Appendix — Alvestad v. Monsanto Co.

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, ET AL

Plaintiffs :

vs. : CIVIL ACTION NO.

: H-79-1883

MONSANTO COMPANY, :

ET AL, : ‘

Defendants ;

MEMORANDUM AND ORDER:

This action was filed by Plaintiff, a

Norwegian national and personal represen-

tative of the deceased, for monetary damages

due to the death of Aage Lasse Alvestad.

It is alleged that decedent was working

off the Borgny Dolphin, a semi-submersible

drilling rig, in the English sector of the

North Sea and that his death was due to the

negligence of Defendants and unseaworthiness

of the rig. Recovery is sought pursuant to

the Jones Act, 46 U.S.C.A. 688, Death on the

High Seas Act, 46 U.S.C.A. 761 et seg., and

general maritime law. Currently pending

before the Court is Defendants’ motion to

dismiss based on limitations, and the un-

availability of American law and the appli-

cability of Norwegian and English law.

Although the death occurred on the high

seas, the Death on the High Seas Act ("DOHSA")

is inapplicable since the suit was instituted

after the statute's two-year limitation

period expirea.? 46 U.S.C. 763; Hassan v.

A. M. Landry & Son, Inc., 321 F.2d 570,

571 (5th Cir. 1963). Furthermore, since

DOHSA provides the “exclusive” remedy for

death on the high seas, Hlodan v. Ohio Barge

Line, Inc., 611 F.2d 71, 75 (5th Cir. 1980),

Plaintiff's remedy under general maritime

law is also foreclosed. Id; Mobil Oil Corp.

v. Higginbotham, 436 U.S. 618 (1978); Ivy v.

Security Barge Lines, Inc., 585 F.2d 732

(Sth Cir. 1978), reh. en banc, 606 F.2d 524

(5th Cir. 1979).

*/ the suit was originally instituted on

January 31, 1978, more than two years

after the alleged wrongful death on

March 22, 1975.

«Qe

With respect to the Jones Act claim

(applicable to the death of a seaman on

the high seas. Ivy, supra at 528), as well

as the general maritime and death on the

high seas 2 pee assuming for the sake

of argument that the DOHSA claim was timely

filed, chcice of law considerations2/ point

to the application of foreign law, not

American law, in view of the substantial

contacts with Norway and England. "The

broad principles of choice of law established

for Jones Act cases in Lauritzen v. Larsen,

345 U.S. 571 (1953), were declared equally

applicable to cases arising under the general

maritime law in Romero v. International

Operating Co., 358 U.S. 354, 381-4 (1959),

and have been applied to suits brought under

the Death on the High Seas Act. Symonette

27 the seven well-known factors of Lauritzen

are: (1) Place of the wrongful act,

Law of the Flag, (3) Allegiance or Domi-

cile of the Injured, (4) Allegiance of

the Defendant Shipowner, (5) Place of

Contract, (6) Inaccessibility of Foreign

Forum, and (7) The Law of the Forum. An

eighth factor added to the list in Hellenic

Lines v. Rhoditis, 398 U.S. 306 (1970), is

e of operations.

-3-

Shipyards Ltd. v. Clark, 365 F.2d 464 (5th

Cir. 1966)." Fitzgerald v. Texaco, 521 F.2d

448, 454 (2nd Cir. 1975), cert. denied, 423

U.S. 1052 (1976). Also see Ying Shive Jyu

Fen v. Sanko Kisen (USA) Corp., 441 F.Supp.

45 (S.D. N.¥. 1977). Additionally, in view

of the fact that dismissal of the foregoing

has been explained not only in terms of lack

of subject matter jurisdiction (particularly

with respect to a Jones Act count) but in

terms of forum non convenience (particularly

with respect to general maritime and Death

on the High Seas counts), or both, see

Gilmore & Black, The Law of Admiralty, 481-

482, 294 (2nd ed. 1975); Ying Shive Jyu Fen

v. Sanka Kisen (USA) Corp., supra, an appli-

cation of the factors in the landmark forum

non convenience case of Gulf Oil Corp. v.

Gilbert>/, 330 U.S. 501 (1947), is necessary

/ "Important considerations are the rela-

tive ease of access to sources of proof;

availability of ulsory process for

attendance of unwilling, and the cost

of obtaining attendance of willing,

witnesses; possibility of view of premises,

-4-

and compels this court to alternatively

decline jurisdiction. See Frangiskatos v.

Kon Kar Maritime Enterprises, 471 F.2d 714

(2nd Cir. 1972).

For the foregoing reasons this action is

DISMISSED.

Done at Houston, Texas, this 20th day of

August, 1980.

SIGNED: /NORMAN W. BLACK

UNITED STATES DISTRICT

JUDGE

37 (continued)

if view would be appropriate to the

action; and all other practical problems

that made trial of a case easy,

expedi-

tious, and inexpensive.” 330 U.S. at 508.

-S-

APPENDIX 1A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, ET AL

Plaintiffs, :

vs. ; CIVIL ACTION NO.

MONSANTO COMPANY, ; 8-79-1883

ET AL, :

Defendants :

FINAL JUDGMENT

From a consideration of the pleadings

and materials submitted in this cause, it

is the opinion of this Court that this

action should be and is hereby dismissed.

This is a FINAL JUDGMENT.

Costs will be awarded to the prevailing

party.

Done at Houston, Texas, this 20th day

of August, 1980.

SIGNED:

NORMAN W. BLACK

UNITED STATES DISTRICT

JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, ET AL,

Plaintiffs, :

vs. : CIVIL ACTION NO.

: H-79-1883

MONSANTO COMPANY, :

ET AL, :

Defendants :

| ORDER

Appearances: None

Counsel Representing

Motion (s) : ' Conference

Hearing

Plaintiff's Motion to Neither

Reconsider

Plaintiff filed this action originally

on January 31, 1978. On August 20, 1980,

the Court dismissed the complaint based

upon limitations, lack of subject matter

jurisdiction, and forum non convenience.

At a conference on September 18, 1980,

although Plaintiff argued that he needed

lq |

(a |

> A

more time for discovery, his main argument

was with fifth Circuit precedent.

Additional discovery would not aid

Plaintiff in this matter. Plaintiff's argu-

ment is legal, not factual, and this Court

is not in a position to change Fifth Circuit

law.

Accordingly, Plaintiff's Motion to

Reconsider is DENIED.

SIGNED/

NORMAN W. BLACK

UNITED STATES DISTRICT

JUDGE

Date Order Entered:

9/22/80

ack

APPENDIX 3

MRS. AAGE LASSE :

ALVESTAD, ET AL :

vs. : CIVIL ACTION NO.

- : H-79-1883

MONSANTO COMPANY, $

ET AL :

ORDER

Appearances: None

Counsel Representing

Motion(s): Plaintiff's Conference

second motion for relief Hearing

from judgment Neither x

Since Plaintiff has filed a proper notice

of appeal from the Court's Order of Dismissal,

this Court is without jurisdiction to

consider Plaintiff's repetitious motion.

Kirtland v. J. Ray McDermott & Co., 568

F.2d 1166, 1170 (Sth Cir. 1978); United

States v. Dunbar, 611 F.2d 985, 987 (5th

Cir. 1980); 9 Moore’ Federal Practice,

Paragraph 203.11 at 3-48.

Date Order Entered: SIGNED/NORMAN W. BLACK

16, 19 UNITED STATES

DISTRICT JUDGE

oi! ae

APPENDIX 4

(Prom 671 Federal Reporter, 2d Series):

Mrs. Aage Lasse ALVESTAD, Individually

and as Representative of the Estate of

Aage Lasse Alvestad and Their Minor

Daughter, Plaintiff-Appellant,

MONSANTO COMPANY, et al,

Defendants~-Appellees

Nos. 80-2157, 81-2015

United States Court of Appeals,

Fifth Circuit

April 1, 1982

Appeal was taken from judgment of

the United States District Court for the

Southern District of Texas, at Houston,

Norman W. Black, Jr., dismissing action

arising from death of diver working off a

semi-submersible oil rig in the North Sea

and from order of the district court denying

motion for reconsideration. The Court of

Appeals, Jerre S. Williams, Circuit Judge,

held that: (1) no unique circumstances were

shown justifying relief from timeliness of

requirement of rule requiring that notice of

appeal be filed within 30 days after entry

of judgment or order appealed from, in case

in which motion for new trial was not timely

filed, where trial court had not assured

appellant that her motion for new trial was

timely or that court was extending time for

filing notice of appeal, but at most acknow-

ledged approaching deadline and indicated

that it would try to accommodate appellant

with speedy disposition of her motion, and

(2) district court did not abuse its dis-

cretion in denying motion to reconsider,

under rule governing relief from judgment,

alleging only that the court had mistakenly

interpreted the law.

Affirmed.

**Due to his death on December 22, 1981,

Judge Ainsworth did not participate in.

this decision. The petition for rehearing

is being decided by a quorum. 28 U.S.C.

Section 46(d).

1. Federal Courts ... 668

District court's mere willingness to

entertain tardy motion for new trial

does not relieve prospective appellant

from responsibility for filing timely

notice of appeal. Fed.Rules. Civ.Proc. é

Rule 4, 28 U.S.C.A. .

-2- ryt

t Sg Te SEs aoe! | ete G

2. Federal Courts . . . 670

No unique circumstances were shown

justifying relief from timeliness of require-

ment of rule requiring that notice of appeal

be filed within 30 days after entry of judg-

ment or order appealed from, in case in

which motion for new trial was not timely

filed, where trial court had not assured

appellant that her motion for new trial was

timely or that court was extending time for

filing notice of appeal, but at most acknow-

ledged approaching deadline and indicated

thatit would try to accommodate appellant

with speedy disposition of her motion. F.R.

A.P. Rule 4(a)(1, 4, 5) 28 U.S.C.A.; Fed.

Rules Civ. Proc. Rules 59, 59(b), 60(b), 28

U.S.C.A.

3. Federal Courts ... 825

Review of district court's action deny-

ing motion to reconsider under rule relating

to relief from judgment was confined to

whether denial of motion constituted an

abuse of discretion. Fed.Rules Civ.Proc.

4. Federal Civil Procedure . .. 2656

Rule governing relief from judgment is

not an appropriate avenue for relief from

the trial court's mistakes of law. Fea.

Rules Civ.Proc. Rule 60(b), 28 U.S.C.A.

5. Federal Civil Procedure ... 2656

District court did not abuse its dis-

cretion in denying motion to reconsider,

under rule governing relief from judgment

alleging only that the court had mistakenly

interpreted the law. Fed.Rules Civ.Proc.

Rule 60(b), 28 U.S.C.A.

Law Offices of Benton Musslewhite, Inc.,

Benton Musslewhite, Houston, Texas, Louis

R. Koerner, Jr., New Orleans, La., for

plaintiff-appellant.

Vinson & Elkins, Steven K. DeWolf, Houston,

Texas, for Monsanto Co.

Baker & Botts, Randy McClanahan, Houston

Tex., for Monsanto Oil, Dolphin Inter.,

Inc. ’ S.A.

Appeals from the Writed States: District

Court for the Southern District of Texas.

Before THORNBERRY, TATE and WILLIAMS,

Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

-4-

Aage Lasse Alvestad, a citizen of Norway,

was killed on March 22, 1975, while working

as a diver off the semisubmersible oil rig

Borgney Dolphin in the North Sea. The

Borgney Dolphin was a Norwegian vessel

operating under a contract with Monsanto

Oil Company of the United Kingdom, Inc.

(Monsanto UK), a wholly-owned subsidiary

of the United States-based Monsanto

Company. The 3X Diving Company, Alvestad's

immediate employer, had contracted with

Monsanto UK to provide diving services

for the drilling operation.

Alvestad's widow filed suit against

Monsanto and Monsanto UK in 1978, stating

causes of action under the Jones Act, 46

U.S.C. 688, the Death on the High Seas

Act (DOHSA), 46 U.S.C. 761-767, general

maritime law, and the Texas Wongful Death.

and Survival statutes, Tex.Rev.Civ.Stat.Ann.

arts. 4671-4678, 5525 (Vernon 1940 & Supp.

1980-1981). On August 20, 1980, the district

court granted Monsanto's motion to dismiss

-5-

the action and entered a final judgment to

that effect. In a Memcrandum and Order

filed with the judgment, the court ex-

plained that DOHSA's two-year statute of

limitations had expired prior to institution

of the suit, thereby barring any recovery

under that statute. It further found any

action pursuant to general maritime law

foreclosed because DOHSA is the exclusive

remedy for death on the high seas (citing

Hlodan v. Ohio Barge Line, Inc., 611 F.2d

71, 75 (5th Cir. 1980). The court also

found it necessary to decline jv.isdiction

regardless of the limitations problem be-

cause the lack of sufficient contacts be-

tween the action and this country indicated

that foreign rather than American law should

apply and that a federal district court

would be a forum non conveniens.

It is only with the entry of final judg-

ment against Mrs. Alvestad on August 20, how-

ever, that the critical period of this

ate

procedural history begins. On September 10,

1980, Mrs. Alvestad filed a "Motion to

Reconsider Order Dismissing Cause of Action

and Motion to Reinstate and Motion to Grant

a New Trial Pursuant to Rules 59 and 60 of

(Federal Rules of Civil Procedure).” The

court held a hearing on this motion on

September 18, at which plaintiff argued

that dismissal of the action was premature

because she had not yet completed her dis-

covery. Apparentiy hoping for a quick and

favorable response to her motion, plaintiff

filed no ». *tice of appeal from the final

judgment prior to September 19, when the

thirty-day deadline prescribed by Fed.R.

App.P. 4(a)(1) elapsed. On September 22,

the district court denied the Motion to

Reconsider, pointing out that the reason

for its original dismissal of plaintiff's

Ciaims was legal, not factual, and that

further discovery could avail plaintiff

nothing. Not until October 20 did plaia-

tiff file a notice of appeal.

-7-

Mrs. Alvestad now appeals both from the

final judgment dismissing her claims and

from the subsequent denial of her motion to

reconsider. As explained below, we con-

clude that we may not consider her appeal

from the judgment because her notice of

appeal was not timely filed. We further

find that the district court did not abuse

its discretion in denying the posttrial

motion to reconsider. Accordingly, we

affirm the judgment entered below.

The Appeal From Final Judgment

Rule 4(a)(1) of the Federal Fules of

Appellate Procedure requires that a notice

of appeal be filed “within 30 days after

the date of entry of the judgment or order

appealed from.” The district court entered

its judgment dismissing Mrs. Alvestad's

suit on August 20. She filed her notice

of appeal on October 20, sixty-one days

later and thirty-one days late. Consequently,

her appeal must fail unless she falls within

some susteiiion to the rule.

-8-

Rule 4(a) (4) provides that the filing

of a timely motion for a new trial] under

Fed.R.Civ.P. 59 will toll the running of

the period for filing an appeal until the

entry of an order denying the Rule 59

motion. Mrs. Alvestad filed her motions

pursuant to Rules 59 and 60(b) on September

10. This was eleven days after the ten-day

limit prescribed by Rule 60(b). Clearly

the motion for a new trial was not timely.

While conceding the tardiness of her

motion, Mrs. Alvestad presses upon us the

applicability of a judicially created

exception to the timeliness requirements of

Rule 4. In Harris Truck Lines, Inc. v.

Cherry Meat Packers, Inc., 371 U.S. 215,

83 S.Ct. 283, 9 L.Ed.2d 261 (1962) and

Thompson v. Immigration and Naturalization

Service, 375 U.S. 384, 84 S.Ct. 397, ll

L.Ed.2d 404 (1964), the Supreme Court

excused a party's failure to file a timely

notice of appeal because of the “unique

circumstances" in which the:party had relied

-9-

upon a district court's erroneous, but

nonetheless explicit, grant of an extension

of the time for filing an appeal. Instead

of recounting in full the significant facts

of those decisions, we may resort to a

previous condensation of the “unique cir-

cumstances” that were present in both:

In each case, counsel for the appellant

was lulled into the false sense of

security that he could delay filing

the notice of appeal until after the

time prescribed by the applicable rules

because of the extension of time granted

by the court. In each case, the appellant

was misled by the words or conduct of

the trial court into believing that the

time for appeal was extended beyond that

prescribed by the applicable rules.

Hernandez-Rivera v. Immigration & Naturaliza-

tion Service, 630 F.2d 1352, 1355 (9th Cir.

1980) (emphasis supplied).

Mrs. Alvestad argues that the “unique

circumstances" of her predicament warrant

our extension of the Harris-Thomps

; ~10-.

Pag)

exception to salvage her appeal. The dis-

trict court heard argument on her motion on

September 18, one day before expiration of

the regular thirty-day limit for filing an

appeal. According to Mrs. Alvestad, the

court indicated its awareness that the dead-

line for appeal was imminent. Moreover, she

claims, the court “proceeded to make com-

ments which were properly and reasonably

construed by the Plaintiffs as indicating

that the Court would either rule favorably

or would rule by the next day so that Plain-

tiffs could file their notice of appeal."

Allegedly fearful that the filing of a notice

of appeal would force the court to relin-

guish jurisdiction before it could grant her

motions, Mrs. Alvestad allowed the thirty-

day deadline to elapse without acting on the

mandatory notice.

Even accepting this version of the hearing

(apparently no transcript exists), we are

not persuaded that it presents “unique cir-

cumstances" sufficient to excuse the failure

-ll-

My.

to file a timely appeal. While we willingly

have administered the Supreme Court's equitable

exception to avoid dismissal of an otherwise

tardy appeal, we have done so only when the

words or actions of the district court clearly

misled the aggrieved party into believing that

the filing of an appeal within the thirty-

day deadline was unnecessary. In Chipser v.

Kohlmeyer & Co., 600 F.2d 1061, 1963 (5th Cir.

1978), for example, we excused a plaintiff's

good faith reliance on a district court's

statement “which implied that a new trial

had been granted without qualification". As

in Harris and Thompson, the trial judge's

statements gave plaintiff every reason to

believe that the court effectively had

extended the deadline for appeal.

(1,2) In this case, however, the district

court's comments — whatever they may have

been — clearly stopped short of assuring

Mrs. Alvestad that her motion for a new

trial was timely or that the court was

extending the time for filing of a notice of

=—T™

+ e

‘os

appeal.+ at most, the court acknowledged

the approaching deadline (which, in itself,

should have put appellant on notice that the

‘deadline had not been extended) and indicated

that it would try to accommodate the plaintiff

with a speedy disposition of her motion. The

court's action is, if anything, subject to

construction as an invitation for Mrs.

Alvestad to request an extension of the time

for filing notice, as permitted by Fed.R.App.P.

4(a) (5).

If on September 18, one day before the

running of her time for appeal, Mrs. Alvestad

had truly believed the district court to be

favorably inclined toward her motions and

close to an immediate ruling, she could have

asked the court for an extension pursuant to

Rule 4(a)(5). Even when the ruling did not

issue until September 22, three days after

rT Certainly the district court's mere wil-

lingness to entertain a tardy motion for

a new trial does not relieve the p ve

appellant from responsibility for fi a

timely notice. See, e.g., Gribble v. Harris,

625 F.2d 1173, 1,.74-75 (5 Fo >

213-

her deadline was passed, she still had

twenty-seven days until Rule 4(a)(5) in

2 In-

which to ask for such an extension.

stead, having allowed the deadline for

appeal to pass without requesting any relief

from it, she waited nearly another month

before filing the motice of appeal on

October 20. Given this neglect of oppor-

tunities to obtein the desired ruling on

her motions withowt abandoning the appeal,

we cannot conclude that Mrs. Alvestad has

proven herself the victim of unique circunm-

stances justifying relief from the timeli-

ness requirement of Rule 4(a)(1). Conse-

quently, we do not consider the appeal from

the district court's judgment.

2 Alternatively, appellant could have filed

the notice of appeal. Although the filing

of a notice of appeal divests the trial

court of jurisdiction, see United aah

v. Dunbar, 611 F.2d 985, 98

1980) cert. denied, 447 U.S. 926, 100°

S.Ct. 3022, 65 L.Ed.2d 1120 (1980), Mrs.

Alvestad would have been able to seek

a remand to the district court when and

if it agreed that a new trial or some al-

teration in its judgment was appropriate.

-14-

The Rule 60(b) Motion

(3) The district court denied Mrs. Alvestad's

Rule 60(b) Motion to Reconsider on September

22, and the notice of appeal filed October

20 is timely with respect to this order.

Our review of the district court's action

is confined to whether denial of the motion

constituted an abuse of discretion. Seven

Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(Sth Cir. 1981).

7 (continued)

See 7 J. Moore, Federal Practice, Para.

60.30(2) at 419-24 (1970). If this

court had declined to take such a course, .

appellant still would have been in a

position to secure any merited relief

through our review of the district court's

actions.

Appellant filed a second Rule 60(b) mo-

tion on October 16. The district court

subsequently declined to consider this

motion when the October 20 notice of

appeal removed jurisdiction to this court.

The district court already had denied the

first Rule 60(b) motion (on September 22)

when appellant filed her notice of appeal

on October 20, however, so the timely

notice is sufficient to support an appeal

from that order.

Appellant relies upon three of the six

reasons for which a district court may re-

lieve a party from judgment under Rule 60(b):

"(1) mistake, inadvertence, surprise or

excusable neglect; ... (4) the judgment

is void; .. . or (6) any other reason

justifying relief from the operation of

the judgment." She then cited Compton v.

Alton Steamship Company, 608 F.2d 96 (4th

Cir. 1979), for the proposition that these

three grounds for relief collectively en-

compass a trial court's mistakes of law.

Mrs. Alvestad's complaint about the judgment,

simply stated, is that the court below pre-

maturely shut off her discovery and erro-

neously applied the Jones Act's definition

of “employer”, the law of conflicts, and

the doctrine of forum non conveniens to the

facts of this dispute.

(4) Without reaching the merits of these

contentions, we do not regard Rule 60(b) as

an appropriate avenue for relief from judi-

cial mistakes of this kind. The Fourth Circuit

-16-

in Compton undeniably construed Rule 60(b)

as providing for relief from legal errors

committed by a trial court. However, it

referred only to situations in which "the

mistake was clear on the record, and in-

volved a plain misconstruction of the

statute on which the action was grounded...."

608 F.2d at 104. Our own decision in

Meadows v. Cohen, 409 F.2d 750 (5th Cir.

1969), quoted extensively in Compton, held

a district court to have abused its dis-

cretion in not granting a Rule 60(b) motion

for relief from a judgment "which was clear-

ly at variance with the plain wording" of

a federal statute. Id at 753.

While we thus have admonished district

courts that they should honor requests to

reform a judgment in obvious conflict with

a clear statutory mandate, we have been

equally insistent that Rule 60(b) is not a

substitute for the ordinary method of re-

dressing judicial error — appeal. In its

origins, Rule 60(b) “represents an effort to

“codify the equitable practice with respect

to the correction of judgments after the time

for appeal has expired." Lafferty v. District

of Columbia, 277 F.2d 348, 351 h.6 (D.C.Cir.

1960). It is not a means for postponing

or escaping that expiration.

In Gary W. v. Louisiana, 622 F.2d 804

(Sth Cir. 1980), cert. denied 450 U.S. 994,

101 S.Ct. 1695, 68 L.Ed.2d 193 (1981), appel-

lant who had neglected to appeal an award

of attorneys’ fees against them sought re-

lief from the judgment through a Rule 60(b)

motion. On appeal from the district court's

denial of their motion, appellants maintained

that this denial was an abuse of discretion

because the court had committed the "mistake"

of applying the wrong legal standard. "(E) ven

if the trial court had misapplied an incorrect

legal standard when assessing legal fees,"

we observed in affirming the denial, “the

proper way to challenge its ruling in the

-18-

court of appeals is by appeal of its ruling,

not by appeal of a denial of a Rule 60(b)

motion." 622 F.2d at 805 (footnote omitted). 4

Similarly, in Fackelman v. Bell, 564 F.2d

734 (5th Cir. 1977), this court rebuffed an

appellant's effort, to use Rule 60(b) to

reopen an adverse judgment on the ground

that the district court had erroneously

interpreted the Freedom of Information Act:

All of these mistakes, if mistakes

they be, are mistakes of law and could

have been raised on appeal. The law

of this Circuit permits a trial judge,

in his discretion, to reopen a judgment

on the basis of an error of‘law...

But such reopenings are certainly not

mandatory. The orderly process of

appeal usually is far more appropriate

to deal with such errors.

564 F.2d at 736.

‘ Moreover, this court long ago listed

eight factors as stated by Prof. Moore

in his treatise, that guide a district

court's consideration of a Rule 60(b)

motion. See United States v. Gould, 301

of the foremost is "that the Rule 60(b)

motion is not to be used as a substitute

for appeal." See also Seven Elves, Inc.

v. Eske i, 635 F.2d > Cir.

Tosry Even Professor Moore, to whom we

may trace the controversial idea that

"mistake" under Rule 60(b) includes

“mistakes of law", see a Vv. wt

435 F.2d 1266, 1267 (ls

cert. denied. 402 U.S. 1012, 91 S. Ct.

-19-

Ae BD

(5) As Fackelman went on to explain,

we have attempted in our prior decisions

on Rule 60(b), including Meadows, merely

to avoid wasting appellate resources on

the perfunctory correction of “obvious

errors of law." Id. This case contains

no such facially obvious error. Although

appellant employs the customary rhetorical

device of depicting each alleged error as

clear and beyond question, the only thing

made clear by the numerous brief submitted

by all parties to this dispute is that the

legal questions presented are at least

arguable. Without intimating any view of

the merits, we are certain that an inquiry

into whether the court below properly

applied the seven-part choice-of-law test

announced in Lauritzen v. Larsen, 345 U.S.

571, 583-91, 73 S.Ct. 921, 928-32, 97 L.Ed.

1254 (1953) or the similarly multi-faceted

con

2189, 29 L.Ed.2da 435 (1971) (citing with

disapproval 7 J. Moore, Federal Practice

Para. 60.22(3) (1970)), agrees that Rule

60(b) is no alternative to an appeal. See

Moore, supra, Para. 60.27(2) at 353.

Sey

mane Lo

forum non conveniens analysis required by

67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) is

one which could have and more suitably which

should have been undertaken on appeal rather

than as a mere prelude to an attempt to show

discretionary abuse under Rule 60(b).

In sum, therefore, we cannot say that

the district court abused its discretion in

denying a Rule 60(b) motion alleging only

that the court had mistakenly interpreted

the law. The judgment below is

AFFIRMED.

APPENDIX 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NOS. 80-2157

81-2015

MRS. AAGE LASSE ALVESTAD,

Individually and as Representative

of the estate of Aage Lasse Alvestad

and their minor daughter,

Plaintiff-Appellant

versus

MONSANTO COMPANY, ET AL,

De fendants-Appellees.

Appeals from the United States

District Court for the

Southern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

(Opinion 4/1/82, 5 Cir., 198 , F.2d)

( May 17, 1982 )

Before THORNBERRY, TATE and WILLIAMS, Circuit

Judges

PER CURIAM:

(X} The Petition for Rehearing is DENIED

and no member of this panel nor Judge

in regular active service on the Court

having requested that the Court be polled

on rehearing en banc, (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for

Rehearing En Banc is DENIED. ..

ENTERED FOR THE COURT:

SIGNED/J. WILLIAMS

United States Circuit Judge

;

es,

APPENDIX 6A

XIV - UNITED STATES CONSTITUTION

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 abridge the privileges or

immunities of citizens of the United States;

ner shall any State deprive any person of

life, liberty, or property, without due

_ sayy wi of law; nor deny to any person within

ts jurisdiction the equal protection of the

laws. ..

APPENDIX 6B

Rule 4 - Federal Rules of Appellate Procedure

(a) Appeals in Civil Cases...

(5) The district court, upon a showing

of excusable neglect or good cause, may

extend the time for filing a notice of

appeal upon motion filed not later than

30 days after the expiration of the

time prescribed by this Rule 4(a). —

such motion which is filed before expira-

tion of the prescribed time may be ex

parte unless the court otherwise requires.

Notice of any such motion which is filed

after expiration of the prescribed time

shall be given to the other parties in

accordance with local rules. No such

extension shall exceed 30 days past such

prescribed time or 10 days from the date

of entry of the order granting the motion,

whichever occurs later. ..

“

ne?

ag ct

Rule 26 - Federal Rules of Appellate Procedure.

(a) Computation of Time. In computing

any period of time prescribed by these rules,

by an order of court, or by any applicable

statute, the day of the act, event, or de-

fault from which the designated period of

time begins to run shall not be included.

The last day of the period shall be included,

unless it is a Saturday, a Sunday, or a

legal holiday, in which event the period

extends until the end of the next day which

is not a Saturday, a Sunday, or a legal holi-

day. When the period of t prescr or

allowed is less than 7 days, intermediate

Saturdays, Sundays and legal holidays shall

be excluded in the computation. As used

in this rule “legai holiday” includes New

Year's Day, Washington's Birthday, Memorial

Day, Independence Day, Labor Day, Columbus

Day, Veterans Day, Thanksgiving Day, Christ-

mas Day, and any other day appointed as a

holiday by the President or the Congress of

the United States. It shall also include a

day inted as a holiday by the state

wherein the district court which rendered

the judgment or order which is or may be

ed from is situated, or by the state

ein the principal office of the clerk

of the court of appeals in which the appeal

is pending is located.

APPENDIX 6D

Rule 12 - Federal Rules of Civil Procedure

Defenses and Objections — When and How Pre-

sented — By Pleading or Motion — Motion for

Judgment on Pleadings

(b) How Presented. Every defense, in law

of fact, to a claim for relief in any plead-

ing, whether a claim, counterclaim, cross-

claim, or third-party claim, shall be asserted

in the responsive pleading thereto if one is

required, except that the following defenses

may at the option of the pleader be made

by motion: (1) lack of jurisdiction over

the subject matter, (2) lack of jurisdiction

over the person, (3) improper venue, (4)

insufficiency of process, (5) insufficiency

of service of process, (6) failure to state

a claim upon which relief can be granted,

(7) failure to join an indispensable party.

A motion making any of these defenses shall

be made before pleading if a further pleading

is permitted. No defense or objection is

waived by being joined with one or more other

defenses or objections in a responsive pleading

—

or motion. If a pleading sets forth a

claim for relief to which the adverse party

is not required to serve a responsive

pleading, he may assert at the trial any

defense in law or fact to that claim for

relief. If, on a motion asserting the

defense numbered (6) to dismiss for failure

of the pleading to state a claim upon which

relief can be granted, matters outside the

pleading are presented to and not excluded

by the court, the motion shall be treated

as one for summary judgment and disposed

of as provided in Rule 56, and all parties

shall be given reasonable opportunity to

present all material made pertinent to

such a motion by Rule 56...

—

APPENDIX 6E

Rule 56. Federal Rules of Civil Procedure.

Ss J ee

(b) For Defending Party. A party against

whom a claim, counterclaim, or cross-claim

is asserted or a declaratory judgment is

sought may, at any time, move with or with-

out supporting affidavits for a summary

judgment in his favor as to all or any part

thereof.

motion shall be served at least 10 days

before the time fixed for the hearing. The

adverse party prior to the day of hearing

may serve opposing affidavits. The judgment

sought shall be rendered forthwith if the

pleadings, depositions, answers to interro-

gatories, and admissions on file, together

with the affidavits, if any, show that there

is no genuine issue as to any material fact

and that the moving party is entitled to a

judgment as a matter of law. A summary judg-

ment, interlocutory in character, may be

rendered on the issue of liability alone

although there is no genuine issue as to

the amount of damages...

(e) Form of Affidavits; Further Testi-

Mony; Defense Required.

Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth

such facts as would be admissible in evidence,

and shall show affirmatively that the affiant

is competent to testify to the matters

stated therein. Sworn or certified copies

of all papers or parts thereof referred to

in an affidavit shall be attached thereto

or served therewith. The court may permit

affidavits to be supplemented or opposed by

depositions, answers to interrogatories, or

further affidavits. When a motion for sunm-

mary judgment is made and supported as

provided in this rule, an adverse party may

not rest upon the mere allegations or

Genials of his pleading, but his response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

showing that there is a genuire issue for

a0 me

trial. If he does not so respond, summary

judgment, if appropriate, shall be entered

against him.

(f) When Affidavits are Unavailable.

Should it appear from the affidavits of a

party opposing the motion that he cannot for

reasons stated present by affidavit facts

essential to justify his opposition, the

court may refuse the application for judg-

ment or may order a continuance to permit

affidavits to be obtained or depositions to

be taken or discovery to be had or may make

such other order as is just...

APPENDIX 6F

Rule 59. Federal Rules of Civil Procedure.

New Trials; Amendment of Judgments

(a) Grounds. A new trial may be granted

to all or any of the parties and on all or

part of the issues (1) in an action in which

there has been a trial by jury, for any of

the reasons for which new trials have here-

tofore been granted in actions at law in

the courts of the United States; and (2) in

an action tried without a jury, for any of

the: reasons for which rehearings have hereto-

fore been granted in suits in equity in the

courts of the United States. On a motion

for a new trial in an action tried without

a jury, the court may open the judgment if

one has been entered, take additional testi-.

mony, amend findings of fact and conclusions

of law or make new findings and conclusions,

and direct the entry of a new judgment.

(b) Time for Motion. A motion for a new

trial shall be served not later than 10 days

poe the entry of the judgment...

APPENDIX 6G

Rule 60 - Federal Rules of Civil Procedure

Relief from Judgment or Order

- « « (b) Mistakes; Inadvertence; Excusable

Neglect; Newly Discovered Evidence; Fraud,

etc. On motion and upon such terms as are

just, the court may relieve a party or his

legal representative from a final judgment,

order, or proceeding for the following rea-

sons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly discovered

evidence which by due diligence could not

have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has

been satisfied, released, or discharged, or

a prior judgment upon which it is based has

been reversed or otherwise vacated, or it is

no longer equitable that the judgment should

have prospective application; or (6) any

other reason justifying relief from the

operation of the judgment. The motion shall

be made within a reasonable time, and for

reasons (1), (2) and (3) not more than one

year after the judgment, order, or proceed-

ing was entered or taken. A motion under

this subdivision (b) does not affect the

finality of a judgment or suspend its

operation. This rule does not limit the

power of a court to entertain an independent

action to relieve a party from a judgment,

order, or pcoeeding, or to grant relief to

a defendant not actually personally notified

as provided in Title 28, U.S.C., Section

1655, or to set aside a judgment for fraud

upon the court. Writs of coram nobis, coram

vobis, audita querela, and bills of review

and bills in the nature of a bill of review,

are abolished, and the procedure for obtaining

any relief from a judgment shall be by motion

as prescribed in these rules or by an

independent action.

As amended Dec. 27, 1946, eff. Mar. 19,

1948; Dec. 29, 1948, eff. Oct. 20, 1949.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, Indi-

vidually and as

Representative of

the Estate of AAGE

LASSE ALVESTAD, and

their minor daughter

(Filed Sept. 10, 1980)

vs.

MONSANTO COMPANY,

ET AL

MOTION TO RECONSIDER ORDER OF

THE COURT DISMISSING CAUSE OF ACTION

AND TO REINSTATE CAUSE OF ACTION AND

MOTION TO GRANT A NEW TRIAL PURSUANT

TO RULES 59 AND 60 OF F.R.C.P.

TO THE HONORABLE JUDGE OF SAID COURT:

While the Defendant's Motions to Dismiss

under Rule 12(b) and for forum non conveniens

have been pending for quite some time, the

undersigned counsel took over as attorney

in charge on August 5, 1980, in lieu of

Louis Koerner, who became unavailable due

to ungoing litigation in the State of

Pennsylvania, and mailed on August 6, 1980

a Motion to Defer Determination of Defend-

ant's Motion to Dismiss Under Rule 12(b)

F.R.C.P., on Grounds of Forum Non Conveniens

and on Grounds of Limitations, which Motion

to defer and the transmittal letter are

attached hereto as Exhibit A and incorporated

herein by reference. On August 1l, 1980,

Plaintiff received a notice from the Court

which is attached hereto as Exhibit B and

incorporated herein by reference that the

Court was placing the Plaintiff's Motion

to Defer upon the "Court's written motion

docket for September 1, 1980". Nine days

later Plaintiff received the Memorandum

and Order of this Court dismissing this

cause on grounds of forum non conveniens,

same being attached hereto as Exhibit C

and incorporated herein by reference.

II.

Plaintiff is hopeful that the Court was

unaware of the Plaintiff's Motion to Defer

-2-

because the Court did not give the Plaintiff

an opportunity to have said Motion presented

and heard as per its notice of August ll,

1980 (Exhibit B). In that connection

Plaintiff would call to the attention cf

the Court that a notice of deposition is

attached to said Motion to Defer which calls

for the deposition of the corporate officers

of the various companies involved including

Monsanto Oil Company, U.K., Inc., Dolphin

International, Inc., Monsanto Company, and

the various individuals who would have the

information, charters, agreements, records,

Board of Directors lists and other infor-

mation which would be necessary for the

Plaintiffs to properly prepare their case.

Depositions were set for August 26 and August

27, 1980 at 9:00 a.m. but Defendants declined

to present their witnesses due to this Court's

Order of August 20, 1980.

Iit.

Your Plaintiff would respectfully show

to the Court that it would be premature

and a gross miscarriage of ju*.ice to pre-

> os

clude the Plaintiffs from taking the depo-

sitions, sought by the above referred to

notice and to permit the Plaintiffs to have

further discovery in this matter. Attempting

to get the Defendants to cooperate with res-

pect to discovery has been difficult if not

impossible in this case. The Plaintiffs

have filed interrogatories addressed to

the Defendants as indicated by the Court

file in this cause. Reference is now made

to said interrogatories. The Court file

also reflects that the Defendants have

either objected to or not filed answers to

those interrogatories. In the meantime

the Defendants, in their pleadings and

motions, have represented that the vessel

in question, the Borgny Dolphin, had nothing

to do with the United States and there was

no connection between the vessel and the

United States. Late last year the Plaintiff

understood from different sources that this

was not true and that the vessel was directly

-4-

and/or indirectly controlled by the United

States through various corporations and the

Plaintiff then began to secure documents from

a non-defendant, Occidental Petroleum Com-

pany. Those efforts were difficult and it

was not until May of this year that Plaintiff

was able to secure those documents. It took

séveral months for Plaintiff to eurenge te

secure said documents from Occidental (the

Defendants having refused to produce them

‘oetah interrogatories) and they were fin-

ally subpoenaed from Occidental; as an

indication of the difficulty involved,

letters and the deposition of Mr. Christovich,

attorney for Occidental, are attached hereto

and incorporated herein by reference and

marked Exhibit D.

Iv.

In order to secure said documents it be-

came necessary for Plaintiff's counsel to

make a trip to England which, as stated above,

was done in May. The documents finally pro-

duced by Occidental show that the vessel in

aS<

question was probably controlled by corpora-

tions which are American corporations and

which have their base of operations in the

United States. A sample of those documents

are attached hereto in a group marked Exhibit

E. Plaintiff respectfully urges the Court

to read these documents to see how incorrect,

misleading and hallow the representations

of Defendants have been in their pleadings

that this vessel had no connection with

the United States of America.

Vv.

At tne time those documents were finally

procured Plaintiffs' attorney incharge at

that time, Louis Koerner, was called to

trial in a very complicated anti-trust case

in Pennsylvania and though he expected to

have the case completed before now he is

still in trial in that case to this very

date. In July of this year when he saw that

the trial was going to continue on, Mr.

Koerner requested that the undersigned

attorney take charge of the case and it

was then, in early August of 1980 that

agZe

Plaintiff's counsel was able to procure

enough of the files to begin to take charge

of the case and manage the case on the

docket. As noted above, Plaintiff then on

August 11, 1980 filed a motion with the

Court to defer determination pending fur-

ther discovery and noticed the Defendant's

sannaueen for depositions. Plaintiffs

wqpld show that it would not have been

sufficient, proper or good practice to have

taken the deposition of these witnesses

before procuring documents from Occidental

which, through no fault of the Plaintiffs,

were not procured until May, 1980, Thus,

under these circumstances it would be a

gross miscarriage of justice to preclude

these Plaintiffs from having the opportunity

to corroborate the documents procured from

Occidental and to show clearly that the

Borgny Dolphin was in truth and in fact,

as found by the Court in cases hereinafter

cited, subject to the control and direction

of persons or officers living and working

oJo

in the United States of America. Inciden-

tally, the records which are attached hereto

were produced by Occidental pursuant to a

subpoena and therefore are official records

of this Court and are verified as per veri-

fication of this motion and pleading.

VII.

Plaintiff respectfully requests the

Court to call an oral hearing upon this

Motion since all defense counsel will

oppose same and at such time and place

Plaintiff would respectfully request

permission to show the Court the entire

files on the Alvestad case which would

demonstrate to the Court that diligent

efforts have been made by the Plaintiff

to obtain discovery through the most

cooperative manner and with the least

trouble to the Defendants. Finding that

such considerate tack has not produced

the desired information, Plaintiff has

noticed the deposition and intends to follow

through such depositions until the infor-

mation which will decide these issues one

way or the other, on a fully informed basis,

has been obtained. Plaintiff would show

that no harm will befall either party should

this Court decide to give the Plaintiff

opportunity to secure the information needed. ..

xX.

Plaintiff would further show that this

Court would commit grave error if it did

not permit an oral hearing on Defendant's

Motions to Dismiss and Plaintiffs’ Motion

for Rehearing. Those motions are summary

motions which terminate the litigation and

are of the most serious nature. There is

a multitude of authorites that it is abso-

lute error for a Court to refuse to grant

a hearing on such motions, and in this con-

nection Plaintiff would show that no such

hearing has been held in this case. If

this motion is not clear we now specifically

and expressly request this Court to grant |

us a hearing on the Defendants’ Motions to

Dismiss, upon our motions to reinstate,

-9-

upon our motions for new trial, and upon

our motions for additional time in which

to conduct discovery and for such other

and further motions as may be necessary and

proper to see that justice is done in this

case. In connection with the failure of

the Court to grant such hearing see Brown

v. Quinlan, 138 F.2d 228, 229 (7th Ciz., 1943);

Dredge Corporation v. Penner, 338 F.2d 456,

461-462 (9th Cir. 1964); Season-All Industries,

Incorporated v. Turkiye-Sise Ve Cam Fabrika~

lary A.F., 425 F.2d 34 (3rd Cir., 1970).

xI.

Moreover, it is error for the Court to

grant summary relief such as this when the

Defendants have not answered the interroga-

tories. Dollar v. Long Mfg., Inc., 561 F.2d

613 (5th Cir. 1977); Coleman v. Checker Taxi

Co., 325 F.2d 853 (7th Cir., 1963) and see

particularly Parrish v. Board of Commissioners

of Alabama State Bar, 533 F.2d 942 (Sth Cir.,

1976), where the Fifth Circuit Court stated:

"Of course, the whole purpose of dis-

covery in a case in ch a motion for

-10-

summary judgment is filed is to give

the opposing.party an opportunity to

discover as many facts as are avail-

able and he considers essential to

determine whether he can honestly

file opposing affidavits. We conclude

that the granting of the motion for

Summary udament by the Gist court

out r ring the production o

these documents r sted deprive the

liants of an opportunity to develo

e facts on c ey so © create

a fact issue betore the trial court."

emphasis ours).

Also see particularly Bane v. Spencer, 393

F.2d 108 ( Cir. 1968) where the

Circuit Court stated.

"Furthermore, it should be fundamental

that a defendant who has failed to

answer relevant and timely interroga-

tories is, at least normally, in no

position to obtain summary judgment.”

In this connection it is not necessary that

Plaintiffs file motions to compel; the rule

is simply based on the fact that a person

coming in the Court asking to terminate the

other side's litigation has to show that it

has done all that it can to produce infor-

mation required or asked for in connection

with the grounds for terminating their liti-

gation. These Defendants have produced

“lle

nothing, have been obstreperous about

cooperating on anything, and now they

want to benefit and profit from their

failure to produce information in answer

to interrogatories and the Courts hold that

it is unjust and unproper (to grant) summary

relief (where Defendants have) not done

(their) part in cooperating with respect

to discovery.

XII.

Therefore, your Plaintiff urgently

requests this Court not to deprive this

widow of her day in Court. Numerous cases

indicate that the trend in American law

is that the Courts are disregarding the de-

vice of Defendant's setting up subsidiary

and foreign corporations in order to avoid

American law, when a realistic view of the

situation is that the ultimate control of

a rig really is based in the U.S. (see

authorities cited above and opinions

attached hereto). Most importantly, the

Plaintiff simply has not had its day in

Court with respect to the Defendants' motions.

al2@=

As many Courts have indicated, time is not

the sole measure of appropriate discovery;

when the record clearly reflects, as it does

here, that the Plaintiffs nave been diligent

in seeking the documents which it finally

got, not from the Defendants, but from a

non-party, and that when those documents

were obtained, it revealed the distinct

possibility, even probability, that the rig

in question was ultimately controlled out

of the U.S., it is Plaintiffs’ position

that it would be a clear abuse of error to

refuse further discovery on the Defendants’

motions. The Fifth Circuit has recently

granted one or more writs of mandamus in

cases where the Trial Court has failed to

have an oral hearing on Motions to Dismiss.

See In Re Cooper Fire & Rubber Co., Peti-

tioner, Cause No. 78-2105 (5th Cir., dated

8-31--8); see also In Re Textron, Inc., et

al, Petitioners, Cause No. 79-2216 (5th

Cir., dated 11-19-79).

=} 3@

Respectfully submitted,

LAW OFFICES OF

BENTON MUSSLEWHITE,

Inc.

SIGNED/BENTON MUSSLEWHITE

3506 Travis St.

Houston, Texas 77002

(713) 520-0621

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

(Filed Oct. 16, 1980)

NO. H-79-1883

MOTION OF THE PLAINTIFFS FOR RELIEF

FROM THE FINAL JUDGMENT OF THIS COURT

DATED AUGUST 20, 1980,

PURSUANT TO RULE 60(b)

OF THE FEDERAL RULES OF CIVIL PROCEDURE

AND FOR RELIEF UNDER THE GENERAL

POWER OF THIS COURT TO RESCIND

ITS ORDERS AND JUDGMENTS AND REINSTATE

A CAUSE OF ACTION AND GRANT FURTHER RELIEF

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiffs and moves the Court

for relief from the Judgment of August 20,

1980, requesting the Court to rescind said

Order and Judgment to reinstate this cause

of action, to grant reasonable time for

discovery with respect to the Defendants’

Motion to Dismiss, and, upon completion of

discovery, to deny Defendants’ Motion to

Dismiss, grant this Plaintiff its day in

Court and in such respects would respectfully

show as follows, to-wit:

~ An Itemization of Procedural Events Before

This Court and the Posture of

this Case Procedurally

1. Plaintiff filed suit on January 27,

1978 in the United States District Court for

the Eastern District of Texas, Sherman Divi-

sion, against the Defendants, Monsanto Company

(hereafter referred to as “Monsanto") and

Monsanto Oil U.K. (hereafter referred to as

"Monsanto U.K."). Plaintiff alleged a cause

of action under the Jones Act, 46 U.S.C.

Section 688, General Maritime Law; and The

Death on the High Seas Act, as well as the

Wrongful Death and Survival Statutes of the

State of Texas. The Plaintiff alleged that

the decedent, Aage Lasse Alvestad, was a crew

member of the vessel, “Borgny Dolphin", on

about the 22nd day of March, 1975, when

he met his death due to the unseaworthiness

of the Borgny Dolphin and "the negligence

of the agents, servants and employees of

the Defendants". The Estate of Mr. Alvestad

sought damages on behalf of his surviving

widow and child.

o2=

2. On March 14, 1978, one of the Defend-

ants, Monsanto Company, filed a Motion to

Dismiss and/or for Summary Judgment, without

first having answered and the Court advised

such Defendant that it was improper to bring

such Motion before filing an answer. There-

after, said Motion was considered moot, never

responded to and never brought forward by

the Defendant. The Court's Order ordering

the Defendant to Answer before filing any

Motion for Summary Judgment was dated April

3, 1978 and is now referred to for all

purposes.

3. Soon after the filing by the Defendant

Monsanto, of its Motion for Summary Judgment

and Motion to Dismiss, Plaintiff submitted

Interrogatories to the Defendant Monsanto

and the Defendant Monsanto U.K. and on April

5, 1978 the Defendant Monsanto filed its

Objections to the Interrogatories and a

Motion for Protective Order, urging the Court

that it should not have to answer any of

said interrogatories. Said interrogatories

were aimed at Defendant's Motion to Dismiss.

-3-

4. Thereafter, the Plaintiff filed a

Motion to Compel Answers to Interrogatories

by the Defendant Monsanto and, following

the filing of such Motion, the Defendant

Monsanto, on May 26, 1978, filed partial

Answers to Interrogatories. The Defendant

refused and failed to answer (which was also

made a part of their Objections to Interro-

gatories and Motion for Protective Order)

Interrogatories Nos. 9, 10, ll, 15, 21, 27,

29, 23, 25, 34, 35 and 36...

5. Defendant Monsanto admitted in its

Memorandum Brief and Response to Plaintiffs’

Motion to Compel Answers to Interrogatories,

filed in the Sherman Court, all of which

pleadings were transferred to this Court,

that “Interrogatories Nos. 9, 10, ll, 15,

21, 27 and 29 are obviously intended to

develop information on facts the Second

Circuit at least has held to be significant

under Rhoditis....as noted, Monsanto has not

jurisdiction in issue..." (page 3 of Monsanto

-4-

Company's Memorandum Brief). Therefore,

Monsanto even agrees that the information

requested in the interrogatories was scle-

vant to a Motion to Dismiss (which it stated

at that point had not been placed in issue)

but when a subsequently filed motion to

Dismiss on the same grounds as previously

filed by the Monsanto Defendants was placed

in issue this Court never compelled the

Defendant to answer those questions which

the Defendant admitted themselves were

erial to the dismissal i in issue.

Without any quetsion, this Court erred in

failing to do so, as noted by decisions

hereinafter discussed.

6. In that connection, we call the

Court's attention to the fact that it noti-

fied all parties on April 12, 1978, that the

Plaintiff had filed a Motion to Compel Answers

to Interrogatories, that the Motion had been

served on all adverse parties, and that “the

local rule is to consider motions on the

pleadings, without oral hearing, unless,

on showing of good cause, an oral hearing

is granted...request for oral hearing, if

any, should be made when the motion or the

reply is filed.” The Court made it clear

that if neither party requested an oral

hearing upon such motion to Compel same

would be ruled upon by the Court upon the

pleadings and the motions without such

hearing. This rule conforms to the rule

of the Houston Division for the Southern

District of Texas. No oral hearing on the

motion to compel was ever requested by

any of the parties; yet despite the Court's

notification, neither the Sherman Division

nor the Houston Division ever ruled upon

Plaintiffs’ Motion to Compel. There is

nothing in the rules we know of that places

a burden upon the Plaintiff, or any party,

to request the Court a second time to rule

upon motions to compel. Once the Court

indicates it will rule upon such motion,

all parties certainly should be entitled to

assume that it will do so prior to taking

-6-

such drastic action as granting a motion

to dismiss on matters to which the motion

to compel related. Since the court never

ruled on the Motion to Compel, the Defendants

never answered the mentioned Interrogatories

or provided the information requested therein.

14. On July 28, 1978, the Plaintiffs

submitted Additional Interrogatories and

Requests for Production of Records to

Defendants Monsanto and Monsanto U.K.

Thereafter, both Defendants filed objections

to said interrogatories and never answered

said Interrogatories. Said interrogatories

included crucial questions such as:

(No. 1)....identify all officers, agents

or employees of ‘Defendant’ who exercised

control over and gave direction to the

decedant, to his immediate employers, to

Dolphin International, S.A. or to Dolphin

International, Inc., or who were in charge

of or engaged in supervision of contractors,

subcontractors or crew members in the ....

-7J-

operation....of the 'Borgny Dolphin';....

" (No.2) identify all documents, communica-

tions and contacts concerning the Borgny

Dolphin, its chartering, control or its

operation and all other contractual or legal

relationships involving the operation of

said vessel or contacts or contracts with

Dolphin International, S.A., Dolphin Inter-

national, Inc.; all reports, invoices or

other materials concerning the maintenance

or oepration of the *"Borgny Dolphin’; and all

reports concerning the casualty and investi-

gation of the death of the decedant; ali

contractual and other agreements between

one or more of the Defendants and Dolphin

International, S.A. or Dolphin International,

Inc.; and all payroll records, time sheets

or documents pertaining to the work activity

of the decedcant;....(No. 3) identify all

Defendants’ employees of either the Monsanto

companies or the Dolphin companies who were

employed or consulted or had employment duties

regarding the operation or maintenance of

the Borgny Dolphin;....(No. 5) state places

of incorporation and principal places of

business of the Monsanto and Dolphin com-

panies, and the 3 X Diving Company;....

(No. 6) identify all the documents between

the two Dolphin companies, the Monsanto

companies, and the 3 X Diving Company;....

(No. 9) identify all owners of the Borgny

Dolphin and the percentage or fractional

ownership of each;....(No. 10) identify

the persons of entities and their relation-

ship to any of the various Defendants and/

or the Borgny Dolphin, including Dolphin

International, Inc., Dolphin International,

S.A., Demenex, 3X Diving Company, Ltd., Bob

Colomy, Martin David, Gary Miller, David

Compton, Fred Olsen and Company, Kurt Knut

Solvang, Newton Schoals, Ron Edwards, Chemical

Bank of New York, Export Import Bank of

Washington, D.C., Occidental Oil Company,

Occidental Britain, Inc.;....(No. 11) identify

all diving contracts in effect concerning the

Borgny Dolphin pursuant to which the dece-

dant was employed, and particularly the

‘parties to the contract and those persons

or entities who received copies of said

contract;....(No. 12) identify all drilling

contracts in effect concerning the Borgny

Dolphin pursuant t- which the decedant was

employed or was working, including the

parties to the contract and the persons

who received copies of same;....(No. 13)

identify the person responsible for the

financing the operation of the Borgny

Dolphin;....(No. 14) whether the decedant

was employed as a seaman or what task he

was performing on the date of his easuatty,

including a description of his duties and

identify the person or persons responsible

for his being hired and controlling his work

on board the vessel;....(No. 15) identify

all persons, firms snd coxbanskians to whom

funds were remitted as derived from the ac-

tivities of the Borgny Dolphin;....(No. 16)

identify all documents, including contracts

-10-

submitted tothe Chemical Bank of New York

and the Import-Export Bank in Washington,

D.C., with regard to the financing and

operation of the Borgny Dolphin;.... (No.

17) identify all entities, other than

Monsanto U.K., who the Defendants contend

caused or contributed to the death of the

2ecedant and/or was a Jones Act employer

of the decedant, other than Monsanto U.K.;

«++-(No. 19) identify all employees of the

Defendants, Dolphin International, S.A.

and Dolphin International, Inc., who were

employed in a supervisory capacity on the

vessel in question;....(No. 20) identify

the Borgny Dolphin, including the type of

vessel it was;....(No. 21) identify the

company ultimately responsible for the

operation of the Borgny Dolphin;.... (No.

22) identify the parties responsible for the

promulgation of rules and regulations and

the carrying out of such rules and regula-

tions concerning the operation of the Borgny

Dolphin;....and (No. 25) explain the nature

-ll-

the relationship each of the Monsanto

Defendants had to the Borgny Dolphin on

March 22, 1975. The other Interrogatories

contained therein related to liability, the

question of unseaworthiness and/or negli-

gence. In that same document, the Plaintiffs

requested production of all the documents

that were identified. It is inconceivable

that this Court would rule without answers

to those interrogatories having been made

and without and production of the documents

mentioned therein. As we point out under

Argument and Authorities below, it is self-

evident that all of said questions were

absolutely and totally relevant and con-

trolling of the decision to be made by

this Court. ...

17. On November 27, 1979, the Defendant

Monsanto U.K. filed its Motion to Dismiss

on the grounds of limitations, alleging

that Plaintiffs' suit was time barred

because the only remedy available to the

Plaintiffs was the Death on the High Seas

a}Q<

Act which had a two-year statute of limita-

tions. It asserted that as a matter of law

the decedant was not the Jones Act employee

of the Defendant Monsanto U.K. No affidavit

was attached to said motion. On January 3l,

1980, Dolphin and Dolphin S.A. filed a Motion

to Dismiss on grounds of limitation. The

Dolphin Defendants contended that the cause

of action was time barred against them be-

cause, as a matter of law, the decedant was

not the Jones Act employee of said Defendants,

but was the Jones Act employee of 3X Diving

Company, Ltd. of Stavenger, Norway, and

that the Plaintiffs’ only cause of action

against the Dolphin Defendants was under

the Death on the High Seas Act which provides

for a two-year Statute of Limitation and

therefore Plaintiffs cause of action was

barred by limitations. No affidavit was

attached to said Motion. On January 9,

1980, the Defendant Monsanto filed a Motion

to Dismiss under Rule 12(b), F.R.C.P. and

on grounds of forum non conveniens. Again,

=} 30

no affidavit was attached to said Motion.

Giese was an affidavit filed in conjunction

with the Motion prematurely filed by Monsanto

Company in March, 1978, namely the Affidavit

by Louis Fernandez, but in that affidavit

he merely swore that Monsanto Company did

not lease, charter, or control the Vessel,

"Borgny Dolphin", and that Aage Lasse

Alvestad was not its employee. Those gen-

eral statements applied only to Defendant

Monsanto Company, and not to the Defendant

Monsanto U.K.

18. Since the Defendants had failed to

answer the interrogatories of the Plaintiffs

or to produce the requested documents, the

Plaintiffs began working through other

sources in an effort to secure relevant

documents. On October 16, 1979, A. R.

Christovich, Jr., who represents the

Occidental companies, sent certain documents

to the Plaintiffs which are attached to the

affidavit attached to this motion but in

-14-

said letter Mr. Christovich refused to

provide the 3X Diving Contract, Occidental

of Britain, Inc. letter to 3X concerning

"Borgny Dolphin” work and a report of

David Colomy concerning the “Borgny Dol-

phin", all of which were extremely relevant

documents (said letter is attached hereto

as Exhibit A-l1). On January 28, 1980,

Plaintiffs got out a subpoena duces tecum

to A. R. Christovich of Occidental Petroleum

Company, subpoenaing the documents in

Occidental File No. 1-20-21, relative to

the "“Borgny Dolphin". A copy of said sub-

poena duces tecum is attached hereto as :

Exhibit A-2. Simultaneously, the Plaintiffs

noticed the deposition of Mr. Christovich

and noticed all parties of its intent to

secure production of documents from Occi-

dental Petroleum Company on February ll,

1980. Said notice is attached to this Motion

as Exhibit A-3. On February 6, 1980, Mr.

Christovich responded to the subpoena duces

tecum by letter to Louis R. Koerner who,

-15-

at that time was Plaintiffs' Attorney In

Charge; the sum and substance of the letter

was that Mr. Christovich refused to appear

on February 11, 1980. Said letter is

attached hereto as Exhibit A-4.

19. In the meantime, this Court had

placed on the Court’s Motion Docket the

Defendant Monsanto Company's Motion to

Dismiss for January 28, 1980 and then reset

the submission date to February 18, 1980.

However, on February 18, 1980, Cynthia

Norris of Mr. Koerner's office wrote

Defendant attorney, Randy McClanahan, with

carbon copy to the clerk, documenting the

agreement of the parties "to pass the sub-

mission date of February 18, on the out-

standing motions in the above referenced

cause until after production of documents

on February 29, 1980....after the production

of documents, we will need to decide on a

date for submission of the motions....In

accordance with my agreement with you, I

will copy the entire file which is produced

during the document production and forward

=T=

same to you...I understand that you will

not be in attendance but that Steven DeWolf

of Vinson and Elkins will....by copy of this

letter, I am advising the Court of our

agreement...If you have any quetsions con-

cerning the upcoming production of documents,

please do not hesitate to call." (Said let-

ter is attached hereto as Exhibit A-5). By

virtue of the foregoing letter, the parties

passed the submission date of February 18,

1980 and so far as we know no other sub-

mission date was ever reset by the Court nor

the es prior to the Court rulin

on the motions on August 20, 1980.

20. . . . On March 30, 1980, Mr. Martin

R. David of Occidental International Oil,

Inc., the person Mr. Cossey wrote and said

would provide the documents, was written to

set up an appointment on May 12, 1980 for

the production of the documents. Said let-

ter is attached hereto as Exhibit A-1ll.

Copies of that letter were sent to Mr.

McClanahan as well as Mr. Steven DeWolf and

@jJ=

Mr. Paul Brezac who is the Court coordinator

for this Court. On April 14, 1980, Mr.

Patton of the Occidental International Oil

Company, Inc., with office in London, wrote

to confirm the appointment of May 12, 1980

for the production of the documents in

question. Said letter is attached hereto

“as Exhibit A-12.

21. Following production of the records

on May 12, 1980 (said records and the

relevance thereto are hereinafter discussed)

Plaintiffs attorney in charge, Mr. Louis

Koerner, went to trial in a complicated

anti-trust case in June, 1980 in Pennsyl-

vania (see Affidavit and sworn averments

in Plaintiffs' Motion to reconsider pre-

viously filed with this Court, which Motion

to reconsider and all attachments thereto

are incorporated herein by reference).

Realizing that said case was going to go

on longer than he thought,Mr. Koerner, in

July, 1980, asked Mr. Musslewhite to take

over this case as attorney in charge, which

-18-

Mr. Musslewhite agreed to do. Within two

weeks, Mr. Musslewhite was able to pick up

a great portion of the file and immediately

thereafter, on August 6, 1980, filed a Motion

to Defer Determiuation of Defendants’ Motions

to Dismiss, which Motion to Defer is attached

hereto as Exhibit B-l. Attached to that

Motion to Defer was a Notice of Intent to

Take Oral Depositions of relevant corporate

officers of the Monsanto Defendants and

the Dolphin Defendants, which Notice of

Intent to Take Oral Deposition is attached

hereto as Exiibit B-2. The depositions were

set for August 26 and August 27, 1980. On

August 11, 1980, this Court notified the

Plaintiffs that their Motion to Defer would

be placed on the Court's Written Motion

Docket for September 1, 1980. Said Notice

of the Court is attached hereto as Exhibit

B-3. On August 20, 1980, despite the fact

that this Court had not reset submission

after the parties had agreed to pass the

s ssion of F 8 80 (with

copies of such agreement to the court

coordinator) and despite the fact that

the Plaintiffs had filed a Motion to Defer

and had noticed depositions for discovery

th res t to fe . tions and

the Court had not ruled upon said Motion

to Defer, and despite the fact that the only

sworn affidavit filed in support of Defen-

dants' motion was that of Louis Fernandez,

which only referred to the Monsanto Company

and did not refer to the Dolphin Defendants

or Monsanto U.K., this Court entered a

Memorandum and Order and Final Judgment

dismissing this cause of action on the

grounds that suit under the Death on the

High Seas Act was barred by limitations and

that the Jones Act suit would be dismissed

on grounds of forum non conveniens and choice

of law. Said Memorandum and Order is referred

to for all purposes. On August 15, 1980,

Plaintiffs filed their Motion to Reconsider >

Order Dismissing Cause of Action and Motion

to Reinstate and Motion to Grant a New Trial.

Said Motion was placed upon the Courts

"Written Motion Docket for October 6, 1980".

Said Motion to reconsider and to reinstate

is referred to for all purposes and incorpo-

rated herein by reference. The Notice of

the Court setting the Motion on the Court's

Written Motion Docket is incorporated herein

by reference. Since October 6, 1980 would

have been more than thirty days following

the Court's final Judgment and Order of

August 20, 1980 the Plaintiffs specially

requested a hearing and the earliest date

such hearing could be arranged was September

18, 1980, just one day before the 30 days

from the final Judgment and Order would:

expire.

21. A hearing was had on September 18, 1980

and as such hearing began the Court stated

that at the time it entered its Memorandum

and Order of August 20, 1980 it was not

aware of the Plaintiffs’ Motion to Defer

or the Notice of Depositions attached thereto.

The Court further indicated that it realized

the Plaintiffs had a time limit with respect

to filing an appeal. Because of such com-

ments, Plaintiffs' counsel assumed that the

Court was aware of the fact that Plaintiffs’

time for appeal would expire the next day.

Moreover, in view of the nature of the

discussion that day, it appeared that the

Court might favorably consider allowing

further discovery, at least with respect

to the Monsanto Defendants. Plaintiffs’

counsel bona fidely and properly assumed

that, when the Court did not rule on Friday,

August 19, 1980, the last day for the

plaintiffs to perfect its appeal, that

the Court would at least partially grant

Plaintiffs’ Motion to Reinstate and

Reconsider (see affidavit attached hereto

as Exhibit C). Moreover, Plaintiffs were

aware of this same Court's order in Eva

Wilkinson v. Phillips Petroleum Company

wherein tne Court had entered a judgment

of dismissal. The Plaintiffs there had

filed a request for reconsideration and

to reinstate that cause of action and be-

cause the Court did not rule on the 30th

day, the Plaintiff filed its Notice of

Appeal andthe court entered an Order stating

that it had no authority to consider the

Motion to Reinstate because the Plaintiff

had filed a notice of appeal, the Court

being of the opinion that “this Court is

without jurisdiction to consider plaintiffs'

motion", citing Kirtlind v. J. Ray McDermott,

Inc., 568 F.2d 1166, 1170 (5th Cir., 1978)

and U.S. v. Dunbar, 611 F.2d 985, 987 (5th

Cir. 1980). Said Order in Wilkinson v.

Phillips Petroleum Company C.A.NO. H-78-673,

is attached hereto as Exhibit B-5. Despite

the fact that this Court in this case stated

at the September 18 hearing that it was

aware of the imminent running of the 30-day

appeal period, the Court did not rule on

September 19, 1980 and did not rule until

September 22, 1980, three days after the

30-day period had expired. On that date the

-23-

Court entered an order denying the Plain-

tiffs' all relief. Said Order is attached

hereto as Exhibit B-6.

22. At the time the Court entered its

Memorandum and Order of August 20, 1980

and its Order denying Plaintiffs’ Motion

to Reinstate and Reconsider of September 22,

1980, the Court still, as far as we know,

had not ruled on Plaintiffs' Motion to

Compel the Monsanto Defendant to answer the

unanswered question in the first set of

interrogatories. Moreover, the Court had

not ruled upon the Defendant's Motion for

Protective Order filed by the Monsanto

Defendants with respect to the Second Set

of Interrogatories and Request for Production

of Documents submitted by the Plaintiffs to

the Monsanto Defendants. Moreover, this

Court had never reset a submission date on

the "Written Motion Docket" or set an oral

hearing date for the various Motions to

Dismiss and/or for Summary Judgment of the

Defendants. Moreover, the Court had not

-24-

ruled on the Plaintiffs' previously filed

Motion to Defer and Notice of Deposition

of the corporate officers of the Defendents

for depositions with respect to their various

Motions to Dismiss. ...

APPENDIX 9

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, ET AL

Plaintiffs, :

g::

vs. 3 Cele NO. H-79-1883

MONSANTO COMPANY, : (Filed Oct. 20, 1980)

ET AL, :

Defendants :

NOTICE OF APPEAL

Notice is hereby given that the above-

named Plaintiffs hereby appeal to the United

States Court of Appeals for the Fifth Cir-

cuit from the judgment entered in this

cause of action on the 22nd day of September,

1980, by Judge Norman W. Black.

Respectfully submitted,

LAW OFFICES OF

BENTON MUSSLEWHITE, INC.

3506 Travis Street

Houston, Texas 77002

(713) 520-0621

SIGNED/BENTON MUSSLEWHITE

Attorney in Charge for

: Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a true and correct

copy of the above and foregoing Notice of

Appeal has been forwarded to all counsel

of record by placing a copy of same in the

United States Mail, postage prepaid and

properly addressed, all on this the i7th

day of October, 1980.

S/BENTON MUSSLEWHITE

APPENDIX 10

LAW OFFICES OF

LOUIS R. KOERNER, JR.

A PROFESSIONAL LAW CORPORATION

730 CAMP STREET

NEW ORLEANS, LOUISIANA 70130

February 18, 1980

Randy McClanahan, Esq.

Baker & Botts, Esqs.

1 Shell Plaza

Houston, Texas 77002

Re: Mrs. Aage Lasse

Alvestad, et al

v. Monsanto Company,

et al

Civil Action No.

H-79-1883

Dear Randy:

This. letter is to confirm our conversation

this morning in which you agreed to pase

the submission date on February 18th on

the outstanding Motions in the above ref-

erenced case until after production of

. G@ocuments on February 29, 1980. After

production of the documents, we will need

to decide on a date for submission of the

Motions.

In accordance with my agreement with

you, I will copy the entire file which is

produced during the document production

and forward same to you. I understand that

you will not be in attendance, but that

Steve DeWolf of Vinson & Elkins will.

By copy of this letter, I am advising

the Court of our agreement. I attempted

to reach the Clerk's office today but

apparently due to the holiday, the office

was closed, as there was no answer. I will

contact the Court on February 19th with

regard to this matter. If you have any

questions concerning the upcoming production

of documents, please do not hesitate to call.

With kindest personal regards, I remain

Sincerely,

S/Cynthia A. Norris

CAN: tc

cc: Jesse E. Clark, Clerk

APPENDIX 11

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MRS. AAGE LASSE

ALVESTAD, Indi-

vidually and as

Representat.ve of

the Estate of AAGE

LASSE ALVESTAD,

and their Minor

Daughter,

C.A. NO. H-79-1883

Plaintiffs

(Filed Aug. 6, 1980)

vs.

MONSANTO COMPANY,

ET AL

MOTION TO DEFER DETERMINATION OF

DEFENDANTS' MOTIONS TO DISMISS UNDER

RULE 12b OF F.R.C.P., ON GROUNDS OF

FORUM NON CONVENIENS AND ON

GROUNDS OF LIMITATIONS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, by and through

their attorney of record, and files this

Motion to Defer Determination of Defendants’

Motions to Dismiss under Rule 12b of F.R.C.P.,

on grounds of forum non conveniens, and on

grounds of limitations and as grounds therefor

would respectfully show unto this Honorable

Court the following, to-wit:

Defendants have filed a Motion to Dismiss

under Rule 12b of Federal Rules of Civil

Procedure, on grounds of forum non conveniens

and on grounds of limitations.

II.

Movant would show that he is filing

additional briefs and undertaking additional

discovery concerning jurisdictional matters

in order to develop the facts in this case

that were considered relevant in Susan Keane,

et al v. Global Marine, Inc., et al, C.A. No.

H-77-1006, U.S.D.C. &.D., Tx., Houston Divi-

sion, Honorable John V. Singleton's Memoran-

dum and Order dated October 24, 1978.

Itt.

In this connection, Movant would show

that he is filing Notices of Deposition,

a copy attached hereto, of the officers,

agents and/or employers of Defendants with

=2o

the most knowledge of facts relevant to a

determination of Defendants’ Motions to

Dismiss. The completion of this discovery

is necessary in order that Movant can pro-

perly respond to Defendants’ Motions. As

held by the Supreme Court of the United States

in Hospital Building Co. v. Trustees of Rex

Hospital, 425 U.S. 738, 48 L.Ed.2d 335, 96

S.Ct. 1848 (1976), to-wit:

"Dismissals prior to giving the Appellant

ample opportunity for discovery should

be granted very sparingly."