Subject: IN THE SUPREME COURT OF TEXAS
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Date: Sat, 3 Nov 2007 15:39:45 -0500

IN THE SUPREME COURT OF TEXAS

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No. 04-1129

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In re Pirelli Tire, L.L.C.,
Relator

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On Petition for Writ of Mandamus

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Argued November
29, 2005

Justice Willett, joined by Justice Wainwright as to Part I,
concurring.

I agree that
this Mexico car accident case
does not belong in the Texas judicial system, but for reasons simpler
than those posited by the Court.

I. The Unadorned Language of Section 71.051(a) Controls This
Case

Boiled down, the Court’s holding is that the various common-law factors
from Gulf Oil “clearly and overwhelmingly favor a Mexican forum for
resolution of this dispute.”[1] I agree wholeheartedly that the Gulf
Oil factors require dismissal, but I disagree that the Legislature provided
that these factors apply and should inform the Court’s analysis.

It is undisputed that the governing statutory provision in this case is
subsection (a) of section 71.051,[2] which covers suits brought by foreign
plaintiffs and imposes a modest standard for forum non conveniens dismissals, not subsection
(b),[3] which covers suits brought by
legal residents and imposes a markedly tougher standard. Subsection (a) asks
only whether the case “would be more properly heard in a forum outside this
state”;[4] it says nothing, presumably on purpose,
about the perceived adequacy of that forum’s remedy or about the balance of
public and private interests that animates the Gulf Oil factors.

It is true that the 78th Legislature repealed subsection (a) effective
September 1, 2003, and that all forum non conveniens
disputes, regardless of plaintiff’s residency, are now governed by the
six-factor balancing test of subsection (b).[5] But it is also true that subsection (a)
was on the books and controlling when this case was filed, and subsection (a)
plainly omits any Gulf Oil-type considerations. The Court today adopts a
no-harm, no-foul approach because a foreign plaintiff who loses under the more
pro-plaintiff subsection (b) must necessarily lose under subsection (a), but
given that this litigation predated the elimination of subsection (a), I would
apply that less-onerous (for defendants) standard from the start. The
subsections are simply and indisputably different. Lawmakers enacted two
distinct standards based on the plaintiff’s residency status, and it is a
distinction with a difference. Cases involving foreign plaintiffs do not require
the same balancing of interests as cases involving resident plaintiffs.[6] I would not blur the statute’s
residency-based distinction by importing factors that elected policymakers, for
reasons good or bad, chose not to include in cases involving nonresident
plaintiffs.

The Court contends that subsection (a)’s catch-all phrase “in the
interest of justice” is sufficient to justify cutting-and-pasting the Gulf
Oil factors from subsection (b). The Court concedes these factors are not
controlling but considers them nonetheless instructive in determining whether
forum non conveniens dismissal is required under
subsection (a). No doubt, weighing the six specifically enumerated Gulf
Oil factors may prove helpful in explicating a gauzy “interest of justice”
standard, but in my view, applying them is contrary to what the Legislature
enacted, and thus what the Legislature intended.[7] Lawmakers drew a bright-line distinction
between residents and nonresidents who wish to invoke this State’s judicial
machinery and conferred a preference on the former. “Courts must take statutes
as they find them,”[8] and treating this case as a
post-September 1, 2003 case rather than a pre-September 1, 2003
case by importing language from one provision to another eviscerates the
distinction between subsections (a) and (b).

The facts underlying today’s case are extreme, and invocation of the
forum non conveniens doctrine is manifestly warranted
in this case where:

1.
The plaintiffs are Mexican citizens who reside in Mexico;

2.
Defendant Pirelli is a Delaware corporation
with its principal place of business in Georgia;

3.
The allegedly defective tire was manufactured in Iowa;

4.
The tire, Mexican-registered truck, and all other accident-related physical
evidence are in Mexico;

5.
The accident occurred in Mexico and the damages were suffered
there;

6.
The Mexican police and medical examiner investigated the accident;

7.
All witnesses to the accident are in Mexico;

8.
Several significant witnesses refuse to come to Texas for depositions or testimony;

9.
One of the plaintiffs has refused to come to Texas for a deposition despite filing suit
here;

10.
Compelling the witnesses and plaintiff to appear may not be possible; and

11.
Pirelli has stipulated that it is amenable to suit in Mexico.

These undisputed facts demonstrate convincingly that Texas has no dog in this
fight. As we stated in In re Smith Barney,
Inc., “It is fundamentally unfair to burden the people of Texas with the cost of
providing courts to hear cases that have no significant connection with the
State.”[9] It seems beyond serious dispute that this
case “would be more properly heard in a forum outside this state,”[10] and those voted-on words constitute the
applicable legal test. Mexico
has the paramount stake in this lawsuit; Texas, virtually none. When the most
consequential connection between a case and the chosen forum is a plaintiff’s
decision to sue there, little more need be said. On these uncontested facts,
there is no need to balance the various considerations subsection (b) applies to
cases involving resident plaintiffs. The complete absence of a nontrivial
Texas
connection is sufficient in itself to mandate dismissal.

I would simply hold, under the governing pre-September 1, 2003 statute,
that where (1) the plaintiffs are not legal residents of the United States and
(2) a non-Texas forum is more appropriate, the forum non conveniens doctrine protects the court system of this State
and its citizens, who as taxpayers fund the courts and who as jurors serve as
finders of fact. By holding otherwise, the trial court abused its discretion
based on section 71.051(a).

II. The Governing Statute Requires No “Adequacy”
Assessment

The Court and the Dissent also consider whether Mexico
would provide an “adequate” alternative forum. The voluminous filings in the
trial court and this Court persuade me that this issue is hotly contested and
its resolution by a court unfamiliar with Mexican procedural and substantive law
is not a simple task.[11] In any event, such an inquiry is
unnecessary. Section 71.051(a) does not mandate an “adequacy” assessment,
however measured, of an alternative forum when the plaintiffs are not legal
residents. It merely asks whether the case “would be more properly heard in a
forum outside this state”—that is, the movant need
only establish the existence of another forum, not its adequacy.
Mexico indisputably has civil
courts that entertain tort claims for its citizens who are injured in
Mexico. By contrast, subsection (b)
of the statute, applicable to plaintiffs who are legal residents of the United
States, lists as factors for the court’s consideration whether “an alternative
forum exists” and whether that alternate forum “provides an adequate remedy.”[12]

Moreover, whatever legal impediments to relief in Mexico that plaintiffs have demonstrated, the
record points to no legal barrier to plaintiffs seeking relief in the State
where Pirelli is incorporated (Delaware), or
where Pirelli has its principal place of business (Georgia), or where the allegedly defective tire
was manufactured (Iowa).

Reading subsections (a) and (b) together, I would hold that the trial
court need not consider whether Texas courts might provide a remedy that Mexico,
for policy reasons of its choosing, would deny to her own citizens. Texas is not required to provide more relief to Mexican
citizens than Mexico itself provides. Allowing the
suit to proceed in Texas simply because this
State may provide the most attractive or convenient forum for plaintiffs, or
because plaintiffs rate Texas as the most
advantageous forum as a matter of legal strategy, is not justified where
Texas has no
stake in the outcome.

III. Trial Court Discretion Under the
Statute Is Not Boundless

Finally, I believe the Dissent makes too much of language in section
71.051(a) that the district court “may” decline to exercise its jurisdiction
under the doctrine of forum non conveniens. In my
view, “may” simply confirms that the district court’s decision is a matter of
discretion, subject to review for abuse of that discretion, or, when the case is
before us on mandamus, a clear abuse of discretion.[13] Permissive does not mean limitless, and
while appellate courts should not second-guess trial court rulings cavalierly,
the word “may” does not render such rulings bulletproof and unreviewable. There is nothing unusual about giving trial
courts discretion to make rulings and giving appellate courts authority to
scrutinize those rulings for abuse. By this standard courts of appeals routinely
review, by mandamus or direct appeal, all manner of discovery, evidentiary,
continuance, new trial, severance, jury charge, and jury selection rulings, to
name a few. More to the point, the Legislature knows how to grant trial courts
absolute discretion in venue-related decisions,[14] but it did not bestow such unfettered
discretion here.

I wonder where the Dissent’s analysis would end. I see no limiting
principle that turns on Mexico’s geographic proximity to Texas or our long
friendship and shared history with that nation. The analysis would seem to apply
with equal force to any plaintiff located anywhere on Earth who wishes to sue
any defendant located anywhere on Earth, based on an injury occurring anywhere
on Earth. The Dissent appears to hold the view that so long as the Texas court
has personal jurisdiction over the defendant, as it might with many global
manufacturers under principles of general jurisdiction, and that defendant is
unable to persuade the Texas trial court that another “adequate” alternative
forum is available, then the case must be allowed to proceed in Texas, and the
trial court’s decision is immune from appellate review.

Considering a case at the opposite extreme, if the defendant and
witnesses all lived in Texas, the claim arose
in Texas, and Texas law applied, and the trial court
nonetheless dismissed on forum non conveniens grounds,
surely that decision would be reviewable despite the presence of the word “may.” Discretion works both ways, and if a trial court can
abuse its discretion by dismissing a case, surely it can abuse its discretion by
not dismissing a case.

I agree with the Court that this case should be dismissed. Texas, while hospitable as befits a state whose motto is
Friendship,[15] is not and should not serve as the
“courthouse for the world,”[16] particularly where, as here, Texas has no connection
to the location, parties, or cause of the accident. Plaintiffs have offered no
sound reason why Texas should be compelled to
provide plaintiffs—including one plaintiff unwilling to travel here—a physical
forum, court personnel, jurors, and other components of the Texas judicial system.

Burdening the Texas judicial system with
cases like this one abuses the public interest, robs Cameron County citizen-jurors and litigants of
scarce court resources, and offends “considerations of fundamental fairness and
sensible and effective judicial administration.”[17]

_______________________________________

Don R. Willett

Justice

Opinion delivered:
November 2, 2007

[1]
___ S.W.3d at ___ (citing Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947)).

[2]
See Act of May 27, 1997, 75th Leg., R.S., ch.
424, § 1, sec. 71.051(a), 1997 Tex. Gen. Laws 1680, 1680, repealed by Act
of June 2, 2003, 78th Leg., R.S., ch. 204, § 3.09,
2003 Tex. Gen. Laws 847, 855. All references in this opinion to Texas Civil Practice & Remedies
Code section 71.051 are references to the 1997 version governing this
dispute.

[3]
See Act of May 27, 1997, 75th Leg., R.S., ch.
424, § 1, sec. 71.051(b), 1997 Tex. Gen. Laws 1680, 1680, amended by Act
of June 2, 2003, 78th Leg., R.S., ch. 204, § 3.04,
2003 Tex. Gen. Laws 847, 854.

[4]
Tex. Civ. Prac. &
Rem. Code §
71.051(a).

[5]
Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§
3.04, 3.09, 23.02(d), 2003 Tex. Gen. Laws 847, 854–55, 899.

[6]
I do not venture to comment on how such residence-based distinctions would fare
if challenged on constitutional grounds, as the issue is not raised in this
case.

[7]
Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006)
(“Ordinarily, the truest manifestation of what legislators intended is what
lawmakers enacted, the literal text they voted on.”).

[8]
RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985) (internal quotation marks omitted) (quoting
Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920)).

[9]
975 S.W.2d 593, 598 (Tex. 1998).

[10] Tex. Civ. Prac. & Rem.
Code §
71.051(a).

[11] Just one of the affidavits in the record,
by a Mexican attorney and concerning Mexico’s jurisdiction over Pirelli,
is thirty-one pages long and has roughly three inches of attachments, in Spanish
and English.

[12] Tex. Civ. Prac. & Rem.
Code §
71.051(b).

[13] In re Prudential Ins. Co., 148
S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).

[14] Tex. Civ. Prac. & Rem.
Code § 15.002(c) (foreclosing appellate
review of a trial court’s decision regarding transfer of a case); see also
Garza v. Garcia, 137 S.W.3d 36, 38–39 (Tex. 2004).

[15] Tex. Gov’t Code § 3101.004.

[16] Smith Barney, 975 S.W.2d at 597
(quoting ‘21' Int’l Holdings, Inc. v. Westinghouse Elec. Corp., 856
S.W.2d 479, 486 (Tex. App.—San Antonio 1993, no writ) (Peeples, J.,
concurring)).

[17] Dow Chemical Co. v. Alfaro, 786
S.W.2d 674, 703 (Tex. 1990) (Hecht, J.,
dissenting) (quoting Adkins v. Chicago, R.I. & Pac. R.R., 301 N.E.2d
729, 730 (Ill.
1973)).