Vasquez, et al v. Bridgestone, et al

United States Court of Appeals
Fifth Circuit
F I L E D
April 4, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-41161
_______________
MARIA O. VASQUEZ, ET AL.,
Plaintiffs-Appellants,
ALEJANDRA MARLEN R. DELUNA,
Intervenor Plaintiff-Appellant,
VERSUS
BRIDGESTONE/FIRESTONE, INC., ET AL.,
Defendants-Inervenor
Defendants- Appellees.
* * * * * * * * * * * * * * * * * * *

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_______________
m 02-40053
_______________
MARIA O. VASQUEZ, ET AL.,
Plaintiffs-Appellants,
ALEJANDRA MARLEN R. DELUNA,
Intervenor Plaintiff-Appellant,
DANA R. ALLISON, ET AL.,
Appellants,
VERSUS
BRIDGESTONE/FIRESTONE, INC., ET AL.
Defendants-Appellees,
_________________________
Appeals from the United States District Court
for the Eastern District of Texas
_________________________
Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Car crash victims’ survivors sued the tire
manufacturer and other defendants in state
court. After defendants removed to federal
court, the district court dismissed on grounds
of forum non conveniens (“f.n.c.”), finding
Mexico to be the more convenient forum. The
court also enjoined plaintiffs from pursuing

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3
any claim against defendants in Texas state
court or federal court. We vacate the f.n.c.
dismissal so that a return jurisdiction clause
may be added, and we order that the injunction
be modified to conform to the Anti-Injunction
Act, 28 U.S.C. § 2283. The dismissal and
injunction are otherwise free of error.
I.
This action arises from an automobile ac-
cident in the state of Nuevo Leon, Mexico,
that killed six passengers, all Mexican citizens.
Plaintiffs and intervenors, who are family
members of the decedents, allege that the
vehicle and one of its tires were defective, that
the vehicle was improperly maintained, and
that the driver was careless. Plaintiffs first
filed wrongful death and survival claims
against defendants Bridgestone/Firestone, Inc.
(“Bridgestone”), General Motors Corporation
(“General Motors”), Lucent Technologies,
Inc., and Lucent Technologies Maquiladoras,
Inc.,1 in federal district court in Brownsville,
Texas (“Vasquez I”). That suit was dismissed
for lack of diversity jurisdiction.
The instant case (“Vasquez II”) was filed in
Orange County, Texas, and removed to federal
district court in Beaumont, Texas. That court
dismissed on grounds of f.n.c., concluding that
the dispute should be heard in Mexico. The
location of the accident, the sources of proof,
plaintiffs’ home, and the lack of local interest
were factors that the court found favored
Mexico. The court also determined that
Mexican law would govern. The court dis-
missed with prejudice, noting in its
memorandum opinion that “[a] judgment of
dismissal under forum non conveniens here
should act to preclude a future lawsuit brought
elsewhere in this country.”
Before the court dismissed Vasquez II,
plaintiffs filed a separate state court suit in
Cameron County, Texas (“Vasquez III”).
They initially were represented by different
counsel before the dismissal of Vasquez II; at
that time, counsel of record filed an amended
petition and a petition in intervention on plain-
tiffs’ behalf. Vasquez III was removed to fed-
eral court and ultimately dismissed by stip-
ulation.2
Following the f.n.c. dismissal in Vasquez II,
plaintiffs also sued in Webb County, Texas.
This suit, Vasquez IV, named five defendants
not named in the three previous suits:
Bridgestone Corporation, Bridgestone/Fire-
stone de Mexico, S.A., Rudolph Miles and
Sons, Inc., Dicex International, Inc., and the
driver of the vehicle, Villanueva. Vasquez IV
also included two new plaintiffs, the parents of
one of the deceased crash victims, Ivonne
Juarez. After defendants removed Vasquez IV
to federal court, the Vasquez II court sua
sponte issued a temporary restraining order
barring plaintiffs and their attorneys from ar-
guing their pending motion to remand and
from prosecuting any new suits.
The Vasquez II court later issued a
permanent injunction that prohibited
plaintiffs, their attorneys, their agents,
and all persons acting on behalf of plain-
tiffs, or in concert with any and all of the
plaintiffs or their attorneys from
prosecuting, filing, or pursuing any suit
1 Lucent Technologies, Inc., and Lucent
Technologies Maquiladoras, Inc., have since settled
and are no longer parties to this appeal.
2 The Vasquez II court found that Vasquez III
was “an attempt by the Plaintiffs to relitigate this
case.”

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4
or case or cause of action against the
defendants herein in any district court of
the State of Texas, and any United
States District Court in the State of Tex-
as against the said movants.
The court reasoned that the All Writs Act, 28
U.S.C. § 1651(a), permitted it to protect the
finality of its f.n.c. dismissal. Plaintiffs argue
that the injunction violates the Anti-Injunction
Act, specifically that it does not fall under the
Act’s relitigation exception. This appeal con-
solidates plaintiffs’ challenge to the Vasquez II
court’s dismissal and the permanent injunction.
II.
Federal courts apply the federal version of
f.n.c. in resolving a motion to dismiss where
the alternative forum is a foreign tribunal. De
Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th
Cir. 1993). We review an f.n.c. dismissal for
abuse of discretion. Gonzalez v. Chrysler
Corp., 301 F.3d 377, 379 (5th Cir. 2002),
petition for cert. filed, 71 U.S.L.W. 3489 (Jan.
7, 2003) (No. 02-1044). To obtain an f.n.c.
dismissal, a party must demonstrate (1) the
existence of an available and adequate
alternative forum and (2) that the balance of
relevant private and public interest factors
favor dismissal. Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 221-22 (5th Cir.
2000). Under federal f.n.c. principles, the
court properly found that Mexico is the more
convenient forum.
A.
An alternative forum is considered available
if the entire case and all parties can come
within its jurisdiction.3 The district court
found that defendants’ stipulation to submit to
a Mexican court’s jurisdiction in the state of
Nuevo Leon made Mexico an available forum.
Plaintiffs now argue that because Mexican fed-
eral law provides greater damages than does
the law of Nuevo Leon, defendants should
have been required to submit to the jur-
isdiction of a Mexican federal court in Mexico
City. Forum availability and adequacy are sep-
arate inquiries, however, so we reject
plaintiffs’ attempt to bootstrap the two.
Indeed, plaintiffs do not dispute that an
available Mexican forum exists in the courts of
Nuevo Leon.
An alternative forum is adequate if “the
parties will not be deprived of all remedies or
treated unfairly, even though they may not en-
joy the same benefits as they might receive in
an American court.” Gonzalez, 301 F.3d at
379-80 (citation and internal quotation marks
omitted). In Gonzalez, we rejected the
plaintiffs’ contention that a foreign
jurisdiction’s decision to limit damages and
limit the availability of strict liabilitySSeven to
the point at which the lawsuit ceases to
become economically viableSSsomehow
renders that jurisdiction inadequate. Id. at
381. Importantly, Gonzalez also involved
Mexican plaintiffs suing an American vehicle
manufacturer over a car accident in Mexico.
Id. at 383. The fact that Mexico provides a
wrongful death cause of action, albeit with
severe damage caps,4 makes the country an
3 In re Air Crash Disaster Near New Orleans,
La. on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir.
(continued...)
3(...continued)
1987) (en banc), vacated on other grounds sub
nom. Pan Am. World Airways, Inc. v. Lopez, 490
U.S. 1032 (1989).
4 Defendants’ expert stated that Nuevo Leon
law limits wrongful death liability to approximately
(continued...)

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adequate forum. Piper Aircraft Co. v. Reyno,
454 U.S. 235, 255 (1981).
B.
Once a court determines that there is an ad-
equate alternative forum, it must balance the
relevant private and public interest factors. Id.
at 254-55. Private interest factors include
the relative ease of access to sources of
proof; the availability of compulsory
process for attendance of unwilling, and
the cost of obtaining attendance of
willing, witnesses; the possibility of view
of premises, if view would be
appropriate to the action; and all other
practical problems that make trial of a
case easy, expeditious and inexpensive.
McLennan v. Am. Eurocopter Corp., Inc., 245
F.3d 403, 424 (5th Cir. 2001) (internal
quotation marks and citation omitted). In
Piper, the Court stated that “there is ordinarily
a strong presumption in favor of the plaintiff’s
choice of forum, which may be overcome only
when the private and public factors clearly
point towards trial in the alternative forum.”
454 U.S. at 255. Sti ll, the district court
determined, consistently with Piper, that
because plaintiffs are residents of a foreign
country, their forum choice should be
accorded less deference. Id. at 255-56.
Plaintiffs contend the court erred, because
a treaty between the United States and
Mexico, the International Covenant of Civil
and Political Rights, entitles Mexican plaintiffs
to the same deference as American citizens,
only with the understanding that suing in the
United States may be less convenient.5 Article
14(1) of the treaty states, inter alia: “All per-
sons shall be equal before the courts and tribu-
nals. In the determination of . . . rights and
obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a
competent, independent, and i mpartial
tribunal.”6 We need not decide this issue,
however, because the private and public
factors “clearly point towards” trial in
Mexico.7 Piper, 454 U.S. at 255.
Analyzing the private factors, the court cor-
rectly determined that trial should be held in
Mexico. The court emphasized that plaintiffs,
the driver of the vehicle, and all decedents are
Mexican citizens. In addition, the vehicle and
tires were manufactured, purchased, and main-
4(...continued)
$5,700 plus an unspecified amount of “moral
damages” designed to compensate for humiliation,
injury to reputation, and mental anguish.
5 Plaintiffs cite In re Bridgestone/Firestone,
Inc. Tires Products Liability Litig., 190 F. Supp.
2d 1125, 1136 (S.D. Ind. 2002), which held that
the Treaty of Peace, Friendship, Navigation and
Commerce between the United States and Vene-
zuela gives “expatriate U.S. nationals and treaty
nationals residing in their home countries . . . the
same preference of their choice of forum, with the
consideration that suing in a United States forum
while residing in a foreign country is less likely to
be convenient.” Plaintiffs, however, invoke the
International Covenant on Civil and Political
Rights, a separate treaty, so it is hard to see how In
re Bridgestone/Firestone is relevant.
6 International Covenant on Civil and Political
Rights, Dec. 16, 1966, art. 14(1), 999 U.N.T.S.
171.
7 See James v. Gulf Int’l Marine Corp., 777
F.2d 193, 194 n.2 (5th Cir. 1985) (stating that
even where courts have interpreted forum-access
treaty provisions broadly, they have “still
dismissed suits where the balance weighs in favor
of another forum”).

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6
tained in Mexico. The vehicle had a Mexican
owner, and the trip took place entirely in
Mexico. All the physical evidence and medical
reports are in Mexico; conducting trial in the
United States would require the translation of
numerous reports and witness testimony.
Federal courts have no power of compulsory
process over Mexican citizens, including the
surviving driver and passenger, police, and
mechanics who serviced and maintained the
vehicle.
Plaintiffs point out that documents relating
to the design and manufacture of the vehicle’s
tires are located in the United States and must
be translated into Spanish. They also aver that
the court’s refusal to permit additional
discovery prevented them from demonstrating
the exact role of General Motors and
Bridgestone in designing and fabricating their
products.8 Yet, even without the aid of
additional discovery, plaintiffs argued in the
district court that the design information is
located in the United States, so we do not see
how they have been prejudiced.9
Assuming arguendo that all information re-
lating to the design and manufacture of the
tires and vehicle is located in the United
States, we still find the court’s analysis
correct. The tires and vehicle were
manufactured and sold in Mexico; the vehicle’s
servicing records and the dri ver’s
recordsSSboth vital to plaintiffs’ alternative
theories of liabilitySSare also located there.
C.
Plaintiffs maintain that the court erred in
applying the relevant public f.n.c. factors,
which are
administrative difficulties flowing from
court congestion; the local interest in
having localized controversies decided
at home; the interest in having the trial
of a diversity case in a forum that is at
home with the law that must govern the
action; the avoidance of unnecessary
problems in conflict of laws, or in the
application of foreign law; and the
unfairness of burdening citizens in an
unrelated forum with jury duty.
McLennan, 245 F.3d at 424 (internal
quotation marks and citation omitted). The
court determined these factors favor trial in
Mexico, because the case would overburden
its already overcrowded docket, Texas has
little local interest in the outcome, and
Mexican law should govern the controversy.
Plaintiffs assert the location of Bridge-
stone’s main plant in Orange County, Texas,
8 Again, plaintiffs’ reliance on In re Bridge-
stone/Firestone Tires Products Liability Litig.,
190 F. Supp. 2d 1125, is problematic. Although,
in that case, the multi-district litigation court de-
nied the defendant’s motion to dismiss on grounds
of f.n.c., some of the vehicles and tires, unlike the
situation in this case, were manufactured in the
United States. Id. at 1139-40. More importantly,
the suit involved traffic accidents in Colombia, not
Mexico; that country’s procedure rules would have
required American deponents to travel there to
ratify their testimony. Id. at 1138. Finally, the
court believed that political unrest could make trial
in Colombia difficult. Id. at 1143-44.
9 See HC Gun & Knife Shows, Inc. v. City of
Houston, 201 F.3d 544, 549 (5th Cir. 2000) (stat-
(continued...)
9(...continued)
ing that a discovery ruling should be reversed only
if the complaining party demonstrates that it was
prejudiced by the ruling).

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refutes the court’s conclusion that there is little
local interest. In fact, the plant that plaintiffs
reference is not the company’s principal place
of business, nor does it even produce tires.
Conversely, Mexico has an interest in pro-
tecting its own citizens from defective prod-
ucts acquired in Mexico and causing injury
there.10
The linchpin of plaintiff’s argumentSSthat
the alleged wrongful act was the original de-
sign of the vehicle and tiresSSreaches back too
far in the accident’s causal chain. Identifying
the situs of the wrongful conduct as an
American designer’s drawing board ignores
the production, sale, and alleged failure of the
product, which all occurred in Mexico. If
accepted, plaintiffs’ argument would curtail
the rights of foreign governments to regulate
their internal economies and threaten to engulf
American courts with foreign claims, Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
In addition, plaintiffs’ attempt to place the
alleged wrongful conduct in the United States
ignores their own alternative liability theories
that improper maintenance and careless driving
caused the accident.
Plaintiffs are permitted to plead in the al-
ternative. FED. R. CIV. P. 8(e)(2). For pur-
poses of f.n.c., however, they cannot present
only one of their multiple liability theories for
the sole purpose of gaining a favorable forum.
For similar reasons, plaintiffs’ contention
that the court erred in its choice-of-law
determination is unavailing.11 A federal court
sitting in diversity applies the conflict-of-laws
rules of the state in which it sits. Klaxon Co.
v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941). Texas applies the “most significant re-
lationship” test, Gutierrez v. Collins, 583
S.W.2d 312, 318-19 (Tex. 1979), which con-
siders various contacts: the place where the in-
jury occurred, the place where the injury caus-
ing conduct occurred, the parties’ residence,
and the place where the relationship, if any,
between the parties is centered.12
Even if the design of the tires and vehicles
is characterized as the conduct causing injury,
the aggregate of other specific contacts favors
application of Mexican law. As the court rec-
ognized, all the decedents and plaintiffs are cit-
izens of Mexico, the accident and subsequent
investigation took place in Mexico, and the
vehicle and tires were manufactured and
purchased there.
The most significant relationship test fur-
ther requires that the specific contacts be eval-
uated in light of policy considerations. Dun-
can v. Cessna Aircraft Co., 665 S.W.2d 414,
10 See Delgado v. Shell Oil Co., 231 F.3d 165,
181 (5th Cir. 2000) (“[T]hose foreign countries
[where the plaintiffs hailed from and had suffered
injury] obviously have an interest in protecting the
rights and welfare of their citizens.”); Kamel v.
Hill-Rom Co., 108 F.3d 799, 804-05 (7th Cir.
1997) (noting that Indiana residents “have a mere
passing interest” where a foreign plaintiff is injured
in a foreign land); Torreblanca de Aguilar v.
Boeing Co., 806 F. Supp. 139, 144 (E.D. Tex.
1992) (stating that Mexico has a “paramount in-
terest” in resolving claims brought by Mexican
plaintiffs arising from an air crash in Mexico that
was investigated by Mexican authorities).
11 We review a court’s choice-of-law
determination de novo. Spence v. Glock, Inc., 227
F.3d 308, 311 (5th Cir. 2000).
12 RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 145 (1971).

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8
421 (Tex. 1984). These considerations are
(a) the needs of the interstate and
international systems; (b) the relevant
policies of the forum; (c) the relevant
policies of other interested states and the
relative interests of those states in the
determination of the particular issue;
(d) the protection of justified
expectations; (e) the basic policies
underlying the particular field of law; (f)
certainty, predictability and uniformity
of result; and (g) ease in the
determination and application of the law
to be applied.
RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 6 (1971). A proper choice-of-law
“achieve[s] the best possible accommodation”
of both nations’ policies. Id. cmt. f.
We are mindful of the disparate levels of
wrongful death damages provided under Texas
and Mexican law and the incentive for plain-
tiffs to sue in the United States. Given that all
decedents and plaintiffs are Mexican, however,
there is little justification for applying Texas
law, which seeks to “protect[] the rights of its
citizens to adequate compensation.”13 Were
we to apply Texas law as a means of righting
any perceived inequities of Mexican law, we
would be undercutting Mexico’s right to
create a hospitable climate for investment.14
Uniformity, predictability, and accommodation
of the competing policies of the two nations
favor applying Mexican law.
D.
There is no guarantee that Nuevo Leon will
remain an available forum or that defendants
will submit to its jurisdiction. 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. The “failure to include a
return jurisdiction clause in an f.n.c. dismissal
constitutes a per se abuse of discretion.” Rob-
inson v. TCI/US West Communications, Inc.,
117 F.3d 900, 907-08 (5th Cir. 1997). As we
said in In re Air Crash Disaster, 821 F.2d at
1166:
If the district court decides that the
[public and private interest factors] fa-
vor in a foreign forum, it must finally en-
sure that a plaintiff can reinstate his suit
in the alternative forum without undue
inconvenience or prejudice and that if
the defendant obstructs such
reinstatement in the alternative forum
that the plaintiff may return to the
American forum.
The court did not include a return jurisdiction
clause in its dismissal order, so we vacate and
remand with instructions that one be added.
13 See Trailways, Inc. v. Clark, 794 S.W.2d
479, 486 (Tex. App.SSCorpus Christi 1990, writ
denied) (emphasis added); see also Baird v. Bell
Helicopter Textron, 491 F. Supp. 1129, 1150-51
(N.D. Tex. 1980).
14 See Gonzalez, 301 F.3d at 381-82 (“In
making this policy choice, the Mexican government
(continued...)
14(...continued)
has resolved a trade-off among the competing
objectives and costs of tort law, involving interests
of victims, of consumers, of manufacturers, and of
various other economic and cultural values. In
resolving this trade-off, the Mexican people,
through their duly-elected lawmakers, have decided
to limit tort damages. . . .”).

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III.
The district court halted plaintiffs’ “judicial
hopscotch” by invoking the All Writs Act,
which authorizes federal courts “to issue all
writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the
usages and principles of law.” 28 U.S.C.
§ 1651. This power dovetails with the relitiga-
tion exception to the Anti-Injunction Act,
which, although generally prohibiting federal
courts from enjoining state proceedings, per-
mits a court to enjoin a state court “where nec-
essary in aid of its jurisdiction, or to protect or
effectuate its judgments.” 28 U.S.C. § 2283.
The relitigation exception is grounded in
principles of res judicata and collateral estop-
pel. Chick Kam Choo v. Exxon Corp., 486
U.S. 140, 147 (1988). The test for the
relitigation exception is the same test used to
determine claim preclusion or res judicata:
“(1) the parties in a later action must be
identical to (or at least in privity with) the
parties in a prior action; (2) the judgment in
the prior action must have been rendered by a
court of competent jurisdiction; (3) the prior
action must have concluded with a final
judgment on the merits; and (4) the same claim
or cause of action must be involved in both
suits.” Regions Bank v. Rivet, 224 F.3d 483,
488 (5th Cir. 2000) (internal quotation marks
and citation omitted); N.Y. Life Ins. Co. v.
Gillispie, 203 F.3d 384, 387 (5th Cir. 2000).
In Next Level Communications LP v. DSC
Communications Corp., 179 F.3d 244, 250
(5th Cir. 1999), we recognized that the
relitigation exception also applies where issue
preclusion, or collateral estoppel, exists.15 The
district court sought to protect its f.n.c. dis-
missalSSa judgmentSSso we must decide
whether it is res judicata for purposes of the
relitigation exception.
The permanent injunction prohibited
plaintiffs and counsel from pursuing “any suit
or cause of action against defendants” in any
Texas state or federal court.16 The district
court determined that an f.n.c. dismissal is en-
titled to claim-preclusive effect as a final judg-
ment on the merits, finding also that Texas
state courts would apply the same choice-of-
law rules and “virtually the same” f.n.c. test as
a federal court. We conclude that an f.n.c. dis-
missal is not a decision on the merits, so we di-
rect the court to modify its injunction to pre-
vent plaintiffs from relitigating only the
choice-of-law determination.
Plaintiffs contend the injunction is
inappropriate because defendants failed to
15 “Collateral estoppel exists where: (1) the is-
sue at stake is identical to the one involved in the
(continued...)
15(...continued)
prior action; (2) the issue was actually litigated in
the prior action; (3) the determination of the issue
in the prior action was a necessary part of the judg-
ment in that earlier action; and (4) the legal
standard used to assess the issue is the same in
both proceedings.” Next Level, 179 F.3d at 250
(citations and internal quotation marks omitted).
16 The permanent injunction order broadly for-
bids plaintiffs from pursuing “any suit or cause of
action” against defendants; only the memorandum
opinion and temporary restraining order limit re-
litigation of claims “arising from the August 12,
1999 accident.” Plaintiffs do not attack the
permanent injunction order on this technicality,
however, so neither will we. See Royal Ins. Co. v.
Quinn-L Capital Corp., 960 F.2d 1286, 1294 (5th
Cir. 1992) (“We thus reject appellants’
construction of the declaratory judgment as
artificial and unnecessarily formalistic.”).

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10
demonstrate imminent harm or the lack of an
adequate remedy. Rondeau v. Mosinee Paper
Corp., 422 U.S. 49, 57 (1975). Plaintiffs ar-
gue that pleas of res judicata, where ap-
propriate, are sufficient to protect the Vasquez
II court’s dismissal. The court’s finding that
Vasquez IV was plaintiffs’ second attempt to
relitigate its “final judgment” was sufficient,
however, to enjoin further litigation. Quintero
v. Klaveness Ship Lines, 914 F.2d 717, 721
(5th Cir. 1990); Next Level, 179 F.3d at 257.
In Quintero, 914 F.2d at 720-21, we
affirmed a decision to enforce the principles of
res judicata in the first instance by enjoining
state court relitigation of a choice-of-law de-
termination. Though we conclude that the in-
junction impermissibly prohibits plaintiffs from
suing in state court, the district court did not
err by invoking the relitigation exception,
which seeks to prevent the wasteful and
harassing revisiting of previously decided
matters.
A.
At least where there is claim preclusion, the
relitigation exception applies only to the actual
parties of the first proceeding and those in
privity with them. Rivet, 224 F.3d at 488.
The permanent injunction designated
“plaintiffs, their attorneys, their agents, and all
persons acting on behalf of plaintiffs, or in
concert with any and all of the plaintiffs or
their attorneys,” as well as the moving
defendants. Vasquez IV contains two new
plaintiffsSSthe parents of decedent Ivonne
JuarezSSand five new defendants not named in
Vasquez II.
Privity has been described as nothing more
than a “legal conclusion that the relationship
between the one who is a party on the record
and the non-party is sufficiently close to afford
application of the principle of preclusion.”
Southwest Airlines, Inc. v. Texas Int’l Airlines,
Inc., 546 F.2d 84, 95 (5th Cir. 1977) (citation
omitted). Privity exists where, for example, a
party’s claim is derivative of the original
party’s claim.17
Ivonne Juarez’s estate representative, Jes-
sica Juarez, is a party in Vasquez II, but her
parents did not join the litigation until the ad-
vent of Vasquez IV. Given that both seek
wrongful death claims on behalf of Ivonne
Juarez and are represented by the same
counsel, they are in privity with one another.
Our conclusion is bolstered by the fact that
plaintiffs’ counsel named Juarez’s parents as
parties in two motions filed in Vasquez II; the
parents also submitted a list of all companies
sued previously to the Vasquez II court. The
court’s reference to all parties acting “on be-
half of” or “in concert with” plaintiffs means
that Juarez’s parents were among those
properly enjoined.
The five new defendants, on the other hand,
are not proper subjects of the injunction. The
court enjoined suit against only the moving
defendants and did not make any findings as to
17 See Terrell v. DeConna, 877 F.2d 1267,
1270-73 (5th Cir. 1989) (holding that a wife bring-
ing a loss-of-consortium claim cannot relitigate
issues that had been decided in her husband’s
personal injury suit); Meador v. Oryz Energy Co.,
87 F. Supp. 2d 658, 665 (E.D. Tex. 2000) (finding
that where two estate beneficiaries were “in privity
with their common ancestor for a claim belonging
to that ancestor, it follows that they are also in
privity with each other”).

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11
privity. Quintero, 914 F.2d at 721.18 Though
it is arguable that plaintiffs could have sued
these five defendants in the original action, the
relitigation exception, as noted, requires that
the claims actually be litigated in the first pro-
ceeding. Hatcher, 152 F.3d at 544. Even if
the injunction otherwise falls within the re-
litigation exception, its express terms prevent
enjoining litigation against non-Vasquez II
defendants.
B.
An f.n.c. dismissal, based on a doctrine “of
procedure rather than of substance,” Am.
Dredging Co. v. Miller, 510 U.S. 443, 453
(1994), does not resolve the substantive merits
and therefore falls outside the relitigation ex-
ception.19 In Chick Kam Choo, 486 U.S. at
142-43, a Singapore resident brought maritime
and Texas state law claims in federal court. In
granting defendant’s motion to dismiss on
grounds of f.n.c., the district court found that
Singapore law governed. The court enjoined
the plaintiff after she refiled the Texas state
law claim and brought a new claim under Sing-
apore law in Texas state court.
The Supreme Court vacated the injunction
so far as it prohibited litigating the Singapore
law claim, noting that the f.n.c. dismissal “did
not resolve the merits of this claim.” Id. at
148. In other words, instead of the substantive
merits, “the only issue decided by the District
Court was that petitioner’s claims should be
dismissed under the federal forum non con-
veniens doctrine.” Id.
Rule 41(b) states that an order of dismissal
“operates as an adjudication on the merits”
unless the court states otherwise or the dis-
missal is for lack of jurisdiction, improper ven-
ue, or failure to join a party under Rule 19.
FED. R. CIV. P. 41(b).20 Because an f.n.c.
dismissal involves the court’s “declin[ing] to
exercise its jurisdiction, even though the court
has jurisdiction and venue,” Piper, 454 U.S. at
250, it does fall under one of the three
exceptionsSSlack of jurisdiction, lack of
venue,21 or failure to join a party. Nor did the
18 See Hatcher v. Avis Rent-A-Car Sys., Inc.,
152 F.3d 540, 544 (5th Cir. 1998) (“Since these
individuals were not named in the federal court ac-
tion, no claim against them was actually decided by
the federal court.”).
19 Baris v. Sulpicio Lines, Inc., 74 F.3d 567,
572-73 (5th Cir.), vacated, 74 F.3d 575 (1996),
reh’g en banc, 101 F.3d 367 (1996). The panel
opinion in Baris was vacated; an equally divided en
banc court affirmed the court’s enjoining of re-
litigation following the district court’s f.n.c. dis-
missal.
20 FED. R. CIV. P. 41(b) states:
For failure of the plaintiff to prosecute or
to comply with these rules or any order of
court, a defendant may move for dismissal
of an action or of any claim against the
defendant. Unless the court in its order for
dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not
provided for in this rule, other than a
dismissal for lack of jurisdiction, for
improper venue, or for failure to join a party
under Rule 19, operates as an adjudication
upon the merits.
21 Although the Court has observed that f.n.c. is
a “supervening venue provision,” Am. Dredging,
510 U.S. at 453, there is a long-standing distinction
between a 28 U.S.C. § 1404(a) f.n.c. transfer and
an “improper forum,” Tel-Phonic Servs. v. TBS
Int’l, Inc., 975 F.2d 1134, 1141 (5th Cir. 1992).
This, we feel, warrants a distinction between an
(continued...)

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district court state that the dismissal was
involuntary; the court instead stated that by
dismissing with prejudice, it sought to
preclude plaintiffs from relitigating their claims
“elsewhere in this country.”
Previously, rule 41(b)’s effect regarding
claim preclusion was questioned because of
the limited enumerated exceptions to its
default rule that judgments generally be
deemed “on the merits.” 18 CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 4435, at 140 (2d ed. 2002).
Many types of dismissals “do not seem to fall
within the categories ‘provided for in this rule’
and yet clearly should notSSand do
notSSoperate as an adjudication that precludes
a second action on the same claim.” Id.
In Semtek Int’l, Inc. v. Lockheed Martin
Corp., 531 U.S. 497 (2001), the Court reigned
in rule 41(b) as a determinant of claim-
preclusion, recognizing that the meaning of
“judgment on the merits” has changed over
time and “has come to be applied to some
judgments” (like the instant district court’s
f.n.c. dismissal) “that do not pass upon the
merits of a claim and hence do not (in many
jurisdictions) entail claim-preclusive effect.”
Id. at 502. The Court determined that rule
41(b) primarily “relates to the dismissing court
itself.” That is, an “adjudication on the merits”
bars refiling of the same claim in the same
court but does not establish claim preclusion.
Id. at 505-06. Semtek held that when a
diversity court dismisses a claim on state
substantive law grounds, the preclusive effect
of the judgment is measured not by rule 41(b),
but by the preclusion law of the state in which
the court sits.
The district court, although exercising di-
versity jurisdiction, dismissed on federal pro-
cedural grounds, thus distinguishing Semtek.
And despite rule 41(b)’s enabling the court to
prevent relitigation of federal f.n.c. principles
in a Texas federal court,22 we cannot, after
Semtek, look to the rule as a guide to the
judgment’s claim-preclusive effect elsewhere.
Semtek states that rule 41(b) “would be a high-
ly peculiar context in which to announce a fed-
erally prescribed rule on the complex question
of claim preclusion, saying in effect, ‘All
federal dismissals (with three specified
exceptions) preclude suit elsewhere, unless the
court otherwise specifies.’” Id. at 503. Also,
permitting a rule of civil procedure to control
the effect given a federal judgment by a state
court arguably violates the jurisdictional limi-
tation of the Rules Enabling Act.23 Id.
Instead, we look to the longstanding rule
that “federal common law governs the claim-
preclusive effect of a dismissal by a federal
court sitting in diversity.” Id. at 508 (citation
omitted). Fortunately, Chick Kam Choo,
21(...continued)
f.n.c. dismissal and an “improper venue” dismissal.
22 Our statement in Quintero that an f.n.c. dis-
missal may be designated “‘with prejudice,’ so long
as the plaintiff’s ability to reinstate the action is
otherwise adequately protected,” means only that a
court may prevent relitigation of the federal f.n.c.
issue. 914 F.2d at 722. So far as Quintero may
be read as permitting an f.n.c. dismissal to be
afforded a broader preclusive effect, that case dealt
only with an injunction barring relitigation of a
choice-of-law determination, so it is dictum. Id.
23 The Rules Enabling Act states that the rules
“shall not abridge, enlarge or modify any
substantive right.” 28 U.S.C. § 2072(b).

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which makes no mention of rule 41, reveals
that an f.n.c. dismissal is not a claim-preclusive
judgment.
Chick Kam Choo characterizes a dismissal
based on federal f.n.c. principles as one not re-
solving the underlying substantive issues. 486
U.S. at 148. The principle of f.n.c., as “noth-
ing more or less than a supervening venue pro-
vision,” Am. Dredging, 510 U.S. at 453,
contemplates resolving the merits in another
forum, negating the possibility of claim-
preclusion. Although an f.n.c. dismissal desig-
nated on the merits may bar reconsideration of
the claims in another Texas federal court,24 it
cannot forever bar the controversy from all
American courts. To conclude otherwise
would prevent states from deciding the
openness of their courts.25
Defendants seek to distinguish Chick Kam
Choo because Texas f.n.c. law has changed;
they argue that today Texas would apply the
same or even a less deferential standard than
the federal f.n.c. standard, permitting
application of the relitigation exception. In
contrast to the situation in Semtek, where the
dismissal’s preclusive effect was dictated by
state preclusion law, defendants seek to have
the preclusive effect of the f.n.c. dismissal turn
on differences between federal and state f.n.c.
law.
This would have the undesirable effect of
varying the preclusive effect accorded a federal
f.n.c. dismissal based on the law of the in-
terpreting state. Instead, the type of federal
common law applied to a federal procedural
dismissal, unlike a dismissal based on state
substantive law, does not incorporate state
law. Chick Kam Choo, 531 U.S. at 508. The
threats of “forum-shopping . . . and . . .
inequitable administration of the laws” that
Erie seeks to avoid, Hanna v. Plumer, 380
U.S. 460, 468 (1965), are non-existent where
a dismissal is based on federal procedure.
Chick Kam Choo’s observation regarding the
differences between the Texas “open courts”
policy and federal f.n.c. law serves only to
emphasize the likelihood of a different result in
state court.
C.
Whereas the f.n.c. dismissal did not decide
the substantive merits of plaintiffs’ claims, the
court’s choice of Mexican law did. This is
somewhat counter-intuitive, given that a
choice-of-law determination is a necessary part
of an f.n.c. dismissal. Piper, 454 U.S. at 245.
The result is that plaintiffs are not barred from
pursuing their claims in Texas state court so
long as they bring only Mexican law claims.
Key to Chick Kam Choo’s reasoning is that
a choice-of-law determination made in
24 Even where a court enters a final f.n.c. dis-
missal, it may reconsider the issue if there is a
change in the material facts underlying the
judgment. Exxon Corp. v. Chick Kam Choo, 817
F.3d 307, 312 (5th Cir. 1987), rev’d on other
grounds, 486 U.S. 140 (1988).
25 Chick Kam Choo, 486 U.S. at 148-49
(“Federal forum non conveniens principles simply
cannot determine whether Texas courts, which
operate under a broad “open-courts” mandate,
would consider themselves an appropriate forum
for petitioner’s lawsuit . . . . [W]hether the Texas
state courts are an appropriate forum for
petitioner’s Singapore law claims has not yet been
litigated.”); see also Picco v. Global Marine
Drilling Co., 900 F.2d 846, 848 (5th Cir. 1990)
(“[Chick Kam Choo] held that a federal forum non
conveniens dismissal was not per se necessarily
res judicata of the appropriateness of state courts
as a forum for the same litigation . . . .”).

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furtherance of an f.n.c. dismissal is a decision
on the merits. Regarding the Texas law claims
previously dismissed in federal court on
grounds of f.n.c., Chick Kam Choo stated that
the “validity of the claim was adjudicated”
once the lower court determined that
Singapore law governed. Chick Kam Choo,
486 U.S. at 150. In other words, the district
co urt ’s choice-of-law determination
“necessarily precludes the application of Texas
law, [so] an injunction preventing relitigation
of that issue in state court is within the scope
of the relitigation exception to the Anti-
Injunction Act.”26 Id.; see also Quintero, 914
F.2d at 722.
Following the reasoning of Chick Kam
Choo, the district court’s decision to apply
Mexican law adjudicated plaintiffs’ Texas law
claims. Even if the other f.n.c. factors were
found to favor Texas over Mexico, plaintiffs’
Texas law claims would be unsustainable in
light of the court’s adverse choice-of-law de-
termination. As the district court observed, it
actually rendered two judgments: (1) Mexican
law governs the controversy; and (2) the f.n.c.
factors favor dismissal and trial in Mexico.
Under Chick Kam Choo, only the former is a
decision on the merits.
Even if a choice-of-law determination were
not considered a judgment separate from the
f.n.c. dismissal, issue preclusion would make it
a proper subject of the relitigation exception.
Next Level, 179 F.3d at 249-50. The choice-
of-law issue was “distinctly put in issue,
litigated, and determined in the former action.”
Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th
Cir. 1991) (citation omitted). As noted,
federal courts apply the same choice-of-law
analysis as the state in which they sit. Klaxon,
313 U.S. at 497. Also, issue preclusion does
not require that the accompanying
judgmentSSin this case the f.n.c. dismissalSSbe
adjudicated on the merits. Acree v. Air Line
Pilots Ass’n, 390 F.2d 199, 203 (5th Cir.
1968). Consistent, however, with Chick Kam
Choo, our finding that the choice-of-law deter-
mination actually adjudicated the Texas state
law claims, thereby triggering claim preclusion,
prevents application of the injunction beyond
the plaintiffs and those in privity.27
For the foregoing reasons, we VACATE
the f.n.c. dismissal and permanent injunction
and REMAND with instruction to add a return
jurisdiction clause to the judgment and modify
the injunction enjoining plaintiffs from reliti-
gating the court’s choice-of-law determination.
26 In maritime cases, choice-of-law is a
determination on the merits and may be treated as
the equivalent of a motion for summary judgment.
Quintero, 914 F.2d at 721; Nunez-Lozano v.
Rederi, 634 F.2d 135, 137 (5th Cir. Unit A 1980).
No reason comes to mind for limiting this principle
to maritime cases.
27 Unlike claim preclusion, collateral estoppel
does not always require complete identification of
parties. Next Level, 179 F.3d at 255-56; Meza v.
Gen. Battery Corp., 908 F.2d 1262, 1273 (5th Cir.
1990).

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