Bridgestone/Firstone v. Barker, Sarah Evans ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3111
IN RE: FORD MOTOR COMPANY AND
BRIDGESTONE/FIRESTONE NORTH
AMERICAN TIRE, LLC, as successor to
Bridgestone/Firestone, Inc.,
Petitioners.
____________
Petition for a Writ of Mandamus to the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 00-9373-C-B/S, MDL No. 1373—Sarah Evans Barker, Judge.
____________
SUBMITTED OCTOBER 30, 2002—DECIDED NOVEMBER 13, 2002Œ
OPINION SEPTEMBER 12, 2003
____________
Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Several hundred prod-
ucts liability lawsuits filed in federal court against Ford
Motor Company and Bridgestone/Firestone North American
Œ
The order issued with a notation that an opinion would follow.
Because our decision preceded the opinion, we granted the peti-
tioners an extension of time for filing a petition for rehearing until
14 days after the issuance of this opinion, should they choose to
file such a petition. See Smith v. American Arbitration Ass’n, 233
F.3d 502, 502 n.* (7th Cir. 2000).
2 No. 02-3111
Tire, LLC (Firestone) concerning the allegedly defective
designs of certain models of Firestone tires and the Ford
Explorer are currently consolidated for pretrial proceed-
ings in the Southern District of Indiana.1 This matter ad-
dresses 121 of those cases. Each case was filed initially in
a district court sitting within Alabama, California, Florida,
or Mississippi by Venezuelan or Colombian nationals (or
their representatives). These plaintiffs claim that they were
injured or killed in their home countries in accidents caused
by the allegedly defective products.
Ford and Firestone moved to dismiss the cases under
the doctrine of forum non conveniens, asserting that trial
in the courts of Venezuela and Colombia would be more
convenient. The district court denied the motions after it
concluded, among other things, that the courts of Venezuela
were not an available alternative forum, and that even
though the Colombian court system provides an adequate
alternative forum, on balance, with respect to both Vene-
zuela and Colombia, the private and public interest favored
retention of the lawsuits in the United States. See In re
Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F.
Supp. 2d 1125 (S.D. Ind. 2002). Ford and Firestone asked
the district court to certify its order for interlocutory appeal
under 28 U.S.C. § 1292(b), but the court denied this motion
as well, concluding that Ford and Firestone had not met the
requirements for certification. See In re Bridgestone/Fire-
stone, Inc., Tires Prods. Liab. Litig., 212 F. Supp. 2d 903(S.D. Ind. 2002). Ford and Firestone then petitioned this
court under 28 U.S.C. § 1651(a) for a writ of mandamus
1
Many of these cases have already been resolved by the district
court. As a result, this court has already had occasion to consider
various other aspects of this complex litigation. See, e.g., In re
Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763(7th Cir. 2003); In re Bridgestone/Firestone, Inc., 288 F.3d 1012(7th Cir. 2002).
No. 02-3111 3
directing the district judge either to grant their motions to
dismiss or to certify her order denying their motions to dis-
miss for interlocutory appeal. In an order dated November
13, 2002, we denied that petition for the reasons set forth
in this opinion.
I
Mandamus is a drastic remedy traditionally used to con-
fine a lower court to the lawful exercise of its jurisdiction or
to compel it to exercise its authority when it has a duty to
do so. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34
(1980) (per curiam). A writ of mandamus may issue only
if the challenged order is effectively unreviewable at the
end of the case, it inflicts irreparable harm, and it “so far
exceed[s] the proper bounds of judicial discretion as to be
legitimately considered usurpative in character, or in vio-
lation of a clear and indisputable legal right, or, at the very
least, patently erroneous.” In re Rhone-Poulenc Rorer, Inc.,
51 F.3d 1293, 1295 (7th Cir. 1995). By their nature, forum
non conveniens decisions are ill-suited to this remedy. They
are instead committed to the sound discretion of the district
court, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257
(1981), and so a litigant’s right to a particular result will
rarely be “clear and indisputable.” Allied Chemical, 449
U.S. at 36. Nevertheless, even in the context of discretion-
ary decisions, mandamus remains an appropriate remedy
if the trial judge commits a “clear abuse of discretion,” see
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383
(1953), or “patent[ ] error[ ].” Rhone-Poulenc Rorer, 51 F.3d
at 1295.
Because mandamus is not a substitute for an appeal, the
terms “clear abuse of discretion” or “patent error” are not
synonymous with the type of ordinary error that would
justify reversal in a direct appeal. See Will v. United States,
389 U.S. 90, 104 (1967) (quoting Bankers Life, 346 U.S. at
4 No. 02-3111
382, 383 (mandamus is not available for all reversible er-
rors; the function of the writ is not to control the decision of
the trial court, but rather to confine the trial court “to the
sphere of its discretionary power”)); In re Lewis, 212 F.3d
980, 982 (7th Cir. 2000); Eisenberg v. United States District
Court, 910 F.2d 374, 375 (7th Cir. 1990); In re Ralston
Purina Co., 726 F.2d 1002, 1004-05 (4th Cir. 1984). The pe-
titioner must demonstrate that the error is so serious that
it amounts to an abuse of the trial judge’s authority. In re
Balsimo, 68 F.3d 185, 186-87 (7th Cir. 1995); Rhone-Poulenc
Rorer, 51 F.3d at 1295; In re Moore, 776 F.2d 136, 139 (7th
Cir. 1985); In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995).
We find no such abuse of authority in the district court’s
decision here. The nonstatutory doctrine of forum non
conveniens permits a case to be dismissed if trial in the
plaintiff’s chosen forum would be oppressive and vexatious
to the defendant, out of all proportion to the plaintiff’s
convenience, and if it is also true that an alternative foreign
forum exists. Piper Aircraft, 454 U.S. at 241. In determining
whether to dismiss, courts consider whether an adequate
alternative forum is available to hear the case, and whether
various private and public interest factors clearly indicate
that the suggested alternative forum is superior. Kamel v.
Hill-Rom Co., Inc., 108 F.3d 799, 802-03 (7th Cir. 1997).
The private interest factors considered are “the relative
ease of access to sources of proof; availability of compulsory
process for attendance of unwilling, and the cost of obtain-
ing attendance of willing, witnesses; 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.” Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947); see also Kamel, 108 F.3d at 803. The
public interest factors include “the administrative difficul-
ties stemming from court congestion; the local interest in
having localized disputes decided at home; the interest in
having the trial of a diversity case in a forum that is at
No. 02-3111 5
home with the law that must govern the action; the avoid-
ance of unnecessary problems in conflicts of laws or in the
application of foreign law; and the unfairness of burdening
citizens in an unrelated forum with jury duty.” Kamel, 108
F.3d at 803 (citing Piper Aircraft, 454 U.S. at 241 n.6). The
defendant carries the burden of persuading the district
court that a lawsuit should be dismissed on forum non
conveniens grounds. Ford v. Brown, 319 F.3d 1302, 1311
(11th Cir. 2003); Aguinda v. Texaco, Inc., 303 F.3d 470, 476
(2d Cir. 2002); Iragorri v. United Techs. Corp., 274 F.3d 65,
71 (2d Cir. 2001) (en banc).
The first question the court resolved was whether the
courts of Venezuela provide an adequate alternative forum
for that group of plaintiffs. Resolving a conflict in expert
testimony, the judge decided that they did not. Whether her
ultimate decision to credit the testimony of the plaintiffs’
expert, Tatiana B. deMaekelt, who opined that the Vene-
zuelan courts would lack subject matter jurisdiction over
these cases, was correct is not the issue. As the Supreme
Court held in Von Cauwenberghe v. Biard, 486 U.S. 517(1988), orders denying motions to dismiss for forum non
conveniens are normally reviewed only after final judgment
in a case. Our present task in deciding whether to issue a
writ of mandamus is only to determine whether the trial
judge usurped her authority. Here, where the court took the
question before it seriously, gave careful consideration to
the relevant factors that bear on a forum non conveniens
motion, and came to a reasoned conclusion, there is no sign
of such abuse.
Although the district court could have rested its decision
with respect to the Venezuelan cases solely on its determi-
nation of the availability of that country’s courts, it did not
do so. Instead, it took the precaution of assuming for the
sake of argument that Venezuela’s courts were available
and it turned to the second part of the inquiry: the balanc-
6 No. 02-3111
ing of public and private interests. This step was necessary
in any event for the Colombian plaintiffs, because everyone
agreed that the Colombian courts were available. On bal-
ance, the court concluded, all of the cases should remain in
the United States.
Once again, Ford and Firestone have confused the kinds
of arguments they might make after a final judgment has
been entered and those that are relevant to considering a
petition for a writ of mandamus. They urge, for example,
that the district court gave too much weight to the foreign
plaintiffs’ choice of forum. The district court was aware that
this was a significant issue in the case, given the interplay
between two treaties and the forum non conveniens doc-
trine. The treaties (the Treaty of Peace, Friendship, Naviga-
tion, and Commerce, June 20, 1836, U.S.-Venez., art. XIII,
8 Stat. 466; and the Treaty of Peace, Amity, Navigation,
and Commerce, Dec. 12, 1846, U.S.-Colom. (then Republic
of New Granada), art. XIII, 9 Stat. 881) are essentially
identical. Both provide that the courts of the signatory na-
tions shall be “open and free” to the other’s citizens “on
the same terms which are usual and customary with the . . .
citizens of the country in which they may be. . . .” In short,
citizens of treaty countries are entitled to treatment equiv-
alent to that given to U.S. citizens when they appear in
courts in the United States.
The district court acknowledged that, while there is usu-
ally a strong presumption in favor of the plaintiff’s choice
of forum, the strength of the presumption is tempered when
the plaintiff is a foreign national suing in the United States.
See Piper Aircraft, 454 U.S. at 255. It chose to follow the
approach of the Second Circuit in Iragorri v. United Tech-
nologies Corp., 274 F.3d 65, 69 n.2 (2d Cir. 2001) (en banc),
under which expatriate U.S. nationals and treaty nationals
residing in their home countries are entitled to the same
degree of deference on their choice of forum as U.S. plain-
No. 02-3111 7
tiffs enjoy, but with the consideration that suing in the
United States while residing in a foreign country is less
likely to be convenient. In the absence of contrary authority
from this court (and there is none), this too was a reasoned
and responsible analysis which would be subject to appel-
late review at the end of the case.
The petitioners also raise other arguments, but they all
amount to disagreements with the way the court applied
the established legal tests. At best, Ford and Firestone
may have identified some close calls on questions like the
balance between local interests and national interests, or
the inconvenience posed by the fact that relevant evidence
will be located abroad and will be in the Spanish language.
But, to repeat the point, the mandamus remedy is not ap-
propriate for correcting a close call about how to apply
particular facts to the law. Otherwise, we would have noth-
ing left of the final judgment rule.
II
Finally, Ford and Firestone ask us to order the trial judge
to certify her order denying their motions to dismiss for in-
terlocutory review under 28 U.S.C. § 1292(b). To certify, the
district court must find that the order presents a “control-
ling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination
of the litigation.” 28 U.S.C. § 1292(b); Ahrenholz v. Bd. of
Trustees of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir.
2000). Ford and Firestone presented five issues for certifica-
tion:
(1) Whether the denial of forum non conveniens-based
dismissal of these cases is consistent with relevant
precedents holding that the United States is an in-
8 No. 02-3111
convenient forum for products liability cases involving
foreign accidents brought by foreign plaintiffs.
(2) Whether a foreign forum may be held to be unavail-
able solely because of plaintiffs’ refusal to file suit in
that forum, where the accidents occurred and in
which plaintiffs reside.
(3) Whether treaties of friendship between the United
States and Venezuela and Colombia require the Court
to accord a greater level of deference to a foreign
plaintiff who chooses to file suit in the United States.
(4) Whether the Court must analyze the local interests of
the forum state in any trial, rather than the general
interest of the United States as a whole.
(5) Whether Fed. R. Civ. P. 44.1 permits the Court to set
aside expert submissions on foreign law questions on
credibility grounds.
212 F. Supp. 2d at 906 (emphasis in original). The district
court found that questions (1) and (2) were not abstract
legal issues certifiable under § 1292(b); that (3) was not a
controlling question of law as to which there is substantial
ground for difference of opinion; and that (4) and (5) were
not controlling questions of law because reversal on either
ground would not affect the decision not to dismiss. The
court additionally found that interlocutory review would not
materially advance the ultimate termination of the liti-
gation because the parties would be no closer to resolving
their disputes if the suits were dismissed for forum non
conveniens.
Certification by the district court is a jurisdictional pre-
requisite to interlocutory review under § 1292(b), and nor-
mally the district court’s refusal to certify is the end of the
matter in this court. Hewitt v. Joyce Beverages of Wis., Inc.,
721 F.2d 625, 626 (7th Cir. 1983). Most courts have held
that mandamus is not appropriate to compel a district court
No. 02-3111 9
to certify under § 1292(b). See In re Phillips Petroleum Co.,
943 F.2d 63, 67 (Temp. Emer. Ct. App. 1991); Arthur Young
& Co. v. United States District Court, 549 F.2d 686, 698 (9th
Cir. 1977); In re Cessna Aircraft Distributorship Antitrust
Litig., 518 F.2d 213, 216-17 (8th Cir. 1975); In re Maritime
Serv. Corp., 515 F.2d 91, 92 (1st Cir. 1975) (per curiam);
Plum Tree, Inc. v. Stockment, 488 F.2d 754, 755 n.1 (3d Cir.
1975); Leasco Data Processing Equip. Corp. v. Maxwell, 468
F.2d 1326, 1344 (2d Cir. 1972). See also 16 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3929, at 373 & n.31 (2d ed.
1996); Note, Interlocutory Appeals in the Federal Courts
under 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607, 616-17
(1975). We agree. This wealth of authority exists for a very
good reason. The whole point of § 1292(b) is to create a dual
gatekeeper system for interlocutory appeals: both the
district court and the court of appeals must agree that the
case is a proper candidate for immediate review before the
normal rule requiring a final judgment will be overridden.
If someone disappointed in the district court’s refusal to
certify a case under § 1292(b) has only to go to the court of
appeals for a writ of mandamus requiring such a certifica-
tion, there will be only one gatekeeper, and the statutory
system will not operate as designed.
In the past, we have not ruled out the possibility of a writ
of mandamus in the § 1292(b) context for a truly egregious
situation, if it seemed that the district court was seriously
abusing its authority, see Anschul v. Sitmar Cruises, Inc.,
544 F.2d 1364, 1369 (7th Cir. 1976) (per curiam) (quoting
Parkinson v. April Indus., Inc., 520 F.2d 650, 660 (2d Cir.
1975) (Friendly, J., concurring)). But the way to secure
appellate consideration in such a situation is not by seeking
a writ of mandamus to require the district court to certify
something under § 1292(b). It is simply to file a petition
10 No. 02-3111
for a writ of mandamus directed to the underlying problem.
And so we end up right where we started, evaluating
whether this particular case is one that warrants extraordi-
nary measures.
Ford and Firestone do not contend that the district court
denied certification for an improper purpose; nor do they
contend that the district court applied an incorrect legal
standard. Rather, they argue only that the district court
failed to appreciate the magnitude of this case, and in so
doing, it “misapplied” the statute. They assert that the
grounds for intermediate review in this case are so strong
that mandamus is appropriate to compel certification, and
they remind us that Von Cauwenberghe confirmed that
§ 1292(b) is an appropriate avenue to review orders denying
forum non conveniens motions. 486 U.S. at 529-30. But Von
Cauwenberghe holds only that orders denying motions to
dismiss for forum non conveniens do not fall within the
collateral order doctrine of Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), and thus that some other
avenue for interlocutory relief, such as a § 1292(b) certifica-
tion, must be used. 486 U.S. at 527. It comes nowhere close
to holding that district courts will abuse their discretion if
they deny § 1292(b) certifications when they have rejected
motions to dismiss for forum non conveniens.
III
This case is one, like many in today’s world, that touches
more than one country. The tires and vehicles were de-
signed and manufactured in the United States, and they
were used in another country. People were injured outside
of the United States. Reasonable people can disagree on the
question of which country’s courts will provide the optimal
forum for litigating these issues. The district court here, for
the reasons we have explained, did not abuse her discretion
so gravely as to warrant the exercise of our mandamus
No. 02-3111 11
powers to force a different result. We therefore DENY the
petition for a writ of mandamus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-03