# Ganpat v. Eastern Pacific Shipping PTE. Ltd.

> District Court, E.D. Louisiana · April 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10187665

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** April 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187665

## How later opinions describe it (automated extraction)

- noting that “the control relationship between parent and subsidiary might be proved sufficient for a determination of privity or even alter ego.”
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187665. Public record. Not legal advice.