At the time In re XTO Energy (In re XTO Energy, Inc., 2018 WL 2246216 (Tex. App.-Houston [1st Dist.]) was decided by the 1st Court of Appeal in May of 2018, Texas Appeals Courts had already issued a slew of cases in preceding years that looked very favorably upon defendant forum non conveniens motions when the incident, most of the witnesses, and evidence were located outside the State of Texas. Defendants had obtained mandamus relief in numerous decisions leading up to In re XTO Energy: In re Mantle Oil & Gas (In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 187 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding), In re BPZ Resources Inc. (In re BPZ Res., Inc., 359 S.W.3d 866, 875 (Tex. App.-Houston [14th Dist.] 2012 orig. proceeding), and In re Transco (In re Transcontinental Gas Pipeline Co., LLC, 542 S.W.3d 703 (Tex. App.-Houston [14th Dist.], 2017).
The courts, in all those matters, found that the six forum non conveniens factors overwhelmingly gravitated in favor of a dismissal motion under Texas Rule of Civil Practice 71.051 (b), despite the trial court’s denial of the motion. Because the accidents took place outside the state of Texas, because most witnesses, evidence and investigative agencies were located outside of the state of Texas, and given the availability of an appropriate alternate forum, it was too much for the appeals court to overlook, and reversed the trial court’s ruling in each of those cases.
In contrast, a recent decision by the 14th Court of Appeal, has taken predominately similar facts and affirmed the trial court’s denial of such a motion, keeping the matter in Harris County. A review of the case indicates the existence of factors that would normally tilt the forum non-convenience decision towards dismissal.
In In re Friede & Goldman, LLC (In re Friede & Goldman, LLC, 2019 WL 2041071 (Tex. App.-Houston [14th Dist.], forty-four plaintiffs filed suit in Harris County based on an accident arising out of an off-shore oil well in the Bay of Campeche, which are territorial waters of Mexico. One worker died, and numerous other workers, most of which were citizens of Mexico, were injured. The worker plaintiffs were all working for Mexico-based employers at the time of the incident, and all Mexico-based health care providers treated their injuries. At the time of the incident, the vessel was contracted to Mexico’s National Oil Company. Defendants moved to dismiss the suit on the grounds of forum non conveniens, but the motion was denied by the trial court.
The 14th Court of Appeal examined the six forum non conveniens factors. An alternate court (in Mexico) offered an available forum, and the laws of Mexico offered an adequate remedy at law. The evidence further established most of the relevant documents in evidence, and most of the witnesses to the incident, were located in Mexico, although the vessel in issue had been constructed in China and there was some conflicting evidence that the ship manager, operator and technical manager of the vessel was a German entity. The matter was being investigated in Mexico, and in accordance with Mexican regulations.
The Court further found that no other litigation was pending in Texas so there was no duplication of litigation to weigh in favor of keeping the case in Harris County. Finally, with regard to whether Mexican courts could exercise jurisdiction over the defendants, the Court found in favor of dismissal as well, as all defendants stipulated to the jurisdiction of the Mexican court system.
Seemingly de-emphasizing the above facts, the Court focused on the substantial injustice factor and, without much analysis either way, provided great deference to the trial court’s determination that this factor weighed in favor of neither dismissal nor maintaining the action in Harris County. Finally, the Court observed that neither the relator nor the plaintiffs put on any evidence of “the extent to which injuries resulted from acts or omissions that occurred in Texas”, and as a result, the Court could make no determination with regard to that factor.
Weighing all the factors, the Court surprisingly denied the writ of mandamus, affirming the trial court’s decision.
It is unclear whether this case is an aberration, or a shift in precedent as to what constitutes “inconvenience” for the purpose of the forum non conveniens analysis. It is fair to say that there is no longer a de-facto presumption that industrial accidents that occur outside of the state of Texas, involving foreign entities, with non-Texas plaintiffs and non-Texas evidence and witnesses, will summarily be dismissed under Texas Rule of Civil Practice 75.051.