# Petition — Familia de Boom v. Arosa Mercantil, S. A. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1280%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1008 ## Text 80-1322 Office -Supreme Court, U.S. ie ee No. FEB § 1961 Bh Sk te IN THE ——= = a Supreme Court of the United States OCTOBER TERM, 1980 MARIA EMILIA FAMILIA de BOOM, et al., Petitioners, versus AROSA MERCANTIL, S.A., et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals For the Fifth Circuit PETITION FOR CERTIORARI Of Counsel: Counsel of Record for Petitioners: David W. Robertson Paul H. Due’ Gravel, Robertson & Brady Due’, Dodson & deGravelles 711 Washington Street 442 Europe Street Alexandria, Louisiana 71301 Baton Rouge, Louisiana 70802 (Area 318) 487-4501 (Area 504) 383-8851 SCOFIELDS QUALITY PRINTERS. P O BOX 53096. N O. LA 70153 - 504/822-1611 Il. III. IV. QUESTIONS PRESENTED Whether a United States District Court has suf- ficient “jurisdiction to determine jurisdiction” to enable it to enforce discovery orders directed to jurisdictional issues. Whether a United States District Court exercis- ing its federal question or admiralty jurisdiction is limited by personal jurisdiction concepts derived from forum-state law and the Fourteenth Amendment. Whether the decision below, denying federal court authority to enforce discovery orders against defendants challenging personal jurisdic- tion, conflicts with the deterrence policy set forth in this Court’s decisions in National Hockey League v. Metropolitan Hockey Club and Roadway Express v. Piper. Whether denying a federal admiralty court the power to enforce discovery orders against for- eign shipowners challenging the court’s jurisdic- tion conflicts with this Court’s decisions in Swift & Co. Packers v. Compania Columbiana del Caribe and Hel- lenic Lines v. Rhoditis. Whether the principle of United States v. United Mine Workers of America supports the validity of dis- covery sanctions against defendants contesting federal court jurisdiction. il LIST OF ALL PARTIES AS REQUIRED BY SUPREME COURT RULE 21.1(b) The undersigned counsel for Maria Emilia Familia deBoom, et al, petitioners, certifies that the following were the parties to the proceeding below. Maria Emilia Familia de Boom, spouse of decedent Hugo Boom Martinez, Individually as personal representative of the Estate of Hugo Boom Marti- nez and as natural tutrix of the minor children, Candida Rosa Boom Familia, Narcisco Ulises Boom Familia, Carlos Miguel Boom Familia and Miguel Antonio Boom Familia, and Carlos Eusebico Boom Familia; Alejandrina de Leon Garcia, Individually and as personal representative of the estate of Luis Felipe Astacio and as natural tutrix of the minor child, Julia Cecilia Astacio; Ramonita Mendez as natural tutrix of the minor child, Santa Bienve- nida Mendez; Pastora Guillaudeaux, Individually and as personal representative of the Estate of Geronimo Encarnacion Figuereo, deceased, and as natural tutrix of the minors, Virginia Cipriano En- carnacion Guillaudeaux, Cayetano Miguel Encar- nacion Guillaudeaux, Pablo Francisco Encarna- cion Guillaudeaux and Aidonais de Jesus Encarna- cion Guillaudeaux; Olga Hernandez, Individually and as personal representative of the estate of Ramon Antonio Carrasco Nolasco, deceased, and as natural tutrix of the minors, Adalgisa Carras- co, Xionara Carrasco, Miguelina Carrasco, July ill Carrasco, Francia Carrasco, Roberto Carrasco, Carlitos Carrasco, Soraya Carrasco, Antonio Ramon Carrasco and Ramon Antonio Carrasco; Carmen Nolasco; Ercelina Marce.ino, Individually and as personal representative of the estate of Jose’ Laluz Martino Sabino, deceased, and as natural tutrix of the minors, Maria Margarita Marcelino, Eduardo Marcelino, Alejandrina Marcelino, Por- firio Marcelino and Jose Marcelino; and Maria Sabino de Martino; Juana Mercedes, Individually and as personal representative of the estate of Roberto Cruz, deceased, and as natural tutrix of the minors, Alodia Elsinidia Cruz Mercedes, Edy Mercedes Cruz Mercedes, Angel Wilfredo Cruz Mercedes, Joseline Mercedes Cruz Mercedes, Elsa Yolanda Cruz Mercedes, Jose Roberto Cruz Mer- cedes and the posthumous child of the decedent, and Rosa Cruz; Fatima Augustina Monegro Burgos Santana, spouse of the decedent Ramon Santana Babi, Individually, and as natural tutrix of the minor, Ramona Santana Monegro, and Vic- toria Santana; Eusebia Astacio, as dependent mother of the decedent, Luis Felipe Astacio; Orfe- lina Maria Mercado Leazard, as surviving wife of the decedent, Leon Leazard Chevalier, as per- sonal representative of the estate of said dece- dent, Miguelina Jocelin Leazard Mercado and Joce- lin Miguelina Leazard Mercado; Freddys Ramon Leazard Mercado, Juan Duff Leazard Mercado, Mercedes Altagracia Leazard and Socrates Man- iV uel Leazard Mercado, sue herein individuaily and as dependent major children of the decedent, Leon Leazard Chevalier; Altagracia Chevalier Leazard as dependent mother of decedent, Leon Leazard Chevalier, Rosa Maria Tavarez, as surviving wife of decedent, Eduardo Tavarez Abreu, and natural tutrix of the minor, Eduardina Tavarez Abreu; Joa- quin Salador Facundo Melo, a member of the crew of the S/S UKOLA at the time of her sinking. — Plaintiffs-Appellees-Petitioners Arosa Mercantil, S.A. and Inversiones Calmer, S.A. — Defendants-Appellants-Respondents David W. Robertson Attorney for Plaintiffs- Appellees-Petitioners v TABLE OF CONTENTS Page QUESTIONS PRESENTED .........cccecccceees i LIST OF ALL PARTIES AS REQUIRED BY SUPREME COURT RULE 21.1(b) ............ ii SME OP MEMEO ESD 2. cece csccccccccccccces Vv TABLE OF AUTHORITIES ..........cccecceess vii 8 gL 6) n 2 EE cn ndaceevevecscccccceccccccceecss 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 02005: 2 STATEMENT OF THE CASE ...........+--+e ee: 3 can ensserenscessccsccseues 4 The Decision Below ......... cee eee eee eee eees 8 REASONS FOR GRANTING ee awe cewccecescceesesscssscees Q I. Certiorari Should Be Granted To Re- solve A Conflict Among The Courts of Appeals on Whether “Jurisdiction to _ Determine Jurisdiction” Will Support Discovery Sanctions Against De- fendants Challenging Federal Court ee 9 Il. Certiorari Should Be Granted To Determine The Applicability of State- Law and Fourteenth Amendment Per- IT. IV. vi TABLE OF CONTENTS (Continued) sonal Jurisdiction Concepts In Federal Court Cases Arising Under Federal Tee ee eee eee cae ee Certiorari Should Be Granted To Re- solve A Conflict Between the Deci- sion Below and This Court’s Deci- sions On The Deterrence Function of OO Certiorari Should Be Granted To Re- solve A Conflict Between The Deci- sion Below and This Court’s Deci- sions On “Jurisdiction To Determine Jurisdiction” In Admiralty Cases. ..... Certiorari Should Be Granted To Re- solve Conflict Among The Federal Courts On The Meaning Of This Court’s Decision In United States v. United Mine Workers of America... CONCLUSION CERTIFICATE tn ee fe ee Ce CF Cee CSO eee ee 8 @ APPENDIX A — Opinion Below APPENDIX B — Denial of Rehearing in Court Below es ee ee ee ee ee APPENDIX C — Text of Statutes and Con- stitutional Provisions Involved Page Te c+ oe ee Vii TABLE OF CONTENTS (Continued) APPENDIX D — Decrees and Orders of Trial ee oR ee APPENDIX E — Summary Chronology of Discovery Proceedings in Trial Court TABLE OF AUTHORITIES Cases: AFC Industries, Inc. v. E.E.O.C., 439 U.S. 1981, 99 Se Me RTE one da seen snd eedeseens ce> Amoco Overseas v. Compagnie Nationale Algerienne, I & 605 F.2d 648 (2d Cir. 1979) ..........ce aes Arrowsmith v. United Press International, 320 F.2d ee Ce Re EOD hae eh ban cde eed +h ee oes Blanco v. Carigulf Lines, 632 F.2d 656 (Sth Cir. SE LUG Ada HA Sek Oia one ea eS Oe Oo Braman v. Mary Hitchcock Mem. Hosp., 631 F.2d 6 ee ee each aan eearnes Briggs v. Goodwin, 569 F.2d 1 (D.C. Cir. 1977), rev. on other grounds sub nom., Stafford v. Briggs, 100 S.Ct. 774 (U.S. 1980) .......65. Communications Equipment v. Municipality of Anchorage, 498 F.Supp. 632 (iV.D. Ala. 1980) Davis v. Asano Bussan Co., 212 F.2d 558 (Sth Cir. Sere ee rT eee re ee eee ee a eo fe _ ' Scie Vill TABLE OF AUTHORITIES (Continued) Page Driver v. Helms, 577 F.2d 147 (1st Cir. 1978), re- versed on other grounds sub nom., Stafford v. Briggs, 100 S.Ct. 774 (U.S. 1980) ........ 000s 16 Edwards v. Gulf Mississippi Marine Corp., 449 F.Supp. 1363 (S.D. Tex. 1978) ........22 sees. 24 Engineering Equip. Co. v. S.S. Selene, 446 F.Supp. a te a, Serer eer eee eee 23 English v. 21st Phoenix Corp., 590 F.2d 723 (8th Cir. 1979) cert. den., 444 U.S. 832 (1979) .. 11-13 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ... 15,19 Everly Aircraft Co. v. Killiam, 414 F.2d 591 (Sth ee re eee ree eer 15 Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975) cert. den., 423 U.S. 1052 (1976) ......... 10 Florida, State of v. Treasure Salvors, 621 F.2d 1340 oe fae PP Seere Teer er TT Eee 28,29 Fraley v. Chesapeake & Ohio Ry. Co., 397 F.2d 1 (3d 3 ee ee ee ee eee 8 GAF Corp. v. Barclay Bros., Inc., 497 F.Supp. 539 BE eee rer rer eee eee ee 16 Gkiafis v. Steamship Yiosonas, 342 F.2d 546 (4th Be, OE css b ahn6o6 aka oO 6 oO 08s 660 O88 88 23 Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) ...... 28 ix TABLE OF AUTHORITIES (Continued) F Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. - 1972)... 006:000 0s eg S ins 0s 13 Grand Bahama Pet. Co. v. Canadian Transp., 450 F.Supp. 447 (W.D. Wash. 1978) .............. 23 Granite & Quartzite Centre, Inc. v. M/S Virma, 374 F.Supp. 1124 (S.D. Ga. 1974) ....... cece eee 23 Great Western United Corp. v. Kidwell, 577 F.2d 1256 (Sth Cie. 3970) (opus eee ean ss «-. 18,20 Hall, United States v., 472 F.2d 261 (Sth Cir. 1972).. 28 Haskins v. Lister, 626 F.2d 42 (8th Cir. 1980) ...... 14 Hellenic Lines Limited v. Rhoditis, 398 U.S. 306 (1970) «0. 'sse:s alsin . .1,25-27 Holland, United States v., 552 F.2d 667 (Sth Cir. 1977) 2.0000 c06e we ea 6 a 5 30 Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir. 1993) ccna ees os 15-16 International Shoe v. Washington, 326 U.S. 310 (1945) ... 000000 ou EIIE Ss a ise 6 16 Kane v. Union of Soviet Socialist Republics, 394 F.2d 131 (3d Cir. 1968) se aeeeea s,s... 23 Lambert v. Conrad, 536 F.2d 1183 (7th Cir. 1976) 2... 6ccccuc ue bass. 28 Leasco Data Processing Equip. Co. vr. Maxwell, 468 F.2d 1326 (2d Cie. Pipe eees ees... 16 x TABLE OF AUTHORITIES (Continued) Page Lekkas v. Liberian M/V Caledonia, 443 F.2d 10(4th Rae. See 2h ckeseacasecsseesce lee 10-12 Lerov v. Great Western United Corp., 99 S.Ct. 2710 UR eo See ey any Ce art ner ares 18,19 Long v. Vessel “Miss Ida Ann”, 490 F.Supp. 210 Cees. SOG: ROP kkkeeeducann sue bahes ane aoce 24 Mackensworth v. American Trading Transp. Co., 367 F.Supp. 373 (E.D. Pa. 1973) .........000 05. 23,24 Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974) ... Marquest Medical Products, Inc. v. EMDE Corp., 496 F.Supp. 1242 (D. Col. 1980) ................. 12 Mitsubishi Shoji Kaisha Ltd. v. M/S Galina, 323 F.Supp. 79 (5.0. Ten. BOF oacid ds weave veuas 24 National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) ........ cc ee eae Wey fe: Navarro v. Sedco, Inc., 449 F.Supp. 1355 (S.D. SOR. FOE. 46.006ceaknaeeeee eee 20,24 Nestor v. Hershev, 425 F.2d 504 (D.C. Cir. i ry re Oe Red River Transport v. Custom Airmotive, Inc., 497 F.Supp. 425 (D.N.D. 1980) .................. 15 Roadway Express, Inc. v. Piper, 100 S.Ct. 2455 ROE cweutccokiseeand sees tesa 1,22 Shaffer v. Heitner, 433 U.S. 186 (1977) ............ 23 xi TABLE OF AUTHORITIES (Continued) Page Sprow Dv. Hartford Ins. ts. 594 F.2d 412 (Sth . Chesa peake & Ohio Ry. Co., 397 F.2d 1, 3 (3d Cir. 1968); Surpitski 0. Hughes Kennan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966); Davis p. Asano Bussan Co., 212 F.2d 558, 564-65 (Sth Cir. 1954); Urquhart v. Amert- can-La France Foamite Corp., 144 F.2d 542, 544 (D.C. Cir.), cert. den 323 U.S. 783 (1944). See also 4 Moore’s Federal Practice, ¥ 26.56[6}. 9 ants was a requisite to the validity of the discovery sanction: The issues on appeal are: 1) whether the district court had personal jurisdiction over the defend- ants upon which to base the default judgment... . 629 F.2d at 1136. The opinion does not discuss why the “jurisdiction to determine jurisdiction” concept, deemed broad enough to support the district court’s orders issued under Fed. R.Civ.P. 37(a), was not broad enough to support enforcement of those orders through appropriate sanc- tions under Fed.R.Civ.P. 37(b). Concluding that plain- tiffs — concededly because defendants evaded discov- ery — had failed toshow minimum contacts with Texas sufficient to satisfy Texas law and the due process re- quirements of the 14th Amendment, the Court deter- mined that the discovery sanction must fall: This leaves the district judge in a quandary in try- ing to enforce his discovery order, but that is a necessary result of the limitations of sovereignty under due process. 629 F.2d at 1139. REASONS FOR GRANTING THE WRIT I. Certiorari Should Be Granted to Resolve A Conflict Among The Courts of Appeals On Whether “Jurisdiction to Determine Jurisdic- tion” Will Support Discovery Sanctions Against Defendants Challenging Federal Court Jurisdiction. 10 When the Court of Appeals in the present case deter- mined that the district court’s “jurisdiction to deter- mine jurisdiction’® (629 F.2d at 1137) was broad enough for discovery orders under Rule 37(a) but not broad enough for discovery sanctions under Rule 37(b), it left “the district judge in a quandary in trying toen- force his discovery order” (id. at 1139), put petitioners in a genuine “Catch-22” situation,’ encouraged de- fendants challenging federal court jurisdiction to re- sist discovery, and placed itself in square conflict with decisions of the Courts of Appeals for the Fourth and Eighth Circuits. Lekkas v. Liberian M/V Caledonia, 443 F.2d 10, 11 (4th Cir. 1971), was a maritime personal injury suit in which a Panamanian shipowner appeared in the United States District Court to contest subject matter jurisdiction, but refused to respond to discovery seeking informa- tion on the jurisdictional issues raised. The district 8 On “jurisdiction to determine jurisdiction”, see generally 13 Wright & Miller, Federal Practice and Procedure §3536. 9 Under traditional reasoning and as pointed out by the Fifth Circuit herein, plaintiff must prove personal jurisdiction when de- fendant challenges it. However, that burden is not insuperable be- cause discovery is available on the jurisdictional question raised Yet the Fifth Circuit has determined that a defendant who resists such discovery can not be subjected to sanctions ~~ ie, that dis- covery orders can not be enforced — because personal jurisdic- tion has not been proved. See Judge Oakes’ dissent in Fitzgerald v Texaco, Inc., 521 F.2d 448, 455-50 n. 1 (2d Cir. 1975), cert. den. 423 U.S. 1052 (1976), terming a much less egregious limit on jurisdic- tion discovery a “Catch-22 situation.” (At that point Judge Oukes cited Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4th Cir. 1971) discussed infra.) 11 court granted defendant’s motion to dismiss for lack of jurisdiction, and the Court of Appeal reversed, emphasizing that the district court had the authority and the duty to secure discovery, and that, if defend- ants did not promptly produce the required informa- tion, the court should apply sanctions under Fed.R.Civ.P. 37, and for the purposes of this case, take as established that the shipis owned by Americaninterests; or, if justice requires, the court should enter a default judgment on the issue of liability. The Fifth Circuit in the present case noted the exis- tence of Lekkas as contrary authority, but without ex- planation declined to follow it. 629 F.2d at 1139. The Court of Appeals for the Eighth Circuit is also at odds with the Fifth Circuit’s decision herein. In English v. 21st Phoenix Corp., 590 F.2d 723 (8th Cir. 1979), cert. den., 444 U.S. 832 (1979), plaintiffs brought a diversity action in Nebraska against a Delaware corporation allegedly liable as guarantor of plaintiffs’ rights under a commercial lease. After defendant failed to comply with discovery orders seeking jurisdictional informa- tion, the district court ordered sanctions under Fed.R Civ.P. 37(b)(2)(A), deeming personal jurisdiction estab- lished and defendant responsible as guarantor on the lease obligations. Thereafter the court entered sum- mary judgment against defendant on the issue of lia- bility. Answering defendant’s argument that the dis- trict court was without jurisdiction to invoke the sanc- 12 tions, the Court of Appeals termed the argument “meritless,” explaining: Unlike subject matter jurisdiction, in personam jurisdiction may be obtained by actions of a party amounting to a waiver, and the court has jurisdic- tion toenter an order finding a waiver. [Citations] The same principles give jurisdiction to the Dis- trict Court to enter a sanction order. It is estab- lished beyond cavil that a court has jurisdiction to determine jurisdiction, and a party cannot hope to avoid the jurisdiction of a court by concealing evi- dence regarding its activities in the forum state. 590 F.2d at 728 n. 5. The Fifth Circuit opinion in the present case acknowledged English as contrary authority, but dis- tinguished it on the basis of language in the English opinion (590 F.2d at 728 n. 6) indicating that the record there would have supported a finding of personal juris- diction,!° 629 F.2d at 1139. The purported distinction, 10 The Court also suggested that the English Court had found i personam jurisdiction on the basis of “actions of a party amounting to a waiver,” 629 F.2d at 1139, and implied it could find no waiver here. This treatment of English will not bear scrutiny, for if one de- fendant’s inexcusable refusal to comply with jurisdiction dis- covery “waives” objections to personal jurisdiction so should an- other's. Traditionally, “waiver” cases are those in which defend- ant voluntarily appears and contests on the merits or otherwise participates in the proceedings prior to raising the jurisdiction ob- jection, See, e.g., Zets v. Scott, 498 F.Supp. 884, 886 (W.D. N.Y. 1980); Marquest Medical Products. Inc. v. EMDE Corp.. 496 F.Supp 1242, 1246 (D. Col. 1980), (When the English Court mentioned waiver it cited to such situations.) None of the defendants in English, Lekkas, or the present case made that kind of waiver. What the above-quoted language from English says is that the present situation is like or analogous to waiver cases, in that defendant wist 13 however, overlooks the clear import of the English Court's “jurisdiction to determine jurisdiction” state- ment, quoted above. Further, it ignores the fact that the perceived deficiencies in the present jurisdictional record were, in the Fifth Circuit’s own stated view, entirely the product of defendants’ refusals to submit to discovery. While the narrow issue before the Fifth Circuit was the validity of a default judgment entered as a sanction under Fed.R.Civ.P. 37(b), the Court’s reasoning would apparently foreclose the availability of any of the Rule 37(b) sanctions. The Court's language so indicated, 629 F.2d 1139 at headnote #9, and the Court did not distin- guish English on the basis that it had involved a “lesser” Rule 37(b) sanction, i.e., taking personal jurisdiction as established, as it might well have done had it consider- ed its reasoning limited to the default sanction. Nor would that approach have answered the Fifth Circuit's “sovereignty” objections; if “the limitations of sov ereignty under due process” (629 F.2d at 1139) de- ing to challenge the in personam jurisdiction of a federal court has a choice. He may elect not to participate at all in the proceedings and later attack the judgment or resist execution on jurisdictional grounds. Alternatively, he may come into the proceedings to con test jurisdiction by filing a Rule 12(b) motion to dismiss, as these defendants did. Many cases have held that a defendant who chooses the latter option has “submitted to an obligation to pro vide information pertinent to the court's [jurisdictional] dec: sion.” Grammenos v. Lemos. 457 F.2d 1067, 1070 (2d Cir. 1972) In curring that obligation might be termed a“ waiver” of objections to the court’s authority, but that reasoning does not help to answer why some defendants who shirk the obligation are sanctionable and others are not 14 mand the presence of personal jurisdiction contacts, it is hard to see how deeming those contacts present answers the situation. The decision below means there can be no effective discovery on personal jurisdiction issues. The result and reasoning puts the Fifth Circuit at odds with the Fourth and Eighth,"! and certiorari should be granted to resolve that conflict. Il. Certiorari Should Be Granted To Determine The Applicability Of State-Law and Four- teenth Amendmert Personal Jurisdiction Concepts In Federal Court Cases Arising Under Federal Law. The Fifth Circuit in the present case held that the Rule 37(b) sanctioncould not be imposed because plain- tiffs had not proved the personal jurisdiction and serv- ice of process requirements flowing from the Texas long-arm statute, Tex.Rev.Civ.Stat. art. 2031b, and the Fourteenth Amendment. The opinion does not ex- plain why a federal admiralty court should be thus re- stricted by state law and limits on state sovereignty. Petitioners will show that the Court was mistaken in requiring Texas contacts in this admiralty case. 11 Another Eighth Circuit decision that may be squarely incon- flict with the Fifth Circuit’s decision in the present case is Haskins 0. Lister, 626 F.2d 42, 43 (8th Cir. 1980), which upheld default judg- ment as a sanction for repeated refusals to comply with discovery orders against defendants who had “continually evaded service by the United States Marshal.” The opinion does not clarify whether it was service of process that was evaded, or service of discovery items 15 Federal courts in ordinary diversity cases are re- stricted as to personal jurisdiction by the standards applicable to state courts; these standards come from the applicable state statutes and the Fourteenth Amendment, and are imposed on diversity courts as a consequence of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).12 Even as to diversity cases, thus limiting fed- eral courts has beena hotly debated matter.'? All com- mentators agree that whether diversity courts should be so limited is a question of Erie policy, and that it is certainly not constitutionally required that it be so.!4 In cases like the present one, in which federal court jurisdiction is invoked to enforce rights created by fed- eral law, there is universal agreement that nationwide service of process and personal jurisdiction is constitu- tionally permissible. Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 416-18 (9th Cir. 1977); Honeywell Inc. v. 12 Many cases make it clear that it is Erie that is the source of those requirements in diversity cases. See, e.g., Eyerly Aircraft Co. p Killian, 414 F.2d 591, 598, 603 (Sth Cir. 1969); Arrowsmith v. United Press International, 320 F.2d 219, 222-31 (2d Cir. 1963); Communica- tions Equipment v. Municipality of Anchorage, 498 F.Supp. 632, 633 (N.D. Ala. 1980); Red River Transport v. Custom Airmotive, Inc., 497 F.Supp. 425, 426 (D. N.D. 1980). 13 See, e.g., Judge Clark’s exhaustive dissent in Arrowsmith, 320 F.2d at 234-44; Kaplan, “Amendments of the Federal Rules of Civil Procedure, 1961-63(I),” 77 Harv.L.Rev. 601, 631-32 (1964); See- burger, “The Federal Long-Arm: The Uses of Diversity, or ‘Tain't So, McGee”, 40 Ind.L.Rev. 380(1977); 4 Wright & Miller, Federal Practice and Procedure §275, p. 302. 14 See Arrowsmith, supra, 320 F.2d at 226; Braman v. Mary Hitch cock Mem. Hosp., 631 F.2d 6, 8(2d Cir. 1980); Sprowv Hartford Ins. Co 594 F.2d 412, 410 (Sth Cir. 1979). 16 Metz Apparatewerke, 509 F.2d 1137, 1143 (7th Cir. 1975); Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974). The relevant constitutional standards come from the Fifth, not the Fourteenth Amendment. The relevant Fifth Amendment inquiry is whether defendant had actual notice of the proceedings (which the present de- fendants plainly had) and whether service was made within the United States. Driver v. Helms, 577 F.2d 147, 157 (1st Cir. 1978), rev. on other grounds, 100 S.Ct. 774 (1980); Mariash v. Morrill, supra, 496 F.2d at 1143. Some cases suggest an additional Fifth Amendment re- quirement of “minimum contacts” with the United States as a whole, at least in cases in which an alien de- fendant is served outside the boundaries of the United States.!5 See, e.g., Wells Fargo, supra, 556 F.2d at 416-18; Mariash, supra, 496 F.2d at 1143; Leasco Data Processing Equip. Co. v. Maxwell, 468 F.2d 1326, 1340 (2nd Cir. 1972). That the decision below was wrong to apply state- sovereignty limits is further shown by two very recent decisions of this Court. In Stafford v. Briggs, 100 S.Ct. 774 (U.S. 1980), this Court rc versed decisions of the Court of Appeals for the First! and District of Columbia!” 15 In GAF Corp. v. Barclay Bros., Inc., 497 F.Supp. 539, 540(D.N_J. 1980), a diversity court recently stated that International Shoe’s “minimum contacts” requirements do not apply when service is made within the boundaries of the forum state. 16 Driver v. Helms, 557 F.2d 147, 155-57 (1st Cir. 1978). 17 Briggs v. Goodwin, 569 F.2d 1, 9-10 (D.C. Cir. 1977). 17 Circuits holding federal officials amenable to nation- wide personal jurisdiction, service of process, and venue standards in damages actions for civil rights vio- lations under 28 U.S.C. 1391(e). This Court held that 1391(e) did not apply to damages actions against fed- eral officials in their individual capacities, and there- fore did not reach the Courts of Appeals’ determina- tions that Fifth Amendment due process standards were not offended by the provision for nationwide per- sonal jurisdiction and service of process. However, the Court’s discussion strongly implies agreement with that reasoning, 100 S.Ct. at 784-85. Dissenting, Jus- tices Stewart and Brennan found 1391(e) applicable to the damages suits and therefore did reach the relevant Fifth Amendment question, 100 S.Ct. at 789: “{D]ue process requires only certain minimum contacts between the defendant and the sovereign that has created the court. [Citations.] The issue is not whether it is unfair to require a defendant to assume the burden of litigating in an inconveni- ent forum, but rather whether the court of a par- ticular sovereign has power to exercise personal jurisdiction over a named defendant. The cases be- fore us involve suits against residents of the Unit- ed States in the courts of the United States. No due process problem exists.” [Emphasis supplied.]'8 18 The dissenting Justices went on to point out that the liberal venue-transfer provision of 28 U.S.C. 1404(a) answered any “fair ness” argument. 18 In Leroy v. Great Western United Corp., 99 S.Ct. 2710 (U.S. 1979), this Court reversed a decision of the Fifth Circuit Court of Appeals that had held Idaho defend- ants amenable to federal court venue and personal jurisdiction in Texas in a suit based on federal law.1° This Court reversed on the view that venue was im- proper and expressly did not reach “the constitutional question arising out of the attempt to assert personal jurisdiction over appellants.” 99 S.Ct. at 2715. Dis- senting, Justices White, Brennan, and Marshall found venue proper inthe Texas court under 15U.S.C. §78aa, and therefore did reach the constitutional issue, stat- ing, 99 S.Ct. at 2721: “(There [are] no restrictions imposed by the Con- stitution on the exercise of jurisdiction by the United States over its residents [citation.]” It is therefore very clear that, insofar as contitutional limits go, the correct inquiry in the present case was Fifth Amendment due process and contacts with the United States, rather than Fourteenth Amendment standards and contacts with Texas. Further, in Stafford and Leroy, four Justices of this Court stated that under applicable Fifth Amendment standards personal juris- diction can be asserted over any United States resident 19 Great Western United Corp. v. Kidwell, 577 F.2d 1256 (Sth Cir. 1978), The Fifth Circuit held the Idaho defendants subject to per- sonal jurisdiction under the Texas long-arm statute and the Four- teenth Amendment, and therefore did not reach the issue of whether there should be a federal personal jurisdiction standard in such a case 19 anywhere in the United States. The majority opinion in Stafford implies agreement with that view. While the present defendants are not U.S. residents, they were served with process in the United States; the record herein shows significant United States contacts (R. 128, 137, 159, 180), and would have shown more but for defendants’ “flagrant” and “contumacious’ dis- covery roadblock. Petitioners submit that Stafford, Leroy and the above-cited lower court decisions show that personal jurisdiction could constitutionally be assert- ed over these defendants. At a minimum, the decisions certainly show that nothing in the constitution re- quired the evisceration of the district court’s discovery powers. This section of the Petition has sought to demon- strate that the Fifth Circuit’s application of state-law jurisdictional concepts could not validly derive from either constitutional law or Erie analysis. By way of attenuated postscript, it should also be explained that the reasoning and result below could not sensibly have come from Fed.R.Civ.P. 4(e). It is true that most of the above decisions applying or discussing the application of nationwide personal jurisdiction standards involved situations in which Congress had (or had arguably) provided for nationwide service of process. It is also true that, when service of process is made via Fed.R. Civ.P. 4(e) and a state long-arm statute, there is an argument based on the language of 4(e) — “service. . . under the circumstances and in the manner prescribed by [state] statute” — that federal courts areconfined by state-law personal jurisdiction concepts. However: (1) 20 The Fifth Circuit did not rest its decision on the language of Rule 4(e) but on “limitations of sovereign- ty under due process,” 629 F.2d at 1139. (2) Whether Rule 4(e) should confine a federal-question or admiral- ty court to state-law persona’ jurisdiction limits has been a vigorously debated topic in the courts of the Fifth Circuit and among the commentators;?° reach- ing a conclusion one way or the other on that question would have involved extended analysis and inquiry which the Court below plainly did not make. (3) Apply- ing Rule 4(e) to defeat discovery sanctions would have been an unexplained preference for one federal rule, 4(e), over another, 37(b), and it would have left un- explained the Fifth Circuit’s apparent view that the Rule 37(a) discovery orders were valid, 629 F.2d at 1137. (4) To turn this case on Rule 4(e) would have re- quired taking account of the fact that plaintiffs first served defendant Inversiones under Rule 4(d)(3) through its agent Gulf Coast Shipping of Houston (R. 103).21 (5) Deciding the case on the basis of the language of Rule 4(e) would have required an account- ing of the fact that Rule 4(d)(7), which by its terms is broad enough to encompass extraterritorial service, is unlike Rule 4(e) in that it refers to service “in the manner” prescribed by state law but omits reference to 20 See, Judge Godbold’s dissent in Great Western United Corp. v. Kid well, 577 F.2d 1256, 1293 (Sth Cir. 1978); Navarro v. Sedco, Inc., 449 F.Supp. 1355, 1357-58 n. 1(S.D. Tex. 1978), and citations therein 21. The Court below acknowledged that “plaintiffs were never given an opportunity to find or present facts through discovery in dicating valid service,” 629 F.2d at 1139, but evidently felt itself bound by defendant's assertion that Gult Coast was not its agent 21 “under the circumstances” prescribed by state law. (6) Finding that state-law limits come in through Rule 4(e) to defeat the district court’s powers granted by Rule 37(b) would have been in conflict, at least in principle, with this Court’s decision in Walker v. Armco Steel Corp., 100 S.Ct. 1978, 1985-86 (U.S. 1980); this was a diver- sity case in which this Court reiterated and reemphasized the principle that, in cases of direct con- flict between state law and a Federal Rule of Civil Pro- cedure, the Federal Rule prevails. Il]. Certiorari Should Be Granted To Resolve A Conflict Between the Decision Below And This Court’s Decisions On The Deterrence Function Of Discovery Sanctions. The Court of Appeals in the present case held that default judgment is not available as a sanction against defendants challenging federal court in personam juris- diction, and seems to have foreclosed the availability of any of the Fed.R.Civ.P. 37(b) sanctions in such situa- tions. There seems no way to read the decision that does not give substantial comfort to those who would hope to challenge federal court jurisdiction and con- ceal their contacts with the United States or the forum state. This result is completely at odds with recent emphasis in the decisions of this Court, the lower fed- eral courts, and the literature of the importance of the general deterrence function of Rule 37(b) sanctions. In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976), this Court approved dismissal of the plaintiff's action as a sanction against refusal to make discovery, stating: == 22 But here as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the District Court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. This Court recently reinforced and reaffirmed that policy in Roadway Express, Inc. v. Piper, 100 S.Ct. 2455, 2462 (U.S. 1980). The same policy was strongly emphasized by Justices Powell, Stewart, and Rehn- quist, dissenting from writ denial in AFC Industries, Inc. v, E.E.O.C., 439 U.S. 1981, 99 S.Ct. 865, 868-69 (1979). The Courts of Appeals have been vigorously pursu- ing the National Hockey League deterrence policy. See generally, Note, “The Emerging Deterrence Orienta- tion in the Imposition of Discovery Sanctions,” 91 Harv.L.Rev. 1033 (1978); Epstein et al., “An Update on Rule 37 Sanctions After National Hockey League v. Metropolitan Hockey Clubs, Inc.,” 84 F.R.D. 145 (1980), and citations therein; 4A Moore’s Federal Prac- tice, § 37.02[2.-5]. The thrust of the Fifth Circuit’s de- cision is diametrically opposed to the current of all these decisions and to the directives of this Court in National Hockey League and Roadway Express. The present decision conflicts in significant principle with all the above cases, including other decisions of the Fifth Cir- cuit, and certiorari should be granted to resolve that conflict. 23 IV. Certiorari Should Be Granted To Resolve A Conflict Between The Decision Below and This Court’s Decisions on “Jurisdiction To Determine Jurisdiction’ In Admiralty Cases. The present case was brought under the district court’s admiralty jurisdiction, 28 U.S.C. §1333(R. 4). It has been said that “(t]he autonomy of admiralty from the common law is of constitutional magnitude.”22 For example, in personam jurisdiction can be acquired in ad- miralty through the device of maritime attachment, Fed.R.Civ.P. B, by attaching any tangible or intangible property of defendant wherever found, without refer- ence to whether defendant has ever had any other con- tacts with the United States.23 Further, even apart from maritime attachment, it has been frequently stated that personal jurisdictionin admiralty can be up- held on the basis of a single prior visit of defendant's ship to the place of the forum.?4 In such cases, while 22 Grand Bahama Pet. Co. v. Canadian Transp., 450 F.Supp. 447, 453 (W.D. Wash. 1978). 23 See, e.g., Amoco Overseas 0. Compagnie Nationale Algerienne, 605 F.2d 648, 655 (2d Cir. 1979) (see discussion of admiralty’s “special history and [unique] circumstances,” and of the concept of “juris- diction by necessity”); Grand Bahama, supra, 450 F.Supp. at 452-56; Engineering Equip. Co. v. S.S. Selene, 446 F.Supp. 706, 709-10 (S.D. N.Y. 1978). [These cases conclude that Shaffer v. Heitner, 433 U.S 186 (1977), does not limit maritime attachment | 24 Kane v. Union of Soviet Socialist Republics, 394 F.2d 131 (3d Cir. 1968); Gkiafis v. Steamship Yiosonas, 342 F.2d 546, 555 (4th Cir. 1905); Engineering Equip. Co., supra, 446 F.Supp. at 710 (alternative hold- ing); Granite & Quartzite Centre. Inc. v. M/S Virma, 374 F.Supp. 1124 (S.D. Ga. 1974); Mackensworth v. American Trading Transp. Co., 307 24 state law thought applicable via Fed.R. 4(e) might re- quire that the lawsuit arise out of that ship contact, there is probably no constitutional requirement to that effect.25 The above special characteristics of admiralty juris- prudence strongly suggest that the court below should have found personal jurisdiction established over these admiralty defendants on the basis of the showing of de- fendants’ and the UKOLA’s contacts with the United States and with Texas that plaintiffs were able to make even in the fact of defendants’ discovery roadblock. More to the present point, they show that the Fifth Circuit’s opinion, which did not even mention the fact that this was an admiralty case, overlooked the rele- vance of this Court’s decisions on the scope of admiral- ty’s “jurisdiction to determine jurisdiction.” The scope of admiralty’s concept of jurisdiction to determine jurisdiction was firmly established in Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 691 (1950). Plaintiffs in that case sought to pro- ceed against foreign corporate defendants by way of the writ of foreign attachment (now called maritime attachment, Fed.R.Civ.P. B) through seizing a vessel in F.Supp. 373 (E.D. Pa. 1973) (opinion, including headnotes, in verse); Mitsubishi Shoji Kaisha Ltd. v. M/S Galina, 323 F.Supp. 79, 82 (S.D. Tex. 1971). 25 See Mackensworth, supra; Long v. Vessel “Miss Ida Ann”, 490 F.Supp. 210, 214-15 (S.D. Tex. 1980); Navario v. Sede, Im., 449 F.Supp. 1355, 1359-60, 1361-62 (S.D. Tex. 1978); Edwards v. Gull Mississippi Marine Corp., 449 F.Supp. 1363, 1368 (S.D. Tex. 1978) 25 the jurisdiction of the United States District Court where suit was brought. Defendants contested the validity of the attachment, contending that the vessel no longer belonged to the defendant. Plaintiffs alleged that the transfer was fraudulent and an effort to de- feat the jurisdiction of the court. Both the trial court and the Court of Appeals for the Fifth Circuit conclud- ed that admiralty lacked subject matter jurisdiction to inquire into whether the transfer was fraudulent. Cut- ting through that argument, this Court, in an opin- ion by Justice Frankfurter, held that the importance of the maritime attachment device as a means of provid- ing jurisdiction in admiralty meant that the court must have power to protect its jurisdiction by examining the transfer, stating: It would be strange indeed thus to hobble a legal system that has been so responsive to the practi- calities of maritime commerce and so inventive in adapting its jurisdiction to the needs of that com- merce. The Fifth Circuit’s decision herein imposes a limit on the power of an admiralty court to inquire into and (if the facts warrant) perfect its jurisdiction over a peri- patetic maritime defendant that is antithetical to Swift. More recently, in Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 309-10 (1970), this Court treated the issue of subject matter jurisdiction under the Jones Act (in an action by an alien plaintiff against a foreign corporate 26 shipowner) ina way that conflicts in principle with the decision below. The Rhoditis suit originated as a libel in rem against the vessel. After discovery revealed sub- stantial United States ties, plaintiff moved to have the Jones Act applied (see opinion of United States Court of Appeals for Fifth Circuit, 412 F.2d 919, 920 n. 4 (Sth Cir. 1968).) This Court upheld application of the Jones Act on the basis of the discovery-assisted finding that the actual ownership of the vessel rested principally in a long-time resident alien of the United States. Point- ing out that the resident alien enjoyed the same con- stitutional protections of due process as a citizen, this Court articulated as a quid nro quo his amenability to the obligations of a United States shipowner under the Jones Act and other United States law. The Fifth Circuit decision in the present case cuts against Rhoditis by effectively depriving the plaintiffs of the assistance of the federal judiciary in discovering the actual United States contacts of the owners and oper- ators of the UKOLA. The district court herein deter- mined to pursue discovery on jurisdictional issues be- fore deciding on the motions to dismiss partly on the basis of counsel’s assurance that preliminary investi- gations had suggested fairly frequent contacts of the UKOLA with the United States and that the actual beneficial ownership of the vessel was in United States citizens or permanent resident aliens of the United States. If plaintiff is not to have the benefit of discov- 27 ery to validate or rebut those preliminary indications, then the principle of Rhoditis is undone. Because the decision below conflicts in principle with Swift & Co. and Rhoditis, certiorari should be granted V. Certiorari Should Be Granted To Resolve Conflict Among The Federal Courts on the Meaning Of This Court’s Decision In United States v. United Mine Workers of America. The concept of “jurisdiction to determine jurisdic- tion” means that a federal court has the authority to determine whether it has jurisdiction over the parties to and subject matter of a suit. See generally 13 Wright & Miller, Federal Practice and Procedure §3536. Thus, a federal court can issue a temporary restraining order to preserve the status quo during a jurisdictional dis- pute and punish violation of that order as contempt, even though it may later develop that the court lacked subject matter or in personam jurisdiction. United States v United Mine Workers of America, 330 U.S. 258, 293 (1947); United States v. Thompson, 319 F.2d 665, 667 (2d Cir. 1963) The Uniied Mine Workers decision stands for a substan- tial and broad “jurisdiction to determine jurisdiction” concept. See, e.g., Nestor v. Hershey, 425 F.2d 504, 511 (D.C. Cir. 1969), citing United Mine Workers and the “jurisdiction to determine jurisdiction” concept for the court’s authority to proceed to the merits of a Selec- tive Service Act dispute when the question of subject 28 matter jurisdiction and the merits issues were “inex- tricably intertwined”.2° The teaching of all of these cases is that a federal court must necessarily be able to protect its jurisdic- tional inquiry through issuing orders and sanctions to effectuate determination of federal court jurisdiction. The Fifth Circuit’s decision in the present case leaves the district court with the power to issue (unenforce- able) orders but denies sanctions powers; it is in con- flict with United Mine Workers and the above Court of Appeals decisions.’ Furthermore, petitioners submit that the present de- cision is exemplary of conflict within the Fifth Circuit Court itself as tothe scope of the “jurisdiction to deter- mine jurisdiction” principle. In State of Florida v. Treasure Salvors, 621 F.2d 1340, 1345-46 (Sth Cir. 1980), the 26 See also Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir. 1976), citing United Mine Workers and the principle of “jurisdiction to determine jurisdiction” in support of the res judicata effect of a prior decision rendered by a court lacking in personam jurisdiction; United States v. Hall, 472 F.2d 261, 265 (Sth Cir. 1972), citing United Mine Workers and “jurisdiction to determine jurisdiction” for the court's authority to issue a temporary restraining order against all per- sons who might have notice of the order and punish violators for contempt in order to prevent disturbance of a school desegrega- tion decree. 27 Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962), is closely related to the “jurisdiction to determine jurisdiction” cases and represents a policy of federal court jurisdiction and procedure that is offended by the decision below. Goldlawr stands for the proposi- tion that a federal district court lacking personal jurisdiction has power to transfer the case to a district where personal jurisdic- tion can be perfected. 15 Wright & Miller, Federal Practice and Procedure §3827, p. 171 29 majority used the “jurisdiction to determine jurisdic- tion” concept ina way that is fully opposed in principle to the present Fifth Circuit decision. Meeting the State’s argument that the Eleventh Amendment meant the federal court lacked jurisdiction to adjudicate the ownership of state-claimed property, the Court stated: Once an appropriate challenge [tothe State’s claim of ownership] is made, the district judge is no long- er compelled to conclude that the State owns the res in dispute. Instead, the Court must make a jurisdictional determination very similar to that made in the classic ‘jurisdiction to determine juris- diction’ line of cases. Judge Rubin, a member of the Fifth Circuit panel that decided the present case, dissented in Treasure Salvors, taking a much narrower view of the “jurisdiction to determine jurisdiction” concept, 621 F.2d at 1351: The doctrine that a court has jurisdiction to deter- mine its own jurisdiction does not permit it to de- cide the merits of a suit against the state. Once the state appears and asserts title to the property in dispute the Court's jurisdiction is ended. Judge Rubin’s view of the “jurisdiction to determine jurisdiction” concept prevailed in the present case, 629 F.2d at 1139. That view squarely conflicts with cases like the Seventh Circuit decision in Nestor v. Hershey, supra, and it conflicts in principle with the United Mine Workers case 30 and its progeny. Certiorari should be granted to re- solve these conflicts.*8 CONCLUSION Wherefore, petitioners respectfully pray that a writ of certiorari be granted. Paul H. Due’ Attorney of Record Due’, Dodson & deGravelles 442 Europe Street Baton Rouge, Louisiana 70802 (Area 504) 383-8851 David W. Robertson Of Counsel Gravel, Robertson & Brady 711 Washington Street Alexandria, Louisiana 71301 (Area 318) 487-4501 29 Another Fifth Circuit decision showing a dispute within that Court as to the meaning of “jurisdiction to determine jurisdic- tion” is United States v. Holland, 552 F.2d 667, 675 (Sth Cir. 1977), vacated, 565 F.2d 383 (Sth Cir. 1978). 31 CERTIFICATE I hereby certify, pursuant to United States Supreme Court Rule 28.3, that all counsel of record herein have been served with three copies each of this Petition by depositing same in the United States Mail, first class postage prepaid, properly addressed to counsel at his post office address. la APPENDIX “A” Maria Emella FAMILIA DE BOOM. , et al., Plaintiffs-Appellees, versus AROSA MERCANTIL, S.A. and Inversiones Calmer, S.A., Defendants-Appellants. No. 79-1964 United States Court of Appeals, Fifth Circuit. Nov. 7, 1980. Appeal from the United States District Court for the Southern District of Texas. Before RUBIN, HENDERSON and REAVLEY, Cir- cuit Judges. REAVLEY, Circuit Judge: This is an appeal from a default judgment entered against the defendants, Arosa Mercantil, S.A. (“Arosa”) and Inversiones Calmer, S.A. (“Inver- 2a siones”), for failure to comply with the district court's order compelling answers to interrogatories pursuant to Fed.R.Civ.P. 37. These interrogatories concerned matters relevant to the determination of the court’s in personam jurisdiction over defendants. Upon failure to answer, the court refused to consider the defendants’ Rule 12(b) motion to dismiss for lack of jurisdiction and entered a default judgment assessing damages against both defendants jointly, severally, and in solido of $1,- 129,341.93 as a sanction for failure to make discovery. Fed.R.Civ.P. 37(b)(2)(c). The issues on appeal are: 1) whether the district court had personal jurisdiction over the defendants upon which to base the default judgment; and 2) whether the district court abused its discretion in granting a default judgment for over $1,129,000 as a sanctio. for failure to answer interrogatories. Since we feel that the plaintiff failed to adequately prove per- sonal jurisdiction, we must reverse, and remand to the district court for further proceedings. This case arises out of the sinking of the motor vessel UKOLA onthe high seas of the Gulf of Mexico on Jan- uary 19, 1977. The vessel, a freighter used for trans- porting bulk commodities, had sailed from the Domin- ican Republic on or about January 15, 1977. Approxi- mately two days out of port, the vessel was directed to proceed to Galveston, Texas to offload her cargo of sugar. As a result of the sinking, twenty of twenty- 3a three crewmen aboard the UKOLA died and the vessel and her cargo of sugar were lost. This suit was filed by one survivor and the personal representatives of a number of the deceased seaman against Arosa, the owner of the M/V UKOLA and In- versiones, the vessel's charterer.! The plaintiffs alleged damages under the Jones Act, 46 U.S.C. §688 (1976) and general maritime law. The merits of the claim have not been addressed. After filing suit, plaintiffs filed six interrogatories directed to Arosa. There was no response of any kind by Arosa until a hearing on plaintiff’s motion to com- pel answers to the interrogatories on July 18, 1977 when Arosa entered a motion to dismiss for lack of per- sonal and subject matter jurisdiction,2 and for insuffi- ciency of service of process. At this hearing the court ordered Arosa to file answers to these first interroga- tories. Arosa filed the answers on September 2, 1977. 1 Favori Shipping Company was also joined as a defendant, but was not included in the default judgment order. The default judg- ment against Arosa and Inversiones was made a final judgment by order of the district court pursuant to Fed.R.Civ.P. 54(b), March 9, 1979. 2 Defendants argue that the default judgment cannot stand be- cause the trial court lacked subject matter jurisdiction. What the defendants characterize as subject matter jurisdiction, the ques- tion of whether these plaintiffs are entitled to protection under the Jones Act, actually concerns the merits of the case. The trial court never determined the case on the merits and neither shall we. 4a Plaintiffs also filed a second set of interrogatories on July 11, 1977, which are of primary concern to us now. Arosa moved to postpone discovery and to extend the time to answer interrogatories. These motions, along with the previously filed motion to dismiss and plain- tiffs’ motion to compel answers to these interrogator- ies, were argued at a hearing before the court Septem- ber 14, 1977. The court refused to consider the de- fendant’s motion to dismiss until plaintiffs could gather facts concerning jurisdiction through discovery. The court also ordered Arosa to answer within 60 days the interrogatories which concerned jurisdictional and re- lated issues. After Arosa failed to answer within the time speci- fied by the court order, plaintiffs moved for sanctions to be imposed; specifically, ajudgment of default on the issue of liability against Arosa. Plaintiffs also filed a motion to compel answers to interrogatories served five months before on Inversiones, which had been joined as a defendant. At a hearing on March 8, 1978, the court granted the interlocutory default judgment against Arosa for failure to comply with the court's previous order, and set the hearing on the question of damages for May 9, 1978. As toInversiones, the court refused to consider its motion to dismiss for lack of jurisdiction, as it had done with Arosa’s similar motion, until plaintiffs had the opportunity to complete dis- covery. The court granted Inversiones an additional fif- teen days to answer the interrogatories. Inversiones “answered” within the fifteen day period, but the Sa answers consisted primarily of statements that “de- fendant is unable at this time to answer.” None of the purported answers given by Inversiones were differ- ent from the answers given by Arosa, finally filed on March 23, 1978, after the default judgment was grant- ed, so it is doubtful that Inversiones itself contributed directly to any of the answers. At the May 9 hearing, the district court included In- versiones in the default judgment.‘ The plaintiff intro- duced depositions of the survivors of the various sea- men as evidence on the issue of quantum of liability against the defendants. On December 26, 1978, the dis- trict court entered judgment assessing damages against Arosa and Inversiones jointly, severally, andin solido, inthe sum of $1,129,341.93 plus interest at nine per cent from January 19, 1977.5 3 The interrogatories consisted of such questions as: whether Inversiones was a corporation and, if so, its date and place of in- corporation; whether Inversiones had a branch office in the Unit- ed States; whether Inversiones carried on any type of business transaction in the United States; and other simple questions. 4 We emphasize that at the May 9 hearing the district court made it clear that it did not question the good faith of the attorney for Arosa and Inversiones. Rather, it found that the flagrant vio- lation of the court’s orders was attributable to the attorney's clients. 5 Eleven actions pending in five federal judicial districts, includ- ing this action, concerning the sinking of the M/V UKOLA were presented before the judicial panel on multidistrict litigation, pur- suant to 28 U.S.C. §1407 (1976), to transfer all actions pending in districts other than the Southern District of Florida to that district for coordinated or consolidated pretrial proceedings with the 6a [t is well settled that a court has the jurisdiction to determine its own jurisdiction, subject to appellate re- view. Atlantic Las Olas, Inc. v. Joyner, 466 F.2d 496, 498 (Sth Cir.); 13 Wright & Miller, Federal Practice and Pro- cedure §3536 (1975). The district judge has broad dis- cretion to allow discovery on the jurisdictional issue in order to facilitate its determination. Washington v. Nor- ton Manufacturing, Inc., 588 F.2d 441 (Sth Cir. ), cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979). When a party fails to answer interrogatories served upon it by the other party, the court, upon motion by the discovering party, may enter an order compelling answers. Fed.R.Civ.Pro. 37(a). If the party then fails to comply with that order, the rules further provide for sanctions by the court, one of which is an order of de- fault judgment against the disobedient party. Fed.R. Civ.P. 37(b)(2)(c). Assuming, without deciding, that the trial judge was within his discretion in imposing the default judgment against Arosa and Inversiones for failure to comply with the order compelling discovery, that judgment is valid only if the court had personal jurisdiction over the defendants. The defendants assert that the record does not support jurisdiction under the Texas long-arm actions pending there. The panel, however, refused to include this action in the consolidated proceeding as it “would not accomplish the goals of Section 1407”. This case was severed from the other claims before the panel and remanded to the Southern District of Texas. In re Sinking of the Motor Vessel UKOLA, 462 F.Supp. 385 (Jud.Pan.Mult.Lit. 1978). 7a statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964),¢ nor does it support jurisdiction so as to comply with federal due process. They also argue that plain- tiffs did not satisfy the requirements of Article 2031b for service of process. The burden is on the plaintiff to establish jurisdic- tion when challenged by the defendant. Product Promo- 6 The Texas long-arm statute, Tex.Rev.Civ.Stat. §2051b (Ver- non 1964), provides in pertinent part: Act of engaging in business in state as equivalent to appointment of Secretary of State as agent Sec. 3. Any foreign corporation, association, joint stock com- pany, partnership, or nonresidential natural person that engages in business in this State, irrespective of any Statute or law re- specting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a desig- nated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deem- ed equivalent toan appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such cor- poration, joint stock company, association, partnership, or non- resident natural person is a party or is to be made a party. * * * * * * Delivery of process to Secretary of State; forwarding copy Sec. 5. Whenever process against a foreign corporation, joint stock company, association, partnership, or non-resident natura! person is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a state- ment of the name and address of the home or home office of the non-resident. Upon receipt of such process, the Secretary of State shall forthwith forward to the defendant a copy of the process by registered mail, return receipt requested. 8a tions v. Cousteau, 495 F.2d 483 (Sth Cir. 1974). In this case, the plaintiffs were foreclosed from presenting juris- dictional evidence in the exclusive possession of the de- fendants because the defendants refused to disclose the information in response to discovery procedures. That the plaintiffs may have been unable to obtain informa- tion from the defendants, however, does not exempt them from this burden of proof. For us to uphold the district court’s order of default we must find facts in the record to support the court’s exercise of personal jurisdiction over Arosa and Inversiones. To establish personal jurisdiction over a non-resi- dent defendant, the plaintiff must prove that the long- arm statute of the state in which the court sits confers jurisdiction and that the exercise of jurisdiction under state law comports with federal notions of due process. Cousteau, 495 F.2d at 489. The Texas long-arm statute, under which the plaintiffs assert jurisdiction, has been interpreted by the Texas Supreme Court to reach “as far as federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977). Therefore, we turn immediately to the federal law question of con- stitutional due process. In International Shoe v. Washington, 236 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court de- clared that a state could assert personal jurisdiction over a non-resident corporation provided it had “cer- tain minimum contacts with [the state] such that the 9a maintenance of the suit does not offend traditional notions of fair play andsubstantial justice.” Id., 326 U.S. at 317, 66 S.Ct. at 159, 90 L.Ed. at 102. Therefore, we must here decide if the defendants’ contacts with Texas were sufficient to permit Texas to assert jurisdiction, and, if so, if the jurisdiction was assertedin the manner required by Rule 4, Fed.R.Civ.P., which permits serv- ice in the manner permitted by Texas law. Due to the posture in which this case comes before us, the facts relevant to the jurisdictional issue do not appear on the record. Therefore, we feel it is impos- sible for us to find personal jurisdiction in this case. Courts have been liberal in finding jurisdiction in cases involving nonresident corporate defendants, see, e.g., Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (Sth Cir. 1980); Southwest Offset, Inc. v. Hudco Publishing Co., 622 F.2d 149 (Sth Cir. 1980); Cousteau. But on this record, the only contacts which the defendants have with Texas are that the UKOLA had been to Texas at least once be- fore while Arosa was the owner and Inversiones was the charterer, and that the UKOLA was bound for Texas when the tragedy occurred. The answers to the interrogatories which were filed indicate that neither corporation had stockholders in Texas, or for that matter, in the United States. The record contains no proof of any contract for delivery of sugar in Texas, an agent in Texas, or any other facts which would be suf- ficient to satisfy the due process standard. 10a Although we refuse to find personal jurisdiction on the record as it is now, we feel that the plaintiffs should be given an opportunity to introduce those facts rele- vant to jurisdiction. If the defendant actually does have minimumcontacts with the State of Texas, the plaintiff may be able to show it even though the defendant re- fuses to comply with discovery. The plaintiffs ask that we find jurisdiction in this case through waiver. The Eighth Circuit, in English v. 21s! Phoenix Corp., 590 F.2d 723 (8th Cir.), cert. denied, 444U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979), was faced with a situation much like the one presented here. In that case, the district court found the defendant corporation within its jurisdiction as a sanction for failure to respond to discovery. The court of appeals affirmed, recognizing that in personam jurisdiction may be obtain- ed by actions of a party amounting to waiver. Id. at 728 n.5. The Fourth Circuit has also approved the use of the sanction of default judgment when the defendants re- fused to provide the information necessary to make these jurisdictional determinations. Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4th Cir. 1971). There is no Fifth Circuit guidance on this precise point. Although we are tempted to follow the Fourth and Eighth Circuits and hold that the defendants waived jurisdiction by their contumacious conduct, we must refrain from doing so. Unlike 21st Phoenix, we have no finding by the district court that the defendants were doing business in Texas. We have only the facts on the lla record, which do not satisfy the due process require- ment of jurisdiction. Without the necessary facts on the record, we may not impose jurisdiction. This leaves the district judge in a quandary in trying to enforce his discovery order, but that is a necessary result of the limitations of sovereignty under due process. Although the district court undoubtedly has jurisdiction to determine its own jurisdiction, it cannot, on its own, establish jurisdiction. The Federal Rules of Civil Procedure determine methods of service of process, venue and other procedural requirements for exercising jurisdiction in federal actions. They relate only to procedure, however, and not to principles of jurisdiction except insofar as service of process, made in accordance with the rules, itself is a way of demon- strating or completing the court's jurisdiction. Al- though Rule 37 allows for the imposition of a default judgment as a sanction for failure to comply with dis- covery, it may be used only against parties who are within the court's jurisdiction. As with a challenge to jurisdiction, when service of process is challenged, the party on whose behalf serv- ice is made has the burden of establishing its validity. 5 Wright & Miller, supra, §1353 (1969). Although the plaintiffs were never given an opportunity to find or present facts through discovery indicating valid serv- ice, we must again agree with the defendants, as the plaintiffs did not satisfy this burden. There is noshow- ing on the record of an agency relationship between 12a Arosa and Lamonte, Burns & Co., upon whom service was made through the Texas Secretary of State, nor is there a showing of any connection between Inver- siones and the Miami address to which process was mailed. Moreover, when service is made upon the Sec- retary of State pursuant to Article 2031b, the Texas courts require the record toshow that the Secretary of State actually forwarded the process to the defendant. Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973). There is no such showing in this record. Texas courts also require an allegation in the com- plaint reciting the facts authorizing long-arm service of process. McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965). This court, however, has held that allegations, in the complaint are not necessary when the claim is filed in federal court if the facts appear elsewhere in the rec- ord. Eyerly Aircraft Co. v. Killian, 414 F.2d 951 (Sth Cir. 1969). Here such facts do not appear in the complaint or anywhere else in the record. Although service of process and personal jurisdic- tion may be waived by a party, we cannot find waiver by the defendants here. There is no waiver so long as the defendants expressly limited their appearance to the determination of those very issues, which was done by Arosa and Inversiones in this case. Accordingly, we must reverse the default judgment entered by the district court. We do feel, however, that 13a the plaintiffs are entitled to another opportunity to de- velop additional facts which would support jurisdic- tion and valid service of process. REVERSED AND REMANDED. APPENDIX “B’ UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT OFFICE OF THE CLERK December 17, 1980 TO ALL PARTIES LISTED BELOW: NO. 79-1964 MARIA EMELLA FAMILIA de BOOM, ET AL. -vs- AROSA MER- CANTIL, S.A., ET AL. Dear Counsel: This is to advise that an order has this day been enter- ed denying the petition for rehearing, and no member of the panel nor Judge in regular active service on the Court having requested that the Court be polled on re- hearing en banc (Rule 35, Federal Rules of Appellate 14a Procedure; Local Fifth Circuit Rule 16) the petition for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. Very truly yours, GILBERT F. GANUCHEAU, Clerk ls} LINDA JOHNSON Deputy Clerk cc: Mr. Terry P. Ayre Mr. David W. Robertson Mr. Paul H. Due APPENDIX “C’” CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED AMENDMENT V TO THE CONSTITUTION OF THE UNITED STATES AMENDMENT [V] No person shall be held to answer for a capital, or otherwise infamous crime, unless ona presentment or 15a indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled inany criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. AMENDMENT XIV, Sec. 1 TO THE CONSTITUTION OF THE UNITED STATES AMENDMENT XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 16a Rule 37(a) Federal Rules of Civil Procedure RULE 37. Failure to Make or Cooperate in Dis- covery: Sanctions (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order com- pelling discovery as follows: (1) Appropriate Court. Anapplication for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. An application for an order to adeponent whois not a party shall be made to the court in the district where the deposition is being taken. (2) Motion. If a deponent fails to answer a ques- tion propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designa- tion under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection sub- mitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspec- tion as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the re- quest. When taking a deposition on oral examination, the proponent of the question may complete or ad- journ the examination before he applies for an order. 17a If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c). (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (4) Award of Expenses of Motion If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessi- tated the motion or the party or attorney advising such conduct or both of them to pay tothe moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justi- fied or that other circumstances make an award of ex- penses unjust. If the motion is denied, the court shall, after oppor- tunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. 18a If the motionis granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and per- sons in a just manner. Rule 37(b) Federal Rules of Civil Procedure (b) Failure to Comply with Order. (1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to doso by the court in the district in which the deposition is being taken, the fail- ure may be considered a contempt of that court. (2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in 19a accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or de- fenses, or prohibiting him from introducing desig- nated matters in evidence; (C) An order striking out pleadings or parts there- of, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) Inlieu of any of the foregoing orders or in addi- tion thereto, an order treating as a contempt of court the failure to obey any orders except an order to sub- mit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce an- other for examination, such orders as are listed in para- graphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to pro- duce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the 20a failure was substantially justified or that the other cir- cumstances make an award of expenses unjust. Rule 4(d)(7) and 4(e) Federal Rules of Civil Procedure (7) Upon a defendant of any class referred to in paragraph (1) or (3) of the subdivision of this rule, it is also sufficient if the summons andcomplaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defend- ant in an action brought in the courts of general juris- diction of that state. (e) Same: Service Upon Party Not Inhabitant of or Found Within State. Whenever a statute of the Unit- ed States or an order of court thereunder provides for service of asummons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule. Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found 21a within the state, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances andinthe manner prescribed in the statute or rule. Tex. Rev. Civ. Stat. 2031b, sub-sections 3 and 5 The Texas long-arm statute, Tex.Rev.Civ.Stat. §2031b (Vernon 1964), provides in pertinent part: Act of engaging in business in state as equivalent to appointment of Secretary of State as agent ) Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespec- tive of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, asso- ciation, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom 22a service of process, may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-re ident natural per- son is a party or is to be made a party. Delivery of process to Secretary of State; forwarding copy Sec. 5. Whenever process against a foreign corpora- tion, joint stock company, association, partnership, or non-resident natural person is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a statement of the name and address of the home or home office of the non-resident. Upon receipt of such process, the Secre- tary of State shall forthwith forward tothe defendant a copy of the process by registered mail, return receipt requested. 23a APPENDIX “D” UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION MARIA EMILIA FAMILIA deBOOM, spouse of decedent Hugo Boom Martinez, Individually, et al versus C.A. G-77-28 AROSA MERCANTILS.A., FAROVI SHIPPING CO., and INVERSIONES CALMER, S.A. Filed: March 15, 1978 ORDER OF DEFAULT AGAINST DEFENDANT, AROSA MERCANTIL S.A. On this the 8th day of March, 1978, there came for hearing pursuant to regular assignment, the motion by plaintiff in the above numbered and entitled proceed- ing for judgment of default on the issue of liability against one of the defendants herein, Arosa Mercantil S.A., on the basis of said defendant's alleged willful fail- ure and refusal to answer interrogatories propounded by plaintiffs to said defendant after this Court had ordered this defendant to answer certain interroga- tories at a contradictory hearing previously held on 24a plaintiffs’ motion to compel answers to interroga- tories. Present: Paul H. Due’, attorney for plaintiffs; W. Garney Griggs, prior attorney of rec- ord for defendant, Arosa Mercantil S.A., and Terry P. Ayre, substituted attorney of rec- ord for defendant, Arosa Mercantil S.A. After reviewing the pleadings and the arguments of counsel, for oral reasons assigned: IT iS ORDERED that the motion by plaintiffs for judgment of default on the issue of liability against de- fendart, Arosa Mercantil S.A., be and it is hereby granted; and, accordingly, judgment of default on the issue of liability is granted against defendant, Arosa Mercantil S.A. and in favor of plaintiffs herein. ORDER RENDERED on the 8th day of March, 1978 at Galveston, Texas. ORDER SIGNED on this 15th day of March, 1978, at Galveston, Texas. Is} FINIS E. COWAN UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF TEXAS Order Submitted By: Paul H. Due’ « ¢ DUE’, DODSON & deGRAVELLES Attorneys for Plaintiffs 442 Europe Street Baton Rouge, Louisiana 70802 Telephone: (504) 383-8851 TRUE COPY I CERTIFY ATTEST: V. BAILEY THOMAS, CLERK is) GUADALUPE S. PINSIN Deputy Clerk 26a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION MARIA EMILIA FAMILIA de BOOM, ET AL versus C.A. No. G-77-28 AROSA MERCANTIL, S.A., ET AL BEFORE The Honorable FINIS E. COWAN, District Judge Filed: May 1, 1979 TRANSCRIPT OF PROCEEDINGS OF MAY 9, 1978 APPEARANCES Mr. Paul H. Due’ and Mr. Mike Palminter, 442 Europe Street, Baton Rouge, Louisiana, appearing for the plaintiffs. Mr. Terry P. Ayre of the law firm of Messrs. Brown, Sims & Ayre, 2000 South Post Oak Road, Suite 1735, Houston, Texas, appearing for defendants Arosa Mer- cantil $.A., and Inversiones Calmer S.A. Mr. William H. Seele, 1314 Texas Avenue, Houston, Texas, appearing for defendant Farovi Shipping Com- pany. 27a [3] PROCEEDINGS THE COURT: All right. Let the record reflect that in connection with G-77-28 we went onthe record this morning and commenced a hearing in connection with the proof of damages inconnection witha judgment for failure to make discovery and interlocutory default previously entered against — it’s Arosa, isn’t it? MR. AYRE: Yes, sir. THE COURT: Arosa Mercantil S.A., and counsel for defendant Arosa filed and argued a motion to set aside the default. The Court refrains from setting aside the default and overrules the defendant Arosa’s motion toset aside the default and thereupon the plaintiffs came on and stated that they wished to introduce in evidence certain dep- osition testimony. 50, Mr. Palminter, I’ll ask you to go ahead, please, sir, and introduce such evidence as you wish tointroducein connection with your proof of damages. MR. PALMINTER: Your Honor, for the conveni- ence of the Court, at Mr. Ayre’s suggestion, what we have done is to join all of the [4] depositions by family. In other words each deposition pertains to the individ- ual deceased seaman. We can offer them in global. 28a THE COURT: Yes, go ahead and offer them in global if you would. MR. PALMINTER: There are 10 depositions. THE COURT: State what the names of the depo- nents are ineachinstance and which decedent or claim. MR. PALMINTER: The decedent, Hugo Boom Martinez. The depositions of Carlos Eusebio Boom Familia, and the deposition of Maria Emilia Familia de Boom, widow of Hugo Boom Martinez. Second, the deposition of Enamia Fortuna. She is a dependent with a dependent child of Jose Albert Velez. One deposition. Next, the deceased seaman’s name is Roberto Cruz. We have the deposition of Rosa Cruz, the decedent’s mother, and the deposition of Juan Mercedes. Next, the deceased seaman is Ramon Carasco. We have the deposition of Olga Hernandez, whois a dependent with 10 dependent [5] children, and we have the deposition of Carmen Nolasco, a dependent mother. Next, the deceased seaman Jose Laluz Martino Sabino, and we have the deposition of Ercilia Marce- 29a lino. She is a dependent with six dependent children of the deceased Jose Laluz Martino Sabino. Next, the deceased seaman Geronimo Encarnacio Figuero. We have the deposition of Pastora Guillandeau, and the name is misspelled on the deposition. She is a de- pendent with four dependent children of the deceased seaman. Next, the deceased seaman Leon Leazard Chevalier. And this deposition, this set, we took the deposition of one major child and there was a stipulation that the re- maining major children would testify similarly, and we have the deposition of that major child who is, by the way, Freddie Ramon Chevalier, and with that we have the wife, Orfelina Mercado, widow of Leazard. Next is the deceased seaman Eduardo Tavarez. We have the deposition of the widow, Maria Pina, widow of Tavarez. Next is the deposition pertaining [6] to the deceased Luis Felipe Astico. And this group of depositions we have four, and first is Ercilia Marte De Los Santos. Also, Eusebia Astoscio. Also, Maria Alejandrina, Leon Garcia. Also, the deposition of Ramonita Mendez. The deceased seaman Ramon Santana, and we have the deposition of Victoria Santana, dependent mother 30a of the deceased seaman. And Fatima Augustina Mon- egro, widow of Santana. Those are the depositions, your Honor, and to each deposition by stipulation there are attached docu- ments supporting the ages, birth, extracts and also matrimonial extracts in the public records in the Dominican Republic all in accordance with Dominican Law. THE COURT: Do the defendants have any evi- dence in connection with the damage issue at all? MR. SEELE: These depositions are being offered solely concerning the decision to be entered against the defendant in default? THE COURT: Correct. MR. SEELE: And for noother purpose at this time? THE COURT: Correct. [7] MR. SEELE: All right. We would have no testi- mony to offer then. THE COURT: All right. The Court also will cstablish the following schedule for the filing of memoranda. 3la The plaintiffs will file within two days a memoran- dum summarizing with reference to each decedent and the one survivor, the age of the decedents, the best in- formation available on the record concerning his earn- ings, the number of his dependents, the regularity of his work and any other pertinent matters concerning an award of damages, including the amount claimed on behalf of each decedent. And the defendants will have until one week from to- day, which will be May 16, in order to file a response making such arguments as seem appropriate concern- ing the damages to be awarded with reference to each decedent and the one survivor. Gentlemen, is there anything else we need to put on the record in connection with the matter today? MR. DUE’: Nothing further in connection with Arosa Mercantil. We, of course, [8] have also asked the Court for relief in the nature of a default judgment against defendant Arosa Mercantil S.A., and we would in that connection offer again — of course, we have a memorandum insupport of that, all of which appears in the record, but to indicate again the need for it we respectfully address the Court’s attention to the most pertinent interrogatory asking for who are the stock- holders and equitable owners of this company, and the defendants answer, after low these many months of pendency of this suit, which! don’t have in front of me, 32a but of course, the record speaks for itself, the answer was that they couldn’t give us the information. THE COURT: What is your response to that, this motion for default against your client, Mr. Ayre? MR. AYRE: We have answered all the interroga- tories with all the information that’s available to us. THE COURT: When you say “available to us,” you mean available to counsel, don’t you? MR. AYRE: That’s correct. THE COURT: But you still have not given to the plaintiffs the names of the owners of the [9] vessel? MR. AYRE: Yes, sir, we have When I spoke with Mr. Palminter last week, evidently there is a man in Panama that they want to depose and I have no objec- tion to taking his deposition and finding out whether or not the information given to me is correct or not cor- rect. The only reason we couldn’t go last — I think we were going to take it yesterday in Panama, but as I have been out for two weeks and I just couldn’t simply go Sunday to take that deposition. As far as I know the information we have supplied with respect to stock ownership is correct. | have noin- formation to the contrary. 33a THE COURT: I am not clear, Mr. Due’, exactly what it is you have not been furnished. MR. AYRE: I think we have given you the stock — MR. DUE’: Let me look at the record and I'll show you my problem. MR. AYRE: I have the answers here. There is the interrogatory right there. No. 2. MR. DUE’: Your Honor, I haven’t found it in the suit record. If I can pass this file copy to the Court at this time with reference [10] toInterrogatory No. 2, it asks is it a corporation, if so, state the date, citizenship, et cetera, and the names of the stockholders. And the answer, “Defendant is unable at this time to answer this interrogatory. As soon as this information is avail- able.” THE COURT: Let me read into the record the interrogatory and the answer. What date was this interrogatory served? MR. DUE’: It was filed on September 7, 1977. THE COURT: All right. And the answer? MR. DUE’: lam trying to findit.I don’t see it in this duplicate file. 34a THE COURT: Here, your file copy would indicate it. MR. DUE’: April 14, 1978. THE COURT: Is that an accurate date as far as you know, Mr. Ayre? MR. AYRE: As far as I know, your Honor, yes. THE COURT: And the interrogatory, for the rec- ord, reads: “QUESTION: Is Inversiones Calmer [11] a cor- poration, if so, state the date and place of incorporation, citizenship of the corporation, whether the corporation is the successor of any other business entity, and if so the full name of all such predecessors within five years prior to the date of acts sued on; the full name, resi- dence, address and citizenship of all stockholders of In- versiones within five years prior to the date of the acci- dent and sued on upthrough the date of the accident.” And the answer to this interrogatory, “As soon as this information is available we will immediately sup- plement this interrogatory.” Let me ask you, Mr. Ayre, I don’t in any way chal- lenge your good faith, and as an officer of the Court I have complete faith in your integrity. Why is it your client in this lawsuit, which has been on file now a long 35a time, hasn’t been able to furnish at least some of this rather fundamental! information? MR. AYRE: They have been able to supply it and | virtually cannot respond to why the stockholders, the names or identities of the stockholders have been with- held. THE COURT: All right. In view of [12] that then, Mr. Ayre, I don’t want this to reflect any discredit on you because I don’t feel it reflects any discredit on you, but I am going to grant the plaintiffs’ motion for a de- fault for failure to make discovery against Inversiones Calmer S.A. And we will ask you to submit, Mr. Due’, an order to that effect within two days in accordance with your other papers that you are to submit within two days, and a judgment which I will enter will run against both Arosa Mercantil S.A. and Inversiones Calmer S.A. Now, is there anything else? I’m going to take your motion under advisement, Mr. Seele. MR. SEELE: If I might just speak to the motion. THE COURT: Goright ahead. Would you give me your first name? MR. SEELE: William. 36a THE COURT: William. All right. Go ahead, Mr. Seele. The Court also has under consideration today Mr. Seele’s motion which is a motion to dismiss for want of jurisdiction. MR. SEELE: Your Honor, the motion is based on three parts. It includes a Rule 12-B[13] motion for fail- ure to state a cause of action against this defendant. That is primarily based on our knowledge and the in- formation that’s been provided to us, and we under- stand is accurate from our client that the vessel was not owned — THE COURT: 12-B motion has to be predicated on the pleadings. 12-B motion to dismiss has to be predi- cated on the pleadings. MR. SEELE: I undersiand, your Honor. THE COURT: Well, you’re not talking about the pleadings — MR. SEELE: I just want to speak to that first and then go into the other portion to bring something up to the Court. THE COURT: Right. MR.SEELE: We donot own, operate or control the vessel UKOLA. That is one of our positions. 37a Secondly, we have moved to dismiss, to quash serv- ice of the process upon the Farovi Shipping Company, and this was made sometime in September of 1977 by serving Gulf Coast Shipping Corporation which was alleged to be their agent. Gulf Coast Shipping Corpora- tion was a sub-agent for [14] the chartered vessel, or for the charterer of the vessel. They were not appoint- ed as an agent for service of process. And there isa line of cases that hold that a port or agent cannot serve un- less there’s been specific authority granted. Thirdly, our motion also is to dismiss because we submit that we are a Florida corporation, organized, existing under the laws of the State of Florida. We are not doing business in Texas, have not done business in Texas, and that we are not amenable to personal juris- diction of this court in accordance — even if service was tried under 2031-B in thes revise statutes. We have supported that by an affidavit by Frank Rosa who is the president of Farovi Shipping Corporation which is in support of the motion. That is the crux of our motion that we filed on November 1st of 1977 which, I believe, we brought to the Court’s attention in March of ’78 at the last hear- ing. There were some interrogatories propounded to us, we have answered those interrogatories yesterday in the mail, and we now have received some opposition to 38a the motion on the basis of the interrogatories. This is the first notice [15] we had, and that was yesterday, that our interrogatories were, according to Mr. Due’, not sufficient. I bring this up because I am sure he is go- ing to reply in that vein. THE COURT: Your interrogatories or your answers to interrogatories? MR. SEELE: Our answers to interrogatories. We have answered them to the best of our ability, who is the president and the officers of Farovi Shipping Cor- poration. We contend that we are not amenable to the jurisdiction of this Court and this litigation is pending there. The litigation pending in Florida, we are amen- able to the jurisdiction of Florida. We have been served, we have appeared in Florida. It would seem to us to have this case tried in Florida as to Farovi and not here in Texas where we have no contacts. THE COURT: What's your response to that, Mr. Due’? ‘ MR. DUE’: We get back again, may it please the Court, to the real question of whois the equitable own- er of the vessel UKOLA. We, of course, are in opposi- tion to the motion to dismiss and would at this time offer the discovery depositions that were taken of the Farovi people {16] in Florida, being more particularly — 39a MR. PALMINTER: They may be outside, your Honor. MR. DUE’: lamsorry, your Honor. Significantly in the depositions and more particularly in the file of the situation where we have various interests appearing. In the Coast Guard record — once the ship went down there is a Coast Guard notation which we, of course, attach to our memorandum, and it’s a com- munication that the Coast Guard received from George Rosa, who is one of the officers of Farovi, with their telephone number, and “UKOLA was our ship” is the quote from it. I say that for this reason, because, of course, if in- deed Farovi is the owner behind the scenes of this situ- ation then, of course, all of the activity that was done which occurred here in Texas, a substantial trade of business conducted in this jurisdiction, then, of course, those acts likewise become the acts of Farovi. The real question is who the equitable owner of the vessel UKOLA is and was Farovi truly an agent as op- posed toanequitable owner init. That question has still not »een [17] resolved through any dilatory aspect, from our standpoint. Another interesting point brought out in the files it- self of Farovi in Miami was a notation appearing there after the vessel went down notifying San Miguel of the 40a occurrence and then as a response, | forgot the exact language because it appears in attachments to the dep- osition which the Farovi lawyers in Miami are under a Court order to produce for us and we have not gotten them yet but, anyway, the point about San Miguel who is an American citizen who lives in Puerto Rico, and we have been trying to get his deposition in San Juan, Puerto Rico and he has been dodging us on the thing, he failed to show, supposed to be a health situation. Now, the question was asked to Mr. Frank Rosa, Sr., the president, and to Junior “Do you know San Miguel?” “No, I don’t.” Then he is confronted with the impeachable infor- mation in his file and this is on this particular vessel after the accident occurred, and, of course, the four corners of the deposition will speak for themselves. The point being there [18] has not been the candor and the cooperation and the full disclosure on the part of Farovi for the Court or for any of us. THE COURT: I'll overrule Farovi’s motion at this time, and submit me an order on that. I'll give you leave to urge it against Mr. Seele when the facts are fully de- veloped. Is there anything else anyone wants to put on the record with reference to this matter today? 4la I take it by your silence that there is not, and so this hearing will end. REPORTER'S CERTIFICATE I, F. Neil Robinson, Official Court Reporter for the United States District Court for the Southern District of Texas, appointed pursuant to the provisions of Title 28, L ited States Code, Section 753, do hereby certify that the foregoing is a true and correct manuscript of the proceedings had in the within entitled and num- bered cause ou the date hereinbefore set forth. I do fur- ther ce-tify that the foregoing transcript has been pre- pared by me or under my direction. Is| F. Neil Robinson F. Neil Robinson Official Court Reporter 1917 Bank of the Southwest Bldg. Houston, Texas 77002 42a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION MARIA FAMILIA DE BOOM, ETC, et al, Plaintiffs, versus C.A. No. C-77-28 AROSA MERCANTILE, S.A., et al, Defendants. MEMORANDUM OPINION AND FINDINGS OF FACT RELATING TO DAMAGES ASSESSED IN CONNEC- TION WITH DEFAULT ENTERED AGAINST AROSA AND INVERSIONES CALMER In connection with the assessment of damages attributable to the deaths of the 9 seamen in question and the damage to 1 survivor, the Court has before it the deposition testimony relating to each of the indi- vidual decedents. The damage findings expressed here- in are predicated upon this deposition testimony and the inferences which this Court draws from that testi- mony. EVIDENCE PRESENTED AND GENERAL CONCLUSIONS The Court here makes findings of fact based upon abbreviated deposition testimony of relatives and de- 43a pendents of the decedents, all seamen domiciled in the Dominican Republic. Assessments of this nature would be difficult, even if the witnesses were before the Court in person. The difficulty is multiplied by the fact that the decision must be based on deposition testi- mony. In addition, it seems that either the translation or the transcript of the depositions was far from ideal. In addition, the difficulty is compounded by the fact that defendants have offered no evidence and engaged in only superficial cross-examination of the witnesses. Nevertheless, there are sufficient facts before the Court, in admissible form, to enable the Court to make the findings of fact expressed herein. The Court believes it appropriate to state initially certain general conclusions. The pecuniary value of these decedents’ lives is ap- parently considerably less than the pecuniary value of lives of seamen residing in more developed societies. The lives of these seamen were, of course, infinitely valuable to themselves and to their beneficiaries; how- ever, from a pecuniary standpoint, these decedents and the beneficiaries lived and live in a different world. This perception may best be illustrated by the facts relating to Mr. Hugo Boom. Hugo Boom was a stable, hard working, steadily employed, seaman, married, a good father to his children. He supported his family of seven on a salary of approximately $300 per monthand made, at the maximum, pecuniary contributions to the sup- 44a port of his family of about $3,300 per year. Similarly, Roman Nolosco supported eleven dependents by con- tributions of $175 per month. This Court concludes that a dollar in the Dominican Republic is, in compara- tive terms, much more valuable than the same dollar in the Continental United States. In fact, it would appear that a dollar in the Dominican Republic is worth about three times as much, in practical terms, as a dollar in the Continental United States. For this reason, as well as for the other reasons stated herein, the awards of dam- ages set forth in these findings of fact may seem exces- sively conservative in the light of cases like Denis v. Cen- tral Gulf, 323 F.S. 943 (Eastern District of Louisiana, 1971); Law v. C. Drilling Corporation, 510 F.2nd 424 (Sth Cir. 1975); Hamilton v. Canal Barge Lines, 395 F.Supp. 978 (Eastern District of Louisiana, 1975); and Higginbotham 0. Mobil Oil Corporation, 360 F.Supp. 1140 (Western Dis- trict of Louisiana, 1973). This Court will attempt to apply here the same basic analysis contained in the cases cited; but this Court's findings are predicated upon the hypothesis that the Dominican Republic is a different economic world. In the event the Court is mistaken in the basic con- clusion stated in the previous paragraph, the Court will allow counsel to re-open the evidence to present testi- mony from economists or other experts to demon- strate the error in the conclusions stated. Another general conclusion which should be stated: it is apparent from the reading of the depositions that 45a there are vast differences in the character and tenden- cies of the decedents. Hugo Boom, for example, was a stable, married family man. Several of the decedents were living with women to whom they were not mar- ried or the fathers of numerous children, who have never been legitimized. On the other hand, the deposi- tion testimony indicates that many of these relation- ships were stable and that the decedents were, in many instances, devoted fathers to the children who were produced from these unions. The Court must, to the extent possible from the evidence presented, make rational distinctions between the decedents. With reference to the question of pain and suffer- ing, the record before the Court is far from crystal clear. On the other hand, it certainly appears to the Court more probable than not that each of the dece- dents, for at least some period of time before his death, was conscious, did suffer from some period of intense pain, suffering, and mental anguish. There would appear to be no reason for distinctions between the various decedents insofar as the assignment of the pecuniary value for pain andsuffering is concerned. On the authority of Law v. C. Drilling Corporation, supra., it would appear that some figure in the range of $15,000 might be appropriate for the pain and suffering attrib- utable to the death of each decedent; however, as stated before, the Dominican Republic is a different eco- nomic world, and the Court has therefore determined (perhaps arbitrarily), that the damages for pain and 46a suffering attributable to each decedent should not ex- ceed $5,000 per decedent. The Court finds the record before the Court less than totally adequate; and for that reason, as set forth in more detail below, the Court will allow the parties to re-open the evidence, if they elect to do so in order to clarify those aspects of the evidence which trouble the Court. The inadequacies fall into several categories. First, plaintiffs allege that the Court should assume that each of the decedents would have a work expec- tancy predicated on the assumption that the decedent would work to age 64. It is apparent from the deposi- tions that the decedents lived under conditions which, in our society, would be deemed primitive, and were probably not consistently afforded the degree of med- ical care normal for persons regularly employed with- in the continental limits of the United States. Accord- ingly, it seems very doubtful that a Dominican seaman has the same life or work expectancy as would the nor- mal American worker. In the absence of evidence to the contrary, however, the Court must assume a work ex- pectancy based on the assumption that the Dominican seaman would work to approximately age 64. There is another aspect in which the record before the Court is far from complete. This relates to the manner of applying the discount factor in determining the present cash value of the decedents’ future earn- ings. Inthis connection, the Court judicially knows, ina 47a very general way, that if a person has a work or life ex- pectancy of approximately 20 years, the present cash value of his earnings is approximately one-half of that figure which would be obtained by multiplying a dece- dent’s annual earnings by the number of years left in his work expectancy. The Court has applied this rough rule of thumb in Decedent Hugo Boom Martinez. — Hugo Boom Martinez, age 46, was second cook aboard the vessel in question. He had been a seaman for approximately 24 years and earned approximately $333 per month, contributing approximately $300 to the support of his family. Martinez, at the time of his death, had a stable mar- riage to Maria Emilia Familia de Boom, the first named plaintiff in this case, and the couple were the parents of five children ranging in age from Carlos, 24 to Miguel Boom Familia, age 7. Mrs. Boom testified that her husband provided her $300 per month almost every month. The court has computed loss of support in the following manner: $300 per month for 18 years is $64,800. The approxi- mate present cash value of $300 per month for 18 years is $32,400, which has been divided between the bene- ficiaries in the manner set forth in the specific find- ings. 48a The court makes the following findings of fact with reference to this decedent. A. Maria Emilia Familia deBoom (widow of Hugo Boom Martinez): 1. Loss of society Loss of services Loss of support (% of total) > ©» N Conscious pain and suffering prior to death (1/6 of total) $15,000.00 2,287.00 16,200.00 833.00 B. Miguel Antonio (son, six): 1. Loss of society 2. Loss of nurture and guidance (12 years) Loss of support (12/29 of half) Conscious pain and suffering (1/6 of total) $34,320.00 $10,000.00 6,000.00 6,642.00 833.00 C. Carlos Miguel (son, nine): 1. Loss of society 2. Loss of nurture and guidance (9 years) 3. Loss of support (9/29 of half) 4. Conscious pain and suffering (1/6 of total) $23,475.00 $10,000.00 4,500.00 5,022.00 833.00 D. Candida Rosa (daughter, fourteen): 1. Loss of society 2. Loss of nurture and guidance (4 years) $20,355.00 $10,000.00 2,000.00 49a 3. Loss of support (4/29 of total) 2,268.00 4. Conscious pain and suffering (1/6 of total) 833.00 TOTAL ....+s.0s950eeeen Naas as $15,101.00 E. Narcisco (son, fourteen): | 1. Loss of society $10,000.00 2. Loss of nurture and guidance (4 years) 2,000.00 Loss of support (4/29 of total) 2,268.00 4. Conscious pain and suffering (1/6 of total) 833.00 TOTAL ....«scs asain esa es $15,101.00 F. Carlos 1. Loss of society $10,000.00 2. Conscious pain and suffering (1/6 of total) 833.00 TOTAL ....«dcnsaleuieeneeieaaenaie ss 6+ $10,833.00 Decedent Jose Alberto Velez. — Jose Alberto Velez was, at the time of his death, 43 years old. The witness, who seeks to establish a claim based upon contributions from Jose Alberto Velez (hereinafter “this decedent”), was Inamina Fortuna. Inamina Fortuna was not married to Jose Alberto Velez. Inamina Fortuna testified that she was the wife of the decedent, but admitted that no ceremonial wed- ding had occurred. In addition, the deposition does not establish the factual elements necessary to conclude that a common-law marriage existed. 50a The witness had living with her a 14 year old girl named Milady Fortuna. The decedent was not the father of Milady Fortuna, but, according to the wit- ness, made monetary contributions to the witness and to Milady Fortuna. The record is confusing because Inamina Fortuna initially testified that Jose Velez was the father of Milady Fortuna and then testified that he was not. The witness claimed that Jose Alberto Velez sent money, in the range of $150 per month, to her regu- larly. On the other hand, two letters placed in evidence do not transmit $150. One sends 60 pesos and the other sends $100. The witness also testified “last time he was overseas he sent me $100.” (Depos. pg. 6) The witness did not know how long the decedent had been a seaman, how much time out of the year the de- cedent spent in her home, whether the decedent had other relatives or other children, and apparently knew nothing of the details of the decedent’s life. In addition, from the testimony of the witness, the Court is able to conclude only that the decedent prob- ably made casual and sporadic monetary contributions to the witness in sums that cannot be measured with any degree of accuracy. The testimony of this witness is not sufficient for this Court to conclude that in reasonable probability this witness and Milady For- tuna have a legitimate claim for benefits from this de- cedent’s death. Unless additional evidence is offered 5la with reference to this decedent, therefore, it is the Court’s intention to enter a take nothing judgment in connection with the claimed beneficiaries of this dece- dent. The judgment to be prepared should provide that the purported beneficiaries of Jose Alberto Velez take nothing. Decedent Luis Felipe Astacio. — This decedent was a 44 year old seaman who had an apparently stable relationship with Maria Garcia for three years before his death. Decedent and Maria Gar- cia were the parents of Cecilia Astacio. Decedent, ac- cording to the deposition testimony, provided approx- imately $250 per month toa household in which he re- sided with Maria Garcia, Ercilia Santos and his daugh- ter. It seems rational and consistent with the evidence to attribute $75 per month to the support of dece- dent’s daughter Cecilia Astacio. Decedent also acted as an attentive father to daughter Cecilia and spent his time in this household. Decedent’ other daughter, Santa Bienvenida Men- dez, is the child of decedent and Romanita Mendez. De- cedent had not lived with Romanita Mendez since 1970. Decedent provided $75 per month support for this daughter, had a good relationship with the daugh- ter but had not visited the daughter for five months be- fore his death. It seems probable that decedent’s prin- 52a cipal efforts as a father were directed toward the household in which he resided at the time of his death. Decedent’s mother is Eusebia Astacio, whom he visited monthly and to whom he occasionally made financial contributions of indeterminate amounts. The court’s reasoning on loss of support attribut- able to this decedent is: Decedent was contributing approximately $75 per month to the support of each of his daughters, or $900 per year. The percent cash value of $900 per year for 17 years is approximately $7,500. The present cash value of $900 per year for S years is approximately $4,000. The evidence of financial regular contributions to de- cedent’s mother is not sufficient to allow the court to quantify such contributions. A. Julia Cecilia (daughter of Luis Felipe Astacio; 1 year old at time of death): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (17 years) 8,500.00 Loss of support 7,500.00 Conscious pain and suffering prior to death (% of total) ___ 1,666.00 NN opie eee eee eee i ce ee ea $27,666.00 53a B. Santa Bienvenida (daughter of Luis Felipe Astacio; 13 years old at time of death): 1. Loss of society $ 1,000.00 2. Loss of nurture and guidance (5 years) 1,000.00 Loss of support 4,000.00 Conscious pain and suffering prior to death (1/3 of total) 1,666.00 ESE tb cd pe Reasdkcne ews casa che cces aes $ 7,666.00 C. Eusebia Astacio (mother): 1. Loss of society $ 2,000.00 2. Loss of support 3. Conscious pain and suffering prior to death (1/3 of total) 1,666.00 EE oe Ce eee tents a e e Y $ 3,666.00 Decedent Geronimo Encarnacion Figuereo. — This decedent, 47, apparently had a stable relation- ship with the mother of his five children and contrib- uted $300 per month regularly to his family. The court’s reasoning on support is: The approximate pres- ent cash value of $3600 per annum for 17 years is approximately $32,000. One half of this ($16,000) would have gone to his children. With reference to this decedent, the court finds the following damages: 54a A. Anthony de Jesus (son, one year): x 2. TOTAL Loss of society Loss of nurture and guidance (18 years) Loss of support (18/66 of one-half) Conscious pain and suffering (%4 of total) rate a ee ee ee Oe ee B. Pablo Francisco (son, one year): 1. ys Loss of society Loss of nurture and guidance (17 years) Loss of support (17/66 of total) Conscious pain and suffering (% of total) ae ee ee ee Pe ee ee C. Cayetano Miguel (son, two years): 2. 2. TOTAL Loss of society Loss of nurture and guidance (16 years) Loss of support (16/66 of total) Conscious pain and suffering (\% of total) D. Virginia Cipriano (daughter, three): 1. 2. Loss of society Loss of nurture and guidance (15 years) Loss of support (15/66 of total) $10,000.00 9,000.00 4,320.00 ___1,666.00 $24,986.00 $10,000.00 8,500.00 4,160.00 _____1,644.00 $24,304.00 $10,000.00 8,000.00 $10,000.00 7,500.00 3,680.00 55a 4. Conscious pain and suffering (% of total) 1,644.00 PS fg ee a can eats an etalg ale $22,824.00 Decedent Ramon Carrasco Nolasco. — The deposition testimony proves that this decedent, age 47, much like Roberto Cruz (see discussion infra), was a Stable seaman, consistently employed who had lived with Olga Hernandez for 16 years and had sup- ported and been an attentive father to their ten chil- dren as well as making financial contributions, the amount of whichis not determinable, to the support of his mother. He provided $175 per month in support of his family. The court’s computation of loss is based upon the following reasoning: At least one-third of the amount provided must have gone to the mother of these children. The balance may appropriately be divid- ed as indicated below, based on the assumption that the present cash value of $175 per month for 16 years is ap- proximately $22,000. The court finds the following facts with reference to the beneficiaries of this dece- dent: A. Antonio Ramon (posthumous son): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (18 years) 9,000.00 3. Loss of support (18/109) 3,762.00 56a 4. Conscious pain and suffering (1/11 of total) B. Ramon Antonio (posthumous son): 1. Loss of society 2. Loss of nurture and guidance (18 years) 3. Loss of support (18/109) Conscious pain and suffering (1/11 of total) C. Saraya (daughter, one): 1. Loss of society 2. Loss of nurture and guidance (17 years) 3. Loss of support (14/109 of total) aes 6.8 2S 8.6.0 6:6 6 OS 9.8 9.6.4.2. 02°64 89 $10,000.00 9,000.00 3,769.00 $10,000.00 7,000.00 2,882.00 4. Conscious pain and suffering prior to death (1/11 of total) D. Roberto (son, five): 1. Loss of society 2. Loss of nurture and guidance (13 years) 3. Loss of support (13/109 of total) 4. Conscious pain and suffering prior to death E. July (daughter, ten): 1. Loss of society 2. Loss of nurture and guidance (8 years) ee a. ke a oe mw ee ee oe ee ee oe ee ee ee ee 454.00 ...- $20,336.00 $10,000.00 6,500.00 2,661.00 —- | .,.. $19,615.00 $10,000.00 4,000.00 57a 3. Loss of support (8/109 of tota’ 1,552.00 4. Conscious pain and suffering prior to death (1/11 of total) 454.00 Pita f | Serer rrrrrerr rer eT rest err es $16,006.00 F. Froncia (daughter, ten): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (8 years) 4,000.00 3. Loss of support (8/109 of total) 1,552.00 4. Conscious pain and suffering prior to death (1/11 of total) 454.00 pi OF * ARAB RR RGR rire Cee re rere eer eee fe $16,006.00 G. Miguelina (daughter, 12): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (6 years) 3,000.00 3. Loss of support (6/109 of total) 1,330.00 4. Conscious pain and suffering prior to death (1/11 of total) ____ 454.00 | rrr eer re eT ee rT rere. $14,784.00 H. Xionara (daughter, 14): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (4 years) 2,000.00 3. Loss of support (4/109 of total) 887.00 4. Conscious pain and suffering prior to death (1/11 of total) _ «454.00 Ee ey tre or aS we nana ead $13,341.00 58a I. Adalgesia (daughter, 15): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (3 years) 1,500.00 3. Loss of support (3/109 of total) 665.00 4. Conscious pain and suffering prior to death (1/11 of total) _____ 454.00 itd Sere erent rt str eer eee $12,619.00 J. Carmen Nolasco (mother): 1. Loss of society $ 1,666.00 2. Loss of support 3. Conscious pain and suffering prior to death (1/11 of total) 454.00 WE ase ease eubadebsareweceeew ccs $ 2,120.00 Decedent Jose Laluz Martino Salina. — Salina, a 47 year old janitor aboard ship, had an ap- parently stable relationship with deponent Ercilla Mar- celino and the couple had five living children at the time of decedent’s death. Salina contributed $150 per month to the support of his family. The court’s reasoning on loss of support is that the present cash value of $150 per month for 17 years is approximately $20,000. Approximately one-third of this amount ($6,666) is logically attributable to the mother and the balance may be divided between the five children. The dam- ages found by the Court attributable to this decedent are: 59a A. Jose (son, 9): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (9 years) 4,500.00 3. Loss of support (9/27 of total) 7,920.00 4. Conscious pain and suffering prior to death (1/6 of total) 833.00 NEO, euNeeskodswencseassavscvessecess $23,253.00 B. Aljondrina (daughter, 10): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (8 years) 4,000.00 3. Loss of support (8/27 of total) 7,200.00 4. Conscious pain and suffering (1/6 of total) 833.00 MEE, b0N50c0erseoestrsesscenussees see $22,033.00 C. Eduardo (son, 13): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (S years) 2,500.00 3. Loss of support (5/27 of total) 4,560.00 4. Conscious pain and suffering (1/6 of total) 833.00 MEMES wna sehsiesesserornessteueseasces $17,893.00 D. Porfiro (son, 15): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (3 years) 1,500.00 3. Loss of support (3/27 of total) 2,640.00 60a 4. Conscious pain and suffering (1/6 of total) 833.00 EE SURE E ieee er Sb rs S ceca seseesenes $14,973.00 E. Maria (daughter, 16): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (2 years) 1,000.00 3. Loss of support (2/27 of total) 1,680.00 4. Conscious pain and suffering (1/6 of total) 833.00 hades hana svd odsde ues eses $13,513.00 F. Maria Salina (mother): 1. Loss of society $1,666.00 2. Loss of support 240.00 3. Conscious pain and suffering 833.00 RO $ 2,739.00 Decedent Roberto Cruz. — The deposition testimony of Rosa Cruz and Juana Mercedes reveals that Roberto Cruz, 40, was a stable seaman consistently contributing $185 per month to Juana Mercedes, with whom he had lived for 18 years, and their six children. This decedent also made regular $15 per month payments to his mother, Rosa. Al- though not married, this decedent had a stable rela- tionship, an apparently consistent work history and acted as a father to his six children. The court’s reason- ing with reference to loss of support is: The present 61a cash value of $185 per month for 24 years is approxi- mately $27,000. Assuming that two-thirds of this was attributable to decedent’s children is $17,820. In con- formity with the general conclusions stated above the court makes the following findings with reference to this decedent: A. Josaline (daughter, eight): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (10 years) 5,000.00 3. Loss of support (10/33 of total) 5,346.00 4. Conscious pain and suffering prior to death (1/7 of total of $5,000) _ sss: 714.00 ft oA eee enn eee ee ee eee $21,060.00 B. Angel (son, nine): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (9 years) 4,500.00 3. Loss of support (9/33 of total) 4,811.00 4. Conscious pain and suffering prior to death (1/7 of total) ___714.00 oe | See rere eee are $20,025.00 C. Ecly (son, eleven): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (7 years) 3,500.00 3. Loss of support (7/33 of total) 3,742.00 62a 4. Conscious pain and suffering prior to death (1/7 of total) 714.00 PE 666 Sy ve ein aG saab eueecae seu enss es $17,956.00 D. Jose (son, fourteen) 1. Loss of society $10,000.00 2. Loss of nurture and guidance (4 years) 2,000.00 3. Loss of support (4/33 of total) 2,138.00 4. Conscious pain and suffering prior to death (1/7 of total) 714.00 os Vac CR ows 6400 0068 66 A000 cee $14,852.00 E. Elso (daughter, 16): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (2 years) 3,000.00 3. Loss of support (2/33 of total) 1,069.00 4. Conscious pain and suffering prior to death (1/7 of total) 714.00 ag a ed $14,783.00 F. Aldia (daughter, 17): 1. Loss of society $10,000.00 2. Loss of nurture and guidance (1 year) 500.00 3. Conscious pain and suffering (1/7 of total) a 714.00 eS ee $11,214.00 G. Rosa Cruz [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1280%3A1. Public record. Not legal advice.