Ganpat v. Eastern Pacific Shipping PTE. Ltd.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KHOLKAR VISHVESHWAR GANPAT, CIVIL DOCKET

Plaintiff

VERSUS NO. 18-13556

EASTERN PACIFIC SHIPPING, PTE. LTD, SECTION: “E” (4)

Defendant

ORDER AND REASONS

Before the Court is a Motion for Preliminary and Permanent Injunction, filed by

Plaintiff Kholkar Vishveshwar Ganpat (“Plaintiff”).1 Defendant Eastern Pacific Shipping,

PTE. LTD (“Eastern Pacific Singapore”) filed an opposition.2

On January 31, 2022, the Court issued a scheduling order setting a hearing on

Plaintiff’s motion for preliminary and permanent injunction and setting a briefing

schedule for the parties to file pre-hearing memoranda.3 On March 16, 2022, Plaintiff

filed a pre-hearing memorandum in support of his request for injunction.4 On March 21,

2022, Eastern Pacific Singapore filed a pre-hearing memorandum in opposition to

Plaintiff’s request for injunction. 5 On March 24, 2022, Plaintiff filed a reply

memorandum.6

On March 28, 2022, the Court held a hearing on Plaintiff’s motion for preliminary

and permanent injunction. Plaintiff testified at the hearing.

1 R. Doc. 199.

2 R. Doc. 218.

3 R. Doc. 227.

4 R. Doc. 251.

5 R. Doc. 253.

6 R. Doc. 259.

BACKGROUND

Plaintiff is a resident and citizen of the Republic of India.7 Eastern Pacific

Singapore is an international ship management company incorporated under the laws of

the Republic of Singapore with its principal place of business in the Republic of

Singapore.8

On December 12, 2018, Plaintiff filed suit in this Court, bringing claims against

Eastern Pacific Singapore under the Jones Act, general maritime law, and for breach of

the contractual duty to provide disability benefits in accordance with the “TCC” Collective

Agreement.9 Plaintiff alleges he sustained injuries as a result of tortious conduct that

occurred in Savannah, Georgia.10 Plaintiff alleges he contracted malaria while working as

a crew member aboard the M/V STARGATE, which Plaintiff alleges is managed and

operated by Eastern Pacific Singapore.11 Specifically, Plaintiff alleges Eastern Pacific

Singapore (1) failed to provision the M/V STARGATE with sufficient anti-malaria

medication while the M/V STARGATE was docked at port in Savannah, Georgia, and (2)

failed to administer prophylactic anti-malaria medication to the crew of the M/V

STARGATE before the vessel arrived in Gabon, a region with a high risk of contracting

malaria.12 Plaintiff further alleges he began to suffer malaria symptoms on the high seas

as the vessel sailed from Gabon to Brazil,13 was hospitalized and treated for malaria in Rio

7 R. Doc. 212 at p. 1.

8 R. Doc. 1 at ¶ 2. See also R. Doc. 204-1 at p. 1, 18; R. Doc. 204-2 at ¶¶ 2, 4.

9 R. Doc. 1.

10 See generally id.

11 Id. at ¶¶ 6, 32.

12 Id. at ¶¶ 17—10, 25–28.

13 Id. at ¶ 30.

de Janeiro, Brazil,14 and was subsequently repatriated to India where he received further

medical treatment for malaria and complications arising therefrom.15

Eastern Pacific Singapore waived its objections to personal jurisdiction and venue

in this Court.16 Over a period of approximately two and a half years, Plaintiff attempted

multiple times to perfect service upon Eastern Pacific Singapore. Eastern Pacific

Singapore did not accept service and, instead, filed several motions to dismiss Plaintiff’s

claims under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process.17

On August 10, 2021, the Court entered an Order and Reasons holding that Plaintiff had

perfected service upon Eastern Pacific Singapore at its headquarters in Singapore.18

On August 12, 2021, Plaintiff filed a motion for leave to file his first supplemental

and amended complaint for damages (“amended complaint”) against Eastern Pacific

Singapore.19 Plaintiff’s amended complaint retains his Jones Act, general maritime law,

and contractual disability benefits claims set forth in the original complaint, and adds an

additional claim against Eastern Pacific Singapore for “an intentional general maritime

law tort.”20 Plaintiff’s new claim arises out of a lawsuit filed in India against Plaintiff by

Eastern Pacific Singapore and Eastern Pacific Shipping (India) Private Limited (“EPS

India”), a subsidiary 99.99% owned by Eastern Pacific Singapore.21 Plaintiff alleges the

actions of Eastern Pacific Singapore in the Indian court amount to “deliberate and

14 Id. at ¶ 39.

15 Id. at ¶ 45.

16 R. Docs. 68 and 122.

17 See R. Docs. 16, 69, 187.

18 See R. Doc. 196.

19 R. Doc. 198.

20 R. Doc. 212 at ¶¶ 101–102.

21 R. Doc. 142-2 at p. 5–6, at ¶ 1–2.

malicious efforts to intimidate [Plaintiff] from seeking legal redress in this Court,” and

that these actions constitute an intentional general maritime law tort.22

Fifteen months after Plaintiff filed suit in this Court, Eastern Pacific Singapore and

EPS India filed suit against Plaintiff in South Goa, India on March 2, 2020, for, among

other things, an “injunction restraining vexatious and oppressive foreign legal

proceedings.”23 Specifically, Eastern Pacific Singapore and EPS India applied for a

temporary injunction seeking ex parte interim relief in the form of a temporary antisuit

injunction to restrain Plaintiff from prosecuting this lawsuit in the United States.24

Eastern Pacific Singapore and EPS India also seek a permanent prohibitory injunction in

the nature of an antisuit injunction against Plaintiff, restraining him permanently from

taking any steps in the United States proceedings.25

In their application for injunctive relief, Eastern Pacific Singapore and EPS India

submit that the US Proceedings have been instituted with an intention to

circumvent the pre-existing contractual relationship between Plaintiff No.

1/EPS India and the Defendant [Kholkar Vishveshwar Ganpat] pursuant to

the Mumbai Employment Agreement which expressly quantifies the

maximum compensation payable to the Defendant [Kholkar Vishveshwar

Ganpat] in the event of 100% disability resulting from an injury sustained

on board the Vessel.26

The Court notes Eastern Pacific Singapore and EPS India allege in their filings in the

Indian proceedings that there is a “contractual relationship” between Plaintiff and EPS

India pursuant to the “Mumbai Employment Agreement.”27 In reality, however, the

22 R. Doc. 212 at ¶ 101. Hereinafter, the Court will refer to this claim as Plaintiff’s “malicious prosecution”

claim, for the sake of brevity.

23 R. Doc. 142-2 at p. 1.

24 See generally id.

25 Id. at p. 7.

26 Id. at p. 23, at ¶ 15.

27 Id.

parties to that agreement are Plaintiff and Ventnor Navigation, Inc. (“Ventnor”).28 EPS

India signed the agreement on behalf of Ventnor as agent for Ventnor.29

On March 7, 2020, the court in South Goa, India issued an order temporarily

restraining Plaintiff from “continuing/prosecuting/taking steps and/or any further steps

in the proceedings before the United States District Court, Eastern District of Louisiana,

New Orleans” pending the hearing and the disposal of the application for temporary

injunction.30 The Indian court’s order granting the temporary antisuit injunction notes

that

[t]he plaintiffs [Eastern Pacific Singapore and EPS India] have instituted

the instant suit for a decree of declaration that the convenience of the parties

and ends of justice would be better served if any trial and adjudication

relating to liability and quantum of compensation payable to the defendant

[Kholkar Vishveshwar Ganpat] in relation to his purported disability/injury

sustained by having contracted malaria working on board MV Stargate IMO

No. 9493212 (Vessel) pursuant to Searer Employment Agreement dated

27.12.2016 signed in Mumbai is held before this Court [in South Goa, India]

rather than the United States District Court, Eastern District of Louisiana,

New Orleans.31

In this Court, on August 18, 2021, Plaintiff filed the instant motion for preliminary

and permanent injunction. 32 Plaintiff asks this Court to issue a preliminary and

permanent injunction “enjoining the prosecution by Eastern Pacific [Singapore] and its

affiliates and subsidiaries,” namely, EPS India, “of the litigation now pending in the

District Court of South Goa, Margao, Republic of India.”33 Plaintiff argues a foreign

antisuit injunction is appropriate “because the Indian Court proceedings seek to pass

upon identical liability and damage claims which were asserted here on December 12,

28 R. Doc. 215-1 at p. 1.

29 R. Doc. 204-2at ¶¶ 10–12.

30 R. Doc. 142-1 at p. 11, at ¶ 24.

31 Id. at p. 2.

32 R. Doc. 199.

33 R. Doc. 199-1 at p. 1.

2018, about fifteen months before EPS filed its Indian lawsuit on March 2, 2020.”34

Plaintiff argues that, in addition to directly challenging the jurisdiction and orders of this

Court, the foreign litigation places him at risk of imprisonment and of having his personal

financial assets seized. 35 Plaintiff argues Eastern Pacific Singapore is using the

proceedings in India as a means “to thwart this Court, to compel Plaintiff to abandon his

rights under the Jones Act, and to force him to dismiss the above-captioned matter or go

to jail.”36 Plaintiff characterizes the Indian lawsuit as an attempt to “ram a paltry foreign

settlement down [his] throat,” and to ultimately force Plaintiff to “dismiss his U.S. lawsuit

because it was settled in India.”37 Plaintiff argues “[t]he Indian Court pleadings touch

upon all of the issues raised in Plaintiff’s complaint” filed in this Court.38

At the injunction hearing held in this Court on March 28, 2022, Plaintiff testified

a bailiff came to his home in India three or four times attempting to serve him with papers

connected to the lawsuit in India. Plaintiff testified the first time the bailiff came to his

house was in March of 2020. Plaintiff testified he refused to accept the papers. Plaintiff

further testified an EPS lawyer came to his house and told Plaintiff his case in the United

States was “stopped,” and that the case was to continue in Goa, India. The EPS lawyer

attempted to provide Plaintiff with papers showing his suit in the United States was

“stopped,” but Plaintiff refused to accept the papers. Plaintiff testified he was told if he

did not accept the papers the court in India would issue an arrest warrant and arrest him.

Plaintiff testified that on or about March 16, 2021, the EPS lawyer, the bailiff, and police

officers came to Plaintiff’s house and informed him an arrest warrant was issued by the

34 Id. at p. 2.

35 Id.

36 Id. at p. 12–13.

37 Id. at p. 13.

38 Id.

court in India. Plaintiff testified he was taken into custody that day in front of his wife and

child. Plaintiff testified the police officer took him to the South Goa, India court where he

was brought in front of a judge. Plaintiff testified there were three or four lawyers there

on behalf of EPS and that he did not have a lawyer there to represent him. Plaintiff further

testified the judge asked him why he would not accept the papers and told Plaintiff to sign

the papers or hire a lawyer, and that, if he refused, he would go to jail. After that, Plaintiff

testified the judge instructed one of the EPS lawyers to take Plaintiff outside the

courtroom and advise him. Plaintiff testified the EPS lawyer told him there was no reason

for this case to go forward in the United States, and that the case could be resolved in

India, and they could possibly reach a settlement. Plaintiff testified when he and the EPS

lawyer returned to the courtroom, the EPS lawyer told the judge Plaintiff did not want to

cooperate and that he did not want to drop his lawsuit in the United States. Plaintiff

further testified that the EPS lawyer told the judge Plaintiff did not want bail or a bond,

despite the fact that Plaintiff never discussed bail or a bond with anyone and did not

understand what those terms meant. Plaintiff testified the judge told him three or four

additional times to sign the papers, take a bond, or hire a lawyer, but Plaintiff refused and

the judge informed Plaintiff she was sending him to jail.

Plaintiff testified he was taken to a holding cell for some time and then transported

to a prison, which Plaintiff characterized as a prison for murderers and rapists. Plaintiff

testified he was strip searched upon arrival at the prison and was thereafter transferred

to the I-block, which is the part of the prison used to incarcerate criminal defendants.

Plaintiff testified he was placed in a four-by-five-meter cell with five other inmates.

Plaintiff testified the following morning he was transported from the prison back

to the courthouse in South Goa, India. Plaintiff testified he was brought back before the

same judge who sent him to jail the day before and that he asked her for a bond, and she

told him he lost his chance at a bond and that he needed to hire a lawyer to obtain bail.

Plaintiff testified the judge gave him a short time to find a lawyer, and that he eventually

found one. Plaintiff testified his lawyer informed the judge he was going to apply for bail.

Plaintiff testified that because of the legal proceedings in India he is afraid he will

be arrested again, and that he has fear and apprehension about testifying in open court

because of what could happen to him in India. Plaintiff testified he has been to court

eleven or twelve times in India, and that he hired an attorney to represent him in the

proceedings in India. Plaintiff testified the EPS lawyers are asking the court in India to

enforce 16 counts of contempt against him in connection with the proceedings in India.

Plaintiff testified he has received threats of being sent back to jail in India if he does not

drop his case in the United States. Plaintiff testified EPS is asking the Indian court to hold

him in contempt and send him back to jail, and that EPS is threatening his freedom and

his safety, threatening to separate him from his wife and child, and threatening to seize

his property.

LEGAL STANDARD

Ordinarily, to obtain a preliminary injunction, a movant must demonstrate: (1) a

substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm

if the injunction is not granted; (3) the threatened injury outweighs any potential harm to

the non-movant; and (4) the injunction will not undermine the public interest.39 In most

situations, for a court to grant a permanent injunction, a plaintiff must show actual

success on the merits, in addition to demonstrating the other three factors.40

39 Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).

40 See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987).

On the other hand, “[a] foreign antisuit injunction is a special application of [the

general] injunction rules,”41 and the “suitability of such relief ultimately depends on

considerations unique to antisuit injunctions.”42 “It is well established that ‘federal courts

have the power to enjoin persons subject to their jurisdiction from prosecuting foreign

suits.’”43 The district court’s decision to grant injunctive relief is reviewed for abuse of

discretion.44

A court deciding whether to issue a foreign antisuit injunction must “balance

domestic judicial interests against concerns of international comity.”45 In determining

whether such a foreign antisuit injunction is necessary, the court “weigh[s] the need to

prevent vexatious or oppressive litigation and to protect the court’s jurisdiction against

the need to defer to principles of international comity.”46 The Fifth Circuit has adopted

an approach to antisuit injunctions which “emphasize[s] the need to prevent foreign or

vexatious litigation,” and rejects the approach employed by some other circuits which

emphasizes principles of comity over other considerations.47

In the Fifth Circuit, antisuit injunctions have been granted when the foreign

litigation would: (1) frustrate a policy of the forum issuing the injunction; (2) be vexatious

or oppressive; (3) threaten the issuing court's in rem or quasi in rem jurisdiction; or (4)

cause prejudice or offend other equitable principles.48

41 MWK Recruiting Inc. v. Jowers, 833 F. App'x 560, 562 (5th Cir. 2020) (citing Karaha Bodas Co. v.

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 364 (5th Cir. 2003), for the

proposition that a foreign antisuit injunction is a “particular subspecies of preliminary injunction.”).

42 Karaha Bodas Co., 335 F.3d at 364.

43 Id. (quoting Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996)).

44 Kaepa, Inc., 76 F.3d at 626.

45 Karaha Bodas Co., 335 F.3d at 366.

46 Id.

47 Kaepa, Inc. 76 F.3d at 627.

48 In re Unterweser Reederei, Gmbh, 428 F.2d 888, 890 (5th Cir. 1970), on reh'g en banc sub nom. In the

Matter of the Complaint of Unterweser Reederei, GmbH, 446 F.2d 907 (5th Cir. 1971), rev’d and vacated

on other grounds sub nom. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

Over the past fifty years or so, the Fifth Circuit has addressed the propriety of

antisuit injunctions on several occasions. In In re Unterweser Reederei, Gmbh, the Fifth

Circuit reviewed the district court’s order granting an antisuit injunction against a vessel

owner in a limitation of liability action, thereby restraining the vessel owner from

proceeding with litigation concerning the same subject matter in an English court.49

Unterweser Reederei, Gmbh, (“Unterweser”) entered a contract of towage with Zapata

Off-Shore Company (“Zapata”) which called for Unterweser’s tug, the Breman, to tow

Zapata’s drilling barge from Venice, Louisiana to Italy.50 While the towage was underway

in the Gulf of Mexico, Zapata’s drilling barge was damaged.51 Thereafter, Zapata filed a

complaint in admiralty in federal court against Unterweser and the tug, arrested the tug,

and served a copy of its complaint upon the tug’s master.52 Unterweser filed a motion

asking the district court to dismiss Zapata’s complaint or stay further prosecution of the

action, but the district court denied the motion.53 Subsequently, Unterweser initiated suit

against Zapata in England, claiming monies due under the contract of towage.54

Thereafter, Unterweser filed a complaint in federal district court seeking exoneration

from or limitation of liability, and Zapata filed its claim in the limitation action, asserting

the same causes of action as in its original federal court action.55 In the limitation action,

Unterweser filed an objection to Zapata’s claim and also filed a counterclaim against

Zapata, asserting the same claims as in the English action.56

49 See generally id.

50 Id. at 889.

51 Id.

52 Id.

53 Id.

54 Id. at 890.

55 Id.

56 Id.

Zapata filed a motion for an antisuit injunction in the limitation action, asking the

district court to restrain Unterweser from continuing with its suit in England.57 The

district court granted the motion for antisuit injunction, and Unterweser appealed.58 In

granting the motion, the district court explained that, because suit was initially filed in

the district court, and because the district court has jurisdiction over the parties and the

subject matter, “[t]he proposition that the case should at the same time be prosecuted in

another forum is not well received.”59 The district court further held that allowing the

same action to be prosecuted simultaneously in a foreign country would cause inequitable

hardship and would tend to frustrate and delay the speedy and efficient determination of

the cause in the district court.60 On appeal, the Fifth Circuit—observing that courts have

the power to enjoin parties properly before it from litigating in another court—held that

“[i]t was within the court’s discretion to determine, as it did, that allowing simultaneous

prosecution of the same action in a foreign forum thousands of miles away would result

in inequitable hardship and tend to frustrate and delay the speedy and efficient

determination of the cause.”61

One year later, in Bethell v. Peace, 62 the Fifth Circuit “reemphasized the

vexatiousness of parallel proceedings by approving the lower court’s injunction.”63 In

57 Id.

58 Id.

59 In re Unterweser Reederei, Gmbh, 296 F. Supp. 733, 735 (M.D. Fla. 1969), aff'd, 428 F.2d 888 (5th Cir.

1970), on reh'g en banc sub nom. In the Matter of the Complaint of Unterweser Reederei, GmbH, 446 F.2d

907 (5th Cir. 1971), vacated on other grounds sub nom. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1

(1972).

60 Id.

61 In re Unterweser Reederei, Gmbh, 428 F.2d at 896. The Supreme Court granted a writ of certiorari and

vacated and reversed the decision of the Fifth Circuit, holding that a forum selection clause in the contract

of towage providing for the litigation of any dispute under the contract to take place before the High Court

of Justice in London, England, was valid and binding on the parties. See M/S Bremen v. Zapata Off-Shore

Co., 407 U.S. 1 (1972).

62 441 F.2d 495 (5th Cir. 1971).

63 Steven R. Swanson, The Vexatiousness of A Vexation Rule: International Comity and Antisuit

Injunctions, 30 GEO. WASH. J. INT'L L. & ECON. 1, 25 (1996).

Bethell, seven individuals co-owned land in the Bahamas.64 Veronica Peace, a real estate

broker in Florida, induced six of the seven co-owners to sign a contract to sell the

Bahamian real estate to her.65 In November 1967, Peace filed two lawsuits in the

Bahamas, a quiet title action and an action for specific enforcement of the contract.66

Edward Bethell, a successor in title to one of the six co-owners who signed the contract,

filed suit in federal court seeking a declaration that the contract was invalid, damages

based on Peace’s fraudulent practices, and an injunction against Peace prosecuting her

lawsuits in the Bahamas.67 The district court granted Bethell’s partial motion for

summary judgment that the contract was invalid, and granted the antisuit injunction

against Peace.68 Issues relating to fraud and breach of a confidential relationship

remained pending and were set to be resolved at trial.69 Peace appealed the district court’s

order, alleging, among other things, that the district court erred in enjoining her from

prosecuting her lawsuits in the Bahamas.70 The Fifth Circuit, noting that in “certain

circumstances it is proper for courts of equity to enjoin parties from prosecuting claims

before courts of another jurisdiction,” held that because the district court found the

contract invalid on its face, the district court acted within its discretion in relieving Bethell

from the “expense and vexation of having to litigate in a foreign court,” and that the

district court “could properly enjoin [Peace] from future harassment through litigation

based on a contract that was inoperative.”71

64 441 F.2d at 496.

65 Id.

66 Id.

67 Id.

68 Id.

69 Id.

70 Id.

71 Id. at 498.

In Kaepa, Inc. v. Achilles Corp., the Fifth Circuit again affirmed the lower court’s

grant of an antisuit injunction.72 A United States company, Kaepa, Inc., entered into an

exclusive distributorship agreement with Achilles Corporation, a Japanese entity,

pursuant to which Achilles was to market Kaepa’s products in Japan. 73 The

distributorship agreement contained a choice of law provision calling for the application

of Texas law, and a forum selection clause specifying that litigation concerning the

contract was to take place in Texas.74 In July 1994, Kaepa sued Achilles in Texas state

court, alleging breach of contract, fraudulent inducement, and negligent

misrepresentation.75 Achilles removed the action to federal court.76 In February 1995,

Achilles filed suit against Kaepa in Japan, “alleging mirror-image claims: (1) fraud by

Kapea to induce Achilles to enter into the distributorship agreement, and (2) breach of

contract by Kaepa.”77 Kaepa filed a motion in the district court, asking the court to enjoin

Achilles from prosecuting its claims in Japan, and the district court granted the motion,

ordering Achilles to refrain from litigating the Japanese action and to file its

counterclaims in the federal district court.78 Achilles appealed the grant of the antisuit

injunction, arguing primarily that the district court erred in not giving proper deference

to principles of international comity.79 On appeal, the Fifth Circuit explained that in

Unterweser and Bethell, the court, focusing on the need to prevent vexatious and

oppressive foreign litigation,

72 76 F.3d 624 (5th Cir. 1996).

73 Id. at 625–626.

74 Id.

75 Id. at 626.

76 Id.

77 Id.

78 Id.

79 Id.

concluded that a district court does not abuse its discretion by issuing an

antisuit injunction when it has determined that allowing simultaneous

prosecution of the same action in a foreign forum thousands of miles away

would result in inequitable hardship and tend to frustrate and delay the

speedy and efficient determination of the cause.80

The Fifth Circuit in Kapea distinguished its approach from that taken by other circuits

which “have employed a standard that elevates principles of international comity to the

virtual exclusion of essentially all other considerations.”81 The Fifth Circuit declined “to

require a district court to genuflect before a vague and omnipotent notion of comity every

time that it must decide whether to enjoin a foreign action.”82 The Fifth Circuit explained

that, while the standard espoused in Unterweser and Bethell focuses on “the potentially

vexatious nature of the foreign litigation,” the standard does not exclude considerations

of comity.83 Turning to the circumstances of the case before it, the Fifth Circuit concluded

that it could not be said that the lower court’s antisuit injunction tramples on notions of

comity, or threatens relations between the United States and Japan, for two reasons.84

First, there were no public international issues involved in the case before it, which

involved a private contractual dispute between private parties.85 Second, the case had

“long and firmly been ensconced within the confines of the United States judicial

system.”86 The Fifth Circuit further concluded that the prosecution of the lawsuit in Japan

would result in an absurd duplication of effort, vexation, and unwarranted inconvenience

and expense.87

80 Id. at 627.

81 Id.

82 Id.

83 Id. (internal quotations omitted).

84 Id.

85 Id.

86 Id.

87 Id. In Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Nebara, the Fifth Circuit

reversed the district court’s order granting the plaintiff’s motion for foreign antisuit injunction. 335 F.3d

357 (5th Cir. 2003). In Karaha Bodas Co., the Fifth Circuit based its decision on “the structure and purpose

In MWK Recruiting Inc. v. Jowers, MWK Recruiting, Inc., Robert Kinney, Kinney

Recruiting Limited, Michelle Kinney, Recruiting Parties GP, Inc., Kinney Recruiting LLC,

and Counsel Unlimited LLC (collectively, the “MWK parties”) sued Evan Jowers

(“Jowers”) in Texas state court for misappropriation of trade secrets, among other claims,

in connection with his former position as an employee of a predecessor entity of MWK

Recruiting, Inc.88 Jowers removed the action to federal court.89 Jowers thereafter sued

his former employer and its principal, Kinney Recruiting Ltd., H.K. and Robert Kinney

for defamation in Hong Kong.90 In response to Jowers’s Hong Kong lawsuit, the MWK

parties filed a motion for a foreign antisuit injunction and the district court granted the

motion.91 The Fifth Circuit, in an unpublished opinion, reversed the district court’s order

granting the antisuit injunction.92 The Fifth Circuit confirmed that the test set forth in

Kaepa governs whether a court may issue a foreign antisuit injunction.93 Specifically, the

court stated that

[i]t is well established that federal courts are empowered to enjoin persons

subject to their jurisdiction from prosecuting foreign suits. Generally, to

obtain a preliminary injunction, a movant must demonstrate: (1) a

substantial likelihood of success on the merits; (2) a substantial threat of

irreparable harm if the injunction is not granted; (3) that the threatened

injury outweighs any potential harm to the non-movant; and (4) that the

injunction will not undermine the public interest. For a court to grant a

permanent injunction, a plaintiff must succeed on the merits, in addition to

demonstrating the other three factors. Injunctive relief is considered an

extraordinary remedy, to be granted only when the movant has clearly

carried the burden of persuasion on all four requirements.

of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards,” which,

among other things, “necessarily envisions multiple proceedings that address the same substantive

challenges to an arbitral award.” Id. at 359–360, 367.

88 MWK Recruiting, Inc. v. Jowers, No. 1:18-CV-444-RP, 2019 WL 5927288, at *1 (W.D. Tex. Nov. 12,

2019), modified, No. 1:18-CV-444-RP, 2019 WL 7759522 (W.D. Tex. Dec. 11, 2019), vacated and remanded,

833 F. App'x 560 (5th Cir. 2020).

89 Id. at *6.

90 Id. at *1.

91 Id.

92 833 F. App'x at 561.

93 Id. at 562.

A foreign antisuit injunction is a special application of these injunction

rules. Thus, the suitability of such relief ultimately depends on

considerations unique to antisuit injunctions. The Fifth Circuit has adopted

a test that weighs the need to prevent vexatious or oppressive litigation and

to protect the court's jurisdiction against the need to defer to principles of

international comity. An injunction against the prosecution of a foreign

lawsuit may be appropriate when the foreign litigation would: (1) frustrate

a policy of the forum issuing the injunction; (2) be vexatious or oppressive;

(3) threaten the issuing court's in rem or quasi in rem jurisdiction; or (4)

cause prejudice or offend other equitable principles. In applying the test,

this court has rejected the approach taken by some other circuits, which

elevates principles of international comity to the virtual exclusion of

essentially all other considerations. Instead, the Fifth Circuit has noted that

notions of comity do not wholly dominate the analysis to the exclusion of

these other concerns.

To determine whether proceedings in another forum constitute vexatious

or oppressive litigation that threatens the court's jurisdiction, the domestic

court considers whether the following interrelated factors are present: (1)

inequitable hardship resulting from the foreign suit; (2) the foreign suit's

ability to frustrate and delay the speedy and efficient determination of the

cause; and (3) the extent to which the foreign suit is duplicative of the

litigation in the United States.94

In light of the Fifth Circuit precedent set forth above, the Court must now

determine whether Plaintiff has demonstrated the factors specific to antisuit injunctions

weigh in favor of granting an injunction in this case.

LAW AND ANALYSIS

At the outset, because “federal courts have the power to enjoin persons subject to

their jurisdiction from prosecuting foreign suits,” the Court briefly address personal

jurisdiction. During a telephone status conference on April 18, 2019, Eastern Pacific

Singapore’s counsel expressly withdrew its objections to personal jurisdiction under

Federal Rule of Civil Procedure 12(b)(2).95 As a result, the Court has personal jurisdiction

94 Id. (internal quotations and citations omitted).

95 R. Doc. 68.

over Eastern Pacific Singapore. Turning to the merits of the instant case, Plaintiff argues

the lawsuit in India is vexatious and oppressive litigation that threatens this Court's

jurisdiction.

The lawsuit in India constitutes vexatious and oppressive litigation that

threatens this Court’s jurisdiction.

The Fifth Circuit has identified three interrelated factors showing that foreign

litigation is vexatious or oppressive: (1) inequitable hardship resulting from the foreign

suit; (2) the foreign suit’s ability to frustrate and delay the speedy and efficient

determination of the cause; and (3) the extent to which the foreign suit is duplicative of

the litigation in the United States.96

With respect to the first factor, this Court has personal jurisdiction over Eastern

Pacific Singapore and subject matter jurisdiction over this dispute. The Court finds it

would “entail an absurd duplication of effort and would result in unwarranted

inconvenience, expense, and vexation”97 to require that the dispute be litigated in two

courts thousands of miles apart. The Court has the power to restrain the parties before it

from litigating the same matters elsewhere in order to protect its jurisdiction. 98

Furthermore, the Court has already determined the balance of convenience weighs in

favor of litigation in this forum,99 and the Court has the power to protect Plaintiff from

96 Karaha Bodas Co., 335 F.3d at 366.

97 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir. 1996).

98 In re Unterweser Reederei, Gmbh, 296 F. Supp. 733, 735 (M.D. Fla. 1969), aff'd, 428 F.2d 888 (5th Cir.

1970), on reh'g en banc sub nom. In the Matter of the Complaint of Unterweser Reederei, GmbH, 446 F.2d

907 (5th Cir. 1971), vacated on other grounds sub nom. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1

(1972). See also Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 927 (D.C. Cir. 1984)

(stating that “[c]ourts have a duty to protect their legitimately conferred jurisdiction to the extent necessary

to provide full justice to litigants. Thus, when the action of a litigant in another forum threatens to paralyze

the jurisdiction of the court, the court may consider the effectiveness and propriety of issuing an injunction

against the litigant's participation in the foreign proceedings.”)

99 See the Court’s January 25, 2022 Order and Reasons denying Eastern Pacific Shipping’s motion to

dismiss for forum non conveniens, at R. Doc. 221.

the expense and burden concomitant to prosecuting the same action in the courts of two

countries thousands of miles apart.100

Furthermore, unlike the plaintiff in Karaha Bodas, Plaintiff has not initiated

foreign proceedings related to this dispute.101 “Such voluntary invocation of a foreign

forum, which is absent here, would militate against a finding that litigating a foreign

action amounts to an inequitable hardship.”102 Far from voluntarily invoking a foreign

forum, Plaintiff not only filed his claims in this Court, he has refused to bring his claims

before the Indian court and has not willingly participated in the Indian proceedings.

Eastern Pacific Singapore’s action in suing Plaintiff in India was taken in direct response

to Plaintiff filing this case here. Eastern Pacific Singapore’s stratagem “smacks of

cynicism, harassment, and delay.”103 The Court finds that the suit in India has caused,

and threatens to continue to cause, inequitable hardship to Plaintiff.104

Turning to the second factor the Indian lawsuit has a real ability to frustrate and

delay the speedy and efficient determination of the cause in this Court.105 There is a

scheduling order in place and this matter is set for trial in November 2022.106 The antisuit

100 In re Unterweser Reederei, Gmbh, 428 F.2d 888, 896 (5th Cir. 1970).

101 Karaha Bodas Co., 335 F.3d at 368 (stating that “it is difficult to envision how court proceedings in

Indonesia could amount to an inequitable hardship. Not only did KBC contract to arbitrate its dispute in a

foreign country (Switzerland), but it also instituted enforcement proceedings in several countries, including

the United States.”).

102 Commercializadora Portimex, S.A. de CV v. Zen-Noh Grain Corp., 373 F. Supp. 2d 645, 649 (E.D. La.

2005).

103 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).

104 Plaintiff’s testimony at the hearing detailed the injustice and hardship he has experienced as a result of

Eastern Pacific Singapore’s actions in the Indian proceedings. Plaintiff has already been jailed once for

violating the ex parte antisuit injunction, and Plaintiff faces a real possibility of being sent back to jail and

having his property seized, as Eastern Pacific Singapore seeks to have the Indian court enforce sixteen

counts of contempt against Plaintiff

105 See, e.g., Ericsson Inc. v. Samsung Elecs. Co., No. 2:20-CV-00380-JRG, 2021 WL 89980, at *6 (E.D.

Tex. Jan. 11, 2021) (concluding that proceedings in a court in China which had issued an antisuit injunction

against the plaintiff in the United States case “would frustrate and delay the speedy and efficient

determination of legitimate causes of action before this Court.”)

106 R. Doc. 228.

injunction issued by the Indian court against Plaintiff complicates his prosecution of the

action in this Court, and this action cannot continue without Plaintiff’s participation. With

Plaintiff hamstrung by an injunction from the Indian court, this Court’s ability to reach a

final determination is not only delayed but is seriously frustrated. Not only do the Indian

proceedings have a real potential to frustrate and delay the determination of the matter

in this Court, the Indian proceedings also threaten the integrity of this Court’s

jurisdiction.

The Court must now address the third factor, which examines the extent to which

the foreign suit is duplicative of the litigation in the United States. Eastern Pacific

Singapore concedes that “[l]itigation involving the same facts has been proceeding for

over a year and a half in the South Goa Court.”107 However, the Fifth Circuit has recently

held, in MWK Recruiting Inc. v. Jowers, that factual similarity alone is not sufficient for

a foreign lawsuit to be duplicitous; instead, the lawsuits must involve the same legal bases

for the suits to be duplicitous.108 In MWK Recruiting, the Fifth Circuit, in an unpublished

opinion, reversed the district court’s grant of an antisuit injunction because the district

court applied an inappropriate test—the logical relationship test—for determining

whether the foreign suit was duplicative of the domestic suit.109 The district court granted

the plaintiff’s motion for antisuit injunction because it found that adjudication of the

issues in the Hong Kong defamation suit necessarily would duplicate determinations that

the district would make on the merits in the domestic case filed by the MWK parties.110

107 R. Doc. 204-1 at p. 1.

108 MWK Recruiting Inc. v. Jowers, 833 F. App'x 560 (5th Cir. 2020).

109 833 F. App'x at 561.

110 MWK Recruiting, Inc. v. Jowers, No. 1:18-CV-444-RP, 2019 WL 5927288, at *4–*5 (W.D. Tex. Nov. 12,

2019), modified, No. 1:18-CV-444-RP, 2019 WL 7759522 (W.D. Tex. Dec. 11, 2019), vacated and remanded,

833 F. App'x 560 (5th Cir. 2020).

Although the district court determined the Hong Kong proceedings would not pose an

inequitable hardship to the MWK parties and that the Hong Kong proceedings would not

frustrate and delay the district court’s determination of the domestic case, it granted the

motion for foreign antisuit injunction because the claims in the Hong Kong suit

“substantially and logically duplicate” the issues in the domestic case.111 The district court

reasoned that “the Hong Kong [defamation] suit appears to exclusively involve claims

about Jowers’s conduct during his employment—the precise subject of the domestic

[trade secret misappropriation] case. The same operative facts serve as the basis of both

sets of claims; a logical relationship exists between them.”112 Jowers appealed the district

court’s order granting the foreign antisuit injunction.113

On appeal, the Fifth Circuit concluded, “for two reasons, that the court erred in

applying the logical-relationship test.”114 First, the Fifth Circuit explained the logical-

relationship test is inconsistent with Fifth Circuit precedent because, under that test, two

claims are duplicative so long as they share underlying operative facts.115 The Fifth Circuit

explained, under Fifth Circuit precedent, the “duplicative factor is about legal not factual,

similarity,” meaning that the Fifth Circuit finds suits to be duplicative when they involve

the same or similar legal bases or identical claims.116 As an example, the Fifth Circuit cited

to its prior decision in Kaepa, Inc. v. Achilles Corp.,117 wherein the court found the two

suits involved mirror-image claims because both the United States suit and the lawsuit in

111 Id. at *3.

112 Id. at *5 (emphasis in original).

113 MWK Recruiting Inc. v. Jowers, 833 F. App'x 560, 563 (5th Cir. 2020).

114 Id. at 564.

115 Id.

116 Id.

117 76 F.3d 624, 626 (5th Cir. 1996).

Japan claimed fraudulent inducement and breach of contract.118 Second, the Fifth Circuit

explained the logical relationship test would, contrary to Fifth Circuit precedent, lower

the bar for antisuit injunctions and render antisuit injunctions commonplace.119

The instant case is distinguishable from MWK Recruiting on two separate

grounds. First, in MWK Recruiting, the Fifth Circuit found that the district court

incorrectly “based its injunction solely on the premise that the two suits shared some

operative facts, even where the two other factors that help to establish vexatious or

oppressive litigation—inequitable hardship along with frustration and delay—were

admittedly absent.”120 In this case, not only do this action and the Indian action share the

same operative facts, the Court has found there is inequitable hardship resulting from the

Indian suit and the Indian suit has the ability to frustrate and delay the speedy and

efficient determination of this case.

Second, unlike in MWK Recruiting, this suit and the Indian suit involve the same

or similar legal bases. The Fifth Circuit in MWK Recruiting cited the following out of

circuit cases as applying a higher bar than the logical-relationship test: Allendale Mut.

Ins. Co. v. Bull Data Sys., Inc.,121 Paramedics Electromedicina Comercial, Ltda v. GE

Med. Sys. Info. Techs., Inc.,122 and E. & J. Gallo Winery v. Andina Licores S.A.123 In

Allendale Mutual, the Seventh Circuit concluded the district court properly issued a

foreign antisuit injunction because it would be an “absurd duplication of effort” for the

118 MWK Recruiting Inc., 833 F. App'x at 564.

119 Id. at 564–565.

120 Id. at 564 (emphasis added).

121 10 F.3d 425 (7th Cir. 1993).

122 369 F.3d 645 (2d Cir. 2004).

123 446 F.3d 984 (9th Cir. 2006).

parties to litigate “parallel lawsuits” in the United States and France.124 The Allendale

court also noted that “ordinarily a [party] who obtains a final judgment in a mirror-image

suit uses the judgment as the basis for a plea of res judicata in the parallel proceeding.”125

In Paramedics Electromedicina Comercial, Ltda., the Second Circuit held that “an anti-

suit injunction may be proper if resolution of the case before the enjoining court would

be dispositive of the enjoined action.”126 In E. & J. Gallo Winery, the Ninth Circuit

explained that the claims in the United States lawsuit were the same as the claims in the

Ecuadorian lawsuit because “[i]n the Ecuadorian court, Andina sued [Gallo] for breach of

contract. In the district court, Gallo sought, among other things, a declaration that Gallo

did not breach the distributorship agreement. Therefore, all the issues before the court in

the Ecuador action are before the court in the California action.”127

Applying the standard set forth in MWK Recruiting and the above-cited out-of-

circuit cases, the proceedings in this Court and the proceedings in India are duplicative

because they share the same or similar legal bases. First, the Court notes that Eastern

Pacific Singapore has conceded, in its filings in the Indian court, the two proceedings

involve the same legal bases by stating that “[t]he pendency of the US Proceedings and

the proceedings before this Hon’ble Court [in India] on the same cause of action would

124 Allendale Mut. Ins. Co., 10 F.3d at 431. In that case, two insurers of equipment destroyed by a fire in

France filed suit against the insured in federal district court, seeking a declaration that they were not liable

under the policy because the insured intentionally set the fire. The insured, seeking to enforce the insurance

policies, filed a separate action in federal district court against one of the insurers and the insurance broker,

and initiated litigation against the second insurer in the Commercial Court of Lille, France. The federal

district court consolidated the two United States lawsuits, and the insured filed additional counterclaims

against the insurance companies in the consolidated action. The insurers sought and received an antisuit

injunction from the federal district court, restraining the insured from taking steps in the litigation in

France. Id. at 425–28.

125 Id. at 433.

126 Paramedics Electromedicina Comercial, Ltda, 369 F.3d 645, 653 (2d Cir. 2004).

127 E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 991 (9th Cir. 2006).

undoubtly (sic) be multiplicity of proceedings.”128 Moreover, in the proceedings in this

Court, Plaintiff alleges he is a seaman suing his purported employer, Eastern Pacific

Singapore, and asserts tort claims under the Jones Act and general maritime law, and a

claim for breach of the collective bargaining agreement.129 In its Answer to Plaintiff’s

complaint and first amended complaint in this Court, Eastern Pacific Singapore includes

an affirmative defense that “Plaintiff has agreed to limit his damages as a part of his

contractual agreement to be employed aboard the Vessel.”130 Eastern Pacific Singapore

puts Plaintiff’s tort claims and his claim under the collective bargaining agreement

directly at issue in the Indian proceedings by asking that court to rule that Plaintiff’s tort

claims and his claims under the collective bargaining agreement are circumscribed by the

Seafarer Employment Agreement.131 Specifically, in the complaint and application for

injunction filed with the Indian court, Eastern Pacific Singapore and EPS India expressly

ask the court to “grant a decree of declaration that the Defendant’s [Kholkar Vishveshwar

Ganpat] purported claim for compensation of disability for having contracted malaria

working on board MV Stargate cannot exceed the sum contractually due under the

Seafarer Employment Agreement dated 27 December 2016.”132 At the injunction hearing

held in this Court, counsel for Eastern Pacific Singapore stated that Eastern Pacific

Singapore argues in the U.S. proceedings that the Jones Act and collective bargaining

agreement do not apply, that the law of India and the employment agreement apply, and

that, as a result, Plaintiff’s damages are limited to $120,860. Counsel for Eastern Pacific

Singapore further stated that the argument lodged by Eastern Pacific Singapore and EPS

128 R. Doc. 142-2 at p. 42 (emphasis added).

129 See generally R. Doc. 1 and R. Doc. 212.

130 R. Doc. 230 at p. 16.

131 R. Doc. 142-2 at p. 46.

132 Id.

India in the Indian proceedings is that Plaintiff’s recovery is limited by the terms of the

employment agreement. The logical inference of Eastern Pacific Singapore’s argument,

made both in this Court and in the Indian court, is that the employment contract applies

to the exclusion of the Jones Act, the general maritime law, and the collective bargaining

agreement. Although Plaintiff has not brought any claims in the Indian proceedings, his

claims here, as described above, are brought under the Jones Act, general maritime law,

and the collective bargaining agreement. As a result, this action and the Indian action

involve the same legal bases.

In sum, whether Plaintiff may proceed on his tort claims and his claim for breach

of the collective bargaining agreement, or whether Plaintiff’s recovery is limited by the

employment contract, is an ultimate legal question at issue in both this case and in the

suit in India. A ruling by this Court that Plaintiff is entitled to recover under the Jones

Act, general maritime law, and under the collective bargaining agreement against Eastern

Pacific Singapore would be dispositive of the merits in the Indian case, because such a

ruling would preclude Eastern Pacific Singapore’s contention that the employment

agreement is Plaintiff’s exclusive remedy. Additionally, pursuit of the litigation in India

could result in inconsistent rulings in the two suits on the question of whether the

employment agreement provides Plaintiff’s exclusive remedy, further demonstrating that

the two suits involve the same legal bases. The party to first obtain a favorable judgment,

either this Court or the Indian court, on the question of the exclusivity of the remedy

under the employment contract, would thereafter use that judgment as the basis for a plea

of res judicata in the court which had not yet reached final judgment.133

133 See, e.g., Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 433 (7th Cir. 1993) (explaining that

“[o]rdinarily a plaintiff who obtains a final judgment in a mirror-image suit uses the judgment as the basis

for a plea of res judicata in the parallel proceeding. If Allendale obtained a judgment [from the federal

As a result, the Court—having found that the Indian suit threatens to cause

inequitable hardship, has a real ability to frustrate and delay the determination of the

instant case, and has the same legal bases as instant case—concludes the Indian

proceedings are vexatious and oppressive. The Court now turns to the issue of

international comity.

Concerns of international comity do not counsel against the issuance of a

foreign antisuit injunction.

The Fifth Circuit has impliedly recognized the importance of international comity

when a case implicates public international issues and when prior steps in resolving a

dispute have taken place in the foreign forum.134 Although the facts of this case reflect

contacts with several nations, this is a private dispute between private parties, and no

public international issues are implicated in this case. Furthermore, it cannot be said that

the grant of the antisuit injunction actually threatens relations between the United States

and India.135 This lawsuit has been pending in the United States for almost three and a

half years and is now “firmly ensconced within the confines of the United States judicial

system.”136 The Fifth Circuit, elevating the need to prevent vexatious or oppressive

litigation over concerns of international comity, has advised that district courts are not

required to “genuflect before a vague and omnipotent notion of comity every time that it

must decide whether to enjoin a foreign action.”137 Granting Plaintiff’s motion for antisuit

injunction will not unduly trample on notions of comity, particularly in light of the Indian

district court] that its and FMI's policies do not cover the fire loss . . ., it would interpose the judgment in

BDS's suit against FMI in the [French court.]”)

134 Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 371

(5th Cir. 2003).

135 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir. 1996).

136 Id.

137 Id.

court’s preliminary ex parte injunction restraining Plaintiff from prosecuting his claims

in this Court.

Accordingly, the Court concludes that, in this case, the need to prevent vexatious

or oppressive litigation and to protect the Court’s jurisdiction is significant and outweighs

the need to defer to principles of international comity. As a result, the Court concludes

Plaintiff’s motion for antisuit injunction should be granted.

Plaintiff is not required to post security under Federal Rule of Civil

Procedure 65(c).

Federal Rule of Civil Procedure 65(c) states that the court may issue a preliminary

injunction “only if the movant gives security in an amount that the court considers proper

to pay the costs and damages sustained by any party found to have been wrongfully

enjoined or restrained.”138 “In holding that the amount of security required pursuant to

Rule 65(c) is a matter for the discretion of the trial court,” the Fifth Circuit has ruled that

the court “may elect to require no security at all.”139 In Kaepa, the Fifth Circuit, after

affirming the district court’s issuance of a foreign antisuit injunction, held the district

court did not violate Rule 65(c) by failing to require the movant to post a bond.140 Noting

that it was appropriate not to require the movant to post security because it was the

enjoined party who created the “risk of damages for delay or duplication by filing the

second, mirror-image suit in Japan,” the Fifth Circuit stated that the district court did not

abuse its discretion in refusing to require the movant to post security because the antisuit

injunction could “only work to avoid damages, not cause them.”141

138 Fed. R. Civ. P. 65(c).

139 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (citing Corrigan Dispatch Company v.

Casa Guzman, 569 F.2d 300, 303 (5th Cir.1978)).

140 Id.

141 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 n.20 (5th Cir. 1996).

The Court finds the reasoning employed by the Fifth Circuit in Kaepa to be

applicable to the instant case. Furthermore, in the case sub judice, the foreign litigation

to be enjoined is an action for declaratory and injunctive relief; Eastern Pacific Singapore

and EPS India are not seeking damages as a form of relief in the Indian litigation.

Pursuant to Rule 65(c), the Court finds no security is required for this antisuit

injunction.142

Under Federal Rule of Civil Procedure 65(d)(2), Eastern Pacific Singapore

is required to give notice of this order to EPS India.

Federal Rule of Civil Procedure 65(d)(2) provides that every order granting an

injunction

binds only the following who receive actual notice of it by personal service

or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys;

and

(C) other persons who are in active concert or participation with

anyone described in Rule 65(d)(2)(A) or (B).143

Subpart (C) “contemplates two categories of persons who may be bound by an

injunction.”144 First, a nonparty may be held in contempt if he aids or abets an enjoined

party in violating an injunction”; second, “an injunction may be enforced against a

nonparty in privity with the enjoined party.”145 “Ultimately, a determination that privity

142 See id. at 628.

143 Fed. R. Civ. P. 65(d)(2)(A)–(C).

144 Texas v. Dep't of Lab., 929 F.3d 205, 211 (5th Cir. 2019).

145 Id. (quoting Nat'l Spiritual Assembly of Baha'is of U.S. Under Hereditary Guardianship, Inc. v. Nat'l

Spiritual Assembly of Baha'is of U.S., Inc., 628 F.3d 837, 848–49 (7th Cir. 2010) (internal quotations

omitted).

exists ‘represents a legal conclusion that the relationship between the one who is a party

on the record and the non-party is sufficiently close.’”146

The antisuit injunction is binding upon Eastern Pacific Singapore under Rule

65(d)(2)(A) because Eastern Pacific Singapore is a party to this action. In addition, this

antisuit injunction is binding on EPS India under Rule 65(d)(2)(C) because EPS India is

in active concert or participation with Eastern Pacific Singapore, and the relationship

between Eastern Pacific Singapore and EPS India is “sufficiently close.”147 EPS India is a

subsidiary of Eastern Pacific Singapore; EPS India is 99.99% owned by Eastern Pacific

Singapore.148 Additionally, in the Indian lawsuit, there is a complete identity of interests

and positions between EPS India and Eastern Pacific Singapore, vis-à-vis Plaintiff. The

United States Supreme Court has explained that Rule 65(d)(2) is “derived from the

common law doctrine that a decree of injunction not only binds the parties defendant but

also those identified with them in interest, in ‘privity’ with them, represented by them or

subject to their control.”149 Both EPS India and Eastern Pacific Singapore are parties-

plaintiff in the Indian lawsuit, and both EPS India and Eastern Pacific Singapore seek to

restrain Plaintiff from prosecuting his claims in this Court, and to require Plaintiff to

litigate his claims in the Indian court. Unless EPS India is also subject to this Court’s

antisuit injunction order, the order will be of no practical utility, as EPS India may be able

146 Id. (quoting Sw. Airlines Co. v. Tex. Int'l Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977)).

147 See, e.g., Teas v. Twentieth Century-Fox Film Corp., 413 F.2d 1263, 1269 (5th Cir. 1969) (noting that

“the control relationship between parent and subsidiary might be proved sufficient for a determination of

privity or even alter ego.”).

148 R. Doc. 204-2 at ¶ 11, at p. 4. See, e.g., Int'l Equity Invs., Inc. v. Opportunity Equity Partners Ltd., 441

F. Supp. 2d 552, 562 (S.D.N.Y. 2006) (“Where parties to the two actions are affiliated or substantially

similar, such that their interests are represented by one another, courts have found the first requirement

[that the parties are the same in both matters] is met.”), aff'd, 246 F. App'x 73 (2d Cir. 2007).

149 Nat'l Spiritual Assembly of Baha'is of U.S. Under Hereditary Guardianship, Inc. v. Nat'l Spiritual

Assembly of Baha'is of U.S., Inc., 628 F.3d 837, 848 (7th Cir. 2010) (citing Regal Knitwear Co. v. N.L.R.B.,

324 U.S. 9, 14 (1945)).

to continue the Indian lawsuit with no participation by Eastern Pacific Singapore. It

follows that, if Plaintiff believes EPS India “as an entity acting in concert with Defendant

[Eastern Pacific Singapore] is violating this Order, Plaintiff may file a motion for

contempt.”150

Because Rule 65(d)(2) requires that persons to be bound by an injunction order

must receive actual notice, Eastern Pacific Singapore is required—immediately upon

receipt of this Order—to provide actual notice of this order to EPS India. To ensure that

such notice is provided, Eastern Pacific Singapore must file into the record of the Indian

lawsuit, a notice of this order, attaching a copy of this order to said notice.

CONCLUSION

IT IS ORDERED that Plaintiff’s Motion for Preliminary and Permanent

Injunction151 is GRANTED. Eastern Pacific Shipping, PTE. LTD, and its affiliates,

subsidiaries, and all persons in privity or active concert or participation with Eastern

Eastern Pacific Shipping, PTE. LTD, who have actual notice of this injunction, specifically

Eastern Pacific Shipping (India) Private Limited, shall dismiss their claims in the

litigation now pending in the District Court of South Goa, Margao, Republic of India,

styled and numbered as Eastern PacificShipping (India) Pte. Ltd. and Eastern Pacific

Shipping Pte. Ltd. versus Vishveshwar Ganpat Kholkar, Special Civil Suit No.

64/2020/III, CNR No. GASG02-003269-2020.

IT IS FURTHER ORDERED that Eastern Pacific Shipping, PTE. LTD, and

Eastern Pacific Shipping (India) Private Limited are HEREBY ENJOINED from

further prosecuting the litigation now pending in the District Court of South Goa, Margao,

150 M-I LLC v. FPUSA, LLC, No. SA:15-CV-406-DAE, 2015 WL 6738823, at *17 n.7 (W.D. Tex. Nov. 4, 2015),

adhered to, No. SA:15-CV-406-DAE, 2016 WL 6088344 (W.D. Tex. Oct. 17, 2016).

151 R. Doc. 199.

Republic of India, styled and numbered as Eastern PacificShipping (India) Pte. Ltd. and

Eastern Pacific Shipping Pte. Ltd. versus Vishveshwar Ganpat Kholkar, Special Civil

Suit No. 64/2020/III, CNR No. GASGO2-003269-2020.

IT IS FURTHER ORDERED that Eastern Pacific Shipping, PTE. LTD, shall,

immediately upon receipt of this Order, provide a copy of this Order to Eastern Pacific

Shipping (India) Private Limited.

IT IS FURTHER ORDERED that Eastern Pacific Shipping, PTE. LTD, shall, on

or before April 6, 2022, file a Notice of this Order, attaching a copy of this Order, into the

record of Eastern PacificShipping (India) Pte. Ltd. and Eastern Pacific Shipping Pte. Ltd.

versus Vishveshwar Ganpat Kholkar, Special Civil Suit No. 64/2020/III, CNR No.

GASGO02-003269-2020.

New Orleans, Louisiana, this 5th day of April, 2022.

Susie —_

SUSIE nog

UNITED STATES DISTRICT JUDGE

30