FINSA PORTAFOLIOS, S.A. DE C.V., a Mexican corporation v. OPENGATE CAPITAL, LLC, a California limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FINSA PORTAFOLIOS, S.A. DE C.V., a
Mexican corporation; FINSA CKD M
FIDEICOMISO CIB 2017, a Mexican
trust,
Plaintiffs-Appellants,
v.
OPENGATE CAPITAL, LLC, a
California limited liability company;
OPEN PUBLISHING, LLC, a Delaware
limited liability company,
Defendants-Appellees,
and
ROUNDROCK 092012, LLC, a Delaware
limited liability company; ROUNDROCK
SCIENTIFIC INTERNATIONAL, LLC, a
Delaware limited liability company;
ROUNDROCK MEXICO, LLC, a
Delaware limited liability company;
HAMILTON SCIENTIFIC, LLC, a
Delaware limited liability company;
HAMILTON LABORATORY
SOLUTIONS, LLC, a Delaware limited
No. 17-56776
D.C. No.
2:17-cv-04360-RGK-E
MEMORANDUM*
FILED
APR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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liability company,
Defendants.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 8, 2019
Pasadena, California
Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,** District Judge.
Plaintiffs Finsa Portfolios and FINSA CKD M Fideicomiso (collectively,
“Finsa”) have sued defendant OpenGate Capital and six of its subsidiaries for fraud
and breach of contract arising from a real estate transaction in Mexico. We review
the district court’s order dismissing Finsa’s suit for forum non conveniens and its
denial of Finsa’s motion for reconsideration and motion for leave to amend its
complaint. We affirm.
1. Forum Non Conveniens
The doctrine of forum non conveniens applies where a party argues that a
suit filed in federal court would be more properly heard in a state or foreign forum.
See Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49, 60 (2013). We
** The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
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review the district court’s decision to dismiss for forum non conveniens for abuse
of discretion. Ayco Farms, Inc. v. Ochoa, 862 F.3d 945, 948 (9th Cir. 2017) (per
curiam).
Here, the district court dismissed for forum non conveniens because it found
that the parties had agreed to valid forum-selection clauses identifying the courts of
Reynosa, Tamaulipas, Mexico, as the proper forum for claims arising from the
purchase and lease agreements and to arbitration in Mexico City as the proper
forum for claims arising from the guaranty agreement. Where the parties have
agreed to a “valid forum-selection clause,” the clause is “given controlling weight”
in a forum non conveniens analysis “in all but the most exceptional cases” and the
plaintiff’s choice of forum is given “no weight.” Atl. Marine, 571 U.S. at 63
(quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring)). Further, the forum-selection clause eliminates the need for the court
to examine the parties’ private interests: The court is to conclude that the private
interests favor only the preselected forum and may consider only public-interest
factors. Id. at 64.
We review the district court’s decision to enforce the forum-selection
clauses for abuse of discretion. Kuke Hwaje Ins. Co. v. M/V Hyundai Liberty, 408
F.3d 1250, 1254 (9th Cir. 2005). A forum-selection clause is invalid if (1) “its
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incorporation into the contract was the result of fraud, undue influence, or
overweening bargaining power”; (2) “the selected forum is so ‘gravely difficult
and inconvenient’ that the complaining party will ‘for all practical purposes be
deprived of its day in court’”; or (3) “enforcement of the clause would contravene a
strong public policy of the forum in which the suit is brought.” Argueta v. Banco
Mexicano, S.A., 87 F.3d 320, 325 (9th Cir. 1996) (quoting M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 18 (1972)). Forum-selection clauses are prima facie
valid, and Finsa bore a “heavy burden” to prove these clauses were invalid.
Carnival Cruise Lines v. Shute, 499 U.S. 585, 589, 592 (1991) (citation omitted).
The district court did not abuse its discretion in enforcing the forum-
selection clauses or dismissing the complaint. Finsa has not attempted to subject
OpenGate or its subsidiaries to service of process in Mexico and thus cannot claim,
at this time, that enforcement of the clauses will deprive it “of its day in court.”
Argueta, 87 F.3d at 325 (citation omitted). We decline to construe OpenGate’s
refusal to stipulate to jurisdiction before a Mexican arbitrator over all fraud claims
as a refusal to comply with the terms of the forum-selection clauses. OpenGate,
through its subsidiaries, agreed to litigate claims arising from the purchase and
lease agreements in Mexican courts and to arbitrate only claims arising from the
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guaranty agreement. Finsa’s request was thus not congruent with OpenGate’s
contractual obligations.
If Finsa had filed claims arising out of the purchase or lease agreement in the
Reynosa courts but failed to serve OpenGate with process, or had requested that
OpenGate stipulate to jurisdiction before a Mexican arbitrator over only the claims
arising from the guaranty agreement, our analysis may have been different. But at
this stage, we affirm the district court.
The charges in this complaint, if true, are serious and go well beyond an
ordinary claim of breach of contract. If circumstances change, Finsa may file a
motion to reopen the judgment under Federal Rule of Civil Procedure 60. We
instruct the district court to fully consider such a motion should Finsa fail to obtain
an appropriate forum over OpenGate and its subsidiaries in Mexico.
2. Motion for Reconsideration
We review the district court’s denial of Finsa’s motion for reconsideration
for abuse of discretion. Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.
2013). Finsa premised this motion on evidence that, after the district court entered
judgment, OpenGate refused to stipulate to arbitration of all fraud claims before a
Mexican arbitrator. For the reasons discussed above, this evidence does not
change the forum non conveniens analysis, as OpenGate did not breach its
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contractual obligation in refusing Finsa’s request. We thus affirm the district
court’s denial of this motion.
3. Motion for Leave to Amend the Complaint
We review the district court’s denial of Finsa’s motion for leave to amend its
complaint for abuse of discretion. Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir.
2019). The district court has discretion to deny leave to amend if the amended
complaint would be “subject to dismissal.” Saul v. United States, 928 F.2d 829,
843 (9th Cir. 1991). Finsa has presented no compelling argument that its amended
complaint would not have been subject to the forum-selection clauses. Thus, the
amended complaint would have been subject to dismissal under the same forum
non conveniens analysis as the initial complaint.
AFFIRMED WITH INSTRUCTIONS.
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