USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 1 of 14
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
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`INSTITUTO MEXICANO DEL SEGURO
`SOCIAL,
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` Plaintiff,
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`v.
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`CAUSE NO. 3:20-cv-99 DRL-MGG
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`ZIMMER BIOMET HOLDINGS, INC.,
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` Defendant.
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`OPINION & ORDER
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`The Instituto Mexicano del Seguro Social (IMSS) manages the purchase of medical supplies
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`for the Mexican government. IMSS alleges that Zimmer Biomet Holdings, Inc. bribed Mexican
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`government officials to facilitate the sale of its medical device products in Mexico. Zimmer Biomet
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`now moves to dismiss this suit on grounds of forum non conveniens, saying the case should be litigated
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`in Mexico. The court agrees and grants the motion.
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`BACKGROUND
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`IMSS alleges that, from 2008 to 2013, Zimmer Biomet knowingly paid bribes to Mexican
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`government officials to facilitate the sale of its products to and through IMSS. These bribes allegedly
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`facilitated the importation of unregistered medical device products into Mexico. IMSS says bribes
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`occurred through Zimmer Biomet’s indirectly-owned subsidiary in Mexico, Biomet 3i Mexico, with
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`Zimmer Biomet personnel traveling into the country to support the scheme, or through Mexican
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`agents who acted as bagmen for passing on bribes to Mexican government officials.
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`The complaint alleges that Zimmer Biomet engaged in an international bribery scheme
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`orchestrated from its corporate offices in Indiana. The scheme thus included bribes both in the
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`United States and Mexico. IMSS alleges that Zimmer Biomet has entered into deferred prosecution
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`agreements with the U.S. Department of Justice and settlement agreements with the Securities and
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`Exchange Commission regarding these schemes. IMSS asserts that, under Mexican law, it cannot
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 2 of 14
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`purchase unregistered medical products and thus wouldn’t have purchased medical devices from
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`Zimmer Biomet if it had known of the bribes here. IMSS also claims that, because of the bribery
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`scheme, various contracts from 2008 through the present are voidable.
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`DISCUSSION
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`The court may dismiss or transfer a case when considerations of economy and convenience
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`demonstrate another forum is better suited to hear it. Am. Dredging Co. v. Miller, 510 U.S. 443, 447-48
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`(1994). This doctrine of forum non conveniens applies “when an alternative forum has jurisdiction to
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`hear [a] case, and when trial in the chosen forum would establish . . . oppressiveness and vexation to
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`a defendant . . . out of all proportion to plaintiff’s convenience, or when the chosen forum [is]
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`inappropriate because of considerations affecting the court’s own administrative and legal
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`problems.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. Lumbermens Mut. Cas.
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`Co., 330 U.S. 518, 524 (1947)) (quotations omitted); see Am. Dredging, 510 U.S. at 447-48.
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`The court ordinarily defers to the plaintiff’s choice of forum, Kamel v. Hill-Rom Co., Inc., 108
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`F.3d 799, 803 (7th Cir. 1997), though a foreign plaintiff’s choice deserves less deference, Piper
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`Aircraft, 454 U.S. at 256; Kamel, 108 F.3d at 803, a turnabout mitigated by the United Nations
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`Convention Against Corruption here. Zimmer Biomet carries the burden of overcoming this
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`presumption favoring a plaintiff’s choice, and it is often a “heavy” one. In re Hudson, 710 F.3d 716,
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`718 (7th Cir. 2013); see Deb v. SIRVA, Inc., 832 F.3d 800, 805 (7th Cir. 2016) (forum non conveniens is an
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`“exceptional” doctrine). A plaintiff’s choice of forum shouldn’t be disturbed unless the balance of
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`factors tilts strongly in the defendant’s favor. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); Deb,
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`832 F.3d at 806.
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`The court may dismiss an action under forum non conveniens when (1) an alternative forum is
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`available and adequate, and (2) dismissal would serve both the private interests of the parties and the
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`public interests of the forums, see Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enterprise Fund, 589
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`2
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 3 of 14
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`F.3d 417, 421, 424 (7th Cir. 2009), though the overriding focus remains convenience, Piper Aircraft,
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`454 U.S. at 241. In rare cases when the plaintiff wants to sue in the defendant’s home jurisdiction
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`and the defendant wants to be sued in the plaintiff’s home jurisdiction, as here, the court “weigh[s] .
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`. . the relative advantages and disadvantages of the alternative forums” because there is “no prima
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`facie reason to think a plaintiff [is being] discriminated against by being sent to his home court or a
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`defendant [is being] discriminated against by being forced to stay and defend in his home court.”
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`Abad v. Bayer Corp., 563 F.3d 663, 671 (7th Cir. 2009).
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`A.
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`Mexico is an Available and Adequate Alternative Forum.
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`An alternative forum must be available and adequate. Stroitelstvo, 589 F.3d at 421. A forum is
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`“available” if “all of the parties are amenable to process and within the forum’s jurisdiction.” Id. This
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`requirement may be satisfied by a party consenting to jurisdiction. See, e.g., Fischer v. Magyar
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`Allamvasutak Zrt., 777 F.3d 847, 867 (7th Cir. 2015) (Hungarian courts available where non-
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`Hungarian party consented to jurisdiction in Hungary); Stroitelstvo, 589 F.3d at 421 (Bulgarian courts
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`available when bank headquartered in Chicago with office in Bulgaria consented to jurisdiction in
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`Bulgaria); In re Factor VIII or IX Concentrate Blood Prods. Lit., 484 F.3d 951, 957 (7th Cir. 2007) (forum
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`available when dismissal conditioned on defendant’s acceptance of service in U.K.).
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`Here, Zimmer Biomet consented to jurisdiction in Mexico through its vice president and
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`associated general counsel. See Associacao Brasileira de Medicina de Grupo v. Stryker Corp., 891 F.3d 615,
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`621 (6th Cir. 2018) (declarations that one will accept service in alternative forum are legally binding);
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`see also Fischer, 777 F.3d at 867 (relying on declaration by defendant’s officer consenting to
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`jurisdiction). Zimmer Biomet says it won’t contest service of process in Mexico. To ensure Mexico
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`proves an adequate forum, the court may order Zimmer Biomet to consent to jurisdiction in
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`Mexico, accept service of process, and satisfy a final judgment rendered by a Mexican court. See In re
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`Factor VIII, 408 F. Supp.2d 569, 591 (N.D. Ill. 2006), aff’d, 484 F.3d at 957 (7th Cir. 2007).
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`3
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 4 of 14
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`IMSS concedes that Mexican courts are competent to hear complex commercial matters but
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`contests their availability nonetheless, though its analysis seems more aptly aimed at the forum’s
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`adequacy. IMSS relies on Mexican attorney Sergio Antonio Linares Pérez who says Mexican courts
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`historically haven’t held foreign parents of Mexican corporations liable based on their control of
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`subsidiaries in Mexico. Yet Mr. Pérez concedes that Mexican courts recognize consents to
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`jurisdiction. Because the Mexican courts would have jurisdiction over this matter and the parties are
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`amenable to process within Mexico following Zimmer Biomet’s consent, Mexican forums are
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`available.
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`A forum is “adequate” “when the parties will not be deprived of all remedies or treated
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`unfairly.” Kamel, 108 F.3d at 803. To find an alternative forum inadequate, the court must conclude
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`that “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is
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`no remedy at all.” Fischer, 777 F.3d at 867 (quoting Piper Aircraft, 454 U.S. at 254). An unfavorable
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`change in law alone doesn’t make a forum inadequate. In re Factor VIII, 484 F.3d at 956.
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`José Ramón Cossío Diaz, a former associate justice of the Mexico Supreme Court of Justice
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`and current professor of constitutional law at El Colegio de México, says Zimmer Biomet’s consent
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`will be upheld by Mexican courts and that IMSS, as a decentralized body of the Federal Public
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`Administration in Mexico, is subject to Mexico’s federal jurisdiction. Based on his reading of the
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`complaint, he says the executed contracts took place under the Law of Acquisitions, Leases and
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`Services of the Public Sector (Law of Acquisitions), and that Article 85 of such law says disputes will
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`be resolved by Mexico federal courts. Ultimately, he opines that “the claims filed by the IMSS
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`against Zimmer Biomet may have been filed, processed and properly resolved with the Mexican
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`competent federal authorities.” The court gives this opinion substantial weight in underscoring a
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`Mexican venue’s availability and adequacy. See Kamel, 108 F.3d at 803 (relying on expert affidavit
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`explaining that Saudi law recognizes consents).
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`4
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 5 of 14
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`Both the claims under Mexico’s Law of Acquisitions (count II) and breach of contract
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`(count III) are asserted under Mexican law, so any remedy would be available in Mexico. IMSS says
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`the remedy for fraud (count I) is the same under American and Mexican law. Justice Cossío Diaz
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`says Mexican courts are adequate: “In my opinion, the Mexican federal courts are qualified and
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`empowered to hear the claims for relief sought by the IMSS, both regarding the compliance with the
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`covenants and everything related to the corruption facts.” He says Mexican courts have the power to
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`provide relief under Articles 50 and 60 of the Law of Acquisitions, and that this law also grants
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`agencies the power to rescind contracts administratively when the provider breaches its obligations.
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`IMSS says the forum is inadequate because Mexican courts would be reluctant to hold
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`Zimmer Biomet accountable for its subsidiary’s acts, but the court doesn’t equate this type of
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`reluctance with inadequacy. Just because Mexican law or a Mexican court may prove more
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`circumspect about the claims here is a measure of the merits, a measure of standards or weight, not a
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`measure of whether the remedies would be so clearly inadequate such as to be no remedy at all. See,
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`e.g., Fischer, 777 F.3d at 861 (finding Hungarian courts adequate and saying “the relief need not be as
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`comprehensive or as favorable as a plaintiff might obtain in an American court”); In re Factor VIII,
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`484 F.3d at 956 (finding British forums adequate though they had less favorable standards of
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`causation). Indiana law would also present obstacles to recovery; for instance, IMSS would need to
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`pierce the corporate veil between Zimmer Biomet and its subsidiary or establishing overwhelming
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`control, but that hurdle wouldn’t suggest Indiana law must accordingly be viewed as inadequate.
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`In sum, as many other courts have held, a Mexican court here is an adequate forum. See, e.g.,
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`Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 933 (7th Cir. 2011); Vasquez v. Bridgestone/Firestone,
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`Inc., 325 F.3d 665, 672 (5th Cir. 2003) (“The fact that Mexico provides a wrongful death cause of
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`action, albeit with severe damage caps, makes the country an adequate forum.”); Gonzalez v. Chrysler
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`Corp., 301 F.3d 377, 383 (5th Cir. 2002) (“We . . . are unwilling to hold as a legal principle that
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 6 of 14
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`Mexico offers an inadequate forum simply because it does not make economic sense for [plaintiff]
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`to file this lawsuit in Mexico.”). This conclusion supports the case’s dismissal in favor of a Mexican
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`forum.
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`B.
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`The Private Interests of the Parties Favor Dismissal.
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`The court next weighs the private interests of the parties. Stroitelsvo, 589 F.3d at 424-25.
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`Courts weigh the following private interest factors: “(1) the relative ease of access to sources of
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`proof; (2) availability of compulsory process for attendance of unwilling, and the cost of obtaining
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`attendance of willing, witnesses; (3) possibility of view of premises, if view would be appropriate to
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`the action; (4) and all other practical problems that make trial of a case easy, expeditious and
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`inexpensive.” Clerides v. Boeing Co., 534 F.3d 623, 628 (7th Cir. 2008) (quoting Gilbert, 330 U.S. at
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`508).
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`Mexico has easier access to witnesses. More witnesses reside in Mexico than the United
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`States. IMSS is a Mexican agency, so its witnesses will be materially located in Mexico. IMSS alleges
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`that Biomet 3i was the historically bad actor, and Biomet 3i Mexico is in Mexico. IMSS says the
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`bribery scheme was carried out by unspecified “Mexican agents,” thus pointing to Mexico as the
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`better forum. IMSS says the bribes were paid to Mexican government officials who likewise reside in
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`Mexico. To be sure, there will be witnesses from the United States. Zimmer Biomet is an Indiana
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`corporation, and witnesses will likely include unnamed Zimmer Biomet personnel. But the number
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`of witnesses in Mexico dwarfs those here.
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`IMSS counters that Zimmer Biomet hasn’t provided names of specific witnesses in Mexico,
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`but Zimmer Biomet wasn’t required to do so. See Piper Aircraft, 454 U.S. at 258 (defendants need not
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`“submit affidavits identifying the witnesses they would call and the testimony these witnesses would
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`provide if the trial were held in the alternative forum. . . . Requiring extensive investigation would
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`6
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 7 of 14
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`defeat the purpose of their motion”). In the same vein, IMSS hasn’t identified any witnesses in
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`Indiana. The nature of the allegations here clarifies the scope of potential witnesses.
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`Similarly, the likely relevant documentary evidence favors a Mexican forum. The alleged
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`bribes were made to Mexican officials by Mexican agents, so any documentary evidence (if any exist
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`of such a scheme) is more likely in Mexico. IMSS’s and Biomet 3i’s documents are likewise in
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`Mexico. Much of the relevant documents and testimony will be in Spanish. See Fischer, 777 F.3d at
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`870 (“it seems obvious that otherwise heavy translation burdens will be greatly reduced if the case
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`were litigated in Hungary”). Transportation of this evidence here and translation would be
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`expensive. See Stroitelstvo, 589 F.3d at 425 (“transporting all of the evidence and witnesses to Chicago
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`would be unnecessarily expensive” and “[t]ranslating all of the Bulgarian discovery documents into
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`English for a U.S. court would also be costly”).
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`That said, the SEC and DOJ investigation reports of Zimmer Biomet in the English
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`language likely contain evidence that could be used in IMSS’s suit, though the reports seem fewer in
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`number and secondary in relevance to documentary evidence in Mexico specific to the alleged
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`bribery activity. The documents central to this dispute are the contracts in Spanish entered into
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`between IMSS and Biomet 3i Mexico, or the evidence concerning bribes for these medical device
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`sales. Mr. Pérez opines that discovery requests would be more quickly transported from Mexico to
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`the United States than vice versa given response times under the Hague Convention, but that
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`international exchange and burden are inherent prerequisites to discovery in this case whether
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`venued here or there.
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`IMSS says Zimmer Biomet is trying to avoid discovery because in Mexico parties are
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`required to utilize exclusively the evidence in their possession at the time of filing suit, whereas a
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`court here will give the parties the vehicle of discovery to develop more evidence. Arguments that
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`the United States provides more extensive discovery than alternative forums have been rejected in
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 8 of 14
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`the forum non conveniens analysis when the other forum is adequate. See, e.g., Piper Aircraft, 454 U.S. at
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`252 n.18 (noting that “discovery is more extensive in America than in foreign courts”); GoldenTree
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`Asset Mgmt. LP v. BNP Paribas S.A., 64 F. Supp.3d 1179, 1193 (N.D. Ill. 2014) (rejecting argument
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`that Germany provided inadequate forum because of Germany’s limitations on discovery).
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`Moreover, even IMSS recognizes that the judicial system in Mexico permits parties to use evidence
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`discovered after the complaint is filed, particularly when the plaintiff lacked knowledge it existed
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`before.
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`The ability to secure attendance of witnesses favors dismissal. The COVID-19 pandemic is
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`common to both Mexico and the United States, which may prevent voluntary testimony due to
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`travel restrictions. Accordingly, outside technological alternatives to in-person questioning, easing
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`the burdens of travel has greater importance, and Mexico is better suited for that than the United
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`States given the location of witnesses. Mexican courts likewise may compel live testimony from
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`witnesses located in Mexico, whereas the United States subpoena power is powerless for Mexican
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`citizens. Federal Rule of Civil Procedure 45(b)(2) authorizes subpoenas for witnesses located in the
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`United States, and 28 U.S.C. § 1783 authorizes service of subpoenas for United States nationals or
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`residents located in a foreign country. IMSS representatives, Biomet 3i employees, and Mexican
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`government officials who received bribes are unlikely to fall within the ambit of this otherwise facile
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`service system. Sure, issues may arise with witnesses traveling from the United States to Mexico; but
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`because most witnesses will be in Mexico, this proves the lesser concern. The costs of travel also will
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`likely be less if trial is in Mexico.
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`The court has weighed additional factors. IMSS’s claims are rooted in Mexican law, the
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`contract was between Mexican parties, and the injury took place in Mexico. Even here then, the case
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`will likely require knowledge and application of Mexican law. See Kamel, 108 F.3d at 805 (Indiana
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`8
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 9 of 14
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`uses “place of injury” for tort choice-of-law and a “most significant relationship” test for contract
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`choice-of-law). On balance, a Mexican court is better suited to apply such law.
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`IMSS argues that Zimmer Biomet is forum shopping and trying to delay trial and avoid
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`application of res judicata. See, e.g., Iragorri v. United Techs. Corp., 274 F.3d 65, 75 (2d Cir. 2001) (“Courts
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`should be mindful that, just as plaintiffs sometimes choose a forum for forum-shopping reasons,
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`defendants also may move for dismissal under the doctrine of forum non conveniens not because of
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`genuine concern with convenience but because of similar forum-shopping reasons.”). That said,
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`forum shopping “ordinarily should not enter into a trial court’s analysis of the private interests.”
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`Piper Aircraft, 454 U.S. at 252 n.19. Indeed, “[i]f the defendant is able to overcome the presumption
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`in favor of plaintiff by showing that trial in the chosen forum would be unnecessarily burdensome,
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`dismissal is appropriate—regardless of the fact that defendant may also be motivated by a desire to
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`obtain a more favorable forum.” Id. Accordingly, IMSS’s argument regarding Zimmer Biomet’s
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`forum shopping isn’t altogether persuasive here, given the overwhelming private interests that are
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`promoted by a Mexican venue.
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`IMSS says Zimmer Biomet wants to delay trial. See, e.g., Boosey & Hawkes Music Publishers, Ltd.
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`v. Walt Disney Co., 145 F.3d 481, 492 (2d Cir. 1998) (considering defendant’s motive to delay).
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`Attorney Pérez says Mexican courts are slower than United States courts in executing cases, and trial
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`in Mexico could take as many as 15 years; but he bases this estimate on his own experience without
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`the support of sound empirical research. Moreover, it seems soundly undercut by other authorities,
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`see DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 797-98, 801 (5th Cir. 2007) (discrediting
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`claim that defendant sought to move trial to Mexico for delay); see also ECF 17-1 ¶ 41 (conceding
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`that the average dispute in Mexico takes four years to resolve, including appeals), or by procedures
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`decidedly shorter than the federal system in the United States (e.g., appeal submission). It also
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`ignores that Mexico accepts and to some extent encourages alternative dispute resolution, so a case
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`may be resolved without a trial. Any delay from COVID-19 would occur in either country.
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`IMSS next says Zimmer Biomet wants to avoid application of res judicata regarding the SEC
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`cease-and-desist order and DOJ deferred prosecution agreement. To be sure, the SEC and DOJ
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`documents might be offered as evidence in Mexico, given Mexico’s evidence rules, but these
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`documents wouldn’t likely trigger res judicata rules here in the United States such that the parties have
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`truly lost any benefit merely because Mexico doesn’t recognize the doctrine at all, if correct. The
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`issue here is a specific breach of contract and fraud. The SEC and DOJ proceedings didn’t deal with
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`this specific breach of contract and fraud allegation.
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`That said, though the court views IMSS’s choice here favorably, particularly because it is
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`Zimmer Biomet’s home jurisdiction, see Shi v. New Mighty U.S. Trust, 918 F.3d 944, 950 (D.C. Cir.
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`2019); Stryker, 891 F.3d at 619; Reid-Walen v. Hansen, 933 F.2d 139, 1395 (8th Cir. 1991), the private
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`interest factors tilt strongly toward dismissal.
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`C.
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`The Public Interest Factors Favor Dismissal.
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`The court next considers the public interest factors. These factors include “(1) the
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`administrative difficulties stemming from court congestion; (2) the local interest in having localized
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`disputes decided at home; (3) the interest in having the trial of a diversity case in a forum that is at
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`home with the law that must govern the action; (4) the avoidance of unnecessary problems in
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`conflicts of laws or in the application of foreign law; and (5) the unfairness of burdening citizens in
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`an unrelated forum with jury duty.” Stroitelstvo, 589 F.3d at 425.
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`Administrative congestion remains a reality in either forum. That said, Mexican courts would
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`face a lesser burden in obtaining U.S. documents and translating them into Spanish than the
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`opposite, particularly because most evidence exists in Mexico. COVID-19 has made transportation
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`more difficult, though this is common in both forums, and both forums have slowed their judicial
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 11 of 14
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`operations in response. According to Mr. Pérez, this district has about one-third the caseload of its
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`Mexican counterpart, which based on cold statistics alone might suggest a more convenient forum
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`here but for the practical administration and conduct of discovery.
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`Furthermore, Mexico has a much greater interest in this litigation. IMSS, a Mexican
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`government agency, alleges violations of Mexican law from the sale of medical devices in Mexico
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`that bribes of Mexican customs officials facilitated. The contract at issue was formed in Mexico.
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`Mexican courts have an inherent interest in enforcing Mexican law, in hearing disputes regarding its
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`own government, and in hearing disputes regarding corruption of Mexican officials. Indeed, it would
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`be a rare case in which Mexico had any greater interest to hear and decide a case than this one.
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`To be sure, Zimmer Biomet is headquartered in Indiana and its so-alleged worldwide bribery
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`scheme was orchestrated here, but Indiana isn’t the real focus of this litigation. No person or entity
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`in Indiana is alleged to have been harmed. Though the United States has an interest in upholding
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`international law norms, see Fischer, 777 F.3d at 871, Mexico’s interest in enforcing its own law and
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`rooting out corruption in its own government is much greater. See, e.g., Stroitelstvo, 589 F.3d at 425
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`(“Bulgaria has an equal if not greater interest in guarding against the extortion of its own
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`businesses”).
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`Mexican law governs this dispute, with IMSS alleging violations of Mexico’s Law of
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`Acquisitions and breach of contract under Mexican law. The fraud claim likely requires application
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`of Mexican law.1 This favors dismissal. See, e.g., Fischer, 777 F.3d at 871 (“a Hungarian court would be
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`far better able to apply its own law than any United States court would be”); Abad, 563 F.3d at 671
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`(affirming dismissal in part because “an Argentine court is the more competent maker of Argentine
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`1
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`Indiana follows the lex loci delicti doctrine, applying the law of the place where the tort is committed. See Allen v.
`Great Am. Res. Ins. Co., 766 N.E.2d 1157, 1164 (Ind. 2002). A tort is said to occur “in the state where the last event
`necessary to make an actor liable for the alleged wrong takes place.” Id. The “last event” necessary to establish
`a fraud claim is injury, id. at 1164-65, and the injury here allegedly occurred in Mexico. So, on this preliminary
`record, the case would likely demand the application of Mexican law.
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`law”); U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 755 (7th Cir. 2008) (“a Japanese court is
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`more at home with Japanese law and Japanese firms than an American court would be”). This is
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`especially true when the foreign law is a civil law system—like Mexico’s—as opposed to the
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`common law system used here. See Fischer, 777 F.3d at 871 (“The application of foreign
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`law—particularly that of a civil law system—favors dismissal in favor of a Hungarian forum.”).
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`A jury here is highly attenuated from the incidents alleged in this litigation. Indeed, “[j]ury
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`duty is a burden that ought not to be imposed upon the people of a community which has no
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`relation to the litigation.” Am. Dredging Co., 510 U.S. at 448 (quoting Gilbert, 330 U.S. at 508). The
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`only link of this litigation to this district is Zimmer Biomet’s headquarters here. There are much
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`stronger ties to Mexico. See U.S.O. Corp., 547 F.3d at 755 (“the local interest is that of Japan; to
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`burden Americans with jury duty to resolve an intramural Japanese dispute would be gratuitous”).
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`The public interest factors thus overwhelmingly support this case’s dismissal in favor of a Mexican
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`venue.
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`D.
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`The United Nations Convention Against Corruption Treaty Does Not Supersede the Forum Non
`Conveniens Doctrine.
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`IMSS subverts the forum non conveniens doctrine by arguing that the United States and Mexico
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`signed the superseding United Nations Convention Against Corruption treaty. See United Nations
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`Convention Against Corruption (Dec. 9, 2003) (UNCAC).2 This treaty requires each signatory state
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`“in accordance with its domestic law” to “[t]ake such measures as may be necessary to permit
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`another State Party to initiate civil action in its courts to establish title to or ownership of property
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`acquired through the commission of an offence established in accordance with this Convention” or
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`“to order those who have committed offences established in accordance with this Convention to pay
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`compensation or damages to another State Party that has been harmed by such offences.” Id. Art.
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`53.
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`2 See https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf.
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 13 of 14
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`No court has addressed whether UNCAC precludes the operation of forum non conveniens. The
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`court first examines the treaty’s text in context. See Abbott v. Abbott, 560 U.S. 1, 10 (2010). IMSS is a
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`“State Party,” this is a “civil action,” IMSS is seeking to establish ownership of property, and IMSS
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`says Zimmer Biomet acquired property through bribery—a corrupt act under UNCAC. That said,
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`by its express terms, the treaty makes IMSS’s right to bring suit subject to U.S. “domestic law.”
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`Nothing within its plain language seeks to accomplish the opposite goal of undoing U.S. domestic
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`law in such a way as to secure in every case the right to bring suit here, not least in a case where
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`Mexico has a manifest interest in protecting its government from alleged foreign corporate
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`influence.
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`In addition, UNCAC only requires United States courts to “take such measures as may be
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`necessary” for another state party to initiate an action. IMSS had that right and exercised that
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`right—consistent with UNCAC. IMSS filed suit here, and the court heard its concerns initially to
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`determine the proper venue for further litigation. In applying forum non conveniens, the court hasn’t
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`interfered with IMSS’s ability to commence an action here.
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`The forum non conveniens analysis requires that there be an alternative forum before dismissal,
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`ensuring that any aggrieved party has a potential remedy for an alleged violation. Safeguards ensure
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`IMSS has a forum to bring suit. In other words, it isn’t “necessary” for Mexico to bring suit here to
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`enforce its rights.
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`Courts interpreting similar treaty provisions have held likewise. See, e.g., In re Bridgestone, 190
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`F. Supp.2d 1125, 1136 (S.D. Ind. 2002) (treaty between U.S. and Venezuela required only that
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`“expatriate U.S. nationals and treaty nationals residing in their home countries are entitled to the
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`same deference on their choice of forum, with the consideration that suing in a United States forum
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`while residing in a foreign country is less likely to be convenient”), aff’d 344 F.3d 648, 653 (7th Cir.
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`2003) (calling analysis “reasoned and responsible”); see also Blanco v. Blanco, 997 F.2d 974, 981 (2d Cir.
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`USDC IN/ND case 3:20-cv-00099-DRL-MGG document 20 filed 01/05/21 page 14 of 14
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`1993) (“when a treaty with a foreign nation accords its nationals access to our courts equivalent to
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`that provided American citizens, identical forum non conveniens standards must be applied to such
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`nationals by American courts”). The court has followed UNCAC’s mandate here; still, forum non
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`conveniens remains a proper subject for deliberation under federal law. Deciding that issue protects
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`“U.S. courts from a glut of foreign cases while continuing to respect our treaty obligations.” In re
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`Bridgestone, 190 F. Supp.2d at 1136.
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`CONCLUSION
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`With Zimmer Biomet’s consent, Mexico proves an available and adequate alternative forum
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`for this litigation, and both the private and public interest factors favor trial in Mexico. Because the
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`court dismisses the action under forum non conveniens, the court doesn’t address Zimmer Biomet’s
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`arguments that IMSS’s complaint should be dismissed for failure to state a claim or failure to plead
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`with particularity.
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`Accordingly, the court GRANTS Zimmer Biomet’s motion to dismiss (ECF 13) under forum
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`non conveniens and, to ensure the availability of Mexico’s court and consistent with Zimmer Biomet’s
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`declaration, ORDERS Zimmer Biomet to agree to accept service in actions brought by IMSS arising
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`from this action in a Mexican court and not to contest jurisdiction and ORDERS Zimmer Biomet to
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`satisfy a final judgment rendered by a court of Mexico. With the case so dismissed, this order
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`terminates it.
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`SO ORDERED.
`January 5, 2021
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`s/ Damon R. Leichty
`Judge, United States District Court
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