 38 curred due to the lack of maintenance of the vehicle.' The question remains whether the Court would have affirmed the award of moral damages if the plaintiff had proved defendant at fault for selecting an incompetent driver. There is no indication that such an attempt was made in the case.13 9 In his strong dissenting opinion in Quirina de Aguilar Vda de Nino,140 Justice Garcia Rojas points out that the Court should not 41 focus on whether there was an illicit act as defined by section 1910.1 Section 1910 broadly defines an illicit act as not only an act which is against the law or good morals, but also includes any act which causes physical injury. In addition, he stated that there is sufficient showing of lack of training on the part of the driver and of the driver's fault. Justice Rojas, therefore, agrees with the lower court's order directing the defendant corporation to pay the plaintiff $1,600.00 (Mexican pe- 1 42 sos) as moral reparation.

D. Moral Damages Versus Punitive Damages Recovery As a result of the prerequisite proof of fault or illegal conduct for moral damages recovery, some scholars believe that moral damages recovery is the equivalent of punitive damages in American law. 14 3 In

138. Id. (translation by the author). 139. The plaintiff could have also pursued an action under Section 1924 which creates a rebuttable presumption of fault or negligence in the selection or supervision of one's employees who, while acting within the scope of their employment, injure others. Section 1924 provides a theory of recovery which is separate and distinct from a 1913 cause of action which involves use of a dangerous instrumentality. Section 1924 provides: "Managers and owners of mercan- tile establishments are liable for the damages caused by their workmen or servants in the exer- cise of their duties. This liability ceases if they show that in the commission of the damage no fault or negligence can be imputed to them." Mexican Civil Code § 1924 (M. Gordon trans. 1980). See Butte, supra note 18, at 813. 140. Quiriniade Aguilar Vda de Nino, 2 S/F 6a 4:158 (1957). 141. Id. at 165-66 (Garcia Rojas, J., dissenting). 142. Id. See also Constructora Cross, S.A., 15 S/F 6a 4:290, 303-05 (Garcia Rojas, J., dissenting). 143. "Mexico's Supreme Court has drawn a sharp line between the entitlement to morals, 1986] Moral Damages in Mexican Law 263

actuality, moral damages recovery has nothing to do with the com- mon law notion of punitive damages. Proof of fault (willful or negli- gent conduct) is required in order to establish that the act was illicit, not for the purpose of establishing motivation or malice. Moral dam- ages recovery is not awarded for the purpose of punishing the wrong- doer, although it does ultimately result in decreasing the wrongdoer's assets. The purpose of moral damages recovery in civil law tort ac- tions is to compensate the victim. 144 Unlike the distinction in tort liability between common law puni- tive damages and civil law moral damages, in Mexican criminal law, moral damage awards are much like the common law concept of pu- nitive damages. Therefore under Mexican law, the court's approach to resolving criminal disputes differs from its approach to resolving civil tort disputes. In civil tort proceedings the court focuses on com- pensating the victim. Whereas, in criminal proceedings, the court's primary function is to punish the wrongdoer. This fundamental dis- tinction between criminal and civil proceedings is derived from French law. 145 It is only for the criminal judge to inflict a punishment. The judge in a civil proceeding must award total reparation of the damage caused by the illegal conduct [or fault] even if this fault is mini- mal .... The function of the criminal judge is to order sanctions; that of the civil judge is to make reparation. . . . In order to in- sure complete reparation, the [civil] judge must not take into con- sideration those 46circumstances that may increase or decrease the degree of fault. 1 The Mexican scholar Rafael Rojina Villegas points out: In the criminal proceeding, moral damages will be awarded even without proof of material damage, since the former is not deter- mined in function of the latter as unjustly required by section 1916 of the civil code. The amount of both moral and material damages

or punitive damages in actions based upon 'illicit' acts, i.e. willful or negligent torts and those based upon the strict liability of dangerous mechanisms or instrumentalities." Kozolchyk, supra note 88, at 206. Moral damages understood as punitive damages is also found in S. BAYITCH & J. SIQUEIROS, CONFLICT OF LAWS: MEXICO AND THE UNITED STATES 149 (1968). 144. M. BORJA SORIANO, supra note 58, at 431. 145. Although Roman private law appears to have included a notion of punitive damages in its concept of penal action, the drafters of the French Civil Code did not follow this ap- proach. They left it up to the criminal judge to impose any sanction as punishment on the wrongdoer as opposed to compensation for the victim. 146. R. TOULEMON & J. MOORE, supra note 62, at 131, 142. 264 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

is left to the judge's discretion and the financial ability of the 147 defendant." The erroneous equating of moral damage recovery with punitive damages in tort actions may be a cause of a confusion with Mexico's Penal Code. The Penal Code specifically refers to moral damages when discussing punishment to the wrongdoer.1 48 However, moral damages in the Civil Code are not punitive. They are limited to dam- ages awarded as satisfaction to the victim.149

IV. RELATIONSHIP BETWEEN MORAL DAMAGES RECOVERY IN MEXICO AND COMMON LAW DAMAGES FOR EMOTIONAL DISTRESS

A. Comparison Between Common Law Emotional Distress Recovery and Civil Law "Affective Patrimony" Recovery The concept of moral damages encompasses a broad range of in- juries. It includes such injuries as harm to one's honor or reputation or loss of one's personal freedom, which would normally constitute common law defamation and false imprisonment, respectively. The term "moral damages" also includes loss of, or interference with, a variety of inherent rights; for example, the right to good health, the right to the pursuit of happiness, and the right to be free from interference with one's personal feelings and intellect.15 0 Inter- ference with these interests involves injuries similar to those which form the basis of common law emotional distress actions. This type of injury, detrimentally affecting the plaintiffs feelings, is referred to in civil law as "affective patrimony" damage. Moral damages recov- ery is most frequently awarded for "affective patrimony" damage. Mexican Civil Code section 1916 specifically provides for such

147. R. ROJINA VILLEGAS, supra note 55, at 129. See also R. BREBBIA, supra note 59, at 142. "The amount of reparation shall be determined by the judges in light of the damage that must be repaired according to the evidence presented at trial." Codigo Penal ParaEl Distrito Federal (Penal Code for the Federal District) § 31 (amended 1984). 148. Section 30 of the Mexican Penal Code for the Federal District provides in part: The reparation of injury includes: 1. The restitution of the thing obtained because of the offense, and if this is not possible, then the value of the same, and 2. Repair of the material and moral damages caused by the injury. 149. "Satisfaction is distinct from punishment since it concerns the injured person, not the wrongdoer. While punishment inflicts a wound, satisfaction is intended to heal a wound." Stroll, Penal Purposes in the Law of Torts, 18 AM. J. COMP. L. 3, 6 (1970). 150. M. BOIRA SORIANO, supra note 58, at 427-28. 1986] Moral Damages in Mexican Law

recovery. 15' Although there is no equivalent common law term for "affective patrimony" damage, the common law concept of infliction of emo- tional distress comes the closest to the Mexican law notion of "affec- tive patrimony."1 52 As previously mentioned, there are no distinct "torts" in civil law. There is only the Law of Civil Tort. 153 There- fore, it is unnecessary in Mexican civil law to establish whether the conduct causing "affective patrimony" damage was negligent or in- tentional. However, section 1916154 implies that there must be mate- rial damage in order to recover for affective patrimony damage, just as in many common law jurisdictions the plaintiff must establish physical injury before he can recover for infliction of emotional dis- tress. Section 1916 states that recovery for moral damage (which in- cludes affective patrimony damage) cannot exceed one-third (1/3) of the material damage. 155 Thus, absence of material damage precludes moral damage recovery. It is unclear why this limitation of moral damages recovery in section 1916 was enacted. Mexican legislators may have intended to adopt the view of numerous scholars that moral damages recovery 156 should not be awarded unless there is proof of material damage. Also, they may have wanted to prevent flagrant abuse and unfair sub- jectivity in awarding moral damages recovery. 57 Alternatively, these legislators simply may have wanted to provide the judge with defini- tive, somewhat objective guidelines of determining the amount of moral damages recovery to be awarded. There seems to be no indication in the treatises as to the exact motivation for the wording of section 1916. However, both Mexican scholars Rafael Rojina Villegas1 58 and Ernesto Gutierrez y Gonza- lez 1 59 believe that the Mexican legislature intended to adopt what is called a "mixed theory" award for moral damages recovery which

151. See supra note 77. 152. "Moral damages," which include the things we would call pain and suffering, mental anguish, loss of consortium and so on may be given to the victim, or to his family if he dies, only if he is the victim of an illicit act, which the plaintiff must prove and which brings the case under article 1910 instead of 1913. Butte, supra note 18, at 814. 153. A. VON MEHREN & J. GORDLEY, supra note 33, at 577 n.44. 154. See supra note 77. 155. Mexican Civil Code § 1916 (M. Gordon trans. 1980). 156. See supra text accompanying note 94. 157. See supra text accompanying note 62. 158. R. ROJINA VILLEGAS, supra note 55, at 137. 159. E. GUTIERREZ Y GONZALEZ, supra note 55, at 651. 266 Loy. LA. Int'l & Comp. L J. [Vol. 8:235

allows an award for moral damage recovery, but makes such award contingent upon a finding of material damage. 6° Mexican scholar Manuel Borja Soriano states that "with respect to the second part of Article 1916 of our Civil Code, it must be mentioned that there cannot be an award of moral damages without a prior finding of material damage."161 Consistent application of the "mixed theory" is hindered by the wording of section 1916 and the fact that civil law judges are bound to strict rules of interpretation of the codes.' 62 Judges are forbidden from assuming the role of a legislator. 63 Therefore, normally, when the meaning of a code is clear on its face, the literal meaning of the code shall not be disregarded even though the spirit and intent of the code arguably contradict the literal meaning of the code. 164 Since sec- tion 1916 does not specifically provide for an independent cause of action for intentional or negligent infliction of moral damages, courts are unlikely to allow moral damages recovery independent of material damage. In order for the courts to consistently grant recovery for moral damages, section 1916 must be amended such that: (1) the award of moral damage recovery is mandatory and not permissive as it is now; (2) moral damages recovery is available regardless of the legality of the wrongdoer's conduct; (3) the award for moral damages recovery does not require a prior finding of material damage; and (4) there be no arbitrary limitation upon recovery to one-third of the material 65 damage. B. Mexican Law Actions for Intentional and Negligent Infliction of Emotional Distress This section of the Article will discuss possible outcomes in Mex-

160. Id. at 647. 161. "En orden a la segunda parte del articulo 1916 de nuestro codigo Civil, hay que ob- servar que no prodra haber indemnizacion de un dano moral si no acompanaa un dano mate- ral". M. BORJA SORIANO, supra note 58, at 432 (emphasis added) (translation in text by author). 162. See supra note 31 and accompanying text. 163. See supra note 18 and accompanying text. 164. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See also R. SCHLESINGER, supra note 21, at 514-15. 165. However, it is interesting to note that California has adopted this idea of a cap on pain and suffering damages awards in medical malpractice cases. The ceiling placed by the medical Injury Compensation Act of 1975 is $250,000. See Fine v. Permanents Medical Group, 38 Cal. 3d 137 (1985). 1986] Moral Damages in Mexican Law

ican courts of various fact situations which under California law would constitute actions for negligent infliction of emotional distress. In Accounts Adjustment Bureau v. Cooperman,166 decided July 22, 1984, the California Court of Appeals held that parents could as- sert a cause of action for negligent infliction of emotional distress against a psychologist who allegedly misdiagnosed their son's learning disability, if the parents established the serious nature of the misdiag- nosis. 16 7 In Cooperman, the parents took their son to a psychologist for diagnosis and treatment of his learning problems. The psycholo- gist misdiagnosed the child as suffering from DSMII non-psychotic organic brain syndrome 309.9.168 The parents argued that a proper diagnosis would have revealed that their son did not have any sort of psychological problem, but was merely going through a typical child- hood readjustment phase. California courts follow the requirements set forth in Dillon v. Legg169 in situations of non-impact injury 170 which is the situation created by the facts of Cooperman. In these cases, in order to deter- mine whether a plaintiff is entitled to protection from negligent inflic- tion of emotional distress the foreseeability of risk is the critical inquiry. 17' In Molien v. Kaiser Foundation Hospitals,'72 the California Supreme Court refined Dillon v. Legg for application of the non-im- pact type case. 73 In Molien, the court defined Mr. Molien as a "di- rect victim' ' 174 of the defendant's negligence, although he was not the primary victim of the diagnosis. By defining the plaintiff as a "direct victim," the court established that a duty was owed to the plaintiff without showing that the plaintiff was foreseeable within the bounds

166. Accounts Adjustment Bureau v. Cooperman, 158 Cal. App. 3d 844, 204 Cal. Rptr. 881 (1984). 167. Id. 168. Id. at 848. 169. 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). 170. The factors delineated in Dillon with respect to foreseeability of risk are: (1) proxim- ity of the bystander to the scene of the accident; (2) sensory and contemporary observation by the bystander of the accident; and (3) closeness of the relationship between the victim and the bystander. Id. at 740-41. 171. Dillon, 68 Cal. 2d at 741. 172. 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980). 173. The defendant physicians in Molien negligently misdiagnosed Mrs. Molien as having syphilis. Mrs. Molien was advised to inform her husband of the diagnosis. The misdiagnosis crated suspicion and tension in the marriage, eventually resulting in dissolution of marriage. Mr. Molien sought damages for negligent infliction of emotional distress. 174. Molien, 27 Cal. 3d at 922-23. 268 Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

set by the Dillon factors.17 5 The court also noted the difficulty in drawing a line between physiological and psychological injury, and concluded: "the attempted distinctions between physical and psycho- logical injury merely clouds the issue. The essential question is one of proof; whether the plaintiff has suffered a serious and compensable injury should not turn on this artificial and often arbitrary classifica- 176 tion scheme."' Molien held that physical injury is not required for recovery for negligent infliction of emotional distress as long as there is some "guarantee of genuiness"' 77 found in the circumstances of the case. Accordingly, Molien mandates that courts now leave to the jury ques- tions of whether a plaintiff's claim is genuine and whether a defend- 78 ant's conduct caused the plaintiff serious emotional distress.1 Under Mexican law the analysis would be different. Fundamen- tal civil law concepts help explain how a Mexican court would decide the Cooperman case. The codes, in particular the Civil Code, being the main sources of law, must be addressed at the beginning of any analysis of a particular fact situation. 79 These codes are necessarily general to encompass a broad range of circumstances. 80° The judge must interpret these general statutes and by a process of deduction apply the general law to the specific fact situation before him/her.' 8 ' The specific sections of the Mexican Civil Code which apply in the Cooperman case are sections 1910, 1915 and 1916.182 These stat- utes pertain to tort liability damages and moral damage recovery. Even though these statutes might not cover a particular fact situation, section 18 of the Preliminary Provisions of the Civil Code states: "[tihe silence, obscurity or insufficiency of the law do not authorize the judges or courts to refrain from deciding a controversy."'' 8 3 In addition, section 19 of the same Preliminary Provisions states: "Ju- ridical controversies of a civil nature shall be decided in accordance with the letter of the law or its juridical interpretation. In the absence of a law, they shall be decided in accordance with general legal princi-

175. Id. 176. Id. at 929-30. 177. Id. at 930. 178. Id. 179. See supra text accompanying notes 11-24. 180. Id. 181. Id. 182. See supra text accompanying notes 67, 72 and 93. 183. Mexican Civil Code § 18 (M. Gordon trans. 1980). 19861 Moral Damages in Mexican Law

ples." 1 This latter section is frequently referred to by courts review- 84

ing lower court decisions because the party appealing the lower court decision usually argues that the lower court erred in its interpretation of the codes. 8 5 Section 1910 provides for subjective liability by saying that "he who acting illegally or against good customs causes damage to another is obliged to repair it .... ,"186 As previously mentioned, there are no independent torts in Mexican law. There is only a law of tort.'8 7 Since there is no independent cause of action for either inten- tional or negligent infliction of emotional distress, the only significant issue is whether the victim suffered injury due to the "fault" of the wrongdoer. As in California, to recover for negligence under Mexican Civil Code section 1910, the parents of the misdiagnosed child must prove actual damages to the child and/or parents. 8 8 This is, of course, in addition to establishing duty, breach, and causation. In Cooperman, the child could allege that as a proximate cause of the negligent diag- nosis by the psychologist, the child will be prevented from procuring appropriate life and medical insurance and will also be precluded from pursuing certain occupations in the future. The child's moral damages, arguably, would consist of any detrimental impact caused by the misdiagnosis on the child's ability to fully enjoy a normal

184. Mexican Civil Code § 19 (M. Gordon trans. 1980). 185. This review is normally available by filing a "writ ofamparo." Amparo is a procedure directed at challenging certain acts performed by the authorities in violation of rights recog- nized by the Constitution of Mexico for the protection of nationals and foreigners. It is also directed to the maintenance of the respect for legality by means of the guarantee of the exact and accurate application of the law. During the 113 years which have elapsed since it was incorporated in article 102 of the Constitution of 1857, amparo has evolved into a highly com- plex and, in some respects, peculiarly Mexican institution performing three distinct functions: (1) the defense of the civil liberties enumerated in the first twenty-nine articles of the Constitu- tion; (2) the determination of the constitutionality of federal and state legislation; and (3) cau- sation. R. BAKER, JUDICIAL REVIEW IN MEXICO: A STUDY OF THE AMPARO SUIT 267 (1971). In the words of C. Schwartz: The Amparo operates formally to protect the individual and social rights guaranteed by the first twenty-nine articles of the Mexican Constitution, the 'Bill of Rights.' But because of modem statutory and judicial interpretation of articles fourteen and six- teen of the constitution, the writ may extend to violations of other constitutional limits on governmental activity as well. Article fourteen permits district courts to enjoin officials who fail to follow essential formalities of procedure and statutes issued prior to the controversy. Article sixteen requires officials to demonstrate the compe- tency of their authority and the legal basis and justification for the action taken. Schwartz, Rights and Remedies in the FederalDistrict Courts of Mexico and the United States, 4 HASTINGS CONST. L.Q. 67, 72 (1977). 186. See supra text accompanying note 67. 187. See supra text accompanying note 34. 188. See supra text accompanying notes 67-69. Loy. L.A. Intl & Comp. L. J. [Vol. 8:235

life. 189 However, in order for the parents to recover damages, most likely a finding of material damage to the parents would be a prerequisite. 190 In contrast to California case law, Mexican courts do not distin- guish between physical and non-physical injury.1 9 1 Therefore, proof of foreseeability of harm to the plaintiff, which is required in Califor- nia courts in order to establish that the defendant owed the plaintiff a duty of care, would not be required in a case like Cooperman in Mexi- can courts. Additionally, since the prerequisite factors set forth in Dillon 192 are not required in Mexican law, lawsuits are arguably more prone to fraudulent claims. One way Mexican courts can guard against fraud, abuse and unfairness is in limiting the award for the moral damages recovery. Section 1916 limits these awards for moral 93 damages to one-third of the award for material damage.' Another way the Mexican courts guard against fraudulent or abusive claims is to only award moral damages recovery "in favor of the victim of an illegal act, or of his family if the victim dies. . .."194 Unless the victim dies, section 1916 clearly only allows the victim of an illegal act to recover moral damages. Therefore, only the child in Cooperman could recover moral damages under section 1916. Never- theless, as the California Court of Appeals points out in Cooperman, it is difficult to envision a two-year old child suffering from emotional distress caused by the misdiagnosis of a psychologist. The parents are the ones who are more likely to suffer emotional distress from the misdiagnosis of their child.' 95 Even if the Mexican court concludes that the child's difficulty in pursuing certain types of occupations and obtaining medical and life insurance constitutes moral damage to the parents, the court still might not award the parents moral damages recovery. Section 1916

189. However, the broad interpretation given by the Supreme Court of Mexico to the term "patrimonial damage" in ConstructoraCross, S.A., 15 S/F 6a 4:290, may indicate a willingness to allow recovery for damages even if under the label of "patrimonial" (material) instead of extra-patrimonial (moral). 190. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying note 93. 191. Instead, Section 1916 of the Mexican Civil Code seems to require a prior finding of material damage. See supra text accompanying note 93. 192. See supra note 170. 193. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying note 93. 194. Id. 195. Cooperman, 158 Cal. App. 3d 844 (1984). 1986] Moral Damages in Mexican Law

does not specifically provide that parents (nonvictims) can recover moral damages for harm suffered by their child.196 However, section 19 of the Preliminary Provisions of the Mexican Civil Code specifi- cally states that the judge must decide judicial controversies "in ac- cordance with the letter of the law or its juridical interpretation."'1 97 This means the court must consider whether awarding moral damages recovery to the parents would result in reversal by the Supreme Court of Mexico due to such award constituting a mistake of law or misin- terpretation of the law. In a civil law country such as Mexico, a judge would be accused of usurping legislative functions were he or she to extend the award of moral damages recovery to the parents under the facts of Cooperman. The only way the parents could recover for moral damages, other than by amending section 1916, is for the court to conclude that sec- tion 1916 is inapplicable. There would then, arguably, be a gap or lacuna 198 in the law codes and the court could award moral damages recovery to the parents pursuant to section 19 of the Preliminary Title which provides that in the "absence of law," the court may decide a case "inaccordance with general legal principles."'' 99 In order to de- termine what are the applicable relevant "general legal principles, ' ' 200 the court will look to the writings of both Mexican and civil law scholars. It will also, usually, consider the decisions of the highest courts of Mexico and other civil law countries; in particular, the French Cour de Cassation. If Molien2°l had been decided by a Mexican court pursuant to Mexican law, the plaintiffs husband probably would not recover moral damages compensation from the doctors who negligently mis- diagnosed his wife as having syphilis, for the same reason the parents in Cooperman would not be able to recover for moral damages. The

196. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying note 93. 197. See supra text accompanying note 184 (emphasis added). 198. See supra text accompanying note 19. 199. Id. 200. There is disagreement as to the meaning of "general principles of law" in the different codes. During the 19th Century, (when codification began) it was believed that these princi- ples derived only from positive norms of a given national system, thus sharply differentiating the "general principles" from natural law. In recent years, "general principles of law," are found in the enacted law and also outside of it. See R. SCHLESINGER, supra note 21, at 602-03. See also R. DAVID & J. BRIELEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY 114-18 (1968). 201. 27 Cal. 3d 916. Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

delegation by the California Supreme Court to the trier of fact of the duty to determine the genuiness of a claim and whether there is relia- ble proof of serious injury20 2 cannot be accomplished under Mexican law since there is no jury. In Slaughter v. Legal Process and Courier Service 20 3 a process server improperly served the plaintiff by merely dropping a copy of a complaint in the plaintiff's mailbox while the plaintiff was away on vacation. The process server then signed a sworn affidavit of personal service on plaintiff Slaughter. Based upon this affidavit, a default judgment was entered against the plaintiff. In an action by the tenant against Legal Process and others alleging, inter alia, intentional and negligent infliction of emotional distress, the California Court of Ap- peals denied defendant's summary judgment motion only on the issue 2 °4 of negligent infliction of emotional distress. If Slaughter had been decided by a Mexican court under Mexi- can law, the Mexican court very likely would have awarded to the plaintiff moral damages. The court would reason that the plaintiff was the victim of the defendant's wrongful conduct and suffered ma- terial damage (eviction) as a result of the improper service of process. The plaintiff in Slaughtermight also possibly recover moral damages compensation from the defendant based on the civil law theory of abuse of right. 20 5 According to this theory, conduct which is per se lawful may20 6 become illegal and therefore constitute a civil tort if the conduct constitutes an abuse of right, which in turn constitutes "fault. ' 20 7 If there is "fault" or an "illicit act," the court can award moral damages recovery. However, moral damages recovery based on this reasoning has not yet been argued before the Mexican courts. This is strange since section 1912 of the Civil Code expressly provides

202. The court in Molien stated that in emotional distress cases when proof of mental distress is not of a medically significant nature, "the jurors are best situated to determine whether and to what extent the defendant's conduct caused emotional distress, by referring to their own experience." 27 Cal. 3d at 930. 203. 162 Cal. App. 3d 1236, 209 Cal. Rptr. 189 (1984). 204. Id. at 1251. 205. For a good understanding of the civilian notion of abuse of right, see Gutteridge, Abuse of Rights, 5 CAMBRIDGE L.J. 22 (1933). 206. That is, the owner of a house erected a tall dummy chimney on his roof for the sole purpose of annoying a neighbor by depriving him of the access of light to certain of his rooms. Although this owner was doing something that he had an absolute right to do (lawful per se), the French Cour de cassation held the act to be wrongful as an abuse of right. Gutteridge, supra note 205, at 32. 207. PLANIOL, supra note 51, at 477. 1986] Moral Damages in Mexican Law 273

for a cause of action for abuse of right. 20 8 The abuse of rights theory of recovery for moral damages might also be used in instances involving section 1913 strict liability. 20 9 As has been explained, 2 10 this section does away with the requirement of fault, making the legality or illegality of defendant's conduct irrele- vant as long as it is dangerous, and, thereby, precluding moral dam- ages recovery. However, since a finding of abuse of right carries with it the element of fault (whether intentional or negligent) an argument can be made in favor of a moral damages award even under a strict 2 liability theory as provided by section 1913. 11 Finally, the fact situation described at the outset of this Article should be examined. A widow of a California resident has a cause of action against a Mexican airline for the wrongful death of her hus- band who was seriously injured while vacationing in a Mexican re- sort. The outrageous conduct of the airline in refusing to fly the injured man to Los Angeles raises the possibility of a moral damage award. The plaintiff could base her action on section 1913212 (objective liability) since an airline, like an automobile, is considered a danger- ous instrumentality. Fault or negligence by the airline will be pre- sumed and the court will order the airline to pay damages. However, the widow will not be able to receive an additional amount as recov- ery for moral damages. If, on the other hand, the plaintiff bases her cause of action on section 1910213 (subjective liability) it is very likely that she will be able to prove illegal conduct by the airline on the facts mentioned. This is also one of those few instances in which a cause of action for immoral conduct, or contra bonos mores, may be successful, especially if the plaintiff manages to prove monopoly on the part of

208. "When in the exercise of a right, damage is caused to another, there is an obligation to indemnify such damage, if it is proved that the right was exercised merely for the purpose of causing the damage, without profit to the owner of the right." Mexican Civil Code § 1912 (M. Gordon trans. 1980). 209. See supra text accompanying note 72. 210. See supra text accompanying notes 103-04. 211. See supra text accompanying note 72. This appears to be a novel approach to the problem in strict liability actions. Mexican scholars have not discussed this possibility. Tradi- tionally the theory of abuse of rights was confined to intentional and malicious acts that caused damage without benefit to the actor. Only recently has this theory been extended to negligent abuse of a right. See Bolgar, Abuse of Rights in France, Germanyand Switzerland: A Survey of a Recent Chapter in Legal Doctrine, 35 LA. L. REV. 1016, 1020 (1975). 212. See supra text accompanying note 72. 213. See supra text accompanying note 67. Loy. L.A. Int'l & Comp. L. J. [Vol. 8:235

the airline.2 1 4 Assuming that causation is not at issue, there will be a finding of fault and very likely the court will award her recovery for moral damages. An analogy to the reasoning employed by the Supreme Court of Mexico in Constructora Cross, S.A., 21 5 demon- strates that plaintiff suffered "material damage" by the loss of her husband. In that case, the Court discussed what the death of a minor son meant to a father even though the son did not as yet have an income. Therefore, whether or not plaintiff depended on her deceased husband for support is irrelevant. 216 The airline would be "the person responsible for the act" under the theory of respondeatsuperior as provided by section 1924 of the Mexican Civil Code. 21 7 If the victim dies, the widow would qualify as family 218 entitled to an equitable indemnity as moral reparation.

V. CONCLUSION

Tort liability in civil law countries generally, and in Mexico in particular, developed from historical and legal concepts different from those of the Anglo-American tradition. The characterization of this discipline as the "law of tort" in opposition to that of the "law of torts" leads to sharp conceptual differences in the approach to tort liability in civil law versus common law. The emphasis on liability based on fault in contrast to strict liability also accounts for some of the conceptual differences between the two legal systems. This liabil- ity based on fault does not distinguish conceptually between inten- tional and negligent conduct: either one will trigger fault or illegal conduct under the system. This approach is totally different from a common law analysis with respect to a cause of action for intentional tort and the analysis that is required in dealing with a cause of action based on negligence. Thus, different results as to liability and damage awards may be easier to understand. The lack of juries, the unsophisticated insurance laws and limitations in the amount of the awards contained in the statutes

214. See supra text accompanying note 18. 215. See supra text accompanying note 96. 216. See supra text accompanying note 97. 217. "Managers and owners of mercantile establishments are liable for damages caused by their workmen or servants in the exercise of their duties. This liability ceases if they show that in the commission of the damage no fault or negligence can be imputed to them." Mexican Civil Code § 1924 (M. Gordon trans. 1980). 218. Mexican Civil Code § 1916 (M. Gordon trans. 1980). See supra text accompanying note 97. 1986] Moral Damages in Mexican Law

also explain differences in the amount of damages awarded. Addi- tionally, the strict concept of separation of powers in Mexico that pre- vents a judge from creating law hampers the ability of the judges to decide novel issues in areas like negligent infliction of emotional distress. With respect to moral damages, the clearly marked role of the judge in a civil proceding as that of ordering damages to provide satis- faction to the victim, in contrast to the role of the judge in a criminal proceeding, who orders damages as punishment to the wrongdoer, ini- tially explains the absence of punitive damages in tort liability. This difference in roles between the civil and criminal judges in turn results from the Roman distinction between public law and pri- vate law. This division of the law is also expressed in the strict con- cept of separation of powers that is followed in Mexico and most civil law countries. The statutory scheme that places a limit to the amount of moral damage and requires a finding of material damage further explains the absence of punitive damages in tort law. All the considerations point to a marked difference in the area of damage award for tort liability between Mexican law and American law. At a time in which much is heard about crisis in our tort system and a need to restructure our insurance laws, it may be useful to learn about the experiences of our neighbors and that of other legal systems in order to arrive at a more realistic determination of damage award for liability in tort. EXHIBIT "D"

October 3, 2014

Via Email

Re: Usumacinta Case.

I am writing you to update you concerning recent developments in your case. I am very sad to inform you that we have suffered another significant setback in your case after years of work. By way of background, I want to remind you about the timeline of the litigation.

We initially filed the case in Texas against the various defendants that we believe played a role in the explosion. The Defendants moved to dismiss the case back to Mexico in January 2009. We timely opposed the motion in May 2009. The federal judge in the Eastern District of Texas dismissed the case in July 2009. Subsequently, he vacated the award and the case was transferred to a different federal judge from the Eastern District of Texas. The Defendants again filed a motion to dismiss in December 2010. We responded in January 2011. Unfortunately, the judge rejected our arguments and dismissed the case back to Mexico in April 2011.

My firm undertook an extensive search to retain Mexican counsel. We drafted extensive petitions and filed the cases in Mexico consistent with the Court’s order. The Mexican Court dismissed the petitions for lack of jurisdiction in May 2013. Subsequently, we moved to reopen the cases again in the United States.

Defendants moved in November 2013 to dismiss the cases again arguing that the cases were still proper to be prosecuted in Mexico only. However, the cases in the United States were assigned to a different federal judge. We opposed Defendants motions. Unfortunately, the Judge dismissed the cases again in May of this year.

I truly regret that we were not able to obtain justice for you. We spent hundreds of thousands of dollars seeking to hold the Defendants accountable on your behalf. The most recent judge provided a possibility that the cases could be brought again in the United States. I have attached the order to this letter. Unfortunately, I think the chances of the Court accepting the jurisdiction for these cases even after following all steps is remote.

As a result, my firm and The Gomez Law Firm P.L.L.C. are withdrawing as counsel. I urge you to seek the advice of Mexican Counsel concerning refiling these cases in Mexico to see if the Courts will accept jurisdiction consistent with the requirements of the Eastern District of Texas order.

Please call or email if you have any questions or need access to any documents from the file and we will be happy to assist.

Sincerely,

Kurt B. Arnold

6009 Memorial Drive • Houston, TX 77007 • Phone 713.222.3800 • Toll Free 866.222.2606 • Fax 713.222.3850 • www.arnolditkin.com

3 de octubre del 2014

Asunto: Caso Usumacinta.

Le estoy escribiendo a usted para actualizarlo sobre lo que concierne recientes desarrollos en su caso. Estoy muy triste en informarle a usted que hemos sufridos otro obstáculo significante en su caso después de años de trabajo. Por medio de los antecedentes, yo quiero recordarle a usted acerca de la cronología de la litigación.

Nosotros inicialmente presentamos el caso en Texas en contra varios demandados que creíamos tomaron un papel en la explosión. Los Demandados tomaron medidas para rechazar el caso para atrás a México en enero del 2009. Nosotros oportunamente presentamos contraposición a la moción en mayo del 2009. El juez federal en el Distrito Este de Texas rechazó el caso en julio del 2009. Subsiguientemente, él dejó sin efecto el fallo y el caso fue traspasado a un juez federal diferente del Distrito Este de Texas. Los Demandados de nuevo presentaron una moción para rechazar en diciembre del 2010. Nosotros respondimos en enero del 2011. Desafortunadamente, el juez rechazó nuestros argumentos y rechazó el caso para atrás a México en abril del 2011.

Mi abogacía emprendió una extensiva búsqueda para retener un abogado en México. Nosotros borramos extensivos petitorios y presentamos los casos en México consistente con la orden del Tribunal. El Tribunal de México rechazó los petitorios por falta de jurisdicción en mayo del 2013. Subsiguientemente, nosotros presentamos una medida para reabrir los casos de nuevo en los Estados Unidos.

Los Demandados presentaron una medida en noviembre del 2013 para rechazar los casos de nuevo alegando que los casos todavía estaban apropiados para ser perseguidos en sólo México. Sin embargo, los casos en los Estados Unidos fueron asignados a un juez federal diferente. Nosotros estábamos en contraposición con las mociones de los Demandados. Desafortunadamente, el juez rechazó los casos de nuevo en mayo del presente año.

Yo realmente arrepiento que nosotros no fuimos capaces de obtener justicia para usted. Nosotros gastamos cienes de miles de dólares buscando a mantener los Demandados responsables por parte suya. El juez más reciente proveyó una posibilidad que los casos podrían ser presentados de nuevo en los Estados Unidos. Yo he anexado la orden a esta carta. Desafortunadamente, yo pienso que las posibilidades que el Tribunal aceptará la jurisdicción por estos casos aun después de seguir todos los pasos son remotas.

Como un resultado, mi abogacía y la abogacía de Julian C. Gomez nos estamos retirando como abogados. Le urjo a usted que busque el consejo de un Abogado de México sobre los que concierne presentando estos casos de nuevo en México para ver si los Tribunales acepten jurisdicción consistente con los requerimientos de la orden del Distrito Este de Texas.

Favor de llamar o enviarnos un correo electrónico si usted tiene algunas preguntas o necesita acceso a cualesquiera documentos del archivo y estaríamos gustosos de asistirlo.

Sinceramente,

6009 Memorial Drive • Houston, TX 77007 • Phone 713.222.3800 • Toll Free 866.222.2606 • Fax 713.222.3850 • www.arnolditkin.com

EXHIBIT EXHIBIT "E" "E" I

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Mat # 40695131 CODIGO CIVIL FEDERAL

DISPOSICIONES PRELIMINARES

Articulo 1 Las disposiciones de este C6digo regiran en toda la Republica en asuntos del orden federal. Articulo 2 La capacidad jurfdica es igual para el hombre y la mujer; en consecuencia, la mujer no queda sometida, por raz6n de su sexo, a restricci6n alguna en la adquisici6n y ejercicio de sus derechos civiles. Articulo 3 Las leyes, reglamentos, circulares 0 cualesquiera otras disposiciones de observancia general, obligan y surten sus efectos tres dias despues de Sll publicaci6n en el Peri6dico Oficial. En los distintos lugares en que se publique el Peri6dico Oficial, para que las leyes, reglamentos, etc., se reputen publicados y sean obligatorios, se necesita que adem as del plazo que fija el parrafo anterior, transcurra un dia mas por cada cuarenta kil6metros de distancia 0 fracci6n que exceda de la mitad. Articulo 4 Si la ley, reglamento, circular 0 disposici6n de observancia general, fija el dia en que debe comenzar a regir, obliga desde ese dia, con tal de que su publicaci6n haya sido anterior. Articulo 5 A ninguna ley ni disposici6n gubernativa se Ie dara efecto retroactivo en perjuicio de persona alguna. Articulo 6 La voluntad de los particulares no puede eximir de la observancia de la ley, ni alterarla 0 modificarla. S610 pueden renunciarse los derechos privados que no afecten directamente al interes publico, cuando la renuncia no perjudique derechos de terceros. Articulo 7 La renuncia autorizada en el articulo anterior no produce efecto alguno si no se hace en terrninos claros y precisos, de tal suerte que no quede duda del derecho que se renuncia. Articulo 8 Los actos ejecutados contra el tenor de las leyes prohibitivas 0 de interes publico seran nulos, excepto en los casos en que la ley ordene 10 contrario. Articulo 9 La ley s610 queda abrogada 0 derogada por otra posterior que as! 10declare expresamente 0 que contenga disposiciones total 0 parcialmente incompatibles con la ley anterior. Articulo 10 Contra la observancia de la ley no puede alegarse desuso, costumbre 0 practica en contrario. Articulo 11 Las leyes que establecen excepci6n a las reglas generales, no son aplicables a caso alguno que no este expresamente especificado en las mismas leyes.

2 FEDERAL CIVIL CODE

RES PRELIMINARY PROVISIONS 1 la Republica en Article 1 The provisions of this Code shall apply to the entire Republic in matters of a Federal nature. la mujer; en Article 2 The civil status of men and women is equal; wherefore, women are not : su sexo, a restriccion restricted, by reason of their sex, in the full enjoyment and exercise of their iles. civil rights. 1 otras disposiciones Article 3 The laws, regulations, circulars, or any other provisions of general ; dias despues de su observance are compulsory and take effect three (3) days after their publication in the official daily. Oficial, para que las For the laws, regulations, etc., to be deemed published and become obligatory rligatorios, se necesita in places other than where the official daily is published, the time period urra un dia mas por determined in the preceding paragraph shall be increased by one (1) additional ceda de la mitad. day for each forty (40) kilometers of distance, or fraction thereof exceeding bservancia general, one-half (112), from the place of such publication. e dia, con tal de que su Article 4 If a law, regulation, circular or provision of general observance designates the day when it is to take effect, it shall take effect on such day, provided it was lra efecto retroactivo en previously published. Article 5 No law or other governmental provision which shall be applied in a Je la observancia retroactive manner to the prejudice of any person. arse los derechos Article 6 No person may be exempted by agreement from observance of the law, cuando la renuncia no nor may alter or modify it. Private rights can only be waived when they do not directly affect the public interest or impair the rights of third parties. produce efecto alguno Article 7 The waiver authorized in the preceding Article produces no effect unless que no quede duda del it is made in clear and precise terms, so that there is no doubt as to the rights waived. prohibitivas 0 de Article 8 Any act prohibited by law or those contrary to the public interest shall be la ley ordene 10 null and void, unless otherwise provided by law. Article 9 A law is abrogated or repealed only by a subsequent law which expressly iosterior que as! so declares it or which contains provisions totally or partially incompatible na! 0 parcialmente with the previous law. Article 10 Disuse, custom or contrary practice cannot be alleged for se desuso, costumbre 0 noncompliance with the law. Article 11 Laws that establish an exception to general rules are not applicable to ierales, no son aplicables cases not expressly specified in the excepting laws. mismas leyes.

3 TITULO SEPTIMO DE LA PRESCRIPCION

Capitulo I-Disposiciones Generales Articulo 1135 Prescripci6n es un medio de adquirir bienes 0 de librarse de A obligaciones, mediante el transcurso de cierto tiempo y bajo las condiciones establecidas por la ley. Articulo 1136 La adquisici6n de bienes en virtud de la posesi6n se llama A prescripci6n positiva; la liberaci6n de obligaciones, por no exigirse su cumplimiento, se llama prescripci6n negativa. Articulo 1137 Solo pueden prescribirse los bienes y obligaciones que estan en el A comercio, salvo las excepciones establecidas por la ley. Articulo 1138 Pueden adquirir por prescripci6n positiva todos los que son capaces de adquirir por cualquier otro titulo; los menores y demas incapacitados pueden A hacerlo por medio de sus legftimos representantes. Articulo 1139 Para los efectos de los articulos 826 y 827, se dice legalmente cambiada la causa de la posesi6n cuando el poseedor que no poseia a titulo de duefio comienza a poseer con este caracter, y en tal caso la prescripci6n no A corre sino desde el dia en que se haya cambiado la causa de la posesi6n. Articulo 1140 La prescripci6n negativa aprovecha a todos, aun a los que por sf mismos no pueden obligarse. Articulo 1141 Las personas con capacidad para enajenar pueden renunciar la prescripci6n ganada, pero no el derecho de prescribir para 10 sucesivo. I

), Articulo 1142 La renuncia de la prescripci6n es expresa 0 tacita, siendo esta ultima la que resulta de un hecho que importa el abandono del derecho adquirido. Articulo 1143 Los acreedores y todos los que tuvieren legitimo interes en que la j prescripci6n subsista, pueden hacerla valer aunque el deudor 0 el propietario hayan renunciado los derechos en esa virtud adquiridos. Articulo 1144 Si varias personas poseen en comun alguna cosa, no puede ninguna j de elias prescribir contra sus copropietarios 0 coposeedores; pero sf puede prescribir contra un extrafio, y en este caso la prescripci6n aprovecha a todos los partfcipes.

430 TITLE SEVEN LIMITATIONS OF ACTIONS

Chapter 1-. General Provisions se de Article 1135 Limitations of actions is the means whereby one can acquire property mdiciones or be released from an obligation by the passage of a specified period of time and under conditions established by law. rna Article 1136 The acquisition of assets by possession is referred to as affirmative .e su limitations of actions; the release from obligations for failure to demand with its compliance is referred to as negative limitations. estan en el Article 1137 Only those assets and obligations that are in the stream of commerce can be the subject of limitations of actions, except for those specifically : son cap aces exempted by law. itados pueden Article 1138 All persons can acquire property by affirmative prescription if they have capacity to acquire title in any other manner. Minors and other lmente incompetents can acquire property by affirmative limitations through their legal fa a titulo representatives. scripcion no Article 1139 For the purposes of Articles 826 and 827, the character of possession .esion, changes when the person in possession no longer holds as owner but thereafter [ue por sf asserts possession as such. The statute of limitations begins to run from the time of the change in the character of the asserted possession. nciar la Article 1140 Negative limitation is available to all persons, including those who sivo. cannot incur an obligation in their own name. fo esta ultima Article 1141 Any person who has the capacity to convey may renounce the dquirido, limitations period attained, but not the right of adverse possession to accrue in the future. s en que la propietario Article 1142 The renunciation of limitations is either express or implied. An implied renunciation results from some act that implies the abandonment of acquired rights. ede ninguna i puede Article 1143 Creditors and all others who have a legitimate interest in the ha a todos subsistence of limitations may assert their rights against the owner of the property or the obligor, even though the owner/obligor has renounced any rights so acquired. Article 1144 If more than one person has possession of an asset, none of them can assert adverse possession against his co-owner or co-possessors; but one person's adverse holding shall be effective against a third party and shall inure to the benefit of all the co-possessors.

431 Mexican Civil Code Annotated

Capitulo V-De la Interrupcion de la Prescripcion

Articulo 1168 La prescripcion se interrumpe: I. Si el poseedor es privado de la posesion de la cosa 0 del goce del derecho por mas de un ario; II. Por demanda u otro cualquier genero de interpelacion judicial notificada al poseedor 0 al deudor en su caso. Se considerara la prescripcion como no interrumpida por la interpelacion judicial si el actor desistiese de ella 0 fuese desestimada su demanda; III. Porque la persona a cuyo favor corre la prescripcion reconozca expresamente, de palabra 0 por escrito, 0 tacitamente por hechos indudables, el derecho de la persona contra quien prescribe. Empezara a contarse el nuevo terrnino de la prescripcion, en caso de reconocimiento de las obligaciones, desde el dia en que se haga; si se renueva el documento, desde la fecha del nuevo titulo, y si se hubiere prorrogado el plazo del cumplimiento de la obligacion, desde que este hubiere vencido.

TESIS SOBRESALIENTE PRESCRIPCION ADQUISITIVA. EXISTE RENUNCIA TACITA A ESA FORMA DE ADQUIRlR LA PROPRIEDAD, CUANDO EL POSEEDOR RECONOCE EL DERECHO DEL PROPIETARIO, ANTES THE PROMOVER EL JUICIO DE USUCAPION (LEGISLACrON DEL ESTADO DE PUEBLA).-" ... cuando el beneficiado con la prescripcion positiva, antes de solicitar a la autoridad judicial competente la declaratoria de usucapion en su favor, reconoce por hecho indubitable el derecho del propietario, debe entenderse que renuncio tacitamente a la prescripcion que habia comenzado 0 ... ganado, toda vez que la interrupcion de que habla la ley, evidentemente deja sin efectos los derechos del poseedor con respecto a la prescripcion, hasta el momenta del reconocimiento." Amparo directo 418/987. Jose Flores Tobon. 14 de abril de 1988. Unanimidad de votos. Ponente: Enrique Duenas Sarabia. Secretario: Ramon Sandoval Hernandez. Primer Tribunal Colegiado del Sexto Circuito. Informe rendido a la Suprema Corte de Justicia de la Nacion por su Presidente, Tercera Parte, Vol. IL Mayo Ediciones, S. de R.L. Mexico, 1988, p. 755. Articulo 1169 Las causas que interrumpen la prescripcion respecto de uno de los deudores solidarios, la interrumpen tambien respecto de los otros. Articulo 1170 Si el acreedor, consintiendo en la divisi6n de la deuda respecto de uno de los deudores solidarios, s610 exigiere de ella parte que Ie correspond a, no se tendra por interrumpida la prescripcion respecto de los demas. Articulo 1171 Lo dispuesto en los dos articulos anteriores es aplicable a los herederos del deudor.

454 TITLE SEVEN LIMITATIONS OF ACTIONS Article 1168 rcion Chapter V-Tolling of the Statute of Limitations

Article 1168 The running of the statute of limitations shall be interrupted: goce del I. If the possessor is deprived of possession of the property or of the enjoyment of a right for more than one year; dicial notificada II. By the commencement of any action or proceeding where the possessor or obligor is notified. r Ja There is no interruption in the running of the statute oflimitations if ) desestimada the plaintiff subsequently waives his claim or the judicial proceeding or action is dismissed; mozca r hechos III. If the person who asserts adverse title or bar expressly acknowledges, be. verbally or in writing, or impliedly through unequivocal acts, the right of the person against whom the statute is running. I, en caso de

se haga; si se The statute shall commence to run anew, in case of such si se hubiere acknowledgement, from the date it is made; and if a credit instrument is lesde que este renewed, from its new issue date, and if extended from its new due date.

SALIENT THESIS

ADQUISITIVE PRESCRIPTION. THERE EXISTS A TACIT fAAESA RENUNCIATION TO THAT FORM OF ADQUIRING PROPERTY, WHEN )SEEDOR THE POSSESSOR RECOGNIZES THE RIGHT OF THE OWNER, BEFORE IE FILING AN USUCAPIION LAW SUIT (LEGISLATION OF THE STATE )ELESTADO OF PUEBLA).-" ... when the beneficiary who has the positive prescription, iositiva, antes prior to requesting the declaration of usucapion to a competent judicial usucapion authority, recognizes by an undoubtable fact, the right of the owner, it has to etario, debe be understood that he/she tacitly renounced to the prescription that he/she had comenzado 0 started or ... won, since the interruption established by law evidently leaves the entemente deja rights of the possessor without effects with respect to prescription, up until the ion, hasta el moment of recognition." Arnparo directo 418/987. Jose Flores Toben. 14 de abril de 1988. Unanimidad ? Unanimidad de votos. Ponente: Enrique Duenas Sarabia. Secretario: Ramon Sandoval Sandoval Hernandez. Primer Tribunal Colegiado del Sexto Circuito. Informe rendido a me rendido a la Suprema Corte de Justicia de la Nacion por su Presidente, Tercera Parte, rcera Parte, Vol. II, Mayo Ediciones, S. de RL. Mexico, 1988, p. 755. Article 1169 If the running of the statute of limitations is interrupted for any reason ie uno de los against one of joint and several obligors, it shall be interrupted against all. s. Article 1170 If the obligee of a joint and several obligation consents to the division I respecto de of the obligation as to one of the obligors and demands of him only his . correspond a, proportional share, the running of the statute shall not be interrupted against the nas. other joint obligors. de a los Article 1171 The provisions of Articles 1169 and 1170 are applicable to the heirs of the debtor.

455 Mexican Civil Code Annotated TIT

Capitulo V-De las Obligaciones que Nacen de los Actos Ilicitos (Responsabilidad Extra-Contractual) Ar Articulo 1910 El que obrando ilicitamente 0 contra las buenas costumbres cause dana a otro, esta obligado a repararlo, a menos que demuestre que el dana se produjo como consecuencia de culpa 0 negligencia inexcusable de la victima, Articulo 1911 EI incapaz que cause dana debe repararlo, salvo que la Ar responsabilidad recaiga en las personas de el encargadas, conforme 10 dispuesto en los articulos 1919, 1920, 1921 Y 1922. Articulo 1912 Cuando al ejercitar un derecho se cause dana a otro, hay obligaci6n Ar de indemnizarlo si se demuestra que el derecho s610 se ejercit6 a fin de causar el dafio, sin utilidad para el titular del derecho. Articulo 1913 Cuando una persona hace uso de mecanismos, instrumentos, AI aparatos 0 sustancias peligrosas por sf mismos, por la velocidad que desarrolIen, por su naturaleza explosiva 0 inflamable, por la energia de la corriente electrica que conduzcan 0 por otras causas analogas, esta obligada a responder del dana que cause, aunque no obre ilicitamente; a no ser que demuestre que ese dana se produjo por culpa 0 negligencia inexcusable de la victima. Articulo 1914 Cuando sin el empleo de mecanismos, instrumentos, etc., a que se refiere el articulo anterior, y sin culpa 0 negligencia de ninguna de las partes, se producen dafios, cada una de elIas los soportara sin derecho a indemnizacion. Articulo 1915 La reparacion del dana debe consistir, a eleccion del ofendido, en el A restablecimiento de Iisituacion anterior, cuando ella sea posible, 0 en el pago de dafios y perjuicios. Cuando el dana se cause a las personas y produzca la muerte, incapacidad total permanente, parcial permanente, total temporal 0 parcial temporal, el grado de la reparacion se determinara atendiendo a 10 dispuesto por la Ley Federal del Trabajo. Para calcular la indemnizaci6n que corresponda se tornara como base el cuadruplo del salario rninimo mas alto que este en vigor en la region y se extendera al nurnero de dias que para cada una de las incapacidades mencionadas sefiala la Ley Federal del Trabajo. En caso de muerte, la indemnizaci6n correspondera a los herederos de la victima, Los creditos por indemnizaci6n, cuando la vfctima fuere un asalariado, son intransferibles y se cubriran preferentemente en una sola exhibicion, salvo convenio entre las partes. Las anteriores disposiciones se observaran en el caso del articulo 2647 de este codigo. TITLE ONE ORIGINS OF OBLIGATIONS Article 1910 licitos Chapter V-Liabilities From Illicit Acts (Torts)

Article 1910 Whoever, by acting illicitly or against the good customs, causes cause damage to another shall be obligated to compensate him/her, unless he/she afio se can prove that the damage was caused as a result of the fault or inexcusable ictima, negligence of the victim.

Article 1911 If an incompetent person causes damage, he/she is obligated to Iispuesto compensate for it, unless the liability falls on those responsible for him/her in accordance with the provisions of Articles 1919 to 1922 inclusive.

ligaci6n Article 1912 If in the exercise of a right damage is caused to another, there is . causar an obligation to indemnify the injured party if it is shown that the right was exercised only to cause injury, without any benefit to the holder of the right.

Article 1913 If a person employs mechanisms, instruments, equipment or substances which are inherently dangerous, because of the speed they develop, la their explosive nature or inflammable characteristics, or by the intensity ofthe gada electric current, or similar causes, he/she is liable for the damages or injuries ue they cause even though he/she is using them licitly, unless he can prove that the : de la damage was caused by the fault or inexcusable negligence of the victim.

Article 1914 Ifwithout the use of machinery, equipment, etc., as referred to in que se Article 1913 and without fault or negligence of either party damages are iartes, se . caused, each party shall bear his/her own losses, without a right of indemnity acion, from the other.

10, en el Article 1915 Damages shall consist, at the election of the injured party, either :1 pago in the restoration of the damaged item to its previous condition when this is possible or in the payment of the damages and loss.

ad total If an injury is caused to individuals and causes death or disability (either total ·ado or partial, temporary or permanent), the amount due for reparations shall be deral determined by the provisions of the Federal Labor Act. In order to calculate the como indemnity due, the highest minimum daily wage in force in the region shall be gi6n multiplied by four (4), and shall extend for the number of days during which the victim suffers from each of the incapacities set forth in the Federal Labor Act. In the event ofthe victim's death, the indemnity shall , be paid to his/her heirs.

son If the injured party is a wage-earner, the indemnification cannot be assigned or vo transferred, and it shall preferably be paid in one lump sum, except as agreed between the parties.

Ie este The preceding provisions shall be followed in those cases referred to by Article 2647 of this Code.

653 Mexican Civil Code Annotated TITJ

Articulo 1916 (Reformado segun enmienda publicada en el OOF del 13 de abril de Art 2007)

Por dana moral se entiende la afectacion que una persona sufre en sus sentimientos, afectos, creencias, decoro, honor, reputacion, vida privada, configuracion y aspectos fisicos, 0 bien en la consideracion que de si misma tienen los demas, Se presumira que hubo dana moral cuando se vulnere 0 menoscabe ilegitimamente la libertad 0 la integridad fisica 0 psiquica de las personas.

Cuando un hecho u omision ilicitos produzcan un dana moral, el responsable del mismo tendra la obligacion de repararlo mediante una indemnizacion en dinero, con independencia de que se haya causado dana material, tanto en responsabilidad contractual como extracontractual. Igual obligaci6n de reparar el dana moral tendra quien incurra en responsabilidad objetiva conforme al articulo 1913, asi como el Estado y sus servidores publicos, conforme a los articulos 1927 y 1928, todos ellos del presente codigo.

La accion de reparacion no es transmisible a terceros por pacto entre vivos y solo pasa a los herederos de la victima cuando esta haya intentado la accion en vida.

EI monto de la indemnizacion 10 determinara el juez tomando en cuenta los derechos lesionados, el grado de responsabilidad, la situacion economica del responsable y la de la victima, asi como las demas circunstancias del caso.

Cuando el daiio moral haya afectado a la victima en su decoro, honor, reputacion 0 consideracion, el juez ordenara, a peticion de esta y con cargo al responsable, la publicacion de un extracto de la senten cia que refleje adecuadamente la naturaleza y alcance de la misma, a traves de los medios informativos que considere convenientes. En los casos en que el dana derive de un acto que haya tenido difusion en los medios informativos, el juez ordenara que los mismos den publicidad al extracto de la sentencia, con la misma relevancia que hubiere tenido la difusion original.

DANO MORAL, DERECHO A LA REPARACION DEL. SE DA EN FAVOR DE UNA PERSONA, COMO CONSECUENCIA DE UNA INADECUADA ATENCION MEDICA PRESTADA POR UN CENTRO HOSPITALARIO QUE VULNERE 0 MENOSCABE SU INTEGRIDAD FiSICA 0 PSiQUICA.-En terminos del articulo 1916 del Codigo Civil para el Oistrito Federal y Codigo Civil Federal, el dana moral consiste en la afectacion que una persona sufre en sus sentimientos, afectos, creencias, decoro, honor, reputacion, vida privada, configuracion y aspectos ffsicos, 0 bien en la consideracion que de si misma tienen los dernas, Se presumira que hay dana moral, cuando se vulnere 0 menoscabe ilegftimamente la libertad o la "integridad ffsica 0 psiquica" de las personas, siendo independiente el dafio moral, del dafio material que se cause; luego, si un centro hospitalario Ie presta a una persona una inadecuada atencion medica y por esa circunstancia

654 TITLEONE ORIGINSOFOBLIGATIONS Article 1916 : abril de Article 1916 (As amended by DOF of April 13,2007) For moral damage it is understood the injuries inflicted upon a person's feelings, affections, beliefs, decorum, honor, reputation, privacy, image and ida, physical appearance, or how that person is perceived in the opinion of others. mrsma Moral damages shall be presumed when a person's freedom or hislher physical re 0 or psychological integrity is illegitimately injured or diminished. de las If an illicit act or omission causes moral damage, the person responsible shall be liable to pay a monetary indemnification, independent of any other liability isable for material damages by virtue of a contract or extra-contractually. He/she 'n en shall also be liable for moral damages resulting from strict liability, pursuant to en Article 1913, including the state and its public servants as provided by Articles reparar 1927 and 1928 of this Code. e al The cause of action for moral damage cannot be transferred to third parties and los can only be passed to the victim's heirs when the victim has filed it when he/ she was alive. VIVOS The amount of the indemnification shall be determined by the judge taking la into account the injured person's rights, the degree of liability, the economic situation of the responsible, and that of the victim, as well as the other los circumstances of the case. 1 del When the moral damage has injured the victim's decorum, honor, reputation :0. or personal esteem, the judge shall order, at the victim's request and at the expense of the responsible, the publication of the judgment's summary which go is to adequately reflect its nature and scope, through the news media deemed appropriate. In case [moral] damage derives from an act that has disseminated os through the mass media, the judge shall order said media to publicize rive de the judgment's summary with the same prominence given to the original .nara dissemination. MORAL, RIGHT DAMAGE TO THE REPAIR OF. THERE HAPPENS IN FAVOR OF A PERSON, AS CONSEQUENCE OF INADEQUATE UNA MEDICAL ATTENTION GIVEN BY A HOSPITABLE CENTER THAT DAMAGES OR REDUCES IDS PHYSICAL OR PSYCIDC RO INTEGRITY.-In terms of the article 1916 of the Civi I Code for the DAD Federal District and Civil Federal Code, the moral damage consists of the affectation that a person suffers in his feelings, affections, credence, decorum, honor, reputation, private life, configuration and physical aspects, or in the s, consideration that of yes same have the others. It will be presumed that there is o moral damage, when there is damaged or reduces illegitimately the freedom or que the "physical or psychic integrity" of the persons, being independent the moral d damage, of the property damage that is caused; then, if a hospitable center I gives to a person an inadequate medical attention and for this circumstance is io Ie cia

655 TITLE Mexican Civil Code Annotated

III. Por la caida de sus arboles, cuando no sea ocasionada por fuerza mayor; II IV. Por las emanaciones de cloacas 0 depositos de materias infectantes; V. Por los depositos de agua que humedezcan la pared del vecino 0 derramen sobre la propiedad de este; \ VI. Por el peso 0 movimiento de las maquinas, por las aglomeraciones de materias 0 animales nocivos a la salud, 0 por cualquier causa que sin \ derecho origine algun dafio. Articulo 1933 Los jefes de familia que habiten en una casa 0 parte de ella, son responsables de los dafios causados por las cosas que se arrojen 0 cayeren de la Arti: rrnsma. t 1: Articulo 1934 La accion para exigir la reparacion de los dafios causados en los terminos del presente capitulo, prescribe en dos afios contados a partir del dia en que se haya causado el dafio,

662 TITLE ONE ORIGINS OF OBLlGA TlONS Article 1932 fuerza mayor; III. From falling trees, if not caused by force majeure; fectantes; IV. From the escape of noxious substances from drainage ditches or holding cmo 0 tanks; v. From water tank filtrations through the wall of the neighbor or their .aciones de spillage onto his property; sa que sin VI. From the weight or vibration of machines, the accumulation of hazardous materials or animals that are injurious to health, or from the ella, son existence of any unlawful condition he creates. cayeren de la Article 1933 The head of a household who resides therein or occupies a part thereof is liable for damages resulting from objects thrown or falling from the os en los building. irtir del dfa Article 1934 A cause of action for damages resulting from any of the acts referred to in this Chapter shall be barred after two years from the date that the damage occurred. Case 9:08-cv-00200-MAC Document 258-1 Filed 04/29/11 Page 1 of 4 PagelD #: 4673

EXHIBIT "F" EXHIBIT "F" IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

MARIA SANTOS LOPEZ DOMINGUEZ, § ET AL., § § Civil Action No. 9:08-CV-200-TJW Plaintiffs, § § v. § § GULF COAST MARINE & § ASSOCIATES, INC., ET AL., § § Defundanb. §

STIPULATION OF DEFENDANTS REGARDING DISMISSAL

COME NOW, Defendants Gulf Coast Marine & Associates, Inc., Glen Carter,

Halliburton Energy Services, Inc., f/k/a Halliburton Company, Schlumberger Technology

Corporation, and Matthews Daniel Company (collectively, "Defendants"), and file their

stipulation in accordance with the Court's Memorandum Opinion and Order conditionally

granting Defendants' Consolidated Motion to Dismiss for Forum Non Conveniens. (Docket

Entry 257.)

STIPULATIONS

In the event the Plaintiffs in this lawsuit re-file any of their claims arising from the

allegations set forth in their Complaint in a Mexican court, Defendants hereby stipulate to the

following:

1. Defendants agree to appear and submit themselves to the jurisdiction of a

Mexican federal or state court, waiving any jurisdictional defenses they might

normally possess.

2. Defendants agree to waive any statute of limitations or laches defense that they

did not possess as of the date this lawsuit was originally filed.

DB 1/67142056.2 Case 9:08-cv-00200-MAC Document 258-1 Filed 04/29/11 Page 2 of 4 PagelD #: 4674

3. Defendants agree to submit to discovery in the Mexican forum in accordance with

the procedural rules of the Mexican court.

4. Defendants agree that they will make all relevant witnesses and documents

available in Mexico to the extent consistent with Mexican law.

5. Defendants further agree that they will make any employee witness available for

trial in Mexico to the extent consistent with Mexican law.

Dated: April 29, 2011 Respectfully submitted,

/s/ Hugh E. Tanner Hugh E. Tanner Texas Bar No. 19637400 MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana St., Suite 4200 Houston, TX 77002-5006 Telephone: (713) 890-5000 Fax: (713) 890-5001 htanner@MorganLewis.com

ATTORNEY-IN-CHARGE FOR DEFENDANT SCHLUMBERGER TECHNOLOGY CORPORATION

/s/ Michael D. Williams" Michael D. Williams Texas Bar No. 21564330 BROWN SIMS, P.C. 1177 West Loop South, 10th Floor Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027

ATTORNEY-IN-CHARGE FOR DEFENDANTS GULF COAST MARINE & ASSOCIATES, INC., AND GLEN CARTER

2 Case 9:08-cv-00200-MAC Document 258-1 Filed 04/29/11 Page 3 of 4 PagelD #: 4675

lsi R. Bruce Hurley* R. Bruce Hurley State Bar No.1 0311400 KING & SPALDING 1100 Louisiana, Suite 3300 Houston, Texas 77002-5219 Telephone: 713.751.3200 Fax: 713.751.3290

ATTORNEY-IN-CHARGE FOR DEFENDANT HALLIBURTON ENERGY SERVICES, INC. FIKfA HALLIBURTON CO.

lsi Mark C. Clemer* Mark C. Clemer Texas Bar No. 04372300 Brown Sims, P.C. 1177 West Loop South, Tenth Floor Houston, Texas 77027 [t] 713-629-1590 [f] 713-629-5027 mclemer@brownsims.com

ATTORNEY-IN-CHARGE FOR DEFENDANT MATTHEWS ODANIELCOMPANY

*Signed by Hugh E. Tanner with express permission.

3 Case 9:08-cv-00200-MAC Document 258-1 Filed 04/29/11 Page 4 of 4 PagelD #: 4676

I hereby certify that on the 29th day of April, 2011, I electronically filed the foregoing

with the clerk of the court by using the CMlECF system, which will send a notice of electronic

filing to all CMlECF participants.

/s/ Hugh E. Tanner Hugh E. Tanner

DBI/67142056.2 EXHIBIT EXHIBIT "G" "G" CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

AFFIDAVIT OF DAVID ERIC KASSAB

STATE OF TEXAS § § COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day personally appeared David Eric Kassab who, being by me duly sworn, deposed as follows:

"My name is David Eric Kassab. I am of sound mind, over the age of eighteen (18) years, capable of making this affidavit and personally acquainted with the facts herein stated and they are true and correct. The opinions contained herein, if any, are based upon my experience, training and education as an attorney and are held to a reasonable degree of legal probability.

I am an attorney licensed to practice law in the State of Texas. I have been licensed to practice law by the State of Texas since 2010 and I am in good standing. I am a lawyer at the Law Offices of Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm, which has been retained to represent Plaintiffs in the above-entitled case. I am an attorney of record for the Plaintiffs in this case and have been very active in all aspects of this case. In representing Plaintiffs in this case, I have obtained documents from the underlying action Civil Action No. 9:08-cv-200; Maria Santos Lopez Dominguez, et al., v. Gulf Coast Marine & Associates, Inc. et at; In the United States District Court for the Eastern District of Texas Lufkin Division (the "underlying case").

AFFIDAVIT OF DAVID ERIC KASSAB PAGE10F2 Attached to Plaintiffs' Response to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement (the "Response") as Exhibit "A" is a true and correct copy of the April 20, 2011 Memorandum Opinion and Order from Judge T. John Ward which my office obtained from the official governmental website PACER (Public Access to Court Electronic Records).

Attached to Plaintiffs' Response as Exhibit "B" is a true and correct copy of the May 14,2014 Memorandum and Order from Judge Marcia A. Crone which my office obtained from the official governmental website PACER (Public Access to Court Electronic Records).

Attached to Plaintiffs' Response as Exhibit "C" is a true and correct copy of the Law Review Article Moral Damages in Mexican Law: A Comparative Approach which my office obtained from online legal resources.

Attached to Plaintiffs' Response as Exhibit "D" is a true and correct copy of an October 3, 2014 letter sent from Arnold & Itkin, LLP to one of the Plaintiffs in this lawsuit which I obtained from my client in this case.

Attached to Plaintiffs' Response as Exhibit "E" are true and correct copies of the relevant sections of the Mexican Civil Code Annotated (Bilingual Edition) authored by Professor Jorge A. Vargas of the San Diego School of Law.

Attached to Plaintiffs' Response as Exhibit "F" is a true and correct copy of the Stipulation of Defendants Regarding Dismissal filed by the defendants in the underlying case which my office obtained from the official governmental website PACER (Public Access to Court Electronic Records).

I am one of the custodians of records for The Kassab Law Finn and I have care, custody and control of the records and litigation files maintained in this case. The Exhibits attached to the Response are kept in the regular course of business of The Kassab Law Firm and maintained by The Kassab Law Firm on behalf of Plaintiff as during the course of this litigation.

Further, Affiant saith not."

SWORN TO AND SUBSCRIBED before me on the 12th day of Augu:u--.~~ ..

AFFIDAVIT OF DAVID ERIC KASSAB PAGE20F2 CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

ORDER DENYING DEFENDANTS’ PLEA TO THE JURISDICTION AND PLEA IN ABATEMENT

On this day came on to be considered the Plea to the Jurisdiction, and, in the Alternative,

Plea in Abatement of Defendants, ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P.,

ALBRITTON LAW FIRM, KURT ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL

POST, FIELDS ALEXANDER, JAS BRAR AND ERIC ALBRITTON, and Plaintiff’s

Response to All Defendants’ Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement,

and the Court, after considering same and hearing argument of counsel is of the opinion that said

motion and pleas should be denied, and it is, therefore

Ordered that all Pleas to the Jurisdiction and all Pleas in Abatement of Defendants,

ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P., ALBRITTON LAW FIRM, KURT

ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS ALEXANDER, JAS

BRAR AND ERIC ALBRITTON, are hereby denied in their entirety. Signed this _____ day of ________________________, 2015.

_____________________ Judge Mike Miller Appendix Tab 3 CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION, AND, IN THE ALTERNATIVE, PLEA IN ABATEMENT TO THE HONORABLE JUDGE MIKE MILLER:

COME NOW Plaintiffs, Maria Santos Lopez Dominguez, et al., and files this, their Sur-

Reply to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement, and

would respectfully show as follows:

Only “some injury” needs to be shown for Plaintiffs’ claims to be ripe. See Vanderweyst

v. Boudreaux, No. 01-02-00928-CV, 2003 Tex. App. LEXIS 8549, 2003 WL 22255833, at *4

(Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.); In re Marriage of Pyrtle,

433 S.W.3d 152, 164 (Tex. App.—Dallas 2014, pet. denied). Defendants do not dispute that, had

the forum non conveniens motion been denied in the underlying case, Plaintiffs, at minimum,

could have pursued their Mexican law claims in the United States. Plaintiffs contend that, due to

Defendants’ negligence, the underlying court granted the forum non conveniens motion and

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 1 OF 28 required Plaintiffs to file their claims in Mexico, where, even if the claims are not barred, they

are now faced with virtually non-existent discovery, no procedural protections, extensive delays

to any resolution and the unlikelihood of any attorney taking their case. The lost benefit of

pursuing their claims in a United States court is at least some “concrete injury” which has already

occurred and is not contingent on any future event, thereby rendering these claims ripe. See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-*15 (lost opportunity found to constitute

injury sufficient to demonstrate ripeness even if other damages were speculative, holding “[t]he

loss of that benefit, whatever it may ultimately be determined to be worth, constitutes the first of

[the plaintiff’s] pled injuries.”).

Further, the underlying proceedings have clearly been concluded. Plaintiffs’ United

States case has been dismissed. While the Jones Act claims were dismissed without prejudice,

they were dismissed on September 20, 2010. The entire United States case was then dismissed

on April 20, 2011. Plaintiffs cannot re-file their Jones Act claims because they are now barred by

limitations. The dismissal of the Jones Act claims is not an “interlocutory order” as Defendants

contend, but is a final judgment because the claims may not be refiled. And, because Defendants’

refused to timely pursue these claims in Mexico, the “return jurisdiction” clause is inapplicable.

Accordingly, Plaintiffs’ claims are barred by limitations in both Mexico and the United States.

This may be proven through expert testimony and Plaintiffs are not required to re-file clearly

barred claims to litigate this malpractice case. Alexander v. Turtur & Assocs., 146 S.W.3d 113,

122 (Tex. 2004)(client proves what court would have done under different circumstances by way

of expert testimony); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied)(client filed lawsuit against attorney without first filing the underlying product liability

suit); Garcia v. Boyar & Miller, P.C., 2007 U.S. Dist. LEXIS 63432 (N.D. Tex. Aug. 28,

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 2 OF 28 2007)(client not required to exhaust administrative remedies prior to suing attorney); Mayer v.

Biafore, Florek & O'Neill, 245 Conn. 88, 89 (Conn. 1998)(“because the trier of fact hearing the

plaintiff's malpractice case must determine … whether [the underlying] action is time barred,

there is no need for a prior determination that the statute of limitations has run as a condition

precedent to the plaintiff pursuing this case.”).

II SUR-REPLY TO DEFENDANTS’ ARGUMENTS

A. RIPENESS STANDARD AND REVIEW.

A claim is ripe for review if the pleadings demonstrate at least some injury – no matter

how slight. See Vanderweyst, 2003 Tex. App. LEXIS 8549, at *4 (fact that amount of damages

was not yet determined at time of filing did not make plaintiff's claims unripe where record

showed “some injury” to plaintiff at that time). In addition, a claim is ripe if the pleadings

demonstrate that further injury is merely “likely to occur.” Robinson v. Parker, 353 S.W.3d 753,

755 (Tex. 2011). In making its determination, the Court is required to construe the pleadings in

the Plaintiffs’ favor. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). More importantly, the Court must overrule the motion unless Defendants’ evidence

clearly demonstrates that the Court lacks jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000). Generally, no order on a plea to the jurisdiction filed by a party

other than a governmental unit may be appealed before final judgment. TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(8); Prada de Portugal v. Prada, 2005 Tex. App. LEXIS 192, at *5 (Tex.App.

– San Antonio Jan. 12, 2005, no pet.)(“an appellate court will not entertain an interlocutory

appeal from a court’s denial of a plea to the jurisdiction unless it relates to a governmental

unit.”).

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 3 OF 28 B. PLAINTIFFS’ CLAIMS ARE RIPE BECAUSE PLAINTIFFS HAVE SUFFERED AT LEAST SOME INJURY CAUSED BY DEFENDANTS’ CONDUCT.

Defendants contend that “there obviously has not been any final outcome in the

underlying case, so any malpractice lawsuit relating to how the attorneys handled the venue

arguments is premature, and must be either dismissed or abated.”1 Yet, the underlying United

States case was dismissed with Judge Ward’s April 20, 2011 order dismissing the case on forum

non conveniens grounds.2 In the Fifth Circuit, “[d]ismissals for forum non conveniens … have

been considered final and appealable by right.” Koke v. Phillips Petroleum Co., 730 F.2d 211,

214 (5th Cir. Tex. 1984) (emphasis added); See also Vinson v. Am. Bureau of Shipping, 318

S.W.3d 34, 41 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)(noting that “dismissal of a

case on grounds of forum non conveniens is deemed a final judgment appealable . . . even though

it does not end the litigation.”). In fact, Defendants appealed the prior final dismissal entered by

Judge Clark on May 29, 2009 on forum non conveniens grounds, but the case was remanded to

allow Judge Ward to indicate to the Court of Appeals whether he was inclined to vacate Judge

Clark’s dismissal of this case in light of Judge Clark’s subsequent recusal. See Dominguez v.

Gulf Coast Marine & Assocs., 607 F.3d 1066, 1076 (5th Cir. Tex. 2010). The “conditions”

placed on the dismissal are immaterial to creating finality. See Id. at 1072, n. 3 (“this Court has

held that conditional forum non conveniens dismissals are final, despite the fact that the orders

may literally appear to have more typically nonfinal characteristics because they are

conditional.”)(internal quotations omitted).

It is undisputed that, had the forum non conveniens motion been decided differently,

Plaintiffs would have, at bare minimum, been permitted to pursue their Mexican law or general

maritime tort law claims in the United States because these claims were not pre-empted by the

1 See ARNOLD & ITKIN REPLY, at p. 6.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 4 OF 28 Jones Act. Lorenzana v. Gulf Coast Marine & Assocs., 2010 U.S. Dist. LEXIS 99356, at *15

(E.D. Tex. Sept. 20, 2010); Stier v. Reading & Bates Corp., 992 S.W.2d 423, 434 (Tex. 1999).

Thus, the “injury” caused by Defendants’ failure to assert the proper evidence and argument in

response to the forum non conveniens motion or, alternatively, timely appeal the dismissal is

having to spend time and effort in exhausting their remedies in Mexico which, according to

Plaintiffs’ experts, will be futile.3

The underlying defendants stipulated that they would “agree to submit to discovery in the

Mexican forum in accordance with the procedural rules of the Mexican court” and make “all

witnesses and documents available in Mexico to the extent consistent with Mexican law.”4 As

a result of Defendants’ negligence, Plaintiffs are now required to pursue their claims in Mexico

according to these stipulations. Even if Plaintiffs’ claims are not barred in Mexico and a Mexican

court would accept jurisdiction (which they would not), then Plaintiffs have still suffered a

“concrete” injury that is not contingent on any future events because the courts in Mexico

provide for very limited discovery and do not afford Plaintiffs with procedural safeguards, which

will undoubtedly hinder Plaintiffs’ ability to pursue these claims.5

To demonstrate this point, Plaintiffs have attached the joint affidavit of Mexican attorney

and conflicts of law professor, Aranau Muria and professor of Mexican law, Henry Saint Dahl,

two Mexican law experts. Mr. Muria and Mr. Dahl opine that “Mexico has no discovery and no

depositions.”6 When filing the lawsuit, the plaintiff “has to produce all the documentary

evidence, and without discovery” and “Mexican law is very clear in the sense that documents

2 See PLAINTIFFS’ RESPONSE, at Exhibit “A”. 3 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 4 See PLAINTIFFS’ RESPONSE, at Exhibit “F”, p. 2 (emphasis added). 5 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10-11. 6 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 5 OF 28 found after the lawsuit is filed, are inadmissible[.]”7 Witness testimony must take place in open

court and “[a] party can only present up to five witnesses for each fact…”8 “This means that, in a

case where plaintiff needs to prove some type of engineering malfunctioning, for instance if a

valve failed to operate as intended to, and the defendants are in the U.S., the support afforded by

Mexican evidentiary rules is close to zero.”9 Simply put, “Mexican law completely rejects any

American type of discovery.”10 The lack of these procedural safeguards and ability to conduct

discovery that would have been available to them in the United States is at least some concrete

“injury” that is not contingent on any further hypothetical or undeveloped facts.

In Vanderweyst v. Boudreaux, supra, the Houston Court of Appeals held that a damages

claim, though speculative, was “fodder for a summary judgment motion, not a dismissal for lack

of ripeness in a plea to the [trial court's] jurisdiction.” Vanderweyst, 2003 Tex. App. LEXIS

8549, at *14-15. There, the plaintiff sued the defendant for her lost opportunity to execute a

judgment against Nationwide. Id. at *13. The defendant filed a plea to the jurisdiction based on

ripeness, asserting that the trial court lacked subject matter jurisdiction over the plaintiff’s claims

because Nationwide had appealed the judgment obtained by the plaintiff and because the “appeal

was still pending, judgment had not been rendered on the bond.” Id. at *5-6. Further, defendants

alleged that, even if [the plaintiff] had a right to collect on the judgment today, and Nationwide

could not satisfy the judgment, [the plaintiff] has never attempted to collect on the supersedeas

bond, nor does she allege.” Id. at *6. Thus the defendants argued, similar to Defendants in this

case, that plaintiff’s claims were “premature because it is possible that she will not prevail on

7 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 10. 8 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11. 9 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11. 10 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 6 OF 28 appeal, or if she does prevail, it is possible she may recover on the bond.” Id. The trial court

granted the plea to the jurisdiction and the client appealed. Id. at *7.

The First Court of Appeals reversed and remanded the case. Id. at *13. The court found

that the plaintiff’s “lost opportunity” to immediately execute on the judgment against Nationwide

was at least some injury caused to the plaintiff regardless of whether said injuries were merely

hypothetical or still undetermined. Id. at *14 (“The loss of that benefit, whatever it may

ultimately be determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”). The

Houston Court of Appeals noted that even if the damages were speculative, that issue was more

appropriately obtained by way of summary judgment, not a motion to dismiss. Id. Accordingly,

the Houston Court of Appeals allowed the claim to proceed even without the underlying

litigation to reach a conclusion. See Id.

The Northern District of Texas case Garcia v. Boyar & Miller, P.C., 2007 U.S. Dist.

LEXIS 63432 (N.D. Tex. Aug. 28, 2007) is also instructive. In Garcia, the clients,

undocumented workers, sued their attorneys Boyar & Miller after they failed to file timely

immigration applications. Id. at *3. In response, Boyar & Miller filed a motion to dismiss

arguing, like Defendants herein, that the clients’ claims were not ripe because they had not

exhausted their future administrative remedies and that the applications may be accepted. Id.

More specifically, Boyar & Miller argued that the clients’ claims were “based on speculative

future events and therefore are not ripe” because “they [were] based on the assumption that their

[a]pplications will be denied solely on the ground that they are untimely…” Id. at *14-*15. Thus,

Boyer & Miller contended that the clients had “not exhausted their administrative remedies in an

attempt to adjust their status” and that, should the clients appeal the decision, a “reviewing court

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 7 OF 28 may conclude that the [a]pplications were timely” and therefore, the clients’ malpractice claims

were not ripe. Id. at *15.

In response, the clients in Garcia contended that their malpractice claims were ripe and

not hypothetical because, notwithstanding what any administrative agency or reviewing court

may conclude, as a result of Boyer & Miller’s conduct “there is very little likelihood that [they]

will ever obtain permanent residency or United States citizenship, [they] can expect to be

deported, and [they] must begin the application process anew, facing the long delays and

improbabilities that accompany the process.” Id. at *18 (emphasis added). The Garcia court

rejected Boyer & Miller’s ripeness and failure-to-appeal argument, stating “plaintiffs have

alleged that they will be unable to cure insuperable impediments to obtaining lawful

permanent residency through the administrative process, except by remaining outside the United

States for ten years and initiating the adjustment process anew.” Id. at *20-*21. Thus, the delay

caused to the clients was sufficient to demonstrate ripeness of clients’ claims. Id.

Just as the plaintiff in Vanderweyst, Plaintiffs’ have lost the benefit and opportunity to

pursue their claims in the United States in a timely fashion. “The loss of that benefit, whatever it

may ultimately be determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14. Moreover, similar to the clients in Garcia,

Plaintiffs will suffer long delays in the resolution of these claims in Mexico, if any, and the

“improbabilities that accompany the process” of refiling the claims in Mexico or proving their

claims through Mexican discovery rules. Garcia, 2007 U.S. Dist. LEXIS 63432 at *20-21.

Caselaw outside Texas on ripeness of legal malpractice claims is consistent with the

Texas law cited by Plaintiffs’ herein. For instance, the Connecticut Supreme Court case Mayer v.

Biafore, Florek & O'Neill, 245 Conn. 88, 89 (Conn. 1998) is directly on point and supports

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 8 OF 28 Plaintiffs’ common-sense argument that one does not need to file clearly barred underlying

claims prior to instituting a malpractice case. The sole issue in Mayer was nearly identical to the

issue at hand: whether the plaintiff “must obtain a judicial determination that the statute of

limitations bars his claim for uninsured motorist benefits before he can bring th[e] legal

malpractice action against the [the defendant lawyers].” Id. at 89. The court echoed Plaintiffs’

contentions in this case: “there is no need for a prior determination that the statute of limitations

has run as a condition precedent to the plaintiff pursuing th[e] case.” Id. at 93.

In Mayer, the client sued the lawyers alleging that they failed to file an action against his

automobile insurance carrier, Aetna, for uninsured motorist benefits. Id. The lawyers, like

Defendants in this case, argued that the claims were not ripe because, if the client continued to

pursue the underlying claim, “he still might prevail in an action against Aetna for uninsured

motorist benefits.” Id. at 90. More specifically, the lawyers asserted the same “we don’t know

what a court will do” argument that the Defendants argue herein:

[T]he defendants argue that Aetna may choose not to raise the statute of limitations as an affirmative defense. Therefore, they contend that until a court determines, after the statute of limitations defense is asserted by Aetna, that the statute of limitations has run, the plaintiff's malpractice action against the defendants is not ripe for adjudication.

Id. at 91. The trial court granted the motion and the appellate court affirmed concluding that

“because the plaintiff’s claim against Aetna has not been adjudicated, and consequently no

determination has been made that the plaintiff is time barred from pursuing his claim against

Aetna, no actual controversy exists between the parties in this dispute.” Id.

In reversing the trial court and the court of appeals, the Connecticut Supreme Court held

that an “antecedent determination by a court that the plaintiff’s uninsured motorist action against

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 9 OF 28 Aetna is time barred is unnecessary…” Id. Through well-reasoned analysis equally applicable to

this case, the Mayer court explained:

The fact that the defendants contest the issues of causation and damages does not require the plaintiff first to file an action against Aetna. Merely because the issues in this case concern claims between a party and a nonparty does not require such an action. To require the plaintiff to obtain a separate ruling that his uninsured motorist action is time barred does not further judicial economy… All legal malpractice cases are based on underlying rights, for which the plaintiff originally sought legal representation. To require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer. Here, because the trier of fact hearing the plaintiff's malpractice case must determine, on the basis of proper instructions as to the law [i.e. expert testimony], whether an uninsured motorist action is time barred, there is no need for a prior determination that the statute of limitations has run as a condition precedent to the plaintiff pursuing this case.

Id. at 92 (emphasis added). Thus, the Mayer court rejected the ripeness contentions and reversed

the lower courts. Id.

The same rationale applies to this case. Defendants argue, without citing a single

Mexican legal authority, that the present claims are not ripe because Plaintiffs may still be able

to file their claims in Mexico and there has been no determination that the claims are actually

barred by limitations. Yet, Plaintiffs contend that these claims may not be refiled in Mexico due

to the negligence of Defendants because, among other things, the claims are barred by

limitations. Consistent with Mayer, “the trier of fact hearing the plaintiff's malpractice case must

determine,” supported by the proper expert testimony, “whether [the underlying] action is time

barred, [and] there is no need for a prior determination that the statute of limitations has run as a

condition precedent to the [Plaintiffs] pursuing this case.” Id.; See also Finch v. Tooher,Wocl &

Leydon, LLC, 2010 U.S. Dist. LEXIS 136958, at *3 (D. Conn. Dec. 28, 2010)(client’s

malpractice case against lawyer was ripe even while underlying suit was still pending, noting

that “[a]lthough the resolution of the [underlying case] may have an impact on the quantity of

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 10 OF 28 damages [the client] may be able to recover from the firm, this suit is nevertheless still ripe for

review now.”); Augman v. Colwart, 874 So. 2d 191, 194 (La.App. 1 Cir. Feb. 23, 2004)(client’s

claim against attorney was ripe even though underlying case had not yet gone to trial); In re

Street, 283 B.R. 775, 777 (Bankr. D. Ariz. 2002)(client’s claim against lawyer for failing to

properly prepare deed of trust was ripe even though a separate lawsuit relating to the

appropriateness of the deed of trust was pending because client incurred costs in remedying

lawyers’ errors); Schaeffer v. Kessler, Civ. No. 12-8576 PKC, 2013 U.S. Dist. LEXIS 38781,

2013 WL 1155587, at *11 (S.D.N.Y. March 20, 2013)(legal malpractice claim against attorney

for drafting fraudulent contracts was “ripe for adjudication” even though attorney had filed suit

to enforce those contracts because and “even if not all of the possible damages resulting from his

alleged malpractice have materialized.”).

Legal malpractice cases are unique in the ripeness context because they necessarily

require the fact finder to consider a hypothetical set of facts to establish causation. See

Alexander, 146 S.W.3d at 122 (requiring fact finder to decide what a judge would have decided

in the underlying case under hypothetical circumstances). “[B]ecause of the backward-looking

nature of a legal malpractice claim, the question [of causation] is posed in a merely hypothetical

sense…” Wonders v. Johnson, 2013 Tex. App. LEXIS 8750 (Tex.App. – Houston [1st Dist.] July

16, 2013, no pet.)(citing Gunn v. Minton, 133 S. Ct. 1059, 1068 (U.S. 2013)). With causation in a

legal malpractice case “posed in a merely hypothetical sense”, Plaintiffs may demonstrate what

would have happened had their underlying claims been properly prosecuted through expert

testimony. Alexander, 146 S.W.3d at 122. Indeed, as noted by the Texas Supreme Court in

Alexander, it is this very expert testimony that converts proximate causation in a malpractice

case from mere speculation to reasonable legal probability. See Id. at 120 (“without competent

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 11 OF 28 expert testimony in a trial malpractice case demonstrating that the result of the underlying

proceeding would have been different but for the alleged negligence, the factfinder would be

compelled to speculate as to proximate causation.”)(internal quotations omitted).Plaintiffs’

claims in this case became ripe when the case was dismissed from the United States thereby

subjecting Plaintiffs’ to the detriments of a Mexican court11 and, further, after Defendants failed

to prosecute Plaintiffs’ Mexico cases diligently and in good faith thereby causing the statutes of

limitations to lapse on Plaintiffs’ Mexico claims.12 See Vanderweyst, 2003 Tex. App. LEXIS

8549, at *4. Simply put, Plaintiffs’ have alleged some injury – their lost benefit – which is

already established and concrete and Plaintiffs are not required to re-file clearly barred claims in

Mexico.13 See Id. at *14; Garcia, 2007 U.S. Dist. LEXIS 63432 at *20-21; Mayer, 245 Conn. at

89.

C. THE LOSS OF PLAINTIFFS’ JONES ACT AND GENERAL MARITIME CLAIMS CONSTITUTE FURTHER INJURY.

As discussed above, the dismissal of Plaintiffs’ Jones Act claims was not interlocutory; it

was final when the entire United States lawsuit was dismissed. This final dismissal of Plaintiffs’

United States lawsuit caused the loss of their Jones Act and general maritime law claims.

Defendants contend that Plaintiffs’ damages relating to the loss of these claims does not

constitute injury because (1) the claims were dismissed without prejudice and may be refiled

pursuant to the “return jurisdiction” clause should a Mexico court decline jurisdiction; and (2)

the Jones Act claims are inapplicable to Plaintiffs – Mexican nationals – because Plaintiffs have

a remedy under Mexican law.14 Both arguments are unavailing.

11 See, generally, Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 12 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 12-13. 13 See, generally, Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 14 ARNOLD & ITKIN REPLY, at p. 9-10.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 12 OF 28 First, Plaintiffs cannot now file their case in Mexico.15 While Plaintiffs’ pleadings are

sufficient to demonstrate this fact, Plaintiffs have retained Mr. Dahl and Mr. Muria, the two

aforementioned Mexican law experts, to shed further light on this subject.16 Mr. Dahl is licensed

and has been admitted to practice law in Texas, New York, Washington, D.C., Buenos Aires,

Argentina and Madrid, Spain.17 Mr. Dahl holds a J.D. and an LL.D. degree from Buenos Aires

University, an L.L.M. from London University and is an expert in the field of comparative law. 18

Although Mr. Dahl is not licensed in Mexico, he was an adjunct professor of Mexican law at

SMU school of Law and since 1993 has undertaken a “deep and continuous study of how [forum

non conveniens] interacts with legal systems in Latin America, including Mexico…”19 As the

Secretary General of the Inter-American Bar Association and General Editor of its Law Review,

Mr. Dahl has consulted with and studied among Mexican Bars and Mexican attorneys on a

variety of issues of Mexican law.20 Mr. Dahl supports his opinions in the joint affidavit through

testimony from Mr. Muria, a practicing Mexican attorney and law professor at the University of

Guadalajara who teaches, among other subjects, conflict of laws.21

It is Mr. Dahl and Mr. Muria’s opinion that Mexico would not accept jurisdiction of this

case.22 It is Mr. Dahl and Mr. Muria’s further opinion that, due to Defendants’ delay, any

opportunity for Plaintiffs to refile these claims in Mexico has now passed and the claims are

barred by limitations.23 This is one of the reasons why a Mexico court would not accept

15 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 16 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1. 17 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1. 18 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1. 19 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1. 20 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 1. 21 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 2. 22 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 4-10. 23 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 11-13.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 13 OF 28 jurisdiction of these claims even if they were to be refiled.24 Moreover, the “return jurisdiction”

clause does not then permit Plaintiffs to refile the case in the United States because Judge Ward

conditioned the continued jurisdiction on Defendants’ good faith effort to prosecute the cases in

Mexico:

Should the courts of Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’ refusal to pursue an action or to comply with the procedural requirement of Mexican courts, this Court may reassert jurisdiction upon timely notification of the same.25

Plaintiffs contend in their pleadings (and as supported by the affidavit of Mr. Dahl and Mr.

Muria) that the Defendants’ “refusal to pursue the action” in Mexico caused the claims to be

forever barred in Mexico by limitations.26 At this stage, the Court must take these allegations as

true unless Defendants can conclusively rebut them and show that, even on the face of the

pleadings, the court is deprived of jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53,

56 (Tex. App. – Houston [14th Dist.] 2005, no pet.). Defendants’ have failed to do so and their

conclusory, self-serving and unsupported arguments that the claims are not barred in Mexico or

that a federal court will still accept jurisdiction despite their own lack of diligence are conclusory

and unmeritorious.

With the Jones Act and general maritime claims clearly barred to refiling, the issue

becomes whether they would have been successful. In their petition, Plaintiffs allege that the

Defendants “failed to allege that there was no available remedy in Mexico, as required to pursue a

federal maritime claim under the Jones Act.”27 These allegations must be taken as true. Davies, 158

S.W.3d at 56. Defendants argue in their Reply that Plaintiffs have not suffered an injury because

24 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 25 See PLAINTIFFS’ RESPONSE, at Exhibit A, p. 27 (emphasis added). 26 See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11. 27 See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 14 OF 28 Plaintiffs allegedly have a remedy under Mexican law and, if they do not, Plaintiffs may refile

these claims in federal court.28 This argument ignores the reality of the situation.

It is Plaintiffs’ contention as set forth in the pleadings that they have no remedy in

Mexico.29 This contention is supported by the opinions of Mr. Dahl and Mr. Muria, experts in

this field.30 Even if a Mexico court rejects jurisdiction, Plaintiffs could not refile their Jones Act

and maritime claims in the district court because these claims were finally dismissed on April 20,

2011 when Judge Ward entered the order dismissing the case on forum non conveniens grounds.

See Koke, 730 F.2d at 214. “The pertinent statutes of limitations provide that claims under the

Jones Act and general maritime law are time-barred unless commenced within three years from

the day the cause of action accrued.” Jones v. Tidewater Marine LLC, 262 Fed. Appx. 646, 648

(5th Cir. La. 2008)(internal quotations omitted). Thus, even taking the April 20, 2011 dismissal

date as the date when limitations would begin accruing, Plaintiffs’ Jones Act and general

maritime law claims were barred by April 20, 2014. See Id.

The wavier of limitations executed by Defendants is immaterial and did not act to toll

these claims. First, the underlying defendants only agreed to waive limitations in the event that

Plaintiffs refiled the case in Mexico, not the United States.31 Moreover, this waiver of limitations

would be invalid under Texas and federal law because it was not specific and did not provide for

a pre-determined length of time. See Hoff v. Texas Med. Liab. Trust, 1998 Tex. App. LEXIS

2219, at *8 (Tex.App. – Austin Apr. 16, 1998, pet. denied)(affirming summary judgment in

medical malpractice case on statute of limitations ground because a waiver of limitations was

void as against public policy because it was not specific and did not provide for a pre-determined

28 ARNOLD & ITKIN REPLY, at p. 10. 29 See PLAINTIFFS’ SECOND AMENDED PETITION, p. 11. 30 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 31 See PLAINTIFFS’ RESPONSE, at Exhibit F, p. 1-2.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 15 OF 28 length of time). Plaintiffs’ pleadings, which must be taken as true, are sufficient to demonstrate

this fact and, even if the damages alleged are speculative, this is “fodder for a summary judgment

motion, not a dismissal for lack of ripeness in a plea to the [trial court's] jurisdiction.”

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15.

D. PLAINTIFFS’ PLEADINGS DEMONSTRATE THAT, HAD SUFFICIENT ARGUMENT AND EVIDENCE BEEN PRESENTED IN RESPONSE TO THE FORUM NON CONVENIENS MOTION, THE OUTCOME WOULD HAVE BEEN DIFFERENT.

Plaintiffs allege that, had certain substantive argument and evidence been presented to the

underlying court in response to the forum non conveniens motion, the Eastern District of Texas

federal court would not have granted the forum non conveniens motion and allowed, at

minimum, Plaintiffs’ Mexico claims to proceed.32 In fact, the Eastern District of Texas did rule

differently under similar circumstances when the proper evidence, expert testimony and

argument were presented. Sacks v. Four Seasons Hotel Ltd., 2006 U.S. Dist. LEXIS 17768 (E.D.

Tex. Mar. 7, 2006).33 Nonetheless, Defendants argue the Sacks opinion is immaterial because the

Mexican law experts in Sacks, including one of Plaintiffs’ experts in this case, Mr. Dahl, were

allegedly “discredited, and, in the end, were not relied upon by the court.”34 This statement is

completely inaccurate and false.

After the court in Sacks denied the defendants forum non conveniens motion, the

defendants requested the court to reconsider its decision, arguing that one of the plaintiffs’

experts, Mr. Pereznieto, should be discredited due to alleged fraud in a separate proceeding.35

The defendants also argued that the opinions of Mr. Dahl, who was a second expert for the

32 PLAINTIFFS’ SECOND AMENDED PETITION, p. 8. 33 This is the same court that granted the motion and dismissed the underlying case because Defendants failed to make these arguments. 34 ARNOLD & ITKIN REPLY, at p. 14. 35 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 12.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 16 OF 28 plaintiffs in Sacks, should likewise be discredited because his affidavit was influenced by the

opinions of Mr. Pereznieto.36 Although the Magistrate Judge was not convinced that Mr.

Pereznieto’s alleged fraud in another case necessitated complete disregard of his opinions, the

Magistrate did so out of an abundance of caution.37 However, despite Defendants’ contentions in

their Reply, the Magistrate considered the expert opinion from Mr. Dahl reliable.38

Specifically, the Magistrate stated “the Court is not convinced Dahl’s opinions, as an

independent expert on Mexican law, are inextricably linked to Pereznieto’s fraud in the Indiana

case as to invalidate Dahl’s opinions in this case.”39 Thus, the Magistrate Judge specifically

considered Mr. Dahl’s opinions, including (1) that the effect of forum non conveniens violates

Mexican law; (2) how after a case is filed in the United States, Mexican jurisdiction is

preempted; (3) how procedural rights that may be subject to negotiation in the United States

cannot be agreed to by the parties in Mexico; and (4) the lack of jurisdiction over non-residents

in Mexico.40 Mr. Dahl’s opinions provided in this case are consistent with those he provided in

Sacks but are further supported by Mr. Muria, a Mexican attorney and law professor. Thus, the

Magistrate found that Mr. “Dahl’s affidavit provide[d] adequate support for the Court’s

conclusion regarding the lack of an available forum in Mexico.”41

Having considered Mr. Dahl’s affidavit, the Magistrate found that Mexico was not an

available forum because the claims were barred by limitations and the “tolling statute only

applies to lawsuits filed within the territories of Mexico.”42 The Magistrate also relied upon Mr.

Dahl’s affidavit to conclude that “stipulations made before a United States court to waive the

36 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13. 37 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13. 38 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13. 39 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13. 40 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13-14. 41 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 14. 42 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 14.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 17 OF 28 Mexican statute of limitations are meaningless in Mexico.”43 The Magistrate, citing further to

Mr. Dahl’s affidavit, also found Mexico to be an unavailable forum because Mexico cannot

accept jurisdiction “no matter how adamantly Defendants want to submit themselves to the

jurisdiction of the Mexican court…”44 Simply put, the Magistrate in Sacks heavily considered

Mr. Dahl’s affidavit in affirming her denial of the defendants’ forum non conveniens motion.45

The Defendants in this case argue that the district court in Sacks “upheld the denial of the

forum non conveniens motion in that case, but in doing so the court disregarded the Mexican law

opinions Plaintiffs herein attempt to rely upon because of the evidence discrediting them.”46 This

is incorrect as the court in Sacks affirmed the Magistrate’s exclusion of Mr. Pereznieto’s

opinions but relied on Mr. Dahl’s opinions to find that Mexico is not an available forum:

The Magistrate Judge properly removed from her consideration all of Dr. Pereznieto’s opinions and found Nayarit, Mexico is not an available and adequate alternative forum. Each finding, alone, prevents a dismissal of this case.

Sacks v. Four Seasons Hotel Ltd., 2007 U.S. Dist. LEXIS 98050, at *9 (E.D. Tex. Sept. 10,

2007)(emphasis added). Regardless, the objections to Mr. Dahl’s affidavit at issue in Sacks – that

he relied on a discredited Mexican law expert – are not at issue in this case because Mr. Dahl’s

affidavit is supported by that of Mr. Muria, a Mexican attorney and law professor.47

In further effort to rebut Plaintiffs’ inadequate forum argument, Defendants contend that

“Plaintiffs do not cite a single case where a court has held that such a waiver of limitations is

invalid or unenforceable under Texas or federal law.”48 Yet, Defendants confuse the burden.

Plaintiffs’ pleadings allege that the waivers of limitations are invalid and these allegations must

43 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 15. 44 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 15. 45 Exhibit “B” – Sacks June 7, 2007 Report & Recommendation, at p. 13-18. 46 ARNOLD & ITKIN REPLY, at p. 14. 47 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 48 ARNOLD & ITKIN REPLY, at p. 15.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 18 OF 28 be taken as true. Davies, 158 S.W.3d at 56. If the waivers are invalid, then Plaintiffs may not

refile their claims in Mexico and, as a result, Plaintiffs’ claims are ripe.

Defendants further allege that “[c]ourts routinely require defendants who move for forum

non conveniens to waive statute of limitations defenses as a condition to granting their motion.”49

Yet, the cases cited by Defendants either did not discuss the language of the waivers, See Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 242 (U.S. 1981), or failed to discuss the validity of the

waivers under the foreign law. See Taylor v. Tesco Corp. (US), 754 F. Supp. 2d 840, 849 (E.D.

La. 2010). Again, for an agreement to waive limitations it “must be specific and for a

predetermined length of time” and “[a] general agreement in advance to waive or not plead the

statute of limitations on a particular obligation is void as against public policy. See Lett, 2015

U.S. Dist. LEXIS 14627, at *10, n. 2. Defendants argue that “this Court is not the proper forum

to speculate about whether a hypothetical court in Mexico would accept the stipulations filed by

the [underlying defendants].”50 Plaintiffs agree. In this malpractice case it is the jury (not this

Court) who must decide what a court (Mexico or otherwise) would have done in the underlying

case under hypothetical circumstances. See Alexander, 146 S.W.3d at 122.

E. GUNN V. MINTON AND RANGEL V. LAPIN SUPPORT PLAINTIFFS’ POSITION.

In their Further Reply, Defendants contend that Gunn v. Minton, 133 S. Ct. 1059 (2013)

and Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) do not

support Plaintiffs’ position because “both show that … Plaintiffs may not prove causation by

offering expert testimony about the hypothetical outcome of the unresolved underlying case.”51

In the same breath, Defendants acknowledge that in Minton, the state court was required to

decide “the hypothetical case within the case” and that, no matter this decision, “the real-world

49 ARNOLD & ITKIN REPLY, at p. 14-15. 50 ARNOLD & ITKIN REPLY, at p. 16.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 19 OF 28 result of the prior federal patent litigation will not change.”52 Nonetheless, Defendants contend

that Minton is distinguishable because the underlying case had been finally resolved and “the

final resolution of the patent case was essential to the outcome in Minton.”53 Defendants are

mistaken.

Just as in Minton, Plaintiffs must prove causation in a hypothetical sense because their

underlying United States case has been finally dismissed. There is evidence that they may not

now be re-filed in Mexico due to, among other reasons, lack of diligence and limitations.54 The

delay in re-filing was caused by Defendants’ “refusal to pursue an action” in Mexico and thus,

the “return jurisdiction” clause is inapplicable here.55 With the underlying claims final, the same

“hypothetical case within a case” discussed in Minton will be applicable. The jury’s resolution of

the malpractice claim will not reverse “the real-world result” of Defendants’ failure to properly

handle these claims in the first instance.

Defendants also contend that Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) “supports the arguments made by Defendants in this suit” i.e. that

“Plaintiffs cannot use expert testimony to prove causation when they have not, in fact, lost out on

the opportunity to proceed with the underlying case.”56 Rangel undoubtedly supports Plaintiffs’

position because in Rangel, the underlying case that the client alleged he lost due to the lawyer’s

conduct was never even filed. Id. at 19-20. In that case, the client was involved in an automobile

collision. Id. at 19-20. The client hired the attorneys to represent him in a lawsuit against the

other vehicles driver. Id. at 20. The law firm agreed, but later withdrew from this representation

after it discovered that no party carried insurance. Id. The client then, without even attempting

51 See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 1. 52 See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 2 (emphasis added). 53 See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 2 54 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 20 OF 28 to bring a lawsuit against Honda, sued the lawyers alleging that their erroneous advice to sell

the Honda that he was driving “prevented him from pursuing a products liability case against

[Honda] with respect to the Honda Accord’s passive restraint system.” Id.

Although a court was free to consider its own jurisdiction, See Waco Indep. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 850 (Tex. 2000), the Houston Court of Appeals did not dismiss the

malpractice claims as unripe because the lawsuit against Honda had never even been attempted.

See Rangel, 177 S.W.3d at 20. Rather, the Rangel court implicitly indicated that the case was

ripe for review and acknowledged that “one proves causation in a legal malpractice suit by

expert testimony.” Id. at 22. “Here, the underlying case against Honda required expert testimony,

to show that [the client] would have prevailed against Honda, had the suit properly been

prosecuted.” Id. Because the client did not provide expert testimony to support the underlying

product liability case, the Rangel court held that the client “failed to raise a material fact issue on

the suit-within-a-suit causation element of his legal malpractice claim.” Id. at 23. Like the client

in Rangel who was not required to file the products liability suit clearly lost by the lawyers’

conduct, Plaintiffs are not required to file their clearly-barred claims in Mexico. See Id. Plaintiffs

need only prove their damages through expert testimony on causation. Id. at 22. Defendants’

contention that “Mexican courts may accept [Plaintiffs] lawsuit given the waiver of limitations”

is immaterial to this Court’s jurisdiction. See Mayer, 245 Conn. at 92 (“because the trier of fact

hearing the plaintiff's malpractice case must determine … whether an [underlying] action is time

barred, there is no need for a prior determination that the statute of limitations has run as a

condition precedent to the plaintiff pursuing this [malpractice] case.”).

55 See PLAINTIFFS’ RESPONSE TO DEFENDANTS’ PLEA TO THE JURISDICTION, at Exhibit A, p. 27 (emphasis added). 56 See BECK REDDEN DEFENDANTS’ FURTHER REPLY, p. 3.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 21 OF 28 F. ABATEMENT IS NOT APPROPRIATE BECAUSE PLAINTIFFS ARE NOT REQUIRED TO FILE THEIR CLEARLY-BARRED CLAIMS IN MEXICO.

Plaintiffs agree with Defendants that “the viability of the malpractice action depends on

the outcome of the underlying litigation.”57 The fundamental disagreement, however, concerns

whether the underlying proceedings have been concluded. As discussed above, the underlying

claims in the United States reached their conclusion in April of 2011 and Plaintiffs’ claims in

Mexico are now time barred.58 Defendants’ unsupported assertion that the claims may still be

filed in Mexico because of the waivers of limitations are not evidence sufficient to overcome

Plaintiffs’ pleadings and expert opinions from Mr. Muria and Mr. Dahl. See In re Manion, No.

07-08-0318-CV; 2008 Tex. App. LEXIS 6813, 2008 WL 4180294 *7 (Tex. App. – Amarillo

Sept. 11, 2008, orig. proceeding) (memo. op.)(“statements of counsel are not evidence”).

Abating this case would be equal to dismissing it for lack of jurisdiction because either

way the Court would be requiring Plaintiffs to re-file clearly time barred claims in Mexico or,

subsequently, the federal district court and subject themselves to paying costs of the litigation in

Mexico59 or Rule 11 sanctions. See Comer v. Interstate United Corp., 119 F.R.D. 392, 393 (N.D.

Ill. 1988). The mere fact that Plaintiffs are required to carry out this hopeless endeavor rather

than immediately purse their claims in the United States – which is what Plaintiffs would have

been able to do “but for” Defendants’ negligence – underscores the salient fact that Plaintiffs

have suffered at least some injury as a result of Defendants’ negligence. See Vanderweyst, Tex.

App. LEXIS 8549, at *4. And even a slight injury is sufficient for this Court to maintain

jurisdiction over these claims. Id.

57 ARNOLD & ITKIN REPLY, at p. 16. 58 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, at p. 13. 59 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 22 OF 28 Defendants argue that Plaintiffs have failed to offer “any valid reason that this Court

should not follow the precedent of Philips, Texas Collegiate and Rothrock v. Akin, Gump, Hauer

& Feld, 1994 WL 183318 *7 (Tex.App. – Dallas 1994, no pet.), which Plaintiffs do not even

attempt to distinguish.”60 Yet, as noted in Plaintiffs’ Response, the Court need not follow Texas

Collegiate because in that case it was undisputed that the malpractice claims were premature as

the underlying litigation had not concluded. Tex. Collegiate, 367 S.W.3d at 465 (“Wolf does not

dispute that the malpractice claims are premature or that the trial court could have chosen to

abate the malpractice claims.”)(emphasis added). Here, Plaintiffs’ contend that the underlying

litigation has, in every practical sense, concluded.

Similarly, the Court does not need to follow Philips because, unlike the plaintiff in

Philips who did not know whether she would incur any tax liability, Plaintiffs have already

incurred at least some injury caused by Defendants’ negligence. Philips, 620 S.W.2d at 751

(“Since it has not been determined whether relator is liable for the taxes in question, she has not

been harmed and, therefore, her cause of action has not accrued.”). At minimum, Defendants’

failure to properly handle the forum non conveniens motion injured Plaintiffs by depriving them

of their right to initiate their Mexican law claims in the United States where they would not be

hampered by the limited-to-non-existent discovery and procedural rules of Mexico.61 See

As to Rothrock v. Akin, Gump, Plaintiffs did not waste the ink to distinguish this case in

their initial Response because it is patently distinguishable on its face. The only abatement at

issue in that case dealt with an “agreed order which abated the lawsuit so that the proper DTPA

notices could be delivered and acted upon.” Rothrock, 1994 Tex. App. LEXIS 3526 at *8.

60 ARNOLD & ITKIN REPLY, at p. 18. 61 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 23 OF 28 Further, the case does not discuss ripeness, and the only issue even remotely relating to

jurisdiction concerned the trial court’s jurisdiction to grant summary judgment against a party

not before the court. Id. at *33 (“it was error to render judgment against him because the trial

court lacked jurisdiction over the trustee and his claims.”). It is baffling why Defendants even

cited Rothrock in the first instance.

Defendants’ next argue that various “practical concerns” support their abatement request

because, if the case is not abated to allow Plaintiffs to refile their claims in Mexico, Defendants

would have to inquire “into the advice given by Plaintiffs’ current counsel, and whether they

bear any responsibility to the extent any of Plaintiffs’ underlying claims are ‘lost.’”62 Such

arguments are at best red herrings and at worst patently and intentionally misleading. First, the

undersigned counsel was not hired to re-file the underlying claims; Defendants were and have

had this opportunity since April 2011. Second, it is no secret that Plaintiffs have not refiled their

claims in Mexico because they understand (and, in fact, have expert opinion) that these claims

are now barred by limitations due to Defendants’ gross malfeasance.63 Defendants do not, as they

contend, need to probe into the privileged mental impressions of Plaintiffs’ current malpractice

counsel to determine why Plaintiffs “are not pursuing th[e] claims in Mexico at all.”64 These

claims are barred and were barred prior to the retention of the undersigned counsel or the

initiation of this lawsuit months ago. Thus, Plaintiffs’ malpractice counsel could in no way “bear

any responsibility” for the loss of Plaintiffs’ underlying claims. Defendants’ threat to seek clearly

privileged information is specious.

On the other hand, abating or dismissing this case and requiring another attorney to re-

file Plaintiffs’ claims in Mexico will exacerbate Plaintiffs’ already established injuries by

62 ARNOLD & ITKIN REPLY, at p. 19. 63 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 24 OF 28 subjecting Plaintiffs to further attorney’s fees to pursue these barred claims and, perhaps, costs

and sanctions for filing a frivolous lawsuit.65 In fact, Mr. Dahl and Mr. Muria have opined that

“[i]f an attempt were made to file the underlying lawsuit once again in Mexico, it would

certainly be dismissed due to the statute of limitations” and Plaintiffs, as the defeated party,

“would likely have to pay the adversary’s costs, as determined by the Federal Code of Civil

Procedure…”66 Defendants in this case may then have a legitimate responsible third party

argument or at least would argue some superseding or intervening cause on the part of the new

lawyer, further complicating these matters.

Defendants contend that “[i]t is not appropriate to engage in a battle of experts about

what might happen if Plaintiffs were to pursue their underlying claims to resolution.”67 But

Defendants know full well that Plaintiffs’ underlying claims have been dismissed in the United

States and are doomed in Mexico.68 To quote Kurt Arnold “the chances of the Court accepting

the jurisdiction for these cases even after following all steps [and refiling the cases in Mexico] is

remote.”69 That is why they withdrew from the representation in October 2014 and “urge[d]

[Plaintiffs] to seek the advice of Mexican Counsel concerning refiling these cases in Mexico to

see if the Courts will accept jurisdiction consistent with the requirements of the Eastern District

of Texas order.”70 Mexican counsel has indicated that a Mexico court will not accept jurisdiction

due to Defendants’ malfeasance and these claims are ripe for adjudication.71 Suddenly, after

64 ARNOLD & ITKIN REPLY, at p. 19. 65 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 66 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl, p. 13. 67 See ARNOLD & ITKIN REPLY, at p. 19. 68 See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients. 69 See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients (emphasis added). 70 See PLAINTIFFS’ RESPONSE, at Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients. 71 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 25 OF 28 being sued, Mr. Arnold shamelessly shifts to a contrary position simply because it is

convenient.72

Causation in malpractice cases are often a “battle of the experts.” See Creech v. Columbia

Med. Ctr. of Las Colinas Subsidiary, L.P., 411 S.W.3d 1, 14-15 (Tex. App.—Dallas 2013, no

pet.)(medical malpractice case); Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth

2005, pet. denied) (en banc)(medical malpractice case); see also Alexander, 146 S.W.3d at 120.

“It is particularly within the jury’s province to weigh opinion evidence and the judgment of

experts.” Creech, 411 S.W.3d at 15. In the legal malpractice context, expert testimony is what

converts mere speculation as to what would have happened in the underlying case into actual

causation. See Alexander, 146 S.W.3d at 120. Abating this case to require Plaintiffs to obtain a

ruling on whether their Mexican claims are barred would be prejudicial to Plaintiffs as Mr. Dahl

and Mr. Muria have opined that “it would be impossible to obtain a Mexican attorney willing to

take the underlying lawsuit on a contingency basis since it is so obviously vulnerable to the

statute of limitations.”73 Such a course of action would be a waste of judicial resources and

significant time, as the federal Mexican legal process can take up to five years. 74 The re-filing

serves no legitimate interest and, more importantly, is not required under the law. See Garcia,

2007 U.S. Dist. LEXIS 63432, at *18; Mayer, 245 Conn. at 92 (“because the trier of fact hearing

the plaintiff's malpractice case must determine … whether an [underlying] action is time barred,

there is no need for a prior determination that the statute of limitations has run as a condition

precedent to the plaintiff pursuing this [malpractice] case.”).

72 The Texas Supreme Court has admonished such conduct, stating “for the law to countenance this abrupt and shameless shift of positions would give prominence (and substance) to the image that lawyers will take any position, depending on where the money lies, and that litigation is a mere game and not a search for truth.” Mallios v. Baker, 11 S.W.3d 157, 163 (Tex. 2000)(internal quotations omitted).

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 26 OF 28 III CONCLUSION & PRAYER

At minimum, the lost benefit of pursuing the underlying Mexican law claims in a United

States court is at least some “concrete injury” which has already occurred and is not contingent

on any future event, thereby rendering these claims ripe. See Vanderweyst, 2003 Tex. App.

LEXIS 8549, at *14-*15. For this reason, and the reasons set forth in Plaintiffs’ Response and

herein, Defendants’ Pleas to the Jurisdiction and Alternative Pleas in Abatement should be

denied.

WHEREFORE, Plaintiffs pray that the Court deny Defendants’ Pleas to the Jurisdiction

and Alternative Pleas in Abatement and grant Plaintiffs any further relief, at law and in equity to

which Plaintiffs may show themselves to be justly entitled, to which the Court believes Plaintiffs

73 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl. 74 Exhibit “A” – Joint Affidavit of Aranau Muria and Henry Saint Dahl.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 27 OF 28 Respectfully submitted,

/ s / David Eric Kassab LANCE CHRISTOPHER KASSAB Texas State Bar No. 00794070 lck@texaslegalmalpractice.com DAVID ERIC KASSAB Texas State Bar No. 24071351 dek@texaslegalmalpractice.com 1420 Alabama Houston, Texas 77004 t.713.522.7400 f.713.522.7410

/ s / Brett Wagner BRETT WAGNER Texas State Bar No. 20654270 brett@dwlawyers.com LARRY JOE DOHERTY Texas State Bar No. 05950000 larry@dwlawyers.com RYAN W. SMITH Texas State Bar No. 24063010 ryan@dwlawyers.com 13810 Champion Forest Drive, Suite 225 Houston, Texas 77069 t.281 583-8700 f.281 583-8701

I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 31st day of August, 2015.

PLAINTIFFS’ SUR-REPLY TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 28 OF 28 EXHIBIT EXHIBIT "A" "A"

AFFIDA VIT OF ARNAU MURIA AND HENRY SAINT DAHL

WASHINGTON, D.C. and : SS GUADALAJARA, MEXICO:

I. My name is Henry Saint Dahl. I am of age, sound of mind and otherwise

competent to sign the present affidavit. As stated with more detail in my resume (attached

as Exhibit 1), I am an attorney-at-law, having been admitted to the practice of law in

Buenos Aires, Argentina (1973), in New York (1982), in Texas (1990), in Madrid, Spain

(I991) and in Washington, D.C. (2003). I have also been admitted to the Bar of the U.S.

District COUli, Northern District of Texas (1996) and to the U.S. Court of Appeals for the

Fourth Circuit (1998).

2. I have a J.D. and an LL.D. degree from Buenos Aires University, where I

studied law between 1968 and 1973. I also hold an L.L.M. from London University,

where I studied comparative law in 1976-1977. I also hold a post-graduate degree from

Leningrad University (now Saint Petersburg University, Russia), where I studied

comparative law in 1977-1979.

3. I have published nine books and approximately forty articles dealing with

international and comparative law. Some of these publications deal extensively with

forum non conveniens ("FNC" from now on). One of my books, Dahl's Law Dictionary

(English and Spanish) (fifth edition, 2010), contains a detailed treatment of Mexican law.

During 1997-1998 I was an adjunct law professor of Mexican law at the SMU School of

Law. Since 1993 I have undertaken a deep and a continuous study of how FNC interacts

with legal systems in Latin America, including Mexico, and in Europe, particularly France. I have been a consultant on the issue of FNC to several Latin American countries,

to France and to the Inter-American Juridical Committee. Until recently, as the Adjunct

Secretary General and Secretary General of the Inter-American Bar Association (IABA)1

and as the General Editor ofthe Inter-American Bar Association Law Review, I have

been in contact with Mexican Bars, Mexican attorneys on a variety of issues of Mexican

law. I am also very familiar with the Spanish and with the French legal systems, the two

main sources of Mexican law.

4. I have worked extensively on cases dealing with FNC, including Mexico,

but these Mexican cases have. now ended .. My FNC work as a practitioner and as an

academic has always been consistent. My statements are based on my personal

knowledge and the translations mentioned below are true and correct.

5. My name is Arnau Muria, I am of age, sound of mind and otherwise

competent to sign the present affidavit. As stated with more detail in my resume (attached

as Exhibit 2), I am an attorney-at-law, admitted to practice in Mexico and in good

standing.

6. Since 2004 I have been a law professor at the University of Guadalajara

where I teach, among other subjects, conflict of laws. Since 2003 I have worked as an

attorney in Guadalajara, in matters related to litigation, to foreign investments and other

legal areas.

1The IABA was founded in 1940 to promote the rule of law and the administration of justice throughout the Americas and to advance the science of jurisprudence, particularly the study of comparative law. It is headquartered in Washington, DC and it has branches and chapters throughout the Americas, including Mexico. More details are available at ww\v. iaba.org

2 7. My work as a law professor and as a practitioner has often put me in

contact with matters of domestic and international jurisdiction, evidence, and

constitutional law among many others. Because of the nature of my practice and my

teaching I am very familiar with Mexican federal law, and the law of the remaining

Mexican States, the latter tending to be very uniform. My statements are based on my

personal knowledge and the translations mentioned below are true and correct.

8. Included in Exhibit 3 are the pertinent report sections from the

Inter-American Juridical Committee (lAJC),2 an official organ of the Organization of

American States, to which.both Mexico and the United States are parties. This report

was drafted by Henry Dahl, at the request ofthe IAJC. Included in Exhibit 4 are the

relevant texts, in their original Spanish, of Mexican Federal Code of Civil Procedure and

of the Federal Civil" Code cited in this affidavit.

9. We have been asked by attorney Lance Kassab, counsel for plaintiffs in

Maria Santos Lopez Dominguez et al. v. Arnold & Itkin, L.L.P. et al., and to prepare a

report on the effectiveness of the defense against the a forum non conveniens defense,

filed in Maria Santos Lopez Dominguez et al. v. Gulf Coast Marine & Associates et al.,

Civil Action NO. 9:08-cv-200 (TJW), from now on referred to as "the underlying

lawsuit".

2 The Inter-American Juridical Committee dates back to the Resolution adopted by the III American Conference held in Rio de Janeiro in 1906. According to the OAS Charter "the pUlpose of the Inter-American Juridical Committee is to serve the Organization as an advisory body on juridical matters; to promote the progressive development and the codification of international Law; and to study juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation." (Art. 99). "The Inter-American Juridical Committee represents all of the Member States of the Organization, and has the broadest possible technical autonomy." (Art. 102).

3 10. We understand that the underlying events took place in Mexican territorial

waters which, from a Mexican point of view, makes Mexican federal law applicable. In

order to form an opinion we have studied the following pleadings filed in the

underlying lawsuit:

• Plaintiffs' Motion to Reinstate the Case with Exhibits; • Defendants'. Joint Response In Opposition to Plaintiffs' Motion to Reinstate Case; • Plaintiffs' Reply In Support of Motion to Reinstate Case; • Defendants' Joint Sur-Reply In Opposition to Plaintiffs' Motion to Reinstate Case; • Judge Clark's May 29,2009 Order Re: Motions to Dismiss For Forum Non Conveniens; • Judge Ward's Memorandum and Order Dismissing the Case; • Judge Ward's Order Dismissing the Case; • Judge Marcia A. Crone May 14,2014 Memorandum and Order.

11. We have reviewed the relevant Mexican law, particularly the Mexican , Federal Code of Civil Procedure; the Federal Mexican Civil Code; and the Mexican

Federal Constitution.

12. We find that the following arguments could have been raised in the

underlying case.

I. Mexico Is Not An Available Forum

13. We are not aware of any Mexican judgment that knowingly accepts the

filing ofa lawsuit pursuant to a FNC dismis~al. FNC is an unknown concept in Mexican

law. The effects of FNC violate Mexican law not only in a strictly juridical sense, but

also politically.' Since the effects of FNC are illegal in Mexico, no jurisdiction attaches

3 FNC is perceived throughout Latin America as "judicial imperialism" where a court of country A determines what will happen in the courts of country B, as the following indicates: "Sovereignty. It is injurious for a country that aforeign judge unilaterally imposes the commission of certain procedural acts in such country, for instance thefiling of a claim." (1999 IAJC Report, at p. 3, see Exhibit 3).

4 pursuant to a FNC dismissal. The Mexican judge cannot provide help in violating his

own legal system. Consequently, Mexico is not an alternative jurisdiction.

1,1. Preemptive Jurisdiction

14. The theory of preemptive jurisdiction, known as competencia preventiva,

is deeply rooted in Mexican law. Even if Mexico had had concurrent jurisdiction, once

one court issues summons, the jurisdiction that the other court might have had is

dissolved. Therefore, no alternative court remains.

15. This principle is established in the Federal Code of Civil Procedure, which

states in its pertinent part as follows:

Article 328.- The effects of summons are: 1. To preempt the lawsuit in favor of the issuing court, II. To bind the defendant to follow the lawsuit with the court that summoned him, if it had jurisdiction at' the time of issuing the summons. [, .. J (Emphasis added. See Exhibit 4 for the original Spanish text).

16. Further, supervening changes that take place after the issuance of

summons, do not alter the jurisdiction acquired through summons:

Article 12.- Changes in factual situations, that take place after the issuance of summons, do not change jurisdiction. (See Exhibit 4 for the original Spanish text).

17. Thus, under Mexican law, the filing before the U.S. Court preempts

Mexican jurisdiction.

18. The 2000 tAlC Report describes the impact of preemptive jurisdiction on

a filing resulting from an FNC dismissal as not generating jurisdiction in the Mexican

court.

"Even when there is concurrent jurisdiction, the claim filed before one court I extinguishes the jurisdiction of the other court." (At pp. 2 - 3, see Exhibit, 3). k

5 19. The principle of preemptive jurisdiction is uniformly followed in Mexico,

and it applies to international as well as to domestic cases. The Supreme Court of Mexico

issued a ruling in 1989, concerning conflict of jurisdictions between two Mexican States,

but equally applicable to international cases since the Mexican norms in question are the

same. In this decision, attached as Exhibit 5, the Supreme COUl1held that "jurisdiction

shall lie in the defendant's domicile [... ] if there were several defendants with different

domiciles, the procedural rules [of Mexican-States] agree that the court of the domicile

of one of the defendants, as chosen by plaintiff, shall havejurisdiction," The Supreme

Court concludes by holding that "when jurisdictional rules grant jurisdiction to several

courts, the one hearing the case first shall preempt the others."

III. Mexican Procedural Law Tends to Be Nonnegotiable

20. Mexican law, including of course its notion of jurisdiction, cannot be modified by stipulations, as the Federal Code of Civil Procedure states:

Article 3.- The reciprocal relationships between the parties, inside the proceeding, with their respective rights and duties as well as terms, challenges, and all types of measures that this Code grants, the parties, their actions in the case, cannot be modified, in any way, due to laws or statutes relative to the way of operating, or by one of the parties being special, whether plaintiff or defendant. At any rate, the principle of equality between the parties must be observed within the proceeding, even if the parties' role becomes inverted during the case. (Emphasis added). (See Exhibit 4 for the original Spanish text).

21. Accordingly, stipulations made before a U.S. court are completely

meaningless in Mexico:

"The promises made to a foreign court [e.g. a U.S. Court] about the wish to submit to a Latin American jurisdiction do not generate jurisdiction in Latin America. SUGhpromises, regardless of how sincere, are procedurally irrelevant." (1999 lAIC Report, at p. 7, see Exhibit 3).

6 22. Due to the above, the underlying Defendants' consent or submission to the Mexican legal system in the underlying lawsuit would not confer jurisdiction to Mexican courts.

IV. Jurisdiction in Defendant's Domicile

23. Mexican law determines that jurisdiction in a personal action lies in the

defendant's domicile.

Article 24.- Territorial jurisdiction is determined by [ ...] IV. The defendant's domicile for real actions over chattels, or personal actions, or class actions or those referring to civil status. [ ... J (See Exhibit 4 for the original Spanish text).

24. Mexican law does not go into determining by itself where precisely that

domicile is located in the given foreign country, what venue rules it may trigger, ~tc.

Mexico refers to defendant's 'country, allowing such country to apply its internal rules in

determining the location of the domicile in question and its jurisdictional significance.

Obviously, Mexican law does not, and could not, impose jurisdiction on such foreign

country. Said Article 24 becomes operative if the foreign country has jurisdiction

according to its own legal system.

V. Mexico's Policy

25. Mexico does not have any law, interest or policy which prevents its

nationals from reaching to a judicial system abroad and benefit from the advantages

offered by the legal system of that forum.

26. To the contrary, Mexico has a long history of supporting its nationals

when asserting their rights in foreign tribunals. For instance, Mexico adhered, on March

23, 1991, to the United Nations International Covenant on Civil and Political Rights.

7 Under Articles 14 and 26 of the Covenant, our nationals are entitled to avail themselves

with the rights and remedies afforded by laws of a foreign forum that is a party to the

Covenant, just as foreign citizens would be entitled likewise to the rights and remedies

afforded by Mexican laws. The United States adhered to said treaty on June 9, 19924.

Said articles 14 and 26 state as follows:

Article 14 I. All persons shall be equal before the courts and tribunals. [... J

Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection ofthe law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status", (Emphasis added.)

27. This goes a long way into explaining why a Mexican court would not take

kindly to the argument of "less deference" being accorded to a Mexican plaintiff because

he resides in Mexico. In fact, if a Mexican judge accepted that posture he or she would be

violating the Mexican Constitution", which states as follows:

Article 1. Every person in the United Mexican States shall enjoy the guarantees granted by this Constitution, which cannot be restricted or suspended except in such cases and under such conditions as are herein provided. (See Exhibit 4 for the original Spanish text).

28. Just as the U.S. and most countries in the world, Mexican law grants

supremacy to international treaties, i.e. the International Covenant of Political and Social

Rights. A Mexican judge who knowingly accepted jurisdiction based on "less deference"

4 In https://treaties.l:1n.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg no=iv- 4&lang=en it can be seen that both, Mexico and the USA are parties to this Convention.

8 having been granted to a Mexican litigant by a foreign court would be violating Article 1

of the Mexican Constitution, as well as many of the other Mexican rules explained in this

opinion. In other words, absolute procedural equality is a constitutional right in Mexico, J

which clashes with the "less deference" theory. This is another reason why Mexico is not

an alternative forum.

VI. Mexican Rejection of FNC Does not "Trump" or "Antagonize" US Law

29. FN~ is a highly technical issue where Comparative Law and Conflict of

Laws converge. As many other topics, a political angle could or could not be added to it.

In Latin America, including Mexico, FNC usually causes problems of illegality, loss of

evidence and a score of other practical obstacles which, strictly speaking, are notmore

convenient for reaching a decision on the merits.

30. When these obstacles are raised in opposition to FNC, sometimes the reply

by FNC proponents is more political than legal:

One often hears replies such as: it would be impermissible to allow the law of country X to trump American law in an American court, or that it would be absurd for country Y to dictate to this court whether to apply FNC or not. This argument is misplaced. FNC explicitly refers to the foreign legal system. It is not that the law of Paraguay, for example, "invades" US law or "prevents" American law from being applied. Quite to the contrary, US law expressly calls for the application of the foreign legal system concerned. American law is not challenged or antagonized by a foreign system that becomes applicable by express mandate of American law. Those who state the opposite are confusing the status of an invitee with that of a trespasser. (See Dahl, H. S.

5 In http://viww.ohchr.org/en/professionalinterest/pages/ccpr.aspx the whole Convention is available. 6 Article I also bans any discrimination based on nationality. See Exhibit 4.

9 Forum Non Conveniens, Latin America and Blocking Statutes7, 35 Inter- I American Law Review, 44 (2003).).

31. As stated in a Us federal case, also representative of Mexico:

Implied in defendants' argument that Costa Rican law should not be able to dictate to American judges what cases they must hear, is the notion that it-is simply unfair that Costa Rica can take a position that undercuts American forum non conveniens law, and thus "dictate" what cases they must hear. However, it should be emphasized that this Court could never reach the forum non conveniens issue if it had not first been established that it is fundamentally fair for this action to proceed in this Court, (See Lucas Pastor Canales Martinez et al. v. Dow Chemical Company, et al., 219 F. Supp. 2d 719; 2002 U.S. Dist. LEXIS 13481, at p.9).

32. The above helps understanding why Mexico never was an alternative

forum in the underlying lawsuit.

VII. Mexico Is Not an Adequate Forum

33. Mexico's evidentiary law is remarkably weak when compared to the U.S.

legal system. For instance, Mexico has no discovery and no depositions. When filing a

lawsuit the plaintiff has to produce all the documentary evidence, and without discovery:

Article 323.- Together with the claim, plaintiff must file the documents on which the action is based. Ifhe did not have them, he must indicate the archive 01' place where the originals are so that, at his expense, a copy of those documents be made, as determined by law, before the claim can be admitted. It is understood that the claimant has the documents available, provided that he can legally request an authorized copy of the originals.'(See Exhibit 4 for the original Spanish text).

34. Mexican law is very clear in the sense that documents found after the lawsuit is filed, are inadmissible:

Article 324.- Together with the claim all documents held by plaintiff, and which he means to rely on, must be filed and, those presented later, in violation of this rule, shall not be admitted. [ ... ](Emphasis added. See Exhibit 4 for the original Spanish text).

7 In http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1l89&context=umialr the complete article is available.

10 , 35. Mexican law knows, of course of testimonial evidence. But this takes

place in open court, without the possibility of having interrogated the witness previously.

Further, Mexican law does not admit requests to produce documents by abstract

categories. As Article 323 of the Federal Code of Civil Procedure states, if the plaintiffs

is not in possession" of the documentary evidence, he must "indicate the archive or place

"wherethe originals are."

36. Even the testimonial evidence available in Mexico is severely limited:

Article 166.- A party can only present up to five witnesses for each fact, except I express legal rule to the contrary. (See Exhibit 4 for the original Spanish text).

37. This means that, in a case where plaintiff needs to prove some type of

engineering malfunctioning, for instance if a valve failed to operate as intended to, and

the defendants are in the U.S., the support afforded by Mexican evidentiary rules is close

to zero. X. Mexican law 'completely rejects any American type of discovery. That is

why the Federal Rules of Civil Procedure have incorporated the following article that

effectively bans any type of U.S. discovery from Mexican soil:

Article 561.- The duty to produce documents and objects in proceedings taking place abroad shall not include the one to produce documents or copies of documents identified by generic characteristics. In no way can a national court order or carry out a general inspection of archives that are not of public access, except in cases allowed by national laws. (Emphasis added. See Exhibit 4 for the original Spanish text).

38. For such reasons, stipulations agreeing "to submit to discovery in the

Mexican/arum in accordance with the procedural rules a/the Mexican court" are

nonsensical since there is no discovery in Mexico. Stipulations agreeing to "make all

relevant witnesses and documents available in Mexico, to the extent consistent with

11 Mexican law" are not really an advantage since Mexican law is, as shown above, very

restrict ive.

39. Leaving evidentiary issues behind, Mexico is also an inadequate forum

since lawsuits in Mexico take considerably longer than what they would in the U.S.

International service of process, for instance, against several defendants residing in

various U.S. states, could take between one and two years. Reaching a final decision

could take five or six years.

VIII. Statute of Limitations

40. The Mexican statute of limitations applicable to torts is of two years, as

determined by the Mexican Federal Civil Code:

Article 1161.- A two-year term applies to the statute of limitations concerning: [...] V. Civil liability emerging from torts; The statute of limitations begins to run as from the day when the acts in question were committed. (See Exhibit 4 for the original Spanish text).

41. The Civil Code also establishes that the statute oflimitations comes into

effect automatically, without the need of any act in particular:

Article 1158.- The statute of limitations accrues by the mere passage of the time I J determined by law. (See Exhibit 4 for the original Spanish text).

42. As stated above, in Mexico the statute of limitations for torts is of two

years. The accident in question took place in 2007. Therefore the underlying action is

already time barred in Mexico.

43. The statute ofiimitations, once accrued, provides an unbeatable defense,

so strong that it is constitutionally protected, in a way akin to due process in the U.S. In

this sense the Mexican Federal Constitution states as follows:

12 Article 14. [... J Nobody can be deprived from his freedom or of his property, possessions or rights except with a lawsuit followed before pre-established courts and according to the Laws in place before the acts in question. [... J (Emphasis added). (See Exhibit 4 for the original Spanish text).

44. As explained below, neither the Mexican filing, nor the filing of the

underlying lawsuit in the U.S. can toll the action in Mexico. In this respect the Mexican

Federal Civil Code states:

Article 1168.- The statute of limitations is tolled: I. [ ... J II. By the filing of a lawsuit or any other claim before ajudge, served to the person in possession or to the debtor, as the case may be; It will be considered that the action is not tolled through a judicial claim if the plaintiffnonsuits it, or if the claim were dismissed. (See Exhibit 4 for the original Spanish text). '

45. We understand that, in the underlying case, the claim that was filed in

Mexico where: a) it was not served on the defendants and, b) it was dismissed. For any

of these two reasons, and with greater reason for both, the Mexican filing did not toll the

statute of limitations, as determined by the said Article 1168.

46. Since the underlying lawsuit was also finally dismissed by the American

Court, such U.S. filing cannot be raised in Mexico as having tolled the action.

47. If an attempt were made to file the underlying lawsuit once again in

Mexico, it would certainly be dismissed due to the statute of limitations, as explained

above. Further, the defeated party would likely have to pay the adversary's costs, as

determined by the Federal 'Code of Civil Procedure:

I Article 7. The losing party must pay the adversary's costs. [... J

13 48. Further, it would be impossible to obtain a Mexican attorney willing to

take the underlying lawsuit on a contingency basis since it is so obviously vulnerable to

the statute of lim itations.

IX. Conclusions

49. We are of the opinion that the reasons stated above could have. been raised

before the American court in the underlying lawsuit. We believe that had such defenses

been raised, forum non conveniens would not have been granted.

50. We further think that, strategically, discovery in the U.S. and according to

American law would have been the best way to obtain evidence.

51. We also believe that the underlying lawsuit is irretrievably time-barred in

Mexico.

52. Finally, we are quite certain, that no Mexican attorney would be willing to

litigate the underlying lawsuit, in Mexico, under a contingency agreement.

53. Further affiants say naught.

I, Arnau Muria, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on August 2 Cj, 2015, in Jalisco, Mexico . . ~ h ~-Z--t ~./~

--,~~/ -.-~.-- ,. t

I, Henry Saint Dahl, declare under penalty of perjury that the foregoing is true and correct. t~ Executed on August 3 0 ~2015, in Washington, DC.

14 EXHIBIT 1

Resume of

Henry Saint Dahl HENRY SAINT DAHL 1301 Connecticut Avenue, N.W. Suite 350 Washington, D.C. 20036 Tel (434) 284-1934

PRESENT & PAST ACTIVITIES • International Legal Consulting. Consultant to US, European and Latin American law firms in matters of international and comparative law. (2015 - ). • Boudreau & Dahl, Partner. Washington, D.C.; Dallas, TX. International business law, international litigation, international arbitration. (1990 - 2014). " Law Professor. On international & comparative law, in the US, in Latin America and in France, as described below. (1984 - 2010). • Consultant to Foreign and U.S. Governmental Entities. • Associate Attorney. M&M Bomchil (Argentina), Curtis-Mallet, Prevot & Mosie (N.Y.) (1979 - 1983). • Author. Of legal books and scholarly articles, • Latest Positions Held. President, Inter-American Bar Foundation (2010 - 2013). Secretary General, Inter-American Bar Association (2014 - 2015). Vice President (2012-2013) and President (2014-2015), Inter-American Legal Affairs ' Committee, Washington, D.C. Bar.

REPRESENTATIVE WORK • Handling contractual/governmental aspects of the installation of an oil rig in the South Atlantic. • Representing a British manufacturer in the sale of aircraft to a Latin American nation. • International loan agreements, foreign investments, transfer of technology involving US, Latin' American and European enterprises. • US AID - Evaluating project on the Administration of Justice. Assessing and reporting on criminal law systems of Central America. • Helping a U.S. mining company to establish operations throughout Latin America. • Consultant tothe Bureau du Droit Europeen et International en Matiere Civile et Commerciale (France). • Opening contacts and negotiating contracts in Europe and in the U.S. for a Brazilian corporation. • Litigation over lead contamination in Mexico. . • Representing a U.S. TV personality before a French District Court and the Paris COUli of Appeals, pleading in French. Case won in both instances. • Advising a consortium of law firms who obtained the highest settlement in the U.S. for a massive tort committed abroad. • Helping the authorities of Argentina, Costa Rica, Colombia, Uruguay and Venezuela obtain the donation of Swedish software to fight child pornography and human trafficking. • Consultant to the Inter-American Juridical Committee of the Organization of American States on matters of international litigation (Washington, D.C., Rio de Janeiro ). • As lead attorney, representing a local importer against one of the biggest multinational corporations, obtained the biggest award ever granted for an arbitration in Costa Rica. • Forum non conveniens litigation in Ivory Coast and Burkina Faso. • Appearing as an expert on Latin America and on French law in court proceedings throughout the U.S. • Asbestos litigation in Spain. • International class actions in Argentina in matters of consumer fraud. • Lawsuit in the U.S. for environmental contamination in Peru, advising group of U.S. law firms. • Triggered a $1.8MM donation to the health system of Guatemala by suing the US government due to non-consented experiments on Guatemalan children. http://ww·w.washingtonpost.com/nationallhealth-science/us-plcdges-18-mi lIion- in-response-tounethical- guatemalan-medical-studies/2012/0'1/10/gIQAGeXLpP _story.html

LICENSED TO PRACTICE IN • U.S.A. Washington, D.C. (2003). • Texas (1990, presently inactive). • New York (1982) • Spain. Madrid (1991, presently inactive). • Argentina. Buenos Aires (1973, presently inactive).

FOREIGN LANGUAGES . , • Spanish, mother tongue together with English. • French, fluent. • Russian, fluent. • Italian, fluent. • Portuguese, fluent.

UNIVERSITY DEGREES • LL.D. Buenos Aires University, School of Law, Argentina. (1980). • Stazhor. Leningrad University, School of Law, Russia. (1979). • LL.M. London University, King's College, England. (1977). • LL.B. Buenos Aires, University, School of Law, Argentina. (1973). • Translator (legal French). Buenos Aires University, School of Law, Argentina. (1972). • Translator (legal English). Buenos Aires University, School of Law, Argentina. (1971).

2 SCHOLARSHIPS AND DISTINCTIONS • Scholarship granted by the British Government for post-graduate legal studies in England (1976 - 1977): • Scholarship granted by the Russian Government for post-graduate legal studies in the Russia. (1977 - 1979). • Scholarship granted by the French Government for post-graduate legal studies in France. (1977). • William Roy Vallance Award, Inter-American Bar Foundation (2012).

CONSULT ANT TO FOREIGN AND U.S. GOVERNMENTAL ENTITIES • Congress of Peru, on international litigation, 2015. • Congress of Brazil, on international litigation, 2010. .. Bureau du Droit Europeen et International en Matiere Civile et Commerciale (France), on Forum Non Conveniens, 2006. • Congress of Panama, on international litigation, 2006 - 2007. • U.S.AID, on improving the business legal system in EI Salvador 2003 - 2004. • Attorney General of Ecuador, on international law, 1999. • Inter-American Juridical Committee of the Organization of American States, on international litigation, 1999 - 2000. • Congress of Guatemala, 1997, on international litigation. • Congress of Costa Rica, 1997, on international litigation. • U.S.AID, Evaluating project on the Administration of Justice. Assessing and reporting on criminal law systems of Latin America, 1987 - 1988.

DRAFTSMAN OF LAWS & OTHER STATUTORY MATERIALS Brazil: • Bill Determining Damages in International Litigation. Costa Rica: • Law for the Defense of Procedural Rights of Citizens and Residents. Bill Number 12.655, Unanimous' Affirmative Opinion by the Permanent Juridical Committee of the Legislative Assembly of Costa Rica, dated June 10, 1997. Dominica: • Transnational Causes of Action (Product Liability) Act 1997. Ecuador. • Interpretative Law 0.[ Articles 27, 28, 29 and 30 of the Code of Civil Procedure for Cases of International Concurrent Jurisdiction, published in the Registro Oficial, 1/30/98, pp. 1 and 2 Guatemala: • Lawlor the Defense 0.[ Procedural Rights of Nationals and Residents, enacted on May 14, 1997. Honduras: • Resolution in the Defense of Legislative Sovereignty, Judicial Independence and Procedural Rights, Honduras Congress, March 1996. Model Law / Litigation.

3 • Latin American Model Law on International Litigation: Model Law I Human Rights. • Latin American Model Law on Human Rights. Nicaragua: • Law for the Defense of Procedural Rights ofNationals and Residents in Nicaragua; bill filed on May 12, 1997. Organization of American States: • Proposalfor an Inter-American Convention on the Effects and Treatment of the Forum Non Conveniens Theory. OAS/Ser.Q, CJIIdoc.29/99, July 14, 1999. • Proposal for an Interamerican Convention on the Effects and Treatment of the Forum Non Conveniens Theory. Forum non conveniens and the Hague' Convention. Latin American Position, OAS/Ser.Q, CJIIdoc.2/00, March 3, 2000. e Proposal for an Inter-American Convention to Fight the Use of Tobacco. The Use of Tobacco in Latin America and its Possible Control. OAS/Ser.Q, eJI/doc.1I00, March 3 2000. Panama: • Law 32 of June 26, 2006 Establishing Rules for the Resolution of International Conflicts in Matters of Private Law and Determining other Issues. • Bill Amending Law 45 of October 31, 2007, Adding Art. J 25 on International Consumer Litigation. • Law 19, of February 18,2008, allowing foreign plaintiffs. Parlatino: • Model Law on International Jurisdiction and Applicable Law to Tort Liability. Peru: • Draft Law on International Litigation.

APPEARED AS EXPERT • Law of France. Express One International, Inc. v. Caisse Nationale de Credit Agricole. US Bankruptcy Court for the Eastern District of Texas, Sherman Division. Case No. 95A 1189. (1999). . • Law of Ecuador. Carlos Zambrano Ferrin et al. v. Million Air, Inc. et al. Circuit Court of the 11th Judicial Circuit, in and for Miami Dade County, Florida. General Jurisdiction Division. Case No. 98-22638 CA 15. (1999). • Law of France. MGE UPS Systems, Inc. v. Fakouri Electrical Engineering, Inc. et al. US District Court for the Northern District of Texas, Fort Worth Division. Civil Action No. 4-04CV -445- Y. (2005 - 2006). • Law of Venezuela. Banco Standard Chartered, S.A. v. Stone Container Corporation. US District Court, Northern District of Illinois, Eastern Division. Case No. 00-C-0274. Venezuelan law. (2000). • Law of The Philippines. Antonio Omus v. Royal Caribbean Cruises Ltd. Circuit Court of the 11th Judicial Circuit, in and for Miami Dade County, Florida. General Jurisdiction Division. Case No. 00-7612 CA 21. Law of the Philippines. (2000). • Law of Costa Rica. Super Helechos, S.A. et al. v. E. J Du Pont de Nemours & Company, Inc. et al. Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, ~lorida. Case No. 01-06932 CA 23. (2001).

4 • Law of Peru. Julio Alberto Lira Garcia v. Ravenscroft Shipping, Inc. et al. Circuit COUliof the 11th Judicial Circuit, in and for Miami Dade County, Florida. General Jurisdiction. Case No. 01-6665 CA 04. (2002). • Law of Venezuela. Carolina Pru Bellorin et al. v. Bridgestone / Firestone Corporation et al. District Court of Dallas County, Texas, 116th Judicial District. Case No. 02-03033-F. (2002). • Law of Panama. Central de Finanzas, S.A. v. Bridgefarmer & Associates, Inc. US District COUli for the Northern District of Texas, Dallas Division,. Cause No. 3-01-CV-1841-R. (2002). • Law of Honduras. Fantome, S.A. et al. v. Sarah Frederick et al. US District COUli, Southern District of Miami. Miami Division "In Admiralty". (2002). • Law of Guatemala. Margarita Perez Mendez et al. v. Teledyne Technologies, Inc. et al. US District COUlifor the Southern District of Texas, Corpus Christi Division. Civil Action No. C-O 1-226. (2002). • International and comparative law. Holly Ann Sacks et al. v. Four Seasons Hotels et al. U.S. District Court for the Eastern District of Texas. Case No. 5:04- cv-073. (2005). • Law of Nicaragua. Martha A. Downs Callaso, as Personal Representative of the Estate of William Smith, deceased v. Morton & Company et al. Circuit COUliof the 11th Judicial Circuit, in and for Miami Dade County, Florida. General Jurisdiction. Case No. 01-10488 CA 02. (2002). • Law of Argentina. Juan Carlos Esteban v. Maria Laura Beade. US District COUli. Middle District of Florida. Orlando Division. Case No. 6:03.CV-408-0RL- 18-DAB. (2003). • Law of Panama. Intcomex Holdings, LLC v. Grant Thorton International and Grant Thorton LLP. Circuit Court of the 11th Judicial Circuit, in and for Miami Dade County, Florida. Case No. 03-03543 CA 06. (2005).

PUBLICATIONS Books • OHADA, Traites, Actes Uniformes et Reglements Annates, Paris 2013,2014. Co-author. • Dahl's Law Dictionary. Spanish - English and English - Spanish. USA, 1992, 1995,1999,2010. Available in LEXIS. • Dahl's Law Dictionary. French - English and English - French. 1995, 1998, 2001,2007 USA, France. Available in LEXIS. • Costa Rica, Family and Succession Law. International Encyclopaedia of Laws, The Hague, 2003. Co-author. • McGraw-Hili's Spanish ami English Law Dictionary, August 2003. • Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward. 8 Human Rights Law Journal, 283 - 477 (1987) [Co-author] • Multinational Corporations. Investments, Technology, Tax, Labor and Securities: European, North and Latin American Perspectives. Co-editor (USA, 1986). Reviewed: Revue International de Droit Compare (France), April - June

5 1987, Nr. 2, at p. 517 (by Andre Tunc). • West's Law ami Commercial Dictionary in Five Languages. English, Spanish, French, Italian and German, in two volumes. Senior editor (USA, 1985). Reviewed: The American Journal of Comparative Law, vol. 34, Summer 1986, Nr. 3 (by Thomas Reynolds). Available in WESTLAW. • Soviet Private Law" (Argentina, 1981).

Articles • Forum Non Conveniens, Latin America and Blocking Statutes. 35: 1 Inter- American Law Review 21 - 63 (2003 - 2004). http://repository.lavv.miami.edu/cgi/viewcontent.cgi?article=1189&context=umial r • International Commercial Arbitration. On-Line course for Salamanca University, Spain (2003). • International Torts: A Latin American Point of View. XXVII (2000) Curso de Derecho Internacional, Inter-American Juridical Committee, Organization of American States, 563 - 578. Corresponding course taught in Rio de Janeiro, Brazil. • The Protection of People, Natural Resources and the Environment Through International Law. * XXVI (1999) Curso de Derecho Internacional, Inter- American Juridical Committee, Organization of American States, 359 - 365. Corresponding course taught in Rio de Janeiro, Brazil. • USA: Bankruptcy Under Chapter 11**,5 International Business Law Journal, 555 - 566 (1992) • The Influence and Application of the Standard Penal Codefor Latin America, 17 American Journal of Criminal Law 235-285 (1990). • U.S. Restrictions on High Technology Transfer. Impact Abroad and Domestic Consequences. 26: 1 Columbia Journal of Transnational Law, 27-52 (1987). • Socialist Law in the Americas. Theforeign Trade Point of View. 3:2 Connecticut journal of International Law, 273 - 309. • Enforcement of American Judgments in Spain. 5 Boston University International Law Journal, 29 - 57, (1987). • International Commercial Arbitration in Cuba. A Convergence of Soviet and Latin American Trends. Lawyer of the Americas 441-466 (1984 ). [Co-author]. Republished in 7 Modern Legal Systems Cyclopedia 66-89 (1985). • Argentina's System of Foreign Investments. 6 Fordham International Law Journal 33 -71 (1982-83).

Notes and Translations • SUI'un droit europeen du contrat, IABA XL Conference, • French Contract Law - Similarities and Differences with the U.S. System, Texas Transnational Law Quarterly, vol. 13, No.4, June 1998, pp. 3 - 9. • Criminal Liability of Enterprises in French Law, Texas Transnational Law Quarterly, vol. 12, No.3, October 1995, pp. 46 - 50. • Simplified Corporations in France, Texas Transnational Law Quarterly, vol. 10,

6 no. 2, May 1994, pp. 11 -12. • France, Latest Developments, Securities Law, 24:3 The International Lawyer, 817-824 (1990). • France, Consumer Law, 24: 1 The International Lawyer, 269 - 274 (1990). • France, New Statutes, 2: 1 The International Lawyer, 577-582 (1988). • France, Competition Law, 22:2 The International Lawyer, 217-221 (1988). • The Use of Arbitration in Cuba: International Solutions to Solve Domestic Problems *. ABA Section of International Law and Practice, Conferencia sabre Arbitraje Internacional, 153 -164 (1988). Republished in Arbitraje Comercial y Laboral en America Central, ABA Section of Int'l Law and Practice (USA 1990). • Argentina: Judgment on Human Rights Violations by Military Leaders. Introductory Note and Translation. 26 International Legal Materials, 317-372 (1987). • Procedural Law, a Latin American Bibliography. Encyclopedia Britannica (1987) • Argentine Draft Code of Private International Law. An Introductory Note and a Translation. 24 (2) International Legal Materials 269-291 (1985) . • Enforcing a Foreign Judgment in Spain. West's International Law Bulletin, 25 (Spring 1984). • Telex Contracts in English Law, Place of Formation. West's International Law Bulletin, 26 (Winter 1984). • Latin American Trends in Foreign Sovereign Immunity. Wests's International Law Bulletin, 24 (Winter 1984). • Handbook on International Maritime Law. Argentine Section. (The Netherlands 1983). [Co-author]. • Contracts with the U.S. and the U.S.S.R. Six Points of Comparison * D. La Ley, 61 (1981), (Argentina). • International Commercial Arbitration in the U.S.S.R. 78 The Law Society's Gazette, 636 (1981), (England). • Argentina's New Promotional Mining Regime. 8 Bulletin of Argentine Legal Development, 1 (1980), (Argentina). • Private International Law, a Comparative Glance* A La Ley, 812 (1978), (Argentina). • One Aspect of the English Common Law, a Divided Profession * 54 Juris, 15 (1977), (Argentina).

Book Reviews • Droit des AJJaires. 25 The International Lawyer 295-297 (1991). • Economic Integration Among Developing Nations: Law and Policy. 2 Latin American Legal Link (1987). • Legal Aspects of Doing Business in Latin America. 2 Latin American Legal Link, 35 (1986). • U.S. Claims Court Reporter. West's International Law Bulletin, 16 (Winter 1984). • El Derecho en el Socialismo Desarrollado. 10 Review of Socialist Law, 91

7 (1984).

Editorial Work • Latin American Legal Link, co-founder and editor, (1984-1986).

LAW PROFESSOR USA • Southern Methodist University, School of Law (Dallas). Adjunct profe.ssor of Mexican law. Associate Director of the SMU NAFTA Law Center. (Spring 1997 - 1998). • Texas Wesleyan University. Adjunct professor of Comparative Business Law and of Mexican Law. (Fall 1991 - 1993). • University of Texas at Dallas. Adjunct professor of International Business Transactions. (Summer 1993). • Southern Methodist University, ScllOOI of Law. (Dallas) Visiting professor. • International Litigation and Arbitration, Comparative Trade Law. (Spring 1987). • University of San Diego, School of Law. Teaching East/West Trade Law, in Russia and in Poland. (Summer 1986 and 1987).

Europe • Paris University (France). American Business Law. (2009 - 2010). • Conservatoire National Des Arts et Metiers (Paris, France). One annual course on American law, to French attorneys. (October - November 1986 - 2007). • Paris Bar. American law, to French attorneys. (October 1993 - 1995.). • Universite de Cergy-Pontoise, School of Law. American business law. (October 1995). • Universite de Bordeaux, School of Law. Visiting professor. American business law. (Summer 1985). . • Universidad de Barcelona. School of Law. Visiting Professor. Russian and American Conflict of Laws. (Summer 1984).

Latin America • Puerto Rico University, School of Law. Law Professor, Comparative Business Law, International Business Law, Doing Business in Eastern Europe and Introduction to Law. (Spring and Fall 1989). • Sao Paulo University, School of Law (Brazil). Visiting professor teaching U.S. Business Organizations. (August - September 1986). • Buenos Aires School of Law (Argentina). Adjunct professor of law teaching Commercial Law and Conflict of Laws. (January - December 1975:- 1976.).

PODIUM • The Implementation of the UN Principles on Business and Human Rights in Private International Law, Swiss Institute of Comparative Law, Lausanne, 10 October 2014. • Legal Myths and Reality. Guatemalan Bar Association, October 23,2013.

8 • Proposed Human Rights Exception to the FSIA,U.S. Congress, October 8, 2013. • International Litigation and Arbitration, Zaragoza Bar Association, Spain, September 2013. • International Commercial Arbitration, Guatemalan Bar (Guatemala), November 2012. • Approaches to International Litigation, Colombian Bar (Bogota), November 2012. • Model Law for International Litigation in Latin America*. 40th IABA Congress, Madrid, Spain, June 24,2004. • Amending the Latin American Codes of International Civil Procedure in Matters of International Litigation *, IABA 39th Conference, New Orleans, June 18,2003. • The Free Trade Agreement Chile - USA, IABA 39th Conference, New Orleans, June 19,2003. . • What To Do (and Not 'To Do) When a Latin American Case Hits Your Desk, Inter-American Bar Association, Washington, DC, May 30, 2003. • International Business Law and Arbitration, University of Lima, Peru, May 19 - 20,2003. • How Napoleonic Codes Work, American Translators' Association, New Jersey, May 5, 2003 • Legal and Business English *, Peruvian-American Chamber of Commerce, Lima, Peru, 3 - 5 March, 2003. • Latin America and Blocking Statutes, University of Miami Law School, March 28,2003. ~ Cours de Droit des Affaires Americain?", CNAM, Paris, France, October 28- November 25, 2002. • Sltuacion Economica en Iberoamerica. Riesgos y Garantias, Inter-American Bar Association, Granda, Spain, November 15,2002. • Tour d'Horizon du Droit des USA **, CEPRIM, Paris, France, November 23, 2002. • Les Societes dans Ie Droit Americain" *, Centre de Formation Professionnelle Notariale de Paris, France, November 19, 2002. • Enjeux Financiers et Ethique**, Centre National des Professions Financieres, Paris, France, November 6, 2002. • Lobbying in American Law*, UCES, Buenos Aires, Argentina, October 10,2002. • Litigation in Cases of International Pollution. American University, Washington College of Law, June 4, 2002. • International Law: Regionalism and Universalism. Inter-American Juridical Committee, OAS, Rio de Janeiro, Brazil August, 2000. • International Law and the Protection of Natural Resources, the Environment and Health Inter-American Juridical Committee, OAS, July, 1999, Rio de Janeiro, Brazil. • Doing Business in Mexico. Dallas Bar Association. September, 1993. • Copyright Protection and Piracy. * El Salvador Bar Association, San Salvador,

9 September, 1992. • Entering and Remaining in the American Market. * E.A.D.A. Barcelona, Spain, October 1991. • Legal Aspects 0/ Doing Business with the European Community. Paper on Merger Control and Competition Law, Dallas Bar Association, International Law Section, January 1991. • New Dimensions in International Trade. International Trade Summit. (October, 1990, Arkansas). • International Arbitration. Puerto Rico University School of Law. Co-chairman of conference on The Civil Code Centenary. (November, 1989). • International Solutions to Solve Domestic Problems. A.B.A. Conference on International Commercial Arbitration. (March 1988, Costa Rica) (Published). • Socialist Law in the Americas. UCLA School of Law, Conference on Latin American Law. (November 1986). (Published). • U.S. Restrictions on Exports/rom Third Countries 0/ U.S._Technology. Madrid University, School of Law (Spain). Private International law convention (May, 1986). (Published). • Reorganization 0/ Multinational Enterprises: Legal and Tax Aspects. Louisiana State University, Law Center. Co-Chairman of conference. (October, 1984). (Published).

MEMBER OF • Inter-American Bar Association, Adjunct Secretary General (2004-2007); Secretary General (2013 - 2015 ). • Inter-American Legal Affairs Committee of Washington D.C. Bar, Vice-President (2011 - 2013); President (2013 - 2015). • Founding member of Cercle K-2, a think tank headquartered in Paris, France. https://www.cercle-k2.fr!(2014 - ) • ICDR, Neutral's List, Arbitrator (2007 , - 2012). • Russian-American Chamber of Commerce (President 1992 - 1994). • USA-Argentine Chamber of Commerce (President 1994 - 1996). • Advisory Council of the Dallas Bar Association, International Law Section (1992 - 1996). • American Society of International Law (1994 - 2002).

* In Spanish ** In French

10 EXHIBIT 2

Arnau Muria Tunon Arnau Muria Tunon Bogota 3155 . Dpto. 30 I . Col. Colomos-Providencia . Guadalajara, Jalisco . amuria@yahoo.com . 3642.3929

Law Professor University of Guadalajara, Jalisco (2004 - ). Teaching International Conflict of Laws and International Business Law. Teaching Citizen's Lawat the Master's Program.

Mexican Senate. Advisor to the PRI in legal matters. (2012 - ).

Attorney. Guadalajara, Jalisco. Administrative law, civil law, litigation, foreign investments. (2003 - ).

Staff Attorney. Permanent Bureau at The Hague Conference of Private International Law. Working on matters of International Contlict of Laws, International Procedural Law, and Family Law. The Hague, Holland (2000 - 2003).

Associate Attorney. At the law firm of Garcia Barragan y Villela Abogados, S.c. Corporate law. Contracts. Foreign investments. Mexico, D.F. (1998-1999). At the law firm of attorney Miguel Claudio Jimenez Vizcarra (1993-1997)

Electoral Board Officer. Electoral Commission for the Federal District of Mexico City. (1997).

Education. Escuela Libre de Derecho. Diploma on International Business Law. Mexico, D.F. (1998-1999). Pittsburgh University. Master on International and Comparative Law. (1997 - 1998). The Hague Academy of International Law. Course on Public International Law and on Private International Law. (200 I - 2002). University of Pompeu Fabra, Barcelona, Spain. Master in International Relations, specialty law. (1999 - 2001). University of Guadalajara. J.D. Graduation thesis on State Liability for Illegal Administrative Acts .. ( 1997). Harvard University. Introduction to American Government and US Foreign Policy. (1994).

Scholarships for master's studies. MacArthur/Ford/Hewlett Foundation. Magdalena O. Vda. de Brockmann Foundation. Concejo Nacional para la Ciencia y la Tecnologla (CONACYT). Casals, of the Generalitat de Catalufia, Spain ..

Distinctions. Pace University, N.Y. Second place in competition on the Convention for the International Sale of Goods. (1998). ' First Prize for the best legal thesis of 1997, Guadalajara University. Scholarship for outstanding students, obtained twice, 1994 and 1995. Guadalajara Uni~ersity. Mariano Otero Prize, awarde to the highest GPA. (1994). International Book Market. First Prize for short stories (1990). Champion at the Mathematics Olympic Games (1989).

Other Activities and Associations. Columnist at the El Occidental news paper. Sworn translator, Judiciary Power of Guadalajara: English and Spanish. American Association of Private International Law, full member. Mexican Academy of Private International and Comparative Law, full member. Mexican Bar Association, full member. SERV As International, full member.

Foreign Languages. English, fluent. Catalan, fluent. French, intermediate. Portuguese, intermediate. EXHIBIT 3

ORGANIZATION OF AMERICAN STATES INTER-AMERICAN JURIDICAL COMMITTEE

CJJTI

PROPOSAL FOR AN INTER-AMERICAN CONVENTION ON THE EFFECTS AND TREATMENT OF THE FORUM NON CONVENIENS THEORY ORGANIZATION OF AMERICAN STATES INTER-AMERICAN JURIDICAL COMMITTEE

CJJTI 55th Regular Period of Sessions OEA/Ser.Q August 2 to 27, 1999 CJI/doc.29/99 Rio de Janeiro, Brazil 14 July. 1999 Original: Spanish

PROPOSAL FOR AN INTERAMERICAN CONVENTION ON THE EFFECTS AND TREATMENT OF THE FORUM NON CONVENIENS THEORY

(Prepared by Dr. Gerardo Trejos Salas)

FORUM NON CONVENIENS IN LATIN AMERICA

This study outlines the effects caused in the region by forum non conveniens and it describes the reactions triggered in several countries and international organizations. In order to explain the issues involved more realistically, the text is illustrated by the following cases where forum non conveniens was applied: Piper Aircraft v. Reyno', Delgado v. Shell Oil Co. ii, Gerardo Dennis Patrickson et al v. Dole Food Company, Inc. et al'" and Ruth Linares Polanco v. H B. Fullerlv.

Latin America reacted against forum non conveniens with an overwhelming rejection. Several countries produced official opinions from the respective Attorney General's Office, judgments that have even reached the Supreme Court, Congressional Resolutions, including that of an international organization and even laws specifically enacted to counter this issue". In spite of this, forum non conveniens continues to cause problems in the region, as the following shows.

I. ILLEGALITY OF AND PROBLEMS CAUSED BY FORUM NON CONVENIENS

Several are the reasons why forum non conveniens contravenes Latin American law and, consequently, it cannot generate jurisdiction. These reasons are so strong that Latin American judges just have to cite a few -constitutional, procedural, a special statute- before reaching the conclusion that the case should be dismissed. Notice first how this doctrine operates as a whole:

The foreign judge has full jurisdiction and lacks any personal reason (e.g. kinship, degree of friendship, etc ... ) to decline the case. However, he decides, against the plaintiff's will, that there is another court -with concurrent jurisdiction- that is more convenient and sends the plaintiff there, to file a new claim. When the "more convenient" court is abroad, the original judge does not send any rogatory letter and does not request the consent of the foreign authorities in any other wall. He simply orders the plaintiff to file a new claim in another country'?'. Frequently the original judge imposes certain conditions -for instance that the claim be filed within 30 days, that defendants cannot raise certain exception -e.g. statute of limitations-, that to return to the original court it is necessary to have a judgment from the Supreme Court of the second country establishing lack of jurisdiction, etc ...

Under such system, Latin American plaintiffs must refile their claim in their country of origin, with the following peculiar results:

a) The original judge continues to have underlying jurisdiction and it is normal that the parties appear before him from time to time, to complain about what the other party does or omits doing in the second court, to request reconsideration of a previous ruling, etc. . . '

b) The plaintiffs are gagged, not being able to tell the judge of the second court that they are there against their will or that they believe that such judge should rule for lack of jurisdiction.

c) When plaintiffs return to the original court with a ruling for lack of jurisdiction from the second court, it becomes standard for defendant to object and to request that the original court consider the dismissal by the second court as "inappropriate", "abusive", "the result of procedural bad faith", etc ... vi~i

A foreign judge who unilaterally imposes workix on a Latin American colleague is acting as if he were hierarchically superior, The foreign judge who imposes, again unilaterally, the commission of certain procedural acts in Latin America, establishing conditions, terms, etc ... behaves in a no less offensive way.

Briefly stated, the following are some of the specific violations caused by forum non conveniens:

1. Constitutional Law. Forum non conveniens contravenes about six principles usually . /' found in Latin American constitutions": j:{ a) Sovereignty. It is injurious for a country that a foreign judge unilaterally imposes the commission of certain procedural acts in such country, for instance the filing of a claimxi.

2 b) Supremacy of international treaties. Forum non conveniens violates the supremacy of several bilateral and multilateral international treaties.

- Bilateral treaties. No fewer than eleven Latin American countries have signed bilateral treaties of Friendship, Commerce and Navigation with the United States of Americaxii. Typically these conventions include an article that assures the access by the nationals of one country to the courts of the otherxiii. " ... it is not clear how the application of a judicial theory (t'forum non conveniens "), inferior in ranking to international treaties, can close the doors of American courts to citizens of my country. »xiv - Multilateral treaties. Forum non conveniens also violates the following multilateral treaties that guarantee a free access to the courts of law:

a) Convention Regarding the Status of Aliens in the Respective Territories of the Contracting Parties (art. sty, . b) American Declaration of the Rights and Duties of Man (arts. II, XVII and xvnn=', c) Universal Declaration of Human Rights (arts, 7 and st vii,and d) finally, as forum non conveniens discriminates against the foreign plantiff, it also violates the Charter of the Organization of American Statesxviii.

Since forum non conveniens is an institution of the internallawxix of some countries, it cannot be used to block the rights stemming from international conventions - whether bilateral or multilateral-, as is clearly established by the Vienna Convention on the Law of Treaties":

c) Equality before the law. This concept as a strong constitutional root in Latin American countriesxxi. Forum non conveniens cases are based on the Piper case which explicitly and clearly discriminates against the foreign plaintiff?", This discrimination is not even covert and it appears .from the mere reading of forum non conveniens judgments'?". A Latin America judge cannot accept and give continuity to a claim whose legal basis is a foreign judgment that discriminates procedurally against the plaintiff, because the latter is a foreigner in the original court. Such discrimination against the foreign plaintiff is so generalized in some countries that it is even held as correct and forum non conveniens judgments explain it clearly, as if it were something very naturafxiv.

d) Lis pendens. Some countries have constitutional clauses establishing that: "No court can hear cases pending before another. »xxv

e) Removal of a judge with jurisdiction. Another principle found in several constitutions is that: "No person can be removed/rom the judge with jurisdiction »xxvi Some countries include such principle in their codes of civil proceduref?",

j) Principle of legality. Obviously, forum non conveniens is an unknown theory in Latin American systems. Accordingly, it cannot be a factual basis to generate jurisdiction'Y'",

3 j) Jurisdiction and service. In Latin American law the court has jurisdiction or not, according to what the law determines. If the defendants have or have not been served is an independent factor, unrelated to jurisdiction. The service of summons and of the claim causes important procedural consequences. For instance, it sets a time limit to answer. However, the service of summons is not a basis for jurisdiction. The fact that the defendant promises, before the first court, that he will accept service of summons from the second court, is not a jurisdictional basis eitherxliii.

k) Promises to submit are inoperative. An example of how this topic causes confusion in the common law is seen when the second court assumes that, not the submission but the mere statement about having the intention to Isubmit is procedurally relevant and should . // be informed to the judge in the second court" IV. !% That is not so. The promises made to a foreign court, about the wish to submit to a Latin American jurisdiction do not generate jurisdiction in Latin America. Such promises, regardless of how sincere, are procedurally irrelevant. What could be relevant is the actual submission, express or implicit. However, the constitutional and procedural impediments that forum non conveniens creates in Latin American legal systems renders the actual submission inoperative. .

I) Claims ruled by the corresponding law. Eventually the plaintiffs would return to the first court with a judgment for lack of jurisdiction from the second court. It is not unusual then for defendants to charge plaintiffs with having drafted the second claim "in bad faith", by including or omitting certain information. The truth is that the Latin American codes of civil procedure have sections where the requirements that the claim must contain are specifically mentioned. For instance: Argentina, mi. 330; Bolivia, art. 327; Costa Rica, art. 290; Ecuador, art. 71; Panama, art. 654, etc ...

In these legal systems it is nor a requirement to state if defendants have expressed or not their intention to submit to such jurisdiction. Accordingly, it seems wrong that the court of the first country could impose certain consequences against plaintiff for not having done, before the second court, what the law of that country does not require. The plaintiffs cannot be forced to litigate before the second court abiding by rules and requirements that are not contemplated in such legal system'".

m) Illusory submission by defendants. In Patrickson and Delgado it can be seen how forum non conveniens lends itself for the defendants to litigate abroad without running the risk of paying an adverse judgment. Such technique works in the following way:

To obtain that the case be moved to another country the defendants promise the first judge that they will submit to the jurisdiction of foreign courts. Following the procedure of the first country, defendants file a pleading before the first court where the promise to submit is recorded. But in the same pleading, together with the promise of "submission" to the foreign court, defendants "reserve the right to contest" a final judgment of such foreign court, before the first court and for legal grounds of the first country'!".

7 ORGANIZATION OF AMERICAN STATES INTER-AMERICAN JURIDICAL COMMITTEE

CJJli 56th REGULAR PERIOD OF SESSIONS OEA/Ser.Q March 20-3 I, 2000 CJI/doc.2/00 Washington, DC, USA 3 March 2000 Original: English Restricted"

PROPOSAL FOR AN INTER-AMERICAN CONVENTION ON THE EFFECTS AND TREATMENT OF THE FOR UM NON CONVENIENS THEORY

(Presented by Dr. Gerardo Trejos Salas)

Forum non conveniens and the Hague Convention. Latin American Position

I.INTRODUCTION ILLEGALITY AND PROBLEMS CAUSED BY FORUM NON CONVENIENS

During the previous period of regular sessions a report on forum non conveniens (FNC) was introduced (OEA/Ser. Q, CIJ/doc.29/99, July 14, 1999). Some of the illegalities and problems caused by said theory can be summarized as follows:

No jurisdiction if no acts performed in the country. Latin American jurisdictional notions, not surprisingly, are different from those in Common Law systems. By a US standard, Latin American jurisdiction seems more restricted. Absent, for instance, is the American theory of "long-arm jurisdiction", or the idea that service of process confers jurisdiction. Also, when a person has performed all the activity in question outside the Latin American country, there would be no national jurisdiction either'. If adverse effects follow from conduct deployed abroad, Latin American law f

I For instance, the Code of Civil Procedure of Costa Rica states that there is local jurisdiction" When the action is based on a/act occurred or in an act that took place in Costa Rica." (art. 46, para 3). .Such assumes that jurisdiction lies in the foreign country where the acts occurred. Conversely, Latin American countries would have jurisdiction over acts performed there, even if the consequences in question take place abroad.

In spite of this, some foreign judges persist in applying FNC and ordering that lawsuits be filed in Latin America when the relevant acts took place abroad, although there is no jurisdiction in Latin America.

Lack of jurisdiction if no power to constrain. As it can be seen in footnotes 60 and 61, together with their accompanying text, the FN C defendant is not bound to obey a final judgment from the second court. That is also a reason causing lack of jurisdiction, since jurisdiction cannot exist "without the power to compel the enforcement of what has been ordered." (M. Morales Lebron, Diccionario Juridico Segun la Jurisprudencia del Tribunal Supremo de Puerto Rico, p. 563, San Juan, 1977).

Jurisdiction is terminated. Even when there is concurrent jurisdiction, the claim) filed before one court extinguishes the jurisdiction of the other court'.

And is not reborn. For jurisdiction to be reborn in Latin America, there has to be a (voluntary) nonsuit of the first case and annew (voluntary") filing of the claim before the second court. A FNC filing does not generate jurisdiction.

Despite such a clear rule, some foreign courts persist in applying FNC. When the Latin American court dismisses the case for lack of jurisdiction, they refuse to accept the

interpretation was held in Carlos Luis Abarca et al. v. Shell Gil Company et al., affirmed by the Costa Rican Supreme Court on 2/21/96. In Brazil, art. 88~ of the Code of Civil Procedure, states exactly the same principle: "Brazilian courts have jurisdiction when ... III The case is based on afact that.occurred, or in an act that was performed in Brazil." In Honduras, mi. 146, first paragraph, of the Ley de Organizaci6n y Atribuciones de los Tribunales, does' not grant jurisdiction against a corporation who did not perform any acts in Honduras (Attorney General of Honduras, opinion of 6/2/95). According to the Attorney General of Nicaragua, in his opion of 5/24/95, "The procedural rules 0/ our system do not grant jurisdiction to Nicaraguan courts against manufactureres ... who have only made and sold their product abroad, without having pelf armed acts in Nicaraguan territory. Code a/Civil Procedure, article 265, para. I" III Panama, there is a judgment from the Primer Tribunal Superior de Justicia, of 4/18/95, stating that jurisdiction over foreign corporations lies: " ... with the court situated where the corporations have their principal office." This precedent was followed twice in FNC cases, in 1995 and in 1999. . 2 Such a territorial notion has a political angle. It is a way of protecting the borders and the sovereignty of the country concerned: by refraining-from judging acts performed abroad, under foreign laws, it is more probable that foreign courts will refrain from judging acts that took place in our country. It is a variation of the expression par in parem imperium non habet. In this way Latin America departs from French law, where the plaintiff's nationality generates local jurisdiction, even for acts performed abroad (France, Civ. Code, art. 14). 3 Once jurisdiction attaches, it cannot be altered, see for instance, Codes of Civil Procedure of Guatemala, art. 5; Ecuador, 311.15 (see also Ecuadorian Constitution, art. 24, para. II); Honduras, arts. 138 and 141; Panama, art. 253, Brazil, art. 87, Nicaragua, art. 255. The term of art for this is "prevencion", or "competencia preventiva". From "prevenire", a Latin term meaning to arrive (venire) earlier (pre) and consequently preventing or blocking the way for others. 4 It is so basic that a lawsuit cannot be ordered by the courts that Latin American procedural codes do not bother to mention this principle. As an exception, the Code of Civil Procedure of Costa Rica elaborates that "Nobody can be forced to file a lawsuit ... " (arts. 122 and 477).

2 case, or they allow it to remain dormant for years. (For instance, see footnotes 15 - 18 and their corresponding text.)

Procedural freedom. FNCforces and/or constrains plaintiff to file the second lawsuit. It is intolerable for a national judge to force or to constrain a citizen to file a claim5. It is worse still if who forces and constrains is a foreign judge.

Actor sequitur forum rei. The proper court for personal actions is the one of the defendant's domicile6. A foreign court with jurisdiction cannot export its FNC theories when they clash with this principle.

Bilateral treaties with the USA. FNC is a domestic law. Consequently, it is trumped by international treaties. It then follows that FNC cannot block access to the courts which is, precisely, what these treaties guarantee".

Sovereignty. A foreign judge should not try to impose, unilaterally, the performance of procedural acts in Latin America, particularly when such conduct breaches Latin American law". FNC cannot be exported ifit violates the second country's laws 10.

Equality before the law. This principle is a constitutional rule!'. FNC discriminates openly against the foreign plaintifft", Logically, a Latin American judge

5 Latin American law knows the theory of acto personalisimo. These are acts where the free will of the person is so important that they cannot be forced upon anybody. Examples are marriage and the making of a will. No judge can order someone 1'0 get married, or to make a will. The filing of a claim falls in this same category. A Latin American judge cannot order anyone to file a claim. And with greater reason, a Latin American judge cannot preside over a lawsuit that has been filed following a foreign court's order. The functional equivalent of this would be to expect Latin American notions of forced heirship, in a US probate proceeding, just because the decedent was Latin. See also, for instance, the Constitution of Honduras, mt. 70: cc ••• nobody can be forced to do what the law does not command, nor preventedfrom doing what the law does not prohibit." Obviously, FNC cannot breach this rule. 6 It just suffices to mention article 323 of the Bustamante Code, adopted by Bolivia, Brazil, Chile, Costa Rica, Cuba, Dominican Republic, Ecuador, EI Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama and Peru. Latin American countries that have not adopted the Bustamante Code still follow the same principle. Example: Argentina, Code of Civil Procedure, alt. 5 (4) states that: "In personal actions stemming from civil liability [jurisdiction lies with the court] of the place where the facts occurred, or of the defendant'S domicile, as chosen bv plainti(f" (emphasis added). 7 Vienna Convention on the Law of Treaties, art. 27. See, for instance, the Constitution of Honduras, arts, 16 and 18 (Supremacy of Treaties), 8 In some treaties, the right of access to courts is unfettered. In others, access is granted on equal footing with nationals. 9 For instance, the Constitution of Honduras, art. 82, establishes that "The citizens of the Republic have free access to the courts, to exercise their action in the way determined by the laws ", Obviously, said laws are Honduran, not the foreign ones. . 10 Latin American codes, special statutes, judgments and opinions of Attorneys General say very explicitly that FNC violates important constitutional and procedural rules, II For instance, see the Constitutions of: Brazil, art. 5; Costa Rica, mt. 33; Ecuador, art, 23(3); Guatemala, art. 4 and Honduras, art. 60, para I and 2, and art. 61. 12 For instance, in Gerardo Denis Patrickson et al. v. Dole Food Company, Inc. et al., cuse Nr. 97-0156, before the United States District COUlt for the District of Hawaii, determines that "When the plaintiff is

3 cannot, and should not, become the successor, or the accomplice, of the procedural discrimination initiated by theoriginal court. It should be added that the discrimination against the foreign plaintiff that FNC perpetrates, also breaches important multilateral treaties as, for instance, the OAS Organizational Charter 13•

The first court remains as an appeals court for the second and it behaves as a Constitutional Court for the second country. Strange as it may seem, the final judgment of the second cOUli, is not really final. According to American law such judgment can still be challenged before the first court, and on grounds of American lawl4. Final control over the case -ordering effectively that the defendant pay an adverse decision- remains under the first court's control. The supposed "jurisdiction" and "sovereignty" of the second court is just an illusion. This explains why Latin American judges are not enthusiastic about accepting these cases.

Lis pendens. 'While the case is being prosecuted in the second country, the FNC dismissal could still be under appeal in the first country. Usually the second court is not

non-foreign, there is a strong presumption infavor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors weigh infavor of trial in the alternative forum, See Piper Aircraft Co. v. Reyno, 454 u.s. 235, 255-56 (1981). This is because "[wjhen the homeforum has been chosen, it is reasonable to assume that this choice is convenient. " Id. When the plaintiff is foreign, however, this assumption is less reasonable and the plaintiff's choice is afforded less deference, Id In such cases, the showing required to obtain dismissal is reduced See Empresa Lineas Maritimas Argentinas SA v. Schichau-Unterwesser A,G" 955 F2d 368 ts" Cir. 1992). (Bold added). The forum non conveniens judgment in Delgado v. Shell Oil Company, published in 890 F, Supp, 1324 (S,D, Tex. 1995), says virtually the same. Another example is Ruth Linares Polanco, v. H. B. Fuller, cause Nr. 3-96-8, before the US District Court, District of Minnesota, Third Division. A judgment of September 23, 1996, while applying the theory of forum non conveniens states, at page 25, in reference to the Piper case, as follows: "The Court began its Otl'n analysis by noting that while a plaintiff's choice of forum was normally entitled a strong favorable presumption, district courts are "fully justified" in according less weight to this choice when the plaintiff is foreign. Id at 255-256. This is because it is much less reasonable to assume that a foreign plaintiff has chosen an Americanforum for reasons of convenience. (Bold added). . At page 35, in the same ruling, an identical thought is expressed: "Plaintiff's continuing reliance on Reid-Walen is again misplaced, because the plaintiff in that case was an American citizen, a fact which entitled the plaintiff to a strong presumption of deference in her forum choice." (Bold' added). 13 Article 5(j) of the Chatter of the Organization of American States, re-numbered as 3(j) in its 1967 version, says as follows: "The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex." [Emphasis added]. The United States ratified this convention first on June 19, 1951 (see U.S.T. 2394, T.I.A.S. Nr. 2361 and, after the Buenos Aires Protocol, the same text was ratified by the United States on April 26, 1968 (see T.I.A.S. Nr. 6847. O.A.S.T.S. Nr. I-A, O.A.S.O.R., O.E.A./Ser.A/2.add2). The second draft of the convention entered into force in the United States on February 27, 1970. All Latin American countries, with the exception of Cuba, are members of this treaty. It should be added that in 1959 the OAS created an Inter-American Human Rights Commission, whose goal was to further respect for human rights, expressly "those established in the American Declararion of the Rights and Duties of Man." In 1967, when the OAS Charter was restructured, the Inter-American Human Rights Commission was given the rank of "principal organ" (art. 51). Protecting compliance with human rights falls within the purview of this Commission. (See Thomas Burgenthal, The Revised OAS Charter and the Protection of Human "Rights 69 A.J. Int'I L. 828, 1975.) 14 See section VIII, below, for more detail.

4 informed about this appeal since the plaintiff is "gagged" by the first court and the defendant does not want to jeopardize his possibility to remain in the second court. This happened, for instance in the Delgado and in the Patrickson cases. The Latin American judges in these cases could one day be informed, to their surprise, that a foreign court of appeals has decided that the cases shall return to the first country.

The judge who applies ,FNC resorts to an exceptional mechanism. Having jurisdiction and not being disqualified by personal reasons he expects another judge to take charge of the case. If the second court rules it has no jurisdiction, then first court should reassume adjudicating the case. In ieEcuadorean Shrimp Litigation 1 5 this did not happen. Here the case was dismissed on FNC and plaintiffs were ordered to refile in Ecuador. The US court had established that it would reassume adjudicating the case if the Supreme Court of Ecuador ruled for lack of jurisdiction. Eventually the Ecuadorian Supreme Court upheld lower rulings for lack of jurisdiction and the case was brought again before the US court. The American judge still refused to take the case based on two reasons. One reason was that Ecuadorian law (law 55 and art 15 of the Code of Civil Procedure) "has the effect of vitiating Florida law onforum non conveniens andforcing Florida courts to accept jurisdiction ... " The second reason was that plaintiffs had acted in bad faith by lobbying for, the enactment of Ecuadorian law 55, which destroyed the FNC option.

These two arguments are flawed and they illustrate why FNC cannot be exported. The fact that said Ecuadorian laws "vitiated" Florida FNC law is not a reason to ignore them. FNC is the subservient system to foreign law. It is not that foreign law should accommodate FNC, but exactly the opposite should happen 16.

The second argument also fails. Latin American constitutions allow, and even encourage, people to present petitions to the authorities (derecho de peticionar a las autoridades) 17. This is in fact one of the pillars of any democratic system. When plaintiffs -Ecuadorian nationals- were sent to Ecuador they had a perfect right, while in Ecuador, to lobby for whatever laws they wanted 18. It is politically incorrect for a foreign judge to send plaintiffs to refile a lawsuit in Ecuador and to punish them later because they availed themselves, while litigants in Ecuador, of rights granted by the Ecuadorian Constitution.

15 Case Nr. 94-10139 (27), Circuit Court of the I ih Judicial Circuit, in and for Broward County, Florida, ruling of 9/24/99. Other times the foreign court does not openly reject the Latin American decision for lack of jurisdiction, but it does not accept jurisdiction either, allowing the case to remain dormant for years. As an example, see Delgado v. Shell- Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995). 16 FNC is based on the "availability" of a foreign forum. FNC theory does not say that foreign laws that do not accommodate FN C lawsuits shall be disregarded. FNC is subordinated to the existence of an alternative available forum. It is not the other way around. 17 See, for instance, the Constitution of Honduras, art. 80 "Any person '" has the right to present petitions' to the authorities ... " 18 As the origin of the word indicates, lobbying was invented, and is widely practiced in the USA. In 1992, a group of FNC defendants (Alfaro case) lobbied -successfully- to have Texas anti-FNC law abolished. Tobacco companies are famous for lobbying the US Congress. They even lobby Congresses in Latin America. No US court penalizes US corporations for lobbying. Why cannot Latin American plaintiffs do the same in their own country?

5 EXHIBIT 4

MEXICAN FEDERAL RULES OF CIVIL PROCEDURE

MEXICAN FEDERAL CIVIL CODE

MEXICAN FEDERAL CONSTITUTION

, MEXICAN FEDERAL RULES OF CIVIL PROCEDURE

Available at http://www.diputados..gob.mx/LevesBiblio/pdt/6.pdf f

CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES

ARTICULO 3°._ Las relaciones reciprocas de las partes, dentro del proceso, con sus respectivas facultades y obligaciones asi como los terrninos, recursos y toda clase de medios que este C6digo concede para hacer valer, los contendientes, sus pretensiones en ellitigio, no pueden sufrir modificaci6n, en ningun sentido, por virtud de Jeyes 0 estatutos relativos almodo de funcionar 0 de ser especial de una de las partes, sea actora 0 demandada. En todo caso, debe observarse la norma tutelar de la igualdad de las partes dentro del proceso, de manera tal que su curso fuera el mismo aunque se invirtieran los papeles de los litigantes.

ARTICULO 7°._ La parte que pierde debe reembolsar a su contraria las costas del proceso. [... ]

ARTICULO 12.- No influyen, sobre la competencia, los cambios en el estado de hecho que tengan lugar despues de verificado el emplazamiento.

ARTICULO 24.- Por razon de territorio es tribunal competente: I.":El dellugar que el demandado haya sefialado para ser requerido judicialmente sobre el cumplimiento de su obligaci6n; . 11.- El dellugar convenido para el cumplimiento de la obligaci6n; 111.- El de la ubicaci6n de la cosa, tratandose de acciones reales sobre inmuebles 0 de controversias derivadas del contrato de arrendamiento. Si las cosas estuvieren situadas en, 0 abarcaren dos 0 mas circunscripciones territoriales, sera competente el que prevenga en el conocimiento del negocio; IV. El del domicilio del demandado, tratandose de acciones reales sobre muebles 0 de acciones personales, colectivas 0 del estado civil; . V.- El dellugar del domicilio del deudor, en caso de concurso. Es tarnbien competente el tribunal de que trata esta fracci6n para conocer de los juicios seguidos VI.- El dellugar en que haya tenido su domicilio el autor de la sucesion, en la epoca de su muerte, tratandose de juicios hereditarios; a falta de ese domicilio, sera competente el de la ubicacion de los bienes raices sucesorios, observandose, en 10 aplicable, 10 dispuesto en la fraccion III. A falta de domicilio y bienes raices, es competente el dellugar del fallecimiento del autor de la herencia. Es tambien competente el tribunal de que trata esta fraccion, para conocer: a).- De las acciones de peticion de herencia; b).- De las acciones contra la sucesion, antes de la partici6n y adjudicaci6n de los bienes, y c).- De las acciones de nulidad, rescision y eviccion de la particion hereditaria; VII.- El dellugar en que se hizo una inscripci6ri en el Registro Publico de la Propiedad, cuando la acci6n que se entable no tenga mas objeto que decretar su cancelaci6n; VIII.- En los actos de jurisdicci6n voluntaria, salva disposici6n contraria de la ley, es juez competente el del domicilio del que promueve; pero, si se trata de bienes raices, 10 es el dellugar en que esten ubicados, observandose, en 10 aplicable, 10 dispuesto en la fracci6n III. Cuando haya varios tribunales competentes conforme a las disposiciones anteriores, en caso de conflicto de competencias se decidira a favor del que haya prevenido en el conocimiento, y IX.- Tratandose de juicios en los que el demandado sea indigena, sera juez competente el del lugar en el que aquel tenga su domicilio; si ambas partes son indigenas, 10 sera el juez que ejerza jurisdicci6n en el domicilio del.dernandante.

ARTICULO 166.- Una parte s610 puede presentar hasta cinco testigos sobre cada hecho, salvo disposici6n divers a de la ley.

ARTICULO 323.- Con la demanda debe presentar el actor los documentos en que funde la acci6n. Si no los tuviere a su disposici6n, designara el archivo 0 lugar en que se encuentren los originales, para que, a su costa, se rnande expedir copia de ellos, en la forma que prevenga la ley, antes de admitirse la demanda. Se entiende que el actor tiene a su disposici6n los documentos, siempre que legal mente pueda pedir copia autorizada de los originales. Si el autor no pudiese presentar los documentos en que funde su acci6n, por las ca1.fsasprevistas en el articulo 213, antes de admitirse la demanda se le recibira informaci6n testimonial u otra prueba bastante para acreditar los hechos por virtud de los cuales no puede presentar los documentos, y cuando esta prueba no sea po sible, declarara, bajo protesta de decir verdad, la causa por Ia que no puede presentarlos.

ARTICULO 324.- Con la demanda se acornpafiaran todos los documentos que el actor tenga en. su poder y que hayan de servir como pruebas de su parte, y, los que presentare despues, con violacion de este precepto, no le seran admitidos. S6lo Ie seran admitidos los documentos que le sirvan de prueba contra las excepciones alegadas por el demandado, los que fueren de fecha posterior a la presentaci6n de la demand a y aquellos que, aunque fueren anteriores, bajo protesta de decir verdad, asevere que no tenia conocimiento de ellos. Con las salvedades del parrafo anterior, tampoco se le recibira la prueba documental que no obre en su poder al presentar la demanda, si en ella no hace menci6n de la misma, para el efecto de que oportunamente sea recibida.

ARTICULO 328.- Los efectos del emplazamiento son: 1.- Prevenir el juicio en favor del tribunal que 10 hace; 1[- Sujetar al emplazado a seguir el juicio ante el tribunal que 10 emplaz6, siendo competente al tiempo de la citaci6n; . III.- Obligar al demand ado a contestar ante el tribunal que 10 emplaz6, salvo siempre el derecho de promover la incompetencia, y . IV.- Producir todas las consecuencias de la interpelaci6njudicial.

ARTICULO 561.- La obligaci6n de exhibir documentos y cosas en procesos que se sigan en el extranjero no comprendera la de exhibir documentos 0 copias de documentos identificados por caracteristicas genericas, En ningun caso podra un tribunal nacional ordenar ni llevar a cabo la inspeccion general de archivos que no sean de acceso al publico, salvo en los casos permitidos por las leyes nacionales.

Available at httQ:llwww.diQutados.gob.mx/LeyesBiblio/pdf/2 241213.Qdf

CODIGO FEDERAL CIVIL

Articulo 1161.- Prescriben en dos afios: [...] IV. La responsabilidad civil por injurias ya sean hechas de palabra 0 por escrito, y la que nace del dana causado por personas 0 animales, y que la ley impone al representante de aquellas 0 al duefio de estes. La prescripcion comienza a correr des de el dia en que se recibio 0 fue conocida la injuria 0 desde aquel en que se cause el dana; [... ]

Articulo 1158.- La prescripcion negativa se verifica por el solo transcurso del tiempo fijado por la ley.

Articulo 1168.- La prescripcion se interrumpe: 1. Si el poseedor es privado de la posesion de la cosa 0 del goce del derecho por mas de un afio; II. Por demanda u otro cualquiera genero de interpelacion judicial notificada al poseedor 0 al deudor en su caso; Se considerara la prescripcion como no interrumpida por la interpelacion judicial, si el actor desiste de ella, 0 fuese desestimada su demanda; [... ]

Available at: httQ:llwww.diputados.gob.mx/LeyesBiblio/htmll.htm

Constituci6n Federal de Mexico

Articulo 10. En los Estados Unidos Mexicanos todas las personas gozaran de los derechos humanos reconocidos en esta Constitucion y en los tratados internacionales de los que el Estado Mexicano sea parte, asi como de las garantias para su proteccion, cuyo ejercicio no podra restringirse ni suspenderse, salvo en los casos y bajo las condiciones que esta Constitucion establece.

l-..] Queda prohibida toda discriminaci6n motivada par origen etnico 0 nacional, el genero, la edad, las discapacidades, la condicion social, las condiciones de salud, la religion, las opiniones, las preferencias sexuales, el estado civil 0 cualquier otra que atente contra la dignidad humana y tenga por objeto anular 0 menoscabar los derechos y libertades de las personas. ,

EXHIBITS

MEXICAN SUPREME COURT CASE RESPONSABILIDAD OBJETIVA. COMPETENCIA EN UN JUICIO. EN CONTRA DE DEMANDADOS CON DOMICILIOS DIVERSOS SI EL ACTOR NO ELiGIO UN JUEZ QUE EJERZA JURISDICCION SOBRE ALGUNO DE SUS DOMICILIOS. CORRESPONDE AL JUEZ DEL DOMICILIO DE LOS DEMANDADOS QUE PREVINO. (LEGISLACIONES DE LOS ESTADOS DE JALISCO Y NAYARIT).

De conformidad con 10 establecido por el articulo 24, fracci6n IV, del C6digo Federal de Procedimientos Civiles aplicable por estar en conflicto los c6digos procedimentales civiles de los Estados de Jalisco y Nayarit, cuando se ejerce una acci6.n personal como 10 es la responsabilidad objetiva originada en los dafios causados en un accidente de transite, sera competente el juez del domicilio del demandado. Ahora bien, si existen varios demandados con domicilios diversos las legislaciones procesales civiles de las entidades federativas citadas concuerdan en que sera competente el juez que del domicilio de alguno de los demandados haya -elegido el actor. Sin embargo, si el juez elegido por el actor fue el del lugar en que ocurri6 el accidente de transite y que no ejerce jurisdicci6n sobre el domicilio de alguno de los demandados, ante la inexistencia en los C6digos de Procedirnientos Civiles de los Estados de Jalisco y Nayarit de una regia competencial para esta hip6tesis, resulta aplicable supletoriamente el articulo 24, fracci6n VIII, del C6digo Federal de Procedimientos Civiles que establece que cuando conforme a las reglas de competencia resulten competentes diversos tribunales, se decidira en favor del que haya prevenido en el conocimiento, de 10 que cabe concluir que cuando haya demandados con domicilios diversos sin que el actor haya elegido un juez que ejerza jurisdicci6n sobre alguno de sus domicilios, sera competente el juez que del domicilio de alguno de 16s demandados haya prevenido en el conocimiento del asunto.

Competencia 7/89. Suscitada entre los Jueces Septimo de 10 Civil de Guadalajara, .Jalisco y Mixto de Primera lnstancla de Santiago lxcuintla, Nayarit. 13 de julio de 1989. Cinco votos. Ponente: Mariano Azuela Guitron. Secretaria: Marfa Estela Ferrer Mac Gregor Poisot Competencia civil 191/88.' Suscitada entre los jueces Septimo de 10 Civil de Guadalajara, Jalisco, y Mixto de Primera lnstancia de Santiago lxcuintla, Nayarit. 13 de julio de 1989. Cinco votes. Ponente: Mariano Azuela Guitron. Secreta ria: Lourdes Ferrer Mac Gregor Poisot. vease: Semanario Judicia! de ta Federacion, Septima Epoca, volurnenes 217-228, Cuarta parte, pagina 287. Netas: En el lnforme de 1989, esta tesis aparece bajo el rubro "COMPETENCIA EN UN JUICIO DE RESPONSABILlDAD OBJETiVA EN CONTRA DE DEMANDADOS CON DOMIClUOS DIVERSOS SI EL ACTOR NO EUGIO UN JUEZ QUE EJERZA JURISDICCION SOBRE ALGUNO DE SUS DOMICILlOS. CORRESPONDE AL JUEZ DEL DOMICILIO DE LOS DEMANDADOS QUE PREVINO (ESTADOS DE JALlSCO Y NAYAR!T).". En ef Torno IV del Semanario Judicial de la Federacion se cita como precedents e1 publicado en la Septima EPOC3, Volumenes 217-228, Cuarta Parte, pagina 337, el cual se corrige como aqui se sefiala. Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 1 of 18 PageID #: 3074

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION

HOLLY ANN SACKS, Individually and § as Representative of the Estate of § EXHIBIT "B" RICHARD TODD SACKS, MELVIN § PHILLIP SACKS, and MARILYN § PROCTOR, § Plaintiffs § § V. § No. 5:04CV73 § FOUR SEASONS HOTEL LIMITED § and FOUR SEASONS PUNTA MITA, § S.A. de C.V., § Defendants §

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the

Adoption of Local Rules for Assignment of Duties to United States Magistrate Judges, Defendants’

Motion for Relief from Court Order (Docket Entry # 119) was referred to the Honorable Caroline

M. Craven for the purpose of preparing a report and recommendation. The Court, having reviewed

the relevant briefing and hearing arguments of counsel,1 recommends Defendants’ motion be

I.

FACTUAL BACKGROUND

Holly Ann Sacks, Individually and as Representative of the Estate of Richard Todd Sacks,

Melvin Phillip Sacks, and Marilyn Proctor (“Plaintiffs”) bring this diversity cause of action against

Four Seasons Hotels Limited, a Canadian corporation, and Four Seasons Punta Mita, S.A. de C.V.,

1 The Court conducted a hearing on Defendants’ motion on May 30, 2007. Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 2 of 18 PageID #: 3075

a Mexican corporation (“Defendants”), alleging on or about June 6, 2003, Plaintiff Holly Ann Sacks

and Richard Todd Sacks checked into the Four Seasons Resort, Punta Mita, Mexico (“the resort”).

Plaintiffs assert negligence, breach of duty of care, wrongful death, and survival causes of action

against Defendants arising from the death of Richard Sacks (the “decedent”) on June 8, 2003, while

the Sacks were staying in the resort. At the time of his death, the decedent resided in Texas. Holly

Sacks currently resides in Dallas County, Texas. Melvin Sacks is a citizen of Texas, and Marilyn

Proctor is a citizen of Massachusetts.

II.

PROCEDURAL BACKGROUND

On July 7, 2005, Defendants filed their Motion to Dismiss Under the Doctrine of Forum Non

Conveniens. The next day, Defendants filed their Motion for Determination of Law Pursuant to Rule

44.1. After a hearing on Defendants’ motions, on March 7, 2006, the undersigned issued a Report

and Recommendation recommending Defendants’ motion to dismiss be denied. The undersigned

further recommended that the Court’s ruling on Defendant’s motion for determination of law

pursuant to Rule 44.1 be that Texas law shall apply to both liability and damages in this case.

In the Report and Recommendation, the undersigned determined that Mexico is not an

available foreign forum in this case for the following six reasons. First, under Mexican law, the

statute of limitations for refiling had expired. Second, in Mexico, parties cannot consent to U.S.

procedural rights, such as jurisdiction. Third, because the theory of preemptive jurisdiction is deeply

rooted in Mexican law, Mexico is not available because Plaintiffs have not chosen Mexico as the

forum. Fourth, the primary wrongdoing in this case originated in Canada and the United States, and

therefore, no alternative forum can exist in Mexico. Fifth, a “return jurisdiction” clause does not

2 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 3 of 18 PageID #: 3076

change the Court’s opinion that Mexico is not an available alternative forum. Sixth, a Mexican court

lacks territorial jurisdiction over Canadian defendant Four Seasons Hotels Limited.

In addition, the undersigned held Mexico is not an adequate forum. Specifically, the

undersigned found that a transfer to Mexico would be unfair to Plaintiffs because (1) Mexico does

not have procedural safeguards to permit Plaintiffs to develop their evidence; (2) no Mexican

attorney would be likely to take this case on a contingency fee basis; (3) proceedings in Mexico will

not be concluded within a reasonable time frame; (4) Mexico’s very limited damages recovery

scheme is so clearly unsatisfactory in this case that these Plaintiffs would, in essence, have no

remedy; and (5) the United States is strongly connected to the parties and evidence in this case.

(Report and Recommendation at pg. 14).

Even though the undersigned found Defendants had not met their initial burden of

establishing that Mexico is an available and adequate foreign forum, the Court still weighed the

private and public interest factors. After consideration of the factors, the undersigned concluded they

weighed in favor of keeping Plaintiffs’ case in the United States. (Id. at pgs. 17-21).

Finally, the undersigned weighed the relevant factors in considering choice of law and

concluded Texas law should apply to both liability and damages because Texas has the “most

significant relationship.” In so concluding, the undersigned first found Texas has the strongest

interest in determining Plaintiffs’ damages theory, stating it “makes little sense to apply Mexico’s

measure of damages, which indexes the amount of recovery to the prevailing wages set by the labor

law of that nation, when [the parties] are residents of Texas.” (Report and Recommendation at pg.

36, quoting Gutierrez v. Collins, 583 S.W.2d312, 319 (Tex. 1979)). The undersigned noted the only

party that Mexican law would protect is Defendant Four Seasons Punta Mita whereas the decedent,

3 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 4 of 18 PageID #: 3077

two Texas plaintiffs, one Massachusetts plaintiff, and a Canadian defendant, do not derive their

earnings from Mexican wages. The undersigned further found Texas has the “most significant

relationship” in determining Defendants’ liability, noting some of the alleged tortious conduct that

allegedly caused Mr. Sacks’ death occurred in Canada and the United States, not Mexico.

On March 24, 2006, the District Court adopted the Report and Recommendation as the

findings and conclusions of the Court. On October 19, 2006, the Court certified the March 24, 2006

Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On January 22, 2007, the United

States Court of Appeals for the Fifth Circuit denied leave to appeal from the Court’s interlocutory

order entered on October 19, 2006.

III.

DEFENDANTS’ MOTION FOR RELIEF FROM COURT ORDER

A. Defendants’ original motions

In their original motions, Defendants requested Plaintiffs’ claims against them be dismissed

under the doctrine of forum non conveniens and determine that Mexican law governs the issues in

this case. According to Defendants, Mexico provides an adequate alternative forum in this case, and

the private and public interest factors also weigh in favor of resolving this case in Mexico.

Defendants further asserted Mexico, not Texas, has the “most significant relationship” to this case,

weighing in favor of Mexican law. In support of their motions, Defendants submitted affidavits from

Jorge de Presno and Carlos Serna, both Mexican attorneys, who provided expert opinions on the law

of Mexico and the State of Nayarit.

Plaintiffs opposed both motions, asserting (1) Mexican courts do not provide an adequate or

alternative forum; (2) the public and private interest factors weigh in favor of the United States; and

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(3) the Court should apply Texas law in this case. In their responses, Plaintiffs submitted the

Affidavits of Dr. Leonel Pereznieto-Castro and Henry S. Dahl. Pereznieto is an expert on the laws

of Mexico and the Mexican State of Nayarit. He is a practicing attorney and law professor in

Mexico, specializing in conflict of laws. Dahl is an expert in international and comparative law.

He has worked on cases in Mexico specifically related to forum non conveniens issues.

B. Defendants’ current motion

Currently, Defendants move for relief from this Court’s March 24, 2006 Order adopting the

Magistrate Judge’s March 7, 2006 Report and Recommendation denying Defendants’ forum non

conveniens motion to dismiss and Defendants’ Rule 44.1 motion for application of the law of

Nayarit, Mexico. Defendants move for relief, asserting there is newly discovered evidence and

evidence of fraud warranting a reconsideration of this Court’s March 24, 2006 Order. See FED . R.

CIV . P. 60(b)(2) and (3). Specifically, Defendants assert Plaintiffs’ lead expert on the law of Nayarit

and Mexico, Dr. Pereznieto, was sanctioned on December 18, 2006 by the United States District

Court for the Southern District of Indiana and ordered to pay $100,000 for his “double role” as the

“mastermind” behind perpetuating a fraud upon the court regarding his service as an expert on

Mexico law relative to a forum non conveniens motion that was before that court. In re:

Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 2006 WL 3895059 (S.D. Ind. Dec.

18, 2006). The court ordered Pereznieto barred from providing further testimony against those

defendants as long as the monetary sanctions remain unpaid, and the court struck all of Pereznieto’s

opinions on Mexican law from being considered on the forum non conveniens issue. Id. at *2.

According to Defendants, the Indiana court sanctioned Pereznieto for the fraud he perpetrated

on the court, which was directly related to Pereznieto’s fraudulent activity in obtaining the dismissal

5 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 6 of 18 PageID #: 3079

of the related case in Morelos, Mexico. Here, Pereznieto relied heavily on the result from the same

case from Morelos, Mexico as a basis for his opinions on forum non conveniens that the courts of

Nayarit, Mexico would not accept jurisdiction over the instant case and therefore would not provide

an “available” alternative forum. Defendants assert Pereznieto’s opinions on the jurisdiction of the

courts in Nayarit, Mexico and his opinions on the availability of the courts in the instant case as well

as his reliance on the Morelos decision for those opinions have been directly discredited due to the

fraud. Defendants further assert consideration of this fraud should lead the Court to grant

Defendants’ forum non conveniens and Rule 44.1 motions.

IV.

APPLICABLE LAW

A. The Doctrine of Forum Non Conveniens

“The doctrine of forum non conveniens rests upon a court’s inherent power to control the

parties and cases before it and to prevent its processes from becoming an instrument of abuse or

injustice.” In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1153-54 (5th Cir. 1987)(en

banc), vacated by Pan Am. World Airways, Inc. V. Lopez, 490 U.S. 1032 (1989), reinstated except

as to damages by Air Crash Disaster v. Pan Am. World Airways, Inc., 883 F.2d 17 (5th Cir. 1989)(en

banc). Applying this power, a federal court may decline to exercise jurisdiction, even though the

court has jurisdiction and venue, “where it appears that the convenience of the parties and the court

and the interests of justice indicate that the action should be tried in another forum.” Id. at 1154.

A “federal court sitting in a diversity action is required to apply the federal law of forum non

conveniens when addressing motions to dismiss a plaintiff’s case to a foreign forum.” Id. at 1159.

In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and Koster v. American Lumbermens

6 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 7 of 18 PageID #: 3080

Mutual Casulty Co., 330 U.S. 518 (1947), the Supreme Court established the principle “that a court

may resist imposition upon its jurisdiction even when jurisdiction is authorized.” Gulf Oil, 330 U.S.

at 507. According to the Court, in deciding whether to exercise or decline jurisdiction, “the ultimate

inquiry is where trial will best serve the convenience of the parties and the ends of justice.” Koster,

330 U.S. at 527. “The determination of what is most convenient rests upon several private and

public factors which the Court stated should be considered and balanced by a court when presented

with a motion to dismiss for forum non conveniens.” In re Air Crash Disaster Near New Orleans,

821 F.2d at 1162.

The decision of whether to grant or deny a motion to dismiss for forum non conveniens is

within the discretion of the court. Id. at 1165. The decision “should be an exercise in structured

discretion founded on a procedural framework guiding the district court’s decisionmaking process.”

Id. “A defendant of course bears the burden of invoking the doctrine and moving to dismiss in favor

of a foreign forum.” Id. at 1164. “This burden of persuasion runs to all elements of the forum non

conveniens analysis,” including demonstrating that an “adequate and available forum exists as to all

defendants if there are several.” Id. If defendant meets this initial burden, “it must also establish that

the private and public interests weigh heavily on the side of trial in the foreign forum.” Id.

B. Available and Adequate Alternative Forum

In Piper Aircraft Co. V. Reyno, 454 U.S. 235, 255 (1981), the Supreme Court reaffirmed the

principles enunciated in Gulf Oil and Koster as appropriate for use in diversity cases. In Reyno, the

Court emphasized that prior to balancing the private and public interest factors, a court must first

determine whether another adequate forum is available to hear the case “because the forum non

conveniens presupposes the existence of at least two forums in which all defendants are amenable

7 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 8 of 18 PageID #: 3081

to process.” In re Air Crash Disaster Near New Orleans, 821 F.2d at 1164. “The Reyno court also

stated that a foreign plaintiff’s selection of an American forum deserves less deference than an

American citizen’s selection of his home forum.” Id. However, a citizen’s selection of his home

forum is not dispositive, and “if the balance of conveniences suggests that trial in the chosen forum

would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Reyno, 454

U.S. at 257, n. 23.

The issue of whether an available and adequate foreign forum exists is a two-part inquiry:

availability and adequacy. In re Air Crash Disaster Near New Orleans, 821 F.2d at 1165. “A

foreign forum is available when the entire case and all parties can come within the jurisdiction of that

forum.” Id. “A foreign forum is adequate when the parties will not be deprived of all remedies or

treated unfairly . . . even though they may not enjoy the same benefits as they might receive in an

American court.” Id.

C. Private and Public Interest Factors

If the court decides the foreign forum is both available and adequate, the court should then

consider what forum is most convenient by balancing the numerous private and public interest

factors. Id. at 1162, 1165. The private interest factors to be considered are “the relative ease of

proof; availability of compulsory process for attendance of unwilling witnesses; and the costs of

obtaining attendance of willing. . . witnesses; probability 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.” Id. at 1162. “If the district court finds that the private interests do not weigh in

favor of the dismissal, it must then consider the public interest factors.” Id. at 1165. The public

interest factors include “the administrative difficulties flowing from court congestion; the local

8 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 9 of 18 PageID #: 3082

interest in having localized controversies resolved at home; the interest in having the trial of a

diversity case in a forum that is familiar with the law that must govern the action; the avoidance of

unnecessary problems in conflicts of law, or in application of foreign law; and the unfairness of

burdening citizens in an unrelated forum with jury duty.” Id. at 1162-63.

According to the Fifth Circuit, if the court determines the above consideration favor trial in

a foreign forum, “it must finally ensure that a plaintiff can reinstate his suit in the alternative forum

without undue inconvenience or prejudice and that if a defendant obstructs such reinstatement in the

alternative forum that the plaintiff may return to the American forum.” Id. at 1166. The denial of

a motion to dismiss for forum non conveniens may be reversed only when there has been a clear

abuse of discretion. Id. The trial court’s decision “deserves substantial deference” when the court

has considered all relevant factors and where its balancing of the factors is reasonable. Id.

PEREZNIETO’S FRAUD

In In re Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917,

920 (S.D. Ind. Nov. 14, 2006), the district court initially granted the defendants’ forum non

conveniens motion, dismissing the plaintiffs’ complaint stemming from the 2002 death of their

husband and father as a result of a roll-over of the Ford Explorer he was driving in Veracruz,

Mexico. Pereznieto was a retained expert for some of the plaintiffs in the Indiana case and had

submitted an affidavit on their behalf in opposition to the defendants’ motion. The plaintiffs

appealed the dismissal of their complaint.

While the appeal was pending, the plaintiffs’ counsel informed the Seventh Circuit Court of

Appeals that the plaintiffs had hired Pereznieto as Mexican counsel and had attempted to sue the

9 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 10 of 18 PageID #: 3083

defendants in a court in Morelos, Mexico. According to the plaintiffs, the Mexican court determined

it did not have jurisdiction to hear the case. In re Bridgestone/Firestone, Inc. Tires Product Liability

Action, 420 F.3d 702, 705 (7th Cir. 2005). Based on this new evidence, the Seventh Circuit found

the Mexican forum was not available under the circumstances, but remanded to the district court for

further investigation of the circumstances surrounding the Morelos decision because the court

expressed concerns about whether the Morelos case was handled in good faith and whether the

Morelos decision was entitled to recognition by the district court. Id. at 706.

On remand, the Indiana court conducted extensive discovery and held an evidentiary hearing.

In re Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917, 919-20

(S.D. Ind. Nov. 14, 2006). The evidence established that in filing the case in Morelos, Mexico, the

attorneys for the plaintiffs acted with the clear purpose of having the case dismissed and in seeking

that result, “manipulated the process to insure that the dismissal would be based on a particular

reason that was calculated to improve the chances of the dismissal being sustained on appeal.” Id.

at 920. The court further held the Morelos orders were obtained in bad faith and were not subject

to recognition by courts in the United States. Id.

The Indiana court further discussed Pereznieto’s involvement and found he “played a double

role in this attempted fraud on the court - as Plaintiffs’ Mexican counsel in the Morelos suit and as

an expert witness. In addition, he accepted a contingent fee interest in Plaintiffs’ recovery from the

Defendants as a compensation for his work.” Id. at 928.

On December 18, 2006, the Indiana court amended its November 14, 2006 Order and

sanctioned Pereznieto for the fraud he perpetrated on the court. In re Bridgestone/Firestone, Inc.

Tires Product Liability Litigation, 2006 WL 3895059 (S.D. Ind. Dec. 18, 2006). The court called

10 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 11 of 18 PageID #: 3084

Pereznieto the “apparent mastermind behind these frauds on the U.S. and Mexican courts” and

ordered him to pay over, as a personal sanction, the amount of one hundred thousand dollars. Id. at

*2. The court further ordered that as long as the sanction remains unpaid, Pereznieto is barred from

providing any testimony against any defendant in that cause of action anywhere in the United States.

Id. The court also struck all sworn opinions of Pereznieto, whether made directly or indirectly, in

the remaining cases in the Bridgestone/Firestone multidistrict litigation. Id.

VI.

DISCUSSION

On March 7, 2006, the undersigned recommended Defendants’ forum non conveniens and

Rule 44.1 motions be denied, first finding that Mexico is neither an available nor an adequate

alternative forum in this case. Now, Defendants assert Pereznieto’s fraud in the Indiana case should

lead the Court to grant Defendants’ forum non conveniens and Rule 44.1 motions.

In the March 7, 2006 Report and Recommendation, the Court first determined that Mexico

is not an available forum for six detailed reasons. In this portion of the Court’s analysis, the Court

referenced Pereznieto’s affidavit for the proposition that Mexico lacks territorial jurisdiction over

Canadian Defendant Four Seasons, and therefore is not an available forum. The undersigned made

no reference to the Morelos decision in its discussion. Using a different case referenced by

Pereznieto, Garcia v. Ford Motor Company, et al., as one example and Article 30, Section IV of the

Code of Civil Procedure for the State of Nayarit, the Court concluded that “a Mexican court lacks

territorial jurisdiction over Canadian defendant Four Seasons Hotels Limited.” The Court also gave

five other reasons to find that Mexico is not an available forum. These reasons are separate and apart

from the principle of territorial jurisdiction, which was the only principle connected to the Morelos

11 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 12 of 18 PageID #: 3085

decision.

Now, not only do Defendants assert the Morelos decision should be removed as authority in

this case, with which Plaintiffs and the Court fully agree, but Defendants also assert all of

Pereznieto’s opinions on the jurisdiction and availability of the courts in Nayarit, Mexico in the

instant case have been directly discredited due to the fraud in the Indiana case. However, according

to Plaintiffs, Defendants fail to articulate any valid reason for disregarding the entire expert

testimony of Pereznieto. Plaintiffs assert the fact that an expert witness has been criticized and

sanctioned in another case against another defendant by a another court, does not, standing alone,

justify tossing out all of that witness’ work in the instant case.

Unlike the factual situation in this case, the allegations against Pereznieto in the Indiana case

were fully developed after almost one year of discovery and a two-day evidentiary hearing. There,

the evidence established that in filing the case in Morelos, Mexico, the attorneys for the plaintiffs,

along with Pereznieto, acted with the clear purpose of having the case dismissed and in seeking that

result, “manipulated the process to insure that the dismissal would be based on a particular reason

that was calculated to improve the chances of the dismissal being sustained on appeal.” In re

Bridgestone/Firestone, Inc. Tires Product Liability Litigation, 470 F.Supp.2d 917, 920 (S.D. Ind.

Nov. 14, 2006). Here, Defendants have not presented evidence of any fraud being perpetrated upon

this Court in this case. Instead, Defendants rely on the fraud found by the Indiana court, asserting

that finding justifies invalidation of Pereznieto’s opinions in this case. Defendants further assert

Pereznieto’s fraud in the Indiana case affected this Court’s ruling on its forum non conveniens and

12 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 13 of 18 PageID #: 3086

Rule 44.1 motions.2

Although the Court is not convinced Pereznieto’s fraud in the Indiana case necessitates the

Court’s complete disregard of Pereznieto’s opinions in this case, out of an abundance of caution, the

Court disregards the Morelos decision and strikes all of Pereznieto’s opinions offered in this case.

However, the Court disagrees with Defendants that taking the Morelos decision and Pereznieto’s

opinions completely out of this case and out of the forum non conveniens analysis warrants a

different ruling from the Court on Defendants’ forum non conveniens and Rule 44.1 motions. This

is so for the following reasons.

Even disregarding the Morelos case and Pereznieto’s affidavit in its entirety, Plaintiffs have

offered other extensive analysis of Mexican law from Plaintiffs’ other expert, Henry S. Dahl. The

Court specifically relied on and made reference to Dahl’s affidavit in its March 7, 2006 Report and

Recommendation on pages 11 through 14.

Defendants assert Dahl’s affidavit is infected by Pereznieto’s fraud because Dahl stated he

had read Pereznieto’s affidavit and agreed with his views. However, the Court is not convinced

Dahl’s opinions, as an independent expert on Mexican law, are inextricably linked to Pereznieto’s

fraud in the Indiana case as to invalidate Dahl’s opinions in this case. The Court therefore considers

Dahl’s affidavit.

In his affidavit, Dahl opines that Mexico is not an available forum and states his reasons,

primarily based upon his interpretation of Mexican law. First, Dahl opines that the effects of forum

non conveniens violate Mexican law. Second, Dahl explains preemptive jurisdiction in Mexican law,

2 Again, the undersigned made no reference to the Morelos decision in its March 7, 2006 Report and Recommendation.

13 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 14 of 18 PageID #: 3087

concluding that after a case has been filed in a United States court, Mexican jurisdiction is

preempted. Third, Dahl expresses his opinion that procedural rights that may be subject to

negotiation in the United States legal system cannot be agreed to by the parties in the Mexican

context. Fourth, Dahl explains that jurisdiction over Canadian Defendant Four Seasons would not

be in Mexico. Dahl’s affidavit provides adequate support for the Court’s conclusion regarding the

lack of an available forum in Mexico.

Moreover, in response to Defendants’ current motion, Plaintiffs have filed with the Court

seventeen cases filed by Mexican citizens that were refiled in Mexico after dismissed in the United

States on forum non conveniens grounds. In each case, the Mexican court dismissed the case for lack

of jurisdiction.3

The Court, having considered the cases filed by Plaintiffs and without relying on the Morelos

decision or Pereznieto’s opinions, remains of the opinion, based on the facts of this case, that Mexico

is not an available forum. First, there is the limitations issue. Under the Civil Code for the State of

Nayarit Article 1145, the statute of limitations for this case is two years. The decedent died on June

8, 2003, and Plaintiffs persuasively argue Defendants improperly assert the expired two-year statute

of limitations in this case would be tolled. According to Plaintiffs, Nayarit’s tolling statute only

applies to lawsuits filed within the territories of Mexico.

As for Defendants’ offer to consent to the jurisdiction of the Mexican legal system, Dahl

3 The Court notes that in the Indiana case, the court was not concerned with the availability of Mexico as a forum in general, but only with the two specific questions referred by the Seventh Circuit Court of Appeals. Therefore, the Indiana court did not consider the decisions submitted by the plaintiffs wherein Mexican courts had refused jurisdiction. In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 470 F.Supp.2d 917, 920 n.5 (S.D. Ind. 2006).

14 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 15 of 18 PageID #: 3088

makes clear in his affidavit that many procedural rights that are subject to negotiation in the United

States legal system cannot be agreed to by the parties in a Mexican court. According to Dahl,

stipulations made before a United States court to waive the Mexican statute of limitations are

meaningless in Mexico. The Court questions whether Defendants’ consent or submission to the

jurisdiction of a Mexican court would actually confer jurisdiction under the laws of Mexico.

Moreover, there is a question of whether a Mexican court would even accept jurisdiction over

this action. Dahl explains in his affidavit that the theory of preemptive jurisdiction is deeply rooted

in Mexican law, and the filing before this Court preempts Mexican jurisdiction. Plaintiffs have not

chosen, and will not be voluntarily choosing, the Mexican forum to file suit as is required under

Article 8 of Nayarit’s Civil Procedure law– no matter how adamantly Defendants want to submit

themselves to the jurisdiction of the Mexican court or if this Court dismisses this case on forum non

conveniens grounds.

Second, a Mexican court lacks territorial jurisdiction over Canadian Defendant Four Seasons

Hotels Limited. According to Dahl, Article 30, Section IV of the Code of Civil Procedure for the

State of Nayarit, determines that jurisdiction in a personal injury action lies in the defendant’s

domicile, and when a defendant is not domiciled in a particular judge’s jurisdiction, the Mexican

judge will declare himself without jurisdiction and must refuse to accept or admit the case into his

court. Defendants have failed to show that Mexico is an available alternative forum in this case.

Even though Defendants have failed to show that a Mexican forum is available and the Court need

not proceed further into the forum non conveniens inquiry, assuming arguendo Mexico is an

available forum, the next step would be to analyze the adequacy of Mexico as an alternative forum.

In the March 7, 2006 Report and Recommendation, the undersigned found that Mexico is an

15 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 16 of 18 PageID #: 3089

inadequate alternative forum. In so doing, the undersigned gave five reasons for the recommendation

to retain this case. None of the reasons contained any reference to the Morelos decision, and this

issue has nothing to do with the Morelos decision. Even though the undersigned considered

Pereznieto’s affidavit regarding discovery practices in Mexico and Mexico’s limited damages

recovery scheme, the Court’s conclusion is not altered even removing from the Court’s consideration

Pereznieto’s affidavit.

Dahl, Plaintiffs’ other expert on Mexican law, opines that Mexico is not an adequate forum

because of the limited possible recovery and the unlikelihood of obtaining Mexican counsel on a

contingency fee basis. Thus, the affidavit of Dahl provides adequate support for the Court’s

conclusion regarding the lack of an adequate forum in Mexico. The Court, having removed

Pereznieto’s opinions from its consideration, remains of the opinion Mexico is not an adequate

forum.

Even if the Court were to find Mexico is an adequate foreign forum, Defendants’ motion for

relief from the Court’s March 24, 2006 Order still fails because the private and public interest factors

weigh in favor of keeping Plaintiffs’ case in the United States. The Court has determined that, if

Mexico were an available and adequate forum, only two of the four private interest factors would

weigh in favor of resolving this case in Mexico. In addition, the Court finds the public interest

factors (the 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, and the unfairness of burdening citizens in an unrelated forum with jury duty) weigh

in favor of resolving this litigation in Texas.

16 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 17 of 18 PageID #: 3090

The Court notes that in response to Defendants’ current motion, Plaintiffs have provided the

Court the February 27, 2004 Order by the Southern District of Indiana, wherein the court denied the

defendants’ motions to dismiss for forum non conveniens as the United States resident plaintiffs for

accidents occurring in Mexico and where there was a non-Mexican defendant. In re

Bridgestone/Firestone, Inc. Tires Products Liability Litigation (S.D. Ind. February 27, 2004). The

court held the United States resident plaintiffs’ cases should not be dismissed because the

presumption of convenience accorded a plaintiff’s choice of her home forum as well as the balance

of the private and public interest factors pointed toward retention of the cases in the federal courts

of Texas. Id.

Here, two of the three plaintiffs reside in Texas. Both Defendants conduct business in Texas.

The relationship between the parties began in Texas. The Court finds Plaintiffs’ case should not be

dismissed because the presumption of convenience accorded Plaintiffs’ choice of her home forum,

as well as the balance of the private and public interest factors, weigh in favor of retaining this case.

VII.

RECOMMENDATION

In sum, the Court removes from its consideration all of Pereznieto’s opinions. The finding

that a Mexican forum is unavailable or the finding that a Mexican forum is inadequate, each alone,

prevents a dismissal of this case. Even so, the Court continued with its forum non conveniens

analysis and found that the balance of private and public interest factors favored resolving the case

in Texas. Again, this finding that the interest factors weigh in favor of United States jurisdiction,

alone, prevents dismissal. At each of the three steps in the Court’s analysis (availability, adequacy,

and balance of interest factors), and without any reliance on the Morelos decision referred to by

17 Case 5:04-cv-00073-DF-CMC Document 141 Filed 06/07/07 Page 18 of 18 PageID #: 3091

Pereznieto in his affidavit or any of Pereznieto’s other opinions, the Court concludes that Plaintiffs’

case should not be dismissed and transferred to Mexico. For all these reasons, the Court

recommends Defendants’ motion for relief from the Court’s March 24, 2006 Order be denied. Based

on the foregoing, it is

RECOMMENDED that Defendants’ Motion for Relief from Court Order (Docket Entry

# 119) be DENIED.

Within ten (10) days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. . 636(b)(1)(C).

Failure to file written objections to the proposed findings and recommendations contained

in this report within ten days after service shall bar an aggrieved party from de novo review by the

district court of the proposed findings and recommendations and from appellate review of factual

findings accepted or adopted by the district court except on grounds of plain error or manifest

injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir.1988).

SIGNED this 7th day of June, 2007.

____________________________________ CAROLINE M. CRAVEN UNITED STATES MAGISTRATE JUDGE

18 Appendix Tab 4 8/12/20153:54:48 PM Chris Daniel - District Clerk Harris County Envelope No: 6469324 By: TOLMAN, TAMMY E Filed: 8/12/2015 3:54:48 PM Pgs-2 Pgs-2 CAUSE NO. 2015-28543 PABAY MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT PJURY INDIVIDUALLY AND AS NEXT FRIEND § OF KAREN MARIEN ANDRADE LOPEZ, § MAIRET SAMELI ANDRADE LOPEZ § AND IMAR GERARDO ANDRADE LOPEZ § ON BEHALF THE ESTATE OF OMAR § GERARDO ANDRADE LOPEZ, ET AL § § V. § OF HARRIS COUNTY, TEXAS § ARNOLD & ITKIN, L.L.P., § BECK REDDEN, L.L.P., § ALBRITTON LAW FIRM, § KURT ARNOLD, CORY ITKIN, § JASON ITKIN, RUSSELL POST, § FIELDS ALEXANDER, JAS BRAR and § ERIC ALBRITTON § 11TH JUDICIAL DISTRICT

ORDER DENYING DEFENDANTS' PLEA TO THE JURISDICTION AND PLEA IN ABATEMENT

On this day came on to be considered the Plea to the Jurisdiction, and, in the Alternative,

Plea in Abatement of Defendants, ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P.,

ALBRITTON LAW FIRM, KURT ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL

POST, FIELDS ALEXANDER, JAS BRAR AND ERIC ALBRITTON, and Plaintiffs

Response to All Defendants' Plea to the Jurisdiction, and, In the Alternative, Plea in Abatement,

and the Court, after considering same and hearing argument of counsel is of the opinion that said

Ordered that all Pleas to the Jurisdiction and all Pleas in Abatement of Defendants,

ARNOLD & ITKIN, L.L.P., BECK REDDEN, L.L.P., ALBRITTON LAW FIRM, KURT

ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS ALEXANDER, JAS

BRAR AND ERIC ALBRITTON, are hereby denied in their entirety. Signed this __ day of , 2015.

Signed: . ~ /)D I A rs: 9/17/2015 fWd' --------- J~ Judge Mike Miller Appendix Tab 5 1 Status Conference October 19, 2015

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES 2 TRIAL COURT CAUSE NO. 2015-28543

4 LOPEZ DOMINGUEZ, ET AL ) IN THE DISTRICT COURT ) 5 vs. ) HARRIS COUNTY, TEXAS ) 6 ARNOLD & ITKIN, LLP, ET AL) 11th JUDICIAL DISTRICT

7 8

10 _____________________________________________ 11 STATUS CONFERENCE _____________________________________________ 12

13 14

16 17

18 On the 19th day of October, 2015, the following

19 proceedings came on to be held in the above-titled and 20 numbered cause before the Honorable Mike Miller, Judge

21 Presiding, held in Houston, Harris County, Texas.

22 Proceedings reported by computerized stenotype 23 machine.

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 2 Status Conference October 19, 2015

1 APPEARANCES

2 Mr. David Kassab 3 KASSAB LAW FIRM 1420 W. Alabama Street 4 Houston, Texas 77004 Telephone: 713-522-7400 5 Counsel for PLAINTIFFS

6 Mr. Samuel A. Houston 7 SHEPHERD, SCOTT, CLAWATER & HOUSTON, LLP 2777 Allen Parkway, 7th Floor 8 Houston, Texas 77019 Telephone: 713-650-6600 9 Counsel for DEFENDANT ARNOLD & ITKIN, LLP

10 Mr. Reagan W. Simpson 11 YETTER COLEMAN, LLP 909 Fannin St., #3600 12 Houston, Texas 77010 Telephone: 713-632-8002 13 Counsel for DEFENDANTS BECK REDDEN, RUSSELL POST, FIELDS ALEXANDER, JAS BRAR 14

19 20

22 23

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 3 Status Conference October 19, 2015

1 P R O C E E D I N G S 2

3 THE COURT: Here we go. I will be the

4 first one to admit that it was fairly obvious, I think, 5 that I was wavering under the misimpression that all

6 denials of the Pleas to the Jurisdiction were subject to

7 interlocutory appeal. I was confusing them, I guess, 8 because the City of Houston takes up every single one.

9 I guess there is no specific statutory prerogative to do

10 the same in this context. It was obvious that is what I 11 thought.

12 Anyway, I read -- I want to be candid,

13 okay, that to say I was absolutely confident that I was 14 making the right ruling with regard to whether we have

15 sufficient ripeness in this case, I do not have -- I

16 still have some level of ambivalence. It may be my lack 17 of familiarity with malpractice cases and how they

18 typically run. It seems to me there is probably some

19 requirement -- like I said last time, I was certainly 20 under the impression that I thought and, frankly, I

21 thought you had to try the case, take it up on appeal

22 and go the whole nine yards before you can file a 23 malpractice case. I always believed that to be the

24 circumstance.

25 But then the cases you cited. I am not

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 4 Status Conference October 19, 2015

1 sure really -- that is the case in every Summary 2 Judgment I deny. I can say the same thing on every

3 single Summary Judgment. If I deny the Summary

4 Judgment, that means we are going to have to try the 5 case. Spend all that money. Would it help everyone to

6 know if I did it right? Sure. We don't do things that

7 way. 8 I am not sure that I see any distinction

9 in this case from every other Summary Judgment that I am

10 not sure whether I did the right thing when I deny it. 11 If I am wrong and I should have granted it, yeah, we

12 wouldn't have to try the case. It would save a lot of

13 time 18 months from now when we get the opinion. 14 Anyway, I don't know. I am about as sure

15 or unsure the issue you are presenting today as I was

16 when I had to deal with that ruling on the Plea to the 17 Jurisdiction.

18 MR. HOUSTON: Well, appreciate that. But

19 really what we set this morning it is about the status 20 conference, which I appreciate what you are saying.

21 I do think it is a little different than

22 your normal denial of a Summary Judgment when you have 23 two parties. This case involves already 15 plaintiffs

24 and they brought in more, however many the other day.

25 We are talking about much more intense discovery, much

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 5 Status Conference October 19, 2015

1 more long term. 2 Also particularly since we are talking

3 about a novel issue, that is whether or not a plaintiff

4 can sue their lawyers when all that has been happening 5 is you have had a conditional grant of a forum non

6 conveniens. In other words, there is no case law.

7 There is no Texas case law specifically addressing it. 8 Really all we are asking because I know

9 you struggled with the issue on whether the abatement

10 and Plea to the Jurisdiction are correct, but under this 11 statute, the permissive appeal, it seems to me this

12 would be the perfect situation for it. It is not your

13 run of the mill Summary Judgment. We are very early in 14 the case so we can decide about the abatement. They

15 still have an opportunity to pursue the case. If we are

16 right, they need to go ahead and pursue the cases in 17 Mexico and that is what they need to do.

18 Really I looked at this and looking at the

19 statute, I don't know how often you have addressed this 20 issue. But it is really a two-step process.

21 THE COURT: Haven't done it in seven

22 years. 23 MR. HOUSTON: It is a two-step process and

24 this is what is important. The order we submitted and,

25 again, the issues that I think were before you simply

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 6 Status Conference October 19, 2015

1 allows us within 15 days to see if the Court of Appeals 2 is going to look at it anyway. A lot of those issues

3 that you raised and whether or not they -- we would know

4 -- 5 THE COURT: Tell me about that. Assuming

6 that I were to say, yes, you still have to convince the

7 Court of Appeals that I had a lick of sense when I said 8 yes, right?

9 MR. HOUSTON: Right.

10 THE COURT: Frankly, from the cases they 11 have cited, that doesn't happen very often, does it?

12 MR. HOUSTON: Maybe not.

13 THE COURT: Are there opinions -- do they 14 write an opinion when they say, yes, we will agree to

15 hear that?

16 MR. SIMPSON: Sure. They write an 17 opinion.

18 MR. HOUSTON: I don't think there is a lot

19 of case law period on this. 20 MR. SIMPSON: When the statute was first

21 passed, both sides had to agree. That didn't happen

22 very often. Sometimes it did. 23 THE COURT: Every now and then it can.

24 Both sides can say -- I agree. It can happen.

25 MR. SIMPSON: There have been instances

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 7 Status Conference October 19, 2015

1 where both sides agree and the Court of Appeals said, 2 no, we don't agree. They have to make a decision about

3 using their judicial resources in what they decide and

4 (inaudible). 5 Here our argument is it is a controlling

6 issue of law on whether it is ripe and you would have a

7 conditional dismissal for forum non conveniens. That is 8 an issue that itself has not been addressed by any Texas

9 case. It is a novel issue.

10 They cite some -- they claim analogous 11 cases from other jurisdictions. We have an analogous

12 case from this jurisdiction. But there is nothing that

13 has been dealt with in terms of -- the Court has dealt 14 with the conditional dismissal which is all we are

15 talking about in this case. It is a novel issue. It

16 hasn't been decided. 17 THE COURT: The problem is there is so

18 many issues is my difficulty. It is not just one issue.

19 I will be -- I felt like I had a reasonable grasp of all 20 the different layers and arguments.

21 What you-all are saying is even if it is

22 not -- you are saying there is a cause of action out 23 there from the fact that they couldn't pursue their

24 Mexican law claims in the U.S., even if it is not

25 otherwise ripe? Tell me about that again.

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 8 Status Conference October 19, 2015

1 MR. KASSAB: Absolutely, Your Honor. 2 David Kassab on behalf of the plaintiffs. That issue is

3 if the lawyers would have handled the forum non

4 conveniens motion from the outset properly, the argument 5 is that they would have been able to pursue those

6 Mexican law claims even if that is all that is left at

7 the end of the day in the U.S. 8 We have submitted expert testimony from

9 Dahl and another Mexican law lawyer that says that being

10 limited in Mexico they're not entitled to the same 11 amount of discovery that they have in the United States.

12 They're essentially limited in how they can pursue and

13 prove their case. So we have argued that their ability 14 to pursue those Mexican law claims even in the U.S. is

15 some benefit that the lawyers deprive them of through

16 their malpractice. 17 MR. SIMPSON: But it is a conditional

18 dismissal. That is the problem. The court said: Go to

19 Mexico. If you don't succeed down there, come back to 20 us. They haven't lost anything at this point.

21 It is sort of like -- it is not exactly

22 the same -- but let's say I am a plaintiff's lawyer, I 23 don't argue well enough about a continuance and my case

24 gets delayed six months.

25 THE COURT: My difficulty is and, again, I

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 9 Status Conference October 19, 2015

1 am going to be candid with you. I don't think that 2 analogy is appropriate in this case. I think -- if you

3 send them back to Mexico at this point and tell them

4 they have to litigate through the entire system, I think 5 it is a black hole that they will never come back from.

6 I think you are dismissing the case. I think it is

7 dispositive of the case. There is really not a remedy 8 that will allow them -- how many plaintiffs are there?

9 MR. KASSAB: Your Honor, we have added

10 additional ones. I believe -- we have some we haven't 11 quite filed yet. I believe there is going to be around

12 20.

13 THE COURT: You are going to have to go 14 file and litigate 20 cases, take it all the way through

15 the appellate system before they have a right to bring

16 this case. I just have a sense that is a burden that 17 they will never -- my sense is that what you are doing

18 here, if I grant this Plea to the Jurisdiction, it is

19 dispositive of the case. That is the whole idea. They 20 will never come back. You will never see --

21 Then we have to argue whether it is a

22 final judgment in Mexico and whether or not there were 23 other appellate remedies they could have pursued. It

24 will never become ripe, ever.

25 I very honestly think that is precisely

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 10 Status Conference October 19, 2015

1 what is going on here is that we are going to send it 2 down the black hole and it is never going to come back.

3 That is just my impression.

4 As is often the case, my ruling may have 5 been more of a pragmatic -- it may turn out that is what

6 the law is. Sorry. You have got to go back and

7 litigate all these and we all know we are never going to 8 see them again if that happens. Maybe that is the

9 outcome we will get. But I don't feel comfortable doing

10 that. I still don't feel comfortable doing that. That 11 is kind of where I ended up for a variety of reasons.

12 I kind of doubt also this is the sort of

13 thing they had in mind because of the multiplicity of 14 the issues and how complex it is. To say that there is

15 some central narrow controlling legal issue that can be

16 determined here that is outcome determinative, I think 17 that is wishful thinking. I think that is probably the

18 response you are going to get from them.

19 They do have the prerogative to do that. 20 As you pointed out in your cases, that seems to be what

21 they more often do than not, right?

22 MR. KASSAB: They are just talking about 23 deny it for lack of jurisdiction.

24 THE COURT: I don't know. The Court of

25 Appeals will say that this is inappropriate for a

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 11 Status Conference October 19, 2015

1 permissive appeal. 2 MR. KASSAB: Then they will dismiss it for

3 lack of jurisdiction under those circumstances because

4 they don't have the jurisdiction under this statute. 5 THE COURT: Isn't that what you found --

6 your argument, in essence, is this isn't a proper case

7 and you have cited all the cases where they agreed with 8 you and refused to hear it?

9 MR. KASSAB: But I think that the trial

10 court is the first doorway to prevent us from going 11 through that unnecessary process.

12 THE COURT: I will tell you what I am

13 going to do. I will give you your opportunity in the 14 Court of Appeals. If the Court of Appeals agree it is a

15 controlling issue, then perhaps I got it so wrong that

16 they want to jump in there to address it. I will give 17 you the opportunity to do that. I will give you the

18 chance and we will see what the Court of Appeals says.

19 I have my doubts. That doesn't seem unreasonable to me. 20 Frankly, I think most of the time they're not going to

21 do it.

22 MR. KASSAB: I understand the Court's 23 instruction. Are you going to be giving them that

24 opportunity with the order that is currently in place?

25 MR. HOUSTON: I was about to say, can we

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 12 Status Conference October 19, 2015

1 just put together one order for all the defendants and 2 submit it?

3 THE COURT: See if you-all can agree on

4 something. Do you want to sit down and do that while 5 you-all are all here today? Or do you want to -- is

6 everyone going to go back to their office and start

7 sending e-mails? 8 MR. HOUSTON: What do you want to do?

9 MR. KASSAB: I would prefer to have Lance

10 available. Lance is not available because he is out of 11 town. So have him look at it. We are in disagreement

12 with the issues that they think are controlling. That

13 is the problem, Your Honor. 14 THE COURT: I agree with you. I am not

15 even sure what the issues are. They contend that that

16 answers the question and there are so many involved I 17 think. That is the whole point. Let's see what the

18 Court of Appeals thinks if they're correct or not. I

19 don't see there is a lot of downside to that and it can 20 be dealt with within reasonable time constraints. I

21 think that is a sensible solution. I will give you the

22 chance to do it. 23 MR. HOUSTON: One thing. There has been a

24 lot of discovery proposed, admissions. Can we stay

25 discovery while we are doing that, the admissions and

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 13 Status Conference October 19, 2015

1 all? 2 THE COURT: No. Why do we need to do

3 that?

4 MR. HOUSTON: Well, there is 172 5 admissions.

6 THE COURT: Requests for Admissions?

7 MR. HOUSTON: Yes. 8 MR. KASSAB: Your Honor, in all fairness,

9 they're true and false for the questions.

10 THE COURT: Go ahead and answer it. If 11 the Court of Appeals wants to stay it, let them do it.

12 I try not to stay discovery unless I am required to. I

13 am going to let you-all go give it a shot. You can 14 answer the admissions.

16 17 (HEARING CONCLUDED)

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 14 Status Conference October 19, 2015

1 STATE OF TEXAS: 2 COUNTY OF HARRIS:

4 I, Terri W. Anderson, Official Court Reporter in 5 and for the 11th District Court of Harris, State of

6 Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all 8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record in the above-styled 11 and numbered cause, all of which occurred in open court

12 or in chambers and were reported by me.

13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits,

15 if any, offered by the respective parties.

16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $ and

18 was paid/will be paid by .

19 20 Terri W. Anderson, CSR 21 Texas CSR 877 Official Court Reporter 22 11th District Court Harris County, Texas 23 201 Caroline, #945 Houston, Texas 77002 24 Telephone: 713-368-6030 Expiration: 12/31/16 25

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 Word Index - Status Conference - p. 1

agreed [1] 11/7 can [14] 3/22 4/2 5/4 5/14 6/23 6/24 1 ahead [2] 5/16 13/10 6/24 8/12 10/15 11/25 12/3 12/19 11th [3] 1/6 14/5 14/22 AL [2] 1/4 1/6 12/24 13/13 12/31/16 [1] 14/24 Alabama [1] 2/3 candid [2] 3/12 9/1 1420 [1] 2/3 ALEXANDER [1] 2/13 Caroline [1] 14/23 15 [2] 4/23 6/1 all [21] case [25] 16 [1] 14/24 Allen [1] 2/7 cases [8] 3/17 3/25 5/16 6/10 7/11 172 [1] 13/4 allow [1] 9/8 9/14 10/20 11/7 18 [1] 4/13 allows [1] 6/1 cause [4] 1/2 1/20 7/22 14/11 19th [1] 1/18 already [1] 4/23 central [1] 10/15 also [2] 5/2 10/12 certainly [1] 3/19 2 always [1] 3/23 certify [3] 14/6 14/13 14/16 20 [2] 9/12 9/14 am [11] 3/25 4/8 4/9 4/11 4/14 8/22 9/1 chambers [1] 14/12 201 [1] 14/23 11/12 12/14 13/12 13/13 chance [2] 11/18 12/22 2015 [1] 1/18 ambivalence [1] 3/16 circumstance [1] 3/24 2015-28543 [1] 1/2 amount [1] 8/11 circumstances [1] 11/3 2777 [1] 2/7 analogous [2] 7/10 7/11 cite [1] 7/10 28543 [1] 1/2 analogy [1] 9/2 cited [3] 3/25 6/11 11/7 Anderson [2] 14/4 14/20 City [1] 3/8 3 another [1] 8/9 claim [1] 7/10 3600 [1] 2/11 answer [2] 13/10 13/14 claims [3] 7/24 8/6 8/14 6 answers [1] 12/16 CLAWATER [1] 2/7 any [3] 4/8 7/8 14/15 COLEMAN [1] 2/11 6030 [1] 14/24 anything [1] 8/20 come [4] 8/19 9/5 9/20 10/2 6600 [1] 2/8 anyway [3] 3/12 4/14 6/2 comfortable [2] 10/9 10/10 7 appeal [4] 3/7 3/21 5/11 11/1 complex [1] 10/14 Appeals [9] 6/1 6/7 7/1 10/25 11/14 computerized [1] 1/22 713-368-6030 [1] 14/24 11/14 11/18 12/18 13/11 CONCLUDED [1] 13/17 713-522-7400 [1] 2/4 APPEARANCES [1] 2/1 conditional [4] 5/5 7/7 7/14 8/17 713-632-8002 [1] 2/12 appellate [2] 9/15 9/23 conference [2] 1/11 4/20 713-650-6600 [1] 2/8 appreciate [2] 4/18 4/20 confident [1] 3/13 7400 [1] 2/4 appropriate [1] 9/2 confusing [1] 3/7 77002 [1] 14/23 are [28] constraints [1] 12/20 77004 [1] 2/4 argue [2] 8/23 9/21 contains [1] 14/7 77010 [1] 2/12 argued [1] 8/13 contend [1] 12/15 77019 [1] 2/8 argument [3] 7/5 8/4 11/6 context [1] 3/10 7th [1] 2/7 arguments [1] 7/20 continuance [1] 8/23 8 ARNOLD [2] 1/6 2/9 controlling [4] 7/5 10/15 11/15 12/12 around [1] 9/11 conveniens [3] 5/6 7/7 8/4 8002 [1] 2/12 as [4] 4/14 4/15 10/4 10/20 convince [1] 6/6 877 [1] 14/21 asking [1] 5/8 correct [3] 5/10 12/18 14/7 9 Assuming [1] 6/5 correctly [1] 14/14 available [2] 12/10 12/10 cost [1] 14/16 909 [1] 2/11 could [1] 9/23 945 [1] 14/23 B couldn't [1] 7/23 A back [7] 8/19 9/3 9/5 9/20 10/2 10/6 counsel [4] 2/5 2/9 2/13 14/9 12/6 COUNTY [4] 1/5 1/21 14/2 14/22 abatement [2] 5/9 5/14 be [15] court [19] ability [1] 8/13 because [5] 3/8 5/8 10/13 11/3 12/10 Court's [1] 11/22 able [1] 8/5 BECK [1] 2/13 CSR [2] 14/20 14/21 about [12] 4/14 4/19 4/25 5/3 5/14 6/5 become [1] 9/24 currently [1] 11/24 7/2 7/15 7/25 8/23 10/22 11/25 been [8] 5/4 6/25 7/8 7/13 7/16 8/5 above [3] 1/19 14/6 14/10 10/5 12/23 D above-styled [1] 14/10 before [4] 1/20 3/22 5/25 9/15 Dahl [1] 8/9 above-titled [1] 1/19 behalf [1] 8/2 David [2] 2/2 8/2 absolutely [2] 3/13 8/1 being [1] 8/9 day [3] 1/18 4/24 8/7 action [1] 7/22 believe [2] 9/10 9/11 days [1] 6/1 added [1] 9/9 believed [1] 3/23 deal [1] 4/16 additional [1] 9/10 benefit [1] 8/15 dealt [3] 7/13 7/13 12/20 address [1] 11/16 black [2] 9/5 10/2 decide [2] 5/14 7/3 addressed [2] 5/19 7/8 both [3] 6/21 6/24 7/1 decided [1] 7/16 addressing [1] 5/7 BRAR [1] 2/13 decision [1] 7/2 admissions [5] 12/24 12/25 13/5 13/6 bring [1] 9/15 DEFENDANT [1] 2/9 13/14 brought [1] 4/24 defendants [2] 2/13 12/1 admit [1] 3/4 burden [1] 9/16 delayed [1] 8/24 again [4] 5/25 7/25 8/25 10/8 denial [1] 4/22 agree [8] 6/14 6/21 6/24 7/1 7/2 11/14 C denials [1] 3/6 12/3 12/14 came [1] 1/19

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FIRM [1] 2/3 isn't [2] 11/5 11/6 D first [3] 3/4 6/20 11/10 issue [12] 4/15 5/3 5/9 5/20 7/6 7/8 7/9 deny [4] 4/2 4/3 4/10 10/23 Floor [1] 2/7 7/15 7/18 8/2 10/15 11/15 deprive [1] 8/15 following [1] 1/18 issues [6] 5/25 6/2 7/18 10/14 12/12 determinative [1] 10/16 foregoing [1] 14/6 12/15 determined [1] 10/16 forum [3] 5/5 7/7 8/3 it [60] did [3] 4/6 4/10 6/22 found [1] 11/5 ITKIN [2] 1/6 2/9 didn't [1] 6/21 frankly [3] 3/20 6/10 11/20 itself [1] 7/8 different [2] 4/21 7/20 further [2] 14/13 14/16 difficulty [2] 7/18 8/25 J disagreement [1] 12/11 G JAS [1] 2/13 discovery [5] 4/25 8/11 12/24 12/25 get [3] 4/13 10/9 10/18 Judge [1] 1/20 13/12 gets [1] 8/24 judgment [7] 4/2 4/3 4/4 4/9 4/22 5/13 dismiss [1] 11/2 give [5] 11/13 11/16 11/17 12/21 13/13 9/22 dismissal [3] 7/7 7/14 8/18 giving [1] 11/23 judicial [2] 1/6 7/3 dismissing [1] 9/6 go [9] 3/3 3/22 5/16 8/18 9/13 10/6 jump [1] 11/16 dispositive [2] 9/7 9/19 12/6 13/10 13/13 jurisdiction [8] 3/6 4/17 5/10 7/12 9/18 distinction [1] 4/8 going [16] 10/23 11/3 11/4 DISTRICT [4] 1/4 1/6 14/5 14/22 got [2] 10/6 11/15 jurisdictions [1] 7/11 do [22] grant [2] 5/5 9/18 just [5] 7/18 9/16 10/3 10/22 12/1 does [1] 6/11 granted [1] 4/11 doesn't [2] 6/11 11/19 grasp [1] 7/19 K doing [4] 9/17 10/9 10/10 12/25 guess [2] 3/7 3/9 Kassab [3] 2/2 2/3 8/2 DOMINGUEZ [1] 1/4 kind [2] 10/11 10/12 don't [13] 4/6 4/14 5/19 6/18 7/2 8/19 H know [7] 4/6 4/14 5/8 5/19 6/3 10/7 8/23 9/1 10/9 10/10 10/24 11/4 12/19 had [7] 3/21 4/16 5/5 6/7 6/21 7/19 10/24 done [1] 5/21 10/13 doorway [1] 11/10 handled [1] 8/3 L doubt [1] 10/12 happen [3] 6/11 6/21 6/24 lack [3] 3/16 10/23 11/3 doubts [1] 11/19 happening [1] 5/4 Lance [2] 12/9 12/10 down [3] 8/19 10/2 12/4 happens [1] 10/8 last [1] 3/19 downside [1] 12/19 HARRIS [5] 1/5 1/21 14/2 14/5 14/22 law [10] 2/3 5/6 5/7 6/19 7/6 7/24 8/6 has [5] 5/4 7/8 7/13 7/13 12/23 8/9 8/14 10/6 E hasn't [1] 7/16 lawyer [2] 8/9 8/22 e-mails [1] 12/7 have [37] lawyers [3] 5/4 8/3 8/15 early [1] 5/13 haven't [3] 5/21 8/20 9/10 layers [1] 7/20 end [1] 8/7 he [1] 12/10 left [1] 8/6 ended [1] 10/11 hear [2] 6/15 11/8 legal [1] 10/15 enough [1] 8/23 HEARING [1] 13/17 let [2] 13/11 13/13 entire [1] 9/4 held [2] 1/19 1/21 let's [2] 8/22 12/17 entitled [1] 8/10 help [1] 4/5 level [1] 3/16 essence [1] 11/6 here [6] 3/3 7/5 9/18 10/1 10/16 12/5 lick [1] 6/7 essentially [1] 8/12 hereby [1] 14/6 like [3] 3/19 7/19 8/21 ET [2] 1/4 1/6 him [1] 12/11 limited [2] 8/10 8/12 even [5] 7/21 7/24 8/6 8/14 12/15 hole [2] 9/5 10/2 litigate [3] 9/4 9/14 10/7 ever [1] 9/24 honestly [1] 9/25 little [1] 4/21 every [5] 3/8 4/1 4/2 4/9 6/23 Honor [4] 8/1 9/9 12/13 13/8 LLP [4] 1/6 2/7 2/9 2/11 everyone [2] 4/5 12/6 Honorable [1] 1/20 long [1] 5/1 evidence [1] 14/8 Houston [8] 1/21 2/4 2/6 2/7 2/8 2/12 look [2] 6/2 12/11 exactly [1] 8/21 3/8 14/23 looked [1] 5/18 exhibits [1] 14/14 how [5] 3/17 5/19 8/12 9/8 10/14 looking [1] 5/18 expert [1] 8/8 however [1] 4/24 LOPEZ [1] 1/4 Expiration [1] 14/24 lost [1] 8/20 I lot [5] 4/12 6/2 6/18 12/19 12/24 F idea [1] 9/19 fact [1] 7/23 important [1] 5/24 M fairly [1] 3/4 impression [2] 3/20 10/3 machine [1] 1/23 fairness [1] 13/8 inappropriate [1] 10/25 mails [1] 12/7 false [1] 13/9 inaudible [1] 7/4 make [1] 7/2 familiarity [1] 3/17 included [1] 14/9 making [1] 3/14 Fannin [1] 2/11 instances [1] 6/25 malpractice [3] 3/17 3/23 8/16 feel [2] 10/9 10/10 instruction [1] 11/23 many [4] 4/24 7/18 9/8 12/16 felt [1] 7/19 intense [1] 4/25 may [3] 3/16 10/4 10/5 FIELDS [1] 2/13 interlocutory [1] 3/7 Maybe [2] 6/12 10/8 file [2] 3/22 9/14 involved [1] 12/16 me [6] 3/18 5/11 6/5 7/25 11/19 14/12 filed [1] 9/11 involves [1] 4/23 means [1] 4/4 final [1] 9/22 is [84] Mexican [4] 7/24 8/6 8/9 8/14

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 Word Index - Status Conference - p. 3

perhaps [1] 11/15 ruling [3] 3/14 4/16 10/4 M period [1] 6/19 run [2] 3/18 5/13 Mexico [5] 5/17 8/10 8/19 9/3 9/22 permissive [2] 5/11 11/1 RUSSELL [1] 2/13 Mike [1] 1/20 place [1] 11/24 mill [1] 5/13 plaintiff [1] 5/3 S Miller [1] 1/20 plaintiff's [1] 8/22 said [4] 3/19 6/7 7/1 8/18 mind [1] 10/13 plaintiffs [4] 2/5 4/23 8/2 9/8 same [4] 3/10 4/2 8/10 8/22 misimpression [1] 3/5 Plea [3] 4/16 5/10 9/18 Samuel [1] 2/6 money [1] 4/5 Pleas [1] 3/6 save [1] 4/12 months [2] 4/13 8/24 point [3] 8/20 9/3 12/17 say [9] 3/13 4/2 6/6 6/14 6/24 8/22 more [5] 4/24 4/25 5/1 10/5 10/21 pointed [1] 10/20 10/14 10/25 11/25 morning [1] 4/19 portions [1] 14/8 saying [3] 4/20 7/21 7/22 most [1] 11/20 POST [1] 2/13 says [2] 8/9 11/18 motion [1] 8/4 pragmatic [1] 10/5 SCOTT [1] 2/7 Mr [3] 2/2 2/6 2/10 precisely [1] 9/25 see [8] 4/8 6/1 9/20 10/8 11/18 12/3 much [2] 4/25 4/25 prefer [1] 12/9 12/17 12/19 multiplicity [1] 10/13 preparation [1] 14/17 seem [1] 11/19 my [8] 3/16 7/18 8/23 8/25 9/17 10/3 prerogative [2] 3/9 10/19 seems [3] 3/18 5/11 10/20 10/4 11/19 presenting [1] 4/15 send [2] 9/3 10/1 Presiding [1] 1/21 sending [1] 12/7 N prevent [1] 11/10 sense [3] 6/7 9/16 9/17 narrow [1] 10/15 probably [2] 3/18 10/17 sensible [1] 12/21 need [3] 5/16 5/17 13/2 problem [3] 7/17 8/18 12/13 set [1] 4/19 never [7] 9/5 9/17 9/20 9/20 9/24 10/2 proceedings [4] 1/19 1/22 14/8 14/14 seven [1] 5/21 10/7 process [3] 5/20 5/23 11/11 SHEPHERD [1] 2/7 nine [1] 3/22 proper [1] 11/6 shot [1] 13/13 nine yards [1] 3/22 properly [1] 8/4 should [1] 4/11 no [6] 1/2 3/9 5/6 5/7 7/2 13/2 proposed [1] 12/24 sides [3] 6/21 6/24 7/1 non [3] 5/5 7/7 8/3 prove [1] 8/13 simply [1] 5/25 normal [1] 4/22 pursue [6] 5/15 5/16 7/23 8/5 8/12 8/14 Simpson [1] 2/10 not [22] pursued [1] 9/23 since [1] 5/2 nothing [1] 7/12 put [1] 12/1 single [2] 3/8 4/3 novel [3] 5/3 7/9 7/15 sit [1] 12/4 now [2] 4/13 6/23 Q situation [1] 5/12 numbered [2] 1/20 14/11 question [1] 12/16 six [1] 8/24 questions [1] 13/9 so [6] 5/14 7/17 8/13 11/15 12/11 O quite [1] 9/11 12/16 obvious [2] 3/4 3/10 solution [1] 12/21 occurred [1] 14/11 R some [6] 3/16 3/18 7/10 8/15 9/10 October [1] 1/18 raised [1] 6/3 10/15 offered [1] 14/15 read [1] 3/12 something [1] 12/4 office [1] 12/6 Reagan [1] 2/10 Sometimes [1] 6/22 Official [2] 14/4 14/21 really [6] 4/1 4/19 5/8 5/18 5/20 9/7 Sorry [1] 10/6 often [5] 5/19 6/11 6/22 10/4 10/21 reasonable [2] 7/19 12/20 sort [2] 8/21 10/12 okay [1] 3/13 reasons [1] 10/11 specific [1] 3/9 one [5] 3/4 3/8 7/18 12/1 12/23 RECORD [4] 1/1 14/10 14/13 14/17 specifically [1] 5/7 ones [1] 9/10 REDDEN [1] 2/13 Spend [1] 4/5 open [1] 14/11 reflects [1] 14/14 St [1] 2/11 opinion [3] 4/13 6/14 6/17 refused [1] 11/8 start [1] 12/6 opinions [1] 6/13 regard [1] 3/14 STATE [2] 14/1 14/5 opportunity [4] 5/15 11/13 11/17 11/24 remedies [1] 9/23 States [1] 8/11 order [3] 5/24 11/24 12/1 remedy [1] 9/7 status [2] 1/11 4/19 other [6] 4/9 4/24 5/6 7/11 9/23 14/8 reported [2] 1/22 14/12 statute [4] 5/11 5/19 6/20 11/4 otherwise [1] 7/25 Reporter [2] 14/4 14/21 statutory [1] 3/9 our [1] 7/5 REPORTER'S [4] 1/1 14/10 14/13 stay [3] 12/24 13/11 13/12 out [4] 7/22 10/5 10/20 12/10 14/17 stenotype [1] 1/22 outcome [2] 10/9 10/16 requested [1] 14/8 step [2] 5/20 5/23 outset [1] 8/4 Requests [1] 13/6 still [4] 3/16 5/15 6/6 10/10 required [1] 13/12 Street [1] 2/3 P requirement [1] 3/19 struggled [1] 5/9 paid [2] 14/18 14/18 resources [1] 7/3 styled [1] 14/10 paid/will [1] 14/18 respective [1] 14/15 subject [1] 3/6 Parkway [1] 2/7 response [1] 10/18 submit [1] 12/2 particularly [1] 5/2 right [8] 3/14 4/6 4/10 5/16 6/8 6/9 submitted [2] 5/24 8/8 parties [3] 4/23 14/9 14/15 9/15 10/21 succeed [1] 8/19 passed [1] 6/21 ripe [3] 7/6 7/25 9/24 sue [1] 5/4 perfect [1] 5/12 ripeness [1] 3/15 sufficient [1] 3/15

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002 Word Index - Status Conference - p. 4

S V Summary [6] 4/1 4/3 4/3 4/9 4/22 5/13 variety [1] 10/11 sure [7] 4/1 4/6 4/8 4/10 4/14 6/16 very [4] 5/13 6/11 6/22 9/25 12/15 volume [2] 1/1 14/10 system [2] 9/4 9/15 VOLUMES [1] 1/1 T W take [2] 3/21 9/14 want [5] 3/12 11/16 12/4 12/5 12/8 takes [1] 3/8 wants [1] 13/11 talking [4] 4/25 5/2 7/15 10/22 was [11] 3/4 3/5 3/7 3/10 3/13 3/13 Telephone [4] 2/4 2/8 2/12 14/24 3/19 4/15 6/20 11/25 14/18 tell [4] 6/5 7/25 9/3 11/12 wavering [1] 3/5 term [1] 5/1 way [2] 4/7 9/14 terms [1] 7/13 we [35] Terri [2] 14/4 14/20 well [3] 4/18 8/23 13/4 testimony [1] 8/8 were [5] 3/6 5/25 6/6 9/22 14/12 TEXAS [12] 1/5 1/21 2/4 2/8 2/12 5/7 what [17] 7/8 14/1 14/6 14/21 14/22 14/23 when [8] 4/10 4/13 4/16 4/22 5/4 6/7 than [2] 4/21 10/21 6/14 6/20 that [87] where [3] 7/1 10/11 11/7 their [7] 5/4 7/3 7/23 8/13 8/13 8/16 whether [8] 3/14 4/10 5/3 5/9 6/3 7/6 12/6 9/21 9/22 them [9] 3/7 8/15 9/3 9/3 9/8 10/8 which [3] 4/20 7/14 14/11 10/18 11/23 13/11 while [2] 12/4 12/25 then [5] 3/25 6/23 9/21 11/2 11/15 whole [3] 3/22 9/19 12/17 there [22] Why [1] 13/2 these [1] 10/7 will [19] they [35] wishful [1] 10/17 they're [5] 8/10 8/12 11/20 12/18 13/9 within [2] 6/1 12/20 thing [4] 4/2 4/10 10/13 12/23 words [1] 5/6 things [1] 4/6 would [8] 4/5 4/12 5/12 6/3 7/6 8/3 8/5 think [17] 12/9 thinking [1] 10/17 wouldn't [1] 4/12 thinks [1] 12/18 write [2] 6/14 6/16 this [25] writing [1] 14/9 those [4] 6/2 8/5 8/14 11/3 wrong [2] 4/11 11/15 thought [3] 3/11 3/20 3/21 through [4] 8/15 9/4 9/14 11/11 Y time [4] 3/19 4/13 11/20 12/20 yards [1] 3/22 titled [1] 1/19 yeah [1] 4/11 today [2] 4/15 12/5 years [1] 5/22 together [1] 12/1 yes [4] 6/6 6/8 6/14 13/7 total [1] 14/16 yet [1] 9/11 town [1] 12/11 YETTER [1] 2/11 transcription [1] 14/7 you [42] trial [2] 1/2 11/9 you-all [4] 7/21 12/3 12/5 13/13 true [2] 13/9 14/7 your [9] 4/22 5/12 8/1 9/9 10/20 11/6 truly [1] 14/14 11/13 12/13 13/8 try [4] 3/21 4/4 4/12 13/12 turn [1] 10/5 two [3] 4/23 5/20 5/23 two-step [2] 5/20 5/23 typically [1] 3/18 U U.S [3] 7/24 8/7 8/14 under [5] 3/5 3/20 5/10 11/3 11/4 understand [1] 11/22 United [1] 8/11 unless [1] 13/12 unnecessary [1] 11/11 unreasonable [1] 11/19 unsure [1] 4/15 up [3] 3/8 3/21 10/11 us [3] 6/1 8/20 11/10 using [1] 7/3

TERRI W. ANDERSON, CSR 201 CAROLINE, #945 HOUSTON, TEXAS 77002